The High Court will on December 17, 2020 issue a ruling on the the application filed by attorney Timothy Jonas who is challenging last year’s appointment by former President David Granger of four senior counsel.
Following oral arguments during a virtual hearing yesterday, Justice Nareshwar Harnanan told the Court that he would issue his ruling on Thursday December 17 at 3 pm.
Jonas is arguing that the President’s appointment of attorneys-at-law Jamela Ali, Roysdale Forde, Mursalene Bacchus and Stanley Moore is “entirely void and of no effect” since the president has no authority to appoint senior counsel, also known as conferring silk.
Against this background, Jonas is seeking from the court, an Order of Certiorari directed to the Attorney General (AG), quashing as wholly void and ultra vires, what he terms the purported appointments made by Granger.
The main argument advanced is that the appointments made by Granger interferes with the jurisdiction of the Judiciary.
In his affidavit filed in support of the application Jonas maintains the power and discretion to admit persons to practice at the Bar, to preside over such persons, to discipline, suspend and disbar such persons is conferred by the provisions of the Legal Practitioners Act and common law on the High Court, the Supreme Court of Judicature of Guyana.
The Full Bench of the High Court, he argued in his original submission, has from time to time in the exercise of an inherent jurisdiction, exercised a discretion to confer on attorneys who have practiced with distinction, the dignity of Senior Counsel.
He therefore contends that insofar as the President—a member of the executive, purports to make a decision within the province of the inherent discretion of the High Court, his trespass into the realm of the judiciary violates Article 122 of the Constitution, and is “illegal and void.”
That article states “All courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any other person or authority; and shall be free and independent from political, executive and any other form of direction and control.”
Attorney General Anil Nandlall, the first named respondent, has however proffered the argument that the President, as the Supreme Executive Authority of Guyana, is vested with the exclusive prerogative to confer Silk upon attorneys-at-law.
Nandlall maintains that the prerogative or power to confer Silk was never vested in the judiciary of Guyana therefore the President’s prerogative to confer Silk does not infringe on judicial independence, nor is it unconstitutional in any other way.
In the absence of case law on the matter the AG has grounded his argument in legal precedence and presented and the history of the authority.
“The prerogative to confer Silk, is, as dictated by the Republic Act, common law, and convention, vested in the President of Guyana, who is the Supreme Executive Authority of the Republic of Guyana,” a 78- page affidavit argues.
Nandlall notes that before independence the appointment of SC was made by letters patent issued by the Governor on instructions from the Queen.
“Since Independence the practice has settled down for appointments to be made by the Governor General (now the President) on the advice of the Chancellor tendered by the Attorney General as the appropriate Minister,” he stated.
Nandlall stressed that by asking the court to quash appointments made in 2019 on the basis that the President does not have the power and or authority to confer the dignity of Silk, Jonas is arguing that none of Guyana’s Presidents, more so those post the 1980 Constitution, had powers to confer Silk.
“The Applicant, in his submissions, claims that the court has an inherent jurisdiction to confer Silk. This is emphatically denied, and the Applicant has not provided evidence of this…the power and function of conferring the dignity of Silk, at its genesis, resided with the Monarch…this power never resided with the court, regardless of whatever role the judiciary came to play in the process…the recorded tradition of the conferral by the Sovereign in England of the dignity of Silk upon deserving practitioners fails to disclose even a single case where the court was vested with the authority to exercise the prerogative to confer Silk,” the AG stated.
While he acknowledged that post-independence, some jurisdictions changed their laws to either do away with a superior rank or modified the system by which they are appointed, Nandlall is adamant that in Guyana the only change effected post-independence was the change in name from Queen’s or King’s Counsel to Senior Counsel.
“There was no change in the repository of the prerogative power, or the role played by the Court. The veracity of the latter point in particular is made manifest by perusing the laws which ushered the prerogative to confer Silk into the legal system of Guyana…the common law of England, which included the prerogative of the Monarch to confer Silk became the common law of Guyana since 1917 by virtue of the Civil Law of Guyana Act. The Republic Act then captured the, inter alia, prerogatives of the Queen, and vested same in the President of Guyana in 1970,” it was concluded.
