The most serious problem in the judiciary is, paradoxically, in fact, beyond it: the inequality of different classes of people.
If an accused or a plaintiff or a defendant is in a social class higher than the barristers, magistrates, judges and other Court Officers, his experience is very different from people who are in the lower class than the legal professionals. And the bigger the class difference, the bigger the inequality of treatment.
In Mauritius there exists a supposed “separation of powers” in the three parts of “government”. This means the “Legislature” essentially votes the laws and passes the budget of the Government, the “Executive” implements State policies, and the “judiciary” sorts out disputes, either between people or groups of people, or between people and the State. But, many Magistrates come direct from the DPP or State Law Office, in other words from the “executive” branch, so they are notorious for having a mind-set that is either pro-prosecution, or for having a “State”-identity. There are also many judges who look far ahead to post-retirement, where some collusion with the “Executive” could be worth oodles of money in terms of nominations later in life. Increasingly, there are also Administrative Tribunals, controlled by the “Executive” and that tend to trespass on the Judiciary. There are all sorts of Tribunals: ICTA, ICAC, IRC, the Civil service Appeals Tribunal and so on. And to add to this, there is a gradual privatization of the judiciary as private arbitration is replacing the public-service judiciary. There has been debate in the press as to whether sitting judges should accept this kind contract at all. But the fact is, it exists, and it is a serious problem for the reputation of the Judiciary.
In Mauritius, no magistrates are elected. Nor are judges. Nor are there any non-professional magistrates. This means the maxim “Free citizens should be judged by their peers” has not progressed in Mauritius. The only democratic part of the judiciary is the jury system for the Assizes. There, too, Prime Minister Navin Ramgoolam, when the Police messed up a high-profile murder inquiry and quite rightly lost their case, is on record as saying that the jury system should be done away with. In any case, the jury register is not a very broad spectrum list in Mauritius. But now, there are pressures in the wrong direction i.e. away from democracy.
Unpopularity of the Judiciary
Everyone in Mauritius is critical of the judiciary, and mostly with reason. When one day a revolution takes place in Mauritius, people say, the spark that will, no doubt, have provoked it will be the Judiciary! Already, the February 1999 mass riots were provoked when the composer/musician Kaya, so beloved of the people, was found face-down dead in police cells with 33 injuries to his body and with the closed metal cell door having left marks on his feet which were squashed under it, and when no arrest was made of those in whose custody he was. Police violence, especially that meted out by enquiring officers, continues. Quite rightly, the blame for not stopping the torture, and for its continuing with impunity, is placed mainly on the heads of those sitting in the judiciary.
Because of the massive anger against the Judiciary, Prime Minister Ramgoolam brought Lord Mackay to study the problem. His quite sound Report of 1997 has mainly remained no more than written recommendations.
Everyday reality still provoking anger
Let’s look at some of the factors that continue provoking anger amongst people, especially working people and the poor.
“Justice delayed is justice denied”
Despite the Mackay Report on the Judiciary, cases still drag on and on eternally in the Courts, for years and years. Sometimes, the accused remain locked up for the duration.
To give one example, the Constitutional Cases on the new biometric ID Cards, though challenged by two Writs, dragged on for the entire one year that the Executive had set aside for the private companies to take citizens’ fingerprints and store them. A third case, though lodged in 2013, has still not had a date fixed for its hearing, by November, 2014. The DPP has even announced that he is unlikely to prosecute until “final judgment”. Then 48 hours after this announcement, maybe by coincidence, the Courts sprang into action. But then, although the two cases were heard, no judgment has been handed down. Fingerprinting continued, under duress.
In the 2013 Mauritius Criminal Law Review, in an article entitled “Access to Justice and Delay”, the DPP took as a good example a case Celine v The State, which began in 1996 and laboured on for 15 years. Every citizen in the country has Dickensian tales to tell that compete with this case for delay.
Not knowing if you are arrested or are a witness
It is often the case that, when the Police come and fetch someone from his home, the person is unclear as to whether he is under arrest or merely helping the Police. This nurtured confusion has terrible consequences. Firstly, people do not like coming forward as witnesses, even if they have information, in case they end up arrested. Secondly, people who come upon a corpse are terrified of even reporting it. Their fear is that they will be arrested. Often they are. And both these consequences are related to the main consequence: the police have the power to blackmail, beat and torture detainees into confessing to well-nigh anything.
It should be the case that some serious evidence is necessary before an arrest is made. But this is not the case. Any “allegation” can get you arrested, if you are in the lower classes. If an allegation is made against someone in power, obviously nothing happens. The statue of Justice with her scales in her hands and her eyes bound, peeps with one eye in Mauritius.
