YATIN VARMA

Sections 1 and 5 of the Constitution guarantee the right to personal liberty, precluding any automatic denial of bail even when the suspect is charged with the most serious offences. Paradoxically, Magistrates show reluctance to grant bail in complex cases especially when the police enquiry is at an embryonic stage. Therefore, as investigations are becoming more intricate, it is crucial to have modern methods of monitoring detainees at pre-trial stage to ensure compliance with the provisions of our Constitution. The introduction of an electronic monitoring mechanism is crucial. The legal profession and the judiciary will undoubtedly concur that our bail system needs to evolve.

Thirteen years ago, in the judgment of Islam v Senior District Magistrate Grand Port District Court (2006 SCJ 282), Judges A. Caunhye and S.B. Domah, inter alia, observed “A modern bail law in a society becoming more and more complex and impersonal, demands modern methods of monitoring (…). Each country has developed its own home-grown system proper to its demography, land mass and other socio-geographical factors. For example, a good many countries as early as the eighties adopted the electronic tagging system. A device is placed on the person which sends a signal to a transmitter in the offender’s home and relays it to central control”. The learned Judges further stated: “In Mauritius, the monitoring mechanism in bail administration has remained old fashioned. Our primitive tools and techniques are today the greatest obstacles to the promises of our law and to an enhanced promotion of the enshrined guarantees of our Constitution. The ill served detainee may be paying for the shortcomings of our present system by his inevitable detention and the citizen by a compromise of his other human rights”.

The Law Reform Commission, in its annual report for the year 2009 and in its report on “Bail and other related issues”, made echo of the above and recommended the introduction of electronic monitoring devices which will supervise the location of a detainee who has been granted bail as one of the conditions for his release.

In the light of the above observations, the Government Programme 2010- 2015 mentioned that a new Bail Act will be introduced and that Courts will be able to impose a curfew mechanism on detainees and order them to wear electronic bracelets. Consequently, the Bail Act was amended in 2011 bringing about fundamental and long awaited changes. Besides, the Week End Court was administratively set up. Section 7 of the Bail Act was also amended to include a new subsection 4, which reads as follows: “A court may at the request of the prosecutor order a defendant or detainee, to comply with a requirement imposed for the purpose of security the electronic monitoring of his compliance with any other requirement imposed on him as a condition of bail”. The Bail (Amendment) Act 34 of 2011 came into operation on 01 January 2012 but section7(4) was not proclaimed as a new structure had to be put in place beforehand. A budget was provided for the purchase of electronic bracelets and monitoring equipment and for the training of police officers. There was a change of Government in 2014. Unfortunately, the new administration shelved the project for reasons best known to itself and the electronic bracelets were forgotten.

The Supreme Court, luckily, continued to press for changes in the administration of our bail system. In the case of The State v Fernandez-Grimerez & Anor (2016 SCJ 32) O.B.Madhub Judge held « I cannot but echo anew the qualms already raised by our Supreme Court as far back as 2006, in the case of Islam v the Senior District Magistrate, Grand Port District Court as regards our present system of bail administration ». The Learned Judges had the following to say, “We have hardly moved from the beginnings of a bail system we imported. Our conventional system of bail administration is showing serious cracks unable to meet the new challenges of the age, the legitimate aspiration of a proper criminal justice system and the human rights standards inherent and developed by our constitutional system”. The learned Judge further stated: “Without any doubt, if there were other modern methods of monitoring the movements of an accused like electronic tagging, this could very well have played in favour of the applicant”. Again, O.B. Madhub Judge observed in Emamally v The State (2016 SCJ 33) “I cannot but echo anew the serious concerns raised by this Court in the case of Islam. I make no excuse in reproducing a couple of the paragraphs of this judgment, in the hope that they might catch the eyes and ears of those most concerned (…). Regrettably, ten years later nothing has changed. I have to add, however, should it have been possible to have some kind of electronic surveillance system like electronic tagging, this would no doubt have weighed in favour of the applicant being released on bail”.

      The Government cannot simply turn a deaf ear to the repeated observations of the Supreme Court. Section 7(4) of the Bail Act should be proclaimed forthwith. The electronic bracelets should be brought from oblivion to put our law in tune with modern times and in line with the right to liberty. This will strike a proper balance, in accordance with our Constitution and human rights principles, between the right to liberty of an individual and the protection of society. Accordingly, with all the assurances of a citizen who is deemed innocent until proved guilty, the new devised system has to treat its citizen released on bail in such a way that he is not released as a danger to the public. Party politics should be put aside and there should be consensus in an area where the delicate equilibrium between law and order and right to liberty requires a careful balancing exercise.