Roger France Pardayan De Boucherville v The State

Roger France Pardayan De Boucherville

Appellant

v.

The State

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Templeman

Lord Jauncey of Tullichettle

Lord Slynn of Hadley

Lord Woolf

Lord Lloyd of Berwick

Judgment delivered on the 18th April 1994

by Lord Woolf

______________________________________________________________

(1) Constitutional law - Judiciary's responsibility to maintain the rule of law - Provisions of the Constitution go beyond common law - Right to a fair trial

(2) Criminal law - Evidence - Accomplice has given evidence for the prosecution - Joint trial with the accused - Whether prejudicial to the accused - Concept of abuse of process and power - Courts power to interfere - Duty of the prosecution to ensure the interests of justice and fairness to the defence - Right to cross-examination - Warning to the jury - Substitution of death sentence to life imprisonment

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Cases referred to in judgment

Regina v. Croydon Justices ex parte Dean [1993] Q.B. 769

Regina v. Horseferry Road Court, ex parte Bennett [1994] 1 A.C. 42

Regina v. Lake [1976] 64 Cr.App.R. 172

Regina v. Norkfolk Quarter Sessions ex parte Brunson [1953] 1 Q.B. 503

Legislation referred to in judgment

Constitution of Mauritius, section 10

Other authority referred to in judgment

Archbold, Reissue (1993) 4-175

The following judgment was delivered by the Board:

On 21st February 1986 the appellant was convicted of murder by a jury after a trial presided over by Lallah J. at the Supreme Court of Mauritius and was sentenced to death. He appealed to the Court of Criminal Appeal of Mauritius but that appeal was dismissed on 8th July 1986. On 18th August 1986 the appellant was granted conditional leave to appeal to the Privy Council by the Supreme Court but he was unable to apply for final leave to appeal as he lacked the means to have the record printed. Eventually on 1st May 1990 he was granted special leave to appeal as a poor person by the Privy Council and this resulted in his appeal being heard.

The distinctive factual feature of the appeal, upon which the appellant's principal submissions are based, is that he was jointly charged and tried for murder with a man called Serge Laval Lourdes ("Lourdes") who had given evidence as a witness for the prosecution during the appellant's committal proceedings. So far as the researches of counsel have been able to discover, there is no precedent dealing with this situation in the United Kingdom or Commonwealth.

The murder was committed between the evening of 5th January 1984, when the victim was last seen, and 13th January 1984 when his body was discovered buried on a beach. It is likely that it took place sometime before the early hours of 6th January when the victim's blood stained car was seen abandoned some distance from where the body was discovered.

The evidence relied on by the prosecution at the appellant's trial can be summarised as follows:-

1. His fingerprints were found on the victim's car.

2. During his interviews with the police the appellant stated that he had never travelled in a car belonging to the victim and admitted that there was "bad blood" between himself and the victim because he thought the victim had had an affair with his sister-in-law.

3. The evidence of a witness Jocelyn Marmite ("Marmite") that from 3rd January to 17th January 1984 he was staying with the appellant and Lourdes at the appellant's house. That the appellant and Lourdes had left the house on 5th January 1984 and returned in the early hours of the following morning. That the appellant's arm was then bleeding and he took two blood stained knives from a bag and wiped them clean before burning the cloth which he used for this purpose. (Marmite had a number of previous convictions and during December 1983 and January 1984 was on the run from a prison from which he escaped).

4. The appellant's statement to the police that while he knew Marmite well he had not seen him during the relevant period.

As against Lourdes the prosecution relied upon statements made by Lourdes in which he claimed that he had been present when the appellant had murdered the victim and the appellant was the instigator and primarily responsible for what happened.

Neither the appellant nor Lourdes gave evidence at the trial but they both made unsworn statements denying that they were responsible. Unlike the appellant, Lourdes was acquitted of murder. He was convicted of manslaughter which was an understandable verdict having regard to the statements which he had made.

At the commencement of the trial counsel then appearing for the appellant made a submission that the two accused should be tried separately. The ground relied on in support of the application was the common one that if the two accused were jointly tried, the jury would have before them the statements made by Lourdes and this would be highly prejudicial to the appellant. In giving his ruling that the two accused should be jointly tried, the judge indicated that he had considered the relevant authorities, including the practice that obtains in England. He then added that the advantages of the offence being charged jointly against the two accused in the circumstances outweighed any risk of prejudice. He added that "whatever risk there might be in this regard will, in my view, clearly be avoided by proper directions to the jury. And it is not my assessment that the kind of jury that we have in this country will find it difficult conscientiously to follow my directions".

