IN THE SEYCHELLES COURT OF APPEAL-(Coram: MacGregor, PA, Fernando and Twomey, JJA)


22-December-2011

The President of the Court of Appeal, Francis MacGregor, is in agreement with both judgments.

On Monday this week, we carried the judgement made by Justice Fernando. Today, we publish the judgement of Justice Twomey).

 

Popular Democratic Movement                                                  Appellant

(herein represented by its Leader, David Pierre)

V

Electoral Commission                                                                1st Respondent

(herein represented by its Chairperson Hendrick Gappy)

And

The Attorney General                                                                 2nd Respondent

 

                                                                       

 

SCA 16 of 2011

B. Hoareau, Attorney-at-law for the Appellant

F. Ally, Attorney-at-law for the 1st Respondent

R. Govinden Hon. Attorney General for the 2nd Respondent

 

JUDGMENT

Twomey, JA

 

JUDGMENT

Twomey, JA

The Facts

1.     In July 2011 a member of the Seychelles National Party, the main opposition party, voted with members of the ruling Parti Lepep to dissolve the National Assembly. General elections were held on the 29th September to 1st of October 2011. The Popular Democratic Movement (PDM) is a political party which registered under the Political Parties (Registration and Regulations) Act of Seychelles just before the said elections. As the other existing opposition parties decided to boycott these elections, the PDM was therefore the only party contesting the elections against the incumbent, the Parti Lepep.

 

2.     The PDM fielded candidates in each of the 25 electoral areas for the National Assembly Elections.

 

3.     The 1st Respondent is a statutory body created by virtue of the Constitution charged with conducting and supervising elections and referenda in Seychelles.

 

4.      The 2nd Respondent is made a Respondent in accordance with Rule 3 of the Constitutional Court (Application, Contravention, Enforcement of Interpretation of the Constitution) Rules 1994.

 

5.     The elections were duly conducted and supervised by the 1st Respondent from the 29th September to the 1st of October 2011, after which elections the 1st Respondent through its Chairperson announced the results in each of the 25 electoral areas on 2nd October 2011.

 

6.      The Appellant failed to win any seats for directly elected members to the National Assembly. Further the 1st Respondent declared that the Petitioner having won only 7.4% of the total votes cast at the elections was not entitled to any proportionately elected members in the National Assembly. It is this declaration that culminated in the present appeal by the Appellant.

 

7.     The full results, insofar as they affected the Appellant  were as follows:

 

                              Total votes cast                  51,592

                      Total valid votes                   35,145

                            Votes cast for PDM                   3,828

As an aside it must be noted that this was the first time so many spoilt votes were recorded in any elections in Seychelles, resulting largely from the boycott of the elections by the other opposition parties.

The Law

8.     It is important at this juncture to look at the original article of the Constitution in relation to the computation of proportional representative (PR) seats to fully understand the Appellant’s case. The Third Constitution of the Republic of Seychelles was promulgated in 1993. Article 78 reads as follows:

“The National Assembly shall consist of –

a)     such number of members directly elected  in accordance with –

                                          i.    This Constitution; and

                                         ii.    Subject to this Constitution, an Act,

as is equal to the number of electoral areas;

b) such number of members elected on the basis of the scheme of proportional representation specified in Schedule 4 as is equal to one-half of the number of directly elected members or, where one-half of the number of directly elected members results in a whole number and a fraction, as is equal to the whole number immediately following the result.

9.     No Act in relation to the computation of the number of PR members was ever passed but the 1993 Constitution in its Schedule 4 provided for the calculation of such seats. Section 3 (1) of the schedule provides that:

“The following formula shall apply for the purpose of determining the number of proportionately elected members a political party may nominate –

A = B x C

                     D

Where:

A = number of proportionately elected members a political party may nominate;

B = relevant number;

C = total number of votes cast or deemed to be cast in favour  of the candidates nominated by the political party; and

D = total number of valid votes cast or deemed to be cast at the election.

