Today 27 May 2008, LALIT submitted a document on the admissibility of confessions to the Law Reform Commission, a Government set-up independent commission whose job it is to propose ongoing reforms to laws and to legal practice.
The Commission had announced that it was working on the question of "confessions", so, as LALIT has been involved, over the years, in a great deal of political work against the torture of detainees as well as learning from survivors, the party is in a good position to judge which amendments to the existing laws might minimize torture by the police on detainees.
At a time when the Government of the United States of America is under severe attack for its treatment of prisoners held incommunicado and for practicing torture, it is important that, at the same time, we struggle to end torture everywhere else on earth as well. In Mauritius, the question of illegal US prisoners being held on Diego Garcia in secret, and having been tortured there, when it is Mauritian territory has been in the news consistently over the past three years. LALIT had notified the Red Cross of these "secret prisoners" in 2004, and the Red Cross had made unsuccessful attempts to visit Diego Garcia.
Below is the full text of the LALIT submission:
A LALIT SUBMISSION
ADMISSIBILITY OF CONFESSIONS
LALIT has gradually, over the past 30 years, documented the systematic torture that gets inflicted by police officers, particularly by some CID officers, on detainees in their custody.
The physical torture takes various forms: beating on soles of feet; beating both ears at the same time with telephone directories; electric shocks, especially to genitals; water-boarding i.e. head being held under water in a bucket until this produces a sensation of drowning; being "cagooled" and beaten up from all sides; being hand-cuffed in unbearably uncomfortable positions; having red ants put on one (referred to in a Magistrate's judgment); having rats or mole-snakes introduced into one's trousers. Psychological torture also takes various forms: threats of death; threats of arresting family members; being held incommunicado; being moved from one police station to another, from one non-police station to a another non-police station; being sworn at. Many of these forms of torture even have names by which police officers refer to them. Others involve Macchiavellic preparations, like the designing, buying cloth for and sewing of the hoods used, or the catching and feeding and having at hand the rats that are used, or the batteries and electric wiring for the shocks.
The people who are tortured vary from: suspects to witnesses, to many detainees who it seems unclear whether they are suspects or witnesses. From the point of view of professions, those tortured are labourers and teachers, doctors and factory workers, journalists and building hands, municipality workers and lawyers, political leaders and rich businessmen. But by far the majority of the people beaten up, as everyone knows, are those who live in the margins of society: the homeless, the out-of-work, drug addicts and alcoholics, small-time thieves. In short, the voiceless suffer the most.
As well as documenting cases, we have also over the years studied the "rationale" within the police force for this systematic pattern of violence by officers of the State. They say that "this is how crimes are resolved" or "this is how to get a conviction". Once there is a "rationale" within the police force, then the practice becomes accepted practice, no longer even needing a rationale. The torture, though widespread, is clearly illegal, immoral, a violation of human rights, as well as being an infringement by the police of the separation of powers rule. Over 30 men have been killed since Independence, we believe, as a result of torture. LALIT keeps a register of "deaths in detention", which we can produce. Hundreds of men, the survivors, are left with grave psychological scars. Police violence against detainees is, we believe, akin to domestic violence, in many ways. Society has turned a blind eye to it, it is done inside four walls, and there are sexual metaphors to describe both forms of violence. Both are meant to be "for the good of society", correcting the errant. Our laws have already been changed to address the problem of wife-beating. Now, in LALIT, we believe it is time for laws to be amended so as to stop police from using violence against detainees.
Their rationale for the violence is absurd.
And, ironically, the fact that the CID officers are now known to be violent has become one of the principle reasons why people hesitate to come forward as material witnesses to crimes. Since the brutalization of an expert witness, a medical practitioner who established the death of the murdered Vanessa Lagesse, we can expect expert witnesses to begin to shy away from giving evidence. This, in turn, means that the torture is doing the exact opposite from what its rationale claims it does i.e. it is obstructing the resolution of crimes and prevents convictions.
In LALIT, we are suggesting that some changes in laws could help to decrease and finally end torture?
We propose three:
1. We believe that Section 75 of the Criminal Procedure Act needs to be revoked. At present it reads: "Accused admitting charge: Where the accused admits the charge to be true, his confession shall be recorded, and judgment delivered according to law."
A confession made to the Police should not be sufficient evidence for a conviction, and should fall away the minute someone pleads "not guilty". On the contrary, a confession in such cases immediately becomes suspect, because of it being in contradiction with the plea. In the event of a guilty plea, there should, even in this case, still be a trial, instead of directly proceeding to judgement, and the confession should only be admissible as evidence when it is made before the Magistrate or Judge, i.e. under oath.
2. Further, any evidence obtained illegally, including through torture, should be inadmissible (i). The onus should be on the prosecution to prove that any statements obtained from an accused (that lead to the finding of further evidence, for example) were obtained legally. What is the principle behind this demand? Our legal system, after centuries of peoples' struggles against inquisitions that rely on "confessions", is now, as you know, based on the right to silence, of the accused. That is the principle. The main reason for this principle is that it prevents torture. The prosecution thus has to PROVE its case without the help of an accused. As we have mentioned, magistrates and judges should be legally bound to reject any confession until it be made before them, as is the case we believe in India, and, in addition, to place the onus on the prosecution to prove that any confession presented in Court was freely made, as is the case in the USA since the famous Miranda judgment in 1966 that ended "third degree" practices so notorious in the USA until that date.
3. We propose that there be a new provision that makes it unlawful for police to hold someone incommunicado. This practice, as well as in itself being a form of cruel and unusual punishment, also allows the space and time for physical torture to take place. As soon as someone is detained, the onus should be placed on the Police to inform his family that he is under arrest, and to inform them where he is being detained. If a detainee is moved around without his family knowing where he is, then any confession should be assumed to have been obtained unlawfully.
Thank you for taking this into account in the Law Review Commission.
(i) This would give value to the THE CRIMINAL CODE (AMENDMENT) BILL (No. XVI of 2003)
against Torture which at Section 78 reads:
Torture by public official
(1) Subject to subsection (3), any person who intentionally inflicts severe pain or suffering, whether physical or mental, on any other person, by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity -
(a)to obtain a confession or other information from that other person, or a third person;
(b)to punish that other person for an act which that other person or a third person has committed, or is suspected of having committed;
(c)to intimidate or coerce that other or a third person; or
(d)for any reason based on discrimination of any kind,
shall commit the offence of torture and shall, on conviction, be liable to a fine not exceeding 50,000 rupees and to imprisonment for a term not exceeding 5 years.