Heeralall v Commissioner of Prisons; France v Heeralall and Attorney-General
| Jurisdiction | Mauricio |
| Date | 30 July 1993 |
| Court | Supreme Court (Mauritius) |
(Glover CJ, Lallah SPJ)
(Forget ASPJ, Bolell J)
Extradition Treaties Whether binding Requirement of existence of a binding extradition treaty State succession to treaties upon independence Request for extradition of accused from Mauritius to France Whether United Kingdom France Extradition Treaty continuing to be binding in respect of Mauritius Constitutional guarantees of due process Whether absence of similar guarantees in requesting State precludes extradition of accused
State succession Treaties Extradition treaty Colony achieving independence Whether extradition treaty concluded by former colonial power still applicable Attitude of other party to treaty
Relationship of international law and municipal law Treaties Whether treaty in force for newly independent State Admissibility of expert evidence
Treaties Conclusion and operation State succession Whether treaty in force after independence Nature of treaties The law of Mauritius
Summary: The facts:The Republic of France requested the extradition of Mr Heeralall, a national of Mauritius, to face charges of wilful homicide (homicide volontaire). At the extradition hearings, a document from the Tribunal de Grande Instance in Paris was submitted to the Court which stated that, in the absence of an applicable extradition treaty between France and Mauritius, the extradition request was being presented with an offer of reciprocity. The French authorities also presented a note verbale to the Court which stated that, as French law prohibited the extradition of French nationals from France, it could not offer reciprocity if Mr Heeralall was a Mauritian national. The extradition court committed Mr Heeralall to detention pending his extradition. Mr Heeralall applied for an order of habeas corpus. He challenged the extradition order on the grounds that there was no extradition treaty between France and Mauritius; that even if there was a treaty, Mauritius could not extradite its own nationals; that the documentation placed before the court had not met the conditions of the Extradition Act 1970 (the Act): and that, if extradited, he would be deprived of the guarantees, particularly the due process guarantees, which he would enjoy under the Constitution of Mauritius.
On independence in 1968, the United Kingdom Extradition Acts 18701935 and the FranceUnited Kingdom Extradition Treaty continued to form part of the law in Mauritius. In 1970, the Parliament of Mauritius enacted the Extradition Act which, by Section 3, preserved its application to States which had previously been specified under Orders in Council under the Extradition Acts 18701935. France was one such State. The Act applied only if a binding extradition treaty existed. An extradition treaty, under Section 2 of the Act, included a treaty made before independence which extended to and was binding on Mauritius.
Held:The application was granted.
(1) Upon independence, Mauritius had chosen to deal with the question of succession to treaties by making a declaration to the Secretary-General of the United Nations stating that, in so far as bilateral treaties were applicable prior to independence, they would continue to apply on a basis of reciprocity for a period of two years, after which they would terminate unless they could, be regarded as surviving under the rules of customary international law. Sections 2 and 3 of the 1970 Act were drafted to ensure that the Act would apply only where the relevant treaty continued to be, or was, binding (pp. 1723).
(2) Whether an international treaty was binding or not was a matter of expert evidence. No expert evidence was placed before the Magistrate. Furthermore, the document from the Tribunal de Grande Instance of Paris indicated that France did not consider that there was an extradition treaty in force between the two States (p. 173).
(3) Since there was no evidence of the existence of a binding extradition treaty before the extradition court, the court had lacked jurisdiction to make an order committing Mr Heeralall to prison pending his extradition to France (p. 174).
(4) In States which entrenched fundamental rights in the Constitution, extradition legislation had to be read subject to those guarantees. The procedural guarantees available in the State requesting extradition were a relevant consideration for a court determining whether such a request should be granted. This might, in some instances, result in the refusal of an extradition request where the court could not ensure that the guarantees under the Mauritius Constitution would be available to an accused and where the accused had raised the issue that, if extradited, he might be deprived of the guarantees available to him under the Mauritius Constitution (p. 174).
The Republic of France sought leave to appeal to the Judicial Committee of the Privy Council against the decision of the Supreme Court.
Held:Leave to appeal to the Privy Council was granted.
(1) Under Section 81(2) of the Constitution and Section 70A of the Courts Act an appeal lay as of right to the Judicial Committee of the Privy Council where a question of great general and public importance was raised. The question of whether the extradition treaty continued to operate was a matter of great general and public importance for the future relationship between France and...
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