Here is what happens when you are arrested. Once you are already arrested, then the police go looking for evidence. Someone makes an allegation (of theft, rape, wounds and blows, etc), and the police lock him up (given that he is not an important person). Then they beat him up, threaten not to let him out, and threaten to arrest his mother or sister in order to get a “confession”. These types of forced confession are current practice in Mauritius. It is quite usual to hear police officers justifying this, on the grounds of effectiveness or efficiency.
While someone is locked up without evidence, there is a procedure put into action called a “provisional charge”, often sufficient to keep him or her locked up. This could be anything. Again, police officers can be heard discussing what to “put” down as the provisional charge. Magistrates at the Bail and Remand Court think this police procedure is normal.
“Fer letur Moris”
There is another practice whereby, when someone is locked up by the Police, he is transferred from police post to police post, without his family knowing where he is. This, too, is considered normal by Magistrates. Even the families of people who are transferred all over the place are told to get used to it. Only when there is a high-profile case, like when Ms. Martine Desmarais was taken in by the police (she was a witness) in the north of the Island, and eventually after a habeas corpus procedure released from Albion Police Station in the West, where she had been tortured to try to force her to change her statement.
Magistrates who wash their hands of detainees
Often, when someone is arrested, it is as though the Judiciary washes their hands of them. Legally, it is surely the judiciary, as well as the police, who are responsible for protecting an accused. But magistrates rarely do so.
What happens is practice is this: Suppose an accused standing in the box is clearly injured, or informs the magistrate that the police have beaten him up, even when it is not visible. The Magistrate often does call for the Police officers to take him to hospital. But the Magistrate just gives the detainee back into the hands of the same team of officers. In practice, there is rarely any follow-up at all. Sometimes the police wait a week before taking someone for treatment. Other times, they just ignore what the Magistrate ordered them to do. Follow up is not part of normal practice. The Magistrate may even call for n “enquiry” because of the beating up. What happens? The short answer is nothing happens.
Magistrates are not “peers” to most people, nor are they trained. For 40 years there has been talk of a Ecole for Magistrates. But there is not one.
Many are young people who have grown up in the sheltered backgrounds of the elite of the country, ignorant of the life of ordinary people. And while long ago people had access to Magistrates, who would then learn the nitty-gritty of life, they no longer do. They arrive direct from the DPP office or the SLO, with their concomitant mind-sets. This is their only training. Most magistrates have never in their lives defended an accused before becoming a magistrate. All this just adds to the anger against the Judiciary. The dangerous thing is that the anger is merely hidden because of draconian Contempt of Court laws still on the statute books, despite Geoffrey Robertson in 2013, in his Report on free expression, calling for them to be repealed.
Barristers and Attorney’s Fees too High
Lawyers’ fees are too high for ordinary people to be able to afford. By contrast, lawyers’ ethics are too low for ordinary people to stomach. The Bar Council never seems to think of being there in order to protect the public against abuses. So, it is a common joke amongst the people of the country that once you end up in Court, whoever was your enemy to begin with; your principal enemy becomes your own Council.
Police attack lawyers who defend their clients well
Another very dangerous “derive” has taken place over the past years, especially since the riots after Kaya’s death in custody. Criminal lawyers are increasingly attacked by enquiring police. This got very bad when Prem Raddhoa was in the news for violent methods. Criminal lawyers live in fear of the police. It is a very grave situation for human rights in the country when lawyers are afraid of the police. This dangerous slide into fascism has not yet been exposed to the public properly.
Dead language in Court
The language of the Court, English, or English-and-French, is to all intents and purposes a dead language for Mauritians. Most don’t understand anything that is going on in Court. In 90% of cases neither accused, plaintiff, defendant, nor anyone on the public benches understand the least bit of what is going on. And this is supposed to be “public”, in open court, as part of the democratic process! This reality persists despite Privy Council judgment that says “proceedings” in criminal cases must be conducted in a language that the accused understands. This reality persists despite the fact that the judges said there cannot be a “fair trial” without an accused understanding what’s going on. Something that only stands to reason. There are still many judges and magistrates that still, in 2014, after the subject has been introduced in all primary schools for three whole years, don’t know how to write Kreol properly. The Court scribes and transcribers have recently begun, in batches, to learn to write Kreol properly, as part of their professional training. What is shocking about this is that nearly all evidence in Court in Mauritius is in Kreol. So, the scope for downright errors is hugely increased by this inability to write properly.
