La Compagnie Sucrière de Bel Ombre Ltée v The Government of Mauritius

La Compagnie Sucrière de Bel Ombre Ltée and 9 Other

Appellants

v.

The Government of Mauritius

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Goff of Chieveley

Lord Jauncey of Tullichettle

Lord Woolf

Lord Steyn

Sir Michael Hardie Boys

Judgment delivered on the 13th December 1995

by Lord Woolf

______________________________________________________________

(1) Constitutional law -Protection of property - Deprivation and compulsory acquisition - Freedom of contract - Leasing - Métayage - Obligation to contract - Landlord's freedom - Balancing exercise of advantages and disadvantages of regulation - Owner's rights and public interest

(2) Constitutional litigation - Neutralising interpretation of a provision - Constructive interpretation of a provision - Mode of interpretation of the Constitution - Generous and purposive approach - Literal approach - Divination

(3) Mauritian law - Mixed legal traditions in Mauritius - Origin of Mauritian law - French law - Déclaration des Droits de l'Homme et du Citoyen de 1789

(4) Comparative law - French Civil Code - Déclaration des Droits de l'Homme et du Citoyen de 1789 - Common Law - South African Constitutional Court case law - European Court of Human Rights - Supreme Court of the United States

(5) Privy Council jurisdiction - Substantial margin of appreciation to the Supreme Court

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Cases referred to in judgment

Colonial Sugar Refining Co. Ltd. v. Melbourne Harbour Trust Commissioners [1927] A.C. 343

James v. United Kingdom (1986) 8 E.H.R.R. 123

Minister of Home Affairs (Bermuda) v. Fisher [1980] A.C. 319

Pennsylvania Coal Co. v. Mahon (1922) U.S. 393

Société United Docks and Other v. Government of Mauritius [1985] A.C. 585

Société United Docks v. Government of Mauritius [1981] M.R. 500

Sporrong and Lönnroth v. Sweden (1982) E.H.R.R. 35

State v. Zuma and Others [1995] (4) B.C.L.R. 401

Yew Bon Tew v. Kenderaan Bas Nara [1983] 1 A.C. 553

Legislations referred to in judgment

Code Civil de Maurice, articles 544, 545

Code Civil français (France)

Constitution of Mauritius, sections 3, 8

Constitution of the United States, Vth, XIVth Amendments

Déclaration des Droits de l'Homme et du Citoyen de 1789 (France), artilce XVII

European Convention on Human Rights, Article 1 of the First Protocol

Sugar Industry Efficiency (Amendment) Act 1993, sections 5, 9

Sugar Industry Efficiency Act 1988, section 5

The following judgment was delivered by the Board:

This is an appeal from a decision of the Supreme Court of Mauritius dated 13th July 1994. It is brought with the leave of that Court. The Supreme Court decided that the additional statutory regulation of land cultivated under métayage introduced by section 5 of the Sugar Industry Efficiency (Amendment) Act 1993("the 1993 Act") did not contravene sections 3 and 8(1) and (2) of the Constitution of Mauritius. Sections 3 and 8 are in Chapter II of the Constitution of Constitution. Chapter II is the part of the Constitution which contains the provisions protecting the fundamental rights and freedoms of the individual. These include the right to property, which is the right which it is alleged section 5 of the 1993 Act contravenes.

The growing of sugar cane plays a central role in the Mauritian economy. One system of land tenure under which sugar cane is grown is métayage. Métayage is an historic system of leasing land established by the French prior to Mauritius becoming a British colony. Under métayage, planters, like the present appellants, lease their land to métayers in return for a rent based on a share of the price now fixed by the stature which the métayers receive for the sugar cane they harvest on the land. At the present the share varies between 15% and 20% of the price.

The relationship between a planter and a métayer is a personal one. It has many of the qualities of a partnership and is usually of long standing. Even prior to the 1993 Act, if a métayer should die the contract came to an end, but the métayer's heirs were entitled to be compensated up to the amount of the profits which would have been earned if the lease had contained to the end of the term. In the past the land subject to métayage was usually marginal land. Over the years the land has been substantially improved. In the course of argument Lord Lester, who appears on behalf of the appellants, indicated that the appellants would welcome being able to retake possession of the land when a contract of métayage comes to an end.

Section 5 of the 1993 Act amended the Sugar Industry Efficiency Act 1988 ("the 1988 Act") by adding a new section, section 5A to the 1988 Act. The respective preambles to the 1988 and 1993 Acts indicate their purpose and are in the following terms.

The 1988 Act:-

"To provide for an efficient and viable sugar industry, to preserve agricultural land, to promote agricultural diversification and diversification within sugar, to ensure that all commitments under the Sugar Protocol are met and to ensure fairness, equity and transparency within the sugar industry."

The 1993 Act:-

"To provide for additional incentives in order to increase the efficiency and the viability of the sugar industry, to promote greater diversification within sugar and in agriculture and to ensure that all additional commitments of the country are honoured."

In the Supreme Court the executive director of the Mauritius Sugar Authority gave evidence which described more fully what the legislation was designed to achieve. Prior to the 1993 Act the métayage land was already subject to substantial statutory control. The position is described in the judgment of the Supreme Court in these terms:-

"...it is well known that historically the sugar industry has been the main pillar of this country's economy, affecting the well-being not only of the partners industry but also of almost everyone else. For this reason, the industry, as a whole, has been profoundly organised over the years with a view to achieving progressively the highest degree of efficiency, with equity and fairness for all partners in the industry, even if this entails the statutory regulation of its operations by, in particular, limiting and controlling individual contractual freedom.....

