Order for Second Reading read.

(5.57 p.m.)

The Attorney General (Mr Y. Varma): Mr Speaker, Sir, I move that the Institute for Judicial and Legal Studies Bill (No. IX of 2011) be read a second time.

In fact, it is a privilege to present such a ground breaking and long awaited piece of legislation.  The setting up of the Institute is a landmark decision and will, I humbly believe, be remembered as one of the greatest achievements of this government led by Dr. the hon. Prime Minister in the legal field.

Mr Speaker, Sir, it cannot be denied that one of the major concerns of this government has always been the upholding of the rule of law, and that one of the ways of maintaining the rule of law is by ensuring that our justice and legal systems meet the required standards, which any democratic society digne de ce nom should achieve.  In order to attain this objective, this government has embarked upon ambitious reforms to modernise our judicial and legal system.  In fact, this government is pursuing the above objective today, with the introduction of this Bill in the National Assembly.

Indeed, the Bill mainly seeks to implement certain recommendations of the Presidential Commission (chaired by Lord Mackay) set up in 1997, the objective of which was, as hon. Members would recall, to examine and report upon the structure and operation of the judicial system and legal profession of Mauritius.

It is worth highlighting the relevant views and recommendations of the Presidential Commission, which are as follows –

(a)        it is highly desirable that courses should be organised for the continuing education of lawyers in legal developments;

(b)        studies by the Judiciary, following their appointment, are vitally important to the success of the Judiciary, and it is strongly recommended that a Judicial Studies Board be set up to have the responsibility of organising suitable induction training and continuing training for Judges and Magistrates at various levels;

(c)        a suitable budget would require to be given, and the Board should have a secretary from the Court Service who would be responsible for making the necessary practical arrangements to carry out the instructions of the Board;

(d)        participation in regional courses may be necessary, and cooperation with other institutions in the region providing judicial training might be appropriate;

(e)        it would be open to the Board to invite lectures from Judges from overseas, and it should also be within the scope of the responsibility of the Board to arrange for Judges and Magistrates to travel overseas from time to time to participate in study conferences also.  The decisions on these matters should be for the Board within the budget allotted to it, and

(f)        in view of the nature of the State Law Office (SLO), it would be right that members of the SLO should be able to participate in the courses and that from time to time courses might be provided of particular relevance to them.

Lord Mackay, thereafter, that is, in September 2006, extended the recommendation made earlier in the 1997 Report of the Presidential Commission, by suggesting that consideration also be given to providing in the law for law practitioners in general to be required to follow continuous legal training, as in the United Kingdom and other jurisdictions, and that an institution for the continuing training of Judges and Magistrates be set up.  As pointed out by Lord Mackay, this institution would play an important role in training and sensitising Judges and Magistrates and inculcating in them notions of case management etc. and he recommended that funds be made available for this institution.

In the light of the above views and recommendations of the Presidential Commission, and as stated at paragraph 290 of the Government Programme 2010/ 2015, the Institute for Judicial and Legal Studies Bill is therefore being proposed for the purpose of establishing an Institute for Judicial and Legal Studies, which shall mainly conduct Continuing Professional Development Programmes for law practitioners, including legal officers, and courses for prospective judicial and legal officers and law practitioners who qualified in a State other than Mauritius, for the purpose of promoting proficiency and ensuring the maintenance of standards in the Judiciary and among law practitioners and legal officers with a view to enhancing our legal system.

Mr Speaker, Sir, in the Budget Speech 2010/2011, it was announced, and I quote –

“The Judiciary also has a significant role to ensure that all persons are able to live safely under the Rule of Law and to protect life and property.  To enhance the Judiciary’s capacity to carry out its responsibilities, Government is providing for the setting up of an Institute for Judicial and Legal Studies for the continued training of professionals in both the judiciary and the legal profession.”

The Government is delivering on its promise and I thank the hon. vice-Prime Minister and Minister of Finance for his understanding and support.

Mr Speaker, Sir, the fact is that our legal system, as it presently stands, does not have the appropriate institutional framework, to enable members of the legal profession to undergo continuous training in order to improve their skills and meet the changing needs of their profession, which is day by day proving to be extremely demanding with the phenomenon of globalisation and the increasing need for the sharing of information and specialisation in certain areas of the law which can, very often, be quite complex.

