Ani­ka Gumbs-San­di­ford

Pres­i­dent George Maxwell Richards is set to in­ter­vene in the im­passe at the In­tegri­ty Com­mis­sion as ten­sion be­tween new­ly ap­point­ed chair­man Ken Gor­don and deputy chair­man Gladys Gafoor has cli­maxed. Over the last 48 hours, the brew­ing war height­ened lead­ing to a pre-ac­tion pro­to­col let­ter be­ing served to the com­mis­sion's reg­is­trar Mar­tin Far­rell, giv­ing the com­mis­sion 14 days to re­scind the de­ci­sion re­quest­ing Gafoor to re­cuse her­self from a land deal mat­ter in­volv­ing for­mer at­tor­ney gen­er­al, John Je­re­mie or re­dress would be sought via ju­di­cial re­view. It was by let­ter dat­ed De­cem­ber 31, 2011, Gafoor wrote to the Pres­i­dent seek­ing his in­ter­ven­tion in en­sur­ing that the mat­ter was am­i­ca­bly re­solved.

The lat­est de­vel­op­ment fol­lowed one day af­ter Gafoor learnt she was be­ing in­ves­ti­gat­ed by the An­ti Cor­rup­tion In­ves­ti­ga­tions Bu­reau (ACIB) in re­la­tion to breach of Sec­tion 33 of the In­tegri­ty in Pub­lic Life Act. A copy of the of­fi­cial po­lice doc­u­ment ob­tained by Sun­day Guardian ques­tions whether Gafoor was re­spon­si­ble for pro­vid­ing a dai­ly news­pa­per with in­for­ma­tion re­lat­ing to the is­sue. Both Gafoor and com­mis­sion mem­ber Se­u­nar­ine Jokhoo were asked to re­cuse them­selves from the mat­ter af­ter Je­re­mie wrote to the com­mis­sion on No­vem­ber 17, and De­cem­ber 6, 2011, mak­ing the re­quest. Sun­day Guardian un­der­stands that by vote Prof Ann Marie-Bisses­sar, Neil Rol­ing­son and Gor­don agreed that both Gafoor and Jokhoo should re­cuse them­selves from the mat­ter.

Jookhoo ac­ced­ed to the re­quest, how­ev­er Gafoor has re­fused to budge and is ques­tion­ing the grounds for her re­cusal. De­spite Gafoor's ob­jec­tion to re­cuse her­self from the mat­ter, in a strange twist-by let­ter dat­ed De­cem­ber 21-Far­rell in­formed Je­re­mie that both com­mis­sion­ers would not be de­lib­er­at­ing on his mat­ter. The for­mer at­tor­ney gen­er­al was al­so in­formed that his in­ves­ti­ga­tion would be con­clud­ed on or be­fore Feb­ru­ary 17. The de­vel­op­ments have once again caused the com­mis­sion to be­come em­broiled in con­tro­ver­sy that may lead to a le­gal bat­tle.

Cit­ing grounds for un­fair treat­ment, Gafoor, through her at­tor­ney Christlyn Moore, stat­ed that no ob­jec­tion was raised against her since the com­plaint was lodged at the com­mis­sion 20 months ago. The is­sue of Gafoor's re­cusal was first raised on De­cem­ber 12, and a de­ci­sion was tak­en for a le­gal opin­ion to be sought on the mat­ter.

Gor­don votes against Gafoor

Whether the le­gal opin­ion was sought re­mains un­known. Fur­ther cit­ing grounds for un­rea­son­able treat­ment, the let­ter stat­ed: "With­out con­sid­er­ing the mer­its of the ob­jec­tion to my client be­ing part of the de­lib­er­a­tions to be con­duct­ed in­to the com­plaint, my client was asked by the chair­man both pri­vate­ly and at the sub­se­quent meet­ing to with­draw up­on a vote be­ing tak­en. My client re­fused to so with­draw on the ex­pressed ba­sis to the chair­man and oth­er com­mis­sion­ers both be­fore and af­ter the vote that this is­sue could not be de­ter­mined in this fash­ion, and that it was at all ma­te­r­i­al times for the per­son against whom rep­re­sen­ta­tions were be­ing made to con­sid­er as a mat­ter of law whether there was any re­al ba­sis for the ob­jec­tion."

Gor­don, the let­ter re­vealed, did not ac­cede to the re­quest and in­sist­ed that the mat­ter could be vot­ed up­on by way of res­o­lu­tion. On both oc­ca­sions Gor­don made the cast­ing vote against Gafoor. Gafoor: I will not sac­ri­fice my in­tegri­ty. Ques­tion­ing who in­struct­ed the reg­is­trar to in­form Je­re­mie that both com­mis­sion­ers had opt­ed to re­cuse them­selves from the mat­ter, the let­ter fur­ther stat­ed that on De­cem­ber 31, Gafoor re­quest­ed that the res­o­lu­tion passed should be va­cat­ed. Con­tend­ing that there are two sep­a­rate mat­ters up­on which the deputy chair­man has con­sis­tent­ly and at all ma­te­r­i­al times main­tained her ob­jec­tion to the re­quest for her re­cusal, Gafoor out­lined the fol­low­ing:

