Mancienne v Government of Seychelles (SCA 10 of 2005) [2005] SCCA 10 (20 May 2005)

;" . • (1¥y • c- , iN 'fIlE SEYL:l~J ,L,,>, ')JUKf,Oj' APPEAL -_ ---_______ ' .-'/'---' -- In the matter between- / MR. ROGER MANCIENNE (I,:c.litorof Rcgar Newspaper) - Appellant And THE GOVERNMENT OF SEYCHELLES - Respondent SC:\ No: 10 of 2004 -----------------~----------------~--------- Before: RAMODIBEDI, P., BWANA, J. A~,HODOUL, J. A. Hearing on: 3 May 2005 . Iudgment delivered on: 20 May 2005 ' JUDGMENT RAMODIBEDI, P. [1] The question which lies at the heart of this appeal from contempt proceedings before Alleear C.1 is a fundamental one and no doubt one that strikes at the very roots of the rule of law itself: ' does a ,person have a right,_ either at common law or under the Constitution of Seychelles ("the Constitution"), ' to ignore or defy an . , order of a Supreme Court Judge on the ground that it is void or illegal and therefore not binding on him? outset that just such a situation following circumstances: It will be noted at the . has arisen In this case in the .- [2J' On 27 October 2004, R;naud ACJ in the Supreme Court mero motu issued an interim injunction against the Appellant in these terms:- "On its oz.vnmotion this Court issues this Order of Injunction ordering end preventing the Editor of "Reqar" Newspaper from puNishing the contents and purports in whole or in part ofa letter dated 19th October 2004 addressed to the Chief Justice' by the three Judges of the Supreme Court. I believe that the publication of such contents and purports letter wi!{ be prejudicial to the best interest of and proper functioning of the Judiciary of Seychelles. This Order shall remain inforce until furtlier order of this court", [3] It is common cause that, in defiance of this court order, the Appellant published or caused to be published in the Regal' Newspaper, issue Vol. 13, No. 40 dated 29 October 2004 the letter _in question, [4J Consequent upon this publication the Appellant f::ce(~ contempt of court proceedings before Alleear CJ on 7 December 2004·, The learned -Chief Justice found him "guilty of contempt (dO court [or having disobeyed the order mode by Mr. Justice B. Renaud on the 2.'1' .. . ('tOOL 1·, 20()4 . ' [5] On 9 December 2004 the learned Chief Justice sentenced the Appellant to a tine of R40,OOOor 30 days imprisonment in default of payment. l61 The Appellant 11d:- appealed to .this Court on the follow. .lg grounds:- , ) "(a) The Honourable Judge erred in law in failing to refer the case' for Contempt of Court to the Constitutional Court of Seychelles as per Article 46 (7) of (Cap 42). (b) The Honourable Judge erred in law in failing to hold that the ex-parte interim order cf Justice Renaud made on the 2'jh day of October 2004 was void in law in accordance with Article 5of (Cap 42) and further was illegal in terms of the Civil Procedure Code -and the laws as pertaining from time to time and had no legal effect whatsoever and did not bind the Appellant not to publish the letter dated 19th October 2004 addressed to the Chief Justice by the threeJudqes of the Supreme Court. (c) The Honourable Judge erred in law in failing the Supreme Court sitting of the 211z day of October 2004 did not the have jurisdiction to order a restriction the -rights of to hold that of Appellant granted in Article 22 of Cap 42 and further that no laws derogating from 01' restricting those rights had been leg isla ted. (d) The HoiiourableJudqe erred in law in failitu; to hold that the immediate Court hearing the Contempt of Court proceedinys did not have jurisdiction to consider the said Contempt ofCourt dwrye in that the Appellant was protected by Article 22 of Cap 42 and no laws derogating from or establishinq. restrictions to his righ_ts had been legislated: (e) 711(' Honourable Judqe erred in law in failing to hold the I ionourublc Court -silting Oil the 21" day o] October 2004 .. -. breucti (SIC) the Constiiut iUi llil j( iy his ~!:.tile. \ppeiiaut iuuneb] Article 19(7) and A iticle 2:? o/(Cap 42). . e " . (/) The Honourable Judge erred in law in faili1lg to" exercise his discretion to refer the Contempt of Court proceedinqs to the Aitorneu General. (g) The Honourable Judge erred in law in failing to allow the Appellant to show cause on the merits andfacts of the case why he should not be convicted for Contempt of Court. The Honourable Judge breach (sic) Article 19 (7) of Cap 42. (h) The Honourable Judge erred in law in his finding that the Appellant was guilty of Contemp t of Court. Reliefsought from the ,Seychelles COllrtof Appeal (a) an order setting aside the conviction of the Supreme Court of . theAppellant made on the 'II! day of December 2004 whereby he was convicted for Contempt of Court. (b) an order setting aside and dismissing the sentence of the Supreme Court made 011 the 9th December 200-1 wherehy· tlie Appellantioas sentenced to pay afine of RS40;OOO/-. IN THE ALTERNATIVE (c) em order setting aside and dismissing the orders ojtlie StlPl'C17lC Court made on the 1i1 and 9'h da» of DeCC171he1'2()04 and further referring the said case to the Constitutional Court of Seychelles, IN THE ALTERNATIVE (d) UTI order settitu] aside unddisnussinq the expane interim order oft he Suprenic Court made hy Honorable Just ice Renuiul on tlu: :.!11i day (~l()cl()I)('1' :.!()o.{', ' [7J In order to appreciate the reasons which motivated ,Renaud ACJ in issuing the injunction in.question against the Appellant, it . is necessary to revert to the facts and in some detail. These are - -- contained in an affidavit filed by the learned Judge himself onrz determination of the instant matter, November 2004. Because of the importance of this affidavit in the it is no 'doubt necessary to the risk of reproduce the entire contents thereof even at overburdening this judgment. The affidavit reads:- "I, Bernadin Renaud, Judge of the Supreme Court of Seychelles, of Victoria, Mahe, Seychelles, maketh oath and sayeth asfollows: 1. ' That I am a Judge ojthe Supreme Court of Seychelles. 2. That three Judges of the Supreme Court namely Justice Perera; Justice Karunakaran and myself submitted a memorandum dated 19th October 2004 setting out certain, matters for discussion with his Lordship the, Chief Justice OTZ the afternoon of the same day. 3. That following the said meeting, His Lordship the Chief Justice undertook to take up the matters raised in the said Memorandum with the authoritij/ics concerned. 4. That a copy of the said memorandum was Left with His Lordship the Chief Justice aud each of the three Judges hada . ., - .. copy thereof 5. That I was appointed to (let as the Chief Jll.~tire duruu, the the incumbent ChiefJuslil:cji"OTll absence of pcri(Jd (~r21h()('/()/wr uoo.t u, :.!Tlrl f:/(}v(,11lh~.,.. Seyc/u.:L/es;j()J· the :.!O()-I. " (HU~1:->ourn..'sof infornuuion atui diu ;)/ CiUlJO/'(l[C [urthcr (1:; to the provenance of thatparticuliir d()cumen~. j . • 13. That 1 emphasized to Attorney-at-Law Mr. Derjacques not to . cause the said Memorandum to be published, as he had already indicated to me that it was the intention of Editor of REGAR newspaper to do so. 14. That Attorney-at-Law Mr. Derjacques would not give me such an undertaking that the Editor would not to go ahead with his intended publication of the said Memorandum. 15. That upon reflection, and in my capacity as Acting Chief Justice, 0/ Seychelles confidence in order to prevent that the Institution of the Judiciary be scandalized and in order to maintain public in the administration of justice, I issued an Order.o] '. I~terim Injunction on the Editor that same afternoon, ,ordering him not to publish the purports Memorandum "until the further Order attached). and contents order of this Court". of said (Copy of 16. That in disobedience and defiance of the said Order of Interim Injunction made by the Supreme COUT't, the Editor of the • - > • REGAR newspaper went ahead with the publication of the said Memorandum, together with a .copy of the Court Order as well - to justify - CIS (1n article purporting . front page of the REGAR newspaper attached). his action in do S(),' in the issue Vol. 13 No. 40 (copy . 17- That the action of .- dis()i>eyiny ([11(1 c/ej!JiIlY the Supreme the Eduov of . the said newspaper in Court's Order of lntcriru 'll~jll1j('li()11, uniotints t() a Contcntp! of Court. · '. (), . 