“There is no reason to believe that the judiciary in Mauritius is not independent”

Judicial Independence

Qs & As

By Lex

There are no indications that our judiciary does not value its independence even if the current mode of appointment of the Chief Justice, by the President on the advice of the PM, may have to be looked into. Our Supreme Court operates differently from the judicial activism and public interest litigation that were pioneered by the Supreme Court of India. Nevertheless, it has important roles for instance in upholding the sanctity of our electoral processes. Lex shares his views.

* The textbook explanation of judicial independence is that the judiciary should be independent from the other branches of government, that is courts should not be subject to ‘improper influence from the other branches of government or from private or partisan interests’.Does our judiciary meet those criteria?

As at present advised, there is no reason to believe that the judiciary in Mauritius is not independent. Rumours create an atmosphere of mistrust, and any allegation which suggests otherwise has to be proved.

* Besides constitutional safeguards, could it be said that security of tenure and proper terms and conditions of service as well as prohibition of practice after retirement do contribute towards promoting the independence of our judiciary?

Of course, security of tenure is a key factor in maintaining the independence of judges. The prohibition to practise is only modelled on a British tradition that judges should not go into private practice as barristers. But they can act as consultants.

* It’s said and expected that that the independence of the judiciary has to be promoted or led by the Supreme Court, the highest judicial authority in the land. Have there been instances where our Honourable Judges have stepped forward to check unwarranted attempts to exercise control over the judiciary or to ensure that there is no misuse of power by any section of the government or political authority?

Judges are not supposed to enter into any public controversy. It is because of this that those who aim to or do criticize judges, either in private or in public, should bear in mind this factor.

In the case of the Slovak national, for example, the judge whose order was breached referred the matter to the DPP.

* What is the judiciary, as presently constituted, doing to ensure its independence?

The Chief Justice is appointed by the President on the recommendation of the Prime Minister. Is this the right way to go about it? It’s a question worth pondering. It could be left to the President to appoint the Chief Justice in his own deliberate judgment. But again, the President is a political nominee. All this does not look healthy. But once the Chief Justice is appointed, he/she should be totally immune from any influencefrom the executive.

* The Supreme Court has no power to enforce its decisions. What if the executive and legislative branches refuse to carry out its rulings?

Anybody or any institution that does not obey or comply with a court order is amenable to being punished for contempt of court.

* There have been reports recently of some young lady magistrates, mostly of the Intermediate Court, taking to task other powerful arms of the government — the police or even the SLO — and refusing to receive instructions in the exercise of their jurisdiction. A welcome change?

Any magistrate or any judge is a buffer between the executive represented by the police, the office of the DPP or the State and the general public. This is not to be viewed as a welcome change. This has always been the case though unfortunately some magistrates are perceived to be very leaning towards the police.

* The judiciary can also play an important role in ensuring that democracy does not give way to any form of dictatorship. But it can only play this role if it’s independent. Are there lessons to draw from the Indian judiciary, known for its independence and extensive powers, in that regard?

One cannot compare the Mauritius Supreme Court to the Indian Supreme Court. In India there is a very active and vibrant Supreme Court that places the rights of the individual at the forefront of its concerns without relinquishing its independence or its commitment towards fairness and impartiality.

Take, for example, the notion of public interest litigation that has been created by the Supreme Court of India. Do you see this happening here? In Mauritius before anybody can challenge any matter of general public interest, he must show how he has an interest in the matter, in other words he has to demonstrate that he has locus standi.

* The Supreme Court of India is said to have become ‘more active through constitutional interpretation’, and that is why judicial activism there has become quite popular with judges ‘protecting the rights of citizens or from political unfairness, formulating social policies, and ensuring justice even when the relevant federal bodies are not performing their duties’. Why was the judicial activism necessary when it’s the Supreme Court’s mandate to safeguard people’s rights and freedoms and ensure equal protection for all in the first place?

Indeed. The Indian Supreme Court is viewed as a very liberal and active court unlike the Mauritius Supreme Court that is considered to be quite conservative on many issues.

* The judiciary’s role in deciding the validity of parliamentary elections also necessitates independence of the judiciary. Have we done fairly well on that count, isn’t it?

Independence of judges in determining election petitions is of the utmost importance.

No election petition has been successful since the 2019 elections. This is not to say that the judges have not discharged their judicial functions independently.

However, one is entitled to ask questions about the recourse to computers on Counting Day. How could that be normal and legal? As a matter of fact, the failure of the Electoral Commission to inform candidates of the presence of the computer room, an issue that had been flagged by the opposition parties to contest the legality of the 2019 general elections, was noted by the Judges in the Erza Jhuboo petition when they said that it was a matter of “serious concern as it unnecessarily creates a situation whereby doubts as to the integrity of the counting process may arise”.

There is also the point made by Darmajai Mulloo, Chief Electoral Officer,before the Court that “partial results are not regulated by any enactment but still they are announced by the Returning Officers… and in the same manner, the computer room could be set up in the absence of any rules”. How could that be normal and legal?

* On the other hand, judges are not democratically accountable to the people, and there is the risk that an extremely independent judiciary might lack judicial accountability with possible abuse of power made by judges. What’s your take on that?

The only accountability is public opinion. Judges’ reputation rises or falls according to the perception that the public has of their decisions.

Mauritius Times ePaper Friday 13 May 2022

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