Under the enactment, everyone planting canes is bound to sell his canes, by a statutorily regulated contract appended to the Act, to no other miller than the miller in the appropriate factory area and the miller is bound to buy the canes. The price paid for the canes is in terms of sugar, including its by-products of their value, the sucrose content of the canes being determined by a statutorily prescribed method. The delimitation of factory areas does not depend on the will of the persons owning land in or around the area but is determined by a Board with guaranteed access to the Courts when there is a grievance against a decision of the Board.

If only in the above respects, unfettered freedom to contract in respect of various aspects of the exercise of one's right to property has been made subject to statutory control. It can be imagined what chaos, possibly leading to the destruction of the industry itself, would follow from unbridled competition among the millers or planter which would inevitably result from untrammelled freedom of contract among the partners of the industry. All these controls and measures must be seen in the context of the additional responsibility and duty of the State to ensure, in the public interest, the remunerative marketability of a national product by the negotiation of quotas with outside institutions like the EEC, as was indicated in evidence, or under bilateral State-to-State arrangements which only the State could undertake."

By inserting section 5A into the 1988 Act, the 1993 Act did, however, introduce a considerable degree of additional control over land which is subject to contracts of métayage. The important provisions of the section are in these terms:-

"(1) Whenever a métayer contract expires and the métayer is willing to renew the contract, the planter shall renew it for such period which shall not be less than the period of the expired contract.

(2) Whenever a métayer:-

(a) is no longer able to cultivate land under métayage for the production of sugar cane during the lease period defined in the métayer contract; or

(b) is not willing to renew a métayer contract at its expiry, the planter shall, through the Mauritius Sugar Authority, offer the land on lease for such period which shall not be less than seven years to métayers cultivating land in the same factory area, or, if there is none, in any other factory area.

(3) Where the land under métayer for the production of sugar cane is not taken by any other métayer it shall not be put to any use other than the production of sugar cane without the prior written authority of the Minister."

It will be observed that section 5A gives the métayer the right to renew his contract, requires the planter to relet the land to a métayer and confines the use of the land to growing sugar cane.

Sections 3 and 8(1) and (2) of the Constitution provide:-

"3. Fundamental rights and freedoms of the individual.

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 rights and freedom 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."

"8. Protection from deprivation of property.

(1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where -

(a) the taking of possession or acquisition is necessary or expedient in the interest of defence, public safety, public order, public morality, public health, town and country planning or the development or utilisation of any property in such a manner as to promote the public benefit or the social and economic well-being of the people of Mauritius;

(b) there is reasonable justification for the causing of any hardship that may result to any person having an interest in or right over the property; and

(c) provision is made by a law applicable to that taking of possession or acquisition -

(i) for the payment of adequate compensation; and;

(ii) securing to any person having an interest in or right over the property a right of access to the Supreme Court, whether direct or on appeal from any other authority, for the determination of his interest or right, the legality of the taking of possession or acquisition of the property, interest or right, and the amount of any compensation to which he is entitled, and for the purpose of obtaining payment of that compensation.

(2) No person who is entitled to compensation under this section other than a resident of Mauritius, shall be prevented from remitting, within a reasonable time after he has received any amount of that compensation, the whole of that amount (free from any deduction, charge or tax made or levied in respect of its remission) to any country of his choice outside Mauritius."

Similar language to be found in the provisions of many of the Constitutions of former British territories. The initial approach to their interpretation and application has recently been considered by acting Judge Kentridge in the Constitutional Court of South Africa in his judgment in State v. Zuma and Others [1995] (4) B.C.L.R. 401 which was unanimously endorsed by the other 10 members of the court. Judge Kentridge reviewed the relevant authorities in a number of Commonwealth Jurisdiction. He referred to Lord Wilberforce's comments in Minister of Home Affairs (Bermuda) v. Fisher [1980] A.C. 319 at p. 328-9 emphasising two principles which have to be applied when interpreting constitutional provisions of this nature: the first being that they should be given a generous rather than a legalistic interpretation while at the same time giving effect to the purpose for which they were enacted; the second being that respect must still be paid to the language used, while at the same time taking into account the traditions and usages which give meaning to that language. As Judge Kentridge added in relation to the second principle:-

" If the language used by the lawgiver is ignored in favour of a general resort to 'values' the result is not interpretation but divination." (412H)

When construing the language of sections 3 and 8 of the Constitution in accordance with these principles, it is also appropriate to give weight to the two legal traditions which exist in Mauritius, both of which attach great importance to the protection of property rights from deprivation by the State without proper compensation. They are, as to Mauritius private law, the French Civil Code and, as to Mauritian public law, the common law. An illustration of the former is provided by Article 545 of the Mauritian Civil Code, now repealed by the Land Acquisition Act 1973, which was derived from Article XVII of The Declaration of the Rights of Man and of the Citizen 1789; and as to the position at common la reference can be made to the statement of Lord Warrington in Colonial Sugar Refining Co. Ltd. v. Melbourne Harbour Trust Commissioners [1927] A.C. 343 at 359. Construed literally the language of section 3 could have been treated as only providing an introductory declaration as to the scope of the rights referred to in the subsequent sections of Chapter II, including section 8. However because of the background to the Constitution, both in the Supreme Court of Mauritius, in Société United Docks v. Government of Mauritius [1981] M.R. 500 and in the Privy Council, in Société United Docks and Other v. Government of Mauritius [1985] A.C. 585, section 3 has been held to create additional protection for property to that provided by section 8. In the Privy Council, Lord Templeman was not troubled by what could be said to be the literal interpretation of the language of the section. He stated the position as being as follows:-

