Chow & Anor v President Michel & Anor (CP 4 of 2007) [2007] SCCC 2 (9 May 2007)

IN THE CONSTITUTIONAL COURT OF SEYCHELLES BETWEEN: PAUL CHOW (Of Premier Building, Victoria Mahe, Seychelles) THE SEYCHELLES DEMOCRATIC PARTY (Rep by its Leader Mr. Paul Chow of Premier Building, Victoria Mahe Seychelles VIS PRESIDENT JAMES ALIX MICHEL (State House, Victoria, Mahe) ATTORNEY GENERAL (Of National House, Victoria, Mahe) 1st Petitioner 2nd Petitioner 1st Respondent 2nd Respondent Constitutional Court No 4 of 2007 .................................................................................................................................. (Before: A. R. Perera J (Presiding), D. Karunakaran J and D. Gaswaga J) ................................. , , , , , . Mr. F. Elizabeth for the 1st Petitioner Mrs A. Antao for the 2nd Petitioner The Han. A. F. T. Fernando, A. G, with Mr J. Camille and Mr Elvis Chetty for the Respondents Heard on - 8th May 2007 Decided on - 9th May 2007 Perera J (Presiding) JUDGMENT The Petitioners have invoked the jurisdiction of this Court under Article 130(1) of the Constitution. They seek a declaration under Sub Article (4) (a) thereof that "the act of the 1st Respondent ,_ --~' ... I~,: '" :'.. .. (President) in issuing and making the said proclamation (dissolving the National Assembly), contravenes the Constitution, namely Article 110(2), on the grounds that the reasons given by the 1st Respondent to dissolve the National Assembly do not constitute a correct interpretation of the concept of "National Interest" under Article 110(2), The proclamation issued by the President, which was gazetted on 20th March 2007 as S. I. 6 of 2007 is as follows- Illn the exercise of the powers conferred by Article 110 of the Constitution of the Republic of Seychelles, the President, having considered it in the National interest to dissolve the National Assembly to allow to electorate of the Republic to be consulted through a general election and having given notice thereof to the Honourable Speaker of the National Assembly, makes the following proclamation- 1. 2. The National Assembly shall stand dissolved on the day next following the publication of this proclamation" r-- The Petitioners rely on the message on the State of the Nation delivered by the President to the National Assembly on 20th March 2007, pursuant to Article 65 of the Constitution. They aver in paragraph 5 that the President "described the "National Interest" for the purpose of the said dissolution as follows- "(i) (i) The Opposition is not consistent. The Opposition does not show respect for the people who have elected them, as well as the institution of the National Assembly. " ' .... , ~ .\ r ", r ',.. ._ (ii) The Opposition preaches democracy but practices anarchy. n They aver that the reasons given by the President as set out above do not amount to "National Interesr pursuant to Article 110(2) of the Constitution for the following reasons- "(a) That at no time since he has been elected the President of the Republic of Seychelles has the National Assembly refused to pass a bill proposed by the Cabinet or obstructed the President from exercising his duty; (b) That on the 11thDecember 2006 under powers conferred upon it by Article 86(1) of the Constitution of Seychelles, the National Assembly passed the appropriation Bill 2007 in unanimity of the members present; (c) That on the 21st December 2006, the 1st Respondent under powers conferred upon him by Article 86(1) of the Constitution of Seychelles, assented to the appropriation Bill 2007". They also aver that the "sofe intention" of the Constitutional Commission under Article 110 (2) was "to afford the President an opportunity to break a deadlock in the event that the National Assembly creates legal obstacles to the President's Policies", The [st Petitioner, in his capacity as the President and Leader of the Democratic Party, and as a Constituent, and voter of the Beau Vallon district, avers in paragraph 8 of the petition that his interest has been affected by the said proclamation and subsequent dissolution of the National Assembly in that the 1sl Respondent by dissolving the National Assembly for the reasons given in paragraph 5 has willfully deprived (him) his right to take part in the conduct of Public Affairs through ~ • l. ,, • . .;_. . - , his freely chosen representative as provided for by Article 24(1) (a) of the Constitution of Seychelles. It was submitted by Mr Elizabeth, Learned Counsel for the 1st Petitioner that that averment relates to the 2nd limb of Article 130(1) as regards the 1st Petitioner's interest. The [st and 2nd Petitioners jointly aver in paragraphs 9 and 10, that "their interest have been affected or is likely to be affected by the said proclamation, in