The last recommendation of the Chief Justice/Senior Puisne Judge on the appointment of Senior Counsel has given rise to some controversy. Two or three barristers of long standing are challenging the decision. Under section 9 A of the Law Practitioner’s’ Act, the President of the Republic appoints Senior Counsel and Senior Attorneys on the recommendation of the Chief Justice. The law is silent on the criteria that the Chief Justice applies in the selection of Senior Counsel and Senior Attorneys, except that the lawyers selected should have been in practice for 15 years.

Despite the absence of criteria in the legislation, there is no doubt that the Chief Justice would consider the knowledge of the candidates in law, their skill in advocacy, the number of cases in which they have appeared, their presentation of a case in court, their reputation for good conduct and the like. In addition, there is no doubt that the Chief Justice would consult his/her colleagues and possibly senior members of the profession to get their ideas.

The controversy has prompted the government to come up with the Senior Counsel and Senior Attorney Bill, to review the law. Under the present legislation, the whole process surrounding the appointment of senior members of the profession is shrouded in opacity. No one knows for sure what factors have always motivated the choice of a particular candidate.

The Explanatory Memorandum to the Bill reads: “The object of this Bill is to provide for the setting up of a Recommendation Panel which will henceforth be responsible to make recommendations to the President of the Republic for the appointment of a barrister as Senior Counsel for the Republic of Mauritius and an attorney as Senior Attorney for the Republic of Mauritius.” The Bill establishes a Recommendation Panel which will be composed of the Chief Justice as chairperson; the Senior Puisne Judge, the next two senior-most Puisne Judges, the Attorney-General, the Chairperson of the Bar Council and the President of the Mauritius Law Society Council.

The Bill provides that in selecting a senior member of the profession, the Panel should be guided by the following criteria: any contribution made by the person to the development of the law; any specialised skill possessed by the person in the legal field; any academic or other distinction obtained by the person in the legal field; the good standing of the person in the legal fraternity; or any other trait of distinction demonstrated by the person in the practice of law, including but not limited to competence, integrity and a sense of fairness. The list is not exhaustive and the Panel may consider additional ones.

In the United Kingdom, the choice of King’s Counsel (KC) is done by a King’s Counsel Selection Panel that is composed of 11 members. The current members are two retired senior judges, senior barristers, senior solicitors and lay, that is not legally qualified members. The Panel is chaired by a lay member. There are no sitting judges nor a government minister on the panel. An explanation for the composition of the British panel is given as follows: “The KC Selection Panel’s composition is motivated by ensuring independence, fairness, and expertise in the rigorous selection process for KC appointments. A diverse panel, led by a non-lawyer lay member and including senior judges, barristers, solicitors, and other lay members from fields like business and human resources, brings diverse perspectives and accountability, ensuring public confidence and a comprehensive evaluation of candidates based on consistent excellence in advocacy.”

Barristers in the United Kingdom submit an application to become a KC. Sir Paul Morgan who has been on the panel for two years reflects that the selection is “a detailed and intensive process. Decisions are not taken lightly and the standards we expect of applicants and ourselves as Panel members are high. We are looking for excellence, not the day job done well”. The decision of the KC Selection Panel can be challenged by submitting a complaint to the King’s Counsel Appointments Complaints Committee with details of the grounds for complaint within 60 calendar days of the competition outcome. The committee comprises a senior judge, barrister, solicitor, and lay person, that will consider the complaint.

In the new Bill in Mauritius, there is no procedure on how a challenge may be made against the decision of the Selection Panel. If there is a challenge, it would be by way of judicial review to the Supreme Court. It should be emphasized that the decision of the Selection Panel would be an administrative one and not a judicial one. It is to be hoped that challenges in the process of the selection of senior members of the profession will be a thing of the past. But there is no guarantee. The presence of the Attorney General, a member of the government, is causing some apprehension. Those who are expressing concerns believe, rightly or wrongly, that the selection would be politicized.

The presence of four independent judges on the panel should comfort those who are sceptical about the presence of the Attorney General on the panel. Though it is impossible for the Attorney General to influence the panel, the perception may be otherwise.

In the United Kingdom, it is the firm belief that panel needs to be seen as independent and able to provide an impartial assessment of applicants’ qualifications and experience. Therefore, the exclusion of the Attorney General and Solicitor General from the panel is a procedural safeguard to ensure a fair and impartial selection process. In Mauritius, only time will tell us how public opinion will assess the selection panel.