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