When a judge allegedly goes rogue...

‘Pervasive sexism’ and ‘threatening and aggressive actions against colleagues’ – these are just two of the many allegations made by the present Chief Justice of Seychelles against one of the country’s most senior judges, former acting Chief Justice Durai Karunakaran.

Earlier this year, A Matter of Justice reported on an appeal judgment criticising what appeared to be an astonishing series of decisions by Karunakaran related to parties contesting the elections. So stringent were the court’s comments that it was clear action against the judge was in the air.

Now a new decision of that country’s Court of Appeal has disclosed, as part of the judgment, the controversial list of ‘offences’ faced by Karunakaran. He was suspended in October 2016 but until the annexure of offences was released as part of the latest judgment, the public has been in the dark about what it was that he was supposed to have done.

It has now become clear that the Chief Justice, Mathilda Twomey, complained about her colleague to the constitutional appointments authority. That body in turn considered that the complaints ought to be investigated and established a ‘tribunal of inquiry’. The tribunal’s members must include a judge of the Commonwealth and two judges of the local Supreme Court. Once the tribunal has finished its inquiry, it must recommend to the President that the judge’s suspension be lifted or that he be removed from office.

The case of Karunakaran has reached the stage where he has been informed of the allegations made against him and he has been asked to appear before the tribunal to respond. Proceedings are still supposed to be confidential, but the judge decided to challenge the process in court, saying he ought to have been heard by the constitutional appointments authority before that body referred the matter to a tribunal. Once he took that challenge to court the inquiry became a matter of public record.

The Supreme Court judge who heard his initial challenge decided that the case was ‘premature’ and did not meet the conditions for judicial review. Karunakaran then took the decision on appeal, and it is this judgment that has now been delivered, with the ‘charges’ against him as an annexure.

He listed nine grounds of appeal, and in dealing with them the Court of Appeal made it clear the judges were unimpressed with their content and the way these grounds were framed: ‘The appellant challenges the reasons of the learned judge under nine grounds. What are they? We are afraid they are not easily intelligible. Courts … in Seychelles or elsewhere, have continued impressing upon counsel to write plain English. We sympathise with the reader if the grounds of the appeal are painful to understand. We would have expected that Karunakaran J, who is after all a judge, gave us an English that would have been easier for everyone to understand.’

‘The grounds as formulated are so abstruse both in content and language that we could have rejected this appeal which goes against the basic principles of pleadings.’ Alternatively, said the appeal judges, they could have ordered compliance ‘with our Rules of Court for pleadings’. This would have compelled him to present the grounds of his appeal in plain English so that everyone in ‘such an important matter’ could clearly understand him. However, they decided not to do so in the interest of time, and instead tried to extract the sense out of each claim.

The appeal judges rejected all nine grounds and dismissed the appeal with costs.

Most people, however, will be more interested in the four-page document annexed to the judgment than in the arcane preliminary skirmishes to the impeachment tribunal. The annexure takes the form of a letter to him by three members of the constitutional appointments authority, listing the ‘substance of the complaints made against (him)’ to that body.

The letter says that in general, it is alleged that his professional conduct ‘falls short of the requirements under the constitution and the principles contained in the code of judicial conduct’. Inside and outside the courtroom his actions lacked ‘the integrity and propriety expected of a Supreme Court judge’ and that his conduct in turn threatened the reputation of the judiciary and undermined the cases he tried. Over the last years, his behaviour was ‘unbecoming of (his) office’. For example, it is alleged that he publicly disclosed confidential information about the internal functioning of the judiciary; that he refused to vacate the office of the Chief Justice even once a permanent Chief Justice was chosen, and that he continued to sign his judgments as the Acting Chief Justice despite the fact that a Chief Justice was appointed.

It is alleged that counsel or litigants who complained about his management of cases were ‘intimidated’; that he changed the contents of transcripts of court proceedings and that he altered ‘the content of a court order after delivering the order in open court’ and then replaced the original pages with his altered pages.

He allegedly refused to attend the official swearing in of the new Chief Justice and other judicial officers and openly told the new Chief Justice that he did not believe she was qualified for the position. Among the ‘threatening and aggressive actions’ against his colleagues is a court order he issued against the Chief Justice.

Bad though it might appear for this particular judge, his case is just the latest example of the volatile situation of the judiciary in the Seychelles. Over the last few years at least three other judges have experienced political and other problems that have put them under the spotlight.

In June 2016, the leader of an opposition political party posted a video online showing the house of the Chief Justice and disclosing its address. An angry mob pitched up. They verbally ‘abused’ her while one of the crowd spat at her, and she had to move out of her home for a time.

Another judge was alleged to have fraudulently changed the court record in a 2008 case, and the lawyer involved in the matter said she would be reporting the incident to the constitutional appointments authority.

A third judge, not a citizen of the Seychelles, is at the centre of a major political and legal dispute after his appointment was extended by an extra two years, and its validity was subsequently challenged.

This article was first published in A Matter of Justice, a free publication hosted by LegalBrief. To view the original article, click here.

To read the original decision of the Supreme Court, available on seylii.org, click here. To read the appeal decision of the Court of Appeal, available on seylii.org, click here.