Seychelles National Party and others vs Government of Seychelles and others (CP 02/2014) [2014] SCCC 3 (08 July 2014);
Ruling
D.Karunakaran, ACJ (Presiding), B. Renaud, J.
[1] The first two Petitioners herein are Registered Political Parties in the Republic of Seychelles. They are represented in the instant proceedings by the leaders of their respective Political Parties. The third petitioner herein is an independent and non-partisan, civil society organization striving to promote the fundamental principles of democracy, good governance and human rights in Seychelles. According to the petitioners, the first two political parties had obtained the support of 44% of the electorates in the last Presidential election held in May 2011. However, it was the petitioners’ grievance that the electoral laws, processes and practices as existed then in the political arena were obsolete, uneven, biased and undemocratic. Therefore, they demanded the government - the 1st Respondent herein - to carry out the necessary electoral reforms, since those reforms were essential for ensuring free and fair elections. In protest of the government’s alleged failure to implement the electoral reforms, the petitioners boycotted the vote in the last general election held in September 2011 for the National Assembly. In response, the government in power committed to carry out the necessary electoral reforms. Accordingly, the Electoral Commission (EC)- the Third Respondent herein - mandated under Article 116 of the Constitution commenced the electoral reform-process in October 2011. The EC after having broad consultation with the Electoral Reform Forum, which inter alia, comprised all registered political parties including the petitioners, singled out the Public Order Act 1956, (POA) as a stand-alone piece of legislation that required priority attention for review and revision. Consequently, on the 7th September 2012 the EC submitted its recommendations to the 1stRespondent - the President of the Republic– containing proposals inter alia, for the revision of the Public Order Act, 1959. On the 28th November 2013, the 1st Respondent sent the Public Order Bill 2013, to the National Assembly. On the 6th December 2013 the Assembly approved the said Bill and enacted it into law entitled the “Public Order Act 2013” - hereinafter referred to as the “Act”. However, the Petitioners were dissatisfied with a number of Sections enacted in the Act, which were allegedly not in line with the recommendations made and allegedly contravening the provisions of the Constitution of the Republic of Seychelles. In this background of facts, the Petitioners have now come before this Court with the present Petition seeking a Constitutional remedy for a declaration that those Sections, which allegedly contravene the Constitution, are void.
[2] According to the petitioners, the Act in question is a major political legislation and fundamental to future free and fair elections that would determine the political destiny of the country. The scrutiny by this Court on the Constitutional validly of the Act, would involve the conflicting interest of the political parties, especially, between the party in power and the petitioners, who challenge its validity. Besides, it is the case of the Petitioners that the impugned Act is not only a major political legislation but also involves the Freedom of Assembly and the Freedom of Expression of the citizens, which are fundamental to free and fair elections in future.
[3] Be that as it may. The Constitutional Court assigned to hear the instant petition constitutes a panel of three Judges of the Supreme Court. One of them is the Hon. Judge Mohan Niranjit Burhan. At all material times, he was not a citizen of Seychelles. In 2008, he was appointed first time as an expatriate Judge of the Supreme Court of Seychelles for a term of five years. In terms of Article 131 (1) (e) of the Constitution, a person holding the office of Judge, in the case of a person who is not a citizen of Seychelles shall vacate that office, at the end of the term for which the person was appointed, unless the Constitutional Appointments Authority (CAA) recommends the appointment of that person (who has completed one term of office as a Judge) to the President of the Republic, for a second term of office, whether consecutive or not, of not more than seven years. The CAA may make such recommendation for a second term of office only when it finds exceptional circumstances to do so in a particular case that justifies a second term of office. In passing, it is pertinent to mention that the tenure of office in the case of an expatriate Judges is governed by the rule under Article 131(3) and an exception thereto, provided under Article 131(4) of the Constitution. The rule is simple and clear. That is, a person who is not a citizen of Seychelles may be appointed to the office of Judge for only one term of office. The exception to this rule is also equally simple and clear. That is, in exceptional circumstances, an expatriate judge who had been appointed for a first time and completed one term of office as such, may be appointed or reappointed, so to speak, for a second term of office. Coming back to the case of Hon. Judge Burhan, who had been appointed as an expatriate Judge of the Supreme Court of Seychelles, completed his term of first appointment for a five-year period by the end of 2013. Soon after the completion of his first term of office as an expatriate judge, it seems that in the eye of the CAA, no exceptional circumstances existed to qualify his reappointment for a second term of office or to say the least, the CAA did not recommend for his appointment as an expatriate judge for a second term of office. However, in the meantime, the Learned Judge applied to the Government for Seychellois Citizenship. The First Respondent, the President and Head of Government granted him Citizenship and caused registration of Mr. Mohan Niranjit Burhan as a Citizen of Seychelles in exercise of the prerogative conferred on him by Section 5(2) of the Citizenship Act, which reads thus:
[4] “The President may cause to be registered as a citizen any person not otherwise entitled to or eligible for citizenship of Seychelles with respect of whom, special circumstances exist, which in the opinion of the President, warrant such registration”
[5] Subsequent to and in consequence of such acquisition of Citizenship, the Learned Judge could eventually qualify and get appointed as a judge of the Supreme Court of Seychelles in February 2013, for his subsequent judicial tenure as a Citizen of Seychelles.
