There are in-built safeguards to protect the citizen against arbitrary arrests. We have an independent judiciary. So what better safeguards to have Magistrates to monitor arrests in other less serious offences Mauritius will find itself at odds with its international obligations if it does not wake up and clean the stale provisions on its statute books. Take section 5 (1)(k) of the Constitution which authorizes deprivation of personal liberty in the execution of an order of the Commissioner of Police, upon reasonable suspicion of having engaged in, or being about to engage in, activities likely to cause threat to public safety or public order.
The Human Rights Committee has already found this power to be incompatible with Article 9(3) and (4) of the International Convention against Civil and Political Rights. We cannot, as a signatory to this instrument, remain indifferent to our international obligations. The criminalization of private consensual homosexual acts between adults and the criminalization of defamation are obvious examples of the incompatibility of our statutes with our obligations arising under the treaty.
For the sake of this present article let us stick to section 5(1)(k) of our Constitution. The power to arrest is subject to an order of the Commissioner of Police and must be in relation to a case likely to cause a threat to public safety or public order. Section 5(1)(k) was enacted in a specific context to prevent civil riots and disorder. It appears that it is now being interpreted to cover all kinds of situations where crime is involved. This approach diametrically conflicts with the stand taken by the Supreme Court in the case of Dahoo v Commissioner of Police where it was observed that an arrest may be unlawful even if the arrest was within the powers of the police, if there has been an improper exercise of such powers.
Regarding the alleged practice of the police in Mauritius to arrest as a matter of course when there is a power provided under an enactment, the Court had this to say: “We indeed feel it appropriate to draw to the attention of the police and of their legal advisers that even where there is a power of arrest it must not be exercised as a matter of course: the discretion to exercise must be exercised in a reasonable manner.”
Arrest may be authorized by law upon reasonable suspicion of a person having committed or about to commit a criminal offence. There must be incriminating evidence against that person in the first instance or at least reasonable cause to suspect that a person may be guilty of an offence warranting his arrest. There is unfortunately a misconception that a person can be arrested for the purpose of an enquiry. That is wrong as such an approach makes total abstraction of the fact that the liberty of a person is a fundamental right guaranteed by the Constitution and cannot be ousted on mere flimsy grounds.
A police officer can arrest a person without the need for a warrant in a number of situations defined by the law. First, under section 22 of the District and Intermediate Courts (Criminal Jurisdiction) Act I cases where a private person may effect an arrest. Second, where a person has been charged of a crime or of dangerous wounds inflicted by the party arrested. Arrest by a private party is provided for in cases where a private person sees a crime being committed or attempted to be committed or a dangerous wound being given. A police officer may arrest any person found to be idle or disorderly or a rogue or vagabond.
There are also other provisions where the police can effect an arrest without a warrant under the Protection from Domestic Violence Act and the Fire Arms Act. An arrest under the Road Traffic Act for a fatal accident can be done only where the Commissioner of Police is satisfied that the driver is not likely to present himself to the court or to the police. There is no mandatory duty on the part of the police to effect an arrest in every case of fatal accident.
Finally, section 13F empowers a police officer to arrest a person whom he suspects is about to commit an offence which will endanger public safety or public order. This section in fact translates section 5(1)(k) of the Constitution into an enactment. In all other cases the police require a warrant signed by a Magistrate to effect an arrest.
So when we hear that the law is an ass, we should be careful. There are in-built safeguards to protect the citizen against arbitrary arrests. We have an independent judiciary. So what better safeguards to have Magistrates to monitor arrests in other less serious offences.
* Published in print edition on 4 November 2010
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