The Attorney General (Mr Y. Varma): Mr Speaker, Sir, I move that the Assets Recovery Bill (No. II of 2011) be read a second time.

Mr Speaker, Sir, as Members of the House will be aware, the Government Programme 2010-2015 provides for the establishment of “an independent law enforcement agency under the aegis of the Office of the Director of Public Prosecutions to reinforce the fight against transnational crime and to recover ill-gotten gains”.

Further, the hon. Prime Minister, Dr. Navinchandra Ramgoolam, has, during his address in the course of debates with respect to the Budget Speech 2010, indicated that Government would be coming forward with a new Assets Recovery Bill, which would provide for the recovery of assets even in the absence of a criminal conviction.  The hon. Prime Minister had also stated that the Bill would address the difficulty that is presently being encountered by the authorities when dealing with cases where tainted assets have been transferred in the name of third parties.

Mr Speaker, Sir, there are two types of forfeiture used internationally to recover the proceeds and instrumentalities of crime (i.e. assets used to facilitate crime, such as a car or a yacht used to transport drugs).  There are, firstly, non conviction-based asset forfeiture and, secondly, conviction-based or criminal forfeiture.  Both share the same objective, namely the forfeiture by the State of proceeds and instrumentalities of crime.  The rationale is that those who commit unlawful activities should not be allowed to profit from their crimes.  Proceeds of crime should, therefore, be forfeited and used to compensate victims, whether it is the State or an individual.  The other objective sought to be achieved is the deterrence of unlawful activity.  It is believed that removing the economic gain element from crime will discourage the criminal conduct in the first instance while the forfeiture of crime-based assets will ensure that such assets are not used for further criminal purposes and thus serve as a deterrent.

Conviction and non-conviction based forfeiture differ essentially in the procedure used to forfeit assets.  The main distinction between the two forms is that conviction based forfeiture is an in personam order, i.e. an action against the person, and requires a criminal trial and conviction, whereas non-conviction based asset forfeiture, also commonly referred to as “civil forfeiture”, is on the other hand an action in rem, i.e an action against the asset itself and not the individual.  It is a separate action from any criminal proceedings and only requires proof that the property is tainted (that is, that the property is the proceeds or an instrumentality of crime).

Mr Speaker, Sir, the aim of this Bill is therefore to provide for the legal framework and procedure to enable the State to recover assets which are proceeds or instrumentalities of crime, or terrorist property –

(a)        where a person has been convicted of an offence (conviction-based confiscation); or

(b)        where there has been no prosecution but it can be proved on a balance of probabilities that the property represents proceeds or instrumentalities of unlawful activity, or terrorist property (non-conviction based, or civil, asset forfeiture).

The Bill creates a comprehensive assets recovery framework which will apply not only to drug offences but also to all offences against the laws of Mauritius which are punishable by a maximum term of imprisonment of not less than 12 months. It will also apply to any offence committed in a foreign State which, if committed in Mauritius, would constitute an offence here.  The Bill will apply to any offence committed, and any property obtained, after the commencement of the Act and will therefore not have any retrospective effect.

Mr Speaker, Sir, allow me now to take the House through the salient features of the Bill.

Part II makes provision for the establishment of an Enforcement Authority who will be the Director of Public Prosecutions (DPP).  An Investigative Agency shall be set up in the Enforcement Authority and shall comprise of law officers and law enforcement agents who shall be performing such duties as may be determined by the Enforcement Authority.  The Enforcement Authority will be responsible for, inter alia, applying to a Judge of the Supreme Court for a Confiscation or Recovery Order, or for a Restraining or Restriction Order from the Judge in Chambers in relation to property.  The Judge may, in appropriate cases, appoint a Trustee (or, in the case of a Restriction Order, an Asset Manager) to take custody of and manage the property in accordance with such directions as he may give.

Clause 6 of the Bill provides for a Recovered Assets Fund under the Finance and Audit Act, into which shall be credited all moneys derived from the enforcement of Recovery and Confiscation Orders or from proceeds of sale of property subject of Recovery and Confiscation Orders.  Payments may be authorised out of the fund to compensate victims who have suffered losses as a result of an unlawful activity.

Under Clause 8, the Attorney General shall, upon information supplied to him by the Enforcement Authority not later than 30 days after the end of the financial year, table a report in the National Assembly, not later than the first sitting day after the expiry of 90 days from the end of every financial year, detailing any amounts credited to the fund, any investments made as well as any specific payments made from the fund.

Sub-Part B of Part III deals with Confiscation Orders where a person is convicted or is taken to be convicted of an offence in respect of the benefit derived by the person from that offence.  A Confiscation Order may be discharged on the satisfaction of the Order by payment of the amount due under that Order. Provision is made at clause 24 for any aggrieved person by the grant of, or the refusal to grant, a Confiscation Order to lodge an appeal before the Court of Civil Appeal.

Part IV of the Bill deals with Civil Assets Recovery and the granting of Restriction and Recovery Orders.  The provisions of Part III relating to conviction based asset recovery have been mirrored in respect of civil asset recovery and provision has been made for the appointment of an Asset Manager (as compared to the trustee) who shall be authorised to take custody and control of any property and to manage or otherwise deal with it as the Judge may direct.

Sub-Part C of Part IV deals with tracing of assets. Where any property which constitutes proceeds or an instrumentality or terrorist property has been disposed of since it was used or obtained with the connection of an offence, it would be recoverable under the provisions of the Bill, if it is held by a person into whose hands it may be followed or traced.

Clause 43 makes it an offence where a person makes a disclosure which is likely to prejudice the investigation or where documents relevant to the investigation are falsified, concealed or destroyed.

Part V provides for ancillary orders such as production orders, search and seizure orders, disclosure orders, customer information orders and account monitoring orders, which may be obtained from the Judge in Chambers.

Clause 51 provides for the offence of “tipping off” by any financial institution in relation to any customer information or account information required.

Clause 60 provides for Compensation Orders which may be granted by the Court in the interests of justice.  The amount of compensation to be paid shall be any amount which the Court thinks reasonable, having regard to the loss suffered and any other relevant circumstances.

Clause 62 provides for the immunity of the Enforcement Authority or any person acting on behalf of the Enforcement Authority, for any act done in good faith in the performance of any duty or exercise of any power.

Clause 63 provides for penalties ranging from fines not exceeding 100,000 rupees and two million rupees, imprisonment not exceeding five years and penal servitude not exceeding ten years depending on the seriousness of offences committed.

The Bill at clauses 65 and 66 provides for the repeal of sections 45 and 45A of the Dangerous Drugs Act.  However, it is contemplated that any matter which is pending before the Commissioner, Drug Asset Forfeiture Office on the commencement of the Act may be completed in accordance with the repealed provisions of the Act.

Mr Speaker, Sir, I wish to inform the House that my office has, in fact, been working in close collaboration with the International Monetary Fund (IMF) which conducted three technical assistance (TA) missions to Mauritius to assist in the elaboration of this Bill.  Consultations were also held with various stakeholders (the Prime Minister’s Office, the Ministry of Finance, ICAC, the Police, the Financial Intelligence Unit, the Mauritius Revenue Authority, the Bank of Mauritius, the Mauritius Bankers’ Association, the Bar Association, the Law Society, the Chamber of Notaries) and a few Members of the National Assembly from both sides of the House, with a view to sensitising them about the concept of Assets Recovery and obtaining their constructive suggestions on the concept.

I wish to thank all those who took part in the consultations for their helpful verbal and written comments which were all duly considered.

I should also add that the Bill was finalised by my office with the invaluable assistance of Sir Victor Glover, Legal Consultant and former Chief Justice. The views and comments of the Director of Public Prosecutions, as Enforcement Authority under the Bill, were also obtained and taken on board.

Mr Speaker, Sir, I would like to quote Tony Blair in his autobiography “A Journey” where speaking on the UK “Proceeds of Crime Act”, he stated the following, I quote –

“It had given us, for the first time, the power to seize assets of suspected or convicted criminals on a basis that really did operate as a deterrent.”

I have no doubt that this Bill will provide the Enforcement Authority and other law enforcement agencies in the country with a powerful and effective tool to combat serious crime and, more particularly, drug trafficking and money-laundering. Indeed, experience has shown in other jurisdictions such as the United States, the United Kingdom, the Republic of Ireland and the Republic of South Africa that it pays to hit criminals where it really hurts, that is, in their pockets.

With these words, Mr Speaker, Sir, I commend the Bill to the House.

Dr. A. Boolell rose and seconded.

The Attorney General (Mr Y. Varma): Mr Speaker, Sir, I would like to, in fact, thank and congratulate hon. Members who have intervened on the Bill and it is worth noting that the House has spoken with one voice against proceeds of crime.

Mr Speaker, Sir, the hon. Third Member for Constituency No. 1 who intervened earlier on, raised a few points about sections 45 and 45(a) of the DDA. And, as I stated during my speech, Mr Speaker, Sir –

“It is contemplated that any matter which is pending before the Commissioner, Drug Asset Forfeiture Office on the commencement of the Act may be completed in accordance with the repealed provisions of the Act.”

That is, this clearly explains what will happen to the Drug Asset Forfeiture Office.

Mr Speaker, Sir, as far as the staff of the Enforcement Authority is concerned, again, I stated clearly in my speech, that the staff will comprise of Law Officers and Law Enforcement Agents who shall be performing such duties as may be determined by the Enforcement Authority. With regard to clauses 42 and 51, we will leave it to the DPP, in fact, to designate Law officers and the Secretary to Cabinet to designate Law Enforcement Agents and the extra training will be provided to the staff of the new body.

Mr Speaker, Sir, again, the hon. Third Member for Constituency No. 1, raised a few points about the role of the DPP. In fact, Mr Speaker, Sir, Clause 44 gives very wide powers to the Enforcement Authority.  Since the DPP will be the Enforcement Authority and his post is a Constitutional one, it would not be appropriate to tell him in detail how to do his job, Mr Speaker, Sir.

It’s worth reiterating our faith in the ongoing efforts and hard work undertaken by the ADSU, the Police Force and ICAC. The Assets Recovery will be an additional tool for Law Enforcement Authorities.

Mr Speaker, Sir, there was a point raised by both the hon. Third Member for Constituency No. 1 and the hon. Second Member for Constituency No. 2, on the depriving of property on civil standards, that is, the balance of probabilities, whether it is constitutional.

Section 8(4) of the Constitution, itself, provides for derogation from Protection from deprivation of property –

“By way of penalty for breach of the law or forfeiture in consequence of  inability of a drug-trafficker or a person who has enriched himself by fraudulent and/or corrupt means to show that he has acquired the property by lawful means.”

This is precisely, Mr Speaker, Sir, because civil asset forfeiture is targeted at the property and not at the person and the civil standard of balance of probabilities as opposed to this criminal standard beyond reasonable doubt suffices.

Mr Speaker, Sir, I also wish to inform this House that the European Court on human rights has found that the civil asset forfeiture is compliant with the European Convention on Human Rights from which Chapter 2 of our Constitution is inspired.

Mr Speaker, Sir, a few points raised by the hon. Second Member for Constituency No. 2, that is, the civil forfeiture, the standard of proof, balance of probabilities, that is, the defendant will not enjoy protection under normal – that is, the question of proportionality – this does not arise.

Mr Speaker, Sir, the proceedings against property in rem and not against the accused, as I stated earlier on, and there are clear safeguards which are provided for in the Bill, that is, the DPP as the Enforcement Authority; the Orders to be obtained from the Court, the provisions of clause 13 and section 10 of our Constitution, Mr Speaker, Sir, the presumption of innocence only applies when a person is charged with an offence in personam. Again, on the point raised by hon. Uteem, it would not be appropriate for the Law Enforcement Agents, such as the DPP, to authorise payment out of fund.  That should be for the Ministry of Finance or the Accountant General, I suppose.  It was clearly stated by the hon. Member.  Clause 7(2) clearly states that the Enforcement Authority will authorise payment out of a fund to satisfy compensation orders made by the court under clause 64; the court decides on the amount of compensation to be paid.

These were a few points raised by the hon. Members, Mr Speaker, Sir, and I guess I have replied to all of them.

Question put and agreed to.

Bill read a second time and committed.

The Attorney General (Mr Y. Varma):  Mr Speaker, Sir, I move that the Asset Recovery (Amendment) Bill (No. XXlV of 2012) be read a second time.

Mr Speaker, Sir, as hon. Members of the House are aware, the Asset Recovery Act, which was passed by this Assembly last year, provides for the framework and mechanism for the recovery of the proceeds and instrumentalities of crime.  The Act, in fact, came into operation on 01 February of this year.

The objective behind this piece of legislation, Mr Speaker, Sir, was to provide the relevant authorities involved in the combating of crime with the necessary framework and tools to, first and foremost, recover the proceeds of crime so that they may not be used for further criminal purposes and may, instead, be used to compensate victims, for instance, and secondly, to discourage crime.

Mr Speaker, Sir, as pointed out in my speech when the Asset Recovery Bill was introduced, the Government Programme 2010-2015 provides for the establishment of an independent law enforcement agency under the aegis of the Office of the Director of Public Prosecutions to reinforce the fight against transnational crime and to recover ill-gotten gains.  I am informed, Mr Speaker, Sir, that since the proclamation of the Asset Recovery Act, a unit has indeed been set up in the Office of the Director of Public Prosecutions comprising mainly of investigators and lawyers, and that the recruitment of other staff to form part of the said unit is still ongoing.

I understand that the unit is, to date, fully operational and that there have been, so far, about 50 cases referred to the Enforcement Authority which, as per the Asset Recovery Act, is the Director of Public Prosecutions.  These cases relate mostly to drug dealing, including recent high profile cases.  About 15 applications for Restraining Orders have been made by the Enforcement Authority and granted by the Court.  Other applications made relate to Ancillary Orders.  As regards the value of the assets and benefit that may be the subject matter of applications in the future, it is, so far, of approximately Rs100 m.

I also understand that the Enforcement Authority has, on a regular basis, been organising meetings with other stakeholders like the Financial Intelligence Unit, the Police Department, the Independent Commission Against Corruption, the Mauritius Revenue Authority, the Financial Services Commission and the Registrar of Companies.  Furthermore, with regard to important cases, taskforce meetings with law enforcement agencies have also been regularly held.

Consequently, in the light of experience gathered by the Enforcement Authority since the proclamation of the Asset Recovery Act and in view of certain problems encountered in its implementation, representations have recently been received from the Enforcement Authority for amendments to be brought to the Asset Recovery Act in order to, mainly, enable the Enforcement Authority to perform its role more effectively under the law and to allow the recovery of proceeds derived before the coming into operation of the Asset Recovery Act, thereby allowing a more efficient and effective implementation of the said Act.  It is also to be noted that the Government Programme 2012-2015 provides at paragraph 22 for the amendment of the Asset Recovery Act to cover all accumulated assets of persons convicted of specified offences.

The present Bill, therefore, Mr Speaker, Sir, purports to give effect to the provision of the Government Programme referred to above and the various recommendations of the Enforcement Authority in order to, inter alia –

Firstly, give to the Enforcement Authority the power to confiscate or recover assets accumulated illegally up to a period of 10 years prior to the commencement of the Asset Recovery Act.  I must here point out, Mr Speaker, Sir, that as per the United Nations Convention against Corruption, provision should be made under the law of the member States for the recovery of all proceeds derived by an individual.  Moreover, in countries like South Africa, the United Kingdom, Australia, New Zealand and many other jurisdictions, the recovery of proceeds which have been acquired before the enactment of their relevant law, is possible.

Secondly, broaden the definitions of “gift”, “interest” and “benefit”.

Thirdly, expressly provide for the reversal of the burden of proof with regard to criminal based seizure and confiscation so that the onus is not on the Enforcement Authority to prove the criminal nature of assets.  Indeed, Mr Speaker, Sir, under our law as it presently stands, it is for the Enforcement Authority to satisfy the Court that property or benefit was not derived from an unlawful activity, which is in sharp contrast not only with the practice in other jurisdictions, but also with other pieces of our own legislation dealing with asset recovery like the Dangerous Drug Act, the Financial Intelligence and Anti-Money Laundering Act and the Prevention of Corruption Act, which all provide for the reversal of the burden of proof.  This does not, however, mean that the Enforcement Authority does not have to prove anything because it will still be for the Enforcement Authority to satisfy the Court that a Confiscation Order is justified on a balance of probabilities.

Fourthly, allow suspects themselves to manage their assets, in view of the exorbitant costs involved in the appointment of an Asset Manager.

Fifthly, provide that the Investigative Agency shall be headed by a Chief Investigating Officer with appropriate qualifications, and

Finally, make better provision for confidentiality and cooperation with public bodies.

Moreover, opportunity has also been taken to make certain minor corrections to the Act. As far as the different provisions of the Bill are concerned, Mr Speaker,

Sir, clause 3 amends section 2 of the Asset Recovery Act (i.e the Interpretation Section) in order to, inter alia, amend the definitions of “benefit”, “gift”, “instrumentality”, “interest” and ”proceeds”.  It is here worth noting that the term “benefit” is being extended to apply to actual as well as potential advantage, gain, profit, benefit or payment that any person derives or obtains or is likely to derive or obtain.

A few new definitions are also sought to be inserted in the Asset Recovery Act, including that of “unlawful activity”.  I would here like to point out that I shall, at Committee Stage, move an amendment, as circulated, to clause 3 (i) of the Bill, so as to delete in paragraph (a) of the proposed definition of “unlawful activity” the words “and which is done after the commencement of this Act”, and here, Mr Speaker, Sir, I am thankful to the hon. Second Member for Port Louis South and Port Louis Central for having brought the issue to my attention.

Clause 4, for its part, amends section 3 of the Asset Recovery Act so as to allow applications to be made under the Act in respect of unlawful activities (as now defined) carried out within 10 years before the commencement of the Act, and thereby give to the Enforcement Authority the power to confiscate or recover assets accumulated illegally during the 10 years preceding the commencement of the Act.  As for the new subsection (2A) which is sought to be inserted in section 3, it provides that for the purposes of sections 17 and 19, where it is found that a person was in possession of any property or has derived a benefit from an unlawful activity, and that he did not have a legitimate source of income sufficient to justify his interest in the property or the benefit derived by him, the onus shall, on a balance of probabilities, lie on that person to show that the property was not obtained, or the benefit was not derived, from an unlawful activity.  Finally, the new subsection (5) that is sought to be inserted in section 3 clearly specifies that an application to the Court or a Judge under the Asset Recovery Act shall constitute civil proceedings and be determined on a balance of probabilities.

Clause 6 seeks to amend section 5 of the Asset Recovery Act mainly to provide that the Investigative Agency shall no longer comprise law officers. On the other hand, provision is made for one of the law enforcement agents forming part of the Investigative Agency to be designated as the Chief Investigating Officer who, following an investigation has to submit the conclusions of the Investigative Agency to the Enforcement Authority.

As for clause 7, it seeks to amend section 7 of the Asset Recovery Act to provide, inter alia, that the Enforcement Authority may authorise payments out of the Recovered Assets Fund to fund such training or capacity-building activity as may be required by the said Authority for the purposes of the Act.  As at now, such payments may only be authorised to compensate victims, transfer recovered property, pay expenses relating to the recovery and management of property (including fees of receivers, Trustees or Asset Managers), pay third parties, and pay costs associated with the administration of the Fund.

Furthermore, clause 10 seeks to amend section 17 of the Asset Recovery Act in its subsection (1), so as to give to the Enforcement Authority the power to apply for a Confiscation Order, not only in respect of the benefit derived by a convicted person from the offence committed, but also from any other unlawful activity which the Court finds to be sufficiently related to that offence.  Subsection (5) of section 17 is also sought to be amended to enable the Court to have regard to any other relevant evidence gathered in the course of an Investigation where there is an application for a Confiscation Order, so that any evidence received in the course of the proceedings against the person convicted before the trial Court.

Furthermore, section 17(7), which presently provides that a person shall be deemed to be convicted of an offence where he is charged with, and found guilty of the offence but is found not to be criminally responsible, is being repealed.

Under clause 11, section 19, which deals with Confiscation Orders, is sought to be amended in its subsection (1), so as to mainly make provision for a time limit within which a defendant who is considered to have benefitted from an offence or any other unlawful activity which the Court finds to be sufficiently related to that offence, should pay to the State an amount equal to the value of his benefit.

As for Clause 12, it seeks to amend section 20(1) of the Asset Recovery Act to provide that the value of the benefit derived from an offence may now include the value of any dangerous drug found in the possession of the defendant or any other person on behalf of the defendant.

Clause 15 seeks to amend section 27 (which deals with Restriction Orders) so as to enable a Judge to make a Restriction Order where a person is not in Mauritius. Moreover, by virtue of the proposed new section 27(3A), the Enforcement Authority may apply to a Judge for an order to the effect that, instead of appointing an Asset Manager, the person in whose possession the property is found shall exercise the powers referred to in section 27(2)(b).  Further, the application of section 14 is also sought to be extended to a Restriction Order, with necessary modifications, as it applies to Restraining Orders.

Clause 16, for its part, seeks to amend section 35(3) of the Act to enable the Court to make a Recovery Order where a person is not in Mauritius.

Clause 18 seeks to repeal and replace section 45 (which presently deals with Production Orders) by a new section 45 which provides for the exercise of Ancillary Powers by the Enforcement Authority which may thus, by virtue of the proposed new sections 47 and 48, under clauses 20 and 21 respectively, require a person to produce or disclose information or material, or a financial institution to provide customer information, in the circumstances set out in the said new sections.

Clause 22, for its part, seeks to amend section 50 to render refusal or failure to comply with a requirement under section 47 or 48 an offence.

As regards Clause 24, it seeks to amend section 59 (which deals with domestic co-operation agreements) to provide that every public body (including the Commissioner of Police, the Financial Intelligence Unit, the Financial Services Commission, the Independent Commission against Corruption, the Mauritius Revenue Authority and the Registrar of Companies) which has been notified by the Enforcement Authority of the start of an Investigation shall provide the latter with such information as it may require for the exercise of its functions and powers under the Asset Recovery Act.

Clause 25 of the Bill seeks to amend section 63 to mainly provide that the Community Service Order shall not apply to a conviction for an offence specified in section 63(1)(a).

Finally,  Mr Speaker, Sir, Clause 26 seeks to amend section 66(1) of the Asset Recovery Act in order to enable the Dangerous Drugs Commissioner under the Dangerous Drugs Act to complete any matter pending before him at the commencement of the Asset Recovery Act, in accordance with section 64(3)(k) of the Banking Act, in addition to the repealed provisions of the Dangerous Drugs Act, while Clause 27 makes a consequential amendment to section 64(3)(k) of the Banking Act.

