Continuation of PDM V/S Electoral Commission (Part II) |22 December 2011
32. The decisions of Atkinson v Government of Seychelles SCA1 of
2007 and Paul Chow v Gappy and ors SCA of 2007 support this view and are authorities for the proposition that constitutional provisions have to be interpreted in a purposeful manner. It must be noted that the rules of interpretation of written Constitutions differ from the interpretation of ordinary statutes. There is general recognition that Constitutions are the products of political bargains and arrangements for the government of a country and as such merits a general and liberal interpretation. Hence the Privy Council in Home Affairs v Fisher (1980) AC 319 held that “written constitutions were a consequence of their purpose and aim, quite distinct from legislation and subsidiary legislation. Accordingly they should have their own rules of interpretation especially in relation to fundamental rights." This principle was extended to all provisions of constitutions in general in another Privy Council case, that of AG of Fiji v DPP (1983) 2 AC 672 where it was held that "the political nature of the constitution should be acknowledged. They contain principles, norms and values amongst other things which relate to constantly changing social and cultural values rather than some eternal unchangeable meaning..."
33. Obviously these rules only apply when interpretation is necessary,
If there is no ambiguity, no interpretation is required. The obvious meaning has to be declared. If interpretation is required, this has to be done in the context of the Constitution as a whole. In this respect
the latin maxim Nemo aliquam partem recte intelligere potest antequam totum perlegit - No one can properly understand a part until he has read the whole - is relevant.
34. The most entrenched principle in our Constitution is that of
democracy; all the provisions of the Constitution are suffused with the principles of the rule of law, democracy and equality. The Preamble to the Constitution contains those principles together with the declaration that all citizens should be able to exercise their individual rights and freedoms with due regard to the rights and freedoms of others and the common interest. It is my view that all this serves in the interpretation of any individual provision of the Constitution.
35. The Preamble to the Constitution can also assist in the purpose of
interpretation. In re Remuneration of Judges 2 [1997] 3 SCR 3, the Supreme Court of Canada held that “…the preamble is not only a key to construing the express provisions of the Constitution Act, 1867, but also invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme. It is the means by which the underlying logic of the Act can be given the force of law.”
36. Dworkin in his seminal work “Law’s Empire” (at 255) states the
following in relation to interpretation of the American Constitution:
“The effort of each judge should be to construct the best
interpretation of equality of which he or she is capable. The inquiry might turn to any number of texts, precedents, or historical events, as well as moral intuitions and principled arguments. The best interpretation is that which achieves the greatest harmony among these diverse sources. We distort this process if we conceive of it as an effort to put into place a local community's unique concept of equality, instead of the constitutional goal of equality that is a common aspiration of American life. The same can be said of liberty, due process, and the other broad values of our constitutionalism.”
37. Similarly Justice Breyer of the Supreme Court United States believes
that judges must be concerned with purposes and consequences as well as plain meaning when interpreting the Constitution. (See Stephen G Breyer, Active Liberty: Interpreting Our Democratic Constitution (2005)).
38. I am of the view that what would most serve the present
circumstances is a functional approach that will see the provisions of the Constitution operate as a whole in a coherent and harmonious way. I am also guided by the provisions of other Constitutions of democracies. I am further aware that Constitutionalism in this day and age struggles to reconcile the rule of law with the rule of popular interests. I am therefore minded to interpret the Constitution only in the light of the wider commitment to the principles of liberty, fraternity, equality, justice and due process as expressed in the Preamble.
39. I have also trawled through different Constitutions and looked at
different methods of computing the number of PR seats including First Past the Post, Run-offs (Alternative Vote and Instant Run Off) Transferable Vote ( Single, Hare-Clark, d’Hondt and Sainte Laguё), PR largest remainder (Hare quota) and Parallel systems (such as the Seychelles system). What I can say with certainty is that the number of seats under each system is calculated in different ways but what is equally certain is that none of the systems outlined above take into account the number of spoilt votes in computing the number of directly elected or PR seats to Assemblies.
40. The reason for this is self evident. If one includes spoilt votes in such
computations, one is interpreting the intention behind the spoilt votes. What we can guess perhaps, in the present case is that a large number of persons in the elections of October spoilt their votes as a gesture of protest against what they saw as illegal elections taking place as a result of the purported illegal dissolution of the Assembly. However, a number of people also spoilt their votes as they did not know how to validly cast their votes or inadvertently spoilt their votes as is evidenced by previous figures in other elections. It is impossible to separate those “real” spoilt votes from the “intentional” spoilt votes. It is also impossible to say how many of these persons voted. To count the number of spoilt votes into total votes and ascribe to it the meaning of valid votes is to deliberately interpret the latent vote of a voter into a patent one. This then makes meaningless the distinction between spoilt votes and valid votes.
41. To ascribe the meaning of “total votes” to “votes cast” I must therefore
be persuaded that such a perverse intention was indeed intended by the 1996 Amendment. As I have pointed out above, deliberations in the Assembly do not elicit such a clear intention by those who proposed the amendment. If we are to keep faith with the Constitution and with its underlying basic principles of democracy and the rules of interpretation outlined above I cannot infer such an intention in the amendment.
42. The assertion by the Electoral Commission that they have always
used only “total votes” as opposed to “valid votes” in the computation for the number of proportionally elected members does indeed show the Commission’s consistency but as has been pointed out by Learned Justice Gaswaga in the Constitutional Court this however, does not make it right.
43. Finally, it would also seem to me, that there is a very obvious point
missed by all parties concerned. This alone may have been enough to
explain the reason for the different terms used in the original constitutional provision and the amendment. Since the original (1993) provision contained a formula which had to distinguish between “votes cast” (termed “C”) and “valid votes” (termed “D) both expressions had to be used. The new formula adopted in 1996 is one solely based on percentages and the term “votes cast” does not need to be distinguished from “valid votes” as it is not employed in the formula at all and hence can only bear the meaning of “valid votes.”
45. Why then may we ask was this computing error not spotted since
the introduction of the formula in 1996? The answer is simple. A review of election results since 1996 show the average number of spoilt votes in the National Assembly Elections (of 1998, 2002, and 2007) was 1189. Thus the margin in the computation for PR would have been slight between the use of the number of “valid votes” and “votes cast.” The error becomes manifest in the 2011 elections because the number of spoilt votes was 16,647.
46. In the circumstances and for all the aforementioned reasons I hold
that the term “votes cast” in Schedule 2 part 4 of the Constitution means “valid votes cast” and cannot include the number of spoilt votes for the computation of proportional representative seats to the National Assembly of Seychelles.
45. I am satisfied that the declaration of the 1st Respondent made
through its Chairperson Hendrick Gappy has contravened article 78(b) of the Constitution and paragraph 2 of schedule 4 of the Constitution.
46. I am further satisfied that the said contravention has affected the
rights and interests of the Appellant.
47. I direct the 1st Respondent to compute the number of PR seats based
on “valid votes cast” where the term “votes cast” is used in paragraph 2 of schedule 4 of the Constitution. For the avoidance of doubt this includes the computation of the number of proportionately representative members of both the Parti Lepep and the Popular Democratic Movement.
48. I make no order as to costs.
M. Twomey
Justice of Appeal