Order for Second Reading read.

(10.56 p.m.)

The Attorney General (Mr Y. Varma): Mr Speaker, Sir, the Government Programme, at paragraph 23, states, inter alia, that Government will introduce a new Bail Act and that Courts will be able to impose a curfew mechanism on detainees and order them to wear electronic bracelets.

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

Before bringing amendments to an Act as important as the Bail Act, it was imperative to engage in a wide-ranging process of consultation. In that regard, I chaired several meetings, which were attended by various stakeholders including –

(a)        the Prime Minister’s Office;

(b)        the Office of the Director of Public Prosecutions;

(c)        the Police, and

(d)        The Ministry of Finance and Economic Development (which was present due to the financial implications of the Bill).

I have to add that my office also had the benefit of Sir Victor Glover, Kt, GOSK, Legal Consultant to my office, in the drafting of this Bill.

Further, the Bill was circulated to the Bar Council, which endorsed the proposed amendments. I have to add that one member of the Bar Council, expressed some reservations as to whether the new proposed amendments, more particularly clause 8 of the Bill, will make the granting of Bail more restrictive. This view was not shared by other members of the Bar Council and by my office.

The Judiciary was also consulted in relation to this Bill and I have to add that the Master and Registrar, has informed my office that the Chief Justice will make arrangements for Court sittings on Saturdays, Sundays and public holidays from 1000 to 1400 to deal with hearing of Bail applications made by persons arrested during weekends, on Fridays and on the eve of public holidays. Mr Speaker, Sir, I will refer to my reply to PQ B/597 wherein I assured the House, upon a question put by the hon. Second Member for Port Louis South and Port Louis Central that the law in relation to weekend custody will be reviewed. Mr Speaker, Sir, not only have we taken on board what the hon. Member has requested ,but we have gone one step further as we have consulted the Judiciary and have received the commitment from the Judiciary that there will be Magistrates available to hear bail motions on Saturdays, Sundays and public holidays. This is a marked improvement on the concept of duty Magistrates and will no doubt reinforce the constitutional right to liberty of our citizens.

Mr Speaker, Sir, this Bill aims at revamping the Bail Act with a view to providing a better framework for the administration of the statutory provisions pertaining to bail.  The Bail Act dates back to 1999 and has been amended in 2002, in 2004 and in 2009. The amendments brought to the Bail Act were not of a comprehensive nature and the draft Bill aims at significantly improving the legislation which is of paramount importance both in respect of law and order and respect for human rights.

Mr Speaker, Sir, the Bail Act must be read together with sections 1 and 5 of the Constitution, which guarantee the right to personal liberty and which preclude any automatic denial of bail even when the suspect is charged with the most serious offences. As investigations have become more complex, it is crucial to have modern methods of monitoring detainees at the pre-trial stage. It is in this context that the introduction of the electronic monitoring mechanism has to be seen. In the case of Islam v Senior District Magistrate, Grand Port District Court, 2006 Supreme Court Judgment 282, the Supreme Court observed as follows –

“10. The fundamental proposition of our law is that bail is a judicial matter so much so that even Parliament cannot by legislation seek to encroach on the power of the judiciary to deny bail to a defendant.  Our case-law on this aligns itself with that obtains in developed jurisdictions in the matter: more specifically, the Strasbourg jurisprudence on the European Convention, the text of which is very much similar to Chapter 2 of our Constitution, often referred to as our Bill of Rights.

24. Well-advised jurisdictions have addressed the issues with advance research and planning. A modern bail law in a society becoming more and more complex and impersonal, demands modern methods of monitoring. Logistics have combined with organisational structure, tools have vied with technology and means complemented with method. Thus, with all the guarantees of a citizen who is deemed innocent until proved guilty under our Constitution, the new devised system has treated its citizen released on bail in such a way that he is not released as a hazard whether for himself or the public.
25. 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 a central control. Where appropriate, this system is coupled with other conditions imposed on suspects such as night-time curfew, for example, from 19 00 to 07 00 hours, a ban on using mobile phones and the internet, obtaining permission from the authorities to meet anyone outside the home(…).
26. 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. They may also arguably present a serious and real threat to security. The ill-served detainee may be paying for the short-comings of our present system by his inevitable detention and the citizen by a compromise of his other human rights.”

Mr Speaker, Sir, having regard to the comments of the Supreme Court in the case of Islam, it is clear that we have, with this Bill, legislated to put our Bail Act in tune with modern times and in line with the right to liberty as enshrined in our Constitution.

