Human Rights Committee

Eighty-Third Session

2262^nd Meeting (AM)

HUMAN RIGHTS COMMITTEE CONCLUDES REVIEW OF REPORT BY MAURITIUS

 

Experts Commend Progress Made, But Cite Gaps in Constitutional Protection of Rights

There had been progress in Mauritius since that country’s last report to the Committee on Human Rights in 1996, but there was still insufficient integration of the International Covenant on Civil and Political Rights into the nation’s Constitution, revealing gaps in compliance and a rather mixed review by Committee experts, who concluded consideration today of Mauritius’ fourth periodic report.

Committee Chairperson Christine Chanet, expert from France, said that the comments of the 18-member Committee, which monitors compliance with the 1966 Covenant, on Mauritius’ third periodic report in 1996 with respect to the status of the Covenant in domestic law, still applied today.  In particular, certain articles of the Covenant concerning criminal offence, non-discrimination and equal protection under the law had not been fully reproduced in the Constitution.  Progress had included steps to integrate Creole as a written language into school curricula and the establishment of an ombudsman for children.

Admittedly, the Mauritian Constitution did not reflect “word for word” the rights set forth in the Covenant, Satyajit Boolell, Acting Parliamentary Counsel of Mauritius said.  However, Mauritius was committed to giving effect to all rights guaranteed by the Covenant through its constitutional processes.  The 720-square-mile island State in the south-west part of the Indian Ocean had a tradition for the rule of law, respect for the Constitution, as well as respect for the doctrine of the separation of powers.  He assured the Committee that future reports would give serious consideration to implementing the recommendations concerning the place occupied by the Covenant in Mauritius law.

Experts commended the establishment of the National Commission on Human Rights, operational since 2001, for its ability to report certain criminal offences, but wished it could extend the period and scope of its action.  Ensuring the commission’s impartial nature was also deemed important.  The country’s position on persons seeking refugee and asylum status was also examined in light of the possibility that Mauritius “may be turning into a recipient country of asylum seekers”, and a recommendation was made to consider accession to the relevant international instruments and to put in place clear legislation.

Experts’ questions also revolved around reports that more than 80 per cent of Mauritian women had suffered physical abuse, linked to the perpetrators’ drug and alcohol dependencies.  One delegate said it had been impossible to obtain statistics from the relevant Ministry on domestic violence.  The delegation’s response pointed to figures from the Women’s Ministry that showed that a total of 1,512 cases of domestic violence had occurred in a one-year period so, even allowing for the fact that some women did not report such cases, she firmly believed that 84 per cent was unrealistic, and although Mauritius had a domestic violence problem, it was certainly not on the scale that experts had suggested.

Other problems highlighted during the discussion had been the broad ramifications of police brutality and the light fines and sentencing imposed on the guilty officers, and the fact that not all human rights violations were subjected to criminal prosecution.  Attention was also drawn to the dangers of too-vague anti-terrorism legislation, the total ban on abortion under any circumstances and the practice of prosecuting all persons involved, and restrictions on the media and on trade unions’ rights.

Also representing the Government today were:  Emmanuel Jean Leung Shing, Attorney General and Minister of Justice and Human Rights; Aruna Devi Narain, Assistant Parliamentary Counsel; and Jagdish Koonjul, Permanent Representative of Mauritius to the United Nations.

The Committee on Human Rights will meet again at 3 p.m. on Monday, 21 March, to consider the second periodic report of Uzbekistan.

Background

The Committee on Human Rights, which monitors compliance with the 1966 International Covenant on Civil and Political Rights, met this morning to conclude its consideration of Mauritius’ fourth periodic report.

Representing the Government were:  Emmanuel Jean Leung Shing, Attorney General and Minister of Justice and Human Rights; Satyajit Boolell, Acting Parliamentary Counsel; Aruna Devi Narain, Assistant Parliamentary Counsel; and from the Permanent Mission to the United Nations, Jagdish Koonjul, Permanent Representative.

Answers to Expert’s Questions

Opening the first round of responses to questions posed by the experts yesterday, SATYAJIT BOOLELL, Acting Parliamentary Counsel of Mauritius urged the Committee to recognize that his country was an island commonwealth, with a legislative system that would be quiet different from a continental State.  Most importantly, even though the country strongly believed in and supported international legal norms, its system had also been based on the separation of powers.  With that in mind, only Parliament could pass legislation, he said.  So, while there were many elements of the Covenant not explicitly referenced in the Mauritian Constitution, the spirit of that important instrument was most certainly reflected in legislation and in the decisions handed down by the courts.

