“The separation of powers has always existed in Mauritius in spite of what people may say”

By and large, the Executive has never interfered in the Judiciary

The Price of Transparency: Assessing the Senior Counsel Bill’s Impact

Qs& As

By Lex

The Senior Counsel and Senior Attorney Bill 2025 in Mauritius marks a pivotal moment in the governance of the nation’s legal profession. Designed to replace the Chief Justice’s sole discretion with a multi-member Recommendation Panel, this proposed legislation aims to usher in a new era of transparency and inclusivity for bestowing the Senior Counsel and Senior Attorney titles. However, the Bill has sparked intense debate, fundamentally raising questions about the balance of power between the Judiciary, the Executive, and the legal professional bodies. Lex’s analysis will explore the governance implications of the new panel’s composition, its potential impact on the constitutional doctrine of the separation of powers, and whether it successfully mitigates the perceived flaw of ‘subjective discretion’ in the former system.”

* The Senior Counsel and Senior Attorney Bill 2025 proposes a significant legal reform, replacing the Chief Justice’s sole authority for recommending appointments with a new Recommendation Panel—to be chaired by the Chief Justice and composed of the Senior Puisne Judge, the Attorney General, and the heads of both the Bar Council and Law Society—to ensure a more representative selection process. Would you say that, from a governance perspective, it’s a positive step?

For several years, the prerogative of choosing members of the bar and attorneys to be Senior Counsel and Senior Attorney, respectively, was in the hands of the Chief Justice. The last selection has given rise to a lot of controversy, culminating in an action before the Supreme Court to challenge the selection made.
No doubt that this puts the Chief Justice in an awkward and embarrassing situation. What the proposed legislation proposes to do is give a panel the responsibility to choose those who should be elevated to a senior status.

* The Bill moves the appointment process from being almost exclusively Judicial (Chief Justice’s sole recommendation) toward a more mixed model that involves both the Executive (the Attorney General) and the legal profession (Bar Council and Law Society), thus diluting the Judiciary’s traditional autonomy over the process. Do you see the Bill reconfigure the constitutional doctrine of the separation of powers in Mauritius?

The selection of Senior Counsel and Senior Attorney has nothing to do with the separation of powers. The selection is not a judicial process; the selection of senior members of the profession is an administrative decision.

Up to now, the process has involved the Chief Justice alone, who may consult his/her colleagues and other members of the profession before making the final selection. The new structure is an independent selection body, making it a positive development for transparency.

* The Attorney General has expressed the view that the new procedure is intended to be “more transparent and inclusive.” Since the Attorney General’s statement implies a flaw in the former system, why did the professional bodies or aggrieved parties did not make their objections public, except for the three counsels — Jacques Tsang Mang Kin, Joyadeep Beeharry, and Avinash Renga Sunassee — who filed a legal case this year?

Up to the new proposal for the new legislation, the selection of senior members of the profession has been an extremely opaque procedure. We can speculate that the Chief Justice in his/her wisdom would adopt certain criteria, but we are not aware of what these criteria are. Given this opacity, it is difficult for the aggrieved parties to challenge the decision, as the grounds for objection are not publicly known or codified.

* Does the composition of the five-member Recommendation Panel, as outlined in the Bill, achieve a satisfactory balance between independence and inclusiveness?

As it is presented, the answer should be in the affirmative. The real impact will be seen when the panel makes its first selection based on the criteria listed in Bill and other established criteria.

* On the other hand, critics, including those in the Judiciary, might be of the view that the proposed Bill would open the door to political influences and corporatist rivalries. In what ways did the previous, strictly judicial process act as a safeguard against both political and corporatist influences?

First, the system as it exists now is not a judicial process. It was an administrative process. Since it is an opaque one, we cannot speculate whether there has ever been any political or other influence on the Chief Justice. We hope there has never been such an influence.

With four seasoned judges on the panel, it would be difficult or impossible to try and influence the panel. The judges form the majority, and we can trust them to be on their guard against any political influence. This judicial majority is the main safeguard provided by the Bill’s composition.

* The context is also important: the Bill is the latest example of what appears to be an ongoing conflict between the Judiciary and the Executive, following other recent controversies like the proposed creation of a Court of Appeal, the Afrinic case, and the appointment of Justice Bellepeau in relation to the latter case without informing the Chief Justice. Do you see the Bill fit into this broader pattern?

The way Judge Bellepeau was appointed as inspector in the Afrinic case was blatantly unconstitutional.
The creation of the Court of Appeal has nothing to do with any tussle between the Judiciary and the Executive; it was recommended by Lord Mackay and if he saw any danger of any conflict between the Judiciary and the Executive, he would not have come up with such a recommendation.
The new Bill intends to clear the air so that there is no conflict between the Executive and the Judiciary.

* The trend in democratic Commonwealth countries is towards “Independent Selection Panels/Committees” dominated by the Judiciary and/or the Bar itself. The most salient difference with the provisions of the Bill is the membership of the Attorney General on the Recommendation Panel, whereas international best practice favours insulating the selection body from the political executive to safeguard its independence and public perception of neutrality. What’s your take on that major difference?

Even if the presence of the Attorney General on the panel appears to be political, his presence alone would not carry any undue political weight if ever he attempts to do so.

Up now Gavin Glover has  always acted in consultation with the judges and the Chief Justice.

The Attorney General, as the government’s principal legal adviser, Up now Gavin Glover has a professional duty that tempers his political role. Up to now, Gavin Glover has always acted in consultation with the judges and the Chief Justice. In New Zealand, for example, the Attorney-General makes King’s Counsel (KC) appointments based on recommendations from selection boards, making the Attorney-General a key figure in the process.

* In democratic countries, particularly those within the Commonwealth, the appointment of Senior Counsels (or King’s Counsels) serves to recognize excellence in the legal profession. This honour is typically bestowed upon barristers or attorneys who have demonstrated exceptional legal skill, integrity, and a significant contribution to the administration of justice. To what extent do you think this has been the case in Mauritius so far, and would the Bill improve the perceived issue of “subjective discretion” in the current system?

So far, as explained, we do not know what criteria the Chief Justice has been applying. No doubt he/she would have considered seniority, advocacy, excellence in presenting cases in court, and good conduct. But we do not know. The new legislation sets out explicit criteria, but the list is not limited. This codification of criteria is the most significant improvement against subjective discretion.

* Given the established need for transparency, and the Judiciary’s legitimate concerns regarding political influence, can the Mauritian Executive and Judiciary achieve a mutually acceptable reform model that respects both the doctrine of Separation of Powers and the public’s right to an independent and transparent legal profession?

The separation of powers has always existed in Mauritius in spite of what people may say. There may have been disagreements on certain matters, but by and large, the Executive has never interfered in the Judiciary. The creation of a statutorily defined Panel, dominated by the Judiciary with professional representation, is a structural move toward mutual respect and greater transparency.

Mauritius Times ePaper Friday 10 October 2025