“The decision to deprive a person of his liberty and whether the person should be charged with an offence or not is not made by the police”

Interview: Milan Meetarbhan

‘The last word on whether a person is granted bail or not rests with the judiciary and not with the police’

* ‘If law enforcement authorities talk of narco-politicians, then either they have said too much or too little. They must come clean with the information they have’

* ‘I do not believe that the conditions for free, fair and credible elections in accordance with international norms are fully satisfied in the country’

Constitutional lawyer Milan Meetarbhan shares in this week’s interview his views on the conflict opposing the Commissioner of Police and the ODPP, as well as on the postponement of municipal elections being challenged in court by a group of activists and hopes for a prompt determination by the Supreme Court so as not to go against the will of the electorate regarding the established mandate. He also comments on the opposition parties delaying a resolution of the issues that are preventing them from coming up with a workable alliance.

Mauritius Times: The Police Headquarters Special Striking Team (SST) has hogged the headlines these past several weeks, tracking, as the Team’s head puts it, drug traffickers as well as “narco-politicians”. The SST seems to have the support of the Prime Minister, who this week took to task those in certain institutions who would have been lured by the easy money of drug traffickers and “media sensationalism” around what is perceived as politically motivated arrests. How do you react to that?

Milan Meetarbhan: The Commissioner of Police is responsible for operational matters of the Police whereas the Minister for Home Affairs may give to the Commissioner of Police such general directions of policy with respect to the maintenance of public safety and public order as he may consider necessary, and the Commissioner must comply with such directions or cause them to be complied with.

In his public statements and in Parliament, Pravind Jugnauth, the minister responsible for the police, has been very supportive of the Police and presumably he is satisfied that directions, if any, of policy with respect to the maintenance of public safety and public order he may have given to the Commissioner of Police have been complied with.

There is in the country, as has been stated by many in recent years, aserious breach of trust in our institutions. The Police is one of the main institutions in the country which require the full confidence of the people. The question should not be about the media but about why there may be lack of trust in our institutions and what these institutions themselves are doing to deserve trust or restore trust.

* What the Prime Minister’s stand really indicates is that the SST, whatever its legal standing, will keep on chasing drug traffickers (which is what is expected from that Team) and “narco-politicians”, especially those perceived to be against the current government, unhindered – unless checked by the judiciary. Would that be a fair way of putting it?

The people do not know who these narco-politicians are and, if there are any, that’s a very serious matter.
If law enforcement authorities talk of narco-politicians, then either they have said too much or too little. They must come clean with the information they have, conduct proper investigations, and bring the matter before the courts at the earliest.

* We witnessed last Monday, 26th June, the police taking issue with the Office of the DPP’s stand not to object to the bail application of lawyer AkilBissessur following his latest arrest by the SST for what has become popularly known as “drug posting”. The police displeasure with the ODPP was expressed in probably a bit too strong words. Are there rules or conventions as to who or which institution has the upper hand in such matters?

Under our Constitution, the DPP is empowered 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. There is therefore no doubt that the DPP can take over proceedings or discontinue proceedings started by the Police represented by Counsel of its own choosing.

The question that that may arise in the case you mention 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?

* It appears that the DPP generally goes along with or even supports police’s objections to bail applications by suspected drug traffickers. There is a suspicion of drug trafficking in the case involving Akil Bissessur, and we saw the ODPP not objecting to his release and his close ones on bail. What do you think could have motivated that decision?

I believe that the ODPP has in this case as in all other cases applied the standard test relevant to the facts of the case to decide on the way forward and the stand that has to be taken.

The ODPP is at the service of the administration of justice, and it must also ensure that there is no deprivation of liberty in breach of the constitutional right to liberty.

* This present tussle opposing two major organs of the State – the Police and the DPP -, as seen in the Akil Bissessur case, appears to be on course to turn into a major institutional or even constitutional crisis in case things were to escalate. That does not bode well for the rule of law in Mauritius, does it?

There are jurisdictions where the police conducts investigations but the decision to deprive a person of his liberty and whether the person should be charged with an offence or not is not made by the police.

In Mauritius the Supreme Court has strongly defended the right of the judiciary to decide on whether bail should be granted or not. Our judges went so far as to declare unconstitutional a law which sought to usurp the powers of the judiciary to decide on bail. So, the last word on whether a person is granted bail or not rests with the judiciary and not with the police.

In the same vein, the hue and cry about the DPP not deciding to appeal against a judicial ruling that someone should be released on bail was in my view misconceived as the appellate court could very well have upheld the decision of the magistrate and it’s not the DPP who would have had the last word.

* There is also the nagging problem of Provisional Charges, which keeps coming up from time to time. That is said to be an important instrument used by the police when it is of the view that there is reasonable cause to suspect that a specific person committed a crime, but it would seem that in the absence of a Police and Criminal Evidence Act an abuse is made thereof in some cases. What does the law and judicial pronouncements inform us about that instrument?

There has been a lot of controversy about the provisional charge which has no statutory basis. But we need to have a broader debate about powers of arrest and detention because there is a fundamental right guaranteed by the Constitution which is at stake. The right to liberty is the rule and deprivation of liberty is the exception.

