In our democratic system, it is the Supreme Court that has the last word as far as the constitution is concerned; and in good time the Supreme Court was indeed asked for its opinion on this major amendment.

Which begs the question; the people do not elect judges, so why should judges have the last word?

In an enlightening conference held last week on 40 years of constitutional evolution, former chief justice Rajsoomer Lallah gave the answer and recounted how this principle was tested for the first time shortly after independence when the Supreme Court had to give its opinion after Parliament extended its own life by another five years by amending the Constitution.

?I have often been asked this question,? Rajsoomer Lallah, former Chief Justice (CJ), volunteered when he spoke at the conference last week.

?When you have so many conflicting sources of power, you do need to have some institution that declares what is the right way. This is also the reason why judges have security of tenure and why their position has to be respected. Unlike politicians and the private sector, this security of tenure and their long practice of the law gives them, I think, an eminent place in the constitutional scheme to be charged with the responsibility of saying what the constitution is and what the right way is.?

The judges of the freshly independent Mauritius were to be tested very soon after the independence on ?the right way? as they were invited to intervene on this first amendment.

Two sides of a story

They were, admits the former CJ, taken slightly unawares by this. After all, they had no experience on constitutional matters. ?And for the first time, we had to pass judgment on what Parliament had done. The judges had never been faced with this kind of responsibility, in this kind of situation. There was nothing to look back. The lawyers were also faced with this problem seeing that they had never argued constitutional cases before. But I think we did well as was eventually proved,? recounts Rajsoomer Lallah.

The same ?order in council? that gave Mauritius its constitution also gave power to Parliament to change this constitution; and soon after independence, Parliament decided to exercise the powers that the constitution gave it.

In November 1969, Parliament amended the constitution less than two years after its advent by passing two amendments. The first was to extend the life of Parliament until 1976 instead of 1972 but retaining the provision that Parliament could be prorogued before that. ?You can imagine the public controversy that took place in the country as this was perceived as Parliament wanting to tame the constitution?, recalls Rajsoomer Lallah.

Was democracy being flouted? In any case that was the perception. Former CJ Lallah says: ?The street was saying that this was undemocratic and that people were being deprived of their right to elect their representatives in 1972.? And this was at a time when new political figures such as Paul Bérenger and consorts were coming up. In short, the country was in upheaval.

But every story has two sides, Rajsoomer Lallah ? ever the judge ? quickly points out. ?The other side to the story was that 44% of the people voted against independence and very soon afterwards, the country was in the throes of gang warfare and this threatened to engulf the country. The country was in a mess and it was felt that there must be some sense of political stability to take the country forward.?

The case was entered in 1973; four years after the amendments, probably as it would have been premature to enter a case before since the provision for Parliament to end its life prematurely was kept. There was also a second amendment ? to allow the replacement of MPs

by application of the1st schedule of the constitution that deals with allocation of seats, so that vacancies could be filled without going through by-elections. This also raised objections in the mind of the public who worried that by-elections were being abolished.

Other instances elsewhere

The issue before the courts, says Rajsoomer Lallah, was - should judges intervene in matters that had to do with state organization? How you fill vacancies in Parliament was, according to the Judges, something to do with Parliament and did not concern the Courts. In any event, the first schedule already provided for people who are not elected to get into Parliament.

As far as the extension of the life of Parliament was concerned, the Supreme Court also ruled that there have been many instances in the UK and elsewhere when Parliament had chosen to extend its life and that it was entitled to do so because this power was provided for by the constitution.

?The separation of powers is very important in our democracy and it was clear that according to article 47 of the constitution, Parliament can amend the constitution depending on the provisions of either majority by two-thirds of three-quarters,? stresses former CJ Rajsoomer Lallah.

In short, Parliament is given some powers to amend the constitution and as long as it follows the rules, ?who are we to say differently?? asked the former CJ. But, of course, there are instances ?where Parliament wrongly did so?, he adds.

?In some other democracies, you can become president by even the Supreme Court saying votes should not be counted and Mr Al Gore became the past future president,? concluded the cheeky former Chief Justice.