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You are hereThe Constitution


CHAPTER I – THE STATE AND THE CONSTITUTION

  1. The State

Mauritius shall be a sovereign democratic State which shall be known as the Republic of Mauritius.

[Amended 48/91]

  1. Constitution is supreme law

This Constitution is the supreme law of Mauritius and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.

CHAPTER II – PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL

  1. Fundamental rights and freedoms of the individual

It is hereby recognised and declared that in Mauritius there have existed and shall continue to exist without discrimination by reason of race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms –

  1. the right of the individual to life, liberty, security of the person and the protection of the law;

  2. freedom of conscience, of expression, of assembly and association and freedom to establish schools; and

  3. the right of the individual to protection for the privacy of his home and other property and from deprivation of property without compensation,

and the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of those rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.

  1. Protection of right to life

  1. No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence of which he has been convicted.

  2. A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable –

  1. for the defence of any person from violence or for the defence of property;

  2. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

  3. for the purpose of suppressing a riot, insurrection or mutiny; or

  4. in order to prevent the commission by that person of a criminal offence, or if he dies as the result of a lawful act of war.

  1. Protection of right to personal liberty

(1) No person shall be deprived of his personal liberty save as may be authorised by law –

  1. in consequence of his unfitness to plead to a criminal charge or in execution of the sentence or order of a court, whether in Mauritius or elsewhere, in respect of a criminal offence of which he has been convicted;

  2. in execution of the order of a court punishing him for contempt of that court or of another court;

  3. in execution of the order of a court made to secure the fulfilment of any obligation imposed on him by law;

  4. for the purpose of bringing him before a court in execution of the order of a court;

  5. upon reasonable suspicion of his having committed, or being about to commit, a criminal offence;

  6. in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare;

  7. for the purpose of preventing the spread of an infectious or contagious disease;

  8. in the case of a person who is, or is reasonably suspected to be, of unsound mind or addicted to drugs or alcohol, for the purpose of his care or treatment or the protection of the community;

  9. for the purpose of preventing the unlawful entry of that person into Mauritius, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Mauritius or the taking of proceedings relating thereto;

  10. upon reasonable suspicion of his being likely to commit breaches of the peace; or

  11. in execution of the order of the Commissioner of Police, upon reasonable suspicion of his having engaged in, or being about to engage in, activities likely to cause a serious threat to public safety or public order.

(2)   Any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he understands, of the reasons for his arrest or detention.

(3)   Any person who is arrested or detained –

  1. for the purpose of bringing him before a court in execution of the order of a court;

  2. upon reasonable suspicion of his having committed, or being about to commit a criminal offence; or

  3. upon reasonable suspicion of his being likely to commit breaches of the peace,

and who is not released, shall be afforded reasonable facilities to consult a legal representative of his own choice and shall be brought without undue delay before a court; and if any person arrested or detained as mentioned in paragraph (b) is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including, in particular, such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial; and if any person arrested or detained as mentioned in paragraph (c) is not brought before a court within a reasonable time in order that the court may decide whether to order him to give security for his good behaviour, then, without prejudice to any further proceedings that may be brought against him, he shall be released unconditionally.

(3A) (a) Notwithstanding subsection (3), where a person is arrested or detained for an offence related to terrorism or a drug offence, he shall not, in relation to such offences related to terrorism or drug offences as may be prescribed by an Act of Parliament, be admitted to bail until the final determination of the proceedings brought against him, where –

(i) he has already been convicted of an offence related to terrorism or a drug offence; or

(ii) he is arrested or detained for an offence related to terrorism or a drug offence during the period that he has been released on bail after he has been charged with having committed an offence related to terrorism or a drug offence.

(b) A Bill for an Act of Parliament to prescribe offences related to terrorism or drug offences under paragraph (a) or to amend or repeal such an Act shall not be passed by the Assembly unless it is supported at the final voting in the Assembly by the votes of not less than three quarters of all the members of the Assembly.

(4) Where a person is detained in pursuance of any such provision of law as is referred to in subsection (1)(k) –

(a) he shall, as soon as is reasonably practicable and, in any case not more than 7 days after the commencement of his detention, be furnished with a statement in writing in a language that he understands specifying in detail the grounds upon which he is detained;

(b) not more than 7 days after the commencement of his detention, a notification shall be published in the Gazette stating that he has been detained and giving particulars of the provision of law under which his detention is authorised;

(c) not more than 14 days after the commencement of his detention and thereafter during his detention at intervals of not more than 30 days, his case shall be reviewed by an independent and impartial tribunal consisting of a chairman and 2 other members appointed by the Judicial and Legal Service Commission, the chairman being appointed from among persons who are entitled to practise as a barrister or as an attorney in Mauritius;

(d) he shall be afforded reasonable facilities to consult a legal representative of his own choice who shall be permitted to make representations to the tribunal appointed for the review of his case;

(e) at the hearing of his case by the tribunal, he shall be permitted to appear in person or by a legal representative of his own choice and, unless the tribunal otherwise directs, the hearing shall be held in public;

(f) at the conclusion of any review by a tribunal in pursuance of this subsection in any case, the tribunal shall announce its decision in public, stating whether or not there is, in its opinion, sufficient cause for the detention, and if, in its opinion, there is not sufficient cause, the detained person shall forthwith be released and if during the period of 6 months from his release he is again detained the tribunal established for the review of his case shall not decide that, in its opinion, there is sufficient cause for the further detention unless it is satisfied that new and reasonable grounds for the detention exist.

