The Parts That Make a Whole? The Mixity of the Laws of Seychelles
More than a decade ago, George Gretton (1999: 164) noted of Scots property law that “one can live and work in a system and still massively fail to understand it in context.” Such peripheral blindness may be common across a number of legal traditions and systems. It is certainly found in the mixed, microjurisdiction of the small island republic of Seychelles. This investigation marks the beginning of comparative research on Seychellois law and legal institutions in the hope of bringing them into greater focus.
In particular, this chapter will consider Seychellois law in light of the traits, trends, and tendencies characteristic of the “third legal family,” as defined by Palmer (2012) in Mixed Jurisdictions Worldwide. For Palmer, the third legal family includes those systems that experienced double colonization, thereby combining in one jurisdiction both continental (civil law) private law and “common law” public law with judicial institutions and procedural and evidential law reflecting significant assimilation of Anglo-American legal mechanisms.
To determine the traits of the Seychellois legal system, we must examine its sources of law, substantive and procedural rules, legal infrastructure, and institutions. To analyze its trends, we need to describe its legal methodology and style. To examine its tendencies, we need to look at the values, traditions, and language underpinning the legal system.2 Finally, we must be aware that recent developments in Seychelles suggest the sustainability of its legal métissage. These developments include the establishment of a law school at the University of Seychelles and the assistance of international legal experts to modernize and equip Seychelles for economic competition.
Finally, we will attempt to determine the taxonomic context of Seychellois law. Classifying this legal system is at best tentative, especially in view of the polemic surrounding legal taxonomy and the lack of a universally accepted legal classification system (Donlan 2010a). Moreover, whether the existing Seychellois legal system will be hardy enough to remain viable is questionable.3
Geography of Seychelles
The Republic of Seychelles is an archipelago of 115 islands scattered in the West Indian Ocean between 4 and 10 degrees south and 46 to 56 degrees east and about one thousand miles east of Mombasa, Kenya, “a spot in a world of waters!” (Edwards 1893: 7). The biggest island is Mahé, 17 miles long and 5 miles at its widest. The town of Victoria, the capital of Seychelles, is on Mahé, and it is the seat of government. The only other islands of importance are Praslin and La Digue. Together with Mahé and another 40 islands, they make up a unique geological feature—the only mid-oceanic islands of granite in the world. The remainder of the islands—the Aldabra, Alphonse, Amirante, Coëtivy, and Farquhar groups—are all coralline.
The population of Seychelles is 89,700,4 a well-integrated mix of European, African, and Asian peoples. They are the descendants of the early French settlers and African slaves brought to Seychelles in the eighteenth century, of Chinese who arrived as traders in the nineteenth century, and of Indians in the early twentieth century. About 75 percent of Seychellois live on Mahé. Most others live on Praslin and La Digue; the remaining smaller islands are either sparsely populated or uninhabited.
The climate is often described as tropical but healthy. The southeast trade winds blow from May to October. The northwest monsoon winds bring heavy squalls of rain between November and April. January is the wettest month; July and August are the driest. The temperature remains constant throughout the year, at 24–31°C with humidity at around 80 percent. Onshore breezes make for a pleasant environment. The country is outside the cyclone belt.
Seychellois culture is a mixture of French and African influences. Creole is the native language;5 however, English and French are commonly used. English remains the language of government and commerce. The constitution of Seychelles in article 4 states: “The national languages of Seychelles shall be Creole, English, and French.” Since independence in 1976, Seychelles has been a member of the Commonwealth of Nations and is also a member of the Organisation Internationale de la Francophonie. It is also a member of the Organisation of African Unity and the Southern African Development Community.
The per capita gross domestic product (GDP) is US$10,727.50,6 and the public debt in early 2012 is 70 percent of GDP (Government of Seychelles 2012). The International Monetary Fund intervened in October 2008 to bail out Seychelles, whose financial crisis was exacerbated by Somali marine piracy, which today continues to negatively affect the two stalwarts of the country’s service-based economy: tourism and fisheries.