that they may be participating in an Unconstitutional election on the 1()th, 11th and 12fh May 2007', and also "that their interest have been affected or is likely to be affected by the said proclamation in that they may be electing an Unconstitutional National Assembly in the forthcoming elections". The Respondents, represented by the Han Attorney General have filed a defence to the petition, consisting of three points of law and averments on the merits. While seeking a dismissal of the petition, they have prayed for a "hearing on the 8th of May itself and to give an early decision in view of the fact that the general elections are scheduled for the 10th, 11th and 12th of May 2007. The Petitioners, who have the carriage of the case, have not sought an expeditious hearing. However, when the case was taken up for mention on 8th May 2007, Learned Counsel for the 1st and 2nd Petitioners agreed to present their arguments, and hence this Court was faced with the arduous task of delivering a judgment within 24 hours. OBJECTIONS TO PLEADINGS OF THE RESPONDENTS Before I deal with the paints of law relied on by the Han. Attorney General, I shall consider an objection raised by the Petitioners as to the adequacy of the defence filed by the Respondents. ~.. \ - 'la.' '. '" - First, it was submitted that the supporting affidavit filed by Mr Clement Alfred Herman Potter, in his capacity as a Constituent of the Beau Vallon district should be rejected as he is not a party to the case. As was held in the case of the Mauritius Agricultural And Investment Co Ltd v. The Motor Union Assurance Co Ltd (1970) M. R. 42, "affidavitscontain not merely facts, they are Akin to evidencein chief." Hence, it was held in the case of Angor Chan La; Seng v. Government of Seychelles (Cons: Case no 9 of 1997) that it was open to the Petitioners to have made an application to cross examine the deponent if so advised. In the absence of such an application in the present case, the Court accepts the facts averred in the affidavit of Mr. Potter. A further point raised by the Petitioners was that the defence contained mere general denials and hence on the authority of Victoria Disrtrict Council v. Pillay (1968) S. R. L. 159 it was contended that such denials would amount to admissions. The Attorney General submitted that the Petitioners are seeking a declaration that the proclamation issued by the President contravened Article 110(2) of the Constitution as the reasons given by him, as set out in paragraph 5 of the petition, did not constitute a correct interpretation of the concept of "National Interest, and that was purely a legal matter not involving facts. He stated that the 151Respondent has admitted paragraphs 1, 3, 4 and 5 of the petition, and hence there was no necessity to support those averments by an affidavit from him. He also submitted that in general, affidavits need not be filed to support a legal issue which does not involve facts. In this case, the Court is called upon to make a declaration under Article 130(4) (a) that the act of dissolution contravened Article 110(2). The Rules of Court do not specify the particulars that should be included in a defence, as they have done in respect of a petition, in Rule 5(1), The casus omissus provision in Rule 2(2) is applicable only "where any matter is not provided for in the Rules". Such "matter" should necessarily be a matter arising from its own peculiar procedure. ~ . , ......, ,. , '. Hence, where, as in the present case, averments of facts other than those averred by the Petitioners are not necessary for the Respondents to defend, the filing of a defence in the present form is competent. Hence the preliminary objections raised by the Petitioners on the pleadings of the Respondents have no merit. PRELIMINARY OBJECTIONS TO THE PLEADINGS OF THE PETITIONERS AND LOCUS STANDI I shall now deal with the points of law raised by the Respondents. Grounds 2 and 3 are now abandoned as the Caption was amended on the application of the Petitioners. The first ground relates to the inadequacy of pleadings of the Petitioners to conform to the requirements of Article 130(1) of the Constitution and Rule 5(1) of the Constitutional Court Rules. As regards those Rules, Article 136(2) empowers the Chief Justice to make Rules regulating generally the practice and procedure of the Court. Hence, the Constitutional Court, being a division of the Supreme Court; the Rules made by the Chief Justice by S.1.33 of 1994 have Constitutional validity. However they are not beyond challenge. In Prem Chand v. Excise Commissioner_(1958) S. C.578, the Supreme Court of India invalidated one of its own Rules, namely, Order 32 Rule 12 of the Supreme Court Rule 1966, which required furnishing security to petition the