Office of the Director of Public Prosecutions

‘To No One Will We Sell, To No One Deny or Delay Right or Justice’ Chapter 40,Magna Carta 1215

E-newsletter - Issue 112 April 2021 In this Issue Editorial 3

ODPP Podcast 5

ODPP Video 7

ARTICLES • Tackling corruption in the time of Covid-19 9

• Ecocide – Criminalising the mass-destruction of ecosystems and the environment 14

• ODPP Training Sessions 17

Quick Facts 20

Case Summary 23

Editorial Team Ms. Anusha Rawoah, Ag. Principal State Counsel Ms. Veda Dawoonauth, State Counsel Ms. Neelam Nemchand, Legal Research Officer Ms. Pooja Domun, Legal Research Officer Ms. Genisha Raudhay, Communication/Liaison Officer

The views expressed in the articles are those of the particular authors and should under no account be considered as binding on the Office.

E-newsletter - Issue 112 April 2021 Page 2 Editorial

Dear Readers,

We have the pleasure to bring to you the April issue of our e-newsletter. In this issue, you will listen to a podcast where Mr Satyajit Boolell, SC, Director of Public Prosecutions, brushes a picture of the Constitution of Mauritius. You will also listen on the legal issues pertaining to the offence of ‘issuing cheque without provision.’ In the wake of the numerous cases of domestic violence, in the ODPP Video, our law officer explains this offence as well as the incidence of social media on domestic violence.

Furthermore, the Deputy Director of Public Prosecutions, Mr Rashid Ahmine addresses the issue of ‘corruption’ during the pandemic. ‘Ecocide’, is another topic which will arouse the readers’ interest. It is criminalized human activity that Anusha Rawoah violates the principles of environmental justice. This topic Ag. Principal State Counsel assumes all its importance as debates are being carried out to make ‘Ecocide’ as a fifth crime under the Rome Statute of the International Criminal Court (ICC)

We have also included a review on the training sessions provided by the ODPP to different Ministries in order to better ensure enforcement of the law. In our ‘Quick Facts’ section, we address the various provisions and penalties under the ‘Environment Protection (Control of Single Use Plastic Products) Regulations 2020’. Finally, you will read our Supreme Court judgments summary at page 23.

We wish you a pleasant read and welcome your feedbacks on [email protected].

E-newsletter - Issue 112 April 2021 Page 3 ODPP PODCAST

E-newsletter - Issue 112 April 2021 E-newsletter - Issue 112 Click on following link to listen to the Podcast: April 2021 Page 5 https://youtu.be/NByO24o3op8 ODPP VIDEO

E-newsletter - Issue 112 April 2021 Click on the ‘Play’ icon ODPP VIDEO below to view the video or view video on : ‘Incidence of Social Media on Domestic https://youtu.be/IPZKWy0r Violence’ D68

Pareemala Devi Mauree Principal State Counsel

E-newsletter - Issue 112 April 2021 Page 7 ARTICLES

E-newsletter - Issue 112 April 2021 Tackling Corruption in the Time of Covid-19

It is no secret that the Covid-19 pandemic impacts directly on the health and livelihoods of millions of people around the world. It presents an unprecedented challenge both to public health and the world of work. It is a tragedy to many, particularly those who are involved in the informal economy who cannot earn an income during lockdowns and consequently, cannot feed themselves and their families properly. Governments as well, are struggling with lockdown measures to tackle the spread of the virus whilst at the same time trying to bring economic relief to those in need to alleviate sufferings. With the development of new vaccines, there is a light of hope on the horizon but the virus is still raging in many parts of the world. Currently in India, the number of Covid-19 cases is growing rapidly and its health care system, in many cities, is overwhelmed. The situation is described as a perfect storm hitting the country. Brazil, which has registered the second highest death toll in the world, is still in a chaotic situation today and fears that the worst is still to come.

Sadly, the pandemic does not bring with it only health and medical Mr Rashid Ahmine, risks. While many are enduring difficult times, a few corrupt Deputy Director of Public individuals, in many parts of the world, are misusing this unfortunate Prosecutions occurrence to enrich themselves. During a crisis where lives are at risk and death is a real threat presenting itself on one’s doorway, all governments need to act rapidly (in view of the high demand but limited supplies on the world market) to buy personal protective equipment, medical supplies such as ventilators, and pharmaceuticals to respond to this deadly infection. Public funds are used for this purpose. It involves awarding public contracts and adhering strictly to the rules of public procurement. If we were to follow the normal procedures, it would make it almost impossible to secure all required equipment on time and the reasons therefore for resorting to the process known as the emergency procurement and direct procurement/award methods which are both provided for under the Public Procurement legislations of many jurisdictions in the world including Mauritius.

