Tuesday, March 29, 2011

Proposals for reform of Legal Profession

For at least a few weeks now, there has been a new version of the Legal Practitioners Bill that has been put in circulation. Accompanying it is a Bar Association of Seychelles Bill 2011. It appears that these bills have been put in very limited circulation, so limited in fact, that the people that it concerns the most - the legal practitioners, have not even have sight of these bills. The legal profession have also not been consulted about the policies behind these bills.

The latest version of the Legal Practitioners Bill mentions that it is a December 2010 edition. Previous versions have found great opposition from attorneys. This one is likely to cause the same. It seeks to allow individuals who qualified as lawyers of other countries to automatically qualify as a Seychelles attorney, allowing them to skip pupillage. In fact, it would make it easier for these individuals to become Seychelles lawyers compared to our law students who are going through the proper process. It seeks to create a Law Council with wide powers, amongst them to run the Seychelles bar exams, to discipline lawyers and to alter the qualification requirements to become a Seychelles lawyer. This Law Council will be made up of the Chief Justice, another Judge chosen by the Chief Justice, the Attorney General, a representative from the Ministry of Finance, a representative from the Ministry of Education and 1 member from the Bar Association. This is quite ridiculous. A council of 6 which will regulate the law profession but one that only has 1 member from the legal profession proper.

This new bill also does away with trying to bring in foreign law firms. There are no provisions to bring in the big names such as Clifford Chance, Allen & Overy, White & Case or SJ Berwin. The proponents of these bills have tried to convince the Government that these reforms would bring in the big name law firms and this would in turn bring in more business into Seychelles and create more employment opportunities for our young graduates. Although their previous editions of an LPA failed to address this issue adequately, this edition doesn't even bother to do that.

Yes, this Legal Practitioners Bill 2011 is another piece of nonsense. It's true aim is to give preferential treatment to foreigners, allowing them to qualify automatically as a Seychelles attorney. It's Law Council is designed to control the legal profession and abrogate the independence of the bar, its mandate is likely to be unconstitutional.

The Bar Association of Seychelles Bill 2011 is an epic fail. It seeks to abolish the present Bar Association and replace it with a statutory body that has no extra functions. It's true purpose is to limit the objects of the present Bar Association. Furthermore, the law proposed by this bill is clearly unconstitutional, it seeks to abolish a private organization and it also goes against every Seychellois' constitutional right to freedom of association.

The Robing Room is the official blog of the Seychelles Legal Environment Website (sites.google.com/site/theseychelleslegalenvironment), the only website about the Seychelles Legal Environment that is constantly updated.

Monday, March 21, 2011

Mathilda Twomey to join Court of Appeal

The local media announced on March 17, 2011, that the President of the Republic of Seychelles has approved the appointment of Mrs Mathilda Twomey (nee Butler-Payette) as a Justice of Appeal. Mrs Twomey will become the first ever woman appointed as a judicial officer in Seychelles higher in position than that of a Magistrate.

According to the March 19, 2011 edition of the new daily newspaper in Seychelles - Today in Seychelles, Mrs Twomey's appointment has found almost unanimous approval from the legal community. Positive reviews have come from senior lawyers such as France Bonte and Conrad Lablache. The Bar Association of Seychelles ("BAS") has been quoted as stating that Mrs Twomey fits the additional criteria that BAS believes a judge should have - that of considerable litigation experience. Too often in the past, lawyers who have hardly seen a courtroom have been appointed to the bench, and their lack of knowledge on legal procedure and evidence is exposed, to the detriment of the Seychelles legal system and the public.

Mrs Twomey completed her law degree from the University of Kent and was then called as a Barrister of England and Wales. She served as a Government lawyer at the Attorney General's Office, eventually rising to the posts of Senior State Counsel and Official Notary. She then went into private practice, founding the law firm of Pardiwalla Twomey (now Pardiwalla Twomey Lablache) with former Attorney General Mr Pesi Pardiwalla SC. Mrs Twomey was also part of the commitee that drafted the present Constitution of the Republic of Seychelles in 1992-1993. Since 1995, she has been residing in Ireland. Mrs Twomey is not expected to become a resident Justice of Appeal, instead, she will sit whenever the Court of Appeal is in full session (generally in April, August and December each year).

Despite being away for several years, Mrs Twomey has kept herself up to date with the latest legal developments in Seychelles, going so far as to be currently reading for a masters in law with a dissertation topic on piracy - an issue that has plagued the Seychelles lately. In fact, many of the lawyers are pleased that someone known to possess a sharp legal mind and thorough legal knowledge of the Seychelles legal system has been appointed to the highest court of the land.

The Robing Room is the official blog of the Seychelles Legal Environment Website (sites.google.com/site/theseychelleslegalenvironment), the only website about the Seychelles Legal Environment that is constantly updated.

Sunday, March 20, 2011

New Building but Old Practices

In a ceremony to mark the laying down of the foundation stone for the new Palaise de Justice, Chief Justice Egonda-Ntende remarked that there must be more accountability from the judiciary.

