Unquestionably moved by widespread national concern over the inherent threat to the independence of the judiciary which acceptance of the December 29, 2011 appointments posed, the two judges have responded accordingly and correctly. Indeed, Friday’s statement issued by the Department of Court Administration indicates their acknowledgement of the extent to which judicial credibility hinges on public confidence in its officers, ergo, two of the country’s top judges could not continue to be involved in a controversy of such immense political proportions.
We are dismayed if not perturbed nevertheless, that both men defend their acceptance of Silk and that as judges, they are unable to grasp the solid legal reasoning on which public outcry was based.
Convincing arguments against the appointments have been lucidly articulated by this country?s eminent jurists and counsel, Queen’s Counsel Karl Hudson-Phillips, former Chief Justices Michael de la Bastide, Sat Sharma, as well as Senior Counsels Martin Daly and Kenneth Lalla, who stated unequivocally that the tenet of separation of powers did not permit sitting judges to accept Silk, a political distinction of a servant of the Crown/State/Government. The independence of the judiciary is very much a matter of principle for the public.
The country owes the senior counsel a debt of gratitude and this newspaper lauds Karl Hudson-Phillips’ courage of conviction which drove him to take the legal argument to its logical conclusion and to call for both judges to return the Silk, as reported exclusively in last Wednesday’s Newsday. Were it not for his forthrightness, a fateful precedent would have been set and TT could have seen a scenario unfold where judges were regularly awarded Silk, professional appointments which would have placed them at the government’s service and which would have come to cloud their judgement. Judges, as ambitious as the next man or woman, might have become tempted by Silk into aligning their judgments with the politics of the executive of the day.
We disagree with the court statement’s hypothesis that judges who have been recipients of national awards must also return these. The conferral of Silk and a national award for service are philosophically and ethically, apples and oranges. Though politicians are involved in the process of selecting national awards, and the President acts on the advice of the Prime Minister, nomination may come from any citizen and as such, these awards are not viewed as coming from the executive, per se. Citizens may recommend themselves but they have no power to award themselves a medal.
Crucially, national awards recognise people for their contribution beyond the professional sphere. The Chaconia Medal is awarded for long and meritorious service that promotes the national welfare or strengthens the community spirit and the Hummingbird is awarded for loyal and devoted service in any field of human endeavour or for gallantry or other humane action. National awards are not a tool for professional advancement — they cannot function as a stepping stone to a loftier category of specialist and they provide no future monetary gain. They do not influence future ambitions or achievements. A judge, if given a choice of Silk or a national award, will inevitably choose Silk because the second will place him at the pinnacle of his field.
In the past week, several senior lawyers have called for a transparent, nonaligned system to be established which excludes the politicians from the process of selecting Silk. We agree. The system is unjust. Quite a few senior attorneys who prefer to be independent of political parties, but who merit recognition, will never be considered for Silk, and are effectively blacklisted. We may wish also to consider Silk an automatic entitlement of the Office of the Attorney General-head of the bar — so on assuming the post, the AG becomes a senior counsel and does not have to award himself the distinction, which goes against the grain of Integrity in Public Life. Though our Attorneys General may have been worthy of Silk — the current occupant of the office has fought many noteworthy constitutional matters and has conclusively earned the title-it is unseemly and improper for the office holder to bestow it on himself.
We’d like to urge DPP Roger Gaspard to return his instrument — we do not think him underserving but like judges, the office of the DPP must be independent and it must also appear to be free from executive sway, as well. As in the cases of the Chief Justice and Justice Kangaloo, the Silk that the DPP has accepted is an award conferred in highly controversial circumstances and it is thus a commendation that will forever be in question, taking him and his office into the contention. He should consider following suit.
Finally, the Prime Minister by recommending herself for Silk, lost a wonderful opportunity for proving that she possesses a higher standard than many of her predecessors. She would have gained enormous points from the public had her name not been on that list.