Mr Speaker, Sir, I am sure Members of the House will agree that the amendments being proposed, which are meant to ensure that offenders cannot benefit from their crimes and which are in line with the objective of Government not only to combat but also discourage criminality, will no doubt improve the existing asset recovery mechanism provided for in the Asset Recovery Act. It is also to be noted, Mr Speaker, Sir, that the amendments being proposed will also serve to bring the Asset Recovery Act much more in line with the current trend and practice obtained in other jurisdictions such as South Africa, the United Kingdom and Scotland, where the asset recovery mechanism has proved to be successful – which is precisely, Mr Speaker, Sir, the ultimate aim and objective of Government behind the present piece of legislation, and also the end result which, I am sure, not only this Government, but also every citizen of this country wishes to see.

With these words, Mr Speaker, Sir, I commend the Bill to the House.

Dr. A. Boolell rose and seconded.

(7.33 p.m.)

Mr Varma:  Mr Speaker, Sir, I would like to thank hon. Members, particularly the Prime Minister, who have intervened on this very important piece of legislation.

Mr Speaker, Sir, the main issue that has been raised in the House today by Members of the Opposition, namely, the Third Member for Grand River North West and Port Louis West, the Second Member for Port Louis Central and Port Louis South, the First Member for Moka and Quartier Militaire and the First Member for Vacoas and Floreal.  In fact, it is a Constitutional issue and they have referred to Section 10 (4) of the Constitution.  I would like to quote the relevant section –

“No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.”

Mr Speaker, Sir, the retrospective effect is not in relation to an offence which did not exist 10 years before the commencement of the Act.  The retrospective effect is in relation to the property of a convicted person that he may have acquired unlawfully and it is not against the person. I repeat, Mr Speaker, Sir, the retrospective effect is against the property and not against the person. That is, there is a civil burden of proof and it is not a criminal one.

Mr Speaker, Sir, the Constitution prohibits the leveling of a criminal charge against a suspect, which at the time of the commission of the act, subject matter of the criminal charge does not constitute an offence.  The objective of the Asset Recovery Act is to reinforce the legal arsenal with a view to effectively combating unlawful activity through recovery of assets obtained or derived by a person following a conviction for an offence by a court of law.

Mr Speaker, Sir, there was another point raised by the hon. Third Member for GRNW and Port Louis West as regards the fair hearing.  Indeed, the fair hearing will depend on a case to case basis and it should be decided by the court.  It will be up to the person to show or to inform the court that his rights are being infringed and it will be for the court to decide whether the hearing is fair or not.

I believe the Second Member for Port Louis South and Port Louis Central raised the issue about whether documents would have been lost in relation to the property in question.  But, in fact, Mr Speaker, Sir, as the law will now stipulate, the burden will be on the person to show how he acquired the property and this is the case in Mauritius, in other pieces of legislation that I highlighted earlier on.

Mr Speaker, Sir, there was another point which was raised by the hon. Third Member for Constituency No. 1, as regards freezing of assets, which, of course, does not directly relate to the Bill before the House today, but I would like to inform him that the main Act, that is, the Asset Recovery Act provides for the repealing of sections 45 and 45(a) of the Dangerous Drugs Act.  It means that the freezing of assets as from the commencement of the Act will not apply.  It will apply to those before.

Mr Speaker, Sir, as regards the point about deprivation of property, Section 8 of the Constitution is clear on that –

“No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where –

• The taking of possession or acquisition is necessary or expedient in the interests of defence, public safety, public order, public morality, public health (…)”.

I think it fits squarely within the provision of the Constitution.

Mr Speaker, Sir, there was another point raised about evidence gathered in the course of an investigation.  Indeed, this will be by affidavit evidence and it will be for the court to decide whether to accept such evidence. And this amendment is, by no means, trying to tie the hands of the court in that it should mandatorily accept such evidence.

The point raised by the hon. First Member for Quartier Militaire and Moka regards contravention, Mr Speaker, Sir.  What we have inserted in the Bill, in the definition of “unlawful activity” is a contravention of the law which means to contravene the law.  We are not saying a contravention as described under the Criminal Code. It is contravention of the law.

Mr Speaker, Sir, I think that I have replied to all the major points raised by hon. Members and, again, I think this is a very important piece of legislation in our fight against fraud and corruption.

Thank you.

Question put and agreed to.

Bill read a second time and committed.

(7.52 p.m.)

At this stage the Deputy Speaker took the Chair.

COMMITTEE STAGE

(The Deputy Speaker in the Chair)

THE ASSET RECOVERY (AMENDMENT) BILL

(NO. XXIV OF 2012).

Clauses 1 and 2 ordered to stand part of the Bill.

Clause 3 (Section 2 of principal Act amended)

Motion made and question proposed: “that the clause stands part of the Bill”.

Mr Varma: Sir, I move for the following amendment –

“In clause 3, in paragraph (i), in the definition of “unlawful activity”, in paragraph (a), by deleting the words “and which is done after the commencement of this Act”.”

Amendment agreed to.

Clause 3, as amended, ordered to stand part of the Bill.

Clause 4 (Section 3 of principal Act amended)

Motion made and question proposed: “that the clause stands part of the Bill”.

Mr Varma: Sir, I move for the following amendment –

“In clause 4, in paragraph (c), in the proposed new subsection (2A), by deleting the words “balance probabilities” and replacing them by the words “balance of probabilities”.”

Amendment agreed to.

Clause 4, as amended, ordered to stand part of the Bill.

Clause 5 ordered to stand part of the Bill.

Clause 6 (Section 5 of principal Act amended)

Motion made and question proposed: “that the clause stands part of the Bill”.

Mr Varma: Sir, I move for the following amendment –

“In clause 6, in paragraph (b), by deleting the word “Investigation” and replacing it by the word “Investigating”.”

Amendment agreed to.

Clause 6, as amended, ordered to stand part of the Bill.

Clauses 7 to 27 ordered to stand part of the Bill.

The title and enacting clause were agreed to.

The Bill, as amended, was agreed to.

The Attorney General (Mr Y. Varma): Mr Speaker, Sir, I move that the Affidavits of Prescription Act (Suspension of Certain Provisions) Bill (No. XXV of 2012) be read a second time.

Mr Speaker, Sir, as Members of the House will recall, the Commission of Enquiry on the System of Acquisitive Prescription was issued by the then Acting President of the Republic on 21 May of this year, to enquire and report on whether the system of Acquisitive Prescription gives rise or has given rise to any malpractice or wrongdoing, or causes or has caused undue hardship or prejudice to the public.  As per its terms of reference, the Commission of Enquiry is also to report on such changes, including statutory amendments, as may be necessary to better safeguard the interest of the public at large.

Mr Speaker, Sir, I am given to understand that the Commission of Enquiry has had preliminary meetings with various persons and institutions involved with the prescription of lands, namely: Attorneys, Notaries, Barristers, the Registrar-General/Conservator of Mortgages, the Curator of Vacant Estates and the Ministry of Housing and Lands, and it has, since its first sitting on 06 August 2012, been hearing professionals and representatives of various institutions concerned directly or indirectly with the prescription issue, including members of the public.

However, Mr Speaker, Sir, it is with great concern that I have to inform the House of certain matters which have been brought to the attention of Government by the Commission of Enquiry, in one of its correspondences, and which are as follows –

Firstly, under our law, as it presently stands – i.e. the Affidavits of Prescription Act which dates back to 1958 – it is extremely easy to prescribe an immoveable property.  Indeed, 2 persons simply have to swear an affidavit stating that a party has occupied a land for more than 30 years, following which the affidavit is deposited at the office of the Registrar-General, together with a memorandum of survey, and the publications are then made in the Government Gazette as well as two daily newspapers.  Thereafter, if there is no objection within a period of 3 months of the last publication, the affidavit of prescription is transcribed and the person concerned is deemed to be the owner of the land.

Secondly, the 2 persons swearing the affidavit usually do not know the exact location of the land and sometimes they do not even know the applicant.

Thirdly, most of the persons whose land is being prescribed do not have access to the Government Gazette or the daily newspapers where the publications are made.

Fourthly, in many cases, the memorandum of survey drawn up by a Sworn Land Surveyor contains important irregularities such as fake Land Survey number, inappropriate boundaries and fake neighbours’ particulars.

Mr Speaker, Sir, another major cause for concern is that the Commission of Enquiry has further noted a considerable increase in the number of applications for prescription in daily newspapers since its setting up.  Consequently, the Commission of Enquiry has requested that, pending its recommendations and any amendment to the law, and with a view to protecting the public against possible fraudulent prescriptions, certain provisions of the Affidavits of Prescription Act (“the Act”) be suspended so that no application for the transcription of an affidavit of prescription can be made to the Conservator of Mortgages – which explains why the present piece of legislation is before this House today.

This Bill, therefore, Mr Speaker, Sir, seeks to suspend certain provisions of the Act so that, pending the recommendations of the Commission of Enquiry and any amendment made to the law as a consequence, no application for the transcription of an affidavit of prescription can be made to the Conservator of Mortgages.  It is to be noted that the Bill also makes provision for applications for transcription of an affidavit of prescription that are pending on the Bill becoming law.

Insofar as the different provisions of the Bill are concerned, Mr Speaker, Sir, Clause 3(1) of the Bill accordingly suspends –

• firstly, section 3 of the Act – which provides for the conditions for the transcription of affidavits of prescription;
• secondly, section 4 – which deals with applications for the transcription of affidavits of prescription;
• thirdly, sections 6 to 9 – which respectively deal with objections to the transcription of affidavits of prescription, disposal of such objections, prohibition of transcription of affidavits of prescription, and
• finally, the Schedules to the Act.

However, Mr Speaker, Sir, I would here like to point out that, under clause 3(2) of the Bill, where, on or after 23 July 2012 but before the commencement of the Affidavits of Prescription Act (Suspension of Certain Provisions) Act 2012, notice of any application for the transcription of an affidavit of prescription has been published in accordance with the Act, an objection to the transcription of such affidavit of prescription may be made in the manner specified in section 6(1) of the Act by any person claiming to have an interest in the immovable property in respect of which the affidavit of prescription was sworn, within 6 months, or such longer period not exceeding 12 months as may be prescribed by the Attorney General, of the commencement of the Affidavits of Prescription Act (Suspension of Certain Provisions) Act 2012.

As regards applications for transcription made before 23 July 2012,   Mr Speaker, Sir, the affidavit of prescription shall be transcribed in accordance with section 9(1) of the Act, where no objection has been received by the Conservator of Mortgages on a commencement of this Act (Suspension of Certain Provisions). In the case where an objection was received by the Conservator of Mortgages within 3 months of the last publication of the notice under section 4(3) of the Act, the objection shall be dealt with in accordance with section 7 of the Act.

Consequently, by virtue of Clause 4 of the Bill, the Affidavits of Prescription Act (Suspension of Certain Provisions) Act 2012 shall, on being passed, be deemed to have come into operation on 23 October 2012.

Mr Speaker, Sir, I have absolutely no doubt that Members of the House will agree that, in the light of the observations of the Commission of Enquiry and the increasing number of applications for the transcription of affidavits, it is most imperative that the above provisions of the Act be suspended for the protection, and in the interest, of the public at large in order to ensure that the property rights of individuals of this country, as guaranteed by our Constitution, are not violated or interfered with.

With these words, Mr Speaker, Sir, I commend the Bill to the House.

Dr. A. Boolell rose and seconded.

Mr Varma: Mr Deputy Speaker, Sir, in fact, I would like to thank all hon. Members who have intervened on this Bill. There are certain suggestions which have been made by Members of Parliament today. I can assure the House that these will be transmitted to the relevant authorities.

I would just like to reply to one point which was raised earlier by the Third Member for Flacq and Bon Accueil. In fact, Mr Deputy Speaker, Sir, we are not blaming the whole system. We received representations from the Commission of Enquiry and Government, in its wisdom, thought it proper to come to the House and present this piece of legislation to suspend certain sections of the law pending the recommendations of the Commission of Enquiry.

As regards the issue of sale by levy, Mr Deputy Speaker, Sir, the issue was raised by the hon. Third Member for GRNW and Port Louis West and also by the Third Member for Flacq and Bon Accueil. In fact, Mr Deputy Speaker, Sir, this piece of legislation is before the House today following recommendations made by the Commission of Enquiry and, indeed, ils ont pris le devant. In fact, we are looking into the matter. That’s why Government, in its wisdom, set up two Commissions of Enquiry which are presided by Senior Magistrates of the Intermediate Court. We are aware of the problems. That is why we have set up these Commissions to look into the matter.

Again, Mr Deputy Speaker, Sir, we are meeting after three months. The positive aspect of the debate today is that there is, in general, broad consensus on the piece of legislation.

Thank you very much.

Question put and agreed to.

Bill read a second time and committed.

The Attorney General (Mr Y. Varma):  Mr Speaker, Sir, I move that the Certificate of Character Bill (No. XVII of 2012) be read a second time.

Mr Speaker, Sir, the main object of this Bill is to repeal the Certificate of Morality Act and to provide for the issue of certificates of character.  The Bill provides, inter alia, that –

• a person who has been convicted of a specified minor offence, been given a non-custodial sentence in specified cases or been granted a free pardon in respect of an offence shall be deemed not to have committed the offence, for the purpose of being issued a certificate of character;
• a person may make an application for a certificate electronically;
• an applicant cannot generally make more than one application in his name within 3 months from the date of issue of the certificate;
• an employer cannot require a worker to apply for a certificate within one year following the submission of a certificate by that worker to him;

(e)        an applicant shall pay an appropriate fee for the issue of a certificate, and

(f)        the Director of Public Prosecutions may delegate any of his powers under the Act to the Commissioner of Police or any other public officer.

This Bill, Mr Speaker, Sir, has been drawn up following extensive consultations with the Prime Minister’s Office, the Director of Public Prosecutions, the Commissioner of Police and other relevant stakeholders, who have all made valuable inputs. It has become clear recently that the Certificate of Morality Act had to be repealed to provide for a more workable regime. The sheer number of applications for certificates of morality had made it difficult for the Office of the Director of Public Prosecutions to process such applications within a reasonable time. For instance, the number of applications being processed by the Office of the Director of Public Prosecutions has risen from 37,815 in 2007 to 51,622 in 2011.

Mr Speaker, Sir, I shall now deal with the specific provisions of the Bill.

The purpose of issuing a certificate is to attest as to the previous conviction(s), if any, of a person.  Law and morality are different, in the sense that whatever may be legal may not necessarily be moral.  In that regard, it is felt that the term “morality” is no longer appropriate. Since a person who has no previous convictions is said, in law, to be of “good character”, it is proposed to restyle the certificate of morality as “the certificate of character”.  As such, the term “certificate”, in clause 2 of the Bill means a certificate of character.

Clause 3, Mr Speaker Sir, provides that the DPP may delegate his powers under this Act to the Commissioner of Police or any other public officer.  In fact, under the present Certificate of Morality Act, the DPP is responsible for processing applications and issuing certificates of morality. This has been retained in the present Bill, subject to the DPP being entitled to delegate his powers.

Mr Speaker, Sir, clause 4 deals with applications for certificates of character.  Sub-clause (2) provides that any person wishing to obtain a certificate in his name shall apply to the Director of Public Prosecutions, or to the delegated person, in such form and manner as the Director of Public Prosecutions may approve.  Where an application is made by a citizen of Mauritius, it shall be accompanied by the original and two photocopies of the applicant’s birth certificate, identity card and, where applicable, marriage certificate. In the case of a non-citizen, the application shall be accompanied by the original and two photocopies of the applicant’s birth certificate, passport and, where applicable, marriage certificate.  An application fee of 100 rupees will be levied, the aim being to prohibit and lessen the burden both (financial and non-financial) on the Director of Public Prosecutions or a delegated person.

Over the years, Mr Speaker, Sir, it has been noted that an employer would require his employee to provide a certificate every three months, presumably, to ensure that the employee still has a clean record and does not have a criminal conviction which may jeopardise his position in the employer’s organisation.  However, very often, the employee still has a clean record and it is felt that processing additional applications from the same applicant-employee, for the same purpose entails a waste of resources for the Police Officers who have to verify the information submitted on the application form anew, and for the DPP who has to proceed with the applications and issue the certificates anew.  There is also a financial implication to such applications, in that additional certificates have to be printed and issued.

Therefore, Mr Speaker, Sir, the Bill provides, in clause 4(5), that an employer cannot require a worker to apply for a certificate within one year following the submission of a certificate by that worker to him. Nevertheless, as per clause 4(3), an employer may, with the written consent of his worker, apply for a certificate in the latter’s name within that period, on the condition that the employer pays a fee of Rs300 and submits the relevant documents.  That clause, Mr Speaker, Sir, is aimed at prohibiting multiple applications for certificates within a short span of time and lessening the burden on the Director of Public Prosecutions, a delegated person and the worker, while allowing an employer in appropriate cases to ascertain if the worker is still of good character.

Mr Speaker, Sir, clause 4(6) of the Bill also provides that a person may make an application for a certificate of character electronically. Mr Speaker, Sir, I shall, at Committee Stage, move for an amendment to clause 4(6) of the Bill to provide that an application for a certificate of character may be made electronically in such form and manner as may be approved by the DPP, and that the application fee for an electronic application will be prescribed by regulations. Mr Speaker, Sir, in line with Government’s promotion of the use of information and communication technologies this initiative is being taken.  Security issues will have to be addressed however, before this provision can be given effect.

Mr Speaker, Sir, the Bill provides that a person who has been convicted of a specified minor offence, been given a non-custodial sentence in specified cases or been granted a free pardon in respect of an offence shall be deemed not to have committed the offence, for the purpose of being issued a certificate of character.

In fact, Mr Speaker, Sir, I have been informed that a large majority of employers in the private sector have recently adopted the practice of requiring their employees and prospective employees to produce a Certificate of Morality.  It has been reported that many people are facing difficulties when following a conviction, sometimes dating back several years, they are ordered to pay a small fine, were absolutely or conditionally discharged. These persons, Mr Speaker, Sir, must go through the lengthy process of petitioning the President for pardon. This process is lengthy because, on receipt of a petition, the President refers it to the Commission on the Prerogative of Mercy which, in turn, requests the Commissioner of Police (and sometimes, the Probation Office) to make a report on the petition.  Some of these persons even have recourse to law practitioners.

In order to ensure that persons who have been convicted of certain minor offences will not face difficulties in society, especially when seeking employment, clause 5(2) of the Bill, Mr Speaker, Sir, provides –

• that a person who has been granted a free pardon in respect of an offence;

(b)        who has, following a conviction for a crime or misdemeanour –

(i)          been given an absolute discharge;

(ii)        been given a conditional discharge and complied with the terms and conditions of the discharge, or

(iii)       who has more than 5 years before making an application, been convicted of a crime or misdemeanour and fined up to Rs5,000 or made subject of a probation order in specific cases will be considered as not having committed that offence as far as the application for the certificate of character is concerned.

Clause 5(2) of the Bill, Mr Speaker,  Sir, is nevertheless subject to the person, in whose name a certificate will be issued, not having at any point in time, been convicted of certain serious offences listed in the Second Schedule to the Bill, for example, Murder, Manslaughter, Offences under the Dangerous Drugs Act, to name, but a few.

Mr Speaker, Sir, under the present Certificate of Morality Act, persons who have been convicted of serious offences listed in the Second Schedule to the Act and including, inter alia, Murder, Child Trafficking, Offences under the Prevention of Terrorism Act and the Dangerous Drugs Act, are not eligible to a certificate. It is proposed to follow the UK system by issuing a certificate listing out any previous conviction(s).

It is apposite here, Mr Speaker, Sir, to refer to the system that obtains in the UK. A ‘Criminal Conviction Certificate’ or ‘Criminal Record Certificate’ may be issued under the Police Act 1997.  A ‘Criminal Conviction Certificate’ is a certificate which gives the prescribed details of every conviction of the applicant, or states that there is no such conviction. A ‘Criminal Record Certificate’ is a certificate which gives the prescribed details of every conviction and caution relating to the applicant, or states that there is no such matter.  Where the applicant has a clean record, the mention ‘NONE RECORDED’ is stated on the certificate.

Clause 5(4) of the Bill will thus ensure that any person, who has been convicted of any crime or misdemeanour, shall be entitled to a certificate of character which, subject to clause 5(2), will list out his previous convictions.

Mr Speaker, Sir, there is a further provision in the Bill, which is aimed at prohibiting multiple applications for certificates within a short span of time and lessening the burden on the Director of Public Prosecutions or a delegated person. Clause 5(6) provides that no certificate of character shall be issued in the name of a person within three months from the date of issue of the certificate, unless there has been a material change in the circumstances of that person, or where the subsequent application is made by the employer.

Mr Speaker, Sir, clause 6 of the Bill deals with offences, whilst clause 7 provides for immunity, civil and criminal, of all those involved in the process leading to the issue of certificates of character.  Under clause 8, the Attorney General is empowered to make regulations for the purposes of the Act.  Clauses 10 and 11 deal respectively with consequential amendments to other enactments where reference is made to a certificate of morality, and savings and transitional provisions with respect to certificates of morality already applied for or issued before the coming into operation of the Act, once passed.

Mr Speaker, Sir, the primary objectives of the Bill are –

• to ensure that citizens of this country are not hampered in their everyday life by not being able to obtain a certificate attesting as to their criminal record(s), or by being issued with certificates still referring to previous convictions for certain minor offences, or by being required, on numerous occasions, to submit certificates to the same employer within a short period of time, and
• to lessen the financial and non-financial constraints on the DPP or a delegated person.

Mr Speaker, Sir, I will end by thanking Dr. the hon. Prime Minister for his support and guidance throughout the preparation and finalisation of the Bill.  A special note of sincere appreciation goes to my officers and Sir Victor Glover, our Legal Consultant, who have worked diligently in the preparation and finalisation of the Bill.

With these words, Mr Speaker, Sir, I commend the Bill to the House.

The vice-Prime Minister, Minister of Public Infrastructure, National Development Unit, Land Transport and Shipping (Mr A. Bachoo) rose and seconded.

Mr Varma: Mr Speaker, Sir, I would like to thank my good friends, hon.  Ministers Faugoo and Mohamed, for their support not only for this Bill, but for all the Bills which have been presented as regards reform in the legal sector.

This is all I have to say, Mr Speaker, Sir.

Question put and agreed to.

Bill read a second time and committed.

COMMITTEE STAGE

(Mr Speaker in the Chair)

THE CERTIFICATE OF CHARACTER BILL

(NO. XVII OF 2012)

Clauses 1-3 ordered to stand part of the Bill.

Clause 4 (Making an application)

Motion made and question proposed: “that the clause stands part of the Bill.”

Mr Varma: Mr Chairman, I move that clause 4(6) be amended by deleting the words “, and on payment of such fee, as may be prescribed” and replacing them by the words “as the Director of Public Prosecutions may approve and on payment of such fee as may be prescribed”.

Amendment agreed to.

