Lessons from an Open Letter
In her open letter to the Chief Justice (see last week’s edition of Mauritius Times) Mrs Urmila Boolell makes a simple but fundamental point. The Supreme Court has in a long string of authorities recognized in all decision-making processes an obligation to fairness and natural justice. It should therefore apply the same principle of fairness and natural justice when managing its own business. This is what comes out from the open letter of Mrs Urmila Boolell. Unfortunately, it is not the first time that such a message is being delivered at the doorstep of the Supreme Court. Two years ago the Privy Council in the case of Panday v The Judicial Legal Services Commission 2008 UKPC 52 held that the decision of the JLSC to sack Magistrate Panday was done in clear breach of fairness and natural justice. Mr Panday was never told of the whys of his dismissal and never given an opportunity to make representations.
In the past many have questioned, albeit timidly, for fear of jeopardizing their career, the appointment process adopted by the JLSC based on seniority. Similarly, whilst our Judges pontificate on the merits of having a system based on meritocracy for the service, there is a nagging perception that their own appointment body does not always act in this wise. The difficulty about a process of appointment based on seniority is that the process can be arbitrary since the goalposts of seniority have no permanent fixture.
The unwritten law of seniority has always created an unsatisfactory climate and it serves no purpose here to refer to the malaise which this convention has given rise to in the past. The point however is the following: the Supreme Court, as custodian of our Constitution, will earn the unshaken faith and respect of the public as the ultimate bastion against abuse, provided that when managing its own business, it were to apply the rules of fairness and natural justice in the same manner as that which it imposes on everyone else. This is what again comes out from the open letter of Mrs Urmila Boolell.
Time and again the Supreme Court has never missed an opportunity to sanction public bodies when the rules of fairness and natural justice were flouted. The case of Baureek v Public Service Commission & Ors 1988 MR 1 is a prime example where the Supreme Court quoting from Garner’s Administrative Law, invoked the legal principle:
“As the range of contexts in which the rule applies has, particularly, in recent years, been extended, the courts have, perhaps inevitably stressed the flexibility of the rule in terms of the variable content of the obligations imposed. The basic idea remains in each case that due notice be given of an impending decision or action, that due notice be given of matters to be taken into account … and an adequate opportunity be afforded the citizen to make representations prior to the final decision or action being taken.”
Our Supreme Court did not stop there. It went further by reminding us that in Mauritius the position appears to be particularly stringent since we have a written Constitution which contains strict provisions proclaiming the need for a fair hearing as embodied under section 10(8) of our Constitution. In fact, section 10(8) provides that where an authority is required by law to determine the existence of any civil right or obligation, that authority shall be independent and impartial and shall proceed with its determination in a fair manner. And, much to its credit, the Supreme Court has played its role fully by ensuring that there is no authoritative abuse by public bodies.
All barristers have a legitimate right to aspire to become Senior Counsel. Fairness demands that, in the exercise of his power under section 9A of the Law Practitioners Act to appoint a barrister as a Senior Counsel, the Chief Justice should do three things. First, he should give notice of his impending decision to all barristers. Second, publish the criteria that would be taken into account before making an appointment and, third, give an opportunity to aspiring candidates to make representations prior to the final decision being taken. These requirements are universal principles of law and commonly referred to by lawyers as natural justice. What is the point to publish guidelines after the event?
Fairness requires that those who are likely to be concerned by the decision should be told of the guidelines well in advance of the decision-making process and be given an opportunity to make representations. If appropriate and practical, an indication as to why they were not considered eligible in the event they were turned down. The procedure adopted in the United Kingdom should serve as a model in future and it is hoped that the Bar Council invites its members to comment on that issue.
If anything else, the letter of Mrs Boolell has already prompted the publication of the guidelines used for the appointment exercise but unfortunately these guidelines add nothing to demarcate a Senior Counsel from his junior colleague. They consist of broad ethical rules which in any event every barrister must possess to practice law. There is no reference to the procedure to be adopted. The lessons to be drawn from the open letter of Mrs Urmila Boolell are numerous and certainly in the public interest. The Supreme Court should welcome the debate.