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IN THE CONSTITUTIONAL COURT OF SEYCHELLES
Wavel Ramkalawan of St Louis, Mahe Petitioner
Versus
1. The Republic (herein represented By The Attorney General)
2. The Attorney General of National House, Victoria Respondents
Constitutional Court Case No 1 of 2001
(Before A.R.Perera J (Presiding), N.Juddoo J, D.Karunakaran J)
Mrs A.Georges with Mr B. Georges for the Petitioner
Mr A.Fernando Attorney General with Miss F.Laporte for the Respondent
JUDGMENT
Perera ACJ
The petitioner, a member of the National Assembly, was summoned as a witness before a Committee set up under Standing Order 80(1), to investigate an incident which occurred in the precincts of the National Assembly during the morning tea break of Tuesday 11th November 1997 between himself (Hon. Wavel Ramkalawan) and Hon. Barry Faure.
The Committee, after inquiry, submitted its Report dated 18th November 1997 to the National Assembly. The Committee concluded that there were verbal provocations and insults by both members, but that the physical assault by Hon. Ramkalawan, on Hon. Faure, was disproportionate to the provocation offered. They therefore recommended that
(1) Provocation and insult on personal basis in the Chamber and in the precincts of the Assembly be reprimanded by the Speaker.
(2) In the circumstances of threats and physical assaults, strict punitive measures be applied.
(3) The offending member Hon. W.Ramkalawan be subject to strict disciplinary measures under the provisions of Section 28 of the National Assembly (Privileges, Powers and Immunities) Act.
(4) The Speaker invokes order 91 of the standing orders in order to initiate action, against Hon. W.Ramkalawan under Section 23 (a) of the said Act.
It is not in dispute that consequent to the 3rd recommendation, the petitioner was suspended from seven sittings of the National Assembly with loss of salary and allowance during that period. Such punishment was imposed under Section 28 of the National Assembly (Privileges, Powers and Immunites, Act)
(hereinafter referred to as the National Assembly Act) as a contempt of the Assembly, and not for the offence of assault under Section 23 (a) thereof.
The National Assembly accepted the 4th recommendation of the Committee and referred the finding of assault, to the Attorney General under Standing Order 91(c), upon a motion that was passed by 21 votes for, with no vote against (see page 35 of National Assembly proceedings of 18th November 1997). Consequently, criminal proceedings were instituted before the Magistrates Court in case no C799/98, on 12th September 1998, charging the petitioner with the offence of Assault Occasioning Actual Bodily Harm, under Section 236 of the Penal Code. That case is still pending before that court.
Section 15(1) of the National Assembly Act provides that every witness before the Assembly or an Authorised Committee who shall answer fully and faithfully any question put to him by such Committee to its satisfaction, shall be entitled to receive a certificate stating that such witness was upon his examination so required to answer and did answer such question. Under sub-section (3) thereof, on the production of such certificate a civil or criminal, court shall stay proceedings against such witness for any Act or thing done by him before the time and revealed by the evidence of such witness.
It is not in dispute that the petitioner did not obtain such a certificate from the Chairman of the Committee before the report was presented to the National Assembly, on 18th November 1997. However, the petitioner obtained such a certificate from Mr Georges Bibi, who was the ex-chairman of the said Committee, on 18th November 1998. That was one month after the criminal case was filed in the Magistrates Court, and nearly eight months after a new Assembly had been elected after a General Election. The Learned Senior Magistrate rejected that certificate on the ground that Mr Bibi was functus officio and that hence, it was invalid. That decision was upheld by the Supreme Court in revision, and also subsequently by the Court of Appeal. The Court of Appeal upholding the decisions of the Magistrates Court and the Supreme Court as regards the validity of the certificate, proceeded to state that- The Speaker of the National Assembly may, however, in terms of Section 35 of the Act at all times exercise the powers conferred upon him by this Act even though the Assembly may have been prorogued or dissolved.
This Court in a previous ruling unanimously decided that such pronouncement was obiter dicta, as the matter before that court was limited to a consideration of Section 15(1) and (2) as regards the validity of the certificate.