It is not always clear as to why a suspect is being deprived of his liberty even if he is ultimately charged. There must be clearer legal guidelines on this major subject. There is no room for arbitrariness or unfettered discretionary powers.

The issue of the warrant must also be revisited. Can the head of a unit within the police issue a warrant authorising his own men to execute a search. The Constitution not only guarantees the right to liberty but also that of the privacy of our homes.

* On the politico-legal front, there is the initiative taken by different opposition parties, both inside and outside Parliament, to challenge the amendment to further postpone municipal elections for a further two years. One would expect the Supreme Court to sit on those cases as a matter of priority for the challenge to have any meaning. Do you expect this case could upset the majority’s applecart?

At the close of proceedings before the Privy Council in the case regarding extension of the mandate of municipal councillors by one year in Trinidad and Tobago, the judges said that they are aware of the need to give their judgment as quickly as possible, and they did just that. We know that in Mauritius, electoral petitions challenging results of elections in some constituencies have not yet been decided almost four years later.

The legal challenges to the decision to allow councillors who had been elected for a six-year mandate to remain in office for a period of ten years is certainly one that requires urgent attention by the courts.

The fundamental issue in any case relating to the extension of the mandate of elected officials is whether the legislature has taken upon itself the right to decide for the electorate and grant a longer mandate than that which had initially been granted by the people who voted for the elected officials.

* It seems the Electoral Commissioner (EC) has responded with his comments on the memorandum submitted by the Labour Party-MMM-PMSD regarding the organisation of the next general election. The Opposition leaders have earlier obtained an undertaking from the EC about the non-recourse of computer rooms during old-fashioned ballot-counting. Do you think the Electoral Commission will ensure that the right conditions for free and fair elections will be present next time round?

I do not believe that the conditions for free, fair and credible elections in accordance with international norms are fully satisfied in the country. I do not believe that the government of the day has shown any willingness to acknowledge that perfecting the electoral process is a continuing process.

Not everything is under the control of the Electoral Commissioner. Some matters have to be set right by the legislature. I must say that the appointments made to the Electoral Supervisory Commission in spite of reservations expressed by the Leader of the Opposition will not help to secure public confidence.

The electoral petitions following the 2019 elections and what has come to light in the course of the proceedings as well as in the course of a recount have given rise to a number of questions about the electoral process and the need to enhance confidence in the process.

* There have been recently speculations and innuendoes about the transfer of magistrates. It seems that’s a matter of routine, but there was earlier the holding of exams, followed by interviews, that prospective judges have had to sit to be able to make it to the bench. We did not hear the Opposition voicing an opinion on such an important matter. Do you think that’s an improvement on what prevailed earlier as regards the appointment of judges?

It is of the utmost importance that those exercising judicial functions should be able to perform their duties independently and impartially. The Constitution protects the independence of Judges of the Supreme Court by providing for security of tenure. There is however no constitutional or statutory provisions safeguarding the independence of magistrates of the District and Intermediate Courts. In France the Constitution itself protects the independence of magistrates.

 It is important in my view that magistrates should not be transferred except at the end of a pre-determined term or otherwise with their consent. This will reinforce confidence in the justice system.

As far as appointment of judges is concerned, it’s always been theoretically possible to appoint judges otherwise than on grounds of seniority or indeed even from the private Bar. But the long-standing practice has been to go by seniority from the ranks of the lower judiciary or the Attorney General’s office or the Office of the DPP.

There have been challenges in at least two cases, one concerning the appointment to the rank of Chief Justice, where appointments were to be made otherwise than on the grounds of seniority. Though some may hold the view that appointments based on seniority are not always a good thing, nevertheless this practice had at least the merit of being seen as one where no outside intervention or other discretionary power was involved.

* The Law Lords of the Privy Council will sit on July 10th on the case filed by Suren Dayal challenging the election of MSM candidates in Constituency No. 8 in the last general elections. What do you think are the chances of Suren Dayal obtaining a judgement overturning that of the Supreme Court, and what would be its consequences?

We do not know what are the chances of either side winning their case, but what we do know is that the powers of an appellate body can be rather limited to the extent that it can decide on the basis of what has been canvassed before the lower courts.

Of course, any decision invalidating the election of an MP who happens to hold the office of Prime Minister will have major political repercussions. But irrespective of what the ultimate judgment is in this case, the hearings before the Privy Council which are broadcast live to the rest of the world may have a significant impact here and abroad.

* It’s not known whether it’s only health issues that are coming in the way of the conclusion of an electoral alliance between the Labour Party, the MMM and the PMSD, but there seems to be a lack of conviction at the level of the leadership of these parties themselves to go forward. Do you think that could indeed be the case and for good reasons?

I do not believe that there is a lack of conviction on the part of the leadership of the parties involved. There are issues that have to be sorted out and a common programme that has to be agreed before an alliance is sealed.

However, the leaders must set themselves a deadline and not create the impression that if they are unable to address all the pre-election issues that have to be addressed, within a reasonable time, then how will they manage, if elected, to run a government when serious challenges lie ahead.

Mauritius Times ePaper Friday 30 June 2023

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