On the 19th of March 2020 at 22 : 00 hours approximately, the Government made a public announcement to ban ANY person to enter Mauritius through its airport and seaport after 10 00 hours the next day. The decision challenged the basic principle of international law and also national laws, especially the Constitution, that a country cannot declare it citizens to be aliens, and prevent them to enter their own homeland. On the 20th March 2020, two cases were lodged ex parte before The Supreme Court of Mauritius challenging the decision of the Government as being illegal, unreasonable and outright unlawful and unconstitutional. The panel of lawyers consisted of Mes Neelkanth Dulloo, Lovena Sowkhee and Nawaz Dookhee as Counsel while Me Kaviraj Bokhoree appeared as instructing attorney, with the assistance of the law academic and researcher Mr. R Narsinghen. In one of the cases (Narsinghen) the Applicant’s daughter was in the UK and the other case (Afoke) the Applicant’s son was in New York. Both were students and were proceeding to return home to be with their respective families in this time of international and unprecedented sanitary crisis.

Once the Supreme Court was seized with the two cases, the matter was live and a decision had to be reached expeditiously as regards the two applicants and in their wake, the hundreds of people stuck in airports around the world through the decision of the Mauritian Government. The landmark Privy Council case of Minister of Home Affairs vs Barosa 2019 Judicial Committee of the Privy Council Appeal No 0048 of 2017 is the undisputed and unequivocal authority for the principle that a country cannot prevent its own nationals to return into their own country, where they have (a) the nationality or are citizens of that country, or (b) at times, where they have a right of belonging to the said State under common law.

Since our colonial times, decisions of the Judicial Committee of the Privy Council, are binding on our judiciary. Briefly the facts of the case were that Mr Barosa was born in Bermuda, but his parents were not Bermudians. He had Portuguese nationality and was also a British Overseas Territories citizen. The issue in the case was whether Barosa was a Bermudian national. In their findings, the judges had to peruse section 11 of the constitution of Bermuda which revolves around the freedom of movement. The section is drafted on similar lines as section 15 of the Mauritian constitution.

Section 11 (1) of the Bermuda constitution mentions the following:- “(1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of movement, that is to say, the right to move freely throughout Bermuda, the right to reside in any part thereof, the right to enter Bermuda and immunity from expulsion therefrom.” 

Section 15 (1) of the Mauritian Constitution provides that;

«No person shall be deprived of his freedom of movement, and for the purposes of this section, that freedom means the right to move freely throughout Mauritius, the right to reside in any part of Mauritius, the right to enter Mauritius, the right to leave Mauritius and immunity from expulsion from Mauritius.» 

Both section 15 (3) of the Mauritius Constitution and Section 11 (2) provide the circumstances in which the State can limit the freedom of movements of its National. But no-where, in each of the provision of the constitution, it provides circumstances where one can make its own compatriots to become aliens.

The law lords in interpreting section 11 of the Bermudan constitution, mentioned the following; 

There is a constitutional right of to enter once own territory. 

But no power on earth, except the authority of Parliament, can send any subject of England out of the land against his will; no, not even a criminal. 

The principle that every state must admit its own nationals to its territory is accepted so widely that its existence as a rule of law is virtually beyond dispute…’ 

‘it is a principle of international law… that a state is precluded from refusing its own nationals the right of entry or residence’.”
Therefore, it is only an act of Parliament that can prohibit a national to enter his country. A simple announcement by the Prime Minister, is not sufficient to disbar its national to enter the country. However in Mauritius, recourse to a single act in Parliament, will not be sufficient as we are in the context of a supremacy of the constitution. 

Le DROIT DU SOL, as stated by Honourable Paul Berenger does not give the unlimited right to live in Mauritius. Section 20 on citizenship is primarily premised on Droit de Sang.

The case of Applicant in Mauritius is much stronger than the case of Barosa, as the Applicant’s daughter is a citizen of Mauritius by both lien du sol and lien de sang. The Privy Council authority was shared with Counsel of the Government of Mauritius. Common sense has followed and the government rightly, afterwards reversed their absurd decision. 

We welcome, that once more, the Law Lords through their pronouncements have forced the Govt to revisit its position. Since there is no live issue before the court in view of the preliminary steps of Govt,

Mr. Narsinghen is appealing to the Prime Minister, Minister of Health and Foreign Affairs and is requesting them to adopt a more humane approach and to do the needful to provide planes to bring back our nationals, still stranded, who wish to return to Mauritius in the coming days or instructing our Embassies and Consulates to cater for the needs of our nationals and to do it in an effective and meaningful manner beyond their usual narratives and rhetorics which ay not match ground realities. The spirit of our constitution must be upheld. Mauritius has been the only country in the world which declared its citizens to be aliens overnight. The Privy Council in the same case of Barosa has clearly stated that the constitution is particularly drafted in a broad and ample style which lays principle of width and generality that its antecedents ( the European Convention of Human rights and fundamental freedom and the United Nation universal declaration on Human Rights ) and calls for a generous interpretation avoiding the austerity of tabulated legalism, suitable to give to individuals the full measure of fundamental rights and freedom .Food for thought for the conservative people in the legal field, at a time when the Corona Virus is forcing us to rethink about our model of development. Public health, democracy and Human rights.