MOVE JUSTIC KOKORAM
By Andre Bagoo Tuesday, October 9 2012
LAWYERS representing Deputy Chairman of the Integrity Commission Gladys Gafoor have written Chief Justice Ivor Archie asking him to remove High Court judge Justice Vashiest Kokoram from any further consideration of matters involving Gafoor on the basis of apparent bias, according to reliable sources.
Contacted yesterday, attorney Clive Phelps, who is lead counsel for Gafoor in a series of cases before the court, refused to comment on the matter but Newsday understands from parties to the cases involving Gafoor that an emergency hearing to take submissions on recusal has been scheduled for tomorrow at the Port-of-Spain High Court.
The lawyers are seeking the judge’s removal from the case on the basis of three issues which have come to light in relation to the conduct of a judicial review case brought by Gafoor over her suspension from the Integrity Commission which was heard by Kokoram over five months this year starting in March.
Firstly, the lawyers are seeking recusal on the basis of the impression created by the fact that Kokoram chairs the Mediation Board of Trinidad and Tobago, a statutory body whose members are appointed by President George Maxwell-Richards. Kokoram was asked in the case to consider whether the President’s actions in relation to the suspension of Gafoor breached her constitutional rights.
Secondly, the lawyers claim the Mediation Board has recently applied for and successfully obtained approval from the State for the introduction of the payment of fees for its members. They argue that this request falls within the remit of the Ministry of the Attorney General, a party to the case.
Thirdly, the payment of such financial benefits would, in the view of the attorneys, make the entire Mediation Board subject to the Integrity Commission itself. The Integrity Commission was a party to Gafoor’s lawsuit.
The 13-member Mediation Board was set up to administer mediation practices in the country. The function of this body is primarily one of regulating mediation, a common tool used to prevent disputes from going to full-fledged litigation, thereby reducing the caseload on the civil courts.
According to the Mediation Act of 2004, the Board is appointed by the President, who appoints four members at his own discretion but then appoints the other members who are nominated or appointed ex officio, by virtue of office. The Board must comprise two judges, both nominated by the Chief Justice.
On March 19, the first day of hearing of constitutional and judicial review lawsuits brought by Gafoor against the Integrity Commission, the President, the tribunal appointed to probe her and the Attorney General, Kokoram had disclosed to all that he sat on the Mediation Board with Gafoor’s son, Anthony Gafoor. The judge said in open court, “I would like to make a disclosure. I am the chairman of the Mediation Board. One of the members of the board is his Honour Anthony Gafoor who sits on the board as a certified mediator.”
The judge then halted the proceedings and retired to his chambers to give lawyers time to consider the implications of his disclosure.
Lawyers for the Integrity Commission (Deborah Peake, SC); the Attorney General (Avery Sinanan, SC, Jagdeo Singh); for the tribunal appointed to probe Gafoor (Neal Bisnath) and for Gafoor (Clive Phelps) engaged in talks for 13 minutes before the judge returned to courtroom POS 08.
Sinanan suggested the judge be allowed to preside over procedural case management issues but later, after the submission of detailed written evidence, come to a decision as to whether or not he should step down, depending on the evidence presented to the court.
The judge ruled that he would decide the issue at a later stage, if necessary, after submission of the detailed affidavit evidence from parties in the case. He said he would preside over the initial procedural phases of the matter, “for the sake of moving the matter forward.”
“And when all of the affidavits come in I imagine it is a matter I will raise with the parties again,” Kokaram said.
Whether or not Kokaram ever did this is unclear: he later ordered the media out of the case. For several weeks, all of the submissions in relation to the matter were closed to the media. The case was only re-opened to the media after strong objections were raised by Phelps. The judge was still in place by July, when he delivered a ruling against Gafoor, throwing out her constitutional motion.
A judicial review and an application for costs are understood to still be pending before the judge.
Contacted yesterday, spokesperson for the Chief Justice, Jones P Madeira, said he had no knowledge of any application for the judge to recuse himself and could not offer further comment until further checks.
“I don’t know of any matter in which a judge has been asked to recuse himself or herself,” Madeira said.
The Attorney General is charged with the administration of legal matters and government contracts. The responsibility for community mediation, however, also falls to the Ministry of Community Development.
Currently, judges are not required to file declarations of income to the Integrity Commission, but persons on state enterprises or bodies performing public functions do.
The application for recusal comes amid a saga which started with an application for Gafoor to recuse herself on the basis of apparent bias, in an application by former PNM Attorney General John Jeremie. Jeremie asked Gafoor – the lawyer member of the Commission – to step down from a probe of him. The request prompted a series of private meetings between Gafoor and the Commission chairman Ken Gordon, who asked her in November last year to step away from the case.
When Gafoor refused, the Commission met as a board and three members voted to force her to recuse herself, namely Gordon; Professor Ann Marie Bissessar and Neil Rolingson. The three members also wrote the President complaining about Gafoor. The President later suspended Gafoor after meeting her and giving her “the gist” of the allegations in letters which were not given to her until a later stage. The letters complained of “boorish” conduct, a charge denied by Gafoor.
THE MEDIATION BOARD
The Mediation Act 2004 established a body comprising persons of various expertise including certified mediators and headed by members of the Judiciary. The function of this body is primarily one of regulating mediation in this jurisdiction. The members of the Board are appointed under Section 4 of the Act which reads:
4. (1) The Mediation Board shall be appointed by the President and shall comprise—
(a) a Chairman, who shall be a judge of the Supreme Court or a judicial officer nominated by the Chief Justice;
(b) a Deputy Chairman, who shall be a judicial officer nominated by the Chief Justice;
(c) four members of the public nominated by the President in his own discretion;
(d) two certified mediators, or for the purposes of the First Mediation Board, mediators nominated by the Attorney General;
(e) a psychologist nominated by the Minister with responsibility for Health; (f) a person nominated by the Minister to whom responsibility for community mediation is assigned;
(g) an attorney-at-law nominated by the Law Association of Trinidad and Tobago;
(h) a representative of the academic staff of the Hugh Wooding Law School nominated by the Principal of the Law School; and
(i) the Administrative Secretary to the Chief Justice or his nominee who shall be the Secretary to the Board.