“Transparency in all high-level appointments is essential to guard against nepotism or the perception of it”

Appointment of Senior Counsels and Senior Attorneys

Qs & As

By Lex

The appointment of 31 new Senior Counsels and Senior Attorneys on Monday 8 December 2025 — an event that should have been an unambiguous celebration of professional merit — has instead unfolded against an unusually turbulent backdrop. The special sitting of the Supreme Court, presided over by Chief Justice Bibi Rehana Mungly-Gulbul, took place amid legal challenges, institutional tensions, and pointed criticism from senior members of the profession.

While the newly enacted Senior Counsel and Senior Attorney Act 2025 has since clarified the nomination process and introduced a more structured, transparent framework, the controversies surrounding this year’s exercise continue to raise important questions about governance, meritocracy, and the evolving balance of responsibilities among the judiciary, the Bar and the executive. In this Qs & As, Lex explores the key issues that emerged before, during and after the ceremony: the legal contestation, the role of the new law, the criticisms voiced by the Attorney General, and the broader implications for the profession.

 * Do you believe the new Senior Counsel and Senior Attorney Act 2025 adequately resolves the long-standing concerns about transparency and discretion in the nomination process, or are there still grey areas that may lead to future legal challenges?

The new procedure for judicial appointments will be more transparent and will now involve not only judges but also members of the legal profession. Previously, recommendations were the sole prerogative of the Chief Justice, and the criteria considered were never clearly specified.

* The new law introduces a multi-member recommendation panel rather than leaving nominations solely to the Chief Justice. From a constitutional perspective, does this shift enhance institutional balance, or does it risk creating new tensions within the judiciary and the legal profession?

The new procedure is expected to enhance equity and transparency in the recommendations produced. However, whether serenity will prevail ultimately depends on the conduct and attitude of the panel members. The true measure of success—the acid test—will occur when the panel completes its first selection.

* Since the President still issues the Letters Patent on the recommendation of the panel, do you consider the Executive’s continued involvement in the final stage of the process appropriate, or should nominations be entirely insulated from executive influence?

Critics believe that the President’s direct involvement creates the appearance of Executive interference. Crucially, the model we have adopted is a direct copy of the UK system, where final decisions rest with the Lord Chancellor. Up to this point, the system has operated successfully in both jurisdictions.

However, the recent controversy stems from the President’s apparent removal of two names from the latest list of recommendations without providing any stated reasons. Had justification been offered, the ensuing controversy might have been averted.

* Do you think the judiciary should continue to play such a central role in conferring professional titles within the legal community, or should professional bodies like the Bar Council and the Law Society have greater authority in the process?

The judiciary is widely perceived as a strong, independent body.

Judges typically sit on the Judicial and Legal Service Commission (JLSC), where they are tasked with making recommendations for the appointment of judges and other high-ranking legal officials.

The participation of sitting judges in this process is vital as it confers greater credibility to the selections made by the panel.

* The new Act introduces defined criteria such as competence, integrity, contribution to jurisprudence, and 15 years of practice. In your view, how should these criteria be applied in practice to ensure genuine merit-based selection rather than perceived favouritism?

Transparency in all high-level appointments is essential to guard against nepotism or the perception of it.

The concern about the criteria for appointing Senior Counsel and Senior Attorney is a topic that has led to legal reform in various jurisdictions, aiming to move away from opaque systems toward clearly defined, merit-based processes.

In fact, the initial lack of clear statutory criteria for these prestigious honorary titles in many places led to significant concerns about opacity.

* Given that there was a court challenge filed just before the nominations, what legal lessons should be drawn from the fact that the challenge against the previous nomination process was effectively overtaken by new legislation? Does this create a precedent for legislating in the middle of litigation?

It was within the rights of the complainants to challenge the fact that they were omitted from the appointment process. The pertinent legal question was whether they possessed locus standi—that is, a sufficient legal basis for the challenge.

The conferment of the title of Senior Counsel or Senior Attorney is not a right; it is an honorary privilege. Consequently, the decision by the challengers to file a legal action may have been ill-advised.

It was entirely proper for the legislature to enact new legislation to formally establish criteria and procedures, thereby resolving the existing deadlock.

* The DPP highlighted that the last round of appointments occurred in 2016. What factors, in your view, contributed to such a long gap, and could the absence of regular nominations undermine the development of the profession?

While the Chief Justice certainly held significant influence in the past, the system’s reliance on a single individual could be a point of concern.

Perhaps there was a genuine assessment that no members of the profession were sufficiently deserving of the honour at that specific time, or perhaps the appointments were deliberately avoided to pre-empt or mitigate controversy.

Mauritius has unfortunately become a country where high-profile appointments in Mauritius are habitually mired in controversy. This makes the establishment of clear, objective criteria even more crucial to safeguard the integrity of high-level positions.

* Several senior figures, including the Attorney General, publicly criticised the manner in which the ceremony was conducted. Legally or institutionally speaking, what does such a public disagreement signal about the current state of relations between the Bench, the Bar, and the Executive?

They are absolutely correct. But once differences and disagreements have been thoroughly addressed and resolved, the system should indeed continue to operate in serenity and according to both established legal rules and well-established tradition.

The resolution of such disputes aims to facilitate the ability of the institution—the judiciary in this instance—to execute its critical functions effectively. Adherence to both the letter of the law and honoured procedural traditions is vital for maintaining public confidence.

* Do you think the new, clearer law will reduce future challenges to SC/SA appointments, or has this year’s controversy made further legal scrutiny more likely?

Complete satisfaction is an unrealistic expectation as long as the distinction of “Senior” remains a privilege conferred upon a select portion of the legal profession.

The realistic approach is to now closely observe how the newly instituted system operates in practice, and to gauge the reaction and level of confidence it generates among the legal fraternity and the public. The success of the reform will be measured by its sustained ability to demonstrate transparency and meritocracy.

* How damaging do you think this episode has been to public confidence in the legal profession, and what steps should the judiciary and legal bodies take to restore a sense of unity and credibility?

There is little doubt that the way the ceremony unfolded, together with the concerns voiced by some members of the profession, has had an impact on the overall atmosphere and public perception surrounding both the judiciary and the legal profession. It is possible that the situation might have been eased had established practice been followed more closely.

As things stand, certain decisions have given rise to discussion about the considerations that shaped the process. The priority now is to reinforce unity within the profession and maintain confidence in the independence and integrity of the judicial institution.

Mauritius Times ePaper Friday 12 December 2025