Paul Lismore

[Paul Lismore] The system of appointing senior counsels in Mauritius is a prime example of "nou bann" again having the upper hand over meritocracy

Rédigé par Paul Lismore le Mardi 28 Avril 2020

We love saying that our legal system follows the rules, laws, and procedures of the UK fact, many of our laws, drafted by the geniuses in the Attorney General's office, are often mediocre copy/paste of laws that have already been enacted in the UK. 

There is however one important area where the Mauritian judiciary differs enormously from the way Queen's Counsels (or their equivalent in Mauritius, Senior Counsels) are appointed. In the UK, Q.C's are appointed by the Queen, on the advice of the Lord Chancellor who is in turn advised by an INDEPENDENT SELECTION PANEL which receives and considers EACH APPLICATION and makes recommendations regarding appointments.

There are a few Honorary Q.Cs who are appointed on the sole recommendation of the Lord Chancellor, Q.Cs Honoris Causa, as they are called. For example, last year 108 barristers and solicitors were appointed Q.Cs following the recommendations of the Independent Selection Panel and only 6 Honorary Q.Cs. Honorary QCs were awarded to lawyers and legal academics who have made a major contribution to the law of England and Wales outside practice in the courts.

REMEMBER, the Lord Chancellor, who is a member of the Government, does not have any veto or influence over the system and MUST act on the advice of the panel.  

At the 2019 appointment ceremony where the title of Q.C. was formally bestowed on the successful APPLICANTS, the Lord Chancellor David Gauke said: " The award of the title of Queen’s Counsel is a recognition of depth of expertise and eminence in their fields. It is this expertise that gives the English legal system its world-leading reputation."

This system of appointing Q.Cs on the recommendations of an INDEPENDENT SELECTION PANEL has meant that " The days when the selection of QCs involved secret soundings and a tap on the shoulder are gone. Applicants are considered under a competency framework comprising five key areas: understanding and using the law; written and oral advocacy; working with others; diversity; and integrity." ( Ref The UK Law Society). This has led to a significant increase in female Q.Cs , black and ethnic minority Q.Cs., and solicitor advocates Q.Cs.

Who are the members of the Independent Selection Panel?

It has at least 9 members and must contain at least one senior barrister, senior solicitor, retired senior judge and LAY MEMBERS WITHOUT LEGAL QUALIFICATIONS. Better still, the chair of the panel is ALWAYS A LAY MEMBER. Applicants are expected to submit evidence of exceptional capability as advocates in the Higher Courts.

They are required to name references (judges, colleagues and clients) who will attest to their competencies and attend an interview with two panel members. Applicants are judged based on the evidence submitted including their references, interview performance, ability and results attained in complex and important cases and key competencies.

Can you ever imagine this happening in Mauritius, where the gargantuan egos of our Learned Friends will bristle with anger at the thought of a panel for the appointment of Q.Cs being chaired by a lay member with no legal qualifications?  

How do we appoint Senior Counsels in Mauritius, our wonderful etat de droit? NO INDEPENDENT SELECTION PANEL, no applications by lawyers satisfying the eligibility criteria, NOTHING!

The Chief Judge simply picks and chooses who he wants to see as S.Cs, based on soundings with other judges and friendly lawyers, and sends his list to the President of the Republic, who invariably will rubber stamp it. As you can see, objectivity and independence are alien to this system and would perhaps explain why we have geniuses like AG, RR, P de S, RD and quite a few others as S.Cs...

In Mauritius, lawyers are entirely at the mercy of the Chief Justice who very often appoints SCs on obscure grounds such as club affiliation ( membership of Freemasonry, for instance), political affiliation, caste, community, religion. etc .This has been the case since independence. 

Relying on the reference of the senior members of the bar flaws the whole process. The legal profession is far from being a brotherhood. If you are not in the good books of a senior member or perceived to be independent minded, you are likely be discarded from the race, or if you are deemed as a rival , you will be ignored right at the outset.  

A few names are now being mentioned as likely S.C. appointees, and as our Learned friends are ultra sensitive and will run to the courts for 'redress', let me use their initials instead:  SH, JCB, RS, JP, AD de M, and even one real dick!

One of them had spat and assaulted a magistrate in open court and was disciplined by the Supreme court; another one was kept "in detention" in a court room by a Chief Judge for him to prepare his skeleton arguments, and all under the supervision of a court usher! But who cares, eh? 

Many of us had high hopes that when Eddy Balancy was appointed Chief Judge, he would modernise the system and drag our legal system screaming into the 21st century. Unfortunately that has not happened. 

His list of SCs will show whether he ranks probity, integrity, and diligence above the dubious ability to organise parties where alcohol and the juices of easy women flow easily.

Mardi 28 Avril 2020

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