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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No: CV 2012 - 03205

BETWEEN

(1) Dr Wayne Kublalsingh

(2) Riaz Nigel Karim

(3) Elizabeth Rambharose

(4) Ramkaran Bhagwansingh

(5) Malcolm Mohan

(6) Ameena Mohammed

on their own behalf and on behalf of the

members of the Highway Reroute Movement

Claimants

AND

The Attorney General of Trinidad and Tobago

Defendant

Before the Honourable Mr Justice James C. Aboud

Dated: 15 January 2014

Representation

For the claimants: Mr R. L. Maharaj SC and Mr F. Hosein SC leading Mr R. Dass and

Ms V. Maharaj instructed by Mr. A. Maraj

For the defendant: Mr R. Martineau SC and Mrs D. Peake SC leading Mr S. Roberts, Mr

G. Ramdeen, Mr K. Ramkissoon, and Ms K. Bello instructed by Ms P. Alexander, Ms A.

Ramroop and Mr E. Silva of the Chief State Solicitor’s Department

DECISION

1. Before me is an application made by the Attorney General that I should recuse myself from

hearing the claimant’s application for constitutional relief. The ground of the application is

apparent bias. The allegation is not that I am biased, but rather that there is a real possibility

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in the minds of fair-minded and informed members of the public that I will be. The

application revolves around the activities of my brother Gary Aboud, the secretary of an

environmental group called “Fishermen and Friends of the Sea” (“FFOS”).

History of the proceedings

2. The claimants sue on their own behalf and as representatives of the Highway Reroute

Movement (“the HRM”). The HRM was formed in 2011 and represents people who say that

they will be adversely affected by the construction of a section of a major highway

connecting the city of San Fernando and the borough of Point Fortin. The section in dispute

is the one linking Debe to Mon Desir. Certain events took place in June 2012 at a camp set

up by the HRM. The camp was allegedly destroyed by Army officers and members of the

HRM were assaulted. The claim form, which was filed on 3 August 2012, seeks a

declaration that the construction of the questioned section breaches the claimants’

constitutional rights as it contravenes certain assurances allegedly made by members of the

government. Declarations are also sought that the decision to build the questioned section is

a breach of their legitimate expectations, and that the destruction of the HRM camp, the

installation of an Army camp, and the arrest and detention of Dr Kublalsingh, the leader of

the HRM, was illegal and unconstitutional.

3. The activities of the HRM and the filing of the claim created considerable public interest and

debate. Some 55 affidavits were filed, and the litigants are represented by batteries of

Senior and Junior counsel and instructing attorneys on both sides. In plain language, the

matter is a heavy one requiring considerable resources by the litigants and the court.

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4. Three previous judges were assigned to hear and determine the claim, and they all recused

themselves. One gave a reason that is recorded on the court file, but the basis of the other

two recusals is not recorded. The assignment of judges to hear civil cases is done randomly

by a computer operated by the court office. Each matter is assigned a weight of 1 to 5, the

“heaviest” matter being “5”. In randomly selecting a civil judge the computer is

programmed to select judges based on the weight of the matters assigned to them in any

given month, so that of the roughly 35 new matters assigned each month to individual judges

one judge will not be given a disproportionate number of weight 5 cases. This is a system

designed for efficiency in the disposal of cases: the case load of individual judges is more or

less evenly balanced to allow them an equal chance to expeditiously complete their matters.

The first recusal application

5. On 29 November 2012 Senior Counsel for the Attorney General gave notice that his client

intended to make an oral application for me to recuse myself. He said that Gary Aboud had

made public statements calling for the halt of the questioned section. The court was invited

to recuse itself voluntarily, but, on the basis of the matters disclosed in the oral application, I

did not do so. Instead, I gave directions for the filing of a proper written application

supported by evidence and written submissions by both parties. A short adjournment of six

days was given.

6. Instead of filing an application the defendant wrote a letter to the Registrar setting out his

grounds. In my view this is not an ideal process as a letter is not a proper vehicle to adduce

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evidence that can be tried and tested, whether by the sitting judge or by a court of appellate

jurisdiction reviewing his decision. However, this procedure was said to diminish the

possibility of any public controversy associated with these types of applications. The nub of

the defendant’s application was that Gary Aboud, as a leading environmentalist, had

expressed views in support of Dr Kublalsingh and that “it was a matter of public record that

His Lordship and his brother are members of a very prominent, very close knit local family

which is often in the news.”

7. A number of items of information was said to be in the public domain “and within the

knowledge of the average member of the public:”

Gary Aboud is a passionate environmentalist who has carried out

environmental campaigns “of the same, if not identical, nature to that of

the claimants.”

He has publicly made a call for the identical relief that is being sought in

these proceedings and an independent review of same.

He was openly sympathetic to the plight of Dr Kublalsingh during his

hunger strike.

As Secretary of FFOS, Gary Aboud has publicly aligned himself to the

cause of the claimants and has issued a written public statement to that

effect.

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Consideration of the assertions made in the 2012 application

8. The 2012 letter to the Registrar referred to a newspaper article published in 2000, headlined

“Gary Aboud, Environmental Warrior” with the sub-heading “Battle to Save Invaders Bay.”