Emergency Procurement

Emergency procurement is commonly being used by many countries including the UK, France and China during the epidemic. There is no doubt that its use is highly justified during this scourge but it can, however, pose a potential threat to corrupt and fraudulent practices (especially in high risk countries exposed to corruption) because normal competitive procurement methods are not resorted to. Section 21(1) of the Mauritian Public Procurement Act (PPA) allows a public body to purchase goods, services or works from a single supplier without competition from others in cases of extreme urgency. This would include a situation where life could be seriously compromised. Basically it means that there is no open competitive E-newsletter - Issue 112 bidding process which, in some cases, can give rise to an extremely significant risk of abuse. April 2021 Page 9 Tackling Corruption Often now, we hear of low quality equipment and material supplied at exorbitant prices by companies with little or no expertise in the field. in the Time of There is an actual danger of substandard and fake medical equipment Covid-19 and pharmaceutical products entering the market. Public officials of relevant ministries and departments who are involved in the procurement exercise therefore play a key role in overseeing that the whole operation is free from dubious practices.

In this respect, it is important to note that under section 51 of the PPA, a public official who is involved in public procurement proceedings is under a duty to act in the public interest and shall not commit or abet any corrupt or fraudulent practice. Failure so to act renders one liable to a fine not exceeding MUR 50,000 (which I believe is too low) and to penal servitude for a term not exceeding 8 years.

Since the appearance of the Coronavirus in the beginning of 2020, we have witnessed several malpractices in some parts of the globe. Recently, four top Ugandan government officials were arrested after it was reported that they inflated Covid-19 relief food prices which resulted in government losses in excess of $528,000. It was found that they awarded contracts to unqualified suppliers at higher prices and rejected credible suppliers who offered lower prices. Last year, in Zimbabwe, the health Minister was involved in a suspected case of illegally awarding a multi-national-dollar contract for Covid-19 testing kits, drugs and personal protective equipment to a shadowy company. The case was discovered as a result of investigative journalism. These cases show that wrongdoings can happen at a time when everybody is focusing on the pandemic to save lives while less time is devoted to fighting corruption and the carrying out of necessary monitoring. In May 2020, Delia Ferreira, Chair of Transparency International, made the following pertinent remarks:

‘’We are deeply concerned that the need for governments to act quickly to address the Covid-19 crisis is leading to increased corruption risks. Even at this stage, serious corruption scandals that jeopardize lives and livelihoods have been exposed.’’

Oversight and Monitoring

In order to minimize the risks for fraud, waste and abuse, it is essential to urgently introduce additional safeguards for emergency procurement procedures. Those who are involved in procurement should report on their activities on a regularly and timely manner. Existing or new oversight bodies should do real-time external E-newsletter - Issue 112 monitoring. April 2021 Page 10 Many argue that civil society activists can equally contribute their Tackling Corruption part in this process by being an integral part of official oversight bodies. Checks and balances at procurement level must be in the Time of increased. More robust scrutiny together with cost, quantity and Covid-19 capability comparisons are needed. The OECD (The Organization for Economic Co-operation and Development), for example, generally and in normal times advocates for integrity, transparency, stakeholder’s participation and more access to public procurement contracts in order to minimize the risk of corruption in public procurement. In a recent paper (Tackling Covid-19 Contributing to a Global Effort) issued by the Organization, it made several recommendations for Public Procurement Entities and others to address and the most pertinent ones are:

1. To follow national and international rules and guidelines on emergency and Covid-19 related procurement. 2. To use direct awards only to respond to current, urgent and unforeseeable needs. 3. To ensure that the supplier with whom one intends to contract is the only one able to provide the required goods, services and/or works on time. If there are a number of possible alternative suppliers, it is necessary to consider whether there is time to conduct a fast-track competitive procedure. 4. To make use, to the extent possible, of existing market intelligence to inform decisions on emergency purchases. 5. To collect data on emergency procurements with a view to create replicable tools to monitor purchasing in Covid-19 6. To pool forces and conduct joint procurements to attract suppliers, achieve economies of process and limit price spikes through economies of scale and exercise of purchasing power.

