The Seychelles Human Rights Commission and Others v The Speaker of the National Assembly of Seychelles and Others (SCA CL 04/2023) [2024] ((Arising in CP 07/2022) (3 May 2024)) [2024] SCCA 14 (3 May 2024)

 

DE SILVA JA

(Dr. L. Tibatemwa-Ekirikubinza JA, K. Gunesh-Balaghee JJA, concurring)

 

                        Factual Matrix

 

1. The Constitution of the Republic of Seychelles (Tenth Amendment) Act 2022 [“Tenth Amendment”] came into force on 14 June 2022. The Appellants filed an application pursuant to Article 130 of the Constitution of the Republic of Seychelles [“Constitution”]  seeking a review of the constitutionality of the Tenth Amendment.

 

2. There is no need to delve into the grounds on which this application was made as the matter before us arises from an application made by the Appellants seeking the recusal of all the judges of the Constitutional Court from hearing the application for review of the constitutionality of the Tenth Amendment.  

 

3. The application for recusal was based upon a news report published on the State House website on 15 June 2022, entitled “President Ramkalwan assents to the Constitution of the Republic of Seychelles (Tenth Amendment) Bill 2022” which reads as follows:

“During his statement before assenting to the Constitution of the Republic of Seychelles (Tenth Amendment) Bill, 2022, the President thanked everyone who has been involved in the amendments of this new Bill. Namely, the Seychelles Defence Forces, the Police Force of Seychelles, the Judiciary (both the Supreme Court and the Court of Appeal), the Honourable Leader of the Opposition, the Human Rights Commission, the Ombudsman, the media, the Defence and Security Committee of the National Assembly, the Bar Association of Seychelles and other persons and organizations.” (emphasis added)

 

4. It is the contention of the Appellants that their Counsel, complying with the recusal guidelines set out by the Court of Appeal in Government of Seychelles & Anor v. Seychelles National Party & Ors; Michel & Ors v Dhanjee [SCA 4/2014[2014] SCCA 33 (12 December 2014)] [“Recusal Guidelines”] met with the learned Judges in chambers on 27 September 2022, along with the Counsel for the Respondents’, to inform of the concerns of the Appellants’ arising from this news report.  
5. A request was made to the learned Judges to consider recusing themselves from hearing the application. The position of the Appellants was that the alleged involvement of the Judiciary in the preparation of the Tenth Amendment is not constitutionally permitted, warranted or desirable and has compromised the ability of the Judges and Justices to impartially adjudicate the constitutionality of the Tenth Amendment.

 

6. According to the Appellants, their informal request was refused outright, and they were directed to file a formal motion. The application was mentioned, and the Appellants invited to file their recusal motion by 11 October 2022.

 

7. Thereafter the Appellants became aware of articles published in the local print media alleging that the learned Chief Justice, who had previously purchased State-owned land from the Government, was sold another plot of State-owned land for lesser consideration than valued in breach of the Government’s stated policy and in violation of the provisions of the State Land and Rivers Reserves Act and the Stamp Duty Act.

 

8. On 6 October 2022, the Counsel for the Appellants met with the learned Judges in chambers, along with the Counsel for the Respondents, to express the Appellants’ concerns over the publications in the media relating to the sale of State-owned property to the learned Chief Justice and to request his recusal. According to the Appellants’ this informal request was declined and their Counsel advised to make a formal recusal application.

 

9. On 10 October 2022, the application for recusal was filed [“Recusal Motion”]. The Appellants moved that the Recusal Motion be referred to a Judge unconnected with this matter for determination. On 2 November 2022, the Respondents filed an affidavit of the Hon. Attorney General setting out grounds on which the Recusal Motion was opposed.

 

10. On 8 November 2022, the Constitutional Court requested written submissions from the Appellants in response to the legal objections on the procedure raised by the Attorney General in paragraphs 15 to 17 of his affidavit. The Court specifically directed the Appellants to limit themselves to the procedural issues to be determined by the Court and not on the substantive and the merits of the application.
11. On 6 December 2022 the Appellants filed the submissions as requested by Court.

 

12. The Constitutional Court delivered judgment on 24 January 2024 [“Ruling”] dismissing the Recusal Motion on the grounds that it appeared frivolous and vexatious and an abuse of the process of the Court.

 

13. The Appellants applied to the Constitutional Court for leave to appeal from the Ruling. It was dismissed on the basis that the Ruling was not an interlocutory order but a final judgment.

 

14. Upon an application made by the Appellants, this Court, in The Seychelles Human Rights Commission & Others v The Speaker of the National Assembly of Seychelles & Others [SCA MA 21/2023 [2023] (Arising in MA 230/2022, Out of CC 07/2022) (18 December 2023)], held that the Ruling is an interlocutory order within the meaning of Section 12(2)(a)(i) of the Courts Act and that a leave to appeal application is the proper remedy against the Ruling. Special Leave to Appeal was accordingly granted.

 

Grounds of Appeal

 

15. The Appellants seek to assail the Ruling on the following grounds:

 

1. 1. The learned Judges erred and, in particular, acted in disregard of Recusal Guidelines by proceeding to determine the Appellants’ Recusal Motion themselves.

