Will the learned Judge have the courage of his conviction?
IT is my humble opinion that none of the current crop of judges of the Supreme Court knows the Constitution of the Third Republic better than Judge Bernadin Renaud. For Mr Renaud not only chaired but also actively participated in the deliberations of the second session of the Constitutional Commission elected by all the people of Seychelles in June 1992. To occupy the position of chairman, Renaud had the support of both the DP and the SPPF, the two political parties elected to draft the Constitution. The first session, chaired by Joe Belmont, which met in camera was aborted when I led the DP delegation in a walk-out when the SPPF side decided to change the rules. The subsequent constitutional document created by the SPPF alone was summarily rejected by the people in the follow up referendum in November 1992.
On Tuesday 27th May 2008, three judges of the Supreme Court sitting as the Constitutional Court met to hear arguments in a case brought by Mr Frank Elizabeth who contested the swearing in of Mr Jose Henri by the Speaker of the National Assembly as being constitutionally incorrect because the Constitutional procedures were not followed by the Speaker. The three judges making the panel of the Constitutional Court were the acting-Chief Justice Judge Perera (in the chair), Judge Karunakaran and Judge Bernadin Renaud. According to the Constitution a Constitutional Court must comprise of at least two judges of the Supreme Court. I was very pleased for once to see a true born and bred Seychellois sitting on the Constitutional Court Bench to interpret the Constitution and I was more pleased that it was Judge Renaud because he was a framer of the Constitution along with me.
Frank Elizabeth elected to argue his case since he is a practicing lawyer. In fact the Constitution says that “any person who alleges that any provisions of this Constitution (other than Chapter III i.e. fundamental rights) has been contravened and that the person's interest is being or likely to be affected by the contravention may apply to the Constitutional Court for redress.” The fact that Frank Elizabeth was also a lawyer was an added bonus.
In this case, which Frank Elizabeth instituted to seek the Constitutional Court ruling on the question of, whether the Speaker is obligated by the Constitution to issue a Certificate to any member of the National Assembly, proportionately or directly elected, to inform him that he is no longer a member of the National Assembly and that his seat has become vacant, when the Speaker receives a letter from the leader of a political party advising him of a rotation of a member in accordance with article 81 (6) of the Constitution.
Essentially the Constitutional question becomes whether it is the legal act of the leader of a political party which causes the cessation of the membership of the National Assembly or the act of the Speaker by issuing the Certificate? Judge Bernadin Renaud seems to overtly agree with the arguments of Frank Elizabeth that it is the Speaker, as the person in charge of his institution, the National Assembly, which causes the membership of a member of the National Assembly to cease by issuing the Certificate and not the leader of a political party.
Mr. Elizabeth had argued that once the Certificate is issued informing the member that he is no longer a member of the National Assembly and that his seat has become vacant, the member has 30 days in which to contest his removal before the Constitutional Court. If the member in question contests, he remains a member of the National Assembly until the Constitutional Court gives its final determination. As such no one can be appointed in his place as he is considered to be still a member of the national and his seat does not become vacant under the Constitution.
In the case of Frank Elizabeth, he only received a letter from the leader of the SNP on Monday the 7th October 2007 informing him that the SNP has decided to cease its participation with the DP in the National Assembly and as such he is being removed.
The next day, the 8th October, Jose Henri was administered the Oath by the Speaker. Mr. Elizabeth argued that this is the wrong procedure and that the leader of a political party is incapable in law of causing the legal act which stops the membership of a member of the National Assembly.
It is only the Speaker who has this power under the Constitution and he exercises it by issuing a Certificate to a member whom the leader of a political party has advised him he wants removed from the National Assembly. Otherwise, there would be utter chaos, Mr. Elizabeth argued.
For all intents and purposes the case made constitutional history in that it challenged the formality (or lack of) adopted so far by the two Speakers of the National Assembly under the Constitution of the Third Republic, when it comes to declaring a seat vacant and a person being no longer a member of the National Assembly. One would have thought that this would have attracted the interest of the State broadcasting media (SBC) since this was the year of the Constitution. In fact, there was virtually no one in the public gallery except me.
Frank Elizabeth was a constitutionally appointed member of the National Assembly because his appointment was gazetted by the only authority empowered to do so, the Electoral Commissioner. Frank Elizabeth took his seat, was sworn-in by the Speaker and received the stipends due to a member according to the law. The Speaker swore in a new member to replace Elizabeth without issuing a Certificate which says that Elizabeth was no longer a member of the National Assembly and that his seat had become vacant.
The absence of a Certificate denied Elizabeth the constitutional right to contest his removal from the National Assembly before the Constitutional Court, a right which incidentally is given to him by Article 82 of the Constitution. Fernando seems to be making a mockery of the Constitution when he argued that a proportionally elected member has no right to contest his removal from the National Assembly and that it is the leader of a political party which causes the cessation of a proportionally elected member of the National Assembly and not the Speaker.
At one point Judge Renaud asked Fernando what he thought would have happened, hypothetically speaking, if Elizabeth had arrived in the National Assembly to claim his seat on the day that Jose Henri was sworn-in. What if there had been more than one new member being sworn in and those removed had arrived simultaneously to claim the same seats? Wouldn't that be chaos? Doesn't it show the logic of the Certificate, Judge Renaud asked? After all, this is how it's done everyday in employment and other positions in society. There is always a document that says one no longer holds a particular post or can continue to enjoy a privilege.
In my view, the issue is very simple. If Article 81(6) does not apply in this case then when does it apply? It is argued, quite rightly in my view, that unless there is a Certificate the Electoral Commissioner cannot set a date for a by-election, for example, or that a new proportionately elected member be sworn in. Indeed, it was suggested, quite rightly in my view too, that until 30 days had elapsed, a replacement of a proportionately elected member should not be sworn in, because if a case is filed before the Constitutional Court the incumbent remains a member of the National Assembly according to the Constitution.
The chairman of the Constitutional Court has set 23rd September as the date to deliver its judgement.
This is unfortunate as the issue is very clear cut and pressing. There is no “conclusive evidence” that Frank Elizabeth is no longer a member of the National Assembly or that his seat has become vacant because the evidence required by the Constitution, i.e. the Certificate, signed by the Speaker, does not exist (See Article 81(6)). Surely, the Constitutional Court cannot find otherwise, however long it takes for them to ponder over the issue.