Section 5: Protection of right to personal liberty

5. Protection of right to personal liberty (1) No person shall be deprived of his personal liberty save as may be authorised by law— (a) in consequence of his unfitness to plead to a criminal charge or in execution of the sentence or order of a Court, whether in Mauritius or elsewhere, in respect of a criminal offence of which he has been convicted; (b) in execution of the order of a Court punishing him for contempt of that Court or of another Court; (c) in execution of the order of a Court made to secure the fulfilment of any obligation imposed on him by law; (d) for the purpose of bringing him before a Court in execution of the order of a Court; (e) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence; (f) in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare; (g) for the purpose of preventing the spread of an infectious or contagious disease; (h) in the case of a person who is, or is reasonably suspected to be, of unsound mind or addicted to drugs or alcohol, for the purpose of his care or treatment or the protection of the community; (i) for the purpose of preventing the unlawful entry of that person into Mauritius, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Mauritius or the taking of proceedings relating thereto; (j) upon reasonable suspicion of his being likely to commit breaches of the peace; or (k) in execution of the order of the Commissioner of Police, upon reasonable suspicion of his having engaged in, or being about to engage in, activities likely to cause a serious threat to public safety or public order. (2) Any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he understands, of the reasons for his arrest or detention. (3) Any person who is arrested or detained— (a) for the purpose of bringing him before a Court in execution of the order of a Court; (b) upon reasonable suspicion of his having committed, or being about to commit a criminal offence; or (c) upon reasonable suspicion of his being likely to commit breaches of the peace, CON – 5 [Issue 1] The Constitution and who is not released, shall be afforded reasonable facilities to consult a legal representative of his own choice and shall be brought without undue delay before a Court; and if any person arrested or detained as mentioned in paragraph (b) is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including, in particular, such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial; and if any person arrested or detained as mentioned in paragraph (c) is not brought before a Court within a reasonable time in order that the Court may decide whether to order him to give security for his good behaviour, then, without prejudice to any further proceedings that may be brought against him, he shall be released unconditionally. (3A) (a) Notwithstanding subsection (3), where a person is arrested or detained for an offence related to terrorism or a drug offence, he shall not, in relation to such offences related to terrorism or drug offences as may be prescribed by an Act of Parliament, be admitted to bail until the final determination of the pr er to order him to give security for his good behaviour, then, without prejudice to any further proceedings that may be brought against him, he shall be released unconditionally. (3A) (a) Notwithstanding subsection (3), where a person is arrested or detained for an offence related to terrorism or a drug offence, he shall not, in relation to such offences related to terrorism or drug offences as may be prescribed by an Act of Parliament, be admitted to bail until the final determination of the proceedings brought against him, where— (i) he has already been convicted of an offence related to terrorism or a drug offence; or (ii) he is arrested or detained for an offence related to terrorism or a drug offence during the period that he has been released on bail after he has been charged with having committed an offence related to terrorism or a drug offence. (b) A Bill for an Act of Parliament to prescribe the offences related to terrorism or drug offences under paragraph (a) or to amend or repeal such an Act shall not be passed by the Assembly unless it is supported at the final voting in the Assembly by the votes of not less than three quarters of all the members of the Assembly. [EDITORIAL NOTE: The Judicial Committee of the Privy Council has, in State v Khoyratty (2006) MR 210, declared section 5 (3A) of the Constitution void.] (4) Where a person is detained in pursuance of any such provision of law as is referred to in subsection (1) (k)— (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 7 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; (c) not more than 14 days after the commencement of his detention and thereafter during his detention at intervals of not more than 30 days, 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; [Issue 1] CON – 6 Revised Laws of 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 his case; (e) at the hearing of his case by the tribunal, he shall be permitted to appear in person or by a legal representative of his own choice and, unless the tribunal otherwise directs, the hearing shall be held in public; (f) at the conclusion of any review by a tribunal in pursuance of this subsection in any case, the tribunal shall announce its decision in public, stating whether or not there is, in its opinion, sufficient cause for the detention, and if, in its opinion, there is not sufficient cause, the detained person shall forthwith be released and if during the period of 6 months from his release he is again detained the tribunal established for the review of his case shall not decide that, in its opinion, there is sufficient cause for the further detention unless it is satisfied that new and reasonable grounds for the detention exist. on in public, stating whether or not there is, in its opinion, sufficient cause for the detention, and if, in its opinion, there is not sufficient cause, the detained person shall forthwith be released and if during the period of 6 months from his release he is again detained the tribunal established for the review of his case shall not decide that, in its opinion, there is sufficient cause for the further detention unless it is satisfied that new and reasonable grounds for the detention exist. (5) Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation from that other person. (6) In the exercise of any functions conferred upon him for the purposes of subsection (1) (k), the Commissioner of Police shall not be subject to the direction or control of any other person or authority. (7) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (3) to the extent that the law in question authorises a police officer not below the rank of Superintendent of Police to direct that any person arrested upon reasonable suspicion of having committed any offence related to terrorism or any drug dealing offence be detained in police custody for a period not exceeding 36 hours from his arrest without having access to any person other than a police officer not below the rank of Inspector or a Government Medical Officer. (8) A Bill for an Act of Parliament to amend or to repeal the provisions of any law with regard to the keeping of a custody record and video recording in respect of the detention of any person for a drug offence shall not be passed by the Assembly unless it is supported at the final voting in the Assembly by the votes of not less than three quarters of all the members of the Assembly. [S. 5 amended by Act 26 of 1994; Act 40 of 2000; s. 2 of Act 4 of 2002.]