LALIT Comments on the

National Human Rights Commission

When the National Human Rights Commission was set up by the National Assembly, Paul Bérenger, then in the Opposition, criticized the law, saying a Supreme Court Judge would not have the right “mind-set” to be Chairman of the Commission. That has certainly turned out true. However, after two years facing the cruel realities his new job exposes him to, Judge Seetulsing in his recently released second Annual Report has come up with a list of interesting proposals – even if his argumentation often betrays that his “mind-set” has not changed.

Judge’s mind-set

The pattern emerging from Chairman Seetulsing’s work shows a mind-set that is indeed not ideal for a human rights tribunal. He is trapped in the role of protecting the police officers (as accused parties) and of assuring the respect for their right to being assumed innocent until proven guilty. He is also trapped in the role of protecting police officers as upholders of the State, which he, too, is busy upholding. Even in his commentary on new repressive laws, his over-riding “mind-set” is one of accepting the laws as given. Judges, after all, only “interpret” laws. Ex-Justice Seetulsing even reassures the public that the new laws have not yet been used repressively.

All this means that he tends to see the human rights complainant as someone coming to rock the happy Mauritian State boat.

He appears to expect proof beyond all reasonable doubt to be produced by a helpless individual victim of violence that has been perpetrated by officers of the all-powerful State, before the NHRC even looks for a prima facie case against a police officer.

Two cases of Witnesses not believed

We would like to start by looking at two particular cases of police violence that became well known to many people and also to the National Human Rights Commission.

On 8th December, 2001, an audience of 50 people present at the “Conference on Human Rights Violations by Police Officers” at the University of Mauritius, listened in silence to the honest, painfully recalled, accounts of two separate cases of police violence as told by the men who suffered the violence. Both the men gave accounts of what happened to them with a rare precision. No one present doubted their word.

Let us see how Chairman Seetulsing dealt with their complaints.

Mr. Jerry Cadine, witness to a stolen goods racket, beaten up

First there is Jerry Cadine, beaten up by the police in Curepipe. He originally went to the Police Station in order to give evidence, on behalf of his employer and together with his employer, after he saw goods he recognized as stolen from the work site where he is a stolid, long-service worker.

Why should the police officers in Curepipe subject Mr. Jerry Cadine, a witness to receiving stolen goods, to torture? (Why does anyone subject anyone else to torture?) Is it, in this case because the police officers give “protection” to the racketeers who “receive stolen goods”? Do some policemen receive a cut? Do they want to make an example of what happens to people who denounce “their” racketeers? Most probably. This is a very normal, if unacceptable, practice in many societies; it is this link between criminal networks and the State that is the material basis of what is referred to as a “mafia”.

The fact remains that Mr. Jerry Cadine’s testimony, as he gave it that day at the Conference in front of 50 people, has the unmistakable ring of the truth to it.

However, Chairman Seetulsing’s findings are in every way strange.

First the findings are not read out at a hearing. Nor are they even so much as signed by Mr. Seetulsing. They arrive by post in a letter signed by his secretary, Miss Kong Win Chang.

The letter reads:  “Dear Sir, Please refer to the complaint made by you on 23 May 2001 (sic) to the National Human Rights Commission to the effect that you were beaten up by the police on 23rd and 27th May 2001 at the Curepipe CID. I am directed by the NHRC to inform you that it has completed its enquiry in your case. After examining all the evidence produced, the Commission has not retained your version that you were beaten up as alleged and has not recommended any further action.

What did the Police Officers come and say in their defense that made Chairman Seetulsing disbelieve Jerry Cadine, a victim of police violence? When Jerry Cadine asked what they said during the course of hearings, Chairman Seetulsing replied that it is a secret. When Jerry Cadine asks if he can check what the NHRC records say that he himself said, in case there are mistakes in the notes that Chairman Seetulsing is relying on, he is told that these too are to be withheld from him. They are also a secret from him. When Jerry Cadine asks if he can confront the Police Officers, he is told that that is not possible.

Unlike the human rights violation victim, the Police Officers must obviously have access to what Jerry Cadine said about them.

Then they could prepare their answers or cover-up.

What this means is that the whole State apparatus can get together, concoct whatever it likes, and hide behind a cloak of the Commission’s secrecy.

