Are our institutions failing us?

The case involving the former Attorney General, Yatin Varma, is under police investigation and we shall refrain from going into the minutiae of the case. However, a number of issues, which are of general application to the way certain criminal inquiries are being conducted in Mauritius, and the unsatisfactory nature of such a state of affairs, have to be addressed. Serious consideration ought to be given to them by the holders of two of the most important Constitutional posts in the Republic: the Commissioner of Police and the Director of Public Prosecutions.

Criminal inquiries are conducted by police officers, and it has increasingly become the practice, and indeed an abhorrent state of affairs, for the media to obtain access and to publish the contents of statements given by witnesses in a police inquiry even before the case is advised by the Office of the Director of Public Prosecutions and before it eventually reaches a court of law.

We do not have any direct statutory provisions in Mauritius’ statute books which restrict the publication of such matters, but one may consider that the Public Officers’ Protection Act (POPA) could be construed to allow the prosecution of any person who refers to the contents of a witness’ statement or the intricate matters pertaining to an on-going police inquiry. It also stands to reason that the provisions of this Act should be evoked in the circumstances. Such matters are part of the “secret instruction” and can and should in all circumstances only be revealed in a court of law when the prosecution is presenting its case.

Under Section 3 of the POPA, it is an offence for any person to hinder or obstruct a public officer in the performance of his duty. We have seen in the Varma case the version of the alleged assaulted victim and those of the latter’s witnesses having been abundantly broadcast in the public domain. There is no evidence that these versions of witness statements would have come out from the witnesses or parties associated to them. One could therefore infer that the information has come out in the public domain from the witness statements to the police. A police officer is clearly a public officer, and one can therefore argue that the police officers involved in the enquiry might have been hindered or obstructed in the performance of their work.

This therefore begs the following questions: (1) Has an offence been committed by those who have published or given a platform to a person to go public with such information? (2) Is there not a prima facie case against any person who has gone public with matters pertaining to the police inquiry in the Varma case? Aren’t all the instances of “investigative journalism” and the various public statements of material witnesses in connection with this case clearly a breach of the above-mentioned provision of the Public Officers’ Protection Act?

Practice before our Courts

The significance of keeping secret the matters, which are under police inquiry, until the evidence unfolds in a court of law, assumes all its importance when we consider how witnesses depose in court. In any given case all witnesses, except for the one actually deposing, cannot remain physically inside the courtroom. Where there are say, 10 witnesses, when the first witness deposes, all the remaining 9 witnesses stay outside the courtroom so that they are unaware of the contents of the testimony of the witness preceding them. Now, with statements gathered in a criminal investigation being aired in the public domain, the deafening silence of the concerned authorities is absolutely astounding, the more so as the public ventilation of these statements will surely prejudice the outcome of the case as the witnesses who corroborate one another may not do so because they actually know the same facts but rather because the facts that they are expected to adduce in Court are already in the public domain and they can anticipate what to state in Court and in their statements.

Abuse of process

Having considered the above, is there not a compelling argument to state that in any case where extensive parts of the police inquiry are in the public domain before trial, and potential prosecution witnesses (who have almost been projected as media heroes) are constantly giving details about a case which may be prosecuted and no attempt has been made by the responsible authorities to arrest this state of affairs, there can be no possible prosecution in the public interest in relation to the case being investigated.

As for those persons who may have gone public, as well as those who might have enticed other persons to go public with material relating to an ongoing police inquiry, one may argue that there ought to be a prosecution under the Public Officers’ Protection Act or that a case of contempt be lodged to ensure that potential prosecution cases are not hampered by evidence being brandished in the public domain by any Tom, Dick and Harry. If any Tom, Dick and Harry can prejudge the merits of a case, we will end up jeopardising the judicial process of the country. It is our firm view that the holders of constitutional posts, as important as the CP and DPP, must act decisively to ensure that mob justice does not carry the day in our Republic.

It would also be interesting to know how come material, which is being investigated by the police, finds its way in the public domain. If there are unwarranted leakages to “sources in the press” by police officers and by lawyers alike, the Commissioner of Police might have to take the required action to stop this state of affairs!

Sub-judice rule

Once a case reaches a court of law, the sub judice rule will apply but in Mauritius, authorities entrusted to bring actions for breach of the sub judice rule have been loathe so far to using their powers. The term sub judice literally means “under judicial consideration”. The sub judice rule is part of the law relating to contempt of court. The rule governs what public statements can be made about on-going legal proceedings before, principally, the courts.

The basis for the sub judice rule is that, in our legal system, it is the role of the courts to deal with legal issues that are before it. The courts’ role should not be usurped by others making public statements about how these issues should be dealt with.

The rule applies where court proceedings are ongoing, and through all stages of appeal until the matter is completed. It may also apply where court proceedings have not yet been started, but are imminent.

The rule is not limited to parties in a case or their lawyers. It applies to the public, statements by public officials and statements made in the Legislature.

The sub judice rule may be breached by public statements that risk prejudging matters or issues that are before the courts. It is the concept of prejudging that is central to the rule.

A breach of the sub judice rule can include, for instance, statements urging the court to reach a particular result in a matter, comments on the strength or weakness of a party’s case or particular issue, or comments on witnesses or evidence in a case.

Has not the time come for institutions to play the role which has been entrusted to them? It is for urgent consideration that, in cases where material evidence for the prosecution has already been aired publicly, the case may not go as far as the courts as it may not be in the public interest to prosecute such cases.

* Published in print edition on 21 June 2013