It has often been stated that prospective judicial officers should receive proper training prior to their appointment and an institute along the lines of the École Nationale de la Magistrature in France or the Judicial Studies Board in the United Kingdom should be set up in Mauritius.  I recall stating in this House a few years ago, when I was a Government backbencher, that someone cannot be a Barrister on one day and become a Magistrate on the next. Appointment to judicial office demands a number of skills and we need to ensure that adequate training for that purpose is dispensed by a professional body.  It has long been advocated both by the Judiciary and the legal profession that such an institution should be set up.

Mr Speaker, Sir, the Institute for Judicial and Legal Studies Bill, therefore, seeks to fill the above vacuum in our law in order to increase professionalism in the legal sector.  This institution will also conduct courses, seminars or workshops for the continuing training of judicial, legal officers and law practitioners to keep them abreast with the latest developments and skills in the law.

I must point out that the draft Bill was circulated among various stakeholders, including the Judiciary, the Mauritius Bar Association, the Chamber of Notaries, the Mauritius Law Society, the Office of the Director of Public Prosecutions and the Law Reform Commission for their views and comments, and that due consideration has been given to the representations made, in the finalisation of the Bill. Nevertheless, despite wide ranging consultations, representations were also received after the Bill was introduced in the National Assembly and we have been sympathetic to these representations.  I will, therefore, be moving certain amendments at Committee stage, as circulated.

I shall now, Mr Speaker, Sir, take the House through the salient features of the Bill.

Clause 4 of the Bill provides for the objects of the Institute, which shall in fact be to –

• promote proficiency and ensure the maintenance of standards in the Judiciary and among law practitioners and legal officers, and generally in the delivery of Court services;
• foster continuing judicial and legal education;
• promote international exchanges and co-operation with other jurisdictions in the field of judicial and legal studies, and
• promote transparency and consistency in the sentencing of offenders, and the award of civil damages, by making recommendations to the Chief Justice for the issue of guidelines.

As for the functions and powers of the Institute, they are respectively provided for under clauses 5 and 6 of the Bill.  It is here worth noting that some of the main functions of the Institute shall be to –

• conduct or supervise courses, seminars or workshops for the continuing training of judicial and legal officers;
• devise, organise and conduct Continuing Professional Development Programmes for law practitioners, including legal officers, and courses for prospective judicial and legal officers and law practitioners who qualified as such in a State other than Mauritius. I would here like to point out that I shall, at Committee Stage, move an amendment to clause 2 of the Bill, to specifically provide for the definition of Continuing Professional Development Programme, and the definition of legal officer in relation to which a Schedule is proposed to be added to the Bill;
• arrange for the dissemination of information and documentation among judicial and legal officers and law practitioners, and
• organise and conduct courses for Police and public officers, Court staff and persons employed by law practitioners.

Mr Speaker, Sir, public officers in Ministries need to have drafting skills, and Police officers, officers from the Ministries of Labour & Industrial Relations, Health, Fisheries. etc and officers from local authorities need to be adequately trained to conduct cases in court.

Court staffs need also the appropriate skills to discharge court duties and persons employed by law practitioners have to be trained to work for law practitioners. The Institute for Judicial and Legal Studies will cater for the dispensing of these skills thereby helping in the administration of justice.

Mr Speaker, Sir, as far as the administration of the Institute is concerned, provision is made, under clause 7 of the Bill, for a Board, which shall administer and manage the affairs of the Institute and which shall be known as the Judicial and Legal Studies Board. The Board shall in fact consist of –

• a Chairperson who shall be a person who holds or has held judicial office, a law practitioner or legal officer of not less than 10 years’ standing, or a person who has proven ability and experience in legal education;
• 3 representatives of the Judiciary;
• the Solicitor-General or his representative;
• the Director of Public Prosecutions or his representative;
• a member of the academic staff of the Faculty of Law of the University of Mauritius;
• 3 law practitioners;
• a member of the civil society, and
• such other persons, not exceeding 3 in number, as the Chief Justice may, after consultation with the Chairperson, co-opt on the Board either generally or for any specific purpose.

