(1) Gilbert Ahnee
(2) Sydney Selvon and
(3) Le Mauricien Limited
Appellants
v.
The Director of Public Prosecutions
Respondent
FROM
THE SUPREME COURT OF MAURITIUS
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered on the 17th March 1999
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Present at the hearing:-
Lord Steyn
Lord Jauncey of Tullichettle
Lord Hoffmann
Sir Iain Glidewell
Sir Andrew Leggatt
[Delivered by Lord Steyn]
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This is an appeal from a judgment, given on 9th March 1994, by which the Supreme Court of Mauritius found the appellants guilty of the offence of scandalising the court and sentenced each appellant to pay a fine of 100,000 Rupees. The finding was based on an article which appeared in the daily afternoon newspaper “Le Mauricien” on Monday, 5th July 1993. The defendants were respectively the journalist, who wrote the article, the editor of the paper, and the owner and publisher of the paper.
The genesis of the article.
The background to the article of 5th July 1993 is as follows. In 1993 at a public meeting Mr. Harish Boodhoo, a local politician, made serious allegations about the impartiality of Sir Victor Glover, who was then Chief Justice of Mauritius, and generally called into question the conduct of business in the Supreme Court. Mr. Boodhoo sent a summary of his allegations to judges, members of the legal profession and the press. Sir Victor Glover brought proceedings for defamation against Mr. Boodhoo. On Monday, 5th July 1993 the Supreme Court sat to hear the trial of the action. At the outset Lallah J., the Senior Puisne Judge, observed that in view of the involvement of the Chief Justice he, Lallah J., had fixed the date of the trial, thereby allocating the case for hearing to himself and Boolell J. Then Lallah J. explained that there was a difficulty: the two judges who were due to hear the case were mentioned in the pleadings as potential witnesses. Mr. Boodhoo challenged the two judges and asked for an adjournment pending an appeal against a ruling in chambers on his applications to issue witness summonses to a number of persons who included the two judges. Lallah and Boolell JJ. granted an adjournment.
In the meantime, on Sunday, 4th July 1993, Mr. Ahnee, the first appellant, had prepared the article in which he made the following allegations:-
(a) that Sir Victor Glover had improperly fixed the date of hearing of his own case, and had chosen the judges;
(b) that Lallah and Boolell JJ. would hear the merits of the case despite the fact that they were liable to give evidence in the case.
Both allegations were wrong. A reporter of the paper, who attended the hearing in the Supreme Court on Monday morning, 5th July, should have realised the true facts. Instead he simply told Mr. Ahnee that the case had been adjourned. In the result the draft article was not corrected and “Le Mauricien” published it on the afternoon of Monday, 5th July.
The contempt proceedings.
On 16th July 1993 the Director of Public Prosecutions applied to the Supreme Court for an order committing the appellants for contempt of “having publicly scandalised the Supreme Court in an article in the issue of the widely circulated daily afternoon newspaper ‘Le Mauricien’ of Monday, 5th July 1993”. Counsel for the appellants raised a preliminary objection to the jurisdiction of the court. He contended that since the coming into force of the Constitution of Mauritius 1968 the Supreme Court no longer had the power to punish for contempt of court. By a judgment given on 22nd October 1993 the Supreme Court dismissed the preliminary objection. The ruling of the Supreme Court in this interlocutory judgment is challenged on the present appeal.
On 13th January 1994 the Supreme Court resumed the hearing of the merits. Mr. Ahnee, the writer of the article, and Mr. Grimaud, the reporter who had attended the hearing on Monday morning, 5th July 1993, testified. Mr. Ahnee accepted that his article was wrong in the respects already identified. On 9th March 1994 the Supreme Court found the appellants guilty of contempt. The Supreme Court ruled that it is sufficient for this kind of contempt that the publication was intentional and that the article was calculated to lower the authority of the Supreme Court. The Supreme Court further found (a) that the article imputed improper motives to the Chief Justice as well as to Lallah J., the Senior Puisne Judge, and Boolell J. and that it had been calculated to bring into contempt the administration of justice in Mauritius; (b) that Mr. Ahnee had failed to carry out any reasonable enquiry or to check his information concerning the facts he had stated and which he admitted to be mistaken; and (c) that Mr. Ahnee had not acted in good faith but with intention to mislead. The Supreme Court found that the editor and the publishers were also guilty of contempt. The judgment of 9th March 1994 is the second and final judgment under appeal.
The issues.
