CHAPTER VI - THE EXECUTIVE

Return to: Government and the Constitution

58 Executive authority of Mauritius

(1)

The executive authority of Mauritius is vested in the President.

(2)

Except as otherwise provided in this Constitution, that authority may be exercised

by the President either directly or through officers subordinate to him.

(3)

Nothing in this section shall preclude persons or authorities, other than the

President, from exercising such functions as may be conferred upon them by any law.

[Amended 48/91]

59 Ministers

(1)

There shall be a Prime Minister and a Deputy Prime Minister who shall be

appointed by the President.

(2)

There shall be, in addition to the offices of Prime Minister, Deputy Prime

Minister and Attorney-General, such other offices of Minister of the Government as may be

prescribed by Parliament or, subject to any law, established by the President, acting in

accordance with the advice of the Prime Minister

Provided that the number of offices of Minister, other than the Prime Minister, shall

not be more than 24.

(3)

The President, acting in his own deliberate judgement, shall appoint as Prime

Minister the member of the Assembly who appears to him best able to command the support of

the majority of the members of the Assembly, and shall, acting in accordance with the advice of

the Prime Minister, appoint the Deputy Prime Minister, the Attorney-General and the other

Ministers from among the members of the Assembly.

Provided that -

(a)

where occasion arises for making an appointment while Parliament is

dissolved, a person who was a member of the Assembly immediately before

the dissolution may be appointed; and

(b)

a person may be appointed Attorney-General, notwithstanding that he is not

(or, as the case may be, was not) a member of the Assembly.

[Amended 2/82; 37/91; 48/91]

60 Tenure of office of Ministers

(1)

Where a resolution of no confidence in the government is passed by the Assembly

and the Prime Minister does not within 3 days resign from his office, the President shall

remove the Prime Minister from office unless, in pursuance of section 57 (1), Parliament has

been or is to be dissolved in consequence of such resolution.

(2)

Where at any time between the holding of a general election and the first sitting of

the Assembly thereafter the President, acting in his own deliberate judgement, considers that, in

consequence of changes in the membership of the Assembly resulting from that general

election, the Prime Minister will not be able to command the support of a majority of the

members of the Assembly, the President may remove the Prime Minister from office

Provided that the President shall not remove the Prime Minister from office within the

period of 10 days immediately following the date prescribed for polling at that general election

unless he is satisfied that a party or party alliance in opposition to the Government and

registered for the purposes of that general election under paragraph 2 of the First Schedule has

at that general election gained a majority of all seats in the Assembly.

(3)

The office of Prime Minister or any other Minister shall become vacant -

(a)

where he ceases to be a member of the Assembly otherwise than by reason of

a dissolution of Parliament; or

(b)

where, at the first sitting of the Assembly after any general election, he is not

a member of the Assembly

Provided that paragraph (b) shall not apply to the office of Attorney-General where the

holder thereof was not a member of the Assembly on the preceding dissolution of Parliament.

(4)

The office of a Minister (other than the Prime Minister) shall become vacant -

(a)

where the President, acting in accordance with the advice of the Prime

Minister, so directs;

(b)

where the Prime Minister resigns from office within 3 days after the passage

by the Assembly of a resolution of no confidence in the Government or is

removed from office under subsection (1) or (2); or

(c)

upon the appointment of any person to the office of Prime Minister.

(5)

Where for any period the Prime Minister or any other Minister is unable by

reason of section 36 (1) to perform his functions as a member of the Assembly, he shall not

during that period perform any of his functions as Prime Minister or Minister, as the case

may be.

[Amended 2/82; 48/91]

61 The Cabinet

(1)

There shall be a Cabinet for Mauritius consisting of the Prime Minister and the

other Ministers.

(2)

The functions of the Cabinet shall be to advise the President in the Government of

Mauritius and the Cabinet shall be collectively responsible to the Assembly for any advice

given to the President by or under the general authority of the Cabinet and for all things done

by or under the authority of any Minister in execution of his office.

(3)

Subsection (2) shall not apply in relation to -

(a)

the appointment and removal from office of Ministers and Junior Ministers,

the assigning of responsibility to any Minister under section 62, or the

authorisation of another Minister to perform the functions of the Prime

Minister during absence or illness;

(b)

the dissolution of Parliament; or

(c)

the matters referred to in section 75.

[Amended 2/82; 48/91; 3/96]

62 Assignment of responsibilities to Ministers

The President, acting in accordance with the advice of the Prime Minister, may, by

directions in writing, assign to the Prime Minister or any other Minister responsibility for the

conduct (subject to this Constitution and any other law) of any business of the Government,

including responsibility for the administration of any department of Government.

