LECTURES GIVEN AT THE UNIVERSITY OF MAURITIUS To Court Officers of the Mauritian Ju iciar! "!

#r S$"$ #o%ah& CJEI Traine Ju icia' Trainer& Ju (e of the Su)re%e Court of Mauritius *RINCI*LES OF JU#ICIAL A#MINISTRATION
The main objective of the Course is to (a) make a SWOT analysis of our judicial administration; and (b) actively assist in bringing about a short term and a long term solutions; (c) !ith the aim of effecting the necessary reform in the administration of the courts; (d) by introducing the ne! conce"ts# skills and methods a""ro"riate to a modern judicial system$ %uotable %uote& Few of us base our criticism of the courts on knowledge gained through direct personal experience, yet few of us are without an opinion as to what is wrong with our courts and what should be done to improve them. 'enedict S$ (l"en ) *a!rence T$ +ichols# 'eyond the Court ,oom# Canada#-S( *e.ington 'ooks# /012$ LECTURE + , (-3-ST 24 /$ 35+5,(* 6,7+C76*5S This introductory set of lectures are designed (a) to situate judicial or court administration in its constitutional conte.t; (b) to sound the rationale behind the Se"aration of 6o!ers; (c) to identify the differences bet!een 5.ecutive (dministration and 8udicial (dministration; (d) to enable course students to come u" !ith an acce"table definition of judicial administration$ 6,7+C76*5S (66*7C('*5 TO 6-'*7C (99(7,S Course Students are also e."ected to kno! and a""ly the "rinci"les of good governance# of trans"arency and accountability in the conduct of "ublic affairs$ :$ 6,7+C76*5S (66*7C('*5 TO ;5(*7+3 W7T< C7T7=5+S Course Students are e."ected to kno! and a""ly the "rinci"les of fairness in dealing !ith the "ublic# !ithout discrimination$ >$ Course students are e."ected to discuss the idea of a Courts? Charter for the @auritian Courts$

2$

At the en of the 'ectures& stu ents shou' -e a-'e . (a) (b) (c) to draft a reasonably acce"table definition of 8udicial (dministration; to identify the role of the Court system and their o!n role in it; to define the roles of the : (rms of 3overnment;

(d) (e) (f) (g)

to come u" !ith a modern statement of the function of the Courts in a liberal democracy and a !orkable statement for the aim of the justice system; to demonstrate ho! 5.ecutive (dministration differs from 8udicial (dministration; to a""ly the "rinci"les of fairness# accountability and trans"arency in the conduct of "ublic affairs; and to "roduce a first draft of the Courts Charter$

LECTURE /, S56T5@'5, / 4$ T<5 *(W?S ;5*(A

Section /B (2) of the Constitution of @auritius enshrines the "rinci"le of Cfair hearing by an inde"endent and im"artial tribunal !ithin a reasonable time$D 7t is eloEuent that in his famous soliloEuy <amlet s"oke of the la!?s delay as one of the major slings and arro!s of time$ This F5G5; %-5ST7O+ O9 ;5*(A 7+ T<5 CO-,TS !ill be analyHed in these sets of lectures$ (bove all# they !ill com"are ho! other jurisdictions have dealt !ith the matter and !hat role and res"onsibility the 8udicial (dministrations have in ensuring that the constitutional guarantee of the citiHens are ensured !ith res"ect to a Cfair hearing by an im"artial tribunal !ithin a reasonable time$D Course students are sensitiHed on ho! justice delayed is justice denied# come u" !ith innovative ideas about dealing !ith run of the mill cases as !ell as com"le. cases$ ( so"histicated understanding of the "roblem is reEuired to resolve the "roblem of delay$ Delay: the oncept and the !roblem. Delay is a blanket term covering a host of different problems caused by various factors, all re"uiring different responses. Delay is not one problem, it is a variety of problems. #alcolm #. Feely, ourt $eform on %rial, &hy 'imple 'olutions Fail, (asic (ooks )nc. *ew +ork, ,-./, p. ,.0. The several meanings of delay (a) the ela"sed time bet!een arrest and lodging of case; (b) the dead time !hen !aiting for the trial to start but does not start for technical reasons; (c) the numerous court continuances; (d) +eedless court a""earances or missed a""earances; (e) 9rustration over a variety of a""arent inefficiencies of the system$ The (merican 8udicature Society comments& %wo years of research has convinced us that simply viewing delay as one problem is not very helpful 1. &e prefer to view delay as a symptom of other problems that exist within a court system. (s regards res"onsibility for the state of affairs# it concludes 2ur research indicates that all actors may be responsible for unnecessary case processing time. SO@5 SO*-T7O+S& (() 8-;35S TO 65,C57F5 T<57, ,O*5S (S *5(;5,S 7+ @(,S<(**7+3 599O,TS 9O, ,5;-C7+3 ;5*(A T(I7+3 6,O95SS7O+(*S O+ 'O(,;; (') CO-,TS TO '5 S5,7O-S W7T< 97GT-,5S (+; +OT TO (**OW 5(SA ;7S6*(C5@5+TS;

(C) (;) (5) (9) (3) (<)

,737; 6O*7CA TO ;5(* W7T< CO+T7+-+(C5S; *7@7T7+3 7SS-5S W7T< T<5 (SS7ST(+C5 O9 CO-+S5*; CO+T,O**7+3 C(*5+;(,S; (66O7+T@5+T O9 9-** T7@5 (;@7+7ST,(TO,S; -S5 O9 CO@6-T5,7=5; 7+9O,@(T7O+ SAST5@S; (;O6T7O+ O9 @O;5,+ O997C5 @(+(35@5+T T5C<+7%-5S (+; SAST5@S$

J$

C(S59*OW @(+(35@5+T

Course Students are e."ected to learn the skills of Case flo! @anagement and a""ly the techniEues# methods and "rinci"les a""licable in dealing !ith the flo! and "rom"t dis"osal of cases$ At the en of the 'ectures& course stu ents shou' -e a-'e to . (a) identify the various "layers !ho cause delay in the court set u"; (b) take a""ro"riate measures to deal !ith such factors for !hich they may be res"onsible; (c) suggest to the other "layers as to their role in reducing delays in the court system; (d) assist them in "roviding the citiHens !ith their constitutional guarantee; (e) set u" a case flo! management system a""ro"riate to their court in the short time; (f) "ro"ose a case flo! management system that is more "ermanent and more effective; (g) contribute to the setting u" of a system of informal time limits for cases before the ;istrict Courts# the 7ntermediate Courts and the Su"reme Court$

LECTURE 0, OCTO'5, J K$ 6,7+C76*5S 7+FO*F5; 7+ T<5 6,OC5SS7+3 O9 CO-,T C(S5S

CThe courts? isolation from informed "ublic scrutiny and the almost com"lete lack of restraints on "o!ers of sentencing judges freEuently result in !ide dis"arity in sentences# as !ell as judicial "rocedures that can be at times inconsistent !hen they are not ineEuitable# !ith adverse effects on certain classes of defendants$D 'enedict S$ (l"en ) *a!rence T$ +ichols# 'eyond the Court ,oom# "$ 24 Canada#-S( *e.ington 'ooks# /012 6resum"tion of 7nnocence and dignity of "ersons C7t has been our habit to acclaim our noble "retensions at the same time that !e lament the failures in "ractice$ The "retensions sound increasingly em"ty and unconvincing and our e."ectations fall far beneath them$D ' enedict S$ (l"en ) *a!rence T$ +ichols# 'eyond the Court ,oom# "$ 2J Canada#-S(# *e.ington 'ooks# /012

