MEETARBHAN N v THE HONOURABLE PRIME MINISTER & OR S

2016 SCJ 151

SCR No. 111614 5A/93/15
IN THE SUPREME COURT OF MAURITIUS

In the matter of :Nandinee Meetarbhan

Appellant
v
The Honourable Prime Minister & Ors
Respondents
In the presence of:
The Competition Commission And Anor
Co-Respondents
JUDGMENT
This is an application for leave to apply for judicial review. The applicant is
praying for a Declaration that respondent no.1s decision to advise the termination of
her appointment as Executive Director of co-respondent no.1 was illegal, wrongful,
malicious, arbitrary, ultra vires, procedurally improper and in breach of the rules of
natural

justice,

motivated

by

an

improper

motive

and

was

wednesbury

unreasonable.
The facts as revealed in the affidavit supporting the application are as follows:
on 12 July 2013, the applicant was appointed Executive Director of the Competition
Commission on contract for a period of one year by the President of the Republic. On
06 September 2013, the terms and conditions of her contract were revised. On 30
January 2015, her appointment was terminated under section 113(4)(5) of the
Constitution upon payment of compensation in accordance with section 52 of the
Employment Rights Act.

The respondents and co-respondents are objecting to leave being granted on

the ground that there is no arguable case. No affidavit had been filed by any of the
respondents or the co-respondents.
The contention of the applicant is that she can only be removed from office as
per the procedure laid down in sections 22 and 23 of the Competition Act (the Act)
and not under section 113(4) of the Constitution since she was not a political
appointee. Learned counsel for the applicant submitted that there could be no breach
of the Constitution as the decision of the Prime Minister is an executive act and
section 113(4) does not provide for the manner in which the employment of the
officer may be terminated. He also contended that the applicant could only be
removed from office in the circumstance provided by section 23(1) of the Act followed
by the procedure in section 23(2) (5) of the Act.
The submission of learned counsel for the respondents is that there is no
arguable case inasmuch as the appointment of the applicant was made on the advice
of the Prime Minister. The appointment of the applicant was terminated after the
general elections. Counsel also submitted that the wording of section 113(4) is clear,
unambiguous and the conditions laid down therein, were complied with.
It is relevant at this juncture to look closely at the laws applicable in the
present case. Subsections (4) and (5) of section 113 of the Constitution provide that:
113.

Appointment to certain offices

(1)

(2)

(3)

(4)

Where under any law other than this Constitution, an

appointment is made to an office by the Prime Minister,
the Deputy Prime Minister, or any other Minister or on
his advice or after consultation with him, or with his
approval, the holder of the office may, notwithstanding
any provision to the contrary in this Constitution, be
required to vacate the office at any time after a general
election held after the appointment.

(5)

Where an appointment is terminated under subsection

(3)(b) or (4), no compensation shall be payable to the
holder for loss of office by reason of the termination of
his appointment, other than such compensation as
may be prescribed under the Labour Act and he shall
not be entitled to any other damages or compensation
under any other law whatsoever.

Section 20 of the Competition Act provides that:

20.

Appointment of Executive Director

(1)

There shall be a chief executive officer of the

Commission who shall be

(a)

known as the Executive Director;

(b)

appointed by the President, on the advice of the

Prime Minister given after consultation with the
Leader of the Opposition.

(2)

The terms and conditions of the appointment of the

Executive Director shall be determined by the President on

the advice of the Prime Minister.
(3)

Where there is a vacancy in the post of the Executive

Director or the Executive Director is suspended or physically

or mentally incapable of performing his duties, the President,
on the advice of the Prime Minister, may appoint another
person to act as Executive Director or to perform his duties.
It is not disputed in the present case that:
(i)

the applicant was appointed on the advice of the Prime Minister; and

(ii)

the appointment of the applicant was terminated after the general

elections held in December 2014.

The contention of the applicant is that the Prime Minister gave his advice after
consulting the leader of the Opposition.

4
In Suresh Munbodh v The Industrial and Vocation Training Board [2005
SCJ 55], the plaintiff was appointed Director of the IVTB in 1989 and his appointment
was terminated after the general elections of 20 December 1995. The contention of
the plaintiff was that his employment was terminated unlawfully, inasmuch as section
113(4) of the Constitution did not find its application because there had been two
general elections between the time of his appointment and the termination of his
employment. The Court concluded that section 113(4) was rightly applied to the
termination of the plaintiffs employment.
In Vijaya Samputh v The Hon Minister of Tourism, Leisure and External
Communication & Anor [2011 SCJ 298], the plaintiff was appointed Director of the
Tourism Authority by the Board of the Authority, with the approval of the Minister, on
1 November 2004. General Elections were held on 3 July 2005 and on 15 July 2005
her appointment was terminated with immediate effect. The Court held that the
raison dtre and rationale of section 113(4) are obvious and it is not necessary to
expatiate on them and concluded that the appointment of the plaintiff fell under
section 113(4) of the Constitution.
In Clairette Fy Thin Ah-Hen v The Financial Reporting Council [2009 SCJ
440], the defendant caused a notice to be published for the recruitment of a CEO on
a contractual basis on 28 January 2005. Plaintiff submitted her application on 10
March 2005 and was offered employment as CEO for a fixed period of 4 years. On
12 January 2006, plaintiffs appointment was terminated with immediate effect by
virtue of section 113 of the Constitution. The question was whether section 14(1) of
the Financial Reporting Act required plaintiffs appointment to be made with the
Ministers approval. The Court held that section 113 of the Constitution applies to
plaintiffs appointment in view of its finding that the appointment of the CEO provided
for in section 14(1), is subject to the Ministers approval.
In the present case the applicant was, on 12 July 2013, appointed as
Executive Director of the Competition Commission, for a period of one year, by the
President acting on the advice of the Prime Minister, after consultation with the
Leader of the Opposition. The General Elections were held on 14 December 2014.
On 30 January 2015, the President, on the advice of the Prime Minister, terminated
her appointment with immediate effect, under section 113(4) (5) of the Constitution.
The wording of section 113(4) of the Constitution is such that where an
appointment is made under any law other than the Constitution, on the advice of the

5
Prime Minister, the holder of the office, may be required to vacate the office at any
time after a general election held after the appointment irrespective of whether the
Prime Minister had consulted the Leader of the Opposition for the appointment . The
rationale and purpose of section 113 (4) is obvious and clear and does not warrant
us to depart from its literal interpretation, which far from presenting any element of
absurdity, tallies with the general intention of the Parliament.
We accordingly conclude that section 113(4) of the Constitution applies to the
termination of the applicants employment. The applicant has therefore failed to
establish an arguable case.
In the circumstances, we find no reason to intervene and refuse to grant leave
to apply for judicial review of the impugned decision.
For the above reasons, the application is set aside with costs.

A. Hamuth
Judge

G. Jugessur-Manna
Judge
27 April 2016
Judgment delivered by Hon G. Jugessur-Manna

For Appellants:

N. Proag, of Counsel
Francis Hardy, Attorney-At-Law

For Respondents:

State Counsel
State Attorney

For Co-Respondents:

A. Domingue, SC
D. Ghose-Radhakeessoon