Debate on lawyers getting silk reaches the court

THE debate over the appointment of a select stratum of legal luminaries, known as senior counsel, or “silk,”’ has reached the court.

Prominent and outspoken attorney Israel Khan, SC, has asked the High Court to declare the current procedure for appointing silk unconstitutional, as he claims it breaches the separation of powers because the Prime Minister is involved in the selection process.

On September 10, Justice Devindra Rampersad heard oral arguments in Khan’s interpretation claim, filed in 2023, which calls on him to identify the correct procedure for the appointment of silk.

Rampersad will give his decision on November 29.

Khan’s position, advanced by his attorneys Ravi Heffes-Doon, Daniel Khan and Vincent Patterson, is that the President, in appointing senior counsel, 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 at her discretion or on the advice of anyone, or authority, other than the cabinet, including the chief justice. The exercise of the presidential power should not be on the advice of the cabinet or prime minister, his claim asserts.

In submissions, Heffes-Doon said the appointment was not a mere honorary title, but a promotion and elevation to a higher rank and the independence of the legal profession was crucial for the administration of justice. This, he said, was the will of the Parliament.

Heffes-Doon said the power to appoint senior counsel was not contained in the Constitution but in the Constitution Act.

“There is nothing in the Constitution to appoint senior counsel.”

The appointment was a prerogative power limited by statute, he said.

Heffes-Doon said the legal profession had a duty to guard its independence scrupulously and painstakingly.

He admitted Khan was concerned about political inference in the bar and that the selection and the appointment of its leaders were important.

“It is not honourific. This isn’t like getting a Hummingbird Medal (a national award). It is a quintessential role.”

The Executive, he said, should not have this power.

“The bar is regulated by the Parliament, disciplinary committee and judges. The bar needs to be regulated in the public interest.”

He admitted it would be “odd” if the President exercised a common-law power.

Heffes-Doon said the grant of the right of audience and the relationship between the bench and the bar by the Executive was a trespass.

“Attorneys at law are not superheroes. We are human beings who are subject to normal pressures and inducements in the process of promotions.

“Challenges from the profession would be unimpeded if they (lawyers) are not subject to the Executive for promotion. It is inimical to the rule of law and the process of the law. The independence of the legal profession is critical to the administration of justice.”

He said the separation of powers must be preserved.

As he referred to letters from former presidents of the Law Association (LATT) – which is an interested party in the case – calling for a fair and transparent procedure, Heffes-Doon called on the judge to grant the declaration Khan sought that the current appointment process was inconsistent with the Constitution and ultra vires the powers of the President.

Khan’s 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 discretion or the advice of anyone, or authority, including the chief justice but not the cabinet.

It also 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 following 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 granted senior-counsel status are also given a right of precedence over other attorneys in the courts.

The 1964 legal notice set out the procedure for the appointment of what was then Queen’s Counsel, since Trinidad and Tobago 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 is 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.

Khan’s claim questions whether it was proper for the cabinet to choose which attorney should get the honour of “silk.”

Senior Counsel Russell Martineau, a former LATT president and attorney general, advanced the position of the Attorney General, maintaining that senior counsel should be appointed by the President on the advice of the prime minister.

Martineau maintained the appointment of silk was an executive function

“It is and has always been. It is not judicial and never was.”

He said no law allowed the Judiciary to do what was conferred on the President and the Executive. He also warned against putting the Judiciary in the “contentious position” of deciding who should get the honour.

“We don’t want to expose them to that. They do have a consultative role. They are stakeholders.”

Martineau said senior counsel was a rank, a status and not a promotion.

“It is an honorific position. It is equivalent to a Trinity Cross. There are no legal rights attached… The State gives you that status. The Judiciary cannot.”

In response to questions from the judge on the way senior counsel are regarded by the court, Martineau said it was the rules that directed judicial officers to do so.

“We are dealing with the appointment and the consequence of that is up to the judges. The President gives a status…Then the court picks it up from there and does what it wants.

“The consequences are what the Judiciary and the profession have chosen to give it. It is a privilege and courtesy given to you. It is an honour, but the appointment is an executive power.”

Martineau said senior counsel was a title and their functions are contained in the Legal Profession Act. He said not even the LATT had a mandate to appoint senior counsel.

“But it is the State that exercises that power, through the President.

“Let the executive take the blows for the appointment of senior counsel, not judges. Up to the judge to decide what courtesies you give.”

In submissions on behalf of the LATT, former attorney general Ramesh Lawrence Maharaj, SC, said there was no question of the law on the selection of silk being unconstitutional, but the association’s position was that it “ought to be changed.”

“There is no basis for contending the exercise of power by the President would, in effect, be unconstitutional.”

However, he said that change had to come from the Executive and legislature, not the judicial arm of the State.

He also disagreed that the LATT had no role in the process. He said the 1964 legal notice settled the policy and practice for consultation with the association, and asked the court to give effect to that in his declarations.

As he referred to the origins of senior counsel, Maharaj said the appointment was always vested in the Executive arm of the State.

He also referred to LATT’s report by one of its committees, in 2015, which passed a resolution that the award of silk should be granted by the President on the recommendation of an independent panel. It also called for its recommendations to be immediately implemented.

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.

In June, the appointment of 16 attorneys rekindled the raging debate over the selection process.

Also appearing for the Attorney General are Kerwyn Garcia, SC, Zara Smith, Victoria Armorer and Ronelle Hinds. Michael Rooplal, Saira Lakhan, Nabilah Khan, Jonathan Khan, Vishala Khadoo and Lindsay Webb.