The writer gave a profile of his subject and briefly described the activities of FFOS to halt

the reclamation of certain wetlands at Invaders Bay. Also attached to the letter was a copy

of a press release dated 25 November 2012, signed by Gary Aboud as secretary of FFOS

(“the FFOS release”).

9. The FFOS press release was issued after this matter was assigned to me. At the time it was

issued Dr Kublalsingh had been on a hunger strike for approximately two weeks, camped

outside of the Prime Minister’s office. He was calling for a technical review of the decision

to build the questioned section. Pictures of his emaciated body were carried daily in the

press and many individuals and groups had issued statements sympathetic to his worsening

health and calling for a technical review of the decision. The FFOS press release was

written generally in the same vein. In a nutshell, it called on the government to conduct a

technical assessment with members drawn from the responsible government ministry and

the HRM, and chaired by an expert in the field of dispute resolution. This was advanced as

a means of getting Dr Kublalsingh to end his hunger strike and so save his life. Importantly,

the FFOS press release did not express any opinion as to whether it supported the re-routing

of the highway or the recession of the decision to build the questioned section: “The re-

route movement may not be right, but they are entitled to an independent assessment of their

objections/alternatives ...”

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10. The FFOS press release also contained some veiled criticism of the mechanics of the

campaign of the HRM and Dr Kublalsingh: “No doubt, poor communication and an

awkwardly managed campaign have created a sense of hopelessness for Kublalsingh, with

little national support, and with a range of public misunderstandings, he has been swept into

the waste paper bin of public opinion, where a range of public figures, some with nebulous

motives, have been joyfully riding and kissing on his bandwagon.” The FFOS press release

acknowledged and sympathised with the government’s dilemma: “While we can understand

the reluctance of a government to respond to every hunger striker, lest tomorrow 500

activists (including FFOS) with 5,000 separate issues turn up on the Prime Minister’s door

step, there is no excuse for traumatising the entire nation with the spectacle of an activist

having to take extreme measures and risk his life ...”

11. Looked at in the round, the information in the public domain did not support the gloss put on

it by the defendant’s Senior Counsel. The activities of Gary About and FFOS in protesting

the reclamation of Invader’s Bay in 2000 did not support the contention that Gary Aboud

had “adopted the cause” of Dr Kublalsingh in 2012. The newspaper profile described a

committed environmentalist, but one engaged in a cause quite different from that of the

HRM (which would not be formed until 11 years later). The mere fact of his environmental

activism was insufficient to operate as a merger of his persona with that of Dr Kublalsingh.

If such merger could take place on the basis of the assertions in the 2012 letter, then political

activists could also be said to have adopted the same cause, irrespective of their individual

politics.

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12. Moreover, the 2012 press release, as I understood it, was a plea to the government to stop

traumatizing the nation with the slow death of Dr Kublalsingh. It was guarded as to whether

the HRM was right to demand the re-routing of the highway and offered a solution to the

dilemma that was designed to save the life of an individual rather than adopt his cause. The

solution offered to resolve the dilemma appears to have been ignored. A committee was

eventually appointed, but was not constituted like the FFOS suggested and its terms of

reference were much wider. It should be pointed out, as well, that many disparate public

interest groups and individuals also made pleas for government intervention to stop the

deleterious hunger strike, among them a contractors association, a famous masman, and a

member of the clergy.

13. On 6 December 2012 the defendant’s application was refused. I delivered an oral decision,

relying in the main of the dicta of Madame Justice Margot Warner JA and Mr Justice Ivor

Archie JA (as he then was) in Panday v Virgil C.A. Mag. App 75 of 2006, dated 4 April

2007. As all the principles of law involved in the 2012 application are identical to those in

the present application I will fully set them out later in this decision.

Events since the disposal of the 2012 application

14. There was no appeal from the 2012 decision. Instead, both parties engaged themselves in

the process of case-management to get the constitutional claim litigated and resolved.

Further affidavits were filed. I should mention that this process was obstructed by the

holding of a Commission of Inquiry into certain financial institutions. It engaged the

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attention of counsel and led to several long adjournments over which the court had little

control.

15. In July 2013, during the course of case-management, certain events occurred on or near to

the questioned section of the highway. The construction company is said to have mobilized

its crews. The claimants then filed an inter partes application seeking, among other things,

an urgent interim injunction or conservatory order to stop all construction on the questioned

section. Further directions were given for the determination of the injunction application.

Affidavits were exchanged on both sides, followed by written submissions. Three full days

were set aside for oral argument. At the conclusion of the presentation of the claimant’s

arguments a day was set aside for the defendant’s oral arguments in opposition. That was 13

November 2013. On 12 November 2013 certain events took place in the vicinity of the

temporary Houses of Parliament, in particular in the area known as the Waterfront, Port of

Spain. These events involved Gary Aboud engaging in protest action and being arrested as a

result. The protest was held to oppose certain seismic surveys (or “bombings” as they are,

perhaps inaccurately, described) on the sea bed in the Gulf of Paria. The survey was to be

carried out by Petrotrin, a company wholly owned by the government, with a view to

discovering deposits of oil and natural gas.