He went on to highlight several specific instances in which the Supreme Court had upheld provisions of the Covenant, particularly concerning the rights to liberty and to a fair trial.  At the same time, he acknowledged that there had been some judgements that could be seen as contradictory, and that amending certain laws and procedures might be in order, particularly in light of the Committee’s concerns about compliance with Covenant Article 11, which stated that no one should be imprisoned merely on the grounds of inability to fulfil a contractual obligation.

On the treatment of aliens and return of foreigners to their home States, he cited a case in which an individual had arrived in Mauritius after being forcibly removed from the Malagasy Republic.  That individual had claimed he was a Malagasy citizen but could not produce the appropriate corroborating documents.  Still, Mauritius courts reviewed the case and, among other things, held that the individual was not a refugee since he was already in Mauritius.  All that showed that foreign individuals did have access to the courts in Mauritius even though the country was not a party to the 1967 Convention on the Status of the Refugee.  In addition, the Supreme Court examined in this case whether the complainant’s fundamental rights would be infringed if he were forced to return to Malagasy.

Turning to the functioning of the National Human Rights Commission, he said that that body was always headed by a former high court judge.  Investigation of claims brought before the Commission could not extend beyond two years, although perhaps that rule could be amended if the time allotment proved insufficient.  He added that Mauritius had a flourishing and independent press and civil society that served as human rights bulwarks.  Those civic actors watched the Commission’s work closely and could inform the Government if certain cases demanded attention beyond the two year limit.

He returned to a subject that had proved particularly troubling to the Committee yesterday:  ill-treatment of detainees in prisons, and police brutality.  He said that police had been fined and found guilty of aggravated assault.  Those officers would be removed from their posts.  There had not been any cases brought against law enforcement officials under the new torture laws.  On other matters, he said that the new terrorism act had not yet been applied.  Nevertheless, if it were ever to be enforced, any legal actions taken under it would have to pass the test of constitutionality.

Mauritius was a small State that took terror seriously, but had not written a “blank check” to deprive any citizens of fundamental rights.  Tourism was one of Mauritius’ socio-economic pillars, so it could not afford to be complacent, but it had, nevertheless, sent a signal by making sure that the act provided for drastic anti-terror measures, as well important safeguards for individual rights.

Another member of the delegation said that, at the present time, there had been no policy decision to recognize euthanasia in Mauritius.  Provisions of the criminal code would override standards and practices of the medical profession, so euthanasia would be considered murder, although with mitigating circumstances.  On other issues, she said that claims for “equal pay for equal work” could be submitted to the National Human Rights Commission.  She regretted that the delegation had not been able to obtain current statistics on domestic violence in the country, but she assured the Committee that the information would be sent as soon as possible.

At the same time, she stressed that the Government was unaware of the domestic violence figure -- some 84 per cent of women in a recent NGO survey had confirmed that they had been abused in their homes -- and considered it to be an unrealistic representation of the situation.  She went on to say that there were no legislative or common-law reforms to abortion laws being considered.  There were very few cases of abortion reported to the police and what few cases there were, the persons involved were prosecuted.

Experts’ Comments and Questions

ABDELFATTAH AMOR, expert from Tunisia, said he would have been grateful for more information on the interpretation of the constitutional provisions, in the context of integrating the Covenant.  He had received details on articles 11 and 13, concerning, respectively, non-imprisonment in cases of an inability to fulfil a contractual obligation, and the circumstances for expelling aliens from the territory of a State party, but the main problem concerned the place that the Covenant occupied in Mauritius law, which had not been sufficiently addressed.

PRAFULLACHANDRA NATWARLAL BHAGWATI, expert from India, asked a series of questions about the large number of complaints made to the National Human Rights Commission, based on reports he had received from non-governmental organizations.  Did the commission actually investigate those complaints, and could it come to a determination in that regard, concerning not only criminal matters, but also human rights violations?  Did the commission have the right to go to court, and had it ever done so, or was it merely an investigative agency?

On abortion, he said it appeared that abortion was totally prohibited, at any stage.  Yet, the delegation had also said that there had been a few cases where the authorities had “closed their eyes”.  Was the Government not considering legalizing abortion in certain circumstances, as had been done in many other countries, since unwanted pregnancies sometimes caused serious problems?  What was the Government’s attitude in that regard?

NIGEL RODLEY, expert from the United Kingdom, asked if there was anything more than the imposition of a fine on police in the case of assaults, including when those assaults took place during interrogations.  Also, had he understood correctly that there was a statute of limitations against law enforcement officials of two years?  What if facts came to light some years later that could clarify a still unclarified case? he asked.

Delegation’s Response

Mr. BOOLELL said he would supplement the delegation’s answers in writing in the next three days.  Addressing a few questions, however, especially the one concerning the applicability of the Covenant in the Constitution, he said the Supreme Court, on several occasions, had made it absolutely clear that any interpretation of the constitutional guarantees should be done in a manner that was compatible with the provisions of the Covenant to promote compatibility.