(5) Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation from that other person.

(6) In the exercise of any functions conferred upon him for the purposes of subsection (1)(k), the Commissioner of Police shall not be subject to the direction or control of any other person or authority.

(7) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (3) to the extent that the law in question authorises a police officer not below the rank of superintendent of police to direct that any person arrested upon reasonable suspicion of having committed any offence related to terrorism or any drug dealing offence be detained in police custody for a period not exceeding 36 hours from his arrest without having access to any person other than a police officer not below the rank of Inspector or a Government Medical Officer.

(8) A Bill for an Act of Parliament to amend or to repeal the provisions of any law with regard to the keeping of a custody record and video recording in respect of the detention of any person for a drug offence shall not be passed by the Assembly unless it is supported at the final voting in the Assembly by the votes of not less than three quarters of all the members of the Assembly.

[Amended 26/94; 40/00]

  1. Protection from slavery and forced labour

(1)   No person shall be held in slavery or servitude.

(2)   No person shall be required to perform forced labour.

(3)   For the purposes of this section, the expression 'forced labour' does not include –

(a) any labour required in consequence of the sentence or order of a court;

(b) labour required of any person while he is lawfully detained that, though not required in consequence of the sentence or order of a court, is reasonably necessary in the interests of hygiene or for the maintenance of the place at which he is detained;

(c) any labour required of a member of a disciplined force in pursuance of his duties as such or, in the case of a person who has conscientious objections to service as a member of a naval, military or air force, any labour that person is required by law to perform in place of such service; or

(d) any labour required during a period of public emergency or in the event of any other emergency or calamity that threatens the life or well-being of the community, to the extent that the requiring of such labour is reasonably justifiable, in the circumstances of any situation arising or existing during that period or as a result of that other emergency or calamity, for the purpose of dealing with that situation.

  1. Protection from inhuman treatment

(1)   No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.

(2)   Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the infliction of any description of punishment that was lawful in Mauritius on 11 March 1964.

  1. Protection from deprivation of property

(1)   No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where –

(a) the taking of possession or acquisition is necessary or expedient in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development or utilisation of any property in such a manner as to promote the public benefit or the social and economic well-being of the people of Mauritius; and

(b) there is reasonable justification for the causing of any hardship that may result to any person having an interest in or right over the property; and

(c) provision is made by a law applicable to that taking of possession or acquisition –

(i) for the payment of adequate compensation; and

(ii) securing for any person having an interest in or right over the property a right of access to the Supreme Court, whether direct or on appeal from any other authority, for the determination of his interest or right, the legality of the taking of possession or acquisition of the property, interest or right, and the amount of any compensation to which he is entitled, and for the purpose of obtaining payment of that compensation.

(2)   No person who is entitled to compensation under this section, other than a resident of Mauritius, shall be prevented from remitting, within a reasonable time after he has received any amount of that compensation, the whole of that amount (free from any deduction, charge or tax made or levied in respect of its remission) to any country of his choice outside Mauritius.

(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (2) to the extent that the law in question authorises –

(a) the attachment, by order of a court, of any amount of compensation to which a person is entitled in satisfaction of the judgment of a court or pending the determination of civil proceedings to which he is a party;

(b) the imposition of reasonable restrictions on the manner in which any amount of compensation is to be remitted; or

(c) the imposition of any deduction, charge or tax that is made or levied generally in respect of the remission of money from Mauritius and that is not discriminatory within the meaning of section 16(3).

(4) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) –

(a) to the extent that the law in question makes provision for the taking of possession or acquisition of property –

(i) in satisfaction of any tax, rate or due;

(ii) by way of penalty for breach of the law or forfeiture in consequence of a breach of the law or in consequence of the inability of a drug-trafficker or a person who has enriched himself by fraudulent and/or corrupt means to show that he has acquired the property by lawful means;

(iii) as an incident of a lease, tenancy, mortgage, charge, sale, pledge or contract;

(iv) in the execution of judgments or orders of courts;

(v) by reason of its being in a dangerous state or injurious to the health of human beings, animals, trees or plants;

(vi) in consequence of any law with respect to the limitations of actions or acquisitive prescription;

(vii) for so long only as may be necessary for the purposes of any examination, investigation, trial or inquiry or, in the case of land, the carrying out on it –

(A) of work of soil conservation or the conservation of other natural resources; or

(B) of agricultural development or improvement that the owner or occupier of the land has been required, and has, without reasonable and lawful excuse, refused or failed to carry out,

except so far as that provision or, as the case may be, the thing done under its authority is shown not to be reasonably justifiable in a democratic society; or

(b) to the extent that the law in question makes provision for the taking of possession or acquisition of –

(i) enemy property;

(ii) property of a person who has died or is unable, by reason of legal incapacity, to administer it himself, for the purpose of its administration for the benefit of the persons entitled to the beneficial interest in it;

(iii) property of a person adjudged bankrupt or a body corporate in liquidation, for the purpose of its administration for the benefit of the creditors of the bankrupt or body corporate and, subject thereto, for the benefit of other persons entitled to the beneficial interest in the property; or

(iv) property subject to a trust, for the purpose of vesting the property in persons appointed as trustees under the instrument creating the trust or by a court or, by order of a court, for the purpose of giving effect to the trust; or

(c) to the extent that the law in question –

(i) makes provision for the payment of the amount for which the property is to be compulsorily taken possession of, together with interest at the legal rate in equal yearly instalments, within a period not exceeding 10 years;

(ii) fixes the amount for which the property is to be compulsorily taken possession of or acquired or makes provision for the determination of that amount in accordance with such principles as may be prescribed.

