DPP v Ahnee, Selvon & Le Mauricien Ltd

1993 MR 360
1993 SCJ 412
Forget ASPJ, Yeung Sik Yuen J *
The three respondents (a journalist, the editor in chief and the
publisher of the newspaper Le Mauricien respectively) have been made
the subject of contempt of Court proceedings by the Director of Public
Prosecutions for having publicly scandalised the Supreme Court in an article
published in its issue of 5th July 1993.
Initially they took a preliminary objection which reads as follows:The respondents plead in limine litis that the Court has no power
and/or jurisdiction to hear the application inasmuch as:
(a)
(b)
(c)

there is no law governing such application contrary to the

Constitution.
the penalty is not prescribed by law and
in the present state of the case-law, there would be in the
instant application no appeal as of right either in Mauritius or
before the Judicial Committee.

The respondents did not plead on the merits of the case but their
Counsel stated in Court that as was the case in DPP v Mootoocarpen [1988
MR 195], the respondents would file their affidavits in case the Court were
to find that it had jurisdiction. Mootoocarpen was another case involving a
journalist of the same newspaper Le Mauricien in which contempt of
Court proceedings were taken and in which Mr Ollivry, Counsel retained by
the present respondents, had also the singular advantage of appearing. It
turned out, at the hearing stage, that Counsels statement was found not to
be quite correct since in Mootoocarpen the respondents affidavit had
already been filed before the plea in limine was mooted. A plea in
limine litis which has a civil connotation cannot, under our law, be taken
on its own without a respondent pleading also on the merits of the case. Our
Rule 18 does not permit a splitting of the defence and clearly states that no
demurrer shall be allowed. Counsel subsequently changed aim and stated that
the term plea in limine litis was wrongly used and that the defence put
in should be viewed instead as a preliminary objection in a criminal matter
questioning the jurisdiction of the court. The present contempt proceedings
being of a quasi-criminal nature it seems only logical that rules which govern
the conduct of civil proceedings are not a priori applicable.

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We must observe that grounds (a) and (b) of the preliminary

objection are not novel and were in fact mooted in depth and authoritatively
dealt with by our brothers Glover, CJ and Lallah, SPJ in Mootoocarpen. For
lack of a crisper term, the point of learned Counsel for the respondents
which consists in a fresh presentation of the same arguments, can be
considered as no more than a case of Mootoocarpen re-visited but with a
few additional ingredients thrown into the melting pot.
We do not find the arguments offered before us by Counsel for the
respondents on grounds (a) and (b) to be persuasive enough to justify a
departure from the gist of the decision in Motooocarpen regarding the
jurisdiction of the Court to hear contempt of court cases. We simply cannot
uphold the submission [ground (a)] that the power of the Court to punish for
contempt has been taken away by the Constitution. Indeed jurisdiction to
deal with contempt proceedings is found within the inherent powers of the
Supreme Court since 1850 when the Supreme Court was established in this
country as a Court of Equity with all the powers of the then Court of
Queens Bench. It can hardly be seriously argued that it is in line with the
spirit of the Constitution to maintain the authority and independence of the
Courts in a democratic society [as recognised by the Constitution itself] that
such inherent powers which is an essential tool to preserve judicial
independence and authority should after 1968 be removed for even curtailed.
Ground (b) is centred on the proposition that the absence of any
limitation on the penalty is contrary to the general principle of the law
nulla poena sina lege and to general concept of democracy and with
particular reference to the requirement that laws should be reasonably
justifiable in a democratic society which permeates the Constitution (sections
1, 11, 12 and 13). Counsel submitted that it is because the framers of the
Constitution realised that the inherent power to commit would be
inconsistent with a written democratic Constitution guaranteeing fundamental
rights that they made specific provision in sections 5 and 12 for the
requirement of a law of contempt to maintain the dignity and independence
of the courts. Counsel agreed that, logically, his argument would also apply
to cases of civil contempt where proceedings are initiated by a private party
to bring a contemnor before the Court to be dealt with for failure to obey a
Court order, a proposition which goes so far that it cannot be considered as a
sensible one.
The relevant parts of the two respective sections read as follows:5.

