"Passing the baton" for judicial discipline in Seychelles

THE delegation from the Southern African Chief Justices’ Forum was invited by the judicial leaders of Seychelles for a fact-finding mission against the background of growing judicial difficulties.

Most prominent in that situation is a senior judge and former acting chief justice, Duraikannu Karunakaran, on the one hand and, on the other, the chief justice, first woman to hold the position in Seychelles, Mathilda Twomey. Over the last few years, decisions by Karunakaran have been strongly criticized in appeal court judgments, and a formal complaint was made against him by the chief justice relating to his behaviour as well as to his court work.

He is now under suspension, and the lack of presidential action to remove him, despite recommendations for his dismissal made nearly a year ago, has left observers alarmed about judicial independence and the rule of law in Seychelles. This has been worsened by the fact that the chief justice is now herself under threat of what appears to many observers as a retaliatory inquiry, as well as possible impeachment.

As part of his ongoing fight against dismissal, Judge Karunakaran challenged the validity of the decision by the constitutional appointments authority (the CAA) to appoint a tribunal that would investigate the complaints against him.

The judge argued that after the chief justice made an official complaint about him to the CAA, that body “arbitrarily and unconstitutionally, without making an assessment of the complaint” appointed a tribunal to investigate. In his view the CAA ought first to have considered whether the complaints merited such an investigation and he ought to have been given the right to be heard on the complaints before any referral to a tribunal.

One of the most bizarre features of the case is that the CAA did not contest the allegations of arbitrary and unconstitutional behaviour made against it by Judge Karunakaran. Quite the opposite; in fact, the CAA – whose membership has completely changed since the decision was taken to investigate the judge – agrees with all his complaints.

Perhaps the most alarming part of the CAA’s answering papers is the section in which it says, of the minutes and records kept by the CAA of its meetings and decision in the Karunakaran matter: “The veracity of the facts stated and the decision recorded in the minutes are doubtful”. The CAA also said that, in its previous incarnation and with its previous members, it did not act constitutionally or independently. Because of this, says the CAA, “the requirements of natural justice and procedural fairness were lacking” when it took the decision to set up a tribunal.

The constitutional court judges were delicate in their response to this strange situation: “We are intrigued,” they said, by the fact that Judge Karunakaran and the CAA adopted a “concerted approach”, and by their “stance of complete agreement with each other regardless of the merits of their contentions.”

The judges said they considered that any decisions taken by the CAA were “not personal and private matters to be performed by the members”. They were official CAA decisions regardless of who the appointed members might be.

From the evidence of witnesses who had been part of the previous CAA it was clear that Karunakaran did not address the CAA on the complaints against him. The CAA itself, however, had deliberated on these complaints and on whether to appoint a tribunal of inquiry.

Members of the “previous” CAA had submitted to the appeal court that this body was not required to have Judge Karunakaran appear before it to give evidence about the allegations against him as these complaints were precisely the matter that would be investigated by the tribunal.

The attorney general, second respondent in the case, had made a number of “strong points” to the court, said the judges. These included a submission that the CAA was allowed to regulate its own proceedings. Thus, given the absence of any other law on how complaints should be handled, it “could be presumed” that the CAA acted correctly, in terms of how it dealt with the initial complaint against the judge.

In the view of the attorney general, the CAA might decide to ask the judge concerned to comment on a complaint before it decided to act and appoint a tribunal. “But where there are (a) multiplicity of clear and unambiguous serious charges which ex facie require a comprehensive inquiry by the tribunal there would be no necessity to require the judge concerned to be called to a preliminary inquiry by the CAA.”

The CAA effectively accused itself of acting in “gross contravention” of the constitution, saying it had “arbitrarily … and unconstitutionally” appointed the tribunal, but the attorney general thought otherwise, arguing that the CAA had no mandate to hear the complaints against the judge. His right to be heard would be exercised at the tribunal.

In their decision on these competing views, the constitutional court judges said the CAA had no powers of investigation. All it could do was to “consider”. The tribunal had a mandate to investigate complaints and make recommendations about whether the judge concerned should be removed from office. The CAA’s only powers were to “consider” whether the question of removing the judge “ought to be investigated”.

“We are of the firm opinion that the CAA’s sole role is to look at the complaints and make a decision as to whether the matter should move forward to the next step, being investigation. It is not the role of the CAA to hear the judge concerned or to come to a decision as to the truth of the complaints. That is for the tribunal.”

The court concluded that the CAA had very limited decision-making powers and the right to a fair hearing did not arise at the point when the CAA received a complaint, nor at the time it considered whether to refer a matter to a tribunal.

The judges quoted two cases as the “closest” to the issue, one from Lesotho and the other from Kenya, and quoted from the Kenyan case that the judicial service commission’s role was to “pass the baton to the tribunal” which would then conduct a full hearing where cross-examination of witnesses will be the “unfettered right” of the judge under investigation.

The judges of the Seychelles constitutional court said their conclusion was that the CAA “was not under any legal requirement” to hear Judge Karunakaran during the stage when they met to consider whether to set up a tribunal. Thus his right to a fair hearing had not been violated and the appointment of the tribunal was “in accordance with the provisions of the constitution and the law”.

Responding to the decision, Judge Karunakaran is quoted by the Seychelles News Agency as saying it was “unfair” and a “joke”, leaving a loophole that could be exploited by anyone with a complaint against a judge. “Anyone can come and make a complaint by a judge anytime they want and the CAA will immediately set up a tribunal for the judge to stand trial.”

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Read the full judgment of the Constitutional Court of Seychelles on SeyLII: Karunakaran v Constitutional Appointments Authority & Ors (CP 03/2017) [2018] SCCC 10 (26 June 2018);