Clause 4 as amended, ordered to stand part of the Bill.

Clauses 5 to 12 ordered to stand part of the Bill.

Schedules 1 to 3 ordered to stand part of the Bill.

The title and the enacting clause were agreed to.

The Bill, as amended, was agreed to.

On the Assembly resuming with Mr Speaker in the Chair, Mr Speaker reported accordingly.

Third Reading

On motion made and seconded, the Certificate of Character Bill (No. XVII of 2012) was read the third time and passed.

The Attorney General (Mr Y. Varma): Mr Speaker, Sir, I move that the Criminal Code (Amendment) Bill (No. VIII of 2012) be read a second time.

Today is a historic day for the whole country. The present revolutionary piece of legislation has finally come before this House, representing a ray of hope for those women who otherwise have to undergo pregnancies in very difficult circumstances. The presence today in our public gallery of women from several NGOs bears testimony to the importance of this legislation.

For decades, the question of whether or not to legalise abortion has been the subject of considerable debate and controversy.  Enough has been said and heard on the topic.  Procrastination should stop.  It is time to act.  We all know that it takes enormous courage to bring such an important piece of legislation on a topic as sensitive as abortion, and if there is one quality that the hon. Prime Minister and this Government do not lack, it is precisely courage. I have said it already and repeat it: “C’est une décision sage, courageuse et audacieuse du gouvernement.”

Mr Speaker, Sir, religious, ethical, moral and cultural sensibilities continue to influence abortion laws throughout the world. Countries which allow abortion in specified cases include the United Kingdom, India, South Africa, Pakistan, France, Italy and Spain.

At present, abortion is, in any circumstances, unlawful in Mauritius. Section 235(1) of the Criminal Code provides that any person who procures the miscarriage of a pregnant woman or supplies the means of procuring such miscarriage, whether the woman consents or not, shall be punished by penal servitude for a term not exceeding 10 years.  Two further offences are created in section 235, namely –

• under subsection (2), where any woman procures her own miscarriage or consents to make use of means pointed out or administered to her with that intent, and that such miscarriage ensues;
• under subsection (3), where any physician, surgeon, or pharmacist points out, facilitates or administers the means of miscarriage, and such miscarriage ensues.

Mr Speaker, Sir, in the light of a number of recent cases involving women, including minors, who became pregnant as a result of sexual offences, there is a growing need to allow abortion with a view to protect the well-being and health of such women.  Moreover, it is important that the law be relaxed where a continued pregnancy is likely to endanger a pregnant woman’s life, affects her physical or mental health permanently or results in severe malformation or abnormality of the foetus, which will affect its viability and compatibility with life.

The object of the Bill, therefore, is to amend the Criminal Code to authorise the termination of pregnancy only in the specified circumstances spelt out in the proposed section 235A, namely –

• the continued pregnancy will endanger the pregnant person’s life;
• the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant person;
• there is a substantial risk that the continued pregnancy will result in a severe malformation, or severe physical or mental abnormality of the foetus, as assessed by the appropriate specialists, and
• the pregnancy has not exceeded its fourteenth week and results from a case of rape, sexual intercourse with a female under the age of 16 or sexual intercourse with a specified person, which has been reported to the police or medical practitioner.

I shall later inform the House of the Committee Stage amendments I propose to bring to the new section 235A.

Mr Speaker, Sir, there has been a lot of outcry recently to the effect that abortion is being legalised.  Let me emphasise that this is an erroneous understanding of the proposed amendments.  We are not introducing abortion on demand.  We are simply allowing abortion in the specified circumstances which have been enumerated.  The Government strongly believes that a choice should be given to the woman.  She should have a choice between life and death.  She should be able to choose whether to carry on with a pregnancy if she has been the victim of a rape or incest.

I wish to inform the House that there have been a number of consultation sessions in the course of the drafting of this piece of legislation.  As far back as 2009, the then Ministry of Women’s Rights, Child Development and Family Welfare had organised a consultation session on the subject of abortion with different stakeholders, following which a number of written representations were submitted to it, mostly by women’s organisations and socio-religious bodies.  Those representations were submitted to the Ministry of Health and Quality of Life and to my Office for consideration.

I must report that the views and proposals of the Ministry of Health and Quality of Life and the Ministry of Gender Equality, Child Development and Family Welfare were sought, and due consideration has been given to the proposals made by these Ministries, as well as to the representations submitted by the relevant stakeholders in 2009.  The Ministry of Health and Quality of Life has been consulted on technical and medical aspects, and has confirmed it has no objection to the provisions of the final draft Bill.

Mr Speaker, Sir, moreover, the views of the Director of Public Prosecutions, the National Human Rights Commission, and the Law Reform Commission have also been sought on the Bill.  Their suggestions have been taken on board in the finalisation of the Bill.

Mr Speaker, Sir, I have also had a number of meetings with a number of persons and organisations in relation to the present legislation. It is very important that I list them –

• in December 2011, I met the members of the Common Front on Abortion, namely the Mauritius Family Planning Association, Women in Networking and Muvman Liberasyon Fam and received their written representations;
• on 16 February 2012, I met Dr. Anthony Silverstone, Consultant in Obstetrics & Gynaecology and Gynaecological Oncology at the University College Hospital, London. Most of his suggestions have been taken on board;
• on 14 May 2012, I again met the members of the Common Front on Abortion.

Not later than last week, I attended a debate organised on the Bill at the University of Mauritius during which members of the medical and legal professions expressed their views on specific issues. I wish here to thank the organisers, and especially Dr. Zeenat Aumerally for having organised this meeting in record time.

Termination of pregnancy in specified cases is something I have always thought strongly about, even before I started my law degree. Little did I know that, I would be the one piloting the Bill one day.

Mr Speaker, Sir, indeed, it is gratifying to note that the Bill has received a positive response from several opposition parties which shows that on matters affecting public health, and the well-being of our citizens we can rise above party politics.

The interest in the Bill over the past month has been beyond expectations. It has been a lively but sober debate, with people expressing their views, frankly and fearlessly, without any “dérapage”. This bears testimony to our mature democracy and our culture of mutual respect and tolerance.

I have read almost every press report on the Bill, and followed exchanges on the internet and Facebook. I have also made it a point to listen to almost every radio programme on the issue. I have paid particular attention to the qualms expressed by those against the Bill and only yesterday I had a warm, friendly and constructive meeting with Mgr. Maurice Piat, Bishop of Port Louis and Mgr. Ian Ernest, Archbishop of the Province of the Indian Ocean.

I have also discussed with hon. Members of the Opposition whose support has been most encouraging. I have, in particular, discussed proposed amendments with the hon. Leader of the Opposition in a constructive and consensual spirit, and Government has taken on board most of his suggestions. I shall later say more about the Committee Stage amendments as I move on.

Mr Speaker, Sir, I shall now deal with the specific provisions of the Bill.

Under clause 3, section 235 of the Criminal Code is amended by –

• replacing the term “abortion” by “termination of pregnancy”;
• providing a derogation from that section;
• replacing the words “quick with child”, which have always caused confusion, by the words “pregnant woman”; and
• replacing the words “physician, surgeon,” by the words “medical practitioner”, in line with the Medical Council Act.

It is clear that termination of pregnancy by a medical practitioner will still be an offence except in the limited cases to be specified in section 235A of the Criminal Code.

Clause 4 is the most important clause in the Bill. Under this clause, a new section 235A is inserted in the Criminal Code to authorise the termination of pregnancy in the specified circumstances I have previously listed. Section 235A also provides for a number of safeguards. Under subclause (1), no person shall provide treatment to terminate a pregnancy unless he is registered as a specialist in obstetrics and gynaecology under the Medical Council Act, he provides the treatment in a prescribed institution and he complies with all the requirements of that section.

Existing subclause (2) provides that the specialist may only provide treatment to terminate a pregnancy where another specialist in the relevant field shares his opinion, formed in good faith, that the pregnancy falls under the specified circumstances set out therein. I have received certain representations to the effect that it would be an additional safeguard for more than one specialist in obstetrics and gynaecology to be involved. For this reason, I shall, at Committee Stage be moving to amend existing subclause (2) to provide that the specialist may only provide treatment to terminate a pregnancy where another specialist in obstetrics and gynaecology and another specialist in the relevant field share his opinion, formed in good faith, that the pregnancy falls under the specified circumstances set out in the said subclause.

In the light of certain concerns expressed in relation to subclause (2)(c), I shall, at Committee Stage, move to delete the words “, as assessed by the appropriate specialist” and replace them by the words “which will affect its viability and compatibility with life”.

Mr Speaker, Sir, a number of concerns have also been expressed in relation to subclause (2)(d) which provides that the pregnancy must not have exceeded its fourteenth week and must have resulted from a case of rape, sexual intercourse with a female under the age of 16 or sexual intercourse with a specified person which has been reported to the Police or a medical practitioner. In particular, concerns have been expressed about the possibility of false reports being made.

I have given consideration to these concerns and I recognise that this is a potential problem which we should guard against.

Let me stress, however, that we believe that, in most cases, the woman victim will be speaking the truth to the Police, and the medical practitioners will base themselves on their medical examination (relying, where necessary, on the opinion of a psychologist or sexual trauma expert) or DNA evidence to form the opinion in good faith that the pregnancy results from one of the sexual offences specified in the Bill.  The alleged sexual offence will have to be necessarily reported to the Police.  The possibility of also reporting to a medical practitioner which was provided for to make the procedure less oppressive for the victim will be removed at Committee Stage.

With regard to the minority of cases where a woman may be tempted to make a false declaration of rape in order to procure a termination of her pregnancy, the law should be made more severe to act as a strong deterrent. Sections 297 and 298 of the Criminal Code already provide for the criminal offences of false and malicious denunciation in writing and effecting public mischief, and we could have trusted the Magistrates of our courts to impose a very harsh sentence in such circumstances. However, in the face of the disquiet expressed in some quarters by no less than the Director of Public Prosecutions himself, we are providing for a distinct offence.

The Director of Public Prosecutions was consulted yesterday in relation thereto and he is agreeable to same.

I shall, therefore, at Committee Stage, be moving for a new subclause (3) to be added which will provide that, notwithstanding sections 297 and 298 of the Criminal Code, any person who, for the purpose of procuring treatment to terminate pregnancy, knowingly makes a false declaration of rape, sexual intercourse with a female under 16 or sexual intercourse with a specified person to the Police shall commit an offence and shall, on conviction, be liable to penal servitude for a term not exceeding 10 years. The existing subclauses (3) to (9) will be renumbered as (4) to (10).

Existing subclause (3) further provides that the specialist shall not terminate a pregnancy unless he has obtained the informed consent of the pregnant person. Such informed consent shall be given by the pregnant person in writing or by affixing her thumbprint to a written statement read out to her.

Mr Speaker, Sir, under existing subclauses (4) and (5), where the pregnant person is under the age of 18 or is severely mentally disabled or is in a state of continuous unconsciousness, the written informed consent of the appropriate person may be obtained.

Existing subclause (6) provides that, where appropriate, counselling shall be provided to the pregnant person before and after the termination of pregnancy. This will ensure that, in appropriate cases, women will be provided with adequate support to help them overcome any physical or psychological effect of abortion. In the light of concern expressed by many, including in medical quarters, I shall, at Committee Stage, be moving for the deletion of the words “where appropriate” so that counselling will have to be provided to a pregnant person before and after termination of pregnancy invariably in all cases.

Under existing subclause (7), no person shall, by means of coercion or intimidation, compel or induce a person who is pregnant to undergo treatment to terminate a pregnancy against her will, and, under subclause (8), any person who contravenes this section shall commit an offence for which he shall be liable to imprisonment for a term not exceeding 5 years and to a fine not exceeding Rs100,000 .

Mr Speaker, Sir, under clause 5, consequential amendments are brought to the Medical Council Act to provide for a working regime for the proposed amendments to the Criminal Code. In particular, a new section 38A is inserted in the Medical Council Act which –

(a)          provides the parameters within which a person may refuse to participate in any treatment to which he has a conscientious objection;

(b)          gives the Permanent Secretary of the Ministry of Health or a public officer deputed by him the power to enter and inspect any institution providing the said treatment, to obtain any information from the person in charge and to examine and make copies of or extracts from any record or other document relating to a treatment;

(c)           creates offences where any person discloses confidential information in relation to a record or treatment without the consent of the pregnant woman, obstructs the Permanent Secretary or the public officer deputed by him in the exercise of his functions or otherwise contravenes that section, and

(d)          empowers the Minister of Health to make regulations in relation to matters which are necessary for the proposed regime to operate.

Mr Speaker, Sir, my colleagues may wish to note that in its Concluding Report of 3-21 October 2011 under the United Nations Convention for the Elimination of Discrimination Against Women (CEDAW), the CEDAW Committee has called upon Mauritius to expedite the enactment of the proposed Bill in order to remove punitive measures imposed on women who undergo abortion and to decriminalise abortion in certain circumstances. Indeed, I am grateful to Mrs Pramila Patten, member of the CEDAW Committee for having expressed support for the Bill and placed it in perspective in the light of laws in other jurisdictions as well as our international obligations under treaties such as CEDAW. With the present Bill, it is felt that Mauritius will finally be able to honour its international obligations.

We consider that the proposed Bill will considerably help women who would otherwise have to go through pregnancies in difficult circumstances. Many women undergoing difficult pregnancies resort to clandestine abortions carried out in most unsafe, often “butcherous” conditions by non-professionals which often result in severe complications to the women’s health and, at times, death. Likewise, it is against a woman’s human dignity to force her to bear a child for 9 months where that child is the fruit of an aggression, a crime, a sin.

Mr Speaker, Sir, this Government is committed to bring changes that will impact positively on the lives of all Mauritians and we shall not stop in our endeavour.

As I stated before, this Bill is revolutionary and, to a large extent, it also marks a turning point in the fields of women’s rights and medicine in Mauritius.

I would particularly like to thank Dr. the hon. Prime Minister for his support and guidance throughout the preparation and finalisation of the Bill.  I also thank the hon. Vice-Prime Minister and Minister of Finance, the hon. Minister of Health and Quality of Life and the hon. Minister of Gender Equality, Child Development and Family Welfare for their collaborations.

I thank the doctors from the Ministry of Health and Dr. Anthony Silverstone from University College Hospital, London, for their expert views on the medical aspects of this legislation.  My thanks also go to the Common Front set up to support the Bill with Mrs Lindsey Collen and collaborators, and to all individuals, non-governmental organisations and socio-religious bodies who or which have expressed their views and suggestions, both for and against the Bill. Finally, I thank my colleagues from Government, the hon. Leader of the Opposition and several Members of the Opposition for their encouragement and support.  A special note of thanks to my officers and Sir Victor Glover, our Legal Consultant, who have worked diligently in the preparation and finalisation of the Bill.

Mr Speaker, Sir, with these words, I commend the Bill to the House.

The Prime Minister rose and seconded.

12.06.2012

The Attorney General (Mr Y. Varma): Mr Speaker, Sir, may I start off by expressing my sincere thanks to all hon. Members who have intervened on this Bill.  On such an issue, it is difficult to reach an absolute consensus, and we have to agree to disagree.  I must say that I respect the personal views and positions taken by all in this debate.

I have listened with great interest to the arguments which have been put forward.  I again thank the hon. Prime Minister for his support and intervention.  We have listened to 52 interventions, and the debate which has spread over five parliamentary sittings has generally been of a very high standard.

I seize the opportunity to thank you, Mr Speaker, and the Deputy Speaker for the dexterity with which you both presided over the debates.  I thank the hon. Leader of the Opposition for generally supporting the Bill.

However, he had three reservations.  Firstly, he stated that we should ensure that the requirement to have two specialists in obstetrics and gynaecology does not cause undue delay.  The process should be smooth and rapid.  He also referred to the law in the UK, stating that proposals are now being made to have only one doctor.

Mr Speaker, Sir, let us not forget that the UK abortion law dates back to 1967.  It is not surprising that the UK feels comfortable with a system put in place, and is now considering a proposal to rely on the opinion of only one doctor.  We, on the other hand, are making a start in Mauritius in 2012, and we have, in fact, agreed to the proposition of the hon. Leader of the Opposition to have the opinion of two specialists instead of one in obstetrics and gynaecology and one in the relevant field.  This will be a very strong and necessary safeguard.  It will reduce the likelihood of wrong opinions being reached.

As far as the delay issue is concerned, the Ministry of Health and Quality of Life will prevent undue delays, as stated by the hon. Minister.  I understand that pools of appropriate specialists will be available to deal with the matter.

Secondly, the hon. Leader of the Opposition, the hon. First Member for Savanne and Black River and other hon. Members expressed reservations about how these specialists will be able to form an opinion on whether the pregnancy results from rape, sexual intercourse with minor or incest.  I have been informed by colleagues from the medical profession that it is not difficult, following a medical examination of the pregnant person, to conclude whether the pregnancy results from an offence of rape, in view of the physical and mental trauma suffered.

I must also state that we are not reinventing the wheel with this formula. This specific provision has been inspired from South Africa’s choice on Termination of Pregnancy Act 1996, although I hasten to add that what we are proposing in the Bill contains better safeguards.

Section 2 (1)(b) (iii) of South Africa’s legislation: a pregnancy may be terminated from the thirteenth up to and including the twentieth week of the gestation period if a medical practitioner, after consultation with the pregnant woman, is of the opinion that the pregnancy results from rape or incest.

In South Africa it is, therefore, sufficient for a medical practitioner after he has examined the pregnant woman to form such an opinion; nothing more is provided as safeguard there.  However, in this Bill we are taking the care to include the following safeguards –

(1)  The opinions of not one, but three specialists have to be sought.

(2)  The opinion is not in relation to whether the offence of rape, sexual intercourse with minor under sixteen or incest has been proved.

If we read the wordings of the proposed Section 235A to (d) carefully together with the relevant amendment, which I shall be moving at Committee Stage, it is in relation to an opinion formed in good faith that the pregnancy results from a case of rape, sexual intercourse with minor or incest which has been reported to the Police.  A priori, therefore, these specialists will have to ascertain whether the matter has been reported to the Police.

(3)  Thirdly, any false declaration will constitute a criminal offence.  What has to be ascertained, first of all, is whether such allegation has been reported to the Police.  The specialist will then have to form an opinion in good faith whether the pregnancy results from such an offence.

Mr Speaker, Sir, the third point raised by the hon. Leader of the Opposition was that swearing of an affidavit by victims of rape or incest to the effect would have had more of a deterrent effect.  The swearing of an affidavit will necessitate going through certain administrative steps, for example, going through an attorney, getting the paperwork done and going to court.  As a result, it is bound to take more time and may prove a daunting experience for the victim.  What we are proposing instead, that is, the requirement to have the case reported to the Police is straightforward and practical.  Moreover, the penalty for making a false declaration will be penal servitude for a term not exceeding ten years which is much stronger than that for swearing a false affidavit.  The aim behind this is to have a powerful deterrent effect on the rare women who may be inclined to make false declarations of rape or incest in order to have the pregnancy terminated.

The hon. Third Member for Stanley and Rose Hill, the hon. First Member for GRNW and Port Louis West, the hon. Second Member for Port Louis North and Montagne Longue, the hon. Second Member for Beau Bassin and Petite Rivière, the hon. Second Member for La Caverne and Phoenix, and a few other hon. Members have raised several qualms about the Bill; many of which have already been answered by my colleagues, the hon. Minister of Health and Quality of Life, the hon. Minister of Housing and Lands, the hon. Third Member for Belle Rose and Quatre Bornes has also answered a number of issues raised.

Mr Speaker, Sir, international human rights law as well as courts worldwide have clearly established that any prenatal protection must be consistent with women’s human rights.  As far as 1973, the United States Supreme Court decision in Roe and Wade established that a woman has a right to self-determination covering the decision whether or not to carry a pregnancy to term, but that this right must be balanced against a State’s interest in preserving foetal life.  In the case of Tremblay and Daigle, 1989, the Supreme Court of Canada held that a foetus has no legal status in Canada as a person either in Canadian common law or in Quebec civil law.

Mr Speaker, Sir, the hon. Third Member for Vacoas and Floreal and the hon. Third Member for GRNW and Port Louis West spoke about our international obligations.  The Beijing Platform for Action 1995, to which Mauritius is a party, thus expressly called upon Governments to re-examine abortion laws that punish women.  The CEDAW, the Committee on the Elimination of Discrimination against Women, recommended Mauritius to, I quote –

“Consider reviewing the law relating to abortion for unwanted pregnancies with a view to removing punitive provisions imposed on women who undergo abortion, in line with the Beijing Platform for Action.”

Mr Speaker, Sir, I would also wish to reassure the hon. Third Member for GRNW and Port Louis West, who referred to the case of the minor who is a victim of incest and whose parents would not give their consent to the pregnancy resulting from the incest being terminated.  Once the young pregnant person reports the offence to a teacher, a doctor, a friend, members of the medical or paramedical profession and members of the staff of the school, have the duty, under Section 11 of the Child Protection Act, to notify immediately the Permanent Secretary of the Ministry of Gender Equality, Child Development and Family Welfare who may then promptly apply to the District Magistrate for an emergency protection order.  Such an order confers on the Permanent Secretary authority where necessary for the welfare of the child to cause her to be submitted to medical examination or to urgent treatment.

I have no doubt, Mr Speaker, Sir, that a victim of incest should be removed from the household of her aggressor and that the Permanent Secretary could, in such circumstances, authorise the termination of pregnancy which results from incest.

The hon. Third Member for Port Louis Maritime and Port Louis East expressed the rather extraordinary view that the specialist would be usurping the function of the Judiciary by finding in effect, a person guilty of the offence of rape, sexual intercourse or incest.  I must say, I had some difficulty understanding the hon. Member on this issue.  It is quite clear that the specialists are not concerned with the offender, but with the victim.  The identity of the offender is, in fact, irrelevant, except in the case of incest.  What matters is that the offence has to be reported to the Police.  It would be dealt with by the appropriate authorities.  Unfortunately, the outcome of the case cannot be awaited.  It suffices for the purposes of this Bill that the offence was reported to the Police and that the specialists are of the opinions in good faith that the pregnancy results from such an offence.  Many hon. Members have spoken about the delay in prosecuting and hearing of rape or incest cases.  I assure the House, Mr Speaker, Sir, that I have taken good note of those representations and will convey them to the appropriate authorities.

Mr Speaker, Sir, we cannot close our eyes to regional and international provisions and judgments.  We live, after all, in a global village.  As a responsible Government, we are bringing this legislation to address real existing problems and above all to provide relief to vulnerable girls and women.  We are only giving them the choice in limited circumstances rather than there being no choice at all.  Do the women of this country do not deserve to be given the right to choose!  Let me hasten to add, however, that I do not believe or wish termination of pregnancies as envisaged by this Bill to be the panacea for teenage pregnancy.  I fully endorse the views expressed by both sides of the House in favour of enhanced sexual education for teenagers in the light of stark modern realities.

