The 2011 Re-Opening of the Supreme Court: Room for Improvement

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.

The Robing Room is the official blog of the Seychelles Legal Environment Website (http://www.seychelleslegal.net), the only website about the Seychelles Legal Environment that is constantly updated.

Wikileaks Leaked Cable Mentions Seychelles Judiciary

Unless you've only been looking at State Controlled Media and not accessing your email and Facebook account, you would have definitely noticed a number of articles and blogs mentioning the Wikileaks leaked report of US Ambassador Cesar B. Cabrera entitled "Paradise Lost: How Corruption Bankrupted Seychelles".

The report is a summary of why, according to the US Ambassador, Seychelles defaulted on its bond repayments in August 2008. It touches upon several facets of Seychelles society, and the judiciary was not spared with the report stating that the Seychelles judiciary is weak, not independent and subservient to the executive. The report does not state its sources of evidence and it appears to be based wholly on hearsay. But what's that old saying about smoke and fire?

The Mauritian Paper L'Express, appears to have broken the story, the article in French can be seen by clicking here.

An English translation of the article can be read through the following blog entry from the Seychelles Reality Blog.

And if you want to see the source material, i.e. the actual report, you may view it by clicking here.

The Robing Room is the official blog of the Seychelles Legal Environment Website (http://www.seychelleslegal.net), the only website about the Seychelles Legal Environment that is constantly updated.

New Web Address for the Website of the Seychelles Legal Environment

The Seychelles Legal Environment website has a new url. Check it out at:

www.seychelleslegal.net

The Robing Room is the official blog of the Seychelles Legal Environment Website (http://www.seychelleslegal.net).

Re-assertion of Authority

The Consultative Committee on reforming companies legislation met on the 7th July 2011 and this time Attorney General Ronny Govinden was present. Notably absent was any representative of the Bar Association.

It was established that OECD pressure led to the formation of the problematic Companies Bill that has been in circulation since early this year and it was confirmed that the Bill was a product of a consultant, at the behest of the Ministry of Finance. It was revealed that the concerns of the OECD can be met with minor amendments to various commercials laws without the need to adopt the much maligned Companies Bill and that the Attorney General's Office, with proper qualified legal draftsmen, will draft the necessary amendments.

It was agreed that stakeholders look into the current Companies Act and the Companies Bill with a view to having a new Companies Bill by early 2012.

Noteworthy was the re-assertion of authority of the Attorney General's Office. The Attorney General's Office reminded members of the committee that procedure as laid down by law, must be followed in the drafting of legislation and that this was not done with respect to the Companies Bill, and that it is the Attorney General's Office who is mandated to do the drafting work.

The Attorney General is the legal advisor of the Government. In recent years, many Government departments and para-statal organizations have started doing all sorts of things without taking legal advice, and sometimes by taking legal advice from persons not qualified to give such advice. It is only when the shit hits the fan that they then come running to the Attorney General's Office whose Attorney General and State Counsel are then tasked with trying to clean up the mess. Many lawyers have stated that numerous civil (especially the great number of judicial review cases) and constitutional court cases would never have needed to go to court if the Government had obtained appropriate legal advice.

The recent developments with regards to the re-assertion of authority on the part of the Attorney General's Office is a step in the right direction. It should eventually mean that the courts will not have to be clogged up with cases that shouldn't be there in the first place, it will mean that perhaps the Attorney General's Office should increase its numbers of State Counsel to cater for legal advisory work, which will mean more opportunities for employment for our law graduates and it will eventually lead to a more efficient Government.

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.

Consultative Committee Decides that Consultations are not Allowed

With the backlash from the lawyers and accountants on the previous Companies Bill 2011 which was being circulated earlier this year, the Government decided to create a Company Law Consultative Committee whose mandate was supposed to look into improving upon our company laws.

The committee met last week (8 June 2011) and present were representatives from the Ministry of Finance (MoF) (headed by Mr Rupert Simeon), SIBA (headed by Mr Steve Fanny), SAOPRA (Mr Conrad Benoiton), Chamber of Commerce (Mr Clifford Andre), the Attorney General's Office (Mrs Lali & Mrs Samantha Aglae), the Association of Seychelles Accountants (Mr Richardson) and the Bar Association of Seychelles (BAS) (Mr Conrad Lablache). A nice little collection of representatives from a wider group of interested stakeholders. But that's as good as it got.

Chairing the meeting was the chief representative of the MoF, Mr Rupert Simeon, who basically declared that the committee will have to work on a new draft Companies Bill 2011 which has already been drafted, and which is in fact substantially the same as the one circulated earlier in the year. The very same draft that everyone was against, the very same draft that caused the Government to create the committee in the first place. The MoF rep informed the other members of the committee that the committee will proceed to work on company law reform based entirely on that draft bill.

