Death Squad Commission
Counsel advises that commissioners should have been asked to make a declaration of their independence
Current Affairs August 2004
Stabroek News
August 18, 2004
The opposition parties and other groups have been critical of the President's use of his power to appoint a presidential commission of inquiry to look into allegations about the alleged involvement of Home Affairs Minister Ronald Gajraj in the activities of a death squad without consulting the relevant stakeholders. This opinion piece by Senior Counsel Rex McKay suggests that as assurance of impartiality a member of a commission of inquiry before being appointed should make a declaration as to his knowledge of any fact that would impinge on the faithful and impartial discharge of his duty as a consequence of the oath he will take.
Senior Counsel's opinion
Public Officials are very often accused of abusing their official position.
Political rivalry may motivate the making up of such allegations. Where such allegations are made and are not frivolous prima facie, an inquiry is both necessary and desirable either to establish the allegations or to clear the names of the officials concerned.
On May 14, 2004 the President appointed a Commission of Inquiry under the Commissions of Inquiry Act Chapter 19:03 to determine:
Bharrat Jagdeo
"Whether and to what extent there is evidence of a credible nature to support the allegations that the Minister of Home Affairs, Ronald Gajraj, has been involved in promoting, directing or otherwise engaging in activities which have involved the extra-judicial killing of persons."
A Commission of Inquiry is purely a fact- finding agency whose function is investigatory and inquisitorial in character. Commissions have been vested with certain powers of Courts of law but they are not Courts. For example, a Court adjudicates whereas a Commission investigates and gives its findings of an advisory nature. However, there is high legal authority for saying that Commissions of Inquiry are quasi-judicial in character and subject to judicial review, meaning that they must observe the rules of Natural Justice.
It is important therefore that Commissions of Inquiry should be made up of eminent persons who are free from bias or apparent bias and are of unquestioned integrity; their findings usually inspire confidence and carry the imprint of dispassionate approach to their findings. However, legal history has shown that eminent persons with the highest integrity have been found to have legal bias. Very recently in Ex Parte (Pinochet No 2) the House of Lords was forced set aside its own decision after their earlier decision was challenged on the ground of Bias. It was contested that Lord Hoffman should not have sat in the case because of his and his wife's connections to Amnesty International. The House agreed.
The deployment of this undiluted investigatory and inquisitorial power without resorting to trial has damaged many reputations and ruined businesses. The upshot of what was called "trial by commission" resulted in public outcry against what was seen as punishment without the protection of judicial trial.
Realising that justice to the individual caught up in an enquiry is as important as the public interest to be served by a Commission of Enquiry, the Royal Commission on Tribunals of Enquiry in England in 1966 laid down certain cardinal rules embracing the principles of natural justice, as guidelines to be followed by Commissions of Inquiry with a view to avoiding injustice.
Section 5 of the Commissions of Inquiry Act Chapter 19:03 states: "it shall be the duty of each commissioner appointed under this Act to make and subscribe an oath or affirmation that he will faithfully, fully, impartially, and to the best of his ability discharge the trust, and perform the duties devolving upon him by virtue of such commission."
Section 7 of the said Act likewise mandates that:
"it shall be the duty of the commissioners, after taking such an oath or affirmation, to make a full, faithful, and impartial inquiry into the matter specified in such commission, and to conduct such inquiry in accordance with the directions (if any) in the commission."
Under Section 5 the appointee is required to take an oath that he will discharge his duty "faithfully, fully and impartially" while Section 7 in effect mandates him to do the same thing after taking the oath and embarking on the inquiry. In my view however, the nominee should make a written declaration of his independence before he is appointed and before he takes the oath.
Although the Act does not authorize the President to request a statement of independence and impartiality from a commissioner (as arbitrators are requir-ed to do) nevertheless, the President may claim that "the justice of the common law" permits him to do so as was done in Cooper -v- Wandsworth Board of Works(1863). In that case a builder began to erect a house in Wandsworth without having given due notice under the Act which required him to give notice to the board. The building was demolished by the Board of Works without asking the builder what he had to say. The Act did not require the board to give the builder a hearing. The builder sued the Board of Works for damages. Byles J. said:
"a long course of decisions beginning with Dr. Bently's case and ending with some very recent cases, establish that, although there are no positive words in a statute, requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature."
BIAS
"The Rule against bias" is concerned not only to prevent the distorting influence of actual bias, but also to protect the integrity of the decision making process by ensuring that, however disinterested the decision maker is, in fact, the circumstances should not "give rise" to the appearance or risk of bias. In the cautionary words of Lord Hewart, "It is not merely of some importance, but of fundamental importance that justice should both be done and be manifestly and undoubtedly be seen to be done."