Relevant number is defined in section 1 as “…the number of proportionately elected members referred to in article 78,”(then 11 as there were 22 electoral areas).

10. One National Assembly election took place where this system was    

used – the July 1993 elections and under the said formula 11 PR seats were indeed returned; Parti Lepep (then SPPF) received 6 , the Democratic Party, 4 and the United Opposition 1.

 

11. Subsequently, an amendment to the PR seats was proposed. It

is evidently clear and not disputed that the 1996 Amendment to the Constitution, sought to reduce the number of proportionately elected seats. Its new Article 78 (b) states:

“The National Assembly shall consist of -…

(b) not more than 10 members elected on the basis of the  

     scheme of representation specified in Schedule 4.”

 

12. The amended section 2 of the Schedule 4 now reads as follows:

“A political party which has nominated one or more candidates in a general election and has polled in respect of the candidates in aggregate 10% or more of the votes cast at the election may nominate a proportionately elected member for each 10% of the votes polled.” 

It is also pertinent to note that after this amendment the number of electoral areas was increased from 22 to 25.

The Constitutional Challenge

13. The declaration of the Electoral Commission that the Appellant had

only polled 7.4% of the total  votes resulted in the Appellant failing to reach the requisite quota for a proportional representative seat under Article 78 (b) and section 2 of Schedule 4.

14. In the Constitutional Court the Appellant argued that his rights had        

been contravened under the said Article; that the said contravention was occasioned by the erroneous use by 1st Respondent of the number of “votes cast” as opposed to the number of  “valid votes cast” in the computation for the number for a PR seats. In the Appellant’s estimation if 10% of the total “valid votes” cast had been used instead, it would have resulted in the PDM obtaining 10.89% and hence they would have been entitled to nominate one PR elected member to the National Assembly. It is therefore the contention of the Appellant that it was the usage of the literal interpretation of the words “votes cast” by the 1st Respondent in section 2 of schedule 4 under Article 79 (b) that resulted in his rights being contravened.

 

15. The Appellant further argued that the Constitution used the

terminology “votes cast” in several articles, namely Articles 91 (1), and sections 2(2) and 8(1) of Schedule 3 relating to the election of the President. He also contended that a parallel had to be drawn with the counting procedure laid out in the Elections Act 1995 for the election of directly elected members of the National Assembly which clearly eliminated invalid votes in the procedure for election.

 

16. In response the Respondents submitted that the words “votes cast”  

included all the votes both valid and invalid put into a ballot box. He contended that that was indeed the intention of the legislature in varying the language from “valid votes” to “votes cast” in the amendment. The 1st Respondent further contended that that was indeed the manner in which all computations of proportionately elected members had been done in previous elections of the Third Republic of Seychelles.

17. The Constitutional Court by majority judgments delivered by the  

Learned Chief Justice Egonda-Ntende and Learned Justice Gaswaga on 25th October 2011 used the plain and ordinary meaning of the words “votes cast” in the context of Schedule 4 concluding that had the legislature intended that the threshold be 10% of the valid votes it would have said so exactly. Justice Burhan in a dissenting judgment expressed the opposite view, namely that a change in language is not always indicative of a change of construction as the alteration in the language of a statute by a later statute could very well be for surplussage.  In that context he surmised that the use of the word “valid” in the amending Act of 1996 would inevitably have been surplussage and it was for this reason that the word “valid” was omitted.

 

    18. The result of the above judgment resulted in the dismissal of the                  

petition and the Appellant has now appealed to this Court. His seven grounds of appeal mirror his arguments in the Constitutional Court.

Grounds of Appeal

    19. The Appellant’s contention and grounds of Appeal may be   

          summarised as follows:

·         That the learned judges who delivered the majority judgment erred in law in not applying the definition of “votes cast” in the Election Act to the term used in paragraph 2 of Schedule 4 to the Constitution.

