Ah-Man v Government of Seychelles and Others (1/2002) ( of ) [2003] SCCC 1 (05 May 2003);


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-








  1. 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.









  1. 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 petitioner’s 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 4
th
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 4
thMarch
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 husband’s 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 one’s 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