Dev Hurnam was right to ask for bail and magistrate Aujayeb to accede to his request. The Privy Council gave its ruling in the appeal made by Dev Hurnam against the state when the Supreme Court refused him release on bail, thus proving the Director of public prosecutions wrong. Hence, it points to a weakness of the judges who often deprive suspects of their liberty without sufficient reasons.

As for the Privy Council, the situation is clear in such cases. As stated by the European court ? the European convention was extended to Mauritius while it was still a Crown colony ? ?a person must be released unless the state can show that there are ?relevant and sufficient reasons? to justify his continued detention.? The Privy Council considers there were no such reasons for refusing Dev Hurnam bail.

After Antoine Chetty made allegations that Dev Hurnam was involved in a conspiracy to commit murder on two policemen and a conspiracy to commit serious assault on Senior puisne judge, Bernard Sik Yuen, the latter was arrested. He then asked for bail, which the magistrate Aujayeb accepted under certain conditions.

But the DPP asked for the suspension of the judgment a few days later and lodged an appeal against the magistrate?s judgment stating the latter was ?manifestly wrong.? The Supreme Court supported the DPP and refused Dev Hurnam release on bail.

However, the Privy Council seems to think that the Supreme Court was ?manifestly wrong.? According to the Law Lords ruling, ?The criticisms of the magistrate?s judgment made by the Supreme Court, and strongly expressed, were not merited, and the Supreme Court fell into error in treating the seriousness of the offence as an all-but-conclusive reason for refusing bail.?

Continued detention in specific cases

The main mistake made by the Supreme Court may be the fact that it took into account the ?approach adopted when the 1989 Act was in force but it is an approach inconsistent with the intent of the 1999 Act?. When Razack Peeroo, the attorney general and minister of Justice and Human Rights and minister for Reform Institutions, introduced the Bail Bill 1999 in the National assembly, he made it clear that ?an important object of the bill was to recognise the right to personal liberty as an important constitutional right and to re-establish the principle laid down in Noordally v Attorney General (1986) MR 204 that the rule is that a suspect should remain at large, his detention on grounds of suspicion the exception.?

According to the Law Lords, the problem with judges in Mauritius is that they often consider the seriousness of the charges in isolation instead of dealing with all the risks that could come into play against release on bail. But basing themselves on a ruling of the European Court, they made it clear that ?the gravity of the charges cannot by itself serve to justify long periods of detention on remand (?) Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. Any system of mandatory detention on remand is per se incompatible with article 5(3) of the Convention.?

The judges criticised the grounds on which the application for bail was resisted. They pointed out that it was ?not resisted on the ground that he was likely to abscond or would not appear to stand trial.? They may imply that these are the only grounds that could have justified the appellant not being released on bail.

This is why the Privy Council totally agreed with magistrate Aujayeb who had stated at the time, ?after having weighed in the balance the nature of the evidence available, which appears to be essentially that of accomplice evidence, which although being admissible needs to be treated with utmost caution, the Court believes that the presumption of innocence should weigh more heavily in favour of the (appellant?s) release on bail.? This should make judges of the Supreme Court reflect on their tendancy to ?reinstate, in part at least, the rule deliberately discarded in the 1999 Act.?