IN THE SUPREME COURT OF MAURITIUS

(Application under Sections 17(1) and 83(1) of the Constitution)

In the matter of:-

1 Mrs Yogita BABBOO

2 Ms Marise Sylvianne Doris JULIEN
3 Mrs Marie Michele Patricia MALLET
4 Ms M J Lillyrose CHAPERON
5 Mrs Anju Devi GYA
6 Ms G Sperenza FOLLETTE
7 Mr Denis LABONNE

Of Air Mauritius Cabin Crew Association, having its office at Route Berthaud,
Vacoas
Applicants
V.S

Air Mauritius Ltd., service to be effected at 19 th Floor, Air Mauritius Centre,

John Kennedy Street, Port-Louis
Respondent

In the presence of:-

1 Hon. Dr. Kailesh Kumar Singh JAGUTPAL, Minister of Health and

Wellness, service to be effected at his residential Address situate at
W56 Bois de Chandelle Morcellement Aurea, Côte d'Or

2 The State of Mauritius, duly represented by its principal legal

adviser, the Hon.Attorney General, service to be effected at Level 4,
Renganaden Seeneevassen Building, Maillard Street, Port-Louis

Co-Respondents

I, Mrs Yogita BABBOO, a member of Air Mauritius Cabin Crew Association, residing at La
Caverne No.2, Vacoas, holder of National Identity Card No. B1401764200638

MAKE SOLEMN AFFIRMATION AS HINDU AND SAY THAT:-

1. I am Applicant No. 1 in the present matter and I have been also been duly authorised to
affirm this present affidavit on behalf of Applicants Nos. 2, 3, 4, 5, 6 and 7 who are also
members of Air Mauritius Cabin Crew Association.
2. I aver that Applicants are all aggrieved parties inasmuch as our constitutional rights are
seriously affected by the regulations made by Co-Respondent No.1 implemented by
Defendant, to wit Consolidated COVID-19 Regulations 2021 which inter alia impose upon
us mandatory requirement to get fully vaccinated and restrict our access to our places of
work at the premises of Respondent, furthermore exposing us to disciplinary sanctions on
account of alleged insubordination in case of refusal and further exposing them to the risks
of losing our jobs and our long term of service with Respondent and thus affecting our
livelihood and our daily survival.

3. I aver that the said regulations, to wit Consolidated COVID-19 Regulations 2021 also
restrict our access to many places and premises and we are affected in their daily lives
inasmuch as we are prohibited access to basic services and places such as hairdresser/
beautician saloon, health club, gymnasium, food courts, restaurants, snacks, cinema and
hotel. We are further denied access to such basic services which are elementary in any
democratic and civilised society.

4. The Respondent is the employer of Plaintiffs and the flag carrier airline of Mauritius. The
Respondent has its headquarter in Port-Louis, with its hub based at Sir Seewoosagur
Ramgoolam International Airport.

5. The Co- Respondent No. 1 is a Member of the National Assembly and the present Minister
of Health and Wellness.

6. I aver that early last year following the outbreak of corona virus in Wuhan, China, and no
prompt nor reasonable preventive action was taken by Co-Respondent No.1 to prevent
the introduction and the spreading of the virus, such as closing borders which could have
been reasonably expected from a responsible government. Upon being questioned in
Parliament by the then Leader of the Opposition in March 2020, Co-Respondent No.1
sarcastically stated that there is no corona virus in Mauritius.

7. I aver that on the very eve of the lockdown last year, on night of 19 th March 2020, Co-
Respondent No.1 repeatedly refused to accept that there were at the material time,
persons who were infected by corona virus in Mauritius. A few minutes after Co-
Respondent No.1 vehemently denied the presence of any corona virus in Mauritius, the
Prime Minister on the MBC TV, affirmed the contrary stating that there were three active
cases and he then announced lock down of Co-Respondent No.2.