 

1. 2. The learned Judges erred in dismissing the Recusal Motion on what was essentially questions of substantive merits, after giving the assurance that they (the Judges) would only consider the point of procedure raised in the affidavit of the Attorney General, thus denying the Appellants a fair hearing.

 

1. 3. The learned Judges erred in overlooking that the necessary inquiry into whether the other Judges of the Constitutional Court were involved in the preparation of the Tenth Constitutional Amendment as stated in the State House press report of 15 June 2022 was the administrative responsibility of the learned Chief Justice (and not a constitutional or other duty of the Appellants), being a requirement to ensure the independence and impartiality of the learned Judges and the judiciary as a whole.

 

1. 4. For the reasons set out in ground (c) above, the learned Judges also erred in their finding that the filing of the Recusal Motion deprived the other judges of the Supreme Court of their right to a fair hearing.

 

1. 5. The learned Judges erred in relying on their oath of office to negative the Appellants’ suspicion of bias, without carrying out any evaluation of the evidence of the suspected bias.

 

1. 6. The learned Judges failed to consider the express requirement that the Recusal Guidelines are not applicable and recusal is not available to litigants where there is a suspicion of bias against all the Judges.

 

1. 7. The learned Judges erred in their application of the doctrine of necessity to dismiss the Recusal Motion, given that there is no time limit on the number of Judges that may be appointed under the Constitution and the precedents in this jurisdiction (including recent practice acknowledged in the 3^rd Respondent’s affidavit). 

 

1. 8. The learned Judges erred in speculating the outcome of a determination of the Recusal Motion by a single Judge unconnected with the case and concluding that the Recusal Motion would necessitate the appointment of seven new Judges.

 

1. 1. The learned Judges erred in their finding that the appointment of an ad hoc or temporary Judge pursuant to the Constitution to hear the Recusal Motion would lead to “a procedural irregularity” or “an impasse” or would be objectionable to the Appellants. These findings are speculative and overlook the constitutional provisions ensuring that judicial appointees can competently and impartially discharge the function of office.

 

1. 10. The learned Judges were wrong to conclude the granting of the Recusal Motion would give the Appellants the possibility of “forum shopping”, given that the Appellants would have no influence or control over the appointment of the Judges that would hear the matter.

 

1. 11. The learned Judges erred in omitting to address the second ground of recusal, seeking the recusal of the learned Chief Justice solely.

 

1. 50. Given the uncontroverted evidence adduced by the Appellants, raising suspicion of judicial bias, the learned Judges were wrong to conclude that the Recusal Motion was frivolous and vexatious and an abuse of the process of the Court.

 

1. 1000. The following conduct, comments and findings of the learned Judges in the proceedings show actual bias against the Appellants, adversely affecting the integrity of the proceedings and the Appellants’ right to a fair hearing:
         1. The direction at the start of the proceedings, before any pleadings or evidence had been filed by the Respondents, that the 3^rd Appellant (Bar Association of Seychelles) should bring proof of its standing and its mandate to prosecute the petition;
         2. Inviting submissions (only) from the Appellants on ‘procedural questions’ raised by the Respondents, and then proceeding to dismiss the Recusal Motion on its merit, including its substantive merit;
         3. Denying the Appellants the option of the settled practice of seeking leave to appeal viva voce at the same sitting when the ruling on the Recusal Motion was delivered, and the content and tenor of the comments from the bench at that sitting; and
         4. The delivery of the ruling dismissing the filed motion for leave to appeal well after the deadline to file an appeal in the matter, and determining that no leave was required to appeal against the dismissal of the Recusal Motion.

 

 

 

 

Ruling

 

16. The Constitutional Court held, at paragraph 27, that the Ruling is not on the merits of the Recusal Motion, that is whether or not based on the facts presented by the Appellants the present members of the judiciary of Seychelles must recuse themselves, but on whether procedurally the motion is sustainable given certain strong procedural difficulties that it entails. The Court specifically held that it is conscious that in the spirit of our laws on recusal they cannot be a Judge in their own cause.

 

17. Although there appears to have been uncertainty at the beginning on whose recusal was sought by the Appellants, the Constitutional Court held, at paragraph 29, that the submissions clarified that recusal is sought against the learned Chief Justice and any other Judges of the Constitutional Court at the time of the preparation of the Tenth Amendment. It is clear that the news report referred only to the Judges of the Supreme Court and the Court of Appeal and not the whole judiciary.

 

18. The Constitutional Court held that therefore none of the current Judges and Justices can determine either the Petition or the Recusal Motion as it was explained in Government of Seychelles & Anor v. Seychelles National Party & Ors (supra) that the Judge whose recusal is being sought cannot determine any motion in relation to his own recusal. It must be done by a non-impugned Judge.

 

19. It was further held that the Judges whose recusal is being sought need to have an opportunity to give their own view on the facts and their relevance to the recusal request which has not yet occurred and cannot occur given the content of the application which has impugned all current Judges of the Judiciary.