[6] Following the grant of citizenship and his reappointment as a Judge, a couple of Court cases including a Judicial Review, have been instituted by different interested parties, against the Hon. Judge Burhan challenging his reappointment as a judge of the Supreme Court and questioning his apparent impartiality and independence in judicial functions. These cases are still pending before the Supreme Court and the Constitutional Court for determination. In these circumstances, Mr. Derjacques, learned counsel for the petitioners, vivo voce raised objection for the first time begging the Hon. Judge Burhan -hereinafter referred to as the ‘impugned judge’- to recuse himself from hearing the instant petition.
[7] Thus Mr. Derjacques, showing the good tradition of the Bar, at first instance, brought his clients’ concern to the attention of the impugned judge about the public perception of the real possibility of bias and lack of confidence in the impartiality of the Judge in the adjudication process of the instant matter, in view of the facts and circumstances peculiar to the acquisition of his Seychellois Citizenship and subsequent appointment as Judge of the Supreme Court.
[8] Besides, Mr. Derjacques contended that the impugned Act is not only a major political legislation but also involves the Freedom of Assembly and the Freedom of Expression of its citizens, which are fundamental to future elections. Hence, even more importantly, the public perception against impartiality of the Judge and independence of the Institution - the judiciary - in adjudicating this particular petition cannot and should not be overlooked by the impugned judge.
[9] In response to the earnest request made by Mr. Derjacques for recusal, the Learned Judge took ample time to consider the request. He eventually, in his “Ruling”(sic) expressed his views and reasons in writing and declined to recuse himself from the case.
[10] Following his refusal to recuse, Mr. Derjacques filed a proper motion dated 13th May 2014 supported by the affidavits of Mr.Wavel Ramkalavan, the President of the Seychelles National Party and of Mr. Robert Ernesta, the Interim Leader of the Seychellois United Party seeking the following orders:-
a) That Honourable Judge Mr Burhan, one of the three Judges in the above-mentioned Petition recuses himself from the case or
b) That this Honourable Constitutional Court Orders and determines that the Honourable Judge Mr. Burhan, should recuse himself from this most Honourable Constitutional Court with respect to the hearing of this petition.
[11] The contention of Mr. Derjacques is essentially based on the well-established principles uniformly adopted virtually in all Commonwealth Jurisdictions and recently reaffirmed by the Seychelles Court of Appeal in the case of James Michel & others v/s Viral Dhanjee ors SCA 5 & 6 of 2012. They are:
[12] The principles of natural justice require that a decision maker should not sit when there is a perceived bias, which need not even be an actual bias. This implies that it is not simply the reality that counts in any decision making process, rather human perception of the reality that counts more than the reality itself.( in italics ours)
[13] A person should not sit in a judgment seat, when public confidence in the administration of justice would be affected if the decision in which he participated was allowed to stand vide Pinochet, wherein the law lords agreed that Lord Hoffmann had sat while disqualified and ordered a fresh hearing.
[14] On the issue of recusal, an objective test should be applied to ascertain whether there exists a reasonable apprehension or suspicion on the part of a fair-minded and informed observer or member of the public that the judge was not impartial in the given facts and circumstances of the case.
