2022-UNAT-1240, Ayesha Al Rifai
The UNAT noted that the simple issue arising in this appeal was whether it was appropriate and correct for the judge to have proceeded with the application for review of the contested decisions while the motion for recusal was pending. The UNAT held that the straightforward answer is that it was not.
An application for recusal can be brought at any time in the proceedings and is usually a difficult strategic choice for the party making the challenge. Such an application is made, typically, at the moment the party loses confidence in the judge. Its timing will depend on the circumstances. The categorization of Ms. Al Rifai’s motion as “belated” (by filing on the eve of the hearing) is therefore unconvincing and inconsequential. The tactical choice in the course of litigation was hers.
Once a challenge to the judge’s partiality is made, his or her authority is rendered ambiguous. The legality of the judge continuing with the trial or application of the merits of the dispute is brought into question by the motion for recusal. It therefore stands to reason that the legal and moral ambiguity of the judge’s authority must then be immediately and summarily determined before the matter can proceed.
Ms. Al Rifai’s election to withdraw and not participate until the preliminary issue was decided was a reasonable and legitimate response in the circumstances, whatever the merits of the recusal application or, for that matter, the application for the review of the contested decisions.
The contention that Ms. Al Rifai filed the recusal motion tactically to delay the proceedings until the judge’s term of office had expired is speculative and not supported by any convincing evidence. The Internal Justice Committee made its ruling on the recusal motion two weeks before the expiry of the judge’s term of office, suggesting that a postponement of the hearing was practically feasible. But, in any event, the exigencies of the judge’s schedule cannot override the fundamental procedural right of a party to have her challenge to the legality of the proceedings determined prior to a determination of the merits of her claim.
In the final analysis, the UNAT held that the UNRWA DT committed an error of procedure, as contemplated in Article 2(1)(d) of the Statute of the UNAT. The error was consequential in that it denied Ms. Al Rifai the opportunity to fully present her case to the UNRWA DT and to cross-examine adverse testimony. There has not been a full and fair trial of the issues, and hence the procedural error was such as to affect the decision of the case.
The UNAT held that the UNRWA DT judgment must be reversed, and that the appropriate remedy was to remand the case for determination by a different judge.
The Appellant appealed Judgment No. UNRWA/DT/2021/015, in which the UNRWA Dispute Tribunal dismissed her application contesting a decision to separate her from service and close an investigation into her complaints.
Appellant also contested that the UNRWA DT issued its judgment, notwithstanding that she had a pending motion for recusal of the presiding judge.
An allegation of judicial bias is a serious matter. It is a fundamental principle of the rule of law that judicial and quasi-judicial decision-makers ought to be impartial. The rule against bias rests on the common-sense view that the proper administration of justice depends on there being confidence and faith in the administrative and judicial process. This requires that justice not only be done but be seen to be done. Thus, there is no need to prove actual bias; it is enough for the purposes of recusal for there to be a reasonable apprehension of bias.
The appeal is upheld, Judgment No. UNRWA/DT/2021/015 is reversed, and the case is remanded to the UNRWA DT for determination de novo and ab initio by another judge.