The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 14 of 1997

 

D. Matadeen and Another Appellants

v.

M.G.C. Pointu and Others and  Respondents

The Minister of Education and Science and AnotherCo-Respondents

 

 

FROM

 

THE SUPREME COURT OF MAURITIUS

 

---------------

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 18th February 1998

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Present at the hearing:-

Lord Browne-Wilkinson

Lord Hoffmann

Lord Hope of Craighead

Lord Clyde

Mr. Justice Gault

  ·[Delivered by Lord Hoffmann]

 

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1.The Certificate of Primary Education.

This appeal concerns the constitutional validity of new Regulations for the Certificate of Primary Education Examination ("CPE") issued by the Mauritius Examination Syndicate in March 1995 and intended to apply to the examinations taken in November 1995 and thereafter.  The CPE is taken by all children in Mauritius at the end of Standard 6, their last year in primary school.  There are four compulsory subjects: English, Mathematics, French and Environmental Studies (formerly called Geography).  Children who take the examination are ranked in order of attainment in these subjects.  Ranking is a matter of great importance for a child's future because it determines which secondary school he or she may attend.  To obtain a place in one  of  the  more  academically  oriented  schools (les bons collèges) it is necessary to be one of the first 2,000 boys or 2,000 girls.

 

1. The Regulations challenged in these proceedings provided for an optional fifth paper in one of a number of Oriental languages.  There had been such an optional paper since 1987 which could be taken into account for the purposes of deciding whether a candidate qualified for the Certificate of Primary Education ("certification"), but only the four compulsory subjects counted for the purpose of ranking.  The effect of the change made by the new Regulations was that candidates who offered an Oriental language would be ranked on their marks in English, Mathematics and the best two out of the other three papers.  A candidate who offered only the four compulsory subjects would be ranked on the results of those subjects as before.

 

2. The question of introducing Oriental languages into the CPE syllabus had been under discussion for some years.  In 1986 a Select Committee of the Legislative Assembly (as Parliament was then called) recommended that an optional paper chosen from a number of classic Oriental languages - Hindi, Urdu, Tamil, Telegu, Marathi, Mandarin Chinese and Arabic - be added to the CPE for the purposes of both certification and ranking.  To provide an option for children disinclined to study an Oriental language, the Committee recommended that a new subject to be called Cultures and Civilisations of Mauritius be introduced.  This did not prove practicable and as a result the recommendations of the Committee were only partially implemented.  The optional paper in Oriental languages was introduced for the purposes of certification but not for ranking.  A new Select Committee was appointed to reconsider the matter in 1991.  In December 1993 it recommended the scheme which was subsequently approved by the Government and adopted by the Regulations which are the subject-matter of this appeal.

 

3. It is unnecessary for their Lordships to say more about the merits of the scheme than that the Select Committee obviously gave the matter the most careful consideration.  A large part of the population of Mauritius is of Eastern origin and the Oriental languages are part of the island's cultural heritage.  The optional paper was introduced in 1987 as a recognition of their importance.  But many regarded this as insufficient because, given the importance of the final order of  merit,  children  naturally  concentrate their efforts on the subjects which count for ranking.  On the other hand, the avoidance of unfairness to children who did not want to take an Oriental language paper was a matter of some difficulty which had defeated the 1984 Select Committee.  It is perhaps a tribute to the scheme put forward by the 1991 Select Committee that it has not at any stage been claimed by its opponents in these proceedings that it discriminates unfairly on racial grounds; that it gives an advantage to children from families which speak an Oriental language as their mother tongue.  Indeed, it can be said that no objection is made to the principle of introducing an optional Oriental language subject into the syllabus of the CPE.  The complaint is about timing.  It is said that to make the change on less than a year's notice was unfair to those children who had, for one reason or another, not studied an Oriental language from the beginning of their primary schooling.  Thus the allegation is of discrimination, not on grounds of race, or place of origin, or home language, but simply between those children who had studied an Oriental language at school and those who had not.

 

2.The powers of the Minister.

By section 3(1) of the Education Act 1957, overall control of the educational system of Mauritius is vested in the Minister of Education.  Examinations are conducted by the Mauritius Examinations Syndicate, a body established by the Mauritius Examinations Syndicate Act 1984, but the examinations are to be such as may be directed by the Minister: section 4(a).  It was therefore the Minister who directed the amendment to the regulations by which Oriental languages were to count for ranking in the CPE.

 

3.The claim for constitutional redress.

