The words ‘absolute discretion’ purport to exempt the prime minister’s decision under this enactment from judicial control. Hence it is arguable that this provision of the law is repugnant to the principle of separation of powers embodied in our constitution – a principle under which the legislator has no right to interfere with the role of the judiciary in deciding on the legality and constitutionality of any decision of the executive.

He started his career as a barrister and ended it as chief justice. Eddy Balancy is well-known, not just for the positions he occupied but also for his judgements, some of which have set a legal precedent. In a frank interview, peppered with humour, the former chief justice answers all our questions without fear or favour. Here is a journey through the intricacies of our legal system and an honest opinion on some of the cases that have made the headlines.

We are going to start with the latest piece of legislation introduced in our laws called the Immigration Act 2022. It is being challenged by Lalit’s Lindsey Collen on the grounds that it is unconstitutional. As a former chief justice, do you think it is?
It is a paradox to express an opinion “as a former chief justice”. A chief justice and indeed any judge hearing a case, forms an opinion after hearing the submissions on both sides. I have not had the benefit of such submissions and, as a former Chief Justice, my opinion will be that of a lawyer, with the experience, of course, of a chief justice, looking at the Immigration Act 2022 from the constitutionality angle.

          Article 39(4) of the Immigration Act 2022, which has repealed the previous legislation, provides as follows:

          “The minister may, in his absolute discretion and without giving any reason, deprive any person of his citizenship of Mauritius, if he has reliable information and is satisfied that it is in the interest of defence, public safety or public order”

The words ‘absolute discretion’ purport to exempt the prime minister’s decision under this enactment from judicial control. Hence it is arguable that this provision of the law is repugnant to the principle of separation of powers embodied in our constitution – a principle under which the legislator has no right to interfere with the role of the judiciary in deciding on the legality and constitutionality of any decision of the executive. It is interesting to read, in this connection, a dissertation by Antonia Leggat concerned with the expression “absolute discretion” under the Immigration Act 2009 in New Zealand. The title of the dissertation, which was submitted to the Victoria University of Wellington for the LLB (Honours) Degree in 2016 is telling: “Absolute discretion and the rule of law: uneasy bedfellows.”

This law goes a step further than the Amendment to the Immigration Act 2019, which was legislated while you were Chief Justice. What do you think of it?
Yes, I was chief justice but no one asked me about my opinion (Laughs).

I am asking you now. This is as good an opportunity as any…
Well, my answer to your present question is already contained in my reply to your first question.

The Amendment to the Immigration Act was named the Hofman Law by the press as the first and only victim was Patrick Hofman, the pilot who had angered the prime minister by calling him ‘fou’. Do you think this amendment serves any other purpose?
This goes further than asking my opinion as a lawyer and I am sorry I won’t be willing to answer it.

Ok. Let’s go back to the Immigration Act 2022. You will concede that the Judiciary is very conservative in its approach and very finicky about the locus standi when you challenge the law. We are nowhere near Indian law where any citizen can challenge a law s/he may find unconstitutional, are we?
Not at all. India has a very liberal procedure where anyone can just write to the chief justice asking him/her to start enquiring into a constitutional point. The Judiciary in Mauritius, on the other hand, follows English tradition which is extremely conservative. I for one have been going against this tradition every now and then and I have come to be known as a revolutionary, particularly when it comes to constitutional matters and human rights. I have always had an avant-gardist approach.

Do you feel that your colleagues are too conservative to entertain challenges to the law?
It is very difficult for me to generalise. Some of my ex-colleagues are much inclined to follow my steps, especially that we sat together in court to prepare judgments. I think that some of them are likely to follow the trend. But there are other who, I am afraid to say, may not follow suit.

And what do you think of our law concerning locus standi?
I think it is obsolete. Maybe ‘obsolete’ is too strong, so let’s say it is too much of a retro law. It is not modern enough. We need a law which is more in keeping with modern times.

You mean a law which allows any citizen to challenge any proposed piece of legislation they feel is unconstitutional?
Yes. We should not need to have any kind of interest in the way it is defined in the law.

In Mauritius right now, even if you had some interest in challenging a law as you stand to lose if it was applied, it’s still very difficult to challenge it, isn’t it?
Yes it is. It involves a very heavy procedure. I have always been against those heavy procedures, particularly in questions of human rights, as they result in so much delay.

