DPP v Masson and another

• Jurisdiction: Mauricio
• Date: 27 July 1972
• Court: Supreme Court (Mauritius)

Mauritius, Supreme Court.

(Latour-Adrien C.J. and Ramphul J.)

Director of Public Prosecutions

and

Masson and Another

The individual in international law In general Human rights and freedoms , Freedom of expression Mauritius Constitution, Section 12(1) Whether law creating offence of sedition inconsistent with Constitution The law of Mauritius

Summary: The facts:The editor and printers of a newspaper were prosecuted for sedition and acquitted on the ground that they had no seditious intent. The Director of Public Prosecutions appealed. The question arose whether the law creating the offence of sedition (Section 283 of the Penal Code) was inconsistent with the Constitution, and therefore void, on the ground that it violated the fundamental right to freedom of expression protected by Section 12(1) of the Constitution,1 and did not come within the permissible restriction for which provision was made in Section 12(2)(a).

Held:The appeal was dismissed. A law which made provisions in the interests of public order was not inconsistent with Section 12 of the Constitution. Section 283 of the Penal Code was not per se inconsistent with the Constitution. The gist of the offence was incitement to disorder or tendency or likelihood of public disorder or the reasonable apprehension thereof. The respondent's seditious intent had not been established.

The following is the text of the judgment of the Court:

Ramphul, J.:Mr. Herv Masson, editor of the newspaper Le Militant, and Presses Popularies Ltd., the printers of the said newspaper, were prosecuted before the Intermediate Court, each on a separate count, for sedition, in terms of section 283(1) (a) of the Penal Code Ordinance. It was alleged in the information that they had committed the offence by publishing in the issue of the 6th September, 1971, of the newspaper an article headed Le voil cette fois, la dictature in which they had attempted to excite disaffection against the Government of Her Majesty in Mauritius. The magistrates dismissed both counts of the information. The Director of Public Prosecutions has now appealed against the magistrates' judgment by way of case stated on the following grounds:

Became the Magistrates of the Intermediate Court

(a) failed to draw the irresistible inference of seditious intent from the very words used in the incriminated article;

(b) failed to consider whether the very words of the incriminated article were calculated to cause disaffection against tile Government;

(c) in the judgment, they wrongly considered

(i) the fact that at the time the article was published, the accused genuinely apprehended that government was considering the banning of the M.M.M. and of the Union;

(ii) the possibility that the accused when publishing the Impugned article, intended to bring into the open what they considered to be a real threat to democratic liberties and try to dissuade government from taking such a dictatorial step;

as showing lack of seditious intent on the part of the accused whereas the above facts are merely indicative of their motive, and the Magistrates of the Intermediate Court erroneously acquitted the accused on the ground that they had no seditious intent.

In the case, as stated by them, the learned magistrates said:

We are satisfied of the following;

(1) The 2 accused published in the issue of the daily newspaper Le Militant of the 6th September 1971, an article headed Le voil cette fois, la dictature, a copy of which is herewith attached.

(2) The 2 accused who thought that the government had already taken undemocratic measures, at which they themselves felt they had been victims, received information that the government was contemplating the banning of the M.M.M. party and of the Unions affiliated to it. The accused who at the time considered that such a measure would be arbitrary and dictatorial thought that the public should be informed of it and the government mis en garde against taking such a step,

As to the impugned article itself we found the following: The article is couched in a language which is offensive and Contains bitter thrusts at Government. Considering, as we must in such a case, the article as a whole, we find that the gist of it is the denunciation and strong condemnation by the writer of the intention which government would have of outlawing the M.M.M. Party and the Unions affiliated to it.

On the facts we found that we could not safely discard the possibility that the accused when they published the impugned article, intended to bring into the open what they considered to be a real threat to democratic liberties and try to dissuade Government from taking such a dictatorial step.

We accordingly found that the seditions intent of the accused namely the intention of exciting disaffection against the Government, which seditious intent is an essential element of the offence charged, had not been satisfactorily established.

We therefore, on the 10th December, 1971, dismissed counts 1 and 2 of the information against accused no. 1 and accused no. 2 respectively.

When the appeal came before this Court, the respondents stated that they would not be represented by counsel and added that they would abide by the decision of the court.

At the hearing of the appeal, Mr. Bourdet, for the appellant, invited our attention to the case of Rex v. MillienUNK 1949 M.R, 35 in which, the Supreme Court (Brouard, Osman and Neerunjan, Ag. JJ, as they then were) examined section 283(l)(a) of the Penal Code Ordinance and held that, under our law, it was not a necessary ingredient of the offence of sedition that the publication should be calculated to incite people to commit violence. Mr. Bourdet then observed that it would appear that, if the word disaffection were given the meaning to it in Millien's case and an intent to cause disorder or violence was not a necessary ingredient of the offence of sedition, the offence, as it existed under our law, would be inconsistent with our Constitution and would be void because it would constitute an infringement of the fundamental right to freedom of expression protected by section 12(1) of the Constitution and would not come within the permissible restriction as provided in section 12 (2) (a) of the Constitution. In support of his contention, Mr. Bourdet referred to a number of cases, some of which were decided by the Courts in India.

We must here observe that the constitutional point raised by Mr. Bourdet does not appear to have been raised before the trial court. It does not even appear in the reasons of appeal. But as it involves an interpretation of s. 283(1)(a) of our Penal Code and also of s. 12 of our Constitution, we have decided to deal with it.

The section of our Constitution which deals with the protection of freedom of expression provides

12 (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and...