This "new" Bill still envisions the eradication of the proprietary company as a corporate entity. It still seeks to interfere with other areas of the law that are the preserve of our Civil Code. Our current Companies Act 1972 was drafted with the assistance of the world renowned Professor Pennington (yes, the one who wrote the company law textbook) and now we're getting a new Companies Bill drafted by people nowhere near the academic credentials of Pennington. People who can't draft to the standard of qualified draftsmen. People who have far weaker academic credentials than our very own lawyers and accountants. It's our lawyers who have degrees from highly regarded universities such as Cambridge University and the University of London (LSE included). It's our lawyers who qualified from the Inns of Court School of Law as Barristers. Our accountants are ICAEW Chartered Accountants and ACCA Certified Chartered Accountants. Yet our professionals are ignored and Professor Pennington's Companies Act is mocked by foreigners with their own personal agendas.

In a letter from its Chairman, Mr Antony Derjacques, addressed to the AG and other committee members, the Bar Association of Seychelles has decided to stop taking part in this sham process.

It's a shame that those responsible for this committee could not adopt the open dialogue approach taken recently by Ministry of Employment with regards to employment law reform. The Bar Association of Seychelles was so impressed with the Ministry of Employment's approach that it even wrote about it on its website (click here to view).

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.

Supreme Court rules (in strong terms) against Public Bodies

May 2011 was a momentus month for Seychelles, as everyone will know there was the Presidential Elections, which the incumbent President James Michel of Parti Lepep won with almost 56% of the votes cast. Coming in at a fairly distant second was SNP candidate and the Leader of Opposition Wavel Ramkalawan, with almost 42% of the votes cast. But May 2011 also had other interesting developments, particularly in the sphere of the law courts. There was the Constitutional Court challenge of Mr Viral Dhanjee, whose constitutional right to participate in Government was breached when he was prevented in taking part in the said Presidential Elections (as declared by the Constitutional Court!). There is another Constitutional Court challenge from Mr Philippe Boulle, on the voting rights of detainees and prisoners, this case is yet to be decided upon.

But there were two other cases decided in the Supreme Court of Seychelles, which made important and potentially far reaching judicial precedent, which the Seychelles press has been completely silent about. Perhaps the Presidential Elections and the above Constitutional Court challenges drowned them out. But the Robing Room will report.

The first of these two cases is the case of the Financial Intelligence Unit v/s Sentry Global Securities Ltd & Ors, decided in the Supreme Court of Seychelles before Chief Justice Egonda-Ntende. In this case, the Financial Intelligence Unit ("FIU"), sought to confiscate the funds in bank accounts held by 13 entities held in Seychelles offshore bank accounts. The FIU brought in some evidence against some of the parties, but all of it was very circumstantial, and in fact, the main evidence against several other parties is simply that the corporate entities had the same contact address. A lot of the so-called evidence were also unsupported by any documentary proof, which should have been easily obtainable, for example, the FIU alleged that there were cases against the Respondents in US Courts but then failed to present any judgments or orders from these US Courts against the Respondents. The FIU case was dismissed against all of the Respondents. What does this case mean? Well, the Supreme Court is basically telling the FIU that they should come to court with the best evidence available rather than a string of circumstantial and hearsay evidence.

Another noteworthy case decided this month was the case of Oceana (Pty) Ltd v/s The Land Registrar, in this case, the Petitioner brought a judicial review case against the Land Registrar for failing to register a transfer of land. In this case, decided by the Chief Justice in the Supreme Court, it was held that the Land Registrar had failed to use his/her powers as prescribed by law and that the conduct of the Land Registrar in refusing to register a land transfer was inexcusable, indefensible and an outright abuse of power. This case shows the failings in our public institutions and points out that public institutions are now even ignoring or refusing to follow the law. However, this is but one of the very rare cases in which the failings of the Land Registrar is exposed. The Government should act on this case and take this occasion to improve the functioning of the Land Registrar and the Registrar General's Office in general. Surely it cannot help public confidence and investor confidence if our Land Registrar simply ignores or refuses to abide by the law.

Both of these cases are available from SAFLII and you may click on case names (above) to access the whole of the said judgments.

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.

Regulating Professions - Double Standards

The Wednesday, May 18 2011 issue of the Seychelles Nation, one of the 3 daily newspapers of Seychelles, is one particularly interesting issue for the Robing Room. Readers who went through the advertisements would have seen a very interesting notice from the Ministry of Land Use. In that notice, the Director of Surveys informs members of the public that it is unlawful for anyone to pass him/herself as a Licensed Land Surveyor and that the public should only engage Licensed Surveyors. The notice goes on to actually list out all of the licensed Land Surveyors.

It is very nice, and indeed proper, for a regulated profession, such as Land Surveying to have the support of the authorities. This is how things should be. Unfortunately, this is not the case for all regulated professions. In particular the legal profession in Seychelles.