"Their Lordships have no doubt that all the provisions of Chapter II, including section 8, must be construed in the light of the provisions of section 3. The wording of section 3 is only consistent with an enacting section; it is not a mere preamble or introduction. Section 3 recognises that there has existed and declares that there shall continue to exist. the right of the individual to protection from deprivation of property without compensation, subject to respect for others and respect for the public interest. Section 8 sets forth the circumstances in which the right to deprivation of property can be set aside but it is not to curtail the ambit of section 3. Prior to the Constitution, the government could not destroy the property of an individual without payment of compensation. The right which is by section 3 of the Constitution recognised and declared to exist is the right to protection against deprivation of property without compensation. 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. Loss caused by deprivation and destruction is the same in quality and effect as loss caused by compulsory acquisition."

The correct approach is therefore to read section 3(c) and section 8 together, with the relevant language of each section influencing the interpretation of the other. Section 3(c), however, remains at the same time both the more general and the more qualified provision: more general, as its protection applies to a wider range of situations and a broader concept of property than does section 8; more qualified, because the protection it provides is restricted by broader limitations than that to which the protection provided by section 8 is subject. Even when generously construed section 8 is limited to protecting property and property interests from interference which in a broad sense involves some formal compulsory taking of possession or acquisition of property or of what loosely corresponds to a right over property. The property or interest in property must be sufficiently identifiable to be capable of being taken possession of or acquired in this way. However once property to which section 8 applies is compulsorily taken or acquired, then the section is contravened unless all the requirements of section 8(1)(a), (b) and (c) are fulfilled or one of the other limited exceptions in section 8 applies. The qualification on the protection provided by section 3 is in much more general terms. There is therefore a significant distinction between the protection provided by section 3(c) and section 8, notwithstanding their close relationship.

An analogy can be drawn with Article 1 to the Protocol of the European Convention of Human Rights. Article 1 provides:-

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

Article 1 comprises three distinct rules. As was stated by the European Court of Human Rights in Sporrong and Lönnroth v. Sweden (1982) E.H.R.R. 35 at page 50:-

"The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph."

The first rule approximately corresponds to the protection provided by section 3(c), the second rule corresponds to the opening words of section 8(1) to "the taking of possession", and the third rule to the references to compulsory acquisition in the remainder of section 8(1).

The grounds of decision in the Sporrong case are also of some interest to the issues on this appeal. The complaint in the Sporrong case was that land of the applicants in Stockholm had been the subject of expropriation permits entitling the properties to be acquired compulsorily and notices prohibiting any construction on the land for a great many years (up to 23 years) prior to the permits and the notices being revoked. During this period the Court held the substance of the owners' property rights were "significantly reduced" and rendered "precarious and defeasible" without their receiving compensation. This interference did not contravene the second or third rule but it did contravene the first rule of Article 1. The first rule required a proper balance to be maintained between the owners' rights and the requirements of the public interest. The prolonged period during which the owners were without remedy meant there was here a violation of rule 1. In coming to their decision the Court treated the threat of expropriation as the primary intrusion on the complainant's interests. The prohibition on construction was a secondary matter. The particular interest of the decision for the present appeal is that the threat of expropriation and prohibition on building had limited or no immediate effect on the owners' property rights. There was no taking of possession or acquisition of property. There was no more than interference with the ability of the owners to exercise a normal incident of ownership of property and a threat of expropriation. However, this was a sufficiently substantial interference that when continued for a disproportionate period of time it amounted to what could be described as a constructive deprivation of the property rights of the owners.

In Sporrong the European Court was adopting a fact and degree approach which is not dissimilar to that of Holmes J. in Pennsylvania Coal Co. v. Mahon (1922) U.S. 393 at 415/6. When dealing with the test for determining whether there has been a "taking", for the purposes of the 5th and 14th Amendments to the United States Constitution, Holmes J. pointed out that there would be more and more "qualification" of private property rights until they disappeared and added that "the general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognised as a taking". Holmes J. was referring to the cumulative effect of number of different restrictions on the normal incidents of ownership of property, none of which in themselves would amount to a taking but which cumulatively amounted to a taking. The European Court was also looking at the cumulative effect of interference, but in their case they were considering the cumulative consequences of the continuation of a state of affairs which only constituted a breach of Article 1 when continued for a prolonged period of time.

This approach involves looking at the totality of what is relied on as an interference with interests, is relevant when determining whether there has been a contravention of section 3(c). In Mauritius it is the task of the Supreme Court to carry out that exercise. Unless the Supreme Court in doing this misdirects itself in law or otherwise fails to have proper regard to the relevant consideration, it is not for their Lordships to interfere with their decision. Their Lordships on an issue of this nature, like the European Court, will extend to the national court a substantial margin of appreciation. Similarly their Lordships are in accord with the European Court in respecting the national legislature's judgment as to what is in the public interest when implementing social and economic policies unless that judgment is manifestly without foundation (James v. United Kingdom (1986) 8 E.H.R.R. 123).

