[2011] UKPC 45
Privy Council Appeal No 0070 of 2010
JUDGMENT
Dany Sylvie Marie and Dhojaven Vencadsamy and others
(Appellants) v The Electoral Commissioner,
The Electoral Supervisory Commission and The State of
Mauritius (Respondents)
From the Supreme Court of Mauritius
before
Lord Walker
Lady Hale
Lord Clarke
Sir Paul Girvan
Sir Terence Etherton
JUDGMENT DELIVERED BY
LORD CLARKE
ON
20 DECEMBER 2011
Heard on 25-26 October 2011
Appellant
Rex Stephen
Michel Ammee
Aruna Narain
(Instructed by Astor Law Practice)
Respondent
Geoffrey Cox QC
Sir Hamid Moollan QC
(Instructed by Attorney General’s office)
LORD CLARKE:
INTRODUCTION
1. The
applicants proposed to stand as candidates in the general election to be held
in Mauritius on 5 May 2010. To that end
they submitted nomination papers to the relevant returning officers. However, in each case they did so without
making a declaration as to the community to which they belonged. Each of the returning officers rejected the
nomination papers as invalid by reason of the failure to make that
declaration. The applicants challenged
those decisions in the Supreme Court of Mauritius. They did so by way of notice of motion dated
21 April 2010 in which they sought an order directing the returning officers to
insert the names of the applicants in the list of candidates for the election
on 5 May. The application was heard by
Mungly-Gulbul J (“the judge”) on 23 and 26 April and was refused on 26
April. She gave her reasons for her
refusal on 30 April 2010 and the election took place on 5 May, without any of
the applicants being candidates.
2. It was
not possible for the applicants to appeal against that refusal because
paragraph 4(4) of the First Schedule to the Constitution of Mauritius provides
that in such a case “the determination of the Judge shall not be subject to
appeal”. No doubt because of that
provision the applicants have not sought to appeal to the Court of Appeal in
Mauritius. Instead they have applied to
the Judicial Committee of the Privy Council for special leave to appeal against
the decision of the judge. A panel (Lord
Walker, Lord Collins and Sir John Dyson) considered the application on paper
and directed that the application be heard orally, with the appeal to follow if
leave was granted.
3. Three
issues were raised in the course of oral argument. They were (1) whether the Judicial Committee
has jurisdiction to grant special leave, (2) if it has, whether leave should be
granted in this case and (3) if leave is granted, whether the appeals should be
allowed. The Board heard full argument
on each of those issues and, so far as is appropriate, will consider them in
turn.
The issues before the judge
4. Although
the relief sought in the application to the judge was expressed in narrow
terms, namely an order directing the returning officers to insert the names of
the applicants in the list of candidates for the
election on 5 May, the application raised constitutional questions of some
importance, which have been considered by the courts in Mauritius on a number
of occasions. Indeed, the judge would
have granted the applications but for the fact that she was bound to refuse
them by the decision of the Full Bench of the Supreme Court in Electoral
Supervisory Commission v Attorney General (2005) SCJ 252, (2005) MR 42. In that case the Supreme Court reversed an
earlier decision by Balancy J in Narrain v Electoral Commissioner (2005) SCJ
159, (2005) MR 99.
5. The
Board has been provided with a list of applicants, which comprises 60 or 61
individuals who are said to belong to political parties, 32 individuals who are
said not to belong to any political party and four others, three of whom are
political parties and one of whom is described as a political alliance. The judge described the issues as being (1)
whether, on its true construction, paragraph 3 of the First Schedule to the
Constitution should be interpreted as giving authority to the Mauritian
Parliament to provide in regulation 12(5) of the National Assembly Elections
Regulations (“the Regulations”) that a nomination is invalid if a declaration
as to community has not been made and (2) whether regulation 12(5) is ultra
vires the Constitution. These are
important constitutional questions, which the applicants wish to revisit in an
appeal to the Privy Council. They are
not narrow questions of specific relevance only to a particular general
election. Before considering the three
issues identified above, it is appropriate to take note of the provisions of
the Constitution and of the Regulations which are relevant for present
purposes.
The Constitution and the Regulations
6. Chapter
I of the Constitution contains sections 1 and 2. By section 1, it is provided that Mauritius
shall be a sovereign democratic State and shall be known as the Republic of
Mauritius. By section 2, any other law
which is inconsistent with the Constitution is declared to be void. Chapter II contains sections 3 to 19 and sets
out the protection of fundamental rights and freedoms of the individual. Sections 11 and 16 provide for the protection
of freedom of conscience and for the protection from discrimination
respectively. By section 17, any person
who alleges an infringement of sections 3 to 16 may apply to the Supreme Court
for redress. That right is expressly
without prejudice to any other action with respect to the same matter that is
lawfully available.
7. Chapter
III provides for citizenship and Chapter IV provides for the President and the
Vice-President of the Republic. Chapter
V provides by section 31(1) that Parliament shall consist of the President and
the National Assembly and, by section 31(2), that the Assembly shall “consist
of persons elected in accordance with the First Schedule”, which makes
provision for the election of 70 members.
Sections 33 and 34 specify who is qualified to become and who is
disqualified from becoming a member of the General Assembly. It is not suggested that the applicants do
not qualify for membership within section 33.
8. The
First Schedule is central to the issues which the applicants seek to raise in
their proposed appeal. It is set out in
full in Annex A to this judgment. It
describes in detail the electoral system in Mauritius, which has a total of 70
seats. Of those 70 seats, 62 are to be
filled by directly elected candidates as described in paragraph 5(1). The remaining eight seats are allocated as
set out in detail in paragraph 5(8). The
intention behind this was to provide for minority interests to be represented
in Parliament while at the same time respecting the overall result of the
election. This became known as the best
loser system, which the Board will consider further below. The procedural method adopted for the
operation of the system is, by paragraph 3(1), to require candidates to declare
to which community he or she belongs in a published notice of nomination.
9. The
critical provisions are paragraphs 3(2), (3) and (4), which provide:
“(2) Within 7 days of the nomination of any candidate
at an election, an application may be made by an elector in such manner as may
be prescribed to the Supreme Court to resolve any question as to the
correctness of the declaration relating to his community made by that candidate
in connection with his nomination, in which case the application shall (unless
withdrawn) be heard and determined by a Judge of the Supreme Court, in such
manner as may be prescribed, within 14 days of the nomination, and the
determination of the judge shall not be subject to appeal.
