The surfacing of videos showing police brutality and the subsequent arrest of police officers have led to demands for the introduction of the Police and Criminal Evidence Bill (PACE). Such legislation has been a long time coming.
1. The origin of the idea
The idea of a police and criminal evidence (PACE) bill is once again picking up steam following videos and allegations of police brutality surfacing over the last couple of weeks. The leader of the MMM, Paul Bérenger, has urged for the introduction of such a legislation, as has the current head of the bar council, Yatin Varma, (who as attorney general introduced a draft bill in 2013), as well as the Director of public prosecutions, Satyajit Boolell, in a newsletter from his office last week. “We need to harmonize our criminal laws, such as the Criminal Procedure Act, the District and Intermediate Courts Act, and so on. These lay out the pre-trial process, and we need a law to harmonize and consolidate them,” says lawyer Sanjay Bhuckory. At the same time, “we must keep in mind, constitutional lawyer Milan Meetarbhan tells l’express, “that in the 21st century, we should not need a law to tell us that civil servants and law enforcement officers should not act as torturers.”
The PACE has a long history in Mauritius. It first appeared in the UK when a Royal Commission established in 1978 as a result of what came to be called the ‘Confait affair’ in 1972, when a homosexual prostitute of Seychelles origin, Maxwell Confait, was found dead in his London home. Three minor suspects were arrested, and the police secured confessions admitting their guilt. They were initially found guilty, but the case fell apart on appeal after it was found that the UK police had cut corners in that case, including interrogating the minors without adults present, and not properly preparing the case.
The conviction of the three was overturned and the Royal Commission instituted as a result of public outcry over alleged miscarriage of justice in the case concluded that it was unsafe to rely on police officers investigating a case to decide on whether to prosecute; different police forces around the UK had different standards about which cases should be prosecuted and too many weak cases were making their way to court as a result, only to be overturned. What resulted was the UK’s Police and Criminal Evidence Act in 1984. “In the UK too, the police there went through this kind of trouble,” says Rajen Narsinghen, senior law lecturer at the University of Mauritius.
2. Two options
Fresh from the 1999 riots and the criticisms of the role of the police, starting in 2000, all Mauritian governments since then have acknowledged the need for some kind of criminal justice reform. At first, the favoured option seemed to be the French model of an investigating magistrate (juge d’instruction) that would diminish the need for the confession system on which most criminal convictions are secured – and also seen as the driving force behind recurrent police brutality scandals. Both the 2000-2005 MMM-MSM government programme and the 2005-2010 Labour-led government programme announced that they would adopt such a system. The latter announcing that, “Government will put in place a system of juge d’instruction to ensure greater transparency and professionalism in the conduct of criminal investigations…” Between June 25 and July 1, 2006, two French experts, Jean-Pierre Zanoto, then-French inspecteur des services judiciaires and Samuel Laine, Chief du Bureau de l’entraide pénale Internationale à la Direction des affaires criminelles et des grâces, came to Mauritius. They laid down two options that Mauritius could choose from: go for the French system or adopt the British PACE system.
It soon became clear that the Mauritian government was leaning towards something like the UK’s PACE, and away from the French juge d’instruction. “90 per cent of our criminal law is French, but the legal procedures laid down are from the UK,” argues Narsinghen, “the problem is that many of our lawyers are trained in the UK, so they tend to be allergic to anything French.” The main concern with the French system, argues Meetarbhan, “was that it will be seen as alien to our prosecutorial system, so people were worried about that”. By 2007, the PACE system was increasingly being favoured, even in statements from Navin Ramgoolam, prime minister at the time, in parliament. The coup de grâce came in 2010, when the Law Reform Commission picked the UK’s PACE as the way to go.
It justified its rejection of the juge d’instruction model by pointing to the Outreau trial that scandalized France when in 2004 a workingclass town was rocked by allegations that parents were involved in large-scale sexual abuse of their children. The whole trial came crashing down when it was revealed that the single investigating magistrate had ignored the absence of medical evidence of sexual abuse and had instead been swayed by testimonies from psychologists, children and some parents that turned out to be false. The case crumbled in an appeal in 2005. Then-French president Jacques Chirac apologised to those jailed in the case and announced the need to reform the French judicial system. For the LRC in Mauritius, the problems of allowing an individual magistrate to decide which way a trial should go was all too obvious. Reform, the LRC said in its 2010 report, should be “on the same line as the 1984 UK PACE, the way forward for greater professionalism and transparency in the conduct of criminal investigations”.
