Equal Opportunity Tribunal chairman appeals Veera Bhajan ruling

THREE Appeal Court judges have been asked to overturn a judge’s ruling against the Equal Opportunity Tribunal (EOT) and its chairman Donna Prowell-Raphael on the appointment of lay assessor Veera Bhajan in 2021.

Prowell-Raphael has appealed the November 22, 2021, ruling of Justice Avason Quinlan-Williams. In that decision, the EOT chairman came under harsh criticism from the judge for her conduct in blocking Bhajan from taking up her appointment.

On Friday, Justices of Appeal Mira Dean-Armorer, Vasheist Kokaram and Malcolm Holdip heard submissions from Prowell-Raphael’s lead attorney, Ramesh Lawrence Maharaj, SC, and those for Bhajan and the Attorney General.

The EOT has not appealed. The Appeal Court judges have not yet reserved their ruling but are expected to do so later this month.

Quinlan-Williams had held the actions of the EOT and its chairman were illegal and beyond their statutory remit.

The judge had said there “ought to be a sense of public outrage over what occurred,” adding that the attempts to block Bhajan’s appointment were disturbing and off-putting.

She also quoted the lyrics of local dancehall artist General Grant’s hit Pure Hate saying it resonated with her throughout her consideration of the case.

“Pure hate and acting normal.”

Quinlan-Williams also said she had difficulties in writing the judgment, not based on the legal issues before her but in striking a balance between being critical of the conduct and being judicious in her choice of words to describe it.

She also questioned whether Prowell-Raphael would reconsider her continued role on the tribunal.

“I wonder if at the end of this saga, after all, is said and done and when there is an opportunity to reflect on decisions made and actions taken, whether the second defendant would, in a quiet time, reflect on whether she is the best fit for chair of the Equal Opportunity Tribunal,” Quinlan-Williams said.

In calling on the Appeal Court to overturn the ruling, Maharaj argued that the judge exhibited apparent bias by not hearing his client’s application to set aside the leave granted to Bhajan to pursue her claim.

He said while it was open to the judge, as part of her case management discretionary powers, to hear the application and the substantive claim together, she blurred the lines of distinction when she gave her final ruling.

“Having regard to the nature of the complaint, it should not have been heard together.”

Maharaj said while the chairman was criticised for her comments in a letter to the President on Bhajan’s appointment, it was out of her duty.

“She had a duty to be concerned and a responsibility to ensure the appointment was lawful.”

Bhajan was appointed by former President Paula-Mae Weekes as a lay assessor on March 17, 2021.

According to the evidence at the trial, the tribunal and the chairman gave varying reasons why she could not assume duties, citing limited financial resources, an inability to accommodate a member with a disability and allegations that Bhajan may be perceived to be biased based on her disability.

These were strongly rejected by Quinlan-Williams

Under the Equal Opportunity Act, the tribunal consists of a chairman and two lay assessors. While the Judicial and Legal Service Commission (JLSC) advises the President on the appointment of the chairman, the lay assessors are selected by the President. The tribunal is mandated to hear and determine discrimination complaints under the legislation, which are referred to it by the Equal Opportunity Commission.

In his submissions, Maharaj said the matter should be sent to another judge for adjudication.

“My position is that the Supreme Court has to ensure the Constitution is upheld. The court has to consider if the appointment was ultra vires.” He also said the judge’s findings and comments were “extreme and unbalanced.”

“Her views on the suitability of the appellant coloured her mind to dispassionately consider the law. There was a real possibility she was infected by bias.” He also said she may have been influenced by hostility to the chairman.

However, in countering the arguments, Bhajan’s attorney, Alvin Fitzpatrick, SC, said there was no question of compromise in this case. He was commenting on a suggestion on the possibility raised by the judges.

“This court should not shirk its responsibilities,” as he called on the judges to express their comments on the appellant’s conduct, “in stringent terms,” in the same way the trial judge did.

“There is no need to send it back. The course of conduct is deplorable and the court should express its opinion on it without reservations.”

He also said the apparent bias submission was “incredible.” As he took the judges through the evidence that led to Bhajan filing her judicial review complaint, Fitzpatrick said the court’s comments on the chairman had nothing to do with his client.

“We are happy to get on with our job as lay assessor. They brought us here. They have made unfounded allegations of bias against the court.” He also maintained the treatment meted out to the 2011 Hummingbird Medal (Silver) recipient amounted to “discrimination.” He labelled Prowell-Raphael’s comment on Bhajan’s ability to sit as a lay assessor as “abominable.”

“All of these things the court took into account to determine the conduct of this appellant….Her conduct is important.

“...She was duty-bound to make the observation she made on the conduct of this appellant.”

On the language used by the judge, Fitzpatrick said she was entitled to make those comments and “had a responsibility to express disapproval and behaviour of bad faith (of the appellant) in strong terms. She demonstrated her dismay at the conduct of the appellant.” He said it was a “judicious” choice of words.

“At the end of the day, this court should endorse it and accept them in strong terms.”

As for the judge’s “pure hate and acting normal” reference, Fitzpatrick said,” On the basis of the evidence, this was absolutely so.”

“Do not be restrained to describe the deplorable conduct.”

On behalf of the Attorney General, Rishi Dass, SC, said his client also spoke on behalf of the president. He said there was a need to uphold the validity of presidential appointments. Dass said when Bhajan complained of not being able to take up her appointment, the former president and the AG tried to resolve the matter without going to court to avoid reputational damages on both the lay assessor and the tribunal.

He said there was no concession put on the table by Prowell-Raphael’s legal team on which of the judge’s orders they wanted to be set aside.

Dass said the setting aside argument failed and so, too, the submission on apparent bias since the trial judge had not been called on to recuse herself.

He said the judge’s comments came after hearing the evidence.

On the complaint of the language used by the judge, Dass urged the judges to consider the cultural background of TT. He said General Grant was a distinguished artiste and the judge was entitled to use poetic licence once there was a factual basis in support.

“It would be a bit of a stretch to say ‘you’re biased’”

He also said Quinlan-Williams never said the chairman was “unfit” to hold office but whether she was the “best fit.”

“ There is a distinction. The judge was not determining that. That comment even if this court says it was gratuitous, would not be apparent bias.”

As he called on the judges to consider the ethos of the equal opportunity legislation and the reasons given for Bhajan not being able to take up her duties, Dass mentioned the lengths Maharaj, who introduced the law during his tenure as attorney general, went to ensure it got passed.

“It was groundbreaking legislation… Even the President had cause to write and say it was the supreme irony that it (the tribunal) was engaging in the same type of discrimination.”

The judge, he said, was only echoing the sentiments of the then-president.

“It would be extremely unfortunate to set aside the orders…and unfair if that was the outcome. They have not defended the appellant's conduct.”

Bhajan's tenure as lay assessor of the EOT ends in March 2024. After the court's ruling in November 2021, she was able to take up her position and has been receiving her salary.

Appearing with Maharaj for Prowell-Raphael were Leon Kalicharan, Kiel Taklalsingh and Karina Singh.

Bhajan was also represented by Rajiv Persad, Michael Rooplal, Rajiv Chaitoo, Shari Fitzpatrick and Gabriel Hernandez.