Concerning the National Human Rights Commission, he said it was not authorized to enter court actions on behalf of complainants.  Upon the completion of an inquiry, the Commission sent a written communication setting out its conclusion and any recommendations to the relevant Minister, who would then report to the Commission on any action taken or proposed to be taken.  So, there was interaction between the executive and the commission to monitor progress achieved as to the recommendations made by the commission.  The commission was “a kind of first-stop-shop” for any complaints.

He added that, if circumstances revealed that a criminal offence had occurred, that would be referred to the police and then to the director of public prosecutions.  He could not overemphasize the crucial role of the director of public prosecutions, which was an independent institution.

Concerning abortion, he said that was a matter for each government.  In Mauritius, the matter was still being debated, and there were many views on the degree to which abortions could be authorized and under which circumstances.  That was still a matter on which a policy decision would have to be taken.

Yes, there were cases of assault, he replied to another question, and the sentence would be proportionate to the gravity of the act.  Once there was a conviction by the court, disciplinary action would follow, so that, in the case of a police officer being convicted of assault, that officer would be removed from the police force.

The two-year statute of limitations was “very rarely” invoked before the court, he said to further query.  Any aggrieved party could go to the highest court of appeal, but only on matters of general public importance.  There was no intention to abolish the right of appeal, but there was also no consensus at this stage for creating an appellate court as the apex of the judicial system.

Turning to questions about the country’s immigration laws, the delegate said that the immigration authorities had at their discretion the immigration act to allow entry as appropriate, taking into account the country’s small size and limited resources.  Although Mauritius had been unable to grant refugee status to some Congolese nationals recently, his country had acted in a very humane and positive manner; it had been instrumental in ensuring that the transfer was made to Australia, where the Congolese sought refugee status, with a positive outcome.

Where someone had sought asylum status, he said that that person had recourse to the Supreme Court; he could challenge any decision of the State to expel him from the territory.  That question rested essentially with the executive and should be considered in light of the various court pronouncements.  In other words, the executive’s decision to deport, extradite or deny refugee status was subjected to the courts’ jurisdiction.

He added that the immigration act had provided for a list of prohibited immigrants, including persons involved in criminal activities, drug trafficking or any other subversive activities.  The procedure for deportation was set out in the deportation act, and before deport was made, a notice was served as part of a very elaborate procedure, which could be challenged in court.

Experts Questions

MAURICE GLELE-AHANHANZO, expert from Benin, asked for further clarification as to the status of Congolese nationals in Mauritius.  He also asked if there were human rights training programmes available for police officers and other law enforcement officials.  What was being done to ensure social cohesion in multi-ethnic Mauritius?  What was being done to promote the use of Creole -- the country’s main language –- in the work of the courts and other municipal authorities?

IVAN SHEARER, expert form Australia, asked for clarification about the independence of local radio and news outlets.

MICHAEL O’FLAHERTY, expert from Ireland, said that, given that Mauritius had not ratified the refugee Convention, it was disturbing that the laws of the country did not more explicitly address refugee, asylum or deportation issues.  Was legal assistance available before magistrates in cases where deportation was an issue?  Could those decisions be reviewed by a higher judiciary?  Did the National Human Rights Commission ever get involved in deportation cases?  On other issues, he said it appeared that most human rights training in the country targeted legal and law enforcement professionals.  Fundamental rights were cross-cutting and should be promoted at all levels and to all citizens, he said.

Mr. RODLEY, expert from the United Kingdom, asked for further clarification on the outcomes in cases of assault brought against police officers.  The material that had been provided the Committee was unclear about the disciplinary action that had been taken.

WALTER KALIN, expert from Switzerland, also expressed concerns about deportation issues.  No one was expecting Mauritius to become a major home for refugees.  But it was clear that even small countries were now faced with asylum-seekers who claimed that they might be harmed if they were sent back to their home countries.  So, Mauritius’ laws must be clear on what steps would be taken in such cases.

ALFREDO CASTILLERO HOYOS, expert from Panama, said that, although there had been significant positive changes in Mauritius, concerns remained, particularly regarding the independence, mandate and membership of the National Human Rights Commission.  On domestic violence, he noted that the non-governmental organization survey that had been mentioned earlier, along with noting the high number of abuse cases, had also spotlighted that a majority of those cases had been the result of alcohol or drug abuse.  What was being done to address alcohol or drug addiction in the country?  He also asked for more clarification on trafficking issues, as well as on asylum and refugee issues.

He asked whether the Merchant Shipping Act had been amended so that it was in conformity with international laws prohibiting forced labour.  There were also concerns about the right of assembly, the reportedly racial and ethnic hiring guidelines used by the hotel industry in the country, and the need to increase the ethnic diversity in the country’s police force.

