Daly Bread: The Judiciary’s “how it go look” dilemma

Martin Daly Sunday 9 July 2023 Martin Daly, View Point 1 Comment

In what circumstances should the public become concerned about the appearance of potentially improper influence or access? This is the “how it go look” dilemma and it has been a significant part of the news cycle for the past fortnight.

The dilemma arose first in the form of family connections with state agencies in two cases currently before the courts. Subsequently there was a report in the Trinidad Express newspaper of a suspect-looking sponsorship deal given by a state agency, Tourism Trinidad Limited (TTL), to a promoter of a cruise to Trinidad for this year’s carnival.

A cruise ship brings tourists to the Caribbean.

This week’s column will be the first of two that will examine the background of these events.

In an appeal in which the Management and Business Development Company (EMBD) appeal is a party, it turned out that Justice of Appeal Maria Wilson’s brother was a non-executive director of EMBD at a material time.

In the High Court, in a case which required the court to examine an aspect of the establishment of the Revenue Authority—which is a major policy decision of the Cabinet—Justice Betsy Lambert-Peterson’s dilemma had more twists and turns.

She eventually reconsidered her position and recused herself based on her husband’s golfing relationship with the Prime Minister as well as a number of varied engagements linking her husband with the state.

Those conflicts were resolved by Justice Lambert Peterson, and Justice of Appeal Wilson, recusing themselves from sitting in the Revenue Authority and EMBD cases respectively. While widely praised for their respective recusals, the consequences of their decisions reach further than the cases from which these two judges recused themselves.

One consequence seems to be that Justice Lambert-Peterson will be subject to successful challenges in any case in which the state or a state agency is a party. What of other judges whose family are engaged in fields or activities that intersect with persons active in government or opposition or state agencies?

Does the step taken by Justice of Appeal Wilson mean that familial relationships will now be immediately suspect? Will judges be required to submit to pre-hearing conflict checks?

In previous decisions, the Court of Appeal did not treat recusals on account of family relationships as automatic.

Consider the thinking of the Court of Appeal in two cases decided in 2014.

In one of them, the Court of Appeal permitted a High Court judge, Justice James Aboud, as he then was, to proceed with a case notwithstanding that the judge’s brother was an activist “passionately involved”—in a cause similar to that which the well-known Dr Wayne Kublalsingh and other members of the Highway Reroute Movement (HRM) were challenging on constitutional grounds.

The Court of Appeal stated that the fact that the brother and the brother’s organisation “might have expressed views supportive of the HRM, or taken protest action in support of it, will not persuade the fair-minded and informed observer that there is an appearance of bias on the part of the judge in deciding this case”.

Readers may be surprised at that decision given that the connection of the judge’s brother to a party before the court was of a lively, active character.

In the earlier case in 2014, dealing with a magistrate’s links with a foundation associated with a political party, former Court of Appeal member, Justice Peter Jamadar, (now a member of the Caribbean Court of Justice) stated in the course of the Court’s majority decision:

“Trinidad and Tobago is a small twin island state. In small communities, people meet and interact with a wide cross-section of other people. This is especially so if one is a member of a church, temple or mosque, or of some other charitable organization or NGO, where service to country and community is the primary motive for membership.

“Thus, while it is true that judges and judicial officers must be prudent about whom they choose to associate with, so as not to compromise their independence and impartiality, so also must litigants be not overly suspicious of the capacity of professional judges and judicial officers to hear and determine cases impartially.”