By majority decision, PSAT Chairman won’t recuse self from Prithima Kissoon case

Nandram Kissoon

Following a majority decision, the three-member Public Service Appellate Tribunal (PSAT) yesterday ruled that its Chairman, Justice (retired) Nandram Kissoon will continue to hear a matter involving his niece, former Deputy Solicitor General Prithima Kissoon.

Justice Kissoon and member Winston Browne disagreed with the claim of bias made and thereby ruled that the Chairman should continue to sit in the matter. However, the other member Attorney-at-law Abiola Wong-Inniss disagreed, ruling in favour of him recusing himself from the matter.

Kissoon is challenging the decision made by the Public Service Commission (PSC) to dismiss her on August 31, 2017.  Following the commencement of the matter, a claim of bias due to the close relationship between the Chairman and the appellant was made to the tribunal. Kissoon’s father is the Chairman’s brother.

Kissoon appeared yesterday in her own capacity as her lawyer Nigel Hughes was at the Trinidad- based Caribbean Court of Justice (CCJ) while State counsel Judy Stuart-Adonis was present for the respondents – the PSC; the Permanent Secretary, Ministry of Legal Affairs, the Attorney General of Guyana and Emil McGarrell, Permanent Secretary of the Ministry of Communities.

In giving their respective rulings, case law and various factors were citing during a two-hour- long hearing. The Tribunal sits in the building next door to the Ministry of Communities’ Department of Housing on Brickdam and all hearings are open to the public.

The Chairman who was first to speak, said in his preamble that Kissoon filed her appeal on November 28th, 2017 and at the commencement of the hearing on April 4th, 2018 he announced that he was related to her and inquired whether any of the parties had any objection to him sitting in the matter.

He said that attorney Oneka Archer-Caulder who is on record for the respondents objected to the Chairman sitting to hear the matter on the ground of bias as a result of the relationship  and she noted that she had intended to raise an objection prior to the announcement.

The Bench then requested authorities in writing supporting the contention of bias. However none was forthcoming, the Chairman who was reading from his written ruling, said.

He noted that the attorney informed that the appellant was seeking judicial review of the same orders being sought before the Tribunal and that the appeal amounted to an abuse of process.

Wong-Inniss subsequently informed that it was Marvalyn Stephen in an Affidavit in Answer sworn to on April 23rd, 2018 and filed on behalf of the respondents, who outlined the reasons for the request being made for the Chairman to recuse himself from the case.

After quoting a number of cases which dealt with the rule against bias and the principles of natural justice concerned with procedural fairness, the Chairman said that it is presumed that he will be faithful to his oath to discharge the duties of his office with impartiality and in accordance with the constitution and the tribunal’s act.

“The onus of rebutting such a presumption of bias lies with the respondents. A mere suspicion of bias as a result of the relationship between the Chairman and the Appellant should not suffice”, he said while noting that that he is qualified for the Chairmanship position having held the post of a former judge and having extensive training and experience. “It must be presumed that he (the Chairman) is capable of disabusing his mind of any irrelevant personal beliefs or pre-dispositions and carry out his oath of office”, he said.

He noted that among the things that need to be taken into consideration in the hearing and determination of the appeal is that all appeals must be heard by the full bench; the decision of the majority of the members shall be the decision of the Tribunal; the life of the Tribunal is terminated within three years; there is no other Tribunal empowered to hear and determine appeals from the PSC and that on recusal the hearing of the appeal will be delayed beyond 2020.

The Chairman questioned whether his relationship to Kissoon is enough for him to recuse himself while noting that they share no “social relationship”.

Validly decided

He said that by virtue of Section 19(2) of the Act, no appeal shall be deemed to be validly decided by the Tribunal unless it consists of the three members.

“There cannot be a properly constituted Tribunal without its Chairman and hence his participation in the decision making cannot be excused. Should the conclusion be that a fair-minded and informed observer would conclude that there is a real possibility of bias by the Chairman, the doctrine of necessity will require the full Bench including the Chairman to hear and determine the appeal”, he said before refusing the application for him to recuse himself.

Browne supported some of the points made by the Chairman and used the opportunity to give a perspective on issues which he felt were not sufficiently ventilated and later said that he did not support the application that the Chairman should recuse himself from the case.  He made it clear that his ruling which he read out was made on his own accord without interference from anyone.

“With reference of mind, moral and legal reinforcement of the other two members of the tribunal, there is no way that the Chairman can get a free pass to impose his will in dissonance with logical reasoning of the other members as it may border on bias; the other members are not inert fixtures to the process and would ensure that the Chairman does not operate like a loose cannon on deck”, he said while noting that the entire Tribunal is duty-bound to examine itself for likely presence of bias.

Wong-Inniss made it clear from the onset that she did not agree with the other two members. “I had the opportunity to review a draft ruling that was prepared by the Chairman and the other member of the tribunal, but I was not in agreement with certain material aspects of the said ruling”, she said.

After looking at the law in the context of objection to bias, she said that based on a review of the authorities she had cited it is clear that quite often there is little or no evidence to support an allegation of apparent bias.

She reminded that the Chairman spoke about his relationship with Kissoon on the second calling of the matter but there was no response to two statements made.

After making reference to a number of cases to support her arguments, Wong-Inniss pointed out that the primary issue in the substantive matter for consideration is whether Kissoon was wrongfully dismissed. She said that notwithstanding the appellant’s statutory right of appeal, it cannot be said that there is no other competent authority to deal with this issue as the process of the Supreme Court has been invoked to address the very issue in the actions referred to in the submissions made by Kissoon.

“…therefore, one of the primary considerations for invoking the exception is displaced as the Appellant would not be without another competent forum to adjudicate the issue…I find that the Chairman ought to recuse himself…”, she said.

After all three rulings were read, the Chairman announced that given the majority decision (2 to 1), the hearing will have to go on.

After consulting with both sides, commitments were made by Stuart-Adonis to file her Affidavit in Answer while Kissoon asked for 14 days thereafter to file an Affidavit in Reply. The hearing continues on August 17 at 10 am.

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