For the last four years, the Seychelles judiciary has suffered division and disruption over the behaviour of a senior member of the bench, Durai Karunakaran. Recommended for dismissal by a tribunal that inquired into his behaviour, he resigned in March 2019, forestalling any action against him by the country’s President. But before he left, he had launched an appeal against one of the many court decisions against him. The outcome of newly released decision, likely to be the last in a very long series of cases under his name, is however not completely clear.
Read the judgments
Separate decisions are a rarity in the Seychelles Court of Appeal. But four separate judgments? – Unheard of. It is perhaps an indication of just how controversial and sensitive has been the issue of former senior judge, Durai Karunakaran. And how complicated and sensitive has been the series of legal challenges involved in considering whether he should be impeached.
Karunakaran was a long-standing member of the Seychelles judiciary, and at one stage acted as Chief Justice pending the appointment of a permanent CJ. However, he took exception to the appointment of a woman to the post and made a number of inappropriate remarks to this effect. He also refused for some time after her appointment to vacate the chambers of the CJ. His behaviour towards the CJ continued to be problematic, including threats made to her in her chambers, and ultimately she complained to the Constitutional Appointments Authority (CAA) about the situation.
In the wake of her complaint, the Seychelles bench was sorely tested: Karunakaran in turn made complaints against the CJ. These were also referred to a tribunal. He further brought a number of court applications testing the actions of the CAA and then challenged the decision of the Constitutional Court among others, in relation to his matters.
The tribunal that heard the complaint against Karunakaran found he had indeed acted as the CJ claimed, and that he should be removed from office.
On the other hand, the second tribunal hearing his counter-complaint against the CJ found she had done nothing wrong. It was also scathing in its comments about Karunakaran’s behaviour.
Then, in March this year, Karunakaran resigned. He gave no reasons and his resignation came before the country’s President acted on the tribunal’s recommendation that he be dismissed.
But some time before he quit, Karunakaran filed an appeal against the finding of the constitutional court against him in a related case. What should happen to that pending appeal now that he had quit the bench?
Five judges of the Seychelles Court of Appeal decided this question. If they found the case should continue, they would have to consider Karunakaran’s challenge to the Constitutional Court’s decision.
Counsel for Karunakaran said the former judge wanted the case to go ahead because it affected his dignity and reputation. The court, however, said that this issue – the impact on his reputation – had not been pleaded, and so it could not be taken into consideration. Nevertheless, the appeal should be heard. It was ‘the first impeachment process of its kind in Seychelles’ and the opportunity should be used to resolve the difficult and sensitive issues involved so that the correct procedure would be clearer in the future.
But even after reading all four judgments, the final outcome is not really clear. In their joint decision, judges Fiona Robinson and Ellen Carolus would have upheld the appeal, finding that the CAA should have handled matters differently before the issue was referred to a tribunal. Judge Bernadin Renaud would have dismissed the appeal, as would the presiding judge Francis MacGregor.
The remaining, swing decision, by Judge R Govinden, begins by saying he did not agree with the MacGregor and Renaud decisions ‘in dismissing the grounds of appeal’ and later says the CAA was obliged to have ‘heard’ Karunakaran before deciding whether to refer the question to a tribunal.
As the CAA had not done so its decision was thus null and void. But he then adds a paragraph saying that the tribunal had indeed been appointed and had fully investigated and heard all the parties. Karunakaran had been given a full opportunity to be heard, so his fair hearing rights were observed. The tribunal used a higher standard of proof than the CAA would have done had it considered the matter in the way that Judge Govinden thought was constitutionally proper.
He concluded that the CAA would have come to the same decision as the tribunal had done, and thus ‘any irregularities have been cured by the subsequent findings of the tribunal’.
No costs order was made either way.
It seems to me that either side could claim victory. But despite my sense that this result is strangely inconclusive, a few things emerged from the various decisions that are significant.
The original CAA seized with the CJ’s complaint against Karunakaran included no member with a legal background. They felt unable to make legal decisions. That has changed with the appointment of a new body, said to consist of people who would be able to consider questions that involved the law.
Judge Renaud added that, in considering another matter, the newly-constituted CAA had followed the procedures recommended by the Latimer House agreement and the Bangalore Principles of Judicial Conduct and had explained this in the media. In the opinion of Judge Renaud, the CAA should ‘formally publish’ in the media the procedures they would use in such a case in the future. This would make sure that everyone understood the process and would add to the security of tenure of judges.
- Newsletter, Judicial Institute for Africa (Jifa), 1 August 2019