6. _That 011 Wedncsday 21" October, 2(W4 at about 1.39p. T71: I wa~ ill my Chambers when Atl~}1'lley-at-Law Mr:. Anthoru] -Derjacques sought and received audience with me. 7. That"during the said audience Attorneu-at-Laio Mr. Derjacques showed me what appeared to me to. be a photo-copy of the Memorandum referred to above dated 19th October, 2004 bearing the signatures of Justice, A. R. Perera; Justice D. Karunakaran and my own. 8. That Attorneu-at-Laui Mr. Derjaccues further stated to me that. as one of the Leqa! Advisers of REGAR newspaper he had been, instructed by its Editor, that -before publishing the said Memorandum in the REGAR newspaper, to ve1'ify,from me, iohether the said Memorandum was authentic. 9. That I informed Attorney-at-Law Mr. Derjacques that it WClS indeed so. 10. That I impressed on Attorney-at-Law Mr. Derjacques that the said Memorandum was supposed to be privy to four persons only, namely the Chief Justice; Justices Perera; Karunakuran and myself and was not meant to be made public and that its , publication could be and . undermine publi: '_ scandalous' confidence in the Judiciary. 11. That I [urther enquired from Attorney-at-Law Mr. Derjacques now the Edito]' of the REGAR newspaper came in possession of ([copy oftha! private document. 12. Th([1 I1l unsuser to my ahotJe quay, Attorneu-at-Laio Mr. /)cl:jm'(lll('S replied thut thc IMiloT' (~rRI:'GAR lH'WSI)([I)('1' Iias his '. ~ " , s //). i';;u j verily bcucoc that, in ordc: to maintain We di~J Ii:'I.e), respect, and p1'estif~eof the Court, it is necessanjtiiat the Editor of REGAR neuispuper should be culled iLpCJnto sho~v cause why he should not be dealt ioith for the said Contempt ofCourt," . [8] It requires to be noted at the outset that the Appellant neither filed an affidavit nor gave viva voce evidence in the matter. . . It follows that the allegations of facts deposed to by Renaud ACJ in his affidavit were not met in point of substance or at all. Therefore they stand as uncontested , facts. This Court must accordingly' . proceed on the basis of the correctness of these facts in the determination of this matter. [9] Before 'going further, on the approach adopted it is no doubt convenient by the ·learned Attorney General, Mr. to comment Fernando, in this matter. Although admittedly served with the papers, he did not make any appearance in the court below. On appeal before us, however, he has appeared as amicus curiae and made submissions as such. , As I. understand his submission, the Ieamed Attorney General concedes that "technically there was an order which was flouted" by the Appellant. He, however, submits that the Appellant should not have been convicted of contempt of court. In this regard, he aligns himself fully with the submissions made on behalf of the Appellant and does so seemingly with more passion. It is thus .unnecessary to consider his argument separately from what follows below'. But two of his complaints deservc' special mention at this stagc, 11amcly:- . . (1) that.the Appellant was not called upon to plead to the charge . . q in violation of section 181 (1) of the Criminal Procedure Code ("the Code") and (2) that it was not properfor the learned Chief Justice to act on his own motion .in the matter but that he should have referred the matter to the Attorney General. [10] ABregards the first complaint, section 181 (1) of the Code .' reads as follows:- , "lsi. (1) the substance of the charge 01'complaint shall be stated to the accused persC!,n before the' court, and he shall be asked whether: he admits or denies the truth of the charqe. ,. It is necessary to bear in mind; however, that section 181 of the Codeapplies to offences under the Penal Code which does not have .the offence of contempt of court. This is so in terms of section 3 of the Codewhich reads as follows» 3. (1) Alloffences under the Penal Code shall be inquired into, tried and otherwise dealt with according to the prooision« hereinafter contoined. (2) All offences under any other law shall be inquired into, tried and otherwise dealt with according to the. same provision», . subject, however, to any enactment j{)r the time beiru] inforc« requiutiru] the manner .01' place ()f inquiriru; 'int(), ll'yiny or otherwise deulnuj with sucl: offence». to (,)/ l\iotwiLiislulIlfillY anything in tlii: ('()lil' {·'.':li"".'/,'d,llze Supreme. court,' nWH, subject to the provisions of any law fo~' the ti'!1e being in force in Seychelles, ill exeA_~isillY its C1'imin~1 jurisdiction in vespea of any matter or thing to which the procedure described by this Code is inapplicable, or for which no procedure' is so prescribed, exercise sucii jurisdiction according to the course of procedure observed, by and before the High Court of Justice in England. In my view, the words "subject to the provisions of any law for the time being in force in Seychelles" are a reference to the common law offence of contempt of court. 'Construed in this way, it follows that the procedure prescribed by section 181 (1) of the Code is "inapplicable" to contempt of court proceedings which in turn have their own summary procedure at common law. Accordingly, I conclude that the learned Attorney General's complaint in question is, with respect, misplaced. It is for that matter common cause that - the Appellant was duly served with a rule nisi which read in part as fo11O\\"s:-.. "AND WHEREAS you acted in wilful disobedience and defiance of the said Order of interim Injunction, by causing 'the publication in YCJur newspaper, namely "REGAR" ill your issue Vol. 13 N0.10 dated 2y;i! . Octoher 2004 ojthe documentreferred to in the said Order, AND THEREBY; your said action and behaviour render you liable to. . he dealt ioithfor contempt oftlic Honourable Supreme Court, AN]) 1'AK/~ N011CE THAT uou arc required t() he present person befon: the l ionourub!« Supreme Court on /()ih day (~r . , i'l I I . ,\iil.'cmi>er, 20u4 ai u.ocand shou: L:ULiS(' tutU} 'lliii should uo! be dealt with/or contempt ofcourt," [11] The second complaint of the learned Attorney General is . equally without merit. The learned ChiefJustice himselfdealt with . . . '. it in these terms.- "The order of Judge Renaud was made 011 the 2711 October; 2004. The respondent published the Memorandum two days later, i.e. on the :29th October 2004. The Court waited until the I1h November 2004 before invoking its inherent jurisdiction deriving from the common Iaio in requirinq the respondent to show cause why he should not be dealt with f07' contempt of court. Would it have been reasonable for the court to wait indefinitely for the Attorney General to exercise his preroqatiue of instituting criminal proceedinqs for contempt against the respondent? Would it be reasonable for the court to allow its orders to be flouted and await indefinitelufor em action to betoken hy the Attorney General against. the respondent? Does not the inaction of the Attorney General for 18 days evince clearly that it W(lS Hot his intention to institute criminal proceedings for contempt against the respondent. In the present circumstances this Court is well able to take -action against anyone who disregards or defies its orders. Moreover, the Court should never be at the mercy of anyone." J It is well established that supenor courts of record han.' jurisdiction to deal summarily with conte npts both in the face of the court and out of court. It is true, as Archbold, Criminal pleading, Evidence and Practice, 39th Edition at paragraph 3457, observes, that the power toact of its own motion should only be used by the court when it is urgent and imperative to act immediately and that "[i ln all other cases the . \ • 12 court should ira\ c rh.. Attorney ul'lllTal or aggrieved party to 1l10"'C "tocommit." It requires to be stressed, however, that, subject to the provisions . " of Article 46- (7) of the Constitution, the court obviously has a . discretion whether or not to refer the matter to the Attorney . General depending OL the 'circumstances of each case. [12] It is no doubt appropriate to add at this stage that equally without merit is the Appellant's own .complaint as contained in ground 2 (g) of his grounds of appeal to the effect that he was not allowed to show cause on the 'merits why he should not be convicted of contempt of court, The rule nisi referred .to in paragraph [10] above precisely informed him to show cause in that regard. '. Indeed the record confirms on page 5 thereof that the learned