Qs & As
Deportation of Slovak despite Court injunction
The recent extradition or deportation of a Slovak national wanted in his country for narcotrafficking has raised eyebrows in the legal profession and the country about the manner in which a Supreme Court injunction to stay proceedings, waved by the President of the Bar Council as his legal representative, was ignored by the Police and the Slovak national packed off our soil. Lex has been invited to clarify the legal aspects and, in particular, whether such action was tantamount to contempt of court.
* Peter Ulrick, a Slovak national alleged to be a drug trafficker, was deported last wednesday by the police despite a Court injunction order against his deportation. The authorities might have good reasons for taking what appears to be a rushed decision to get the alleged drug trafficker out of the country, but does the police action amount to a contempt of court?
If there are good reasons for a foreigner who is on our soil and is deemed to be an undesirable person and may constitute a danger to the public interest, the home minister would be totally justified to deport him.
* We understand that an injunction is an extraordinary remedy that courts utilize in special cases. What considerations would a court of law take into account before granting an injunction order in those special cases, and how long would an injunction last?
An injunction is a procedure that is filed before the judge in chambers to request a body, the administration or an individual not to do something or to enjoin the person to do something. There are two stages involved.
At the first stage the opposing party is not in attendance. If it is an urgent matter that requires immediate action, the judge will grant the interim injunction and postpone the case so that the other party can come forward with its response to the application.
At the second stage, the judge may order an interlocutory injunction, thereby conforming his interim order or simply dismiss the application. If the injunction is granted, it will last until a main case on the issue in controversy is thrashed out by the trial court.
* Does this mean therefore that the Court would have issued the order only after ensuring that the application for an injunction met all the conditions required in such cases, namely that the absence of such an order would cause irreparable injury to the applicant, etc.?
An interim injunction will be granted if refusing it will cause irreparable injury to the applicant. But there must be a strong case established by the applicant to establish the possibility of irreparable injury.
* What options were available to the authorities to challenge the injunction order if the police held information that the Slovak’s continuing presence in the country would not be in the public interest?
I do not have all the facts of the case. The judge had all the facts before him, and he issued the interim order enjoining the Prime Minister and the Passport and Immigration Office not to deport the foreigner.
If the authorities felt that the order was wrong, the logical decision would have been to go to the judge with the facts at their disposal and move for a revocation of the order and not simply go ahead with the deportation notwithstanding the judge’s order.
A lot is being made of the fact that the order had not been served on the authorities. Service in an urgent matter can be tricky. The police or the Prime Minister could have evaded service and then plead ignorance that they were not aware of the order.
In the case at hand, MrYatin Varma showed the police the judge’s order, but the police played on the technicality of no service having been made to refuse to take account of the order.
* Now that the decision has been taken and the Slovak national has been deported, what remedy would be available to him if he considers he has been unjustly treated by the local authorities?
There is not much he can do. Even if he gives instructions to his lawyers to file an action in court for any remedy, he would need to be present. Now that he is already persona non grata, he would not be allowed to set foot in Mauritius. Unless measures can be taken to get his evidence by other means. But it is most unlikely if not impossible for him to obtain any redress in the local courts.
* If a party fails to comply with an injunction granted by a court, then the party could face criminal or civil penalties or contempt of court. What happens when the authorities do not or refuse to comply with the order?
Injunction or any other court decision, the issue is the same. Failure to comply with a court order or a court judgment amounts to a contempt of court.
* It happened before when a Sri Lankan woman, apparently then pregnant, was deported despite an order issued by former Justice Ahnee. The latter resigned following the deportation. To no avail, it would seem, isn’t?
Judge Robert Ahnee resigned to show his utter contempt for the manner in which not him personally but how the judiciary had been treated in the matter. Here’s another instance of history repeating itself, but as former Judge Vinod Boolell stated on Radio Plus not everyone is a Robert Ahnee. The former judge also stated that if he had been the judge, he would have immediately summoned the commissioner of police to explain why the court order was simply ignored and not complied with.
* The Bar will probably not take this matter lightly and will surely take a strong stand against the authorities’ action in this particular case, but isn’t that all it can do about it?
It will be for the Bar Association to decide. The legal profession has reached a stage where each one is looking after his/her own interest – not the general interest andthe rule of law. It is sad but that’s the stage we have reached in our country.
* As regards the request for the extradition of a suspect, there must be a process to be followed by both parties for the extradition to be implemented. What considerations will be looked into by the local authorities to attend to the application the requesting state?
A deportation is regulated by the Deportation Act, and it is within the discretion of the home minister to decide whether someone must be deported if it is not in the interest of the country that he be here.
An extradition is request made by a State to extradite a person to face criminal charges in the requesting State. The first consideration is whether there is a treaty of extradition between Mauritius and the requesting state. In international law, Mauritius may extradite pursuant to the principle of comity that enjoins States to cooperate so as to maintain good relationships with other States. The Extradition Act contains a number of restrictions on the surrender of fugitives.
The Act provides that
An offender shall not be surrendered to a foreign State where—
(a) the offence in respect of which the request for his surrender is made is one of a political character; or
(b) he proves to the satisfaction of the Minister that the request for his surrender has in fact been made with a view to trying or punishing him for an offence of a political character.
(2) An offender shall not be surrendered to a foreign State unless provision is made by the law of that State, or in the extradition treaty, or in the case of a Commonwealth country, that country has entered into an agreement with, or given an undertaking to Mauritius, that he will not, until he has left or has had an opportunity of leaving that State —
(a) be detained or tried in that State for any offence that is alleged to have been committed, or was committed, before his surrender other than —
(i) the offence to which the request for his surrender, relates or any offence of which he could be convicted upon proof of the facts on which that request was based; or
(ii) in the case of a Commonwealth country, any other extradition crime in respect of which the Minister consents to his being so detained or tried;
(b) be detained in that State for the purpose of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before his surrender to that State, other than an offence to which the request for his surrender relates or any other offence of which he could be convicted upon proof to the facts on which that request for his surrender was based.
In addition, if the Mauritian authoritiesare of the view that the person will not get a fair trial in the requesting State, that person will not be deported.
* As regards the Slovakian national, he is suspected to be a narcotrafficker. Narcotrafficking does not appear to be a non-extraditable offence, isn’t it?
Narcotrafficking may be assimilated to drug trafficking that is provided in the Dangerous Drugs Act. At any rate even if the offence is not extraditable, the person would still be undesirable in our country, hence the deportation order.
Mauritius Times ePaper Friday 29 April 2022
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