The lawyer claims that by assenting to the Public Order Act, James Michel violated his oath to protect and uphold the Constitution which specifically stipulates that the President has a duty not to assent to bills that may be unconstitutional. Alexia Amesbury also talks about the victory over the insidious POA and gives her take on the cannabis versus heroin fight.
By DB
Seychelles finally has a new Chief Justice who is a woman and a Seychellois. How do you welcome the appointment of Mathilda Twomey?
It came as no surprise; it has been out and about for about a year. As you say, she is a Seychellois, highly qualified both professionally and academically. But despite the fact that she has fought and contributed so much to the re-establishment of multi-party democracy in Seychelles, there has been a hard to shake "perception" that she is pro-establishment and this perception was re-enforced when she brought a case against Ralph Volcere at the beginning of her career as a Justice of Appeal. This was followed by the decision in the PDM and Viral Dhanjee cases. The Viral Dhanjee case, by the way, is now before the Human Rights Committee in Geneva. That said, there are a number of cases in which she has delivered excellent judgments showing that she is not afraid of delivering justice especially when the fundamental rights of the individual have been violated. One such case is the Charitha case, where she granted bail to six of the seven accused, even if to do so meant imposing "novel conditions" for the granting of bail. Her judgments are well written and well researched and her knowledge of our civil law will be a huge benefit and will contribute towards the development of local jurisprudence. For me though, the real test will come during the many challenges that I anticipate will be brought by all political parties during the election period. I have no doubt whatsoever that the judiciary in Seychelles is about to embark on a historic journey that will shake it up and shape it into the institution that is envisaged by the Constitution of our sovereign democratic republic. I congratulate her.
Speaking of shaking and shaping, the contested Public Order Act (POA) is dead and buried and has been replaced by a new bill, the Public Gathering Bill. You were instrumental in the battle to repeal of the POA. But what does this victory actually mean for the people?
Before we go into what this victory means, I need to point out something very important. James Michel was elected President on 28 May 2011. And shortly after that, he took the Presidential oath where he swore to faithfully and diligently perform his duties and discharge his functions as the President of Seychelles. He took an oath that he would be faithful to the Republic and that he would uphold the Constitution of Seychelles. He also swore an oath of allegiance that he would be faithful and bear true allegiance to the Constitution of Seychelles. And that he would preserve, protect and uphold the Constitution of Seychelles. This was his oath. The same oath was taken by the Speaker of the National Assembly. Having assented to this unconstitutional law, he violated the oath in which he undertook to uphold the Constitution of Seychelles and to bear true allegiance to the Constitution of Seychelles.
And how did he break his oath?
Under Article 87, the Constitution says that if a law is being passed and the President is of the opinion that a bill presented for assent infringes or may infringe the Constitution, the President shall not assent to the bill and as soon as practically possible within 14 days, he will advise the Speaker and refer the bill to the Constitutional Court for a decision in this respect. So, for having assented to that very unconstitutional law, he violated Article 87 of the Constitution, he violated his presidential oath because he swore to uphold the Constitution. And as a consequence of this major violation, he should resign. That's number one. Number two - and this tells you why this is so bad - under article 81 of the Constitution which deals with the alteration of the Constitution, it says that the National Assembly can amend the Constitution but it shall not proceed with a bill to alter Chapter 1, Chapter 3 and article 81. Chapter 3 deals with the fundamental rights section and unless you hold a referendum, you cannot change those rights. So by bringing in the POA through which they have violated several of those fundamental rights, I argue that by so doing, they tried to amend Chapter 3 through the back door by not going through a referendum. In that way, the entire National Assembly has violated the Constitution in a major way. This is major stuff and this is why I say that they have all disqualified themselves and that they should all resign, the President first.
You asked for the whole POA to be struck down but the court didn't agree to that. Now, we have a new bill, the Public Gathering Bill that replaces the POA. Are you happy with this new bill?
I haven't seen the bill yet so I cannot comment. Basically, what the Constitutional Court did was to repeal all the unconstitutional sections of the POA and this means that all the sections that have been declared void have no legal effect, they have been declared invalid. As far as I am concerned, public gatherings are something that should be dealt with by the penal code. We don't need a specific law. The POA 2013 when it was voted repealed the colonial POA of 1959. And I must say that it is surprising that nobody, me included, ever challenged the constitutionality of that law. It infringed on many rights and yet while we challenged with ferocity the POA 2013, we did nothing about the colonial one.
Why is that?
There should have been a review of our laws and all laws inconsistent with our Constitution would have been declared null and void under Article 5 and I guess that this was what we had all been waiting to happen because the POA 1959 would have fallen in this category and it would or should have been repealed. I guess we were all waiting for that but little did we realise that something worse was coming. People need to understand the extent of the wrongdoing that was done by the introduction of the POA 2013. What they actually tried to do is to criminalise the exercise of our rights. It became a criminal offence to exercise the rights that the Constitution gave you.