Court under Article 32 of the Constitution. The basis of that decision was that, the requirement to furnish security discriminated against the poor Sections of Society in the enforcement of Fundamental Rights. The Rules of the Constitutional Court of Seychelles have not been challenged so far as being unconstitutional, discriminatory, or unreasonable. Hence Rule 5, which requires that a petition filed - . . ' .. ._ .... " under Article 46(1) or 130(1) shall contain a concise statement of material facts, and under Rule 3(1) that such petition shall be accompanied by affidavits of facts in support thereof. forms the procedural basis for invoking the jurisdiction of this Court in respect of an allegation of a contravention or a likely contravention of fundamental rights or otherwise. Article 130(1) provides that the application be made "subject to this Arlicle", Obviously, it should be taken that such reference is limited to the substantive provisions of Sub Articles (2) to (8), The Constitution by Article 136(2), provides for matters relating to pleadings and procedure before the Court to be governed by the Rules made by the Chief Justice. so far as they do not violate any substantive provision of Article 130(1) to (8). As was submitted by the Hon Attorney General, the Constitution of Seychelles does not distinguish between acts of Parliament and Subsidiary Legislation as the term "law" is defined in Schedule 2 of the Constitution as "including any instrument that has the force of law and any unwritten Rule of Law", The Rules of this Court. have the force of law. and hence pursuant to Article 5, while the Constitution is the Supreme law, only laws found to be inconsistent therewith WOUld,to the extent of such inconsistency, be void, Hence Rules that are consistent with the Constitution should have to be followed mandatorily unless and until they are ruled by Court as being inconsistent, on a specific application made in that respect before this Court. Unlike in the case of Paul Chow v. Hendrick Gappy & Ors (Cons: case no 3 of 2007) wherein the petition contained several typographical errors and irresponsibly drafted averments, which this Court in any event permitted to be corrected , the Leamed Counsel for the Petitioners have spared us the unpleasant task of passing structures in the present case. However, once again the Hon. Attorney General has submitted as a point of law that the two elements involved in Article 130(1) have not been clearly averred. and stated with certainty, " Article 130(1) requires a Petitioner to aver and establish, albeit on a prima facie basis, that a provision of the Constitution, other than one under Chapter III has been contravened, and that his interest is being or is likely to be affected by such contravention. In this respect, the Respondents refer to paragraph 9 of the petition wherein it has been averred inter alia that "their interest is likely to be affected by the said proclamation, in that they may be electing an unconstitutional National AssemblY'. It was submitted by the Hon. Attorney General that the words "may ben connoted uncertainty. He further submitted that the allegation of how one's interest is being or is likely to be affected by a contravention of a Constitutional provision should be such that it should merit an investigation by this Court, As regards paragraph 8 of the petition wherein the 1st Petitioner avers that his interest has been affected by the said proclamation and the subsequent dissolution of the National Assembly in that he has been deprived of his rights provided by Article 24(1) (a) of the Constitution, it is contended by the Hon Attorney General that a mere statement that he is a Constituent of the Beau Vallon District and that he voted in the National Assembly election of 6th December 2002, without a definitive statement that he intends to vote at the forthcoming General Election would not satisfy the requirements of the 2nd limb of Article 130(1). So also that the mere statement that he is the President of a Political Party, without a definitive statement that such Political Party will be fielding candidates at the forthcoming General Election would be insufficient. He therefore submitted that the issue was not whether the Petitioners have locus standi or not, but whether their pleadings satisfy the requirements of Article 130(1) of the Constitution. As Garrioch J stated in the Mauritian case of Leckning v. Governor General (1975) M. R 134- , , ...