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- Publisher
- Oxford University Press
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- © The Author(s) 2016. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected].
- ISSN
- 0144-3593
- eISSN
- 1464-3863
- DOI
- 10.1093/slr/hmw047
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Abstract
Abstract For many years, the Supreme Court of Mauritius, the Court, has grappled with the question of whether international law is part of Mauritian law. In order to answer this question, the Court has dealt with two issues: Are treaties which have been ratified by Mauritius but not yet domesticated part of Mauritian law? And is customary international law part of Mauritian law? Both these questions are not answered in the Mauritian Constitution or in any legislation in Mauritius. The purpose of this article is to review the case law of the Supreme Court of Mauritius and show how the Court has dealt with these issues in its attempt to reconcile the tension between international law and Mauritian domestic law. The jurisprudence shows that the Court is inconsistent when dealing with the question of whether treaties which have not been domesticated impose domestic obligations on Mauritius. The author recommends that in order to bring this inconsistency to an end, the Constitution may have to be amended. 1. INTRODUCTION Unlike the Constitutions of South Africa1 and Zimbabwe2 which oblige courts to consider international law in interpreting legislation, including the constitution, the Mauritian constitution is silent on the role of international law in interpreting legislation. However, in interpreting legislation, the Mauritian Supreme Court has referred, not only to international human rights instruments ratified by Mauritius, such as the International Covenant on Civil and Political Rights (ICCPR), but also to the European Convention on Human Rights, the American Convention on Human Rights, and the Universal Declaration of Human Rights. The Court has also relied heavily on the jurisprudence of the European Court of Human Rights and to a limited extent of the Human Rights Committee in interpreting legislation. However, there is no reported case in which the Court has referred to an African human rights instrument, such as the African Charter on Human and Peoples’ Rights or the jurisprudence of the African Commission on Human and Peoples’ Rights notwithstanding the fact that Mauritius has ratified many African human rights instruments and the African Commission on Human and Peoples’ Rights has developed rich jurisprudence on human rights.3 The Court’s jurisprudence is not clear on the legal status of treaties which have not been domesticated in the interpretation of legislation. The purpose of this article is to highlight the Court’s jurisprudence relying on international law, especially treaties, in interpreting legislation. The author recommends that the Constitution may have to be amended to provide for clear guidelines on the role of international law in interpreting legislation and the Constitution. There is also is a need for the Court to draw on the jurisprudence of the African Commission on Human and Peoples’ Rights. The author will start by dealing with the issues of how Mauritius becomes party to international treaties and the status of these treaties in Mauritius. 2. HOW MAURITIUS BECOMES A PARTY TO INTERNATIONAL TREATIES There are two ways through which Mauritius has become a party to international treaties. The first one is through ratification. Mauritius has ratified or acceded to a number of international treaties. The second one is through succession. At independence, Mauritius succeeded many treaty obligations arising from the treaties that had been entered into by the United Kingdom. In a letter dated 12 March 1968, the then Mauritian Prime Minister and Minister of External Affairs informed the Secretary General of the United Nations that: (a) the Government of Mauritius acknowledged that ‘many treaty rights and obligations of the Government of the United Kingdom in respect of Mauritius were succeeded by Mauritius upon independence by virtue of customary international law’; (b) ‘it is desired that it be presumed that each treaty has been legally succeeded to by Mauritius and that action be based upon this presumption until a decision is reached that it should be regarded as having lapsed. Should the Government of Mauritius be of the opinion that they had legally succeeded to a treaty but subsequently wish to terminate its operation, they will in due course give notice of termination in the terms thereof’4 This means that all the treaties ‘…are to continue in existence and to be considered as binding” on Mauritius “until such time as decisions could be made in regard to them and as to which of them should be terminated and what should be continued”’.5 The Supreme Court has held that the principle of succession of treaties is derived from customary international law.6 It is important to discuss how the Supreme Court has relied on treaties when interpreting legislation including the Constitution. The first issue the Court has dealt with is the legal status of international treaties in Mauritius. It is to this issue that we turn. 2.1. Status of International Treaties in Mauritius The Mauritian constitution is silent on the issue of whether or not treaties are part of Mauritian law. This means that the Supreme Court has had to clarify this issue. The Supreme Court held that ‘Whether an international treaty is binding or not is a matter of expert evidence’.7 The Supreme Court held in 1956, based on English law, that a treaty has to be domesticated if it is to have force of law in Mauritius.8 In Peerbocus v. R,9 the Court held that: [A]lthough the Conventions to which Mauritius has adhered since independence cannot in municipal law prevail over the provisions of the Constitution, one may legitimately look at the obligations to which, as an independent and sovereign state, Mauritius has, of its own free will, decided to submit itself to consider the extent of the fundamental rights which the citizens are supposed to enjoy.10 The fact that international treaties have to be domesticated before they can become part of Mauritian law was emphasized by the Supreme Court in