Ramawat Dosoruth v The State of Mauritius

Ramawat Dosoruth

Appellant

v.

(1) The State of Mauritius and

(2) The Director of Public Prosecutions

Respondents

FROM

THE SUPREME COURT OF MAURITIUS

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

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 21st October 2004

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Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Hope of Craighead

Lord Brown of Eaton-under-Heywood

Sir Andrew Leggatt

[Delivered by Lord Hope of Craighead]

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1. At the time of the events which gave rise to this case the appellant was employed as a senior works inspector by a District Council in Mauritius. On 30 September 1995 he was found guilty by the Intermediate Court of Mauritius of having wilfully and unlawfully received a reward for an act in the exercise of a function as an agent of a public department which was not liable to remuneration, contrary to section 126 of the Criminal Code. He was sentenced to twelve months imprisonment with hard labour and fined Rs10,000. He appealed against this judgment to the Supreme Court of Mauritius. This was in the exercise of his right of appeal under section 92 of the District and Intermediate Courts (Criminal Jurisdiction) Act. On 16 June 1997 the Supreme Court (Lam Shang Leen and Balgobin JJ) dismissed his appeal. He did not seek leave to appeal to the Judicial Committee of the Privy Council against the judgment of the appellate court.

2. On 3 July 1997 the appellant commenced proceedings by plaint with summons in the Supreme Court in which he sought constitutional redress under section 17 of the Constitution of Mauritius. He was represented in these proceedings by Mr Ollivry QC, who did not appear for him either at the trial or at the hearing in the appellate court. Mr Ollivry asked the Supreme Court to declare that a miscarriage of justice had occurred and to order a new trial of the case by the Intermediate Court or to revise the proceedings itself in the light of the facts averred by him in his application. On 30 June 1999 the Supreme Court (Matadeen and Seetulsingh JJ) upheld the respondents’ objection to these proceedings and set aside the plaint. On 19 June 2000 the appellant was granted leave to appeal to the Judicial Committee under section 81(1)(c) of the Constitution. Execution of the judgment of the trial court was stayed pending the decision of the Judicial Committee on the appeal. The appellant now seeks an order from the Board remitting his case to the Supreme Court for a further hearing of his appeal.

The facts

3. The case against the appellant at his trial was that he had received the sum of Rs5,000 from Mrs Marie Anic Rosy Khedoo as a bribe in connection with her application for a development permit. There was undisputed evidence that it was part of the functions of a senior works inspector to report to the District Council’s engineer on every such application. Mrs Khedoo had applied for a development permit in September 1991. Thereafter, in accordance with the normal procedure, the views of various authorities were sought. By December 1991 all the relevant reports had been received from these authorities. They were favourable to the proposed development. But a favourable report from the engineer was still needed before the appellant could prepare the permit for the development. It then had to be signed by the Secretary of the District Council before it was issued. The practice was for the engineer to rely on the senior works inspector’s site report when making his recommendation. This was a function for which the senior works inspector was not entitled to any remuneration by the applicant. But it was a function for which, according to Mrs Khedoo, the appellant had sought and been paid a reward by her for his services.

4. In his application to the Supreme Court the appellant gave the following brief account of the evidence which was led against him as it appeared from the record in the trial court. Mrs Khedoo, who was the complainant, gave evidence. She said that the alleged bribe was paid by means of a cheque for Rs5,000 drawn cash on 21 December 1991. She remitted the cheque to the appellant in return for the delivery to her of the development permit at the District Council’s office that afternoon. A bank official Mr Armand Lecordier gave evidence that Mrs Khedoo’s cheque for Rs5,000 was encashed at the main branch of the State Commercial Bank in Port Louis on 21 December 1991. The development permit was delivered to Mrs Khedoo by a clerical officer of the District Council. The appellant then averred that this incident could not have happened as alleged by these witnesses, as 21 December 1991 was a Saturday and it is a notorious fact that the Bank and the offices of the District Council are not open on Saturday afternoons.

5. It was not suggested to Mrs Khedoo at the trial that the incident which she described could not have happened on the afternoon of 21 December 1991 as both the District Council’s office and the Bank to which the cheque was taken for encashment were closed. Nor was this point mentioned in any of the twenty six grounds on which the appellant appealed against his conviction to the appellate court. The appellant explained that it was not until after his grounds of appeal had been filed that it was realised that 21 December 1991 was a Saturday and it was appreciated that it would have been impossible for him to have presented the cheque for payment or cause it to be so presented before the Bank closed on that day if it was not until the afternoon of that day that the cheque was handed to him by Mrs Khedoo.

6. The appellant’s counsel sought to raise this point during the hearing of the appeal by the appellate court. He submitted that it was notorious and within judicial knowledge that the Bank and the District Council’s offices were not open on Saturday afternoons. But counsel for the respondents took objection to this submission, of which there was no notice in the grounds of appeal. The objection was upheld, and the appellant’s counsel was prevented from developing the point as part of his argument. There is no mention of it in the judgment which the appellate court delivered on 16 June 1997.

7. The appellant claimed that in these circumstances he was denied a fair hearing of his appeal against his conviction by the appellate court. He sought redress under sections 1 and 3 of the Constitution on the ground that he was denied the protection of the law. He maintained that he had no statutory means of establishing that he had been the victim of a miscarriage of justice. This was because, on his interpretation of the relevant legislation, the appellate court did not have power to order a new trial or to re-open a criminal case which had already been adjudicated upon by the Intermediate Court. For the respondents it was submitted that, ex facie of the appellant’s own averments, there had been no breach of his constitutional right and that in any event there were adequate means of redress available to him.

The legislation

8. Section 1 of the Constitution provides that Mauritius shall be a sovereign democratic State to be known as the Republic of Mauritius. By section 3 it is recognised and declared that in Mauritius there have existed and shall continue to exist without discrimination each and all of the human rights and fundamental freedoms which it sets out, including

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

Section 10(1) provides:

“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.”

Section 17 provides, in subsections (1) and (2):

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

(2) The Supreme Court shall have original jurisdiction to hear and determine any application made by any person in pursuance of subsection (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of sections 3 to 16 to the protection of which the person concerned in entitled….”

Section 82(1) provides:

“The Supreme Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such order, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court.”

9. Section 92 of the District and Intermediate Courts (Criminal Jurisdiction) Act 1888 provides that where any person is charged with an offence before a Magistrate or before the Intermediate Court an appeal shall lie to the Supreme Court against any final decision of that court by the person charged against his conviction or sentence. Section 96(1) provides:

“On hearing an appeal, no new evidence shall be admitted, and the information, depositions and other evidence and conviction before the Intermediate or District Court shall be revised by the Supreme Court.”

