Valabhji v Republic & Ors (CP 4 of 2023) [2023] SCCC 9 (21 November 2023)

IN THE CONSTITUTIONAL COURT OF SEYCHELLES In the matter between LAURA VALABHJI (rep. by Samantha Aglae & France Bonte) AND Reportable CP04/2023 PETITIONER THE REPUBLIC (rep. by Hemanth Kumar & Nissa Thompson) 1ST RESPONDENT THE ANTI-CORRUPTION COMMISSION 2ND RESPONDENT (rep. by Edmund Vickers & Skelley) THE ATTORNEY GENERAL (rep. by Hemanth Kumar & Nissa Thompson) 3RD RESPONDENT Neutral Citation: Valabhji vs The Republic & ors (CP0412023)[21 November 2023} Before: Heard: Delivered: G Dodin I, (Presiding) B. Adeline and D. Esparon II. Written submissions 21 November 2023 RULING OF THE COURT Dodin J, Adeline J and Esparon J [1] The Petitioner, an Attorney-at law, avers that she was arrested at the Seychelles International Airport on the 18th November, 2021 by officers of the National Crime Agency UK acting under the instructions of the 2nd Respondent, the Anti-Corruption Commission. Several items, both personal and professional including a laptop, mobile phones, pen drives, notebook and paperwork were seized from the Petitioner. The Petitioner was then transported to Central Police Station in Victoria and kept in detention. She has since been remanded at several detention facilities until today. Subsequent to her arrest, the Petitioner's law Chambers was searched and several files and documents pertaining to her practice, her clients and court cases in which she was holding brief or appearing in Court were seized as well. The Petitioner's house was also searched and several items and documents were also seized. The Petitioner avers that due to those seizures, the following cases she was handling have been compromised: R v Rosanda Alcindor CR102/21, R v Rosanda Alcindor and others in CR103/21, Multichoice and another v Intelvision CS 46 of 2020, Multichoice v Intelvision Network Limited and Intelvision Limited CMA J 94 of2019 and Vijay v Felicite Island Development Limited CS. No.3 of2011. [2] The Petitioner avers that the 1st and 2nd Respondents actions are in contravention of Article 20 (1) (a) and (2) (a), (b), (c) and (d) of the Constitution and listed the contraventions as follows: A. The l" and 2nd Respondents failed to have in place safeguards' and procedural guarantees for protection on confidentiality of lawyer - client relations during search and seizure at a lawyer's home and office and such is continuing. B. The 2nd Respondent did not have in place safeguards and procedural guarantee to properly identify which materials and items seized at the Petitioner's home belonged to her which couldpotentially contained LPP material andfurther failed to prevent violation of confidentiality of lawyer - client when storing and sifting through such seized items and material and this is still continuing. C. That the 2nd Respondent handled and accessed the devices and documents of the Petitioner which contained LPP materialprior to establishingprocedures for such handling and access thereof and contrary to procedures set by the trial court and this is still continuing. D. That the 2nd Respondentfailed to safeguard devices and documents of the Petitioner even when on theface of it they clearly belonged to the Petitioner and potentially could contained LPP material and this is still continuing. E. That the I" and 2nd Respondents contrary to law, searched, seized, detained, accessed devices and documents not relating to the search warrant and offences the Petitioner was being investigated for, of the Petitioner breaching her right to privacy and this is still continuing. F. That the 2nd Respondent contrary to law restricted the client accounts of the Petitioner and accessed and went through the statements of such accounts without any regard to protection of confidentiality of lawyer - client relations when going through the Petitioners client's accounts bank statements and this is still continuing as those documents and devices containing those documents are still with the 2nd Respondent. G. The I" and 2nd Respondent interfered with the Petitioner's right to respect and abide by her legal professional lawyer - client confidentiality which is within the scope of her private life and this is still continuing. H The 2nd Respondent's searches and seizure at the Petitioner's home and office of the Petitioner's clients casefiles, notarial documents, mobilephones and electronic and storage devices, including her work laptops, mobile phones, emails and pen drives seized at the time of her arrest, were disproportionate to the legitimate aim being pursued, namely the investigation of the USD50 million funding by the Abu Dhabi Government to the Seychelles Government and this is still continuing. J The 2nd Respondent's access and review of the Petitioner's clients case files, notarial documents, mobile phones and electronic and storage devices, including my work laptops, mobile phones, emails and pen drives seized at the time of her arrest, were disproportionate to the legitimate aim being pursued, namely the investigation of the USD50 million funding by the Abu Dhabi Government to the Seychelles Government and still continuing. J The 2nd Respondent's seizures conducted at the Petitioner's home and office and the seizures resulting therefrom were contrary to sections 58 and 59 of the Anti Corruption Act 2016 