Ravi Rutnah: “The time is ripe for a debate on modernising the judiciary”

In Parliament this week, Barrister and MP, Mr Ravi Rutnah, asked the Prime Minister whether in view of modernising the judiciary, the mode of recruitment of Judges, Magistrates and Prosecutors will be reviewed. In so doing, has he infringed upon the sacrosanct principle of separation of powers? News on Sunday met with him regarding this issue.

By asking for the modernisation of the judiciary, aren’t you infringing on the doctrine of Separation of Powers?

No. I don’t think it was an infringement or attack or disrespect or otherwise interference in respect of a sacrosanct principle that keeps our system of governance of checks and balances and that upholds the highest standard of democratic principles. In The Spirit of the Laws (1748), the French political philosopher Montesquieu described the separation of powers among a legislature, an executive, and a judiciary. He was adamant about the fact that the independence of the judiciary has to be real and not apparent merely. ‘The judiciary was generally seen as the most important of powers, independent and unchecked’ and also was as such considered dangerous.  

In Mauritius, like in the United Kingdom, Parliament is sovereign. This means that Parliament can make and unmake any law. In A. V. Dicey’s view, parliamentary sovereignty entails three principal aspects:

• Parliament is the supreme law making body and may enact any laws on any subject matter.
• No parliament may be bound to a predecessor or bind a successor.
• No person or body including a court of law may question the validity of law.

Please try to understand that since 1968, the way our judiciary functions has remained unchanged and has seen no overall revamping despite Lord Mc Kay Report. I am not saying that the 1968 set up is wrong but what I want people to understand is that we need to develop and evolve as time goes by.

Why do you think we need to review the modus operandi of the judiciary?

Section 85 of the Constitution establishes the Judicial and Legal Services Commission (JLSC). The Chief Justice (CJ) is its Chairman. The Chief Justice also advises the President to fill vacant posts of the JLSC. Under section 86 of the Constitution, the JLSC, which the CJ heads has the power to appoint, exercises disciplinary control and to remove from office the Solicitor-General, Parliamentary Counsel, Judge in Bankruptcy and Master and Registrar, Assistant Solicitor-General, Principal State Counsel, Senior State Counsel, Magistrate (including the Presiding Magistrate or a Magistrate of the Intermediate Court or of the Industrial Court or a Senior District Magistrate), State Counsel, Principal State Attorney, Senior State Attorney, State Attorney, Assistant State Attorney and others.  

In virtue of section 77 of the Constitution, the Chief Justice advises the President on the appointment of the Senior Puisne Judge. The Puisne Judges are appointed by the President on the Advice of the JLSC which is chaired by the CJ. The Director of Public Prosecution is also appointed by the JLSC.  

The Chief Justice can also institute and hear disciplinary proceedings against members of the legal profession. And the irony is that there is no Authority to which the CJ is answerable to in case a complaint is raised against him by a citizen of this country. In many countries such as the USA, Canada and Australia, there is the equivalent of a Judicial Complaint Commission.

“ Most of the time, the evidence of the prosecution is treated as gospel truth while the version of event of the defence might be rejected on the ground that the accused did not complain at the right time or in the right manner. This might lead to serious miscarriages of justice."

So you also want to review the recruitment process now?

You will notice that almost 99% of Judges and Magistrates have hardly any experience at the Defence Bar. Since 1968, it has been a common practice to recruit Magistrates and Judges among Prosecutors. The danger with the present mode of recruitment is that people who have hardly been to a police station or police investigative departments to assist suspects, hear applications on evidence which might have been obtained by threat, violence, or under duress and all sorts of human rights abuses. Most of the time, the evidence of the prosecution is treated as gospel truth while the version of event of the defence might be rejected on the ground that the accused did not complain at the right time or in the right manner. This might lead to serious miscarriages of justice.  

I suggest that the whole area of appointment of Magistrates and Judges be reviewed by introducing amongst others strict criteria that prospective Magistrates and Judges should have at least five years experience at the Defence Bar with proven track record that they have assisted clients at investigative stages. And before the appointment is confirmed, they should all attend a Magistrates College (Ecole de la Magistrature). Consideration should also be given to recruit Judges from a pool of Senior Barristers or Senior Counsels who have a wealth of experience and who can very positively contribute towards the advancement and promotion of Justice in our country.

What are your views regarding the establishment of a Prosecution Commission?

I am glad that the government is currently looking into the setting up of a Prosecution Commission to review the decision to prosecute or not. I honestly believe that vesting so much power in the hands of one person is dangerous, as propounded by Montesquieu. I think it is the right time to start a debate on this subject with a view to modernise our judiciary. There is an urgent need for a Presidential Commission on this subject and the Prime Minister was right when in the last part of his answer stated that he wants to hold consultation to look into the issues I have raised in my parliamentary question. There is a need for Parliament to amend our Constitution since it has the power to make and unmake any law.

What is the point you want to strike with the introduction of the Police And Criminal Evidence Bill?

I want to see the end of provisional charges. I understand that the PACE Bill will be brought to the National Assembly sooner rather than later. PACE will revolutionise and modernise the way police investigates cases. Its implementation will bring more transparency, respect for human rights and respect for the rule of law.

Do you believe in the independence of our institutions or should there be from time to time intervention from the legislature?

The whole idea of a democratic country where there is separation of powers, rule of law and respect for Human Rights, is that institutions must be allowed to function without interference. However, I agree with the proposition that from time to time, Parliament has to legislate to modernise the institutions to render them more efficient and effective. For example, for the first time since 1968 and in the wake of the Judgement in the case of Lagesse v. Director of Public Prosecution and the case of Mohit v. State, government is reviewing the provision of section 72 of the Constitution by implementing the signal sent by the Judicial Committee of Privy Council wherein the wide powers of the DPP was the subject of detailed analysis.