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 th June 2013 17 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 of 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 st Committee (the “Report”) to the President of the Republic on 21 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 out 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 of 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 other 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 one 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 of the combined weight of the Executive and Legislature.