?The grant of bail should be the rule as opposed to the exception?, said the prime minister in Parliament yesterday. In other words any arrested person who has not yet been convicted, should be released, subject to certain conditions. In actual fact however, 30% of the penal population is on remand because they have not yet been convicted and have been refused bail.

This principle affirmed and reaffirmed by the Privy Council and the courts of law, has its basis in Chapters 1 and 5 of the Constitution that guarantee the protection of the right to personal liberty. This right can be withheld for several reasons one of which being a court order and obviously, ultimately a conviction. But the presumption of innocence ? another constitutional principle ? states that a person shall be presumed innocent until proven guilty by a court of law. Now the law permits the detention of a suspect for the purpose of the police gathering evidence to prove the suspect?s guilt to the court. But, because of the presumption of innocence, this has to be done in what is called a reasonable delay because the Constitution further avers that any person who is not tried within a reasonable time frame shall be released either unconditionally or upon reasonable conditions.

The reality couldn?t be any further from the truth. Approximately 800 out of the 2,400 detainees scattered in all the prisons, have not been convicted yet. In other words, they are still legally being presumed innocent while they are wasting away in prison cells. The prime minister is aware of it. The real issue, he said in Parliament yesterday, ?is not whether to amend the Bail Act. Instead the issue concerns the type of evidence, which can be gathered and put before the Courts, in support of objections to bail in cases where it is genuinely felt bail should be refused to a suspect.? The legal grounds for objection of bail are a risk that the defendant interferes with witnesses or tampers with evidence, the likelihood that the defendant absconds or commits further offences while on bail.

Sovereign democratic state

While it is up to the court to assess those risks having regard to the seriousness of the offence and the penalty to be imposed, ?it is up to the police to ensure that they fully substantiate the grounds for objecting to bail?, says the prime minister further. Navin Ramgoolam also says he is aware of the delays in the disposal of cases in the courts, which result either in ?undeserving detainees being released by courts because their pre-trial detention is too long or in unduly prolonged pre-trial detention.?

Politicians clearly are on a different wavelength from judges in this matter as in many others. The prime minister, in his reply, seems almost to be regretting that he cannot amend section 1 of the Constitution, which states that ?Mauritius is a sovereign democratic state? ? amendment which will require a three-quarters majority vote. Unless this amendment can be brought to the Constitution, the Bail Act 1999 will be read together with sections 1 and 5 of the Constitution and this is what makes judges rule that the granting of bail is the rule and the refusal, the exception. To such an extent that even laws like the Dangerous Drugs Act and the Prevention of Terrorism Act, which deal with offences, deemed to be more ?hardcore? than others and under which bail is not granted, have been frowned upon by the courts of law.

?Undeserving detainees being released on bail? is not so much of a problem as those who are ? in unduly prolonged pre-trial detention.? This is so because of the presumption of innocence. The Bail Act 1999 is thus in line with the Constitution and with the European Convention on Human Rights from which our Chapter two on fundamental rights has been borrowed.

Except that this is all in theory.