That Court of Appeal itself confirmed this when they stated that At this stage, the relevant portions of Section 15 are Sections (1) and (2) since our present inquiry is focussed on the validity or otherwise of the certificate that was issued by Mr Georges Bibi, Erstwile Chairman of the National Assembly Committee.
The petitioner had however interpreted that pronouncement as a finding of the Court of Appeal, and in his letter dated 17th November 2000 to the Speaker, claimed that that Court had nonetheless stated that (he) was entitled to a certificate and that the same could be issued under the hand of the speaker. The Speaker, by letter dated 5th January 2001 replied that having read the judgment of the Court of Appeal, and gone through the report of the committee of inquiry, and the judgment of the Supreme Court, he had reached the following conclusions.
1. Since I did not chair the Committee of Inquiry nor was a member of that Committee, I am not in a position to say whether the requirements of SS(i) of S.15 were met, nor do I believe I can issue the certificate under S.S.(2) which clearly states that in case of a witness before a committee, the certificate shall be under the hand of the chairman thereof.
However, even if I was entitled to issue a certificate in compliance with S.15 (1) and the Court of Appeal Judgment on page 3 refers to satisfying the requirements of S.S.(1) of S.15, on a reading of the report of the Committee of inquiry it cannot be said that you answered fully and faithfully questions put to you to
their satisfaction.
I am not convinced that S.35 of the Act is relevant to this case.
In paragraph 9 of the Petition, the petitioner summarising that reply avers that
By a letter dated 5th January 2001, the Speaker, contrary to the said finding of the Court of Appeal, refused to issue the said certificate on the grounds, inter alia, that he was not entitled to issue the said certificate and that, even if he had been so entitled, he was not of the opinion that the petitioner had fully and faithfully answered questions put to him.
In paragraph 10 of the petition, the petitioner avers that the Speaker erred in his decision that he was not entitled to issue the said certificate and also that the petitioner had not fully and faithfully answered questions put to him by the Committee.
Further in paragraph 11 of the petition, the petitioner avers that the Speaker was obliged in law to issue such certificate as he had admitted the offence of assault and that thereby fully and faithfully answered the questions put to him by the Committee.
The prayers in the petition therefore are-
That the refusal of the Speaker to issue the said certificate contravenes Article 19 of the Constitution by denying him a fair trail.
That his trial for the offence of assault before the Magistrates Court contravenes Article 19 of the Constitution.
The alleged convention of Article 19 is based on the refusal of the Speaker to issue the certificate,
and the consequent continuance of the trial before the Magistrates Court.
It is manifest in the prayer for the said declarations in the petition that there is an invitation to this court to review the conclusions reached by the Speaker as regards the issuing of the certificate.
It was however submitted by Learned Counsel for the petitioner that it was not felt necessary to determine the issue of the power of the court to review that decision as the declaration sought is under Article 46 (5) (a) of the Constitution, and not under Article 46(5) (c) thereof. That would involve a mere declaration
simpliciter, and not one followed by the issuance of a writ or directions to enforce the charter of Fundamental Rights. Learned Counsel relied on the Court of Appeal decision in Citra Hoareau v. The
Government of Seychelles (S.C.A. no 42 of 1999) in this respect. In that case this court interpreted Articles 130(4) (a) and (b) disjunctively, and ruled that a petitioner could not pray only for the issuing of a writ under sub-article (c) without praying for a declaration either under sub-article (a) or (b). The Court of Appeal accepted the contention of Counsel for the Appellant and held that implicit in her clients remedy under 130(4) (c) for writs of certiorari and mandamus to issue (was) a prayer for a finding
that the Act or omission constitutes a contravention of the Constitution.
That decision only established that one could pray for a remedy such as the issuing of a writ, leaving the Court to gather the alleged contravention from the pleadings. That Court, did not hold that a prayer for a declaration was not necessary. Even in a case for judicial review, there must first be a finding that the decision of a Minister or a statutory authority is ultra vires or illegal for any of the writs prayed for to be issued. The prayer in that case was only for a writ of certiorari to quash the decision of a Minister and for a writ of mandamus to compel him to perform a particular duty. In the present case, the petitioner has prayed only for two declarations. He has admitted in paragraph 13 of the petition that the exercise by the Speaker of his powers to issue the said certificate is not subject to the jurisdiction of any Courts and hence he is bound by that decision.