Former attorney general Yatin Varma, who drew up what would become the PACE bill in Mauritius says, “We analysed the situation, and given the local context, the PACE seemed to be the more appropriate option.” This choice was reflected in the 2010-2015 government programme. Gone was the demand for a juge d’instruction, and it was replaced by the announcement that it would “adopt a new Police Act and a Police Procedures and Criminal Evidence Act, with Codes of Practice designed to regulate the conduct of persons entrusted with the duty of investigating offences”. Starting in August 2011, the then-government started coming out with drafts of the bill they had in mind.
In July 2012 and February 2013, Professor Steve Oglow of the Kent Law School and Stephen Savage of the Institute of Criminal Justice Studies at the University of Portsmouth came to Mauritius to help the attorney general’s office and the Law Reform Commission finalize Mauritius’ own PACE bill. There was also help from the UNODC. “When we came up with a draft bill, there were some issues, nothing on principle, but more about technicalities, ultimately, we got a consensus,” says Varma. That resulted in the PACE bill being introduced in the National Assembly in 2013. But nothing much happened after that: “2014 was an election year and nobody has passed that bill yet; the fact remains that the bill has already been prepared” insists Meetarbhan.
3. The provisional charge problem
The problems that the law demanded by the opposition and the DPP, and that the 2013 version of the PACE bill was supposed to address have long dogged the Mauritian criminal justice system. The first is the provisional charge system, which allows the police to simply arrest people on mere alleged complaints. This system has been blamed for much of the problems within Mauritian policing; i.e., arrest first and then look for evidence (or extract confessions) later. Provisional charges themselves, of course, do not actually exist in Mauritian law – dating back to a now-defunct 1852 colonial-era ordinance. “This is just something that the police keep doing and it is condoned by the judiciary,” says Narsinghen, “the police has abused this system a lot.”
Just how arbitrary this system can get was seen in the case of Le Mag in 1994, when its editor-in-chief and a journalist were accused of breaching the Official Secrets Act by publishing a functional directive for the Police Special Mobile Force issued by the Prime Minister’s Office. Although the District Court upheld the provisional charge, it collapsed at the Supreme Court for the good reason that the provisional charge of “publishing secret news” lodged in the case did not exist in Mauritian law.
This is just one example of this system in action. The system is responsible for flooding the judiciary with a string of exceptionally weak cases. On June 14, 2016, the MMM MP Reza Uteem asked how many provisional charges fell in court, it turned out that between January 2015 and June 2016, the police had lodged 14,728 provisional charges, out of which 5,217 (nearly a third) were struck out in court for lack of any evidence. Much the same criticism that the Royal Commission made about the UK’s police that led to the institution of the UK’s PACE in 1984.
This, however, is not the only problem with the system. It is also the fact that when it comes to some criminal cases, the provisional charge system is consciously ignored. This is largely true of civil servants being investigated by the Independent Commission against Corruption (ICAC) where arrests are only made after evidence has been gathered. Or if the accused in question is high enough on the totem pole. When former finance minister Vishnu Lutchmeenaraidoo was accused of using his position to secure loans from the stateowned State Bank of Mauritius, the provisional charge system was ignored. Explaining the decision on April 12, 2016, in parliament, then-prime minister Sir Anerood Jugnauth stated, “The members of the opposition have been campaigning outside that the police is doing injustice by simply on an accusation, on an allegation, arresting people, bringing provisional and bailout. They consider it most improper and unjust. Because of that, in the two cases of Hon. Dayal and Hon. Lutchmeenaraidoo, I asked the Commissioner of Police not to take upon himself a decision to bring anyone of them before the court of law and have a provisional. I asked him to have the inquiry completed, not to take decision by himself, but refer it to the DPP. Let the DPP decide whether there is a case, and if there is a case, under what section of the law and what offense.”
