Chow v Gappy & Ors (3 of 2007) [2007] SCCC 1 (3 April 2007)

J4 .-"""""" . .' IN THE CONSTITUTIONAL COURT OF SEYCHELLES ' (Leader and President of the Democratic Party) - PETITIONER PAUL CHOW VIS 1. HENDRICKS GAPPY (Electoral Commissioner of Aarti Chamber) 2. THE ATTORNEY GENERAL 3. MR FRANCE ALBERT RENE (President of SPPF) 4. MR WAVEL RAMKALAWAN ( Leader of SNP) - RESPONDENTS Constitutional Case NO.3 of 2007 Mr. F. Elizabeth for the Petitioner The Hon. A. Fernando Attorney General Together with Senior State Counsel - Mr. Elvis Chetty & State Counsel Mr. Clifford Andre for the 1st and 2nd Respondents Mr. Bonte for the 3rdRespondent together with Mr. J. Renaud Mr. A. Derjacques for the 4th Respondent (Before: A. R. Perera J (Presiding), D. Karunakaran J and D. Gaswaga J) PERERA J (Presiding) JUDGMENT The Petitioner has invoked the jurisdiction of this Court under Article 130(1) of the Constitution seeking a declaration that 11heannouncement and publication of the dates of the election by the 1st respondent contravenes Article 79(1) (2), and Micle 81(1) of the Constitution of Seychelles and is therefore null and voicf, and consequently "to set aside the election dates as announced and published by the 1st respondent". It is not in dispute that the President of the Republic, on 12th March 2007, notified the speaker of the National Assembly of his intention to dissolve the National Assembly and that on 20th March 2007, "the President in his State of the National address, announced the dissolution of the National Assembly, and that the proclamation was published in the Official Gazette of 20th March 2007, under S.1.no. 6 of 2007. The National Assembly was dissolved by the President in the exercise of his powers vested in Article 110 of the Constitution. Sub Article (2) of that Article provides that - "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". The Petitioner does not challenge the Constitutional procedure followed by the President in dissolving the National Assembly, nor his power exercised under Article 110. It is the announcement of the dates of the General Election by the 1st Respondent that is being challenged as contravening Article 79(1) (2) read with Article 81(1) (a) of the Constitution. The learned Attorney General, representing the 1st Respondent, and appearing in his own capacity under Rule 3(3) of the Constitutional Court Rules, raised preliminary objections under Rule 9 thereof. Mr. France Bonte. learned Counsel for the 3rdRespondent relied on the same objections. Mr. A. De~acques learned Counsel for the 4th Respondent stated that he was on a "watching brief' capacity for his client. Rule 9, permits a Respondent to "raise any preliminary objection" before filing a defence to the Petition. The 1st, 2nd and 3rdRespondent submitted that, as the issue before Court for interpretation was purely based on law and not on facts, the filing of a defence as -- , - . envisaged in Rule 9 would not be necessary. It was in these circumstances, and due to the general and public importance of the matter involved that the Court decided to dispense with that requirement. The learned Attorney General disclosed several omissions and errors in the Petition and affidavit filed by the Petitioner. For instance, it was averred in paragraph 5 of the Petition that the 1st Respondent announced the dates of the election on 20th March 2007, whereas it was done on 26th March 2007. A more material error contained in paragraph 8 of the Petition was the averment that the 1st respondent can only hold elections 30 days after the proclamation. As submitted by the Attorney General, that would have meant that the 1st Respondent was correct in fIXing the dates of the election to commence on the 50th day after the proclamation. This Court is prepared to acknowledge human errors and omissions. However, when the Constitutionality of an impending General Election which affects the whole country is being challenged, this Court expects the Petitioner and his Counsel to have acted with more diligence, seriousness, and with responsibility and at least peruse the pleadings once after typing for possible defects. In these circumstances I must register the strong disapproval of such irresponsibly drafted pleadings. Those errors and omissions were however permitted to be amended under Rule 5(3) as they did not constitute any new matter not pleaded in the Petition. The learned Attorney General however maintained his preliminary objection as regards the locus standi in judicio in relation to Article 130(1) of the Constitution. That Article is as follows- "130(1) A person who alleges that any provisions of this Constitution, other than a provision of Chapter 11/, has been contravened, and that the person's interest is being or is likely to be affected by the contravention may, subject to this Article, apply to the Constitutional Court for redress". - 'There are only two ways to invoke the jurisdiction of this Court, (1) under Article 46(1), where a person who claims that a fundamental right contained in Chapter III "has been or is likely to be contravened" in relation to him, by any law, act or omission, and (2) under Article 130(1). The present Petition, undoubtedly, has been filed under the latter provision. This Article, unlike Article 46(1) has two limbs. First, the Petitioner should aver, and establish that a provision of the Constitution, other than one under Chapter III has been contravened, and secondly, he must in addition aver how his interest is being or is likely to be affected by such contravention. It is settled law, that this Constitutional Court division of the Supreme Court, acts on pleadings and supporting affidavits, and not on oral evidence as when exercising original civil jurisdiction. Hence it is imperative that a Petitioner avers the two ingredients of Article 130(1) concisely and with sufficient particularity. In the present Petition, it is averred in paragraph 9 that the act of the 1st Respondent in fixing the dates of the election "amounts to a contravention QL is a likely contravention of Article 79(1) (2) read with Article 81(1) (a) of the Constitution". It is further averred in paragraph 10 that the Petitioner "as Leader and President of the Seychelles Democratic Party he has an interest in the subject matter of the petition and that the petition is being made in good faith". Paragraph 9 does not satisfy the requirements of Article 130(1), and the averment in paragraph 10 is based on Rule 6(1) of the Supervisory Jurisdiction of the Supreme Court, and not Article 130(1} of the Constitution for a Constitutional redress by this Court. In the case of Tong v. Taniera & Or (1987) L. R. C. I. the Leader of the Christian Democratic Party of Kiribati was faced with a similar situation. Section 88(1) of the Constitution of Kiribati, is identical to Article 130(1) of our Constitution and contains, both limbs. The Petitioner had sought a declaration under Section 88(2) of that Constitution that Section 77(2) thereof had been contravened in that the speaker of the National Assembly (the Maneaba) upon being advised to summon the Assembly by one third of the members of that Assembly had refused to do so. In his affidavit, the Petitioner, deponed that he was - 'the duly elected member of the Constituency of Urban Tarawa and that he is the leader of the Christian Democratic Party of Kiribati. It was held, inter alia that- "To succeed in an action for declaration under Section 88 (1), a plaintiff must establish that his interests are being or likely to be affected by the contravention of any provision of the Constitution that is alleged. In this case, no argument has been presented on behalf of the plaintiff, showing how his interest has been or likely to be affected by the breach of Section 77(2) of the Constitution as alleged". Accordingly, the Court held that the plaintiff was not entitled to the reliefs claimed in the case. In the case of the Seychelles National Party v The Govemment of Sevchelles (Cons. Case no 6 of 1999,), (2001) 2 L. R. C. 178, (2002) 3 CHRLD 259, the Petitioner Political Party, claimed that the 1st Respondent, (President) by appointing seven Public Servants and the wife of the President to the Board of the Seychelles Broadcasting Corporation violated Article 168 of the Constitution, which required that the Public Broadcasting Media be free from State control and influence. It was also averred that the Board, for purposes of Article 168 could not be seen to be an independent body. I, sitting as the Presiding Judge, with Juddoo J and Karunakaran J concurring held inter alia that- "1. Interpreting Article 130(1) in the light of the burden of proof requirement laid down in Article 