Bail for the powerful. Jail for the poor?

Qs & As

‘Establishing a body to supervise court decisions would be both dangerous and preposterous, as it would undermine the independence of the judiciary’

By Lex

Bail decisions in Mauritius have long been a subject of public debate, often fuelling perceptions of bias in favour of the wealthy and influential. Critics argue that prominent figures benefit from expedited hearings, while ordinary citizens endure prolonged detention. The recent case of former Prime Minister Pravind Jugnauth’s swift bail approval has reignited discussions on whether the justice system applies double standards.

In this week’s Qs &As, Lex examines whether reforms are necessary to enhance fairness, prevent undue delays, and ensure that the bail system remains just and impartial for all citizens, regardless of their status or wealth.

* There is a widespread belief that affluent and influential individuals are more likely to be granted bail, while those less privileged remain incarcerated. For instance, in the recent case of former Prime Minister Pravind Jugnauth, he was arrested on February 16, 2025, at 2 am, appeared in court by 11 am, and, despite initial objections, was granted bail by 11:45 pm the same day. Does this expedited process indicate a double standard in the justice system compared to the treatment of ordinary citizens?

This is a misconception. Bail applications are well regulated by law. In Mauritius, each time a political figure or a high-ranking individual is arrested, it seems as though they no longer have any rights. The former Prime Minister enjoys the same rights as any other citizen of the country.

One point must be made clear: the Bail Court or Weekend Court was established to expedite the hearing of bail applications. It may seem unusual or surprising that the Magistrate who heard the former Prime Minister’s bail application sat through the night. However, he had his reasons for doing so. He could have postponed the hearing to the next day, which would have meant another night of detention for the former Prime Minister. Perhaps the Magistrate wished to avoid this and not prolong the ordeal of the former Prime Minister.

* The current Bail Act aims to protect the rights of all citizens; however, debates persist regarding whether it inadvertently favours the wealthy and powerful. Would a comprehensive review of past bail decisions reveal inherent biases within the legal system?

All past decisions of the Bail Court or the District Court have comprehensively addressed the issue. Many of these lower court decisions have been subject to appeal, and any shortcomings in the judgments or excessive conditions for a suspect’s release have been duly corrected.

* Could implementing mandated timeframes for bail applications and limiting police discretion in objecting to bail, as seen in reforms like the UK’s Police andCriminal Evidence Act (PACE), enhance fairness and reduce prolonged pretrial detention in Mauritius?

Bail applications are heard shortly after a suspect’s arrest, usually within a few days. If the police object to the application, a hearing takes place with a representative of the DPP appearing on their behalf. The reasons for objection are clearly outlined in the Bail Act and must be supported by strong evidence, as established in numerous appeal cases.

It is true that, at times, hearings may take an unduly long time, and some reforms may be necessary in this regard.

* Given the controversial nature of provisional charges in Mauritius, would their abolition reduce instances of extended pretrial detention? Alternatively, should Mauritius consider adopting a framework similar to the UK’s PACE to replace the current system of provisional charges?

The purpose of a provisional charge is to bring the arrest and detention of a person under judicial supervision and control. It aligns with Section 5 of the Constitution, which safeguards the right to liberty. Any person who is arrested must be brought before a Magistrate without undue delay. If a delay occurs, it must be properly justified before the Magistrate.

In 2013, a Police and Criminal Evidence Bill was introduced in Parliament and went through its first reading. However, the Bill was never debated and ultimately remained a dead letter.

The Bill’s objectives clearly stated: ‘This Bill sets out provisions to better guarantee citizens’ constitutional rights to liberty, protection of property, freedom of movement, and protection under the law. It also provides that no person shall be arrested solely on the basis of an allegation without an inquiry being carried out. This provision aims to prevent arbitrary arrests.’

* What measures can be introduced to ensure that judicial decisions, particularly regarding bail, remain free from political interference?

Despite public perception, there is no interference in bail hearings. Under the previous regime, the police were systematically directed to object to bail for political opponents — an undeniable case of political interference. However, there is no direct or circumstantial evidence of political interference in bail hearings.

What has happened in a few instances is that a magistrate’s decision to release a suspect has been heavily criticized. Similarly, the DPP has faced harsh criticism when choosing not to appeal a bail decision. The DPP also faced heavy criticism when he declined to appeal a decision granting bail to a suspect.

For instance, when Magistrate Jade King granted bail to Bruno Laurette, the former Prime Minister publicly launched a vicious attack against her, even going so far as to allege that she was completely ignorant of the law. While this constituted political interference, it occurred only after the decision had been issued.

* What mechanisms can be established to systematically monitor and evaluate judicial decisions on bail to ensure consistency and fairness?

The necessary mechanisms are already in place. Decisions of the lower courts can be appealed to the Supreme Court, and even Supreme Court rulings can be further appealed to the Privy Council. In a few cases, the Privy Council has provided guidelines on bail applications, including the timeframe within which hearings must be completed.

* Considering the ongoing discussions about enhancing fairness in the legal system, what are your thoughts on establishing an independent body to review disparities in bail decisions, expanding legal aid to assist economically disadvantaged individuals in challenging unjust bail determinations, and implementing a cap on the duration someone can be held without formal charges?

Establishing a body to supervise court decisions would be both dangerous and preposterous, as it would undermine the independence of the judiciary. There are already sufficient safeguards in place to ensure that bail decisions do not result in injustice.

However, a key concern is that indigent suspects may lack the financial means to afford legal representation. To address this imbalance, the Legal Aid Act should be amended. Additionally, some magistrates impose excessive bail conditions, whether in terms of financial requirements or mandatory police reporting. There should be a legal framework to regulate such excessive bail conditions.

Mauritius Times ePaper Friday 28 February 2025