As regards the appointment process, I would here like to draw the attention of the House, to the fact that clause 7 (3) (b) of the Bill presently provides for the appointment of the 3 law practitioners on the Board to be “after consultation with” the professional body concerned.  I shall, at Committee Stage, move an amendment to the clause, so that their appointment shall be “on the recommendation of”, instead of “after consultation with”, the relevant professional body.  As for the members eligible for re-appointment under clause 7(4) (a) (ii) of the Bill, I shall, at Committee Stage, move an amendment to the clause, to specify that their re-appointment shall be for not more than one further term of 3 years.

It is also to be noted that the Board may set up such committees as it thinks fit to assist it in performing any of its functions, and every member of the Board shall be paid such fee or allowance as the Chief Justice may determine.

Furthermore, in order to enable the Institute to carry out its functions, provision is made, under clauses 8 and 9 respectively of the Bill, for the appointment of staff and engagement of resource persons and consultants, by the Board.  Thus, under clause 8 of the Bill, the Board is given the power to appoint a Director who shall be the chief executive officer of the Institute.  The Board may also, after consultation with the Head of the Civil Service, appoint such other staff from among public officers as may be necessary for the proper discharge of its functions and every person so appointed shall be paid such allowance as the Board may determine.  As for resource persons and consultants, they are to be engaged on terms and conditions to be determined by the Board.

Insofar as the funds of the Institute are concerned, clause 10 of the Bill makes provision for the setting up by the Institute of a General Fund into which shall be paid all monies received by it and out of which all payments required to be made for its operation, shall be effected.

As far as clauses 11, 12, 13, 14, 15, and 16 of the Bill are concerned, they respectively provide for the powers of the Chief Justice (who may give directions of a general character to the Board), donations to the Institute, the execution of documents relating to the Institute, exemptions from payment of any registration duty, fee or charge in respect of any document under which the Institute is the sole beneficiary, legal proceedings and service of process on or by the Institute, the commission of offences and the penalties relating thereto.

Finally, clause 17 of the Bill, for its part, presently makes provision for the making of regulations by the Board, with the approval of the Attorney-General.  I shall, at Committee Stage, move an amendment to the clause for regulations to be made by the Board with the approval of the Chief Justice.

Mr Speaker, Sir, this Bill will be complemented by the provisions of the Law Practitioners (Amendment) Bill which will be debated shortly in the National Assembly.

Before concluding, I shall take the opportunity to inform the House that the Institute will, for a start, be using the premises of the Council of Legal Education and, negotiations are ongoing for part of the ex-Mauritius Broadcasting Corporation building in Forest Side to be used thereafter to house the Institute for Judicial and Legal Studies.  I am also informed, Mr Speaker, Sir,  that the École Nationale de la Magistrature of France and the Judicial Studies Board of the United Kingdom are ready to help in the setting up of the Institute.

In fact, the French Embassy has invited the “Sous-Directeur des Études” at the “Ecole Nationale de la Magistrature de Bordeaux” and the “Chef de Cabinet du Directeur de l’École Nationale de la Magistrature de Paris” to come to Mauritius in the coming months in order to hold consultations with the appropriate authorities.

I am pleased to inform the House that, in the margins of the Commonwealth Law Ministers’ Meeting in Sydney last week, I established contact with members of the Bar of the New South Wales and I am confident that we will be able to obtain the assistance of the Australian Bar and Judiciary in the organisation of Continuing Professional Development programmes and training for the members of the Judiciary in Mauritius.

Mr Speaker, Sir, the objective which the Government wants to attain, through this Bill, is not only to ensure that a high degree of professionalism and standard is maintained in the Judiciary and among law practitioners and legal officers throughout their career, but also to improve our judicial and legal system generally by bringing the necessary reforms to ensure that members of the public get, as far as possible, the best professional legal services and therefore reinforce the confidence of the public in the legal profession and the Judiciary.

