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.

Book on Seychelles Court of Appeal Judgments Published

The Bar Association of Seychelles, on their website, has welcomed the publication of the latest book on Seychelles law - "Leading Cases of Seychelles 1988 - 2010". The publication of the book was the initiative of Professor Angelo of Victoria University of Wellington, New Zealand. Professor Angelo is no stranger to the Seychelles legal scene, he co-authored one of the most popular books on Seychelles case law - "The Law of Seychelles Through the Cases", more commonly referred to in the Seychelles legal community simply as the "Venchard" book, it was a compilation of selected judgments from the Seychelles superior courts from 1936 to 1996. The latest book also has a foreword written by the President of the Court of Appeal, Justice MacGregor, who traces the history of Seychelles case law books.

This latest book is a compilation of summaries of selected decisions of the Seychelles Court of Appeal from 1988 to 2010. It does not contain the actual judgments and it does not pretend to do so. But the summaries of the facts and principles of some of the cases therein are not presented accurately. Court users and students of Seychelles law must use this latest book with care.

Nevertheless, publications on Seychelles law are always a welcome thing given the lack materials on the matter. The website of the Bar Association of Seychelles has a Law Journals page in which materials on Seychelles law are made available to the public. Presently, the Law Journal only has a handful of articles but it boasts of articles from the much revered Andre Sauzier and Philippe Boulle.

  

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.

Derjacques Re-Elected as Chairman of the Bar Association of Seychelles

The Bar Association of Seychelles ("BAS") held its 2010 Annual General Meeting ("AGM") earlier today (6th October 2010) at the Supreme Court Building.

Members of BAS displayed their support for the previous year's Management Committee by re-electing several of its officers. Below is the list of the newly elected Management Committee of BAS:

Chairman: Mr Antony Derjacques

Secretary: Mr Divino Sabino

Treasurer: Miss Teresa Micock

Executive Officers: Mr Frank Ally & Mr Elvis Chetty

The Chairman expressed his delight in being able to hold true to the key issues that his committee promised to undertake in the previous year, such as the setting up of the BAS website and the holding of the BAS "Annual" Dinner (in December 2009) for the first time since 2005, a dinner which saw an excellent turnout from members of the private bar and judiciary. For the coming year, the new Management Committee has been mandated, inter alia, to draft and circulate a Code of Ethics for lawyers and to forge working relationships with more local and international organizations.

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.

2010 Re-Opening of the Supreme Court

The Re-Opening of the Supreme Court took place this morning. The event marks the end of the Supreme Court vacations, which lasts from the entire month of August until today. During the vacations, only criminal matters and civil cases of an urgent nature are heard.

As is customary, the ceremony starts with a church service, this year this took place at the Cathedral of the Immaculate Conception. The theme of the church service was that the Judiciary is a servant of the people. Thereafter the judges, magistrates, court officers, attorneys, other court advocates and staff proceed to the Supreme Court premises in conjunction with the National Brass Band. At the Supreme Court, as is customary, the Chief Justice then delivers an address to mark the occasion.

To start off his address, Chief Justice Egonda-Ntende stated that the problems with the judiciary were far worse than what he had thought when he made his address a year ago, back then, he had been the Chief Justice for only 3 weeks. Although he insinuated that the problems with the judiciary will require more time to be dealt with, he stated that things are improving. In particular, after reciting a handful of statistics on cases being disposed of, he remarked that in the past year, far more cases were being disposed of compared to the previous years. However, he stated that there is still a backlog of cases dating from the year 2000 and that this was unacceptable. He stressed that judges will prioritize older cases and partially heard cases in order to deal with this. He also mentioned that the hearing of cases should take place in consecutive days until disposed of, and if not possible, then they should be adjourned to a date not too far in the future. He also mentioned that judges will reserve a particular half-day from their weekly schedules to deal with motions, petitions, interlocutory matters not expected to last more than half an hour each. This will free up the court's time to deal with the hearings/trials as scheduled.

As part of his continuing reforms, he mentioned that new sets of audio recording equipment were brought in to the Supreme Court late in 2009 and that the new equipment has been functional since March 2010. And that this has helped improve the speed in which transcripts can be typed and produced in written form to the public.

