Why did the police wait all this time?

Rama Sithanen’s arrest

By S. Modeliar

The arrest of Rama Sithanen is quite a disturbing event. It is made even more disturbing by the fact that the police asked that he furnishes bail for his release. The complaint was filed by Rashid Imrith months ago when Rama Sithanen was still a senior minister in the Navin Ramgoolam government. Why did the police wait all this time? Had Rama Sithanen still been a minister, how would the police have acted? The answer can be anybody’s guess.

The law should apply equally to everybody. But there are ways of applying it. What exactly is the basis on which Rama Sithanen was arrested? Some months ago Rashid Imrith, according to Rama Sithanen, indulged in an exercise of demagoguery by claiming that trainees recruited by the Ministry of Finance were being paid exorbitant salaries. Rama Sithanen denied that fact and allegedly called Rashid Imrith to rebut these allegations. The latter insisted that his version was true. A discussion ensued and Rashid Imrith alleges that Rama Sithanen who was the person on the phone became aggressive and vulgar. He felt threatened and therefore filed the complaint with the police.

We would recall that a person like Rashid Imrith who, some years ago, was climbing over the iron railings of the compound of Government House by breaking a police cordon never felt scared to do so and was never prosecuted. Now a few words even if allegedly strong are a source of threat to the same Rashid Imrith. Four months have elapsed and we have not witnessed any harm happening to Rashid Imrith.

Under section 46 of the Information, Communications and Technology Act (ICTA), it is an offence for any person to use an information and communication service, including telecommunication service (i) for the transmission or reception of a message which is grossly offensive, or of an indecent, obscene or menacing character; or (ii) for the purpose of causing annoyance, inconvenience or needless anxiety to any person.

It is for the prosecution to establish that Rama Sithanen was the person talking to Rashid Imrith. The mere identification of the voice of Rama Sithanen by Rashid Imrith will not be enough as he is not an expert at voice detection. The accuracy of technological gadgets used to identify the voice can also be challenged by the defence. What is grossly offensive, indecent, obscene or menacing must be conclusively proved. What our criminal justice system requires is proof beyond reasonable doubt of each and every element of the offence allegedly perpetrated. It often happens in the local context that during the course of a conversation heads grow hot and people call each other names or utter threats in a most unguarded manner. It would seem that according to the police doctrine, such utterances would amount to offences in the Sithanen case.

The arrest of Rama Sithanen goes beyond the threat that the allegedly sensitive creature Rashid Imrith allegedly felt. There are many public services in Mauritius and we communicate with them most of the time through the phone. Now that it is so fashionable to use cellular phones, we may even send messages through SMS. If citizen X is experiencing a major problem with his electricity or water supply and picks up the phone to call the service provider and uses words that appear to the service provider to be an aggressive tone, will citizen X be arrested on a mere complaint?

The way the police has treated the Imrith complaint may be construed to be an indirect restriction on our freedom to converse or communicate freely through a phone or even if in the course of a discussion where the tone of the voice rises and strong words are sometimes used.

during the course of the press conference of the Prime Minister when Rabin Bhujun was questioning the Prime Minister, strong words were used on both sides. Would the police have proceeded to the arrest of the Prime Minister or of Rabin Bhujun if a complaint had been filed? Whatever our views on that exchange of views during that press conference, it was a healthy debate for our democracy and neitherthe Prime Minister nor Rabin Bhujun felt threatened. Rama Sithanen and Rashid Imrith were involved in a conversation on a matter of public interest according to our democratic traditions. Both felt free to speak out their minds though the verbal tone may have gone up.

As far back as in 1989 Judges Robert Ahnee and Vinod Boolell had this to say in the case of Sheriff against the District Magistrate of Port Louis: “Doubtless any person may face substantial restriction in the context of our criminal justice system. But this power must be sparingly used and the Courts must ever be vigilant to check this power. Our law relating to the freedom of the individual and the restriction of liberty should not be interpreted in such a way that arrest and detention become the rule and freedom the exception.”

The two former Judges added that it is only in exceptional cases that the liberty of the subject can be subordinated to the greater need of society requiring the forfeiture of his freedom. What threat did Rama Sithanen pose? Why was his freedom forfeited even for a short time? Why could not the police have contacted him and asked him to attend the police station?

At the end of the day, the Director of Public Prosecutions will have to determine whether there is a prima facie case for Rama Sithanen to answer and send the case to court. If there is a trial, the cross examination of Rashid Imrith will be fun to watch. Will he be afforded police protection if he has to face Rama Sithanen in court?

* Published in print edition on 25 June 2010