On 8th May 1995 Mr. M.G.C. Pointu, acting on behalf of his ten year old daughter Florie Caroline, who was in Standard 5 at a Catholic school and had not studied an Oriental language, commenced proceedings before the Supreme Court of Mauritius for redress under section 17(1) of the Constitution, which reads as follows:-

"Where any person alleges that any of sections 3 to 16 has been, is being, or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter that is lawfully available, that person may apply to the Supreme Court for redress."

 

4. The plaint alleged contraventions of sections 3 and 16, to which their Lordships will in due course refer.  Mr. Pointu was joined as plaintiff by a number of other parents of children in a similar position, including several who were of Oriental race.  The original defendants were the Minister of Education and Science and the State of Mauritius as defendants.  Later Mr. D. Matadeen, the father of a girl who had been studying Hindi and some other parents who also wanted to uphold the new Regulations, successfully intervened to be joined as additional defendants.

 

4.The constitutional guarantees.

Their Lordships must now refer to the provisions of the Constitution upon which reliance was placed.  Chapter 1 consists of the first two sections.  Section 1 declares that "Mauritius shall be a sovereign democratic State".  Section 2 provides that the Constitution is to be the supreme law of Mauritius.  Chapter II, consisting of sections 3 to 18, is headed "Protection of Fundamental Rights and Freedoms of the Individual".  This Chapter is evidently based upon the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the European Convention") but there are also significant differences in language and structure and it cannot be assumed that particular sections were necessarily intended to have the same meanings.

 

5. As their Lordships have indicated, the plaint alleges that the CPE Regulations contravene sections 3 and 16, of which the relevant provisions read as follows:-

"3. It is hereby recognised and declared that in Mauritius there have existed and shall continue to exist without discrimination by reason of race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms -

(a)the right of the individual to life, liberty, security of the person and the protection of the law;

(b)freedom of conscience, of expression, of assembly and association and freedom to establish schools; and

(c)the right of the individual to protection for the privacy of his home and other property and from deprivation of property without compensation,

 

and the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of those rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.

 

16.(1) ... no law shall make any provision that is discriminatory either of itself or in its effect.

 

  (2) ... no person shall be treated in a discriminatory manner by any person acting in the performance of any public function conferred by any law or otherwise in the performance of the functions of any public office or any public authority.

 

  (3) In this section, `discriminatory' means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, caste, place of origin, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages that are not accorded to persons of another such description."

 

5.The judgment of the Supreme Court.

The plaintiffs' case as originally pleaded was that the new Regulations would contravene sections 3 and 16.  It soon became apparent, however, that reliance upon section 16 (which has no parallel in the European Convention) posed formidable problems.  Subsection (2) prohibits "discriminatory" treatment by persons performing public functions.  This would cover functions such as that of the Minister exercising his powers under the Education Act 1957.  There is therefore no difficulty about applying section 16 to the making of the Regulations.  But "discriminatory" is defined in section 16(3) to mean the affording of different treatment to different persons "attributable wholly or mainly to their respective descriptions by race, caste, place of origin, political opinions, colour, creed or sex".  The discrimination upon which the plaintiffs relied did not fall within any of these descriptions.  The Supreme Court said that the weight of authority was against any application of section  16 outside the forms of discrimination mentioned in subsection (3), citing Union of Campement Sites Owners and Lessees v. Government of Mauritius [1984] 100 and the majority judgment in Peerbocus v. R. [1991] M.R. 91.  But in view of their opinion on section 3, the court did not find it necessary to reach a decision on whether section 16 had been contravened.

 

6. The Supreme Court found the Regulations unconstitutional as contravening a "combined reading of sections 1 and 3".  Section 1 itself is not justiciable by application for redress under section 17(1), which refers only to contraventions of sections 3 to 16.  Strictly speaking, therefore, the contravention must have been of section 3, interpreted in the light of section 1.  Their Lordships have no doubt that the democratic nature of the sovereign state of Mauritius is an important matter to be taken into account in the construction of any part of the Constitution and in particular its guarantees of fundamental rights and freedoms.

 

7. The basis of the Court's decision was its interpretation of section 3 as containing a general justiciable principle of equality; a constitutional requirement, enforceable by the courts, that the law, or administrative action under the law, should treat everyone equally unless there was a sufficient objective justification for not doing so.  A similar principle has found by the courts to exist in the constitutions of certain other countries, notably the United States of America (where it has been derived from the "equal treatment" clause of the 14th Amendment and the "due process" clause of the 5th Amendment) and the Republic of India (Article 14, which gives the right to "equality before the law" and "the equal protection of the laws").  The Supreme Court referred to cases in both these jurisdictions and held that the same principle could be deduced from sections 1 and 3 of the Constitution of Mauritius.  It was therefore unconstitutional, in the absence of objective justification, for the Regulations to discriminate between those children who had been studying Oriental languages and those who had not.  The Court was of opinion that no objective justification could be found for making the change at such short notice.