No PA system functioning
The sound systems in all Courts are totally out of order. So, what happens in Court in Mauritius is not really public at all. The public is provided with two or three miserly benches, from which you can hear strictly nothing. The Press has to rely on what they get fed by the lawyers, because they can’t hear either. And if the public does catch the odd sound, it is in a language with which they are not familiar at all.
There is still the Medieval system of “sertifika moralite”, whereby a good layer of people of Mauritius are not able to get any job at all, simply because they have not got a clean record, as proven by a bit of paper called a certificate of good character. Some young people with minor cases, often miscarriages of justice, undefended or badly defended, end up finding their lives ruined. The system produces an under-class of people that have no alternative but to fall into selling drugs, petty theft, the odd hold-up, and so on.
Judiciary gradually cedes power to the Executive Branch
In Mauritius, the Judiciary inherited a double colonization – French and English – and was to begin with a dodgy system, with all its fundamentalist and colonial weight. It has steadily deteriorated since Independence. In particular, it has ceded power to the power-hungry Executive branch:
- Today, it is, for example, no longer a Court Usher who issues you with a summons to appear in Court. A police officer, straight from the Executive Branch, calls at your door in the morning. Or sometimes does not, and people end up locked up for contempt. We have all come to see this as normal.
- In Judicial Inquiries, for example, though it is supposed to be the Magistrate who inquires, we find it is the police, a part of the Executive that in fact does the inquiry. This too we see as normal. We even see it as normal when the inquiry is looking for a suspect amongst ….the police themselves.
- When a detainee tells a Magistrate that he has been beaten up or tortured by the Police who have brought him in the jeep to Court, the Magistrate might say, “Open an inquiry into this!” Then, he or she just delivers the poor victim into the hands of the butchers. The inquiry is rarely followed up on. It is just lip-service.
- Confessions made to the Police, a branch of the Executive, are accepted in Court by the Judiciary, until today, and convictions often depend entirely on this. It represents a capitulation of the judiciary to the Executive Branch. It means that senior judicial cadres accept at face value the word of the most junior of officers in the Executive Branch, like inquiring officers or CID men. In order to prevent this “derive” brave lawyers introduce motions of “voir dire”, an elaborate procedure that makes all the court officers sigh, in order to break down one of these flimsy confessions made to the executive branch.
- There is a new fashion of judges preparing their “sinecure” for after retirement. They hand down judgments that are compliant to the Executive Branch that will hopefully come up with a post-retirement well-paid nomination or two. It is not only the well-paid arbitration jobs that the private sector will give them if they have had a career of pleasing the class of bosses, but also the jobs that the Executive hand out – doing Commissions of Inquiry, or writing laws. As one ex-Judge put it, he was a glorified “secretary” to the Executive Branch in one of these jobs.
- We even saw the amazing case of former Chief Justice Pillay, when he was in office, signing a Bill into law as acting President of the Republic when both President Cassam Uteem and Vice-President Chettiar refused, in protest, to consent to the Prevention of Terrorism Act. This judge, in his role of judge, could well have been in charge of deciding the “constitutionality” of a law he signed in, after two “real presidents” refused to sign it in. What kind of separation of powers is this?
- Over the new ID Cards there has been another sign of subservience of the Judiciary, as a whole, to the Executive. The moment three-quarters of the people had submitted (albeit in anger) to the humiliation of being fingerprinted, the judiciary came up with a statement that the judgments should be handed down swiftly. We are still waiting for judgments. And one of the cases has not yet been given a date for its hearing. Meanwhile, the Executive has, by force, made 92% of people give their fingerprints to a dangerous central data-base for storage.
Divorce still a Charade
- It is a popular joke that while it costs Rs10 to marry, it costs Rs10,000 to pay lawyers you are forced to take to get a divorce.
- Almost all divorce cases are based on nothing more than a “cut-and-paste” operation, 90% of the facts bent so as to fit the template the lawyer has, or straight-out invented. So bizarre are the proceedings that the newspapers and radios – though it might increase their sales and ratings – do not even cover the details. So, even the Press partakes of the charade.
What LALIT calls for
- People who cannot afford a lawyer must be given one by the State.
- These lawyers should come off a Register, and be on call to be present for anyone under arrest who is called upon to give a statement.
- An Ecole must be set up for Magistrates.
- New criteria need to be in place for recruiting magistrates. We suggest 6 months work defending accused (on the Register for free lawyer services) and 6 months of defending workers in industrial cases against the bosses.
- The jury system must be developed and expanded to include civil suits.
- Lay Magistrates, or “Justices of the Peace” need to be introduced, so that people who are in touch with the social realities of everyday life can do the work. These could be retired people, ordinary civil servants or office workers, who live in the neighbourhood of the District Court.