8. I am advised that Co-Respondent No.2 is a sovereign democratic State, bestowed by its

former colonial master, with a written Constitution based on the Westminster model. When
Mauritius Independence Act was passed in the UK, same was complemented by the
Mauritius Independence Order 1968 in GN 54 of 1968 and the Constitution was originally
published as the Schedule to the aforesaid Order.

9. I aver that the policy of Co-Respondents has so far been a complete failure as compared
to year 2020. We, Applicants also note with dismay that Co-Respondents have not been
transparent in its policy to allow a number of private jets and a number of foreign delegates
to come to Mauritius without undergoing any quarantine period.

10. I am advised that last year, during the pandemic, the Quarantine Act 2020 – Act No.2 of
2020 (hereinafter referred to as “the said act”) was voted and was proclaimed on 12th May
 2020. Its short title reads: To provide appropriate measures for the prevention and spread
of communicable diseases.

11. I am advised that Section 13 of the said Act enables Co-Respondent No.1 to make such
regulations as he thinks fit for the purposes of the act and by virtue of same, on 2 nd June
2021, Defendant No.1 made the COVID-19 (Restriction of Access to Specified Institutions)
Regulations 2021 - Government Notice No. 119 of 2021 and as per Regulation 7, the
aforesaid regulations came into operation on 21 st June 2021. On 16th August 2021, Co-
Defendant No.1 revoked the COVID-19 (Restriction of Access to Specified Institutions)
Regulations 2021 - Government Notice No. 119 of 2021 and replaced same by the COVID-
19 (Restriction of Access to Specified Institutions, Places and Premises) Regulations 2021
- Government Notice No. 194 of 2021. On 30th September 2021, Co-Defendant No.1
revoked, inter alia, the two aforementioned previous regulations and replaced same by the
Consolidated COVID-19 Regulations 2021 - Government Notice No. 245 of 2021
(hereinafter referred to as “the said regulations”). It appears to us that Co-Respondent
No.1 is proceeding by way of trial and error.

12. I am advised that Part V of the said Regulations also provides for restriction of access to
specified institution, places and premises unless one produces inter alia –

(a) his COVID-19 vaccination card certifying that he has been vaccinated with a
COVID-19 vaccine, as per Sixth Schedule; or

(b) in case he has not been vaccinated with a COVID-19 vaccine, an RT-PCR test
result slip certifying a negative result dating back to not more than 7 days from
the date of the RT-PCR test was undertaken, as per Seventh Schedule.

13. I am advised that in the said Regulations, “specified institutions, places, premises” have
been defined in its Fifth Schedule to include, inter alia, Sir Seewoosagur Ramgoolam
International Airport and the exempted persons are (a) a crew member of an incoming or
departing aircraft, other than a crew member of Air Mauritius Ltd; (b) a passenger and one
other person accompanying the passenger; (c) a person under the age of 18. I am advised
that we Applicants do not form part of the exempted persons and that such policy is
discriminatory.

14. I am also advised that in the said Regulation, “specified institutions, places, premises” have
further been exhaustively listed in its Fifth Schedule to include inter alia :

(a) a crèche, a day-care centre, a kindergarten, a special education needs institution,

a pre-primary school, a primary school, a secondary school, a tertiary institution, a
vocational training centre and any other educational or training institution, whether
Government-owned or private-owned; and

(b) a hospital, mediclinic, dispensary, private health institution, area health centre,
community health centre, cabinet médical and cabinet dentaire;

(c) residential care home, police station, fire station, beautician/ hairdressing saloon,
cinema halls, restaurants, snacks, pubs, wellness centres, gyms.

15. I am advised that as per the aforesaid Regulations, should Applicants wish to have access
to any other “specified institutions, places or premises”, we either have to be vaccinated
 with a COVID-19 vaccine OR if we have not been vaccinated, they have to provide a RT-
PCR test result slip certifying a negative result dating back to not more than 7 days from
the date of the PCR test was undertaken, failing which they will be denied access. I further
aver that Co-Respondent No.1 has also made public recently his intention to restrict
access to supermarkets only to persons who are fully vaccinated and have the relevant
vaccination pass only with the intent of denying and depriving Applicants and other
unvaccinated citizens access and opportunity to buy foodstuffs and other household
commodities for their daily living in the near future.