 

6.Constitutional redress and judicial review.

It is important to notice that the Supreme Court did not purport to hold the Regulations invalid on the ground that they were "unreasonable" or "irrational" in the sense in which those  words  are  customarily  used in administrative law and therefore an abuse of the statutory powers conferred upon the Minister by the Education Act 1957.  As it happens, counsel for the Minister informed their Lordships that the Minister now took the view that the Regulations had indeed been unreasonable.  He conceded that the period of notice was too short, although he did not accept that it need have been as long as the six years for which the plaintiffs had contended.  It follows that it would have been open to the applicants to have the new Regulations quashed in proceedings for judicial review.  But this was not the relief which they sought.  They were applying for redress for infringement of their fundamental rights and freedoms under section 17(1) and it was on this basis that the Supreme Court made its order.  It logically follows that the Supreme Court would have made the same order if the amendment had been made by a special Act of Parliament.  It is for this reason that the concession made by counsel for the Minister and his statement to the Board that the Minister, even if successful in the appeal, does not intend to implement the Regulations without further notice, does not mean that this case becomes merely a question of whether the appropriate procedure was used.  The reasoning of the Supreme Court, and in particular its formulation of the general justiciable principle of equality, raises a question of fundamental importance about the relationship between the courts and the legislature of Mauritius.

 

7.Constitutional interpretation.

Their Lordships consider that this fundamental question is whether section 3, properly construed in the light of the principle of democracy stated in section 1 and all other material considerations, expresses a general justiciable principle of equality.  It is perhaps worth emphasising that the question is one of construction of the language of the section.  It has often been said, in passages in previous opinions of the Board too familiar to need citation, that constitutions are not construed like commercial documents.  This is because every utterance must be construed in its proper context, taking into account the historical background and the purpose for which the utterance was made.  The context and purpose of a commercial contract is very different from that of a constitution.  The background of a constitution is an attempt, at a particular moment in history, to lay down an enduring scheme of government in accordance with certain moral and political values.  Interpretation   must   take  these  purposes  into  account. Furthermore, the concepts used in a constitution are often very different from those used in commercial documents.  They may expressly state moral and political principles to which the judges are required to give effect in accordance with their own conscientiously held views of what such principles entail.  It is however a mistake to suppose that these considerations release judges from the task of interpreting the statutory language and enable them to give free rein to whatever they consider should have been the moral and political views of the framers of the constitution.  What the interpretation of commercial documents and constitutions have in common is that in each case the court is concerned with the meaning of the language which has been used.  As Kentridge A.J. said in giving the judgment of the South African Constitutional Court in State v. Zuma [1995] (4) B.C.L.R. 401, 412:-

"If the language used by the lawgiver is ignored in favour of a general resort to `values' the result is not interpretation but divination."

 

8.The construction of section 3.

The Supreme Court do not appear to have paid much attention to the language of section 3.  Apart from a passing reference to its guarantee of the right of the individual to "the protection of the law", none of its provisions were relied upon as expressions of a general principle of equality.  The main thrust of the judgment was an assertion that such a principle was essential to a democracy and therefore to be implied on the basis of section 1.  The Court said that "the notion of equality ... is contained ... in the concept of democracy" and "the principle of equality ... permeates the whole Constitution".   There was also some reliance upon the Declaration of the Rights of Man adopted in 1793, when the island was a French colony, and the International Covenant on Civil and Political Rights, to which Mauritius is a party.  It therefore seems to their Lordships appropriate, before turning to the language of section 3, to consider the main argument first.  Is it of the essence of democracy that there should be a general justiciable principle of equality?  The extent to which this proposition is true will establish the background against which section 3 must be interpreted.

 

9.Democracy and equality.

As a formulation of the principle of equality, the Court cited Rault J. in Police v. Rose [1976] M.R. 79, 81:-

"Equality before the law requires that persons should be uniformly treated, unless there is some valid reason to treat them differently."

 

8. Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution.  Indeed, their Lordships would go further and say that treating like cases alike and unlike cases differently is a general axiom of rational behaviour.  It is, for example, frequently invoked by the courts in proceedings for judicial review as a ground for holding some administrative act to have been irrational: see Professor Jeffrey Jowell Q.C., Is Equality a Constitutional Principle? [1994] Current Legal Problems 1, 12-14 and De Smith, Woolf and Jowell, Judicial Review of Administrative Action, paras. 13-036 to 13-045.

