CHAPTER X – FINANCE

103. Consolidated Fund

All revenues or other money raised or received for the purposes of the Government (not being revenues or other money that are payable by or under any law into some other fund established for a specific purpose or that may by or under any law be retained by the authority that received them for the purposes of defraying the expenses of that authority) shall be paid into and form one Consolidated Fund.

104. Withdrawals from Consolidated Fund or other public funds

(1)   No money shall be withdrawn from the Consolidated Fund except –

(a) to meet expenditure that is charged upon the Fund by this Constitution or by any other law in force in Mauritius; or

(b) where the issue of that money has been authorised by an appropriation law or by a supplementary estimate approved by resolution of the Assembly or in such manner, and subject to such conditions, as may be prescribed in pursuance of section 106.

(2)   No money shall be withdrawn from any public fund of Mauritius, other than the Consolidated Fund, unless the issue of that money has been authorised by or under a law.

(3)   No money shall be withdrawn from the Consolidated Fund except in the manner prescribed.

(4)   The deposit of any money forming part of the Consolidated Fund with a bank or with the Crown Agents for Overseas Governments and Administrations or the investment of any such money in such securities as may be prescribed shall not be regarded as a withdrawal of that money from the Fund for the purposes of this section.

[Amended 48/91]

105. Authorisation of expenditure

(1)   The Minister responsible for finance shall cause to be prepared and laid before the Assembly, before or not later than 30 days after the commencement of each financial year, estimates of the revenues and expenditure of Mauritius for that year.

(2)   The heads of expenditure contained in the estimates for a financial year (other than expenditure charged upon the Consolidated Fund by this Constitution or any other law) shall be included in a Bill, to be known as an Appropriation Bill, introduced into the Assembly to provide for the issue from the Consolidated Fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified in the Bill.

(3)  Where in any financial year it is found –

(a) that the amount appropriated by the appropriation law for the purposes included in any head of expenditure is insufficient or that a need has arisen for expenditure for a purpose for which no amount has been appropriated by the appropriation law; or

(b) that any money has been expended on any head of expenditure in excess of the amount appropriated for the purposes included in that head by the appropriation law, or for a purpose for which no amount has been appropriated by the appropriation law,

a supplementary estimate showing the sums required or spent shall be laid before the Assembly and the heads of expenditure shall be included in a supplementary Appropriation Bill introduced in the Assembly to provide for the appropriation of those sums, or in a motion or motions introduced into the Assembly for the approval of such expenditure.

(4)  Where any supplementary expenditure has been approved in a financial year by a resolution of the Assembly in accordance with subsection (3), a supplementary Appropriation Bill shall be introduced in the Assembly, not later than the end of the financial year next following, providing for the appropriation of the sums so approved.

106. Authorisation of expenditure in advance of appropriation

Where the Appropriation law in respect of any financial year has not come into operation by the beginning of that financial year, the Minister responsible for finance may, to such extent and subject to such conditions as may be prescribed, authorise the withdrawal of money from the Consolidated Fund for the purpose of meeting expenditure necessary to carry on the services of the Government until the expiration of 6 months from the beginning of that financial year or the coming into operation of the appropriation law, whichever is the earlier.

107. Contingencies Fund

(1) There shall be such provision as may be prescribed by Parliament for the establishment of a Contingencies Fund and for authorising the Minister responsible for finance, if he is satisfied that there has arisen an urgent and unforeseen need for expenditure for which no other provision exists, to make advances from that Fund to meet that need.

(2) Where any advance is made from the Contingencies Fund, a supplementary estimate shall be laid before the Assembly, and a Bill or motion shall be introduced, as soon as possible for the purpose of replacing the amount so advanced.

108. Remuneration of certain officers

(1) There shall be paid to the holders of the offices to which this section applies such salaries and such allowances as may be prescribed.

(2) The salaries and any allowances payable to the holders of the offices to which this section applies shall be a charge on the Consolidated Fund.

(3) Any alteration to the salary payable to any person holding any office to which this section applies or to his terms of office, other than allowances, that is to his disadvantage shall not have effect in relation to that person after his appointment unless he consents to its having effect.

(4) Where a person´s salary or terms of office depend upon his option, the salary or terms for which he opts shall, for the purposes of subsection (3), be deemed to be more advantageous to him than any others for which he might have opted.

