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Trinidad and Tobago High Court |
] [Hide Context] REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
Claim No. CV2012-00876
IN THE MATTER OF THE CONSTITUTION OF TRINIDAD AND TOBAGO
IN THE MATTER OF AN APPLICATION BY GLADYS GAFOOR MEMBER AND DEPUTY CHAIRMAN OF THE INTEGRITY COMMISSION OF TRINIDAD AND TOBAGO, A PERSON ALLEGING THAT THE PROVISIONS OF SECTION 4 OF THE SAID CONSTITUTION PROTECTING HER FUNDAMENTAL RIGHTS AND FREEDOMS ENSHRINED IN THE SAID CONSTITUTION AND IN PARTICUALR SECTION (b) HAVE AND ARE BEING AND ARE LIKELY TO BE CONTRAVENED IN RELATION TO HER FOR REDRESS IN ACCORDANCE WITH SECTION 14 OF THE CONSTITUTION
IN THE MATTER OF SECTION 136 OF THE CONSTITUTION AND IN PARTICUALR SECTION 136 (9) THEREOF WHEREBY THE PRESIDENT APPOINTED A TRIBUNAL IN THE PERSONS OF MR. MICHAEL DE LA BASTIDE Q.C., TC., (CHAIRMAN) HUMPRHEY STOLLMEYER J.A AND MAUREEN RAJNAUTH LEE J.
AND
IN THE MATTER OF THE INTEGRITY IN PUBLIC LIFE ACT, 2000 AS AMENDED BY THE INTEGRITY IN PUBLIC LIFE (AMENDMENT) ACT 2000
BETWEEN
GLADYS GAFOOR
Claimant
AND
THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO AND
THE INTEGRITY COMMISSSION, ITS CHAIRMAN MR. KENNETH GORDON, MEMBERS MR. NEIL ROLINGSON, PROFESSOR ANNE MARIE BISSESSAR AND MR. SEUNARINE JOKHOO
AND
THE TRIBUNAL, MICHAEL DE LA BASTIDE Q.C., T.C. STOLLMEYER J.A AND RAJNAUTH-LEE J.
Defendants
Before the Honourable Mr. Justice Vasheist Kokaram
Appearances:
Mr. Mr. Clive Phelps and Mark Seepersad instructed by Ms. Nicole De Verteuil- Milne for the Claimant
Mr. Avory Sinanan S.C. and Mr. Shastri Prasad instructed by Ms. Carol Cuffy- Dowlat, Mr. Alvin Ramroop for the first Defendant
Mr. Neal Bisnath for the Tribunal, the second Defendant
Ms. Deborah Peake S.C. and Mr. R Nanga instructed Mrs. Marcelle Ferdinand
of
J.D. Sellier & Co. for the Integrity Commission, the Interested Party
JUDGMENT
Contents
Introduction...........................................................................................
4
The
claim..............................................................................................
11
The procedural
history..............................................................................
14
The constitutional/statutory
backdrop..........................................................
17
The factual
backdrop...............................................................................
24
The
issues.............................................................................................
48
The investigative role of the
Tribunal...........................................................
49
The duty to act
fairly.................................................................................
50
The duty to act fairly and the Protection of the
law........................................ 62
Natural Justice and Preliminary
hearings................................................... 67
The “gist of the
gist”................................................................................
69
The sufficiency of
evidence..................................................................... 70
Disclosure of the
letters.................................................................................
71
Abuse of Process: (i) The President’s immunity and the section
38
Constitutional
ouster................................................... 72
Abuse of process: (ii) Availability of Judicial
Review................................... 80
Conclusion........................................................................................... 81
Introduction
136 (10) of the Constitution and
section 8(2) of the Act.
view of the public between herself
and members of the Commission, culminating in this intervention by his
Excellency, would naturally
have affected Mrs. Gafoor’s reputation as a
member and Deputy Chairman of the Commission. The very nature of the inquiry is
an investigation into her capacity to continue to hold office in a Commission
which has been charged with the powerful constitutional
role in preserving and
promoting the integrity of public officials and institutions in our democracy.
It is an investigative process
whereby her integrity in the affairs of the
Commission will be under close scrutiny by the Tribunal.
4 (b) of the Constitution of the right to the protection of the law and the right to natural justice. Although it is accepted as common ground in the proceedings that she will have the full right to be heard before the Tribunal, she contends that
at the stage at which the President is considering whether to appoint the
Tribunal or not she should have been given a fair opportunity
to be heard. In
the classic Rees v Crane1 scenario this case similarly calls
into question the duty of the decision maker in affording the individual, who
may be the subject
of a disciplinary hearing, a right to be heard at the
preliminary stage before triggering a full investigation into that
official’s
conduct.
investigation. However there is no immutable standard of the
requirement of fairness. It is not iron cased nor is it inscribed in
tablets of
stone. The constitutional principle of fairness is flexible. Although the notion
of fairness is a flexible concept, it
cannot be stretched beyond its limits of
elasticity and applied without regard to the appropriate context.
performance of those functions. Such constitutional
ousters typically receive the
2 “The consideration of these factors and their Lordships conclusion on them are not based specifically
on the nature of the judicial function or the fact that the respondent is a judge. A similar approach
would apply mutatis mutandis to the persons who could rely on the same considerations” per Lord Slynn
Endell Thomas v AG3 treatment beginning with the premise that the Court will jealously guard its supervisory jurisdiction and will be slow to uphold constitutional ousters in the face of clear breaches of constitutional rights. Secondly the Defendant contended that the motion is an abuse of the process as she was not denied her access to the courts and therefore there can be no arguable claim for breach of her “protection of the law” right. This calls for a revisiting of the Law Lord’s definition of the right to the protection for the law as
espoused in AG v Mc Cleod4,
a constitutional right often viewed through
restrictive rather than a liberal constitutional interpretative
lens.
10. From a broad overview of the facts it cannot be successfully argued that
His
Excellency acted with stealth, or stole a march on Mrs. Gafoor, or did
not involve
3 [1981] 35WIR 375
her in his deliberations before appointing a Tribunal. Complaints about the
behaviour of Mrs. Gafoor were made by the Chairman
and the two other
members in their letters written to His Excellency dated 23rd,
20th and 22nd January 2012 respectively. His
Excellency did not provide Mrs. Gafoor with copies of the letters, neither
did she make a
request to view them before she responded. She accepts that His
Excellency set out what he considered to be the “gist”
of the
complaints. She was in my view on the evidence satisfied that his
Excellency’s oral summary of the allegations against
her was sufficient
for her to pen her own response in her defence on 26th January 2012.
An objective review and comparison of the letters of complaint and her letter in
response supports the view that she
was provided with enough information by His
Excellency to be aware of the allegations of misconduct being made against her
by her
fellow members and Chairman of the Commission. This can be characterized
as having had the “gist” of the allegations.
information for herself to ponder, consider and make her response before His Excellency made the decision; that she utilized the occassion to indeed go further to suggest impliedly that the other members should resign; that there is no statutory requirement for a hearing at this stage; that she cannot be said to be caught by surprise by the remit of the Tribunal in the manner of a Justice Crane5
or a Carmel Smith6 or a Justice Barnwell7 and that
the letter response simply
highlighted and underscored the severity of the impasse in the operations of
the Commission. His Excellency prudently engaged in a
filtering exercise before
making his decision to investigate her alleged acts of misconduct. One perhaps
can speculate that had her
response been “all has been patched up”
between herself and the other members or the tone was more conciliatory in
nature,
it may have led to a different response by the President.
provisions of the
Constitution and his mandate expressed in the Gazetted
notice.
5 Rees v Crane [1994] 2 AC 173, PC
6 Carmel Smith v AG [2009] UK PC 50
7 Barnwell v AG [1993] 49 WIR 88
(a) The fair hearing issue: Although His Excellency must act fairly in the
exercise of the power to appoint a Tribunal, fundamental
fairness was observed
in seeking Mrs. Gafoor’s response to the allegations made by the Chairman
and members of the Commission
before making the decision to appoint the
Tribunal.
(b) The abuse of process issue (i): The motion was not an abuse of process on
the basis that her right to the protection of the law
was fully engaged at the
preliminary stage of His Excellency’s deliberation and she was entitled to
move the Court to articulate
this right. The protection of the law encompasses
more than simply the right to access the court but also the right to natural
justice.
(c) The abuse of process issue (ii) section 38 is a limited and not absolute ouster: The Court having been satisfied that His Excellency did properly act within the constitutional ambit of section 136 in the appointment of the Tribunal, and did observe substantial fairness in giving the Claimant a hearing before exercising his constitutional power, the full extent of the section 38 ouster applies and the Court cannot investigate the manner in which His Excellency chose to afford Mrs. Gafoor a hearing given the wide discretion of reasonable choices available to the President. He could have given her the letters, but this does not dilute the quality of the hearing offered to her before the decision was made. In my opinion for this Court to investigate the quality of that preliminary hearing would lead dangerously close to substituting the views of this Court for that of His Excellency a matter which is certainly not contemplated by the framers of section 38 and which will be in breach of the separation of powers. The effect of section 38 means at the very least that deference should be
afforded to the President in the exercise of his discretion in the manner in
which he afforded the right to be heard and at the very
highest the
Court’s supervisory jurisdiction has been ousted having been satisfied
that the President acted within the ambits
of the law and not above it.
The claim
and Professor Anne Marie Bissessar, and his failure so to do deprived the Claimant of the opportunity to answer the said allegations and/or complaints in consequence whereof the President acted unreasonably and/or abused his power and/or breached the principles of fundamental justice and fairness and/or the rules of natural justice thereby rendering the appointment of the Tribunal under Section 136 (9) ultra vires the Constitution, illegal, null and void, and destitute of all legal effect.
ii. A declaration that the appointment of the Tribunal in the persons of
Mr.
Michael de la Bastide Q.C., T.C., Humphrey Stollmeyer J.A.
and
Maureen Rajnauth-Lee J. by the President’s letter dated 9th
February,
2012 mandating the Tribunal to report to and to advise the President on the facts found after due inquiry into the matters set out in the said letter in accordance with Section 136(9) and (10) of the Constitution and, having regard to the Integrity in Public Life Act Chapter 22:01
Section 8 (2) is unreasonable, and/or an abuse of power and/or ultra vires the Constitution and/or in breach of the protective provisions of the Constitution and in particular Section 4(b) thereof.
iv. (a) A declaration that the President was not seised of any or any sufficient evidential material to base the exercise of the power vested in him by the Constitution and in particular Section 136 (9) thereof to appoint the Tribunal in consequence whereof he acted illegally, unreasonably and/or abused his power;
She also seeks an order prohibiting the Tribunal from embarking on its
inquiry until after the full hearing of the Claimant’s
challenge to the
decision of the Integrity Commission to force the recusal of the Claimant from
participating in the investigation
of Mr. John Jeremie S.C. pursuant to Section
33 of the Integrity in Public Life Act Chapter 22:01 or until further
order.