Conce"t of Court Service to the Community ( fair and im"artial system of justice is a constitutional "rovision guaranteed to the citiHen$ <is constitution also guarantees him eEuality of treatment# res"ect for his dignity and liberty$ The courts are not meant for the 'ench and the 'ar but for the citiHen$ Court ;ecorum While it is recogniHed that the Courts are meant to "rovide court service to the community# they reEuire certain basic "rotections themselves$ These are res"ect and dignity$ 8ustice to the "eo"le cannot be given e.ce"t in the serenity of the la!$ Court decorum has to be "reserved and any com"romise on these may become counter "roductive$ Court decorum is "reserved (a) "hysically by a""ro"riate visible architecture# designs# ensigns; (b) conduct and behaviour of the "ersonnel; (c) ability of the staff to conduct its affairs in such a manner as to enhance its image; (d) manner of dress and language$ Court Craft is the manner in !hich court "ersonnel deal !ith an e."ected or une."ected situation in a court so that the dignity of the court is "reserved and the situation is returned to normality$ Court monitoring by 8udicial Officers# by Court @anagers and by +3Os$ +3O Court monitoring "rogrammes have been designed to res"ond to citiHens? concerns$ 9or e.am"le# 6rojects focusing on rights of citiHens harshness in sentencing some "articular grou"s behaviour of court "ersonnel including judicial officers court !atching "rograms !hereby lay citiHens scrutiniHe the activities of and around the courts$ CThe actual !ork of court !atching# and much of the direction of its "rogress# is usually done by lay citiHens$ L$$ *egal "rofessionals L may hesitate to antagoniHe judges and other court "ersonnel !ith !hom

they must continue to have a !orking relationshi"$ Such attitudes may a""ear to be e."edient and self serving# L$ 9or la!yers kno! that it is the clients !ho suffer !hen judges are offended by the attitudes or actions of attorneys$ Counsel are retained to re"resent the best interests of their clients and may feel# understandably# that it is !iser for them to ignore issues of reform of the system in !hich they "ractice$D 'enedict S$ (l"en ) *a!rence T$ +ichols# 'eyond the Court ,oom# "$ 2K Canada#-S(# *e.ington 'ooks# /012 The !ho# !hat# ho! and !hen of court !atching$ 7t may best and most "rofessionally effected (a) by lay "ersonnel# involving the judges# the "ublic and the "rofessionals$ ;o you agreeM WhyM (b) (fter learning the basic rules of "rocedure in the court systemM WhyM (c) 'y interacting !ith all "layers in the system& "olice# "risons# bail bondsmen# defenders# "rosecutors# journalists etc$ (d) ;istribution of "rinted materials to "artici"ants (e) Conducting surveys; (f) Obtaining statistics; (g) 5tc$ At the en of this set of 'ectures& course students should be able (a) (b) (c) (d) to sit in the shoes of an outsider; analyHe ho! far reality betrays rhetoric in the actual court system; make "ro"osals for better court service to the community and scrubbing the system; develo" "rogrammes for the attainment of the objectives$

LECTURE 1, OCTO'5, /: 1$ (;@7+7ST,(T7F5 6,7+C76*5S (+; 6,(CT7C5 7+ CO-,T (;@7+7ST,(T7O+

This set of lectures are designed to sho! !hy sim"le solutions fail in the court system$ 5ach "layer has his o!n interest to !atch$ There is no single individual !ith a leadershi" role to gear the system to "roduce cor"orate results$ The 8udge does no more than referee# the la!yer does no more than !atch the interest of his client# the "rosecutor does no more than "resent the facts# the clerk does no more than "rocess the "a"ers$ There is no one !ith the cor"orate objective of setting targets for delivery and ensuring that all "layers are focused on the delivery$ The constitutional "rovision that there should be (a) a fair hearing by an inde"endent and im"artial tribunal !ithin a reasonable time; (b) no discrimination; (c) eEuality before the la!; (d) justice according to la! (e) etc$ !hile being ins"irational rhetoric is barely translated in the system$ Who should leadM The 8udge# the Court @anagerM On account of the "eo"le involved# the need for grass roots cam"aigns should be one of the methods of ensuring that the court system becomes an institution to hand out humane justice$ Those most resistant to change are the "rofessionals themselves$ (s one researcher "ut it& )n most instances, not only is there no general desire to change but there is a systemic tendency to retain the status "uo 1 3 $aymond %. *immer "uoted by #alcolm #. Feely, ibid.

7t is im"ortant to involve the "rofessionals in the dynamics of change$ Take on board (a) (b) (c) (d) (e) the 8udges individually or through the <ead of the 8udiciary; the 6rofessions individually and through the 'ar# the *a! Society; the 6ara legals individually and through their -nions or (ssociations; the Court -sers through (d <oc or established +3Os; the !ritten and the s"oken 6ress$

At the en of this set of 'ectures& course students should be able (e) to identify !here the daily "ractice of the courts contradict the "rovisions of the constitutional guarantees of the citiHens; (f) to set out a number of actions they may take to render rhetoric into reality (g) to develo" a""ro"riate "rojects !ith the "rofessional organiHations for the im"rovement of the court service to the community; (h) to suitable grass roots cam"aigns for the "ur"ose in a "ro active manner$ (i) make "ro"osals for better court service to the community and scrubbing the system; This is an inter active sessions !here the various "artici"ants state ho! they go about their daily# !eekly or monthly routines in the s"ecific areas set out belo!$ ;iscussions !ill take "lace as to the relative merits and demerits of the various techniEues and methods$ 0$ ;5(*7+3 W7T< +O,@(* WO,I*O(;S 9O,@(*S C,7@7+(* (+; C7F7* CO+T,(F5+T7O+S ;O@5ST7C F7O*5+C5 S@(** C*(7@S At the en of the session& course "artici"ants !ill be able (a) to share the e."erience !ith others on common denominators; (b) to identify the differences and evaluate the merits and demerits as a""licable to their courts; (c) to develo" a realistic "roject in a short term and long term court office moderniHation "rogramme for their individual courts$ LECTURE 2, OCTO'5, 2B This set of lectures are designed to define the legal frame !ork !ithin !hich the courts !ork and identify the areas !hich hinder moderniHation$ /B$ *53(* 9,(@5WO,I 9O, CO-,T (;@7+7ST,(T7O+ T<5 CO+ST7T-T7O+ T<5 ,5*5F(+T S5CT7O+S O9 T<5 CO-,TS (CT T<5 ,5*5F(+T S5CT7O+S O9 T<5 C,7@7+(* (+; C7F7* CO;5S T<5 ,-*5S O9 CO-,T OT<5, ST(T-T5S

//$

C<(@'5, C(S5S

LECTURE 3, OCTO'5, 2K /2$ ,5SO*F7+3 O997C5 'OTT*5+5CIS 7+ CO-,T (;@7+7ST,(T7O+ T<,7F7+3 O+ C<(OS CO@@O+ S5+S5 (66,O(C< TO CO-,T (;@7+7SA,(T,7O+ SC<5;-*5 O9 WO,IS T7@5*7+5SS (+; 6-+CT-(*7TA LECTURE 4, +OF5@'5, : /:$ ;5(*7+3 W7T< W7T+5SS5S 6rotection S"ecial (ttention as regards children# !omen etc T<5 9-+;(@5+T(* 9,55;O@S 5S65C7(**A ,73<T TO 9,55;O@ 'ail

/>$

At the en of these 'ectures& the course )artici)ants shou' -e a-'e . (a) (b) (c) LECTURE 5, +OF5@'5, /B This set of lectures are designed to locate those areas !hich need to be s"ecially addressed so that the image of inde"endent and im"artial justice may be enhanced$ 7t !ill deal !ith /4$ T<5 (66*7C(T7O+ O9 T<5 6,7+C76*5 7+ CO-,T (;@7+S7T,(T7O+ T<(T C8-ST7C5 S<O-*; +OT O+*A '5 ;O+5 '-T '5 S55+ TO '5 ;O+5$D T<5 6,7+C76*5 7+ ,5*(T7O+ (() TO CO-,T C(S5S (') 5GT,( 8-;7C7(* @(TT5,S (C) (SS7ST7+3 7+ T<5 6,5S5,F(T7O+ O9 *(W (+; O,;5, (;) T<5 (66*7C(T7O+ O9 T<5 ,-*5 O9 *(W (+; <-@(+ ,73<TS (5) T<5 O65+ (+; 6-'*7C <5(,7+3 (9) ;5(*7+3 W7T< T<5 @5;7( (t the end of this session# course "artici"ants should be able (a) set out guidelines for themselves and the staff for their day to day activities and conduct; (b) develo" methods and systems in the court system !hereby the "rinci"le may be observed; (c) identify niches !here integrity system !ithin the judiciary is com"romised and (d) "rovide for the enhancement of the court image generally$ (e) to identify areas !here la! reform is reEuired for "ro"osals to the *a! ,eform Commission; to suggest the te.t and the manner in !hich the reforms should be carried out; and make any recommendation cognate or incidental to the above$