16. On the following morning, while I was preparing to preside in the court my Judicial Support

Officer informed me that the attorneys in the matter needed to see me in my chambers. She

said that they wanted to discuss a private matter. I asked her which of the attorneys and she

said all of them, numbering over a dozen. Realising that my chambers were too small I

asked her to try and find an available conference room. Eventually one was found. I

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entered the room regarding it as an extension of my chambers. I did not carry the court file

or my judge’s note book nor did I (or any of the attorneys) request that the FTR recording

device be activated. The matter was not “called.” No litigants were present.

17. Mr Martineau began by saying that the arrest of Gary Aboud while engaged in an

environmental protest called into question my continuing to sit in judgment of the matter.

He said that the protest and the arrest were carried on the nightly news on the night before. I

told him that I was in my office at 7 pm but I had been informed by another brother that it

would likely be carried on the 10 pm news. I told Mr Martineau that when I switched to the

news channel the night before I did not see the telecast. Mr Martineau told me that his client

had instructed him that, on the basis of the telecast, and the newspaper reports of that

morning, I ought to recuse myself. I told Mr Martineau that I had not read the papers as yet,

nor seen the news broadcast, but that the full facts would need to be discovered and analysed

before any decision could be made. If I remember correctly, Mr Martineau said that he

himself had not seen or studied the telecast. I told him that, if he wanted, he could adduce

any video footage in the public domain that he felt important.

18. I recall expressing that while I was driving to court I thought to myself that Gary Aboud’s

behaviour might prove embarrassing to me and that the defendant’s attorneys might be

disconcerted. However, I expressed the view to Mr Martineau that on the basis of the little I

knew of what was broadcast the night before, and what was in the daily newspapers, Gary

Aboud’s actions did not appear to be proper grounds for recusal nor could the events

interfere with my functions as a judge. I was certainly sensitive to the concerns of Mr

Martineau, who I regard as the leading silk in the country, and also somewhat frustrated by

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the prospect of another recusal application on virtually the same grounds as the one made a

year earlier. I told him that such applications should not be made on the instructions of a

client but only in discharge of his superior duty to the court. He indicated that he shared his

client’s views.

19. At the end of our meeting I told the attorneys that court would be convened in 10 minutes

and that I would there give directions for the determination of the intended application. In

the courtroom, no specific directions were given for the filing of an application as Mr

Martineau indicated that it was more appropriate to write a letter to the Registrar. The

defendant was asked, therefore, to communicate with the Registrar and directions were

given to the claimants’ attorneys to respond.

2013 recusal application

20. On 18 November 2013 a letter signed by Ms Petal Alexander, an attorney attached to the

Chief State Solicitor’s department, was delivered to the Registrar. It set out the defendant’s

arguments as to why I should recuse myself. The defendant also filed an affidavit by one

Kimal Roopnarine, an employee of the Ministry of Food Production. In it, he says that he

was in the vicinity of the Waterfront protest and he heard persons in the crowd chanting “No

bombing, no highway we will stop the bombing and we will stop the highway.” On 25

November 2013 the claimants filed a joint affidavit sworn by Bhadose Sooknanan (Vice

President of the Claxton Bay Fishermen’s Association), Diane Christian-Simmons

(President of the Cocorite Fishing Facility) and Cecil Mc Lean (Vice President of FFOS). In

their joint affidavit the officers of these fisher folk organisations dispute Mr Roopnarine’s

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assertion that there was any chanting related to the construction of the highway. They say

that they had organised their protest a week before with placards and that their organizations

were solely concerned with the seismic survey to be undertaken in the Gulf of Paria. They

also state that they are not affiliated with the HRM or any of the claimants in their action.

The claimants also filed an affidavit by Instructing Attorney, Mr Anil Maraj, which set out

the record of the 2012 recusal application.

21. On 26 November 2013 the defendant filed an affidavit sworn by Ms Andella Ramroop, an

Attorney in the Office of the Chief State Solicitor. Ms Ramroop states that she was present

in chambers when the Attorneys visited me on 13 November 2013, and that she had made a

note at the meeting. She attached a copy of Ms Alexander’s letter delivered to the Registrar

on 18 November 2013. Presumably, the contents of Ms Alexander’s letter, insofar as they

purport to record what was said in the conference room, are based on her notes, but she

doesn’t say so. That is a matter of inference, which I will accept. Her affidavit attaches a

series of newspaper clippings and video footage (contained on DVDs) that capture events at

the Waterfront and on days that followed. Among the attachments are all the newspaper

stories exhibited to the 2012 recusal application. In relation to the events at the Waterfront,

there is an interview with Gary Aboud on CNC3’s “Morning Brew” program, as well as a

number of news stories in the print media. In one particular video segment the protest is

captured without any editing in what seems to be a continuous 13 minute “live” recording.

It originated out of a CNC3 live transmission.

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22. This then was the evidence before the court. Before analysing it, I pause to comment on that

part of Ms Alexander’s letter that purports to be a record of what was said in the conference

room. Without the benefit of my notebook or an FTR transcript I can only rely on my

memory. There are statements attributed to me that I recall saying, and others that I do not.