The Lord Chief Justice of England and Wales at the Judicial Studies Board Lecture in 2010 stated the following, I quote –

“The Judicial Studies Board has been the judiciary’s greatest success story (…) it is the jewel in the judicial crown.”

I therefore have no doubt, Mr Speaker, Sir, that the Bill being proposed today will be favourably welcomed.

Last but not least, I would like to thank my officers who have worked on this Bill without forgetting the former Parliamentary Counsel, now Judge of the Supreme Court, Justice David Chan Kan Cheong, Senior Counsel and Sir Victor Glover, Legal Consultant.

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

Dr. A. Boolell rose and seconded.

07.42 p.m.)

Mr Varma: Mr Speaker, Sir, well posterity will remember those who have spoken against this Bill and Mr Speaker, Sir, I would have thought that it would be raising above party politics on such an issue. Alas! It has not been the case.

Mr Baloomoody: Are we not allowed to debate?

Mr Speaker: I will invite the hon. Attorney General not to make such remarks. Order!

Mr Varma: But Mr Speaker, Sir, I have to reply to the points which have been raised by the hon. Members; a number of points have been raised. I will take them one by one Mr Speaker, Sir. The hon. Third Member for Constituency No. 1 has said that there will be no obligation for law practitioners to follow the CPD and indeed, Mr Speaker, Sir, I mentioned it in my speech that reference should be made to the Law Practitioners (Amendment) Bill which has already been introduced in the National Assembly. Of course, we are not here to debate on that Bill, but I did make that point clear in my speech that reference should be made to that Bill where there is such an obligation.

Mr Speaker, Sir, the hon. Member also spoke about; we should not mix the ‘Ecole de la Magistrature’ in France and the institute for judicial and legal studies. Mr Speaker, Sir, we are at no point in time speaking of any mixture, we have to make a point clear; to date as we are speaking now in this House, we do not have continuous professional development for law practitioners or legal officers. Today, Mr Speaker, Sir, when we are speaking in this House, we do not have judicial training for prospective Magistrates and judges. This is precisely what this institute will do. Mr Speaker, Sir, the ‘Ecole de la Magistrature’, the judicial studies Board, we have made reference to them and they have agreed to extend their help to set up the institute. As I stated in my speech, the ‘Ecole de la Magistrature’ is sending two persons in the months to come to help us to set up the institute. We are speaking about the precise functions of the institute and this should be understood by one and all.

Mr Speaker, Sir, the hon. Third Member for Constituency No. 1 spoke about court services, whether there will be a time frame for the delivery of judgments and other things as regards the legal sector. Mr Speaker, Sir, in my speech I did make mention that when there will be compulsory judicial training.  The prospective judicial officers will be trained about case management and what does case management mean? That is the hearing of cases and delivering of judgments. We can’t put that in the law that the Judge or the Magistrate should deliver a judgment within a time frame but, of course, the proper training can be given, as far as case management is concerned. Mr Speaker, Sir, I’ve heard the hon. Members of the Opposition speaking about recommendations being made for sentencing guidelines and award of damages. Mr Speaker, Sir, at no point in time will this institute formulate guidelines or even give guidelines as to the award of damages. What it will do, Mr Speaker, Sir, or rather what it can do is to make recommendations to the hon. Chief Justice and I’ve heard the hon. Members speaking about duplicity of work; they have made reference to the United Kingdom. Are they aware that in the United Kingdom there is a specific institution called the Sentencing Guideline Institute? It exists in the UK!  Mr Speaker, Sir, as far as, guidelines for judicial conduct is concerned, I don’t know whether I have heard the hon. Third Member for Constituency No. 1 right; he said that there are no guidelines for judicial conduct, just go on the website of the Supreme Court Mr Speaker, Sir. Guidelines for judicial conduct are on the website of the Supreme Court.

Mr Speaker, Sir, as regards the public and Police officers who will be receiving training, we have been practising and we know that officers from the Ministry of Labour, from the Ministry of Fisheries, from Local Authorities, officers from the Ministry of Social Security, Police Prosecutors, have to conduct cases in Court and do they receive training Mr Speaker, Sir? They don’t! Today we are bringing before this august Assembly, before this House a piece of legislation that will give training to these people and this is being opposed Mr Speaker, Sir. I can’t understand the logic behind it!

