Readers’ Response/ Opinion
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Apropos “Privy Council: No collateral attack through civil action”
I would be grateful if you would kindly publish this rejoinder to R.V.’s article under the above caption as published in your edition of 16 to 22 July 2010 with the rider that at least your paper has faithfully reported the judgment. I wish to submit the following comments:
The judgment of the Privy Council is, in my view, a travesty of justice if one were to consider the following facts and matters and more particularly paragraph 41 of the said judgment. The public should be aware that following either a conviction or an acquittal, either party may institute proceedings for damages following allegations made pursuant to article 1382 of the Civil Code. My civil claim was directed against the Bholah brothers and default was recorded against them at the District Court but my claim was dismissed on grounds that have remained a mystery. I appealed against that judgment and again the Bholah brothers did not resist the appeal. Again my appeal was dismissed and the appeal court got in the ring by raising issues which were never raised at all i.e. my conviction by the Intermediate Court. I appealed to the Privy Council and on or about 15 March 2010, the State of Mauritius sought to intervene in the civil appeal on grounds of public policy. And on 29 April 2010 in the morning, the board granted leave to intervene and the matter was heard on 30 April 2010.
Intervention in any civil appeal is not permitted under our laws in Mauritius. My submission had always been that my claim was a civil claim simpliciter and I had not even averred my criminal conviction nor evidenced same before the trial court. But the fact remains that pursuant to section 7 (2) of the Criminal Procedure Act the verdict or judgment in the one case shall not be admitted as evidence in the other.
In the UK, a conviction was not admitted in a subsequent civil suit until the law was amended in 1968 whereby a conviction is now prima facie evidence that a person did commit the offence of which he was found guilty. French jurisprudence is not applicable in Mauritius — incidentally the Supreme Court (Domah and Angoh JJ) simply referred to the criminal conviction to dismiss my appeal. The law in Mauritius has not been amended. In the light of the decision of the Judicial Committee, I am seriously considering that my disciplinary proceedings be re-opened and Bholah be called or tendered as witness as disciplinary proceedings have been interpreted as being civil matter in the case of Chinien.
And I quote from para 41 of the judgment: “No equivalent amendment has been made in Mauritius. So the position remains that, in the present proceedings, for example, the defendants could not introduce evidence of Mr Hurnam’s conviction as evidence that he had committed the offence of which he was convicted. That would be of some possible relevance in legitimate proceedings brought by Mr Hurnam against Kailash and Bholah.”
Although RV touches upon same as an introductory matter and comments that the authorities should consider amending the law, he does not hint on the fact that the law should be applicable as it stands nor does he comment on the intervention of the State on ground of public policy which intervention is not permitted under section 81 of the Constitution. This procedure obtains in the UK under 27 (1) and (2) of the Privy Council Rules. Whether this provision is repugnant to the Constitution is still an issue which the Judicial Committee did not consider!
Whither Justice!!! And in the disciplinary proceedings against me, the conviction per se was used to have my name struck off the Roll and my motion that the conviction could not be used or that Bholah should be called as witness was refused by the Disciplinary Bench.
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Why ban private tuitions?
The Government Teachers’ Union (GTU) is one of the largest unions in Mauritius and consists of around 5000 members who are all primary school teachers. The GTU concurs with the views of your correspondent LEX on private tuition as stated in the Mauritius Times of Friday 16 July 2010.
As GTU president, I have always denounced the black sheep within the profession. The Union is also very much concerned about the 30% failure rate at CPE each year and will do what it can to bring down the rate of failure to its lowest possible level. However, banning private tuition will not be the ideal solution, nor even will the implementation of the ‘Enhancement Programme’ be for that matter. Private tuition is not meant for completion of syllabus but rather consolidates what has already been taught through drills and revision exercises under the teacher’s supervision.
I have always maintained that Std IV remains the foundation of the CPE and unless and until that exam is not done away with, the preparation of all pupils as from Std IV should remain unchanged.