Privileges of Elevation to the Silk: Matters Arising
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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 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.
In the British legal system, a Queen’s Counsel has the privilege of sitting within the inner bar of court and wears silk gowns of special design. The special robes are the reason becoming a queen counsel is referred to as “TAKING SILK.”
Taking silk in the Nigerian legal profession has meant different things to many people even as opinion is divided as to the efficacy of the selecting process not to speak of the constitutionality of the rank of the Senior Advocate of Nigeria. Essentially, king’s [Queen’s] counsels are barristers or sergeants who have been called within the Bar and selected to be the King’s [or Queen’s] counsel. They could not formerly be employed in any cause against the crown [example in defending a prisoner] without special licence. The above has been the meaning of the rank of Queen’s Counsel from ancient times.
Nigeria’s colonial experience informed the structure of the Nigerian legal profession as well as Nigerian laws. It naturally being a British colony meant the wholesale importation of the conventions and practices of the English Bar including the wearing of wigs and gowns.
With the passage of time and attendant growth of the legal profession, the idea took root of recognising formally those members of the legal profession who had distinguished themselves through advocacy in the courts. It made sense to adopt the English system and therefore became the aspiration of leading members of the Bar to be conferred with the rank of Queen’s Counsel. As a matter of convention, that meant sitting at the inner bar or the front row and the enjoyment of the privilege of calling their cases first and out of order. In modern Nigeria, the privileges and /or entitlements that are attended upon taking silk have been formalised by statutory regulation which today is the Legal Practitioners Act Cap L 11, Laws of the Federation of Nigeria, 2004.
All that has happened is that the statute sought to codify what had been inherited from the English legal system.
Section 6 of the Legal Practitioners Act states the privileges that Silks are entitled to, viz –
a. exclusive right to sit in the inner bar or, where no facilities exist for an inner bar, on the front row of seats available for legal practitioners; and
b. right to mention any motion in which he is appearing or any other cause or matter which is on the list for mention and not otherwise listed for hearing out of turn on the cause list.
It is noteworthy that the most significant privilege that a Senior Advocate of Nigeria enjoys is the right of calling their cases first and out of order. This privilege has given rise to some unease about the constitutionality of the rank of a Senior Advocate.
It is of course noteworthy that the English system is based on an unwritten constitution supported by vast bodies of conventions, some of which by reason of acceptance and usage over the centuries have taken on the aura of unbreakable laws. The Nigerian system on the other hand is based on a written constitution the most recent of which is the Constitution of the Federal Republic of Nigeria 1999. In the said constitution, in particular, Section 17  [a] it provides that -
“Every citizen shall have equality of rights, obligations and opportunities before the law”.
Such rights and opportunities must include the right to go before a court of law and present for adjudication any questions as to civil rights and obligations or criminal charges.
It has been the contention of a sizeable number of commentators that the constitutional provision of equality of citizens is defeated when the richer citizen is able to engage the services of senior advocates who by reason of the privilege of mentioning cases out of turn, sitting at the inner bar and wearing a silk gown would appear to be enjoying a favoured status both in the court room at the time of hearing and even outside the court room. Thus, the possession of substantial means enables a litigant to place his poorer opponent at a serious disadvantage in the dispensation of justice entirely unconnected with the merits or demerits of case before the court. That view appears to have underscored a decision of the High Court in Ghana which led to the abolition of the title “Senior Advocate” of Ghana.
Right to Sit at the Inner Bar -
The language of the Legal Practitioners Act is that ‘Silks’ have exclusive rights to sit in the inner bar or the front row or seats where no inner bar exists. At the English bar from where the system and /or idea was copied, the judiciary has traditionally given Queen’s Counsel a formal right to address the court before any other advocate.
However, such privileges are connected with sitting in a particular part of the court. Silks are entitled to sit in the front row or the inner bar. It is the modern opinion in England that this is a matter of professional etiquette rather than a serious advantage. It is really doubtful in England whether this right or privilege has, any longer, a practical significance.
