IN THE SEYCHELLES COURT OF APPEAL

 

[Coram: F. MacGregor (PCA), S. Domah (J.A), M. Twomey (J.A), Msoffe J.A]

Constitutional Appeal SCA 04 & 03/2014

(Appeal from Constitutional Court Decision CP 02 & 03/2014)

The Government of Seychelles The Attorney-General			1st Appellant 2nd Appellant
	Versus
The Seychelles National Party The Seselwa United Party The Citizens Democracy Watch ­­­­­­­­­­­­­­			1st Respondent 2nd Respondent 3rd Respondent
Mr James Alix Michel Mr Patrick Herminie Mr Attorney-General The Attorney-General				1st Appellant 2nd Appellant 3rd Appellant 4th Appellant
		Versus
Viral Dhanjee				Respondent

Heard:             02 December 2014

Counsel:          Mr  R. Govinden with Mr Ananth for all Appellants 

                        Mr. A. Derjacques and Mrs. A.G. Amesbury for Respondents

                 

 

JUDGMENT

 

S. Domah (J.A)

[2]   Even if the facts differ slightly in both appeals, the core question is one and the same: the recusal of Burhan J on the ground that since he had been granted citizenship by the President and re-appointed as a Judge, he will not be seen to be impartial in the two cases before the Constitutional Court where parts of the controversial Public Order Act 2013 are being tested for constitutional validity.

THE FACTS

[3]   The out-going Chief Justice had organized a sitting of the Constitutional Court and empanelled a Bench comprising three Judges: Karunakaran, now Ag C.J., Renaud and Burhan JJ. to hear and determine a couple of constitutional law cases. Some time before they were to be heard, we understand from learned counsel for the respondents that either both or one of them privately visited Burhan J. in Chambers first and invited him to recuse himself. The ground was that the President’s granting the learned judge Seychellois citizenship, followed by his re-appointment to a judicial office at the Supreme Court made the petitioner/s (now respondent/s) in the case apprehend that Burhan J. would be biased in favour of the President who was a party in the case. They had apprehensions regarding the impartiality and independence of, not the Bench as such, but only of Burhan J.

In proceeding informally first, learned counsels took the correct initiative but adopted the incorrect approach. We shall state why. 

[4]   There is no written procedure or guideline which a Judge should resort to when he faces a recusal request of the sort, even if the law is well known to him. 

[5]   In the absence of any book rule, Burhan J. took time to consider. He took his decision not to recuse. He then decided to write a motivated Ruling stating his reasons. To him, the “mere possible appearance of pre-judgment or bias is insufficient, there should be a reasonable apprehension or real possibility of bias.” To remove himself from the case would be tantamount to his abdication of his high responsibility of doing justice without fear, favour or ill-will; there was no substance in the application.

In so doing, the learned judge took the correct view but the incorrect action.  We shall state why.

[6]   In the light of the refusal of learned Judge to recuse from hearing the cases, learned counsel made a formal motion before the three judges. They all sat to hear the arguments, to receive the submissions with supporting authorities. At the end of the hearing, the two judges produced a majority Ruling deciding that Burhan J. should recuse himself. They made an order that he should not sit. And they directed him not to. 

In so doing, the Court afforded the parties the right law but throwing overboard all the fundamentals on which the court system rests. We shall state why. 

APPELLANTS’ SUBMISSION

[7]   The Attorney General, aggrieved by the outcome has appealed.

[8]   His grounds are that: (a) the two learned judges took extraneous matters into consideration in arriving at their conclusion; (b) there is a lack of concrete foundation from which to come to a finding of bias against the learned judge; (c) the order issued is constitutionally wrong and procedurally improper;  (d) the two judges had no implicit or explicit power to do as they did; (e) recusal is a personal decision of the individual judge in question and may not become the business of the other members on the Bench; (f) the process adopted undermined the authority of the Chief Justice who had formed the Bench; (g) the request having been made to Burhan J. and relief sought from him specifically, the two judges had no competence to enter into the arena and grant a constitutional relief which had not been asked of them; (h) the two judges could not of themselves form a quorum as a constitutional court, ousting Burhan J. of his right to sit as a Judge; (i) impartiality and neutrality are to be presumed and, in this case, there was no evidence led by the applicants to rebut that presumption; (j) the two judges should have treated Burhan J. as of equal status as either of them; (k) there was no nexus of time and issue between the grant of citizenship and appointment of Burhan J., on the one hand, and the constitutionality of the Public Order Act as such; (l) the decision reached by the two Judges is ultra petita and the two Judges failed to construe the real motive behind the application; (m) the majority ruling creates an incorrect judicial precedent and may become a tool for litigants to destabilize the Judiciary. The appellant moved for the annulment of the majority ruling.