 

9. But the very banality of the principle must suggest a doubt as to whether merely to state it can provide an answer to the kind of problem which arises in this case.  Of course persons should be uniformly treated, unless there is some valid reason to treat them differently.  But what counts as a valid reason for treating them differently?  And, perhaps more important, who is to decide whether the reason is valid or not?  Must it always be the courts?  The reasons for not treating people uniformly often involve, as they do in this case, questions of social policy on which views may differ.  These are questions which the elected representatives of the people have some claim to decide for themselves.  The fact that equality of treatment is a general principle of rational behaviour does not entail that it should necessarily be a justiciable principle - that it should always be the judges who have the last word on whether the principle has been observed.  In this, as in other areas of constitutional law, sonorous judicial statements of uncontroversial principle often conceal the real problem, which is to mark out the boundary between the powers of the judiciary, the legislature and the executive in deciding how that principle is to be applied.

 

10. A self-confident democracy may feel that it can give the last word, even in respect of the most fundamental rights, to the popularly elected organs of its constitution.  The United Kingdom has traditionally done so; perhaps not always to universal satisfaction, but certainly without forfeiting its title to  be a democracy.  A generous power of judicial review of legislative action is not therefore of the essence of a democracy.  Different societies may reach different solutions.

 

11. The United Kingdom theory of the sovereignty of Parliament is however an extreme case.  The difficulty about it, as experience in many countries has shown, is that certain fundamental rights need to be protected against being overridden by the majority.  No one has yet thought of a better form of protection than by entrenching them in a written constitution enforced by independent judges.  Even the United Kingdom is to adopt a modified form of judicial review of statutes by its incorporation of the European Convention.  Judge Learned Hand, who was in principle opposed to the power of the Supreme Court to annul Acts of Congress, acknowledged that in this matter his opponents "have the better argument so far as concerns Free Speech":-

"The most important issues here arise where a majority of the voters are hostile, often bitterly hostile, to the dissidents against whom the statute is directed; and legislatures are more likely than courts to repress what ought to be free."

 

(The Bill of Rights (The Oliver Wendell Holmes Lectures 1958), at p. 69).  In many countries, therefore, the constitution deliberately places certain rights out of reach of being overridden even by majority decision and confers upon the courts the power to decide whether the protected right has been infringed.  The Constitution of Mauritius clearly follows this pattern.

 

12. It by no means follows, however, that the rights which are constitutionally protected and subject to judicial review include a general justiciable principle of equality.  The arguments are not all one way.  In the United States, the interpretation of the equal treatment clause of the 14th Amendment as a proposition "majestic in its sweep" (per Powell J. in Regents of the University of California v. Bakke 438 U.S. 265, 284) has had its problems.  The need for the courts to avoid usurping the decision-making powers of the democratically-elected organs of State has led to an elaborate jurisprudence which distinguishes between various grounds of discrimination, treating some (such as race) as "suspect" and requiring a high (some would say unsurmountable) degree of justification; others (such as age) as subject to a much more relaxed "rational basis" test (see Massachusetts Board of Retirement  v.  Murgia 427 U.S. 307 (1976)) and still others as

subject to an "intermediate" form of scrutiny.  The allocation of different forms of "classification" to the three categories is worked out on a case by case basis which is highly productive of litigation.

 

13. Their Lordships think that the framers of a democratic constitution could reasonably take the view that they should entrench the protection of the individual against discrimination only on a limited number of grounds and leave the decision as to whether legitimate justification exists for other forms of discrimination or classification to majority decision in Parliament.  There is no reason why a democratic constitution should not express a compromise which imitates neither the unlimited sovereignty of the United Kingdom Parliament nor the broad powers of judicial review of the Supreme Court of the United States.  Instead of leaving it to the courts to categorise forms of discrimination on a case by case basis and to concede varying degrees of autonomy to Parliament only as a matter of comity to the legislative branch of government, the constitution itself may identify those forms of discrimination which need to be protected by judicial review against being overridden by majority decision. 

 

 The problem was analysed by the Australian Constitutional Commission in its Final Report in 1988.  The Commission concluded in paragraph 9.481:-

"... notwithstanding the views expressed in some of the submissions, we believe that, having regard to the relevant experience in the United States and Canada, it is preferable to enumerate in the Constitution an exhaustive list of grounds on which discrimination is prohibited.  This would avoid the kind of problems the courts have faced in Canada in recent years when trying to establish the relationship between the enumerated and the unenumerated grounds of non-discrimination.  It would also avoid the establishment of what many critics of the United States equal protection clause see as an arbitrary hierarchy of rights and interests.  Another important consideration is that the recommendation we propose would substantially curtail the volume of litigation which statements of these rights tend to generate."