If it had not been for what happened at the committal proceedings as to the calling of Lourdes, this would be a wholly appropriate and probably the only appropriate conclusion for the judge to come to on authorities. Experience has shown that in situations of this nature, there can be serious disadvantages in trying separately the two accused in respect of the same charge arising out of a single incident. (See for example Regina v. Lake [1976] 64 Cr.App.R. 172). It was not suggested to the trial judge that the appellant wanted a separate trial because he was anxious to call his co-accused on his own behalf. The judge therefore did not take that factor into account in exercising his discretion, but even if this argument had been advanced, the judge would have been entitled to come to the same conclusion. This is the case even though it would mean that, if Lourdes did not give evidence, the appellant would be deprived of any evidence he could give. In his submission on behalf of the appellant, Mr. Robertson Q.C. accepted that this was the position. In any event Mr. Robertson did not go so far as to say that it would have necessarily been in the appellant's interest to call Lourdes, if he was in a position to do so, but indicated that the decision would be one which was finely balanced, though indicated factors which he argued meant that the advantages probably outweighed the disadvantages of doing so. It is, however, essential if there is to be a joint trial in these circumstances that the jury are given a very clear warning that the co-accused's statements as to the appellant's involvement, made when the appellant was not present, are not evidence against the appellant. This the trial judge did, as the Court of Appeal correctly held in the clearest and most ample terms.

After having dealt with the ordinary situation it is now necessary to consider the consequences of the complication that Lourdes was called as a witness on behalf of the prosecution at the committal proceedings. When he was called, the prosecution were obviously expecting him to give evidence in accordance with the statements which he had made to the police under caution prior to the commencement of the committal proceedings. Instead of doing this, Lourdes denied that the contents of the statements were true and he claimed that he had remained at his home with the appellant on the night of 5th January. He said he signed the statements because he was under duress from the police who told him that his wife would be locked up and his child would be taken to a nursery if he did not sign a statement implicating the appellant. As a consequence of his evidence, the committal proceedings were adjourned for the prosecution to consider whether they wished to continue their examination-in-chief. The prosecution decided not to do this and Lourdes was not recalled and the committal proceedings continued without any evidence from him. It is not suggested that the appellant required him to be recalled for cross-examination. It was after the conclusion of the committal proceedings against the appellant that on 12th June 1985 Lourdes was charged with murder and committed for trial on 21st August 1985.

Mr. Robertson, in these circumstances, made the following submissions:

1. A confessed accomplice (which is an appropriate description of Lourdes) who remains in jeopardy of being charged or convicted cannot be called to give evidence for the prosecution at committal proceedings against a defendant implicated in his confession.

2. It is an abuse of process for the prosecution to join a defendant in a trial with a confessed accomplice with the oblique motive of:

(i) getting the evidence of the accomplice, inadmissible against the defendant, before the jury; or

(ii) rendering the accomplice non-compellable as a witness for his co-defendant.

3. Such an oblique motive will be presumed to exist, at least where the confessed accomplice has been joined as a defendant (i.e. has been prosecuted), where the evidence which he gave at the committal proceedings was not only in breach of the first submission but also unhelpful to the prosecution.

There can be no dispute that what happened in this case was unusual. If by the time of the committal proceedings the prosecution had decided to charge Lourdes, then it would have been inappropriate to call him as a witness for the prosecution in the committal proceedings if it was intended to try him with the appellant. The position would not have been unlike that at a trial where it is clear that one defendant should not be called to give evidence for the Crown against a co-defendant, unless a nolle prosequi has been entered, or either the co-defendant has been acquitted or has pleaded guilty or, although jointly indicated, is not in the event tried with the defendant against whom he is called to give evidence (Archbold, Reissue (1993) 4-175). However an accomplice who has not been charged remains a compellable witness for the prosecution and the fact that he is called to give evidence against a co-accused without his being made aware of whether or not he is to be charged does not render his evidence inadmissible and in any event does not affect the validity of the committal proceedings in which he gave evidence (Regina v. Norkfolk Quarter Sessions ex parte Brunson [1953] 1 Q.B. 503). There is therefore no substance in the first of the appellant's submissions.

In considering the appellant's second and third submissions it is also important to have in mind that Mr. Robertson described as the appellant's broad proposition, which was:-

"Where an accomplice has been called as a prosecution witness at proceedings which result in a defendant being committed for trial, it amounts to an abuse of court's process (at least, in the absence of fresh evidence) for the Crown subsequently to join that accomplice as a co-defendant in the trial. In this event it becomes the duty of the court to rectify the abuse and to avoid the injustice consequent upon it by ordering a separate trial."

There was, as far as the Board is aware, in this case no fresh evidence which became available to the prosecution after the committal proceedings. Therefore, if this proposition is well-founded, the decision of the judge not to order the appellant and his co-accused to be separately tried was wrong. In this respect the proposition has a different impact from Mr. Robertson's second and third submissions which, as their Lordships understand them, apply to the trial itself rather than to the judge's decision as to whether the defendants should be jointly tried. However the practical result will be the same. In either event, if there was an abuse of process this would taint the appellant's conviction.