Last thursday, 17th March, saw the laying down of the foundation stone for the new Palaise de Justice. The new building is expected to be completed in June 2012, it will house the Supreme Court, Court of Appeal and all of the administrative offices of both courts. The building will be of two stories. The ground floor will house 4 Supreme Courtrooms, an auditorium, prison cells and numerous administrative offices. The 1st floor will house the Chief Justice's courtroom, a few other Supreme Courtrooms and the Court of Appeal. There is also a room on this floor earmarked as a Lawyers' waiting room, perhaps this will be the new Robing Room.

The whole project is being financed by the Government of the Peoples' Republic of China and the building shall be located at Ile du Port, adjacent to the National Assembly of Seychelles. A Chinese construction company will construct the new Palaise de Justice. The Chinese have always been cleverer than the west when it comes to such construction projects, preferring to use its own companies to build the projects rather than giving the money to a 3rd party to complete the project, which "could" lead to some of the funds disappearing into some swiss bank account. The problem here is with accountability.

And this brings us to the important speech delivered by Chief Justice Egonda-Ntende at the ceremony. The Honourable Chief Justice stated that in order for the judiciary to better serve its clients - the public, the judiciary must be more accountable. A new building does not mean a new era of justice, in fact, a new building means nothing if the judiciary continues to fail to deliver. And perhaps more mechanisms to increase the accountability of the judiciary is one way to improve things.

Let's be clear about what is meant by "the judiciary", even if the Chief Justice did not say so, it is clear to those in the know that when he mentions accountability of the "judiciary", he is not talking about the administrative staff. He meant, or he ought to have meant, the "judges". That judges must be held to be more accountable for their actions.

Too often have we seen such crappy judgments from judges that are supposed to be learned. Judges get the most simple principles wrong. Often lawyers wonder if these judges ever went to law school... and in fact we do have judges that never did! They try to sound clever and impress the laymen, and in fact, they do often get away with impressing those that don't know any better, but trouble happens when the crappy judgments of the Supreme Court meets their superiors in the Court of Appeal. I do recall not too long ago the Supreme Court judges acting as the Constitutional Court going into big complex arguments about the principles of interpreting legislation, only for the Court of Appeal to pronounce that there is no need to go into the principles of interpretation when legislation is crystal clear and can simply be read and applied. A polite way for the Court of Appeal to say "can't you guys f***ing read?" to the Supreme Court judges. So we have the Court of Appeal who can correct the Supreme Court, but only when people appeal. But then who is around to keep the Court of Appeal accountable?

In fact there is a procedure in which judges may be investigated and even removed from office. It is the Constitutional Appointments Authority who has the power to initiate investigations against a judge. The procedure has been set out in an earlier article of the Robing Room, which you may view by clicking here.

Many lawyers and in fact some judges have remarked, albeit in private, that the only way our legal system can improve is if a few judges leave... or are made to leave.

The Robing Room is the official blog of the Seychelles Legal Environment Website (sites.google.com/site/theseychelleslegalenvironment), the only website about the Seychelles Legal Environment that is constantly updated.

Financial Piracy Part Deux

In a further development to the allegations of financial piracy brought before a New York Court, the claimants' attorneys have now, according to an article in Business Wire, which you may view by clicking here http://www.businesswire.com/news/home/20110310005527/en/Attorneys-Hofheimer-Gartlir-Gross-LLP-Aspect-Law , requested off the International Criminal Court to investigate the Government of Seychelles' role in these matters.

For the past few years, controversy has arisen in the Seychelles' financial sector due to moneys in bank accounts being "blocked" through orders of the Financial Intelligence Unit (FIU) without the need to obtain a court order.

The Robing Room is the official blog of the Seychelles Legal Environment Website (sites.google.com/site/theseychelleslegalenvironment), the only website about the Seychelles Legal Environment that is constantly updated.

Monday, March 7, 2011

Financial Piracy in Seychelles?

Call it Financial Piracy or daylight robbery but "it" has been happening for a few years now. A commercial bank receives instructions from the Financial Intelligence Unit ("FIU") to block a bank account and the commercial bank goes on to block the account without questioning the legality of the FIU's instructions or considering their contractual duties to their customers. Things are made worse when the commercial bank then allows incoming transfers of funds to the account but continues to refuse outbound transactions.

Things have apparently now come to a head through a New York lawsuit which is the subject of an article which is making the rounds in Seychelles. The article can be viewed through the following link:

Seychelles attorneys have argued that the whole exercise is likely to be unconstitutional and that the FIU are erroneously applying powers given to them under Anti-Money Laundering laws and that the commercial banks are blindly following the FIU's instructions without considering their legal position in the matter.

The Anti-Money Laundering Act ("AML") places a duty on commercial banks to report a suspicious transaction to the FIU. The FIU can then instruct the bank to block or prevent the specific transaction. In practice, the FIU has been instructing banks to block the entire account despite the fact that the AML does not allow for this. 

The Robing Room is the official blog of the Seychelles Legal Environment Website (sites.google.com/site/theseychelleslegalenvironment), the only website about the Seychelles Legal Environment that is constantly updated.