Having set out the general approach to be adopted to the constitutional provisions on which the appellants rely, it is now necessary to apply that approach to the issues which the appellants raise. Those issues depend on the effect of section 5A of the 1988 Act (as amended) on the appellant's property interest. Lord Lester made his submissions under three alternative headings. The first submission was as to whether section 5A applies to contracts of métayage which were in existence when section 5 of the 1993 Act came into force. Under section 9 some sections, not including section 5, have expressly appointed dates of commencement. Section 5 came into force on the Act being passed by the National Assembly on 2nd February 1993. The second submission was as to whether the 1988 Act, as a result of it being amended by the inclusion of section 5A, should be construed as having an implied requirement for the payment of compensation for the loss resulting to planters in consequence of the controls introduced by section 5A. The third submission is the one of most substance. It is whether the Supreme Court properly came to the conclusion that Section 5A does not contravene section 3 or 8 of the Constitution.

Underlying the appellants' first head of argument is the contention that if section 5A were to apply to contracts of métayage which existed when the section came into force this would retrospectively change the terms of those contracts adversely to the interests of the planters. This, it is contended, would be unfair to the planters and so it is argued that the section should be construed so as not to have this effect. In the Supreme Court it was conceded by counsel then appearing for the Government that the section only applies to future contracts, that is contracts which were made after the section came into force. Before their Lordships that concession was withdrawn.

Read literally section 5A only bites when contracts have come to an end and therefore strictly it does not affect existing contracts. However this approach is unduly legalistic and the reality is that if section 5A does apply to existing contracts it will have significant consequences for the appellants. It will mean that while the legislation is in force the appellants will have to relet their property on a contract of métayage irrespective of whether they wish to do so and possibly to let it to a "partner" with whom they would prefer not to have anything to do. It is therefore a situation where the section will not be construed so as to have this unfair effect unless the result is unavoidable because of the language used ( see Yew Bon Tew v. Kenderaan Bas Nara [1983] 1 A.C. 553, Lord Brightman at page 558). However here the result is unavoidable. If, as Lord Lester submits, the effect of section 5A is to reduce substantially the value of the planters' reversion if it applies to existing contracts, then unless section 5A does so apply it will not ensure the security of tenure for métayers which it was clearly intended they should have. This is because if the section did not apply to existing contracts the planters could choose whether to apply the Act to their land or not. It would only apply to their land if they entered into a fresh contract with a métayer. Presumably their decision would be not to do so if this would be adverse to their interests. Thus the métayers would not benefit from the protection the 1993 Act provides. Their Lordships are satisfied that this cannot be the intended result and so section 5A must be construed so as to apply to contracts in existence when it came into force. This does not mean the 1993 Act is to be classified as being retrospective. An Act is not normally to be treated as retrospective because as is the case with the 1993 Act it applies to an existing state of affairs.

Their Lordships are equally clear that it is impossible to construe section 5A as including an implied right to compensation merely because of its effect on existing contracts.

Turning therefore to the third issue, the question which has to be answered is whether the Supreme Court properly came to the conclusion that even without any compensation section 5A does not contravene section 3 or 8 of the Constitution. The answer to this question is more appropriately treated as depending on section 3 than section 8. The restrictions which section 5A places on contracts of métayage cannot even on a generous interpretation be considered as the "compulsorily" taking possession or acquiring possession of a right in or an interest over property which is the subject of the protection provided by section 8(1). Even in the case of section 3 there is difficulty in bringing the increased control of land which section 5A involves within its language. The ownership of land has a multiplicity of incidents and every regulation of those incidents in the public interest does not attract a prima facie right to compensation. This is especially true where, as here, the regulation is part of the general control of an industry which is already subject to substantial regulation in the interests of all those involved in the industry, including the appellants.

However, even assuming that section 3 does apply because cumulatively the controls in section 5A amount to a constructive deprivation of property, it by no means follows that section 5A contravenes section 3. The restrictions on the contract of métayage only contravene the protection provided by section 3 if, because of the lack of any provision for compensation, they do not achieve a fair balance between the interests of the community and the rights of the individuals whose property interests are adversely affected. In the situation which existed when the 1993 Act came into force this is very much a question of fact and degree for the Supreme Court. The regime which existed before the 1993 Act was not suggested to be other than constitutional and the fact that the position of métayers was improved by the 1993 Act does not mean that the scheme was no longer in balance. The Supreme Court took the view on the evidence that the section "was designed to give some security of tenure to what was a small and weak sector of the sugar industry constituted by métayers".

Lord Lester questioned whether there was sufficient evidence available before the Supreme Court to enable the balance to be struck and he therefore suggested that it might be necessary to remit the case for further evidence to be called. However their Lordships do not consider that to be necessary. Mr. Rajputty, who is the executive director of the Sugar Authority, gave ample evidence as to the background of the statutory sugar regime to enable the balancing exercise to be performed between the interests of the community at large and the planters.

Lord Lester's main criticism, however, of the Supreme Court's decision is that they took a too narrow approach to the construction of sections 3 and 8 of the Constitution in a passage of their judgment in which they examined the categories of property rights referred to in those sections. Lord Lester recognises that his criticism of this passage of their judgment if made out might only result in the question having to be reconsidered by the Supreme Court.

The initial passage of the judgment to which Lord Lester directs criticism is a passage which deals with both section 3 and 8 is in these terms:-

"In our view, these provisions of sections 3 and 8 relate basically to two categories of rights to property. The first relates to property of any description. The second relates to any interest in or right over property. The first category, in our view, envisages the ownership itself of the property, whereas the second envisages some right or interest in property other than ownership, for example, a lease, a usufruct or some other such right which is distinct from the right to the ownership of the property, so that where the State compulsorily acquires a property which the owner has leased to a third party, the State is bound to compensate not only the owner but the third party or indeed any other party who has some right in the property."

