IN THE CONSTITUTIONAL COURT OF SEYCHELLES
LEONEL AH-MAN, WAYE HIVE
PETITIONER
VERSUS
1. THE GOVERNMENT OF SEYCHELLES
(herein rep. by the Attorney General)
2. THE COMMISSIONER OF POLICE
(herein rep. by Mr Andre Quilindo)
3. THE ATTORNEY GENERAL
RESPONDENTS
Constitutional Case No. 1 of 2002
A.R.Perera J (Presiding), N.Juddoo J and D.Karunakaran J
Mr. A.Derjacques for the Petitioner
Mr. R.Govinden together with
Mr. B.Hoareau for the Respondents
RULING
Perera J
The petitioner alleges a contravention of Articles 18(Right to Liberty and Security), Article 20 (Right to Privacy, and Article 25(Right to Freedom of Movement).
It is averred that on 4th March 2002 he was at the Seychelles International Airport to board the Air Seychelles Flight HM 061 to South Africa, when Police Officers detained him and made a body search, and also searched his luggage and unlawfully seized US $ 3,350 and 70 S.A. Rands.
The averments in the petition are supported by an affidavit of facts sworn by the petitioner. However, six documents have been listed with the petition, but have not been exhibited therewith.
The present ruling concerns a motion dated 4th September 2002 filed by the petitioner seeking-
To adduce oral evidence of the petitioner to establish the circumstances of the alleged breaches of
Constitutional Rights, sources of the foreign currency in his possession, the circumstances of its return by the respondents, and to produce all the documents listed in the petition.
To adduce the evidence of three persons, namely, Mr Bernard Georges, Mrs Cecile Berlouis and Mr Alain St. Ange, to depone on their personal experiences of similar searches done on them at the Airport, and the general practice adopted by the respondents at the Airport.
Paragraph (1) is based on the averments in the petition that the petitioners Fundamental Rights have been contravened. In terms of Article 46(8) of the Constitution, where a contravention of a Fundamental Right is alleged, the petitioner needs only to establish such contravention on a prima facie basis, and
the burden of proving that there has not been a contravention, where the allegation is against the State, is on the State.
Basically, the rules of the Constitutional Court do not expressly provide for the adduction of oral evidence. Hence, any alleged contravention of a Fundamental Right can be established on a prima facie basis, by way of a petition and an affidavit of facts. Jurisprudence has extended that procedure by permitting the filing of additional affidavit evidence and exhibits, if any. This Court has also extended this procedure under the provisions of Rule (2) and ruled that in exceptional cases, the Court would consider particular applications and permit the adducing of oral evidence on limited issues, if it is found absolutely necessary for the petitioner or the respondent to establish or to dispute an alleged contravention of a Fundamental
Right.
In the present case, the issues as regards the search and confiscation of 70 S.A. Rand and US $ 3500 are admitted by the respondents.
The respondents further aver that after the confiscation, the petitioner was not detained and hence could have resumed his journey to South Africa. The respondents also aver, as also averred by the petitioner in his motion, that the foreign currency confiscated on 4th March 2002 were returned to the petitioner on 10th
April 2002 by Officers of the Ministry of Finance after he produced valid receipts. It is also averred that the confiscation was made on 4th March 2002 as the petitioner failed to produce any valid receipts in proof
of purchase. The affidavits of three Police Officers who were engaged in the search and confiscation, and an affidavit of an Officer of the Ministry of Finance have been produced with the statement of objection of the respondents.
In these circumstances, I do not find any exceptional circumstances in the application of the petitioner to depone on matters which are not materially in dispute. This Court is only concerned with determining the alleged contravention of the Fundamental Rights and not facts to be established by oral evidence as in regular actions following the adversarial procedure.
The pleadings in the case are sufficient to make a just determination of the case. Hence the application to adduce the evidence of the petitioner is disallowed.
Paragraph 2 of the motion seeking to adduce oral evidence of the three named persons, is based on
paragraph 11 of the petition. Hence it becomes necessary to consider that paragraph. Mr. Derjacques, Learned Counsel for the petitioner submitted that he is seeking to call the evidence of these three persons to testify regarding their personal experiences at the airport, and hence to furnish evidence of the alleged
practice. Hence apart from his personal experience, which he has averred in the present petition, the petitioner is seeking to obtain by prayer (d) of the petition, a general declaration that the alleged practice violates Articles 18, 20 and 25 of the Constitution.
Paragraph 11 of the petition is as follows-
Finally, the petitioner avers that as a citizen, businessman, and traveller, the blanket and widely utilised pattern of detaining and searching a vast majority of Seychellois citizens, travelling from and leaving Seychelles at the Seychelles International Airport by the respondents, their servants, and agents,
contravenes the guarantees to Fundamental Human Rights, namely Articles 18, 20 and 25 of the Constitution of the Republic of Seychelles.
In this paragraph, the petitioner is seeking to introduce the concept of public interest litigation to the Constitutional Law of Seychelles.
