By Andre Bagoo Monday, July 16 2012

click on pic to zoom in

Gladys Gafoor, deputy chairman of the Integrity Commission...

THOUGH lawyers for Gladys Gafoor, the suspended deputy chairman of the Integrity Commission, have said they will appeal a ruling which threw out her lawsuit against the decision of President George Maxwell Richards to appoint a tribunal to investigate allegations against her, the tribunal will move ahead with plans to hold a procedural hearing.

“Until something is filed we have to proceed with expediency as per our mandate and the way is now clear,” Neal Bisnath, counsel to the tribunal, yesterday told Newsday. “We will start moving the ball forward.” His comments raised the prospect of a first procedural sitting taking place at the Industrial Court later this month.

On Thursday, Justice Vashiest Kokoram, a High Court judge, threw out one of two court actions Gafoor has brought against the State in relation to the President’s decision in February to have her suspended with full pay pending investigation, by the tribunal, of allegations of “misconduct”. Those allegations from three members of the Commission – kept secret from Gafoor until the matter reached court – had coincidentally emerged in the wake of a row between Gafoor and Ken Gordon, the Integrity Commission chairman, over a special request from John Jeremie, a former PNM attorney general.

Gafoor filed parallel constitutional and judicial review challenges. The constitutional challenge, alleging unfairness in the manner by which the President chose to decide whether or not to appoint a tribunal, was thrown out. However the judicial review challenge, against the Integrity Commission, is due to be heard later this month.

On Thursday, Gafoor’s attorney Clive Phelps asked Kokoram for a stay of the tribunal’s proceedings pending the filing of an appeal. Kokoram declined.

“We have a mandate to move as quickly as possible,” Bisnath said. “The intention at this time is to move the process forward. The first hearing will most likely be procedural in nature. Before substantive hearings can take place there are administrative aspects that must be dealt with such as the issue of discovery of documents.”

“Other logistical aspects, which had been placed on pause in March, will now have to be resumed. The tribunal’s secretariat must be finalised as well as staffing and other services,” he said. He noted the legal fraternity’s August vacation is looming, however, and this could pose challenges.

The tribunal is chaired by Justice Michael de la Bastide, a retired Chief Justice and President of the Caribbean Court of Justice (CCJ). Members of the tribunal also include: Humphrey Stollmeyer, a Justice of Appeal, and Maureen Rajnauth-Lee, a High Court Judge. De la Bastide is understood to be currently out of the country and is due to return next week.

Earlier this year the tribunal had given an undertaking to await the outcome of the case ruled on last week.

Bisnath noted it was within Gafoor’s right to move forward with an appeal.

“If someone genuinely believes they are entitled to challenge a decision, that person is entitled to challenge it. If the effect is to delay proceedings, then so be it,” he said.

In his ruling, Kokoram found Gafoor made an “improper” request to the President asking him to order Gordon to withdraw a resolution passed in her absence and against her wishes to have her be recused from the consideration of a complaint against Jeremie.

However, Kokoram rejected arguments made by the State, including lawyers for the Integrity Commission, that Gafoor’s court action challenging the President’s decision was an “abuse of process.” While he did not find the President to have violated constitutional principles, Gafoor’s was entitled, in his view, to go to the court and make her case.

“In the final analysis I do not dismiss this claim as an abuse of process,” he ruled. “I have dismissed this claim on its merits. In my view the claimant (Gafoor) was entitled to articulate her right to the protection of the law as a right to be heard before the President made his decision.”

However, he also suggested the appropriate way for Gafoor to have handled the matter was to bring a judicial review against the Integrity Commission for referring secret complaints against her to the President without first disclosing such to her.

“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 judge said. He acknowledged, though, that this approach would face hurdles.

“The difficulty with this approach however is that the complaints were apparently made by individual members of the Commission and not the Commission itself.”

While moves are afoot for the start of proceedings before the tribunal, Gafoor’s judicial review against the Integrity Commission’s vote to force her off the Jeremie matter is due to come up at the High Court on July 23.