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

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

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]

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

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.

Bike World Ltd v The Comptroller of Customs

Bike World Limited

Appellant

v.

(1) The Comptroller of Customs and

(2) The State of Mauritius

Respondent

FROM

THE COURT OF CIVIL APPEAL OF MAURITIUS

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

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 6th October 2003

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

Present at the hearing:-

Lord Bingham of Cornhill

Lord Slynn of Hadley

Lord Hope of Craighead

Lord Hobhouse of Woodborough

Sir Philip Otton

[Delivered by Lord Hope of Craighead]

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

1. This is an appeal from a judgment of the Court of Civil Appeal of Mauritius (Pillay CJ, Balgobin J) on 18 September 2001 dismissing an appeal against a judgment of the Supreme Court (Matadeen J) which was delivered on 6 October 2000. The judge had upheld the respondents’ plea in limine litis that there was probable cause for the detention of goods which the appellants had imported into Mauritius within the meaning of section 150 of the Customs Act 1988. Having done so, he dismissed the appellants’ claim against the respondents for damages.

The facts

2. The appellants carry on business as importers, distributors and retailers of general goods. In or about November 1995 they imported into Mauritius two containers of goods from Taiwan. The goods were placed by the respondents into a warehouse. One container contained a consignment of baby walkers. The other contained a consignment of baby strollers.

3. Section 25 of the Customs Act 1988 provides that goods shall be subject to the control of Customs, in the case of goods imported, from the time of import until removal for home consumption, or until the time of export, whichever shall first happen. Section 34 of the Act provides that the person entering any goods, whether for himself or on behalf of any importer or exporter, shall deliver to the Comptroller of Customs a bill of entry in respect of those goods in the prescribed form. Rule 4(a) of the Customs Tariff (Classification of Goods) Regulations 1988 provides that the classification of goods for the purposes of the Act shall be determined in accordance with the International Convention on the Harmonized Commodity Description and Coding System and any relevant publications relating to it of the Customs Co-operation Council, which is located in Brussels. Among the particulars to be entered on the prescribed form is the code according to the Nomenclature in the International Convention, known as the H S Code, under which the goods are classified in Mauritius for customs tariff purposes.

4. The appellants’ director, Mr Muktar Mauthoor, submitted a single bill of entry dated 4 December 1995 for the two consignments. In a space on the prescribed form which was headed “Marks & Numbers” he identified the consignments by their container numbers. In a space which was headed “Description of goods” he entered the words “Baby Walker and Stroller”. In a space which was headed “H S Code” he entered the number 871500. This is the H S Code which is listed against the description “baby carriages and parts thereof” in chapter 87 of the First Schedule to the Nomenclature. That chapter is headed “Vehicles other than railway or tramway rolling-stock and parts and accessories thereof”.

5. The first respondent was of the opinion that, while H S Code 871500 was the appropriate code for baby strollers, the correct code for baby walkers was 940180. This is the H S Code which is entered against the description “Other seats, with metal frames” in chapter 94 of the First Schedule. That chapter deals with furniture and other miscellaneous manufactured articles. The items listed in chapter 94 attract a substantially higher rate of customs duty than those which are listed in chapter 84. That this was the position of the Customs on this matter was already known to Mr Mauthoor, as he had sought clarification as to the correct tariff for baby walkers about three years previously.

6. On 24 March 1992, in his capacity as a director of Windsor Cycle Mart Ltd, Mr Mauthoor wrote to the Customs Co-operation Council in Brussels seeking their advice on the correct tariff classification for baby walkers. He stated that for his latest consignment of baby walkers he had been informed that the tariff classification was no longer 871501 but was now 940180, and that he had had to pay additional duties as a result. He also said that the officials in the customs department themselves differed on the classification of these articles. On 28 April 1992 the first respondent wrote to him stating, with reference to his letter of 24 March 1992, that the department would like to inform him that the Customs Co-operation Council’s view on the classification of baby walkers was that they were classified as 940180. There is no evidence that Mr Mauthoor received a direct reply to his letter from the Customs Co-operation Council or of the correspondence, if any, that the first respondent entered into with the Council on this issue.

