The judge ruled that, in her view, there is no reason why the report could not be handed in, bringing to an end a court case in which Udecott had argued that the proceedings of the inquiry should be vitiated because of apparent bias on the part of the commissioners.
In a 142-page judgment, Dean-Armorer rejected several grounds on which Udecott had applied for the proceedings to be declared illegal but at the same time she criticised former commissioner Israel Khan SC for his cross-examination of Udecott executive chairman Calder Hart in January 2009 and also declared one decision of the commissioners as null and void.
“There is no reason why they should not proceed to complete and to submit the report of the commission of inquiry to His Excellency,” the judge said.
Her ruling, which will be regarded as a blow to the Udecott board, came two days after fresh documents showing apparently conclusive links between Hart and a company his board awarded $820 million in contracts emerged after being obtained by the Congress of the People (COP).
In her judgement the judge rejected:
• the argument that chairman of the inquiry Professor John Uff showed apparent bias;
• a claim that former commissioner Israel Khan SC had “tainted” the proceedings shortly before he resigned;
• arguments that one-time commissioner Kenneth Sirju’s ties to construction projects examined by the inquiry now vitiate it;
• the argument that the chairman’s treatment of the evidence of Carl Khan, the ex-husband of Hart’s wife Sherrine, was demonstrative of bias.
Shortly after reading out her ruling in the case at the POS 08 courtroom of the Hall of Justice, Port-of-Spain, attorney for Udecott Devesh Maharaj asked Dean-Armorer to issue a stay of the proceedings to stop the commissioners from submitting a final report to the President. He said Udecott was “most likely” going to appeal the decision. However, the judge refused Udecott’s last-ditch application.
Noting that she had already ruled and had rejected reliefs sought by Udecott, she said, “I don’t see that in the circumstances I have the power to prevent the report from going forward.”
“It seems as though you’re going to have to rush upstairs (to the Court of Appeal) and hopefully you’ll find someone there now,” she said. “I cannot stay something that does not form part of my orders. You are likely to have a more fruitful experience (in the Court of Appeal).”
Notably, attorneys for Attorney General John Jeremie who were present in the courtroom did not join in Udecott’s last-ditch application to stay the submission of the report.
The judge ordered Udecott to pay seven-eighths of the costs in the matter, which is likely to amount to millions as it featured two British Queen’s Counsel for both sides as well as batteries of State lawyers.
In her judgment, Dean-Armorer rejected the idea that links between Sirju’s engineering firm KS&P Limited fatally affected the proceedings because Sirju has virtually recused himself from the proceedings, a fact that had been kept quiet by all parties to the proceedings until yesterday.
The judge was, however, critical of former commissioner Khan for his cross-examination of Hart on January 28, 2009.
“In my view...the fair-mined and informed observer would have detected the appearance of bias in the interrogation,” she said. “The fair-minded observer would note the very clear attempt to suggest that Mr Hart was unintelligent...that neither Mr Hart’s intelligence nor his competence as an economist were in issue before the commission.” She noted that while Khan’s Canadian connections would also be considered (Khan’s wife is Canadian), the “observer would form the view that there was a real possibility that commissioner Khan had a visceral dislike of Mr Hart.” But this, she said, was only relevant in as far as whether it tainted the other commissioners, given the fact that Khan later resigned.
She concluded that chairman Uff was untouched by bias.
“The fair-minded observer would be mindful of the context of Professor Uff’s appointment, that is, that he was a foreigner and that he was highly qualified being an engineer, a professor and Queen’s Counsel,” she said. “These factors would lead the (observer) to conclude that Professor Uff was firstly a stranger to the political allegiances or animosities that might sway a national of Trinidad and Tobago. Professor Uff’s high academic qualifications would suggest that Professor Uff possessed adequate experience and training to separate any personal dislikes from the task at hand.”
She noted that given the sheer volume of work the inquiry was mandated to handle, there would naturally be “many incidents...born of negligence rather than a mind that was prejudiced against Udecott.”
Thus while she found that the commissioner’s decision to place two sworn statutory declarations from Carl Khan on the commission’s website was unfair, this was not indicative of bias but rather part of a pattern of “negligent authoritarianism” on the part of Uff. She rejected the idea that former commissioner Khan could have “tainted” Uff with racial bias against Calder Hart.
“The fair-minded observer would also be conscious of Professor Uff’s training and experience and would find that there was no real possibility that Professor Uff could be infected with racial bias against himself,” she said.
However, she declared a decision taken by Uff and Sirju to have Sirju not participate in the preparation of a final report but nonetheless submit a memorandum of opinion was illegal, not being envisaged under the Commission of Inquiry Act. However, this was not fatal to the proceedings.
Former commissioner Khan yesterday said of the judgment, “It is absolutely no surprise to me that Udecott and Calder Hart lost these matters. The judgment is in keeping with the law and the facts.”
COP political leader Winston Dookeran yesterday met with Opposition Leader Kamla Persad- Bissessar and handed over the documents which this week linked Hart to Sunway Construction Caribbean Limited. Both agreed that moves should be made to have the Parliament probe Udecott.
“I look forward to the (Uff) report being made public for a full parliamentary debate on it in light of this judgment,” Dookeran said yesterday. “Whether or not Calder Hart will take further legal action, however, is unclear because we would not want to have further scuttling of the Commission of Inquiry’s report.”