 

20. Moreover, the Constitutional Court was of the view that the Recusal Guidelines is limited to the recusal of the presiding Judge or the bench hearing the case and it can only work fairly if it is so limited.

 

21. Having so concluded, the Constitutional Court invoked the doctrine of necessity and the Judges duty to sit and hear the case and decided to hear and determine the application.

 

Recusal Guidelines

 

22. In Government of Seychelles & Anor v Seychelles National Party & Ors; Michel & Ors v Dhanjee (supra) this Court set out the Recusal Guidelines. However, they were qualified by the exhortation that these Guidelines have to be used with imagination rather than dogmatically. They are as follows:

 

Rule 1

Where a party to a case has reasonable grounds to believe that a particular Judge should be spared the embarrassment of sitting in his case on account of a bias, he should so inform his Counsel and instruct him to consider making a recusal request to the Judge in question.

 

Rule 2

On receiving such instruction, Counsel should satisfy himself that the facts put forward by his client are not frivolous but sufficiently cogent for the purposes of making a recusal request.

 

Rule 3

On being so satisfied, he should approach the opposing Counsel to indicate his stand and may seek his views on the matter before taking an informed decision whether or not to proceed with a recusal request.

 

Rule 4

Where he has decided to proceed with a recusal request, learned Counsel should seek an appointment with the Judge in question, see him in presence of opposing Counsel and place before him the facts on which his client relies to seek a recusal.

 

 

 

 

Rule 5

On being apprised of the facts, the learned Judge should refrain from being his own judge in his case but submit them to the administrative consideration of the Chief Justice, after giving his own view on the facts and their relevance to the recusal request.

 

Rule 6

It will be for the Chief Justice to decide in his best judgment whether the recusal request should be granted or not. In arriving at his decision, the Chief Justice may or may not invite Counsel who are parties to the case for further information in presence of the learned Judge.

 

Rule 7

Irrespective of his own view on the matter, the learned Judge should abide by the decision of the Chief Justice, following which a communication should be addressed to both Counsel.

 

Rule 8

Where the Chief Justice maintains his decision for the same Bench to hear or continue with the matter, and learned Counsel is not satisfied with the outcome for any good reason, he should make a formal recusal motion in open court at the next hearing date, with notice to the other party.

 

Rule 9

On such motion being made, the bench assigned the case should not proceed to take any decision on the challenge but refer the matter to the Chief Justice.

 

Rule 10

On taking cognizance of the formal motion, the Chief Justice shall assign another Judge who is not concerned with the case to hear and determine the recusal motion of the Judge in question.

 

 

 

Rule 11

The procedure and hearing shall be summary identical with what obtains in a civil suit based on affidavit evidence.

 

Judge In Own Cause

 

23. The Appellants firstly submit that the Constitutional Court acted as Judges in their own cause by determining the merits of the Recusal Motion whereas the Appellants were directed to file written submissions to address the issues raised in paragraphs 15 to 17 of the Attorney General’s affidavit regarding the legality of the recusal procedure. 

 

24. The general principle is that nemo judex in causa sua (also written as nemo [est] judex in sua causa, in propria causa, in re sua or in parte sua). It means that no one shall be Judge in their own case. 

 

25. However, the learned Principal State Counsel submitted that there are jurisdictions where Judges are expected to hear their own recusal and therefore a Judge determining his or her own recusal cannot be interpreted as a deviation from justice. Much reliance was placed on the dicta in The President of the Republic of South Africa and Ors v South African Rugby Football Union and Ors [(CCT 16/98) [1999] ZACC 9, decided on 7 May 1999, para. 31] where it was held:

“[j]udges have jurisdiction to determine applications for their own recusal. If a judge of first instance refuses an application for recusal and the decision is wrong, it can be corrected on appeal. Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1(A) at 13H(per Hefer JA)”

 

26. Nevertheless, here the issue is regulated by Rule 5 of the Recusal Guidelines which specifically prohibits the Judge from being his own Judge in his case. Rule 5 makes it incumbent on the Judge whose recusal is sought to give his own views on the facts and their relevance to the recusal request to the administrative consideration of the Chief Justice.

 

27. In this case, none of the three judges before whom the matter came up, gave their views on the facts and their relevance to the recusal request. No doubt, the Chief Justice is one of the Judges whose recusal is sought. Nevertheless, it was incumbent upon the Chief Justice to place on record his views on the two grounds on which his recusal was sought in addition to providing all the other Judges of the Constitutional Court an opportunity to place on record whether any one of them was involved in any manner in the preparation of the Tenth Amendment.

 

28. The duty to comply with Rule 5 of the Recusal Guidelines was with the learned Chief Justice who was heading the bench hearing the matter. Having failed to do so, it does not follow that Rule 5 cannot be complied with given the content of the application which has impugned all current Judges of the Constitutional Court.

 

29. As the Constitutional Court correctly states, at paragraph [37], in the event that the Chief Justice is asked to recuse himself, it is clear that good imagination means that the administrative direction that is sought for under Rule 5 can be sought by the impugned Chief Justice from the next most Senior Judge of the Supreme Court. The Court went on to state that this would be in line with the spirit of the Recusal Guidelines.