[15] According to Mr. Derjacques, the Leaders of the two political parties, which represented 44% support of the electorates in the last Presidential elections, have deponed as to the facts and circumstances leading to anxiety, concern and thinking of the general population on their perception of bias by the impugned judge. Mr. Derjacques contended that the real possibility of bias or the reasonable perceived likelihood of bias does exist, in that the impugned judge may favour the 1st Respondent in adjudicating the issues in return for having been granted Citizenship recently in November 2013 and soon after for having been appointed as a Judge in February 2014 by the President of the Republic of Seychelles, who is the Head of the Government. The impugned judge has thus, been appointed by the 1st Respondent, and whereas the 2nd Respondent is the Legal advisor to the 1stRespondent, and also the deponent in the affidavit filed in support of the impugned judge. According to Mr. Derjacques, the public perception as to apprehended bias by the Judge prevails amongst the informed members of the public, which apprehension is present and real. There is a clear demonstration on record that various litigant-public have already sought the recusal of the impugned judge in matters before the Court evincing the compromised position of the Judge and the consequent public perception about his dubious impartiality. Moreover, it is the contention of Mr. Derjacques that the President and Head of Government, i.e. the 1st Respondent, participated and won the last Presidential elections, and has a real and personal stake in the pronouncement on the Constitutionality of the Act under scrutiny by this Court. Besides, in the last three years, all political parties, the Election Commission and the Public at large have been involved in reviewing the past electoral laws, including the POA, with a view to participate in all future elections, which ought to be free and fair.
[16] It was further submitted by Mr. Derjacques that the Supreme Court of Seychelles presently has the strength of nine sitting Judges from which an informed choice could be made to replace the impugned Judge. No parties will be prejudiced by another Judge being chosen from the remaining six Judges. It is inconceivable and unethical for a judge to lay claim, to having to judge a proceeding where clearly, the parties to the case have rejected his participation due to reasonable apprehension of bias and lack of public confidence. Justice must not only be done but must be seen to be done. For these reasons, Mr. Derjacques urged this Court to order recusal of the impugned judge from hearing the instant petition.
[17] On the other side, Hon. Attorney General representing all Respondents except No.3 vehemently opposed the motion for recusal. He has sworn an affidavit stating his reasons. According to the respondents, the doctrine of judicial recusal is not the discretion or legal right of the parties or litigant concerned. It was submitted that, the general principles for recusal of a judge are as follows:
a. Where the judge has a personal bias or prejudice concerning a party.
b. Where the judge has got a personal knowledge of disputed evidentiary facts of the proceedings.
c. Where he has served as a lawyer or adviser or material witness in the matter in controversy.
d. Where he has any pecuniary interest in the matter.
e. Where he or his relatives has got vested interests in the matter.
f. Where he is a party to the proceedings or an officer or director of a party in the said proceeding.
I would like to rehearse in verbatim, the written submission of the Respondents, which reads as follows:
[18] “The applicants in this petition have raised the ground of impartiality/bias by the impugned Judge due to the reason of his appointment as a Judge by the 1st Respondent in this case,(which) is not legally a valid one, but (a) motivated allegation of bias and based on unfounded reasons. In fact, the apprehension of bias raised by the applicant is only on the ground of self-perceived image of the Judge, due to the fact of conviction and sentence imposed on them and who also have filed another case challenging the appointment of the impugned Judge. The mere expression and apprehension of bias without any valid and justifiable reasons is not enough to seek the relief of recusal of a Judge. According to the respondents the ground (appointment) on which apprehension of bias raised by the applicant is a blanket and irrational apprehension and it is likely to squarely applicable to all the judges serving in this jurisdiction, in future. It is nothing but apparent intervention in the function of judiciary and questioning the judicial integrity of the Judges for no valid reason. Moreover, in the constitutional bench cases the decision/view of a single Judge(member of the bench) is not going to influence the other members of the bench. Since, all the members are having their independent views and decisions on the issue. The motion for recusal of the impugned Judge is not made bonafide but made with the ulterior motive or intent to intimidate the Court or to get rid of an “inconvenient Judge” or to confuse the Court with extraneous motive and information or to cause obstruction or in any other way frustrate or obstruct the course of justice.