As I stated in my Second Reading speech, we are about to create history.  By voting for this Bill, we will be changing the lives of many girls and women in a positive way.  Once again, I am very grateful to the hon. Prime Minister for his relentless support and vision.  A change in the law was long overdue and without the vision and commitment of this Government, it would not have been possible to move forward.

Before I end, Mr Speaker, Sir, allow me, again, to express my thanks to all hon. Members who have contributed to and enriched this debate.  I wish to inform the House that I will be moving for a division of votes at Third Reading.  I thank you all for your kind attention.

Question put and agreed to.

Bill read a second time and committed.

COMMITTEE STAGE

(Mr Speaker in the Chair)

THE CRIMINAL CODE (AMENDMENT) BILL

(NO. VIII OF 2012)

Clauses 1 and 2 ordered to stand part of the Bill.

Clause 3 (Section 235 of principal Act amended)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma:  Sir, I move that in clause 3(b), the words “section (1)” be deleted and replaced by the words “subsection (1)”.

Amendment agreed to.

Clause 3, as amended, ordered to stand part of the Bill.

Clause 4 (New Section 235A inserted in principal Act)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma:  Sir, I move for the following amendments in clause 4, in the proposed section 235A –

(i)   in subsection (2), by deleting the words “specialist in the relevant field shares” and replacing them by the words “specialist in obstetrics and gynaecology and another specialist in the relevant field share”;

(ii)  in subsection (2)(c), by deleting the words “, as assessed by the appropriate specialists” and replacing them by the words “which will affect its viability and compatibility with life”;

(iii) in subsection (2)(d), by deleting the words “or a medical practitioner”;

(iv) by inserting, after subsection (2), the following new subsection, subsections (3) to (9) being renumbered (4) to (10) –

(3)        Notwithstanding sections 297 and 298 of the Criminal Code, any person who, for the purpose of procuring treatment to terminate pregnancy, knowingly makes a false declaration of rape, sexual intercourse with a female under 16 or sexual intercourse with a specified person to the police shall commit an offence and shall, on conviction, be liable to penal servitude for a term not exceeding 10 years.

(v)        in subsection (4), as renumbered, by deleting the words “(4) and (5)” and replacing them by words “(5) and (6)”;

(vi)       in subsection (7), as renumbered, by deleting the words “Where appropriate, counselling” and replacing them by the word “Counselling”;

Amendments agreed to.

Clause 4, as amended, ordered to stand part of the Bill.

Clause 5 (Consequential amendments)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma: Sir, I move for the following amendment –

In clause 5(a), in the proposed section 38A(6), in the definition of “prescribed institution”, by deleting the words “subsection (4)” and replacing them by the words “subsection (5)”.

Amendment agreed to.

Clause 5, as amended, ordered to stand part of the Bill

Clause 6 ordered to stand part of the Bill.

The title and enacting clause were agreed to.

The Bill, as amended, was agreed to.

On the Assembly resuming with Mr Speaker in the Chair, Mr Speaker reported accordingly.

Third Reading

On motion made and seconded, the Criminal Code (Amendment) Bill (No. VIII of 2012) was read a third time.

Mr Varma:  Sir, I move for a division.

(Division Bells were rung)

1. Hon M. K. Seeruttun
2. Hon P. Roopun
3. Hon K. Ramano
4. Hon Mrs M. J. Radegonde
5. Hon L. S. Obeegadoo
6. Hon D. Nagalingum
7. Hon K. C. Li Kwong Wing
8. Hon P. K. Jugnauth
9. Hon P. Jhugroo
10. Hon Mrs S. B. Hanoomanjee
11. Hon A. K. Gungah
12. Hon Mrs L. D. Dookun-Luchoomun
13. Dr. the Hon. S. Boolell
14. Hon N. Bodha
15. Hon Mrs P. K. Bholah
16. Hon. V. Baloomoody
17. Hon J. C. Leopold
18. Hon D. S. Khamajeet
19. Hon A. R. G. M. Issack
20. Hon A. H. Hossen
21. Hon J. H. T. Henry
22. Hon. P. G. Assirvaden
23. Dr. the Hon B. Hookoom
24. Hon Ms M. G. S. Anquetil
25. Hon Ms K. R. Deerpalsing
26. Hon R. A. Bhagwan
27. Dr. the Hon R. R. Hawoldar
28. Hon M. Peetumber
29. Hon P. R. Bérenger
30. Hon S. Moutia
31. Hon Mrs M. F. Martin
32. Hon J. Seetaram
33. Hon S. Dayal
34. Hon S. C. Sayed Hossen
35. Hon L. Bundhoo
36. Hon J. Sik Yuen
37. Hon M. Choonee
38. Hon L. H. Aimée
39. Hon S. Ritoo
40. Hon L. J. Von-Mally
41. Hon T. Pillay Chedumbrum
42. Dr. the Hon R. Jeetah
43. Hon D. Virahsawmy
44. Dr. the Hon V. Bunwaree
45. Hon Mrs S. Bappoo
46. Dr. the Hon A. T. Kasenally
47. Hon A. Bachoo
48. Hon X. L. Duval
49. Dr. the Hon A. R. Beebeejaun
50. Dr. the Hon Prime Minister

AYES: 50

1. Hon. M. R. C. Uteem
2. Dr. the Hon M. R. Sorefan
3. Hon S. Soodhun
4. Hon Mrs L. N. Ribot
5. Hon J. P. F. Quirin
6. Hon Mrs A. Navarre-Marie
7. Hon G. P. Lesjongard
8. Hon Mrs F. Labelle
9. Hon E. J. R. Guimbeau
10. Hon. J. F. François
11. Hon. C. M Fakeemeeah
12. Hon. J. C. Barbier
13. Hon M. Ameer Meea
14. Hon Mrs M. J. Perraud

NOES: 14

1. Hon A. Ganoo

ABSTENTION: 1

1. Hon. Mrs K. B. Juggoo
2. Hon. S. Mohamed
3. Hon. S. V. Faugoo
4. Dr. the Hon. A. K. Boolell

ABSENT: 4

AYES: 50       NOES: 14       ABSTENTION: 1                 ABSENT: 4

Mr Speaker: The Ayes have it.

The Criminal Code (Amendment) Bill (No. VIII of 2012) was read a third time and passed.

            The Attorney General (Mr Y. Varma): Mr Speaker, Sir, I beg to move that the Environment and Land Use Appeal Tribunal Bill (No. IV of 2012) be read a second time.

Mr Speaker, Sir, this Government’s motto, as is evident from the Government Programme 2012-2015, is “Moving the Nation Forward”.  And one of the means of achieving this objective and making sure that our society does truly and effectively move forward.

Paragraph 31 of the Government Programme states, and I quote –

“Several existing Tribunals, including the Environment Appeal Tribunal where major projects are currently the subject of litigation, will be consolidated to enable them to sit full time so that cases are heard and disposed of expeditiously while ensuring cost effectiveness and rationalization in the use of resources”.

In the Budget Speech of 2012, Mr Speaker, Sir, it was mentioned at paragraph 326 that to speed up decisions on appeal cases, Government will be consolidating twelve Appeal Tribunals into three, namely an Environment and Land Use Appeal Tribunal, a Revenue and Valuation Appeal Tribunal and a Regulatory Authority Appeal Tribunal.

Mr Speaker, Sir, this Bill when voted and proclaimed will set up the Environment and Land Use Appeal Tribunal. As hon. Members of the House are probably aware, the Environment Appeal Tribunal (“EAT”), established under the Environment Protection Act in order to hear and determine appeals relating to Environmental Impact Assessment (EIA) licences and Preliminary Environmental Reports (PER), provided for in the Environment Protection Act.

Secondly, the Town and Country Planning Board (“Board”), established under the Town and Country Planning Act and which, inter alia, hears appeals relating to Outline Planning Permissions and Building and Land Use Permits, presently operate on a part-time basis given that the Environment Appeal Tribunal is chaired by a Magistrate of the Intermediate Court on assignment by the Public Service Commission to perform duties on a part-time basis, and the Board, as per section 3(1)(a) of the Town and Country Planning Act, is chaired by a person not below the rank of Principal Assistant Secretary.

Mr Speaker, Sir, in view of the fact that the tribunal is not operating on a full-time basis, appeals lodged before the EAT and also before the Board are taking longer to be heard and disposed of.  Mr Speaker, Sir, several major projects are currently the subject of litigation before these “tribunals”.  In fact, there are presently 14 appeals before the EAT and about 300 outstanding appeals before the Town and Country Planning Board.  There is, therefore, an urgent need to expedite the hearing and determination of cases given that time is of the essence in such types of appeals.

This Bill, Mr Speaker, Sir, therefore aims at merging the Environment Appeal Tribunal and the Town and Country Planning Board into a single Tribunal with a full-time Chairperson and vice-Chairperson, with a view to expediting the determination of appeal cases lodged in relation to environment and land use-related issues.  This will allow the Town and Country Planning Board to devote more time to its major functions, such as the preparation of outline and detailed schemes.

The Bill thus provides for the establishment of a single Tribunal which shall operate on a full-time basis and shall hear appeals relating to matters that are directly or indirectly related to the environment and the manner in which land is made use of.  The Tribunal will accordingly deal with –

• Building and Land Use Permits and Outline Planning Permissions issued or refused by Municipal City Councils, Municipal Town Councils and District Councils under the Building Act, the Local Government Act 2011 and the Town and Country Planning Act;
• morcellement permits granted or refused under the Morcellement Act;
• Environmental Impact Assessment licences and Preliminary Environmental Report approvals granted or refused under the Environment Protection Act.

Mr Speaker, Sir, I must point out that the draft Bill was circulated among various stakeholders, including the hon. Chief Justice, the Ministry of Housing and Lands, the Ministry of Environment and Sustainable Development, the Ministry of Local Government and Outer Islands, the Town and Country Planning Board, and the Environment Appeal Tribunal for their views and comments, and due consideration has been given to the representations made in the finalisation of this Bill.

Mr Speaker, Sir, I shall now take the House through the salient features of the Bill. The Tribunal, which is established under clause 3 of the Bill, shall in fact consist of –

–           firstly, a Chairperson, who shall be a barrister of not less than 10 years’ standing, appointed by the Public Service Commission;

• secondly, one or more vice-Chairpersons (which is a totally new provision), who shall be a barrister or barristers of not less than 5 years’ standing, appointed by the Public Service Commission, and
• thirdly, such other members as may be necessary to enable the Tribunal to discharge its functions under the Act and the relevant Acts as defined in the Bill.

Moreover, under clause 3(4) of the Bill, where the subject matter of an appeal relates to a technical field, the services of a suitable expert can be enlisted in the field, to act as member of the Tribunal on an ad hoc basis for such period as may be necessary.

It is also to be noted that by virtue of clause 3(2) of the Bill, the Chairperson and the vice-Chairperson may be called upon by the Public Service Commission to act as Chairperson or vice-Chairperson of any tribunal established under any other enactment.

Mr Speaker, Sir, another major improvement which this Bill seeks to bring about is that by virtue of clause 3(5) of the Bill, the Tribunal shall sit in one or more divisions.  Furthermore, provision is made under clause 3(5)(c) of the Bill for a division to be set up on a temporary basis for a period not exceeding one year, where there is a backlog of cases before the Tribunal.  This will ensure that the Tribunal is not, from the day of its establishment, hampered in its functioning due to such backlog of cases.

Provision is also made in the Bill for the appointment of a Secretary to the Tribunal, and for the Secretary to Cabinet and Head of the Civil Service, at the request of the Chairperson, to designate such public officers as may be necessary to enable the Tribunal to discharge its functions under the Act.

As regards the jurisdiction of the Tribunal, it is, under clause 4(1) of the Bill, given jurisdiction to hear and determine appeals under the Environment Protection Act, the Local Government Act 2011, the Morcellement Act and the Town and Country Planning Act.  Moreover, I would here like to draw the attention of the House to the fact that power is also given, under clause 4(2) of the Bill, to the Chairperson or, in his absence, the vice-Chairperson, in respect to any matter which is due to be heard by the Tribunal, on application made to him by a party, to sit alone for the purpose of making such orders, including an order in the nature of an injunction, as he thinks fit, where he is of opinion that, for reasons of urgency and the likelihood of undue prejudice, it is necessary to do so pending the hearing of the matter.

Mr Speaker, Sir, as matters presently stand, parties have to lodge an application for an injunction before the Judge in Chambers in order to stay an Environment Impact Licence and Preliminary Environment Report, the above provision will consequently render remedies like injunctions more accessible and ensure speedier justice.

As far as proceedings of the Tribunal are concerned, they are, subject to clause 5 of the Bill, to be regulated by the Tribunal itself.  The procedure for the holding of proceedings and the lodging of appeals before the Tribunal, and the powers of the Tribunal are therefore set out in clause 5.

It is here worth noting that proceedings of the Tribunal are to be conducted with as little formality and technicality as possible and shall not preclude an endeavour by the Tribunal to effect an amicable settlement between the parties.  Furthermore, by virtue of clause 5(5) of the Bill –

“A party before the Tribunal may be represented by a barrister or an attorney or, with the leave of the Tribunal, be assisted by a person having expertise in the subject matter of the appeal”.

Insofar as appeals are concerned, a time limit of 90 days is provided for under clause 5(7) for the Tribunal to hear and make a determination, except where there is a valid reason, and with the consent of the parties.

Furthermore, clause 6 of the Bill, which relates to appeals to the Supreme Court, makes provision for any party who is dissatisfied with the final decision of the Tribunal, in relation to an appeal under clause 4 as being erroneous in point of law, to appeal to the Supreme Court.  Such appeals are to be prosecuted in the manner provided by rules relating to appeals from final judgments of a District Court in civil matters.

As for clause 7, it provides for the making of rules by the Tribunal, for the purpose of the institution and hearing of appeals before it.

Clause 8, for its part, makes consequential amendments to the Environment Protection Act, the Local Government Act, the Morcellement Act, the Planning and Development Act and the Town and Country Planning Act in order to give jurisdiction to the Tribunal to hear and determine the matters specified in that clause.

Finally, Mr Speaker, Sir, clause 9 of the Bill (which relates to transitional provisions) provides, inter alia, that where the hearing of any matter, or appeal from the decision of the Board or the Environment Appeal Tribunal has at the commencement of the Act started before the Board or the EAT, the Judge in Chambers or the Supreme Court, as the case may be, that matter shall continue to be dealt with by the Board, the EAT, the Judge in Chambers or the Supreme Court, as the case may be, until final determination.

As regards the hearing of matters which have not started, but are pending at the commencement of the Act, before the Board or the EAT, those matters shall, at the commencement of the Act, be taken up and determined by the Tribunal.

Mr Speaker, Sir, the grouping of different tribunals under the umbrella of a sole Tribunal will not only reduce administrative costs and ensure an efficient and better use of resources and logistics, but will also impact favourably on future investment given that the delay caused to the whole process of obtaining approvals, licences and permits will be considerably reduced.  This will, therefore, undoubtedly lead to an environment more conducive to promote and enhance business and investments.

I am therefore of the opinion, Mr Speaker, Sir, that the Bill being proposed today should be favourably welcomed.

I will end by thanking colleague Ministers for their support in the finalisation of the Bill.  A special thanks to my officers, including Mrs Gaitree Manna, the actual Master & Registrar, for their unflinching support and cooperation.

With these words, Mr Speaker, Sir, I commend the Bill to the House.

The vice-Prime Minister, Minister of Public Infrastructure, National Development Unit, Land Transport & Shipping (Mr A. Bachoo) rose and seconded.

Mr Varma: Mr Speaker, Sir, I would like, first of all, to thank hon. Ministers who have intervened and congratulate them.  I would like to extend my congratulations to hon. Ganoo, hon. Bhagwan and hon. François as well for their interventions.

Mr Speaker, Sir, I will go one by one on the points that were raised by hon. Members.  Hon. Ganoo raised the point that environment and land use should not have been lumped together.  Actually, Mr Speaker, Sir, it is clear from the action of Government and what Government tends to do, that there should be judicious use of resources.  We do agree that these two aspects, environment and land use, are distinct, but they are not so different as to make them incompatible.  Therefore, so as to make judicious use of resources, it is the policy of Government that these two, that is, the Board and the Environment Appeal Tribunal, should be merged.

Mr Speaker, Sir, the point was raised by the hon. First Member for Savanne and Black River as regards the 90 days from the start of the hearing, that is, the determination should be made.  It cannot be from the time of lodging, Mr Speaker, Sir, because what if 20 cases are lodged on the same day!  Indeed, reference has, time and again, been made by Members of the Opposition to the Planning Appeal Tribunal.  Actually, in the Planning Development Act which was passed in 2004, it was clear that the Tribunal would endeavour to dispose of the matter within six months. There was no exact time frame that we have put in our law.  In this Bill, Mr Speaker, Sir, there is a time frame of 90 days, unless there is consent of parties for the time frame to be extended.

Mr Speaker, Sir, as regards the question of cost, the hon. First Member for Savanne and Black River raised the point. Under clause 5 (10) (a), the Tribunal may make such order as it thinks fit as to the costs payable by the losing party.  It means that this is catered for by the Bill. As far as the declaration of assets is concerned, under clause 7, it is said –

“The Tribunal may make such rules for the purpose of the institution and hearing of appeals before the Tribunal as it deems fit.”

Mr Speaker, Sir, as regards the backlog of cases, the Chief Justice has been consulted and he is in perfect agreement that a Senior District Magistrate would be delegated full-time to chair the special division to be able to clear the backlog. This is catered for again, Mr Speaker, Sir.

There is a pertinent point which was raised by the hon. First Member for Savanne and Black River, and I am thankful to him, as regards clause 8 (5) (b). I am thankful to him for having drawn the attention of the House. There is obviously an editorial error which will be taken care of at editorial level, Mr Speaker, Sir.

As regards the members of the Tribunal, the point has been raised by several Members of the Opposition. Again, the members of the Tribunal will be appointed in consultation with the hon. Minister of Environment, the hon. Minister of Local Government and the hon. Minister of Housing and Lands. There is a provision that consultation should also be held with the hon. Minister of Civil Service.  Why is it so, Mr Speaker, Sir?  It is because we do not want to have people who do not have experience. That is why there is a requirement that the Attorney General shall consult the hon. Minister of Civil Service as well, to get people who have experience in the relevant fields, whether they have retired or not.

Mr Speaker, Sir, a point was raised by hon. Rajesh Bhagwan as regards the cases which are pending before the Tribunal for the CT Power and Gamma Coventa. The CT Power case is before the Tribunal and Gamma Coventa case is before the Environment Appeal Tribunal and, as per the transitional provisions, these will be dealt with by the existing Tribunal.  It is only cases which are pending, but have not yet been heard, that will be dealt with by the new Tribunal.

Mr Speaker, Sir, hon. François raised a couple of points as regards sittings in Rodrigues. Clause 5 (2) (a) of the Bill clearly states –

“The Tribunal shall sit at such time and place as the Chairperson may determine.”

If necessary to sit in Rodrigues, there is no doubt that the Chairperson will determine that the Tribunal will sit in Rodrigues.

Mr Speaker, Sir, it is quite sad that hon. Seeruttun is not here because normally when certain points are raised by a hon. Member, he has to be here in order to hear the other side of the story, of course.  He stated, Mr Speaker, Sir, that the Environment and Land Use Tribunal will not respond to the needs.  Mr Speaker, Sir, we have taken the initiative to set up this Environment and Land Use Appeal Tribunal.  Why have we taken the initiative?  It is because we all know that there are several cases which are taking so much time to be heard before the Town and Country Planning Board and the Environment Appeal Tribunal.  We have taken the initiative to set up a full-time Tribunal, with a full-time Chairperson and vice-Chairperson so that the appeals are heard and disposed of within the shortest possible delay.

He raised the point, as hon. Minister Mohamed rightly pointed out, that the Prime Minister said that a special tribunal will be set up to deal with the CT Power case. Mr Speaker, Sir, this has never been the case!  How can he say such things, and just throw mud on whatever the Government is trying to do and then walk away?  Mr Speaker, Sir, the hon. Prime Minister stated that we are going to set up a tribunal, the Environment and Land Use Tribunal, to deal with the environment and land use issues, and that’s all. At no point in time, Mr Speaker, Sir, did the hon. Prime Minister state that a special tribunal will be set up to deal with the CT Power case!

Mr Speaker, Sir, again, he stated that the Tribunal a été taillé sur mesure.  What does that mean? Quelle mesure, and to do what?  Is it to hear appeals with the shortest possible delay?  Is it to encourage investment in the country?  Is it to send a right signal to the business community?  If he does mean taillé sur mesure pour ces choses, we agree!  But what did he try to insinuate, Mr Speaker, Sir?  What did he try to infer by saying that the Chairperson or the vice-Chairperson have already been selected?  Mr Speaker, Sir, we, on this side of the House, believe in institutions; we believe in the independence of institutions.

(Interruptions)

Mr Speaker, Sir, even before this Tribunal is set up, to throw mud on such an institution, that the Government has already chosen the Chairperson and vice-Chairperson, when they have to be appointed by the Public Service Commission!  Mr Speaker, Sir, they will go in history as people who have always been against good things in this country.

Mr Speaker, Sir, the point was also raised by the hon. Second Member for Vieux Grand Port and Rose Belle that the Chairperson should be a Barrister with management qualifications. Mr Speaker, Sir, the Magistrates that we have before our courts, the Judges that we have, do they not administer the courts well?  Is that what he is trying to say?  We have so many Magistrates and Judges in this country, and we cannot cast a shadow of doubt on the integrity and independence that they have shown.

The last point that was raised was about giving too much power to the Chairperson when we say that injunctions will be heard before the Tribunal. The point was canvassed by hon. Ganoo, the First Member for Savanne and Black River, and he praised the Government for that initiative, Mr Speaker, Sir.

Mr Speaker, Sir, I should say that I was quite surprised to hear the intervention of the hon. Second Member for Port Louis South and Port Louis Central, when he spoke about the requirements as per this Bill that the vice-Chairperson should have at least 5 years’ standing at the Bar.

“No person shall be qualified for appointment as a Judge of the Supreme Court unless he is, and has been for at least 5 years, a Barrister entitled to practise before the Supreme Court.”

Where does that 10 years come from, Mr Speaker, Sir?  Is the hon. Member trying to mislead the House?

(Interruptions)

Mr Speaker: Sorry, the hon. Minister must withdraw the words “trying to mislead the House.”

Mr Varma: I have withdrawn, Mr Speaker, Sir. Again, the hon. Member has time again stated that the Members will be political appointees, that they will be appointed by the Attorney General, and in consultation with the Ministers concerned.  Mr Speaker, Sir, the hon. Member has referred time and again to the Planning Development Act, and in that Act it is clear, under section 53, that –

“The Members would have been appointed again by the Attorney General, in consultation with the Ministers concerned”.

