Court of Appeal
No. 3 of 2002
2002: June 25-26 and October 17.

Constitutional Law - Removal of Judge of the Supreme Court from office for misbehaviour - Whether there was a real danger that Chairman of Tribunal which sat to hear complaints against Judge was biased - Whether the Tribunal contravened section 6(8) of the Belize Constitution when it decided to hold its proceedings in camera.

J U D G M E N T

ROWE, P.

1. This appeal has raised matters of immense public importance. It concerns the procedure for the removal of a Justice of the Supreme Court of Belize for misbehaviour. On 18 September 2001, the Governor-General advised the appellant by letter that after carefully perusing and considering the report and advice of the Belize Advisory Council in relation to the Belize Bar Association's complaint against him, he was removing the appellant from the office of a Justice of the Supreme Court of Belize from September 18, 2001 for misbehaviour pursuant to section 98(4) as read with section 98(7) of the Belize Constitution. The appellant was provided with a copy of the Report and advice of the Belize Advisory Council.

2. Complaints concerning the conduct of the appellant by Ms. Lois Young-Barrow, Attorney-at-Law on October 16 and 30, 2000 and by the Belize Bar Association on 30 January 2001 had been made to the Governor-General. On 2 February 2001 the Governor-General informed the appellant by letter of the complaints that had been made against him and on 29 March 2001, the Governor-General formally referred the complaints to the Belize Advisory Council, pursuant to section 98 of the Belize Constitution. The appellant was suspended from office on the same date.

3. An evidentiary hearing commencing on May 14, 2001 was conducted by the Belize Advisory Council, presided over by the Chairman of the Belize Advisory Council, (hereinafter "the Advisory Council"), Mr. Ellis Arnold. The Council reported on 12 September 2001 and advised the Governor-General that the appellant should be removed from office in accordance with section 98(5)(b) of the Constitution of Belize.

4. By Notice of Motion filed 29 October 2001, the appellant challenged the decision of the Governor-General to remove him from office on a plethora of grounds pursuant to sections 20, 3(a), 6(l) and 6(8) of the Constitution of Belize and as relief sought numerous declarations which must be set out later. The Notice of Motion was amended on November 30, 2001 and came on for hearing before Blackman J. on 16 January 2002. At that hearing, the declarations sought in paragraphs 2, 4, 7 and 9 of the Amended Notice of Motion were abandoned. For the purposes of this judgment, only paragraph 7 of the abandoned paragraphs will be reproduced herein. The relevant declarations sought before Blackman J, were the following:

   "1. A declaration that the appellant has been deprived of his right to the protection of the law as guaranteed to him by section 3(a) of the constitution of Belize. Insofar as the enquiry held by the Belize Advisory Council sitting as a Tribunal pursuant to Section 98(5)(a) of the Constitution to enquire into the matter of whether the applicant should be removed from office for misbehaviour, was presided over by the Chairman of the Belize Advisory Council, Mr. Ellis Arnold, who is also a member of the Bar Association of Belize, one of the two complainants.

   3. A declaration that the appellant has been deprived of his right to the protection of law as guaranteed to him by Section 3(a) of the Constitution of Belize insofar as the members of the Belize Advisory Council sitting as a Tribunal were not the peers of the applicant.

   5. A declaration that the applicant has been deprived of his right to the protection of the jaw, as guaranteed to him by the Constitution of Belize, insofar as the Belize Advisory Council sitting as a tribunal failed to notify the applicant of its decision to "recommend" to the Governor General that the applicant should be removed from office for misbehaviour, prior to notifying the Governor General of that decision.

   6. A declaration that the applicant has been deprived of his right to the protection of the law as guaranteed to him by section 3(a) of the Constitution of Belize, insofar as, with respect to the complaints as were pursued against the applicant by the Bar Association of Belize no charge was ever formulated or given to him to enable him to know what specifically was the case against him and to which he was requested to respond.

   7. That the applicant was deprived of his right to the protection of the law as is guaranteed to him by Section 3(a) of the Constitution of Belize, insofar as the decision of the Belize Advisory Council Tribunal to recommend to the Governor-General that the applicant be removed from office for misbehavior, was unreasonable having regard to the evidence presented to the Tribunal during its inquiry into allegations which had been made against me (sic) by the Bar Association of Belize.

   8. A declaration that the applicant has been deprived of his right to a public hearing and to a public announcement of the findings of the tribunal as guaranteed to him by section 6(8) of the Constitution of Belize, insofar as the hearing conducted by the Belize Advisory Council sitting as a Tribunal in its enquiry as to whether the applicant should he removed from office for misbehaviour were held in camera at the Central Bank Building and up to the present time the Tribunal has failed to make any public announcement of its findings as it is required to do by section 6(8) of the Constitution of Belize.

   10. A declaration that based upon the aforesaid breaches of his fundamental rights, the ruling - recommendation of the Belize Advisory Council that the applicant should be removed from his office as a Judge for (misbehaviour) is null and void.

   11. A declaration that based on the aforesaid breaches of his fundamental rights the action of the Governor General in removing the applicant from office is null and void.

   12. Damages."

5. Blackman J. held (a) that there was a real danger or reasonable apprehension or suspicion of bias to the appellant's case by Mr. Ellis Arnold, Chairman of the Advisory Council, but felt constrained to refuse the declaration sought by the appellant that he had been deprived of his right to the protection of the law as guaranteed to him by section 3(a) of the Constitution of Belize; (b) that the proceedings before the Advisory Council ought to have been held in public; (c) that the Advisory Council would have reached the same decision notwithstanding its error in having the hearings in camera, rather than in public; (d) refused the several reliefs sought and declared that the applicant stood removed from office. He ordered the respondents to pay the costs of the hearing.

6. From the decision of Blackman J. this appeal has been taken. Six grounds of appeal were originally filed. The three grounds that were pursued before us were that

   (a) The learned judge erred and was wrong in law in holding that he was constrained to refuse the Declaration sought that the Applicant had been deprived of his right to the protection of the law as guaranteed to him by section 3(a) of the Constitution of Belize, notwithstanding Mr. Arnold's failure to recuse himself from The Chairmanship of the Advisory Council on the basis of the dicta of Asquith L.J. in Wilkinson v. Barking Corporation [1948] 1 ALL ER 564 @ 567 letter (b) and on the basis of public necessity at common law.

