THE debate over the appointment of a select stratum of legal luminaries, known as senior counsel, or “silk,”’ has reached the court.
Prominent and outspoken attorney Israel Khan, SC, has asked the High Court to declare the current procedure for appointing silk unconstitutional, as he claims it breaches the separation of powers because the Prime Minister is involved in the selection process.
On September 10, Justice Devindra Rampersad heard oral arguments in Khan’s interpretation claim, filed in 2023, which calls on him to identify the correct procedure for the appointment of silk.
Rampersad will give his decision on November 29.
Khan’s position, advanced by his attorneys Ravi Heffes-Doon, Daniel Khan and Vincent Patterson, is that the President, in appointing senior counsel, 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 at her discretion or on the advice of anyone, or authority, other than the cabinet, including the chief justice. The exercise of the presidential power should not be on the advice of the cabinet or prime minister, his claim asserts.
In submissions, Heffes-Doon said the appointment was not a mere honorary title, but a promotion and elevation to a higher rank and the independence of the legal profession was crucial for the administration of justice. This, he said, was the will of the Parliament.
Heffes-Doon said the power to appoint senior counsel was not contained in the Constitution but in the Constitution Act.
“There is nothing in the Constitution to appoint senior counsel.”
The appointment was a prerogative power limited by statute, he said.
Heffes-Doon said the legal profession had a duty to guard its independence scrupulously and painstakingly.
He admitted Khan was concerned about political inference in the bar and that the selection and the appointment of its leaders were important.
“It is not honourific. This isn’t like getting a Hummingbird Medal (a national award). It is a quintessential role.”
The Executive, he said, should not have this power.
“The bar is regulated by the Parliament, disciplinary committee and judges. The bar needs to be regulated in the public interest.”
He admitted it would be “odd” if the President exercised a common-law power.
Heffes-Doon said the grant of the right of audience and the relationship between the bench and the bar by the Executive was a trespass.
“Attorneys at law are not superheroes. We are human beings who are subject to normal pressures and inducements in the process of promotions.
“Challenges from the profession would be unimpeded if they (lawyers) are not subject to the Executive for promotion. It is inimical to the rule of law and the process of the law. The independence of the legal profession is critical to the administration of justice.”
He said the separation of powers must be preserved.
As he referred to letters from former presidents of the Law Association (LATT) – which is an interested party in the case –
