Ramlogan makes a case for silk

 

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Category: Trinidad Politics 15 Jan 12

 

On December 30, 2011, President George Maxwell Richards presented silk, a prestigious award of a silk gown and attendant privileges, traditionally given to practicing attorneys who have distinguished themselves. The award was given to 16 lawyers including Prime Minister Kamla Persad-Bissessar, and Attorney General Anand Ramlogan. In a surprise move, Chief Justice Ivor Archie and Justice of Appeal Wendell Kangaloo were also awarded the title of SC, which created a furore in the legal fraternity and among heavy weight legal luminaries whose concern was (among others) that judges accepting a “gift” from the Executive was going down the slippery slope of eroding the public's confidence in the independence of the Judiciary, and signalled a serious breach of the doctrine of the Separation of Powers between the Executive and Judiciary vital to a democratic republic. Exactly one week later, Justices Ivor Archie and Wendell Kangaloo returned their instruments of silk to President Richards raising the question of why it was given and accepted in the first place. In this interview with Ira Mathur, Attorney General Anand Ramlogan maintains he did no wrong.

 

Q: Martin Daly, SC, has likened the award of silk to a sitting judge to “driving a donkey cart through the separation of powers”. Why were Justices Ivor Archie and Kangaloo singled out for this honour only to return it one week later? Is this an implicit acknowledgement of their error in accepting it by making them beholden to the Executive and yours in recommending them for this award?

A: In England the Crown bestows titles on all judges, makes them knights and dames in High Court and lord and lady justices of appeal in the appeal courts and Privy Council.

It is mischievous to say if the Executive gives a judge an honorary title or award his integrity or independence is compromised. The Chief Justice and the most senior court of appeal judge were chosen as holders of the two most senior offices in the judiciary in recognition of their contribution to the law. They were not invited to apply as this was an honorary title of a legal character. They are attorneys but as judges no longer practice as members of the bar. All they get is the letters “SC”. I did pause to consider whether it was unprecedented. Enquires revealed the following: Former chief justice Clinton Bernard was awarded silk in 1988 by the AG of the then NAR government, when prime minister ANR Robinson gave silk to then CJ, Clinton Bernard, when Michael de La Bastide was the president of the Law Association, Karl Hudson Phillips was the leader of the ONR. There were several distinguished practitioners on the Council of the Law Association, many judges and silks. It appeared that a new precedent was deliberately set with an implicit stamp of approval by all concerned. The idea that a PM having awarded silk to a particular judge would call in favours is outrageous. I agree, two wrongs don’t make a right. I am a young AG, 39 years old. I drew intellectual comfort in the knowledge that this precedent of awarding a judge was created under the watch of legal luminaries who didn’t raise a voice of dissent. Was the donkey cart invisible then? Was CJ Bernard’s vanity not misguided? Judges such as Justice Ibrahim have been given national awards from the PM (1988). No one complained, no one asked why he was singled out.

 

Why not simply give them national awards?

What’s the difference? The Chief Justice is the head of the National Awards Committee which makes recommendations to the PM. When Sat Sharma and Michael De Labastide got the Trinity Cross did they apply to themselves for this award? Did they recommend themselves for the “TC” and in priority to other applicants? No one has ever faulted them for the “gift” bestowed by the then PM. Any judicial system is open to exploitation by the State which controls the purse through judicial funding, be it a paper clip, or travel, or its influence over the Salaries Review Commission set up by the President who is chosen by the Executive. Judicial corruption can only occur if the judge lacks individual integrity and independence which made him unfit for judicial appointment in the first place, in which case withholding or returning an honorary title will not suddenly invest him with a character he doesn’t possess. The learned judges returned silk not because they were undeserving but they were concerned about the potential adverse impact it could have had on the judiciary as an institution and ultimately vindicated our choice of them as senior counsel.

 

By giving the Prime Minister (not a practicing attorney) did you dilute this honour?