   (b) The learned trial judge erred and was wrong in law in concluding that the failure of the Belize Advisory Council to hold a public hearing was merely procedural and not substantial.

   (c) The learned trial judge erred and was wrong in law in concluding that had the Tribunal caused its rules governing the proceedings to be Gazetted, those rules could then properly created a lawful exception to the constitutional right as set out in Section 6(8) of the Belize Constitution.

7. Chapter II of the Constitution of Belize is dedicated to the Protection of the Fundamental Rights and Freedoms of every person in Belize. Section 3(a) entitles every person in Belize to the fundamental right and freedom to "life, liberty, security of the person, and the protection of the law." Section 6(l) provides that "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law."

   Further, section 6(8) and 6(9)(a) provide:

   "6(8) Except with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public;

   6(9)(a) Nothing in subsection (8) of this section shall prevent the court or other adjudicating authority from excluding from the proceedings persons other than the parties thereto and the legal practitioners representing them to such extent as the court or other authority:

   (a) may by law be empowered to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice or in interlocutory proceedings or in the interests of public morality, the welfare of persons under the age of eighteen years or the protection of the private lives of persons concerned in the proceedings."

8. It is convenient for me to deal now with the second and third grounds of appeal which have been set out above. In summary these grounds of appeal complained that the trial judge was in error when he held that the failure of the Advisory Council to conduct its proceedings in public was more procedural than fundamental and that there was no fundamental requirement in the circumstances that pertained, for the Advisory Council to announce its decision in public. We heard submissions from Mr. Wilfred Elrington and Mr. Hubert Elrington in support of these combined grounds of appeal to the effect that Blackman J. correctly determined that the Advisory Council was an authority to which section 6(8) of the Constitution applied and that it was exercising jurisdiction in proceedings for the determination of the existence of the civil rights of the appellant. Accordingly, counsel for the appellant submitted that the language of section 6(8) is mandatory and that both the hearing of the proceedings and the announcement of the Advisory Council's decision ought to have been public.

9. The Solicitor General submitted that the proceedings of the Advisory Council do not fill within section 6(8) of the Constitution and the tribunal properly acted to determine its own proceedings pursuant to section 6(9) and 54(13) of the Constitution. Section 98(4) of the Constitution provides that "a justice of the Supreme Court shall be removed from office by the Governor-General if the question of the removal of the justice has been referred to the Belize Advisory Council in accordance with the next following sub-section and the Belize Advisory Council has advised the Governor-General that the justice ought to be removed from office for inability as aforesaid or for misbehaviour."

Section 98(5) provides that:

(5) "If the Governor-General considers that the question of removing a justice of the Supreme Court from office for inability as aforesaid or for misbehaviour ought to be investigated, then

(a) The Governor-General shall refer the matter to the Belize Advisory Council which shall sit as a tribunal in the manner provided in section 54 of this Constitution; and

(b) The Belize Advisory Council shall enquire into the matter and report on the facts thereof to the Governor-General whether that justice should be removed under this section".

10. It is provided in section 98(7) that "Except as otherwise provided in this section, the functions of the Governor General under this section shall be exercised by him in his own deliberate judgment." There is no specific exception in section 98 of the Constitution that mandates the procedure to be followed by the Governor General when he receives the report and advice of the Advisory Council and therefore when the Governor-General takes action pursuant to section 98(7) for the removal of a justice of the Supreme Court, he is mandated to do so, and in fact does so, in "his own deliberate judgment." This implies that he is not constitutionally obliged to accept the advice of the Advisory Committee. He is not constitutionally mandated to seek advice from any other person or authority prior to making his decision. The constitutional scheme is that the Advisory Committee should carry out an investigation into the complaints that have come to the Governor-General concerning the conduct of a Judge. The Advisory Committee must then conduct an inquiry. There is nothing in the provisions governing the jurisdiction of the Advisory Council that empowers it to act as a court hearing adversarial proceedings of a criminal or civil nature. I am attracted to the analysis and observations of Gonthier J. in Therrien v Minister of Justice, et al. [2001] SCC3S, October 10, 2001, p.35, where quoting himself from Ruffo, [1995] 4 S.C.R 267, he repeated:

    "Accordingly, as the statutory provisions quoted above illustrate, the debate which occurs before it does not resemble litigation in an adversarial proceeding; rather it is intended to be the expression of purely investigative functions marked by an active search for the truth.

In the light of this, the actual conduct of the case is the responsibility not of the parties but of the Commission itself on which the CJA confers a pre-eminent rote in establishing rules of procedure, researching the facts and calling witnesses. Any idea of prosecution is thus structurally excluded. The complaint is merely what sets the process in motion. Its effect is not to initiate litigation between two parties. This means that where the Council decides to conduct an inquiry after examining a complaint lodged by one of its members, the Committee's primary role is to search for the truth; this involves not a lis inter partes but a true inquiry in which the Committee, through its own research and that of the complainant and of the judge who is the subject of the complaint, finds out about the situation in order to determine the most appropriate recommendation based on the circumstances of the case before it."

And Gonthier J. continued:-

"This passage clearly shows that the committee's purpose is not to act as a judge or even as a decision-maker responsible for settling a dispute; on the contrary, it is to gather the facts and evidence in order, ultimately, to make a recommendation to the Counseil de la Magustrature. It also illustrates the intention of avoiding the creation of an adversarial atmosphere between two opponents each seeking to prevail. When there was no judge or parties, counsel for the parties could not have been in a conflict of interest. For example, when he examined and cross-examined the witnesses, he was not acting as a prosecutor, but rather was providing the committee with help and assistance in carrying out the mandate assigned to it by the statute".

11. The constitutional function of the Advisory Council is to "enquire into the matter and report on the facts thereof to the Governor-General and advise the Governor-General whether that justice should be removed under the section. It appears to me that the meaning given to the term "recommendation" in Thomson v Canada (Deputy Minister of Agriculture) [1982] 1 I S.C.R. 385 is applicable to the circumstances of this case. There Cory J. said that the ordinary meaning of that word as it appeared in section 52(2) of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23. necessarily referred to the offering of advice and should not be taken to mean a binding decision. A "recommendation" he said was not synonymous with "decision".

