IN THE SEYCHELLES COURT OF APPEAL
[Coram: F. MacGregor (PCA) ,A.Fernando (J.A) ,M. Twomey (J.A)
F. Robinson (J.A), L. Tibatemwa-Ekirikubinza (J.A)]
Constitutional Appeal SCA CP02& 05/2019
(Appeal from Constitutional Court Decision CP 01/2018)
Alexander Geers | Appellant | |
Versus | ||
The Attorney-General The Minister for Home Affairs & Local Government The Attorney-General, Mr. Frank Ally | 1st Respondent 2nd Respondent
3rd Respondent |
Heard: 06 December 2019
Counsel: Mr. J. Camille for the Appellant
Mr. S. Knights for the Respondents
Delivered: 17 December 2019
JUDGMENT
A.Fernando (J.A)
The Appeal:
1. The Petitioner and Respondents to Constitutional case numbered CC 01 0f 2018, have filed an Appeal and a Cross-Appeal respectively, against the judgment of the Constitutional Court dated 31st May 2019. In view of this, hereinafter the Petitioner will be referred to as the Petitioner-Appellant, and the Respondents, as the Respondent-Appellants in this judgment.
Judgment of the Constitutional Court:
2. In the majority judgment of the Constitutional Court the following orders had been made:
i. “The second respondent has a statutory duty to make and issue regulations under section 4 and 54(1) of the Misuse of Drugs Act;
ii. The Petitioner had failed to establish that the failure to make and issue regulations under the provisions in (a) constitutes a violation of the Charter.
iii. The second respondent is ordered to issue regulations within 24 months, which regulations will have prospective effect.” (verbatim)
3. In making this order the Constitutional Court had partly granted by its orders of (i) and (iii) referred to in paragraph 2 above, only the second prayer of the Petitioner-Appellant in his Petition filed before the Constitutional Court, namely, “Issue a writ of mandamus against the 2nd Respondent ordering her to immediately make regulations under the Misuse of Drugs Act 2016 to regulate the possession, use, sale, supply, prescription or other dealing in, or the manufacture or importation or exportation of, any controlled drug for medicinal or scientific purposes”.
4. The other three prayers of the Petitioner-Appellant, namely to make a declaration that the 1st Respondent’s failure to make the regulations referred to at paragraph 3 above is a contravention of the Constitution; to make an order on the 2nd Respondent to give the said regulations retrospective effect, to apply from the date the Misuse of Drugs Act came into operation; and to issue a writ of certiorari to curtail and stop the trial in Criminal Side No 27 of 2017, in Republic v/s Alexander Geers & ors; have not been granted by the Constitutional Court.
Grounds of Appeal of the Petitioner-Appellant:
5. The Petitioner-Appellant had filed the following grounds of appeal:
i. “The Honourable Constitutional Court erred in law in failing to find and hold that the Appellant’s right to a fair hearing, in accordance with Article 19 of the Constitution of Seychelles, was actual and likely and violated, in his trial, namely Criminal Side No 27 of 2017, before the Supreme Court of Seychelles.
ii. The Honourable Constitutional Court erred in law in failing to find and hold that the violation of the Appellant’s rights, the 2nd Respondents breach of her statutory duties and the law, and non-access to the regulations as per the Misuse of Drugs (Amendment) Act 2016, deprived the Appellant of an apparent and alternatively possible defence and therefore a right to a fair trial.
iii. The Honourable Constitutional Court erred in law in failing to order that the new regulations to be made and passed by the Respondents, should have retroactive effect.” (verbatim)
The Petitioner-Appellant by way of relief has prayed that the Constitutional Court judgment of the 31st of May 2019 be dismissed and be amended in part with costs for the Appellant in Seychelles Court of Appeal.
Grounds of appeal of the Respondent-Appellants:
6. The Respondent- Appellants in filing a Notice of Cross-Appeal has contended that the decision of the Constitutional Court judgment of the 31st of May 2019 “ought to be varied to the extent and in the manner and on the grounds set out” in their Notice of Cross-Appeal, namely that the Court of Appeal “set aside the order of mandamus issued by the Constitutional Court and find that there was no mandatory obligation on the 1st and 4th(sick) Appellants to make regulations under sections 4 and 54 of the Misuse of Drugs Act 2016 on the grounds that:
i. The learned Justice Burhan (the majority judgment) misapplied article 46(5)(c) of the Constitution of the Republic of Seychelles and issued a mandamus even though the learned judge found that there was no infringement on the Petitioner’s rights under article 16, 18, 19, 24 and 29 of the Constitution.
ii. The learned Honourable Constitutional Court erred in law in finding that sections 4 and 54 of the Misuse of Drugs Act 2016 impose a statutory duty on the second respondent.
iii. The learned Honourable Constitutional Court misconstrued the words ‘medical or scientific purposes’ introduced in the Misuse of Drugs Act 2016 as being a material change in the legislative scheme of the Misuse of Drugs Act 1990.
iv. The learned Honourable Constitutional Court erred in law by finding that the regulations made under the Misuse of Drugs Act 1990 and later saved under the Misuse of Drugs Act 2016 through savings provisions are interim solutions to prevent gaps in the law until regulations were made under the 2016 Act.” (verbatim)
Case before the Constitutional Court in brief:
7. The Petitioner-Appellant, a Hotel Manager and an inhabitant of Belombre, had filed a petition before the Constitutional Court on the 29th of January 2018. According to the petition he had been on the 13th of June 2017, “charged with the offence as per section 9(1) of the Misuse of Drugs Act 2016, i.e. possession of cannabis with the intent to traffick in the controlled drug in criminal side No 27 of 2017…” and the case is proceeding before the Supreme Court. Thus, the constitutional petition had been filed after the institution of criminal proceedings against the Petitioner-Appellant.
8. The Petitioner-Appellant had averred that the Misuse of Drugs Act (MODA) 05 of 2016 came into operation on the 1st of June 2016. The said Act according to the Petitioner has stated at section 4(1) that “a controlled drug may be manufactured, imported or exported and dealt with in Seychelles for medical or scientific purposes in accordance with regulations made under this Act”. He had then gone on to cite section 54(1) of the said Act which provides that “the Minister may, in consultation with the Minister responsible for Health, make regulations for carrying into effect the objectives and purposes of this Act”; and section 4(2) which provides that “In any proceedings under this Act a person claiming to have acted pursuant to a provision of this Act or to regulations made under sub-section (1) shall bear the burden of proving that fact”. The Petitioner has also made reference to the preamble which in setting out the purpose of the Act states: “… ensure the availability of controlled drugs for legitimate medical and scientific use…”
9. It had been the position of the Petitioner-Appellant that up to the filing of his petition no regulations have been made in accordance with sections 4 and 54 of the Misuse of Drugs Act 05 of 2016 and thus the 2nd Respondent-Appellant had failed, refused or neglected to comply with her statutory duty. The Petitioner-Appellant had however not averred that he had urged any of the Respondents to make the regulations.
10. The Petitioner-Appellant had averred that for the past 7 years prior to filing of the petition he had lobbied, supported and canvassed for the legitimization of cannabis for research and scientific and medical purposes, to the knowledge of the Respondents and corresponded and held seminars with the Respondents and other persons and institutions set out in the petition. There is no mention of anyone, with whom he had done research or medical doctor or scientist with whom he had discussed the issue of medical or scientific research as to the curative and beneficial effects of marijuana. There are many non-medical or non-scientific persons, who support the legalisation of marijuana for medical and other purposes, but not all of them would be able to cultivate or possess marijuana with impunity under the MODA or its regulations.
