Constitution ppt.pdf

Constitution Class of 2024  A definition…? the theory of John Locke which inspired Montesquieu when he wrote ‘‘L’esprit des lois’’. There is no proper definition of the word ‘‘Constitution’’. Broadly, it may be defined as a composition of a written set of rules...

Constitution Class of 2024  A definition…? the theory of John Locke which inspired Montesquieu when he wrote ‘‘L’esprit des lois’’. There is no proper definition of the word ‘‘Constitution’’. Broadly, it may be defined as a composition of a written set of rules associated to rights of individuals and powers of the legislative, executive and judiciary.  …the case for The function of the legislation is to make or amend law, The executive power will administer and regulate these laws properly through the ministerial cabinet to ensure the best policy and the judiciary will be invited to interpret statutes in order to avoid injustice and for justice to flourish Although there is a separation of powers the judiciary, the legislative and the executive must be dependent of each other but no far. Without a Constitution a State may run into anarchy and by consequence may be ruined democratically...contd It is also a contract between men and the Nation. Individuals must be free and enjoy freedom although there are laws and strict rules and regulations. This explains sometimes the coercive power of the State. It is from these rules that courts derive their authority and wisdom..familiarization… Section 1 of the Constitution enacts that: “Mauritius shall be a sovereign democratic State which shall be known as the Republic of Mauritius”. Section 2 of the Constitution enacts that: “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”. Sections 3 to 16 of the Mauritian Constitution provide protection of fundamental rights and freedoms of the individual both in criminal and civil cases If a citizen of Mauritius feels that his constitutional rights have been infringed he can find relief as per the conditions rules are found under The Supreme Court (Constitutional Relief) Rule 2000 provided an application is made under section 17(1) or section 83(1) of the Constitution. SUPREME COURT (CONSTITUTIONAL RELIEF) RULE GN 105 of 2000 – Section 17(4) – 30 June 2000 1. These rules may be cited as the Supreme Court (Constitutional Relief) Rules. 2. (1) An application to the Supreme Court under section 17(1) or 83(1) of the Constitution shall be made by way of a plaint with summons, which shall state with precision- (a) the provision of the Constitution which has been, is or is likely to be contravened ; and (b) the nature of the relief sought. (2) Except with the leave of the Supreme Court, on good cause shown, no application shall be lodged more than three months after the right of action arises. (3) A copy of the plaint shall be served, not less than eight clear days before the day on which the summons is returnable before the Court on- (a) the defendants and any other party to the suit ; (b) the Attorney-General where he or the Government is not a party to the suit. (4) Subject to paragraphs (2) and (3), the Supreme Court Rules 2000 shall apply to any application made under these rules.[Act 15/ 00 ] CASE STUDY… 1. If there is an adequate means of redress, the Supreme Court will not grant the relief prayed for- Vert v. District Magistrate of Plaine Wilhems 1993 MR 28 and Nordally v. PSC 1983 MR 1. 2. Only the aggrieved party can bring an action- Nordally v. PSC 1983 MR 1. 3. The Attorney-General must be put into cause if it is not party to the suit- Sahodeea v R 1997 MR 263. 4. Action must be lodged within three months after the right of action arises- Gatteea v Dulloo. 5. The Plaint with Summons should state the precise nature of the relief sought- DPP v Joomun. 6. The Supreme Court will not entertain action after delay unless good cause shown  Right to appeal Right to appeal is made a constitutional right (Section 80, 81 of the Constitution-refer to table below) in Mauritius but depending on the circumstances of the case and/or the nature of the offence an accused person or a suspect may be admitted to bail according to the new Bail Act 1999 or pending his appeal but though the Republic of Mauritius is a sovereign country and its judiciary system completely independent and impartial the Judicial Committee of the Privy Council of her Majesty is retained, however, as a court of appeal. Section 80 Constitution Courts of Appeal (1) There shall be a Court of Civil Appeal and a Court of Criminal Appeal for Mauritius,each of which shall be a division of the Supreme Court. (2) The Court of Civil Appeal shall have such jurisdiction and powers to hear and determine appeals in civil matters and the Court of Criminal Appeal shall have such jurisdiction and powers to hear and determine appeals in criminal matters as may be conferred upon them respectively by this Constitution or any other law. (3) The Judges of the Court of Civil Appeal and the Court of Criminal Appeal shall be the Judges for the time being of the Supreme Court. Section 81 Constitution Appeals to the Judicial Committee (1) An appeal shall lie from decisions of the Court of Appeal or the Supreme Court to the Judicial Committee as of right in the following cases – (a) final decisions, in any civil or criminal proceedings, on questions as to the interpretation of this Constitution; (b) where the matter in dispute on the appeal to the Judicial Committee is of the value of 10,000 rupees or upwards or where the appeal involves, directly or indirectly, a claim to or a question respecting property or a right of the value