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Yes, old Pussy Face, our lovely Attorney General, is back in the news. Remember how he caused us immense annoyance, inconvenience, and needless anxiety with Section 46 (h) (ii) of ICTA, in a rather pathetic effort to stifle our right to freedom of expression?
It really is quite tragic that people who draft our laws in English seem to be complete strangers to the English language, and end up drafting laws that even they cannot understand... I will explain that bit later on when I deal with his amendment to 46(h)(ii) which in my humble opinion suffers from the same verbal constipation and dyslexia that plagued the original version which is the subject of this post.
SEEGUM J v THE STATE OF MAURITIUS
Mr Jugduth Seegum was found guilty under 3 counts under Section 46(h)(ii) and sentenced to a fine of Rs 15,000 under each count. He appealed primarily on the grounds that 46(h)(ii) was unconstitutional, and that it was " in breach of the principles of legality and legal certainty as entrenched in Section 10(4) of the Constitution, which stipulates that " No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence".
The Supreme Court has again reemphasised the point mentioned in Ahnee v DPP, 1999, that Section 10(4) of the Constitution imposes a "requirement that in criminal matters any law must be formulated with sufficient precision to enable the citizen to regulate his conduct”....It goes further to say that "for a criminal law to pass the test of constitutionality under section10(4), it must be so worded that it allows the ordinary citizen to determine what constitutes an offence and what acts and omissions will render him liable to prosecution." Now, that is fairly easy for you and I to understand that the law must be drafted in a clear and sensible manner. Not our Attorney General, imbued with a massive sense of self importance that is quite incongruous with his achievements so far...
How can "causing annoyance, inconvenience, or needless anxiety to any person" be in any universe considered to be clear, direct, and not subject to all sorts of interpretations? As the Supreme Court has concluded, "The then section 46(h)(ii) was cast so widely that a wide array of communications, ranging from what are objectively clearly unacceptable communications (for example child sexual abuse imagery) to evidently innocuous messages from the standpoint of the ordinary man, may arguably fall within its ambit....In these circumstances, we are of the view that there is a risk that even an innocuous act can be held to be criminal under section 46(h)(ii). In view of that risk and of the resulting uncertainty, we believe that there was a need to define the offence under section 46(h)(ii) with sufficient precision by articulating clear and objective standards in the law so that a citizen could regulate his conduct and determine or foresee, to a reasonable degree, from the wording of the law, what acts and omissions would make him liable."
The Supreme Court concluded that " Section 46(h)(ii) certainly offers no clear distinction between a conduct which is innocuously annoying and one which is criminally reprehensible. It lacks precision and clarity and is “hopelessly vague”....Due to its lack of precision and clarity, section 46(h)(ii) breaches the principle of legality and deprives a citizen of the protection of the law, as secured undersection 10 of the Constitution."
One can only hope that the Attorney General and the jeune et dynamique 60 year old Pravind Jugnauth will have these words resonating in the vacuum that fills the space between their ears for a long time: " We hold that section 46(h)(ii) of ICTA (as it stood at the time of the commission of the present offences), in so far as it relates to the offence of using an information and communication service for the purpose of causing annoyance, for which the appellant was prosecuted, must be struck down as unconstitutional, being in breach of the principle of legality implied under section10(4) of the Constitution."
UNCONSTITUTIONAL, you 2 pillocks!
The new version of 46(h)(ii) now reads: "Which is likely to cause or causes Annoyance, Humiliation, Inconvenience, Distress or Anxiety to that person"....or AHIDA, as I call it as an acronym of all the elements of that 'offence'. I cannot see how this version does not fall foul of Section 10 of the Constitution too. It is as clear as mud, it gives the impression in the amateurish way it has been drafted that all the elements of the offence, the AHIDA, must be proven in order for the charge to stick. Good luck with that one, AG!
To all you people who have been woken up by Jangi's goondas in the early hours of the morning to answer a stupid charge under ICTA 46(h)(ii), this Supreme Court judgement opens the way for you to fight and win your case, and to then sue the arseholes in the police and ICTA for compensation for having the audacity to breach your Constitutional Rights.
