The procedure adopted for the appointment of Senior Counsel (SC) and Senior Attorney (SA) in Mauritius is a historical oddity which remains alien to the legal profession and the public at large. Pursuant to section 9A of the Law Practitioners Act the power to appoint SCs and SAs is vested in the President of the Republic of Mauritius who appoints on the recommendation of the Chief Justice. Fifteen years’ standing is the only requirement as per the law and, in fact, the appointment is left entirely at the discretion of the Chief Justice. The judiciary should be an icon of transparency. The opacity surrounding these appointments does not give credence to the system. With its  renewed mandate , time is ripe for action for the present Government provided there is a will for some to come down a few steps from the Olympian heights of intellectual aristocracy. Coupled with that, the appointment of a new Chief Justice who has an impressive track record both at the Attorney General’s Office and in the judiciary, there is a glimmer of hope. Few years back, Mrs Urmila Benymandub-Boolell  SC expressed her views on the issue but, unfortunately, her suggestions fell on deaf ears. Normally, individual members of the profession refrain from expressing their views openly on the subject through fear of repercussions. Therefore, the Mauritius Bar Association and the Law Society cannot remain fence sitters on the question. They should, unhesitatingly, join in the debate and make representations, bearing in mind that there is unanimity that the current procedure adopted belongs to a by- gone age.

We need to draw inspiration from the procedure adopted in other democracies. In the United Kingdom (UK) , Queen’s Counsel is appointed by the Queen, on the advice of the Lord Chancellor, who is, in turn, advised by an Independent Selection Panel composed of nine members, chaired by a lay member. The Independent Selection Panel receives and scrutinizes each application and makes recommendations.  Application to become QC is an extensive process and candidates must satisfy a demanding five-staged competency framework including: understanding and using the law, written and oral advocacy, working with others, diversity and integrity. Applications usually provide evidence from several cases they have worked on and references and confidential assessments from judges, fellow advocates, and professional clients are considered before successful candidates are invited for an interview. During the interview, applicants sit before a selection panel of ten persons, comprising of barristers, solicitors, a retired judge and non-lawyers. On the other hand, lawyers and legal academics who have made a major contribution to the law of England and Wales outside practice in the courts can be appointed  QC Honoris Causa on the sole recommendation of the Lord Chancellor.

Until recently India, like Mauritius used to have an arbitrary system of appointment of SCs.  It was only after the case of Indira Jaising v. Supreme Court of India through Secretary-General &Ors, a public interest litigation that positive steps were taken to formulate new guidelines for the designation of senior advocates. According to Jaising’s petition, “there is no transparency in the procedure, no criteria laid down for determining excellence in advocacy and no rational nexus between the persons designated and their excellence or no rational reason for rejection of persons of eminence and ability”. Jaising went further in describing the process as a “beauty contest”, because since 2014 judges’ popular vote decided who to designate as senior advocates rather than “an informed discussion among judges on the merits of each candidate” or the prior convention of designating anyone who applied and who had at least five judges’ approval. The court in the case of Jaising considered Section 16(2) of the Advocates Act 1961 and Rule 2(a) Order IV of Supreme Court Rules, 1966  while formulating guidelines.  As a result, Supreme Court Guidelines to Regulate Conferment of Designation of Senior Advocates, 2018, were formulated.  It provided for the setting up of a permanent committee for that purpose, known as the “Committee for Designation of Senior Lawyers”. The Committee comprises of the Chief Justice of India as its Chairperson, along with two senior-most Supreme Court Judges, the Attorney General for India, and a member of the Bar as nominated by the Chairperson and other members. All the applications for the designation of senior advocates are normally submitted to the Secretariat which collects data related to the reputation of the applicant, his work, knowledge, and the number of cases in which the advocate appeared in the past five years. This data is forwarded to the Committee which will decide whether the concerned advocate can be designated as senior or not.

In New Zealand, appointments to Queen’s Counsel are made by the Governor-General, by Letters Patent, under the Royal Prerogative. Pursuant to Regulation 04 of the Queen’s Counsel Regulations 2012 appointments are made on the recommendation of the Attorney-General and with the concurrence of the Chief Justice of New Zealand. Counsel seeking appointment as Queen’s Counsel should write to the Solicitor-General and the letter of application must be accompanied by a completed application form. The form provided reflects the requirements of the Regulations which are: excellence, knowledge of the law, commitment to improving access to justice, oral and/or written advocacy, independence, integrity and honesty and leadership.  On behalf of the Attorney-General, the Solicitor-General consults the New Zealand Law Society and the New Zealand Bar Association, as required by regulation 8 of the Lawyers and Conveyancers Act (Lawyers: Queen’s Counsel) Regulations 2012, and convey their views to the Attorney-General. The Attorney-General will consult with the Chief Justice on the candidates whose appointment is to be recommended to the Governor-General. Nothing in the Regulations or  Guidelines removes the Governor-General’s discretion to appoint as Queen’s Counsel,  from time to time, other lawyers in recognition for their extraordinary contributions to the field of law. Appointments can be drawn from members of the legal profession practising in other spheres including academia and public service.

In most respected democracies throughout the world, there is a process which has been put in place for such appointments unlike Mauritius, where it is fundamentally a tap on the shoulder system . It is clear that the current way in which SCs and SAs are appointed should be thoroughly reviewed. The Law Practitioners Act needs to be amended to that effect after consultation with, inter alia, the Judiciary, the Mauritius Bar Association and the Law Society. However, we should be cautious not to end up with a scenario where the more things change, the more they remain the same.