You have raised a very important issue that everyone is complaining about: delay. We have seen the time it took for some electoral petitions to be heard and even then the inordinate time required before a verdict was pronounced. What is the cause of that?
It’s something endemic in the system. It is not due to one particular reason but to a combination of factors. I have been judge and puisne judge for 25 years but when I became chief justice, I only had 15 months in front of me to make changes. That wasn’t enough, particularly during the difficult period of Covid-19.

You had more time during the lockdown, didn’t you?
Not at all. A lot of my time was taken up with trying to devise a procedure to keep hearing cases during the Covid period to keep the court going, particularly urgent cases.

What is considered an urgent case?
Bail cases, for example, are urgent because it is the liberty of the subject which is at stake. So we heard cases over the phone and on Zoom. I was not at ease with complex technological matters but with the help of my son, I managed to learn and adapt.

If you had had time to address the delay, where would you have started? Have you identified the causes?
A number of factors are responsible for the delays in court. One of these factors is our excessive protection of the right of an individual to counsel of his/her choice. Nowhere in the great democracies is there such excessive protection of that right.

A number of factors are responsible for the delays in court. One of these factors is our excessive protection of the right of an individual to counsel of his/her choice. Nowhere in the great democracies is there such excessive protection of that right.

That’s good, isn’t it?
Yes, but it backfires. What tends to happen in this profession is that cases go to the same counsel. Cases are not evenly distributed amongst the population of counsel. So when counsel is very much in demand, he comes and says, “There are no dates in my diary; I am taken up.” And the court then tries to accommodate counsel too much.

But why does the court allow that? Counsel shouldn’t bite more than they can chew! That simple!
You are perfectly right! This is precisely the idea I wanted to defend. I started telling counsel, “I am so sorry. Your client has the choice of counsel but he has to pick counsel who are free on the fixed date.” And this is for his own good. Maybe we are curtailing to some extent his right to counsel of his choice in the sense that he can’t have his first choice and has to make do with his second choice. But, in return, we are giving him an earlier trial.

From the outside, we think the system is devious as counsel can delay cases they really don’t want their clients to face. Is that a false perception?
That’s a problem that is rather exaggerated. The layman tends to think that postponements are given at the lawyer’s demand. This is not true. In most courts, for postponements, there has to be a good reason. Unfortunately, though, in the lower courts, there is so much work and the magistrate fixes so many cases that they are often only too happy to accede to the lawyer’s request for a postponement, very often, based on flimsy reasons.

Which is exactly my point…
Yes, but we must not start with the general idea that the law allows postponements. It does not. A magistrate has the duty to ensure that postponements are granted only upon the judicious exercise of his/her discretion. This is where I wanted things to change.

What changes did you exactly want to bring in?
I wanted to introduce a whole exercise of case management. I wanted to have a team of judicial officers who are trained to be expert case managers. They would have been trained to go to all the courts of the island and reschedule all the cases in such a way that cases are disposed of without undue postponement.

What about the other factors? The way the clerk manually takes notes in the district courts is rather preposterous, isn’t it?
Yes. It’s a question of finance. The Judiciary should be able to dispose of its own funds. But this is not the case. It’s the executive which holds the purse. The ministry of finance has discussions with the Judiciary which is not always given the funds required to introduce the kind of technology that would speed up matters. Now, forget about technology: look at the state of some of these Courts! We need funds to effect a relooking of the courts in Mauritius. Things can only change if the executive unloosens the purse strings and the archaic procedures. We need technology and we need training in case management. Also, the Chief Justice is so taken up with cases that s/he doesn’t have time for administration. Maybe this sort of work should be entrusted to former judges and chief justices, who would go abroad for training and come back to train our judges and magistrates. We have a very, very untrained Judiciary in connection with administrative matters such as case management.

Going back to the topic on delay, why are the electoral petitions that you started looking into yourself taking that long? Who or what is responsible for such excessive delays? Don’t tell me it’s the lawyers…
No, it’s not the lawyers only. There are procedures and exchanges of affidavits, cases are delayed. This is why magistrates and judges have to use their discretion judiciously and not be afraid to impose drastic measures when it comes to the delay granted for filing documents. Sometimes the attorney comes and asks for a delay to file the documents because counsel hasn’t vetted it yet. Now the magistrate or the judge is faced with a dilemma: What do I do? Do I say, “It was your responsibility to do it in time but you didn’t so it’s too bad for your client”. Or grant the delay?

