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Friday, 10 February 2012 15:05

Raouf Gulbul : ‘Arrest first and enquire afterwards is not consonant with the principles of Human Rights and Justice’

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Raouf Gulbul is one of our most prominent barristers who has fought and won many cases where Human Rights was the main issue. In view of the presentation of the Police and Criminal Evidence Bill, he makes a review of the situation and proposes what is to be done to prevent unnecessary hardships to our citizens.
We have witnessed a number of cases where Police arrest an individual following an allegation made against him, rather than upon suspicion after serious investigation. Is it not a breach of Human Rights?
The Police in Mauritius are too quick to arrest someone on the basis of allegations. The moment someone gets in a police station and levels an allegation against someone else, the current practice of the police at the moment is to proceed directly to the arrest of the person accused. This is absolutely wrong as experience has shown that there have been many cases of false allegations against either a neighbour, a member of the family with whom one is not on good terms, or against someone with whom one has to settle a score.

One can imagine the prejudice that has been caused to an innocent person who has been arrested, kept a few days in custody, then released on bail and ultimately told that there was no case against him; sometimes two years after the event that Police realise that it is a false allegation. What is required in a country that respects the liberty of the citizen is that whenever an allegation is made, the police should enquire deeply and fully into the allegation. The present rule- arrest first and enquire afterwards is not consonant with principles of Human Rights and Justice. The principle should be enquiry all around and only after having gathered serious evidence to back up the allegation, the police should proceed for arrest.

Stop, enter and search is very often operated without a warrant in hand. Do investigators have the right to do so?
We live in a country where Rights are enshrined in the Constitution. There are fundamental rights against arbitrary arrests and wrongful deprivation of liberty. The police should act according to the Constitution, more particularly the Chapter 2 of the Constitution -“The Fundamental Rights and Freedom of the Individual- All citizens of this country are guaranteed by Section 3 of our Constitution and the protection of the Law.”

The Police can only arrest someone on reasonable suspicion that the person may have committed an arrestable offence. The power to arrest is not dependent on the whims and caprices of the officer. Likewise the decision to search the premises and property of an individual in Mauritius does not depend on the mood of the police officer. The Law of this country commands that the police needs a search warrant duly signed by a magistrate to search the premises of an individual and the law also says that “in case of arbitrary arrest, the Police can be subject to prosecution.”

Many centuries ago, Blackstone, a famous lawyer is his “Treaties on the Laws of England” wrote ‘It is better to have ten guilty men walking free in the streets that to have one innocent man in jail.’ The importance of this observation is highly relevant today in Mauritius. If we can only imagine the trauma and the threat an innocent man goes through while being incarcerated on the basis of a false allegation! Despair may lead to unforeseen and unpredictable actions by the victim of a wrongful arrest.

The Attorney General will soon present the “The Police and Criminal Evidence Bill”. What would you advise him?
It should be the rule of Law which should be strictly adhered to by police officers- that they shall not arrest a person on the basis of a mere allegation unless they have independent and credible evidence to back up these allegations. We have seen untold miseries of victims of false allegations.

It is now urgent to legislate that mere allegations are not sufficient to proceed to the arrest of an individual. It is very pertinent that I remind everybody that Sir Gaetan Duval was a victim of false allegations, which three years after the event were proved to be allegations based on lies and made with the desire and purpose to cause harm. Other notorious cases are: the ‘Sheikh Hossen Affair’; false allegations made during the Rault Commission on Drugs; the three-year incarceration of Cehl Meeah following the spiteful allegations made against him by his opponents. Imagine how many common citizens must have gone through such an ordeal!

The Police and Criminal Evidence Bill
The main objects of this Bill are:

  • to bring together in one enactment, subject to certain exceptions, the provisions which relate to the exercise, by the police and other investigating or enforcement officers, of the powers to stop, enter, search and seize, arrest and detain and to the treatment and questioning of detainees.
  • to improve the statutory regulation of provisional information and spent convictions
  • require a party to disclose his case to the Court and to the other parties in a criminal case; and
  • set out in one enactment the main provisions relating to evidence in criminal proceedings.
  • The Bill sets out the provisions referred to the above so as to better guarantee the citizen’s constitutional rights to liberty, protection of property, freedom of movement and protection of the law. The Bill accordingly limits the power of a person to make an arrest.



Indradev Curpen

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