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JUSTICE Presents Counter Report on Human Rights at U.N. On 14 March, 2005

12.03.2005

JUSTICE PRESENTS COUNTER REPORT ON HUMAN RIGHTS AT U.N. on 14 March, 2005

Advocate and JUSTICE member, Jean Claude Bibi will on Monday 14 March be presenting the counter-report prepared by JUSTICE after the Mauritian Government will present its Fourth Periodic Report. Mauritius is a signatory to the UN Convention on Civil and Political Rights (ICCPR) and also to the Optional Procole which makes the Convention binding. The Mauritian Government report which will be defended by the Attorney General, Mr. Emmanuel Leung Shing is available on the UN ICCPR website.

Lalit endorses this Counter-Report prepared by JUSTICE. JUSTICE is an association set up just over a year ago to oppose violence by officers of the State. Some Lalit members are also members of JUSTICE, and Lalit was instrumental in setting the organization up. JUSTICE elected committee members include some Lalit members, Alain Ah-Vee, Jerry Cadine, Lindsey Collen, Rajni Lallah. Other JUSTICE Committee members elected are Jean Claude Bibi, Lindsay Morvan, Veronique Topize (widow of Kaya, found dead in police custody), Martine Desmarais and Lise Bayaram (Mother of Josian Bayaram found dead in police custody).

The report back from Jean Claude Bibi's mission is planned for 1 April at 4.30 pm.

Here is the counter-report, which is followed by the JUSTICE Covering Letter:


COUNTER REPORT

JUSTICE wishes to thank the UNHCR to make available via the Internet the Fourth Periodic Report submitted by the Republic of Mauritius. We deplore that the Government of Mauritius has once again failed to make available its report to the general public and to the media in Mauritius. JUSTICE urges the United Nations to recommend that the Republic of Mauritius make its fourth periodic report and the conclusions of the UNHRC thereon available to the public and the media in compliance with the recommendations of the Committee.


PART 1

We propose first to consider progress made in the field of human rights protection since 1996 when the United Nations Human Rights Committee forwarded its observations at its 1476th. and 1478th meetings in March 1996 when the third periodic report of Mauritius was examined. We will then consider the serious shortcomings of the Protection of Human Rights Act and of the National Human Rights Commission and the extent to which these shortcomings adversely affect their effectiveness in the protection of human rights and, more particularly, in combating the scourge of police violence adequately.

1. JUSTICE acknowledges that the enactment of the Protection of Human Rights Act in 1998 was an important and a most welcome landmark in the field of human rights protection in Mauritius. The Act provided for the setting up of the National Human Rights Commission (NHRC) and, even though it took as long as three years for its establishment in April 2001, the National Human Rights Commission eventually emerged as a necessary forum where citizens could air their complaints that soon proved to be numerous, particularly complaints against police violence.

2. JUSTICE also recognizes that the enactment in 2002 of the Sex Discrimination Act and the subsequent establishment of the Sex Discrimination Division as part of the NHRC Division are clear indications of the formal commitment of the Republic of Mauritius to address in institutionalized forms human rights issues that have for too long been neglected. Further, the Criminal Code Amendment Act of 2003 added a new section 78 to the Criminal Code and created the offence of "torture by public official". It provides that it is an offence for any public official acting in an official capacity to intentionally inflict "severe pain and pain or suffering, whether physical or mental, on anyone

(i) To obtain a confession or other information from that person (ii) To punish that other person for an act which that other person committed, or is suspected to have committed (iii) To intimidate or coerce that other or a third person or (iv) For any reason based on discrimination of any kind"

3. It is noteworthy that the NHRC stated the following at paragraph 20 of its annual report for the year 2002:

" Dealing with complaints against police has constituted a major part of the Commission's work, despite the fact that there exists within the Police Department a Complaints Investigation Bureau (CIB) in Rose Hill to deal with complaints against the Police received from the different police stations all over the island or at the CIB itself."

4. At paragraph 21 of the same report the NHRC noted the following: "Police brutality was reported to be physical and verbal. Quite a few complaints came from people suspected of having committed offences who complained that they had been beaten by the police investigators to extract confessions from them. Some claimed that the confessions had been obtained through torture and that they had not committed the offence they are accused of."

5. Indeed the NHRC noted that from 1999 to Mid March 2004 no less than 2,851 cases were reported to the CIB. For the year 2002, just after the setting up of the NHRC, 731 cases were reported and in 2003 alone 830 cases were reported. From January 2004 to Mid- March 2004 114 cases were reported. These figures indicate the prevalence of police misconduct, or to be more precise, the prevalence of unlawful and criminal acts being committed by the very police responsible for preventing and repressing unlawful and criminal behaviour.

6. In Chapter 11 of its annual report for the year 2003 the NHRC states at paragraph 15:

"The Commission continued to receive complaints from suspects alleging that they had been brutalized and forced to confess to crimes they did not commit. In other cases suspects alleged that, in spite of being brutalized, they did not confess. It would appear that some members of the Criminal Investigation Department are still not well versed in modern investigation techniques, and insist on using illegal methods of pressurizing suspects by subjecting them to physical brutality or humiliating and degrading treatment, for example, by causing them to undress".

7. JUSTICE views with dismay that the NHRC is most reluctant, indeed actually refuses to characterize certain criminal actions of police investigators as cases of torture by public officials. The quaint but euphemistic terminology that is preferred defines the criminal offences of inflicting wounds and blows and of torture by public official to "pressurizing suspects by subjecting them to physical brutality...."Nor does the NHRC anywhere in its report informs anybody whether the Director of Public Prosecutions has prosecuted one single policeman in the year 2003 for having beaten up a suspect. It is truly alarming that the NHRC and the government seem to be unconcerned that police officers who beat up suspects are not brought to trial before a criminal Court.