So, which is which?  When they did it in 2004, there was no political interference, and when we import the same logic in this piece of legislation, then it is political!  Mr Speaker, Sir, which is which?

Mr Speaker, Sir, again the hon. Member raised the point that the appeal to the Supreme Court that we have put in this Bill should be on a point of law.  The hon. Member has criticised it.  When they did it in 2004, section 60 –

“The appeal to the Supreme Court will be on a question of law.”

then it was correct. When we do it, we are wrong. The hon. Member again criticised that the decision of the Tribunal should be of the majority.  When they did it in 2004, section 59(4) –

“A re-appeal before the Tribunal shall be determined by the opinion of the majority members present.”

then they were right, and we are wrong today.  Mr Speaker, Sir, which is which?

As regards damages, clause 8, …

(Interruptions)

I am sorry, if you want to say anything, you can stand up and speak.

(Interruptions)

Mr Speaker: Hon. Minister, do address the Chair!

Mr Varma: He is in a sitting position, Mr Speaker, Sir, and he made an insinuation.

Mr Speaker: Please, sit down.  Do you have a point of order?

Mr Varma: Mr Speaker, Sir, on a point of order.  I am intervening, and from a sitting position …

Mr Speaker: That is not a point of order.

Mr Varma: Yes, the hon. Member has made an insinuation against me.

Mr Speaker: What is the insinuation?

Mr Varma: I won’t bother to repeat that, Mr Speaker, Sir, because I won’t reduce myself to his level.

Mr Speaker: Please, sit down. You are addressing the Chair and not the hon. Member. You address me, and if there is a point of order, you raise it.

Mr Varma: What I have said, Mr Speaker, Sir, is that I won’t reduce myself to his level, that’s all.  Mr Speaker, Sir, again the hon. Member has got the guts and the courage to stand up in Parliament to criticise.  He said that we don’t know the elementary rules of drafting, Mr Speaker, Sir, as if we have to learn from him.

Mr Speaker: Can I remind the hon. Minister that a Member of this House has the right to stand up and criticise the Bill, so long that he is criticising the Bill within the framework of the Standing Orders?  If the hon. Minister does not agree with the criticism, he has just to reply to him, but he cannot use the word that he has not the right to do this or that.  The hon. Member has the right to criticise.  It is the right of the hon. Minister to reply to the hon. Member.

Mr Varma: This is precisely what I’ll do, Mr Speaker, Sir.

Mr Speaker: Yes, but don’t try to use provocative words.

Mr Varma: Yes, but I find it …

Mr Speaker: No, I have given my ruling, and you have to respect my ruling.  Don’t use provocative language at this time of the hour.

Mr Varma: This is what I am doing, Mr Speaker, Sir.  Mr Speaker, Sir, the hon. Second Member for Constituency No. 2 stood up in Parliament and said that those who have drafted the Bill don’t know the elementary rule of drafting.  I should remind the House that this piece of legislation – I have stated that in the Second Reading speech – was sent to the hon. Chief Justice, and the hon. Chief Justice consulted a team of judges.  Mr Speaker, Sir, again, we have got an experienced Parliamentary Counsel in the person of Mrs Narain.  We have got a consultant in the person of Sir Victor Glover, a former Parliamentary Counsel and former Chief Justice of Mauritius.  We have Mr Dhiren Dabee who vetted his Bill.  He is the Solicitor General, a Senior Counsel and former Parliamentary Counsel.  Mr Speaker, Sir, with these people around in the office, we have to learn the elementary rules of drafting from someone else!  The House will appreciate …

(Interruptions)

Mr Speaker: Order! Address the Chair!

Mr Varma: Mr Speaker, Sir, again the last point that I wish to rebut.  The hon. Second Member for Constituency No. 2 stated that the Planning and Development Act was never enacted.  Mr Speaker, Sir, what does enactment of the law mean?

(Interruptions)

Mr Speaker: Order! Let me listen to the hon. Minister.

Mr Varma: What does enactment of the law mean, Mr Speaker, Sir?  It means it goes through Parliament; it is passed and receives the presidential assent.  Well, the House will appreciate.

Mr Speaker, Sir, I think I have replied to most of the points raised by hon. Members, and I again commend the Bill to the House.

Question put and agreed to.

Bill read a second time and committed.

Mr Speaker, Sir, this Government has, since assuming Office, placed reforms to our legal system to the forefront of its agenda and has shown its commitment to modernising the present system, reducing delays and enhancing access to justice.

The aim of this Bill is to amend the Courts Act to deal with vexatious litigation in order to prevent the obstruction of the judicial system by vexatious litigants.

The Bill accordingly provides that the Supreme Court may, on an application made by the Attorney General, declare a person to be a vexatious litigant where that person has habitually, persistently and without any reasonable ground instituted vexatious legal proceedings or made vexatious applications in any proceedings.

Mr Speaker, Sir, it has been noted that vexatious proceedings are on the rise. This has the effect of seriously undermining the judicial system and draining the resources of the Judiciary. My own Office has, in the recent past, been flooded by such cases. In fact, I am informed that some 50 cases have been instituted by a single litigant.

In its report dated October 2010, the Law Reform Commission, after analysing the law pertaining to vexatious litigation in a number of Commonwealth countries including New Zealand, Australia and India, recommended that the Courts Act be amended to enable the Supreme Court, where it is satisfied that a person has persistently started vexatious proceedings or made similar applications in any court, to make an appropriate order so as to restrain the start of such proceedings or the making of such applications.

Mr Speaker, Sir, it might, at first sight, seem inimical to the right of access to justice to provide for keeping vexatious litigants out of our Courts. However, as aptly put by Lord Clarke, then Master of the Rolls in England, in a speech delivered on 30 June 2006 and entitled “Vexatious litigants and access to justice: Past, present, future”, vexatious litigation has the capability of undermining the rule of law. If Courts are required to utilise their scarce financial and temporal resources on vexatious claims and applications, their ability to promptly deal with claims and applications that have genuine merit will be diminished. Such claims may not be heard due to lack of time or resources. If the case is heard, a judgment may then be delayed for a lengthy period of time because the Judge has to spend precious time dealing with a vexatious litigant, or with other matters that have been referred to him to hear as a consequence of vexatious litigation generally. The fact that it has often been said, from Magna Carta to Bentham, that justice delayed is justice denied does not diminish the truth of this maxim.

Further, Court resources are certainly not infinite.  As was observed in the case of Attorney General v Ebert –

“Mr Ebert’s vexatious proceedings have been very damaging to the public interest; quite aside from the oppression they have inflicted on his adversaries.  The real vice here, apart from the vexing of Mr Ebert’s opponents, is that scarce and valuable judicial resources have been extravagantly wasted on barren and misconceived litigation, to the detriment of other litigants with real cases to try.”

Controls on vexatious litigation are, to my mind, consistent with the right of access to justice for the simple reason that vexatious litigation infringes that very right. Protecting individuals from litigation that infringes the right of access to justice in itself supports that right. It does so because it enables the Court to maximise access to justice for litigants who have genuine claims.

Yet another reason to legislate against vexatious litigation is that one of the central elements of the right of access to justice is that disputes are adjudicated within a reasonable time. Delay or denial of a hearing as a result of vexatious litigants consuming disproportionate amounts of the Court’s time and financial resources represents a restriction on the right of other individuals’ very own right of access to justice.

Another no less important justification militating in favour of legislating against vexatious litigants is that it can justifiably be said that vexatious litigation does not in any event engage the right of access to justice. It does not because that right is the right to have genuine disputes carefully adjudicated on the merits. The dispute that the vexatious litigant brings is in most cases one which has already been carefully and properly adjudicated.  The vexatious claim is thus one which abuses the court’s process.  The right of access to justice is not a right to abuse the court’s process.  Restrictions placed on an individual’s ability to bring abusive proceedings cannot therefore infringe the right of access to justice.

Mr Speaker, Sir, having briefly set out the policy underpinning this Bill, I will  address the first question one will be tempted to ask, how does the Attorney General become informed about potential vexatious litigants?  Members of the public will be expected to request my office in writing to apply for an order.  There will be no formal procedure for such complaints.  The Attorney General’s Office will then undertake an analysis of the conduct of the individual concerned and the proceedings initiated by him in the past, and then decide whether or not to bring proceedings to have the person declared a vexatious litigant.

It will then, Mr Speaker, Sir, be for the Supreme Court to determine whether the person should be declared a vexatious litigant.

I shall now refer to the crucial test which is provided for, in clause 3, to determine who is a vexatious litigant. The operative words in the proposed section 197(F) of the Courts Act are “habitually and persistently.” Lord Bingham explained in Attorney General v. Banker 2000(1) the meaning of the words ‘habitually and persistently’ –

“The hallmark usually is that the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, thereby imposing on defendants the burden of revisiting claim after claim; that the claimant relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, in actions against successive parties who, if they were to be sued at all shall be joined in the same action; that the claimant automatically challenges every adverse decision on appeal, and that the claimant refuses to take any notice of or give effect to order of the Court. The essential vice of habitual and persistent litigation is keeping on and on litigating where earlier litigation has been unsuccessful and where on any rational and objective assessment the time has come to stop.”

Clause 3 of the Bill also deals with the procedure for declaring a person a vexatious litigant and it provides an in-built safeguard that a litigant will have the opportunity to be heard before he is declared to be a vexatious litigant.  I have to point out that, before a person is declared a vexatious litigant, he will be entitled to a hearing and will, therefore, be able to make representations.  In addition, it is open to a person who has been declared a vexatious litigant to prove to the Supreme Court that he has a sustainable cause of action and he will then be allowed to proceed with litigation, provided he obtains leave from the Supreme Court.

The control of vexatious litigants is thus entirely in the hands of the Courts who are duty-bound to safeguard a litigant’s constitutional rights and who will, no doubt, ensure that the powers given to the Supreme Court by dint of the proposed amendments are used to curtail vexatious litigation, uphold the rule of law and enhance access to justice.

Mr Speaker, Sir, this Bill also provides that no appeal shall lie from a decision refusing leave to a vexatious litigant to institute legal proceedings or make any application in legal proceedings in any court. This is consistent with Mauritian law in that our Constitution does not guarantee a right of appeal in all cases.  It is apposite to note that in the UK, there is similarly no right of appeal granted to a person who is refused leave to proceed with his case subsequent to being declared to be a vexatious litigant. In the UK, there is similarly no right of appeal granted to a person who is refused leave to proceed with his case subsequent to being declared to be a vexatious litigant. In Bhamjee and David Fordstick, a 2000 case, Lord Phillips, at paragraph 49, referred to the Strasbourg principles in the Belgian Linguistics where it was held that Article 6 of the European Convention on Human Rights on which section 10 of our Constitution is modelled did not guarantee a right of appeal, but that where it was granted there should be no discrimination unless there was a legitimate reason. The European Court observed in that case that –

“… Article 6 of the Convention does not compel States to institute a system of appeal Courts. A State which does set up such Courts consequently goes beyond its obligations under Article 6. However, it would violate that Article, read in conjunction with Article 14, were it to debar certain persons from these remedies without a legitimate reason while making them available to others in respect of the same type of actions.”

Further, it is also worth noting that section 81 of the Constitution of Mauritius which provides for a right of appeal to the Judicial Committee of the Privy Council from final decisions of the Supreme Court excludes from its ambit “final decisions of a court that any application made to it is merely frivolous or vexatious” subsection (4) of section 81 of the Constitution.

It is interesting that, even at the time of framing our Constitution, it had already been contemplated that the Judicial Committee of the Privy Council could potentially face frivolous and vexatious appeals and to prevent such an abuse, our Constitution explicitly prohibited such appeals. Our aim, in introducing this amendment to the Courts Act, is guided by what already exists in our Constitution as a filter for appeals before the Judicial Committee of the Privy Council and reflects a need, in view of the numerous cases of vexatious litigation, to control vexatious litigation before our Courts and enhance access to justice.

For the sake of clarity,  Mr Speaker, Sir, I wish to add that the proposed amendment would not prevent a person from appealing against an order, under the proposed section 197F (1) of the Courts Act, declaring him to be a vexatious litigant.

Mr Speaker, Sir, we have listened to comments from the other side of the House and in order to remove any confusion, we are spelling out in the amendment to be made…

Mr Speaker: Sorry, we have not heard Members making comments…

Mr Varma: From outside the House Mr Speaker, Sir.   In order to remove any confusion rather, we are spelling out in the amendment to be made at Committee stage, which has already been circulated, that the application to declare a person as a vexatious litigant will be heard before a single Judge.  An appeal will then lie from that decision to the Court of Civil Appeal by virtue of section 3 of the Court of Civil Appeal Act.  The Explanatory Memorandum will, of course, be edited in the light of the amendment made at Committee stage.

It is only after the vexatious litigant has sought and been denied leave to institute and continue proceedings that he will have no right of appeal from the decision of the Court refusing leave. It may nevertheless be contemplated that a vexatious litigant may seek special leave from the Judicial Committee of the Privy Council to appeal from a decision of the Supreme Court refusing him leave to institute and continue proceedings.

Mr Speaker, Sir, this Bill will have the effect of enhancing the rule of law and providing better access to the judicial system to meritorious litigants. Safeguards have been in-built to provide for a right of hearing before a person is declared a vexatious litigant. By adopting this Bill, we shall be following in the footsteps of several Commonwealth jurisdictions, where legislation on vexatious litigants has been tried and tested over a number of years.

Mr Speaker, Sir, with these words I commend this Bill to the House.

Mr Virahsawmy rose and seconded

(8.03 p.m)

Mr Varma: Mr Speaker, Sir, first of all, I would like to reply to a few points raised by the hon. Leader of the Opposition.  But, in fact, I don’t understand the stand of the Opposition.  The Leader of the Opposition stood up in this House and stated clearly that he is in favour of something against vexatious litigation, having been himself a victim in the past, and now, I hear from Members of the Opposition, in his absence, that they are against a legislation to deal with vexatious litigation.  Which is which, Mr Speaker, Sir?

I would like to reply to the hon. Leader of the Opposition and also to the hon. Third Member for Constituency No. 1, when they referred to the tone in which I replied to the comments made by the Opposition.  Mr Speaker, Sir, I replied because they were doubting the good intentions of Government.  They were saying that they see the reforms being brought every week with some suspicion; whether there is a motive behind what the present Government is doing.  It is simple, Mr Speaker, Sir!  We have taken a commitment.  When Dr. the hon. Prime Minister was Prime Minister in 1995, there was the Mackay Report which came out, which shows the commitment of the current Prime Minister to reforms in the Judiciary.

Mr Speaker, Sir, the hon. Leader of the Opposition stood up in this House and said ‘yes, you have got a young and fresh Attorney General, but he has to learn.’  Mr Speaker, Sir, when the same Leader of the Opposition says that I need to chair a Select Committee on Med Point, when he suggests that I should chair a Select Committee on the exams being held by the Council of Legal Education, when a few weeks back, he stood up in Parliament and congratulated me on a Bill that I am bringing in Parliament, then I don’t have anything to learn, Mr Speaker, Sir!

(Interruptions)

I had to say that, Mr Speaker, Sir.

Mr Speaker: No, he said that your tone was vexatious.

Mr Varma: Mr Speaker, Sir, in fact, there are three points which the Opposition has raised against the Bill.  The first one is on the question of appeal.  Mr Speaker, Sir, the special leave to the Judicial Committee of the Privy Council will be there when the leave is refused by a Judge of the Supreme Court.  The Judicial Committee of the Privy Council is the master of its own procedure; it is not fettered by a local Act of Parliament.  I think this should clear the air.

They have paid a qualm about the Attorney General making the application.  Mr Speaker, Sir, have they forgotten the role of the Attorney General as regards ministère public?  When a case is heard before the Supreme Court, and they await the conclusions of ministère public, where does that go to?  Does not that go to the Office of the Attorney General?  Then, there is no problem that the Attorney General is a Member of Cabinet? When there are disciplinary proceedings against law practitioners, Mr Speaker, Sir, and the Attorney General makes the application, then there is no problem that the Attorney General is a Member of Cabinet?  When a seat of a hon. Member has to be declared vacant, then there is no problem that the hon. Attorney General is a Member of Cabinet?  Have they forgotten, Mr Speaker, Sir?  They spoke about colourable device today! They should know who was Attorney General when the Supreme Court spoke about colourable device, Mr Speaker, Sir! Who was Attorney General at that time?  We have no lessons to learn, Mr Speaker, Sir.  Let me make it very clear.  They have stated that the Attorney General should not be in party politics.

Mr Speaker, Sir, does this House know that I was a Member of the Politburo of the Labour Party for so many years, but that this year the hon. Prime Minister told me that I am Attorney General and cannot be a Member of the Politburo?  What does that mean Mr Speaker, Sir?  When hon. Members from the other side of the House were Attorney General, did they leave their party?  Did they? No, Mr Speaker, Sir! This was never the case.

Mr Speaker, Sir, coming to this House and say that this Bill was not debated at the level of the Bar Council!  Mr Speaker, Sir, I am an ex officio member of the Bar Council.  Do hon. Members here know what was discussed at the Bar Council?  I am a member of the Bar Council!  I was present, Mr Speaker, Sir, at the meeting of the Bar Council.  I think, Mr Speaker, Sir, that it is improper to quote from what was discussed at a meeting.  I don’t know who leaked the information; this is very serious, and I am going to raise the matter at the next meeting of the Bar Council because, at no point in time, did the Chairperson of the Bar Council write to me, to inform me officially that the Bar Council is against this piece of legislation.

Mr Speaker, Sir, just coming in this House, hiding under parliamentary immunity to say that some judges have spoken to me.  Mr Speaker, Sir, hon. Minister Mohamed raised that point.  Who is the Head of the Judiciary?  The Chief Justice, Mr Speaker, Sir! And if there have been any qualms from the Judiciary, they should have written to me personally, written to us and say that this Bill is not correct.  But this has never been done, Mr Speaker, Sir.  In fact, Mr Speaker, Sir, this Bill was circulated a couple of weeks back and hon. Members of the Opposition spoke to me to tell me that – well, it’s not correct that we have got the three stages of the Bill coming at the same Sitting.  They raised qualms with the hon. Prime Minister but, Mr Speaker, Sir, we have nothing to hide.  That’s why we agreed that the Bill be postponed to be ventilated.

Again, the Bill was ventilated for two weeks.  Did we receive any representations?  No, Mr Speaker, Sir!  Well, Mr Speaker, Sir, again,…

(Interruptions)

Mr Speaker:  No comment!

Mr Varma: The hon. Third Member for Constituency No. 1 spoke about the Attorney General in the United Kingdom giving independent legal advice.  What is he trying to say, Mr Speaker, Sir?  What is he trying to say?  Is he trying to say that the Attorney General in Mauritius does not give independent legal advice?  Is that what he is trying to say?

(Interruptions)

Mr Varma:  Yes, I challenge him!  Go and say it outside!  Don’t hide under parliamentary immunity!

Mr Speaker: The hon. Attorney General cannot challenge!  Continue!

(Interruptions)

Mr Varma:  I am sorry, Mr Speaker, Sir, I have to reply.

(Interruptions)

Mr Speaker: Let me inform the hon. Attorney General that if there was anything objectionable about what the hon. Member said, I would have stopped him.

Mr Varma: Mr Speaker, Sir, hon. Uteem made a number of points and I would like to reply that the right to sue, like any other fundamental rights in our Constitution, is not absolute.  It’s subject to reasonable derogations.  Of course, litigants who are persistently making an abuse of the right to sue cannot be allowed to clog the machinery of justice, Mr Speaker, Sir.

Mr Speaker, Sir, the test is laid down by Lord Phillips in the case of Bhamjee and I have already referred to it during the course of my speech.  As far as targeting, Mr Speaker, Sir, they have time and again made the point that we are trying to target someone.  But, they should come forward with concrete proof.  Hon. Members on this side of the House, Mr Speaker, Sir, have raised the point.  You can’t just come to this House and say that this Bill is meant to victimize Mr ‘X’ without mentioning who he is, what he is doing, whether he has got cases before Court, what is his current locus standi.

Mr Speaker, Sir, this Bill is not meant to target anyone.  This Bill, Mr Speaker, Sir, is meant to protect the public and everyone from vexatious litigants. Mr Speaker, Sir, don’t hon. Members on the other side of the House – many of whom are Barristers – know how many vexatious litigants we have around?  How many cases are brought, Mr Speaker, Sir, by vexatious litigants?  I can now inform the House about ten people who are vexatious litigants but I won’t do so, Mr Speaker, Sir, of course.

(Interruptions)

But, this is the case, Mr Speaker, Sir, and they clog the system by making vexatious applications and by entering vexatious cases.  Therefore, this House should be convinced, Mr Speaker, Sir, that this particular piece of legislation is not meant to target anyone.  Let’s be clear about it.  Mr Speaker, Sir, in fact, hon. Uteem spoke about a draconian measure being introduced.  Hon. Baloomoody spoke about: are we moving towards abolition of appeals to the Privy Council?  Well, Mr Speaker, Sir, this is a figment of their imagination, that is all.  Where in this Bill, Mr Speaker, Sir, where in the speeches made in Parliament today, have we targeted the right of appeal to the Privy Council?  On the contrary, we have reiterated the right to appeal to the Privy Council.  Haven’t we, Mr Speaker, Sir?

The hon. First Member for Constituency No. 14 – well again, his arguments were not as virulent as he is counterpart but still he did oppose the Bill.  Mr Speaker, Sir, the hon. First Member for Constituency No. 14 spoke about India and made reference to the report of the Law Reform Commission of India on vexatious litigation.  But, Mr Speaker, Sir, as hon. Minister Faugoo stated, there are states in India who have adopted the legislation but it has not been implemented as a whole; say, for example, in Goa, there is the Goa Vexatious Litigation Prevention Act of 2007.  It will be, therefore, my submission, Mr Speaker, Sir, that, at no point in time, are we infringing on the rights of people, on human rights.

We are not targeting anyone. This Bill is good for the proper and efficient administration of justice.

Question put and agreed to.

Bill read a second time and committed.

The Attorney General (Mr Y. Varma): Mr Speaker, Sir, I beg to move that the Court Ushers (Amendment) Bill (No. IV of 2011) be read a second time.

Mr Speaker, Sir, the aim of this Bill is to amend the Court Ushers Act so as to liberalise the profession of usher, by enabling suitable persons, who are not public officers and who will be known as registered ushers, to serve or execute process. In the same breath, provision is being made for the manner in which registered ushers will exercise their profession and for the exercise of disciplinary control over them by the Chief Justice.