12. The attorneys for the appellant argued that, as there was no cross-appeal or respondent's notice filed by the respondent, this court should proceed on the basis that section 6(8) of the Constitution applied and, prima facie that, the appellant was entitled to have the proceedings before the Advisory Council conducted in public, and the decision of the tribunal announced in public. Blackman J. had said in his judgment that the failure of the Advisory Council to publish in the Gazette the rules made on May 4, 2001, nullified their intent to hold the proceedings in camera. He continued:

"There was thus a constitutional imperative to have held the hearings in public pursuant to section 6(8) of the Constitution and consequently the declaration prayed for is hereby granted.

However, I consider that non-compliance with the statutory requirement for publication in the instant case, to be more procedure than fundamental, in that unlike the situation in the Barnwell case, there was a hearing and consequently it would be appropriate to hold the hearing by the Advisory Council to be a nullity."

13. If there was a constitutional imperative that the proceedings in this case be held in public then the reasons advanced by the tribunal for departing from that imperative should have been fully considered by the learned trial judge. The issue of a public hearing was fully argued before the Advisory Council. The appellant then and now has consistently argued for a public hearing. After a consideration of all the submissions of counsel, the Advisory Council ruled that it would hold the proceedings in camera. Mr. Arnold in his affidavit sworn to on 12 December 2001, at paragraph 10 gave the Advisory Council's decision to be:

"That the Tribunal ruled that the Inquiry be held in camera based on the provisions of section 54(13) of the Belize Constitution which gives the Belize Advisory Council the power to regulate its own procedure, as read with section 6(9)(a) of the Belize Constitution which empowers the Tribunal as an Administrative Authority to direct the proceedings to be held in camera in circumstances where, among other things, publicity would prejudice the interests of justice or in order to protect the private lives of persons concerned in the proceedings."

14. Blackman J. was not impressed with the submissions of respondent's attorneys that the Advisory Council could have considered the well-being of the appellant as one of the prime reasons for an in camera hearing. He characterized those submissions as "sanctimonious humbug". The Solicitor General laid out in his written submissions seven (7) sets of allegations that had been made against the appellant and summarized them as charging the appellant with (a) having used his office corruptly for private gain thereby allowing his integrity to be called into question, (b) having demeaned his office and engaging in immoral, irresponsible and reprehensible behaviour rendering him unfit to hold office as a judge which showed that the administration of justice and the private lives of persons were likely to be prejudiced in a public hearing. These were extremely serious allegations against a Justice of the Supreme Court and without recounting them all, mention is made of the allegation that: (a) the appellant permitted the Solicitor General who appeared for one of the parties in a case to assist him in the preparation of his judgment in a contested case and (b) that the appellant presided in proceedings in relation to a female litigant with whom the appellant had an amorous and intimate relationship. There was in addition the allegation that the appellant received gifts of money from litigants and gifts from two attorneys who practised before him.

15. The Advisory Council was being presented with a matter that had never occurred in Belize before. They were compelled to have in consideration the security of tenure of a judge of the Supreme Court and the high place that the independence of the judiciary merits in the constitutional law and practice of Belize. In R v Trade and Industry Secretary ex p. Lonorho Plc. [1989] 1 W.L.R. 525, the issue was whether the Secretary of State had properly exercised his discretion to delay or postpone in the public interest the publication of a report by inspectors appointed under the Fair Trading Act. In his judgment Lord Keith considered the volume of information before the Divisional Court as compared to that known to the Secretary of State and in relation to the decision of the Divisional Court that the decision to delay made by the Secretary of State was ultra vires and unlawful and that mandamus should issue and issued this caveat at p.
    535:

"The judgments of the Divisional Court illustrate the danger of judges wrongly though unconsciously substituting their own views for the views of the decision maker who alone is charged and authorized by Parliament to exercise a discretion. The question is not whether the Secretary of State came to a correct solution or to a conclusion which meets with the approval of the Divisional Court but whether the discretion was properly exercised."

16. It seems to me that the Advisory Council had to consider the provisions of section 6(9)(a) of the Constitution, the evidence that was placed before it, the submissions of counsel on both sides and make its own determination if the public interest or the private lives of persons concerned should be protected.

17. I have not considered that the dictum of Lord Pearce in the case of Anisminic, Ltd. v The Foreign Compensation Commission and Another [1969] 1 ALL ER 208, at 233 F, which has been relied on by counsel for the appellant advances his arguments on appeal. There was no absence of formalities by the Advisory Council that could destroy its jurisdiction. There were no rules prescribed under section 54(13) of the Constitution by the Advisory Council that could guide the Advisory Council in the conduct of the proceedings. However, the Advisory Council was empowered by section 54(13) to regulate its own procedure. What it was bound to do was to adopt a procedure that was inherently fair to the appellant. It was incumbent upon the Advisory Council to ensure that the appellant knew what the complaints against him were, that he had the right to appear before the Advisory Council and to face those who complained against him and that he should have legal representation of his choice. In other words, there should be objective procedural fairness in the method of procedure adopted by the Advisory Council. There can be no doubt whatsoever that the appellant and his legal advisers knew the allegations that were made against him. These were sent to the appellant long before the Advisory Council was engaged. The Advisory Council informed the appellant of the nature of the complaints and as to this there has been no challenge from the appellant. Indeed, the appellant withdrew his attack upon the quantum and credibility of the evidence presented to the Advisory Council and his legal challenges lie in other directions.

18. I am not persuaded that the dicta in Schuler-Zgraggen v Switzerland [1993] 16 E.H.R.R. 405, paragraph 58 relied upon by counsel for the appellant are applicable to this case. The respondent has never argued that the appellant waived his right to a public hearing. In my view, the instant case does not fall within section 6(8) of the Constitution. If I am wrong on that point, I am of the view that the Advisory Council was entitled to consider sections 6(9)(a) and 54(13) of the Constitution and to determine whether they could exercise their discretion to hold the inquiry in camera. There was in my view ample factual material before it on which the Advisory Council could make the decision to hold the inquiry in camera.