8. Yet, in the next paragraph, we read that "since its inception" (in 2001) the NHRC has endeavoured to sensitize policemen to the importance of their civic role and to persuade them to abandon their (sic) old habits." It is most unfortunate, and indeed deplorable, that the NHRC refers to this criminal activity of using force to extract confessions as " old habits" just as others have explained the beating up of detainees as a "cultural" trait of Mauritian society and there is not much to be done except to live with it.

9. Would it make sense for a human rights organisation to explain that suspects in police custody have the "old habits" of receiving blows? The statistics mentioned above in paragraph 5 demonstrate that there were more than two complaints per day in the year 2003 and again two complaints a day in the first two and a half months of the year 2004. We can sadly deduce therefore that many police officers pay little, if any, heed to the moralizing of the NHRC about the importance of being civic.

10. It would be more correct to say that the de facto policy of impunity explains why police officers do not desist from their "old habits" of extracting confessions by using unlawful violence. Beating up a suspect is not about having a habit. It should not be presented like being addicted to a drug. Least of all by a Human Rights Commission. It is a criminal offence and should be dealt with as such. There should not be a discriminatory way of dealing with cases where policemen beat up a citizen or a detainee and cases where a citizen beats up another citizen. By failing to prosecute police officers who commit such an offence, the Republic of Mauritius violates Article 2 of the Covenant.

11. The seriousness of such a situation cannot be minimized. In the same paragraph 16 we get confirmation from the NHRC itself that the violation occurs on a large scale:

"In Mauritius no research has been carried out to compile statistics on the proportion of confessions resting on confessions. There are strong indications that the majority of criminal prosecutions fall in that category. Few challenges of confessions (voir dire) succeed in Mauritian Courts with the result that a high number of convictions are based on confessions. One may wonder whether such a situation is a healthy one for our criminal justice system. From the human rights perspective this gives rise to concern."

What is left unsaid is that it is more than likely that quite a number of citizens are convicted even though they are not guilty. It also means is that the convictions were obtained by means of a crime as it is unlawful to extract confessions by force. It also explains why so many accused parties who supposedly confess voluntarily retract their confessions once they are beyond the reach of the police. Yet they remain trapped because the police prosecutors invariably show the Court the signature of the accused party at the bottom of the confession and a conviction ensues.

12. JUSTICE requests the Committee to urge the Republic of Mauritius to take the necessary steps to ensure that such a state of affairs be improved urgently. Measures should be adopted to ensure that confessions to serious offences should not be signed without the presence of Counsel or of independent witnesses.

13. JUSTICE considers it necessary to examine why police violence has continued unabated in spite of the efforts of the NHRC and in spite of the existence of the Complaints Investigation Bureau. The NHRC is invariably presented to the public as being "independent" from the executive arm of government, the Cabinet of Ministers. The truth is different. Section 3 (4) of the Act provides as follows:

"The members shall be appointed by the President, acting on the advice of the Prime Minister, on such terms and conditions as he thinks fit".

The Prime Minister is also the minister responsible for the police force and for the State prisons. He himself selects the members of the NHRC that are called upon to investigate complaints against police officers and prison officers. It is to be noted that one of the present members of the Commission was appointed after a lengthy career in the public service where he served as Permanent Secretary to the Office of the Prime Minister.

14. JUSTICE is of the view that the mode of appointment of its members diminishes considerably the credibility of the NHRC and its claim to independence. It cannot be said to be independent of the Executive. Ironically, the present Prime Minister himself denounced this mode of appointment of the members of the Commission in April 2001 when the Bill to set up the Commission was debated at the National Assembly. He was then the Leader of the Opposition and correctly criticized the government of the day for setting up a sham Human Rights Commission with limited powers. In an apparently sincere but certainly passionate speech he denounced the control that government would have over the Commission. This is what can be read in Hansard, the official record of debates of the National Assembly:

"Let me make it clear that the MMM (Mouvement Militant Mauricien is the political party led by the present Prime Minister), in the Opposition, is pour la mise sur pied of a Human Rights Commission. Et tel n'est pas le cas dans ce projet de loi. Je vais entrer dans de longs details. Nous sommes pour la mise sur pied d'une vraie commission des droits de l'homme, nous sommes contre la mainmise gouvernmentale (complete governmental control) qui est effectuee a travers ce projet de loi."

Translated in English, his position then was that he was against the Executive monopolizing the political control of the commission.

15. JUSTICE and other non- governmental organizations share this view that the Human Rights Commission is not independent from the Office of the Prime Minister. We can hardly be wrong when the politician who is presently the Prime Minister explained to the National Assembly the following when he was the Leader of the Opposition:

" When you go through all the documents that the United Nations have produced as guidelines for setting up Human Rights Commissions, Mr. Speaker, Sir, the first thing that they say is that such Commissions must be and must be seen to be independent from the Executive; and the Executive in all countries is the Prime minister. So this Bill goes against this priority of all priorities, as far as the United Nations is concerned. This is the first point on which the United Nations recommendations harp: that such Commissions must be totally independent and must be seen to be independent from the Executive, from the Prime Minister. And, yet, here we see that it is the Prime Minister who chooses the chairman and the members. When we say that the President appoints, on the advice of the Prime Minister, we know that it is the Prime Minister who chooses the Chairman and the members of the Commission. This is wrong (emphasis added), and later on, I'll comment on the first amendment I have circulated."

