Dear Gavin,
Congratulations on your selection to become Attorney General. I find it my duty to pen these words especially given the fact that during the last ten years, the legal profession did not feel there was any person acting in that capacity and the judiciary was left without any reform worthy of its name. The former Attorney General severed all links with the legal profession and shut himself in an ivory tower. When I left office, many projects had reached completion but were selfishly shelved with the change in Government in 2014.
Coincidentally, we will be the only ones in recent history who would have held both the positions of Attorney General and Chairperson of the Mauritius Bar Council. This open letter contains proposals and suggestions which will bring about the much awaited changes to our legal landscape.
(i) Court of Appeal
Pursuant to section 80(3) of the Constitution and following the recommendations of Lord Mackay, there is an urgent need to set up a Court of Appeal separate from the Supreme Court. A judge of the Supreme Court should no longer sit on appeal against the judgment of another sister or brother judge. Appeals should only be heard by Court of Appeal judges. A Constitution (Amendment) Bill setting up the Court of Appeal was ready in 2013 to be introduced in the National Assembly. It also catered for a reform of the Judicial and Legal Service Commission. With the overall majority in parliament, the passing of the law will not be difficult. This Court of Appeal can be housed in the old Supreme Court building;
(ii) Lord Mackay Reforms
A Judicial and Legal Provisions Bill received the approval of Cabinet in 2013 and it caters for the outstanding reforms proposed by the Mackay Report;
(iii) Police and Criminal Evidence Bill
Having practiced at the Bar for a number of years and having a wide experience in Criminal Law, you will surely agree that we need a law akin to the United Kingdom Police and Criminal Evidence Act to do away with police malpractices, to regulate the way in which police enquiries are conducted and evidence is gathered. A Police and Criminal Evidence Bill was introduced in 2013. It was prepared with consultation with all relevant stakeholders including the police, the judiciary, the Office of the Director of Public Prosecutions and the legal profession. It was prepared in collaboration with the Law Reform Commission which enlisted the help and support of two experts from the United Kingdom;
(iv) Promotion of judicial and law officers
The promotion of judicial officers cannot be in the Attorney General’s Office(AGO) or the Office of the Director of Public Prosecution(ODPP) and similarly the promotion of law officers cannot be in the judiciary. This goes against our principle of separation of powers. Thought can be given to the setting up of a Legal Service Commission and a Judicial Service Commission which would then mean that both law and judicial officers will have distinct career paths. It is apposite to note that some law officers under actingship in the judiciary receive their salary from the AGO or the ODPP and likewise judicial officers under actingship in the AGO or ODPP still receive their salary from the judiciary ;
(v) Independence of the Office of the Director
of Public Prosecutions
(ODPP)
The ODPP was scandalously brought under the administrative control of the Attorney General’s Office in 2015. The Office should be given its independence anew while catering for law officers up to a certain level to be transferred so that they get exposed to both criminal and civil law;
(vi) Appointment of Judicial and Legal Officers
The Institute for Judicial and Legal Studies Act and the Law Practitioners Act make compulsory for anyone who aspires to become a judicial or law officer to undergo a training dispensed by the Institute. Contrary to law, this is unfortunately not followed. The new mode of appointment of judges should also be reviewed; The Memorandum of Understanding between the Institute for Judicial and Legal Studies and the École Nationale de la Magistrature de Bordeaux needs to be revived;
(vii) Trade fees
the former Government humiliatingly considered Barristers to be traders amenable to pay trade fees following an erroneous interpretation of the law. Representations made by the Mauritius Bar Association fell on deaf ears. This needs to be reviewed forthwith to correspond with our role as Barristers and to match our historical role in society;
(viii) Amendments to the Mauritius Bar Association Act
During my tenure of office as President of the Mauritius Bar Association, proposals were made to amend the Mauritius Bar Association Act. The Attorney General should again become the ex officio vice chairperson of the Bar Council. The law needs to be amended to give more powers to the Bar Council to discipline its members, the procedure for appeal needs to be reviewed, provision made for coopted members and for law officers from the Attorney General’s Office and Office of the Director of Public Prosecutions to pay membership fees;
(ix) Infrastructure
The Intermediate Court and our District Courts are in a lamentable state. Funds should be made available to renovate our District Courts and equip them with necessary facilities. The air-conditioning at the Intermediate Court needs to be repaired forthwith and the building restored. It is impossible to work there in summer. Both the Riviere du Rempart and Pamplemousses District Courts are currently sitting in the Pamplemousses District. This is contrary to section 93 of the Courts Act. The Riviere du Rempart Court needs to be relocated in its district;
(x) Delays
Delayed justice is injustice. Postponements, caused mainly on account of absence of witnesses have become the norm especially before the Intermediate and District Courts. A proper case management system needs to be put in place to curtail delays. Section 94 of the Criminal Procedure Act also needs to be amended to limit the circumstances in which a case can be postponed by Court;
(xi) Electronic Bracelets
Many Supreme Court judgments have highlighted the importance of introducing a modern form of monitoring of suspects released on bail. The Bail Act was amended during my tenure of office and provision was made for monitoring of suspects by means of electronic bracelets. An adequate budget needs to be found, the corresponding infrastructure put in place and thereafter that particular section of the law should be proclaimed to put us at par with other jurisdictions;
(xii) Relationship Bar/Police
The former Commissioner of Police, Anil Kumar Dip, arrogantly severed all links with the Bar Council shortly after assuming office in complicity with one former member of the Bar Council. With the incumbent, I do not think it will be difficult to reestablish the link. A healthy Police/ Bar relationship is important for the conduct of fair police enquiries and ultimately for the proper administration of justice;
(xiii) Legal Education
Lord Philips made constructive proposals in his report. Few proposals were implemented while others were completely forgotten. The recommendations should be implemented. Further the Law Practitioners Act needs to be amended to change the requirements to enrol for the Bar course. The Memoranda of Understanding between the University of Mauritius and University of Nottingham and Université de Limoges need to be revisited as well. More than 100 Barristers are called every year. This is very much on the high side for such a small jurisdiction like ours. Methods should be put in place to limit the number of Barristers ;
(xiv) Amendments to the
Code of Ethics
Our Code of Ethics was gazetted in 1999. During my tenure of office as chairperson of the Mauritius Bar Council, proposals were made for amendments to be brought to the Code of Ethics to reflect today’s realities and challenges. Unfortunately, those were not even acknowledged by the former administration;
(xv) Relationship with the Law Reform Commission(LRC)
With its limited resources, the Law Reform Commission does a herculean task. Regrettably, there was no interaction between the former Attorney General and the LRC who should have instead worked hand in hand for the betterment of our legal system and to bring about necessary reforms;
(xvi) The Independent Police Complaints Commission and the Human Rights
Commission
These two institutions have become white elephants with the public having little or no confidence in them. Although, they will not fall within the responsibility of your Office, I suggest you convince Cabinet to bring the necessary changes so that they can function as per the provisions of the law and regain public confidence.
2014 – 2024 will not be considered a productive decade for the judicial and legal fields. Expectations are very high and you have a huge responsibility lying in front of you where you will primarily need to re-establish confidence in the Office and develop a pragmatic approach with Barristers, Attorneys and Notaries alike. Necessary changes will, undoubtedly, meet the mandate of the current government.
I wish you a fruitful tenure of office.
Best regards,
Yatin Varma
(Former Attorney General &
Former Chairperson of the
Mauritius Bar Council)