Mauritius 1968 Constitution (reviewed 2016) - Page 8 of 15

Table of Contents

CHAPTER VIII. SERVICE COMMISSIONS AND THE PUBLIC SERVICE

85. Judicial and Legal Service Commission

There shall be a judicial and Legal Service Commission which shall consist of the Chief Justice, who shall be chairman, and the following members
1. the Senior Puisne Judge;
2. the chairman of the Public Service Commission; and
3. 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.
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.
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.

86. Appointment of judicial and legal officers

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.
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
1. where the name of any such office is changed, or any such office is abolished, this section and that Schedule shall have effect accordingly;
2. 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.

88. Public Service Commission

There shall a Public Service Commission, which shall consist of 2 Deputy Chairmen and 4 other Commissioners appointed by the President.
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.
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.
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.
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.

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

1. The Public Service Commission may, subject to such conditions as it thinks fit, delegates any of its powers under this section by directions in writing to any Commissioner of the Commission, or to any public officer.
2. 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
  1. 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;
  2. 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.
This section shall not apply to
1. the office of Chief Justice or Senior Puisne Judge;
2. except for the purpose of making appointments thereto or to act therein, the office of Director of Audit ;
3. the office of Ombudsman;
4. any office, appointments to which are within the functions of the Judicial and Legal Service Commission or the Police Service Commission;
5. any office to which section 87 applies;
6. any ecclesiastical office;
7. Repealed by [Act No. 5 of 1997]
8. 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.
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.
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.
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 Police Service Commission, the Public Service Commission shall consult that Commission.
Before making any appointment to any office on the staff of the Ombudsman, the Public Service Commission shall consult the Ombudsman.
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.
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.

90. Disciplined Forces Service Commission

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 other Commissioners who shall be appointed by the President.
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.
Where at any time there are less 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.
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.

91. Appointment in the Disciplined Forces

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 the 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.
The Disciplined Forces Commission may, subject to such conditions as it thinks fit, by directions in writing delegate any of its powers of discipline, 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.

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 –
  1. a Chairperson who is a barrister of not less than 10 years’ standing;
  2. 2 other members who hold such qualifications as may be prescribed.

5

1. The members of the Public Bodies Appeal Tribunal shall be appointed by the President on the advice of the Prime Minister, given after consultation with the Leader of the Opposition.
2. 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.
No person shall be appointed under subsection (5) where –
1. he is a member of the Assembly or a local authority;
2. he is an office bearer of a political party or other political organisation;
3. at any time during the 10 years preceding such proposed appointment, he was engaged in politics;
4. he is a public officer, a local government officer or an employee of a statutory body; or
5. he is a person who receives, or is entitled to receive, fees or allowances specified in section 112(3).
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.
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.
Notwithstanding any other provision of the Constitution –
1. 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;
2. 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.
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.
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).
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.
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 –
1. 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
2. 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.
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.
The offices of the staff of the Public Bodies Appeal Tribunal shall be public offices.
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.

92. Tenure of office of members of Commissions and the Ombudsman

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”)
1. subject to paragraph (b), shall vacate his office
  1. at the expiration of 3 years from the date of his appointment; or
  2. where any circumstances arise that, if he did not hold that office, would cause him to be disqualified for appointment;
2. 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.
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.
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.
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.
Where the President, acting in his own deliberate judgment, considers that the question of removing a Commissioner ought to be investigated
1. 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
2. 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.
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 anytime 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.
The offices to which this section applies are those of appointed member of the judicial and Legal Service Commission chairman or Commission of the Public Service Commission and Commissioner of the Disciplined Forces.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.
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”.

93. Removal of certain officers

Subject to this section, a person holding an office to which this section applies shall vacate that office on attaining the retiring age.
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.
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.
Where the appropriate Commission considers that the question of removing any such person ought to be investigated
1. 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
2. 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.
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.
The offices to which this section applies, are those of Electoral Commissioner, Director of Public Prosecutions, Commissioner of Police and Director of Audit.
In this section ‘the appropriate Commission’ means
1. in relation to a person holding the office of Electoral Commissioner or Director of Public Prosecutions, the Judicial and Legal Service Commission;
2. in relation to a person holding the office of Commissioner of Police, the Disciplined Forces Service Commission;
3. in relation to a person holding the office of Director of Audit, the Public Service Commission.
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.

94. Pension laws and protection of pension rights

The law to be applied with respect to any pensions 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.
The law to be applied with respect to any pensions benefits (not being benefits to which subsection (1) applies) shall
1. 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
2. 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.
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.
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.
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, dependents or personal representatives of such persons in respect of such service.
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

Where under any law any person or authority has a discretion
1. to decide whether or not any pensions benefits shall be granted; or
2. 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.
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.
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.
In this section, ‘the appropriate Commission’ means
1. 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;
2. 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
3. in any other case, the Public Service Commission.
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 –
1. 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
2. the imposition of reasonable restrictions as to the manner in which any payment is to be remitted.
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, dependents or personal representatives of such persons in respect of such service.