Recognition is earned and bequeathed

May 16, 2014 Features / Columnists, Peeping Tom

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There has never been any doubt in my mind that many, not all, of the persons appointed as Senior Counsel in Guyana attained such a standing long before they merited that status. A great many of the appointments as senior counsel made under both the PNC and the PPPC regimes were political.
It is doubtful whether some of those appointed would have ever made the cut under another government. In fact, one President was quoted as saying that one individual would never become a senior counsel, an indirect admission of the fact that some appointments may be based on political considerations.
This is not to say that the entire process has always been political. Not at all! Many deserving persons were meritoriously donned in silk. But many others owe their high standing at the Bar to political favouritism.
The appointment of senior counsel appointed was always susceptible to this risk. It was therefore necessary for a system to be developed that would be based on meritocracy. But never for once did I think that we would have reached a stage in Guyana, like in other countries, where persons would be invited to apply for appointment as senior counsel.
I think it is extremely awkward for anyone to have to apply to be so honoured. A modest man would never wish to apply. Someone applying may even be accused of wanting to elevate himself in the legal profession. These things do not accord with the lofty standing of a senior counsel.
If appointment as a senior counsel is recognition for service to the legal profession, then having to apply for the position of a senior counsel is incompatible with such recognition. A person does not gain recognition by having to apply for it. Recognition is both earned and bequeathed. It is not granted without merit; nor is it solicited.
For these reasons this columnist does not support lawyers having to apply for the status of senior counsel. There may be many deserving lawyers who will find it uncomfortable having to apply for the status of senior counsel. Modesty alone may prevent some of them from making an application.
Having to apply also creates a certain degree of expectation that the application will be favourably looked upon. If it is not, then the person who is not appointed will feel disappointed and may even harbour bitterness towards the ones successfully appointed and towards those entrusted with making the recommendation to appoint.
A balance therefore has to be found between the two best known practices of appointing senior counsel. A balance has to be found between the system in which a person is appointed by the authorities and the system in which a person is appointed after consideration of his or her application.
It would have been much better if a team of eminent retired jurists in Guyana could have been cobbled together to shortlist individuals for appointment as senior counsel. In making such a shortlist there will obviously be a need for criteria to be determined.
The first of these should be service beyond a certain number of years. One does not expect that a person just out of law school is going to be appointed. But equally one should not deny a brilliant lawyer, such as what Forbes Burnham was in his time, to be denied the status of senior counsel, simply because he or she may not have many years of practice.
Persons may be appointed as senior counsel for both their service in the criminal and civil domains. But the litmus test of a senior counsel should mainly be about an individual’s record in civil trials, because it is mainly in such trials that they will find greater leverage in demonstrating their competence in case law.
A person appointed as a senior counsel should also be associated with some important case which has found recognition in published law reports. More importantly, that person should have advanced arguments that had a bearing on the outcome of the proceedings.
For example, in the Esther Pereira case which saw the 1997 elections being vitiated, the argument that led to the vitiation was made by a counsel who advanced the position that the use of the voter ID card was unconstitutional. That lawyer was already a senior counsel, but it was his arguments that led to the elections being vitiated.
Khemraj Ramjattan’s brilliant use of citations and precedents following the legal challenge to the swearing in of Mrs. Janet Jagan is another example. Anil Nandlall’s superb arguments in a number of recent constitutional cases certainly, in my estimation, qualifies him most eminently for appointment.
In appointing someone as a senior counsel, it is necessary to consider that person’s contribution to case law. If that person’s contribution is given recognition in a published and reputable law report, then that person may be considered for the status of senior counsel.
There is obviously the temptation to award the status of senior counsel to lawyers who have served for many years in the profession. Such appointment may be seen as a good way of rewarding them for their years of service. That however should not be the case.  To qualify for the position of senior counsel should entail, at the minimum, that someone be associated with an important ruling in local, regional or even international jurisprudence.
In that instance and with due consideration to years of service, one can say that the appointment of senior counsel would be earned and would constitute justified recognition.

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