Bail or Jail: The Big Picture – Beyond Laurette, beyond DPP v. Dip

07.03.2023

Of course, the state can only punish you after trying you in court. Or so you would think. You get accused, tried – with a right to defend yourself – then you get a verdict, and if guilty, a sentence to punishment. But, if the state jails you before your trial, then we have the bizarre situation of punishment – jail is severe punishment – before the trial. It is abhorrent. And with the arrest and detention on serious drug-dealing charges of the former MSM party agent Bruneau Laurette, now turned populist leader, this abhorrent situation can no longer be hidden from the eyes of the country’s intellectual elite, many of whom supported or still support him. And many of whom habitually cry out for more “law and order”, a euphemism for calling for people they generally see as “vulgaires criminels” and “presumés coupables” to be locked up in jail. 

“Evil Precedent”

Debate rages now after Laurette’s release on bail, and what with the Police Commissioner calling this release “an evil precedent”. And with Prime Minister Pravind Jugnauth calling it “worse than an evil precedent”, and saying it does not “respect the law” and plays into the hands of trafiquants. 

Let us get this strange phrase “evil precedent” out of the way, first. The legal expression “an evil precedent” is a commonly used one. It is, you might say, a dead metaphor. However, as a legal phrase, it is used in criticizing the judiciary and not the prosecution. But, Police Commissioner Dip used the phrase to attack the DPP. In that context, it is not a dead metaphor but an accusation of actually setting an “evil” precedent. So, the drafting is manipulative, a dead metaphor that jumps out of its coffin at you. The Police Commissioner is, in fact, criticizing the Magistrate but he avoids that, presumably to avoid contempt of court, by pretending to criticize the DPP. But, that then means he is calling the DPP or its office “evil”. Whatever the case, CP Dip makes it clear that what is allegedly “evil” is that there are 337 remand prisoners (who, in his communiqué he erroneously refers to as “drug traffickers”), who are locked up pre-trial on drug-dealing charges and who will – and we think this is quite a reasonable expectation – expect to be let out on bail. Not because the Laurette case is a binding precedent – it is clearly not, being decided in a lower court, and in any case bail being a one-by-one decision – but because everyone, quite rightly, expects a degree of consistency from the judiciary. So we should. 

But clearly the Prime Minister and the Police Commissioner believe that anyone arrested on a provisional charge of drug dealing should automatically be denied bail, although a past MSM law to that effect was declared inconsistent with Constitutional rights by the courts, right up to the Privy Council. The ludicrous aspect of the PM and Police Commissioner’s position is exposed when the Police Commissioner himself declares that drug-dealers continue, in any case, their dealings while in prison!

But, the outcry by the middle classes in favour of Laurette’s release and his actual release, show us that a lot of people should be out on bail, and are, instead, locked up in jail before their trial. And this is clearly completely upside-down, if not downright absurd on the part of the state. It means people are being punished before their trial by the day-to-day combined operations of the police, the DPP and the judiciary. How many people?

Jail first, then court case   

Ten days ago, the total prison population was announced to be 2,444. On the same day, 21 February, 52.7% were identified as pre-trial prisoners. So, over half of the people in jail in Mauritius have not even been tried yet.

We live in the bizarre reality of Alice when she has the following conversation when in Wonderland with the all-powerful Queen:

 Queen: “‘Sentence first – verdict afterwards.’ 

 ‘Stuff and nonsense!’ said Alice loudly. ‘The idea of having the sentence first!’ 

  ‘Hold your tongue!’ said the Queen, turning purple. 

  ‘I won’t!’ said Alice. 

  ‘Off with her head!’ the Queen shouted at the top of her voice. Nobody moved.”

Perhaps the other key words in this quote are “nobody moved”. In Mauritius, nobody had moved – except JUSTICE and LALIT – although this absurd situation has existed all along. Now, with the Bruneau Laurette case, at last, there is the beginning of “movement”. Although, sadly, not many commentators in favour of Laurette’s freedom generalize the issue. The Prime Minister and Police Commissioner do generalize it. They want all those accused of drug dealing, at the very least those, to be locked up pre-trial. But those calling for Laurette’s release, instead, just wanted Bruneau Laurette released. And they also, presumably, want people from their own social class and in particular in their own family to be released pre-trial. But as for the other “vulgaires criminels” (though not yet tried), they should, of course, be taken off the streets. Just look how often the press refers to someone en passant in a factual article as “presumé trafiquant” or “presumé coupable”; the press seems not even to notice that it has reversed the presumption of innocence into the presumption of guilt.

