HUMAN RIGHTS COMMITTEE CONTINUES CONSIDERATION OF REPORT OF MAURITIUS

19 March 1996

Press Release
HR/CT/454

HUMAN RIGHTS COMMITTEE CONTINUES CONSIDERATION OF REPORT OF MAURITIUS

19960319 Variable Pre-Trial Detention, Burning of Certain Books, Laws Making Publication of False News Illegal among Issues Discussed

Expert members of the Human Rights Committee this afternoon asked for clarification of various aspects of the third periodic report of Mauritius on its compliance with the International Covenant on Civil and Political Rights, which was introduced by that country's delegation this morning.

Among the issues of concern to the experts were laws which permitted variable lengths of pre-trial detention based on the seriousness of an alleged offence. Concern was also expressed about the outlawing of works of art, including the books The Satanic Verses and The Rape of Sita. Concern was also expressed about making the publication of false news illegal, in view of the difficulty of actually determining the truth or falsity of certain allegations.

Other questions raised on aspects of the report of Mauritius included: Were the police aware of their human rights duties and obligations? What measures was the Government taking to prevent the repetition of violations by the police? Was it true that a constitutional amendment entered into force last year under which suspected drug traffickers might be detained indefinitely?

Responding to some of those questions, a member of the Ministry of Justice of Mauritius reviewed efforts to prevent violations by the police. He said the banning of the books in question had not been a formal banning. "Mere declarations" were made by the former Prime Minister stating that they were being banned. Further, it was not correct that suspected drug traffickers were detained indefinitely on mere suspicion.

As to the 36 hours of pre-trial detention incommunicado in drug- trafficking arrests, he said the reality of drug trafficking had to be considered. As soon as a trafficker was released, he could warn his compatriots. Similarly, lawyers often conferred with their clients and then

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conveyed information to drug dealers on the outside. As for the law on the publication of false news, that arose from cases in which newspapers published falsehoods and then simply closed down, leaving the damaged person without recourse to compensation.

Questions on the report of Mauritius were raised by the experts from India, Cyprus, France, Ecuador, Israel, United States, Chile, Australia, Hungary, Germany, Italy, Japan, Venezuela and the United Kingdom.

The Human Rights Committee will meet again at 10 a.m. tomorrow, 20 March, to continue its consideration of the periodic report of Mauritius.

Committee Work Programme

The Human Rights Committee met this afternoon to resume its consideration of the third periodic report of Mauritius on its compliance with the International Covenant on Civil and Political Rights. The delegation of Mauritius was expected to continue responding to questions raised this morning by expert members of the Committee. (For background on the report of Mauritius, see Press Release HR/CT/453 of 19 March.)

Response of Mauritius on Legal Framework, Discrimination, Minorities

M.D. SEETULSING, of the Ministry of Justice of Mauritius, speaking in response to questions raised at the morning session, said his country was a nation of immigrants. There was no history of oppression of particular groups, as such. However, some form of affirmative action existed, in that employers were required to employ a certain number of disabled people. There was positive discrimination towards the island of Rodrigues, where some people had been disadvantaged in education. In response, the Government had decided to issue special scholarships to address the disadvantage.

He said the recent amendments to the Constitution would make it unconstitutional if equal pay were not given for equal work by men and women. Responding to a question about castes, he said that in India there were historically four castes -- priests, warriors, farmers and manual labourers. "We don't believe in this system in Mauritius." Its introduction in the Constitution in 1968 was an accident and there had never been discrimination in Mauritius on the basis of caste.

On the question of it being an excusable offence for a man to kill his wife if he should catch her in adultery, he said that should be corrected by the amendments that had been made to the Constitution. People should not be excused for killing their spouses in the act of adultery. Also, the Government should decide whether work permits should be granted to foreign males or females.

He said that legal aid was not granted at the stage of appeals to the Privy Council. However, legal aid was granted when cases were tried before the Supreme Court. The law provided that a child would remain with a mother who was in prison up to its fourth year. It was a matter of policy as to whether that period should be reduced. In general, people in the legal fraternity were aware of their option of petitioning the Human Rights Committee. If there were only a few petitions before the Committee, perhaps that was to his country's credit.

Although the inhabitants on one of the islands of Mauritius had not been registered as voters, the new Government would see to it that they were

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registered, he said. Aliens had all the basic rights to fair trial in Mauritius. However, they were not entitled to social security, could not vote and could not take employment in the public service. However, they might be given work permits and a right of residence. The Covenant was not part of Mauritian law, but its principles were embodied in that law and the courts referred to the Covenant for purposes of interpretation.

