Government?s decision to come forward with amendments to the Criminal Procedure Act has raised quite a few eyebrows. Opposition members have hinted that there might be some other agenda behind the move. Is there?

Hard to tell. The official line is that, following a Privy Council judgment in Khoyratty versus the State in 2006, where Khoyratty was sentenced to a 45-year sentence under the Dangerous Drugs Act (DDA) ? and subsequent criticisms of the Law Lords against Mauritian Parliament?s decision in 1994 to impose the mandatory sentence ? has urged Parliament to review said mandatory sentences.

The logic is simple. If mandatory sentences can be quashed on the basis of their unconstitutionality, then one by one, all detainees sentenced to mandatory sentences could contest their condemnation, arguing that it is not constitutional. Prior to the Privy Council?s judgment in March 2006, the Supreme Court had also ruled in June 2004 that Parliament had encroached on the Judiciary?s powers; the State doesn?t stand much of a chance really, if people start contesting their mandatory sentences.

The constitutionality of the mandatory sentence is put into question because the principle of separation of powers ? inherent in a democratic and sovereign state ? states that the judiciary should be independent from the executive and the legislature. This means that Parliament, although invested with the power to make laws, should not encroach on the powers of the judiciary. It is a thin line, really.

A few contestants

The judiciary interprets the laws that Parliament makes. But, while interpreting, the judiciary should also have the discretion, in applying the laws, to decide what sentence to hand out to individual cases. If Parliament can, for good governance and in line with Government?s policy, decide that they will tighten laws; they must nevertheless leave the judiciary?s discretion well alone.

When imposing a mandatory sentence, Parliament removes the discretion; the magistrate or the judge cannot then decide each case on its own merits. The example the prime minister, Navin Ramgoolam used to illustrate this point is a good one; a man may decide to help his dying wife, who suffers from terminal cancer, to end her life. He would be liable to murder. Another man may have decided to cold-bloodedly murder another one for perverted reasons. Both of them would technically be liable, under the laws as they are, of a mandatory 45-year sentence. This is hence, not the job of Parliament to impose mandatory sentences.

This argument is full of sense and is hard to counter ? although some, unwisely did try. This question, however, is why now? There are at the moment, says the attorney general, Rama Valayden, a couple of cases in court, of detainees, contesting their mandatory sentences. The better-known one is probably that of the Sumodhee brothers, found guilty in the l?Amicale fire affair in 1999. They were sentenced to a mandatory sentence and are at present contesting its constitutionality. Last September, in court, a representative of the State Law Office said that the matter should soon be resolved ?because a new law will be introduced?. In other words, as soon as the amendment to the criminal procedure is voted with retroactive effect, the sentences will be automatically reviewed.

Ongoing cases unaffected

Shakeel Mohamed explains this admirably when he says: ?It?s like a football player wins a penalty shoot out but just when he?s about to shoot, the referee stops him and says he had just changed the rules of the game and a penalty is no longer allowed.? This argument makes sense. So cases that are actually before the court will not be affected by the amendment to the Criminal Procedure Act.

Under the noble attempt to render unto the judiciary what belongs to the judiciary ? its discretion ? Parliament is also killing two birds with one stone. Besides the cases currently before the court, the State is taking no chances to have sentences being quashed because Parliament has erred.

This whole episode has highlighted the need more than ever to keep separate the powers of the judiciary and those of Parliament; so that the judiciary can call politicians to order as and when.