16. I aver that as per the aforesaid Regulations, should we wish to have access to our work
place namely on the premises of Respondent, we either have to be vaccinated with a
COVID-19 vaccine and if we have not been vaccinated, we do not have the option to
provide a RT-PCR test result slip certifying a negative result dating back to not more than
7 days from the date of the PCR test was undertaken and that failure to provide the option
of RT-PCR test constitutes further discrimination.

17. I aver that Respondent as well Co-Respondents have indirectly imposed upon us the
mandatory requirement to be fully vaccinated, failing which we run the risk of being denied
access to our work places and further exposing us to alleged insubordination/ disciplinary
sanctions and ultimately losing our jobs and all our acquired benefits. The Respondent has
imposed upon us leave without pay as per new employment contract and in view that we
are not allowed access to our work places on account that we are not vaccinated, our
absence at work is viewed as if leave without pay from work and same is being deducted
from our bank of sick leaves.

18. I aver that mass vaccination for the Mauritian population started on 26 th January 2021 and
the vaccination campaign gave priority to frontline workers including health care
professionals, employees of the tourism industry as well as senior citizens and those with
underlying medical conditions.

19. I aver that we, Applicants have been apprised that the vaccine aims at mainly developing
immunity and is designed to reduce the risk of any aggravating consequences/ severe
illnesses following the exposure to the infection. Therefore, I aver that there is no certainty
that the vaccine will provide immunity against infection.

20. I have been apprised that one can transmit the virus to others after he/ she has been
vaccinated, even if one does not actually becomes sick or is asymptomatic.

21. I have been further apprised that because COVID vaccines have only been developed in
the past months and it is too early to know the duration of protection, if any, of COVID-19
vaccines. Research is ongoing to answer this question.

22. I aver that the vaccines initially provided by Co-Respondents namely Covaxin of Bharat
BioNtech and Sinopharm of Beijing Institute of Biological Products are not recognised by
some European States and Australia as they are considered as substandard. Interestingly
same were not particularised in the former Regulations.

23. I aver that we, Applicants are anxious about the safety of the vaccine especially concerning
the potential short-term and/ or long-term side effects which may arise and whether such
vaccine will cause other infections or diseases in our organisms in view that such vaccine
has not been tested over time and their long term side effects are yet to be discovered.
24. I aver that we, Applicants are also unaware of how many doses that one will be required
to take and over what period of time in future, and what the efficacy of such vaccine is
supposedly and over which period of time and as at date a third dose is required for any
person to be considered as fully vaccinated following recent regulations made by Co-
Respondent No.1 to the effect that as at date one is mandatorily required to be vaccinated
three times to be considered as fully vaccinated.

25. I aver that it has come to our knowledge that the short-term side effects of the authorised
COVID-19 vaccines are similar. The side effects typically start within a day or two of getting
the vaccine and may include pain, redness, or swelling at the injection site, fever,
headache, nausea, body aches.

26. I aver that it has also come to our knowledge that some people have experienced more
serious short-term side effects after getting a COVID-19 vaccine. These side effects
include immediate allergic reactions and can include symptoms like hives, wheezing,
swelling, trouble breathing, tightening of the throat, abdominal pain, a rapid heartbeat, low
blood pressure (hypertension), blood clots, partial paralysis of the body and heart failure
and death. We Applicants have recently been apprised that in Parliament in UK, the British
Government has admitted that Covid vaccination destroys natural immunity of persons.

