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‘Chief Justice acted within the law’

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Caswell Tlali

MASERU — The conferment of the King’s Counsel title on some lawyers this month has once again sparked controversy in the legal fraternity.
Some lawyers have questioned the criteria used to give the title while others have alleged that some of the recipients do not deserve the honour.
Some say the chief justice, who recommends the recipients of the honour to the King, is discriminating against some senior lawyers.
To get clarity on the issue our Deputy News Editor, Caswell Tlali, spoke to the Law Society of Lesotho president Monaheng Rasekoai.
Below are the excerpts from the interview.

Sunday Express (SE): Some lawyers say the appointment of King’s Counsel is not transparent in light of the fact that it is the prerogative of the Chief Justice to recommend whoever he deems fit. This, they say, leaves room for abuse of Chief Justice’s powers. What is your opinion on this?
Rasekoai: I believe the real issue for us to discuss is whether we should opt for legislative reform which will be inclusive of all the stakeholders in the legal profession instead of criticising the lawthat was promulgated by parliament in its own wisdom two decades ago (1983).
I am wary about any insinuation to the effect that His Lordship the Chief Justice is abusive of his statutorily entrenched role in his capacity as the most senior judge of the High Court.
We as the Law Society have strived very hard to draw a line between institutional imperatives and personality imperatives.
Let us move away from casting aspersions on individuals who hold positions in the public policy environment and rather concentrate on policy reforms which will guarantee transparency and inclusivity.
I believe no fault can be attributed to the Chief Justice, if anything, fault should be placed on us as the members of the profession for having made no effort to engage in efforts of facilitating legislative reform because we have both the capacity and the duty to act as such.
The ball is clearly in our capable hands as the profession.
SE: There are suggestions that the appointment of King’s Counsel should be subject to public scrutiny because members of the public know and understand advocates who serve them better than the ChiefJustice who meets them only when they address him in court.
Do you agree with this?
Rasekoai: I tend to hold a different view from the proposition that is being made here. The act of subjecting the conferment of the status of King’s Counsel to “public scrutiny” would be fatal to the objective of these awards.
This is not a politically motivated award, but rather, it is a “professional award” which in principle is supposed to be conferred upon lawyers by the legal profession from all its constituencies.
If the intention was to make it a politically motivated award all that we would need to do would be to promulgate a law which makes it mandatory for the members of the public to nominate and appoint a lawyer whom they think has best served them in courts of law.
That would clearly spark a lot of challenges because the other professions will demand the same courtesy.
The conferment of the status of King’s Counsel is a creation of the Legal Practitioner’s Act which exclusively regulates legal practice in all its spheres, in particular, it regulates private practice.
If the profession decides to compromise its autonomy by subjecting the awards to public scrutiny, then it will be a debate for another day and forum.
SE: In some jurisdictions, i.e. British Colombia, India and South Africa, some lawyers are challenging the existence of the Silk saying it is irrelevant to today’s needs of the legal profession and that itpromotes unfair competition. What can you say about the Silk in Lesotho?
Rasekoai: It is by all means necessary and the Law Society shall strongly guard against its abolishment. I do not think that the conferment of the status of King’s Counsel proposes a system of
awarding any professional who attained an advanced skill in forensic work in his or her profession a status of seniority.
Andneither do I think it promotes any element of unfair competition.
If conferring honours envisaged in terms of the Legal Practitioner’s Act does include awarding the seniority status or an element of unfair competition to the legal profession, I am afraid, His Majesty the King will be responsible for conferring honours of seniority and unfair competition to members of the military, police service and even civilians who were honoured on his birthday to mention but a few.
We have to look at this as a reflection of lawyers’ “good quality work”.
I am fully aware that some people argue that the institution of “King’s Counsel” should not be retained because the said lawyers“intimidate” judges when advancing arguments in court.
At times it becomes difficult for one to draw a line between “intimidation” and “persuasion”. Can we safely say that the institution was meant to promote unfair competition and to intimidate judges?
The institution of silk promotes the culture of hard work. It inspires some of us young advocates and instills the culture of hard work within the legal practitioners and the profession.
The reward of hard work is more work and the reward of “good quality work” is respect from fellow countrymen.
The respect from fellow countrymen is an honour. An honour is earned.
We as the law society strongly guard against anything that will distort the spirit and objective which the institution serves.
SE: There is confusion in the legal practice about the King’s Counsel title and all matters surrounding it. What do you think can be a lasting solution — that will be fair to all — to this problem?
Rasekoai: I think the starting point is for the legal profession to engage in efforts to revise the methodology and criteria used in the conferment of such an award. It must, as a matter of necessity, be inclusive of all the relevant stakeholders in the legal profession.
The academia, the law society, the Bench, the attorney general and perhaps even he minister of justice should be incorporated in thenomination process in order accommodate diversity of opinion.
The law society is working on a bill at present which is geared towards proposing major reforms in the legal profession.
Over the years it became a painful reality that members began to yearn to be conferred with the status of King’s Counsel purely for self-aggrandisement and for prestige.
That totally distorted the spirit of the award and was clearly wrong because it built on personal egos of personalities not the profession.
Such a status is earned! The other hotly contested issue is whether the said award should beconferred exclusively upon practicing lawyers only completely ostracising members of the profession who are in the academia, public institutions and some other non-governmental organisations.
Secondly — whether the title should be conferred upon any lawyer regardless of whether such a lawyer is an attorney or an advocate.
Thirdly — whether the conferment is supposed to be made to the members of the public bar with the exception of the attorney general who is automatically King’s Counsel by virtue of his position as the First Crown Counsel.
These are policy issues which must be debated by the profession in a proper forum especially with the advent of the proposed bill which isunderway. I further believe that we must do away with some sense of elitism amongst ourselves as lawyers.
Neither advocates nor attorneys are better placed in the profession.
We are all role players actively involved in the process of moulding the wheel of justice. The creation of barriers which are driven and inspired by trivialities will incapacitate us.
We need to also devise some continuing legal training mechanism that will enhance the standards of the legal profession.

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