Delegation’s Response

Mr. BOOLELL said that Creole has been used as a spoken language since the country’s independence.  It was a very young language, and was only gradually making the transition to a written one.  The first step had been taken in that regard in Mauritius because agreement had existed to harmonize the language and make it part of the school curriculum, in written form as well.

In terms of the social integration of minorities in society, he said that Mauritius was composed of people of different races and religions, but there was no distinction made between them in the law.  If a violation occurred, the person could resort to the Supreme Court.

People were recruited in the government sector on the basis of merit, he replied to a further question.  Moreover, anyone who considered themselves to have been unjustly treated in a recruitment process could enter a case for judicial review by the Supreme Court.  He wished to promote the country’s diversity, which gave Mauritius its special harmonious reputation.

Concerning forced labour, he reported to the Committee that that would be removed from the statute book.  On the comment that strikes were illegal, he said they were not, but a protracted procedure of mediation and reconciliation had to be exhausted first before resorting to a strike.  Foreign workers enjoyed the same rights as any Mauritian workers.

Regarding the passive publicity of human rights in the country, he said that that point had been taken.  The National Human Rights Commission was also the channel for sensitizing the population on that issue and creating awareness of it, together with the Women’s Affairs Ministry, and Children’s Ombudsperson, and others.  All strands of government were responsible for disseminating such information, and non-governmental organizations also played their part.

Another delegate explained that there was no longer a government monopoly over radio, which had existed prior to the liberalization of the airwaves.

On the question of deportation, which had been raised by several members, she said the point had been taken that there were no human rights provisions in the legislation governing deportation.  That concern would be conveyed to the appropriate governmental authorities.  She assured the Committee that human rights considerations were taken into account at various levels of the deportation process; however, she agreed with the members that it was highly desirable for that to be part of the legislation, itself.

Chairperson’s Closing Remarks

In concluding remarks, CHRISTINE CHANET, Committee Chairperson, said there had been clear progress since the country’s first report in 1996, particularly with respect to collective rights, for which the ombudsman for children was at the forefront of those efforts.  With respect to human rights overall, Committee members were rather mixed.  Some had agreed that the National Commission had been able to report certain criminal offences, but that procedure was not yet complete.  There were also a number of problems in terms of ensuring an impartial commission.  Also of concern was the fact that not all human rights violations were subjected to criminal prosecution.  Members would like the commission to play a fully effective role, she stressed.

She said that the concluding comments from 1996 could apply today in terms of the status of the Covenant in domestic law, and it was not yet in the Constitution.  That had applied particularly to article 15 of the Covenant, which said that no one would be held guilty of a criminal offence on account of any act or omission that did not constitute a criminal offence, under national or international law, at the time when it was committed.  Nor would a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.  Some constitutional provisions were compatible with the European Covenant on Human Rights, but not yet with the International Covenant.  The delegation, itself, had acknowledged that articles 2 and 26 of the Covenant, concerning, respectively, non-discrimination and equal protection under the law, had not been fully reproduced in the Constitution.

On the other hand, she said that members had all favoured the integration of the Creole language, so that it would no longer be discriminated against.  That was an international language, which was spoken outside of Mauritius, including in France.  Studies were under way about integrating Creole and institutions had sprung up to develop Creole literature.  It would be very useful for teachers to be trained in Mauritius, and for children to have written knowledge of the language.

Turning to police violence, she said that, given the broad ramifications of police brutality, a single day of suspension from the force or just some fines did not seem to be in keeping with the events pointed out in the discussion.  With respect to terrorism, there was a danger of such legislation being too vague.  Some other problems that had been underscored during the discussion had included violence against women, abortion, the task force that had not yet concluded work on the rights of unions and trade unions, and restrictions in the media.

Delegation Statement

EMMANUEL JEAN LEUNG SHING, Attorney-General and Minister of Justice and Human Rights Minister, said, during the past two days, the delegation had held constructive discussions.  The quality and pertinence of the talks had been stimulating and helpful.  The Committee’s recommendations would be widely publicized upon the delegation’s return home.

Turning to some specific issues that had come up repeatedly during the discussions, he said that the Government was faced with a task of ensuring the safety of citizens and protecting human rights.  The country’s anti-terrorism legislation had been crafted to balance those concerns and, while that law might not be perfect, the Government believed that it was the overall best response to this important international issue.

On the Chagos Archipelago, which he said had been unlawfully detached from Mauritius’ territory in contravention of General Assembly resolutions, and from which its citizens had been forcibly displaced, he said that the Government had regularly sensitized the international community to the plight of those citizens and the situation on the archipelago.  It would continue to do its utmost to address the matter in a way that was consistent with international law.

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