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Carpine v Seychelles National Party and Others, Ramkalavan v Carpine and Others (Constitutional Court Case 7 of 2011, Constitutional Court Case 8 of 2011) [2011] SCCC 7 (18 July 2011);

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Carpine v Seychelles National Party and Others, Ramkalavan v Carpine and Others (Constitutional Court Case 7 of 2011, Constitutional Court Case 8 of 2011) [2011] SCCC 7 (18 July 2011);

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In Re: Constitutional Case No: 7 of 2011

Jane Carpine …..............................................................Petitioner

Versus

1. The Seychelles National Party Herein represented by its leader Mr. Wavel Ramkalavan

2. Mr. Wavel Ramkalavan

3. The Attorney-General

of National House, Victoria …..........................................Respondents

In Re: Constitutional Case No: 8 of 2011

Mr. Wavel Ramkalavan …................................................................Petitioner

Versus

1. Jane Carpine

2. Speaker, National Assembly of Seychelles

3. The Attorney-General

of National House, Victoria

======================================================

D. Karunakaran, J (presiding), B. Renaud, J., M. Burhan and G. Dodin, J.

======================================================

Mr. B. Hoareau for Petitioner in CC 7/11 & Respondent in CC8/11

Mr. B. Georges for the 2nd and 3rd Respondents in CC7/11and Petitioner in CC8/11

Mr. R. Govinden for the 3rd Respondent in CC7/11 and CC8/11

Judgment

At the outset it must be stated that the two Constitutional Cases to wit: No. 7 and 8 of 2011 were consolidated with the consent of all parties, for the purpose of an urgent hearing and a speedy disposal. The reasons for urgency are stated in the affidavit of Mr. Wavel Ramkalawan, the Leader of the Seychelles National Party, (hereinafter called the SNP), filed in support of his motion dated 10th August 2011 in CC7 of 2011. We believe that we need not go into the details but would simply add that since those reasons were found valid, we consolidated both cases and proceeded to hold an urgent hearing with a view to give a speedy, complete and effective disposal of all the issues that arise in this matter.

Indeed, a Court of law, be it appellate or trial or Constitutional, should steer the law towards the administration of justice, rather than the administration of the letter of the law. In that process, undoubtedly, its primary function, amongst others, is to adjudicate and give finality to the litigation. However, such finality cannot and should not be given mechanically by the Court just for the sake of a technical conclusion of the case without providing a complete and effective remedy to the parties, when they come before the Court with a real grievance. In each adjudication, the Court ought to ensure that all disputes including the latent ones pertaining to the cause or matter under adjudication, are as far as possible completely and effectively brought to a logical conclusion once and for all. The good sense of the Court, I believe, should always foresee the long term ramifications of its determination and adjudicate the cause so as avoid obscure and spurious remedies that could possibly, proliferate in future, due to multiplicity of litigations on the same cause or matter. Needless to say, the prevention of potential delays and the avoidance of multiplicity of litigations are the hallmarks of a good justice delivery system. Judges should always decide issues with judicial forseeability and take preventive measures that are always better than cure. Therefore, our Courts in Seychelles - like any other Court of such forseeability and sense would do - should adjudicate the disputes accordingly and prevent the chronic delays and multiplicity of litigations on the same cause or matter, which have cancerously afflicted our justice delivery system. After all, the law is simply a means to an end; that is, justice. If the means in a particular case fails to yield the desired result due to procrastination and technical application of law and procedure, we judges ought to rethink, reinvent, reinterpret and sharpen those means in order to eradicate the judicial delay and municipality of litigations. Hence, the Courts should never hesitate, where circumstances so dictate, to adopt measures that are just and expedient to prevent the delays, multiplicity of litigations and the resultant frustration in the due administration of justice.