Lawyers in Seychelles are officially referred to as an Attorney-at-Law. There are no such lawyers entitled as a Counsellor-at-Law. A Barrister or Barrister-at-Law is an academic qualification that some lawyers use to beef up their profile/image - to show that they have also been called to the bar of England & Wales, but a Barrister who has not been admitted as an Attorney-at-Law in Seychelles is not allowed to practice as a lawyer in Seychelles, or hold himself out as being able to do so.

Section 21 of the Legal Practitioners Act makes it an offence for anyone who holds himself out as being able to perform the duties of an Attorney or a Pupil Attorney, when they are not actually one. It does not matter that someone does not use the term or specifically represent themselves as an Attorney-at-Law. So long as the person tries to hold him/herself out as being able to perform the duties of an Attorney, then he/she would fall foul of the law. So these 'Legal Officers' employed by certain companies and Government Departments and Parastatal Organizations would also, in some cases, be breaking the law.

And it's not like the legal profession hasn't tried to do something about it. False lawyers have been reported to the judiciary, the licensing authority and to the Attorney General, to no avail. None of the authorities have cared to do anything about it. It's well known that a few Corporate Service Providers are also masquerading as "Law Firms" and giving legal advice to the public and the authorities are not doing anything about it. Complaints from the Bar Association of Seychelles were not entertained. With nothing being done by the authorities it is therefore not shocking that more individuals go around calling themselves "lawyers". More groups goes around calling themselves "law firms". And now, a Corporate Service Provider has even published an advert on the Seychelles Nation, the daily newspaper mentioned above insinuating that they can provide pupillage.

Yes, as the authorites continue to do nothing, more and more individuals and groups will get more ambitious in how they represent themselves. Many are giving legal advice on Seychelles law that is wrong and some are even drafting documents that are unlawful. None of them have any training in Seychelles law and more importantly, none of them are qualified as Seychelles attorneys.

What does this mean to you? Well, that contract you signed may be invalid, that property that you purchased may be invalidated (and in certain circumstances liable to be confiscated by the Government if you are not Seychellois), those shares that you purchased may be invalidated, that comfort advice that you thought you obtained when you "consulted a lawyer" might mean nothing. Because remember, in the end, if anything goes sour and you have to run to the courts for help, it is the Courts of Law that will determine whether any agreement you actually entered into or any advice you received is actually valid. And the Seychelles courts of law will not be deciding issues using English law, Australian law, Irish law, South African law, Mauritian law, French law or Indian law, it will be deciding matters using Seychelles law.

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.

Numerous bills kicked into the curb

The word in the dusty hallways of the legal world is that all of the Bills that were being proposed by certain factions in the Government have all been shelved, more or less.

The Companies Bill 2011, the Trusts Bill 2011 and the Corporate Service Providers Bill 2011 were all being presented by SIBA on their website and were being touted as modern pieces of legislation. But modern does not mean good, and just like Windows Vista, none of these Bills will be going any further in their present form. Thank God that trees didn't have to be cut down to produce paper to put these rubbish pieces of legislation on them. A lot of the opposition to these Bills, particularly the Companies Bill, from Civil Society groups like the Bar Association of Seychelles and the Association of Seychelles Accountants and some good sense from those higher up in power seems to have defeated these Bills, for now. Originally, the Bills' proponents hoped that these Bills could be passed prior to the upcoming Presidential Elections. It now appears that although there is political will to bring in new pieces of legislation in these areas of the law, any new pieces of legislation will be formulated through the institutions and bodies that have the real know how.

Then there is the Legal Practitioners Bill 2011. Re-surfacing like a dirty and maggot infested Phoenix from a garbage dump site after being put down by opposition from attorneys in mid 2009, this Bill, in its present form, has been put down once again. Although, there appears to be some political will to produce a new Legal Practitioners Act, it will not be based on the one being circulated, instead comments circulated by the Bar Association will be considered instead.

Another piece of legislation doing the rounds was the Bar Association of Seychelles Bill 2011. This one appears to have been rejected hands down by the powers that be, skipping the recycle bin and going straight into the incinerator, this Bill is obviously proposing unconstitutional laws, something that its proponents have no idea about.

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.

Elections: What happens if no one gets 50% of the votes cast?

The Presidential elections are set for the 19th, 20th and 21st May 2011. Four Presidential candidates are taking part, these are the incumbent President of the Republic of Seychelles Mr James Michel of the Parti Lepep, Leader of Opposition Mr Wavel Ramkalawan of the Seychelles National Party, Mr Ralph Volcere of the New Democratic Party and Mr Philippe Boulle as an independent candidate.

In order to be elected President, a candidate must obtain more than 50% of the votes cast if 3 or more candidates are running. In the past elections this has always happened and this was always expected to happen. According to the law, if no one manages to poll over 50% of the votes cast in an election with 3 or more candidates, then there will have to be a further round of voting.

This further round of voting will include only the 2 candidates which have polled the highest and the second highest number of votes (although if there are ties, then the law provides so that all equal first may participate, and also all equal seconds and if all candidates obtain the exact number of polled votes then all candidates may run again).