11. The Petitioner-Appellant had averred of the allegedly proven curative and beneficial effects of marijuana for several chronic diseases. He had averred that “many countries of the world have now legalized the use of marijuana not only for medical and scientific purposes but also for recreational use and have passed laws and regulations to provide for its possession, use, manufacture, import and cultivation”. He had averred that cancer patients he had spoken to in the Seychelles had expressed the wish to try marijuana to counter the side effects of cancer treatment and to manage the disease and the absence of regulations will make them suffer.
12. The Petitioner-Appellant had averred that upon the enactment of the Misuse of Drugs Act 2016 he had “carried out research in cannabis for a scientific and medical purposes, at a house at Belombre”. (emphasis added) The Petitioner who has described himself as a hotel manager has not however in the petition referred to any qualifications or experience in the field of medicine or science, which would qualify himself to be a medical or scientific researcher, the type of research he had carried out or the laboratory facilities that was available to him.
13. It has been the Petitioner-Appellant’s complaint that his right to a fair hearing has been and continues to be infringed by the Respondents refusal or failure to enact the required regulations under the Misuse of Drugs Act 2016. It is his position that a purposeful reading of section 4(1) and 4(2) of the Act and had the Respondents passed the pertinent regulations, he would have been afforded a valid and outright defence under the Act and lawful protection. He had thus averred that the failure, refusal or negligence of the Respondents to provide a “partial legal framework should not allow the 1st and 3rd Respondent , to pursue a criminal action against him and such a prosecution violates his constitutional rights, including to a fair hearing (Article 19(7) Cap42)…” (emphasis added), among other rights he had set out in the Petition, namely articles 16, 18, 24(1)(a) and 29. I have restricted myself to the Petitioner-Appellant’s complaint against violation of his right to a fair hearing since in challenging the judgment of the Constitutional Court before the Court of Appeal he had restricted himself to the violation of his right to a fair hearing under article 19(7) .
14. The indictment in the Criminal side No 27 of 2017 referred to in the petition and which I have called for and perused, had charged the Petitioner-Appellant as follows:
“Count 1
Statement of Offence
Possession with intent to traffick in a controlled drug namely cannabis herbal materials contrary to section 9(1) of the Misuse of Drugs Act 2016 and punishable under section 7 (1) of the Misuse of Drugs Act, 2016
Particulars of offence
Albert Alexander Roderick Geers of Belombre, Mahe, on 30th May 2017 to 31st May 2017 at his residence in Belombre, Mahe possessed the controlled drug having net weight of 3.945 kilo grams of Cannabis unlawfully with intent to traffick in contravention of the said Act committed the offence of trafficking.
Count 2
Statement of Offence
Cultivation of a controlled drug namely Cannabis Plants contrary to section 6(2) of the Misuse of Drugs Act 2016 and punishable under the Second Schedule the Misuse of Drugs Act 2016.
Particulars of offence
Albert Alexander Roderick Geers of Belombre, Mahe, on 31st May 2017 at his residence in Belombre, Mahe possessed 49 cannabis plants in doing cultivation.” (verbatim as per Indictment).
15. The Petitioner does not explain why he had as much as 3.945 kg of cannabis or 49 cannabis plants for research purposes.
16. I am at a loss to understand why the Petitioner-Appellant had referred to article 19(7) in respect of the violation of his right to a fair hearing; and the Constitutional Court had proceeded to hear the case and give judgment on the same lines; when the reference should, if at all, have been to article 19(1) of the Constitution. Rule 5(1) of the Constitutional Court Rules requires: “A petition …shall…refer to the provision of the Constitution that has been allegedly contravened or is likely to be contravened…”. This is because the complaint of the Petitioner-Appellant as stated at paragraph 13 above is the pursuit of a ‘criminal action’ as contemplated by article 19(1) against him by the Respondent-Appellants and not a complaint regarding the institution of proceedings to determine the existence or extent of any civil right as referred to by article 19(7).
17. I hereby set out the provisions in articles 19(1), (2) and 19(7) of the Seychellois Charter of Fundamental Rights pertaining to the Right to a fair and public hearing and which have a bearing on this case:
“19. (1) Every person charged with an offence has the right, unless the charge is withdrawn, to a fair hearing within a reasonable time by an independent and impartial court established by law.
(2) Every person who is charged with an offence-
(a) is innocent until the person is proved or has pleaded guilty;
(b) shall be informed at the time the person is charged or as soon as is reasonably practicable, in, as far as is practicable, a language that the person understands and in detail, of the nature of the offence;
(c) shall be given adequate time and facilities to prepare a defence to the charge;
(d) has a right to be defended before the court in person, or, at the person’s own expense by a legal practitioner of the person’s own choice, or, where a law so provides, by a legal practitioner provided at public expense;
(e) has a right to examine, in person or by a legal practitioner, the witnesses called by the prosecution before any court, and to obtain the attendance and carry out the examination of witnesses to testify on the person’s behalf before the court on the same conditions as those applying to witnesses called by the prosecution;
(f) shall, as far as is practicable, have without payment the assistance of an interpreter if the person cannot understand the language used at the trial of the charge;
(g) shall not be compelled to testify at the trial or confess guilt;
(h) shall not have any adverse inference drawn from the exercise of the right to silence either during the course of the investigation or at the trial; and
(i) shall, except with the person’s own consent, not be tried in the person’s absence unless the person’s conduct renders the continuance of the proceedings in the person’s presence impracticable and the court has ordered the person to be removed and the trial to proceed in the person’s absence.
……………………………………………………..
(7) Any court or other authority required or empowered by law to determine the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial, and where proceedings for such a determination are instituted by any person before such a court or other authority the case shall be given a fair hearing within a reasonable time.”
18. The Petitioner-Appellant has invoked the jurisdiction of the Constitutional Court under the provisions of article 46(1) which reads as follows:
“46.(1) A person who claims that a provision of this Charter has been or is likely to be contravened in relation to the person by any law, act or omission may, subject to this article, apply to the Constitutional Court for redress.”
19. Even if we are to ignore the erroneous reference to article 19 (7) and take the petition as referring to article 19(1), the question arises whether the refusal, failure or negligence to enact the regulations under MODA 2016 by the Respondent-Appellants have contravened or is likely to contravene any of the guaranteed rights of the Petitioner-Appellant under article 19(1) or (2) above. In my view failure to provide, even if that had been the case, a legal framework under MODA 2016 under which the Petitioner-Appellant could have taken cover in a prosecution instituted against him certainly does not come within the ambit of a guarantee of a fair hearing to a person facing a criminal prosecution or a civil suit before a court. It is not possible to give such a wide interpretation to the words “shall be given a fair hearing”. In the circumstances of this case, the concept of “fair hearing” in article 19, is something that should be given a meaning within the ambit of the judicial branch of a State and more within the court structure and cannot spill over to the Legislative or Executive branches of the State. If that were to happen persons against whom prosecutions have been instituted under the existing domestic laws of a country will start complaining to the Constitutional Court; of the failure of the Legislature to amend the laws, to fall in line with the legal developments taking place in other countries in relation to LGBT rights, euthanasia, abortion, and legalization of marijuana for recreational purposes. Both in articles 19(1) and 19(7) the obligation is cast on the court to ensure that a person is granted a “fair hearing”. I am not unmindful of the role of the Legislative and Executive branches in not providing for an independent and impartial court or the Executive being responsible for delays in instituting litigation.
