OBITUARY : Justice Robert Ahnee

“I could hardly believe  my ears when, at 10.32 a.m. on Friday 16 July, only a few minutes after he had finished his arguments as to why Mrs. Jogee should not be deported until the determination of the case which she intended to lodge before the Supreme Court, Mr. Hawaldar, who had been appointed at public expense, burst into my Chambers to say that he had just been informed that his client had been deported the night before”, such was the opening paragraph in the judgment of  Jogee & Medagama  v Government of  Mauritius, Prime Minister and Passport and Immigration 1993 MR 133 delivered by  Robert Ahnee  Justice as he  unfurled his furore against the Respondents for what he described as contemptuous behaviour  vis –a-vis the court, a usurpation of the powers of the Judge in Chambers and a violation of  the independence  of the judiciary.  Soon after delivering judgment, he submitted his resignation.
As many of us who have served at the Attorney General’s Office would remember, it was a daunting experience to have to face Judge Ahnee on a Monday morning in an appeal case. He would instantly shoot questions before we had availed ourselves of the opportunity to open our mouth, testing us on the weaker points of our case. It became abundantly clear that he had studied the brief and expected quick and intelligent replies on legal issues which the court wanted to be enlightened. On occasions when the expected replies were not forthcoming, he would turn sarcastic or adopt his usual bombastic style, pompously claiming that during his time at the state law office, advocacy was much better and law officers much sharper. After a while we  got  used  to his legal  incursions and realized that he meant well and expected  legal arguments  well articulated and  cogently delivered .  Ahnee was not excessively legalistic in the traditional sense. There were occasions when he would welcome an attractive and innovative argument even if it meant a departure from established precedents if in the end it meant avoiding injustice.
The case of Norton v Public Service Commission 1985 MR 97 is such an example.
The Supreme Court was called upon to determine whether it was in conformity with the Constitution that the Public Service Commission had been conferred the power, under regulation 41(l) (h) of the Public Service Commission Regulations, to inflict as a disciplinary measure upon a civil servant a fine. The applicant, a Principal Assistant Secretary of the Ministry of Works, had been inflicted a fine representing seven days’ pay for misconduct.
The Supreme Court (Majority judgment) took the view that this power is intra vires the Constitution as “it had been the practice before 1968 for whoever made appointments to the public service in the former Colony, to offer appointment to posts in the service to the persons concerned on the condition that they agreed to be bound by the rules and regulations in force governing the public service. And with regard to the exercise of disciplinary powers, officers appointed to posts such as the one occupied by the applicant, namely Principal Assistant Secretary, were formerly governed by Colonial Regulation 65 (which enabled the Governor to punish « by way of fine or reduction in rank or otherwise »). And the rest of the service was subject to GOE 2/IX/8which, subject to what is stated in the next paragraph, permitted Heads of Department to impose a fine not exceeding the equivalent of 14 days’ pay.” And that “Since the law makers who promulgated section 89 of the Constitution must be presumed to have known the state of the law then in force, it cannot be suggested that when, in a constitutional instrument which is the supreme law of Mauritius, they transferred to Service Commissions, which are independent bodies answerable to none except the Courts of justice in certain specific instances, the power to exercise « disciplinary control » over public officers, they intended those commissions to be precluded from taking on the power to impose fines as well as other punitive measures of a pecuniary nature like, for example, reduction in rank or stoppage or deferment of increment.”
Justice Ahnee dissented being of opinion that “Whatever may have been the apparent powers of the then Governor of a British Colony over Her Majesty’s Civil Servants in the said colony, at a time when public officers held office during Her Majesty’s pleasure, cannot, in my view, be of any help in deciding whether the Public Service Commission, a body whose decisions are not subject to appeal but which has no more powers than those conferred upon it by the present Constitution of the sovereign democratic State of Mauritius, may, under the pretext of exercising disciplinary control, arrogate to itself the power to impose fines not specifically provided by a law voted by Parliament.”
  His dissenting judgment was preferred to that of the majority endorsed by the Privy Council.  Lord Ackner delivering judgment had this to say:
“ As was pointed out by Ahnee J in his dissenting judgment, whatever in the past, when Mauritius was a British Colony, may have been the powers of the then Governor over Her Majesty’s civil servants, cannot be of any assistance in defining the powers conferred upon the Public Service Commission by the Constitution. Sections 8(l) and 8(4) of the Constitution make it clear that there is no power to fine, unless there exists a law which gives power to impose a fine for a breach of that law. Before such a fine can be enforced, the breach of that law has to be established in the courts. Accordingly it must follow that the power given to the Public Service Commission to « exercise disciplinary control » does not include the power to inflict a fine. In the result regulation 41 (1)(h) in
so far as it provides for punishment by the infliction of a « fine », is ultra vires the Public Service Commission.”
The case of chairman of the MBC V Lui Fai 1993 MR155 is yet another example where an applicant wanted an injunction to stop the Director General of the MBC   from opening or tampering with letters addressed to him.   Justice Ahnee had no doubt as he put it that” no employer has the right to open a letter addressed to one of his employees. Section 12(1) of the constitution guarantees every person’s right to the enjoyment of freedom of expression and freedom from free interference from his correspondence.
 He will be missed by the legal profession. Let me convey on behalf of the Office of the DPP our sincere condolences to the Ahnee family.