27. I aver that because the COVID-19 vaccines have only been administered in the past
months, the long-term effects are unknown at this time. We, Applicants are apprised of
many instances over the past months where persons have fallen seriously ill following
vaccination and other instances where persons have passed away following vaccination,
for instance dialysis patients, as per the statements of Co-Respondent No.1 in the National
Assembly. We, Applicants are also apprised of instances where persons being vaccinated,
have been contaminated by corona virus and consequently they have either fallen
seriously ill or passed away.

28. I aver that our concern about the vaccine has materialised with the fact that the Co-
Respondents made it mandatory to sign a consent form which is rather a waiver form prior
to getting vaccinated, which effect will be to renounce all one’s rights to claim
compensation in case of serious injury or death as a result of the vaccine.

29. We, Applicants have been apprised that new and alternative treatment for covid-19 are
available such as molnupiravir and other capsules and that research is on-going such that
mandatory vaccination has become obsolete. Furthermore, we, Applicants, are given to
understand that covid-19 vaccines are inefficient with regard to new variants.

THE PRESENT APPLICATION

30. We, Applicants have been advised that the Constitution is the supreme law of the land and
in its entrenched clauses in Chapter Two, recognizes and protects fundamental rights and
freedoms of the individual amongst which, protection of the law which includes protection
against the application of any unjust laws (vide Pandoo v The State 2006 SCJ 2005),
protection of right to life, protection from inhuman or degrading treatment, protection of
privacy of one’s physical integrity and protection of freedom of movement.
31. We have been advised that whilst interpreting the right to privacy in particular the physical
integrity of the person under Section 9 of the Constitution in

Madhewoo M. v The State of Mauritius 2015 SCJ 177, the Full Bench of Supreme Court
observed that:

“Any undue intrusion or any examination or inspection of any part of the body
of a person would thus, in our view, fall within the purview of a search of a
person for the purposes of section 9(1)”.

32. We are of the considered view that Co-Respondent No.1 through the said Regulations with
the assistance of Respondent and Co-Respondent No.2, wants to impose Covid-19
vaccination upon us in a subtle manner, by restricting access to our work places and
forcing us to go on leave without pay if we refuse. We, Applicants consider that we are
being forced to choose between keeping our jobs by getting vaccinated or losing our jobs
by refusing to get vaccinated. Such exertion/ pressure on our income, which is our only
means of subsistence for ourselves and our respective families, amounts to considerable
pressure on our free will, leaving us with no option.

33. We, Applicants, consider that we are being forced or coerced to consent to vaccination
and same constitutes an intrusion or infringement of our right to privacy of our physical
integrity which is not reasonably justifiable in a democratic society be it in the interests of
public safety, public order, public morality, public health or for the purpose of protecting
the rights or freedoms of other persons. We, Applicants are of such view because first,
there is no certainty that the vaccine will prevent us from being infected and further from
transmitting such infection/ virus to other persons and secondly we have been apprised
that some persons who were vaccinated fell seriously ill with blood clots in their bodies and
some even passed away as a result of such vaccine and furthermore other persons who
were vaccinated, were still infected with corona virus, following which some of them fell ill
whilst others passed away and Co-Respondents have failed to carry a survey on same
and have been very economical about such events.

34. We are advised that the aforesaid COVID-19 Regulations 2021 are subsidiary legislations
that same have not been voted by the elected members at the National Assembly who
represent the will of the people, nor were the said Regulations subject of any parliamentary
scrutiny or debate. We further aver that the said Regulations are undemocratic and
constitute colourable legislation/ device which undermines our constitutionally protected
entrenched rights by imposing upon us compulsory vaccination without our consent.

35. We are advised that fundamental human rights are to be interpreted generously and
purposively so as to give effect not only to the letter but also to the spirit of the Constitution,
that the Supreme Court is the Guardian of the Constitution and by virtue of its original
jurisdiction in constitutional questions and the control of constitutionality, any law or
regulation which infringes or is inconsistent with their fundamental constitutional rights may
be struck out as null and void by the Supreme Court.

