PUBLIC RECORD OFFICE
Reference :-
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C.O. 882
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PUBLIC RECORD OFFICE, LONDON
| ALLY WITHOUT PERMISSION OF THE COPYRIGHT PHOTOGRAPH-NOT TO BE REPRODUCED PHOTOGRAPHIC-
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23 July 1909
MAURITIUS ROYAL COMMISSION, 1999:
Sir L. V. DELAPAVE
13.06 Supposing the judge having tried the case at there being no question about the law, and the pulge takes one view as to the effect of the evidence, gulty and the two assessors take the other view of the evidence, not guiltyThen the majority would carry The day.
13,069. A Woodcock, On facts they are on an equal footing? -Yes. on facts they are on an equal footing, and I think it would be fair that it should be so herans these two men would have to be selected of course from the best part of the community; from the more intelligent part
18,070. Who would select the panel of the assessoru ? -I would suggest there should be a list prepared by. Say, the Executive Council, and that these men should asked to accept these functions, which would be imply honorary, because I do not think formerly the assessors were paid
13,071. I take it they would be compelled to attend; they ought to be under the duty to do it if they were put on the panel as jurymen are.
13,072. You would not?-No, but that shorthand writer never attends in the Bankruptcy Court.
[Continued.
and the registrar in order to enable him to make savings, because he considered, at that moment, that the Colony was almost on the verge of bankruptcy.
13.09. What was your position at the time?-1 was acting chief judge, and I saw my colleagues, and, with some difficulty, obtained from them that they would consent to our taking over the duties of the bankruptcy, and I wrote to the Governor, sending him a scheme, showing that I realised a saving of Ra. 17,500, and I pointed out to him, "I am saving just the He figure that covers the salary of the chief judge." answered thanking me very much, and he sent despatch to the Secretary of State on the 20th Sep- tember 1898, enclosing my scheme, with this difference, that, without telling me anything, he cut off Rs. 2,500 more from my own salary, that is to say, be made it Rs. 15,000.
13,093. Were you at that time then drawing Some Rs. 17,500 as acting chief judge P-Yes, I was. time after he telegraphed to me to go to Réduit, and be told me that he had received a cable- With regard to the
As acting 13,094. Just let me be clear about that. horthand writer that you mentioned just now, you
chief judge, would you really have been drawing the would have to have a shorthand writer for your bank.
whole Rs. 17,500 ?-No, I was drawing half the salary ruptcy. I take it ?—No
attached to the office and half the salary attached to my post. The salary was Rs. 17,500. The Governor asked me to go to Réduit, and he said, I have just had A communication from the Secretary of State asking you to accept the post at Rs. 15,000. I declined; at all events, I said I should like to consult my brother judges, because I had no right to consent to the altering of the salary without consulting them, as they had an eventual right to the post. He objected to that. He appealed to my patriotic feeling, and I acepted, understanding that it was only a momentary state of affairs, and as soon as the finances of the Colony were righted my salary should be put back to its former figure.
13,073. It is the only court out of all the courta In England where we insist on having every word taken down. However, you do not -No.
13.074. Would you be able to do altogether without
a shorthand writer?-Yes, altogether.
13.075. The shorthand writer is the same man who
I employed by the Legislative Council?—Yes.
13,076. And he would only have his duties in connection with the Legislative Council?-Yea.
13.077. And probably a lower salary in respect of it He gets Rs. 5,000 divided into two; our depart. Pays Rs. 2,500,
13,078. You pay a regular part of his salary?— Rs. 2,500, and he gets Rs. 2,500 for the other work he does.
13,079. (Chairman.) For the council work ?—Yes, for the council work.
13,080. (Sir Edward O'Malley.) Have you got your scheme of the reduction of the Master P-Yes. Do you want to have it now?
13,081. No, but will you let us have copies of it? ('an you let us have three copies of it?—Yes.
18,082. Because that is the one that I should like to be able to look at ——
13,083. (Mr. Woodcock.) I do not suppose, if you do away with the shorthand writer to the courts, that you would get a man for much less than Rs. 5,000 to do the legislative work?-He does it for Rs. 2,500.
13,084. Yes, because he gete your work for Rs. 2.500 P-No, I think he was first appointed as That man, you see, shorthand writer to the court. can be given other work, because he is very clever.
13,085. As to the two alternative stages-I do not want to go into them again—but you would prefer that there should be a trial of every case by three judges, rather than a trial by one judge and a Court of Appeal? -Yea
13,086. That would be your view -1 think it would simplify matters.
I only 13,087. I think I have got your reasons.