LECTURE 6, +OF5@'5, /K This set of lectures deal !ith the "eriodical measures that may be taken to im"rove the institution as a !hole$ They !ill deal !ith /J$ 6*(++7+3 *O+3 T5,@ (+; S<O,T T5,@ 6,O85CTS '-;35T7+3 35TT7+3 T<5 (-T<O,7T75S TO <5(, These are interactive sessions intended to identify the "roblems that occur in designing a "roject for general infrastructural u" grade$ At the en of these sessions& the course )artici)ants 7i'' -e a-'e to )resent %o e' for . (a) (b) (c) (d) (e) short term and long term "lans for their courts; short term and long term court "rojects; budgeting for the reEuirements; "resentation to the "o!ers that be; carrying them through to com"letion$

LECTURE +8, +OF5@'5, 2> This set of lectures deal !ith the "eriodical measures that may be taken to im"rove the office and general look of the court as such$ They !ill deal !ith /K$ OT<5, 65,7O;7C(* CO-,T ;-T75S ;5ST,-CT7O+ O9 O*; 97*5S ;5(*7+3 (+; ,5T-,+ O9 5G<7'7TS CO-,T A(,; CO-,T 5%-76@5+T (+; 7+9,(ST,-CT-,(* 9(C7*7T75S /1$ CO-,T S5C-,7TA

Once again# these are interactive sessions intended to identify the la!s and the authorities that "rovide for them$ At the en of these sessions& the course )artici)ants 7i'' -e a-'e to )resent %o e' for . (f) short term and long term "lans for handling those "eriodical duties; (g) short term and long term court "rojects for the destruction# "reservation and retrieval of files; (h) budgeting for the reEuirements; (i) "resentation of the "rojects to the "o!ers that be; and (j) carrying them through to com"letion$ LECTURE ++, ;5C5@'5, / This is a one off lecture on the "ro"osed Code of Conduct for Court Officers$ /0$ CO;5 O9 CO+;-CT 7ntroduction

6erformance of ;uties Confidentiality 7ntegrity 6ro"riety Conflict of 7nterest At the en of the session& court )artici)ants shou' -e a-'e (a) to identify situations in each and every section dealing !ith the above !here "roblem areas !ill occur and ho! to resolve them; (b) to "ro"ose solutions as and !hen they occur$ LECTURE +/, ;5C5@'5, 1 These are confidence building lectures !ith the "artici"ation of the class to register their com"laints and see ho! to deal !ith them in a modern system of court administration$ They deal !ith 2B$ CO+;7T7O+S O9 WO,I (+; S5,F7C5 (+ 5+F7,O+@5+T W<7C< 7S CO+;-C7F5 TO ( @O;5,+ CO-,T O,3(+7=(T7O+ (+; 7@6,OF5@5+T O9 S5,F7C5 @(I7+3 ( ,56O,T TO T<5 6(A ,5S5(,C< '-,5(At the en of the session& course "artici"ants should be able (a) to realiHe the constraints of the 6ay ,esearch 'ureau; and (b) to make realistic "ro"osals for the consideration of the 6ay ,esearch 'ureau; and (c) to "ersuade them for im"lementation$ LECTURE +0, ;5C5@'5, /4 These lectures are designed to identify the office factors that dynamiHe change& state of the art tools and eEui"ment# generated court automation# motivated staff# staff o!nershi" of reform "rojects$ They discuss 2/$ 22$ 2:$ 2:$ 2>$ ST(T5 O9 T<5 (,T TOO*S (+; 5%-76@5+T ST(T5 O9 T<5 (,T T5C<+O*O3A# ;737T(* ,5CO,;7+3 (+; 5*5CT,O+7C CO-,T CO@6-T5, (7;5; 6,OC5SS7+3 O9 OF5,(** CO-,T (CT7F7T75S& 7;5+T79A ;(T( 5*5@5+TS 9O, ( 6-,6OS59-* (;@7+S7T,(T7O+ 7++OF(T7F5 7;5(S 7+ T<5 (;@7+7ST,(T7O+ O9 T<5 CO-,TS ST(99 7+FO*F5@5+T 7+ 6,O85CT 7+7T7(T7O+# OW+5,S<76 (+; *53(CA At the en of the session& course )artici)ants shou' -e a-'e . (a) to list a set of modern tools and eEui"ments reEuired to enable the courts to fulfill their set objectives; (b) to dra! u" a list of motivations and incentives that !ould bring about the dynamics of change;

(c) to select the range of data needed !ith res"ect to each administrative function and ho! these !ould serve the reform "rocess; (d) to set out the ty"e and nature of staff involvement for the "ur"oses of staff o!nershi" of reforms; (e) to !rite an innovative "roject for the court system or any section of the system in @auritius LECTURES +0 9 +2, REVISION FOR E:AMINATIONS /4 CO+T(CT S5SS7O+S G : <O-,S N >4 CO+T(CT <O-,S

UNIVERSITY OF MAURITIUS *RINCI*LES OF JU#ICIAL A#MINISTRATION IN ITS CONSTITUTIONAL CONTE:T Few of us base our criticism of the courts on knowledge gained through direct personal experience, yet few of us are without an opinion as to what is wrong with our courts and what should be done to improve them. 'enedict S$ (l"en ) *a!rence T$ +ichols# 'eyond the Court ,oom# Canada#-S(# *e.ington 'ooks# /012$

2$/$

T<5 S56(,(T7O+ O9 6OW5,S

The doctrine of Se"aration of 6o!ers !as formulated in the mid eighteenth century by the 9rench jurist @ontesEuieu !ho "osited that for a state to function "ro"erly# "o!er !ithin it should be so distributed as to contain inherent checks and balances$ <e identified three distinct "o!ers of government& the *egislature# the 8udicature and the 5.ecutive$ The legislative arm of a State should do no more and no less than formulate la!s for the State to function "ro"erly$ 7t should be unconcerned !ith matters of authoritative inter"retations and a""lication$ The 8udicature should be the inter"retative arm of a State# and as such should be the authoritative source of inter"retation of the la!; it should be unconcerned !ith the enactment of legislations$ <ence# if a dis"ute arose bet!een an individual and another individual or bet!een an individual and the State# the matter should be resolved by the 8udiciary$ 9inally# the e.ecutive should be the arm of the State em"o!ered to devise !ays and means of carrying out the "olicy of government and it should run government affairs as "er the la! and the inter"retation given to it by the Courts$ The argument is that the interests of the citiHen in a democracy !ould be best safeguarded if these three "o!ers !ere in the hands of different offices or organs$ Since O"o!er corru"ts and absolute "o!er corru"ts absolutely? no one office or organ of the State should be vested !ith more than one of the three "o!ers of government$ 7n most of the Common!ealth Constitutions and the Constitutions of Western liberal democracies# this doctrine forms the basis of the "olitical organiHation$ Whether it is strictly adhered to is a matter of controversy and a matter of degree from State to State$ Thus# in the constitution of the -nited States of (merica# the doctrine seems to be more real than in 5ngland !here there is a "erce"tion that there has never been a Osharing out? of "o!er in the strictest sense of the doctrine$ @any e.am"les are taken to sho! ho! the "o!ers overla"$ 9or e.am"le as 'agehot observed& %he efficient secret of the working of the (ritish constitution is the nearly complete fusion of the legislative and executive powers. 6rofessor 3arner concludes& %o attempt to separate the powers of government is today futile and almost certainly undesirable4 it should be recogni5ed that in some measure the administration of the modern state must exercise all three traditional powers, and that there is a speciali5ation rather than a separation of powers. D The fact of the matter is that the doctrine is much more an ideal to !ork for# a culture to inculcate in the day to day functioning of the State$ 7n many States# !here the Constitution enshrines the Se"aration of 6o!ers# the reality at the grass roots gives a very torrid "icture$ On the other hand# in the absence of even a !ritten Constitution advocating the Se"aration of

