‘The human world is suffering from our misguided actions’ |21 June 2013

The symposium, which also commemorated 20 years of the Constitution of the Third Republic of Seychelles, coincided with the official opening of the new court complex at Ile du Port.
__________

Mr Chairman, Honourable Judges who are honouring us with their presence today, Ministers, Members of the Diplomatic Corps,  Members of the National Assembly, my learned friends, ladies and gentlemen;
Today I have been asked to speak on the role of the judiciary in constitutional governance from 1993 to 2013 and to make a valuation of the performance of the judiciary and a prognosis of the future.  No doubt we cannot evaluate the progress of the last 20 years before taking into account what was the situation before. 

Indeed Seychelles within the short period of its existence as an independent nation has known 3 different constitutions. But before the introductions of the 3 constitutions Seychelles was ruled as a British Colony. I believe it is pertinent in analysing the history of justice in Seychelles to know what the situation was like in colonial times. How was justice administered in those carefree days of the early 60s - It is of course during this period that after being called to the bar of the honourable society of the Middle Temple in London I returned to Seychelles to practice as a barrister and attorney-at-law before the magistrates and supreme court of Seychelles.  How was justice administered under the coconut palms in those carefree days of the early 60s?

Mr Chairman, distinguished guests, in 1983 the British publisher Methuen of London published the first edition of my book entitled “Paradise Raped”. Perhaps today I should borrow the lines I wrote concerning certain experiences I went through at that time.  I beg to quote from the book:

“The welcome home party was a typically Seychelles affair.  It went on and on. At one point it seemed that the whole island had turned up. Day lurched into night and blearily back into day and it was a decidedly weary young lawyer who presented himself before the Chief Justice Sir Nicholas Patrick France Bonnetard, QC, to take his place at the Seychelles Bar. With my London wig and gown and my certificate I was well set up to become a respected member of the community.

If, as my father suggested, I could forget about politics, then my secure and comfortable existence was guaranteed because legal practice was lucrative. There was no separate profession of barrister and solicitor and only a handful of us to represent an assortment of clients in their encounters with the law. Nor were there any real estate agents, and we attorneys tended to fill the gap, not altogether ethically but often quite profitably. 

When acting as an estate agent in property deals, a lawyer took on the guise of ‘legal adviser’ and usually received 5 per cent of an agreed price and 50 per cent of any additional amount which he managed to obtain.  Even before the airport and tourism sent land values soaring, and town planning  cast its shadow over the scene, there was an active market in real estate offered for sale by members of the Seychellois landowning families who wished to emigrate, often to Australia.

One such deal concerned Cousine, a beautiful little island, which, with its neighbour Cousin, later a bird sanctuary, lies close to Praslin, about twenty miles from Victoria.

A young Italian man had been living an idyllic existence there with a Seychellois woman, but the idyll has been shattered by the return of the lady’s husband, a merchant seaman. The husband demanded moral damages from him for seducing his wife and the Italian settled out of court, handing over this boat, which was worth some £5,000. He returned broken-hearted to Rome while the happy husband sold the boat and went off to Australia with this faithless wife. I thought that I had seen the last of the Italian, but six months later he cabled me saying that he wanted to buy Cousine.
The owner was willing to sell for 100,000 rupees and agreed on the usual terms with me.  I cabled back saying that the Italian could have the island for 135,000 rupees and the young man accepted.
Since I was heading for London I arranged to stop off in Rome to hand over the title deeds.

It was a changed man who met me at Leonardo da Vinci airport. Dressed in typical dolce vita style, with Gucci boots and Valentino tie, he drove me into the city in his smart Maserati, and on the way he explained that he had gone to Seychelles originally to nurse a broken heart after quarrelling with and parting from his wife. Since returning to Rome he had fallen madly in love with an Italian blonde and wanted to marry her and take her back to Cousine as soon as he could arrange his divorce with the Vatican.

Money was no problem. His father was a wealthy stamp dealer and when I visited his offices I was shown a stamp worth £15,000. It made me think what a crazy world we live in. There was a scrap of printed paper valued at nearly twice the price which the young man had paid for a hundred acres of unique, unspoilt, natural beauty.

But the price went up later on. The Italian sold the island £50,000 to a group of German industrialists, who just before the coup refused £400,000 for it.

Court work was monotonous in one way – we always appeared before the same judge or magistrates – but stimulating in others, because of the variety of cases and the large crowd of interested or idle onlookers who packed the court each day and later used what they had heard and frequently misunderstood to fuel the fires of gossip throughout the islands. With the temperature in the eighties and humidity to match, we sweltered in our black gowns and white wigs to uphold the dignity of justice.

