Open letter to the Attorney General of Seychelles |24 September 2019

‘Let the petition be heard, do not ask that it be dismissed’

Hon. Attorney General I write this open letter with the sincere hope that the content will be seriously considered and some fundamental changes will ensue.

1                     The powers and mandate of the Attorney General are clearly spelt out in Article 76 (4) (a) to (c) of the Constitution including the power to institute criminal proceedings, to take over such proceedings or to discontinue them.

2                     However under Rule 3(3) of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitutional Court Rules 1994, contained in Subsidiary Legislation, SI 33 of 1994, the Attorney-General “shall be made a respondent” in any petition filed before the Constitutional court unless he is the Petitioner/Applicant before the Court.

3                     As chief law officer, you have a special responsibility to be the guardian of the rule of law that well established legal principle that protects individuals, and society as a whole, from arbitrary measures and safeguards personal liberties. You also have a special role to play in advising government to ensure the rule of law is maintained and that government actions are legally and constitutionally valid.

4                     If a person claims that a provision of the Charter of Fundamental Rights and Freedoms has been or is likely to be contravened in relation to the person by any law, act or omission that person may apply to the Constitutional Court for redress. (Article 46 (1). How then can you deriving your powers under an SI ask the court to throw him/her out on a preliminary objection without hearing his petition? Tantamount to shutting the door in his face.

5                     After years of discussions before both the Constitutional Court and the Court of Appeal, I think it’s fair to say that your roleis now settled, in that you are the amicus curie, that is “a friend to the court” and in that capacity the court in its absolute discretion can ask you to file “an amicus brief” to assist the court in coming to a fair and just determination of the case before it, and that is it.

6                     The above said, over the years your Chambers has persistently and frivolously filed “preliminary objections” in which it has sought orders from the court to dismiss the petition BEFORE it is actually heard irrespective of what the Court of Appeal has said on numerous occasions about the “tail wagging the dog,” blinded to the fact that the Petitioner is seeking a remedy for what he/she claims is a contravention of his/her constitutional right, and to the fact that he/she has a right to be heard. Audi alteram partem (or audiatur et altera pars) is a Latin phrase meaning "listen to the other side", or "let the other side be heard as well" it is the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.

7                     The "Audi alteram partem" is considered to be a principle of fundamental justice or equity or the principle of natural justice in most legal systems. This is a well-known and well-respected legal principle as old as the hills. It is not the duty, and neither, is the Attorney General constitutionally empowered to ask for a ‘dismissal” of a case before it is heard on the merits.

8                     Your power therefore is based on a rule founded on a subsidiary piece of legislation, and it cannot, and should not be used to supersede a constitutional right by asking the court to deny a person his/her constitutional right to be heard in breach of the rule of natural, and fundamental justice when there is an allegation that a fundamental right has been contravened in relation to that person.

9                     In an article written by Judge Vito M. DeStafano in 2009 he says that in recent years he has focused on Pontius Pilate’s role as judge and says that; “there is no doubt in my mind that when Pilate transferred Christ’s case to Herod, he believed as any judge who has transferred a problematic case to another judge does, that the problem was out of his hands. In essence, Pilate took the easiest and most expedient course available to him: shifting the problem to Herod.”

10                  So I say, to the Attorney General let the Petition, be heard do not ask that it be dismissed, on a preliminary objection with the knowledge that the decision will be appealed against (transferring it to other judges). Do not ask our Constitutional court judges to act like Pontius Pilate and to wash their hands off the Petitioner’s case without hearing it, like it did in the Colin and Gina Forte Case, a prayer acceded to by the Court. My plea to our court is not to allow itself to be turned into the Biblical court of Pontius Pilate, but to hear the petition on its merits as it did in the Jean Mellie case despite the 20-year delay.

Alexia G. Amesbury

Disclaimer

The views expressed in this letter do not necessarily represent the views of the Seychelles NATION newspaper.