• The mat­ter of her re­cusal could not be sim­ply vot­ed up­on by the com­mis­sion as a whole

• The mer­its of the in­ves­ti­gat­ed per­sons ob­jec­tion to her par­tic­i­pat­ing in the com­mis­sion's de­lib­er­a­tions have not been or prop­er­ly dis­cussed by the com­mis­sion

Deem­ing the move as "un­law­ful", the let­ter fur­ther stat­ed: "It is clear that the pro­ce­dure and prac­tice adopt­ed by the sit­ting chair­man on the above is­sues fails to sat­is­fy the pre­ced­ing re­quire­ments as it is taint­ed by a lack of con­sid­er­a­tion of the mer­its of the ob­jec­tion to the pres­ence of my client re­gard­ing the com­mis­sion's de­lib­er­a­tions in re­spect of the afore­men­tioned mat­ter, un­law­ful and ar­rived at by tak­ing in­to ac­count mat­ters ir­rel­e­vant to a fair and prop­er de­ter­mi­na­tion of ei­ther the is­sue of re­cusal as well as the mer­its of the ob­jec­tion to my client." In­sist­ing that all at­tempts were made to re­solve the mat­ter, Gafoor, through her at­tor­ney, stat­ed that she is not pre­pared to sac­ri­fice her in­tegri­ty and oath of of­fice in or­der to go along with an ap­proach that is flawed that may lead to the pos­si­bil­i­ty of pub­lic ridicule.

Lawyer: Pres has the pow­er to act

Com­ment­ing on the de­vel­op­ment yes­ter­day, a se­nior le­gal lu­mi­nary said the Pres­i­dent has the ex­clu­sive pow­er to ap­point and if it be­comes nec­es­sary to re­move com­mis­sion­ers on the grounds of mis­be­hav­iour in pub­lic of­fice. The le­gal source said: "The Pres­i­dent has the pow­er to en­sure that a com­mis­sion­er is giv­en by the com­mis­sion the pro­tec­tion of the rules of nat­ur­al jus­tice. What this means is if you are ask­ing a com­mis­sion­er to re­cuse him­self from a mat­ter they must be giv­en a rea­son be­cause the com­mis­sion­er like the chair­man is en­ti­tled to par­tic­i­pate in pro­ceed­ings be­fore the com­mis­sion. The chair­man does not have the pow­er to pre­vent com­mis­sion­ers from par­tic­i­pat­ing in pro­ceed­ings un­less it is es­tab­lished and the com­mis­sion­er agrees that there is a pos­si­ble con­flict of in­ter­est."

As a mat­ter of law, the le­gal source added, the chair­man is bound and con­strained by the Con­sti­tu­tion and the law which im­pos­es a fet­ter on the ex­er­cise on his pow­ers which does not al­low him the au­thor­i­ty to pre­vent a mem­ber from ex­er­cis­ing his/her right to par­tic­i­pate in de­lib­er­at­ing on pro­ceed­ings be­fore the com­mis­sion.

Gor­don: I did not get pre-ac­tion pro­to­col let­ter

When con­tact­ed yes­ter­day, Gor­don said he had not yet re­ceived the pre-ac­tion pro­to­col let­ter but sug­gest­ed it may be in the pos­ses­sion of the reg­is­trar due to the week­end. On the is­sue of the po­lice in­ves­ti­ga­tion sur­round­ing the 'leak­ing' of in­for­ma­tion to a dai­ly news­pa­per, Gor­don said: "The mat­ter was re­port­ed to the po­lice but I am not aware how they are treat­ing with the mat­ter." At­tempts to reach Gafoor proved fu­tile.

FLASH­BACK

The for­mer at­tor­ney gen­er­al is be­ing in­ves­ti­gat­ed for his al­leged in­volve­ment in the re­pur­chas­ing of land from for­mer Chief Mag­is­trate Sher­man Mc Nicolls. The com­plaint was filed by de­ceased pres­i­dent of the Crim­i­nal Bar As­so­ci­a­tion Desmond Al­lum, SC. Al­lum had writ­ten to the then di­rec­tor of pub­lic pros­e­cu­tions Ge­of­frey Hen­der­son, call­ing on him to con­duct an in­ves­ti­ga­tion in­to whether Je­re­mie at­tempt­ed to per­vert the course of pub­lic jus­tice or mis­be­haved in pub­lic of­fice aris­ing out of his re­port­ed in­volve­ment in the re-pur­chase of land at Mil­len­ni­um Park owned by Chief Mag­is­trate Sher­man Mc Nicolls.

The land trans­ac­tion was one of the key is­sues which sur­round­ed com­plaints against for­mer Chief Jus­tice Sat­nar­ine Shar­ma and at­tempts to im­peach him over al­le­ga­tions that he tried to in­ter­fere in crim­i­nal pro­ceed­ings against Prof Vi­jay Naranys­ingh and for­mer prime min­is­ter Bas­deo Pan­day.