Checks and Balances: A Deep Dive into Judicial Review in Mauritius

Qs & As

By Lex

In any modern democracy, the Constitution serves as the ultimate law of the land, establishing the rules by which a nation is governed. While various branches of government are tasked with upholding this foundational document, the judiciary holds a unique and powerful position. Its role as the supreme guardian and interpreter of the Constitution allows it to act as a crucial check on both the legislative and executive branches. In this week’s Qs&As, Lex explores the vital function of judicial review, examining how courts, including the Supreme Court and the Privy Council, can nullify government actions to ensure they are consistent with constitutional principles and fundamental rights.

* It is said that in most modern democracies, the Constitution is the supreme law of the land. The role of the courts, particularly the highest courts — not the President of the Republic or whoever is the head of State — is to act as the ultimate guardian and interpreter of the Constitution. Is that correct?
The President of the Republic must uphold and defend the Constitution under Section 28 of the Constitution. The Supreme Court of Mauritius, on the other hand, acts as the guardian of the Constitution, functioning as its highest interpreter and enforcer, ensuring that all laws and government actions are consistent with the nation’s supreme law.

* Does it mean that, as interpreter of the Constitution, the highest court of the land — the Supreme Court, and the court of last appeal, the Privy Council — can nullify a government’s decision, even one made by an elected government?
Yes, as an interpreter of the Constitution, the highest court of the land, the Supreme Court, and the Privy Council can nullify a government’s decision. The Supreme Court and ultimately the Privy Council exercise judicial review, scrutinizing legislation and executive actions to prevent unconstitutional breaches and to uphold the rule of law and fundamental rights guaranteed by the Constitution.
* Could you explain, using a recent case as an example, the practical difference between a court nullifying a government decision because it was unlawful versus it being unconstitutional?
What matters is the decision’s compatibility with the Constitution. Both a decision and a piece of legislation will be struck down if found to be unconstitutional.

* Is it correct to say that a court’s job is to review whether the government’s decision-making process was legally sound, not to substitute its own judgment for that of the elected or appointed officials?
It’s generally correct to say that a court’s job is to review the legality of a government’s decision-making process, not to substitute its own judgment.

A court will not question the wisdom or merits of a government’s policy or decision. Instead, it will examine whether the decision-making process was flawed in a way that makes it illegal. The courts look for three main types of flaws: illegality, irrationality (or unreasonableness), and procedural Impropriety.

If a court finds one of these flaws, it will declare the decision unlawful. It does not replace the government’s decision with its own.

* We understand that a government decision can be nullified if it violates fundamental constitutional rights. Are there numerous examples of government decisions in our country that were successfully challenged on this ground?
The classic example was the striking down of Section 250(1) of the Criminal Code, which punished consensual sex between male adults. In October 2023, the Supreme Court of Mauritius ruled this law unconstitutional for discriminating against gay men, overturning a long-standing colonial-era law and upholding the rights of LGBTQI+ individuals.
* Does this mean that the government’s legitimate objectives of fighting crime — financial, drug trafficking, corruption, etc., — or reforming our pension system could also be jeopardized if the relevant laws were to be considered unconstitutional by our courts?
The Government has to legislate to maintain law and order. In so doing, it may pass legislation that does not satisfy the constitutionality test. In the Noordally case in 2006, for example, the executive decided that certain categories would not be granted bail. The Supreme Court held that this was inconsistent with the Constitution. The court observed that the trial of persons charged with criminal offences, and all incidental or preliminary matters pertaining thereto, are to be dealt with by an independent judiciary. Addressing the matter of bail, the court concluded that it was not in accord with the letter or spirit of the Constitution, as it then stood, to legislate so as to enable the executive to overstep or bypass the judiciary in its essential roles.
* What specific constitutional principles or legal precedents should the drafters of laws have considered to ensure that anti-crime legislation or pension reform withstands judicial scrutiny and avoids being declared unconstitutional?
A legislature is bound by legal and constitutional principles when legislating, including fundamental rights, the rule of law, and principles of statutory interpretation, which ensure laws are compatible with foundational values and can be subject to judicial review if they fail to uphold these standards. Legislators must, of course, abide by any decision of the Supreme Court and keep that in mind when drafting laws.
* Could a government simply ignore a court’s decision in a judicial review case? What are the legal and constitutional consequences of such an action?
No, a government generally cannot ignore a court decision under the rule of law, as judicial decisions are binding, and defiance can lead to severe consequences, including contempt of court and undermining of the judiciary’s authority. However, governments can appeal decisions, and the legislature can sometimes amend the laws or statutes at issue, which may resolve the dispute or alter the context of the court’s ruling.

* It is said that a judiciary’s independence and impartiality are essential for judicial review because they allow courts to act as a neutral check on the government. What safeguards exist to protect this independence?
The only unwritten safeguard is that the Executive would not interfere with the powers of the Judiciary; if it does, it might pay a heavy political price.
Safeguards for judicial independence include legal and structural guarantees, such as secure tenure and appointment processes based on merit and integrity, independent judicial councils, and adequate judicial funding to prevent financial dependency on the executive. Other safeguards involve protections against improper influence, ensuring judges are free from personal, economic, or political pressure, and mechanisms for accountability and discipline that do not undermine impartiality.
* But is it possible that the judiciary can also be biased? And if so, how can this be remedied?
A judge must act without fear or favour, a principle that requires them to set aside all personal biases and prejudices. While a judge is human and may hold personal beliefs, these should not and must not influence their decisions. It is essential that a judge not only acts objectively and independently but is also seen to do so.

* Do you see any trends in recent judicial review cases that suggest a changing relationship between the judiciary and the executive? Are courts becoming more or less willing to intervene in government decisions?
No. Courts can also show reluctance to interfere in government decisions, a stance often referred to as judicial deference or restraint. This may arise from respect for the separation of powers, limited expertise in policy matters, or a belief that the government’s actions were reasonable. While courts are meant to hold governments accountable, they may choose to defer to the government’s judgment where it has greater expertise or authority, provided decisions do not clearly violate fundamental rights.

* Is there a risk that an overactive judiciary, by frequently nullifying government decisions, could be seen as undemocratic or as “legislating from the bench”? How do you respond to that criticism?
The danger of judges legislating under the guise of interpretation is that it undermines the separation of powers, shifting law-making from elected representatives to unelected judges, and potentially leading to arbitrary decisions based on personal preferences rather than established legal principles. This erodes democratic legitimacy by removing the check of public accountability from the legislative process, making it harder for citizens to challenge or influence policies they disagree with.

Mauritius Times ePaper Friday 12 September 2025