In Chairman Seetulsing’s letter (because we must assume the letter emanates from him and not from a secretary), there is a gross mistake on a material date. Is it possible that the NHRC has confused his case with another case of the same date? How could Mr. Cadine have reported a beating up to the NHRC on 23rd May when even the NHRC itself says it only happened on 27th May? 

So, after receiving this scruffy little letter, what happens next?

Jerry Cadine is now no longer a mere witness in the original case of theft. The Police have decided to exact revenge. He has now been charged with involvement in the original theft that he was witness to. That is where things stand today.

What kind of Human Rights Commission can have this criminal effect?

 

Jean Claude Speville (a case of mistaken identity?) beaten up

Second there is Jean Claude Speville. Every word he said at the Conference rang true. He was very badly injured, narrowly escaped death. The police eventually took him to hospital and he remained hospitalized for days. Mr. Speville has not been charged with anything at all. He was obviously mistaken for someone else in the first place. Not that this means the other person should have been beaten up either.

And when Mr. Speville spoke at the Conference, just as when Jerry Cadine spoke, there were 50 people, the equivalent of an immense jury, present. He, too, was a highly credible witness.

The NHRC denied him, too, access to his own records. He too was denied access to what the State officers had said in their defense. He too was not allowed to confront the officers concerned.

He had the additional humiliation, which he described graphically of being beaten up in front of his young child. He told of the psychological trauma the child was still suffering.

The Seetulsing Judgement in Mr. Speville’s case is also in the form of a letter signed by the same secretary:  “Dear Sir, Please refer to your complaint dated 27 July 2002 to the effect that you were assaulted by officers of CID Curepipe at their office and in an unknown place on 07 May 2001. I am directed by the NHRC to inform you that it has completed its enquiry into your case and in the light of evidence produced, the Commission has not retained your version.

“However, the Commission has recommended that (i) a reprimand be given to the officer/s responsible for flouting an order of the court to take you to the Complaints Investigation Bureau to enable you to lodge a complaint and to arrange for you to be medically examined on 08 May 2001; (ii) the provision of /Section 27 of the District and Intermediate Courts Act for an arrested person to be taken before the Magistrate as soon as possible must be strictly complied with.

This amazing “judgement” thus does not “retain” Mr. Speville’s “version” of having been beaten up, even while the police refused a court order to get Mr. Speville examined by a doctor, and obviously failed to bring the arrested man before a magistrate in accordance with the law.

Both these cases show a mind-set that is rather alarming for a human rights tribunal chairman.

Mrs. Martine Desmarais believed, but DPP takes no action

In a case where a victim of police violence was believed, the case of Mrs. Martine Desmarais, who was also present, and gave credible evidence, at the 2001 Human Rights Conference, she has, however, not seen justice yet. Her case, though referred to the DPP over a year ago, has still not led to the prosecution of the police officers incriminated.

Second Annual Report of NHRC

In his Second Annual Report, Mr. Seetulsing includes some strange howling non-sequiturs that show a mind-set that is truly even an apology for police brutality. At page 7, he says:  “The major part of the work of the NHRC during 2002 related to allegations of brutality by the police.” This is a fact. To what does Mr. Seetulsing attribute this fact? He says, “This is due to Mauritian citizens becoming more aware of their rights. They are less tolerant of and more prone to complain of ill-treatment by the police.

But surely the high number of complaints is even more directly related to the fact that so many people have actually been beaten up by the police? That these are not just “allegations”. Since Mr. Seetulsing implies that people always did get ill-treatment in the past (and still do), but that only now are they “more aware of their rights”, “less tolerant of and more prone to complain of ill treatment”, we can only assume that there is a great deal of police violence. It is a pity he does not say so instead of trying to mask it.

Suggestion No. 1 of the Justice Seetulsing: No more brutality

Mr. Seetulsing concedes later in his Report that there is police violence and implies that there should no longer be. This is certainly a good, if obvious, idea. But listen to how he puts it at page 8: “Some policemen find it hard to shed their tendency to use force to elucidate a crime instead of using less muscular (sic) and more scientific methods of investigation.” He sees these human rights infringements (illegal acts) as a “tendency to use force”, as “muscular” methods. Does he mean giving “wounds and blows”, and that this is part of police routine to infringe the Criminal Code? He also implies that in the past this was tolerated (by everyone?) and that now “some policemen” are finding it hard to “shed” this tendency, as though it is an old jacket hanging innocently on the backs of generations of officers of the State.

