mauritius notes on antiterror laws

7/29/2019 Mauritius Notes on AntiTerror Laws

1/9

1

MAURITIUS:TERRORISMLEGISLATION

Prevention of Terrorism Act (POTA), 2002 was introduced to empower theMauritian legal system adequately to deal with the phenomenon of terrorism. The Actmakes provision for the prevention, suppression and combating of terrorism. It creates

new offences in our criminal law relating to terrorism. It introduces measures with a viewto gathering intelligence, carrying out investigations and ensuring enforcement in thematter. It provides for mechanisms of co-operation with foreign jurisdictions. At the sametime, it seeks to implement the international commitments of Mauritius in respect ofterrorism. Under the Prevention of Terrorism Act, there are strict restrictions and severepenalties for persons furnishing terrorists, terrorist organisations and other individuals,groups, undertakings and entities associated with such goods.1

Regulation 9 provides that no person shall, directly or indirectly, export, sell,supply or ship any arms, weapons, ammunitions, military vehicles andequipment, paramilitary equipment, spare parts and related material to any listedterrorist.

Regulation 10 provides that no owner or master of a Mauritius ship and no

operator of an aircraft registered in Mauritius shall, directly or indirectly, carry orcause or permit to be carried any arms, weapons, ammunitions, military vehiclesand equipment, paramilitary equipment, spare parts and related materials for anylisted terrorist.

Regulation 11 provides that no person shall directly or indirectly provide anylisted terrorist with technical advice, assistance or training related to militaryactivities.

Under Regulation 12it is an offence to contravene these Regulations.

The Prevention of Terrorism Act (Special Measures) GN 14 of 2003 Theregulations gives powers to the Central Bank, or the Financial Services Commission, todirect that any account, property or funds held by financial institutions under the relevant

statutory authority on behalf of any listed terrorist be frozen and a report be made insuch form and manner as it thinks fit.

The Act provides for the freezing of assets and funds of suspected internationalterrorists and terrorist groups pursuant to Part II section 10(6) of the POTA 2002.

Regulation 3 makes provision for the Central Bank, or the Financial ServicesCommission, to give directives to financial institutions under its regulatoryauthority to freeze any account, property or funds held on behalf of any listedterrorist by those institutions and cash dealers.

Regulations 7 and 8clearly list the offences purporting to funds, financial assetsor economic resources that are made available, directly or indirectly, to listedindividuals or entities or for their benefit, by nationals or by any person within theterritory of Mauritius.2

The Geneva Conventions Amendment Act 2003 incorporates into our law thehumanitarian obligations assumed by Mauritius and which have been set out in theGeneva Conventions of 12 August 1949. The Conventions have to do with treatment ofwar victims rather than terrorism. However, the recent Protocols Additional to the 1949Geneva Conventions extend the scope of the Convention. Thus, whereas Protocol Icovers victims of international armed conflict, Protocol II covers victims of non-international armed conflict. Provisions of the Geneva Conventions may becomerelevant: that is, when the authorities are dealing with persons detained for terrorist


2/9

2

offences. The latest amendment affords extra-territorial competence to the MauritianCourts and in this sense it joins the regime of extra-territorial jurisdiction provided for inthe Act. The amendment also criminalises the act of using the Red Cross emblem, orany other emblem, without the consent of the Minister. The legislation also provides forthe protection that a protecting power must ensure to a protected prisoner of war or aprotected detainee under the Geneva Conventions (the First, Second, Third and Fourth

Conventions) and their Protocol Additional (Protocol I and Protocol II).

Civil Aviation (Hijacking and Other Offences) Act 33 of 1985 (commonlyreferred to as CAHOOA) incorporates the following UN Conventions into nationallegislation:

Convention on Offences and Certain Other Acts Committed On Board Aircraft,signed at Tokyo on 14 September 1963.

Convention for the Suppression of Unlawful Seizure of Aircraft signed at TheHague on December 1970, entered into force on 14 October 1971.

Montreal Convention for the Suppression of Unlawful Acts Against the Safety ofCivil Aviation, which was signed at Montreal on 23 September 1971.

Protocol for the Suppression of Unlawful Acts of Violence at Airports servingInternational Civil Aviation of 1971 that entered into force on 6 August 1989.

The CAHOOA also brings within its jurisdiction other offences that exists in the penallaw: namely, assault, larceny, manslaughter, murder, unlawful detention, wounds andblows, all of which are offences in our Criminal Code. It also claims jurisdiction overpossession of a firearm, which is an offence under our Firearms Act.

