When politicians feel the power of the courts in their pockets
Publish date: 16 May 2017
Issue Number: 56
Diary: A Matter of Justice
Category: A Matter of Justice
So members of the ruling African National Congress are peeved because the courts are ‘overstepping the mark’, over-reaching themselves and not respecting the separation of powers? Rather than complaining – really all the courts are doing is ensuring that government follows its own laws and procedures – they should be devoutly grateful not to be public representatives in the Seychelles. Then they would be feeling the power of the Constitutional Court: in their pockets.
Some time ago political activist Ian Delorie began lobbying against the system in terms of which members of the national assembly are awarded pensions, even if they quit their posts long before the normal age for retirement. Then he took the dispute to the Constitutional Court, saying that pensions from government funds for members of the national assembly was unconstitutional, in that the constitution did not provide for such pensions.
After years of making its way through the system, the matter was finally heard by the Constitutional Court in December 2015 and February 2016. Some 14 months later the court has given its decision: a victory for Delorie.
The decision obviously touches national representatives where it hurts most sharply. Yet I have read nothing by way of criticism of the judgment from the media in the Seychelles.
Three judges heard the matter in which Delorie asked that they should declare the National Assembly Members Emoluments Act as amended in 2008 and then its 2013 successor, violated the constitution.
As in South Africa, the constitution is the supreme law in the Seychelles, and its Article 5 provides that ‘any other law found to be inconsistent with this Constitution is, to the extent of the inconsistency, void.’
The section on which Delorie’s case turned was Article 105 (1) that provides members of the assembly are entitled to ‘salary, allowances and gratuity’ as may be provided in legislation and that these costs will come out of the government’s consolidated fund. In 1993 an Act was duly passed that provided for payments of salaries, allowances and gratuities to members of the national assembly.
But the problem identified by Delorie was something else: draft legislation introduced in 2007 intending to do away with the ‘allowances’ that had been paid up to this point to members of the national assembly, and instead ‘to provide for a monthly pension upon ceasing to hold office’ drawn from the consolidated fund. These monthly pensions were to be paid to the speaker, the deputy speaker, the leader of the opposition, the leader of ‘government business’ and to members of the national assembly. And in a 2013 amendment the pension amount was increased.
How could they be paid a ‘pension’, Delorie asked, when the constitution only authorised the payment of ‘salary, allowances and gratuity’? Clearly the constitution intended to limit the payments that could be made from the government’s bank account and just as clearly there was no intention to provide for pension payments or the constitution would have said so.
His legal representatives argued that it created an unfair situation: members of the national assembly would in any case get a national pension like everyone else, and now they would get a second pension for having been a member of the assembly. Thus this law gave special treatment to members of the assembly which was not justified since they ‘sit for a limited period, which may be one, two or three terms, and will benefit for the rest of their lives after reaching the pensionable age’.
Counsel for the government on the other hand said a pension was a kind of allowance. Since allowances were allowed under the constitution, there should be no problem with a pension. But during argument the government had to concede there was indeed a difference: while an allowance would be paid only during the term that someone was a member of the assembly, the pension would be paid after that term expired.
The court noted that the constitution provided that ‘pensions’ should be paid for just three officials: the President, the Auditor-General and the Attorney-General. Everyone else was entitled only to ‘salary, allowances and gratuities’. Thus the constitution clearly distinguished between what was to be paid to different categories of person.
A constitution was not the same as ordinary legislation, said the court. ‘We have to give extra credence to the language choices made in the drafting of the constitution given the nature of the document being drafted; the specific environment created to enable negotiations and enhanced scrutiny; and the fact that the final document was adopted by the constitutional assembly before being put to the people of the Seychelles who also adopted the constitution by referendum.’ The court could thus not assume it was ‘unintended’ that only three officials were to be paid pensions and that members of the assembly were not included.
Against this background the court found that the legislation was unconstitutional. But it was aware of the ‘impact’ of the finding on people already receiving pensions under the impugned laws, and thus decided not to make the order apply retrospectively. ‘This order will have prospective effect,’ the judges said. ‘No order is made with regard to payments already made under the Act.’
There seem to be three options open in response to the decision. The government could accept the judgment and choose to do nothing in response. Or it might decide to amend the constitution to stipulate that ‘pensions’ may be paid to additional officials. As the court broadly hinted, it would also be possible for the government to create a pension scheme for national assembly members financed from some other source than the consolidated fund.
Government response to the judgment will ultimately depend on its perception of the strength of competing pressures: on the one hand, it will want to keep members of the assembly happy; on the other, it must be aware of voters who complain that the existing pension system for assembly members is corrupt and unfair.