As to the power to intervene to protect the defendant against abuse of process there is now no doubt. In Regina v. Croydon Justices ex parte Dean [1993] Q.B. 769 the Divisional Court quashed a committal order (an exceptional exercise of the jurisdiction) where a person had been prosecuted who had received a representation or promise from the police that he would not be prosecuted, notwithstanding the absence of bad faith on the part of the police or any other authority. In Regina v. Horseferry Road Court, ex parte Bennett [1994] 1 A.C. 42, the House of Lords, in the words of Lord Griffiths (at page 61), took "the concept of abuse of process a stage further" so that it could apply to a case where a defendant had been returned to the United Kingdom unlawfully even through there was no suggestion that the appellant could not have a fair trial or that it would have been unfair to try him if he had been returned to the United Kingdom properly. Their Lordships considered that the courts had the power to interfere because it was part of the judiciary's responsibility for maintaining the rule of law "to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law". In the field of criminal law "if it comes to the attention of the court that there has been a serious abuse of power it should... express its disapproval by refusing to act upon it" (page 62).

While endorsing this approach to the jurisdiction the courts in relation to abuse of process, their Lordships do not consider that any abuse has been established to have occurred in relation to the appellant which would justify interfering with his conviction. Lourdes has not suggested that he was granted an immunity. If he had been granted an immunity and that immunity had subsequently been withdrawn, he would presumably have complained. However even assuming he had been granted an immunity, it is difficult to see why, in the circumstances of this case, that should be a matter which affects the appellant's conviction. The appellant was far from being prejudiced by Lourdes giving evidence in the committal proceedings; indeed the evidence which Lourdes gave was favourable to the appellant. If Lourdes' evidence was correct, it supported a suggestion that the police had been prepared to fabricate evidence against the appellant and confirmed the appellant's alibi that he was at home on the evening of 5th January 1984. Lourdes' evidence was, however, insufficient to prevent the committal of the appellant since there was ample other evidence which meant that it was inevitable that he would be committed. At the trial the defence were able to introduce references to this aspect of the committal proceedings although this may not have been strictly permissible. The appellant's position was therefore certainly no worse that it would have been if Lourdes had been charged with him at the outset as a co-defendant at the committal proceedings.

If it was shown that the prosecution was bringing proceedings against Lourdes for some "oblique motive" or perhaps more accurately some improper ulterior purpose such as is alleged in the second submission made on behalf of the appellant, then this could require the court to intervene probably by ordering separate trials. However their Lordships do not accept that "an oblique motive will be presumed" from what is known to have happened to Lourdes. No doubt it was as a result of Lourdes resiling from his statements in the committal proceedings that his position was reconsidered. However as there was ample evidence to justify his being charged with murder there is no reason to think that the prosecuting authorities did not come to the conclusion that he should stand trial on a perfectly proper reassessment of the evidence against him. In the absence of any complaint or evidence by Lourdes, it would be quite wrong to infer any impropriety.

Mr. Robertson also relies on the fact that, as a result of what happened, the appellant was unable to call Lourdes as a witness at his trial. Their Lordships have reservations as to whether in practice, if he had been available to be called, Lourdes would have been called. While in the normal way it is the duty of the prosecution in the interest of justice and in fairness of the defence to make available witnesses who gave evidence during the committal proceedings whom they do not choose to call at the trial, this is subject to the prosecution being able to do this. However, once the prosecution had decided that the right course was to prosecute Lourdes on a joint charge with the appellant, the prosecution ceased to be under an obligation to make Lourdes available. By rejecting the appellant's application for separate trials, the judge impliedly (not expressly because the point was not raised with him) perfectly properly approved this being the position for the reasons already referred to. In these circumstances it is not possible for the appellant to make any complaint about the result.

Finally, in relation to Mr. Robertson's arguments, it in necessary to refer to section 10 of the Constitution. This provides:

"(1) Where any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

(2) Every person who is charged with a criminal offence...

(e) shall be afforded facilities to examine, in person or by his legal representative, the witnesses called by the prosecution before any court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before that court on the same conditions as those applying to witnesses called by the prosecution.

(7) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.

While in some situations section 10 may go beyond the common law, this is not a situation. As Mr. Robertson has failed, for the reasons already given, to establish any grounds on which it would be appropriate to interfere with the conviction of the appellant, section 10 of the Constitution provides no assistance.

In addition to the arguments advanced by Mr. Robertson, two separate arguments were advance by Mr. Ollivry Q.C., on behalf of the appellant. He suggested that the judge had failed to give any satisfactory warning to the jury as to the unreliability of Marmite as a witness due to his very bad record. However their Lordships consider that the judge dealt with the matter perfectly properly by telling the jury that he was:-

"a jail-bird of great experience, who has lied on many occasions on which he was called upon to tell the truth. He has more than 25 previous convictions. I don't need to talk very much about Mr. Marmite. You have seen him. You have heard Counsel. It is for you to decide whether, with regard to the night in question, he is speaking the truth."