(4A) (a)  Notwithstanding subsection (1)(c), section 17 or any other provision of the Constitution, no law relating to the compulsory acquisition or taking of possession of any property shall be called in question in any court if it has been supported at the final voting in the Assembly by the votes of not less than three quarters of all the members of the Assembly.

(b) No law under paragraph (a) shall be amended or repealed otherwise than by a Bill which has been supported at the final voting in the Assembly by the votes of not less than three quarters of all the members of the Assembly.

(5) Nothing in this section shall affect the making or operation of any law so far as it provides for the vesting in the State of the ownership of underground water or unextracted minerals.

(6) Nothing in this section shall affect the making or operation of any law for the compulsory taking of possession in the public interest of any property, or the compulsory acquisition in the public interest of any property, or the compulsory acquisition in the public interest of any interest in or right over property, where that property, interest or right is held by a body corporate established by law for public purposes, in which no money has been invested other than money provided from public funds.

[Amended 14/83; 33/86; 48/91]

  1. Protection for privacy of home and other property

(1) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –

(a) in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development or utilisation of mineral resources or the development or utilisation of any other property in such a manner as to promote the public benefit;

(b) for the purpose of protecting the rights or freedoms of other persons;

(c) to enable an officer or agent of the Government or a local authority, or a body corporate established by law for a public purpose, to enter on the premises of any person in order to value those premises for the purpose of any tax, rate or due, or in order to carry out work connected with any property that is lawfully on those premises and that belongs to the Government, the local authority or that body corporate, as the case may be; or

(d) to authorise, for the purpose of enforcing the judgment or order of a court in any civil proceedings, the search of any person or property by order of a court or the entry upon any premises by such order,

except so far as that provision or, as the case may be, the thing done under its authority is shown not to be reasonably justifiable in a democratic society.

  1. Provisions to secure protection of law

(1) Where any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

(2) Every person who is charged with a criminal offence –

(a) shall be presumed to be innocent until he is proved or has pleaded guilty;

(b) shall be informed as soon as reasonably practicable, in a language that he understands and, in detail, of the nature of the offence;

(c) shall be given adequate time and facilities for the preparation of his defence;

(d) shall be permitted to defend himself in person or, at his own expense, by a legal representative of his own choice or, where so prescribed, by a legal representative provided at the public expense;

(e) shall be afforded facilities to examine, in person or by his legal representative, the witnesses called by the prosecution before any court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before that court on the same conditions as those applying to witnesses called by the prosecution; and

(f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence,

and, except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence.

(3) Where a person is tried for any criminal offence, the accused person or any person authorised by him in that behalf shall, if he so requires and subject to payment of such reasonable fee as may be specified by or under any law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.

(4)  No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.

(5)   No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial of that offence, except upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.

(6)   No person shall be tried for a criminal offence if he shows that he has been granted a pardon, by competent authority, for that offence.

(7)   No person who is tried for a criminal offence shall be compelled to give evidence at the trial.

(8)   Any court or other authority required or empowered by law to determine the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial, and where proceedings for such a determination are instituted by any person before such a court or other authority, the case shall be given a fair hearing within a reasonable time.

(9) Except with the agreement of all the parties, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public.

(10) Nothing in subsection (9) shall prevent the court or other authority from excluding from the proceedings (except the announcement of the decision of the court or other authority) persons other than the parties and their legal representatives, to such extent as the court or other authority –

(a) may by law be empowered so to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice, or in interlocutory proceedings, or in the interests of public morality, the welfare of persons under the age of 18 years or the protection of the privacy of persons concerned in the proceedings; or

(b) may by law be empowered or required to do so in the interests of defence, public safety or public order.

(11) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of –

(a) subsection (2)(a), to the extent that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts;

(aa) subsection (2)(d), to the extent that the law in question authorises a police officer to direct that any person arrested upon reasonable suspicion of having committed any offence related to terrorism or any drug dealing offence be detained in police custody for a period not exceeding 36 hours from his arrest without having access to any person other than a police officer not below the rank of Inspector or a Government Medical Officer.

(b) subsection (2)(e), to the extent that the law in question imposes conditions that must be satisfied if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds;

(c) subsection (5), to the extent that the law in question authorises a court to try a member of a disciplined force for a criminal offence, notwithstanding any trial and conviction or acquittal of that member under the disciplinary law of that force, so, however, that any court so trying such a member and convicting him shall, in sentencing him to any punishment, take into account any punishment awarded him under that disciplinary law.

(12) In this section 'criminal offence' means a crime, misdemeanour or contravention punishable under the law of Mauritius.

[Amended 40/00]

  1. Protection of freedom of conscience

(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this section, that freedom includes freedom of thought and of religion, freedom to change his religion or belief, and freedom, either alone or in community with others and both in public and in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.

(2) Except with his own consent (or, if he is a minor, the consent of his guardian), no person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if that instruction, ceremony or observance relates to a religion that he does not profess.

(3) No religious community or denomination shall be prevented from making provision for the giving, by persons lawfully in Mauritius, of religious instruction to persons of that community or denomination in the course of any education provided by that community or denomination.

(4) No person shall be compelled to take any oath that is contrary to his religion or belief or to take any oath in a manner that is contrary to his religion or belief.

