On 12 August 2022, I delivered a lecture entitled ‘Overdue Reforms of the Mauritian Legal System’ at the seat of the Mauritius Bar Association. This Open Letter is a highlight of the chapter on the Judiciary. I have deemed it fit to publish my views, as they address pressing issues of great public importance that concern not only the legal profession, but also the Judiciary and the country at large.
These issues are: institution of a separate Court of Appeal, reviewing Judges’ appointment, delay in delivering judgments, and televising Appellate court proceedings.
Separate Court of Appeal
Section 80(3) of our Constitution provides that the judges of the Courts of Appeal shall be ‘the judges for the time being’ of the Supreme Court. It is regrettable that, over half a century after Independence, the transitional ‘judges for the time being’ have assumed a state of permanence, whereby first instance Judges are still concurrently acting as appellate Judges. This is unacceptable.
In 1998, Lord Mckay’s Report on the ‘Reform of the Judicial System’ had concluded that the judges exercising the appeal jurisdiction should be freed from detailed consideration of cases at first instance, so that they may concentrate on the development of the law and have appropriate opportunity to consider the way that other jurisdictions have developed their law to deal with problems similar to those which arise in Mauritius. They thus recommended the institution of a new Court of Appeal, with the Chief Justice at its head. Nothing has since been done.
Although this is a matter eminently for the Executive to implement, the Judiciary will also have its part to play in the institution of such distinct Court of Appeal, as the two State organs will have to work hand in hand. It is sincerely hoped that political consensus shall prevail to bring about the much-awaited constitutional amendments.
Reviewing Judges’ Appointment
Section 77 of the Constitution provides that a barrister of at least 5 years’ standing may be appointed as a Judge of the Supreme Court. Section 85(1) provides for a Judicial and Legal Service Commission (JLSC), which consists of: the Chief Justice as chairperson, the Senior Puisne Judge, the chairman of the Public Service Commission, and one other member appointed by the President, acting in accordance with the advice of the Chief Justice.
The time has come to revisit the powers and scope of the JLSC, as was done in England in 2006 with the Judicial Appointments Commission (JAC). This is an independent commission, consisting of 15 commissioners, that selects candidates for judicial office on merit through fair and openly advertised competition, from the widest range of eligible candidates.
The JAC maintains and strengthens judicial independence by taking responsibility for selecting candidates for judicial office out of the hands of the Lord Chancellor and making the appointments process clearer and more accountable. Membership of the JAC is drawn from the judiciary, the legal profession, non-legally qualified judicial officer holders and the public. Its current chairperson happens to be an engineer.
It is also essential that Judges be appointed from the private Bar. This, as we all know, is the rule in England, but is unthinkably not even the exception here. It is inconceivable that candidates be selected solely from amongst judicial officers (Magistracy) and legal officers (Attorney General’s & DPP’s Offices), with seniority as the sole criterion. More than ever, the time has come to enlist the country’s brightest legal minds – after an open, rigorous and competitive selection process. Otherwise, standards may plummet, if this is not already the case.
There exists an incessant criss-crossing between officers of the judicial and legal services. This incestuous relationship should be discontinued, as it gives rise to a perception of cross-contamination between the Executive and the Judiciary, thereby violating the separation of powers between the two. Let there be a separate and distinct avenue of recruitment and promotion for judicial and legal officers respectively.
Timely Judgment Delivery
There is immense concern that certain Supreme Court judgments are long overdue, even spanning over a few years. Such excessive delay impacts negatively on the public confidence in our judicial system. Setting the example, our Chief Justice has taken the laudable initiative of spelling out in her judgments the date on which her cases were completed. The rule of thumb before the Privy Council is 3 months, and the exception is 6 months for complex cases. Let’s adopt it here.
This Government had prepared a Bill to impose time limits for judgment delivery, but it did not materialise. Be that as it may, this should serve as a stark reminder that the system should be overhauled, so as to afford Judges quality time to devote to their judgments.
Lastly, the practice of appointing Judges to sit on Commissions of Inquiry should be discontinued, as this detracts them from their core duties; and may, as often happens, drag them into the centre stage of political controversies and legal wrangles. Also, such inquiries are, as witnessed lately, tedious and time-consuming. Thankfully, judges are no more permitted to act as arbitrators in private matters. So much the better.
Televising Appeal Proceedings
Our Constitution affirms that all proceedings of every court shall be held in public. Former UK Chief Justice Lord Neuberger thus hailed the importance of Open Justice: “Unless justice is carried out publicly, there is a real risk that the public will lose confidence in the justice system, and there is a real risk that judicial standards will slip.”
Countries like the UK, Canada, New Zealand, Australia and South Africa have, over the past decade, stretched the notion of ‘open justice’. They have done so by means of video broadcasting and live streaming. Such is unfortunately not yet the case in Mauritius.
It is high time that our Supreme Court proceedings, like those of our National Assembly, be broadcast live. This, I hasten to add, should be confined to appellate proceedings, constitutional cases, and matters of great public importance – where arguments are essentially in law. Mauritian counsel appearing before our apex court, the Privy Council, are already acquainted with the televised proceedings there. There is no reason why this cannot be implemented here, as it will undoubtedly promote transparency and accountability in the administration of justice.
Conclusion
I shall conclude with these words of wisdom of Lady Hale, UK’s first female Chief Justice, like ours, of her country’s Supreme Court: “Judges must display moral courage in defending the fundamental constitutional principles of the independence of the judiciary and rule of law”.