130(7) suggests that a Petitioner may succeed by alleging a risk of a Constitutional contravention. However to establish a prima facie case and shift the onus on to the State, the risk must be a real one. 2. The S. N. P., by claiming that "there can be no guarantee" that Public Servants will remain outside the influence of the State, has failed to establish a real risk of contravention, but only a speculative possibility which is inadequate to ground A complaint under Article 130". In the case of Kenilorea v. Attorney General (1986) L. R. C. 126, the Leader of the Opposition of the Parliament of Solomon Islands had made an application under Section 83(1) of the Constitution (identical to Article 130(1) of our Constitution) seeking a declaration that Sections 4 and 5 of the Price Control Act 1983 were void as being contrary to Section 77(1) ofthe Constitution. It was held inter alia that "Where an application was made under Section 83(1), the Applicant should be required to put before the Court the circumstances of the detriment or likely detriment to him giving rise to his personal interest, so that the Court would have a concrete case to consider. It was unlikely that the framers of the Constitution intended that the Court should be asked to give an advsory opinion on an abstract question on a Constitutional matter". In a somewhat similar case, Thomas & Ors v. Olufosoye (1986) L. R. C. 636, the Petitioners, who were all communicants of the Anglican Communion in Lagos sued in a representative capacity of the laity of that Communion, objecting to the appointment of a new Bishop. It was held inter alia that the Petition contained a simple averment that they were Communicants of the Diocese and representatives of the Laity, and therefore was insufficient. The Court further held that to establish locus standi, it should have indicated what rights or obligations such Communicants had as such Communicants, and how these rights or obligations had been breached by the appomtment of the new bishop. In Seychelles, Rule 5 of the Constitutional Court Rules require that a Petition filed under Article 46 (1) or Article 130 (i) shall contain a concise statement of material facts. Where no such facts have been disclosed in the Petition, this Court cannot take judicial notice of facts and give or make a decision on an abstract constitutional issue. In the present case, the 'Petitioner has, in relation to the 1st limb of Article 130 (1) alleged in paragraph 9 of the Petition that the act of the 1st Respondent "amounts to a contravention of Article 79 (1) (2) read with Article 81 (1) (a) of the Constitution, and at the same time, an uncertainty is expressed by the use of the words "or a likely contravention". As was held in the S. N. P case (supra), a speculative possibility or an uncertainty pleaded, does not satisfy the requirement contained in the 1st limb of Article 130 (1). Articles 46 (1) and 130 (1) grant relief only to the person whose interest has been affected by a contravention of any constitutional provision. Article 32 of the Indian Constitution on the other hand permits a liberalization of the Rule of locus standi to include any public spirited individual or association to vindicate the cause of justice. As regards the 2nd limb of the Article, the Petitioner ought to have averred in the Petition and the supporting Affidavit how his interest is being or is likely to be affected by the alleged contravention. This Petition has been filed in the personal capacity of the Petitioner as Leader of a political party, and not by a registered political party intending to contest the General Election announced by the 1st Respondent. The mere averment in paragraph10 of the Petition that as Leader and President of the Seychelles Democratic Party he has an interest in the subject matter of the Petition is insufficient for purposes of Rule 5. The Petition should have been filed in a representative capacity of his political party. The Rules of Court contained in S. I. 33 of 1994 have been made pursuant to the relevant enabling provisions of the Constitution. Enactments Regulating Procedure in Courts are usually construed as imperative, and not merely directory. Maxwell on Interpretation of Statutes (11thEdition) explains this Rule, at page 367, thus- "If for instance, a right of appeal from a decision be given with provisions requiring the fulfillment of certain conditions, such as giving notice of appeal and entering into recognisances, or transmitting documents within a certain time, a strict compliance would be imperative, and non compliance would be fatal to the appeal." This Court, in the constitutional case of Hydra III Maritime Company v. The Republic of Seychelles (Case No.8 of 1994) Ruling on a preliminary objection on the ground that the application had been filed out of time prescribed in Rule 4 (3) held that - "This Court has on several occasions held that the stipulation of the time limit of "30 days of the occurrence of the event" was mandatory. In exercising the discretion under rule 4 (4), the Court has to be conscious that Rule 4 (2) is not merely a Rule of Procedure but more basically a statutory bar designed to prevent frivolous and vexatious applications of persons, so that the legislative process of the Government is not unnecessarily hampered." Although, in the present case, the issue of a time limit is not involved, yet, the mandatory nature of Rule 5 subsists, and consequently the Petition fails for failure to satisfy the basic elements of Article 130 (1) under which it has been filed. The learned Attorney General submitted that as what was involved was an interpretation of certain Articles of the Constitution, the Court would be called upon to consider only matters of law and not facts. It was on the common agreement reached by the parties on this matter that the Court proceeded to hear submissions of Counsel. The nub of the Petitioner's contention is that when the President dissolves the National Assembly pursuant to powers vested in him in Article 110, only a By-Election can be held, and not a General Election as proposed. Mr. Elizabeth, learned Counsel for the Petitioner - , 'submitted that a dissolution under Article 110, triggers the provisions of Article 79 (2) of the Constitution. That Sub Article is as follows - "(2) Where a person ceases to be a directly elected Member of the National Assembly under Article 81, a By-Election shall be held within thirty days of the person ceasing to be a Member of the Assembly unless the cessation occurred within three months before the beginning of the period within which a General Election is required to be held under Clause (1In. Article 79 (1) provides that - "79 (1) A General Election shall be held during the period starting at the beginning of the fifty-seventh month and the ending at the end of fifty-ninth month of a session of the National Assembly." This Sub Article is not a definition of a general election. It only postulates the maximum period the Assembly could function. General Election can he held pursuant to dissolutions under Article 110, or 111. Admittedly, the dissolution of the National Assembly under Article 110 was premature, but constitutionally valid. The Petitioner, who is the Leader and President of a registered political party, cannot be said to be ignorant of the difference between a General Election and a By-Election. No one disputes that a "By Election" is "a special Election held between General Elections to fill a vacancy as for a parliamentary seat" or "a Special Election held to fill a political office that has become vacant between General Elections." The C present constitutional Petition has been filed due to an apparent discrepancy in the wording of the relevant provisions of the Constitution. Article 106 (1) provides an exception to Article 79 (1) in respect of the "lifetime" of the sessions of the National Assembly. That Article reads thus - "106 (1) A session of the National Assembly shall begin on the first meeting of the Assembly summoned under Article 107, and unless sooner dissolved under Clause (2) (g), Article 110 or Article 111, continue for a period of five years thereafter." Sub Article (2) provides that - "(2) The National Assembly shall stand dissolved - (a) Subject to Clause (3), on the day next following the end of the period of five years referred to in Clause (1); (b) where a General Election is held before the period of five years referred to in Clause (1), on the day next following the declaration of the results of the Election; or (c) in accordancewith Article 110 or Article 111." Article 111 provides for the dissolution of the National Assembly by its own Resolution. It