[Amended 48/91; 3/96]

63 Performance of functions of Prime Minister during absence or illness

(1)

Where the Prime Minister is absent from Mauritius or is by reason of illness or of

section 60 (5) unable to perform the functions conferred on him by this Constitution, the

President may, by directions in writing, authorise the Deputy Prime Minister or, in his absence,

some other Minister to perform those functions (other than the functions conferred by this

section) and that Minister may perform those functions until his authority is revoked by the

President.

(2)

The powers of the President under this section shall be exercised by him in

accordance with the advice of the Prime Minister

Provided that where the President, acting in his own deliberate judgement, considers

that it is impracticable to obtain the advice of the Prime Minister owing to the Prime Minister's

absence or illness, or where the Prime Minister is unable to tender advice by reason of section

60 (5), the President may exercise those powers without that advice and in his own deliberate

judgement.

[Amended 2/82; 48/91]

64 Exercise of President's functions

(1)

In the exercise of his functions under this Constitution or any other law, the

President shall act in accordance with the advice of the Cabinet or of a Minister acting under

the general authority of the Cabinet except in cases where he is required by this Constitution to

act in accordance with the advice of, or after consultation with, any person or authority other

than the Cabinet or in his own deliberate judgement.

(2)

The President may request the Cabinet to reconsider any advice tendered by it and

shall act in accordance with such advice as may be tendered by the Cabinet after such

reconsideration.

(3)

Where the President so requests, the Prime Minister shall submit for the

consideration of the Cabinet any matter on which a policy decision has been taken by a

Minister but which has not been considered by the Cabinet.

(4)

Where the President is directed by this Constitution to exercise any function after

consultation with any person or authority other than the Cabinet, he shall not be obliged to

exercise that function in accordance with the advice of that person or authority.

(5)

(a)

Subject to paragraphs (b) and (c), where the President is required by this

Constitution to act in accordance with the advice of or after consultation with

any person or authority, the question whether in fact he has so acted shall not

be called in question in any court of law.

(b)

Where the President dissolves Parliament otherwise than under the proviso to

section 57, the Prime Minister, may by motion, request the Supreme Court to

enquire into the decision.

(c)

Upon the hearing of a motion under paragraph (b), the Supreme Court shall

determine whether or not the President has acted in accordance with the

advice, of the Prime Minister and where the Supreme Court declares that the

President has not acted in accordance with such advice the dissolution of the

Parliament shall, subject to section 57 (2), have no effect.

(6)

During any period in which the office of Leader of the Opposition is vacant by

reason that there is no such opposition party as is referred to in section 73 (2) (a) and the

President, acting in his own deliberate judgement, is of the opinion that no member of the

Assembly would be acceptable to the leaders of the opposition parties for the purposes of

section 73 (2) (b) or by reason that there are no opposition parties for the purposes of that

section, the operation of any provision of this Constitution shall, to the extent that it requires

the President, the Prime Minister or the Public Service Commission to consult the Leader of

the Opposition, be suspended.

[Amended 48/91]

65 President to be kept informed

The Prime Minister shall keep the President fully informed concerning the general

conduct of the Government of Mauritius and shall furnish the President with such information

as he may request with respect to any particular matter relating to the Government of Mauritius.

[Amended 48/91]

66 Junior Ministers

(1)

Subject to this section, the President, acting in accordance with the advice of the

Prime Minister, may appoint Junior Ministers from among the members of the Assembly to

assist Ministers in the performance of their duties.

(2)

The number of Junior Ministers shall not exceed 10.

(3)

Where occasion arises for making appointments while the Assembly is dissolved,

a person who was a member of the Assembly immediately before the dissolution may be

appointed as a Junior Minister.

(4)

The office of a Junior Minister shall become vacant -

(a)

where the President, acting in accordance with the advice of the Prime

Minister, so directs;

(b)

where the Prime Minister resigns from office within 3 days after the passage

by the Assembly of a resolution of no confidence in the Government or is

removed from office under section 60(1) or (2);

(c)

upon the appointment of a person to the office of Prime Minister;

(d)

where the holder of the office ceases to be a member of the Assembly

otherwise than by reason of a dissolution of Parliament; or

(e)

where at the first sitting of the Assembly after any election, the holder of the

office is not a member of the Assembly.

(5)

Where for any period a Junior Minister is unable by reason of section 36(1) to

perform his functions as a Member of the Assembly, he shall not during that period perform

any of his functions as a Junior Minister.

