13 February 2018

Mauritius: "Let's not forget the whole Kaya episode - this could have led to a similar situation"

interview

Following the public outrage over the photo of David Gaiqui tied naked to a chair in police custody, which was posted on social media last week by his lawyer, Weekly asks Antoine Domingue, former chairman of the Bar Council, on what the law allows and doesn't allow when the police interrogate a suspect.

A suspect chained to his chair, completely naked, everyone, including the legal profession is up in arms. Where is your contribution to this sad chapter in our history?

I sent a note to the newly-elected chairman of the Bar Council on Friday morning with an electronic copy of the photograph which is online, and I said it is important for the council to look into it.

What does the law say?

The law says that you cannot extract a confession from a suspect unless it is voluntary. The law also says you cannot take a statement from him if he is a suspect without telling him that he has the right of silence.

The outrage is not so much about extracting information, as much as it about tying a naked suspect to a chair. What is your take on that?

This is part and parcel of the process to extract information from a hardened criminal. If the police know you are a hardened criminal, that you have a couple of previous convictions, in order to extract a confession, they have to go through the process...

Is that the process?

Yes, that's part of it.

Is that legal?

No of course it is not legal. It is an inhuman treatment. But it has been resorted to in the past. A French woman was subjected to that at the airport recently. I have heard similar stories in the past, this is not the first time.

When I was researching for the book Provisional Charges, strip searching seems to be systematic when it comes to provisional charges. Everyone I have interviewed seems to have gone through it.

Strip searching is one thing, but what we saw on the photo was something different.

But is it really okay for strip searching to be carried out systematically?

That is for the police to tell us; maybe they'll say that it's because they are afraid a suspect may have an object that he may use to harm himself, or harm others. So they have to carry out a search. For that kind of search, you have to look at the standing orders of the police to see what kind of internal rules apply.

What does the law say?

The law does not provide for strip searches.

Do you mean the police are not allowed to systematically strip search suspects?

They need an authority for that. The law does not say anything. Suppose somebody says that they object to being strip searched, then what next? Can the police force them to be subjected to a strip search? If the police ask you to undress, and you refuse, they can't force you. They need a lawful authority to carry out a search. This has not arisen because nobody has objected to it. There has been a case where somebody refused to give a fingerprint when they were suspected of committing a crime. This is set out in the law itself. You may object to it, that's also in the law and then the police will need to get a judicial order. But so far as strip searching is concerned, that's not provided for. This is an intrusion of your privacy. If somebody is in custody, the police have to make sure that you have handed over all your belongings, but strip searching? Keeping somebody naked for so many hours, tied in this way? As if he were a wild animal? No!

But why did they tie him to a chair naked?

Probably because they wanted to extract a confession from him. They had a few undetected cases of larceny and they wanted to weaken him and extract a confession, giving him their own type of usual warning. These are Gestapo-style, third degree methods, torture. Pictures like the one circulating on Facebook, we haven't even seen coming from Guantanamo.

What type of action can we expect from the Human Rights Commission?

What I suggested to the lawyer who took the photo is to authenticate it by signing a certificate on the photograph and handing it over to the Human Rights Commission for an enquiry.

Well, what has the Human Rights Commission done about Arvind Hurreechurn, who supposedly hanged himself with a towel hanging from a sink in 2016?

I don't know. You will have to ask the commission. We will have to read the medical report from the chief medical officer, and then the director of public prosecutions (DPP) and the coroner's report. I cannot comment on it because I don't have the file. In the David Gaiqui case, they will have to get testimony from Gaiqui and then go and look for the chain of evidence and the exhibits. And they will have to find out whether there is any video footage of the fellow being brought in. In other countries, they have certain safeguards, such as the video recording of interrogations.

Do we have similar safeguards here?

Yes, in some police stations they do have interrogation rooms with those facilities. They also protect police officers from allegations. It's a good safeguard for the suspect as well as the police.

Why would the police want to protect themselves if there is impunity?

I don't think there is impunity, because beating a suspect is a criminal offence, and tying a suspect naked for so long is torture. If you do that even to an animal, you are likely to be prosecuted. If that is indeed what happened, and it looks like that, action will be taken.

By who?

Those who have to take disciplinary action are the commissioner, the responsible officer and the Disciplinary Forces Service Commission. And this was what was being done when Bhardwaz Juggernauth was the commissioner of police; there was a cartload of five or six police officers being sent the commission per week. The question these days is who will conduct the enquiry: the police or someone else and what will come out of it?

Is it normal for the police to carry out the enquiry on itself?

It is permissible. It depends on who the officer carrying out the enquiry is. There is nothing absolutely wrong with it, but the reaction of the police through the inspector in charge of the Central Criminal Investigation Division (CCID) of Curepipe, has been that it was part of the strip-search process. It's rather thin ice and a lean excuse.

Why?

You don't strip search someone on a chair with hands tied behind his back, especially not when he has been kept there for a number of hours. This is number one. Number two, there was a heated debate on the radio and the representative of the Police Union seemed to be defending his colleagues no matter what. What he said was unproductive. The police has been caught with its hand in the till. We know it's not the whole police force, but there are certain officers who still carry on with it at their own risk and peril. They are not acting according to their duties and fall foul of the law. They have to be dealt with disciplinarily and be prosecuted and brought to justice.

Shouldn't they have been suspended by now?

If a proper enquiry was carried out as it was in the days of Juggernauth, they would have already been suspended, arrested and under charge.

Are you telling me that now we have fewer rights?

We have more rights, but we don't have the same commissioner of police.

Are you saying the current police commissioner should resign?

Not necessarily but he has to wake up. Look at how it was done before and go back to his books. Is he not the one responsible under the constitution for the police force?

His latest comment was that there is one commissioner and he decides.

Who has challenged this rule? This is embedded in the constitution because we wanted to insulate public officers from the politicians. This is why he has the power and it's a constitutional body. The same applies to the DPP. No one is arguing to the contrary, but if you are the one in charge, you have to show it and not just act as if politicians are pulling your strings and that you are willing to be led and misled. Being the responsible officer, he is bound to have the matter investigated, take disciplinary action, including an order of interdiction after consulting with the solicitor general and the Disciplined Forces Service Commission and having seen that a fair and impartial enquiry is undertaken. Otherwise, there will be consequences.

What of the prime minister's reaction?

From what I am told, he said that he would not take any action so long as the photo has not been authenticated. In any case, this is a waste of time. Just call the fellow, get the photo authenticated and let the wheels of justice start turning. That can be easily done.

Some lawyers are calling for the establishment of an independent authority to investigate police misdeeds. Is that necessary?

Of course it is. If you have a complaint against a police officer, you don't want your complaint to be investigated by another police officer. So, in the present circumstances, I would urge the police to appoint an independent police officer who is impartial and has a track record. The law being what it is, it should be entrusted to a police officer and be undertaken by the Human Rights Commission as well, so that we see more clearly and a fact-finding exercise takes place, with further action and maybe arrests and prosecution. Then you take any action and do as your predecessor Juggernauth used to do. That was when the police force was being led from the front and not the rear. Now, we have people leading from the rear.

Do you think this whole polemic that this photo has raised is justified?

Yes. Let's not forget the whole Kaya episode; this could have led to a similar situation.

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