The State v. Khoyratty (Mauritius)  UKPC 13 (22 March 2006)
Privy Council Appeal No 59 of 2004
The State Appellant
Abdool Rachid Khoyratty Respondent
THE SUPREME COURT OF MAURITIUS
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 22nd March 2006
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Present at the hearing:-
Lord Rodger of Earlsferry
Sir Swinton Thomas
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[Delivered by Lord Steyn]
Bail in Mauritius.
He stated [para 1]:
"In Mauritius, as else where, the courts are routinely called upon to consider whether an unconvicted suspect or defendant should be released on bail, subject to conditions, pending his trial. Such decisions very often raise questions of importance both to the individual suspect or defendant and to the community as a whole. The interest of the individual is of course to remain at liberty, unless or until he is convicted of a crime sufficiently serious to justify depriving him of his liberty. Any loss of liberty before that time, particularly if he is acquitted or never tried, will inevitably prejudice him and, in many cases, his livelihood and family. But the community has a countervailing interest, in seeking to ensure that the course of justice is not thwarted by the flight of the suspect or defendant or perverted by his interference with witnesses or evidence, and that he does not take advantage of the inevitable delay before trial to commit further offences."
Historically, in Mauritius, granting or withholding of bail was treated as a classic judicial power and duty. This is demonstrated by the functions and processes of the courts of law.
An attempt to curtail bail.
Restricting bail by constitutional amendment.
"(3) Any person who is arrested or detained
(a) for the purpose of bringing him before a court in execution of the order of a court;
(b) upon reasonable suspicion of his having committed, or being about to commit a criminal offence; or
(c) upon reasonable suspicion of his being likely to commit breaches of the peace,
and who is not released, shall be afforded reasonable facilities to consult a legal representative of his own choice and shall be brought without undue delay before a court; and if any person arrested or detained as mentioned in paragraph (b) is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including, in particular, such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial; and if any person arrested or detained as mentioned in paragraph (c) is not brought before a court within a reasonable time in order that the court may decide whether to order him to give security for his good behaviour, then, without prejudice to any further proceedings that may be brought against him, he shall be released unconditionally."
The new section 5(3A)(a) and (b) as amended by section 2 of the Constitution of Mauritius (Amendment) Act 2002 (Act No 4 of 2002) reads:
"(3A)(a) Notwithstanding subsection (3), where a person is arrested or detained for an offence related to terrorism or a drug offence, he shall not, in relation to such offences related to terrorism or drug offences as may be prescribed by an Act of Parliament, be admitted to bail until the final determination of the proceedings brought against him, where-
(i) he has already been convicted of an offence related to terrorism or a drug offence; or
(ii) he is arrested or detained for an offence relating to terrorism or a drug offence during the period that he has been released on bail after he has been charged with having committed an offence relating to terrorism or a drug offence.
(b) A Bill for an Act of Parliament to prescribe the offences relating to terrorism or drug offences under paragraph (a) or to amend or repeal such an Act shall not be passed by the Assembly unless it is supported at the final voting in the Assembly by the votes of not less than three quarters of all the members of the Assembly."
"(1) Notwithstanding any other enactment, where a person is arrested or detained for an offence under sections 30, 33, 35, 36 or 39 of this Act, he shall not be admitted to bail until the final determination of the proceedings brought against him where-
(a) he has already been convicted of any drug offence; or
(b) he is arrested or detained whilst on bail in relation to a drug offence.
(2) For the purposes of this section, 'drug offences' includes an offence under the Dangerous Drugs Act."
The offences incorporated by reference are as follows: section 30 (drug dealing offences), section 33 (offences regarding production), section 35 (offering or selling for personal consumption), section 36 (facilitating or permitting drug offences), section 38 (inciting to drugs offences or unlawful use) and section 39 (money laundering).
The attempted enforcement of the new regime.
"(a) whether by amending section 5 of the Constitution through the addition of the new sub-section 5(3A) Parliament in its constituent capacity has not altered the fundamental tenet of the Constitution; the Separation of Powers, to wit: the check and balance aspect?
(b) by what majority can Parliament in its constituent capacity alter the separation of powers; the argument being that if a Constitutional (Amendment) Act is not supported at the final voting by the prescribed majority of votes, then it cannot be read as one with the Constitution; the alteration it purports to make cannot become part of the Supreme Law and that Act is void to all intents and purposes;
(c) is it constitutional to allow the Executive to detain a citizen indefinitely on a provisional charge of 'drug dealing' for instance without the judiciary being in a position to control the Executive and afford protection to the citizen as regards his personal liberty and his fundamental human right of being protected from inhuman or degrading or other such treatment as prohibited by section 7 of the Constitution?"
The principal questions posed were whether the new regime was consistent with section 1 and section 7 of the Constitution.
"Mauritius shall be a sovereign democratic State which shall be known as the Republic of Mauritius."
Since 1991 section 1 has been deeply entrenched in the sense that it could only be amended in accordance with section 47(3) of the Constitution (see para 16 below). Section 7(1) provides:
"No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment."
Section 47(2) provides that section 7 may not be altered by less than three quarters of the members of the Assembly.