Historical and Legal Perspective
There is no record of the ancient history of Seychelles (originally named Séchelles). Navigators visited, made observations, and charted some of the 115 islands of the archipelago, which they marked as uninhabited.
Discovery and Settlement
The Cantino World Map of 1502 does show Seychelles, but the first authentic records are charts made by Pedro de Mascarenhas in 1544 and the celebrated Vasco de Gama. In their charts, Mahé (the main island) and the adjacent islands were called as sete irmãs (the seven sisters), and they were known under that name until 1742 (Bradley 1940: 1). There is a record of a landing in 1609 by the crew of an English East India Company vessel, the Ascension, but no settlement by the English (Jourdain 1905: 349). There is no doubt, however, that the islands were a pirate retreat. The conditions were ideal: the islands were uninhabited and had good water, plentiful trees for masts, numerous creeks where ships could be repaired, plenty of food, and no men-of-war to interrupt the nefarious activities. Indeed, during the administration of General Charles Decaen in Mauritius (1803–1810) and the battle for the supremacy of the Indian Ocean, corsairs (pirates) were encouraged to operate and were furnished with ships and arms (Bradley 1940: 8).
The history of Seychelles is closely associated with that of Mauritius. Mauritius had been discovered by the Portuguese, but it was not settled; the Dutch settled the island in 1638 and gave it its name (after Prince Maurice of Orange), but they abandoned it in 1712. The French took possession of Mauritius in 1715 and renamed it Isle de France. It was administered by the Compagnie des Indes (French East India Company) from 1722. In 1742, after Mauritius was ceded to France, the island’s governor-general, Bertrand-François Mahé de Labourdonnais, who was concerned about English ambitions in the Indian Ocean, decided to prevent any attempt by the English to colonize other uninhabited islands in the area and dispatched Captain Lazare Picault on a voyage of discovery (Lionnet 1972: 57). In 1742, “on Thursday 22 November at 4, they approached the shores of an unknown island, lowered their boats and made a reconnaissance of the shores” (Bradley 1940: 10).
Picault named the island Isle d’Abondance. Another journey was made to the island in 1743, and it was renamed Mahé after the governor-general. As the French then turned their attention to India, there was a hiatus in the history of Seychelles. The break lasted until 1756, when René Magon, then administering Mauritius on behalf of the French, learned that the English were sending ships to discover any uninhabited islands in the Indian Ocean. To forestall his enemies, he sent an Irish sailor, Captain Cornelius Nicolas Morphey, to take formal possession of the islands for the French king. The islands were renamed Séchelles, perhaps after Jean Moreau de Séchelles, the French controller-general of finances (Bradley 1940: 10).
The French did not establish a settlement on the islands, however, until 1770 (Scarr 2000: 2). Poor white families and landowners with slaves took up habitations, planting maize, rice, bananas, coffee, cotton, and spices such as nutmeg, pepper, and cinnamon. On November 5, 1788, during the administration of Louis Jean-Baptiste Philogène of Malavois, the first law of Seychelles was decreed, putting an end to the freebooting life of the settlers (Bradley 1940: 34–35).7
French Rule: Transplantation of Civil Law
Seychelles was a dependency of Mauritius, administered locally by appointed administrators. News of the French Revolution changed this arrangement temporarily. The settlers, in the spirit of the revolution, set up their own colonial assembly, drafted a constitution without reference to Mauritius or France, invested the assembly with both criminal and civil judicial powers, and declared Seychelles a separate colony from Mauritius. Two attempts to reject this self-assertion, to modify the self-imposed constitution, and to bring Seychelles back under the control of Mauritius failed (Lionnet 1996: 191). Commandant Armand Esnouf of the Pondicherry regiment, who had been sent to retake control, was snubbed, more than likely because he tried to enforce the abolition of the Code Noir, a move that found little support among the colonists, the visiting corsairs, and slavers.