 

30. Whether all the Judges of the Constitutional Court are disqualified from hearing the matter would have been established only after all of them were given a fair hearing by providing an opportunity in terms of Rule 5 of the Recusal Guidelines to place on record whether any one of them was involved in any manner in the preparation of the Tenth Amendment.

 

31. The Constitutional Court failed to provide an opportunity of a fair hearing to the Judges. Without doing so, it made a fundamental error in accepting the version of the Appellants on the face value, based on the news report on the State House website, and depriving the Judges of the Constitutional Court of an opportunity of putting on record their position.

 

32. This is a fact the Constitutional Court directed its mind to as it held, at paragraph 38, that “no single judge has had any interaction with the facts of the case yet. The only allegation lies in an assertion of the Petitioners that could be factually refuted if the opportunity is given”. That opportunity was taken away from those Judges not by the Appellants, but by the Constitutional Court due to its failure to apply the Recusal Guidelines in a pragmatic rather than a dogmatic way.

 

33. Without doing so, the Constitutional Court took the unfortunate step of proceeding to hear and determine the Recusal Motion itself by applying the doctrines of necessity and the Judges’s duty to sit and hear the case.

 

34. This was a grave error on the part of the Constitutional Court when the direction to the Appellants were to file written submissions to address the issues raised at paragraphs 15 to 17 of the Attorney General’s affidavit regarding the legality of the recusal procedure.  Moreover, it is based on an incorrect appreciation of the doctrines of necessity and the Judges’ duty to sit and hear the case. Let me examine these two doctrines in detail and explicate their inapplicability to the facts of this case.

 

Doctrine of Necessity

 

35. The Constitutional Court was of the view that the doctrine of necessity will apply to the circumstances of this matter, particularly as there will be a need to appoint seven new judges, four new Judges of the Supreme Court and three Justices of Appeal, if the Recusal Motion was to be allowed.  

 

36. The Constitutional Court erred in considering the practical difficulties arising from allowing the Recusal Motion. Where the applicable test for actual or apparent (apprehended) bias is met by a recusal application,  the Judge must not hear the case, irrespective of any resulting inconvenience. In Morrison v AWG Group Ltd [(2006) EWCA Civ 6, para. 29] the Court of Appeal held that such issues:

“…[a]re totally irrelevant to the crucial question of the real possibility of bias and automatic disqualification of the judge. In terms of time, cost and listing it might well be more efficient and convenient to proceed with the trial, but efficiency and convenience are not the determinative legal values: the paramount concern of the legal system is to administer justice, which must be, and must be seen by the litigants and fair-minded members of the public to be, fair and impartial. Anything less is not worth having.” (emphasis added)

 

37. The doctrine of necessity, sometimes referred to as rule of necessity, developed alongside the general rule governing disqualification of a Judge. It was developed as an exception to the rule nemo in propria causa judex, esse debet (No one should Judge in his own case). The theoretical foundation of the doctrine stems from the teachings of Henry de Bracton who said “what is otherwise not lawful is made lawful by necessity”. 

 

38. Halsbury’s Laws of England (4^th ed. 1989), Vol. 1(1), at para. 93, explains the doctrine of necessity as follows:

“if all members of the only tribunal competent to determine a matter are subject to disqualification, they may be authorised and obliged to hear and determine that matter by virtue of the operation of the common law doctrine of necessity”.

 

39. This doctrine appears to have been applied as far back as 1430 where it was held that the Judges of the Common Pleas were not disqualified  from judging an action against all of them because there was no other Court in which the case could be brought [Year book, 8 Hen. 6, 19b; 2 Rolle’s Abridgment (1668), at p. 93].

 

40. The doctrine has been recognized or applied in England [Dimes v Grand Junction Canal (Proprietors of) (supra); Regina v. Dudley and Stephens (1884) 14 QBD 273; Rex v Bourne (1939) 1 KB 687], Australia [Laws v Australian Broadcasting Tribunal (1990) 93 ALR 435 (H.C.)], United States [United States v Will (449 U.S. 200(1980)); United States v Homes (26 F.Cas. 360 (C.C.E.D. Pa. 1842))], Canada [Beauregard v Canada (1986) 2 SCR 56], India [Election Commission Of India & Another vs Dr. Subramanian Swamy & Another (1996 AIR 1810] and Pakistan [Federation of Pakistan v. Maulvi Tamizuddin Khan PLD 1955 Sind. 240].

 

41. The doctrine is founded upon the rule of law. It is applied to prevent a failure of justice or frustration of statutory provisions.

 

42. In Laws v Australian Broadcasting Tribunal (supra, at p. 454) the High Court of Australia identified the following two important qualifications of the rule:                      

“[F]irst, the rule will not apply in circumstances where its application would involve positive and substantial injustice since it cannot be presumed that the policy of either the legislature or the law is that the rule of necessity should represent an instrument of such injustice. Secondly, when the rule does apply, it applies only to the extent that necessity justifies.”