(a) The President without any or any proper evidential material (save as to the said three letters which he kept secret and the “say so” of the Chairman and two other Commissioners) appointed the said Tribunal under Section
136 (9) of the Constitution on the 6th February, 2012 which
appointment
was gazette on the 9th February, 2012, appointed the said Tribunal
whimsically in consequence whereof the said appointment of the said Tribunal in
the events
which have happened was and is unreasonable, procedurally improper,
irrational, illegal, null and void and of no legal effect.
(b) The President failed to sufficiently disclose the allegations made against the Claimant and/or to show to the Claimant the full contents of the said three letters dated 23rd, 22nd and 20th 24th or 25th January, 2012 written to him by the Chairman, Mr. Kenneth Gordon, Mr. Neil Rolingson and Professor Anne Marie Bissessar respectively and failure deprived the Claimant of the opportunity to answer the said allegations and failure so to do was and is in breach of the principles of fundamental justice and
fairness, and/or the rules of natural justice and/or is null and void and of
no legal effect.
(c) The Claimant was suspended forthwith on 9th February,
2012 by the President under and by virtue of Section 136 (11) of the
Constitution until further notice from performing
the functions of her office as
member and Deputy Chairman of the Integrity Commission without prejudice to her
entitlement to salary
and emoluments of office.
(d) An important issue in this case is the impeccable professional reputation
and integrity of the Claimant spanning fifty one (51)
years not only as a
Barrister-at-Law and an Attorney-at-Law but as a person who has held high
judicial office as magistrate, Judge
of the Industrial Court, Chairman of
several Commissions of Enquiry and Deputy Chairman of the Integrity
Commission.
(e) In the circumstances of this case where deprivation of the
Claimant’s office as Deputy Chairman and member of the commission
and the
fact that her suspension would cast a slur on her professional reputation and
integrity and do serious damage to both, the
President was duty bound not only
to inform the Claimant of sufficient particulars of the allegations made against
her but also the
precise contents of the said three letters and any complaints
howsoever made; but also to give the said letters to the Claimant to
read,
listen and consider carefully her responses thereto and thereafter to take legal
advice on the matter before acting under Section
136 (11) of the
Constitution.
The procedural history
ongoing and he obliged. The Tribunal took no part in
these proceedings and stated that it will abide by the decision of this
Court. At the first case management conference Counsel for the Tribunal did
make a statement in the following terms: “The
Tribunal has been mandated
by His Excellency the President to “undertake this commission as a matter
of utmost urgency and
with all appropriate dispatch” in the circumstances
even in light of the challenge before the court, it is the view of the
Tribunal
that provisions could be made for the Tribunal to proceed since the outcome of
the Tribunal’s exercise and its determination
as part of its mandate may
leave to the judicial proceedings being unnecessary a stay of the
Tribunal’s proceedings is not
automatic and it could be in the
applicant’s interest for an expeditious determination of the issues that
the Tribunal be allowed
to proceed with its task and that is what the tribunal
wish me to indicate to the Court.”
Claimant and Mr. Seunarine Jokhoo be recused from
hearing his matter. Thereafter followed a disagreement between the Claimant and
the Chairman and other members of the Commission over this request which
descended into hostilities leading to the intervention of
the President.
that the Claimant had not satisfied me that these
amendments could not have
8 See relief (iv)( b) of the fixed date claim for m filed on 2nd March 2012
been made at a much earlier stage. It would have led to a new case and which would have further delayed the hearing of the motion. I have noted that despite my ruling there were aspects of the Claimant’s written submission which traversed over the grounds which formed part of the rejected re amendment. I do not propose to entertain those submissions which go beyond the narrow confines of this dispute as articulated in the re-amended claim and the grounds of the re-
amendment9.
affidavit filed in parallel
judicial review proceedings10 and reference was made to
same the Martin Farrell affidavit. Insofar therefore that the context of the
dispute arose out of matters in relation with the members
of the Commission I
gave the Commission permission to remain as an interested party in the
proceedings. They were also permitted
to make submissions at the hearing of the
motion.
9 So for example the written submissions of the Claimant filed on 15th June 2012 at paragraph iv, v of page 9, the contention that the President should have informed the Claimant that the complaints may form the basis of complaints of inability to perform in her office (paragraph 26) or that His Excellency was considering making a decision to exercise his powers under section 136 (paragraph28, 31, 33)
conference was private and confidential and I am not aware of the nature of
the without prejudice discussions that ensued. Suffice
it to say that even
though this is a constitutional motion I commend the parties for having made
that step towards finding an amicable
resolution to this dispute.
The constitutional/statutory backdrop
(a) receiving, from time to time, declarations in writing of the assets, liabilities and income of Senators, Permanent Secretaries, Chief Technical Officers, members of the Tobago House of Assembly, Members of Municipalities, Members of Local Government Authorities and members of the Boards of all Statutory Bodies, State Enterprises and the holders of such other offices as may be prescribed;
(b) the supervision of all matters connected therewith as may be prescribed;
(c) the supervision and monitoring of standards of ethical conduct prescribed by Parliament to be observed by the holders of offices referred to in paragraph (a), as well as members of the Diplomatic Service, Advisers to the Government and any person appointed by a Service Commission or the Statutory Authorities’ Service Commission;
(d) the monitoring and investigating of conduct, practices and
procedures which are dishonest or corrupt.
“Persons in public life have a right to know the manner in which
enquires are to be carried out and the standard and criteria
for the initiation
of such inquiries, and the manner in which information received from the
public would be assessed and
verified. The Act prescribes very serious
penalties for non-compliance. It is therefore of vital importance that the
practice and
procedure of the Commission in relation to these matters should be
standard, uniform and predictable and should be known to persons
in public life
and to the public. Those who may be subject to criminal liability should have
the assurance that their affairs will
be handled in accordance with established
and predictable practices and procedure. “
28. The Act13 was promulgated in 2000 as its long
title suggests to:
12 C.A. CIV 60/2005
13 The Integrity in Public Life Act Chap 22:01
“make new provisions for the prevention of corruption of persons in public life by providing for public disclosure; to regulate the conduct of persons exercising public functions; to preserve and promote the integrity of public officials and institutions.” The Act established a Commission which consists of a Chairman, Deputy Chairman and three other members “who shall be persons of integrity and high standing”. It is composed of an attorney-at-law of at least ten years experience, a chartered or certified accountant and the Chairman and other members of the Commission appointed by the President after consultation with the Prime Minister and the Leader of the Opposition (see Section 4(1)). Its board is a small one and three members of the Commission of whom one shall be the Chairman or Deputy Chairman, shall constitute a quorum (see Section
4(6)).
“(a)
shall not be subject to the direction or control of any other
person or
authority” (see Section 5(2)(a)).
Additionally the Commission is charged with the authority to—
(a) carry out those functions and exercise the powers specified in this Act; (b) receive, examine and retain all declarations filed with it under this Act; (c) make such enquiries as it considers necessary in order to verify or determine the accuracy of a declaration filed under this Act;
(d) compile and maintain a Register of Interests;
(e) receive and investigate complaints regarding any alleged breaches of this Act or the commission or any suspected offence under the Prevention of Corruption Act;
(f) investigate the conduct of any person falling under the purview of
the
Commission which, in the opinion of the Commission, may be considered dishonest or conducive to corruption;
(g) examine the practices and procedures of public bodies, in order to facilitate the discovery of corrupt practices;
(h) instruct, advise and assist the heads of public bodies of changes in practices or procedures which may be necessary to reduce the occurrence of corrupt practices;
(i) carry out programs of public education intended to foster
an
understanding of standard of integrity; and
(j) perform such other functions and exercise such powers as are
required by this Act. (see Section 5(1)(a) of the Act).
28 of the Act provides for instance that
“matters of a confidential nature in the possession of persons
to whom this Part applies, shall be kept confidential unless
the
performance of duty or the needs of justice strictly require otherwise, and
shall remain confidential even after separation from
service”.
31. A member of the Commission can be removed from office by the
President.
Section 8(2) of the Act specifically provides as follows:
“(2) A member of the Commission may be removed from office by the
President acting in his discretion for inability to discharge
the functions of
his office whether arising from infirmity of mind or body or any other cause,
or for misbehaviour.”
(9) and (10) of the Constitution set out the disciplinary
scheme and are set out hereunder:
“136 (8) A decision that the question of removing the officer from
office ought to be investigated may be made at any time-
(b) in any
other case, by the President either on his own initiative or upon the
representation of the Prime Minister.
(9) Where a decision is made under subsection (8) that the question of
removing the officer from office ought to be investigated,
then– (a)
the President shall appoint a Tribunal which shall consist of a Chairman and
not less than two other members all of whom shall be
selected by the President
acting in accordance with the advice of the Judicial and Legal Service
Commission from among persons who
hold or have held office as a Judge of a court
having unlimited jurisdiction in civil and criminal matters in some part-of
the
Commonwealth or a court having jurisdiction in appeals from any such
court, and (b) the Tribunal shall inquire into the matter and report on
the facts to the President and advise the President whether the officer ought
to
be removed from office on any of the grounds specified in subsection
(7).
(10) Where the question of removing the officer from office is referred to a
Tribunal appointed under subsection (9) and the Tribunal
advises the President
that the officer ought to be removed from office, the President shall, by
writing signed by him, remove the
officer from office.”
“Where the question of removing the officer from office has been referred to a Tribunal under subsection (9) the President, after consultation with the Judicial and Legal Service Commission, may suspend the officer from
performing the functions of his office and any such suspension may at any
time be revoked by the President and shall in any case cease
to have effect if
the Tribunal advises the President that the officer ought not to be removed from
office.”
No decision has been made with regard to the removal of the officer from
office. This suspension is a holding suspension.
“137. (1) A Judge may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of mind or body or any other cause) or for misbehaviour, and shall not be so removed except in accordance with the provisions of this section.
(2) A Judge shall be removed from office by the President where the question of removal of that Judge has been referred by the President to the Judicial Committee and the Judicial Committee has advised the President that the Judge ought to be removed from office for such inability or for misbehaviour.
(3) Where the Prime Minister, in the case of the Chief Justice, or the Judicial and Legal Service Commission, in the case of a Judge other than the Chief Justice, represents to the President that the question of removing a Judge under this section ought to be investigated, then-
(a) the President shall appoint a tribunal which shall consist of
a
chairman and not less than two other members, selected by the
President acting in accordance with the advice of the Prime Minister in the case of the Chief Justice or the Prime Minister after consultation with the Judicial and Legal Service Commission in the case of a Judge, from among persons who hold or have held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court;
(b) the tribunal shall enquire into the matter and report on the facts thereof to the President and recommend to the President whether he should refer the question of removal of that Judge from office to the Judicial Committee; and
(c) where the tribunal so recommends, the President shall
refer-the
question accordingly.”
He must appoint a Tribunal. The question
here really is not a hearing before
14 Rees v Crane [1994] 2 AC 173, PC
15 Herbert Charles v AG CA76/99; PC26/2001
16 Sherman Mc Nicholls v Judicial and Legal Service Commission [2010] UKPC6
17 Barnwell v AG [1993] 49 WIR 88
appointing the Tribunal but in reality a hearing before making a decision
that the question of removing the officer from office ought
to be
investigated.
