th June 2013 17 Presented by Francis CHANG-SAM The Role of the - - PDF document

SYM POSIUM CELEBRATING 20 YEARS OF THE CONSTITUTION OF THE THIRD REPUBLIC OF SEYCHELLES 17

th June 2013

Presented by Francis CHANG-SAM “ The Role of the Judiciary in Constitutional Governance of Seychelles from 1993 to 2013 - An Evaluation of the Performance of the Judiciary and a Prognostic for the Future”

• 1. OF THE SPEAKER

Please let me at the outset state that, although I am billed as “Chair

• f the Constitutional Review Committee”, unlike the preceding two

speakers who are current holders of their office, I am functus officio. It is common knowledge that my appointment as Chairman of the Constitutional Review Committee was ad hoc and came to an end soon after the completion and presentation of the Report of the Committee (the “Report”) to the President of the Republic on 21

st

December 2009. I appear before you therefore and speak not as Chairman of the Constitutional Review Committee but in my private capacity as erstwhile Chairman of the Constitutional Review Committee and, of course, not on behalf of the Constitutional Review Committee. The views expressed in the course of this presentation are my own. This said, I wish to confirm my entire agreement with the contents of the Report. I hope that this short presentation is seen not as

detracting from, but as supplementary to, the proposals in the Report relating to Chapter VIII (Judiciary) of our Constitution. I wish to add also that this presentation is not aimed at pointing finger or casting accusations or aspersions at any particular person. It is my modest contribution both as a citizen of this country and a professional who earns his living from the “justice game”, to borrow the title of a book by the well-known constitutional lawyer, Geoffrey Robertson, to the debate on our Constitution generally and, more particularly, the Judiciary.

• 2. 20TH ANNIVERSARY

We are celebrating 20 years since we, the people of Seychelles, freely chose to endow ourselves with the present Constitution. Twenty years is not a negligible period. In terms of an individual, at the age of twenty an individual has already become a full-fledged

• citizen. Society expects and demands that an individual who is of age

lives up to his/ her responsibilities to the full. If we require that an individual who is eighteen be treated equally to another individual of any age above eighteen, is there sufficient reason why we should not expect, nay demand, that we and the various institutions and bodies established under the Constitution should after twenty years be operating as any other established democracies as contemplated by the people of Seychelles in June 1993? We have no excuses why we should not feature among the best democracies of the world; why there are still gaps in the institutional frame work envisaged by our Constitution; why we have not implemented the Constitution to the full.

There is certainly no valid reason why the Judiciary should continue to shelter the Executive. For example, after 20 years we still do not have either a remand centre or a juvenile centre. Judges and magistrates almost every morning during the week have to spend precious court time to find acceptable holding places for persons who need to be remanded in custody pending trial. Often time these persons end up being treated no different than convicted persons contrary to article 18 (11), in the case of an adult, and article 18(12), in the case of a minor. With respect, it is my humble opinion, that the Judiciary must share part of the blame for this state of affair. Are these cases examples of the Judiciary getting too close to the Executive that it confusingly considers itself a part of the Executive engaged in the implementation of the programme of the Executive? The question is rhetorical but you might still wish to answer it as you leave to go home after this symposium.

• 3. INDEPENDENCE OF THE J

UDICIARY Today we are concerned with the Judiciary and I am tasked to carry

• ut an “evaluation of the performance of the Judiciary”.

You would no doubt be familiar with the following provisions of our Constitution: article 1 which states that “Seychelles is a sovereign democratic Republic”; article 49 wherein “democratic society“ is defined as “a pluralistic society in which there is tolerance, proper regard for the fundamental human rights and freedoms and the rule

• f law and where there is a balance among the Executive, Legislature

and Judiciary” and article 119 (2) which provides that “ the Judiciary shall be independent and be subject only to the Constitution and

• ther the laws of Seychelles”.

In carrying out the task set by the theme of this symposium I shall be guided by the above-referred constitutional provisions. Rule of law, separation of powers, independence of the judiciary and democratic society are four core expressions which flash at us from the provisions of our Constitution I have just quoted. Rule of law, separation of powers and independence of the judiciary are so intertwined and intrinsically linked with the notion of democracy that they are treated as litmus test which a society must pass to qualify and earn the accolade of democratic society.

• 4. CLARIFICATION OF CERTAIN TERM S

Before you allow me to lead you through the difficult and sensitive evaluation journey I need to clear the meaning of rule of law, separation of power, independence of the judiciary and also judiciary.

