“Successive governments have simply jettisoned the Mackay Report. Why? That remains a big mystery”

The Budget’s Proposals for Reform of the Judiciary

Qs & As

* ‘Delay in the determination of cases is endemic in our system… By the time the election petitions are finally determined the next elections will at our door’

By LEX


In 1998 Lord Mackay chaired a commission to reform the judicial system and legal profession of Mauritius. Various recommendations were made, and they were subsequently reviewed in 2006. Besides comments in the press by various stakeholders, the Law Commission also brought out an Opinion Paper on the recommendations of the 1998 Mackay Report (and its updated version), as well as the relevant parts of the 2002 Sachs Report on reform of the structure and functioning of the judiciary and other related issues. More recently, Budget Speech 2021-2022 announced that the Courts Act and relevant legislations will be amended, after consultation with the Hon Chief Justice, to introduce time limits for judgements and rules on adjournments. Modern case management techniques will also be implemented, and the court management systems upgraded. modernising the way in which justice works is a complex matter, and it may take more than a few paragraphs in the Budget to introduce deep and broad reform…


* Mention is made in the Budget Speech 2021-2022 at para 89 that the Courts Act and relevant legislations will be amended, after consultation with the Hon Chief Justice, to introduce time limits for judgements and rules on adjournments. In the same vein, modern case management techniques will be implemented, and the court management systems upgraded. There must be more that need to be reformed as regards our justice system and the judiciary’s workings, but is it the way to go about it?

What reforms are we talking about? To modernize we need trained people who are efficient and who can deliver. It is not only logistics that need to be reformed. There must be a change of attitude on the part of members of the legal profession in not delaying the hearing of cases by stretching the time that it takes to hear and determine cases or by moving for regular postponements. Each time a case comes to court, all sorts of technical points are raised in order to delay the hearing and final determination.

A recent classic example concerns the electoral petitions where the elected members whose elections are being challenged raise all kinds of objections through their lawyers. Many of them are ultimately rejected, but the harm is done as the cases have been beset by more delays.

* In the UK, the practice is to establish an independent law reform body, which is considered to be one of the most effective ways to bring about legal change or to improve the law. It is up to the British Parliament to implement any changes via legislation and at the moment about two thirds of recommendations have been implemented. Would that be the best way forward?

There should be regular consultations between the judiciary, the legal profession, the Attorney General and other stakeholders on how best to improve the system. We have a Law Reform Commission but to what extent its recommendations are implemented remains to be seen. The Chief Justice and the judges should also play an active role by suggesting proposals to the government through the Attorney General.

* We had the Presidential Commission, chaired by Lord Mackay, to examine and report on the structure and operation of the judicial system and legal profession of Mauritius. Its report was made public in 1997, but it does not seem that much has been achieved in terms of deep and broad reform. Would that be due to resistance to change?

One gets the impression that successive governments have simply jettisoned the report that contains a number of valuable suggestions. Why? That remains a big mystery.

* Lord Mackay had recommended the setting up of a Court of Appeal Section of the Supreme Court, but former Attorney General Y. Varma had mentioned in a press article in July 2018 that, at some point, resistance was shown against the reform on the basis of the argument that judges will lose their acquired right to hear appeals. He also added that, in his view, that objection did not hold water. What is wrong with having a separate court of appeal?

There is nothing wrong with setting up a court of appeal. At present judges indulge in a musical chair. One judge may sit on appeal of a colleague’s judgment. The next day the judgment of the appellate judge who heard a matter at first instance goes before the judge on whose appeal he sat. This is simply unhealthy. The right to hear appeals is not an acquired right. This is pure nonsense. After all the judges sitting at first instance will always have an opportunity to move to the court of appeal when a vacancy occurs.

* How are appeals being heard presently at the level of the judiciary?

A civil appeal from the Supreme Court judgment is heard by two judges. In case of disagreement, a third judge is brought in. Appeals from a criminal case heard by a judge are heard by a bench of three judges sitting at the Court of Criminal Appeal.

Appeals from the District and Intermediate Court are heard by two judges. In case of dissent, a third judge is brought in. If we had a court of appeal, all appeals should have been heard by three judges.

* Is it right that almost 30 years since Mauritius became a Republic we are still bound by strict English procedures when it comes to contesting decisions of a public body or of the Government?

This is an anomaly. Many of the English procedures were enacted bearing in mind the immunity of the Crown and all issues relating to the prerogatives of the Crown. There have been changes brought by legislation in the United Kingdom. Here, we follow the English procedures forgetting that we are now a Republic. It is high time that we adapt those rules to our own context without being hindered by all the shackles of the prerogatives of the British system. We tend to follow blindly these administrative procedures, and this is unfair.

* It also appears that procedures involved when it comes to challenging the constitutionality of a piece of legislation are quite cumbersome. Is that indeed the case?

Yes. There is no constitutional court as such. A law can stay on the statute book though it is deemed unconstitutional until it challenged following court proceedings. Section 46 of the ICTA has remained on the statute book and many have been prosecuted thereunder until part of it was struck down by the Supreme Court. Is that consonant with a country that boasts of its respect for the rule of law?

* The legal maxim “justice delayed is justice denied” has been oft repeated in different quarters, and several past Chief Justices have sought to remedy this situation – with little success however. Does this suggest that the matter can only be improved through appropriate legislations?

Delay in the determination of cases is endemic in our system. Serious thought must be given to that. The Privy Council has drawn the attention of the authorities regarding this matter.

* This brings us to the electoral petitions lodged soon after the 2019 general elections. We have not heard much about the cases to date. Wouldn’t this undermine public confidence in the system’s ability to deliver justice in a timely manner?

By the time the election petitions are finally determined the next elections will be at our door. There is a perception that this is being done deliberately in order to allow the government to carry on. This may be a wrong perception, but can the people be blamed? Why can’t there be a fast track procedure to hear these petitions?

* What about the method of appointing judges? Should that also be reviewed so as to rope in members of the Bar?

Judges are appointed by the Judicial and Legal Service Commission chaired by the Chief Justice and two other judges as well as the chair of the Public Service Commission. All the judges are, in a way, civil servants having pursued their career in the civil service from where they are appointed. No judge is appointed from the Bar. However, the question that arises is who from the Bar would leave a lucrative practice to sit on the Bench?

* What about the procedures concerning the elevation of barristers and attorneys to the status of Senior Counsels and Senior Attorneys?

The choice is made by the Chief Justice presumably after consultations with other judges and members of the legal profession. In the United Kingdom, QCs are appointed by the Queen, on the advice of the Lord Chancellor. He is in turn advised by an independent selection panel which receives and considers each application and makes recommendations as to appointments. Should we not have a similar system here?


* Published in print edition on 22 June 2021

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