LECTURES GIVEN AT THE UNIVERSITY OF MAURITIUS
To Court Officers of the Mauritian Judiciary
By Dr S.B. Domah, CJEI Trained Judicial Trainer, Judge of the Supreme
Court of Mauritius
PRINCIPLES OF JUDICIAL ADMINISTRATION
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) with the aim of effecting the necessary reform in the administration of the courts;
(d) by introducing the new concepts, skills and methods appropriate to a modern judicial
system.
Quotable Quote:
“”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.”
-
Benedict S. Alpen & Lawrence T.
Nichols,
Beyond the Court Room, Canada,USA
Lexington Books, 1982.
LECTURE 1 : AUGUST 25
1.
GENERAL PRINCIPLES
This introductory set of lectures are designed
2.
(a) to situate judicial or court administration in its constitutional context;
(b) to sound the rationale behind the Separation of Powers;
(c) to identify the differences between Executive Administration and Judicial
Administration;
(d) to enable course students to come up with an acceptable definition of judicial
administration.
PRINCIPLES APPLICABLE TO PUBLIC AFFAIRS
Course Students are also expected to know and apply the principles of good governance, of
transparency and accountability in the conduct of public affairs.
3.
PRINCIPLES APPLICABLE TO DEALING WITH CITIZENS
Course Students are expected to know and apply the principles of fairness in dealing with the
public, without discrimination.
4.
Course students are expected to discuss the idea of a Courts’ Charter for the Mauritian Courts.
At the end of the lectures, students should be able –
(a)
(b)
(c)
to draft a reasonably acceptable definition of Judicial Administration;
to identify the role of the Court system and their own role in it;
to define the roles of the 3 Arms of Government;
(d)
(e)
(f)
(g)
to come up with a modern statement of the function of the Courts in a
liberal democracy and a workable statement for the aim of the justice
system;
to demonstrate how Executive Administration differs from Judicial
Administration;
to apply the principles of fairness, accountability and transparency in the
conduct of public affairs; and
to produce a first draft of the Courts Charter.
LECTURE 2: SEPTEMBER 1
5.
THE LAW’S DELAY
Section 10 (2) of the Constitution of Mauritius enshrines the principle of “fair hearing by an independent
and impartial tribunal within a reasonable time.”
It is eloquent that in his famous soliloquy Hamlet spoke of the law’s delay as one of the major slings
and arrows of time. This VEXED QUESTION OF DELAY IN THE COURTS will be analyzed in these sets of
lectures. Above all, they will compare how other jurisdictions have dealt with the matter and what role and
responsibility the Judicial Administrations have in ensuring that the constitutional guarantee of the citizens
are ensured with respect to a “fair hearing by an impartial tribunal within a reasonable time.”
Course students are sensitized on how justice delayed is justice denied, come up with innovative ideas
about dealing with run of the mill cases as well as complex cases.
A sophisticated understanding of the problem is required to resolve the problem of delay.
“Delay: the Concept and the Problem. Delay is a blanket term covering a host of different
problems caused by various factors, all requiring different responses. Delay is not one problem, it is
a variety of problems.” Malcolm M. Feely, Court Reform on Trial, Why Simple Solutions Fail, Basic
Books Inc. New York, 1983, p. 182.
The several meanings of delay –
(a) the elapsed time between arrest and lodging of case;
(b) the dead time when waiting for the trial to start but does not start for technical
reasons;
(c) the numerous court continuances;
(d) Needless court appearances or missed appearances;
(e) Frustration over a variety of apparent inefficiencies of the system.
The American Judicature Society comments:
“Two years of research has convinced us that simply viewing delay as one problem is not
very helpful …. We prefer to view delay as a symptom of other problems that exist within a court
system.”
As regards responsibility for the state of affairs, it concludes –
“Our research indicates that all actors may be responsible for unnecessary case
processing time.”
SOME SOLUTIONS:
(A) JUDGES TO PERCEIVE THEIR ROLES AS LEADERS IN MARSHALLING EFFORTS FOR
REDUCING DELAY TAKING PROFESSIONALS ON BOARD;
(B) COURTS TO BE SERIOUS WITH FIXTURES AND NOT TO ALLOW EASY
DISPLACEMENTS;
(C)
(D)
(E)
(F)
(G)
(H)
6.
RIGID POLICY TO DEAL WITH CONTINUNACES;
LIMITING ISSUES WITH THE ASSISTANCE OF COUNSEL;
CONTROLLING CALENDARS;
APPOINTMENT OF FULL-TIME ADMINISTRATORS;
USE OF COMPUTERIZED INFORMATION SYSTEMS;
ADOPTION OF MODERN OFFICE MANAGEMENT TECHNIQUES AND SYSTEMS.
CASEFLOW MANAGEMENT
Course Students are expected to learn the skills of Case-flow Management and apply the
techniques, methods and principles applicable in dealing with the flow and prompt disposal of cases.
At the end of the lectures, course students should be able to –
(a) identify the various players who cause delay in the court set-up;
(b) take appropriate measures to deal with such factors for which they may be
responsible;
(c) suggest to the other players as to their role in reducing delays in the court system;
(d) assist them in providing the citizens with their constitutional guarantee;
(e) set up a case-flow management system appropriate to their court in the short time;
(f) propose a case-flow management system that is more permanent and more effective;
(g) contribute to the setting up of a system of informal time limits for cases before the
District Courts, the Intermediate Courts and the Supreme Court.
LECTURE 3: OCTOBER 6
7.
PRINCIPLES INVOLVED IN THE PROCESSING OF COURT CASES
“The courts’ isolation from informed public scrutiny and the almost complete lack of restraints on
powers of sentencing judges frequently result in wide disparity in sentences, as well as judicial procedures
that can be at times inconsistent when they are not inequitable, with adverse effects on certain classes of
defendants.”
-
Benedict S. Alpen & Lawrence T.
Nichols,
Beyond the Court Room, p. 25
Canada,USA
Lexington Books, 1982
Presumption of Innocence and dignity of persons
“It has been our habit to acclaim our noble pretensions at the same time that we lament the failures
in practice. The pretensions sound increasingly empty and unconvincing and our expectations fall far
beneath them.”
B enedict S. Alpen & Lawrence T. Nichols,
Beyond the Court Room, p. 26
Canada,USA, Lexington Books, 1982
Concept of Court Service to the Community
A fair and impartial system of justice is a constitutional provision guaranteed to the citizen. His
constitution also guarantees him equality of treatment, respect for his dignity and liberty. The courts are not
meant for the Bench and the Bar but for the citizen.
