SECOND REQUEST FOR IMPEACHMENT OF A SUPREME COURT JUDGE IN FOUR MONTHS
The Constitutional Appointments Authority (CAA) has received an application to impeach SupremeCourt Judge A. R Perera for an alleged “falsification of court records”. This is the second time that the CAA has been called upon to consider whether a judge of the Supreme Court ought to be removed from office. This newspaper has been reliably informed that the CAA will be forwarding its recommendation to the President in the course of this week. This article will focus on the role of the CAA when it is called upon to consider whether or not a judge ought to be removed from office under Article 134 of the Constitution. A good law becomes a bad law if enforced by bad people. Likewise a good institution becomes a mockery if run by incompetent and unqualified persons. Who, therefore qualifies to be appointed as a member of the CAA? Article 141 spells it out, the person must be a citizen of
(a) has held judicial office in a court of unlimited jurisdiction; or
(b) is of proven integrity and impartiality etc…..
Based on the above qualifications we have France Bonte as Chairman, Gaby Hoareau and Marlene Lionnet as members. Could France Bonte as a Central Committee Member of the SPPF be “impartial”? An appointment and acceptance of the post of chairman of CAA by anyone in such a position arguably compromises the integrity of both the appointer and the appointee.
It was reported by this newspaper that France Bonte had handed in his resignation to the president. The resignation had been accepted but reportedly it would only take effect at the end of March 2007. As Chairman, France Bonte had to submit his resignation to the President. Can the resignation take effect two months after it was received? No because Article 142 (3) says; “A resignation shall take effect on the date it is last received by any person specified in that clause”?
What is the role of the CAA when it has to consider the removal of a judge under Article 134? The relevant provisions of the Constitution provide clear guidelines.
134 (2) Where the CAA considers that the question of removing a Justice of Appeal or a Judge from office under clause (1) ought to be investigated-
(a) the CAA shall appoint a tribunal of a President and at least two other members, all selected from among persons who hold or have held office as a judge of a court having unlimited original jurisdiction or a court having jurisdiction in appeals from such courts or from among persons of proven integrity; and
(b) the tribunal shall inquire into the matter, report on the facts thereof to the CAA and recommend to the President whether or not the Justice of Appeal or Judge ought to be removed from office.
Nowhere is the CAA mandated to investigate the complaint itself or to consult with the Attorney-General or seek his advice. When an applicant asks the CAA to consider the removal of a Judge or Justice of Appeal the CAA has one of two options. Either it considers that the allegations made do not warrant an investigation, in which case it has to inform the complainant and provide reasons, or it considers that the allegations ought to be investigated and appoints a tribunal. The Tribunal once appointed shall (i) inquire into the matter, (ii) report on the facts to the CAA and (iii) recommend to the President whether or not the judge ought to be removed. What has reportedly happened in the present case violates the Constitution.
In order to fully appreciate the enormity of the violation it is important to understand, not only the nature of the allegation against Perera but also the fact that the Application mentions Mr. France Bonte.
Faced with an application containing such an allegation and bearing in mind the clear and unambiguous provision of the Constitution, the CAA chaired by Mr.France Bonte whose resignation although accepted is to take effect at the end of March and who is directly involved, invites Judge Perera to submit a written explanation of his actions, and based on the explanations whether written or oral or both the CAA will make its recommendations to the President.
Everything done by the CAA is a violation of the Constitution and is therefore void. Any recommendations made in violation of those provisions is likewise void, and consequently any action taken by the President will be void for failing to comply with the Constitution.
The remaining two members of the CAA can act on their own as per article 134(6) and Mr. Bonte should have recused himself, but this, it was learnt did not happen.
A competent and qualified tribunal would have conducted an investigation into Judge Perera’s fitness to remain as a judge bearing in mind comments made by Seychelles Court of Appeal back in 1991 in the case of Wilby Robert and Andre Derjacques v/s The Republic where the Court of Appeal found several instances where “Judge Perera’s statement of the facts was misleading and skewed to the detriment of that accused….we are satisfied that the reasoning of the trial judge (Perera) is faulty, his statement of the facts on occasion regrettably inaccurate and his approach seriously wanting in judicial objectivity…….” and further, “normally the appellate tribunal accepts the evaluation of a witness’s credibility by the trial judge on the basis that the judge has had the advantage of having heard and seen the witness. In this case, however, we do not consider it safe to accept that evaluation. The trial Judge’s failure to be objective makes this prudent.”
Not only would a tribunal have found such material formidable but more importantly it would have been in a position to ascertain whether what occurred on 17th October 2006 was an isolated incident or whether, it has been a consistent and systematic practice by certain members of the judiciary.
Secondly and perhaps more importantly is the damning report by two professors from the University of Coventry who said “judicial abuse now arguably constitute the single most serious governance issue requiring reform.” An allegation of “falsification of records” be it against the police, a bank or a judge, warrants at the very least an investigation. This would, if anything provide a semblance of transparency, accountability and good governance. These were the things that President Michel promised the people of
“I, James Alix Michel do swear and sincerely declare that I will be faithful and bear true allegiance to the Constitution of
“I, James Alix Michel do solemnly and sincerely declare that I will faithfully and diligently perform my duties and discharge my functions in the office of President of Seychelles, that I will be faithful to the Republic of Seychelles, that I will uphold the Constitution and the laws of Seychelles and that I will dedicate my abilities to the service and welfare of the people of Seychelles without fear or FAVOUR, affection or ill will. SO HELP ME GOD”
On a previous occasion the CAA took the view that the complainant had alternative remedies. Surely those advising the CAA, or even the CAA itself is quite aware that the section that deals with remedies under the Constitution is Article 46 and not Article 134. Applying to the CAA for the removal of a judge or Justice of Appeal is not a remedy because even assuming that the Judge or Justice of Appeal is removed how would that help the complainant? Would that reverse the decision, the subject of which caused the complaint in the first place? Or would it compensate the complainant to the extent of putting him or her in the position she/ he would have been had there not been that particular incident? If the judge is removed the complainant’s action would succeed or fail on its merits and not on whether or not the particular Judge or Justice of Appeal was removed. An allegation of fraud or falsification of court records made against the very institution that is supposed to uphold and enforce the constitution and the Rule of Law is evidence that indeed “Judicial abuse now arguably constitute the most serious governance issue requiring reform.”
This newspaper is calling upon the President to reject the recommendation of the CAA and to refer the matter back to the two remaining untainted members of the CAA as per Article 134(6) for compliance with the relevant provisions of the Constitution. Whitewashing such serious allegations does not do justice to James Michel’s Government. “Pour Lanmour Sesel” we urge President Michel to demonstrate objectivity and respect our Constitution and to suspend the Judge from performing the functions of his office pending the outcome of the investigation.