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Continuation from last week

97. The further question is whether the Chief Justice exceeded her authority and violated the principle of the separation of powers in making the report public. The Chief Justice was both the “complainant” in respect of the matters under consideration by the Tribunal and was also, as Chief Justice, the head and chief administrator of the judiciary. It is manifest that she had a legitimate interest in receiving the report and appropriate standing for disclosing to the public what it said.

98. It is difficult to understand how the publication of the report before any action was taken by the President raised any issue concerning the separation of powers. Article 134(3) of the Constitution simply requires the President, where there is a recommendation to that effect, to remove the relevant judge from office. That provision says nothing about making any pronouncement, public or otherwise; neither does it mention publication of the report of the Tribunal of Inquiry.

99. It is fair to say that no specific role is given to the Chief Justice about this matter either. The respective responsibilities concerning publication of the report must therefore be a matter of implication. The question of the misbehaviour or otherwise of a judge and the possibility of his or her removal is a matter of constitutional importance and considerable public interest, certainly of direct interest to the President but also to the Chief Justice, since both of them have Constitutional responsibilities in relation to the matter, though in different respects. The Constitution, it must be noted, does not give the President a discretion whether to remove a judge after a recommendation to that effect by a Tribunal of Inquiry. If the Tribunal of Inquiry makes such a recommendation, the President is constitutionally mandated to carry the recommendation out.

100. The question of acting contrary to the separation of powers contained within or implied by the Constitution cannot be considered abstractly. Each suggested breach must be examined in light of the way in which specific powers are entrusted to the particular Constitutional organ in question and removed from others. Essentially, there must be a usurpation or attempted usurpation by one body or authority of the role given by the Constitution to another body or authority before there can be a breach of the Constitutional separation of powers. Depending on the circumstances, such a breach might or might not have legal consequences. At most, if the only matter at issue is the breach itself, the action may be found to have been undertaken without legal authority and therefore to be legally void. In this context, it is important to remember that, merely because a particular task is entrusted to one Constitutional organ does not necessarily mean that the task cannot be undertaken by someone else. There can be no doubt that, in the present case, the President was impliedly authorised to make the report of the Tribunal public. It does not follow that the Chief Justice was, therefore, not legally able to do so. To the contrary, the maintenance of public confidence in the judiciary is a public interest of a very high order and part of the functions of a Chief Justice. It was a matter for her to determine whether publication of the report, which was given to her in her official capacity, was in the public interest or otherwise. In this respect she was entitled, indeed bound, to act upon her independent judgment about what she should do with regard to publication of the report. In exercising this responsibility, she was not directing the President as to how he should exercise his constitutional duty.

101. In the circumstances, we do not find that the publication by the Chief Justice was wrong, or exceeded her authority or powers or constituted an infringement of the doctrine of the separation of powers between the judiciary and the executive. Indeed, it was appropriate that the report should be published expeditiously in the light of the constitutional implications and public interest concerning the matter itself and the judiciary in general.

Matter 4: The institution of the Tribunal of Inquiry

102. This matter concerns communications between the Chief Justice and the Chair of the CAA and with a senior official of the Commonwealth Secretariat concerning complaints potentially to be made by her in respect of the conduct of the Judge and the appointment and membership of a Tribunal of Inquiry to consider the complaints. The underlying suggestion is that the Chief Justice improperly influenced the establishment of the Tribunal of Inquiry and its membership.

103. It is useful to start with relevant emails from the Chief Justice and a press release suggested by the Chief Justice about the proposed inquiry into the Judge’s conduct. The relevant email correspondence is set out below in chronological order.

2 October 2017

From the Chief Justice to Mark Guthrie, Legal Advisor, Justice Section, Rule of Law Division, Commonwealth Secretariat –

“We met in Seychelles this year on your visit with Pauline Campbell. We discussed, among other things, my difficulty with having judges removed or suspended for their incompetence or misbehaviour. Things have come to a head and I have written to the judge concerned with a copy to the Constitutional Appointments Authority (CAA). After discussion with the Authority I have now prepared a file asking that Judge Karunakaran be removed both for misbehaviour and incompetence.