Court Decorum
While it is recognized that the Courts are meant to provide court service to the community, they
require certain basic protections themselves. These are respect and dignity. Justice to the people cannot be
given except in the serenity of the law. Court decorum has to be preserved and any compromise on these
may become counter productive.
Court decorum is preserved –
(a) physically by appropriate visible architecture, designs, ensigns;
(b) conduct and behaviour of the personnel;
(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 which court personnel deal with an expected or unexpected situation in
a court so that the dignity of the court is preserved and the situation is returned to normality.
Court monitoring by Judicial Officers, by Court Managers and by NGOs.
NGO Court-monitoring programmes have been designed to respond to citizens’ concerns.
For example, Projects
focusing on rights of citizens
harshness in sentencing some particular groups
behaviour of court personnel including judicial officers
court watching programs whereby lay citizens scrutinize the activities of
and around the courts.
“The actual work of court watching, and much of the direction of its progress, is usually done by lay
citizens. ….. Legal professionals … may hesitate to antagonize judges and other court personnel with whom
they must continue to have a working relationship. Such attitudes may appear to be expedient and selfserving, …. For lawyers know that it is the clients who suffer when judges are offended by the attitudes or
actions of attorneys. Counsel are retained to represent the best interests of their clients and may feel,
understandably, that it is wiser for them to ignore issues of reform of the system in which they practice.”
Benedict S. Alpen & Lawrence T. Nichols,
Beyond the Court Room, p. 27
Canada,USA, Lexington Books, 1982
The who, what, how and when of court watching. It may best and most professionally effected –
(a) by lay personnel, involving the judges, the public and the professionals. Do you
agree? Why?
(b) After learning the basic rules of procedure in the court system? Why?
(c) By interacting with all players in the system: police, prisons, bail bondsmen,
defenders, prosecutors, journalists etc.
(d) Distribution of printed materials to participants
(e) Conducting surveys;
(f) Obtaining statistics;
(g) Etc.
At the end of this set of lectures, course students should be able –
(a)
(b)
(c)
(d)
to sit in the shoes of an outsider;
analyze how far reality betrays rhetoric in the actual court system;
make proposals for better court service to the community and scrubbing the system;
develop programmes for the attainment of the objectives.
LECTURE 4: OCTOBER 13
8.
ADMINISTRATIVE PRINCIPLES AND PRACTICE IN COURT ADMINISTRATION
This set of lectures are designed to show why simple solutions fail in the court system. Each player
has his own interest to watch. There is no single individual with a leadership role to gear the system to
produce corporate results. The Judge does no more than referee, the lawyer does no more than watch the
interest of his client, the prosecutor does no more than present the facts, the clerk does no more than
process the papers.
There is no one with the corporate objective of setting targets for delivery and ensuring that all
players are focused on the delivery. The constitutional provision that there should be –
(a) a fair hearing by an independent and impartial tribunal within a reasonable time;
(b) no discrimination;
(c) equality before the law;
(d) justice according to law
(e) etc.
while being inspirational rhetoric is barely translated in the system.
Who should lead? The Judge, the Court Manager? On account of the people involved, the need
for grass-roots campaigns 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 professionals themselves. As one researcher put it:
“In most instances, not only is there no general desire to change but there is a systemic
tendency to retain the status quo …” – Raymond T. Nimmer quoted by Malcolm M. Feely, ibid.
It is important to involve the professionals in the dynamics of change. Take on board -
(a)
(b)
(c)
(d)
(e)
the Judges individually or through the Head of the Judiciary;
the Professions individually and through the Bar, the Law Society;
the Para-legals individually and through their Unions or Associations;
the Court Users through Ad Hoc or established NGOs;
the written and the spoken Press.
At the end of this set of lectures, course students should be able –
(e) to identify where the daily practice of the courts contradict the provisions of the constitutional
guarantees of the citizens;
(f) to set out a number of actions they may take to render rhetoric into reality
(g) to develop appropriate projects with the professional organizations for the improvement of the
court service to the community;
(h) to suitable grass-roots campaigns for the purpose in a pro-active manner.
(i) make proposals for better court service to the community and scrubbing the system;
This is an inter-active sessions where the various participants state how they go about their daily,
weekly or monthly routines in the specific areas set out below. Discussions will take place as to the relative
merits and demerits of the various techniques and methods.
9.
DEALING WITH NORMAL WORKLOADS
FORMALS – CRIMINAL AND CIVIL
CONTRAVENTIONS
DOMESTIC VIOLENCE
SMALL CLAIMS
At the end of the session, course participants will be able –
(a) to share the experience with others on common denominators;
(b) to identify the differences and evaluate the merits and demerits as applicable to their
courts;
(c) to develop a realistic project in a short-term and long-term court office modernization
programme for their individual courts.
LECTURE 5: OCTOBER 20
This set of lectures are designed to define the legal frame-work within which the courts work and
identify the areas which hinder modernization.
10.
LEGAL FRAMEWORK FOR COURT ADMINISTRATION
THE CONSTITUTION
THE RELEVANT SECTIONS OF THE COURTS ACT
THE RELEVANT SECTIONS OF THE CRIMINAL AND CIVIL CODES
THE RULES OF COURT
OTHER STATUTES
11.
CHAMBER CASES
LECTURE 6: OCTOBER 27
12.
RESOLVING OFFICE BOTTLENECKS IN COURT ADMINISTRATION
THRIVING ON CHAOS
COMMON SENSE APPROACH TO COURT ADMINISYRATRION
SCHEDULE OF WORKS
TIMELINESS AND PUNCTUALITY
LECTURE 7: NOVEMBER 3
13.
DEALING WITH WITNESSES
Protection
Special Attention as regards children, women etc
14.
THE FUNDAMENTAL FREEDOMS ESPECIALLY RIGHT TO FREEDOM
Bail
At the end of these lectures, the course participants should be able –
(a)
(b)
(c)
to identify areas where law reform is required for proposals to the Law
Reform Commission;
to suggest the text and the manner in which the reforms should be carried
out; and
make any recommendation cognate or incidental to the above.
LECTURE 8: NOVEMBER 10
This set of lectures are designed to locate those areas which need to be specially addressed so
that the image of independent and impartial justice may be enhanced.
It will deal with –
15.
THE APPLICATION OF THE PRINCIPLE IN COURT ADMINSITRATION THAT
“JUSTICE SHOULD NOT ONLY BE DONE BUT BE SEEN TO BE DONE.”