(3) For the
purposes of this Schedule, each candidate at an election shall be regarded as
belonging to the community to which he declared he belonged at his nomination
as such, or if the Supreme Court has held in proceedings questioning the
correctness of his declaration that he belongs to another community, to that
other community, but the community to which any candidate belongs for those
purposes shall not be stated upon any ballot paper prepared for those purposes.
(4) For the
purposes of this Schedule, the population of Mauritius shall be regarded as
including a Hindu community, a Muslim community, a Sino-Mauritian community;
and every person who does not appear, from his way of life, to belong to one or
other of those 3 communities shall be regarded as belonging to the General
Population, which shall itself be regarded as a fourth community.”
10. The
Board was told that until this case there had only been one challenge under paragraph
3(2) to the correctness of a declaration relating to community. That was in the case of Parvez Carrimkhan v
Tin How Lew Chin (2000) SCJ 264. Like
the applicants in this case, the respondents disapproved of the best loser
system. They only entered a community on
the form in order to be able to stand and they chose a community only after the
drawing of lots. It appears that, again
like the applicants here, they did not intend to take one of the eight seats available
under the best loser system. Seetulsingh
J discussed some of the problems of deciding what community a person belongs
to. Not unnaturally, he rejected the
declaration of community based on the drawing of lots. He said that he was unable to decide whether,
from their way of life, the respondents belonged to the Hindu, Muslim or
Sino-Mauritian communities. He held
that, in these circumstances, the only alternative was to hold that they each
belonged to the fourth category identified in paragraph 3(4), namely the
General Population. In the light of the substantive issues between the parties
in the proposed appeal, it is perhaps noteworthy that Seetulsingh J said that
he understood that a project of electoral reform was on the cards and expressed
the hope that what he regarded as defects in the system would be remedied in
the near future. The Board was told much
the same in the course of argument.
11. Paragraph
4(1) and (2) of the First Schedule provide in effect that every candidate shall
make a declaration in such manner as may be prescribed and that there shall be
such provision as may be prescribed for the determination by a returning
officer of questions concerning the validity of such a nomination. Paragraph 4(3) provides that, where a
returning officer decides that a nomination is valid, his determination shall
not be questioned in any proceedings other than proceedings under section 37 of
the Constitution. Section 37 gives the
Supreme Court jurisdiction to hear and determine, inter alia, any question
whether any person has been validly elected as a member of the Assembly. Section 37(2) to (5) make detailed provisions
for such an application, which is a direct application to the Supreme Court. Section 37(6) provides that a determination
under the section shall not be subject to appeal, provided that an appeal shall
lie to the Judicial Committee of the Privy Council in such cases as may be
prescribed by Parliament. So far as the
Board is aware, no such cases have been prescribed by Parliament.
12. By
contrast, paragraph 4(4) provides that, where a returning officer decides that
a nomination is invalid, his decision may be questioned upon an application to
the Supreme Court made within such time and in such manner as may be prescribed
and the determination of the judge shall not be subject to appeal. This is such a case because the returning
officers declared each nomination to be invalid for want of a declaration as to
community and the applicants applied to the Supreme Court under paragraph 4(4),
so that it follows that the determination of the judge on those applications
“shall not be subject to appeal”.
13. As
appears above, the First Schedule made provision for various aspects of the
procedure to be prescribed. They were
prescribed in the Regulations. For
present purposes it is only necessary to refer to regulation 12, which makes
detailed provisions for the nomination of candidates. It provides a tight timetable. Regulation 12(3) provides that the nomination
paper for each candidate shall be in Form 4, which is attached to the
Regulations and includes a declaration that he or she is a member of a specific
community, which must be one of the four communities described in paragraph
3(4) of Schedule 1 to the Constitution.
Form 4 is thus consistent with regulation 12(4)(c), which provides that,
each candidate must make a declaration, in the case of a general election, “as
to which of the Hindu, Muslim, Sino-Mauritian or General Communities he
belongs”.
14. Regulation
12(5) provides that if such a declaration is not made in conformity with the
provisions of paragraph (4), which of course includes paragraph (4)(c), the
nomination of the candidate shall be void and of no effect. The applicants submitted to the judge and
wish to submit to the Board that regulation 12(5) is contrary to the
Constitution and therefore void. They
did not submit that any provision of the First Schedule is void, presumably on
the basis that it is part of the Constitution and cannot therefore be void.
15. As
stated above, the applicants chose to challenge the decisions of the returning
officer rejecting the nominations as invalid, or void and of no effect, by
reason of the candidates’ failure to make a declaration as to the community to
which they belonged by applying to the Supreme Court under paragraph 4(4) of
the First Schedule. It follows from the
express terms of that paragraph that the decision of the Supreme Court that the
nominations were invalid is not subject to appeal. The question is whether, notwithstanding that
provision, the applicants can challenge the decision by seeking and obtaining
special leave to appeal to the Judicial Committee of the Privy Council.
16. It is
common ground that, whatever the answer to that question, there are other ways
in which the applicants can challenge the constitutionality of regulation 12(5)
of the Regulations. As already stated,
they can do so under section 17 of the Constitution in so far as they allege an
infringement of their rights under sections 3 to 16, which of course include the
right to freedom of conscience under section 11. Section 83 provides other circumstances in
which the Supreme Court has original jurisdiction in relation to constitutional
questions but, by section 83(5), it expressly provides that nothing in the
section shall confer jurisdiction on the Supreme Court to hear or determine any
such question as is referred to in section 37 or paragraphs 2(5), 3(2) or 4(4)
of the First Schedule otherwise than upon an application made in accordance
with that section or any of those paragraphs.
17. The
Board will consider section 81 of the Constitution, which is entitled Appeals
to the Judicial Committee under the next heading, where it considers the
jurisdiction of the Judicial Committee to grant special leave in this case.
18. Section
47 provides how the Constitution can be altered by Parliament. For present purposes it is sufficient to note
that by section 47(3), section 1 cannot be altered unless the Bill has first
been submitted to the electorate by referendum and has been approved by the
votes of not less than three quarters of the electorate and the Bill is
supported at the final voting in the Assembly by the votes of all the members
of the Assembly. By section 47(2) there
are a number of provisions, including the First Schedule, which can only be
altered if the proposed alteration is supported at the final voting by not less
than three quarters of all the members of the Assembly.