20. For the reasons enumerated above I am in agreement with the majority decision of the Constitutional Court that the Petitioner’s argument regarding violation of his right to a fair hearing cannot be sustained. I agree with their finding: “The Petitioner is not a medical expert nor a scientist, but a strong proponent for the medical benefits of cannabis. However, the law in its present form makes it clear that cannabis cannot be manufactured or sold for medical purposes, and such conduct is criminal. The law is clear and unambiguous in its present form, and the possibility of regulation cannot be used to ground a defence, and the failure to regulate does not deny the Petitioner a valid defence…” The Constitutional Court had dismissed the Petitioner-Appellant’s complaint regarding violation of his fundamental rights under articles 16,18, 24 and 29 of the Charter and as stated at paragraph 13 above I shall not deal with them as there is no appeal against the dismissal of the said complaints.
21. I therefore dismiss the Petitioner-Appellant’s first, second and third grounds of appeal.
22. This then brings me to the question raised in ground (i) of the Notice of Cross-Appeal raised by the Respondent-Appellants referred to at paragraph 6 above.
23. Article 46(5) of the Fundamental Rights Charter states:
“Upon hearing of an application under clause (1) the Constitutional Court may-
(a) declare any act or omission which is the subject of the application to be a contravention of the Charter;
(b) declare any law or the provision of any law which contravenes the Charter void;
(c) make such declaration or order, issue such writ and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of the Charter and disposing of all the issues relating to the application;
(d) award any damages for the purpose of compensating the person concerned for any damages suffered;
(e) make such additional order under this Constitution or as may be prescribed by law.”
It is clear on a reading of article 46(1) of the Charter referred to at paragraph 18 above that the issue of redress under article 46(5)(c) arises only when a person has successfully established before the Constitutional Court that a provision of the Charter has been or is likely to be contravened in relation to him by any law, act or omission. The need to make an order under article 46(5)(c) arises “for the purpose of enforcing or securing the enforcement of the Charter” which has been or is likely to be contravened. Granting of any relief under article 46(5) is necessarily linked to article 46(1). Part IV of Chapter III of the Constitution is restricted to constitutional remedies. This becomes clear on a reading of article 129 of the Constitution, which restricts matters relating to the contravention of the Constitution to the jurisdiction of the Constitutional Court. To interpret it otherwise would mean that litigants will come before the Constitutional Court seeking injunctions, directions, orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto against subordinate courts, tribunals and adjudicating authorities and damages arising from delicts or breach of contract; even where there has not been a violation of a charter provision.
24. Part IV of Chapter III cannot be made use of to seek relief that could be granted by the Supreme Court in the exercise of its supervisory jurisdiction under article 125(1)(c). Article 125 (1) states 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”
25. This is made further clear by article 46(8) of the Charter which places the burden of establishing a prima facie case that there has been a contravention or risk of contravention on the Petitioner. It is only after such burden is discharged, the burden shifts to the State to prove that there has not been a contravention or risk of contravention. Thus establishing that there has been on the face of it a contravention or likely contravention and the person invoking the jurisdiction of the Constitutional Court has locus standi are threshold issues that has to be determined before considering the substantive claim of a contravention or likely contravention. It is for this reason that the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules of April 1994 made under article 46(10) of the Constitution in relation to the jurisdiction and powers of the Constitutional Court specifically lays down in rule 5(1) that a petition to the Constitutional Court “shall refer to the provision of the Constitution that has been allegedly contravened or is likely to be contravened.”
26. The Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules of April 1995 made under article 136(2) of the Constitution as Rules of the Supreme Court would be rendered nugatory if the remedies under article 125(1)(c) can be granted under article 46(5)(c). The procedure to be adopted to invoke the jurisdiction under articles 125 (1) (b) has been clearly set out in the Seychelles Code of Civil Procedure and the Criminal Procedure Code. It will be an unruly hodgepodge if the jurisdiction of the Constitutional Court is to be invoked in respect of the several and different jurisdictions set out in article 125(1).
27. It must however be stated that where the Constitutional Court on an application under clause (1) is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned in any other court under any other law, the Court may hear the application or transfer the application to the appropriate court for grant of redress in accordance with law. That is where the Constitutional Court is satisfied that there has been a contravention of the Constitution but adequate means of redress for the contravention are available.
28. In Nolin V Attorney General[1996-1997] SCCA 127 this Court said: “The Constitutional Court is empowered to make declarations or orders and issue writs, and also award damages…when it has been established that a provision of the Charter of Fundamental Human Rights and Freedoms has been or likely to be contravened. Judicial review of an administrative action which does not involve a breach of the Constitution but only of an empowering statute as alleged in the instant case, is within the supervisory powers of the Supreme Court and not a matter for the Constitutional Court. Thus for the purpose of determining this appeal it would suffice to state that as the fundamental right of the appellant has not been infringed the Constitutional Court was right in not making any consequential declaration and order as prayed for in the appellants petition. That, in short, is the kernel of this judgment.”
29. In the case of Citra Hoareau V Attorney General, civil appeal No. 42 of 1999 decided in April 2000, the crux of the decision of this Court, was to the effect that the Constitutional Court, before granting the remedies under article 130(4)(c) had to “determine whether in the first place there had been a contravention of the Constitution as alleged.” The Court went on to say: “What is essential, in our view, is the finding of the Constitutional Court with regard to the alleged unconstitutionality of the act or omission.” This Court however said that the failure to pray for a declaration under article 130(4) (a) or (b) in the petition did not make the petition defective so long as the Constitutional Court makes a finding that there has been a contravention of the Constitution.
30. In Chowdhuri V Union of India and Others[1950] 2 SCR 1113, a shareholder challenged the validity of legislation which affected a take-over of control of the affairs of a company on grounds that the Act was not within the legislative competence of Parliament and also infringed his fundamental rights of property. The Supreme Court by a majority held there was no violation of any fundamental right and dismissed the application under articles 32 for a writ of mandamus to enforce these rights and for a declaration that the Act was void ultra vires, without going at all to the latter question.
31. Article 32 of the Constitution of India which deals with remedies for enforcement of Fundamental Rights conferred by Part III of the Constitution states: “(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.” It is to be noted that article 32(2) of the Indian Constitution is similar to article 45(6)(c)of the Seychelles Constitution, for under article 32(2) the power to issue directions or orders or writs therein is for the enforcement of any of the fundamental rights conferred by Part III.
32. Mukherjea J saidin Chowdhuri V Union of India and Others at p 1115 that: “Article 32 as its provisions show, is not directly concerned with the determination of constitutional validity of particular legislative enactments. What it aims at is the enforcing of fundamental rights guaranteed by the Constitution, no matter whether the necessity for such enforcement arises out of an action of the executive or of the legislature. To make out a case under this article, it is incumbent upon the petitioner to establish not merely that the law complained of is beyond the competence of the particular legislature…but that it affects or invades his fundamental rights guaranteed by the constitution, of which he could seek enforcement by an appropriate writ or order.”
33. In Raj Kapur V State of Punjab {1955] 2 SCR 225, certain executive action of the Education Department of the State in taking over exclusively the printing, publishing and selling of text books for prescribed schools was questioned, under article 32, as infringing the fundamental right to carry on any trade or business, and as an unlawful monopoly established without legislation passed in the manner laid down in the Constitution. The petition was dismissed. Mukeherjea CJ said at p 239 “…even if the acts of the executive are deemed to be sanctioned by the legislature, yet they can be declared to be void and inoperative if they infringe any of the fundamental rights of the petitioners guaranteed under Part III of the Constitution. On the other hand, even if the acts of the executive are illegal in the sense that they are not warranted by law, but no fundamental rights of the petitioners have been infringed thereby, the latter would obviously have no right to complain under article 32 of the Constitution though they may have remedies elsewhere if other heads of rights are infringed…”
34. Basu in his Commentary on the Constitution of India, Vol 2 (5th edn) states: “The sole object of article 32 is the enforcement of the fundamental rights guaranteed by the Constitution. Whatever other remedies may be open to a person aggrieved, he has no right to complain under Article 32, where no ‘fundamental’ right has been infringed. For the same reason, no question other than relating to a fundamental right will be determined in proceeding under Art. 32.”