THE PRINCIPLE IN RELATION
(A) TO COURT CASES
(B) EXTRA JUDICIAL MATTERS
(C) ASSISTING IN THE PRESERVATION OF LAW AND ORDER
(D) THE APPLICATION OF THE RULE OF LAW AND HUMAN RIGHTS
(E) THE OPEN AND PUBLIC HEARING
(F) DEALING WITH THE MEDIA
At the end of this session, course participants should be able (a) set out guidelines for themselves and the staff for their day-to-day activities and
conduct;
(b) develop methods and systems in the court system whereby the principle may be
observed;
(c) identify niches where integrity system within the judiciary is compromised and
(d) provide for the enhancement of the court image generally.
(e)
LECTURE 9: NOVEMBER 17
This set of lectures deal with the periodical measures that may be taken to improve the institution
as a whole. They will deal with 16.
PLANNING
LONG-TERM AND SHORT-TERM PROJECTS
BUDGETING
GETTING THE AUTHORITIES TO HEAR
These are interactive sessions intended to identify the problems that occur in designing a project
for general infrastructural up-grade.
At the end of these sessions, the course participants will be able to present model for –
(a)
(b)
(c)
(d)
(e)
short-term and long-term plans for their courts;
short-term and long-term court projects;
budgeting for the requirements;
presentation to the powers that be;
carrying them through to completion.
LECTURE 10: NOVEMBER 24
This set of lectures deal with the periodical measures that may be taken to improve the office and general
look of the court as such. They will deal with 17.
OTHER PERIODICAL COURT DUTIES
DESTRUCTION OF OLD FILES
DEALING AND RETURN OF EXHIBITS
COURT YARD
COURT EQUIPMENT AND INFRASTRUCTURAL FACILITIES
18.
COURT SECURITY
Once again, these are interactive sessions intended to identify the laws and the authorities that
provide for them.
At the end of these sessions, the course participants will be able to present model for –
(f) short-term and long-term plans for handling those periodical duties;
(g) short-term and long-term court projects for the destruction, preservation and retrieval
of files;
(h) budgeting for the requirements;
(i) presentation of the projects to the powers that be; and
(j) carrying them through to completion.
LECTURE 11: DECEMBER 1
This is a one-off lecture on the proposed Code of Conduct for Court Officers.
19.
CODE OF CONDUCT
Introduction
Performance of Duties
Confidentiality
Integrity
Propriety
Conflict of Interest
At the end of the session, court participants should be able –
(a) to identify situations in each and every section dealing with the above where problem areas will
occur and how to resolve them;
(b) to propose solutions as and when they occur.
LECTURE 12: DECEMBER 8
These are confidence building lectures with the participation of the class to register their complaints
and see how to deal with them in a modern system of court administration. They deal with 20.
CONDITIONS OF WORK AND SERVICE
AN ENVIRONMENT WHICH IS CONDUCIVE TO A MODERN COURT ORGANIZATION AND
IMPROVEMENT OF SERVICE
MAKING A REPORT TO THE PAY RESEARCH BUREAU
At the end of the session, course participants should be able (a) to realize the constraints of the Pay Research Bureau; and
(b) to make realistic proposals for the consideration of the Pay Research Bureau; and
(c) to persuade them for implementation.
LECTURE 13: DECEMBER 15
These lectures are designed to identify the office factors that dynamize change: state of the art
tools and equipment, generated court automation, motivated staff, staff ownership of reform projects. They
discuss 21.
STATE OF THE ART TOOLS AND EQUIPMENT
22.
STATE OF THE ART TECHNOLOGY, DIGITAL RECORDING AND ELECTRONIC COURT
23.
COMPUTER-AIDED PROCESSING OF OVERALL COURT ACTIVITIES: IDENTIFY DATA
ELEMENTS FOR A PURPOSEFUL ADMINSITRATION
23.
INNOVATIVE IDEAS IN THE ADMINISTRATION OF THE COURTS
24.
STAFF INVOLVEMENT IN PROJECT INITIATION, OWNERSHIP AND LEGACY
At the end of the session, course participants should be able –
(a) to list a set of modern tools and equipments required to enable the courts to fulfill their
set objectives;
(b) to draw up a list of motivations and incentives that would bring about the dynamics of
change;
(c) to select the range of data needed with respect to each administrative function and
how these would serve the reform process;
(d) to set out the type and nature of staff involvement for the purposes of staff ownership
of reforms;
(e) to write an innovative project for the court system or any section of the system in
Mauritius
LECTURES 13 & 15: REVISION FOR EXAMINATIONS
15 CONTACT SESSIONS X 3 HOURS = 45 CONTACT HOURS
UNIVERSITY OF MAURITIUS
PRINCIPLES OF JUDICIAL ADMINISTRATION
IN ITS CONSTITUTIONAL CONTEXT
“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.” Benedict S. Alpen & Lawrence T. Nichols, Beyond the Court
Room, Canada,USA, Lexington Books, 1982.
2.1.
THE SEPARATION OF POWERS
The doctrine of Separation of Powers was formulated in the mid-eighteenth century by
the French jurist Montesquieu who posited that for a state to function properly, power within it
should be so distributed as to contain inherent checks and balances. He identified three distinct
powers of government: the Legislature, the Judicature and the Executive.
The legislative arm of a State should do no more and no less than formulate laws for the
State to function properly. It should be unconcerned with matters of authoritative interpretations
and application.
The Judicature should be the interpretative arm of a State, and as such should be the
authoritative source of interpretation of the law; it should be unconcerned with the enactment of
legislations. Hence, if a dispute arose between an individual and another individual or between an
individual and the State, the matter should be resolved by the Judiciary.
Finally, the executive should be the arm of the State empowered to devise ways and
means of carrying out the policy of government and it should run government affairs as per the
law and the interpretation given to it by the Courts.
The argument is that the interests of the citizen in a democracy would be best
safeguarded if these three powers were in the hands of different offices or organs. Since ‘power
corrupts and absolute power corrupts absolutely’ no one office or organ of the State should be
vested with more than one of the three powers of government.
In most of the Commonwealth Constitutions and the Constitutions of Western liberal
democracies, this doctrine forms the basis of the political organization. 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 United States of America, the doctrine seems to be more real than in England
where there is a perception that there has never been a ‘sharing out’ of power in the strictest
sense of the doctrine. Many examples are taken to show how the powers overlap. For example
as Bagehot observed:
“The efficient secret of the working of the British constitution is the nearly
complete fusion of the legislative and executive powers.”
Professor Garner concludes:
“To attempt to separate the powers of government is today futile and almost
certainly undesirable; it should be recognized that in some measure the administration of
the modern state must exercise all three traditional powers, and that there is a
specialization rather than a separation of powers.”