(5) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –

(a) in the interests of defence, public safety, public order, public morality or public health; or

(b) for the purpose of protecting the rights and freedoms of other persons, including the right to observe and practise any religion or belief without the unsolicited intervention of persons professing any other religion or belief,

except so far as that provision or, as the case may be, the thing done under its authority is shown not to be reasonably justifiable in a democratic society.

  1. Protection of freedom of expression

(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –

(a) in the interests of defence, public safety, public order, public morality or public health;

(b) for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting, television, public exhibitions or public entertainments; or

(c) for the imposition of restrictions upon public officers, 

except so far as that provision or, as the case may be, the thing done under its authority is shown not to be reasonably justifiable in a democratic society.

  1. Protection of freedom of assembly and association

(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and, in particular, to form or belong to trade unions or other associations for the protection of his interests.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –

(a) in the interests of defence, public safety, public order, public morality or public health;

(b) for the purpose of protecting the rights or freedoms of other persons; or

(c) for the imposition of restrictions upon public officers,

except so far as that provision or, as the case may be, the thing done under its authority is shown not to be reasonably justifiable in a democratic society.

  1. Protection of freedom to establish schools

(1) No religious denomination and no religious, social, ethnic or cultural association or group shall be prevented from establishing and maintaining schools at its own expense.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) to the extent that the law in question makes provision –

(a) in the interests of defence, public safety, public order, public morality or public health; or

(b) for regulating such schools in the interests of persons receiving instruction in them,

except so far as that provision or, as the case may be, the thing done under its authority is shown not to be reasonably justifiable in a democratic society.

(3) No person shall be prevented from sending to any such school a child of whom that person is parent or guardian by reason only that the school is not a school established or maintained by the Government.

(4) In subsection (3), 'child' includes a stepchild and a child adopted in a manner recognised by law, and 'parent' shall be construed accordingly.

  1. Protection of freedom of movement

(1)   No person shall be deprived of his freedom of movement, and for the purposes of this section, that freedom means the right to move freely throughout Mauritius, the right to reside in any part of Mauritius, the right to enter Mauritius, the right to leave Mauritius and immunity from expulsion from Mauritius.

(2)   Any restriction on a person´s freedom of movement that is involved in his lawful detention shall not be held to be inconsistent with or in contravention of this section.

(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –

(a) for the imposition of restrictions on the movement or residence within Mauritius of any person in the interests of defence, public safety, public order, public morality or public health;

(b) for the imposition of restrictions on the right of any person to leave Mauritius in the interests of defence, public safety, public order, public morality or public health or of securing compliance with any international obligation of the Government, particulars of which have been laid before the Assembly;

(c) for the imposition of restrictions, by order of a court, on the movement or residence within Mauritius of any person either in consequence of his having been found guilty of a criminal offence under the law of Mauritius or for the purpose of ensuring that he appears before a court at a later date for trial in respect of such a criminal offence or for proceedings preliminary to trial or for proceedings relating to his extradition or other lawful removal from Mauritius;

(d) for the imposition of restrictions on the movement or residence within Mauritius of any person who is not a citizen of Mauritius or the exclusion or expulsion from Mauritius of any such person;

(e) for the imposition of restrictions on the acquisition or use by any person of land or other property in Mauritius;

(f) for the removal of a person from Mauritius to be tried outside Mauritius for a criminal offence or to undergo imprisonment outside Mauritius in execution of the sentence of a court in respect of a criminal offence of which he has been convicted; or

(g) for the imposition of restrictions on the right of any person to leave Mauritius in order to secure the fulfilment of any obligations imposed upon that person by law,

except so far as that provision or, as the case may be, the thing done under its authority is shown not to be reasonably justifiable in a democratic society.

(4)  Where any person whose freedom of movement has been restricted in pursuance of subsection (3)(a) or (b) so requests –

(a) he shall, as soon as is reasonably practicable and in any case not more than 7 days after the making of the request, be furnished with a statement in writing in a language that he understands, specifying the grounds for the imposition of the restriction;

(b) not more than 14 days after the making of the request, and thereafter during the continuance of the restriction at intervals of not more than 6 months, his case shall be reviewed by an independent and impartial tribunal consisting of a chairman and 2 other members appointed by the Judicial and Legal Service Commission, the chairman being appointed from among persons who are entitled to practise as a barrister or as an attorney in Mauritius;

(c) he or a legal representative of his own choice shall be permitted to make representations to the tribunal appointed for the review of his case;

(d) on any review by a tribunal in pursuance of this subsection in any case, the tribunal may make recommendations concerning the necessity or expendiency of continuing the restriction in question to the authority by which it was ordered and that authority shall act in accordance with any recommendation for the removal or relaxation of the restriction:

Provided that a person whose freedom of movement has been restricted by virtue of a restriction that is applicable to persons generally or to general classes of persons shall not make a request under this subsection unless he has first obtained the consent of the Supreme Court.

  1. Protection from discrimination

(1) Subject to subsections (4), (5) and (7), no law shall make any provision that is discriminatory either of itself or in its effect.

(2) Subject to subsections (6), (7) and (8), no person shall be treated in a discriminatory manner by any person acting in the performance of any public function conferred by any law or otherwise in the performance of the functions of any public office or any public authority.

(3) In this section, 'discriminatory' means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, caste, place of origin, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages that are not accorded to persons of another such description.

(4) Subsection (1) shall not apply to any law so far as that law makes provision –

(a) for the appropriation of revenues or other funds of Mauritius;

(b) with respect to persons who are not citizens of Mauritius; or

(c) for the application, in the case of persons of any such description as is mentioned in subsection (3) (or of persons connected with such persons), of the law with respect to adoption, marriage, divorce, burial, devolution of property on death or other like matters that is the personal law applicable to persons of that description.