[9]   On account of the nature of the order that will follow, we shall avoid delving into the factual grounds and limit ourselves to the strictly legal, judicial and institutional. There is something to be said for the course which – in all good faith – has been adopted by the three judges together. The Bench ended up in friendly fires, assuming and exercising powers and jurisdictions and making orders which can only be qualified as uncanny.

RESPONDENTS’ SUBMISSION

[10]   Learned counsel for the respondents resist the appeal and support the majority ruling in favour of the recusal. Mr Derjaques submits that the Court correctly applied the principles of law to the facts of the case and considered the relevant authorities; that the Constitutional Court in Seychelles did exactly what the English Court had done in the Pinochet II case [see R v Bow Street Stipendiary Magistrate, ex parte Pinochet Ugarte (no. 2) 2 W.L.R. 272 (H.L. 1999) when they decided that Lord Hoffmann should have disqualified himself from sitting in the case; that recusal is a matter for the single judge but disqualification is a matter for the whole Bench; that the administrative power of the Chief Justice is overridden by the Court’s powers and that the Ag Chief Justice may have exercised both his administrative and judicial function in deciding as he did; that the Court was seized to decide the matter because the one-to-one meeting with Burhan J. had produced a negative result; that, competence-wise, the Constitutional Court is a two-Bench Court so that the issue of its incompetence does not arise; that the test they applied on the relevant facts is the objective test of reasonable apprehension of bias; that the majority decision should prevail over the minority decision of a 3-Judge Bench, the quorum of which cannot be challenged; that there was a proximity of time on the facts between the granting of citizenship to the judge, his re-appointment and the  filing of the petition to raise an apprehension in the mind of a fair-minded and informed applicant that the learned judge’s impartiality was in issue; that the Court had power to “police” itself and disqualify a member in public interest and importance.

[11]   Learned counsel is correct in his submission of the test that was to be applied to the situation and the concerns of ensuring an impartial and independent Bench. However, it is attributing powers which a Court does not have. A Court derives its powers from the Constitution which gives it authority to ensure that its authority is duly recognized. It also has inherent powers consonant with its functions. But it does not have self-policing powers to deny a fellow member of a Bench his right to function as a judge in any given case whether in public interest or otherwise. The source of that authority is unknown. The proposition is perillous.

[12]   Mrs Amesbury, for her part, submitted that the majority ruling could not be taken to be the ruling of two judges but that of the Constitutional Court; that the Hon. President is the Respondent in the case as well as in two other cases filed against Burhan J.; that the acquisition of the Seychellois citizenship and the subsequent re-appointment is mentioned as back-ground information for the purposes of determining the issue of bias in this case; that the Judge was closely connected with the party to the proceedings in that the President of the Republic is a  Respondent in the case and it is he who gave the citizenship to and re-appointed the Judge in question; that they are all concerned with the construction of a judiciary that is robust and credible and the development of a predictable jurisprudence on the matter in the light of the several cases that have been brought to court on the matter of judicial appointments.

[13]   A number of cases were referred to us by Mrs Amesbury: inter alia, R v Bow Street Stipendiary Magistrate, ex parte Pinochet Ugarte (no. 2) 2 W.L.R. 272 (H.L. 1999), citing Lord Goff of Chievelly, Lord Hutton; President of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147, [1999] ZACC 9, 1999 (7) BCLR 725; BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers’ Union and Another 1992 (3) SA 673; S v. Mutizwa [2006] ZWBHC 4; SACCAWU v Irwin & Johnson 2000 (3) SA 705 (CC); Sager v Smith 2001 (3) SA 1004 (SCA); [2000] 2 WLR 870; Locabail (UK) Ltd v Bayfield Properties  [2000] 2 WLR 870; Porter v Magill [2002] AC 357; Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781; Lesage v Mauritius Commercial Bank Ltd [2012] UKPC 41; AWG v Morrison [2006] 1 WLR 1163; Gaetsaloe v Debswana Diamond Co. Pty Ltd [2010] 3 BLR 550 CA; President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147.  Rzeena Moolla v Director of Public Prosecutions and Others Case No. 30653/2010.

