Many historical facts concerning the appointment of silk have been obscured, distorted and have become the casualty of this latest round of casualties, as many seize the opportunity to engage in yet another round of ‘government bashing”.
And and make no mistake, the root of this contrived controversy is the now popular sport of "government bashing". (It is as though, for those consumed with this new activity, the appointment of silk was like the proverbial lamppost waiting for a passing dog!)
We need to look at the facts.
PRECEDENT FOR A SERVING CHIEF JUSTICE AND PRIME MINISTER
Only three lawyers have been appointed as Prime Minister in our short political history: ANR Robinson, Basdeo Panday and Kamla Persad-Bissessar. Two out of the three have "taken silk" or "silked themselves".
We need to look at the facts.
PRECEDENT FOR A SERVING CHIEF JUSTICE AND PRIME MINISTER
Only three lawyers have been appointed as Prime Minister in our short political history: ANR Robinson, Basdeo Panday and Kamla Persad-Bissessar. Two out of the three have "taken silk" or "silked themselves".
The complaints of political bias and corruption or a questionable selection process were never raised by any of the senior silks who gave Mr. Robinson’s appointment a silent stamp of approval.
Indeed, my learned friend Karl Hudson Phillips was a major political figure in the NAR at the time ANR Robinson took silk in 1988. Silk was also conferred by the NAR regime on a sitting Chief Justice and conferred silk onto Chief Justice Clinton Bernard.
Indeed, my learned friend Karl Hudson Phillips was a major political figure in the NAR at the time ANR Robinson took silk in 1988. Silk was also conferred by the NAR regime on a sitting Chief Justice and conferred silk onto Chief Justice Clinton Bernard.
Karl was the political leader of the ONR which was a main component of the NAR.There is no record of any objection on the grounds now put forward. Why did Karl not publish the letter of objection which he now claims to write on principle? The process, offices involved and circumstances were identical.
Are we to assume that it was correct then but wrong now? Were these principles, considered so sacrosanct, dormant then but have suddenly sprung to life, now that, coincidentally, a People’s Partnership Government is in office, preoccupied with lifting the country out of the mire of maladministration that preceded it?
At the time CJ Bernard was appointed Senior Counsel on the advice of Prime Minister Robinson, the President of the Law Association at the time was none other than Michael de La Bastide (President of the Law Association from 1987-1990). Like Karl there is no evidence of any objection from him then! Why did Mr De La Bastide not publish the letter of objection he now writes back then?
I have searched the newspaper records to get a copy of the picture of Mr De La Bastide and Hudson Phillips marching around the Hall of Justice or fasting outside President’s House to register their objection to what they now say was the creation of a bad precedent. Interestingly, I have found none.
It would also appear that Martin Daly SC, somehow missed the donkey cart that was being driven through the judiciary then.
PERSAD BISSESSAR’S CAREER
Persad-Bissessar, like Robinson, enjoyed an active law practice. She has been an Attorney-at-Law for 24 years and, (unlike many of the silks who are presently complaining) represented the poor and dispossessed.
At the time CJ Bernard was appointed Senior Counsel on the advice of Prime Minister Robinson, the President of the Law Association at the time was none other than Michael de La Bastide (President of the Law Association from 1987-1990). Like Karl there is no evidence of any objection from him then! Why did Mr De La Bastide not publish the letter of objection he now writes back then?
I have searched the newspaper records to get a copy of the picture of Mr De La Bastide and Hudson Phillips marching around the Hall of Justice or fasting outside President’s House to register their objection to what they now say was the creation of a bad precedent. Interestingly, I have found none.
It would also appear that Martin Daly SC, somehow missed the donkey cart that was being driven through the judiciary then.
PERSAD BISSESSAR’S CAREER
Persad-Bissessar, like Robinson, enjoyed an active law practice. She has been an Attorney-at-Law for 24 years and, (unlike many of the silks who are presently complaining) represented the poor and dispossessed.