- -, "This Court holds its charter form the Constitution which is the Supreme law of the land. Its competence can only extend within the limits assigned to it by the Constitution. If therefore by unambiguous language, the makers of the Constitution have deemed it appropriate, be it for reasons of Constitutional Policy or otherwise, to bar access to the Court for any particular matter (and possibly to leave it for debate in other quarters) the Court must yield to the prohibition". Article 130(1)of our Constitution is unambiguous. The two elements must be averred and established on a prima facie basis, so that the burden of proof shifts to the State under Sub Article (7) thereof. The traditional Rule in regard to locus standi which was first enunciated in Ex. P. Sidebotham (1880) 14 CH. D. 458 was that only a person who has suffered or is likely to suffer legal injury, has the right to seek judicial redress. Chief Justice Bhagwati of India stated that "the Rule of locus standi is a Rule of ancient vintage and it arose during an era when private law dominated the legal scene, and public law had not yet been born; Several Constitutions of Commonwealth countries including Seychelles, still retain this traditional Rule. However in India, Article 32 of the Constitution provides that "that the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part (Fundamental Rights) is guaranteed". It does not, like Article 46(1) and Article 130(1) of our Constitution specify who is entitled to judicial redress. Hence Article 32 of the Indian Constitution permits liberalization of the Rule to include any public spirited individual or associations to vindicate the cause of justice. Consequently, the Courts there have permitted public interest litigation not on a broad reading of Article 32, but on an extension of the Rule relating to standing which permits a third party with sufficient interest to move the Court where the aggrieved party is under some incapacity to move . .._ .. ' " . , due to minority, lunacy, illiteracy, economic incapacity or social backwardness. This is not possible under the relevant provisions of our Constitution. The remedy lies not in engaging in judicial activism beyond the limits of the Constitution, but in altering these provisions by the legislature following the procedure set out in Article 91. Till then an aggrieved party under Article 46(1) should aver and establish how a contravention of a fundamental right has or is likely to be contravened in relation to him, and an applicant under Article 130(1) should aver and establish that any other provision of the Constitution has been contravened and that his interest is being or is likely to be affected by such contravention. The Court of Appeal in the case of Port Glaud Development Co v. The Attorney General (S. C. A. no. 20 of 1994) distinguished the scope of an application made under Article 46(1), from the scope of an application made under Article 130(1), and held that "A threatened contravention is a ground for invoking the jurisdiction of the Constitutional Court under Article 46(1) while under Article 130(10), there must have been an actual contravention. Where the petition of an Applicant discloses not an actual but only a threatened contravention of the provisions of the Constitution, on a plain reading of Article 130(1), the venue for seeking redress is not the Constitutional Court. Although the provisions of the Constitution should be given a liberal meaning, the absence of the particular words "likely to be contravened" in Art 130(1) must be by design as those words appear in Articles 46(1) and 130 (6). The provisions of Article130(1)are not imperfect without those words and those provisions without those words are far from being unintelligible". It was further held that - ·. .'- , , , , "In an application under Arlicle 130(1), the true path of enquiry should therefore involve, first, ascerlaining what the allegations in the petition are, and secondly whether what has been alleged is capable of amounting to, and amounts to a contravention. Where a contravention has not been al/eged, the second stage of enquiry would be unnecessarY'. (Per Ayoola JA). Hence, in the case of the S. N. P v. Government of Seychelles (Cons: case no 6 of 1999) the Petitioner alleged that the members who were eppointed to the board of the Seychelles Broadcasting Corporation were unlikely to be independent for purposes of Article 168 of the Constitution. They further averred that "there was no guarantee" that the Public Servants who were appointed to that board will remain outside the influence of the State which employed them or that of the President who is head of the executive. This Court held that the Petitioner had not averred a "real risk", but merely a "speculative possibility" which was inadequate to maintain a complaint under Article 130(1) and hence dismissed the petition. As regards the joint pleadings of the 151and 2nd Petitioners under paragraphs 9 and 10 of the present petition, what has been pleaded is a "speculativepossibility