Written by Clarence Rambharat (T&T Express)
Do not believe that the Senior Counsel noise will easily lead to change. The Law Association was pushed here before and nothing came out of it. The AG may wish to provide the data to show whether taxpayers are the ones paying out the bulk of fees earned by senior counsel and their juniors. That may answer the question of why the legal profession has, despite many urgings and Commonwealth precedent, failed to resolve the antiquity of the appointment of silk and the political control of it. What we may find out is that it is not the Senior Counsel earning the oversized fees but the juniors whose selection is entirely a matter of politics.
The Senior Counsel issue jolted former chief justices and eminent seniors but found the Law Association asleep: at best the Association was scheduled to meet one week later in emergency session.
The Law Association’s flat-footedness on the senior counsel issue brought to mind then Chief Justice Sharma’s speech at the opening of the 2003 law term. Sharma cited the work of writer John Mortimer and “a general decrease in the awe and wonder with which the population looks at its established institutions”. If, as people believe, the country has been set upon by pessimists, cynics and doomsayers, many of them have just cause. When a country’s legal profession equivocates while the reasonable man takes the fight to the politicians, what else is left to fall apart?
An important question to be asked is whether clients should pay the increased fees senior counsel are allowed to charge and the two-thirds of seniors’ fees charged by the juniors they are required to use. At the heart of our problem may be that the antiquities of the Senior Counsel title have made litigation expensive and this is not an issue the Law Association wishes to address with any urgency.
The solution is not to fix the process of appointment but challenge the need to confer the title and fee-earning power in the first place. The State has generated the most involved and complex litigation and legal work in the past 25 years. While the pool of Senior Counsel has been small, the pool of juniors commanding high fees from the State has broadened to include a range of experience, quality and areas of specialty.
But invariably, selection of juniors from that pool is heavily political and changes in government have led to changes in the fortunes of juniors.
So while attention is fixed on the appointment of Senior Counsel, the real action is in the selection of juniors who work with “seniors” for the State and earn two-thirds of the seniors’ fee. The public debate must be widened to the combination of political control of litigation and legal work, political control of the appointment of Senior Counsel, political selection of juniors to work with senior counsel for the State and the payment of increased fees to both categories of lawyers.
In that speech at the opening of the 2003 law term, Sharma reopened the Senior Counsel debate in this way. The UK had just started its review of the process for the appointment of Queen’s Counsel. Sharma remarked that “ever since we can remember, the gift of Senior Counsel was always in the Executive. Whatever the reasons, they are not necessary to find out or to rehearse, for it is now clear that in modern constitutional thinking and jurisprudence there can be no justification for politicians making the appointments.”
Sharma then said, “the fact that such an appointment should reside in the hands of politicians can be disconcerting as even a beneficiary might not be sure whether his appointment as Senior Counsel was on the basis of political patronage or merit. I, therefore, invite the leaders of the various legal associations to join with me in seeking to have this anomaly put right. The independence of the bar and, in turn, the independence of the judiciary requires that no politician should be involved in the appointment of Senior Counsel.”
The Law Association, through its then-president Karl Hudson-Phillips QC, responded to Sharma’s comments but eight years later the Association has not resolved even the narrowest elements of the debate.
Now the Senior Counsel debate has turned into a re-enactment of old class, political and North-South disputes. And the Law Association has a responsibility to retreat from this debate and re-examine itself. It is remarkable that from the outset the Association’s name was shoved forward as having been consulted prior to the recent appointments. The Association took more than a week to deny such consultation.
Keep in mind that this is a society, grown distrustful, not by choice but through a barrage of letdowns by people and institutions it has granted high esteem. Public confidence has been weakened not by distrust; distrust has developed through a weakening of institutions and people. Too many exemplars equivocate and too many have become dependent on collateral matters of politics, ethnicity and position in order to formulate opinion.
