An order made by the Ministry of Finance, which is being enforced by Registrar of the Supreme Court, ordering International Corporate Service Providers (ISP) (registered agents) to pay Supreme Court fees in foreign currency for Hague Convention apostilles, has become the last nail in the coffin for the rule of law in Seychelles and is sowing great confusion about the application of the foreign exchange regulations. How can anyone now expect the Supreme Court to arbitrate on the wrong application or non-application of a law if it is willingly bending one?
The Supreme Court’s dilemma lies in the Central Bank Act 2004, which came into force on 1st January 2005. Section 18 (1) says that the Seychelles rupee “Notes and coins issued by the Bank shall be legal tender in Seychelles by which a debtor is legally entitled to discharge any monetary debt and a creditor is obliged to accept payment of any monetary claim.” Surely, paying for services rendered by the Supreme Court is the settling of a monetary claim. Should the Supreme Court ignore the legal tender provision of the Central Bank Act when it comes to their services? It appears yes. Yet, in order for the Supreme Court to be able to accept the foreign currency, the Central Bank has to turn it into a money changer because under the foreign exchange regulations no one can accept or exchange foreign currencies unless one is a licensed money changer. If that sounds like Alice in Wonderland society you would be right.
Indeed, the legal authority on which the Ministry of Finance is relying to compel foreigners to pay for services rendered by hotels, restaurant, charter boats, airlines, and car hires etc., in foreign currency is the Foreign Exchange Control Act. But that Act had to be customised in order to allow for its application in a discriminatory manner, which violates Article 27 of the Charter of Fundamental Rights and Freedoms, which states “Every person has a right to equal protection of the law including the enjoyment of the rights and freedoms set out in this Charter without discrimination on any ground”. Every person means anyone legally entitled to be in Seychelles including tourists. Yet, the National Assembly amended the Foreign Exchange Control Act to redefine a visitor as a non-resident in order that they could be discriminated against when the law is applied, contrary to the Constitution.
The Supreme Court’s edict is the latest manipulation of the Foreign Exchange Control Act, as amended, which has been turned on its head. ISPs are not even non-residents. To obtain an ISP license the entity (a commercial company) has to be registered under the Companies Act 1972, which regulates domestic companies as opposed the International Business Companies Act 1994 which regulates offshore companies, which are not allowed to do business in Seychelles otherwise they will have to pay business tax.
So where does one challenge the Supreme Court’s decision? How can the Supreme Court sit in judgement of itself?