Section 18: Derogations from fundamental rights and freedoms under emergency

18. Derogations from fundamental rights and freedoms under emergency powers (1) Nothing contained in or done under the authority of a law shall be held to be inconsistent with or in contravention of section 5 or section 16 to the extent that the law authorises the taking during any period of public emergency of measures that are reasonably justifiable for dealing with the situation that exists in Mauritius during that period: CON – 19 [Issue 1] The Constitution Provided that no law, to the extent that it authorises the taking during a period of public emergency, other than a period during which Mauritius is at war, of measures that would be inconsistent with or in contravention of section 5 or section 16 if taken otherwise than during a period of public emergency, shall have effect unless there is in force a Proclamation of the President declaring that, because of the situation existing at the time, the measures authorised by the law are required in the interests of peace, order and good government. (2) A Proclamation made by the President for the purposes of this section— (a) shall, when the Assembly is sitting or when arrangements have already been made for it to meet within 7 days of the date of the Proclamation, lapse unless within 7 days the Assembly by resolution approves the Proclamation; (b) shall, when the Assembly is not sitting and no arrangements have been made for it to meet within 7 days, lapse unless within 21 days it meets and approves the Proclamation by resolution; (c) shall, if approved by resolution, remain in force for such period, not exceeding 6 months, as the Assembly may specify in the resolution; (d) may be extended in operation for further periods not exceeding 6 months at a time by resolution of the Assembly; (e) may be revoked at any time by the President, or by resolution of the Assembly: Provided that no resolution for the purposes of paragraph (a), (b), (c) or (d) shall be passed unless it is supported by the votes of at least two thirds of all the members of the Assembly. (3) Where a person is detained by virtue of any such law as is referred to in subsection (1) (not being a person who is detained because he is a person who, not being a citizen of Mauritius, is a citizen of a country with which Mauritius is at war, or has been engaged in hostilities against Mauritius in association with or on behalf of such a country or otherwise assisting or adhering to such a country)— (a) he shall, as soon as is reasonably practicable and in any case not more than 7 days after the commencement of his detention, be furnished with a statement in writing in a language that he understands, specifying in detail the grounds upon which he is detained; (b) not more than 14 days after the commencement of his detention, a notification shall be published in the Gazette stating that he has been detained and giving particulars of the provision of law under which his detention is authorised; [Issue 1] CON – 20 Revised Laws of Mauritius (c) not more than one month after the commencement of his detention and thereafter during his detention at intervals of not more than 6 months, his case shall be reviewed by an independent and impartial tribunal consisting of a Chairperson and 2 other members appointed by the Judicial and Legal Service Commission, the Chairperson being appointed from among persons who are entitled to practise as a barrister or as an attorney in Mauritius; (d) he shall be afforded reasonable facilities to consult a l not more than one month after the commencement of his detention and thereafter during his detention at intervals of not more than 6 months, his case shall be reviewed by an independent and impartial tribunal consisting of a Chairperson and 2 other members appointed by the Judicial and Legal Service Commission, the Chairperson being appointed from among persons who are entitled to practise as a barrister or as an attorney in Mauritius; (d) he shall be afforded reasonable facilities to consult a legal representative of his own choice who shall be permitted to make representations to the tribunal appointed for the review of the case of the detained person; and (e) at the hearing of his case by the tribunal appointed for the review of his case, he shall be permitted to appear in person or by a legal representative of his own choice. (4) On any review by a tribunal in pursuance of this section of the case of a detained person, the tribunal may make recommendations concerning the necessity or expediency of continuing his detention to the authority by which it was ordered but, unless it is otherwise provided by law, that authority shall not be obliged to act in accordance with any such recommendations. [S. 18 amended by Act 48 of 1991.]