35. Since the Constitutional Court had concluded that there has not been any violation of the Petitioner-Appellant’s fundamental rights; and specifically stated in its Order at paragraph (ii), referred to at paragraph 2 above, that the Petitioner has failed to establish that the failure to make and issue regulations under the provisions of Sections 4 and 54(1)(a) of the Misuse of Drugs Act constitutes a violation of the Charter; the Constitutional Court had erred in making its orders at paragraphs (i) and (iii),referred to at paragraph 2 above.
36. I therefore quash the orders (i) and (iii) made by Constitutional Court in allowing the first ground of appeal raised by the Respondent-Appellants. In view of the dismissal of all three grounds of appeal of the Petitioner-Appellant and allowing ground (i) of appeal raised by the Respondent-Appellants the need to determine the rest of the grounds of the Respondent-Appellants do not arise for consideration.
37. The appeal of the Petitioner-Appellant is therefore dismissed and the appeal of the Respondent-Appellants is allowed by setting aside the order of mandamus issued by the Constitutional Court on the 2nd Respondent and the order to issue regulations within 24 months of the order of the Constitutional Court. I make no award as to costs.
A. Fernando (J.A)
I concur:. …………………. F. MacGregor (PCA)
I concur:. …………………. F. Robinson (J.A)
Signed, dated and delivered at Ile du Port on17 December 2019
IN THE SEYCHELLES COURT OF APPEAL
[Coram: F. MacGregor (PCA) ,A.Fernando (J.A) ,M. Twomey (J.A)
F. Robinson (J.A), L. Tibatemwa-Ekirikubinza (J.A)]
Constitutional Appeal SCA CP 02 & 05/2019
(Appeal from Constitutional Court Decision CP 01/2018)
Alexander Geers | Appellant | |
Versus | ||
The Attorney-General The Minister for Home Affairs & Local Government The Attorney-General | 1st Respondent 2nd Respondent
3rd Respondent |
Heard: 06 December 2019
Counsel: Mr. J. Camille for the Appellant
Mr. S. Knights for the Respondents
Delivered: 17 December 2019
JUDGMENT
L. Tibatemwa-Ekirikubinza (J.A)
Consideration of the Court.
1. I have had the opportunity of reading in draft the judgment of my Learned Brother A. Fernando JA in which he clearly sets out the relevant background in this matter and I need not repeat it here. I agree with his decision in regard to the appeal brought by Alexander Geers that it be dismissed. I however respectfully differ from his analysis and decision regarding the cross-appeal. Consequently, my judgment is limited to the cross appeal. In this judgment therefore Alexander Geers will be referred to as the respondent and the other parties as the appellants.
2. I will first consider ground 3 and thus deal with the question whether the use of the words “medical or scientific purposes” in the 2016 Misuse of Drugs Act hereinafter referred to as MODA (2016) resulted into a material change in the legislative scheme of the Misuse of Drugs Act 1990 hereinafter referred to as MODA (1990). This would answer the question: did the 2016 enactment result into a fundamental change in the regulation regime of controlled drugs. This would lead to grounds 2 and 4 which I will consider together. The two grounds are concerned with the nature of the duty of the Ministers under Sections 4 and 54 of the MODA (2016). I will then deal with ground 1 which questions the validity of the writ of mandamus issued by the Constitutional Court. Did the Supreme Court have the power to issue a mandamus?
Ground 3
3. The essence of ground 3 of the Cross Appeal is whether the purpose of the Misuse of Drugs Act (1990) is fundamentally different from that of the 2016 Act or at the very least: did the new Act result into a material change in the regulatory framework of controlled drugs?
4. The Long Title to the Misuse of Drugs Act (1990) states its purpose as being to “provide for the control of dangerous or harmful drugs, the confiscation of the proceeds of drug trafficking and the treatment of drug addicts, and for connected purposes.”
5. Part 1 entitled “Preliminary” has two sections and the first section, sets out the short title of the Legislation. From its reading, one can safely conclude that the essence and focus of the Act was to ensure non-availability and non-exposure of the drugs in question to the citizens of the country so as to protect them from negative health effects of uncontrolled use.
6. On the other hand, the purpose of the 2016 Act is wider. In addition to its focus on the need to protect citizens from drug abuse and on treatment of drug dependent persons as was the case with the 1990 Act, the long title to the latter Act also purposes to facilitate implementation of Seychelles’ commitment under the international drug control conventions. A further objective spelt out in the Long Title is to ensure the availability of “controlled” drugs for legitimate medical and scientific use. Furthermore, under its part 1 entitled “Preliminary” the 2016 Act has a Section (Section 4) which specifically provides for legitimate activity involving controlled drugs. The Section states that:
(1) A controlled drug may be manufactured, imported or exported and dealt with in Seychelles for medical or scientific purposes in accordance with regulations made under this Act.
7. I therefore posit that the new Act changed the legislative “scheme”- objective of the 1990 Act. Unlike the 1990 Act, the 2016 Misuse of Drugs Act clearly envisages the use of controlled drugs for scientific purposes.
Ground 3 fails.
Grounds 2 and 4
8. I opine that whether Sections 4 and 54 impose a duty on the Ministers to pass new regulations and whether or not the regulations made under the 1990 Act but saved under the 2016 Act were only interim in nature is linked to the resolution of ground 3 dealt with above.
9. If the 2016 Act was a fundamental change in the law are the 1990 regulations capable of effecting the objectives of the new regime?
10. Does the absence of regulations specifically made under the 2016 Act violate the rights of persons who need to use controlled drugs for medical purposes?
11. Under Section 44 (1) of the 1990 Act the Minister of Home Affairs made regulations for carrying into effect the purposes and provisions of the Act. It was stated that the regulations were in regard to among other things (a) authorization of the possession, sale, supply, prescription or other dealing in a controlled drug and prescribing the circumstances and conditions under which the controlled drug may, among other things be … prescribed or otherwise dealt with … (emphasis of Court)
12. I find that on the face of Section 44, the regulations thereunder could deal with instructions by a medical practitioner authorizing a patient to be issued with a controlled drug as treatment – an issue which was of concern to the respondent. Question: was this provided for under the Regulations?
13. A reading of the regulations passed under the 1990 Act reveals that the said regulations recognize the legitimate use of some controlled drugs for medical purposes and thus the regulations permit the manufacture, possession, sale, prescription etc of specified controlled drugs. However cannabis which the petitioner (now respondent) is specifically interested in as a possible drug is not provided for. It is not within the mandate of the court to determine that cannabis be approved as medicine in the Seychelles. Such is the mandate of technocrats. For this reason, I would uphold the decision of the Supreme Court that the petitioner failed to prove that the inaction of the responsible ministers violated the right to health.
14. However, the regulations are silent in regard to the possible use of controlled drugs for scientific purposes and thus fall short of widening of the law to ensure the availability of “controlled” drugs for legitimate scientific use.
15. The appellants submitted that saving provisions can in fact be a long time preservation of the law or Regulation. On the other hand the respondent submitted that the only irresistible reference that can be drawn from the provision of Section 55 (3) of the MODA 2016 is that the Regulations which were made under the repealed 1990 MODA were transitory in nature and only provided an interim solution.