reads - "Where the National Assembly at a meeting summoned for this purpose resolves by the affirmative votes of not less " than two-thirds of the number of Members of the Assembly that the Assembly be dissolved, the National Assembly shall stand dissolved on the day next following the passing of the Resolution." Mr. Elizabeth relied on the provisions of Article 81 (1) (a), in contending that when a person ceases to be a Member of the National Assembly upon a dissolution, by virtue of Article 79 (2) only a By-Election can be held. Taking that argument to a logical conclusion, as Article 79 (2) deals with a person who is a directly elected Member of the Assembly, upon a dissolution under Article 110, there should be 25 By-Elections to elect 25 Members to the respective electoral areas. What then happens to the proportionally elected Members? The learned Attorney General referred the Court to Article 78 which provides that the National Assembly shall consist of (a) such number of Members directly elected, and (b) such number of Members elected on the basis of the Scheme of Proportional Representation specified in Schedule 4 of the Constitution. He submitted that the Petitioner's contention if accepted, would contravene Article 78 as under Schedule 4, proportionally elected Members could be nominated only upon a General Election. Mr. Elizabeth, in reply maintained his contention and submitted that the Constitution has not provided for such a situation, and that it could only be cured by an amendment to the Constitution. The learned Attorney General, with whose contentions, Mr. France Bonte learned Counsel for the 3rd Respondent abided, submitted that Article 79 (2) applies where a person ceases to be a directly elected Member under Article 81, and not when the entire National Assembly consisting of both directly elected and proportionally elected Members have ceased to be Members upon a dissolution under Articles 79 (1), 110 or 111. He further submitted that provisions of the Constttution cannot be interpreted in a way that it would , lead to an absurdity, and hence called upon the Court to give a fair and liberal meaning to those provisions as required in paragraph 8 (a) of Schedule 2 of the Constitution. As regards the announcement of dates of the Election by the 1st Respondent, he submitted that those dates have been fixed under Section 12 (2) of the Elections Act (Cap.68A) which provides that a General Election shall be held - "(C) During the period of three (3) months beginning with the date the Assembly would stand dissolved under Article - 110 or Article 111 of the Constitution." . Sub Section (3) provides that a By-Election shall be held during the period specified in Article 79 (2) of the Constitution. The learned Attorney General further contended that pursuant to Article 78 the directly elected Members of the National Assembly shall be elected in accordance with the Constitution, and subject to the Constitution, by an Act. He therefore submitted that that Act is in conformity with the constitutional provisions. Mr. Elizabeth however maintained his submission that a dissolution under Article 110 entailed a By-Election and not a General Election, and that hence, under Article 79 (2) such Election has to be held within 30 days thereof. He further submitted that Section 12 of the Act is inconsistent with the Constitution. There is a presumption in favour of constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a transgression of constitutional principles. The language of a statute should be construed in the light of the presumption of constitutionality (A. G of Gambia v. Momodu Jobe (1984) A. C. 689 at 702. Chapter VI of the Constitution provides for three types of dissolutions of the National Assembly. (1) At the end of five years, in which case a General Election shall be held (Article 79 (1) (2) Under Article 110, by the President, for any reason which he considers it to be in the national interest to do so. (3) Under Article 111 dissolution by the affirmative votes of not less than two thirds of the number of Members. The effect of all three dissolutions is that both directly elected Members and proportionally elected Members cease to be Members of the National Assembly upon the events specified in those respective Articles. Article 81 specifies the various circumstances under Sub Paragraphs (a) to (J), when "a person" ceases to be a Member of the National Assembly. For purposes of the present matter, Article 79 (2) provides that where a directly elected Member ceases to be a Member of the National Assembly under Article 81, a 8y Election shall be held within thirty days. The exception to that requirement, as contained in the same Sub Article is that, if such cessation occurred within 3 months before the beginning of the period within which a general election is required to be held under Article 79(1), then, the vacancy will be filed at the general election. Hence where for instance, any member resigns under Article 81(1) (b) or ceases to be a citizen of Seychelles under (c), and such event occurred within 3 months before the beginning of the period within which a general election has to be held under Article 79(1) then, instead of a By-Election, the vacancy will be filled by a member elected at such general election. In my view, Article 79(2) refers to Article 81 in general. It is the Petitioner who has selected Sub Article (1) (a). Article 81 merely gives the various situations and circumstances in which "a person" ceases to be a member. Obviously such member, whether directly elected or a proportionally elected member ceases to be a member on the dissolution of the Assembly under Article 79(1), Article 110 or Article III. The term "a person" in Article 81(1) cannot be interpreted as being applicable when all the members of National Assembly ceased to be members upon dissolution and their seats become vacant. Article 79(2) and Article 81(1) are both individualistic and not collective in nature. Article 79(2) prescribe the event upon which a By-Election should be held. Article 81 prescribes the events in which a member of the Assembly ceases to be a member causing a vacancy in his seat. Article 81(1) (a) is one of the ways in which such individual vacancy can occur. Hence that Sub Paragraph cannot be relied on to contend that a By-Election should be held under Article 79(2}, when the whole Assembly has been dissolved under Article 110. In maintaining that a dissolution under Article 110 entails By-Elections and not a general election, the Petitioner relied on the definition of "general election" in Schedule 4, which states that a general election means a general election under Article 79(1). He therefore submitted that the Constitution provides for a general election only in the circumstances envisaged in Article 79(1), that is, at the end of 5 years as provided in Article 106(1). If Article 106(1) provides an exception for "sooner dissolution" and Sub Section (2) (c) unambiguously states that the National Assembly shall stand dissolved in accordance with Article 110 or Article III as well, the submission of the Petitioner that a general election can only be held under Article 79(1) would not only result in an absurdity, but will also create a Constitutional crisis. With respect, Mr. Elizabeth's contention is based on an error in interpretation. According to Beal's Cardinal Rules of Legal Interpretation Page 340 - "An interpretation Clause should be taken as declaring what may be comprehended within the terms where the subject matter and circumstances require that it should be so comprehended". The term "general election" has been defined under the subject matter of Schedule 4, namely "the proportionally elected members" and the method of their appointment. ../<.. .. , .._ .' Paragraph 2 thereof provides that a Political Party which has nominated a candidate in the general election may, in accordance with this Schedule, nominate the proportionately elected members. Hence although the definition limits the nomination of such members after a general election held under Article 79(1), it must be comprehended within the terms set out in Article 78(b) under which Schedule 4 has been enacted, namely, the composition of the National Assembly. In that context it should be given a purposeful, fair and liberal interpretation to include all circumstances of electing members of the legislature. As was held in the case of Boodram v. Attorney General of Trinidad & Tobago (1996) 1. CHRD-58 "Although the text of the Constitution could not be ignored, the Courts should seek guidance in its spirit rather than from its inevitably imperfect language. The Constitution of any country was not a sterile and lifeless document but an organic and living instrument". It was also held in the case A. G. of Gambia v. Jobe (1985) L. R. C. 556, 565, British Coal Corporation v. The King 1935) A-C. 500,518, James v. Commonwealth of Australia (1936) A-C. 578, 614 Mtikila v. Attorney General (1996) 1. CHRLD II, and Njoya & Ors v. Attorney General (2005) 5. CHRLD. 