16. We have quoted extensively from the official records of the National Assembly not so much because it is our purpose to embarrass the present Prime Minister and his political party or to expose his inconsistency. Our brief is to defend human rights and we do so by sticking to facts and not by politicking. We quote extensively what the Prime Minister said because he talked sense and he leveled at the time a number of valid criticisms and his arguments still make sense today. Indeed they were our own too and they still are. This is why it is best to quote him again on the issue of the security of tenure of the Commission, its staff and its total reliance, (though it would be more correct to say dependence) on the police to investigate complaints against police officers:

"In the same way, the United Nations asks that the security of tenure of the members be guaranteed. Just like judges, they should not be in a position where they can be removed or be threatened with removal. Their security of tenure must be guaranteed. And what do we have here, Mr. Speaker, Sir? We have Section 3 subsection 7…Subsection 7 says-

"The President may, on the advice of the Prime Minister, remove any member from office for inability to perform the functions of his office, whether arising from infirmity of body or mind, or for misbehaviour"

The way it is drafted clearly means that it is the Prime Minister who will decide and the President has to follow his advice. It is the prime Minister who will decide whether any member of the Commission misbehaves. We know how general the term "misbehaviour" is. So, this is why we say there is mainmise gouvernmentale. The appointment is done by the Prime Minister and the removal without security of tenure is done by the Prime Minister. Let me go on when we talk of mainmise gouvernmentale. Can you, imagine Mr. Speaker, Sir, that this Commission will not have a staff of its own, over which it has control. Public officers will be seconded. Somebody to the level of PAS (Permanent Assistant Secretary) will be Secretary to the Commission. This is not serious at all. They won't have officers of their own. They won't control their staff. Public officers will be seconded to the Commission. We can go on like that. For investigation purposes, when the Commission will want to investigate –it has received information- they won't have a staff of their own.

They musk ask the Commissioner of Police for Police Officers or they must ask the Secretary to the Cabinet for public officers to investigate on their behalf. This is again not serious.

17. JUSTICE finds it necessary to repeat that the Prime Minister's criticisms of the NHRC are valid because they identify its structural limitations and expose the unfortunate and unpleasant truth that the Commission was deliberately set up in such a way as to render it dependent on the Office of the Prime minister, on the State and on the government of the day. It is not therefore surprising that such a Commission tends above all serve what the government of the day perceives to be its own interest and the interests of the State. It cannot and does not seriously promote and protect the human rights of the citizens. It is not meant and was not ever meant to do so. The Committee will perhaps find it shocking to learn that the NHRC does not have one single investigator or one single lawyer in its staff. It is not financially independent. Financially, it is dependent on the Office of the Prime Minister.

18. JUSTICE requests the Committee to urge government to take the necessary steps to ensure the independence of the NHRC. In this respect Government knows already what has to be done. It would simply have to implement what the Prime Minister himself demanded when the Human Protection Act was debated in the National Assembly. After having correctly denounced "la mainmise gouvermentale" he proposed the following:

"As we know, the United Nations generally recommends that when Human Rights Commissions are set up, this should not be done by way of a Bill but by amending the Constitution, by putting such Human Rights Commissions in the Constitution itself (emphasis added). This is not what we are doing. We are voting a Bill and this why I repeat that the bottom line remains in the final analysis, it is the Constitution, the supreme law of the country, the wording, the provisos of the Constitution and an independent judiciary that is the real guarantee, the real protection as far as human rights are concerned. Therefore we are in favour of the setting up of the Human Rights Commission, but not of that kind. The shortcomings are many and I"ll go into that now, Mr. Speaker, Sir."

19. JUSTICE and many other non-governmental organizations support unreservedly the requirement that Human Rights Commissions should be imbedded in the Constitution. We can only regret, as surely the present Chairman of the NHRC would too, that this has not been done already even though the Prime Minister himself claimed in 1998, seven years ago, that he vehemently espoused what the United Nations generally recommends. It is manifestly high time after nearly five years in office that the Prime Minister takes action that matches his verbal professions of adherence to UN recommendations in respect of the setting up of Human Rights Commissions. 20. It is a matter of historical irony that the Prime Minister himself, when he opposed "la mainmise gouvernmentale" i.e. the political control of the NHRC by the Executive, he also warned the National Assembly:

"This is why, Sir, we talk of a mainmise. This is no good at all. All people who are serious about human rights will laugh at us. This is not correct at all and that is why I have proposed certain amendments that I might as well comment upon now.

21. JUSTICE endeavours to be serious about human rights and, though we regret his failure so far to implement what he preached, we have never been tempted to laugh at the Prime Minister who has had ample opportunity and time to correct what he had correctly criticized as being a "mainmise" and "not correct at all." It is not too late for the necessary correction to be made through appropriate constitutional amendments if the political will exists to strengthen the defence and the promotion of human rights in the Republic of Mauritius. JUSTICE again requests the Committee to encourage government to move in the direction prescribed by the Prime Minister himself seven years ago.

22. Any Human Rights Commission that is dependent on the Executive, (in practice on the Prime Minister alone), is worse than a laughing stock. It is fraught with an inescapable contradiction: it has to defend the State just as the Prime Minister has to and it also has to enforce respect for the human rights of citizens when most often these human rights are violated by individual agents of the State or by State institutions. Its scope for action and its capacity to defend human rights consistently and effectively are severely limited. It dares not criticize the Executive and has to restrain its criticisms of State agents and institutions guilty of human rights violations whilst simultaneously having to appear as an ardent and consistent defender of the victims of human rights violations.

23. Hence, as mentioned above, the need to resort to euphemisms and to terminology that is acceptable to the Executive and apparently appeasing to the victims. We can understand why in its second annual report, the NHRC, whilst acknowledging the prevalence of police violence, chooses to refer to police unlawful violent acts as "excessive zeal". In fact, the terms police violence are very seldom, if ever, used. "Ill-treatment" or "police brutality" are preferred. The word torture is also avoided. The NHRC opts for "questioning that tends to be a bit rough and physical" but omits to measure the "bit" and remains quite indifferent to how the victims who are at the receiving end will describe their ordeal... A policeman who inflicts wounds and blows and beat up a detainee translates into a policeman who uses "muscular methods".

24. It is not possible for the NHRC to do justice adequately in the dependent situation it has been put in by the Executive. It becomes sufficient that some believe that an effort is being made to deal with the injustices. The NHRC appears to accept this tame and limited function with apparent ease, even though recently one of its members, a former Solicitor-General, resigned for reasons never made public. Undoubtedly, most of the time, the effort is real and sincere enough, but the end results have little to do with effective human rights protection and nothing at all to do with the repression of human rights violations. Not surprisingly, the NHRC, since it has no powers of taking sanctions and of enforcing them, ends up by expressing its "hope" that policemen will make an effort to have nicer manners, to be more civic and to try their best not to beat up people.