16. A saving clause is a clause in a statute limiting the scope of repeal of prior statutes.1 A savings provision is also “a provision the intention of which is to narrow the effect of the enactment to which it refers so as to preserve some existing legal rule or right from its operation”.2
17. The savings provision found in Section 55 (3) of the Act provides as follows:
“Notwithstanding the repeal under Section (1), statutory instruments made under the repealed Act that are in operation immediately prior to the date on which this Act comes into operation shall continue in operation until amended or repealed under this Act.”
18. On the other hand, Section 54 (1) provides that:
“The Minister may, in consultation with the Minister responsible for health, make regulations for carrying into effect the objectives and purposes of this Act.”
19. In order to determine whether or not circumstances existed to oblige the ministers to issue new regulations, one must answer the question: Are the regulations made under the 1990 Act adequate for purposes of effecting the objectives of the new Act? If a reading of the regulations leads to the conclusion that the new aspects in the law cannot be adequately effected using the regulations in place, then the Ministers are under duty to either amend the existing regulations or to pass entirely new regulations.
20. Where Court is of the view that an important element of a regulatory scheme to be implemented by the executive is carefully and clearly crafted by the Legislature, the saving language will not be allowed to thwart that scheme.3 In the case before us, an important element of the regulatory scheme - the availability of controlled drugs for legitimate scientific use – was carefully and clearly crafted by the Legislature in the 2016 Act but the element is not covered by the saved regulations. Consequently the saving language in Section 55 (3) of the 2016 Act cannot be used by the executive as an excuse for not making passing the necessary regulations.
21. The above reasoning also resolves the argument of the appellant based on use of the word “may” in Sections 4 (1) and 54 (1) of the 2016 Act. It was the argument of the appellant that the word gives Government a discretionary power to lay Regulations before the National Assembly. And that there were no compelling circumstances in the instant case to warrant the exercise of the Minister’s discretion.
22. The Sections provide as follows:
Section 4 (1):
“A controlled drug may be manufactured, imported or exported, and dealt with in Seychelles for medical or scientific purposes in accordance with regulations made under this Act.”
Section 54 (1):
“The Minister may, in consultation with the Minister responsible for health, make regulations for carrying into effect the objectives and purposes of this Act.”
23. In the view of this court the circumstances pointed out in the analysis of the effect of the “saving” provision is applicable to the significance of the use of the word “may” as opposed to “shall” in a provision. In determining whether a statutory provision is mandatory or directory in character, court must among other things consider the objective of the statute or provision and the consequence which would follow from the alternative interpretation. The court cannot exclusively base its determination of the issue on a single word. Where Court is of the view that an important element of a regulatory scheme to be implemented by the executive is carefully and clearly crafted by the Legislature, the use of the word “may” will not be allowed to thwart that scheme. In the persuasive authority of Julius vs. Lord Bishop of Oxford4 the court held that:
“There are circumstances where, despite the permissive nature of the language, compelling circumstances will make it obligatory for the authority to exercise its power.”
24. In the matter before this Court, “, despite the permissive nature of the language (through the use of the word “may”), compelling circumstances … make it obligatory for the authority to exercise its power.”
25. Consequently, I would uphold the finding of the Constitutional Court that the appellants have a statutory duty to issue Regulations under MODA 2016. The regulations would inter alia give directions in regard to the availability of controlled drugs for legitimate scientific use.
Grounds 2 and 4 fail.
Ground 1
26. Whether the court can order Ministers to draft regulations under MODA 2016 and lay them before the National Assembly where there are no compelling circumstances to mandate the exercise of the power conferred on the Ministers to issue regulations.
27. Having made a finding that the Ministers had a statutory duty to issue “new” regulations, what remains to be resolved under this ground is whether the court had power to issue the writ of mandamus.
28. The appellants argued that the writ of mandamus which directed the Minister to enact Regulations under the new Act amounted to usurping the powers of the legislature and the executive and thereby led to abuse of the principle of separation of powers. The appellants further argued that the Court has no control on the executive arm of Government to direct it to enact Regulations. That the enactment would be done by the executive if and when it feels that the legal and political environment is correct. Counsel submitted that the only exception to the foregoing would be in circumstances when the Regulation is mandatory for the operation of an enactment which is not so in the present case.
29. The doctrine of Separation of powers has been defined in Merriam-Webster dictionary as a doctrine under which the legislative, executive, and judicial branches of government are not to infringe upon each other's constitutionally vested powers.5 It serves to limit one branch from exercising the power of another.
30. However it is a trite principle of law that where an executive authority or Government is not carrying out its duty, a court of law can through a writ of mandamus order the performance of that duty. Good governance requires that laws are promulgated for purposes of regulating the actions of citizens and of institutions. Under Article 85 of the Constitution, it is the legislature which is mandated and authorized to enact laws. This is a constitutional obligation. Under Article 89, the legislature can, through an Act of Parliament confer on an authority or a person, the power to make subsidiary legislation. It is in line with this provision that the MODA authorized the Ministers to make regulations. The duty delegated to the Ministers was equally a constitutional duty. However, this constitutional obligation is not linked but is rather independent of the provisions enumerating and protecting the human rights and freedoms to be enjoyed by the people of Seychelles. Consequently, where there has been a failure in carrying out this constitutional obligation, a writ of mandamus can be issued to ensure the carrying out of that duty.
31. In the persuasive English authority of R vs. Archbishop of Canterbury6, it was held that: “Interference by the Court is warranted when an executive authority is not exercising its power bonafide for the purposes contemplated by law or is influenced by extraneous consideration or is acting arbitrarily.” (Emphasis of the Court).
32. In such circumstances, the enforcement of the statutory duty by courts does not amount to abuse of the doctrine of separation of powers but rather ensures a system of checks and balances.
33. The judicial writ of mandamus issued to the Ministers is legitimate because the failure to act is failure to carry out a constitutional obligation. The court has the authority to compel the executive to do what they are constitutionally obliged to do.
34. What I must however emphasise is that the court must nevertheless exercise caution not to violate the principle of separation of powers when exercising its judicial authority. I note that in the present matter the Constitutional court in issuing the writ of mandamus was careful not to abuse the doctrine of separation of powers. Judge Burhan, stated that:
“We therefore agree that Court must be mindful of the separation of powers in this matter, and our decision gives the necessary and constitutional deference to the Executive and Legislative branches of government in accordance with Constitution and Seychellois jurisprudence.
In this instant case all this Court has done is what it is empowered to do, interpret the law and in doing so and having concluded that the law indicates that MODA 2016 requires new regulations to be enacted, it cannot be said that this has resulted in the Judiciary intruding into the powers of the Executive and Legislature. The manner which the Executive regulates the use of scheduled drugs for scientific and medicinal purposes is beyond the expertise and jurisdiction of this Court. Our inquiry is therefore limited to whether an obligation exists to make regulations, which we have found it to, and whether that obligation has been discharged, which it has not. In reviewing the conduct of the different branches of government for constitutional and legal compliance, the Court is able to evaluate both positive conduct and, as in this case, the absence of conduct in this regard.”
35. The Court does not have the authority to determine the content of the regulations but has the authority to order a person who has failed to perform their statutory duty to do so. Further still, the court would not determine whether it is an amendment or a repeal that is required of the executive.
36. It would have been abuse of the doctrine of separation of powers if the Constitutional Court had, in addition to compelling the executive to perform a particular duty – make regulations - directed the executive authority on specific contents of the regulations. The court would have violated the principle of separation of powers if it had directed the Ministers to approve cannabis as medicine in the Seychelles. The court did not.
37. I therefore see no merit in the appellants’ argument that by issuing a writ of mandamus, the Constitutional Court abused the doctrine of separation of powers.