Chief Justice offered the Appellant the opportunity to file an affidavit. He chose not to do so and cannot now be heard to complain. In this regard Mr. Derjacques for the Appellant is recorded as having addressed the court as follows» "Yollr Lordship, in these hearings, whereby Mr. Moncienne is caused to show cause, I have bproposition« to place before uou. I would seek to address on 4 of these 6 propositions and then call upon a Rulinq, and if I do nut succeed in any oithe 4. then I would humblu request that then we can call Mr. Mancienne to answer in the box, on facts and on his views, and why he wellton to publish that letter signed by the 3 Justices 011 the 19th October 2i>04, in his Edition of the 29th October 2004 .. CoW1: But there is no need /()1' [llUl, he ('W1SWe(l1' un A{liduvit. .. . .. .1 -; arrived yeste1'day,f1'011l his tl'i]) to overseas. Court: Yes. But there is no need to go in the box. ,. Contempt of Court [13~ It is generally recognized that the concept of 'Contempt of Court' .is of ancient origin. Indeed when Alleear CJ in the court below said that "the term Contempt of Court is of ancient origin having been used in England certainly since the thirteenth century and probably earlier", he was, I hasten to observe? quoting directly from the speech of Lord Ackner In Attornev Generar v Times Newspapers Ltd and another [1991]2 All ER 398 - In tracing the historical development of the concept - (HL) at 406. . of contempt of law, the learned Law Lord expressed himself as follows:- "the term 'contempt of court' is of ancient oriqiu }uil'ing been used in England certainly . since the thirteenth century and pmiJuhly curlier. " The term has been ~Titj'd'lcd c: :~~C.c2:::·atcWId tnisleadinq, suggesting in some contexts that it exists to protect the dignity of the judges. Ot'CI' 1.00 years ago Bowen LJ explained in Re Johnson (1888)-20 QBD 68 at 74: 'The law has armed-the High Court of Justice with the power and imposed on 'it the duty of preventing '" any attempt tointerfen: with the administration ojjustice. 'Il is Oil that qrouud, and not on cuu] cxaqqeratcd notion nf the diynity of individuals that insults to juclqes ([1'(' not a !lowed. lL is Oil the same yr~)ll1ld thai insults 10 ivillH's,"ws (J]' tojurutnen ure not alloiucd.' '. 1 -+ ' /.,('u1'ly 70 yew,...; uye> i ,,,i [lid;' cotutncu! WUS made hy the Lord . . President (Clyde) in Jolzn~(jl1 v Grant 1923SC 789 at -90, He said: d 'The ph rase "Cantempt of Court" does not in the least describe the true nature of the class of offence untl: which we are here concerned ... The offence consists in inteljering with the administration of the kub; in impeding and preventing It is not the dignity of the Court which is offended -_a petty and misleading view of the the course of justice... issues involved - it is the fundamental supremacy of the law which is challenged, ' Approachinq 50 years later in MOl'1'is'v C1'Own Office [1970J1All ER 1079 at 1087, [1970J2 QB 114 at 129 Salmon LJobserved: 'The sale purpose of proceedinqs for contempt is to qii:e our courts the power effectively to protect the rights of the public by ensurinq that the administration of justice shallnot be obstructed 0]' prevented ...' Sh01~tly thereafter Lord Cross of Chelsea in A -G v Times Newspapers Ltd [1973J3 All ER 54 at 83, [!9741AC273 at 322 commented: '... "Contempt of Court" means an interference with the administration 'that the oftence should !v ·.",~f;-'" ,1, "fill~'fi('n and it is unfortunate _J j - "'L l, t.l' I. i,·.!' v, - '.', '. ,. J .",,, lj\ ~ 'JJ t - - u L &. '. \..1 be known by (l name which suggests to the modern mind that its essence is a supposed affront to the dignity of the court. Nincadau« when sympathy is readily accorded to anyone who defies constituted authority the very nClme of the (~frell('e predisposes many people in favour of the alleged offender. Yet the due administration a/justice is something which "all citizens, whether on the left or the right or in the centre, should be anxious to safeguurd'. In tlic SClT1lC' itear the Rl'J>()'-'/(!f ilu: Connniuco Oil Contempt (>.f Court (Cnuul S7<J. J)(the Phillimor« Conunitte«) jH'('sl'Tlll'd to Purliament in /)('('('fllli(;r H)74 stutcc! in its PCf". IJ.!IFsl/JUl'uyruph: .s " . \5" " to contempt 'The law relating. the centuries as ameans iohercbi: the courts may act to prevent or punish the obstruct, conduct of court has developed, . prejudice . which abuse' tends over to 01' administration of justice either in relation to a. particular' case 01' generally'. More recently Lord Diplock in . A-G v Leveller Magazine Ltd [19-9]1 AI1 ER 745 at 749, [1979]AC 440 at 449 thus summarised the position: '... although criminal contempt of court may take a variety of forms they all share a common diaracteristic: they involve an interference' with the due administration of justice, either in a particular case 01' more generally as a continuing process. It is justice itself that is flouted#by contempt of court." [14] The speech of Lord Oliver of Aylmerton in the same ease also' merits quotation. He said this at page 413: "My Lords, the inherent jurisdiction of the superior courts (~f record to enSIL1'ethe effective administration of justice by punishinq contempt cf court has been developed by the common law over centuries. It is [is essential as it is ancient, for unless litigants can be assured that the rights which it is, the duty of the courts to protect can he fairly determined and effectively protected and enj()rccd the system (~f .justice necessarily ceases to command confidence and an essential foundation of the structure of civilised society is undermined. JIll' term 'contempt of court' is, perhaps, a less than happy description o] the concept.for 'it can only too easily be, and frequentlu is, represented as a judqe-made device j01' the preservation (~f the judicial (lT1WW' proprc. As Salmon L. J ohscrvcc/ in .[Qwjsoll __j)_[jakc1' or197211. All rn 997Cll J()()/, /1Y72}2 C)/J 52 ot 61: , . ... , The inherent POWCl' (~/ . Lll' . Iudyc.; (d the iiiyh Court to commit j(H' contempt of court has existed [rom time immemorial. "Contempt of . I(). '. Court" is an unfortunate and misleading phrase. II sllyyests~that it . . exists to pro~ect the dignity (~f the judges. Nothing could be further from the truth. The power exists to ensure that justice shall be done. And solely to this end it prohibits acts and words tending to obstruct the administration of justice. The public at large, no less than the }ndividuallitigant, have an interest and a very real interest, injustice being effectively administered. Unless it is so administered, the rights, and indeed the liberty, of the individual will perish" . . [15] It is further salutary to note that the" common law rule on contempt of court was recognized by the European Court of Human Rights in Sunday Times v UK A30 (1979) as being in accordance with Article 10 (1) (2) of the European Convention on Human Rights. That Article is on freedom of expression and it reads:- . "Article 10 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart . information . and ideas ~!)ithot!t interference b~f public authority and regardless of frontiers. This Article shall not prevent States f1'0771requiring the licensing of broadcasting, television 'or cinema enterprise. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties ..as (Ire prescribed hy law and are necessary 111 a democratic society, in the interests of national sccuriti], territorial illleyrily ()1' public salel.l},j()r thepreoentionoj disorder protection or crime, [or tlu: 1)1'Ot('('/ion (?/ hcultli or morals, [or the - (~rthe reputation or riyhts (~r()lll<'rs,. Ii)/· l)r(,l'(,lltillY tlu: ' . ,!I.