of 10,000 rupees or upwards, final decisions in any civil proceedings; (c) final decisions in proceedings under section 17; and (d) in such other cases as may be prescribed by Parliament Provided that no such appeal shall lie from decisions of the Supreme Court in any case in (2) An appeal shall lie from decisions of the Court of Appeal or of the Supreme Court to the Judicial Committee with the leave of the Court in the following cases – (a) where in the opinion of the Court the question involved in the appeal is one that,by reason of its great general or public importance or otherwise, ought to be submitted to the Judicial Committee, final decisions in any civil proceedings; and (b) in such other cases as may be prescribed by Parliament Provided that no such appeal shall lie from decisions of the Supreme Court in any case in which an appeal lies to the Court of Appeal, either as of right or by the leave of the Court of Appeal. (3) Subsections (1) and (2) shall be subject to section 37 (6) and paragraphs 2 (5), 3 (2) and 4 (4) of the First Schedule. (4) In this section, the references to final decisions of a court do not include any determination of a court that any application made to it is merely frivolous or vexatious. (5) Nothing in this section shall affect any right of the Judicial Committee to grant special leave to appeal from the decision of any court in any civil or criminal matter.  The content of the…. Sections 3 to 16 of Chapter II of the Constitution 1968 set the fundamental rights of the citizens of the Republic of Mauritius. from international legal instruments and international covenants such as the Universal Declaration of Human Rights 1948 which in turn has inspired the European Convention on Human Rights 1950 and other regional conventions as well  Demystifying the Constitution…. Mauritius, unlike some other countries, has a written Constitution, which provides for the fundamental rights of the citizen. A country may obtain a written Constitution as a result of independence, civil war or from a federation of existing units or cantons(Switzerland). The UK, Israel and New Zealand have no written Constitution. The Constitution of Mauritius is the supreme law of the country such that ‘‘the terms of the Constitution are in the nature of absolute commands’’ (per Justice Rault in Babet v R).  The accused and the Constitution In the case of Police v Labat by the Supreme Court where it was held that: ‘‘When we deal with what are now commonly called human rights, it is important to remember that these rights have been known for many centuries as natural rights and have been enforced as such by the Courts of many countries. Even before the Stoic philosophers formulated the theory of natural law, the citizens of certain Greek had enjoyed such rights as equal freedom of speech, equality before the law and equal respect for all’’. Société United Docks v Government of Mauritius 1981 MR 500 Justice Rault stated that: ‘‘Every pronouncement of the Constitution enshrined a principle of abiding value and where human rights are concerned these pronouncements must be given their full force and effect’’. According to the Constitution for example any individual has the right to consult a legal representative of his choice, to be afforded reasonable time to prepare his defence and to be tried within a reasonable time. Any individual should be afforded a fair hearing and to be tried before an impartial court within a reasonable time. It also provides some fundamental rights and freedoms of the individual. In courts applicants or the accused may appeal to the Supreme Court on serious grounds that they were not afforded with a fair hearing, issues involved as to the interpretation of sections 5, 10(1) and (2) of the Constitution, they were not afforded with reasonable facilities for consultation with a legal representative-in Zahida Banu Mohamed Husain v The State and Shamin Bano Naeemuddin v The State 1994 SCJ 298; per Justice Lallah and Sik Yuen Section 72 Constitution Director of Public Prosecutions (1) There shall be a Director of Public Prosecutions whose office shall be a public office and who shall be appointed by the Judicial and Legal Service Commission. (2) No person shall be qualified to hold or act in the office of Director or Public Prosecutions unless he is qualified for appointment as a Judge of the Supreme Court. (3) The Director of Public Prosecutions shall have power in any case in which he considers it desirable so to do – (a) to institute and undertake criminal proceedings before any court of law (not being a court established by a disciplinary law); (b) to take over and continue any such criminal proceedings that may have been instituted by any other person or authority; and (c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority. (4) The powers of the Director of Public Prosecutions under subsection (3) may be exercised by him in person or through other persons acting in accordance with his general or specific instructions. (5) The powers conferred upon the Director of Public Prosecutions by subsection (3) (b)and (c) shall be vested in him to the exclusion of any other person or authority Provided that, where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority at any stage before the person against whom the proceedings have been instituted has been charged before the court. (6) In the exercise of the powers conferred upon him by this section, the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority. (7) For the purposes of this section, any appeal from any determination in any criminal proceedings