Appointment and promotion of judicial officers: a need for change

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Not much has been written on this thorny issue. I have mustered the courage to write this article which in no way targets anyone but reveals lacunae in a system perpetuated over decades, with the legal profession remaining as silent bystander. Many in the profession talk about the topic, but for the fear of getting into bad books of the system do not further the debate. Albie Sachs rightly stated in The Strange Alchemy of Life and Law, that “the legal profession is conservative in thinking but restless for change”.

I accept my share of responsibility in not addressing the issue head on as Attorney General but those associated with me at the time will confirm the tough resistance faced when proposing relevant changes. It was certainly a bitter pill for some to swallow. Nevertheless, when I left office in 2013, the Constitution (Amendment) Bill, with certain proposed changes, was ready to be introduced into the National Assembly.

The appointment and promotion of judicial and legal officers are done, in compliance with section 86 of the Constitution, by the Judicial and Legal Service Commission (JLSC) comprising of the Chief Justice as Chairperson, the Senior Puisne Judge, the Chairperson of the Public Service Commission (PSC) and one other member appointed by the President, acting in accordance with the advice of the Chief Justice and that appointed member should be a person who is or has been a judge.

Therefore, as matters stand, the composition of the JLSC is restricted to judges and to the Chairperson of the PSC. Seeing the composition too restrictive and conservative, the Mackay Report recommended at paragraph 5.10 that the composition of the JLSC be changed and be composed of the Chief Justice as Chairperson, the Senior Puisne Judge, the Solicitor General, a Barrister of at least fifteen years standing nominated by the Bar Council, and one other person from the private business sector appointed by the President.

In June 2018, the Law Reform Commission, stating it had evolved in its thinking and contrary to its August 2011 Opinion Paper, came up with the proposal that the JLSC should be composed exclusively of judges and retired judges. This is unfortunately not the trend in respected democracies like India and the United Kingdom.

In India, the National Judicial Appointments Commission is comprised of judges, the Union Minister of Law and Justice and two eminent persons nominated by a committee consisting of the Chief Justice, the Prime Minister and the Leader of the Opposition. The Judicial Appointments Commission of the United Kingdom is composed of 5 judicial members, 2 professional members, 5 lay members, 1 tribunal judge and 1 non-legally qualified judicial member. The trend is to make the appointment of judicial officers more inclusive and representative. Mauritius cannot lag behind.

Promotion

A promotion in the Attorney General’s Office or the Office of the Director of Public Prosecutions, termed as State Law Office (SLO) for the sake of convenience, cannot be equated with a promotion in the judiciary and vice versa. Those who choose to join the judiciary should have a career path in the judiciary and those who choose the SLO should have a career path in that Office.

When a post is advertised in the judiciary, the applicant does not apply to join the SLO and when someone applies to join the SLO, he or she does not apply to join the judiciary. It is paradoxical that a promotion forces one on an unchosen career path.

Status quo would be music to the ears of certain, but change is overdue and warranted. After pondering for a while over the matter, I am of the considered view that neither the recommendations of Mackay Report nor those of the Law Reform Commission should be retained.

The bolder and wiser decision would be to separate the JLSC into a Judicial Service Commission dealing exclusively with recruitments and promotion in the judiciary and a Legal Service Commission with those at the State Law Office. In so doing, we can draw inspiration from the Legal Service Commission of Singapore, set up under Article 111 of its Constitution.

Vacancies for the post of District Magistrate are normally advertised but it is regrettable to see that all such recruitments have recently been done solely from officers of the SLO. We often hear about vacancies in the posts of judges of the Supreme Court and subsequently a promotion occurs from the SLO or the judiciary and a judge is appointed, similarly for the post of magistrate of the Intermediate Court.

In truth and in fact, according to section 77(4) of the Constitution, a barrister of 5 years standing can apply for the post of judge. Similarly, pursuant to section 119 of the Courts Act, a barrister of 2 years standing is eligible to be appointed as magistrate. One is tempted to think as to why such vacancies are not advertised to allow those eligible to apply.

The relevant authorities can seek guidance from the 2008 Australian Attorney General’s Department paper on judicial appointments, wherein it has been stated that: (1) there should be greater transparency, so that the public can have confidence that the best possible judicial appointments are being made, (2) all appointments are based on merit and (3) everyone who has the qualities for appointment as a judge or magistrate is fairly and tproperly considered.

Our legal world should become a panacea for change. If we lose touch with the river of change and enter a back water, become self satisfied and ostrich like, we do so at our peril. Given that reform in the legal field is not a vote catcher, it is hoped that the above proposals do not remain a utopian dream. In the meantime, the JLSC can already effect certain changes.

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