The passage is more appropriate when applied to section 8 than section 3. However, in the next paragraph of the judgment, after making other statements which Lord Lester criticises, it is made clear that what was said earlier is subject to what they refer to later a "constructive deprivation". The Supreme Court then goes on to consider the analogous situation under Article I of the European Convention with its reference to the wide term "possessions". Having done so the judgment states:-

"In this context, it may very well be that, although there may not be deprivation as such, nevertheless the restrictions and controls are such as to be so disproportionate to the aims which may be legitimately achieved under the concluding part of section 3 as to leave the right to the property as a valueless shell. In which case, the Courts may very well hold that there has in effect been a deprivation, even though that may only be what one might describe as a "constructive deprivation".

The crucial question that remains to be decided is whether by restricting the freedom of contract of landlords in respect of leases with "métayers", in the manner envisaged under section 5A, the plaintiffs have been effectively deprived of their property.

In our view, the restrictions and controls imposed under section 5A do not amount to a deprivation of property, although they certainly amount to restrictions and controls on all the landlord's otherwise unfettered freedom of contract in respect of his property. These restrictions and controls are permissible under section 3 of the Constitution and under Article 544 of the Civil Code and, given their nature do not amount to what one may characterise as an effective or constructive deprivation of property. We say so for the following reason:..."

The "reasons" are then set out in separate paragraphs. They include a resumé of the restrictions to which the planters are subject by section 5A and of the benefits which accrue to the planters as well as other members of the sugar industry and the community as a whole. The "reasons" make it abundantly clear that the Supreme Court has carried out the very exercise which Lord Lester correctly argues they should. This involves weighing the benefits of the legislative action to the appellants as major players in the sugar industry as against the controls to which section 5A subjects them.

It is right as Lord Lester also argues that to refer to a "valueless shell" is to overstate the situation which needs to exist before there is a constructive deprivation. Nonetheless their Lordships are satisfied that the reasoning of the judgment as a whole makes it clear that the Supreme Court set themselves the right task and having done so properly concluded that there had been no contravention of the Constitution. Indeed on the basis of the facts set out in their "reasons" it would not have been open to the Supreme Court reasonably to come to any other conclusion.

Their Lordships therefore dismiss this appeal with costs.

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J. Subramanien and Others v The Governement of Mauritius and Others

J. Subramanien and Others

Appellants

v.

The Government of Mauritius and Others

Respondents

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Goff of Chieveley

Lord Browne-Wilkinson

Lord Slynn of Hadley

Lord Nicholls of Birkenhead

Sir Michael Hardie Boys

Judgment delivered on the 11th December 1995

by Sir Michael Hardie Boys

______________________________________________________________

(1) Constitutional law - Definition of public officer and public service - Set of criteria - Definition of property and property rights within the Constitution

(2) Administrative law - Legitimate expectations - Judicial Review - Revised Edition of the Laws of Mauritius by the Attorney-General's Office - Erroneous belief by the Attorney-General's Office

(3) Constitutional litigation - Procedure - Application for redress - Distinction between fundamental rights (Chapter II of the Constitution) and other constitutional rights - Difference between constitutional action and contractual or tortious claim - Procedural requirements for constitutional action

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Cases referred to in judgment

Government Teachers Union and Another v. Roman Catholic Education Authority and Another [1987] M.R. 88

Fakeemeah Chel Mohammad and Another v. Essouf Amanoullah Ahmad and Another [1994] 1 W.L.R. 697

Legislations referred to in judgment

Aided School Teachers' Pension Fund Ordinance 1952

Civil Establishment Act 1954

Constitution of Mauritius, sections 3, 8, 16, 17, 74, 83, 89, 111

Education (Amendment) Regulations 1989

Education Ordinance 1957

Education Regulations 1957, regulations 3, 4, 50

Industrial Relations Act 1974, section 2

Official Secrets Act 1972

Ordinance of 1944, section 13

Pension Fund Ordinance 1928

Pension Fund Ordinance 1955

Pension Fund Ordinance 1958

Pension Fund Ordinance 1981

Public Service Regulations 1967, regulation 7

Revised Laws of Mauritius 1982

Widows' and Children's Pension Scheme Act 1969

The following judgment was delivered by the Board:

This appeal concerns the status and entitlements of teachers in aided primary schools in Mauritius.

Background

The appellants had for many years been teachers in Roman Catholic primary schools. These are aided schools, as defined in the Education Ordinance 1957, for they are in receipt of grants-in-aid from the Government funds. The appellants brought these proceedings against the respondents because of an agreement entered into on 12th April 1990 between the Minister of Education on the one part and Cardinal Margéot on behalf of the Roman Catholic Education Authority (the RCEA) of the other part. The RCEA was joined in the proceedings as a co-respondent. The agreement provided, among other things, that the RCEA would be entitled to "benefits to which Government teachers are entitled by law in virtue of their public offices", that "all teachers of the RCEA will remain within the RCEA establishment"; and that "as teachers and other staff of the RCEA are not public officers, they will not be eligible for promotion to any public office".

The effect of these provisions, or rather of their implementation by the Government, was to deny to teachers in Roman Catholic aided primary schools a number of benefits and opportunities they had previously enjoyed. Whereas they had customarily been eligible for transfer to, and promotion within, the State school system and the public service generally, to earn additional remuneration as election officers and in supervising examinations, to accrue and use overseas passage benefits and to take advantage of related travel tax exemptions, these were all now to be denied to them. They could move only within the RCEA establishment, although presumably they could, like anyone else, apply to join the public service.