Continental Shelf Act 1982 Incorporates the Protocol for the Suppression ofUnlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf. Itwas concluded in Rome on 10 March 1988 into Mauritius legislation and thereforeadequately satisfies the legal requirements of the Convention.

WeaponsFirearms Actprovides administrative and legislative controls relating to firearms. Theyare aimed at ensuring a more effective arms control, monitoring existing stocks,strengthening import and export control measures, reducing surplus arms, andpreventing and detecting illicit trafficking.3

The Act is being reviewed, inter alia, to incorporate our obligations under the followingProtocols of which Mauritius is signatory:

i) United Nations Programme of Action to Prevent, Combat and Eradicatethe Illicit Trade in Small Arms and Light Weapons in all its Aspects;

ii) Bamako Declaration on an African Common Position on the Illicit

Proliferation, Circulation and Trafficking of Small Arms and LightWeapons 1 December 2000;

iii) Protocol against the Illicit Manufacturing of and Trafficking in Firearms,their Parts and Components and Ammunition, supplementing theUnited Nations Convention against Transnational Organised Crime;and


3/9

3

iv) Protocol on the Control of Firearms, Ammunition and Other RelatedMaterials in the Southern African Development Community (SADC)Region signed on 14 August 2001 in Blantyre, Malawi.

It is to be noted that although Mauritius does not produce weapons or ammunition, thefollowing laws are in place:

i) The Explosives Act;

ii) The Firearms Act;iii) The Prevention of Terrorism Act and the Prevention of Terrorism (Special

Measures) Regulations; andiv) The Chemical Weapons Convention Act.

Under both the Explosives Act and the Firearms Act, a permit is required beforeimporting items under the established arms embargo. Such a permit is to be issued bythe Commissioner of Police when he is satisfied that requirements under existing lawshave been respected.

The Chemical Weapons Convention Act 2003 This Act gives effect to theConvention on the Prohibition of the Development, Production, Stockpiling and Use ofChemical Weapons and on their destruction. The Act establishes the Mauritius National

Chemical Weapons Authority, inter alia, to serve as the national focal point for effectiveliaison with other state parties to the Convention and the Organisation for the Prohibitionof Chemical Weapons (OPCW). The statutory duty of the Authority includes supervisionand monitoring of the enforcement of the Act; collection of data for reporting to theOPCW; supervision of domestic implementation of the Convention; collaboration withother state parties in subject-matter of the Convention. The Act, among other things,prohibits the development, production, acquisition, stock-piling or retention of chemicalweapons; and dealing in them, using them or collaborating with any person for suchactivities.

The Radiation Protection Act 2003 This new Act repeals a previous one by thesame name and provides for up-dated concerns about radiation. As with the

administration of chemical weapons, it establishes a Radiation Protection Authority, withregulatory functions, including the formulation of policies, codes and standards ofradiation protection. It also has the function of fulfilling the obligations of the Stateconcerning Conventions ratified in the field of nuclear energy.

Biological and Toxin Weapons Convention Act 2004 This Act incorporates theConvention on the Prohibition of the Development, Production and Stock-piling ofBacteriological (Biological) and Toxin Weapons and on their Destruction into our law. Itprohibits the development, production, stockpiling, acquisition or retention of anymicrobial or other biological agent or toxin that cannot be justified for prophylactic,protective or other peaceful purposes. Likewise, the development, production,stockpiling, acquisition or retention of any weapon, equipment or means of delivery

designed to use microbial or other biological agents or toxins for hostile purposes, or inarmed conflict, are prohibited. Interestingly, this Act binds the State but there is no suchprovision in comparable legislation relating to chemical weapons under the ChemicalWeapons Convention Act 2003.


4/9

4

Information TechnologyThe Computer Misuse & Cyber-crime Act 2003

This Act may be conveniently used to prevent or deal with cyber terrorism. Itcriminalizes unauthorised access to computer data, access with intent to commitoffences, unauthorised access to and interception of computer services, unauthorisedmodification of computer material, damaging or denying access to computer systems,unauthorised disclosure of a password, unlawful possession of devices and data,electronic fraud etc. Under the same law a number of orders, such as preservationorders, orders for the disclosure of preserved data, and orders for production of data,may be obtained from a J udge in Chambers, for purposes of investigation andprosecution. The authorities are empowered to seize or secure a computer system and

any information and communication technologies medium.

Data Protection Act, No. 13 of 2004provides for the protection of privacy rights ofindividuals in view of developments in techniques used to capture, transmit,manipulate, record or store data relating to individuals. The Act establishes a DataProtection Office which functions are set out inArticle 5.

