by Shamindra Ferdinando Courtesy The Island

Former Law Professor G.L. Peiris yesterday said that the yahapalana government owed an explanation to the public regarding the controversial appointment of Ramanathan Kannan as a High Court judge.

Kannan functions as HC judge of Civil Appellate Court, Jaffna. Matale-born Kannan of the private bar in Batticaloa received his appointment early this month. Kannan had served the Attorney General’s Department for a decade before moving to Batticaloa, where he enjoyed a lucrative practice.

Prof. Peiris pointed out that no less a person than President Maithripala Sirisena on Feb 15 had confirmed that a delegation of the Bar Association of Sri Lanka (BASL) headed by its President Geoffrey Alagaratnam, PC urged him to make the appointment.

The former External Affairs Minister pointed out that the BASL had absolutely no role whatsoever in respect of such an appointment made outside the deserving membership of the Judicial Service Association (JSA).

A simmering dispute has erupted ahead of BASL elections scheduled for next week.

“The BASL’s role in this regard is not only indefensible but also unconstitutional,” Prof. Peiris told The Island. Responding to a query, Prof Peiris said: “In fact, Article 111 (2) of the Constitution is explicit about the role the Judicial Service Commission (JSC) as well as that of the President in respect of appointment of judges of the High Court. There is absolutely no scope for BASL in this regard.”

Prof. Peiris said President Sirisena couldn’t have made the revelation at a better place than the inauguration of the National Law Week 2017 at the Galle Face Hotel.

In accordance with the Constitution, the President could appoint judges of the High Court on the recommendations of the JSC made in consultation with the Attorney General, Prof. Peiris said. The High Court judges were subject to the President’s disciplinary control also on the recommendation of the JSC, Prof. Peiris said, asserting that the BASL couldn’t justify its role in what the former minister called a sordid affair.

President Maithripala Sirisena had underscored the BASL’s role in Kannan’s appointment, Prof. Peiris said, appreciating the President’s decision to come clean on the vexed matter.

Having discussed matters pertaining to the judiciary, the President explained the circumstances leading to the contentious appointment. Having regretted that his statement could hurt some, President said that he was being accused of wrongdoing in respect of the appointment of the High Court judge. President Sirisena said some institutions in the judicial field had made representations to him whereas the social media, too, dealt with the issue, extensively. Recalling that Chief Justice K. Sripavan and he assumed office at the same time in January 2015, President Sirisena said that so far 21 judges had received appointments.

The President declared that he had rejected BASL request for the High Court appointment though it was made against the backdrop of dearth of Tamil speaking judges. The President said that he instructed Presidential Secretary to inform the BASL regarding his decision. The President reiterated that unilateral decisions wouldn’t be taken under any circumstances on the basis of requests made by organizations, such as the BASL or individuals.

The gathering was told how a BASL delegation led by its President had met President Sirisena soon after he turned down the organisation’s request. The President quoted the delegation as having urged him not to disregard the request made on behalf of the BASL. The President further said that the delegation had wanted him somehow to make the appointment. Acknowledging that he had given in to the BASL plea, the President said that the appointment was made following consultations with the highest institutions dealing with such matters.

Denying his personal responsibility, the President acknowledged that criticism directed at the recent appointment was justified. The criticism should be examined against the backdrop of the new High Court judge receiving an appointment in the area he served as a lawyer.

Reiterating his commitment to transparency, President Sirisena said that the 19th Amendment to the Constitution deprived him of some executive powers. Pointing out that those powers had been vested in parliament as well as independent commissions, President Sirisena assured that the remaining executive powers wouldn’t be abused.

Admitting that he, too, had been severely criticized over the appointment, President Sirisena said that he was determined that judicial matters should be dealt honestly in a transparent manner.

Prof. Peiris explained that the BASL comprising practicing lawyers in private bar had been constitutionally prevented in intervening in the matter of appointments as well as disciplinary control of judges.

The former Minister suggested that perhaps the President should review the matter again.

Meanwhile, civil society activist Rajith Keerthi Tennakoon yesterday told The Island that yahapalana rulers couldn’t afford to cause such crisis in the judiciary. Alleging that the previous Rajapaksa administration had caused irreparable damage to the judiciary, Tennakoon said that it would be the responsibility of the Chief Justice, Attorney General, President of BASL and the JSC to explain the circumstances under which the High Court appointment was made. Tennakoon emphasized that the above mentioned officials couldn’t ignore President Sirisena’s explosive revelation.

Tennakoon, in a statement issued on Feb 12, 2017 said the BASL President had written to President on behalf of attorney-at-law Kannan and the said appointment was made in consultation/recommendation of the CJ, AG and JSC.

Legal sources pointed out that President Sirisena’s statement made three days after Tennakoon’s press release had sent shock waves through the judiciary. Sources said that obviously those who had pushed for the appointment never envisaged the President discussing the matter at the inauguration of the National Law Week.