7. Mr Mauthoor continued to believe that baby walkers were correctly classified as 871500, and it is common ground that goods of this description are not expressly mentioned anywhere in the relevant schedule. However, when the bill of entry which he had prepared was scrutinised by the Customs officers, it was rejected by them on the ground that the wrong classification had been entered on it for the baby walkers. Mr Mauthoor immediately tendered an amended bill of entry showing that the H S Code for the baby walkers was 940180, but the officers refused to accept it. They refused to release the goods to him, and they continued to detain both consignments in the warehouse.

8. The first respondent was of the opinion that, in view of this exchange of correspondence, Mr Mauthoor had knowingly mis-stated the H S Code on the bill of entry which he completed for the consignment of baby walkers on 4 December 1995. He informed the appellants by letter dated 19 December 1995 that the baby walkers had been incorrectly declared by them on the bill of entry under H S Code 871500. He said that they had committed an offence in breach of section 158(3) of the Act because of the incorrect classification. Paragraph (b) of section 158(3) provides that every person who, for any purposes under that Act, makes any entry which is false in any particular shall commit an offence. There is no evidence that the appellants replied to that letter. By letter dated 20 January 1996 the first respondent informed the appellants that they could compound the offence by paying the customs duty and other taxes amounting to Rs 298,741 on the baby walkers, a further amount of Rs 398 for the customs duty and taxes due on various other items which had not been declared on the bill of entry and an amount of Rs 486,216 as penalty.

9. Mr Mauthoor replied to this proposal by letter dated 30 January 1996. He said that he was unable to accept compounding on the terms proposed, but that he was at the disposal of the Customs department for an amicable settlement if need be. In a further letter dated 22 February 1996 he continued to maintain that the baby walkers should be classified as 871500. He pointed out that item 940180 referred to seats with metal frames, whereas the baby walkers which he was seeking to import were equipped with plastic frames and with wheels. He said that their purpose was different from the item referred to under H S Code 940180. The first respondent declined to accept this argument and refused to release any part of the consignment from the warehouse. On 30 October 1996, without prior notice to the appellants, one of the two containers was sold by the Mauritius Marine Authority.

10. The appellants then brought proceedings against the respondents in the Supreme Court in which they sought an order for the release to them of the consignment of baby walkers and strollers which the first respondent had detained. They also sought payment by the respondents of the sum of Rs 4,726,833 for the value of the property seized, loss of profit, damages for the adverse effect on importation and loss of consequential profit and moral damages. The respondents lodged a statement of defence denying liability.

11. The case came to trial before Matadeen J on 18 July 2000. At the outset of the hearing the respondents sought and were granted leave to amend their statement of defence by adding a plea in limine litis claiming immunity from the claims made in the action under section 150 of the Customs Act 1988. Section 150 of that Act provides:

“Notwithstanding the Public Officers Protection Act, where any action has been entered before a court on account of the seizure of any goods, aircraft or ship, or pursuant to any act done by any officer in the execution of his duty under any customs laws and it appears to the court that there was probable cause for such seizure or act, the court shall so declare and thereafter the person who effected the seizure or performed the act shall be immune from all proceedings, whether civil or criminal, on account of such seizure or act.”

12. Matadeen J delivered his judgment on 6 October 2000. He summarised the evidence which had been led for the respondents to substantiate their contention that the first respondent had acted on probable cause. Their witness, the Deputy Comptroller, had referred to the previous exchange of correspondence with Mr Mauthoor which, he said, showed that Mr Mauthoor was fully aware of the correct classification of baby walkers when the appellants submitted their bill of entry with the wrong tariff. He conceded that the customs authorities at the airport might have accepted a bill of entry declaring similar goods under H S Code 871500. But he said that these documents were normally scrutinised by his department’s internal auditors and the importer made to pay the appropriate duty. The judge noted that no evidence had been led on the appellants’ behalf. But he said that the evidence on record showed that Mr Mauthoor was fully aware of the correct classification of the goods since 1993 but deliberately chose to declare them under a tariff heading which would attract a lesser amount of duty. He said that he thereby committed an offence under the Customs Act.

13. Matadeen J also rejected the appellants’ argument that section 150 of the Customs Act was unconstitutional. He said that the short answer to that submission was to be found in section 8(4)(ii) of the Constitution, which provides that nothing done under the authority of any law shall be held to be inconsistent with or in contravention of the constitutional right to be protected from the deprivation of property to the extent that the law in question makes provision for the taking of possession of property by way of forfeiture in consequence of a breach of the law. He concluded his judgment with these words:

“As the evidence shows that the first defendant has acted in good faith and in the absence of any evidence indicating that he was motivated by malice, I find that there was probable cause for the detention of the plaintiff’s goods. Consequently, I uphold the plea in limine litis and set aside the plaintiff’s claim, with costs.”

