Saying that the administration has desecrated the process used to select Senior Counsel (SC), attorney Sanjeev Datadin yesterday expressed concern at the decision to recall the conferral of ‘silk’ on fellow attorney Timothy Jonas following his involvement in the establishment of new political party, A New and United Guyana (ANUG).
“…In the last list there was a very, very alarming thing where Timothy Jonas was apparently afforded the honour… when it was announced that he was involved in the new party…he was promptly informed that as fast as he was robed, he was disrobed,” Datadin told Sunday Stabroek.
Though Datadin did not have all the details, this newspaper subsequently learnt from persons familiar with the issue that sometime in November or early December of last year, Jonas was informed by Chancellor of the Judiciary (ag) Yonette Cummings-Edwards that he received the approval of the judges to be appointed SC and that she would be communicating that to the executive.
On Christmas Eve, Chief of Protocol at the Ministry of the Presidency Vic Persaud contacted Jonas at his home to inform him that upon the judges’ recommendation, he was being appointed SC and that in the coming days he would receive his documentation and invitation to the ceremony.
The following day, this newspaper published a story about the formation of ANUG. Five days later, Persaud informed Jonas that the executive had reconsidered the decision.
A few days later, the Ministry of the Presidency announced five new SC. Jonas’ name was not included. The new SC are Director of Public Prosecutions (DPP) Shalimar Ali-Hack and attorneys Stephen Fraser, Carole James-Boston, Robert Ramcharran and Rajendra Poonai.
They were the third set of SC appointed by President David Granger.
In 2017, Attorney General Basil Williams, Neil Aubrey Boston, Charles Fung-A-Fat, Chief Justice (ag) Roxane George-Wiltshire, Llewelyn John, Rafiq Khan, Vidyanand Persaud, Rosalie Althea Robertson and retired judge Claudette Singh were appointed SC.
In 2018, K Juman Yassin, Fitz Peters, Andrew Pollard and Josephine Whitehead were appointed SC.
‘Belittled’
Datadin told Sunday Stabroek that what has taken place in Jonas’ case has “belittled the honour.”
“…When you hear stories like that, that a man is granted silk and upon him being granted it, him declaring his involvement in a political party, you take it away from him, it is not fair,” he stressed, before adding that he can see “no reason why” Jonas, who has been in practice since 1996, “is undeserving.”
He explained that his colleague has made many appearances in various courts and has years of practice to his name.
Datadin has concluded that the silk honour was recalled because of Jonas’ decision to form a political party.
“He didn’t do anything dastardly to the Bar or to get thrown out of the profession. He has no disciplinary issues brought during that time. It’s a series of facts that we know and when we follow them one by one, it leads to one conclusion. The only notable thing he did was to be[come] involved in a political movement,” he reasoned.
With regards to the process for selecting such persons, Datadin told this newspaper that countries in the Commonwealth have had a slight variation to an established procedure. The established procedure in Guyana, he said, is that the sitting judges of the High Court and the Court of Appeal in Guyana would recommend persons that they think are suitable. “They would basically try to come up with a shortlist and then amongst themselves [they] decide who should receive the honour. It really is a process driven by the Chancellor in Guyana—the head of the Judiciary, she would be the person who would make the determination finally,” he said.
According to Datadin, that list is then conveyed to the president through the AG for him to carry it out. “The president’s function is purely ceremonial… He doesn’t do a selection… He ought not to have a say. The truth is how the mechanism has always worked is that it goes from the Chancellor of the Judiciary ….or whoever is the head judge to the President/ Head of State/ Prime Minister …but it goes through the Attorney General because the understanding is that there should be no direct contact between the Head of the Judiciary and the Head of the Executive,” he said.
He stressed that “it is not for the Attorney General to fiddle with that list either. That is not proper because he is really just the messenger. He delivers and advises the President that he has received this list from the judiciary.”
Datadin pointed out that locally, when Carl Singh was acting Chancellor, he took the unusual step of deciding to adopt a procedure where those who wished to be appointed silk had to apply.
In May 2014, a notice in this newspaper appeared inviting attorneys-at-law desirous of being elevated to Senior Counsel to apply. At the time of the advertisement, observers had been critical of the sudden interest in appointing Senior Counsel after the long gap. There was a list of candidates for preferment, but no one was ever appointed.
Datadin expressed disagreement with that procedure, saying that “that is not a common practice around the Caribbean or the Commonwealth. In my personal mind, it demeans the honour…It should not happen and it should not continue.”
