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Constitution Contd2


76.    Supreme Court
(1) There shall be a Supreme Court for Mauritius which shall have unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law other than a disciplinary law and such jurisdiction and powers as may be conferred upon it by this Constitution or any other law.
(2) Subject to section 77, the judges of the Supreme Court shall be the Chief Justice, the Senior Puisne Judge and such number of Puisne Judges as may be prescribed by Parliament:
Provided that the office of a judge shall not be abolished while any person is holding that office unless he consents to its abolition.
77. Appointment of Judges of Supreme Court
(1) The Chief Justice shall be appointed by the President acting after consultation with the Prime Minister.
(2) The Senior Puisne Judge shall be appointed by the President, acting in accordance with the advice of the Chief Justice.
(3) The Puisne Judges shall be appointed by the President, acting in accordance with the advice of the Judicial and Legal Service Commission.
(4) No person shall be qualified for appointment as a Judge of the Supreme Court unless he is, and has been for at least 5 years, a barrister entitled to practise before the Supreme Court.
(5) Where the office of Chief Justice is vacant or the person holding that office is for any reason unable to perform the functions of the office, those functions shall be discharged by such one of the other Judges of the Supreme Court as may be designated in that behalf by the President acting in accordance with the advice of the person holding the office of Chief Justice:
Provided that if the office of Chief Justice is vacant or if the person holding that office is on leave of absence, pending retirement, or if the President, acting in his own deliberate judgment, considers that it is impracticable to obtain the advice of that person owing to that person´s absence or illness, the President shall act after consultation with the Prime Minister.
(6) Where the office of Senior Puisne Judge is vacant or the person holding that office is acting as Chief Justice or is for any reason unable to perform the functions of the office, such one of the Judges of the Supreme Court as the President, acting in accordance with the advice of the Chief Justice, may appoint shall act in the office of Senior Puisne Judge.
(7) Where the office of any Puisne Judge is vacant or where a person holding the office of Puisne Judge is acting as Chief Justice or as Senior Puisne Judge or is for any reason unable to perform the functions of his office or where the Prime Minister, having been informed by the Chief Justice that the state of business in the Supreme Court requires that the number of Judges should be temporarily increased and having consulted with the Chief Justice, request the President to appoint an additional Judge, the President, acting in accordance with the advice of the Judicial and Legal Service Commission, may appoint a person qualified for appointment as a Judge of the Supreme Court to act as a Puisne Judge of that court:
Provided that a person may act as a Puisne Judge notwithstanding that he has attained the age prescribed for the purposes of section 78(1).
(8) Any person appointed under this section to act as a Puisne Judge shall, unless he is removed from office under section 78, continue to act for the period of his appointment or, if no such period is specified, until his appointment is revoked by the President, acting in accordance with the advice of the Chief Justice:
Provided that a person whose appointment to act as a Puisne Judge has expired or has been revoked may, with the permission of the President, acting in accordance with the advice of the Chief Justice, continue to act as such for such a period as may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that were commenced before him previously thereto.
[Amended 48/91]
78. Tenure of office of Judges of Supreme Court
(1) Subject to this section, a person holding the office of a Judge of the Supreme Court shall vacate that office on attaining the retiring age:
Provided that he may, with the permission of the President, acting in his own deliberate judgment, in the case of the Chief Justice or in any other case, in accordance with the advice of the Chief Justice, continue in office for such period as may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that were commenced before him before he attained that age.
(2) A Judge of the Supreme Court may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour, and shall not be so removed except in accordance with subsection (3).
(3) A Judge of the Supreme Court shall be removed from office by the President where the question of removing him from office has, pursuant to subsection (4), been referred to the Judicial Committee and the Judicial Committee has advised that the Judge ought to be removed from office for inability or misbehaviour.
(4) Where the Chief Justice or, in relation to the removal of the person holding the office of Chief Justice, the President considers that the question of removing a Judge of the Supreme Court from office for inability or misbehaviour ought to be investigated –
(a) the President shall appoint a tribunal, which shall consist of a chairman and not less than 2 other members, selected by the President from among persons who hold or have held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court;
(b) the tribunal shall enquire into the matter and report on the facts to the President and recommend to the President whether the question of removing the judge from office should be referred to the Judicial Committee; and
(c) where the tribunal so recommends, the President shall refer the question accordingly.
(5) Where the question of removing a Judge of the Supreme Court from office has been referred to a tribunal under subsection (4), the President may suspend the Judge from performing the functions of his office; and any such suspension may at any time be revoked by the President and shall in any case cease to have effect –
(a) where the tribunal recommends to the President that he should not refer the question of removing the Judge from office to the Judicial Committee; or
(b) where the Judicial Committee advises that the Judge ought not to be removed from office.
(6) The functions of the President under this section shall be exercised by him in his own deliberate judgment.
(7) The retiring age for the purposes of subsection (1) shall be the age of 62 years or such other age as may be prescribed by Parliament:
Provided that a provision of any Act of Parliament, to the extent that it alters the age at which Judges of the Supreme Court shall vacate their offices, shall not have effect in relation to a Judge after his appointment unless he consents to its having effect.
[Amended 48/91]
79. Oaths to be taken by Judges
A Judge of the Supreme Court shall not enter upon the duties of his office unless he has taken and subscribed the oath of allegiance and such oath for the due execution of his office as is prescribed by the Third Schedule.
80. Courts of Appeal
(1) There shall be a Court of Civil Appeal and a Court of Criminal Appeal for Mauritius, each of which shall be a division of the Supreme Court.
(2) The Court of Civil Appeal shall have such jurisdiction and powers to hear and determine appeals in civil matters and the Court of Criminal Appeal shall have such jurisdiction and powers to hear and determine appeals in criminal matters as may be conferred upon them respectively by this Constitution or any other law.
(3) The Judges of the Court of Civil Appeal and the Court of Criminal Appeal shall be the Judges for the time being of the Supreme Court.
81. Appeals to the Judicial Committee
(1) An appeal shall lie from decisions of the Court of Appeal or the Supreme Court to the Judicial Committee as of right in the following cases –
