Gafoor v The Attorney General and Integrity Commission
| Jurisdiction | Trinidad & Tobago |
| Judge | Kokaram, J. |
| Judgment Date | 12 July 2012 |
| Neutral Citation | TT 2012 HC 245 |
| Docket Number | CV 876 of 2012 |
| Court | High Court (Trinidad and Tobago) |
| Date | 12 July 2012 |
High Court
Kokaram, J.
CV 876 of 2012
Mr. Clive Phelps and Mark Seepersad instructed by Ms. Nicole De Verteuil-Milne for the claimant.
Mr. Avory Sinanan S.C. and Mr. Shastri Prasad instructed by Ms. Carol Cuffy-Dowlat, Mr. Alvin Ramroop for the first defendant.
Mr. Neal Bisnath for the Tribunal, the second defendant.
Ms. Deborah Peake S.C. and Mr. R Nanga instructed Mrs. Marcelle Ferdinand of J.D. Seilier & Co. for the Integrity Commission, the Interested Party.
Constitutional Law - Fundamental rights and freedoms — Right to protection of the law — Whether appointment of Tribunal was unconstitutional.
The duty to act fairly in administrative decision making whether made by the President of the Republic of Trinidad and Tobago or a public officer is not a mathematical formula to be applied mechanistically nor at the other end of the continuum is it a duty to be neutralized to a meaningless phrase. The notion of “fair play” in action suggests that what amounts to a fair procedure will vary with each case. It depends upon the nature of the inquiry and the statutory backdrop. Substantial fairness is a fundamental principle of common law infused in the fundamental rights of “the protection of the law” and “due process” enshrined in the Constitution. What is fair is contextual and there is no magic in the concept so long as there is achieved a standard of behaviour that is fair and at minimum the participation of the person to be adversely affected by a decision in the decision making process. The level of participation will vary with the demands of the particular administrative procedure, however the requirement to participate is the common denominator in the requirement to act fairly. In the establishment of Tribunals to enquire into acts of misconduct by public officials, the decision to trigger this disciplinary mechanism in most cases must be carefully exercised and anxiously scrutinized by the Court to ensure there is “substantial fairness”. The decision must bear the hallmarks of fairness and legality. In this constitutional motion both parties have advanced their respective views on the content of the right to be heard. This is the touchstone to determine the constitutionality of the establishment of a Tribunal to enquire into alleged acts of misconduct said to be committed by Mrs. Gladys Gafoor, Member and Deputy Chairman of the Integrity Commission (“the Commission”).
His Excellency the President of the Republic of Trinidad and Tobago on 9th February 2012, acting pursuant to section 136(9) of the Constitution, appointed a Tribunal to investigate complaints against Mrs. Gafoor, made by Kenneth Gordon, the Chairman and two other members of the Commission, that she engaged in conduct and behaviour which amounted to misconduct and/or misbehaviour in office.
The Tribunal consisted of a Chairman Mr. Michael de la Bastide former President of the Caribbean Court of Justice and two other members: Justice M. Rajnauth-Lee and Justice of Appeal Humphrey Stollmeyer, sitting judges of the High Court and Court of Appeal respectively. The said Tribunal was further mandated by His Excellency to report to him and advise on two matters. Firstly whether such facts as found by it amount to conduct and/or behaviour within the meaning of the Integrity in Public Life Act, Chapter 22:01 (“the Act”) and section 136(7) of the Constitution. Secondly whether Mrs. Gafoor ought to be removed from the office of member and Deputy Chairman of the Integrity Commission pursuant to section 136 (10) of the Constitution and section 8(2) of the Act.
His Excellency also at the same time, acting pursuant to section 136(11) of the Constitution, by letter dated 9th February 2012 suspended Mrs. Gafoor as member and Deputy Chairman of the Integrity Commission with full emoluments and salary until further notice. Although the suspension was not imposed by way of a penalty and not disciplinary in nature, the publicity associated with the said suspension and the display of dissatisfaction and acrimony played out in the full view of the public between herself and members of the Commission, culminating in this intervention by his Excellency, would naturally have affected Mrs. Gafoor's reputation as a member and Deputy Chairman of the Commission. The very nature of the inquiry is an investigation into her capacity to continue to hold office in a Commission which has been charged with the powerful constitutional role in preserving and promoting the integrity of public officials and institutions in our democracy. It is an investigative process whereby her integrity in the affairs of the Commission will be under close scrutiny by the Tribunal.
