DEMAND FOR REMOVAL OF CHIEF JUSTICE
A citizen, Mrs Germaine Amesbury, has made a demand for the impeachment or removal of Chief Justice Vivekanand Alleear, to the Constitutional Appointments Authority (CAA) this week. Under the Constitution, the CAA must consider the request. If successful, Mrs Amesbury's effort will make constitutional history.
Under the Constitution a judge “may be removed from office only for inability to perform the functions of the office, whether arising from infirmity of body or mind or from any other cause or for misbehaviour.” According to Mrs Amesbury, the Chief Justice and another person who was not personally a party to the civil case she filed denied her the right to a fair and public hearing when they surreptitiously removed her as executrix of the estate of her grand father in a “hearing” that took place without her being notified or made a respondent.
Mrs Amesbury, who is a court appointed executrix of the estate of the late Pierre Ernest Vidot, has told this newspaper that in 2001 she started civil proceedings against a company Golden Sun Property (Pty) Ltd. She said that the case had been partly heard before several judges and had been cause-listed before Judge Perera on 28th June at 1.45 pm, the day before Independence Day. However, on that day, work ceased at 12 noon. Subsequently her case, known as Civil Side No 262/01 on the Cause List, was postponed for mention on 19th September 2006 at 09.00 am but this time before the Chief Justice.
In the Chief Justice's chamber on 199h September, she was served with a copy of a court order given in C.S.No.185/06 removing her as executrix in C.S. 262/01 in effect terminating her case against Golden Sun (Pty) Ltd. The Chief Justice - then ordered that a copy of the petition upon which, he had already ruled, be served on her, for her answer on 10th October in front of another judge.
It transpires that Mr. Gerard Maurel a director of the defendant in C.S. No.262/01 had filed a petition on 26th June, which was, heard ex-parte before the Chief Justice on 30th June 2006. In other words the petition was heard without Mrs Amesbury, the plaintiff knowing about it, and therefore she could not respond. This means that her case had not only been terminated but had also mysteriously disappeared and “replaced” with C.S. No. 185/06. On October 10th she has to respond to C.S. No. 185/06 which is not only a case she is not a party to, but one in which a court order has been made, and registered.
Mrs Amesbury is now in a situation where the whole affair has moved from the sublime to the ridiculous or in the classic Catch 22 situation or
When he was recommended by the CAA to be appointed Chief Justice of Seychelles Mr Vivekanand Alleear was, “in the opinion of the Constitutional Appointments Authority someone who had shown outstanding distinction in the practice of law, and could effectively, competently and impartially discharge the functions of the office of a judge.” If he was that kind of person then, considering what he has done to the case of Mrs Germaine Amesbury, can that be considered to be still the case today?
If the CAA should consider that Mrs Amesbury's petition has merit and ought to be investigated, it must appoint a tribunal consisting 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 jurisdiction or a court having jurisdiction in appeals from such a court or from among persons who are eminent jurists of proven integrity” A tall order given the emaciation of the court system after the coup d'etat in 1977. It started with the then Chief Justice, Mr O'Brien Quinn an Irishman, being arrested, held in a cell and deported.
On the issue of removal of a judge, the Constitution also provides that “the tribunal (shall) inquire into the matter, report on the facts thereof to the Authority and recommend to the President whether or not the judge ought to be removed from office”. Should the tribunal recommend that the “judge ought to be removed from office, the President shall remove the judge from office”. If a tribunal is set up, the President will have the power to suspend the Chief Justice from performing his functions during the investigations.
Of paramount importance is whether this is an isolated incident? Only an investigation will provide the answer. Once again the country’s eyes are on the CAA and the handling, or otherwise of this case will demonstrate our commitment to democracy, the Rule of law, justice and whether our Constitution is indeed the Supreme Law of the land. This incident highlights once again the importance of having a competent, impartial and independent judiciary.
Mrs Germaine Amesbury may yet make legal and constitutional history.