Head of State has power to appoint Senior Counsel – High Court rules

…calls for increased transparency in appointment process

The High Court has ruled that the Executive President of Guyana is vested with traditions that flow from royal prerogatives, statutes and the Common Law to appoint Attorneys-at-Law to the dignity of Senior Counsel, otherwise known as conferring silk.

The ruling was delivered on Thursday by Justice Nareshwar Harnanan, who underscored the need for increased transparency in the process and criteria for the bestowing of silk.
The ruling comes five months after newly-appointed Senior Counsel Timothy Jonas filed an application challenging former President David Granger’s conferral of silk in December 2019, on Attorneys-at-Law Stanley Moore, Roysdale Forde, Jamela Ali, and Murseline Bacchus.
Jonas was seeking an Order of Certiorari to be directed to Attorney General Anil Nandlall quashing as unconstitutional the conferral of silk on the four lawyers. Jonas had argued that the appointments were done in violation of Article 122 of the Constitution as the then President, a member of the Executive, trespassed into the inherent jurisdiction of the High Court of the Supreme Court of Judicature.
He contended that the decision to appoint Senior Counsel lies within the province of the inherent discretion of the High Court of the Supreme Court of Judicature. Justice Harnanan, however, disagreed with the lawyer’s arguments. The Judge dismissed Jonas’s application which he deemed unmeritorious.

Power to appoint
In arriving at his decision, Justice Harnanan placed heavy reliance on the Republic Act, the Civil Law of Guyana Act, and the Common Law.
Providing historical background on the appointment of silk, the Judge explained that the prerogative to appoint Queen’s/King’s Counsel originated with the monarch, and in Guyana’s case, was exercisable by the Governor-General, who was the Queen’s representative in British Guiana.
The Judge explained that the powers of the Queen were exercisable by the Governor-General according to the Guyana Independence Ordinance 1966, whose powers include the prerogative to appoint Senior Counsel.
When Guyana gained Republican status in 1970, the Judge noted that the prerogative powers once exercised by the Queen were transferred to the Executive President of Guyana pursuant to the Republic Act and the Civil Law of Guyana Act.
The Judge pointed out that Section 7 of the Constitution of Guyana outlines that existing law, including the Civil Law of Guyana Act, and the Republic Act shall continue in force on and after the promulgating of the 1980 Constitution of Guyana Act as if they had been made in pursuance of the Constitution.
“The conferral of silk is the exercise of the prerogative power of the sovereign. It is acknowledged that the President of Guyana is an Executive President who possesses a wide range of powers including those retained from both the Governor-General and the Crown,” the Judge noted.
Citing from the book Fundamentals of Caribbean Constitutional Law, Justice Harnanan said, “…under the Common Law, the prerogative powers were invested in the President upon the State becoming a Republic. Upon becoming a Republic, Guyana and Trinidad and Tobago removed the Crown as Head of State and vested the exercise of the prerogative in the Republican State exercised by the new President”.
The Judge said that Section 22 of the Civil Law Act, which was enacted in 1970, gave statutory recognition to the Common Law concerning the prerogative conferred upon the Crown in Guyana.
Therein states: “Except specifically enacted nothing in this Act contained shall be deemed to limit or restrict the royal prerogative as hitherto enjoyed by the British Crown under the Roman-Dutch Law Act of Guyana, and except as aforesaid that prerogative shall as from the date aforesaid comprehend all the pre-eminence and all the special dignities, liberties, privileges, and powers conferred upon the Crown by the Common Law of England”.
Section 4 of the Republic Act reads: “Where under any existing law any prerogative or privilege is vested in Her Majesty the Queen or the Crown in respect of Guyana that prerogative or privilege shall, on the appointed day, vest in the State and subject of the Constitution or any other law, the President shall have the power to do all things necessary for the exercise thereof.”
“This court also agrees conclusively with the contention that there existed, and continues to exist, a prerogative power in the Crown recognised by the law to confer upon members of the practising Bar the status of Senior Counsel. That power by Section 4 of the Republic Act was transferred and vested in the President as Head of State of Guyana. Therefore, the President of Guyana had and continues to this day, have the power to appoint members of the Bar to the dignity of Senior Counsel,” Justice Harnanan held.

No trespass
Jonas had further argued that the Judiciary is exempted from Executive control which was made even more clear with the enactment of the 1980 Constitution.
Against this backdrop, he said that purported appointments by the former President trespassed on the doctrine of separation of powers by seeking to dictate to the Judiciary how it must conduct a function of the administration of justice. There were also contentions that the prerogative power to appoint Senior Counsel infringed upon the sovereignty of the people guaranteed under Article 9 of the Constitution.
But Justice Harnanan stated that Jonas failed to establish how this prerogative power prevented a judicial officer from exercising their judicial power independently, how the court is subject to political or executive control or how this power interfered with the courts’ administrative management.
“This is no circumstance on the record that establishes an intrusion into the remit of the Judiciary as set out in Article 122 A. It is the court which remains in control of its processes and not dictated in any way by the exercise of the prerogative by the President,” the High Court Judge held.
“While the Constitution imposes sovereignty on the people, such sovereignty is to be exercised by representatives one of whom is the elected President. There is no inconsistency between the Republic Act and Article 9 of the Constitution. This court does not find the complaint by [Jonas] to be meritorious. There are no issues of unconstitutionality in the appointment process.”

Transparency
Justice Harnanan admitted that the manner in which the appointment of Senior Counsel is done is “somewhat opaque”. “This may lend itself to the perception that persons who are undeserving of this esteemed honour may benefit from patronage or another. There is nothing unsavoury in the manner of appointment as it follows on the traditions which have flowed from royal prerogative.”
Notwithstanding, he said the court believed that the time for reform of the process of appointment of lawyers to the status of Senior Counsel was opportune.
“There is a need for increased transparency of the required criteria, the nomination and election process of deserving counsel to be bestowed the honour of taking silk. This court welcomes the remarks by the Attorney General Anil Nandlall when he indicated in his oral arguments that a review of the manner of appointment is near,” Justice Harnanan said in closing.
These proceedings come nearly eight months after Jonas had his Senior Counsel appointment withdrawn by then President Granger after he announced his affiliation with A New and United Guyana (ANUG) – a new political party formed to contest the March 2, 2020 General and Regional Elections.
Apart from the Attorney General, other respondents in these proceedings included Senior Counsel
Edward Luckhoo, Senior Counsel Andrew Pollard, Senior Counsel Stephen Fraser, Senior Counsel Stanley Moore, Senior Counsel Ralph Ramkarran and the Guyana Bar Association.
After a 20-year hiatus, former President Granger conferred the title of Senior Counsel on nine lawyers in 2016. Among those recognised for their exceptional legal expertise were acting Chief Justice Roxane George and Justice of Appeal Dawn Gregory.