The law also states that any further round of voting must take place not less than 7 days and not more than 14 days from the preceding round of voting.

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.

Mathilda Twomey sworn in as Justice of Appeal

Mrs Mathilda Twomey took her oaths yesterday at State House before President James Michel and a host of distinguished guests. She becomes the first ever woman appointed as a judicial officer higher than that of a Magistrate.

The Robing Room had reported on the appointment in an earlier article, which you may view here. The Seychelles Nation, the Government daily newspaper also reported on the event.

When interviewed by the SBC television, President of the Court of Appeal, Justice Francis MacGregor stated that Mrs Twomey is a very intelligent person and has a formal education in French law, something that many foreign judges did not have, she is therefore be an excellent addition to the Court of Appeal.

On her part, Mrs Twomey stated that she expects to do her job with professionalism and without fear or favour. 

 

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.

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.

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.

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.

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:

http://www.businesswire.com/news/home/20110303005490/en/Financial-Piracy-Suit-Filed-Seychelles-Hofheimer-Gartlir

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.

More opposition to the Companies and Trusts Bills

Well, don't say that the Robing Room didn't warn you. Today the Association of Seychelles Accountants, whose Chairman is the much respected Chartered Accountant Mr Bernard Pool, circulated its comments on the proposed Companies Bill 2011 and gave it an overwhelming thumbs down. Amongst many other points, they too found it curious that the Companies Bill sought to remove the proprietary company. They also pointed out that the Bill did not serve the recommendations of the OECD. The Bar Association of Seychelles had already commented on the bill since February 21. Their comments may be viewed here.

The Bar Association of Seychelles also released its comments on the proposed Trusts Bill 2011 today. Rejecting it in even stronger terms than the Companies Bill, 2011. They noted that the concept of trusts is incompatible with the Seychelles legal regime. The Bar Association also noted that this Trusts Bill would allow the true identities of the shareholders of IBC's to be hidden even further, which goes against the recommendations of the OECD on more information on the owners of offshore entities.

Today was the deadline for the public to comment on the 3 bills that were on display on the SIBA website. As far as the Robing Room is aware, it appears that no organization had the time to come out with a position paper on the International Corporate Service Providers Bill, 2011. That said, this bill would have affected the members of SAOPRA (the association of corporate service providers) more than anyone else.

In fact it was SAOPRA that led the charge against the Bills by managing to arrange a meeting with the proponents of the Bill only a day or two after the advertisements for comments came out. And although members of the bar were invited to attend, the vast majority decided to boycott the meeting, which the bar believed would have been held only so that the proponents of the bills could tell the higher ups that they did "hold consultations" with the main stakeholders. A few years ago, workshops were held on the Securities Act 2007 and despite some lawyers (the real ones) pointing out some obvious flaws in the piece of legislation, nothing was ever done to correct the flaws and today the Seychelles stock market can be found at... oh wait... there isn't one.

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.

The Companies Bill, the Trusts Bill and the OECD - What's it all about?

Well we have all been hearing about the Companies Bill, the Trusts Bill etc etc..., the SBC continues to show adverts on the telly reminding the public that if they want to comment on any of the Bills, they should do so by February 25.

We've heard that the Bar Association thinks that the Companies Bills 2011 is rubbish and the Robing Room has heard through the grapevine that the Association of Seychelles Accountants are going to basically say the same thing on the Companies Bill.

But why does the Government or certain factions of the Government believe that the current laws needs changing?

It is all apparently because the Organization for Economic Co-operation and Development ("OECD") has been applying some pressure on Seychelles. In particular, the OECD is concerned with the lack of information on the accounts and owners of Seychelles' offshore entities. Put another way, the OECD disapproves of how our current laws allow our offshore companies, primarily the International Business Company ("IBC"), to function without having to provide audited accounts or details on who owns these companies. Not a very transparent practice. Offshore entities have been accused as vehicles for "tax avoidance" (people in the industry like to call it "wealth management"), and the OECD doesn't seem too happy about the fact that there is no easily accessible information on the financial affairs of these offshore entities and its owners. Apparently, the OECD, who maintains a black list of countries with poor transparency laws, has threatened to put Seychelles in the black list unless something is done.

Hesto presto, SIBA, in charge of the offshore industry in Seychelles decided to act upon this. What should they do? Did they go to the Attorney General for advice? Doesn't look like it. Did they consult any of the key institutions connected with the offshore industry? Nope. Apparently, they hired one man to draft the Companies Bill and formulate its policies without wider consultation and the same man also drafted the Trusts Bill, but this time this Trusts Bill was also reviewed by "one of the world's largest offshore law firms and have some of the world’s leading offshore trust lawyers in the major small island state financial services jurisdictions, including Bermuda, Jersey, Cayman Islands, BVI and Mauritius".

This Companies Bill 2011 now wants to change domestic company laws, the Civil Code, the Business Tax Act, accounting practices for not only offshore entities, but also domestic ones and so on and so on. But wait a minute, isn't the OECD's concern only to do with offshore entities? So what is SIBA doing tinkering with other areas of the law that the OECD isn't even concerned about?