With regard to elections, he said the new Government would like to give access to international observers. Since 1990, children born as the result of adultery had the right to succession of their parents. It was common for the judge to call for the child to be heard in cases bearing on the child's rights. A report might be requested from an officer as to whether they were receiving the proper care. On the 36 hours detention rule -- the "incommunicado provision" in the "dangerous drugs law" of Mauritius -- he said that did not prevent the person from applying for habeus corpus.

It had been asked whether section 16 of the Constitution would also apply to public sector corporations, he said. That section did not apply to such bodies. However, there was no discrimination in such public sector bodies. Regarding the late submission of the report, he said it was not possible to give priority to that in terms of the diverse responsibilities of the very understaffed office that prepared that report. However, priority was being given to it now, and Mauritius was now up-to-date with all its human rights reports.

Questions from Experts

PRAFULLACHANDRA NATWARLAL BHAGWATI, expert from India, sought further information concerning discrimination.

ANDREAS V. MAVROMMATIS, expert from Cyprus, said he had instead of a question, a suggestion. There should be enabling legislation in respect to the Committee's recommendations. In the current effort in Mauritius to have a more strict compliance with international instruments, the drafting of such enabling legislation should take place in respect of views or decisions on individual complaints.

Mr. SEETULSING (Mauritius) said those comments would be referred to the authorities of his country.

Response of Mauritius on Right to Life, Liberty, Expression and Others

Mr. SEETULSING (Mauritius) then proceeded to reply to written questions on the following: right to life, treatment of prisoners and other detainees, liberty and security of the person, right to a fair trial, freedom of conscience, religion, expression, assembly and association.

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He said there was no army in Mauritius, just a police force. Normally, police and security agents did not carry weapons. They carried weapons only under special circumstances, such as those involving major threats from drug traffickers. There were no cases of police brutality. However, sometimes a policeman could be "overzealous" in the way he would treat a detainee, but that was taken care of under other regulations. He cited two cases of police brutality that were under investigation.

He said prisoners were treated as humanely as possible in prisons and there was no hard labour. Rather, prisoners were given instruction in skilled labour, such as making furniture. One person sentenced to death had even been able to take a course in journalism. With regard to interrogations, prisoners were informed of their rights, as in the British system. As for some forms of punishment of detainees, such as handcuffing, those were extreme cases and those cases were submitted to a prison's board.

Aliens entering illegally into the country might be deported, he said. People with criminal records in their own countries, or those who came to deal in drugs and encourage prostitution, were among those against whom measures had been taken to expel from the country. Also, there were certain laws recognizing different religious activities. Every year money was set aside to those different religions, to pay for priests, mosques and other things related to different religions.

There was freedom of the press in Mauritius, he said. The publication of false news was submitted to a particular procedure in court, with a regular trial, and the accused was given the right to present its case. Sometimes publications could be banned, such as had been the case with The Satanic Verses. Mauritius was somewhat a mini-United Nations, with people from very different cultures. That was very harmonious, but also fragile and facts that could damage that harmony should not be allowed. He explained the history of the book entitled The Rape of Sita, and said just giving a book such a title was offensive to quite a large part of the population, since a book of the same name was worshipped by Hindus.

Questions from Experts

CHRISTINE CHANET, expert from France, said it had been indicated that there was no forced labour in Mauritius. However, it was also indicated that forced labour can be inflicted on detainees. If that was not remunerated labour, it was forced labour. How was that compatible with article 8 of the Covenant, which prohibited forced-labour penalties? she asked.

She said it had been was stated that detention could take place before judgement under reasons that she considered appropriate. However, in the instances cited the seriousness of the transgression and the heavy penalty

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inflicted posed a problem with respect to the presumption of innocence. Could the delegation address that issue? She asked for elaboration on a case in which a woman was expelled before her appeal had been examined. There was a ban on The Satanic Verses and The Rape of Sita. Was there any judiciary appeal in those cases? she asked.

JULIO PRADO VALLEJO, expert from Ecuador, drew attention to human rights violations carried out by the Mauritian police forces. Instances of such violence had been publicly denounced. What measures was the Government taking to prevent the repetition of such acts? he asked. Had the victims been compensated? It had been stated that the law was applied in a disproportionate manner with respect to drug-trafficking offences. Could the delegation comment? Were the police aware of their human rights duties and obligations?

