In the Constitutional Court-Court of Appeal Judge Domah’s extension of term revoked


18-January-2012

Judge Domah’s seven-year appointment ended in November 2011 and his appointment was extended for two years by the President of the Republic, acting upon the recommendation of the Constitutional Appointments Authority (CAA).

This was contested by Viral Dhanjee on the grounds that it was unconstitutional.
The Constitutional Court, composed of Judges Durai Karunakaran (presiding), Bernardin Renaud and Gustave Dodin, revoked the extension of the appointment of Judge Domah in a judgement delivered yesterday.

The Constitution stipulates that a person “who is not a Seychelles citizen may be appointed to the office of Judge or Justice for only one term of not more than seven years.”

The Constitution however also states that the President may, on the recommendation of the CAA, in “exceptional circumstances”, appoint a person who is not a Seychelles citizen and who has already completed one term of office as Justice of Appeal, or Judge, for a second term of, whether consecutive or not, not more than seven years.

The Constitutional Court found that on April 16, 2011, nearly seven months prior to the expiry of his term, Judge Domah applied in writing to the CAA for the renewal of his term of office for a further period and “in the same breath” for a second term of office.

According to the judges, there is indeed a world of difference between “renewal” of one’s contract of employment for a further period and “reappointing” a judge/justice of Appeal for a second term of office.

They state that the difference herein may appear to be formal, but it is quite significant in the legal and constitutional context.

Petitioner Dhanjee contended that on or around September 5, 2011, and before Judge Domah had completed his first  term of office and before any vacancy for the office of Justice of Appeal had arisen, the President appointed him for a second term of office and he was sworn in a second time, even before completion of his first term.

The contention of petitioner Dhanjee, in essence, is that the recommendation of the CAA to the President to either appoint Judge Domah for a second term of office and/or extension of his term for a further period of two years, is contrary to and inconsistent with Article 131 (4) of the Constitution.

It was argued that there were no “exceptional circumstances” that existed to recommend Judge Domah’s appointment for a second term or to extend his contract, as there was no evidence to show that the CAA had not been able to find suitably qualified candidates for it to propose to the President for appointment as Justice of Appeal to replace the one whose term was coming to an end.

The Constitutional Court agreed and ruled that while the CAA may recommend reappointment of a candidate for a second term in “exceptional circumstances”, under no circumstances does it have any constitutional mandate to extend the contract period of any judicial appointee for any further period exceeding or beyond the period stipulated for the first term of office in the original contract of employment.

Mr Dhanjee was represented by lawyers Frank Ally and Alexia Amesbury, while Kieran Shah represented Judge Domah.

Attorney General Ronny Govinden represented the President and Government of Seychelles.
Lawyer Francis Chang Sam represented the three members of the CAA -- chairman Jeremie Bonnelame and Marlene Lionnet nominated by Parti Lepep and Patrick Berlouis, by the Seychelles National Party (SNP).  

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