• Mr Speaker Sir, in addition to the issues I have delved into before, I have to add that some other significant amendments which the Bill seeks to bring to the Bail Act are as follows – the introduction of a new section 3A, which provides that bail applications should be heard and determined within the shortest delay. I have to add that the hon. Chief Justice is in agreement with this proposed amendment.  Mr Speaker, Sir, the hon. First Member for Savanne and Black River raised the issue pertaining to delay in delivering bail rulings (in PQ B/587) and, as undertaken by me in this House, due consideration has been given to his views;
• the amendments to be brought to section 4(2) of the Bail Act purport to introduce new considerations which the Court may take into account before exercising its discretion to release a defendant or detainee on bail;
• grounds for refusing bail (under section 4(1) of the Bail Act) are clearly distinguished from factors or considerations (under section 4(2) of the Bail Act) to be taken into account when determining whether or not a defendant or detainee is to be released. It is proposed, in line with the view of the Office of the DPP, to amend section 4(1) (b) to introduce a new ground in relation to refusal of bail. This new ground is in line with the jurisprudence of the European Court on Human Rights and relates to the preservation of public order;
• the proposed amendment to section 5 of the Bail Act seeks to cater for the situation where a defendant or detainee is unable to provide surety. It will be possible with the amendment for the Court to impose conditions of a non-financial nature for his release on bail.  Such a provision will ensure that the Bail Act affords equal treatment to those who have means as well as those who do not;
• the proposed amendment to section 7 of the Bail Act will ensure that the legal framework, in relation to the other conditions, which may be imposed by the Courts for the release of a defendant or detainee on bail, is more comprehensive than the very general form in which the section actually stands. Thus, the proposed amendment sets out, in detail, some of the conditions which a Court may impose on a defendant or detainee who is granted bail, and further provides for the possibility of imposing the wearing of an electronic bracelet on a defendant or detainee who is released on bail;
• provision is also made in the proposed section 7(3)(c) of the Bail Act (to be introduced by clause 8 of the draft Bill) for a Court to impose a condition with regard to the restriction of the movement of the defendant or detainee after 6 p.m. This is usually referred to in other jurisdictions as a “curfew order”. This amendment is in line with the Government Programme 2010-2015, where it was proposed to introduce the concept of curfew orders in our law;
• section 12 of the Bail Act will be amended to allow a police officer not below the rank of an Assistant Superintendent of Police to release a detainee on parole during weekdays as well as during weekends, where the detainee cannot practicably be brought before a Magistrate. With such an amendment, the right to liberty of an individual will be further enhanced, as if the detainee will be kept in custody only if a police officer below the rank of Assistant Superintendent of Police certifies in writing that he has reasonable grounds to believe that, if released, the detainee is likely to fail to comply with section 12(2) of the Bail Act, to tamper with evidence, to interfere with witnesses, to commit another offence or to put his own security at risk;
• further, the draft Bill seeks to amend section 22 of the Bail Act to provide for harsher penalties, inter alia, for persons who breach conditions of bail and for sureties who fail to ensure that persons for whom they stood as surety adhere to the conditions imposed by the Court on them. This amendment, Mr Speaker, Sir, is also in line with paragraph 23 of our Government Programme 2010-2015;
• a new section 23 in the Bail Act to provide for the liability to be arrested for breach of conditions of bail. This new section will allow the police to monitor persons released on bail and ensure that persons who breach conditions of bail are faced with the real possibility that they will not be granted bail by a Court, which will have to determine whether such persons may be released on bail subject to the same or different conditions or should be remanded in custody.

Mr Speaker Sir, this Bill will provide the Police and our Courts with enhanced powers to ensure that defendants or detainees comply with conditions of bail. The Bill, therefore, aims to strike a proper balance, in accordance with our Constitution and human rights principles, between the right to liberty of the individual and the protection of society. We have sought and obtained the views of all relevant stakeholders and we have taken on board their concerns to come up with a Bill which represents a consensus in an area where the delicate balance between law and order and right to liberty requires a careful balancing exercise.

I will end, Mr Speaker, Sir, by thanking the officers who have worked hard on this piece of legislation.  I also thank all the other stakeholders who have contributed in the drafting of the Bill.

With these words, Mr Speaker, Sir, I commend the Bill to the House.

Mr Choonee rose and seconded.

 

(3.12 a.m.)

            Mr Varma: Mr Deputy Speaker, Sir, I would like, first of all, to thank all the hon. Members who have intervened on the Bill from both sides of the House.  I believe there is consensus on the Bill, but I will try to be as brief as possible in replying to the hon. Members.

Mr Deputy Speaker, Sir, the hon. third Member for Grand River North West and Port Louis West raised the issue – and this was also raised by the hon. First Member for Savanne and Black River as well – of the circular of the Police.  Mr Deputy Speaker, Sir, I do not believe it is for me to comment on the operational measures taken by the Commissioner of Police.  We should take comfort in the fact that there is a right to bail, and that the decision as to whether to release a person on bail is that of the Judiciary.

Mr Deputy Speaker, Sir, measures are to be put in place by the hon. Chief Justice to complement the proposed  section 3A, where mention is made that –

“The Court shall endeavour to hear and determine any application for bail within the shortest delay.”

