CHAPTER VII - THE JUDICATURE

Return to: Government and the Constitution

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

judgement, 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 judgement 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 judgement.

(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]