[Added 3/96]

67 Oaths to be taken by Ministers and Junior Ministers

A Minister or a Junior Minister 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.

[Amended 2/82; 3/96]

68 Direction of Government departments

Where any Minister has been charged with responsibility for the administration of any

department of Government, he shall exercise general direction and control over that department

and, subject to such direction and control, any department in the charge of a Minister

(including the office of the Prime Minister or any other Minister) shall be under the supervision

of a Permanent Secretary or of some other supervising officer whose office shall be a public

office

Provided that -

(a)

any such department may be under the joint supervision of 2 or more

supervising officers; and

(b)

different parts of any such department may respectively be under the

supervision of different supervising officers.

69 Attorney-General

(1)

There shall be an Attorney-General who shall be principal legal adviser to the

Government of Mauritius.

(2)

The office of Attorney-General shall be the office of a Minister.

(3)

No person shall be qualified to hold the office of Attorney-General unless he is

entitled to practise as a barrister in Mauritius, and no person who is not a member of the

Assembly shall be qualified to hold the office if he is for any cause disqualified from

membership of the Assembly

Provided that a person may hold the office of Attorney-General notwithstanding that he

holds or is acting in a public office (not being the office of Director of Public Prosecutions).

(4)

Where the person holding the office of Attorney-General is not a member of the

Assembly, he shall be entitled to take part in the proceedings of the Assembly, and this

Constitution and any other law shall apply to him as if he were a member of the Assembly

Provided that he shall not be entitled to vote in the Assembly.

(5)

Where the person holding the office of Attorney-General is for any reason unable

to exercise the functions conferred upon him by or under any law, those functions may be

exercised by such other person, being a person entitled to practise as a barrister in Mauritius

(whether or not he is a member of the Assembly), as the President, acting in accordance with

the advice of the Prime Minister, may direct.

[Amended 48/91]

70 Secretary to the Cabinet

(1)

There shall be a Secretary to the Cabinet whose office shall be a public office.

(2)

The Secretary to the Cabinet shall be responsible, in accordance with such

instructions as may be given to him by the Prime Minister, for arranging the business for, and

keeping the minutes of, the Cabinet or any of its committees and for conveying the decisions of

the Cabinet or any of its committees to the appropriate person or authority, and shall have such

other functions as the Prime Minister may direct.

71 Commissioner of Police

(1)

There shall be a Commissioner of Police whose office shall be a public office.

(2)

The Police Force shall be under the command of the Commissioner of Police.

(3)

The Prime Minister, or such other Minister as may be authorised in that behalf by

the Prime Minister, may give to the Commissioner of Police such general directions of policy

with respect to the maintenance of public safety and public order as he may consider necessary

and the Commissioner shall comply with such directions or cause them to be complied with.

(4)

Nothing in this section shall be construed as precluding the assignment to a

Minister of responsibility under section 62 for the organisation, maintenance and

administration of the Police Force, but the Commissioner of Police shall be responsible for

determining the use and controlling the operations of the force and, except as provided in

subsection (3), the Commissioner shall not, in the exercise of his responsibilities and powers

with respect to the use and operational control of the force, be subject to the direction or

control of any person or authority.

72 Director of Public Prosecutions

(1)

There shall be a Director of Public Prosecutions whose office shall be a public

office and who shall be appointed by the Judicial and Legal Service Commission.

(2)

No person shall be qualified to hold or act in the office of Director or Public

Prosecutions unless he is qualified for appointment as a Judge of the Supreme Court.

(3)

The Director of Public Prosecutions shall have power in any case in which he

considers it desirable so to do -

(a)

to institute and undertake criminal proceedings before any court of law (not

being a court established by a disciplinary law);

(b)

to take over and continue any such criminal proceedings that may have been

instituted by any other person or authority; and

(c)

to discontinue at any stage before judgement is delivered any such criminal

proceedings instituted or undertaken by himself or any other person or

authority.

(4)

The powers of the Director of Public Prosecutions under subsection (3) may be

exercised by him in person or through other persons acting in accordance with his general or

specific instructions.

(5)

The powers conferred upon the Director of Public Prosecutions by subsection (3)

(b) and (c) shall be vested in him to the exclusion of any other person or authority

Provided that, where any other person or authority has instituted criminal proceedings,

nothing in this subsection shall prevent the withdrawal of those proceedings by or at the

instance of that person or authority at any stage before the person against whom the

proceedings have been instituted has been charged before the court.

