Is­rael Khan SC says he in­tends to re­sume his bat­tle to re­form the process of award­ing “silk” to de­serv­ing at­tor­neys in the Ap­peal Court next year

Khan was de­feat­ed by Gov­ern­ment in the High Court last month, dur­ing a nov­el con­sti­tu­tion­al case in which he chal­lenged the cur­rent process which al­lows the Prime Min­is­ter to se­lect the lawyers for “silk.”

How­ev­er, he says he will con­tin­ue his fight be­cause he main­tain the cur­rent process is flawed.

“I main­tain that the cur­rent process is il­le­gal and I in­tend to fight this next in the Ap­peal Court and I’m pre­pared to take this all the way to the Privy Coun­cil if needs be,” Khan said.

Not­ing that he had been re­ceiv­ing a lot of sup­port from the pub­lic since the rul­ing, some of whom ad­mit­ted to be­ing sur­prised by the judg­ment, he said. “It is clear that the pub­lic wants re­form of the process so that the pow­er to award silk does not re­main in the hands of politi­cians but in­de­pen­dent bod­ies prefer­ably with the where­with­al to as­sess at­tor­neys for silk in a fair and just man­ner.”

In a 54-page judg­ment de­liv­ered on No­vem­ber 29, Jus­tice Devin­dra Ram­per­sad re­ject­ed Khan’s case, rul­ing the cur­rent process which per­mits the Prime Min­is­ter to se­lect at­tor­neys for “silk” sta­tus is con­sti­tu­tion­al­ly law­ful and valid.

Khan, the Crim­i­nal Bar As­so­ci­a­tion pres­i­dent, had con­tend­ed that ap­point­ments based on a le­gal no­tice pub­lished in 1964 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.

Khan had ar­gued that bod­ies such as the Ju­di­cial and Le­gal Ser­vice Com­mis­sion (JLSC) and Law As­so­ci­a­tion of T&T (LATT) were bet­ter suit­ed to make rec­om­men­da­tions to the Pres­i­dent.

De­spite his rul­ing, Jus­tice Ram­per­sad not­ed dur­ing his sum­ma­tion that the is­sue con­tin­ues to raise con­tention in the pub­lic do­main.

“The court is wary of the con­cern in re­la­tion to ap­point­ments em­a­nat­ing from the de­ci­sions of the Cab­i­net of T&T… At the end of the day, this is re­gret­table, since it con­tin­ues to leave a sour taste for the pub­lic, and in par­tic­u­lar for the le­gal pro­fes­sion. It al­so leaves a stain on ap­pointees who, de­spite their mer­it, may be coloured by the broad brush of per­ceived po­lit­i­cal pa­tron­age…This is­sue is too im­por­tant and too cru­cial to the rule of law in the Re­pub­lic of T&T not to have a rea­son­able so­lu­tion and res­o­lu­tion.”

The judge said it was clear there has been pub­lic clam­our and con­sid­er­able ef­fort for year by Khan, the Law As­so­ci­a­tion and oth­er lu­mi­nar­ies, thinkers and lead­ers, to re­form the process be­cause of the be­lief it is un­fair and in­ap­pro­pri­ate and hoped it would be re­vis­it­ed.

“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. ,” Jus­tice Ram­per­sad said.

Not­ing Khan’s fight to en­sure se­nior coun­sels are ap­point­ed law­ful­ly, fair­ly and trans­par­ent­ly via the law­suit, Jus­tice Ram­per­sad added, “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 Trinidad and To­ba­go 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. Too many are un­able or un­will­ing to walk the walk he has tak­en.”

How­ev­er, Jus­tice Ram­per­sad al­so con­ced­ed that the court recog­nised change de­pend­ed on po­lit­i­cal will in this mat­ter, which did not seem forth­com­ing at present.

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

In de­fend­ing his ar­gu­ment, Khan not­ed that Prime Min­is­ter Dr Kei­th Row­ley, as Op­po­si­tion Leader in 2011, had said the award­ing body for se­nior coun­sel should not be left in the hands of a “self-serv­ing po­lit­i­cal di­rec­torate.”

Row­ley’s com­ments, Khan said, came af­ter Chief Jus­tice Ivor Archie, then-Jus­tice of Ap­peal Wen­dell Kan­ga­loo, then-prime min­is­ter Kam­la Per­sad-Bisses­sar and then-AG Anand Ram­lo­gan were among at­tor­neys award­ed “silk” by the Peo­ple’s Part­ner­ship ad­min­is­tra­tion. Fol­low­ing pub­lic crit­i­cism of the process, how­ev­er, Archie and Kan­ga­loo re­turned their in­stru­ments of ap­point­ment to the Pres­i­dent.