25. The problem is compounded by Section 3 (2) of the Human Protection Rights Act that provides:

"the Chairman shall be a person who has been a Judge".

JUSTICE has no objection in principle that a retired judge of the Supreme Court should be the chairman of the NHRC. What matters is whether a human rights perspective is adopted. What matters is the mind- set of the judge, his approach and his past experience in the field of human rights protection. We also do not think that only a retired judge is qualified for the position. Judges interpret existing laws and only challenge them when they conflict other existing laws. The sphere of human rights is one where often existing laws have to be challenged, improved or repealed. There is a necessity often to campaign militantly for the repeal of laws that restrict human rights. Judges of the Supreme Court have many qualities but militant advocacy is generally not expected of them and would most probably not befit their position and their function.

26. We therefore consider that Section 3 (2) is unduly restrictive and should be amended in order to include qualified persons who may not be judges. Indeed we agree with the Prime Minister when he expressed his concern seven years ago that the mind-set of a judge might not be the most appropriate one for a Human Rights Commission. He then proposed during the debate at the National Assembly that the Bill should be amended as follows:

"The Chairman shall be a person who has a high standard of personal integrity and probity exhibited in previous offices held".

The Prime Minister took care to explain that he had studied both United Nations and Commonwealth recommendations and what he proposed was recommended by the Commonwealth for the chairmanship of Human rights Commissions. As he put it then:

"It could be a judge, it could be somebody else. You can think of other people who can do a better job there than a Judge. A judge has been a judge his whole life, there is a mind- set, there is an approach to things and you can imagine people better qualified than judges even to chair a Human Rights Commission."

27. The first and present Chairman of the NHRC has done a considerable amount of work in spite of the structural limitations imposed by the Human Rights Protection Act. Some of it quite remarkable and courageous deed. Chairman Seethulsing has called for a stop to police arresting people for non-arrestable offences. At page 31 of his second annual report he pointed out the following:

"The exact meaning of an arrestable offence has to be made clear to police officers. There is a tendency to arrest people for minor offences and to detain them, whereas this may be totally unwarranted. The NHRC believes that people should not be necessarily detained in police cells.

He has also suggested at page 32 of the same report that it is not acceptable that the police should judge the police:

"The final outcome of cases, after enquiry and report by the Commission, gives rise to concern. In particular, the fact that the Disciplined Forces Commission has delegated a crucial part of its disciplinary powers to the Commissioner of Police means that where sanction has to be taken against a police officer arising put of a complaint to the Commission, ultimately it will be the police judging the police."

He has also formally informed the Secretary for Home Affairs that he is not satisfied with the present situation whereby "it is a police officer who once more has to inquire into a complaint made by a member of the public against a fellow police officer, a most unsatisfactory situation."

28. This situation is an infringement of Article 2 of the Covenant. It has unfortunately not ended. JUSTICE therefore requests the Committee to urge Government to take the necessary remedial measures in this respect.

29. JUSTICE reports with satisfaction a concrete instance when a suggestion of Chairman Seetulsing in respect of poor prisoners remanded to jail who stand accused of minor offences and who cannot afford to pay the high expenses involved to be release on bail has been favourably acted upon by Government. His suggestion that they should be released upon on parole has led to the costs of release on bail being drastically reduced in these kinds of cases. Further, there has been since a noted tendency for Courts to grant "cheap bail" to a large number of accused parties immediately after their arrest. JUSTICE requests the Committee to commend Government for the measures it has taken in this respect.

30. Still, there are further remedial measures to be taken for the Republic of Mauritius to meet its obligations under Article 9.3. Nearly one third of persons detained in prisons are on remand awaiting trial for periods that very often exceed four years. Chairman Seetulsing recommends as follows:

"that detainees be released from detention pending their trial after 12 months, except if they are being detained for serious drugs offences or for murder. Otherwise the detainees would be released on bail pending trial."

JUSTICE considers that this important recommendation respects the human right of citizens to the presumption of innocence and to liberty unless they have been convicted of an offence and sentenced according to law. It requests the Committee to urge Government to implement this specific recommendation of Chairman Seetulsing.

31. Section 4 (2) (a) of the Human Rights Protection Act provides as follows:

"The Commission shall not enquire into any matter after the expiry of two years from the date on which the act or omission which is the subject mater of a complaint is alleged to have occurred."

It must be observed that this same provision is also to be found in the Public Officers Protection Act and it bars legal proceedings against public officials for any wrongdoing after 2 years. JUSTICE considers that this provision should be repealed for one obvious reason: it unfairly and unreasonably prevents a human rights complainant to have access to the NHRC simply because 2 years have elapsed since the alleged violation has taken place. There can be a host of circumstances and factors that explain why she/he has been unable to file a complaint. This unfair provision effectively guarantees impunity for human rights violations on the arbitrary ground that 2 years after a violation is supposedly time enough to file a complaint.

32. Again, JUSTICE refers to what the Prime Minister said in his speech to the National Assembly when the Human Rights Protection Bill was debated. He found this provision to be horrendous but he has so far not done anything to get rid of it. It is most edifying to quote him extensively as he gives very good reasons why this provision has no place in human rights legislation:

"If that (the limitation period of 2 years) was taken into consideration by the House of Lords, Mr. Pinochet would be singing along the Thames. This is the kind of legislation we must not have, especially when we are dealing with kids. Let us say that a child has suffered terrible human rights violations; we know that kids sometimes cannot, until they have grown up, face what they have gone through. There have been examples recently of children and women who have gone through hell through a number of years and then they shape up and manage to face what they have to face. Now we put a barrier of two years. Therefore, especially as far as kids and young girls are concerned, this is totally unacceptable. I did not hear any justification for that limitation and this is really a shame. This should be done away with. (Emphasis added)

Equally important is what the Prime Minister had to say about how this limitation period of 2 years was absurdly unfair in respect of the issue of the Ilois people who were unlawfully expelled from their homeland by the United Kingdom:

"There is also another example, this interesting case of the Ilois people from the Chagos Archipelago. It is clear that they have suffered human rights violation. By adopting that clause we exclude any action on our national territory from any member of the Ilois community. We exclude them completely….. But human rights do not last only two years. Human rights are sacred, human rights must be protected over a whole life, and even after death. Some people might have killed, or might have been killed, as in the case of Pinochet and so on. Therefore we strongly object to that 2 years' limitation and we believe that this should be done away with, Mr. Speaker, Sir.

