Of Judicial Restraint & Separation of Powers

Why it is of utmost importance that judges should be seen to harbour no bias

We all have at the back of our minds a neat and simple picture of how government works. It consists of a Legislature that makes laws, an Executive, which puts them into effect and a Judiciary, which interprets the laws and applies them. The reality however does not quite conform to this simple picture. Most of the laws enacted in Parliament by parties that have a parliamentary majority are those devised by the Executive. Judges, on their part, shape up laws very often, gearing them into new directions or they simply declare them null and void for being incompatible with the Constitution. Inevitably there are numerous opportunities for conflict between various branches of government. But, in a mature democracy, conflicts are avoided by carefully crafting the position of each branch vis-à-vis the other in the context of the rule of law.

Two important cases heard before our Supreme Court illustrates the maturity of our democracy.

In 1973, the Leader of the MMM entered an application under section 83 of the Constitution challenging legislation enacted by Parliament to postpone the holding of elections. His counsel, Anerood Jugnauth, invited the full bench of the Supreme Court to probe into the motives of the government for passing the Act. The Full Bench declined the invitation. Ramphul Justice who delivered judgment on behalf of his brother judges Latour Adrien and Garrioch wrote: “We consider that the question whether or not Parliament had acted reasonably and in good faith is irrelevant. The court has to be satisfied that the alteration was made in accordance with the procedure laid down in the Constitution and that it is not inconsistent with the Constitution. In our view we cannot go beyond this and enquire as to the reasonableness of the Act or the motive behind the making of it… we consider it highly undesirable that the Court should be put in a position where it might feel tempted to express opinions on matters of a purely political character.”

In the case of Mahboob v The Government of Mauritius 1982 MR 35, a dispute arose between a citizen and an alien as to ownership of land. The Court ruled that the land belonged to the citizen. Parliament then passed a law decreeing that the alien had a valid title to the land. Garrioch held that “Parliament had no more right to pronounce judgments than the court had a right to make laws.” He concluded: “The action taken by Parliament, devoid of any general import, and interfering in a private dispute between two parties was not a law but a usurpation of judicial powers and therefore null and void.” The citizen remained the legal owner of the land. Parliament respected and bowed down to the wisdom of our judges.

In some countries, a conflict between Government and the Judiciary can go to the extremes. President Mugabe, for instance, did not hesitate to purge the judiciary of all judges, including its Chief Justice, who he regarded as being obstructive. When Dr Mahathir was President of Malaysia, he did not hesitate to have the Chief Justice removed from office. We are thankfully not in the same category in Mauritius. The Prime Minister has often expressed his commitment to the rule of law and has spoken on several occasions about the importance of an independent judiciary.

At the same time we cannot take for granted that no Judge or no politician will not cross the red line. So that when the Prime Minister reminds a judge of his duty of restraint, on a matter which has given rise to contention in political and media circles, it was the right and responsible thing to do. The Prime Minister was merely highlighting a fundamental rule of the Constitution that Judges should manifestly be seen to be impartial. There is no need to seek guidance from the French Professor Lambert in that respect. The Guidelines for Judicial conduct decreed by the then Chief Justice in December 2002 echo this important tenet about the propriety of a judge’s conduct at note 1.6: “A judge shall refrain from conduct such as membership of groups or organisations or participation in public discussions which in the mind of a reasonable, fair-minded and informed person might give rise to the appearance that the Judge is engaged in political activity.”

Moreover at note 4.6.: “A judge shall disqualify himself in any proceedings in which there is any perception of lack of impartiality.”

The purport of these two provisions is understood from the point of view of the reasonable, fair-minded and informed person irrespective of how strongly the Judge argues that the opinion that he had expressed publicly did not in any way impinge upon his impartiality. The test is an objective one to be decided from the perspective of the reasonable, fair-minded citizen.

Take, for instance, a white judge who associates himself with a group that has contempt for black persons. A reasonable, fair-minded and informed person will conclude that a black man is unlikely to obtain from that judge the same treatment that the latter would give to a white litigant. This objective perception of whether the judge is capable or not of seeing to it that justice will be done impartially is critical in the public eye. If a judge expresses a strong view against a legislation that legalizes abortion in specific cases, would the selfsame judge be qualified objectively to state the conditions to be met in cases of abortion for him to be satisfied with the same? The mere perception of bias disqualifies him from pronouncing his judgement in the case, no matter if he argued that his comments were well intentioned.

* Published in print edition on 2 August  2013