He also mentioned that he expects the construction work on the new Supreme Court Building at Ile du Port, sponsored by the Chinese Government, which will house the Seychelles Court of Appeal and Supreme Court, to commence shortly. Mention was also made of the construction of 4 more court rooms in the current vicinity of the Supreme Court. He also mentioned that new Magistrates would have to be sourced from abroad given that there appears to be a lack of interest from the local attorneys, and that it will take at least 7 years before the University of Seychelles can produce a Magistrate (3 year law degree, 1 year for the bar exams, 2 years pupillage and there is a policy that Magistrates should have at least 1 year of practice as an attorney). He stated that he expects to double the number of Magistrates from 4 to 8 within the next 2 years. With regards to the jurisdiction of the Magistrates' Courts, he mentioned that the law will have to be amended to increase the monetary jurisdiction of the Magistrates. Currently, Magistrates may entertain claims up to SR 25,000 (around USD 2,000) in value. Above that and claims must be filed before the Supreme Court, even the most simplest and basic debt cases. The Chief Justice proposed that Magistrates be able to hear claims of up to SR 250,000 (around USD 20,000) and that Senior Magistrates hear claims of up to SR 350,000 (about USD 30,000) in value. This will alleviate the workload of the Supreme Court.

Mention was made of the creation of a High Level Committee with the judiciary and various stakeholder as a forum for other bodies to be able to communicate their concerns and suggestions directly to the judiciary. The Chief Justice also stated that he has had several meetings with the Bar Association and that he shall continue to consult with members of the legal profession.

The Chief Justice also stated that several laws were made in a bygone era and need to be revised. He mentioned that the Civil Procedure Code will have to be revised. He also mentioned that decisions of the superior courts are now available online and that a volume of law reports from 1991 to 1996 will be published shortly. He mentioned that another volume for cases from 1997 to 2010 is in the works.

The Chief Justice also mentioned the setting of time standards for the disposal of cases. Standards that the judges will seek to enforce. For example, he mentioned that civil cases must be disposed of within 24 months from the date of filing, and the criminal cases must be disposed of within 12 months from the date of filing. Shorter time frames were given for interlocutory motions and petitions for judicial review. 

Thereafter those present were invited to refreshments. Many in the profession agreed that the rate of cases being disposed of has improved tremendously, but it will take a while longer to clear the massive backlog. Many believe that Chief Justice Egonda-Ntende is on the right track. But there was concern on the separating of the physical locations of the Magistrates Courts from the Supreme Courts and whether by increasing the monetary jurisdiction of the Magistrates to such a high amount, this would eventually clog up the Magistrates' Courts.

At the start of his address the Chief Justice made an analogy that if the judiciary had been a medical patient, that in the past year, under his stewardship, it had survived from the Intensive Care Unit. Of course, this does not mean that it has been released from the ICU. 

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.

Shortage of Legal Professionals?

A Tanzanian online news website - The Citizen, has reported that the Seychelles Judiciary intends to source for judges and lawyers from Tanzania. The article may be read by clicking here.

The article states that Seychelles intends to bring in Tanzanian legal personnel to help in its fight against piracy. The article quotes Seychelles Chief Justice Egonda-Ntende as stating that Seychelles needs more judges. However, the source for the need for more lawyers is not stated.

Recently, the Nation advertised vacancies for two Magistrates. The Robing Room has also learned that several attorneys have been approached for these posts but most, if not all, have not shown serious interest. Although the salary of Magistrates have become more competitive, their work schedule is hectic and they do not have much of the perks that most, if not all judges and justices are allowed e.g. car and chauffeur, apparent unlimited fuel allowance, security personnel. Some attorneys are also concerned that there is no guarantee of any career progression were they to accept a post of a Magistrate. It has been noted that the very best Magistrates, especially those that show independence from the executive, are never elevated to the Supreme Court or Court of Appeal.

With regards to lawyers, there are strict rules prescribed by law on being able to practice in Seychelles. Apart from three very particular circumstances (the ad hoc court advocate, the State Counsel/Public Prosecutor and the distasteful international business legal advisor), one will have to possess the necessary qualifications and undergo a two year pupillage at an approved law chamber in order to qualify as an attorney-at-law and practice law in Seychelles. There can be no short-cuts on the law when it comes to qualifying. No other country allows it. And it would be another poorly planned venture of the Government if they sought to change the law to allow foreigners to qualify more easily (or even automatically) as Seychelles attorneys and then simultaneously invest into the University of Seychelles to train tomorrow's attorneys, magistrates and judges, and the Robing Room has learned that there will be about 30 students enrolling into the University of Seychelles' law degree programme (in fact it is the University of London External LLB programme), which is to commence this October. Yep, let's train a large number of lawyers, take up at least 4 years of their lives doing so, and then there'll be no work for them later thanks to all these foreigners.

And some wonder why xenophobia is in the air...

Luckily, the last time an elite few tried to change the law on qualifying as a Seychelles attorney, making it even easier for foreigners rather than Seychellois to qualify as Seychelles attorneys, the Bar Association of Seychelles and certain powers in the Government put a stop to such nonsense.

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.