Qs & As
‘In Kenya, the petition challenging the election of the president was determined within six weeks’
* ‘The rule of law exists. Its implementation depends on institutions whether it is the police, ICAC, our courts of law or the Office of the DPP’
We have asked Lex to share his views on some of the key issues and challenges that 2022 brought up for the legal community and the country’s institutions concerning the rule of law. Of prime concern has been the waywardness of the Police in many instances which have eroded public confidence and trust in the institution’s ability to function without fear or favour and with due respect for human rights of any accused person and his legal counsel. If Police and other institutions feel protected or encouraged in their course of action or inaction, we have a real problem with the rule of law says Lex.
* If you were to revisit the events of these last 12 months, at least the most significant ones and that have been the subject of ongoing legal battles, what would you say seems to have been an inescapable trend during the past year?
The legal battles that would have caught the attention of the public are the election petitions that have taken three or more years to be determined or to be withdrawn. This has occurred certainly due to the delaying tactics of those who were defending the petitions but also the lawyers representing the petitioners. Last but not least, the Supreme Court cannot escape unscathed from that state of affairs.
Second, in matters of arrests, the difficulties that arrestees and their lawyers encountered in getting the detainees released on bail even when the evidence forming the basis of the arrest is almost inexistent or very tenuous.
Third, the cases of police brutality on detainees are still to be investigated and determined in a court of law. What is the so-called Independent Police Complaints Commission doing about this matter?
Fourth, the battle against corruption seems to be neither here nor there. It seems to be a lost battle – as Vinod Boolell wrote in l’express last week. The independence of ICAC is just a joke.
* Law won’t work without independent courts. That means courts that aren’t under the thumb of the political powers that be. An independent judge can assure that your case will be decided according to the law and the facts — not the vagaries of shifting political currents, argues the American Bar Association. We seem to be doing well on that front and there is no reason why should put in doubt the integrity of our judicial system and the culture that prevails here, isn’t it?
There is no reason so far to put into doubt the independence and integrity of our judiciary. Though when it came to the electoral petitions that were set aside, some people were prone to make disparaging remarks about the judges. That should not be the case.
It should be borne in mind that if foreign investors start having doubts about the independence and integrity of our judiciary, they might have second thoughts about investing in our country. Judges also should ever be mindful of the international reputation of our judiciary.
* One particular electoral petition concerns no less than the Prime Minister himself, which is pending before the Privy Council for its final determination – possibly a few months before the next elections. One would like to think that it should be possible for the courts to set time limits for an urgent resolution of such cases. Could that be envisaged?
By the time the petitions are determined, they would have lost their meaning. By the time the judgment comes out, elections may be round the corner or even over. Some time back, an Opposition MP expressed his dismay about the long time it takes – two or three years – to hear an election petition whereas in other countries it takes only a few weeks.
Too many procedural issues have had to be dealt with; moreover, defendants raise objections after objections, arguments are heard and the Supreme Court takes time to rule on them.
* Two comments made by constitutionalist Milan Meetarbhan concerning electoral petitions relate to the time limit set by the law to file such cases – within three weeks of an election – which is rather time-constrained for the collection of evidence. Second, the fact that our case law focuses on the election of an individual rather than what may vitiate the outcome of an election at the national level. What’s your take on these issues?
Under the Representation of the People Act, an election petition must be presented within 21 days after the date of the return made by the Returning Officer to the Electoral Supervisory Commission of the member to whose election the petition relates. In the case of Rodrigues, it is 56 days. That time frame is extended to 28 days when there is an allegation of illegal practice and 70 days for Rodrigues.
As we can see, the delay is relatively short. By the time the petitions are determined, they would have lost their meaning. Why the Supreme Court takes so long to determine an election petition is a mystery. In Kenya, the petition challenging the election of the president was determined within six weeks.
The Representation of the People Act or the Constitution must be amended to impose a delay within which an election petition must be determined.
* There have never been more compelling reasons for the need for a separate constitutional court given other long-standing and many as-yet unresolved issues that have been hotly debated during the last few years. Beyond electoral petitions, there is also the sad spectacle that we are having to put up with in the National Assembly, the issue of community declaration of election candidates, the question of public interest litigation and now the regulations being imposed on private radio broadcasters. What are your reflections on this issue?
Milan Meetarbhan in his book on the Constitution has advocated the establishment of a constitutional court. Such a court with the power to determine the constitutionality of a statute before it is signed into law will no doubt be a consolidation of our ailing democracy. The situation as of now is simply ridiculous: any particular legislation, even if it’s considered to be unconstitutional, will remain in our statute books till the time that it is challenged in court
A Constitutional Court should have jurisdiction to hear electoral petitions on a fast-track basis without the procedural shackles in relation to the constitutionality of laws and regulations. It should also be able to hear cases filed against the Speaker of the Assembly for abuse of authority. The Court should be a separate one from the Supreme Court.
The composition of such a court should be carefully studied. It should consist of local and Commonwealth judges who are experts in constitutional matters. having judges of some Commonwealth countries on the court will serve to have the cases decided without undue delay and will also enrich our jurisprudence in constitutional matters.
* On the other hand, it would seem there is a general view that our District and Intermediate Courts do not take sides. They have been particularly bold and outspoken, even to the point of ruffling a few feathers. Does this mean that they are not amenable to nor are subjected to any form of pressure?
As at presently advised, magistrates are not subject to any form of pressure. But one point must be made clear. The promotion of magistrates depends on the Judicial and Legal Service Commission, and if magistrates hand out decisions that may ruffle some feathers at that level, then that may lead to an embarrassing situation. Read More… Become a Subscriber
Mauritius Times ePaper Friday 23 December 2022
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