Judge Durai Karunakaran’s case Defence team asks for removal of lawyers |23 May 2017

● CAA explains why it thinks hearing should be suspended

Judge Durai Karunakaran yesterday appeared before the tribunal appointed to inquire into complaints against him, but the hearing has been postponed until this morning at 9am.

This is because Judge Karunakaran’s lawyer, Attorney Philippe Boullé, asked for the removal of judges Mohan Burhan and Samia Govinden from the tribunal.

The session was suspended and a ruling will be delivered this morning followed by the hearing.

Meanwhile,t he newly constituted Constitutional Appointments Authority (CAA) has explained its position for asking for the suspension of the hearing by the tribunal of complaints against Judge Karunakaran.

In a press release issued on Sunday, the CAA writes:

“The CAA accepts that the case of Judge Karunakaran was reviewed by a differently constituted CAA and the Tribunal appointed by that CAA. Technically, the matter is out of the hands of the present CAA.

“However, this CAA, in the course of taking possession of its duties, has realised that there were no rules or procedures set out for determining appointments and considering complaints against Judges, inter alia. Since its appointment, the current CAA had been actively researching procedures in other jurisdictions and drafting rules for its work to ensure that the authority henceforth becomes rules-based in its operation.

“During this exercise, the CAA has considered the Commonwealth Latimer House Principleson the Appointment, Tenure and Removal of Judges (Principles endorsed by Heads of Government including Seychelles, in 2003 in Abuja, Nigeria), among other laws, rules and procedures relating to the consideration of complaints against judges, in depth. This has led it to assess the procedures which its predecessor used in considering the complaints against Judge Karunakaran.

“The CAA has noted that there is nothing in the files left by its predecessor to indicate that there was any consideration of the complaints before the appointment of the Tribunal. It has had to assume that the former CAA did not consider the complaints in depth, but automatically appointed the Tribunal, and that the then President, James Michel, again automatically suspended Judge Karunakaran.

“In doing so, the CAA feels that Judge Karunakaran, who was not given an opportunity to address the CAA, missed out on the opportunity to convince the CAA that the complaints were not fit ones to be referred to the Tribunal, in accordance with established rules in other Commonwealth jurisdictions.

“Further, the CAA is concerned that the presence of two members of the Judiciary on the Tribunal may give rise to unfairness, given that these two members are sitting judges under the administrative authority of the Chief Justice, who lodged the complaints against Judge Karunakaran.

“Given the rules being prepared by the current CAA in the matter, it is clear that any future complaints will be considered to a higher standard than has been afforded Judge Karunakaran. That is cause for concern, as Judge Karunakaran will have been tried on a lower standard.

“The CAA may be required to consider a complaint against another judge in the near future, who will benefit from the new rules being drafted by the CAA, as opposed to Judge Karunakaran whose case is already in progress. The CAA is legitimately concerned that there will necessarily not be a level playing field in the consideration of complaints.

“For the foregoing reasons, the CAA is of the view that, for there to be full transparency in the case of Judge Karunakaran, the process embarked upon should be stopped, and the review of the complaints against him heard afresh under the rules and guidelines adopted by the CAA.

“These were the reasons which prompted the CAA to respectfully request the Tribunal not to proceed to a hearing of the matter. Given that the hearing has not started, there will be little to no harm done. Rather, the process will be greatly improved if it is restarted.

“It is regrettable that the Tribunal has opted to proceed to hear the complaint.”