• A. Rule of law

In the context of a democratic society, rule of law does not mean the rule of any law but a law which is, and has been passed by the legislature, in conformity with the Constitution. To put it in the context of Seychelles the law must not be in breach of Chapter 3 of the Constitution and must have been approved by the required majority of a properly constituted National Assembly following the established procedures. Such a law must always prevail. Secondly, once promulgated the law must be applied fairly and evenly. It befalls on the courts to see to this part of the rule of law. The courts are unable to challenge the legality of a law or the way a law

is administered if they are beholden to some other authority. As long as they somehow remain tied, for whatever reason, to the apron string of the Executive or other body they, like the proverbial piper, have to continue to play the tune asked of them by their

• paymaster. Such courts are nothing more than agents of their

paymaster and no different from their historical predecessors, the courts appointed by the sovereign in order to assist the sovereign to resolve differences among the subjects but who could at anytime at the pleasure of the sovereign be relieved of their functions altogether or a particular dossier.

• B. Separation of power

In theory separation of power means that the three arms of the state, the legislature, executive and judiciary, should operate strictly separately, parallelly and independently of each other. This cannot be so in practice however. Firstly, although they perform different functions, all three constitute

• ne state. As part of one state they have one goal, the well being of

the people who have agreed to band and live together in the particular state. The state is the visible manifestation of their common desire to face the future together. Consequently the three arms of the state cannot not touch. Since they have one common source and one common goal, the wish of the people, they touch at both ends, at their common source and at the ultimate goal where the people want to go. Secondly, laws are made by the legislature which the executive

• implement. The judiciary do not make laws. The judiciary is there to

see that the laws passed by the Legislature are consonant with the Constitution and that the Executive apply the laws faithfully and

• impartially. As long as the laws do not contravene the Constitution

the judiciary must apply them. In most jurisdictions most laws are initiated by the Executive as part of the implementation of the electoral programme of the Government. The Legislature is thus very often more a tool of the Executive. In the circumstances, I submit therefore that it is legally incorrect to speak of separation of power. Like article 49 of our Constitution says in its definition of democratic society it is more a question of balance rather than separation of power. Balance of power connotes the idea of the three arms working together in an atmosphere of salutary tension, each keeping a watchful eye on the others to ensure that the others do not overstep into its territory. All three arms must recognise and accept the need for what I have called “salutary tension” above. A blurring of the boundary lines between any 2 arms of the states can lead a state down the slippery slope to dictatorship and abuse. If one of those 2 arms happens to be the Judiciary the slide down is inevitable and faster. We have today a number of countries where there is, what has been called, a dictatorship of the majority. These are countries in both parliamentary and presidential systems of government where the Executive is led by a party which has a majority in the legislative

• assembly. In most of these cases the dividing line between the

Executive and Legislature either does not exist or is so permeable as to be non existent and both the Executive and Legislature become mere tools of the party or the person heading the party. In these states it is doubly important for the Judiciary to be vigilant and strong to counter balance the over powering and over bearing force

• f the combined weight of the Executive and Legislature.

• C. Independence of the J

udiciary In order to ensure a balance of power among the 3 arms of the state the Judiciary must be independent. It cannot be independent if it is

• r feels indebted or obligated towards any or both of the other 2

arms of the state or an institution or a person within either of the 2

• arms. In an article entitled “The Independence of the Judiciary in

Commonwealth Countries: Problems and Provisions” which appeared in the Commonwealth Law Bulletin in October 1994 Professor Antony Allott, Emeritus Professor at the School of Oriental and African Studies of London wrote the following: “so long as judges are appointed, paid, promoted, or dismissed by person or bodies controlled directly or indirectly by the Executive, the judiciary’s independence may be more theoretical than real”. I agree with the statement. On the other hand independence of the judiciary does not confer upon judges a licence to go it alone. Independence does not mean absolute independence. In line with the principle of rule of law, the Judiciary like the other arms of the state is subject to the Constitution and other laws of the state. It is also subject to certain administrative directions and basic rules of courtesy, fairness, court

• etiquette. In short, when we speak of independence of judiciary we

mean in effect and practice a degree of independence which would allow a judge to carry out his/ her duties within the bounds of the law and sheltered from improper or undue interference. Independence of the judiciary requires that the judiciary be accountable for its actions. It is a truism that power can corrupt. Judicial power is no exception. Judges like other human beings have their own foibles. Mr Justice Jackson of the United States Supreme Court made the following remark in the case of Sacher v US 343US