They have contacted the previous Chief Justice, Frederick Egonda-Ntende who is willing to chair the Tribunal. Another local judge, a woman for gender neutrality has also accepted to sit on the Inquiry.

They have asked me to contact you to see if you would be willing to sit on the three member Tribunal. If you are not able to do so I wonder if the Commonwealth can assist in any way with another nomination to help us out. It will be a historic first for Seychelles to have such an Inquiry but I don’t believe that I can progress the Judiciary until this issue is dealt with once and for all. Given your work on this issue I think your assistance and participation is all the more vital.

I attach the initial letter sent to Judge Karunakaran (but there is much more evidence in the file re his incompetence and misbehaviour). I also attach the relevant constitutional provisions.

I am afraid I need an urgent answer from you as the present President steps down on 16th October 2016 and we want to have the Tribunal established before then.

I am in any case indebted to you for your guidance and I look forward to your reply.”

3 October 2016

From Mr Guthrie to the Chief Justice –
“…Whilst I am most sorry to read of the circumstances which have given cause for the constitution of a Tribunal of this kind, I am honoured to be invited to serve on it.

However I will need to discuss the invitation with my director and ultimately the decision whether I can accept the invitation will be that of the Commonwealth Secretary General.

I note the time constraints which you are under and I will do everything to give you a reply within your deadline.”

3 October 2016 5:56am

From the Chief Justice to Marie-Ange Houraeau (then Chair of the CAA)

“I know I have to act quickly but as you can see I am making sure that everything is in place. If we get Mark Guthrie it will give the Tribunal a lot of credit as he has been initiating measures all over the Commonwealth in terms of the proper appointment and removal of Judges. He is an eminent barrister and would qualify under our Constitution as a Tribunal member. As soon as he gets back to me with permission from the secretariat I will move with the formal letter and file of evidence to you.

In this way my decision to bring the matter to you will be seen as less political and more because of judicial incompetence and misbehaviour.

Please bear with me.”

At 11:41am Mrs Houraeau asked the secretary to the CAA, Lina Pragassen to print out the email correspondence from the Chief Justice and put it on file in respect of what was called the “Tribunal case”.

5 October 2016

From Mr Guthrie to the Chief Justice –

“I have discussed the request that I serve on the proposed disciplinary tribunal with my superiors.

However, the view of the Secretariat is that it would be preferable if we were to suggest names of those who you might approach to assist with this task.

Therefore, might I propose the following retired judges (in no particular order) whom you might approach:

1. The Hon. Margaret Wilson QC. Ms Wilson is a retired judge of the Supreme Court of Queensland. In addition she currently serves on the Court of Appeal of the Solomon Islands…

2. His Honour Peter Beaumont CBE QC. Mr Beaumont retired as Recorder of London in 2013. In this capacity he was the senior resident judge of the central criminal court in London. … he currently serves as an appeal court judge in Jersey.

If you would like further recommendations, please let me know and I will endeavour to assist further.

The provisions of the Commonwealth model law on judicial service commission in relation to the procedures of a judicial disciplinary tribunal may be of use to the Tribunal to be constituted. Whilst I know you already have a copy of this I attach a further copy for your kind attention.”

6 October 2016

From the Chief Justice to Mrs Houraeau –

“As it is no longer appropriate that I involve myself in the choosing of the Tribunal panel I forward Mr Guthrie’s response for your action. You may decide to approach one of the candidates proposed or chose another with the Attorney General’s advice, given the time constraints.”

10 October 2016

From the Chief Justice to Mrs Houraeau –

“We spoke. See Press Release attached that you might issue.”

Attached press release:

“The Constitutional Appointments Authority wish to state that they have decided to set up a Tribunal of Inquiry to look into the ability of Judge Karunakaran to perform the functions of his office following complaints made to it. Such a decision was made pursuant to Article 134 of the Constitution. We have also been informed that Judge Karunakaran has been suspended by President Michel effective immediately, from performing the functions of a judge pending the decision of the Tribunal. The chair of this Tribunal is the former Chief Justice Egonda-Ntende.

We have been assured by Chief Justice Mathilda Twomey that the court is making immediate arrangements to ensure minimal delays in case proceedings and to reduce the impact it has on any and all cases currently before the court.