Both petitions in substance, give rise to the same issue pertaining to an alleged vacancy that arose on 12th July 2011 in respect of the seat of a proportionally elected member of the National Assembly one Ms. Jane Carpine vide the certificate dated 12th July, 2011 issued by the Speaker under Article 81(6) of the Constitution. Both petitioners herein, namely Ms. Carpine and Mr. Ramkalawan respectively in CC7/11 and CC8/11 seek an intervention of this Court (Constitutional Court) to determine whether the seat held by Ms. Carpine has become vacant. Obviously, they do so invoking the special jurisdiction if I may say so, conferred on this Court by virtue of Article 82 of the Constitution, which reads thus:

82. (1) The Constitutional Court shall have jurisdiction to hear and determine whether –

a) a person has been validly elected as a member of the National Assembly; or

(b) the seat of a member of a National Assembly has become vacant.

(2) An application under clause (1)(a) may, in the case of -

(a) a directly elected member, be made by any person entitled to vote at an election in the electoral area for which the member was returned, any person who was a candidate at the election in the electoral area or the Attorney-General; or

(b) a proportionately elected member, be made by any member or the Attorney-General.

(3) An application under clause (1) (b) may, in the case of -

(a) a directly elected member, be made by any member, any person entitled to vote at an election in the electoral area for which the member was returned or the Attorney- General;

(b) a proportionately elected member, be made by any member, or the political party of which the proportionately elected member was a member at the time of election and which nominated the person as a member or the Attorney-General.

(5) Where a person, other than the Attorney-General, makes an application under this article, the Attorney- General may intervene and may appear or be represented in the proceedings.

(6) An Act may provide for -

(a) the circumstances and manner in which and the imposition of conditions upon which an application may be made to the Constitutional Court for the determination of a question under clause (1); and

(b) the powers, practice and procedure of the Constitutional Court in relation to the application.

Constitutionally and jurisdictionally speaking, the Constitution Court is nothing but the Supreme Court with original jurisdiction in matters relating to the application, contravention, enforcement or interpretation of this Constitution;

This special jurisdiction as I see it, is nothing but an additional jurisdiction the Supreme Court enjoys over and above the original jurisdiction that has already been conferred on it by the Constitution and other laws of Seychelles including the equitable jurisdiction conferred on this Court by Section 6 of the Courts Act. This is evident from Article 125 and 129 of the Constitution, which read as follows:

125.(1) There shall be a Supreme Court which shall, in addition to the jurisdiction and powers conferred by this Constitution, have -

(a) original jurisdiction in matters relating to the application, contravention, enforcement or interpretation of this Constitution;

(b) original jurisdiction in civil and criminal matters;

(c) supervisory jurisdiction over subordinate courts, tribunals and adjudicating authority and, in this connection, shall have power to issue injunctions, directions, orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto as may be appropriate for the purpose of enforcing or securing the enforcement of its supervisory jurisdiction; and

(d) such other original, appellate and other jurisdiction as may be conferred on it by or under an Act.

(7) For the purposes of clause (1)(c) "adjudicating authority" includes a body or authority established by law which performs a judicial or quasi-judicial function.

Whereas Article 129 reads thus:

129.(1) The jurisdiction and powers of the Supreme Court in respect of matters relating to the application, contravention, enforcement or interpretation of the Constitution shall be exercised by not less than two Judges sitting together.

(2) …...

(3) Any reference to the Constitutional Court in this Constitution shall be a reference to the Court sitting under clause (1).

Therefore, I find and conclude on a point of law that the special jurisdiction conferred on this Constitutional Court by virtue of Article 82 of the Constitution does not and cannot restrict or take away its general and original jurisdiction and powers conferred by the other provisions of the Constitution.

Be that as it may. I will now proceed to rehearse the facts of the case and the submissions of counsel as briefly as possible since my brother judges would also in their respective judgments rehearse them, which may also be read as part of my judgment hereof.

It is not in dispute that Ms. Carpine was at all material times, a proportionately elected member of the National Assembly of Seychelles having been nominated by the SNP on the basis of the scheme of proportional representation specified in Schedule 4 read with Article 78 of the Constitution. The recently dissolved National Assembly constituted 23 members representing Party Lepep, including the Speaker of the Assembly and 11 members representing the SNP including Ms. Carpine. She has been a member of the National assembly since March 2009. She has also been an active member of the SNP since its formation and registration as a political party after 1998 and moreover she has been a member of the Executive Committee of SNP for about 4 years.

