We are fortunate here in Nevis that we have a Constitution as the supreme law of the land, which is designed to be protective of our fundamental human rights. That Constitution would not be worth very much in the absence of a Court system manned by impartial judges knowledgeable in the law, prepared to make decisions and rulings in every matter to come before them. It is sometimes said of our democratic society that it has three essential independent elements, the Executive, the Legislature and the Judiciary. This is not strictly true, as the Executive and the Legislature are the same few persons. And, there being no checks and balances therefore between the Executive and the Legislature, it is all the more important that we have a strong independent Judiciary.
It was surprising to hear, perhaps a year ago, a high Public Official say ‘The Courts must respect the Government’. The reverse is the case. Governments and all of us must respect our Courts, especially when we may think they are wrong in a ruling or some part of it.
I want to discuss some aspects of the decision of the Court of Appeal given on August 27th in the case of ‘Vance Amory v. Thomas Sharpe QC, The Commission of Inquiry (COI), The Nevis Island Government (NIA), The Attorney General of St. Kitts & Nevis.
This COI case has been overshadowed in the media and in public discussion by the Election Petition matter. We have heard that the distinguished Chief Justice, Sir Hugh Rawlins, cited the fact that the Courts for which he was responsible did not always manage to produce their judgements promptly as affecting his decision to retire. Did this case make a contribution? Surely twenty three months is not up to the standard which the Court would wish to set for itself? Had there been a decision within say three months, the NIA might have had the option of establishing a new Commission of Inquiry (COI) which, by now, might have reported. I say this as respectfully as I can. Judges are human but delays such as this are surely unacceptable.
The case itself was quite simple. The Nevis Reformation Party (NRP) led NIA set up a COI to inquire and report into certain matters occurring during the time of an earlier Administration. Vance Amory was Premier of that earlier Administration. Thomas Sharpe was appointed sole Commissioner. The NIA chose Counsel and support staff for the Commission.
Mr. Amory sought Judicial Review of the appointment of the COI. His claim raised the issue: was there actual and/or perceived bias on the part of Mr. Sharpe and/or the COI staff towards Mr. Amory?
The Judge, at First Instance, found against Mr. Amory on all points. He appealed and succeeded in some of his Appeal. First his case against Mr. Sharpe QC, The Commissioner, failed completely. The Court said at paragraph 19 ‘…the learned Judge was right in finding that the evidence did not support a case of actual bias by Mr. Sharpe towards Mr. Amory and that a fair minded and informed observer would not conclude that there was a real possibility that Mr. Sharpe was biased towards Mr. Amory. There was no attack upon the suitability of Sir Richard Cheltenham QC as Lead Counsel to the Commission. But three other persons manned the Commission. Jeffrey Nisbett as Junior Counsel, Morrice Tyrell as Secretary and Myrna Liburd as Assistant Secretary were held to be infected by bias. It was said that Jeffrey Nisbett had appeared on the political platform for the Party opposing Mr. Amory, that Morrice Tyrell was a known opponent of Mr. Amory and had made critical comments about him on the Internet, and that Myrna Liburd was an executive member of the NRP. Other matters brought up included a request, before the COI held a public inquiry, to Mr. Amory by letter signed by Mr. Tyrell to produce his Bank accounts, and a reference by Mr. Sharpe in his affidavit to the COI being concerned with matters related to ‘maladministration and possible corruption’.
The modern law of apparent bias is stated thus ‘The question is whether the fair minded and informed observer, having considered the facts would conclude that there was a real possibility that the tribunal was biased’.
Another authority says: ‘The fair minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally bearing in mind that it is the appearance that these facts give rise to that matter, not what is in the mind of a particular Judge or tribunal member who is under scrutiny…’
And another: ‘…Then there is the attribute that the observer is ‘informed’. It makes the point that before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. …She is able to put whatever she has read or seen into its overall social, political or geographical context…’
Our Appeal Court said: ‘An appellate court is well able to assume the vantage point of a fair-minded observer with knowledge of all the relevant circumstances…’ But is it? These definitions give any court a hard task. A court can only come to conclusions based on the evidence presented to it. Whereas we who live in Nevis may be aware of facts which will influence our perception of bias or apparent bias and these facts, well known to us, may not come to the notice of the court. It is difficult to see how this can be avoided. In relation to the present case the Court having said that Mr. Jeffrey Nisbett’s integrity was not being attacked, appears to be challenging his ability fairly to perform the duties of Junior Counsel. For what it is worth, we who reside in Nevis might say that Messrs. Brantley, Hobson and Colin Tyrell, on one side and Messrs. Herman Liburd and Patrice Nisbett on the other are political lawyers. We would know that Jeffrey Nisbett appeared on the platform only once in 2000 to introduce his young nephew Patrice Nisbett. We would see him as a lawyer of impeccable integrity who would have a healthy scepticism of politicians generally, whichever party they may belong to. Just a personal view of course, but I can’t see how the fair-minded observer living in Nevis could ever think that Jeffrey Nisbett might act consciously or unconsciously with bias towards anyone called as a witness at the COI.
