Govt’s Proposed Court of Appeal: A Step Forward or a Risk to Justice?

Qs & As

‘If foreign or retired judges are appointed, they should serve a single, fixed term of three or five years. Contract renewals should be prohibited to ensure judicial independence’

By Lex

The Mauritian government’s proposal to establish a Court of Appeal composed of retired justices and judges from other Commonwealth nations has sparked significant debate. Proponents argue that a specialized appellate court would address operational inefficiencies, expedite case resolution, and alleviate the current “musical chairs” approach, where Supreme Court judges review each other’s decisions. On the other hand, critics question whether the inclusion of foreign judges might signal a gradual move toward replacing the Privy Council, which has historically provided Mauritian jurisprudence with stability and international credibility.
The proposal also raises constitutional and structural concerns. How can the government ensure the court’s independence and impartiality? And, given that several Commonwealth nations have transitioned away from the Privy Council, is Mauritius ready to establish its own final appellate court? Lex explores these pressing questions, weighing the potential benefits and drawbacks of the proposed Court of Appeal and examining its broader implications for Mauritius’s legal system.

* What are the potential advantages and disadvantages of establishing an appeal court for Mauritius composed of retired justices and justices from other Commonwealth nations – as being proposed by the new government?

Two issues arise: the advantages of establishing a Court of Appeal, and the appointment of retired or foreign judges to it.

Firstly, a Court of Appeal would alleviate the Supreme Court’s current workload. Presently, judges handle chamber cases, preside over trials, and hear appeals. The appeal process, as it stands, resembles a game of musical chairs. For instance, Judges A and B might hear an appeal against Judge C’s decision one day, while Judges C and B review Judge A’s judgment on another. This cannot go on.

Secondly, the question of whether retired or foreign judges should serve on the Court of Appeal requires careful consideration. As Judge Vinod Boolell emphasized in an interview with l’express on Sunday, March 30th, we must proceed with caution.

* There are concerns about how the proposed appeal court will ensure consistency with Mauritian law and traditions, guarantee its independence and impartiality?

The Court will function as the current appellate division of the Supreme Court. Therefore, concerns regarding independence and consistency are unfounded.

* While improved accessibility and affordability for Mauritian litigants are potential advantages of the proposed court of appeal over the Privy Council, should these factors alone be sufficient justification for its establishment?

The creation of the Court of Appeal is unrelated to the Privy Council.
Unless the government decides otherwise, the Privy Council will remain the final court of appeal. Its rich jurisprudence has significantly benefited our local courts.

* There are however concerns that the proposal to appoint foreign judges to the Court of Appeal could be a precursor to replacing the Privy Council as Mauritius’s final courtof appeal. Would this constitute a disservice to justice in Mauritius?

It is crucial to clarify that the appointment of foreign judges, if implemented, would not inherently replace the Privy Council. These are distinct and separate initiatives. The establishment of a Court of Appeal with foreign judges is primarily intended to address the immediate pressures and operational inefficiencies within the Mauritian judicial system. It aims to streamline the appellate process, reduce the Supreme Court’s workload, and ensure more timely dispensation of justice.

The Privy Council, on the other hand, represents a long-standing tradition and a vital link to a rich body of common law jurisprudence. Its decisions have consistently provided valuable guidance and set high standards for Mauritian courts. The Privy Council’s expertise in complex legal matters, its impartiality, and its ability to offer a broader, international perspective are undeniable assets.

* However, the position that a Mauritian court of appeal (composed of foreign and retired judges) should not replace the Privy Council suggests a belief in the Law Lords’ infallibility. Is that belief grounded in reality?

Judges are not infallible. Once a decision is rendered, it stands.
Appeals heard by the Privy Council on cases from Mauritius have shed light on complex legal issues.

* Countries that have abolished Privy Council appeals include Canada, India, South Africa, Australia, and New Zealand. Some Caribbean nations – Barbados, Guyana, Belizeand Dominica – have replaced the Privy Council with the Caribbean Court of Justice as their final court of appeal. Hasn’t Mauritian jurisprudence matured sufficiently to justify establishing its own final court of appeal locally?

Mauritius, being a small country, is significantly dependent on foreign investment. The existence of a foreign court of final appeal provides an additional assurance of the local court’s efficiency and independence.

* According to the judiciary’s newsletter of 4 March 2025, ‘the manner of appointing judges to the new Court of Appeal Section will be critical to its independence and impartiality. This factor, along with their term of office and security of tenure, will be key considerations.’Should the government move forward with its proposal, what steps should it take to ensure the Appeal Court’s independence and impartiality?

If foreign or retired judges are appointed, they should serve a single, fixed term of three or five years. Contract renewals should be prohibited to ensure judicial independence.

* The Constitution stipulates that “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.” Does this constitutional restriction apply to appointments to the Court of Appeal, or solely to the Supreme Court? If it applies to the Court of Appeal, would a constitutional amendment be required to allow the appointment of foreign judges?

Constitutional amendments would be required to establish the Court of Appeal and to provide for the appointment of its judges.

* Furthermore, the practice of Supreme Court justices reviewing their colleagues’ judgments raises concerns. While justices are expected to be impartial, the potentialfor personal bias or conflicts of interest exists when they evaluate the judgements of their peers. Isn’t a separate and independent court of appeal the most effective way to address this issue?

It is difficult to conceive of a system where judges review the decisions of their peers. Although the judges’ independence is not in question, public perception may be otherwise.

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Mauritius Times ePaper Friday 4 April 2025

Tags:Caribbean Court of Justice, Constitution, Court of Appeal, Foreign Judges, Independence, Infallibility, Investor Trust, Judges, LEX, Mauritius Times, Privy Council, Supreme Court