By M. K. Rao [email@example.com; firstname.lastname@example.org], Legal Adviser, Ministry of Foreign Affairs, Republic of Seychelles: Views expressed herein are personal and do not reflect those of the MFA or any Department of the Government
1. On 30th March 2011 the Supreme Court of Seychelles delivered an important judgment. It upheld the decision of the Registrar of Political Parties rejecting registration of a group of people as a political party. It was on the grounds of propagation of discrimination, classification of citizens into groups; one group being superior having right to be elected, appointed and to hold office and the other group having less/no rights but liable to be deported.
2. The appellant, Mr. Christopher Gill and his friends sought registration of themselves as a political party in the name of Mouvman Seselwa Rasin (MSR). The MSR’s objectives were: Sesel Pou Seselwa – Seychelles is for those naturally born Seychellois, who were to be known as Seselwa Rasin and others who were citizens by naturalization were to be known as Seselwa Fabrike, who are entitled to be deported. It would acquire power / the Government by peaceful or legal means, if possible, otherwise by revolutionary direct action, i.e., by use of force. It also advocated control any part or territory of Seychelles by MSR.
3. The Registrar refused to register the MSR as a party since its objectives/ purposes and the means of achieving power are not legal and are contrary to the Constitution.
4. Aggrieved by this, the applicant appealed to the Supreme Court. While upholding the Registrar’s decision, the Court had not only referred to the legal and Constitutional provisions of Seychelles but also to the UDHR (Universal Declaration of Human Rights) and CERD (International Convention on the Elimination of All Forms of Racial Discrimination 1965), to which Seychelles acceded on 7th March 1978.
5. Referring to UDHR the Court observed:
Any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere; the discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State; the existence of racial barriers is repugnant to the ideals of any human society and civilization.
6. It may be noted that Article 48 of the Constitution requires Seychelles courts to take judicial notice of international instruments and decisions of international or regional bodies on human rights, and to interpret the Chapter II of the Constitution (fundamental rights, duties, remedies, etc.,) in consonance with those human rights instruments and decisions. It lays down that:
This Chapter (II) shall be interpreted in such a way so as not to be inconsistent with any international obligations of Seychelles relating to human rights and freedoms and a court shall, when interpreting the provision of this Chapter, take judicial notice of –
a) the international instruments containing these obligations;
b) the reports and expression of views of bodies administering or enforcing these instruments;
c) the reports, decisions or opinions of international and regional institutions administering or enforcing Conventions on human rights and freedoms; (and)
d) the Constitutions of other democratic States or nations and decisions of the courts of the States or nations in respect of their Constitutions.
7. The Court, however, did not cite this important Constitutional provision on interpretation, nor had it referred to the International Convention on Civil and Political Rights, 1969 (ICCPR), which was said to have been pleaded by the appellant’s lawyer. Seychelles acceded to the ICCPR on 5th May 1992
8. The appellant’s lawyer also pleaded the ECHR (European Court of Human Rights) decision in Partridul Cmunistilor and Ungureanu V. Romania [Application No: 46626/99] in support of her client’s case. The Court distinguished the ECHR case/ decision from that of the MSR. The ECHR held the refusal to register PCN as a political party by the Romanian Government as violation of Article 11 of European Convention of Human Rights. The Seychelles Supreme Court quoted the Romanian party, PCN’s manifesto, which respected the “national sovereignty, the territorial integrity of the [Romanian] State, its legal order and the principles of democracy. None of [PCN] members shall defame the country and the nation, promote war and national, racial, class or religious hatred, encourage discrimination, territorial separatism or public violence, or engage in obscene and immoral activities”. The Court pointed out that the MSR manifesto was quite contrary to the PCN’s. The goals and objectives of the MSR were contrary to the laws and the Constitution of Seychelles; they disturb the sovereignty, integrity and harmony of the country. Court, therefore, concluded that the Romanian case would strengthen the case against MSR and supported the Registrar’s decision refusing to register it as a political party.
9. The Court gave allowance to the political parties and groups; they could campaign for change(s) in the laws or the Constitution and even in the legal and constitutional structures of the State. But they could do so subject to three conditions: First, the means adopted by them to effect changes should be legally acceptable means. Secondly, those means should be in conformity with the fundamental democratic principles; Finally, the very changes or amendments proposed [or] to be effected to the Constitution should not alter its basic structure or features, which could not be changed by any means. Such basic features, according to the Court, include:
(i) Supremacy of the Constitution, (ii) Republican and Democratic form of Government, (iii) Secular Character of the Constitution, (iv) Separation of Powers between the legislature, the executive and the judiciary, (v) Rule of Law, (vi) Equality before law, and (vii) Free and Fair Election, which is a basic postulate of Democracy.
10. The Court came down heavily on the very proposition of discrimination advocated by the MSR. It not only invoked the Preamble of the Constitution, a key to the minds of the Constitution authors, but also Nelson Mandela and his Long Walk against apartheid. The Court also marshalled the teachings of philosophers like Rousseau, Kant, Fichte, Hegel, Aristotle, Thomas Jefferson, etc., against MSR’s discriminatory philosophy.