(5) Nothing contained in any law shall be held to be inconsistent with or in contravention of subsection (1) to the extent that it makes provision with respect to standards or qualifications (not being standards or qualifications specifically relating to race, caste, place of origin, political opinions, colour, creed or sex) to be required of any person who is appointed to any office in the public service, any office in a disciplined force, any office in the service of a local authority or any office in a body corporate established directly by any law for public purposes.

(6) Subsection (2) shall not apply to anything which is expressly or by necessary implication authorised to be done by any such provision of law as is referred to in subsection (4) or (5).

(7) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision whereby persons of any such description as is mentioned in subsection (3) may be subjected to any restriction on the rights and freedoms guaranteed by sections 9, 11, 12, 13, 14 and 15, being such a restriction as is authorised by section 9(2), 11(5), 12(2), 13(2), 14(2) or 15(3), as the case may be.

(8) Subsection (2) shall not affect any discretion relating to the institution, conduct or discontinuance of civil or criminal proceedings in any court that is vested in any person by or under this Constitution or any other law.

[Amended 23/95]

  1. Enforcement of protective provisions

(1) Where any person alleges that any of sections 3 to 16 has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter that is lawfully available, that person may apply to the Supreme Court for redress.

(2) The Supreme Court shall have original jurisdiction to hear and determine any application made by any person in pursuance of subsection (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of sections 3 to 16 to the protection of which the person concerned is entitled:

Provided that the Supreme Court shall not exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.

(3) The Supreme Court shall have such powers in addition to those conferred by this section as may be prescribed for the purpose of enabling that court to exercise the jurisdiction conferred upon it by this section more effectively.

(4)   The Chief Justice may make rules with respect to the practice and procedure of the Supreme Court in relation to the jurisdiction and powers conferred upon it by or under this section (including rules with respect to the time within which applications to that court may be made).

17A.     Payment of retiring allowances to Members

(1) Nothing contained in and nothing done under the authority of a law shall be held to be inconsistent with or in contravention of any provision of this Constitution –

(a) to the extent that the law in question makes provision for reducing, limiting, modifying, or withholding the payment of any retiring allowances to any serving or former Member of the National Assembly; and

(b) to the extent that the law in question makes provision for its coming into operation with retrospective effect.

(2) References in this section to the law relating to the payment of retiring allowances include (without prejudice to their generality) references to the law regulating the circumstances in which such retiring allowances may be paid or in which the grant of such retiring allowances may be refused, the law regulating the circumstances in which any such retiring allowances that have been granted may be reduced in amount, limited, modified or withheld and the law regulating the amount of any such retiring allowances.

[Added 4/96]

  1. Derogations from fundamental rights and freedoms under emergency powers

(1)Nothing contained in or done under the authority of a law shall be held to be inconsistent with or in contravention of section 5 or section 16 to the extent that the law authorises the taking during any period of public emergency of measures that are reasonably justifiable for dealing with the situation that exists in Mauritius during that period:

Provided that no law, to the extent that it authorises the taking during a period of public emergency, other than a period during which Mauritius is at war, of measures that would be inconsistent with or in contravention of section 5 or section 16 if taken otherwise than during a period of public emergency, shall have effect unless there is in force a Proclamation of the President declaring that, because of the situation existing at the time, the measures authorised by the law are required in the interests of peace, order and good government.

(2)   A Proclamation made by the President for the purposes of this section –

(a) shall, when the Assembly is sitting or when arrangements have already been made for it to meet within 7 days of the date of the Proclamation, lapse unless within 7 days the Assembly by resolution approves the Proclamation;

(b) shall, when the Assembly is not sitting and no arrangements have been made for it to meet within 7 days, lapse unless within 21 days it meets and approves the Proclamation by resolution;

(c) shall, if approved by resolution, remain in force for such period, not exceeding 6 months, as the Assembly may specify in the resolution;

(d) may be extended in operation for further periods not exceeding 6 months at a time by resolution of the Assembly;

(e) may be revoked at any time by the President, or by resolution of the Assembly:

Provided that no resolution for the purposes of paragraph (a), (b), (c) or (d) shall be passed unless it is supported by the votes of at least two-thirds of all the members of the Assembly.

(3) Where a person is detained by virtue of any such law as is referred to in subsection (1) (not being a person who is detained because he is a person who, not being a citizen of Mauritius, is a citizen of a country with which Mauritius is at war, or has been engaged in hostilities against Mauritius in association with or on behalf of such a country or otherwise assisting or adhering to such a country) –

(a) he shall, as soon as is reasonably practicable and in any case not more than 7 days after the commencement of his detention, be furnished with a statement in writing in a language that he understands, specifying in detail the grounds upon which he is detained;

(b) not more than 14 days after the commencement of his detention, a notification shall be published in the Gazette stating that he has been detained and giving particulars of the provision of law under which his detention is authorised;

(c) not more than one month after the commencement of his detention and thereafter during his detention at intervals of not more than 6 months, his case shall be reviewed by an independent and impartial tribunal consisting of a chairman and 2 other members appointed by the Judicial and Legal Service Commission, the chairman being appointed from among persons who are entitled to practise as a barrister or as an attorney in Mauritius;

(d) he shall be afforded reasonable facilities to consult a legal representative of his own choice who shall be permitted to make representations to the tribunal appointed for the review of the case of the detained person; and

(e) at the hearing of his case by the tribunal appointed for the review of his case, he shall be permitted to appear in person or by a legal representative of his own choice.