320, that provisions of a Constitution has always to be given a broad and purposive construction, and should not be interpreted restrictively as an act of Parliament. Hence on the basis of these authorities and paragraph 8(a) of Schedule 2 of our Constitution, I hold that for purposes of Article 78, the National Assembly should be composed of directly elected members elected under the provisions of the Elections Act (Cap 68 A), and proportionately elected members nominated under Article 78(b) read with Schedule 4. After the first elections and first sittings of the National Assembly, for which specific provisions were made in part II Schedule 1 of the Constitution, subsequent appointments of all the members of the Assembly become due only upon dissolution, either under Article 79(1) by iffIuxion oftime, or under 110 or 111. Hence the Petitioner's contention that in the absence of specific provisions to hold general elections upon a dissolution under Article 110, the term "a person" in Article 79(2) should be read as including all the directly elected members of the Assembly ceasing to be members and that hence 25 By-Elections should be held within 30 days thereof becomes illogical and absurd. It would also be a misinterpretation of the Constitution construed as a whole. In giving the Constitution a fair, liberal and purposive interpretation, Section 81(1) (a) must be saved from the operation of Article 79(2) for the latter provision to be meaningful. Hence a By-Election under Article 79(2) would arise, within 30 days of a directly elected member ceasing to be a member, by resignation (Sub Paragraph (b), ceasing to be a citizen of Seychelles (Sub Paragraph (c)), absence without permission (Sub Paragraph (d)) disqualification (Sub Paragraph (e), becoming a party to a contract with the government (Sub Paragraph (f), being elected President or Vice President or a Minister (Sub Paragraph (g), in the case of a proportionally elected member being replaced by another, ceasing to be a member of that party or the Political Party is dissolved or ceases to exist (Sub Paragraph (h), a directly elected member ceasing to be a member of his Political Party and hence a By-Election becomes necessary (Sub Paragraph (i), an independent member becoming a member of a Political Party (Sub Paragraph 0). Accordingly I declare that the announcement and publication of the dates of the general election, namely 10th, 11th and 12th May 2007 by the 1st Respondent, the Electoral Commissioner pursuant to Section 12(2) (C) of the Elections Act (Cap 68 A) do not contravene Article 79(2) read with Article 81(1) (a) as alleged by the Petitioner. The Petition is accordingly dismissed. ............~ ..... A. R. PERERA JUDGE (PRESIDING) Dated this 3rdday of April 2007 IN THE CONSTITUTIONAL COURT OF SEYCHELLES Mr. Paul Chow (Leader and President of the Democratic Party Of Premier Building, Victoria, Mahe) Petitioner VIS Hendricks Gappy (Electoral Commissioner of Aarti Chambers, Of Mont Fleuri, Mahe) ,....,,, ' The Attorney General Of National House, Victoria, Mahe Mr. France Albert Rene (President of SPPF, Maison Du Peuple, Victoria, Mahe) Mr. Wavel Ramkalawan (Leader of SNP, Arpent Vert, Mont Fleuri, Mahe) 1st Respondent 2nd Respondent 3rd Respondent 4th Respondent Mr. F. Elizabeth for the Petitioner Mr. A. Fernando & Mr. E. Chetty for the 1st and 2nd Respondents Mr. France Bonte & Mr. J. Renaud for the 3rd Respondent Mr. A. Derjacques for the 4th Respondent D. Karunakaran, J. JUDGMENT The Petitioner Mr. Paul Chow is the Leader and President of the Seychelles Democratic Party, whereas the 3rd Respondents Mr. France Albert Rene the President of the Seychelles Peoples Progressive Front and the 4th Respondent Mr. Wavel Ramkalawan, the Leader of the Seychelles National Party. All these parties are Political Parties duly registered under the Political Parties (Registration and Regulation) Act, 1991, in the Republic of Seychelles. The petitioner in this matter seeks this Court for a declaration that the recent announcement and publication of the dates for the "general election" of the National Assembly by the 1st Respondent namely, the Electoral Commissioner Mr. Hendricks Gappy contravenes Article 79 (1) (2) and Article 81 (1) (a) of the Constitution of Seychelles and is therefore null and void. Indeed, Article 79 (1) (2) of the Constitution reads thus:- "79 (1) A general election shall be held during the period starting at the beginning of the fifty-seventh month and ending at the end of the fifty-ninth month of a session of the National Assembly. (2) where a person ceases to be a directly elected member of the National Assembly under Article 81) a by-election shall be held within thirty days of the person ceasing to be a member of the Assembly unless the occasion occurred within three months before the beginning of the period within which a general election is required to be held under clause (1)" The marginal notes of this Article reads "General election and by- election" ~ Be that as it may, Article 81 (1) paragraphs (a) - U) of the Constitution reads as follows: "81 (1) A person ceases to be a member of the National Assembly and the seat occupied by that person shall become vacant - (a) on the dissolution of the Assembly; (b) if the person by notice in writing to the Speaker resigns; (c) if the person ceases to be a citizen of Seychelles; (d) if the person is absent without the permission .... of the Speaker ... Etc. (e) if any circumstances arise which, .... Cause that person to be disqualified for Election as a member; (f) ..... if a person becomes party to a contract with the Government for or on account of any public service etc. (g) if the person is elected President or appointed a Minister: (h) if, in the case of a proportionally elected member, the person ceases to be a member of the political party etc. (i) if, in the case of a directly elected member .... the person notified that he ceased to be a member of the political party; (j) if, in the case of a person ..elected as an independent member ...notifies the Speaker in writing etc. » It IS not in dispute that the petitioner has applied to this Court for a Constitutional redress in this matter, in terms of Article 130(1) of the Constitution which reads thus: "A person who alleges that any provisions of this Constitution, other than a provision of Chapter III, has been contravened and that the person's interest is being or likely to be affected' by the contravention may, subject to this article, apply to the Constitutional Courtfor redress" , y I,-, The case of the petitioner as per his averments in the petition is as follows: On the 12th March 2007 the President of the Republic Mr. James Michel notified the Speaker of the National Assembly of his intention to dissolve the National Assembly. On the 20th March 2007 the President in his State of the Nation Address dissolved the National Assembly by Proclamation and called for a General Election to be held. The said Proclamation was published in the Official Gazette on the 20th March 2007. On the 26th March 2007, the 1st Respondent announced that election shall take place on the 10th, 11th and 12th May 2007. The petitioner was verily informed that the dates of the election will be published and Gazetted on 2nd April 2007. According to the petitioner, the said election dates are unconstitutional in that, the election would be held fifty (50) days after the said proclamation and the 1st Respondent can only hold election within 30 days of the said proclamation in law. Further, the petitioner has averred in the petition that the act of the 1st Respondent mentioned above amounts to a contravention or a likely contravention of Article 79 (1) (2) read with Article 81 (1) (a) of the Constitution of Seychelles. Besides, it is averred that as Leader of the Seychelles Democratic Party, the petitioner has an interest in the subject matter of the petition and that the petition is being made in good faith. In the circumstances, the petitioner prays this Court for a declaration first above mentioned. The respondents before filing a defence in this matter raised preliminary objections to this petition in terms of Rule 9 of the Constitutional Court Rules. The objections were based on points of law as well as on facts pleaded in the petition and the affidavit deponed