Mauritian judges and lawyers never speak out against government policies even when human rights may have been abused. In the UK, their counterparts engage in aggressive activism.

Britain?s Chief Justice, Lord Phillips - the most senior judge in England and Wales - recently made remarks on the British government?s policy of stiffening laws as a reaction to the rise in crime rates. British Parliament has adopted a habit of legislating on mandatory sentences, thus removing the judiciary?s discretion in applying sentences. The result, says Lord Phillips, is that ?prisons will soon become full of geriatric lifers?.

We are facing the same problems here, with prime minister Navin Ramgoolam?s tendency to announce - and subsequently legislate on - harsher sentences for criminals as soon as some abominable crime is reported. The latest is a 60-year sentence for rapists; other threats have been vaguer.

But, contrarily to what happens in Britain when politicians play reaction politics at the cost of abusing in turn the criminal?s human rights, the legal profession remains decidedly silent on the matter. This behaviour is not looked upon favourably by foreign human rights lawyers.

Wake-up call

Lord Lester of Herne Hill, QC, human rights lawyer and life peer of the House of Lords, was the chief guest of the Bar Council last year for a two-day conference on the matter. He told Mauritian lawyers and judges off for not being actively engaged in judicial activism. Speaking of England?s Human Rights Act 1998 and the constant criticisms coming from politicians and conservative newspapers, he said judges and lawyers had to fight to uphold it and stop the abuse of human rights. ?We (legal profession) created the revolution, not politicians. The Mauritian bar should wake up?, he told a silent audience made up of Mauritian lawyers.

As it stands, the promulgation of the Human Rights Act takes into account the European Convention on Human Rights but the British Parliament has not yet ratified the convention and thus, it is in constant danger of being attacked. Yet, according to Lord Lester, the Human Rights Act has made a tremendous impact on lawyers and judges? mindset in the UK. And speared them on to aggressive activism.

Former Chief Justice Rajsoomer Lallah who presently sits on the UN Human Rights Committee, shared the views of Lord Lester. He is of the opinion that one shouldn?t wait for Parliament to decide and that civil society as well as members of the legal profession should be engaged in human rights activism. ?Unless you have all been corrupted!? he added.

The two human rights militants also agreed on another point; only an aggressive judicial activism can protect human rights from the abuse of politicians and conservative people. But Mauritian judges do not engage in activism.

Preserve secrecy

The judiciary in Mauritius is rarely heard and never seen. This aloofness is deliberate and judges call it their duty to preserve secrecy. English judges, on the other hand, often make public comments on legislations and policy matters.

Members of the Mauritius Bar Association very rarely come forward to express themselves on matters of human rights. Attorney general Rama Valayden used to be a very militant lawyer; Rex Stephen is another one but they are generally rare. Lawyers in Mauritius generally make headlines when they are defending high-profile cases; the rest of the time, they are engaged in politics.

This lack of interest of lawyers regarding matters of human rights was also noted by Rajsoomer Lallah, last year, at the Human Rights conference. He asked of the lawyers present: ?How many of you have read the report of the UN Human Rights Committee?? No one had. He also asked why the Bar Council hadn?t deemed it appropriate to hold a seminar to discuss the report and he did not get an answer. Lallah also expressed concern over what he calls the ?deafening silence? of the legal profession when Parliament voted the Prevention of Terrorism Act in 2002: ?There were possible violations of human rights and yet I didn?t hear a single one of you speak out.?

Members of the legal profession are still not speaking out. Neither are the judges. Yet the threat of increasingly heavier penalties is right here. In England as in Mauritius, Government believes that people should be locked away forever.

It is not known whether the steadily increasing prison population is the result of a crime wave or a punishment wave. In any event, human rights somewhere somehow are being violated.

Whether it is the victim?s or the perpetrator?s.