- The Kreol language must become the language of the Court for all aspects of Proceedings.
- Proper PA systems must be installed in all Courts so that the public can hear what is going on.
- A National Inquiry must be set up to find out which CID teams use violence and torture on detainees, and their instruments of torture must be confiscated and made public.
- There must be a List kept at the Human Rights Commission of complaints for brutality and torture by different individual police officers, or teams of officers. This way, the statistics begin to speak for themselves.
- That all confessions, in order to stand, have to be made before the Magistrate or Judge in open Court.
- That “sertifika moralite” become clean again after a few years, for any offenses that are not violent; that a conviction should never be a reason for not employing someone, but only an indication that the person might need to be watched.
- All police officers must have the right to join or to set up trade unions.
Demands for Detainees
When the police arrest people, they must on the spot be informed that they are under arrest, given a telephone to contact their family and their lawyer. If they do not have a lawyer, they must be given a free lawyer before any statement is taken. There should never be confusion, at any one time, as to whether someone is under arrest, or being invited to the police station as a witness. The police should be forbidden to carry the person from police post to police post, as they are wont to do. He or she must be kept in a fixed place, where their family knows they are, and where they can be brought food, reading material etc.
The practice whereby the police slap “provisional charges” on people, often decided lightly, must be stopped. This system is being used in order to arrest people first, and then look for evidence against them. This is not acceptable. In addition to it being outrageous, like Alice in Wonderland’s court, it is this that leads to the notorious torturers of the inquiring branch of the police.
If someone is unable to afford bail, they must be released on their own word.
Confessions, to be used as evidence, must be made in open court in public before the Magistrate or Judge. This rule will make it useless for police officers to risk torture because the confession given under torture will fall in Court, for the simple reason that the Magistrate will not be allowed to accept it as evidence.
All detainees must have the right to a phone call a day to family and friends.
Community service must replace jail sentences in all but the violent cases.
All fines must be a proportion of peoples’ earning, and not a fixed sum. Those who earn a lot, will thus pay a lot. This way the punishment is equalized.
No-one should be locked up just for not paying a fine. This is equivalent to being locked up for a debt. Again, the person can be given community service.
Everyone must have a right to get a Certificate of a Clean Record after a few years, depending on the gravity of the offense, and excluding particularly violent crimes.
Every detainee, as they leave prison, must be assured one year’s employment in a State enterprise or government service when they come out of jail. This way, people get a chance to rehabilitate themselves.
The right for police officers to unionize
Now that firemen and prison guards have the right to join unions, it is high time this right was extended to police officers, too. This way the all-powerful hierarchy that causes so many of the ills of the police service, will be under some social control. Many young police recruits suffer humiliation and harassment at work from their seniors. It is our money, public funds, that is, at present, paying for such ill-treatment. The least we can offer police officers is the right to defend themselves, and the right to draw attention collectively to the endless work problems that they have. It is not just the pay issue, but also transport, especially at night, over-work, extreme isolation at some posts, and brutal training at other times. Remember how two SMF officers died they were made so to exhaust themselves. And, police officers can themselves create the conditions for improvements in the organization of the police.
There is systemic corruption in some sectors of the police force. There is always this possibility because in the force, there is always flexibility for each officer to decide how rigorously to apply the law. Obviously, in no country do they all apply all the laws all the time. Drug laws do not usually apply to the rich. Noise laws do not usually apply to religious organizations. And, even in ordinary life, the ongoing fights and feuds between neighbours and within families are not punished, obviously, with the full force of the law. Society would be unmanageable if that was the case.
Yet, unionized police can fight against pure corruption better than a non-unionized police. This is because the hierarchy is what makes it difficult for gross corruption to be exposed.
The Solution if not Repression; Repression is just another Problem
Ramgoolam, Bérenger, Jugnauth, Duval, are all short on solutions to social ills other than calling for more repression. And Mauritius is suffering a grave social crisis right now, as capitalism goes through a series of crises. Calls for more repression just pile up all the effects of this social crisis on the shoulders of police officers. They in turn end up becoming brutes, on the one hand, and corrupt, on the other.
A union would help the police to resist this “derive” towards a police state. It will make it easier for officers to expose brutality, torture and corruption.
It has, in fact, been part of LALIT’s program since 1983, in writing and in all our congresses, meetings and demands, that police officers have the right to unionize. We are supporting the police officers who are in the process of setting up the very first union. They are facing a lot of repression. In particular, LALIT calls for the repeal of Section 17 of the Police Act that denies officers the right to unionize. We call for the State to at once stop its repression on these officers.