and therefore unlawful. K. The 2nd Respondent's restriction and access to the Petitioner's client accounts were contrary to section 60 of the Anti-Corruption Act 2016 and has been declared unlawful by the judgement of Vidot J dated 24th February 2023 in MC78 of 2022. "[Sic]. [3] The Petitioner moved the Court for the following remedies: i. Interpret The Charter in such a way as not to be inconsistent with any international obligations relating to human right and freedoms, particularly the International Covenant on Civil and Political Rights, the convention against Torture, Cruel, Inhuman and Degrading Treatment and Punishment, and other related international human rights instruments. ii. Interpret The Charter in line with Article 48 (a to d) of the Constitution. iii. To order that this case shall takeprecedence over other matters before the Supreme Court and be heard as a matter of extreme urgencypursuant to Articles l S (9) and ]25 (2). [4] The Petitioner further prayed for the following: a) "Adjourn the hearings in R v Rosanda Alcindor CRi02/2], R v Rosanda Alcindor and others in CRi03/2i, Multichoice and another v Intelvision CS 46 0[2020, Multichoice v Intelvision Network Limited and ]ntelvision Limited CMA ]94 o[ 20]9 and Vijay v Felicite Island Development Limited CSNo.3 0[20]1 which are all pending before the Supreme Court, until the completion of the proceedings before this Court and the return of those client casefiles and documentation to the Petitioner. b) Order the 2nd Respondent to make available to the Petitioner the recording made during the meeting with officers of the 2nd Respondent, the Petitioner and her lawyer and the Prison Escort Officer when viewing the evidence bags of material seized from the Petitioner's office in April 2022 at the 2nd Respondent's offices at Victoria House. c) Grant an interim injunction against the 2nd Respondent prohibiting the 2nd Respondent's continuous access and review of the Petitioner's clients' casefiles, notarial documents, mobile phones and electronic and storage devices, including the Petitioner's work laptops, mobile phones, emails and pen drives, until thejinal determination of this Petition. d) Order the 2nd Respondent to return all the Petitioner's case jiles, notarial documents, mobile phones and electronic and storage devices, including my work laptops, mobile phones, emails and pen drives. e) Declare that the Petitioner's rights above mentioned have been contravened. j) Declare that the acts and omissions of I" and 2nd Respondents above-mentioned contravened the Petitioner's rights. g) Make such declaration, issue such writs and give such directions as it may consider appropriatefor thepurpose of enforcing or securing the enforcement of the Charter and disposing of all the issues relating to the application. h) Make such additional order under this Constitution or as may beprescribed by law to give effect and to enforce the Petitioner's fundamental rights. i) Order the l" and 2nd Respondents to pay the Petitioner the sum of SCR 2 million each as compensationfor the violations of her rights. j) Grant any remedy available to the Supreme Court against any person, or authority which is the subject of the application or which is a party to anyproceedings before the Constitutional Court, as the Court considers appropriate. k) The whole with cost of this Application. "[Sic]. [5] The 1st Respondent raised the following preliminary objections pursuant to Rule 9 of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules 1994: a. The complaints raised by the Petitioner as against the lsi Respondent do not give rise to any primafacie or arguable contraventions of the Constitution of the Republic of Seychelles and therefore should be dismissed on this basis alone (see Mellie v Government of Seychelles & Anor [2019) SCCA 40 and Peter Lesperance v Benny Bastienne & Ors [2022} SCSC 4). b. The Petitioner has failed to properly particularise the grounds pleaded against the ]SI Respondent. c. There is otherwise adequate means of redress before the Supreme Court in respect of the contraventions alleged in the Petition. d. The Petitioner does not have sufficient standing to seek the relief pleaded to at paragraph a) of the prayer. " [Sic]. The 1st Respondent moved the Court to dismiss the Petition in its entirety. [6] The 2nd Respondent raised the following objections to the Petition: 1. The complaints raised by the Petitioner do not establish aprima facie case. Thefollowing test would have to be met for the Petitioner to establish a bona fide argument for relief (following Michel v Dhanjee): a. There is a contravention or likely to be a contravention of the Constitution; b. The person has a personal interest that is being affected by the contravention (in other words he has locus standi injudicio to seek redress); c. Theperson whose interest is likely to be effected by the contravention cannot obtain redressfor the contravention under any other law,' d. The question raised by the petitioner is notfrivolous or vexatious. The Petitioner's Complaint does not meet the test: a. The Petition does not establish a contravention or likely contravention of the Constitution. b. There is not a direct link shown between any purported contravention and the personal rights of the Petitioner. c. Adequate means of redress can be, and