by the petitioner in this matter. The respondents submitted in essence, that this petition is not tenable either in law or on facts and liable to be dismissed in limine for the reasons, which may broadly be summarized, marshaled categorized for the sake convenience, into three grounds as follows: - Ground 1 Undisputedly, the petitioner has applied to this Court for a Constitutional redress based on Article 130(1) of the Constitution. In order for the petitioner to seek a remedy invoking this particular Article, he must show to meet two requirements in law as stipulated thereunder (vide supra). They are: (i) The allegation must be that a particular provision of the Constitution - other than a provision of Chapter III - has been "contravened" as opposed to "likely to be contravened". In other words, the grievance should constitute an "actual contravention", not merely a "likelihood of contravention"; and (ii) the petitioner's interest is being or is likely to be affected by the said contravention. Accordingto the respondents, the instant petition does not contain any pleading or statement of the material facts that are necessary to meet the above two legal requirements. Failure of meeting those requirements is fatal to the petition as it has no basis to stand in law in terms of Article 130(1)of the Constitution. Besides, all the material facts relevant to the allegation must be pleaded in the petition. This is mandatory in terms of Rule 5 (1) of the Constitutional Court Rules, 1994, which reads: "the petition shall contain a concise statement of the material facts .... " In the circumstances, the Honorable Attorney General Mr. A. Fernando argued that the instant petition neither meets the legal requirements under Article 130(1)of the Constitution nor does it meet the pma:dural requirement stipulated under Rule 5 (1) of the Constitutional Court Rules, 1994. Therefore, he urged the Court to dismiss the petition. Ground 2 It was further submitted by the Attorney General that this petition is misconceived in law in that, Article 79 (2) (quoted supra), which the petitioner relies upon and alleges to have been contravened by the act of the Electoral Commissioner, is not an article that is relevant or applicable to the case on hand. This particular Article is relevant and applicable only to a matter that involves 'a by-election" not "a general election" as is the case in the instant matter. According to the Attorney General, the election in question that is, the one the Electoral Commissioner has now announced to take place on the 10th, 1ph and 12th of May 2007, consequent upon the dissolution of the National Assembly by the President of the Republic is "a general election" not "a by-election" as misconstrued by the petitioner.\ Article 79(2) therefore, has no relevancy and has nothing to do with the forthcoming general election. The Attorney General also drew the attention of the Court to the lexical meanings of these two terms to wit: "By-election"and the "General Election" as defined in the Oxford and the Chambers Dictionaries. He thus illustrated the difference between these two terms used in the Constitution. Moreover, he submitted that this particular clause that is, clause (2) of Article 79 applies only to those persons, who fall under the category of the "directly elected members", not to those who are "elected on proportional representation". This is very evident from a plain reading of this Article, which runs thus: "Where a person ceases to be a directly elected member of the National Assembly ... a by-election shall be held... within 30 days of the person ceasing to be a member of the Assembly ... » rz: ,.... Iii Moreover, it is the submission of the Attorney General, that the Electoral Commissioner has announced the dates for the "general election" in accordance with the provisions of the Constitution and the Elections Act. Mr. Fernando therefore, contended that the petitioner has misconstrued the relevant Articles in the Constitution and has thus filed this petition based on a misconception of contravention and constitutional remedy. Hence, according to Mr. Fernando the petition is misconceived and so untenable in law. Ground 3 It was also the contention of the respondents that the instant petition is frivolous and vexatious. It is an attempt by the petitioner to defeat and delay the electoral process that has already been set in motion for the general election, which the whole country is earnestly looking forward to. Accordingto the respondents, it is also an abuse of process by the petitioner to file the instant petition without any substance in law or facts but with many a defect in the pleading. This is evident from the inconsistencies, contradictions, inaccuracies and illogicalities found in the averments made in the petition as well as in the statements deponed in the affidavit filed by the petitioner.:-Furthermore, the Attorney General went on to read out those I defective averments and the statements pinpointing the defects and the inaccuracies in this respect. At this juncture, it is pertinent to mention, the learned counsel for the petitioner Mr. Elizabeth, however, having noted those defects, swiftly with the leave of the Court, carried out a number of amendments to the pleadings in the petition and to the statements made in the affidavit. According to Mr. Elizabeth, those defects occurred in the pleadings due to clerical or typographical error. Be that as it may, consequent to those amendments I note, most of the grave defects such as "the announcement was published in the Official Gazette on the 2nd April 2007", "the Electoral Commissioner is obligated ...to hold the said election 30 days after the said Proclamation" found in the pleadings and in the affidavit were drastically rectified. In passing, I would like to observe here that the arguments advanced by the Attorney General relying on those defects obviously, became a futile exercise. In any event, it is the contention of the respondents that the present petition is frivolous and vexatious. It is an abuse of process of the Court by the petitioner as there is no ground or substancein the petition. In the circumstances, all the respondents except the 4th one represented by Mr. A. Derjacque, endorsed and adopted the submissions made by the Attorney General and moved the Court to dismiss the petition accordingly. On the other hand Mr. F. Elizabeth, Learned Counsel for the petitioner resisted this motion and disputed all the grounds of objections raised by the respondents including their arguments canvassed on the merits. The reply submission of Mr., Elizabeth in this respect may be summarized and categorizedin the same numerical order of the grounds, as follows:- Reply to Ground 1 As regards the first ground of objections raised by the respondents Mr. Elizabeth contended that the petition sufficiently contains the necessary pleadings and the statement of the material facts that are necessary to satisfy the said two ingredients or legal requirements contemplated under Article 130(1)of the Constitution. Besides, according to him, all the material facts relevant to the allegation of contravention are sufficiently and properly pleaded in paragraph 9 and 10 of the petition. The petition, he contended, has the necessary basis to stand in law in terms of Article 130(1) of the Constitution. Besides, all the material facts relevant to the allegation have also been pleaded in the petition in compliance with the Rules of the Court. Hence, Mr. F. Elizabeth contended to the effect that the instant petition does satisfy the legal requirements under Article 130(1)of the Constitution as well as meet the procedural requirement stipulated under Rule 5 (1) of the Constitutional Court Rules, 1994. Therefore,he prayed the Court to dismiss the objections raised by the respondents and allow the petition accordingly. Reply to Ground 2 Coming back to the second ground, Mr. Elizabeth contended that the Article 79 (2) (quoted supra), which the petitioner relies upon to ground the petition, is relevant and applicable to the case on hand as it involves 'a by election". According to Mr. Elizabeth's interpretation, Article 79(2) should be read and construed in conjunction with Article 81 (1) (a) of the Constitution, which states that a person ceases to be a member of the National Assembly and the seat occupied by that person in the Assembly shall become vacant on ".... -- the dissolution of the Assembly. Article 79(2) states that when a person ceases to be directly elected member of the National Assembly under Article 81, a by-election shall be held within 30 days of the person ceasing to be a member of the Assembly. It is therefore, the interpretation of Mr. Elizabeth that those who ceased to be members of the Assembly consequent upon its dissolution in terms of Article 81(1) (a), fall under the same category of persons defined under Article 79 (2) of the Constitution. Therefore, since the Assemblywas dissolved before the expiry of its normal life of fiveyears, only a "by-election" shall be held as stipulated under Article 79(2) of the Constitution. Besides, Mr. Elizabeth contended that the term 'a general election" is well defined in schedule 4 to the Constitution, which sates that "general election" means a general election under article 79( 1). In the .,,-.