SNP's Reaction to the Court of Appeals Decision on the PDM Case

DECISION OF COURT OF APPEAL IN PDM CASE REWRITES THE CONSTITUTION

The decision of the Court of Appeal in the case of the Popular Democratic Movement is devoid of legal justification and totally ignores the key provisions of the Constitution regarding the matter of the case. In this decision, the Judges of the Court of Appeal, JJ Macgregor, Twomey and Fernando, have not interpreted the Constitution as it exists, they have written their own. These Judges have decided that the wording of the Constitutional amendment is not suitable and they have made their own amendment. 


   
James Michel with Twomey

McGregor, James Michel and Fernando

In its decision, delivered on December 9, 2011, the Court of Appeal found that the PDM was entitled to a proportionally elected seat in the National Assembly from the result of the general election held on October 1, 2011 because it had obtained over 10% of ‘valid votes’. It thus reversed the majority decision of the Constitutional Court given by CJ Egonda-Ntende and J Gaswaga and of the Seychelles Electoral Commission that the Constitution allocates proportionally elected seats on the basis of total ‘votes cast’ . The decisions of these institutions could have been overturned only with clear Constitutional basis which the Court of Appeal has not been able to provide.
  
Chief Justice Egonda-Ntende (his sound judgement overturned)

The Constitution makes very clear and specific distinction between the allocation of seats to directly elected members and to proportionally elected members. 

Article 78 of the Constitution states without ambiguity that the allocation of proportionally elected seats shall be as “specified in schedule 4”. 

This Schedule 4 carries the clear tile “Proportionally Elected Members” and deals only with such members. Thus the Constitution clearly sets different rules for the allocation of these seats. The Judges of the Court of Appeal have no basis for saying that the two must be the same.

This Schedule 4 contains the provision that has been quoted so often and which was the basis of the Judgement of JJ Egonda-Ntende and Gaswaga of the Constitutional Court.

“A political party which has nominated one or more candidates in a general election and has polled in respect of the candidates in aggregates 10% or more of the votes cast at the election may nominate a proportionally elected member for each 10% of the vote polled. “

As the two judges of the Constitutional Court stated in their decision, the Constitution has in several instances used the terms ‘votes cast’ and ‘valid votes’ and it is clear that there are two different meanings. ‘Votes cast’ as stated in Schedule 4 is different from ‘valid votes’. 


  
Votes cast means a ballot paper inserted inside the box!

Votes cast can only mean votes that are put in the box. As CJ Egonda-Ntende stated, this is the only possible interpretation. The action of casting the vote comes before any interpretation of the vote as being valid or not. If a vote is invalid, it does not alter the fact that it has been cast.

CAJ Fernando’s statement argues that the Constitution could not have intended to recognise that a person would not vote or would cast an invalid vote. But this is precisely what Schedule 4 does. 



Someone should tell Fernando that a vote cast is the "voice of the voter".

The principle of using total ‘votes cast’ may be misguided. If this is so, then we have to go back and change the Constitution. The Judges have no right to ignore what the Constitution says. 




The Judges of the Court of Appeal have fallen back, as Judge Burhan did in the Constitutional Court Case, on the Elections Act, which prescribes a different method of tallying the votes. But it is very clear that the Elections Act does not apply to Proportionally Elected Seats. 

This is how the Elections Act begins:

Short title and Application 1. (1) This Act may be cited as the Elections Act.

(2) This Act shall apply for the purposes of: -

(a) an election of the President

(b) an election of a directly elected member of the National Assembly

(c) a referendum.

The Act does not include ‘Proportionally Elected Members’ in its stated purpose and makes no mention of proportionally elected seats. In seeking to rest their judgement on it, the Judges are grasping thin air. 

The decision of the Court of Appeal, being so weak in legal justification, undermines the credibility of the Judiciary as the guardian of the Constitution and the law. The decision has grave consequences for our democratic system because it allows the composition of a National Assembly that is not according to the Constitution and by that sets aside the wishes of the electorate. 

The Court of Appeal has, in this ill-considered decision, diminished the credibility of the Constitutional Court, of Chief Justice Egenda-Ntende and of the Seychelles Electoral Commission. 

Seychelles National Party