On Wednesday Director of Public Prosecutions (DPP) Shalimar Ali-Hack, Stephen Fraser, Carole James-Boston, Robert Ramcharran and Rajendra Nath Poonai were presented with their instruments of appointment as Senior Counsel by President David Granger. The announcement that they had been accorded this status had been made on January 1 this year.
The question of how Senior Counsel (SC) are selected has arisen before. In this country, as the President pointed out in his address, the Constitution and laws of Guyana do not prescribe how they are to be appointed. The prerogative of preferment here, as he said, is reposed by practice exclusively in the President. He went on to emphasise that the designation was awarded on the basis of merit and was “uncontaminated by arbitrariness or capriciousness.” The five attorneys deserved the distinction, Mr Granger insisted, by virtue of their “erudition, experience and expertise,” and it was not bestowed as “a personal favour or a political reward.”
Furthermore, we reported he went on to tell his audience that the President was the trustee of the traditions which sustained society. He described it therefore as his duty to respect our national honours system; to pay respect to those to whom respect is due; to promote greater respect for our legal system and to ensure that the conferment of Senior Counsel would be made annually. “Failure to confer these awards would constitute a dereliction of these duties,” we quoted him as saying, while he also took the opportunity to recall that for three decades prior to January 2017 the privilege was given only rarely.
No one is suggesting that the five new SC recipients are not entirely deserving of the honour; however, there is a general point to be made. Since, as the President said, it is accorded on the basis of merit, then what is a political figure like a head of state and government doing making decisions about who in the legal fraternity has “erudition, experience and expertise”? Isn’t that something into which at some level those versed in the law should have an input? Of course there are those who might argue that the President will take legal advice, not least from the Attorney-General. In the first place much would depend on the quality of that advice, and in the case of attorneys-general that might well be variable. In the second place, there is nothing to stop a president accepting politically biased recommendations from whichever lawyers he consults.
Since SC is a professional distinction, then its bestowal should not be polluted by any political associations, or, for that matter, by any appearance of political associations. That particularly applies in a highly politicised context like ours. If the honour is not disassociated from a perception of political decision-making, then it will be demeaned and will cease to be regarded as a badge of legal learning.
Of course, like many other Commonwealth countries, we have inherited the tradition (with its nomenclature suitably amended) from England, where it is referred to as Queen’s (or King’s) Counsel, depending which gender is on the throne. The tradition goes back to Francis Bacon in 1597, when he was granted special precedence in the court, although it was not until 1603 that he was formally given the title KC.
QCs are normally instructed for the most serious or complex cases, and while the description carries other advantages, it is also not without certain disadvantages. However, most commentators are agreed that its greatest benefit is the capacity to earn higher fees than is possible for an ordinary attorney. That too, in our situation, makes it tempting for politicians here to want to use the investment of such an award for their own political ends.
President Granger has made it public that he intends to institute annual conferrals of SC status. One wonders whether, given the size of our legal body, this is advisable. If there are too many Senior Counsel, then that will diminish the quality of the privilege and will become a token of nothing in particular. In 1775 maybe around 8.5% of barristers in England were described as KC. In 2008 it has been suggested, that figure is very roughly 10%. In Guyana at present there are probably not a large number of attorneys carrying the SC designation. However, the authorities should not be looking to put themselves in a situation where they have too many, more particularly if they do not meet the necessary criteria of legal learning and experience.
While in England and Wales in recent times the monarch makes the formal appointments, in practice this is done on the advice of the Lord Chancellor, who in turn receives the recommendations of a small committee comprising barristers, solicitors, a retired judge and non-lawyers, chaired by a layperson. Barristers and solicitors desirous of attaining silk will send in their applications, and the panel will then consider confidential assessments about the applicants from judges, fellow advocates and professional clients. Thereafter a number of them will be called in for interview. There is a framework of competencies which the panel applies, viz. understanding and using the law, written and oral advocacy, working with others, diversity and integrity. Applicants are expected to be successful in the various competencies, and should have at least 15 years professional experience.
This is just one example of how the system can be divorced from political contamination, although there are others which Guyana could investigate with a view to reforming present arrangements, and making the honour a truly professional one.
President Granger in his address promised that the conferral of SC “will not lapse under my presidency.” We are going into election season, and at this stage, no one knows whether in the longer term he will be in a position to make good on that promise. What he could do, however, is have the PNC and/or APNU commit to changing the system to make it genuinely professional if they are returned to office.