(5) This section applies to the office of President, chairman or other members of the Electoral Boundaries Commission or of the Electoral Supervisory Commission, Electoral Commissioner, Director of Public Prosecutions, Chief Justice, Senior Puisne Judge, Puisne Judge, appointed member of the Judicial and Legal Service Commission, chairman or other member of the Public Service Commission, appointed member of the Disciplined Forces Service Commission, Commissioner of Police, Ombudsman and Director of Audit.

[Amended 48/91; 5/97; 31/00, 33/01]

109. Public debt

(1)   All debt charges for which Mauritius is liable shall be a charge on the Consolidated Fund.

(2)   For the purposes of this section, 'debt charges' includes interest, sinking fund charges, the repayment or amortisation of debt, and all expenditure in connection with the raising of loans on the security of the revenues of Mauritius or the Consolidated Fund and the service and redemption of debt thereby created.

110. Director of Audit

(1)    There shall be a Director of Audit, whose office shall be a public office and who shall be appointed by the Public Service Commission, acting after consultation with the Prime Minister and the Leader of the Opposition.

(2)   The public accounts of Mauritius and of all courts of law and all authorities and officers of the Government shall be audited and reported on by the Director of Audit and for that purpose the Director of Audit or any person authorised by him in that behalf shall have access to all books, records, reports and other documents relating to those accounts:

Provided that, if it is so prescribed in the case of any body corporate directly established by law, the accounts of that body corporate shall be audited and reported on by such person as may be prescribed.

(3)   The Director of Audit shall submit his reports to the Minister responsible for finance, who shall cause them to be laid before the Assembly.

(4)   In the exercise of his functions under this Constitution, the Director of Audit shall not be subject to the direction or control of any other person or authority.

CHAPTER XI – MISCELLANEOUS

111. Interpretation

(1)   In this Constitution –

'Assembly' means the National Assembly established by this Constitution;

'Commonwealth' means Mauritius and any country to which section 25 of this Constitution for the time being applies and includes the dependencies of any such country;

'Court of Appeal' means the Court of Civil Appeal or the Court of Criminal Appeal;

'disciplinary law' means a law regulating the discipline –

(a) of any disciplined force; or

(b) of persons serving prison sentences;

'disciplined force' means –

(a) a naval, military or air force;

(b) the Police Force;

(c) a fire service established by any law in force in Mauritius; or

(d) the Mauritius Prison Service;

'financial year' means the period of 12 months ending on 30 June in any year or such other day as may be prescribed by Parliament;

'Gazette' means the Government Gazette of Mauritius;

'Government' means the Government of the Republic of Mauritius;

'Island of Mauritius' includes the small islands adjacent to the Island of Mauritius;

'Judicial Committee' means the Judicial Committee of the Privy Council established by the Judicial Committee Act 1833 of the United Kingdom as from time to time amended by any Act of Parliament of the United Kingdom;

'local authority' means the council of a town, district or village in Mauritius;

'local government officer' means a person holding or acting in any office of emolument in the service of a local authority but does not include a person holding or acting in the office of Mayor, Chairman, or other member of a local authority or standing counsel or attorney of a local authority;

'Mauritius' includes –

(a) the Islands of Mauritius, Rodrigues, Agalega, Tromelin, Cargados Carajos and the Chagos Archipelago, including Diego Garcia and any other island comprised in the State of Mauritius;

(b) the territorial sea and the air space above the territorial sea and the islands specified in paragraph (a);

(c) the continental shelf; and

(d) such places or areas as may be designated by regulations made by the Prime Minister, rights over which are or may become exercisable by Mauritius;

'oath' includes affirmation;

'oath of allegiance' means the oath of allegiance prescribed in the Third Schedule;

'Parliament' means the Parliament established by this Constitution;

'Police Force' means the Mauritius Police Force and includes any other police force established in accordance with such provision as may be prescribed by Parliament;

'prescribed' means prescribed in a law:

Provided that –

(a) in relation to anything that may be prescribed only by Parliament, it means prescribed in any Act of Parliament; and

(b) in relation to anything that may be prescribed only by some other specified person or authority, it means prescribed in an order made by that other person or authority;

'President' means the President of the Republic of Mauritius;

'public office' means, subject to section 112, an office of emolument in the public service;

'public officer' means the holder of any public office and includes a person appointed to act in any public office;

'public service' means the service of the State in a civil capacity in respect of the Government of Mauritius;

'Rodrigues' means the Island of Rodrigues;

'session' means the sittings of the Assembly commencing when Parliament first meets after any general election or its prorogation at any time and terminating when Parliament is prorogued or is dissolved without having been prorogued;

'sitting' means a period during which the Assembly is sitting continuously without adjournment, and includes any period during which the Assembly is in committee;

'State' means the Republic of Mauritius;

'subordinate court' means any court of law subordinate to the Supreme Court but does not include a court-martial;

'Vice-President' means the Vice-President of the Republic of Mauritius.