The factual backdrop
a. The Commission proposed to discuss the request of Mr Jeremie at a meeting scheduled for 19th December 2011. The Claimant was asked formally by the Commission not to attend that meeting. The Commission expressed the view that it was concerned about the perception and expectation from the wider society in the handling of that request. A vote was taken as to whether the Claimant should withdraw from deliberating
on this issue so that the Commission can freely discuss the request. In its letter dated 13th December 2011 the Chairman stated that the Claimant remained adamantly opposed to withdrawing “but the work of the Integrity Commission must go on”.
b. The Claimant in her letter dated 15th December 2011 set out
her reasons why the request by Mr. Jeremie for her recusal was in her view not
good enough reason for her not
to sit on his matter.
c. In a surprising turn of events in an article appearing in the Newsday
newspaper dated 20th December 2011 entitled “Bitter row”
it was reported that there was a bitter row between the Chairman and the
Claimant
and several matters which were the subject of the Commission’s
private deliberations were made public. Subsequently the Commission
reported
this to the police and officers from the Anti Corruption Investigations Bureau
wrote the Claimant to seek the Claimant’s
assistance in the investigation
into this leak of confidential information in the public domain.
d. The imbroglio became the subject of public commentary. In a letter to the
editor appearing in the Daily Express on 20th January 2012 the author
commented that the refusal of the Claimant to recuse herself raised questions
about her suitability as a Commission
member. At the same time the author also
commented that the Gordon-Gafoor clash makes “very interesting and
exciting reading
such will not assist the IC in fulfilling its mandate and
will further damage the Commission’s image. After several
IC
debacles Gordon is walking on thin ice.”
e. In a subsequent meeting of the Commission the decision was taken by a majority vote that the Claimant be recused from the Jeremie complaint. A letter to that effect was dispatched to Mr. Jeremie dated 19th December
2011.
g. In what she described as an impasse between the Chairman of the Commission and herself in December 2011 she sought His Excellency’s intervention by letter dated 31st Deember 2011. Curiously she supplied to the President a private hand written note written by Mr. Rolingson which was left behind after the Commisison’s meeting which she claims supports her view that external legal advice should be obtained on the issue of the recusal. She called upon the President “to encourage the Chairman to withdraw the resolution” in advance of their subsequent meeting. Indeed it was quite improper to make such a request having regard to the
independent functions discharged by the Commission. There is no evidence to
suggest that the Claimant disclosed to any of the other
members of the
Commission that she sought the President’s intervention in this manner. It
was however patently clear from this
letter that the impasse created by the
recusal decision between the Chairman and the Claimant had the potential to
affect the
further co-operation of the Claimant with the Chairman of the
Commission. The Claimant stated in her letter to the President:
“It is my
desire to co-operate fully with the Chairman but I cannot agree to go along with
something I know to be wrong and
which external legal advice has confirmed to be
the case”.
h. The Chairman responded to the Claimant’s threat of legal action by letter dated 5th January 2012 in which he pointed out that the decision taken by the Commission was after the matter was fully discussed and after taking into account all the views of the members including the Claimant. He therefore could not accede to the request. Importantly he pointed out “the Commission’s business must be conducted in such a manner that a decision once reached by the Commission after taking into account the views of all the members of the Commission is respected by all members even though a member may hold a different view.”
39. The Chairman’s letter of complaint dated 23rd January
2012 states:
Mr. President:
It is necessary that I advise you of an unfortunate situation which has
arisen within the Commission and to make my resignation available
at your
convenience in view of the pending Court Action.
This is as a result of an unwillingness of the Deputy Chairman to accept standards of behavior which the Commission is convinced are necessary if it is to build confidence and achieve credibility in the public eye.
In one instance the Deputy Chairman requested that a vote be taken on a
particular matter. When this was done with her full participation
in debate and
the subsequent voting which went against her she refused to abide by the
decision.
On another occasion when Commissioners were requested by the Chair to return copies of a letter circulated for information she responded with the unmistakable challenge “you want it come and take it nah”. There was also a muttering about violence.
She has made statements to the Commission and later denied having made
them. This is substantiated by approved minutes
of the
Commission.
There has been a pattern of leaks to the media which could only have
emanated from one or other of the Commissioners. The Deputy Chairman
has been
involved on each occasion. In one instance she was the only person other than
the Registrar and the Chairman to have had
knowledge that a certain attorney had
been invited to a very sensitive meeting of the Commission. On reflection the
Chairman cancelled
the invitation to the attorney. The following day another
“leaked” story appeared in the media announcing that the attorney
would be present at the meeting of the Commission with relevant
details.
There are other matters with which I will not burden this letter, but the
Commission is being daily brought into public odium by ongoing
leakages of its
affairs to the media. In fact it is no longer possible for the
Commission to function on the basis
of confidentiality without attracting public
ridicule.
I seek your urgent intervention Mr. President so that the Commission can
be seen to act with Integrity.
Yours faithfully Kenneth Gordon Chairman
Integrity Commission
(b) The letter of complaint of member Neil Rollingson dated 22nd
January 2012:
Sir,
I am constrained to pen this personal letter to you in your capacity
as
President of the Republic of Trinidad and Tobago in order to place on
record my discomfort with the current state of affairs at the
Integrity
Commission of which I am honoured to be a member.
As you are aware, the business of the Commission is being continuously being compromised by the release of documentation, and Board meeting information to members of the Media.
Although there is no conclusive evidence as to the source of the
‘leaks’, it is indicative that their sudden appearance
in the
national media is tied to a breakdown in the relationship between our Deputy
Chairman, Mrs. Gladys Gafoor and our Chairman.
The nature of the leaks appear to be an attempt to bring into the public
domain a matter that in my view should be handled and settled
within the
confines of the Boardroom of the Commission.
When linked to the very boorish behavior of Mrs. Gafoor at meetings of the
Commission of late, I am of the personal view that the
required teamwork of
Members of the Commission required by the Integrity in Public Life Act 2000, no
longer exists.
My letter to you, therefore Mr. President, is to seek you direct intervention in a matter which if allowed to persist will certainly depreciate the good work and trust that the Commission has been able to garner since its inception.
I am available to discuss this matter with you, if you so require and at
your convenience.
Yours faithfully, Neil Rolingson
(c) The letter of complaint of member Professor Ann Marie Bissessar dated
20th
January 2012:
Dear Sir
Subject: Challenges Facing the Integrity
Commission
It is with much distress that after my University trip to Jamaica. I have
returned to find that the Deputy Chairperson of the Integrity
Commission has now
issued a pre-action protocol letter to the Commission. I, Sir, find this
disturbing in the least that a Member
of the Commission could file an action
against that very Commission on which they sit.
For some time, Sir, I have had a number of concerns with respect to the
management of the Commission and its affairs even during the
tenure of Professor
St. Cyr as the Chair of the Commission. For instance, immediately after we had
been sworn in the Commission,
as a Commissioner I found myself in a most
uncomfortable position with Mrs. Gaffoor constantly issuing insults to me as
Commissioner
and insinuating in a most vicious manner that I was in
some way connected to the People’s National Movement, at
that time the
ruling party. I was, however, not the only person singled out for these
insulting remarks. Mrs. Gaffoor, at all times,
also dominated the discussions,
even engaging in disruptions of the remarks of the chair. She also constantly
over-rode members of
the Commission and indeed dominated many of the matters of
the Commission. In many instances, when decisions were taken by the Commission
she later changed many of the Commission’s decisions by redrafting the
letters, suggesting the the letters were not clear enough.
This I understand
this was the case with the Tesheria matter. She constantly alluded to the fact
that you had appointed her as a
member of the Commission because she was a
luminary in law matters and we were described to as
‘non-lawyers.’
There were also incidents in which Mrs. Gaffoor literally accused the former director of investigations of being unable to do his work and her lack of confidence in him. Mr. Virgil retired from this position, because he
too seemed to be very uncomfortable with the direction in which the
Commission was heading. (It should be noted that he was involved
in
investigations involving Mrs. Gaffoor). In another case in interviewing the
candidates of the position of Director of Investigations,
when the positions
were prioritized, Mrs. Gaffoor came to us and insisted that the second candidate
should be given the position
since she ‘knew’ him to be very good. I
stoutly resisted this recommendation and then she asked the Commission to
re-interview
candidates which again I stoutly resisted since to me this amounted
to a contamination of the process. In another case, with respect
to the Jack
Warner matter, Mrs. Gaffoor told the chairman to go the newspaper to air our
position. Again, I was appalled and resisted
this recommendation. I however had
to go out of the country and upon my return found that the matter had been
aired.
When the new party assumed power, Mrs. Gaffoor commenced by making unkind
remarks relating to the Attorney General and Devant Maharaj.
She made comments
that she could not talk openly since I was related to Mrs. Persad Bissessar and
these innuendoes have continued
to this day.
In the matter involving John Jeremy, I stated at the Commission meeting that we had to understand the position of the Commission as a whole. Even if the perception of bias is not warranted on the part of Mr. Jeremy the mere fact that he has expressed a lack of faith in these two members of the Commission making a judgement without having a bias, this perception will in fact taint the future decisions made by the Commission in this matter. It would also have served to erode public confidence in the Commission. The current Chairman of the Commission, Mr. Ken Gordon, has at all times involved all members in consultation and has at all times conducted himself with integrity in observing protocols. In this meeting he asked Mrs. Gaffoor and Mr. Jokhoo to recuse themselves given the perception of bias on the part of the person being investigated. Mr. Jokoo acceded and Justice Gafoor suggested that ‘no one could ask her to
recuse herself.’ The Chair then asked that we hold a special meeting
to consider the merits of Mr .Jeremy’s request. Mrs.
Gaffoor insisted that
she be given this in writing and my expectation was that upon given such a
letter she would recuse herself
from that meeting.
On the day the ‘special meeting’ was convened to discuss Mr.
Jeremy’s matter, Mrs. Gaffoor showed up, Mr. Jokoor
did not. She had a
conversation with the Chairman in his office and then came to the conference
room and insisted that she sit in
on the meeting although she would not comment.
At that point the quorum consisting of myself, Mr. Rolingston and Mr. Gordon and
took
the decision that there was some merit in Mr. Jeremy’s request and
that a meeting should be held in which a resolution would
be taken by the
Commission as to whether the members should be asked to recuse
themselves.
This meeting was held and a resolution to that effect was subsequently
taken. Matters have continued to deteriorate so badly that
in our last meeting
Mrs. Gaffoor refused to return confidential letters to the Registrar and asked
the Chair “if he wanted
it to come for and if he wanted to engage in
violence.” Added to this have been the current attacks and commentaries by
the
Media about the Commission on meetings held by the Commission which was only
known to members of the Commission. In one case confidential
information which
was known to only the Chair, The Deputy Chair and the Registrar was leaked ad
verbatim to the media. The very confidentiality
of the Commission has thus been
severely eroded.
Sir, in my opinion, there is no way in which the Commission can proceed with the business of the Commission if Mrs. Gaffoor continues to serve as a sitting member of the Commission. The Commission has now been reduced to a body which has been ridiculed throughout the country and the region and indeed this has severely impacted on my professional as well as my personal life. In the circumstances, unless some action is taken
to address the problems I have outlined I have no choice but to resign
from the Commission in the near future since it cannot function
effectively as
it should.