[19] It was also submitted that on the issue of bias, the well settled principle is that the test of double reasonableness should be applied. The starting point of the test is on the presumption that the judicial officers are impartial in adjudicating disputes and also they are functioning as judge under an oath of allegiance and that the onus rests on the applicant to rebut the presumption of impartiality. Moreover, it should be established that not only the person apprehending bias be a reasonable person but the apprehension itself must in the circumstances be reasonable, and that mere apprehensiveness on the part of the applicant that the Judge would be biased is not enough. It is well settled principle in all over the world that the test of reasonableness is that whether the fair minded person and informed observer, having considered the facts, would conclude that there was real possibility that the judge is biased” at the same time the “observer,” must be taken to have a balanced approach, neither naïve or complacent nor unduly suspicious or cynical. He must be taken to have reasonable working grasp of how things are usually done. The applicants in this case have not shown themselves to be a bonafide observer. They have not come with clean hands. The applicant did not show any valid reasons or grounds for recusal of the Judge except the reason of his appointment and grant of citizenship. The Judge in question has been discharging his judicial function in this jurisdiction for long time with such merit that the CAA has found him suitable for appointment. Moreover, there is no linkage between his appointment and the issues raised in the main petition. According to the respondents, the reason for recusal adduced by the applicants is untenable one. The mere fact the first respondent is one and the same in two constitutional cases and who is happened to be an executive authority and for that reason there is an apprehension of bias in deciding the issue. Therefore, the mere apprehension of bias is not sufficient to seek recusal of a judge from the bench. The application for recusal is an attempt to interference in the administration of judiciary. This is nothing but making an attempt of forum/judge shopping by way of creating confusion among the members of the bench and pressurizing the judiciary with an ulterior motive to achieve something for their ulterior political/personal gain. The motion made by the applicants for recusal is nothing but abuse of process, which is frivolous and vexatious. Hence, the Honourable Attorney General urged the Court to dismiss the motion for recusal and thus render justice”
[20] We carefully perused the affidavits and the relevant documents adduced by the parties in this matter. We meticulously went through all authorities cited by counsel in support of their respective cases. We also gave diligent thought to the well-researched submissions presented by counsel on both sides in the light of the relevant provisions of law.
[21] First of all, we note that both counsel in their pleadings and submissions used the terms “recusal” and “disqualification” interchangeably. There is a notable difference between these two terms. The term “recusal” is distinguishable from the term “disqualification”. In fact, “Recusal” is the process by which a decision-maker voluntarily removes himself or herself from the judgment-seat, while disqualification is the process by which a party seeks to remove a judge from the case. In many commonwealth jurisdictions, the term ‘recusal’ is used interchangeably with the term ‘disqualification’. Obviously, the former is a species, whereas the latter is the genus.
[22] Having said that, it is not simply a rule of natural justice nor is it a simple legal right of a litigant-public that a decision-maker ought to be impartial and should recuse himself, when he has an actual or perceived bias, for or against a party in any adjudication; but it is indeed, a rule of the supreme law- a Constitutional right – sprouting from the Seychellois Charter of Fundamental Human Rights enshrined in our Constitution. Article 19(1) and (7) of the Constitution of Seychelles has guaranteed equally everyone in this land, a fundamental right to have an independent and impartial decision-maker to sit and adjudicate upon his or her legal rights and obligations in all litigations whatever be the nature of the litigation either civil or criminal. The Seychelles Code of Judicial Conduct also emphasizes the importance of recusal or disqualification, when impartiality of the Judge is reasonably questioned vide Section 2.2.4, which inter alia, reads thus:
[23] “A Judge shall refrain from participating in any proceeding in which the impartiality of the Judge might reasonably be questioned”.
[24] It is truism that the Code of Judicial Conduct cannot legally be enforced on judicial officers. However, it is a paramount moral duty of all judicial officers to voluntarily observe the Code of Conduct by the dictates of their conscience through self-analysis and inner-discipline vide the “Metaphysics of Morals” by the philosopher Immanuel Kant. There is also as much an obligation for any judicial officer not to recuse himself when there is no necessity for him to do so as there is for him to do so when there is.
[25] Indeed, the appearance, as well as the actuality of “independence and impartiality” is critical to the rule of law. Its presence creates confidence not only among the parties but also among the general public; on the contrary, its absence undermines the public confidence in the judicial process. The issues as to recusal will always be one of fact and degree, including the passage of time between the event said to give rise to the appearance of bias and the challenge based on it. Any real doubt should be resolved in favour of the accused or, in civil litigation, of any litigant. At the same time, any fanciful doubt should be resolved in favour of the impugned judge and no litigant or attorney should be allowed to use recusal motions in disguise as a means of judge shopping in our small jurisdiction.
[26] As we see, an impugned judge should be proactive, not reactive to the concern expressed by the litigants, who believe or reasonably suspect that he would be biased. And if he does sit with bias, his decision cannot stand. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough. He should be responsive to self-analysis of all facts and circumstances that may be perceived as potentially, disqualifying features and be astute (though not too astute) to disclose them.
