Thursday, February 16, 2012


I have been looking on with interest and not little amazement as to the confusion (and 'confusion' has to be the correct word) surrounding the latest imbroglio to hit the Integrity Commission ('IC'), what with newspaper offices being raided, the predictable howl from the Media, the suspension of a Commissioner (Mrs. Gafoor) by the President and the appointment of a tribunal to investigate Mrs. Gafoor's conduct in refusing to recuse herself from the IC tribunal that is investigating former Attorney General John Jeremie.

The facts as have been reported seem to be these:
(1) Former Attorney General John Jeremie was/is being investigated by the IC
on a matter involving his alleged participation in the infamous 'land deal' with
former Chief Magistrate Sherman McNichols and the prosecution of former
Chief Justice Sat Sharma;
(2) For reasons that are not entirely clear, Mr. Jeremie had objected while he was
Attorney General to the appointment of Mrs. Gafoor to the IC.
(3) Mr. Jeremie, when the IC began to investigate him, objected to Mrs. Gafoor
sitting on the tribunal on the grounds that she might be biased against him as
he had previously objected to her appointment.
(4) The current Chairman of the IC, Mr. Ken Gordon, on the strength of Mr.
Jeremie's complaint only, asked Mrs. Gafoor to recuse herself in the matter,
a request which Mrs. Gafoor, a lawyer, refused.
(5) Certain matters that were discussed in IC deliberations were leaked to the press
in the person of Mr. Andre Bagoo, a reporter for Newsday.
(6) The IC asked the police to investigate the matter and find out who leaked the
information and the police did so with raids on Newsday's offices and the home
of the reporter.
(7) The President, at the fairly obvious urging of the IC,
suspended Mrs. Gafoor and appointed a tribunal headed by former Chief Justice
Michael delaBastide to investigate Mrs. Gafoor's behaviour and whether she
had/has done anything wrong.

And that is all that is in the public domain.

It would be foolish to comment on the rights or wrongs of the matter unless and until all of the facts are in. However, it might help our understanding a little if we went back to basics. A judge (or any person who is sitting on a matter in a judicial or quasi-judicial capacity) is disqualified from sitting where he (or she) has a personal or pecuniary interest. As to whether or not Mrs. Gafoor might appear to be biased against Mr. Jeremie because he had once objected to her appointment to the IC is the type of argument that lawyers love for it is not necessarily as clear cut as might first appear on the surface. A judge in the House of Lords once said in a famous case
"My Lords, I wish that the use of the word 'bias' should be confined to is proper sphere.
Its proper significance, in my opinion, is to denote a departure from the standard of
even-handed justice which the law requires from those who occupy judicial office, or
those who are commonly regarded as holding a quasi-judicial office, such as an

Bottom line: what does all this mean? It means that without looking at or seeing or hearing all the details it is not possible for any of us in the public to say whether or not Mrs. Gafoor was right not to recuse herself or that Mr. Gordon was wrong to ask her to step down. Put another way, the matter is not as simple as all that and there is a lot of law on the subject of bias and perceived bias.

What I think that the IC should have done is that all of the Commissioners (Mrs. Gafoor included) should have gone to a Senior Counsel (a person like Russel Martineau comes to mind) who has a (well deserved) reputation of giving good and impartial advice as to whether or not the claim of bias by Mr. Jeremie could be substantiated. Assuming (though definitely not accepting) that the advice came back that Mrs. Gafoor was right in her assertion that she should not step down and that the allegation could not be sustained in law, then everybody would have been protected. On the other hand, if the advice came down the other way, it is hard to see that such an experienced jurist as Mrs. Gafoor is, would not step down. A lot of unnecessary pain could have been avoided if the IC had done this. Perhaps this makes the case for the Chairman of the IC to have a legal background?

Then now, we have the matter of press freedom. It is important to understand in discussing this aspect of this multi-faceted imbroglio that the only profession that enjoys absolute privilege as regards confidentiality is the legal profession. There is no law and no right of the press (or even a priest for that matter) to keep sources and/or information secret or confidential. The truth is that in other democracies priests have been jailed for refusing to disclose matters heard in the confessional and journalists have also been fined and jailed for refusing to disclose their sources. In other words, there is no right of the press to keep sources confidential and any action taken against the press in this regard is not necessarily an attack on press freedom.

I am not saying that this present case is not an attack on the press ... neither am I saying that it is. What I am trying to do is to strip away all of the hype ... from both sides ... and to present the facts and the law as simply as possible so that we can all understand it and understand exactly what happened and what the arguments are. Unfortunately, in this Trini Wonderland world in which we live all too often we don't see the woods for the trees. Because we don't analyse things carefully, we tend all too often to get it wrong. But then, blinding emotion has never been convinced by cool, calm and clear logic. And we Trinis are nothing if not emotional!!

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