Here is a copy of the judgement. Well done, the 2 judges, Antoine Domaingue and his Defence colleagues, for this well deserved slap on the ugly faces of those who can't even fulfil the role of dictators they have given themselves.
It really is quite tragic that people who draft our laws in English seem to be complete strangers to the English language, and end up drafting laws that even they cannot understand... I will explain that bit later on when I deal with his amendment to 46(h)(ii) which in my humble opinion suffers from the same verbal constipation and dyslexia that plagued the original version which is the subject of this post.
SEEGUM J v THE STATE OF MAURITIUS
Mr Jugduth Seegum was found guilty under 3 counts under Section 46(h)(ii) and sentenced to a fine of Rs 15,000 under each count. He appealed primarily on the grounds that 46(h)(ii) was unconstitutional, and that it was " in breach of the principles of legality and legal certainty as entrenched in Section 10(4) of the Constitution, which stipulates that " No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence".
The Supreme Court has again reemphasised the point mentioned in Ahnee v DPP, 1999, that Section 10(4) of the Constitution imposes a "requirement that in criminal matters any law must be formulated with sufficient precision to enable the citizen to regulate his conduct”....It goes further to say that "for a criminal law to pass the test of constitutionality under section10(4), it must be so worded that it allows the ordinary citizen to determine what constitutes an offence and what acts and omissions will render him liable to prosecution." Now, that is fairly easy for you and I to understand that the law must be drafted in a clear and sensible manner. Not our Attorney General, imbued with a massive sense of self importance that is quite incongruous with his achievements so far...
How can "causing annoyance, inconvenience, or needless anxiety to any person" be in any universe considered to be clear, direct, and not subject to all sorts of interpretations? As the Supreme Court has concluded, "The then section 46(h)(ii) was cast so widely that a wide array of communications, ranging from what are objectively clearly unacceptable communications (for example child sexual abuse imagery) to evidently innocuous messages from the standpoint of the ordinary man, may arguably fall within its ambit....In these circumstances, we are of the view that there is a risk that even an innocuous act can be held to be criminal under section 46(h)(ii). In view of that risk and of the resulting uncertainty, we believe that there was a need to define the offence under section 46(h)(ii) with sufficient precision by articulating clear and objective standards in the law so that a citizen could regulate his conduct and determine or foresee, to a reasonable degree, from the wording of the law, what acts and omissions would make him liable."
The Supreme Court concluded that " Section 46(h)(ii) certainly offers no clear distinction between a conduct which is innocuously annoying and one which is criminally reprehensible. It lacks precision and clarity and is “hopelessly vague”....Due to its lack of precision and clarity, section 46(h)(ii) breaches the principle of legality and deprives a citizen of the protection of the law, as secured undersection 10 of the Constitution."
One can only hope that the Attorney General and the jeune et dynamique 60 year old Pravind Jugnauth will have these words resonating in the vacuum that fills the space between their ears for a long time: " We hold that section 46(h)(ii) of ICTA (as it stood at the time of the commission of the present offences), in so far as it relates to the offence of using an information and communication service for the purpose of causing annoyance, for which the appellant was prosecuted, must be struck down as unconstitutional, being in breach of the principle of legality implied under section10(4) of the Constitution."
UNCONSTITUTIONAL, you 2 pillocks!
The new version of 46(h)(ii) now reads: "Which is likely to cause or causes Annoyance, Humiliation, Inconvenience, Distress or Anxiety to that person"....or AHIDA, as I call it as an acronym of all the elements of that 'offence'. I cannot see how this version does not fall foul of Section 10 of the Constitution too. It is as clear as mud, it gives the impression in the amateurish way it has been drafted that all the elements of the offence, the AHIDA, must be proven in order for the charge to stick. Good luck with that one, AG!
To all you people who have been woken up by Jangi's goondas in the early hours of the morning to answer a stupid charge under ICTA 46(h)(ii), this Supreme Court judgement opens the way for you to fight and win your case, and to then sue the arseholes in the police and ICTA for compensation for having the audacity to breach your Constitutional Rights.
Here is a copy of the judgement. Well done, the 2 judges, Antoine Domaingue and his Defence colleagues, for this well deserved slap on the ugly faces of those who can't even fulfil the role of dictators they have given themselves.