Mr Speaker, Sir, it is good to find the difference between what the hon. Members of the Opposition have said; hon. Baloomoody and hon. Uteem have been in favour of the setting up of the institute and hon. Obeegadoo has been against. There is a clear difference of Opposition between the Members of the Opposition. Mr Speaker, Sir, our Government Programme 2010- 2015 makes clear mention of the setting up of the institute for judicial and legal studies, the budget which was voted in this House, Mr Speaker, Sir, makes specific reference to that. The hon. vice Prime Minister mentioned that in his Budget Speech that provision has been made for the setting up of such an institute because we have to put emphasis on the rule of law, judicial training and continuous professional development for law practitioners and legal officers.

Mr Speaker, Sir, I’ve heard hon. Members speak about incoherence between various institutions.  Each and every institution that we have in this country, as far as the legal sector is concerned, is all entrusted with a specific duty. The Bar Council has its duty, the law society, the Chamber of Notaries, the Law Reform Commission. We have got the Council for Legal Education; each one has got its own function, Mr Speaker, Sir. But did we have an institution, Mr Speaker, Sir, to cater for continuous professional development and judicial training? No, Mr Speaker, Sir. That is why we had to come up with this Bill, to set up an Institute for Judicial and Legal Studies.

Mr Speaker, Sir, in fact, when the hon. Members of the Opposition were debating, I just thought they were saying that we had gone beyond the ambit of what Lord Mackay had recommended.  In fact, Mr Speaker, Sir, Sir Hamid Moollan, the Chairperson of the Bar Council, congratulated me.  As we are all aware, he was a member of that Commission which came up with the report.  He said ‘you have gone beyond Mackay; you have done a very good job’.  As I mentioned in my speech, Mr Speaker, Sir, this Bill has been well ventilated.  This Bill has received recommendations from all the stakeholders.  I mentioned the Bar Council, the Law Society, La Chambre des Notaires, the Office of the DPP and the Judiciary.

Mr Speaker, Sir, I heard the hon. Members of the Opposition speaking about whether there is encroachment on the judicial functions.

(Interruptions)

Mr Speaker: Let the Minister reply!

Mr Varma: Mr Speaker, Sir, this Bill has gone to the Judiciary.  This Bill has received representations from the hon. Chief Justice.  This Bill has been accepted by the Judiciary and by all the stakeholders in the legal sector.

Mr Speaker, Sir, I come now to what hon. Obeegadoo has said, namely whether this institution will provide standard in the Judiciary and the legal profession.  The functions of the Institute itself will increase the standard in the profession and in the judicial sector.  It’s automatic, Mr Speaker, Sir!  When we are speaking about continuous professional development and judicial training, we are, in fact, moving towards enhancing the level of the legal sector.  This is what we are doing to raise the standards.

Mr Speaker, Sir, the hon. Third Member for Constituency No. 17 said that there would be no training in specialised areas.  What does CPD mean?  CPD means that we should keep abreast with the latest developments in the law, as the hon. Minister of Labour, Industrial Relations and Employment and the hon. Minister of Tertiary Education, Science, Research and Technology stated.  If there is a need for specialised courses in International Taxation, in Arbitration, they will be dispensed by this Institute, and law practitioners and legal officers will go and attend seminars.  They will know about these new areas of the law.  What prohibits the Institute, Mr Speaker, Sir, to conduct these courses?  Hon. Obeegadoo also asked why the University of Mauritius does not conduct such courses.  Mr Speaker, Sir, the University of Mauritius can!  If we look at the functions of the Institute, at clause 5 (a), it is stated that the Institute can –

“conduct or supervise courses, seminars or workshops for the continuing training of judicial and legal officers;”

Mr Speaker, Sir, this can be possible.

