Article 47-Apparent Bias in a Court of Superior Record or a Tribunal – Grounds for asking a Judge to be removed from a Case

Article 47 Apparent Bias in a Court of Superior Record or a Tribunal – Grounds for asking a Judge to be removed from a Case

By: Mr. Martin George

Attorney-at-law 

Martin Anthony George & Co.

_{(Research Assistance provided by}

 _{Darrell Bartholomew, Attorney at Law)}

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Often, in proceedings before a superior court of record such as the Supreme Court of Judicature of Trinidad and Tobago, which consists of the High Court of Justice and the Court of Appeal, circumstances may arise where the issue of whether or not the judicial officer or officers assigned to determine those proceedings should ‘recuse” themselves from the proceedings because of a potential conflict of interest or lack of impartiality. “Recuse’ is the legal term which means that the Judicial Officer should step down from presiding over and deciding the matter. The most common basis for such an Application would be that of  ‘apparent bias’.

In practical terms, upon consideration of the conditions and occurrences of what may be perceived to be a genuine conflict of interest and/or a real lack of impartiality, a judicial officer may decide that they should recuse themselves from the matter.  Doing so, in clear cases, is a very good thing in order to preserve public trust and confidence in the judiciary and the legal system on the whole.

This may be done by a Judicial Officer ex proprio motu such as we saw recently by Justice of Appeal Maria Wilson in the EMBD case before the Court of Appeal.

On the other hand, there are instances where a Judge may consider that there is no “apparent bias” or a real lack of impartiality in their deciding the case and you may instead have, the matter being raised discreetly by one of the parties to the proceedings, who would normally first notify the other side and they may approach the Judge quietly in Chambers and raise their concerns, or they may send a quiet letter to the Judge, copied to the other side, raising the issue. The reason why courtesy and discretion are always required is firstly, as Officers of the Court, all Attorneys are supposed to have that respect for and trust in the “Independence, Integrity and Impartiality” of their Judges and one does not lightly or frivolously raise issues of apparent bias or lack of impartiality in a Judge. This letter format is what occurred in the recent case with Madame Justice Betsy Lambert Peterson where she considered the letter and made it clear, that there was no “apparent bias” or a real lack of impartiality in her deciding the TTRA case.  

In the normal course of things, if the discreet, quiet approach does not convince the Judge, the Attorney then has the option to file such an Application as a formal challenge to the Judicial Officer continuing to hear the matter. In the face of such a challenge, the judicial officer must then hear the Application, hear the evidence and hear from Attorneys on both sides and then come to a decision on whether they will continue to hear the proceedings before them.  Even at this stage, it is possible for a Judicial Officer to reject the claims of apparent bias and to also reject the claims of a lack of impartiality but yet still acede to the Application to recuse themselves, on the basis of seeking to preserve public trust and confidence in the judiciary and the legal system on the whole. This is what happened recently in the case with Madam Justice Betsy Ann Lambert Peterson where, on the formal Application,  she again rejected the claims of a lack of impartiality and the claims of apparent bias, but yet still, at the end of the formal Application, she recused herself, on the basis of seeking to preserve public trust and confidence in the judiciary and the legal system on the whole.

Two interesting points to note -:

1. The system is such that it actually gives the Judge himself/herself, the first opportunity to assess the claims against themselves, of apparent bias or lack of impartiality. This may ordinarily seem as a case of “himself unto himself” however it is a reflection of the implicit respect for and trust which the Legal Profession has, in the “Independence, Integrity and Impartiality” of their Judges, which allows us to trust the Judge to still be fair and impartial in deciding the very issue raised against himself/herself.

2. Should a party who has applied to have a judicial officer recuse themselves from a matter be dissatisfied with the decision made on that issue, in other words, if the Judge rejects their Application and stays on in the matter, they have a right to Appeal such refusal to recuse and this would now go to the Court of Appeal before a different panel of Judges.    