This is based on the ouster clause contained in Section 34 of the National Assembly Act. However Learned Counsel for the petitioner submitted that, all that the petitioner was asking the Court to do, was not even to consider whether the Speaker was right or wrong, but to examine the proceedings of inquiry independently, and to declare that as the petitioner had admitted the assault, he had answered fully and faithfully and hence was entitled to a certificate, but as such certificate has not been issued, his right to a fair trial has been contravened.
Learned Counsel for the petitioner further submitted-
Thus, in making the declarations the court will impliedly be saying that the Speaker ought to have issued the certificate and that the Court, if possessed of the Speakers powers, would have issued the certificate. This may appear to be a review of the Speakers decision but actually it is not, because the satisfying of the two conditions are matters external to any action of the Speaker which the Court is today in as good a position as the Speaker to appreciate, and the issuing of the certificate is an automatic non-discretionary consequence of the conditions being satisfied.
If therefore the granting of the declarations sought gives the appearance of the Court reviewing the Speakers decision, that is merely an appearance and not a fact because the decision need not be reviewed for the declarations to be granted.
The gist of that submission was that the satisfaction of the two conditions required to be entitled to a certificate, namely that (1) the petitioner was a witness before the Committee and (2) that he answered the questions put to him fully and faithfully were matters which the Speaker could have considered from the report of the Committee of inquiry, and which this court as well could consider independently. The petitioner contends that as the inquiry was regarding an assault on a member, and as he admitted that
offence when he was called as a witness, obviously he had answered fully and faithfully on that issue, and hence he was automatically entitled to a certificate under Section 15(1).
The Learned Attorney General conceded that this Court could refer to the proceedings before the Committee. He however submitted that in view of paragraph 13 of the petition where the ouster clause in Section 34 is admitted, the Court ought not to review the decision of the Speaker.
It was submitted by Learned Counsel for the petitioner that the Petitioner and Hon. Faure should have been called before the committee as parties or defendants, and not as witnesses.
But before a fact finding Committee without any Penal Powers, everyone summoned to appear would be witnesses.
In fact, the Chairman of the Committee of inquiry by letter dated 11th November 1997 (exhibit AG2)
addressed to the petitioner requested him to attend a meeting of the Committee to assist the Committee
in its investigations.
Section 14 of the National Assembly Act refers to every person summoned to attend to give evidence.
Generally such witnesses may become parties or defendants to the incident inquired into only upon the conclusion of the investigation, and on the basis of the findings. Hence though summoned as a witness,
or someone who could assist in the investigation the certificate under Section 15 (1) is available to any person against whom an accusation relating to the Commission of an offence has, or can be levelled, on the basis of his testimony, which in the normal course may result in a prosecution.
The rationale of Section 15 of the National Assembly Act, is the privilege against self-incrimination. One of the Fundamental values enshrined in criminal jurisprudence is that an accused person cannot be required to facilitate his conviction by providing evidence against himself. In Seychelles, this is a Fundamental Right recognized in Article 19(2) (g) of the Constitution. Section 14, read with Section 15 of the said Act is intended to encourage persons to come before the National Assembly or an authorised Committee, and to give evidence fully and faithfully without being apprehensive of Civil or Criminal liability. The purpose of this privilege is to protect the Assembly collectively, and the members individually, from any obstruction or interference of their functions, thereby maintaining the Assemblys independence and authority. In the case of Bradlaugh v. Gossett (1884) 12. Q.B.D. 271, the Court refused to declare void an order of the House of commons preventing a member who had been elected from taking oath.
Similarly, in The King v. Graham Campbell, Exparte Herbert (1935) 1.KB 594, it was held that the House of Commons had the privilege of regulating its own internal affairs and procedure, including the sale of intoxicating liquor without a licence, through its employees in the Refreshment Department of the House, and that although it was an offence under the Licensing Act, such offence fell within the privileges of the House so that no Court of Law had jurisdiction to interfere.
What then is the position of the judiciary and the legislature in Seychelles?
Basically, there is a separation of powers, and the Courts should not interfere with the Internal Affairs of the National Assembly including their privileges, immunities and powers.