112 (1952): “ [Judges sometimes do] exhibit vanity, irascibility, narrowness and other weaknesses to which human flesh is heir.” (The quotation is taken from an extract of a paper entitled “Public Accountability –who judges the judges?” by Sir Moti Tikaram, then Vice-President of the Court of Appeal of Fiji. The extract is published in the Commonwealth Law Bulletin of July 1993). In this context I wonder whether we have not gone slightly overboard in our Constitution with article 119(3) which says “[S]ubject to this Constitution, Justices of Appeal, Judges and Masters of the Supreme Court shall not be liable to any proceedings or suit for anything done

• r omitted to be done by them in the performance of their

functions.” My humble opinion therefore, is that in order to ensure judicial independence and guard against corruption the system should be such that judges may not only be removable by impeachment but should equally be made to answer for certain other serious misbehaviour, short of impeachable ones and out side the appellate process, but serious enough as to cast doubt as to whether they were impartial and/ or independent. I shall return to this matter later on.

• D. J

udiciary When we speak of Judiciary should be limiting ourselves to judges of the superior courts only? Should we not be more encompassing and cover also magistrates and members of all tribunals when we consider the issue of independence of the judiciary? Decisions of magistrates and tribunals can affect us, sometimes more immediately and profoundly than decisions of superior higher courts. Magistrates have power over our liberty and, with the recent extension of their civil jurisdiction, they can reach very deep inside

• ur pockets. The Rent Board can determine whether we remain in

the comfort of the rented accommodation we are occupying for another night or the office from where we gain our daily bread. This is true also in other ways about the Family and Employment

• Tribunals. Come to think of it because of their reach and the fact

they operate outside the limelight there is a more urgent and present need to ensure that their decisions are made fairly, impartially and free from improper influence. If you will allow me I would like to take you back to article 119(2) of the Constitution which says that “ the Judiciary shall be independent and be subject only to the Constitution and other the laws of Seychelles” and ask you to read it alongside article 119 (1) which states that “[t]he judicial power of Seychelles shall be vested in the Judiciary which shall consist of- (a) the Court of Appeal of Seychelles; (b) the Supreme court of Seychelles; and (c) such other subordinate courts or tribunals established pursuant to section 137.” (underlining is mine). There is therefore a clearly Constitutional statement that subordinate courts (among which are magistrates courts) and tribunals form part of the Judiciary and an equally stated constitutional requirement that they should be independent. Unfortunately however, after making these two statements the Constitution does not go on to integrate the subordinate courts and tribunals within the judicial family when it comes to ensuring their

• independence. The mechanism put in place for appointment of

judges does not apply to magistrates and members of tribunals.

The best the Constitution does is to provide in article 119 (4) for the laws establishing subordinate courts and tribunals to protect “the person exercising judicial functions” in the subordinate courts and tribunals to be afforded “immunity from proceedings or suits” when performing their functions in the like manner as judges of the superior courts. This, as was pointed out before, only shields magistrates and members of tribunals from accountability rather than guarantee that they will act independently and impartially. Members of our subordinate courts and tribunals are appointed directly by the Executive on terms and conditions determined solely by the Executive and are thus amenable only to the Executive.

• 5. EVALUATION OF PERFORM ANCE OF THE J

UDICIARY

• A. Subordinate courts and tribunals

Starting with what I have just said about the “subordinate courts and tribunals” one cannot but conclude that at least that part of our Judiciary falling under the term “subordinate courts and tribunals” does not meet the accepted standard requirement for

• independence. I am not saying by this they are not in fact

independent but that there is no legal framework in place to shield them against improper influences. We cannot but salute the persons serving on our subordinate courts and tribunals for their individual daily battle to remain independent. From the point of view of their independence, when we consider their jurisdiction, the manner in which they may affect people’s lives, the number of people they can and do touch and that these people are very often from the more vulnerable stratum of our society can

we afford to continue to have a two-tier system of justice by allowing

• ur subordinates courts and tribunals to be considered and treated

as second class dispenser of justice? Should the subordinates courts and tribunals not be brought more out in the sunshine alongside the superior courts instead of being left tucked away at odd sites?

• B. Creole as official language of the courts

Secondly, given that many of the people who attend the magistrates’ courts either do not speak or understand English and do not have a very high level of education should the persons who preside in these courts not be required to speak Creole? Is it not time for Creole, the most common of our 3 national languages, be declared an official language of the courts so that it can become a language during trials? A lot of evidence is lost in translation and with it sometimes justice. The right to a fair trial in Seychelles in terms of article 19 of the Constitution in criminal cases it is submitted includes the right for an accused to follow the whole proceedings in a language he understands and for the majority of Seychellois that language is Creole.

