Matadeen v Pointu

JurisdictionUK Non-devolved
Judgment Date1998
Date1998
Year1998
CourtPrivy Council
[PRIVY COUNCIL] MATADEEN and Another Appellants and POINTU and Others Respondents and MINISTER OF EDUCATION AND SCIENCE and Another Co-Respondents [APPEAL FROM THE SUPREME COURT OF MAURITIUS] 1997 Nov. 26, 27; Dec. 1; 1998 Feb. 18 Lord Browne-Wilkinson, Lord Hoffmann, Lord Hope of Craighead, Lord Clyde and Gault J.

Mauritius - Constitution - Fundamental rights and freedoms - Complaint that amendment to school examination regulations amounting to unequal treatment of pupils - Whether constitutional redress available - Whether Constitution expressing general justiciable principle of equality - Whether need for conformity with international instrument requiring interpretation of Constitution incorporating equality provision - Mauritius Independence Order 1968, Sch., ss. 1, 3, 16 - International Covenant on Civil and Political Rights (1977) (Cmnd. 6702),

arts. 2(2), 26

For the purpose of determining which secondary school a child would attend, the Mauritius Examinations Syndicate conducted an annual Certificate of Primary Education examination, with children ranked in order of attainment in four compulsory subjects, English, French, mathematics and environmental studies. In March 1995 the Minister of Education and Science gave approval to amendments to the examination regulations so as to allow, with effect from the November 1995 examination, an optional fifth paper in one of a number of specified oriental languages. Candidates who sat the fifth paper would be ranked on their marks in English, mathematics and the best two out of the other three papers. The plaintiffs, whose children were due to take their examination in 1995 or 1996, brought proceedings against the minister in the Mauritius Supreme Court seeking a declaration that his decision involved discrimination which contravened sections 1, 3 and 16 of the ConstitutionF1 in that, by giving insufficient notice to commence study of an oriental language, it gave an unfair advantage to other pupils who had been following a course in such a language as a non-ranking subject. The parents of a number of such other pupils were given leave to be joined as co-defendants. The Supreme Court held that in construing the Constitution regard was to be had to the Declaration of the Rights of Man, adopted in 1793 when the island had been a French colony, and to article 26 of the International Covenant on Civil and Political Rights, F2 to which Mauritius was a party, both of which contained a right to substantive equality, and that the combined effect of sections 1 and 3 of the Constitution, so construed, was to confer a general right to equality of laws and executive actions enforceable by the courts. Having found that there was no objective justification for the inclusion of an oriental language in the examination at short notice, the court held that its effect was to place some pupils in an unequal position with regard to others in the same category and that, accordingly, the minister's decision had been unconstitutional and of no effect. The court made no finding on the complaint under section 16.

On the co-defendants' appeal to the Judicial Committee: —

Held, allowing the appeal, that on its true construction the Constitution of Mauritius entrenched the protection of the individual against discrimination only on a limited number of grounds and left the decision as to whether legitimate justification existed for other forms of discrimination or classification to the legislature or, subject to judicial review, to the minister or other public body; that, even on a reading of section 3 of the Constitution in accordance with the principle of democracy set out in section 1, neither the right of the individual to “the protection of the law” nor any of the other rights and freedoms enumerated in section 3 expressed a general principle of equality; that, similarly, since section 16 defined “discriminatory” as “affording different treatment to different persons attributable … to their respective descriptions by race, caste, place of origin, political opinion, colour, creed or sex,” it did not render unconstitutional laws which gave rise to inequalities of treatment on grounds falling outside those enumerated; that although the Declaration of the Rights of Man was a legitimate aid to the construction of section 3 of the Constitution, it could not be used to curtail the powers of decision which the Constitution conferred on Parliament in respect of discrimination falling outside the enumerated grounds in section 3; that the absence from the Constitution of a general principle of equality did not offend the requirement in article 2(2) of the International Covenant on Civil and Political Rights for state parties to give effect to article 26 thereof, since the rights recognised by the Covenant could be engrossed by the legal and political system of the state as a whole without the need for incorporation into constitutional law and the existence in Mauritius of procedures allowing parliamentary scrutiny of Bills and judicial review of administrative decisions was adequate compliance with article 26; and that, accordingly, since the inequalities of treatment complained of fell outside the grounds enumerated in sections 3 and 16 of the Constitution there were no grounds for constitutional redress (post, pp. 29F–H, 30G, 31E–F, 32H–33A, 35C).

Société United Docks v. Government of Mauritius [1985] A.C. 585, P.C. considered.

Decision of the Supreme Court of Mauritius reversed.

The following cases are referred to in the judgment of their Lordships:

Abdulaziz, Cabales and Balkandali v. United Kingdom (1985) 7 E.H.R.R. 471

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223; [1947] 2 All E.R. 680, C.A.