(a) final decisions, in any civil or criminal proceedings, on questions as to the interpretation of this Constitution;
(b) where the matter in dispute on the appeal to the Judicial Committee is of the value of 10,000 rupees or upwards or where the appeal involves, directly or indirectly, a claim to or a question respecting property or a right of the value of 10,000 rupees or upwards, final decisions in any civil proceedings;
(c) final decisions in proceedings under section 17; and
(d) in such other cases as may be prescribed by Parliament:
Provided that no such appeal shall lie from decisions of the Supreme Court in any case in which an appeal lies as of right from the Supreme Court to the Court of Appeal.
(2) An appeal shall lie from decisions of the Court of Appeal or of the Supreme Court to the Judicial Committee with the leave of the Court in the following cases –
(a) where in the opinion of the Court the question involved in the appeal is one that, by reason of its great general or public importance or otherwise, ought to be submitted to the Judicial Committee, final decisions in any civil proceedings; and
(b) in such other cases as may be prescribed by Parliament:
Provided that no such appeal shall lie from decisions of the Supreme Court in any case in which an appeal lies to the Court of Appeal, either as of right or by the leave of the Court of Appeal.
(3) Subsections (1) and (2) shall be subject to section 37(6) and paragraphs 2(5), 3(2) and 4(4) of the First Schedule.
(4) In this section, the references to final decisions of a court do not include any determination of a court that any application made to it is merely frivolous or vexatious.
(5) Nothing in this section shall affect any right of the Judicial Committee to grant special leave to appeal from the decision of any court in any civil or criminal matter.
[Amended 48/91]
82. Supreme Court and subordinate courts
(1) The Supreme Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court.
(2) An appeal shall lie to the Supreme Court from decisions of subordinate courts in the following cases –
(a) as of right from any final decision in any civil proceedings;
(b) as of right from any final decision in criminal proceedings whereby any person is adjudged to pay a fine of or exceeding such amount as may be prescribed or to be imprisoned with or without the option of a fine;
(c) by way of case stated, from any final decision in criminal proceedings on the ground that it is erroneous in point of law or in excess of jurisdiction; and
(d) in such other cases as may be prescribed:
Provided that an appeal shall not lie to the Supreme Court from the decision given by a subordinate court in any case where, under any law –
(i) an appeal lies as of right from that decision to the Court of Appeal;
(ii) an appeal lies from that decision to the Court of Appeal with the leave of the court that gave the decision or of some other court and that leave has not been withheld;
(iii) an appeal lies as of right from that decision to another subordinate court; or
(iv) an appeal lies from that decision to another subordinate court with the leave of the court that gave the decision or of some other court and that leave has not been withheld.
83. Original jurisdiction of Supreme Court in constitutional questions
(1) Subject to sections 41(5), 64(5) and 101(1), where any person alleges that any provision of this Constitution (other than Chapter II) has been contravened and that his interests are being or are likely to be affected by such contravention, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for a declaration and for relief under this section.
(2) The Supreme Court shall have jurisdiction, in any application made by any person in pursuance of subsection (1) or in any other proceedings lawfully brought before the court, to determine whether any provision of this Constitution (other than Chapter II) has been contravened and to make a declaration accordingly:
Provided that the Supreme Court shall not make a declaration in pursuance of the jurisdiction conferred by this subsection unless it is satisfied that the interests of the person by whom the application under subsection (1) is made or, in the case of other proceedings before the court, a party to these proceedings, are being or are likely to be affected.
(3) Where the Supreme Court makes a declaration in pursuance of subsection (2) that any provision of the Constitution has been contravened and the person by whom the application under subsection (1) was made or, in the case of other proceedings before the court, the party in those proceedings in respect of whom declaration is made, seeks relief, the Supreme Court may grant to that person such remedy, being a remedy available against any person in any proceedings in the Supreme Court under any law for the time being in force in Mauritius, as the court considers appropriate.
(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 on it by this section (including rules with respect to the time within which applications shall be made under subsection (1)).
(5) Nothing in this section shall confer jurisdiction on the Supreme Court to hear or determine any such question as is referred to in section 37 or paragraph 2(5), 3(2) or 4(4) of the First Schedule otherwise than upon an application made in accordance with that section or that paragraph, as the case may be.
[Amended 48/91]
84. Reference of constitutional questions to Supreme Court
(1) Where any question as to the interpretation of this Constitution arises in any court of law established for Mauritius (other than the Court of Appeal, the Supreme Court or a court martial) and the court is of opinion that the question involves a substantial question of law, the court shall refer the question to the Supreme Court.
(2) Where any question is referred to the Supreme Court in pursuance of this section, the Supreme Court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision or, where the decision is the subject of an appeal to the Court of Appeal or the Judicial Committee, in accordance with the decision of the Court of Appeal or, as the case may be, of the Judicial Committee.
[Amended 48/91]
85. Judicial and Legal Service Commission
(1) There shall be a Judicial and Legal Service Commission which shall consist of the Chief Justice, who shall be Chairman, and the following members -
  • (a) the Senior Puisne Judge;
  • (b) the Chairman of the Public Service Commission; and
  • (c) one other member (in this section referred to as 'the appointed member') appointed by the President, acting in accordance with the advice of the Chief Justice.
(2) The appointed member shall be a person who is or has been 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 any such court.
(3) Where the office of the appointed member is vacant or the appointed member is for any reason unable to perform the functions of his office, the President, acting in accordance with the advice of the Chief Justice, may appoint a person qualified for appointment as such a member to act as a member of the Commission and any person so appointed shall continue to act until his appointment is revoked by the President, acting in accordance with the advice of the Chief Justice.
[Amended 48/91]
86. Appointment of judicial and legal officers
(1) Power to appoint persons to hold or act in offices to which this section applies (including power to confirm appointments), to exercise disciplinary control over persons holding or acting in such offices and to remove such persons from office shall vest in the Judicial and Legal Service Commission.
(2) The offices to which this section applies are the offices specified in the Second Schedule and such other offices as may be prescribed:
Provided that –