Then here comes the odd thing - the Trusts Bill 2011. This bill will actually further protect the true identities of the owners of these offshore entities by making declaration of trusts to the authorities optional. So we have SIBA engaging someone to draft a Companies Bill to please the OECD, then at the same time, SIBA engages that same person, with the assistance of "one of the world's largest offshore law firms and have some of the world’s leading offshore trust lawyers in the major small island state financial services jurisdictions, including Bermuda, Jersey, Cayman Islands, BVI and Mauritius" to prepare the Trusts Bill 2011 to defeat the very concerns that the OECD has.

So the people supporting the Companies Bill 2011 are saying that it must get passed to please the OECD and then, at the same time, that very same Companies Bill 2011 isn't actually addressing the OECD concerns and then in comes the Trusts Bill 2011, which goes even further against the OECD recommendations. Are the people who are backing these Bills begging the OECD to put Seychelles on the black list? Cause it definitely looks like it. The Government might as well tell the OECD to put us on the top of that black list right now.

This is what happens when you don't hold honest and proper consultations with the real experts such as your Attorney General, your legal practitioners (the real ones who actually did a proper pupillage), your accountants and most importantly... your public.

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.

Bar Association of Seychelles Speaks Out Against Proposed Companies Bill 2011

In a letter addressed to the Policy and Strategy Division of the Ministry of Finance dated today, the Bar Association of Seychelles ("BAS") made known its position on the Proposed Companies Bill 2011. BAS called on the Government to reject the bill  "in its entirety".

BAS states that the policy changes with regards to domestic companies appears to be unsubstantiated and that the bill seeks to change not only the "existing company laws, but also established and entirely separate areas of the law...". BAS goes on to state that the bill seeks to encroach upon the acquired rights and predetermined obligations of individuals and not only companies. BAS goes on to state that if the bill is enacted as is, "its effect and consequences would have wide ranging and negative repercussions."

BAS went on to state that the exercise of company law reform should be done in wider consultation with lawyers and other stakeholders and should not be the ambit of "a select few individuals".

Already the word is out that those in high positions in Government are now considering opening a dialogue with BAS and the wider community. What is sad about all of this is that open dialogue should have been the very first step in any exercise to amend such an important area of the law such as a country's company laws.

The only way that the public can be certain that there is sincere attempt for company law reform is if the Government rejects this woeful Companies Bill 2011 and its accompanying white paper from SIBA and start from scratch, but this time, with the involvement of all of the stakeholders, and this includes the public at large.

The first step would be to decide on what needs changing or improvement with regards to our current laws. Only then should a policy paper be drawn. And once this is put to the public, only then should any amendments or new pieces of legislation be drawn up.

SIBA should also be investigated. Domestic company laws, laws on capacity, laws on pledges are areas of the law that are none of their concern (and areas of the law that the bill sought to change). How come SIBA are drawing up policy papers on these areas of the law? How come SIBA has come up with an almost 400 page Companies Bill? Did they use Government funds to produce these documents? Are they using parastatal employees to do work on these documents, which are outside of their functioning area (basically incorporating international business companies)? Should the Ombudsman investigate SIBA? Should the President look into the affairs and the composition of the board of SIBA? SIBA should be concentrating on doing something concerning the laws that they have already messed up such as laws on the mutual funds and the securities industry (hey where's that stock market that was supposed to be up and running 3 years ago?) instead of messing up other areas of the law that are none of their concern.

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.

Proposed Trust Bill 2011 Finally Made Public

Since last Tuesday, February 15, SIBA had caused advertisements on television and on the Nation stating that the proposed Trusts Bill 2011 could be downloaded from their website and that the public should comment on this bill by the 25th February 2011. Once again, the adverts direct that comments should be directed to the Ministry of Finance's policy and strategy division at dgpol@finance.gov.sc

While everyone was busy scrutinizing the proposed companies bill 2011, SIBA sneaked in the proposed Trusts Bill 2011 sometime late on Friday, February 18. This Trusts Bill 2011 is incompatible with the laws of Seychelles. It ignores established laws on legal and beneficial ownership of Seychelles properties. It allows property in Seychelles to be held in trust and although it seeks to prevent immovable property (land) from being held on trust, their are obvious loopholes allowing for Seychelles immovable property to be held on trust.

Potentially, it can lead to schemes being devised so that non-Seychellois may become beneficial owners of Seychelles immovable property without having to go through the sanction application process (non-Seychellois must obtain Government permission to own land in Seychelles) and pay sanction application fees (1.5% the market value of the immovable property) and sanction fees (up to 30% the market value of the immovable property), it will this deprive the Government of much needed income. Already it is well known that there are land transactions that flout our immovable property foreign ownership laws.

