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Detainees to be denied access to legal assistance for first 36 hours To re-enforce the repressive measures against drug use and drug dealing, the present MSM-MMM government decided to amend the "Dangerous Drugs Act". The amendments proposed were, however, clearly anti-constitutional, so the MSM-MMM decided to amend the "Constitution of Mauritius" at the same time. Which they did. Taken together, these amendments represent a serious curtailment of the fundamental rights that define "our democratic society".Already in the recent past, another government headed by the MSM party had voted in capital punishment for the offence of drug-trafficking: this has fortunately been abolished under pressure from Human Rights organizations in the country and abroad. However, this generally repressive attitude of the state and the Police Force towards drug users was directly responsible for the death in detention of a very popular Mauritian artist, Kaya, in February, 1999, and this led directly to widespread rioting and further deaths by police firing at unarmed protestors. There is clearly a risk of a spiral of repression and revolt and further repression. Section 31 of "The Dangerous Drugs Act" voted in December, 2000 reads thus: 31. Detention for drug dealing: Where any person is arrested under reasonable suspicion of having committed any offence under section 30, 33, 35, 36, 38 or 39, a police officer not below the rank of superintendent of police may, subject to this section, direct that the person arrested be detained in police custody for a period not exceeding 36 hours from his arrest, without having access to any person other than a police officer not below the rank of Inspector or a Government Medical Officer and, in any such case, that person shall be detained accordingly." This 36-hour incommunicado detention applies to persons "arrested under reasonable suspicion of having committed" any of the following offences, some of which are quite broad and vague: drug trafficking, importing, cultivating, possessing precursors/materials/equipment, offering or selling for personal consumption, allowing premises to be used for drug use or land for cultivation, incitement to unlawful drug use, money laundering related to drug trade. The 36-hour incommunicado detention can only be directed by a Police Officer not below the rank of superintendent of Police, and is subject to the Police officers having "reasonable grounds to believe that giving access to any person other than the police officer not below the rank of Inspector of the Government Medical Officer" may lead to (a) interference with evidence or with a witness, (b) alerting other suspects, and (c) hindering recovery of the proceeds from drug dealing. This is interesting because many police officers believe that the 36 hour period for is extracting confessions. However, the detention is equally subject to the keeping of a thorough "custody record" and a continuous video recording of the whole 36-hour period. The two important sections of the Constitution relating to (a) "Protection of right to personal liberty" (Section 5) and (b) "Provisions to secure protection of law" (section 10), which guaranteed a detainee’s access to a legal representative, were, thus, also amended so as to accommodate the 36-hour incommunicado detention under the Dangerous Drugs Act 2000. It must be pointed out that arrests for drug offences and 36-hour incommunicado detentions can be made without the police seeking a warrant from a magistrate, but simply "upon reasonable suspicion" as assessed by a police officer. This "reasonable suspicion" could even take the form of a frivolous "allegation" or an "interested" allegation, made by somebody found in possession of an illegal substance. Proclamation of Amendments Although the "Dangerous Drugs Act 2000" and the two amendments to the Constitution of Mauritius received the "assent" of the President of the Republic on 29th December, 2000, they have, as yet, not been proclaimed, and are thus hanging in suspense; presumably because the practical requirements like continuous video recording have not been organized yet. But the very fact that these amendments that represent a serious threat to the fundamental rights of citizens, have been voted in the National Assembly, has already started to have a very direct and very negative effect on life in Mauritius. The police have recently proceeded with a number of arrests of "suspects" and even "witnesses" in different kinds of non-drug cases, and subjected them to severe and sometimes even physically violent interrogations, including torture, in remote police stations and other premises far from the place of arrest or police station the police are supposed to be working at, without the detainee being given the opportunity to contact his or her lawyer. This has meant that people have just "disappeared" from the sight of their families. The police is in practice enforcing the "incommunicado" derogation, not just for cases of suspected drug dealing (the amendments for which have not even, in any case, been proclaimed yet), but in general, for any offense they choose. The excuse publicly given by some police officers is that the presence of lawyers at the time of interrogation makes it more difficult to obtain "confessions": some police officers have even publicly declared that a certain amount of physical and psychological "pressure" is necessary to make some people confess Under these conditions the detainee’s right to silence, enshrined in the Constitution, is also being seriously undermined.
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