Viral’s challenge moves through Constitutional court

“One error should not compound another”

The Constitutional Court of Seychelles yesterday morning heard all the arguments in a landmark case brought before it by Seychellois businessman Mr. Viral Dhanjee.

Mr Dhanjee is challenging the re-appointment by President James Michel of Court of Appeal Judge Dr Gupt Domah to a second term in oﬂice. Mr. Dhanjee is claiming that the reappointment made by the President in his capacity as Head of State, upon the recommendation by the Constitutional Appointments Authority (CAA) is in contravention of the 1993 Constitution and the Justices ACT 2008.

The Constitutional Court was made up of Supreme Court puisne judges Durai Karunakaran, Gustave Dodin and Bernardin Renaud.

The Constitution provides for members of the judiciary to be appointed upon the recommendation of the CAA which, in making the recommendations where foreign judges are to be reappointed, must establish ‘exceptional circumstances’. These circumstances, it is being argued, should be clearly stated.

In a brief comment before the hearing Mr. Dhanjee told TODAY in Seychelles that the case was not about or aimed at Justice Domah, but about the actions of the CAA and the ‘institution of the Executive‘, and how the two are supposed to perform their functions in relation to the powers under the Constitution.

In his submissions to the Court the lawyer for Mr Dhanjee began by saying that the case involved “a comedy of errors and blunders, beginning with a sitting Justice of Appeal, the CAA and the Executive."

It was noted from the correspondence presented in evidence that Justice Domah has made a direct application to the CAA for a second term of office even before the expiration of his ﬁrst term.

In that application he set out reasons why he believed his request should be favourably considered. In support, he attached his Curriculum Vitae and what he relied on to show ‘exceptional circumstances’ warranting a second term as justice of the Court of Appeal.

The CAA received correspondence from Justice Francis MacGregor, the Appeal Court's President, supporting the application made by Justice Domah, in which he also outlined and supported the reasons he had adduced as ‘exceptional circumstances‘, and adding another comment in support of Justice Domah's reappointment.

The CAA then made a recommendation to the President that Justice Domah’s contract be extended for a further two years. The CAA referred to Article 13l (3) of the Constitution, which covers the appointment of foreign judges where the CAA recommends and the Head of State appoints for a period of ‘only one term of ofﬁce of not more than seven years", Justice Domah's ﬁrst contract had been for a period of ﬁve years and the CAA had sought ‘an extension of a further two years’.

The legal difficulty that arises, the petitioner's counsel argued, was that the constitution did not provide or make any reference to ‘any extension’ of a contract, and therefore the CAA could not use that provision of the Constitution to make the recommendation. Furthermore, the supporting documents provided by the CAA to the Executive sought to explain the ‘exceptional circumstances by the application made by Justice Domah himself and the recommendations made by MacGregor JA.

In this case the argument was that they were using Article 131(4) of the Constitution which provides that ‘the President may, on the recommendation of the CAA, in exceptional circumstances, appoint a person who is not a citizen of Seychelles and who has already completed one term of office as a Justice of Appeal or Judge for a second term of office, whether consecutive or not of not more than seven years‘.

The Executive had responded positively to this recommendation by granting Justice Domah a new contract of ﬁve years.

In responding to the arguments of the lawyers representing all the various respondents, the Constitutional Court said it was not satisﬁed with the arguments on the interpretation of “exceptional circumstances" and said that they were of the opinion that the Constitution did not provide for any ‘extension’ as had been initially sought. They said the CAA had erred in making a recommendation for an extension of the contract, as this was not provided for in the law. This error was compounded by the fact that the CAA had not even made a request to the Executive for any new contract for any judge, including Justice Domah, the court said, noting that the CAA had made a similar ‘error’ in the recent past.

The intervention of the president of the Court of Appeal, the court inferred was ill advised. Under the Constitution the President has the obligation to satisfy himself that ‘exceptional circumstances’ exist where any recommendation for a new judicial contract is being made to him. He can only act upon a recommendation for such a contract being made by the CAA.

The judges pointed out that the CAA had made no such recommendation and therefore, they said the need for exceptional circumstances should never have arisen. All these point to the fact that the Executive may have acted “ultra vires' (outside its powers), in giving a new contract to Justice Domah, without ﬁrst having received a request from the CAA.

The CAA should have also sought legal advice before providing the new contract since it can be argued any application for renewal of a contract can only occur once a vacancy exists and should not be made by a sitting Judge, but should be left to the CAA to determine. The Court indicated that a more appropriate course of action would have been for the Executive to return the recommendation back to the CAA highlighting the fact that the original recommendation was not founded in law.

In his closing argument, the lawyer for Mr Dhanjee asked the Court to make a declaration that the Constitution had been contravened and grant him a remedy and declare that Justice Domah’s appointment was null and void and that he should vacate the ofﬁce.

One of the lawyers for the respondents argued in his ﬁnal submission that even if the Court were to ﬁnd that the CAA and the Executive had both acted “ultra ﬁres", the Constitutional court could do nothing more than declare that an ‘error' had been made as they did not have the power to end the contract of employment.

The Constitutional Court reiterated its role to protect and defend the Constitution and said that it had the full authority to make any orders that it deemed necessary to rectify the situation.

The court will deliver its decision on 20 December 2011 at 9.00 am.

Source: Seychelles Today 11-25-11