This bill, if passed, would also create uncertainty when it comes to purchasing land in Seychelles and may increase the risk involved where a foreigner seeks to purchase property from one of the numerous integrated resort schemes, the risk would be particularly higher for second purchasers. It would also increase risk with regards to the purchase and/or pledge of shares, something that will concern multi-national transactions involving IBC's.

The introduction of the constructive trust concept to local property will also have wide ranging negative consequences and could lead to property disputes emanating amongst co-habitants.

Once again, SIBA wishes to push forward with legislation that will only cause more problems instead of solving any. This Trusts Bill and the Companies Bill have not been drafted by the Government's drafting division in the Attorney General's Chambers and the Attorney General's Chambers has had no input into it.

This Trusts Bill goes against the very fabric of our civil law. Once again its proponents appear to be unappreciative of Seychelles civil law. And just like with the proposed Companies Bill, there has been no consultations with the public on the policies behind this Trusts Bill.

The word from the grapevine is that those in very high places are getting fed up with the nonsense from the people of SIBA and its "friends". Those with the real power are realizing that SIBA's only success has been the incorporation of IBC's (essentially clerical work), introduced in the mid-90's in conjunction with SIBA's inception. Since then, SIBA, despite being well funded, has failed miserably to successfully break into any other industry. International Trusts and Foundations have not proven to be as successful as the IBC and SIBA has failed completely in launching the mutual funds and securities industry. Employment opportunities for our legal and business graduates are being stifled. Many are stating that the success with IBC's was even more of a 'lazare' than Lazare Picault's landing on Mahe.

We need individuals in SIBA who know our legal environment, who appreciate its subtleties, who can garner the respect of our legal profession and most importantly, who can actually do something more than just incorporating IBC's. With the real right people in SIBA, Seychelles could go far as a financial centre. We don't need to wait for oil to be prosperous.

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.

Lawyers Condemn Proposed Companies Bill 2011

The past few days have seen a flurry of correspondence amongst those in the legal profession. The consensus is that the proposed Companies Bill 2011, accessible from the SIBA website, is ill thought of and should go no further.

Corporate law heavyweights such as Conrad Lablache and  Kieran Shah, SC have publicly denounced the bill in its present form. In light of the distaste for the bill amongst the legal professionals, Attorney General Ronny Govinden has suggested to the members of the bar that perhaps consultations should be held and recommendations brought to the Government's attention.

Lawyers argue that although there may be a need to revise certain aspects of Seychelles' companies legislation, the bill fails to address this. The bill also goes beyond its mandate and seeks to alter other areas of the law. The bill's proponents also appear to lack an appreciation and understanding of Seychelles' civil law and if enacted in its present form, it will create a myriad of problems.

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.

Proposal for Companies Act 2011 put to the public

SIBA has called on the public to comment on a new companies act that seeks to reform and modernize Seychelles' companies legislation. The public has until the 25th February 2011 to provide its feedback. The proposed bill seeks to unify all of the various companies legislation into one comprehensive act.

The white paper and the proposed bill can be downloaded from the SIBA website through the following link http://www.siba.net/index.php?s=downloads.

Comments should be forwarded to the Ministry of Finance at dgpol@finance.gov.sc

A brief perusal of the bill reveals that it seeks to do away with the proprietary limited company, this despite the fact that the vast majority of Seychelles companies are proprietary limited companies. Proprietary limited companies, are companies formed by small groups of individuals, usually within a family circle or close network of friends, it gives the shareholders of these companies certain statutory protections, ensuring that the ownership and control of such companies stay within the family circle or close network of friends. The proposed bill, if passed, will remove all of these statutory protections. And although these may be catered for by amending such a companies' constitutional documents, it will require positive action from the shareholders of such companies to make such changes. Lots of problems will be caused to shareholders of proprietary companies if the proposed bill is passed as is.

Another significant change is that the proposed bill seeks to do away with the Registrar General's role as the Registrar of Companies and transfer that role to SIBA, or a successor organization to SIBA. The Registrar General maintains the register of ordinary companies in addition to the land register and other official registers (business names, register of deeds), located at Kignsgate House, it is a one-stop shop for inquiring into virtually all official local registers. SIBA is presently the Registrar of International Business Companies (IBC's), which is a company that is registered in Seychelles but is not allowed to engage in business in Seychelles (barring certain administrative functions), the IBC is used for wealth management purposes and as a part of complex holding structures. To transfer the ordinary companies registry functions to SIBA would cause several practical difficulties. If one wanted to ascertain if an ordinary company is in good standing and if it owns land or whether it owns certain business names, one will then have to deal with 2 separate registries to obtain such information. It's like having the hospital at Mont Fleuri and transferring the pharmacy to Roche Caiman. Bravo!

The Mutual and Hedge Fund Act 2008 was a failure. The Securities Act 2007 is also a failure. Both were being touted as brilliant pieces of legislation by SIBA. Both have failed to garner any significant business in Seychelles. Both led to our Members of National Assembly wasting their time and energy to raise their hands to pass it as legislation. But at least that was the limit of the damage it caused. The proposed bill, if passed, will have even more negative consequences. It also encroaches into areas that are the preserve of the Civil Code of Seychelles (laws on pledges, incapacity etc), which shows a lack of appreciation of Seychelles law from the bill's drafters and proponents.