Jurisdiction of the Judicial Committee
19. Section
81 of the Constitution is annexed to this judgment as Annex B. By section 81(1), it provides that an appeal
shall lie as of right from decisions of the Supreme Court or of the Court of
Appeal (which is a division of the Supreme Court) in certain circumstances. They include appeals from (a) final decisions
in any civil proceedings on questions as to the interpretation of the
Constitution and (c) final decisions in proceedings under section 17. By section 81(2), an appeal shall lie with
the leave of the Supreme Court or the Court of Appeal where in the opinion of
the Court the question is one that, by reason of its great general or public
importance or otherwise, ought to be submitted to the Judicial Committee. However, like section 83(5), section 81(3)
provides that subsections (1) and (2) are subject to section 37(6) and
paragraphs 2(5), 3(2) or 4(4) of the First Schedule, that is that no appeal
shall lie to the Judicial Committee as of right or by leave of the Supreme
Court or the Court of Appeal in a case where the validity or invalidity of a
nomination or the correctness of a declaration relating to community is
determined by the Supreme Court.
20. On the
face of it section 81(3) appears to provide that no appeal shall be brought to
the Judicial Committee in such a case.
This is of course such a case because, at any rate in form, the
applicants seek to challenge the decision of the judge that the decisions of
the returning officers that the nominations of the applicants were
invalid. However, section 81(3) is
itself subject to section 81(5) which provides that nothing in section 81 (and
thus nothing in section 81(3)) shall affect “any right of the Judicial
Committee to grant special leave to appeal from the decision of any court in
any civil or criminal matter”. Section
81(5) originally provided:
“Nothing in this section shall affect any right of Her
Majesty to grant special leave to appeal to Her Majesty in Council from the
decision of any court in any civil or criminal matter.”
It was amended to its present form in 1991 by section
16 of the Constitution of Mauritius (Amendment No 3) Act 1991 in order to set
out the position when Mauritius became a Republic.
21. Two
questions have arisen under section 81(5).
They are whether this is a civil matter within the meaning of the
subsection and, if so, whether the Judicial Committee has jurisdiction to grant
special leave in these circumstances.
22. The
meaning of the expression “civil … matter” was considered obiter by the
Judicial Committee in Goinsamy Chinien v The Attorney General and The Mauritius
Bar Association on 9 March 2000. The
Board in that case, comprising Lord Hutton, Lord Hobhouse of Woodborough and
Lord Millett, considered a petition for special leave by a barrister against a
decision of the Supreme Court of Mauritius refusing to reinstate his name on
the roll of practising barristers. It
held that the barrister had no right of appeal under section 81(2)(a) of the
Constitution because, when the judges acted to suspend or strike off a barrister
they were not acting as a court of law but as a disciplinary authority, so that
the proceedings were not “civil proceedings” within paragraph (a): see p 8,
where Lord Hutton adopted the principle to that effect stated by Lord Denning
in Attorney General of The Gambia v N’Jie [1961] AC 617, 631.
23. The
Board then considered whether such proceedings were a civil matter within
section 81(5). In the last paragraph of
the judgment of the Board Lord Hutton said this:
“Section 81(5) refers to ‘any civil … matter’ whereas
sections 81(1) and (2) refer to ‘any civil proceedings’. Having regard to this difference in wording
and to the former right of a legal practitioner suspended or struck off by the
judges of a colony to petition her Majesty in Council to restore him it can be
argued that giving a purposive construction to section 81(5) there is
jurisdiction for the Judicial Committee to grant special leave. Their Lordships do not propose to express a
concluded opinion on this point as, if the jurisdiction does exist, it should
only be exercised in special circumstances and they are satisfied that no such
circumstances exist in this case.”
24. In the
opinion of the Board this is a civil matter.
It is not a disciplinary process, so that the conclusion that the
disciplinary proceedings were not civil proceedings within section 81(1)(a)
does not apply to these proceedings. It
is the provisional view of the Board that both these proceedings and
proceedings under section 17 or 83 of the Constitution are civil proceedings
within the meaning of section 81(2)(a).
If that is correct, there can be no doubt that this is a civil
matter.
25. Even if
these are not civil proceedings, the Board can see no reason why they should
not fairly be regarded as a civil matter.
This seems to the Board to be consistent with the approach of the
Judicial Committee to the equivalent provision in the Gibraltar Constitution,
where in Ford v The Queen [2003] UKPC 35, 9 April 2003, the Board described it
as being in the widest terms. In any
event the claim for a declaration that the decision of each returning officer
that the declaration was invalid would naturally be regarded as a claim in a
civil matter.
26. The
question remains whether the Judicial Committee has jurisdiction to grant
special leave in such a case. The Board
has concluded that the answer to this question depends upon whether there is a
Mauritian statute that “either expressly or by necessary intendment” shows that
the power of the Judicial Committee to grant special leave in such a case has
been excluded. The steps that have led
the Board to reach that conclusion are these.
27. In 1987
David Swinfen set out the origins of special leave in his book Imperial Appeal
at pp 12-13. A litigant in a colony who
sought to have his appeal heard before the Privy Council could do so in two
ways, either by appeal as of right or by special leave of the Judicial
Committee. The appeal as of right
derived historically from the ancient privilege of the subject to seek redress
at the foot of the throne, but it was a right which existed only where it had
been specifically created, by statute or otherwise, and it was subject to
regulation by various means including colonial legislation. It was accepted that colonial legislatures
could regulate the appeal as of right and could indeed extinguish it. By contrast, the position was different in
the case of appeal “as of grace” by special leave. Swinfen put it thus:
“The appeal as of grace derived from the inherent
prerogative right of the Crown to exercise an appellate jurisdiction, and where
a suitor was not entitled to an appeal as of right, he could nevertheless
petition the Judicial Committee itself for special leave to appeal.”
28. It is
now clear that the Judicial Committee’s power to grant special leave is no longer
founded upon the royal prerogative itself, but instead arises under the
provisions of the Judicial Committee Act 1833 (“the 1833 Act”) and the Judicial
Committee Act 1844 (“the 1844 Act”).
Thus in Campbell v The Queen (Jamaica) [2010] UKPC 26, [2011] 2 AC 79,
Lord Mance, giving the judgment of the Board, explained at para 6 that:
“the royal prerogative power to grant special leave
was regulated and restated by the provisions of section 3 of the Judicial
Committee Act
1833 and section 1 of the Judicial Committee Act
1844.”
Similarly, in Walker v The Queen [1994] 2 AC 36 Lord
Griffiths stated at p 44:
“Whatever may have been the original powers of the
Privy Council, the powers of the Judicial Committee of the Privy Council are
now governed by the Acts of 1833 and 1844 which must be recognised as
superseding the royal prerogative: see Attorney General v De Keyser’s Royal
Hotel Ltd [1919] 2 Ch 197; [1920] AC 508.”