36. We are also advised that notwithstanding that Parliament is sovereign by virtue of its
legislative and constituent powers such powers are subject to the Constitution and that so
long as the Constitution prevails in its present form, it is not in accord with the letter or spirit
 of the Constitution, as it presently stands, to legislate so as to enable the Executive to
infringe fundamental rights and freedoms of the individual which are entrenched and
constitutionally protected.

37. We are further advised that unlike in the UK, there is control of constitutionality by virtue
of a written Constitution which is the supreme law of the land and which confers original
jurisdiction on the Supreme Court in relation to constitutional questions. The Supreme
Court, once observed :

“If a law undoubtedly passes the test of constitutionality, then it would be

none of the Court’s business even to think of questioning the reasonableness,
or wisdom, of the measure. Within the framework of the Constitution,
Parliament's right to pass laws, however unpalatable, stringent or to our
minds unfair, remains unfettered. But the Court's power to control the
Executive, in accordance with its constitutional role, must also remain, and be
seen to remain, unimpaired”.- as per late SPJ Glover as he then was in
Noordally v DPP & AG 1986 MR 204

38. We are further advised that the Supreme Court acts as checks and balances over acts of
the Executive and the Legislature whenever there is complaint of violation of constitutional
provisions and human rights notwithstanding that Parliament is sovereign by virtue of its
law making power and its constituent power. The Supreme Court, on one such occasion
observed :

“where Parliament exercises sovereign powers under the Constitution and the
Courts are empowered to exercise a particular jurisdiction which itself
requires an enquiry into the exercise of those powers by Parliament, then the
jurisdiction of the Courts must be exercised to the appropriate extent in order
to enable it to determine the particular question before it”. - as per late SPJ
Lallah as he then was in Attorney General v Ramgoolam 1993 MR 81

39. We are further advised that as per the said Regulations made by Respondent No.1, we do
not have the option of producing an RT-PCR test result in order to have access to our work
places and that same is discriminatory when compared with incoming crew of other
airlines.

40. We, Applicants are advised that the mandatory requirement for getting vaccinated is not
reasonably justifiable in the interests of public safety and public health since there is no
certainty that one will neither get infected by Covid-19 nor transmit the infection, if one is
exposed to Covid-19 virus. Unlike other vaccines, the Covid-19 vaccines have not stood
the test of time, we Applicants are unsure of their safety and efficacy. Furthermore, the
initial Covid-19 vaccines provided by Co-Respondents are not recognized by European
States and Australia amongst other countries as same are considered as substandard. It
is interesting to note that unlike the situation in other countries, Co-Respondents have
already earmarked the likely consequences of vaccination including serious injury and
death and have in advance exonerated themselves from all liabilities by imposing on the
citizen a consent form in terms of waiver of all claims following negative consequences of
the said vaccines.
41. We, Applicants are advised and verily consider that the interference caused/ likely to be
caused to one’s constitutional right under Section 9 of the Constitution in view that one is
now being compelled to get vaccinated is not proportionate to any legitimate aim that
Respondent and Co-Respondents are seeking to pursue for the abovementioned reasons.

42. We, Applicants also aver that the registration and consent form for Covid-19 vaccination
issued by the Government requires the beneficiary to waive all claims against, inter alia,
Co-Respondents. We, Applicants, also aver that since one is now compelled to get
vaccinated by Co-Respondents, one will have to sign the consent form and that constitutes
a breach of one’s constitutional right under Section 3 (Protection of the law) in view that
one will be precluded to claim any damage of whatsoever nature against Co-Respondents
or to seek redress for any complication following the administration of the vaccine. By
signing the said consent form, we, Applicants will be voluntarily waiving our rights to claim
redress under Sections 3 and 10(8) of the Constitution.

43. We, Applicants therefore consider it most unfair and appalling that we are being forced to
get vaccinated by Respondent and Co-Respondents and by compulsorily signing the
consent form, we would be waiving all possible future claims against Respondent and Co-
Respondents and would therefore voluntarily relinquish our rights to seek justice in any
Court of Law.