Two preliminary matters must be made clear. First, this appeal is only concerned with the form of contempt which is so colourfully described as scandalising the court. Secondly, on the hearing of the appeal it became clear that the appellants were seeking to argue matters which were not placed before the Supreme Court, notably in respect of the impact of specific constitutional guarantees on the power to commit for contempt. Having heard full argument on all issues their Lordships will exceptionally rule on legal arguments which were not considered by the Supreme Court. Broadly defined the issues were as follows:-
(A) Did the inherent power of the Supreme Court to punish for contempt survive the adoption of the Constitution?
(B) If the answer to (A) is in the affirmative, is the inherent power to punish for contempt nevertheless in conflict with specific guarantees under the Constitution on any of the following grounds, viz. -
(a) that it conflicts with freedom of expression;
(b) that there is no definition of the form of contempt under consideration;
(c) that there is no prescribed penalty;
(d) that there is no right of appeal.
(C) If the arguments based on the Constitution fail, is mens rea a necessary ingredient of the offence of scandalising the court?
(D) Finally, counsel for the appellants put forward arguments addressed to the merits of the decision of the Supreme Court and the propriety of the penalty.
ISSUE A: The Existence of the Power to Punish
for Contempt
In 1850 the Courts Act established the Supreme Court as a Superior Court of Record. Section 15 of the Courts Ordinance 1945 provided that the Supreme Court “shall possess and exercise all the powers, authority, and jurisdiction that are possessed and exercised by His Majesty’s Court of King’s Bench in England”. Since at least the decision in Procureur General v. Hitié [1908] M.R. 43 the Supreme Court on occasions before and after the coming into force of the Constitution on 12th March 1968 exercised the powers to punish for the offence of scandalising the court. But counsel for the appellants argued that the inherent power to punish for contempt was abrogated by the establishment of the Constitution.
Counsel for the appellants invited attention to the following provisions of the Constitution:-
Section 5:
“(1) No person shall be deprived of his personal liberty save as may be authorised by law -
…
(b) in execution of the order of a court punishing him for contempt of that court or of another court …”
Section 12:
“(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -
(a) in the interests of defence, public safety, public order, public morality or public health;
(b) for the purpose of … maintaining the authority and independence of the courts …
(c) …
except so far as that provision or, as the case may be, the thing done under its authority is shown not to be reasonably justifiable in a democratic society.”
Section 76:
“(1) There shall be a Supreme Court for Mauritius which shall have unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law other than a disciplinary law and such jurisdiction and powers as may be conferred upon it by this Constitution or any other law.”
Counsel for the appellants also drew attention to sections 2 to 5 of the Mauritius Independence Order 1968 which provides for the continued operation of “existing laws”, which by definition do not include the common law. This is a special instrument designed to ensure the continued operation of primary and subordinate legislation. In the Constitution itself “law” is undefined but counsel submits that it does not include the common law. It follows, he argued, that the inherent power to punish for contempt cannot prevail in the face of the provisions of sections 5 and 12 of the Constitution. He said there was a vacuum: after the establishment of the Constitution Parliament ought to have legislated for a power to punish for contempt of court but Parliament failed to do so. Counsel also drew attention to section 15 of the Courts Ordinance 1945 which in its original form provided that the Supreme Court “shall possess and exercise all the powers, authority, and jurisdiction that are possessed and exercised by His Majesty’s Court of King’s Bench in England”. In 1981 the legislature amended section 15 to read as follows:-
“The Supreme Court shall be a superior Court of record and, in addition to any other jurisdiction conferred on it, shall have all the powers and judicial jurisdiction necessary to administer the laws of Mauritius.”
Counsel argued that even if the original provision embraced a power to punish for contempt the provision introduced in 1981 is incapable of covering a power to punish for contempt. For all these reasons counsel submitted that the Supreme Court of Mauritius has no power to punish for contempt.
Counsel acknowledged that his main argument involves the remarkable proposition that the Supreme Court is powerless to act to protect the administration of justice even in the face of wilful interference with its basic processes. It could, for example, not punish a person who physically prevented a witness from attending to give evidence in a trial. That he said was the consequence of Parliament failing to legislate. Their Lordships are satisfied that this argument, carefully presented as it was, must fail. The proposition that under the Constitution an express provision is needed to provide for a power to commit for contempt misconceives the constitutional role of the Supreme Court and the extent of its powers under the Constitution.