29. Section
3 of the 1833 Act provides:
“All appeals or complaints in the nature of appeals
whatever, which either by virtue of this Act, or of any law, statute, or
custom, may be brought before his Majesty or His Majesty in Council from or in
respect of the determination, sentence, rule, or order of any court, judge, or
judicial officer, and all such appeals as are now pending, and unheard, shall
from and after the passing of this Act be referred by his Majesty to the said
Judicial Committee of his Privy Council, and such appeals, causes, and matters
shall be heard by the said Judicial Committee, and a report or recommendation
thereon shall be made to his Majesty in Council for his decision thereon as
heretofore, in the same manner and form as has been heretofore the custom with
respect to matters referred by his Majesty to the whole of his Privy Council or
a committee thereof (the nature of such report or recommendation being always
stated in open court).”
30. Section
1 of the 1844 Act provides inter alia:
“It shall be competent for Her Majesty, by any order
or orders to be from time to time for that purpose made with the advice of her
Privy Council, to provide for the admission of any appeal or appeals to Her
Majesty in Council from any judgments, sentences, decrees or orders of any
court of justice within any British colony or possession abroad, although such
court shall not be a court of errors or a court of appeal within such colony or
possession; and it shall also be competent to Her Majesty, by any such order or
orders as aforesaid, to make all such provisions as to her Majesty in Council
shall seem meet for the instituting and prosecuting any such appeals …”
Section 1 includes a number of provisos, including a
proviso that “any such order as aforesaid may be either general … or special
and extending only to any appeal to be brought in any particular case.”
31. It is
clear from the broad and unqualified statutory language that the Judicial
Committee has a general power to grant special leave under the 1833 and 1844
Acts. The question then arises whether
and to what extent a state can act to restrict this power.
32. In this
respect it may again be helpful briefly to consider the historical background,
which Swinfen explains in Imperial Appeal in this way:
“The power of the Committee to grant such a petition
[for special leave] being a prerogative power, it was not considered to be
amenable to colonial or dominion legislation, and could not therefore be
abolished by a Dominion unilaterally. The debate in the nineteenth and
twentieth centuries over retention or abolition of the right to appeal centred
therefore on this prerogative power to grant special leave. Of the older
Dominions, South Africa alone was able to claim the constitutional authority to
end this mode of appeal as and when she wished to do so. For the rest, their
power to end the system of appeal by special leave was not finally established
until the passage of the Statute of Westminster in 1931.”
33. The
case cited as authority for the proposition in the last sentence is British
Coal Corporation v The King [1935] AC 500, where, after reviewing the
historical position in some detail, the Judicial Committee held that following
the 1931 Statute of Westminster the Canadian legislature could abrogate the
Privy Council’s power to grant special leave.
In reaching that conclusion, the Board held that in order to oust the
Judicial Committee’s jurisdiction to grant special leave, domestic legislation
must remove the power either by the use of “express words” or by “necessary
intendment”: see in particular pp 519 and 522.
34. In De
Morgan v Director-General of Social Welfare [1998] AC 275, the Board summarised
the position thus at p 284:
“The result of this analysis is that by excluding or
limiting the rights of the Privy Council to grant special leave to appeal a New
Zealand statute is not, in any ordinary sense, purporting to limit the royal
prerogative. It is limiting what is in substance a statutory right with a
purely formal prerogative element attached. In the British Coal case [1935] AC
500, 519 it was said that in order for a statute to exclude or limit that right
it had to do so by ‘express words or by necessary intendment’ … It was held
that the relevant statute in the British Coal case [1935] AC 500 had given the
power to exclude the right ‘by necessary intendment’ although there were not
any express words authorising that result. That decision was followed and
extended to the abolition of civil appeals from Canada in the Attorney General
for Ontario case [1947] AC 127.’
35. More
recently, in the Jamaican case Grant v Director of Correctional Services [2004]
UKPC 27, [2004] 2 AC 550 the Board restated the general position regarding
special leave:
“The nature of the Crown’s right to grant special
leave to appeal was considered most recently by the Board in De Morgan v
DirectorGeneral of Social Welfare [1998] AC 275. The Board held that the right
to entertain appeals to the Privy Council is no longer a wholly prerogative
power but is regulated by the Judicial Committee Acts 1833…and 1844… It is not
a normal prerogative power of the Crown. Lord Browne-Wilkinson said, at p 285,
that it is ‘at best, a power which is in substance statutory, being regulated
by the Judicial Committee Acts, with a vestigial and purely formal residue of
the old prerogative powers’. Accordingly, express words are not required to
limit or abolish the right to entertain such appeals. It is enough if the
statute excluding the right of appeal to the Privy Council shows ‘either expressly
or by necessary intendment’ that the power to entertain such appeals is to be
abolished.”
36. Two
points emerge clearly from these authorities. First, independent States such as
Mauritius are able to limit or abrogate the Judicial Committee’s ability to
grant special leave to hear appeals from the courts of that State. Secondly,
the Judicial Committee’s power to grant special leave will remain intact unless
and until the State enacts legislation which removes the power either expressly
or by “necessary intendment”.
37. What
then is the position in Mauritius? The
answer depends upon the
construction and effect of the Constitution and such
Mauritian statutes as are relevant.
However, it is first appropriate to notice the Mauritius Republic Act 1992
(“the 1992 Act”), which provides by section 2, so far as material, as follows:
“2 — Judicial
Committee of Privy Council
(1) Her
Majesty may by Order in Council confer on the Judicial Committee of the Privy
Council such jurisdiction and powers as may be appropriate in cases in which
provision is made by the law of Mauritius for appeals to the Committee from
courts of Mauritius.
(2) An
Order in Council under this section may contain such incidental and
supplemental provisions as appear to Her Majesty to be expedient. …
(5) Except so far as otherwise provided by or in
accordance with an Order in Council under this section, and subject to such
modifications as may be so provided, the Judicial Committee Act 1833 shall have
effect in relation to appeals in respect of which jurisdiction is conferred
under this section as it has effect in relation to appeals to Her Majesty in
Council.”
38. The
Mauritius (Appeals to Judicial Committee) Order 1992 was made pursuant to the
1992 Act. By the express terms of para
2(1) of the Order, the Judicial Committee’s jurisdiction to hear appeals from
Mauritius is determined by section 81 of the Constitution. By para 2(2), the provisions of the 1833 Act
and any rules made under it were made applicable to proceedings under section
81 with such modifications as might be necessary by reason of the nature of the
proceedings or otherwise to bring them into conformity with the provisions of
the Constitution.
