Appointment of 'silk' goes to court

PROMINENT and outspoken attorney Israel Khan, SC, says the President, in appointing senior counsel, or “silk,” should not do so on the advice of the Cabinet, a minister or the prime minister.

Instead, he says the President should make such appointments in her own discretion or on the advice of anyone, or authority, other than the Cabinet, including the chief justice.

His contentions are set out in a civil claim for interpretation by the High Court. In it, Khan wants the court to pronounce on the correct procedure for the appointment of silk.

The application, filed by his attorneys Ravi Heffes-Doon, Daniel Khan and Vincent Patterson, says Khan is not seeking an advisory opinion on a hypothetical matter, as it was one which was of real practical significance.

The claim also seeks declarations that it is unlawful for the President to act on the advice of the Cabinet and that she is required to act on her own discretion or on the advice of anyone, or authority, including the chief justice but not the Cabinet.

It says any finding or declaration of the court will not apply to those senior counsel appointed before the claim was filed.

The interpretation claim says if the President is required to act in accordance with a legal notice gazetted in 1964, which provides for an appointment after advice is received from the prime minister, then it would be inconsistent with the Constitution and ultra vires her powers.

Senior counsel is a rank in the legal profession and recognises the status of an attorney which is recognised in common law and the Constitution. Those appointed senior-counsel status are also afforded precedence over other attorneys in the courts.

The claim questions if it was proper for the Cabinet to choose which attorney should get the honour of silk.

It referred to the position of the Attorney General, in pre-action correspondence, who maintained that senior counsel should be appointed by the President on the advice of the prime minister.

The 1964 legal notice set out the procedure for the appointment of what was then queen’s counsel, since TT had not yet become a republic. The 1964 notice said appointments were to be made by the governor general on the advice of the prime minister. When an application was received, the attorney general is then required to consult the chief justice, or “such other persons or bodies” he considers necessary, but is under no obligation to do so.

After such consultation, the AG is required to submit his recommendation to the prime minister, who will advise the President.

It was the AG’s position that the 1964 notice was saved law, not amenable to challenge, and he was bound by it.

Khan, however, says the notice did not purport to be a law, nor could it be saved law. Regardless, his claim says the 1964 notice was irrelevant.

It also said the independence of the bar was inimical to the rule of law and regulation of the profession, by Cabinet, to select silk was inconsistent with the Constitution and the powers it gives the President.

The claim pointed to other jurisdictions where attorneys have to apply to the Supreme Court for silk status and are appointed by the head of state on the recommendation of the chief justice.

It also quoted then Opposition Leader Dr Keith Rowley in December 2011 as saying the award should not be left in the hands of a “self-serving political directorate.”

This followed a public uproar when CJ Ivor Archie, then Justice of Appeal Wendell Kangaloo and 14 other lawyers, including DPP Roger Gaspard and then prime minister Kamla Persad-Bissessar and her attorney general, were awarded senior-counsel status by the People’s Partnership regime. Archie and Kangaloo subsequently returned their instruments of appointment.

It also referred to a December 2005 report of a committee established by the Law Reform Commission set up to review the appointment process for senior counsel. That committee recommended that appointments should reside with an independent panel, but the President should continue to make formal appointments.

Also referred to were letters by former CJ Michael de La Bastide, who agreed senior counsel should be appointed by an independent panel and not politicians, and former AG and head of the Law Association Karl Hudson-Phillips, who said there was a need to set up a board to appoint senior counsel.

Also quoted were a Newsday editorial on the appointment process; another review in 2012 by the Law Reform Commission; and a 2015 resolution of the Law Association that the award should be granted by the President on the recommendation of an independent panel. It also called for its recommendations to be immediately implemented.

Current AG Reginald Armour, SC, was president of the association at that time.

The association’s resolution came after it compiled a report on the issue which strongly advocated for the independence of the profession and in particular the bar.

Khan complained of the lack of appointment of senior counsel to the criminal bar. He heads the Criminal Bar Association and is the most senior practising senior counsel at the criminal bar. He was also nominated for president by the United National Congress, earlier this year, but was rejected.

Although not referred to in Khan’s claim, the issue of the appointment of lawyers to the inner bar was raised by the Law Association again in 2018 when three lawyers were appointed senior counsel, which called for the process to be more “transparent.” Since then, there have been no appointments.

“There is no established or uniform requirement for notice to the profession that the appointment of silk is under consideration, for the making of applications, or for consultation among stakeholders,” then association president Douglas Mendes, SC, said in a letter to then AG Faris Al-Rawi.

“It is not fair that the future career of members of the profession should be determined or influenced by the views of unnamed persons received in secret, in the course of a process which was not announced to be in train, with the result that other members of the profession of demonstrated merit may not have been given the opportunity to throw their hat into the ring and be considered,” he argued.