The structure of the Constitution of Mauritius is important. Chapter I provides that Mauritius shall be a sovereign democratic state: section 1. Mauritius is a parliamentary democracy on the Westminster model: Hinds v. The Queen [1977] A.C. 195, at 212B-H; Duport Steels Ltd. v. Sirs [1980] 1 W.L.R. 142, at 157. The Constitution is the supreme law of Mauritius: any law inconsistent with the Constitution is invalid: section 2. Chapter II spells out various provisions for the protection of fundamental rights and freedoms of the individual. Sections 5 and 12 to which their Lordships have referred are part of this Chapter. Chapter V deals with Parliament. Subject to the provisions of the Constitution, Parliament may make laws for the peace, order and good government of Mauritius: section 45(1). Parliament may only amend the Constitution in accordance with the manner and form prescribed: section 47. Subject to the Constitution, the sole legislative power vests in Parliament. Having dealt with the special position of the Governor-General in Chapter IV, the Constitution makes general provision for the powers of the Executive in Chapter VI. This Chapter provides for the exercise of executive authority. Under the Constitution Chapter VI is the exclusive foundation of executive authority. Chapter VII then deals with the third department of government - the Judicature. The Constitution entrusts the Supreme Court with unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law other than a disciplinary law: section 76. It provides the Supreme Court with a supervisory jurisdiction over all inferior courts “for the purpose of ensuring that justice is duly administered by any such court”: section 82(1). It confers upon the Supreme Court original jurisdiction in questions of interpretation of the Constitution and the enforcement of fundamental rights including the right to the protection of the law: sections 3, 17, 83 and 84. It provides for a power of constitutional and judicial review over all persons and authorities exercising functions under the Constitution: section 119. The independence of the court is protected by provisions relating to the appointment and tenure of the judges: sections 76-78. In addition, the court is given appellate jurisdiction from subordinate courts where there is no other mode of appeal: section 82(2). The Courts of Civil and Criminal Appeal are made divisions of the Supreme Court: section 80.
From these provisions the following propositions can be deduced. First, Mauritius is a democratic state constitutionally based on the rule of law. Secondly, subject to its specific provisions, the Constitution entrenches the principle of the separation of powers between the legislature, the executive, and the judiciary. Under the Constitution one branch of government may not trespass upon the province of any other. Thirdly, the Constitution gave to each arm of government such powers as were deemed to be necessary in order to discharge the functions of a legislature, an executive and a judiciary. Fourthly, in order to enable the judiciary to discharge its primary duty to maintain a fair and effective administration of justice, it follows that the judiciary must as an integral part of its constitutional function have the power and duty to enforce its orders and to protect the administration of justice against contempts which are calculated to undermine it. A similar point was well expressed by the majority of the Canadian Supreme Court in MacMillan Bloedel Limited v. Simpson [1995] 4 S.C.R. 725. The context was the constitutionality of the power to punish for contempt. Speaking for the majority Lamer C.J. observed (at 754):-
“The core jurisdiction of the provincial superior courts comprises those powers which are essential to the administration of justice and the maintenance of the rule of law. It is unnecessary in this case to enumerate the precise powers which compose inherent jurisdiction, as the power to punish for contempt ex facie is obviously within that jurisdiction. The power to punish for all forms of contempt is one of the defining features of superior courts. The in facie contempt power is not more vital to the court’s authority than the ex facie contempt power.”
Their Lordships would respectfully adopt these observations. The principle of the separation of powers and the constitutional role of the judiciary rule out the technical and semantic arguments on which the appellants rely. All this is apparent on the face of the Constitution.
But there is also strong support for this reasoning in decisions of high authority. The strength of the doctrine of separation of powers is shown by the decision of the Privy Council in Liyanage v. The Queen [1967] 1 A.C. 259. After an unsuccessful coup d’etat the legislature of Ceylon passed legislation ad hominem to deal with perpetrators of the insurrection by widening the class of offences for which trial without a jury by three judges nominated by the Minister could be ordered. The Privy Council upheld a decision of the court in Ceylon that under the Constitution the legislation “was an infringement of the judicial power of the State which cannot be reposed in anyone outside the judicature”: at 288. Lord Pearce further observed about the impugned legislation (at 291-292):-
“If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature had no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringe the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution. In their Lordships’ view the Acts were ultra vires and invalid.”