The agreement was the result of negotiations between the Government and the Roman Catholic authorities following the promulgation of the Education (Amendment) Regulations 1989 by which it became a condition of a primary school's continuing eligibility to a grant-in-aid that "it shall not, in recruiting its staff, or otherwise, make any discrimination on the grounds of race or religion". Although the educational authorities of other religious persuasions were able to live with this change, the RCEA did not. The outcome of the negotiations was that the Government agreed to exclude the RCEA's schools from the application of the new requirements, but only on the terms that were subsequently contained in the agreement of 12th April 1990.

The appellants say that they were not consulted about the agreement. It is accepted that they were not parties to it and are not bound by it. Nonetheless its terms have been implemented, except in one relatively minor respect; hence these proceedings. Rather than attempt a paraphrase, their Lordships set out in full the paragraphs that formulate the appellants' claim before the Supreme Court:-

"7. Plaintiffs aver:-

(a) that they are public officers;

(b) and/or have always been treated by the Defendants as public officers and have over the years enjoyed the same rights and privileges and been subject to the same rules and regulations as other primary School Teachers who are public officers and had legitimate expectations to continue to be treated as such;

(c) the effect of the Agreement is to deprive them of their acquired rights to property and to the protection of the law in breach of Sections 3 and 8 of the Constitution of Mauritius.

8. Plaintiffs aver that to the best of their knowledge and belief they have no other redress available under any other law.

9. Plaintiffs therefore pray for (a) declaration under Section 17 of the Constitution of Mauritius that they are and have always been public officers (b) alternatively that they have acquired the same rights and privileges as Primary School Teachers who are public officers and can legitimately expect to continue to enjoy the same status as public officers, (c) that the agreement is accordingly void in so far as they are affected thereby.

10. Plaintiffs further pray for an order directing the Defendants:

(a) to reinstate them in their rights as Public Officers; or

(b) should it be held that they are not Public Officers to restrain the Defendants from depriving them of the status, rights and privileges which they had always been enjoying ever since they joined the service and which they can legitimately expect to continue to enjoy;

(c) for such other relief as the Court may deem fit and proper."

Section 17 of the Constitution confers on the Supreme Court original jurisdiction to redress contraventions of any of sections 3 to 16 thereof. The appellants claimed contraventions of section 3(a) (the right to the protection of the law) and 3(c) (the right to protection from deprivation of property without compensation) and section 8, which prohibits the compulsory taking possession of, or the compulsory acquisition of, property unless certain requirements are met. Insofar as the claim is based on the appellants being public officers, a declaration that that is what they are doubtless could, if it were necessary, be made under section 17, thus laying the basis for any further relief to be granted by reason of that status. However, it seems that the case for the declaration was not put in this way in the Supreme Court. Rather, it was argued, as it was before their Lordships, with reference to section 89 of the Constitution. This section declares that the power to appoint persons to, and to remove persons from, office in the public service is vested in the Public Service Commission.

If the appellants did indeed hold office in the public service, the agreement of 12th April 1990 could not have affected that fact. But relief for contravention of section 89 is provided by section 83 of the Constitution, not section 17. It is therefore understandable for the Supreme Court, seized with section 17 proceedings, to hold as it did that it could not make the declaration even had the appellants made out their claim.

Are the teachers public officers ?

The issue of the true status of the teachers is fundamental to all aspects of the case, and their Lordships now turn to it. The term "public officer" is defined by section 111 of the Constitution as the holder of a public office, including a person appointed to act in a public office. "Public office" is in turned defined, with an exception not presently relevant, as an office of emolument in the public service. "Public service" is defined as "the service of the State in a civil capacity in respect of the Government of Mauritius". Thus the issue in this case is whether teachers in aided primary schools are in "the service of the State... in respect of the Government of Mauritius" or whether they are in the service of the RCEA.

The Supreme Court had considered this issue on an earlier occasion in what is known as the GTU case, Government Teachers Union and Another v. Roman Catholic Education Authority and Another [1987] M.R. 88, and had concluded that a teacher in an RCEA primary school was not a public officer and was therefore subject to the disciplinary jurisdiction of the RCEA, not that of the Public Service Commission. Its reasons were that under section 89 of the Constitution it is only the Public Service Commission that is able to appoint public officers; and the particular teacher's appointment had in fact been made by the RCEA. Further, to be a public officer the person must hold a post created by an establishment order under the Civil Establishment Act 1954 and section 74 of the Constitution; and this teacher did not.

This last reason was disapproved by their Lordships' Board on a very different topic see: Fakeemeah Chel Mohammad and Another v. Essouf Amanoullah Ahmad and Another [1994] 1 W.L.R. 697. Judgment in that appeal had not been delivered when the present case was heard in the Supreme Court, but Mr. Ollivry, who had appeared for the teacher in the earlier case also, endeavoured to persuade the Supreme Court that the evidence he adduced, which had not been before it on the earlier occasion, should lead it to a different conclusion on this occasion.

The Supreme Court was not persuaded. It acknowledge that the evidence showed that in a number of respects teachers in aided schools had been all but equated with Government school teachers (indeed, there was a belief in some official quarters that they were public officers), but considered that the statutory scheme showed a clear legislative intention that teachers such as the plaintiffs are not servants of the State. For the reasons which follow, their Lordships agree with this conclusion.