Belgian Linguistic Case (No. 2) (1968) 1 E.H.R.R. 252

Ireland v. United Kingdom (1978) 2 E.H.R.R. 25

Jaulim v. Director of Public Prosecutions [1976] M.R. 96

Lang & Co. v. Reid & Co. (1858) 12 Moo.P.C.C. 72

Massachusetts Board of Retirement v. Murgia (1976) 427 U.S. 307

Peerbocus v. The Queen [1991] M.R. 90

Police v. Rose [1976] M.R. 79

Poongavanam v. The Queen (unreported), 6 April 1992, Appeal No. 27 of 1989, P.C.

San Antonio Independent School District v. Rodriguez (1973) 411 U.S. 1

Société United Docks v. Government of Mauritius [1985] A.C. 585; [1985] 2 W.L.R. 114; [1985] 1 All E.R. 864, P.C.

State v. Zuma, 1995 (4) B.C.L.R. 401

Union of Campement Sites Owners and Lessees v. Government of Mauritius [1984] M.R. 100

University of California, Regents of the v. Bakke (1978) 438 U.S. 265

Zwaan-de Vries v. The Netherlands, U.N.H.R.C. Communication No. 182/84, 9 April 1987

The following additional cases were cited in argument:

Attorney-General of Canada v. Lavell [1974] S.C.R. 1349

Beau Plan S.E. v. Government of Mauritius (unreported), 23 September 1993, Supreme Court of Mauritius

Bhewa and Alladeen v. Government of Mauritius [1990] M.R. 79

Colonial Government v. Laborde [1902] M.R. 19

Fareed v. War Department [1945] M.R. 35

Garg v. Union of India, A.I.R. 1981 S.C. 2138

La Compagnie Sucrière de Bel Ombre Ltée v. Government of Mauritius [1995] M.R. 223, P.C.

Lincoln v. Governor-General [1974] M.R. 112

Minister of Home Affairs v. Fisher [1980] A.C. 319; [1979] 2 W.L.R. 889; [1979] 3 All E.R. 21, P.C.

Osman Yearoo v. Colonial Government [1932] M.R. 206

P.G. v. District Magistrate, Port Louis and Sadarally [1922] M.R. 3

Police v. Flore [1993] M.R. 106

Reg. v. Council of Legal Education, Ex parte Eddis (1994) 7 Admin.L.R. 357, D.C.

State v. Kanojia and Sheikh [1992] M.R. 169

Subramanien v. Government of Mauritius (unreported), 11 December 1995, Appeal No. 38 of 1994, P.C.

Thornhill v. Attorney-General of Trinidad and Tobago [1981] A.C. 61; [1980] 2 W.L.R. 510, P.C.

U.D.M. v. Governor-General [1990] M.R. 118

Vallet v. Ramgoolam [1973] M.R. 29

Appeal (No. 14 of 1997), by leave of the Supreme Court of Mauritius, by the co-defendants, Dharmdev Matadeen (Record No. 53810) and Yajjesswur Dinnoo (Record Nos. 53877 and 54203), both acting as fathers and legal administrators of their minor children, from the order of the Supreme Court of Mauritius (Boolell, Balancy and Lam Shang Leen JJ.) on 27 October 1995 whereby, on complaints claiming redress under section 17(1) of the Constitution of Mauritius brought by the plaintiffs, Marie Gerard Christian Pointu (Record No. 53810), Roland Emmanuel Mosses and 187 others (Record No. 53877) and Gerard Colin and 11 others (Record No. 54203), all acting in their personal capacities and as parents and/or legal administrators of their minor children, against the defendants, the Minister of Education and Science and the State of Mauritius, the court had held that the decision to include an oriental language for ranking purposes in future Certificate of Primary Education examinations was unconstitutional and accordingly of no effect. The plaintiffs Colin and others took no part in the appeal to the Judicial Committee.

The facts are stated in the judgment of their Lordships.

Alan Newman Q.C., Doorgesh Ramsewak Q.C. (of the Mauritius Bar) and Laura Elfield for the co-defendants.

Raymond D'Unienville Q.C. and Hervé Lassémillante (both of the Mauritius Bar) for the plaintiffs.

Geoffrey Cox and Dheerendra Dabee (of the Mauritius Bar) for the defendants.

Cur. adv. vult.

18 February 1998. The judgment of their Lordships was delivered by Lord Hoffmann.

1. The Certificate of Primary Education

This appeal concerns the constitutional validity of new regulations for the Certificate of Primary Education examination (“C.P.E.”) issued by the Mauritius Examination Syndicate in March 1995 and intended to apply to the examinations taken in November 1995 and thereafter. The C.P.E. is taken by all children in Mauritius at the end of standard 6, their last year in primary school. There are four compulsory subjects: English, mathematics, French and environmental studies (formerly called geography). Children who take the examination are ranked...

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