·         That the said judges erred in law in referring to the 1993 wording of Schedule 4 to the Constitution to construe the present meaning of the words “votes cast.”

·         That the said judges failed to appreciate the object of the amending Act, the deliberations of the National Assembly of the 9th of July 1996 and the entirety of the new formula regarding the entitlement of political parties to nominate proportionately elected members to the National Assembly.

·         That the learned judges failed to attach sufficient weight to the fact that the Amendment to the Constitution took place whilst the Election Act 1995 was in force and hence the word “valid” in terms of the said Act was mere surplussage.

·         That the learned judges had erred on the facts by accepting the precedent of computation used by the Electoral Commission in past elections.

 

   20. In considering the contentions of the Appellant it seems to me that the   

only real issue in the present case is the interpretation of the words “votes cast” in paragraph 2 of Schedule 4 of the Constitution. In trying to find a definition various methods have been used by the parties and the Constitutional Court to arrive at what each thought must have been the intention of the legislator. Hence different rules of interpretation have been followed. Before I embark on the same journey I have chosen to resort to some mathematical calculations for PR seats under both the 1993 and the post 1996 formulae. I have done so in order to satisfy myself what the purpose of the amendment was and to eliminate any perverse and unintended alternative that could not have been intended.

 

  21. Under the 1993 formula of A = B x C but using the election results of

                                                       D 

        2011 and the present number of electoral seats (25), the PDM would    

        have got 2 seats:

 

       13 (half of the 25 seats rounded up to the next figure) x  3828  = 1.414                                                                                 35,145

This would have resulted in the entitlement of the PDM to nominate 2 proportionally elected members under the 1993 provisions of paragraph 3(2) and 3 (3) (ii) of Schedule 4 of the original Constitution.

 

 22. Under the 1996 amendment and the present day formula the two

       alternatives are the following:

 

·         According to the argument advanced by the 1st Respondent the formula should be 3,828 of 51,592  = 7.4% (51,592 being all votes cast    

including spoilt votes). Hence 0 seat.

·         According to the Appellant and the 2nd Respondent the formula should be 3528 of 35,145% = 10.89% (35,145 being only valid votes cast). Hence 1 seat.

 23. The above computations clearly illustrate that under the 1996  

  provisions either of the above computation delivers the aim of the    

  amendment, that  is to reduce the number of  PR seats, albeit that the

  first alternative delivers more drastic results.    

 

Travaux Préparatoires

 

24. To establish the correct interpretation of the provisions I therefore have

 to be guided both by the intentions of the legislator as evidenced by the

 deliberations of the National Assembly as well as rules of constitutional  

 interpretation.

 

25. In this respect I have perused the proceedings of the National Assembly    

      of the 9th July 1996. I note that essentially the amendment sought to

      do 2 things:

·         to reduce the number of PR seats from 11 to  a maximum of 10.

·         to raise the percentage required to obtain such a seat from 8% to 10% of party votes.

 

This is certainly borne out by the deliberations of the then SPPF members in the National Assembly, with a certain delicatesse by some members but with a great deal of crudeness and blatancy by others: viz P.28 National Assembly proceedings of 9th July 1996, verbatim extracts:

 

“Minister Belmont “Bill pe propose ki sa nonm i vin 10, aktyelman i 11... sa lanmanmand i pou redwir par enn an term absoli , la kantite manm proposyonnelman elekte.

(my translation “This Bill proposes that the number (of PR seats) becomes 10, which presently is  11, reduced in absolute terms by 1 in relation to those members who are proportionately elected”).

 

Honourable Herminie “ I neseser Mse Speaker pou met an plas 10% pou lasemp rezon ki nou nepli kapab toler en sityasyon kot ou annan nou en minorite absoli ki pe fer en kantite tapaz lo non lepep Seselwa.”

