The provisional charge is probably unique to Mauritius as there is no reference to it in our statute books, propounds the author. To replace the existing practice, we should learn from other jurisdictions and adopt a Mauritian Criminal Procedural Code, he adds.
The purpose of a provisional charge (information) is to bring the arrest and detention of a person under judicial supervision and control. It is in conformity with section 5 of our Constitution (right to liberty), which requires an arrestor to bring a detainee suspected of crime before a Magistrate with the least possible delay. Given its distinctive feature, no detainee pleads to a provisional charge and no trial takes place on the basis of a provisional charge.
The provisional charge has been part of our criminal procedure law over a century and its origins can be traced back to the repealed Ordinance 35 of 1852. Today, although no reference to a provisional charge is made in our statute books, it has survived as a settled practice and is probably unique to Mauritius. Given its purpose of bringing a detainee under judicial control, one would assume that any transgression or abuse by the police when effecting arrest would be set right by the Magistrate, yet there is a well-founded (but not new) concern, among members of the Bar, that the judicial control is inadequate and provisional charges are being used as a cover for arbitrary arrests and detentions. It would appear that very often police officers have recourse to a provisional charge as a mere routine practice ignoring completely the principles attached to the lodging of a provisional charge. It is in these circumstances that the conundrum exists.
On the 20th 0ctober, 1994, in pursuance of a search warrant issued under the Official Secrets Act, police searched the premises of a weekly magazine known as Le Mag and detained overnight its editor-in-chief and another journalist for having “unlawfully published secret news”. Le Mag had allegedly published a “classified” document prohibited under the Official Secrets Act, which purported to be “Functional Directive for Special Mobile Force of Mauritius Police” issued by the Prime Minister’s office.
Unknown to the law
The reaction of the police was clearly disproportionate and after the search they arrested the editor and the journalist who had authored the article. The publisher also was subjected to interrogation. The chairman of Le Mag magazine, Mr. Philippe Forget, was also arrested and could not travel abroad for a full two years.
An application on behalf of the journalists was immediately lodged before the District Magistrate to have the provisional charge struck out to no avail. The applicants then referred the matter to the Supreme Court. The learned Judges found the provisional charge to be null and void, as the “offence” set out on the provisional charge “publishing secret news” was not known to the law. The Supreme Court was implicitly stating that the arrest of these two journalists and their chairman was irresponsible and unlawful. (Alain Gordon-Gentil & Ors (Applicants) v State of Mauritius & Ors (Respondents) 1995 MR 38.)
In any country under the rule of law, an arrestor must be able to justify the arrest and detention of a person ‘on a minute by minute basis’. And this, for a simple but important reason: it is a universal and fundamental right of every human being not to be deprived of his or her personal liberty save as may be authorized by just laws. The drafters of our own Constitution who were most probably inspired by Article 5 of the European Convention on Human Rights expressly provided for such a guarantee at Section 5, in the following terms:
“No person shall be deprived of his personal liberty save as may be authorized by law”. They went further in their wisdom by vesting full independence in the Commissioner of Police in the “exercise of his responsibilities and powers” so that he would not be subject to the direction or control of any person or authority.
A police Officer therefore has a duty in the exercise of his powers to act in accordance with the provisions of the Constitution. First, invoke the precise law empowering him to carry out the arrest. Second, he must subjectively suspect that the person has committed an offence, and third he has reasonable grounds to make the arrest (objective test). Unless and until these requirements are satisfied no arrest and subsequently, no provisional charge can and should be envisaged.
In many countries, the provisional charge simply does not exist. The circumstances of arrest and detention are prescribed and subject to specific time limits. An arrestor may proceed to arrest after the requirements alluded to above have been met. Furthermore, he may detain that suspect if there is a need to secure or preserve evidence relating to the offence. At this stage, the arrestor brings the suspect before the Magistrate without lodging a provisional charge in court against him but will have to justify any prolonged detention.
The procedure has the advantage of doing away with the provisional charge and places the burden on the police to first carry out a thorough enquiry, then consider whether an offence has been committed and finally in thelight of all circumstances of the case decide on the lodging of a formal information, if any, subject to the consent of the DPP. This will ensure that a person does not run the risk of being charged with levity and without legal foundation. In my view, it will assist to reduce significantly any potential abuse from the arrestor and at the same time remove the criminal stigma on a detainee who has yet to face trial.
As we embark on Year 2016, I hope for the best that all stakeholders find a meaningful solution to replace the existing practice relating to the provisional charge. It is not too late for us to learn from the experience of other jurisdictions where the provisional charge does not exist and consequently to adopt a Mauritian Criminal Procedural Code, whereby the arrestor will justify detention on a ‘minute by minute basis’ as stated by Clayton and Tomlinson in their book entitled “Law of human Rights”, referred to by the Privy Council in the case of Ramsing v The Attorney General of Trinidad and Tobago  UKPC 16.