How is training going to help with this? It’s a question of attitude, isn’t it?
Maybe we are looking at training in a different way. For me training includes changing attitude. It includes teaching magistrates and judges to adopt a new paradigm.

Now, I don’t know if you share this opinion, but a few years ago, we never heard anyone criticise the verdict of a court. Recently, a bunch of experienced lawyers, well respected former Supreme Court Judges and even a former Chief Justice – like yourself – came out openly criticising members of the Judiciary and verdicts, particularly in the case of electoral petitions. Is the system getting worse or is it legal people who are becoming bolder?
I think it is legal people who are becoming bolder and understanding that it is not contempt of court to make fair criticism of judgments, as opposed to imputing improper motives to judges or magistrates.

I think people have gone beyond that. You yourself said some judges and magistrates are afraid of the establishment and that some may be incompetent.
Let’s start with one fact: in bail applications many magistrates and judges are not applying the correct principles. They state the principle in the judgment, giving it mere lip service and the judgment does not show any actual application of the principle. This is a fact we can’t get out of. What I said is that there are only two possibilities why they don’t apply the principle: either they are incompetent or there are reasons such as fear of displeasing public or other opinion, reasons which anybody would just guess.

We can guess too…
(Laughs) But I am not suggesting that they are biased.

But both hypotheses you gave are damning! If they are incompetent, it’s a deadly disease and if they are afraid of someone – whoever it is – it’s the end of independence.
Of course! I gave them two hats. They have to choose one of them. Unless they can invoke some other more palatable reason.

This kind of criticism, no one dared to express in the past. Why?
(Outburst of laughter) Maybe because there was no Eddy Balancy looking from the outside!

There was some criticism of the verdict in the case of Dayal Vs Jugnauth. Do it think that was warranted?
The judgment in the case of Dayal Vs Jugnauth stretches over 62 pages and appears to me, on a cursory reading, to be well motivated. However, I would not entirely subscribe to all aspects of the reasoning in the judgment and would be impatient to read what the Judicial Committee has to say on the matter.

One of the main contentions of Suren Dayal’s lawyers was that the MBC played a very dirty role, particularly in the episode involving Somduth Dulthumun, which came to be known as the katori episode. What do you make of that?
Let me tell you something: it is obvious that the MBC has played a dirty role throughout. This is a fact and it is getting worse….

This case is going to the Judicial Committee of the Privy Council. Without pre-empting what their verdict might be, how will Dayal’s team explain to the Judicial Committee what the Katori episode is, for example?
(Outburst of laughter) It’s amazing but I have noted that the JC takes for granted the statements of lawyers as to local conditions. And sometimes, the statements are not accurate and the JC may be misled.

Be that as it may, the Katori concept must be very alien to them, mustn’t it?
Yes, I know. This is where I think those who are against appeal to the JC as a last resort have a point. On the other hand, there is this question of the perception of detachment that would be missing without that recourse.

When the JC reverses a judgment, how does a judge feel?
To my knowledge no judgment written by me has been reversed by the JC. I accordingly have no experience of what it feels to have one's judgment reversed. But if that had happened, I do not think I would have taken it unkindly.

Now on the issue of bail that you have become the authority of, what exactly is the rule? Can you explain it in layman’s terms?
It’s very simple. The rule is that, because of the presumption of innocence and the right to liberty, a person should normally be granted bail, because bail is the release upon conditions the purpose of which is to ensure that if he happens to be the culprit, then he does not commit other offences while on bail and does not interfere with the course of justice if he is so minded; that is tamper with evidence, witnesses and that sort of thing. That is the basic idea.

In the case of Akil Bissessur, the police kept saying that they hadn’t finished the inquiry, not got the results of the tests from the FSL etc. What was the magistrate supposed to do in such conditions?
This is why magistrates have to be trained!