[27] At the same time we note, a mere indication by a party that it wishes a judge to disqualify himself or herself is not of itself a proper ground for the judge to recuse or be disqualified. Obviously, Judges are required to discharge their professional duties unless disqualified by law or lawful order of the competent Court. They should not accede too readily to applications for disqualification; otherwise litigants may succeed in effectively influencing the choice of judge in their own cause. Recusal motions should not be used as strategic devices to “judge shop”. Attorneys may even be sanctioned at times, for frivolous, improper and unsupported motions, if made maliciously to disqualify a judge. These are the quintessence of guidelines we found in many of the authorities cited and the position of case law set by the Courts in the UK and many other Commonwealth Jurisdictions. We approach and analyze the facts and circumstances surrounding the instant case in the light of the said guidelines.
[28] Needless to say, bias may involve actual or apprehended bias. A judge affected by actual bias will not be able to fulfill his Judicial Oath. Therefore, he would be disqualified from sitting. In such a case, the question for determination is whether there is a bias in fact. It involves a question of fact. Decisions about recusal are very much fact-dependent and the approach to be taken in a particular case may vary depending on the factual matrix.
[29] On the other hand, in the case of apprehended bias, the determination as to whether a judge should recuse or disqualify him or herself by reason of apprehended bias involves question of fact and degree. The test is based on an objective estimate of the entire facts and circumstances, which allegedly gave rise to the apprehended bias. The determination of disqualification for apprehended bias is not a judge's introspective estimate of his own ability to hear the case impartially but is what a reasonable person knowing all the relevant facts and circumstances would think about the impartiality of the judge in question. Obviously, the test is an objective one. Having gone through a number of authorities, we find that the relevant test, which is applicable to the case on hand, is well formulated and applied virtually in all Commonwealth Jurisdictions. As rightly submitted by Mr. Derjacques, learned counsel for the petitioner, the Seychelles Court of Appeal has lucidly and succinctly held - vide Michel Vs. Dhanjee supra - thus:
[30] “The test for recusal is objective and it must be applied to determine whether there exists a reasonable apprehension or suspicion on the part of a fair-minded and informed observer or member of the public that the judge will not be impartial”
[31] Coming back to the case on hand, there is no doubt nor is it in dispute that the parties to the instant case or the deponents of the affidavits sworn in support of their respective cases, are fair minded and informed observer or members of the public, let alone the weight and credibility the court might attach to the contents of those affidavits. To our mind, the fundamental questions that now require determination in this matter are only these:
[32] Is the Petitioners’ motion for recusal frivolous or malicious and intended for judge shopping?
[33] Is the petitioners’ claim genuine in respect of their apprehension or suspicion that there is a real danger or likelihood of bias and the impugned judge will not be impartial? and
[34] If so, is their apprehension or suspicion reasonable in the given matrix of facts, having regard to all the circumstances of this particular case?
[35] As regards, the first and the second questions, we find that all three petitioners are not just busybodies. They are Registered Political Parties in Seychelles. They have an important and responsible role to pay in the political arena of Seychelles. They are represented in the instant proceedings by their respective leaders. Particularly, the third petitioner herein is an NGO, an active civil society organization striving to promote the fundamental principles of democracy and good governance in Seychelles. Therefore, it goes without saying that they have substantive interest in promotion and protection of Constitutionalism and ensuring that the laws enacted by the Legislature are consistent with the provisions of the Constitution. All three petitioners therefore, have come before the Constitutional Court with the instant Petition alleging that certain Fundamental rights and other provisions of the Constitution have been contravened and their interest is being affected by such contraventions. Hence, they seek Constitutional remedy for a declaration that those Sections in the Act, which allegedly contravene the Constitution of the Republic of Seychelles, are void. It is trite to say that a person, which includes any company or association or body of persons whether corporate or unincorporate, who claims that a provision of the Charter or any other provision of the Constitution, has a constitutional right to come before this Court for a Constitutional remedy if he has any grievance based on a reasonable cause of action. Equally, as we found supra, in terms of Article 19 (1) and (7) of the Constitution of Seychelles it is their fundamental right to have an independent and impartial decision-maker to sit and adjudicate upon their legal rights and obligations in all litigations, a fortiori in matters of Constitutional importance. The petitioners acknowledged that there was no actual bias on the part of the impugned judge, and no want of integrity or good faith in him. But, they claimed that there was a real likelihood of bias and that that danger is evident in the public perception. On this aspect, we quite agree with the petitioners and endorse the oft-repeated saying of Lord Hewart CJ in R v Sussex Justices, ex parte McCarthy (1924) 1 KB 256 at p259 : “It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