should have been, obtained through other means. d. The attempt to pursue the matters, and by this course, has circumvented due process in the Supreme Court, and is accordingly vexatious. In relation to these matters: The Petitioner is not a party to the cases referenced, nor a party's legal representative. In such circumstances, there can be no direct link between any purported contravention of the Constitution in relation to the conduct of and continuation of those cases, and the Petitioner's personal rights. The Petitioner does not have standing to seek the reliefpleaded in relation to those cases (e.g. requesting their adjournment). In relation to material that may attract legal professional privilege, the privilege is that of the client, not the Petitioner. The conducting of an LPP review, which seeks to ensure that privileged material is not considered in the course of a criminal investigation, does not impinge upon, let alone breach, the Constitutional rights of the Petitioner. Again, there is no direct link between the Petitioner's personal rights and the purported contravention claimed. Documents and digital devices belonging to the Petitioner were seized pursuant to lawfully obtained warrants issued by the Supreme Court. The Article 20(1) right to privacy is not unqualified, as Article 20(2) makes clear. The law makes provision for lawful search and seizure for the purpose of the investigation of suspected criminal offences. Lawyers are not immune to such investigation. There was accordingly no prima facie breach of the Petitioner's Article 20 right to privacy. The Petitioner's attempt to elide the Article 20 right to privacy with the conduct of a review of lawfully seized material for items that may be subject to legal professional privilege (attached to her clients) is misconceived. In any event, there is adequate means of redress in relation to such matters, by way of requests to the ACCS, or applications before the Supreme Court. Indeed, Rosanda Alcindor has pursued the matter before the Supreme Court, in which the Court has made orders which are currently in progress. The Petition raises a litany of disputed factual assertions. It represents a partisan rehearsal of facts which ware substantially in dispute, including whether the purported material exists at all, and whether the material was in fact seized by the 2nd Respondent during lawful searches of premises associated with the Petitioner. The Constitutional Court is a forum for determining whether there has been a contravention of a Constitutional rightts), notfor the litigation and resolution of complexfactual disputes. The Court should not permit the Petitioner to circumvent the normal remedial routes available not only to her, but more importantly the parties of the proceedings named should they have complaint e.g. the Supreme Court, which would be the appropriate fact-finding forum, and the appropriate forum for redress. The Petition is not only premature in these circumstances, but the Petition does not identify any arguable breach of the Constitution and certainly not one that affects the personal rights of this Petitioner. COUNCLUSION It is submitted that the Petition ought to be dismissed in its entirety at this stage. "[Sic]. [7] In the Petitioner's reply and submission on the preliminary objections, the Petitioner argued that this Petition is claiming a violation of her right under article 20 of the Constitution. She further argues that the right to privacy is not limited to her personal right but also extends to her privacy as an Attorney. She referred the cOUlito the cases of Michel v Dhanjee (supra), Chow v Gappy SCA J0/2007 and Leotsakos v Greece (application no:30959/J 3) in support of her arguments. [8] The Petitioner further submitted that she remains the instructing party in the cases pending before Court and instructing new counsel for some of the cases whilst still holding brief and would be continuing hearing in one of the cases. [9] The Petitioner further submitted that the fact that the seizures were made under warrant does not justify the 2nd Respondent's holding on to the items seized, especially since the charges against her brought by the 2nd Respondent have been withdrawn. The Petitioner further argues that each day the 2nd Respondent hold on to these material and devices, the 2nd Respondent remains in breach of the Petitioner's right and confidential information pertaining to her clients in respect of pending or continuing cases prevents the Petitioner from effectively instructing the new counsel. [10] The Petitioner submitted further that the Petitioner has established a prima facie case against the 2nd Respondent by having set down the contraventions of article 20 of the Constitution and all the circumstances which give rise to the contravention were and are still well within the knowledge of the 2nd Respondent.. The Petitioner referred the Court to the cases of Mellie v Government of Seychelles (supra), Mancienne Civil Appeal no: J5 of J996, Morin v Minister for Land Use (2005) and Michel v Dhanjee (supra) in support of the argument that it has a prima facie case and that the Petition is not frivolous or premature. [11] Article 46 of the Constitution makes the following provisions relevant to this case: "(J)A person who claims that a provision of this Charter has