The fact of the matter is that the doctrine is much more an ideal to work for, a culture to
inculcate in the day to day functioning of the State. In many States, where the Constitution
enshrines the Separation of Powers, the reality at the grass-roots gives a very torrid picture. On
the other hand, in the absence of even a written Constitution advocating the Separation of
Powers, the culture is so well ingrained in the body politic that the State institutions function with a
dedication to the doctrine of the Separation of Powers as though it was cast in stone.
One vital sine qua non of the Separation of Powers, as important as Parliamentary
sovereignty is the independence of the Judiciary. This is one most important aspect of a
democratic society: judges who are called upon to decide upon the legality of acts of government
and their agents should, of necessity, be wholly independent of the Executive so that they may be
altogether free in taking any decision according to law, without fear of reprisal or expectation of
favours. They should not, nor perceived to be, simply upholding the actions of the government of
the day even if those actions were not according to the law of the land.
2.2.
PARLIAMENTARY SOVEREIGNTY
It is a fundamental principle of legislative power in a democratic state that Parliament is
supreme. No other power can restrict or control its legislative power. This stands true even as
regards its procedure and such sanctions as may be imposed on its members.
This does mean that Parliament may, controlled as it is by the Executive, effectively
abolish all the Courts. However, whether it would in actual fact do it or not is a matter of
conjecture. Likewise, it is possible that the Courts may pronounce in an appropriate case come
before it that a particular parliament was unlawfully constituted. However, such head-on
institutional collisions have rarely occurred in this day and age owing to the mutual respect that
Parliament and the Courts owe to each other.
For the above reasons, judges avoid treading on the toes of the Legislature as much as
the Legislature does so. However, this does not mean that Parliament may not by statute restrict
the role of the courts in any particular matter, such as mandatory imprisonment in sentencing
options. Similarly, Courts may render provisions ousting the jurisdictions of the Courts nugatory:
see Anisminic v Foreign Compensation Commission (1969) 2 AC 147.
One difference between the doctrine of Parliamentary sovereignty as obtains in the
British Constitution and the Mauritian Constitution may be noted. In the Mauritian Constitution,
there is a specific provision, section 45, to the effect that –
“Subject to this Constitution, Parliament may make laws for the peace, order and
good government of Mauritius.”
From this point of view, it is arguable that the Mauritian Parliament is sovereign in the
limitless sense in which the British Parliament is. However, even in the British Constitution, it is
arguable that Parliament is limitless in its sovereignty. As Wade puts it:
“Even under the British system of undiluted sovereignty, the last word on any
question of law rests with the Courts.”
The effect of this check and balance between Parliamentary Sovereignty and the
Independence of the Courts, therefore, is that when Parliament passes a law which is questioned
before the Courts, the Court determines what the law actually is. In the context of administrative
law, this would happen where an Act of Parliament creates a new administrative authority to
which it delegates or confers certain powers. In such a case, whereas it would not be the
business of the courts to question the policy of government, yet it would be the Court’s business
to ensure that actions of the State or State agencies are performed within the parameters of the
Rule of Law.
2.3.
THE RULE OF LAW
Westminster Model Constitutions, which the Commonwealth countries have inherited, are
founded upon the concept of the rule of law. At its most simple this means that everybody must
act within the confines of the law. Misinterpreted, this may lead to dangerous pitfalls. An example
that is often brought home is that of Germany during the forties. Everything that the State did
under Hitler was under the law.
When applied in the context of administrative law, however, the rule of law means that :
‘… every government authority which does some act must be able to justify its
action as authorized by law – and in nearly every case this will mean authorized by Act of
Parliament.”
The courts would be concerned with ensuring that the Executive has complied with the
enabling Act of Parliament in the manner in which it intended.
We read how there grew a lot of uneasiness at first against the parliamentary practice of
delegated legislation in English legal history and the criticism of Lord Hewart, the then Lord Chief
Justice of England, who referred to such practice as unhealthy in his work entitled: “The New
Despotism.”
The Committee which had been set up to review the system had spoken in favour, inter
alia, of placing of some safeguards such as:
(a) the removal of ‘ouster clauses’;
(b) the delimitation of any discretion given to the delegated power.
The Courts are likely to view the exercise of executive action from that point of view under the
Rule of Law. Thus, if an Act empowers an authority to make an award after following a specific
procedure and the authority makes an award without following the prescribed procedure, then the
Courts are likely to decide that the decision-making body has exceeded the powers powers laid
down by the statute. In such a case, anyone with ‘sufficient interest’ can apply for judicial review
requesting an order of certiorari to quash the decision.
It is also open to the Courts to construe the existence of implied limits on the exercise of
executive power. The courts will, accordingly, ‘read in’ certain limitations upon an authority’s
statutory powers. For example, it must not act unfairly, it must not act unreasonably. If on an
application for judicial review the courts are satisfied that one of these implied limits has been
exceeded then again the result will be that the administrative body will he held to have acted ultra
vires, and its decision may be quashed.
Parliament, in the exercise of its sovereignty, may have placed express limits on the power of
the administrative authority. Some of these will be mandatory, breach of which always results in
action being declared to be ultra vires. Other express limits are regarded as merely directory,
and failure to comply precisely will not usually invalidate the administrative action.
Where an authority is found, upon an application for judicial review, to have acted ultra vires,
the act in question will be void.
Conversely, if a body acts ‘intra vires’ that is, within the limits of the power it has been given
in its enabling stature, its actions will be immune from review by the courts. The only exceptions
to this rules are ‘errors of law on the face of the record.’
Lord Pearce in the Anisminic Case gave a clear explanation of this whole area:
“lack of jurisdiction may arise in many ways. There may be an absence of those
formalities or things which are conditions precedent to the tribunal having only jurisdiction to
embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction
to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may
depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take
into account matters which it was not directed take into account. Thereby it would step
outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and
fail to make the inquiry which Parliament did direct. Any of these things would cause its
decision to be a nullity.”
For a powerful philosophical justification of the doctrine of the rule of law, one may read F. A.
Hayek, “The Road to Serfdom” (1944) who states:
‘… stripped of all its technicalities this means that government in all its actions is
bound by rules fixed and announced beforehand – 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.”
Pursglove, in his textbook on Administrative Law, gives a modern example to illustrate
the force of Hayek’s statement and the institutional need for exercising legal control over use of
executive discretion. He cites the case of Congreve v Home Office (1975) QB 629 as typical and
instructive.
