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Tribunal report a damning indictment of Karunakaran.

The Tribunal of Inquiry set up to  investigate the conduct of Chief Justice Mathilda Twomey has concluded that the evidence presented to it, did not disclose any misconduct or inappropriate conduct and that on the contrary, she acted “with complete  propriety on all the occasions called into question.”

Such conclusion was not unexpected given the inconsistencies in Karunakaran’s allegations, totally lacking in substance and the deceitful nature of the present Constitutional Appointments Authority (CAA), which showed its compliance by responding favourably to five complaints made by him,  from June 26,2017 to March 6, 2018, concluding there was a “Prima Facie” case against CJ Twomey.
The Tribunal was set up by the LDS-dominated CAA in April this year, following complaints made by former Judge Durai Karunakaran and began its work in June.  
Testimonies and evidence produced at the Tribunal constituted a damning indictment of the former judge and foretold the conclusion.
 Karunakaran, was himself ousted on October 10, 2016, by former President James Michel, acting upon the recommendation of the then CAA for gross misconduct.
 His ouster was upheld by another Tribunal, chaired by former Chief Justice Frederick Egonda Ntende, meeting  in 2017 and  submitted its report in August that same year, finding that five allegations against him amounted to “gross and serious misbehavior.”
Karunakaran subsequently appealed before the Constitutional Court, claiming the constitution of the court to be unconstitutional, but failed again.
The Tribunal investigating CJ Twomey was chaired by Sir Micheal Adams, presently Chief Commissioner of the Law Enforcement Conduct Commission in New South Wales, Australia. He was assisted by John Murphy, a judge of the High Court in South Africa and Judge Olufunmilayo Atilade of Nigeria.
The present CAA received complaints fron Karunakaran, alleging misbehavior by CJ Twomey. The complaints made against CJ Twomey, pertain to abuse of authority of office, destruction of evidence, the institution of the Tribunal of Inquiry and publicizing its report.
The Tribunal, which began its work early June 2018 heard from the Supreme Court Registrar Francois Octobre, whose case had been before Karunakaran since 2002, Principal Secretary for Information Technology, Benjamin Choppy, the former Chairperson of the CAA, Marie-Ange Hoareau and CJ Twomey.

Abuse of authority of office.

President Michel suspended Durai Karunakaran  as judge at about 9 am on October 10, 2016, with “immediate effect.” The Tribunal noted that the suspension was authorized under Article 134 (4) of the Constitution. The letter of suspension was sent to the judge by messenger to the Palais de Justice and copies were also provided at the same time  to the Chief Justice, the chairperson of the CAA and the Attorney General.
Karunakaran testified that he was in court hearing a civil case, when he became aware that an envelope had been delivered for his immediate attention. The messenger had given it to the court orderly to take to the judge.
Karunakaran said that upon retiring to his office to consider the letter, 20 minutes later he received the memorandum addressed by CJ Twomey requesting him to hand over all the files immediately and also to surrender the keys to his office.
CJ Twomey testified that the first she knew of the suspension was when she received a copy of the President’s letter. She then called Registrar Mrs. Esticot, asking her to go to the judge’s chambers  to  find out if he had been informed of  the  suspension, collect his keys and begin the handover process.
Mrs. Esticot  returned shortly afterwards, stating that the judge  had said that the CJ should come herself. To avoid a confrontation, CJ Twomey wrote a memorandum directing him to hand over the files and office keys.
After considering the sequence of events that day, the Tribunal  concluded that the CJ was fully entitled  to request the judge  to hand over the files and keys upon his suspension, since  the effect of his immediate suspension was to relieve him of his  rights and duties as an active judge.
As  the  person responsible for the administration of the judiciary, it was “both  lawful  and  appropriate” that the CJ took possession both of  the files and the keys  to the judge’s chambers.
Karunakaran also complained that, on the same day, access to his court computer and consequently, access to his personal emails was blocked.     
“Mr. Benjamin Choppy testified that on October 10, 2016, he got a call from the CJ  who informed  him that the judge had been suspended from his duties and she was concerned  that he might remove or delete  emails from his mailbox, which could be a source of evidence.
  In order to mitigate the risk, access to the judge’s account had to be removed  and this was done the same day. At no point did the CJ seek access to the backup memory, and even if she had done so, Mr. Choppy would not have allowed it.
The Tribunal found that regrettably, the judge was unable to view with any objectivity the true significance of the actions of the CJ.” Indeed, it is fair to say that his complaints about her were typically expressed in immoderate terms, making serious allegations on the slightest evidence, which when examined, did not at all justify the language he chose to use. … This unfortunate and pervasive lack of objectivity, makes it difficult to accept, without any supporting evidence, any of his assertions of disputable facts.”