 

14. Section 19 of the New Zealand Bill of Rights Act 1990 conferred  the  right  to  freedom from discrimination on a

limited number of enumerated grounds and although the grounds were substantially extended by the Human Rights Act 1993, it remains a list of specific grounds and not a general principle of equality such as the 14th Amendment.

 

In The Union of Campement Sites Owners and Lessees v. The Government of Mauritius [1984] M.R. 100, 107 Lallah, Ag. C.J. said:-

"... Constitutions are formulated in different terms and must each be read within its own particular context and framework.  The American and Indian Constitutions were drafted in a different age and have tended, particularly with regard to fundamental freedoms of the individual and to a greater extent than more modern Constitutions, to make broad and wide-ranging formulations which have necessitated a number of amendments and specific derogations or else have required recourse to implied concepts of eminent domain or police powers in order to keep literal interpretations of individual rights within manageable limits.  We should be very cautious, therefore, in importing wholesale into the structure and framework of our Constitution a complete article of the kind that Article 14 of the Indian Constitution or the 14th Amendment of the American Constitution are."

 

15. Their Lordships consider that these observations, coming as they do from a judge with great experience in the international jurisprudence of human rights, should be borne carefully in mind.  It is open to a democratic constitution to entrench a general principle of equality, as in the United States and India; to "entrench" protection against discrimination on specific grounds, as in New Zealand, or to entrench nothing, as in the United Kingdom.  In order to discover into which of these categories the Constitution of Mauritius falls, it seems to their Lordships that there is no alternative to reading the Constitution.  It is therefore to the language of section 3 that their Lordships next turn.

 

10.The language of section 3.

Section 3, which loosely corresponds to Article 14 of the European Convention, declares that certain human rights and fundamental freedoms listed in paragraphs (a), (b) and (c) "have existed and shall continue to exist" without discrimination  "by  reason of race, place of origin, political opinions, colour, creed or sex".  It goes on to provide that "the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms".  It thus enacts certain specified human rights and fundamental freedoms and provides not only that they shall be accorded to the people of Mauritius but that they shall be accorded without discrimination on any of the specified grounds.  It follows therefore that discrimination as to a matter falling within the ambit of one of the specified rights and freedoms will violate section 3, even though the substantive right has not itself been infringed.  This is the interpretation which has been given both to section 3 by the courts of Mauritius (see Jaulim v. Director of Public Prosecutions [1976] M.R. 96, 99) and to Article 14 by the European Court of Human Rights (see Belgian Linguistic (No. 2) (1968) 1 EHRR 252 at p. 283 and Abdulaziz v. U.K. (1985) 7 EHRR 471).  In the present case, however, two points are immediately apparent:-

 

(1)  Although the enumerated rights and freedoms include "freedom to establish schools", which no doubt implies that the State cannot forbid attendance at a duly established school, they do not include a positive right to education or a right on the part of pupils to attend any particular school or type of school.  In this respect the Constitution differs from Article 2 of the First Protocol to the European Convention ("No person shall be denied the right to education") which was applied by the European Court of Human Rights in Belgian Linguistic (No. 2) (1968) 1 EHRR 252.  The position in Mauritius is similar to that in the United States: see San Antonio School District v. Rodriguez 411 U.S. 1, 33 (1973) in which Powell J. said:-

"Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected."

 

(2)  The grounds of discrimination prohibited by section 3, like those in section 16, do not include the ground relied upon in this case.

 

16. At first sight, therefore, it is difficult to see how section 3 can have any application to this case.  It does not involve any of the enumerated rights or any of the enumerated forms of discrimination.  The only enumerated right which the Supreme Court mentioned as significant was the right of the individual, mentioned in paragraph (a), to "the protection of the law".  From the way in which even this reference was very much in passing, their Lordships think that without the support of section 1, the Supreme Court would not have regarded this right as capable of being construed as a general justiciable principle of equality.  Their Lordships consider that, in the context in which the words appear, they cannot for a number of reasons be so construed.  The reasons are as follows:-

 

(1)  The words are "the protection of the law" and not "the equal protection of the law".  Section 3 in fact contains no reference at all to equality. In this respect it is to be distinguished from the 14th Amendment to the Constitution of the United States and Article 14 of the Indian Constitution.

 

(2)  The words appear in a context of carefully enumerated grounds of unlawful discrimination, both in section 3 itself and in section 16.  The language may be contrasted with the European Convention, which uses more general concepts in Article 14 and has no article corresponding to section 16.  If the words "protection of the law" in section 3 created a general principle of equality, that principle would swallow up all the enumerated grounds and much else besides.