19. I turn now to consider the first ground of appeal. The Belize Advisory Council is constituted by section 54(1) of the Constitution of Belize as follows:

"54(1) There shall be a Belize Advisory Council (hereinafter referred to as "the Council") which shall consist of a Chairman, who shall be a person who holds, or has held, or is qualified to hold office as a judge of a superior court of record, and not less than six other members who shall be persons of integrity and high national standing of whom two shall be persons who hold or have held any office referred to in section 107 of this Constitution and at least one shall be of a recognized profession in Belize;

Provided that no public officer other than a judge of a superior court of record shall be appointed as Chairman.

(There then follows the method by which the members of the Council shall be pointed and the tenure of appointment in sections 54(2)-54(6)

54(7) The functions of the Belize Advisory Council shall be -

(a) to advise the Governor-General in the exercise of his powers under section 52 of this Constitution;

(b) to perform such other tasks and duties as conferred or imposed on it by this Constitution or any other law.

54(8) In the exercise of its functions the Belize Advisory Council shall not be subject to the direction or control of any other person or authority.

54(9) The Governor-General, acting in accordance with the advice of the Prime Minister given after consultation with the Leader of the Opposition, shall appoint one of the members of the Council to be the Senior Member.

54(10) The Chairman and in his absence, the Senior Member shall convene meetings of the Council as appropriate for consideration of matters which in accordance with this Constitution or any other law the Council is called upon to consider.

54(11) The Chairman and in his absence, the Senior Member, shall preside at all meetings of the Council, and in the absence of both the Chairman and the Senior Member, the member of the Council elected by a majority of the members attending the meeting shall preside at that meeting;

Provided that in any case where the Council is convened to discharge its duties under sections 88, 98,102, 105,108 or 109 of this Constitution or where the Council is convened to hear an appeal from an officer to whom section 106 or section 107 of the Constitution applies, the Chairman shall preside at that meeting:

Provided further that where the Council is convened to consider the removal of the Chairman, some other person who holds or has held office as a judge of a superior court of record appointed by the Governor-General on the advice of the Prime Minister given after consultation with the Leader of the Opposition shall act as the Chairman for that purpose."

20. The great officers of State can only be removed from office for cause by the Governor-General after the question of removal has been inquired into by the Advisory Council, under the Chairmanship of the Council's Chairman. The offices to which the proviso to section 54(11) relates, include a judge of the Court of Appeal, a member of the Boundaries Commission, a member of the Public Service Commission, the Director of Public Prosecutions and appeals from the Heads of the Civil Service, the Defence Force and Overseas Representatives Ambassadors and High Commissioners. What appears prima facie from the quoted provisions of section 54, is that while the Advisory Council can be chaired in the ordinary course of business by its Chairman, Senior Member or a member elected by the members present in the absence of the Chairman and Senior Member, when it comes to the most important functions of the Advisory Council, it is imperative that the Chairman should preside.

21. With this constitutional framework in mind, the appellant objected to Mr. Ellis Arnold, the Chairman of the Advisory Council, sitting as the Chairman of the Advisory Council to hear the referral from the Governor-General in reference to the Advisory Council. Two sets of complaints concerning the appellant were referred by the Governor-General to the Advisory Council. One of these complaints came from the Belize Bar Association. Mr. Arnold is a member of the Belize Bar Association. Pursuant to the Legal Profession Act of Belize, Chapter 320, Mr. Arnold is obliged to be a member of the Bar Association otherwise he would be unable to practice law in Belize. Mr. Arnold swore in an affidavit on 13 December 2001, (a) that he is an attorney-at-law and a member of the Bar Association of Belize, (b) that he did not attend at or participate at any Belize Bar Association meeting on 25 February 1999 when a resolution was passed against the appellant's continued tenure as a judge, (c) that he did not attend in or participate in any meetings of the Bar Association where complaints were made against the continued tenure in office of the appellant and (d) that the first time he knew the specifics of the allegations made against the appellant was when he received the reference from the Governor-General in this matter. Mr. Arnold confirmed that one Philip Zuniga, a member of the Bar Association, to whom objection was raised by the appellant recused himself and that the Advisory Council voted that he should remain as Chairman as otherwise the Advisory Council would be rendered powerless in the matter.

22. Blackman J. reviewed the submissions on behalf of the appellant, which were that, although it was accepted that Mr. Arnold did not possess any actual bias against the appellant, a real danger or reasonable apprehension, or suspicion of bias arose in the matter, as the Bar Association of Belize of which Mr. Arnold was a member, was a complainant and a prosecutor in the matter before the Advisory Council and the submissions of counsel on both sides on the applicable law and concluded:

"In the result, even though I am of the view that there was a real danger or reasonable apprehension or suspicion of bias to the Applicant's case by Mr. Arnold, a member of the Bar Association of Belize, one of the complainants, continuing to be Chairman of the Advisory Council, a view which I think will be shared by those assembled in Battlefield Park, on the basis of Wilkinson (supra) and the foregoing paragraph, I am constrained to refuse the Declaration sought that the Applicant had been deprived of his right to the Protection of the Law as guaranteed to him by Section 3(a) of the Constitution of Belize, notwithstanding Mr. Arnold's failure to recuse himself from the Chairmanship of the Advisory Council."

23. It is provided in section 40 of the Legal Profession Act, inter alia, that the Belize Bar Association shall have power to (a) deal with matters affecting the interest of the profession and its members and to take such action thereon as may be deemed appropriate, (b) to take such steps as may be proper and necessary to ensure that adequate rules regulating the etiquette and practice of the profession are formulated and enforced, (c) to prescribe and maintain the highest standards of learning, integrity, honour and courtesy in the legal profession and (d) to represent the Bar in matters concerning the profession and in relation to the court, the legislature and the Government of Belize and in any forum where the interest of the profession arises. Mr. Barrow submitted that the Bar Association is not a "cause association". It did not make and present a complaint of its own to the Advisory Council, it simply marshaled material that formed the complaint of others. The Bar, he submitted had no interest in the outcome of the inquiry but acted in performance of its statutory duty to promote, assist and ensure the proper administration of justice and unceasingly to watch over and protect the civil liberties of the people. In any event, said Mr. Barrow, the proceedings before the Advisory Council were an enquiry and not a trial. There was no evidence that Mr. Arnold was other than an ordinary member of the Bar Association. There was no evidence that he was ever a member of the Executive of the Bar Association. Mr. Barrow fervently addressed the training and traditions of the Bar and the fact that before taking office Mr. Arnold was compelled to take an oath to act impartially in any matter before him. For what it is worth, Mr. Arnold did swear in his affidavit placed before Blackman J. that he and the Advisory Council had acted fairly towards the appellant and had granted adjournments whenever they were desired by the appellant's legal representatives.