(a) where the name of any such office is changed, or any such office is abolished, this section and that Schedule shall have effect accordingly;
(b) this section shall also apply to such other offices, being offices that in the opinion of the Judicial and Legal Service Commission are offices similar to those specified in the Second Schedule, as may be prescribed by the Commission, acting with the concurrence of the Prime Minister.
87. Appointments of principal representatives of Mauritius abroad
The power to appoint persons to hold the offices of Ambassador, High Commissioner or other principal representative of Mauritius in any other country or accredited to any international organisation and to remove such persons from office shall vest in the President, acting in accordance with the advice of the Prime Minister:
Provided that, before advising the President to appoint to any such office a person who holds or is acting in some other public office, the Prime Minister shall consult the Public Service Commission.
[Amended 48/91]
88. Public Service Commission
(1) There shall be a Public Service Commission, which shall consist of a Chairman, 2 Deputy-Chairmen and 4 other Commissioners appointed by the President.
(2) No person shall be qualified for appointment as a Commissioner of the Public Service Commission if he is a member of, or a candidate for election to, the Assembly or any local authority, a public officer or a local government officer.
(3) Where the office of Chairman of the Public Service Commission is vacant or the Chairman is for any reason unable to perform the functions of his office, those functions shall be performed by such one of the Deputy-Chairmen or Commissioners of the Commission as the President may appoint.
(4) Where at any time there are less than 3 Commissioners of the Public Service Commission besides the Chairman or where any such Commissioner is acting as Chairman or is for any reason unable to perform the functions of his office, the President may appoint a person qualified for appointment as a Commissioner of the Commission to act as a Commissioner, and any person so appointed shall continue to act until his appointment is revoked by the President.
(5) The functions of the President under this section shall be exercised by him after consultation with the Prime Minister and the Leader of the Opposition.
[Amended 48/91; 5/97]
89. Appointment of public officers
(1) Subject to this Constitution, power to appoint persons to hold or act in any offices in the public service (including power to confirm appointments), to exercise disciplinary control over persons holding or acting such offices and to remove such persons from office shall vest in the Public Service Commission.
(2) (a) The Public Service Commission may, subject to such conditions as it thinks fit, delegate any of its powers under this section by directions in writing to any Commissioner of the Commission or to any public officer.
(b) The Public Service Commission may, subject to such conditions as it may prescribe, delegate by directions in writing, its powers under this section to enquire and report to it –
(i) in the case of any professional misconduct or negligence committed by a public officer in the performance of his duties, to any appropriate statutory disciplinary body;
(ii) in the case of a public officer who has been seconded for duty or transferred to a body corporate established by law for public purposes, to that body corporate.
(3) This section shall not apply to –
(a) the office of Chief Justice or Senior Puisne Judge;
(b) except for the purpose of making appointments thereto or to act therein, the office of Director of Audit;
(c) the office of Ombudsman;
(d) any office, appointments to which are within the functions of the Judicial and Legal Service Commission or the Disciplined Forces Service Commission;
(e) any office to which section 87 applies;
(f) any ecclesiastical office;
(g) –
(h) any office of a temporary nature, the duties attaching to which are mainly advisory and which is to be filled by a person serving under a contract on non-pensionable terms.
(4) Before any appointment is made to the office of Secretary to the Cabinet, of Financial Secretary, of a Permanent Secretary or of any other supervising officer within the meaning of section 68, the Public Service Commission shall consult the Prime Minister and no appointment to the office of Secretary to the Cabinet, of Financial Secretary or of a Permanent Secretary shall be made unless the Prime Minister concurs in it.
(5) Notwithstanding subsection (1) to (4), the power to transfer any person holding any such office as is mentioned in subsection (4) to any other such office, being an office carrying the same emoluments, shall vest in the President, acting in accordance with the advice of the Prime Minister.
(6) Before the Public Service Commission appoints to or to act in any public office any person holding or acting in any office the power to make appointments to which is vested in the Judicial and Legal Service Commission or the Disciplined Forces Service Commission, the Public Service Commission shall consult that Commission.
(7) Before making any appointment to any office on the staff of the Ombudsman, the Public Service Commission shall consult the Ombudsman.
(8) The Public Service Commission shall not exercise any of its powers in relation to any office on the personal staff of the President, or in relation to any person holding or acting in any such office, without the concurrence of the President, acting in his own deliberate judgment.
(9) References in this section to the office of Financial Secretary or of a Permanent Secretary are references to that office as established on 11 March 1968 and include references to any similar office established after that date that carries the same or higher emoluments.
[Amended 19/90; 48/91; 5/97; 31/00, 33/01]
90. Disciplined Forces Service Commission
(1) There shall be for Mauritius a Disciplined Forces Service Commission which shall consist of the Chairman of the Public Service Commission as Chairman and 4 Commissioners who shall be appointed by the President.
(2) No person shall be qualified for appointment as a Commissioner of the Disciplined Forces Service Commission where he is a member of or a candidate for election to, the Assembly or any local authority, a public officer or a local government officer.
(3) Where at any time there are less than 2 Commissioners of the Disciplined Forces Service Commission besides the Chairman or where any such Commissioner is for any reason unable to perform the functions of his office, the President may appoint a person who is qualified for appointment as a Commissioner of the Commission to act as a Commissioner, and any person so appointed shall continue to act until his appointment to act is revoked by the President.
(4) The functions of the President under this section shall be exercised by him after consultation with the Prime Minister and the Leader of the Opposition.
[Amended 48/91; 5/97]
91. Appointment in the Disciplined Forces
(1) Subject to section 93, power to appoint persons to hold or act in any office in the disciplined forces (including power to confirm appointments), to exercise disciplinary control over persons holding or acting in such offices and to remove such persons from office shall vest in the Disciplined Forces Service Commission:
Provided that appointments to the office of Commissioner of Police shall be made after consultation with the Prime Minister.
(2) The Disciplined Forces Service Commission may, subject to such conditions as it thinks fit, by directions in writing delegate any of its powers of discipline or removal from office to the Commissioner of Police or to any other officer of the disciplined forces, but no person shall be removed from office except with the confirmation of the Commission.
[Amended 5/97]
91A. Public Bodies Appeal Tribunal

