Habeas Corpus – The Great Writ

Real democracy cannot be confined to the respect of formal rules and institutions. It is a mindset made up of the internalisation of a number of values and principles not only by politicians but by citizens at large

“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

— The American Constitution – Article 1, Section 9, Clause 2

The object of this article is not to present any legal opinion on the matter under consideration. It has the more modest if more demanding aim of attempting to mobilize public opinion on the issue. It is a layman’s view of what is increasingly perceived as a threat to our democratic credentials and it is only hoped that this will contribute to a non-partisan debate and eventually to a resolution of the matter in the best interest of the country.

The issue of frequent controversial arrests of Mauritian citizens who are subjected to publicly humiliating treatment as the “accused” for some alleged criminal misdemeanour or the other must by now occupy a prominent place among matters of concern for any right thinking individual in the country.

The recent case of Mr Ish Sookun, a young entrepreneur who was running a perfectly legitimate and licensed business and has been “provisionally charged” under no less than the Prevention of Terrorism Act is a telling example.

The fact that public opinion seems to be literally unmoved or even sympathetic to him (rightly or wrongly) sends a worrying signal regarding the credibility of our institutions. Crying wolf all too often may be taking its toll on public opinion with grave consequences for the future.

One sad thing about all this is that the main political parties (except perhaps the MMM) have been largely discredited when it comes to remedying such a situation. The previous government was as complacent as the present one in “tolerating” such incidents in the past.

In all the cases the “accused” party is subject to a “provisional charge” and more often than not made to spend time in custody before being presented to a Magistrate’s Court and eventually released on bail.

One most worrying aspect of this whole saga is the fact that senior legal practitioners have expressed the view that this concept of “provisional charge” in fact has no basis in our legal system. It seems that it has simply evolved as a suitable practice during police enquiry.

Arguably, as long as this practice was confined to “reasonable” application it did not raise any qualms among the public at large. It is indeed what is more and more perceived as an “abusive” use of such a practice that has finally raised so much apprehension among opinion leaders. At the outset it is rather surprising that institutions such as the Bar Council have not yet put this conduct to the test of legal/constitutional validity.

From a strictly political perspective (as opposed to the legal interpretations which are far more complex and obviously beyond our competence) this issue of infringement of the basic freedom of the individual through the application of “provisional charges” can be interpreted as the anti-thesis of the concept of Habeas Corpus – Latin for “you (shall) have the body”.

The first exposition of the principle can be traced as far back as 1215 in the Magna Carta, where it is stated that “No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.”

The writ of Habeas Corpus, as it has eventually been incorporated into the Anglo-Saxon system of justice, is basically “an order by a Court of Law to require a person who detains a prisoner to demonstrate the legal and jurisdictional basis for continuing to hold the prisoner. If there is no legal basis for detention the Court orders the release of the prisoner.” The renowned Constitutionalist Sir William Blackstone described it in his ‘Commentaries on the Laws of England’ as “the glory of English law”.

What is probably even more relevant in our present situation is to point out that in England, from where admittedly our legal traditions originate, the Writ is predominantly used to address detentions before trials and not as an instrument of appeal post-trial. It is a determining characteristic of our democratic way of life that no individual should be deprived of his freedom of movement unless due process has been observed. Any perceived attempt to tamper with such freedom is arguably an attempt against democracy.

It has often been said that real democracy cannot be confined to the respect of formal rules and institutions. It is a mindset made up of the internalization of a number of values and principles not only by politicians but by citizens at large. As T V Smith and E C Lindeman wrote in ‘The Democratic Way of Life’: “Democracy itself is, in truth ‘a state of mind.’ It is a state of mind, first of and towards the majority. It is a state of mind, second, towards and of the minority. It is a state of mind, finally and fundamentally, by and for the individual.”

In fact the nineteenth century political philosopher John Stuart Mill had already warned against the risk of “the tyranny of the majority” in a democracy.

In the light of all the above and considering what has happened in Mauritius in the recent past, one cannot avoid the conclusion that the biggest threat to our “democratic way of life” results primarily from the failure of our governments to give due consideration to this essential principle. In this connection we shall again take the liberty of quoting lengthily from the same authors as above:

“Governing is a pain as well as a privilege. There are people who want the prestige which comes from a conspicuous place but who do not want its pains. To have the governmental symbol used merely for display, however, degrades everybody. Those who accept the right to rule must accept the responsibility which attends the right. Or, to put the matter in general perspective, danger to freedom can flow from weak government as well as from strong government. There are friends of democracy who think the greater danger resides in weakness.”

* Published in print edition on 12 February 2016