Not frivolous or vexatious at all!

Aug 03, 2020 Features / Columnists, Peeping Tom

Timothy Jonas’ challenge of the appointment of four Senior Counsel is neither frivolous nor vexatious. It is an important legal challenge which is likely to clarify important legal and constitutional principles.
First, it will help to determine under what authority – statute of convention – the former President presumed to act when persons were identified for appointment as Senior Counsel. No law or article of the Constitution has ever been adduced as the basis for such appointments.
In 2016, President David Granger announced the names of nine persons as Senior Counsel. This was the first appointment made since 1996. And he continued to appoint persons to the position of Senior Counsel in the following years.
When the appointment of Senior Counsel was resumed in 2016, it was likened to that of a national award. But it was far from that since it has implications for status within the legal profession.
Senior Counsel, like Queen’s Counsel, are considered as senior and esteemed members of the legal profession. The appointment therefore has a bearing on the standing of persons within the legal profession. According to one legal luminary, Senior Counsel have the privilege of sitting within the bar of the court “and wear gowns of a similar design to that of a judge and are usually referred to as ‘silks’ and are given precedence when dealing with matters when called.”
The appointment therefore cannot, and should not, be seen as a national award. There is no award of Senior Counsel listed in the system of National Awards laid out under the Constitution. And so such an award has been created by statute, or at least none is known at this time.
The first question therefore which this legal challenge will answer is from whence a President derives the authority to make such appointments. President Granger had suggested that the power to make such appointments was traditionally a royal prerogative, that is a prerogative of the King or Queen and that such authority is usually vested in the Head of State. But what is the means by which an independent state, with its own Constitution, inherits a royal prerogative?
The Court will most likely called upon to pronounce as to whether a Head of State of a Republic which has severed all constitutional ties with the Crown, can exercise royal prerogatives, especially in light of the fact that so many of these prerogatives have become obsolete or are now incorporated in statute.
I recall three years ago, in discussing a different issue Anil Nandlall, now returned as Attorney General, had this to say about the obsolescence of royal prerogatives: “The non-justiciable argument is a relic of a bygone era and owes its genesis to certain aspects of the Royal Prerogative which were beyond the reach of the judiciary and not amenable to its review. This concept has no place in a legal system where the Constitution is supreme and where the judiciary is its guardian and imbued with an unlimited jurisdiction not only to ensure that it remains supreme but to strike down any law or actions which not only violate or are inconsistent with it but also which seek to question or undermine its supremacy.”
The second question which the Court will most likely be asked to address is whether the nature of the appointment of Senior Counsel, by the Executive arm of the State, conflicts with the doctrine of the separation of powers. Under this doctrine, the judiciary is supposed to be insulated from control of influence by the Executive.
If, as been argued, Senior Counsel are considered privileged within the legal system and if they are supposed to be given precedence when matters are called, this is all the more reason why such appointments should be made outside of the realm of the Executive. They should ideally be reposed in the judiciary itself or some independent quasi-judicial committee.
These are two of the main concerns which I believe are likely to be addressed in the court proceedings. They are important questions which concern the legal authority or making such appointments. And, if such authority rests with the President, then does it collide with the doctrine of the separation of powers?

(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)

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