The facts of Congreve were: that under The Wireless Telegraphy Act 1949 the Home
Secretary was vested with the power to revoke or vary a television licence. Until 31 March 1975,
the fee for a colour television licence was £12 for twelve months. From 1 April 1975, it was
increased to £18. Some viewers whose licences expired after 31 March had the brilliant idea of
taking out new licences before that date, thus paying only £12 hoping to avoid paying the
increased £ 18. The Home office required these people to pay the extra £6. When they declined
to do so, the Home Secretary revoked the licences of those who did not. They protested before
the Parliamentary Commissioner for Administration who strongly condemned this action.
However, he added that he could not criticize the Home Secretary who stated he had acted on
legal advice obtained.
The legal issue was whether the Home Secretary had the power to revoke the licences of
those who had refused inasmuch as his discretion to revoke was unfettered.
The Court of Appeal held that the revocation was invalid. Lord Denning MR said:
“The licence was granted for 12 months and could not be revoked simply
to enable the Minister to raise more money. Want of money was no reason for
revoking a licence…”
He went on to comment that the failure to foresee that the rise in the licence fee would be
foreseen by conscientious citizens, was a bureaucratic failure. The Home Office sought to make
good the failure by acting in a plainly unfair manner and claiming that their discretion so to do was
unfettered.
Two incidences of the application of the Rule of Law are: the concept of secularism and
the doctrine of ultra vires.
2.4.
SECULARISM
Most constitutions, with a few exceptions, provide for the dissociation between the
political state and religious faith. Whereas their Bills of Rights enshrine the freedom of
conscience, they do not subject politics to religion as used to be the case in the middle ages in
Europe when the Church and the State were regarded as indivisible. Experience in these
countries showed that such a immixation became the hot-bed for innumerable devastating
conflicts.
In most Commonwealth countries, accordingly, the Constitutions while providing for the
freedom of religious practice, actually divorce religion from politics. They are secular, in this
sense, secular constitutions. Secularism is understood in section 2 of the Mauritian Constitution
which provides:
“This Constitution is the supreme law of Mauritius and if any other law is
inconsistent with this Constitution, that other law shall, to the extent of the
inconsistency, be void.”
On the other hand, section 11 allows for the freedom of conscience. It provides:
“Except with his own consent, no person shall be hindered in the
enjoyment of his freedom of conscience, and for the purposes of this section, that
freedom includes freedom of thought and of religion or belief …”
This does mean that in conflicts arising between different religions, beliefs or faiths,
whether between factions within the same community or between different communities within the
same state, resort should be had to the rule of law: what the law provides.
2.5.
ULTRA VIRES or « ABUS DE POUVOIR »
The doctrine of the rule of law does mean that whereas the legislative power of Parliament
will be recognized, the courts would still be able, within the limits allowed by the law, to control
administrative action through the concept of ultra vires or “abuse of power.” It is borrowed from
French “droit administrative,” where the concepts of “vice de procedure” and “abus de pouvoir”
are fairly well developed.
Thus, the courts may imply limits on the power of the administrative authority. These include
the following 2.6.
unreasonableness
acting on irrelevant considerations
failing to take into account relevant considerations
acting on no evidence
acting for an ulterior purpose
acting in bad faith
acting unfairly.
REMEDIES IN ADMINISTRATIVE LAW
A case in administrative law proceeds by two stages: the Leave Stage and the Merits
Stage. An applicant in this area of the law should have a locus standi to bring a case before the
Courts. This is designed to prevent busy bodies from seeking academic decisions. An individual,
accordingly, with ‘sufficient interest’ can apply, in England, to the Divisional Court of the High
Court for judicial review of an executive decision which he views is ultra vires. The remedies
available include the private law remedies of damages, injunction and declaration; and the public
law remedies, in the form of prerogative orders; mandamus, prohibition and certiorari.
A number of distinguishing features should be noted in its remedial component. First, its
end purpose is to ensure that public bodies act within the law and not to compensate as such the
individual for prejudice caused to him as in the case of tort: Dunlop v Woollahra Municipal Council
(1981) 2 WLR 693.
Second, courts are only concerned with the legality of a decision, not with its merits. The
court is not there to substitute its own value judgments for those of the inferior body. It is not the
purpose of the Courts to supplant government by the Executive by Government by Judges.
Third, judicial review is to be distinguished from an appeal. In an appeal, the decision
taken by the inferior jurisdiction may be reversed. In a judicial review, it may be quashed and
remitted to the inferior body to take again according to law.
Fourth, prompt action is essential for success in an administrative action. Administrative
law provides for the vigilant and would ignore the indolent.
2.7. THE NEW CHALLENGES OF THE SEPARATION OF POWERS
That Parliament is sovereign in its legislative function, the Executive holds exclusive
power to formulate and execute policies of government and the Courts are independent in their
interpretation of the law assume they know and respect their demarcation lines and mutually
respect it in both theory and practice. They also assume that in themselves the three arms of
government do not do anything except live and die by the institutional objective for which they are
established.
The reality may well be different. Parliament may not live and die for the people for which
it is supposed to act. It may, in the hands of some, turn out to be a handy machinery to legislate
for certain vested political, party, group or even individual interest. The Executive may, for its
part, instead of acting fairly and independently, do just the bidding of the tyrannical majority in
Parliament. Likewise, the Judiciary may end up living just for itself, the professions (the Bench
and the Bar), blissfully unconcerned with what happens to the actual delivery of justice to the
community.
The complexity of running present-day government affairs has not helped but only tensed
up the doctrine. In a world of a myriad of conflicting and opposing interests, from the economic to
the personal, the cultural to the scientific, the secular to the non secular, considerations of the
state and rights of the citizen, the will of the majority and the protection of the minority, decisions
have to be taken at various levels and speedily. While too dogmatic an approach or application of
this doctrine risks isolating State institutions and rendering State activity sluggish or paralytic,
there is an obvious danger in a compromise of this doctrine. Accordingly, so that the three arms
of the State might effectively contribute and enable government to function and deliver, a proactive attitude is desirable, with all fundamentals intact. A reactive attitude, its is thought, will lead
to head-on constitutional collisions and end up spelling the death of the fundamentals themselves
and the doctrine.
Accordingly, there is a need to steer public affairs in such a way that they work for the
general good. This assumes a great importance with the new era that with recent events in world
history such as decolonization, developments in regional economic and political groupings of
states, growth of international human rights instruments etc., international institutions and
organizations.
It is in the light of such new challenges that we have to examine the doctrine of
separation of powers.
2.8.
PARLIAMENTARY SUPREMACY
One would be quick to note that even the British doctrine of Parliamentary supremacy
has not been without attack lately. Lord Scarman in his work, English Law: The New Dimension,
1974, p 15, has made the following comment:
“It 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. Means therefore have to be
found whereby (1) there is incorporated into English law a declaration of such
rights, (2) 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.”
