Your Lordship,
I take the liberty of using the public media to address this letter to you as the issues involved are of public importance and should meet with public scrutiny. I therefore apologise at the outset for my lack of decorum in bypassing a more private means of ventilating my thoughts to you.
At a function hosted by the Bar Association yesterday , you announced that you had recommended to the President of the Republic, no less than 16 names of barristers to accede to the rank of Senior Counsel, and that such recommendation had been favourably entertained. I would first of all unreservedly congratulate you on your decision to proceed with these appointments as many of them are more than long overdue. I would also like to express my warmest and most sincere congratulations to each and every member of the profession on whom this special honour has been bestowed - they are all my friends and colleagues at the bar and have justly deserved the recognition they are now receiving. I would however comment on the opacity of the appointment exercise and the resulting perceptions of injustice and unfairness that permeate as a result of this lack of transparency.
Indeed, whilst we are all aware that a senior counsel (previously known as Queen's Counsel or QC for short) is a senior member of the bar who has earned respect and merit by reason of his exemplary track record over a number of years, it is less clear as to what these criteria are in benchmarking the standards required to be achieved by a prospective senior counsel. In the absence of clear and transparent guidelines, one is left to surmise on a number of fundamental questions, including (i) the qualities having retained the attention of the selectors, (ii) the democracy of the selection exercise, (iii) the correctness of the information considered in the selection process, and (iv) the impartial treatment of all potential candidates.
It is no doubt for this very reason that the United Kingdom and a number of Commonwealth countries, having judicial systems like ours, have adopted clear procedures for the selection process of QC's. As opposed to being handpicked at random, prospective QC's in the United Kingdom are required to fill in clearly formulated questionnaires. The Queen Counsel Appointments (QCA) is the independent body in the United Kingdom which makes recommendations for QC's from the Queen's Counsel Selection Panel. The website of the QCA defines the selection process as follows:
" The award of Queen's Counsel is for excellence in advocacy in the higher courts. It is made to experienced advocates, both barristers and solicitors, who have higher rights of audience in the higher courts of England and Wales and have demonstrated the competencies in the Competency Framework to a standard of excellence. "Advocacy" includes both oral and written advocacy before the higher courts, arbitrations and tribunals and equivalent bodies. There is no specific requirement as to the amount of in court or written advocacy, so long as there is sufficient evidence for the Panel to reach a conclusion as to excellence in respect to each of the competencies."
The following guidelines are also issued:
" Combined with the revised competency framework, the revised process serves the public interest by offering a fair and transparent means of identifying excellence in advocacy in the higher courts.
The scheme:
1. places the competencies required of an advocate at the heart of the scheme
2. places selection in the hands of an independent selection panel
3. includes appreciable "lay" (non-lawyer) membership and judicial membership on the selection panel.
4. includes a modern "self assessment" in relation to the competencies and ensures that the "self assessment" is taken into account at the stage of decision
5. contains no element of "automatic consultation" or "secret soundings"
6. addresses the problem of "visibility" by focusing the selection of references towards only those who have personally seen the candidate
7. takes references from judges, practitioners, and professional clients, clients or client proxies
8. includes a face to face interview of the candidate, involving members of the Selection Panel
9. provides for the publication of information about the broad fields of law in which the candidate has demonstrated excellence as an advocate at the time of appointment
10. provides a mechanism for removal of the award for cause
11. provides arrangements for feedback to unsuccessful candidates, and for a complaints procedure.
12. is wholly self-financing
Turning back to our local situation, it is impossible to determine the parameters of the recent selection process (since there was no prior call for applications), nor is it possible to state that the exercise was fairly conducted. It is also unclear to what extent active presence in court (i.e litigation practice) was a determining factor, but I note that in the last selection exercise in the United Kingdom, 5 honorary silks were appointed by virtue of "their major contribution outside practice in court". I shall venture to use my personal situation to illustrate my above contention:
1. I was called to the bar 25 years ago ; 3 out 5 eligible candidates in my year have been appointed as Senior Counsel
2. I have been an active professional practitioner and have developed specialised skills in commercial and corporate law
3. I set up a structured law firm on the island more than 10 years before the coming into operation of the Law Practitioners' (Amendment )Act 2008
4. My law firm was the first domestic law firm to be registered as a law firm with the coming into effect of the new law
5. I have been actively involved in research and publication . I authored on my own, 2 major works, namely "Case law of Mauritius- A Compendium" and "Company Law of Mauritius" (in 2 editions).
6. I have been actively involved in the continuing annual publication of the Mauritius Reports and have in association with Lexis Nexis ,recently collaborated with the Attorney General's Office to publish the Revised Laws of Mauritius
7. I have spoken as a Mauritian expert commercial lawyer and promoted the local legal profession at a number of international conferences, including the International Bar Association
8. I am the head of a practice consisting of a dozen lawyers and employing about 30 persons.
I must also strongly deplore the fact that no woman barrister has been appointed in the last selection exercise. It is a matter of regret that in a profession comprising of a number of women judges and magistrates, and an increasing number of women practitioners, not a single woman barrister has been found worthy of appointment as senior counsel to date. So much My Lord for equal opportunities !
Your Lordship may construe my above "contestation" as being a barely veiled attempt at securing a future appointment. To this, I would humbly state that I am fully conscious that in taking on the establishment in such a frontal way, I have voluntarily disqualified myself for any future appointments. In any event My Lord, my motivation in bringing my great disappointment to the glare of the public eye is not to draw attention to myself, but to the injustice being caused to a number of deserving barristers who may never know why they cannot aspire to be Senior counsel.
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