As for now Seychelles does not have a Public Order Act after
the Constitutional court took a unanimous decision yesterday that 19 sections
of the document are unconstitutional as they violate different Articles of the
Constitution of Seychelles.
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| Public Order Act assented by irresponsible President of the Seychelles |
Summarising the 78-page judgment, acting Chief Justice Durai
Karunakaran said sections 3, 5, 6, 7, 8, 9(2), 9(3), 9(4), 9(6), 11, 13(2)(a),
13(3)(a), 14(1), 22(3), 24, 29(2)(a), 29(2)(b), 29(2)(c)and 29(3) are
unconstitutional.
Judges Gustave Dodin, Bernardin Renaud and Crawford Elliott
Mckee also sat on the bench for the case.
The decision makes all the 19 sections of the Public Order
Act, 2013 void, and representatives of both the petitioners and respondents
have declared the decision as “historic”.
Yesterday’s judgment concerned the constitutionality of
certain provisions of the Public Order Act, 2013 after two cases of similar
nature were brought before the court.
The first petition was brought by the Seychelles National
Party and Others against the Government of Seychelles and another. It
challenged the constitutionality of sections 3(1), 3(2), 6, 8, 11(1), 12, 24
and 29 of the Act, seeking a declaration that those sections are
unconstitutional and hence void.
The first case was entered on March 14, 2014 by the first
petitioner, the Seychelles National Party represented by its president Wavel
Ramkalawan; the second petitioner the Seselwa United Party represented by its
then president Ralph Volcère, and by the third petitioner, Citizens Democracy
Watch represented by Gelage Hoareau.
The first petitioners were represented by Learned Counsel
Anthony Derjacques.
Viral Dhanjee, a citizen of Seychelles, brought the second
petition against President James Michel and the Attorney General. Mr Dhanjee
challenged the constitutionality of the entire Act due to the extent to which
it contravenes the Constitution of Seychelles.
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| Viral Dhanjee and Alexia Amesbury |
According to the judgment, in his pleadings, Mr Dhanjee
specifically challenged the following provisions: sections 3(2), 5(1)(a,b),
5(), 6(1)7, 8(3), 8(4), 8(5), 9, 10, 12, 13(1)(b), 15(1), 15(2), 16(1-5), 17,
18(1) and 3, 19(1)(b), 19(4-6), 20(1), 21, 2, 24, 26, 27, 29 and 33 of the Act.
Mr Dhanjee’s case was entered on March 27, 2014. He averred
that he had, and continues to have political aspirations in terms of Article 24
of the Constitution which gives him the right to participate in government, and
that the Act contravenes and is likely to contravene his rights under the
Articles enumerated in paragraph 9 of his Petition, but more specifically Articles
22 and 23 of the Constitution.
He was represented by Learned Counsel Alexia Amesbury.
Attorney General Rony Govinden aided by Mr Anand represented
the respondents.
Speaking to the local media, Learned Counsel Alexia Amesbury
said the decision is “historic as for the first time in 22 years the
Constitutional Court has used powers given to them under the Constitution to
declare an Act inconsistent with the Constitution and to declare it void”.
She added: “The interesting thing about this particular piece
of legislation is we had the Public Order Act 1959 which was before our
Constitution, so the Public Order Act 2013 was supposed to have brought the
1959 Act in line with the Constitution, but instead it violates the
Constitution even more than the 1959 Act did.
“The two rights that have been most violated are Articles 22
and 23 – the freedom to assembly, and the right to the freedom of expression.
If a country does not have those two rights it cannot call itself a democracy,
because those two rights are fundamental and are cornerstones of a democracy.
Without those two rights we have no democracy. It is surprising that our
country is referred to as a democracy and yet we have the Public Order Act
2013. The Constitution says you cannot amend chapter 3 without a referendum and
this Act sought to amend chapter 3 through the backdoor. That is why this
judgment is historic and I hope the legislature and executive take note of this
judgment and when they bring in the new Act they will implement the observations
that the court has made.”
Learned Counsel Anthony Derjacques had this to say: “It’s a
great day for Constitutional and fundamental human rights in Seychelles. I felt
deeply that Articles 22 and 23 – freedom to assembly, and the right to the
freedom of expression – were being infringed by the Public Order Act and the
judges have acted in a very authoritative and wise manner in striking down
those sections of the Act.
Now we have to relook
at the whole area and I believe this time the executive and the legislature
have to consult with all parties and come up with a modern democratic Act to
replace the Public Order Act.”
For Attorney General Rony Govinden, he said “today is a
historic day and a great day for our democracy. It shows the system is
working. It shows there is a separation
of powers and the court independently considers laws of the executive and
eventually if it feels there are some provisions in them that are not
constitutional it will rule on these
matters and give orders. The courts are there to rule on the constitutionality
of any laws that the government passes”.
Mr Govinden added that “it’s the first time and it won’t be
the last time because the court obviously looks at the development aspects of
laws, how the jurisdiction has changed and interprets and imposes it in our
democracy. It then gives a ruling if it finds it partly unconstitutional”.
So what is the next step?
Attorney Govinden explained that it will take some time to
scrutinise the judgment and see what are its options.
“There are two alternatives: either we appeal the decision
through the Court of Appeal which is the highest court, or we go to the
National Assembly with a revised Public Order Act. But both will take time. In
the meantime, there are other legal provisions in the penal code and other
laws, Police Force Act, which I am sure the law enforcement authorities will be
able to use for crowd management in public places,” said Mr Govinden, who added
the country needs a Public Order Act to manage and relegate public gathering.
He went on to say that in some other jurisdictions laws have
to go to the Constitutional court first before they become law, what is called
à priori vetting. But in our system this is not the case as the law goes into
the statute book first and then to the Constitutional court.
A draft of the Public Order Act was sent to the National
Assembly for consideration on November 28, 2013, approved by the National Assembly
on December 6, 2013 and assented to by the President of Seychelles on December
31, 2013. The Act consists of 39 sections of law. The main operative sections
of the Act seek to grant the Commissioner of Police and the Police Force with
certain powers to control public gatherings, public meetings and public
processions in order to maintain law and order across the Republic of
Seychelles during non-emergency and non-war times.