-:"{US(;!. .' hl)'(ll'lliUliUll n'ccitl(\/ in c01~/hl(,ll(,(" i;/' jl;' nuiintuinituj the authority and impartiality of thejudicianj": [16] As I read them, the authorities all come to the proposition that the need to keep committal proceedings alive is justified by the fact that there can be no rule of law if the dignity and authority of - the courts as well as their capacity to carry out their functions are not always maintained. Put positively, the process of contempt of court is an indispensable tool in terms of which the courts are able to dispense justice effectively. It is hardly necessary to stress that where courts lack the necessary integrity and dignity for them to discharge their functions there will be less respect and therefore less compliance by members of the public in general to their - orders. To prevent this is the fundamental purpose of the process of contempt of court. Indeed it goes 'without saying that it is in the public interest to maintain the integrity' and dignity of the courts _without which the rule of law would collapse. As John Lock once said, where the rule of law ends tirany begins. ,Jurisdiction [17J As previously alluded to in paragraphs [l1J and [14J above, superior courts of record, such as the Supreme Court is, have inherent jurisdiction at common law to punish contempt of court as a means of ensuring the e.fectivcadrninistration of justice. That jurisdiction is as old as the English common law itself. [18] The provisions of SA of the Courts Act (Cap 52) with regard to the jurisdiction and powers of the Supreme; Court also bear reference, This section reads» ·" the'Supreme Court shall be a 'Superior Court of Record and, in ~ addition to ani; other jurisdiction conferred by this Act or ami - - . other law, shall have and may exercise the powers, authorities and jurisdiction possessed and exercised by the High Court of Justice in England". (My own emphasis). In my judgment, I can see no justification in construing the terms "in addition to" and "any other law" other than as including the common law. It is for that matter a sound rule to construe a statute"in conformity with the common law rather than against it, except where the statute in question is clearly intended to alter the common law. On this construction, therefore, SA of the Courts Act gives power to the Supreme Court to punish contempt of court as is known at common law. To that end, therefore, the section recognises and maintains the common law concept of-contempt of court. Defying a court order [19] As will be recalled from what is stated In the preceding paragraphs, it IS common cause that the Appellant defied the order of Renaud ACJ not to publish the letter in question. Now, the stage is no doubt opportune to answer the question posed in paragraph [11above namely whether a person is entitled to ignore or defy an order of a Supreme Court Judge on the ground that such order is void or illegal and therefore not binding on him? . [20] At the outset", it will be noted that there arc two schools of thought on the point. ' ___I!) (1) One SdLJ(;~ )1' t:;, tight is to the.oftcct th.u an unlawful order of court is a nullity .and may simply be ignored withoutany need to set ft aside formally~ That 'was the position in the South African case of S v Absalom 1989 (3) SA 154 (A) at 166. Therein Grosskopf JA expressed himself as follows:- "thejudqment of a court having 110jurisdiction need not be set aside formally; it is a nullity, and may simply be ignored". The difference between R v Absalom arid the instant case, however, is that in the former case the court had no jurisdiction at all in making the order that it did. By contrast, it cannot seriously be argued that Renaud ACJ had no jurisdiction to issue an injunction in the special circumstances of the case and in particular; having I .1 regard to the uncontested contents of paragraphs 10 and 15 of his affidavit as fully set out above. (2) Another school of thought is succinctly expressed by Halsbury's Laws of England, Vol. 9 page 35 para 55 In the following terms:- "Orders improperlu obtained The opinion has been expressed that thefact that WI order ouqlit not to have been made' is not a sufficient excuse for disobeying it,' that disobedience to it constitutes contempt, and that the party aggrieved should apply to the courtfor reliefjor compliance with the order ", _True enough, a further point is made in the' Halsbury's Laws of England that on an application . made, the Court will give the respondent to enforce an order irregularly . the benefit of the fact that . order is irregular. It wiil be remembered, howev« j that we are '.1" here not dealing with an application to enforce the order of Renaud ACJ. Nor is this Court sitting on appeal against the order in question since it 'vas never-appealed from. On the contrary, that order has already been effectively defied· by the Appellant. to be prevented was effected Publication that was sought " _ . nonetheless and there is therefore nothing left to enforce. What remains, if one follows the second school of thought referred to above, is whether contempt of court was committed and the resultant punishment if it is sustained. It is indeed right to say that it is precisely at this point that the proponents of the first school of thought referred to above, as' advocated for by the Appellant, get it completely wrong, in my view. They pay no regard to the due process of appeal or review' where one is aggrieved by a court order. Instead, they simply advocate for confrontation and defiance which are no doubt a .recipe for chaos in a democratic peace loving society. [21] Writing on the implications of an order being "void" as claimed by' the Appellant, H. M. Seeravai: C:'listitlltional Law of India, further drives the point home in the following words:- "To say that an order passed ill »ioiation of the principles of natured justice is void or u nullity requires clarification. Ije.q., Ridge had Hot challenged- his dismissed by an action, then, although the order was void or nullity, it would have had full leqa! effect as (f it uicre (1 valid I f I in certain situations, (J void order _fws immediate the riCjhls (~f (I [)(;rsOl1 or (;/1 his riylzt to propertt], so thut Secondly, order. (~/I('et Oil unlcs« the order is set aside. the injury sL{/fered cannot he remedied. !l judye ioiu, coni.iit« u I){,I.'SOTI without jurisdidio·l1. I)(JSSl'S WI order · \ proceedings to set aside the order if he is to reqain .his liberty: eft race horse owner" prevented from runninq his horse 011 . the race course by an order passed against him in violation of Similarly, the . . - " principles of natural justice mllst take necessary steps to set aside the order if the' injury caused by the order that Lord Morris submitted to be effective. i12 the passage in para. 16.160 _ set out is not 'It is above stated the proposition correctly. The order is ooidab!« in the sense that order. But if it is not challenged, if the order is challenged, it will remain as effectiue as a valid then it is voidable in the special sense that the verdict of the court is awaited. If the court finds that the order violates the principles of natural justice,' then. on that finding being made, the order is void." "[22] Archbold: Criminal Pleading, Evidence and Practice 2004 at page 2407 adds his voice in.the following uncompromising terms:- "To disobey an order of court properly made is a contempt. " [23] It is instructive to note the approach of the Constitutional Court of South Africa to disobedience to court orders in £__l rvlamabolo 200i (3) SA 409 CC at 438, That 'h-~l~::).~:1'=P In which the appellant was summarily tried and sentenced for contempt of court in the Transvaal High Court arising from his comments" concerning an order -of that court that he had published, At paragraph [65] thereof the court said i.his:- II would have been a very serious mutter indeed, calliiuj for "{Os] speedy and decisive action, if the order luul actualh] been defied .. The spectre (~lexecutive officers refusiru; t() ()hcy orders ()f ('.ourt lwcuus: they think they W('1'£, wl'onyly qrantcd is ominous. II strikes ul the very foundation« (~r the rule (~l luu: iohcn Y01'(TIITllt'lIt seirunt» ' .. " 'Iii( 'II .at. orucrs ,'ij court. What Iii', : lili'iC 10 disicyurd form (~faction uxiukl have been is (l matter for speculation and need tl« mas; "j These remarks appeal to me as being in harmony with the rule of , . law and are as such remarks that Iam happy to follow. Similarly, it would be a sad day for Seychelles, if not a complete disaster, in so far a~ tne rule of law is concerned, if journalists or members of the news media were to be allowed to defy court orders if they perceived them to be wrong. It is correct to say that the decisions of a South African Court, like the decisions of ariy foreign, jurisdiction, are not binding on this Court. They are, however, of persuasive. value more' especially as they" come from a . Commonwealth country such as ours. It requires to be noted in this regard that the Constitutional, Court of South Africa is the