While in Opposition, she sued the State in several matters challenging the Caribbean Court of Justice, the non-appointment of the Criminal Injuries Compensation Board, the DPP over his failure to prefer criminal charges against Dr Rowley over the tea cup incident, land matters, election petition cases (both here and in St. Kitts). She also advised on several constitutional matters relating to Mr Panday’s cases and his suspension from Parliament.
Persad-Bissessar is also a former Attorney General. In many countries in the Commonwealth, she would have been entitled to take silk ex officio on this basis alone.
Persad-Bissessar is also a former Attorney General. In many countries in the Commonwealth, she would have been entitled to take silk ex officio on this basis alone.
In Jamaica and Barbados, for example, Attorneys General have routinely been appointed silk as titular head of the Bar. Her contribution to the development of the law in her capacities as AG and Minister of Legal Affairs is significant and was referred to by President in his introductory remarks at the ceremony last week.
If the then President of the Law Association De La Bastide, and eminent silk such as Karl Hudson Phillips and Martin Daly voiced no alarm or objection then with the precedent which we followed was set and created in 1988, why is the government and certain recipients of the silk now subjected to such intense criticism?
NEED TO REFORM THE SYSTEM
It is noteworthy that many of the Senior Counsels that are now objecting and complaining about the system are past Presidents of the Law Association (De La Bastide, Daly, Hudson Phillips). One is left to wonder why they did not seek to change the system during their tenure. And if they accepted the system then, why has it suddenly become so unacceptable and bad? The system for the appointment of silk has not changed much since Independence.
BREACH OF THE SEPARATION OF POWERS
The idea that the appointment of judges as Senior Counsel could compromise their independence and breaches the doctrine of Separation of Powers in absurd. Some have suggested that national awards might be more appropriate. Are national awards not also based on the ultimate advice and recommendations of the Prime Minister? Would that not be subjected to similar criticism? Judges would be accepting awards from the Executive that are in the prerogative of the Office of the Prime Minister.
Individual independence and integrity of judges are not compromised by the conferring of an award or honour by the Executive arm of the State. This has long been recognized in our system by virtue of the conferring of national awards to sitting judges (for example, Justice Ibrahim and CJ Sharma). Likewise, in the UK, the Crown routinely confers titles and awards on sitting judges.
APPOINTMENT OF THE AG AS SC
Mr. Karl Hudson Phillips was the first AG to confer silk on himself in 1970 after a mere 10 years at the Bar (He had less than 5 years’ experience at the Bar prior to his appointment as AG). Subsequently, Ramesh Lawrence Maharaj and John Jeremie took silk. There was no objection then.
Anand Ramlogan has, during his 15 years at the Bar, represented the poor and downtrodden at all levels. He has been involved in 45 cases at the Privy Council – a record surpassed only by Sir Fenton Ramsahoye QC.
If the then President of the Law Association De La Bastide, and eminent silk such as Karl Hudson Phillips and Martin Daly voiced no alarm or objection then with the precedent which we followed was set and created in 1988, why is the government and certain recipients of the silk now subjected to such intense criticism?
NEED TO REFORM THE SYSTEM
It is noteworthy that many of the Senior Counsels that are now objecting and complaining about the system are past Presidents of the Law Association (De La Bastide, Daly, Hudson Phillips). One is left to wonder why they did not seek to change the system during their tenure. And if they accepted the system then, why has it suddenly become so unacceptable and bad? The system for the appointment of silk has not changed much since Independence.
BREACH OF THE SEPARATION OF POWERS
The idea that the appointment of judges as Senior Counsel could compromise their independence and breaches the doctrine of Separation of Powers in absurd. Some have suggested that national awards might be more appropriate. Are national awards not also based on the ultimate advice and recommendations of the Prime Minister? Would that not be subjected to similar criticism? Judges would be accepting awards from the Executive that are in the prerogative of the Office of the Prime Minister.