[14]   Learned Counsel constitutional concerns and references from foreign jurisdictions are  appreciated. But we cannot delve into the facts, as we said, at this stage, concerned as we are with the proper procedure. The materials will come in handy at the right time. Learned counsel’s  address to us has been particular sober. We agree with her, as we agree with the others, that some guidance in the matter would have gone a long way towards resolving  this case at the very initial stages at negligible cost of time, expense and judge power, with all the required dignity and decorum.

OUR CONSIDERATION OF THE APPEAL

[15]   It would really serve no purpose to rehearse the law on recusal. The submissions and references of all three Counsel, the 2-page ruling of the Burhan J. as applicable to the facts in issue; the 18-page ruling of Karunakaran Ag C.J. and Renaud J show that the problem is not with what the law as is but the law as applied. There is no suggestion that the Judges got their law wrong. But there is an agreement that it was the best that could be obtained in the absence of a formal procedure to decide such applications. We agree, had there been something in black and white, there would not have been a serial tripping in the system.

But before we come to the procedure, a comment on the state of our law in the area would be apposite. 

THE LAW

[16]   This area of the law is becoming particularly dynamic world-wide, concerned as jurisdictions are with the consolidation of their democracies. Stephen Sedley, former Lord Justice of Appeal of England, who has made a profound study of this sensitive area has commented that: “(I)n countries where judges are appointed and not elected, the road has not turned out to be a highway to hell; neither, however, is it a yellow brick road to contentment.”  Putting judges to the test of fire is not a phenomenon occurring only in Seychelles. It reflects on the importance the community, in this age, has started attaching to the Judiciary as being the guardian of their constitutional rights against any possible, actual, perceived or apprehended abuses of executive or political power. It also puts all the three Arms of government on their toes for keeping within the bounds of the Constitution. It protects the Legislature, the Executive and the Judiciary above all against themselves first before it protects them against others so that they act according to the principles enunciated in the Latimer House Guidelines of good governance. A chacun son métier et les vaches seront bien gardées.

[17]   In our jurisdiction, the sensitivity is manifold. We are a small nation state of about 90, 000 souls. Our Constitutional structure has not provided for an apolitical head such as The Queen in the United Kingdom, the President in India or Mauritius as the guardian of the Constitution. In the absence of an apolitical office to oversee the work of the political office, an aggrieved citizen is left to trust either the political office or turn to the Judiciary for the vindication of his constitutional rights.

[18]   The Judiciary, the Judges, their appointments, their benefits are under constant scrutiny before the Courts for long. Burhan J, has listed them. The burden, therefore, on our Judges are greater than anywhere else. It is our understanding that our Judges understand their responsibility and are happy to submit themselves to the tests on their impartiality and independence on all fronts: the disqualification bias, the actual bias, the perceived bias, the behavioural bias, the conscious bias and the unconscious bias.

[19]   But it is also the responsibility of those who are desirous of giving those tests to ensure that they are not given except where it is strictly necessary and for no other reason than legal and constitutional. If there is a cry of wolf in every single case, the Judiciary will not be protected when the real wolf appears.

[20]   It is also the responsibility of the citizen to trust that their political system is constructed on the basis of Separation of Powers: that their Judiciary is independent; that their Judges take an oath of office to decide their cases impartially, without favour or ill-will; that they apply principles of law; that they have an open justice system with a public hearing; that the judgments are given with written reasons and the professions are trained to check the weaknesses and the strengths in the decisions given and also that the Judges are trained to detect the weaknesses and the strengths of the arguments advanced before them; that the judgments and their reasoning are kept for even posterity to judge the judges.

[21]   Be that as it may, the fact remains that it is not enough for a judge to be a diamond. He or she should be a refined diamond. This the Judges understand.