before any court, or any case stated or question of law reserved for the purposes of any such proceedings to any other court, shall be deemed to be part of those proceedings Provided that the power conferred on the Director of Public Prosecutions by subsection (3) (c) shall not be exercised in relation to any appeal by a person convicted in any criminal proceedings or to any case stated or question of law reserved except at the instance of such a person CASE STUDY Minister of Home Affairs v Fischer 1979 3 All ER 21 In Minister of Home Affairs v Fischer 1979 3 All ER 21, a Privy Council’s case, Lord Wilberforce suggested that: ‘‘The first would be to say that, recognizing the status of the Constitution as, in effect, an Act of Parliament, there is room for interpreting it with lesser rigidity and greater generosity, than other Acts, such as those concerned with property, or succession, or citizenship. The second would be more radical: it would treat a constitutional instrument as a sui generis, calling for principles of interpretation of its own, suitable to its character without necessary acceptance of all the presumptions that are relevant to legislation of private law. A Constitution is of legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language, which has been used, and to the traditions and usages which have been given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure, for the process of interpretation a recognition of the character and origin of the instrument and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences’’. Right to personal liberty Section 5 of the Constitution provides protection of right to personal liberty. Section 5(1) of the Constitution deals with the protection of the right to personal liberty: ‘‘(1) No person shall be deprived of his personal liberty save as may be authorised by law (a)….in execution of the sentence or order of a court, whether in Mauritius or elsewhere, in respect of a criminal offence of which he has been convicted.’’If a person considers that he is illegally detained he may apply for a writ of habeas corpus- infra. A person charged with a criminal offence must be informed of the reasons for his arrest or detention (section 5(2) Constitution) or after being arrested or upon being detained to be afforded reasonable facilities to consult a legal representative of one’s own choice (section 5(3) Constitution) and to be brought without undue delay before a Court (section 5(3) Constitution). Right to be tried without undue delay The accused should be tried without undue delay but provided he knows the reasons of his arrest. There were contrasting discussions in the local case of Sooriamurthy Darmalingum v. The State 294 SCJ 1997 (per Justice Boolell) where Justice Boolell, after referring to some authorities, stated that the appellant’s conviction should be quashed because “for the long delay in lodging the information” whereas in the same case, Sooriamurthy Darmalingum v The State (295 SCJ 1997 per Justice Balancy and Lam Shang Leen), the case was tried anew but this time before Justices Balancy and Lam Shang Leen who stated that since there was no evidence that the accused has been prejudiced by the undue delay and the case was remitted to the Chief Justice. One of the leading local cases-Dahall v The State 1993 MR 220 where the appellant was tried some 8 years absence but an issue was raised as to its constitutional rights whereby he has not been tried within a reasonable time but the trial court held that he had left the country and therefore was responsible for the delay. When the accused is tried with undue delay the appellate court will detect whether the delay was abnormal and whether the accused was prejudiced by this undue delay. It is understood that even if there is undue delay, which is not denied by the court, no prejudice should be caused to the accused, defendant or appellant as the case might be-R v. Derby Crown Court, Ex parte Brooks 80 Cr.App.164. The facts were as follows: “In January 1984 committal proceedings were started against the applicant in respect of 16 charged under the Theft Act 1968 arising out of a series of fraudulent transactions which took place in 1978 and 1979 in connection with two companies of which the applicant was a director and responsible for the financial arrangements. The companies went into liquidation in 1980. The applicant had been sentenced in 1983 for making false value added tax returns to cover the aforesaid transactions. The applicant submitted that it would be an abuse of the process of the court to proceed with the committal on the ground, inter alia,of unconscionable delay. The justices rejected that admission and the applicant applied for judicial review by way, inter alia, of prohibition to prohibit the justices from acting as examining justices in the committal proceedings. Held, that it was clear that the delay had not prejudiced the applicant in the preparation or conduct of his defence because he had always admitted his guilt, the justices were correct in ordering that the committal proceedings should proceed and, accordingly, the application for judicial review would be It is to be noted that there is no statutory provisions whereby criminal prosecutions is time barred by prescription unlike in France-Duval v. District Magistrate of Flacq & DPP1989 MR 166 and what is a reasonable time includes the nature and complexity of the case, the nature of the evidence available and even public interests in the attainment of justice-Bell v DPP 1985 2 All ER 585, PC which was referred in Duval v District Magistrate of Flacq & DPP supra. It was decided in the case of A.G’s Reference No.1 of 1990 3 All ER 169, p.176 where Lord Lane CJ stated that: “No stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer prejudice to the extent that no fair trial can be held. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay.” Lord Lane’s approach was fully approved by the Judicial Committee-Tan v Cameron 1993 2 All ER 493, PC but the following observation was added: “Naturally, the longer the delay the more likely it will be that the prosecution is at fault, and that the delay has caused prejudice to the defendant; and the less that the prosecution has to offer by explanation, the more easily can fault be inferred. But the establishment of these facts is only one step on the way to a consideration of whether, in all circumstances, the situation created by the delay is such as to make it an unfair employment of the powers of the court any longer to hold, and nothing is gained by the introduction of shifting burdens of proof, which serves only to break down into formal steps what is in reality a single appreciation of what is or is not unfair.” The Judicial Committee of the Privy Council had to pronounce itself once more in the case of Attorney General of Hong Kong v Cheung Wai-Bun 1993 2 All ER 510 where Duffy J. said: “Ultimately, what has to be determined is whether proceedings can be fair, and is for the Even if an accused is not tried within a reasonable time the court would look into the seriousness of the offence charged, the heavy penalty provided by law, the protection of society, the character of the accused, the likelihood that he would tamper with witnesses and the court would refuse bail to the accused who were found charge of procuring 104 grams of brownish substance, the street value was of Rs624,000, which revealed the presence of heroin- The State v Unuth and Mungroo 391 SCJ 1996, per Justice Balancy. As there is no definition in law what amounts to a reasonable time the issue is left to the appreciation of the Court- in Lutchmeeparsad v The State 1992 MR 271 but the leading case as to the meaning of “reasonable time” is found in the case of Bell v DPP 1985 AC 937. A strong foreign leading case is R v Mallinson 1993 19 Commonwealth Law Bulletin; 1993 1NZLR 528 decided by the Court of appeal of New Zealand, where it was held: “On a construction of section 23 (1) 9b) of the New Zealand Bill of Rights 1990 that with regard to the right to consult and instruct a lawyer without delay, that the key point of the right to consult a lawyer without delay was that it was to be exercised before the legitimate interests of the person who was arrested were jeopardised. Therefore, a person should be informed of the right to counsel immediately on arrest, no particular formula is required so long as the content of the right was brought home to the arrested person”. The right to be informed of arrest and detention The Court, in the local case of Babeea v R 1981 MR 69, held that: ‘‘The right of a citizen to be informed of what the State holds against him is so important that specifically provided for whether he is under arrest or detention’’ Even if the court has reasonable suspicion that the accused committed the offence then the police has powers of arrest and kept in custody unless bail14 is granted-Sheriff v District Magistrate of Port–Louis 1989 MR 260. Rights of a person charged with a criminal offence Section 10 of the Constitution enacts the necessary provisions of a person charged with a criminal offence. Right to a fair hearing When a trial is scheduled in the morning but the applicant turned up in the afternoon claiming that he had walked to court from home when at the same time a police car had been dispatched to his home but applicant had already left home and the judge did not accept the applicant’s application and remanded in custody until the following for the pre-trial application concerning the admissibility of the statements is fair to the accused? This scenario is borrowed from the case of R v Cullen 1993 1 LRC 610. Defence counsel protested that the same judge should not hear the application, which would raise questions about the applicant’s credibility, but the judge refused to disqualify herself from hearing the matter. On appeal, the Supreme Court of New Zealand held that: “We are quite unable to agree that these circumstances required the judge to disqualify herself. It ignores the realities and necessities of daily life in the District Court. It is inevitable that defendants will appear more than once before the same judge and there may be some happening on a prior occasion, which is discreditable to the defendant. Judges are well able to put such things out of their minds, just as juries are expected to do from time to time under proper directions. The information objective bystander- EH Cochraine Ltd v Ministry of Transport 1987 1 NZLR 146 would not form the opinion that there was a reasonable suspicion of bias.” According to section 10(1) of the Constitution he shall beafforded a fair hearing within a reasonable time by an independent and impartial court established by law (section 10.1 of the Constitution)- in Babet v The Queen and Jandhoo v R 1993 SCJ 332 where the prosecution raised a motion that the case of rape to be held in camera but defence counsel objected. On appeal the Supreme Court held that in the particular circumstances the publicity will prejudice the interest of public morality and therefore the Magistrate of the Intermediate Court granted the motion for the prosecution. In the leading case of François