The Michaela Harte murder case has finally brought the violence and torture of the investigating branch of the police, in particular the MCIT, to the notice of the elite and the State.
This violence is so widespread, and LALIT and the Association JUSTICE have denounced it so thoroughly over the past decade, that everyone in the broad masses knows about it, and knows how it is used to extort confessions.
So, when nine jurors are chosen, coming as they do from amongst ordinary people, they judge much better than a Judge whether someone has been beaten up or not, for the simple reason that they are aware of the practice of torture, and of its concomitant tricks and cover-ups, often institutionalized, but nevertheless now de-coded by ordinary people. This explains the unanimous verdict of the jury: “not guilty”. This vindicates the jury system.
While the tragic murder of the young woman remains un-elucidated, it is a relief that the accused were found not guilty, given that the main evidence against them was a “confession” the accused said was extorted under torture. He was unanimously believed. This, despite the judge telling the accused to behave like a man and stop crying, when he broke down while recounting the torture.
So, the broad masses know about torture. Thus, jurors know.
Yet police brutality and violence, including torture, have been denied, even covered up, by the Mauritian elite.
The Prime Minister remains in denial.
Torture is perhaps seen by the elite as the price to pay for so-called “security”, and is dismissed as “methode forte” or the odd “gifle” in a country, where the elites have inherited slave-owning and indenture-running mentalities from the previous colonial elites, ever intent on repressing the broad masses into forced labour. Some class realities, it would seem, die hard. But, torture ruins enquiries, as well as being horrendous for the individual victims, and in the Michaela Harte case, torture has exposed the dangerous weakness of the investigating police.
The Association JUSTICE has repeatedly exposed the violence and torture of investigating police, in particular by bringing the testimony of victims into the public domain: in public speak-outs in Municipal Halls, Theatres and other public spaces, and into written histories, published and sent to the authorities, including to the Prime Minister when he said there was no “evidence”. Yet, he once again supported the MCIT in Parliament on 17 July.
The death of CI Prem Raddhoa, who had become the symbol of the ideology of State violence, has not meant an end to the violence.Nor have the damages paid out to two widows, Ms. Veronique Topize and Ms. Bindoo Ramlogun, whose husbands met violent deaths in custody, and to victim Ms. Martine Desmarais.
Instead of putting an end to it, there have been continued denials and “cover-ups” by not only the State but also ordinary members of the professional classes: barristers, magistrates, medical practitioners, MPs, sometimes even journalists, sociologists and other academics. The psychological pathway to denial and cover up is not hard to see: it is tough to accept that torture is carried out by men in ourpay, through our taxes.
But, the broad masses of working people, 80% of the country, now know after hearing, directly and via relatives and friends, the moving testimonies of so many men, who have overcome the shame and humiliation of being stripped and abused, beaten and nearly drowned, of having red ants and rats put in their underwear, electric shocks applied to their genitals. They have stepped forward and accused the abusers. In public. The memory of their testimony remains.
The broad masses, for some 5-6 years have, therefore, stopped denying the fact of torture by officers of the State. That is why a jury in the Michaela Harte murder case, being made up of “ordinary citizens”, ends up assuming, as editorialist Raj Meetarbhan so aptly put it in L’Express 17 July that confessions are obtained under torture unless proved otherwise.
The problem, identified by JUSTICE years ago, and more recently by Marie Danielle Selvon in Le Mauricien 16 July, is that confessions ought generally not to be considered evidence at all, unless they are maintained by the accused in Court. If he pleads not guilty, it means he is not confessing. Or, as the British law puts it:
“Where the prosecution proposes to give in evidence a confession made by an accused, it is represented to the Court that the confession was or may have been obtained
(a)by oppression of the person who made it; or
(b)in consequence of anything said or done which was likely … to render unreliable any confession which might be made by him …
the Court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.” (Police and Criminal Evidence Act, 1984).
Notice that the onus is on the DPP to prove that violence was not used.
In any case, a “confession”, in ordinary language, is something freely given and freely maintained.
So, the Mauritian law must be changed.