Respectfully, Sir,
Ann Marie Bissessar (Professor, Public Management
Head, Department of Behavioural Sciences
UWI, St. Augustine Campus.
President orally communicated to the Claimant
specific concerns brought to his attention by other members of the Commission
over the
operation and management of the work of the Commission. The
Claimant did not request copies of the letters but took notes of
His
Excellency’s concerns with a promise to respond to same in
writing.
comprehensive response providing
her version of events and in some cases asking to be provided additional support
for the allegations.
The Claimant’s response also makes it clear what was
communicated to her by His Excellency and I have highlighted those
portions.
Her response is set out verbatim as follows:
30th January 2012
Your Excellency,
I refer to our meeting of 26th January 2012 at which you
kindly brought to my attention some concerns expressed by my fellow
Commissioners at the Integrity Commission. You also kindly
agreed to allow me a
brief opportunity for reflection. Having done so, I now have the following
comments to make:
Your Excellency drew to my attention your concern about the way in
which the business of the Commission is being conducted and I can
only share in those concerns. The last two months have left me both perplexed
and troubled about the apparent lack of transparency
and scrutiny being brought
before the Commission. As one might anticipate, it is expected that
Commissioners would be circumspect
in the way that they discharge their duties
give that oftentimes various distinguished senior counsel are involved in
making representations
to the commission on behalf of their respective clients.
It is questionable whether the events of the last few weeks as they have
unfolded in relation to my present concerns about the conduct of the
commission’s business have done much to inspire confidence
in this body as
I have been constrained after much soul searching and at no small cost to my
health, general well-being and pocket
to do what is necessary to preserve my
reputation which, I am given to understand, is what led Your Excellency to
appoint me to the
present and past Commissions.
I now deal with the various matters which were the subject of our
specific discussion:
Public perception
Your Excellency referred specifically to the “disquiet” and “ridicule” which have been generated in the media about the commission. It seems to me that much of what has been said has been the product of
previous commissions foundering due to various issues raised which have
not been due to any fault of mine in so far as I am in any
way associated as a
member of those previous commissions and which have been well documented in the
press. As far as the current
situation is concerned regarding the preservation
of my legal rights, I can assure Your Excellency that such steps where not taken
lightly and indeed were the subject of earlier formal notification by me to both
the Chairman and Your Excellency through separate
correspondence.
Impasse
I acknowledge that there is an “impasse” between the Chairman and myself which the Chairman has publicly conceded is the case. However the instant matter of my recusal from deliberating upon an investigation into former Attorney General Jeremie, is a legal issue and, given that the Chairman and others members of the commission are not legally trained nor qualified, so far as I am aware, I am not sure that this is a matter upon which the Chair and other commissioners can legitimately form a view unless appropriately guided by proper legal advice. Indeed, I would go so far as to suggest that it would be unwise of them to so do. This is perhaps best demonstrated by the fact that, even up to the present time, no or no proper discussions have taken place upon the mere request and purported reasons so advanced from the former Attorney General that I should not deliberate on his matter nor whether it was appropriate for the Commission to vote on the issue. My contention that proper procedures are not being followed by the Chairman and the other two commissioners rests on the legal proposition of the fair minded and informed observer which is the standard established in law and which I have previously brought to the attention of the Chairman by way of private correspondence which he saw fit, against my express wishes, and which correspondence was also marked “private and confidential” to lay before the commission as a whole. Having done so, it can neither be said that the other
commissioners are unaware of the legal test nor have they been denied an
opportunity to solicit and obtain independent legal advice
on this
issue.
Letters from the Chairman and the other two
commissioners
I cannot legitimately comment on allegations against me which I have not
seen. However, as far as leakage to the media is concerned, this is a
matter which is being separately pursued through my attorneys but I wish to
reiterate that I am not responsible for any
alleged leakage despite being
hounded relentlessly on this issue by the Chairman in the absence of any proof
to this effect as well
as the absence of the results of any police investigation
being laid before the commission. As an attorney of some 50 years standing
with
an impeccable reputation, as I am sanguine that Your Excellency will appreciate,
this has had a deleterious effect on my health
and general well-being as someone
who has guarded her professional reputation jealously.
Pre-action protocol letter
It is a matter of record that valiant and persistent efforts were made by me to settle and discuss the subject matter of this letter with the other commissioners and your good self prior to such action but to no avail and thus little or no other option was open to me in this regard. May I respectfully remind Your Excellency that other commissions have had to resign for breaching the law and failing to observe the fundamental tenets of natural justice and, as the legal member of the team duly appointed under the provisions of the Integrity in Public Life Act, I have a duty to point out where the commission appears to be yet again lapsing into error in treating with the former Attorney General as this is a case of the utmost sensitivity and therefore it was incumbent upon the present commission to ensure that any correspondence dispatched to the former Attorney General should be carefully worded as well as enjoying the full approval of the commission as a whole. Unfortunately this was not done as the
Chairman apparently took it upon himself to cause the registrar to write to the former Attorney General not only assuring him that my fellow Commissioner Jokhoo and myself will not be deliberating upon his matter but also that his matter will be resolved by 17th February 2012, even in the absence of an ongoing investigation being completed. Concerns expressed by me both privately and at the meetings that this was not a
prudent course of action were merely swept aside by the Chairman that the
letter had already been despatched.
Regarding the alleged complaints by the other two commissioners, which
as indicated above I have not seen but which
were summarized
by Your Excellency at our meeting on 26th January, I
comment briefly as follows:
(i) That my behaviour has caused the Commission to fall below a
certain standard
I would have thought that for my behaviour to fall below a
certain standard, that standard ought clearly to be identified
and this has not
been done. Moreover, I do not know how I can stand accused of this when my
entire career has been dedicated towards
the pursuit of excellence.
(ii) Breakdown of relationships with the other
Commissioners
I pose the question rhetorically, how has my behaviour contributed to this? The Chairman and the other two Commissioners have withheld their speech from me and refuse to talk to me at meetings since the matter involving the former Attorney General was raised in November 2011 and I expressed the view that recusal is a matter for my consideration and the Chairman has been extremely aggressive towards me by shouting at me during meetings in the presence of the other commissioners although I am the Deputy Chairman which is unbecoming of his position as well as being
demeaning to me especially as a lady. Moreover, at the meeting in mid-
December, after the meeting of the commission, the Chairman
formally announced
that he wished to see all the other commissioners in his office except me. This
was not only, it seems to me calculated
to embarrass and humiliate me but also
was designed to cause disunity and division within the
commission.
(iii) Work of commission cannot be
accomplished
If this is true then it is because the Chairman has suspended meetings
pending a police report. Commissioner Jokhoo specifically questioned
the basis
for this decision and advised the Chairman against this course of action but he
nevertheless has proceeded to so do. I
have no difficulty working with the other
commissioners and indeed chaired some four meetings myself during the
interregnum between
the resignation of Dr. St. Cyr and the appointment of Mr.
Kenneth Gordon as the new Chairman.
(iv) Action by Your Excellency
I am myself in the dark as to what action the Chairman and other two
commissioners are calling upon Your Excellency to take urgently.
Your
Excellency has previously advised that this is not a matter in which you can
intervene and therefore the suggestion that you
are now called upon to so do
would appear to be misconceived.
Further, Your Excellency drew to my attention various examples cited by
the Chairman and other two commissioners and I now comment on these
examples as follows:
(a) Refusing to return confidential documents and being confrontational
What are these documents? I have no documents and any such documents lent
to me were returned to the registrar. I am unaware of any
confidential documents
in my possession which I have refused to return.
(b) Refusing to abide by majority decision/participation in
decision
What are these matters? I am within my rights to object to any vote on my
recusal. I have not participated in any decision of the
commission and refused
to abide by it.
(c) Intimidating attitude
I am the only lawyer on the commission but have never adopted such an
attitude. Rather, I have tried to assist my fellow commissioners
by seeking to
explain legal matters to them.
(d) Being insulting to commissioners and
staff
This is not correct. The person who has continuously done so is the
Chairman. I have insulted no-one and indeed I remain mystified
by this complaint
as well.
(e) Public domain
I am not aware that these matters as alluded to above are in the public
domain via the printed media.
(f) Restoration of public confidence in the
Commission
The issue of restoring public confidence transcends the current commission given that the past three commissions have not fared well with various commissioners resigning for different reasons but any allegation that I am responsible for undermining public confidence surely cannot be laid at
my door, bearing in mind that this allegation would appear to be based on
the subjective views of three members referred to above.
Remedy
If the Chairman and two of the other three members wish to voluntarily
resign as so indicated, that is their personal decision and if this
will assist in the work of the commission, then so be it.
In closing, it is passing strange that the complaints which have
regrettably taken up Your Excellency’s valuable time have nothing
to do
with the issue of my recusal but rather dwell on personal issues which have
little or nothing to do with the work of the commission
as a whole and which
amount to petty allegations which are patently untrue, lack merit or substance
and perhaps are clearly designed
to further embarrass me as well as revealing
more about the authors than anything else.
Notwithstanding this, I remain firmly committed to upholding the high
standards of integrity by which I have lived my personal and
professional life
and conducted my affairs and moreover to justifying the confidence which Your
Excellency has reposed in me as the
Deputy Chairman of the commission as well as
a member of previous commissions.
Yours most respectfully, Gladys Gafoor
the impasse in the dealing with the
Jeremie investigation, the inability of members of the Commission to work
with the
Claimant and the virtual shutting down of the work of the Commission as
a result of the impasse. These were all matters squarely
raised in the three
letters of complaint and which were all responded to in the letter of the
Claimant under the distinct
headings. Furthermore they are matters which
were placed within the terms of reference of the Tribunal’s enquiry. A
comparison
of the letters themselves, her response and the terms of reference of
the Tribunal is set out as appendix A for convenience.
whether the conduct constitutes misconduct and whether the
Claimant should be removed from office as member and Deputy Chairman.