6o!ers# the culture is so !ell ingrained in the body "olitic that the State institutions function !ith a dedication to the doctrine of the Se"aration of 6o!ers as though it !as cast in stone$ One vital sine "ua non of the Se"aration of 6o!ers# as im"ortant as 6arliamentary sovereignty is the inde"endence of the 8udiciary$ This is one most im"ortant as"ect of a democratic society& judges !ho are called u"on to decide u"on the legality of acts of government and their agents should# of necessity# be !holly inde"endent of the 5.ecutive so that they may be altogether free in taking any decision according to la!# !ithout fear of re"risal or e."ectation of favours$ They should not# nor "erceived to be# sim"ly u"holding the actions of the government of the day even if those actions !ere not according to the la! of the land$ 2$2$ 6(,*7(@5+T(,A SOF5,573+TA

7t is a fundamental "rinci"le of legislative "o!er in a democratic state that 6arliament is su"reme$ +o other "o!er can restrict or control its legislative "o!er$ This stands true even as regards its "rocedure and such sanctions as may be im"osed on its members$ This does mean that 6arliament may# controlled as it is by the 5.ecutive# effectively abolish all the Courts$ <o!ever# !hether it !ould in actual fact do it or not is a matter of conjecture$ *ike!ise# it is "ossible that the Courts may "ronounce in an a""ro"riate case come before it that a "articular "arliament !as unla!fully constituted$ <o!ever# such head on institutional collisions have rarely occurred in this day and age o!ing to the mutual res"ect that 6arliament and the Courts o!e to each other$ 9or the above reasons# judges avoid treading on the toes of the *egislature as much as the *egislature does so$ <o!ever# this does not mean that 6arliament may not by statute restrict the role of the courts in any "articular matter# such as mandatory im"risonment in sentencing o"tions$ Similarly# Courts may render "rovisions ousting the jurisdictions of the Courts nugatory& see 6nisminic v Foreign ompensation ommission 7,-8-9 0 6 ,:;. One difference bet!een the doctrine of 6arliamentary sovereignty as obtains in the 'ritish Constitution and the @auritian Constitution may be noted$ 7n the @auritian Constitution# there is a s"ecific "rovision# section >4# to the effect that 'ub<ect to this onstitution, !arliament may make laws for the peace, order and good government of #auritius. 9rom this "oint of vie!# it is arguable that the @auritian 6arliament is sovereign in the limitless sense in !hich the 'ritish 6arliament is$ <o!ever# even in the 'ritish Constitution# it is arguable that 6arliament is limitless in its sovereignty$ (s Wade "uts it& C=ven under the (ritish system of undiluted sovereignty, the last word on any "uestion of law rests with the ourts.D The effect of this check and balance bet!een 6arliamentary Sovereignty and the 7nde"endence of the Courts# therefore# is that !hen 6arliament "asses a la! !hich is Euestioned before the Courts# the Court determines !hat the la! actually is$ 7n the conte.t of administrative la!# this !ould ha""en !here an (ct of 6arliament creates a ne! administrative authority to !hich it delegates or confers certain "o!ers$ 7n such a case# !hereas it !ould not be the business of the courts to Euestion the "olicy of government# yet it !ould be the Court?s business to ensure that actions of the State or State agencies are "erformed !ithin the "arameters of the ,ule of *a!$

2$:$

T<5 ,-*5 O9 *(W

Westminster @odel Constitutions# !hich the Common!ealth countries have inherited# are founded u"on the conce"t of the rule of la!$ (t its most sim"le this means that everybody must act !ithin the confines of the la!$ @isinter"reted# this may lead to dangerous "itfalls$ (n e.am"le that is often brought home is that of 3ermany during the forties$ 5verything that the State did under <itler !as under the la!$ When a""lied in the conte.t of administrative la!# ho!ever# the rule of la! means that & >1 every government authority which does some act must be able to <ustify its action as authori5ed by law 3 and in nearly every case this will mean authori5ed by 6ct of !arliament. The courts !ould be concerned !ith ensuring that the 5.ecutive has com"lied !ith the enabling (ct of 6arliament in the manner in !hich it intended$ We read ho! there gre! a lot of uneasiness at first against the "arliamentary "ractice of delegated legislation in 5nglish legal history and the criticism of *ord <e!art# the then *ord Chief 8ustice of 5ngland# !ho referred to such "ractice as unhealthy in his !ork entitled& C %he *ew Despotism$D The Committee !hich had been set u" to revie! the system had s"oken in favour# inter alia# of "lacing of some safeguards such as& (a) the removal of Oouster clauses?; (b) the delimitation of any discretion given to the delegated "o!er$ The Courts are likely to vie! the e.ercise of e.ecutive action from that "oint of vie! under the ,ule of *a!$ Thus# if an (ct em"o!ers an authority to make an a!ard after follo!ing a s"ecific "rocedure and the authority makes an a!ard !ithout follo!ing the "rescribed "rocedure# then the Courts are likely to decide that the decision making body has e.ceeded the "o!ers "o!ers laid do!n by the statute$ 7n such a case# anyone !ith Osufficient interest? can a""ly for judicial revie! reEuesting an order of certiorari to Euash the decision$ 7t is also o"en to the Courts to construe the e.istence of im"lied limits on the e.ercise of e.ecutive "o!er$ The courts !ill# accordingly# Oread in? certain limitations u"on an authority?s statutory "o!ers$ 9or e.am"le# it must not act unfairly# it must not act unreasonably$ 7f on an a""lication for judicial revie! the courts are satisfied that one of these im"lied limits has been e.ceeded then again the result !ill be that the administrative body !ill he held to have acted ultra vires# and its decision may be Euashed$ 6arliament# in the e.ercise of its sovereignty# may have "laced e."ress limits on the "o!er of the administrative authority$ Some of these !ill be mandatory# breach of !hich al!ays results in action being declared to be ultra vires$ Other e."ress limits are regarded as merely directory# and failure to com"ly "recisely !ill not usually invalidate the administrative action$ Where an authority is found# u"on an a""lication for judicial revie!# to have acted ultra vires# the act in Euestion !ill be void$ Conversely# if a body acts Ointra vires? that is# !ithin the limits of the "o!er it has been given in its enabling stature# its actions !ill be immune from revie! by the courts$ The only e.ce"tions to this rules are Oerrors of la! on the face of the record$? *ord 6earce in the (nisminic Case gave a clear e."lanation of this !hole area&