The Philosophy underlying Public Interest Litigation was explained in the Indian Case of Bandhuan
Mukti Morcha v. India (1984) S.C. 402 as follows-
..where a person or class or persons to whom legal injury is caused by reason of a violation of a Fundamental Right is unable to approach the Court for judicial redress on account of poverty or disability or socially or economically disadvantaged position. Any member of the public acting bona fide can move the Court for relief under Article 32 and a fortiori, also under Article 226, so that the Fundamental Rights may become meaningful not only for the rich and the well to do who have means to approach the Court, but also for the large masses of people who are living a life of want and destitution, and who are by reason of lack of awareness, assertiveness and resources, unable to seek judicial redress.
This is so, as Article 32(1) of the Indian Constitution is more flexible, and provides that the Right to move the Supreme Court by appropriate proceedings for the enforcement of Rights conferred by this part is guaranteed. This Article does not specify who is entitled to seek judicial redress.
Hence, the Indian Courts have permitted the liberalisation of the Standing Rule to include any public spirited individual or association to vindicate the cause of justice. The object of Article 32 of the Indian Constitution is to give effect to the Public Interest in requiring State Agencies to show that they are acting
lawfully. As was held in Maharajah Singh v. U.P. (1976) S.C. 2602,-
Where a wrong against community interest is done no locus standi will not always be a plea to non-suit an interested public body chasing the wrongdoer in Court.
Locus Standi has a larger ambit in current legal semantics than the accepted individualistic jurisprudence of old.
Judicial activism can operate only within the bounds of Constitutional provision. Hence, for example, the main object of the corresponding Article in the Constitution of Sri Lanka is to remedy grievances, and hence the Court has to use the concept of locus standi to identify these interests which give rise to legal grievance and the test has to be restrictively drawn. Article 126(2) of that Constitution provides that an application for redress be brought by the person who alleges that his Rights have been, or about to be
infringed, or his Attorney at law. That limitation was strictly applied in the case of Somawathie v. Weerasinghe (1990) 2. SR1. L.R. 121, where the majority of the Court held that Article 126(2) gave the right of complaint to the person affected or to his Attorney at law and to no other person, and that a wife had no locus standi to maintain a petition complaining of the violation of her husbands Fundamental Rights. So also, in the case of Neville Fernando v. Liyanage F.R.D (2) 409 (Sri Lanka), the Court stated the right to complain of infringement of Fundamental Rights under Article 126, is available only for the
violation of ones own Fundamental Rights. One cannot claim standing in this Court to vindicate the
Constitutional Rights of some third party, however much one may be interested in that party.
Section 17 of the Constitution of Mauritius also provides that-
Where any person alleges that any of Sections 3 to 16 (Fundamental Rights) has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter that is lawfully available, that person may apply to the Supreme Court for redress.
In the United States of America, it has been held in the case of Secy of State v. Munson (1984) 467 U.S. 947 that where a Fundamental Right guaranteed by the first amendment to the Constitution is clearly and directly violated by statute, Society itself has an interest to challenge the statute to maintain the guaranteed right, so that in such a case a person may be allowed to move the Court even though the applicant himself has not been directly affected by the statute.
In the United Kingdom, even in the absence of a written Constitution, the locus standi Rule is generally applied. Yet, as in the U.S.A, an exception is recognised in cases where statute law has affected or is likely to affect the Public in general, but the persons who are directly affected are not likely to come to Court to assert their rights. In such cases an association or an individual has been allowed to fight
for the public cause and challenge the Constitutionality of the law or order, though the petitioner may not be able to show that he has been directly affected. But, it has been held that such petitioner must not be a mere busy body, but a person having a reasonable concern with the matter to which the application relates. In the case of Blackburn v. Attorney General (1971) 2. A.E.R. 1380, the petitioner, a citizen filed two actions seeking declarations that the signature of the Treaty of Rome to enter the common market
by the British Government would be in breach of the law as it would involve an irreversible partial surrender of the sovereignty of the crown in parliament. It was also contended that upon the signing of the
treaty, many regulations made by the European Economic Community would automatically become binding on the U.K, and that the Courts would have to follow decisions of the European Court.
The Court of Appeal unanimously approved the locus standi of the petitioner and agreed with
the fears expressed by him. However, the actions were dismissed on the ground that the statements
of claim did not disclose a cause of action, as while the Treaty making power remained with the crown,
parliament enacted the laws, and the duty of the Court was only to interpret those laws.
In Tanzania, the doctrine of Public Interest litigation has been enacted into the Constitution by virtue of the words every person is entitled, subject to the procedure provided by law, to institute proceedings for the
protection of the Constitution and legality.
In the case of Mtikila v. Attorney General (1996) 1 CHRLD page 11, the applicant challenged several statues, such as the Political Parties Act, which he alleged inhibited the formation of Political Parties, the newspapers Act, certain provisions of the Police Force Ordinance, and certain amendments to the local authorities (Elections) Act. He alleged that those enactments contravened Fundamental Rights Provisions in the Constitution.