I persuaded the PM who was initially reluctant, to accept silk. There is precedent for this, too. Mr ANR Robinson, a former prime minister similarly circumstanced has taken silk. We have had three attorneys as PM and two out of three have taken silk. The PM herself, a former AG and Minister of Legal Affairs, has had a very active private practice in which she championed the cause of the underdog, and those to whom justice is often denied…the poor. In the last decade, she did the majority of cases for the then UNC opposition in constitutional and administrative law representing several parliamentary colleagues. I am convinced she deserves it.

 

Why did you, the AG, award yourself silk?

There is precedence for this, too. Karl Hudson Phillips, Ramesh Lawrence Maharaj and John Jeremy took silk during their tenure. The AG is the titular head of the bar. In many countries in the Commonwealth (Barbados and Jamaica for example) the established practice is for the AG to take silk. I have done hundreds of appeals, amassed 45 Privy Council cases, and did many historic constitutional and human rights cases. Few can deny I got it on merit. My life experience in rural south Trinidad taught me that courage was essential to survival. Poverty has an inherent sense of injustice. I grew up in it, was riled up by it and stood up against bullies. My life experience in rural south Trinidad taught me that courage was essential to survival. Poverty has an inherent sense of injustice. I grew up in it, was riled up by it and stood up against bullies. I am the 16th child in a family of 18 children, and the first to have a university education. I grew up in Ben-Lomand Village. I attended Reform Presbyterian School, Asja Boys College and Pleasantville Senior Comprehensive School. My mother worked as a maid and washed cars to send me to school. My parents didn’t have an education but they sacrificed, and their dream for my success became a duty and a responsibility which I propelled forward with scholarships. I have a Masters from the world’s best university (Queen Mary) for Corporate and Commercial Law but my 13-year legal career has been dedicated to the poor and downtrodden with cases ranging from police brutality and racism, to medical malpractice.

My mission was to rectify the injustices that surrounded me as a child. I understand only too well that a functioning democratic society requires respect for the rule of law, and the major part I play in this office to protect and preserve the independence and integrity of the judiciary.

 

It has been implied you departed from procedure?

Every AG will approach things differently. Ramesh Lawrence Maharaj says he had a committee. It worked something like this—He “selects” a committee, he advertises, he drafts an application, he is “interviewed” by people he selected over his selection of applications. I think he would pass this interview. What do you think? (It’s like being interviewed for a job but getting to choose your interviewers). Under this “committee” his wife gets silk. How independent and transparent is that? Why did he not remove himself entirely from the process so that he would have no ‘say’? The committee submits recommendations to him, some of which he accepts and rejects. The procedure is if an AG feels someone is worthy of silk he may invite them with a diplomatic word to submit an application, look at his CV to make sure it satisfies established criteria. Others whose record of service is well known may be considered without the need for an application. There is informal and diplomatic consultation with relevant stakeholders, the president of the Law Association, Chief Justice, and other senior practitioners in active service. Once a list is finalised, the AG presents it for the PM’s consideration. That process was followed.

 

You have subsequently announced a Green Paper for public consultation on the relevance of Senior Counsel. Should silk be abolished?

Our system was transplanted from a country with a 400-year long history of silk which we, with a history of slavery and indenturship, didn’t have. In T&T the appointment of silk was always fraught with accusations, disappointments and complaint, shrouded in mystery, secrecy and some sort of ill defined esoteric system despite protestations to the contrary.

It was felt by many that it was an old boys club. We have already adapted the honour as barristers and solicitors are fused in our system. In England silk has been described by some critics as a licence to print money. Legal fees are doubled. The fact that they are sitting in the front row and accorded privileges creates the perception in the eyes of the lay litigants that the court may be biased in favour or the SC and his client. On the cusp of our 50th independence anniversary I see the “controversy” as an opportunity to initiate a healthy discussion on its relevance. The disquiet occasioned by the recent appointment of silk is symptomatic of the continuing need to review many concepts, practices and traditions inherited from the British Empire.

 

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