4 Jan 2012

Tap up for PM, AG

Oh gawd, what a tap up!!

The award of silk to an incumbent Chief Justice or to a sitting judge of the Court of Appeal of T&T is an aberration which if previously committed, should not have been repeated. The simple fact of the matter is that elevation to the rank of “Senior Counsel” or the award of silk, as it is called, is an honour which can appropriately be conferred only on “counsel.” This term originally meant practising barristers but with the fusion of the legal profession in T&T has come to mean any practising attorney. It has also been extended to attorneys who, though not practising, have distinguished themselves in the academic field. There is no definition or interpretation of the term “counsel” that can include a judge of a superior court of record. Before we became a republic those awarded silk were designated “Queen’s Counsel” and their appointment was made by Letters Patent from the Queen. Since we became a republic, the designation is now “Senior Counsel” and the instrument of appointment is issued by the President of the Republic, on the advice of the Prime Minister.

Further, the expression “taking silk” is a reference to the silk gown which a person who has “taken silk” is entitled, and indeed required, to wear in court. Another practical consequence of taking silk is that an attorney who does so is thereafter required to have a junior when appearing in court. The fact that a judge has been a practising attorney (however distinguished) before assuming judicial office, or may after a prescribed period return to practice after he retires, cannot serve to qualify him for the award of silk while he is still on the Bench. It is fundamental to our concept of justice that the roles of judge and counsel be kept strictly separate and distinct. Those who accept judicial office are required to forego many of the advantages and opportunities that were available to them while in practice—one of these is the possibility of taking silk, at least while still on the Bench. The argument that sitting judges must be allowed to prepare for their return to private practice after they demit office is plainly unsustainable. The law at present prescribes that a judge of the Supreme Court may not appear before the courts of this country for a period of ten years after demitting office. Even if this period were halved by an amendment of the law, this would still leave ample time for the retired judge to apply for silk if he so wishes.

Alternatively, before going on the Bench the prospective judge can apply for silk and if he is worthy of it, presumably it will be granted him in short order. In practice, it is very rarely that a retired judge in this country returns to court practice. I am strongly in support of the contribution made by judges being recognised in a tangible way. The method which has been used previously is the grant of national honours. In the case of the Chief Justice, the practice has been to award him the highest national honour, previously the Trinity Cross and now the Order of Trinidad and Tobago. If this practice is adhered to, it will save us the embarrassment of providing our Commonwealth partners with a possible source of concealed amusement over what is an obvious gaffe. Finally, I would suggest that it is time that we follow the example of the United Kingdom and remove the grant of silk from the hands of the politicians and make it the responsibility of an independent panel which would include representatives of the legal profession as well as representatives of civil society. Suitable criteria should also be formulated to guide this panel and these criteria should not include the holding of any particular office, political or other.

Michael De La Bastide

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