Section 96(5) provides:

“Where, on an appeal under section 92, the Supreme Court is of opinion that a serious irregularity has occurred, it may declare the trial to be a nullity and order a fresh hearing.”

The judgment of the Supreme Court

10. It is plain from the judgment which the Supreme Court delivered in the proceedings for constitutional redress on 30 June 1999 that it was not persuaded that there was any substance in the appellant’s complaint. The Court rejected the argument that there had been a breach of section 1 of the Constitution, on the ground that all the rights and freedoms which are guaranteed to an accused person are set out in Chapter II of the Constitution. It rejected the contention that the absence of any provision in the law permitting a new trial or a revision of his trial in the Intermediate Court was a breach of section 3 as elaborated in section 10 of the Constitution, as this did not amount to the denial of a fair hearing. It pointed out also that the Supreme Court had power in the exercise of its appellate jurisdiction under section 92 of the District and Intermediate Courts (Criminal Jurisdiction) Act to declare a trial to be a nullity and order a fresh hearing if it was of opinion that a serious irregularity had occurred. Furthermore, it was not in dispute that the appellant had enjoyed the full protection of the law at his trial and that he was given a fair hearing in the Intermediate Court. Nor was it suggested that any of the provisions to secure protection of the law as enshrined in the express terms of section 10 of the Constitution had been breached in his case.

11. The Supreme Court was equally unimpressed by the appellant’s argument that he had been dealt with unfairly when, after he had been convicted and lodged his grounds of appeal, it was realised that the cheque was alleged to have been handed over and encashed on a Saturday afternoon when the Bank and the District Council offices were not open. In its view there was no substance in the argument that he was dealt with unfairly in the hearing of his appeal. As the Court explained in the penultimate paragraph of its judgment:

“The plaintiff himself claims that that fact was only realised after trial. But the appellate court, which in the light of the decision in DPP v Sabapathee [1997] MR 235 must have gone over all the evidence, was alive to the fact that 21 December 1991 was a Saturday and properly refused, on objection being taken, to allow the plaintiff to canvass on appeal the issue that judicial notice be taken of the fact that Banks and District Council Offices are not open on Saturday afternoons in Mauritius since such a fact is neither notorious, nor beyond serious dispute, nor of common knowledge. The plaintiff had ample opportunity to cross-examine the complainant on the fact that the event took place on a Saturday afternoon and his counsel’s failure to do so constitutes and acceptance of that part of the complainant’s evidence and it is not open now to the plaintiff, as it was not even on appeal, to challenge that evidence, the more so as the evidence was procurable at the trial stage itself, and did not arise ex improviso. As learned counsel for the first defendant aptly put it, evidence cannot be adduced by instalments.”

Discussion

12. Mr Ollivry QC submitted that the appellant had been denied a fair hearing at two levels – in the appellate court when his counsel tried to advert to the fact that the Bank and the District Council’s office were closed on Saturday afternoons, and in the proceedings for constitutional relief from which this appeal has been taken as there too the Supreme Court refused to take this fact into account. He made it clear that he was not suggesting that there had not been a fair hearing in the trial court, or that there was anything unfair in the way the subsequent proceedings had been conducted. His point was that the law itself stood in the way of a fair hearing of the appeal by the Supreme Court in its appellate capacity and that this point had not been addressed as it should have been in the proceedings for relief under section 17 of the Constitution.

13. The starting point for an examination of these submissions is to be found in the Constitution of Mauritius. Mr Ollivry did not press the argument that the appellant was entitled to relief under section 1 of the Constitution, which declares that Mauritius is a sovereign democratic State beyond saying that it was for the State to provide the machinery for a new trial. The provisions on which he sought to rely as he developed his argument were the right to the protection of the law which is guaranteed by section 3 and the right to a fair hearing in section 10(1) which is designed to secure that protection. The right to a fair hearing is one of three separate guarantees contained in section 10(1): Darmalingum v The State [2000] 1 WLR 2303, 2307H. The other two guarantees which are set out there, the right to a hearing within a reasonable time and to a hearing by an independent and impartial court established by law, are not in issue in this case.

14. Mr Dixon for the respondents did not dispute Mr Ollivry’s submission that the guarantee of a fair hearing extends to appellate proceedings as well as to the proceedings in the trial court. Their Lordships consider that he was right not to do so. If authority on this point is needed, it too is to be found in the decision of the Board in Darmalingum v The State, where it was held that section 10(1) extends to appellate proceedings. In that case the complaint was of a delay in the disposal of the appellant’s appeal. The guarantee which is given to “any person charged with a criminal offence” might be said, if taken literally, no longer to apply to a person who seeks to appeal against his conviction. But, as Lord Steyn explained at p 2309C-E, this is a technical interpretation which is inappropriate to the construction of a Bill of Rights in a Constitution such as that of Mauritius - a view which is strongly reinforced by the approach which has prevailed on the interpretation of article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms: see, for example, Mills v H M Advocate [2002] UKPC D2; [2004] 1AC 441 (PC).

15. Mr Ollivry’s argument was directed to what, as he submitted, were the limited powers of the Supreme Court as an appellate court under the District and Intermediate Courts (Criminal Jurisdiction) Act and to its powers in proceedings for constitutional relief under section 17 of the Constitution. But before they deal with that argument their Lordships wish to look more closely at the merits of the point that the appellant was seeking to raise in his appeal.

16. There is no doubt that the question whether the incident which Mrs Khedoo described could have taken place on a Saturday afternoon, as the appellant maintains was the import of her evidence, could and should have been raised at the trial. It is plain that evidence of the fact, if indeed it be the fact, that the Bank and the District Council’s office were both closed on the afternoon of 21 December 1991 as it was a Saturday could have been made available at that stage. In Luchmeeparsad v The State [1997] SCJ 19 the plaintiff sought constitutional redress in the Supreme Court against his conviction in the Intermediate Court for forgery on the ground that he had obtained fresh evidence which tended to establish his innocence. The Supreme Court recalled that in R D P de Boucherville v The State [1996] SCJ 237 it was held that the Supreme Court had power under section 17 of the Constitution to make an order directing a new trial on this ground “whenever the situation so requires”. But it rejected the plaintiff’s application for a new trial for the reason, among others, that he had failed to show that the evidence on which he sought to rely was not available at the trial or that reasonable diligence could not have made it so available.