In Noordally v. Attorney-General [1987] L.R.C. (Const.) 599 the Supreme Court of Mauritius concluded that a statutory prohibition of bail was unconstitutional. Moollan C.J. (with whom Glover J. agreed) observed (at 603-604):-
“The whole of our Constitution clearly rests on two fundamental tenets, the rule of law and the juxtaposition (or separation as it is more often called) of powers. More particularly, according to section 10 and Chapter VII, the trial of persons charged with criminal offences and all incidental or preliminary matters pertaining thereto are to be dealt with by an independent judiciary. … We conclude therefore that it is not in accord with the letter or spirit of the Constitution, as it presently stands, to legislate so as to enable the Executive to overstep or bypass the Judiciary in its essential roles, namely those of affording to the citizen the protection of the law and, as guardian of the Constitution, to ensure that no person’s human rights or fundamental freedoms are placed in jeopardy.”
These dicta underscore the essential role of the judiciary in protecting the due administration of justice and reinforce their Lordships’ view that the Supreme Court of Mauritius has power as part and parcel of its constitutional role to punish for contempt. See also Mahboob v. Government of Mauritius [1982] M.R. 135 and Director of Public Prosecutions v. Boodhoo (unreported), 23rd December 1992, Supreme Court of Mauritius. In agreement with the Supreme Court (Forget and Yeung Sik Yuen JJ.) their Lordships conclude that (subject to arguments based on specific constitutional guarantees to be considered later in this judgment) the Supreme Court of Mauritius has an inherent power to punish for contempt.
Having set out the major ground of their decision on the principal issue, their Lordships can briefly deal with the remaining points which were debated on the principal issue. Their Lordships reject the submission that “law” in the Constitution means statute law alone. There is a single legal order in Mauritius but its sources are French law, English law, and Mauritian statute law and case law. There is no sensible reason why the ordinary meaning of “law” in the Constitution should be cut down to exclude the common law and to confine it to statute law. Indeed the prescribed judicial oath requires a judge to do right to all manner of people “after the laws and usages of Mauritius without fear or favour …”: Third Schedule of the Constitution. This essential part of the main argument of counsel for the appellants is therefore wrong. Moreover, between 1968 and 1981 section 15 of the Courts Act (which was preserved by section 5 of the Mauritius Independence Order 1968) was in operation in its original form. It provided that the Supreme Court of Mauritius had the same powers as the High Court of England. Plainly that included a power to punish for contempt. In its original form section 15 was therefore an additional and sufficient basis for the power to punish for contempt. In 1981 a major revision of the Constitution was undertaken. Professor A. H. Angelo of the Victoria University of Wellington, New Zealand, was responsible for the detailed work. The original section 15 with its reference to English High Court procedure was considered out of date. Drawing on his New Zealand experience Professor Angelo adopted the technique of drafting section 15 to provide that the Supreme Court “shall have all the powers and judicial jurisdiction necessary to administer the laws of Mauritius”: see Hunt v. B.P. Exploration Co. (Libya) Ltd. [1980] 1 N.Z.L.R. 104; and Riley McKay Pty. Ltd. v. McKay [1982] 1 N.S.W.L.R. 264. The New Zealand jurisprudence makes clear that such a provision covers all the inherent powers of a superior court. And the power to punish for contempt is the paradigm of inherent powers. Section 15 as amended in 1981 was therefore an additional sufficient basis for the power to punish for contempt.
ISSUE (2): The impact of the Constitution on the Power to Punish for Contempt
It is now necessary to consider the impact of certain constitutional guarantees on the inherent power of the Court to punish for contempt. Concentrating on the arguments addressed to the Board in the present case, their Lordships’ views are as follows:-
(a) Freedom of expression: section 12.