These recommendations should be applied, whenever possible, during the current crisis in order to reduce the danger of abuse during the procurement exercise. The pandemic has created a perfect storm for corruption and consequently the level of oversight and monitoring should increase.

Proactive Investigation

More anti-corruption actions and efforts are needed during this period. In normal times, official audits and investigations begin post facto and slowly, but with Covid-19 the circumstances are far from normal. It is crucial that once there is suspicion of fraud and corrupt practices, an investigation must start straightaway. Suspicions can arise in different ways and very often through reports by whistleblowers and the media. Fighting the virus is difficult and complicated because it implies combating the ‘invisible enemy’. Tackling corruption during the crisis is equally challenging but not impossible if we act diligently by taking appropriate measures.

E-newsletter - Issue 112 April 2021 Page 11 There must be real time monitoring, if need be, even well before a Tackling Corruption contract for award is finalized and goods delivered. If law enforcement agencies (LEAs) intervene at too late a stage, funds are in the Time of already transferred and the chance of recovery becomes slight. They should follow the money for subsequent prosecutions and recovery Covid-19 actions. There is a need for LEAs to be more alert and enterprising during this time of the crisis when opportunities for fraud and corruption have substantially increased and public funds can be misused. They should establish inter-agency task forces for appropriate coordination between different agencies (in Mauritius, it would comprise the ODPP, POLICE, ICAC, MRA, FIU), set priorities and concentrate their efforts for maximum impact. Banks and financial institutions should scrutinize even more, and not fewer, suspicious transactions and report, where justified to the FIU for possible investigations. Once detected and proven, urgent sanctions must be taken by the appropriate authorities. If government officials are involved, swift disciplinary actions must be initiated against them before awaiting for the too often slow and leisurely criminal sanctions.

Whistleblowers

The topic of whistleblowing is a subject on its own for discussion but suffice it to say, for the purpose of the present article, that they can play a crucial role in reporting dubious practices at the level of public procurement. A whistleblower is someone, usually an employee, who exposes information or activity within a private, public, or government organization that is deemed illegal, illicit, unsafe, or a waste, fraud, or abuse of taxpayer funds. It is one of the best ways to uncover corruption. Unfortunately, in Mauritius like in many other places in the world, whistleblowers are not sufficiently protected under the law. The Mauritian Prevention of Corruption Act provides only for a slim protection to informers under section 48. The current legislation does not do much to encourage people to denounce corrupt practices and other forms of fraud within an organization or government department. The fear of reprisals is omnipresent.

If one wants to prevent and discourage breach of ethical rules within an organization which would represent a real danger to the public, it is of utmost importance to bring substantive legislations to protect whistleblowers. Protection must be given to those who speak up about wrongdoings. In contrast to Mauritius, the UK for example, enacted a specific law (The Public Interest Disclosure Act 1998) to protect workers who make disclosures in the public interest. This Act also provides for the possibility to claim compensation for victimization (such as dismissal) following such disclosures. The UK government provided further protection to whistleblowers when in 2013, it passed The Enterprise and Regulatory Reform Act, which requires only a general belief on the part of the whistleblower that the disclosure is made in the public interest. The protection is afforded to a ‘’worker’’ but is also extended to a Limited Liability Partner(LLP’s). The legislation protects both, disclosures made internally and externally (Internal and External whistleblowers). E-newsletter - Issue 112 April 2021 Page 12 Tackling Corruption The Media The role of the media is equally crucial in dealing with corruption in the Time of especially during the crisis. They can act as information providers and Covid-19 guarantors of transparency. They inform and educate the public on the impact that corruption can have on their lives. There are many instances where they have already reported cases of corruption related to the purchase of goods which were meant to be used for treating Covid-19 patients. They can go beyond the round-the-clock coronavirus news flow to find the facts and tell the stories that both illuminate the pandemic and the systemic issues underpinning it. They can gather evidence and create resources which can be presented to the public in order to hold those in power to account, and demand more transparency and accountability. Where there is misinformation, investigative journalism can reveal the real facts and on-the-ground realities. In less democratic States, where the rule of law does not operate efficiently, this type of watchdog reporting comprises some risk elements. In April 2020, Serbian reporter Ana Lalic was arrested and detained following the publication of her Covid-19 report.

