Domah's re-appointment unconstitutional
CAA cannot extend contracts of expats
By William M Bell
Viral Dhanjee wins another case in the Constitutional Court
The reappointment of Court of Appeal judge Gupt Domah has been declared unconstitutional. This was the finding of the Constitutional Court delivered yesterday in the case brought before it by Seychellois businessman, Mr. Viral Dhanjee, who had challenged the re-appointment of Justice Domah to a second term of office as judge of the Conn of Appeal and highest court in the land.
Mr. Dhanjee., who was represented in the case by Attorney-at-Law Mrs. Alexia Amesbury, sought a declaration from the Constitutional Court that the re-appointment of Justice Domah was unconstitutional and therefore null and void.
The three judges of the Constitutional Court, D. Kanurakaran J.., Bernardin Renaud, J.. and Gustave Dodin J., were unanimous in their decision.
Arguments in the case were heard in November 2011 during which the court said that “one error should not compound another”, referring to the initial mistakes in the application of constitutional procedures undertaken by the Constitutional Appointments Authority (CAA), the body that appoints judges; the premature application by the outgoing Justice Domah for re-appointment as well as the unsolicited intervention by the President of the Court of Appeal in the matter which led to the misjudgment in awarding Justice Domah a new contract of employment on the basis of the recommendation provided.
ln summing up, Karunakaran J. indicated that the Constitutional Court had deliberated long and hard on the wording of the Constitution, with particular reference to the powers conferred on the CAA and the President, as prescribed in the Constitution of Seychelles.
ln this, he said the court had found that a literal interpretation of the wording was the most appropriate means of determining the meaning to be given to the key words of the Constitution used by the CAA in recommending the reappointment of the judge. The Constitutional Court said that “where the ordinary sense of the word is clear, Judges must not invent” other meanings and the Constitutional provisions, they said were “clear and unambiguous".
The court said that the Constitution did not provide for an extension of a judge’s contract as the CAA had sought by its recommendation to the President.
Further, the court said, the action of granting a new contract was ultra vires and was not provided for in the Constitution.
ln making the recommendation all three judges of the Constitutional Court said the CAA should have recourse to other sources familiar with the applicant for a position of Judge, whether he or she is foreign or local, and that this information should be sought by the CAA and nor proffered by any other person, which could result in the integrity and impartiality of the CAA being brought into question.
The Court said it was ill advised of Justice Domah to apply for re-appointment on his own behalf before his initial contract ended. In fact, his application was made at least seven months before it was due to expire.
The judges found that Justice Domah should have been aware of the CAA requirements as well as the provisions of Article I31 (3) and (4), relating to the single term of office for foreign judges as well as the issue of “exceptional circumstances“.
The Court emphasized that the process by which judges are appointed must be beyond reproach, accountable, transparent and in every sense “immaculate” in order to retain the impartiality and independence of the judiciary.
They recognized that Seychelles was a small country, with a small jurisdiction, where in terms of locals, appointments were not simple given family affiliations, friendships, past associations and in some cases political affiliation. This however, should not preclude the CAA from noting public sensitivities on judicial appointments as well as the desire for locals to hold the job, the Court said, before concluding that the Constitution was clear that an “extension of contract" as was made in this case is "alien to the Constitution of Seychelles".
The Constitution Court also found that, contrary to comments raised by the lawyers for the CAA and respondent parties during the hearing, the Court has unfettered jurisdiction in this matter and can grant any relief or remedy it deems appropriate.
ln conclusion the Constitutional Court declared that the CAA's recommendation to the President requesting a two-year extension to Justice Domah's contract was “ultra vires” and therefore void null and void ab initio, that is from his swearing-in on 5 September 2011.
The Court added that the CAA has no Constitutional mandate to make any application whatsoever for ‘an extension of contract’ and in consequence they made an order setting aside the appointment of Justice Domah to a second term of office.
Commenting after the decision was handed down, Mrs. Amesbury said she was pleased with the decision. She said the judges had demonstrated their independence, impartiality and that the CAA would now have to request Justice Domah to vacate his office, she said.
“l see this victory as a win for all Seychellois” said an elated Mr. Dhanjee when he spoke to the press following the decision. He said both cases he had brought before the Constitutional Court were brought in the spirit of defending the rights of all citizens as prescribed in the Constitution of Seychelles.
“Where certain aspects of the Constitution have been violated it is the duty of every citizen to protect and defend those rights, more so, those in high Office, who have taken an oath to protect and defend the Constitution of Seychelles,” he said, adding that this is the only way to guarantee our liberty and democracy.
‘When we follow the Constitution, then we know where we stand," he said.
Meanwhile, the lawyer standing in for the Attorney General who was absent from yesterday‘s proceedings, said he would review the decision with the Attorney General before deciding on whether to appeal to Court of Appeal.
Source: SeychellesToday 1-18-12