14. The appellants contended in their appeal to the Court of Civil Appeal that the judge was wrong to uphold the plea in limine as the seizure of their goods was unreasonable, that their constitutional right to the protection of their property under section 8(1) of the Constitution had been violated and that section 150 of the 1988 Act was ultra vires as it violated their constitutional rights to the protection of the law and to the protection of their property. The Court of Appeal observed that Mr Mauthoor had never been prosecuted under section 158 of the Customs Act and that the goods had not been seized under the provision of the Act which provides that goods may be seized. But they accepted the finding by the trial judge that he was fully aware of the correct classification of the goods since 1993 but deliberately chose to declare them under a tariff heading which would attract a lesser amount of duty. They held that there was no substance in the ground of appeal which was directed to the upholding of the plea in limine. They said that the appellants’ claim was about the detention of the goods, not their seizure and disposal, and that the provisions of the Constitution on which the appellants relied did not apply in this case. They did not in any event agree with Matadeen J that section 8(4)(ii) of the Constitution was in point in this case. In their opinion the relevant derogation from the right not to be deprived of one’s property was in section 8(4)(vii), which permits the taking of property for so long as may be necessary for the purposes of any investigation, trial or inquiry. This was because there was undisputed evidence that the first respondent had detained the goods in the course of an inquiry.

The classification under H S Code of baby walkers

15. As has already been mentioned, goods described as baby walkers are not expressly mentioned anywhere in the classification of goods in the Nomenclature. Part I of Schedule I sets out the general rules for the interpretation of the harmonized system, and in particular the principles by which the classification of goods in the Nomenclature are to be governed. Rule 4 states that goods which cannot be classified in accordance with the rules shall be classified under the heading appropriate to the goods to which they are most akin. Item 940180 in the HS Code refers to seats with metal frames. Baby walkers are, of course, provided with seats. But Mr Mauthoor pointed out in his letter to the first respondent dated 22 February 1996 that the baby walkers which he was seeking to import were equipped with plastic frames and with wheels. It is well known that baby walkers would be unable to perform their function without wheels. They are designed for use by babies who have not yet learned to walk by themselves. It is the wheels that enable them to move from place to place from a seated position within the frame of the baby walker. It is not difficult to understand why Mr Mauthoor found it hard to accept that these items were properly classified as seats in view of the fact that they were designed to enable babies to move about as if they were in a vehicle.

16. Item 871500 refers to baby carriages and parts thereof. There is no dispute that baby strollers fall within the description which is given to goods falling under this heading of the Schedule. Baby walkers differ from baby strollers, which are designed to enable people to push babies from place to place. Baby strollers are, in effect, a kind of baby carriage. It is not self-evident that baby walkers are akin to baby carriages. But at first sight Mr Mauthoor’s contention that these are the goods to which baby walkers are “most akin” was not unreasonable.

17. As it happens, Mr Mauthoor was not alone in wishing to challenge the position which the first respondent had adopted in this matter. In Toys R Us Ltd v Comptroller of Customs, Cause No 28/98/CUS, the Tax Appeal Tribunal were asked to determine whether the first respondent was right to have classified baby walkers under H S Code 940180 as opposed to H S Code 871500 as the appellant in that case claimed. In their determination which was issued on 23 September 1999 the Tribunal observed that baby walkers are not baby carriages or prams, as their primary purpose was not for carrying babies, but that they do carry babies along in their endeavours to maintain an equilibrium on their unstable little legs during their first steps and prevent them from falling and injuring themselves. They said that it was obvious to their minds that the classification under H S Code 871500 was more appropriate than that under H S Code 940180 as it more precisely described the goods under reference in the circumstances. They allowed the appeal and ordered the excess duty to be refunded to the appellant.

18. The first respondent appealed against that decision to the Supreme Court. In Comptroller of Customs v Toys R Us Ltd, 2000 SCJ 330 the Supreme Court (Narayen and Seetulsingh, JJ) dismissed the appeal. The judgment was delivered by Seeltulsingh J on 10 November 2000. He expressed his view of the case in these terms:

“By no stretch of the imagination can baby walkers be assimilated to furniture and seats. A baby stands and attempts to walk in a baby walker. The latter is not meant to be a seat where parents could leave a baby for long hours. The piece of cloth or other material within the frame of the baby walker as well as the frame itself are intended to help a baby to maintain his balance while learning to walk. The cloth is not supposed to be a seat bottom. In short a baby walker is for a baby to walk in, not to sit on.”