Michael Rex Jordan v. Marie Martine Jordan.11 One of the issues in the case was whether the Hague Convention on the Civil Aspects of International Child Abduction, which was ratified by Mauritius but not domesticated, was part of Mauritian law. The lawyer for the appellant argued that although the Hague Convention had ‘not been incorporated in the municipal laws of Mauritius…there was no need of such incorporation before the Mauritius Court could be guided by it’ this is because ‘[t]he Constitution…does not say that our Courts should not be guided by Treaties and Conventions’.12 He added that section 3 of the ‘Constitution provides for the right of the individual to the protection of the law which includes not only statutes but also unwritten laws’.13 The lawyer also argued, inter alia, that under Articles 26, 27, and 46(1) of the Vienna Convention on the Law of Treaties, Mauritius should not invoke its domestic law to defeat its international obligations.14 The Court referred to the Vienna Convention on the Law of Treaties and held that: Those provisions of the Vienna Convention in fact concern the obligations of the State under International Law and not the different question of the application of international law by domestic Courts. Whilst it is a well-recognised canon of interpretation that domestic legislation should, if possible, be construed so as to conform to international instruments to which the State is a party…it is the practice in Mauritius that any treaty or convention must as a rule be incorporated into its domestic law before the Courts will take cognizance of it. ‘Ius Cogens’ or rules of customary international law which are usually recognised by all civilised nations are the exceptions since they do not require any formal incorporation before they are acknowledged by domestic Courts.15 The Court referred to jurisprudence from English courts to the effect that ‘common law incorporates rules of customary international law’.16 It added that Treaties which relate more to Private International Law matters and which deal principally with the private rights of the citizens can hardly escape the requirement of prior incorporation into domestic laws. The mechanism used to integrate conventional norms into domestic laws before these are in turn interpreted and applied by domestic Courts may differ from country to country.17 It then gave examples from France and the United Kingdom of how international law becomes part of domestic law18 before concluding that in Mauritius there is a doctrine of separation of powers which, inter alia, empowers the executive to sign or ratify international treaties and parliament to enact the enabling legislation to domestic such treaties.19 It concluded that ‘[i]f our domestic legislation has not been brought into line with the Hague Convention for Mauritius to comply with its international obligations, the Judiciary can only make the relevant observations’.20 In this case, the Court makes it very clear that if a treaty has not been domesticated, Mauritian courts will not take it as imposing obligations on Mauritius. This view was reiterated in Federation Mauricienne De Triathlon & Anors v. Hao Thyn Voon Ha Shun & 8 Ors21 in which the Supreme Court held that: [T]here has so far been no pronouncement of the Supreme Court of Mauritius on the legal status of the Olympic Charter but foreign jurisdictions have assimilated it to customary international law…True it is that the Olympic Charter creates legal obligations on Mauritius, which obligations are incorporated in the Sports Act (the ‘Act’). However, that does not give a right to the MNOC [Mauritius National Olympic Committee] to override our Constitution and transcend our nation state to give higher allegiance to an organization outside our country without the proper procedure due to our system of law which is a dualist system. Under the dualist system of government, any agreement with an international body does not become binding to our people unless and until, they have been incorporated in our legislation. Any international body does not begin regulating our activities under our concept of the nation state without its diktat having been incorporated upfront in our legislation.22 If an international treaty is domesticated by a Mauritian legislation, Mauritian courts have jurisdiction to enforce its provisions in Mauritius. For example, in Cruz City 1 Mauritius Holdings v. Unitech Limited & Anor,23 the applicants approached court for the recognition in Mauritius of foreign awards which had been issued by a tribunal in the United Kingdom. The Court observed that: These applications which are brought under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001 (the 2001 Act) are the first to be adjudicated upon by this Court as set up pursuant to section 42 of the International Arbitration Act 2008 (the IAA). The 2001 Act gives force of law in Mauritius to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) signed on 10 June 1958.24 The respondents argued that the recognition of the awards would be contrary to various articles of the New York Convention and sections of the Mauritian constitution.25 Mauritius domesticated the United Nations Convention on the Law of Sea and the Supreme Court has relied on it to determine whether or not the accused had committed an offence of piracy on the high seas.26 In the light of the above judgments, treaties which have not been domesticated by Mauritius do not form part of Mauritian law and therefore do not impose domestic obligations on Mauritius. This brings us to the question of whether the Court may rely on those treaties to assess whether Mauritian law, including the constitution, is in line with her international obligations. 