- "ii .~ circumstances, the election announced by the Electoral Commissioner being "a by-election" for all legal intents and purposes, it should be held within 30 days of the proclamation of dissolution. According to the learned counsel, the election in question that is, the one the Electoral Commissioner has now announced to take place on the 10th, 11th and 12th of May 2007, following the dissolution of the National Assembly by the President of the Republic is "a by-election" not "a general election" as misconstrued by the respondents. Article 79(2) is therefore, relevant and applicable to the case on hand. And so, the learned counsel for the petitioner urged the Court to make the declaration and grant the remedy as sought for, in the petition. Reply to Ground 3 As regards the third ground, the petitioner contended that the instant petition is not a frivolous or vexatious one. It has been filed with a bona fide intention to avert the danger of an unconstitutional election being held. Further, it is the submission of the petitioner that it is not an abuse of process, when an aggrieved person petitions the Court seeking a redress for the violation of the Constitutional provisions. For these reasons, Mr. Elizabeth urged the Court to dismiss the objections raised by the respondents and render justice by declaring that the announcement and publication of the dates by the Electoral commissioner contravenes Article 79 (2)and Article 81 (1) (a)of the Constitution is null and void. I meticulously perused the petition, the affidavit filed in support and the relevant provisions of the Constitution and the related laws. I gave a careful thought to the effective submission made by the Attorney General representing the first two respondents. I diligently analysed the eloquent argument advanced by Mr. Elizabeth, learned counsel for the petitioner, in support of his stance on the interpretation of the Constitutional provisions. I willnow proceed to examine the issues raised by the parties in respect of the above three grounds taking them in seriatim and determine the entire case on the merits including the preliminary objection. Analysis of Ground 1 On a plain reading of the entire Article 130, it is very evident as well as interesting to note that Article 130 clause (1) refers only to an "actual contravention" and bears no mention about its likelihood. On the other hand, however, its counterpart if I may say so, Article 46 under Chapter III of the Constitution, and Article 130 clause (6) too, refer to both elements namely, the contravention as well as its likelihood. Therefore, in my considered view, the omission of the term as to "likelihood of contravention'" in Article 130 (1) is a deliberate choice the framers of the Constitution ingeniously made, presumably with intent to discourage busybodies from filing frivolous and vexatious litigations without any substance, based on speculative contraventions. Therefore, when one interprets the term "contravention" under Article 130(1) above, one should read and construe its meaning in the context of this particular Article, which indeed, has restricted the remedy only for an "actual contravention" and not for its "likelihood",reflecting the intention cf the makers of it. Having said that, as rightly submitted by the Attorney General, a petitioner in order to succeed in a petition grounded on Article 130(1) must plead, establish and meet the two legal requirements (stated supra) namely, (i) "an actual contravention" as opposed to "the likelihood of Contravention"; and (ii) the petitioner's interest is being or is likely to be affected by the said contravention. Therefore, it is a sine quo non for a petition filed under Article 130(1)to contain an unequivocal pleading, with concise statement of the material facts to constitute the "actual contravention" of the alleged provision of the Constitution. Likewise, it should also contain an unequivocal pleading to constitute the fact that the petitioner's interest is being or likely to be affected. Undoubtedly, these two ingredients are very material to the case on hand. Be that as it may, in respect of the first requirement (supra), a pleading in the petition as to the mere likelihood of contravention is obviously, not relevant or sufficient to meet that requirement. Besides, such "likelihood" cannot on its own constitute a valid ground to qualify a petition under Article 130 (1) of the Constitution, as was held by this Court (vide its Ruling on the preliminary objections) in the case of the Seychelles National Party vs. the Government of Seychelles and another in Constitutional Court Case No. 6 of 1999. At the same time, as far as the second requirement pertaining to the petitioner's interest is concerned, of course, the mere likelihood of it being affected is relevant and sufficient to meet that requirement. In this particular case, however, there is no pleading at all in the petition in this respect, let alone the aspect of likelihood. Besides, it is evident that the actual contravention is also not pleaded clearly - in unambiguous terms - in the petition. In fact, paragraph 9 of the petition simply reads thus: "... the act of the 1st Respondent here above amounts to a contravention or a likely contravention of Article 79(1) (2) .. " As regards the issue as to the petitioner's interest being affected, Mr. Elizabeth argued that it is duly pleaded in paragraph 10 of the petition, which in fact, runs thus: "The petitioner avers that as Leader and President of the Seychelles Democratic Party he has an interest in the subject matter of the petition and the petition is being made in good faith" Indeed, there is a world of difference between the two concepts namely, (i) the existence one's interest in the subject matter of the petition: and (ii) the existence of an injury to one's interest consequent upon the contravention of a Constitutional provision, other than Chapter III. Obviously, the first concept is nothing but the bedrock of locus standi. This is a well-recognized legal right, generally one should possess over the subject matter, in order to institute a legal proceeding before any Court of law. On the contrary, the second concept relates to a legal injury that one might sustain resulting from an unlawful act committed by another particularly, in contravention of a Constitutional provision, other than Chapter III. Moreover, the former is genenc and belongs to the general principle of adjective law, whereas the latter is specific and forms part of the legal ingredient prescribed under a substantive law. In the present case, the pleading in paragraph 10 of the petition obviously, refers to the legal right - the locus standi namely, the first concept defined supra. But, what is required, for the instant petition to qualify under article 131(1) is the pleading in it, pertaining to a specific injury underlying the second concept defined supra. However, the petition does not contain any pleading on this crucial fact and so I find. With due respect, it seems to me that the petitioner has miserably mixed ........, ""'"' up the ingredients of the provisions under Article 46 with that of Article 130(1)in this respect and has come before this Court with inappropriate and improper pleadings in the petition. In the instant petition, the petitioner has in my judgment, failed to plead the material facts necessary to constitute the actual contravention and the fact that his interest is being or is likely to be affected by the said contravention. I quite agree with the submission of the Attorney General in this respect. Hence, I find that the petition is incompetent and improperly constituted and so untenable in law under Article 130(1)of the Constitution. Analysis of Ground 2 This particular ground argued by the counsel, requires a careful consideration by the Court as it involves three fundamental constitutional questions vide infra, based on the interpretation of various articles of our Constitution and the terminologies used therein pertaining to the election of members of the National Assembly. Before I embark on the task of interpreting the relevant provisions of the Constitution, I observe, the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions, which grow with the growth of the country, its people and their political civility and maturity. The judicial interpretations given to those provisions from time to tim.