17. The appellant sought to overcome this difficulty by inviting the appellate court to take judicial notice of the fact that the Bank and the offices of the District Council were not open on Saturday afternoons in Mauritius. The appellate court refused to entertain this argument, to which objection was taken by the respondents. This, it can be assumed, was because it was not mentioned in the appellant’s grounds of appeal. Even if it had been entertained, however, it would without doubt have been rejected for the reasons given by the Supreme Court in the passage from its judgment which their Lordships have quoted in para 11. Judicial notice could, of course, be taken of the fact that 21 December 1991 was a Saturday. But it was not open to the appellate court to deal with the appeal on the basis that it was within judicial knowledge that the Bank and the District Council’s offices were not open that afternoon. This was because, as the Supreme Court has explained, such a fact is neither notorious nor beyond serious dispute nor of common knowledge in Mauritius. In other words, this was a fact that would have had to be established by evidence.

18. Mr Ollivry did not seek to argue that the Supreme Court were in error when they held that it was not within judicial knowledge that the Bank and the offices of the District Council were not open on Saturday afternoons in Mauritius. Nor did he seek to argue that evidence to that effect was not available or could not with reasonable diligence have been made available at the appellant’s trial. He submitted instead that this test to the admission of additional evidence stood in the way of a fair trial, and that it was the duty of the Supreme Court under section 17 of the Constitution to hear the evidence. As he put it, the Supreme Court ought not to have decided that there should not be a new trial without having done so.

19. The test for the admission of fresh evidence which the Supreme Court laid down in Luchmeeparsad v The State [1997] SCJ 19 ought not to be applied as if it were a rule of law which has to be followed rigidly and without exception. Every person charged with a criminal offence is entitled under section 10(1) of the Constitution to a fair hearing. So the fundamental question for the Supreme Court must always be whether the proceedings that are called into question were or were not fair. But common sense suggests that some limits must be set on the admission of additional evidence after the trial is over as a ground for setting aside a conviction or ordering that that there must be new trial. If that were not so, it would be impossible to achieve finality. As Edmund Davies LJ said in R v Stafford (1968) 53 Cr App R 1, 3, legal process would become indefinitely prolonged were it the case that evidence produced at any time were to be generally admitted when verdicts were being reviewed.

20. The test which was applied in Luchmeeparsad appears to have been modelled on the decision of the Court of Appeal in R v Beresford (1971) 56 Cr App R 143, 149, where Sachs J said with regard to the question whether the appellate courts in England and Wales should entertain additional evidence under section 23((2)(b) of the Criminal Appeal Act 1968, which required the court to be satisfied that there was a reasonable explanation for the failure to adduce it:

“The court has in general to be satisfied that the evidence could not with reasonable diligence have been obtained for use at the trial.”

But it has come to be recognised in England and Wales, and also in Scotland where the test prescribed by section 106(3) of the Criminal Procedure (Scotland) Act 1995 was whether the evidence was available or could with reasonable diligence have been made available at the trial, that there is a risk of a miscarriage of justice if these tests are applied too rigidly. In para 56 of its report the Royal Commission on Criminal Justice (the Runciman Commission) (1993, Cm 2263) urged that that court should in general take a broad, rather than a narrow, approach to this issue: see also, for Scotland, para 2.44 of the Report of the Committee on Appeals Criteria and Miscarriages of Justice (1996, Cm 3245); Church v H M Advocate 1995 SLT 604. So the law in these jurisdictions has been modified. Section 23(2) (d) of the Criminal Appeal Act 1968 as amended by the Criminal Appeal Act 1995, sections 4(1) and 29 and Schedule 3, now provides that the Court of Appeal shall, in considering whether to receive any evidence, “have regard to” whether there is “a reasonable explanation for the failure to adduce the evidence” in the proceedings from which the appeal lies. A similar change to the statutory test was introduced in Scotland by section 17 of the Crime and Punishment (Scotland) Act 1997 in substitution for that laid down by section 106(3) of

the 1995 Act. The Supreme Court may wish to consider whether the test which was applied in Luchmeeparsad should be modified in the same way.

21. But Mr Ollivry did not seek to provide any explanation for the failure to lead evidence at the trial that the incident that Mrs Khedoo described could not have happened on the afternoon of 21 December 1991 as it was a Saturday. His criticism of the appellate court was that it was not willing to work on the assumption that what the appellant was asserting was true when they were examining the evidence. He made the same criticism of the Supreme Court when it was dealing with the application for constitutional relief. He said that if the magistrates had been aware of this additional fact it might have made all the difference, and that this was in itself a sufficient reason for ordering a new trial.

22. Their Lordships are not persuaded that all that needs to be said in support of an application for an order for a new trial is that the additional evidence which is relied on might have made a difference to the result if it had been before the trial court. It has, of course, to be shown that the additional evidence was relevant to the issue which was before the trial court and that, if steps had been taken to lead the evidence at that stage, it would have been admissible. These tests are satisfied in this case. But this is not the only requirement. The court also has to be satisfied that it is in the interests of justice, having regard to the constitutional right of the accused person to a fair hearing, that the additional evidence should be taken into account at the stage of an appeal. This was what the Supreme Court very properly had in mind when it referred to the fact that the evidence was procurable at the trial stage itself and that the question did not arise ex improviso. In their Lordships’ opinion Mr Ollivry was unable to show that the Supreme Court was not entitled to take this view. His argument that the appellant did not have a fair hearing of his appeal must be held to have failed on the facts.

23. But the matter does not end there. Mr Ollivry’s principal submission was that it would not have been open to the appellate court in any event to order a new trial because section 96(1) of the District and Intermediate Courts (Criminal Jurisdiction) Act, which sets out the powers of the Supreme Court on hearing an appeal, provides that no new evidence shall be admitted by that court on hearing an appeal. Section 96(5) provides that where, on an appeal under section 92, the Supreme Court is of opinion that a serious irregularity has occurred, it may declare the trial to be nullity and order a fresh trial. Mr Ollivry said that this power was not available to the court in its appellate capacity as no serious irregularity had occurred in this case. So it was the duty of the Supreme Court to hear the evidence in the proceedings for constitutional relief so that it could order a new trial in the exercise of its powers under section 17 of the Constitution.