However, Eskine may states that-
After some three and a half centuries, the boundary between the competence of the law Courts and the jurisdiction of either House in matters of privilege is still not entirely determined. the courts on the other hand regarded the Lex Parliamenti not as a particular law but as part of the law of the land, and therefore within their judicial notice. There might be areas of the application of privilege within which it was proper for either House exclusively to make decisions, but particularly though not solely where the rights of third parties were concerned, the Courts considered that it was for them to form their own view of the law of parliament and to apply it.
In the present case, the petitioner is not a third party in that sense. Although he is a member of the Assembly, he is an accused before a court of law as an ordinary citizen. The Act of assault in the precincts of the Assembly was an offence under Section 23(a) of the National Assembly Act. This Act of assault was referred to the Attorney General under Standing Order 91(c) upon a motion being duly passed to that effect, for prosecution under the National Assembly Act as a specified offence under that Act. However the Attorney General exercising his discretion under Standing Order 91(d) prosecuted him under the
Penal Code, as an ordinary citizen. The vital issue is whether the petitioner was charged under the Act or the Penal Code, he had the right to fair hearing guaranteed by Article 19 of the Constitution.
The prosecution of the petitioner is now a matter completely outside the province of the National Assembly. This Court has already accepted the submission of Learned Counsel for the Petitioner that
the fairest hearing, is to be able to argue that one ought not to have a hearing at all.
The petitioner avers that the resulting position of the Speakers reply is that he has been deprived of the possibility of obtaining a certificate, which will stay criminal proceedings against him in the Magistrates
Court. This Court is vested with the sole jurisdiction in respect of matters relating to the application, contravention, enforcement or interpretation of the Constitution.
In terms of Article 5, thereof, the Constitution is the Supreme Law of Seychelles and any other law
found to be inconsistent with it would be, to the extent of the inconsistency void. The petitioner is before this Court on an alleged contravention of Article 19 of the Constitution. This complaint has to be considered by this court. In doing so, it becomes necessary to examine the source of such alleged
contravention. The petitioner avers that it is the refusal of the Speaker to grant a certificate under
Section 15(1) of the said Act.
Here the provisions of the Constitution, which is the Supreme Law must prevail over Section 34
of the National Assembly Act to suppress the mischief and to advance a remedy. Hence although Section 34 grants immunity to the Assembly and the Speaker to exercise their powers and functions vested in them without interference by the court, yet when a persons Fundamental Right is alleged to have been contravened by the exercise of such power, this court cannot refuse to consider such complaint on the ground that the decision of the Speaker or of the Assembly is not justiciable. To do so would be to abdicate
the powers vested in this court by the Constitution.
In the case of The Queen v. Holl (1881) Vol. 7 Page 575, the Court held that a certificate issued by commissioners inquiring corrupt practices at an election was a certificate of their judgment which was conclusive and that their refusal to give such certificate, whether that judgment was right or wrong could not be reviewed by a writ of mandamus. That was on the basis that such writ was available to compel a public duty which had been imposed by law.
But if that duty was owed by the crown or a servant of the crown, then mandamus could not issue. But in the present matter, the petitioner does not seek relief under Article 46(5) (c), but under Article 46(5) (a) alone. This Court is therefore concerned only with the alleged contravention of the Constitution.
Article 45 of the Constitution provides that the Chapter on the Seychelles Charter of Fundamental Human Rights and Freedoms shall not be interpreted so as to confer on any person or group the right to engage in any activity aimed at the suppression of a right or freedom contained in the Charter.
Article 46 proceeds to give a right to a person who claims that a provision of the Charter has been or is likely to be contravened in relation to him by any law, Act or omission, to apply to this court.