highest Court in' that country on constitutional matters. Eleven Judges form a quorum. It speaks volumes then that the decision in S v Marn.abolowas unanimous. Another .significance of S .v Mal1_1abololies In the fact that the Constitutional Court recognised the need to maintain the sanction of contempt 'of court in order to,protect the dignity and authority of the courts in upholding the rule of law. [24] Snyman: Criminal Law -:-2nd Edition at page 343 throws further light on the issue of disobedience to court orders. He writes:- "Gcncrulli}, ({person may not rejilse to obey WI order (~lcourt merely ' I] he wcre cnt iI/I'd to the order has /)('('17 wt'liTlyly />C(,UllS(, 111([(/<', ') ,.' -,) completely fatal, tv the authority of the court. He l1111...:t [ius! obey the order and sllbseqrlj'ntly seck redress,"if any by lawful means, such as It is submitted, however, that this general rule appeal or review. cannot be universally applied: blind compliance with an oboiousli; unlawful command which has been issued malafide (a most unlikely event, yet not an impossible one) would itself tend to weaken respect for the administration ofjustice. " Ithas not been suggested in theinstant matter, nor could it be, that the court order issued by Renaud ACJ was issued mala fide. On . . the contrary, and as has been pointed out previously, it was issued for a, perfectly legitimate purpose of protecting the integrity, dignity and authority of the court by prohibiting a publication . . undeniably aimed at scandalising the court. Needless to say that as custodians of the Constitution, Judges have a duty to protect " the Constitution at all times. It follows that Renaud ACJ acted honourably in the circumstances. He did not act in his O\\TI personal interest but, as I repeat, in defence of the dignity and well-being of the Court. He confirms this in paragraph 10of his affidavit. It will, for that matter, be realised that the learned Acting Chief Justice faced a difficult and unprecedented situation whereby the Appellant was threatening t.o publish the contents of a private, and no doubt confidential, letter between the Chief-Justice and the Supreme Cour. Judges, Part of the letter in question reads as fo11ows:- . "Independence of The Judges And Maqistrlltes We W'(' prcscntly (,X[JCl'I(,llCI11Y an unprecedented situation where the N('(jisl rur IS I rcat iiu] tlu: ./udycs unci MuyislmieS us his subonlinute .'llt 2,1 Gild ow' independence as Judqes, III the meantime we request that (1) With immediate effect, all personal files of Judges and Magistrates be kept and maintained by the Secretary other officers in a "private office of the Chief Justice" to be created. to the Chief Justice or such (2) . That all administrative matters, including the use of Judges cars, fuel, repairs, etc and payment of telephone bills be handled by the Chief Justice's private office. Decisions in respect of those matters to be taken by the Chief Justice in his capacity as Head of the Department. (3) Under no' circumstances . should the Registrar . contact any Judge or Magistrate on any matter, except through the Chief Justice's private office. The Judges and Magistrates will do the same iohen dealing with the Registrar. (4) Reqistrar to be solely responsible forlapses on the part of the stuf] in respect of Court matters, such as failure to carry out Court Orders, issuing of summons, etc. He will be liable to he summoned ill 0PCll Court to explain any sucli lapse or failure, personallu and not hy delegation. " In my view, the scandalous and damaging nature of the letter to . the integrity and dignity of the Court is self-evident. It represented . . an ugly standoff between the Regist~ar and t~e three Judges of the Supreme Court. The three Judges' complaint of being treated as being "subordinate administrative officers" could,' in my opinion, only bring the Court into disrepute if made public. L25J H vv111be noted that the Appellun. li<1:1 no: dPpcalcd against ') _,' , . Renaud ACJ's order , ~ in question as was his right to. -, Tn a~' '. democratic state priding itself with the rule of law as Seychelles is, we can ill-afford people defying court orders simply because they perceive them to be wrong. If such a situation' were allowed to - prevail, chaos would reign. Obedience to court orders would depend entirely on the whims of individuals and, as' J say, the administration of justice itself would collapse. [26] In this connection, I am in full agreement with the, remarks of the Irish Judge namely, Judge Walsh, in his minority judgment in the European Court of Human Rights in Goodwin'vThe United Kingdom, case No. 1611994/463/544. 'T4e learned Judge said this:- I "The applicant claims that because he does not believe it (information ordered to be disclosed) was stolen he can justify his refusal to comply with the court order made in his case. His attitude and his words give the impression that he would comply if he believed the document in question had been stolen. He is thus setting up his personal beliefa» to truili oj a fact which is exclusively within the domain uJ tt.e nutionat courts to decide (IS, (I justification for not obeying the order of the courts simply because he does not agree with the judicial findings o] fact. It does not appear to me that anything in the Convention permits (! litiqunt (~r [act made hy the competent courts and therein; seck t()Jllst~h; u refusa! to set up his own belief as to the [acts against the [indiiu; to h~>bouiu! hy SllCh,Jlldiciu/ finditu; offac: To pcnuit him to do so simply because he is a journalist by professio1l is to submit thcjudiciu! /)/'()('('SS to the subicctii»: USSCSSl1H'llt of one o] the liiiqcin!« cuu! to _' ," .'ilLJlCllul' ./.",. ,1..,;.,' ,,.; li d( ,. "",i".,.!. :/'I,i1 c'" ,:"'" i ..•·." ... "·'LlSII)1l tl.'>·( ,' (Ii( . llL()/U . IUS l CUliO:! itifi 'Z' d [or rcfusiiu; to obey the court order in C91lSeqllellCeof tiJlzichthe other litigant is to be denied . Justice and to suffer damage. Thus there is a breach of primary nile qf natural justice - no l~all is to be the judge 'of his OW1l cause," [27J It follows, In my judgment, that, as. a court of unlimited jurisdiction, the orders of the Supreme Court stand until they are set aside .by this Court whether they are right or wrong. In this regard it must be emphasised strongly that it cannot be otherwise with a court of unlimited jurisdiction. [28] Giving full weight to the aforementioned considerations, I have come-to the inescapable conclusion that . . the Appellant had rio lawful justification to defy the court order in question and that his flagrant disobedience of the order amounted to contempt of court. He was therefore correctly convicted, . [29] The conclusion reached in the preceding paragraph renders it strictly unneces~ary for me to de~l with th.e other grounds of appeal. especially on the constitutional issues raised. Since, however, . these issuesare important not only to the Appellant and . the news' media but also to .the members of the public, it is necessary to give a brief guideline. [30] The Appellant's main complaint, . . as I understand it, is that his constitutional right to freedom of expression as enshrined in Article 22 of the Constitution was infringed in the sense that hoth Renaud AC. J and Allcear C! dealt with the matter notwithstanding the fact that the Appellant WllS protected by the-Article in question '·~7 ',1 1" li t l'lll·LHl1~LI. U1CeSwhere 110 laws derogatiilg it m:l 0;' restricting the right in question had been legislated. d [31] To understand this contention, it isnecessary to have regard to the. provisions of Article 22 of the Constitution. ' It reads as follows:- "22. (1) Every person has a right to freedoni of expression and for the purpose of this article this right includes the freedom to hold opinions and to seek, receive and impart ideas and information without interference. (2) The right under to such , restrictions as may be prescribed, by a law and necessary in a clause (1) may be subject democratic society - (a) (b) (c) for pre:e ......t"·'.~<0._ _...., __ - . ....1.., ...., ,;1...... ·";..},,:,~--,.....rr"'·'''·l'e d .• ,_J\_",;--,_'; ...'Jd. of information received in confidence; (d) for maintaining_ the outhoritu and independence of the courts or the National Asseniblu .'