lack of <urisdiction may arise in many ways. %here may be an absence of those formalities or things which are conditions precedent to the tribunal having only <urisdiction to embark on an in"uiry. 2r the tribunal may at the end make an order that it has no <urisdiction to make. 2r in the intervening stage, while engaged on a proper in"uiry, the tribunal may depart from the rules of natural <ustice4 or it may ask itself the wrong "uestions4 or it may take into account matters which it was not directed take into account. %hereby it would step outside its <urisdiction. )t would turn its in"uiry into something not directed by !arliament and fail to make the in"uiry which !arliament did direct. 6ny of these things would cause its decision to be a nullity. 9or a "o!erful "hiloso"hical justification of the doctrine of the rule of la!# one may read 9$ ($ <ayek# CThe ,oad to SerfdomD (/0>>) !ho states& >1 stripped of all its technicalities this means that government in all its actions is bound by rules fixed and announced beforehand 3 rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one?s individual affairs on the basis of this knowledge. 6ursglove# in his te.tbook on (dministrative *a!# gives a modern e.am"le to illustrate the force of <ayek?s statement and the institutional need for e.ercising legal control over use of e.ecutive discretion$ <e cites the case of ongreve v @ome 2ffice 7,-;A9 B( 80- as ty"ical and instructive$ The facts of Congreve !ere& that under The Wireless Telegra"hy (ct /0>0 the <ome Secretary !as vested !ith the "o!er to revoke or vary a television licence$ -ntil :/ @arch /0K4# the fee for a colour television licence !as P/2 for t!elve months$ 9rom / ("ril /0K4# it !as increased to P/1$ Some vie!ers !hose licences e."ired after :/ @arch had the brilliant idea of taking out ne! licences before that date# thus "aying only P/2 ho"ing to avoid "aying the increased P /1$ The <ome office reEuired these "eo"le to "ay the e.tra PJ$ When they declined to do so# the <ome Secretary revoked the licences of those !ho did not$ They "rotested before the 6arliamentary Commissioner for (dministration !ho strongly condemned this action$ <o!ever# he added that he could not criticiHe the <ome Secretary !ho stated he had acted on legal advice obtained$ The legal issue !as !hether the <ome Secretary had the "o!er to revoke the licences of those !ho had refused inasmuch as his discretion to revoke !as unfettered$ The Court of (""eal held that the revocation !as invalid$ *ord ;enning @, said& %he licence was granted for ,0 months and could not be revoked simply to enable the #inister to raise more money. &ant of money was no reason for revoking a licence1 <e !ent on to comment that the failure to foresee that the rise in the licence fee !ould be foreseen by conscientious citiHens# !as a bureaucratic failure$ The <ome Office sought to make good the failure by acting in a "lainly unfair manner and claiming that their discretion so to do !as unfettered$ T!o incidences of the a""lication of the ,ule of *a! are& the conce"t of secularism and the doctrine of ultra vires$ 2$>$ S5C-*(,7S@

@ost constitutions# !ith a fe! e.ce"tions# "rovide for the dissociation bet!een the "olitical state and religious faith$ Whereas their 'ills of ,ights enshrine the freedom of conscience# they do not subject "olitics to religion as used to be the case in the middle ages in 5uro"e !hen the Church and the State !ere regarded as indivisible$ 5."erience in these countries sho!ed that such a immi.ation became the hot bed for innumerable devastating conflicts$ 7n most Common!ealth countries# accordingly# the Constitutions !hile "roviding for the freedom of religious "ractice# actually divorce religion from "olitics$ They are secular# in this sense# secular constitutions$ Secularism is understood in section 2 of the @auritian Constitution !hich "rovides& %his onstitution is the supreme law of #auritius and if any other law is inconsistent with this onstitution, that other law shall, to the extent of the inconsistency, be void.D On the other hand# section // allo!s for the freedom of conscience$ 7t "rovides& =xcept with his own consent, no person shall be hindered in the en<oyment of his freedom of conscience, and for the purposes of this section, that freedom includes freedom of thought and of religion or belief 1 D This does mean that in conflicts arising bet!een different religions# beliefs or faiths# !hether bet!een factions !ithin the same community or bet!een different communities !ithin the same state# resort should be had to the rule of la!& !hat the la! "rovides$ 2$4$ -*T,( F7,5S or Q ('-S ;5 6O-FO7, R

The doctrine of the rule of la! does mean that !hereas the legislative "o!er of 6arliament !ill be recogniHed# the courts !ould still be able# !ithin the limits allo!ed by the la!# to control administrative action through the conce"t of ultra vires or Cabuse of power.D 7t is borro!ed from 9rench Cdroit administrative#D !here the conce"ts of C vice de procedureD and Cabus de pouvoirD are fairly !ell develo"ed$ Thus# the courts may im"ly limits on the "o!er of the administrative authority$ These include the follo!ing 2$J$ unreasonableness acting on irrelevant considerations failing to take into account relevant considerations acting on no evidence acting for an ulterior "ur"ose acting in bad faith acting unfairly$

,5@5;75S 7+ (;@7+7ST,(T7F5 *(W

( case in administrative la! "roceeds by t!o stages& the *eave Stage and the @erits Stage$ (n a""licant in this area of the la! should have a locus standi to bring a case before the Courts$ This is designed to "revent busy bodies from seeking academic decisions$ (n individual# accordingly# !ith Osufficient interest? can a""ly# in 5ngland# to the ;ivisional Court of the <igh Court for judicial revie! of an e.ecutive decision !hich he vie!s is ultra vires$ The remedies available include the "rivate la! remedies of damages# injunction and declaration; and the "ublic la! remedies# in the form of "rerogative orders; mandamus# "rohibition and certiorari$

( number of distinguishing features should be noted in its remedial com"onent$ 9irst# its end "ur"ose is to ensure that "ublic bodies act !ithin the la! and not to com"ensate as such the individual for "rejudice caused to him as in the case of tort& Dunlop v &oollahra #unicipal ouncil 7,-.,9 0 &C$ 8-/$ Second# courts are only concerned !ith the legality of a decision# not !ith its merits$ The court is not there to substitute its o!n value judgments for those of the inferior body$ 7t is not the "ur"ose of the Courts to su""lant government by the 5.ecutive by 3overnment by 8udges$ Third# judicial revie! is to be distinguished from an a""eal$ 7n an a""eal# the decision taken by the inferior jurisdiction may be reversed$ 7n a judicial revie!# it may be Euashed and remitted to the inferior body to take again according to la!$ 9ourth# "rom"t action is essential for success in an administrative action$ (dministrative la! "rovides for the vigilant and !ould ignore the indolent$ 2$K$ T<5 +5W C<(**5+35S O9 T<5 S56(,(T7O+ O9 6OW5,S That 6arliament is sovereign in its legislative function# the 5.ecutive holds e.clusive "o!er to formulate and e.ecute "olicies of government and the Courts are inde"endent in their inter"retation of the la! assume they kno! and res"ect their demarcation lines and mutually res"ect it in both theory and "ractice$ They also assume that in themselves the three arms of government do not do anything e.ce"t live and die by the institutional objective for !hich they are established$ The reality may !ell be different$ 6arliament may not live and die for the "eo"le for !hich it is su""osed to act$ 7t may# in the hands of some# turn out to be a handy machinery to legislate for certain vested "olitical# "arty# grou" or even individual interest$ The 5.ecutive may# for its "art# instead of acting fairly and inde"endently# do just the bidding of the tyrannical majority in 6arliament$ *ike!ise# the 8udiciary may end u" living just for itself# the "rofessions (the 'ench and the 'ar)# blissfully unconcerned !ith !hat ha""ens to the actual delivery of justice to the community$ The com"le.ity of running "resent day government affairs has not hel"ed but only tensed u" the doctrine$ 7n a !orld of a myriad of conflicting and o""osing interests# from the economic to the "ersonal# the cultural to the scientific# the secular to the non secular# considerations of the state and rights of the citiHen# the !ill of the majority and the "rotection of the minority# decisions have to be taken at various levels and s"eedily$ While too dogmatic an a""roach or a""lication of this doctrine risks isolating State institutions and rendering State activity sluggish or "aralytic# there is an obvious danger in a com"romise of this doctrine$ (ccordingly# so that the three arms of the State might effectively contribute and enable government to function and deliver# a "ro active attitude is desirable# !ith all fundamentals intact$ ( reactive attitude# its is thought# !ill lead to head on constitutional collisions and end u" s"elling the death of the fundamentals themselves and the doctrine$ (ccordingly# there is a need to steer "ublic affairs in such a !ay that they !ork for the general good$ This assumes a great im"ortance !ith the ne! era that !ith recent events in !orld history such as decoloniHation# develo"ments in regional economic and "olitical grou"ings of states# gro!th of international human rights instruments etc$# international institutions and organiHations$ 7t is in the light of such ne! challenges that !e have to e.amine the doctrine of se"aration of "o!ers$ 2$1$ 6(,*7(@5+T(,A S-6,5@(CA

