SUSPENDED deputy chairman of the Integrity Commission, Gladys Gafoor, has lost in her bid to have Justice Vasheist Kokaram recuse himself from hearing her judicial review matter.
Her attorneys have given notice that they intend to appeal.
In dismissing the application in the Port of Spain High Court yesterday, Kokaram said the first misstep by Gafoor and her attorneys was when an application for a recusal was made by way of a private and confidential letter addressed directly to the sitting judge.
"This is wholly inappropriate," Kokaram said.
"One must be careful with direct correspondence as it may be interpreted as an attempt to intimidate a judge. That was not what was intended in this case, having understood counsel's explanation.
"The second misstep is that it was copied, not to the parties in this case, but to the Chief Justice, who has absolutely no interest in this application or this matter.
"It is trite law and it was conceded by attorney for the claimant (Gafoor) that decisions on recusal are to be made by the sitting judge 'to the best of his ability'. 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 said recusal applications should formally be made in the presence of all parties supported by an affidavit setting out the clear grounds for the challenge and the evidence being used to support it.
He said, quite apart from the procedure adopted, the letter sent to him did not make it clear on what ground the challenge for recusal was being made. He said it was only in oral submissions that Gafoor's lead attorney, Clive Phelps, made it clear the challenge was on apparent bias.
In the letter dated September 20, Phelps contended that Kokaram had prejudiced himself from hearing the judicial review matter by accusing Gafoor of impropriety when he dismissed her constitutional motion on July 11. Kokaram disagreed.
Phelps said also that Kokaram, when he disclosed at the start of the matter that he was chairman of the Mediation Board of Trinidad and Tobago on which Gafoor's son, Anthony Gafoor, is also a member, failed to disclose that the appointment was made by the President, who was a party in the constitutional motion.
"This means that the President has implicit power to remove your Lordship from membership and chairmanship of the board and to this extent it may appear that you are beholden to His Excellency."
Kokaram said the allegation "simply makes no sense" since it was the Chief Justice who nominated him to sit on the board.
He said, in any event, judges are appointed by the President. The President, he said, is not a party to the judicial review proceedings.
Phelps also argued that the Mediation Board is under the purview of the Attorney General, who was also a defendant in the constitutional motion.
Kokaram said he did not know if he should seriously deal with that submission since Phelps, when asked, could produce neither evidence nor basis in fact or law to make such a statement.
"If that was a ground for disqualification then is it to be suggested that I cannot sit on any case in which the Attorney General is named as a party? Or what of the numerous matters that I have dealt with routinely against the State in assault and battery cases, false imprisonment, judicial review ... the Attorney General's action is not under review in these proceedings."
Phelps said the board, last December, requested payment of financial benefits to board members.
Kokaram responded by saying that no request for a stipend or remuneration has been made for him or members of the Judiciary on the board and that their service is entirely voluntary.
"A request was made for other members of the board to receive an allowance which will assist them in the performance of their board functions and in recognition of their dedicated time, service and commitment and the work of the board in the development of mediation in this country."
Appearing on behalf of the Integrity Commission were attorneys Deborah Peake SC, Ravindra Nanga and Marcelle Ferdinand, while attorneys Avory Sinanan SC, Jagdeo Singh and Kamala Mohammed-Carter represented the Attorney General.