 

43. There appears to be a third exception. The doctrine can apply only where the disqualification of the Judge arises due to reasons beyond his control. It cannot be invoked where the disqualification came about due to his voluntary acts. Otherwise, it will have a narcissistic application. A Judge can act in a way which disqualifies him but thereafter invoke the doctrine of necessity to hear and determine the case. 

 

44. The basis on which the recusal of all Judges is sought in this case, if correct, brings this matter within the third exception. The Constitution does not provide for the intervention of the Judiciary in the preparation of any law, by way of advice or otherwise. In particular, no Judge of the Constitutional Court can do so without creating a conflict of interest given that it is the Constitutional Court that has been granted power pursuant to Article 130(4) of the Constitution to declare any law or the provision of any law which contravenes the Constitution to be void. 

 

45. In the event that all the Judges of the Constitutional Court were involved in the preparation of the Tenth Amendment where the Constitution does not recognise any such role, such voluntary act cannot be then used to apply the doctrine of necessity. The doctrine of necessity, which is aimed at preventing a failure of justice, is in that situation converted into a self-serving construct.

 

46. Moreover, the doctrine of necessity will not apply in that situation since Article 128(2)(c) of the Constitution specifically provides for the appointment of an acting Judge or Judges where the state of business in the Supreme Court requires. The Appellants drew our attention to the precedents in Seychelles of appointing ad hoc judges or justices in Bar Association of Seychelles and Anor v President of the Republic of Seychelles and Ors (SCA 7 of 2004) and Vijay Construction (Proprietary) Limited v Eastern European Engineering Limited (SCA 28 of 2020) [2022] SCCA 58 (21 October 2022).

 

47. For the foregoing reasons, the Constitutional Court erred in determining that the doctrine of necessity applies in this application.

 

Duty to Hear

 

48. The Constitutional Court placed much reliance on Article 119(1) of the Constitution and held that there is only one Judiciary in Seychelles and that all Justices and Judges have taken their oaths of office in accordance with the Constitution. It was emphasised that they do not take their oaths lightly. The application of the Appellants was viewed practically as a request for the suppression of the upper judiciary.

 

49. The decisions in Michel & Ors v. Dhanjee & Ors [Recusal] (SCA 5 and 6 of 2012) [2012] SCCA 23 (31 August 2012), The President of the Republic of South Africa and Ors v South African Rugby Football Union and Ors (supra) and Gladys Boss Shollei v Judicial Service Commission & another [2014] eKLR were relied upon by the Constitutional Court.

 

50. No doubt every Judge assumes office after taking his oath of office in accordance with the applicable law, which in most instances is the constitution of the country where he sits in. Nonetheless we as Judges must not slavishly cling on to the sanctity of our oath and overlook the much more fundamental principle that justice “should not only be done, but should manifestly and undoubtedly be seen to be done” which still has traction though pronounced nearly a century ago. Otherwise, the rule against bias will be redundant in the face of the sanctity of judicial oath. As Justice Kennedy observed in Williams v. Pennsylvania [136 S. Ct. 1899 at 1905 (2016)], [b]ias is easy to attribute to others and difficult to discern in oneself.

 

51. One must not loose sight of the fact that the Recusal Motion of the Appellants is based on a news report which was published on the State House website. The Appellants cannot be faulted for having relied upon such official publication.  They had every right to be concerned with the contents and file the Recusal Motion which is certainly not frivolous or vexatious.

 

52. For the foregoing reasons, the Constitutional Court erred in determining that the doctrine of Judges’ duty to sit and hear the case applied to the circumstances of this case.

 

53. These conclusions are sufficient to dispose of this appeal in favour of the Appellants on the grounds of appeal more fully set out above in paragraphs 15 (a), (b), (c), (d), (e) and (g) above.   However, we are inclined to lay down procedural guidelines on how the Recusal Motion application should now proceed in the Constitutional Court with a view to ensuring an efficacious and early disposal of the matter in view of the unusual circumstances of this case.

 

54. Before laying down the procedural guidelines, let me begin by examining the doctrine underlying the recusal of Judges as it should assist the Constitutional Court in the application of the procedural guidelines.

 

Recusal of Judges

 

55. The right of a litigant to move for recusal of a Judge is an ancient concept. In 530 A.D., the Justinian Code [Codex of Justinian, Book III, title 1, No. 16] provided that:

“It is the clearest right under general provisions laid down from thy exalted seat, that before hearings litigants may recuse judges. A judge being so recused, the parties have to resort to chosen arbitrators, before whom they assert their rights. Although a judge has been appointed by imperial power yet because it is our pleasure that all litigations should proceed without suspicion, let it be permitted to him, who thinks the judge under suspicion to recuse him before issue be joined, so that the cause go to another; the right to recuse having been held out to him…”

 

 

 

56. However, English common law was slow to recognize this as a right of a litigant. Blackstone [William Blackstone, Commentaries on the Laws of England, (Clarendon Press reprinted by Legal Classics Library, first published 1765–1769, 1983 ed.), Volume III, 361] stated that although recusal was possible in civil and canon laws, in English law it was not possible to challenge justices. The difference in approach may well have been founded on the distinct inquisitorial role a judge played in civil law systems, which is not the role of common law Judges. Blackstone [ibid.] sought to explain the rationale as follows:

"[T]he law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.”