that they" may be participating in an unconstitutional election, and that consequently they "may be" electing an unconstitutional National Assembly. As was held in the Port Glaud Development case (supra), an application under Article 130(1), must be based on an actual contravention. It is only thereafter that the 2nd limb operates requiring the applicant to aver how his interest is being or is likely to be affected by such contravention. The words "may be" falls short of the meaning of a "likely contravention", as those words connote uncertainty. The word "likely"would mean a "real risk to a contravention" and , '. , . not a fanciful or imaginary fear or belief. Hence paragraphs 9 and 10 do not satisfy the requirement in the 2nd limb of Article 130(1). In the present case, following the clear guidelines laid down in the Port Glaud Development case (supra), first, what has been alleged in the petition? The 1st Petitioner, has in paragraph 8 avers that his interest has been affected by the dissolution of the National Assembly, as he has been deprived of his fundamental right under Article 24(1) to conduct Public affairs through his freely chosen representative. The Attomey General submitted that there was no queston of a "freely chosen representative" continuing for ever as a general election could be held at the expiry of 5 years of its sessions or if sooner dissolved under Article 110 or 111. He therefore submitted that the 1st Petitioner cannot rely on Article 24(1) (a) to establish how his interest is being or is likely to be affected. He further submitted that no averment has been made that he intends to vote at the forthcoming elections, and that the 2nd Petitioner Political Party will be fielding candidates at this election. As was held in the Port Glaud Development Case supra, there must be positive and definitive averments in the petition how the person's interest is being or is likely to be affected by the contravention. The averments in paragraph 8 of the petition are therefore insufficient for purposes of Article 130(1). In paragraphs 9 and 10 of the petition, the Petitioners jointly aver that their interest "have been affected or is likely to be affected", There is no possibility of being uncertain by averring in the alternative. As the Han. Attorney General submitted, the issue here is not whether the Petitioners have locus standi or not, but whether their pleadings satisfy the requirements of Article 130(1) of the Constitution", and that "it is not the function of the Court or the Respondent to make the Petitioner's position effective". In this respect, this Court would rely on Article 5 of the Civil Code, and prefer to follow the ruling of the Court of Appeal in the Port Glaud case (supra) on the implications of Article 130(1) and with respect, depart from the Ruling of the .<.. , . , same Court in Paul Chow v. Hendrick Gappv S. C. A. case no 10 of 2007 on this matter as the Rules of Court, which constitute "law" in our Constitution, have not been given the required legal consideration in relation to the pleadings under Articles 130(1) and 46(1). Accordingly the Court holds that the Petitioners have in their pleadings failed to satisfy this Court as to the two basic elements of Article 130(1), and consequently the petition fails. DETERMINATION ON MERITS As in the previous case of Paul Chow (supra), this Court would proceed to consider the merits of the case, which were so ably argued before us by Counsel for the Petitioners and the Han. Attorney General. Undoubtedly, the legal issue involved is of great moment on the eve of the general election which is due to commence tomorrow 10th May 2007. Article 110(2) provides that - "(2) Subject to Clause (5), the President may, not more than once during a term of office of the President, for any reason which the President considers it to be in the national interest so to do, after giving seven days notice to the speaker, by proclamation published in the gazette, dissolve the National Assembly and the Assembly shall stand dissolved on the day next following the Publication.of the proclamation". Clause (5) referred to therein provides that - " . _' " "(5) The President shall not dissolve the National Assembly under Clause (2) or Clause (3) during any period of public emergency in terms of Article 49 or where proceedings for the removal of the President under Article 53 or Article 55 have commenced, during the tendency of the proceedings". Incidentally, the reference to Article 49 is a printing error, as a declaration of a State of emergency is provided in Article 41 and not Article 49. It must initially be stated, that the Petitioners do not challenge the right of the President to dissolve the National Assembly under Article 110(2). The challenge