CHAPTER VIII - SERVICE COMMISSIONS AND THE PUBLIC SERVICE

return to: Government and the Constitution

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]

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 Police 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 Police 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

judgement.

(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]

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]

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.

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 judgement, considers that the

question of removing a Commissioner ought to be investigated -

(a)

the President, acting in his own deliberate judgement, 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 judgement, 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 judgement, 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 judgement" 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]

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) s

the President, acting in his own deliberate judgement, 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 judgement, 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 judgement, 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]

94 Pension laws and protection of pension rights

(1)

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.

(2)

The law to be applied with respect to any pensions 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 judgement 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.