Legal Insights on the “Missié Moustass” Controversy
Qs & As
“If the recordings were unlawfully obtained, they would face significant hurdles to be used as evidence in court”
By LEX
One of the most controversial elements of the recent election in Mauritius was the release of the “Missié Moustass” audio recordings, which were strategically leaked in the days leading up to the vote. These recordings played a significant role in shifting public sentiment and galvanizing the opposition’s supporters. On the other hand, former Minister Nando Bodha, in a recent application to a Judge in Chambers, raised concerns about the “systemic vulnerabilities that facilitated the unlawful interception and dissemination of private communications,” as revealed in the “Missié Moustass” audio recordings. Additionally, Mrs Aruna Bunwaree-Ramsaha this week filed a case for “conspiracy” against former Commissioner of Police Anil Dip and former Minister and Attorney General Maneesh Gobin, who according to her allegedly conspired, as revealed in one of the “Missié Moustass” audio recordings, to have her suspended as Director-General of the Mauritius Ports Authority. However, the legality and ethics surrounding the release of these audio recordings remain a topic of debate. We sought LEX’s legal perspective on the complex issues involved in this matter.
* Former Minister Nando Bodha, in an application to a Judge in Chambers, has raised concerns about the “systemic vulnerabilities that facilitated the unlawful interception and dissemination of private communications” as revealed in the “Missie Moustass” audio recordings. These recordings are, according to Mr Bodha, a “serious breach of the State’s duties and obligations” and a “significant threat to national security, economic stability, and public trust in Mauritius’s telecommunications infrastructure.” How do you respond to that?
When recordings potentially threaten national security, the authorities must take remedial measures. However, determining what words or actions qualify as a threat to national security isn’t always clear-cut and is highly dependent on the circumstances. And then censuring the release of information must also take into account freedom of expression.
* The “Missié Moustass” recordings were widely discussed during the election campaign. From a legal perspective, do you think the release of these recordings was justified?
To all intents and purposes these recordings, irrespective of the impact they may have had on the results of the last elections, were illegal. Illegal recordings cannot be used in a court of law.
* What are the potential legal consequences for individuals or groups who leak tapped telephone conversations, especially when those conversations may have been intercepted without proper authorization?
The interceptions were done without any legal foundation. The law prescribes that an order of the judge must be obtained before any such recording is intercepted and even then there must be clear justification for this. For example, it would be legitimate to obtain a judge’s order to intercept the phone conversations of a suspected drug trafficker.
* Are there any specific laws in Mauritius governing the interception of private communications, such as the tapping of telephone conversations?
Yes, the Information and Technologies Act includes provisions governing the interception of phone communications. Additionally, under the Data Protection Act, it is an offense to access personal data without the person’s consent or without an order from the Data Protection Commissioner.
* Can you explain the legal framework surrounding the admissibility of evidence obtained through tapped telephone conversations in Mauritius?
The case of Bacha (1996) is a key reference for understanding the admissibility of such evidence. In a comprehensive judgment Judge Sik Yuen outlined the procedures for authenticating of the tapped recordings, , including voice identification and verification.
* If the “Missié Moustass” recordings were obtained through unlawful surveillance, would they be automatically deemed inadmissible in court, or are there exceptions where they might still be used as evidence?
The authenticity of the voices on the recording would have to be established. If the recordings were made without legal authorization, their admissibility would be challenged, and their use as evidence would be problematic.
* What legal challenges could arise if these recordings were presented in court?
The legal challenges are as follows: the authenticity of the voices’ authorship may be questioned; the legality of the recordings, if proven genuine, could be contested on the grounds that they were obtained without the consent of the individuals involved or without authorization from a legal authority. Even if the recordings are admitted as evidence, the court must determine whether they are original recordings or merely copies.
* Few, if any, of those whose conversations were tapped have denied the veracity of the content. Instead, some have claimed that the recordings were fabricated using Artificial Intelligence tools. Could this be a strong defense?
If AI manipulation is proven, it could serve as a significant line of defense. Establishing the authenticity of the recordings through complex scientific methods, such as voice comparison, would be a lengthy process involving expert analysis.
* How do you balance the protection of individual privacy rights with the public’s right to know, especially when the intercepted conversations reveal matters of significant public interest, such as political corruption or misconduct?
The general principle is that citizens have the right to be informed about matters of public interest. While using unauthorized recordings to inform the public raises ethical considerations, their admissibility and use in a court of law present more significant legal challenges.
* In the case of the “Missié Moustass” tapes, assuming the recordings were found to be unlawfully obtained, could the courts potentially allow them as evidence based on public interest?
As previously mentioned, if the recordings were unlawfully obtained, they would face significant hurdles to be used as evidence in court. The public interest may play a role, but this would be subject to strict legal scrutiny and the rules of admissibility.
* If the legality of the release of the recordings is questioned, what steps should the authorities take to investigate the matter and hold those responsible accountable?
The authorities have the power to investigate such matters, but it would be a lengthy and complex process requiring advanced technical expertise. Additionally, securing credible witnesses would be crucial, raising the question: Who will step forward, or who will take on the challenge to bell the cat?
* How should courts handle cases where evidence like this is presented in a politically charged environment, such as during an election?
Politics aside, the existing rules of evidence in the country must be adhered to. This entails a lengthy process involving advanced scientific methods and detailed voice comparisons.
* What are the key factors that determine whether evidence from intercepted phone conversations can be admitted in court?
As discussed earlier, the key factors include the authenticity of the recordings, whether they were legally obtained, and whether they meet the requirements for admissibility under the rules of evidence.
* How does the law ensure that the scope of surveillance does not violate fundamental privacy rights?
The court will carefully consider all the circumstances surrounding how the recordings were made before reaching a decision. However, it will remain bound by the country’s rules of evidence throughout the process.
* Is there any ethical consideration that must be taken into account when using illegally obtained audio recordings as part of a political campaigns or media coverage?
In Mauritian politics, ethics often seem to take a backseat.
In the realms of love and war, anything goes. During the last election campaign, the current Prime Minister, Navin Ramgoolam, faced intense vilification. His private life was exposed, and various allegations were levelled against him. Yet, did the media deem this unethical? No. There was an unspoken understanding among them to avoid displeasing the former regime, allowing such tactics to unfold without question.
* At the end of the day, it might be politically more practical not to seek legal redress based on evidence that could be deemed inadmissible in a court of law. The tribunal of public opinion may offer a far more effective platform for condemning political adversaries, as was clearly evident during the last election, wasn’t it?
Public sentiment can often be more influential than legal proceedings in shaping political outcomes, especially when the legal process is lengthy and uncertain. But, certainly, there is no harm in seeking a court ruling for guidance on how such recordings can be used. Legal clarification could help establish clear parameters, ensuring that the use of such evidence is in accordance with the law and protects individual rights.
Mauritius Times ePaper Friday 20 December 2024
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