There are also things that I recall saying that are excluded. Some statements are incorrectly

interpreted or taken out of context. For example, on the morning after Gary Aboud’s arrest I

made no effort to contact him, as I told the lawyers, but this was because he was a person

charged with an offense, intended to be taken before a magistrate that very morning. My

position would be the same for any person who is brought before the courts, whether or not

he is a relative. In Ms Alexander’s letter this statement was incorrectly interpreted to signify

that I did not contact Gary Aboud that morning out of concern of being exposed to his views

on the case before me. That is totally incorrect. The impression created by Ms Alexander

(whose attendance at the conference I cannot certify) is that I had virtually conceded that the

events involving Gary Aboud had compromised my role as a Judge. If that were so I would

not be delivering this judgment today, for I would have recused myself on 13 November

2013 without the need for any application. All the facts surrounding Gary Aboud’s actions

and arrest were unknown and everything that was said was based a bare-bones

understanding of what was telecast the night before and in the morning papers. I very much

regret that I did not formally call the matter in a courtroom, or, at least, either keep a note or

used the FTR recording device. It would have avoided any misunderstanding as to what

transpired in the conference room that served as my chambers. In future, I will do so in any

case involving recusal. It would have been a courtesy to the court to advise that a record of

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a discussion in the Judge’s chambers was needed, or was being kept by one of the parties.

However, the fault was mine for not requiring that a proper record was kept.

23. In any event, as I will explain below, the test for apparent bias is an objective one to be

determined from the point of view of the fair-minded and impartial observer. No observer

was inside the judge’s chambers. The purpose of the visit, as I understood it, was to

preserve confidentiality in raising a sensitive matter and to first discuss the matter in private.

It was not to garner information to later make out a case for recusal in open court. All the

facts relevant to the application were said to be already in the public domain. To my mind

the exercise was therefore one of discovering those facts and then analysing how the

observer would perceive them. Moreover, what a judge says about his state of mind in

relation to those facts in the public domain is not relevant. His concerns about the particular

fact situation, or even his declarations of impartiality, are irrelevant to the determination of

applications of this type. In this regard see Locabail (U.K.) Ltd v Bayfield Properties Ltd

[2000] QB. 451 at [19].

24. With respect to the allegation that the protesters were chanting anti-highway slogans at the

Waterfront, there is insufficient credible evidence to support such a finding, even on the

defendant’s evidence. There is no evidence of such chanting in the edited or unedited video

footage. I have played and re-played the video recordings. The placards shown in the video

footage and in the newspaper photographs are concerned solely with the seismic survey.

There is no evidence of Gary About making any anti-highway statements at the Waterfront.

Mr. Roopnarine doesn’t say whether the unnamed persons he heard say those words were

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members of FFOS or one of the other fisher folk organisations involved in the protest, or

indeed, whether they were mere by-standers or agents provocateur. His evidence is, in any

event, contradicted by the joint affidavit of the officers of the three fisher folk organisations.

There was no cross-examination of any affidavit evidence so the matter is left to one of bare

probabilities. In my view the allegation that Gary Aboud personally, or as secretary of

FFOS, organized a demonstration with the intended (or even oblique) purpose to protest the

construction of the highway has not been proven. In so far as persons were alleged to have

said certain things, assuming that they were in fact said, there is no nexus between the

unidentified persons and Gary About or FFOS. In any event, on the basis of the

contemporaneous video and photographic evidence, there is no public awareness of such a

nexus, save the uncorroborated assertion of the lone Mr Roopnarine.

25. The grounds of the defendant’s application for recusal, as gleaned from the 2013 letter and

the written submissions, can be stated like this:

(1) Gary Aboud is a prominent environmentalist and he is “a close friend” of Dr

Kublalsingh, who is described as “a fellow environmental activist.”

(2) He is similarly circumstanced to Dr Kublalsingh for these reasons:

(a) He issued a press release on behalf of FFOS in November 2012

calling on the government to appoint a committee of experts during

the height of Dr Kublalsingh’s hunger strike. The press release

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called for the stoppage of construction pending the an assessment by

a committee of experts.

(b) In light of the 2012 FFOS press release he “adopted the cause” of Dr

Kublalsingh.

(c) The cause of FFOS is identical to Dr Kublalsingh’s cause for these

reasons:

(i) Both causes are fronted by men who are passionate to

the point of risking arrest.

(ii) Both men were arrested by officers of the law and

both say they suffered personal injury.

(iii) Both men called upon the government for a technical

review and both criticised individual members of the

government.

(iv) Dr Kublalsingh has brought a case to court arising out

of the construction of the highway and Gary Aboud

has said in the press that he is contemplating the filing

of an action to stop the seismic surveys (which were

due to take place on 1 December 2013).

(v) The cause that Dr Kublalsingh is pursuing in re-

routing the highway is identical to FFOS’s cause in

the Gulf of Paria. (In the words of Mr Martineau in

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his oral submissions, “It’s one movement: the

environmental movement”).

(vi) The issues to be decided in the HRM claim will be

identical to those of FFOS, should they in fact sue.

(d) The relationship between Gary Aboud and me is “very close”

because “it is well known that His Lordship’s family is very closely

knit.”