~ [32] As a starting point, it must be stressed that Article 22 on the rightto freedom of expression is modelled on Article 10 of the European Convention on Human Rights as fully set out In paragraph [11] above. The remarks of the European Court of Human Rights in f-Japdyside v U~~A 24 para 4SLl19Z61 <Ire .", ,. " UiL~iefore apposite, 'dll I. Ull :', ~)~iiJ.·tlus 111interpreting Article 10 of the Convention.- "Freedom of expression constitutes one (if the'essentialfoundations of . -. a [democratic] society, one a/the basic conditions/or its progress ar:ld for the development ofeoen; man. Subject to paraqrapt: 2 of Article - 10, .it is applicable not only to "information" or ideas that are favourably received 01' regarded as inoffensive but also to those that offend, ~hock 01' disturb the state or any section of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no,'democratic society'." [33] In my view, the fundamental importance of the right to freedom of expression and of the role of the press and mass media in protecting such right as primary. agents of the dissemination of. information and ideas cannot be stressed strongly enough in an open democratic society such as ours. However, ope must always bear in mind that the right to freedom of expression is not absolute. Therein lies the test. Indeed it must always be realised that the right to speak includes the right not to speak. But more imuortantly, the right must obviously be considered in conjucctv.n with other competing rights and values equally necessary in an open democratic society. The court's' task, therefore," in interpreting Article 22 of the Constitution involves balancing all the competing rights and values. [34] That the right to freedom of expression is not absolute is clear from the wording of clause 22 (2) of the Constitution itself. . This clause plainly restricts or limits the right in question for a variety of reasons as may be necessary in a democratic society. Of ~q " restrictions contained in clause 22 (2) (c) and (d) of the Constitution namely ~ ~ - "(c) /07' preventing the disclosure of information received ill confidence; and (d) J01' maintaining the authority and independence of the courts or the National Assembly." [35J Now, it will be noted that the high-water mark of· the Appellant's case .both in the court below and in this Court has' always been that "no laws derogating from or establishing restrictions to his rights had been legislated." In my view, this submission has' no merit and can quickly be disposed of by reference to clause 22 (2) of the Constitution itself. For. convenience, it will be recalled that that clause reads:- "(2) the riqht under clause (1) may be subject to restrictions ([8 mqll be prescribed bl[ a law and necessary in a democratic society. '.' (My m\'11emphasis). In my opinion, the words "as may be prescribed by a law" are not just an empty rhetoric. They are clearly designed to' serve a . purpose which is this, namely, to include any law either statutory (;:uch ;1S S 4 of the Courts Act) or the common law tha. may he ne.cessary in a democratic society for protection of the. values set out in sub-clauses (2) (a) (b) (c) (d) (e) and (f) of Article 22. Since the common law of contempt of court obviously preceded the enactment of the Constitution, Article 22 (2) must therefore he interpreted purposively as a saving clause to the common law. In 30. ,)() ihi, reg;,li'd, it is:indeed ii:IU()l;,'L' the word· "law" is defined in section (1) of the Principles of Interpretation iri that has Schedul~ 2 of the Constitution to include "any instrument Li.; lx.ar in nund that . " the force of law and any unwritten rule of law". . In so far as this . . case is concerned, the saving clauses in question are contained in sub-clause 2 (c) and (d) of Article 2 which in turn provide for the prevention of disclosure of .information received in confidence, as in this case, and for maintenance of the authority and independence of the courts or the National Assembly. That the concept of contempt of court is essential .to protect these constitutional values and in turn therule of law is self-evident from what is stated above. '-, [36] Similarly, it follows from the aforegoing considerations that not only does the. Constitution itself contemplate and indeed, by necessary implication, recognise contempt of court but the infringement placed by contempt of court on the right to freedom of expression is justifiable in an open democratic society. It is for that matter in the public interest that the integrity and dignity of the courts be maintained through retaining the process' of contempt of court as has happened from time immemorial. See S v Mamabolo (Supra), [37] The Appellant's complaint that the learned Chief Justice . erred in law in failing to refer the case for contempt of court to the' Constitutional Court of Seychelles as per Article 46 e7}of (Cap 42) is equally without merit. The learned Chief Justice dealt with the issue in 'this \vay:-. "Tili.. ,'r I!;;'( i: ()1i;\[ hULT [;/1dUty acceded to tlu: rcqucs: U' the :)1 respondent had not yet exercised his right under article22 0) 6Tthe , . Constitution. In the present case the respdzdent has all'ea~y ~xercised his right of expression by publishinq in Regal' of the 291h October 2004 Vol 14,No. 40 the Memorandum which the interim order 01' injunction if in future a similar situation arises the person affected by an interim order, like. had sought to prohibit albeit temporarily. Admittedly, the one made by Mr. Justice B. Renaud, can before exercising the right under Article 22 (1) (supra) seize the Constitutional Court and invoke itsjurisdiction and seek a ruling from that Court in terms of Article 22 (1). That would be perfectlu in order because the respondent could then argue that his tight tofreedom of expression is being curtailed by the said order. Having already violated the order by exercising his riqlit to.inform and impart information under Article 22 (1) (supra), the respondent cannot now complain that his right to freedom of expression is being , curtailed by the order. The right under Article 22 (1) can be said to he . curtailed by an order of injunction if it is not yet exercised. This court therefore cannot at this point accede to the request of Counsel for . reference of this matter to the Constitutional Court because such request is now frivolous." The approach of the learned Chief Justice cannot be faulted. Indeed, having 'taken the law into. his own hands and thus effectively exercised the right in question, the Appellant himself made referral of the so called constitutional issue to the . Constitutional Court merely academic. It is trite that courts of law are disinterested in academic situations. 138] It is no doubt appropriate to conclude the judgment on this issue with the following remarks of Lord Donaldson in his speech .,' lit l:.( kadillg English ease of X Ltd v M(E'.g.i.1n ::.. Grarl1pian i 199111 . AC 1(HL) at 20 as they tell the whole story.- d "Aqain, I make 120 apology for repeating myself. Burl ioill elaborate the point. I believe that Lord Hailsman once said that "the rule of Iaio is a confidence trick". What he meant was that the rule of law depends upon public confidence and public acceptance of the system whereby Parliamentmakes the laws, the courts enforce them and tli.: vast majority of citize,!s accept them until they can get them changed. The stance of the Journalists' profession in relation to this particular law, (contempt of court) of which it happens to disapprove, threatens this confidence and acceptance. This surely, is contrary to the highest possible public interest. Any widespread refusal to obey the orders of the courts is a threat to the authority of the courts which is not any the less such a threat, because it is coupled with an acceptance that there will be a penalty to be paid." [39] Giving full weight to all of the aforegoing considerations, it follows that the constitutional points raised in his grounds of appeal cannot avail the Appellant. He was correctly found guilty of contempt of court. Sentence [40] As pointed out in paragraph [5] above, the Appellant was sentenced to a fine of R40,000 or 30 days imprisonment in default of payment. Now, it is trite law that sentence is pre-eminently a matter within the discretion' of the trial court. An appellate court , will not interfere merely because it would have exercised that discretion differently from the trial court. It will