24. Their Lordships cannot accept this argument. The right of appeal which is given to the convicted person by section 92 of the District and Intermediate Courts (Criminal Jurisdiction) Act is a right to a re-hearing of the case under section 96(1) of the Act in the light of the information, depositions and other evidence that were before the trial court. It is in that context that section 96(1) provides that no new evidence shall be admitted. This means that the appellate court must proceed upon the facts which were put in evidence before the trial court. But section 96 must be read together with section 82(1) of the Constitution, which provides that the Supreme Court may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court. It is not necessary for proceedings for constitutional relief to be brought under section 17 of the Constitution to enable the Supreme Court to exercise this power. It is available to be exercised in any proceedings which are brought before that court, including those under section 92 of the Act. Section 82(1) is in the widest terms. Among the orders that may be made under it is an order remitting the case to the inferior court so that, if it thinks this appropriate, it may take account of additional evidence.

25. The appellate court also has power under section 96(5), if it is of the opinion that a serious irregularity has occurred, to declare the trial to be nullity and order a fresh hearing. It was open to the appellant to contend that there had been a serious irregularity at his trial if, as he contends, he was convicted on the false assumption that the incident which Mrs Kedhoo described could have happened on a Saturday afternoon as she said it did. The constitutional guarantee of a fair hearing in section 10(1) requires that a generous construction should be given to the expression “serious irregularity”. But the appellate court was not asked by the appellant in his grounds of appeal to exercise this power, so the point was not tested in that court. Mr Ollivry sought to avoid this objection to his argument by asserting that no serious irregularity had occurred in this case. But it is hard to see why this was so if, as he asserts, the appellant was convicted of participating in a transaction with Mrs Khedoo that on her own account of it could not have happened.

26. For these reasons their Lordships reject Mr Ollivry’s argument that the legislation under which the appeal was brought before the appellate court is defective in the way he has suggested. The appellate court did not lack the powers to deal appropriately with the case if it had been one which required the hearing of additional evidence. So it cannot be said that the appellant was denied the right to a fair hearing before that court on this ground. Furthermore, section 17(2) provides that the Supreme Court may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, the constitutional guarantee of a fair hearing. It was not the lack of the necessary powers that led the Supreme Court to decide this case as it did. It was because the appellant was unable to show on the facts that he had not had a fair hearing of his appeal, and because the appellate court had sufficient powers in any event to provide him with an appropriate remedy. So there were no grounds for granting him constitutional relief against his conviction.

Conclusion

27. Their Lordships are of the opinion that the Supreme Court was entitled to uphold the respondents’ preliminary objection and set aside the plaint for constitutional redress. The appeal will be dismissed. The appellant must pay the respondents’ costs before their Lordships’ Board.

Gunnesingh Ashok Kailaysur v The State

Gunnesingh Ashok Kailaysur

Petitioner

v.

The State

Respondent

FROM

THE SUPREME COURT OF MAURITIUS

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

REASONS FOR DECISION OF THE LORDS OF

THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

UPON A PETITION FOR SPECIAL LEAVE TO APPEAL

OF THE 22nd April 2004, Delivered the 24th May 2004

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Present at the hearing:-

Lord Steyn

Lord Hope of Craighead

Dame Sian Elias

[Judgment delivered by Lord Steyn]

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1. On 22 April 2004 the Judicial Committee of the Privy Council had before it a petition for special leave to appeal from an order of the Supreme Court of Mauritius dated 21 July 2003 which increased a sentence of imprisonment passed by an Intermediate Court on 2 May 2002 from a total term of 18 months’ to a total term of three years’ imprisonment. Having heard counsel for the appellant and counsel for the respondent the Judicial Committee resolved to treat the hearing of the petition as the hearing of the appeal. At the same time the Judicial Committee ordered that the judgment of the Court of Appeal dated 21 July 2003 be set aside and that the sentence passed by the Intermediate Court on 2 May 2002 be reinstated.

2. The course adopted is not expressly provided for in the rules. But the Judicial Committee is the master of its own procedure. In appropriate cases the adoption of such a course advances the attainment of a correct and just disposal of the case without the need for a hearing on another date by a full Board. In the present case the parties through counsel consented to this course being taken. This procedure can be adopted even where there is no consent. On the other hand, it is a power that is best reserved for obvious and clear-cut cases.

3. On 2 May 2002, being the first day of a trial, the accused pleaded guilty in an Intermediate Court to nine counts of aggravated embezzlement. The accused was employed to collect money from customers of his employer. On nine occasions between November 1993 and May 1994 he embezzled some of the money. The total sum involved was 46,000 rupees (then worth about £1,700).

4. The accused was a married man. He had three children. He was the sole breadwinner of the family. He had responsibilities to a mother, who suffered from heart problems, and a handicapped sister.

5. The magistrate’s sentencing observations were as follows:

“I have taken into consideration all the circumstances of the case including the Accused’s plea of guilty, the amount of money embezzled, Rupees 46,000, the fact that none of it has, as yet, been refunded, the Accused’s previous convictions for offences involving dishonesty as well as his family commitments.

I find that a custodial sentence is warranted and I accordingly sentence Accused to undergo 18 months imprisonment with hard labour under each count.

Accused to pay Rupees 350 costs.”

It is common ground that the sentences were concurrent. The accused appealed against the total sentence.

6. The Supreme Court decided to increase the total sentence. Giving the judgment of the court Judge P. Lam Shang Leen (with whom Judge S.B. Domah agreed) observed:

“The record shows that the appellant did not make an outright confession when he gave his statement on January 9, 1998. On June 4, 2001, when the case was called before Court he prayed for time to retain counsel and on June 18, 2001, he pleaded not guilty to all the counts. It was only on the day of trial on May 2, 2002 that he changed his plea to one of guilty under the nine counts.

We have not been persuaded, having regard to the state of the evidence on record, that the learned magistrate did not consider all the relevant matters when considering the sentence to be passed. We are of the view that the learned magistrate in fact erred in not considering the fact that the appellant was already under a conditional discharge order when he committed the nine offences which had spread over a period of six months.

We consider the appellant in those circumstances should not benefit from the provisions of the Community Service Order Act 2002. If the learned magistrate had erred, it was on the leniency side the more so as can be gathered from the appellant’s statement to the police that the said Mr S. K. Mohur was sued by the appellant’s company before the Supreme Court for the said debt. We also note that the appellant even claimed that the figures on the receipts had been forged by somebody despite his admission that the handwritings on those receipts were his. The facts show a scheming mind which must be deterred.

In the light of the above, we are of the view that it is a fit case to increase the sentence passed by the trial court and we shall substitute the one passed by the trial court to three years penal servitude under each of the nine counts bearing in mind that the maximum sentence under section 332(2) of the Criminal Code is 10 years penal servitude.”

