‘Juge d’instruction’ system : Will it simplify or complicate matters?

In its latest report, the Law Reform Commission (LRC) highlights the revision of several laws and the creation of legal frameworks for a fairer and more transparent judicial system. The LRC relied on the recommendations of the Attorney General’s Office. One of these recommendations concerns the creation of the post of ‘juge d’instruction’. This debate analyses how far this system will ensure greater transparency and professionalism in the conduct of criminal investigations.

‘Juge d’instruction’ is found in the French legal system whereby the magistrate conducts the investigative hearing that precedes a criminal trial. In this hearing, the major evidence is gathered and presented, and witnesses are heard and depositions taken. If the ‘juge d’instruction’ (Examining Magistrate in the British system) is not convinced that there is sufficient evidence of guilt to warrant a trial at the end of the proceedings, no trial will occur.

Erickson Mooneapillay : “Such a system is very appealing”

Lawyer Erickson Mooneapillay argues that the concept of ‘juge d’instruction’ is from the French legal system and in essence the role of the ‘juge’ in such cases is to review the evidence in specific cases and also to record the testimony of all parties involved in a case before deciding to formally charge the accused party or not. He believes that such a method is theoretically sound in that it brings in the expert knowledge of the ‘juge’ in the initial police investigation. “Such a system is very appealing in that it can reduce the possibility of police brutality and forced confessions since the statement is recorded in front of the ‘juge’. In addition, one can argue that when the ‘juge’ is overseeing the investigation, the temptation of corruption and abuse of power is less.”

Such a system is very appealing in that it can reduce the possibility of police brutality and forced confessions since the statement is recorded in front of the ‘juge’."

However, he highlights that in practice this system has not stopped torture by police, as evidenced by cases such as l’affaire Outreau in France where allegations of police brutality was rife despite confessions recorded in front of the ‘juge d’instruction’. “There is always the possibility of excess familiarity between the ‘juge’ and the investigators and familiarity breeds complacency. Our criminal justice system is English-based just as our Constitution and for this reason, I foresee that the system of ‘juge d’instruction’ can breed constitutional challenges. Since our criminal justice system is adversarial, the rule of law is maintained by the interaction between the prosecution and the defense.”

For the lawyer, our judiciary is separate from the executive and as such stands as an arbitrator between the citizen and the State. “It follows that the judiciary cannot instruct the police on how to carry out an investigation. Therefore, in the absence of major constitutional amendments, the concept of ‘juge d’instruction’ is a forlorn idealism. Having said that, many of the objectives in implementing the concept of ‘juge d’instruction’ can be achieved by reforming and training the police, by introducing the Police and Criminal Evidence Act (PACE) and by introducing an Independent Police Complaint Commission (IPCC),” he concludes.

Jaylall Boojhawon : “We are not ready for this system”

Police Inspector Jaylall Boojhawon, who is also president of Police Officers Solidarity Union (POSU) and an officer with a long experience in Mauritius, says that we use the adversarial system of trial and we are not ready to apply the “juge d’instruction” for various reasons. “You will notice that a majority of barristers here will never agree with such a system for its different inconveniences and for other obvious reasons. Currently, a case is referred for trial only after it had been recommended by the DPP.  We already have the “Preliminary Inquiry” and “Judicial Inquiry”, instituted by the DPP whenever a death has occurred. If this system of “juge d’instruction” was really reliable, why then did previous governments not implement it? At present, there is a great debate in France to get rid of that system due to its different inconveniences, especially after the case of “Outreau,” where the six accused, who were charged with various sexual abuses on minors, were declared innocent.”

A great debate in France to get rid of that system."

He reveals that in Mauritius the challenge is whether all our Magistrates do have the required experience to conduct such an important investigation. “Furthermore, our police are not ready to work under such a system for various reasons. When a “juge d’instruction” will be sitting, the whole ‘donkey work’ to bring in witnesses and evidence will rest largely on the shoulders of our police officers. The question here is whether the police will be able to bring all necessary evidence and witness, especially in such a small span of time. Moreover, our police lack requisite training in the related fields, as well as modern equipment, technology and expertise, compared to France. We depend on other authorities to have our supplementary evidence, reports or documents but it is unfortunate that we receive those months later. How could we help the “juge” then? It is true that the “juge d’instruction” will have certain powers but it will still need the police for certain actions, like for arrests. In our Constitution, we have an essential principle called “Separation of Powers,” meaning that the Judiciary and the Police need to be separate from each other. Is the “juge d’instruction” not against that principle? Mauritius is therefore not ready to implement aforesaid system.”