In fact, Barker, E, in “The Principles of Social and Political Theory, 1951, p. 202,
challenges the traditional view of parliamentary sovereignty. Parliament was in theory meant to
pass just laws but what they do is pass laws, unconcerned with whether they are just or not.
“The supreme sovereign which stands in the background of any politically
organized community is justice: justice 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.”
Nazi Germany and apartheid South Africa are just two examples of unjust laws passed
by Parliament which the Courts could not question. As regards Parliamentary sovereignty, the
United States came up with a formula for a modern democracy.
“You must first enable the government to control the governed; and in
the next place oblige it to control itself.”
The Founding Fathers’ formula was to first draw up an entrenched Bill of Rights, then
enact for a democratically elected Parliament whose powers could only be limited by the Bill of
Rights, and which powers were justiciable and enforced by a constitutional system of courts with
power to review all legislative and executive acts under the provisions of the Bill of Rights.
The prevailing view today, therefore, is that every democratic nation owes a solemn
obligation to its Judiciary to curb parliament’s powers and to adopt a written bill of rights beyond
the reach of the legislature or executive.
2.9.
THE EXECUTIVE
Traditionally, the Executive was regarded as the institution that became the depository
and the repository of the assets of the state. The Head of State, the Cabinet, the Civil Service
analyzed the needs of the people and the country as a whole and developed policies for peace
and good government along principles of “good governance.” However, the reality is that with
Head of State being no more than a choice of the political party in power, 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 assumption that the Executive works for the general good stands
discredited.
In the Westminster Model Constitution, the Civil Service is supposed to be impartial and
independent. While there may be no doubt of the fact that it tries to be, the political head in the
Executive may very well engineer the civil service to do no more than its bidding and some civil
servants too ready to oblige for reason of personal interests.
There can be no doubt, accordingly that there is a need for a judicious approach in the
promotion of the doctrine of separation of powers, a lot tensed up in today’s public affairs. This
holds true for every individual engaged in the public affairs, no matter whether he is a politician, a
civil servant or a Judge.
2.10.
THE JUDICATURE
For the Courts, the responsibility is higher inasmuch as he is an artist of the last resort.
Judicial work is not synonymous with legal work. It goes well beyond law. A Court is, far from
being just a Court of law, a Court of Justice. There is a difference between what the law is and
does; and what justice is and does.
The tool of the trade of the Judiciary is the word. With words, he can create a number of
worlds, not necessarily conflicting. The Judge in his profession finds himself interpreting
‘democracy’, ‘the rule of law,’ ‘government,’ ‘human rights,’ ‘equal rights and opportunities,’ and
thereby creating an enhanced order in universal human justice with every word he interprets.
Justice is not a technicality, a mere static interpretation of man-made rules. It is a dynamic
discipline. He looks at what law does to human beings in concreto when other disciplines look at
what happens to human being in abstracto. Justice is, to such a Judge, what justice does to the
human being.
2.11.
THE LIFE OF THE LAW
A Court does not operate in vacuo. One does not look at cold, stark reason, calculated
logic or formulae in deciding the justice of a case. “The life of law is not logic but life itself,” stated
Lord Denning. The ultimate test is the test of the human in the law and not the law in the human.
It is in this sense that common law speaks of the justice of the case. Thus, in its pursuit of the
justice of the case, a Court will find itself facing a choice between options. One option is that of a
honourable exit. The other is that of a responsible exit. A honourable exit would be where the
Court would simply say: “I am bound by the law, by precedents, by procedure to say that however
much I feel for the plaintiff, I cannot do much as a Court of Law.” A responsible exit is where the
Court says: “Independence is what independence means: law, precedents and procedures are
but means to an end not an end in themselves, to assist a Court of Justice. Let me see how the
justice of the case would be satisfied under the law.” That involves, according to own Law of
Interpretations, a constructive and purposive approach.
In all systems of law, decision makers interpret law in life, to improve living conditions of
human beings. Examples abound in the history of all systems of law. Two of which come to the
mind immediately are: Donoghue v Stevenson in the common law system and l’Arret Jand’heur
in the French system.
2.12.
COURTS’ JUDICIOUS APPROACH TO THE DOCTRINE OF SEPARATION OF
POWERS
In the interpretation of the law, the Court also becomes to a certain extent, a policy
maker. But its policy is limited to the strict confines of the law of interpretation of statutes. It does
so without violating the fundamentals within which the 3 arms of Government function, as in the 2
cases of the thirties which had an impact in society in general.
In fact, at I (1), the Latimer Guidelines state:
“Judges may be constructive and purposive in the interpretation of legislation, but
must not usurp parliament's legislative function.”
The ability of judges to display activism or restraint in the way they decide cases depends
upon his ability to use the tool of language. No word has a proper or absolute meaning. True it is
that there is are strict rules of interpretations. However, that does not stop language from being
evolutive and judges from being constructive where the law has become too rigorous. For
example, the invention of Equity and Trusts in English law is a typical example of how judges
sought to re-invent as it were the justice system. There are other fictions law has created in its
science of interpretation.
One is the fiction of “intention of the legislature.” In interpreting a statute to a particular
situation, Courts are intent upon discovering the ‘intention of Parliament’. This is done by
interpreting the meaning of the words used in the appropriate statute. Thus, judges become
creative when they give generous or restrictive meaning to words in a statute depending upon
what they would like the outcome to be for the justice of the case. That is why it is said that
Parliament only ‘legislates against a background of judge-made rules of interpretation’. In an age
of democratic pursuits, it is fair to say that judges are entitled to presume that when conferring
power on any particular person or body, Parliament did not intend creating mini-autocracies or
mini-kleptocracies but mini-democracies everywhere. It is this attitude which has opened the way
for ‘judicial activism’.
Judicial activism has not been without provoking diverse academic and political
controversies. On the one hand, some align with Professor J A G Griffith, who, in his book “The
Politics of the Judiciary.”
Professor Griffith adopts a Marxist analysis.
He sees government (especially
Conservative government) and the Judiciary as upholding the rule of capitalist economic forces.
He quotes with approval the phrase:
“… the rule of law is only another mask for the rule of class.”
He goes on to say:
“… Padfield, Tameside, Laker… represent the judicial desire not so much to
control arbitrariness as to protect the individual against political policies which are seen
by the Judiciary to be contrary to the public interest…”
He adds:
“…all these judicial decisions strike down political decisions taken during the
period of Labour Governments… ministerial decisions which Conservative Ministers
might not have taken.”
