Findings of commission of inquiry in “unlawful” search of leader of opposition’s luggage Police to seek judicial review from Supreme Court |18 April 2020
Lawyer Elizabeth (Photo: Louis Toussaint)
Lawyer Frank Elizabeth, who is representing the Seychelles Police Force (SPF) in the Commission of Inquiry appointed by President Danny Faure to establish the facts of the case in the matter in which leader of the opposition Wavel Ramkalawan had his luggage searched at the Seychelles International Airport by ANB officers on February 8 upon his return from South Africa, yesterday stated that the police refuse to accept the recommendations and findings proposed by Judge Fiona Robinson and that they will be taking the matter to the Supreme Court for Judicial Review.
The commission was appointed by President Faure on February 17 and after hearing evidence from 25 witnesses, officially released the report findings on Tuesday this week.
Speaking at a press conference yesterday morning, Mr Elizabeth noted that they are in agreement with the majority of the findings of the commission except for the finding that the search by the two ANB officers on Mr Ramkalawan was unlawful, as per S25 (1) (a) of the Misuse of Drugs Act 2016.
“Overall we agree for the most part with the findings of the report except for one point which deems the search unlawful. After consultation with other interested parties, we have decided that it is in the best interest of the country, in the best interest of the law, that we take this matter to court because it is not clear, from what Judge Robinson has stated, as to whether the police still has the right or powers to search a person when the person gives his consent for the search to be carried out”.
As per Judge Robinson’s primary findings, one of the officers “did not satisfy the test of reasonable grounds for suspicion before he searched the Hon. Ramkalawan. Consequently, the search on Hon. Ramkalawan was unlawful”.
“The reasonable suspicion test comprises two elements. Firstly, the officer must form a genuine suspicion that he will find a controlled drug or an article liable to seizure for which the search power under section 25 (1) (a) of the Misuse of Drugs Act 2016, allows him or her to conduct a search. Secondly, the suspicion that a controlled drug or an article liable to seizure will be found must be reasonable. As I understand it, the exercise of the power to stop and search depends on the probability that the person searched is in possession of a controlled drug or an article liable to seizure. It does not depend on the person concerned being suspected of committing an offence in relation to the object of the search.
(B) Under section 25 (1) (a) of the Misuse of Drugs Act 2016, an officer must not search a person even with his consent or even when a person voluntarily submits to a search, unless in either case, the search is in accordance with section 25 (1) (a) of the said Act”
It must be noted that Judge Robinson acknowledged (in secondary findings) evidence which indicates that Mr Ramkalawan instigated the search of his luggage, a fact which bears legal weight according to Mr Elizabeth.
“According to her, the circumstances under which Mr Ramkalawan was searched, even though he did consent to the search, Judge Robinson said the search was still unlawful so we want to take this matter to the Supreme Court for judicial review, and we will argue Article 20 on the Constitution and depending on the outcome of the case before the court, we will decide whether or not to comply with the recommendations of Judge Robinson.”
Mr Elizabeth and his client, the police, are seeking the court’s opinion as to whether Judge Robinson’s findings are accurate as per the law. He explained that the decision should not have been decided upon solely in consideration of the Misuse of Drugs Act 2016, but must also take into account the Constitution, especially since it was relied upon by Commissioner of Police Kishnan Labonte when he provided the commission with evidence.
Article 20 of the Constitution pertains to individuals’ right to privacy, to which all citizens are inherently entitled.
“It basically states that the police and authorities have no right to search an individual or their property without consent or permission. However, the inverse also applies in the sense that if they cannot search you without permission, they can also search you if you have provided permission. In this specific case, Hon. Ramkalawan gave the officers permission to search his luggage.”
“It gives the wrong impression, in my opinion, to the public because as you can imagine, there are a lot of people out there now thinking, because of this recommendation the police or ANB officers will no longer be able to search people either at the airport or points of entry or on the public roads. Let me hasten to add that this is not a precedent. It is a commission of inquiry, in my view it would have no impact legally as it is not a court case.”
Laura Pillay