~~ca~\. to case moving from precedent to precedent indeed, provides the necessary "forceand life" to the Constitution. The significance of its growth is vital not formal. Hence, the interpretation of the Constitutional provisions herein have to be gathered not simply by taking the words and a dictionary but by considering their origin, changing needs of time, society and the line of their growth. If there is no such elixir of judicial interpretation to be administered to the living Constitution as and when required, then there will be no growth. The Constitution will stand still whilst the rest of the world grows up; and that will be bad for both. With this purposive approach in mind, I embark on the interpretation of our Constitutional provisions and determine the issues in this matter. On a plain reading of Article 79(1) of the Constitution, it is so evident ex facie that this article applies to a general election as it reads thus: "A general election shall be held during the period starting at the beginning of the fifty seventh month and ending at the end of the fifty-ninth month of a session of the National Assembly" Likewise,Article 7.9(2) applies to "a by-election"and it runs thus: "where a person ceases to be a directly elected member of the National Assembly under Article 81, a by-election shall be held within thirty days of the person ceasing to be a member of the Assembly ...; To my mind, in view of the above the followingthree fundamental questions arise for determination: (i) Does it mean the election held following the dissolution of the National Assembly by the President (in terms of Article 110), before the efflux of its normalfive-year-life specified in Article 106(1) of the Constitution, is not a general election? (ii) What does then the term "general election" mean and include in our Constitutional context? and (iii) What does the term by-election mean and include? Firstly, it is truism that the definitions of the terms "a general election" and "a by-election" are not provided for in our Constitution. What has indeed, been termed under Schedule 4 as canvassed by Mr. Elizabeth, is the restrictive reference that one should make to the term "general election" to serve a specific purpose under this particular schedule, which governs the formula used for the purpose of determining the number of proportionately elected members vis-a-vis the directly elected ones. It is therefore, important to note the reference of the term in that particular context, which reads thus: Schedule 4 Legislature Proportionately elected Members 1 In this Schedule (underline mine) - general election means general election under article 79 (1) Therefore, the term general election used in this particular schedule to the Constitution, obviously makes only a cross-reference to the one mentioned in article 79(1) for the purpose of identification. It is not a definition of the term "general election" by any stretch. It is highly farfetched to give such an attribute to a reference. It simply says that in this schedule "general election means general election" "Is it a definition of the term "general election?" Certainly, not, as logic dictates. As I see it, however, the Constitution has entrusted this responsibility to the legislature to do the ,/ / necessary for any matter it does not provide for, in order to ensure a true, fair and effective election of members of the National Assembly. This is evident from Article 79 (8)of the Constitution, which reads thus: "A law may provide for any matter, not otherwise provided for in this Constitution, which is necessary or required to ensure a true, fair and effective election of members of the National Assembly" Taking on this Constitutional responsibility the legislature has accordingly, enacted the law, the Elections Act, 1995, which provides for matters, not provided for in the Constitution, and. this is what Mr. Elizabeth misconstrued in his argument as a lacuna in the Constitution. In fact, this Act provides the answers to the questions hereinbefore formulated. Section 12 and 13 of the said Act reads as follows: 12. (1) A National Assembly Election may be - (a) a general election; or (b) a by-election, for the election of the directly elected members of the National Assembly. (2) A general election shall be held - (a) during the period specified In article 79(1) of the Constitution, where the Assembly would stand dissolved by affluxion of the period specified in article 106(1) of the Constitution; or (b) during the period of three (3) months beginning with the date the Assembly would stand dissolved under article 106(3} of the Constitution; or (c) during the period of three (3) months beginning with the date the Assembly would stand dissolved under article 110 or article 111 of the Constitution. (3) A by-election shall be held during the period specified in article 79(2) of the Constitution. 13.(1) The Electoral Commissioner shall, by notice in the Gazette, appoint the date or dates on which a Presidential Election or a National Assembly Election shall be held under this Act. Therefore, by virtue of section 12(2) (c) of the Elections Act, any election held or announced by the Electoral Commissioner following the dissolution of the National Assembly by the President (in terms of Article 110), before the efflux of its normal five-year-life specified in Article 106(1) of the Constitution, by necessary implication,is a general election Jor all legal intents and purposes and so I hold and declare. Needless to say, the life of the National Assembly can be terminated either by dissolution or upon expiry of its normal life. Dissolution puts an end to the life of the Assembly. This, inevitably leads to the election of a new Assembly. The Constitution provides that the President may, for any reason, if he considers it to be in the national interest, dissolve the Assembly before its expiry. It is more common than not, a political occurrence in almost all modern democratic countries, that general elections are held to constitute a new House or legislature before the existing House completes it term or dissolved. Guidance on this question may be sought from Britain where also the Crown has the formal power to dissolve the House of Commons. When the Council of Ministers enjoys the confidence of the House of Commons, a dissolution is usually asked for before the House runs out its full term. Usually, the House is dissolved some time in the fifth year as has now happened in Seychelles and general elections held. At no point of time in the history of the British Parliament, a by-election has ever been held following the dissolution of the House of Commons. The British Prime / Minister thus has a right to go to the polls at a time most favorable to his party politically, when its stock with the electorate is high, without his having to wait for the efflux of the full term of the House. The Prime Minister thus has it within his power to select the most and opportune moment for dissolving the House and holding a fresh poll. Such fresh poll is certainly" a general election", which by no stretch of the imagination be equated to a by-election as Mr. Elizabeth, learned counsel for the petitioner is attempting to do in this matter, by misapplication and misinterpretation of the provisions of our Constitution. In fact, there have been a number of constitutional precedents to this effect from the Western as well as the Eastern Democracies. The nineteenth century in Britain was a period of parliamentary instability, when only on one occasion 1868-1873 Parliament ran for its full course. In 1859 and 1868 dissolutions were granted even when the parliament was only two to three years old. In 1910, the House of Commons was dissolvedjust within a year of its election after its dissolution earlier in 1909. On all those occasions, following the premature dissolution of the House, only "general elections" were held, not by-elections. During the last thirty years, the Indian Parliament has also witnessed several premature dissolutions but all, each time led to only "general election" though it is the largest democratic exercise in the world. For instance, on December 27th, 1970, the President dissolved the Indian Parliament prematurely that was, fourteen months before its full term of 5 years would have run out. Again in 1979, it was dissolved after only