In the Nigerian context, the provision is one that is imposed on the court by the statute vis - the Legal Practitioners Act. In practical terms, it is a matter of significance only to the observing public who as a consequence of the social paradigms of the Nigerian society may take this to mean that the Senior Advocate employed by their opponent has been placed in a superior position to influence the course of the day’s proceedings.
In real terms, particularly in Lagos State and other states where more advanced civil procedure rules are in operation, the judge in the full exercise of his power to manage proceedings in his court, is unlikely to be swayed in his decision making over a case he is presiding merely because one of the lawyers is sitting in the front row.
Before the creation of the rank of Senior Advocate, the fact of lawyers sitting in the front seat or row could be seen as a standard if not convenient means of recognising that a barrister was a senior member of the profession.
Nigerian critics of the rank of Senior Advocates have sought to identify this privilege of sitting in front as evidence of what they called “the discriminatory and unfair advantage enjoyed by Senior Advocates”. That point of view would seem not to be well founded.
It is important to remember that the inner bar refers to the select members of the profession who have distinguished themselves through advocacy in the superior courts. It is lawyers themselves who constitute the inner bar and not merely the physical existence of a row or some part in a court. The privilege of wearing silk gowns in addition goes a long way to add to a distinction not dependent on where they sit in the court.
The statute merely recognises what amounts to one of the founding ethics of the profession, i.e. the respect for seniority and distinction at the bar. There is therefore no basis upon which any critic can pin any accusation on the rank of Senior Advocate that by reason of sitting in the front row, there is discrimination or unfair practice against other members of the bar.
Right to Call a Case Out of Turn –
It has always been the common law tradition that the Judge presiding over any proceeding had the discretion to call any senior lawyer who had a case before him out of turn. That practice has always existed within the Nigerian legal system so much so that it seemed only natural that the Legal Practitioners Act since 1975 enshrined this practice by making it a matter of statutory duty to accord a Senior Advocate the “right to mention any motion in which he is appearing or any other cause or matter which is on the list for mention and not otherwise listed for hearing out of turn on the cause list”.
Given that the rank of Senior Advocate is an award for excellence in advocacy, it must be the case therefore that such an award is usually given to experienced advocates with number of years of practice at the Bar which already afforded them a good measure of preference in the here before mentioned practice of allowing seniors mention their cases out of turn. Instructively, the statute provides that it is the court that would accord the right to a senior Advocate to mention any motion in which he is appearing or any other cause or matter which is on the list for mention and not otherwise listed for hearing out of turn on the cause list, which in effect means that it is the court by statute and not the Senior Advocate on his own that is responsible for his case being called out of turn.
Critics have claimed that Senior Advocates abuse this provision in that after their cases have been mentioned out of turn, the Senior Advocate follow this privilege by insisting on having their matters go on for trial and by so doing giving an edge to a party in a trial for no other reason other than he has a Senior Advocate as a lawyer.
The language of the statute, i.e. the Legal Practitioners Act is clear and it provides that a senior advocate has the right to mention any motion in which he is appearing or any other cause or matter which is on the list for mention and not otherwise listed for hearing out of turn on the cause list. The only way therefore for a situation to arise that could amount to abuse of the privilege is for the Judge, the Senior Advocate and other lawyers in court to collectively decide to ignore the express wordings of the statute which provides clearly that this privilege is for calling any motion in which he is appearing or any other cause or matter which is on the list for mention and not otherwise listed for hearing out of turn on the cause list. Obviously, the normal practice should then be that after calling a case out of turn it would be stood down for hearing. There is therefore no basis for the criticism that allowing a Senior Advocate to call his case out of turn amounts to an unfair practice.
Reforms and the Way Forward
Recent criticism in Nigeria appears to be marked by high level of subjectivity not necessarily designed to assist the growth of the legal profession. It is however noteworthy that even in England from where we inherited the system, there has been sharp criticism and serious attempt to abolish the rank of Queen’s Counsel. Indeed, so pungent was the agitation that the appointment of Queen’s Counsel was suspended in 2003 and it was widely expected that the system would be abolished.
However, a considerable body of opinion succeeded in pushing forward convincingly the argument that the award of Queen’s Counsel is an independent indication of excellence valued by outsiders [the public]. As a result of the success of the defenders of the institution, the United Kingdom government switched focus from abolition to reform and in particular reform of the methods adopted in selecting awardees.