(1) There shall be a Public Bodies Appeal Tribunal which shall, notwithstanding section 119 but subject to subsection (3), have jurisdiction to hear and determine appeals made by public officers against such final decisions of such Commission established under this Constitution, as may be prescribed, or of any Commissioner or other person exercising powers delegated by that Commission.

(2) The Public Bodies Appeal Tribunal may also hear and determine appeals made against final decisions of such other public bodies as may be prescribed.

(3) No appeal shall lie to the Public Bodies Appeal Tribunal from any decision taken by a Commission prescribed under subsection (1) or by a public body prescribed under Subsection (2), where the decision has been taken after consultation with, or with the concurrence of, or on the advice of, the Prime Minister.

(4) The Public Bodies Appeal Tribunal shall consist of –
(a) a Chairperson who is a barrister of not less than 10 years’ standing;
(b) 2 other members who hold such qualifications as may be prescribed.

(5) (a) The members of the Public Bodies Appeal Tribunal shall be appointed by the President after consultation with the Prime Minister and the Leader of the Opposition.
(b) Where any of the 3 members of the Public Bodies Appeal Tribunal is unable to take part in the proceedings of the Tribunal on account of a direct interest in any appeal before the Tribunal, or of any other reason, another member shall be appointed, on an ad hoc basis, in the manner provided for under paragraph (a), to replace that member in the appeal.

(6) No person shall be appointed under subsection (5) where –
(a) he is a member of the Assembly or a local authority;
(b) he is an office bearer of a political party or other political organisation;
(c) at any time during the 10 years preceding such proposed appointment, he was engaged in politics;
(d) he is a public officer, a local government officer or an employee of a statutory body; or
(e) he is a person who receives, or is entitled to receive, fees or allowances specified in section 112(3).

(7) A member of the Public Bodies Appeal Tribunal shall cease to hold office as such where any circumstances arise that, if he did not hold that office, would cause him to be disqualified for appointment.

(8) Where an appointment lapses or is terminated under subsection (7), no compensation shall or become payable to the holder for loss of office by reason of the lapse or termination of his appointment.

