PRESIDENT ACTED FAIRLY
By Jada Loutoo Thursday, June 21 2012
Deputy chairman of the Integrity Commission Gladys Gafoor has been accused of fashioning a fictional breach of her constitutional right by President George Maxwell Richards’ decision to suspend her and appoint a tribunal to investigate allegations of misconduct against her.
This was the main argument advanced by lead counsel for the Attorney General (AG) and the Integrity Commission in a constitutional motion filed by Gafoor, challenging the decision to suspend her and establish the Section 136 tribunal.
According to Avory Sinanan, SC, who represents the AG in Gafoor’s constitutional claim before Justice Vasheist Kokaram, the suspended deputy chairman has virtually conceded and confessed that she is abusing the system by acknowledging that a judicial review action could not be brought against the President because, by law, he is unanswerable to any court.
“Because the judicial review door is not open to them, the fact that the President is immune does not create an exceptional circumstance to bring a constitutional motion,” Sinanan argued, as he sought to convince the judge to dismiss Gafoor’s claims of a breach to her right to protection of the law.
Pointing out that Gafoor’s complaints could have been sufficiently argued before the tribunal, citing the case of former Chief Justice Satnarine Sharma against the State in which the Privy Council ruled that his arguments were best suited for the trial judge, Sinanan said the President had no other alternative but to appoint the tribunal, as he was legally advised to so do.
“Having regard to what transpired in the Integrity Commission, what was the President to do? The population expects fairness. The President met with the claimant and expressed his concerns and she was allowed to make notes and provide a response,” Sinanan noted, as he also emphasised that the President even at that stage was under no obligation to disclose the full particulars of the complaint. This, he said, would have been provided at the tribunal stage had it been allowed to carry out its mandate and not stymied by the legal action now before the court.
“We say the President acted fairly,” he argued. “The President gave her an idea of what the nature of the complaints were. He is not required to shift the evidence as he runs the risk of doing just what the tribunal was set up to do.”
According to Sinanan, Gafoor at her January 26 meeting with the President, asked for the opportunity to take notes and has now provided to the court evidence that she did not ask him to disclose the three letters he received from fellow members of the commission, including the body’s chairman Ken Gordon, complaining about her conduct.
Gafoor contended in her constitutional claim that the letters were never disclosed to her and as such she was never given the right to defend herself against the allegations.
“She was prepared to accept a summary. She knew she was going to write a response. She knew about the allegations. Is that a failure to respond?” Sinanan questioned.
He also submitted that “she who comes with a constitutional motion ought to come with her cards on the table.” He said Gafoor has not proven that the “gist” of the allegations provided to her by the President, of which she has complained, was not comprehensive, detailed and was deficient.
“You won’t see it. Her claim of a lack of fairness is without merit. Where are the contemporaneous notes she took? It is not before the court. There is nothing to show that the President was unfair,” he said, again pointing out that no prejudice would be suffered by her if she took her concerns to the tribunal.
In her submissions, Deborah Peake, SC, who leads the legal team for the Integrity Commission, as an interested party in the constitutional claim, told the judge he will find limited assistance in any authority on a complaint of a decision made by the President.
She said contrary to what was being argued by the claimant’s attorneys, it was the President who was under scrutiny. Peake accused Gafoor of changing her case after the letters were disclosed when her constitutional claim was filed and maintained that there was no evidential material to support her allegations. She also pointed out that there was no evidence that the President acted on the “say so” of anyone when he arrived at the decision to appoint the Section 136 tribunal.
“He acted carefully and sought and took advice in every single step he took. The (claimant’s) ground stands or falls on whether the court is satisfied, based on the contents of the letters, there was sufficient evidence to warrant the action he took,” Peake submitted.
She contended there was some level of inconsistency in Gafoor’s arguments, adding that where is the evidence that the President did not disclose with “particular clarity” the allegations against her. “Where is the evidence in support of the claimant’s allegations? Twist and turn it as you may, you are dealing with a case of a narrow path,” she told the judge.
Peake also pointed out that even when Gafoor was in receipt of the letters of her fellow commissioners, her case was not fortified but remained the same as it did when she first filed her action.
“You must not only allege but prove there was a breach of your constitutional right,” she submitted.
“Do you expect the President to come before the court? The burden to challenge his decision is a higher burden and however you approach it, unless you discharge your burden of proof, you can go nowhere,” she said of Gafoor’s constitutional claim.
Peake also agreed with Sinanan’s submissions that Gafoor could have taken her complaints to the tribunal.
She also pointed out that Section 38 of the Constitution provided the President with immunity from court action, unless any allegation of a breach on his part was proven by the accuser.
“There is absolutely no basis for the court to go behind the Section 38. There was no right to be heard and the claimant has not proven that her rights were breached,” Peake noted.
