Saturday, December 5, 2009

The National Assembly, the Law Making Process and the Role of Judges

The new National Assembly building was officially opened on Thursday, 3rd December 2009. The premises of one of the 3 branches of Government is now located at Ile du Port. The magnanimous and impressive building was a gift from the Government of China.

The National Assembly of Seychelles consists of 34 Members of the National Assembly ("MNA"). Of the 34, 25 are directly elected from district elections and 9 are proportionally elected members. Basically, for each 10% of the total votes cast in a general National Assembly elections that a political party obtains, that party is allowed an extra seat in the National Assembly - hence the 9 extra members, theoretically, it is possible to have a maximum of 10 proportionally elected members.

Of the 34 MNA's, one would be appointed as the Speaker of the National Assembly, one a Deputy Speaker, a leader of Government Business and a Leader of Opposition.

The National Assembly is the legislative branch of Government and so it has the powers to create, amend and abolish laws. Its powers are ultimate in this respect, except that it cannot amend the Charter of Fundamental Human Rights and Freedoms contained in the Constitution of the Republic of Seychelles, this charter of rights may only be amended by the people through a referendum.

So the laws of the land are created by the National Assembly, it is a common error of certain layman to think that it is the judiciary that makes the laws. In fact, the role of the judiciary is to apply the laws and, if the circumstances permit it, to interpret the law. However, where the law on a particular area is vague, lacking or non-existent, the judiciary may seek to fill that void. But this happens in very rare occasions.

A judge must apply the law as is, if the law is clear, he cannot sway from it, if he does so, he acts against the law, against the laws passed by the National Assembly and against the will of the people who voted in the MNA's. If the laws of procedure are such, he must follow it, he cannot sway from it, to do so puts his competence as a judge in question, but to do so deliberately puts him in contempt of the law that he swore under oath to uphold. This is misbehaviour in its highest sense.

Article 134 of the Constitution of the Republic of Seychelles provides for the removal of judges where it is found that the judge is either physically or mentally incapable of  carrying out his duties or for misbehaviour, these grounds are not exhaustive.

The same article gives the Constitutional Appointments Authority ("CAA") the power to launch an investigation against a judge. The CAA shall appoint a tribunal of 3 members who may only be selected from persons who have held office as judges or from eminent jurists of proven integrity. This tribunal then investigates the matter and makes its recommendation to the CAA. Article 134(3) of the Constitution states that if the tribunal recommends the removal of a judge, that judge must be removed by the President.

The law cannot be any clearer.

The Robing Room is the official blog of the Seychelles Legal Environment Website (, the only website about the Seychelles Legal Environment that is constantly updated.