Reaffirming our faith in key public institutions

It is important to understand that much of the progress Mauritius has recorded in the past has derived from the sound working of its key institutions. Many countries, even though endowed with rich natural resources, have lagged behind because their major public institutions failed to deliver according to rational expectations.

The perception of institutions doing or not doing the works assigned to them up to the required standard makes the whole difference between countries which forge ahead and those which mess it up. The more we empower the men and women in charge of running our critical institutions independently of all other considerations, the more effectively will they do what they have been mandated to do.

The Police and the Judiciary are two of the most important public institutions of the country.

The police has been cast into negative light in the investigation it has been carrying out over a fairly prolonged period so far in the Varma-Jeannot case. It is also being cast in negative light about its handling of the current investigations relating to allegations which have been made against the former Attorney-General, Rama Valayden. The impression has been created in this case that the latter’s arrest by the police on the basis of allegations, forms part of police vendetta against him for his having, amongst others, demolished in court the evidence brought by the police in the high-profile murder case of Michaela Harte. All this may have nothing to do with the reality but a perception of unfairness and persecution is being created in public. The Commissioner of Police will hopefully do his utmost to wipe out such perceptions fairly quickly.

Much tumult was caused in the judiciary recently when allegations were brought out in public about certain judges’ secretaries who would have deliberately acted, in exchange for payouts, to attempt to influence court decisions in favour of specific bribing parties. The investigation is still running its course but it came as a shock that there could be happenings of the sort at this level of this institution which stands as a fortress to protect our reputation as a rule-of-law jurisdiction.

This matter has hardly subsided when the Supreme Court got caught up last week in another controversy allegedly for non-respect of precedence among judges to fill up temporary vacancies at the court’s highest level. Judge Balancy, who may not be a hot favourite with the top brass of the judicial establishment, was said to have been bypassed in this respect contrary to established tradition, putting him under severe stress to try to understand any motives behind this supposed act of bypassing him.

Ironically enough, it is newsrooms that have become the courts of public opinion to consider whether Judge Balancy was unfairly treated in the Chief Justice’s decision to appoint rather his juniors in the hierarchy to fill up the temporary vacancies. Thus, an institution which is usually credited with dispassion and detachment to determine merits of cases brought to trial before it, is being made to appear in public as if human foibles and private preferences could have come into play to undermine a standing practice. The Chief Justice who has decided not to appoint Judge Balancy to act as Chief Justice during his absence has the legal power to do so. This is one point.

The other point is that whenever Supreme Court judges appear in public, the established practice has been for Judge Balancy to come in line just after the Chief Justice and the Senior Puisne Judge. No question here of the seniority dating back to when they were first called to the bar. What then must have gone berserk for him not to have been appointed in February 2012, as befits his ranking in the judicial hierarchy, which the Prime Minister has cited as an example in reply to a PNQ from the Leader of the Opposition on Tuesday last? And, why again this time? The imagination can run wild and this is what is happening in public, putting in question the expected serenity with which the Supreme Court is expected to run its business.

There have been occasions in the past when police arrests have been questioned in cases other than those referred to above. Questions have been raised in private and even in Parliament as to whether those powers of arrest should not have been curbed if only to address any element of arbitrariness and selectivity associated with them. No action has been taken however to lay down clearly criteria under which arrest would be inevitable when weighed against the concept of the citizen’s fundamental democratic freedom.

In the cases of both these key public institutions – notably the police and the judiciary – unnecessary emotions would have been contained with clear demarcations of limits in the exercise of powers conferred upon persons in authority. This is in keeping with the fundamental framework of public governance we have inherited from Westminster. Democracy is kept alive not only by borrowing from a great tradition. It also requires trimming down rough edges from the written-down texts from time to time to do away with all excessive discretionary powers that could give rise to ambiguities and hence to excesses by the wielders of power.

One can decide on any number of things in this context. Should judges speak their opinion on important changes to the law or should they abstain? Should sitting judges take part in private arbitration cases for money? Who decides which judge should be allowed to do so and which one can’t be so allowed? On what basis? Should a Chief Justice decide in his absolute discretion to fill vacancies in the judiciary without regard to seniority and merits? Or should such powers be exercised in a more collegiate cluster of decision-makers having the necessary equanimity? Should the police proceed to arrest only when it holds testable solid prima facie evidence? What kind of truly independent mechanism should be put in place to deal with cases where the police might have exceeded their bounds or acted contrary to law?

It is only by making recourse to our key institutions a fairly predictable matter that we can claim to belong to the higher League of Nations. The fundamental framework should be comprehensive, clear and easily understood the same way by one and all. That alone can consolidate our faith in our key institutions.

* Published in print edition on 25 October 2013