v The State 1993 MR 15, approved in Seegoolam v R 1994 SCJ 125, where the Court, which was following with approval the case of R v London JJ ex parte South Metropolitan Gas Co. 1908 72 JP 137, held that: “ The decision whether there is a likelihood of bias is one of degree to be taken in each individual case, and the basis is the effect likely to be produced on the public mind as to the fairness of the administration of justice if in the individual circumstances the justice hears the case. One of the leading cases is Sip Heng Wong Ng and Ng Ping Nam v R 1985 MR 142 as to whether the appellant had received a fair trial, as provided by section 10(1) of the Constitution, was in issue. It was argued that one of the Magistrates who convicted the appellants had not heard any of the appellant’s submission. Appeals to the Supreme Court were dismissed and the appellants then appealed to the Privy Council. It was held by the court that in a criminal trial those delivering the verdict must have heard all the evidence. The court added that when the accused pleads not guilty, the magistrate had to be replaced after part of the evidence had been heard, the trial must recommence anew and the evidence recalled anew to hear all the magistrates in order to hear the accused’s evidence and submissions. In Lamarque v R 1974 MR 291 an information was lodged against the accused on two counts for larceny and stolen of possession of stolen property. He was brought to court two hours only after he has been arrested. Counsel for accused argued that he had only 2 hours to prepare his client’s defence but his argument was immediately turned down Right of the person charged with an offence in and outside court. The court and the Magistrates or judges who are hearing the case must observed that procedures both pre-trial and trial are observed, followed and respected in order to provide a fair trial to the accused. In R v Horseferry Road Magistrates’Court, ex parte Bennett 1994 1 AC 42, HL the House of Lords per Lord Lowry stayed a prosecution for abuse of the process of the court, international law was violated, extradition procedures disregarded and the legitimacy of the judicial process was in doubt. In England the Human Rights Act 1998 consolidates procedures so that the accused has a fair trial under Article 6 of the European Convention. Article 6 of the European Convention Presumption of innocence. The person charged with an offence is innocent until he is proved guilty (section 10(2)(a) Constitution), that he has the right to be informed as soon as reasonably practicable, in a language which he understands-in Sajeewon v R 1979 MR 102 and Babeea v R 1981 MR 67 and in detail of the nature of the offence (section10 (2)(b)) Constitution -restated in Police Kuderbux & Ors. 1994 SCJ 424 and followed in Amid v the State 236 SCJ 1995; per Justice Pillay and Naraynen). The leading case is R v Kramutally 1989 MR 198 where the accused was charged with murder and at the preliminary inquiry counsel for the accused moved that various witnesses give evidence in Creole, as the accused did not understand English. Section 14 and 189 of the Courts Act allow witnesses to depone in a language other than English. Refer to the case of Kunath v R1990 MR 303 and Privy Council No. 41 of 1992 where the Court held that it was the duty of the accused or his Counsel to bring to the attention of the Court that accused did not understand the language in which the trial was being conducted unless the accused had no complaint and the question of his right for an interpreter will not arise. Section 10(2)(b) and 5(2) of the Constitution coupled with the information are now the main fundamental constitutional rights of any accused before any court in the country as applied and explained thoroughly in the leading case of Police v Kuderbux 424 SCJ 1994, per Justice Forget, Pillay and Boolell.. In Babeea the court was following the English cases of R v Ellis 1973 CAR 77 and R v Williams 1977 AER 874 held that: ‘‘The taking and recording of the plea of an accused party is the surest way in which the Court discharges its responsibility in ensuring that the accused party has not been deprived of his right to be informed in a language that he understand and in detail, of the nature of the offence with which he is charged. Failure to record the plea, not withstanding that the proceedings are conducted on the basis that the plea is one of not guilty, will Interpreter Section 10(2)(f) of the Constitution also provides that he has the right to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence-Kunnath v R. Section 10 Constitution Provisions to secure protection of law (2) Every person who is charged with a criminal offence – (f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence If the accused is not conversant with the English Language the Court should order a retrial-Kunnath v The State–Privy Council No.41 of 1992 which is different from The State v Gwonto 985 LRC Const. 