On Tuesday 12th July 2011, during the morning session of the National Assembly, Ms. Carpine voted in favour of a bill introduced before the Assembly by the Vice President to amend Article 115 of the constitution so as to replace the office of the electoral Commissioner by an Electoral Commission. Ms. Carpine was the only member of the SNP to vote in favour of the bill, whilst all the members from the ruling party also voted in favour of the said bill, as a result of which the requisite two-third of the number of members of the SNA to pass the bill was satisfied. According to Ms. Carpins, she voted in favour of that bill since the bill seeking to replace the office of the Electoral Commissioner by an Electoral Commission was in line with what SNP had been campaigning and requesting for ever since 2001 and she was of the strong political conviction that the bill as proposed was in the national interest of Seychelles in that, it would greatly enhance and strengthen the democratic process in the Republic of Seychelles. Moreover, in voting in favour of the bill, she was exercising her freedom of expression, speech, debate protected by Articles 22 and 102 of the Constitution of Seychelles. However, she had to politically pay a heavy price for acting upon her conviction. Admittedly, prompted by the voting of Ms. Carpine in favour of the bill against party lines in the National Assembly, the SNP leader, on the same day i.e. 12th July, 2011 prior to the commencement of the afternoon session notified the Speaker in writing that SNP was replacing the proportionally elected member Ms. Carpine by a new member with immediate effect, though the new member was not named in that notice. The SNP Leader thus pulled the trigger to replace Ms. Carpine by a new member. This resulted in the vacancy of the seat occupied by Ms. Carpine in the National Assembly as a proportionately elected member. The SNP Leader opted to do so, obviously, without any warning or notice to Ms. Carpine, who was then a sitting member of the Assembly. This option exercised the SNP Leader caused an end to her membership and rendered the seat vacant. Although it appears to be arbitrary and in violation of the first principles of natural justice, he seems to have done so due to political exigency in exercise of the power conferred on the political party by virtue of Article 81(1) (h) (i) of the Constitution, which reads as follows:

81.(1) A person ceases to be a member of the National Assembly and the seat occupied by that person in the Assembly shall become vacant -

………

(h) if, in the case of a proportionately elected member -

(i) the political party which nominated the person as a member nominates another person as member in place of the first-mentioned person and notifies the Speaker in writing of the new nomination;

(ii) the person ceases to be a member of the political party of which that person was a member at the time of the election; or

(iii) the political party which nominated the person as a member is dissolved or otherwise ceases to exist;

…………

In response to the said notification given by the SNP Leader for the replacement of Ms. Carpine, the Speaker immediately issued a certificate hereinafter referred to as the Certificate of Vacancy, under Article 81 (6) which certificate reads thus:

“Dear Hon. Carpins,

RE: CERTIFICATE UNDER ARTICLE 81 (6) OF THE CONSTITUTION

This is to certify that in view of the letter addressed to my Office by the Leader of the Opposition that you are being removed as a Proportionate Member for the Seychelles National Party, you will cease to be a Member of the National Assembly with immediate effect pursuant to Article 81(1) (h) (i) of the Constitution of Seychelles unless you choose to exercise your right of challenge under Article 81 (6) (a) of the Constitution in which case Article 81(7) will apply”

Herein, it is pertinent to note that Article 81 (6) of the Constitution runs thus:

“A certificate under the hand of the Speaker certifying that a person has ceased to be a member of the National Assembly shall be conclusive evidence of this fact and of the fact that the seat held by that person is vacant unless-

(a) the person makes an application under article 82 to the Constitutional Court within thirty days of the date of the certificate; and

(b) the Constitutional Court determines that the person is still a member of the National Assembly and that person still occupies that seat.

(7) Until the final determination of an application referred to in clause (6)(a) the person who made the application shall continue to be a member of the National Assembly in respect of the seat for which the person was elected.