In a final remark he said that when in doubt the Comptroller of Customs seeks the views of the Customs Co-operation Council in Brussels, and that it seemed that this had not been done in that case.

19. The decision of the Tax Appeal Tribunal had already been issued by the time the present case came to trial before Matadeen J on 18 July 2000. He does not mention that decision in his judgment, and it appears that his attention was not drawn to it by either party. The decision of the Supreme Court in Comptroller of Customs v Toys R Us Ltd was delivered within five weeks of the date when Matadeen J delivered his judgment. The Court of Civil Appeal do not mention that decision in their judgment, but Mr Toorbuth said that they were referred to it in the course of the argument. It was not, of course, directed to the issues which that court had to decide in this case, at the heart of which are the questions whether the first respondent was entitled to claim immunity under section 150 of the Customs Act 1988 and whether the detention of the appellants’ goods was in contravention of section 8(1) of the Constitution. But the decision forms an important part of the background against which Mr Mauthoor’s actions are to be judged. He stuck to his guns as to the way baby walkers should be classified, and in the event he has been proved right.

The plea in limine

20. The question to which their Lordships now turn is whether the first respondent is entitled to claim immunity from the appellants’ claim under section 150 of the 1988 Act. Counsel for the appellants said that the plea in limine litis, which was introduced into the case by an amendment at the start of the trial, had taken them by surprise and Mr Ramdhun submitted that they ought to have been given time to prepare their evidence in reply to it. But the record shows that no request for more time was made to the trial judge, and that when he was given the opportunity Mr Toorbuth said that he was not proposing to adduce any evidence. The case must be approached therefore on the basis of the evidence which was led by the first respondent. That evidence was accepted by the trial judge, and there was no contrary evidence.

21. Section 150 of the 1988 Act provides protection to an officer who seizes any goods or performs any act in the execution of his duty under any customs laws. The protection is available if it appears to the court that there was probable cause for such seizure or act. If the court is of that opinion, it shall so declare, and the person who effected the seizure or performed the act shall be immune from all proceedings on account of it. This analysis of the section shows that, if it is to apply, two things must be established by the evidence. First, the officer must have effected a “seizure” or have done an “act” in the execution of his duty under any customs laws. Secondly, he must have had “probable cause” for the seizure or the act, as the case may be.

22. As to the first point, section 151(1)(a) of the Act provides that an officer (who is defined in section 2 of the Act as including any person employed in the service of Customs) may seize goods imported into Mauritius in relation to which an offence under the customs laws is reasonably suspected to have been committed by any person. Section 143 of the Act provides that, where any goods have been seized under the Act, the Comptroller shall serve notice in writing of the seizure and the cause thereof to the owner of the goods or his agent. Various consequences provided for by the Act may then follow. In this case however no notice was served on the appellants that their goods had been seized. When he was asked whether such a notice had been issued the first respondent’s witness replied: “No, my Lord, because we never seized. But we detained the goods”. The finding by the trial judge was that the first respondent had caused the goods to be detained.

23. The question then is whether it was shown by the evidence that the goods were detained by an officer in the execution of his duty under any customs laws. Mr Davison for the respondents accepted that the Act does not confer an express power on an officer to detain. He submitted that a power to detain was implied by section 17 of the Act. That section applies where information has been received by the Comptroller or the Comptroller has reason to believe inter alia that goods have been under-declared, unlawfully entered or illegally dealt with. It provides that in that event the importer shall, immediately on being requested to do so by the Comptroller, produce and hand over to the Comptroller all books, invoices and documents relating to those goods. Their Lordships are prepared to accept that the section implies that an officer may detain the goods upon their arrival in Mauritius so that he can consider whether they have been under-declared, unlawfully entered or illegally dealt with. But the longer the period of detention is the more difficult it is to regard this as an act that can be performed without express statutory authority.

