Public Service Tribunal chair should recuse self from case involving niece, AG’s Chambers maintains

Prithima Kissoon

The Attorney General’s Chambers has taken issue with the apparent failure by Chairman of the Public Service Appellate Tribunal Justice (retired) Nandram Kissoon to recuse himself from hearing a matter involving his niece, former Deputy Solicitor General Prithima Kissoon.

The Attorney General’s Chambers has said that despite two objections made by counsel representing the Chambers, Justice Kissoon proceeded to hear the application on April 4th, during which he asked the State to file an affidavit in answer.

“To date the Chairman has not recused himself in the good administration of justice and has instead requested that Counsel make submissions in writing to the Tribunal consisting of himself to hear and determine this issue. It was unfortunate neither the Appellant nor her Attorney, Mr. Nigel Hughes, a Senior Officer of the Court raised the issue of bias or supported the application by the Attorney General’s Chambers”, the Chambers said in a statement issued on Monday.

Nandram Kissoon

In a press release, dated April 5th, 2018, the Chambers informed that Kissoon’s application, which alleges wrongful termination in breach of her right to a fair hearing and rules of natural justice, was heard by the tribunal.

It stated that adapting the old adage “not only must Justice be done but it must manifestly and undoubtedly be seen to be done,” State Counsel Oneka Archer-Caulder and Judy Stuart-Adonis made an application that the Chairman Justice Kissoon, the uncle of the Appellant, recuse himself on the grounds of potential bias. “Mr. Kissoon who acknowledged that he is indeed the uncle of the Appellant nonetheless insisted the State file an affidavit in answer with submissions addressing the issue of bias,” the Chambers said.

It pointed out that “it is worth noting” that Kissoon filed proceedings in October, 2017, in the High Court for the “identical reliefs as those in which she is currently seeking before the Appellate Tribunal.”

The release added that premised on this fact, Archer-Caulder expressed her concern to the Tribunal that appears that the Appellant, who was represented by Hughes, may be “forum shopping”.

Two days, later Hughes sent out a press release contending that the Chambers’ information which was disseminated to the media was not accurate.

“The Attorney General’s Chambers in its own deliberate judgement issued a press release in an ongoing matter… It is unfortunate that in its press release it escaped the attention of the Chambers of the Attorney General that fidelity and accuracy were integral to the administration of justice even in the promotion of the efforts of chambers,” Hughes said.

Giving his version of what transpired during the hearing, he said that Justice Kissoon first announced that the appellant was his niece, raised the issue of possible bias and invited counsel from both sides to assist the tribunal by way of written submissions on this issue.

“The chairman in his invitation referred counsel to the Pinochet decision as one of the several authorities on this issue. It was after this invitation that Counsel for the Attorney General indicated that they had intended to raise the issue. Counsel for the Attorney General thereafter requested permission to make additional submissions on the issue of abuse of process. The tribunal thereafter invited counsel from both sides to assist the court by providing written submissions including references to case law and academic material,” Hughes wrote.

True facts

The Chambers in response accused Hughes of deliberately misrepresenting the “true facts” of the proceedings.

In a release, dated April 9th, 2018, it was stated that the tribunal’s Chairman did inform that he was the uncle of the Appellant and enquired whether there was any objection from the parties.

“The Counsel on behalf of the Attorney General’s Chambers immediately stood and raised her objection on the ground of bias. She then requested that the Chairman should immediately recuse himself from the instant matter given his family relationship to the Appellant.

“The Chairman did not recuse himself or rule on the preliminary objection of bias but proceeded to sit on the tribunal to hear and determine other matters relating to the Appellant. At this point the Counsel, who represented the Attorney General’s chambers, raised a second objection in respect to the Chairman, the uncle of the Appellant hearing and deliberating on issues in relation to the appeal of the Appellant, his niece and cited several authorities in relation to bias. The Chairman then responded “that he knows all the authorities starting with Pinochet,” the release said.

It further added that once again no ruling was made on the issue of bias and the request made for the judge to recuse himself.

“Even more alarming, Mr. Hughes’ statement to the press failed to address the core issue which was raised before the tribunal, that of patent obvious bias before the Tribunal, but noted the apparent personal attack on the professionalism and integrity of the Attorney General’s Chambers,” it said.

The Attorney General’s Chambers noted the “exemplary conduct” of a number of Senior Judges of the High Court who recently recused themselves from hearing a matter involving Banks DIH because they hold shares in Banks DIH limited and reassigned the matter. “It is apposite to note that those Senior Judges noted the objection and did not continue to deliberate on the issue nor order the parties to make written submissions on the issue,” the release said, before adding that Counsel for the Attorney General’s Chambers will repeat and rely on their objections on the adjourned date, April 24th, in respect to the Chairman sitting and hearing the appeal of his niece.

In a letter carried in this newspaper last October, Kissoon revealed that she was dismissed on August 31st, six hours before the life of the Public Service Commission (PSC) term expired. She has argued that she did not have a hearing before the PSC and that her complaint against Williams for alleged harassment and verbal abuse had not been addressed.

In her letter, Kissoon stated that Williams “had visited harassment and verbal abuse” upon her, and prohibited her from effectively performing her duties, “all in an effort to oust me from my post as the Deputy Solicitor General, whether by lawful or unlawful means….”

Deferred

She related that she registered her complaint in January to the PSC in relation to the aforementioned issue but had received no assistance.

In February, she was granted her deferred vacation leave from November, 2016, and applied to the Permanent Secretary of the Ministry of Legal Affairs to spend her leave outside of Guyana but received no response.

However, she said that in March, the PSC would inform her that she was to proceed on administrative leave, pending investigations into several court matters conducted by her. She stated that she was not given a time limit, nor were there any conditions attached to the leave. But she did note that she was told that if she intended to leave the country, she should communicate in writing to the commission how she could be contacted, which she did. Her going on leave out of the country was one of the grounds upon which the PSC based its decision to dismiss her.

In May, she stated that the Permanent Secretary of the Ministry of Legal Affairs, which she noted had no legal authority over her at that point as her matter was now before the PSC, wrote stating that her salary would be withheld with immediate effect as she had been in breach of the PSC rules by leaving the country without the permission of the PS of the ministry.

In August, the PSC set up a commission of inquiry to investigate the circumstances under which she left the jurisdiction. Kissoon argued that the PSC had no such powers. Given the absence of her attorney, she did not participate in the hearing and therefore no evidence was taken from her.

The AG’s Chambers in a response to Kissoon’s claims revealed that a complaint had been lodged with the PSC about her alleged derelict approach to her duties and to date it had not been investigated.

“Ms. Kissoon was aware that her matters, which involved hundreds of millions of dollars, and were of grave importance to the State were being heard in the court at the time she requested leave as the court was not in recess. Although Ms. Kissoon was aware that her leave had to be deferred because of the state of affairs, she absented herself from duty and presented a medical certificate thereafter,” the Chambers said.

“As a result of her dereliction of duties and gross infidelity to the State a complaint was made to the Public Service Commission on the Ministry’s behalf. This matter has not been heard by the PSC to date, much to the disappointment of the Chambers and the Ministry. It is the hope that there will be a hearing and the full ventilation of these issues when the Public Service Commission reconvenes,” the statement added.

The AG’s Chambers has said that Kissoon’s letter to the media was deceptive and argued that she approached her duties with “gross irresponsibility” and a “lack of professionalism.”