The other argument related to the one matter in respect of which the summing-up, which was generally admirably fair, can be faulted. It is with regard to the fingerprint evidence. It would have been preferable, as Mr. Ollivry submitted should have happened, if the judge had made clear that the fingerprint evidence was only of value if the jury were satisfied that there was no innocent explanation for the presence of the appellant's fingerprints on the deceased's vehicle. It was also correct to suggest that the fingerprints could corroborate Marmite's evidence. However, Marmite's evidence did not in fact strictly require corroboration and, certainly in the context of the summing-up as a whole, these criticisms are not regarded by their Lordships as in any way reflecting upon the safely and satisfactory nature of the appellant's conviction.

Although the appellant's case makes a reference to the delay in the execution of sentence of death which was imposed, this is not an issue on which their Lordships are required to express an opinion. Mr. Guthrie Q.C., on behalf of the State of Mauritius, informed their Lordships that the appropriate authorities in Mauritius were well aware of the recent decisions* of the Board as to the propriety of carrying out the death sentence after the expiration of the period of time which has elapsed since sentence was passed in the case of the appellant and their Lordships have no reason to doubt that the appropriate authorities in Mauritius will deal with the situation in accordance with the correct principles.

Accordingly their Lordships dismissed the appeal.

*

* *

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* Reporters' note: See Earl Pratt v. Attorney-General [1993] 3 W.L.R. 995; Peter Bradshaw v. Attorney-General [1995] 1 W.L.R. 936; Guerra v. Baptiste [1996] A.C. 397; Henfield v. Attorney-General of the Commonwealth of the Bahamas [1996] 3 W.L.R. 1079.

Fakeemeah Chel Mohammad and Another v Essouf Amanoullah Ahmad and Another

Fakeemeeah Chel Mohammad and Another

Appellants

v.

Essouf Amanoullah Ahmad and Another

Respondents

In the presence of

Electoral Supervisory Commission and Others

Co-Respondents

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Templeman

Lord Lane

Lord Slynn of Hadley

Lord Woolf

Lord Lloyd of Berwick

Judgment delivered on the 22nd March 1994

by Lord Slynn of Hadley

______________________________________________________________

(1) Constitutional law - Administrative law - Definition of public officer, public service -Election petition - Election for National Assembly - Power of appointment of returning officer - Democracy

(2) Constitutional litigation - Presumption of constitutionality of Acts of Parliament - Interpretation of the Constitution

(3) Privy Council - New point of law raised for the first time before the Judicial Committee - Privy Council jurisdiction - Electoral matters - Appeal as of right - The Board does not have sufficient local knowledge

(4) Supreme Court duties - Has to give a ruling on issues raised

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Cases referred to in judgment

Buxoo v. The Queen [1988] 1 W.L.R. 820

Government Teacher Union v. Roman Catholic Education Authority [1987] M.R. 88

Kennedy v. Purcell (1888) 59 L.T. 279

Senanayake v. Navarante [1954] A.C. 640

Theberge v. Laudry (1876) 2 App.Cas. 102

Vallet v. Ramgoolam [1973] M.R. 29

Legislations referred to in judgment

Civil Establishment Ordinance 1954

Constitution of Mauritius, sections 4, 38, 35, 40, 41, 74, 81, 89, 111, 112

Legislative Assembly Elections Regulations 1967, regulation 3

Legislative Assembly Elections Regulations 1968

Legislative Council Elections Ordinance, regulations 2, 14

Mauritius Appeals to Judicial Committee Order 1992 (United Kingdom )

Mauritius Constitution of 1966, section 35

Mauritius Constitution Order 1966, section 8

Mauritius Independence Order 1968

Mauritius Republic Act 1992 (United Kingdom)

Representation of the People Act (Amendment) Act 1968, Schedule 4,

Representation of the People Act, section 3, 45, 48

The following judgment was delivered by the Board:

On 18th October 1992 a by-election was held in the constituency of Port-Louis Maritime and Port-Louis East (N° 3). The first petitioner was one of the unsuccessful candidates, the second petitioner a registered elector in the constituency, at that by-election. The first respondent was the successful candidate.

Pursuant to section 45 of the Representation of People Act (RL 4/483-16 August 1958 as amended), the petitioners petitioned the Supreme Court of Mauritius for a declaration that the first respondent's election was null and void.

Two grounds were relied on. In the first place it was said that the returning officer at the election (the third co-respondent), his deputy and other staff including the presiding officers at the polling station were appointed by the second respondent, the head of the civil service, under powers delegated by the Public Service Commission (the fourth co-respondent), whereas, it is contended, they should have been appointed by the Electoral Supervisory Commission, the first co-respondent. The Electoral Commissioner appointed under the Constitution is the second co-respondent.

