Well, it was that time of the year again, the re-opening ceremony of the Supreme Court of Seychelles took place on the 15th day of September, 2011.
As usual, members of the bench and bar congregated to one of the two cathedrals in Victoria for mass, this year it was held at the St Paul's Cathedral, the Anglican church. The Brass Band was there playing one of the theme tunes to the Lord of the Rings trilogy, secretly or unwittingly reminding us that all is not well in the world of Middle Earth, as Sauron's reach is vast, evil and corrupting, but that one day the rightful King shall return to put things in order. Could it be that that King is already amongst us?
The theme for this year's ceremony was that the judiciary was the beacon of hope in the country. This theme was reflected in the mass. But noteworthy in the mass was the choir, which comprised of Supreme Court staff. One of the songs was performed with such energy and vigor reminiscent of movie scenes depicting euphoric performance of a choir in some small town gospel chapel in the outbacks of Mississippi or Alabama. There was another solo which took the breathe away of most everyone present. Yes, there was certainly a beacon of hope for our youth to become great entertainers.
After mass, the members of the bench, bar and court staff took their place in the procession to the Supreme Court premises, Chief Justice Egonda-Ntende inspected the guard of honour, then all proceeded to Court Room No 1 for the piece de resistance, the opening speech of the Chief Justice.
The Chief Justice provided statistics on the number of active cases, numbers of cases being filed and the number of cases being disposed off. From the statistics, it could be discerned that there is a massive backlog of cases before the Supreme Court and the Magistrates Court. Statistics showed that based on the current trend, judges and magistrates were only just about able to cope with the number of cases being filed and some, but the Chief Justice stated that in order to more quickly deal with the backlog, it was necessary that 3 more Supreme Court judges be appointed. He went on to say that once the backlog is taken care of, then the number of judges can be reduced, by merely not appointing new ones until numbers are reduced to an optimum level.
The Chief Justice also found it unfortunate that some lawyers who take on legal aid cases appears to deliberately prolong the court process in order to rake in more fees. He proposed the implementation of a lump sum fee structure for legal aid fees, so that regardless of how long a case takes, a lawyer will be paid the same amount. He said that he will need to speak with all the stakeholders before implementing this practice. It is hoped that this new scheme would prevent lawyers who take legal aid cases from unnecessarily prolonging cases just to increase his/her fees. But there was a fear that legal aid lawyers might then get clients to plead guilty when they might not be, simply to take advantage of the new scheme. Whatever the specifics of the new lump sum scheme, it must be well thought out to prevent or reduce improper practices.
To that end and to confer on other matters, the Chief Justice has created a working group on Civil Justice, to discuss ways forward for the civil process. This Civil Justice working group will comprise of the very senior members of the bar, which he announced during the speech to be Messrs Pesi Pardiwalla SC, Kieran Shah SC, Francis Chang-Sam and John Renaud. The working group will also comprise of the Attorney General Mr Ronny Govinden, Principal State Counsel Mr David Esparon, the Registrar Mr Jude Bonte and the civil case judges. He said that, initially, he will chair the working group personally.
The Chief Justice mentioned a civil justice workshop which was held on the 5th & 6th September 2011, in which the Master of the Royal Court of Jersey, Master John Wheeler shared his experiences with the Seychelles bench and bar on the reforms undertaken in Jersey, the workshop was organized with the support of the Commonwealth Institute, represented at the workshop by its legal advisor Mr Mark Guthrie. The workshop brought out a unanimous position amongst the bench and bar that Alternative Dispute Resolution (ADR) mechanisms, in particular that of mediation, must be introduced in the civil justice process in Seychelles to help alleviate the court of its workload.
The Chief Justice also mentioned the possible introduction of a Commercial List/Track system in the civil process, so that cases allocated into the commercial track would go through a fast track process to ensure completion within 3 to 6 months maximum from date of filing. That this is necessary to deal with disputes of a commercial nature, with an aim to ensure that business and economic activity is not ground to a halt due to delays in civil litigation. The problem with such a system would be many lawyers would seek to get their cases resolved through this Commercial Track system, which would clog the system in time. Perhaps the answer to commercial disputes should lie in arbitration rather than a commercial court or commercial track system. Trainers from the Chartered Institute of Arbitrators could hold specialist classes or workshops in Seychelles to train our lawyers in the international standards required in arbitration and mediation. In no time, a panel of trained arbitrators/mediators can be ready to commence work in an arbitration court, which could be set up privately. An arbitration court makes more sense as well, given that more and more contracts of a commercial nature are providing for any disputes to be resolved through arbitration.
Statistics on court usage in the Seychelles courts shows that, on average, a Magistrates Court is used just under 2 hours a day. Given that the Magistrates Courts normal opening hours is 5 and 3/4 hours a weekday, this court usage is quite abysmal. The reasons for this are numerous, but often lawyers ask for adjournments for all sorts of reasons, and unfortunately, the judges/magistrates grant such adjournments. The Chief Justice proposed the implementation of a quasi wasted costs regime, in that the party or even the lawyer that seeks an adjournment would have to pay up for the cost of wasted public resources. It is hoped that this would prevent lawyers from seeking adjournments of hearings.
Another way in which the court can better make use of its time is with regards to the court vacations. Presently, judges are not using the court vacations as envisioned by law. Sometimes civil cases not of a pressing or urgent matter is heard during the court vacations when there are other matters as provided for by law that should be heard during the court vacation. Section 5 of the Seychelles Code of Civil Procedure states that a court may sit during the vacations to hear partly heard cases and cases of an urgent nature. In practice, partly heard cases are almost never fixed on court vacations. Section 7 of the Seychelles Code of Civil Procedure also states that appeals from the lower courts should be heard during the court vacation, but this is not the practice. Often, appeals from lower courts are set during term time, hence clogging up the court diary.
Another issue which should be looked into is the allocating of cases to particular judges from the moment the case is filed. This appears to be an archaic system. Both Judge Shaun Lyons of the Wood Green Crown Court and Master John Wheeler of the Royal Court of Jersey stated that in their courts, cases are not usually allocated to judges until the case is ready for hearing. Both state that a judge might not even know what case is before until the actual day set for hearing. This is a system that virtually all members of the bar agree with. It would ensure that a case set for hearing can be set before a judge who is free to hear a case on the day and it will also reduce corruption, in that if no one knew who would take a case prior to the hearing date, no one would be able to approach the judge beforehand, this system would reduce the potential for corrupt dealings. All mentions and interlocutory matters would be handled by a single judge or a master. If we brought in the experts to learn from them, we should follow what suit us, and this system would.
The Chief Justice also mentioned that there are moves to provide the judiciary with independence with regards to its finances. This can certainly help in improving the functioning of the judiciary. The judiciary should be able to hire the staff it requires and at appropriate wages. Often, the courts lose good staff due to not being able to pay high enough wages. By increasing wages, the judiciary can be more selective in the support staff they hire rather than having to settle for whoever may be around.
It will take a while yet before the problems with our judiciary can be sorted out. But some problems cannot be fixed by the Chief Justice. Some problems are beyond the grasp of the judiciary. If there are allegations of corruption amongst the judicial officers of the court, it is not the judiciary who selects and appoints judges. If the police cannot conduct a decent investigation which allows certain would-be-criminals to go home scotch free, this is beyond the control of the judiciary. If there are criminal prosecutions that are 10 years old clogging up the system, these cases can simply be withdrawn, but not by the judiciary. The judiciary will never be 'fixed' or 'cured' so long as other institutions are also failing to perform optimally. There must be an energetic and constant political will not just to 'fix' the judiciary, but the entire civil service as a whole.