Conclusion

True it is that when a government is faced with a crisis, urgent actions are needed on its part. However, transparency and accountability remain vital and should not be done away with. It is worth noting that last year, the G 20 adopted a Call to Action on Corruption and Covid- 19, which recognized the importance of transparency and accountability for ensuring a swift and sustainable recovery. Through the rule of law, all authorities and institutions, including anti-corruption authorities mandated to perform appropriate monitoring should play their role fully to prevent and detect abuse and misuse of public funds. Whilst it is agreed that there should be some degree of flexibility of the public procurement rules during time of crisis, it is equally vital that same is accompanied by enhanced supervision and scrutiny. Transparency rules and principles should be strengthened and opacity highly discouraged. Beneficial ownership transparency, where companies are involved, should be a reality. LEAs should be able to make use of relevant laws enacted by Parliament to detect cases where individuals hide behind corporations to launder their proceeds. The media should be allowed to function in an environment conducive to maximum freedom for the public good. If we function within normal democratic norms allowing for civic space, opportunity for wrongdoings will be greatly reduced and the trust of the people which is so important in any democracy will be won.

We should focus on the pandemic to save lives, but remain conscious and alert that others are willing to involve in immoral and corrupt practices to earn dirty money to the prejudice of tax payers’ money. We should, therefore, devote our efforts on this side as well. There will come a time when we will be immune from the virus and it will be gone forever, but the economic impact of corruption, especially during a pandemic, would be exceptionally severe and if we do not act urgently and firmly, we will certainly feel its effects in many years to come. E-newsletter - Issue 112 April 2021 Page 13 Ecocide - Criminalising the mass-destruction of ecosystems and the environment

Four thousand years ago, the Harappan civilisation thrived in the Indus Valley. By 1800 BC, the entire civilisation, its people, culture, language and art completely vanished. Traces of its existence only resurfaced in the 1920s following British excavations in Harappa and Mohenjo-Daro. The precise reason for the mysterious disappearance of the Harrapans still eludes archaeologists. However, recent scientific analysis of soil sediments points to climate change as a prime culprit.1 The Harrapans’ unfortunate experience with climate, nature or ecosystems2 is not unique. Throughout history, humanity paid the heavy price when no longer in healthy symbiosis with ecosystems. Up till now no truly effective and meaningful mechanism has been put in place to protect ecosystems. This is why current efforts to create an international crime to protect ecosystems are welcomed.

What is Ecocide?

At the time of writing of this article, a panel of eminent jurists are working on a draft definition for ecocide. Their intention is to propose an amendment to the Rome Statute (the statute governing the International Criminal Court).3 If Mr Jagganaden Muneesamy they are successful, ecocide will become the fifth crime against the peace, Principal State Counsel security and well-being of the world in addition to genocide, crimes against humanity, war crimes and crime of aggression. As of yet and pending the adoption of the proposal, the precise definition and criminal elements of ecocide are not known.

The earliest reference to the term ecocide dates to 1970 when Professor Arthur W. Galston used it at the “Conference on War and National Responsibility” in Washington. A couple of years later, at a United Nations Environment Conference, the then Swedish Prime Minister Olof Palme condemned the use of Agent Orange in Vietnam. Agent Orange had turned “vast tracks of land barren.”4 There have since been various persuasive definitions of ecocide. All focus on the harming of the environment on a massive scale or seek to impose some kind of international obligation to provide for a healthy environment.5 The general idea is a crime targeting mass damage and destruction of ecosystems or harm to nature which is widespread, severe or systematic.6

1Why did an entire civilisation vanish?,https://www.bbc.com/reel/video/p077x0m7/why- did-an-entire-civilisation-vanish- 2For the purpose of this article, the terms climate, nature, environment or ecosystems are used loosely and interchangeably. 3Is it time for “ecocide” to become an international crime?, https://www.economist.com/international/2021/02/28/is-it-time-for-ecocide-to-become-an- international-crime, 28 April 2021 4Ibid no.3 5Protecting the planet: a proposal for a law of ecocide, P. Higgins, D. Short & N. South, Crime Law Soc Change, Vol 59, No.1, 2013. 6Definition of Ecocide, https://www.stopecocide.earth/what-is-ecocide E-newsletter - Issue 112 April 2021 Page 14 Polly Higgins, a British lawyer who campaigned to make ecocide a crime, proposed a definition of the crime to the United Nations Law Commission in Ecocide – 2010 which included the “extensive destruction, damage to or loss to criminalising the ecosystem(s) of a given territory.” mass-destruction of Who are the criminals – the Ecocidaires? ecosystems and the The crime will not target the one-off or small-scale environmental delinquents. Therefore, the person who disposes of his withered fridge into a river or the environment driver who occasionally sows the motorway with plastic bottles should not fear the long reaching arm of the International Criminal Court. Such persons will be aptly prosecuted under domestic criminal law. Instead, the international crime of ecocide will target those persons harming nature on a mass, widespread or systematic scale. To understand the scope of the crime, an analogy can be made to crimes against humanity where (i) widespread refers to the large- scale nature of an attack and the number of victims and (ii) systematic refers to the degree of organisation of acts of violence and the improbability of its random occurrence. Thus, at least in theory, the crime of ecocide could concern large-scale ecological emergencies such as oil spills, plastic pollution, deforestation, land or water contamination, air pollution, radioactive contamination, industrial emissions or over-fishing/hunting. In practice, those prosecuted will undoubtedly be those most responsible for these crimes. For instance, these could include head of states as well as head of corporations responsible for the formulation and implementation of policies harming the environment on a mass scale and contributing to climate and ecological emergencies.