(e) Gary Aboud will be very anxious to see how Dr Kublalsingh’s case

is resolved as it will affect the outcome of his own case, should one

be filed.

(f) Members of the local community will be suspicious if the claimants

win their case at first instance.

26. For these reasons, it is said that I should recuse myself on the grounds of apparent bias.

The law of bias generally

27. The source of this area of the law is encapsulated in the ancient natural justice maxim Nemo

Judex in re Sua: “No man a judge in his own cause.” From this injunction flowed the

principle that wherever a judge had an interest, whether pecuniary or non-pecuniary, in a

party before him or her it would raise the prospect of automatic disqualification. Eventually,

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through the democratization of the judicial system, the principle was extended to include

situations of apparent, and not only actual bias. (“Justice should not only be done, but

should manifestly and undoubtedly be seen to be done”: R v Sussex Justices, Ex parte Mc

Carthy, per Lord Hewart CJ).

28. Automatic recusals occur in cases involving actual bias. This involves the reality that the

judge, by his interest in the outcome of the case through a connection with one of the parties,

will not have an open mind, or that he or she will unfairly favour or disfavour a party’s case.

There is no specific test for automatic recusal, as the facts will often speak for themselves.

The defendant has not asserted actual bias in these proceedings. The allegation is one of

apparent or unconscious bias.

Apparent bias

29. The modern test for apparent bias is set out in Porter v Magill [2002] AC 57 where Lord

Hope endorsed the approach of Lord Phillips MR in Re Medicaments (No 2) [2001] 1 WLR

700 at [85]:

“The court must first ascertain all the circumstances which have a

bearing on the suggestion that the judge was biased. It must then

ask whether those circumstances would lead a fair-minded and

informed observer to conclude that there was a real possibility, or a

real danger, the two being the same, that the tribunal was biased.”

The question of apparent bias is therefore to be assessed from the objective perspective of

the fair-minded and informed observer, and not from the subjective perspective of the court.

Further, the threshold is a “real possibility” of bias and it is a threshold to be evaluated as

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having been crossed in the mind of the fair-minded and informed observer. This approach

democratizes the evaluation process in the mind of the judge who is asked to decide whether

or not a case of apparent bias is made out. In our system of justice the application is made

directly to the judge in question, and not to another judge. The exercise often tests a judge’s

ability to distance himself from the issue to be decided, but that is the mental training that a

judgeship involves. There is no practice direction in the CPR governing these applications

and perhaps the time has come to consider its usefulness. When a sitting judge must himself

evaluate the possibility of his own potential bias he or she must scrupulously apply this

objective test, focussing exclusively on the mind of those members of the public that are

fair-minded and informed. A judge’s own understanding of how his mind operates, or the

self-imposed injunctions of his oath of office, are irrelevant.

30. The general principle is that the question of whether there is apparent bias is a matter for the

court to determine; the views of the parties are not relevant (BAA Ltd v Competition

Commission [2010] EWCA Civ. 1097; [2011] UKCLR 1). The characteristics of the

fictional fair-minded and informed observer have been fully examined in the case law and

this person is, to put it mildly, a model citizen. One commentator described him as

possessing the attributes of the Archangel Michael.

31. These are some of the characteristics of this model citizen, as gleaned from the case law:

(a) “The attributes of a fictitious bystander to whom the courts defer have therefore

been variously stated. Such a person is not a lawyer. Yet neither is he or she a

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person wholly uninformed and uninstructed about the law in general or the

issue to be decided. Being reasonable and fair-minded the bystander, before

making a decision important to the parties and to the community, would

ordinarily be taken to have sought to be informed on at least the most basic

considerations relevant to arriving at a conclusion founded on a fair

understanding of all the relevant circumstances. The bystander would be taken

to know commonplace things, such as the fact that adjudicators sometime say,

or do things that they might later wish they had not, without necessarily

disqualifying themselves from continuing to exercise their powers...The

fictitious bystander will also be aware of the strong professional pressures on

adjudicators (reinforced by the facilities of appeal and review) to uphold

traditions of integrity and impartiality. Acting reasonably, the fictitious

bystander would not reach a hasty conclusion based on the appearance evoked

by an isolated episode of temper or remarks to parties, or their representatives,

which has been taken out of context. Finally, a reasonable member of the

public is neither complacent nor unduly sensitive or suspicious” (Margot

Warner JA in Panday v Virgil, adopting the dicta of Kirby J in the Australian

case of Johnson v Johnson 74 AL 1380 (which was also approved by Lord

Steyn in Lawal v Northern Spirit [2003] UR&L 35)).

(b) “The fair-minded and informed observer would be a person who espouses

human rights values so that fairness would be his or her primary concern. He

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would approach the task with caution and would begin by placing great weight

on the judicial oath of office.” (Margot Warner JA in Panday v Virgil).