This is not to say that this stand of looking at the evidence first is wrong – on March 24, 2017, the DPP ruled that there was not enough evidence to prosecute Lutchmeenaraidoo – but simply why is it that when it comes to ordinary citizens, the provisional charge system is suddenly treated like an unquestionable dictum? “Although it was done in the case of Lutchmeenaraidoo, that way has not been followed since,” Bhuckory points out.
The whole system makes no logical sense, argues Meetarbhan, “why arrest someone first and look for evidence after? What happened in the Lutchmeenaraidoo case in certainly not the rule; so, we need to institutionalize that procedure, but it’s a bit awkward when you are coming up with a law to abolish something that does not officially exist on the law books”. In abolishing the provisional charge system, the 2013 version of the PACE bill was looking to try to guarantee equal treatment in police investigations.
4. Custody officer
The other major overhaul such a law would bring, according to the DPP, is the manner in which suspects are treated after their arrest. And this is through the creation of the post of custody officer who would be responsible for the proper treatment and safety of people placed under arrest. At the moment, people placed under arrest are under the responsibility of station orderlies, usually of the rank of a police constable. Station orderlies at present have no say on how long a person can be detained or in what manner they can be interrogated by investigating officers. Nor is the station orderly present when suspects are questioned. At present, a station orderly’s job is limited to handling a suspect in a cell. “It’s all very amateurish now, an investigating officer might have an axe to grind, the decision of how to keep a suspect in a cell cannot be left in the hands of police officers investigating that crime,” Bhuckory points out.
A lack of oversight that becomes dangerous, Narsinghen recalls, “in a culture of violence based on a system where 70 per cent of prosecutions are based on extracting confessions”. You need such an officer, he adds, “not just to prevent a suspect from tampering with evidence and witnesses, but also to prevent investigating officers from abusing a detainee’s rights just to extract confessions”. Just how important this post is supposed to be, can be gleaned from the fact that although most station orderlies today are police constables, the 2013 PACE bill envisioned custody officers that would take over the role would not be below the rank of inspector.
Reinventing the wheel?
Just because the 2013 PACE bill provided a draft to work from, does not mean that such a law has been any faster in coming. The remainder of the term of the Labour-led government that lasted until the end of 2014 did not see the bill brought for a vote. And despite the fact that such a bill was included in the 2015-2019 MSMled government programme, the bill did not appear, despite reassurances that it would be imminent. Between 2016 and 2017 the government hosted three trips to Mauritius of Sir Geoffrey Rivlin to help finalize the bill, which the government had now renamed the Police and Criminal Justice Bill (PACJA).
After two attorney generals, Satish Faugoo and Ravi Yerrigadoo, failed to bring the bill to a vote, current attorney general Maneesh Gobin has periodically insisted that the newlyminted PACJA was imminent. When the David Gaiqui case broke, Gobin insisted on February 3, 2018, that the bill would be presented at the start of the parliamentary term. Then on October 30, 2018, he again told parliament that, “a lot of progress has been made since, and the bill has reached near completion”. That, however, was in 2018 and the bill has yet to come before parliament.
5. Commission of enquiry or judicial enquiry?
Another point that has cropped up in reaction to alleged police torture is the coming out from the opposition parties: the MMM wants the government to institute a commission of enquiry to investigate the problem, while the Labour Party wants a judicial inquiry to be set up. So, what is the difference between the two? “While it is true that a commission has wider powers and can make recommendations,” argues Bhuckory, “that still leaves the question of who is going to head it, somebody appointed by the prime minister’s office, and rubberstamped by the president?” The videos, pointing to torture by police officers is a serious criminal offense, says Meetarbhan, “We are talking about serious criminal offences, a commission of inquiry is not there necessarily to look at criminal actions of individuals, this can be done under existing criminal procedures.” He favours another proposal that has since cropped up; a presidential commission along the lines of the Mckay report that proposed reforms to Mauritius’ judiciary. “That would mean that you would not have parallel processes taking place, where the criminal process will have to wait for the commission of inquiry to finish its work; normally you cannot have a commission of inquiry investigating at the same time as a criminal investigation looking into the same thing, but with a presidential commission with a much broader and thematic mandate, a criminal investigation into specific police officers can be done at the same time.”