In the second place it was contended that the election was not free and fair in that it was conducted by an officer of the Prime Minister's office and that the appointments referred to were restricted to public officers more prone to pressure and influence from the Prime Minister, though in the further and better particulars served it was stated that such pressure and influence were not alleged to have been exercised in fact.

It should be said at once that this second contention was rejected by the Supreme Court and very properly not pursued by Mr. Cox, on behalf of the petitioners, before the Judicial Committee. Moreover it was fully accepted that, if there was any defect in the appointment of the returning officer and his staff, this had no effect whatever on the outcome of the election.

The remaining and principal question arises in this way.

By section 38 of the Constitution of Mauritius of 12th March 1968 an Electoral Supervisory Commission is established and by section 41(1) thereof it is provided that that Commission:

"shall have general responsibility for, and shall supervise, the registration of electors for the election of members of the Assembly and the conduct of elections of such members and the commission shall have such powers and other functions relating to such registration and such elections as may be prescribed."

Section 40 of the Constitution creates the office of Electoral Commissioner "whose office shall be a public office and who shall be appointed by the Judicial and Legal Service Commission". By section 3 of the Representation of the People Act as amended, the Electoral Commissioner is given "all the powers of the registration officer and of the returning officer in an electoral area" and it is provided that there may be appointed a barrister-at-law to be deputy electoral commissioner for an electoral area.

The Legislative Assemble Elections Regulations 1968 set out the detailed rules for the holding of such elections. They are contained in Schedule 4 to the Representation of the People (Amendment) Act 1968 (N° 12 of 1968). By regulation 3(1) thereof it is provided that the Electoral Supervisory Commission "may from time to time appoint a fit and proper person to be returning officer and some other fit and proper person to be deputy returning officer for each constituency". By regulation 20 the returning officer is required to provide the necessary equipment for the election and shall, subject to the approval of that commission, "appoint a senior presiding officer to preside at each polling station and a presiding officer to preside at each voting room therein" and "also appoint such poll and other clerks and other persons to assist in the taking of the poll".

Between 1968 and 1976 it was considered appropriate for the returning officer and other staff to be appointed in accordance with these provisions; but in 1976 in view of difficulties which had arisen in the conduct of the election the legal position was reconsidered and the view taken that these regulations, although part of a statute, were ultra vires in that they conflicted with section 89 of the Constitution. That provides:

"Appointment of officers.

(1) Subject to this Constitution, power to appoint persons to hold or act in any office in the public service (including power to confirm appointments), to exercise disciplinary control over persons holding or acting in such offices and to remove such persons form office shall vest in the Public Service Commission.

(2) The Public Service Commission may, subject to such conditions as it thinks fit, delegate any of its powers under this section by directions in writing to any member of the commission or to any public officer.

(3) This section shall not apply to

(a) the office of Chief Justice or Senior Puisne Judge;

(b) except for the purpose of making appointments thereto or to act therein, the office of Director of Audit;

(c) the office of Ombudsman;

(d) any office, appointments to which are within the functions of the Judicial and Legal Service Commission or the Police Service Commission;

(e) any office to which section 87 applies;

(f) any ecclesiastical office;

(g) any office prescribed by the Public Service Commission acting with the concurrence of a minister, being an office the emoluments attaching to which are paid at daily rates; or

(h) any office of a temporary nature, the duties attaching to which are mainly advisory and which is to be filled by a person serving under a contract on non-pensionable terms....

(6) Before the Public Service Commission appoints to or to act in any public office any person holding or acting in any office the power to make appointments to which is vested in the Judicial and Legal Service Commission or the Police Service Commission, the Public Service Commission shall consult that Commission.

(7) Before making any appointment to any office on the staff of the Ombudsman, the Public Service Commission shall consult the Ombudsman."

Subsections (4) and (8) provide for the approval of the Prime Minister or the Governor-General to be obtained before certain appointments are made. For the purposes of these provisions section 111 provides:

"Interpretation.

(1) In this Constitution... 'public office' means, subject to section 112, an office of emolument in the public service; 'public officer' means the holder of any public office and includes a person appointed to act in any public office; 'public service' means the service of the Crown in a civil capacity in respect of the Government of Mauritius."

In this regard it is to be noted that in Government Notice N° 54 of 1968 setting out the Mauritius Independence Order 1968 section 111 of the Constitution of Mauritius set out in the Schedule to the Order provides the "'the public service' means the service of the Crown in a civil capacity in respect of the Government of Mauritius." (Emphasis added)

Since 1976 the practice has been, as was done on this occasion, for the Electoral Commissioner to recommend a candidate to appointment as returning officer and as deputy returning officer after he had obtained the approval of the Electoral Supervisory Commission. The names as approved, however formally, by the Electoral Supervisory Commission were sent to the head of the civil service (as delegate of the Public Service Commission) for appointment. Appointments to other offices for the purposes of the election are suggested by the returning officer, and if approved by the Electoral Supervisory Commission and the Electoral Commissioner, are sent to the head of the civil service for appointment. With the approval of the Electoral Supervisory Commission only civil servants have been appointed for posts at elections. The reasons for this is that it is considered that civil servants have the requisite sense of responsibility, training and discipline; they can be appointed quickly without the need for advertisement, interview and assessment which would be difficult since something approaching 12,000 appointments are involved and impracticable if an election were called on the minimum notice period provided. It is accepted that since 1976 the system has worked efficiently during five general elections without problems which occurred prior to the change-over.