33. JUSTICE has another example in mind: the case of a popular singer called Kaya who was found dead in a police cell and whose death in February 1999 gave rise to a popular revolt and to this day his death has not been accounted for satisfactorily. As the law stands now, the NHRC cannot enquire into his death. JUSTICE requests the Committee to draw the attention of Government that this shameful 2 years' limitation that was so passionately denounced by the Prime Minister himself should be "done away with" not only in the Human Rights Protection Act but also in the Public Officers Protection Act. This limitation of two years goes against the letter and the spirit of the Covenant

34. JUSTICE is of the view that the Protection of Human Rights Act should be amended to allow it to defend and promote human rights adequately. The assistance of the Office of the High Commissioner for Human Rights should be sought in this respect. Further, the independence of the NHRC should be secured by entrenching it in our Constitution. Appointments if its members should be made by an independent institution such as the Judicial Services Commission and after a process of consultations with relevant non- governmental organisations and its membership should include lawyers from the Bar Council, representatives of trade unions, women's organizations and other relevant organizations.

35. Paragraph 6 of the FPR seems to make much of the fact that "Mauritius has recently ben quoted in the press as being an African success story where democracy and literacy and free trade are working together to attract to investment, to raise incomes, create opportunity and to give hope to the people."

True it is that various governments have deployed considerable efforts and resources to give foreign investors and foreign journalists an image of Mauritius as a democratic state that should inspire the whole African continent. Indeed, too often, various Cabinet Ministers including successive Prime Ministers tend to get carried away and become prone to propagate ad nauseam the immodest claim that Mauritius is generally regarded as a shining example to the whole world in almost every field of human and social endeavour, save and except space exploration.

36. Criticism of this utopian image of a paradise that tourists, businessmen, economists, anthropologists, etc. as well as politicians should visit all year round is denounced as being "unpatriotic". But the economic and social as well as the political realities of Mauritius demonstrate a considerable gap between the wonderful image we want the international community to believe in and the substantial denial and violation of human rights daily experienced not only by large numbers of Mauritian citizens but also by thousands of immigrant workers.

37. Paragraphs 3 (1) (a) of the FPR states that one the functions of the NHRC is "to enquire into alleged violations of human rights"and paragraph 3 (1) (b) empower the NHRC "to enquire into written complaints from any person against an act or omission of a member of the police form in relation to him".

38. In spite of the generality of these provisions the NHRC, in practice, has for some time refused to enquire into the numerous cases where a detainee alleges that he has been beaten by the police in order to sign a confession of guilt. The pretext given is that the police have filed 'a provisional charge' against the detainee and the NHRC has adopted the policy of "not interfering with the police inquiry and the powers of the Director of Public Prosecutions.

39. JUSTICE has already brought to the attention of the NHRC that this policy does not comply with the letter and the spirit of the aforementioned provision. It is also absurd. Such a policy objectively encourages police officers to beat up suspects to obtain confessions of guilt. Once confessions are obtained under duress, the police immediately files provisional charges. Indeed often provisional charges are filed hours or the next day after the arrest. Then the detainee is beaten up and forced to sign a confession of guilt.

40. JUSTICE considers that the NHRC negates one of the very important reasons for its existence by refusing to investigate a large number of cases of allegations of police violence against persons detained in police cells and against whom the police have filed a provisional charge. JUSTICE considers this policy to be unlawful inasmuch as it deprives many detainees of the protection they are entitled to under the Protection of Human Rights Act. Such a policy also violates Article 2 of ICCPR.

41. It is instructive to report at some length one of the few notable exceptions to this unlawful policy. The NHRC investigated a complaint made on 11 May 2001 against the police by one Mrs. Martine Desmarais even though the police had already filed charges against her for allegedly conspiring to obstruct a police inquiry. The charge was dropped more than a year later without any explanation. On 20 March 2002 the NHRC determined that her complaint was justified and officially informed her that "there has been a violation of her constitutional rights since you were unduly deprived of your liberty, refused access to your Counsel and subjected to inhuman treatment at Albion Police Station." It is to be noted that the NHRC refused to identify the police officers involved in spite of being queried to do so.

42. The NHRC referred the case to the DPP under Section 4 (a) (i) of the Act but to this very day, four years later, the police officers have not been prosecuted in spite of numerous written and oral representations made by her Counsel to the DPP and to the Prime Minister. The latter actually wrote an official letter to Ms. Martine Desmarais stating that criminal proceedings against the police officers and the trial will take place at the same time as 'the main case". In fact, the Prime Minister made a serious mistake of fact, to put it mildly, in his letter: no criminal proceedings had ever been initiated and no trial was ever and is still not scheduled. Further, the Prime Minister refuses to this very day to clarify the situation by explaining what he meant by "the main case". His Office purely and simply did not respond to letters from Mrs. Desmarais and from her Counsel.

JUSTICE considers that in this case The Republic of Mauritius has violated Articles 2 and 7 of the ICCPR.

