Section 3: Amendment of section 1 of Constitution – Democracy – Separation of

3. Amendment of section 1 of Constitution – Democracy – Separation of powers—Defendant was charged with possession of heroin for the purpose of selling in breach of the Dangerous Drugs Act 2000 (“DDA”). The police objected to the respondent being released on bail on the ground that, pursuant to section 5 (3A) of the Constitution and section 32 of the DDA, the respondent could not be granted bail pending trial. The matter was referred to the Supreme Court pursuant to section 84 of the Constitution. HELD (Supreme Court) section 5 (3A) of the Constitution, although it was compliant with section 47 (2), was in breach of section 1 of the Constitution, since the imperative prohibition imposed on the judiciary to refuse bail in the circumstances outlined therein amounted to the interference by the legislature into functions which were intrinsically within the domain of the judiciary. Furthermore, section 5 (3A) violated section 7 of the Constitution, in that it removed from the Court its adjudicative role in deciding whether bail was to be granted or not in certain circumstances. Section 32 of the DDA and section 5 (3A) of the Constitution, in so far as regards drug offences, declared void. Police v Khoyratty (2004 MR 137). The State appealed to the Judicial Committee of the Privy Council. HELD (Judicial Committee) the power to determine responsibility for a crime, and punishment for its commission, is a function which belongs exclusively to the Courts. Section 1 of the Constitution is not a mere preamble. It is a constitutional provision which could only be amended in the manner provided by section 47 (3). The right to bail cannot be abolished by an ordinary legislation or by a constitutional provision which does not comply with the requirement of deep entrenchment of section 1. The failure to comply with section 47 (3) rendered section 5 (3A) of the Constitution and section 32 of the Dangerous Drugs Act void. Appeal dismissed. Decision of Supreme Court on section 1 endorsed. State v Khoyratty (2006 MR 210). [Issue 1] CON – 166 Revised Laws of Mauritius PART II – CITIZENSHIP