Read Constitutional Court judgment
One indication of the importance of this case is the speed with which the court of appeal decided the matter. The case was argued on 11 December 2023 and judgment, which held that the appeal involved ‘significant constitutional issues of great public interest’, was delivered just a week later
Clearly, it’s also a matter of some significance to key members of the legal and human rights community: the case was brought by the Seychelles Human Rights Commission, the ombudsman of Seychelles and the Bar Association of Seychelles.
Originally, the three had filed a constitutional petition, challenging the constitutional validity of a particularly controversial piece of legislation, passed into law in 2022, with a name that gives no hint of why is should be so hotly disputed: the 2022 Tenth Amendment to the constitution of Seychelles.
State of emergency
However, it is an amendment with potentially far-reaching consequences, giving new powers to the Seychelles defence force. Among others, it allows soldiers to enforce domestic law and to work alongside the police even when there is no declared state of emergency.
Given the past unhappy history of Seychelles in relation to the activities of the military, there has been some concern about the new law. One problem, according to the petitioners, is that it does away with the ‘buffer’ that previously existed between law enforcement and the president, who is also the commander in chief of the defence force. The three petitioners said the amendment ‘undermines the democratic protections [of the constitution], in particular due process, the rule of law and human rights.’
But before the central issue was canvassed at the constitutional court, the petitioners dropped a legal bombshell: they asked that the three judges hearing the matter – the chief justice, Rony Govinden, and his colleagues Mohan Burhan and Brassel Adeline – should all recuse themselves. And it was this recusal issue that has been exercising the apex court, the court of appeal of Seychelles, whose decision was delivered on 18 December 2023.
Constitutionally ‘impermissble’
Motivating their recusal application in the constitutional court heard in November and December 2022, the petitioners pointed to a statement made by the president of Seychelles, Wavel Ramkalawan, before he formally assented to the new amendment becoming law. According to a report, published by State House at the time, he had thanked everyone ‘who has been involved in the amendments of this new bill’. On this list of the groups involved in the amendments, he named ‘the judiciary (both the supreme court and the court of appeal)’.
According to the petitioners ‘any involvement’ by the judiciary in preparing that amendment was constitutionally impermissible, particularly given ‘the controversial and contentious nature of the proposed amendment’.
The petitioners, who wanted to challenge the constitutionality of the amendment, said the involvement of the judiciary in the preparation of the amendment had ‘compromised’ the judiciary and the judiciary could not now impartially adjudicate the constitutionality of the amendment. As a result, said the petitioners, they were ‘deeply apprehensive’ that the judges of the constitutional court hearing their petition wouldn’t ‘bring an impartial mind’ to their consideration of the matter.
‘Compromised’ impartiality
There was a further ground for apprehension, they said. The chief justice had been sold state land at a price that was under its official value. While the minister responsible for lands had described this, on television and in the national assembly, as an act of ‘compassion’ towards the CJ, it could be seen by a reasonable, fair-minded and informed person as ‘favouritism or an undue advantage’ that the CJ enjoyed, according to the petitioners.
Thus, they said, the CJ’s ability to adjudicate disputes involving the interests of government in an impartial way, was compromised.
The constitutional court did not hesitate to reject the recusal applications. The three judges said that it wasn’t a question of whether, on the petitioners’ facts, the three should recuse themselves. Rather it was whether, procedurally, the motion was ‘sustainable, given certain strong procedural difficulties that it entails.’
Abuse of court process
They said it seemed that the recusal application meant that ‘none of the current judges and justices’ could hear the petition and the recusal motion. The three judges explained in some detail why this would result in an ‘unworkable’ situation, including that there might be considerable expense incurred if ‘ad hoc judges’ had to be appointed. Finally, they dismissed the recusal application as ‘frivolous and vexatious and an abuse of the process of this court’.
The petitioners first asked the constitutional court for leave to appeal against this ruling, but the court refused, saying that the recusal application had nothing to do with the facts of the main case.
It was this rejection that prompted the petitioners to turn to the court of appeal, asking for special leave to appeal against the dismissal of the recusal motion.
Special leave to appeal was ‘available’
In their decision of 18 December, the three appeal court justices found against the technical legal grounds given by the constitutional court for refusing to allow an appeal and held that special leave to appeal was indeed ‘available’. Should they grant it, however? – that was the next question.
In its answer, the apex court stressed that the grounds on which the recusal application was made ‘remain as allegations’ and that its decision was based on that assumption.
The court reproduced the petitioners’ long list of grounds for an appeal, including, among others, that that the constitutional court had been wrong to conclude that the motion was ‘frivolous and vexatious’. Further, the petitioners said, the ‘conduct, comments and findings’ of the constitutional court ‘show bias’ against the applicants, thus ‘adversely affecting the structural integrity of the proceedings and the applicants’ right to a fair hearing’.
Judicial independence ‘at the core’ of the rule of law
Reflecting on the grounds of appeal put up by the applicants, the appeal judges said these went to ‘the very core of the rule of law’, a principle that the constitution should uphold. Central to the rule of law was judicial independence, and that courts would be ‘independent and impartial’, with cases given ‘a fair hearing’.
An ‘independent’ judiciary wasn’t just about the state of mind of an individual judge in the ‘actual exercise of judicial power’. Rather, the concept also included the status of the relationship of the judiciary with the other branches of government – the executive and the legislature.
The appeal court said, ‘The judiciary must ensure that it remains independent and that it is seen to be independent of any influence that might reasonably be perceived as compromising its ability to judge cases fairly and impartially. The need for an independent judiciary is fortified by important public policy considerations.’
‘The necessity to maintain the confidence of the people in the independence of the judiciary cannot and should not be measured by the expenses’ that might be necessary to decide the issues by 'ad hoc appointments.’
The judges concluded that the grounds of appeal raised ‘significant constitutional issues of great public interest.’
‘They are arguable and not frivolous. They have a reasonable chance of success for the applicants. Irreparable harm would be caused to the applicants if the case proper were to proceed.’
Next step for the petitioners will presumably for them to head back to the constitutional court, and obtain a date on which to argue an appeal in their recusal application.