Counsel submitted that the offence of scandalising the court is inconsistent with the protection of freedom of expression which is guaranteed by section 12 of the Constitution. Given that freedom of expression is the lifeblood of democracy, this is an important issue. And there is no doubt that there is a tension between freedom of expression and the offence of scandalising the court. But the guarantee of freedom of expression is subject to qualification in respect of provision under any law (1) “for the purpose of … maintaining the authority and independence of the courts” and (2) shown to be “reasonably justifiable in a democratic society”. Their Lordships have already concluded the offence of scandalising the court exists in principle to protect the administration of justice. That leaves the question whether the offence is reasonably justifiable in a democratic society. In England such proceedings are rare and none have been successfully brought for more than sixty years. But it is permissible to take into account that on a small island such as Mauritius the administration of justice is more vulnerable than in the United Kingdom. The need for the offence of scandalising the court on a small island is greater: see Feldman, Civil Liberties and Human Rights, in England and Wales, 1993, 746-747; Barendt, Freedom of Speech, 1985, 218-219. Moreover, it must be borne in mind that the offence is narrowly defined. It does not extend to comment on the conduct of a judge unrelated to his performance on the bench. It exists solely to protect the administration of justice rather than the feelings of judges. There must be a real risk of undermining public confidence in the administration of justice. The field of application of the offence is also narrowed by the need in a democratic society for public scrutiny of the conduct of judges, and for the right of citizens to comment on matters of public concern. There is available to a defendant a defence based on the “right of criticising, in good faith, in private or public, the public act done in the seat of justice”: see Reg. v. Gray [1900] 2 Q.B. 36, at 40; Ambard v. Attorney-General for Trinidad and Tobago [1936] A.C. 322 at 335; and Badry v. Director of Public Prosecutions [1983] 2 A.C. 297. The classic illustration of such an offence is the imputation of improper motives to a judge. But, so far as Ambard may suggest that such conduct must invariably be an offence their Lordships consider that such an absolute statement is not nowadays acceptable. For example, if a judge descends into the arena and embarks on extensive and plainly biased questioning of a defendant in a criminal trial, a criticism of bias may not be an offence. The exposure and criticism of such judicial misconduct would be in the public interest. On this point their Lordships prefer the view of the Australian courts that such conduct is not necessarily an offence: Rex. v. Nicholls (1911) 12 C.L.R. 280. Given the narrow scope of the offence of scandalising the court, their Lordships are satisfied that the constitutional criterion that it must be necessary in a democratic society is in principle made out. The contrary argument is rejected.
(b) No definition of contempt:
Section 10(4) contains an express guarantee against retrospectivity in criminal matters. Counsel for the respondent rightly conceded that there is to be implied in section 10(4) a further requirement that in criminal matters any law must be formulated with sufficient precision to enable the citizen to regulate his conduct: Sunday Times v. United Kingdom (1979) 2 E.H.R.R. 245. Counsel for the respondent submitted, however, that it is inappropriate to call the offence of scandalising the court a crime. Their Lordships accept that the offence of this form of contempt is an offence sui generis and that it is not part of the ordinary criminal law. On this basis counsel for the respondent argued that section 10(4) is inapplicable. This restrictive interpretation would mean that in the field of contempt retrospective legislation and hopelessly vague legislation would not be unconstitutional. That cannot be right. The implied guarantee of certainty is applicable to the power to punish for contempt. But the meaning of scandalising the court is explained in the case law: Sunday Times v. United Kingdom, supra. There is therefore no breach of the implied constitutional guarantee of certainty.
(c) No defined penalty:
It is true that there was originally no prescribed maximum penalty for the offence of contempt: see new section 18C of the Courts Act, which imposes a maximum penalty of a term of imprisonment for a year or a fine of 300,000 Rupees. But there is no substance in this objection since the range of appropriate penalties was at all material times apparent from the decisions of the Supreme Court.
(d) No appeal:
There is no appeal as of right against a finding of contempt of court. On the other hand there is a right of appeal on a matter of interpretation of the Constitution. Moreover, with the special leave of the Board there is a right of appeal on the merits of the decision to the Privy Council. This is the context in which counsel for the appellants submitted that there has been a breach of the right to a fair hearing under section 10(1) of the Constitution. Given the available remedies, and the special nature of the jurisdiction, their Lordships are not persuaded that there has been any breach of the right to a fair hearing under section 10(1) of the Constitution.
ISSUE 3: mens rea
Counsel for the appellants submitted that the Supreme Court was wrong to hold that mens rea was not an ingredient of the offence of scandalising the court. The publication was intentional. If the article was calculated to undermine the authority of the court, and if the defence of fair criticism in good faith was inapplicable, the offence was established. There is no additional element of mens rea. The decision of the Supreme Court on this point of law was sound.
ISSUE 4: The facts
Counsel for the appellants argued that in its contextual setting the article did not amount to a contempt. Their Lordships are satisfied that there is no ground upon which the decision of the Supreme Court, on the materials before it, can be challenged. The separate argument advanced in favour of the publisher on the merits is also without foundation. So far as there was a challenge to the lawfulness or appropriateness of the fines imposed the arguments are without substance.
Disposal
The appeal is dismissed. Given that the real substance of the appeal concerned important matters of constitutional law, and that bona fide resort to rights under the Constitution ought not to be discouraged, their Lordships make no order as to costs.