38. In addition to the argument that the court’s issuing of a mandamus amounted to the abuse of separation of powers, the appellants also faulted the constitutional court for finding that there was no contravention of the petitioner’s constitutional rights and then going ahead to issue a remedy under Article 46(5) (c) of the Constitution. In support of the aforementioned argument, the appellants relied on this Court’s decision in Maryliane Nolin vs. Attorney General7 where it was held that:
“The Constitutional Court is empowered to make declarations or orders and issue writs, and also award damages … when it has been established that a provision of the charter of fundamental human rights and freedoms has been or is likely to be contravened. This does not entitle the Court to exercise the supervisory jurisdiction of the Supreme Court to declare that the Minister has not used his discretion correctly.”
39. On the other hand the respondent submitted that Article 46 (5) of the Constitution vests immense powers on the court to make “such additional order” under the Constitution. The respondent also argued that Article 46 does not impose an obligation on the Constitutional Court to first make a finding of unconstitutionality before granting a constitutional remedy. It merely places an obligation on the Court to hear the application. Therefore, the Court has the power to make any order even in the absence of a finding of unconstitutionality.
40. I opine that the authority of Maryliane Nolin (supra) can be distinguished from what is before us. In the Nolin case the court did not make a finding that the executive had failed in any of its duties, a finding which the Constitutional Court in the present matter made in regard to the failure of the Minister to make regulations for purposes of dealing with controlled drugs for scientific purposes.
41. Mandamus is a judicial remedy in the form of an order from a Court to a government, a public body, tribunal or quasi-judicial body to do a particular thing. The writ lies more to authorities who fail in their duty to perform certain acts and not to a violation of a particular right.8 In other words, it also deals with wrongful inaction.9
42. It is worth noting that the writ of mandamus is at the court’s discretion. The court has to be satisfied that there is a legal duty of a public nature before issuing the writ. I am satisfied that Section 54 (1) of the MODA, 2016 gave the Minister the legal duty of passing Regulations to aid the Act to live up to its purpose. I find that the purpose of the Act is for the public good.
43. I am also in agreement with the interpretation attached to the essence of Article 46 (5) of the Constitution by the respondent. Each of the paragraphs in clause 46 (5) has a semicolon at the end without a conjunction. Each paragraph is thus independent, a stand-alone. Consequently, the Constitutional Court had the power to make an order under any other appropriate paragraph, a power independent of what the court may have declared under paragraph (a). Under 46 (5) it is provided that:
Upon hearing of an application under clause (1) the Constitutional Court may –
(a) declare any act or omission which is the subject of the application to be a contravention of the charter;
(b) ………………………………………………………………..;
(c) ………………………………………………………………..;
(d) ………………………………………………………………..;
(e) make such additional order under this Constitution or as may be prescribed by law.
44. This reasoning is supported by the decision of this Court in Citra Hoareau vs The Government of Seychelles and the Attorney General10 in regard to whether the provisions of Article 130 (4) found in paragraphs (a), (b) and (c) should be interpreted disjunctively or conjunctively.
45. The relevant provisions under Article 130 are as follows:
(1) A person who alleges that any provisions of this Constitution, other than a provision of Chapter III, has been contravened and that the person’s interest is being or is likely to be affected by the contravention may, subject to this article, apply to the Constitutional Court for redress.
(4) Upon hearing an application under clause (1), the Constitutional Court may -
(a) declare any act or omission which is the subject of the application to be a contravention of this Constitution;
(b) declare any law or the provision of any law which contravenes this Constitution to be void;
(c) grant any remedy available to the Supreme Court against any person or authority which is the subject of the application or which is a party to any proceedings before the Constitutional Court, as the Court considers appropriate.
46. The Court held that in the absence of the word “and” after the semi-colon appearing after paragraph (b) of Article 130 (4), paragraph (c) (and indeed each of the three paragraphs) should be interpreted disjunctively. My reasoning is also bolstered by a universally renowned principle of constitutional interpretation – A constitution must be given a purposive liberal interpretation and courts are enjoined to interprete a constitution in a manner that promotes its purposes, values and principles. The said principle is captured in Article 8 of Schedule 2 of the Constitution of Seychelles thus:
For purposes of interpretation-
(a) The provisions of this Constitution shall be given their fair and liberal meaning.
47. Relevant to the matter before us is the need to interpret the constitution in a manner that contributes to good governance.
48. I must also emphasise that the Constitutional Court will necessarily only entertain a matter if the petition shows on the face of it that the interpretation of the constitution is required. Because of the importance of jurisdiction, and the danger of lack of it, the Constitutional Court first determines whether or not it is seized with jurisdiction in such a matter. This determination is dealt with at the earliest opportunity and is often raised as a preliminary matter by parties. Even in the matter before us, the Constitutional Court dealt with this issue as a preliminary issue. I am therefore not persuaded that the issuing of a writ under Article 46 (5) in circumstances where the court makes a finding that the petitioner’s rights have not been violated will open flood gates and lead to litigants seeking for redress from the Constitutional Court as their “first port of call” even when their claims are obviously not based on the need to have the constitution interpreted.
49. Consequently, I cannot fault the Constitutional Court for issuing a Writ of Mandamus under Article 46 after having made a declaration that the petitioner had failed to prove that his constitutional rights had been violated. I would however issue the writ of mandamus under Article 46 (5) (e).
50. For all the aforesaid reasons, Ground 1 fails.
51. Arising from the above analysis, I would dismiss the cross appeal with no order as to costs.
L. Tibatemwa-Ekirikubinza (J.A)
Signed, dated and delivered at Ile du Port on 17 December 2019
IN THE SEYCHELLES COURT OF APPEAL
[Coram: F. MacGregor (PCA) ,A.Fernando (J.A) ,M. Twomey (J.A)
F. Robinson (J.A), L. Tibatemwa-Ekirikubinza (J.A)]
Constitutional Appeal SCA CP 02& 05/2019
(Appeal from Constitutional Court Decision CP 01/2018)
Alexander Geers | Appellant | |
Versus | ||
Government of Seychelles The Minister for Home Affairs and Local Government The Attorney General | First Respondent Second Respondent
Third Respondent |
Heard: 06 December 2019
Counsel: Mr. Joel Camille for the Appellant
Mr. Stefan Knights for the Respondents
Delivered: 17 December 2019
JUDGMENT
M. Twomey (J.A)
Facts
[1] I have had the benefit of reading the opinions of my Learned Sister of Appeal Tibatemwa-Ekirikubinza, with whom I concur, and my Learned Brother of Appeal Fernando, with whom I partially agree. I agree to the extent of his findings on the appeal, but dissent with regard to the cross-appeal. I am writing a separate opinion for the purposes of engaging in a discussion on one particular point, the first ground of the cross-appeal.
[2] For many this case appears to be about whether or not the Government should legalise marijuana. However, at its core, this case concerns the question of whether the Constitutional Court was empowered to order a Minister to make regulations under the Misuse of Drugs Act 2016 (MODA 2016) without having found that there was a breach of an Appellant’s constitutional rights.
[3] The Appellant, Alexander Geers, was charged with the offence of trafficking of a controlled drug, marijuana, and raised a defence of having the same for medicinal purposes. The Appellant brought a constitutional petition in which he averred that the Respondents’ (primarily the Minister for Home Affairs) failure to make regulations under MODA 2016 for the use of medicinal cannabis breached the constitutional right of the terminally ill for alternative treatment (right to health care article 28) and his own rights inter alia his rights to a fair hearing (article 19), dignity (article 16), liberty (article 18) and health care (article 29).
[4] He also averred that it was necessary for the Minister to make new regulations under MODA 2016 to regulate for the medical and scientific use of controlled drugs, replacing those which were passed under the previous MODA 1990.
