Roussety v Attorney-General

• Jurisdiction: Mauricio
• Court: High Court (Mauritius)
• Date: 30 March 1967

Mauritius, High Court

(Rivalland Ag. C.J.; Lalouette J. and Latour-Adrien Ag. J.)

Roussety

and

The Attorney General.

International law Relation to municipal law Which prevails in case of conflict The law of Mauritius.

The individual in international law Human rights and freedoms Universal Declaration of Human Rights, 1948 European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 Retrospective criminal legislation Effect of conflict between international law and municipal law The law of Mauritius.

Summary: The facts.Under the Mauritius (Constitution) Order in Council, 1958, the Colony was to be divided into forty electoral districts the boundaries of which were to be fixed by the Governor by Proclamation. By Proclamation No. 10 of 1958, the Governor divided the Island of Mauritius into forty electoral districts, in which the Dependencies of Mauritius were not included.

The plaintiff asked for a declaration, inter alia, that the elections held in 1959 and 1963 were null and void in view of the failure to include the Dependencies in the electoral districts; that the legislative bodies issuing from those elections and the Council of Ministers elected by those legislative bodies were improperly constituted and unlawful; and that all the Ordinances, Regulations and orders issued by those bodies were null and void and of no effect whatsoever.

After the trial of the case had begun, the Mauritius (Former Legislative Council) Order, 1966, was published in the Government Gazette purporting to validate the Legislative Council established under the Constitution of 1958.

Held:

(i) that colony as defined in the Constitution of 1958 included the Dependencies, which had by Proclamation No. 10 of 1958 been wrongly excluded from the electoral districts therein set out and that, but for the validating Order made at the outset of the present case, the plaintiff could have been entitled to judgment in his favour;

(ii) that the validating Order was not ultra vires the powers of the Queen in Council, which included the power to give retrospective effect to that Order;

(iii) that the validating Order could not be impugned (by virtue of its retrospective effect as regards criminal offences and courts, or its alleged contravention of the dictates of natural justice or fundamental principles of human rights) as being contrary to the principles of human rights recognized by international law; and in any case, in a conflict between international and municipal law, the latter must prevail.

The following is the text of the judgment:

Rivalland Ag. C. J.: The plaintiff avers in his Statement of Claim, directed against the Honourable the Attorney General, that in 1958 the then Governor of the Colony under the powers vested in him by the Mauritius (Constitution) Order in Council 1958 (hereinafter referred to as the 1958 Order) issued a Proclamation (No. 10 of 1958) which in effect divided the Island of Mauritius into forty electoral districts and left out the dependencies of Mauritius which should have been included by virtue of section 29 of the 1958 Order worded as follows:

Electoral Disricts 29.(1) For the purpose of electing members of the Districts Legislative Council the Colony shall be divided into forty electoral districts, each of which shall return one member. (2) The boundaries of each electoral district shall be fixed by the Governor by Proclamation published in the Gazette

inasmuch as the expression Colony is defined in section 2 of that Order as including the small islands adjacent to Mauritius and its dependencies as well.

The plaintiff accordingly prays for a judgment declaring:

(a) that Proclamation No. 10 of 1958 is ultra vires, null and void to all intents and purposes;

(b) that the elections held in 1959 and 1963 were null, void and of no effect;

(c) that the legislative bodies constituted inter alios by members purported to have been elected in 1959 and 1963 were improperly constituted and unlawful;

(d) that the Council of Ministers constituted inter alios by members purported to have been elected by the legislative assemblies is also improperly constituted and unlawful;

(e) that all the Ordinances, Regulations and Orders issuing from (i) the Legislative Council; (ii) the Legislative Assembly; (iii) the Executive Council and (iv) the Council of Ministers, since March 1958 are null, void and of no effect whatsoever.

As the parties have readily submitted to our jurisdiction, we propose to follow the course adopted by this Court in Mayor and Corporation of Port Louis v. Attorney GeneralUNK[1] and to decide the matter finally in view of the importance of the issues raised on the assumption that this Court is empowered to pronounce a declaratory judgment.