(2)  Except as otherwise provided in this Constitution, the Interpretation Act 1889* shall apply, with the necessary adaptations, for the purpose of interpreting this Constitution and otherwise in relation to it as it applies for the purpose of interpreting and in relation to Acts of the Parliament of the United Kingdom.

[Amended 2/82; 48/91]

112. References to public office

(1)   In this Constitution, 'public office' –

(a)    shall be construed as including the offices of Judges of the Supreme Court, the offices of members of all other courts of law in Mauritius (other than courts martial), the offices of members of the Police Force and the offices of the President´s personal staff; and

* 1889 c 63 (UK).

       (b) shall not be construed as including –

   (i) the office of member of the Assembly or the Rodrigues National Assembly or its Chairperson;

(ii)     any office, appointment to which is restricted to members of the Assembly or the Rodrigues Regional Assembly; or

(iii)   the office of member of any Commission or tribunal established by this Constitution.

(2)   For the purposes of this Constitution, a person shall not be considered as holding a public office or a local government office, as the case may be, by reason only that he is in receipt of a pension or other like allowance in respect of service of the State or under a local authority.

(3)   For the purposes of sections 38(3), 88(2) and 90(2), a person shall not be considered as holding a public office or a local government office, as the case may be, by reason only that he is in receipt of fees and allowances by virtue of his membership of a board, council, committee, tribunal or other similar authority (whether incorporated or not).

[Amended 48/91, 32/01]

113. Appointment to certain offices

(1)   A suitably qualified person may, irrespective of his age, be appointed to hold the office of Electoral Commissioner, Director of Public Prosecutions, Chief Justice, Senior Puisne Judge, Puisne Judge, Commissioner of Police or Director of Audit for such term, not exceeding 4 years as may be specified in the instrument of appointment and this Constitution shall have effect in relation to any person so appointed as if he would attain the retiring age applicable to that office on the day on which the specified term expires.

(2) Notwithstanding any provision to the contrary in this Constitution,

but subject to subsection (3), an appointment made under section 87 or 89(3)(h) shall be for such term as may be specified in the instrument of appointment.

(3)   An appointment to which subsection (2) applies –

(a) subject to paragraph (b), shall terminate at the expiry of the term specified in the instrument of appointment;

(b) may be terminated at any time after a general election held after the appointment.

(4)   Where under any law other than this Constitution, an appointment is made to an office by the Prime Minister, the Deputy Prime Minister, or any other Minister or on his advice or after consultation with him, or with his approval, the holder of the office may, notwithstanding any provision to the contrary in this Constitution, be required to vacate the office at any time after a general election held after the appointment.

(5) Where an appointment is terminated under subsection (3)(b) or (4), no compensation shall be payable to the holder for loss of office by reason of the termination of his appointment, other than such compensation as may be prescribed under the Labour Act and he shall not be entitled to any other damages or compensation under any other law whatsoever.

[Amended 2/82; 38/91]

114. Acting appointments

(1)   In this Constitution, a reference to the holder of an office by the term designating his office shall be construed as including a reference to any person for the time being lawfully acting in or exercising the functions of that office.

(2)  Where power is vested by this Constitution in any person or authority to appoint any person to act in or perform the functions of any office where the holder of the office is himself unable to perform those functions, no such appointment shall be called in question on the ground that the holder of the office was not unable to perform those functions.

115. Reappointments and concurrent appointments

(1) Where any person has vacated any office established by this Constitution, he may, if qualified, again be appointed or elected to hold that office in accordance with this Constitution.

(2) Where a power is conferred by this Constitution upon any person to make any appointment to any office, a person may be appointed to that office, notwithstanding that some other person may be holding that office, when that other person is on leave of absence pending the relinquishment of the office; and where 2 or more persons are holding the same office by reason of an appointment made in pursuance of this subsection, then, for the purposes of any function conferred upon the holder of that office, the person last appointed shall be deemed to be the sole holder of the office.

