Order for Second Reading read.

The Attorney General (Mr Y. Varma): Mr Speaker, Sir, I beg to move that the Court Ushers (Amendment) Bill (No. IV of 2011) be read a second time.

Mr Speaker, Sir, the aim of this Bill is to amend the Court Ushers Act so as to liberalise the profession of usher, by enabling suitable persons, who are not public officers and who will be known as registered ushers, to serve or execute process. In the same breath, provision is being made for the manner in which registered ushers will exercise their profession and for the exercise of disciplinary control over them by the Chief Justice.

Mr Speaker, Sir, I believe it would be appropriate to start off by briefly considering the duties of a court usher. A court usher, Mr Speaker, Sir, is either attached to the Supreme Court, Intermediate Court or a District Court. His prime duty is to ensure that the day-to-day business of a Court runs smoothly. It is his responsibility to prepare a courtroom every morning by ensuring that Judges, Magistrates, Lawyers and the Jury, if any, have all the necessary equipment that they need before the court starts. He will then be in charge of coordinating all that happens in the courtroom, including maintaining order in court, calling of cases, calling of parties and witnesses, and administering oaths. In serious criminal cases where we have the jury, one or several ushers may be assigned the task of staying with them to prevent communication with unauthorised persons. In fact, Mr Speaker, Sir, a Court Usher is usually in attendance throughout the whole sitting of the court, which normally starts at 9.30 in the morning and may end at around 4.00 in the afternoon.

Mr Speaker, Sir, apart from these court duties, a Court Usher has other important tasks. He is responsible for serving and executing judicial and extra judicial process. He has to serve summons on accused parties in a criminal case, parties in a civil case and witnesses in both criminal and civil cases. A Court Usher may serve other documents like notice “mise-en-demeure”, injunctions issued by the Judge in Chambers or the Supreme Court, orders for immediate care and control of children, petitions for divorce and custody of children, plaint with summons, notice of motions to be made before the Supreme Court, notice of “commandement” prior to seizure of immoveable property. He is also in charge of executing writs and warrants issued by courts.

Other processes executed by a Court Usher include seizures of moveable and immoveable properties. He is also responsible for the sale by auction of moveable properties seized at the instance of private parties in civil cases, or forfeited by the courts in criminal cases.

Mr Speaker, Sir, Court Ushers therefore play a very important role in the good administration of justice in this country and have heavy responsibilities. It is not surprising that it is not always possible for them to discharge all their duties promptly.

Mr Speaker, Sir, the Presidential Commission, better known as “the Mackay Commission”, studied the role of Court Ushers in Mauritius and, in its report, recommended that, and I quote –

“We do not consider that it is necessary to prevent a continuation of the present arrangement under which the service of process, so far as it shall continue to be necessary, and the execution of judgment can be performed by ushers who are full-time public servants, but we recommend that it should be possible for a person properly qualified as an usher in accordance with the requirements laid down for that purpose to be authorised to act as an usher for the purpose of serving Court process or executing Court judgments by the Chief Justice if the Chief Justice is satisfied that he or she is suitably qualified and is a person of integrity appropriate to be granted a certificate to act as an usher.” Unquote

Mr Speaker, Sir, these recommendations were taken on board and the views of various stakeholders were sought on the changes to be made to the Court Ushers Act. I need to point out, Mr Speaker, Sir, that no reform concerning the Judiciary is carried out without consulting the Judiciary and colleagues from the legal profession. Comments and proposals were received from the honorable Chief Justice, the Director of Public Prosecutions, the Law Reform Commission, the Bar Council, the Mauritius Law Society and the Chamber of Notaries, and they are all broadly agreeable to the liberalisation of the profession.

However, I must report that the Court Ushers are themselves split on this issue. But, Mr Speaker, Sir, it is believed that the liberalisation of the profession of usher will be of benefit to the public at large since competition will bring about a better and more cost-effective service to the citizens.

Mr Speaker, Sir, Court Ushers should rest assured that the liberalisation of the profession of usher does not mean that the profession is being privatised. We have to be clear on this issue. Court Ushers are public officers appointed by the Public Service Commission and they will remain public officers. On the other hand, registered ushers will be those appointed by the Chief Justice and their duties will not be the same as Court Ushers. They will not generally be entrusted with the day-to-day business of the Court. They will only be responsible for serving and executing process as and when required by Attorneys or other persons, and will thus assist in the efficient and prompt execution of service, taking into consideration the growing number of both civil and criminal cases in our Courts and the fast pace of life nowadays.

Mr Speaker, Sir, having described the role to be played by registered ushers, allow me at this stage to elaborate on the salient features of the Bill.

Clause 3 of the Bill sets out the amendments to be made to section 1A of the Court Ushers Act with regard to the definitions of “Court Usher” and “registered usher”. The definition of “Court Usher” is amended to make it clear that Court Ushers remain public officers.

I hasten to add, Mr Speaker, Sir, that through some regrettable oversight a few words are missing from the clause.  Clause 3 (a) of the Bill should read, in fact, “in the definition of Court Usher’ by inserting after the words ‘Usher of a Court’, the words ‘who is a public officer and’.  I do apologise for any inconvenience, although I am sure that hon. Members will have correctly understood the purpose of the amendment, even without the omitted words.  I understand that the Clerk will do the needful for this editorial mistake to be corrected.

A new definition of “registered usher” is also being provided for. It states clearly that registered ushers are only those persons who will be appointed as such under section 26B(3) (a) of the Court Ushers Act and that Court Ushers are not included among registered ushers.

Clause 5 of the Bill causes new sections 26A to 26H to be inserted in the Court Ushers Act. The new section 26A provides that registered ushers are to be governed by the regime provided for in the new sections 26A to 26H.