And yet for something so grave, it baffles me that the general public seems so unmoved by the entire POA debacle while intellectuals battled it out in court. What rights are we talking about and how come the public in general hasn't felt affected by this?
Article 23 is your right to freely assemble so you can join with others, you can assemble, you can meet for political reasons, to propagate an idea. But the POA told you that, prior to exercising your right to freely assemble, you needed to get a permission from the police because the law prohibited the gathering of ten or more people! So sitting on the roadside near the taxi place, under the POA would not be allowed if the authorities did not want to allow it. The only kinds of public gathering that didn't require permission were funerals or weddings. The law created an offence just by having more than ten people gathering in public. And if the authorities chose to apply the law you could be imprisoned for not more than two years. And it gets worse. What really threw me about this law was that you needed permission to have a meeting even in your house, in your private property. Further, Section 19 (6) violates Article 20 - the right to privacy as it allows the police the right to enter your premises at anytime within 30 days if necessary by force and to search the premises and every person found therein and to seize anything found in the premises or place or on any person in violation of the right to property guaranteed by Article 26.
Did this apply to political meetings specifically or to any kind of meeting?
Any meeting. Even sporting events or a gathering of people playing music or making speeches - anything!
But why do you think government felt the need to pass a law that would give them so much control over people?
Because the government is all about control and they need to control the masses because they are afraid of the masses. This law was passed in preparation for the forthcoming elections and was geared to control political activities. So they had to have a piece of legislation in place to control the masses when the time comes just in case they need it. So that we would not have the right to hold political meetings, etc. And this thing gets worse - there's a section - 24 (2) that tells you that the President, by an order published in the gazette, could order all residents, say of Bel Ombre, not to leave their homes on polling day, or during polling hours so as only to allow certain persons to be exempted from the prohibition of movement- and to go vote! That's how broad their powers were.
So it was there to be used when and if needed?
Yes that's right. And the President could do that just by public proclamation in the gazette.
In its judgment, did court use harsh language to decry the violation of the Constitution by the National Assembly and the President?
Yes they had harsh words and rightly so because at the end of the day, we're talking about fundamental rights that the Constitution gives us. Can you imagine: even a demonstration by one person would’ve been rendered illegal!
I thought you said it was illegal if it was ten or more people?
If they assemble, then it is ten or more and you need to get permission from the police. But the right to demonstrate was also violated. If one person wants to demonstrate with a placard in the street, he or she needs to get permission. This act was brought about as a result of the demonstration by Ralph Volcere. So you bring about a whole new law to penalise the entire nation because five men sat peacefully at the Post Office with a placard around their necks?
Even the US got involved in this debate when Ambassador Robert Jackson of the Bureau of African Affairs of the US Department of State came to Seychelles. Do you think that the fact that international opinion had condemned the law helped with the judgment?
The judges are very "à jour" with what's happening. I'm not saying they were influenced, I'm merely saying they are aware of public opinion and international opinion. I obviously didn't discuss it with the judges but I think I can say they are aware of what people are saying.
And were you surprised by the judgment or were you expecting it?
I was expecting it. I was not surprised.
So your faith in the judiciary has been restored?
Yes, to a large extent. You see, the Constitution is 22 years old and despite the powers given to the judges under Article 5 which is to strike down any law that is inconsistent with the Constitution, for 22 years the judges have had this huge hammer and they had never used it.
But to be fair, for them to use the hammer, they need people to bring the case to them, surely?
Of course, but the problem is that there is no money in Constitutional cases. Most of those cases, I take pro bono and they are cases that you do out of conviction.
Your colleague Anthony Derjacques told TODAY a few weeks ago that the Electoral Commission has asked the Commissioner of Police to investigate the presence of foreign consultants for Parti Lepep in the country. Do you think this will come to anything?
Yes, I read about this in your newspaper. But while it is true that the court ruled in the POA judgment that the Commissioner of Police is not subject to the control of the Minister, at the end of the day it doesn't really matter what the court says, it's how it's applied. And on the ground, the Commissioner of Police will always be controlled by the Minister in charge of Internal Affairs. That is just a fact.
Because if he doesn't want to be controlled, he will be replaced?
Of course! It’s not a Constitutional post, it's a political appointment. But to answer your question, no it will not come to anything because the President cannot be investigated, he cannot be sued, he cannot be prosecuted because he has complete immunity under Article 59. This, even if he is found to have contravened a law. There is nothing anyone can do about it.
You launched your party a few months ago and then we haven't heard much from you on the political front. How are things?
I have a strategy. Many of my supporters cannot come forward with their support now because they fear victimisation. This is why I will only introduce them once the elections are announced and then if they are victimised, there will be link between their victimisation and the fact that they support me and then I will sue those who are victimising people.
Source:Today in Seychelles