 

57. Notwithstanding the inability to challenge a Judge on the basis of bias, English Law did as early as 1609 recognise the ability to get a Judge recused from a case in which he had an “interest”. Thus in Dr. Bonham's Case [77 Eng. Rep. 646, 653 (1609)], a Judge was disqualified from a case in which he would receive the fines he assessed.

 

58. Moreover, a man shall not be a Judge in his own cause or nemo judex in  sua causa or nemo debet esse judex in propria causa. Thus, by the mid-19^th century it was recognised that a Judge would automatically be ineligible to hear a case where he or she had a monetary interest in the subject matter [Dimes v. Proprietors of Grand Junction Canal (1852) 3 HL Cas 759 at 793, 10 ER 301 at 315].

 

59. In this situation it matters not whether that interest gives rise to a reasonable apprehension of bias. Where a Judge has a direct pecuniary or proprietary interest in the outcome of a case, they are automatically disqualified [See Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759; Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, at paragraph 40; R v Bow Street Metropolitan Stipendiary Magistrate and others, ex p Pinochet (No 2) [2000] 1 AC 119, Lord Browne-Wilkinson at page 134; Locabail v Bayfield [2000] QB 451, paragraphs 4-9.] The rationale of this rule is that an individual cannot be a Judge in his own cause. That being so, the rationale disqualifying a Judge applies just as much if the Judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties [Pinochet (No 2), supra. at page 135].
60. The statements of principles which regulated the ability of a Judge to hear and determine a case was later calibrated by English common law into specific tests. The first test was focused solely on actual bias. In R v Rand [(1866) LR 1 QB 230, 232–3] it was held that a Judge was disqualified wherever there is a real likelihood that the Judge would, from kindred or any other cause, have a bias in favour of one of the parties.

 

61. Where actual bias is alleged, the focus is on what is actually going on in the mind of the Judge. The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the Judge in question and hence is subjective. Nevertheless, actual bias is not confined to an intentional state of mind. It may be subconscious provided it is real [Bilgin v Minister for Immigration and Multicultural Affairs [(1997) ALR 281 at 289-290]; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 and 135].

 

62. Actual bias on the part of a Judge can be inferred from his or her conduct during the hearing. The conduct of the Judge may be viewed cumulatively to examine any allegation of actual bias [Vakuta v Kelly (1989) HCA 44, 167 CLR 568 at 579; Johnson v Johnson (2008) HCA 48 at 79, 201 CLR 488]. However, conduct which is erroneous and wrong-headedness and remarks which are inapt and undesirable do not ipso facto translate into a finding of actual bias [Reid v Commercial Club (Albury) Ltd (2014) NSWCA 98; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 668 at (38)].

 

63. The shift from actual bias to apparent or apprehended bias was heralded by the eminent statement of Lord Heward CJ in R v Sussex Justices, ex p McCarthy [(1924) 1 KB 256, at page 259]  that justice “should not only be done, but should manifestly and undoubtedly be seen to be done”. In apprehended or apparent bias, the focus is on perceptions, and considers the matter from the perspective of how it may appear. The test is objective.

 

 

64. In R v Gough [(1993) AC 646, 668–70] the House of Lords held that the test for apprehended (apparent) bias required a ‘real danger’ of bias, viewed from the perspective of the Judge. According to Lord Goff of Chieveley (ibid. 670), it was:   

“unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in  the sense that he might unfairly regarded (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him… ”

 

65. This approach of applying the test from the perspective of the Judge was subject to criticism and rejected in some jurisdictions as it runs contrary to the established principle in R v Sussex Justices (supra) that justice “should not only be done, but should manifestly and undoubtedly be seen to be done”.

 

66. In Webb v The Queen [(1994) 181 CLR 41 at 51] the High Court of Australia held that it is more likely that public confidence in the administration of justice be maintained if the Court adopts a test that reflects the reaction of an ordinary reasonable member of the public to the irregularity in question rather than the conclusions of the Judge.

 

67. Notwithstanding the criticism of the test formulated in R v. Gough (supra.), Lord Browne-Wilkinson in Pinochet (No 2) (supra. at 136)  thought it unnecessary to review the test formulated in R v. Gough (supra.), in the light of the subsequent decisions in Canada, New Zealand and Australia.

 

68. However, Lord Hope of Craighead did so in Porter v Magill [2002] 2 AC 357 in the light of the decision of the Court of Appeal in In re Medicaments and Related Classes of Goods (No. 2) [(2001) 1 WLR 700] and held (at 727, para. 85) that :

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

 

69. In many parts of the Commonwealth, although disqualification for apparent (apprehended) bias, viewed from the perspective of a fair-minded lay observer or other reasonable person, is part of the law, the standard applied under the test differs from jurisdiction to jurisdiction.