What is the wanted to be perfectly clear about it. salary annexed to your position as Chief Justice P-A very miserable salary.
13,088. What is the amount ?-It is, in fact, Rs. 14,100. The nominal salary is Rs. 15,000, but then the holder of the post has to pay 4 per cent, to the Widows and Orphans Fund and 2 per cent. to the Pension Fund.
13,089. So that you only get Rs. 14,100 net P-Yes, Rs. 14,100 net.
18,090. I think you suggest that the former holder of the office got more than that ?—He got Rs. 17,500. 13,001. When was that P-I should like to make a little speech, pro domo mia, if you will allow me, on this point. The history of the matter in this. In 1888 Bir Charles Bruce asked me whether I could not devise a scheme for the amalgamation of the master
13,095. And it never has been -It never has been. If you will allow me, I should like to mention some. thing further with regard to the matter.
13,096. I do not want to occupy too much of our time over this, though it is a matter of importance ?— I mean to say that Sir Charles Bruce recognised the mistake that he had made, and on three different occasions supported my application to the Secretary of State to have the figure reinstated and each time. the Secretary of State said, "For the present, I regret that I cannot do it." accepting the principle that it should be put right.
13,097. I do not imagine that any recommendations that we may make would probably affect you, but what is your view about the proper salary that should be attached to that office for the future P-At least Ra. 15,000,
13,098. You think that that is the very lowest ?— Yes, I think that that is the very lowest; it would be impossible to give less.
19.099. Do you think, in order to get the work properly done on a new appointment, that, without any reflection, and so on—of course, you have told us the circumstances under which you took it-bat do yon think it would be better to suggest an increase ?--Yes, there is no doubt that you would have more chance to get a good man.
13,100. I must say it struck me when I came out, without going into the thing at all, that the present salary was rather a low one P-Yos, it is the lowest, I believe, of all the English chief justices of all the Colonies. I went through the Colonial Office List the other day, and I do not see another one like it.
(Sir Edward O'Malley.) It is not equal to half what is given in mont Colonies,
13,101. (Mr. Woodoock.) You need not answer this question unless you like. Do you contemplate con- tinuing for some time in your present position, or do you contemplate retiring P-I would be glad to create the vacancy at once supposing you anggest the abolition of the port on vacancy, if a small amount was added to the pension to which I am, at present, entitled-that is to say, I am entitled to Ba. 7,500, and if Ra. 10,000 were allowed me as retiring pension, I would create the vacancy at once,
23 July 1909]
MINUTES OF EVIDENCE.
Sir L. V DELAFAYE
13.102. (Sir Edward O'Malley.) Are you calculating your pension on the reduced salary, or on the salary as it was --On the reduced salary.
13,103. You say you ought to have the pension at least on the salary it was before it was reduced ?—Yes. If the salary had been allowed to me of Re. 17,500, I could probably retire on half of that, because I would have saved during the last seven years, Ra. 3,500 a year. 13.104. That reduction which was proposed to you at Reinit was made in 1898, that is 11 years ago P- Yes. I have prepared a scheme-that is why I wanted to give you this document later on-showing that by ven allowing me this Rs. 10,000, the saving would be, putting down my pension at Rs. 10,000, Rs. 5,600, and and later on, when I disappear, which probably may he before long, Rs. 15,600.
13,105. (Mr. Woodcock.) Is that part of the state- ment that you said you would have copied for us?— You, I have a copy of it, and I will leave this, and I can have another one made.
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13.106. (Chairman.) I understood you to say that you thought a bench of three judges was very ften not the best one. Have you found, as a matter of practice, that the bench of two judges is just as good or perhaps better?-I think, with a bench of two judges, I have found that there is more attention given hy the two judges than by the three. For example, in my own case there was a case argued by counsel and I did not quite catch a point that was raised by Counsel, and, instead of stopping him, I asked my brother judges what the point was. They explained it. I thought of it after, from their point of view, which would not perhaps have been the point of view I would have taken if had tried to understand the I thought they may point from the barrister himself. have done the same on other occasions. You do not bring the same energy to bear when you feel that you have two brother judges by your aide who may at one time assist you on a point to which you have not given sufficient attention in court.
13.107. They share responsibility, you mean ?—Yes, it is divided responsibility.
13,108. (Mr. Woodcock.) And a fortiori that applies to one judge?--Yes.