"In the particular context of our Constitution, more specially in the light of our notion of democracy as is contained in section 1, we are of the opinion that section 5(3A), although it is compliant with section 47(2), [having admittedly been voted with three-quarters majority] is in breach of section 1 since the imperative prohibition imposed on the judiciary to refuse bail in the circumstances outlined therein amounts to interference by the legislature into functions which are intrinsically within the domain of the judiciary. In Dlamini v The State  2 LRC 239, at para 74, the Constitutional Court very aptly observed:
'what is of importance is that the grant or refusal of bail is under judicial control, and judicial officers have the ultimate decision as to whether or not, in the circumstances of a particular case, bail should be granted.'
There is also an added reason why section 5(3A) in relation to its provisions dealing with drug offences should be struck down. This is in relation to section 7 of the Constitution which, as we have seen, provides for a fundamental human right to be protected from inhuman or degrading or other such treatment…
Again the exercise of granting bail is a judicial one which is duly recognized by section 5(3) of the Constitution. It is a judicial act in the same way as passing sentence and must be left to the judiciary to adjudicate when and in what circumstances it must be granted or refused. If there is any need to recomfort the legislature, we may aptly state that the higher judiciary in Mauritius has the necessary mechanism to check any unreasonable decision of any errant Magistrate when bail is either refused or granted where it should not have been. . .
Proportionality is therefore relevant equally to the issue of refusal to grant bail as well as that of sentencing."
The court made the following order:
"We declare that section 32 of the DDA and section 5(3A) of the Constitution, insofar as regards drug offences, are void since they infringe sections 1 and 7 of the Constitution.
Our answers to the questions posed are as follows:
(b) the majority set out in section 47(3) of the Constitution
The State now challenges the decision of the Supreme Court.
The State's argument on section 1.
"The structure of the Constitution of Mauritius 1968 is important. Chapter I provides that Mauritius shall be a sovereign democratic state: section 1. Mauritius is a parliamentary democracy on the Westminster model: Hinds v The Queen  AC 195, 212B-H; Duport Steels Ltd v Sirs  1 WLR 142, 157. The Constitution is the supreme law of Mauritius: any law inconsistent with the Constitution is invalid: section 2. Chapter II spells out various provisions for the protection of fundamental rights and freedoms of the individual. Sections 5 and 12 to which their Lordships have referred are part of this chapter. Chapter V deals with Parliament. Subject to the provisions of the Constitution, Parliament may make laws for the peace, order and good government of Mauritius: section 45(1). Parliament may only amend the Constitution in accordance with the manner and form prescribed: section 47. Subject to the Constitution, the sole legislative power vests in Parliament. Having dealt with the special position of the Governor-General in Chapter IV, the Constitution makes general provision for the powers of the executive in Chapter VI. This chapter provides for the exercise of executive authority. Under the Constitution Chapter VI is the exclusive foundation of executive authority. Chapter VII deals with the third department of the government – the judicature. The Constitution entrusts the Supreme Court with unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law other than a disciplinary law: section 76. It provides the Supreme Court with a supervisory jurisdiction over all inferior courts for the purpose of ensuring that justice is duly administered by any interpretation of the Constitution and the enforcement of fundamental rights including the right to the protection of the law: sections 3, 17, 83 and 84. It provides for a power of constitutional and judicial review over all persons and authorities exercising functions under the Constitution: section 119. The independence of the court is protected by provisions relating to the appointment and tenure of the judges: sections 76 to 78. In addition, the court is given appellate jurisdiction from subordinate courts where there is no other mode of appeal: section 82(2). The Courts of Civil and Criminal Appeal are made divisions of the Supreme Court: section 80.
From these provisions the following propositions can be deduced. First, Mauritius is a democratic state constitutionally based on the rule of law. Secondly, subject to its specific provisions, the Constitution entrenches the principle of the separation of powers between the legislature, the executive, and the judiciary. Under the Constitution one branch of government may not trespass upon the province of any other. Thirdly, the Constitution gave to each arm of government such powers as were deemed to be necessary in order to discharge the functions of a legislature, an executive and a judiciary.'
While the judgment in Ahnee does not afford the answer to the question under consideration it is relevant in emphasising (a) that Mauritius is a democratic state based on the rule of law; (b) that the principle of separation of powers is entrenched; and (c) that one branch of government may not trespass on the province of any other in conflict with the principle of separation of power.
The idea of a democracy involves a number of different concepts. The first is that the people must decide who should govern them. Secondly, there is the principle that fundamental rights should be protected by an impartial and independent judiciary. Thirdly, in order to achieve a reconciliation between the inevitable tensions between these ideas, a separation of powers between the legislature, the executive, and the judiciary is necessary.
"Whatever overlap there may be under constitutions on the Westminster model between the exercise of executive and legislative powers, the separation between the exercise of judicial powers on the one hand and legislative and executive powers on the other is total or effectively so. Such separation, based on the rule of law, was recently described by Lord Steyn as 'a characteristic feature of democracies': R (Anderson) v Secretary of State for the Home Department  1 AC 837, 890-891, para 50."
