Daly Bread: Understanding legitimacy—the unnecessary brouhaha over SC appointments

When a public official who has undoubted legal power exercises that power, a question of the legitimacy of the exercise of that power can arise. Legitimacy concerns the exercise of legal power in a manner that is appropriate and justifiable and does not otherwise disturb the public conscience.

Our governments love to exercise maximum leadership and, in the words of Mighty Sparrow, “let no damn dog bark”. However, we remain intelligent people grounded in common sense.

(From left) Chief Justice Ivor Archie, President Christine Kangaloo, her husband Kerwyn Garcia SC and Prime Minister Dr Keith Rowley.
(Copyright Office of the President)

We therefore have crises of legitimacy whenever the government fails to convince us of the cleanliness of the acts or omissions that disturb the public conscience.

In common parlance, the test of legitimacy for prudent decision makers is captured in the question: “How it go look?” Nevertheless, as a friend observed to me, there is an abundance of anyhowness in much of what currently passes for governance.

As I indicated in a television interview last week, the controversy that has arisen over the appointment of seventeen attorneys-at-law to the rank of senior counsel has its origin in the exercise of the power to appoint in a manner which has disturbed the public conscience.

The process for appointment to the rank of senior counsel requires an application to be submitted to the attorney general (the AG) for “his consideration”. There is no legal requirement for the AG to consult anyone before he makes a decision for further consideration by the cabinet and for the approval of the prime minister and submission to the president.

AG Reginald Armour SC votes during the Electoral College at Parliament on 20 January 2023.
(Copyright Office of Parliament 2023)

However, the government knows well that if the public believes that these appointments to the front row of the legal profession were made on the exclusive approval of the political executive, the appointments will lack credibility. Consequently, it sought to tell us that there was a consultative process—but the details of it are murky.

This controversy shows that there is now an irresistible case to amend the provisions of Order No 282, published in 1964. Standards of accountability have advanced considerably since 1964.

The regulation should provide that applications be considered by a panel chaired by the Chief Justice, to include the AG and other certain named officials outside the political sphere.

The role of the president in the appointment process has also come under harsh scrutiny, even though her role is limited to issuing the instruments of appointment in accordance with the advice of the prime minister.

President Christine Kangaloo (left) gives an address while her husband, Kerwyn Garcia SC, looks on.
(Copyright Office of the President)

This is because an obvious and foreseeable discomfort arose in the minds of the public upon learning that the president’s husband and a brother of hers were successful candidates.

On Monday last, the President hosted a function and distributed the instruments of appointment. The photographs of Her Excellency presenting instruments of appointment to those two closest of relatives did not sit well with significant numbers of citizens, particularly when the Opposition cried nepotism and fueled an atmosphere of influence peddling and interference in the selection process.

It was extremely naïve of the Office of the President not to anticipate the outcry and find a diplomatic solution to the dilemma before the presentation. The AG claimed and, despite his growing credibility deficit, it was accepted that he consulted with the Chief Justice about the applicants.

Perhaps after a careful explanation of the process to the public, the Chief Justice could have been invited to make the presentations on this occasion in order to avoid the trust destroying optics of the President anointing her relatives.

President Christine Kangaloo and Chief Justice Ivor Archie.
(Copyright Andrea De Silva/ Office of the President)

Those involved in implementing the process stood on legal rights without subtlety or finesse or regard for disturbing the public conscience. Some very able lawyers who were justifiably appointed, have the talent and good standing to overcome the rain on the parade—but it was all so unnecessary.

Will our rulers ever reform their maximum leadership ways?

Perhaps they might study and learn from the measured approach of Justice Devindra Rampersad in responding to the recent insult that Minister Fitzgerald Hinds offered the Judiciary.

By reference to a decision of the learned judge, Hinds commented that criminals have friends in the Judiciary. If the learned Judge had simply proceeded to use the Judiciary’s undoubted power, jail for contempt of Court would be near.

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About Martin Daly

Martin Daly
Martin G Daly SC is a prominent attorney-at-law. He is a former Independent Senator and past president of the Law Association of Trinidad and Tobago. He is chairman of the Pat Bishop Foundation and a steelpan music enthusiast.

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