is to the reasons given by him during the State of the Nation address as Constituting "National interesf' as rehearsed in paragraph 5 of the petition. The Petitioners rely on the reasons set out by them in paragraph 6(a) (b) and (c) in support of their contention. They also aver in paragraph 7 that the "sole intention" of the Constitutional Commission when drafting Article 110(2) was to afford the President an opportunity to break a deadlock in the event that the National Assembly creates legal obstacles to President's Policies. This remains a mere assertion as no proof of such intention as appearing in any document or audio or video recording was produced. In any event, in a similar situation in the case of Mathew Servina v. Speaker of the National Assembly. (Cons: Case no 2 of 1994), I delivered a minority Ruling holding that- "In my view the proceedings before the Constitutional Commission, be they in documentary form or in audio or video form, are not permissible to be used to construe any term or provision of the Constitution which has been approved at a referendum. It is now the Supreme law of the country, and any '.. ., , . - interpretations thereof are permissible only under Article 47 and 48 in respect of Fundamental Rights, and Schedule 2 in general. II There was no appeal against the majority ruling of Amerasinghe J and Bwana J. However, upon hearing the appeal on merits, the Seychelles Court of Appeal referred to the minority ruling and interpreted the term "Minister' applying the Rules of interpretation in paragraph 8 of Schedule 2 of the Constitution. Hence even if "preparatory material" to establish the intention of the Constitutional Commission were produced in this case, they would not have been material for this Court to interpret the term "national interest" in Article 110 (2). Hence the reason given in paragraph 7 of the petition cannot be considered. The Hon. Attorney General submitted that Article 110 (2) gave an unfettered discretion to the President to dissolve the National Assembly "for any reason which the President considers it to be in the national interest so to do", The Petitioners however submit that such reason or reasons should be based on economic, military or cultural grounds. It was therefore contended that the three reasons given by the President during the "State of the Nation address" did not fall into any of those categories. Adverting to the non attendance of 11 members of the opposition in the National Assembly without the permission of the Speaker from 4th October 2006 to 19th March 2007, it was submitted that. as they had vacated their seats under Article 81(1), the Speaker ought to have notified the Electoral Commissioner after 90 day of absence, so that by- elections could have been held under the provisions of Article 79(2). It was therefore submitted that, with such procedure being available, the President could not have relied on that situation to be of "national interest' to dissolve the National Assembly under Article 110 (2) by stating that the opposition is not consistent and does not show respect for the people who elected them as well as the institution of the National Assembly. JUSTICIABILITY OF THE REASONS GIVEN BY THE PRESIDENT Much of the arguments of Counsel for the Petitioners and Han. Attorney General centered on the justifiability of the reasons given by the President. In this respect, Article 50 provides that there shall be a President of Seychelles who shall be the Head of State, Head of Government and Commander in Chief of the Defence Forces of Seychelles". Article 66(1) provides that "the executive authority of the Republic shall vest in the President and shall be exercised in accordance with this Constitution and the laws of Sevchelles". Sub Article (2) provided that - "the executive authority vested in the President under this Article shall extend to the execution and maintenance of this Constitution and the laws of Seychelles and to all matters with respect to the National Assembly has power to make laws". This is the basis of the "Executive Presidency" in our Constitution. For present purposes, what is relevant is the powers entrusted to him by the Constitution to perform the functions of Head of State and Head of the National Executive. In the case of The President of the Republic of South Africa v. South African Rugby Football Union (2001) 1. S. A. 1. (C. C.) the South African Constitutional Court distinguished acts done by the President Qua head of State, from acts done ID@_ head of Executive. Article 84(2) of that Constitution provided that the President was responsible for (1) assenting to and signing bills (2) referring back bills for reconsideration (3) referring bills to the Constitutional Court for decision on