Inappropriate recusals of Judges have potential to be damaging

Outside of implied biases

– Ramkarran

Former Speaker of the House, Senior Counsel Ralph Ramkarran has weighed in on the subject of Judges and recusals, a topical issue since the recusal of Justice Franklin Holder from a High Court case after requests for an apology from Attorney General Basil Williams were refused.

In his latest “Conversation Tree” blog post, Ramkarran cited the postulations of internationally known legal experts to make the case that Judges should be careful about recusing themselves from a case because of implied biases. These experts also posited that Judges should not give in to attempts to drive them from their

own courtrooms because of assertions of bias.

Ramkarran, a former People’s Progressive Party (PPP) stalwart, cited notable Professor of Law, Abimbola Olowofoyeku, who had posited in 2016 that inappropriate recusals have the potential to be very damaging.

“The main basis for recusals by Judges, or other adjudicators, including Magistrates, is actual or potential bias or the appearance thereof. It is in the Judge’s discretion to do so,” Ramkarran stated.

He acknowledged that there have been decisions outside Guyana which suggest that when acting Judges hear matters where the Government is a party, there is a potential for bias.

He said this was “because the Judge or Judges rely on the Government or a member of it, such as the Head (of State), for confirmation of their appointment. Where the Chancellor and Chief Justice continue to hold acting appointments, it is

inevitable that an enterprising lawyer will make an objection in a case in which the Government is a party.”

Citing the case of Chile’s former Head of State, General Augusto Pinochet, Ramkarran observed that during his hearing there was an allegation of potential bias in relation to one of the Judges. It was argued that because of the Judge’s wife’s position with Amnesty International, a party to the case, he should recuse himself.

“Professor Olowofoyeku suggested that recusal is inappropriate on such grounds as appeasement of a party, allegations by a party, personal attacks against the adjudicator, intellectual difficulty with a matter, pragmatism or avoiding a conundrum unrelated to bias.”

“Some principles to be considered are: objectively justifiable grounds; whether litigants are judge-shopping or Judges are case-shopping; a real possibility of bias as apprehended by an informed observer and not a fanciful, tenuous, fantastic or superficial possibility,” he stated.

As such, the SC said Professor Olowofoyeku urged that recusals ought only to be resorted to so that justice is done and is seen to be done so as to maintain public confidence in the impartiality of Judges and to help maintain impartiality as a matter of fact.

“Judges, he said, need to respond to allegations of bias very carefully and with great care and circumspection. But they must show some (fortitude) in the process, (being) robust and strictly objective in their application of the jurisprudence.”

Ramkarran said that the test, as stated by the Professor, was whether the fair-minded and informed observer, after considering the facts, would conclude that there was a real possibility that the tribunal was biased.

Resistance

The Professor, according to Ramkarran, said that the Judge must ask whether or not there was a real possibility that the fair-minded and informed observer might think that there was a real possibility of bias. He concludes that “a robust application of these standards, which all postulate a high threshold, should assist adjudicators to avoid acceding too readily to recusal applications”.

“Professor Olowofoyeku, adopting a statement made by Justice Slade in 1955, said adjudicators ought to avoid ‘the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done.’”

According to Ramkarran, the legal expert had said that “Judges should resist being driven from their courts by the conduct or assertion of parties, including assertions of actual or imputed bias”.

Ramkarran’s column, which advocates that Judges exercise fortitude when dealing with requests for recusal, comes in the wake of Justice Holder’s voluntary recusal. He recused himself from hearing former Public Service Commission Chairman Carvil Duncan’s challenge to his removal from that post.

Duncan had moved to the courts to block the work of a presidential tribunal set up to determine whether he should be removed. This was in light of criminal charges brought against him, one of which has since been dismissed at the Magistrate’s Court. And while this case was ongoing, President David Granger had trade unionist Patrick Yarde sworn in to the position.

Justice Holder was quoted in sections of the media as saying on the date outlined for the hearing of the case that “I find that it will be prudent, judicious and in the interest of the administration of justice that I recuse myself from the case”.

This announcement by the Justice came on the heels of Prime Minister Moses Nagamootoo requesting that Holder disqualify himself from the Carvil Duncan case in light of the brewing tension with Williams over the accusation of misconduct at the last hearing back in March.

It is this misconduct that Holder had requested an apology for. Williams was also a ‘no show’ at the last hearing.