been or is likely to be contravened in relation to the person by any law, act or omission may, subject to this article, apply to the Constitutional Court for redress. (2)An application under clause (1) may, where the Constitutional Court is satisfied that theperson whose right orfreedom has been or is likely to be contravened is unable to do so, be made by another person acting on behalf of that person, with or without that person's authority. (3)The Constitutional Court may decline to entertain an application under clause (1) where the Court is satisfied that the applicant has obtained redress for the contravention under any law and where the applicant has obtained redress in the Constitutional Court for any matter for which an application may be made under clause (1), a court shall not entertain any applicationfor redressfor such matter except on appeal from a decision of such court. (4)Where the Constitutional Court on an application under clause(1) is satisfied that adequate means of redressfor the contravention alleged are or have been available to the person concerned in any other court under any other law, the Court may hear the application or transfer the application to the appropriate courtfor grant of redress in accordance with law. (8)Where in an application under clause (1) or where a matter is referred to the Constitutional Court under clause (7), the person alleging the contravention or risk of contravention establishes a prima facie case, the burden of proving that there has not been a contravention or risk of contravention shall, where the allegation is against the State, be on the State. " [12] The Petitioner's claims that she brings this Petition under article 46(1) and the provision of the Charter the Petitioner claims to have been violated is article 20 of the Constitution. Article 20 provides as follows: (1) Every person has a right not to be subjected- (a) without the consent of that person, to the search of the person or property or premises of that person or to the unlawful entry by others on the premises of that person,' (b) without the consent of the person or an order of the Supreme Court, to the interception of the correspondence or other means of communication of that person either written, oral or through any medium. (2) Anything contained in or done under the authority of any law shall not be held to be inconsistent with or in contravention of clause (J)(a) to the extent that the law in question makes provision- (a) that is reasonably required in the interest of defence, public safety, public order, public morality, public health, the administration of Government, town and country planning, nature conservation and the economic development and well-being of the country,' (b) that is reasonably required for the purpose of protecting the rights or freedoms of other persons; (c) that authorises an officer or agent of the Government or a local authority, or a body corporate established by law for public purposes, to enter on the premises of any person in order to inspect or value those premises or anything therein for the purpose of any tax, rate, due or duty or in order to carry out work connected with any property that is lawfully on those premises and that belongs to the Government or that authority or body corporate, as the case may be,' or (d) that authorises, for the purpose of enforcing of the judgment or order of a court in any civil proceedings, the search of any person or property by order of a court or the entry upon any premises by such order. except sofar as that provision or, as the case may be, the thing done under the authority thereof is shown not to be necessary in a democratic society. " [13] The Petitioner also raised the issue of conflict of interest between the JSI Respondent and the 3rd Respondent by being represented by the same person. The 151 Respondent has in fact stated that although at this stage, the 151 and 3rd Respondents are being represented by one counsel, a decision will be taken at the appropriate stage if there is potential for conflict between the position of the 151 and 3rd Respondent. In the case of Umarji & Sons (pry) LTD v Government of Sevehelies & Drs (CP 0412016) [20177 SCCC 3 (30 March 2017 which was referred to by the Petitioner in her submission, the COUlistated thus: "...we are convinced that the position of the Third Respondent under rule 3 (3) of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules is that of an amicus curiae. However, as the principal legal adviser to the Government ofSevchelles he has the right to defend the Government of Seychelles when there is no conflict of interest between the position he will be taking up as amicus curiae and in relation to the defence he will be raising (or the Government." [Emphasis ours]. [14] We are also of the opinion that as so far the 3rd Respondent has not taken a position in respect of the Petition, there is no conflict between the position of the 151 Respondent and the 3rd Respondent. This hearing on the preliminary objections is between the Petitioner and the 151 and 2nd Respondent only. [15] The 4 objections raised by the 151 Respondent are that: 1. the complaints raised by the Petitioner as against the 151 Respondent do not give rise to any prima facie or arguable contraventions of the Constitution of the Republic of Seychelles. 