TENGUR S v THE MINISTRY OF EDUCATION & SCIENTIFIC RESEARCH & ANOR 2002 SCJ 48

2002 MR 166

RECORDS NOS. 61618 & 54405 IN THE SUPREME COURT OF MAURITIUS In the matter of:S. Tengur Plaintiff versus The Ministry of Education & Scientific Research The State of Mauritius Defendants In the presence of:The Roman Catholic Education Authority Co-Defendant In the matter of:Y. Dinnoo Plaintiff versus (1) (2) The Ministry of Education & Scientific Research The State of Mauritius Defendants (1) (2)

In the presence of:The Roman Catholic Education Authority Co-Defendant JUDGMENT These two plaints with summons were heard together and we are delivering a single judgment, a copy of which is to be filed in each record.

In the first case the plaintiff, a tax payer, is claiming, in essence, that the tax paid by him to the second defendant is used by the latter to provide grant-in-aid to the schools run by the co-defendant, (called RCEA schools), which are authorized by the defendants to reserve 50% of their intake to students who are of the Roman Catholic faith or are

Christians. This authorization, according to the plaintiff, is discriminatory and contrary to sections 14 [presumably subsection (3)] and 16 of the Constitution in that students other than those of the Roman Catholic faith or Christians are discriminated against and prevented from joining any RCEA schools if their performance at the CPE examinations entitles them to gain admission to those schools (called the alleged constitutional infringement ). In the second case the plaintiff, a father of his then minor son who had registered for the 1995 CPE examinations, claimed that sections 14 and 16 of the Constitution were likely to be violated in relation to his son in that the RCEA schools were authorized by the defendants to reserve 50% of their intake to students who are of the Roman Catholic faith or are Christians. This authorization, according to the plaintiff is discriminatory and contrary to sections 14 [presumably subsection (3)] and 16 of the Constitution in that the plaintiff was prevented from sending his child to a RCEA school if the latters performance at the CPE examinations entitled him to gain admission to that school (the underlining is ours). When particulars were asked from, and supplied by, the plaintiff, the latter had to concede that the1995 CPE examination results of his son did not after all entitle his son to gain admission to a RCEA school. At the outset of the hearing of both plaints, learned Counsel of the co-defendant raised a preliminary objection to the effect that the plaintiffs in both cases had no locus standi to seek redress under section 17 of the Constitution as the alleged contravention of sections 14 and 16 of the Constitution was not in relation to the plaintiff as such in the first case whereas in the second case there was no likelihood of any contravention or

any contravention at all, given that the performance of the plaintiffs son at the 1995 CPE examinations did not entitle him to gain admission to a RCEA school, as indicated already. Learned Counsel for the plaintiffs and for the defendants in both cases were of opinion that the plaintiffs in both cases had standing to pursue their respective cases and have recourse to section 17 of the Constitution and assisted the Court by providing relevant material emanating from various jurisdictions. It is quite clear to us that, in the second case, the plaint of the plaintiff is misconceived since his stand has always been, as shown already, that the authorization granted by the defendants to the RCEA schools run by the co-defendant to reserve 50% of their intake to students who are of the Roman Catholic faith or Christians is discriminatory and contrary to sections 14(3) and 16 of the Constitution in that the plaintiff was prevented from sending his child to a RCEA school provided that his performance at the 1995 CPE examinations entitled him to gain admission to that school, which is not, however, the case here. Since the examination results of the plaintiffs son did not entitle him as a matter of fact to gain admission to a RCEA school, the plaintiff did not and could not have any cause for complaint in the event, as is made abundantly clear by his plaint and particulars thereof. The preliminary objection of the co-defendant is upheld and the plaintiffs action is consequently set aside. The plaintiff is to pay the costs of the co-defendant only. The short point to be decided in the first case is whether the plaintiff as a tax payer has standing or is an aggrieved party, as referred to in The Union of Campement Sites Owners and Lessees & Ors v The Government of Mauritius and Ors [1984 MR 100] at page 109, to have recourse to section 17 of the Constitution to question the constitutionality of the authorisation granted by the defendants, namely allowing the codefendant to reserve 50% of their intake to students who are of Roman Catholic faith or are Christians, resulting in the alleged constitutional infringement. It is pertinent to note that the plaintiff as a tax payer is not

questioning in judicial review proceedings the authorization granted by the defendants resulting in the alleged constitutional infringement. This is not the relief he is seeking. He is applying for redress in respect of infringement of his fundamental rights under section 17(1) of the Constitution. Section 17 of the Constitution states as follows (1) Where any person alleges that any of sections 3 to 16 has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter that is lawfully available, that person may apply to the Supreme Court for redress. The Supreme Court shall have original jurisdiction to hear and determine any application made by any person in pursuance of subsection (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of sections 3 to 16 to the protection of which the person concerned is entitled: Provided that the Supreme Court shall not exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law. (3) (4) ...... . . . . . ..

