State of Mauritius v Khoyratty
| Jurisdiction | UK Non-devolved |
| Judge | Lord Steyn,Lord Rodger of Earlsferry,Lord Mance |
| Judgment Date | 22 March 2006 |
| Neutral Citation | [2006] UKPC 13 |
| Court | Privy Council |
| Docket Number | Appeal No 59 of 2004 |
| Date | 22 March 2006 |
[2006] UKPC 13
Present at the hearing:-
Lord Rodger of Earlsferry
Lord Steyn
Lord Carswell
Lord Mance
Sir Swinton Thomas
Privy Council
[Delivered by Lord Steyn]
Bail in Mauritius.
The institution of bail in Mauritius, and the principles which should guide the courts in exercising their discretion to grant or withhold bail, have been explained in earlier cases. In Hurnam v The State [2005] UKPC 49, Lord Bingham of Cornhill summarized the tensions and countervailing arguments which can arise in such cases.
He stated [para 1]:
"In Mauritius, as else where, the courts are routinely called upon to consider whether an unconvicted suspect or defendant should be released on bail, subject to conditions, pending his trial. Such decisions very often raise questions of importance both to the individual suspect or defendant and to the community as a whole. The interest of the individual is of course to remain at liberty, unless or until he is convicted of a crime sufficiently serious to justify depriving him of his liberty. Any loss of liberty before that time, particularly if he is acquitted or never tried, will inevitably prejudice him and, in many cases, his livelihood and family. But the community has a countervailing interest, in seeking to ensure that the course of justice is not thwarted by the flight of the suspect or defendant or perverted by his interference with witnesses or evidence, and that he does not take advantage of the inevitable delay before trial to commit further offences."
Historically, in Mauritius, granting or withholding of bail was treated as a classic judicial power and duty. This is demonstrated by the functions and processes of the courts of law.
An attempt to curtail bail.
In 1986 by ordinary legislation Parliament passed the Dangerous Drugs Act (Act No 32 of 1986) which contained a prohibition on the grant of bail in respect of specific offences. In Nordally v Attorney General [1986] MR 204 the Supreme Court held that this statute was inconsistent with the Constitution. The court observed that the trial of persons charged with criminal offences and all incidental or preliminary matters pertaining thereto are to be dealt with by an independent judiciary. Addressing the matter of bail, the court concluded (at p 208) that it was not in accord with the letter or spirit of the Constitution, as it then stood, to legislate so as to enable the executive to overstep or bypass the judiciary in its essential roles. This judgement left open the possibility of removing from the courts the jurisdiction to withhold bail by constitutional amendment in specific classes of cases. It is a possibility which was not overlooked.
Restricting bail by constitutional amendment.
Subsequently an attempt was made to curtail the jurisdiction of the court to grant or withhold bail. It was sought to be accomplished by a two-fold legislative method viz an amendment to the Constitution made in 1994 and a re-anactment of the Dangerous Drugs Act in 2000.
The constitutional amendment was contained in section 5(3A) of the Constitution, as inserted by section 2 of the Constitution of Mauritius (Amendment) Act 1994 (Act No 26 of 1994). The setting of section 5(3A) was the existing section 5(3) which reads:
ldquo;(3) Any person who is arrested or detained
and who is not released, shall be afforded reasonable facilities to consult a legal representative of his own choice and shall be brought without undue delay before a court; and if any person arrested or detained as mentioned in paragraph (b) is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including, in particular, such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial; and if any person arrested or detained as mentioned in paragraph (c) is not brought before a court within a reasonable time in order that the court may decide whether to order him to give security for his good behaviour, then, without prejudice to any further proceedings that may be brought against him, he shall be released unconditionally."
The new section 5(3A)(a) and (b) as amended by section 2 of the Constitution of Mauritius (Amendment) Act 2002 (Act No 4 of 2002) reads:
ldquo;(3A)(a) Notwithstanding subsection (3), where a person is arrested or detained for an offence related to terrorism or a drug offence, he shall not, in relation to such offences related to terrorism or drug offences as may be prescribed by an Act of Parliament, be admitted to bail until the final determination of the proceedings brought against him, where-
(b) A Bill for an Act of Parliament to prescribe the offences relating to terrorism or drug offences under paragraph (a) or to amend or repeal such an Act shall not be passed by the Assembly unless it is supported at the final voting in the Assembly by the votes of not less than three quarters of all the members of the Assembly."
