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Barrister Jean-Claude Bibi on “la justice” in Mauritius today

05.03.2012


The idea of “Law Day” has never, as far as we are aware, been marked in Mauritius. But Attorney General, Yatin Varma has invented it in the run-up to Independence Day 44 years after independence. He has organized a sessions of free legal advice in a number of Citizens’ Advice Bureaus. And a journalist in L’Express Saturday has written an article in which he quotes Jean-Claude Bibi briefly. LALIT asked Jean-Claude Bibi if we could get some more of his ideas on the subject of “la justice” and “le droit”, and he sent us his notes for the interview and permission to publish them.

There is widespread confusion, he accurately writes, regarding the concepts of law and justice. Most people including many lawyers believe that “le droit” (law) and “la justice” are more or less the same and/or equivalent. Hence a court of law in France is called “le Palais de la Justice” even though more often than not litigants (specially those who lose) are far from happy with its legal decisions and refuse to accept that it has done justice to the case.

This confusion seems to be deliberately maintained by the powers that be. Whilst it is true that it may happen, often by sheer coincidence that a decision of a court of law may seem from the perspective of a victim to be “justice”, in reality the two concepts of law and justice are widely far from each other and have no common origins.

To put it briefly, often the law pretends to be just.

More often, what is believed to be just by many seldom becomes law.

This preamble seems to me necessary since questions referring to our “systeme judiciaire” and the term “judiciaire” unfortunately imply that this system is meant to dispense justice when in reality it administers and interpretes law in a closed system, closed because it is enclosed within an encircling mesh of vested economic, social, cultural and political interests hostile to fundamental or radical change.

Such a mesh of interests have a lot do with law. Indeed law is one of several instruments used to protect and maintain specific and identifiable interests. Law is even used to prevent necessary change that would be regarded by many as economically, politically and socially just.

It would be presumptuous of me as a lawyer to claim that I practise “justice”. Just as other lawyers, I simply practise law. Justice, specially social justice, is quite another matter, a much grander and,philosophically, a much more significant perspective, and one that our courts of law keep far away from whilst simultaneously posturing to be Justice’s most ardent defenders.

After this precautionary note, he then deals with questions posed by a journalist:

Q: What are the main obstacles to access to the judicial system? Is it poverty/meager financial resources?

A: The judicial system is broadly divided in two: criminal and civil. And, there is hardly any difficulty for the poor/ordinary citizen (“ti dimunn”) to have access to what you call “les services” of the criminal judicial system. It can be said they have too much “access” as accused parties or as victims of theft, of violence, of dangerous driving, etc.

Yes, the Bail Court has for some time been giving consideration to the financial means of an accused when determining the quantum of bail.

As regards the civil courts, it is quite true that the expenses involved in a civil action are quite high when we consider the level of income of most citizens. Yet, it does not seem that high costs prohibit many to file civil complaints in respect of any imaginable incident. We seem to be a very litigatious people. Almost like Americans.

While appeals represent additional costs, it is very rare that litigants or accused parties give up because of this. Litigants, and those who are convinced, as most are, that they should win, tend to go all the way.

Yes, appeal to the Privy Council is very expensive. But as you observe, there are more ways than one to raise money. The issues involved may make it possible to have access to money. Not every case can go to Privy Council. Often leave has to be obtained from the Supreme Court.

Legal aid is available for both civil and criminal cases. For example at Assizes, there is no difficulty to get legal aid. You just have to check with Supreme Court for the conditions attached to legal aid. Of course low or no income ensure provision of legal aid.

Quite a few experienced and capable lawyers agree to take legal aid cases. I do not know of any case where lawyers have refused. Barristers also do pro bono work.

When the question is asked whether there is “Justice a 2 vitesses?”, Jean Claude again refers to his preamble since people often use the term “justice” when in reality we are dealing with law and its complex and convoluted mechanisms.

Can we realistically claim that the realities of a class society render everybody “equal under the law”?

A key dimension of societies is the distribution of power and how to keep the powerful in check under the law is a continuous problem. Laws operate mostly within a State and it can be observed that States and their agents repeatedly violate the law (and common sense notions of justice) violently and far too often with impunity, Jean-Claude says, and then gives examples.

-Torture occurs in dictatorships and democratic states alike.

-Witness the illegal and unjust treatment meted out to the people of Diego Garcia by democratic Britain.

-Note that no general from the Pentagon, no US president is ever prosecuted for war crimes.

-Remember that apartheid was law in South Africa.

Equality under the law? He says this is more than a slogan than a real principle.

“I have to repeat myself,” Jean-Claude Bibi writes: “Do not confuse law with justice and then you will see that law has more than 2 vitesses. It can have 5 or 6 and even, “march arriere”. As in a car. Yet, more often than not, it is repetitively automatic. Again, just like another car.

“I would like to mention that language is a formidable obstacle in Mauritius,” Jean-Claude Bibi writes, “It is worse than an obstacle. It prevents many citizens to understand the real issues.”

English and French are not readily understood by most Mauritians, he says, and legal English and French are much more difficult to understand . Even lawyers do not find it easy, he says.

“Just try to read a title deed to a plot of land and other actes notaries.
You will find yourself in the Middle Ages.”

JCB