This judgment is now under appeal to the Privy Council.

7. Originally there were wide ranging grounds of appeal invoking, amongst other things, provisions of the Constitution. There was also a radical submission that the magistrate ought to have imposed a Community Service Order. The Board was unimpressed with these arguments. In any event, at the oral hearing of the petition counsel narrowed the focus to the ground that the Supreme Court ought not to have increased the sentence on appeal.

8. The Board is content to assume that under section 96(2) of the Intermediate and District Court (Criminal Jurisdiction Act) the Supreme Court has the power to increase a sentence on appeal, and that in principle as a matter of jurisdiction the power was available in the present case.

9. It is, however, a power which must be relatively sparingly exercised and then only in cases where the sentence imposed by the trial court was manifestly inadequate. And in all cases the reasons for exercising this drastic power must be explained.

10. The reasons given by the Supreme Court are less than compelling. It is true, as the Supreme Court observed, that the accused only pleaded guilty immediately before the trial was due to start. But the accused was still entitled to some not insubstantial credit for a plea which made a trial unnecessary. The Supreme Court did not make clear that it was allowing some credit. Secondly, the Supreme Court observed that “If the learned magistrate erred, it was on the leniency side”. This remark reveals a potential error in reasoning. It is not every sentence “on the leniency side” which requires to be increased. Thirdly, although the accused acted in a thoroughly dishonest way and was under a conditional discharge order when he committed the offences, the case was hardly at the top end of the spectrum and did not cry out for correction.

11. The Board approaches an appeal involving the severity of an increased sentence with great deference for the views of the Supreme Court. On the other hand, under section 3 of the Judicial Committee Act 1833, read with the Mauritius Appeals to Judicial Committee Order 1992, the Board has jurisdiction to entertain the appeal. Having concluded that the Supreme Court erred in a fundamental way in the exercise of its discretion, which resulted in an unjust doubling of the total sentence, the Board felt compelled to make the order set out above.

Bishops of Roman Catholic Diocèse of Port-Louis v Suttyhudeo Tengur

Bishop of Roman Catholic Diocese of Port Louis and Others

Appellants

v.

Suttyhudeo Tengur and Others

Respondents

FROM

THE SUPREME COURT OF MAURITIUS

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

REASONS FOR DECISION OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF THE

17th December 2003, Delivered the 3rd February 2004

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Present at the hearing:-

Lord Bingham of Cornhill

Lord Slynn of Hadley

Lord Lloyd of Berwick

Lord Steyn

Lord Hope of Craighead

[Delivered by Lord Bingham of Cornhill]

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1. At the conclusion of the hearing on 17 December 2003 their Lordships decided to dismiss the appeal and said that they would give their reasons later. This they now do.

2. This appeal concerns a group of some 12 secondary schools in Mauritius which have together been called “the Catholic colleges”. These are and always have been owned and administered by the appellants, between whom it is for present purposes unnecessary to differentiate. In allocating places in the first (or entry) year of the Catholic colleges the appellants have in recent years, by agreement with the Government of Mauritius, made 50 per cent of places available to the Government, which has allocated them to pupils according to merit as assessed in the examination for the Certificate of Primary Education (taken at the end of the primary phase of education). In allocating these places in the Catholic colleges, and in allocating all places in state schools owned and administered by itself, the Government has taken no account whatever of religious belief or affiliation. Thus, Roman Catholic pupils will compete with pupils of other faiths for the award of places within the Government 50 per cent of places in the Catholic colleges and the result will depend on their record in the examination. The remaining places have been allocated by the Catholic colleges themselves so as to achieve (making allowance for any Roman Catholic pupils among the Government allocation) a 50 per cent intake of Roman Catholic pupils overall. The greater the number of Roman Catholic pupils falling within the Government 50 per cent, the greater the number of non-Roman Catholic pupils who will be allotted places within the 50 per cent reserved by the Catholic colleges, and vice versa. Thus the first year intake will always include 50 per cent of pupils who are Roman Catholic.

3. These proceedings were brought by the first respondent, the father of an 11-year old Hindu girl, then approaching the end of her primary education and awaiting allocation to a secondary school. The father feared that the allocation system just described might prejudice his daughter’s admission to one of the Catholic colleges if she did not score highly enough in the examination to win a place within the Government’s 50 per cent allocation but did score highly enough to win a place within the Catholic colleges’ 50 per cent if those places were to be allotted on the basis of examination results alone and without regard to religious affiliation. He feared that she would lose a place in the Catholic colleges because of the preference for Roman Catholic pupils shown by the colleges, as just described, when allocating the 50 per cent of places reserved to them. In the proceedings he challenged the constitutionality of these arrangements made and operated by the Minister of Education and Scientific Research and the State of Mauritius (“the Government”) with the appellants. The father’s claim, to which the appellants were made co-defendants although no relief was sought against them, was upheld by the Supreme Court (Pillay CJ and Matadeen J) in a judgment given on 13 November 2002. Before the Supreme Court the Government denied knowledge of the preference for Roman Catholic pupils shown by the appellants when allocating the 50 per cent of places in the Catholic colleges reserved to them, but accepted that the arrangements, if as described above and known to it, were unconstitutional.

4. In this appeal the appellants challenge the Supreme Court’s conclusion that the arrangements described above were unconstitutional. The Government does not persist in its assertion of ignorance, described by the Supreme Court as “indefensible”, and supports the father’s complaint of unconstitutionality.

5. In modern democratic states, the provision of an efficient and high-quality educational system has come to be seen, for reasons too well known to require exposition, as one of the prime functions of government. But in many countries this was a function to which governments came relatively late. The earliest steps towards establishing schools and providing teachers were often taken by religious and charitable groups and bodies inspired, no doubt, by a belief in the virtue of education for its own sake but also by a desire to rear the young, at an impressionable age, within the tradition of a particular faith or system of belief. This was so in Britain, and it appears (from material before the Supreme Court and the Board which was not contradicted) that it was so in Mauritius. Thus by 1947 the Roman Catholic authorities had built and provided five secondary schools for girls and two for boys (in addition to schools provided by other denominations), while the state had provided two secondary schools for boys and none for girls. Between 1950 and 1971 the Roman Catholic authorities opened four more secondary schools for girls and four for boys; during the same period, it appears, the state opened two such schools, one each for girls and boys.

