DEREK ACHONG
Senior Reporter
derek.achong@guardian.co.tt
Prominent attorney Israel Khan, SC, will have to wait a little over two months to learn the fate of his lawsuit questioning the appointment procedure for senior counsel.
High Court Judge Devindra Rampersad reserved his judgment in Khan’s interpretation lawsuit to November 29, after hearing submissions during a virtual hearing yesterday.
Justice Rampersad said that he was able to rule on the case immediately but postponed his decision so that it could be presented in a written judgment.
“I have my thoughts already but I have to sit down and write it,” he said.
In the lawsuit, Khan is contending that the appointments based on a legal notice published in 1964 are unconstitutional.
Under the notice, the then-governor general and now-President make the appointments based on recommendations given by the Attorney General on the Cabinet’s behalf.
Presenting submissions on Khan’s behalf, attorney Ravi Heffes-Doon noted that before T&T gained independence, the appointments were made by the British monarch based on their royal prerogative.
While he accepted that the prerogative was subsequently transferred to the President, Heffes-Doon challenged the role of the Cabinet.
“It conflicts with the independence of the Judiciary, fundamental human rights, due process and independence of the legal fraternity,” Heffes-Doon said.
Noting that his client is concerned about political interference in the legal profession, Heffes-Doon said, “Challenges to the executive from the profession would be unimpeded if they (lawyers) are not subject to the executive for promotion.
“The point is that attorneys-at-law are not superheroes. We are human beings that are subject to normal pressures and inducements of the process of promotions.”
He suggested that appointments instead be made on the advice of the Judiciary.
“The independence of the legal profession is critical to the administration of justice,” he said.
In response, Senior Counsel Russell Martineau, who led the Attorney General’s legal team, noted that the policy had been utilised for almost 60 years, including earlier this year.
He suggested that it would be inappropriate for judges to have a more prominent role besides the Chief Justice being consulted by the Attorney General on prospective candidates.
“The judges would expose themselves to criticism,” he said.
Martineau compared the appointments to national awards such as the Order of T&T and the Hummingbird Medal.
“It is no more than a status or honour like the Chaconia Medal,” he said.
Justice Rampersad questioned the position, as he noted that senior counsel are given preferential treatment in courtrooms in terms of sitting in the front and having their cases prioritised.
He also pointed out that they are awarded higher legal fees than other members of the profession.
“There are consequences to appointments because then what is the point?” Justice Rampersad said.
Martineau claimed that such “courtesies” were not conferred by legislation but rather by the Judiciary.
“This case is about appointments and not the consequences of such,” Martineau said.
“Those are the consequences that the Judiciary and profession decided to give to persons of this status. The judges can change it,” he added.
Senior Counsel Ramesh Lawrence Maharaj, who led the legal team for the Law Association of T&T (LATT), admitted that his client has repeatedly called for reform of the current procedure, which he claimed is currently lawful.
“There is really no basis to contend this takes away the independence of judges or lawyers and is in breach of the Constitution,” he said.
He noted that under Section 80 of the Constitution, the President is required to act on the advice of the Cabinet, unless alternative consultation is advised in other legislation.
He pointed out that only Parliament could impose a different procedure.
“The court is not involved in reforming the law, it is involved in developing the law within boundaries,” he said.
However, Maharaj called upon Justice Rampersad to rule that the LATT has a legitimate expectation that it would be consulted before appointments are made, as such a process was used in the past.
Khan was also represented by Daniel Khan and Vincent Patterson.
Kerwyn Garcia, SC, Zara Smith and Ronelle Hinds appeared alongside Martineau for the State.
Michael Rooplal, Saira Lakhan, Nabilah Khan and Jonathan Khan appeared alongside Maharaj for the LATT.