Privy Council Appeal No. 28 of 1998 (1) Gilbert Ahnee (2) Sydney Selvon and (3) Le Mauricien Limited Appellants v. The Director of Public Prosecutions Respondent FROM THE SUPREME COURT OF MAURITIUS --------------- JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, Delivered the 17th March 1999 ------------------ Present at the hearing:- Lord Steyn Lord Jauncey of Tullichettle Lord Hoffmann Sir Iain Glidewell Sir Andrew Leggatt [Delivered by Lord Steyn] ------------------ 1. This is an appeal from a judgment, given on 9th March 1994, by which the Supreme Court of Mauritius found the appellants guilty of the offence of scandalising the court and sentenced each appellant to pay a fine of 100,000 Rupees. The finding was based on an article which appeared in the daily afternoon newspaper "Le Mauricien" on Monday, 5th July 1993. The defendants were respectively the journalist, who wrote the article, the editor of the paper, and the owner and publisher of the paper. The genesis of the article. 2. The background to the article of 5th July 1993 is as follows. In 1993 at a public meeting Mr. Harish Boodhoo, a local politician, made serious allegations about the impartiality of Sir Victor Glover, who was then Chief Justice of Mauritius, and generally called into question the conduct of business in the Supreme Court. Mr. Boodhoo sent a summary of his allegations to judges, members of the legal profession and the press. Sir Victor Glover brought proceedings for defamation against Mr. Boodhoo. On Monday, 5th July 1993 the Supreme Court sat to hear the trial of the action. At the outset Lallah J., the Senior Puisne Judge, observed that in view of the involvement of the Chief Justice he, Lallah J., had fixed the date of the trial, thereby allocating the case for hearing to himself and Boolell J. Then Lallah J. explained that there was a difficulty: the two judges who were due to hear the case were mentioned in the pleadings as potential witnesses. Mr. Boodhoo challenged the two judges and asked for an adjournment pending an appeal against a ruling in chambers on his applications to issue witness summonses to a number of persons who included the two judges. Lallah and Boolell JJ. granted an adjournment. 3. In the meantime, on Sunday, 4th July 1993, Mr. Ahnee, the first appellant, had prepared the article in which he made the following allegations:- (a) that Sir Victor Glover had improperly fixed the date of hearing of his own case, and had chosen the judges; (b) that Lallah and Boolell JJ. would hear the merits of the case despite the fact that they were liable to give evidence in the case. 4. Both allegations were wrong. A reporter of the paper, who attended the hearing in the Supreme Court on Monday morning, 5th July, should have realised the true facts. Instead he simply told Mr. Ahnee that the case had been adjourned. In the result the draft article was not corrected and "Le Mauricien" published it on the afternoon of Monday, 5th July. The contempt proceedings. 5. On 16th July 1993 the Director of Public Prosecutions applied to the Supreme Court for an order committing the appellants for contempt of "having publicly scandalised the Supreme Court in an article in the issue of the widely circulated daily afternoon newspaper ‘Le Mauricien’ of Monday, 5th July 1993". Counsel for the appellants raised a preliminary objection to the jurisdiction of the court. He contended that since the coming into force of the Constitution of Mauritius 1968 the Supreme Court no longer had the power to punish for contempt of court. By a judgment given on 22nd October 1993 the Supreme Court dismissed the preliminary objection. The ruling of the Supreme Court in this interlocutory judgment is challenged on the present appeal. 6. On 13th January 1994 the Supreme Court resumed the hearing of the merits. Mr. Ahnee, the writer of the article, and Mr. Grimaud, the reporter who had attended the hearing on Monday morning, 5th July 1993, testified. Mr. Ahnee accepted that his article was wrong in the respects already identified. On 9th March 1994 the Supreme Court found the appellants guilty of contempt. The Supreme Court ruled that it is sufficient for this kind of contempt that the publication was intentional and that the article was calculated to lower the authority of the Supreme Court. The Supreme Court further found (a) that the article imputed improper motives to the Chief Justice as well as to Lallah J., the Senior Puisne Judge, and Boolell J. and that it had been calculated to bring into contempt the administration of justice in Mauritius; (b) that Mr. Ahnee had failed to carry out any reasonable enquiry or to check his information concerning the facts he had stated and which he admitted to be mistaken; and (c) that Mr. Ahnee had not acted in good faith but with intention to mislead. The Supreme Court found that the editor and the publishers were also guilty of contempt. The judgment of 9th March 1994 is the second and final judgment under appeal. The issues. 