It seems inevitable that as a self-regulated profession lawyers must resolve the matter and there must be a balance between the profession and the public interest. Matters of fees must be resolved by market forces and the other factors directly relevant to the case at hand. In 2003 Sharma concluded his reference to the appointment of “silk” by pointing out that in the UK “there was some strong criticism from both professionals and members of the public in England who criticised it as being archaic and outmoded and was really seen as ‘a licence to print money’”. No one should be handed a licence to charge for historical factors, irrelevant to the client and the matter of junior’s two-thirds appears to be more urgent than the recognition of eminence.
• Clarence Rambharat is a lawyer and university lecturer
Written by Clarence Rambharat (T&T Express)
I am left with this question: did Nizam Mohammed expose the UNC or upset it? Nizam’s submission to Parliament on ethnic proportionality was not accidental. It was grounded in the work of the AG, developed as a newspaper columnist, blogger and lawyer. The public must pay careful attention to see if this work is dead or if it will continue in anonymity and silence, advancing the so-called cause of Indians in a less obvious way. Or is it meant to advance a personal political agenda?
The AG is a well-known advocate of ethnic proportionality. But what is less obvious is that in almost every case in which he has written or spoken about ethnic proportionality, he has done so in the context of the PNM and its political power. In essence, the theory is that the ethnic imbalance in the protective services and other parts of the state and society is central to the political strength of the PNM.
I would imagine that logically extended, the AG’s view would be that rebalancing the ethnicity of the protective services and other parts of the society is central to building the political strength and national influence of the UNC, the country’s politics being irretrievably tied to ethnicity.
Based on that line of thinking, the AG has in the past been able to write on all the areas in which Indians are under-represented. My view is that some of this writing was not for the sake of advancing ethnic proportionality but reducing the perceived political power of the PNM and, without saying so, advancing the political cause he may be supporting at the particular time.
Now let me make this clear: in every society, equity, ethnic proportionality and non-discrimination are fundamental. In our plural society they are more tenuous and if they are left to seethe, they will sizzle and destroy. Two weeks ago I did not question the importance of what Nizam was saying. I challenged the fact that he was reporting on the submission made by another person to another public body; he had no data to support the statements; he did not discuss the matter with the other Police Service commissioners and, in any event, he was seeking to take on a fight that was clearly outside the PSC’s remit.
The AG is no stranger to the issue of ethnic proportionality. He has touched on the subject in at least a quarter of his newspaper columns and in almost every case he included a reference to ethnic proportionality and PNM political strength. In 2007 — the election year in which he eventually lost Tabaquite to former AG Maharaj — he wrote that “our country has two major races almost equal in numbers. The majority of Africans vote PNM and the majority of Indians vote UNC. Ethnic voting is a fact. The hierarchy of the police service is almost 90 per cent African from the rank of corporal upwards. Based on our history of racial voting the perception (and reality) is that African police officers vote for and support the PNM.”
And as a columnist he has said that “there is a growing perception among UNC supporters (the majority of whom are Indians), that there is a tacit political alliance between the PNM and certain high-ranking powerful officers in the police service.”
In advancing the link between ethnic proportionality in the Police First Division and public trust in the service, Nizam was in fact adopting one of the AG’s causes. It was the issue on which Nizam unsurprisingly laboured and then got pummelled. It was an issue which Ramlogan said in 2007 was central to the development of trust in the police service.
As he put it “the ethnic composition of the police service is fertile ground for this growing perception. Should such an important institution and pillar of our democracy not reflect the racial composition of our society? The perception that we have a PNM-friendly police service because of the conspicuous absence of Indian officers is not going to go away. Fear and respect for the police might make people reluctant to voice this perception, but it is there. The professionalism and integrity of our present officers is no answer to this problem of perception — remember that all-white judge and jury trial — they were not racial. It is crucial that the police service reflect the ethnic composition of the society that it has to protect and serve’. Ethnic balance inspires confidence and public trust.”
Now with Nizam gone and Anand Ramesar going soon we are left with a few questions for the PM, the UNC and the COP.
The first question is if it is true that Nizam got the inspiration for his description of the link between ethnic proportionality and public trust from within the UNC government, then does Nizam’s firing really bleach the UNC government of the statements made by Nizam?
