The Supreme Court judgment (2004 SCJ 138), delivered by Senior Puisne Judge Bernard Sik Yuen and Judge Paul Lam Shang Leen on 9 June 2004, is both revolutionary and historic. It is revolutionary for it runs counter to conventional Supreme Court wisdom. It is historic because, never before in the history of independent Mauritius, has a Supreme Court ruling been declared unconstitutional, and therefore null and void, an amendment to the Constitution duly passed by Parliament in the exercise of its constituent powers. Furthermore, it makes juris-prudence because legislations may now have to pass the test of democracy as spelt out in Section 1 to the Constitution which states: “Mauritius shall be a sovereign democratic state which shall be known as the Republic of Mauritius.”

The judgment will, no doubt, be profusely quoted in subsequent pronouncements of the Supreme Court. It will be used as a judicial precedent in the future. It may also open the floodgates for any aggrieved party to challenge legislation on the grounds of its alleged inconsistency with Section 1 of the Constitution.

<B>Salutary judgement</B>

Let me say at the outset that this generous and liberal interpretation of the Constitu-tion is most welcome. It has come as a breath of fresh air. Such interpretation can only serve to consolidate the nature of our parliamentary democracy based on the sacrosanct principles of the Rule of law, the Separation of powers and (not less important) the sovereignty of Parliament. This interpretation also helps to ensure that the ruling political elite do not abuse the three-quarter majority which they often hold, due to our electoral system, to destroy the underlying features of our parliamentary democracy. The Supreme Court judgement is, therefore, most welcome.

<B>Supreme Court–Sole Interpreter</B>

The purpose of this article is to analyse the historic judgment and to see whether a different interpretation of the Constitution was not possible with regard to the Constitutional amendment (Section 5(3A)) and to the amendment brought to Section 32 of the Dangerous Drug Act in 2000. I hasten to say that this is a purely academic exercise by a political scientist who has always shown a keen interest in the Constitution. Let this be clear. The intention is not to give any lessons to the authorities concerned. Far from it. The Supreme Court is, after all, the only institution mandated to act as guardian of the Constitution. The Supreme Court is empowered, as per Section 2 of the Constitution, to interpret and to strike down any law, which it considers to be repugnant to the spirit and the letter of the Constitution. The Supreme Court’s interpretation of the Constitution, unless disallowed by the Privy Council, is binding on the authorities namely the Legislature, the Executive and the Judiciary.

<B>Impugned Section 5(3A) of Constitution </B>

It is abundantly clear that the new section 5(3A) added to the Constitution (in 1994) offends the sacrosanct principle of the separation of powers as it purports to deny bail until the final determination of the proceedings, to a person arrested or detained for a drug offence if that person has had a previous conviction related to drug offence or if after he has been arrested or detained for a drug offence, is released on bail and during that period is again arrested or detained for a drug related offence.

Their Lordships rightly argue, quoting the situation obtaining in various democracies that the granting or denial of bail in a democracy is a purely judicial function. The legislator can provide guidance when bail should not be granted but the decision to grant or deny bail rests with the judiciary. The newly amended Section 5(3A) of the Constitution makes it mandatory on the court to refuse bail to drug-related offenders.

Accordingly the constitutional amendment, the court argues rightly, is a gross violation of the hallowed principle of the separation of powers. By passing such an amendment to the Constitution, the legislature has usurped the role of the judiciary. Such an amendment violates Section 1 of the Constitution, which lays down that Mauritius shall be a democratic state, one of the fundamentals being the separation of powers.

Their lordships also argue that the amendment offends against Section 7 of the Constitution, which guarantees citizens protection against torture, inhuman or degrading punishment. A refusal of bail to persons arrested on a drug-related offence coupled with long detention in a police or prison cell pending the final determination of the case is inconsistent with Section 7. Thus, the Court concludes, that the constitutional amendment 5 (3A) offends both Sections 1 and 7 of the Cons-titution and accordingly should be struck down.

<B>Amendment passed in prescribed form</B>

I am tempted to side with the hitherto conventional Supreme Court wisdom to the effect that any amendment to the Constitution, which has been passed by the prescribed majority in Parliament, becomes one with the Constitution, that is, part of it. Such an amendment cannot, to my mind, be challenged on the grounds that it contradicts the philosophy of the Constitution implied in section 1.