generallyinterfere only where there ,. is a material misdirection resulting III i.l r.1i:-'L'.ll'riage' of j;r:--.li ;' '): .' .,'. ,,-' ttL' sentence, i~ so harsh as to compel an inescapable inference that unreasonably and therefore improperly . the trial court' acted ' . [41] It is a striking and regrettable feature of this case that the learned Chief Justice has not filed any reasons for the sentence he imposed on the Appellant. This cannot be right. It is the right of every accused person to know the reason why he or she has been . sentenced. Moreover, failure to' give reasons may often give'the impression that the decision is arbitrary and thus bring the justice system into dispute. Be that as it may, the absence of written " reasons for sentence in this matter means that this Court is at large , , to do its best and consider sentence afresh. This is more so since' , , there is absolutely nothing on record to show that the learned Chief Justice considered, as he ought to have done, any mitigating factors in favour of the Appellant such as his personal circumstances. [42] Now, the Appellant's personal circumstances as gleaned from , the record show tb?t he i~ !r._~rri~dto a teacher. Incidentally, the Appellant himself was initially a teacher by profession as well as in po1itics. We were informed from the Bar that the Appellant has no " children. He has been engaged in publishing for a very .long time and as such has guided the Regar Newspaper from a newsletter to one of the leading newspapers in Seychelles. More importantly, the record further reveals that the Appellant has shown "cxemplurs] bchuuiour both in the deveknnnent oj" democrocu Gild " [rcedom o] the pre'ss ill S(',lj('hi'l/es," [4:~J It.is apparent' from the record that the Appellant "is a' respectable citizen. Indeed the learned Chief Justi!e himself has - stated the following on page 48 of the record: "[have a lot of respect for him." [44] Furthermore, it is pertinent to point out also that during the course of addresses in mitigation of sentence, the learned Chief Justice was clearly of the view that the Appellant had been ill advised by his legal advisors. In his own words he said this:- H... I must say that I have a lot. of sympathy for the respondent (Appellant). Today, if he finds himself in hot water, it is through no fault of his but undoubtedly that "of his legal advisors .. There is no doubt whatsoever in my mind that the respondent has been ill-advised riqlit from day one lip to the present time." It will be noted for that matter that the learned Chief Justice was apparently so convinced of the "ill-advice" of the Appellant's legal advisors in question that he emphasized the point further on pages 44 and 48 ofthe record respectively. It is right then that the sentence imposed should ..reflect this factor in favour of the Appellant. That, however, is not to say that this court' condones the "ill-advice" of the Appellant's legal advisors in question. If . substantiated, such conduct cannot be deprecated strongly enough. AI;) officers of the court ·l,egaladvisors have a duty to protect the integrity and dignity of the court at all times and not to undermine it. Since the legal advisors in question were, however, not given an opportunity to defend their position on this issue, it is unnecessary for this Court to say more. \ [45] That the sentence of R40,OOO imposed on the Appellant is excessive and has nb regard to his personalcircumstances out by what the learned Chief Justice himself said on page 48 of is borne the record:- "Court: I am going to impose afine but the"fine ifz_!ou(the Appellant) is on the high side you can appeal. I think this case should go to the Court of Appeal; go to the-Constitutional Court let them decide. For me it was a simple issue. He (the Appellant) should not have broken the law. Otherwise if I send someone to Long Island (prison) Mr. Marengo says he is not prepared to accept him. He should have uxiitedfor one or two days." (Emphasis supplied). With due respect, these remarks are unfortunate as they might give "the impression that the learned Chief Justice was"imposing an unduly excessive sentence and thereby simply passing the buck to." other courts to reduce it. It is, however, the duty of the trial court to impose a balanced sentence taking into account the triad consisting of the crime, the offender and the interests of society. [46] In dealing with sentence, this Courtis mindful of the age-old caution not to" approach punishment in a spirit of anger. The" justification for this caution, as one seems to have read, is that he who comes to punishment in wrath will never hold that middle course which lies between the too much and the too little. "The Court also takes into account in favour of the Appellant that he was, as he says, bona fide trying to "champion" the constitutional right to freedom of expression, albeit in a misguided manner. -.' . court is a very serious offenceindeed. Flagrant disregard or court {). . . - . . orders as this case illustrates cannot be tolerated. As pointed out previously, contempt of court strikes at the very roots of the rule of law, .. It undermines public confidence in _the courts of law by lowering their integrity and dignity. In short, It is detrimental to . democracv itself. It is therefore necessary to give'such sentence as would deter other like-minded persons that it does not pay to defy court orders with impunity as this case has illustrated or at all. [48] At this stage it is necessary to have regard to Rule 41 (2) of the Seychelles Court of Appeal Rules 1978. It reads:- "At the hearing of an appeal the Court may, if it thinks' that a different sentence should have been passed, and whether 01' not an appeal has - , been brouqht against sentence, quash the sentence passed by the trial Court and pass sucli other sentence uiarranted i11 law (whether more 01' less severe) in substitution therefor as it thinks ought to have been passed." [49] Giving full weight to fin the relevant fully set out in paragraphs. [36 - 42] a~ove, I have come to the factors. in this case as 'conclusion that the most appropriate sentence to impose is a fine , - of Rs.ooo or three months' imprisonment in default of payment. [so] In the result, the followingorder is made:- (IY The appeal on conviction is dismissed. (2) The sentence of the court a quo IS set aside arid' replaced with the following: . _ ,/ . ")'he' contemnor, Roger Mancienne, - a fine of Rs.ooo or . is' sen tenced to'the three' months' - - , in'default of payment" , ......'". ,~-'U;I .... . - . ' -- <'?\[ /~-~~---7--:,,- *', _ ,y,~'-J' /' . '.',',~'" ._~",,,,,-•••••• M. M. Ramo lbedi President -t. {•.•\'J~ ••• ,';, i" . of . payment imprisonment 1concur: Delivered at Victoria, Mahe this 20th day of May 2095 " .~ " -'~;;¥~R~ '., •••• ~ ""'" "" ~,~<_.(" ' ••._ .. ' . I... J. ! . r , . ., ..''''.'.<r~;~,~.~;,.:.:~:~' ", .' . -' •••••..• c...;'.- ..s..: ' ""~:::',;..-:.-.--, ,~,".,: :~~ ..::AN-D ,:. ;~; ,~.c.: :~~==~-:~=~~ ., ,.','~-.,',._' . ..:, . G9.~r~ment of Seychelles,.' RESPONDENT SCA No.10 of 20()4 ----_. _._. ----- Mr. A. Derjacques for the Appellant' Mr. A. Fernando for the Respondent . DISSENTING JUDGl\IENT (Delivered by Hodou},JA) ..' The Appellant has appealed to this Court against the \~ole of a decision of the Supreme Court (Y. Alleear, C. J.) finding him guilty of contempt of court for having pub1ished a Memorandum in' a newspaper, "Regar", despite an order of Mr. Justice B. Renaud of the Supreme Court . made on the 27th October, 2004, restraining him from publishing the said Memorandum. The Appellant was convicted on the 7th December.2004 and on the 9th December he was sentenced to pay a fine of RS.40 000/- or 30 days in default. IIi ( I \ i ' . , . i ! . The Appellant has appealed to this Court nri'p;ohf . --- ._ '. - . ornu'l'nrf" ... J-o ..•• e·,- ...~_" •. inter . alia, the following: . _._",.,._.,,,....._--._ ..._ -.--""---~-- -.--,-..----...~.. - ..-....-.._...-;;----.."----...~~......---.".-;-.- .__ -".,. ,. ~ . . a) The Honourable' Judge. erred in law in failing to refer' the case for Contempt of Court to the Constitutional Court of Seychelles . a~ per Article'46-{7ro({Cap'42)'~:'-"'" ..--..:._..... ':...__... .' .~~', ;' ..'~ ':. .: . ~':';', ,:,::';.::f -:_(--:); .....--_---_-_ ..... _-- _,---.- -._--_. ""-"_-'_'_--'----'_"_--;-- -_._--_-- ;~:jn·;;.-:~\'O~r~t~\~~.