 

(3)  The protection of the law is one of the rights which are to be accorded without discrimination on the enumerated grounds.  Thus to construe the words as creating a general principle of equality would lead to the absurdity of a general right to protection against discrimination which had itself to be accorded without discrimination, but only on the enumerated grounds.

 

(4)  The construction given to the words "the protection of the law" in section 3 must have regard to section 10, which is headed "Provisions to secure protection of law" and is plainly intended, as section 3 says, to "have effect for the purpose of affording protection" to that right.  Section 10 is concerned with procedural rights such as that of an accused person to a fair trial and a civil litigant to an impartial tribunal.  (Compare Article 6 of the European Convention). It contains nothing to suggest that the Constitution uses the phrase "the protection of the law" to mean a principle of substantive equality.  Their Lordships do not suggest that section  10 is necessarily exhaustive of the rights conferred by those words in section 3(a).  That would be contrary to the construction given to section 3 by the Privy Council in Société United Docks v. Government of Mauritius [1985] AC 585, where Lord Templeman, giving the advice of the Board, said that section 3 was not a mere preamble but a freestanding enacting section which had to be given effect in accordance with its terms.  But their Lordships consider that section 10 must throw light upon the question of what kind of rights are encompassed in the concept of "the protection of the law".  It would be surprising if those words in section 3 had been used to mean rights of a radically different kind from those detailed in section 10.

 

11.La Declaration des Droits et des Devoirs de l'Homme et du Citoyen.

Their Lordships next consider the effect, on the construction of section 3, of the Declaration des Droits et des Devoirs de l'Homme et du Citoyen, which was adopted by the Assemblée Coloniale of the Isle de France on the 14th Thermidor of the Year II (1st August 1794), no doubt unaware of the overthrow of the Robespierre government which had occurred five days earlier in Paris.  Their Lordships consider that such matters are legitimate material for the construction of section 3, which declares that the rights it contains "have existed and shall continue to exist".  The rights enacted by the Declaration, together with the rest of the French law then in force in the island, are said to have been preserved by the capitulations under which Mauritius was ceded to the United Kingdom in 1810.  There is some academic dispute about the effect of capitulations in international law (see J.W. Bridge, Judicial Review in Mauritius and the Continuing Influence of English Law (1997) 46 I.C.L.Q. 787, n. 3) but the preservation of the French law of the island by the capitulations has been accepted by the Privy Council since at least 1858 (see Lang & Co. v. Reid & Co. (1858) 12 Moo. P.C.C. 72, 88) and their Lordships consider that it is now beyond dispute.

 

 The 1793 Declaration included the following articles:-

"3.  Tous les hommes sont équaux par la nature et devant la loi.

 

4.  La loi est l'expression libre et solennelle de la volonté genérale.  Elle est la mêmê pour tous, soit qu'elle protege, soit qu'elle punisse."

 

17. Although the Declaration of the Rights of Man is a seminal document in the history of human rights, it is however a statement of principles or, perhaps more accurately, aspirations.  It does not in itself mean that compliance with such principles by the legislature or executive was in every case to be justiciable in the courts.  The fact that it was adopted in Mauritius tells one nothing about which organ of government was intended to decide how its principles should be applied.  The contemporary background suggests very strongly that the Assemblée Coloniale did not have any form of judicial review in mind.  The adoption of the Declaration took place at a time when France was ruled by the National Convention and its famous Committees and representatives en mission.  Elected by universal suffrage, the Convention was considered the expression of the volonté genérale to which Article 4 referred.  The notion that its decrees should be subject to review by a court of independent judges would have been greeted with incredulity.  As the historian Georges Lefebvre said, even of the Assembly under the Constitutional Monarchy of 1791, (The French Revolution, Routledge & Kegan Paul, 1965) at p. 153:-

"Only the Assembly had regulatory powers - that is, the power to interpret its decrees and issue instructions about obeying them ... [C]ourts were to obey the laws without debate, and there was no judicial body, as in the United States, to decide the constitutionality of a law. Like the purely representative system, subordination of the judiciary was to remain an unchanging principle of French public law."

 

18. Their Lordships therefore do not think that the adoption by Mauritius of the concept of égalité at the time of the French Revolution assists in answering the question raised by this case, which is, as their Lordships have said, not whether such a principle exists in Mauritius - it obviously does - but the nature of the constitutional mechanism by which it should be applied.  The present Constitution is, by section 2, the supreme law of Mauritius and in their Lordships' opinion it would be wrong to curtail the powers of decision which it confers upon Parliament by reference to general statements enacted against an entirely different constitutional background.

 

 

 

 

12.The International Covenant on Civil and Political Rights.