(9) Notwithstanding any other provision of the Constitution –
(a) proceedings before the Public Bodies Appeal Tribunal shall not be held in public, except where the Tribunal decides otherwise with the agreement of the parties to an appeal;
(b) the Public Bodies Appeal Tribunal shall not be bound to communicate to any other person the contents of any report, document or other material produced by any Commission or public body and, except where necessary for the purpose of making its decision, the Tribunal shall make no reference to the contents thereof in its decision.
(10) A member of the Public Bodies Appeal Tribunal shall hold office for such term and on such conditions as may be determined by the President.

(11) A member of the Public Bodies Appeal Tribunal may be removed from office only for inability to discharge the functions of his office whether arising from infirmity of body or mind, or any other causes, or for misbehaviour and shall not be removed except in accordance with subsections (12) to (14).

(12) A member of the Public Bodies Appeal Tribunal shall be removed from office by the President where the question of his removal from that office has been referred to a tribunal appointed under subsection (13) and the tribunal has recommended to the President that he ought to be removed from office for inability to discharge the functions of his office or for misbehaviour.

(13) Where the President, acting in his own deliberate judgment, considers that the question of removing a member of the Public Bodies Appeal Tribunal ought to be investigated –
(a) the President, acting in his own deliberate judgment, shall appoint a tribunal which shall consist of a Chairperson and not less than 2 other members, being persons who hold or have held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or of a court having jurisdiction in appeals from such a court; and
(b) that tribunal shall enquire into the matter and report on the facts to the President and recommend to the President whether the member of the Public Bodies Appeal Tribunal ought to be removed under this section.

(14) Where the question of removing a member has been referred to a tribunal under subsection (13), the President, acting in his own deliberate judgment, may suspend the member from performing the functions of his office and any such suspension may at any time be revoked by the President, acting in his own deliberate judgment, and shall in any case cease to have effect where the tribunal recommends to the President that the member should not be removed.

(15) The offices of the staff of the Public Bodies Appeal Tribunal shall be public offices.

(16) There shall be such provision as may be prescribed for such supplementary or ancillary matters as may appear necessary or expedient in consequence of any of the provision of this section.