Crimes against the environment already exist to some extent under the Rome Statute. As an example, in international armed conflicts, Article 8(2)(b)(iv) of the Rome Statute penalises “the intentional launching of an attack in the knowledge that such attack will cause widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” This crime however depends on the existence of an international armed conflict. It would not apply during peace time. Alternatively, the destruction of the environment could become a crime against humanity depending on its effects on a group of people. Hence, the displacement of native tribes of the Amazon rainforest due to heavy deforestation could be a form of forced displacement (a crime against humanity in breach of Article 7(1)(d) of the Rome Statute). All of these crimes require causing harm to humans i.e., causing harm to the environment alone will not suffice. In that aspect, depending on its final definition, ecocide might stand out because ecosystems, nature or the environment itself will be the victim.

E-newsletter - Issue 112 April 2021 Page 15 There is much still to be discussed when it comes to ecocide. As mentioned above, the final wording will only be known when it is adopted into the Rome Ecocide – Statute. As of yet, the precise elements of the crime are unknown and can take criminalising the various forms. Will intention be a requisite element, or will the crime be one of strict liability? Will the Rome Statute also be amended to allow for the mass-destruction of prosecution of national or international legal entities? These questions can only ecosystems and the be answered when the final wording is decided upon. environment Conclusion Now more than ever, the international community understands the irreparable damage that can be caused to ecosystems. Directly or indirectly harming nature has real and dire consequences for not just current generations but future ones as well. Moreover, the damage caused to the ecosystem of a country might immediately affect neighbouring states, but its harmful effects can also extend to the four corners of the world. As inhabitants of a small island, this is something we must be particularly alert to. Last week’s diluvian rainfall is a terrible reminder of our vulnerability. In fine, as with all crimes, ecocide will be no panacea but will still act as an important deterrent. Contrary to domestic crimes, ecocide will apply transnationally. In that sense, ecocide will truly be a crime of global application and implication – an international crime.

E-newsletter - Issue 112 April 2021 Page 16 ODPP Training Sessions

1. Overview of Children’s Bill at the National Educational Counselling Service

On December 8, 2020, I conducted a half-day training at the National Educational and Counselling Service in Beau Bassin for the benefit of educational psychologists and social workers. I gave an overview of the new Children’s Bill and related laws.

I focused the talk on the new Children's Bill, Children Court Bill and Child Sex Offender Register Bill and geared it to the new role of educational psychologists in schools and social workers with the coming of the new laws.

Their main concern was how the new laws would affect the way they would be conducting their work henceforth. The definition of “parent” as contained in the new law was raised. The fact that it now included somebody who is not a biological parent created a new hurdle in their work. They wanted to know in which circumstances the consent of parents was needed even for a person Ms Pareemala Devi Mauree who is above 18 and whether the new laws would make any provision for that, Principal State Counsel explaining that, in the school environment, it is usually the case that the parents’ consent is sought for every procedure, even if the student has reached above 18.

Reference was also made to section 37 of the Education Act- the obligation to send a child to school until he is 16 years old. As absenteeism in schools is a big issue, the big question is who should report the non-compliance of parents to sending the children to school until they are 16. Social workers are of the view that this duty might fall upon them. Absenteeism is a major concern in schools, as is the issue of bullying.

