Hon. Judge Eddy Balancy’s disappointment and the Creole Convention Honourable Eddy Balancy is a puisne judge of the Supreme Court of Mauritius, classified as No.3 in a fictitious hierarchy based on number of years of service. The presence of Hon. Balancy on the panel of a Creole Convention, called « Konvention Kreol », a convention regarded by many Mauritians as a sectarian convention, has created an upheaval in Mauritian society to such an extent that Nita Deerpalsing, government Labour MP, felt obliged to intervene and denounce the judge. Labour MP Nita Deerpalsing, and Hon. Judge Eddy Balancy Hon. Eddy Balancy is well-known for making political declarations to the media. In line with political parties like Rezistans ek Alternativ, the judge made known his dislike for the minority protection Best Loser System even though his decision was reversed by the Full Bench of the Supreme Court. In July 2013, Hon. Balancy declared his dislike for the Criminal Appeal (Amendment) Bill which was being debated in Parliament, giving ammunition to the Opposition, and for which he was severely reprimanded by the PM Dr Navin Ramgoolam. It is believed that Hon. Balancy’s public stances on political issues may have had an impact on the decisions of the Chief Justice Hon. Bernard Sik Yeun, taken around 11th October 2013, in not selecting him to stand in either for the Chief Justice himself or for the Senior Puisne Judge Hon. Keshoe Matadeen in their absences. The puisne judges Hon. Lam Shang Leen and Hon. Saheeda Peeroo were selected for those respective positions. In spite of the fact that Hon. Balancy is more senior in terms of length of service, the law does not provide preference for such alleged seniority and, consequently, there was no obligation on the CJ to nominate Hon. Balancy. So, why the hullaballoo since no injustice has been done? Why urge Hon. Balancy to refer the matter to the Equal Opportunity Commission? Hon. Balancy is said to have been subsequently taken ill to Darné Clinic on 14th October 2013 with a malaise. After his discharge, he made further statements on Radio Plus on 23rd October saying that he was aggrieved and disappointed with the CJ’s decision (Défi 24 Oct 13 - « Judiciaire – Le juge Balancy « très peiné et déçu »). He later expressed his wish to be promoted SPJ in December 2013 when the CJ is meant to retire (Défi 28 Oct 13 - « Judiciaire : le juge Balancy s’attend à être promu »). Reasonable people would undoubtedly see in those declarations a design to force the hands of the CJ since, under section 77(2) of the Mauritian Constitution, the Senior Puisne Judge is appointed by the President upon the « advice » of the Chief Justice. « Konvention Kreol » and religion The presence of Hon. Balancy on the panel of the Creole Convention, which is a sectarian convention, has been commented by Raj Meetarbhan, editor of l’Express, in his editorial of 28 October 2013 in the following translated terms : « Nobody is fooled. The presence, yesterday, of judge Eddy Balancy on the panel of Konvansion Kreol, a movement which portrays itself as "a platform which allows exchange of ideas and opinions within the Creole community" is not a coincidence. It stems from the uncertain situation which has been facing the judiciary for some time. » Mr Meetarbhan seems to imply that Hon. Balancy is now resorting to sectarian pressure to obtain what he wants in the judiciary because he is uncertain about his future. The editor went on to say : « If the sectarian platform has become a lifeline even for judges who feel aggrieved, then one should not turn a blind eye any more. » Earlier, in his editorial « La surprise du chef juge » of 22nd October 2013, he refers to « the astonishing decision of the Chief Justice », argues that seniority is normally respected and speaks of « a politico-judicial crisis ». But, at no time does the editor condemn any attempt to bring sectarian and political pressure on the state to get what one wants as he usually does when it concerns non-Creole sectarian platforms and organisations to which he would urge turning a blind eye. For her part, Nita Deerpalsing, government Labour MP, « asks herself about the "common" connection between the No. 3 of the Supreme Court and Somduth Dulthumun, President of the Mauritius Arya Ravived Pracharini Sabha » (Défi 29 Oct 13 - « Konvansion Kreol : Nita Deerpalsing s’en prend à Eddy Balancy »). Ms Deerpalsing denounced the judge and she reportedly said : « Aujourd’hui (Ndlr dimanche) un juge de surcroît aspirant Chef Juge svp ine alle chauffe banc dans enn programme organisé/animé