The Gazetted notice establishing the Tribunal is set out
verbatim:
APPOINTMENT OF A TRIBUNAL
BY THE POWERS VESTED in His Excellency Professor George Maxwell Richards,
President of the Republic of Trinidad and Tobago, under
and by virtue of the
Constitution and in particular, section 136 there is constituted and appointed a
Tribunal comprising The Right
Honourable Mr. Justice Michael de la Bastide,
T.C., Chairman and Members, The Honourable Mr. Justice Humphrey Stollmeyer, J.A.
and
The Honourable Mme. Justice Maureen Rajnauth Lee for the following
purposes:
1. To inquire into complaints made by Members of the Integrity Commission that Mrs. Gladys Gafoor, appointed Member and Deputy Chairman of the integrity Commission on the 15th March
2010 has, from or after that date through January, 2012 and
continuing, engaged in conduct, that is to say –
a) having participated in the decision making processes of the
Commission, thereafter, unreasonably resiling from and/or refusing
to abide by
the decisions of the Commission;
b) retaining confidential documents of the Commission provided to her in the course of the Commission’s business and, unreasonably refusing to return same when required to do so;
c) conducting herself in her relations with her fellow Members and with
staff of the Commission in an intimidatory manner not conducive
to accomplishing
the work of the Commission;
d) in relation to matters coming before the Commission, preferring her
personal status and perceived reputation and standing as an
Attorney over the
work and reputation of the Commission and without any or any sufficient regard
for the fact that her appointment
as a member and Deputy Chairman is
for the benefit of the Commission;
e) in relation to the work of the Commission, preferring her personal
status and perceived reputation and standing as an Attorney
over the work and
reputation of the Commission and without any or any sufficient regard for the
fact that her appointment as a member
and Deputy Chairman is for the benefit of
the Commission;
g) conducting herself in relation to the business of the Commission including its confidential processes and documentation in a manner which is likely to bring the Commission into disrepute;
h) conducting herself in relation to the business of the Commission and in
her relations with her fellow Members and staff of the
commission in such a
manner as to have undermined the authority of the Commission;
and that by her manner, conduct and behavior in relation to her duties
and/or her office as Member and/or Deputy Chairman of the Integrity
Commission,
such conduct and behaviour when taken together, amount to misconduct in relation
to her duties and/or misbehaviour in
office.
2. To report to and to advise His Excellency on such facts found by the
Tribunal, whether such conduct and/or behaviour by
Mrs. Gladys Gafoor as
Member and Deputy Chairman, constitutes conduct and/or misbehaviour within the
meaning of the Integrity in
Public Life Act, Chap. 22:01, as amended
(hereinafter ‘the Act’) and in particular section 8(2)(d) and (e)
thereof and
of section 136(7) of the Constitution, with particular reference to
whether such conduct-
a) affects her ability to perform her duties and to discharge the
functions of her office as Member and Deputy Chairman of the Integrity
Commission;
b) affects the perception of others, including members of the public and other Members of the Integrity Commission, of her ability to perform her duties and to discharge the
functions of her office as Member and Deputy Chairman of the Integrity
Commission;
c) if Mrs. Gladys Gafoor was allowed to continue in the said office,
whether her continuation in office would be inimical to the good
governance by
the Integrity Commission in and about the discharge of its business and mandate
under the Constitution and the Act;
d) is such as to have brought or contributed to bringing the important
constitutional office of the Integrity Commission as established
under the
Constitution and the Act into disrepute.
3. By the said report, that the Tribunal do advise His
Excellency whether Mrs. Gladys Gafoor ought to be removed from the
Office of
Member and Deputy Chairman of the Integrity Commission, pursuant to the
provisions of section 136(10) of the Constitution
and section 8(2) of the Act
and that, the Tribunal do undertake this commission as a matter of utmost
urgency and with all appropriate
despatch.
4. Counsel appointed by His Excellency to the Tribunal is Mr.
Reginal
Armour, S.C.
Dated the 6th day of February, 2012
45. Subsequently the President issued his letter of suspension to the
Claimant dated
9th February 2012:
In re: The Integrity Commission and section 136 of the Constitution
By the powers vested in me by the Constitution and in particular
section
136 (9) thereof, I have appointed a Tribunal to inquire into complaints
made by Members of the Integrity Commission that you, Mrs.
Gladys Gafoor,
appointed Member and Deputy Chairman of the Integrity Commission on the
15th March 2010 have, from or after that date and through January
2012 and continuing, engaged in conduct, that is to say:
a) Having participated in the decision making processes of the
Commission, thereafter, unreasonably resiling from and/or refusing
to abide by
the decisions of the Commission;
b) Retaining confidential documents of the Commission provided to you
in the course of the Commission’s business and, unreasonably
refusing to
return same when required to do so;
d) In relation to matters coming before the Commission, preferring your
personal status and perceived reputation and standing as an
Attorney over the
work and reputation of the Commission and without any or any sufficient regard
for the fact that your appointment
as a member and Deputy Chairman is for the
benefit of the Commission;
e) In relation to the work of the Commission, preferring your personal status and perceived reputation and standing as an Attorney over the work and reputation of the Commission and without any or any sufficient regard for the fact that your
appointment as a member and Deputy Chairman is for the benefit of the
Commission;
g) Conducting yourself in relation to the business of the Commission
including its confidential processes and documentation in a manner
which is
likely to bring the Commission into disrepute;
h) Conducting yourself in relation to the business of the Commission and
in your relations with your fellow Members and staff of the
Commission in such a
manner as to have undermined the authority of the Commission;
and that by your manner, conduct and behavior in relation to your duties
and/or your office as Member and/or Deputy Chairman of the
Integrity Commission,
when taken together, amount to misconduct in relation to your duties and/or
misbehaviour in office.
The Tribunal is mandated to report to and to advise me, as President, on the facts found after due inquiry into the matter, accordance with
provisions of section 136 (9) and (10) of the Constitution and, having regard to the Integrity in Public Life Act, Ch.22:01, section 8 (2) (d) and (e).
By the powers vested in me under section 136 (11) and, after consultation,
I hereby suspend you forthwith, until further notice, from
performing the
functions of your office as Member and Deputy Chairman of the Integrity
Commission, without prejudice to your entitlement
to salary and emoluments of
office.
Yours sincerely
George Maxwell Richards
to His Excellency. In her final
salvo before the commencement of these proceedings, by letter dated 2nd
March 2012 she stated “I am unable to fathom how the reference to
the Tribunal exercising its powers can have any or any real
bearing on the
simple yet specific request for the letters of complaint against me.” She
complained that the denial of the
request amounted to a breach of natural
justice. Presumably the breach to which she refers is her hearing before the
Tribunal and
not at the preliminary stage when the President met with the
Claimant.
The issues
She contends that the President breached her constitutional right to the protection of the law and to her right to natural justice by the appointment of the Tribunal. In its written submissions in reply the Claimant has abandoned the failure to take legal advice as a ground for constitutional relief. Also at paragraph
36 she suggests that the issue of the suspension does not form the basis for
a separate claim but is simply part of the appointment
of the Tribunal and
relevant to the fact that the Claimant was not informed of any course which the
President was proposing to take.
48. The following issues therefore arise for determination:
iv. Whether the motion constitutes an abuse of process
as (a) the court’s
jurisdiction to enquire in the acts of the President is ousted by
section
38 of the Constitution and (b) the Claimant’s right to the protection
of the law is unarguable as her access to the Courts have
not been denied to
her.
The investigative role of the Tribunal
The string of authorities of Rees v Crane18, Charles19, Mc Nicholls20 dealt with a different enquiry. Under section 136 the removal of an officer holding the office of member and Deputy Chairman of the Commission involves a two staged approach. First a decision is made by the President that the question of removing the officer ought to be investigated (Section 136(8)). Once making that decision the President then appoints a Tribunal to conduct an investigation and compile a report for the President (Section 136(9)). That report will provide the facts as found and advise the President whether the officer ought to be removed (Section
136(10)). The President then acts on this advice of the Tribunal by removing
the officer if the Tribunal so advises (Section 136(11)).
“Those
responsible for the conduct of any Inquiry must, at an early stage, take
decisions as to the procedure to be
adopted for the taking of
evidence. The objects to be served by the procedures will be threefold: first,
the need to be fair
and to be seen to be fair to witnesses and others whose
interests may be affected by the work of the Inquiry: second, the need for
the
Inquiry’s work to be conducted with efficiency and as much expedition as
is practicable; third, the need for the cost of
the proceedings to be kept
within reasonable bounds.”
The Tribunal will control its own procedure but that procedure adopted will comply with the principles of natural justice. One must note that if the President acts pursuant to the advice of the Tribunal there is no remedy for the individual as against the President it would be unpalatable to scrutinize the decision of the
President to act on the advice of the Tribunal. If indeed however he
refuses to act
18 Rees v Crane [1994] 2 AC 173, PC
19 Herbert Charles v AG CA76/99; PC26/2001
20 Sherman Mc Nicholls v Judicial and Legal Service Commission [2010] UKPC6
on the advice or does comply with the advice that is reviewable as a clear
breach of the Constitution. See section 136 (10). This
is discussed later in
this judgment. In my opinion the right to natural justice underlies the exercise
of the powers of the President
under section 136 (8) of the
Constitution.
The duty to act fairly
result.”21
case.
21 “Natural Justice and Independent Tribunal Services Tribunals” JSSL 1998 S92) 62-71
53. At common law the principles of natural justice has been described
contextually.
The seminal and elementary judgment of Tucker LJ in Russell v
Duke of
Norfolk22 described it as follows:
“There are...no words which are of universal application to every kind
of inquiry and every kind of domestic tribunal. The requirements
of natural
justice must depend on the circumstances of the case, the nature of the inquiry,
the rules under which the tribunal is
acting the subject which is being dealt
with and so forth”.
55. Lord Bridge in Lloyd v Mc Mahon24 usefully
opined:
“The so called rules of natural justice are not engraved in tablets of stone. To use the phrase which better expressed the underlying concept, what the requirement of fairness demand when anybody, domestic, administrative or judicial has to make a decision which will affect the rights of individuals depends on the character of the decision making body the kind of decision it has to make and the stature or other framework in which it operates. In particular it is well established that where a statute has conferred on anybody the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of
fairness.”
23 [1963] UKHL 2; [1964] AC 40
24 [1987] UKHL 5; [1987] 1 AER 1118
“The rules of natural justice are minimum standards of fair decision
making de Smith and Brazier in Constitutional and Administrative Law (6
End) (1989) say (at pages 557, 558):
'The rules of natural justice are minimum standards of fair decision-making, imposed by the common law on persons or bodies who are under a duty to "act judicially". They were applied originally to courts of justice and now extend to any person or body deciding issues affecting the right or interests of individuals where a reasonable citizen would have a legitimate
expectation that the decision-making process would be
subject
to some rules of fair procedure. The content of natural justice is therefore
flexible and variable. All that is fundamentally demanded
of the decision-maker
is that his decision in its own context be made with due regard for the affected
parties' interests and accordingly
be reached without bias and after giving the
party or parties a chance to put his or their case. Nevertheless some judges
prefer
to speak of a duty to act fairly rather than a duty to observe the rules
of natural justice. Often the terms are interchangeable.
But it is perhaps now
the case that while a duty to act fairly is incumbent on every decision- maker
within the administrative process
whose decision will affect individual
interests, the rules of natural justice apply only when some sort of definite
code of procedure
must be adopted, however flexible that code may be and however
much the decision-maker is said to be master of his own procedure.
The rules of
natural justice are generally formulated as the rule against bias (nemo judex
in sua causa) and [in respect of] the right to a fair hearing (audi
alteram partem).”
58. In Spackman v Plumstead Board of Works31 at page 240
the Earl of Selborne
LC stated:
'No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter, and he must act honestly and impartially and not under the dictation
of some other person or persons to whom the authority is not
given
by law. There must be no malversation of any kind. There would be no decision
within the meaning of the statute if there were anything
of that sort done
contrary to the essence of justice.'