The question at issue can shortly be stated thus: was it lawful for the Electoral Supervisory Commission to be given these powers to appoint a returning officer or must the appointment be made by the Public Service Commission established under section 88 of the Constitution ?

The Supreme Court of Mauritius took the view that it was:

"clear that persons appointed to an office of emolument paid from public funds in the service of the state in a civil capacity in respect of the Government of the country, as electoral staff patently are, must, since they do not fall within either of the categories catered for in the section 89(3)(g) or (h), hold that appointment from the Public Service Commission or from a person to whom the power to appoint has been validly delegated."

The provisions of sections 40 and 41 of the Constitution and of section 3 of the Legislative Assembly Elections Regulations 1968 could not properly be read so as to override the provisions of sections 89 and 111 of the Constitution in matters of the appointment of electoral staff. "If the framers of the Constitution had intended to give the power of appointment to the (Electoral Supervisory Commission), they would have so stated expressly."

The petitioners, with the leave of Glover C.J., now appeal to the Judicial Committee. Mr. Guthrie, on behalf of the second respondent and of the second, third and fourth co-respondents, accepts that although no appeal would have lain to the Judicial Committee prior to independence, after independence, pursuant to the Mauritius Independence Order 1968 and, since Mauritius became a republic by virtue of section 81 of the Constitution, the Mauritius Republic Act 1992 and the Mauritius Appeals to Judicial Committee Order 1992 (S.I. 1992 N° 1716), an appeal lies to the Judicial Committee from a decision of the Supreme Court on an election petition by virtue of section 48A of the Representation of the People Act.

He submits, however, firstly, that no sufficient complaint was made that the election in this case was avoided. Their Lordships are satisfied that the complaint made in the petition is that the election was avoided for "irregularity" or "any reason" within the meaning of section 45(1)(a) of the Representation of the People Act.

He further submits that as a matter of principle their Lordships would not interfere in election matters save in exceptional circumstances, which are not present in this case. In the first place it is said that it is very unusual for there to be an appeal in election matters (see Theberge v. Laudry (1876) 2 App.Cas. 102; Kennedy v. Purcell (1888) 59 L.T. 279); these matters are peculiarly within the competence of the local court and are likely to require a speedy decision: Senanayake v. Navarante [1954] A.C. 640, 651. He draws attention to Buxoo v. The Queen [1988] 1 W.L.R. 820 in which the Judicial Committee declined to apply different criteria to criminal appeals from Mauritius after legislation provided for an appeal as of right.

Their Lordships accept that election petitions may raise issues which are peculiarly within the knowledge of the courts of the country from which the petition comes and that, in such cases, they should not readily interfere with the decision of the court, or the last court, dealing with those issues. This, however, is not such a case. The issue here is purely one of statutory construction which does not depend on local knowledge or local practice. If the existence of an appeal procedure is to have any meaning it must be capable of use in such a case as the present.

Mr. Guthrie then stresses that their Lordships have not had the advantage of the views of the Supreme Court on some of the arguments presented to them by the petitioners' counsel. That is right and in cases where local knowledge or practice might affect the outcome of the appeal their Lordships would be reluctant to interfere. As already stated this is not such a case, and, although their Lordships would have preferred to have the benefit of the views of the Supreme Court on these arguments, they are satisfied that on an appeal involving a question of statutory construction and no more, it is appropriate that they should give a ruling on the issues raised in this appeal. This is so not least since the matter could have come to their Lordships as an appeal from a decision following an application for a declaration as to the proper construction of the relevant constitutional and other legislative provisions. That would not have been an election petition but the arguments may have arisen before their Lordships for the first time on the appeal to the Judicial Committee as they did in this appeal.

The essential question of construction in the appeal concerns the relationship between section 41 and section 89 of the Constitution.

The petitioners contend that the Electoral Supervisory Commission was intended to be an "impartial, independent and apolitic body" (Vallet v. Ramgoolam [1973] M.R. 29, 38) outside the control of the executive. For that reason it was provided in section 41 that it should have:

"general responsibility for, and shall supervise, the registration of electors... and the conduct of elections... and... shall have such powers and other functions relating to such registration and such elections as may be prescribed."