890 as no request was made by or on behalf of the defendant and the trial judge was unaware that they could not properly understand the proceedings; but the leading case is The King v Lee Kun 1916 1 KB where the defendant was indicted at the Central Criminal Court for the murder of one Clara Thomas and was convicted. He was a native of China and did not understand the English language. The Court held that: “That it was essential principle of the criminal law that for a trial for an indictable offence should be conducted in the presence of the defendant and that required not only his corporal presence but also that he should be able to understand the proceedings and decide what witnesses he wished to call, whether or not to give evidence and, if so upon, what matters relevant to the case against him. A defendant who had not understood the conduct of the proceedings against him could not, in the absence of express consent, be said to have had a fair trial. In the instant case as there was no preliminary hearing, the defendant had no prior knowledge of the evidence to be given by the prosecution and did not understand the evidence when it was given, the trial was, for all practical purposes, conducted without his presence. The trial judge should have ensured that the interpreter had translated the evidence to the defendant, or, having failed to do that, at least ordered a retrial as soon as the defendant had made clear his lack of understanding from the dock. Thus, a substantial miscarriage of justice had occurred and the conviction would be But the Court of Criminal Appeal dismissed the appeal on the ground that no substantial miscarriage of justice has actually occurred and if the evidence had been translated to the appellant the same verdict would inevitably have resulted. In Sayyad v The State of Mauritius 283 SCH 1994; per Justice Glover and Boolell the Supreme Court held that the applicant had a fair trial since an interpreter was present throughout the trial and application was refused with costs and that it is customary for witnesses to depone in Creole-Gurriah v The State 357 SCJ 1994; per Justice Forget and Sik Yuen, where the accused was convicted for the offence of larceny by wages to the prejudice of his master, and that the appellant does not understand English is not a serious ground of appeal, is of bad faith and devoid of merit. In the same line the case of Raman v The State 394 SCJ 1994; per Justice Forget and Sik Yuen where the Supreme Court held that since A legal representative of his own choice According to section 10(2)(d) of the Constitution: “Every person who is charged with a criminal offence (d) shall be permitted to defend himself in person or, at his own expense, by a legal representative of his choice or, where so prescribed, by a legal representative provided at the public expense.” This section of the Constitution is not an absolute one because there is not only a duty for the accused to retain counsel but to ensure that the legal representative is present at the trial to take up his defence and it is only of his laches that he is deprived of his constitutional right- Gooranah v R 1968 MR 122 followed in D. Coonjoobeeharry v The State 259 SCJ 1996, per Justice Narayen and Peeroo where the accused was convicted for sodomy and attempt upon chastity for which he was sentenced to undergo three years penal servitude and two years imprisonment with hard labour respectively. If section 10(2)(d) Constitution allows an accused to defend himself or to have himself defended by counsel of his own choice this does not, however, allows him either “On the other hand, the duty to retain the services of a legal representative of his choice lies on the accused party and the words “of his choice” are here again important: they necessarily connote the idea that, if he has a wide choice from among the members of the bar, the responsibility of the choice is his, not that of the court. The duty cast on the court is purely a passive one in so far as the presence of counsel at the trail is concerned, while the responsibility for the briefing of the legal representative and ensuring his presence in court devolves from the very words of the Constitution on the accused party”. However in the case of Hummujuddy v R 1961 MR 158 where accused was in no way directly and indirectly responsible for the withdrawal of his counsel the court concluded that the trial court had deprived the appellant of his right to counsel. In Ameer v R 1981 MR 545 the situation is different: the court considered that counsel’s motion to withdraw on trial day was an abuse of the process and the Magistrates of the Intermediate Court rightly refused the postponement asked for. Inops consolii. He has also the right to defend himself in person that is without counsel or ‘‘inops consolii’’(sect. 10(2)(d) Constitution). Section 10 Constitution Provisions to secure protection of law (2) Every person who is charged with a criminal offence –(d) shall be permitted to defend himself in person or, at his own expense, by a legal representative of his own choice or, where so prescribed, by a legal representative provided at the public expense. In Vishnu Seetapah v The State 46 SCJ 1996, per Justices Balgobin and Lam Shang Leen where the accused conducted his own defence before the trial court and was given the opportunity to cross-examine the prosecution witnesses, Khodabaccus v The State 153 SCJ 1994, per Justice Glover and Forget where the appellant was charged by threatening a person (his mother) to obtain money but the accused may be prejudiced in his defence if the Magistrate refused a postponement of the case and he is left undefended- Periag v The Queen 1974 SCJ 47 where the six accused were convicted by the District Magistrate on a count of swindling but in Cheekoree v The Queen 1974 SCJ 89 the court held that‘‘appellant personally applied for and was refused a postponement and the appellant took a risk when he went to Court on that day of being refused a postponement entirely due to his own laches for having left it so late to retain counsel who through indisposition could not attend Court’’, at his own expense, by a legal representative of his choice or where