Most of the cases were larceny, petty and grand. One morning a washerwoman turned up asking me to represent her husband, who had been charged with stealing the safe of a Chinese merchant. The safe had contained 30,000 rupees.

‘I’ll pay you anything,’ she said, ‘if you can get him out of this mess.’ To prove her point she plunged her hand down the front of her dress and drew from an enormous bosom a wad of notes that would have choked a horse. I counted out 5,000 rupees.  There was no doubt where the money had come from. The husband was unemployed and she earned a pittance. However, I took the case, pocketed the fee and tried by best. I lost. My client got three years, which was not bad since the money was never recovered.

In another criminal case a certain Mr Joseph, who owned cinnamon bushes capable of producing about a ton of bark annually, was found in possession of twenty-five tons of it, packed in gunny bags and covered with coconut leaves. He was consequently charged with stealing or receiving the commodity, which had rocketed in value because the Vietnam War had stopped that source of supply and cinnamon is an essential ingredient of both Coca and Pepsi Cola.

Two days earlier a man had been sentenced to six months imprisonment for a similar offence, and Mr Joseph was a very worried man.
‘Sir,’ he said, handing me a brand new Barclays Bank savings book, ‘I will pay whatever fees you ask.’

I looked at the book. Mr Joseph had opened the account two days earlier with a deposit of Rs50,000, somewhat out of proportion to his monthly wage of Rs 800 as a carpenter.
I said that my fee would be Rs7,000. ‘Mr Mancham,’ he replied, ‘I’ll pay you Rs15,000 but please get me out of this mess.’

As sometimes happened, the police evidence was muddled and contradictory, one witness saying that Mr Joseph had denied knowledge of the cinnamon and the other that he had claimed it as his own property.  I managed to convince the magistrate that my client had no case to answer, and he not only agreed but ordered that the cinnamon be returned to him.
That night Mr Joseph arrived at my house in a lorry. ‘Sir,’ he said, I’ve brought you half of the bark.  I feel you deserve it.’

As you may note there was certainly a sense of laissez-faire and provincialism at that time but there was certainly little malice in the atmosphere, certainly little sense of conspiracy around and no political interference.
 
Certainly, when we became an independent nation on June 29, 1976 we expected our future to be guided by a constitution characterised by the concept of separation of powers – the executive under the leadership of a President, the legislative under the leadership of a Speaker and the judiciary under the leadership of a Chief Justice. 

But less than a year later the Nation faced the unconstitutional coup d’état of June 5, 1977. First we saw the establishment of a dictatorship and the imposition of a One-Party State structure in the country. Under this structure the first to suffer was the rule of law.  We saw a situation of arrest by Presidential decree, unlawful detention, compulsory acquisition of properties, military playing role of the police, creation of ‘gard baton’ and the unlawful dismissal of high ranking civil servants. 

It is interesting to note that while the death penalty was on the statue book of the colonial period until 1966 there were in fact practically very little executions during the many years of colonialism.  The last execution was in 1948.

In contrast while there was no death penalty in the constitution of the 2nd Republic, an alarming number of people were extrajudicially targeted and executed while some others were made to disappear mostly for political reasons.

In fact the whole notion of separation of powers was sent to hell at the time of the coup with the arrest, locking up and forced deportation of the then Chief Justice the Hon. O’Brien Quinn.  As some journalists put it, “The day of darkness had begun” and you only survived as a judge and got promotion within the system if you were agreeable to become subservient to the whims and fancy of the dictatorship at State House.  Not surprisingly thousands of our people fled away from our paradise to seek a life in dignity in exile in foreign lands as far away as the cold land of Canada.
 
Mr Chairman, to forget and move forward from this ugly chapter in our history is not an easy task and in the circumstances of our case required an adoption and promotion of the philosophy of national reconciliation which was regarded as the first step towards the promotion of a high level of national unity. In fact this is what the constitution of the 3rd Republic was intended to bring about but in the beginning of this constitution as leopards do not change their skin overnight, it was a case, to quote, Judge Sauzier of “Plus ça va, plus c’est la même chose”.

Indeed it is only after the election of President James Alix Michel as President in his own right, that we saw a drive towards transparency and a restoration of the concept of the separation of powers.

Unfortunately the National Assembly as presently constituted is not entirely a healthy and satisfactory one because those who claim to represent a substantial portion of the opposition have chosen not to participate and contribute to national debate on important and vital legislative issues.  I do hope that they find the strength of character to return back in the national interest.

