— SR BALGOPAL
In his speech for the Opening of the legal year 2013, on 4th January 2013, in Singapore, Chief Justice Sundaresh Menon had the following reflection on the role of law in society:
“Law is foundational to society. Far from restricting liberty, law assures it. By law, we establish order, and order is key to liberty. In the preface to the 1915 edition of “Robert’s Rules of Order Revised”, a work on the law applicable to meetings, the author observes: Where there is no law, but every man does what is right in his own eyes, there is the least of real liberty.”
He also referred to his own rise in Singapore, a country where opportunity is not mentioned for mere lip service, in the following words, which are worth their weight in gold independently of the fact that it is beyond doubt that our policy makers hold Singapore in such high regard:
“The legal profession, led by the Judiciary, is the custodian of the sacred trust to uphold the rule of law. Its essence is the assurance that no one is above the law; that everyone is answerable to it; that corruption will not be tolerated; that every citizen should have the greatest equality of opportunity; and that the ideals of our national pledge should be pursued by each citizen exerting his personal efforts and relying on the strength of his abilities, not on his race, language or religion. This has been the hallmark of our nation’s soul throughout its independent existence. My own story authenticates this. My late father landed on these shores 60 years ago with nothing but the clothes he wore, a spare set in his bag and a very modest amount of money. He came seeking a better future for his offspring but it would have been beyond his wildest and most audacious dreams to imagine that his son would one day be the Chief Justice. Yet it has come to pass and only because of our national commitment to the rule of law and equal opportunity. As a real beneficiary of this commitment, I am heavily invested in it. We have much to be grateful for as a people and it is vital that we remain rooted to these notions which are embodied in the Constitution and encapsulated in the judicial oath of office.”
Having considered the above, we may now turn to our shores where it is a well-known fact that the incumbent Chief Justice will be retiring at the very latest on 1 January 2014 when he attains the age of 67 years. It is customary that 6 months before retiring Judges proceed on pre-retirement leave so that they stop hearing new cases and wrap up their pending judgments. What is not clear in the current situation in Mauritius is whether the present Chief Justice will proceed on pre-retirement or not and if so, whether a new Chief Justice will be appointed.
In their wisdom, the framers of our Constitution have foreseen the possibility that a Chief Justice may not proceed with pre-retirement and may even work for some time after reaching retirement age. Section 78(1) of the Constitution reads as follows:
“78. Tenure of office of Judges of Supreme Court
78 (1) Subject to this section, a person holding the office of a Judge of the Supreme Court shall vacate that office on attaining the retiring age:
Provided that he may, with the permission of the President, acting in his own deliberate judgment, in the case of the Chief justice or in any other case, in accordance with the advice of the Chief Justice, continue in office for such period as may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that were commenced before him before he attained that age.”
The Courts Act, in section 3, set the retirement age of Judges at 67:
(1) The Supreme Court of Mauritius shall be constituted in the manner prescribed in Chapter VII of the Constitution.
(2) (a) Subject to paragraph (b), the retiring age of a Judge of the Supreme Court shall, for the purposes of section 78(7) of the Constitution, be the age of 67 years.
(b) Any person holding office as a Judge at the commencement of this Act may elect to retire at the age of 62 years.”
The Constitution, in section 77, refers to the appointment of persons as Judges and the salient parts of section 77 provide as follows:
“77. Appointment of Judges of Supreme Court
(1) The Chief Justice shall be appointed by the President, acting after consultation with the Prime Minister.
(2) The Senior Puisne Judge shall be appointed by the President, acting in accordance with the advice of the Chief Justice.
(3) The Puisne Judges shall be appointed by the President, acting in accordance with the advice of the Judicial and Legal Service Commission.
(4) No person shall be qualified for appointment as a Judge of the Supreme Court unless he is, and has been for at least 5 years, a barrister entitled to practise before the Supreme Court.
With regard to the order of precedence of Judges, we need to turn to the Courts Act to find what the legal position is. Section 7 of the Courts Act thus provides as follows:
“7 Powers, precedence and office of Judges
(1) Subject to the other provisions of this Act, all Judges of the Supreme Court shall have equal power, authority and jurisdiction.
(2) The Puisne Judges shall take precedence after the Chief Justice and the Senior Puisne Judge, in such manner as the President, acting in accordance with the advice of the Judicial and Legal Service Commission, may determine.
(3) Except with the approval of the President no Judge shall, with or without remuneration, undertake any other work or hold any other office.”
What may be deduced from the above sections is that only the Chief Justice is senior in the hierarchy of judges to the Senior Puisne Judge in the Republic. Further, it has been the practice to appoint the Senior Puisne Judge as Chief Justice once the latter retires from office. If past practice were to go by, one would expect the incumbent Senior Puisne Judge to be the natural successor to the Chief Justice.
Doubts have been expressed in certain quarters to the effect that the incumbent Senior Puisne Judge might not be appointed as the next Chief Justice. If this is factually correct a number of questions arise, one of which is whether, like Singapore, we can abstract from all other considerations and stick to established rules in the matter of appointing the next Chief Justice, in which case we can lay down a claim to respecting equality of opportunity where competence cannot be called into question. We hope that the rumours about the appointment of the next Chief Justice are mere rumours and are not the fruit of any pre-conceived views on the SPJ in person.
It is the President who appoints the Chief Justice after consultation with the Prime Minister. Here, ‘consultation’ is a term of art and it means that the President may seek the view of the Prime Minister but may appoint the person he deems best as the next Chief Justice. Given this legal context, it is highly unlikely that the President would choose to depart from established practice to appoint the next Chief Justice.
The appointment as a matter of course of the present SPJ as Chief Justice would also clearly show that Government is highly respectful of the equality of opportunity as set out in the Equal Opportunities Act which came into force on 1 January 2012.
Singapore, is, and should be a beacon for us as it consistently strives for perfection in everything it does and it makes sure that it affords real equality of opportunity to its citizens regardless of their background. We can dream that one day, our civil servants (including Chief Justices) can reflect on the long road they have undertaken to reach the top.
Emulating Singapore is fine; it is a system which upholds meritocracy and equality of opportunity; it provides clarity and certainty in appointing Judges; there is no scope for rumours or doubts. All is laid down in black and white. We may conclude by inviting readers to reflect on the opening words quoted in this article to convince themselves that Singapore will not deviate from established norms and principles and do all it can to support the independence of its Judiciary, irrespective of the personalities involved in appointments to high positions. We have everything to gain by following Singapore in its footsteps.