All international conventions and the Mauritius Constitution protect the right to liberty; the right to life and provide protection against inhuman treatment and torture. There can be no derogations on the right to life and protection against torture and inhuman treatment. But there can be derogations in respect of the right to liberty. And one of the exceptions is arrest on reasonable grounds of having committed an offence.

Since the Financial Crimes Commission (FCC) embarked on a widespread investigation on money laundering and other financial crimes, several individuals have been arrested on suspicion of being involved in one or more financial crimes. A new phenomenon seems to be prevailing since the FCC has started to arrest certain individuals on suspicion of money laundering or related financial crimes. These individuals, who were presumably enjoying a relatively good health in the comfort zone of their private residence, are taken ill suddenly and file an immediate request to be taken to a private clinic, and not to a public hospital. The impression that the public get from this phenomenon is that these individuals are trying their best to avoid detention in a police cell or in jail to enjoy the comfort of a private clinic that they can afford.

There may be two scenarios when somebody is arrested. Either the arrestee was enjoying good health and falls sick on arrest. Or they were already suffering from an aliment for which they must have been undergoing medical treatment. If individuals were already sick at the time of the arrest or genuinely fall sick after their arrest – according to their human rights – they are entitled to prompt medical care. They must be subjected to a medical examination to ensure they are in good health. Who is going to be the judge of the health of the arrestee?

The general rule is when a police officer or an FCC officer arrests an individual, the arrestee must be taken before a magistrate as soon as practicable, as provided by the Constitution. This procedure is very important as it allows the magistrate to decide on bail or remand, as well as address the arrestees’ constitutional rights like their overall well-being or health. If the latter have any health problem that requires immediate attention, the magistrate would no doubt order or direct that the arrestee be medically examined by a state doctor and private doctor that the arrestee may choose.

It is based on the report of the medical practitioners that the magistrate would decide whether the arrestee should be detained in a public hospital initially. The issue of a private clinic would arise only if the public hospital does not have the facilities to treat the ailment of the arrestee. A transfer or admission to a clinic is not the prerogative of the arrestee. The arrestee cannot and should not be allowed to decide on his own volition to escape a police cell or jail by just picking a private clinic and ask to be moved there.

People who are arrested on suspicion of having been involved in a financial crime should be explained that the arrest is not done in a vacuum. It is based on reasonable suspicion, that is, sufficient evidence to raise a suspicion that an offence has been committed. These people can escape the rigours of the law by faking an illness and decide they should be moved to a private clinic. Whilst there may be cases where an arrestee genuinely suffers from a serious health condition that necessitates hospitalization, there may also be fake cases.

As matters stand the public would refuse to believe that there is a special bug generated by the FCC that is causing arrestees to fall sick soon after their arrest. When a suspect is under treatment for a long time, this would impact on the investigation. Evidence may disappear. If the suspect has accomplices, they may destroy evidence or get rid of any compromising evidence. This why the authorities, whilst respecting the human rights of suspects, must make sure that the illness is not a ploy to defeat the purpose of the investigation. The individual has the right to request a medical examination and even request a second opinion that should not be denied to him. The police or other authorities who proceed to the arrest have a responsibility for the well-being of the arrestee. However, the latter must not make an abuse of their human rights.

The illness of the suspects arrested by the FCC reminds us of the Pinochet case. When Pinochet went to London in 1998, he was arrested in October. Spain requested his extradition for the offences of torture and crimes against humanity. The legal process took a long time and finally the House of Lords (now the Supreme Court) held that he could be extradited to Spain for the offences of murder, torture, hostage taking and conspiracy. Pinochet the feigned dementia and physical inability to walk. The final decision rested with Jack Straw, the then Home Secretary. Considering the medical reports, Jack Straw allowed Pinochet to go back to Chile. Once in his home country, according to eyewitnesses Pinochet magically recovered. He could walk, did not need a wheelchair and was mentally alert.

Philippe Sands the author of a book on Chagos has published a book on the Pinochet Saga titled 38 Londres Street. In his work Philippe Sands mentions that Jack Straw “regretted his decision to allow Pinochet to return and the fact that he was never tried and convicted in Chile.” Jack Straw stated, “I kept this bloke locked up for sixteen months and that changed the face of… I could have decided he was fit to travel and left it to the Spanish courts. I wish I had but there you go.” It was widely alleged by human rights activists that Augusto Pinochet feigned illness to avoid extradition from the UK to Spain. Jack Straw has since been often criticized for allowing himself to be duped by a cunning old man according to an article in The Guardian in 2006. Lord Hoffman, the British Judge involved in the Pinochet case, expressed the view that Pinochet “conned” Straw into believing he had Alzheimer. The same view has been expressed by many human rights activists.

Investigating authorities and decision makers do not have an easy task, when confronted with an alleged illness of arrestees. All depends on the integrity and honesty of those who treat the sick person.