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Published: Fri, 02 Feb 2018
Judicial Ethics and Accountability: A review for Mauritius
Mauritius inherited a rudimentary judicial set up and organisation during the French occupation. It is only during the British rule that the judiciary become properly organised. Mauritius has followed quite closely the structure and organisation of court as it exists in UK. Therefore, we have the Judicial Committee of the Privy Council at the top and down the ladder, we have the District Court. Just below the Judicial Committee of the Privy Council, we have the Supreme Court, which combine the Supreme Court First Instance, the Court of Appeal, the Master and Registrar also the Court of Bankruptcy and the Admiralty Court. The hierarchy of Courts is well established in Mauritius and it seeks a lot of inspiration from the British hierarchy of Courts.
Separation of powers
The doctrine of separation of powers is well-known to jurist and political scientists such as Rayan Adamsm, Randall Stuart, and David Hume internationally as well as locally. African countries and their constitutional law have been greatly influenced by the Westminster system model and at one time the doctrine of Sovereignty of Parliament was a pillar of their constitutional theory. At the same time, Mauritius is unanimously recognised as a successful democracy in relative terms within the bounds of Africa, whilst South Africa has made a radical departure from its apartheid system to anchor itself as the greatest democracy state in Africa. The doctrine of separation of powers itself was first expounded by, (John Lock) and the elaboration of the doctrine was done by (Montesquieu). The ideas of both were to limit the limit the powers of the State.
While John Locke advocate the division of government function into Legislative, Executives, and Foreign Relations. Montesquieu classified them as Legislative, Executive, and Judicial. The whole idea of dividing government’s power was a response against the absolute power of the European monarchs of the time and it laid the premise for liberal democracy. It was the founding father of the American constitution that started to put in practice, in a systematic way, the doctrine of separation of powers. It can be seen that in Mauritius the parliament and the president of Mauritius adopted the theory of Montesquieu such that each arms of the republic of Mauritius do have a separate entity.
The three arms of government
The pure doctrine of Separation of Powers states that the same people should not be member of both the Legislative branch and the Executive branch. Such vital principle is consecrated by the American constitution, but not by the Mauritian ones. The South African constitution court in the Western Cape stated “in Commonwealth Countries, the Judiciary is normally independent, but there is not always a clear separation between the executive and the legislative” (Commonwealth report).
Under the doctrine of Separation of Powers these organs of the state should be separated and their personnel should de distinct. In Mauritius the personnel of the Judiciary is independent and the recruitment is done by the Judicial and Legal Service Commission.
Aristotle conceives of ethical theory as a field distinct from the theoretical sciences. Its methodology must match its subject matter—good action—and must respect the fact that in this field many generalizations hold only for the most part. We study ethics in order to improve our lives, and therefore its principal concern is the nature of human well-being. Aristotle follows Socrates and Plato in taking the virtues to be central to a well-lived life. Like Plato, he regards the ethical virtues (justice, courage, temperance and so on) as complex rational, emotional and social skills. But he rejects Plato’s idea that training in the sciences and metaphysics is a necessary prerequisite for a full understanding of our good. What we need, in order to live well, is a proper appreciation of the way in which such goods as friendship, pleasure, virtue, honour and wealth fit together as a whole. In order to apply that general understanding to particular cases, we must acquire, through proper upbringing and habits, the ability to see, on each occasion, which course of action is best supported by reasons. Therefore practical wisdom, as he conceives it, cannot be acquired solely by learning general rules. We must also acquire, through practice, those deliberative, emotional, and social skills that enable us to put our general understanding of well-being into practice in ways that are suitable to each occasion. ( Aristotle )
Training of Judicial Officers on Ethics
The majority of the participants agreed that the on-going training of judicial officers is important to keep up with the recent developments in law, judicial skills and the social context including ethic and gender issues.
It was recommended that the training should be funded by the Judiciary itself and not the Executive. In the case of funding by the Executive there might be the risk that the Executive will decide that the judicial officers do not need any training.
Another recommendation was that the training programmes should be devised by the Judiciary itself and not by the Executive because there should be no ‘brainwashing’ and ‘buffer on judicial thinking’.so a good and clear communication should be given to be able to have a principle and can be called code of ethics. In this context we can call it law code of conduct.
Judicial Ethics Discretion
One of the main situations dealing with judicial ethics is as such: Some participants raised the issue of criticism coming from the side of the Executive in relation to fines and sentences imposed particularly in drug cases. It was also stated that there have been problems in relation to the exercise of discretion whether to grant bail or not and in the judicial review of administrative action.
It was traditionally thought the judges should apply the law as it is as opposed to judicial activism.
We can observe there has been a constitutional crisis in a country- a clear cut case of collision between the arms of the State. The Government refused to execute the judgments of the Court when orders were made against the Government. Judges were frustrated and refused to sit on the Bench unless the Government executed their judgments. They took a long ‘judicial winter’. There is no Court of Appeal since two years for that reason.
It was recommended that judicial ethics should guide officers towards the exercise of judicial discretion. There should be principles of social responsibility and accountability so that courts have a free hand in the administration of justice and that they do not feel that they have to adjudicate to please the Government or review administrative action in their favor.
It was remarked that there is an insufficient understanding of the rules of the game in the sense that the Executive do not appreciate the scope of judicial discretion. There is a danger that they may jump to hasty conclusions.
Another interesting proposition was that in cases where there is no adequate remedy, the law should be amended to add more provisions in the legislation so that judges are better equipped to adjudicate. With particular reference to the real problem a country is faced with, if the Executive refuses to respect and give effect to an order of the court, a practical solution would be for the Judiciary to put international pressure on the Government. When power is thus unfairly taken from the Judiciary, the latter can appeal to international associations. One should ‘think big’ because there should be respect for the finality of court decisions. Beyond that there would be constitutional chaos. Another practical measure proposed was that there should be more civic education. Something concrete is to be done to clear misunderstandings about the Judiciary. There should be a Public Relations Bureau to provide for executive summaries of judgments and to clear certain wrong perceptions about legal procedures and in the overall functioning of the Judiciary.
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