[Ammended 20 May 2008; Proclaimed 1 June 2009]
92. Tenure of office of members of Commissions and the Ombudsman
(1) Notwithstanding any provision to the contrary in this Constitution but subject to this section, a person holding an office to which this section applies (referred to in this section as a 'Commissioner') –
(a) subject to paragraph (b), shall vacate his office –
(i) at the expiration of 3 years from the date of his appointment; or
(ii) where any circumstances arise that, if he did not hold that office, would cause him to be disqualified for appointment;
(b) except in the case of the appointed member of the Judicial and Legal Service Commission, may be required to vacate his office at any time after a general election held after the appointment.
(1A) Where an appointment is terminated under subsection (1)(b) 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.
(2) A Commissioner may be removed from office only for inability to discharge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with this section.
(3) A Commissioner shall be removed from office by the President where the question of his removal from that office has been referred to a tribunal appointed under subsection (4) and the tribunal has recommended to the President that he ought to be removed from office for inability as aforesaid or for misbehaviour.
(4) Where the President, acting in his own deliberate judgment, considers that the question of removing a Commissioner ought to be investigated –
(a) the President, acting in his own deliberate judgment, shall appoint a tribunal which shall consist of a chairman and not less than 2 other members, being persons who hold or have held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or of a court having jurisdiction in appeals from such a court; and
(b) that tribunal shall enquire into the matter and report on the facts to the President and recommend to the President whether the Commissioner ought to be removed under this section.
(5) Where the question of removing a Commissioner has been referred to a tribunal under this section, the President, acting in his own deliberate judgment, may suspend the Commissioner from performing the functions of his office and any such suspension may at any time be revoked by the President, acting in his own deliberate judgment, and shall in any case cease to have effect if the tribunal recommends to the President that the Commissioner should not be removed.
(6) The offices to which this section applies are those of appointed member of the Judicial and Legal Service Commission, Chairman or Commissioner of the Public Service Commission and Commissioner of the Disciplined Forces Service Commission:
Provided that, in its application to the appointed member of the Judicial and Legal Service Commission, subsection (4) shall have effect as if for the words 'acting in his own deliberate judgment' there were substituted the words 'acting in accordance with the advice of the Chief Justice'.
(7) This section shall apply to the office of Ombudsman as it applies to a person specified in subsection (6):
Provided that subsection (1) shall have effect as if the words '4 years' were substituted for the words '3 years'.
[Amended 2/82; 48/91; 5/97]
93. Removal of certain officers
(1) Subject to this section, a person holding an office to which this section applies shall vacate that office on attaining the retiring age.
(2) Any such person may be removed from office only for inability to discharge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with this section.
(3) Any such person shall be removed from office by the President if the question of his removal from that office has been referred to a tribunal appointed under subsection (4) and the tribunal has recommended to the President that he ought to be removed from office for inability as aforesaid or for misbehaviour.
(4) Where the appropriate Commission considers that the question of removing any such person ought to be investigated –
(a) the President, acting in his own deliberate judgment, shall appoint a tribunal which shall consist of a chairman and not less than 2 other members, being persons who hold or have held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from such a court; and
(b) that tribunal shall enquire into the matter and report on the facts to the President and recommend to the President whether he ought to be removed under this section.
(5) Where the question of removing any such person has been referred to a tribunal under this section, the President, acting in his own deliberate judgment, may suspend him from performing the functions of his office and any such suspension may at any time be revoked by the President, acting in his own deliberate judgment, and shall in any case cease to have effect if the tribunal recommends to the President that he should not be removed.
(6) The offices to which this section applies are those of Electoral Commissioner, Director of Public Prosecutions, Commissioner of Police, and Director of Audit.
(7) In this section 'the appropriate Commission' means –
(a) in relation to a person holding the office of Electoral Commissioner or Director of Public Prosecutions, the Judicial and Legal Service Commission;
(b) in relation to a person holding the office of Commissioner of Police, the Disciplined Forces Service Commission;
(c) in relation to a person holding the office of Director of Audit, the Public Service Commission.
(8) The retiring age for holders of the offices mentioned in subsection (6) shall be 60 or such other age as may be prescribed:
Provided that a provision of any law, to the extent that it alters the age at which persons holding such offices shall vacate their offices, shall not have effect in relation to any such person after his appointment unless he consents to its having effect.
[Amended 48/91; 5/97; 31/00, 33/01]
94. Pension laws and protection of pension rights
(1) The law to be applied with respect to any pension benefits that were granted to any person before 12 March 1968 shall be the law that was in force at the date on which those benefits were granted or any law in force at a later date that is not less favourable to that person.
(2) The law to be applied with respect to any pension benefits (not being benefits to which subsection (1) applies) shall –
(a) in so far as those benefits are wholly in respect of a period of service as a public officer that commenced before 12 March 1968, be the law that was in force immediately before that date; and
