Rules of Law – Behind every passable legal system are Statute Books and Law Reports.
Recently, while in Seychelles, I tried to obtain a copy of the constitution, written in 1993 when the country became a multi-party democracy. I assumed that the original document would be available to view, proudly displayed, perhaps, as a symbol of the steps the country has taken in the last few decades. I was wrong. The constitution isn’t on display and the national archive was unable to produce either the original or a copy. I browsed the bookshops in Victoria, the capital city, many of which are stocked with political and legal literature such as Seychelles Global Citizenby ex-President James Mancham, and Crime and Law in the Seychellesby leading judge Dr S J Bwana – but no copy of the constitution.
Maybe bookshops were a long shot. After all, I don’t know how many bookshops in the US would stock copies of the US Constitution, and the US is not a country that likes to keep quiet about its constitution. So I headed to the law courts, and specifically the constitutional court, which was in session at the time. A fascinating case was being adeptly argued and overseen – it turned on the jurisdiction of the court to hear a case where it was claimed that part of the Elections Act is incompatible with the constitution. Here, surely, I could find a copy of the constitution. No, as it turned out the lawyer I asked just laughed when I asked where I might find a copy. I wouldn’t be able to find one anywhere, he assured me.
I have finally tracked down an electronic copy – partial copies are available online - despite the fact that the government took its version down from its website on May, 4, 2011 (why?!). You can view it here. But this search raised further questions. I have looked, and failed to find, the majority of Seychellois legislation. What is available online relates, for the most part, to international companies doing business in Seychelles. I have looked, and failed to find the majority of Seychellois case law. SAFLII is a fantastic resource, but judgments seem to be few and far between.
So I ask myself this: if I were a Seychellois citizen, where could I find out what the law was so that I was able to follow it? Even if I had easy access to the internet, which most citizens don’t, I still wouldn’t be able to find the legislation, or the precedent which would be used to define whether or not I was guilty in a court of law. It seems obvious – if I can’t find out what I’m not allowed to do, how can I make sure I don’t do it? Being able to know the law is a basic principle of the rule of law, and it seems a sensible one.
In reality it may be difficult to create and manage an archive of every law and a report of every case that could create precedent. To my mind, however, it is a task worth taking on. Without a public record of what the law is, any legal system is fundamentally flawed.