DEREK ACHONG
Senior Reporter
derek.achong@guardian.co.tt
Outspoken Senior Counsel Israel Khan has threatened to seek an injunction if Attorney General Reginald Armour, SC, does not agree to stop the ongoing application process for the appointment of senior counsel.
Khan made the legal threat in a press release issued Tuesday, which was sent a day after Armour invited applications through a gazetted notice.
“Honourable AG and with the greatest respect to you, if you do not issue a public statement of withdrawing your invitation to the lawyers within seven days of this prudent call to you, I shall instruct my attorneys to apply to the court to stop your vulgar and disrespectful invitation,” Khan said.
“It is not only wrong, it is crass,” Khan added.
In March, last year, Khan, who also serves as Criminal Bar Association (CBA) president, filed an interpretation lawsuit challenging the selection process that has been used since 1964.
Khan suggested that it would be wrong to seek to make appointments using the established practice under challenge as submissions are expected to be presented in his case before Justice Devindra Rampersad, next month.
He said: “The court will soon decide whether the present modus operandi at awarding silk to lawyers is unconstitutional and thus illegal under the doctrine of the Separation of Powers.”
“It is vulgar and disrespectful to the legal profession and the Judiciary for the Prime Minister at this point in time, to command the President to grant silk to lawyers selected by him,” Khan added.
Under the current selection process, the Attorney General invites applications from members of the legal profession before consulting with the Chief Justice and other stakeholders.
The Attorney General then confers with the Prime Minister, who advises the President on who to appoint.
In the notice published on Monday, Armour advised that the appointments would be in accordance with the 60-year-old legal notice. The deadline for applications is midnight on May 20.
Applicants must have professional eminence and distinction, which establishes them as leaders of the profession; sound intellectual ability; thorough, comprehensive and up-to-date knowledge of the law and practice in the fields in which they practise; and outstanding ability as an advocate in the higher courts.
Prospective candidates are also required to have the highest professional standing having gained the respect of the bench and profession in observing the advocate’s duty to the court and the administration of justice while presenting their clients’ case and being formidable, fair, and honourable as an opponent.
In the lawsuit, Khan is contending that the President should make the appointments at her own discretion or based on the advice of any individual or authority other than the Cabinet and the Chief Justice.
He suggested that the 1964 legal notice is not valid law and should not be insulated from challenge based on the constitutional savings clause, which precludes legislation, which was passed before the country gained independence and attained republican status from review even if they (the legislation) infringes on constitutional rights.
Khan referred to a 2005 report from a committee appointed by the Law Reform Commission (LRC), which suggested that the appointments should be made by the President based on advice from an independent panel.
He also noted that in 2015, the Law Association, under Armour’s tenure as president, passed a resolution making a similar recommendation as the LRC committee.
Khan also pointed out that the view was shared by former chief justice Michael de la Bastide and prominent attorney Karl Hudson-Phillips, QC, who served as AG and the association’s president.
After Khan filed his case, the association successfully applied to intervene as an interested party.
In its application, the association claimed that for several years it has been publicly and privately engaging stakeholders on the issue which would directly affect its members.
Describing the case as novel, the association pointed out that it raised important issues in public law, for which it could provide a unique and useful contribution to the court hearing the case.
Two months after the case was filed, President Christine Kangaloo conferred “silk” on 17 attorneys including her husband Kerwyn Garcia and her brother Colin Kangaloo.
At the time, Kangaloo sought to remind citizens that her office does not select the attorneys to be appointed.
She said, “At the end of the process, the President—whoever he or she may be—acts in accordance with Section 80(1) of the Constitution, and, on an occasion like today, formally confers Senior Counsel status to those upon whom he or she has been advised to do so.”
The last time the honour was conferred on attorneys before then was in 2018 when three senior attorneys were appointed.
Khan is being represented by Ravi Heffes-Doon, Daniel Khan, and Vincent Petterson, while Russell Martineau, SC, is leading the legal team for the AG’s Office.
The association is being represented by Rajiv Persad, SC, Ronnie Bissessar, SC, Nabilah Khan, Jonathan Khan, Vishala Khadoo, and Kavita Roop Boodoo.