Once a constitutional amendment has been passed in the prescribed form, one cannot argue that it is inconsistent with the other clauses of the Constitution. The amendment once passed is deemed to amend any inconsistencies existing in the other provisions of the Constitution. I would like to quote Lincoln and Ors v the Governor General and Ors (1974MR112) “(2). The power to amend the Constitution conferred upon Parliament by Section 47 was subjected only to the requirements laid down in that Section, that is to say, was conditioned upon the bill being supported by a specified number of vote in the Legislative Assembly. Beyond that no restriction was placed by the Constitution on the amplitude of Parliament’s power to alter its provisions.”

<B>A democratic state</B>

It has become a well established convention that the Court does not attempt to define democracy with reference to Section 1 as it will be trespassing the political zone. Thus the Court does not decide, for example, whether the abolition of by-elections is compatible with a democratic state or whether a constitutional amendment act purporting to curb the powers of the Judiciary is repugnant to Section 1 of the Constitution which guarantees that Mauritius shall be a democratic state. However, whenever restrictions of fundamental rights, as laid down in chapter II of the Constitution, are imposed in the interest of public safety, public order, public health or the security of the State, the Court is empowered to decide whether such restrictions are reasonably justifiable in a democratic society. For that purpose, it is incumbent on the Court to decide the norms of a democratic society.

No doubt their Lordships must have found the constitutional amendment so obnoxious to the spirit and the letter of the Constitution, in that it is grossly inconsistent with Section 1, which they (perhaps rightly) consider to be of overriding importance that they concluded that amendment 5(3A) to the Constitu-tion is unconstitutional. This, notwithstanding the fact that there is another well-settled jurisprudence that I would like to call conventional Supreme Court wisdom namely, that whenever an amendment has been passed with the prescribed majority, it is deemed to be constitutional. It cannot be said to be in conflict with the Constitution.

<B>Alteration to the Constitution </B>

Section 47 of the Constitution empowers Parliament to amend the Constitution. As laid down in Section 47(2), a Bill for an Act of Parliament to alter the provisions of the Constitution must be passed according to the prescribed majorities of two-thirds or three-quarter or a referendum approved by three-quarter of the electorate followed by an unanimous vote in Parliament.

Alteration is defined in Section 47(5) of the Constitution – it may even mean revoking the Constitution, that is the whole Constitution along with all its provisions.“With or without re-enactment or the making of different provisions or suspending its operations for any period.”

It follows, therefore, that the whole Constitution can be scrapped given the prescribed three-quarter parliamentary majority! I would also like to add that Section 47(2) (a) provides for the alteration of the provisions of the Section itself (Section 47) with a three quarter majority. Thus the Constitutional provisions of a referendum followed by a unanimous vote as laid down in 47(3) can itself be altered by a three-quarter parliamentary majority! What, therefore, appears as cast-iron guarantees to ensure (1) the holding of elections at five-year intervals and (2) the democratic nature of the State can turn out to be mere paper guarantees!!

Perhaps there is a strong case to amend the Constitution to render it genuinely binding for a referendum to be held before any amendment can be made to the entrenched clauses of the Constitution. However, as the Constitution now stands, all its provisions are at the mercy of a three-quarter parliamentary majority.

<B>Presumption of constitutionality</B>

Faced with the possibility of two interpretations of any law, one which renders it constitutional, another one, which renders the same act unconstitutional, the conventional wisdom of the Court has, so far, assumed the presumption of constitutionality. Any act of Parliament and, the more so, any constitutional amendment act, is presumed to be constitutional once it has been passed by the prescribed majority in Parliament. Thus, I am of opinion that the constitutional amendment act should be deemed to be constitutional. Never before, since we acceded to independence in 1968 and the independent Constitution came into force, has the Supreme Court found a duly passed constitutional amendment unconstitutional. Indeed several constitutional amendments, for examples, one postponing general elections in 1969 or another abolishing by-elections in 1973 have been challenged in Court on the grounds that they of-fend Section 1 to the Cons-titution. The Supreme Court has always ruled that amendments to the Constitution carried out with the prescribed majorities are constitutional.

Perhaps their Lordships have found the amended Section 5(3A) of the Constitution so offensive and so contrary to democratic principles and practices in their encroachment on the powers of the judiciary that they feel they cannot condone such repugnant practices regardless of the possibility that the constitutional amendment act can be construed to be perfectly constitutional.