A useful explanation of the meaning of apparent bias was provided by the Court of Appeal in the case of  Basdeo Panday v Senior Superintendent Wellington Virgil Mag. App. No. 75 of 2006, where it was stated that:

“An allegation of apparent bias does not involve a finding of judicial impropriety or misconduct, or breach of the judicial oath. It involves a finding that circumstances exist from which a reasonable and informed observer may conclude that there was bias in the conduct of the proceedings”

In Civil Appeal No. 250 of 2009 Basdeo and Oma Panday v Her Worship Ejenny Espinet and the Director of Public Prosecutions, Her Worship Ejenny Espinet was assigned to hear committal proceedings which involved Mr. and Mrs. Panday. The Pandays, having obtained information that the Magistrate was a Trustee and the Treasurer of a foundation with alleged ties to the People’s National Movement (PNM), applied to the High Court for a review of the Magistrate’s decision to not recuse herself from hearing the committal proceedings against them, particularly in light of Mr. Panday’s history of being a prominent politician aligned with the United National Congress (UNC), the major political opponent of the PNM in Trinidad and Tobago. Both the High Court and the Court of Appeal, in dismissing both the claim and the appeal, concluded that there was no real or perceived political alignment by the Magistrate with the PNM, and that there was little to no possibility that the Magistrate was or would be biased.

As Mendonca J.A. stated in the Panday case, the test for apparent bias is:

“… whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

In matters where the issue of apparent bias is a live one, the Court must thus consider whether a fair-minded and informed observer who has knowledge of and who has considered all of the relevant facts of the matter, would conclude that a real possibility of bias exists. That is why we reiterate the point that one does not lightly or frivolously make allegations to a Judge about apparent bias or lack of impartiality.

1. In High Court proceedings filed in 2023 on behalf of Customs Officer, Terrisa Dhoray, a challenge was made to the State’s decision to substitute the Customs and Excise Division (CED) and the Inland Revenue Division (IRD) with the new Trinidad and Tobago Revenue Authority (TTRA). This matter was assigned to Madam Justice Betsy Lambert-Peterson, the husband of well-known Attorney-at-law and Senior Counsel, Mr. Gilbert Peterson. After dismissing Ms. Dhoray’s application for an injunction against the State, the issue of the Judge’s marriage to Mr. Peterson SC was raised, and it was asserted that Mr. Peterson SC was the friend and golfing partner of the Prime Minister, Dr. Keith Rowley who is the leader of the Government and the Cabinet and the Prime Minister has publicly advocated for the TTRA to be implemented. The Judge staunchly defended her Independence and Impartiality and insisted that her marriage to a prominent SC who was the PM’s golfing partner, did not diminish her ability to meet and treat with and deal with the matters fairly and impartially. Justice Lambert-Peterson eventually agreed to recuse herself, citing the need to preserve public trust and confidence in the Judiciary of Trinidad and Tobago.
2. Again in 2023, in a matter involving TN Ramnauth, Mootilal Ramhit and Sons Contracting Limited, and Kall Company Limited, against the State-owned company, Estate Management and Business Development Company Limited (EMDB), over contracts awarded by EMDB in the lead up to the 2015 general elections, the issue of apparent bias came to the forefront. In a procedural appeal which was before the Court of Appeal, Madam Justice Maria Wilson J.A. of her own volition decided to recuse herself from hearing the procedural appeal, owing to her brother Attorney at Law Fulton Wilson, having served as a Director of EMDB between 2015 and 2021. The Judge, in stepping down, explained that in spite of the fact that she considered herself able to hear the matter and treat with it fairly, the public perception of her brother’s links to the EMDB’s Board of Directors led to her deciding that she should not be involved in the proceedings.
3. CV 2012-03205 Dr. Wayne Kulbalsingh and Ors. v The Attorney General of Trinidad and Tobago  – In 2012, High Court proceedings were filed by the Highway Re-route Movement (HRM), led by Dr. Wayne Kublalsingh, against the State in relation to its construction of the Debe to Mon Desir segment of the Solomon Hochoy Highway Extension Project in South Trinidad. The State’s Attorneys-at-law requested that Mr. Justice James Aboud step down from hearing the matter, as they believed it was similar in nature to proceedings brought by the Judge’s brother, Mr. Gary Aboud, as head of the organisation Fishermen and Friends of the Sea, against the State for seismic testing. After hearing the State’s submissions on its application for him to recuse himself, Mr. Justice Aboud refused to do so, and his decision was subsequently upheld by the Court of Appeal, where the panel indicated that the matters raised by the State did not satisfy the test of apparent bias.

The essential point to remember is that certainly, in an appropriate case, a Judicial Officer ought to recuse themselves from a matter where there is a clear case of apparent bias or lack of impartiality and if your evidence is strong enough and they don’t do it, you can go to the Court of Appeal on the issue. However, in the final analysis, one does not lightly, wantonly or capriciously, seek to have a Judicial Officer recuse themselves from a case on the basis of apparent bias or lack of impartiality, unless you have clear, cogent and compelling evidence.

© 2023 MARTIN ANTHONY GEORGE & CO