Constitutionality (4) summoning the National Assembly (5) making appointments of Constitutional appointees (S) appointing commissions of inquiry (7) calling a referendum in terms of an act of parliament (8) · .. receiving and recognizing foreign diplomats (9) appointing Ambassadors and other Diplomatic and Consular representatives (10) pardoning or reprieving offenders (11) conferring honours. The Court held that those powers which historically originated from Royal prerogative, were now enjoyed by the Head of State, but that some of them were strictly controlled by the express provisions of the Constitution. In the case of Patriotic Front - Zapu v. Minister of Justice, Legal and Parliamentary Affairs (1986) L. R. C. (Const) - 672, the Appellant, a political party in Zimbabwe sought, inter alia, orders declaring that Proclamation 2 of 1985, by which the President fixed the nomination date for the General Election, was ultra vires Section 12 of the Electoral Act 1979, as modified by section 4 of the Electoral Act (Modification) Notice 1985, or else void for unreasonableness. Alternatively, it sought an order declaring that section 4(a) of the 1985 Notice was ultra vires section 165A of the 1979 Act. The basis of the claim was that the nomination date fixed, 10th June 1985, did not allow enough time for the appellant's prospective candidates to comply with the requirements of submission of nomination papers. It was held, dismissing the Appeal that- "(1) In Zimbabwe, unlike in the United Kingdom where most royal prerogatives are non-statutory attributes of the Crown, prerogatives are creatures of Constitutional conventions and practices, some of which were applicable before the coming into effect of the present Constitution. (2) There are prerogatives exercisable by the President, and conferred on him by the Constitution (such as Section 65 and 67 dealing with such as appointing and receiving Diplomats and matters Ambassadors, law, ratifying conventions, proclaiming martial declaration of war and peace and conferring honours which the Courts, all things being equal, could not enquire into because the President, acting on the advice of the Government, is the best judge in those circumstances of matters of policy in the areas covered by those prerogatives. Thus the judges are not qualified to deal with questions of national security, as where the President declares a state of emergency under section 68 of the Constitution. However, should such prerogatives be exercised under unlawful conditions or be performed outside the law, the courts have a duty to find out whether the facts upon which the prerogative power was exercised were lawful, i.e. whether there was procedural impropriety. The arbitrary exercise by the Executive of a prerogative, regardless of its effects on those who may be deprived of their rights or interests or who have legitimate expectations, is nowadays subject to judicial review. The reason for reviewing such executive action is that it would be unfair to deprive a citizen of his rights, interests or legitimate expectations without hearing what he has to say or deny him the opportunity to find out whether the decision emanating from the exercise of an executive prerogative is legal or not, or, for that matter, irrational or unfair. (3) The action of the President in fixing the nomination date for the General Election was not an "act of Staten in the sense of a prerogative act connected with external affairs or with foreign states and their subjects. Though not a term of art, an act of State is an act of the Executive in those areas of executive prerogative which oust the jurisdiction of the Courts. But such executive prerogatives the are very few nowadays because whenever the exercise of executive prerogative affects, as in the present case, the private rights, etc. of the subjects or citizens, the jurisdiction of the Courts is (Dicta of Lord Reid in not ousted and judicial reviews is available. Attorney -General v Nissan (1969) 1 All ER 629 at 639 and Lord Roskill in Council of Civil Service Unions v Minister for the Civil Service (1984) 3 All ER 935 at 956 applied; Beckmann v Minister of the Interior and Others 1962(2) SA 233 not followed.) (4) The President's action in fixing the nomination date was not ultra vires as being "unreasonablen for, applying the tests laid down by Lord Russell of Killowen, c. J., in Kruse v Johnson (1898) 2 QB 91 and 99, (i) as conceded, there was no bad faith disclosed; (ii) the there was no Proclamation was not "partial and unequa/", for " . (5) (6) different treatment for candidates of the ruling party or any other party; (iii) it was not "manifestly unjust" just because of the short time allowed checking Voters'Rolls, etc., (iv) did not involve such "oppressive