Constitutionality of the Regulations/Order adopted to combat COVID-19 in Mauritius

Ashwanee Budoo
LLB, LLM, LLD
Program Manager: LLM/MPhil Human Rights and Democratisation in Africa
Centre for Human Rights, University of Pretoria

Background

Mauritius is an Indian Ocean Island with a population of about 1.2 million. Similar to many countries around the world, this island has also come to a standstill due to the coronavirus (Covid 19) pandemic. On 23 April 2020, the country has recorded a total number of 331 infections, with 9 deaths and 53 cases still being active. The first case was recorded on 18 March 2020 and as the current figures demonstrate, the government has taken several measures to ensure that there is a minimal spread of the virus.

A previous blog article with the view of assessing the human rights dimensions of the Covid 19 measures in Mauritius elaborates on the steps taken by the government to combat the virus, the most pertinent of which is the Quarantine (Quarantinable Diseases) Regulations under the Quarantine Act, the Prevention and Mitigation of Infectious Disease (Coronavirus) Regulations and a Curfew Order under the same. The objectives of these Regulations/Order were to, amongst other things, close Mauritius’ borders, quarantine persons who have potentially contracted the virus and to trigger the country into lockdown to ensure that the virus does not spread any further.

The above measures have a direct effect on different human rights, whether they are protected by the Constitution or not. Since the previous blog article has already elaborated on the different human rights being affected by the Covid 19 measures in Mauritius, this contribution is restricted to an analysis of whether the Regulations/Order adopted by the Minister of Health and Wellness are constitutional. The reason for this focus is that currently there are several debates in Mauritius concerning the constitutionality of the Covid 19 measures adopted.

This article first elaborates on the freedom of movement and freedom of assembly in the Constitution. The reason for focusing on these two rights is that the initial Regulations/Order were adopted with the view of restricting people from moving and assembling, and these restrictions are having a domino effect on the other rights in the Constitution. Second, the article analyses whether Regulations/Order can limit rights in the Constitution of Mauritius. Third, it provides for a conclusion and recommendations.
Freedom of movement and freedom of assembly in the Constitution

Due to the Covid 19 measures adopted in Mauritius, except for those working in essential services, nobody is allowed to move around unless it is to buy groceries in alphabetical order on certain days of the week. Mauritius has further closed its borders, except for cargo, with Mauritians being stranded in different countries of the world. Additionally, there are restrictions on the number of people who can gather in one place at one time. These measures limit the freedom of movement and freedom of assembly protect by the Constitution of Mauritius.

Section 13(1) of the Constitution provides that ‘no person shall be hindered in the enjoyment of his freedom of assembly and association’. Section 13(2) further states that a law adopted in the interest of, amongst others, public health, shall not be considered to be inconsistent with the section.

Section 15 of the Constitution of Mauritius protects the freedom of movement and sub-section 1 explains that freedom of movement implies, amongst others, the freedom to move around the country, to enter the country and to leave the country. Similar to freedom of assembly and association, this is not an absolute right since the other subsections of section 15 provide for instances where freedom of movement can be restricted and this includes public health.

These two articles are therefore subject to limitations and there are several cases that bear witness to such limitations: Police v Moorba 1971 (accused were prosecuted for having taken part in the or promotion of a gathering despite a prohibition order from the Commission of Police); Michel v Commissioner of Police 1992 (the court held that the right to demonstration cannot be exercised anytime, any place or for any length of time); Mingard v Commissioner of Police 1988 (applicant was not allowed to leave the country since there was a private prosecution against her: ‘we must bear in mind that when somebody is being prevented from leaving the country, it is his freedom of movement which is being infringed upon’); and Dookhy v Passport and Immigration Officer 1987 (the Court upheld the Police’s decision to withhold the passport of the applicant so that he could not travel).

The question that arises is whether similar to the cases above, the current Regulations/Order adopted by the government fulfil the requirements in sections 13 and 15, and the Constitution generally, to limit the rights therein?

Regulations/orders as limiting the rights in the Constitution

Section 2 of the Constitution of Mauritius provides that ‘[t]his Constitution is the supreme law of Mauritius and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void’. A literal interpretation of this section indicates that any step taken by the government to combat Covid 19 has to be in line with the Constitution. Thus, the Regulations/Order have to meet the limitation requirements set out in the Constitution.