On the other hand, Professor HW R Wade in his Hamlyn Lecture of 1980 would offer a
diametrically opposite view and of Constitutional Fundamentals.:
“…the important thing is that the courts once again accept (post Ridge v Baldwin)
… that part of their duty was to require public authorities to respect certain basic rules of
fairness in exercising power over the citizen…”
2.12.
COMMONWEALTH COURTS
In the Commonwealth jurisdictions, the variety obtaining between judicial activism and
judicial restraint is as diverse as the number of countries which it represents. On one extreme,
one may see the Indian Judiciary which has shown courageous “avant-gardisme.” On the other,
some of the small states such as Mauritius, Seychelles, Malta have refrained from pushing the
limits far.
2.13.
THE JUDICIARY’S DISCRETION
It is worthy of note that the Judiciary is the institution of the State which has presumably
the largest amount of discretion. It is a discretion accountable to itself. Dworkin has well
expressed it:
“Judicial decisions are political decisions, at least in the broad sense that attracts
the doctrine of political responsibility.”1
Justice Bhagwati as Chief Justice of India, addressed the British Institute of International
Law in the following words:
“….., the judiciary is called upon to interpret the Constitution and the law and I may tell
you from my experience that this function of interpretation is a highly creative function. It
is therefore to my mind that a Judge must be in tune with social needs of the requirement
and be above all a judicial statesman. Law does not operate in a vacuum. It is intended to
have a social purpose and an economic mission and a truly great Judge must always,
while interpreting the law, keep constantly in mind the hopes and aspirations of the
people and the needs and requirements of the society.” 2
This is the discretion we should be concerned with. The Bangalore Principles has put it
succinctly: namely,
“(J)udges and lawyers have a special contribution to make in administration of
justice in fostering universal respect for fundamental human rights and freedoms.”
Just three examples would suffice to illustrate the manner in which judicial discretionary
interpretation of words may be used to open new worlds. They are: ‘democracy’, ‘the rule of law,’
and ‘human rights.’ They are from a myriad of other terms and phrases such as ‘honest
government,’ ‘democratic processes and institutions’ which law often uses and but leaves it to
the intellectual muscle of the Judge to develop and make happen as a reality in human society.
2.14.
THE LATIMER HOUSE GUIDELINES
The need of a Commonwealth Approach to the doctrine of separation of powers was felt
so seriously that lawyers, judges and parliamentarians sat down to write their own Guidelines at
the Latimer House, Marlborough House, London. They are, at present, no more than a draft
instrument formulated as a follow-up after the early CHOGMs decided that there should be some
follow-up action on the Harare Declaration of 1991. It had been 20 years earlier that certain
fundamental principles of the Commonwealth had been laid down in Singapore by the Singapore
Declaration of 1971. However, as time passed, the distance between the dream and the
destination looked never so great. The Harare declaration, accordingly, took up those principles
as a stark reminder of the Singapore Declaration and re-affirmed the principles therein laid out.
What were they? Democracy, democratic processes and institutions, the rule of law and
the independence of the judiciary, just and honest government, fundamental human rights,
equality for women, provision of universal access to education, continuing action to bring about
the end of apartheid in South Africa, the promotion of sustainable development and alleviation of
poverty, extending the benefits of development within a framework of respect for human rights,
the protection of the environment, action to combat drug trafficking and abuse, and
communicable diseases, held for small Commonwealth states, and support of the UN and other
1.
2.
Taking Tights Seriously, 1978.
Commonwealth Law Bulletin, Vol. 13, No I, p. 237.
international institutions. Much of the story of the Commonwealth since 1991 has revolved around
the implementation of the Harare Declaration.
The objective is the giving of democratic credential to any government of the
Commonwealth. Thus, the then regime in South Africa, Pakistan, Nigeria, Zimbabwe, to name but
a couple, may be regarded as some of the extreme situations which the Commonwealth
community wanted to avert. The focus of the Commonwealth was on the obvious and the overt.
That included condemnation of military regimes. In fact, that was a wrong approach inasmuch as
some civilian regimes were worse than the military regimes in their abuse of human rights and
their exploitation of the people and national assets. But the concept of sovereignty of Parliament,
a democratically elected government and the power of the executive, including subtle subjugation
of the Judiciary proved as erosive of democracy as the institution of military regimes, with the only
difference that one was overt and the other covert.
It is, by and large, the end of the Cold War which brought the flood-lights on the subtler
autocracies and the kleptocracies. It was found that democracy was much more than fair and
free elections but a matter of bringing about a culture. The Latimer House Guidelines seem to be,
therefore, an attempt to inculcate that culture within civilian regimes, the new Commonwealth
initiative. Even if most of the basic principles of democracy existed in social culture of the people,
the disparity was between that primeval, ethnic or root culture of the people and the political
culture that came about with the advent of “colonialism which led to the invention of systems of
autocratic power.”
Thus, there will always be some who would believe that:
“…the courts have made a stand against flowing Acts of Parliament to create
pockets of uncontrollable power in violation of the rule.”
Others, like Professor Griffith would argue that it is not the proper role of the Judiciary to
create new law by replacing their own policies for those of the elected Ministers.
George Winterton (LQR Vol 97, 1981) says:
“… the fundamental criticism of Wade’s general approach to government is that
he seeks to raise the non-elected judiciary above the elected legislature; it is
undemocratic.”
Professor Wade would argue that far from creating new law the Judiciary is only visiting
their constitutional position as guardians of the rule of law. The controversy continues. What
exactly is the modern meaning of ‘democracy?’ Should Parliament be able to confer absolute and
unfettered discretion on administrative authorities? Are the courts, as Professor Wade puts it,
mere mechanical devices for doing the bidding of Parliament? Or are they to re-discover in their
role “a deeper constitutional logic than the crude absolute of statutory omnipotence?”
As has been stated recently in “Parliamentary Supremacy and Judicial Independence, A
Commonwealth Approach,” by Pierre Olivier Jj, at p. 55:
“It is trite that the American, Canadian and European models of government,
limited by a human rights regime and enforced by an independent judiciary, serve the
interests of society better than any other system.”
He adds:
“Such models guarantee the most cherished and valuable of all rights viz. the
fundamental rights of people. By protecting the rights of all equally and equitably, they
ensure a large measure of peace and tranquility amongst individuals and groups,
including minority and ethnic groups.”
2.15.
JUDICIAL ADMINISTRATION
From the above, it is fairly obvious that the principles applicable to judicial administration
are particular to the Judiciary. The objective is to give administrative support to the national
justice system, with due regard to the separation of powers and the rule of law.
2.16.