“A related difficulty is whether there is any difference between the content of natural justice and the content of the duty to be fair. One view which happens to be that of both Lord Roskill and Megarry VC is that there is no difference the content of natural justice and the content of the duty to be fair are both flexible and depend on the circumstances of the case. Another view is that the duty to be fair might include requirements which were not part of the traditional concept of natural justice for example the duty to act on evidence” See R v Deputy Industrial Injuries
Commissioner ex parte
Moore32.”
60. Kavanagh in Guide to Judicial Review (2 Edn) (1984) at page 17
discusses the
‘Meaning of Fairness':
“Fairness as related to the discharge of administrative functions means something less than a full-type hearing. The procedures will vary from case to case. Of course, they ought not to impede the legislative scheme
... Fairness does not require that the party affected be informed of every detail. The leading case here is R v Race Relations Board, ex parte Selvarajan33. Speaking of an investigation, Lord Denning said: "What
fairness requires depends on the nature of the investigation
and the
33 [1976] 1 All ER 12, CA
consequences which it may have on persons affected by it". The person
affected by the investigation "should be told the case against
him and be
afforded a fair opportunity of answering it. The investigative body is, however,
master of its own procedure. It need
not hold a hearing. It can do everything in
writing. It need not allow lawyers. It need not put every detail of the case
against
a man. Suffice it if the broad grounds are given. It need not name
informants. It can give the substance only ..."
“The subject is removal of a judge. The circumstances arose from a complaint of alleged misbehavior represented by the chief magistrate, who must be taken as knowing that the making of her accusation carried the consequences of dandifying the judge in social, psychological and material respects. In terms of natural justice, the JSC, too, ought to have realized that the appellant, from the inception, was put in jeopardy and that the procedure it should have employed was required to evince the JSC's regard for the office held by the appellant and his status as a protected person by virtue of the Constitution: i.e. that he was entitled to
procedural safeguards that recognized the several risks he faced. That
procedure, although unwritten, should have been intimated to
him beforehand, and
possessed of sufficient flexibility to allow his further participation, in the
event of developments which neither
the JSC nor he could, with reasonable
prudence or foresight, have anticipated”.
'The proposition that notice need not be given of a proposed action because there can possibly be no answer to it is contrary to the well- recognized understanding of the real import of the rule of hearing. That proposition overlooks that justice must not only be done but must manifestly be seen to be done and confuses one for the other. The appearance of injustice is the denial of justice. It is the dialogue with the person likely to be affected by the proposed action which meets the requirement that justice must also be seen to be done. Procedural safeguards have their historical origins in the notion that conditions of personal freedom can be preserved only when there is some institutional check on arbitrary action on the part of public authorities (see Kadish, "Methodology and Criteria In Due Process Adjudication - A Survey and Criticism" (1957) 66 Yale LJ 319 at page 340). The right to be heard has two facets, intrinsic and instrumental. The intrinsic value of that right consists in the opportunity which it gives to individuals or groups, against whom decisions taken by public authorities operate, to participate in the proceedings by which those decisions are made, an opportunity that
expresses their dignity as persons. [Goldberg v Kelly, [1970] USSC 68; 397
US 254, at
pages 264, 265 (1970) (right of the poor to participate in public
processes).] "Whatever its outcome, such a hearing represents
a valued human
interaction in which the affected person experiences at least the satisfaction
of participating in the decision that
vitally concerns her, and perhaps the
separate satisfaction of receiving an explanation of why the decision is being
made in a certain
way. Both the right to be heard from, and the right to be told
why, are analytically distinct from the right to secure a different
outcome;
these rights to interchange express the elementary idea that to be a
person, rather than a thing is at least to be consulted about what
is done with one".'
“Two different aspects can be extrapolated from the natural justice principle. Firstly, it represents an ideal of justice (I call this ‘the justice value’), described as a common law principle by reason of its unquestionable antiquity. In this sense it clearly embodies a universal substantive standard. ...., it also contains procedural standards. Secondly, it is a principle of practical application available to those to whom the threshold right to be heard is extended. This can be referred to as ‘the participation principle’. The important point about extending natural justice to an individual is that it enables the person to participate meaningfully in the process of decision-making.” — the fact that the rules of natural justice incorporate fundamental ideas or values, including equality, non- discrimination, impartiality and basic fairness. The natural justice principle also has an inherent instrumental value which highlights the importance of fair procedures for securing accurate outcomes. In this sense, the justice value incorporates both substantive and procedural standards, which are interconnected. The fact that the courts, when conducting judicial review, explain their role as being to determine whether procedural rather than
substantive fairness was accorded does not detract from that proposition. That is, the courts emphasize the limits of the process of judicial review, and eschew interference with substantive outcomes. To emphasize that constitutional role, the Australian courts in recent years have preferred the term ‘procedural fairness' to natural justice. Natural justice thus incorporates a theory of substantive procedural justice, rather than being a mere procedural rule about the distribution of benefits, or of distributive justice as, for example, Rawls' views might suggest the participation principle limits the right to participate in a hearing by reference to
distributive principles.”37
66. In Kioa v West, supra, in the High Court of Australia Mason, J.
Explained that in
“procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interest of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into
account as legitimate
considerations....”
37 [2002] MelbULawRw 19; 26 Melb U.L Rev 355, “Natural Justice and Non Citizens: A matter of Integrity?”
38 [1998] 1WLR 763
“Surely the time has come to recognise that the duty of fairness cannot and should not be restricted by artificial barriers or confined by inflexible categories. The duty is a general one, governed by the following propositions?
1. Whenever a public function is being performed there is an inference, in the absence of an express requirement to the contrary, that the function is required to be performed fairly;
2. The inference will be more compelling in the case of any decision which may adversely affect a person’s rights or interests or when a person has a legitimate expectation of being fairly treated;
3. The requirement of a fair hearing will not apply to all situations of perceived or actual detriment. There are clearly some situations where the interest affected will be too insignificant, or too speculative, or too remote to qualify for a fair hearing.....;
4. Special circumstances may create an exception which negatives the inference of a duty to act fairly....;
5. What fairness requires will vary according to the
circumstances....;
6. Whether fairness is required and what is involved in order to achieve
fairness is for the decision of the courts as a matter
of law. The issue is not
one for the discretion of the decision- maker. The test is not whether no
reasonable body would have thought
it proper to dispense with a fair hearing.
The Wednesday reserve has no place in relation to procedural
propriety.”
68. Warner JA further commented:
“What is essential is substantial fairness - this may sometimes be
adequately achieved by telling the officer the substance
of the case he has to
meet, without disclosing the precise evidence or the sources of the
information... It cannot be over emphasized
that what is fair in a particular
case must be determined against the whole background of the case. What is
essential is substantial
fairness - this may sometimes be adequately achieved by
telling the officer the substance of the case he has to meet, without disclosing
the precise evidence or the sources of the information”.
“(3 )The principles of fairness are not to be applied by rote
identically in every situation. What fairness demands is dependent
on the
context of the decision, and this is to be taken into account in all its
aspects. (4) An essential factor of the context is
the statute which creates the
discretion, as regards both its language and the shape of the legal and
administrative system within
which the decision is taken.”
70. In Feroza Ramjohn per Warner JA opined:
“The terms natural justice and procedural fairness have been used
interchangeably, however in administrative law, the concept
comprises
39 CA 139 of 05
40 [1994] 1AC 531, 560
two well-known and fundamental rules of fair procedure – a man may not
be a judge in his own course and his defence must be
heard. 9. The principles of
natural justice have evolved under the common law, as a means of restraining the
arbitrary exercise of
state power.10. Administrative decisions cannot be made
capriciously. That does not however mean that every decision is subject to
the
rules of natural justice. The exercise of powers of discipline, or where a
penalty is to be imposed are clearly subject to the
rules.”
“To the extent therefore that transfers and recalls under section
121(6) (b) are run of the mill operational or managerial decisions
of the Prime
Minister, it is in my view, quite inappropriate for a supervisory court in
exercising its jurisdiction to imply the
rules of natural justice. If there were
some element of disciplinary proceedings as a result of the recall, the position
would in
all probability be different as in those kinds of situations, the rules
of fairness come into play”
This is the strong current of the common law in the Commonwealth in developing the concept of fairness in administrative decision making and making its waves in our jurisdiction. Equally therefore with respect to the Constitution there is a presumption that the principles of fairness apply unless there is a strong manifestation of contrary intention.
The duty to act fairly and the Protection of the
law
73. In Commonwealth Caribbean Constitutions (1992), commenting on
Thomas v
Attorney-General42 says (at page 35):
'... no provision of the Bill of Rights was expressly invoked but questions
of a fair hearing and of natural justice were implicated
and the case can well
be comprehended as treating in part at least of the right to a fair hearing in
the determination of the individual's
rights and obligations.'
74. Justice Rajnauth-Lee in Rowley v Integrity Commission
opined
“We do not have such a challenge in Trinidad and Tobago where the Written Constitution of Trinidad and Tobago protects and guarantees fundamental human rights and freedoms including the right of the individual to the protection of the law and to the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations [sections 4 (b) and 5 (2) (e)]. These rights have been interpreted to include the right of the individual to be informed
of the specific allegations made against him and the right to be given
an
opportunity to deal with them in the circumstances set out in the case of Rees and Others v. Crane43. According to Lord Slynn who delivered the judgment of the Judicial Committee of the Privy Council, the protection of the law referred to in section 4 (b) upon which the respondent also relies would include the right to natural justice (page 453). The right to be informed of the specific allegations made against an individual and the right to be heard on those allegations have been codified in several
enactments in Trinidad and Tobago, including section 38 of the Act.
54. In the judgment of the Court, where there is a breach of an
individual’s fundamental right to be informed of the specific
allegations
made against him and a breach of the right to be afforded an opportunity to be
heard on those allegations, and where
the Constitution of Trinidad and Tobago
guarantees those rights.”
“Neither can I accept Mr Sinnamon’s main submission that the respondents’ access to the High Court is a sufficient remedy. That is far too limited a construction of section 4(b). The decision in Mc Cleod is an example of one of the many facets of the terms “protection of the law”,
which is a wide and varied concept. See the decision of the
Caribbean
44 [1994] 2 AC 173, PC
Court of Justice in Attorney General and others v Joseph & Boyce46 in which the breadth of the term “protection of the law” was considered. There the court had to consider its power under the Barbados Constitution to enforce the right to protection of the law, and to grant a remedy for its breach. In a joint judgment on behalf of the majority de la Bastide P and Saunders J stated (at paragraph 60) that:
“...the right to the protection of the law is so broad and
pervasive that it would be well nigh impossible to encapsulate in
a section of a
Constitution all the ways in which it may be invoked or can be
infringed.”
At paragraph 62 of their judgment they quoted Lord Diplock’s dictum
in
Ong Ah Chuan v Public Prosecutor47 as
follows:
“... a Constitution founded on the Westminster model and
particularly in that part of it that purports to assure to all individual
citizens the continued enjoyment of fundamental liberties or rights, references
to “law” in such contexts as “in
accordance with law”,
“equality before the law”, “protection of the law” and
the like, in their lordships'
view, refer to a system of law which incorporates
those fundamental rules of natural justice that had formed part and parcel of
the
common law of England that was in operation in Singapore at the commencement
of the Constitution.”