3. RELYING ON TREATIES TO INTERPRET LEGISLATION INCLUDING THE CONSTITUTION: THE UNCLEAR POSITION Case law shows that the Supreme Court has taken different approaches on the issue of relying on treaties to interpret legislation including the Constitution. Firstly, it has held that treaties which have not been domesticated are not part of Mauritian law and therefore cannot be relied on to interpret legislation. Cases on this position have been discussed above. Secondly, it has relied on treaties whether or not domesticated to interpret legislation and assess whether that legislation complies with the treaties. Thirdly, it has referred to treaties to show that the rights in the Constitution are also provided for under these treaties. As mentioned earlier, the Mauritian Constitution does not empower the Court to refer to international law in interpreting the Constitution. This raises the question of the role of international law in interpreting the Constitution. The Privy Council held that: In reaching its conclusion on justification the Supreme Court paid close attention not only to the Constitution but also to the UNESCO Convention against Discrimination in Education (1960) and the UN International Covenant on Economic, Social and Cultural Rights (1966). It is unnecessary to review the detailed provisions of those instruments, or others referred to in argument, since in the opinion of the Board the Constitution is clear and unambiguous and must be given effect as the supreme law of Mauritius. It is…a well recognised canon of construction that domestic legislation, including the Constitution, should if possible be construed so as to conform to international instruments to which the state is party. But here the interpretation of the Constitution is clear, and although some of the international instruments cited permit, in strictly defined circumstances, a measure of differentiation on religious grounds, they certainly cannot be said to require it, and the Constitution violates no internationally accepted principle by precluding discrimination on grounds of religion to the extent it does.27 The above holding raises the following important points. One where the Constitution is clear, it must be given effect to as the Supreme law of the land. In such a case there is no need to refer to international law. Two, if possible, domestic legislation should be interpreted to conform to international instruments to which the state is party. This means that sometimes it may not be possible to interpret domestic legislation to conform to international instruments to which a state is party. The Privy Council’s decision does not give guidance on what approach the state should take if it is not possible for domestic legislation to conform to the international instrument. The answer to this question may be found in the Supreme Court decision of Roussety v. The Attorney General28 in which the Court held that: The question of conflicts between the municipal laws and recognized rules of International Law has been the subject of several judicial decisions as well as of commentaries on the part of many authorities on Constitutional and International Law. The unanimous view is that municipal law prevails in such a case.29 The rationale behind this is that treaties are entered into by the executive, which does not have law making powers, and they can only become part of Mauritian law if they have been domesticated through an enabling legislation.30 In Nick M. Columa v. The Magistrates of the Intermediate Court,31 the Court held that ‘when a text of the local law is ambiguous and capable of being interpreted in more than one way, the interpretation which brings it in line with our obligations at International law should be preferred to one which brings it in conflict with such obligations’32 and that ‘it is beyond dispute that when there is a conflict between Municipal law and International law, a municipal court will apply the Municipal law’.33 However, the question becomes more complicated if it is a constitutional provision which is contrary to a state’s international human rights treaty obligation in a country, like Mauritius, where the constitution is the supreme law of the land. In this case, it may not be possible to interpret domestic law to conform to treaty obligations. The Privy Council seems to subject the Constitution to international law by stating that ‘and the Constitution violates no internationally accepted principle by precluding discrimination on grounds of religion to the extent it does’. Three, the Privy Council refers to international instruments to which the state is party. It is not clear if this is limited to those treaties that have been ratified or acceded to or it also includes those treaties which have been signed but not yet ratified. Four, the Privy Council’s holding also makes it clear that it is not a requirement that a treaty should have been domesticated before courts may interpret domestic law to conform to the treaty. What matters is that the state is a party to that treaty. This is not in line with some of the judgements discussed above from the Supreme Court in which the Court holds expressly that treaties have to be domesticated before they can impose obligations on Mauritius. Another issue is whether the court is ready to find that a constitutional or legislative provision is inconsistent with Mauritius’ international human rights obligation. In The Union of Campement Sites Owners & Others v. Government of Mauritius & Others,34 the applicants argued that law which imposed tax on those who owned land near the sea infringed on their rights to property and equality and therefore contrary to Mauritius’ constitution and international human rights obligations. The applicants also argued that because the Mauritian constitution did not include an express provision requiring the state to treat all the people as equal before the law, ‘such a provision should be read into our Constitution, particularly as the Covenant on Civil and Political Rights to which Mauritius is a party contains similar provisions’.35 In dismissing that submission, the Court held that: With regard to the Covenant [ICCPR], we do recognise that…it has…received the benefit of the pragmatic thinking of a great number of nations which, over the period 1949 to 1966, set themselves the task of translating the broad principles of human rights proclaimed in the Universal Declaration into the binding provisions of a treaty like the Covenant, capable of being implemented in the different legal systems of nations. We also recognise that our Constitution, having been fashioned in the course of this exercise, is much more of a practical and workmanlike instrument than older Constitutions and, in the human rights provisions, has much in common with the Covenant to which Mauritius is, in any case, a State Party. It is, however, not