39. Section
81 is therefore the constitutional touchstone for establishing the scope of the
Judicial Committee’s jurisdiction to hear appeals against decisions of the
courts in Mauritius. In this regard it
is important to identify the scope of section 81(5). Section 81(5) does not itself confer a right
upon the Privy Council to entertain appeals by way of special leave. It does not itself purport to create or
demarcate the scope of any such right.
It does no more than preserve any right which might otherwise
exist. The almost identical provision in
section 110(3) of the Jamaican Constitution was considered by the Judicial
Committee in both Grant and Campbell.
40. In
Grant the Judicial Committee was required to decide whether a Jamaican statute
which prevented an appeal to the Privy Council pursuant to special leave was
compatible with section 110(3) of the Jamaican Constitution. The Judicial
Committee held that it was compatible. In reaching this conclusion, the Board
explained that:
“Section 110(1) and (2) grant defined rights of appeal
to the Board. Section 110(3) is expressed in negative terms. It does not grant
any rights. Entitlement to an appeal to the Board on special leave granted by
the Board does not derive from this provision, or any other provision, in the
Constitution. Entitlement to such an appeal derives from the Judicial Committee
Acts, continued in force on independence along with all other existing laws by
section 4(1) of the Jamaica (Constitution) Order in Council 1962. On its face
the evident purpose of section 110(3) is confined to ensuring that the rights
of appeal to the Board conferred by section 110(1) and (2), which make no
mention of the Board’s right to grant special leave, are not to be taken
impliedly to exclude or affect the latter right. Section 110(3) assumes the
existence of such a right, although the draftsman has carefully catered for the
possibility of change by using the phrase ‘any right’ rather than ‘the right’.”
In Campbell v The Queen Lord Mance similarly explained
that section 110(3) is carefully framed to preserve, rather than grant,
jurisdiction.
41. In the
opinion of the Board those Jamaican authorities confirm that the purpose of
section 81(5) of the Constitution of Mauritius was to make it clear that
nothing in section 81 was intended to abrogate or modify the power of the
Judicial Committee to grant special leave.
However it is equally clear that section 81(5) does not positively
confer jurisdiction on the Judicial Committee to give special leave, nor does
it prevent other provisions of the Mauritius Constitution or Mauritian law from
limiting or abrogating the Judicial Committee’s power to grant special leave.
42. It is
therefore necessary to look elsewhere in order to determine whether or not the
Board has power to grant special leave. The important question is whether there
is any other legislation or Constitutional provision that expressly or by
“necessarily intendment” restricts the Judicial Committee’s power to grant
special leave in this case.
43. The
other provisions which are of particular relevance for present purposes are
section 81(3), paragraph 4, especially 4(3) and (4), of the First Schedule and
section 37, especially section 37(6), of the Constitution. The First Schedule and section 81 are annexed
to this judgment and the Board has already summarised the provisions of
particular relevance above.
44. In
particular, section 81(3) of the Constitution expressly provides that
subsection (1) (appeal to the Judicial Committee as of right) and subsection
(2) (appeal to the Judicial Committee with leave from the Supreme Court) are
subject to paragraph 4(4) of the First Schedule, which provides that, where a
returning officer decides that a nomination is invalid, his decision may be
questioned upon an application to a judge of the Supreme Court and that the
determination of the Judge shall not be subject to appeal. By contrast, where the returning officer
decides that a nomination is valid, a challenge to the Supreme Court may only
be brought by proceedings under section 37, which by section 37(6) provides that
a determination by a judge under that section shall not be subject to appeal
and, although it contains a proviso that an appeal shall lie to the Judicial
Committee in such circumstances as may be prescribed by Parliament, no such
circumstances have been prescribed. The
natural inference is that in such a case, absent such prescription, it was
intended under the Constitution that there should be no appeal to the Judicial
Committee of any kind, including by way of special leave.
45. The
same inference cannot be drawn directly in the case of a determination that the
declarations were invalid because there is no equivalent of the proviso to
section 37(6) in paragraph 4(4). On the
other hand, it would be very odd if an appeal by special leave were available
against a decision that the declarations were invalid but not where they were
valid. The Board would expect the
position to be the same in both cases and, indeed, in the further case where
the challenge is to a determination of the correctness of a nomination under
paragraph 3(2). In that case the
determination cannot be subject to an appeal by reason of the prohibition in
paragraph 3(2), which in this respect is in the same terms as paragraph 4(4).
46. The
inclusion of the proviso in section 37(6) suggests that the draftsman of the
Constitution may have thought that there might be some reason why it would be
appropriate to permit an appeal to the Judicial Committee in a case where the
issue was whether a person had been validly elected as a member of Parliament. He therefore left it to Parliament to decide
that question in the future. By
contrast, the absence of any such provision in paragraph 3(2) or 4(4) supports
the conclusion that he intended that it should not be possible to appeal to the
Judicial Committee in such cases, whether under section 81(1)(a) or (b) or (2)
or by special leave. This seems to the
Board to be confirmed by the fact that section 81(3) provides that section
81(1) and (2) are subject to both section 37(6) and paragraphs 3(2) and
4(4). In short paragraphs 3(2) and 4(4)
are finality provisions which would be deprived of much of their effect if
appeals to the Judicial Committee were permitted. Section 37(6) is also a finality provision
but subject to Parliament subsequently permitting an appeal to the Judicial
Committee.
47. The
policy reason behind all these provisions seems to the Board to be clear. It is to permit one challenge to a decision
of the returning officer or to the correctness of a declaration, all within a
tight time scale, in order to ensure that the determination is made before the
election, but to prohibit appeals with the inevitable delays consequent upon
them, so that the election can proceed without delay in the light of whatever
decision is reached by the court. This
seems to the Board to be an entirely understandable policy.
48. Similar
considerations have been taken into account by the Judicial Committee in
election cases in the past. For example
in Strickland v Grima [1930] AC 285 it gave provisional leave in order to hear
full argument on whether special leave ought to be granted in a case from
Malta. Clause 33 of the Maltese
Constitution Letters Patent provided:
“All questions which may arise as to the right of any
person to be or remain a member of the Senate or the Legislative Assembly shall
be referred to and decided by Our Court of Appeal in Malta.”
49. The
Board held that the clear intention was that the Court of Appeal in Malta would
have the first and only say on those matters with no further appeal to the
Privy Council. The Court of Appeal had
held that the election of two members to the senate had been null and
void. Giving the judgment of the Board,
Lord Blanesburgh said at p 296 that the jurisdiction in such a case was
extremely special and
“of a character that ought, as soon as possible, to
become conclusive, in order that the constitution of the assembly may be
distinctly and speedily known.”