43. Paragraph 3 (3) of the FPR refers to the Complaints Investigation Bureau (CIB) set up in 1999 to investigate all cases of complaints against the police. What is not stated is that the CIB is not an independent body. It is also not explained that the CIB operates under the direct supervision of the Commissioner of Police who himself has to report to the Prime Minister in respect of matters of policy. What is not also stated is that the CIB is not only poorly manned but its entire staff is made up of police officers. We therefore have a situation where police officers investigate allegations against their own colleagues. The police are both judge and party. Not surprisingly, the CIB enjoys little credibility among the public.

44. This explains the disparity between the very few instances when police officers are prosecuted and the large number of complaints that police officers have inflicted wounds and blows upon detainees in their custody. The incriminated police officers are never suspended while the investigation is being carried out. This contrasts with cases of allegations of corruption against police officers being investigated or prosecuted for taking bribes. They are then suspended till the case is determined. Not only the investigations in cases of police violence against detainees rarely result in prosecutions, but often the outcome of the investigations is not even communicated to the complainants and their Counsel.

45. JUSTICE has consistently and publicly drawn the attention of Government that, in practice, the NHRC is unable to take any sanctions against police officers it has found guilty of violations of fundamental constitutional rights and of Articles 2 and 7 of the ICCPR. These police officers therefore enjoy a de facto impunity precisely because prosecutions by the Director of Public Prosecutions are so rare, indeed almost inexistent. Moreover, the Commissioner of Police also refuses to exercise his disciplinary powers and sanctions police officers involved in beating up detainees.

46. In the case of Mrs. Martine Desmarais mentioned above, to add insult to injury, one of the Police officers involved, one Detective Inspector Raddhoa, instead of being prosecuted by the Director of Public Prosecutions he was actually decorated in July 2001 "for good service" and received his medal at the Presidential Palace in the same ceremony with the then Deputy Prime Minister, now the present Prime Minister, who was also decorated!

47. Subsequently, his notoriety as an investigator too prone to use "muscular methods" was such a political embarrassment that he was removed from the Criminal Investigation Department and discretely shelved elsewhere in the police force where he became almost invisible. The DPP has still not found time to initiate criminal proceedings against him in spite of the adverse findings of the NHRC. JUSTICE considers this situation to be quite scandalous.

48. JUSTICE wishes to emphasise that inflicting wounds and blows upon a detainee (very often when he is handcuffed) is a criminal offence under Mauritian Statute Laws. Government seems to be oblivious of this elementary legal truth and the consequences that should ensue. By failing repeatedly to prosecute police officers who commit such an offence as required by the rule of law, the State is de facto violating the principle of equality of all citizens before the law as if police officers are above our criminal law and are not amenable before our Courts when they beat up prisoners.

49. This unlawful policy of granting this de facto impunity to police officers was recently and manifestly extended to prison officers. It is not accidental that the FPR devotes little attention to the serious incidents that occurred in the early evening of 26 September 2003 at the Central Prison in Beau Bassin. Some 25 prisoners, many of them suffering from HIV, were grievously beaten up in a carefully planned operation by a newly created special unit of prison officers known as Prison Security Squad (PSS) and led by the Deputy Commissioner of Prisons. Unlike other prison officers, the PSS are armed with batons and are outfitted in a manner similar to military personnel. This special unit was at the time and remains answerable to the Office of the Prime Minister.

50. Several of the prisoners had limbs fractured and most of them suffered from head injuries with considerable bleeding. One of them, Wendy Lafleur, was in a coma for a week as a result of severe blows that broke his skull. Several prisoners, who had been injured, including those with fractured limbs, were left in their cells without any medical treatment for more than 48 hours. There was general public outrage and the media denounced this orgy of violence.

51. The Prime Minister refused to suspend the PSS officers involved on the grounds that this would adversely affect the "morale" of the prison staff. He also told the National Assembly that he had made a "deal" with the father of the said Wendy Lafleur. The father had been charged with assaulting a prison officer in a totally separate incident outside the prison on another previous occasion. The deal appeared to be that charges against the father for a minor assault would be dropped and in return the prison officers who had caused grievous bodily harm to some 25 prisoners would not be suspended. JUSTICE publicly denounced this unlawful and scandalous approach to a major crime and urged the Committee to request clarification from the Prime Minister.

52. Subsequently, the Prime Minister informed the National Assembly that a police inquiry as well as a second inquiry by the NHRC would be conducted and that the House would be kept informed of the conclusions of the inquiry. He gave the usual solemn undertaking that there would not be a "cover-up" (his own words).

53. JUSTICE deplores the fact that the conclusions of both inquiries have not been made public. The Prime Minister did not keep the solemn undertaking he gave to the National Assembly. As Minister responsible for the Central Prison, nearly two years later, he has not yet informed the National Assembly, the injured prisoners themselves and their' families what are the findings of these two inquiries.

54. However, Counsel for the injured prisoners was informed that the police inquiry found that several PSS officers had committed serious criminal offences against Wendy Lafleur and other prisoners. These PSS Officers were named and the cases were referred to the Director of Public Prosecutions to determine what legal proceedings should ensue. In November 2004 Counsel has taken up the matter with the Director of Public Prosecutions with the vague unofficial response that the matter is still under consideration. Since then both the Prime Minister and the DPP appear to have lost interest in the issue with the result that the incriminated PSS officers still enjoy a de facto immunity from prosecution.

55. JUSTICE requests the UNHRC to urge the Government to take the necessary measures in order that the incriminated PSS officers are prosecuted according to law as it is manifest that Articles 7 and 9 of the ICCPR have been violated

56. JUSTICE has to point out that the NHRC also did not make the findings of its own inquiry public. Indeed, the NHRC, instead of informing the injured prisoners of the outcome of its own inquiry, limited itself to address them a one sentence letter to the effect that the "police inquiry" had been referred to the Director of Public Prosecutions. It seems that the NHRC did send a report to the Minister of Justice, but the latter too has remained totally silent about the whole issue. The NHRC did not even bother to inform the prisoners who had given evidence of its findings. It also did not inform Counsel or the public whether it found if the prisoners' fundamental human right to security had been violated or not.