[5] Essentially, the Appellant’s complaint was that the failure by the Minister to make regulations had resulted in the charges against him. In his view, had the Minister promulgated regulations to allow persons like him – who advocated for the scientific and medical use of cannabis for certain terminal illness – to cultivate cannabis, he would not have been charged under MODA 2016.
[6] His prayers for relief were:
[1] A declaration from the court that the refusal or failure to make regulations under the MODA to regulate controlled drugs for medical or scientific purposes is a contravention of the Constitution.
[2] A writ of mandamus requiring that such regulations were passed.
[3] An order that the regulations be made retrospective and an order preventing the Appellant’s criminal trial from proceeding.
[7] The Respondents raised preliminary points in law relating to the locus standi of the Petitioner (now the Appellant), the jurisdiction of the court and the ‘infructuous’ nature of the petition. These points in limine were dismissed in a judgment dated 18 September 2018 which has not been appealed to this court, nor have any of those matters been raised in this appeal. The appeal before this Court relates only to the substantive questions raised by the judgment delivered on 31 May 2019.
Constitutional Court
[8] In its judgment of 31 May 2019 the Court considered two issues:
“[1] whether or not the Government of Seychelles (First Respondent), Minister for Home Affairs and Local Government (Second Respondent) and the Attorney General (Third Respondent) – collectively referred to as “the Respondents”, - have individually and/or collectively failed, refused or neglected to make regulations in terms of the Misuse of Drugs Acts 2016 (MODA 2016), and
[2] whether this failure violates the Petitioner’s Charter Rights, including the right to a fair trial (Article 19); the Right to Dignity (Article 16), the right to participate in government (Article 24), and the right to health (Article 29)” [Numbering added].
[9] The Constitutional court started its enquiry by finding that the violations of rights asserted by the Petitioner were speculative and premature. It reasoned that the Appellant could not assume that the regulations, if passed, would provide for the legalisation of the distribution and use of cannabis. It held there that there could be no breach of the rights of the petitioner at that point in time. It held that “until such time that new regulations are passed, the content and scope of which are to be determined by the [Second] Respondent, the Court is not able to make a determination on this.”
[10] It went on to consider the first question of whether the Respondents had failed to pass regulations. The Attorney-General, for the Respondents, was adamant that no such duty existed, since there were existing regulations under MODA 1990 which were incorporated under the new MODA 2016 scheme through the saving provisions.
[11] In this exercise, the Court interpreted sections 4 and 54(1) (a) of MODA. It found that MODA 2016 introduced a different legislative scheme for the control of drugs from MODA 1990 and introduced a concept of regulating drugs for scientific and medical purposes. It held that section 4 of MODA 2016 anticipated the Minister passing new regulations under the Act and that the terms in MODA 1990 were materially different from those in MODA 2016. In order to give effect to the new legislative scheme, the Minister had a duty to make new regulations under MODA 2016. It held that the MODA 1990 regulations, although saved by section 55 of MODA 2016 were intended to be transitionary, until the new regulations were passed.
[12] The Constitutional Court, discussed the proper separation of powers and held that “[o]ur inquiry is therefore limited to whether an obligation exists to make regulations, which we have found it to, and whether that obligation has been discharged, which it has not.”
[13] It held further that “Therefore, although we find that the Second Respondent has a positive obligation to pass regulations under the MODA 2016 within a reasonable time, we do not find that the failure has amounted to a violation of any constitutional provisions.”
[14] The Court issued a declaration to this effect. It granted the relief sought in the second of the Appellant’s prayers, namely an order that the Minister pass regulations adding that this required compliance within twenty-four months of the order being made. It also found that the regulations would not have retrospective effect.
Appeals
[15] The Appellant appealed as follows:
That the Constitutional Court erred in law in not finding that his right a fair hearing (article 19) had not been breached and that the Minister’s failure to make the regulations deprived him of a defence to the offence of drug trafficking with which he had been charged.
He also appealed on the ground that the Court erred in law in not ordering that the regulations to be made by the Minister should have retrospective effect.
[16] The Respondents counter-appealed on four grounds all attacking the Courts’ findings regarding the requirement to make regulations which can be summarised as follows:
[1] First, that the Constitutional Court could not issue a constitutional remedy unless it found a breach of the Appellants’ rights. In this regard, it has submitted relying on Nolin v Attorney General, (1996-1997) SCAR 127 that the Constitutional Court is only empowered to make declarations or orders or issue writs when it has established that a Charter right has been infringed. It reasoned that the Constitutional Court is not permitted to exercise the supervisory jurisdiction of the Supreme Court to declare that the Minister had not exercised her discretion correctly. That would be a judicial review exercise to be performed solely by the Supreme Court.
[2] Secondly, it submitted that sections 4 and 54 of MODA could only be interpreted to infer a discretionary and not a mandatory duty on the Minister to make regulations.
[3] In this respect, it also submitted that the words “medical” and “scientific” in MODA 2016, did not amount to a material change in the legislative scheme of the previous MODA 1990.
[4] Finally, it submitted that the finding by the Court that regulations made under the MODA 1990 and later saved under MODA 2016 were only interim provisions was wrong in law.
Issues for this Court to determine
[17] The most logical way to arrange the questions on appeal is to consider the counter-appeal and the appeal together as follows:
[1] Whether the Constitutional Court was empowered to grant a declaration that the Minister failed to pass regulations in the absence of a finding of a constitutional breach of fundamental rights?
[2] Whether sections 4 and 54 infer a mandatory duty on the Minister to make regulations? (And whether the 1990 regulations suffice for the purposes of MODA 2016?)
[3] If there was a duty to pass regulations, whether the failure to pass these possibly breached any of the Appellant’s rights, particularly the right to a fair hearing?
[4] And finally whether the regulations, if mandated to be made, could properly be ordered by this court to have retrospective effect.
[18] My sister, Justice Tibatembwa-Ekirikubinza has succinctly addressed the issues and I wish merely to add my reflections on the first question.
[19] The first question requires consideration of the scheme of jurisdictional power created by the Constitution and the way that the pre-1993 judicial review interacts with the post-1993 schema. In this regard we need to consider the Constitutional Court as a full bench of the Supreme Court, its powers under Article 125 and the powers granted in Article 46(5). The remaining questions can only be answered in the order proposed as they flow one after the other. What is important to address, first, is that the Constitutional Court below could not have resolved the constitutional question arising before it without applying its mind to all of these questions, regardless of the order in which its judgment lays out its findings.
The Constitutional Court’s power to grant the declaration
[20] The Attorney General has submitted that the Constitutional Court misapplied Article 46(5) of the Constitution and issued a mandamus even though the learned judges found that there was no infringement of the petitioner’s rights under the Constitution. He relies on the case of Nolin (supra) and the of Juanita Lucas and Celia Carillo v Chief Education Officer, Minister of Education et al. [2015] CCJ 6 (AJ) a case from the Caribbean Court of Justice in support of his argument.
[21] The case of Nolin concerned the constitutionality of the provision empowering the Minister of Employment to grant the payment of compensation on a finding of unfair dismissal rather than ordering reinstatement. The Appellant in that case had argued that the provision was unconstitutional because it allowed the Minister a discretion which breached her right to work. The central issue of the case was whether there was a breach of the right to work. The Constitutional Court had found that it had no supervisory jurisdiction over the Minister’s determination. The Court of Appeal held that there was no breach of the right to work holding that “at its highest, [there was] a breach of the obligation imposed by Act.” It went on to find that:
“[12] Judicial review of an administrative action which does not involve a breach of the constitution but only of an empowering statute as alleged in the instance case is within the supervisory powers of the Supreme Court and not a matter for the Constitutional Court.”