Mr Speaker, Sir, I believe it would be appropriate to start off by briefly considering the duties of a court usher. A court usher, Mr Speaker, Sir, is either attached to the Supreme Court, Intermediate Court or a District Court. His prime duty is to ensure that the day-to-day business of a Court runs smoothly. It is his responsibility to prepare a courtroom every morning by ensuring that Judges, Magistrates, Lawyers and the Jury, if any, have all the necessary equipment that they need before the court starts. He will then be in charge of coordinating all that happens in the courtroom, including maintaining order in court, calling of cases, calling of parties and witnesses, and administering oaths. In serious criminal cases where we have the jury, one or several ushers may be assigned the task of staying with them to prevent communication with unauthorised persons. In fact, Mr Speaker, Sir, a Court Usher is usually in attendance throughout the whole sitting of the court, which normally starts at 9.30 in the morning and may end at around 4.00 in the afternoon.

Mr Speaker, Sir, apart from these court duties, a Court Usher has other important tasks. He is responsible for serving and executing judicial and extra judicial process. He has to serve summons on accused parties in a criminal case, parties in a civil case and witnesses in both criminal and civil cases. A Court Usher may serve other documents like notice “mise-en-demeure”, injunctions issued by the Judge in Chambers or the Supreme Court, orders for immediate care and control of children, petitions for divorce and custody of children, plaint with summons, notice of motions to be made before the Supreme Court, notice of “commandement” prior to seizure of immoveable property. He is also in charge of executing writs and warrants issued by courts.

Other processes executed by a Court Usher include seizures of moveable and immoveable properties. He is also responsible for the sale by auction of moveable properties seized at the instance of private parties in civil cases, or forfeited by the courts in criminal cases.

Mr Speaker, Sir, Court Ushers therefore play a very important role in the good administration of justice in this country and have heavy responsibilities. It is not surprising that it is not always possible for them to discharge all their duties promptly.

Mr Speaker, Sir, the Presidential Commission, better known as “the Mackay Commission”, studied the role of Court Ushers in Mauritius and, in its report, recommended that, and I quote –

“We do not consider that it is necessary to prevent a continuation of the present arrangement under which the service of process, so far as it shall continue to be necessary, and the execution of judgment can be performed by ushers who are full-time public servants, but we recommend that it should be possible for a person properly qualified as an usher in accordance with the requirements laid down for that purpose to be authorised to act as an usher for the purpose of serving Court process or executing Court judgments by the Chief Justice if the Chief Justice is satisfied that he or she is suitably qualified and is a person of integrity appropriate to be granted a certificate to act as an usher.” Unquote

Mr Speaker, Sir, these recommendations were taken on board and the views of various stakeholders were sought on the changes to be made to the Court Ushers Act. I need to point out, Mr Speaker, Sir, that no reform concerning the Judiciary is carried out without consulting the Judiciary and colleagues from the legal profession. Comments and proposals were received from the honorable Chief Justice, the Director of Public Prosecutions, the Law Reform Commission, the Bar Council, the Mauritius Law Society and the Chamber of Notaries, and they are all broadly agreeable to the liberalisation of the profession.

However, I must report that the Court Ushers are themselves split on this issue. But, Mr Speaker, Sir, it is believed that the liberalisation of the profession of usher will be of benefit to the public at large since competition will bring about a better and more cost-effective service to the citizens.

Mr Speaker, Sir, Court Ushers should rest assured that the liberalisation of the profession of usher does not mean that the profession is being privatised. We have to be clear on this issue. Court Ushers are public officers appointed by the Public Service Commission and they will remain public officers. On the other hand, registered ushers will be those appointed by the Chief Justice and their duties will not be the same as Court Ushers. They will not generally be entrusted with the day-to-day business of the Court. They will only be responsible for serving and executing process as and when required by Attorneys or other persons, and will thus assist in the efficient and prompt execution of service, taking into consideration the growing number of both civil and criminal cases in our Courts and the fast pace of life nowadays.

Mr Speaker, Sir, having described the role to be played by registered ushers, allow me at this stage to elaborate on the salient features of the Bill.

Clause 3 of the Bill sets out the amendments to be made to section 1A of the Court Ushers Act with regard to the definitions of “Court Usher” and “registered usher”. The definition of “Court Usher” is amended to make it clear that Court Ushers remain public officers.

I hasten to add, Mr Speaker, Sir, that through some regrettable oversight a few words are missing from the clause.  Clause 3 (a) of the Bill should read, in fact, “in the definition of Court Usher’ by inserting after the words ‘Usher of a Court’, the words ‘who is a public officer and’.  I do apologise for any inconvenience, although I am sure that hon. Members will have correctly understood the purpose of the amendment, even without the omitted words.  I understand that the Clerk will do the needful for this editorial mistake to be corrected.

A new definition of “registered usher” is also being provided for. It states clearly that registered ushers are only those persons who will be appointed as such under section 26B(3) (a) of the Court Ushers Act and that Court Ushers are not included among registered ushers.

Clause 5 of the Bill causes new sections 26A to 26H to be inserted in the Court Ushers Act. The new section 26A provides that registered ushers are to be governed by the regime provided for in the new sections 26A to 26H.

The new section 26B will provide that any citizen of this country may apply to the Chief Justice to be appointed as a registered usher where he holds such qualifications, and has passed such examination, as may be prescribed by rules made under the Court Ushers Act and satisfies the Chief Justice that he is of good character. The Chief Justice may appoint a person who fulfils the above conditions and furnishes the required security as a registered usher. Notice of the appointment shall be given in the Gazette by the Master and Registrar.

The new section 26C provides for a security to be entered into by a registered usher for him to be of good behaviour, to perform his duties efficiently and to comply with the Court Ushers Act. This security may be made available, by order from a competent Court, for the payment of any damages, interest and costs to a person who has retained his services. Furthermore, the Chief Justice may, in the exercise of disciplinary proceedings against a registered usher, order that the security entered by him be forfeited by the State.

The new section 26D sets out the duties of registered ushers. As I have indicated above, registered ushers may serve or execute judicial or extra-judicial process when their services are retained by an attorney or other person. They will not generally be authorised to perform the duties prescribed for Court Ushers. However, exceptionally, the Master and Registrar may request a registered usher to perform the duties of a Court Usher on payment of such allowance as the Chief Justice may determine for a limited time.

The new section 26E provides for the payment of prescribed fees and travelling allowance to a registered usher where his services have been retained by an attorney or another person, while the new section 26F provides for the duties of a registered usher with respect to entries in respect of specified matters to be made in a register. As regards the new section 26G, it provides that failure by a registered usher to comply with his statutory duties or the commission by him of a wrongful act may lead to disciplinary proceedings being instituted against him and that his appointment being suspended for a period not exceeding 12 months or revoked, following the institution of a disciplinary tribunal by the Chief Justice. The new section 26H sets out offences related to the exercise by the registered usher of his duties.

Mr Speaker, Sir, the introduction of the Court Ushers (Amendment) Bill is yet another important step in the implementation of the recommendations made by the Mackay Report. It also illustrates the strong commitment of this Government to bring about necessary reforms within the legal profession and that of the Court personnel. In my humble submission, this Bill strikes the right balance by safeguarding the interests of all parties concerned and making an important distinction between the role of a Court Usher and that of a registered usher.

I am confident that the liberalisation of the profession of usher is an important element of fair and efficient justice and that it will benefit litigants and society at large.

With these words, Mr Speaker, Sir, I commend the Bill to the House.

Mr Faugoo rose and seconded.

Mr  Varma: Mr Speaker, Sir, I would like to thank and congratulate the hon. Minister for Information and Communication Technology and the hon. Second Member for Constituency No. 10, for their interventions, but I should inform the House that I am shocked and stunned by the stand taken by the Opposition, by stating that there is a piecemeal reform and also, that the piecemeal reforms can raise suspicion.  Mr Speaker, Sir, I didn’t think that the Opposition can be of such bad faith.

Mr Speaker, Sir, we have, over the couple of weeks, been coming to this House with Bills in order to modernise the legal system.  Mr Speaker, Sir, had we come at one go with all the Bills, they would have said that it is reform by ambush.  Now, when we are consulting all the stakeholders, we are coming forward with Bills which have been ventilated, we are faced with criticisms.  The hon. Third Member for Constituency No. 1 wanted to know where we are going, Mr Speaker, Sir, with the reforms in the judiciary.  He is well aware, Mr Speaker, Sir, that commitments have been given in this House that we are revisiting the Law Practitioners Act.  Commitment has been given in this House, Mr Speaker, Sir, that we are working on an Institute for Judicial Legal Studies Bill.

Mr Speaker, Sir, they are well aware.  They have participated in the consultation process on the Bills to set up the Court of Appeal.  They have been consulted, Mr Speaker, Sir, and they are well aware that we are working on the reforms to the legal aids system.  Mr Speaker, Sir, can the Opposition be of such bad faith?  I wonder!

Mr Speaker, Sir, the point raised by the hon. Third Member for Constituency No. 1, that we are putting the delay at the doorsteps of court ushers.  Mr Speaker, Sir, I did intervene on this Bill at the beginning.  At no point in time, did I mention that we are putting the blame on the Court Ushers.  What this piece of legislation intends to do, is to improve the system, Mr Speaker, Sir.  That is all.  We have never put the blame on X, Y or Z.  I said in my speech that the Court Ushers are divided on the subject.  I have maintained the same stand throughout.  I was put questions in this House, Mr Speaker, Sir, and I answered, and I again state to the House today; because only yesterday, some Court Ushers came to see me, to congratulate me on the introduction of this Bill in the National Assembly.

Mr Speaker, Sir, the other stakeholders were consulted.  I did state that the Judiciary, the Bar Council, the Law Society, the Law Reform Commission, the Office of the DPP were all consulted and we had to take a decision, Mr Speaker, Sir, on the balance when we saw the benefits.  Again, Mr Speaker, Sir, the Opposition speaks about reforms in the Judiciary.  In their programme, Mr Speaker, Sir, they speak about the Mackay reforms and when we are implementing the recommendations of Mackay, they are criticising.  Well, Mr Speaker, Sir, which is which, I don’t know.

Mr Speaker, Sir, the point was raised again, whether we are creating quicker justice for the rich. Mr Speaker, Sir, the present Court Ushers will continue to function as such.  If people want the Court Ushers – who are public officials – to serve or execute process, they still have the option to do it.  So, where is the problem, Mr Speaker, Sir?  Well, as far as, to put the public and private ushers at par, they are going to work on the different terms and conditions.  I don’t see how they can be put at par.  The same applies to health and education sectors, to name just a few, Mr Speaker, Sir.  These are a few points which were raised and I have replied to all the points raised by the hon. Members.

Question put and agreed to.

Bill read a second time and committed.

(10.56 p.m.)

The Attorney General (Mr Y. Varma): Mr Speaker, Sir, the Government Programme, at paragraph 23, states, inter alia, that Government will introduce a new Bail Act and that Courts will be able to impose a curfew mechanism on detainees and order them to wear electronic bracelets.

The Law Reform Commission, in its annual report for the year 2009 and in its report on “Bail and other related issues” has recommended the introduction of electronic monitoring devices, which will monitor the location of a detainee who has been granted bail, as one of the conditions for the release of a detainee on bail.

Before bringing amendments to an Act as important as the Bail Act, it was imperative to engage in a wide-ranging process of consultation. In that regard, I chaired several meetings, which were attended by various stakeholders including –

(a)        the Prime Minister’s Office;

(b)        the Office of the Director of Public Prosecutions;

(c)        the Police, and

(d)        The Ministry of Finance and Economic Development (which was present due to the financial implications of the Bill).

I have to add that my office also had the benefit of Sir Victor Glover, Kt, GOSK, Legal Consultant to my office, in the drafting of this Bill.

Further, the Bill was circulated to the Bar Council, which endorsed the proposed amendments. I have to add that one member of the Bar Council, expressed some reservations as to whether the new proposed amendments, more particularly clause 8 of the Bill, will make the granting of Bail more restrictive. This view was not shared by other members of the Bar Council and by my office.

The Judiciary was also consulted in relation to this Bill and I have to add that the Master and Registrar, has informed my office that the Chief Justice will make arrangements for Court sittings on Saturdays, Sundays and public holidays from 1000 to 1400 to deal with hearing of Bail applications made by persons arrested during weekends, on Fridays and on the eve of public holidays. Mr Speaker, Sir, I will refer to my reply to PQ B/597 wherein I assured the House, upon a question put by the hon. Second Member for Port Louis South and Port Louis Central that the law in relation to weekend custody will be reviewed. Mr Speaker, Sir, not only have we taken on board what the hon. Member has requested ,but we have gone one step further as we have consulted the Judiciary and have received the commitment from the Judiciary that there will be Magistrates available to hear bail motions on Saturdays, Sundays and public holidays. This is a marked improvement on the concept of duty Magistrates and will no doubt reinforce the constitutional right to liberty of our citizens.

Mr Speaker, Sir, this Bill aims at revamping the Bail Act with a view to providing a better framework for the administration of the statutory provisions pertaining to bail.  The Bail Act dates back to 1999 and has been amended in 2002, in 2004 and in 2009. The amendments brought to the Bail Act were not of a comprehensive nature and the draft Bill aims at significantly improving the legislation which is of paramount importance both in respect of law and order and respect for human rights.

Mr Speaker, Sir, the Bail Act must be read together with sections 1 and 5 of the Constitution, which guarantee the right to personal liberty and which preclude any automatic denial of bail even when the suspect is charged with the most serious offences. As investigations have become more complex, it is crucial to have modern methods of monitoring detainees at the pre-trial stage. It is in this context that the introduction of the electronic monitoring mechanism has to be seen. In the case of Islam v Senior District Magistrate, Grand Port District Court, 2006 Supreme Court Judgment 282, the Supreme Court observed as follows –

“10. The fundamental proposition of our law is that bail is a judicial matter so much so that even Parliament cannot by legislation seek to encroach on the power of the judiciary to deny bail to a defendant.  Our case-law on this aligns itself with that obtains in developed jurisdictions in the matter: more specifically, the Strasbourg jurisprudence on the European Convention, the text of which is very much similar to Chapter 2 of our Constitution, often referred to as our Bill of Rights.

24. Well-advised jurisdictions have addressed the issues with advance research and planning. A modern bail law in a society becoming more and more complex and impersonal, demands modern methods of monitoring. Logistics have combined with organisational structure, tools have vied with technology and means complemented with method. Thus, with all the guarantees of a citizen who is deemed innocent until proved guilty under our Constitution, the new devised system has treated its citizen released on bail in such a way that he is not released as a hazard whether for himself or the public.
25. Each country has developed its own home-grown system proper to its demography, land mass and other socio-geographical factors. For example, a good many countries as early as the eighties adopted the electronic tagging system. A device is placed on the person which sends a signal to a transmitter in the offender’s home and relays it to a central control. Where appropriate, this system is coupled with other conditions imposed on suspects such as night-time curfew, for example, from 19 00 to 07 00 hours, a ban on using mobile phones and the internet, obtaining permission from the authorities to meet anyone outside the home(…).
26. In Mauritius, the monitoring mechanism in bail administration has remained old fashioned. Our primitive tools and techniques are today the greatest obstacles to the promises of our law and to an enhanced promotion of the enshrined guarantees of our Constitution. They may also arguably present a serious and real threat to security. The ill-served detainee may be paying for the short-comings of our present system by his inevitable detention and the citizen by a compromise of his other human rights.”

Mr Speaker, Sir, having regard to the comments of the Supreme Court in the case of Islam, it is clear that we have, with this Bill, legislated to put our Bail Act in tune with modern times and in line with the right to liberty as enshrined in our Constitution.

• Mr Speaker Sir, in addition to the issues I have delved into before, I have to add that some other significant amendments which the Bill seeks to bring to the Bail Act are as follows – the introduction of a new section 3A, which provides that bail applications should be heard and determined within the shortest delay. I have to add that the hon. Chief Justice is in agreement with this proposed amendment.  Mr Speaker, Sir, the hon. First Member for Savanne and Black River raised the issue pertaining to delay in delivering bail rulings (in PQ B/587) and, as undertaken by me in this House, due consideration has been given to his views;
• the amendments to be brought to section 4(2) of the Bail Act purport to introduce new considerations which the Court may take into account before exercising its discretion to release a defendant or detainee on bail;
• grounds for refusing bail (under section 4(1) of the Bail Act) are clearly distinguished from factors or considerations (under section 4(2) of the Bail Act) to be taken into account when determining whether or not a defendant or detainee is to be released. It is proposed, in line with the view of the Office of the DPP, to amend section 4(1) (b) to introduce a new ground in relation to refusal of bail. This new ground is in line with the jurisprudence of the European Court on Human Rights and relates to the preservation of public order;
• the proposed amendment to section 5 of the Bail Act seeks to cater for the situation where a defendant or detainee is unable to provide surety. It will be possible with the amendment for the Court to impose conditions of a non-financial nature for his release on bail.  Such a provision will ensure that the Bail Act affords equal treatment to those who have means as well as those who do not;
• the proposed amendment to section 7 of the Bail Act will ensure that the legal framework, in relation to the other conditions, which may be imposed by the Courts for the release of a defendant or detainee on bail, is more comprehensive than the very general form in which the section actually stands. Thus, the proposed amendment sets out, in detail, some of the conditions which a Court may impose on a defendant or detainee who is granted bail, and further provides for the possibility of imposing the wearing of an electronic bracelet on a defendant or detainee who is released on bail;
• provision is also made in the proposed section 7(3)(c) of the Bail Act (to be introduced by clause 8 of the draft Bill) for a Court to impose a condition with regard to the restriction of the movement of the defendant or detainee after 6 p.m. This is usually referred to in other jurisdictions as a “curfew order”. This amendment is in line with the Government Programme 2010-2015, where it was proposed to introduce the concept of curfew orders in our law;
• section 12 of the Bail Act will be amended to allow a police officer not below the rank of an Assistant Superintendent of Police to release a detainee on parole during weekdays as well as during weekends, where the detainee cannot practicably be brought before a Magistrate. With such an amendment, the right to liberty of an individual will be further enhanced, as if the detainee will be kept in custody only if a police officer below the rank of Assistant Superintendent of Police certifies in writing that he has reasonable grounds to believe that, if released, the detainee is likely to fail to comply with section 12(2) of the Bail Act, to tamper with evidence, to interfere with witnesses, to commit another offence or to put his own security at risk;
• further, the draft Bill seeks to amend section 22 of the Bail Act to provide for harsher penalties, inter alia, for persons who breach conditions of bail and for sureties who fail to ensure that persons for whom they stood as surety adhere to the conditions imposed by the Court on them. This amendment, Mr Speaker, Sir, is also in line with paragraph 23 of our Government Programme 2010-2015;
• a new section 23 in the Bail Act to provide for the liability to be arrested for breach of conditions of bail. This new section will allow the police to monitor persons released on bail and ensure that persons who breach conditions of bail are faced with the real possibility that they will not be granted bail by a Court, which will have to determine whether such persons may be released on bail subject to the same or different conditions or should be remanded in custody.

Mr Speaker Sir, this Bill will provide the Police and our Courts with enhanced powers to ensure that defendants or detainees comply with conditions of bail. The Bill, therefore, aims to strike a proper balance, in accordance with our Constitution and human rights principles, between the right to liberty of the individual and the protection of society. We have sought and obtained the views of all relevant stakeholders and we have taken on board their concerns to come up with a Bill which represents a consensus in an area where the delicate balance between law and order and right to liberty requires a careful balancing exercise.

I will end, Mr Speaker, Sir, by thanking the officers who have worked hard on this piece of legislation.  I also thank all the other stakeholders who have contributed in the drafting of the Bill.

With these words, Mr Speaker, Sir, I commend the Bill to the House.

Mr Choonee rose and seconded.

(3.12 a.m.)

            Mr Varma: Mr Deputy Speaker, Sir, I would like, first of all, to thank all the hon. Members who have intervened on the Bill from both sides of the House.  I believe there is consensus on the Bill, but I will try to be as brief as possible in replying to the hon. Members.

Mr Deputy Speaker, Sir, the hon. third Member for Grand River North West and Port Louis West raised the issue – and this was also raised by the hon. First Member for Savanne and Black River as well – of the circular of the Police.  Mr Deputy Speaker, Sir, I do not believe it is for me to comment on the operational measures taken by the Commissioner of Police.  We should take comfort in the fact that there is a right to bail, and that the decision as to whether to release a person on bail is that of the Judiciary.

Mr Deputy Speaker, Sir, measures are to be put in place by the hon. Chief Justice to complement the proposed  section 3A, where mention is made that –

“The Court shall endeavour to hear and determine any application for bail within the shortest delay.”

Mr Deputy Speaker, Sir, in fact, we have included the wordings in section 3A of the Bill, and that shows that we are sending a respectful but clear message to the Judiciary regarding the plight of detainees.  It is not for us to interfere with the administration of justice.  In fact, I did inform the House in my speech that the Master and Registrar has written to me and informed me that there would be court sittings on Saturdays, Sundays and Public holidays.  We should rely on the words of the Judiciary as regards the commitment which has been taken.

There were also issues raised by hon. Members of the Opposition as regards court fees.  I replied to a question already on that, Mr Deputy Speaker, Sir, and I do understand that there is no firm decision which has been taken by the Judiciary, and the matter is still being discussed at the level of the Rules Committee.

Mr Deputy Speaker, Sir, again the hon. third Member for Grand River North West and Port Louis West raised the issue of ‘means’; why we have included ‘means’ in the Bill.  Mr Deputy Speaker, Sir, it is the first time that we are introducing non-financial surety.  The court will have to assess the means of the person to be able to impose the non-financial surety.

Concerning the other issues which were raised by the same hon. Member as regards community ties and associations, I will refer him to the case of Deelchand v. DPP, and I will briefly quote –

“The risk of absconding has to be assessed with regard to several factors. Considerations relevant to the risk of absconding will include the strength, weakness or absence of family, community, professional or occupational ties and financial commitments as such ties, if strong, might be strong incentives not to abscond and, if weak might increase the risk of absconding.”

Mr Deputy Speaker, Sir, again issues were raised as regards clause 23 of the Bill.  The surety, in fact, is responsible to ensure that the person for whom they stood as surety has to attend court.  This provision allows the surety to notify the police in writing if the person is unlikely to surrender to bail.  This amendment, in fact, places the responsibility on the surety to ensure that the person released on bail surrenders to the custody of the court.

Mr Deputy Speaker, Sir, as hon. Faugoo rightly pointed out, clause 23(3) should be read together with clauses 23(4) and (5), that is, where the person arrested should be brought to court as soon as practicable.

Mr Deputy Speaker, Sir, again, the hon. second Member for Constituency No. 2 raised a couple of points.  I have addressed one of them, that is, section 3A. As regards the point raised concerning the police and in what circumstances they should object to bail, I don’t think that it is for the legislator to prescribe when the police should object to bail, as it is for the Commissioner of Police to provide guidance to officers and the Judiciary to decide whether or not to grant bail.