57. JUSTICE requests the UNHRC to urge the Government to communicate to the complainants and to their Counsel the findings of the inquiries conducted by the police and the NHRC.

58. Section 4 (3) of the Human Rights Protection Act provides as follows:

'The Commission shall, in the first place, attempt to resolve any complaint, or any matter which is the subject of an enquiry pursuant to subsection (1) (c) by a conciliatory procedure."

At first sight this seems innocuous enough inasmuch as it enables the NHRC to attempt reconciliation between a human rights complainant and the party who committed a right violation. This attempt at reconciliation takes place before the enquiry is conducted. The NHRC is not at this stage aware of all the circumstances including any aggravating ones that are involved. Yet, in spite of its ignorance of the possible gravity of the act or the omission complained of, the NHRC proceeds to request the complainant if she/he is willing to "forgive and forget" the human rights violation that has just been brought to its jurisdiction. Without even hearing the case, the NHRC is compelled by this provision to propose to the complainant to forgive and forget.

59. Thus, we have the following surrealistic situation:

NHRC Chairman: You have filed a complaint to the effect that you have been insulted and beaten by the police. However, if the policeman is willing to apologise and explains that he is very sorry he beat you up because he made a mistake as to your identity. He was given a description of a man suspected of having committed a theft and that suspect looks like you. This is why he arrested you and beat you by mistake. He was doing his duty trying to catch a thief, but he made a mistake. He is sorry you were hurt. The law requires me to ask you whether you are willing to excuse him and if you do, the matter ends here. If you do not want to excuse him, then I will enquire into the matter"

Complainant stays silent and looks stunned. He turns to his Counsel (if any) in amazement because he did not obviously expect that he would have to make such a choice.

NHRC Chairman: Well, what do you say? What do you want to do?

NHRC Member chips in: "In life mistakes happen. We all make mistakes. The policeman now knows you are not a thief. Surely, he would not have beaten you if he knew you were not a thief. You agree we all want policemen to catch thieves.

Complainant is still confused. Chairman proposes he goes out for a minute to have a chat with Counsel. Complainant and Counsel come back. Complainant states he is not willing to forgive and forget because the policeman was really nasty and there cannot be any excuse for beating up anybody like he had been beaten.

The Chairman then proceeds with the enquiry.

60. This scenario has many variations. I have personally witnessed such scenes as Counsel and participated in them too. In one case the complainant stated he was willing to forgive if the policeman paid him money as damages. But what about the many cases, in fact the vast majority when complainants do not benefit from the advice of Counsel. Alone as they are, facing the full authority of the NHRC in unfamiliar surroundings, it is not surprising that quite a number of complainants do say they want to forgive.

61. JUSTICE is of the view that the provision that compels the NHRC to attempt to "reconcile" the complainant to a policeman who has committed a criminal offence as well as a human right violation defeats the very purpose of human rights legislation and the very purpose of the NHRC itself. Such a provision does not take into account the obvious imbalance between the complainant who assumed the NHRC would redress the wrong he has suffered and suddenly found himself compelled to accept or reject an apparently reasonable proposal coming from such an impressive institution like the NHRC.

62. Human rights education is quite novel and recent in Mauritius even though it is true that an increasing number of people are now willing to denounce human rights abuses. Very often human rights complainants are poorly educated with a life experience of being fearful of policemen, magistrates and judges. It is often unthinkable for them to dare to reject a proposal coming from a judge, particularly if it concerns a policeman or a group of policemen.

63. JUSTICE considers it to be most inappropriate and unfair to put human rights complainants in such a situation. The choice of a complainant to accept her/his "reconciliation" in such circumstances amounts no less to the NHRC itself being the instrument whereby human rights violations are condoned. The NHRC puts itself willingly in a position where it is compelled to assist and promote a process whereby criminal offences against the dignity and the security of a citizen are never brought before a Court of law.

64. JUSTICE considers that such a compulsory process negates and violates paragraph, 3(a), 3(b) and 3 (c) of Article 2 in part 2 of the Covenant that require the Republic of Mauritius to meet precise legal obligations and entitle its citizens to effective remedies that are legally enforceable by competent authorities. Conciliation and reconciliation are not precise legal remedies and they are certainly not enforceable by a Court of Law or any other competent authority.

65. JUSTICE requests the Committee to urge Government to take the legislative measures to remove the said provision from the Human Rights Protection Act.


Part 2

Article 1 1. In response to Government's statement that it has "continuously raised the issue of the Chagos Archipelago in the international fora of the United Nations General Assembly...", we wish to point out that the Mauritian Government does not explain why, after having tabled an official motion to put Diego Garcia and the Chagos Archipelago on to the UN General Assembly Agenda in 1990, the Mauritian Government some weeks later WITHDREW THE MOTION. Why? 2. Government has since then done nothing to put the issue on the UN General Assembly Agenda so as to request support for a judgement from the United Nations International Court of Justice at The Hague. 3. The Government did threaten to leave the Commonwealth in June, 2004, in an attempt to show that it intended to put a case before the ICJ, and the UK Government quickly changed its rules of jurisdiction for the ICJ (so as to disallow jurisdiction for ex-Commonwealth States and disallow jurisdiction for disputes dating from prior to the Chagos dispute) so as to deliberately avoid any ICJ judgement being binding. However, it would seem clear that the Mauritian Government was only posturing. No attempt has been made to go the UN General Assembly. Why? 4. The Islands are still being illegally occupied, their waters illegally fished, and the inhabitants who were forcibly removed are still not able to return. 5. With the persistent information that the USA Camp Justice military base on Diego Garcia houses, or has housed illegal prisoners, or has overseen the "rendering" of prisoners to other States, the Mauritian Government has taken no steps to verify this information, nor has it even informed the Red Cross who have the right to visit, nor to organize for journalists to visit this part of Mauritian territory. 6. The Prevention of Terrorism Act Section 18 (1) compels the Minister of Foreign Affairs in Mauritius to comply with a request from "a foreign State" for investigation or prosecution of an offence related to terrorism, thus violating Article 1 of the Covenant which protects the right of a people to freely determine their political status and pursue their social development. The wording of the law permits no refusal from the Mauritian Minister.