Mr Speaker, Sir, the hon. Second Member for Constituency No. 2 spoke again about the risk of overlapping, to which I have already replied.  But, I would like to know why they have not come up with concrete examples!  Where is the overlapping, Mr Speaker, Sir?  The hon. Second Member for Constituency No. 2 said that the École de la Magistrature should take up the role of the CLE.  Mr Speaker, Sir, is that not knowing the role of the CLE?  What is the CLE doing now?  It is conducting courses and examinations for prospective law practitioners!  It is not conducting courses for prospective judicial officers; it is not conducting CPD.  He even went further and said whether these courses should be MQA or IVTB approved.  Can you imagine that?  This is an insult to the legal profession, Mr Speaker, Sir; I am sorry to say that.  Whether courses for prospective judicial officers, CPD for law practitioners should be MQA or IVTB approved, Mr Speaker, Sir!

Mr Speaker, Sir, I think I have replied to almost all the matters which have been raised by the hon. Members of this House and I, again, commend the Bill to the House.

Question put and agreed to.

Bill read a second time and committed.

COMMITTEE STAGE

(Mr Speaker in the Chair)

THE INSTITUTE FOR JUDICIAL AND LEGAL STUDIES BILL

(NO. IX OF 2011)

Clause 1 ordered to stand part of the Bill.

Clause 2 (Interpretation)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma: Mr Chairperson, I move for the following amendment –

“in clause 2 –

(i)         by deleting the definition of “Continuing Professional Development Programme” and replacing it by the following definition –

“Continuing Professional Development Programme” means such Programme as may be devised, organised and conducted by the Institute for each of the 3 branches of the legal profession with a view to broadening the knowledge of law practitioners and legal officers, keeping them abreast of developments in the law, encouraging them to share experiences and enhancing their professional skills;

(ii)        by deleting the definition of “Council”;

(iii)       by deleting the definition of “legal officer” and replacing it by the following definition –

“legal officer” means an officer who holds an office specified in the Schedule and includes the holder of the public office of Chief Legal Secretary, Legal Secretary or Assistant Legal Secretary at the Attorney General’s Office;”

Amendment agreed to.

Clause 2, as amended, ordered to stand part of the Bill.

Clauses 3 to 6 ordered to stand part of the Bill.

Clause 7 (The Board)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma: Mr Chairperson, I move for the following amendment –

“in clause 7 –

(i)   in subclause (3)(b), by deleting the words “after consultation with” and replacing them by the words “on the recommendation of”;

(ii)  in subclause (4)(a)(ii), by adding the words “for not more than one further term of 3 years”;”

Amendment agreed to.

Clause 7, as amended, ordered to stand part of the Bill.

Clauses 8 to 16 ordered to stand part of the Bill.

Clause 17 (Regulations)

Motion made and question proposed: “that the clause stand part of the Bill”.

Mr Varma: Mr Chairperson, I move for the following amendment –

“in clause 17, in subclause (1), to delete the words “Attorney General” and replace them by the words “Chief Justice”;”

Amendment agreed to.

Clause 17, as amended, ordered to stand part of the Bill.

Clause 18 ordered to stand part of the Bill.

The Schedule (as proposed) read a second time.

Motion made and question proposed: “that the Schedule stand part of the Bill.”

Mr Varma: Mr Chairperson, I move to add the following Schedule –

SCHEDULE

[Section 2]

Attorney-General’s Office

Solicitor-General

Deputy Solicitor-General

Parliamentary Counsel

Assistant Solicitor-General

Assistant Parliamentary Counsel

Principal State Counsel

Senior State Counsel

State Counsel

Chief State Attorney

Deputy Chief State Attorney

Principal State Attorney

Senior State Attorney

State Attorney

Office of the Director of Public Prosecutions

Director of Public Prosecutions

Deputy Director of Public Prosecutions

Senior Assistant Director of Public Prosecutions

Assistant Director of Public Prosecutions

Principal State Counsel

Senior State Counsel

State Counsel

Chief State Attorney

Deputy Chief State Attorney

Principal State Attorney

Senior State Attorney

State Attorney”

The Schedule ordered to stand part of the Bill.

The title and enacting clause were agreed to.

            The Bill, as amended, was agreed to.

On the Assembly resuming with Mr Speaker in the Chair, Mr Speaker reported accordingly. 

Third Reading

On motion made and seconded, the Institute for Judicial and Legal Studies Bill (No. IX of 2011) was read the third time and passed.