(c) “Being fair-minded he always reserves judgment on every point until he has

seen and fully understood both sides of the argument. He will therefore not

come to a hasty conclusion...He is informed. He can distinguish between what

matters are relevant and what are irrelevant. He will take the time to inform

himself on all matters that are relevant. He is able to determine what weight

should be given to facts that are relevant. He is able to put whatever he has

read or seen into its overall context and will appreciate that context forms an

important part of the material which he must consider...He will assume that a

judge, by virtue of his or her office is intelligent and will be able to inform his

or her own views and be capable of detaching his or her own mind from things

that he does not agree with and is aware of the legal traditions and culture of

this jurisdiction and of those legal traditions, and that that culture plays an

important role in ensuring the high standards of integrity on the part of the

Judiciary.” (Mendonca JA in Panday and Anor v Her Worship Ms Ejenny

Espinet Civ App 250 of 2009).

(d) “Such an observer will adopt a balanced approach” (Lawal).

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(e) “The sort of person who always reserves judgment on every point until she has

seen and fully understood both sides of the argument.” (Helow v Secretary of

State for the Home Department [2008] 1 WLR 2416, per Lord Hope).

(f) He will know that judges are trained to have an open mind (El-Faragy v El-

Faragy and Ors [2007] EWCA Civ 1149, per Ward LJ).

(g) He will “be aware of the traditions of judicial integrity and of the judicial oath”

and “will give it great weight” (Robertson v HM Advocate [2007] SLT 1153).

32. In Panday v Virgil Archie JA said this at 4:

“8. The test is one of possibility (capable of existing; real and not

remote) and not probability (more likely than not) (per Gleeson

CJ in Ebner v The Official Trustee in Bankruptcy (2000) 205

CLR 337). The words “fair-minded” and “informed”

summarize the characteristics that are to be imputed to the

hypothetical observer ...

9. The fair-minded observer is neither complacent nor unduly

sensitive or suspicious when he examines the facts that he can

look at (Johnson v Johnson). That is a critical caveat in a

society such as ours that is deeply polarised and where

conspiracy theories abound. The proper point of departure is

the presumption that judicial officers and other holders of high

public office will be faithful to their oath to discharge their

duties with impartiality and in accordance with the constitution

(Jones v Das Legal Expenses Insurance Co. Ltd. [2003]

EWCA Civ. 1071). The onus of rebutting that presumption

and demonstrating bias lies with the person alleging it. Mere

suspicion of bias is not enough; a real possibility must be

demonstrated on the available evidence.

12. It follows that the informed observer, if he is also fair-minded,

will choose his sources of information with care.

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33. In Locabail at 480 Lord Bingham postulated a series of situations that would not ordinarily

involve apparent bias:

“It would be dangerous and futile to attempt to define or list the

factors which may or may not give rise to a real danger of bias.

Everything will depend on the facts, which may include the nature

of the issue to be decided. We cannot, however, conceive of

circumstances in which an objection could be soundly based on the

religion, ethnic or national origin, gender, age, class, means or

sexual orientation of the judge. Nor, at any rate ordinarily, could

an objection be soundly based on the judge’s social or educational

or service or employment background or history, nor that of any

member of the judge’s family...”

The logic of the defendant’s argument

34. The logic behind the recusal application could be summarised like this:

(a) Dr Kublalsingh and Gary Aboud are environmental activists.

(b) Both are similarly circumstanced in the respects set out above, and, in any

event, they are members of one movement, “the environmental movement.”

(c) Therefore, their causes are identical.

(d) Therefore, Gary Aboud has an interest in the litigation at bar, and has

“adopted” Dr Kublalsingh’s cause.

(e) Therefore, the judge, (who has no interest in the cause of the HRM) should

recuse himself.

35. Mr Martineau SC and Mrs Peake SC relied heavily on the case of R v Bow Street

Stipendiary Magistrate and Ors, Ex parte Pinochet Ugarte (No.2) [2000] 1 AC 119 to

reinforce the point of “adoption of a cause.” Pinochet involved an extradition request for

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General Pinochet, who had been accused of crimes against humanity. Amnesty International

(“AI”) was given leave to intervene. AI argued that General Pinochet should be extradited.

The case went on appeal to the House of Lords. Lord Hoffman was a member of the panel.

After the decision it was discovered that Lord Hoffman was a director of Amnesty

International Charity Ltd (“the AI Charity”), a body which provided funding for AI. The

role of the AI Charity was fully investigated at an application before the full court to set

aside the earlier decision. It was revealed that the AI Charity had commissioned another

associated entity, Amnesty International Limited (AI Ltd) to prepare a report on crimes

alleged to have been committed by General Pinochet. This report had been submitted to AI,

the party in the litigation before the House of Lords, and it formed part of AI’s case for

extradition.

36. It was as a result of these connections linking Lord Hoffman to the litigant that the House of

Lords decided that he shared an interest with and was involved in the promotion of the same

cause as a party to the litigation. The House of Lords, however, was careful to point out that

a judge’s affiliation with a cause or support for a charity would not be sufficient grounds for

recusal: “Only in cases where a judge is taking an active role as trustee or director of a

charity which is closely allied to and acting with a party to the litigation should a judge

normally be concerned either to recuse himself or disclose the position to the parties” (per

Lord Browne-Wilkinson at 136).

37. It must be remembered that Pinochet was a case that involved a question of automatic

disqualification, and not one of apparent bias, which is the application before me.