~i;~on~'.; \~ ~t~'·.?~it~~~)~~·'~'.~~j}~J~~.~,:'< -la\v'irf'failing; tohold that the' .'b) . The Honourable)tidgt:~rredJri day of ...: ~~-P~~_.jJlt~ri.lJtQrd~i. Q.f_l~sjj_<;~JieQ~1Jg_ma.<i~_Qri~dl~.27th October 2004 was void in law in' accordance with Article 5 of GiViI Procedure. (Cap 42) and further ~as,jllt~gal intemls'ofihe . Code and the' laws as pertatning' "from time io';tilll~and had no :~'f:~it!p~;.h:.t:: i.·-:<~~:""':~';~:':- ':i' ': .-: " _-_-._. __ .._-,'---.- . ,"'. .;.. t ..'-;:':-::::-:.:;::;':'. :::; _ '. .. ... ,' i" i .1 .to --:'-':;:;~:"~_:::':'::::::7~~ - >. : . . . .'". --::.:.~'":-'.: . . ..'-~-.··legal:effeci'YVha!sQever~d'~did:j)ot:~bjridjlf~p~Uant:not ~~;<~:~~~;~'~"·~~~!~~i~.l.ii!~!~t!ii ', . , .. , .' " . ,. ,': ,:; '",' "", ", ",' " ,', \ '. ", ;£~,',,·_'.~,~"_=,,~Iti~]jQnoJlf~pj~.)99g~~~IT~~~j~J~!V.,jnJailirig~t(}·h()ld"that-:~~":-:·--~~~-I;· .".".·~.':':···'···~'~'the"Supfeme·::Coiiit~Sitiin~))f"t~·~~2~1.~~~9rQQ~~~I,"~~?~~.;:···:~~:=~·~~~~:~;·~~;'·::7:-,;~!' ;. " ..,~"t. ~.';-.' ....."." .. ", \ 'did not have jurisdiction to 'order a restriction of-the' rights: ..,. of the Appellant" granted in Article 22 of Cap, 42. and further that no laws derogating from or" restricting those rights had been legislated. . • , ' . d) f) g) h) Judge erred in,law iri-failing to hold that TheHonourable the immediate Court hearing the Comtempt of Court proceedings did not have jurisdiction to consider the said the Appellant' was Contempt of Court charge in - that protected by Article 22 of Cap 42 and no laws derogating from or establishing restrictions to his rights had 'been legislated. . , . The Honourable Judge' erred in law in failing to exercise his discretion to refer the Contempt of Court proceedings . . to the Attorney General. The Honourable Judge erred in lawin his finding that the Appellant was guilty of Contempt of Court. Four orders are sought as relief from this Court, including order c), . . in the alternative: ",~" order- se~ing aside and dismissing the orders "of ,the-Supreme-' -," Court made on the 7~ .and 9th of December 2004 and further . referring the said case to the Constitutional Court ofSeychelles.t.; ."." .. --....._ - '.'-"-'''''~' ,;\f'"!h~h~.@Tlg'of ·.the·appeal; "the Appeuatii'-~~~1~~pi~~~Q!~.~~~yi-~~; .::~ :Derjacques" and the '. Aft6mey~7Geneial~:made~"~'-- .'. ::':":~ . -Iearned counsel A. submissions-as am:l'c"~U/':':'"c" 'u""r""',"a'e'.:. ,_._,.... _-.._--_.':'._._..__..'--~-':-'------'---'''----'--'--.:--"-~'''--'-'--;--~-'--'_,,-,,_-.~".-,:",---',, ::,~,,,~<, :;'J' ,,:;;':;:Y'::,:'> :'_:::~.::.. .: ''':," ,"'I .'l .' : :~~~':~;~':: ....;.: ...,.. .',.,- . con~~itutional issues;. m?stly concetriing. th~ f~i1ure-of-the leame~. Chi~~ ", Justice to refer. certain Issues. to the Constitutional Court as provided m .' - . Article 46(7) 'of the Constitution: ' . , ,- ~ - ~f • inany court, other .than . '.'Where in the course of any proceedings the Constitutional court or the Court of appeal the question arises there has. been' or is Ekdy to .be a with regards to whether contravention of the charter, the court shalt if it is satisfied that the or has, already been the question is not subject of a decision of the constitutional court or the court of appeal, immediately adjourn the proceedings and refer the question for determination by the Constitutional Court." frivolous or vexatious [1] .. From the record, ,it is evident that the learned Chief Justice dealt_ It was .submitted ' with a case of criminal and not civil contempt. that charges should have been brought by the Attorney General and the Appellant called upon to submit a plea. The.duties of the Attorney General are clearly set out in 'Article 76 of the Constitution: "The Attorney General shall be the principal legal adviser to to Clause (11»). shall have the the Government and subject power, in any case in' which the Attorney-General considers .it desirable so to do - , ' ." .. . ,', - (a) to institute and undertake criminal proceedings against - any':persoribefore'ciriy'-co-Url'inrespectof alleged to have been committed by that Person; anyoffence: , (b) ". ...... .. ......- -.....~.~.'-. - ~ '~"""-.'~:-'':"--'~'...,.......... _;:_.".-- ..,~-...~. ~... _'-' - ---'- ~ to __,_take_oyer ._,and ~Q.n~in~.an~,_such _',__~_.:'~pr~~~~ings,thathav_e._b~ti..~!i~~ 'or undertaken by',; - , .': -:: ~~Oc~e~pe~~~ftith,~~S~'?i%~!~ criminal '," . c·c:. ~.~..=: ..... i . ; f Article !?(6) provides: "Subject . on' the AttorneyGeneral . shall .be _ to'clause (7) the power conferred .bY' Clauser (4F:,(b);;to.: take over any '., . ,- .. =,.i.n._-;1ibe'-', to' the';' -, ---:._- '., , ' I i: I!f; I: Ii ri '"' ,. "'. :~ ." . . ...... .. _ :. ;~ ..'..:."'.:'"+'. ",.,",._'.- '..:i!!!t>. i&7f1;~i;:~~~~~;~~I~~~~i4~~~il-=:~~-:<~-<_~;~~~e . .. intention to.' institute Criminal' proceedings :agamst -the Appellant. He may also' have been of the opinion that, in the circumstances, to have been -,charged. The Constitutional the Appellant ought not Court should have been given the .opportunity to pronounce itself on this question. . The Attorney General wa; not iuvolved in. the proceedings and at page 41 of the record, the Appellant has complained that his right This to a fair trial under Article 19(1) has been contravened. question should have been referred by the learned Chief Justice to the Constitutional Court, . . [2] At page 41, the learned Chief Justice finds that "any judgment, right or wrong" should be complied order or decision, whether with, and if not contempt is committed, Legal opinion is divided on this question which remains open until it has been resolved by the Constitutional Court. the finding of the learned Chief Justice at page 42, that to question the order of Judge' in law be Hence, to this court . "counsel ~s request Renaud with a view to ascertaining its legality cannot entertained and isdevoid of any merit." is in my view erroneous: In this. regard it is of interest to note that' wheri passing sentence, Justice states at page 48: "I have a lot of respect the learned-Chief for him Inever said that he should not have published. Ithought it should be published, people ought t,o.know what is going on. . Ijust said he should have deferred it for a day -bi-two-'anifhad 'fie-done that he should not 'have been here today." .. _._._ .. _, _ •....... . .. -,.. - .. ~--"":- --.-~-::.-- .[~] .~:,·At. P(ige.~,1,Oithe learned. Chief) ustice Justifies his ~decisio!lJ)QLto,_. .:':::refer.:iliealleged breach of the righf:Q[fr~~4Qritof~~resSidilrUi1der. ",. for . , Article 22.' (1), _..._........:..._...._•......_._.".... '.' . . . :-. exercised' hence, the-request frivolous. Is . the .reason thaL~,'tb~ ~right:,haS~*eaay-:been·····..... .-i .;.' tn-myvteWerroneous:'::!-~- :". :':'~~;.-··.'··.·i --:.l['.):..• :.?~..;-;;..:.. :.....: ..···.~···:_._.·:~.·';; . .: .,. .. Finaiiy, I ant of the opinion that.allrequests Q(..~f',..r'""I''* .- ..... ~.- , ~."..""'~". .- __ ......, .. ,. ., _.. ,.. ':-.. . ...;. '.,.- ~i~~.~~~~~~~~~:ili~e~·~~~~l~~~~~~~~~~~_: _ . >--,.,,,,._." ..• .....-~~.".-~..'.." .",-_'..,..~.,.','"7·~:~f:;~;,,~.~~~~~~::~~:.~~ ..:~"··'·-.,-· ........ - ..._ ~--:---:' . -.~ ~ of' ,..... - --_ ...'._' h._~_~. .,~ '_....:·'·:······~tc~;;:t;;~ili~~~66~~~i6{iTh~f~f6~~~d~r~~~i~~d;~~t;h~t~iliJ;t'····:~;-;~::::~:~~':~~~~?t:~··.'>,::.· . -- is much merit in thegroiinds of appeal: j)"artict.llarlYgrounds (a) arid (6. In doing so, I .note that underrule 54.(5) of the Rules of this Court, "the . . Court in deciding the appeal shall be confuted to the grounds set forth by the Appellant or the order sought';' . . '. . J would find that the 'appeal succeeds arid thattheAppellant.should be granted relief in terms of order (c), he prayed for and is quoted above . . And I would decide accordingly. In coming to this decision, my principal concern is my, duty' to uphold our Constitution which is the supreme law. of the Republic of Seychelles and which embodies the. constitutional rights of its. citizens .and no other interpretation should,be placed thereon .. My brothers, the President of the Court and my brother Justice Bwana have come to a different conclusion, and it is with due respect that I differ. , ... '" .•. ....-<.".~-- -- . '" ..• Delivered at Victoria. Mahe. Ithis 20~.day of-May, 2005. _ .., - ..,' . _ " _,,, .. -_._,---------, .. ~ " -;-._ _ .. _ _._ ~ - .. -.__ . t .. c. .~-. "-'''-'.' .. , ...... _._