PROMINENT and outspoken attorney Israel Khan, SC, says the President, in appointing senior counsel, or “silk,” should not do so on the advice of the Cabinet, a minister or the prime minister.
Instead, he says the President should make such appointments in her own discretion or on the advice of anyone, or authority, other than the Cabinet, including the chief justice.
His contentions are set out in a civil claim for interpretation by the High Court. In it, Khan wants the court to pronounce on the correct procedure for the appointment of silk.
The application, filed by his attorneys Ravi Heffes-Doon, Daniel Khan and Vincent Patterson, says Khan is not seeking an advisory opinion on a hypothetical matter, as it was one which was of real practical significance.
The claim also seeks declarations that it is unlawful for the President to act on the advice of the Cabinet and that she is required to act on her own discretion or on the advice of anyone, or authority, including the chief justice but not the Cabinet.
It says any finding or declaration of the court will not apply to those senior counsel appointed before the claim was filed.
The interpretation claim says if the President is required to act in accordance with a legal notice gazetted in 1964, which provides for an appointment after advice is received from the prime minister, then it would be inconsistent with the Constitution and ultra vires her powers.
Senior counsel is a rank in the legal profession and recognises the status of an attorney which is recognised in common law and the Constitution. Those appointed senior-counsel status are also afforded precedence over other attorneys in the courts.
The claim questions if it was proper for the Cabinet to choose which attorney should get the honour of silk.
It referred to the position of the Attorney General, in pre-action correspondence, who maintained that senior counsel should be appointed by the President on the advice of the prime minister.
The 1964 legal notice set out the procedure for the appointment of what was then queen’s counsel, since TT had not yet become a republic. The 1964 notice said appointments were to be made by the governor general on the advice of the prime minister. When an application was received, the attorney general is then required to consult the chief justice, or “such other persons or bodies” he considers necessary, but is under no obligation to do so.
After such consultation, the AG is required to submit his recommendation to the prime minister, who will advise the President.
It was the AG’s position that the 1964 notice was saved law, not amenable to challenge, and he was bound by it.
Khan, however, says the notice did not purport to be a law, nor could it be saved law. Regardless, his claim says the 1964 notice was irrelevant.
It also said the independence of the bar was inimical to the rule of law and regulation of the profession, by Cabinet, to select silk was inconsistent with the Constitution and the powers it gives the President.
The claim pointed