or gratuitous interference with the rights" of those subject to it as could find "nojustification in the minds of reasonable men." The President had acted within the terms of the enabling Act and the Proclamation issued by him was not, therefore ultra vires. The Court, in rejecting the view expressed in the Court below that the courts cannot declare ultra vires statutory instruments made in exercise of State Executive powers on the ground of unreasonableness, preferred to adopt the grounds for judicial review of administrative action laid down by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service, i.e., "illegality", impropriety", Merely holding that a statutory instrument was promulgated in accordance with law, i.e. on the face of it intra vires, was not an end of the matter, for the courts must then go on to apply Lord Diplock's tests.11 "irrationality" or "procedural On the basis of these authorities, the action of the President in dissolving the National Assembly under Article 110 (2) is not an "act of State", that is, not in his capacity as head of State, but as Head of Executive as it was not a "prerogative act" connected with external affairs or with foreign states and their subjects. Hence the jurisdiction of this Court is not ousted and "judicial review" in the sense of a "Constitutional review" is available for the purpose of enforcement of the Constitution under the Powers vested in Article 129(1). In this respect, it is necessary to consider the three reasons given by the President as set out in paragraph 5 of the petition, which the President has admitted in his defence as being the basic reasons given by him for the dissolution in the national interest. The first reason is that the Opposition is not consistent. It was submitted that this was a reference to the absence of Opposition members from 4th October 2006 to 19th March 2007. In the second reason, the President stated that the Opposition does not show .... .- . respect for the people who have elected them as well as the institution of the National Assembly. This again, it was submitted, was a reference to that absenteeism. The Petitioners have not denied the correctness of these reasons on a factual basis. They only aver that they do not constitute matters of "national interest" as envisaged in Article 110(2). On a factual basis, according to gazette no 56 of 10th December 2002, wherein the Electoral Commissioner published the results of the general elections, the Seychelles National Party had 7 elected members and 4 proportionately elected members. Hence over 40% of the total number of votes cast at that election were cast for the opposition. The Multi Party Democracy was introduced by the Constitution of the 3rd Republic which came into operation on 21st June 1993. Hence it is implied in the reasons that the President as Head of Executive being faced with a situation where over 40% of the voters were being deprived of their rights to conduct Public affairs through their freely chosen representatives could well have decided that it was in the "national interest to dissolve the National Assembly to allow the electorate of the Republic to be consulted through a general election", as stated in the proclamation dated 20th March 2007, S.1.6 of 2007. The term "national interest' is therefore not a term of art to be limited to "economiC, military or cultural matters". In fact, the citation of that definition by Mr Elizabeth was in connection with an Article about generic foreign affairs terms relating to navigation. The concept of "national interest" varies from country to country depending on the peculiar situations that arise from time to time. A further factual position arising form the reasons was that, - as the National Assembly, the legislative branch of the government, was functioning without the full complement of elected members and proportionatelyelected members_as required in Article 78 of the Constitution, it was of national interest to dissolve the National Assembly and allow the electorate to be consulted through a general election. Hence, the reasons given by the President as being those which he considered to be in the 'national interest" are not unreasonable, and cannot be said to constitute an incorrect interpretation of that term as envisaged in Article 110 (2). There has also been no procedural impropriety as the Provisions or Article 110(2) were followed. Hence there being no contravention as alleged, the petition is dismissed, but without costs. .....................~ .. A. R PERERA JUDGE (PRESIDING) Dated this 9th day of March 2007 D. Karunakaran D. KARUNAKARAN JUDGE Dated this 9th day of May 2007 D. Gaswaga I concur OJllf •.. ].1..... ............... D. GASWAGA JUDGE Dated this 9th day of May 2007