At paragraph 63 they also referred to Lord Millett’s dictum in Thomas v
Baptiste48 at 421 in reference to the term 'due
process of law' set out in section 4(a) of the Trinidad and Tobago Constitution
as follows:
“In their lordships' view, “due process of law” is a
compendious expression in which the word “law”
does not refer to any
particular law and is not a synonym for common law or statute. Rather, it
invokes the concept of law itself
and the universally accepted standards of
justice observed by civilised nations which observe the rule of
law...'The clause thus gives constitutional protection to the concept of
procedural fairness ...”
They concluded at paragraph 64:
“We are of the view that Lord Millett's observations on the
meaning of the word 'law' in the context of the phrase 'due process of
law' are
equally applicable to the phrase 'protection of the law'. Procedural fairness is
an elementary principle permeating both
concepts and therefore, pursuant to s
11, a condemned man has a constitutional right to procedural fairness as part of
his right
to protection of the law. Correspondingly, the courts have an inherent
jurisdiction, and a duty, to grant an appropriate remedy for
any breach of that
right.’
Wit J, at paragraph 20 in his dissenting judgment, spoke of the protection of the law thus:
“The multi-layered concept of the rule of law establishes,
first
and foremost, that no person, not even the Queen or her Governor-General, is above the law. It further imbues the Constitution with other fundamental requirements such as rationality, reasonableness, fundamental fairness and the duty and ability to refrain from and effectively protect against abuse and the arbitrary exercise of power. It is clear that this concept of the rule of law is closely linked to, and broadly embraces,
concepts like the principles of natural justice, procedural and
substantive 'due process of law' and its corollary, the protection
of the law.
It is obvious that the law cannot rule if it cannot protect. The right to
protection of the law requires therefore not
only law of sufficient quality,
affording adequate safeguards against irrationality, unreasonableness,
fundamental unfairness or
arbitrary exercise of power; but it also requires the
availability of effective remedies.”
The term “protection of the law” thus cannot be given the
construction given to it in Mc Cleod which turned on its own facts and
circumstances. In the present case, the respondents claim to have been deprived
of access to the
Industrial Court by the failure to make regulations setting out
the conditions to be satisfied and the procedure to be adopted for
the
recognition by a statutory authority of existing associations and associations
formed under section 25(2).”
Natural justice and preliminary hearings
make a decision as to
whether an adverse representation should be
made
49 PC [2001] 2 AC
against a high ranking public officer a holder of a constitutional office who
would be put in risk.
The gist of the gist
been given the letters themselves. On the other hand the
Claimant contended
50 Kanda v Government of the Federation of Malaya [1962] UKPC 2; [1962] AC 322; [1962] UKPC2
the letters themselves have no evidential basis to make an allegation of
misconduct against her. Certainly the latter is a matter
that quite properly
lies within the province of the Tribunal to determine. However her submission
morphed into a gist given to her
by His Excellency of a gist. It is in my view
merely semantics. What must be examined is the procedure made available to her
to participate
in the process before the President made his decision, bearing in
mind her further participation at the Tribunal stage in a more
involved
manner.
has raised concerns over her own conduct in the affairs
of Commission. If the
Claimant had difficulty in responding she certainly would in my view have
said so to the President or made specific requests for the
letters before
responding.
The sufficiency of evidence
“the requirement that a person exercising quasi judicial functions must
base his decision on evidence means no more than it
must be based on material
which tends logically to show the existence or non-existence of facts relevant
to the issue to be determined
or show the likelihood or unlikelihood of the
occurrence of some future event, the occurrence of which would be relevant. It
means
that he must not spin a coin or consult an astrologer; but he may take
into account any material which has, as a matter of reason,
some profit or value
in the sense mentioned above. If it is capable of having any profit or value the
way it could be attached to
it is a matter for the person to whom
Parliament has entrusted the responsibility of deciding the
issue.”
The Disclosure of the
letters:
'Where a fair hearing "would make no difference"' Wade,
Administrative Law (6
End), pages 533, 534 offer this comment:
'Procedural objections are often raised by unmeritorious parties. Judges may then be tempted to refuse relief on the ground that a fair hearing could have made no difference to the result. But in principle
it is vital that the procedure and the merits should be kept strictly apart,
since otherwise the merits may be pre-judged unfairly.'
90. Megarry J criticizing the contention that “the result is obvious
from the start” in
John v Rees52 at 402 stated:
'It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. "When something is obvious", they may say, "Why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start". Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity
to influence the course of events.'
Ab use of proc e s s (i) The P res ide nt’s immunit y a nd
the s e c tion 3 8 c ons titutiona l
ouster
See Sherman Mc Nicholls v
Judicial and Legal Service Commission54
per
Lord Clarke:
53 an [1996] 8 Admin LR 351
54 Sherman Mc Nicholls v Judicial and Legal Service Commission [2010] UKPC6
“Experience shows that applications of this kind themselves cause
substantial delay, especially when they lead to one or more
appeals. Save
perhaps in an exceptional case the officer against whom a charge is made should
not apply for judicial review but utilize
the procedure set out in regulation
98...Regulation 98 contains detailed provisions which ensure that an officer so
charged will
be afforded a fair hearing.”
account for his decision to invoke section 136 in relation to the Claimant. The evidence in relation to the exercise of Presidential powers ultimately was gleaned from the Claimant’s affidavits and that of the President’s legal adviser. It certainly will not be palatable or consistent with constitutional conventions if the minutiae of decision making by the President in his official capacity was open to review. The constitutional ouster highlights in my view the importance of the President as the Head of State. Of interest were the comments in the Report of the
Constitution Commission 22nd January 1974 which advocated
for a largely
ceremonial Head of State “who would have some powers in the area of
appointment to offices of a national character and be a
symbol of national
unity. The desire was to find a person above the clash of race and class and
ideology which makes up the politics.”
Having the President elected by
an electoral college places the office of Head of State above the cut and thrust
of political campaigns
where the character of the office holder is vulnerable to
the disaffection of bitter political contests.
38. The Claimant contends that section 38 merely deals with the President in his personal capacity and the protection afforded is a personal immunity. He relied
on the authorities of Andy Thomas v AG55, Karunathilaka v Commissioner of Elections56. So for example according to this logic the President cannot be made a party to an action although he can be held to account as an arm of the state by suit against the Attorney General. This was the approach taken by Justice Davis in Andy Thomas and Kirkland Paul57. Justice Davis circumvented the section 38 ouster by concluding that the applicants were not seeking to make
the President answerable because he was not a party to the proceedings. This was adopted by my sister Justice Dean Armorer in Lincoln Smith v AG58. In applying the authorities of Maharaj v AG59 (no 2) and Thomas v AG the learned judge concluded that a motion which alleges breaches of fundamental rights under section 14 of the Constitution by virtue of a presidential order, presents no attack on His Excellency, but is a claim against the State for what has been done
in the exercise of its executive power. A challenge therefore based on an
allegation of a breach of a fundamental right will even
in a perfectly clear
case prevail over the ouster clause and the jurisdiction conferred by section 14
will not be extinguished.
actions will
not be protected if they are unlawful.”
55
56 [1999] 4 LRC 380
57 HC 6347/85
58 HC 2475/2003
59 Devant Maharaj v AG HC 3591/2009
Council in Thomas v
AG. In Attorney-General v Whiteman60 at page
412, Lord
Keith of Kinkel said: 'The language of a Constitution falls to be construed,
not in a narrow and legalistic way, but broadly and purposively,
so as to give
effect to its spirit, and this is particularly true of those provisions which
are concerned with the protection of
human rights.'
misconduct and inviting her response. What the law requires is
“fair play in action”. A procedural activity that allows
for the
participation of the Claimant in the decision making process.
103. In Re Sarran's Application61 at page 371
Cummings JA said:
”Let me at the outset say that section 6 of article 119 [now
article
226(6)] does not, in my view, present any difficulty. It means no more than
that there can be no inquiry by a court into the validity
of an act that the
commission is legally authorized to do; this does not mean that if the
commission or person does something which
it has no jurisdiction to do, or which
is beyond its or his power, as defined in the Constitution, that act cannot be
inquired into
by the courts.”
104. In Re Langhorne's Application62 at page 356, Luckhoo C
stated: 'When article
96(1) [now article 201(1)] vested in the commission the power to remove and exercise disciplinary control over public officers, it gave to that body the legal authority to do so, but of necessity it is required to act within the area of a
jurisdiction subject to qualifications and conditions of exercise
specified under the
Constitution. If it does not act within the jurisdiction there delineated,
then the protection afforded by article 119(6) [now article
226(6)] to prevent
any inquiry into the validity of functions performed, would be unavailing, since
the functions will not have been
performed with due authority of law. The very
language of article 119(6) [now article 226(6)] emphasizes this when it bars an
inquiry
by the courts on those occasions when any "function" is "vested" in the
commission "by or under the Constitution". It is in the nature
of a condition
precedent that the function must so vest before the courts cease to have the
right to inquire under this article.
If, then, a question is raised as to
whether in a particular case a function is or is not vested, this goes to the
root of the commission's
jurisdiction and so is properly justiciable by the
courts without the aid of any other enabling provision.'
“In exercising such jurisdiction the commission is clearly performing a
function vested in it by the Constitution; and the question
whether it has
performed it validly by removing the plaintiff from the Police Service falls
fairly and squarely within the language
of section I02 (4)(a) as a question into
which by the Constitution itself the court is prohibited from
inquiring...
...However, their Lordships do not find it necessary in the instant case to analyze the speeches in Anisminic and later English cases that have followed it or to do more than say that it is plainly for the court and not for the commission to determine what, on the true construction of the Constitution, are the limits to the functions of the commission. This is the
task on which their Lordships have been engaged in answering
questions
63 (1970) 15 WIR 410
(I) and (3). If the Police Service Commission had done something that lay
outside its functions, such as making appointments
to the Teaching
Service or purporting to create a criminal offence, section I02(4) of the
Constitution would not oust the jurisdiction
of the High Court to declare that
what it had purported to do was null and void.
There is also, in their Lordships’ view, another limitation upon the
general ouster of the jurisdiction of the High Court by
section I02(4) of the
Constitution; and that is where the challenge to the validity of an order made
by the commission against the
individual officer is based upon a contravention
of “the right to a fair hearing in accordance with the
principles
of fundamental justice for the determination of his rights and
obligations” that is secured to him by section 2 (e) of the
constitution,
and for which a special right to apply to the High Court for redress is granted
to him by section 6 of the Constitution.
“Generalia specialibus non
derogant” is a maxim applicable to the interpretation of
constitutions. The general “no certiorari” clause in section
I02(4) does not, in their Lordships’ view, override the special right of
redress under section 6.
In the instant case, however, there is no suggestion that the plaintiff was
not given a fair hearing in accordance with section 2
(e). Nor can it be
plausibly argued that the commission acted outside its jurisdiction in removing
the plaintiff from the Police
Service in the exercise of disciplinary control
over him. What it did fell fairly and squarely within the functions and
jurisdiction
conferred upon it by section 99(I). The High Court had no
jurisdiction to inquire whether or not it was validly done.”
our
country.
