PSAT Chairman should have recused himself from hearing complaint filed by niece – CoA rules

Public Trustee and Official Receiver, Prithima Kissoon and Justice (retd) Nandram Kissoon
Public Trustee and Official Receiver, Prithima Kissoon and Justice (retd) Nandram Kissoon

The Guyana Court of Appeal has ruled that the Chairman of the Public Service Appellate Tribunal (PSAT), Justice(retired) Nandram Kissoon, should have recused himself from hearing a complaint filed by his niece, former Deputy Solicitor General (DSG) Prithima Kissoon.

Prithima Kissoon is now serving as Public Trustee and Official Receiver at the Legal Affairs Ministry. Her appointment as DSG within the Attorney General’s Chambers was terminated on August 31, 2017, and as a consequence, she pursued several remedies, one of which is an appeal to the PSAT against the decision of the Public Service Commission (PSC) to fire her.

The PSAT is a statutory body created under the Public Service Appellate Act, Cap 27:01, to hear appeals against decisions of the various service commissions affecting employees.
Guyana’s Attorney General in 2019, Basil Williams, had filed an appeal against a decision of Justice Kissoon not to recuse himself from hearing the appeal filed by his niece. The PSAT Chairman had concluded that, should a fair-minded and well-informed person reasonably find that there is a real possibility of bias, the principle of necessity mandated that he preside over the proceedings.

He reasoned that his disqualification would result in the lack of quorum for the tribunal, and with there being no other tribunal of the same nature, or an alternate member to preside in event of a recusal, there cannot be a properly constituted tribunal without him.

Proceedings for judicial review were consequently filed in the High Court to question this decision. While High Court Judge Fidela Corbin-Lincoln found that there was a real danger of bias in Justice Kissoon continuing in the proceedings, she ruled that based on the doctrine of necessity, the reasons as put forward by the PSAT were not so unreasonable or irrational or made in bad faith.

Justice Corbin-Lincoln held that judicial review proceedings, not being an appeal on the merits of the PSAT decision, she would not substitute her own view for that of the tribunal. Considering this, she ruled that Justice Kissoon can preside over the matter filed by his niece.

Solicitor General Nigel Hawke, on behalf of the Attorney General, filed an appeal against Justice Corbin-Lincoln’s ruling with the Court of Appeal. In so doing, Hawke argued that the judge erred in her ruling, and underscored the importance of fairness for good and proper judicial administration.

He contended that, for this reason, an uncle presiding over a matter concerning his niece cannot advance good public administration. He highlighted the fact that the trial Judge expressed the view that no reasonable tribunal could have concluded that there was no apparent bias in the circumstances of this case, but yet the Chairman was given the green light to continue the hearing.

Automatic disqualification

Citing various legal authorities and the facts of the case, the Court of Appeal held, “We are of the view that the relationship between the Chairman and Ms. Kissoon ought to lead to the automatic disqualification of him sitting in the proceedings of the PSAT appeal.”

The Appellate Court said that the fair-minded observer would conclude that family ties give rise to a real possibility of bias. The Judges pointed out that, however noble were the intentions of Justice Kissoon, and the argument that he is not actuated by bias, it is felt that he could be unconsciously influenced.

“While it has been suggested that he has no pecuniary interest in the proceedings, the public perception of the possibility of unconscious bias is the key,” the Appeal Court held. In the instant case, the court noted that the Bangalore Principles on Judicial Conduct may be relevant.

The Appellate Court said that the Bangalore Principles on Judicial Conduct clearly spell out ethical standards and principles for judicial officers. Specifically, it referred to the rule that a Judge should disqualify him or herself from participating in any proceedings where the Judge or a member of the Judge’s family has an economic interest in the outcome of the matter in controversy.

According to the Court of Appeal, in the proceedings in the High Court from which this appeal arises, the trial Judge, on a finding of bias, ought to have considered that the continuation of the case before the presently constituted PSAT would render it unfair.

The court said that consideration should have been given as well to other alternatives that were available, and which did not require the invocation of the rule of necessity. Having regard to all the circumstances, the Appellate Court said consideration can be given to a new Chairman being appointed specifically for hearing Ms. Kissoon’s matter.

In the end, the Appeal Court said Ms. Kissoon may consider presenting a case for judicial review in the High Court. The Attorney General’s appeal was allowed, and each party was ordered to bear his/her own cost.

Presiding over this matter were Chancellor of the Judiciary, Justice Yonette Cummings-Edwards; Justice of Appeal Dawn Gregory, and additional Judge of the High Court, Diana Insanally.