So far as the judiciary is concerned it is my view that we have never had it so good and that through the initiative and guidance of the present Chief Justice, Hon. Justice Fredrick Egonda-Ntende with the obvious encouragement and support of President James Alix Michel, many changes have taken place and are taking place in order to meet the need  of a society which is crying for more transparency, more accountability and more fair play and one which today has the need for more sophisticated legal and judicial requirements.
 
When I practiced as a barrister and an attorney-at-law in early 60s I was a jack of all trade and a master of none. Today we are living in the age of specialisation and we have a Ma?tre Nichol Gabriel specialising in criminal law, a Ma?tre Gerard Maurel specialising in real estate and conveyancing and gentlemen like Philippe Boullé and Shelton Jolicoeur making trusts, the registration of offshore companies and offshore banking their specialised areas.

As we move along the road that justice must not only be done but must also be seen to be done and that he who seeks justice must come with clean hands, at a time of great hopes for a better economic future, it is vitally important that we have in place a judiciary made up of respected judges who are ready to give judgment without fear or favour.  In this context I would like to share with you all certain views about judges which I recently came across in an article I read in the Sydney Morning Herald of Australia this year.

In that article written by the legal affairs correspondent of the paper, a former President of the New North South Wales Court of Appeal states that judges inevitably and necessarily bring personal prejudices to their decision and that those ‘who claim to be above such behaviour are probably the ones most likely to do so’.

According to the article, contrary to their preferred image as custodian of a fixed set of laws, female and male judges ruled in startling different directions on some questions and hungry judges were more likely to deny parole request than those who had just eaten.

In a speech on the laws human side, delivered at the University of New South Wales, Keith Mason stated: “Every judge is the product of his or her unique genetic make-up, upbringing, schooling, religious exposure, early professional training and often evolving family and other circumstances.

According to the article division of opinions and shifts over the generations were reflective of honest disagreements over the law. In fact these factors are seen as natural and inevitable and as someone very well puts it: “They are not badges of ignorance or judicial misconduct - they are the badges of humanity.”

The differences between judges were manifest in pattern of sentencing, damages awards, level of suspicion of government and notions of personal responsibility among other judicial calls.

In fact a survey by Stanford Law Review has found that applications by asylum seekers in the United States found that female judges were 44% more likely to grant asylum than men and that the longer a judge had worked for the government, the lower the grant rate.  There is also that study which found out that judges granted 65% of parole request immediately after a food break, their approval rate dwindles to zero before the next meal.

Well, I do not know how much of all this applies to our judiciary set-up in Seychelles today but it is certainly interesting to take note of these observations.
And now what’s about the future?

It is clear that decisions taken by politicians today could have a major influence on the world tomorrow. Yet, our offspring and the generations yet to be born cannot stand up for their rights.  It is therefore our duty and responsibility to ensure the survival of both present and future generations.  It is my conviction that we can only create a world that is more equitable, sustainable and peaceful over a long period of time if our solutions address the root causes of our current crisis.  Otherwise, as we can witness in the global system today we risk dumping the cost of geographically limited or temporary solution on the shoulders of others yet to be born.

Tomorrow after attending the National Day parade I will be flying to Bonn, Germany to participate in the 7th Annual General Assembly of the World Future Council which has within its structure promoted a future justice commission. Such an organisation has become invaluable and necessary because we must analyse and expose long-term effects of our decision today by connecting current problem solving with a long-term perspective. To achieve this we must work from an integrated perspective, highlighting the connection between human rights and security, ecological integrity, social equity and peaceful relations.

Why do we need Future Justice?
We need Future Justice because we need to change our relationships – with ourselves, with each other and with our Earth. The world is warming dangerously. A quarter of our mammals face a high risk of extinction in the near future. Forest destruction continues at the rate of 13 million hectares a year, an area equivalent to one half of the UK. Over 75% of the world’s fish stocks are either fully or over exploited, as large industrial vessels bottom trawling in deeper water cause  severe long-term damage. We know the natural world is suffering from our misguided actions.

We need Future Justice because we need to overcome the obscene inequity between people. Over one billion people live on less than US $1 a day. 10 million die every year of hunger and hunger-related diseases. Over one billion still lack access to safe drinking water. US $89 billion was the estimated need of low income countries in 2008 to meet the Millennium Development Goals that would help end this unacceptable state of affairs – while world military expenditure was US $1,339 billion in 2007.  The gap between rich and poor widens further, including within rich countries.   We know the human world is suffering from our misguided actions.