24. What then is the standard that ought to be applied by a court that is asked to determine the issue of bias? If a judge is himself a party to the cause or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias- In Re Pinochet [1991] UKHLI para. 32. Where the interest is neither financial nor proprietary, it must be substantial and the assessment of that has to depend on the particular circumstances of the case - Royance v The General Medical Council [1999] UKPC 16 (24 March 1999). In Porter v Magill, the House of Lords reviewed and modified its previous decision in R. v Gough [1993] 2 ALL ER 724 at 737-738 and held that:

"In determining whether there had been apparent bias on the part of a tribunal, the court should not longer simply ask itself whether, having regard to the relevant circumstances, there was a real danger of bias. Rather, the test was whether the relevant circumstances as ascertained by the court, would lead a fair minded and informed observer to conclude that there was a real possibility that the tribunal had been biased" - per Lord Hope at pare. 102."

25. As Lord Hope said, the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The House of Lords has said that the formulation of Lord Goff of Chieveley in R. v Gough (supra) should no longer be used. There Lord Goff had stated the test "in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias."

26. The Canadian case of Ruffo v Conseil de la Magistrature [1995] 4 S.C.R. (Canada), in which Chevalier LA. said that:

"....the apprehension of bias must be a reasonable one, held by reasonable and tight minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matters realistically, and having thought the matter through, conclude."

is in line with the decision of the House of Lords in Porter v Magill. So too is the decision of the Canadian court in Re Therrein [2001] SCC35 (October 10, 2001), para. 102, where Gontheir J. stated the rule in relation to bias to be:

"Would an informed person viewing the matter realistically and practically, and having thought the matter through, have a reasonable apprehension of bias."

27. The industry of counsel for the respondents has brought to our attention the very useful decision in South African Commercial Catering and Allied Workers Union & Ors. v. Irvin & Johnson Ltd. Sea Foods Division Fish Processing Case CCT 2/2000 (9 June 2000). In that case Cameron A.J. of the South African Constitutional Court formulated the test for bias as follows:

"...The question is whether a reasonable, objective and informed person would on the correct facts have reasonably apprehended that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submission of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predisposition. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves... The first consideration is that in considering the application for recusal, the court as a starting point presumes that judicial officers are impartial in adjudicating disputes. As later emerges from the Sarfu judgment, this in-built aspect entails two further consequences. On the one hand, it is the applicant for recusal who bears the onus of rebuffing the presumption of judicial impartiality. On the other, the presumption is not easily dislodged. It requires "cogent" or "convincing" evidence to be rebutted."

28. In my view the respondents submissions that the issue of bias did not properly arise in the case are well founded. The Bar Association was not acting as a complainant, prosecutor or judge in the matter. The proceedings before the Advisory Council were not adversarial proceedings. There was no lis inter partes before the Advisory Council.

29. The respondent, however, raised before the court below and before us the alternative proposition of law, that even if the court below was right to hold that there was an apprehension of bias, the common law exception of necessity applied and the trial judge correctly so found. It was submitted by Mr. Barrow that the common law of bias does not apply where Parliament provided by express mandatory words in an enactment that a specific person shall resolve specific disputes or shall preside at the resolution of such disputes. Where a statute imposes a duty upon an administrative authority in plain language, and appoints a specific tribunal for its enforcement, a party appearing before the tribunal must appear before the tribunal as established by the statute, despite any conflict as to the rule against bias - See How to Understand an Act of Parliament 1996- p. 61-62.

30. This common law exception was fully expressed by Asquith L.J. in Wilkinson v Barking Corporation [1948] 1 ALL ER 564, when he said:

    "It is undoubtedly good law that, where a statute creates a right and in plain language gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to this remedy or this tribunal and not to others.

In Wilkinson's case, the local authority and on appeal the Minister were on the facts of that case made "a judge in its own cause" nevertheless the court held that its duty was to construe the statutory provision and give it effect.

31. It is clear beyond doubt that in the first proviso to section 54(11) of the Belize Constitution, the Chairman of the Advisory Council, when it is called to consider the removal of a judge of the Supreme Court for misbehaviour, must preside. In my view therefore, Blackman J. correctly decided that Mr. Ellis Arnold was not under an obligation to recuse himself.

32. At the conclusion of the arguments before us on 26 June 2002, I announced the decision of the court and expressed our gratitude to counsel on both sides for the assistance which we had received in this difficult and interesting case. We promised to give our written reasons at the later date and I have expressed herein my reasons for concurring with the other members of the Court that the appeal should be dismissed with costs to the respondent, certified for two senior counsel, to be agreed or taxed.

_________________
ROWE, P.

MOTTLEY J.A.

I have read the judgments of Rowe, P. and Carey, J.A. I do not wish to add anything except to say that I agree that the appeal should be dismissed with costs.

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MOTTLEY, J.A.

CAREY, J.A.

1. The appellant was a justice of the Supreme Court of Belize. He was removed from office as at 18 September 2001 by the Governor General who considered a report and the recommendation of the Belize Advisory Council in relation to its enquiry pursuant to section 98(4) as read with section 98(7) of the Belize Constitution, into a complaint of the Belize Bar Association alleging misbehaviour on his part.

2. The Advisory Council concluded that the judge had misbehaved in the following circumstances:

   (i) Colluding with Mr. Gian Gandhi in preparing a judgment for a matter in which Mr. Gandhi was representing the appellant.

   (ii) Willing to improperly interfere with the functions of the justice system

   (iii)(a) Presiding over a cause or matter relating to a defendant with whom the judge had an intimate relationship
   
   (b) Bail Order without formal application being made.

   (iv)(a) Receiving gifts or money from litigants in cases to prejudice his duties as a judge
   
   (b) Holding himself out as willing to use his office for improper or illegal gains.