Further as the matter is now before the Tribunals of Inquiry and the matter is under investigation it would be inappropriate for the Authority to make any further comments.”

104. In her evidence, the Chief Justice stated that she considered that her actions were a fulfilment of her obligations as Chief Justice in respect of the administration of the judiciary. The CAA is the body concerned in respect of any process of instigating inquiries into the conduct of judges.

105. The Chief Justice indicated (and this was confirmed by Mrs Houraeau), that the CAA and Mrs Houraeau were inexperienced in relation to issues such as the investigation of a judge, as this had never happened before. The Chief Justice felt it appropriate to suggest what steps ought to be taken in this regard and to assist the CAA, particularly in the light of the fact that she had met Mr Guthrie when he had visited the Seychelles and was aware of his expertise in relation to judicial conduct in the Commonwealth.

106. (It was alleged by the Judge that the Chief Justice’s email of 6 October 2016 was a fabrication, relying upon the lack of address particulars in a copy of the email forming part of material annexed to an affidavit in the litigation in the Constitutional Court. The Tribunal, through Counsel Assisting, has verified the authenticity of the email and has no hesitation in rejecting the Judge’s suggestion.)

107. It is our view that the approach taken by the Chief Justice was in no way inappropriate. In order for the CAA to exercise its Constitutional role in respect of members of the judiciary whose conduct should be subject to enquiry under Art 134 of the Constitution, it is of course necessary that relevant information be brought to its attention. There is no category of person prescribed by the Constitution as responsible for undertaking or able to undertake this role. No doubt, complaints can be made by any citizen. At the same time, given the position of the Chief Justice, it is clear that where circumstances come to the Chief Justice’s attention which reflect on a judge’s suitability for office it is necessary for the Chief Justice to give careful consideration to whether the Constitutional process for possible removal should be commenced. There is no bright line dividing conduct which is merely difficult to manage on the one hand and that which renders a judge liable for removal on the other.

108. It is no part of the Chief Justice’s responsibilities to determine suitability but, in our view, where a serious question arises as to fitness for office the Chief Justice has a duty to bring it to the attention of the CAA. It is then the responsibility of the CAA to consider whether the conduct merits referral to a Tribunal of Inquiry. In the nature of things, a Chief Justice’s responsibilities in these matters cannot be deflected if, as it happens, some of the impugned conduct is directed personally to him or her. (Perhaps the information brought to the attention of the CAA for the purpose of its exercising its function is better categorised as information rather than a complaint and the person bringing the information forward be described as an informant rather than a complainant. In the case of the Chief Justice, this would help to depersonalise what should be an institutional approach, rather than a personal one.)

109. Adopting the suggested terminology, the mere fact that the information provided to the CAA by the Chief Justice concerned in part the Judge’s conduct towards her, did not make it inappropriate that the Chief Justice should bring all the conduct reflecting on his suitability to the attention of the CAA. She was acting no less in her official role of Chief Justice in fulfilment of her duty to bring all that information to the CAA. Furthermore, it was not inappropriate for the Chief Justice to assist the CAA in the exercise of its functions although, of course, it was important that there be no attempt to exercise any power of direction. It was reasonable, also, that (given her position) she should advise the CAA as to persons who might be suitable for appointment to the Tribunal although, again, without usurping the independent exercise by the CAA of its power of appointment.

110. The Chief Justice, exercising an administrative function, was not only entitled to put forward to the CAA her own conclusions about the fitness or otherwise of the Judge to remain in office but it was also sensible for her to do, as they could assist the CAA in its evaluation of the issues. She was entitled to express her views strongly and, given the public interest in resolving the question of what was to be done, if anything, to deal with the problem presented by the Judge’s conduct, to attempt to persuade the CAA that appointment of a Tribunal to inquire into the matter was appropriate. This followed from her responsibility for the judiciary as Chief Justice. (Of course, any citizen can also make a complaint to the CAA, just as the Judge did in the present case.) In a sense, the Chief Justice had an interest in whether the CAA would refer the matter to a Tribunal, since she had formed the opinion that the Judge was not fit to hold office. As, however, she was not in a position to make any decision determinant of either referral to a Tribunal or whether a recommendation should be made to the President for the Judge’s removal, there was simply no possibility that she was in or had placed herself in any conflict of interest.

