As laypersons, not necessarily familiar with the niceties of the laws protecting our essential civic and democratic rights, we can nonetheless feel the troubled times the country is going through with the disturbing turn that the ongoing conflict opposing the Police and the Office of the Director of Public Prosecutions has taken this week. In his first public stand, through a press release issued on 28 February 2023 concerning the decision taken by the Director of Public Prosecutions (DPP) not to challenge the Moka District Court senior magistrate ruling to grant bail to Bruneau Laurette, accused of illicit drug possession, the Commissioner of Police (CP) made known his objection. He has again, through his representative in court, taken issue last Monday, with the DPP’s stand not to object to the bail application of lawyer Akil Bissessur following his latest arrest by the Police Headquarters Special Striking Team (SST) for what has become popularly known as “drug posting”.
We took the view when the first Police vs ODPP confrontation became public out that this was a first in the annals when a holder of a constitutional post came out publicly against the decision of another constitutional head, putting in doubt his legal judgement, whereas the obvious and reasonable alternative available to his office would have been a timely challenge of the magistrate’s decision in the Supreme Court on his own steam. This time round, the Police is appealing to the Supreme Court to have the bail order of the Magistrate of the Mahebourg District Court for lawyer Akil Bissessur and his close ones reversed. That’s the reasonable thing to do in the present disturbing circumstances.
In this week’s interview to this paper, constitutional lawyer Milan Meetarbhan refers to the powers of the DPP as enshrined in our Constitution to take over and continue any criminal proceedings that may have been instituted by any other person or authority and to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority. These powers are vested in the DPP to the exclusion of any other person or authority. M. Meetarbhan asks: ‘The question that may arise is whether the rule also applies to bail and other applications made prior to a formal charge being lodged. In other words when does the DPP’s control start?’ The guidance of the Supreme Court in response to the appeal of the Commissioner of Police will hopefully resolve the current imbroglio by delineating clearly the jurisdictions of these two important organs of State.
As regards the police force itself, which is so vital to our collective well-being, what has regrettably come to the fore recently have been a succession of highly mediatised events that more or less date back to the creation of the Police Headquarters Special Striking Team last year and that have attracted a lot of controversies and opposition. At a time when drug is reportedly available in many agglomerations, when the ruling dispensation has claimed a relentless fight against drug warlords and mafioso with however little to show in terms of legal closure or condemnation of any big fish, there may have been good reason on paper to launch the SST as an important adjunct in that battle. But the perception of the SST riding high-handedly over the basic rights of citizens in their highly mediatised arrests and any abuse made of provisional charges or search warrants, the tracking of known opponents to the regime, the accusations of planting evidence on selected targets, the allegations contained in the ‘Vimen Leaks’ — all these have come under sustained attacks from the Opposition and from the activists-lawyers and do not help improve the police’s image.
We must bear in mind that when the founding fathers negotiated and approved the Constitution at independence, one of the foremost questions in their minds might have been ensuring a proper set of checks and balances so that our young nation and its plural communities do not feel threatened by a single force, namely the Police, going overboard in exercising the very substantial powers it was granted. Those checks and balances were ingrained in the constitutional power granted to the ODPP in all matters pertaining to the proper safeguards on police arrests, charges and prosecution in courts and, as far as possible, an independent judiciary.
There are no reasons why the Police should feel constrained in their necessary policing duties or tracking criminals on reasonable grounds or suspicions, by the fact that the DPP acts as counter-poise for legal advice and sole prosecuting authority in all criminal matters. Our own non-legal reading is that the CP’s role ends when the file is transferred to the ODPP for advice and appropriate action, depending on the solidity of the enquiry. By no stretch of the imagination and the Constitution can the CP be considered as an instructing client for the ODPP. The CP would be poorly advised to use such devices or private lawyers to try to bypass the constitutional prerogatives of the ODPP in prosecution matters, both were intended to collaborate to meet the ends of justice in society.
Mauritius Times ePaper Friday 30 June 2023
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