It is to be remarked that the evidence on which these findings were made, was never challenged by the judge in any way. He did not give evidence nor make any statement before the Advisory Council. In the face of these grave allegations, he maintained an inscrutable silence indeed.

3. Howsoever that may be, the recommendation that he should be removed from office was challenged by him by way of a constitutional motion before Blackman J on the grounds that his rights under sections 3(a), 6(1) and 6(8) of the Constitution had been contravened. With respect to the guarantees under these sections, the argument mounted was that he was being denied his right to the protection of the law in having a fair hearing before an independent and impartial tribunal. Essentially, it was being contended that the chairman should have recused himself on the basis of the real danger of bias, further, that the proceedings should have taken place publicly and finally, that the announcement of the advice of the Board should similarly have been made in public.

4. Blackman J found that, although there was a real danger or reasonable apprehension or suspicion of bias by reason of the Chairman's membership of the Bar Association of Belize, on the common law principle of "public necessity", the Chairman was nevertheless obliged to preside. Further, he held that the Advisory Council erred in having the hearings in camera, rather than in public and that the non-compliance with the statutory requirement for publication was more procedural than fundamental.

5. In the result, although the judge was disposed to grant one of the declarations sought, viz. that the appellant's right to a public hearing was infringed, he came to the conclusion that the Advisory Council would have reached the same decision, notwithstanding its error in having the hearings in camera rather than in public. He declined to grant any relief and declared that the appellant stood removed from office. He was persuaded to this view especially because, as he observed towards the end of his judgment, "...I am constrained to conclude that the (appellant) now accepts that the Tribunal was correct in accepting the evidence presented before it and in arriving at the conclusion it reached..." The appeal is taken against that decision of the learned judge.

6. On behalf of the appellant, the appeal was argued on a rather narrow front. Three grounds of appeal only were proceeded with before us. These were concerned with the issues of bias, the lack of publicity of trial and also of verdict. Ground I was in the following form:

   "... The learned judge erred and was wrong in law in holding that he was constrained to refuse the declaration sought that the applicant had been deprived of his right to the protection of the law as guaranteed to him by section 3(a) of the Constitution of Belize not withstanding Mr. Arnold's failure to recuse himself from his Chairmanship of the Advisory Council on the basis of the dicta of Asquith L.J. in Wilkinson v Barking Corporation [1948] ALL ER 564 @ 567 letter (b) and on the basis of the Rule of Public Necessity at Common Law…"

7. Mr. Wilfred Elrington for the appellant, put his argument in this way: The appellant, he said, had no quarrel with the tribunal: the proper body was appointed pursuant to the Constitution. The objection taken related to two persons on that body who were members of the Bar Association. He acknowledged that all attorneys admitted to practise in Belize are, as of course, members of the Bar Association; they have no choice in the matter. But Mr. Zuniga recused himself while the Chairman did not. I pause to note that this statutory obligation (sec. 43(1) Legal Profession Act) on the part of every Belizean attorney upon admission did not appear to be of any significance to counsel for it played no part in the submission deployed on behalf of the appellant with respect to the question of bias.

8. I was not altogether clear whether counsel was maintaining the argument put before Blackman J as it was before us that the fact that the Chairman was a member of the Bar Association automatically disqualified him from sitting. The judge must have concurred in that view for he found that there was a real danger of bias. He must also have accepted the argument before him which was advanced on the footing that the Bar Association was complainant and prosecutor, thus the chairman would be a judge in his own cause and that as the Bar Association would have an interest in the outcome, the chairman as a member of the Association would be disqualified automatically.

9. Howsoever the argument is put, in my opinion, it is unsound, as I propose to demonstrate.

10. I begin with the test approved in Taylor & anor. v Lawrence & anor. [2002] E.W.C.A. Civ. 90 at p.18 of 19 which is, "whether a fair-minded and informed observer would conclude that there was a real danger of bias" in the Chairman. The test is not what the anthropomorphic man -"the reasonable man" would think. It is not, with respect, as the judge adumbrated at p.71 of his judgment:-

    "...what would be the opinion of the average citizen of Belize assembled in Battlefield Park if asked, 'do you think that the (applicant) would have a fair trial in circumstances where the Chairman of the Tribunal is a member of the Bar Association of Belize, which Association is one of the claimants against the (applicant)? Do you think it is likely that Mr. Arnold may be biased against the (applicant)?"

Like the man on the Clapham omnibus of olden times, your average citizen of Belize assembled in Battlefield Park, undoubtedly qualifies as a reasonable man and accordingly fair-minded. But, it is open to grave doubt that he would inevitably qualify as an informed observer. So it is quite plain that the test which the judge applied, was not the correct test.

11. It is an informed observer who would have been aware of the fact that all members of the Bar are automatically members of the Bar Association, that Mr. Arnold, the Chairman, held no position of authority within the Bar Association and was not a party to the Bar Association's resolution which sought to impeach the appellant. I would presume then to borrow the felicitous language of Lord Woolf, CJ in Taylor & anor v Lawrence & anor. and observe that I regard it as unthinkable that an informed observer would regard it as conceivable that the Chairman, eminently qualified as he is required to be by the Constitution, would be other than fair and impartial at the hearings into the allegations made against the appellant.

12. For completion, I set out the qualifications of the Chairman to be found in section 54(1) of the Constitution which enacts as follows:

    "...There shall be a Belize Advisory Council (hereinafter referred to as "the Council") which shall consist of a Chairman who shall be a person who holds, or has held, or is qualified to hold, office as a judge of a superior court of record, and not less than six other members who shall be persons of integrity and high national standing of whom at least two shall be persons who hold or have held any office referred to in section 107 of this Constitution and at least one shall be a member of a recognised profession in Belize:

    Provided that no public officer other than a judge of a superior court of record shall be appointed as Chairman..."

This leads me to conclude that this was not therefore an occasion where there was any real danger or risk or suspicion of bias. Accordingly, I am unable to agree with the contrary view of Blackman J in this regard.