Access Control

The Immigration Act

Regulates the entry and stay of non-citizens in Mauritius. The Act provides for theestablishment of a list of prohibited immigrants who shall not be admitted to Mauritius,especially persons involved in criminal activities, trafficking drugs, or reasonablysuspected of being engaged in any subversive activity directed against Mauritius, ordetrimental to the security of Mauritius or any friendly state. The Act also provides for theissue of residence permits, the refusal of admission to Mauritius, the prevention ofunauthorised disembarkation, powers to inspect vessels and to examine passengersand members of the crew, and to detain for removal from Mauritius. The Immigration Actdoes not make provision for asylum. In fact, Section 8 of the Act has been amended byPOTA to include non-citizens declared suspected international terrorists as ProhibitedImmigrants.4

Constitution of Mauritius The Constitution spells out conditions under whichpersons born in or outside Mauritius shall become citizens of Mauritius (Chapter III). Italso provide for basic human rights under Chapter II.

Customs Act Under the Act customs officers are empowered to arrest personsinvolved in the commission of smuggling, importing and exporting prohibited goods,which are criminal offences in Mauritius. Those powers are also conferred on policeofficers under the Police Act. Section (49) provides for the submission of informationconcerning international cargo and passengers:5


5/9

5

(a) In the case of a ship: Arriving from neighbouring Reunion Island, not later than five hoursbefore arrival; and Arriving from any other part, not later than 24 hours before arrival

(b) In the case of an aircraft: Arriving from Reunion island, upon arrival; and

Arriving from any other airport, not later than one hour before arrival.

FINANCING OFTERRORISM

The Convention for the Suppression of Financing of Terrorism Act 2003 The object of this new legislation is to give force of law to obligations taken by Mauritiuswhen it became party to the International Convention for the Suppression of theFinancing of Terrorism: Section 3. It amends the Prevention of Terrorism Act 2002 andgives a wide definition of funds to mean assets of every kind, including legaldocuments or instruments, electronic or digital, or otherwise.

The Dangerous Drugs Act 2000 Part IIIof the Act creates the offences. Except fordrug consumers who are allowed an opportunity for rehabilitation, the penalty forpeddlars, importers and traffickers are heavy. Provision is also made for the forfeiture ofassets upon conviction.

The Dangerous Drugs (Amendment) Act 2003 The amended Act of 2003 givesextensive powers to the Commissioner of Drugs to enter into the premises of personssuspected of offences related to drug dealing. The amendment aims to put in placeimproved legal provisions to combat dealing in dangerous drugs.

Dangerous Chemicals Control Act 2004 The main object of this new law is toprovide a better legal framework for the control of dangerous chemicals so as to prevent

damage to health and the environment by chemical substances, and to provide betterprotection for workers, members of the public and the environment. The Act also sets upan Enforcing Agencies Co-ordination Committee for activities in the area. It classifiesand labels dangerous chemicals. A licensing system is put in place for the propercontrol, management and administration of importing, exporting, manufacturing, salesdistribution, trade, transport and storing of dangerous chemicals.

The Prevention Of Corruption Act 2002 A new Independent Commission AgainstCorruption has been set up, following recommendation of a Select Committee of theHouse. It has wide investigatory powers. It creates a set of new corruption offences,which includes, Traffic dinfluence. It is vested with powers for search and seizure, andpowers of arrest in certain cases.

It provides for property restraint orders: sub-sections 6264.

The Act also contains a number of provisions relating to Mutual Legal Assistance andExtradition. The manner in which these should be executed is set out in Sections 6580.

It also offers protection to witnesses and anonymity to informers under Sections 4849


6/9

6

The Financial Intelligence and Anti-Money Laundering Act 2002 (FIAMLA) The Act provides for the establishment of a Financial Intelligence Unit and a ReviewCommittee since financial intelligence gathering is crucial in the fight against moneylaundering and its linkage with the financing of terrorism. This Act is meant to deal with:

Money-laundering: Sections 315. Section 14 of FIAMLA stipulates that banks,financial institutions, cash dealers and members of relevant professions or

occupations have an obligation to make a Suspicion Transaction Report (STR) tothe Financial Intelligence Unit on any transaction which they have reason tobelieve is a suspicious transaction.6

It offers a fairly wide definition of the concept money-laundering Section 3. Reporting obligations are imposed on financial institutions. It also establishes the

aforesaid Financial Intelligence Unit and Review Committee. After gatheringintelligence, it may refer them to investigatory or supervisory authorities: namely,the Commissioner of Police, ICAC and the Comptroller of Customs for inquiryand prosecution, if necessary. Mutual Legal Assistance and Extradition mattersare provided for in Part VIof the Act.