6. An ordinance of 1856 permitted the Government of Mauritius to support primary schools out of public funds, and further provision for primary schools, including non-Government primary schools, was made possible by Ordinance No 12 of 1944, which however provided, in section 15, that “All Government schools and all aided primary schools shall be open to pupils of any race or religion”. But the Roman Catholic authorities received no public subsidy for their secondary schools until 1947. The cost of running and administering the schools was met, and continued until 1977 to be met, very largely from fees paid by pupils attending the schools.

7. Note must be taken of the Education Act of 1957. Under this Act responsibility for controlling and directing the educational system of Mauritius was entrusted to a minister. Grants in aid to non-Government secondary schools were authorised. To qualify for a grant in aid such schools were required to be registered. Section 35 provided:

“State supported schools open to all

All Government schools and all schools in receipt of a regular grant in aid from public funds shall be open to pupils of any race or religion.”

This Act was matched by the Education Regulations 1957, which in regulation 52 provided:

“(1) A secondary school in Mauritius to qualify for registration as an approved secondary school shall comply with the following conditions –

(a) it shall not refuse admission to any pupil on the grounds of race or religion.”

Thus when, in 1968, Mauritius became independent and adopted the Constitution of that year, the Catholic colleges were self-financing. The practice was not, and never had been, to operate a religious closed shop: pupils who were not members of the Roman Catholic Church or subscribers to its beliefs were admitted, as they always had been. But had the Catholic colleges been publicly funded, section 35 and regulation 52(1)(a) would have restricted the freedom of the Roman Catholic authorities to give preference to Roman Catholic pupils when allocating places in the Catholic colleges.

8. The Constitution is, by virtue of section 2, the supreme law of Mauritius, and any other law, if inconsistent with the Constitution, is void to the extent of the inconsistency. This appeal turns on the provisions of Chapter II of the Constitution, entitled “Protection of Fundamental Rights and Freedoms of the Individual”. Section 3 of the Constitution provides:

“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 the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms –

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

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

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

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

Attention was drawn in particular to the freedom to establish schools protected by (b). Succeeding sections of the Constitution contain more detailed provisions relating to the rights specified in section 3. Section 11 protects freedom of conscience and belief, and subsection (3) provides:

“No religious community or denomination shall be prevented from making provision for the giving, by persons lawfully in Mauritius, of religious instruction to persons of that community or denomination in the course of any education provided by that community or denomination.”

Section 14, scarcely mentioned by the Supreme Court in its judgment, was the subject of considerable argument before the Board. It provides, so far as relevant for present purposes:

“14 Protection of freedom to establish schools

(1) No religious denomination and no religious, social, ethnic or cultural association or group shall be prevented from establishing and maintaining schools at its own expense.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) 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; or

(b) for regulating such schools in the interests of persons receiving instruction in them,

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.

(3) No person shall be prevented from sending to any such school a child of whom that person is parent or guardian by reason only that the school is not a school established or maintained by the Government.”

It was section 16 of the Constitution which the Supreme Court held to have been infringed. This provides:

“16 Protection from discrimination

(1) Subject to subsections (4), (5) and (7), no law shall make any provision that is discriminatory either of itself or in its effect.

(2) Subject to subsections (6), (7) and (8), no person shall be treated in a discriminatory manner by any person acting in the performance of any public function conferred by any law or otherwise in the performance of the functions of any public office or any public authority.

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

(4) Subsection (1) shall not apply to any law so far as that law makes provision –

(a) for the appropriation of revenues or other funds of Mauritius;

(b) with respect to persons who are not citizens of Mauritius; or

(c) for the application, in the case of persons of any such description as is mentioned in subsection (3) (or of persons connected with such persons), of the law with respect to adoption, marriage, divorce, burial, devolution of property on death or other like matters that is the personal law applicable to persons of that description.

(5) Nothing contained in any law shall be held to be inconsistent with or in contravention of subsection (1) to the extent that it makes provision with respect to standards or qualifications (not being standards or qualifications specifically relating to race, caste, place of origin, political opinions, colour, creed or sex) to be required of any person who is appointed to any office in the public service, any office in a disciplined force, any office in the service of a local authority or any office in a body corporate established directly by any law for public purposes.

(6) Subsection (2) shall not apply to anything which is expressly or by necessary implication authorised to be done by any such provision of law as is referred to in subsection (4) or (5).

(7) 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 whereby persons of any such description as is mentioned in subsection (3) may be subjected to any restriction on the rights and freedoms guaranteed by sections 9, 11, 12, 13, 14 and 15, being such a restriction as is authorised by section 9(2), 11(5), 12(2), 13(2), 14(2) or 15(3), as the case may be.

(8) Subsection (2) shall not affect any discretion relating to the institution, conduct or discontinuance of civil or criminal proceedings in any court that is vested in any person by or under this Constitution or any other law.”

9. In the course of 1976 the government of Mauritius resolved that secondary education should be free of expense to parents, whether the education was received in Government schools or in private schools independent of the Government, such as the Catholic colleges. With effect from 1 January 1977 fees hitherto paid by pupils’ parents were in effect paid by the Government by direct grant to the Catholic colleges. A new body, the Private Secondary Schools Authority, was thereafter established to exercise powers delegated by the minister in relation to non-Government schools such as the Catholic colleges and to pay the grants made by the Government. It appears that the Government, now paying the piper, endeavoured (through the PSSA) to call the tune. In April 1982 representations were made to the Prime Minister on behalf of the Catholic Colleges and two other denominational secondary schools, one Anglican, the other Hindu. It was felt that the denominational character of these schools was under threat. The admission of pupils was regarded as an internal matter for the schools, within the discretion of the management. The representations said:

“We also agree to continue to collaborate to the fullest degree with the Ministry of Education as regards admission of pupils to Form I at the beginning of each year by putting at the Ministry’s disposal the majority of vacancies available but, to preserve our full independence, we want it to be understood that we are on the giving end. The Ministry knows that we have fully collaborated with it on this particularly delicate issue.”

Stress was laid on the primacy of religious and moral education given by the schools, and complaint was made of what was seen as an “attack on the very existence and specificity of our schools”.

10. Relations between the Government and the authorities responsible for denominational schools became such that the National Assembly established a Select Committee to enquire into the matter. To this the appellants made a long and powerfully-argued written submission, culminating in a recommendation that,

“of all available Form I seats in each Catholic college, 50% should be allocated to pupils on the usual list of the Ministry, and 50% should be allocated by Catholic colleges, according to their own criteria, in collaboration with [the Association of the Directors of the Catholic Denominational Schools].”

