Grant of Bail and Separation of Powers – Legal Notes by Arvind Datar

Arvind Datar, party whip

by Arvind Datar

A decade ago, in State v Abdool Rachid Khoyratty  (2006) UKPC 13, an appeal from Mauritius, the Judicial Committee of the Privy Council delivered an important judgment that underlined the importance of the doctrine of separation of powers. An attempt to take away the powers of the court to grant bail was questioned on the ground that such legislation would violate the principles of separation of powers.

In 1986, the Parliament of Mauritius passed a law prohibiting the grant of bail in drug related offences. In Noordally v Attorney General (1986) MR 204, the Supreme Court of Mauritius struck down this provision as being inconsistent with the Constitution. Significantly, it was held that a criminal trial and all incidental or preliminary matters pertaining thereto had to be dealt with by an independent judiciary. The Constitution of Mauritius did not permit any legislation that enabled the executive to overstep or bypass the judiciary in its essential role.

Eight years later, the Parliament of Mauritius amended the Constitution permitting laws to be enacted that would enable legislation to restrict the grant of  bail. In 2002, a further amendment was made stating that persons arrested or detained for offences related to terrorism or drug related activity could not be granted bail until the criminal proceedings had been determined (vide insertion of section 5(3A)(a) and (b)). In pursuance of this amendment, statutory changes were made to the Dangerous Drugs Act, 2000 prohibiting grant of  bail for drug-related offences.

In 2003, a person was arrested for possession of 3 grams of heroin and under the new law, he was not entitled to be released on bail. When the issue of the validity of the constitutional amendment was raised, the District Magistrate took the view that this question of constitutional interpretation required a reference to the Supreme Court. The principal question posed was whether the prohibition of grant of bail by the judiciary was consistent with sections 1 and 7 of the Constitution of Mauritius.

The decision of the Mauritius Supreme Court is indeed interesting. The Constitution was specifically amended to prohibit the grant of bail. The law was struck down on the basis of section 1 of the Constitution of Mauritius which reads as follows:

“Mauritius shall be a sovereign democratic State which shall be known as the Republic of Mauritius”.

Further, section  7(1) of the Constitution provides as follows:

“No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.”

Now, section 1 could be amended only by an unanimous resolution of the Assembly/Legislature to be passed after a public referendum. On the other hand, section 7(1) could be amended by a resolution passed by three-fourth majority in the Assembly. The Supreme Court of Mauritius held that although the prohibition of grant of bail could be justified by the constitutional amendment of 2002, the prohibition imposed on the judiciary to grant bail amounted to interference by the legislature into functions which were intrinsically within the domain of the judiciary. Therefore, such a prohibition was in breach of section 1 of the Constitution and contrary to the notion of democracy whereby the grant or refusal of bail is under judicial control and only a judicial officer could decide whether or not bail should be granted.

This decision was taken on appeal to the Judicial Committee of the Privy Council and the leading judgment was delivered by Lord Steyn but the concurrent view of Lord Rodger of Earlsferry has a more detailed and better reasoning. He held that section 1 had a specially entrenched status and the intention was to preserve and protect the democracy in Mauritius. The essential feature of such a democracy was the separation of powers and to deprive the judiciary of granting bail tantamounted to amending section 1 of the Constitution. Thus, permitting an accused person to be locked up in jail till the termination of the trial was to create a different democratic status than that was contemplated by section 1. Lord Mance, in another concurring decision, observed that section 1 was not an empty general statement but a real bastion to protect and perpetuate among other things, the rule of law and the  existence of  an independent judiciary that was truly independent from the legislature and executive. A scheme that removed the court’s role in granting bail would contradict the basic democratic principles of the rule of law and the separation of judicial and executive powers which served as a primary protection of individual liberty that was entrenched in section 1.

This decision is an amazing example of how section 1 of the Constitution  of Mauritius became the basis to strike down a law that prohibited the grant of  bail. Our courts have held that separation of powers is a basic feature of the Constitution and yet allowed repeated inroads into the judicial domain by upholding legislation which takes away the right to grant bail and also takes away essential judicial functions and vest them in quasi-judicial tribunals.

In fine, the decision of the Mauritius Supreme Court merits careful reading by all lawyers and students of constitutional law.

(Arvind Datar is a Senior Advocate of the Madras High Court. He will be writing a fortnightly column for Bar & Bench on Constitution and other laws.)