Paul Lismore

[Paul Lismore] What can the ordinary citizen expect from our judges when judgements defy logic ?

Rédigé par Paul Lismore le Dimanche 2 Mai 2021

" There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice."---Montesquieu

We had two Supreme Court judgements this week which both defy logic and judicial wisdom and fair play. They both show a terrible contempt for the applicants, with one case taking nearly two years for the eminent Supreme Court Judges to write a FIVE page judgement that misses the point completely.

It instead relies on what the "Honourable" Latin speaking fraternity would refer to as an obiter dictum from a 1995 case. For those who don't know, an obiter dictum is described as " a judge's incidental expression of opinion, not essential to the decision and not establishing precedent."

In other words, it cannot and should not be used as the basis for a future judgement, and yet this is precisely what Judges Benjamin Marie Joseph, Nicholas Oh San-Bellepeau et Johan Moutou-Leckning have done when rejecting Dev Hurnam's application for reinstatement on the Roll of Practitioners (Barristers) in Mauritius.

Anyone practising law would know that a dicta is not and cannot be the same as the ratio decidendi of a judgment.  In other words, Ratio decidendi provide the essential elements of a judgment which create a binding precedent, and must therefore be followed by inferior courts, unlike obiter dicta which do not possess binding authority. 

So, why have those 3 judges decided to base the entirety of their judgement on an obiter dicta, i.e. a previous judge's expression of an opinion which cannot be used as a legal precedent? Why have Benjamin, Nicholas, and Johan mugged Dev in broad daylight with such nonchalance?

The application of Dev Hurnam was for reinstatement, not admission at the bar! A new barrister must always apply to the Chief Judge,  but someone like Dev Hurnam who has been disbarred has to apply to the Supreme Court for reinstatement. It is a pity, and a shame really, that the 3 Judges DID NOT EVEN REFER TO SECTION 28 OF THE INTERPRETATION AND GENERAL CLAUSES ACT which clearly specifies that a power to revoke carries a power to reinstate.

Section 10 (3) of the Law Practitioners Act provides that The Supreme Court may, on its own motion or an application by the person concerned, and after making such enquiry as it thinks fit (i) amend an entry on the Roll; (ii) may cause the name of a person which has been removed from the Roll to be restored on the Roll.

So, why have the 3 Judges ignored completely the rationale behind Dev Hurnam's application, and instead asked him, rather unwisely, to apply to the Chief Judge, when clearly his application falls under the ambit of the Supreme Court? And even if they were right, which they aren't, it took them 2 years for the judges to tell him, "Eoula! Ou bizin apply a chef juge. Pa nou travay sa a la cour supreme!" Not very professional, is it?

Now, everyone knows that Dev Hurnam has a big mouth, but is that a decent enough reason to stop him from regaining his livelihood? How much longer will he need to be punished? Until he dies? All sorts of heavy duty criminals get remission on their sentences and many, with the unethical help of some barristers, manage to get most of their sentences reduced by the President.

How many of our Zavokas have clean hands anyway? Ask around, and you will find that most people consider most of them to be greedy, unethical, unprincipled, pretentious, arrogant pimples on the face of our island.

As for the judges, who in the legal profession does not know of the Judge who is a rampant and notorious bisexual, or the other one who is a corrupt and a compulsive gambler, or the one whose intellectual instincts leave a lot to be desired? These people have decided, with all the sadism of a rogue schoolboy joyfully pulling one by one the legs of an insect, to sit in judgement of someone, and destroy what is left of his life with a judgement that makes no judicial sense whatsoever...

What would you call a judge who regularly borrows money from barristers, and is a shame to the judiciary as he is often mentioned as a corrupt judge? Is that person fit to stand in judgement of others?
Dev Hurnam now has to apply to the Privy Council in order to get the decent judgement based on legal clarity and precedence that he should have obtained from the Mauritian judges. This will cost time and money, not something that the 3 judges will give a fig about. After all, if it has taken them 2 years to write a five page 'judgement' that makes no legal sense whatsoever, do you think they will lose any sleep over the plight of one of their victims? 

Either that, or Dev could bend over and be 'nice' to the bisexual judge, or give what's left of his money to the corrupt judge so that he can continue to gamble away...same as he has gambled with what's left of Dev's life and career.

I will write about the other crazy Supreme Court judgement in tomorrow's post. That one is a real nutcracker, assuming your nuts can withstand the pain...

Dimanche 2 Mai 2021

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