As the country celebrates the 48th anniversary of independence and reflects on achievements and disappointments, some may also cogitate on the essence of this freedom to preside over our destiny and the rudiments of the state that keep it on an even keel and prevent usurpation and abuse of powers.
The separation of powers is the fundamental underpinning of our being even if never in perfect alignment and appropriately accoutred. With the first ever hung parliament in the history of our independence in 2011, the Executive and the Legislature have clashed repeatedly and dramatically and it is clear that reforms of the constitution will have to be considered to ensure that unnecessary and crippling paralysis isn’t allowed to take root in the making and implementation of laws.
While not as deeply involved, the judiciary has also become embroiled in the clashes between the other two branches of government most noticeably in relation to the budget case and the powers of the legislature to assert itself on matters such as the muzzling of the Home Affairs Minister. In many ways the judiciary has become an important arbiter in the present dispensation and must exercise this function in a manner that redounds to its role as an impartial balancer. Aside from the fact that the top two judges in the judiciary have been acting for years and this inherently weakens them and the judiciary in many ways, there have also been questions in connected areas noticeably pertaining to the functioning of the Judicial Service Commission (JSC) and its questionable appointment of now resigned Justice of Appeal Rabi Sukul. The Chairman of the JSC who is also the Chancellor of the Judiciary has not provided a detailed explanation on how it was that Mr Sukul came to be appointed all the way from the England and Wales Bar when it should have been known that he had encountered serious legal trouble and which eventually led to his disbarring in the isles.
The judiciary, specifically in this case, the Office of the Chancellor has now embarked on another task, the appointment of Senior Counsel, which while it may seem perfunctory has implications for the exercising of its powers and the studious guarding of its jurisdiction.
Conferring of silk has in the past raised the usual questions of merit and whether an honours system in the Bar is even necessary. It is no different this time around. Republicanism has also floated the question of whether the vestiges of the colonial past should just simply be heaved off and for those at the Bar to distinguish themselves solely on the grounds of performance and the satisfaction of their clientele. Attorney Christopher Ram on his blog has also listed compelling reasons why the preferment should be the least of the considerations of the judiciary at this point given the state of the criminal justice system and the ethical challenges that members of the Bar face.
Aside from these and in keeping with the theme of the judiciary doing its utmost to ensure it protects its independence from encroachment from both the executive and legislature and does this in a transparent manner, there are other issues which should be addressed in relation to the Senior Counsel quest.
First and foremost is the manner in which Senior Counsel are appointed. As has already been pointed out by many, it has been eighteen years since the last batch of attorneys were conferred with silk, and there were the usual accusations of politically inspired elevations and attempts at balancing by the making of other appointments. From a layman’s perspective, and just as valid as any other, what the Chancellor’s office should explain is what triggers the process for these elevations? Who or what ordains that there should be an 18-year hiatus in such conferrals? Who or what then determines that this system should be cranked up anew?
When one considers how many eligible persons might have been bypassed over the interregnum it is not acceptable that the process can just simply be initiated without being located in a non-discriminatory framework. Cynics will undoubtedly say that the resumption of the process at this juncture will enable the current leader of the Bar, Attorney General, Anil Nandlall to be considered for such preferment. There would be significance to any such preferment as Mr Nandlall is the first Attorney General since independence not to have entered office with the status of Senior Counsel. With nearly three years of this unstable and conflict-ridden administration approaching and the possibility of an early general election it would appear that this would be the most propitious time for the Attorney General to have his case considered. Other candidates for Senior Counsel may then be considered as having been lifted by this headwind. And what about the future? Would it be another 18 years before elevations come up again for consideration? Is there and should there be a process for stripping Senior Counsel of their status? These are the areas that the Chancellor’s office should apprehend as presenting valid public concerns and which at the same time refract interesting insights into the interplay of the various branches of government.
There is another valid area of concern for the public: the manner in which selections will be made and who will be making them. Presumably the standing of the applicants with both their professional organization and their clients should be a pivotal factor. Disgruntled clients might be completely unaware of the intended preferment and may have no chance to lodge an objection. Given the advertisement inviting applications for Senior Counsel, the Chancellor’s office should follow this up by publishing a list of those who have signalled their interest in being elevated and provide the opportunity for any former client to provide either a testimonial or an objection. At the same time, it should also be made clear who will make the final selections.
How the Bar Association might approach the question of the conferring of silk would also be of interest. The matter of crass political interference in this process as inimitably presented by former President Jagdeo when he railed against a presumptive prospect for silk also raises the matter of external influences in this theatre.
Now that the process has been embarked upon there will be enormous interest in how it turns out. The judiciary also has an inviting opportunity to guard its independence determinedly while at the same time enabling the transparency in the public life that this country and its people cry out for daily.
