Letter to the Editor 06-11-2014 Political Pension: A Legalistic Approach Dear Editor, On 22 October 2014 Ian Delorie, a concerned citizen, filed a petition before the Constitutional Court challenging the legal validity of the National Assembly Members’ Emoluments (Amendment) Acts of 2008 and 2013, the latter having been assented to by the President of the Republic of Seychelles on 31 December 2013. Article 105(1) of the Constitution of Seychelles provides that the State may enact a law “to provide for the salary, allowances and gratuity of the members of the National Assembly” and in pursuance of the above provision of the Constitution the aforesaid two amending Acts have been framed to provide for the emoluments of the members of the National Assembly. Although the term “emolument” has not been expressly defined in the aforesaid two statutes, from a further reading of the acts it is evident that “emolument” is meant to cover “the salary, the gratuity and the pension of the members”. The petitioner avers that the word “pension” is a deliberate interpolation, an illegal substitution for the term “allowances” as provided in Art.105(1) of the Constitution. In other words, the National Assembly has abrogated and willfully exceeded its authority by making a law providing for payment of “pension” not envisaged by the Constitution and hence, such laws are unconstitutional and ab initio void. Since the matter is sub judice it will be improper to comment on the merit of the case. Yet from a broad understanding of the law and the contentions of the petitioner the only pertinent point for determination by the honourable Court is whether “allowances” (as in the Constitution) and “pension” (as in the impugned enactments) are palpably contradictory or mutually interchangeable. In this context reference may be made to Sec 2 of the Social Security Act 2010 which defines “emolument” to mean and include, inter alia, “ salary, allowances, gratuity and pension paid to or received by a person in respect of employment.” It is a settled law that a statute shall not be interpreted so as to be inconsistent with other statues of the same kind, class or nature (Ejusdem generis). Where there is an inconsistency or ambiguity the judiciary will attempt to provide a harmonious interpretation. There are, however, various theories of judicial interpretation of statues, the most prominent being “strict constructionism” where the judge interprets the text only as it is laid down with a focus on exactly what is written. Such a judge may be a strict “textualist” who gives primary weight to the text and structure of the Constitution without taking judicial notice of the collective intent of the original framers. For him the Latin maxim “A verbis legis non est recedendum” (From the words of the law there is not any departure) is sacrosanct and infallible. As against such a literal interpretation of a statute there is the “intentionalist” theory where a judge gives primary weight to the intentions of the founding fathers without being dogmatized by verbal technicalities. He too finds support from the Latin maxim “Animus hominis est anima script” (Intention is the soul of a document). The instant case before the honourable Court appears to be more academic or legalistic than real. Moreover, the outcome of this legal battle is of no virtual consequence inasmuch as in the event of the impugned enactments being declared ultra vires, Art.105 of the Constitution may be suitably amended forthwith in the light of the incriminating judgment with impunity. The ruling party commands an overwhelming majority of more than three fourths of the membership of the National Assembly although Art.92 of the Constitution requires only two third members for the purpose of any amendment. Yet the case filed by Ian Delorie is symbolic of the disapproval of the State action by the people of a democratic country. Eternal vigilance is the price of liberty. Harihar Panda Au Cap, Seychelles. hariharpanda@hotmail
Posted on: Wed, 12 Nov 2014 05:47:29 +0000
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