[22]   What is the touchstone used for the Judge to pass the test of a refined diamond? Speaking only for the quality of his impartiality and independence, very little would be served if we in Seychelles started re-inventing the wheel. Considering the source of the legal system we have borrowed, the democratic structure of our political system and our Constitution, it would make sense to adopt the English test formulated in Magill v Porter [2002] 2 AC 357. In this case, the House of Lords rang out the old to ring in the new. The old one was the Gough test: that is whether, having regard to all the relevant circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard, or have regarded, with favour or disfavour, the case of a party to the issue under consideration by him: see [1993] AC 646].

[23]   The new test was formulated by the House of Lords after adding a couple of more elements into the test arrived at by the Court of Appeal in Re Medicaments (No. 2) [2001] 1 WLR 700 which was: “whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

[24]   The new test, therefore, is -

“having ascertained all the circumstances bearing on the suggestion that the Judge was (or could be) biased, the court must itself decide ‘whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.”

[25]   The merit of this new test is that it is standardized for national, supra-national and international usage, so to speak. It is used in leading common law jurisdictions such as England and Wales, Canada, Australia and New Zealand as well as Scotland: see Meerabux v A-G of Belize [2005] 2 AC 513. More importantly, it harmonizes with the requirement for impartiality contained in Article 6 of the European Convention of Civil and Political Rights: see Lawal v Northern Spirit [2003] ICR 856 (HL). In an age where the national rule of law is growing into an international rule of law on such matters, this will assist in the development of a coherent jurisprudence in a matter of universal interest.

[26]   True it is that the new test, despite its general acceptance and usability, has itself been subjected to the test of real life situations in a number of jurisdictions and seen to suffer limitations. The result has been that it has been improved upon on a case to case and jurisdiction to jurisdiction basis. In South Africa, for example, the test has been amplified for practical reasons as follows:

“The question is whether a reasonable objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of Office taken by Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their mind of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse himself or herself of there are reasonable grounds on the part of litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.” [see President of the Republic of South Africa v South African Rugby Union and Others (supra)].

[27]   Further, the number of cases has also enabled those concerned to sort them out in different clusters such as automatic disqualification, presumed bias, actual bias, apparent bias, behavioural bias, conscious and unconscious bias etc.  Lord Sedley, former Lord Justice of Appeal of England, has made a comprehensive study in this area of legal and judicial practice and he expresses his considered views in his article “When Should a Judge not be a Judge:” see Stephen Sedley,  London Review of Books, Vol. 33, No. 1, 6 January 2011, pages 9-12.  He has proposed a system for resolving such issues in a manner which reinforces the integrity of the justice system by obviating the exposure of members of the Bench to friendly fires and self-judging by judges. With this, we come to the procedure.

PROCEDURE AND GUIDELINES

[28]   Very few countries have a written procedure for same. There is an unwritten procedure, the virtues of which may not be underestimated. Had it been followed, the outcome would have inured to the good of everyone. Because it has not been followed, the result has been the cascade of irregularities not consonant with the integrity of the court system.

[29]   We are putting in black and white the Rules below, drawn a lot from the suggestions of Lord Sedley. They have to be used with imagination rather than dogmatically.

Rule 1

Where a party to a case has reasonable grounds to believe that a particular Judge should be spared the embarrassment of sitting in his case on account of a bias, he should so inform his counsel and instruct him to consider making a recusal request to the judge in question.

Rule 2

On receiving such instruction, counsel should satisfy himself that the facts put forward by his client are not frivolous but sufficiently cogent for the purposes of making a recusal request.

Rule 3

On being  so satisfied, he should approach the opposing Counsel to indicate his stand and may seek his views on the matter before taking an informed decision whether or not to proceed with a recusal request.

Rule 4

Where he has decided to proceed with a recusal request, learned Counsel should seek an appointment with the Judge in question, see him in presence of opposing counsel and place before him the facts on which his client relies to seek a recusal.

Rule 5

On being apprised of the facts, the learned Judge should refrain from being his own judge in his case but submit them to the administrative consideration of the Chief Justice, after giving his own view on the facts and their relevance to the recusal request.

Rule 6

It will be for the Chief Justice to decide in his best judgment whether the recusal request should be granted or not. In arriving at his decision, the Chief Justice may or may not invite Counsel who are parties to the case for further information in presence of the learned Judge.

Rule 7

Irrespective of his own view on the matter, the learned Judge should abide by the decision of the Chief Justice, following which a communication should be addressed to both Counsel.