Even if Nizam’s statement is not bound up with the AG’s views as a newspaper columnist, in what way is the UNC tied to the well established opinions and theories of its AG? Then, with the Government distanced from Nizam, what does the PM plan to do with those within the UNC structure, who have expressed similar views? Devant Maharaj, the chairman of the PTSC and a man who is noticeably silent on a cause he once fronted, has, for example, said the same thing Ramesar, Ramlogan and Nizam have said on ethnic proportionality. And finally, if only Nizam is condemned can it be said that Nizam’s views were intolerable from a Muslim but tolerable from the Hindus in the UNC — Ramlogan, Maharaj, Moonilal and Sharma, amongst others?
These questions are important because opinions and theories on ethnic proportionality must be shared by other members of the UNC, some placed in positions of significant political and decision-making power. And these opinions are not directed to advancing the so-called cause of Indians, but diminishing what is perceived to be the political strength of the PNM and advancing personal politics.
This is a letter to the Chairman of the Elections and Boundaries Commission
October 3, 2001
Mr Oswald Wilson
Chairman, Elections and Boundaries Commission
134-138 Frederick Street
The arrest of the women this week is only the start of a massive exercise in which many persons will be charged for falsely declaring their address in the San Fernando West Constituency yesterday.(21/09/01)
You know, one of the things that we in the Commission guard very jealously is the independence of the Commission … the other thing we feel very strongly about is the integrity of the Commission. (Raoul John, EBC Commission – 23/09/01)
The Commission (EBC) may regulate its own procedures yet you want a Commission of Enquiry? Is Parliament to tell them how to run their business? To call for a Commission of Enquiry into the conduct of the EBC is to cast aspersions on them. (Basdeo Panday, Prime Minister (29/09/01)
Dear Mr Wilson
This – my second letter to you, I expect, will suffer a similar, if not a worse fate than the first. As a citizen, however, I consider it my duty to remind you that in the governance of a republic supreme power is vested in the people and their duly elected representatives. And further, I am prepared to defend that principle against all who seek to subvert it.
In my previous communication, I called on the Elections and Boundary Commission (EBC) “to immediately undertake an open, independent and transparent forensic exercise to cleanse the electoral list of all defects”.
Through the present correspondence, I am strongly advising that all Commissioners immediately resign in the public interest. Should Commissioners insist on holding on to office, they run the very real and significant risk of further pushing the country into a deeper political/constitutional quagmire the likes of which none of us would wish to experience.
Whatever the personal integrity and independence of each, or indeed all, Commissioner(s) of the EBC, it cannot convincingly deny that there is a great deal of public mistrust and loss of confidence in its ability to impartially, ensure free and fair elections in the country.
Further, the EBC can take no comfort in the Commonwealth Secretariat’s Report. Their mandate did not include an investigation of the issues which now engage the Nation’s attention. The result of that election is still to be determined. And, whatever the result, it would inspire no confidence in electoral/political process that produced it. Nor can the EBC convince anyone of its view, as expressed by Mr Raoul John, that criticisms and allegations are coming from “mainly one group or quarter”.
This position has apparently blinded the EBC to the larger body of public opinion, which continues to express deep reservations over the conduct of the last general elections. Reservations not merely due to partisan considerations but rather to the stark realisation that the electoral process had been fatally compromised. This is attested to by the several arrests made by the police in connection with the voter padding issue as well as other elections related matters now before the courts.
In the present situation, the Commission’s invoking its independence and integrity, has a decidedly hollow ring and only heightens the suspicion that it is seeking to cover up possible evidence, which may confirm the many allegations.
Any election held therefore, under current conditions, would be a recipe for disaster. The most prudent course of action open to present Commissioners is resignation. This would clear the way for a fresh initiative to restore confidence in the independence and integrity of the EBC. It will also be the greatest gift that present Commissioners can give to our fledgling republican democracy. Failing this, history will not absolve members for failing to see the real opportunity for advancing democracy in Trinidad and Tobago.
In the public’s interest – Go In Peace!