Mrs. Gafoor is now seeking to challenge in these constitutional proceedings the appointment of this Tribunal. She raises the question as to whether His Excellency acted in contravention of her fundamental rights enshrined in section 4(b) of the Constitution of the right to the protection of the law and the right to natural justice. Although it is accepted as common ground in the proceedings that she will have the full right to be heard before the Tribunal, she contends that at the stage at which the President is considering whether to appoint the Tribunal or not she should have been given a fair opportunity to be heard. In the classic Rees v. Crane (1994) 43 W.I.R. 444 scenario this case similarly calls into question the duty of the decision maker in affording the individual, who may be the subject of a disciplinary hearing, a right to be heard at the preliminary stage before triggering a full investigation into that official's conduct.
As a matter of principle there is no dispute between the parties of the applicability of the salutary constitutional principle confirmed by the Law Lords in Rees v. Crane that at the preliminary stage in this investigation the common law and constitutional principle of fairness applies to Mrs. Gafoor. This principle applies as much to the former Justice Crane as it does to any individual. The content of that right to a fair hearing is contextual. Fairness would require that the person who is adversely affected by the decision will have an opportunity to make representations before the decision is taken. This is so even for a preliminary decision depending on the factual matrix, the legal context and the nature of the investigation. However there is no immutable standard of the requirement of fairness. It is not iron cased nor is it inscribed in tablets of stone. The constitutional principle of fairness is flexible. Although the notion of fairness is a flexible concept, it cannot be stretched beyond its limits of elasticity and applied without regard to the appropriate context.
Although the central issue in this case was whether Mrs. Gafoor received a fair hearing at the preliminary stage of this investigation this is not to overshadow two other important issues: First whether the Court has jurisdiction to entertain this question at all in light of the constitutional ouster in the form of section 38 of the Constitution whereby the President is not answerable to any Court for the performance of the functions of his office or for any act done by him in the performance of those functions. Such constitutional ousters typically receive the Endell Thomas v. AG (1981) 35 W.I.R. 375 treatment beginning with the premise that the Court will jealously guard its supervisory jurisdiction and will be slow to uphold constitutional ousters in the face of clear breaches of constitutional rights. Secondly the Defendant contended that the motion is an abuse of the process as she was not denied her access to the courts and therefore there can be no arguable claim for breach of her “protection of the law” right. This calls for a revisiting of the Law Lord's definition of the right to the protection for the law as espoused in AG v. Mc Cleod [1984] 1 All E.R. 694, a constitutional right often viewed through restrictive rather than a liberal constitutional interpretative lens.
In this case however Mrs. Gafoor was afforded a hearing by His Excellency before he made his decision to appoint the Tribunal. There can be no dispute as to this fact. He brought to her attention weeks before making his decision, the allegations which were being made against her by the Chairman and two other members of her Commission. His Excellency made the invitation to meet with the claimant without any statutory mandate to do so and in light of a clear constitutional discretion set out in section 136(8), to make a decision “on his own initiative” that the question of the removal of an officer from office ought to be investigated by the appointment of a Tribunal.
There has been no case cited to this Court that deals with the question of the requirement of fairness by the President himself when he exercises that disciplinary function set out in section 136 of the Constitution. His Excellency's constitutional discretion is however not absolute and limited to the extent, by the infusion by law, of the constitutional principle of natural justice and the requirement to act fairly which at the minimum requires a level of participation by the subject of the proposed inquiry before triggering the investigative machinery.
From a broad overview of the facts it cannot be successfully argued that His Excellency acted with stealth, or stole a march on Mrs. Gafoor, or did not involve her in his deliberations before appointing a Tribunal. Complaints about the behaviour of Mrs. Gafoor were made by the Chairman and the two other members in their letters written to His Excellency dated 23rd, 20th and 22nd January 2012 respectively. His Excellency did not provide Mrs. Gafoor with copies of the letters, neither did she make a request to view them before she...
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