(4)   On any review by a tribunal in pursuance of this section of the case of a detained person, the tribunal may make recommendations concerning the necessity or expediency of continuing his detention to the authority by which it was ordered but, unless it is otherwise provided by law, that authority shall not be obliged to act in accordance with any such recommendations.

[Amended 48/91]

  1. Interpretation and savings

(1)   In this Chapter –

'contravention', in relation to any requirement, includes a failure to comply with that requirement, and cognate expressions shall be construed accordingly;

'court', means any court of law having jurisdiction in Mauritius, including the Judicial Committee, but excepting, save in sections 4 and 6 and this section, a court established by a disciplinary law;

'legal representative', means a person lawfully in or entitled to be in Mauritius and entitled to practise in Mauritius as a barrister or, except in relation to proceedings before a court in which an attorney has no right of audience, as an attorney;

'member', in relation to a disciplined force, includes any person who, under the law regulating the discipline of that force, is subject to that discipline.

(2) Nothing contained in section 5(4), 15(4) or 18(3) shall be construed as entitling a person to legal representation at public expense.

(3)   Nothing contained in section 12, 13 or 15 shall be construed as precluding the inclusion in the terms and conditions of service of public officers of reasonable requirements as to their communication or association with other persons or as to their movements or residence.

(4)   In relation to any person who is a member of a disciplined force of Mauritius, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter, other than sections 4, 6 and 7.

(5)   In relation to any person who is a member of a disciplined force that is not a disciplined force of Mauritius and who is present in Mauritius in pursuance of arrangements made between the Government of Mauritius and another government or an international organisation, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of this Chapter.

(6)   No measures taken in relation to a person who is a member of a disciplined force of a country with which Mauritius is at war and no law, to the extent that it authorises the taking of any such measures, shall be held to be inconsistent with or in contravention of this Chapter.

(7)   In this Chapter 'period of public emergency' means any period during which –

(a) Mauritius is engaged in any war;

(b) there is in force a Proclamation by the President declaring that a state of public emergency exists; or

(c) there is in force a resolution of the Assembly supported by the votes of a majority of all the members of the Assembly declaring that democratic institutions in Mauritius are threatened by subversion.

(8)   A Proclamation made by the President for the purposes of subsection (7) –

(a) shall, when the Assembly is sitting or when arrangements have already been made for it to meet within 7 days of the date of the Proclamation, lapse unless within 7 days the Assembly by resolution approves the Proclamation;

(b) shall, when the Assembly is not sitting and no arrangements have been made for it to meet within 7 days, lapse unless within 21 days it meets and approves the Proclamation by resolution;

(c) may be revoked at any time by the President, or by resolution of the Assembly:

Provided that no resolution for the purposes of paragraph (a) or (b) shall be passed unless it is supported by the votes of a majority of all members of the Assembly.

(9)   A resolution passed by the Assembly for the purposes of subsection (7)(c) –

(a) shall remain in force for such period, not exceeding 12 months, as the Assembly may specify in the resolution;

(b) may be extended in operation for further periods, not exceeding 12 months at a time by a further resolution supported by the votes of a majority of all the members of the Assembly;

(c) may be revoked at any time by resolution of the Assembly.

[Amended 48/91]

CHAPTER III – CITIZENSHIP

  1. Persons who became citizens on 12 March 1968

(1) Every person who, having been born in Mauritius, was on 11 March 1968 a citizen of the United Kingdom and Colonies became a citizen of Mauritius on 12 March 1968.

(2) Every person who, on 11 March 1968, was a citizen of the United Kingdom and Colonies –

(a) having become such a citizen under the British Nationality Act 1948,1 by virtue of his having been naturalised by the Governor of the former Colony of Mauritius as a British subject before that Act came into force; or

(b) having become such a citizen by virtue of his having been naturalised or registered by the Governor of the former Colony of Mauritius under that Act, became a citizen of Mauritius on 12 March 1968.

(3) Every person who, having been born outside Mauritius, was on 11 March 1968 a citizen of the United Kingdom and Colonies, if either of his parents became, or would but for his death have become, a citizen of Mauritius by virtue of subsection (1) or subsection (2), became a citizen of Mauritius on 12 March 1968.

(4)  For the purposes of this section, a person shall be regarded as having been born in Mauritius if he was born in the territories which were comprised in the former Colony of Mauritius immediately before 8 November 1965 but were not so comprised immediately before 12 March 1968 unless either of his parents was born in the territories which were comprised in the Colony of Seychelles immediately before 8 November 1965.

[Amended 23/95]

  1. Persons entitled to be registered as citizens

(1)   Any person who, on 12 March 1968, was or had been married to another person –

(a) who became a citizen of Mauritius by virtue of section 20; or

(b) who, having died before 12 March 1968 would, but for his death, have become a citizen of Mauritius by virtue of section 20,

shall be entitled, upon making application and, if he is a British protected person or an alien, upon taking the oath of allegiance, to be registered as a citizen of Mauritius:

Provided that, in the case of any person who, on 12 March 1968 was not a citizen of the United Kingdom and Colonies, the right to be registered as a citizen of Mauritius under this section shall be subject to such exceptions or qualifications as may be prescribed in the interest of national security or public policy.

____________________

1     1948 c 56 (UK).

(2) Any application for registration under this section shall be made in such manner as may be prescribed as respects that application.

