Sto­ries by DEREK ACHONG

Se­nior Re­porter

derek.achong@guardian.co.tt

The cur­rent ap­point­ment pro­ce­dure for Se­nior Coun­sel is not un­law­ful or un­con­sti­tu­tion­al. 

High Court Judge Devin­dra Ram­per­sad gave the rul­ing yes­ter­day as he re­ject­ed a nov­el law­suit brought by promi­nent at­tor­ney Is­rael Khan, SC. 

Khan has al­ready in­di­cat­ed his in­ten­tion to ap­peal the rul­ing.

In the law­suit, Khan con­tend­ed that the ap­point­ments based on a le­gal no­tice pub­lished in 1964, in­clud­ing his own, breached the Con­sti­tu­tion. 

Un­der the no­tice, the Pres­i­dent makes the ap­point­ments based on rec­om­men­da­tions from the At­tor­ney Gen­er­al on the Cab­i­net’s be­half af­ter con­sul­ta­tions with stake­hold­ers such as the Chief Jus­tice and Law As­so­ci­a­tion. 

Jus­tice Ram­per­sad not­ed that un­der the Con­sti­tu­tion, the Pres­i­dent can­not act in­de­pen­dent­ly of Cab­i­net’s rec­om­men­da­tions in mak­ing the ap­point­ments.  

“It is ob­vi­ous to this court that a plain read­ing of sec­tion 80(1) does not per­mit the Pres­i­dent to act on her own vo­li­tion in the sit­u­a­tion at hand,” he said. 

Jus­tice Ram­per­sad al­so re­ject­ed claims that the pro­ce­dure breached the doc­trine of the sep­a­ra­tion of pow­ers, which pre­vents arms of the State from in­ter­fer­ing with each oth­er’s pow­ers. 

Deal­ing with Khan’s claims that the Cab­i­net was ef­fec­tive­ly di­rect­ing the court on which lawyers should be af­ford­ed high­er le­gal fees based on the des­ig­na­tion, Jus­tice Ram­per­sad not­ed that judges still re­tain dis­cre­tion when de­cid­ing on le­gal costs to be paid at the end of a case. 

Jus­tice Ram­per­sad al­so not­ed that while Se­nior Coun­sel are ac­com­mo­dat­ed in the front row of the court, their sub­mis­sions are not up­lift­ed to the detri­ment of ju­nior at­tor­neys. 

“The court is wary of the con­cern in re­la­tion to ap­point­ments em­a­nat­ing from de­ci­sions of the Cab­i­net of T&T but is of the re­spect­ful view that those choic­es, though treat­ed with the nec­es­sary cour­te­sies, re­spect and def­er­ence, does not im­pact on a judge’s abil­i­ty to fo­cus on the is­sues in a mat­ter with­out any par­tic­u­lar pref­er­ence in re­la­tion to the pre­sen­ter on ei­ther side,” he added. 

While Jus­tice Ram­per­sad not­ed that the as­so­ci­a­tion had been con­sult­ed in every sin­gle ap­point­ment process since 2003, he de­clined to rule that it had a le­git­i­mate ex­pec­ta­tion that it would have an in­put as such was not di­rect­ly sought as a re­lief in the case. 

De­spite his rul­ing on the le­gal­i­ty of the cur­rent process, Jus­tice Ram­per­sad still ad­vo­cat­ed for Par­lia­ment to con­sid­er re­forms rec­om­mend­ed by sev­er­al com­mit­tees and the as­so­ci­a­tion over the past two decades as he not­ed the po­lar­is­ing ef­fect on the le­gal pro­fes­sion where­by de­serv­ing can­di­dates are stained by al­le­ga­tions of po­lit­i­cal pa­tron­age. 

“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. 

How­ev­er, he ac­cept­ed that such a rec­om­men­da­tion may not bear fruit.

“Clear­ly, de­spite all of the con­cerns and all of the out­cry men­tioned and to be men­tioned in the next sec­tion, the is­sue is sim­ply not up for dis­cus­sion. As sim­ple as that. As frus­trat­ing as that, it seems,” he said. 

He al­so com­mend­ed Khan for de­cid­ing to file the case on be­half of ag­griev­ed mem­bers of the pro­fes­sion with­out hav­ing any­thing to gain.

“The court com­mends the claimant for his un­wa­ver­ing com­mit­ment to his oath and his role as a se­nior at­tor­ney-at-law in the Re­pub­lic of T&T in all sense and to his deep sense of re­spon­si­bil­i­ty and his de­sire in try­ing to cul­ti­vate and main­tain a le­gal pro­fes­sion which is fierce­ly in­de­pen­dent in the true tra­di­tions of coun­sel,” he said. 

“Too many are un­able or un­will­ing to walk the walk he has tak­en,” he added. 

De­spite the out­come of the case, Jus­tice Ram­per­sad or­dered the par­ties to cov­er their own le­gal costs. 

In an in­ter­view at his cham­bers Justi­tia Om­nibus, af­ter the rul­ing, Khan said he was dis­ap­point­ed by the “con­ser­v­a­tive” judg­ment. 

“The tri­al judge took the line of least re­sis­tance,” he said.

Khan al­so vowed to take the case through the ju­di­cial sys­tem. 

“This is a mat­ter of such im­por­tance for the le­gal pro­fes­sion that we would take the mat­ter to the Court of Ap­peal to re­view his de­ci­sion. I fore­see this mat­ter go­ing all the way to the Privy Coun­cil for fi­nal de­ter­mi­na­tion,” Khan said.