for us to pronounce on the consistency of our Constitution and our Laws with the provisions of the Convenant [sic]. That is a function which devolves on the Human Rights Committee under Article 40 of the Convenant [sic] when it examines the reports of State Parties or under Article 5 of the Optional Protocol when it considers communications from individuals who are subject to the jurisdiction of State Parties to the Optional Protocol. Our function is to pronounce on the consistency of the laws enacted by our Parliament with the provisions of our Constitution.36 The same reasoning was followed in Guyot and anor v. Government of Mauritius37 in which the applicant argued, inter alia, that the employment regulations were discriminatory against foreign nationals married to Mauritian women and therefore contrary to Mauritius’ obligations under the ICCPR.38 The Court has made it clear that it will not read into the Constitution rights which are not provided for therein although they are provided for in international human rights instruments.39 However, this does not bar the Court form referring to treaties in support of its position that some rights in the Constitution are not absolute. In Bhewa and Alladeen v. Government of Mauritius and DPP,40 the Court held that: Freedom of religion subject to the permissible derogations is a fundamental right which the European Convention on Human Rights recognises in its article 9, and which the International Covenant on Civil and Political Rights also recognises in its article 18.41 In that case though the Court does not deal with the issue of whether the Constitution or legislation is contrary to Mauritius’ treaty obligations. It refers to these international instruments to interpret a right which is provided for in the Constitution as one of the rights subject to limitations. However, the position appeared to be changing when it came to the issue of determining whether legislation is consistent with Mauritius’ international human rights obligations. In Peerbocus v. R42 one of the issues was whether the Courts Act which prohibited women from being members of the jury infringed upon the right to equality and freedom from discrimination. In his separate partly concurring judgement, Judge Ahnee held that: Mauritius was amongst the first signatories of the International Covenant on Civil and Political Rights which, in its section 25, provides that every citizen shall have the right and the opportunity without any of the distinctions mentioned in article 2 (race, colour, sex etc) and without unreasonable restrictions to have access, on general terms of equality, to public service in his country. Somebody discriminated upon the ground of sex for public service has thus an undisputed right to complain to the UN Committee set up under article 29 of the Covenant. I conclude that by excluding from jury service, a public service, all the women of this country, whatever may be their aptitudes and qualifications, section 42 of the Courts Act violates not only the Universal Declaration of Human Rights proclaimed by the United Nations and the International Covenant on Civil and Political Rights but also both chapters I and II of the Constitution.43 Some judges are thus prepared to conclude that legislation was inconsistent, not only with the Constitution but also with Mauritius’ international human rights obligations in a treaty not yet domesticated by Mauritius and also with the UN General Assembly Declaration—the Universal Declaration of Human Rights. The Court is increasingly being approached to determine whether some legislative provisions are not contrary to Mauritius’ international human rights obligations. There are cases in which the Court has had to state expressly that the rights provided for in the constitution are also provided for in international human rights instruments such as the ICCPR or the European Convention on Human Rights.44 The Court has gone to the extent of holding that the implementation of some regulations was contrary to a principle which is embodied in the ICCPR although not included in the Mauritian constitution. In MGC Pointu v. The Minister of Education and Science & Anor,45 the Minister of Education introduced new discriminatory examination regulations. The applicant argued that these regulations were contrary to sections 3 and 16 of the Constitution which, read together, prohibit discrimination on the basis of race and creed. Most importantly, none of the parties referred to the ICCPR in their submissions. The Court held that [T]he decision of the Minister to implement the new programme in such circumstances is unfair and arbitrary and offends the principle of equality before the law and equal protection of the law embodied in Article 26 of the International Covenant on Civil and Political Rights enshrined in our Constitution.46 It is important to note here that the Court’s judgement invokes the ICCPR first and follows it with the Constitution. There is evidence to show that the Supreme Court has referred to Mauritius’ international human rights obligations to refuse to enforce a domestic legislation where its enforcement would be contrary to Mauritius’ obligations under a treaty which has not been domesticated in Mauritius. In Clelie Jean Pierre v. Mahendar Sawon47 the respondent failed to pay the money he owed to the applicant. The applicant approached the Court to make an order for the respondent to be imprisoned as a civil debtor on the basis of section 26 of the Courts (Civil Procedure) Act of 1856. In refusing to make that order, partly because the applicant had other avenues through which he could compel the respondent to pay the money other than having him imprisoned, the Supreme Court held that: Mauritius has become a party to the International Covenant on Civil and Political Rights, adopted in December 1966. Article 11 thereof stipulates as follows—‘No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation’. This is a reproduction of article 1 to the Fourth Protocol (adopted in 1963) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Human Rights Committee, on the last occasion that Mauritius presented its periodic report in April 1996, remarked as follows—‘The Committee is concerned that the legislation of Mauritius has not yet been brought into line with