Legislative vs Executive |18 September 2019
‘Supreme Court cannot conduct judicial review of legislative body,’ says Constitutional Court
The Constitutional Court yesterday determined that the Supreme Court will not be able to undertake a judicial review of the National Assembly’s action to annul the Statutory Instrument (SI) 18 of 2019 in April.
The SI would have guaranteed a five percent increase to public servants in accordance with the Public Service Salary Act.
This determination was made in relations to a constitutional petition, recorded as CP10, which was referred to the Constitutional Court by the Supreme Court in order to establish whether it could carry out a judicial review of the legislative body.
In a unanimous decision, Judges Ronny Govinden, Gustave Dodin and Laura Pillay affirmed that although a Supreme Court judge sitting alone can – in certain conditions – conduct a judicial review of the legislative body, the annulment of S1 18 of 2019 is not one of those occasions.
The Supreme Court is the only court with the competence to conduct a judicial review.
The Constitutional Court found that a determination of the constitutionality of an annulment requires a constitutional analysis that falls outside of the jurisdiction of the Supreme Court, and can only be heard by the Constitutional Court.
Considered as a win for the National Assembly, which was represented by Speaker Nicholas Prea, the court established that the National Assembly was acting in conformance with its legislative powers when annulling the SI.
Judge Govinden stressed that members of the National Assembly are afforded various liberties particularly under Article 102 (1) of the Constitution, which safeguards their freedom of speech and debate in the National Assembly.
Yet, Judge Govinden cautioned that the National Assembly should enjoy these liberties and conduct its functions within the “four corners of the Constitution”.
The executive branch also had a victory of its own yesterday when the same court dismissed all preliminary objections against the constitutional petition brought by President Faure in his capacity as the minister for public administration.
Again this decision had been unanimous.
The petition brought by President Faure was requesting the Constitutional Court to rule on whether the National Assembly interfered with his Constitutional rights when it annulled the SI.
Legal counsel for Speaker Prea had argued that the petition has been wrongly suited and the case should not have been brought against Mr Prea in capacity as the Speaker; that the petitioner (President Faure) had abused judicial process; that the petitioner’s affidavit was incompetent and deficient.
None of these objections were upheld by the court.
President Faure was represented by lawyer Alexandra Madeleine and Speaker Prea by Joel Camille and Clifford Andre.
The court will meet again to hear only the constitutional petition CP8 brought by Mr Faure wherein Mr Camille will contest the dismissal of his objections.