Another important issue is which party should give their consent when they are referred psychological reports to do by the school; is it the biological parent, the one who has legal custody or the one with whom the child is actually living? This is a big issue for them as sometimes there is conflict as to consent between the parties and they are in a deadlock situation. The offence of causing, inciting or allowing a child to be sexually abused dealt in section 19 of the Children’s Bill and the derogations as to consent of the child raised a lot of concern and reservations among the individuals present at the training.

It was a very rich, interactive and interesting talk. I received a very warm welcome and a very good response during the entire talk.

2. Training on Exhibits for Occupational Safety and Health Officers

On February 17, 2021, I conducted a training in relation to the securing of exhibits and the preservation of their authenticity during the whole criminal E-newsletter - Issue 112 process for the Occupational Safety and Health Department (OSHA). The April 2021 Page 17 audience consisted of some 50 Occupational Health and Safety Officers ODPP Training personnel from different sections ranging from construction, enforcement, Sessions accident, prosecution and many more. The training focused on best practices to adopt at the time of securing exhibits and preserving them for use in an eventual prosecution. Most of the exhibits concerned in such cases were bulky machinery in factories or were in relation to accidents at work. In such cases, the exhibits would not be brought to the Court and a booklet of photographs would be produced. Many times, such photographs would be taken from the personal mobile phone of the enquiring officers as they have only one camera for the whole office.

It came to light that the Office had not, up to now, adopted a standard established procedure for the sealing of exhibits which are of a relatively small size such as pairs of gloves, scissors, work apparel, apparatus, etc. which need to be secured in the course of an investigation. Which type of packaging would be used to produce an exhibit in Court has also not yet been established. A practice has developed of taking photographs of even small objects which could be secured which is not proper procedure if the original exists. This is also because the OSHA department does not posses a proper exhibit room and a proper protocol in terms of securing and sealing of such exhibits. Hence to circumvent this problem, officers therefore keep photos of all exhibits needed in the file even those of objects which are of a reasonable size and which can be secured. The officers also have no training on how to secure and analyse images from a CCTV footage which they need to use for an eventual prosecution. The need to inform the accused party of all pieces of evidence secured during the enquiry and that this should transpire from statements taken from the accused parties, was impressed upon them.

It was a very interactive session and I received a very good response to this training. It is hoped that the above would give an idea of some of the pressing issues which need to be addressed urgently by the OSHA department. These could give rise to legal objections in Court in relation to reliability, authenticity of exhibits or non production of available exhibits.

Training - Occupational Safety and Health Department E-newsletter - Issue 112 April 2021 Page 18 QUICK FACTS

E-newsletter - Issue 112 April 2021 Quick Facts

Environment Protection (Control of Single Use Plastic Products) Regulations 2020

Regulation 4: No person shall import for home consumption, manufacture, possess, sell, supply or use any non-biodegradable single use plastic product specified in Part I of the Second Schedule.

Source: www.blueandgreentomorrow.com

16. Where any person - 16. (b) possesses or uses for the purpose of trade, sells or supplies a non- 16. (a) possesses or uses, other than for the biodegradable single use plastic product purpose of trade, a non-biodegradable specified in the Second Schedule, he single use plastic product specified in the shall commit an offence and shall— Second Schedule, he shall commit an offence and shall — (i) On 1st Conviction: Fine not exceeding Rs. 20, 00; and st (i) On 1 conviction: Fine not exceeding Rs. (ii) On 2nd or subsequent conviction: 2,000; and Fine not exceeding Rs. 100, 000 and nd (ii) On 2 or subsequent conviction: Fine imprisonment for a term not not exceeding Rs. 5, 000; exceeding 3 months;

16. (c) imports a non-biodegradable single use plastic product specified in the Second 16. (d) manufactures a non- Schedule, he shall commit an offence and biodegradable single use plastic product shall – specified in the Second Schedule, he shall commit an offence and shall — (i) On 1st conviction, be liable to a fine not exceeding Rs. 50, 000; and (a) On 1st conviction: Fine not exceeding (ii) On 2nd or subsequent conviction, be Rs. 100, 000; and liable to a fine not exceeding Rs. 100, (b) On 2nd or subsequent conviction: Fine 000 and imprisonment for a term not not exceeding Rs. 250, 000 and exceeding 2 years; imprisonment for a term not exceeding 2 years. E-newsletter - Issue 112 April 2021 Page 20 Part 1 of the Second Schedule List of non-biodegradable single use plastic products that are prohibited under Regulation 4 [Effective as from 15 January 2021]

• Plastic cutlery (forks, knives, spoons, chopsticks) • Plastic plate • Plastic cup • Plastic bowl • Plastic tray Source: www.plasticstoday.com

• Plastic straw, including Source: www.alamy.com sealed plastic straw forming an integral part of the packaging of another product • Plastic beverage stirrer • Plastic hinged container • Plastic lid for single-use plastic products • Receptacles of any shape, with or without lid, used to contain food which is intended for immediate consumption, either on the spot or take away and supplied by a food service business.