111. The Judge has submitted that it was not appropriate for the Chief Justice to give advice to the CAA as to how they might proceed, because the CAA had legal assistance available to it. Even if legal advice were available, it could not make the provision of advice or assistance by the Chief Justice inappropriate. However, the only evidence of the availability of legal assistance cited by the Judge is that, in litigation which involved the CAA in 2012, 2014 and 2016, it was represented by counsel. This is a very long way short of establishing the argument he seeks to make. One would need to know, at the very least, the budgetary position of the CAA at the relevant times, what instrumentality actually paid the legal fees incurred and the budgetary position of the CAA at the relevant time of the complaint against the Judge. But, even if the CAA had available to it the funds to retain counsel, it was entirely a matter for it to manage its resources and it cannot be criticised, at least in any way that might entail legal consequences, because it decided that counsel would not be retained. There was no impropriety, let alone illegality, involved in the CAA consulting the Chief Justice about the practical steps necessary to be taken to consider the matter of the Judge’s fitness. Nor was the Chief Justice under either a legal or ethical duty to refrain from giving the assistance which she provided, essentially as to the character of the complaints about the Judge and the membership of the proposed Tribunal.

112. The then Chair of the CAA, Mrs Houraeau, gave evidence to the Tribunal about her communications with the Chief Justice about the proposed enquiry and the Tribunal has examined the relevant correspondence. It is not intended to set out that evidence in this report. It is sufficient to say that there is nothing to support a suggestion that the Chief Justice exercised improper or inappropriate influence over the Chair or the CAA in respect of her or its considering what to do about the information it was given concerning the Judge. In substance, she made reasonable suggestions and these were adopted.

113. The then President was also Minister for Legal Affairs and had been kept informed about the process being undertaken. Both the Chief Justice and the Chair were anxious to have the matter go to the President before his (impending) retirement because his proposed successor, Mr Faure, was unaware of the details. Moreover, as the Chief Justice mentioned in her evidence, the Judge had some time earlier given a decision (she thought, inappropriately) in a politically sensitive case and wanted to avoid any suggestion that the incoming President might have been influenced by that in making a decision following the institution of the Tribunal of Inquiry. At all events, the matter was rightly regarded as so serious as to require urgent attention. The Judge was in office and his history of misbehaviour such that it was open to them to consider that he presented a continuing risk to the reputation of the judiciary, as well as to the litigants in his court. That they did not want an unnecessary delay arising from the changeover of Presidential responsibility was reasonable. In our view, it was proper to move the matter forward in an expeditious manner and we accept the evidence of the Chief Justice and Mrs Houraeau about their wish to refer the matter to a Tribunal of Inquiry before President Michel retired. There is no evidence that suggests that this was motivated by any political considerations. We do not see that there was anything inappropriate either with the conduct of the Chief Justice for the Chair of the CAA in relation to this matter.

114. Some particular additional issues raised by the Judge should be dealt with. In the email of 2 October 2016, set out above, the Chief Justice stated to Mr Guthrie, “After discussion with the Authority I have now prepared a file asking that Judge Karunakaran be removed both for misbehaviour and incompetence”. The Judge points to the use of removed as distinct from investigated, and submitted that this meant that she had already decided the grounds upon which he was to be removed, even before filing any complaint with the CAA and the CAA had considered whether the question of removal ought to be investigated. Accepting that this point is correct, it does not suggest impropriety of any kind. The Chief Justice was entitled to have formed a concluded opinion about the Judge’s fitness for office and entitled to express that view to the CAA in connection with its consideration of the decision whether to refer the Judge’s fitness to a Tribunal.

115. In the context of the email to Mr Guthrie, the Chief Justice’s observation simply placed him in the picture to explain her approach to him. This could not be regarded as any inappropriate pre-judgement since it merely expressed the opinion which drove her to request the CAA to undertake the Constitutional steps which, if the Tribunal of Inquiry formed the same opinion, would lead to the recommendation (indeed, ultimately made) that the Judge should be removed from office. At all events, the fact that the Chief Justice had the view that he should be removed and the reasons for that view would, if the CAA accepted that it was appropriate to point a Tribunal of Inquiry, inevitably come to the attention of the Tribunal. It cannot be a just criticism that the Chief Justice’s complaint was comprehensive and persuasive. In short, it was not improper for the Chief Justice to express the view that the Judge should be removed.