Only the arrival of Commandant Jean-Baptiste Quéau de Quinssy in Seychelles in 1793 reestablished formal control by Mauritius (Fauvel 1909: 189).8 The beginning of the governorship of Decaen, who was then captain-general of the French settlements beyond the Cape of Good Hope, put an end to the Seychelles Colonial Assembly (Fauvel 1909: 324–25). De Quinssy’s administration saw the flourishing of the colony but also a series of capitulations to the British (in 1794, 1801, 1804, 1805, 1806, and 1807), with the French flag rehoisted as soon as the British had sailed (earning de Quinssy the nickname of the “Talleyrand of the Indian Ocean”). The terms of these capitulations, however ephemeral their duration, ensured that French laws would remain in force even after the final capitulation of 1804:
[The inhabitants] will, during the period of capitulation, observe strict neutrality and will govern themselves during said period with respect to civil matters according to French law, no amendments to it being permitted. (Article 3, Capitulation of Seychelles, November 22, 1804)
In summary, the laws of Seychelles during French rule had four distinct periods: (a) the laws of the French East India Company from 1722 to 1766,9 (b) the royal decrees promulgated by the king of France from 1766 to 1790 including the Code Noir, (c) the edicts published by the Colonial Assembly of Mauritius from 1790 to 1803, and (d) the laws of Decaen from 1803 to 1815 (Glover 2011).
A Code Pénal was published October 15, 1791, and adopted by the Colonial Assembly of Mauritius in 1793. The Code Civil was promulgated in Mauritius on September 25, 1805. A new edition of the civil code, under the title of Code Napoléon, was promulgated there on September 3, 1807. Decaen published the French Code de Procédure Civile on July 20, 1807; the Code de Commerce on October 1, 1809, after several modifications; and the new Code Pénal in 1810. Some of the provisions of these codes remain in force to this day. During Decaen’s administration, litigants in Seychelles had the right of appeal to the Supreme Court in Mauritius. That court was composed of a president, vice president, three judges, four clerks, and a government commissioner with a clerk and the clerk to the court. There was no jury. Seychelles was allowed a justice of the peace, a clerk to the justice, and a clerk to the court. Criminal affairs were judged by French laws of 1670 until those laws were repealed in the revolution of 1793 (Bradley 1940: 122–23). Two notaries from Mauritius were appointed to Seychelles. Even today, in cases of land disputes and ownership of properties, deeds of these former notaries continue to be consulted.
By 1806, however, the Union Jack had been firmly planted on the soil of Seychelles, and the ever-pragmatic de Quinssy flew the capitulation flag on all ships traveling from Seychelles (Guébourg 2004). Thus, the protected ships passed without interference to the blockaded port of Port Louis in Mauritius. This passage ensured not only that trade would continue but also that Seychelles would be prosperous even during the worst hostilities (Guébourg 2004).
By July 1810, de Quinssy had received a copy of the proclamation of Sir Robert Farquhar, the first governor of the nearby Isle de Bourbon (now known as Réunion), which had been captured from the French. The proclamation invited Mauritius to surrender to British rule. On December 3 of the same year, after a short battle, Mauritius finally fell to the British, and because of its dependency on its mother colony, so did Seychelles. The terms of the Mauritian capitulation again ensured that existing laws would continue. Specifically article VIII of the 1810 Capitulation of Mauritius stated, “que les habitants conserveront leur religion, leurs lois et coutumes” (the inhabitants will retain their religion, their laws, and customs).
In 1814, when nations were negotiating the Treaty of Paris, the question of returning the islands to France was discussed. England was prepared to exchange them for its remaining French possessions in India, but France refused this proposal. The Isle de Bourbon was returned to France and, to this day, remains a French département d’outre-mer (overseas department). Seychelles, a dependency of Mauritius, stayed with the British. These three countries, cheek by jowl in the Indian Ocean, today share the same gene pool and speak very similar Creole languages, and yet they have different legal regimes.
Unlike the Canadian province of Quebec and the island country of St. Lucia, where the legal customs of Paris were still in force on cession to the British, the Napoleonic Codes had already been promulgated and applied when Mauritius and Seychelles formally passed to the British in 1814.