Individual independence and integrity of judges are not compromised by the conferring of an award or honour by the Executive arm of the State. This has long been recognized in our system by virtue of the conferring of national awards to sitting judges (for example, Justice Ibrahim and CJ Sharma). Likewise, in the UK, the Crown routinely confers titles and awards on sitting judges.
APPOINTMENT OF THE AG AS SC
Mr. Karl Hudson Phillips was the first AG to confer silk on himself in 1970 after a mere 10 years at the Bar (He had less than 5 years’ experience at the Bar prior to his appointment as AG). Subsequently, Ramesh Lawrence Maharaj and John Jeremie took silk. There was no objection then.
Anand Ramlogan has, during his 15 years at the Bar, represented the poor and downtrodden at all levels. He has been involved in 45 cases at the Privy Council – a record surpassed only by Sir Fenton Ramsahoye QC.
He has been an Advocate in many landmark and historic cases and the only explanation for the failure to appoint him as Senior Counsel before is that fact that most of his cases were against the PNM administration. Not even his relative youth! If the records are correct Daly sought and took silk in his thirties!
The Guardian Newspaper editorial (January 5) called upon the present Prime Minister and AG to return their Instruments.
The Guardian Newspaper editorial (January 5) called upon the present Prime Minister and AG to return their Instruments.
This would “demonstrate that they prefer to seek silk only via the dignity of the distance from influential public office, rather than risk the reputation of being self-serving while in a position of power”.
Curiously, this call was limited to Mrs. Persad-Bissessar and Mr. Ramlogan. In as much as ANR Robinson, Karl Hudson Philips, Ramesh Lawrence Maharaj and John Jeremie benefited under the same system and attained silk in identical circumstances, why was the call limited to the present PM and AG?
SENIOR COUNSEL RESERVED FOR ADVOCATES
The argument that Senior Counsel is reserved for Advocates who have demonstrated excellence and distinguished themselves at the Bar is specious and disingenuous. Unlike England we have a fused profession in Trinidad and Tobago. This means that there are no Barristers or Solicitors. There are only Attorneys-at-Law who can function and perform both roles.
This major difference merited a different approach in our country. Hence the reason Gerald Furness Smith, who was not a Counsel, but a Solicitor was appointed SC some 25 years ago. Likewise, Mr. John Jeremie, a university lecturer and non-Advocate, took silk without any objection.
EVOLUTION OF SENIOR COUNSEL
The appointment of Senior Counsel has therefore been expanded and developed to meet our unique socio-legal realities. Important law office holders such as the DPP, the Solicitor General and the Chief Parliamentary Counsel have been appointed in recognition positions they occupy in the legal apparatus of the State.
SENIOR COUNSEL RESERVED FOR ADVOCATES
The argument that Senior Counsel is reserved for Advocates who have demonstrated excellence and distinguished themselves at the Bar is specious and disingenuous. Unlike England we have a fused profession in Trinidad and Tobago. This means that there are no Barristers or Solicitors. There are only Attorneys-at-Law who can function and perform both roles.
This major difference merited a different approach in our country. Hence the reason Gerald Furness Smith, who was not a Counsel, but a Solicitor was appointed SC some 25 years ago. Likewise, Mr. John Jeremie, a university lecturer and non-Advocate, took silk without any objection.
EVOLUTION OF SENIOR COUNSEL
The appointment of Senior Counsel has therefore been expanded and developed to meet our unique socio-legal realities. Important law office holders such as the DPP, the Solicitor General and the Chief Parliamentary Counsel have been appointed in recognition positions they occupy in the legal apparatus of the State.
The DPP and Solicitor General can and do appear in Court in the more important matters They are not Counsel. They do not go to The Chief Parliamentary Counsel may not go to the Court but his or her contribution to the law is an invaluable one Court; but their contribution is invaluable and their office deserving of the status of SC. Deceased Justice Richard Crane was made silk whilst he was Chief Parliamentary Counsel . So too was retired Judge Monica Barnes.
