The first appointment of a Queen’s Counsel in England was that of Sir Francis Bacon, made by Queen Elizabeth 1 in 1594, for a political purpose. Following the tradition that developed since then, the institution is recognized in most of the Commonwealth countries. When lawyers speak of ‘taking silk,’ they are referring to the time of their preferment by elevation to Senior Counsel, formerly Queen’s Counsel. ‘Taking Silk’ refers to the fact that lawyers who are conferred with the honour wear a differently designed robe made of silk. They also speak of being admitted to the ‘inner bar.’ This refers to the second bar table in the well of the Court where, of lawyers, only Senior Counsel may sit.
There has been no shortage of controversy in the Commonwealth about the continuation of the institution or about its reform. Arguments and public discussions on these issues have been going for decades but, with reforms, the institution has been retained. In England appointments were suspended for several years because of concern about fairness. When they resumed in 1995, solicitors were appointed. In some countries academics are appointed. But one of the main areas of controversy is fairness and transparency, even though in developed countries partisan political considerations in appointments have been largely eliminated.
Although favouritism in Guyana, including political favouritism, existed in the pre 1960 period, it was during the 1970s that the process became overtly politicized. The eminently qualified Ashton Chase, the late Clarence Hughes, Miles Fitzpatrick, the late Doodnauth Singh and the late Derek Jagan were denied appointment because they were considered to be hostile to the Burnham government or to Burnham himself. Except for Miles Fitzpatrick, who declined the honour from a government that was not freely elected, the deserving lawyers had to wait until the latter half of the 1980s during the Desmond Hoyte Presidency when personal political hostility to them declined.
During the Hoyte administration several lawyers who were formerly solicitors were also appointed among whom were Sase Narine, the late H.A. Bruton, the late Eric Clarke and the late Mansoor Nazir. The latter two never appeared in Court, at least for the two decades before they were appointed and never conducted a trial. Trial experience or court appearances in Guyana, England, and elsewhere long ago ceased to be a criterion.
During the above period, when one would have expected it, there were no official calls to abolish ‘silk.’ From the early 1980s the Guyana Bar Association had leadership that was independent of political parties and had considered the discriminatory deprivation of the distinction, but did not call for its abolition. It has never done so.
There were two sets of awards made during the Cheddi Jagan administration, in 1994 and in 1996. These appointments were initiated by the judiciary in each case, which invited applications, as is the tradition, although the appointments in the latter case included applicants who initiated their own applications, as is done in England. No further appointments have been made.
During the past eighteen years a generation of lawyers, practicing for thirty years, more or less, have long qualified to be honoured. Others have since qualified. Many of these lawyers applied only when personally invited by the previous Chancellor to do so ten or more years ago and, embarrassingly for them, it appeared that former Chancellor Bernard could not persuade the authorities to make the appointments. With that experience, it is quite possible that the current Chancellor (ag.) may not have tried.
National honours have been sparsely made for so long, and no appointments of Senior Counsel have been made, because the practice of honouring fellow citizens, even distinguished public servants and NGO workers, by the past and current administrations has fallen victim to the culture of sycophancy that says that only those who sing your praises are worthy of recognition. It is now believed that the administration has become interested in a particular appointment and for that reason may concede to making other appointments to avoid public accusations of discrimination.
The institution of ‘silk’ has been diminished by forty years of political control over the process. In order to assist it to recover its original prestige, those who distinguish themselves after decades of practice, in addition to certain office holders such as the Attorney General, the Director of Public Prosecutions and the Solicitor General, ought to be accorded the distinction as they are in other Caribbean countries. If in the process vindictive, public statements by politicians made in the past are given the short shrift that they deserve, it will go a long way to restore the institution.
It is quite appropriate that a public debate is now underway about the honour, even about its relevance at this time, having regard to the serious problems facing the judiciary. But these problems are not new and abolishing ‘silk’ will neither solve them nor focus greater attention to them. That apart, the time has now come, arising from recent events, and I believe that the authorities are fully convinced about it, that the standard processes for appointments both to the Bench and for Senior Counsel, hitherto utilized by all, have now to be reformed by incorporating additional systems, fixed criteria and standard time lines to eliminate discretion as far as possible, with known protocols to enhance transparency.