50. A
similar result was reached in Senanayake v Navaratne [1954] AC 640, where it
was held that the finality clause applied even to jurisdictional
challenges. Both Strickland and
Senanayake were distinguished in Devan Nair v Yong Kuan Teik [1967] 2 AC 31,
but no doubt was expressed on the underlying approach. On the contrary, giving the judgment of the
Board, Lord Upjohn referred (at p 40E) to what he called a long line of
decisions starting with Théberge v Laudry (1876) 2 App Cas 102 and ending with
Arzu v Arthur [1965] I WLR 675. He added
that the underlying reason for this line of decisions was, as the authorities
show, “the recognition of the necessity for a speedy determination of an
election issue”. None of the cases is on
all fours with this case but they do
seem to the Board to point the way.
51. In all
the circumstances the Board has concluded that the Constitution provides, if
not expressly, then by necessary intendment, that the Judicial Committee has no
jurisdiction to give special leave to appeal from a determination by the
Supreme Court under paragraph 4(4) of the First Schedule.
52. In
reaching that conclusion the Board is aware that the contrary view was
expressed in Narrain v Electoral Suprevisory Commission (2006) SCJ 214. That was an application in which the Supreme
Court, comprising Pillay CJ and Matadeen and Lam Shang Leen JJ were asked to
overturn the previous decision of the Full Bench in Electoral Supervisory
Commission v Attorney General, which had overruled the decision of Balancy J in
the first Narrain case. The procedure
used was “tierce opposition” (a process whereby an individual can ask the court
to reconsider a decision in a case in which they were not a party but which
causes him hardship or prejudice). The
court in the second Narrain case held
that the challenge could not succeed because the action ought to have been
brought by way of plaint and summons under the civil procedure rules. It also
observed that such a procedure
“…might not apply in constitutional matters since
special provision has been made to deal with those matters”.
The Court thought however that it would be open to a
candidate who had his nomination refused to apply directly to the Judicial
Committee for special leave “…in spite of the fact that such a determination is
not subject to an appeal”. If by that
the Court meant that a decision of the Supreme Court made under paragraph 4(4)
of the First Schedule could be challenged by obtaining special leave to appeal
to the Judicial Committee, the Board respectfully disagrees for the reasons it
has given above.
53. It
follows that the Judicial Committee does not have jurisdiction to grant special
leave and must therefore refuse the application.
Would special leave have been granted?
54. In the
light of the Board’s decision on jurisdiction, the question whether to grant
special leave does not arise. However,
the question was fully argued and the Board will briefly state its conclusion,
which is that, on the assumption that the Judicial Committee has jurisdiction
to grant special leave, such leave should not, and therefore would not, be
granted.
55. The
considerations set out above which emphasise the importance of the speedy
resolution of issues relating to the alleged invalidity of a candidate’s
nomination for election form a strong basis for the Board refusing to exercise
any discretion to grant special leave to challenge the decision of the judge
that the decisions of the returning officers that the nominations were invalid
were correct. In these circumstances,
the Board would only exercise its jurisdiction to grant special leave in a
special, even exceptional, case.
56. No such
circumstances exist here. The true
complaint that the applicants have is that the best loser system is wrong in
principle and should be abolished. There
may be strong grounds for advancing such a contention. It is said on behalf of the respondents that
the debate is a political debate and that there is no basis for mounting a
legal challenge to the system. They say
that the applicants have dressed up what is in reality a challenge to the
provisions of the First Schedule to the Constitution as a challenge to the
legality of the Regulations and that it is not open to the courts to strike
down any part of the Constitution, which can only be altered in accordance with
the provisions of section 47 referred to above.
The applicants reply is that they are not challenging any provision of
the Constitution but only the Regulations.
57. Whichever
of those submissions is correct, for essentially two reasons the Board is of
the opinion that special leave should not be granted to challenge the decision
of the judge. The first reason is that
it is not necessary to permit such a challenge in order to enable the
applicants to raise the constitutional issues which they wish to advance. As explained above, it is common ground that
they can raise the issues by making an appropriate application to the Supreme
Court from which there is an avenue of appeal to the Judicial Committee. It was accepted on behalf of the respondents
that neither the failure of the applicants’ case before the judge nor the
failure of this application for special leave to appeal against her decision
will prevent a constitutional challenge being advanced in the future. There is no need for such a challenge to be
permitted by way of appeal from the decision of the judge because, as the
applicants themselves recognise, it is now too late to challenge the election
of those elected as long ago as May 2010.
58. The
second reason for not granting special leave is that, in the opinion of the
Board, it is of the utmost importance that, save perhaps in an exceptional
case, the Judicial Committee should not pronounce upon what are or may issues
of considerable constitutional importance without having the benefit of the
opinion of the Supreme Court or the Court of Appeal upon them. Those courts have much greater familiarity
with the history and development of the voting system in Mauritius and, so far
as they may be relevant, with both issues of policy and the political realities
in Mauritius today. They are in a far
better position than the Board, at any rate in the first instance, to grapple
with such issues and to identify which issues are in truth issues of law and
which are issues of policy.
59. At one
stage in the course of the argument and its subsequent deliberations the Board
considered whether, if it had jurisdiction, it would take the case on the basis
that the applicants’ case from the outset had been a constitutional challenge
and that the respondents had every opportunity to put whatever material they
wished before the Board. However, on
reflection, it has concluded that that would not be the correct approach
because of the importance of the constitutional issues being considered and
adjudicated upon in the first instance in Mauritius.
60. For
these reasons, the Board has concluded that, if the Judicial Committee had
jurisdiction to grant special leave against the decision of the judge, it would
not exercise it.
The merits
61. It
follows from the conclusions expressed so far that it would not be appropriate
for the Board to express concluded views upon the merits. If the matter were ever to return to the
Judicial Committee in the future, it would only be after all parties had had
the opportunity to put evidence before the Supreme Court in Mauritius and after
Supreme Court and the Court of Appeal had had an opportunity of reaching their
own conclusions. In these circumstances
the Board will only say this.
62. It has
been plain to the Board from the argument that the question whether the best
loser system should be retained has given rise to much political and perhaps
legal debate over the years. It is now
some years since Seetulsingh J said that he understood that a project of
electoral reform was on the cards. The
Board was told much the same. It is
perhaps obvious that it would be much better for these issues to be decided as
a result of political debate and, if necessary, constitutional reform than
through the courts.
63. There
is undoubted force in the submissions made on behalf of the respondents that
the applicants’ real concern is not with the Regulations but with the best
loser system set out in the First Schedule.