44. We, Applicants have been apprised that the Courts in other jurisdictions have been quick
to declare that mandatory vaccination is contrary to fundamental rights of the citizen. We,
Applicants have recently been apprised that governments throughout the globe, namely in
France, England and Germany, are now waiving sanitary restrictions in relation to Covid-
19 pandemic and have recently cancelled the requirement for a vaccine pass in order to
get to public places.

THE FINE

45. We, Applicants are advised that Regulation 24 of the said regulations also provides that
an offender who contravenes these regulations, or are is found in possession of a forged
vaccination card or RT-PCR test result slip, shall commit an offence and shall, on
conviction, be liable to a fine not exceeding 500,000 rupees and to imprisonment for a term
not exceeding 5 years.

46. We, Applicants are advised that despite legislative powers is generally permissible,
Regulations 13 and 24 together with the Fifth Schedule of the said Regulations are
unconstitutional and contrary to Section 45 (1) of the Constitution inasmuch as Co-
Respondent No.1 cannot by way of regulations provide for such offence as well as such
penalty on conviction.

THE PRAYER

47. We, Applicants perceive that at this juncture, there is an imminent risk of serious harm
being caused to us, Applicants and this infringes our constitutional rights to liberty and
privacy. In view of the urgency of the situation, the immediate suspension of Sections 4, 5
 and 6 of the said Regulations, is imperative pending the determination of our Plaint with
Summons which is coming for Mention on 5th May 2022. The risks that we, Applicants
apprehend, will materialise following any refusal to grant the stay order and such risks
cannot be averted in the present circumstances without any interference with the continued
enforcement of Regulations 13 and 24 of the said Regulations.

48. We, Applicants aver that, should the present application to stay the application of
Regulations 13 and 24 (together with the Fifth Schedule) of the said Regulations not be
granted, we, Applicants would be irreparably and irretrievably prejudiced in the eventuality
that we are successful in our Plaint with Summons pending before the Supreme Court.

49. We, Applicants will also eventually pray in our Plaint with Summons from the Honourable
Court for a judgment :-

a) Declaring that Regulations 13 and 24 of the said Regulations together with the Fifth
Schedule are in breach of Sections 1, 3, 4, 7 (1) , 9, 15 and 16 of the Constitution
and therefore null and void;

b) Declaring that the said Regulations are in breach of Sections 1 and 45 (1) of the
Constitution and therefore null and void

c) Ordering the Respondent to allow us access to our places of work without being
vaccinated for the aforesaid reasons;

d) AND/ OR For any other order and/ or declaration that the Honourable Court as
Guardian of the Constitution may deem, fit, proper, reasonable and equitable in the
circumstances.

50. In these circumstances and pending the hearing and determination of the Plaint with
Summons ( ANNEX A ), it is most urgent that Your Lordship grants an interim Order :-

a) For a stay of the application of Regulations 13 and 24 (together with the Fifth
Schedule) of the Consolidated COVID-19 Regulations 2021, as same in breach of
Sections 1, 3, 4, 7 (1) , 9, 15 and 16 of the Constitution;

b) For Respondent to allow us, Applicants access to our work places without the
mandatory requirement of getting vaccinated with Covid vaccines

c) To prevent Respondent and Co-Respondents from enforcing the said Regulations

quoad us, Applicants, until the final determination of the present constitutional
challenge;

d) AND/ OR any other Order (s) which Your Lordship, as Guardian of the Constitution,
may deem fit, proper, just and equitable and in the circumstances, in the interests
of justice.

51. I, pray accordingly.

Solemnly affirmed by the abovenamed deponent ]
At Chambers, New Court House ]
Port Louis, this 14th day of March 2022 ]

Drawn up by me Before me
On 14/ 03/ 2022

Me V Atmarow
Attorney at law Supreme Court

This affidavit is being affirmed in connection with an application to be made before the
Supreme Court in the above case.

Me V Atmarow
Attorney-at-Law