President’s power to appoint Senior Counsel dates back to colonial times – AG

…in response to Jonas’ application to quash appointments

The power of the President of Guyana to appoint attorneys-at-law to the dignity of Senior Counsel (SC) originates from colonial times, according to Attorney General and Legal Affairs Minister Anil Nandlall.
Nandlall made this assertion, among others, in submissions filed in the case brought by Attorney-at-Law Timothy Jonas, who is challenging the authority of former President David Granger to appoint lawyers, Roysdale Forde, Mursalene Bacchus, Jameli Ali and Stanley Moore as Senior Counsels.
Jonas’ main argument was that there is no statutory or other power conferred on the President of Guyana, whether as President or otherwise, to make such a decision or to appoint attorneys-at-law to the dignity of Senior Counsel (Silk). As such, he contended that the decision by the former President is entirely void and of no effect.
Against this background, Jonas argued that “insofar as the President, a member of the Executive, purports to make a decision within the province of the inherent discretion of the High Court, “his [Granger’s] trespass into the realm of the Judiciary violates Article 122 of the Constitution of Guyana, and is illegal and void.”
Article 122 states, “All courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any other person or authority; and shall be free and independent from political, executive and any other form of direction and control.”
The lawyer argued, too, that the appointment of Senior Counsel lies within the inherent discretion of the High Court of the Supreme Court of Judicature. He said that the power and discretion to admit persons to practise at the Bar; to preside over such persons; to discipline, suspend and disbar such persons is conferred by the provisions of the Legal Practitioners Act and Common Law on the Supreme Court of Judicature.
He contended, however, that from time to time, the Full Bench of the Supreme Court of Judicature, in the exercise of an inherent jurisdiction, exercise a discretion to confer on attorneys-at-law who have practised with distinction before the court the dignity of Senior Counsel.

Colonial times
Nandlall in responding to Jonas’ application argued that the claim that the President does not have the prerogative to appoint Silk cannot be defended. In fact, he noted, “…the prerogative to appoint Queen’s/King’s Counsel originated with the monarch, and in Guyana’s case, was exercisable by the Governor, who was the Queen’s representative in British Guiana.”
Nandlall said that the powers of the Queen were exercisable by the Governor-General pursuant to the Guyana Independence Ordinance 1966, which powers include the prerogative to appoint Senior Counsel.
“Additionally, the common law of England, which included the prerogative of the monarch to confer Silk became the common law of Guyana since 1917 by virtue of the Civil Law of Guyana Act. The Republic Act then captured the, inter alia, prerogatives of the Queen, and vested same in the President of Guyana in 1970.”
According to the Attorney General, Section 7 of the Constitution of Guyana Act stipulates that existing laws, including the Civil Law of Guyana Act, and the Republic Act shall continue in force on and after the promulgating of the Constitution of Guyana Act as if they had been made in pursuance of the Constitution.
He noted that the effect of these provisions in that the prerogative to confer Silk, is, as dictated by the Republic Act, common law, and convention, vested in the President of Guyana, who is the Supreme Executive Authority of the Republic of Guyana.
The Legal Affairs Minister submitted that the questions which therefore arise are: whether the exercise by the President of the prerogative to appoint attorneys-at-law to the dignity of Silk; prevents the court, or any person presiding over the court from exercising their functions independently of his direction or control; subjects them to political executive or political control; and interferes with the court’s administrative autonomy, or prevents the court’s funding from being a direct charge on the Consolidated Fund.
“…the exercise by the President of the prerogative power to appoint attorneys-at-law to the dignity of Senior Counsel does not, in any way, interfere with the courts in the manner stated above, and therefore, does not infringe on judicial independence established by Article 122A of the Constitution of the Cooperative Republic of Guyana, Cap 101, Laws of Guyana.”
The Attorney General went on to submit that the President has the power to confer Silk as part of his prerogative to confer honours.
On this note, Nandlall added “…it is respectfully submitted that the dignity of Silk has become, by evolution of the convention, an honour. If we accept that the dignity of Silk is an honour conferred upon attorneys-at-law as a mark of distinction, then it must be accepted that the President of Guyana, as the fountainhead of honours in Guyana, has the power, or prerogative, to confer Silk as an honour.”
Jonas is seeking from the court, an Order of Certiorari directed to the Attorney General, quashing as wholly void and ultra vires, the purported appointments made by Granger. His application comes up for oral arguments on December 14, 2020, before High Court Judge Nareshwar Harnanan. The Guyana Bar Association and Senior Counsel Ralph Ramkarran were on Wednesday, added as parties to the proceedings.
Meanwhile, the proceedings filed by Jonas come more than a year after his Senior Counsel appointment was rescinded by former President Granger shortly 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. He had described the move as “vindictive politics”, noting that actions such as this have “tarnished the whole image of Silk”.