7. There is no reciprocity in this legislation, but merely the concession of sovereignty, and the allowance of grave inroads into principles relating to the admissibility of evidence. For authentification of any document (emanating from foreign states), it suffices that "it purports to be signed or certified by a Judge, Magistrate or officer in or of a foreign State." (Section 20).

8. Section 10 of the law also permits the Mauritian Minister of Foreign Affairs to declare any person, including a Mauritian a "suspected international terrorist) on the grounds that, inter alia, "the person is considered as a person involved in terrorist acts by such State or other organization as the Minister may approve." [Section 10 (1) (c). This means that an organization such as the CIA, could inform the Minister in Mauritius that "Mr. X", a Mauritian or non-Mauritian, is considered to have been involved in terrorists acts, and the Mauritian Minister can declare the person or a whole group to be a "proscribed organization". (Section 10 (5) reads: "Reference in this Act to a proscribed organization shall be deemed to include reference to an international terrorist group, and, whenever applicable, to a suspected international terrorist.")

9. We would like to mention the political background to these clauses: the clauses purport to constitute a kind of "proof" that Mauritius, as a state, submits to the United States "foreign policy", so that the Mauritian state can benefit under the African Growth and Opportunities Act passed by the USA Congress. This piece of legislation includes an "extra-territorial" component, whereby the US controls the policies of other countries who want access to its markets, markets which are otherwise firmly closed.

Article 4

10. Government has no real arguments about any "public emergency" existing. They have quoted a case of a shoot-out between tough agents of government and other parties in 1996 on the eve of a Municipal Election (the Gorah Issac Street case) which is not terrorism. They have quoted the burning down in 1999 of a Casino (this happened when an armed robbery was in process and a group of football supporters coming home from a game where the referee had given a last-minute decision that they contested, and they ended up attacking the same Casino that was being robbed). This was also not terrorism. They quoted the February 1999 mass riots when people were angry about the death in police custody of a famous musician. This was not in any way "terrorism". They have also mentioned the case of the false alarm spread by the government itself that someone had put a dangerous insecticide into a cargo of sugar being exported in the ship MS Nisha. If there was any terrorism involved it was the rumour spread by government, and widely believed to have been invented in order to help justify the law that was imminent.

11. There is no emergency that justifies the kind of law that has been passed. We are not aware of the Mauritian State having informed the Secretary General of neither the UN nor any of the other states that are signatories of the derogations it has made. (Article 4(3).

Article 22

12. The Mauritian Government has decided that the Industrial Relations Act (IRA) should be replaced by a new legislation. However, its White Paper is a source of concern from a human rights perspective. The White Paper does the following:

a) It makes registration more difficult by raising the number of workers needed to set up a union, thus infringing free association. This is a request of the trade union bureaucracy, certainly not of workers.

b) The White Paper infringes free association further by giving the Registrar of Associations even wider powers to intervene and to act paternalistically relative to the general assembly of members or of delegates, thus limiting the independence and democracy of trade unions. The Registrar has no such power in respect of companies, for example.

c) While maintaining most of the undemocratic recognition procedures, the White Paper now introduces new ones, including a "de-recognition" procedure. When unions cannot get recognition, it de facto infringes free association.

d) On industrial disputes a large proportion of disputes will not even be recognised as "disputes" at all according to the White Paper.

e) The right to strike is even more limited in the White Paper than under existing legislation, despite the Government's paying lip-service to the right to strike.

f) The concept of "concession bargaining" introduced in the White Paper, for the first time allows labour laws to decrease labour standards for workers, while at the same time doing away with the institutions that guarantee minimum conditions.

13. In general the White Paper offers no change that would allow the trade union movement to defend the wages and work conditions of workers effectively through collective bargaining at enterprise or industry/sectoral levels. With the Government's intention of phasing out existing Minimum Wages legislation (Remuneration Orders) and with "Concession Bargaining" real wages and work conditions will decline.

14. Dispute settlement procedures will be very complicated, if the White Paper becomes law, the danger being that the trade union movement will become more bureaucratised, and that will be to the detriment of workers.

15. The White Paper is no improvement on the existing IRA and will most certainly not bring about more democracy in the field of industrial relations. The IRA should not be replaced by a law based on this White Paper which is potentially even worse than the existing IRA, for working people.

Jean-Claude Bibi For JUSTICE Mauritius. 1 March 2005.

Addendum TO PART 2 Article 2

The Mauritian Government's report refers to Section 16 of the Constitution of Mauritius that "guarantees that no law shall make any provision that is discriminatory either of itself or in its effect, whereby 'discriminatory' means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, caste, place of origin, political opinions, colour creed or sex."

Yet the Mauritian Government's report does not mention that Section 16 (4) (c) makes an exception in the case of "personal laws" where protection from discrimination is not guaranteed. We quote this sub- section from the Constitution of Mauritius:

"16 (4) Subsection (1) shall not apply to any law so far as that law makes provision – (…) ( c) for the application, in the case of persons of any such description as is mentioned in subsection (3) (or of persons connected with such persons), of the law with respect ot adoption, marriage, divorce, burial, devolution of property on death or other like matters that is the personal law applicable to persons of that description."

The Mauritian Prime Minister and Ministers in Government have in the last years made several declarations to the effect that they intend to re-introduce "personal laws" such as the "Muslim Personal Law". Such personal laws discriminate against women. Fundamentalist lobbies who campaign for personal laws in Mauritius point to Section 16 (4) (c) to back their demand, saying that the Constitution makes provision for such discrimination.

Section 16 (4) ( c) needs to be removed so that women, in particular, are guaranteed protection from discrimination in one of the areas where women are most discriminated against and oppressed i.e. within the realm of marriage, divorce, and inheritance.

Article 3

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