As demonstrated, both the freedom of movement and freedom of assembly can be limited in Mauritius. In addition to the limitations provided by the different sections, section 18 of the Constitution provides for derogations from fundamental rights and freedoms under emergency powers. Hence, the government does have a broad power to suspend constitutional rights in times of emergency. However, although Mauritius considers Covid 19 as a sanitary emergency, it did not declare a state of emergency under its Constitution and adopted the measures through Regulations/Order. Therefore, the government of Mauritius cannot use section 18 of the Constitution as a justification for limiting the fundamental rights and freedom in the Constitution.

Since section 18 cannot be used to justify the limitations of the fundamental rights and freedoms in the Constitution, the other alternative is to analyse whether Regulations/Order adopted under different Acts of Parliaments can limit the rights in the Constitution.

Sections 13 and 15 both mention a law that provides for instances when the freedoms can be limited. The government of Mauritius has adopted laws such as the Public Gatherings Act and the Immigration Act to limit the rights in these two sections. The wordings of the two sections, and the Constitution generally, might give us the impression that only Acts of Parliament can be used to limit the rights in the Constitution. However, the case of Dookhy v Passport and Immigration Office 1987 confirms that regulations adopted under Acts of Parliament are part of the Acts and can, therefore, limit the rights in the Constitution. In this case, the applicant, Mr Dookhy was under police enquiry and he wanted to travel to the United Kingdom for business. Nevertheless, the police were withholding his passport and had an objection to his departure. The applicant’s contention was that his freedom of movement under section 15(1) of the Constitution was being infringed since the police did not act under law as provided by section 15(3). The Court broke the issues into two: first the police withholding his passport and second the police objecting to his departure. In relation to the first issue, the Court held that the police had the power to do so under Regulation 14(b) of the Passport Regulations. As for the second issue, the Court made reference to the Police Act. While delivering its decision, the court stated that the limitations imposed on his right to the movement was by virtue of a law and went further to state that ‘in fact more than one as earlier indicated’. This statement demonstrates that the Court considers the Passport
Regulations as a law that can limit the rights in the Constitution.

The decision of the Supreme Court in the Dookhy case can be applied to the current situation where the Regulations/Order adopted by the Minister of Health and Wellness under Acts of Parliament are considered as laws that can limit the rights in the Constitution.
Additionally, the Court in Dookhy held that in the event the police had taken actions that were not reasonably justified in a democratic society or had abused their powers, the Court would have ordered other measures. The Regulations/Order relating to Covid 19 in Mauritius can be considered as reasonable and justified since they have been adopted to combat a contagious virus, that has been considered as a global pandemic. Mauritius has followed the recommendations from the World Health Organisation in relation to quarantine measures and lockdown. Hence, it can be deduced that even if the measures restrict fundamental freedoms such as movement and assembly, they are reasonable and justified in a democratic society. As such, the Regulations/Order adopted to combat the spread of Covid 19 in Mauritius are not inconsistent with the Constitution.

Conclusion and Recommendations

In a nutshell, the limitation of rights provisions of the Constitution and the case of Dookhy demonstrate that the Regulations/Order adopted/issued by the Minister of Health and Wellness are constitutional since they were issued under Acts of Parliament and are considered as laws that can limit the rights in the Constitution. Moreover, they are justified in a democratic society to combat the Covid 19 pandemic. However, these measures are being criticised because the government has unilaterally adopted them. Although there were discussions with leaders of the opposition, such was not sufficient since it did not have inputs from members of parliament. To ensure that there is more legitimacy to the measures being adopted by the government, it is recommended that the currently suspended parliament resume online as soon as possible so that there can be debates and accountability for the measures being taken. Additionally, since it is currently able to contain the virus with even zero cases being recorded on some days, the government is working on a draft Covid 19 Bill to provide for a legal framework for gradually opening up the economy after 4 May. It is recommended that this Bill be debated by all members of Parliament through an online platform before it's coming into force. Additionally, the government must adopt a human rights approach when drafting the Bill to ensure that any restriction to human rights is being kept at a minimal and is justified and reasonable in a democratic society.