Why a lawyer of Hughes’ huge calibre was not awarded Silk?

Jan 07, 2017 Letters

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Dear Editor,
I write further on the issue of the recent appointment of Silk. A weightier consideration that should be reflected on is that taking Silk is tantamount to service to the Crown – in our case, service to the government which is the equivalent. This poses an obvious difficulty for judges who are appointed Silk. The challenge here is that their obligation to serve the government by conferral of the title brings into potential conflict the independence of the judiciary. And we all know that the independence of the judiciary is pivotal to the Separation of Powers (there must be separation between the executive, judicial and legislative arms of government). This again threatens the already fragile fabric of our democracy.
Still further, SC are ordinarily expected to be very involved and active members of the Bar Association of their respective jurisdictions. Think about the curious situation which would be occasioned by a sitting judge being a member of the Bar Association, an association which should be a vanguard of the public interest relative to the administration of justice.
In December, 2011 the Prime Minister, Chief Justice and a sitting judge, among others, were appointed as SC in Trinidad and Tobago. This sparked a national outcry from the Law Association of Trinidad and Tobago (the equivalent of our Bar Association), senior attorneys (themselves SC), senior judges, and civil society. The chief justice and the sitting judge abided by the collective sentiments of the objectors and returned their patent. The Law Association caused a Committee to be appointed to report on whether the conferral of Silk should be sustained, and, if so, what should be the method and criteria of appointment. I wish to commend two of the recommendations of the Committee to our appointment of SC. Before I do, permit me to say, frankly, I have the highest respect for the judges who have been appointed SC.
But I have a more profound respect for the collective right of my countrymen to a truly democratic society. Also, even if it were customarily permissible to appoint sitting judges as SC, we should be excited by the fact that neither the Chancellor of the Judiciary nor the Chief Justice made it on this list, whether by application or invitation. Are we to suppose that these high ranking judicial officers who sit at the helm of the judiciary are not possessed of the attributes of SC? Do let that soak in!
It has been traditional both in England and certain English-speaking territories in the Region to appoint SC as Attorney Generals (AGs). In Guyana the only AGs who have not been SC are Nandalall and now Williams. Nandalall was of the opinion that the appointment as SC should be automatic for the AG. I cannot say if it is on this basis that Williams has been so appointed. The practice in the other territories, including England, has been for both AGs and judges to take Silk before assuming office in these higher capacities.
I have read somewhere that our new SC were appointed on the recommendation of the AG. I have not been able to confirm the accuracy of this representation. And I stand by my own error if it is incorrect. But presupposing the accuracy of this suggestion, it would seem quite the paradox for an AG to become SC upon his own recommendation, save for his appointment as SC being a gift of the office as suggested by Nandalall as the appropriate practice. Nandalall’s utterances on the infamous tape must render his suitability for the conferral of SC untenable. This is regrettable because in my opinion Nandalall is an exceptional attorney, if I were to confine my assessment to his legal acumen and advocacy skills.
The Committee appointed by the Law Association of Trinidad and Tobago has recommended that the appointment of SC should be upon the recommendation of an independent body with the president ceremoniously confirming the appointments. Non-practicing attorneys should only be appointed as SC honoris causa, which simply means as a mark of esteem (similar to one receiving an honourary doctorate). However, the obligation of such appointees would be to contribute handsomely to the jurisprudence of the country through sustained scholarly writings (books, articles, etc.). We would do well to follow this practice.
Finally, and yes this has been a necessarily long piece, I am particularly unnerved by Nigel Hughes not being appointed as SC. Hughes tendered his application in either 2002 or 2003 when applications were invited for attorneys desirous of becoming SC. This bore no fruit for any of the then applicants. Then in 2014 applications were again invited and Hughes again tendered his application. I was quite surprised when Hughes’ name did not appear on the list of appointees.
There can be no sustained argument that Hughes does not match or surpass ever criterion for the appointment of SC. Hughes is a giant oral and written advocate at both the Criminal and Civil Bars. And his observance of the oath he has taken and the ethics of the profession are similarly without sustained challenge. The material occasions upon which his practice has been called into question are the Amalia Falls issue and the issue with the jury foreman in the Lusignan massacre case; both of which were persuasively dispensed with.
I have had the coveted privilege of working closely with Hughes for two years prior to heading to Law School. Lawyers consult with him; magistrates consult with him; and judges consult with him to tap into his seemingly infinite legal knowledge and wisdom. I have seen Hughes lead teams of attorneys with at least four SC as part of the defence panel. On occasions SC sat in court awaiting his arrival because they refused to commence the day’s proceedings without their lead attorney.
It is a marvel for lay persons, attorneys, magistrates and judges alike to watch Hughes in action. And this sentiment has been expressed to me personally by persons in all of these categories. One wonders why an attorney of Hughes’ calibre was glossed over for appointment as SC. Hughes has been critical of the Coalition government while still affiliated with it.
He has openly criticised the missteps of the government. Could this have inspired the disfavour of the government in appointing him SC? And Hughes is but one of the SEVERAL attorneys who are most deserving of being appointed as SC. In 2011 Jagdeo did say that Hughes would never be appointed SC under his administration, clearly politicising the appointment process. It would appear that this sentiment has survived the PPP. I continue to be rendered uneasy by the patent silence of the Bar Association on the innumerable issues warranting its comment or condemnation.
Ronald J. Daniels

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