(b) in so far as those benefits are wholly or partly in respect of a period of service as a public officer that commenced after 11 March 1968, be the law in force on the date on which that period of service commenced,or any law in force at a later date that is not less favourable to that person.
(3) Where a person is entitled to exercise an option as to which of 2 or more laws shall apply in his case, the law for which he opts shall, for the purposes of this section, be deemed to be more favourable to him than the other law or laws.
(4) All pensions benefits (except so far as they are a charge on some other fund and have been duly paid out of that fund to the person or authority to whom payment is due) shall be a charge on the Consolidated Fund.
(5) In this section, 'pensions benefits' means any pensions, compensation, gratuities or other like allowances for persons in respect of their service as public officers or for the widows, children, dependants or personal representatives of such persons in respect of such service.
(6) References in this section to the law with respect to pensions benefits include (without prejudice to their generality) references to the law regulating the circumstances in which such benefits may be granted or in which the grant of such benefits may be refused, the law regulating the circumstances in which any such benefits that have been granted may be withheld, reduced in amount or suspended and the law regulating the amount of any such benefits.
95. Power of Commissions in relation to pensions
(1) Where under any law any person or authority has a discretion –
(a) to decide whether or not any pensions benefits shall be granted; or
(b) to withhold, reduce in amount or suspend any such benefits that have been granted,
those benefits shall be granted and may not be withheld, reduced in amount or suspended unless the appropriate Commission concurs in the refusal to grant the benefits or, as the case may be, in the decision to withhold them, reduce them in amount or suspend them.
(2) Where the amount of any pensions benefits that may be granted to any person is not fixed by law, the amount of the benefits to be granted to him shall be the greatest amount for which he is eligible unless the appropriate Commission concurs in his being granted benefits of a smaller amount.
(3) The appropriate Commission shall not concur under subsection (1) or (2) in action taken on the ground that any person who holds or has held the office of Electoral Commissioner, Director of Public Prosecutions, Judge of the Supreme Court, Commissioner of Police, Ombudsman or Director of Audit has been guilty of misbehaviour unless he has been removed from office by reason of such misbehaviour.
(4) In this section, 'the appropriate Commission' means –
(a) in the case of benefits for which any person may be eligible in respect of the service in the public service of a person who, immediately before he ceased to be a public officer, was subject to the disciplinary control of the Judicial and Legal Service Commission or that have been granted in respect of such service, the Judicial and Legal Service Commission;
(b) in the case of benefits for which any person may be eligible in respect of the service in the public service of a person who, immediately before he ceased to be a public officer, was a member of a disciplined force, the Disciplined Forces Service Commission; and
(c) in any other case, the Public Service Commission.
(5) Any person who is entitled to the payment of any pensions benefits and who is ordinarily resident outside Mauritius may, within a reasonable time after he has received that payment, remit the whole of it (free from any deduction, charge or tax made or levied in respect of its remission) to any country of his choice outside Mauritius:
Provided that nothing in this subsection shall be construed as preventing –
(a) the attachment, by order of a court, of any payment or part of any payment 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 to the extent to which such attachment is permitted by the law with respect to pensions benefits that applies in the case of that person; or
(b) the imposition of reasonable restrictions as to the manner in which any payment is to be remitted.
(6) In this section, 'pensions benefits' means any pensions, compensation, gratuities or other like allowances for persons in respect of their service as public officers or for the widows, children, dependants or personal representatives of such persons in respect of such service.
[Amended 5/97]
96. Office of Ombudsman
(1) There shall be an Ombudsman, whose office shall be a public office.
(2) The Ombudsman shall be appointed by the President, acting after consultation with the Prime Minister, the Leader of the Opposition and such other persons, if any, as appear to the President, acting in his own deliberate judgment, to be leaders of parties in the Assembly.
(3) No person shall be qualified for appointment as Ombudsman if he is a member of, or a candidate for election to, the Assembly or any local authority or is a local government officer, and no person holding the office of Ombudsman shall perform the functions of any other public office.
(4) The offices of the staff of the Ombudsman shall be public offices and shall consist of that of a Senior Investigations Officer and such other offices as may be prescribed by the President, acting after consultation with the Prime Minister.
[Amended 48/91]
97. Investigations by Ombudsman
(1) Subject to this section, the Ombudsman may investigate any action taken by any officer or authority to which this section applies in the exercise of administrative functions of that officer or authority, in any case in which a member of the public claims, or appears to the Ombudsman, to have sustained injustice in consequence of maladministration in connection with the action so taken and in which –
(a) a complaint under this section is made;
(b) he is invited to do so by any Minister or other member of the Assembly; or
(c) he considers it desirable to do so of his own motion.
(2) This section applies to the following officers and authorities –
(a) any department of the Government;
(b) the Police Force or any member thereof;
(c) the Mauritius Prison Service or any other service maintained and controlled by the Government or any officer or authority of any such service;
(d) any authority empowered to determine the person with whom any contract or class of contracts is to be entered into by or on behalf of the Government or any such officer or authority;
(e) the Rodrigues Regional Assembly or any officer of the said Assembly;

