Guyana’s High Court has ruled that the President has the power to appoint Senior Counsel.
Justice Nareshwar Harnanan in a detailed ruling on the matter of Timothy Jonas vs the Attorney General et al declared that the Executive President retains the prerogative of the sovereign to elevate members of the local bar to the dignity of senior counsel.
Jonas had challenged last year’s appointment by former President David Granger of four senior counsel. The main argument he advanced was that the appointments made by Granger interferes with the jurisdiction of the Judiciary.
In his affidavit filed in support of the application, Jonas maintained that 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 contended 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.”
Justice Harnanan in his ruling stated that Jonas failed to prove his case.
“This Court is of the view that there is no nexus between the appointment of Senior Counsel by the President as he/she is empowered to do on their prerogative and the contention that the independence of the judiciary is somehow compromised by such an appointment or further than it is somehow an intrusion into the remit of the judiciary by the executive,” he proclaimed.
Specifically the judge explained that the appointment does not direct any judicial officer how they must treat the appointee before the Court; privileges afforded SC are in fact courtesies of a civilized society and a profession steeped in tradition rather than a legal right.
Justice Harnanan additionally pronounced that Jonas had not demonstrated to the Court that the President by exercising his prerogative to appoint SC prevented the judiciary from exercising their functions independently, subjected the Court to political or executive control, interfered with the Court’s administrative autonomy or prevented the Court’s funding from being a direct charge on the Consolidated Fund.
He consequently refused the Order sought by Jonas to quash as wholly void and ultra vires, what he termed the purported appointments made by Granger.
“This Court does not find the complaints made by the applicant to be meritorious. The President at this juncture is the repository of the prerogative power to appoint deserving attorneys at law to the dignity of senior counsel. There are no issues of unconstitutionality in the appointment process as it currently exists. The orders prayed for are therefore refused,” the Judge declared.
Justice Harnanan however called for there to be increased transparency of the criteria in the nomination and selection process. “It cannot go unobserved that the manner of appointment is somewhat vague. This may lend itself to the perception that persons underserving of this esteemed honour may benefit because of some patronage or other,” he explained while welcoming a submission by Attorney General Anil Nandlall that a review of the manner of appointments is near.
The ruling upheld submissions made by Nandlall in defence as he had contended that the President, as the Supreme Executive Authority of Guyana, is vested with the exclusive prerogative to confer Silk upon attorneys-at-law.
Nandlall maintained 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. “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,” the AG’s submissions explained.
He noted 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.