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Nonetheless Mr Martineau SC sought to persuade me that the fact situation in Pinochet

could be applied here. He submitted by way of analogy that the HRM could be substituted

for AI, that Gary Aboud could be substituted for the AI Charity and that I could be

substituted for Lord Hoffman. This, of course, is fallacious reasoning. Unlike the units in

the legally interlocking AI network there is no evidence that Gary Aboud/FFOS are

connected to the HRM. They may share similar ideals but the same could be said of

shopkeepers on a city corner, or member states in the United Nations. There is no evidence

of any organisational link between the HRM and FFOS. There is no joint manifesto or

shared constitution

38. The linkage between Gary About and I being filial, Mr Martineau submitted that this was

akin to the link between Lord Hoffman and AI. He equated my relationship with Gary

Aboud (a non-party to the litigation) to that of Lord Hoffman, who was a director of a

company that was legally connected to and involved in the same cause as AI, a litigant. In

his view blood, apparently, runs as thick as the literal and figurative bindings of articles of

incorporation. This second proposition is, again, fallacious reasoning. Firstly, it depends on

the incorrect first proposition that the HRM and FFOS are parts of the same umbrella

organisation. Secondly, I am not a director or trustee of any organisation linked to the

HRM, or indeed FFOS (assuming that the first proposition was correct). There is no

evidence to support these propositions.

39. Nowhere in the Pinochet judgment is it said that by his philosophical support of the goals of

AI (for example, the worldwide abolishment of the death penalty or the advocacy of human

rights) Lord Hoffman was disqualified from hearing the extradition case against the

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notorious General Pinochet. The disqualification only arose because of his directorship in

an entity that was legally connected to the party before the court. In fact, as history shows,

since 2000, and up to his retirement, Lord Hoffman, despite his directorship and his wife’s

employment in AI, heard numerous appeals involving the death penalty and the abuse of

human rights.

40. The analogy between this case and the one in Pinochet is wrong. There is no evidence, and

it is not true in any event, that I have any formal or informal connection with the HRM or

with FFOS, whether by way of membership or by subscription to the causes they advocate.

Moreover, FFOS is not a party to the proceedings brought by the HRM. All that can

correctly be said is that Gary Aboud is the secretary and chief spokesman for FFOS, that he

is passionate about the causes that FFOS pursues, and that he is my brother. There is no

evidence whatsoever that Gary Aboud is a close friend of Dr Kublalsingh. I cannot say,

examining all the surrounding circumstances disclosed on the evidence, that these assertions

are shared by the fair-minded and informed observer.

41. In my view, a fair-minded and informed observer would not view the activities at the

Waterfront as one in which Gary Aboud had “adopted the cause” of Dr Kublalsingh. As the

press stories make plain, Gary Aboud is protesting against and advocating a stoppage to the

seismic surveys in the Gulf of Paria. He is calling for an Environmental Impact Assessment

by the Environmental Management Authority in order to protect fish stocks and the

livelihood of fisher folk. Dr Kublalsingh, on the other hand, is complaining that a technical

review of a road building enterprise undertaken by the Government in 2012, was conducted

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without his input and thus constitutes a breach of natural justice. Further, in the application

for the conservatory order filed in 2013 he is saying that a second independent technical

review chaired by Dr Armstrong in that year has been disregarded. The two cases are not in

point. Insofar as both men have been arrested and claimed to have been injured in the

process, I would say that a fair-minded and informed observer would say “that is par for the

course for men in that line of business.” Some causes, be they political, environmental, or

social, involve recklessness as to whether or not they will result in arrest. Some advocates

for an end of the destruction of the Amazon basin or the end of the Israeli blockade on food

and medicine to Palestine have even been killed. If it were, as Mr Martineau said, that Dr

Kublalsingh and Gary About are “members of one movement: the environmental

movement,” then those who advocate for the preservation of historic buildings, and those

who advocate the protection of the wetlands in Nariva would be regarded as members of one

movement. That is a simplistic analysis. Political activists cannot be lumped together any

more than animal rights and anti-smoking activists. In the modern age, the multiplicity of

environmental pressure groups questioning every aspect of human activity cannot be

amalgamated. Both the hunters and those who support the ban on hunting claim that they

are acting in support of the environment. The advancement of environmental causes in the

courts here and abroad has already entered our consciousness as causes that are as legitimate

and predictable as breach of contract or false imprisonment. Who is not “an

environmentalist”?

42. The most compelling thing that is said to raise suspicion in the mind of the fair-minded and

informed observer is that Gary About is my brother. In Locabail an issue arose in relation to

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an objection to a betting shop at a betting licence hearing. After the refusal of a judicial

review application questioning the grant of the licence, evidence was published that the

sitting judge in the JR application was a director in his family’s company that was the lessor

of the very premises leased to the betting shop. This connection was found to be insufficient

to ground either automatic disqualification or apparent bias although it was a case of both a

direct and a family connection.

43. The court in Locabail noted at 473G:

“In any case where the judge’s interest is said to derive from the

interest of a spouse, partner or other family member the link must

be so close and direct as to render the interest of that other person,

for all practical purposes, indistinguishable from the interest of the

judge himself.”

In the application before me there is nothing to suggest that I espouse or even share the

views expressed by Gary Aboud.

