By JADA LOUTOO Friday, October 12 2012

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JUSTICE Vasheist Kokaram ...

JUSTICE Vasheist Kokaram has refused to step down from hearing the judicial review application filed by suspended vice-chairman of the Integrity Commission, Gladys Gafoor. He said there were no good grounds advanced by her to demonstrate an apparent bias on his part.

He has also refused to grant leave to stay his ruling to allow Gafoor’s legal team sufficient time to lodge an appeal.

Gafoor, through her attorney Clive Phelps, had asked that the judge recuse himself from adjudicating on the claim, on the basis that it was imperative in the interest of preserving the public’s confidence in the Judiciary. In his ruling yesterday, Kokaram said the fact that a litigant may not want a particular judge to hear his or her case, was no ground for a recusal.

“There is no basis to have the judge step down, unless there are good grounds to demonstrate apparent bias. Challenges such as the one made here is premised on speculation and surmise, and do not cross the bar.

“If I harboured any doubts in accord with standard practice and proposition of law, my doubt would have resolved itself in favour of recusal. But there is no basis for any reasonable doubt. I cannot burden my brothers or sisters with this case needlessly, nor do the administration of justice more harm than good by recusing, thereby setting back the clock on the law of recusals and proper case management principles,” he said in a 15-page judgment.

Phelps had argued that comments made by the judge in the parallel constitutional motion, which Kokaram dismissed in July, criticised Gafoor. According to Phelps, this also gave rise to the perception of bias. He also contended that the judge’s chairmanship of the Mediation Board of TT, a statutory body whose members were appointed by President George Maxwell Richards.

Also, the recent application by the board for the introduction of payment of fees for its members, fell under the remit of the Ministry of the Attorney General. He said that also contributed to the possibility the judge may find himself being accidentally biased, including the fact that the payment of fees to the Mediation Board members would subject them having to file declarations to the Integrity Commission.

Gafoor’s attorney had sent a private and confidential letter to the judge, and copied it to Chief Justice Ivor Archie. The move was intended to give Kokaram an opportunity to review his position on the case, especially when he said he would do so, when the case was first called in May. In their reply, attorneys for the Integrity Commission and the Attorney General, both labelled the application as “scandalous and troubling.”

Senior Counsel Deborah Peake, who leads the team for the Commission, and Avory Sinanan, SC, who represented the AG, both questioned the timing of the recusal application; made after Gafoor’s constitutional claim was stuck down by the judge.

Peake also expressed concern for the far-reaching consequences of the application, should the judge agree to step down, while Sinanan said it was only an attempt to derail the court and gave no good grounds for Kokaram to step aside.

He said the application did not elucidate the appearance of bias, but fell woefully short of doing so.

In his ruling, Kokaram admitted that a judge’s recusal was not a decision to be taken lightly, and was often done for a variety of reasons to preserve the impartiality of the judicial process and bolster the confidence of society in the integrity of the administration of justice and in the courts, as the bastions of the rule of law.

“There is no shame in either entertaining the question to recuse, or in actually stepping down. As judges, despite what we may perceive to be an inconvenience to another judge to fill the breach, so to speak, we must step down in the interests of preserving that public trust and confidence in the judicial process.

“In doing so we give true meaning to the right to be tried by an independent and impartial tribunal; an integral part of the principles of fundamental judges guaranteed by the Constitution of Trinidad and Tobago,” he noted. Kokaram noted that the tension between duty to sit, and the duty to preserve judicial independence and impartiality set the stage for a recusal process which had to be open, transparent, and fair.

But he stressed, such re-questions should not be scandalised by improper, spurious and baseless requests which will do nothing to inspire confidence in the administration of justice.

“Such applications must not in itself be seen as an attempt to excite suspicion and mischief, nor an attempt to ferret out information from the judge to make out a case for recusal.”

Kokaram reminded the parties that he had disclosed his chairmanship of the Mediation Board on the first day of hearing in March, as well as the membership of Gafoor’s son on the board.

He said he sat as an ex-officio member of the board, and he did not know that there was an instrument which transferred the operations of the board under the remit of the Office of the Attorney General.

Kokaram also made it clear that neither he, nor any other member of the judiciary on the Mediation Board, had requested a stipend, or any form of remuneration, and his service on the board was purely voluntary, without reward.

He did admit that a request was made for other members of the board to receive an allowance, but noted that no board member, to date, has received any stipend, remuneration or honorarium for their service.

Kokaram said Gafoor made several missteps in her recusal application; the first being that it was done in a private and confidential letter, addressed directly to a sitting judge. This, he said, was “wholly inappropriate” as one must be careful with direct correspondence as it may be interpreted as an attempt to intimidate a judge.

He said the second misstep was the copying of the letter to the CJ, whom he said, had absolutely no interest in the application, or the case, and not the other parties.

“There was no basis in law, or fact, to copy the Chief Justice not even as a matter of courtesy. Counsel must tread very carefully in handling matters such as these,” Kokaram noted.

He also said procedurally, unless there was sensitive matter which was a sought to be heard with the judge in chambers, recusal applications should be formally made in the presence of both parties, along with the supporting claims and evidence for doing so.

While he said the letter did nothing to provide an explanation for asking him to step down from hearing the judicial review claim, what he understood Phelps’ objection to be was, that although the lawyer had confidence in the court to deliver a just and impartial verdict, it was the suspicious man in the street who may question the court’s decision because of the arguments raised.

Kokaram defended himself, saying there was nothing in the statement made by him in the constitutional claim which remotely suggested he had pre-judged issues now before him in the parallel judicial review claim, nor was any pointed out to him by Gafoor’s attorney.

He said the argument that he was somehow “beholden” to the President as a result of his appointment as chairman of the Mediation Board, and as such could not impartially try the case made “no sense.”

“I cannot see how any fair-minded observer can come to the conclusion that I am beholden to His Excellency,” he said, adding that the President was not even a party to the judicial review claim.

He also questioned whether he could not sit on any case in which the Attorney General was a party because of the allegation that the Mediation Board fell under the AG’s purview, which was contended, but not proven, by Phelps.

The judge also noted, as was pointed out by Peake, that the case had been managed to trial stage, and it was “too late” to now come with a recusal application.

He also said to hear the matter from the start by another judge, will deprive other litigants of two days of trial, or an audience to manage, or settle cases.

“To accede to this challenge would certainly lead to a waste of judicial and parties resources which is inimical to the overriding objective,” he said.

In resisting a stay of the judge’s ruling, Sinanan said the recusal application struck at the heart of the administration of justice.

“If they want to vindicate their rights, then let them approach the Court of Appeal,” he said.

He said the allegations made in the application were a “blow for the administration of justice.

Gafoor’s judicial review application calls on the judge to rule on the legality of a decision by her fellow commissioners, last year, forcing her to recuse herself from an investigation into former Attorney General, John Jeremie.

Her lawsuit names the fellow members of the commission who took a decision that she should recuse herself from a matter involving Jeremie, who had written to the commission asking for Gafoor and another commissioner—chartered accountant Seunarine Jokhoo—to be removed from all consideration of his matter.

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 allegations against her.

Appearing with Peake on behalf of the commission in the judicial review were attorneys Ravindra Nanga and Marcelle Ferdinand, while attorneys Jagdeo Singh and Kamala Mohammed-Carter appeared on behalf of the Attorney General.