<B>Sovereignty of Parliament</B>

One of the fundamental tenets of a parliamentary democracy based on the Westminster model is the sovereignty of Parliament. Sovereignty means complete, unbridled, supreme power. Thus, under the Mauritian system of government and politics, Parliament holds supreme power. Parliament is sovereign. This is emphasized by Section 45 (1) by investing the law-making power in Parliament.

However the power of Parliament to make laws is subject to the Constitution, that is, the laws passed by Parliament may have to stand the test of constitutionality. Section 45(1) reads: “Subject to this Constitution, Parliament may make laws for the peace, order, and good government of Mauritius.”

Thus all laws passed by Parliament must conform to the letter and spirit of the Constitution. The Supreme Court, the guardian of the Constitution, is empowered as per Section 2, to strike down any law, which it considers to be inconsistent with the Constitution. Section 2 to the Constitution is clear: “This Constitution is the supreme law of Mauritius and, if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.”

Thus it would appear that sovereignty in Mauritius lies not with Parliament but rather with the Constitution. It is not only the laws passed by Parliament, which have to stand the test of constitutionality but also all decisions of the Executive, that is the Cabinet, all decisions of civil servants, all actions of the Commissioner of Police must be constitutional, failing which they would be declared null and void by the Supreme Court.

Notwithstanding the status of the Constitution as the supreme law of the land, Section 47 empowers Parliament to pass a Bill amending the Constitution with the prescribed majorities of two-thirds, or three-quarter, or unanimity.

Even in the two cases where a referendum approved by a three-quarter majority of the electorate must first be held, a Constitutional Amendment Bill has to be introduced in Parliament where it must obtain a unanimous vote.

Hence the doctrine of Sovereignty of Parliament, as is the case in all parliamentary democracies based on the Westminster model, reigns supreme. Even when after three quarters of the electorate have approved the postponement of the elections or has agreed to change the nature of our Republic e.g. restoration of constitutional monarchy, we must again have recourse to Parliament where a unanimous vote is required.

One can also argue that, in the final analysis, sovereignty lies with the people, for the people can vote the legislature out of office! However, to all intents and purposes, Parliament is sovereign. In between two elections, Parliament wields total power.

<B>No supranational authority determining our conduct</B>

There is no supra neither national authority, nor any international convention whose dictates can be binding on the Republic of Mauritius. Section 2 clearly states that the Constitution is the supreme law of the land. We have to abide by what contains in our Constitution. Democratic practices followed by other countries with reference to the granting or denial of bail, democratic practices based on statutes or conventions followed by UK are not mandatory on us. They may certainly be helpful as guidelines but are not binding on the behaviour of the political elite still less the judicial elite. We can only be bound by the provisions of the Constitution which is the supreme law of the land.

<B>Separation of powers</B>

Locke and Montesquieu advocacy of the separation of powers between the three branches of Government – Legislature, Executive and Judiciary, as an antidote against any form of dictatorship or any totalitarian tendencies, does not exist in its purest form in Westminster based parliamentary democracies. The only form of separation of powers existing in such democracies, including Mauritius, is an independent judiciary coupled with a respect for the fundamental rights and freedoms of the individual, along with a set of checks and balances to ensure accountability and the Rule of Law. Our Constitution, it should be noted, does not explicitly mention the separation of powers.

Chapter VII provides for an independent judiciary by making provisions for the appointment of judges by a Judicial and Legal Service Commission, by providing security of tenure to judges who are practically irremovable, once appointed, and by ensuring that their salaries and allowances are not subject to scrutiny by Parliament. All these guarantees, however, can be abolished by a three-quarter parliamentary majority!

Note that although the Constitution does not provide explicitly for the separation of powers, the doctrine is implicit in the provisions for an independent judiciary. However, as we have seen above, the whole of Chapter VII can be abrogated by a three-quarter parliamentary majority. Hence, not only can Parliament abolish the Supreme Court but the whole Judiciary itself can be abolished by a three quarter majority! It is blood-curdling to realize that it will not be unconstitutional for any ill-intentioned government to abolish the Judiciary and thus put an end to our adherence to the doctrine of the separation of powers!

<B>Constitutionality of the amended 2000 version of the DDA</B>

His Lordships Senior Puisne Judge Sik Yuen and Judge Lam Shang Leen found Section 32 of the Dangerous Drug Act (DDA) to be unconstitutional as it offends Sections 1 and 7 of the Constitution.