A majority of the Select Committee accepted this recommendation in paragraph 129 of its report:

“129. In consistency with the philosophy which Your Committee has adopted throughout, namely, to promote a fruitful working partnership between the Union and the Government in the provision of secondary education and also with the view to striking a fair and equitable balance between the parties, Your Committee has decided to accede to the request of the Union and will recommend that it shall henceforth be allowed to recruit for each Form I of its schools a number of students according to the criteria laid down by it as would represent 50 per cent of the number of seats available for Form I students. The number of students that this percentage will represent shall be inclusive of those Catholic students that would have been admitted to any particular school of the Union by reason of their ranking on the computer list.”

The report was never adopted by the National Assembly, nor was legislative effect given to its recommendation. But further changes were made in 2002, partly because of changes in the formal procedure of assessing CPE candidates, partly because of the establishment of Form VI Colleges. The appellants co-operated with these changes on terms recorded in a Memorandum of Understanding with the Ministry dated 11 June 2002, after these proceedings had been begun. It was agreed as a fundamental principle that:

“(4) The present system of admission in Catholic Colleges, that is half of the seats for admission purposes being managed by the Ministry and half managed by the Bureau of Catholic Education and the Colleges concerned will continue to operate and will be applied to all the colleges referred to in this MoU; in both cases criteria for admissions will be published and made known to parents, pupils and public. Such a system will continue to operate until such time that a better and mutually agreed upon formula is found.”

General conditions were also agreed, including the following:

“(1) All the Catholic Colleges referred to in this MoU will remain private aided institutions and will continue to exercise their educational mission in conformity with the philosophy of Catholic Education as defined by the Diocese of Port Louis, the Loreto Institute of the Blessed Virgin Mary and the Filles de Marie Order, accountable to appropriate state regulatory authority within the provisions of the Education Act and the PSSA Act.

(3) Grants as necessary for the normal recurrent operating costs of all Catholic Colleges including the autonomous units, will be provided in accordance with Government established policy and the implementation of this MoU will in no case entail a reduction in grant presently payable.”

Thus matters stood when the case came before the Supreme Court.

Construction of the Constitution

11. It is convenient to begin by considering section 3 of the Constitution. The appellants rely on the right to establish schools conferred by the section. That is a general right, which is not cut down by the more detailed language of section 14(1). They contend, and this is agreed, that the words “at its own expense” mean, in effect, “without expense to the Government”, but they contend that the words are intended merely to make clear that the right to establish a denominational school does not carry with it a right to receive support from public funds for any school so established.

12. The Board held in Société United Docks v Government of Mauritius [1985] AC 585, 599, that section 3 is an enacting section, not a mere preamble or introduction. The more detailed later sections (the issue in that case turned on section 8) did not curtail the ambit of section 3, and the Board held that:

“A Constitution concerned to protect the fundamental rights and freedoms of the individual should not be narrowly construed in a manner which produces anomalies and inexplicable inconsistencies.”

These principles were acknowledged by the Board in Matadeen v Pointu [1999] 1 AC 98, 117-118. But the provisions of Chapter II must, so far as possible, be read as a whole: thus, although section 3(b) makes reference to establishing but not to maintaining schools, it is plain (as is agreed by the parties) that the freedom to establish schools protected by section 3(b) must include the freedom to maintain schools which have been established, as is made explicit in section 14(1). In the present instance there is no anomaly or inconsistency. The words “at its own expense” cannot be discarded as surplusage. Sections 3(b) and 14(1), read together, make plain that denominational groups are entitled, without discrimination between one group and another, to establish and maintain schools, but it is a limited right, protected if but only if the schools are maintained and established without expense to the state. It is noteworthy that on more than one occasion the Supreme Court has adverted to the implications of the words “at their own expense”. In Government Teachers Union v Roman Catholic Education Authority [1987] MR 88, 94 Lallah ASPJ said:

“Further our State being secular in character, even where the Constitution in section 14(1) confers a fundamental right on religious denominations or religious, social, ethnic or cultural associations or groups to establish and maintain schools at their own expense, the responsibility of regulating such schools is reserved to the State, by section 14(2), in the interests of students to an extent reasonably justifiable in a democratic society.”

In Roman Catholic Diocese of Port Louis v Minister of Education [1991] MR 176, 179-180, the court said:

“Section 14 only formally protects the right of certain classes of persons in the religious, cultural and social fields to establish schools at their own expense. We are not in a situation where the right to establish denominational, or minority group, schools is guaranteed simpliciter, a situation which has resulted in the formulation, in certain foreign texts and decisions, of the principle that the State then has a constitutional duty to provide funds, where necessary, to enable that right to be exercised, and to do so with no unnecessary strings attached.”

13. So interpreted, sections 3 and 14(1) are not in conflict with prevailing rules of international law. Construing article 2 of the First Protocol to the European Convention on Human Rights, the European Court of Human Rights said in the Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, 283, paragraph 9:

“Thus, persons subject to the jurisdiction of a Contracting State cannot draw from Article 2 of the Protocol the right to obtain from the public authorities the creation of a particular kind of educational establishment …”

See also W and K L v Sweden (1985) 45 DR 143.

14. In the present case it is plain that while the Catholic colleges were established by the appellants without expense to the state they had, by the time of the father’s challenge, ceased to be so maintained. They were indeed maintained very largely, if not wholly, at the expense of the state. It follows that the appellants were no longer exercising a right protected by sections 3 and 14, and the Supreme Court were justified in regarding these sections as essentially irrelevant to the issue before it.

15. The thrust of the father’s case under section 16 is:

(1) that the effect of the admission system to the Catholic colleges operated by the appellants in relation to the 50 per cent of places reserved to them was to differentiate between Roman Catholic and non-Roman Catholic pupils;

(2) that such differentiation meant that different treatment was afforded to different persons attributable wholly or mainly to their respective descriptions by creed whereby persons of one such description (non-Roman Catholics) were subjected to disabilities or restrictions to which persons of another such description (Roman Catholics) were not made subject, or persons of one such description (Roman Catholics) were accorded privileges or advantages that were not accorded to persons of another such description (non-Roman Catholics);

(3) that no justification of such different treatment was shown; and

(4) that the Government bore responsibility for this admission system inasmuch as, being aware of the system, it sanctioned or acquiesced in it and made public money available for its implementation.

The father’s complaint of unconstitutionality is not directed, at any rate primarily, against the appellants, and he does not contend that section 16(1) has been violated.