The Board well understands the applicants’ concerns, especially for
example the amendment to paragraph 5(8) of the First Schedule which introduced
a reference to the 1972 census as the basis of an important part of the
calculation necessary to operate the system: see Annex A, First Schedule,
paragraph 5(8), note 1 below. It is said
that a system based on figures now nearly forty years old makes no sense. However, whatever the merits of the opposing
arguments, the Board is unable to express a view upon them now.
64. The
Board understands that the applicants wish to say that their existing
constitutional rights have been infringed but does not think it right to reach
any firm conclusions on the merits. It
appreciates that, if the issues cannot be resolved politically, they may be
raised before the Judicial Committee in the future.
CONCLUSION
65. For the
reasons given above, the Board concludes that the Judicial Committee has no
jurisdiction to grant special leave to appeal from the decision of the judge
dismissing the applicants’ challenge to the returning officers’ decisions that
the nominations were invalid for failure, in each case, by the proposed
candidate to make a declaration as to community. It follows that the applications are
refused. If it had held that the
Judicial Committee had jurisdiction, the Board would not have granted special
leave. It remains open to the applicants
to advance a constitutional challenge in the future. The Board expresses no concluded views as to
the merits of any such challenge, especially since it will be based on evidence
put before the Supreme Court or Court of Appeal and the Judicial Committee will
then have the benefit of the views of the courts in Mauritius.
66. Parties
to submit applications in writing for costs within 28 days.
ANNEX A
FIRST SCHEDULE (section 31(2))
1. Elected
members to be returned by constituencies
(1) There
shall be 62 seats in the Assembly for members representing constituencies and
accordingly each constituency shall return 3 members to the Assembly in such
manner as may be prescribed, except Rodrigues, which shall so return 2 members.
(2) Every
member returned by a constituency shall be directly elected in accordance with
this Constitution at a general election or by-election held in such manner as
may be prescribed.
(3) Every
vote cast by an elector at any election shall be given by means of a ballot
which, except in so far as may be otherwise prescribed in relation to the
casting of votes by electors who are incapacitated by blindness or other
physical cause or unable to read or understand any symbols on the ballot paper,
shall be taken so as not to disclose how any vote is cast; and no vote cast by
any elector at any general election shall be counted unless he cast valid votes
for 3 candidates in the constituency in which he is registered or, in the case
of an elector registered in Rodrigues, for 2 candidates in that constituency.
2. Registration
of parties
(1) Every
political party in Mauritius, being a lawful association, may, within 14 days
before the day appointed for the nomination of candidates for election at any
general election of members of the Assembly, be registered as a party for the
purposes of that general election and paragraph 5(7) by the Electoral
Supervisory Commission upon making application in such manner as may be
prescribed:
Provided that any 2 or more political parties may be
registered as a party alliance for those purposes, in which case they shall be
regarded as a single party for those purposes; and this Schedule shall be
construed accordingly.
(2) Every
candidate for election at any general election may at his nomination declare in
such manner as may be prescribed that he belongs to a party that is registered
as such for the purpose of that general election and, if he does so, he shall
be regarded as a member of that party for those purposes, while if he does not
do so, he shall not be regarded as a member of any party for those purposes;
and where any candidate is regarded as a member of a party for those purposes,
the name of that party shall be stated on any ballot paper prepared for those
purposes upon which his name appears.
(3) Where
any party is registered under this paragraph, the Electoral Supervisory
Commission shall from time to time be furnished in such manner as may be
prescribed with the names of at least 2 persons, any one of whom is authorised
to discharge the functions of leader of that party for the purposes of the
proviso to paragraph 5(7).
(4) There
shall be such provision as may be prescribed requiring persons who make
applications or declarations for the purposes of this paragraph to furnish
evidence with respect to the matters stated in such applications or
declarations and to their authority to make such applications or
declarations.
(5) There
shall be such provision as may be prescribed for the determination, by a Judge
of the Supreme Court before the day appointed for the nomination of candidates
at a general election, of any question incidental to any such application or
declaration made in relation to that general election, and the determination of
the Judge shall not be subject to appeal.
3. Communities
(1) Every
candidate for election at any general election of members of the Assembly shall
declare in such manner as may be prescribed which community he belongs to and
that community shall be stated in a published notice of his nomination.
(2) Within
7 days of the nomination of any candidate at an election, an application may be
made by an elector in such manner as may be prescribed to the Supreme Court to
resolve any question as to the correctness of the declaration relating to his
community made by that candidate in connection with his nomination, in which
case the application shall (unless withdrawn) be heard and determined by a
Judge of the Supreme Court, in such manner as may be prescribed, within 14 days
of the nomination, and the determination of the Judge shall not be subject to
appeal.
(3) For the
purposes of this Schedule, each candidate at an election shall be regarded as
belonging to the community to which he declared he belonged at his nomination
as such, or if the Supreme Court has held in proceedings questioning the
correctness of his declaration that he belongs to another community, to that
other community, but the community to which any candidate belongs for those
purposes shall not be stated upon any ballot paper prepared for those
purposes.
(4) For the
purposes of this Schedule, the population of Mauritius shall be regarded as
including a Hindu community, a Muslim community and a Sino-Mauritian community;
and every person who does not appear, from his way of life, to belong to one or
other of those 3 communities shall be regarded as belonging to the General
Population, which shall itself be regarded as a fourth community.
4. Provisions
with respect to nominations
(1) Where
it is so prescribed, every candidate for election as a member of the Assembly
shall in connection with his nomination make a declaration in such manner as
may be prescribed concerning his qualifications for election as such.
(2) There
shall be such provision as may be prescribed for the determination by a
returning officer of questions concerning the validity of any nomination of a
candidate for election as a member of the Assembly.
(3) Where a
returning officer decides that a nomination is valid, his decision shall not be
questioned in any proceedings other than proceedings under section 37.
(4) Where a
returning officer decides that a nomination is invalid, his decision may be
questioned upon an application to a Judge of the Supreme Court made within such
time and in such manner as may be prescribed, and the determination of the
Judge shall not be subject to appeal.
5. Allocation
of 8 additional seats
(1) In
order to ensure a fair and adequate representation of each community, there
shall be 8 seats in the Assembly, additional to the 62 seats for members
representing constituencies, which shall so far as is possible be allocated to
persons belonging to parties who have stood as candidates for election as
members at the general election but have not been returned as members to
represent constituencies.