British Rule: Infusion of Common Law
After the capitulation, the first English governor was Sir Robert Townsend Farquhar. Despite the appointment of Lieutenant Bartholomew Sullivan of the Royal Marines as British civil agent in Seychelles, de Quinssy remained as the juge de paix, or the police court magistrate, until 1815. French laws continued to be applied unchanged (Scarr 2000: 39).
The Effects of Capitulation
The capitulation was formalized by proclamation on December 5, 1810 (Farquhar 1822). But at the Treaty of Paris in 1814, no allusion was made either to the terms of the Seychellois and Mauritian capitulations preserving French law or to the fact that the islands were ceded to Great Britain “in full right and sovereignty” (Renton 1909a: 105). Renton, in this context, argues that because the treaty was never confirmed by any imperial statute, the maintenance of French law depended solely on the capitulation and proclamation and the rule in Campbell v. Hall.10 Hence, in his estimation, the laws preserved were those enacted up to 1787 (the Code Delaleu),11 those passed between 1787 and 1803, and the Code Decaen containing the French civil and commercial codes and the Code of Civil Procedure, but not the Napoleonic Penal Code or the Criminal Procedure Code, which had never been promulgated. Consequently, until 1831, the old French Criminal Ordinance of 1671 was still observed, and the French Penal Law of 1791 was observed until 1838 (Renton 1909a: 106).
The laws enacted from 1810 to 1840 are collectively referred to as the Code Farquhar. In this respect, French law continued to operate, but in an English context. Both the English language and English law were introduced tentatively. During those first 30 years of British colonial rule, local ordinances, the governor’s proclamations, and other public acts or notices of the executive government were usually promulgated in both English and French, and both versions were deemed authoritative.12 After 1841, all laws, including those that amended the French codes, had to be written in English.13 However, in the case of R. v. Ramjan Mirza, in considering the English and French versions of the Penal Code, the Supreme Court of Mauritius stated that the accused was entitled to benefit from a contradiction or a difference between the two texts, where any existed.14 Unlike Seychelles, later legislation in Mauritius reversed this restriction, authorizing the Mauritian legislature to use the French language for amendments to codes that were drafted in French or in English and French.15 Today in Seychelles, where French provisions have survived, section 21 of the Interpretation and General Provisions Act, Cap 103 of the Laws of Seychelles stipulates:
(1) Where in an Act terms or expressions of French Law are used, they shall be interpreted in accordance with French Law.
(2) Where in an Act English words are followed by terms or expressions of French Law in parenthesis, subsection (1) applies to those terms and expressions and English words shall be treated as being the equivalent only of those terms or expressions.
As for the retention of French law, in the case of Lang & Co. v. Reid & Co.,16 the Privy Council accepted that French law was preserved on the islands by the capitulations. More emphatically, in 1902, the Supreme Court of Mauritius unanimously held in the case of Colonial Government v. Widow Laborde that17
[t]he provisions in the Capitulation of 1810, ceding Mauritius to England, that the religion, laws, and customs of the inhabitants should be preserved was not abrogated by the Treaty of Paris 1814, either because the treaty was silent as to it, or because the treaty ceded the colony to England in full right and sovereignty.
But academic disputes about the effects of capitulations in international law have continued (Bridge 1997). In 1952, when the bill for the new penal code of Seychelles was first moved in the legislative assembly, Gustave de Comarmond, the member representing Praslin and la Digue, objected strenuously on the grounds that the bill contravened the terms of capitulation. The new code was eventually adopted on the recommendation of a committee of lawyers who had received the advice of Sir Sydney Abrahams, a member of the Privy Council (Lionnet 1972: 122–23). In contrast, in 1961, Sir Rampersad Neerunjun, the chief justice of Mauritius, went as far as to state that the Napoleonic Code had survived through an erroneous interpretation of the treaty (d’Unienville 1969). In 1997, the Privy Council in the case of Matadeen v. M.G.C. Pointu18 had to consider whether La Déclaration de Droit de l’Homme et du Citoyen (The Declaration of the Rights of Man and of the Citizen)—more specifically the concept of égalité (equality) contained therein—which was adopted in 1793 by the Colonial Assembly of Mauritius, had survived capitulation. The council found that it had, but that the provisions of the declaration could not curtail the application of the provisions of the constitution of Mauritius, which was supreme law.