(2)

We have perused and properly construed the provisions of section 17(1) and (2) of the Constitution in the light of all material considerations, bearing in mind the historical background of the Constitution and the moral and political values enshrined in it. While taking into account those considerations, we have interpreted the language of that section without giving free rein to whatever we consider should have been the moral and political views of the framers of the Constitution vide Matadeen and Anor v Pointu and Ors [1998 MR 172] at p: 178.

We take the view that the allegation of contravention of any of sections 3 to 16 of the Constitution by a person, must affect or is likely to affect his interests vide also section 83 of the Constitution. The person can be, of course, depending on the context, either male or female or a

legal body. In other words, in order to have locus standi under section 17, the complainant must have a sufficient relevant interest vide the article of Ms Melanie Plimmer in the New Law Journal (1998), July 10 , quoted by learned Counsel for the plaintiff, Randolph B. Russell and Anor v Attorney-General for Saint Vincent and The Grenadines and Anor (1997) 1 WLR 1134, cited by learned Counsel for the defendants, and all the Mauritian cases decided in respect of sections 3 to 16 of the Constitution. The crux of the matter is whether the plaintiff as a tax payer has a sufficient relevant interest. Obviously a tax payer or a potential tax payer who questions any appropriation of funds in contravention of the provisions of the Constitution has standing vide D.R. Seegobin v The Honourable Minister of Finance and Anor [1998 SCJ 16] and the American case of Flast v Cohen 392 U.S. 83 (1968), referred to by learned Counsel for the plaintiff. By the same token, any eligible voter or potential voter has a sufficient relevant interest in questioning in constitutional proceedings the non-appointment of a Constituency Boundaries Commission within a reasonable time after a census of the population was held, as being in breach of section 33 of the Constitution vide Randolph B. Russell, cited above. We need not consider the case of Farooque v Secretary of the Ministry of Irrigation, Water Resources & Flood Control (Bangladesh) and Others (2000) 1 LRC since it is based on the Constitution of Bangladesh whose historical background and moral and political values are different from those of our Constitution. Indeed as

Kamal J. himself expressly stated at page 22, the Constitution of Bangladesh is not just a replica with local adaptations of a Constitution of the Westminister model among the Commonwealth countries of AngloSaxon legal tradition.

As rightly observed by Chief Justice Warren in Flast, the plaintiff as tax payer must establish a nexus between his status as tax payer and the precise nature of the constitutional contravention alleged. Applying this test to the facts of the present case, we have no hesitation in holding that there is no connection between the status of the plaintiff as a tax payer and the precise nature of the alleged constitutional infringement, namely discrimination under section 16 of the Constitution or impediment in sending to a RCEA school a child of whom the plaintiff is parent or guardian by reason only that the school is not a school established or maintained by the Government - vide section 14(3) of the Constitution. Indeed it is interesting to note that the plaintiff, himself, presumably realising the difficulty he faced concerning his standing tried before the hearing of his case to amend by motion his plaint by adding a second plaintiff acting in his capacity as father and legal administrator of a minor who had registered for the 1999 CPE examinations and wanted to gain admission to a State school or a RCEA school. When the motion came to be heard in Court, the plaintiff did not, however, pursue the matter. We consider in the circumstances that, what the plaintiff is in effect trying to do by his plaint, is to bring an action in Court to litigate a matter of general public interest. This is apparent from the complaint of the plaintiff, as indicated already, namely that the defendants had authorized the co-defendant to reserve 50% of their intake to students who are of the Roman Catholic faith or are Christians and such authorization has resulted in the alleged constitutional infringement. It is worth recalling in this regard that public interest litigation is alien to our jurisdiction.

The situation would have been different if the plaintiff in his capacity as a responsible party (see also Matadeen, already cited, at p: 174) has complained that his son, daughter or ward is being or is likely to be affected by the authorization granted by the defendants to the RCEA schools run by the co-defendant, resulting in a breach of sections 14(3) and 16 of the Constitution. In such a case, he would have been able to

establish that connection between him and the precise nature of the constitutional contravention alleged and thus his standing. This he has failed to do. Consequently, the preliminary objection of the co-defendant is sustained and the plaintiffs action is dismissed. We order the plaintiff to pay the costs of the co-defendant only.

A.G. PILLAY CHIEF JUSTICE K.P. MATADEEN JUDGE 6 March 2002 Judgment delivered by Hon. A.G. Pillay, Chief Justice For Plaintiff in both cases: Mr Attorney O. Bahemia Mr N. Patten, of Counsel Mr T. Gujadhur, of Counsel Mr N. Pertab, of Counsel

For Defendants in both cases: Principal State Attorney Mr S. Boolell, Ag. Assistant Solicitor General Mrs A.Narain-Ramloll, Principal State Counsel For Co-Defendant in both cases: Mr Attorney T. Koenig Mr R. DUnienville, Q.C. Mr G. Ithier, of Counsel