Supreme Court of Mauritius, Constitutional Chamber, Pointu v. The Ministry of Education and Science, 27 October 1995, No. S.C.J. 350
Mauritius
General principle of equality
Use of international law as a guide for interpreting domestic law
Ratified treaty;1 Work of international supervisory bodies;2 Foreign case law3
New rules governing a competitive examination/ Action for breach of the principle of equality/ Use of international law as a guide for interpreting domestic law
Students in Mauritius took part in a competitive examination every year for entrance to the best secondary schools in the country. The type of tests set in that examination and the methods for calculating the marks had just been modified. Citizens of Mauritius instituted proceedings before the Supreme Court, claiming that the new rules contravened the principle of equality laid down in Articles 3 and 16 of the Constitution4 because they introduced different coefficients depending on the subjects the students took in the examination.
After analyzing the relevant articles of the Constitution, the Supreme Court of Mauritius then examined the possibility of interpreting the fundamental rights laid down in the Constitution in conjunction with foreign and international sources. It studied the judicial precedents and arrived at the following conclusion:
“In our opinion, the best approach is that a Constitution, and most particularly that part of it which embodies fundamental rights, should be interpreted in the light of history, its sources, and, whenever applicable, pronouncements on similar provisions either by national courts or by international institutions.”
Throughout its case the Court “considered, inter alia, human rights standards of international rank from the point of view adopted by the Committee on Human Rights in the case of Zwaan de Vries versus the Netherlands,5 in which the Committee held that Article 26 [of the International Covenant on Civil and Political Rights] imposes a code of good conduct on the State in the exercise of its legislative, administrative and judicial functions.”
The Supreme Court then examined the case law of the United States and India, adopting the category approach of the latter.6 On this basis, it held that the new rules introduced a difference in treatment between students, whereas those students all belonged to the same category, and that this was contrary to the “principle of equality before the law and of equal protection of the law7 laid down in our Constitution.”
Reliance on international and foreign law enabled the Supreme Court of Mauritius to rule that the rules of the competitive examination were discriminatory since they established differences in treatment between persons belonging to the same category. The new rules were thus declared unconstitutional.
1 International Covenant on Civil and Political Rights, 1966.
2 UN Committee on Human Rights.
3 India and the United States.
4 Article 3 of the Constitution of Mauritius: “It is hereby recognized and declared that in Mauritius there have existed and shall continue to exist without discrimination by reason of race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms (…).”
Article 16 of the Constitution of Mauritius: “1. Subject to subsections (4), (5) and (7), no law shall make any provision that is discriminatory either of itself or in its effect. 2. Subject to subsections (6), (7) and (8), no person shall be treated in a discriminatory manner by any person acting in the performance of any public function conferred by any law or otherwise in the performance of the functions of any public office or any public authority.”
5 UN Committee on Human Rights, Communication No. 182/1984: Zwaan de Vries v. the Netherlands, 9 April 1987, CCPR/C/29/D/182/1984.
6 The category approach was defined by the Indian Supreme Court in its decision on the case of R. K. Garg v. Union of India (1981): “Persons who are similarly situated must be treated equally, and persons in different circumstances must not be treated equally. The following two conditions must be met in order to examine the authorized categorization successfully: (i) categorization must be based on an intelligible difference which distinguishes persons or things who/which are grouped together from those who/which are not in the group and (ii) this difference must also be logically connected with the object of the law concerned. Whereas categorization can be based on several criteria, the important factor is that there should be a connection between the categorization and the object of the law at issue.”
7 Article 26 of the International Covenant on Civil and Political Rights: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
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