Destruction of evidence.

This relates  to what  Karunakaran  asserted  was a written judgment which he had written in the case of Francois Octobre Vs/ Seychelles Government, which arose out of an accident in 2002. According to his version, he was ready to deliver the judgment  before he was suspended, which the  CJ discarded, and obtaining  the consent of the parties to consider the case, issued a judgment of her own, differing from his.
It was also suggested that the Chief Justice had an improper motive in taking over the case, which was to favour Octobre, in anticipation that he might testify against the judge in the 2017 Tribunal proceedings.
In his letter to the CAA, the judge asserted that he “compiled and typed the judgment himself… in mid-September 2016.”  This however, was not the case.  A  technical examination of the  electronic copy  of the judgment, provided by the judge, showed  written submissions from  the defendant, dated September 17 2016, had been received on September 29, 2016, but no submissions had been  received on behalf of the plaintiff, Octobre!
However, in his evidence before the Tribunal, Karunakaran asserted several times that he signed the judgment following his suspension. The Tribunal concluded  that  he had not completed his judgment  before his suspension.
Testifying before the Tribunal about this matter, Octobre stated that he had indeed sought to complain about his case, which had dragged on since 2002, but did not raise the money awarded by the court as damages.
He said these complaints had not been addressed to the Chief Justice directly, but to her office. At no stage had he spoken directly with the Chief Justice. He had only ever seen her in court.

Publication of the Tribunal’s report

The report of the Tribunal into the conduct of Judge Karunakaran was presented to President Danny Faure on August 28, 2017. It is not disputed that the President did not act upon the report after receiving it.  
The Chief Justice testified that she received a copy on August 25, from members of the Tribunal. The tribunal had conducted its proceedings in public and she had no reason to believe that it was not in the public interest that it should be published.  
Karunakaran argued that she had overstepped  her  mandate in publishing it.
The CJ said that she considered that publication of the Tribunal’s report met the criteria for publication on the SeyLii site. She sought the advice of her executive legal assistant Ms Joelle Barnes, who agreed that the report should be published, particularly as there was widespread speculation about its contents.
The members of the Tribunal had no objection about the contents of the report and it was uploaded on the SeyLii website on September 27.
Later that day, her office was contacted by the Seychelles Broadcasting Corporation (SBC). In the course of the SBC interview, she referred to the fact that President Faure had not yet made the report public. This was a factual assertion and did not imply any criticism of the President.
The Tribunal held that 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 the report. In exercising this responsibility, she was not directing the President as to how he should  exercise his constitutional duty.”

Attempting to influence Tribunal appointment

Karunakaran submitted that CJ Twomey’s request to Judge Guthrie of the Commonwealth to serve on the Tribunal was political.
The Tribunal did not accept that the CJ was legally and ethically bound by the posited conflict of interest to decline to assist the former CAA in identifying appropriate members of the potential tribunal.
The then chair of the CAA, Mrs. Hoareau, gave evidence to the Tribunal  about her communications  with the CJ about the proposed enquiry and the Tribunal examined the relevant correspondence and found there is nothing  to support a suggestion  that she  exercised  improper  or inappropriate influence over the chair of the CAA. She made reasonable suggestions and these were adopted.
The tribunal found that it was both reasonable and proper for the CJ to have proposed Mr. Guthrie for membership of the Tribunal and enquire about his availability. However, it was also wise   to avoid involvement in the selection of particular members.
She did provide some assistance by way  of  contact details,  but  this  cannot be criticized.  Her email  withdrawing from  involvement, was, the Tribunal noted, also sent to the Attorney General.

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