Regulation 4 applies to Source: www.brenmarco.com products specified in Part II of the Second Schedule. It is effective as from 15th April 2021. This concerns :  Plastic trays;  Plastic hinged container and  Sealed plastic straw forming an integral part

of the packaging of Source: www.sequoitmedia.com another product. Pooja Domun Legal Research Officer E-newsletter - Issue 112 April 2021 Page 21 SUPREME COURT JUDGMENTS SUMMARY

E-newsletter - Issue 112 April 2021 SUMMARY OF SUPREME The only ground challenging conviction was to the COURT effect that the prosecution of the appellant amounted JUDGMENTS: to an abuse of process which inevitably led to an unfair trial in as much as the Police had promised April 2021 him immunity during enquiry.

LUCHMUN S. v. THE STATE 2021 SCJ 70 This ground was deemed frivolous based on the appellant’s unequivocal guilty plea on a reduced By Hon. Chief Justice Mr. A.A. Caunhye, Hon. charge, his being represented by counsel from the Senior Puisne Judge Mrs. B. R. Mungly-Gulbul outset of the Police enquiry as well as during the and By Hon. Judge Mrs. C. Green-Jokhoo whole of the court proceedings, his full confession Appeal outside delay – Compelling circumstances which was never challenged and the issue of – Immunity – Prerogative of the DPP – Sentence – immunity which was not raised at trial stage. Richly deserved and proportionate to the offence Moreover, the evidence revealed that the appellant charged knew that it was only the Director of Public This is an appeal by a Police Constable, the Prosecutions (“DPP”) who had the power to grant an appellant, who was prosecuted before the Supreme accused immunity from prosecution and that the Court for having wilfully, unlawfully and knowingly DPP had never granted any immunity to him. procured the importation of 7,844.1 grams of heroin in Hence, the Court found no merit in the argument breach of sections 30(1)(b)(ii) and 47(2)(5)(a) of the that the conviction could not stand in view of Dangerous Drugs Act. immunity promises which led to an unfair trial.

The appellant pleaded guilty to the charge after the As for the sentence being manifestly harsh and averment of drug trafficking was removed and he was excessive, the Court of Appeal, considering the convicted for the offence charged and sentenced to mitigating and aggravating circumstances of the 15 years penal servitude and a fine of Rs. 100,000. case, concluded that a sentence of 15 years penal The appeal was against both the conviction and servitude together with the fine of Rs, 100,000 was sentence. fully justified and richly deserved and did not offend the principle of proportionality. However, prior to dealing with the merits, the Court of Criminal Appeal had to consider whether to entertain The appeal was thus dismissed with costs. the present appeal which was lodged outside the statutory delay, namely by one day. In view of the compelling personal circumstances of the appellant which made it practically impossible for him to retain the services of counsel and fulfil the procedural formalities for the timely lodging of his appeal whilst he was in detention at Melrose Prison, the Court allowed the appeal to proceed.

