The exit of the present Chief Justice from his post has caused quite a stir in public opinion. Not on account of his leaving the judiciary but rather on account of  consequential changes. As usual, the inevitable culprits like favouritism, nepotism, communalism and any other “ism” that we are so fond of have come to the forefront. One judge who was hoping to be among the top hierarchy has even had to be admitted to the clinic. Even the leader of the Opposition has transgressed his constitutional role in calling for the promotion of one particular judge. This is good communal politics but it is a far cry from what the Constitution provides.

The Chief Justice is appointed by the president after consultation with the Prime Minister. Consultation may even take the form of an informal conversation and the President is not bound to follow the views of the Prime Minister.

The Senior Puisne judge i.e the next in line after the Chief justice is appointed by the President on the advice of the Chief Justice. What this means is that the President is bound to accept the advice of the Chief Justice. For all purposes the post of Senior Puisne Judge is a gift of the Chief Justice just like the post of Chief Justice can go to anyone , not necessarily from the existing Judiciary, who is a barrister of at least fi ve years’standing.

After the Chief justice and the Senior Puisne Judge all other judges are ranked. Although there is a practice that the ranking is organized by the date of assumption of the post of Judge, there is nothing in the Constitution that enshrines the seniority of judges. They are all on the same level and, when everything else is equal, one has to go to their date of call and the date of their having joined the service to determine their seniority.

It may be worthwhile to recall that the post of Senior Puisne Judge carries the same rank as that of the solicitor general. This happened when the then Solicitor General, late Mr E Venchard, wanted to preserve his seniority. The Government then agreed that, should he wish to join the Judiciary, he would rank just after the Chief Justice. This was an exception which was not generalized for puisne judges who all stand on the same step.

It so happens that Justice Peeroo joined the service in 1978. And I believe Justice Lam Shang Leen joined the public service at least three years before Justice Balancy. It would not be right and just to look at considerations other than objective ones to assess the recent appointments in the Judiciary. There can be no injustice when those who are senior are recognized as such. But this must be a principle that is strictly adhered to. Any suspicion that someone has been bypassed for non-objective reasons must be probed and steps taken to undo what was unfairly done. It does a lot of harm to the institution when insinuations of the lesser world are bandied about. Accidents of birth cannot always be transformed into a sense of permanent grievance and victimization. Sadly it is only in Mauritius that in politics the caste in which you happen to be born determines whether you are suited for the top positions.

By the way the Judiciary must ensure that some attorneys do not attribute to themselves the power of selecting the judge before whom they want their cases to be heard.

In case Justice Balancy is unhappy, there is always a remedy available at the Equal Opportunities Commission.