16. The father’s first contention is made out. The giving of preference to one group of applicants necessarily works to the disadvantage of any group of applicants to whom preference is not given. In relation to the reserved places, the appellants’ avowed intention is to maintain the religious and moral character and ethos of the Catholic colleges by recruiting enough Roman Catholic pupils to leaven the whole loaf. Understandable and even admirable as this intention may be, it involves differentiating between one pupil and other.

17. But differentiation without more is not enough to enable the father to succeed. As was said by Rault J in Police v Rose [1976] MR 79, 81:

“To differentiate is not necessarily to discriminate. As Lysias pointed out more than 2,000 years ago, true justice does not give the same to all but to each his due: it consists not only in treating like things as like, but unlike things as unlike. Equality before the law requires that persons should be uniformly treated, unless there is some valid reason to treat them differently. In Kedar Nath v State of West Bengal AIR 1953 SC 404 the Supreme Court of India held that it is permissible to apply different measures to different classes of persons if the classification is based on an intelligible principle having a reasonable relation to the object which the Legislature seeks to attain.”

In Jaulim v Director of Public Prosecutions and the Honourable the Attorney-General [1976] MR 96, 100, the Supreme Court ruled to similar effect:

“There is inherent in the term discriminate and its derivatives as used in the Constitution a notion of bias and hardship which is not present in every differentiation and classification … The difference of treatment will be justified when it pursues a legitimate aim and there exists at the same time a reasonable relationship of proportionality between the means employed and the aim sought to be realised.”

The approach of the Supreme Court in Rose was expressly endorsed by the Board in Matadeen v Pointu [1999] 1 AC 98 at pages 109, 117. It reflects the approach taken in applying the International Covenant on Civil and Political Rights: see The International Covenant on Civil and Political Rights and United Kingdom Law, ed Harris and Joseph, 1995, pp 585-586.

18. At first blush the differentiation of which the father complains appears to be discriminatory, since it is based on creed, which is one of the grounds proscribed by section 16(2) and (3) and it is not protected by section 16(4). Since the Catholic colleges now receive a regular grant in aid from public funds, section 35 of the Education Act also requires that they be open to pupils of any religion: while they have always admitted non-Roman Catholic pupils, the section must require that they be equally open to pupils of any religion as was made clear by regulation 52(1)(a) of the 1957 Regulations, which forbade refusal of admission to any pupil on the grounds of religion. Such refusal would inevitably be the result in the case of any non-Roman Catholic applicant to the Catholic colleges who would qualify for admission on the basis of his or her CPE grading but is refused admission to accommodate the Catholic colleges’ policy of filling 50 per cent of places with Roman Catholic pupils.

19. Where apparently discriminatory treatment is shown, it is for the alleged discriminator to justify it as having a legitimate aim and as having a reasonable relationship of proportionality between the means employed and the aim sought to be realised: see Rose and Jaulim cited above; Human Rights Law and Practice, ed Lester of Herne Hill and Pannick, 1999, p 230, para 4.14.15; Grosz, Beatson and Duffy, Human Rights: The 1998 Act and the European Convention, 2000, p 325, para C14.04; Jacobs and White, The European Convention on Human Rights, 2nd edn, 1996, p 291; Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, 284, para 10; Canea Catholic Church v Greece (1997) 27 EHRR, 521, 536-537, paras 58-65; Susanna Brunnhofer v Bank der österreichischen Postsparkasse AG [2001] ECR 1-4961, paragraphs 60-61; R (Carson) v Secretary of State for Work and Pensions [2003] 3 All ER 577, 592, paragraph 34. In the present case, the Supreme Court invited argument on justification of the apparently discriminatory admissions policy but recorded that no argument was forthcoming. It is understandable that the appellants, as co-defendants in the proceedings, were discomfited when the Government, on whom it was no doubt relying to justify the policy, conceded the unconstitutionality of the policy if it was found to have known of it. But no request was made for an adjournment to adduce further evidence; the Board has no more evidence than was before the Supreme Court; and that court, with all its knowledge of the society of Mauritius, found no justification.

20. In reaching its conclusion on justification the Supreme Court paid close attention not only to the Constitution but also to the UNESCO Convention against Discrimination in Education (1960) and the UN International Covenant on Economic, Social and Cultural Rights (1966). It is unnecessary to review the detailed provisions of those instruments, or others referred to in argument, since in the opinion of the Board the Constitution is clear and unambiguous and must be given effect as the supreme law of Mauritius. It is, as the Board recognised in Matadeen v Pointu [1999] 1 AC 98, 114, a well recognised canon of construction that domestic legislation, including the Constitution, should if possible be construed so as to conform to international instruments to which the state is party. But here the interpretation of the Constitution is clear, and although some of the international instruments cited permit, in strictly defined circumstances, a measure of differentiation on religious grounds, they certainly cannot be said to require it, and the Constitution violates no internationally accepted principle by precluding discrimination on grounds of religion to the extent it does.

21. If, as originally established and maintained, the Catholic colleges were still entirely self-financing, the appellants’ admission policy would not attract the operation of section 16(2) since although some potential pupils would still be treated in a discriminatory manner such treatment would not be “by any person acting in the performance of any public function conferred by any law” or “otherwise in the performance of the functions of any public office or any public authority”. The appellants would be exercising their right under sections 3(b) and 14(1) to maintain denominational schools at their own expense, and they would be free in running private schools, independent of the state, to give preference to Roman Catholic pupils. As section 16(2) makes clear, it is discrimination in the public domain, through the involvement of the state, which brings the prohibition on discriminatory treatment into play. Thus the father’s fourth contention summarised in paragraph 15 above is crucial. In the Board’s opinion, that contention is made good. If a Government secondary school were to follow an admissions policy such as the appellants’, it would clearly fall foul of section 16(2). That result is not avoided where the minister, whose powers are delegated to the PSSA, channels public funds to the Catholic colleges in knowledge that such an admissions policy is followed. Such a conclusion would be to substitute form for substance.

22. In the course of his excellent argument for the appellants, Mr Douglas QC placed strong reliance on two decisions of the Supreme Court of India, St Stephen's College v University of Delhi AIR 1992 SC 1630 and TMA Pai Foundation v State of Karnataka AIR 2003 SC 355. Any decision of that court must always command respect, and these decisions lend support to an admissions policy such as the appellants have followed. But the decisions were based on the specific provisions of the Constitution of India which differs from that of Mauritius, and these authorities cannot dislodge what the Board regards as a clear conclusion.

23. As announced at the conclusion of oral argument, the appeal must be dismissed. There will be no order as to costs, save that the appellants must pay the father’s costs before the Board.