The applicable legislation is the Education Ordinance 1957 and the Education Regulations 1957. The Ordinance recognises several kinds of school, in some respects treating them all alike, in others in differing ways. Thus the Minister of Education has control of the education system as a whole, with particular responsibility for "the effective direction, development and co-ordination of all educational activities"; for the recruitment and training of teachers; and for the provision of adequate educational facilities and opportunities: section 3.

Specific provision is made for aided primary schools. It is a requirement that there be Education Authorities, responsible to the Minister "for the good administration of the aided primary schools under their control": section 6. (This provision refers back to the earlier Ordinance of 1944, under section 13(3) of which the RCEA was declared to be the appropriate Educational Authority for Roman Catholic aided primary schools.) By far the greatest part of the Ordinance, Part III, headed "Control and Inspection of Schools", does not apply to schools entirely maintained and controlled by the Government, and so enacts a separate regime for schools such as the aided primary schools.

Under this Part, each school must have a registered manager, who is responsible for the general administration of the school. The Minister is given control over such matters as building standards, teacher qualifications and experience and the suitability of managers. Teachers must be registered, and the Minister may refuse or cancel registration on grounds of unfitness or misconduct; but cancellation of the registration of a teacher in an aided primary school may occur only after consultation with the appropriate Education Authority. There are rights of appeal to an Appeals Tribunal.

As distinct from the registration of teachers, there are provisions for the employment of teachers, which show that it is the manager, doubtless as agent of the Education Authority, who is the employer. Consistently with the extent of Ministerial control, it is provided that no teacher may be employed unless he or she is either a qualified teacher or is authorised to teach by the Minister. But application for authority to employ is made by the manager; and it is to the manager that authority to employ is granted, that authority specifying the particular school in which the teacher may be employed.

The Regulations do not have a separate Part dealing with non-Government schools, but they too recognise and maintain a distinction between Government and aided primary schools.

The Minister's obligation under the Ordinance for the recruitment and training of all teachers is fleshed out by a prescribed minimum qualification for permanent appointment in both Government and aided primary schools: regulations 3; and the Minister makes the first appointment of newly trained teachers to both Government and aided primary schools, but in the case of the latter he must take into account the wishes of the appropriate Education Authority, and may not appoint a teacher who is unacceptable to it: regulation 4(2)(a). Once appointed to an aided primary school, a teacher's promotion is in the hands of the Education Authority, subject to the Minister's approval: regulation 4(2)(b). Also of relevance is regulation 9, which gives the Minister power, in consultation with the appropriate Education Authority, to second or transfer a teacher from a Government to an aided primary school and vice versa, and "from the service of one Education Authority to another".

Apart from this provision, the Regulation did not at first deal with the appointment of teachers other than on their first appointment, that presumably being a matter for the Education Authorities themselves. But in 1989 a new regulation was added, controlling the right of an aided primary school to recruit staff: the position must be advertised, applicants must pass a qualifying examination set by the Ministry and selection is by a panel equally representative of the Ministry and of the school. This is quite different procedure form that for the appointment of teachers in State schools.

In addition to the disciplinary measure of cancellation of registration, the 1957 Regulations contain in regulation 6 a further provision applicable only to teachers in aided primary schools. It declares that these teachers are subject to the same disciplinary regulations as teachers in Government schools. But then in regulation 7 different disciplinary procedures are provided for: for Government teachers, the procedure is that in the Public Service Commission Regulations 1967, while for teachers in aided primary schools it is such as is determined by the Minister in consultation with the Education Authority concerned. It was this very distinction that lay at the heart of the GTU case, for the issue there was whether the teacher was subject to the disciplinary procedures of the RCEA or of the Public Service Commission.

Another relevant provision is regulation 31, which authorises grants of aid. The grants may cover capital and maintenance items, and "the salaries of teachers and school servants, and such allowances (as may be approved) at the same rates and subject to the same conditions as in the Government primary schools". It is clear that the grants are payable to the Education Authority; while under regulation 50(1) a manager's administrative responsibilities include the regular payment of salaries to the staff. It seems that at one time teacher's salaries were paid direct by the Ministry, but that was simply a matter of administrative convenience and could not affect the status of the teachers.

Their Lordships have no difficulty in concluding that the scheme and effect of the Education Ordinance and the Regulations is to provide a separate regime for aided primary schools, which have their own administrative structures and their own particular responsibilities. They own and administer their own schools, and employ their own teaching and other staff. The State provides funding and insists on the maintenance of proper standards, in particular in regard to the qualification of teachers, which is uniform throughout the profession. The power of first appointment may properly be seen as an aspect of the State's insistence on maintaining standards. It does not affect the fact that it is the Education Authorities that employ the teachers.

Brief reference to other statutory provisions confirms this conclusion. First, section 2 of the Industrial Relations Act 1974 declares that in that Act "public officer" includes an aided primary school teacher. Although Mr. Ollivry submitted that the definition was intended simply to make clear what was already the position, their Lordships see the more likely explanation to be that it was thought that without expanded meaning such teachers would not be included at all.

Secondly, there is the history of the Pension Fund Ordinances. The Widows' and Orphans' Pension Fund was established in 1886 for the benefit of the widows and orphans of public officers, the latter being defined in an amending and consolidating Ordinance of 1928 as in general persons "permanently appointed to an office on the fixed establishment of the Colony". In an amending Ordinance of 1955 the definition of public officer was extended so as to include "a teacher as defined in section 2 of the Aided School Teachers' Pension Ordinance 1952". The latter Ordinance was the second relevant topic to be passed in 1952. The first, Pensions Ordinance 1952, empowered the granting of pensions to "officers who have been in the service of Mauritius", the pensions being payable on their retirement form the public service, a term defined in very similar words to the definition later to appear in section 111 of the Constitution. Manifestly, this Ordinance was not intended to provide for teachers in aided schools, for three months later the Legislature enacted the Aided School Teachers' Pensions Ordinance 1952, which was made retrospective to 1st January 1943, when, their Lordships were informed, the RCEA was first established.