Under the Act dealings in the proceeds of terrorism amount to money laundering

offences.Suspicious transactions in respect of terrorism are now dealt with in Section 2 ofFIAMLA.

The Financial Intelligence and Anti-Money Laundering Regulations 2003 The Regulations provide for the verification of the true identity of all customers and otherpersons with whom banks, financial institutions and cash dealers conduct transactions,and reinforce the framework that was existing in the Banking Act.7

The Anti-Money Laundering (Miscellaneous Provisions) Act 2003 The mainobject of the Act was to amend FIAMLA to provide for the formal setting up of theNational Committee for Anti-Money Laundering and Combating the Financing of

Terrorism and to replace the Review Committee of the Financial Intelligence Unit (FIU)by a Board. By this Act, the Financial Intelligence Unit is, moreover, empowered to issueguidelines to financial institutions, cash dealers and members of the relevant professionsor occupations, on the manner in which they should submit Suspicious TransactionReports (STRs) to the FIU.

Moreover, through this Act, the Bank of Mauritius and the Financial ServicesCommission can issue codes and guidelines on anti-money laundering and thecombating of financing of terrorism, and to enforce compliance with those codes andguidelines. A derogation from the duty of confidentiality is provided for banks to allowthem to report suspicious transactions and supply information relating to a reportedsuspicious transaction to the FIU. Similarly, through this Act, the Bank of Mauritius andthe Financial Services Commission are allowed to refer information suggesting apossible money-laundering offence or a suspicious transaction to the FIU. The Directorof the FIU is also given the power to request further information in relation to a reportedsuspicious transaction.8

Banking Act, 1988 Section 3(2) of the Banking Act 1988 provides that no personshall transact any category 1 and category 2 banking in Mauritius without a license fromthe Central Bank.


7/9

7

Section 12(1) provides that no category 1 banking and category 2 banking shall betransacted except by a bank.

Section 13 provides for the examination of books, records and accounts by the CentralBank in cases of suspected unlicensed banking. Section 13A(1) prohibits the business ofdeposit-taking without the written authorisation of the Central Bank,9

Banking Act 2004 and the Bank of Mauritius Act, 2004were primarily designedto instill discipline in the Banking, Non-Bank Deposit Taking Institutions and the MoneyChangers and Foreign Exchange Dealers sectors by encouraging institutions fallingunder the jurisdiction of the Central Bank to ensure that they are not abused byperpetrators of terrorist acts.10

Notwithstanding sections 30 and 31 of the Bank of Mauritius Act, but subject tosubsection (2), no person shall make or accept any payment in cash in excess of350,000 rupees (12,000 US dollars), or an equivalent amount in foreign currency, orsuch other amount as may be prescribed. To set best international practices inpreventing the financing of terrorism, including subsection (1), every bank, financial

institution or cash dealer shall a) Verify, in such manner as may be prescribed, the true identity of all customers

and persons with whom they conduct transactions;b) Keep such records, registers and documents as may be required under this Act

or any regulations made under this Act;c) Upon a Court order, make available such records, registers and documents as

may be required, andd) Forthwith report every suspicious transaction.11

Financial Services Development Act 2001 provides for the establishment andmanagement of a Financial Services Commission to regulate non-bank financialservices, the establishment of a Financial Services Consultative Council which will serve

as a forum for discussions of the innovative developments and international trends in thefield of financial services, and of a distinct and separate Financial Services PromotionAgency for the promotion of the development of the financial services industry inMauritius.

Insurance (Amendment) Act, No. 22 of 1990The Act defines offshore insurance business as insurance business conducted withnon-residents in currencies, other than the Mauritian currency, in respect of risks outsideMauritius.

Section 47stipulates that the Minister may cancel the registration of an offshore insurerwhen such offshore insurer or its affiliate or the company of which it is a subsidiary, has

been convicted by a domestic court, a court of the Commonwealth or any other court asmay be prescribed for the purposes of the Banking Act 1988, of a crime related to theuse, or laundering in any manner, of illegal drug proceeds or related to embezzlement orother illegal manipulation of funds, provided such conviction is a final conviction.

Securities (Central Depository, Clearing and Settlement) Act, No. 30 of 1996provides for the establishment and regulation of a central depository, clearing andsettlement service in order to facilitate dealings in securities.