She said in her response to what the President had told her at their meeting on January 26, Gafoor acknowledged that there was an impasse involving an investigation before the commission, pointing out that there was widespread publicity on the issue and that the vice- chairman had previously met with Richards on December 31, 2011.
“She wrote two letters to the chairman of the Integrity Commission. There was a background,” Peake said in response to allegations that Gafoor had no knowledge of the complaints against her.
“The claimant was called in by the President who identified the evidence and gave her a gist of the three letters,” she said, pointing out that while doing so the President was also in receipt of and was acting on legal advice he received on how to treat with the issue. She said Richards was under no obligation to provide anything other than the salient aspects of the allegations made against the integrity body’s vice chairman.
Pointing out that Gafoor responded by letter to the President following their meeting, Peake noted, “Nobody knows what the gist was. She has not said what His Excellency told her. You had to be sufficiently apprised in order for you to be able to respond.”
“Having participated in the process you can’t now come and complain of a breach of natural justice,” she said, adding that Gafoor elected to go forward with what she was provided with by the President.
“It is very crucial when you are coming to court to complain of a breach of a constitutional right to provide the evidence. These are serious allegations against the President,” she noted.“There is no evidential or factual basis to find there was a breach of a constitutional right,” Peake submitted.
“The arguments being put forward are a matter for the tribunal not a constitutional court,” she maintained.
Labelling the allegations made by Gafoor against the President as “scandalous and whimsical,” Peake said it was irresponsible of her to make such allegations against the President without the backing of evidence in support.
Gafoor’s attorneys have argued that it was the decision the President took that was being challenged and it is clear that their client wanted the Tribunal quashed, so that there was no question of her taking her concerns there.
Gafoor has filed two public law claims against the Integrity Commission and the decision of the President.
In her judicial review application, which will be heard separately, Gafoor is questioning a decision by members of the commission last year, forcing her to recuse herself from an investigation involving former Attorney General John Jeremie. Gafoor is also calling on the court to quash a decision taken by the commission last December 19 forcing her to recuse herself from a matter involving Jeremie.
Jeremie had written to the commission asking for Gafoor and another commissioner — chartered accountant Seunarine Jokhoo — to be removed from all consideration of his matter, her application stated. The other members of the commission are Ken Gordon (chairman), Prof Ann-Marie Bissessar and Neil Rolingson. Gafoor is also requesting disclosure of the specific allegations against her.
She is also seeking aggravated and/or exemplary damages for “serious damage to my professional reputation and integrity.” Gafoor, who was appointed to the post in 2009, was suspended on February 9 by the President, who then appointed a three-member tribunal to probe the allegations against her.
Parallel to the judicial review application is the constitutional motion which Gafoor filed against the President in which she is challenging his decision to suspend her and to appoint a tribunal to investigate the allegations against her. According to her application, the decision to suspend her was made after the President allegedly received “three secret letters” from members of the commission.
Gafoor claims the letters were never disclosed to her.
Mark Seepersad, one of the attorneys who represents Gafoor, has argued that full disclosure of the allegations against her should have been made at the preliminary stage. He said all she was given was a “gist of a gist” of what was said against her, but he countered that she was required to be given sufficient notice of the case against her so that she could reasonably put herself in a position to go on record in her defence.
This, he said, was the basic proposition of fairness.
He also emphasised that the charge against her was not sufficient enough to have trigged the decision to appoint the tribunal, pointing out that the allegations before the investigative body were too vague.
According to Gafoor’s attorney, the allegations made by the commissioners were wide and referred to incidents which occurred over some period of time.
“How is she to understand the nature of the complaint against her? She’s entitled to the information contained in the letters to be able to provide a responsible response.
In their letters, which were published in Newsday, following a ruling by Justice Kokaram that they be made public as they were in breach of the Integrity in Public Life Act, Gafoor was accused of using boorish behaviour, threatening violence, insulting fellow commissioners and leaking confidential documents to the media.
The letters were dated January 20 (Bissessar’s letter), January 22 (Rolingson’s letter) and January 23 (Gordon’s letter).
In her own letter in which she responded to what she had been told during a meeting with Richards on January 26, Gafoor said any allegation she was responsible for undermining public confidence was baseless.
She acknowledged an impasse between herself and Gordon as it related to the Jeremie investigation, but said her contention was that proper procedure was not being followed by the chairman and the other two commissioners as it related to the request for her to recuse herself.
She said she had not seen the allegations made against her by her fellow commissioners and could not comment on them.
Seepersad said there was only one remedy available to Gafoor, that being to challenge the decision to appoint the tribunal.
Also representing Gafoor is Clive Phelps, instructed by Nicole De Verteuil-Milne and Assoc-
Appearing with Peake for the Integrity Commission is Ravi Nangar, instructed by Marcelle Ferdinand for JD Sellier and Company.
Sinanan leads Sastri Persad, Alvin Ramroop and Carol Cuffie-Dowlat, instructed by Kamala Mohammed-Carter for the Attorney General.