Khan v Mcnicholls

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Jamadar, J.A.
• Judgment Date: 12 January 2012
• Neutral Citation: TT 2012 CA 2
• Docket Number: Civil Appeal 153 of 2006
• Date: 12 January 2012

Court of Appeal

Mendonca, J.A.; Jamadar, J.A.; Narine, J.A.

Civil Appeal 153 of 2006

Khan

and

McNicholls

Appearances:

Mr. K. Scotland and Mr. D. Khan for the appellant.

Mr. N. Byan and Ms. Khan for the respondent.

Legal profession - Code of Ethics — Attire of attorney-at-law appearing before the court.

Introduction

Jamadar, J.A.

1 On the 21st January, 2005 Israel B. Khan, senior counsel [Mr. Khan was admitted to the Bar on the 19th October, 1979 and awarded Silk on the 5th December, 2000.], and head of Justitia Omnibus Chambers in Port of Spain, entered the Coroner's Court in the Magisterial District of St. George West dressed in a Nehru suit. The Coroner was the then Chief Magistrate, Mr. Sherman Mc Nicholls, and the inquest concerned the death of one Galene Bonadie.

2 Mr. Khan had been retained to watch and protect the interests of four police constables whose conduct was under investigation in relation to the said death. The matter was on-going and Mr. Khan had appeared on several occasions prior to the 21st [In fact he had previously appeared on the 3rd, 4th, 5th, 6th, 10th, 11th, 12th, 17th and 19th of January, 2005.] dressed in a jacket and tie and had enjoyed the usual right of audience afforded to attorneys-at-law representing clients or looking after their interests in the Magistrate's Court.

3 On the 21st Mr. Khan attended the Court hearing dressed in his Nehru suit. It was a formal cut Nehru suit (with a closed and buttoned band collar) [The collar of the Nehru jacket blends the collar of the achkan (the royal Court dress of some Indian nobles) – “Band Gale Ka Coat” (“Closed Neck Coat”), with the Western style suit jacket,], with padded shoulders, fully lined with an internal breast plate and matching tailored trousers. In colour, it was ash to dark grey with a hint of moss green. Indeed, the uncontroverted opinion evidence of Mr. Ragoonath Chaboo, the master tailor (of some forty-six years experience) who made the suit, was that “the Nehru jacket though of a different style is equivalent in terms of formality and elegance to the western style business jacket.” Mr. Khan was wearing not just a Nehru jacket, but a complete Nehru suit.

4 To Mr. Khan's surprise and ‘severe embarrassment’ [Paragraph 8 of Mr. Khan's affidavit] he was denied the right of audience in the Court because he was dressed in his Nehru suit. The Coroner explained his position and what had transpired in Court as follows:

4

On the 21st January, 2005, I was sitting as the Coroner in the inquest into the killing of Galene Bonadine. On entering the Court on the said date my attention was drawn [to] the applicant and his attire. Consequently I informed the applicant that he would not have a right of audience dressed as he was in a Nehru Suit. I further informed the applicant that he had to change the Nehru Suit to the traditional Jacket and tie. The applicant then left the Court. Sometime later the applicant returned dressed in a jacket and tie and was allowed to address the Court [Paragraph 4 of the Chief Magistrate's affidavit].

5 In fact there is general agreement on the essential facts surrounding this incident. Following the hearing on the 21st, Mr. Khan, on the 27th January, 2005, wrote to the Chief Magistrate and Coroner requesting him to reconsider and rescind his decision that he must wear a jacket and tie in order to enjoy any right of audience before the Chief Magistrate, and in particular imploring him to recognize the Nehru suit as appropriate wear for the Magistrate's Court.

6 The relevant portions of Mr. Khan's letter of the 27th January, 2005 were as follows:

Re: Your ban on the wearing an outfit (Nehru-collar suit) without a tie in your Court

You will recall that on Friday 21st January, 2005 I was in attendance at the Eighth Magistrate Court for the Inquest touching the death of Galene Bonadie when you made a verbal ruling that I must wear a tie in order to have the right of audience in your Court.

I attempted to persuade you that I was properly dressed and if you insist that I cannot wear a Nehru-collar suit in your Court you will be depriving me of my cultural heritage. I pointed out that there is no practice direction stating that I must wear a tie at the Magistrate's Court. You sought the assistance from Mr. Desmond Allum S.C., President of the Criminal Bar Association (who was present in your Court) and he indicated to you that Chief Justice Bernard had given a Practice Direction vis a vis Code of Dress and you are entitled to regulate attorneys' mode of dress in your Court. In addition to that, the Express Newspaper carried a comment from the Chief Justice Sharma which supported your ban on the Nehru-collar suit.