The vast majority of the members of the Bar Association of Seychelles are against the proposed companies bill and virtually all of the older lawyers think that it is an abomination. The bill presents itself as a modern reform to our laws but actually creates more problems instead of solving any. The vast majority of SAOPRA (the association of corporate service providers, who deal in IBC registration and administration amongst other things) also think that the proposed bill is ill-conceived.

In an advert on the Nation of Tuesday, 15th February, SIBA also advertised that comments on a proposed Trust Bill 2011 and Corporate Service Providers Bill 2011 would also be welcomed from the public and that all of these bills are available from their website. But at the time of going to press (the Nation), none of these two bills were available for download. Yet, SIBA has placed a deadline of 25th February for the public to comment on these bills. Hey genuises, how can the public comment on the bills when you are not allowing the public access to them? (As of noon, 16/02/2011, the SIBA website is now stating that the two proposed bills "will be uploaded shortly").

The proposed companies bill should be thrown into the bin like the proposed LPA that SIBA was pushing for.

If the Government really wants to reform the company laws, this should be done with the consultation of the main stakeholders of the country. The business community should be engaged with the lawyers, accountants, corporate service providers and the tax authorities, at the very least. Areas needing change should be identified and then proposals for reform suggested. If a new act is needed, then so be it, if only certain amendments to the current laws are required, then let that be the solution. Only then should any draft bill/amendments be made, and even then, it should be drafted by proper qualified legal draftsmen.

These secret drafts in which the public is given only a week or two to comment on is a sham and is disgusting in a supposed democratic society.

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.

The End of the Robing Room as we know It

It truly is a sad day. The robing room as we know it, has come to an end.... well, not this blog, but the actual real robing room located at the Supreme Court of Seychelles, of which this blog derived its title from.

Lawyers would have come back from the Christmas vacations only to discover that the real robing room has been blocked off and all of the wooden lockers, wigs and gowns have been transferred into a tiny room adjacent to courtroom no. 1. In the transfer process one attorney's wig has gone missing and another one was found after a week missing in action. The real robing room is now a tiny little room that can be best described as a store room. The room is so small that only 3 lawyers can fit in it at any one time to robe up. Gone are the tables and chairs, all that is left are the lockers, a mirror and an air conditioner that appears to be on but doesn't seem to be working.

Around 15 years ago, the robing room had tables, chairs and was even properly air conditioned. It was located next to court room no. 2, with a one-way mirror, allowing those inside the room a peek at those waiting outside courtroom numbers 1 and 2. Over time the air conditioner was removed, a corridor was made to go through the real robing room which shrank the room. But it still had the tables and chairs and was a room which encouraged social interaction between the attorneys. It was a room where lawyers could obtain a second opinion on a legal conundrum or even a ruling or judgment. It was a room where State Counsel could be found giving private tuition to their witnesses (ahem!), where lawyers could sit down and explain legal processes to their clients in a more private setting. It was a room where all the new State Counsel and pupil attorneys could hang out to meet and introduce themselves to all of the other court advocates.

More and more lawyers enter the profession and yet the judiciary decides to shrink instead of enlarge the robing room. There are currently just over 40 attorneys, around 10 State Counsel and about 5 pupil attorneys. The numbers are expected to rise with about 15 Seychellois currently in the advanced stages of their legal education and about 30 currently enrolled through the University of Seychelles in their first year of the LLB programme.

The tagline to this blog will have to be changed. For historical purposes, it is reproduced below: 

"The Supreme Court of Seychelles has a room where most of the lawyers keep their wigs and gowns and where they change into them. It is also where all the latest news and gossip are shared... "

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.

Judge Gaswaga sworn in for a second term

Judge Duncan Gaswaga was sworn in for a second term as a Puisne Judge of the Supreme Court of Seychelles yesterday, on the 10th day of January 2011. The Nation has a front page article on the matter which you may read by clicking here.

According to news reports, Judge Gaswaga was sworn in for a second term of only 2 year duration. According to the Constitution, terms can be up to 7 years in duration, however, in practice, the Government appoints Judges on 5 year terms.

According to the news reports, the exceptional circumstances which merits Judge Gaswaga's re-appointment is that he is a "good judge" and that there is a the great number of partly heard cases before him. It goes on to state that these cases would have to be re-started if Judge Gaswaga was not re-appointed. This is a fallacy. According to section 132(3) of the Constitution, a judge may stay on as one in order to complete the cases before him. There was therefore no need to re-appoint Judge Gaswaga if that was the case. News reports also noted that Judge Gaswaga is the head of the criminal division of the Supreme Court, a division that comprises of only 1 or 2 other judges. Furthermore, apparent merit was given to the notion that he contributed greatly to the reform in the Seychelles criminal justice system. Interestingly, no mention is made of the alleged reforms that were made. In the meantime, back on planet Earth, Indian Ocean, Seychelles, it is common knowledge that the criminal justice system is in tatters.