13. Relevant also to a consideration of this issue of bias is the first proviso to section 54(11) of the Constitution:

    …The Chairman and in his absence, the Senior Member, shall preside at all meetings of the Council, and in the absence of both the Chairman and the Senior Member, the member of the Council elected by a majority of the members attending the meeting shall preside at that meeting:

    …Provided that in any case where the Council is convened to discharge it duties under sections 88,98,102,105, 108 or 109 of the Constitution, or where the Council is convened to hear an appeal from an officer to whom section 106 or section 107 of the Constitution applies, the Chairman shall preside at that meeting:

    …Provided further that where the Council is convened to consider the removal of the Chairman, some other person who holds or has held office as a Judge of a superior court of record appointed by the Governor-General on the advice of the Prime Minister given after consultation with the Leader of the Opposition, shall act as the Chairman for that purpose...

The Council was convened to discharge its duties under Sec. 98 of the Constitution. In those circumstances, the Constitution mandates that the Chairman presides. It is equally dear that the Chairman will always be, at the least, a lawyer for otherwise he would be a judge or a former judge. The request for the recusal of the Chairman would have thus left the Tribunal bereft of its Chairman and a quorum and accordingly improperly constituted.

14. In declining the request that he should recuse himself, the Chairman correctly ruled that by the provisions of section 54(11), it was mandatory for the Chairman to preside, as follows:

    "...This Tribunal sits and functions because the Governor-General has referred to it for the investigation of the question of removing Mr. Justice George Meerabux, a Justice of the Supreme Court from office for misbehaviour. There is no other Tribunal competent to carry out the said investigation. The Chairman must remain ex necessitate since, if he were to recuse himself, he would thereby abdicate from his duty under the Constitution, and this Tribunal could not proceed leading to a failure of justice..."

15. It was the contention of the appellant that the rule of public necessity was inapplicable as such an occasion as occurred in the instant case, had been provided for in section 54(11) of the Constitution, by which he was to be understood as saying that the Senior Member or the member elected by a majority should preside.

16. The short answer to this submission is that the first proviso to the section qualifies the effect of sec. 54(11) and makes it plain that in the circumstances mentioned in the first proviso, different conditions apply. Counsel was eminently correct when he suggested that the Constitution did provide for the occasion which arose, albeit not in the manner for which he was contending. I did not understand Mr. W. Elrington to be arguing that the Advisory Council had convened to consider the removal of the Chairman (the second proviso). It had met to consider proceedings pursuant to sec. 98 involving the conduct of the appellant. Circumstances warranting the need to invoke the rule of public necessity did not, in my judgment, exist in this case, because the chairmanship by Mr. Ellis Arnold of the council into the inquiry did not present any real risk or danger or suspicion of bias whatsoever.

17. 17. One of the points also advanced on behalf of the appellant with a view to showing that the judge was wrong to hold that a case of necessity arose, was that the Governor General could have appointed some other person to act in place of the chairman. But this is to stand commonsense on its head. Any person appointed chairman, would unless a serving or former judge automatically be a member of the Bar Association and accordingly being, ex hypothesi tainted, would have perforce to recuse himself. And of course, this is to assume without necessarily accepting that the Governor General in that situation has the power to appoint an acting chairman. Mr. Elrington was of opinion that such a power was conferred on him by the second proviso to section 54(11) of the Constitution which has earlier been recited. But a reading of that proviso would show, beyond a peradventure, that it is entirely inapposite to achieve that object.

18. There is, I would like to suggest, a more fundamental reason why the chairmanship of Mr. Ellis Arnold over the enquiry into the appellant's conduct was not an occasion of bias. It is this, that the development of the law in this area has been concerned with the disqualification of judicial officers or arbitrators for interest or bias. It had long been laid down and accepted that no one could be a judge in his own cause. There is no doubt that a party to proceedings or one who had any direct pecuniary interest in the result was not qualified at common law to adjudicate in those proceedings. See the observations of Lord Browne-Wilkinson in Re Pinochet (1999) U.K. HL1 Para 32.

19. No trial was in train before the Advisory Council. The Governor-General had, pursuant to sec 98 of the Constitution, referred to the Advisory Council for investigation, the question of the removal of Mr. Justice Meerabux from office for misbehaviour. That body sat to investigate, to sift facts and determine where the truth lay. If that be right, then, there was no cause. Nor was there even a judge to have a cause. It follows that the Chairman could not then be a party to a cause.

The Solicitor General helpfully drew our attention to a Canadian case of Ruffo v. Conseil de la Magistrature [1995] 4 S. C. R. 267, a case concerned with an enquiry into the conduct of a judge of the Court of Quebec, Youth Division. The question of bias arose in that case, hence its relevance to the instant case. Gonthier J described the nature of the proceedings in this way:

Para 72"..... As I noted earlier, the Comite's mandate is to ensure compliance with judicial ethics; its role in this respect is clearly one of public order. For this purpose, it must inquire into the facts to decide whether the Code of Ethics has bean breached and recommend the measures that are best able to remedy the situation. Accordingly, as the statutory provisions quoted above illustrate, the debate that occurs before it does not resemble litigation in an adversarial proceeding; rather, it is intended to be the expression of purely investigative functions marked by an active search for the truth.

Para 73"... In light of this, the actual conduct of the case is the responsibility not of the parties but of the Comite itself, on which the CJA confers a pre-eminent role in establishing rules of procedure, researching the facts and calling witnesses. Any idea of prosecution is thus structurally excluded. The complaint is merely what sets the process in motion. Its effect is not to initiate litigation between two parties. This means that where the Conseil decides to conduct an inquiry after examining a complaint lodged by one of its members, the Committee does not thereby become both judge and party: as I noted earlier, the Committee's primary role is to search for the truth; this involves not a lis interpartes but a true inquiry in which the Committee, through its own research and that of the complainant and of the judge who is the subject of the complaint, finds out about the situation in order to determine the most appropriate recommendation based on the circumstances of the case before it…"

In my view, the position of the Advisory Council was no different from the Comite d'enquete set up to hear the complaint against Justice Andree Ruffo of the Court of Quebec. The Advisory Council was similarly charged with Investigating the facts surrounding the misbehaviour of the appellant.

20. For this reason also, I would hold that there was no occasion for the apprehension of bias to arise. The Chairman acted quite correctly and was right not to recuse himself. It would have been quite wrong for the Chairman to yield to a tenuous or frivolous objection. See the observation of the court in Locabail Ltd v Bayfield Properties [2000] 1 ALL ER 65 at
    p.76.

