Lord Bingham and Mauritius

By R.V

Thomas Henry Bingham, better known to us as Lord Bingham of Cornhill, eminent judge of the Judicial Committee of the Privy Council, died of lung cancer last week at the age of 76. He was widely recognised as the greatest English Judge since the Second World War. He was respected internationally for his commitment to the rule of law, the independence of judges and human rights, which he considered as universal and non-negotiable.

Lord Bingham was also uncompromising in rejecting an ever encroaching executive which had claimed arbitrary powers to fight terrorism at the expense of the judiciary. “The function of independent judges charged to interpret and apply the law,” he wrote, “is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.”

In these very columns, earlier in the year, in an article entitled “Chagos and Magna Carta”, I referred to the book of Lord Bingham on the Rule of Law which was released after he had retired as Lord Chief Justice. In that role he wrote a number of leading judgments which have defined the landscape of an evolving British Constitution whilst harmonising the principles of common law with the more dynamic pronouncements of European court of Human Rights.

In the case of R (Bancoult) V Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61, it was his dissenting judgment that caught attention. He concluded unhesitatingly that the prerogative order in Council prohibiting the Chagossians from returning to their homeland was unlawful, and reminded Britain of its international obligations and commitment to human rights. He was of the view that the prerogative order is a relic of the past and that the principle that every state must admit its own nationals to its territory is accepted so widely that its existence as a rule of law is virtually beyond dispute.

Lord Bingham dismissed the appeal made by the UK government on two grounds, namely on the irrationality of the decision which prohibited the Chagossians from returning to their homeland and on the breach of clear representations made by the UK government not to challenge the Divisional Court which held that the eviction of the chagossians from the Chagos was unlawful. There was also an undertaking that the UK government would introduce new Immigration Ordinance which would allow the Chagossians to return to the outer islands.

Lord Bingham has also shaped Mauritian jurisprudence. He did it in the case of Bishop of Roman Catholic Diocese of Port Louis and Ors V Suttyadeo Tenghur and Ors [2004] UKPC 9. The case, as many of us may recall, was referred on appeal to the Privy Council by a group of 12 “Catholic colleges” which had claimed the right to allocate 50% of their available seats in the first year of entry to pupils of Roman Catholic faith. The Supreme Court (Pillay (CJ) and Matadeen) had earlier ruled that such practice was not in conformity with the Constitution and in particular with section 16(2) after proceedings were brought by Suttyadeo Tengur, father of an 11-year old girl about to sit for her CPE.

Mr Tengur feared that the allocation system reserved exclusively for roman Catholics might prejudice his daughter’s admission to one of the Catholic colleges if she did not score highly enough in the examination to win a place within the government’s 50 per cent allocation but did score highly enough to win a place within the Catholic colleges’ 50 per cent if those places were to be allotted on the basis of examination results alone and without regard to religious affiliation.

Analysing the ambit of Sections 3 and 14 of our Constitution, he concluded that they are not incompatible with international norms. Section 14 only formally protects the right of certain classes of persons in the religious, cultural and social fields to establish schools at their own expense. However he argued that once the religious denomination receives grants to run its school, Section 16 of the Constitution comes into play. He then quoted with approval the pronouncement of Justice Lallah in Government Teachers Union v Roman Catholic Education Authority [1987] MR 88, 94 where he wrote:

“…. our State being secular in character, even where the Constitution in section 14(1) confers a fundamental right on religious denominations or religious, social, ethnic or cultural associations or groups to establish and maintain schools at their own expense, the responsibility of regulating such schools is reserved to the State, by section 14(2), in the interests of students to an extent reasonably justifiable in a democratic society.”

The issue that the Board had to decide, he went on, was whether the differentiation in treatment between Roman Catholic and non-Roman Catholic amounted to discrimination under section 16 of our Constitution.

A similar issue had also been considered by Rault J in Police v Rose [1976] MR 79, 81:

“To differentiate is not necessarily to discriminate. As Lysias pointed out more than 2,000 years ago, true justice does not give the same to all but to each his due: it consists not only in treating like things as like, but unlike things as unlike. Equality before the law requires that persons should be uniformly treated, unless there is some valid reason to treat them differently. In Kedar Nath v State of West Bengal AIR 1953 SC 404 the Supreme Court of India held that it is permissible to apply different measures to different classes of persons if the classification is based on an intelligible principle having a reasonable relation to the object which the Legislature seeks to attain.”

In Jaulim v Director of Public Prosecutions and the Honourable the Attorney-General [1976] MR 96, 100, the Supreme Court ruled to similar effect:

“There is inherent in the term discriminate and its derivatives as used in the Constitution a notion of bias and hardship which is not present in every differentiation and classification… the difference of treatment will be justified when it pursues a legitimate aim and there exists at the same time a reasonable relationship of proportionality between the means employed and the aim sought to be realised.”

Two important conclusions emerge from the judgment. Religious denominations wishing to exercise their right under Sections 3 and 14 of the Constitution to maintain denominational schools at their own expense would be free to give preference to students on basis of their faith. However where the denominational school accepts funding from the state, section 16(2) makes it clear that differentiation on grounds of creed for the purpose of admission would constitute discrimination in breach of the Constitution.

Above all, the judgment was written with such clarity that it had a pacifying effect on our society and avoided the unnecessary division that had been instilled in the heart of our education system to the detriment of our children.

* Published in print edition on 17 September 2010