The local courts have never ruled on the meaning of "exceptional circumstances", but if we are to take the meaning given by the press, who would have gathered the same either from the judiciary or the Constitutional Appointments Authority, then, being a "good judge" and having a case in front of you qualifies as "exceptional circumstances". What does "good judge" mean? And surely every single Supreme Court Judge has at least one partly heard case in his calendar. Therefore, every single foreign judge would qualify for re-appointment under this test of "exceptional circumstances".

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.

The Appointment and Re-Appointment of Judges of the Supreme Court

Tensions seems to be bubbling just under the surface as talk is rife that Ugandan national, Judge Duncan Gaswaga, whose 5 year term as a Supreme Court of Seychelles Judge is coming to its end, shall be re-appointed for a second term. The vast majority of lawyers in the country are against such a re-appointment, especially since there are qualified and able Seychellois more than ready to assume positions in the judiciary.

Rumours are circulating that if Judge Duncan Gaswaga were so re-appointed, then the Bar Association of Seychelles ("BAS") will challenge such a re-appointment before the Constitutional Court of Seychelles.

The law is quite clear when it comes to the appointment of Supreme Court Judges, section 126(1) of the Constitution of the Republic of Seychelles states:

"A person is qualified for appointment as a Judge if -

(a) the person has been entitled to practice before a court of unlimited original jurisdiction for not less than seven years; and

(b) in the opinion of the Constitutional Appointments Authority the person has shown outstanding distinction in the practice of law and can effectively, competently and impartially discharge the functions of the office of a Judge under this Constitution."

Schedule 2 of the Constitution, entitled "Principles of Interpretation", also defines the word court to mean "a court of competent jurisdiction established by or under the authority of this Constitution." Which means that in order to be a Supreme Court Judge in the first place, you must have been entitled to practice law before a Seychelles court of unlimited original jurisdiction.

5 years ago, in January 2006, when Mr Duncan Gaswaga was appointed as a Supreme Court Judge after serving as a Magistrate and then as a Senior Magistrate (for less than 7 years in total), BAS filed a petition before the Constitutional Court of Seychelles to challenge the appointment on the very simple grounds that Gaswaga did not fulfill either of the two pre-requisites set down in section 126(1) of the Constitution as set out above. BAS later withdrew the petition only because, as heard through the grapevine, it was understood that Judge Gaswaga would not seek for re-appointment and that he would not, at the very least, seek to become a Seychellois national whilst he was a Judge of the Supreme Court.

5 years on, and it appears as though that the understanding is on the verge of being broken, as the word in the dark narrow street is that Judge Gaswaga is up for re-appointment shortly. This despite the law regarding the re-appointments of non-Seychellois in the Judiciary, which states that the re-appointment of a person who is not a citizen of Seychelles can only be done in "exceptional circumstances" (section 131(4) of the Constitution). What these exceptional circumstances are, are beyond the imagination of the Robing Room. Judge Gaswaga has shown himself to be a 'hanging judge', convicting accused persons before him regardless of the evidence put before him. "Guilty until proven Innocent" may be too nice to Judge Gaswaga, the truth is more like "Guilty until your Fair(er) Hearing before the Court of Appeal". His caseload comprises substantially of criminal cases, although he is in fact a judge of the Supreme Court's "Criminal Division", why is it that all of the other Supreme Court judges, even those in the "Criminal Division" are hearing several civil cases? Seychelles' substantive civil law is based on the French Napoleonic civil code and it is not something that one who only has a common law/English law based education is likely to grasp easily. Seychelles attorneys,especially those whose formal legal education is based on the English common law undergo two years of pupillage in Seychelles to grasp not only the Seychelles' French based civil law background, but also the unique mixed law jurisdiction that is the Seychelles legal system. Even then, years of practice is also necessary for one to truly appreciate our unique legal system. Judge Gaswaga's formal education in law is based on the English common law, just like most of the Seychelles lawyers, but unlike the Seychellois lawyers, he never undertook pupillage here, and never practiced here as a lawyer. This may be a key factor why very few civil cases are before his court. And one would think that in appointing a Supreme Court Judge, the authorities should go for someone who at least has good knowledge of and practice in both criminal and civil law matters.

"Exceptional circumstances" also means circumstances extraneous to the Judge. The Constitutional Appointments Authority must look at whether there are others who may be appointed as Supreme Court Judges. And there are a handful of lawyers, with years of experience who are not only more than qualified to take up a post as a Supreme Court Judge, but who are also willing to do so. And it is common knowledge amongst the legal community that the Constitutional Appointments Authority has received applications from these willing lawyers. One then has to wonder what these "exceptional circumstances" are to re-appoint Judge Gaswaga.

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.