Mr Deputy Speaker, Sir, again the hon. Second Member for Constituency No. 2 raised the issue as regards electronic monitoring mechanism and why it is restrictive.  I believe the issue was raised by the hon. First Member for Quartier Militaire and Moka as well.  In fact, I should inform the House that it is a very costly mechanism, and it will only apply to this restricted category for a start.  It will not, of course, be applied on the same scale as it is in the U.K.

Mr Deputy Speaker, Sir, several Members raised the issue about the new ground as regards public order.  I will draw the attention of the House to a Privy Council case, namely the case of Hurnam v. The State, wherein reference was made to the preservation of public order.

Mr Deputy Speaker, Sir, again, the hon. Second Member for Constituency No. 2 raised the issue as regards section 22, which provides at present for a fine of Rs5,000 – not Rs50,000 – and to imprisonment for a term not exceeding two years.  There is no section 23 at present.  Section 23 of the Bail Act was repealed.  We have checked that, Mr Deputy Speaker, Sir.

Mr Deputy Speaker, Sir, a few points have been raised by the hon. First Member for Quartier Militaire and Moka.  I will briefly reply to them.  I have already replied to the first one as regards section 23(3) which has to be read together with subsections (4) and (5).

As regards reporting, Mr Deputy Speaker, Sir, to a specified person or authority, as hon. Minister Faugoo has rightly pointed out, this is only to make the provision more flexible.  As regards specified person or authority, it is for the court to decide and, of course, in all logic, they will not tell a person to report to the institutions which the hon. Member has referred to.

The same points were raised, Mr Deputy Speaker, Sir, as regards time frame, and I have already replied to that.

Mr Deputy Speaker, Sir, there are many instances in this piece of legislation which have been applauded by one side of the Opposition, but I did not find that from the hon. First Member for Quartier Militaire and Moka. In fact, as I stated in my speech, there are many measures which are innovative and it is an improvement on the Bail Act which was passed in 1999.

Mr Deputy Speaker, Sir, the last point which was raised is as regards the subsection 5, which was repealed. Mr Deputy Speaker, Sir, in fact, section 85 of the District and Intermediate Courts (Criminal Jurisdiction) Act states, and I quote –

“A Magistrate may on the ground of poverty or for other reasonable cause exempt any person from the payment in whole or in part of any fee payable in any criminal proceedings entered before him (…)”

That replies to the qualm of the hon. Member.

Mr Deputy Speaker, Sir, I believe that I have been brief enough and I have replied to almost all the points raised by the hon. Members, I think.

Thank you.

Question put and agreed to.

Bill read a second time and committed.

The Attorney General (Mr Y. Varma): Mr Deputy Speaker, Sir, the objective behind the present Bill is to implement long awaited reforms in order to modernise not only our legal profession, but, more generally, our judicial and legal system.  It, therefore, comes to complement the Institute for Judicial and Legal Studies Act 2011, which came into operation on 01 October 2011.

This Bill, mainly seeks to implement certain recommendations of the Presidential Commission (chaired by Lord Mackay of Clashfern), the objective of which was, as hon. Members would recall, to examine and report upon the structure and operation of the judicial system and legal profession of Mauritius.

Mr Deputy Speaker, Sir, it is here worth highlighting that the Presidential Commission considered it highly desirable that courses should be organised for the continuing education of lawyers. It also recommended judicial studies and stated that such studies are vitally important to the success of the Judiciary.  It should be highlighted that judicial training and continuous professional development have already been introduced in many jurisdictions.

The Law Practitioners (Amendment) Bill is therefore being proposed so as to –

(a)          provide for the establishment of a Council for Vocational Legal Education (CVLE);

(b)          ensure that prospective law practitioners undergo an adequate period of training and pupillage;

(c)           make provision for law practitioners and legal officers to undergo Continuing Professional Development Programmes;

(d)          ensure that persons who wish to be considered for appointment as a judicial or legal officer follow an appropriate course, and

(e)          enable a citizen of Mauritius who has obtained a professional qualification to apply for admission to practise in Mauritius as a barrister.

Mr Deputy Speaker, Sir, it has been debated since a long time as to why Mauritian citizens who get qualified in other common law or civil law jurisdictions cannot apply to be admitted to the Bar in Mauritius.  Once enacted, this piece of legislation will translate that into reality as provision is being made for Mauritians qualified in New Zealand, Australia, Canada and France to also be able to apply for admission.

However, to make such persons better accustomed to the Mauritian Legal System, they will need to follow a course to be run by the Institute for Judicial and Legal Studies either during their pupillage or before taking the oath.

Mr Deputy Speaker, Sir, with this Bill, judicial training will become compulsory for anyone aspiring to become a Judge or Magistrate.  It will also be imperative for someone to follow a course before becoming a legal officer.  All law practitioners will henceforth be required to follow Continuous Professional Development Programmes every year to keep themselves abreast with the latest developments in the law.

Mr Deputy Speaker, Sir, much has been said over the years about the way pupillage is currently being conducted.  It has been reported that there is seldom a proper structure for such training.  In this Bill, provision is specifically being made for the Council to regulate pupillage by designating pupil masters and the law will, henceforth, impose duties on them which will include, inter alia, the obligation to provide to the Council for Vocational Legal Education a comprehensive report on the pupil’s performance.  Provision is also being made in this Bill for a pupil to go to Court after six months’ pupillage.

Mr Speaker, Sir, as the House will have already noted, the Law Practitioners (Amendment) Bill not only seeks to implement some recommendations of the Presidential Commission, but also, very importantly, seeks to bring long-awaited reforms insofar as the organisation and conduct of the Bar Vocational Course and Examinations are concerned, and thereby makes provision for the establishment of a Council for Vocational Legal Education and reviews the whole manner in which the vocational course and examinations are to be conducted.

Indeed, as the House is already aware, the results of the Vocational Examinations conducted by the Council of Legal Education (CLE) these past few years have been the cause of great concern not only among the vocational course students and members of the legal profession, but also among members of the public generally.  The matter has been raised several times by hon. Members from both sides of the House.  I recall raising the issue when I was myself a Government backbencher.

This state of affairs has consequently led to a number of representations from students for the reform of the vocational course which is found to be too academic and a repetition of the courses offered for the obtention of a law degree.  It is being proposed to make the course more practice based and to include subjects such as advocacy, drafting, opinion writing, civil procedure, criminal procedure, evidence, ethics among others.  In fact, the Chairperson of the Council of Legal Education has himself requested that the whole course be reviewed and conducted by a different institution.  It may here be noted that the University of Mauritius (UOM) has already agreed to run the vocational course and to set up a centre for Professional Legal Studies for that purpose.  I am informed that the Northumbria University, Nottingham Law School, Université de Limoges and the Cardiff Law School among other universities have expressed their interest to collaborate with the University of Mauritius in devising the course.

Furthermore, the Tertiary Education Commission for its part has been working in collaboration with the University of Mauritius in relation to the practical aspects of the conduct of the vocational course.  Work, for the implementation of the changes being proposed today, is therefore already in progress.  It is, therefore, being suggested that the courses will be run by the University of Mauritius or any other accredited persons and exams will be conducted by a Vocational Examinations Board.

I must point out that the draft Bill was circulated among various stakeholders, including the Judiciary, the Mauritius Bar Association, the Chamber of Notaries, the Mauritius Law Society, the Office of the Director of Public Prosecutions and the Law Reform Commission for their views and comments, and that due consideration has been given to the representations made in the finalisation of the Bill.  However, in view of the fact that representations were received even after the introduction of the Bill in the National Assembly, I will, in the light of those representations, be moving certain amendments, as circulated, at Committee Stage. These,  Mr Deputy Speaker, Sir, were communicated to hon. Members well in advance to give them ample time to study the proposed amendments.

I shall now, Mr Deputy Speaker, Sir, take the House through the salient features of the Law Practitioners (Amendment) Bill, indicating, as I proceed, the changes and new provisions which the Bill proposes to bring.

First of all, clause 4 of the Bill repeals and replaces section 4 of the Law Practitioners Act which deals with qualifications of law practitioners, to make new provision in relation thereto.  Thus, the new requirements for a citizen of Mauritius to apply for admission to practise law in Mauritius are found in the proposed section 4(2), by virtue of which prospective barristers who qualified in a State other than Mauritius should have a professional qualification and followed a prescribed course of training in Mauritius, while other prospective law practitioners – like those who qualified in Mauritius – should have been awarded a law degree, completed the vocational course and as per the proposed section 4(2) as it presently stands, sat for and passed an examination.  Moreover, every prospective law practitioner should have undergone pupillage. I would here like to point out that I shall, at Committee Stage, move amendments to clauses 3 and 4 of the Bill so as to –

(i)            delete the word “full-time” from the definition of “law degree”;

(ii)           delete and replace the definition of “professional qualification” by a new definition which will enable citizens of Mauritius who qualified in England and Wales, Australia, New Zealand, Canada or France to apply for admission to practise in Mauritius as a barrister;

(iii)          delete and replace subparagraphs (ii) and (iii) of the proposed section 4(2)(a) by new subparagraphs (ii) and (iii), and thereby also provide for a new definition, which is that of “Vocational Examinations Board”.

Clause 5, for its part, repeals and replaces section 5 of the Law Practitioners Act which presently provides for pupillage or articleship in special cases by a new section 5 which is entitled “Vocational course” and by virtue of which the subjects to be taught for the vocational course are as specified in the new added Second Schedule to the Law Practitioners Act.  I shall, at Committee Stage, move amendments to the proposed section 5 to specify that vocational courses should be conducted by accredited persons and to delete paragraph (b) of the said section and replace it by a new paragraph (b) which specifies that the vocational examinations should have been conducted by the Vocational Examinations Board.

Clause 6 of the Bill seeks to amend the Law Practitioners Act by inserting a new section 5A, which provides for pupillage and –

• by virtue of which the Council For Vocational Legal Educationshall, as per the proposed clause 5A(1), draw up and keep under review a list of law firms, and of law practitioners of not less than 15 years’ standing from each of the 3 branches of the profession, which and who the Council For Vocational Legal Education, after consultation, considers are able to provide the required amenities and training to be a pupil master;
• more specifically, in its subsection (2), for the period of pupillage required for barristers, attorneys and notaries respectively;
• the duties of a pupil master;
• according to which prospective barristers who hold a professional qualification must, during their period of pupillage, follow, to the satisfaction of the Council For Vocational Legal Education, a course of training in such subjects as may, in the Council For Vocational Legal Education’s opinion, be necessary to enable them to practise in Mauritius. They shall, however, not be required to sit for any examination.

I shall, at Committee Stage, move amendments to the proposed section 5A (1) and (2) so as to merge paragraphs (a) and (b) of subsection (1) and to delete there from the reference to law firms, and in order to provide, in subsection (2), for pupillage in Mauritius, England and Wales, Australia, New Zealand, Canada or France.  As for section 5A(6), I shall move an amendment to specify the time when the course of training referred to therein should be followed.

Clause 8 of the Bill, as it presently stands, amends section 9A of the Law Practitioners Act to provide that no barrister or Attorney shall be appointed as Senior Counsel or Senior Attorney unless he is, and has been for at least 15 years, a barrister or an Attorney entitled to practise before the Supreme Court. I shall, at Committee Stage, move an amendment to this clause to delete and replace the proposed section 9A(2) by a new subsection (2) in order to provide that barristers and Attorneys of 15 years’ standing may be appointed as Senior Counsel or Senior Attorney.

Under Clause 9 of the Bill, the Law Practitioners Act is further amended to introduce new sections 9B and 9C, which respectively provide for Continuing Professional Development and courses for prospective judicial and legal officers.

As far as Continuing Professional Development is concerned, provision is made in the new section 9B for the Institute to devise Continuing Professional Development Programmes for each of the three branches of the legal profession with a view to broadening the knowledge of law practitioners and legal officers, keeping them abreast of developments in the law, encouraging them to share experiences and enhancing their professional skills.  These Programmes may, for instance, include attendance at lectures, workshops or seminars, and every law practitioner, including legal officers, shall in every year follow a Continuing Professional Development Programme for the prescribed number of hours unless he is excused by the Chief Justice for reasons such as proven ability and experience, age, ill health or unavoidable professional commitments. I shall, at Committee Stage, move amendments to the proposed section 9(B)(3) to provide that law practitioners and legal officers shall “participate in” instead of “follow” Continuing Professional Development Programmes, and for the possibility of being excused on the grounds of age or ill health only.  It is to be noted that failure to follow a Continuing Professional Development Programme may result in the matter being reported to the Judicial and Legal Service Commission in the case of a legal officer, and in the case of a law practitioner, in a written warning or the suspension of his right to practise for a period not exceeding one year.

As regards the new section 9C, it provides for another ground breaking and long awaited provision that any person who wishes to be considered for appointment as a Judge, Magistrate or legal officer shall follow a course devised by the Institute, and which is meant to enable persons to familiarise themselves with the duties which they will be required to perform in the office to which they wish to be appointed.  I shall, at Committee Stage, move an amendment to this proposed section to provide for the course to be approved by the Judicial and Legal Service Commission.

Furthermore, under Clause 10 of the Bill as presently drafted, section 10 of the Law Practitioners Act which provides for the Roll of law practitioners is amended by repealing and replacing subsection (3) by a new subsection according to which the Supreme Court shall, on the appointment of a law practitioner as a judicial or legal officer, remove the person’s name from the roll and may furthermore, on its own motion or on application by the person concerned, and after making such enquiry as it thinks fit amend an entry on the roll, remove the name of a person from the roll, cause the name of a person which has been removed from the roll to be restored.  I shall, at Committee Stage, move to delete clause 10 and replace it by a new clause 10 which provides, inter alia, for a new subsection (4) which makes provision for the Supreme Court to keep a list of barristers in private practice, legal officers, law firms and law practitioners employed by them, law practitioners in employment and legal consultants.

Under Clause 11 of the Bill, section 11 of the Law Practitioners Act which deals with the establishment of the Council of Legal Education is repealed and replaced by a new section 11 which provides for the establishment of a Council for Vocational Legal Education.  I shall, at Committee Stage, move an amendment, firstly, to the proposed section 11(2)(a) to add the words “and such other persons as he may deem fit” and, secondly, to section 11(3)(a)(ii) to replace the words “after consultation with” by the words “on the recommendation of” .

Clause 12 of the Bill, as presently drafted, amends the Law Practitioners Act by inserting therein new section 11A, which specifically provides for the Secretariat of the Council for Vocational Legal Education.  I shall, at Committee Stage, move an amendment to this clause so as to delete it and replace it by a new clause 12 which also makes provision for a new section 11B which provides for the setting up of a Vocational Examinations Board for the purpose of organising and conducting the vocational examinations on behalf of the Council.

As for Clause 13, it repeals section 12 of the Law Practitioners Act which provides for the functions of the Council of Legal Education and replaces it by a new section 12, whereby the functions and powers of the Council for Vocational Legal Education are listed.  Thus, under the clause as presently drafted, the Council for Vocational Legal Education shall mainly be responsible for the granting of an authorisation to run a vocational course, supervise vocational courses and approve oral or written examinations for prospective law practitioners, draw up and keep under review a list of law firms, and of law practitioners who may be pupil masters. I shall, at Committee Stage, move an amendment, firstly, to delete the proposed section 12(b) and replace it by a new paragraph (b) according to which the Council shall supervise vocational courses and organise, through the Vocational Examinations Board, oral or written examinations for prospective law practitioners, and secondly, to delete the reference to law firms in section 12(c).

Another major amendment to the Law Practitioners Act is found in clause 14 of the Bill, which introduces a new section 12A in the Law Practitioners Act which makes provision for accredited persons.  Thus, by virtue of this section, only an accredited person shall run a vocational course, or hold himself out, by advertisement or otherwise, as being a person who runs or is entitled to run a vocational course. It is to be noted that “accredited person” is specifically defined in the Bill as meaning the University of Mauritius or a person who is the holder of an authorisation granted under section 12A (3), which provides that the Council for Vocational Legal Education may, following receipt of such a request, authorise a person to run such vocational course as it may approve.  Under the proposed section 12A(7)(b), the Council for Vocational Legal Education may also require the accredited person to submit its syllabus or programme to it for approval and make such arrangements as it thinks fit to supervise the running of the course or the holding of examinations.  I would here like to point out that I shall, at Committee Stage, move an amendment to this clause to delete there from the words “ or the holding of examinations”.

Under clause 15 of the Bill, section 21 of the Law Practitioners Act (which relates to the right of audience before Courts) is amended by adding a new subsection (4) by virtue of which a prospective barrister or attorney who has completed 6 months of pupillage may represent his pupil master’s client at any stage of any proceedings before a Magistrate other than a trial on merits, arguments on a matter of law or submissions at the end of a case. I shall, at Committee Stage, move an amendment to the proposed section 21(4) (a) to specify that a pupil may only represent the client in Court in the presence of the pupil master.

Furthermore, under clause 16, a new section 21A is sought to be introduced in the Law Practitioners Act, which specifically makes provision, inter alia, for a person following a vocational course or a prospective law practitioner undergoing pupillage to have access to the Supreme Court Library.

Clause 18 of the Bill, furthermore, seeks to add 2 Schedules to the Law Practitioners Act, which respectively provide for a list of legal officers and a list of subjects to be taught for the vocational course. I shall, at Committee Stage, move amendments to the Schedule in order to delete, in the newly added Second Schedule, “Dispute resolution” from Part ll and to include “Commercial and business law” and “Family law” therein, and secondly, to insert in Part lll, the subject “Responsabilité Notariale”.

Clause 19 of the Bill, for its part, provides for a consequential amendment to the Tertiary Education Commission Act (TEC Act), the main objective of which is to provide for a definition of the word “programmes”, which shall not include vocational course, except for the purpose of section 6 of the Tertiary Education Commission Act, which relates to the allocation of funds to tertiary education institutions in the light of their annual and long term programmes.

Finally, clause 20 of the Bill (which relates to transitional provision and savings) provides, amongst other things, that where at the commencement of the Law Practitioners (Amendment) Act 2011, the Council for Vocational Legal Education is satisfied that a prospective law practitioner has, in accordance with the repealed section 4 of the Law Practitioners Act, started undergoing pupillage, it may, subject to such conditions as it thinks fit, authorise him to continue and complete his pupillage which shall be deemed to be pupillage for the purposes of section 5A. I shall, at Committee Stage, move an amendment to clause 20(2) to replace the words “shall, the commencement of this Act” by the words “before the commencement of this Act shall, at the commencement of this Act”.  I shall also move an amendment to clause 21 to delete and replace the existing provision by new provisions which provide that different sections of the Act may come into operation on different dates.

Mr Deputy Speaker, Sir, the objective behind the above changes is therefore, on the one hand, not only to review the courses being held by the Council of Legal Education and the examinations which are held but to ensure also that law students are given adequate and practical training so as to improve their chances of success at the vocational course and, on the other hand, to ensure that a high degree of professionalism and standard is maintained in the Judiciary and among law practitioners and legal officers throughout their career, and thereby improving our judicial and legal system generally by bringing the necessary reforms to ensure that members of the public get, as far as possible, the best professional legal services and thereby reinforcing the confidence of the public in the legal profession and the Judiciary.

I am thankful to my officers who have worked hard to make this Bill a reality.

I believe, Mr Deputy Speaker, Sir, that the measures and amendments being proposed today should be favourably welcomed.

With these words, Mr Deputy Speaker, Sir, I commend the Bill to the House.

Dr. A. Boolell rose and seconded.

Mr Varma: Mr Deputy Speaker, Sir, I would like to thank all hon. Members who have intervened on the Bill and particularly congratulate Ministers Pillay Chedumbrum and Mohamed for their brilliant interventions.

Mr Deputy Speaker, Sir, I have heard the three orators from the Opposition and all three of them have spoken about consultation. Mr Deputy Speaker, Sir, the hon. third Member for GRNW and Port Louis West put a Parliamentary Question in November last year – this was referred to by hon. Mohamed – and in reply to that Parliamentary Question, Mr Deputy Speaker, Sir, I said and I quote –

“If the hon. Members of the Opposition want to have their input, they are most welcome because this is a matter of national interest and above party politics. They are most welcome to come over.  Let’s discuss and let’s go ahead as soon as possible.”

I said that in reply to a Parliamentary Question in November 2010, Mr Deputy Speaker, Sir. Did any hon. Member of the Opposition get in touch with me or my office to make suggestions? Never, Mr Deputy Speaker, Sir! Not one suggestion has been made!

(Interruptions)

Mr Deputy Speaker, Sir, the Law Practioners (Amendment) Bill was introduced in the National Assembly in May of this year.  It was read for a first time.  Did the hon. Members of the Opposition get in touch with me or my office to make representations?  Representations were received, Mr Deputy Speaker, Sir from the Judiciary, the Bar Council, the Law Society, the Chamber of Notaries, the University of Mauritius, the Law students, all of them made representations, although they were consulted prior to the preparation of the Bill.  Nevertheless, Mr Deputy Speaker, Sir, when these representations were received, we made arrangements for these representations, if valid, to be taken on board in the finalisation of this Bill.

Mr Deputy Speaker, Sir, I cannot recall how many meetings I have held with the representatives of the Bar Council.  I cannot recall how many times, the Chairperson of the Bar Council has come to my office to make representations.  Mr Deputy Speaker, Sir, when the Bill was introduced for the first time in the august Assembly, the Chairperson of the Bar Council got in touch with me.  He came to my office and he made representations.  I can tell you frankly, Mr Deputy Speaker, Sir, that most of the suggestions made by the Chairperson of the Bar Council have been taken on board.

Mr Deputy Speaker, Sir, the Chief Justice wanted to have consultations with me regarding the Law Practitioners (Amendment) Bill.  We have had so many meetings.  Again, all the suggestions which were raised, were taken on board, and we even received a letter from the hon. Chief Justice to tell us to go ahead with the reforms.  The number of times we have held consultations with the Law Society.  The Chairperson and the members of the Law Society have been consulted and they have made their suggestions, which have been taken on board.

Mr Deputy Speaker, Sir, the hon. third Member for GRNW & Port Louis West stated that the Bar Council was invited, but the Chairman of the Bar Council is abroad and I am the vice-Chairperson of the Bar Council.  The representatives of the Law Society are here.  Why?  They are here to assist the debate.  They are not here to support every Tom, Dick and Harry.  They are here to witness the debates of the Law Practitioners (Amendment) Bill.  Mr Deputy Speaker, Sir, I need to make a point.  The Chamber of the Notaries were invited and we made arrangements but, unfortunately, they could not get access to the National Assembly today and this is a matter which I want to take up with the Speaker of the National Assembly and which is very serious.  We made arrangements for them to be present, but they could not have access.

