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Friday, 28 December 2012 10:59

Privy Council grants Dhooharika leave to appeal

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The Law Lords of the Judicial Committee of the Privy Council (JCPC) have granted leave to Dharmanand Dhooharika, the editor in chief of weekly Samedi Plus, to appeal against the decision of the Supreme Court having on the bench the Senior Puisne Judge and the Acting Chief Justice, Keshoe Parsad Matadeen, and Justice Ashraf Caunhye,  convicting the latter to 3 months’ imprisonment for contempt of Court.
The decision for the appeal to proceed has been delivered despite the Notice of Objection duly served by Geoffrey Cox, QC assisted by Mr Rashid Ahmine, assistant Director of Public Prosecutions (DPP).

The bench convicted the appellant on 17 October 2011 following the decision of the DPP, Satyajit Boolell, Senior Counsel, to sue Dhooharika for Contempt of Court after the publication by Samedi Plus of a series of articles and comments he made following an interview of debarred barrister, Dev Hurnam, criticising the Chief Justice, Bernard Yeung Sik Yuen. The judiciary considers these articles to be defamatory and bring in disrepute our judiciary system and scandalise the Supreme Court.

After his hospitalisation for some days at  Apollo-Bramwell Hospital following a faint, Dhooharika was incarcerated at the Beau-Bassin Central Prison and later sent to the New Wing Prison and afterwards  at the open prison of Richelieu. He was liberated from prison on 31 October 2011. According to appellant’s Counsel, Sir Geoffroy Robertson, QC,  Dhooharika did not beneficiat from a fair trial and that the offence of contempt  of Court is an anachronism  in our judiciary system in a world where the liberty of the press and the right to criticise in civilised countries like Mauritius  is being respected. For the appellant’s counsel Dhooharika has acted in the exercise of his function as a responsible journalist.

“ In summary the use of the offence of scandalising the Court in respect of a journalist who reports allegation against an individual judge constitutes an anachronistic and unconstitutional letter on the fundamental right to the freedom of expression. It follows that in the present case, the Supreme Court erred in entertaining the DPP’s motion in respect of the Applicant”, the appellant’s counsel underlined. “The Supreme Court did not take issues with this respect of the DPP’s case and equally appears to have simply proceeded on the basis that the DPP has nothing to prove in this case. Such an approach is fundamentally erroneous.

In a case where a journalist has been accused of contempt, it is for the DPP positively to prove, to the criminal standard, that the allegations which gave rise to the proceedings were made in bad faith and other than in the public interest. Was it otherwise every criticism of a judge would amount to contempt, no matter that the criticism amounted to a fair comment and had been made in the public interest. In view of the DPP’s failure to prove to the criminal standard that the allegation against the Chief Justice were baseless and had been reported in bad faith, the Supreme Court to have dismissed the DPP’s motion.”

In the view of Geoffrey Robertson, the right to a fair trial is guaranteed under Article 10 (1) of the Constitution, the Supreme law of Mauritius, the right of the appellant has been flouted.  Furthermore he added that the case of contempt of Court was heard by two judges (Matadeen and Caunhye), who are subordinated to the Chief Justice (Bernard Yeung Sik Yuen) against whom the allegations were made. And as such it cannot be said that the Court to have been genuinely independent and impartial for the purpose of article 10 (1) of the Constitution.

“The fact that the Judges who heard the case against the appellant of necessity could not be said to be independent and impartial itself highlights the constitutionally uncomfortable nature of the type of prosecution,” finally added Geoffrey Robertson. According to the appellant’s counsel, the appeal of Dhooharika against the DPP will probably be heard sometimes in 2014.
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