Matadeen v Pointu [1998] UKPC 9 is a constitutional law decision of the Judicial Committee of the Privy Council on appeal from the Supreme Court of Mauritius.

Mauritian children sat an annual Certification of Primary Education in English, French, maths and environment, to determine their secondary school.

The Privy Council advised that a true construction of the Mauritian Constitution made the right to anti-discrimination limited to just a few grounds in section 16, and for others, it was a matter for the legislature, the minister, or other public body.

Although the French Declaration was a legitimate aid, that could not curtail explicit powers of Parliament, and there was nothing in the ICCPR which helped either, in absence of a general equality clause.

It is, for example, frequently invoked by the courts in proceedings for judicial review as a ground for holding some administrative act to have been irrational: see Professor Jeffrey Jowell Q.C., "Is Equality a Constitutional Principle?"

A self-confident democracy may feel that it can give the last word, even in respect of the most fundamental rights, to the popularly elected organs of its constitution.

Judge Learned Hand, who was in principle opposed to the power of the Supreme Court to annul Acts of Congress, acknowledged in "The Bill of Rights," Oliver Wendell Holmes Lectures 1958, p. 69 that in this matter his opponents "have the better argument so far as concerns free speech:" "The most important issues here arise where a majority of the voters are hostile, often bitterly hostile, to the dissidents against whom the statute is directed; and legislatures are more likely than courts to repress what ought to be free.

It by no means follows, however, that the rights which are constitutionally protected and subject to judicial review include a general justiciable principle of equality.

In the United States, the interpretation of the equal treatment clause of the Fourteenth Amendment as a proposition "majestic in its sweep" (Regents of the University of California v. Bakke (1978) 438 U.S. 265, 284, per Powell J.)

The need for the courts to avoid usurping the decision making powers of the democratically elected organs of state has led to an elaborate jurisprudence which distinguishes between various grounds of discrimination, treating some (such as race) as "suspect" and requiring a high (some would say unsurmountable) degree of justification; others (such as age) as subject to a much more relaxed "rational basis" test (see Massachusetts Board of Retirement v. Murgia (1976) 427 U.S. 307) and still others as subject to an "intermediate" form of scrutiny.

9.481: "notwithstanding the views expressed in some of the submissions, we believe that, having regard to the relevant experience in the United States and Canada, it is preferable to enumerate in the Constitution an exhaustive list of grounds on which discrimination is prohibited.

This would avoid the kind of problems the courts have faced in Canada in recent years when trying to establish the relationship between the enumerated and the unenumerated grounds of non-discrimination.

The American and Indian Constitutions were drafted in a different age and have tended, particularly with regard to fundamental freedoms of the individual and to a greater extent than more modern Constitutions, to make broad and wide ranging formulations which have necessitated a number of amendments and specific derogations or else have required recourse to implied concepts of eminent domain or police powers in order to keep literal interpretations of individual rights within manageable limits.

Their Lordships consider that these observations, coming as they do from a judge with great experience in the international jurisprudence of human rights, should be borne carefully in mind.