The offices of Chief Justice and Judge also fall into this category. The appointment of silk is an honour befitting the office in light of the contribution of the office holder to the law. In England, the Crown also confers titles and honours on judges. These persons perform at the heart of the administration of justice . without any problems.
There is therefore no basis or rationale for the arrogant and elitist demand by some that one Honourable Chief Justice and Mr. Justice Kangaloo return their instruments. As the Chief Justice and most senior judge in the Court of Appeal they have made sterling contributions to the development of the law and their appointments are justified.
CONSTANT EVOLUTION
Prime Minister Persad-Bissessar made it quite clear that this administration intends to break with tradition. An excessive preoccupation with outmoded tradition can lead to sterility and prove to be an impediment to progress .We must take our lessons from tradition and move on.
The offices of Chief Justice and Judge also fall into this category. The appointment of silk is an honour befitting the office in light of the contribution of the office holder to the law. In England, the Crown also confers titles and honours on judges. These persons perform at the heart of the administration of justice . without any problems.
There is therefore no basis or rationale for the arrogant and elitist demand by some that one Honourable Chief Justice and Mr. Justice Kangaloo return their instruments. As the Chief Justice and most senior judge in the Court of Appeal they have made sterling contributions to the development of the law and their appointments are justified.
CONSTANT EVOLUTION
Prime Minister Persad-Bissessar made it quite clear that this administration intends to break with tradition. An excessive preoccupation with outmoded tradition can lead to sterility and prove to be an impediment to progress .We must take our lessons from tradition and move on.
If independence and sovereignty are to mean anything we must be allowed to craft and shape our inherited institutions to our current needs and aspirations and not be mired by the supplanted traditions of our colonial past.
We cannot, on the one hand, call for the abolition of the Privy Council and its replacement with the CCJ but cling to archaic English traditions and customs that are of no relevance to our society and legal profession. The English themselves recognised the system is in a state of evolution and have adapted to suit their requirements .
Mr De La Bastide, for example, seemed quite happy to break with tradition when he took an oath of allegiance to the Queen when he was sworn in as a judge member of the Privy Council despite objections from many in light of our Republican constitutional status.
He brushed aside concerns about the obvious conflict of interest in his nomination for the Presidency of the CCJ and said “It is really an honorary appointment and a member will sit when it is convenient to him or when it concerns the jurisdiction from where he comes.”
There are many non-Advocate Attorneys who contribute significantly to the legal profession and the development of the law. High office holders in the Public Service and the Judiciary are some. Legal academics. Legal aid lawyers and in-house Attorneys who have distinguished themselves by their scholarship and record of commitment and service should also be considered. Attorneys who represent the poor and downtrodden and do pro-bono work should also be considered.
There are many non-Advocate Attorneys who contribute significantly to the legal profession and the development of the law. High office holders in the Public Service and the Judiciary are some. Legal academics. Legal aid lawyers and in-house Attorneys who have distinguished themselves by their scholarship and record of commitment and service should also be considered. Attorneys who represent the poor and downtrodden and do pro-bono work should also be considered.
The present spate of objections therefore seems to be the result of a case of convenient political amnesia.
The Government remains proud of and congratulates all recipients of silk.
Perhaps the time has come for society to ask these SCs who are practising at the Bar to “give back” to the community and the Law Association should be encouraged to suggest mechanisms and programmes as to how this could be done
Most of them seem allergic to representing the poor and doing pro-bono work like PM Bissessar and AG Ramlogan. Perhaps the time has come for us to insist that a mandatory one-third of a silk’s practice be devoted to pro-bono work.
If this is done, people like Mr. Daly may not be prepared to sacrifice lucrative clients such as Andre Monteil and the banks to retain their status as silks.
The law, and society, is in a constant state of evolution. The appointment of silk cannot remain shackled to our colonial past. To cease to change is to cease to grow. Isn’t it time we grew up and stop being so petty?
The law, and society, is in a constant state of evolution. The appointment of silk cannot remain shackled to our colonial past. To cease to change is to cease to grow. Isn’t it time we grew up and stop being so petty?
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