E-newsletter - Issue 112 April 2021 Page 23 DOWLAT v THE AG. SENIOR MAGISTRATE OF THE BAIL & REMAND COURT 2021 SCJ 85 As for the risks of absconding and re-offending, the Court held that both grounds were relevant as By Hon. Judge Mrs. P. D. R. Goordyal-Chittoo and follows: Hon. Judge Mrs. C. Green-Jokhoo a) The fact that the applicant was a skipper and Bail review – Assessment of nature of evidence – was definitely in a position to operate a boat, the Section 4(2) of the Bail Act – Risk assessment – potential risk of flight by the applicant given the Pre-trial detention – Delay – Section 5 of the heavy custodial sentence that the applicant may Constitution likely be visited with, could not be discarded. The present application concerns a review of the Hence, the risk of absconding. respondent’s decision setting aside the applicant’s b) In upholding the ground of re-offending, the motion to be released on bail pending a formal charge Court referred to the case of Clooth v Belgium to be lodged against him. The application was 1991 ECHR 71 where it was stated that the resisted by the co-respondents (DPP and CP) whilst danger of a serious offence being committed by the respondent was abiding by the decision of the the applicant whilst on bail should be a plausible court. one and to the case of Deelchand v The DPP & The applicant contended that the nature of evidence Ors 2005 SCJ 215 which laid down that the was not considered by the respondent as required nature of the offence as well as the expected under section 4(2)(d) of the Bail Act which provides sentence in case of conviction are relevant that in considering whether or not bail should be considerations whilst assessing the seriousness refused on any ground under sub-section (1), the of the risk that a detainee may re-offend. The Court shall decide the matter by weighing the learned Magistrate took into account the fact interests of society against the right of the applicant to that the applicant had admitted being a broker his liberty and the prejudice he is likely to suffer if he (drug business) and other circumstances to is detained in custody whilst taking into account conclude that there was a risk of re-offending, relevant consideration including, inter alia, the nature which was confirmed on review. of the evidence available with regard to the offence However, the Court went on to reiterate the well- with which the defendant is charged. established principle that personal liberty as The Court, on review, concluded that indeed no guaranteed under the Constitution is sacrosanct and consideration of the nature of the evidence was made same can only be taken away as per the law. This by the respondent as required under the law, albeit principle implies that the right to liberty cannot be section 4(2) of the Bail Act was mentioned in the the exception and, in the circumstances, the ruling. Moreover, given that the learned Magistrate detention of a suspect cannot be unduly prolonged who heard the present application was no longer in in the absence of any compelling reason. Therefore, the judiciary, the Court proceeded to make an in any criminal matter, a balancing exercise has to assessment of the nature of the evidence on record be carried out between the liberty of the suspect and concluded that there was enough material pending trial viewed in the context of the supporting the applicant’s involvement in the drug presumption of innocence and the need to ensure transaction. that society and the administration of justice are E-newsletter - Issue 112 April 2021 Page 24 reasonably protected against serious risks which applicant’s confession to the police, his previous might materialise, if the suspect is allowed to remain convictions and the fact that the applicant’s at large (as per Labonne v The DPP & Anor 2005 financial means had not been established. SCJ 38). Moreover, according to the court record, the evidence led by the police in relation to the True it is that the respondent concluded that the circumstances in which the offence was committed imposition of severe conditions would not effectively had remained unchallenged where the applicant reduce the risks involved and thus refused to grant was arrested by ADSU officers after he had sold 9 bail to the applicant. Nonetheless, since the applicant cellophane parcels of suspected cannabis worth had been in custody since the beginning of June Rs 6,000 to undercover police. 2019, the Court held that it would be in line with section 5 of the Constitution to order that the Reference was made to the case of Deelchand v applicant be released on bail on the conditions set by The Director of Public Prosecutions and Ors the Court itself, should a formal charge not be 2005 SCJ 215 where it was held that in assessing preferred against him at latest by 5th of June 2021. the seriousness of the risk that a detainee may reoffend, the criminal record of the applicant is a relevant and important consideration, amongst LAFLEUR E. F. v THE ACTING DISTRICT others. Thus, the learned Magistrate was right to MAGISTRATE OF THE BAIL AND REMAND consider the previous convictions of the applicant COURT & ANOR 2021 SCJ 89 which dated back to 2011 and 2012.

By Hon. Judge Ms. M. Naidoo and Hon. Judge Thereafter, the Learned Magistrate carried out the Mrs. C. Green-Jokhoo relevant risk assessment exercise and properly Bail review – Risk of re-offending – Previous exercised his discretion in concluding that stringent convictions being a relevant and important conditions would not minimise the risks identified consideration – Imposition of conditions – Ruling nor render them negligible. upheld In the circumstances, the reviewing Court held that This application is a review of the respondent’s the decision of the learned Magistrate refusing the decision refusing bail to the applicant. The sole applicant bail could not be faulted. Nevertheless, ground of objection was the risk of re-offending. the Court urged the authorities to lodge the formal charge against the applicant at the earliest. The review essentially challenged the learned Magistrate’s ruling as being flawed in as much as he The application was thus set aside with costs. failed to carry out a proper balancing test after having found that the sole ground of objection i.e. risk of “Train your mind to see something good in reoffending, was substantiated. everything” The Court, on review, upheld the ruling, and stated that the learned Magistrate rightly considered the –Buddha nature of the evidence on record namely, the

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