What was considered to be a "reasonable" period of pre-trial detention? he asked. The report stated that there could not be bail if a question of securing public safety arose. What exactly did that mean? What was the scope of the restriction? The report indicated that detainees could be isolated, handcuffed and enclosed under certain circumstances. Under what conditions could such severe punishments be undertaken and for how long?

DAVID KRETZMER, expert from Israel, said if the length of pre-trial detention was based on the seriousness of the offence, a question of incompatibility with the Covenant was raised and required clarification. What was the procedure for examining allegations of mishandling of individuals by the police? To what extent were there independent investigators who were not connected with the police?

He expressed concern about works of art, literature and films that had been outlawed. It had been stated that the ban on Salman Rushdie's works was an administrative decision. Who made such decisions? Was there, or could there be, judicial review of such decisions? Have such applications for review been presented in Mauritius and what had been the result? He asked for additional information on efforts by Mauritius to depart from the policy of having only one television and radio station.

THOMAS BUERGENTHAL, expert from the United States, said the punishment for "aggravated prison default" was quite heavy and could include a combination of punishments. Was there a right of appeal to a judicial body regarding the imposition of such sanctions? Was it true that a constitutional amendment entered into force last year under which suspected drug traffickers might be detained indefinitely? If so, what was the relationship between that amendment and the proposed "dangerous drugs act"?

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CECILIA MEDINA QUIROGA, expert from Chile, said the fact that a person might not be released on bail only because of the seriousness of the offence raised issues of compatibility with the Covenant. Was it correct that the "dangerous drugs act" of 1995 stated that a person under reasonable suspicion of drug dealing would be deprived of consultation with a lawyer for 36 hours? What was the factual situation of the segregation of accused persons and convicted persons, which the report stated was "done when possible"? She also asked for clarification regarding the question of imprisonment for failure to fulfil contractual obligations. Could a person be tried for an offence committed 30 years earlier? What was the penalty for the offence of publishing false news?

Mr. MAVROMMATIS, expert from Cyprus asked, what was the practice in respect of treaties succeeded to by Mauritius as a former colony of France? The modern trend in democracies was that freedom of expression was one of the most important things it could have. Very few people today made allegations about the publication of false news. That was increasingly being taken care of by commissions of journalists, not treated as a criminal offence. Even in cases where the main purpose was to protect the judiciary from criticism, reasonable criticism was healthy.

ELIZABETH EVATT, expert from Australia, joined in a question concerning the banning of the book of The Rape of Sita. That book's subject matter dealt with sexual violence and the rights of women. She sought information on the extent to which domestic violence and the murder of spouses existed in Mauritius and to what extent restraining orders against those problems had been issued. To what extent did the women's movement in Mauritius consider that to be an important issue?

She also joined in expressing concern regarding the punishment of the publication of false news. Regarding the trade union and industrial law, she asked whether the envisaged review would cover the export protection zone in Mauritius, where a majority of workers were women. According to information she had received, women there were discouraged from joining trade unions. That problem was common to most of those zones, unfortunately.

TAMAS BAN, expert from Hungary, expressed concern over the cases of detainees who could not be released because detention was required for the protection of witnesses. That was too high a price to be paid. In a country so multilingual, how was free assistance from an interpreter ensured and what was required for such assistance?

ECKART KLEIN, expert from Germany, joined in the questions concerning the publication of false news. It might take a long time to prove the truth of an allegation. What degree of diligence had to be applied before news might be published? he asked.

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FAUSTO POCAR, expert from Italy, said the report said, with regard to article 15 of the Covenant [which states in part that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it was committed] that there had been no significant developments. That contrasted with the previous report. Had any thought been given to adopting a provision to comply fully with article 15. Concerning article 21, which concerns the right of assembly, he said that under the public gathering act a meeting must be authorized by the commission of police, which could authorize it or not. Was it possible to appeal those matters to the court?

NISUKE ANDO, expert from Japan, also expressed concern with matters regarding freedom of expression. He asked for concrete ideas on how the false news clause had been applied. Concerning freedom of association, he asked about the application of the labour laws in the export oriented economic zones. The International Labour Organisation (ILO) had said that Mauritius was incorporating some of the model treaties. What was the reason for the incorporation of those model treaties? he asked.

Mr. BHAGWATI, expert from India, asked about a provision concerning activities of the judges after retirement. He also sought information on matters related to legal aid. Concerning the banning of books, was there a right of appeal or judicial review? Could prisoners send letters to legal authorities or other correspondents? he asked.