In many cases bias may be unconscious in its effect and for those reasons, the courts look at the circumstances of the particular case to see if there is an appearance of bias." As Lord Justice Devlin put it in R-v-Barnsley Licensing Justices: "Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although, nevertheless, he may have allowed it unconsciously to do so."
Direct pecuniary or proprietary interest always disqualified the decision maker. However, outside of that category the Court considers where there appears to be a real danger of bias, or the "real likelihood of bias", which refers to "the possibility, not probability, of bias."
Disclosure by arbitrators
International arbitration bodies like the International Chamber of Commerce (ICC); the International Centre for Settlement of Investment Disputes (ICSID) and the American Bar Association (ABA) have adopted a safeguard to prevent decisions of their arbitration tribunals from being tainted with bias and eliminate the appearance of partiality as well as partiality in fact. As a condition precedent to sitting as an arbitrator each nominee must make a disclosure in writing to the appointing bodies before the arbitration commences stating that he knows of no fact or reason which would bear on his ability to be independent and impartial. The nominee is required to disclose not only relationships or interests which he believes might impair his independence, but also those which the opposite party might consider as impairing it.
The leading case in the United States on non-disclosure of an arbitrator's relationships or interests which might impair his independence and give the appearance of partiality in fact is Commonwealth Coating Corp.-v-Continental Casualty Co. 393 US 145 (1968).
In that case the U.S. Supreme Court set aside an award of a three-man tribunal because of the chairman's failure to disclose that he had previous business relations with one of the parties. The Court held that "any tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias."
The following cases illustrate the application of the principles of Natural Justice which would result in the setting aside of a decision which is in violation of those principles.
In Re EREBUS Royal Commissions (No.2) 1981 1 NZLR 618 the Court of Appeal of New Zealand emphasised the need for Commissions of Inquiry to comply with the rules of natural justice. The Court put it bluntly at p. 653, it said:
"In our judgment these are the major reasons why in appropriate proceedings the Courts must be ready if necessary, in relation to Commissions of Inquiry just as to other public bodies and officials, to ensure that they keep within the limits of their lawful powers and comply with any rules of natural justice."
In Mahon -v- Air New Zealand (1984) 3AER 201 the Privy Council confirmed the need for the observation of the rules of natural justice by Commissions of Inquiry. Following an air disaster on the 28th of November, 1979, in which an airline crashed in Antarctica killing 257 passengers, the Hon. Peter Thomas Mahon a judge of the New Zealand High Court, was appointed to be a Royal Commission to inquire into the cause and circumstances of the disaster.
After taking evidence for seventy days, the Commissioner found that the single, dominant, and effective cause of the crash was the act of the airline in deviating from its flight path; he also found that the evidence of the Chief Executive Officer of the airline and some of its executive pilots amounted to "an orchestrated litany of lies"
The airline applied for judicial review. The application was "leap frogged" to and heard in the New Zealand Court of Appeal. The Court of Appeal set aside the judge's order on the ground that the judge had acted contrary to the rules of natural justice by not giving the persons affected by those findings the opportunity to be heard. The Commissioner Judge Mahon appealed to the Privy Council. The Privy Council dismissed the appeal and affirmed the Court of Appeal decision.
Lord Diplock giving the advice of the Privy Council said:
"Any person who will be adversely affected by the decision to make the
finding should not be left in the dark as to the risk of the finding being
made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision maker might have deterred him from making the finding even though it cannot be predicated that it would inevitably have had that result."
In Simmonds-v- Williams (No 2)(1999) 57 WIR 95 the OECS Court of Appeal held that the legal advisers to the Commission of Enquiry were biased in relation to one of the parties whose affairs were to be investigated, notwithstanding that the legal advisers had no decision making role. The Court said "clearly if Counsel to the Commissioner is biased he cannot fairly discharge his role and the commission would thereby be flawed and so would the findings and/or the conclusions of the commissioner"
In Ex-Parte Pinochet (No. 2) the House of Lords reversed its earlier decision after the circumstances disclosed that Lord Hoffman was infected with bias in the legal sense. Lord Browne-Wilkinson in his speech said:
"Senator Pinochet does not allege that Lord Hoffman was in fact biased. The contention is that there was a real danger or a reasonable apprehension or suspicion that Lord Hoffman might have been biased, that is to say it is alleged that there is an appearance of bias not actual bias."
In my view ,where a Presidential Commission is appointed to inquire into allegations against a public official especially an official who is part of the executive arm of the state, the intended commissioners before taking the oath should submit a statement of their independence disclosing whether they have any close personal relationship with the official who is the subject of its inquiry or any business relationship with the state or whether they know of any reason which would bear on their ability to be independent and impartial and which might give the appearance of bias.
And what if the appointing authority knows or ought reasonably to know, of facts which would bear on the ability of the intended Commissioner to be independent and impartial? Well, as Bob Marley said "Who the cap fit, let them draw the string."