[22] The Court of Appeal went on to add that there could be cases where the wrongful exercise of discretion by the Minister could amount to a contravention of the Constitution, which would trigger the jurisdiction of the Constitutional Court; however in the particular case before it, it found that the fundamental right of the Appellant had not been infringed and therefore the Constitutional Court was correct in declining to make any consequential declarations as prayed for by the Appellant in her petition.
[23] The reliance on Nolin in the present case is misplaced and cannot be followed by this Court for three reasons. First, the dictum in Nolin is not premised on any compelling discussion of the applicable legal provisions, other relevant principles of interpretation, or applicable case law. Secondly, and more importantly, it is overturned by the case of Hoareau v Government of Seychelles (2000-2001) SCAR 5. The third reason, is that it is logically impractical to require a litigant asserting a constitutional right to first attend the Supreme Court to obtain a judicial review remedy prior to approaching the Constitutional Court for a remedy when the same Judges with the same powers sit on both panels.
[24] In Hoareau, the Appellant petitioned the Constitutional Court alleging that the Government of Seychelles had breached the Constitution in refusing to negotiate in good faith with her in accordance with Schedule 7 of the Constitution, namely with regard to the return of her property which had been acquired. She sought a writ of certiorari quashing the Government’s decision and ordering a mandamus for it to review her application under Schedule 7. It is relevant that the Government in this instance was required to exercise an executive function in negotiating with the Appellant. Similarly, in our present case, the Minister is required to exercise an executive duty in making regulations delegated to her by the National Assembly in terms of Article 89 of the Constitution. As my Sister Justice Tibatemwa-Ekirikubinza has succinctly stated in her decision at paragraph 30, this is a constitutional duty.
[25] The Constitutional Court in Hoareau, struck out the petition stating that the Court must first declare whether an act contravenes the Constitution under Article 46 or 130 before the Court could grant a remedy. The decision was overturned by the Court of Appeal. The Court of Appeal held that the Appellant had a valid cause of action grounded in Article 130(1) of the Constitution. It applied a fair and liberal interpretation of the Constitution in line with paragraph 8 of Schedule 2 of the Constitution (the Principles of Interpretation) and held that Article 130(4) permitted the Constitutional Court to grant a remedy [under Article 130(4)(c)] in the absence of a declaration of unconstitutionality [under Article 130(4)(a) or (b)]. In particular, the Court held:
“[7] It is quite clear, … that if the Constitutional Court interpreted disjunctively the provisions of Article 130(4)(a) and (b), there is no valid reason why paragraph (c) of that Article should not also be interpreted disjunctively, especially in the absence of the word ‘and’ after the semicolon appearing after paragraph (b) of Article 130(4).”
[26] In this regard, the Court of Appeal had no hesitation in holding that paragraphs (a) to (c) in Article 130(4) should not be interpreted conjunctively and therefore gave rise to three alternative remedies that the Court may grant.
[27] The Court of Appeal in Hoareau continued further, at paragraph 13, that because the Appellant had a right of action to approach the Constitutional Court, the Constitutional Court should not be deprived of its jurisdiction to grant constitutional remedies in the absence of a declaration of a contravention of the Constitution.
[28] In that case the stand taken by the Constitutional Court for striking out the petition of the appellant is very similar to what the Attorney General is asking us to do in the present case. In Hoareau the Constitutional Court had stated that:
"the Court must first declare whether (a) the act or omission alleged by the appellant contravenes the Constitution or (b) any law or the provision of any law contravenes the Constitution, under Article 130(4)(a) or (b) of the Constitution, before proceeding further and granting the remedies of certiorari and mandamus under Article 130(4)(c). "
[29] The Court of Appeal unanimously found that the Constitutional Court erred in this holding stating that the remedies available to the Court are available separately, and not conjunctively, ie that there was no requirement to find a breach in order to grant a remedy. My Sister Justice Tibatemwa-Ekirikubinza has appropriately applied this same reasoning to the remedies available under Article 46(5), which approach I endorse.
[30] My third reason why the decision in Nolin should be distinguished relates to the practicalities of constitutional litigation and stems from the requirement in Schedule 2 paragraph 8 of the Constitution that entreats the Court to favour interpretations that read the provisions of the Constitution as a whole.
[31] There was discussion during this hearing that the Minister’s failure to pass regulations could be challenged through judicial review. It is not clear to me that judicial review is available in the present situation where a litigant is challenging the regulation making power of a Minister. Be that as it may, the facts of this case, and those in Nolin and Hoareau serve to show how a constitutional case may rightly stem from the same act that gives rise to a judicial review case.
[32] My Brother Justice Fernando has expressed concerns about the Court exercising its functions under 125(1) as creating an “unruly hodgepodge”. On the contrary, I believe that the approach in Nolin will be one to create this, and the approach in Hoareau, and that adopted by my Sister Justice Tibatemwa-Ekirikubinza are in fact a better holistic reading of the Constitution. Where a litigant believes that a Minister’s decision is wrongly made and that this has contravened the constitution that litigant should be entitled to vindicate that right. Article 125(1)(a) read with Article 129(2) prohibits that litigant from approaching a single judge of the Supreme Court because only the Constitutional Court may determine a matter regarding the “application, contravention, enforcement and interpretation” of the Constitution.
[33] Article 46(4) provides a practical solution to resolve this overlap. If the Constitutional Court is of the view that the litigant has “adequate means of address” in another forum, it may decide to transfer the matter to that forum, however, it may also decide to hear the case itself. This may arise in a matter which involves purely an administrative action or duty by a public authority. However, where the Constitutional Court hears a matter itself, it has the full powers under Article 46(5)(c) to grant remedies to resolve the case. The Court is enjoined under Article 46 (5) (c) to “make such declaration or order, issue such writ and give such directions as it may consider appropriate for the purpose of […] disposing of all the issues relating to the application.”
[34] In the present case, the question of whether there was a duty to pass regulations, which may have implicated Mr Geers’ constitutional rights, was properly before the court for determination. This determination was a logical prerequisite to their finding regarding the rights. In order for the Constitutional Court to establish whether there was breach of the Appellant’s or other person’s constitutional rights, it was first required to determine whether the Minister had a duty under the MODA to make regulations. I do not see how the Court below could determine the question raised before it without considering whether there was a duty to pass new regulations under MODA 2016. And having determined to hear the matter under Article 46(4), the Court was entitled under Article 46(5) to make any lawful order upon hearing the application to resolve all matters arising in the petition.
The doctrine of the Supremacy of the Constitution enjoins the Constitutional Court to hold the use of public power up to the plumbline of the Constitution. This implicates the rule of law, the separation of powers and other principles that are fundamental in our constitutional structure. The approach submitted by the Attorney General hamstrings the jurisdiction of the Constitutional Court and would limit its safeguarding of the Constitution.
M. Twomey (J.A)
Signed, dated and delivered at Ile du Port on 17 December 2019
1 uslegal.com
2 See Halsbury’s Laws of England (LexisNexis 5th ed, 2012), vol 96 at [668].
3 Statutory Interpretation: General Principles and Recent Trends, (2014) @www.crs.gov 97-589.Accessed on 6 th November 2019. (Author’s name redacted)
4 (1880) 5 App Cas 214.
5 https://www.merriam-webster.com.
6 (1812) 12 QBD 461.
7 Seychelles Court of Appeal Case No.30 of 1996 at page 7.
8 Dinbai vs. Noronha AIR (1946), 407 (Supreme Court of India).
9 Wade, Administrative Law, 9th edition, 615.
10 SCA Civil Appeal no 42 of 1999
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