"General responsibility" is wide enough to include the making of appointments and it makes every sense that the body having the conduct of elections should also appoint the people needed to carry out the tasks required for the proper and fair conduct of such elections. The provisions of the Legislative Assembly Elections Regulations 1968 did not go beyond the power conferred by section 41 of the Constitution. It should be presumed, until the contrary is established clearly, that the legislation adopted by Parliament is valid and within the Constitution.

The interpretation contended for by the petitioners, they say, is supported both by the history of the legislation and the fact that the Regulations of 1968 were adopted within a few weeks of the adoption of the Constitution. As to the history, the power to appoint returning officers was, before independence, vested in the Governor and the returning officer's appointment of other staff was subject to the approval of the Governor (regulations 2 and 14 of the Legislative Council Elections Regulations 1958 set out in Schedule 2 of the Representation of the People Ordinance 1958). By section 35 of the Constitution, scheduled to the Mauritius Constitution order 1966, the Electoral Supervisory Commission was given the same powers as those subsequently conferred in section 41 of the Constitution of 1968. By regulation 3 of the Legislative Assembly Elections Regulations 1967, made under section 8 of the Mauritius Constitution Order 1966, it was provided that in relation to a general election or a by-election, the functions of the Electoral Supervisory Commission should be generally performed by the Governor, though the power to appoint a returning officer was, by regulation 8, expressly vested in the Governor himself. It is, therefore, said not to be arguable that the power to appoint a returning officer was vested in the Public Service Commission when the powers were expressly conferred upon the Governor.

The petitioners further argue that by the Mauritius Independence Order 1968 the Governor was replace by the Governor-General but no provisions was made that the returning officer should be appointed by the Governor-General. Section 41 of the Constitution of 1968 re-enacted section 35 of the Constitution of 1966 and the Constitution of 1968 was followed by the Regulations of 1968. In view of the history of Parliament cannot have intended that the power to appoint should be transferred from the Governor to the Public Service Commission.

There is clearly force in many of the petitioners' submissions. The history of the legislation is, however, perhaps more debatable that the petitioners contend. Clearly as they say the power to appoint a returning officer did not go to the Governor-General and no less clearly the Regulations of 1968 do confer the power to appoint a returning officer on the Electoral Supervisory Commission. It is not, however, to be overlooked that section 35 of the Constitution of 1966 was in the same terms as section 41 of the Constitution of 1968, yet the power to appoint a returning officer was expressly vested in the Governor. It was not regarded as a power of the Electoral Supervisory Commission which the Governor should exercise on their behalf, nor was it thought appropriate at that time, to adopt a regulation vesting such power in the Electoral Supervisory Commission. Whatever deductions are to be made form the history the essential questions remains as to whether section 41 of the Constitution validly made it possible to confer that power by statute on the Electoral Supervisory Commission. If section 41 of the Constitution stood alone its terms are wide enough to be read as giving Parliament the power to authorise the Electoral Supervisory Commission to appoint a returning officer, as part of its general responsibility for the conduct of elections; the provisions of regulation 3(1) of the Legislative Assembly Elections Regulations 1968 are clearly within the ambit of "such powers and other functions relating to such registration and such elections as may be prescribed" in section 41 of the Constitution.

Section 41, however, does not stand alone. It has to be read with, inter alia, section 89 of the Constitution. By that section "Subject to this Constitution, power to appoint persons to hold or act in any offices in the public service... shall vest in the Public Service Commission". The petitioners contend that returning officers and other staff appointed for the purposes of elections are not persons holding or acting in "offices in the public service". They could not, therefore, be appointed by the Public Service Commission and could only be appointed by the Electoral Supervisory Commission. The reason section 89 does not apply, it is said, is that it is limited to the appointment of persons to hold or to act in any offices in the public service. Section 89 did not provide for the creation of offices, but only for appointments to fill them once they have been created. They can only be created pursuant to section 74 of the Constitution which is headed "Constitution of offices" and which provided:

"Subject to this Constitution and any other law, the Governor-General (now the President) may constitute offices for Mauritius, make appointments to any such office and terminate any such appointment."

The office of returning officer has never been created by the Governor-General or the President, not was it ever created by the Governor in Council by order made pursuant to the Civil Establishment Ordinance 1954, which authorised the Governor to establish offices in the public service, being service in a civil capacity under the Government of Mauritius. Moreover, it is said a returning officer cannot be a public officer since he does not hold an office in the public service, that is to say the service of the state in a civil capacity in respect of the Government of Mauritius.

The essential question on this part of the argument is whether a returning officer is one of those persons appointed "to hold or act in any offices in the public service" within the meaning of section 89. In their Lordships' view that does not mean that in order to be such a person there has to be an order of the kind contemplated by the Civil Establishment Act despite what was said by the Supreme Court in a wholly different context in Government Teacher Union v. Roman Catholic Education Authority [1987] M.R. 88, 93. It is largely a question of fact. Nor does it mean that the person so appointed has to be serving the "Government" of the day as is contended. It is sufficient that a person should be acting in the service of the Crown (now the State) in a civil capacity in respect of the Government of Mauritius, as the Government Notice of 1968 referred to provides.