This Bill has been debated in a number of forums.  All the stakeholders have been consulted, not once, not twice, but on a number of occasions.  The hon. third Member for GRNW & Port Louis West referred to the Committee which was set up in 1982.  The Committee which was set up in 1982 was to put forward the Council of Legal Education.  Are we in the same situation today, Mr Deputy Speaker, Sir?  We are not in the same situation because we have got an institution which we need to review the functioning.  We need to modernise our legal system.  Mr Deputy Speaker, Sir, let us not lose focus of this Bill.  What does the Bill primarily want to achieve?

First of all, Mr Deputy Speaker, Sir, a groundbreaking decision has been taken by Government to introduce compulsory judicial training for someone who aspires to become a Magistrate or a Judge.  Never before have we had such a decision.  They were in Government for many years.  Mr Deputy Speaker, Sir, I have tried to get hold of a Parliamentary Question or of any debate which was held in the National Assembly from 2000 to 2005 as regards the reform of the courses being held by the Council of Legal Education, but I could find none.  It is now when this Government has taken the initiative, it is now when the Government has taken the decision to go ahead and reform the courses that they are criticising.

(Interruptions)

Mr Deputy Speaker, Sir, one more thing, in so many jurisdictions …

(Interruptions)

The Deputy Speaker:  Order!

Mr Varma: … they have introduced continuous provisional development.  This Bill, Mr Deputy Speaker, Sir, …

(Interruptions)

The Deputy Speaker:  Order!

(Interruptions)

Order please! Order! Hon. Bhagwan, please!

(Interruptions)

Order! Order please!

(Interruptions)

Order! Hon. Bhagwan!

(Interruptions)

Order! Order please!

(Interruptions)

Order! Hon. Bhagwan! Hon. Bhagwan, please!

(Interruptions)

Hon. Attorney General, you may continue now.

(Interruptions)

Order!

(Interruptions)

Hon. Members, I will have to take action in case silence is not restored in the House.  I know it’s time for diner, bear with us for a few minutes!  I now invite the hon. Attorney General to resume.

(Interruptions)

Mr Varma: Mr Deputy Speaker, Sir, what I was saying is that we should not lose focus of this Bill.  In many jurisdictions, they have introduced continuous professional development and this is what we are precisely doing with this piece of legislation.  As you know, in countries like the United Kingdom, it is compulsory to follow CPD, and this is what we are doing with this piece of legislation.

As far as pupillage is concerned, …

(Interruptions)

The Deputy Speaker: Order now!

Mr Varma:  …  we all know what is the situation now.  What happens?  You know, Mr X and you go and do pupillage with him or her and then there is no

infrastructure.  Sometimes the pupils do not even have an office, they just go to the court and listen to the court proceedings.  What we are doing precisely with this piece of legislation, Mr Deputy Speaker, Sir, is that we are reforming the system of pupillage.  The Council for Vocational Legal Education will be entrusted with the duty to designate the pupil master.  There will be duties imposed on the pupil master.  They will need to make a report which is sent to the Council for Vocational Legal Education.  This is what is being achieved with this piece of legislation.

Mr Deputy Speaker, Sir, one more important thing.  How many representations have been made to the effect that we should allow barristers qualified in other countries to come and practise in Mauritius?

We did make provision in the Bill for barristers to be qualified in other commonwealth jurisdictions as be prescribed to be able to practise. They have been speaking over the Bar Council over and over again and I know why.  It is because there is a member of the Bar Council who is a member of the politburo of the MMM! This is how the information gets there.  But do the hon. Members of the Opposition know about the consultations which we have held with the Chairman of the Bar Council, with the Judiciary?  Do they know it, Mr Deputy Speaker, Sir? I can mention a number of amendments which the Bar Council has suggested and which we have incorporated in this piece of legislation.

Mr Deputy Speaker, Sir, as far as the law degree is concerned, the hon. third Member for Curepipe and Midlands stated why is there a difference between the law degree and the professional qualification, but does he know the representations which the Bar Council has made? He does not know! Why have so many amendments been brought before the House today? This is because of further suggestions which have been made by different stakeholders, Mr Deputy Speaker, Sir. The way the examinations are conducted, the courses run by the Council of Legal Education and what is being proposed have been lengthily debated by the Members of the Opposition.

Mr Deputy Speaker, Sir, what are we doing now? When I was qualified I came back to Mauritius and I made it a duty to attend the courses being offered by the Council of Legal Education. Mr Deputy Speaker, Sir, you know what is the situation now. You have taught at the Council of the Legal Education and you know what the situation is. Students are called upon to attend courses in the morning. Very often, they come down to Port Louis and courses are postponed. They have to spend the whole day in Port Louis waiting for the next lecture at three o’clock and, sometimes, Mr Deputy Speaker, Sir, when they get to the lecture room at three o’clock, the lecture is again postponed. How many representations have we received to that effect? I can recall, Mr Deputy Speaker, Sir, when I assumed office as Attorney General, that many students came to meet me. I even recalled a lady who had taken examinations on four occasions, but could not get through. She was so depressed, Mr Deputy Speaker, Sir, and she wanted a solution to the problem. Mr Deputy Speaker, Sir, have you ever heard of a professional course being conducted without tutorials, without manuals, without a proper classroom, without a library? Mr Deputy Speaker, Sir, have you ever heard of a professional course which is simply repeating everything which we have done during your law degree? This is what is happening now, Mr Deputy Speaker, Sir, and what we are trying to cure is this particular problem. Now we are suggesting that this course be conducted by the University of Mauritius. The University of Mauritius has already agreed, Mr Deputy Speaker, Sir, to run that particular course. They are already in contact with universities abroad to be able to prepare the course so that when these students go through the course they get the proper infrastructure. It has even been suggested that a mock court room be set up for proper development of the skill that you need to practise as a barrister. Look at the subjects, Mr Deputy Speaker, Sir, which we are prescribing – advocacy, conferencing, opinion writing, drafting, criminal litigation, civil procedure, criminal procedure, evidence, and ethics. These are the subjects which we are prescribing to be taught. We want this course to be a professional course. This is the aim of Government. There have been concerns raised by hon. Members of the Opposition as regards the accredited persons. Maybe rightly so, Mr Deputy Speaker, Sir, there is a fear that there might be a mushrooming of institutions, but we rest assured and for that I disagree with the hon. Third Member for Curepipe and Midlands. There is no attempt at ‘petit copinage’. I have stated it when I replied to the Parliamentary Question in November last year and I reiterate this is a matter that should be above party politics.

Mr Deputy Speaker, Sir, the Council for Vocational Legal Education will decide whether it has to give authorisation to other accredited persons or not. If the Council for Vocational Legal Education is satisfied that it is only the University of Mauritius that should run the course then so be it. We have not put in the composition of the Vocational Examinations Board a quorum. It can start functioning without any accredited person and even if there is only one accredited person, there can be three persons who represent that accredited person on the Vocational Examinations Board.

Mr Deputy Speaker, Sir, there was a point raised by the Second Member for Port Louis South and Port Central as to whether the course will start New Year. Mr Deputy Speaker, Sir, we want to move fast, but we have made provision in the Bill that different sections may be proclaimed at different times. Of course, we have to wait whether the University is ready to run the course, it will be in the law now. We have had consultations, they are going ahead with the preparation for the setting up of the centre for professional legal studies. I don’t want to be nasty, but the hon. Second Member for Port Louis South and Port Louis Central did not make any suggestion on the New York Bar. We spoke about another matter which is not proper for me to state in this House.

Mr Deputy Speaker, Sir, I was a bit confused about the different stands taken by the hon. Second Member for Port Louis South and Port Louis Central and the hon. Third Member for Curepipe and Midland as regards the organisation of whether aspiring barristers will have to take an examination to be able to practise at the Bar in Mauritius. We are of the view that they should not; in fact, they should be given an induction course to the Mauritian Legal System and this will be catered for by the Institute for Judicial and Legal Studies.

Mr Deputy Speaker, Sir, the hon. Third Member for Grand River North West and Port Louis West raised the issue about the ‘Ecole de la Magistrature’. Hon. Minister Mohamed clearly stated ‘What’s in a name”. The Institute for Judicial and Legal Studies has been set up precisely to cater for judicial training, for continuous professional development of Law Practitioners and to run courses for persons who have been qualified in other jurisdictions to follow that induction course.

Mr Deputy Speaker, Sir, as regards another point which was raised by the Opposition as to whether the Attorney General will have mainmise on the Council, one point which I have to make is that the Council for Vocational Legal Education is only replacing the Council of Legal Education and not anything else. Of course, the functions have changed, but it is not another institution that is being set up.

Mr Deputy Speaker, Sir, it is unfortunate that during the preparation of the Bill, the Opposition did not deem it fit to make suggestions which I invited them to make and, of course, I have met hon. Members of this side of the Opposition, because the other side was in Government. We had discussions, Mr Deputy Speaker, Sir, when they were asking me why is it that the Bill is not being debated, I told them frankly that we are receiving representations and we will have to take decisions at the level of the Government and then come forward with amendments at Committee Stage. They were fully aware. and I even invited them again informally to make suggestions, but unfortunately, they did not make so, Mr Deputy Speaker, Sir and even when the Bill was introduced to date there were no suggestions.

Now, as regards the proposed amendments which were circulated on Saturday, Mr Deputy Speaker, Sir, my officers and myself, we stayed till late on Friday to finalise these amendments and I made it a must, Mr Deputy Speaker, Sir.  I spoke to the Clerk of the National Assembly personally.  I said that I want these proposed amendments to be sent to hon. Members together with the Order Paper.  I made that suggestion, Mr Deputy Speaker, Sir, because we had the option that this could have been circulated on Monday.  I said no, we will finalise it and we will send it together with the Order Paper so that hon. Members of the Opposition get ample time to study the proposed amendments.

Mr Deputy Speaker, Sir, again, I would like to reiterate that we should not lose focus of the main objectives of the Bill.  Mr Deputy Speaker, Sir, I think I have replied to all the main concerns raised by hon. Members and I again commend the Bill to the House.

Thank you.

Question put and agreed to.

Bill read a second time and committed.

COMMITTEE STAGE

(The Deputy Speaker in the Chair)

THE LAW PRACTITIONERS (AMENDMENT) BILL (No. X of 2011)

Clauses 1 and 2 ordered to stand part of the Bill.

Clause 3 (Section 2 of principal Act amended)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma: Mr Chairperson, I move in terms of the amendment circulated that –

“in clause 3, in subclause (e) –

(i)            in the definition of “law degree”, by deleting the words “full-time”;

(ii)           by deleting the definition of “professional qualification” and replacing it by the following definition –

“professional qualification” means an attestation, in such form as the Council may approve, to the effect that a person who holds a law degree has a qualification as, or equivalent to that of, barrister entitling him to practise in England and Wales, Australia, New Zealand, Canada or France;

(iii)          by adding the following new definition –

“Vocational Examinations Board” means the Board set up under section 11B.”

Amendment agreed to.

Clause 3, as amended, ordered to stand part of the Bill.

Clause 4 (Section 4 of principal Act repealed and replaced)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma: Mr Chairperson, I move in terms of the amendment circulated that  –

“in clause 4, in the proposed section 4 (2)(a), by deleting subparagraphs (ii) and (iii) and replacing them by the following subparagraphs –

(ii)          in the case of every other prospective barrister or every prospective attorney –

(A)          been awarded a law degree;

(B)          completed the vocational course in accordance with section 5; and

(C)          sat for and passed an examination conducted by the Vocational Examinations Board;

(iii)      in the case of a prospective notary –

(A)  the qualifications referred to in subparagraph (ii);

(B)  attained the age of 25 years; and

(C)          been authorised by the Prime Minister, after consultation with the Attorney-General, to apply for admission; and”

Amendment agreed to.

Clause 4, as amended, ordered to stand part of the Bill.

Clause 5 (Section 5 of principal Act repealed and replaced)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma: Mr Chairperson, I move in terms of the amendment circulated that –

“in clause 5, in the proposed section 5 –

(i)            by deleting the words “section 4(2)(a)(iii)(B)” and replacing them by the words “section 4(2)(a)(ii)(B)”;

(ii)           in paragraph (a), by inserting, after the words “as may be approved by the Council”, the words “and conducted by an accredited person,”;

(iii)          by deleting paragraph (b) and replacing it by the following paragraph –

(b)         satisfied the Council of his proficiency in the subjects specified in the Second Schedule, following such oral and written examinations as the Vocational Examinations Board may conduct.”

Amendment agreed to.

Clause 5, as amended, ordered to stand part of the Bill.

Clause 6 (New section 5A inserted in principal Act)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma: Mr Chairperson, I move in terms of the amendment circulated that –

“in clause 6, in the proposed section 5A –

(i)            in the proposed subsection (1) –

(A)          by deleting paragraphs (a) and (b) and replacing them by the following paragraph –

(a)          The Council shall, after consultation with the Bar Council, the Mauritius Law Society Council or the Chamber of Notaries, as the case may be, for the purpose of determining whether a law practitioner is able to provide the required amenities and training to be a pupil master, draw up and keep under review a list of law practitioners of not less than 15 years’ standing, from each of the 3 branches of the profession, who may be pupil masters.

(B)          by relettering paragraph (c) as paragraph (b);

(ii)           by deleting the proposed subsection (2) and replacing it by the following subsection –

(2)          Subject to subsections (4), (5) and (6), pupillage shall, for the purposes of sections 4 and 21(4), consist –

(a)          in the case of a prospective barrister –

(i)            who qualified in Mauritius, of attachment to –

(A)          the chambers of a barrister for 9 months; or

(B)          the chambers of a barrister for 3 months and a barrister in a law firm for 6 months,

and the office of an attorney for 3 months; or

(ii)           who qualified as such in England and Wales, Australia, New Zealand, Canada or France –

(A)          of attachment for a period of not less than 12 months to the chambers of a barrister of not less than 15 years’ standing in the State in which he qualified; or

(B)          of attachment for an aggregate period of not less than 9 months to the chambers of one or more barrister of not less than 15 years’ standing in Mauritius, England and Wales, Australia, New Zealand, Canada or France, and of attachment for a consecutive period of not less than 3 months to the office of an attorney in Mauritius;

(b)          in the case of a prospective attorney, of articleship in, or  attachment to, the office of an attorney in Mauritius, or to an attorney in a law firm in Mauritius, for 12 months; and

(c)           in the case of a prospective notary, of articleship in, or attachment to, the office of a notary in Mauritius for 24 months,

under the supervision of a pupil master designated by the Council with the consent of the pupil master and the pupil, where pupillage is undergone in Mauritius, and a pupil master proposed by the pupil and approved by the Council, where pupillage is undergone outside Mauritius.

(iii)      by deleting the proposed subsection (6) and replacing it by the following subsection –

(6)          (a)          Every prospective barrister who holds a professional qualification and who undergoes pupillage in Mauritius shall, during his period of pupillage, follow, to the satisfaction of the Council, a course of training conducted by the Institute in such subjects as may, in the Council’s opinion, be necessary to enable him to practise in Mauritius.

(b)          Where a prospective barrister who holds a professional qualification undergoes pupillage in England and Wales, Australia, New Zealand, Canada or France, the course of training referred to in paragraph (a) shall be followed before he takes the oath of office to be admitted to practise law in Mauritius.

(c)           A person referred to in paragraph (a) or (b) shall not be required to sit for any examination.”

Amendment agreed to.

Clause 6, as amended, ordered to stand part of the Bill.

Clause 7 ordered to stand part of the Bill.

Clause 8 (Section 9A of principal Act amended)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma: Mr Chairperson, I move in terms of the amendment circulated that –

“in clause 8, in subclause (c), by deleting the proposed new section 9(A)(2) and replacing it by the following new section 9(A)(2) –

(2)          No barrister or attorney shall be appointed pursuant to subsection (1) unless he is, and has been, a barrister or an attorney of not less than 15 years’ standing.”

Amendment agreed to.

Clause 8, as amended, ordered to stand part of the Bill.

Clause 9 (New sections 9B and 9C inserted in principal Act)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma: Mr Chairperson, I move in terms of the amendment circulated that –

“in clause 9 –

(i)            in the proposed new clause 9B, by deleting subclause (3) and replacing it by the following subclause –

(3)            Every law practitioner and legal officer shall, in every year, participate in a Continuing Professional Development Programme for the prescribed number of hours unless he is excused by the Chief Justice for reasons such as age or ill health.

(ii)           in the proposed new clause 9C, in subclause (1), by adding, after the words “subsection (2)”, the words “, which shall be approved by the Judicial and Legal Service Commission”.”

Amendment agreed to.

Clause 9, as amended, ordered to stand part of the Bill.

Clause 10 (Section 10 of principal Act amended)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma: Mr Chairperson, I move in terms of the amendment circulated that –

“by deleting clause 10 and replacing it by the following clause –

10. Section 10 of principal Act amended

Section 10 of the principal Act is amended by –

(a)          repealing subsection (3) and replacing it by the following subsection –

(3)          The Supreme Court –

(a)        may, on its own motion or an application by the person concerned, and after making such enquiry as it thinks fit –

(i)            amend an entry on the Roll;

(ii)           remove the name of a person from the Roll following an order made under section 14 or where the person has ceased to be a member of a body referred to in section 3(1)(b);

(b)          may cause the name of a person which has been removed from the Roll to be restored on the Roll.

(b)                          adding the following new subsection –

(4)          The Supreme Court shall, for the purposes of this Act, keep a list of –

(a)        barristers in private practice;

(b)        legal officers;

(c)         law firms and law practitioners employed by them;

(d)        law practitioners in employment; and

(e)        legal consultants.”

Amendment agreed to.

Clause 10, as amended, ordered to stand part of the Bill.

Clause 11 (Section 11 of principal Act repealed and replaced)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma: Mr Chairperson, I move in terms of the amendment circulated that  –

“in clause 11, in the proposed section 11 –

(a)          in subsection (2)(a), by adding, after the words “Attorney-General”, the words “and such other persons as he may deem fit”;

(ii)           in subsection (3)(a)(ii), by deleting the words “after consultation with” and replacing them by the words “on the recommendation of”;”

Amendment agreed to.

Clause 11, as amended, ordered to stand part of the Bill.

Clause 12 (New section 11A inserted in principal Act)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma: Mr Chairperson, I move in terms of the amendment circulated that –

“by deleting clause 12 and replacing it by the following clause –

12. New sections 11A and 11B inserted in principal Act

The principal Act is amended by inserting, after section 11, the following new sections –

11A.       Secretariat of Council

(1)          The Council shall, on such terms and conditions as it may determine, appoint a Secretary to the Council.

(2)         (a)          There shall be such public officers designated by the Registrar as may, in the opinion of the Council, be necessary to assist the Secretary.

(b)          Every person referred to in paragraph (a) shall be under the administrative control of the Secretary.

(3)          The Secretary shall –

(a)          be the chief executive officer of the Council;

(b)          act in accordance with such directions as he may receive from the Chairperson; and

(c)           ensure that assistance and guidance are available to law students at all reasonable times.

(4)          Service of process on or on behalf of the Secretary shall be deemed to be service on or by the Council.

(5)            The Council may pay to a person referred to in subsection (2) such allowance as it thinks fit.

                        11B.       Vocational Examinations Board

(1)          The Council shall every year set up a Vocational Examinations Board for the purpose of organising and conducting the vocational examinations on behalf of the Council.

(2)          The Vocational Examinations Board shall consist of –

(a)        2 representatives of the Council;

(b)        a member of the Faculty of Law of the University of Mauritius;

(c)         not more than 3 representatives of accredited persons other than the University of Mauritius;

(d)        2 examiners from foreign recognised institutions.”

Amendment agreed to.

Clause 12, as amended, ordered to stand part of the Bill.

Clause 13 (Section 12 of principal Act repealed and replaced)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma: Mr Chairperson, I move in terms of the amendment circulated that –

“in clause 13, in the proposed section 12 –

(i)                by deleting paragraph (b) and replacing it by the following paragraph –

(b)          supervise vocational courses and organise, through the Vocational Examinations Board, oral or written examinations for prospective law practitioners;

(ii)               in paragraph (c), by deleting the words “law firms, and of law practitioners of not less than 15 years’ standing, which or” and replacing them by the words “law practitioners of not less than 15 years’ standing”;”

Amendment agreed to.

Clause 13, as amended, ordered to stand part of the Bill.

Clause 14 (New section 12A inserted in principal Act)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma: Mr Chairperson, I move in terms of the amendment circulated that –

“in clause 14, in the proposed new clause 12A, in subclause (7)(b), by deleting the words “or the holding of examinations”;”

Amendment agreed to.

Clause 14, as amended, ordered to stand part of the Bill.

Clause 15 (Section 21 of principal Act amended)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma: Mr Chairperson, I move in terms of the amendment circulated that –

“in clause 15, in the proposed new section 21(4)(a), by inserting, after the words “6 months of pupillage may”, the words “, in the presence of his pupil master, ”;”

Amendment agreed to.

Clause 15, as amended, ordered to stand part of the Bill.

Clauses 16 to 19 ordered to stand part of the Bill.

Clause 20 (Transitional provision and savings)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma: Mr Chairperson, I move in terms of the amendment circulated that –

“in clause 20 (2), by deleting the words “shall, the commencement of this Act” and replacing them by the following words “before the commencement of this Act shall, at the commencement of this Act”;”

Amendment agreed to.

Clause 20, as amended, ordered to stand part of the Bill.

Clause 21 (Commencement)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma: Mr Chairperson, I move in terms of the amendment circulated that –

“by deleting clause 21 and replacing it by the following clause –

21. Commencement

(1)          Subject to subsection (2), this Act shall come into operation on a date to be fixed by Proclamation.

(2)          Different dates may be fixed for the coming into operation of different sections of this Act.”

Amendment agreed to.

Clause 21, as amended, ordered to stand part of the Bill.

The First Schedule ordered to stand part of the Bill.

The Second Schedule (as proposed)

Motion made and question proposed: “that the Second Schedule stand part of the Bill”.

Mr Varma: Mr Chairperson, I move in terms of the amendment circulated that –

“in the Schedule, in the proposed new Second Schedule –

(i)            in Part ll –

(A)          by deleting the following subject –

Dispute resolution

(B)          by inserting, after the subject “Civil Procedure”, the following subject –

Commercial and business law

(C)          by adding the following subject –

Family law

(ii)           in Part lll, by inserting, after the subject “Rédaction des actes”, the following subject –

Responsabilité notariale”

Amendment agreed to.

The Second Schedule (as amended) ordered to stand part of the Bill.

The title and enacting clause were agreed to.

The Bill, as amended, was agreed to.

On the Assembly resuming with the Deputy Speaker in the Chair, the Deputy Speaker reported accordingly.

Third Reading

On motion made and seconded, the Law Practitioners (Amendment) Bill (No. X of 2011) was read the third time and passed.