Mr Deputy Speaker, Sir, in fact, we have included the wordings in section 3A of the Bill, and that shows that we are sending a respectful but clear message to the Judiciary regarding the plight of detainees.  It is not for us to interfere with the administration of justice.  In fact, I did inform the House in my speech that the Master and Registrar has written to me and informed me that there would be court sittings on Saturdays, Sundays and Public holidays.  We should rely on the words of the Judiciary as regards the commitment which has been taken.

There were also issues raised by hon. Members of the Opposition as regards court fees.  I replied to a question already on that, Mr Deputy Speaker, Sir, and I do understand that there is no firm decision which has been taken by the Judiciary, and the matter is still being discussed at the level of the Rules Committee.

Mr Deputy Speaker, Sir, again the hon. third Member for Grand River North West and Port Louis West raised the issue of ‘means’; why we have included ‘means’ in the Bill.  Mr Deputy Speaker, Sir, it is the first time that we are introducing non-financial surety.  The court will have to assess the means of the person to be able to impose the non-financial surety.

Concerning the other issues which were raised by the same hon. Member as regards community ties and associations, I will refer him to the case of Deelchand v. DPP, and I will briefly quote –

“The risk of absconding has to be assessed with regard to several factors. Considerations relevant to the risk of absconding will include the strength, weakness or absence of family, community, professional or occupational ties and financial commitments as such ties, if strong, might be strong incentives not to abscond and, if weak might increase the risk of absconding.”

Mr Deputy Speaker, Sir, again issues were raised as regards clause 23 of the Bill.  The surety, in fact, is responsible to ensure that the person for whom they stood as surety has to attend court.  This provision allows the surety to notify the police in writing if the person is unlikely to surrender to bail.  This amendment, in fact, places the responsibility on the surety to ensure that the person released on bail surrenders to the custody of the court.

Mr Deputy Speaker, Sir, as hon. Faugoo rightly pointed out, clause 23(3) should be read together with clauses 23(4) and (5), that is, where the person arrested should be brought to court as soon as practicable.

Mr Deputy Speaker, Sir, again, the hon. second Member for Constituency No. 2 raised a couple of points.  I have addressed one of them, that is, section 3A. As regards the point raised concerning the police and in what circumstances they should object to bail, I don’t think that it is for the legislator to prescribe when the police should object to bail, as it is for the Commissioner of Police to provide guidance to officers and the Judiciary to decide whether or not to grant bail.

Mr Deputy Speaker, Sir, again the hon. Second Member for Constituency No. 2 raised the issue as regards electronic monitoring mechanism and why it is restrictive.  I believe the issue was raised by the hon. First Member for Quartier Militaire and Moka as well.  In fact, I should inform the House that it is a very costly mechanism, and it will only apply to this restricted category for a start.  It will not, of course, be applied on the same scale as it is in the U.K.

Mr Deputy Speaker, Sir, several Members raised the issue about the new ground as regards public order.  I will draw the attention of the House to a Privy Council case, namely the case of Hurnam v. The State, wherein reference was made to the preservation of public order.

Mr Deputy Speaker, Sir, again, the hon. Second Member for Constituency No. 2 raised the issue as regards section 22, which provides at present for a fine of Rs5,000 – not Rs50,000 – and to imprisonment for a term not exceeding two years.  There is no section 23 at present.  Section 23 of the Bail Act was repealed.  We have checked that, Mr Deputy Speaker, Sir.

Mr Deputy Speaker, Sir, a few points have been raised by the hon. First Member for Quartier Militaire and Moka.  I will briefly reply to them.  I have already replied to the first one as regards section 23(3) which has to be read together with subsections (4) and (5).

As regards reporting, Mr Deputy Speaker, Sir, to a specified person or authority, as hon. Minister Faugoo has rightly pointed out, this is only to make the provision more flexible.  As regards specified person or authority, it is for the court to decide and, of course, in all logic, they will not tell a person to report to the institutions which the hon. Member has referred to.

The same points were raised, Mr Deputy Speaker, Sir, as regards time frame, and I have already replied to that.

Mr Deputy Speaker, Sir, there are many instances in this piece of legislation which have been applauded by one side of the Opposition, but I did not find that from the hon. First Member for Quartier Militaire and Moka. In fact, as I stated in my speech, there are many measures which are innovative and it is an improvement on the Bail Act which was passed in 1999.

Mr Deputy Speaker, Sir, the last point which was raised is as regards the subsection 5, which was repealed. Mr Deputy Speaker, Sir, in fact, section 85 of the District and Intermediate Courts (Criminal Jurisdiction) Act states, and I quote –

“A Magistrate may on the ground of poverty or for other reasonable cause exempt any person from the payment in whole or in part of any fee payable in any criminal proceedings entered before him (…)”

That replies to the qualm of the hon. Member.

Mr Deputy Speaker, Sir, I believe that I have been brief enough and I have replied to almost all the points raised by the hon. Members, I think.

Thank you.

Question put and agreed to.

Bill read a second time and committed.