Initial Mixing of Common Law and Civil Law
In a recent article, d’Unienville (2012) argues that the personal efforts of Farquhar, who was sympathetic to the plight of the settlers, led to the maintenance of French laws in the colony. Farquhar traveled from Mauritius to London and for two years negotiated with Lord Henry Bathurst, the colonial secretary; his undersecretary, Henry Goulburn; and the astute legal adviser James Stephen to persuade them not to impose English law on the colony and its dependencies.
A letter from Bathurst dated March 28, 1820, certainly confirms the retention of French laws and infuses in the mix the first English legal doctrines (Clark 1834: 586). This letter is confirmed by an Order in Council of 1831, namely, that the Civil, Commercial, and Civil Procedure Codes would be preserved except where modification was necessary and that English criminal law would henceforth be applied. A jury would be impaneled for criminal cases; civil courts would be presided over by a judge and two assistants; the Court of Appeal would be reduced to four judges, two of whom would be English and would be invested with the powers of the court of equity as well as that of a court of law; and civil commissioners would be invested with the powers of justices of the peace.
Seychelles continued to be administered by civil agents and commissioners under the direct orders of the governor of Mauritius and under Mauritian law applicable by implication. Although an Order in Council of 1888 created both a Legislative Council and a Supreme Court in Seychelles, the order reserved legislative power to Mauritius, and the Supreme Court of Seychelles was subordinate to the Supreme Court of Mauritius.
Edwards (1893: 7) made the following observations:
The islands are but English in name: indeed they are as much French as they were a hundred years ago. The language, manners, customs are emphatically French; French is spoken in the Law Courts, where French law is also pre-eminent.
And of the law in action,19 Edwards (1893: 18–19) notes:
Judicial work in Seychelles, during the last nine years has been administered by Mr. Justice Brown, and it is generally conceded that he has proved an upright and painstaking-individual, always acting—up to the light that is within him. He has certainly upheld the dignity of the bench in a Nebuchadnezzarian manner, and his court is a pattern of order, cleanliness, and sobriety. He seldom commits himself to an impromptu judgment, rather than that there should be any miscarriage of Justice, to take time to consider. True, the time often extends over a long period, yet judgment when given, is exhaustive, if not always lucid.
By 1900, there was still only one court in Seychelles that had jurisdiction over both civil and criminal matters not necessitating a jury. In cases of appeal and serious criminal offenses, recourse was made to the Supreme Court of Mauritius (Murat 1900: 14).
The digest of decisions of the Court of Appeal from 1870 to 1902 shows that the judicial style of decision writing had already changed from the French style to that of English reasoned judgments (Bourke 1934).
Only in 1903 did Seychelles become a fully fledged colony detached from all control by Mauritius.20 The laws in force were preserved except where they were incompatible with legislation passed by Seychelles.21 But it is also at this juncture that the erosion of French law began. The mixing with English law accelerated more rapidly than in the case of Mauritius, whose laws developed separately from those of Seychelles from that point forward.
The following examples illustrate the potent mixing that took place and the various problems that were encountered.
Section 21 of the 1903 Order in Council (preserved by section 12 of the current Evidence Act, chapter 74 of the Laws of Seychelles) states that “except where it is otherwise provided in this Act or by special laws now in force in Seychelles or hereafter enacted, the English law of evidence for the time being shall prevail.”
In the fraud case of Paul Gardette v. R.,22 the Court of Appeal for East Africa, in an appeal from Seychelles on whether oral evidence could be admitted despite the prohibition in article 1341 of the Napoleonic Code (as the principle had been extended to criminal trials in France), stated that the English law of evidence applied, at least in criminal trials. In 1969, in the case of Kim Koon & Co. Ltd. v. R.,23 the question arose as to whether section 12 of the Evidence Act meant the English law of evidence from time to time or as in force on the date of enactment of section 12. The court held that it meant the law as it stood only at the time of the enactment of the Evidence Act. Sauzier suggests that this limitation applies only to statute law and not to courts interpreting common law.24 A question does arise, however (and this question has not been decided), regarding whether this limitation would include new concepts of the common law (Sauzier, Angelo, and Klauser 2011: 2).
