Democracy and Political Governance Chapter 3 section 28(2)(a) could make the head of the executive indebted to the legislature. This would threaten the principle of separate powers. However, the officials and other persons the CRM interviewed did not see this issue as a challenge. Chapter 3 210. On the surface, the arrangement is satisfactory. However, it has elements that present a challenge. First, the arrangement raises a fundamental political question of whether communities lack faith in their national institutions and feel safer when protected by an external ‘power’. If so, they need to be persuaded that they are safe and that they can get justice under Mauritius’s own national institutions without recourse to the legal institutions of a former colonial power. They also need to know that it is costly and that, although justice is priceless, they might as well get what they can locally than continue looking to Britain for legal redress. This does not mean, of course, that Mauritians should not sometimes appeal to the relevant supranational legal systems in their region (like the SADC and the Common Market for Eastern and Southern Africa, or COMESA), on the continent (like the African Human Rights Court) and elsewhere. One could even argue that the arrangement shows that British rule continues, however subtly. In effect, the judicial hierarchy of the country still looks to the former colonial power. More worrying, it is bound to remind those citizens who are more partial to French traditions that “they were defeated”. 211. This could breed future instability and damage democracy and good governance, although the threat might seem insignificant. Secondly, appealing to external and distant institutions is costly. Furthermore, the CRM learnt that the government of Mauritius invited five law lords of the Judicial Committee of the Privy Council of the United Kingdom to hold a one-week session in September 2008 to hear pending appeals of the Supreme Court of Mauritius. It was not clear whether this was intended to be a permanent arrangement of this court. If it is, then it raises the question of how litigants of modest means could file final appeals if they were all to go to London. It also raises the question of whether appeals to the Privy Council risk becoming, in practice, a preserve of the rich. Were this to happen, then the rule of law, democracy itself and general good governance would suffer. The Supreme Court is subordinate to the Judicial Committee. Its judges also serve on the civil and criminal appeals divisions of the Supreme Court. However, its judges are different from those who would have decided cases when they were being argued in the Supreme Court. Intermediate courts are subordinate to the Supreme Court. District courts are the lowest courts. 212. The present hierarchy poses at least three challenges. The first challenge is the organisation and functions of the Supreme Court. They are rather confusing. Yet, they should be very clear. The dual function of the court causes the confusion. The court sometimes hears The judicial system, the legal system and the judicial hierarchy 207. On the judicial system, it was ascertained that, presently, the appointment of judges of the Supreme Court involves: (i) only the president, after consulting the prime minister (chief justice – section 77[1]); (ii) the president, on the advice of the chief justice (senior puisne judge – section 77 [2]); and (iii) the president in accordance with the advice of the JLSC (puisne judges – section 77[3]). Parliament is not involved at all in the appointments. The role of the JLSC is minor. 208. It is important to understand the Mauritius legal system and the hierarchy of the judiciary, which the CSAR does not describe fully. The legal system fuses the French and British legal systems or traditions and reflects the country’s history. The Dutch ruled the archipelago between 1598 and 1710. The Dutch did not leave much to the island in the legal field, apart from some Roman law and Latin phrases. The French ruled Mauritius for about 100 years between 1715 and 1810 when the British (1810–1968) invaded the island. In the Treaty of Versailles, which marked the French capitulation, it was agreed that the French living on the island would retain their culture, language, religion and law. This is the reason for the immense influence of French law – based on the Napoleonic Code – on the island. French law is the basis of Mauritian civil and criminal law. However, the English introduced commercial law, judicial review and procedure. The courts therefore operate on common law principles. The CRM learnt that the official language of the courts is English, although litigants can also use French. 209. 110 Sections 81 to 83 of the constitution describe the court hierarchy in Mauritius. The Judicial Committee of the Privy Council of the United Kingdom is the highest court of the country. Section 81(1) of the constitution mentions only the “Judicial Committee” and does not include “of the Privy Council of the United Kingdom”. The CRM wonders why this phrase is omitted. More importantly, the CRM was interested to find out whether the appeal to the Judicial Committee of the Privy Council of the United Kingdom presents a challenge. The reply was that the arrangement was appropriate, and that most Mauritians want it to continue. This is because it reassures the communities (small minorities) that they have judicial protection. Democracy and Political Governance 111