One !ould be Euick to note that even the 'ritish doctrine of 6arliamentary su"remacy has not been !ithout attack lately$ *ord Scarman in his !ork# =nglish Caw: %he *ew Dimension, ,-;:, p ,A, has made the follo!ing comment& )t is the hopelessness of the law in face of the legislative sovereignty of parliament which makes it difficult for the legal system to accommodate the concept of fundamental and inviolable human rights. #eans therefore have to be found whereby 7,9 there is incorporated into =nglish law a declaration of such rights, 709 these rights are protected against all encroachments, including the power of the state, even when that power is exerted by a representative legislative institution such as parliament.D 7n fact# (arker, =, in %he !rinciples of 'ocial and !olitical %heory, ,-A,, p. 0D0 # challenges the traditional vie! of "arliamentary sovereignty$ 6arliament !as in theory meant to "ass just la!s but !hat they do is "ass la!s# unconcerned !ith !hether they are just or not$ %he supreme sovereign which stands in the background of any politically organi5ed community is <ustice: <ustice in the sense of that right order of human relations which gives to the greatest possible number of persons the greatest possible opportunity for the highest possible development of all the capacities of the personality. +aHi 3ermany and a"artheid South (frica are just t!o e.am"les of unjust la!s "assed by 6arliament !hich the Courts could not Euestion$ (s regards 6arliamentary sovereignty# the -nited States came u" !ith a formula for a modern democracy$ +ou must first enable the government to control the governed4 and in the next place oblige it to control itself. The 9ounding 9athers? formula !as to first dra! u" an entrenched 'ill of ,ights# then enact for a democratically elected 6arliament !hose "o!ers could only be limited by the 'ill of ,ights# and !hich "o!ers !ere justiciable and enforced by a constitutional system of courts !ith "o!er to revie! all legislative and e.ecutive acts under the "rovisions of the 'ill of ,ights$ The "revailing vie! today# therefore# is that every democratic nation o!es a solemn obligation to its 8udiciary to curb "arliament?s "o!ers and to ado"t a !ritten bill of rights beyond the reach of the legislature or e.ecutive$ 2$0$ T<5 5G5C-T7F5

Traditionally# the 5.ecutive !as regarded as the institution that became the de"ository and the re"ository of the assets of the state$ The <ead of State# the Cabinet# the Civil Service analyHed the needs of the "eo"le and the country as a !hole and develo"ed "olicies for "eace and good government along "rinci"les of Cgood governance$D <o!ever# the reality is that !ith <ead of State being no more than a choice of the "olitical "arty in "o!er# Cabinet being no more than influential members of the legislature and the Civil Service being no more than serving the government of the day# the very assum"tion that the 5.ecutive !orks for the general good stands discredited$ 7n the Westminster @odel Constitution# the Civil Service is su""osed to be im"artial and inde"endent$ While there may be no doubt of the fact that it tries to be# the "olitical head in the 5.ecutive may very !ell engineer the civil service to do no more than its bidding and some civil servants too ready to oblige for reason of "ersonal interests$

There can be no doubt# accordingly that there is a need for a judicious a""roach in the "romotion of the doctrine of se"aration of "o!ers# a lot tensed u" in today?s "ublic affairs$ This holds true for every individual engaged in the "ublic affairs# no matter !hether he is a "olitician# a civil servant or a 8udge$ 2$/B$ T<5 8-;7C(T-,5

9or the Courts# the res"onsibility is higher inasmuch as he is an artist of the last resort$ 8udicial !ork is not synonymous !ith legal !ork$ 7t goes !ell beyond la!$ ( Court is# far from being just a Court of la!# a Court of 8ustice$ There is a difference bet!een !hat the la! is and does; and !hat justice is and does$ The tool of the trade of the 8udiciary is the !ord$ With !ords# he can create a number of !orlds# not necessarily conflicting$ The 8udge in his "rofession finds himself inter"reting Odemocracy?# Othe rule of la!#? Ogovernment#? Ohuman rights#? OeEual rights and o""ortunities#? and thereby creating an enhanced order in universal human justice !ith every !ord he inter"rets$ 8ustice is not a technicality# a mere static inter"retation of man made rules$ 7t is a dynamic disci"line$ <e looks at !hat la! does to human beings in concreto !hen other disci"lines look at !hat ha""ens to human being in abstracto$ 8ustice is# to such a 8udge# !hat justice does to the human being$ 2$//$ T<5 *795 O9 T<5 *(W

( Court does not o"erate in vacuo$ One does not look at cold# stark reason# calculated logic or formulae in deciding the justice of a case$ CThe life of la! is not logic but life itself#D stated *ord ;enning$ The ultimate test is the test of the human in the la! and not the la! in the human$ 7t is in this sense that common la! s"eaks of the justice of the case$ Thus# in its "ursuit of the justice of the case# a Court !ill find itself facing a choice bet!een o"tions$ One o"tion is that of a honourable e.it$ The other is that of a res"onsible e.it$ ( honourable e.it !ould be !here the Court !ould sim"ly say& C7 am bound by the la!# by "recedents# by "rocedure to say that ho!ever much 7 feel for the "laintiff# 7 cannot do much as a Court of *a!$D ( res"onsible e.it is !here the Court says& C7nde"endence is !hat inde"endence means& la!# "recedents and "rocedures are but means to an end not an end in themselves# to assist a Court of 8ustice$ *et me see ho! the justice of the case !ould be satisfied under the la!$D That involves# according to o!n *a! of 7nter"retations# a constructive and "ur"osive a""roach$ 7n all systems of la!# decision makers inter"ret la! in life# to im"rove living conditions of human beings$ 5.am"les abound in the history of all systems of la!$ T!o of !hich come to the mind immediately are& Donoghue v 'tevenson in the common la! system and l?6rret Eand?heur in the 9rench system$ 2$/2$ CO-,TS? 8-;7C7O-S (66,O(C< TO T<5 ;OCT,7+5 O9 S56(,(T7O+ O9 6OW5,S

7n the inter"retation of the la!# the Court also becomes to a certain e.tent# a "olicy maker$ 'ut its "olicy is limited to the strict confines of the la! of inter"retation of statutes$ 7t does so !ithout violating the fundamentals !ithin !hich the : arms of 3overnment function# as in the 2 cases of the thirties !hich had an im"act in society in general$ 7n fact# at 7 (/)# the *atimer 3uidelines state& Eudges may be constructive and purposive in the interpretation of legislation, but must not usurp parliamentFs legislative function.

The ability of judges to dis"lay activism or restraint in the !ay they decide cases de"ends u"on his ability to use the tool of language$ +o !ord has a "ro"er or absolute meaning$ True it is that there is are strict rules of inter"retations$ <o!ever# that does not sto" language from being evolutive and judges from being constructive !here the la! has become too rigorous$ 9or e.am"le# the invention of 5Euity and Trusts in 5nglish la! is a ty"ical e.am"le of ho! judges sought to re invent as it !ere the justice system$ There are other fictions la! has created in its science of inter"retation$ One is the fiction of Cintention of the legislature$D 7n inter"reting a statute to a "articular situation# Courts are intent u"on discovering the Ointention of 6arliament?$ This is done by inter"reting the meaning of the !ords used in the a""ro"riate statute$ Thus# judges become creative !hen they give generous or restrictive meaning to !ords in a statute de"ending u"on !hat they !ould like the outcome to be for the justice of the case$ That is !hy it is said that 6arliament only Olegislates against a background of judge made rules of inter"retation?$ 7n an age of democratic "ursuits# it is fair to say that judges are entitled to "resume that !hen conferring "o!er on any "articular "erson or body# 6arliament did not intend creating mini autocracies or mini kle"tocracies but mini democracies every!here$ 7t is this attitude !hich has o"ened the !ay for Ojudicial activism?$ 8udicial activism has not been !ithout "rovoking diverse academic and "olitical controversies$ On the one hand# some align !ith 6rofessor 8 ( 3 3riffith# !ho# in his book CThe 6olitics of the 8udiciary$D 6rofessor 3riffith ado"ts a @ar.ist analysis$ <e sees government (es"ecially Conservative government) and the 8udiciary as u"holding the rule of ca"italist economic forces$ <e Euotes !ith a""roval the "hrase& CL the rule of law is only another mask for the rule of class. <e goes on to say& 1 !adfield, %ameside, Caker1 represent the <udicial desire not so much to control arbitrariness as to protect the individual against political policies which are seen by the Eudiciary to be contrary to the public interest1 <e adds& 1all these <udicial decisions strike down political decisions taken during the period of Cabour Governments1 ministerial decisions which onservative #inisters might not have taken. On the other hand# 6rofessor <W , Wade in his <amlyn *ecture of /01B !ould offer a diametrically o""osite vie! and of Constitutional 9undamentals$& 1the important thing is that the courts once again accept 7post $idge v (aldwin9 1 that part of their duty was to re"uire public authorities to respect certain basic rules of fairness in exercising power over the citi5en1 2$/2$ CO@@O+W5(*T< CO-,TS