(6)

In the exercise of the powers conferred upon him by this section, the Director of

Public Prosecutions shall not be subject to the direction or control of any other person or

authority.

(7)

For the purposes of this section, any appeal from any determination in any

criminal proceedings before any court, or any case stated or question of law reserved for the

purposes of any such proceedings to any other court, shall be deemed to be part of those

proceedings

Provided that the power conferred on the Director of Public Prosecutions by

subsection (3) (c) shall not be exercised in relation to any appeal by a person convicted in any

criminal proceedings or to any case stated or question of law reserved except at the instance of

such a person.

73 Leader of Opposition

(1)

There shall be a Leader of the Opposition who shall be appointed by the

President.

(2)

Where the President has occasion to appoint a Leader of the Opposition, he shall

in his own deliberate judgement appoint -

(a)

where there is one opposition party whose numerical strength in the

Assembly is greater than the strength of any other opposition party, the

member of the Assembly who is the leader in the Assembly of that party; or

(b)

where there is no such party, the member of the Assembly whose appointment

would, in the judgement of the President, be most acceptable to the leaders in

the Assembly of the opposition parties

Provided that, where occasion arises for making an appointment while Parliament is

dissolved, a person who was a member of the Assembly immediately before the dissolution may

be appointed Leader of the Opposition.

(3)

The office of the Leader of the Opposition shall become vacant -

(a)

where, after any general election, he is informed by the President that the

President is about to appoint another person as Leader of the Opposition;

(b)

where, under section 36 (1), he is required to cease to perform his functions

as a member of the Assembly;

(c)

where he ceases to be a member of the Assembly otherwise than by reason of

a dissolution of Parliament;

(d)

where, at the first sitting of the Assembly after any general election, he is not

a member of the Assembly; or

(e)

where his appointment is revoked under subsection (4).

(4)

Where the President, acting in his own deliberate judgement, considers that a

member of the Assembly, other than the Leader of the Opposition, has become the leader in the

Assembly of the opposition party having the greatest numerical strength in the Assembly or, as

the case may be, the Leader of the Opposition is no longer acceptable as such to the leaders of

the opposition parties in the Assembly, the President may revoke the appointment of the Leader

of the Opposition.

(5)

For the purposes of this section, "opposition party'' means a group of members of

the Assembly whose number includes a leader who commands their support in opposition to

the Government.

[Amended 2/82; 48/91]

74 Constitution of offices

Subject to this Constitution and any other law, the President may constitute offices for

Mauritius, make appointments to any such office and terminate any such appointment.

[Amended 48/91]

75 Prerogative of mercy

(1)

The President may -

(a)

grant to any person convicted of any offence a pardon, either free or subject

to lawful conditions;

(b)

grant to any person a respite, either indefinite or for a specified period, of the

execution of any punishment imposed on that person for any offence;

(c)

substitute a less severe form of punishment for any punishment imposed on

any person for any offence; or

(d)

remit the whole or part of any punishment imposed on any person for an

offence or of any penalty or forfeiture otherwise due to the State on account

of any offence.

(2)

There shall be a Commission on the Prerogative of Mercy (referred to in this

section as "the Commission'') consisting of a chairman and not less that 2 other members

appointed by the President, acting in his own deliberate judgement.

(3)

A member of the Commission shall vacate his seat on the Commission -

(a)

at the expiration of any term of appointment specified in the instrument of his

appointment; or

(b)

where his appointment is revoked by the President, acting in his own

deliberate judgement.

(4)

In the exercise of the powers conferred upon him by subsection (1), the President

shall act in accordance with the advice of the Commission.

(5)

The validity of the transaction of business by the Commission shall not be

affected by the fact that some person who was not entitled to do so took part in the

proceedings.

(6)

Where any person has been sentenced to death (otherwise than by a court martial)

for an offence, a report on the case by the judge who presided at the trial (or, where a report

cannot be obtained from that judge, a report on the case by the Chief Justice), together with

such other information derived from the record of the case or elsewhere as may be required by

or furnished to the Commission shall be taken into consideration at a meeting of the

Commission which shall then advise the President whether or not to exercise his powers under

subsection (1) in that case.

(7)

This section shall not apply in relation to any conviction by a court established

under the law of a country other than Mauritius that has jurisdiction in Mauritius in pursuance

of arrangements made between the Government of Mauritius and another government or an

international organisation relating to the presence in Mauritius of members of the armed forces

of that other country or in relation to any punishment imposed in respect of any such conviction

or any penalty or forfeiture resulting from any such conviction.

[Amended 48/91]