Provisional Charges: Towards the End of a Toxic Practice
On October 7, 2025, during Prime Minister’s Question Time (PMQT), Navin Ramgoolam announced a significant reform: the impending abolition of provisional charges. According to him, Attorney General Gavin Glover is working on drafting a bill to establish the Constitutional Review Commission. This judicial mechanism, still controversial, is already generating strong reactions. Lawyer Rubesh Doomun and former Attorney General Yatin Varma share their analyses and perspectives on the implications of this reform for the Mauritian judicial system.
The Origin Explained by Lawyer Rubesh Doomun...
Provisional charges in Mauritius are a procedure that dates back to the British colonial era, initially arising from an abolished ordinance from 1852. This procedure plays a fundamental role by allowing an individual to be brought before a court even when formal evidence is lacking.
Historically, when the police had a "reasonable suspicion" but lacked evidence for an official charge, they still needed a way to bring the person before a magistrate to obtain either a provisional detention order or to keep the investigation open.
However, neither the legislation nor the Constitution precisely defines the concept of "provisional charges". In reality, this procedure has never been established by law in Mauritius; it originated from police and judicial practices implemented for practical reasons, not under a legal provision.
This practice gradually emerged from colonial police and magistrate procedures, influenced by both British and French systems. Over the decades, it became institutionalized: the police file a provisional charge before a magistrate, the person is then brought before the court, and subsequently either placed in provisional detention or released on bail.
Thus, despite the lack of legislative foundation, provisional charges have remained firmly entrenched in the Mauritian judicial system.
Lawyer Doomun: "A Mixed Regime with Strict Procedural Solutions"
According to Lawyer Rubesh Doomun, provisional charges in Mauritius represent an atypical procedure. He cites several countries where this system operates differently. He argues that if this practice were to be abolished, "a mixed regime should be adopted, accompanied by strict procedural reforms to prevent our courts from undermining justice instead of serving it," referring to the case of Manraj v Icac.
What Other Countries Do...
Lawyer Doomun reiterates that in many countries, mechanisms for provisional detention or pre-charge arrests exist, but they are strictly regulated by law and subject to tight timelines, which differs from the practice in Mauritius.
Do Other Countries Have This System?
Lawyer Rubesh Doomun emphasizes that the practice of provisional charges as applied in Mauritius is atypical and, according to various analyses, nearly unique. It persists as both a judicial and police procedure.
He explains that many countries have mechanisms for provisional detention or "pre-charge arrest," but these are generally governed by strict timelines and rigorous judicial oversight, which contrasts with the Mauritian practice.
In Mauritius, he reminds us, it is crucial to understand the legal and constitutional rights that apply when it comes to arrest. He specifically refers to Article 5(1) of the Constitution, which states: "No person shall be deprived of his personal liberty save as may be authorized by law." Articles 5(2) and 5(3)(b) further stipulate that anyone arrested or detained must be informed as soon as possible of the reasons for their arrest or detention and presented before a court.
Lawyer Doomun clarifies that the police's arrest powers derive from Article 13F of the Police Act, which states that a police officer may arrest a person if he has reason to suspect that the individual has committed or is about to commit an offense endangering public safety or order.
"According to our law, a person arrested by the police must be brought before a court within 48 hours," emphasizes Lawyer Doomun. The legal guarantees provided are practically respected by the filing of a 'provisional information'.
"No provisional charge can be maintained unless it meets the legal requirements. The first condition is that the police must demonstrate that the suspicions that motivated the arrest were reasonable," explains the lawyer.
Former Attorney General Yatin Varma: "This Must Be Seen as an Essential Modernization"
Former Attorney General Yatin Varma does not mince words. In his view, the end of provisional charges does not represent a weakening of the judicial system. On the contrary, he sees it as "an essential modernization, where justice is exercised rigorously, under judicial oversight, and with respect for human dignity." In this view, he advocates for the establishment of a clear and regulated mechanism for judicial oversight.
According to Lawyer Yatin Varma, provisional charges are a legal aberration, a remnant of an archaic system with no clear legal basis. "In practice, it violates the presumption of innocence and often transforms a procedural tool into an instrument of intimidation. In several cases, individuals have spent weeks, even months, in detention before any formal charges were brought. This system has no place in a modern rule of law," he emphasizes.
What Should Replace This System?
For the former Attorney General, the abolition must be accompanied by the establishment of a direct charging mechanism, only after a complete investigation has been conducted and the case has been reviewed by the Director of Public Prosecutions (DPP).
He proposes that provisional charges be replaced by a clear and regulated mechanism for judicial oversight. "When a person is under investigation, they should not be able to evade justice either. A system of judicial oversight, under the supervision of a magistrate, would ensure a fair balance: the person remains free during the investigation but is subject to certain obligations, such as surrendering their passport, ensuring they do not leave the country," argues Lawyer Varma.
While adding that this model exists in several modern jurisdictions and protects both individual freedom and the effectiveness of investigations. It is this balanced approach that should be adopted in Mauritius to modernize the criminal procedure.
Such a system, he claims, combining a complete investigation, DPP oversight, and judicial control, would guarantee both the protection of fundamental rights and the efficiency of criminal investigations.
The Consequences of This Reform
The catch, former Attorney General notes, is that for those already under the system of provisional charges, a clear transitional provision must be established. Cases where the investigation is concluded must be immediately submitted to the DPP, while those with insufficient evidence should be dropped, with the DPP's authorization.
"The abolition of provisional charges will not automatically nullify existing cases, but it will require the DPP's office and the police to quickly review each case," he specifies.
According to Lawyer Varma, the magistrate could then play a supervisory role, ensuring that each case is treated fairly and that no one is left in uncertainty beyond a reasonable time.
This reform, he argues, would help unclog the courts while restoring public confidence in justice.
Ultimately, concludes Lawyer Varma, "the disappearance of provisional charges should not be seen as a weakening of the system, but as an essential modernization," where "justice acts rigorously, under judicial oversight, and with respect for human dignity."