At page 20, he even refers to what can only be some form of physical or other abuse by the police as “excessive zeal”. This expression is one of those curious phrases used by those who attempt to justify police brutality. Considering that zeal means “Intense ardour in the pursuit of some end; passionate eagerness in favour of a person or cause; enthusiasm as displayed in action” (Oxford English Dictionary), the phrase contains admiration in its very formulation. “Excessive zeal continued to characterize certain members of the police force in carrying out routine checks of members of the public.” Would members of the Commission enjoy being on the receiving end of this “excessive zeal”, themselves, for example? Does the phrase refer to wounds and blows? Or to torture?

When referring to “habitual criminals” the language of the Report again betrays a certain collusion with police violence and even torture, saying that questioning “tends to be a bit rough and physical.” What exactly is this “rough and physical” questioning? Fortunately, Mr. Seetulsing does go on, formally to denounce this. At page 22, he says: “The police tend to round up habitual criminals if they have been present at, or if they have a connection with, a place where an offence has been committed. In such circumstances the questioning tends to be a bit rough and physical.” This kind of statement from the President of the NHRC is shocking. Although, he does go on to say, “Nothing justifies the use of violence even if the police is dealing with a bad character.”

Suggestion No. 2 of Justice Seetulsing: Police must respect Children’s Rights

At page 24, in relation to the rights of children in the hands of the Police, Mr. Seetulsing again uses the word “zeal”, and refers to the police officers’ “determination”: “We explained to the police officers in each case that we understand their determination and zeal in detecting crimes and misdemeanours, but at the same time the rules for taking statements from minors had to be respected and extra care had to be exercised in enquiries involving minors.

“In the first case, the rule that the police cannot take along a child in the absence of the parents or without the parents’ consent was breached. The interests of the child have to be protected at all costs and at all times. In the second case, it was not proper for the police to record a statement from a child when the father objected to same…Obviously, to compel a child to give a statement against his father was not in the best interests of the child.

Suggestion No. 3 of Justice Seetulsing: He will compile database on Police Officers present at relevant times

Following the formal written suggestion of Lalit to the Human Rights Commission, Justice Seetulsing in his Report has taken up the idea, and agrees that a database be compiled on police officers accused of violence. At page 18 he says: “Many of the complaints before the NHRC were resolved by way of conciliation where the aggrieved parties were prepared to accept the regrets expressed by the police officers involved. Nevertheless, the Commission is compiling a database of such policemen. This will enable the NHRC to closely monitor the behavior of policemen against whom frequent complaints are made. The Commission has taken special note of police stations from which numerous complaints emanate.” We should mention that in Lalit, we strongly criticize this practice of “reconciliation” (referred to in the quotation) for infringements of the Criminal Code, for example, for torture or wounds and blows that pre-empts charges being laid.

Suggestion No. 4 of Justice Seetulsing: Sick or hurt suspect must be medically examined 

At page 17, the Report again has a fine suggestion: “We recommend that the Commissioner of Police should … consider the advisability of amending the Standing Orders to make it compulsory that a suspect who is ill or who has been the victim of an accident is medically examined before he is interrogated.” Once again, Mr. Seetulsing’s reasoning for this is hardly a human rights one: “Otherwise this may open the door to allegations of police brutality,” he says. Once again he is more concerned about the reputation of a police officer of the State than about the human rights infringement of the individual victim.

Suggestion No. 5 of Justice Seetulsing: Parole for poor remand prisoners

We agree with the Report’s suggestions at page 29 that all those accused of minor offenses be released on parole. This respects the human right to the presumption of innocence. The Report reads: “A number of detainees are being kept on remand for long periods of time pending trial because they cannot afford the expenses involved to be released on bail. Depending on the nature and gravity of the offence, this may well prove to be an unjustifiable restriction on the right to personal liberty e.g. where the punishment on conviction is likely to be a fine, probation or even a very short sentence.