This court has already ruled that the petitioner has the locus standi to prosecute the petition before court. Hence despite the immunity contained in Article 34 of the National Assembly Act, and the General
reluctance on the part of the courts to interfere with internal the affairs of the legislature, a court vested with jurisdiction over Constitutional matters is in no way fettered from examining, through not reviewing any Act or omission of the National Assembly, the Speaker, or any officer in determining an allegation of a
contravention of a Fundamental Right or for that matter any other right vested by the Constitution in any person. In the case of Fotofili and Others v. Siale (1988) L.R.C (Const) 102, the Privy Council, in an Appeal from Tonga, held inter alia, that although in England an Act of Parliament could not be challenged on the ground of irregular parliamentary procedure, the position was different under a written Constitution, where, if on a true Construction of the Constitution some event was made a condition for the validity of a law, the Court had jurisdiction to examine whether the condition had been met even if that involved an inquiry into the internal proceedings of the Assembly.
In
the case of the Attorney
General
v. Ramgoolam
(1993)
SCJ 198
(Mauritius),
the respondent was absent from the sittings of the National Assembly
for a continuous period of three months without the leave
of the
Speaker as required by Section 35(1) (e) of the Constitution. The
Attorney General sought a determination from Court whether
the seat
of the Respondent had become vacant. The Court held inter
alia
that
Upon
the contention that it would not be proper for the Court to hear
evidence which might breach the privileges of the National
Assembly
in the application of the standing orders made in pursuance to
Section 48 of the Constitution; in Mauritius, our Constitution
had
conferred on the Supreme Court a fundamental jurisdiction concerning
Constitutional matters unknown to the Courts in the United
Kingdom,
and hence Eskine may necessarily had to be read subject to the
particular jurisdiction which the Constitution had so vested
in the
Supreme Court.
It
was further held that
where Parliament exercise sovereign powers under the Constitution and
the Courts are empowered to exercise a particular jurisdiction
which
itself requires an enquiry into the exercise of these powers by
Parliament, then the jurisdiction of the Courts must be exercised
to
the appropriate extend in order to enable it to determine the
particular question that is before it.
In
the case of Tong
v. Taniera
& Or
(1987) L.R.C. (Const)
1, the leader of the Christian Democratic Party of Kiribati applied
to the court for a declaration that the Speaker of the House
of
Assembly had been in breach of Section 77(2) of the Constitution in
not summoning the Assembly upon being advised to do so by
1/3 of the
members. The court inter
alia
held that by virtue of Section 88(1) of the Constitution (which
is similarly worded as Section 46(1) of our Constitution)
it had jurisdiction to consider the reasons given by the Assembly.
The Court after considering the reasons found that the Speaker
had a
discretion in the matter and that he had exercised that discretion
upon relevant
considerations.
The
principle established in those cases therefore was that the Court had
jurisdiction to consider a decision of the House Assembly
to
ascertain the validity of an allegation of a contravention of a
Constitutional right.
In
the present case, examining the reasons adduced by the Speaker in his
reply dated 5th
January 2001 for the purpose of ascertaining whether there is a
contravention of Article 19 of the Constitution as alleged by the
petitioner, I would first consider the 3rd
reason as to the relevancy of Section 35 of the National Assembly
Act. That section envisages a position where the Speaker continues
to hold office despite the prorogation or dissolution of the National
Assembly. The Learned Attorney General submitted that the
original
House of Assembly (privileges,
immunities and powers)
Ordinance 1975 came into force on 3rd
November 1975 after the promulgation of the Constitution of 1975
which provided in Article 38(2) thereof that the
Speaker held office during her
Majestys
pleasure, and
that he
shall not vacate his office by
reason
only of a
dissolution
of the House of Assembly.
This position was the same under the Constitution of the 1st
Republic 1976, save that the Speaker held office at the pleasure of
the President. In the Constitution of the 2nd
Republic 1979, the Speaker was appointed by the President. The
Constitution of the 3rd
Republic promulgated in 1993 introduced for the first time a
provision that the Speaker and Deputy Speaker shall be elected by
the
National Assembly from
among the members of the Assembly.
(Article 83(1).)
Section 35 of the
National Assembly Act provides that
For
the purposes of this Act, the Speaker may, at
all times
exercise the powers conferred
upon him
by this Act
even
though the Assembly may
have
been prorogued or dissolved.
The
powers conferred on the Speaker by the National Assembly Act however,
are powers to safeguard the privileges, immunities and
powers of the
Assembly and its members. Under Section 15(1), he has the power to
issue a certificate under his hand, to a witness
who had answered
questions put to him fully and faithfully before
the Assembly of the House.