The new section 26B will provide that any citizen of this country may apply to the Chief Justice to be appointed as a registered usher where he holds such qualifications, and has passed such examination, as may be prescribed by rules made under the Court Ushers Act and satisfies the Chief Justice that he is of good character. The Chief Justice may appoint a person who fulfils the above conditions and furnishes the required security as a registered usher. Notice of the appointment shall be given in the Gazette by the Master and Registrar.

The new section 26C provides for a security to be entered into by a registered usher for him to be of good behaviour, to perform his duties efficiently and to comply with the Court Ushers Act. This security may be made available, by order from a competent Court, for the payment of any damages, interest and costs to a person who has retained his services. Furthermore, the Chief Justice may, in the exercise of disciplinary proceedings against a registered usher, order that the security entered by him be forfeited by the State.

The new section 26D sets out the duties of registered ushers. As I have indicated above, registered ushers may serve or execute judicial or extra-judicial process when their services are retained by an attorney or other person. They will not generally be authorised to perform the duties prescribed for Court Ushers. However, exceptionally, the Master and Registrar may request a registered usher to perform the duties of a Court Usher on payment of such allowance as the Chief Justice may determine for a limited time.

The new section 26E provides for the payment of prescribed fees and travelling allowance to a registered usher where his services have been retained by an attorney or another person, while the new section 26F provides for the duties of a registered usher with respect to entries in respect of specified matters to be made in a register. As regards the new section 26G, it provides that failure by a registered usher to comply with his statutory duties or the commission by him of a wrongful act may lead to disciplinary proceedings being instituted against him and that his appointment being suspended for a period not exceeding 12 months or revoked, following the institution of a disciplinary tribunal by the Chief Justice. The new section 26H sets out offences related to the exercise by the registered usher of his duties.

Mr Speaker, Sir, the introduction of the Court Ushers (Amendment) Bill is yet another important step in the implementation of the recommendations made by the Mackay Report. It also illustrates the strong commitment of this Government to bring about necessary reforms within the legal profession and that of the Court personnel. In my humble submission, this Bill strikes the right balance by safeguarding the interests of all parties concerned and making an important distinction between the role of a Court Usher and that of a registered usher.

I am confident that the liberalisation of the profession of usher is an important element of fair and efficient justice and that it will benefit litigants and society at large.

With these words, Mr Speaker, Sir, I commend the Bill to the House.

Mr Faugoo rose and seconded.

Mr  Varma: Mr Speaker, Sir, I would like to thank and congratulate the hon. Minister for Information and Communication Technology and the hon. Second Member for Constituency No. 10, for their interventions, but I should inform the House that I am shocked and stunned by the stand taken by the Opposition, by stating that there is a piecemeal reform and also, that the piecemeal reforms can raise suspicion.  Mr Speaker, Sir, I didn’t think that the Opposition can be of such bad faith.

Mr Speaker, Sir, we have, over the couple of weeks, been coming to this House with Bills in order to modernise the legal system.  Mr Speaker, Sir, had we come at one go with all the Bills, they would have said that it is reform by ambush.  Now, when we are consulting all the stakeholders, we are coming forward with Bills which have been ventilated, we are faced with criticisms.  The hon. Third Member for Constituency No. 1 wanted to know where we are going, Mr Speaker, Sir, with the reforms in the judiciary.  He is well aware, Mr Speaker, Sir, that commitments have been given in this House that we are revisiting the Law Practitioners Act.  Commitment has been given in this House, Mr Speaker, Sir, that we are working on an Institute for Judicial Legal Studies Bill.

Mr Speaker, Sir, they are well aware.  They have participated in the consultation process on the Bills to set up the Court of Appeal.  They have been consulted, Mr Speaker, Sir, and they are well aware that we are working on the reforms to the legal aids system.  Mr Speaker, Sir, can the Opposition be of such bad faith?  I wonder!

Mr Speaker, Sir, the point raised by the hon. Third Member for Constituency No. 1, that we are putting the delay at the doorsteps of court ushers.  Mr Speaker, Sir, I did intervene on this Bill at the beginning.  At no point in time, did I mention that we are putting the blame on the Court Ushers.  What this piece of legislation intends to do, is to improve the system, Mr Speaker, Sir.  That is all.  We have never put the blame on X, Y or Z.  I said in my speech that the Court Ushers are divided on the subject.  I have maintained the same stand throughout.  I was put questions in this House, Mr Speaker, Sir, and I answered, and I again state to the House today; because only yesterday, some Court Ushers came to see me, to congratulate me on the introduction of this Bill in the National Assembly.

Mr Speaker, Sir, the other stakeholders were consulted.  I did state that the Judiciary, the Bar Council, the Law Society, the Law Reform Commission, the Office of the DPP were all consulted and we had to take a decision, Mr Speaker, Sir, on the balance when we saw the benefits.  Again, Mr Speaker, Sir, the Opposition speaks about reforms in the Judiciary.  In their programme, Mr Speaker, Sir, they speak about the Mackay reforms and when we are implementing the recommendations of Mackay, they are criticising.  Well, Mr Speaker, Sir, which is which, I don’t know.

Mr Speaker, Sir, the point was raised again, whether we are creating quicker justice for the rich. Mr Speaker, Sir, the present Court Ushers will continue to function as such.  If people want the Court Ushers – who are public officials – to serve or execute process, they still have the option to do it.  So, where is the problem, Mr Speaker, Sir?  Well, as far as, to put the public and private ushers at par, they are going to work on the different terms and conditions.  I don’t see how they can be put at par.  The same applies to health and education sectors, to name just a few, Mr Speaker, Sir.  These are a few points which were raised and I have replied to all the points raised by the hon. Members.

Question put and agreed to.

Bill read a second time and committed.