Rule 8

Where the Chief Justice maintains his decision for the same Bench to hear or continue with the matter, and learned counsel is not satisfied with the outcome for any good reason, he should make a formal recusal motion in open court at the next hearing date, with notice to the other party.

Rule 9

On such a motion being made, the Bench assigned the case should not proceed to take any decision on the challenge but refer the matter to the Chief Justice.

Rule 10

On taking cognizance of the formal motion, the Chief Justice shall assign another Judge who is not concerned with the case to hear and determine the recusal motion of the Judge in question.

Rule 11

The procedure and the hearing shall be summary identical with what obtains in a civil suit based on affidavit evidence.

[30]   We have had a look at the Guidelines prepared by the Constitutional Court, The Constitutional Court Recusal Guidelines. Our comments are: 1. that they have been drafted from the view-point of judges rather than that of the Bar; 2. That they underplay the pivotal role that the Chief Justice plays in this area of the administration of justice; and 3. That they propose a panel consultation process that is heavy and constitutes an unnecessary overload on the judiciary. 

REASONS FOR DECISION

[31]   Now for the reasons for which we say the procedure adopted by counsel, Burhan J.  and the two other Judges, respectively was flawed. Learned counsel went astray when she visited the learned judge on her own, in the absence of the opposing counsel. Ethical issues are addressed ethically. The presence of the opposing counsel would have added the necessary judicial decorum to the sensitive request and assisted the Judge in coming to a decision. When a case is in court and counsel needs to see the Judge in Chambers for any reason whatsoever, it is a counsel of professional ethics as well as prudence that the learned Judge be approached by the requesting counsel in the presence of Opposing Counsel.

[32]   Burhan J, for his part, went astray when he decided to be a judge in his own case. True it is that once assigned a case, he is expected to take it. However, once the constitution of the Bench is challenged, it becomes a case for the Chief Justice who assigned the Bench. Burhan J. became a judge and party in his own cause whether he should be a Judge or not in a case.  Whatever view he may have held  on the vindication of his impartiality and independence should have been expressed to the Chief Justice for the latter to take a decision.

[33]   With regard to the Ag Chief Justice and Renaud J., they went astray where they put to trial a member of their own Bench. Each member of a Bench is an independent judge. Two components make a Judge a Judge: impartiality and independence.  They looked at the impartiality component and not at the independence component of the judicial function.

[34]   They did not stop at that. Both the process and the outcome are sadly reflective of an abuse of judicial power for a Judge of a Bench to issue an order against another Judge of the Bench; and to further  direct  that the Judge does what they wanted him to do. That is unheard of.   It is axiomatic that any power, under the rule of law should be exercised legitimately but before the legitimate exercise of that power, the legitimacy of the power itself should be checked. That one Constitutional Court of three judges should suddenly transform itself into a two Bench Constitutional Court is an illegitimate assumption of power.

OUR DECISION

[35]   For the reasons given above, both the minority and the majority rulings were ultra vires the three judges. The present decision does not, in any way, put in doubt their competence at handling this out of the ordinary situation. On the contrary, they have to be appreciated for the dexterity with which they handled a very novel situation. Judging is a highly serious business. The trials and  tribulations as well as the tests and travails of what goes in the responsibility of being a judge is little known. This was the first case where Judges in a case had to decide the very difficult question of when a Judge should not be a Judge along with them. They had the law but not the tool to apply it. And they were all in a desert.

[36]   In the result, we quash both rulings.

[37]   It would be presumptuous on our part to assume the administrative power of the Chief Justice as to the manner in which he should constitute the Bench. That is eminently his  prerogative as Chief Justice. Nor do we want to pre-empt his decisions. This matter and this issue may still come to us eventually on appeal inasmuch we have been seized of the present appeal under our supervisory jurisdiction and there is no final decision yet in the case. Fair trial starts with the fairness of the composition of the court. Bias is not only bias against one party but also bias in favour of one party. As Stephen Sedley comments:

“The risk of bias is not limited to favouritism. There is an equal and opposite risk that a judge, in endeavouring to do favour, will bend over backwards and lose his balance that way.”