article 11 of the Covenant’. We have also ratified the First Protocol to the Covenant, which enables an individual to submit written communications to the Human Rights Committee. Should any person be imprisoned for civil debt he would have the right to take the matter to the Committee after exhausting all available domestic remedies. The Committee already holds the view that Mauritius is in breach of its international obligations by maintaining section 26 of the Courts (Civil Procedure) Act on its statute books.48 Here the Court refuses to make an order, which would have been lawful in terms of domestic law, simply because it would be in violation of Mauritius international obligations. The Court was also concerned that if a person were imprisoned for failure to pay a debt, the Human Rights Committee would have found Mauritius to be in violation of its obligations under the ICCPR. Some judges were of the view that section 26 of the Courts Act may have to be amended to comply with Mauritius’ international human rights obligations.49 However, when the Court dealt with the issue of whether section 26 of the Courts Act was unconstitutional and also against Mauritius’ international human rights obligations, it held that section 26 is not unconstitutional and was not contrary to Article 11 of the ICCPR because it does not permit the imprisonment of a person for failure to pay a debt.50 This holding is important because the Court assesses domestic legislation and determines if it complies with a treaty that has not been domesticated in Mauritius. In Tengur S v. Minister of Education & Anor51 in which the applicant relied on inter alia, international treaties to challenge a discriminatory school admission policy, the Court, ‘in the light of the provisions of the UNESCO Convention against Discrimination in Education…and the International Covenant on Economic, Social and Cultural Rights, to which Mauritius is a signatory’52 and also on the basis of the Constitution, found the policy to be discriminatory and set it aside. The above discussions showed that the Court was moving towards recognizing Mauritius’ obligations under treaties which have not been domesticated. However, that approach did not last for long. In 2005, the Court changed its approach on the issue of the role of international instruments in interpreting the constitution and legislation. In Pulluck T v. Ramphul D & Others,53 the appellant argued, inter alia, that a law which allowed a husband to sell property without his wife’s consent but which did not allow a wife to sell property without the her husband’s consent was discriminatory against women and therefore contrary to Mauritius’ obligations in the ICCPR and in the Convention against All Forms of Discrimination against Women. In rejecting this submission, the Court held: It was submitted that those provisions were in breach of certain named articles of the International Covenant on Civil & Political Rights and of the Convention on the Elimination of All Forms of Discrimination against Women to which Mauritius is a party…[W]hilst it is a well recognised canon of interpretation that domestic legislation should, if possible, be construed so as to conform to international instruments to which the State is a party, it is the practice in Mauritius that any treaty or convention must as a rule be incorporated into its domestic law before the Courts will apply it…The provisions contained in international instruments can therefore hardly be of help to respondents when there is no evidence of their incorporation into our domestic law.54 The Court makes it clear that it will only assess Mauritius’ obligations under international law if the treaty sought to be relied on is domesticated in Mauritius. However, case law shows this has not stopped the Court from referring to these treaties when interpreting rights in the Constitution. For example, in Bajan M v. The State55 the Supreme Court held that: [S]ection 10 protects but one of the first generation human rights which are to be found equally in the United Nations International Covenant on Civil and Political Rights [ICCPR]. We must observe that while article 14(5) of the ICCPR provides that ‘everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law’…we do not have similar provisions in section 10 of our Constitution. However, Section 82(2) of our Constitution appears to dove tail our domestic law in compliance with the provisions of the ICCPR.56 Here, the Court makes it clear that the Constitution complies with Mauritius’ international human rights obligations. Although there are a few cases in which the Court has held that a treaty should only be referred to when it has been domesticated or incorporated in Mauritius, in the majority of the cases the Court and the Privy Council have referred to treaties which have not been incorporated in Mauritian law. These include treaties which have not even been ratified by Mauritius such as the European Convention of Human Rights and some of the protocols to this convention. The discussion below (in addition to what has been discussed above) illustrates the point. The fact that the Court has referred to the European Convention of Human Rights in interpreting legislation should be understood against the history of the Mauritian Bill of Rights. As the Privy Council observed: This Chapter [Protection of Fundamental Rights and Freedoms of the Individual] is evidently based upon the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the European Convention’) but there are also significant differences in language and structure and it cannot be assumed that particular sections were necessarily intended to have the same meanings.57 In Compagnie Sucrière de Bel Ombre Ltée v. Government of Mauritius,58 the Court had to decide whether an amendment to a lease legislation violated the applicants’ constitutional right to property. In deciding whether or not the legislation was unconstitutional, the Court referred to Article 1 of the First Protocol to the European Convention on Human Rights and observed that: [T]he concluding part of that Article is analogous to section 3 of the Constitution which preserves legitimate intervention by the State where the purpose is to ensure that the enjoyment of the right to property does not prejudice the rights and