The Court held that that Public interest litigation was relevant in Tanzania, as a vast majority of the people could not afford to engage lawyers even when they were aware of an infringement of their rights or the perversion of the Constitution by Statute Law.
Hence notions such as personal interest, personal injury or sufficient interest over and above the
interest of the General Public did not necessarily apply. Consequently, a bona fide litigant, acting for the public good had the locus standi to invoke the jurisdiction of the Court.
Article 46(1) of the Constitution of Seychelles has, as in the Constitutions of Mauritius and Sri Lanka, adopted a strictly individualistic approach to the concept of locus standi of the person seeking redress. The right to complain is limited to the person who claims that a provision of the Charter has been, or is likely to be contravened in relation to him. However, in the case of Roger Mancienne v. The Attorney General (Cons: Case no 9 of 1995) the petitioner challenged Section 5(7) (a) and (b) of the Economic Development Act 1995 on the ground that those provisions contravened Article 27 of the Constitution which guaranteed the Right to equal protection of the law. It was averred that the granting of immunity to investors from prosecution for certain criminal offences, made them superior to the petitioner before the law, and diminished his equality.
This Court adopted a narrow interpretation of Article 46(1) and held that the petitioner had failed to establish that he belonged to the class of investors, but one who could invest US $ 10 million to be eligible for the immunities. That was on the basis of the Rule of reasonable classification, and the principle of
equal treatment of equals, who are in similar circumstances.
The Court of Appeal (Civil Appeal no. 15 of 1996) however disagreed with that finding and held that what was challenged was the legislative classification itself and hence the Court ought not to have adopted a
narrow view and looked for the standing of the petition as an investor. The Court of Appeal proceeded
to the following conclusion-
In terms of Article 46(1) of the Constitution, there may be cases in which a contravention or likely contravention of a provision of the Charter may be alleged only where a person can show that his interest has been injured by the impugned law, act or omission, but it is not in all cases that such injury must be shown in order that contravention or likelihood of contravention may be alleged.
In terms of Article 27(1), the right to equal protection of the law inheres in every person. The substance of the right is that except as permitted by law which is in accord with the Constitution every person has a
right to equal treatment by the law. As must be evident, standing to seek a remedy must be distinguished from the merits of the claim.
The issue of locus standi has nothing to do with the merits of the case but only with the right to seek a remedy. A person who alleges an invalid classification and that by reason thereof everyone else has been made inferior by a law which grants special benefits to others and not to him may allege a contravention
of Article 27 in regard to him just as can one who alleged an imposition of special burdens on him.
A person who belongs to the class on whom discriminatory benefit has been conferred cannot allege that he has been deprived of an equal protection of the law and so he cannot claim contravention or likelihood of contravention in relation to himself, but if his allegation is of discriminatory treatment within that class, he must show that he belongs to that class.
Where a statute is alleged to contravene Article 27 of the Constitution, which guarantees the right of every person to equal protection of the law, the institution of a Constitutional challenge by any person would not violate the Rule of standing contained in Article 46(1), as he would be alleging that he,
as an individual, has been affected, or is likely to be affected by such contravention.
That would be the only exception to the general rule contained in Article 46(1). This is so as a statute is of general application. But for any person to challenge it, he still has to establish that that statute affects him
or is likely to affect him.
In the present case, in paragraph 11 of the petition, the petitioner, in his capacity as a citizen, businessman and traveller is challenging an alleged blanket and widely utilised pattern of detaining and searching a vast majority of Seychellois citizens travelling abroad through the Seychelles International Airport.
The respondents, in one of the affidavits produced, aver that such searches are conducted pursuant to Section 15 of the Criminal Procedure Code and Article 20(2) (a) of the Constitution to detect any
possession of unauthorised foreign currency contrary to Section 3 A of the Exchange Control Act. The
provisions of the Constitution that are alleged to have been contravened, namely, the right to liberty and security, right to privacy, and the right to freedom of movement, are not rights that can be canvassed by persons who have not or are not likely to be directly affected. Where the petitioner in the present case is concerned, he was validly alleged contravention of these rights in relation to him. He cannot however champion the cause of others in respect of those rights, in the same manner as he could have done, if he was alleging a contravention of Article 27 by any provision of a statute. Accordingly, the adduction of oral evidence of the three persons, would be irrelevant to the petition as presently constituted.
Accordingly the motion dated 4th September 2002 to adduce oral evidence of the petitioner and the three named persons, is, for the reasons stated above, dismissed.
......................
A.R.PERERA
JUDGE
Dated this 6th
day of May 2003
N.Juddoo
I agree
......................
N.JUDDOO
JUDGE
Dated this 6th
day of May 2003
D.Karunakaran
I agree
.............................
D.KARUNAKARAN
JUDGE
Dated this 6th day of May 2003