[36] In considering whether there was a real danger or likelihood of bias, we do not look into the mind of the individual judge who sits in a judicial capacity nor into the mind of – a noble brother, who sits with us on this bench. We do not look to see if there is a real danger or likelihood that he would in fact favour one side at the expense of the other. We have no reason to doubt our colleague’s integrity. But, we simply look at the impression which would be given to other people, especially to any informed member of the public, who knows all relevant details as to the facts and circumstances under which he obtained citizenship and the subsequent appointment as a puisne judge; the sequence of events and the proximity including the passage of time between the events said to give rise to the appearance of bias and the challenge now based on those events. Undoubtedly, these apparent factors would give any informed member of the public, the impression that the impugned judge would be biased. Even if he is as impartial as could be, nevertheless if a fair-minded and informed member of the public would think that, in the given circumstances, there is a real danger or even likelihood of bias on his part then, he should not sit. There are circumstances in our considered view, from which a reasonable man would think it likely or probable that the judge would favour one side unfairly at the expense of the other. The Court will not inquire whether he will, in fact, favour one side unfairly. Suffice it that reasonable people might think he will. The reason is plain enough. Justice must be rooted in confidence. The confidence is destroyed when right-minded people go away thinking: “The judge was biased”. That is bad not only for the image of an individual judge but also for that of the institution.
[37] In the light of all the above, we find answers to the first two fundamental questions as follows:
[38] The petitioners’ motion for recusal is neither frivolous nor malicious nor intended for judge shopping and so we hold; and
[39] The petitioners’ claim is genuine as to their apprehension or suspicion that there is a real danger or likelihood of bias in that the impugned judge will not be seen to be impartial and so we hold.
[40] We now, turn to the last question as to the reasonableness of the petitioners’ apprehension on the perceived bias. In determining the issue whether it is reasonable the court has to make an objective assessment of the entire facts and circumstances of the case and consider whether the apprehension is reasonable or not. In considering reasonableness, the duty of the decision-maker is to take into account all relevant circumstances as they exist at the date of the hearing that he must do, in what I venture to call a broad commonsense way as a man of the world, and come to his conclusion giving such weight, as he thinks right to the various factors in the situation. Some factors may have little or no weight; others may be decisive but it is quite wrong for him to exclude from his consideration matters, which he ought to take into account per Lord Green in Cumming Vs. Jansen (1942) 2 All ELR at p656.
[41] The speculative factors such as the alleged ulterior motive, intimidating the Court, getting rid of an “inconvenient Judge”, presumption of impartiality, judge shopping, obstructing the course of justice, abuse of process as canvassed by the Honourable Attorney General in our consideration have little or no weight in the equation; and argument based on speculative and unsubstantiated grounds does not appeal to us in the least. However, other factors such as real danger of bias, public perception, the proximity between acquisition of citizenship and appointment as judge, reasonableness of apprehension are decisive as canvassed by Mr. Derjacques in his submissions; but in considering reasonableness in the instant case we take all relevant factors into consideration and have not excluded from our consideration, matters, which we ought to take into account. The relevant factors in our considered view include the background facts of the main case as well, which were recounted herein before.
[42] Having so done, we find answer to the last fundamental question, in the affirmative as follows:
[43] The petitioners’ apprehension or suspicion is reasonable in the given matrix of facts, having regard to all the circumstances of this particular case.
[44] As far as we remember, since the Constitution of the Third Republic came into force in 1993, this is the first time that the Constitutional Court is invited to determine issues about recusal of a sitting judge on the Constitutional Court, which generally consists of a panel of three judges. As the Constitutional Court had no previous administrative guidelines as to the processes and practice to be followed to determine issues about recusal, we were not in an established position at the beginning, to provide the regulatory guidelines to the bar, for an effective and orderly conduct of the proceedings in this respect. The motion for recusal was first of its kind, the absence of guidelines obviously resulted in uncertainty, miscommunication and surprises between the bar and the bench and even among the judges on the panel.
[45] Hence, we felt that it is the opportune time and occasion that we should pronounce the following “CONSTITUTIONAL COURT RECUSAL GUIDELINES” to regulate the processes and practices to be followed to determine issues about recusal in future. We earnestly solicit the cooperation from the members of the bar in this regard.
