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Legislative vs Executive legal standoff | 30 November 2019

5% increase salary petition dismissed

 

In a unanimous decision, the Constitutional Court has dismissed the petition brought by President Danny Faure, in his capacity as the minister for public administration, against the National Assembly represented by Speaker Nicholas Prea.

Initially scheduled for Monday November 25, the judgment in the case was finally delivered yesterday.

The petition was claiming that the National Assembly prevented him (President Faure) in discharging his Constitutional functions when it quashed statutory instrument (S.I) 18 of 2019.

The Public Service Salary Act requires the minister responsible for public administration, in this instance President Faure, to review and amend the salary table for public service employees every five years.

The case is the first of its kind which directly pitches the executive branch of the government against the legislative branch before the court of law – a consequence of having two opposing political parties in charge of each of these branches for the first time in Seychelles’ history.

Judges Ronny Govinden, Gustave Dodin and Laura Pillay’s final determination was that the National Assembly of Seychelles was acting in its legislative powers, vested by the Constitution, when it annulled the statutory instrument (SI) in April this year “and as such did not contravene any provisions of the Constitution”.

S.I 18 of 2019 would have guaranteed a five percent increase to public servants in accordance with the Public Service Salary Act.

It is to be noted S.I 18 of 2019 was pushed through by the executive branch of the government on April 1, even as the Public Service Salary (Amendment) bill was still being considered and heavily debated on by the National Assembly.

The S.I was subsequently shot down by the opposition members of the National Assembly (MNAs), who hold a majority in the parliament, with the argument that the pay increase should be distributed equally, most especially to assist the lower paid public servants.

LDS (Linyon Demokratik Seselwa) members had suggested an increase of R450 across board.

The Constitutional Court limited its determination to only the decision to annul S.I 18 of 2019 and whether it was made in compliance with the Constitution and relevant legislation.

The court did not consider the merits of and reasons for the annulment, and did not consider the contents of S.I 18 of 2019. It also did not consider the constitutionality of the Interpretation of General Provisions Act (IGPA).

It rather considered Articles 66, 85, 86 and 89 of the Constitution which confer law making power in the National Assembly.

The judges confirmed that Article 89 permits the National Assembly to delegate certain law making powers to different arms of government.

However, the court found that the delegation of power by the National Assembly to the President does not stop the National Assembly from exercising its constitutionally mandated oversight function of all laws, including delegated legislation made under Article 89.

Ultimately, the National Assembly was empowered in these circumstances, to overwrite the President’s delegated law making function, since the law making responsibility remained with the National Assembly

During the suit, President Faure’s legal counsels had advanced a number of defences to challenge the constitutional validity of the National Assembly’s decision.

The court concluded that the National Assembly did not breach President Faure’s right nor did it contravene the Constitutional provisions on the separation of powers.

The petitioner (President Faure) also argued that the parliament’s actions had gone against Article 35 (d) of the Constitution, which recognises the right of every citizen to equal pay for equal work.

Nonetheless, the court noted that the National Assembly had not breached Article 35 (d).

Another argument, pushed forward by the petitioner, was that the National Assembly acted ‘ultra vires’ or beyond the scope of its standing orders. The Constitutional Court did not find this to be grounds for contravention.

During the reading of yesterday’s judgment, the Constitutional Court urged the executive and legislative branches to once more meet and discuss the issue in order to find a solution to what the court referred to as ‘a political standoff’.

Speaking to the media after the ruling, Speaker Prea said that the National Assembly is hoping to go back to the drawing board with the executive to negotiate the salary review.

“I have believed since the very beginning, that there should have been further discussions between the National Assembly and the executive,” Speaker Prea said.

He noted that a step in this direction had been taken with the setting up of a committee which was expected to re-evaluate the salary increment but discussions quickly came to an end when President Faure brought his petitions before the court.

“I always believed that the correct procedures were taken as per our standing orders and that our decisions were the right ones.”

It was not possible for Seychelles NATION to obtain the comments of President Faure’s lawyer Alexandra Madeleine.

The court did not fail to observe that Seychelles critically needs to evaluate its framework for legislation delegation and oversight in order to better clarify the parameters in case of future similar petitions.

It however noted that this is a matter best left to the National Assembly and executive.

 

Elsie Pointe

 

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