Controversial former top Seychelles judge, Durai Karunakaran, has done it again. The disgraced jurist, embroiled in yet another legal dispute relating to his behaviour, has lost his appeal against a contempt of court finding. The contempt relates to a highly offensive insult he whispered into the ear of the public prosecutor during proceedings related to another matter involving the former judge. Karunakaran quit the bench earlier this year to avoid being impeached over misbehaviour, but judgments in pending cases involving him had not yet all been finalised.
At first it seemed impossible: how could disgraced former senior Seychelles judge, Durai Karunakaran, have become involved in yet another court dispute? The last time I wrote about him, in August, I predicted that the decision handed down days before was likely to be the last in a very long series of cases under his name. But I was wrong.
The former judge resigned in March this year in order to forestall the presidential dismissal recommended by a tribunal into his behaviour. The facts as given in the decisions delivered this week go back to 27 March 2018 when the constitutional court was hearing some preliminary issues in a case involving the former judge. He was sitting on the left side of the court room and at some stage walked across the room to the right of the court where two state counsel were sitting behind the public prosecutor, Jarayaj Chinnasamy.
Karunakaran patted Chinnasamy on the back and said some words into the ear of the public prosecutor.
What happened next is best recorded in the dissenting decision delivered this week.
Counsel for Karunakaran, Philippe Boulle, was in full flight arguing a point on behalf of his client, when suddenly, immediately after Karunakaran whispered into the prosecutor's ear, Chinnasamy stood up.
Completely against the norm, the public prosecutor then broke into Boulle’s argument. Obviously agitated, he said that Karunakaran had come over and abused him in a nasty way. ‘Absolutely nasty abuses when my blood boils and then, as with due respect to this court, I stand with my rules. Now I have to leave this court. He provoked me to the extent where I cannot stand as a human being here.’
Pressed to repeat what Karunakaran had allegedly said to him, Chinnasamy said the words had been: ‘I (have) lost all respect for you. I never knew you would go to this extent. You are an ass-licker, I am sorry to say.’ The public prosecutor said the words belittled his dignity and cast negative aspersions on him and his career. He added that he was not able to continue his duty as counsel at that point.
Asked for his version of what had just happened, Karunakaran agreed that he had just spoken with Chinnasamy, but denied that he had said the impugned words. According to him, he ‘simply asked Chinnasamy “to make submissions sensibly”.’
The court, accepting that Chinnasamy’s version of events was correct, ‘invited’ Karunakaran to apologise, both to the public prosecutor and to the court. This he refused to do, saying he had not said the words complained of. The court also said that Karunakaran had no right ‘to go to the other side of the court and tell opposing counsel how he should do his work’. The issue of whether his actions and words had been in contempt of court then came up, and this issue, along with the petition then being dealt with by the court, were both postponed to the following court term.
When the matters were called six months later, the court issued an order holding that the incident had amounted to a misdemeanour and to contempt of court and that the court had invited Karunakaran to apologise to Chinnasamy. Had the apology been forthcoming the court would not have pursued the matter further. Since he had not apologised, however, a summons was issued for Karunakaran to show cause why contempt proceedings should not be continued against him. The bench, unanimously satisfied that there had been a contempt, found him guilty and sentenced him to pay a fine of 5000 Rupees or serve seven days in prison.
The next day, Karunakaran paid the fine. Soon afterwards, he brought an appeal against the contempt finding and sentence. And it was this appeal – heard by a court differently constituted from that which had originally dealt with the matter – that has now been finalised via the decisions issued this week.
The three judges split two to one. President of the court of appeal, Judge Francis MacGregor, with his colleague Judge Cedric Gustave Dodin, found that the contempt finding and sentence were justified. The third member of the bench, Judge Fiona Robinson, would have upheld the appeal.
The majority said any court had jurisdiction ‘to deal with contempt in the face of the court’, otherwise it would be deprived of control 'over whatever act a person may want to do whilst the court was in session’. They said it was contempt to disturb or obstruct a court with insulting behaviour in its presence and at a time when it is sitting. Insults directed to counsel could constitute contempt.
‘Calling someone an “ass-licker” is an obvious show of disrespect and scorn stated in an insolent manner intended to offend the integrity of a person’. The comment implied that the person so vilified was willing to stoop below ‘accepted standards’ to please superiors.
In her dissent, Judge Robinson said that the words said into the ear of Chinnasamy had not been heard by the bench, nor by the public. In that sense, Karunakaran did not insult Chinnasamy in open court, nor had his actions ‘disrupted’ the court.
In her view, the finding of guilt was based on a ‘fatal error’ by the court and she would have quashed the conviction.
The final upshot was thus that Karunakaran’s conviction and sentence stand.
* Are there any further cases involving him in which judgment is still awaited? – Time will tell; I wouldn’t risk hazarding a guess this time.