7. Two preliminary matters must be made clear. First, this appeal is only concerned with the form of contempt which is so colourfully described as scandalising the court. Secondly, on the hearing of the appeal it became clear that the appellants were seeking to argue matters which were not placed before the Supreme Court, notably in respect of the impact of specific constitutional guarantees on the power to commit for contempt. Having heard full argument on all issues their Lordships will exceptionally rule on legal arguments which were not considered by the Supreme Court. Broadly defined the issues were as follows:- (A) Did the inherent power of the Supreme Court to punish for contempt survive the adoption of the Constitution? (B) If the answer to (A) is in the affirmative, is the inherent power to punish for contempt nevertheless in conflict with specific guarantees under the Constitution on any of the following grounds, viz. - (a) that it conflicts with freedom of expression; (b) that there is no definition of the form of contempt under consideratio n; (c) that there is no prescribed penalty; (d) that there is no right of appeal. (C) If the arguments based on the Constitution fail, is mens rea a necessary ingredient of the offence of scandalising the court? (D) Finally, counsel for the appellants put forward arguments addressed to the merits of the decision of the Supreme Court and the propriety of the penalty. ISSUE A: The Existence of the Power to Punish for Contempt 8. In 1850 the Courts Act established the Supreme Court as a Superior Court of Record. Section 15 of the Courts Ordinance 1945 provided that the Supreme Court "shall possess and exercise all the powers, authority, and jurisdiction that are possessed and exercised by His Majesty’s Court of King’s Bench in England". Since at least the decision in Procureur General v. Hitié [1908] M.R. 43 the Supreme Court on occasions before and after the coming into force of the Constitution on 12th March 1968 exercised the powers to punish for the offence of scandalising the court. But counsel for the appellants argued that the inherent power to punish for contempt was abrogated by the establishment of the Constitution. 9. Counsel for the appellants invited attention to the following provisions of the Constitution:- Section 5: "(1) No person shall be deprived of his personal liberty save as may be authorised by law - … (b) in execution of the order of a court punishing him for contempt of that court or of another court …" Section 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 freedom from interference with his correspondence. (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) in the interests of defence, public safety, public order, public morality or public health; (b) for the purpose of … maintaining the authority and independence of the courts … (c) … except so far as that provision or, as the case may be, the thing done under its authority is shown not to be reasonably justifiable in a democratic society." Section 76: "(1) There shall be a Supreme Court for Mauritius which shall have unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law other than a disciplinary law and such jurisdiction and powers as may be conferred upon it by this Constitution or any other law." 10. Counsel for the appellants also drew attention to sections 2 to 5 of the Mauritius Independence Order 1968 which provides for the continued operation of "existing laws", which by definition do not include the common law. This is a special instrument designed to ensure the continued operation of primary and subordinate legislation. In the Constitution itself "law" is undefined but counsel submits that it does not include the common law. It follows, he argued, that the inherent power to punish for contempt cannot prevail in the face of the provisions of sections 5 and 12 of the Constitution. He said there was a vacuum: after the establishment of the Constitution Parliament ought to have legislated for a power to punish for contempt of court but Parliament failed to do so. Counsel also drew attention to section 15 of the Courts Ordinance 1945 which in its original form provided that the Supreme Court "shall possess and exercise all the powers, authority, and jurisdiction that are possessed and exercised by His Majesty’s Court of King’s Bench in England".