In civil cases, the English law of evidence prevails except where special laws exist, and such special laws are numerous in terms of the provisions of the Civil Code. They can sometimes go not only to proof but also to the validity of transactions, as in the case of gifts, wills, leases, and mortgages (Sauzier, Angelo, and Klauser 2011: 5).
Another example of mixing is the 1904 Penal Code. This code was, in effect, a patchwork of the previous French code with some importations from the British Indian Penal Code (Scarr 2000: 149). It remained in force until 1955, when it was replaced by a new penal code, this time based on the Penal Code of East Africa, which was itself derived from English law.25 In deciding criminal cases to this day in Seychelles, Mauritian, Indian, East African, and English precedents are referred to. Lately, cases from the British Commonwealth have also been relied on (Angelo 2010).
The Seychelles Code of Criminal Procedure and the Seychelles Code of Civil Procedure were promulgated, respectively, in 1919 and 1920. In the case of the latter, again because of the retention of the Napoleonic Code, several provisions of the original French Civil Procedure Code were also saved. One provision includes the quaint but useful French procedure of interrogatoire sur faits et articles (interrogatory on facts and acts pertinent to the case), contained in sections 169–170 of the code (sections 162–67 of the present Seychelles Code of Civil Procedure). In such circumstances, the party called to testify does not do so on oath and is treated as an adverse witness for the purpose of obtaining an admission or statement prejudicial to the testifying party’s cause or to substantiate the opponent’s case. The procedure is most commonly used to obtain an aveu judiciaire (judicial admission) or to get around the rule against oral evidence in article 1341 of the Civil Code of Seychelles, where a party to a suit is unable to provide adequate proof of the averments in the pleadings.
Section 327 of the present Seychelles Code of Civil Procedure expresses the status quo for French provisions that have survived and for those that are obsolete by stating, “Articles of the French Code of Civil Procedure repealed by any law which is repealed by this Code shall remain repealed.”
Independence: Pragmatism and a Hybrid Legal System
In the years preceding the independence of Seychelles from Great Britain, the colony was groomed for the event. It was determined that several aspects of its legal system had to be modified or tweaked if it was to meet the challenges of nationhood. In addition, the construction of new shipping facilities and the Seychelles International Airport in 1971 awakened the islands to the economic realities of the twentieth century. Sauzier (2010) summarizes the position thus:
This event had the same effect as the kiss of Prince Charming on Sleeping Beauty. Seychelles opened up to the world and experienced an immediate economic boom. This change required an updating of the law, especially the Civil and Commercial Codes, in order to bring them in line with the economic reality of Seychelles.
To modernize and equip Seychelles with the requisite economic and legal tools to meet the new challenges of a young nation, it was necessary to redraft the Seychelles Code of Commerce. The work was undertaken by the English expert, Robert Pennington, who had done similar work for Trinidad and Tobago. The Code of Commerce was largely replaced by the Companies Ordinance 1972, which was based on English company law. Few provisions of the French code of commerce promulgated in 1809 survived the revision but the original numbering is preserved although the provisions are translated into English. The most important provisions that remain are those regulating commercial books, pledges, the sale of goods, and arbitration.
The most dramatic change to the legal landscape came in the work of A.G. Chloros, who was charged not only with the revision of what remained of the code of commerce after the promulgation of Pennington’s new company law but, more important, with the Napoleonic Code. Chloros preserved the shell of the Napoleonic Civil Code, which had been introduced in 1808, thereby maintaining the 2,281 articles, although not all the 2,281 articles remained in existence (Chloros 1977: 7). Some interesting parallels with other jurisdictions may be made. Article 1, largely borrowed from the Louisiana code,28 states: “Law is a solemn and public expression of legislative will” (Chloros 1977: 7; see also Bogdan 1989: 44–46).
Other innovations concern judicial appointment of guardianships.29