(2) As soon
as is practicable after all the returns have been made of persons elected at
any general election as members to represent constituencies, the 8 additional
seats shall be allocated in accordance with the following provisions of this
paragraph by the Electoral Supervisory Commission which shall so far as is
possible make a separate determination in respect of each seat to ascertain the
appropriate unreturned candidate (if any) to fill that seat.
(3) The
first 4 of the 8 seats shall so far as is possible each be allocated to the
most successful unreturned candidate, if any, who is a member of a party and
who belongs to the appropriate community, regardless of which party he belongs
to.
(4) When
the first 4 seats (or as many as possible of those seats) have been allocated,
the number of such seats that have been allocated to persons who belong to
parties, other than the most successful party, shall be ascertained and so far
as is possible that number of seats out of the second 4 seats shall one by one
be allocated to the most successful unreturned candidates (if any) belonging
both to the most successful party and to the appropriate community or where
there is no unreturned candidate of the appropriate community, to the most
successful unreturned candidates belonging to the most successful party,
irrespective of community.
(5) In the
event that any of the 8 seats remains unfilled, then the following procedure
shall so far as is possible be followed until all (or as many as possible) of
the 8 seats are filled, that is to say, one seat shall be allocated to the most
successful unreturned candidate (if any) belonging both to the most successful
of the parties that have not received any of the 8 seats and to the appropriate
community, the next seat (if any) shall be allocated to the most successful
unreturned candidate (if any) belonging both to the second most successful of
those parties and to the appropriate community, and so on as respects any
remaining seats and any remaining parties that have not received any of the 8
seats.
(6) In the
event that any of the 8 seats still remains unfilled, then the following
procedure shall so far as is possible be followed (and, if necessary, repeated)
until all (or as many as possible) of the 8 seats are filled, that is to say,
one seat shall be allocated to the most successful unreturned candidate (if
any) belonging both to the second most successful party and to the appropriate
community, the next seat (if any) shall be allocated to the most successful
unreturned candidate (if any) belonging both to the third most successful party
(if any) and to the appropriate community, and so on as respects any remaining
seats and parties.
(7) Where
at any time before the next dissolution of Parliament one of the 8 seats falls
vacant, the seat shall as soon as is reasonably practicable after the
occurrence of the vacancy be allocated by the Electoral Supervisory Commission
to the most successful unreturned candidate (if any) available who belongs to
the appropriate community and to the party to whom the person to whom the seat
was allocated at the last general election belonged:
Provided that, where no candidate of the appropriate
community who belongs to that party is available, the seat shall be allocated
to the most successful unreturned candidate available who belongs to the
appropriate community and who belongs to such other party as is designated by
the leader of the party with no available candidate.
(8) The
appropriate community means, in relation to the allocation of any of the 8
seats, the community that has an unreturned candidate available (being a person
of the appropriate party, where the seat is one of the second 4 seats) and that
would have the highest number of persons (as determined by reference to the
results of the published 1972 official
census of the whole population of Mauritius) in relation to the number of seats
in the Assembly held immediately before the allocation of the seat by persons
belonging to that community (whether as members elected to represent
constituencies or otherwise), where the seat was also held by a person
belonging to that community:
Provided that, if, in relation to the allocation of
any seat, 2 or more communities have the same number of persons as aforesaid
preference shall be given to the community with an unreturned candidate who was
more successful than the unreturned candidates of the other community or
communities (that candidate and those other candidates being persons of the
appropriate party, where the seat is one of the second 4 seats).
(9) The
degree of success of a party shall, for the purposes of allocating any of the 8
seats at any general election of members of the Assembly, be assessed by
reference to the number of candidates belonging to that party returned as
members to represent constituencies at that election as compared with the
respective numbers of candidates of other parties so returned, no account being
taken of a party that had no candidates so returned or of any change in the
membership of the Assembly occurring because the seat of a member so returned
becomes vacant for any cause, and the degree of success of an unreturned
candidate of a particular community (or of a particular party and community) at
any general election shall be assessed by comparing the percentage of all the
valid votes cast in the constituency in which he stood for election secured by
him at that election with the percentages of all the valid votes cast in the
respective constituencies in which they stood for election so secured by other
unreturned candidates of that particular community (or as the case may be, of
that particular party and that particular community), no account being taken of
the percentage of votes secured by any unreturned candidate who has already
been allocated one of the 8 seats at that election or by any unreturned
candidate who is not a member of a party:
Provided that if, in relation to the allocation of any
seat, any 2 or more parties have the same number of candidates returned as
members elected to represent constituencies, preference shall be given to the
party with an appropriate unreturned candidate who was more successful than the
appropriate unreturned candidate or candidates of the other party or
parties.
(10) Any
number required for the purpose of subparagraph (8) or any percentage required
for the purposes of subparagraph (9) shall be calculated to not more than 3 places of decimals where it
cannot be expressed as a whole number.
[Amended 2/82; 36/82; 48/91]
ANNEX B
81. Appeals to the Judicial Committee
(1) An appeal
shall lie from decisions of the Court of Appeal or the Supreme Court to the
Judicial Committee as of right in the following cases –
(a) final
decisions, in any civil or criminal proceedings, on questions as to the
interpretation of this Constitution;
(b) where
the matter in dispute on the appeal to the Judicial Committee is of the value
of 10,000 rupees or upwards or where the appeal involves, directly or
indirectly, a claim to or a question respecting property or a right of the
value of 10,000 rupees or upwards, final decisions in any civil proceedings;
(c) final decisions in proceedings under section 17; and
(d) in such other cases as may be prescribed by
Parliament:
Provided that no such appeal shall lie from decisions
of the Supreme Court in any case in which an appeal lies as of right from the
Supreme Court to the Court of Appeal.
(2) An appeal
shall lie from decisions of the Court of Appeal or of the Supreme Court to the
Judicial Committee with the leave of the Court in the following cases –
(a) where
in the opinion of the Court the question involved in the appeal is one that, by
reason of its great general or public importance or otherwise, ought to be
submitted to the Judicial Committee, final decisions in any civil proceedings;
and
(b) in such
other cases as may be prescribed by Parliament:
Provided that no such appeal shall lie from decisions
of the Supreme Court in any case in which an appeal lies to the Court of
Appeal, either as of right or by the leave of the Court of Appeal.
(3) Subsections
(1) and (2) shall be subject to section 37(6) and paragraphs 2(5), 3(2) and
4(4) of the First Schedule.
(4) In this
section, the references to final decisions of a court do not include any
determination of a court that any application made to it is merely frivolous or
vexatious.
(5) Nothing
in this section shall affect any right of the Judicial Committee to grant
special leave to appeal from the decision of any court in any civil or criminal
matter.
[Amended 48/91]