freedoms of others or the public interest.59 The facts of the case are silent on whether one of the parties had invoked Article 1 of the First Protocol to the European Convention on Human Rights in their submissions. This means that the Court, of its volition, invoked this treaty because its concluding part is analogous to Article 3 of the Constitution. The Court does not explain the legal status of that treaty in Mauritian law. On appeal, the Privy Council also referred to the jurisprudence of the European Court of Human Rights and to Article 1 of the First Protocol to the European Court of Human Rights.60 In some cases, the Privy has relied on the jurisprudence of the European Court of Human Rights in interpreting some of the provisions of the Mauritian Constitution.61 On the issue of discrimination, the Privy Council relied mostly on the case law of the European Court of Human Rights and held that: Where apparently discriminatory treatment is shown, it is for the alleged discriminator to justify it as having a legitimate aim and as having a reasonable relationship of proportionality between the means employed and the aim sought to be realised.62 The Privy Council followed a similar approach in another case alleging discrimination.63 Like the Privy Council, the Supreme Court has also relied on the European Convention of Human Rights and on the jurisprudence of the European Court of Human Rights to interpret the Constitution and other legislation. In Heeralall v. Commissioner of Prisons,64 the Supreme Court invoked the jurisprudence of the European Court of Human Rights to hold that Mauritian courts should not permit the extradition of a person to a country where there is evidence that his fundamental rights would be violated. Likewise, in Director of Public Prosecutions v. Ali Abeoulkader Mohamed & Ors,65 the Supreme Court referred to the jurisprudence of the European Court of Human Rights to hold that where an accused’s pre-trial rights have been violated, the best approach is not to stay the proceedings against him but to award him damages for the violations.66 In Marguerite V.E.P. v. The Prime Minister of Mauritius & Anor,67 the Supreme Court invoked the jurisprudence of the European Court of Human Rights to hold that ‘a State has the right under international law to control the entry of non-nationals into its territory’.68 The Court also invoked this jurisprudence when dealing with the right to freedom of expression,69 and the right of the state to regulate which foreign nationals should come to its territory.70 In Bajan M v. The State71 the Supreme Court made it clear, I would say belatedly, that the provisions of the Seventh Protocol to the European Convention on Human Rights ‘are not applicable to us, and we can but draw useful guidelines, we are quite happy to observe that the provisions of section 82(2) of our Constitution are in fact compatible with the provisions of the Seventh Protocol’.72 In this case, the Court makes clear the status of that treaty in Mauritian law. The above jurisprudence shows that although the European Convention on Human Rights is not part of Mauritian law, the Court referred to it in interpreting the rights in the Constitution. The Court and Privy Council have also referred to the ICCPR and the jurisprudence of the Human Rights Committee although Mauritius has not domesticated this treaty. The relevant jurisprudence is discussed next. The Privy Council cited with approval the decisions of the Mauritian Supreme Court on the issue of the difference between discrimination and differentiation and held that ‘It reflects the approach taken in applying the International Covenant on Civil and Political Rights’ in the United Kingdom.73 The Supreme Court has referred to the ICCPR and to the jurisprudence of the Human Rights Committee when interpreting human rights provisions in the Mauritian Constitution. These issues have included the right of an accused to be tried in a reasonable time;74 that the right to freedom of expression is not absolute;75 that the rights to life and to freedom from torture are absolute;76 the right of an offender to benefit from a lighter penalty;77 the right to legal representation;78 on the right to legal aid;79 the principle of equality before the law;80 the fact that the Mauritian constitution does not provide for the right to family life;81 the right to appeal against conviction or sentence;82 the right to privacy;83 and on the right to a fair hearing.84 There are cases where lawyers have invoked provisions of international treaties in their submissions but the Court does not deal with them in its judgement.85 The Court has also referred to non-binding international instruments such as the UDHR86 and General Comments.87 The above discussion has illustrated that the Court has continued to refer to international treaties in interpreting legislation or the Constitution. The result is that the jurisprudence is inconsistent on the role of international law in interpreting legislation. Sometimes the Court refers to international law and sometimes it does not. Its jurisprudence is unpredictable on the role of international law, especially the role of treaties which have not been domesticated, in interpreting the Constitution. Sometimes it is also contrary to the position taken by the Privy Council on this issue. It is recommended that the Constitution may have to be amended to specifically provide for circumstances in which the Court may refer to international law in interpreting legislation. The examples of South Africa and Zimbabwe may be followed. We now turn to the issue of customary international law. 4. CUSTOMARY INTERNATIONAL LAW The Constitution of Mauritius is silent on whether customary international law is part of Mauritian law. The Supreme Court has dealt with this issue. As mentioned above, in Jordan v. Jordan,88 the Supreme Court held that the general rule is that the Court will refer to a treaty in interpreting legislation if that treaty has been incorporated in Mauritian law. However, the Court also held that ‘“Ius Cogens” or rules of customary international law which are usually recognized by all civilized nations are the exceptions since they do not require any formal incorporation before they are acknowledged by domestic Courts’. The Court has reiterated