(my translation “It is necessary Mr. Speaker to impose 10% for the simple reason that we cannot tolerate a situation where an absolute minority makes a great deal of noise in the name of the people of Seychelles.”)

 

26. This amendment was strongly resisted by the opposition who saw a   

      further dilution of its mandate:

 

Honourable Daniel Belle (for Democratic Party)... “I vedir ki i infringe the rights of the electorate sa i enportan akoz si yer avek 8% i ti nobou ganny li en seat, ozordi elektora ki dan en parti politik, ki fodre i ganny li 10% pou li ganny en seat. Donk lo pwen reprezantasyon, sa i en keksoz ki fodre pa nou oubliye. E dan en sistenm de demokrasi reprezantatif nou bezwen dan en serten fason, regard sa pou vwar si anmemtan nou pa pe infringe rights sa bann dimoun.”

(my translation “it means that it infringes the rights of the electorate, this is important since if yesterday one could with 8% gain one seat, today the electorate of a political party will need 10% to get one seat. Hence on a point of representation that is something that must be borne in mind. And in a system of representative democracy we have in some way to ensure that the rights of these people are not infringed.”

 

Honourable Ramkalawan for United Opposition (P. 24-27 of the same proceedings)

“Kalkile si ki si dan lot eleksyon lopozisyon i reprezant li 49% me Selman i pa ganny li en first past the post, atraver bann mannev ki zot fer...pou annan li zis 4 dimoun dan sa Lasamble. Eski sa i en sityasyon ki aksetab?

(my translation “ Just think that if in another election the opposition  proportionally receives 49% of the votes but no seat under the first past the post system, through your manoeuvres... it would only have 4 members in the Assembly. Is this an acceptable situation?).

 

   27. What is also clear from the proceedings is that members of the SPPF

seemed unclear about the aims of the amendment. Some seemed to express the view that the amendment would result in 10 PR seats being returned, others that it would see a maximum of 10%. Some opined that the amendment would curb the representation of “rogue minorities” in the Assembly (viz the “Hizbollah” reference by Honourable de Commarmond at P.31). Minister Belmont indicates that it was purely to reduce and not to remove proportional representation. The focus of Assembly members seemed to be more on the amendment of the Constitution to allow for the appointment of a Vice President, which amendment was debated during the same proceedings.

 

   28.  Hence we now have an Act, which provisions according to the parties,

can be interpreted in two ways: one which would allow proportional representation and one to all but remove it. As the deliberations of the Assembly do not clarify the situation and does not aid in a literal interpretation of the provision I have no alternative but to look at the said provision in the context of the whole Constitution and at rules of interpretation contained in the Constitution but also in terms of constitutional rules of interpretation generally.

 

   30. We have also been invited by learned Counsel for the Appellant to refer

to the provisions of the Elections Act which are in pari materia with the Constitutional provisions but I do not think I need even make the comparison. I do however accept submissions of learned Counsel for the Appellant that some help may be derived from provisions of the Elections Act as for all intents and purposes it addresses the same subject matter, namely elections. As the Act deals directly with the manner of elections, specifically National Assembly Elections, and figures emanating from votes cast for directly elected members of the Assembly have a direct and immediate bearing on the computation of the total PR seats attributable to each party, then it would be illogical to use one method in one (valid votes) and a different one (total votes) in the other.

 

The interpretation of the Constitution

    31. In terms of rules of interpretation this Court is guided by the fact that    

the Constitution should be interpreted to give effect to it.  Paragraph 8 of Schedule 2 of the Constitution states that the provisions of the Constitution should be given their fair and liberal meaning; that the Constitution should be read as a whole and should be treated as speaking from time to time. Similarly, we cannot overlook the provisions of Article 48 which requires that the interpretation shall be done in such a way so as not to be inconsistent with inter alia international obligations and  that judicial notice of international instruments, Constitutions of other democratic States, decisions of the courts of the States or nations in respect of their Constitutions.

 

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