Ironically, that indeed ought to be the way forward in Nigeria. In the United Kingdom, before the push for reform, barristers were selected through a process of secret sounding of Judges and other establishments in legal figures which became a subject matter of much criticism, since it was arguably a possible source of improper government patronage given the fact that the Lord Chancellor who is a member of government had the final say.
In 2004, it was announced in England that the appointments of Queen’s Counsel will be resumed but future appointees would be chosen not by government but by a nine member panel chaired by a lay person. It is interesting to note that the requirement for the appointment of a Queen’s Counsel in England was not based on number of appearances in the House of Lords or was there seeming deliberate attempt to keep the number of awardees down in other to create artificial scarcity. Indeed, in July 2007, 175 new Queen’s Counsels were announced from a total application of 443 people.
The criticism most prevalent in Nigeria appears to be that the process of nominating and awarding is marked by a lack of transparency, favouritism and unfair practice. Evidently, there is no desire to scrap the institution. If reforms are put in place, it will ensure that it does not remain a “closed shop”.
Also, senior members of the Bar have been heard to complain openly that the status of a Senior Advocate in Nigeria is now hereditary and that the system as presently constituted is an affront to the right of any qualified lawyer to attain the rank. In passing, there have been allusions to the monopoly of the best briefs by Senior Advocates and the attendant charging of high fees.
There is no doubt that reform is the way forward as the option of abolition is by implication not desired by the vast majority of lawyers in Nigeria. Having experienced life at the bar between 1964 and 1975, during which the rank of Queen’s Counsel was abolished, it is possible to surmise that it must have been dissatisfaction with the fact of abolition that informed its re-introduction in 1975 with its new name Senior Advocate of Nigeria.
In other climes such as South Africa, Egypt and India for example where the institution of Queens Counsel metamorphosed to Senior Advocate, there is no requirement of number of cases argued in the Supreme Court before a candidate is eligible for such an appointment and such a requirement ought to be expunged. Its presence in the Nigerian system has contributed in no small measure to congestion at the Supreme Court. In a bid to acquire the requisite number of cases, potential applicants file appeals to the Supreme Court at will and by so doing obscure the majesty of what ought to be the final arbiter in the judicial process in this country. As at the date of this writing, that is May 2012, the Supreme Court is only able to attend to appeals ripe for hearing that were filed in 2004. Indeed the average time span of a contested civil appeal to the Supreme Court is 8 years.
The English method would appear to be more consistent with the desire of the right thinking members of the Nigerian Bar, i.e. a system of taking soundings from High Court judges in the jurisdiction where the prospective awardees practice law mainly and in the appellate court such as the Court of Appeal. Secondly, applicants for the award ought not to be less than 20 years at the bar and if they have been consistently in practice in those 20 years and have no blemish in their record; they should be conferred with the rank with no difficulty. The requirements of number of appearances at the Supreme Court, Court of Appeal etc. are not calculated to identify the best candidate since real advocacy is a function of the High Court and even the Magistrate Courts.
It can only be that those who continue to hang on to the idea of number of cases as a criteria for appointment intend to create artificial scarcity leading to high fees since they must be aware that the appellate courts are marked with incredible delays before the final determination of any suit. Such a reform will in one stroke solve the criticism that persons who have no real practice but are sons and daughters or connected with previous Senior Advocates or High Court Judges are being made Senior Advocates while better qualified lawyers are denied of the award for no obvious reasons.
It must be remembered that the rank of Senior Advocate of Nigeria is not an infallible guarantee of quality or expertise. That is only a perception of the uninformed public but we at the Bar know the truth but would prefer to retain the rank as part of our system as a measure and indication of excellence in our chosen profession.
In the final analysis, the extant restrictive practice of appointing as few as possible every year is self-defeating as it would only lead to an increase in the number of disgruntled critics and eventual disengagement of those who want the retention of the institution from the vast and overwhelming majority of lawyers who feel that the present system makes it impossible for them to ever attain the rank of Senior Advocate of Nigeria.
Article Credit: Thisdaylive