this position in a recent case.89 In Director of Public Prosecutions v. Ali Abeoulkader Mohamed & Ors,90 the Supreme Court held that: It is not disputed that the offence of piracy as created under the Act is akin to the offence of piracy under customary international law as reflected in Article 101 of UNCLOS and that the constituent elements thereof are the same. This is not surprising as it is accepted that the Convention has codified the relevant rules of customary international law of piracy and States are bound by the rules of customary international law, even if they are not parties to the Convention.91 In First Global Funds Limited PCC & Anor v. Financial Services Commission of Mauritius & Anor92 where the Court dealt with the issue of state immunity, it held that In Mauritius, there is no legislation which addresses the issue of immunity of foreign states, nor is there local case law on the point. Moreover, Mauritius is not a party to the United Nations Convention on Jurisdictional Immunities of States and their property…However, it has been accepted that customary international law, from which the principle of state immunity is derived in the absence of treaty or relevant legislation, applies in Mauritius.93 The Court referred to jurisprudence from the United Kingdom, France and from the International Court of Justice to the effect that the doctrine of state immunity is derived from customary international law94 to hold that ‘[f]rom the above, we take the view that the doctrine of state immunity applies in Mauritius as a matter of customary international law’.95 The above jurisprudence makes it clear that in interpreting legislation the Court will refer to customary international law although there is no piece of legislation which states that customary international law is part of Mauritian law. 5. CONCLUSION In this article, the author has discussed the jurisprudence from the Supreme Court of Mauritius and a few cases from the Privy Council on the issue of the role of international law in interpreting legislation. The author has demonstrated that when it comes to international treaties, this jurisprudence is inconsistent on the question of whether these treaties should only be referred to when they are incorporated in Mauritius. The jurisprudence shows that in a few cases the Supreme Court has insisted that it will only refer to treaties which have been domesticated yet in a majority of cases it refers to treaties which have not been domesticated including those which have not been ratified by Mauritius. The author recommends that there may be a need to amend the Constitution to provide clearly the circumstances in which the Court may refer to treaties in interpreting legislation. The author has also dealt with the issue of customary international law and how the Court has invoked it to interpret legislation. The Court has made it clear that customary international law is part of Mauritian law. The author wrote this article when he was a visiting researcher at the School of Law, the University of Nottingham, United Kingdom (July 2016). He is grateful to Professor Dirk van Zyl Smit for hosting. His stay at the University of Nottingham was supported partly by the National Research Foundation of South Africa [Grant-specific unique reference number (UID) 86004]. The author acknowledges that opinions, findings, and conclusions or recommendations expressed in this paper are those of the author and that the NRF accepts no liability whatsoever in this regard. Footnotes 1 Section 39(1)(b), Constitution of South Africa 1996. 2 Section 46(1)(c), Constitution of Zimbabwe, 2013. 3 See generally, F Viljoen, International Human Rights Law in Africa (2nd edn Oxford University Press Oxford 2012). 4 Danche D. v. The Commissioner of Police & Ors 2002 SCJ 171, p. 2. 5 Ibid, p. 3. In this case, the Court held that the extradition agreement between the United States and the United Kingdom was applicable to Mauritius and could be relied on to extradite a person from Mauritius to the United States. 6 Mahmotaky M. A. v. The Secretary for Home Affairs & Ors 2003 SCJ 238, p. 4. 7 Heeralall v. Commissioner of Prisons 1992 MR 70; 1992 SCJ 140, 3. 8 Jubb v. The Governor of Seychelles and H. M. Attorney General for Seychelles 1956 MR 309, p. 3–4. 9 Peerbocus v. R 1991 MR 90; 1991 SCJ 212. 10 Ibid, p. 12. 11 Michael Rex Jordan v. Marie Mar tine Jordan 2000 SCJ 057. 12 Ibid, p. 12. 13 Ibid, p. 12. 14 Ibid, pp. 12–13. 15 Ibid, pp. 14–15. 16 Ibid, p. 15. 17 Ibid, p. 15. 18 Ibid, pp. 15–17. 19 Ibid, p. 17. 20 Ibid, pp. 17–18. 21 Federation Mauricienne De Triathlon & Anors v. Hao Thyn Voon Ha Shun & 8 Ors 2013 SCJ 158. 22 Ibid, p. 7. 23 Cruz City 1 Mauritius Holdings v. Unitech Limited & Anor 2014 SCJ 100. 24 Ibid, p. 2. 25 Ibid, p. 2. 26 Director of Public Prosecutions v. Ali Abeoulkader Mohamed & Ors 2015 SCJ 452. 27 Bishop of Roman Catholic Diocese of Port Louis and Ors v. Suttyhudeo Tengur and Ors 2003 PRV 21; 2004 MR 197, para. 20. See also Matadeen D and Anor v. Pointu M. G. C. and Ors (Privy Council) 1997 PRV 14 1998 MR 172, para. 12 where the Privy Council stated that ‘Since 1973 Mauritius has been a signatory to the International Covenant on Civil and Political Rights. It is a well-recognized canon of construction that domestic legislation, including the Constitution, should if possible be construed so as to conform to such international instruments’. 28 Roussety v. The Attorney General 1967 MR 45. 29 Ibid, p. 9. 30 Ibid, p. 9. 31 Nick M. Columa v. The Magistrates of the Intermediate Court 1998 SCJ 485; 1998 MR 153. 32 Ibid, p. 9. 33 Ibid, p. 11. 34 The Union of Campement Sites Owners & others v. Government of Mauritius & Ors 1984 MR 100; 1984 SCJ 229. 35 Ibid, p. 11. 36 Ibid, pp. 11–12. 37 Guyot and anor v. Government of Mauritius 1991 MR 156; 1991 SCJ 325. 38 Ibid, p. 5. 39 Marguerite V.E.P. v. The Prime Minister of Mauritius & Anor 2014 SCJ 37 (on the issue of the right to family life). 40 Bhewa and Alladeen v. Government of Mauritius and DPP 1990 MR 79; 1990 SCJ 126. 41 Ibid, p. 8. 42 Peerbocus v. R 1991 MR 90; 1991 SCJ 212. 43 Ibid, p. 13. 