[Amended 23/95]

  1. Persons born in Mauritius after 11 March 1968

Every person born in Mauritius after 11 March 1968 shall become a citizen of Mauritius at the date of his birth:

Provided that a person shall not become a citizen of Mauritius by virtue of this section if at the time of his birth –

(a) neither of his parents is a citizen of Mauritius; or

(b) either of his parents is an enemy alien and the birth occurs in a place then under occupation by the enemy.

[Amended 23/95]

  1. Persons born outside Mauritius after 11 March 1968

A person born outside Mauritius after 11 March 1968 shall become a citizen of Mauritius at the date of his birth if at that date either of his parents is a citizen of Mauritius otherwise than by virtue of this section or section 20(3).

[Amended 23/95]

  1. Marriage to a citizen of Mauritius

Any person who, after 11 March 1968, marries another person who is or becomes a citizen of Mauritius shall be entitled, upon making application in such manner as may be prescribed and, if he is a British protected person or an alien, upon taking the oath of allegiance, to be registered as a citizen of Mauritius:

Provided that the right to be registered as a citizen of Mauritius under this section shall be subject to such exceptions or qualifications as may be prescribed in the interests of national security or public policy.

[Amended 23/95]

  1. Commonwealth citizens

(1) Every person who under this Constitution or any other law is a citizen of Mauritius or under any enactment for the time being in force in any country to which this section applies is a citizen of that country shall, by virtue of that citizenship, have the status of a Commonwealth citizen.

(2) Every person who is a British subject without citizenship under the British Nationality Act 19482, or continues to be a British subject under section 2 of that Act or is a British subject under the British Nationality Act 19653 shall, by virtue of that status, have the status of a Commonwealth citizen.

____________________

2           1948 c 56 (UK)

3           1965 c 34 (UK)

(3)  Except as may be otherwise provided by regulations made by the Prime Minister, the countries to which this section applies are Antigua and Barbuda, Australia, Bahamas, Bangladesh, Barbados, Belize, Botswana, Brunei, Canada, Cyprus, Dominica, The Gambia, Ghana, Grenada, Guyana, India, Jamaica, Kenya, Kiribati, Lesotho, Malawi, Malaysia, Maldives, Malta, Namibia, Nauru, New Zealand, Nigeria, Pakistan, Papua New Guinea, St. Christopher-Nevis, St Lucia, St Vincent, Seychelles, Sierra Leone, Singapore, Solomon Islands, Sri Lanka, Swaziland, Tanzania, Tonga, Trinidad and Tobago, Tuvalu, Uganda, United Kingdom and Colonies, Vanuatu, Western Samoa, Zambia and Zimbabwe.

[Amended 48/91]

  1. Powers of Parliament

(1) Parliament may make provision –

(a) for the acquisition of citizenship of Mauritius by persons who are not eligible or who are no longer eligible to become citizens of Mauritius by virtue of this Chapter;

(b) for depriving of his citizenship of Mauritius any person who is a citizen of Mauritius otherwise than by virtue of section 20, 22 or 23;

(c) for the renunciation by any person of his citizenship of Mauritius; or

(d) for the maintenance of a register of citizens of Mauritius who are also citizens of other countries.

[Amended 23/95]

  1. Interpretation

(1)   In this Chapter, 'British protected person' means a person who is a British protected person for the purposes of the British Nationality Act 19484.

(2)   For the purposes of this Chapter, a person born aboard a registered ship or aircraft, or aboard an unregistered ship or aircraft of the government of any country, shall be deemed to have been born in the place in which the ship or aircraft was registered or, as the case may be, in that country.

(3)   Any reference in this Chapter to the national status of the parent of a person at the time of that person´s birth shall, in relation to a person born after the death of his parent, be construed as a reference to the national status of the parent at the time of the parent´s death, and where that death occurred before 12 March 1968 and the birth occurred after 11 March 1968, the national status that the parent would have had if he had died on 12 March 1968 shall be deemed to be his national status at the time of his death.

[Amended 23/95]

____________________

4         1948 c 56 (UK)

CHAPTER IV – THE PRESIDENT AND THE VICE-PRESIDENT OF THE REPUBLIC OF MAURITIUS

  1. The President

(1) There shall be a President who shall be the Head of State and Commander-in-Chief of the Republic of Mauritius.

(2)  (a) The President shall –

(i) be elected by the Assembly on a motion made by the Prime Minister and supported by the votes of a majority of all the members of the Assembly; and

(ii) subject to this section and section 30, hold office for a term of 5 years and shall be eligible for re-election.

     (b) A motion under paragraph (a) shall not be the subject matter of a debate in the Assembly.

(3)   No person shall be eligible for election to the office of President unless he is a citizen of Mauritius who is not less than 40 years of age and has resided in Mauritius for a period of not less than 5 years immediately preceding the election.

(4) Where a person is elected to the office of President, he shall not, whilst in office, –

(a) hold any other office of emolument, whether under the Constitution or otherwise;

(b) exercise any profession or calling or engage in any trade or business.

(5)   The President shall, at the expiry of his term, continue to hold office until another person assumes office as President.

(6)   The office of the President shall become vacant –

(a) subject to subsection (5), at the expiry of his term of office;

(b) where he dies or resigns his office by writing addressed to the Assembly and delivered to the Speaker; or

(c) where he is removed or suspended from office under section 30.

(7) Where the office of President is vacant, or the President is absent from Mauritius or is for any other reason unable to perform the functions of his office, those functions shall be performed –

(a) by the Vice-President; or

(b) where there is no Vice-President –

(i) elected under section 29(2) or (7); and

(ii) able to perform the functions of the office of President, by the Chief Justice.