prescribed by a legal representative provided at the public expense in forma pauperis (section 10 (2)(d)) of the Constitution, the right to be examined in person or his legal representative the witnesses called by the prosecution before any Court (section 10 (2) (e) Constitution). It had been argued several times by counsel for the appellant that the magistrate refusal for a postponement had prejudiced the fundamental rights of the accused but the appellate court would quash a conviction unless the magistrate had made a wrongful use of his discretion for an adjournment and that a refusal to adjourn had resulted in a serious miscarriage of justice. In fact the responsibility that counsel attended on the day fixed for the hearing lay on the accused party –Ragoobeer v The Queen 94 SCJ 1974 per Justice Garrioch and Moollan. If the accused is not represented according to section 10 (2)(e) Constitution he has the right to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court on the same conditions as those applying to witnesses called by the prosecution: so he has the right to cross-examine witnesses for the prosecution and the magistrate must see that procedure and evidence are followed and respected so that the accused has a fair trial in return. The court record-Bhutoo v R 1964 MR 48 must show that the magistrate had done so otherwise there is a strong miscarriage of justice-Tarachand v R 1971 MR 281. According to the US Supreme Court in Faretta v. California 422 US 806, which was followed in the local case of R v Mensa 1989 MR 137 and Rudy Noel v The State 353 SCJ 1997 where it was held that: “The right to defend is personal…….And although he may conduct his own defence ultimately to his own detriment, his choice must be honoured out of “that respect for the individual which is the lifeblood of the law.” Once an accused had decided to conduct his own defence he may not submit it as a ground of appeal afterwards that is the Magistrates were wrong to deny him his constitutional right to be represented at his trial by counsel-Rudy Noel v The State (supra). Right to silence The defendant or appellant may choose not to depone. In Mahadeea v The State 264 SCJ 1997 the appellant was prosecuted on information containing two counts of having had sexual intercourse with a female under the age of 16. He pleaded not guilty but chose not to depone. The appellate Court which was following Ramdeen v R 1985 MR 128 held, per Narayen J, that: “The right of an accused person to silence, however, only means that the burden of proving his guilt beyond reasonable doubt is squarely on the prosecution. And no accused person should be expected to explain or contradict until so much has been proved as to justify the reasonable conclusion of his guilt, in the absence of an explanation, which it is, and must remain, with the province of the trial Court to accept or reject. And where an explanation has been given by an accused person in the course of the enquiry, its weight or otherwise when pitted against the evidence adduced by the prosecution may depend on a number of factors, including when it was given as well as on whether it was given on oath even though it may be forthcoming for the first time at Right to silence The defendant or appellant may choose not to depone. In Mahadeea v The State 264 SCJ 1997 the appellant was prosecuted on information containing two counts of having had sexual intercourse with a female under the age of 16. He pleaded not guilty but chose not to depone. The appellate Court which was following Ramdeen v R 1985 MR 128 held, per Narayen J, that: “The right of an accused person to silence, however, only means that the burden of proving his guilt beyond reasonable doubt is squarely on the prosecution. And no accused person should be expected to explain or contradict until so much has been proved as to justify the reasonable conclusion of his guilt, in the absence of an explanation, which it is, and must remain, with the province of the trial Court to accept or reject. And where an explanation has been given by an accused person in the course of the enquiry, its weight or otherwise when pitted against the evidence adduced by the prosecution may depend on a number Right to silence applies to both pre-trial (infra) –the third accused in the case of The State v Woosoye stated, when interviewed by the police in the presence of his counsel, that “mo pou garde le silence16” and trial process. Hence, a person charged with a criminal offence has the right not to be compelled to give evidence at the trial (section10 (7) Constitution) and the magistrate just as a judge sitting with a jury must not leave the latter under the impression that an inference of guilt should be drawn from the exercise of the right to silence-in Appalsamy v The State 345 SCJ 1994; per Justice Glover and Lam Shang Leen.. According to section 10(7) of the Constitution: ‘‘No person who is tried for a criminal offence shall be compelled to give evidence at the trial”. The accused or suspected person has a cruel choice. Is it better to lie on oath in order to mislead the police and the court or to remain silent? In case the accused has lied on oath it will be a serious case of perjury and on the other side the court punished for contempt of court! There is another choice: if the accused is innocent is it not better to tell the truth? The approach is rather psychological: if the accused tells lies, remains silent which is also an implied admission of the truth of an accusation or is not disclosing any evidence of information an inference which the court and jury can