21. I can now turn to grounds 2 and 4 which were argued together.

GROUND 2:

The learned Judge erred and was wrong in law in finding that the failure on the part of the Belize Advisory Council to hold a public hearing was more procedural than fundamental.

GROUND 4

The learned Judge erred and was wrong in law in concluding that notwithstanding that the Belize Advisory Council had failed to announce its findings or decision in public, nonetheless, the Appellant's right to a public hearing under section 6(8) of the Belize Constitution was not violated and there was no obligation on the Advisory Council to announce its decision in public.

22. The real issue which arises on ground 2 is whether Mr. Elrington is right that section 6(8) of the Constitution creates a constitutional imperative requiring the hearing to have taken place in public, the sanction for non compliance with that imperative being a resulting nullity. Section 6(8) of the Constitution provides as follows:
    
    "…Except with the agreement of all the parties thereto, all proceedings of every court and the proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority shall be held in public…"

23. Counsel argued with great passion that the principle of a public hearing was a fundamental one. The appellant had pressed for a public hearing but neither the hearing nor the issuance of the order by the Advisory Council was made in public. It was submitted that by virtue of the absence of the public announcement, the appellant was not afforded any opportunity to make representations as to his fate. The Advisory Council had conducted an inquiry it was not mandated to do, and thereby acted ultra vires. He cited Anisminic Ltd. v The Foreign Compensation Commission & ors. [1969] 1 ALL ER 208 at p.233 where Lord Pearce observed:

    "... Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice or it may ask itself the wrong questions; or it may take into account matter which was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its enquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity…"

He ended by saying that there was a flagrant violation of section 6(8) despite the strong objection of the appellant. The tribunal had acted on its own and the judge should have declared the proceedings a nullity. The like argument he said applied to ground 4.

24. The Solicitor General's response was put in this way: Even if it could be said that section 6(8) of the Constitution creates an absolute imperative, it is qualified by section 6(9) and when read with section 54(13), (which allows the Advisory Council to regulate its own proceedings) it authorized
    what was done in the proceedings before the Advisory Council. It is helpful to set out the provisions of section 6(9)(a) of the Constitution at this point:-

    "... Nothing in subsection (8) of this section shall prevent the court or other competent authority from excluding from the proceedings persons other than the parties thereto and the legal practitioners representing them to such extent as the court or other authority-

(a) may by law be empowered to do and may consider necessary or expedient in circumstances where publicity would prejudice the interest of justice or in interlocutory proceedings or in the interest of public morality, the welfare of persons under the age of 18 years or the protection of the private lives of persons concerned in the proceedings.

25. The Solicitor General pointed out that there was affidavit evidence before the Advisory Council when it was considering whether the proceedings should be held in camera or not which showed that the administration of justice and the private lives of persons concerned in the proceedings, were likely to be prejudiced. Further, he said, the decision of the Advisory Council was correct in relying on section 54(13) to hold the enquiry in camera.

26. Blackman J held that there was a constitutional imperative to hold the hearings in public pursuant to section 6(8) of the Constitution, and granted the declaration prayed for on that basis. In arriving at this decision he dismissed as "sanctimonious humbug" the consideration by the Advisory Council of the well-being of the applicant. But with all respect to the learned judge, that body in the light of the evidence which was to be adduced, considered the interest of justice and the protection of the private lives of persons concerned in the proceedings. I would have thought that the Advisory Council considered all the relevant circumstances and came to a decision which was neither unreasonable nor irrational nor did it call for any interference on a constitutional motion alleging non-compliance with section 6(8) of the Constitution.

27. I found some difficulty in following the learned judge, where at para 47 he held that because the Advisory Council failed to publish rules made on 4 May 2001 in the Gazette, "that nullified the Council's intent to hold the proceeding in camera". That failure to comply with the statutory requirement for publication, he regarded as more procedural than fundamental. I am not clear how what was deemed a procedural breach translated itself into a constitutional breach so as to allow the grant of a declaration that the appellant had been deprived of his right to a public hearing.

28. It was also submitted by the Solicitor General that section 6(8) contemplates circumstances where a plaintiff brings an action to the court or other authority to determine if any of his civil rights or obligations had been infringed. This must be right: it represents the plain grammatical meaning of the provision. The mandate of the Advisory Council was not to determine any civil right or obligation of the appellant: it was mandated by the Governor-General pursuant to section 98 of the Constitution to enquire into complaints made against the appellant. The observations of Gonthier J in Therrien 2001 SCC 35 para. 103 - a Canadian case, which was concerned with an enquiry into the conduct of the appellant who having served a term of imprisonment failed to disclose this information when he submitted his candidacy to be selected a judge and was duly appointed are apt:-

"... My comments in Ruffo, supra, regarding the nature of the mandate assigned to the committee of inquiry provide some insight that is useful for disposing of this question. Thus, at paras. 72-74, I said:

Accordingly, as the statutory provisions quoted above illustrate, the debate that occurs before it does not resemble litigation in an adversarial proceeding: rather it is intended to be the expression of purely investigative functions marked by an active search for the truth…"

29. If this is right, as I think it is, then it follows that section 6(8) is not applicable to an enquiry such as this which was one into the complaint made against the appellant. It plainly was not adversarial proceedings: there were no parties. Mr. Elrington did not make any such submission. In the result, I must, with all respect, differ from the view and conclusion of the judge in the court below.

30. The short answer to the ground complaining that the judge erred in concluding that notwithstanding that the Belize Advisory Council had failed to announce its findings or decisions in public, nonetheless the appellant's right to a public hearing under section 6(8) of the Belize Constitution was not violated, is that neither section 6(8) nor section 6(9) is applicable to enquiries.

31. Finally, the fact that the grave allegations made against the appellant were not challenged, left counsel for the appellant faced with a formidable hurdle. Perforce counsel were then constrained to put forward technical points but these, it must be said, were quite unmeritorious. The removal of a judge in the Commonwealth Caribbean is a uniquely historic event. But it can give no joy to have to confirm this lugubrious reality. The appellant might well consider that in the interest of all, this litigation should now end.

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CAREY, J.A.