The Court of Appeal however extended the meaning of that Section to
include the
powers
conferred
upon the former Committee Chairman
and, in his absence, the clerk who shall exercise such powers from
the records of the Assembly. These dicta are based on the provisions
of Section 36(2) (b) of the said Act which states that when the
Speaker is absent, the powers vested in him shall be vested in
the
Clerk.
The
Court of Appeal stated thus-
It
is obvious that when exercising the Speakers powers,the Clerk will
do so from records of the Assembly.
In our view, as the Speaker presides over the proceedings of the
Assembly, once the Chairman of an authorised Committee tables
the
Committees report before the Assembly (and thereby ceases to be
its Chairman) the Speaker shall exercise such
powers under Section 15(2), including
these conferred upon the former Committee Chairman
and in
his absence, the Clerk shall exercise such powers from the records of
the Assembly.
This interpretation is consonant with the purpose of Section 15
which entitles the witness to a certificate either to be issued
at
once or subsequently.
With respect, this
pronouncement was based on the following premises that-
A certificate
under Section 15(1) can be issued by the Speaker or the Clerk from
the records, on an objective consideration of
the findings.
The words to
its satisfaction in Section 15(1) and the words conferred upon
him in Section 35 could be considered
objectively.
That the
office of the Speaker continues in perpetuity, and a Speaker elected
by an Assembly consequent to a General Election
held subsequent to
the dissolution of the Assembly in which the inquiry was held, would
also be eligible to issue a certificate
in respect of an inquiry
held under the Chairmanship of the previous Speaker, or that of an
authorised Committee set up under
his Chairmanship.
That a witness
was entitled to a certificate at any time irrespective of whether
the Assembly had been prorogued, dissolved and
even where a new
Assembly had been convened after a General Election.
The rationale of
the pronouncement was that if in the absence
of
the Speaker, the Clerk could under in Section 36(2) (b), exercise the
powers vested in the Speaker by Section 15 and 31, by reference
to
records, the Speaker himself was in a better position to do the same.
Section 15(2) in
particular, provides that a certificate in respect of a witness
before
the Assembly be under the hand of the Speaker,
and that of a witness before
a committee be
under the hand
of the Chairman thereof.
Section
31 protects persons responsible for publications authorised by the
Assembly. Such an authorisation would usually be a
matter of
record. Hence a person sued in a Civil or Criminal case could obtain
a certificate under
the hand of the Speaker
certifying such authorisation, and such certificate when produced
before the Court will not only stay proceedings but also would
deem
such proceedings to be finally determined.
The powers of the
Speaker under Section 15(2) and Section 31 are limited to the issuing
of the respective certificate. Both certificates
are based on
matters of records arising from proceedings before the Assembly.
They need not be based on any subjective consideration
of the
Speaker. Hence, as was submitted by Learned Counsel for the
petitioner, the satisfying of the two conditions in Section
15(1) are
matters external to any action of the Speaker.
The power to issue
certificates under Section 15(2), is therefore vested in the Speaker
only when they arise from records of evidence
of witnesses before the
Assembly and in the case of Section 31, from reports, papers,
minutes, votes or proceedings in which the
Assembly has authorised
any publication.
It was the view of
the Court of Appeal that since the Speaker presides over the
proceedings of the Assembly, once the Chairman of
an authorised
Committee tables the report, the Speaker, would be able to exercise
his powers under Section 15(2) including those
conferred upon the
former Committee Chairman. However, in his absence, the Clerk shall
exercise such powers from the records of
the Assembly. Hence it was
envisaged that the Clerk could also issue a certificate by reference
to the record. In the case of
the Speaker, the Court was of the view
that after the Chairman of an authorised Committee hands over the
report of the Committee,
the Speaker could have the power to issue a
certificate in the same way as he would have done in respect of a
witness before Assembly.
But in case of a witness before the
Assembly, a certificate would be issued under the hand of the Speaker
only if the Assembly
was satisfied that he had answered questions put
to him fully and faithfully. Hence in the same manner, if the
Speaker was to
issue a certificate in respect of a witness before an
authorised Committee, there must be sufficient material on record to
conclude
that the