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(a) for the purpose of bringing him before a court in execution of the order of a court;
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(b) upon reasonable suspicion of his having committed, or being about to commit a criminal offence; or
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(c) upon reasonable suspicion of his being likely to commit breaches of the peace,
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(i) he has already been convicted of an offence related to terrorism or a drug offence; or
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(ii) he is arrested or detained for an offence relating to terrorism or a drug offence during the period that he has been released on bail after he has been charged with having committed an offence relating to terrorism or a drug offence.
Section 32 of the Dangerous Drugs Act 2000 (Act No 41 of 2000) contains a restriction of bail in certain classes of cases. It provides:
ldquo;(1) Notwithstanding any other enactment, where a person is arrested or detained for an offence under sections 30, 33, 35, 36 or 39 of this Act, he shall not be admitted to bail until the final determination of the proceedings brought against him where-
(2) For the purposes of this section, 'drug offences' includes an offence under the Dangerous Drugs Act."
The offences incorporated by reference are as follows: section 30 (drug dealing offences), section 33 (offences regarding production), section 35 (offering or selling for personal consumption), section 36 (facilitating or permitting drug offences), section 38 (inciting to drugs offences or unlawful use) and section 39 (money laundering).
The attempted enforcement of the new regime.
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(a) he has already been convicted of any drug offence; or
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(b) he is arrested or detained whilst on bail in relation to a drug offence.
On 27 October 2003 a provisional information was lodged against the respondent charging him with possession of 3 grams of heroin for the purpose of selling, contrary to sections 30(1)(f)(ii), 45(1) and 47(5) of the Dangerous Drugs Act 2000 as amended by the Dangerous Drugs Act (Amendment) Act 2003 (Act No 29 of 2003). On the same day, a motion for bail was lodged with the District Court. The police objected to bail on the ground that under the new dispensation the court had no power to grant bail. It was common ground that the respondent was caught by the relevant restrictions on bail if they were constitutionally valid. A District Magistrate in October, November and December 2003 took the view that questions of constitutional interpretation under section 84 of the Constitution had been raised and he therefore referred the following questions to the Supreme Court on 5 January 2004:
ldquo;(a) whether by amending section 5 of the Constitution through the addition of the new sub-section 5(3A) Parliament in its constituent capacity has not altered the fundamental tenet of the Constitution; the Separation of Powers, to wit: the check and balance aspect?
(b) by what majority can Parliament in its constituent capacity alter the separation of powers; the argument being that if a Constitutional (Amendment) Act is not supported at the final voting by the prescribed majority of votes, then it cannot be read as one with the Constitution; the alteration it purports to make cannot become part of the Supreme Law and that Act is void to all intents and purposes;
(c) is it constitutional to allow the Executive to detain a citizen indefinitely on a provisional charge of 'drug dealing' for instance without the judiciary being in a position to control the Executive and afford protection to the citizen as regards his personal liberty and his fundamental human right of being protected from inhuman or degrading or other such treatment as prohibited by section 7 of the Constitution?"
The principal questions posed were whether the new regime was consistent with section 1 and section 7 of the Constitution.
Section 1 provides:
"Mauritius shall be a sovereign democratic State which shall be known as the Republic of Mauritius."
Since 1991 section 1 has been deeply entrenched in the sense that it could only be amended in accordance with section 47(3) of the Constitution (see para 16 below). Section 7(1) provides:
"No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment."
Section 47(2) provides that section 7 may not be altered by less than three quarters of the members of the Assembly.
After a careful review the Supreme Court (Y K J Yeung Sik Yuen SPJ and P Lam Shang Leen J) came to the following conclusions:
"In the particular context of our Constitution, more specially in the light of our notion of democracy as is contained in section 1, we are of the opinion that section 5(3A), although it is compliant with section 47(2), [having admittedly been voted with...
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