(1)
No person shall be deprived of his personal liberty save
as may be authorised by law.
(a)
..

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(b)

(b)
in execution of the order of a Court punishing
him for contempt of that Court or of another Court.

12.
(2)
Nothing contained in or done under the authority of any
law shall be held to be inconsistent with or in contravention of this
section to the extent that the law in question makes provision
(a)
(b)

..
for the purpose of .maintaining the
authority and independence of the Courts .

Counsels submission has some appeal if not much ingenuity but we

would find it rather surprising that the legislator would have failed to fill the
void which it knew had been created. We are rather of the opinion that the
term authorised by law and the law makes provision should not be
read restrictively as meaning statute law but should extend to case-law as was
decided in Mootoocarpen. We do not find that such an interpretation offends
the concept of democracy since the whole concept of scandalising the Court
springs from a legal system (the British one) which is itself reputed to be a
model and a staunch defender of democracy.
We must emphasise that
contempt proceedings for scandalising the Court is of a quasi criminal nature
and not an ordinary criminal case where all the ingredients of the offence
must at the very outset be outlined and where the sentence must be
prescribed by law. It cannot be gainsaid that this Court is also a Court
which is duly established by law. We find support for our proposition in the
case of Director of Public Prosecution v Belize Times Press [1988]
LRC (Const) 579 . Cotran CJ had the following to say at p. 589:I do not think that the respondents are charged with a criminal
offence within the meaning of section 6 of the Constitution (of Belize)
[equivalent of S 10 of our Constitutional]. The word charged
means charged in an ordinary criminal trial. The proceedings here are
summary and not an ordinary trial.
The respondents have been
ordered to appear to show cause why they shall not be punished for
contempt ..
There are also the words of Borrie & Lowe, The Law of Contempt,
1973, at p. 253, which were considered in the Belize:Although criminal contempt has some of the characteristics of any
criminal offence (Lord Denning, M.R., in Morris v Crown Office
[1970] 2 Q.B. 114, pp 123-124), particularly since the offender can
be punished by imprisonment or fine, it is best to regard it as an
offence which is sui generis. As Davies, L.J., said (in Morris v.
Crown Office ibid at p. 127) the procedure, if that is the apt

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expression, is entirely different in cases of criminal contempt from that

which applies in ordinary criminal cases.
As was explained in the case of Geemul [1992 SCJ 318] the inherent
power of the Judges to exercise disciplinary control over barristers embraces 3
essential elements.
First, the power to regulate their own practice and
procedure in the matter, as explained by Lord Denning in Attorney General
fo Gambia v NJie (1961) AC 617, subject to their overriding duty to act
judicially; secondly, there is the power either to take the initiative in
instituting disciplinary proceedings or to hear proceedings triggered off by a
third party; and thirdly, there is the power of sanction. Those 3 components
are clearly to be found also in the inherent power of the Judges to deal with
contempt of Court cases.
Finally we have to deal with ground (c) which is clearly premature.
The Supreme Court held in Mootoocarpen [1990 MR 31] (subsequently
referred to as Mootoocarpen No. 3) that there was no appeal as of right in a
case of contempt of court decided by 2 judges either in Mauritius in view of
S 69 of the Courts Act or to the Privy Council since it did not fall within
the meaning of criminal proceedings under s 81(1)(a) of the Constitution.
The question of linking jurisdiction with a right of appeal, as we view it, is
not one of cause and effect or of the primariness of the egg or the chick.
If we were to adopt the argument of Counsel on the point we would be
rather putting the cart before the ox. We need not view the purport and
effect of Mootoocarpen No. 3 on the point of our jurisdiction since it has
none but must observe that Counsel found himself in a rather awkward
position having to rely on Mootoocarpen No.3, with which he expressed
diffidence, to justify ground (c).
For all those reasons we are of the opinion that the 3 grounds have
no merit and we accordingly set aside the preliminary objection.
For Applicant:
State Attorney
Mr A Caunhye, State Counsel
For Respondents:
Mr Attorney C Mootia
Mr Ollivry, QC

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