par des clerics religieux ». But the Creole Convention is not a religious convention because the term Creole is not synonymous with any particular religion. Creole is a term born in and intrinsically associated with slavery and used to denote the language spoken by African slaves and their descendants, through which they became known as Creoles themselves. In fact, a Creole can be a Hindu, a Muslim or a Catholic, even an Atheist, but the term is religiously discriminatory as it tends to denote only Catholics of African slave descent since the vast majority of the descendants of slaves are Catholics, hence their affinity with the Catholic Church and the presence of clerics at the said Creole Convention. Political analysts may well argue that crucial Creole votes are at stake, but Hon. Balancy may not have been aware of this and at no time did he identify himself as a Catholic Creole. However, this begs the question as in what capacity did he form part of the panel of the Creole Convention. Conclusion The issue here is whether it is right and proper for a judge of the Supreme Court of Mauritius to behave in such a way because the Chief Justice did not meet his expectations. Who the Chief Justice nominates to stand in for himself and/or for the Senior Puisne Judge in the absence of either or both, and who the Chief Justice decides to advise the President to designate as CJ when the office of the Chief Justice is vacant (S77(5)), is entirely up to the Chief Justice, and no political pressure can budge him. In fact, under the concept of Separation of Powers, it would be unlawful to attempt to bring political pressure, directly or indirectly, to bear on the Chief Justice. M Rafic Soormally London 29 October 2013 Ability to deliver justice, the main criterion for nominating judges? Reasonable people would no doubt be of opinion that the quality of a Judge in delivering justice based on sound legal principles and proper appreciation of facts based on evidence rather than hearsay should be the main criterion in the nomination of Chief Justices, Master of the Rolls and Puisne Judges. Under section 77 of the Mauritian Constitution, the Chief Justice is appointed by the President after « consultation » with the PM (ss.1), and the Senior Puisne Judge is appointed by the President upon the « advice » of the Chief Justice (ss.2), while Puisne Judges are appointed by the President on the advice of the Judicial and Legal Service Commission (ss.3) which is chaired by the CJ. Under ss.4, the only requisite qualification for appointment as a Judge of the Supreme Court is that one should have been a barrister for at least 5 years and « entitled to practise before the Supreme Court ». Ss.5 makes it clear that « Where the office of Chief Justice is vacant or the person holding that office is for any reason unable to perform the functions of the office, those functions shall be discharged by such one of the other Judges of the Supreme Court as may be designated in that behalf by the President acting in accordance with the advice of the person holding the office of Chief Justice ». And, « the President shall act after consultation with the Prime Minister » only where he considers it is « impracticable to obtain the advice of that person [the present CJ] owing to that person´s absence or illness. ». Hence, it appears that consultation between the President and the PM only takes place when a Chief Justice is appointed for the very first time and when it is impracticable to obtain advice from the present CJ for the appointment of a new CJ. It also appears that the designation of the new CJ when the office of the CJ becomes vacant is done « by the President acting in accordance with the advice of the person holding the office of Chief Justice » rather than after consultation with the PM. Meaning of « puisne » and seniority The term « puisné » is old French which means « inferior ». In English, we use the term « puisne » (pronounced puny), which means « inferior in rank ». In the Supreme Court of Judicature, all judges who do not have a distinct title, such as Lord Chief Justice, Master of the Rolls, are referred to as Puisne Judges. They rank pari passu with one another irrespective of their number of years of service, or age. Hence, there is no such thing as a ‘principle’ of seniority which should be respected. Similarly, although numbers 1,2.3.4, etc., are used to denote some form of seniority per years of service, this numbering system is merely a layman’s interpretation. M.R.S. Note: Both pieces have been published in the Mauritian press.