[38]   How the Chief Justice will ensure a Bench that is balanced and inspire equanimity to all the parties as well as the competing views on a constitutional matter lies in his best judgment. A Constitutional Court is a very different Court from the others. An issue may arise where representative views are needed for future guidance or action. The composition made by the Chief Justice becomes important for determining whether there was initial balance in the fair determination of the constitutional issue, account taken of the value that the respective parties and the Court attach thereto. It would be unseemly for us to enter into an area which is at this stage of the hearing a matter pre-eminently for the Chief Justice.

[39]   This appeal had all its raison d’être. We make no order as to costs.  

 

S. Domah (J.A)

M. Twomey (JA)

[2]        We are all shaped by social and political influences; our make up as judges poses a fundamental threat to judicial independence, as we as judges find ourselves subject to our past experiences.

[3]        Jerome Frank the psychological judge expressed it thus:

“[T]here can be no fair trial before a judge lacking in impartiality and disinterestedness. If, however, "bias" and "partiality" be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and no one ever will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions; and the process of education, formal and informal, creates attitudes in all men which affect them in judging situations, attitudes which precede reasoning in particular instances and which, therefore, by definition, are pre-judices…

Much harm is done by the myth that, merely by putting on a black robe and taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine. The concealment of the human element in the judicial process allows that element to operate in an exaggerated manner; the sunlight of awareness has an antiseptic effect on prejudices. Freely avowing that he is a human being, the judge can and should, through self-scrutiny, prevent the operation of this class of biases” (Jerome Frank, Courts on Trial: Myth and Reality in American Justice (Princeton University Press 1973)).

[4]        The Bar should never underestimate that judges every day in every case strive to overcome their irrational and unconscious prejudices. Whilst actual bias is clearly demonstrable, perceived bias could be inferred by any person in any given case and especially so in Seychelles where every issue assumes a political edge. For the system of justice to operate there must be a belief by those who engage in the justice system that judges as their oaths dictate are independent and impartial. A corollary of the impartiality and independence of the Judiciary is the impartiality and independence of the Bar. It should also ensure as a noble profession that its impartiality and independence is not impaired by considerations other those that are purely juridical.

[5]        Let applications for recusal be limited to those cases where it is clear that a judge cannot administer justice without fear or favour. 

 

Msoffe, J.A

[1]        I have read the lead Judgment of my brother Domah, J.A.  I entirely agree with him and I have signed the Judgment.  I have also read the Judgment of my sister Twomey.  I also agree with her.

[2]        The background leading to the appeal and the application of the test for reasonable apprehension of bias in a recusal application have been adequately stated in the Judgment of Domah, J.A.  As was stated in S v Shackell 2001(4) SA 1 (SLA) the test must be an objective one.  Not only must the person apprehending the bias be a reasonable person in the position of the Applicant for recusal but the apprehension must also be reasonable and based on reasonable grounds.

[3]        In other jurisdictions an objection against a Judge or Magistrate can legitimately be raised in the following circumstances: One, if there is evidence of bad blood between the litigant and the Judge.  Two, if the Judge has close relationship with the adversary party or one of them.  Three, if the Judge or member of his family has an interest in the outcome of litigation other than the administration of justice.  A Judge or Magistrate should not be asked to disqualify himself or herself for flimsy or imaginary fears ? See, for example, Laurean G. Rugaimukamu v Inspector General of Police, Civil Appeal No.13 of 1999, and Jayantkumar Chandubhai Patel alias Jeetu Patel and 3 Others, Civil Appeal No. 59 of 2012 (both unreported decisions of the Court of Appeal of Tanzania.)

[4]        It was suggested in the course of hearing arguments in this appeal, and I have no reasons to doubt this, that the law on recusal in Seychelles is still developing.  If so, I wish to add two perspectives of recusal for purposes of developing the Seychelles jurisprudence on the subject.

[5]        First, if a party perceives that his/her case should not be heard by a particular Judge, the request for recusal could be taken administratively before the case is cause listed for hearing.  At that stage, both parties to the case could meet together with the relevant Authority, .ie. the Chief Justice, in Chambers and informally, to discuss the matter.  If a positive and amicable agreement is reached at that stage, that would be the end of the matter.  In my view, this approach is a good one in that it helps the dignity and decorum that should go both with the office of the judge and the noble profession of the Bar.  It preserves the privacy rights of all parties concerned and  avoids possible embarrassments to all concerned  if that matter should come by way of formal motion for recusal and eventually argued in Court.