(8)   The person performing the functions of President under subsection (7) shall cease to perform those functions as soon as –

(a) another person is elected as President or the President resumes his office, as the case may be; or

(b) in the case of the Chief Justice, a Vice-President is elected under section 29(2) or (7) and assumes office or the Vice-President resumes his office, as the case may be.

[Amended 48/91]

  1. The Vice-President

(1) Subject to subsection (7), there shall be a Vice-President of the Republic of Mauritius.

(2)  The Vice-President shall –

(a) be elected in the manner specified in section 28(2)(a)(i) and, subject to this section and section 30, hold office for a term of 5 years and shall be eligible for re-election;

(b) perform such functions as may be assigned to him by the President.

(3)   No person shall be eligible for election to the office of Vice-President unless he satisfies the conditions specified in section 28(3).

(4)  Where a person is elected to the office of Vice-President, he shall not, whilst in office, –

(a) hold any other office of emolument, whether under the Constitution or otherwise;

(b) exercise any profession or calling or engage in any trade or business.

(5)   The Vice-President shall, at the expiry of his term, continue to hold office until another person assumes office as Vice-President.

(6)   The office of the Vice-President shall become vacant –

(a) subject to subsection (5), at the expiry of his term of office;

(b) where he dies or resigns his office by writing addressed to the Assembly and delivered to the Speaker, or

(c) where he is removed or suspended from office under section 30.

(7)   (a) Where the office of Vice-President is vacant, or the Vice-President is absent from Mauritius or is for any other reason unable to perform the functions of his office, those functions may be performed by such person as may be elected by the Assembly in the manner specified in section 28(2)(a)(i).

(b) No person may be elected under paragraph (a) unless he satisfies the conditions specified in section 28(3).

(8)   The person performing the functions of Vice-President under subsection (7) shall cease to perform those functions as soon as another person is elected and assumes office as Vice-President or the Vice-President resumes his office, as the case may be.

[Amended 48/91]

  1. Removal of the President and the Vice-President

(1)   The President or the Vice-President may be removed from office in accordance with this section for –

(a) violation of the Constitution or any other serious act of misconduct;

(b) inability to perform his functions whether arising from infirmity of mind or body or from any other cause.

(2)  Where the President fails to comply with section 46(2), he may be removed from office on a motion made by the Prime Minister in the Assembly and supported by the votes of a majority of all the members of the Assembly.

(3)   The President or the Vice-President shall not be removed from office for any other cause unless –

(a) a motion that the circumstances requiring the removal of the President or the Vice-President be investigated by a tribunal is made in the Assembly by the Prime Minister;

(b) the motion states with full particulars the ground on which the removal of the President or the Vice-President is sought;

(c) the motion is supported by the votes of not less than two-thirds of all the members of the Assembly;

(d) the tribunal, after its investigation, forwards a written report on the investigation addressed to the Assembly and delivered to the Speaker and recommends the removal of the President or the Vice-President; and

(e) subject to paragraph (f), a motion made by the Prime Minister and supported by the votes of a majority of all the members of the Assembly requires the removal of the President or the Vice-President on a recommendation to that effect by the tribunal;

(f) a motion under paragraph (e) is made –

(i) where the Assembly is sitting, within 20 days of the receipt of the report of the tribunal by the Speaker;

(ii) where the Assembly is not sitting, within 20 days of the day on which the Assembly resumes its sitting.

(4)   The President or the Vice-President shall have the right to appear and to be represented before the tribunal during its investigation.

(5)  Where the Assembly supports a motion under subsection (3)(c), it may suspend the President or the Vice-President from performing the functions of his office.

(6)   A suspension under subsection (5) shall cease to have effect where –

(a) a report under subsection (3)(d) does not recommend that the President or the Vice-President ought to be removed from office; or

(b) the Assembly does not support a motion under subsection (3)(e) requiring the removal of the President or the Vice-President.

(7) Where the Assembly supports a motion under subsection (3)(e) requiring the removal of the President or the Vice-President, the office of the President or the Vice-President, as the case may be, shall become vacant.

(8)   In this section, 'tribunal' means a tribunal consisting of a chairman and 2 or 4 other members appointed by the Chief Justice from amongst persons who hold or have held office as a Judge of a court having unlimited jurisdiction in civil or criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from such a court.

[Amended 48/91]

30.A    Privileges and immunities

(1) Subject to section 64(5), no civil or criminal proceedings shall lie against the President or the Vice-President in respect of the performance by him of the functions of his office or in respect of any act done or purported to be done by him in the performance of those functions.

(2) Subject to section 64(5), no process, warrant or summons shall be issued or executed against the President or the Vice-President during his term of office.

(3)   The President or the Vice-President shall be entitled –

(a) without payment of any rent or tax to the use of his official residence; and

(b) to such emoluments, allowances and privileges, exempt from any tax thereon, as may be prescribed.

(4)   No alteration to any of the entitlements specified in subsection (3) which is to the disadvantage of the President or the Vice-President shall have effect without his consent.

[Added 48/91]

30B   Oaths to be taken by the President and the Vice-President

(1)   A person elected to the office of President or Vice-President or who assumes the functions of any of those offices shall, before assuming his functions, take and subscribe the appropriate oath as set out in the Third Schedule.

(2)   An oath under this section shall be administered by the Chief Justice.

[Added 48/91]



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