High Court throws out challenge to President’s appointment of Senior Counsel

Dec 18, 2020 News

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– Nandlall, Jonas, Ali immediately conferred with ‘Silk’

Kaieteur News – High Court Justice, Narweshwar Harananan, yesterday ruled that the President of Guyana has the power to appoint members of the bar to the status of Senior Counsel (SC).
In doing so, Justice Harananan threw out the application by attorney-at-law, Timothy Jonas, who had challenged the presidential appointment of four lawyers to SC.
Ironically moments later, Jonas was himself promoted to the dignity of SC by President Irfaan Ali along with attorney-at-law Jamela Ali and Attorney General, Anil Nandlall, who were also respondents in the case.
Jonas had moved to the High Court to challenge President David Granger’s appointment of attorneys-at-Law, Jamela Ali, Roysdale Forde, Mursalene Bacchus and Stanley Moore as Senior Counsel.

Jonas had requested an Order of Certiorari to be directed to the Attorney General to quash the decision by the President to appoint the members of the bar. He contended that the President, in making the appointments, acted ultra vires or outside the realm of his functions.
The lawyer had, through his attorney and President of the Bar Association, Teni Housty, contended that the decision of whom is appointed to the SC inherently lies with the Full Bench of the High Court of the Supreme Court of Judicature and not the President.
According to him, as President and a member of the Executive, a decision to appoint Senior Counsel, trespasses into the realm of the judiciary and violates Article 122 of the Constitution of Guyana, which speaks to the doctrine of the separation of powers.
However, in his ruling yesterday, Justice Harananan disagreed with the position taken by Jonas. The Judge reasoned that there is no proof that the independence of the judiciary is compromised by the presidential appointments as it in no way directs the Court how it must treat the appointees.
Justice Harananan also found that there was no issue of the Constitutionality of the appointments.
“Historically,” he said “the Executive came to have a role in appointing senior counsel, after the royal prerogative power was handed down from the Crown to the Governor-General and then the Executive President when Guyana became an independent country.”
This point was argued by the AG Nandlall, who disagreed that the case lacks merit and should have never been filed.
In submissions, Nandlall held that the President has had the power to confer silk since independence. He explained that after Guyana gained independence, the power was transferred to the President as the Head-of-State from the queen.
“That power,” he argued, “was transferred to the President, where it remains and was never vested in the judiciary.”
Further, Devindra Kissoon who represented leading senior counsel, Edward Luckhoo, S.C., Andrew Pollard S.C., Stephen Fraser, S.C. and Stanley Moore, S.C. in this matter argued that the Republic Act clearly retained prerogative power and has not been voided by Parliament.
He noted that the Privy Council in 2009 decided that a prerogative power was the appointment of SC, that the appointment took effect from the time the President appoints; there being no requirement for appointment by the Full Court (that being ceremonial) and that the Judicial Service Commission has no power over the appointment of lawyers.
“Of chief importance,” Kissoon said is that Dr. Mohamed Shahabuddeen in 1980 in the 208th sitting of Parliament who stated as it related to the Legal Practitioners Act that: “This Bill does not deal with the appointment of Senior Counsel. This is because the power to make such appointments derives not from statute but from its prerogative of the Executive, “he said.
As such, Justice Harananan in agreeing with the arguments put forward by Kissoon and Nandlall struck Jonas’ application out.
The Judge, nonetheless, stated that while his ruling is not in favour of Jonas, the time for reform of the process in appointing Senior Counsel is opportune.
He stressed on a need for transparency in the nomination process for persons the President intends to confer with silk.
“But the case brought before the court does not challenge the process, and as such, the ruling does not address that,” he said.
Shortly after the ruling was given, President Ali moved ahead with appointing three members of the bar to the position of Senior Counsel. Jonas and Nandlall were among the recipients of the instruments of appointment.
The honour of silk is conferred on distinguished lawyers. Lawyers with this status wear silk gown, a status which is recognized by the courts and gives recipients privilege and respect.

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