13.109. (Chairman.) I see here you say that an ordinance would have to be passed if the number of judges was reduced from four to three, empowering the Supreme Court to sit with only one judge in the determination of all undefended matters P--You
13.110. Also authorising the Governor, on the recommendation of the judges, in case they should deem it necessary to hold two divisions of the court, to appoint temporarily a fourth judge, to be the Sub- stitute Procureur General, the master or an experienced barrister. Why should it be necessary to pass an ordinance to do that? Do you mean that it is im- possible to appoint a man to be temporarily a judge of the Supreme Court without an ordinance ?--It depends upon what you decide. Supposing you have to pass an ordinance first in order to empower one judge to sit alone?
18,111. Yes-Very well. There is already an ordinance empowering the Governor, in case the judge challenges himself and it is necessary to have three judges, to appoint a provisional judge. There is an ordinance to that effect.
18.112. Why should it be necessary to have an ordinance to give the Governor authority to appoint somebody to be a judge P-At the request of the judge. (Mr. Woodcock.) What I think the Chairman means is, have not you got any general ordinance giving power to the Governor?
(Sir Edward O'Malley.) There is no need for any ordinance at all. The Governor is entitled to appoint him to not as a judge he may nominate anyone he likes in the Colony to do so.
(Chairman.) It is so commonly done elsewhere that I cannot understand why it is necessary to pass an ordinance here.
(Bir Edward O'Malley.) I think you will find that
ia No.
(Witness.) I have been guided by what is done in the case of the appointment of a provisional judge.
[Continued.
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13,119. (Sir Edward O'Malley.) That was a question. There seem to be a great many cases where the Council of Government seems to have intervened and passed ordinances for doing things which could be done without an ordinance?-They have passed a good many ordinances, no doubt.
13,114. (Chairman.) It has been suggested here by you, and in fact it was very much urged that "an ordinance was passed enacting that all civil suits and "matters to be decided by the Supreme Court should "be heard and determined by three judges, and that no judge, master or magistrate should, under pain of nullity, sit in any case in which a person related to ** the said judge, master or magistrate, either by con-
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sanguinity or affinity in the first or second degree in "the direct ascending or descending line, appeared as ** counsel for one of the parties." but the Secretary of State at the time declined to do that, but you say that that is the practice here --Yes, not to that extent.
that is to say, that a judge will not sit in a case in which his son or his near relative is counsel, but with regard to the agents, that is to say the attorneys, I am not aware that that is the law, and even Sir E. Leclézio, who was certainly perhaps the most honest and impartial judge that we have had, tried cases in which his brother was attorney for parties.
13,115. Now if this is felt very strongly in Mauri- tius, if it is a real difficulty-and I understand from you that you think it is-it certainly is a dificulty that is likely to grow gradually and not to grow less as the Colony grows older?—Yes.
19,118. Does not it seem to you that if it is a genuine objection, the only way to get over it is that the judges should be people who have got no con- nection with the Colony at all ?—That we should have foreign judges ?
13,117. Yes, not Mauritius-born people at all P-I do not know that that would be a good thing.
13,118. Would not that meet the case P-No, I do not think so.
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13,119. There never then would be anybody pleading before a judge who was any connection of his P-I do not think that it would be possible to have only English judges here.
13,120. Would not that meet this case P—Of course if there were judges who had no connection of any kind with anybody in the Colony, that would meet that difficulty without a doubt, but then it would be difficult to find men who could be sufficiently masters of our law and our usages coming from home; in fact it is the great difficulty with the English judges that we have. We have had very good English judges, but sometimes they do not give satisfaction, because of their ignorance of the laws or the language in which they are written, or the usages of the plaon.”
18,121. (Mr. Woodoook.) As we are sitting in private, let me test that for a moment. Take the onse of a man known to me and known to you, Mr. Wood Renton. Did not you find that he dropped very quickly into the practice here --Yes, very remarkably; but he is one of the few men of that stamp that we have had. We have had here a very able judge, whom I liked very much, with whom I continue to correspond, Mr. Moncrieff. He could not speak French when he came out here at all, and therefore he could not read the laws. He studied very hard undar me--I may say so, he was a great friend of mine—and after a year he
was up to the mark.
13,122. No man ought to be appointed who does not know French, but given a man who is a very good lawyer, you do not suggest that there would be any very great difficulty in picking it up -Mr. Moncrief came to this place and said, I come to your place and I have to conform myself to your usages and customs.
19.123. You do not anggeat there would be any real dimoulty about a man of ability, who had got a lawyer's turn of mind, picking up your system, or any system, in a short time --I do not know; we have had a very few of that description. We have had here perhaps three good English judges in all. I remember that when I was appointed Chief Justice I had a letter of congratulation from Mr. Sweet Boots, who was