Shocked
Meanwhile, Senior Counsel Rafiq Khan, told Sunday Stabroek that he had applied nearly 15 years ago under the stewardship of then Chancellor Desiree Bernard and was shocked when he was informed that he would be appointed Senior Counsel.
He recalled that at the time the then Chancellor, after consulting with judges, would invite chosen lawyers to apply. He said Justice Bernard informed him that the judges felt that it was time for him to apply for silk.
Khan said that he filled out an application form and submitted it along with two references. That application, based on his explanation, was to be evaluated by a committee comprising the Chief Justice, about two High Court judges (one from the Court of Appeal) and several SC. He said if the committee agreed, the name or names were sent to Bernard and she would submit it to the President.
According to Khan, the President “ought to have appointed those persons as recommended.” However, he said this never happened under the previous government, though there were all kinds of behind-the-door lobbying by various people.
He said that he never heard anything about his application and he never inquired.
Khan recalled that two Christmases ago, “out of the blue,” he received a telephone call from the Chief Protocol Officer informing him that he was going to be conferred with silk and asked if he had any objections to this. According to him, after indicating that he had no objections, Persaud told him to keep the information confidential and that an announcement would subsequently be made. Later, the list containing his name was announced.
“I didn’t know I was nominated up to that point until I heard from Persaud. I had forgotten about it [the application],” he said, before adding that he doesn’t know who is making the decisions now.
“I don’t know if there is any process anymore. The process I knew, Bernard had introduced, and the one before that, I don’t know if it is in place anymore. Because when you speak to some judges, they express as much surprise at an appointment as you would,” he said.
Asked if with his 34 years of experience he was qualified to be appointed silk, Khan said “It is not…for me to say if I am to be appointed. It would be for the judges of the High Court and Court of Appeal before whom I practice… They are the people best suited to tell me. I was invited so I assume they felt I was qualified.”
Interference
Datadin said that what is clear now is that there is political interference in the appointment process.
“For too long in Guyana, we have played politics with it. On the one hand, we had no appointment under the PPP except in the year 1996…The APNU+AFC government, on the other hand, seems to have given everyone who they consider friendly to elevate them…I don’t want to get into a conversation about who is deserving and who is not but if you are to ask people generally, some of those persons have not been reported in a law report anywhere. Not a single case they haven’t practised. It makes you wonder how they came about being conferred silk,” he said.
He stressed that no sitting judge should be awarded silk because “silk is for the honour of a barrister. A man [or woman] who goes to court and a man [or woman] who argues his [or her] business in trials. I don’t understand what justified two people who were judges to receive silk; the acting Chief Justice and Claudette Singh. If you say they did great work in the past and it’s for past things, how can that be?” he said.
He reminded of a similar situation in Trinidad and Tobago, where two judges had to relinquish their silk following an outcry.
President Granger has defended the appointment of the two women.
In the case of Justice George-Wilshire, he said that she had served for several years in the Chambers of the Director of Public Prosecutions and were this “a normal jurisdiction during those years, she would have had the SC long ago.” He called the non-elevation of such a person with her level of qualifications a “travesty.”
He added, “Similarly Justice Claudette Singh did serve as Solicitor General and in normal jurisdictions, these were qualifications that would have enabled them to earn that award.” He stressed that what he had done was to correct an “abnormal” situation.
Justice George-Wiltshire, who was admitted to the Bar in October 1990, has served as a Senior State Counsel, Assistant Director of Public Prosecutions, Deputy Director of Public Prosecutions and Director of Public Prosecutions.
Datadin, during the interview with this newspaper, said that given the current situation with judges, he has been informed that they are now refusing to make recommendations.
In that regard, he asked, “So who is coming up with these lists and how are these lists coming up? And if the Chancellor has put forward a list of recommended people and the others are taking it upon themselves to inject who they want and interject who they want…then how is that going to work?”
Other members of the legal fraternity yesterday also expressed concern that the suggestions made by the judges are not reflected in the final lists. One source pointed out that Stephen Fraser’s name was included in all three lists but he was only conferred with this honour on January 1 this year. “He was overlooked and names that were not on the judges’ list and would never get on the judges list have been preferred. Some of the judges have refused to take part in the process,” the source said, while adding that the criteria for silk should be integrity and the attorney’s workload, including the importance of the cases and their approach to them.
Datadin added that in selecting someone for silk, their work as an attorney and how they can be distinguished from their peers are of utmost importance.
Editor’s note: An earlier version of this story had misreported Mr Khan as saying that with his 34 years of legal experience he is more than qualified to be appointed silk.
