The unending conflict opposing the Commissioner of Police (CP) to the Director of Public Prosecutions (DPP) is taking an ugly turn. It’s a first in the annals when a holder of a constitutional post comes out publicly against the decision of another constitutional head, and the latter taking the same route in what is perceived to be a tit-for-tat retaliation. All this does not bode well for the country.
Readers will remember that the CP took the unusual decision earlier this year to contest the stand taken by the DPP not to oppose the Moka District Court senior magistrate to grant bail, under stringent conditions, to Bruneau Laurette, accused of illicit drug possession. We observed then that instead of putting in doubt the legal judgement of the DPP, the obvious and reasonable alternative available to the Commissioner of Police would have been a timely challenge of the magistrate’s decision in the Supreme Court on his own steam. That was not to be.
The Police Commissioner thereafter swore an affidavit in which he took issue with the decisions of the DPP which in his view would compromise police investigations in certain cases. The CP maintains that the DPP would be violating article 71 of the Constitution and would thereby be usurping his powers as Commissioner of Police, in particular those relating to the detection and investigation of crimes or the arrest of suspects. The matter is presently before the Supreme Court. The related background question is whether the CP or his services make free use of provisional charges, not only in drug related offences, while the investigations are far from complete and may take years, depriving an accused (but not yet tried and convicted) citizen of his freedom and rights. In another drug case, for instance, a skipper arrested in a major drug haul in May 2021, is still on preventive detention without trial and the Bail and Remand Court have this Thursday given the police six months to lodge a formal charge failing which the suspect would be granted conditional bail.
On the other hand, the Office of the Director of Public Prosecutions has lodged an application for judicial review of the decision of the Commission on the Prerogative of Mercy to entertain the application of Chandra Prakash Dip, son of the Commissioner of Police, for remission of the 12-month prison sentence delivered against him by the Intermediate Court into a Rs100,000 fine. The remission recommendation in this particular case approved by the President of the Republic had raised lots of questions and protests from different quarters. One of the arguments put forward is that the decisions of the Commission on the Prerogative of Mercy may defeat our justice system when the law provides for the President of the Republic, acting on the advice of the Commission, to radically change any sentence – even if the highest courts have ruled a guilty verdict.
Tied to that are a number of questions, namely whether the suspension of the Intermediate Court judgement, as ordered by Justice David Chan on Monday 21 Nov 2022 until the determination of the appeal (lodged by Chandra Prakash Dip) to the Privy Council would, by implication, mean that Chandra Prakash Dip had not yet been sentenced; and whether it was in order for the Mercy Commission to entertain any application for remission of a judgement and sentence that stands suspended in those circumstances. Our correspondent Lex had in an earlier interview argued the point that ‘logically, if a judgment convicting a person and the sentence are suspended, it would mean there is no conviction.’ Opinions differ on these questions, he added, as some would tend to support the view that following a conviction and even if there is an appeal pending and the judgment is suspended, the Mercy Commission can still consider an application for mercy; others are of the firm view that in the absence of a conviction, the Commission has no power to intervene. Only a court of law can shed light on this.
As regards whether the recommendations of the Mercy Commission can be brought up for judicial review, the DPP clearly seems to believe that that is indeed the case given that the Commission does not enjoy the immunity that the Constitution confers on the President of the Republic. Though the final decision (in an application for remission) is that of the President in the sense that the latter endorses the recommendation of the Commission, the main decision-making process is that of the Commission and should be amenable to judicial review, argued Lex.
We will not comment on the merits of the cases brought by both the CP and the DPP, but there is a growing public sentiment that this public spat should have been avoided for the sake of the high standards of decorum that should exist in the public field and that holders of constitutional posts and others in high office, administrative or political, should be showing to fellow Mauritians.
There is no argument about the fact that the harmony, relative peace as also progress that Mauritius has known during the last 55 years are in a large measure due to the fundamental guiding principles enshrined in our Constitution and the adherence by the different stakeholders to the values and respect for such principles as regards the rule of law and other constitutional protections. Nevertheless, a Constitution is only as good as the men and women who exercise the powers devolved upon them by that same Constitution in their respective positions. Some might well say, the clarification of roles and limits to the powers of the DPP and the CP are welcome, particularly at the provisional charge level, even if it comes at some costs to the taxpayer with the scene set for King’s Counsels to argue respective merits. The alternative of continuing public tussles between two holders of important constitutional posts would be unthinkable.
Mauritius Times ePaper Friday 15 September 2023
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