Provisional Charges: Caution and Restraint


An issue that has been flagged previously in these columns and by concerned citizens and public-spirited legists relates to the abuse that has been made of provisional charges. Besides police action directed at suspects in drug trafficking cases, there have so many disturbing cases of police action during the last ten years targeting specific people, mostly in Opposition, and in some cases conducted in the most outlandish of ways that it was deemed necessary to rethink the “provisional charges” provisions that would ignore the test of reasonable suspicion. No remedial action has been forthcoming. The abuse that’s made of provisional charges remains a recurring problem and what we have been given to witness these last months is an ongoing tussle between the Office of the DPP and the Police – a first in the annals of this country – over who calls the shots in matters of arrest and detention of suspects.

The police are obviously hard-pressed dealing with the serious drug abuse and trafficking situation in the country as evidenced by the thousands of drug offences involving not only adults but also minors and young people under the age of 25 registered every year. Mistakes are bound to happen, and provisional charges are thereafter dropped in such cases. The latest statistics available relating to provisional charges come from the answer to the PQ put by MP Reza Uteem in June 2016, which indicates that between January 2015 and June 2016, the police had lodged 14,728 provisional charges, out of which 5,217 were struck out in court for lack of any evidence.

One would expect that any police investigation would comply with the rule of law and ensure that the fundamental rights of suspects would be respected. In view of suspicions that that would not be the case in many cases, the call for the introduction of the ‘Juge d’instruction’, modelled on the French system, was made. This idea seems to have been dropped, and it’s still not clear when a piece of legislation modelled on the UK’s Police and Criminal Evidence Act, introduced in 1984, which is meant to govern the use of police powers as well as balance the rights of the individual against the powers of the police, will be enacted. A Bill to that effect was drafted as far back as 2013, and it has yet to go through the legislative process.

In the meantime, doubt persists as to whether the police carry out their work as thoroughly as they should have before arresting suspects on different charges. The turn of events in a number of cases suggests that this might not have been the case, and the consequence is moral and material damage suffered by the concerned persons. Oftentimes politicians in office and/or public office holders who help press such charges especially in politically-motivated cases without going the full length to substantiate them are more often than not out of the offices they occupied at the time the un-sustained charges were levelled. The question that arises is how such persons may be made to account for questionable charges raised against people who are put under arrest and not even allowed to leave the country over a long period of time.

It may be recalled that Mr Rundheersing Bheenick, the previous governor of the Bank of Mauritius, was subjected to ignominy as well as prohibition to leave the country so long the ‘provisional charges’ did not get cleared in court. The court subsequently released him from those charges. He has instituted a claim in damages for false charges levelled against him. We learn that he attended Court this morning in the case lodged by him against the State, the Commissioner of Police and the then head of the CCID, Mr Jangi, and after numerous postponements the case is now fixed for continuation on 13th February 2024, which makes it exactly on the 9th anniversary of the two-dozen strong police “landing” at his residence and his arrest on that day on three separate provisional charges. So much for speedy justice!

The question that arises especially in politically-motivated arrests is whether the police, by acting under the influence or not fully substantiated statements made by politicians/ministers and public officers, proceed to arrest persons under ‘provisional charges’ which are subsequently quashed in courts, are not deliberately misled. If so, is it possible to charge those who made unsubstantiated statements to the police in the first place and hold them accountable, irrespective of whether they hold the office or cease to do so, for subsequent claims in damages of the ‘victims’ of this situation, unless they convincingly prove that they acted in good faith in light of solid evidence rather than on trumped-up charges?

It is manifest that the police reliance on “provisional charges” to allow them a free rein on the deprivation of liberties of any citizen and other constraints on his movements for months/years, cannot be acceptable and requires the counterbalance of DPP and/or effective judiciary oversight. The greater the powers conferred onto a State institution, the greater the need for caution and restraint in the exercise of such powers.

Mauritius Times ePaper Friday 6 October 2023

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