116. Removal from office

(1)  References in this Constitution to the power to remove a public officer from his office shall be construed as including references to any power conferred by any law to require or permit that officer to retire from the public service and to any power or right to terminate a contract on which a person is employed as a public officer and to determine whether any such contract shall or shall not be renewed:

Provided that –

(a) nothing in this subsection shall be construed as conferring on any person or authority power to require any person to whom section 78(2) to (6) or section 92(2) to (5) apply to retire from the public service; and

(b) any power conferred by any law to permit a person to retire from the public service shall, in the case of any public officer who may be removed from office by some person or authority other than a Commission established by this Constitution, vest in the Public Service Commission.

(2)   Any provision in this Constitution that vests in any person or authority power to remove a public officer from his office shall be without prejudice to the power of any person or authority to abolish any office or to any law providing for the compulsory retirement of public officers generally or any class of public officer on attaining an age specified in it.

117. Resignations

Any person who has been appointed to any office established by this Constitution may resign from that office by writing under his hand addressed to the person or authority by whom he was appointed, and the resignation shall take effect, and the office shall accordingly become vacant –

(a) at such time or on such date (if any) as may be specified in the writing; or

(b) when the writing is received by the person or authority to whom it is addressed or by such other person as may be authorised by that person or authority to receive it,

whichever is the later:

Provided that the resignation may be withdrawn before it takes effect where the person or authority to whom the resignation is addressed consents to its withdrawal.

118. Performance of functions of Commissions and tribunals

(1)   Any Commission established by this Constitution may by regulations make provision for regulating and facilitating the performance by the Commission of its functions under this Constitution.

(2)   Any decision of any such Commission shall require the concurrence of a majority of all the members and, subject to this subsection, the Commission may act, notwithstanding the absence of any member:

Provided that where in any particular case a vote of all the members is taken to decide the question and the votes cast are equally divided, the chairman shall have and shall exercise a casting vote.

(3)    Subject to this section, any such Commission may regulate its own procedure.

(4)   Subject to section 91A, in   the exercise of its functions under this Constitution, no such Commission shall be subject to the direction or control of any other person or authority.

(5)   In addition to the functions conferred upon it by or under this Constitution, any such Commission shall have such powers and other functions as may be prescribed.

(6)   The validity of the transaction of business of any such Commission shall not be affected by the fact that some person who was not entitled to do so took part in the proceedings.

(7)   Subsections (1), (2), (3) and (4) shall apply in relation to a tribunal established for the purposes of sections 5(4), 15(4), 18(3), 78(4), 92(4), or 93(4) as they apply in relation to a Commission established by this Constitution, and any such tribunal shall have the same powers as the Supreme Court in respect of the attendance and examination of witnesses (including the administration of oaths and the examination of witnesses abroad) and in respect of the production of documents.

 

[Ammended 20 May 2008; Proclaimed 1 June 2009]

119. Saving for jurisdiction of courts

No provision of this Constitution that any person or authority shall not be subject to the direction or control of any other person or authority in the exercise of any functions under this Constitution shall be construed as precluding a court of law from exercising jurisdiction in relation to any question, whether that person or authority has performed those functions in accordance with this Constitution or any other law or should not perform those functions.

120. Power to amend and revoke instruments

Where any power is conferred by this Constitution to make any order, regulation or rule, or to give any direction, the power shall be construed as including the power, exercisable in like manner, to amend or revoke any such order, regulation, rule or direction.

121. Consultation

Where any person or authority, other than the President, is directed by this Constitution to exercise any function after consultation with any other person or authority, that person or authority shall not be obliged to exercise that function in accordance with the advice of that other person or authority.

[Amended 48/91]

122. Parliamentary control over certain subordinate legislation

All laws, other than Acts of Parliament, that make such provision as is mentioned in section 5(1) or section 15(3) or that establish new criminal offences or impose new penalties shall be laid before the Assembly as soon as is practicable after they are made and (without prejudice to any other power that may be vested in the Assembly in relation to any such law) any such law may be revoked by the Assembly by resolution passed within 30 days after it is laid before the Assembly:

Provided that –

(a) where it is so prescribed by Parliament in relation to any such law, that law shall not be laid before the Assembly during a period of public emergency within the meaning of Chapter II;

(b) in reckoning the period of 30 days after any such law is laid before the Assembly, no account shall be taken of any period during which Parliament is dissolved or prorogued or is adjourned for more than 4 days.