1,288 prisoners are in jail before trial, out of the total of 2,444. The figures for those in jail simply because they cannot raise the fine money must be added to these. Figures for 2021-2 are not out yet, so taking an average of 2019 and 2020, we get 475 were in jail because of non-payment of fines, we can get an indicative number to add to the 1,288 bringing us to 1,763, or 72% of prisoners, have not been sentenced to jail – either they have not been tried or they cannot raise the fine money. That means we could close 3/4 of the jails in the country, if we locked up only those who were convicted and sentenced to “prison ferm”. What would be so “evil” about that? It would merely be respecting the fundamentals of judicial process. Bail is the rule, jail the exception. This is the big picture. This must become part of the program on which all opposition parties fight.

And if we succeed, it would mean freeing up money spent on jails that can be used for kick-starting new industries like, say, proper food production – of staples, and sustainable fishing, and including preserving of food products – and proper renewable energy, all of which can create stable, well-paid employment for everyone who needs it. 

So, yes, Bruneau Laurette should have been given bail. And not just him. So should most of the 1,288 pre-trial prisoners. This is particularly important when everyone knows – including the entire intelligentsia – that court cases in Mauritius drag on for years and years. If you are out on bail, it is bad enough, but locked up before your trial, it is truly unacceptable.

And then there is the question of the conditions imposed in exchange for bail. A fair number of those in “pre-trial jail” are in jail not because they did not get bail but because they could not raise the bail money. They are locked up because they are poor, rather than because they are a danger to society. So, bail money should, in practice, be determined by someone’s income. If they have little or no income, they cannot be expected to raise bail.

In Bruneau Laurette’s case, the bail conditions set by the DPP and Magistrate are over-the-top. The magistrate argued that the evidence against the man was “strong, sufficient and reliable” but that the risk of him absconding could be “reduced to a negligible level by the imposition of conditions”. The conditions are draconian. He had to raise two bail sums of one million rupees in actual money. He could. But, how many others could comply with that? He has a night curfew, or house arrest from 8 pm to 5 am. He is not free to go within 500-metres of the sea. He has to carry his cellphone with a GPS with him all the time. He is not allowed to phone abroad. He has to report to the Police Station twice a day. The police can ask him how he spends his time. All these conditions, though better than being locked up, are a very serious precedent for curtailing someone’s freedom that much, even while granting bail.

Conflict between Jugnauth Regime and the DPP

All this shows how the political rift between the Jugnauth regime and the DPP’s office, which had widened while Satyajit Boolell was DPP, has not closed since Rashid Ahmine recently replaced him. The conflict has, on the contrary, become clearer.

When Pravind Jugnauth first on 26 February said, “Mo bien inkye kan mo truv ki manyer sa bann mafia-la, zot ena linflians lor sertenn dimounn dan sertenn lotorite, dan sertenn institision,” we thought he was referring to some in the police force, in particular in ADSU, where transfers were taking place.

But on 5 March, at the big International Women’s Day gathering, Jugnauth made it clearer who he was referring to when he again said “sertin dimunn dan sertin institisyon zot pran bann desizyon ki, okontrer, pe ed sa bann trafikan la.” This is a very serious allegation, and erroneous. To make sure we knew who he was referring to, he added that he thought such decisions to be “pli pir ki evil presedennt”.

So, we are at crisis point, as far as relations between the Prime Minister and the DPP go. Both are part of the executive. Relations, however, are often strained. It was because of the Prosecution Commission Bill that the PMSD resigned from the MSM government in December, 2016. 

It is not only in Mauritius that there is this tension. To prevent such a strain in similar circumstances, for example, President John Kennedy had no compunction in naming his own brother, Robert Kennedy, to the equivalent role. And Trump notoriously forced out AG Jeff Sessions, then Acting AJ Sally Yates then AG Bill Barr when they did not do his bidding.  

Yet, the importance of a DPP independent of the regime in power is vital, especially given the little democracy that capitalism and its bourgeois state afford the people. The DPP is an interface between the executive and the Judiciary, and when the regime tries to impose on it, this is a way of attacking the freedom of the judiciary. 

So, while bail is important for people’s freedom, so is an independent DPP’s office. And beyond both of these, in LALIT we have long noted the trend towards more and more power ending up in the hands of the executive branch, and the whittling away of the already limited powers of the only democratic national institution, the National Assembly. In fact, in the govmu.org site, the National Assembly is hidden somewhere amongst “other institutions”. This means the claim to Mauritius being a “democratic” country is relying upon a less and less powerful institution. The falling status of the National Assembly has been highlighted by the increasingly repressive role of its Speaker. Instead of being the guarantor of the supremacy of the National Assembly relative to the Cabinet, he has become the guarantor of the supremacy of the Cabinet, itself.