7n the Common!ealth jurisdictions# the variety obtaining bet!een judicial activism and judicial restraint is as diverse as the number of countries !hich it re"resents$ On one e.treme# one may see the 7ndian 8udiciary !hich has sho!n courageous Cavant gardisme$D On the other# some of the small states such as @auritius# Seychelles# @alta have refrained from "ushing the limits far$

2$/:$

T<5 8-;7C7(,A?S ;7SC,5T7O+

7t is !orthy of note that the 8udiciary is the institution of the State !hich has "resumably the largest amount of discretion$ 7t is a discretion accountable to itself$ ;!orkin has !ell e."ressed it& Eudicial decisions are political decisions, at least in the broad sense that attracts the doctrine of political responsibility./ 8ustice 'hag!ati as Chief 8ustice of 7ndia# addressed the 'ritish 7nstitute of 7nternational *a! in the follo!ing !ords& 1.., the <udiciary is called upon to interpret the onstitution and the law and ) may tell you from my experience that this function of interpretation is a highly creative function. )t is therefore to my mind that a Eudge must be in tune with social needs of the re"uirement and be above all a <udicial statesman. Caw does not operate in a vacuum. )t is intended to have a social purpose and an economic mission and a truly great Eudge must always, while interpreting the law, keep constantly in mind the hopes and aspirations of the people and the needs and re"uirements of the society.2 This is the discretion !e should be concerned !ith$ The 'angalore 6rinci"les has "ut it succinctly& namely# 7E9udges and lawyers have a special contribution to make in administration of <ustice in fostering universal respect for fundamental human rights and freedoms. 8ust three e.am"les !ould suffice to illustrate the manner in !hich judicial discretionary inter"retation of !ords may be used to o"en ne! !orlds$ They are& Odemocracy?# Othe rule of la!#? and Ohuman rights$? They are from a myriad of other terms and "hrases such as Ohonest government#? Odemocratic "rocesses and institutions? !hich la! often uses and but leaves it to the intellectual muscle of the 8udge to develo" and make ha""en as a reality in human society$ 2$/>$ T<5 *(T7@5, <O-S5 3-7;5*7+5S

The need of a Common!ealth (""roach to the doctrine of se"aration of "o!ers !as felt so seriously that la!yers# judges and "arliamentarians sat do!n to !rite their o!n 3uidelines at the *atimer <ouse# @arlborough <ouse# *ondon$ They are# at "resent# no more than a draft instrument formulated as a follo! u" after the early C<O3@s decided that there should be some follo! u" action on the <arare ;eclaration of /00/$ 7t had been 2B years earlier that certain fundamental "rinci"les of the Common!ealth had been laid do!n in Singa"ore by the Singa"ore ;eclaration of /0K/$ <o!ever# as time "assed# the distance bet!een the dream and the destination looked never so great$ The <arare declaration# accordingly# took u" those "rinci"les as a stark reminder of the Singa"ore ;eclaration and re affirmed the "rinci"les therein laid out$ What !ere theyM ;emocracy# democratic "rocesses and institutions# the rule of la! and the inde"endence of the judiciary# just and honest government# fundamental human rights# eEuality for !omen# "rovision of universal access to education# continuing action to bring about the end of a"artheid in South (frica# the "romotion of sustainable develo"ment and alleviation of "overty# e.tending the benefits of develo"ment !ithin a frame!ork of res"ect for human rights# the "rotection of the environment# action to combat drug trafficking and abuse# and communicable diseases# held for small Common!ealth states# and su""ort of the -+ and other

/ 2

$ Taking Tights Seriously# /0K1$ $ Common!ealth *a! 'ulletin# Fol$ /:# +o 7# "$ 2:K$

international institutions$ @uch of the story of the Common!ealth since /00/ has revolved around the im"lementation of the <arare ;eclaration$ The objective is the giving of democratic credential to any government of the Common!ealth$ Thus# the then regime in South (frica# 6akistan# +igeria# =imbab!e# to name but a cou"le# may be regarded as some of the e.treme situations !hich the Common!ealth community !anted to avert$ The focus of the Common!ealth !as on the obvious and the overt$ That included condemnation of military regimes$ 7n fact# that !as a !rong a""roach inasmuch as some civilian regimes !ere !orse than the military regimes in their abuse of human rights and their e."loitation of the "eo"le and national assets$ 'ut the conce"t of sovereignty of 6arliament# a democratically elected government and the "o!er of the e.ecutive# including subtle subjugation of the 8udiciary "roved as erosive of democracy as the institution of military regimes# !ith the only difference that one !as overt and the other covert$ 7t is# by and large# the end of the Cold War !hich brought the flood lights on the subtler autocracies and the kle"tocracies$ 7t !as found that democracy !as much more than fair and free elections but a matter of bringing about a culture$ The *atimer <ouse 3uidelines seem to be# therefore# an attem"t to inculcate that culture !ithin civilian regimes# the ne! Common!ealth initiative$ 5ven if most of the basic "rinci"les of democracy e.isted in social culture of the "eo"le# the dis"arity !as bet!een that "rimeval# ethnic or root culture of the "eo"le and the "olitical culture that came about !ith the advent of Ccolonialism !hich led to the invention of systems of autocratic "o!er$D Thus# there !ill al!ays be some !ho !ould believe that& 1the courts have made a stand against flowing 6cts of !arliament to create pockets of uncontrollable power in violation of the rule. Others# like 6rofessor 3riffith !ould argue that it is not the "ro"er role of the 8udiciary to create ne! la! by re"lacing their o!n "olicies for those of the elected @inisters$ 3eorge Winterton (*%, Fol 0K# /01/) says& 1 the fundamental criticism of &ade?s general approach to government is that he seeks to raise the nonHelected <udiciary above the elected legislature4 it is undemocratic. 6rofessor Wade !ould argue that far from creating ne! la! the 8udiciary is only visiting their constitutional "osition as guardians of the rule of la!$ The controversy continues$ What e.actly is the modern meaning of OdemocracyM? Should 6arliament be able to confer absolute and unfettered discretion on administrative authoritiesM (re the courts# as 6rofessor Wade "uts it# mere mechanical devices for doing the bidding of 6arliamentM Or are they to re discover in their role Ca deeper constitutional logic than the crude absolute of statutory omnipotenc eMD (s has been stated recently in C!arliamentary 'upremacy and Eudicial )ndependence, 6 ommonwealth 6pproach#D by 6ierre Olivier 8j# at "$ 44& )t is trite that the 6merican, anadian and =uropean models of government, limited by a human rights regime and enforced by an independent <udiciary, serve the interests of society better than any other system. D <e adds& 'uch models guarantee the most cherished and valuable of all rights vi5. the fundamental rights of people. (y protecting the rights of all e"ually and e"uitably, they

ensure a large measure of peace and tran"uility amongst individuals and groups, including minority and ethnic groups. 2$/4$ 8-;7C7(* (;@7+7ST,(T7O+

9rom the above# it is fairly obvious that the "rinci"les a""licable to judicial administration are "articular to the 8udiciary$ The objective is to give administrative su""ort to the national justice system# !ith due regard to the se"aration of "o!ers and the rule of la!$ 2$/J$ 6O*7CA CO@@7T@5+T

