7 February 2017

Seychelles: Politician Allowed to Manipulate Courts to Suit His Ends

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Never have I read an Appeal Court judgment trouncing a judge's actions in such stringent terms - the decision took my breath away.

It was delivered by the normally temperate Appeal Court of the Seychelles in their most recent batch of judgments, and concerned a spate of decisions made by a respected senior Supreme Court judge during the run up to that country's 2016 elections.

The judge in question, Durai Karunakaran, acting Chief Justice in 2014 and 2015, was suspended in October last year pending a misconduct inquiry. At the time of the announcement, media speculation linked the inquiry to a series of decisions he delivered shortly before elections the month before. There has not been any official news of the inquiry since then, and the new appeal decision is the first judicial analysis of these controversial judgments.

Appeal Judge Satyabhooshun Domah began the decision with remarks that could not fail to grab a reader's attention. Writing for a unanimous court he said: 'This is a sad case. No judge sits in judgment of another judge with a happy heart. But human law ... applies to the prince and the pauper alike. And as judges we are bound by our oaths to give judgment according to law, without fear or favour, affection or ill will. We are blind-folded to status.'

Intrigued, I read on, and found the court striking a defensive note, stressing that the story about to unfold in the judgment was an exception and did not reflect how the courts were normally run in that country.

It was the story, said the court, of a judge who cast caution to the winds, who saw no difficulty in assuming jurisdiction and hearing two matters that went on to generate a further seven cases, all of which were 'disposed of' in just nine days.

As a result of that judge's decisions, said the Appeal Court, a litigation-minded politician succeeded in manipulating the court system to prevent two parties from contesting the elections as was their constitutional right. 'This would not have happened without the indulgence of court and counsel in this case.'

The story goes back to early 2016 and preparations for general elections in the Seychelles. Nomination date for parties was set for 17 August 2016 and the polls themselves for a month later.

Before the announcement of either date, however, parties and their officials jostled for power with behind-the-scenes coalitions and dissolutions. First to present himself to the electoral office was Martin Aglae. On 10 March 2016, a few minutes past 9am, he arrived and said he wanted to register a political party named Linyon Sanzman (Union for Change).

Though no party had yet registered with that name, Linyon Sanzman was the name used by a group in the presidential election the previous year.

The appeal judges said while it might be asked whether the party had split, this was speculative. What could not be denied is that, up to this point, and for whatever reason, no party was registered with this name. Aglae's application met all the criteria and the registration process for his party then started.

A few hours later Roger Mancienne arrived at the electoral office and demanded to register a party under exactly the same name. His group used that name - 'Linyon Sanzman' - during the presidential election campaign the previous year but had thus far not registered the party for the National Assembly elections.

The Appeal Court made it clear. Mancienne's group had no right to demand the name. It had already been registered to an earlier applicant. 'That is the long and the short of it under the law'.

But at the time the electoral commission wasn't so sure and took legal advice. Finally, a month later, the commission announced the name had to go to the first group to apply whose application complied with all the conditions: Aglae's group.

Soon afterwards Mancienne successfully registered the name Linyon Demokratik Seselwa (Seychellois Democratic Alliance) for his party. And it was Mancienne and this party, with the 'indulgence' of a Supreme Court judge, that then launched the series of controversial cases dealt with in the appeal.

First came a preliminary skirmish handled by another judge in which Mancienne's party tried - improperly according to the Appeal Court's later judgment - to challenge the commission's decision not to award the name to Mancienne. The matter was again referred to the commission and once again, spelling out 11 grounds for its decision, the commission awarded the name to Aglae.

When Mancienne said he was in any event no longer interested in using the contested name that seemed to be the end of the matter.

A fortnight later, however, he was back in court, challenging the decision to give the name to another party, and this is where what the Appeal Court regarded as a series of legal improprieties began.

The case did not follow the normal case allocation route, said the Appeal Court, and the judge involved (Karunakaran) 'assigned himself the case'. There were a number of grounds on which the matter before him should have been refused, 'and the judge should have exercised a degree of professional scepticism to check on the good faith' of the applicant.

Instead, despite the fact that the application 'had no merit' and should have been rejected, he 'readily granted the application' without notice to the other parties involved, and issued a number of orders in favour of the applicant, even wider than had been asked for.

Next day the same party was back in court, this time challenging the electoral commission's decision to register another, completely different, party because its acronym was allegedly so similar to that of his own party that the public would be confused. This case also should have failed on the question of insufficient interest and good faith, said the Appeal Court. 'It was more in the nature of settling a political score with a party which had stolen a march on it ... than anything else.'

Further cases followed, brought by Mancienne's group without notice to the other parties involved, and in which the orders granted were wider than those that had been sought. They resulted in Karunakaran ordering the Electoral Commission to rescind its registration of two parties.

'The wide-ranging and retroactive nature of (Karunakaran's) orders are mind-boggling,' wrote the Appeal Court.

And when the two affected parties discovered what had happened and tried to intervene on the grounds that they had not been heard and that as a result of the judicial order their right to participate in the elections had been effectively lost, they ran into a brick wall: The judge ruled that following his previous ruling they were now 'non entities unknown to our laws and annulled by the order of the court'. He would thus not even hear them.

The two parties even brought an application for the judge to recuse himself on the grounds of bias. He refused, prompting the Appeal Court to comment: 'The bias was flagrant to anyone except the learned judge himself.' The court added: 'The record shows that so bent was the learned judge to give judgment according to his will rather than according to law' that he failed completely to answer the submissions of counsel on key issues.

The result of the judge's intervention was that the two parties, their names struck from the list of registered contenders, were unable to participate in the elections. Now they have won their appeal - 'whatever it is worth' - with costs.

In their final assessment of the sorry story, the Appeal Court wrote: 'We were inclined to hold the view that the learned judge took the case for no other reason than an upsurge in professional zeal. But zeal is one thing and lending one's office ... and ... name as a judge to allow litigants to abuse the process of court is quite another. At that time, neither the office nor the judge is doing judicial work but abusing court process. This is nothing more than abuse of court process by a judge. He allowed himself to use court process for an objective and in a manner not permissible under the rule of law, within the limits of judicial discretion under the law or within the confines of the powers of his office as a judge.'

The official website of the Seychelles judiciary includes a statement that the judiciary 'categorically denies' the referral of Karunakaran was 'politically motivated or an act of retaliation because of decisions linked to the recent elections'. The Chief Justice 'acknowledges sending official complaints' but adds it is 'inappropriate' for any member of the judiciary or other branch of government to comment on any complaint.

There has since been no further announcement about when the inquiry into Karunakaran's alleged misconduct will sit or complete its work.

Ironically, Karunakaran acted as Chief Justice during 2014/15 and during the ceremonial opening of the 2014 Supreme Court year made a well-publicised speech urging the judiciary to be faithful to its role as watchdog of the Constitution. According to the Seychelles News Agency, he said a modern judiciary 'could only earn the respect of the public' if it was 'accountable, independent and transparent'.

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