POLICY COMMITMENT
Court Personnel, accordingly, have a responsibility to adopt a Court Policy Commitment
for fulfilling that role and in the process modernizing the justice system by the adoption of tools
and techniques, state of the art technology and apply the sciences necessary to live up to the
expectations of a democratic state.
The problem this raises in court administration are two:
(a) Who decides what has to be done?
(b) Who foots the bill?
If management is left to judicial officers, it is believed that we shall end up with a double
suicide: we shall have mediocre managers as well as mediocre judicial officers inasmuch as both
are specialist jobs. If it is left to the Executive, they will be perceived as having an executive
agenda not consistent with the role of the independence of the judiciary.
A salutary compromise concept has been mooted, therefore. Administration of the courts
shall be the concern of the Executive but under the leadership of the courts. In this way both the
science of judging and the science of managing the process will be reconciled without hurting the
fundamental principles of any of the three arms of the State. The elected legislature will decide
the quality of the justice system it wants and pay for, the Executive shall implement the policies
and the Judiciary shall deliver justice according to law amidst more dynamic, innovative and proactive conditions. The court administrative officers should also develop a pro-active relationship
between the Executive branch of government to enable the Judiciary to play fully its constitutional
role within the State as a trustee and guardian of the rights of the citizens and not as a trustee
and the guardian of the image of only the Bench and the Bar.
Another particular feature of the court administration is that it should make clear
demarcation lines between purely administrative, quasi-administrative and judicial activities. The
principles of modern management demands that these functions be properly defined to avoid any
confusion of roles. Issuing summonses is an administrative matter where the process implies
sending them after they have been authorized. But the same process is quasi-judicial when
authority to issue is being delegated to an officer of the court. When the issue requires a
determination whether summons should issue or not, it is a judicial matter.
2.17
THE NEW CONCEPTS IN JUDICIAL ADMINISTRATION
Modern court management include the introduction of such concepts as demarcation of
responsibility between administrative matters, quasi-judicial matters and judicial matters. The
Court system does not exist for the Bench and the Bar but for the citizen. Accordingly, the
concept of court service to the community should be developed. Such sensitive matters as delay
and perception of delay should be resolved scientifically such as by the adoption of case
management, case-flow management, differentiated case management. It is not enough to make
judicial decisions available to the Bench and the Bar. Critical data that serve the cause of modern
management have to be identified and gathered for an intelligible and purpose use in the legal
and judicial system. The conclusions have to be published and systems have to be devised so
that corrective actions may be taken with the collaboration of the Powers That Be.
2.18
PRO-ACTIVE ROLE OF COURT ADMINISTRATORS
The modern court administrator is a key player in each and every aspect enumerated
above. He sets up his vision, his mission, his goals and his objectives after consulting his judicial
head. He drives the process no matter whether the issues relate to case flow, to delay reduction,
to the application of orders, the calling of formal and informal meetings with the players involved
or with members of the local community.
2.19
INDIGENIZATION OF CASE FLOW MANAGEMENT
It is the duty of the court administrators to attempt to take up all the issues with the
judicial officers of the Court with a view to creating the conditions proper for the formulation of a
proper system of judicial administration indigenous to the national judicial system, under the
leadership and control of the Judicial Officer.
2.20
PRIORITIZATION IN PROJECTS
The Court Administrator should be committed to making a SWOT analysis of his court,
imaginative in developing projects and prioritizing between them for progressive innovation and
improvements.
2.21
THE ISSUE OF DELAY AND THE ROLE OF THE PLAYERS IN THE MACHINERY
The problem of delay should demand his special attention. An exercise should be carried
out to identify the various reasons for delays. Thereafter, dynamic methods should be utilized not
only to resolve the problem of back-log but also to ensure a smooth disposition of cases as a
whole in the courts. The assistance of all the players in the machinery of justice should be
secured: such as the Attorney, the Barrister, the Prosecutor, the Court User will be sought
towards the search of a solution to the problem of delay and the smooth disposition of cases in
the courts.
There should be an avoidance for indiscriminate loading of cases of which the chances of
immediate disposal are remote. Only such cases should be fixed which are ready for trial.
Conversely, all cases of which the chances of disposal are remote should be considered with the
seriousness they deserve and efforts should be spent to expedite them as quickly as possible,
within a scheduled time frame. The hiccups concerning each category should be studied and
measures taken to resolve them.
2.22
DIFFERENTIATED CASE MANAGEMENT
There should be a system of Differentiated Case Management so that cases should be
fixed in terms of their likely duration: type, nature and disposability. In this regard, appropriate
tracks should be introduced along the principle of “courses for horses” such as Fast Track,
Normal Track, Complex Trials.
2.23
STRICT POLICY AGAINST POSTPONEMENTS
A strict policy against postponements should be adopted and sanctions imposed where
the postponements sought are unwarranted.
2.24
GUIDE-LINES AND TIME SCHEDULES
Guidelines and time schedules should be set for every critical activity in the court system.
These should be published and monitored. Regular meetings should be held to ensure that they
work properly. The staff should be made to own the decisions relating to the guide-lines and time
schedules so that they may work.
2.25
MEETINGS AND PERIODIC REVIEW
Meetings with all the players should be a regular feature in the Court Administration and
the methods used should be periodically reviewed and, where necessary, modified for corrective
or remedial actions.
2.26
INTELLIGIBLE USE OF STATISTICS
Simple Statistics should be gathered and used with a view to assessing daily progress or
regress, as the case may be, of the court in the day-to-day disposition of cases. Corrective
measures, where necessary, should be taken as soon as practically possible to restore
performance to set goals and objectives.
2.27
GREATER PROFESSIONALISM IN COURT ADMINSTRATION
Court Administration should be regarded and pursued as a specialized profession
demanding all modern techniques of sound management principles. Adequate exposure, local
and international, should be given to court administrators with proper certification for attendance
and participation and ultimate recognition in promotional and specialist development chances in
the career structure.
s.b.domah
Sept 2005.
---------------------------------ASSIGNMENTS
1.
Show how Montesquieu’s doctrine of Separation of Powers is of particular relevance in
the present day in judicial administration?
2.
The judiciary should assume sole responsibility for having been caught in a time warp
today. How far would be agree or disagree with this proposition?
3.
The Executive as well as the Legislature should play its proper role in a modern judicial
administration.
4.
Judicial activism is welcome. However, charity should begin at home. Discuss.
5.
Identify five major areas where the law should be changed so as to modernize judicial
administration in Mauritius.
6.
Identify five major areas where the court culture should be changed so as to bring
judicial administration in Mauritius in line with what obtains in emerged jurisdictions .
7.
Identify five major areas where the conditions of employment within the judicial system
should be changed so as to taken judicial administration in Mauritius into the new era.