Mr. Koenig, Q.C., who appeared for the plaintiff, began his address to the Court on 21 December 1966. On that very day the following Order in Council (hereinafter referred to as the 1966 Order) was made by Her Majesty and was published in a special issue of the Government Gazette on 22 December 1966:

Citation & Interpretation	1.(1) This Order may be cited as the Mauritius Interpretation (Former Legislative Council) Order 1966. (2) Expressions used in this Order shall have the same meaning as in the Mauritius (Constitution) Order in Council 1958.
Validity of former Legislative Council	2. The fact that the forty electoral districts established of former under section 29 of the Mauritius (Constitution) Legislative Order in Council 1958 were wholly within the Island Council of Mauritius shall not be held to have affected the validity of any election to the Legislative Council established by that Order or of anything done by that Legislative Council or any member thereof.

When the case came for continuation on the last mentioned date, it was adjourned to give Counsel an opportunity of considering their position in the light of this development. At a subsequent sitting Mr. Koenig informed the Court that he intended to submit that the 1966 Order was ultra vires the powers of Her Majesty in Council and that the position remained therefore unchanged. The case was argued at some length in the course of several sittings and the Court has had the benefit of able and exhaustive addresses from Mr. Koenig and the Acting Director of Public Prosecutions, who appeared for the Attorney General.

In view of the nature of the submissions of Mr. Koenig, it is necessary before we deal with them to examine in some detail the powers of Her Majesty in Council and the extent of the Royal Prerogative in so far as the Government of conquered or ceded Colonies, such as this Colony, is concerned.

In his book on Commonwealth and Colonial Law, published in 1966, Sir Kenneth Roberts-Wray makes the following statement at P. 157:

The Prerogative in Conquered and Ceded Colonies

It is established beyond question that, just as these colonies are acquired by virtue of the Prerogative to make war, peace and treaties, so the Sovereign has full power under the Prerogative to make laws either in the constituent field or otherwise. This was disputed in Campbell v. Hall; but, mainly on the authority of Calvin'scase, affirmed. Subsequent confirmation is to be found in other decided cases and works on consitutional law.

The learned author further points out that the principle was acted upon centuries ago by Henry II in Ireland and Edward I in Wales.

The above statement is indisputably correct. It was, as pointed out above, affirmed in Calvin'sENRcase[1] in the following words:

and so far as we have been able to ascertain no authority on Constitutional Law has ever expressed a contrary opinion.[2]

There appear to be only two limitations on the exercise of the Royal Prerogative:

(a) under section 2 of the Colonial Laws Validity Act, 1865, the provisions of an Order in Council are void if they conflict with those of an Act of Parliament extending to the Colony concerned or of any Order or Regulation made under that Act; and

(b) if the Crown sets up a representative legislative body in a conquered or ceded Colony and does not reserve to itself the power to legislate, that power becomes extinct and can no longer be exercised. This principle was laid down in the case of Campbell v. HallENR[3] and the consequences of this decision were exhaustively examined by the Judicial Committee of the Privy Council in the case of Sammut v. StricklandELR.[4]

What effects, if any, those limitations have on the issues raised in the present case will be considered in the course of this judgment.

We now propose to consider the grounds on which Mr. Koenig based his contention that the 1966 Order was ultra vires:

(A) The first ground was that the only provisions which might have permitted the making of the 1966 Order are contained in section 10 of the Mauritius (Constitution) Order, 1964, which reads as follows:

10. There is reserved to Her Majesty full power to make laws from time to time for the peace, order and good government of Mauritius (including, without prejudice to the generality of the foregoing, laws amending or revoking this Order),

and that the reservation to make laws for the good government of Mauritiusinter alia mentioned in the above section does not include the reservation of the power to make constitutional instruments.

Since the decision in Campbell v. Hall, it has been the invariable practice to insert in Orders in Council a reserve power to Her Majesty. The drafting has not always been uniform and in some cases either the reservation of the constituent powers or that of the legislative powers has been omittedthe effect of those omissions

was considered in Sammut v. Strickland and in Sabally v. Attorney GeneralWLR.[1] In the present case however the wording of the section seems to us so clear as to defy any further attempt at clarification and we hold that the effect of the provisions of the section reproduced above is that full reservation has been made both as regards the constituent and the legislative...