Trained to do what? If someone above has a grudge against you and the police following orders from above drag their feet before they take you to court and argue that you are a flight risk or that you might interfere with the witnesses etc., what can the magistrate hearing the case do?
Let me explain to you. Some magistrates hold that post only after a couple of years of practice as a barrister. They have little experience and no training as they have never been to une école de magistrature.

I still don’t understand what they can do if the police drag their feet…
Suppose I am the magistrate and the police come and tell me "we haven’t completed the inquiry yet." I will say, “So what? Does that mean that someone who might be innocent is going to wait for you until you complete the inquiry? This is no reason at all for me not to grant bail.”

"He is likely to interfere with witnesses and tamper with evidence…"
"Is there any likelihood instead of a mere possibility? Has he threatened any witnesses in the past or tampered with evidence? A mere conjecture on your part! It’s not going to work with me."

"He is charged with a very serious offence…"
"Yes but even people charged with murder and drug trafficking are entitled to bail! Because conditions can normally be imposed to make the risks you have mentioned negligible."

Suppose I am the magistrate and the police come and tell me "we haven’t completed the inquiry yet." I will say, “So what? Does that mean that someone who might be innocent is going to wait for you until you complete the inquiry? This is no reason at all for me not to grant bail.”

You say all this about bail but you are of the view that provisional charges should be maintained. How is that compatible with the right to liberty and bail?
You know, I have read your book. I read what Shakeel Mohamed and Geoffrey Cox said against provisional charges but I still hold the view that provisional charges should be maintained. The purpose of the provisional charge is simply to inform the person of the offence which he has been suspected of having committed, leading to his arrest. This is the basis of any application to be released on parole or on bail. On parole when there isn’t one iota of evidence. When you go against the provisional charge, you are attacking the wrong culprit!

What is the right culprit?
The arrest and/or detention, when unlawful!  Suppose you are arrested by the police and detained. Then you come to court and there is no provisional charge. The police have to go and ask the DPP for the charge. Aren’t we going to waste time? At this stage, they don’t know exactly what precise charge they are going to level against you because the inquiry has just started. So you need this provisional charge which you can either contest and ask to be struck down on the ground of abuse of process or use as a departure point for your application to be released on bail. That’s where I don’t agree with what Geoffrey Cox said in your book.

To be fair to Cox, he did say if we strike it out, what do we replace it with?
This is precisely my point! What happens then? You yourself would want a provisional charge against you.

So it is the detention that is the culprit, as in the case of Akil Bissessur, who was kept in custody for over 10 days. It’s totally unjustified, isn’t it?
Of course it’s unjustified! There was no reason for bail to be denied to him, if not released on parole without any requirement for bail from the very beginning. This is why I say that we need confident magistrates who are sure of themselves. Training will bring such confidence.

I can’t let you go without asking you for your views on the report of the Commission of Inquiry on the former President of the Republic Ameenah Gurib-Fakim. Do you see in the report something that might lead to a conviction?
I have not had the benefit of a thorough reading of the report which, excluding annexes, stretches over 237 pages. My impression, based on a cursory reading of the report, is that there is a prima facie case of violation of certain provisions of the Constitution, including section 28(4) and section 64. However, immunity is an issue and the question whether the ex-president of the republic is amenable to prosecution remains debatable. Upon first impression, I would be inclined to think that immunity could be successfully pleaded by the ex-president.

What do those sections say exactly?

• Section 28(4) of the Constitution reads as follows:

“Where a person is elected to the office of president, he shall not, whilst in office

1. hold any other office of emolument, whether under the constitution or otherwise;
2. exercise any profession or calling or engage in any trade or business.

• Section 64(1) of the Constitution reads as follow:

“In the exercise of his functions under this constitution or any other law, the President shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet except in cases where he is required by this Constitution to act in accordance with the advice or, after consultation with, any person or authority other than the cabinet or his own deliberate judgment.”

• Section 30A (1) of the Constitution reads as follows:

“Subject to section 64(5), no civil or criminal proceedings shall lie against the President or the Vice President in respect of the performance by him of the functions of his office or in respect of any act done or purported to be done by him in the performance of those functions.”

India's Supreme Court starts live-streaming cases, in historic first. Do you think we should follow suit?
Yes, I am in favour of pushing to its ultimate expression our legal tradition of keeping legal proceedings open to the public.