Immediately upon receiving that certificate of vacancy from the Speaker, Ms. Carpins notified the Speaker by a letter dated 12thJuly 2011, that she intended to and would shortly challenge her removal and the alleged vacancy created by the SNP Leader. Accordingly, she seque the the sponse to th ecErtificate of vacancy i in terms of thMember the In fact, ON THE BASIS OF may briefly (1) (b) the . Presumably, both petitions issued the and give rise to the same issue based on the Constitutional interpretation given to Article 82 (7) law based on the interpretation of Article . It also begs the question whether the National Assembly of Seychelles is still alive as it has purportedly put an end to its life on 12thJuly 2011. The determination of this issue as we see it, carries a great deal of Constitutional significance marking a major milestone in the development of Constitutionalism in Seychelles. In this process, in fact, two of the Founding Principles of Democracy underlying the Constitution namely: (i) the concept of “Checks and Balances” vis-à-vis “Separation Powers”, between the three branches of Government and (ii) the concept of “Rule of Law”, are inevitably, put to the test in our young and vibrant democracy; obviously, to its advantage, so as to advance with the best of its kind, in the rest of the democratic world.

The test indeed, demands a judicial intervention in the sue moto dissolution of the Legislative Assembly, which necessitates this Court to examine and pronounce on the “Constitutional validity” of the purported dissolution of the National Assembly, by passing a resolution on 12th July 2011, without a meeting being convened for that purpose; that is, for the purpose of dissolving the Assembly.

Needless to say, the “Constitutional Validity” in this respect, ought to be examined with the touchstone and in the light of Article 111 of our Constitution, which we did diligently. Accordingly, we now proceed to deliver our decision particularly, the operative part of our Judgment in this matter, because of the urgency involved - we believe, the sooner, the better - in clearing up the cloud that hangs over the purported dissolution and upholding the supremacy of the Constitution. For avoidance of doubt, the decision delivered herein, shall be deemed to be the final Judgment of this Court for all legal intents and purposes, and shall take effect forthwith. However, the ratio decidendi or the detailed reasons for this decision shall be given later, perhaps in a couple days, with due notice to the parties. In that reasoning, we will give our considered interpretation on Article 111 of the Constitution. Be that as it may.

In our unanimous judgment, this Court having given careful thought to the submissions made by counsel for and against the petitions, taking into account the entire circumstances of the case and on the strength of the interpretation we give to Article 111, makes the following findings, declarations, orders and directions in this consolidated matter:-

This Court finds that the purported dissolution of the National Assembly of Seychelles, which originated from its meeting of 12th July 2011, contravened Article 111 of the Constitution, since that meeting was not summoned or convened for the purpose of dissolving the National Assembly. This was, in clear breach of the “condition-precedent” enshrined in the Article that insists on the purpose required to be known in advance to all its members, for summoning such meeting.

This Court also finds that the impugned resolution passed by the Assembly for its dissolution at the meeting of 12th July 2011, is null, and void ab initio, since that resolution was passed at such a meeting that was not summoned to deal with the matter of dissolution; and to say the least, even the relevant order paper issued to the members of the Assembly on that fateful day, did not contain or convey, even a scintilla of hint about the intended dissolution of the Assembly, in breach of Article 111 of the Constitution.

Accordingly, this Court hereby declares that the purported dissolution of the National Assembly of Seychelles and the impugned resolution passed by the Assembly for its dissolution are unconstitutional and so void ab initio in the eye of law.

Consequently, this Court quashes the impugned resolution, sets aside the purported dissolution and orders an immediate restoration of the National Assembly bringing it back to life from its interregnum so that the Assembly may resume the current session and continue to transact its normal business as usual.

Accordingly, this Court directs the Honorable “Speaker” of the National Assembly of Seychelles to take all steps, whatever he deems expedient in the circumstances and do the necessary for an immediate restoration of the National Assembly giving “force and life” to the findings, declarations, orders and directions spelt out hereinbefore; and

This Court makes no order as to costs.

Dated this 18th of July 2011 at Victoria, Mahé, Seychelles

………………………………….

D. Karunakaran

Ag. Chief Justice (Presiding)