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Judicial milestone: supreme court conducts online hearing

17 avril 2020, 08:28

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Judicial milestone: supreme court conducts online hearing

The Mauritian Supreme court decided this week to hear lawyers on an urgent motion before the court, by video conferencing. This is a major innovation which marks a significant turning point in the Court’s assertion of its role as the ultimate authority for enforcement of fundamental rights.

Top FM, a private radio station, had its licence suspended for two days by the Independent Broadcasting Authority, in the midst of the Covid crisis, for a breach of the Code of Ethics and of licensing conditions which allegedly took place some nine months earlier. Two weeks after the suspension, while the country is still under lockdown, Top FM was again taken to task by the regulator. It was asked to show cause why disciplinary proceedings should not once more be taken against it over the airing of an interview with a well-known trade unionist.

The radio station applied for leave to apply for judicial review of the decision of the IBA whilst concurrently seeking an injunction to prevent the IBA from pursuing its disciplinary proceedings. It argues that that whilst the country is at a standstill the IBA “has been and is still busy at work eagerly digging into its archives and nitpicking on imaginary breaches of the Code of Conduct”. 

The radio station further avers that IBA’s sole aim in doing so is to “accumulate breach after breach of imaginary breaches with a view to ultimately revoking the station’s licence altogether or ultimately refusing to renew it.” It asked the court for an order to stay the new proceedings initiated by the IBA until the determination of the judicial review application.

Following an online hearing held on Tuesday, the Supreme Court delivered a judgment on Thursday granting the prayer for a temporary stay of the proceedings initiated by the IBA. The Court will spell out the reasons for its decision in a subsequent judgment. Looking beyond the merits of the application, the case will be remembered as a milestone in the modernisation of the administration of justice in Mauritius. 

Given that the Supreme Court is currently closed and that a decision had to be taken on the stay order before April 15 set as the deadline by the IBA for Top FM to make representations, the Supreme Court decided with the agreement of all parties to hear the application online. All documents were filed online and lawyers for both parties made their submissions through video conferencing facilities organised at short notice by the Registrar of the court.

Under our Constitution, the general rule is that all court proceedings have to be held in public. In order to comply with this requirement, some members of the legal profession and of the media were invited to follow the hearing online. 

Our law already enables a court to allow a defendant or a detainee in custody to appear before it in relation to a bail application, by video link without the need to be physically present in court. The law also allows a complainant in a sexual offence case or a witness in a case under the Piracy and Maritime Violence Act to appear before it through live video or live television link system. These legislative measures were significant innovations in the administration of justice. However, the proceedings still take place with both the bench and lawyers being physically present in court.

The bold decision of Chief Justice Balancy and Justice Seetohul-Toolsee this week to hear arguments online with neither the judges themselves nor the lawyers being physically present in the Supreme court is a major development in the history of our local judiciary. 
That this major innovation could take place without the need for any legislative amendment or new rules of court is also very significant. It shows that there is scope for procedural innovation or more liberal interpretation of existing law and rules in the light of societal exigencies and advances in technology. In doing so, the Court rose up to the challenge of the times and upheld its crucial role in the safeguard of the democratic fabric of our country.

The Supreme Court has now clearly established that hearings can take place online, not only from a technological perspective but also within the framework of existing law. By laying down a precedent in view of exceptional constraints, the court has set out a new rule of practice. 

There is now a clear pathway for adopting a more flexible judicial approach to the enforcement of justiciable rights in our country until legislators decide to widen the scope and the procedural requirements for citizens to seek redress against public bodies or the State.