116. In her email of 3 October 2016 to the Chair of the CAA, the Chief Justice expressed the hope that, if Mr Guthrie were to be a member of the Tribunal, this would “give the Tribunal a lot of credit” because of his role in the Commonwealth initiating measures concerning the appointment and removal of Judges. Her email concluded –
“In this way my decision to bring the matter to you will be seen as less political and more because of judicial incompetence and misbehaviour.”

117. The Judge has submitted that this proves that the Chief Justice’s motivation was, in truth, political and not actually because of any judicial incompetence or misbehaviour on his part.

118. We do not accept this submission. First, there is nothing in the exchanges between the Chief Justice and the Judge leading up to her approach to the CAA which hints at any political issue, nor has is there any evidence otherwise. Secondly, the matters identified by the Chief Justice as justifying an Inquiry all go to competence and are supported by documentary corroboration of various kinds. Thirdly, the Tribunal concludes, looking at the evidence as a whole, that this was merely an expression of the desire to appoint to the Tribunal, if possible, a patently independent and internationally highly regarded lawyer who specialised in the field of judicial ethics, whose decision would demonstrably be unaffected by any political considerations. Of course, there could be no escaping the fact that a Constitutional proceeding in respect of the judge’s fitness for office with the potential consequence that the judge might be removed would be, in a general sense, politically sensitive and, perhaps, politically controversial. The applicable Constitutional arrangements were designed to avoid, at least, political decision-making. The more demonstrably independent of local pressures the Tribunal membership was the better, for obvious reasons. In the context, both generally and in respect of the email to Mr Guthrie, the Chief Justice’s remark should be understood as expressing a desire to achieve this outcome in respect of membership of the Tribunal if it were possible

119. Accordingly, the Tribunal rejects the submission of the Judge that the Chief Justice’s motivation in preferring her complaint against him to the CAA was political.

120. The Judge also pointed to the Chief Justice’s email of 6 October, 2016 withdrawing from further involvement in the process as “no longer appropriate”. He submitted that this amounted to an admission that she was “a judge in her own cause”. In her evidence, the Chief Justice expressed some discomfort about being involved in the appointment of the judges on the Tribunal. The evidence was –

“Q. All right. Why did you consider it to be inappropriate that you shouldn’t take it any further steps?

A. Because I think it would be a, a conflict of interest that the complainant was somehow involved in the actual panel that heard the, the complaints of the complainant.”

The Chief Justice later said –

“And I did realise that it was probably improper to do that and I recorded that in an email which I copied to the Attorney General, and said, ‘Here is Mr Guthrie’s email, it’s inappropriate that I get involved in this process, but these are the names of the people’.

121. We have already explained why we do not think that the judge had a conflict of interest. This is not to say, however, that it would have been wise for the Chief Justice to have been actively involved in the selection of members of the Tribunal. Had she done so, and had her recommendations of been accepted, this might have created the impression that the Tribunal was, as it were, “stacked” with her supporters. This could potentially have undermined public acceptance of the Tribunal’s report and ultimate recommendation. Such an impression might have been created even if there was in fact no attempt at “stacking”.

122. As is often the case, it is necessary to maintain not only actual propriety itself but also the appearance of propriety. One of the obvious difficulties in a small jurisdiction such as the Seychelles, as the Chief Justice mentioned in her evidence, would be the appointment to a Tribunal of Inquiry from a small bench of judges who might well be either friends of or personally sympathetic to the Chief Justice on the one hand or the Judge on the other. Much the same considerations would apply to senior members of the legal profession. Furthermore, as is obvious, the position of the Chief Justice itself might have the appearance of weighing in the scales. At the same time, a Tribunal was necessary and appointment of its members essential. And any judges who were appointed would simply have to do their duty.

123. It was, for the reasons we have explained, both reasonable and proper for the Chief Justice to have proposed Mr Guthrie for membership of the Tribunal and enquire about his availability. However, it was wise also that she should avoid further involvement in the selection of particular members. (She did provide some assistance by way of contact details but this cannot be criticised.) Her email withdrawing from involvement in this matter was, we note, also sent to the Attorney General.