44 Jungum N.V v. The Assessment Review Committee & Anor 2011 SCJ 416, p. 4 (the right to call witnesses under the ICCPR); London Satellite Systems Ltd v. The State of Mauritius 1997 SCJ 198; 1997 MR 128 (freedom of expression under the ICCPR and the European Convention on Human Rights); Petumbar B. v. The State 1992 SCJ 327 (the right to appeal against a sentence and conviction under Art. 14 of the ICCPR). 45 MGC Pointu v. The Minister of Education and Science & Anor 1995 SCJ 359; 1995 MR 132. 46 Ibid, p. 30. 47 Clelie Jean Pierre v. Mahendar Sawon 1998 SCJ 493. 48 Ibid, pp. 4–5. 49 Pelladoah v. Development Bank of Mauritius 1992 MR 5; 1992 SCJ 26, p. 2, the Court held that ‘It may very well be that the provisions relating to imprisonment for debt require to be reviewed either substantively or procedurally, having regard to the fact that these provisions date back to the last century when the legal system had not yet provided creditors with various means of effectively securing their debt and also of the further fact that norms relating to deprivation of liberty and human rights generally have evolved and imprisonment for inability to fulfil a contractual obligation has been outlawed as an international norm (vide Art. 11 of the International Covenant on Civil and Political Rights and Art. l of the Fourth Protocol to the European Convention on Human Rights).’ 50 Toolsy Kamla v. H.H. the District Magistrate of Pamplemousses 2002 SCJ 16; 2002 MR 9. See also Eid-En Rummun H. v. Jagessur M. M. Tiwaree 2006 INT 422, p. 3; Etienne Jean v. Catherine Joseph Clarence R. G. 2006 INT 426, in which that decision is quoted. 51 Tengur S v. Minister of Education & Anor 2002 SCJ 298; 2002 MR 116. 52 Ibid, p. 11. 53 Pulluck T v. Ramphul D & ORS 2005 SCJ 196. 54 Ibid, p. 4. 55 Bajan M v. The State 2010 SCJ 348. 56 Ibid, p. 5. 57 Matadeen D and Anor v. Pointu M. G. C. and Ors (Privy Council) 1997 PRV 14 1998 MR 172, para. 4. 58 Compagnie Sucrière de Bel Ombre Ltée v. Government of Mauritius 1994 MR 73 1994 SCJ 295. 59 Ibid, p. 17. 60 La Compagnie Sucriere de Bel Ombre Ltee and 9 Ors v. The Government of Mauritius (Privy Council) 1995 PRV 46. 61 Bishop of Roman Catholic Diocese of Port Louis and Ors v. Suttyhudeo Tengur and Ors 2003 PRV 21; 2004 MR 197, para. 13. 62 Ibid, para. 19. 63 Matadeen D and Anor v. Pointu M. G. C. and Ors (Privy Council) 1997 PRV 14 1998 MR 172. 64 Heeralall v. Commissioner of Prisons 1992 MR 70; 1992 SCJ 140. 65 Director of Public Prosecutions v. Ali Abeoulkader Mohamed & Ors 2015 SCJ 452. 66 Ibid, p. 21. 67 Marguerite V.E.P. v. The Prime Minister of Mauritius & Anor 2014 SCJ 37. 68 Ibid, p. 2. 69 London Satellite Systems Ltd v. The State of Mauritius 1997 SCJ 198; 1997 MR 128. 70 Marguerite V.E.P. v. The Prime Minister of Mauritius & Anor 2014 SCJ 37. 71 Bajan M v. The State 2010 SCJ 348. 72 Bajan M v. The State 2010 SCJ 348, p. 6. 73 Bishop of Roman Catholic Diocese of Port Louis and Ors v. Suttyhudeo Tengur and Ors 2003 PRV 21; 2004 MR 197, para. 17. 74 Darmalingum S v. State 1999 SCJ 67a, p. 6 (the Court referred to the jurisprudence of the Human Rights Committee on this issue); Sooriamurthy Darmalingum v. The State 1997 SCJ 294; 1997 MR 186 (the dissenting judgement refers to Art. 3 of the ICCPR). 75 Director of Public Prosecutions v. Boodhoo 1992 MR 284; 1992 SCJ 472, p. 4, Narrainen Soopramanien Armoogum v. La Sentinelle Limitee and Jean Claude De L’estrac 2002 SCJ 341, p. 4 (the Court referred to Art. 19 of the ICCPR and Art. 10(2) of the European Convention on Human Rights). 76 Director of Public Prosecutions v. Jagdawoo V & Ors 2016 SCJ 100, p. 28. The Court refers to Art. 4(2) of the International Covenant on Civil and Political Rights, Art. 27(2) of the American Convention on Human Rights and Arts. 3 and 15(2) of the European Convention on Human Rights. 77 Dookia R R v. The State 2011 SCJ 49, p. 9; Lagaiete Louis Renaud v. State 2012 SCJ 232; SCR 7917, p. 2. The Court referred to Art. 15(1) of the International Covenant on Civil and Political Rights. 78 Fatmabee F v. The State 2003 SCJ 260, p. 3, the Court referred to the jurisprudence of the Human Rights Committee. 79 Gulam Rassool and Mukhtar Ali v. Government of Mauritius 1989 MR 222; 1989 SCJ 457, p. 2. The Court referred to Art. 14 of the ICCPR and to the jurisprudence of the Human Rights Committee. 80 MGC Pointu v. The Minister of Education and Science & Anor 1995 SCJ 359; 1995 MR 132. 81 Marguerite V.E.P. v. The Prime Minister of Mauritius & Anor 2014 SCJ 37 (the Court referred to Arts. 17 and 28 of the ICCPR and to Art. 8 of the European Convention on Human Rights). 82 Petumbar B. v. The State 1992 SCJ 327. 83 Ramgoolam N v. Commissioner of Police & Anor 2015 SCJ 84 (the Court referred to Art. 17 of the ICCPR). 84 Vert v. District Magistrate of Plaines Wilhems, Thomas and Ors 1993 MR 28; 1993 SCJ 172. 85 Director of Public Prosecutions v. D. Dhooharika & Ors 1996 SCJ 275, p. 2 (invoked Art. 14(5) of the ICCPR but the Court did not deal with it); Hurnam Devendranath, A Barrister-At-Law 2007 SCJ 289 (invoked the ICCPR and the European Convention on Human Rights without mentioning the applicable articles); Roman Catholic Diocese of Port Louis v. Minister of Education 1991 MR 176; 1991 SCJ 350 (Art. 13 of the International Covenant on Economic, Social and Cultural Rights, Art. 18 of the International Covenant on Civil and Political Rights of 1976, Art. 2 of the First Protocol to the European Convention of Human Rights). 86 Peerbocus v. R 1991 MR 90; 1991 SCJ 212 (on the issues of freedom from discrimination and equal access to public service); Ramgoolam N v. Commissioner of Police & Anor 2015 SCJ 84 (on the issue of the right to privacy). 87 Tengur S v. Minister of Education & Anor 2002 SCJ 298; 2002 MR 116, p. 4 (General Comment No. 13 on the right to Education adopted in 1999 by the Committee on Economic, Social and Cultural Rights). 88 Jordan v. Jordan (2000) SCJ 57. 89 See also First Global Funds Limited PCC & Anor v. Financial Services Commission of Mauritius & Anor 2016 SCJ 14, p. 5. 90 Director of Public Prosecutions v. Ali Abeoulkader Mohamed & Ors 2015 SCJ 452. 91 Ibid, p. 5. 92 First Global Funds Limited PCC & Anor v. Financial Services Commission of Mauritius & Anor 2016 SCJ 14. 93 Ibid, pp. 4–5. 94 Ibid, pp. 5–6. 95 Ibid, p. 6. © The Author(s) 2016. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected]. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
Journal
Statute Law Review – Oxford University Press
Published: Dec 19, 2016