Bishop of Roman Catholic Diocese of
Appellants
v.
Respondents
FROM
THE SUPREME COURT OF
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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:-
[Delivered by
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1. At the conclusion of the hearing on
2. This appeal concerns a group of some 12 secondary schools in
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 (
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
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
“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
(a) it shall not refuse admission to any pupil on the grounds of race or religion.”
Thus when, in 1968,
8. The Constitution is, by virtue of section 2, the supreme law of
“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
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
(b) with respect to persons who are not citizens of
(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
“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
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
“(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]
“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
“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
See also W and K L v
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
“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
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
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
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,
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.