124. Accordingly, we do not accept that the Chief Justice was legally or ethically bound by the posited conflict of interest to decline to assist the CAA to identify appropriate members of the potential Tribunal. Of course, she should not (and did not) purport to direct the CAA as to any appointment.

125. These matters must be approached in a practical way which takes into account real, as distinct from hypothetical, legal and ethical questions. This is especially so in a jurisdiction, such as in the Seychelles, which has limited judicial and legal resources, together with significant budgetary constraints. In other words, issues of this kind must be considered in the real world and not that of the legal academy. In the end, the question to be asked is whether there was any significant risk that substantial injustice has occurred. We have concluded that no such risk to the integrity of the process occurred.

126. Focusing, therefore, on the substance of the matter, it is clear that the only attempt made by the Chief Justice to influence the appointment of members of the Tribunal related to her recommendation about and communications with Mr Guthrie. This was an appointment which could not have been criticised on any basis. His independence was patent and would have withstood public scrutiny. Even if, therefore, there was a theoretical possibility of an appearance of a conflict of interest, it was inconsequential. There was no risk of injustice nor of any apparent injustice. Furthermore, the hypothetical possibility of a conflict arising from the Chief Justice’s recommendation about Mr Guthrie was by no means anywhere near misbehaviour or misconduct which might place in question the Chief Justice’s ethical standing or personal or judicial integrity.

127. It follows that the Judge’s submission concerning this matter must be rejected.

128. The Judge also submitted that there were unsatisfactory (to use neutral language) features of the CAA’s consideration of the question of referral, focusing on what he alleges to be inconsistencies in or demonstrated by its minutes. These matters do not appear to concern the Chief Justice. Mrs Houraeau gave evidence about meetings of the CAA and the way in which the minutes were recorded. Nothing in her evidence raises in our minds any possible impropriety but this is not a matter relevant to our Inquiry. The Judge’s submission in this regard appears to be an attempt to litigate by collateral means the issues he seeks to raise in his court proceedings. For that reason as well, the Tribunal should not examine these issues.

129. The final issue under this head concerns a press release published on 10 October, 2016 by the CAA which was to the following effect –

“The Constitutional Appointments Authority wish to state that they have decided to set up a Tribunal of Inquiry to look into the ability of Judge Karunakaran to perform the functions of his office following complaints made to it. Such decision was made pursuant to Article 134 of the Constitution. We have also been informed that Judge Karunakaran has been suspended by President Michel, effective immediately, from performing the functions of a judge pending the decision of the Tribunal. The Chair of this Tribunal is former Chief Justice Egonda-Ntende.

We have been assured by Chief Justice Mathilda Twomey that the Court is making immediate arrangements to ensure minimal delays in case proceedings and to reduce the impact it has on any and all cases currently before the Court.

Further as this matter is now before the Tribunal of Inquiry and the matter is under investigation it would be inappropriate for the Authority to make any further comments.

The evidence of Mrs Houraeau was that she read the proposed press release over the telephone to the Chief Justice and asked her for “input on the Judiciary side”. The Chief Justice suggested an additional paragraph, which was inserted as the second paragraph in the above quotation. This was entirely proper, indeed, appropriate.

Conclusion

130. The overall conclusion of the Tribunal is that the evidence, either taken piecemeal or as a whole, does not disclose any misconduct or inappropriate conduct on the part of the Chief Justice. To the contrary the only conclusion reasonably open on that evidence is that she acted with complete propriety on all the occasions called into question. It follows that no action should be taken by the President under Article 134 of the Constitution in respect of the office of Chief Justice.

The Hon Michael Adams QC (President)

For the Tribunal and as authorised by the Hon Judge John Murphy and Hon. Chief Judge Emeritus Olufunmilayo O Atilade MCIArb FCArb

The Tribunal Rules of Procedure

1. The Rules are enacted to ensure that:

(a) all persons affected or likely to be affected by the findings (“interested persons”), recommendations or decisions of the Tribunal have full and fair opportunity to be heard; and

(b) the proceedings of the Tribunal are to be conducted as efficiently as practicably possible.