I wish to bring to your attention the Practice Direction of Chief Justice Bernard; it is dated 8th December 1986. Please find a copy of same attached to this missive.

It should be noted that the Practice Direction is for the High Court and not the Magistrate's Court: it should be especially noted that for the Chamber and Master's Court all that the Practice Direction states is that “the practitioner should be in sober attire such as for example black, grey, blue, white, brown”. Nowhere is it stated that a practitioner must wear a tie.

Be that as it may, it is submitted that Rule 40 Part A of the Code of Ethics of the Legal Profession Act is more on point for the mode of dress as it relates to attorneys-at-law attending the Magistrate's Court. Rule 40 aforementioned comes under the rubric: “In Relation to the Courts and the Administration of Justice”. It states: “An attorney-at-law appearing before the Court shall at all times be attired in such a manner as prescribed or agreed by the proper authorities and as befits the dignity of the Court”.

Sir, my research indicates that there is no code of dress prescribed or agreed upon for attorneys appearing in the Magistrate's Court. Thus applying rule 40 of the lawyer's Code of Ethics mutatis mutandis, the mode of dress for the Magistrate's Court is that attorneys must be attired in such a manner as “befits the dignity of the Court”. It is not necessary to wear a tie in order for attire to befit the dignity of the Court.

I am sure that Your Honour will readily agree with me that the Nehru-collar suit is an elegant, sophisticated and dignified attire.

As a point of interest it is instructive to inform you that the Nehru suit was one element of Indian dress that penetrated western dress. This style of suit was single breasted and slightly fitted with a band collar. It was based on a traditional Indian jacket and named after Prime Minister Jawaharlal Nehru because he commonly wore this cultural Indian garment. This suit was worn as an alternative to the European suit.

Your Honour, in giving your ruling (ban on the Nehru suit) you made it quite clear that you do not wish to set a precedent by allowing me the right to audience in an attire other than the traditional European jacket and tie.

The traditional European jacket and tie is the formal apparel of our former slave masters and colonizers. The Nehru suit is really an adaptation of massa's formal wear: it is a compromise between an Indian and European formal wear.

I wish to have the option of exercising the right to wear something that reminds me from whence I came so that I can know where I am going. Sir, leave me with a little remnant of my heritage.

I therefore implore you to rescind the order that I must wear a tie in order to have the right of audience in your Court: And if you are not minded to accede to my request, you will leave me with no alternative but to file a Constitutional Motion in the High Court for a declaration that the Nehru suit befits the dignity of the Magistrate's Court and it is not compulsory for an attorney to wear a tie in order to have right of audience.

7 Clearly Mr. Khan felt strongly about the issue. And did so based both on law and also on a critical interpretation of cultural imperialism, associated with the historical experience of colonialism generally and British colonialism in particular and its negative effects on the cultural identity of colonized peoples. [His correspondence, affidavits and submissions are replete with such references, in support of his arguments for freedom of cultural expression and against ‘the closed mindset’ he ascribed to the Chief Magistrate. For example, his citations included the recent West Indian publication ‘The Thought of New World; The Quest for Decolonisation’. (Ian Randle Publications, 2010). Clearly Mr. Khan was advocating the need for Caribbean people to ‘emancipate themselves’, popularized by Robert (Bob) Nesta Marley in his Redemption Song: “Emancipate yourselves from mental slavery, none but ourselves can free our minds” (and note that as far back as 1937, in a speech in Menelik Hall, Nova Scotia, Canada, Marcus Mosiah Garvey had said in relation to his call for colonized peoples to establish a new sense of self: “We are going to emancipate ourselves from mental slavery because whilst others might free the body (in reference to chattel slavery), none but ourselves can free the mind”). This call to and longing for true freedom has been in the hearts and minds and souls of colonized peoples for generations, and Mr. Khan's actions are but one more example of this existential thrust.]

8 The Chief Magistrate responded on the 2nd February, 2005 in writing, as follows:

My direction to you on Friday 21st January, 2005 on the question of dress was in keeping with the well-established practice in the Magistrates' Court, that is, traditional jacket and tie for men.

In light of Rule 40 Part A of the Code of Ethics of the Legal Profession Act No. 21 of 1986 which you referred to in your letter, may I respectfully suggest that you seek an audience with the Law Association with a view to approaching the Honourable Chief Justice for a resolution of this matter.

9 Mr....