8/9

8

Stock Exchange Act No. 38 of 1988 regulates Stock Exchange operations inMauritius and is therefore applicable in the irregular use of the stock exchange in thefinancing of terrorism.

Trusts Act No 14 of 2001Differentiates between different types of trusts. Of importance: reference to a charitabletrust, see Section 20

Unit Trusts Act No 26 of 1989 makes provision for the setting up, operation andmanagement of unit trust schemes.

Foreign Exchange Dealers Act, 1995 provides for the orderly operation anddevelopment of the foreign exchange market in Mauritius. Foreign exchange dealers andother related businesses are regulated under this Act. Banks and deposit takinginstitutions are regulated under the Bank of Mauritius Act and the Banking Act 1988 andNon-Bank Financial service providers are regulated under the Financial ServicesDevelopment Act 2001.12

Section 3(1) of the Foreign Exchange Dealers Act 1995 provides for specified types oflegal persons to carry out the business of a foreign exchange dealer or a money-changer, if they obtain authorisation from the Minister to whom responsibility for financeis assigned.13

Financial Reporting Act No. 45 of 2004regulates the reporting of financial mattersand to establish the:

Financial Reporting Council (section 3). Under Section 72 the Council shalldevelop, issue and keep up-to-date financial reporting and accounting standards,and ensure consistency between the standards issued and the InternationalFinancial Reporting Standards. The Councils powers to investigate areprovided under Section 76.

The Mauritius Institute of Professional Accountants includes those registered asprofessional accountants under Section 51

The National Committee on Corporate Governance established under Section63. Its objects are set out in Section 64 while its functions are stipulated underSection 65.

MUTUAL LEGALASSISTANCE AND EXTRADITION

The Extradition Act of 1970Section 7of the Extradition Act provides that an offender shall not be surrendered to a

foreign state where:a) The offence in respect of which the request for his surrender is made is one of a

political character; orb) He proves to the satisfaction of the Minister that the request for his surrender has

in fact been made with a view to trying or punishing him for an offence of apolitical character.

It is clear from those provisions that mere claims of political motivation will not sufficeas a basis for refusing requests for extradition of alleged terrorists.14


9/9

9

Mutual Legal Assistance in Criminal and Related Matters Act, 2003Theobject of this new legislation is to enable optimum international co-operation andcollaboration between the Republic of Mauritius and a foreign state or an internationalcriminal tribunal, on investigation, prosecution, trial and enforcement of orders in seriousoffences and related civil matters. It provides for the widest range of international

cooperation to be given and received by Mauritius, promptly and to the fullest extentpossible, in investigations, prosecutions and other proceedings concerning seriousoffences.15

1United Nations Security Council, Reply pursuant to Letter 3 from the UNSC Counter-Terrorism

Committee, S/2004/159, 27 February 2004, p. 162United Nations Security Council, Reply pursuant to Letter 3 from the UNSC Counter-Terrorism

Committee, S/2004/159, 27 February 2004, p. 43United Nations Security Council, Mauritius response to the questions contained in the letter from

the Chairman of the Counter-Terrorism Committee dated 15 April 2002, S/2002/880, 1 August2002, p. 84United Nations Security Council, Mauritius response to the questions contained in the letter from

the Chairman of the Counter-Terrorism Committee dated 15 April 2002, S/2002/880, 1 August2002, p. 95United Nations Security Council, Reply pursuant to Letter 3 from the UNSC Counter-Terrorism





Committee, S/2004/159, 27 February 2004, p. 910United Nations Security Council, Mauritius response to the questions contained in the letter

from the Chairman of the Counter-Terrorism Committee dated 15 April 2002, S/2002/880, 1

August 2002, p. 311United Nations Security Council, Report of the Republic of Mauritius on the actions taken by the

Government to implement Security Council Resolution 1373 (2001), S/2001/1286, 27 December2001, p. 712United Nations Security Council, Mauritius response to the questions contained in the letter

from the Chairman of the Counter-Terrorism Committee dated 15 April 2002, S/2002/880, 1August 2002, p. 713United Nations Security Council, Reply pursuant to Letter 3 from the UNSC Counter-Terrorism

Committee, S/2004/159, 27 February 2004, p. 914United Nations Security Council, Mauritius response to the questions contained in the letter

from the Chairman of the Counter-Terrorism Committee dated 30 October 2002, S/2003/260, 10March 2003, p. 515United Nations Security Council, Report of the Republic of Mauritius on the actions taken by the

Government to implement Security Council Resolution 1373 (2001), S/2001/1286, 27 December2001, p. 10

mauritius notes on antiterror laws

Documents