Section 168: Constitutionality of section 9 (1) and (3) of the Public Order Act—The

168. Constitutionality of section 9 (1) and (3) of the Public Order Act—The accused and several other persons were prosecuted before the District Court of Grand Port for having, contrary to section 9 (3) of the Public Order Act, 1970 (now Public Gatherings Act), taken part in the promotion of a public gathering in contravention of a prohibition order made by the Commissioner of Police under section 9 (1) of the Act. The trial Court referred the matter to the Supreme Court for a decision on the questions— (a) are sections 9 (1) and 9 (3) of the Public Order Act, 1970, under which the accused are prosecuted ultra vires the Constitution? and (b) was the decision of the Commissioner of Police to prohibit the meeting to be held by the accused arbitrary and ultra vires the Constitution? HELD (i) if the section had given to the Commissioner of Police an unfettered discretion to control the right of assembly it would have been unconstitutional but such was not the case as his discretion was a limited one; (ii) question (b) depended primarily on a question of fact which it was for the trial Court to decide. Police v Moorba (1971). [Issue 1] CON – 210 Revised Laws of Mauritius