‘Hearing no evil and seeing no evil…can encourage a lot of evil’ — Justice Sik Yuen

Kistnen Case & The Judicial Inquiry Report

* ‘The Magistrate could not on the basis of the evidence presented to her pinpoint any suspect. This is why she has requested a full-fledged investigation’


Following the report of the judicial inquiry into the mysterious circumstances of the death of former MSM activist Soopramanien Kistnen which has attributed the cause of death to foul play, Magistrate Mungroo-Jugurnath has recommended a full investigation into what appears to be a murder case. Lex analyses the various aspects of this investigation, in particular the boundaries between the mandates of the DPP and the police, and cites a judgement of former Justice Bernard Sik Yuen which advocates a more proactive role for the former.

* Recent press reports indicate that the report of the judicial inquiry into the mysterious circumstances of the death of former MSM activist Soopramanien Kistnen, initially deemed to be a case of suicide by the police, has attributed the cause of death to foul play. In the normal course of things, what is to be expected as follow-up to the report of the judicial inquiry?

Magistrate Mungroo-Jugurnath has recommended a full investigation into what appears to be a murder case. She has also recommended that former minister Sawmynaden be interrogated anew and light be shed on the electoral expenses at the 2019 elections. As the law requires, she has sent the file with her conclusions to the Director of Public Prosecutions (DPP), who has subsequently requested the police to investigate the case further.

* We understand that the purpose of a judicial inquiry is to establish the facts, find out what happened and who may be accountable. It seems that no suspect has been identified by Magistrate Mungroo-Jugurnath in her report. Does this mean that the Magistrate did not or could not find reasonable cause to suspect any person or group of persons who might have committed the crime?

Yes, the Magistrate could not on the basis of the evidence presented to her pinpoint any suspect. This is why she has requested a full-fledged investigation into the circumstances of the murder.

* The DPP has instructed the police to probe further into specific and new angles of this murder case. Is the police bound to, first, comply with the instructions of the DPP, and second do so within a reasonable timeframe?

This a tricky but very pertinent question.

According to a press report published in last Sunday‘s edition of l’express, a police officer would have expressed the view that the DPP cannot tell the police how to investigate a case. In other words, the investigation is not within the purview of the DPP.

Neither the DPP nor his office is equipped for that purpose. Such investigations fall within the mandate of the police and are therefore carried out under the responsibility of the latter. However, if an investigation appears to have been not properly done and the DPP requests a further investigation, are not the police bound to comply? What if the police do not comply or drag the investigation for months or years?

* How do you react to comments made on social media and in the press that common sense would dictate that a different team of investigators should be tasked to undertake this assignment?

The Commissioner of Police should live up to his constitutional mandate that guarantees the independence of his office and appoint without hesitation a new team of investigators for this task. This in light of the inconsistencies and half-truths that came out during the judicial inquiry.

* It appears the current DPP’s term of office will come to an end within the next 12 months. The Office of the DPP and its next director will surely follow up on this particular case, isn’t it?

We all know that the present regime tried to bring the office of the DPP under political control through the Prosecution Commission Bill or even going to the extent of the (failed) attempt to get him arrested.

Would it be reasonable to wonder whether the police investigation could drag on? What will happen when the current DPP’s term come to an end? We’ll hopefully see a new incumbent, who will live up to the mandate of the office, as provided for by section 72 of the Constitution, which also guarantees its independence.

* We also learn from press reports that the Magistrate has called upon the police to investigate further into the alleged “emploi fictif” (fictitious employment) of Simla Kistnen, widow of the victim, as well as into the contracts allocated in the context of the emergency procurements of drugs and medical equipment during the first wave of the Covid pandemic, and also for cleaning services in parastatal institutions, etc. Would it again be reasonable to wonder that we might end up with the same results following a re-examination of different aspects of the case?

It all depends on which institution will conduct the investigation? ICAC? The police? They’ll hopefully deliver on that recommendation of Magistrate Mungroo-Jugurnath.

* Another “hot potato” in this saga relates to the so-called ‘Kistnen Papers’, which point to alleged illegal electoral campaign financing/illegal cash payments in excess of that permissible by law at the last general elections in Constituency No. 8. Magistrate Mungroo-Jugurnath has apparently recommended that the police, which had already started an investigation into these allegations, should go deeper into this matter. What’s your take on that?

Suren Dayal must have lodged a private prosecution against the Prime Minister for alleged unlawful electoral expenses on the premise that nothing substantial will come out of a police investigation. This is indeed ‘hot stuff’, and only time will tell whether a new investigation as recommended by the Magistrate will produce any concrete results.

* Mr Dayal’s case is built on the basis of information contained in the ‘Kistnen Papers’, which were in the custody of the late Soopramanien Kistnen. Whose responsibility is it to confirm the veracity or otherwise of those documents?

It will be up to forensic and handwriting experts, who fall under the authority of the police force, to verify the authenticity of the papers. They’ll hopefully carry out an objective examination within a reasonable time frame. It seems however those papers had been sent to the police a long time back, and it’s not known what came out of their investigation.

* Could it be envisaged that the DPP, who under section 72 of the Constitution alone is responsible for advising prosecutions, might at some point in time step in and take over the case in relation to the Kistnen Papers?

Here an observation made by Justice Sik Yuen in the Bacha case in 1996 on the powers of the DPP comes to mind. His comments on the powers of the DPP are as follows:

‘I am afraid that the policy, if there had ever been one, whereby the office of the Director of Public Prosecutions would see no evil and hear no evil until a declarant has come forward either to force open its eyes or to blare out in its ears open secrets, is not consistent with the ideals of upkeeping the rule of law. Hearing no evil and seeing no evil by persons occupying responsible posts can encourage a lot of evil.’

In other words, Justice Sik Yuen is urging the DPP to be proactive in matters of investigations by the police.

* Published in print edition on 4 February 2022

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