Since 1973 Mauritius has been a signatory to the International Covenant on Civil and Political Rights.  It is a well-recognised canon of construction that domestic legislation, including the Constitution, should if possible be construed so as to conform to such international instruments.  Again, their Lordships accept that such international conventions are a proper part of the background against which section 3 must be construed.  The respondents argue that the Covenant requires the application of a general principle of equality and that the Constitution should therefore be read as containing one.

 

19. Article 2.1 of the Covenant contains an undertaking by each State Party:-

"... to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

 

20. This Article requires that the rights recognised in the Covenant should be accorded "without distinction of any kind", the enumerated grounds of discrimination being merely examples.  But their Lordships would observe, as they did in relation to section 3 of the Constitution, that the right to education, or to attend a school, is not a right recognised in the Covenant any more than in the Constitution.  Article 2.1 is therefore of no assistance.  More relevant is Article 26, which reads as follows:-

"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.  In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

 

21. This general guarantee of non-discrimination must be read with Article 2.2, which reads as follows:-

 

"Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant."

 

22. The language of Article 26, and in particular its use of the phrase "the equal protection of the law", makes it open to interpretation as a general principle of equality in the same way as the 14th Amendment.  In Zwaan-de Vries v. The Netherlands (182/84) the Human Rights Committee established under Article 28 to adjudicate upon compliance with the Covenant decided that Article 26 was a guarantee of substantive equality and was not confined to mere formal equality before the law: see the article International Human Rights Norms by Lallah J., who had been a member of the Committee, in (1988) Mauritius Law Review 177, 207.  The Committee said at paragraph 13:-

"The right to equality before the law and to equal protection of the law without any discrimination does not make all differences of treatment discriminatory.  A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26."

 

23. So it is submitted that the Constitution of Mauritius should be interpreted to contain a similar principle and that the courts should invalidate any form of discrimination unless it is based upon reasonable and objective criteria.

 

24. Their Lordships consider that the fallacy in this argument is the assumption that a State Party can comply with the Covenant only by enacting its principles as part of its constitutional law and conferring upon its courts the power to invalidate legislation which it considers to infringe those principles.  In other words, it is wrong to assume that compliance with the principles of Article 2.2 must be justiciable in domestic law.  On the contrary, as Article 2.2 makes clear, the Covenant contemplates a diversity of constitutional arrangements, including both legislative and "other measures" by which effect may be given to the rights recognised in the Covenant, including the right to the equal protection of the law.  It is the legal and political system as a  whole  and  not  merely the human rights entrenched in the Constitution which must comply with the covenant.  In conformity with this principle, the Human Rights Committee has held that a State Party is not obliged to incorporate the provisions of the Covenant into its domestic law (see McGoldrick, The Human Rights Committee, p. 271) and the European Court of Human Rights has taken the same view of incorporation of the European Convention (see Ireland v. U.K. (1979-80) 2 E.H.R.R. 25).  Furthermore, interpretation of the Covenant allows a "margin of appreciation" to the State Party in deciding what amounts to the equal protection of the law and there is no reason why that margin of appreciation should be engrossed by the judicial branch of government rather than the legislature or executive.

 

25. On the facts of the present case, in which the decision to amend the CPE syllabus was made by the Minister in the purported exercise of statutory powers, their Lordships are of opinion that the ordinary administrative law of Mauritius and in particular the power to quash the Minister's decision as unreasonable, under the principles in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223, would have been entirely adequate to secure compliance with the equal treatment provisions of Article 26.  There was no need to invoke any other constitutional protection.  It is true that judicial review would have been of no avail if an identical measure, giving similarly short notice, had been passed by a special Act of Parliament.  Subject to the margin of appreciation, such an Act might therefore have been regarded as being in breach of Article 26.  But this hypothetical possibility is not enough to require that Acts of Parliament should be subject to wide-ranging judicial review: the matter would no doubt have been debated during the passage of the Bill and their Lordships think that it would be wrong to assume that Parliament would have acted irrationally merely because the Minister now accepts that his predecessor did so.  Democracy in Mauritius, including respect for human rights and principles of rational behaviour, is sufficiently robust to make it unnecessary to put Parliament in such judicial leading strings.  Thus the need for compliance with the Covenant is not in their Lordships' opinion a reason for implying a general justiciable principle of equality into the Constitution.

 

13.Constitutional construction in Mauritius.

Thus far their Lordships have examined the case without any very close examination of previous authority on the construction of the constitution of Mauritius.  It is therefore appropriate to conclude by considering whether there is any trend in earlier cases which is opposed to the view on the meaning of section 3 to which their Lordships have come.