Pursuant to the new Section 5 (3A) of the Constitution, Parliament amended the DDA with a three quarter majority and Section 32 of the law provides, as per the Constitution, that a person arrested for drug offence“… shall not be admitted to bail until the final determination of the proceedings brought against him where – he has already been convicted of a drug offence; or he is arrested or detained whilst on bail in relation to a drug offence.”

The amendment of the DDA was passed by a three-quarter majority as specified in 5(3A) (b) of the Constitu-tion. Thus the law was passed in the prescribed form. The requirement of a three-quarter majority is to give a guarantee that such amendment, which restricts the right to liberty of the individual would not be passed by simple majority as ordinary legislation.

It is difficult to envisage how an act, which has been passed mandatory by Parliament and, moreover in the prescribed form, can be deemed to be unconstitutional. Parliament is free to decide on a special majority of three-quarters for certain bills. This has already been done with regards to a bill deciding on the quantum of compensation paid to those whose assets have been compulsorily acquired.

It is to be emphasised that, after their pronouncement that the new Section 5 (3A) of the Constitution is unconstitutional, their Lordships cannot, but declare Section 32 of the DDA to be unconstitutional, in order to be consistent with their earlier findings. Their ruling of unconstitutionality with regard to Section 32 of the DDA is once again on the grounds that it is at variance with the provisions of Sections 1 and 7 of the Constitution.

<B>Section 7 of the Constitution</B>

Perhaps we should say a word on Section 7 of the Constitution. This Section provides for protection against inhuman treatment, torture or degrading punishment. It has not really been argued but is implicit in the argument of their Lordships that a long detention pending the final determination of the case amounts to torture, inhuman treatment or degrading punishment. However it must be proved in Court that the detainee is subjected to degrading treatment – for example, food dished out to him contains cockroaches or his cell is infested with rats, or he is physically tortured and beaten up during the period of detention pending his trial. We fail to see how a long period of detention, per se, pending his trial, in the absence of concrete examples of ill-treatment, can be equated to torture or inhuman treatment, unless it is mental torture but then all detentions amount to mental torture. If long detention is construed as amounting to mental torture we will have to release all the prisoners who have been detained for a long period of time waiting for their trial!

It is certainly highly deplorable that a person accused of a serious offence – murder, drug, and terrorist activities - has to wait an unduly long period, kept in detention during the police enquiries in a police cell and then remanded in a prison cell pending his trial and the final determination of his case. Perhaps there is an urgent need for the Director of public prosecutions to ensure that the formal charges, if any, are brought without undue delay, and for the “the adoption of a fast track procedure” - to ensure that no person should be kept in custody pending his trial “for a length of time that is unreasonable or unwarrantable” as recommended recently by Hons Justices Asraf Caunhye and Nalini Matadeen.

<B>Conclusion</B>

To conclude we make bold to say that the judgement, by casting aside all the collective wisdom of previous Supreme Court judgements, is a great “avancée démocratique” in that it finds Section 1 of the Constitution so compelling as to warrant the curtailment of the constituent powers of Parliament and, in the process, undermining the sovereignty of Parliament itself, the cornerstone of a parliamentary democracy based on the Westminster model.

The complete overturn of previous Supreme Cour pronouncements brings to our mind the historical Brown versus Board of Education rulings in the United States Supreme Court. In these rulings, differently constituted US Supreme Courts have given different interpretations as to whether the provisions of separate but equal educational facilities to white and black children are constitutional or not. At one time, the US Supreme Court argues that separate can be equal and, therefore, rules that the separate but equal educational facilities are constitutional. In a different ruling, years afterwards, the Court declares that separate cannot be equal and, accordingly, concludes that separate but equal educational facilities for white and black children are unconstitutional!

With regard to the Judgement of our own Supreme Court (SCJ138 of 2004), lovers of democracy would have strongly wished matters to rest here and that this great “avancée démocratique” is maintained and consolidated further in future Court pronouncements.

However this could only prove a mirage – an illusion – nay simply wishful thinking. An appeal against the judgment may bring back the harsh realities of the sovereignty of Parliament which should, obligatory prevail in a parliamentary democracy based on the Westminster Model.

<I>Professor Raj MATHUR</I>