The observation cited from Anderson was expanded in my judgement in that decision. I observed [at para 50]:
"In R v Trade Practices Tribunal, Ex p Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 394 Windeyer J explained the difficulty of defining the judicial function as follows:
'The concept seems to me to defy, perhaps it were better to say transcend, purely abstract conceptual analysis. It inevitably attracts consideration of predominant characteristics and also invites comparison with the historic functions and processes of courts of law.'
Nevertheless it has long been settled in Australia that the power to determine responsibility for a crime, and punishment for its commission, is a function which belongs exclusively to the courts: G F K Santow, 'Mandatory Sentencing: A Matter For The High Court?' (2000) 74 ALJ 298, 300 and footnotes 17 and 18. It has been said that 'the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the executive': Deaton v Attorney General and Revenue Comrs  IR 170, 183: see also In re Tracey; Ex p Ryan (1989) 166 CLR 518, 580; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 27; Nicholas v The Queen (1998) 193 CLR 173, 186-187, per Brennan CJ. The underlying idea, based on the rule of law, is a characteristic feature of democracies."
Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Scott of Foscote and Lord Rodger of Earlsferry expressly agreed with this judgement. It may well be that Lord Hutton and Lord Hobhouse of Woodborough did not take a different view on this point. In any event, it can be treated as settled law in the United Kingdom. The third case on the general approach to be adopted is even more important. In A v Secretary of State for the Home Department  2 AC 68 Lord Bingham gave the leading judgement. He stated at para 42:
". . . It is also of course true . . . that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic."
While not conclusive of the issue presently before the Board, these decisions give important colour to the words of section 1 of the Constitution, viz that Mauritius shall be a democratic state.
"A Bill for an Act of Parliament to alter the provisions of section 1 or 57(2) shall not be passed by the Assembly unless-
"(a) the proposed Bill has before its introduction in the Assembly been submitted, by referendum, to the electorate of Mauritius and has been approved by the votes of not less than three quarters of the electorate;
(b) it is supported at the final voting in the Assembly by the votes of all the members of the Assembly."
These are two of the most fundamental provisions of the Constitution, respectively making provision that Mauritius shall be a democratic state and for quinquennial Parliaments. This is an exceptional degree of entrenchment. By its clear intendment it militates against a right to bail, qualified as it is, being abolished by ordinary legislation or by a constitutional provision which does not comply with the requirement of deep entrenchment of section 1.
"Mr Speaker, Sir, the opportunity has also been taken to make some other amendments to the Constitution. Members of the House will recall that a number of legislative measures have been introduced over the past twelve months in order to consolidate the democratic foundations of our society. Today, we are taking that exercise a little further. . . the present Government also wants to establish firmly the democratic basis of our Constitution by making it practically impossible to amend Section 1 of the Constitution. Let it not therefore be said that this Government does not cherish democratic principles."
In the same debates the Attorney General and Minister of Justice, Mr Alan Ganoo stated [Cols 1487-1488]:
"Mr Speaker, Sir, I will now come to a last point of my intervention. It concerns the first section of the Constitution, Sir. If the prospect of acceding to the status of Republic arouses, as I just said, a feeling of pride and dignity in all of us today. I think the thought of amending section 1 of our Constitution to render this clause practically unamendable should rejoice all of us who are true democrats in this House. On a philosophical level, Sir, and globally, if you look at all the proposed amendments, you will see that the common feature, the thread which ties most of those principal amendments to our Constitution today is the consolidation of the democratic foundation of our country.
. . .
Now, as regards section 1 of our Constitution, Sir, it will mean that to amend that section, it will necessitate a referendum and it will mean that there should be no dissentient voice in the Assembly. I should perhaps congratulate the Prime Minister for that very bold decision, Sir. I think that there are very few countries in the Third World with a written Constitution like ours which have achieved what we are achieving, Sir. We are deciding that to amend the democratic nature of the State, you will need a referendum and you will need the approval of all the Members of the House. I do not know of any other country which has done this!"
If necessary the objective mischief as spelt out in the debates reinforces the fundamental nature of the entrenchment of section 1.
Lord Rodger of Earlsferry
"The State of Mauritius shall be a sovereign democratic State which shall be known as the Republic of Mauritius."
At the same time, by section 9 of the 1991 Act, the Assembly amended section 47(3) of the Constitution by inserting a reference to section 1. Thus amended, section 47(3) now provides that section 1 can be amended only if the proposed Bill has first been approved by three-quarters of the electorate in a referendum and has been supported at the final voting in the Assembly by all the members of the Assembly. The effect is to entrench section 1 very deeply indeed.
"Because of this a great deal can be, and in drafting practice often is, left to necessary implication from the adoption in the new constitution of a governmental structure which makes provision for a legislature, an executive and judicature. It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government. Thus the constitution does not normally contain any express prohibition upon the exercise of legislative powers by the executive or of judicial powers by either the executive or the legislature. …. Nonetheless, it is well established as a rule of construction applicable to constitutional instruments under which this governmental structure is adopted that the absence of express words to that effect does not prevent the legislative, the executive and the judicial powers of the new state being exercisable exclusively by the legislature, by the executive and by the judicature respectively."