2. The Petitioner has failed to properly particularise the grounds pleaded against the 1st Respondent. 3. There is otherwise adequate means of redress before the Supreme Court in respect of the contraventions alleged in the Petition. 4. The Petitioner does not have sufficient standing to seek the relief pleaded to at paragraph a) of the prayer. [16] The 2nd Respondent raised similar objections although in a more elaborate form and include in addition that the Petitioner has other means for redress and has in fact sought certain redress before the Supreme Court and that the Petition is premature and fails to identify any arguable breach of the Constitution that affects the personal right of the Petitioner. [17] The locus standi of the Petitioner is intrinsically linked to whether the Petitioner has established a prima facie case under the provision of the Constitution alleged to have been violated. The Petitioner's contention is that her personal rights and her rights as an attorney at-law under article 20 of the Constitution has been violated. Article 20 of the Constitution proclaims that "every person has a right not to be subjected without the consent of that person, to the search of theperson orproperty orpremises of thatperson or to the unlawful entry by others on the premises of that person. " However, the same article provides that "anything contained in or done under the authority of any law shall not be held to be inconsistent with or in contravention of clause (l)(a) to the extent that the law in question makesprovision that is reasonably required in the interest of defence, public safety,public order, public morality, public health, the administration of Government, town and country planning, nature conservation and the economic development and well-being of the country". [18] The Petitioner does not challenge the validity of the search warrants per se as having been issued in contravention of article 20 but argues that certain items seized were either outside the provisions of the warrants or in breach of her right to privacy both personal and professional and that some of those items seized were in breach of lawyer-client privilege. [19] Whilst in the broad sense, legal professional privilege might fall within the perspective of privacy intended to be covered by article 20 of the Constitution, we find that such privilege does not provide for an unfettered right which forbids any form of penetrating the veil of protection under the exceptions to article 20. As such, we find the Petitioner's contention that the breach or potential breach of her professional privilege or that of her clients amount to violations of article 20 to be misconceived. [20] Further, we hold that since the warrants issued were in accordance with relevant laws promulgated to enforce the exceptions to the right to privacy under article 20, the Constitutional Court is not the right forum to address any possible misdeed by the relevant authorities or officers who acted under the warrants or outside the scope of the warrants issued under the existing law, which law is not being challenged in this Petition. [21] In deciding whether the Petitioner has locus standi, we find guidance in the pronouncements of the Court of Appeal in the case of Michel v Dhanjee [supra] and later adopted in Mellie v Government of Seychelles [supra]: "The clear and concise test to be applied to decide if a prima facie case is made out as contained in the provisions stated above may be summarised thus: (a) there Constitution is a contravention or likely to be a contravention of the (b) the person has a personal by the contravention (in other words he has locus standi redress) interest that is being or likely to be affected in judicio to seek (c) the person whose interest cannot obtain redress for the contravention under any other law is likely to be affected by the contravention (d) the question raised by the petitioner is not frivolous or vexatious. " Then and only then can the case proceed to hearing. This test significant a bona fide argument for relief is of importance with the purpose of establishing if the petitioner has " [22] We have analysed the Petition and Affidavit setting out the alleged violations. The Petitioner has pleaded multifarious irregularities in the searches and seizures by the 1SI and Respondents. However without the Petition establishing a clear link between the infringement being claimed and the constitutional article alleged to have been or which is I likely to be violated, a prima facie case has not been established. We find the transgressions pleaded, ifproved, would only amount to violations oflaws enacted as exceptions to article 20 of the Constitution and not violations of article 20 of the Constitution itself. [23] Consequently we find that the violations upon which this Petition is founded do not give rise to a prima facie or arguable contravention of the Constitution. We find therefore that this case cannot proceed as a constitutional matter. We uphold the 1st and 2nd Respondents preliminary objections on this point. We therefore do not find it necessary to address the other points raised in objection. This Petition is dismissed accordingly. Signed, dated and delivered at Ile du Port on 21 day of November 2023. G Dodin Presiding Judge - dF. Jp,,/vcs D. Esparon Judge 15