    [Added 19/03]

(f)  any local authority or any officer of such local authority;

     [Added 19/03]

(g) such other officers or authorities as may be prescribed by Parliament:

Provided that it shall not apply in relation to any of the following officers and authorities –
(i) the President or his personal staff;
(ii) the Chief Justice;
(iii) any Commission established by this Constitution or its staff;
(iv) the Director of Public Prosecutions or any person acting in accordance with his instructions;
(v) any person exercising powers delegated to him by the Public Service Commission or the Disciplined Forces Service Commission, being powers the exercise of which is subject to review or confirmation by the Commission by which they were delegated.
(3) A complaint under this section may be made by an individual, or by any body of persons whether incorporated or not, not being –
(a) an authority of the Government or a local authority or other authority or body constituted for purposes of the public service or local government; or
(b) any other authority or body whose members are appointed by the President or by a Minister or whose revenues consist wholly or mainly of money provided from public funds.
(4) Where any person by whom a complaint might have been made under subsection (3) has died or is for any reason unable to act for himself, the complaint may be made by his personal representative or by a member of his family or other individual suitable to represent him; but except as specified in this subsection, a complaint shall not be entertained unless made by the person aggrieved himself.
(5) The Ombudsman shall not conduct an investigation in respect of any complaint under this section unless the person aggrieved is resident in Mauritius (or, if he is dead, was so resident at the time of his death) or the complaint relates to action taken in relation to him while he was present in Mauritius or in relation to rights or obligations that accrued or arose in Mauritius.
(6) The Ombudsman shall not conduct an investigation under this section in respect of any complaint under this section in so far as it relates to –
(a) any action in respect of which the person aggrieved has or had a right of appeal, reference or review to or before a tribunal constituted by or under any law in force in Mauritius; or
(b) any action in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law:
Provided that –
(i) the Ombudsman may conduct such an investigation notwithstanding that the person aggrieved has or had such a right or remedy if satisfied that in the particular circumstances it is not reasonable to expect him to avail himself or to have availed himself of that right or remedy; and
(ii) nothing in this subsection shall preclude the Ombudsman from conducting any investigation as to whether any of the provisions of Chapter II has been contravened.
(7) The Ombudsman shall not conduct an investigation in respect of any complaint made under this section in respect of any action if he is given notice in writing by the Prime Minister that the action was taken by a Minister in person in the exercise of his own deliberate judgment.
(8) The Ombudsman shall not conduct an investigation in respect of any complaint made under this section where it appears to him –
(a) that the complaint is merely frivolous or vexatious;
(b) that the subject-matter of the complaint is trivial;
(c) that the person aggrieved has no sufficient interest in the subject-matter of the complaint; or
(d) that the making of the complaint has, without reasonable cause, been delayed for more than 12 months.
(9) The Ombudsman shall not conduct an investigation under this section in respect of any matter where he is given notice by the Prime Minister that the investigation of that matter would not be in the interests of the security of Mauritius.
(10) In this section, 'action' includes failure to act.
[Amended 2/82; 48/91; 5/97]
98. Procedure in respect of investigations
(1) Where the Ombudsman proposes to conduct an investigation under section 97, he shall afford to the principal officer of any department or authority concerned, and to any other person who is alleged to have taken or authorised the action in question, an opportunity to comment on any allegations made to the Ombudsman in respect of it.
(2) Every such investigation shall be conducted in private but, except as provided in this Constitution or as prescribed under section 102, the procedure for conducting an investigation shall be such as the Ombudsman considers appropriate in the circumstances of the case; and without prejudice to subsection (1), the Ombudsman may obtain information from such persons and in such manner, and make such enquiries, as he thinks fit, and may determine whether any person may be represented, by counsel or attorney or otherwise, in the investigation.
99. Disclosure of information
(1) For the purposes of an investigation under section 97, the Ombudsman may require any Minister, officer or member of any department or authority concerned or any other person who in his opinion is able to furnish information or produce documents relevant to the investigation to furnish any such information or produce any such document.
(2) For the purposes of any such investigation, the Ombudsman 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.
(3) No obligation to maintain secrecy or other restriction upon the disclosure of information obtained by or furnished to persons in the public service imposed by any law in force in Mauritius or any rule of law shall apply to the disclosure of information for the purposes of any such investigation, and the State shall not be entitled in relation to any such investigation to any such privilege in respect of the production of documents or the giving of evidence as is allowed by law in legal proceedings.
(4) No person shall be required or authorised by virtue of this section to furnish any information or answer any question or produce any document relating to proceedings of the Cabinet or any committee of Cabinet, and for the purposes of this subsection, a certificate issued by the Secretary to the Cabinet with the approval of the Prime Minister and certifying that any information, question or document so relates shall be conclusive.
(5) The Attorney-General may give notice to the Ombudsman, with respect to any document or information specified in the notice, or any class of documents or information so specified, that in his opinion the disclosure of that document or information, or of documents or information of that class, would be contrary to the public interest in relation to defence, external relations or internal security; and where such a notice is given nothing in this section shall be construed as authorising or requiring the Ombudsman or any member of his staff to communicate to any person for any purpose any document or information specified in the notice, or any document or information of a class so specified.
(6) Subject to subsection (3), no person shall be compelled for the purposes of an investigation under section 97 to give any evidence or produce any document which he could not be compelled to give or produce in proceedings before the Supreme Court.
[Amended 48/91]
100.      Proceedings after investigation
(1) This section shall apply in every case where, after making an investigation, the Ombudsman is of the opinion that the action that was the subject-matter of investigation was –
(a) contrary to law;
(b) based wholly or partly on a mistake of law or fact;
(c) unreasonably delayed; or
(d) otherwise unjust or manifestly unreasonable.
(2) Where in any case to which this section applies the Ombudsman is of the opinion –
(a) that the matter should be given further consideration;
(b) that an omission should be rectified;
(c) that a decision should be cancelled, reversed or varied;
(d) that any practice on which the act, omission, decision or recommendation was based should be altered;
(e) that any law on which the act, omission, decision or recommendation was based should be reconsidered;
(f) that reasons should have been given for the decision; or
(g) that any other steps should be taken,
the Ombudsman shall report his opinion, and his reasons, to the principal officer of any department or authority concerned, and may make such recommendations as he thinks fit; he may request that officer to notify him, within a specified time, of any steps that it is proposed to take to give effect to his recommendations; and he shall also send a copy of his report and recommendations to the Prime Minister and to any Minister concerned.
(3) Where within a reasonable time after the report is made no action is taken which seems to the Ombudsman to be adequate and appropriate, the Ombudsman, if he thinks fit, after considering any comments made by or on behalf of any department, authority, body or person affected, may send a copy of the report and recommendations to the Prime Minister and to any Minister concerned, and may thereafter make such further report to the Assembly on the matter as he thinks fit.
101.      Discharge of functions of Ombudsman
(1) In the discharge of his functions, the Ombudsman shall not be subject to the direction or control of any other person or authority and no proceedings of the Ombudsman shall be called in question in any court of law.
(2) In determining whether to initiate, to continue or discontinue an investigation under section 97, the Ombudsman shall act in accordance with his own discretion, and any question whether a complaint is duly made for the purposes of that section shall be determined by the Ombudsman.
(3) The Ombudsman shall make an annual report to the President concerning the discharge of his functions, which shall be laid before the Assembly.
[Amended 48/91; 31/00]
102.      Supplementary and ancillary provision
There shall be such provision as may be prescribed for such supplementary and ancillary matters as may appear necessary or expedient in consequence of any of the provisions of this Chapter, including (without prejudice to the generality of the foregoing power) provision –
(a) for the procedure to be observed by the Ombudsman in performing his functions;
(b) for the manner in which complaints under section 97 may be made (including a requirement that such complaints should be transmitted to the Ombudsman through the intermediary of a member of the Assembly);
(c) for the payment of fees in respect of any complaint or investigation;
(d) for the powers, protection and privileges of the Ombudsman and his staff or of other persons or authorities with respect to any investigation or report by the Ombudsman, including the privilege of communications to and from the Ombudsman and his staff; and
(e) the definition and trial of offences connected with the functions of the Ombudsman and his staff and the imposition of penalties for such offences.