 

70. In Canada, the test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board [1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369]. Though he wrote dissenting reasons, de Grandpré J.’s articulation of the test for bias has been consistently endorsed. De Grandpré J. stated, at pp. 394-95:

 

“[t]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information.... [T]hat test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

 

71. In President of the Republic of South Africa v South African Rugby Football Union [(1999) 4 SA 147, para. 48] the Court described the question to be posed as ‘whether a reasonable, objective and informed person would on the correct facts apprehend that the Judge has not and will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel”.

 

72. In Australia, the apparent or apprehended bias test is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide [Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [6]; quoted in Charisteas v Charisteas (2021) 393 ALR 389].

 

73. In Government of Seychelles & Anor v Seychelles National Party & Ors; Michel & Ors v Dhanjee [SCA CP 4/2014) [2014] SCCA 33 (12 December 2014)] this Court was of the view that it would make sense to adopt the test formulated in Magill (supra). The Court went on to set out the Recusal Guidelines. However, they were qualified by the exhortation that the Recusal Guidelines have to be used with imagination rather than dogmatically.

 

Independence of the Judiciary

 

74. Article 119(1) of the Constitution declares that the judicial power of Seychelles is vested in the Judiciary. According to the preamble to the Constitution, the People of Seychelles adopted the Constitution. Hence, Judges exercise the judicial power of the People of Seychelles.

 

75. Article 119(2) of the Constitution declares that the Judiciary shall be independent and be subject only to the Constitution and the other laws of Seychelles. The importance of the independence of the Judiciary is underscored by its recognition as a fundamental human right and freedom. Article 19(7) of the Constitution states that “Any court … shall be independent and impartial, … the case shall be given a fair hearing…”.

 

76. Independence of the Judiciary encompasses two distinct concepts. They are structural independence and functional independence.

 

77. Structural independence of the Judiciary is established by adopting constitutional ideologies such as separation of powers, independent processes for the appointment, transfer and disciplinary control of Judges, security of tenure and prohibition against reduction of salary of a Judge during his or her tenure.

 

78. Functional independence of the Judiciary is established by ensuring that Judges have the freedom to dispense justice impartially and according to law free from any extraneous reasons or from any interventions by the other organs of government or any other party.  

 

79. Hence an important component of functional independence of the Judiciary is the ability of a litigant to challenge a Judge from hearing his or her case for actual or apparent (apprehended) bias. The public confidence in the impartial exercise of the judicial power of the People is further institutionalized by such processes.  

 

80. Accordingly, an application for recusal made pursuant to the Recusal Guidelines must be viewed as an exercise of the fundamental human right and freedom recognized in Article 19(7) of the Constitution and not as a frivolous and vexatious act. However, I must hasten to add that recusal applications can be made by litigants for reasons other than a reasonable apprehension of bias on the part of the judge. It can be used for forum shopping to try and obtain a bench which is perceived to be more sympathetic to one’s cause. Hence it is important that recusal applications should not be allowed merely because it is desirable on the part of the judge not to hear the case.

 

81. In this context, the following observations of  Chadwick LJ in Triodos Bank NV v Dobbs [(2001) EWCA Civ 468, para. 7] are instructive:

“It is always tempting for a judge against whom criticisms are made to say that he would prefer not to hear further proceedings in which the critic is involved. It is tempting to take that course because the judge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If the judges were to recuse themselves whenever a litigant – whether it be a represented litigant or a litigant in person – criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases simply by criticising all the judges that they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himself simply because he had been criticised – whether that criticism was justified or not.” (emphasis added)

 

                        Recusal of All Judges

 

82. The Constitutional Court was of the view that the Recusal Guidelines applied only for situations where recusal of a presiding Judge or a bench is sought not where the recusal of all current Judges and Justices in the Supreme Court and the Court of Appeal is sought. On a plain reading of the Recusal Guidelines, that may well be a sustainable interpretation.

 

83. However, it overlooks the fact that the doctrine of bias which disqualifies a Judge from hearing a case is a particular application of the fundamental human right and freedom recognized in Article 19(7) of the Constitution. The Court in Government of Seychelles & Anor v Seychelles National Party & Ors (supra) only sought to provide procedural guidance on the exercise of that fundamental human right and freedom and was not in any way seeking to curtail its full application. Moreover, the Constitutional Court overlooked the exhortation in Government of Seychelles & Anor v Seychelles National Party & Ors (supra) that the Recusal Guidelines have to be used with imagination rather than dogmatically.

 

84. It may well not have been within the contemplation of the Court in Government of Seychelles & Anor v Seychelles National Party & Ors (supra) that there may be an occasion where an objection is taken to the whole Court hearing any matter. Nevertheless, the facts in this case are unusual to say the least. Here, a news report was published on the State House website wherein the 2^nd Respondent (President of the Republic of Seychelles) acknowledged the involvement of the judiciary, among other organisations, in the preparation of the Tenth Amendment. 

