This week has seen a family dragged into detention and released on the instructions of the DPP. We have also seen the commissioner of police contesting that decision. We got hold of Senior Counsel Antoine Domingue to clear up the confusion between the roles and responsibilities of the DPP and the commissioner of police and shed some light on the so-called war on drugs…

The commissioner of police (CP), according to his representative in court on Monday, left instructions not to take the advice of the Director of Public Prosecutions (DPP) if the latter does not oppose the motion to release Akil Bissessur, his brother and his partner on bail. An evil precedent or the right of the commissioner to do so?

I am of the considered view that the DPP’s considered decision not to object to bail should prevail. The DPP’s decision appears to me to be in line with the provisions of ss3 and 4 of the Bail Act 1999. Bail is the rule and refusal of bail is the exception. In the light of the statutory provisions and of the case law, I am of the view that it is the duty of the DPP to independently assess the CP’s grounds of objection and decide whether they are tenable in the circumstances of each case.

Is that not the role of the magistrate?

No. The Bail Act does not, either expressly or impliedly envisage a situation where a magistrate would have to arbitrate between the CP and the DPP. This is why in such a situation, the better view is that the DPP’s decision should prevail.

It is the bounden duty of the DPP to intervene when the liberty of the individual is at stake. This is what he has done, and this is what he will undoubtedly do whenever a political opponent is arbitrarily apprehended by the CP’s and Jagai’s Special Striking Team.

So the police bound by the decision of the DPP, are they?

The police commissioner is only bound to the extent that the DPP’s decision prevails should there be a divergence of opinion in proceedings before the court. Mingard v CP 1988 MR 57 refers to the DPP’s duty in the following terms: “It is also clear that the Director of Public Prosecutions has not only a direct interest but also a duty to intervene in any matter concerning the liberty of the individual” per Boolell J. But the DPP’s decisions are justiciable on specific grounds relating to his decision-making process.

What if the police commissioner does not agree with the DPP’s decision?

The only thing he can do in that case is apply for a judicial review of the DPP’s decision making process. This is made clear in Mohit v DPP 2006 UKPC 20. More recently, in CP v DPP 2018 SCJ 141, the CP did hire private lawyers to challenge the decision-making process of the DPP not to prosecute in the Betamax case, but without any success. The courts have so far taken a rather dim view of such ill-disguised attempts to interfere with the independent exercise of the DPP’s constitutional and statutory powers and duties.

The DPP had clearly instructed the police not to put anyone in detention before checking with him. Does he have the right to do that?

That seems to me to be well within the DPP’s constitutional remit in the light of the case law bearing upon the relevant constitutional and statutory provisions which govern the liberty of the individual which the DPP is bound to uphold, but with which CP/Jagai/SST and their either pro bono or remunerated legal advisers are not much concerned.

So when the police and the ‘pro bono or remunerated legal advisers’ are not concerned with the DPP’s constitutional remit as you say, what then?

The Mingard case law says that it is the bounden duty of the DPP to intervene when the liberty of the individual is at stake. This is what he has done, and this is what he will undoubtedly do whenever a political opponent is arbitrarily apprehended by the CP’s and Jagai’s Special Striking Team and hauled up before a court of law.

Is the fight on drugs being conducted with an evil eye and an uneven hand? That is the question judging by Franklin, the Vimen Leaks and other cases which have recently come to light, including Jolicoeur, Laurette and Bissessur, where CP/Jagai/SST have been the common denominator!

The Bissessurs and Doomila Moheeputh spent nearly a week in detention in a case that public opinion seems to think is a joke. If the three people are innocent, the police will have succeeded in exacting revenge while waiting for their innocence to be established in court. What can be done to avoid this happening to other political opponents?

Aggrieved parties may serve a statutory notice prior to suit on the tortfeasors and bring a claim in damages against them. On occasion arising, the vicarious lability of the State may also be engaged. The commissioner of police and police officers subordinate to him are not immune from lawsuits. They cannot act with impunity and they are statutorily bound to operate in good faith within the narrow confines of the law.

What if they didn’t?

Well, as elaborated upon in Mingard, “any arbitrary interference with the individual liberty or civic rights of an individual is an offence under section 77 of the Criminal Code which reads as follows –

77.  Abuse of authority by public officer

Where a public functionary, an agent of, or person appointed by the government, orders or commits any arbitrary act, prejudicial either to liberty or to the civic rights of one or more individuals, or to the Constitution of Mauritius, and does not prove that he acted by order of his superior, in matters within the competency of the latter, he shall be condemned to imprisonment or to a fine not exceeding Rs1,000.”

If we look at the global picture of drugs in the country, are we really making a dent in the so-called war on drugs? Every time the prime minister is asked about the alarming situation of drugs in the country, he invokes the amounts seized. Is that an indication of a serious fight against drug dealers?

You yourself own up to an alarming situation. The statistics speak for themselves, but they do not tell the whole story. Judging by the sheer magnitude of the amounts of drugs seized there is, undoubtedly, a serious fight against drug dealers. But is the fight being conducted with an evil eye and an uneven hand? That is the question judging by Franklin, the Vimen Leaks and other cases which have recently come to light, including Jolicoeur, Laurette and Bissessur where CP/Jagai/SST have been the common denominator!