Letter to the Editor - Political interference with a constitutional process |24 May 2017

In an unusual display of political interference with a constitutional process, the LDS (Linyon Demokratik Seselwa) has issued a press statement decrying the fairness and impartiality of the conduct of the investigation of Judge Durai Karunakaran by the former CAA (Constitutional Appointments Authority) and a special tribunal set up in accordance with the Constitution.

The CAA called for the Tribunal to be halted and reviewed “with proper rules and guidelines for conduct”. However, what these consist of has not been detailed in the CAA’s call. In fact, there has not been any detailed reason or substantiation given for their request for the halting of the Tribunal.

There can be no doubt that it is a constitutional safeguard to appoint three judges or former judges to the investigative Tribunal. This protects fairness and due process. Furthermore, appointing such persons trained in impartiality and fairness follows the guidelines set down in international best practice.

The Constitution does not require that there is any specific process to be followed by the Tribunal. In the present case, the Tribunal has stuck closely to the wording of international commentary on the procedures for such matters in order to afford the highest level of fairness to Judge Karunakaran.

The newly constituted CAA does not have the constitutional power to halt the proceedings once they have been started. Article 134 of the Constitution provides the exact process for the investigation of a Judge, and this has been followed to the letter. In terms of Article 134(2)(b) of the Constitution, the Tribunal, once set up is obligated to investigate and report to the President (the Constitution uses the word “shall”).

The role of the CAA is simply to assess whether an investigation ought to be undertaken and to appoint the Tribunal. There is no inherent power to alter or impact on the Tribunal once it has been set up. This is to protect the Tribunal from any political interference.

The CAA itself ought to be independent in terms of Article 139(2) of the Constitution and therefore the recent political interference is absolutely in violation of the Constitution.

The LDS press statement states that “there is no evidence that the former CAA considered the complaints for itself before appointing a tribunal” and that Judge Karunakaran was not given an opportunity to address these complaints before the decision to suspend him was taken by former President Michel. This matter has been thoroughly and entirely debunked in a recent Court of Appeal court case which found that the CAA and the President had followed the correct procedures in line with the letter of the law and international best practice for the disciplining of Judges. LDS and the CAA are choosing to ignore this judgment, and are attempting to mislead the public with this press statement.

It begs the question of why the LDS is so adamant to refuse to permit the Tribunal to go ahead with its investigations? Surely, if Judge Karunakaran is not guilty of any wrongdoing he will be vindicated in the outcome of the investigation.

The CAA’s constitutional responsibilities are only to the extent that they are spelled out in the Constitution and their recent attempts to prevent the Tribunal from proceeding are unconstitutional and subversive.

The CAA’s letter and the LDS press statement fail to outline any areas where the former CAA or the Tribunal has failed to follow principles of fairness or professional conduct. The process undertaken has been completely in line with international best practice, Commonwealth principles and, most importantly, the exact wording of the Constitution. We can only assume that this is political interference, and showing a preference for a Judge who has been known to rule in LDS’ favour.

André J. Mondon

Disclaimer

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