 

85. In this context, it is important to examine the concept of bias. It is an attitude of the mind which prevents a Judge from making an impartial determination of the issues that arise for determination. In Webb v The Queen [(1994) 181 CLR 41, 74] Deane J. identified four main categories in which a reasonable apprehension of bias may arise.  They are interest, association, extraneous information, and conduct.
86. The interest category is where a Judge has an interest, directly or indirectly, and whether pecuniary or otherwise, in the outcome of a decision. In the second category, association, a Judge’s association with a party or other person involved in the proceedings may result in an anxiety of bias which includes relationships with family members, personal friends, counsel, witnesses, or organisations that may suggest a lack of impartiality. In the third category, extraneous information, an apprehension of bias might arise where a Judge has knowledge of some prejudicial but inadmissible fact or circumstance that prevents him from bringing an impartial mind to the process of decision making. The fourth category, conduct, is where the conduct of the Judge, either in the course of, or outside, the proceedings, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment.

 

87. The circumstances relied upon by the Appellants overlaps between the first, second and fourth categories. The statement relied upon by them states that the Judiciary (Supreme Court and the Court of Appeal) was involved in the preparation of the Tenth Amendment. A fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that all the Judges are biased as they are called upon to examine the constitutionality of a law, the preparation of which they were allegedly involved in.

 

88. In these circumstances, I am of the view that the Constitutional Court erred in concluding that the Recusal Motion was frivolous and vexatious for seeking the recusal of all the Judges of the Constitutional Court.

 

89. For all the foregoing reasons, we set aside the Ruling of the Constitutional Court dated 24^th January 2023.

 

90. We make the following further directions with a view to ensuring the efficacious conclusion of the matters pleaded in the Recusal Motion:

 

1. The learned Chief Justice and the other two learned Judges of the Constitutional Court who heard the Recusal Motion will now place on record their views on the facts and their relevance to the recusal request.
2. The learned Chief Justice shall thereafter provide a similar opportunity to all the other learned Judges of the Constitutional Court to place on record their views on the facts and their relevance to the recusal request.

 

3. There may be a concern on the part of the Appellants to the same bench, i.e. the learned Chief Justice and the other two learned Judges who heard the Recusal Motion and rejected it and refused leave to appeal, taking any further part in this matter even if no apparent (apprehended) bias is established upon a consideration of their views on the Recusal Motion.

 

The general principle is that merely because a Judge has previously delivered a ruling or dealt with other aspects of the litigation in respect of which the application for recusal is made, or that the Judge has previously (whether in the same case or another case) found the evidence of one of the parties or a witness to be unreliable, is not by itself sufficient to give rise to apparent bias on the part of that Judge.

 

In Locabail v Bayfield [(2000) QB 451 at 480], it was held that the mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. Moreover, In Shaw v Kovac [(2017) EWCA Civ 1028, paragraph 25] the Court of Appeal held that the fact that the appellant did not wish to have two judges sitting on her appeal who had previously been involved in decisions that were adverse to her could not, without more, result in recusal.

 

Nevertheless, in our considered view, the learned Chief Justice and the other two learned Judges of the Constitutional Court who made the Ruling and refused the application for leave to appeal, both of which we have now set aside, should not take any further part in the hearing of this application or any other applications connected with this application. We hasten to add that this is not in any way based upon a specific finding of actual or apparent (apprehended) bias on the part of any one or more of the three learned Judges.

 

4. Once all the learned Judges of the Constitutional Court have placed their views on record, the next most senior Judge of the Constitutional Court (“Senior Judge”) who passes the test of bias set out in (5) below, after excluding the learned Chief Justice and the other two learned Judges of the Constitutional Court who made the Ruling, shall consider the Recusal Motion taking into consideration the guidance we have given in this judgment.

 

5. In that consideration, the question to be ascertained is whether any Judge of the Constitutional Court was involved in the amendments of the Tenth Amendment which includes, but is not limited to, whether any such Judge, did expressly or impliedly or directly or indirectly:

 

1. 1.          assist in the preparation of the Tenth Amendment;
   2. advise on the constitutionality of the Tenth Amendment;
   3.    make any observations on the Tenth Amendment.

 

6. Where it is found that there are at least three or more Judges of the Constitutional Court who are qualified to hear and determine the matter, the Senior Judge shall place on record the reasons for such conclusion and nominate any three of those Judges to hear and determine the main application.

 

7. Where it is found that there is no Senior Judge qualified to take further steps as alluded to above or a lack of quorum to constitute a three Judge bench due to any one or more of the reasons set out above, the learned Chief Justice shall request the President to appoint a person or persons, as the case may be, as acting Judge in terms of Article 128(2)(c) of the Constitution to enable the constitution of a three Judge bench of the Constitutional Court to hear and determine the main application. Such appointment should be made in accordance with the provisions of the Constitution.

 

 

 

 

91. The appeal is allowed. Parties shall bear their costs.

 

 

 

_____________________      

J. De Silva JA

 

 

I concur:                                                     ____________________       

Dr. L. Tibatemwa-Ekirikubinza JA

 

 

 

I concur:                                                     ____________________

                                                                   K. Gunesh-Balaghee JA

 

 

Signed, dated and delivered at Ile du Port on 3 May 2024.