 

In Police v. Rose [1976] M.R. 79 the accused was tried before the District Court of Rodrigues for arson under an Ordinance which conferred upon that court a jurisdiction which in Mauritius was possessed only by the Intermediate Court or the Court of Assize.  He claimed that the Ordinance was unconstitutional because, in subjecting the inhabitants of Rodrigues to trial by an inferior tribunal, it discriminated against them on the ground of their place of origin.  It will be noticed that the complaint was of discrimination on one of the grounds enumerated in section 16 and that accordingly no question of a general principle of equality arose. Rault J. said that even if the law in this respect treated Rodriguans differently from Mauritians, it did not follow that it constituted unlawful discrimination.  The concept of "discrimination" in section 16 involved not only difference of treatment but the absence of a valid reason for doing so.  In the case of the Ordinance, the exigencies of the administration of justice on the island made it reasonable to provide that one magistrate should be able to try offences which in more populous areas would be tried by two.  Their Lordships are in full agreement with the approach of the learned judge.  But the case provides no support for a general principle of equality.  It decides that even in the case of one of the enumerated grounds, difference of treatment is not necessarily discrimination.

 

26. Their Lordships have already made reference to the previous decision of the Board in Société United Docks v. Government of Mauritius [1985] AC 585.  It involved an application for constitutional redress by companies engaged in the business of handling and storing sugar.  They complained that an Act of Parliament which conferred upon a statutory corporation the monopoly of these activities in respect of all sugar manufactured in Mauritius, would destroy their businesses and amount to a "deprivation of property without compensation", contrary to the fundamental right contained in section 3(c).  The Government argued that section  8,  which  deals  with the compulsory acquisition or taking possession of property, was exhaustive of the rights conferred by the words "deprivation of property" in section 3.  As the Government had not acquired or taken possession of the businesses or property of the companies, they were not entitled to constitutional redress.  The Board held that section 8 was not exhaustive and that although the companies could not found upon section 8, the Act had destroyed their businesses and thereby deprived them of their property within the meaning of section 3.

 

27. Their Lordships do not regard this case as deciding more than that the words of section 3 should be given their natural and ordinary meaning and that they should not be artificially restricted by reference to subsequent sections, even though the latter are said to have effect for the purpose of affording protection to the rights enumerated in section 3.  The Board said in its opinion that "a Constitution concerned to protect the fundamental rights and freedoms of the individual should not be narrowly construed in a manner which produces anomalies and inexplicable inconsistencies".  Their Lordships would not wish in any way to detract from this statement of principle but it cannot mean that either section 3 or the later sections can be construed as creating rights which they do not contain.

 

28. This was the view adopted by the majority of the court in Peerbocus v. R. [1991] M.R. 90, which concerned the question of whether an accused who had been tried by an all-male jury could complain that the selection of the jury had discriminated on grounds of sex.  There had been no discrimination against him, because at that time all accused, male or female, were tried by all-male juries.  He therefore had no complaint under section 3.  And at that time section 16, unlike section 3, did not include sex as one of the grounds upon which discrimination was unlawful.  The majority of the court therefore held that there had been no contravention of the constitution.  Ahnee J. dissented, saying that he understood the judgment in Société United Docks v. Government of Mauritius [1985] 1 A.C. 585 to mean that:-

"... notwithstanding the apparently restricted definition of the word `discriminatory' in section 16(3), the section itself must be construed in the light of the broader and more generous provisions of section 3 ..."

 

29. On this basis, the learned judge was willing to construe section 16 as prohibiting discrimination on grounds of sex, notwithstanding that the section (as it then stood) made no reference to sex and that, as Lord Goff of Chieveley subsequently observed on behalf of the Board in Poongavanam v. The Queen (J.C., 6th April 1992), the contrast with the express reference to sex in section 3 made it evident that the omission in section 16 was deliberate.  Their Lordships consider that such a process cannot be described as construction, however broad or generous.  Their Lordships mention it only because it was cited by the Supreme Court in this case with the suggestion that the view it expressed on the construction of section 16 could still be regarded as tenable.

 

14.Conclusion.

Their Lordships' conclusion is that sections 3 and 16, even if construed with section 1, do not apply to inequalities of treatment on grounds falling outside those enumerated.  Such inequalities are not subject to constitutional review.  The question of whether they are justifiable is one which the Constitution has entrusted to Parliament or, subject to the usual principles of judicial review, to the Minister or other public body upon whom Parliament has conferred decision-making authority.  Their Lordships will therefore allow the appeal and dismiss the application for constitutional redress.  The appellants are entitled to their costs before their Lordships' Board from the respondents.  The co-respondents must pay their own costs.  The costs order in the Supreme Court will stand.

 

© CROWN COPYRIGHT as at the date of judgment.