Clearly, the police and forensic department are not yet very well versed in seeking scientific proof. This, too, must change, and fast.
But, the Prime Minister, unlike the broad masses, denies the torture. It seems that anything goes when you have to nail a celebrity murder on “anyone” or when, perhaps more cynical even, the tourist industry gets threatened by the double-hit of the hotel murder and the prosecution mess-up. Whatever the reason for the professional elite sitting up and realizing the problem, it is salutary that some of them have. But what should they do?
It is important for the elite that they put into practice the JUSTICE proposal of “Ethical protocols for professionals” to stop and then prevent their collusion in the institutionalized practice of torture.
Barristers cannot postpone getting together in the Bar Association and producing a mandatory plan of action for their members to follow when they are in the presence of alleged beating or torture in custody.
Magistrates, in their monthly meetings, must at once put on their agenda how to work out how an effective protocol to make their instructions for enquiries into beating complied with immediately, and by officers different from those accused of the beating, and on how to spot torture when it is brought up in the CCTV Bail Court.
Medical practitioners need to act through the Medical Council on an ethical “protocol” which includes getting the officers in charge of a detainee to step outside the consulting rooms, even if it means calling in other staff for doctors’ security, and certainly not taking the word of investigating officers about patients in their custody. This kind of malpractice may have led to the death of one detainee in a high profile case.
Journalists and editors also need a protocol on reporting torture cases (for example, being independent of the police and judiciary for information; mentioning that the case is under the Torture Law, when it is; cross-referencing information about violent officers).
Academics in the social sciences and legal departments need to do research into torture and violence, before publishing papers flattering “democracy” or human rights in Mauritius
Following the Michaela Harte case, the last Cabinet meeting on Friday announced changes to the “lame duck” National Human Rights Commission, including “the broadening of the functions of the Commission in line with the Paris Principles”. As it stands now, the NHRC has decided not look into torture at all until, Alice in Wonderland style, the original charges are dealt with! Dish out the sentence first, quite literally, then check on the evidence.
The Government is also coming up with a new Criminal Evidence law. It must contain the same ban on confessions as in Section 75 of the British Act, otherwise the rot will continue.
Inquiry into death of Mr. Ramdhony
There is at present also the enquiry into the death in custody of Mr. Ramdhony, accused of stealing a watch. This case, like the Michaela Harte one, has, for the first time, brought some usually “silent” members of the professional classes, in this case Opposition politicians, to openly criticize police violence, and to put into question deaths in detention. Often, politicians in the Opposition spend their time calling for “tougher” police action, implying the need for more violence in order to instill “law and order”. Whatever their initial motivation, at least their interest in police violence is salutary, and we hope it remains constant.
First Torture Case in Supreme Court
The new law against torture is to be put to the test in the Courts, after the death of Mr. Rajesh Ramlogun. Four MCIT officers, Jagdawoo, Madarbux, Levasseur and Potié, were charged with torture in the first-ever torture case under the 2003 Criminal Code Amendment Act Section 78.
After Mr. Ramlogun’s death in 2006, there were already four signs that something serious had happened after his arrest.
- There was a “Foul Play” verdict at the Judicial Enquiry into his death.
- There were originally “murder charges” laid by the Police against the same four men plus three other MCIT men.
- There were also the findings of the National Human Rights Commission of “suspicious circumstances” around the death necessitating prosecution.
- Widow Bindoo Ramlogun and her three children were awarded Rs7 million in damages, the State recognizing at the Supreme Court that it was civilly responsible for his death.
In 29 May, 2009, the Intermediate Court magistrates, however, handed down a verdict of “not guilty”. The DPP appealed against this judgment. The Appeal is on 19 points (See News Section of www.lalitmauritius.org) and will be coming up soon.
The time has come to transcend the colonial levels of violence in our society, whether against children in schools and in the family, against women by predatory men within privileged spaces like the family as well as outside, whether in violent abusive language in everyday life, of whether in the form of a license to violate and abuse men in custody. It is time to put in place social structures that bring out the best in humanity, not the worst.
19 July, 2012