In India, every Judge of the Supreme Court is ranked for seniority purposes on the basis of the date when he/she assumes duty as a Judge. This is significant since the appointment of the Chief Justice is made on seniority grounds. It makes no difference that the Judge who is to be appointed will only serve one day in the post of Chief Justice. This is not only on account of the prestige that accompanies the post of Chief Justice but mainly because the appointment of the Chief Justice is removed from the turbulence of politics.

This system guarantees predictability and fairness. The Indian system has worked and the certainty about it ensures that no attempt is ever imagined to bypass it.

The present Chief Justice of this country (…) will be coming to the end of his tenure. The next in line is the senior Puisne Judge who should normally be appointed – or anointed – Chief Justice.

But the rumour mill is working at great speed about what is likely to happen when the present Chief Justice retires by the end of the year. Rumours are unwelcome as they sit uncomfortably with the administration of justice.

The rumour is that someone from a European country would have been approached to assume the office of Chief Justice. Although such rumours should be discounted straightaway, still the fondness of the present Prime Minister to hanker after foreign experts, particularly those living in the country famous for its white Xmas, might lend some credence to what the “ chatterati classes” are up to. Should the foreigner be unavailable, then the preference would go to a local. All this rumouring has as its background a report on the Kaya episode which was authored by the Judge next in line to be the Chief Justice.

In order to quell any discussion about any Judge being bypassed, the Government wants to go ahead with the setting up of an Appeal Court which would absorb all the senior Judges. I have serious doubts – Lord Mackay notwithstanding and knowing that I may be taxed as a “ semi- intellectuel” which I claim to be anyway – about such an Appellate Court which can be accommodated within the existing structure of the Supreme court establishment.

There should be no room for any attack of a “ colourable mechanism” when such a Court is to be set up. Already we must be the country with the highest per capita in terms of judicial presence.

It is important for an institution like the higher Judiciary not to be subjected to rumours which destroy the normal functioning of the Courts and which are harmful to personal relations among the Judges. This is where the wisdom of the Indian system comes in. Whatever may be the provisions of the Constitution of Mauritius regarding the appointment of Chief Justices, it would be helpful if we could henceforth adopt what the Indians have. A system which is a- personal and predictable is in the interest of the institution and it is high time that such a system is adopted. This would also mean that there is equality of opportunity and also legitimate expectations would prevail.
 

Anil GAYAN