two years of its existence. On the 4th December 1997, the House was dissolved within two years of its election.. All those instances, led to only their respective general elections, not by-elections. This is the practice in all modern democratic countries, which have chosen the Westminster System, the parliamentary model of democratic government transplanting the political thoughts and system from English soil. In the light of all the above, I venture to suggest and hold that any election of the National Assembly held consequent upon its expiry or dissolution is a "general election" in the eye of law, provided it is duly announced and held (i) during the period specified in article 79(1) of the Constitution, where the Assembly would stand dissolved by the efflux of its normal five-year-lifeor (ii) during the period of three (3) months beginning with the date the Assembly would stand dissolved under article 106(3) of the Constitution or . (iii) during the period of three (3) months beginning with the date the Assembly would stand dissolved under article 110 or article 111 of the Constitution. Moreover, I hold that any election to fill the vacant seat or seats of the ~ directly elected member or members of the National Assembly, held in the followingcircumstances may be defined as a "by-election". "Where a person who was directly elected ceases to be a member of the National Assembly and the seat occupied by that person in the Assembly becomes vacant due to circumstances falling under any one or more of the paragraphs (b) to U) contained in Article 81 (1) of the Constitution (vide supra) and when such election is held in terms of Article 79(2) of the Constitution, between general elections". In considering all the above, it seems to me that a by-election may be defined in general terms thus: A by-election is a special election as opposed to general, held to fill a political office that has become vacant between general elections. Usually this occurs when the incumbent has died or resigned, but it may also occur when the incumbent becomes ineligible to continue in office, for example because of renunciation of citizenship, absence from the country without permission, a recall or disqualification for membership due to a serious criminal conviction and the like. In fact, these are the special circumstances, defined inter alia, in paragraphs (b) to U) under Article 81 (1)of our Constitution. Having said that I should mention here that the interpretation given by Mr. F. Elizabeth to Article 79(2), 81 and 110, and to the 4th Schedule of the Constitution, with due respect, appears to be highly farfetched. It does not accord with reasoning, the practice and procedural norms adopted by modern democratic countries in their respective parliamentary electoral process. Constitutional provisions should not be read in isolation but in its entire context. For instance, while interpreting article 81, Mr. Elizabeth takes one part only that is, 81(1) (a) in isolation and applies it to article 79(2) turning a blind eye to the other paragraphs under 81 namely, (b) to 0), which are the ones indeed, relevant and applicable to article 79(2). In any event, whenever a constitutional provision come up for consideration, it must be remembered that it is not within human power to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. It may inevitably lead to two or more possible interpretations to the same provision. The English language is not an instrument of mathematical precision. When such situation appears, we cannot simply fold our hands and blame the makers of the Constitution. We must set to work on the constructive task of finding the intention of the makers of it, and choose among all possible interpretations, the one closer to the intention of the framers of the constitution and give a constructive meaning to it. One should not pull the language of the framers of the constitution to pieces and make absurdity of it, by giving a destructive meaning to the provisions. The argument advanced by the Learned Counsel givinga destructive meaning to the constitutional provisions in this respect, does not appeal to me in the least. Were I to accept Mr. Elizabeth's submission and his interpretations so to say "misinterpretations", I would have to, not only import additional words in those articles of our Constitution, but also would have to amend Section 12 and 13 of the Election Act, 1995. Unfortunately for the petitioner, no judge is empowered to do as this Court thereby would legislate rather than interpret the law. Analysis of Ground 3 On the question of the alleged abuse of process of the Court, one should note that it is a serious allegation made against a party to any litigation. In such cases, the Court has to be satisfied that the party against whom such allegation is made, has in fact, acted with malice and impropriety in instituting the impugned legal proceeding in order to obtain an unfair advantage over an opponent or a situation. In dealing with abuse of process arguments the Court need to consider, which category the alleged abuse of process falls into and the proximity and severity of the injury the opponent or other suffers or likely to suffer due to such abuse. Is the proceeding in question wanting in bona fides? Is it frivolous, vexatious or oppressive? Obviously, each case should be decided on the basis of its own facts and particular circumstances. The Court cannot and should not act on guesswork in this respect and condemn a party for a suspicion of abuse of process. In the present case, the petitioner contended that the instant petition is not a frivolous or vexatious one. It has been filed with a bona fide intention to avert a danger of electing a "National Assembly" in contravention of the Constitution. Incidentally, I note, according to Mr. A. Derjacques, learned counsel for the 4th respondent, one may challenge the constitutionality of the Assembly even after the election. This situation, Mr. Derjacques stated, the Court should prevent from happening by determining this petition. I quit agree with Mr. Derjacques' contention and concern in this respect. Prevention is always better than cure. Furthermore, the petitioner contended that it is not an abuse of process, when an aggrieved person petitions the Constitutional Court seeking a redress for the violation of the Constitutional provisions. Having regard to all the circumstances of this particular case, I find that the petitioner has come before this Court in this matter, presumably, maybe with good intention but obviously without taking a sound legal advice. In the circumstances, I quite agree with the submission of Mr. Elizabeth in that, the instant petition before the Court is not frivolous or vexatious. There is no abuse of process of the Court by the /', petitioner in this matter and so I hold. Hence, I decline to uphold the submission of the Attomey General under ground 3 supra. In the final analysis, I find the preliminary objections raised by the respondents and their submissions made on the merits under ground 1 and 2 in this matter are valid and sustainable. I uphold them accordingly. For the reasons stated hereinbefore, I find and conclude that the petition before this Court is not maintainable either in law or on facts. The petition is misconceived, incompetent and devoid of merits. I therefore, dismiss the petition accordingly. I make no order as to costs. D. Ka nakaran Judge Dated this 3rd day of April 2007 ,. , ~: IN THE CONSTITUTIONAL COURT OF SEYCHELLES PAUL CHOW (Leader and president of the Democratic party) Petitioner VS. 1. HENDRICKS GAPPY (Electoral Commissioner of Aarti Chambers) 2. THE ATTORNEY GENERAL 3:\MR. FRANCE ALBERT RENE (President of the Seychelles People's Progressive Font (SPPF) 4. MR. WAVEL RAMKALA WAN (Leader of the Seychelles National Party (SNP) Respondents Constitutional Case No.3 of 2007 CORAM: A. R. Perera (presiding), D. Karunakaran, J & D. Gaswaga, J Mr. F. Elizabeth for the Petiti6ner Mr. A. Fernando for the 1st and 2ndRespondents Together with Senior State Counsel - Mr. E. Chetty & State Counsel Mr. C. Andre Mr. F. Bonte and Mr. J. Renaud for the 3rd Respondent Mr. A. Derjacques for the 4th Respondent JUDGMENT OF GASWAGA, J I have had the opportunity to read in draft the judgments of Perera, J (Presiding) and Karunakaran, J. I am in agreement with Perera, J's findings on Article 130(1) with regard to locus standi of the petitioner and also his interpretation of Article 79(1) and (2) as read together with Article 81(l)(a) of the Constitution. Accordingly, I agree with both Perera, J and Karunakaran, J that the petition should be dismissed. !r. D. GASWAGA JUDGE Dated this 3rdApril, 2007.