[46] 1 Introduction
The Constitutional Court hereby now agrees on administrative guidelines as to the processes to be followed to determine issues about recusal. The procedures described hereunder are intended only as guidance to regulate the recusal issues before the Constitutional Court. Decisions about recusal are very much fact-dependent and the approach to be taken in a particular case may vary depending on the factual matrix and circumstances peculiar to the case under adjudication.
[47] 2 Guidelines on process
After the Chief Justice had allocated panels for given cases in the Constitutional Court, as soon as the Judges come to know of the allocation either by receiving the concerned file or finding their names in the weekly cause-list, Judges can as far as practicable, inform the Chief Justice in advance of the cases on which they should not sit, for conflict reasons, disclosing the relevant facts.
[48] After a Judge has been assigned to a case and seen the actual papers, that Judge may realize that there is some matter warranting his recusal, which he or she did not detect earlier. In such cases, Judges can inform the Chief Justice as soon as possible that they should not continue to sit, for conflict reasons, disclosing the relevant facts. This may be done at any stage of the proceeding but not after the commencement of the hearing of the case.
[49] Where the issue is not clear cut, the concerned Judge should consult, at that point, with other members on the panel and the Chief Justice on the issue of recusal. If, after consultation, the Judge considers the parties should be informed, there should be a formal communication by Minute of the Judge delivered to the Bar through the Registrar.
[50] After a case is listed, objection may be raised for the first time in some form including a request viva voce by a party through its counsel to a given Judge sitting on the panel, indicating the reasons for such concern and request. That objection should be directed in the first instance through the Presiding Judge to the particular Judge. The Judge concerned will consider the matter and in so doing will consult with the other Judges on the panel and the Chief Justice if deemed necessary, as to whether he or she should sit or continue to sit.
[51] If, in either of the cases discussed in (iii) and (iv) above, the Judge does not decide to stand down, the parties should be informed by Minute. If the party maintains the objection, the parties will have the opportunity to file a proper motion supported by an affidavit of facts annexing thereto, other relevant documents including affidavits of other deponents if any, with due notice of motion to all parties to the case. The interested party or parties may file counter affidavits, if any required. This may be followed by brief written submissions by counsel on both sides.
[52] The impugned Judge should be invited, if he or she wishes to do so, or if the panel requests that, to express any opinion, information and observations that Judge wishes to make on the question of recusal, in a memorandum, to be lodged with the panel.
[53] The Judge should include in the memorandum any known circumstances which may give rise to a concern that the Judge may not be impartial in the case. This will be made available to the parties. In such cases, the matter will then be determined either on the papers or at an oral hearing by the panel including the impugned Judge unless the Chief Justice directs otherwise.
[54] The Chief Justice’s decision as to the composition of the panel will depend on matters such as the nature and seriousness of the objection and the circumstances in which it is raised
[55] Late requests or motions either written or oral made at the eleventh hour, on the day of hearing of the Constitutional petition are not considered appropriate. If a recusal issue is raised at this late stage, the allocated panel will deal with the matter then and there. This concludes the “CONSTITUTIONAL COURT RECUSAL GUIDELINES”
[56] Coming back to the case on hand, we would conclude by restating what Lord Bingham stated in Locabail (UK) Ltd v Bay field Properties Ltd [2000] QB 451
[57] “It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger [now possibility] of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge’s social or educational or service or employment background or history, nor that of any member of the judge’s family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers)’
[58] “In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal”
[59] We repeat: Every application for recusal must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger or possibility of bias and the case in which the objection is raised, the weaker the objection will be; and the lesser the said passage of time, the stronger the objection will be, which is the case in the present motion for recusal.
[60] For these reasons, we grant the motion for recusal, order disqualification and direct the Hon. Judge Mohan Niranjit Burhan to recuse himself from hearing the instant petition. For the avoidance of doubt, the Ruling delivered hereof, is not only the Ruling of the majority of the Judges on this bench, but also the Ruling of the Constitutional Court, which would prevail as such for all intents and purposes, since two Judges herein constitute a valid quorum and a full Constitutional Court in this matter. We make no order as to costs.
Signed, dated and delivered at Ile du Port on 8th July 2014.
Acting Chief Justice(Presiding)
D.karunakaran
B. Renaud
Judge of the Supreme Court