44. Mere brotherhood with an environmental activist (a self-description that Dr Kublalsingh

does not adopt) who is not a party in the case cannot be reasonably perceived by the fair-

minded or informed observer as creating apparent bias. Unlike the case of Pinochet, which

was also argued on the ground that Lord Hoffman’s wife was an employee of one of the

parties (the case was however not decided on this basis), no one can deny that Gary Aboud

and I are grown men, living in separate households. In fact those who are well informed

would know that Gary Aboud and I have not lived in the same household for 35 years and

that we are both in our 50’s. I have pursued a career that upholds the rule of law, and he has

pursued a career that puts him in danger of breaking the law. There is no evidence that we

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come from a family that is more well-knit than any other, nor that our family, like every

other, does not have disputes among its members as to what they say or what they do.

45. The argument has also been advanced that if FFOS institutes legal proceedings against

Petrotrin or the EMA, or whoever, those proceedings will mirror these, and that the decision

in this case will be determinative of the intended FFOS action. This, it is said, will put

pressure on me (by virtue of my coming from a “very close-knit family”) to decide the case

in favour of the HRM. This is speculative, and entirely misrepresents what is going on in

the mind of the observer. No action has been filed by FFOS, and the seismic surveys are

now underway. In any event, I decide cases that affect commercial law and I have two

brothers involved in commerce. Again too, my sister is a devout Catholic, and I doubt that

the fair-minded observer will object to my deciding a case on the constitutionality of

abortion. If FFOS files a case to question the seismic surveys, even if it is launched on the

same grounds as this one (which is doubted, if newspaper reports are accurate) I do not

believe that the fair-minded observer will be suspicious. If this argument is correct, I and

my fellow judges might as well take early retirement en masse for we have relatives

involved in every field of human endeavour.

46. I believe that the defendant is underestimating the thinking of the fair-minded and informed

observer in Trinidad and Tobago and falling prey to the type of small island paranoia so

aptly described by Archie JA in Panday v Virgil. Such a person does not blindly accept

what is printed in the newspapers or heard on the radio call-in programs. Had he or she sat

in court to hear the evidence in this application and listened to Mr Hosein’s submissions he

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would have come away with an entirely different opinion from the one advanced on his

behalf by Mr Martineau and Mrs Peake.

47. Over and above all other considerations would be the recognition by such an observer that I

have taken a sacred oath to uphold the law and to impartially dispense justice. He would

expect that the Judicial and Legal Service Commission would have investigated my

character and he or she would take note that I have been practising law for 30 years and

sitting as a judge for over five years. If he is fair-minded and informed, the observer will

know that judges do not form their opinions on the basis of what is printed in the media.

The views of their families play no part in their decisions, and neither do the actions or the

causes that their relatives pursue. The observer will also know that judicial office is not a

mere career choice, but a life-changing vocation. To suggest that in the mind of the

informed and fair-minded observer, a judge, by virtue of the beliefs or actions of any

member of his family, would compromise his solemn oath of office is to degrade the

thinking of those who are informed and fair-minded, and to undersell his or her appreciation

of our established legal and judicial traditions.

48. In addition to the duty to recuse in a proper case, a judge also has an equally powerful duty

to hear a case: “Recusal and reassignment is not a matter to be lightly undertaken by a

district judge. While, in proper cases, we have a duty to recuse ourselves, in cases such as

the one before us, we have a concomitant obligation not to recuse ourselves; absent valid

reason for recusal, there remains what has sometime been termed ‘a duty to sit’ ” (Simonson

v General Motors Corporation ISDCP 425 R. Supp. 574, 578 (1987)). In this regard, see

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also the opinion of the Constitutional Court of South Africa in President of the Republic of

South Africa v South African Rugby Football Union 1999 (7) BCLR 725 at p 753, which

was approved by English Court of Appeal in Locabail at p 479.

49. As much as it is a disservice to the institution of public justice that judges who ought to

disqualify themselves do not, it is also a disservice to the institution and the citizens that it

serves to make applications for recusal based on conjectural assertions or flimsy grounds.

Such applications undermine public confidence in the integrity of the judicial system that

they are supposedly filed to protect. In so far as judges must be seen to be doing justice,

litigants, including those holding high office, must not be seen or perceived to be forum-

shopping or picking and choosing adjudicators like mangos at the market.

50. This is a heavy case that is very far advanced. The substantive claim has been case-

managed for over a year, and the recusal application has been made in the middle of an

application for an interim injunction, at the point when the defendant was about to begin his

address. While this consideration should not bear any weight in a proper recusal application,

it is neither to be overlooked in this application. I have a duty to sit and hear the cases

assigned to me and I will not, on the basis of undeserving applications, shirk from that

responsibility. I therefore decline the application to recuse myself.

51. Before closing I should mention that Mr Hosein argued that the defendant had waived his

right to make a second recusal application on virtually the same grounds as those advanced

in 2012. In light of my decision above there is no need for me to determine the issue of

waiver.

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52. I will now consult Senior Counsel on the question of costs and give directions for the

conclusion of the hearing of the application for the interim injunction.

James Christopher Aboud

Judge