The clarity with which the status of teachers in aided schools was thus differentiated form that of public officers subsequently became clouded. In 1981 the second of the 1952 Pensions Ordinances was repealed and nothing was put in its place. The reason, the Supreme Court explained, was that the 1981 Ordinance was an enactment "pour faire la toilette juridique" at the time of the publication of the Revised Edition of the Laws of Mauritius by the Attorney-General's Office; and it was then believed in that office, erroneously in the Supreme Court's view, "that primary aided teachers had somehow been 'converted' into public officers, with the result that a separate enactment to provide for their pensions had become unnecessary".

Their Lordships were informed from the Bar that this same belief explains another change. The defendants' pension scheme was re-enacted by the Widows' and Children's Pension Scheme Act 1969, which repeated the definition introduced with the earlier Ordinance, by which aided school teachers were expressly included in the definition of "public officer". Bu that particular part of the definition was omitted, apparently without statutory authority, in the publication of the Revised Edition of the Laws of Mauritius in 1982.

These more recent changes, whether made with legislative authority or not, do not alter the distinction drawn in the earlier legislation. There has certainly been no legislative provision expressly conferring any changed status on teachers in aided primary schools. Their Lordships must agree with the Supreme Court that the belief held in the Attorney-General's Office was erroneous. Indeed the Solicitor-General of Mauritius acknowledge as much before their Lordships' Bar.

Perhaps by reasons of this erroneous belief, perhaps because until recently teachers in aided schools have been accorded the same benefits as their Government counterparts, appointment procedures have been inappropriate and have further contributed to the teachers' misunderstanding of their position. It was evidence on this topic that Mr. Ollivry submitted to the Supreme Court in his bid to have it not follow its earlier decision in the GTU case.

The evidence consists of documents provided to and signed by would-be teachers on their application and acceptance for training; and by these people on completion of their training and their initial appointment. It is unnecessary to describe them in detail. Generally, they are consistent with the dual educational system and a choice as to the kind of school in which the applicant wishes to teach. Quite inconsistent, however, is a requirement for a declaration under the Official Secrets Act 1972, headed "To be signed by Public Officers on appointment", and referring in its text to employment in the Public Service. Further, while letters of appointment are under the hand of the Secretary of the RCEA, they state that the appointment is "subject to the regulations governing the Public Service of Mauritius and the Public Service Commission Regulations". The recipient is told that his or her whole time will be "at the disposal of the Government".

This material is certainly confusing and contradictory, but it cannot affect the proper construction of the Constitution. For the reasons given, their Lordships are satisfied that the Supreme Court was right in its conclusion that teachers in aided primary schools are not and have not been public officers. The appellants therefore were not entitled to the declaration they sought in that regard.

Other remedies

As the Supreme Court recognised, this conclusion does not necessarily mean that the appellants have no remedy. It does, however, mean that the Government's implementation of the agreement of 12th April 1990 did not result in a deprivation of property within the meaning of either section 3 or 8 of the Constitution. This is because as they were not public officers, the appellants had no right to any of the benefits they had previously enjoyed. Even had they been public officers, some of the benefits, such as assisting in elections or with the supervision of examinations, were no more than opportunities which may or may not have been open to them at particular times. But the appellants are not public officers, and so all the advantages they enjoyed and no longer have must for the future be seen as no more than lost opportunities or expectations. They are not existing property or property rights.

The Supreme Court thought that passage benefits and their corollary, the foreign travel exemption, might be in a different category. In appropriate circumstances, a claim in respect of matters such as these, if substantiated, could be dealt with under section 17(2) of the Constitution, which enables the Court to make such orders, issue such writs, and give such directions as it considers appropriate to enforce any of section 3 to 16. The Court declined to act under those powers, instead relying on the proviso to subsection (2), which is that the Court "shall not exercise its powers... if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law". As their Lordships understand the judgment, the Court's point was that the appellants had not established their right to the two particular benefits in the present proceedings, but it was open to them to do so in other proceedings.

Before their Lordships' Board, Mr. Ollivry, in this respect supported by Mr. D'Unienville, counsel for the RCEA, who had in other respects supported the respondents, submitted that the Supreme Court ought to have dealt with all these matters in the present proceedings; and further that it ought to have addressed the administrative law issue, founded on legitimate expectations, raised in the alternative prayer in the pleadings. The Supreme Court did not expressly address that issue at all.

Their Lordships' conclusion that the appellants are not public officers means that if the appellants have a remedy -and as to that their Lordships express no view- it is not a constitutional remedy. Any remedy would lie in contract or in tort, or in judicial review. A constitutional action is not an appropriate vehicle for a contractual or tortious claim, nor indeed for judicial review, which has procedural requirements of its own. No doubt, had judicial review, or relief in contract or in tort, been sought in a separate actions or separate actions, the Supreme Court could have ordered all issues to be tried together or in sequence. But such a course was not embarked upon, and their Lordships can therefore see no reason to hold that the Supreme Court erred in its decision to dismiss the present claim.

Conclusion

Their Lordships accordingly dismiss the appeal. The appellants must pay the costs of the respondents by the co-respondent should pay its own costs.

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