Link to full tribunal report on the CJ (on SeyLII site)
Link to full tribunal report on Judge Durai Karunakaran (on SeyLII site)
ANY reader unfamiliar with the long-running judicial drama in Seychelles needs to know a crucial fact: all the complaints investigated against Chief Justice Mathilda Twomey come from one source. That source is a fellow judge who has been suspended, whose dismissal on grounds of gross and serious misbehavior (including his prejudice against women) has been recommended and whose dismissal is now hanging over his head.
The judge in question is Durai Karunakaran, a senior member of the bench in Seychelles who spent some time as acting chief justice before the present CJ was appointed.
During 2016 a tribunal of inquiry was set up to hear complaints against Judge Karunakaran made by the CJ and that inquiry ultimately recommended his dismissal from office. Among the significant grounds for dismissal were his sexist behaviour towards the CJ: for example, he said he did not approve of women holding such positions, refused to vacate the CJ’s office after her appointment and continued for some time after her appointment to sign himself “Acting Chief Justice”. He also proclaimed himself “a Shakespeare man”, explaining he agreed with a line spoken by Hamlet: “Frailty, thy name is woman”.
Unabashed by the damning findings against him, Judge Karunakaran went on to make a number of serious allegations against the CJ. These ultimately led to an inquiry into her fitness to hold office – an inquiry that has now completely exonerated her. The findings may also lead readers to conclude that the judge was motivated by anger at not being made CJ himself, and that his anger was all the worse because the appointment went to a woman.
From the allegations made against the CJ by Judge Karunakaran, the tribunal members distilled four main groups of complaint. One concerns allegations of abuse of office, the second is his claim that she “destroyed evidence”, the third that she made public the report of the tribunal of inquiry into his own conduct, and the fourth concerned issues around the setting up of the tribunal of inquiry into herself.
Not a single one of these complaints was found to have any basis in fact, let alone to have constituted misbehavior.
To take the first group of complaints as an example: Judge Karunakaran alleged that the CJ abused her office and her authority in her actions after a letter was received from the President of Seychelles, announcing the suspension of the judge.
So what did she actually do once she received the presidential notice? She asked the judge to hand over the keys to his office immediately and she asked for his case files.
“Nothing the CJ did with respect to the communication of his suspension, his occupation of his Chambers or the removal of the files allocated to him could amount to an abuse of the CJ’s authority,” the tribunal found.
She had been fully entitled to ask him to hand over the keys and files since the effect of the immediate suspension was to “relieve him of his rights and duties as an active judge”. In addition, proper administration of justice made it essential that she should organize what should happen to the matters allocated to him.
It was both “lawful and appropriate” that she should take possession of the files and of the keys to the Judge’s chambers, the tribunal said.
A second ground to this complaint was that she had blocked the judge’s access to his court computer and thus to his personal email account. It turns out however that the reality was rather different. Access to his computer was indeed temporarily blocked but after a backup was made of the contents, the judge was again given access to his email account.
This was a “common incident of suspension”, said the tribunal. Preservation of information on the suspended person’s computer was “not exceptional or unreasonable”.
After describing the events around the judge losing and then regaining access to his email account, the tribunal said: “Regrettably, the judge was unable to view with any degree of objectivity the true significance of the actions of the CJ described above.
“Indeed, it is fair to say that his complaints about her conduct were typically expressed in immoderate terms, making serious allegations on the slightest evidence which, when examined, did not at all justify the language he chose to use.
“Although it may be a partial explanation for this extraordinary lack of moderation that he was emotionally engaged in the matters … we observe that it was most ill-becoming in any judicial officer, still less a Judge of the Supreme Court of the Seychelles, that he should describe events and express his opinions in this way.
“This unfortunate and pervasive lack of objectivity makes it difficult to accept, without independent supporting evidence, any of the judge’s assertions of disputable facts.”
The tribunal then gives a sample of the astonishingly intemperate language used by the judge, with some egregious allegations of the CJ’s intentions, and goes on to add what is perhaps the most damning sentence of all: that when he was questioned in the tribunal, the judge “eventually conceded, as was inevitable, that no abuse of office by the CJ was involved”.
The remaining three grounds of complaint against the CJ all follow a similar path. After an analysis of each the allegations made by the judge against the CJ, the allegations are dismissed as groundless, with the words and views of the judge – quoted in the report – sometimes making him sound quite mentally unstable.
Though the outcome of the latest tribunal concerns the CJ only, the findings of the report will inevitably also impact on Judge Karunakaran. He is still suspended. The August 2017 report into his own behaviour found “gross and serious misbehaviour” warranting his removal from office. Normally that would automatically require immediate dismissal by the Seychelles President, but the judge has brought a series of court challenges that have delayed the final act.
One final appeal remains – a pending challenge at the Court of Appeal. Nothing in this latest report challenges the outcome of the previous tribunal’s inquiry into the behaviour of the judge. Unless his legal team can produce startling new evidence or argument, he is fast running out of options: dismissal looms.