24. Their Lordships do not need to decide the issue as to whether section 17 of the Act provided statutory authority for the detention which occurred in this case as there is no evidence that, following his initial examination of them and his rejection of the bill of entry which accompanied them, the first respondent was continuing to detain the goods for any of the purposes set out in section 17. The only reason which he gave for continuing to detain the goods was that the appellants had committed an offence under section 158 of the Customs Act. But the only act which the officer is authorised by the Act to do where he reasonably suspects that an offence has been committed is to seize the goods, and it is accepted that there was no seizure in this case. The Court of Appeal were careful also not to proceed on the basis that the appellants had committed an offence. They said that there was undisputed evidence that the first respondent detained the goods in the course of an inquiry. That is so. But any such inquiry was over and done with by 20 January 1996 when the first respondent wrote to the appellants setting out the terms which he proposed for compounding the offence which he maintained had been committed.

25. Then there is the question whether it was open to the court to hold that there was “probable cause” for the detention. These words are very familiar. They indicate that the court must apply an objective test to the evidence. It is not sufficient that the officer thought that he had probable cause. The court must be satisfied that there was in fact probable cause for the act which he did. The first respondent’s case is that the officer who detained the goods had reason to suspect that the appellants had committed an offence under section 158(3)(b) of the Act. This was because, as he stated in his letter to the appellants dated 19 December 1995, they had incorrectly classified the baby walkers under tariff item 871500. Section 158(3)(b) provides that every person who, for any purpose under the Act, makes any entry which is false in any particular shall commit an offence.

26. Mr Davison said that there was evidence before the trial judge that the appellants had deliberately and knowingly mis-stated the tariff for the baby walkers on the bill of entry. There was evidence that the first respondent was of the view that the appellants had committed an offence under section 158(3)(b), and the trial judge went so far as to say that they had breached the Customs Act. But, as the Court of Appeal observed, the appellants were never charged with committing that or any other offence under the Act. Moreover an examination of the bill of entry shows that the contents of the containers were correctly described by Mr Mauthoor. He made no secret of the fact that one of them contained a consignment of baby walkers or of the fact that he was applying the same tariff entry to that consignment as he was to the consignment of baby strollers. He was not bound to accept without question the opinion of the officers as to how baby walkers were to be classified.

27. But the most compelling answer to the submission that the tariff for the baby walkers was mis-stated by Mr Mauthoor is to be found in the decision of the Supreme Court in Comptroller of Customs v Toys R Us Ltd. The fact that the court in that case held that the correct tariff for baby walkers is 871500 shows that Mr Mauthoor was right all along. It is impossible for it now to be asserted that the tariff for these goods was mis-stated by him. The court’s comment that by no stretch of the imagination could baby walkers be assimilated to furniture and seats demonstrates the unreality of the position that the first respondent was adopting on this issue. It also shows that there was room for a genuine difference of view on the matter.

28. The proper course for the first respondent to have adopted in these circumstances was to accept the amended bill of entry which Mr Mauthoor tendered showing that the H S Code for the baby walkers was 940180, and allow him to pay the higher rate of duty under protest so that he could take the matter to appeal. As it is, the first respondent embarked upon a course of conduct for which there was no probable cause. The protection which section 150 of the Act provides is not available to the respondents in these circumstances, and trial judge was wrong to uphold the plea in limine.

Conclusion

29. Their Lordships do not need to deal with the other arguments which were advanced by counsel for the appellants in support of the appeal, except to say that it does not follow from the conclusion which they have reached that the course of action on which the first respondent embarked was without probable cause that the derogation in section 8(4)(vii) of the Constitution from the right not to be deprived of one’s property in respect of acts done under the authority of the law does not apply in this case. But the evidence which has been led so far falls short of what would be needed to bring the case within that derogation. The first respondent refrained from seizing the goods, and he has not demonstrated that he had lawful authority for their detention once Mr Mauthoor had indicated by tendering an amended bill of entry that he was willing, albeit under protest, to pay the higher rate of duty which was payable on the baby walkers on the first respondent’s view as to how they should be classified.

30. For these reasons their Lordships will allow the appeal, set aside the judgment of Matadeen J and dismiss the respondents’ plea in limine litis claiming an immunity under section 150 of the Customs Act 1988. The case must be remitted to the trial judge for a hearing on the merits of the appellants’ claims. They express the hope that, in view of the delay that has been caused by the introduction of this plea, the hearing will take place as soon as possible. The costs of the proceedings to date in the Supreme Court will be costs in the cause. The respondents must pay the costs of the appeals to the Court of Civil Appeal and to their Lordships’ Board.