The appointment of Morrice Tyrell and Myrna Liburd, NRP activists, is altogether different. Unfortunate appointments, nevertheless neither was in a position to influence the Commission. Much was made of the Tyrell letter of request to Mr. Amory for Bank statements, and the Court said that a Salmon letter should have been sent. Such a letter relates the six cardinal principles of fair procedure. These state that a Tribunal must be satisfied that there are circumstances which affect a person before he becomes involved in an Inquiry, and that he should be informed of any allegations against him and the evidence for those allegations. He must then be given the opportunity to prepare his case. It was, of course, common knowledge that Mr Amory was being investigated and it is unlikely that any letter telling him so would have been much of a revelation. But fair process demanded that.
The Court considered Mr. Sharpe’s statement that the COI was concerned with matters relating to maladministration and possible corruption. The Court agreed that on any reasonable interpretation of the COI’s Terms of Reference, it was likely that the Inquiry could reveal both maladministration and corruption. There is another thing which I imagine was not put before the Court, but which would have been known by the fair minded and informed observer living in Nevis. That is that as soon as Mr. Sharpe had been appointed he was interviewed for about an hour on one of our well known radio programmes, and he described what the COI and he the Commission was going to do. He said that he was not going to be embarking upon an Inquiry without having satisfied himself that there was a prima facie case in respect of each of the matters he was asked to inquire into. As evidence was collected it would become apparent that either there was nothing in a particular subject of the inquiry and that matter would be dropped, or that further inquiry was merited. The listener would have been impressed that Mr. Sharpe was trying to be scrupulously fair and that the procedures he outlined were designed to ensure that the COI would operate to the highest standards of fairness and impartiality.
The Court made three orders and another respecting costs.
The first order was ‘A declaration that the staff of the Commission is with the sole exception of Senior Counsel to the Commission infected with apparent bias against Mr. Amory so as to render the conduct of the Commission unfair, partial and biased against Mr. Amory.’ This seems to apply to Jeffrey Nisbett, Morrice Tyrell and Myrna Liburd
The second quashed the appointment by the NIA of the staff of the COI.
The third prevented all the respondents or any of them from proceeding with the COI.
Granted that the Secretary and Assistant Secretary were infected with actual or apparent bias and even, erroneously the fair minded and informed observer might think, Jeffrey Nisbett also, that leaves Mr. Sharpe QC, the Commission. He was held not to be actually or apparently biased. Some might wonder therefore what was the basis for preventing the continuance of the COI. A fresh Secretary, Assistant Secretary and Junior Counsel could easily and quickly have been appointed allowing Mr. Sharpe to continue his work, assisted by the forensic accountants who would, one would expect, have produced voluminous and important information for the commission. It seems a complete waste of money to arrest the Commission completely when it could carry on with different staff and publish its conclusions within a few months.
Finally there is the matter of costs. This is very confusing. It is one thing for the NIA to meet the cost but the Court of Appeal seemed to think that the individuals concerned, Sharpe, Nisbett, Tyrell and Liburd should be personally liable. This is hard on all of them but especially Mr. Sharpe. He had nothing to do with the impugned appointments. As we say, ‘He met them there’. Mr. Sharpe is without fault in this matter. He is neither actually or apparently biased. He was invited, an outsider, to head an Inquiry as Commissioner. He accepted in good faith. Are we now to tell him that he must personally pay the costs of those who succeeded in impeaching the COI through events over which he had no control? There is a very real possibility that upon a change of Government, the NIA, perhaps led by Vance Amory, finding its own Treasury short of money might proceed against Mr. Sharpe. Is that really what the Court intends? It would seem perverse. If the order stands, potential Commissioners may, in future, be harder to find. No doubt the NIA is thinking about an appeal to the Judicial Committee of the Privy Council.
The Court would not want its findings and orders to be misinterpreted. In that connection I would point out that Mr. Michael Perkins calling in to VON Radio’s ‘On the Mark’ programme and Mr. Mark Brantley, the host of the show, did not accurately report the Court’s findings.
Mr. Perkins said: ‘…that the entire Commission that was set up, with the exception of the Senior Lawyer for the Commission from the Commissioner down to the very typist, the Appeal Court found that they were infected with bias…’ That is certainly not the case in relation to Mr. Sharpe QC. He seemed to be suggesting that Mr. Sharpe QC was part of some conspiracy to nail Mr. Amory which is absurd.
Mr. Brantley said broadly the same thing: ‘…so when it (the Court of Appeal) says that all of them save and except Mr. Cheltenham were tainted with apparent bias it means that the entire structure from Commissioner on down was viewed by the CA as being set up in a biased manner in order to prejudice Vance Amory. It was a Kangaroo Court…’
The Court of Appeal said no such thing.
A Kangaroo Court is defined as:
1. A mock court set up in violation of established legal principles.
2. A court characterised by dishonesty and incompetence
3. A mock court in which the principles of law are justice are disregarded or perverted.
Nothing in the Judgement supports this statement and on its face it is plainly libellous and demands an apology without delay. The Commissioner and Senior and Junior Counsel are persons of high repute and absolute integrity. To think that any one of them, or all three together would be willing to play any part in a Kangaroo Court is absurd. I have no knowledge what Mr. Sharpe QC will do and presumably he awaits a decision on Appeal by the NIA.
Syndicated columnist
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