2. Subject to these Rules, the Tribunal shall follow the Seychelles Code of Civil Procedure with such modifications and adaptations as may be necessary.

3. The Inquiry is an inquisitorial process with the object, so far as is reasonably possible, to ascertain the truth about the facts relevantly placed before it for the purpose of reporting on them to the Constitutional Appointments Authority and recommending whether or not a Judge ought be removed from office for his or her inability to perform its functions.

4. The proceedings of the Tribunal shall be open to the public unless the Tribunal decides, in the public interest, that some part of the proceedings shall be in private hearing.

5. The Tribunal is empowered to ascertain the relevant facts and, accordingly:

(a) it has the power to require persons who may have knowledge of those facts to attend to give evidence as to them; and

(b) to require the production of documents (including electronic records) or things that may be relevant.

6. Every person who:

(a) refuses or omits, without sufficient cause, to attend at the time and place mentioned in the summons served on that person,

(b) attends but leaves the Tribunal without the permission of the Tribunal,

(c) refuses to be sworn or to make an affirmation or declaration, as the case may be,

(d) refuses without sufficient cause to answer, or to answer fully and satisfactorily, to the best of his knowledge and belief all questions put by or with the concurrence of the Tribunal,

(e) refuses or omits without sufficient cause to produce any books, plans or documents in his possession or under his control, and mentioned or referred to in the summons served on him,

(f) at any sitting of the Tribunal, wilfully insults any Member, or the secretary, or Counsel Assisting the Tribunal or wilfully and improperly interrupts the proceedings of the Tribunal, or be guilty of any contempt of any Member, shall be in contempt of the Tribunal and be dealt with according to law provided always that no person giving evidence before the Tribunal shall be compelled to incriminate himself or herself, and every such person shall, in respect of any evidence given by that person before the Tribunal, be entitled to all the privileges and immunities to which a witness giving evidence before the Supreme Court is entitled in respect of evidence given before that Court.

7. Issues shall be determined by at least two of the Members of the Tribunal.

8. Summonses for the attendance of a witness or production of a document or thing shall be in the form prescribed by the Code amended as appropriate, and provided by Counsel Assisting to the President for signature. Service shall be in accordance with the general law of the Republic of Seychelles.

9. The Tribunal is not bound by the laws of evidence and may receive evidence in whatever form it thinks it appropriate, giving the evidence such weight as it considers to be warranted provided that, unless there are good reasons for not doing so, it shall take evidence orally under oath or affirmation, giving interested parties (including, where relevant, Counsel Assisting) a fair opportunity of testing the evidence by cross-examination.

10. Persons interested may, by leave of the Tribunal, be represented by counsel.

11. (1) Persons interested may by leave of the Tribunal seek to have witnesses called before the Tribunal to give relevant evidence.

(2) Where a person interested seeks to have a witness called to give such evidence, (unless otherwise decided by the Tribunal) he or she is to provide a statement, signed by the witness, as to the evidence sought to be adduced to Counsel Assisting who shall apply for a summons for that witness’ attendance. A dispute, if any, as to the relevance of the proposed evidence will be determined by the Tribunal.

(3) Where a person interested seeks the production of any document or thing, the procedure specified in paragraph 11(2) is to be utilised, mutatis mutandis.

12. Counsel Assisting the Tribunal shall, unless these Rules otherwise provide or the Tribunal otherwise directs, sign, issue, and receive process for the Tribunal unless otherwise directed by the Tribunal, as well as lead evidence before the Tribunal.

13. (1) Subject to paragraph 13(2), the matters of complaint specified by the Resolution of the Constitutional Appointments Authority and the Consideration Report under which the Tribunal was instituted sufficiently set out the particulars of complaint requiring investigation by the Tribunal.

(2) On application by Counsel Assisting or a person interested, the Tribunal may give further particulars of the matters of complaint, providing that such particulars are consistent with or rationally connected to the substance of the matters determined by the Constitutional Appointments Authority as justifying investigation.

14. The Tribunal may give directions having the effect of a pro tanto amendment of these Rules, if it deems it necessary or desirable to do so and may give directions as to any matter of procedure not provided or not adequately provided for by these Rules.

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