“Decision makers, whatever their status, cannot and are not allowed by law to possess absolute discretion”

Qs & As

Immigration Bill

* ‘The decision of the man, who believes he holds absolute discretion to deprive an individual of his citizenship, is reviewable by the judiciary’

 By Lex

The Immigration Bill, which supersedes the previous Act, has been passed this week in Parliament granting, in one of its clauses, an absolute discretionary power to the head of government to deprive any citizen by naturalisation of his citizenship status. Since no reason would need to be given either, this could restrict severely the deprived person’s ability to have legal recourse. Lex opines whether this clause and the absolute powers granted to any executive officer meets our constitutional provisions, comparable UK/UE practices or our international obligations.

* The Immigration Bill (No. XII of 2022), whose main object is “to consolidate and strengthen the law with regard to the admission and stay of non-citizens in the country” is being criticised in some quarters for the discretionary power it gives to the Home Affairs minister (usually held by the Prime Minister) to “deprive (in his absolute discretion and without giving any reason) any person of his citizenship of Mauritius, if he has reliable information and is satisfied that it is in the interest of defence, public safety or public order”. How do you react to what would amount to sweeping and unaccountable powers that are being vested in the Prime Minister?

Decision makers, whatever their status, cannot and are not allowed by law to possess absolute discretion. Absolute discretion does mean that the jurisdiction of the Supreme Court is ousted. The decision of the man, who believes he holds absolute discretion to deprive an individual of his citizenship, is reviewable by the judiciary.

* Given the way the it has been drafted and the discretionary powers being vested in the Prime Minister, do you think the amended law would pass the test of constitutionality?

The law may stand the test of constitutionality with the caveat that the decision emanating from the exercise of absolute discretion is definitely reviewable by the courts.

* There are however some freedoms that are or may be restricted by law in the interests of defence, public safety or public order. Which consideration is likely to prevail in the Mauritian context: the interests of justice or those of defence, public safety, public order? What has been the general trend in that regard?

Absolute freedom does not exist anywhere. All freedoms are subject to derogations. Our Constitution provides that the fundamental rights are subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of those rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest. All the freedoms may be derogated from provided they are justifiable in a democratic society.

* If a Prime Minister were to come forward and state that he cannot in the interests of defence, public safety, public order or national security divulge the reasons behind an executive decision – be it in relation to immigration or any other issue, will our Courts go along with that?

Certainly not. Confidentiality would in many instances give way to human rights considerations. For example, if a citizen has been deprived of his citizenship and he is given no reasons, how on earth will he be able to access the courts of law to challenge that decision? By not giving reasons, the Prime Minister would be denying or putting severe limits on the right of access to a court of law that an individual has and this a fundamental right.

* Does this mean that had the Prime Minister refused to divulge any details about the survey carried out at Baie Jacotet Landing Station in the interest of national security, that would have been the end of the story?

The most sensible thing the Prime Minister should have done right from the word go was to make a statement in Parliament or to the nation on TV that the survey was ordered as he had received reliable information that there might be a cyber attack or a terrorist attack on Mauritius without giving the details that would compromise any investigation or national security. He should also have alerted the partners of the Consortium about his action. All this would have been perfectly in order. Unfortunately, the whole incident has been turned into a political storm.

By refusing to give any clue of any possible cyber or terrorist attack, the Prime Minister has opened wide the avenues of speculation and insinuations.

* To come back to the Immigration Bill, Section 39 (4) of the Bill proposes to amend the Passport Act, the subsection (2) of which states: ‘A stateless person, or, where regulations are made under subsection (1), a national or citizen of a country specified in the regulations shall not be allowed to enter Mauritius unless he has obtained a visa.’ What happens to those that are rendered stateless resulting from the application of the amended Passport Act? What avenues of redress do they have?

A stateless person is a citizen of nowhere. Without a nationality, stateless persons are without the recognition or protection of any country. There are two UN Convention on Statelessness: first, the UN Convention of 1954, and second the 1961 Convention. Mauritius is not a party to any of these Conventions.

As explained by the UNHCR: “The 1954 Convention is designed to ensure that stateless people enjoy a minimum set of human rights. It establishes the legal definition of a stateless person as someone who is “not recognized as a national by any state under the operation of its law.” Read More… Become a Subscriber

Mauritius Times ePaper Friday 29 July 2022