THE High Court has rejected a constitutional challenge to the procedure for appointing senior counsel, also known as "silk," brought by attorney Israel Khan, SC.
The ruling, delivered by Justice Devindra Rampersad on November 29, upheld the current process, which involves the Prime Minister's advising the President on appointments.
Khan argued the procedure violated the separation of powers by allowing political influence over a decision critical to the independence of the legal profession.
However, the court found no constitutional breach in the longstanding practice.
“Nothing is unlawful in the current procedure,” Rampersad said.
“Ultimately, the court has to decide, after hearing all of the evidence and the submissions, whether the President can act of her own volition by reason of the unconstitutionality of the provisions in question.
“The short answer, in this court’s respectful view, without having to recite the numerous authorities relied upon by the parties, is that the claimant has failed to show that, as it is currently couched, the provision is unconstitutional or is unlawful.
“That conclusion is based on what has been said in the previous sections. It therefore follows that since there is no provision in the Constitution or any other law that allows the President to exercise her own discretion, the general rule applies that she shall act upon the advice of Cabinet.
“That is especially so since there is nothing which empowers her to exercise her own discretion otherwise and the provision has not been shown to be unconstitutional in these circumstances.”
He also noted that the appointment still operated under the 1964 Gazette conditions, which required the Attorney General to consult with the Chief Justice and “such other persons or bodies as he considered necessary.”
“In the past, the Attorney General has sought consultation with the LATT even as late as 2023.
“It is clear that the current process is not unlawful. It is also clear that there is public clamour and considerable effort exerted by the claimant himself, through his own private writing, and by the LATT and several other luminaries and thinkers and leaders, that the current system is inappropriate and has to be changed.
“No doubt, such a position makes eminent good sense."But, he said, the court has found nothing unlawful with the current process, which was its remit.
He declared the requirement under 80(1) of the Constitution for the President to act on the advice of the Cabinet or Prime Minister for the appointment of senior counsel was valid.
He also declared the gazetted procedure was also valid.
In an afterword, Rampersad said based on the concerns raised over the last two decades by previous chief justices, attorneys general and senior attorneys, including LATT, “It is this court’s respectful and hopeful wish that care and consideration will be given to the extensive work done since 2005 to now – almost 20 years – to try to change the process and make it more palatable and more transparent.”
He said the c