MARCO TULIO BRUNI CELLI, expert from Venezuela, asked if there was no specific law consecrating a right stated in the Covenant, in what way did the State guarantee that right? The report stated that there would be amendments to the Constitution. Did that mean that some of the Covenant's rights were still not guaranteed to the people of Mauritius? he asked.

Lord JOHN MARK ALEXANDER COLVILLE, expert from the United Kingdom, said the Mauritian Constitution provided for a person to be held up to seven days before being charged, under specified circumstances. Clarification was required on that. He also asked for an explanation regarding the granting of bail. With respect to aliens, what was the procedure when there were claims for asylum or when deportation decisions were taken. Were there provisions for judicial review of such decisions which, presumably, were taken at the ministerial level?

The Constitution addressed a "right to silence", he said. If an accused person refused to give any information to the police when interviewed after arrest, or did not give evidence at the trial, he was exercising his right of silence, which was guaranteed by the Covenant. What inferences was the Court allowed to draw from his silence? The report stated that the Ombudsmen had very wide powers to investigate complaints of mistreatment of a citizen.

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Should such a charge be vindicated, what happened? Was compensation paid? Was the law changed?

Response by Mauritius

Mr. SEETULSING, of the Ministry of Justice of Mauritius, said there was no forced labour, in the sense of "having to break big stones". However, "they are expected to learn some kind of skills in prison". A question had been raised regarding "aggravated prison default". That charge related to any detainee who, for example, mutinied or incited any detainee to mutiny; took part in an aggravated assault on any detainee, officer or other person; attempted to escape from prison or other lawful custody; or made a false or malicious allegation against an officer or other person.

On the banning of books, he said that in both cases, there was no formal banning. "Mere declarations" were made by the former Prime Minister stating that they were being banned. No formal action was taken. Had any such action been taken, the author of The Rape of Sita could have appealed to the courts. In neither case was there an appeal to the courts by the author. Many copies of the book had already been sold. Anyone who wanted to smuggle The Satanic Verses into Mauritius was able to do so.

On measures taken by the Government to prevent police brutality, he said authorities prosecuted those policemen. At the time of police recruitment, there was a screening process. Subsequently, police superiors saw to it that their subordinates behaved in a proper manner. If there were repeated allegations against someone, inquiries should be conducted, with a view to possible disciplinary action.

"Drug trafficking is a bane in the world; it is one of the worst curses that can exist", he said. While the police should not act on "mere suspicion", one could not deal lightly with cases of drug trafficking. When there was evidence of police brutality, appropriate measures were taken and there could be compensation.

He said the new Government had promised to set up a new broadcasting authority before the end of the year to allow broadcasting by independent operators. The authority would see to it that standards were preserved and that a certain percentage of broadcasting hours were devoted to culture and educational programmes.

It was not correct that suspected drug traffickers were detained indefinitely on mere suspicion. On the matter of detention incommunicado for 36 hours, he said the "dangerous drugs act" was not yet in force. A determination had to be made on whether such detention would come into force.

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However, the reality of drug trafficking had to be considered, he said. For example, as soon as a trafficker was released, he could warn his compatriots within the country, which did not facilitate the work of the police. Similarly, lawyers often conferred with their clients and conveyed such information to drug dealers on the outside.

Continuing, he said that Mauritius did not abide by article 11 of the Covenant, which provides that no one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. There were penalties for debts. There were people who could contract very large debts and be happy to spend several months in prison and be free not to have to pay the debt. As for delays in prosecution, the report had mentioned two cases. In both cases it had been very difficult to gather evidence. As for the prohibition of meetings by the police, he said there was always the right to appeal to the courts; the whole procedure would take generally 24 hours, no hardship was caused to the people. That was not found to be a restriction to the freedom of assembly or expression.

On contempt of court, he said there was a need to balance independence of the judiciary with freedom of the press. There was a prohibition against publishing false news. Many newspapers published false news and when they were sued, the paper was closed and the person whose reputation had been ruined could not get any compensation. Thus, first there was a guarantee required from newspapers, but that had been subsequently lifted; so it could not be said that there was no freedom of the press in Mauritius.

As for domestic violence, he said one could not deny that there was some level of it in Mauritius as in all societies. It was quite common for Creole to be used in courts and interpreters were provided. With the abolition of the death penalty, those who were condemned to it would now benefit from lighter penalties. He said that Mauritius was not a "banana republic" and the rule of law had prevailed in his country up to now.

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