“It is suggested that in the latter case persons arrested of minor offences (even if they are not first offenders) who cannot afford to provide sureties should be released on parole with an undertaking to report to the Police on a regular basis, the frequency of which is to be decided by the Court after hearing the Police Prosecutor

Suggestion No. 6 of Justice Seetulsing: Release detainees after 12 months if no trial, unless murder or serious drugs offence

We in Lalit are also concerned about the numbers of people who rot in prison while the judiciary postpones cases interminably. We thus agree that human rights cannot continue to be infringed this way. What Mr. Seetulsing proposes, or what the Mackay Report suggests would both help remedy the abuse. The Report reads: “It has been noted that one third of the prisons population consists of detainees who are on remand. As at 1st July 2002 some 939 male detainees and 42 female detainees were awaiting trial (45 of them for a period of more than 18 months as at 26th June 2002). Obviously this puts undue pressure on prisons administration with consequent overcrowding etc.” (Again the reasoning of Mr. Seetulsing is not a human rights perspective, but the problems of the officers of the State!) “To reduce delays in bringing cases to trial, the Mackay Report, at pages 16 and 95 goes to the extent of recommending that an accused party should not be prosecuted if certain time limits are not respected. We would not go that far but we suggest 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.

Suggestion No. 7 of Justice Seetulsing: That the law be respected regarding bringing arrested person before Magistrate

The Report also, at page 22, criticizes the police implicitly for disrespect of the law about bringing an arrested person before a Magistrate. It reads: “The police were reminded that the provision of Section 27 of the District and Intermediate Courts Act (Criminal Jurisdiction), to the effect that a person who is arrested must be taken before a Magistrate as soon as possible, must be strictly complied with.

Perhaps Justice Seetulsing could have done a bit of research to establish what proportion of people gets arrested on FRIDAYS, compared with other days.

Suggestion No. 8 of Justice Seetulsing: That the NHRC initiate certain complaints even when there is a case against a person

From very early on the NHRC for some reason decided that human rights complaints could not be heard until the end of the police case against someone. This rather amazing procedure has, of course, led to the police putting charges against people they would otherwise not have bothered to charge, and keeping them on. Mr. Seetulsing however, retreats somewhat from this practice, even if only in restrictive case. At page 13, he says “the NHRC may still initiate an enquiry for the purpose of preserving evidence which otherwise may disappear with the passage of time (e.g. marks of bodily injury).”

Suggestion Number 9 of Justice Seetulsing: That the police stop arresting people for non-arrestable offenses

In Lalit, we have often complained that the police use class and political discrimination so as to arrest people for non-arrestable offenses. The Report has called for a stop to this. At p. 31, “The exact meaning of an arrestable offence also 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 unnecessarily detained in police cells.

Suggestion no. 10 from Justice Seetulsing: Police should not judge police 

The Report is concerned that, after the NHRC has dealt with cases against police officers, that it ends up, once again, being police officers who judge police officers. At page 32, Mr. Seetulsing says: “The final outcome of cases, after enquiry and report by the Commission, gives rise to concern. In particular the fact that the Disciplined Forces Services 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 out of a complaint to the Commission, ultimately it will be the police judging the police.

Then he quotes his letter to the Secretary for Home Affairs, now, he ways, under study at level of DFSC, PMO and Police Dept. It makes interesting reading. It includes a suggestion that the NHRC take on a formal adversarial procedure to enable a non-police officer to inquire into the police. He says that at present whether the DFSC or DPP, it is “police officers who once more have to enquire into a complaint made by a member of the public against a fellow police officer, a most unsatisfactory situation.”

Suggestion Number 11 of JUSTICE Seetulsing: Police officers must stop taking sides with other police officers

In Lalit, we have noticed the pathological tendency of police officers to “protect” other police officers, and have protested against it. At page 19, Mr. Seetulsing says: “The tendency of the police to immediately side with a colleague when the latter is involved in a controversy continues to prevail.” And, referring to one case says: “The Commission disapproves of the laxity and partiality shown by the Curepipe Police Station staff” and “that all possible measures must be taken to ensure than in cases involving members of the Force and the public, strict impartiality must be observed and seen to be observed by the parties.

Conclusion                         

The proposals made by Justice Seetulsing are thus, when all added together, substantial and positive. And this despite the fact that his argumentation, as we have seen, is often rather far removed from the concept of protecting people from human rights abuses by officers of the State.

Lindsey Collen

for LALIT, 17th July, 2003