Court 6ersonnel# accordingly# have a res"onsibility to ado"t a Court 6olicy Commitment for fulfilling that role and in the "rocess moderniHing the justice system by the ado"tion of tools and techniEues# state of the art technology and a""ly the sciences necessary to live u" to the e."ectations of a democratic state$ The "roblem this raises in court administration are t!o& (a) Who decides !hat has to be doneM (b) Who foots the billM 7f management is left to judicial officers# it is believed that !e shall end u" !ith a double suicide& !e shall have mediocre managers as !ell as mediocre judicial officers inasmuch as both are s"ecialist jobs$ 7f it is left to the 5.ecutive# they !ill be "erceived as having an e.ecutive agenda not consistent !ith the role of the inde"endence of the judiciary$ ( salutary com"romise conce"t has been mooted# therefore$ (dministration of the courts shall be the concern of the 5.ecutive but under the leadershi" of the courts$ 7n this !ay both the science of judging and the science of managing the "rocess !ill be reconciled !ithout hurting the fundamental "rinci"les of any of the three arms of the State$ The elected legislature !ill decide the Euality of the justice system it !ants and "ay for# the 5.ecutive shall im"lement the "olicies and the 8udiciary shall deliver justice according to la! amidst more dynamic# innovative and "ro active conditions$ The court administrative officers should also develo" a "ro active relationshi" bet!een the 5.ecutive branch of government to enable the 8udiciary to "lay fully its constitutional role !ithin the State as a trustee and guardian of the rights of the citiHens and not as a trustee and the guardian of the image of only the 'ench and the 'ar$ (nother "articular feature of the court administration is that it should make clear demarcation lines bet!een "urely administrative# Euasi administrative and judicial activities$ The "rinci"les of modern management demands that these functions be "ro"erly defined to avoid any confusion of roles$ 7ssuing summonses is an administrative matter !here the "rocess im"lies sending them after they have been authoriHed$ 'ut the same "rocess is Euasi judicial !hen authority to issue is being delegated to an officer of the court$ When the issue reEuires a determination !hether summons should issue or not# it is a judicial matter$ 2$/K T<5 +5W CO+C56TS 7+ 8-;7C7(* (;@7+7ST,(T7O+

@odern court management include the introduction of such conce"ts as demarcation of res"onsibility bet!een administrative matters# Euasi judicial matters and judicial matters$ The Court system does not e.ist for the 'ench and the 'ar but for the citiHen$ (ccordingly# the conce"t of court service to the community should be develo"ed$ Such sensitive matters as delay and "erce"tion of delay should be resolved scientifically such as by the ado"tion of case management# case flo! management# differentiated case management$ 7t is not enough to make judicial decisions available to the 'ench and the 'ar$ Critical data that serve the cause of modern management have to be identified and gathered for an intelligible and "ur"ose use in the legal

and judicial system$ The conclusions have to be "ublished and systems have to be devised so that corrective actions may be taken !ith the collaboration of the 6o!ers That 'e$ 2$/1 6,O (CT7F5 ,O*5 O9 CO-,T (;@7+7ST,(TO,S

The modern court administrator is a key "layer in each and every as"ect enumerated above$ <e sets u" his vision# his mission# his goals and his objectives after consulting his judicial head$ <e drives the "rocess no matter !hether the issues relate to case flo!# to delay reduction# to the a""lication of orders# the calling of formal and informal meetings !ith the "layers involved or !ith members of the local community$ 2$/0 7+;735+7=(T7O+ O9 C(S5 9*OW @(+(35@5+T

7t is the duty of the court administrators to attem"t to take u" all the issues !ith the judicial officers of the Court !ith a vie! to creating the conditions "ro"er for the formulation of a "ro"er system of judicial administration indigenous to the national judicial system# under the leadershi" and control of the 8udicial Officer$ 2$2B 6,7O,7T7=(T7O+ 7+ 6,O85CTS

The Court (dministrator should be committed to making a SWOT analysis of his court# imaginative in develo"ing "rojects and "rioritiHing bet!een them for "rogressive innovation and im"rovements$ 2$2/ T<5 7SS-5 O9 ;5*(A (+; T<5 ,O*5 O9 T<5 6*(A5,S 7+ T<5 @(C<7+5,A

The "roblem of delay should demand his s"ecial attention$ (n e.ercise should be carried out to identify the various reasons for delays$ Thereafter# dynamic methods should be utiliHed not only to resolve the "roblem of back log but also to ensure a smooth dis"osition of cases as a !hole in the courts$ The assistance of all the "layers in the machinery of justice should be secured& such as the (ttorney# the 'arrister# the 6rosecutor# the Court -ser !ill be sought to!ards the search of a solution to the "roblem of delay and the smooth dis"osition of cases in the courts$ There should be an avoidance for indiscriminate loading of cases of !hich the chances of immediate dis"osal are remote$ Only such cases should be fi.ed !hich are ready for trial$ Conversely# all cases of !hich the chances of dis"osal are remote should be considered !ith the seriousness they deserve and efforts should be s"ent to e."edite them as Euickly as "ossible# !ithin a scheduled time frame$ The hiccu"s concerning each category should be studied and measures taken to resolve them$ 2$22 ;7995,5+T7(T5; C(S5 @(+(35@5+T

There should be a system of ;ifferentiated Case @anagement so that cases should be fi.ed in terms of their likely duration& ty"e# nature and dis"osability$ 7n this regard# a""ro"riate tracks should be introduced along the "rinci"le of Ccourses for horsesD such as 9ast Track# +ormal Track# Com"le. Trials$ 2$2: ST,7CT 6O*7CA (3(7+ST 6OST6O+5@5+TS

( strict "olicy against "ost"onements should be ado"ted and sanctions im"osed !here the "ost"onements sought are un!arranted$ 2$2> 3-7;5 *7+5S (+; T7@5 SC<5;-*5S

3uidelines and time schedules should be set for every critical activity in the court system$ These should be "ublished and monitored$ ,egular meetings should be held to ensure that they !ork "ro"erly$ The staff should be made to o!n the decisions relating to the guide lines and time schedules so that they may !ork$ 2$24 @55T7+3S (+; 65,7O;7C ,5F75W

@eetings !ith all the "layers should be a regular feature in the Court (dministration and the methods used should be "eriodically revie!ed and# !here necessary# modified for corrective or remedial actions$ 2$2J 7+T5**737'*5 -S5 O9 ST(T7ST7CS

Sim"le Statistics should be gathered and used !ith a vie! to assessing daily "rogress or regress# as the case may be# of the court in the day to day dis"osition of cases$ Corrective measures# !here necessary# should be taken as soon as "ractically "ossible to restore "erformance to set goals and objectives$ 2$2K 3,5(T5, 6,O95SS7O+(*7S@ 7+ CO-,T (;@7+ST,(T7O+

Court (dministration should be regarded and "ursued as a s"ecialiHed "rofession demanding all modern techniEues of sound management "rinci"les$ (deEuate e."osure# local and international# should be given to court administrators !ith "ro"er certification for attendance and "artici"ation and ultimate recognition in "romotional and s"ecialist develo"ment chances in the career structure$ s$b$domah Se"t 2BB4$ (SS73+@5+TS /$ Sho! ho! @ontesEuieu?s doctrine of Se"aration of 6o!ers is of "articular relevance in the "resent day in judicial administrationM 2$ The judiciary should assume sole res"onsibility for having been caught in a time !ar" today$ <o! far !ould be agree or disagree !ith this "ro"ositionM :$ The 5.ecutive as !ell as the *egislature should "lay its "ro"er role in a modern judicial administration$ >$ 8udicial activism is !elcome$ <o!ever# charity should begin at home$ ;iscuss$

4$ 7dentify five major areas !here the la! should be changed so as to moderniHe judicial administration in @auritius$ J$ 7dentify five major areas !here the court culture should be changed so as to bring judicial administration in @auritius in line !ith !hat obtains in emerged jurisdictions $ K$ 7dentify five major areas !here the conditions of em"loyment !ithin the judicial system should be changed so as to taken judicial administration in @auritius into the ne! era$