• C. Supreme Court and Court of Appeal

With regards to the superior courts, there has been a lot of effort put in improving service delivery with noticeable success. The turn around time for more recently filed cases is faster and there is also better access to court decisions. I wish to formerly acknowledge the progress made in this area. One issue which does not want to go away but continues to nag the Judiciary at the level of the superior courts is its independence. To be fair the subject matter is a live issue in most jurisdictions. For

example, it is presently a topical issue in France and one of the electoral promises made by the current French President is that he will fix the problem in the course of his ongoing mandate. When clearing the notion of independence earlier I submitted that there is no absolute but varying degree of independence. Independence is not static but changes with time and place. As a society becomes better educated and more sophisticated it seeks greater independence for the judiciary as a guarantee of the rights and freedoms of its citizens against the long arm of the Executive. Seychelles is no exception. The dissatisfaction about judicial independence in Seychelles since the adoption of the present Constitution started almost immediately after the Constitution was put in application. It has surfaced like a festering wound each time the topic of Constitution or Judiciary becomes a topic of public discussion and invariably comes to the fore whenever a judge is appointed, especially if the judge happens not to be Seychellois. You may recall it was a hot topic of public discussion towards the end of last year with regard to the re-appointment of a judge of the Court of Appeal. There is a general feeling that the present system of judicial appointment can be manipulated so as to allow the Executive to maintain a hold on judges. The past instances where incumbent non-Seychellois judges were granted citizenship and in process their limited term of office was converted into an appointment of up to 70 years have added fuel to this belief. I submit that the issue needs to be addressed seriously and urgently. I do not think that this continuous snipping is salutary. If our own people have doubts how can one expect foreigners, in particular

foreign investors, not to? I can assure you that the subject comes up each time I deal with inquiries from foreign investors.

• D. Accountability of the J

udiciary There is also some unease about insufficient or lack of mechanism, short of the constitutional procedure for their removal, to make judges accountable for their actions. While it is recognised that judges should be shielded against interference, the shield should not be allowed to be turned into a weapon to put judges above the law

• r commonly accepted norms of behaviour. It is submitted that it is

not sufficient an answer to say that holders of those high offices are in practice, due to their high standards of probity, incapable of

• abuse. I would like to quote from the article of Professor Antony

Ellott I have referred to before “any system which relies on such high principles (alone) is open to abuse and was so abused in the past.” It is also worth remembering here the words of Justice Jackson (quoted before) about judges exhibiting “vanity, irascibility, narrowness and

• ther weaknesses to which human flesh is heir.”
• E. Constitutional Appointments Authority

In its report the Constitutional Review Committee addressed the matter of independence of the judiciary partly from the angle of the appointment of judges. It suggested that the Constitutional Appointments Authority should be enlarged from three to five members and that other persons and institutions be mandated to appoint the additional 2 members. The Committee thought that this will water down the control any one person may have on the Authority and therefore on the appointment of the judges and ultimately on the individual judge and the judiciary as a whole.

• F. J

udicial Commission I would like to propose instead the creation in the Constitution of a Judicial Commission which will take over the responsibility for appointing not only judges but magistrates and members of tribunals, covering in this way the whole of the judiciary as contained in article 119(1) of the Constitution. The Judicial Commission should additionally be mandated to act as judicial ombudsman, dealing with complains against members of the judiciary falling short of complains relating to action to remove them from office. The latter should remain with the National Assembly. The Commission would not itself appoint members of the judiciary but recommend candidates for appointment by the President. The Commission should have an enlarged membership as suggested for the Constitutional Appointment Authority by the Constitutional Review Committee.

• G. Budgetary independence

As an integral part of judicial independence the judiciary should be given budgetary autonomy. As I pointed out before in the words of the saying “he who pays the piper calls the tune”. The judiciary must

• n the other hand expect in return to be asked for greater

accountability

• 6. PROGNOSTIC FOR THE FUTURE?

Democracy is not static and neither is independence of the judiciary. There are varying degree of both concepts depending on time and

• place. As people become more educated and affluent and

technology makes the world more accessible the desire of people for freedom also increases. The chance that the people will stop

pressing for reform of the present or future system of justice is unthinkable. My prognostic is therefore that reform of the Judiciary to make it more responsive to the aspiration of the people is inevitable. I see greater independence of the Judiciary matched by a corresponding demand for greater accountability. We need to be ready for it. It would certainly auger well for Seychelles if the changes were to fall within the bounds of a democratic society and that the Judiciary, Legislature and Executive could work together to ensure that the balance among them referred to in the definition of democratic society in article 49 of our Constitution is maintained at all times when considering and implemanting any of the demands for reform

• f the Judiciary.

Thank you for your patience.

Francis CHANG-SAM 17th June 2013