In a democracy the holding of elections is an essential function of the state and persons appointed (and, as here, paid) by the state, for the conduct of those elections are clearly persons acting in the service of the state in a civil capacity in respect of the government (or Government) of Mauritius.

Their Lordships agree with the Supreme Court that such persons are "patently" within the category of "persons" referred to in section 89(1) of the Constitution. The category is a much wider one than that contended for by the petitioners. This is borne out by section 89(3)(h) of the Constitution which excludes from the provisions of the section "any office of a temporary nature" only if the holder performs duties which are mainly advisory and which is to be filled by a person serving under a contract on non-pensionable terms. A person holding an office of a temporary nature, the duties of which are not mainly advisory is clearly regarded as being a person holding or acting in an office in the public service.

Section 89 of the Constitution is in their Lordships' view the overriding provision in relation to appointments to offices in the public service and should be given a broad interpretation. It is only when offices are specificially excluded, as they are in subsections (3)(a) to (h) or under section 112 that section 89 does not apply. Many of the exclusions in section 89 are special cases, the reason for whose exclusion is clearly intelligible - as for example where appointments are otherwise to be made by the Judicial and Legal Service Commission or by the Police Service Commission, or where diplomats are to be appointed under section 87 or where there are to be appointments to an ecclesiastical office. The returning officer and other election staff, although appointed to an office of a temporary nature (as referred to in (h)), are not treated as a special category to be excluded from the provisions of the section.

Moreover the omission of the Electoral Supervisory Commission from the requirements in section 89(6), that the Public Service Commission shall consult the two commissions mentioned before appointing officers already appointed by those other two commissions, to offices in the public service does not, as the petitioners argue, show that the persons appointed for election purposes are outwith section 89. It merely recognises that such persons do not have continuing appointments, but are engaged for the temporary purpose of a specific election so that prior consultation of their appointment to some other post is inappropriate.

The independence and impartiality of the Electoral Supervisory Commission is of course accepted - but for the purpose of appointments like the Public Service Commission has not been shown to be other than impartial and independent. Moreover the conduct of public officers in the carrying out of these electoral functions is not impugned in these proceedings and there is no reason why they should not be appointed to act in the holding of elections (even if the Electoral Supervisory Commission had by the Constitution been constituted as the appointing authority).

The petitioners have referred to the Constitutions of certain other countries of the Commonwealth where it is said that the equivalent to section 89 co-exists with provisions conferring on an electoral commission the power to appoint returning officers and other election officials. Their Lordships have not considered these provisions in detail and say nothing about them.

It is suggested by the petitioners that section 89 is the general provision dealing with the public service and that section 41 is the special provisions dealing with elections. On the basis the generalia secialibus non derogant, section 41 should prevail over the general provision. Their Lordships do not accept this. Section 41 is a general provision dealing with the "general responsibility" for the conduct of elections. Appointment can at best be a part of this overall responsibility. Section 89 is the provisions dealing specifically with appointments. Section 41 cannot take away the specific provision contained in section 89 in relation to appointments.

It follows that the power of appointment and approval purported to be contained in regulations 3(1) and 20 of the Legislative Assembly Elections Regulations 1968 are not ultra vires the Constitution. The appointment of the returning officer by the second respondent under powers delegated by the Public Service Commission and his approval of other appointments was valid. This appeal must therefore be dismissed. The Supreme Court of Mauritius were right to dismiss the petition.

Even if their Lordships had concluded that appointments by the Public Service Commission were invalid they would not have declared this particular election to be null and void. By section 48 of the Representation of the People Ordinance 1958 as amended:

"Save as is otherwise provided by the Orders in council in respect of Legislative Council elections, no election shall be invalid by reason of a non-compliance with this Ordinance (or any Ordinance amending or replacing this Ordinance) or with any Ordinance or other law which may at any time hereafter be in force, if it appears that the election was conducted in accordance with the principles laid down in any such Ordinance or other law and that such non-compliance did not affect the result of the election."

The present election, if the appointment of the returning officer is invalid, was plainly conducted, as the petitioners accept, otherwise in accordance with the principles laid down in the relevant legislation and any non-compliance with the provisions of regulations 3 and 20 of the Regulations of 1968 did not affect the result of the election.

As to costs their Lordships accept that, if it had been made clear that the validity of the first respondent's election was not challenged in view of the provisions of section 48 even if the petitioners succeeded on the principal issue, the first respondent would not have found it necessary to be represented before the Judicial Committee. The petitioners must therefore pay his costs before their Lordships. There will be no other order as to the costs of this appeal. The order of the Supreme Court as to costs stands.

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