[6]        If need be, the Chief Justice, in consultation with the necessary stakeholders, could draw up some guidelines aimed at achieving the above goal.

[7]        Second, Seychelles has a Code of Conduct for Judges.  In my reading of the Code, I hope I will not be wrong in saying that, it is based on the Bangalore Principles of Judicial Conduct.  Indeed, it will be fair to say that it is a replica of the said principles.  The Code was adopted by Judges, and published in 2010 by the Judiciary of Seychelles.  In the definition section, a Judge includes “the Justices of Appeal, Judges, Masters, Magistrates, Registrars and any other person exercising judicial authority.”  In my view, having a Code of Conduct is a step in the right direction in ensuring the independence of the Judiciary and the impartiality, integrity, propriety, competence and diligence expected of a Judge.

[8]        Part of Rule 2.4 of the Code reads as under:-

… Without limiting the generality of the foregoing a Judge shall disqualify himself or herself from participating in any proceedings in the following instances:-

1. Where the Judge has personal knowledge of the disputed facts concerning the proceedings and which knowledge is likely to influence or prejudice his Judgment;
2. Where a member of the Judge’s family, employee or friend is representing a litigant, is a party, or has interest in the outcome of the matter in controversy, in the proceedings.

[9]        In my view, Rule 2.4 (supra) is perfect.  However, for purposes of adding more “meat” to it, perhaps it could be improved or changed in such manner that it will incorporate the American model of Code of Conduct for Judicial Officers, which is more embracing and detailed on recusal.  The American model provides for something like this:-

C.        Disqualification

(1)     A Judicial Officer should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to, the instances where:

(a)      he has a personal bias or prejudice concerning a party or personal knowledge or facts in dispute;

(b)      he served as a lawyer in a matter in controversy.  Or a lawyer with whom he previously practised law served during such association as a lawyer concerning the matter or the Judicial Officer or such lawyer has been a material witness in the matter;

(c)      he knows that he individually or as a fiduciary or his spouse or minor child residing in his household has a financial or any other interest in the outcome of the proceedings;

(d)      he or his spouse, or a person related to either of them or the spouse of such a person:

(i)      is a party to the proceedings, or an officer or rector or trustee of a party;

(ii)     is acting as a lawyer in the proceedings;

(iii)    is known by the Judicial Officer to have an interest which could be substantially affected by the outcome of the proceedings;

(iv)    is to the Judicial Officer’s knowledge likely to be a material witness in the proceedings.

(2)     A Judicial Officer should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.

(3)     For the purpose of this section:

(a)      the degree of relationship will be calculated according to the Law of Marriage Act or any other amendment or enactment thereof;

(b)      “fiduciary” includes such relationships as executor, administrator, trustee and guardian;

(c)      “financial interest” means ownership of a legal or equitable interest, however small, or relationship as director, advisor or other active participant in the affairs of a party except that:

(i)      ownership in a mutual or common investment fund which holds securities is not a “financial interest” in such securities, unless the Judicial Officer participates in the management of the fund;

(ii)     an office in an educational, religious, charitable, fraternal or civic organisation is not a “financial interest” in securities held by the organisation;

(iii)    the proprietary interest of a policy holder in a mutual savings society or similar proprietary interest is a “financial interest” in the organisation only if the outcome of the proceedings could substantially affect the value of the interest;

(iv)    ownership of government securities is a “financial interest” in the issues only if the outcome of the proceedings could substantially affect the value of the securities.

D.        Waiver and Disqualification

A Judicial Officer disqualified by the terms of Paragraph C(1)(c) or Paragraph C(1)(d) may instead of withdrawing from the proceedings disclose on the record the basis of his disqualification.  If based on such disclosure, the parties, their representatives and/or their lawyers, independently of the Judicial Officer’s participation, all agree that the Judicial Officer is no longer disqualified and may participate in the proceedings.  The consent by the parties, their representative and/or their lawyers shall be recorded and shall form part of the record of proceedings.

[10]      I hope this small contribution will help in further developing the law on recusal in Seychelles.

                                                       

                                                                  January Msoffe

                                                                  Justice of Appeal

 

Dated and delivered at Palais De Justice, Ile Du Port, on 12^th December 2014.