Time for a new Constitutional Roadmap

As we near the half-century mark of the 1968 Mauritian Constitution, the Republic of Mauritius should seriously reflect on the need for a Presidential Commission to review our Constitution, especially the fundamental rights provided for in Chapter Two.

The background of a Constitution as highlighted in the case of Matadeen v Pointu [1998] UKPC 9, is an attempt at a particular moment in history to lay down an enduring scheme of government in accordance with certain moral and political values. The 1968 Constitution was no exception and, as a supreme law, it was destined to forge a new Mauritius based on a greater degree of unity and tolerance.

At the time of drafting of the 1968 Constitution, there was a debate among its drafters, led by Professor De Smith as to whether social and economic rights similar to what exist today in many Constitutions should be incorporated in the Constitution of an independent Mauritius which advocated for a welfare State. Professor De Smith opted for a more restrictive approach stating that “the least controversial safeguard would probably be a justiciable set of fundamental rights based on the terms of the European Convention on Human Rights and fundamental freedoms. Provision along these lines has already been made in the Constitutions [sic] of Nigeria, Sierra Leone and Kenya.”

Constitutions originally inherited from the British have evolved to recognize new rights and values to adapt to their specific social, economic and cultural contexts. South Africa and Kenya are two prime examples of countries having introduced new Constitutions and incorporated these rights.

Where existing rights do not wholly uphold the spirit of a modern democracy, a review of the Constitution to incorporate new rights including social, economic and cultural ones becomes necessary. One should also not lose sight of the fact that such review will further acknowledge that existing rights have also evolved in scope and interpretation. Today, more and more judges see those rights from new lenses.

It is apposite to cite the recent judgment delivered by the European Court of Human Rights in the case of Buzadji v Republic of Moldova (5th July 2016). More importantly, the Court held that the right to liberty of the citizen cannot be simply taken away merely on reasonable suspicion that he or she has committed an offence. The threshold was considered to be too low and as such it held that courts had to be satisfied that there should be relevant and sufficient reasons for the arrest and detention of a citizen and this at the very time of the arrest, not after a certain lapse of time. Arrests and detentions are still based on grounds of reasonable suspicion in Mauritius as provided in Section 5 of our Constitution. In that sense our Constitution will lag behind with developments in modern democracies.

A Presidential Commission to review our Constitution about half a century after its birth would be a historical step towards our commitment to the rule of law by incorporating values and principles developed by our own Supreme Court and human rights courts around the world.

Satyajit Boolell, SC
The Director of Public Prosecutions