Abuse of Process (ii) Availability of Judicial
Review
constitutional principle of fairness discussed
above enshrined in the fundamental
66 Kenneth Suratt v AG [2007] UKPC55
right to the protection of the law. I accept however that an appropriate
remedy would have been judicial review of the decision of
the Commission to make
the complaints to the President in the first place without having given her an
opportunity to be heard. The
difficulty with this approach however is that the
complaints were apparently made by individual members of the Commission and not
the Commission itself. In any event this does not negate her right to
constitutional relief if she was able to prove that any of
her constitutional
rights under the protection of the law was infringed. A task in which in my
opinion she has failed outright.
Conclusion
114. The claim is dismissed.
(a) The Claimant do pay to the Defendant half of its costs of the
Defendant’s procedural application to strike out
portions of evidence
filed on 18th May 2012 to be assessed by this Court in default of
agreement;
(b) The Defendant do pay to the Claimant half of its costs of the
Claimant’s procedural application to strike out
portions of evidence filed
on 18th May 2012 to be assessed by this Court in default of
agreement;
(c) There be no order as to costs on the Court’s discharge
of the prohibition of the publicity of these proceedings
as this was a matter
raised by the Court of its own motion at a pre trial review without any formal
application made by either party;
(d) There be no orders as to costs on the application to amend, it being made
in response to the late receipt of the letters;
(e) The Claimant do pay to the Defendant the costs of the claim to be
assessed by this Court in default of agreement;
(f) There be no order as to costs in relation to the Interested Party on this
claim Save as to its entitlement to costs upon the withdrawal
of the claim
pursuant to the Court’s order dated 24th May
2012.
Dated 12th July 2012
Vasheist Kokaram
Judge
APPENDIX A
|
INQUIRY INTO CONDUCT
|
ALLEGATION BY CHAIRMAN/
MEMBER
|
CLAIMANT’S RESPONSE
|
|
(a) having participated in the decision making
processes of the Commission, thereafter, unreasonably resiling from and/or
refusing to abide by the decisions of the Commission;
|
See letter from Chairman:-
 Refusal to abide by
decision(para. 3)
Recant on statements
toCommission (para. 5)
|
Page 4 (b) Page 4 (b) |
|
(b) retaining confidential documents of the
Commission provided to her in the course of the Commission’s business
and, unreasonably refusing to return same when required
to do so;
|
See letter from Chairman:-
Return of documents (para. 4)
|
Page 4 (a)
|
|
(c) conducting herself in her relations with her fellow
Members and with staff of the Commission in an intimidatory manner not
conducive to accomplishing the work of the Commission;
|
See letter from Member, Neil
Rolingson:- Behaviour (para. 5)
|
Page 3 (i), (ii), Page 4 (c), (d),
(f)
|
|
See letter from Member, Ann
Marie Bissessar:-
Behaviour (paras. 2, 3 and 4)
|
Page 3 (i), (ii), Page 4 (c), (d),
(f)
|
|
INQUIRY INTO CONDUCT
|
ALLEGATION BY CHAIRMAN/
MEMBER
|
CLAIMANT’S RESPONSE
|
|
(d) in relation to matters coming before the
Commission, preferring her personal status and perceived reputation and
standing as an Attorney over the work and reputation
of the Commission and
without any or any sufficient regard for the fact that her appointment as a
member and Deputy Chairman is for
the benefit of the Commission;
|
See letter from Chairman:-
Standards of behaviour and public confidence (para. 2)
|
Page 3 (i), Page 4 (c), (d), (f)
|
|
(e) in relation to the work of the Commission,
preferring her personal status and perceived reputation and standing as an
Attorney over the work and reputation of the Commission
and without any or any
sufficient regard for the fact that her appointment as a member and Deputy
Chairman is for the benefit of
the Commission;
|
See letter from Chairman:-
Standards of behaviour and public confidence (para. 2)
|
Page 3 (i), Page 4 (c), (d), (f)
|
|
See letter from Member, Ann
Marie Bissessar:-
Pre-action protocol letter (para. 1)
|
Page 2 under the heading
pre-action protocol letter
|
|
|
(f) conducting herself in relation to the business of the
Commission and in her relations with her fellow
Members and staff of the Commission in such a
|
See letter from Member, Ann
Marie Bissessar:-
Work of the
Commission |
Page 3 |
|
INQUIRY INTO CONDUCT
|
ALLEGATION BY CHAIRMAN/
MEMBER
|
CLAIMANT’S RESPONSE
|
|
manner as to have brought or contributed significantly
to bringing the work of the Commission to a state of impasse and/or such a
stage that a majority of her fellow Commissioners are unable
to work with
her;
|
cannot proceed (para. 8)
Unable to continue
working with Gafoor (para 8) |
Page 5 under the
heading “Remedy”
|
|
(g) conducting herself in relation to the business of
the Commission including its confidential processes and documentation in
a manner which is likely to bring the Commission
into disrepute;
|
See letter from Chairman:-
Leaks and public odium (paras.
6&7)
|
Page 2 under the heading
“Letters from the Chairman and the other two commissioners”,
Page 1 under the heading “Public perception”
|
|
See letter from Member, Neil
Rolingson:-
Leaks (paras. 2, 3 and 4)
|
Page 2 under the heading
“Letters from the Chairman and the other two
commissioners”
|
|
|
See letter from Member, Ann
Marie Bissessar:-
Public attacks and leaks (paras. 7
& 8)
|
Page 1, Page 2 under the
heading “Letters from the Chairman and the other two
commissioners”, Page 4 (e)
|
|
|
(h) conducting herself in relation to the business of
|
|
|
|
INQUIRY INTO CONDUCT
|
ALLEGATION BY CHAIRMAN/
MEMBER
|
CLAIMANT’S RESPONSE
|
|
the Commission and in her relations with her fellow
Members and staff of the commission in such a manner as to have undermined
the authority of the Commission;
|
|
|
|
(i) notwithstanding having had the gist of the
complaints above drawn to her attention, dismissing the said complaints as
being petty allegations which are patently untrue;
|
|
|
APPENDIX B
Abuse of process
Cases Considered
1. Harrikissoon v Attorney General of Trinidad and Tobago [1980] AC
265
2. Privy Council Appeal No. 83 of 2007 Felix Augustus Durity v The AG of
T&T
3. Strachan v The Gleaner Co Ltd [2005] UKPC 33, [2005] 1 WLR 3204
4. Jaroo v Attorney General of Trinidad and Tobago [2002] UKPC 5, [2002] 1
AC
871
5. Attorney General of Trinidad and Tobago v Ramanoop 2005 UKPC 15
6. Civ. App. 30 of 2004 Basdeo Panday v The AG of T&T
7. Chokolingo v Attorney General of Trinidad and Tobago [1981] 1 WLR
106
8. Attorney General of Trinidad and Tobago v McLeod [1984] 1 WLR 522
9. Hinds v The Attorney General [2001] UKPC 56
10. Boodram v Attorney General of Trinidad & Tobago [1996] AC 842
11. George v Attorney General of Trinidad & Tobago (8 April 2003,
unreported)
12. Meek v Powel [1952] 1 All ER 347
13. R v Webb [1999] EWCA Civ 1858
14. Newsouthgate Metals Ltd v London Borough of Islington [1996] Crim L.R.
334
15. Claim No. CV 2008-00667 John Henry-Smith & Barbara Gomes v The
Attorney
General of Trinidad and Tobago and The Director of Public Prosecutions
Fundamental freedoms
1. Panday v Gordon Privy Council Appeal No. 35 of 2004
2. Roodal v The State Privy Council Appeal No. 18 of
2003
Fundamental freedoms Protection of the Law
1. Thomas v Baptiste [1998] 54 WIR 387
2. Attorney General & Ors. V Joseph(Jeffrey) & Boyce (Lennox) [2006] 69 WIR 104
Fair Hearing
1. Re Pergamon Press Ltd. [1971] Ch. 388, [1970] 3 All ER 535
2. Reg. v Gaming Board for Great Britain, Ex parte Benaim and Khaida [1970]
2 All
ER 528, [1970] 2 QB 417, [1970] 2 WLR 1009, [1970] EWCA Civ 7
3. Wiseman v Borneman [1971] A.C. 297
4. R v Secretary of State for the Home Department, Ex p Doody [1993] UKHL 8; [1994] 1 AC
531
5. McInnes v Onslow Fane and another [1978] 3 All ER 211
6. Herring v Templeman and others [1973] 3 All ER 569
7. R v Senate of the University of Aston, ex parte Roffey [1969] 2 All ER
964
8. R v Secretary of State for the Home Department, ex parte Mughal [1974]
Q.B.
313
9. Rees v Crane (Privy Council Appeal No. 13 of 1993); 1 All ER 833
10. Huntley v The A.G of Jamaica [1995] 2 W.L.R. 114; [1995] 2 A.C. 1
11. Wade and Forsyth, Administrative Law, 7th ed. (1994), at p.
566
12. PC Appeal No. 0092 of 2009 [2010] UPKC 2, Hearing on the Report of
the
Tribunal to the Governor of the The Cayman Islands – Madam Justice
Levers
13. Lewis v AG of Jamaica [2001] 2AC 50
14. Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322
15. R (on the application of Alan Lord) v The Secretary of State of State for
the
Home Department [2003] EWHC 2073 (Admin)
16. R(on the application of Anthony Benson) v Secretary of State for Justice [2007] EWHC 2055 (Admin)
17. Dr. Prabha Gupta v General Medical Council [2001] EWHC Admin 631
18. Mahon v Air New Zealand [1984] 1 AC 808
19. R v Secretary of State, ex p Fayed [1996] EWCA Civ 946; [1997] 1 All ER 228
20. Boodram v AG of Trinidad and Tobago [1996] AC 843
21. Sherman McNicholls v Judicial and Legal Services Commission [2010] UKPC 6, Privy Council Appeal 0023 of 2009
22. Carmel Smith v Statutory Authorities Service Commission CA#213 of
2007
23. Evan Rees and Others v Richard Alfred Crane [1994] 2 AC 173
24. Permanent Secretary of Ministry of Foreign Affairs and Patrick Manning v
Feroza
Ramjohn Civil Appeal No. 71 of 2007
25. Dhanraj Singh v AG [HCA S – 395 of 2001]
26. Lawrence v Attorney General of Grenada [2007] UKPC 18
27. Clark v Vanstone [2004] FCA 1105
28. Lewis v Heffer [1978] 1 WLR 1061
29. John v Rees [1970] Ch. 345
30. Furnell v Whangarei Schools Board [1973] A.C. 660
31. Tehrani v Argyll and Clyde Health Board (No. 1) [1989] S.L.T
851
Presidential powers /ouster
1. A.G. of Trinidad and Tobago v Phillip (P.C.) (1995) 1 AC
2. Andy Thomas & Kirkland Paul v A.G (HCA No 6346 & 6347/85)
3. Lincoln Smith v AG (HCA No. 2475 of 2003)
4. Sharma v Brown – Antoine [2006] UKPC 57; [2007] 1 WLR 780
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