easily draw is that the accused is guilty or at least is trying to protect an accomplice. In such circumstances the prosecution case is strengthened and defence counsel case is weakened especially when it is an adversarial system. In Cramp 1880 14 Cox C.C. 390 the defendant was accused by the father to providing his daughter instrument to procure an abortion but the defendant remained silent and the trial judge concluded that the accused was accepting the accusation. In England since long there have been debates as the accused right to silence but the passing of Justice and Public Order Act 1994 put an end to further discussions. It is now admitted that this legislative law curtailed the right to silence as it originated from common law. Thus, the Mauritian Constitution guarantees the right to silence and this was confirmed in the case of Ramdeen v R 1985 MR 125 and Wahedally v R 1973 MR 13. The rule applies also to civil proceedings: in Bessala v Stern the plaintiff made an allegation in the presence of the defendant that he made a promise to marry her but he remained silent. The court considered that in cases where a reply was useful and necessary and that defendant is not denying it is evidence of the truth of what she said should be considered. In criminal cases, however, if the accused remains silent this denial will not amount to guilt or otherwise his constitutional rights will be infringed. There are conflicting views when the accused remained silent. In Parker v R 1976 1 WLR 1251, Mitchell v R 1892 17 Cox CC 503 and Parkes v R 1976 1 WLR 1251, the court did not rely on the judgment on the Privy Council case of Hall v R which was disapproved. Lord Diplock suggested in a Privy Case, Hall v R 1971 1 AER 322 where the latter was living with one Dapne and while the accused was out, she alleged to the police officers that the bag containing gandia belonged to him but he remained silent when the allegation was repeated to him, that: ‘‘It is not suggested that Hall’s acceptance of Dapne’s statement which was repeated to him was shown by word or by any positive conduct, action and demeanour. All that is relied on is his mere silence. It is well-known principle that a person is entitled to refrain from answering questions put to him for the purpose of discovering whatever he has committed a crime. A fortiori he is not obliged to comment when he is informed that someone else has accused him of a crime. It may be that in very exceptional circumstances an inference may be drawn from a failure to give an explanation or a disclaimer but in their Lordships view, silence alone on being informed of an accusation made against the accused cannot give rise to an inference that the person to whom this information is communicated accepts the truth of the accusation’’. Privilege is derived from the maxim: nemo debet prodere se ipsumper Lord Diplock in Sang 1980 AC 402. The accused has a privilege, which is born from common law, which is applicable in both civil and criminal proceedings: no one is obliged to produce evidence or to answer questions which would incriminate oneself but a confusion exists between privilege and right to silence. It seems that the rule is well settled since Tate Access Floors v Boswell 1991 Ch. 512 where the court held: “a man is not bound to provide evidence against himself by being forced to answerquestions or produce documents’’ per Sir Nicholas Browne-Wilkinson citing Rank Film Distributors Ltd v Video Information Centre 1982 AC 380, HL. In the sane line Director of Serious Fraud Office ex parte Smith 1993 AC 1 per Lord Mustill. There are cases where the accused may benefit from privileges that is he/she may not answer questions which will implicate him/her whereas the right to silence is different: it is the accused’s failure to answer police questions or to give evidence at trial. In R v Director of Serious Fraud Office, ex parte Smith 1993 AC 1, HL the House of Lords took a very a decisive point on this matter and held that all persons including suspects have a liberty at common law not to answer questions from the police whether or not the questions might incriminate them. However there is an important exception which is directly related to cases of fraud–the Commission of Enquiry Act and location of a foreign bank account-Hamilton v Naviede 1995 2 AC 75, HL which impliedly removed the privilege and where the suspect or accused is bound to abide by the decisions of the commission. In recent cases there have been allegated charges against attorneys involved in fraud cases relevant to mortgages and a Commission of Enquiry was set up to investigate in order to prove perjury or to contradict inconsistent testimony at trial. Some strong precedent cases in England clearly show that the privilege against self- incrimination has been removed from the accused or suspect for investigations-Staines and Morrisey 1997 2 Cr.App.R.426, CA. In England the Serious Fraud Office directs the interview in which allegated fraud should be conducted. Because of the seriousness of the offence the accused or suspect is advised to bring his legal advisor during the interview. In Re Pergamon Press Ltd 1971 Ch. 388 the Court of appeal confirmed that in this way there is less pressure exerted by investigators with principles of natural justice observed. When corporate bodies are involved, according to certain provisions of the Companies Act, they may be represented by an officer or agent or any person to produce documents and to answer questions on oath. Finally in civil cases a defendant who chooses not to testify where he is expected to