Sarath Wjesinghe a former Secretary – Bar Association and a former Administrator Legal Aid Commission

Appointment of a High Court Judge from the Unofficial Bar

The thorny issue on the appointment of the High Court judge from the private Bar is brewing fast at a rapid phase, with conflicting statements, from various sources. Justice R Kandiah Kannan is appointed from the Batticaloe Private Bar allegedly on the recommendations of the Bar Association, which is the only statutory body of Attorneys- at – law in Sri Lanka established in 1974 with the merger of then professions Advocates and Proctors creating a powerful professional body of renamed as Attorneys- at – Law, which catalysed and initiated  the formation of the Organization of Professionals which is the professional body of the majority of  recognised professional associations  in Sri Lanka. The powers of appointment of High court Judges outside the accepted and legal procedure is laid down in the Constitution to be enforced on special circumstances strictly on the advice of the Judicial Service Commission established under the same chapter. It is a mandatory requirement that the JSC should advice the President on the appointment on their own initiative and merits of the candidates free from influence or interference of political or other considerations. It is not clear on what basis the JSC could select candidates from the service, which is the normal procedure.

The Law

Article 111(1)    

There shall be a High Court of Sri Lanka, which shall exercise such jurisdiction and powers as Parliament may by law vest or ordain. ] (2) The Judges of the High Court shall be appointed by the President of the Republic by warrant under his hand and be removable and be subject to disciplinary control by the President on the recommendation of the Judicial Service Commission established under this Chapter. (3) Subject to the provisions of paragraph (2) of this Article, Parliament may by law provide for matters relating to the retirement of the Judge of such High Court. It is abundantly clear that the President has the mandate to make the appointment at his wish and will.

Article 111(A) Commissioners of the High Court.

Where the Minister in charge of the subject of Justice represents to the President that it is expedient that the number of the Judges exercising the jurisdiction and powers of the High Court in any judicial zone should be temporarily increased the President may, by warrant, appoint one or more Commissioners of the High Court to exercise the jurisdiction and powers of the High Court within such judicial zone as is specified in the warrant of appointment of such Commissioner of the High Court.” This procedure permits Ministerial intervention unlike the previous Article in which the it  is not imperative, but always complementary in the  practice of good governance.

112(1) the Judicial Service Commission

There shall be a Judicial Commission which shall consist of the Chief Justice, who shall be the Chairman, and two other judges of the Supreme Court appointment of the President of the Republic.

It is clear that the President has power to appoint High Court Judges at his will and following conventions and practices which are discretionary.

A Constitutional Requirement?

Though not a constitutional requirement, it is generally the practice and the convention to consult the Minister of Justice and the Bar Association as a matter for safety, courtesy and guidance to the President in such appointments on exceptional situations. Whether this procedure was followed previously is a mot issue though it is not in the public domain, it is obvious and imperative that the Judicial Service Commission shall recommend with   the Attorney General is nod” as the advisor of the State and the President. Then how was the appointment initiated?, and recommended to the Judicial Service Commission, as JSC can recommend the appointment to the President only from and among 66 serving judges awaiting for promotions, who apparently have shown the strong protest by refusing to take part as returning officers at the BASL election which is postponed     indefinitely which is considered to be a matter of serious nature. By Convention the Judges act as returning officers of BASL elections and the AG on the apex body in conducting and supervising election procedure.

President made it clear in the presence of the President BASL, and the Chief Justice at a function that Bar Association has made a request, when the Minister of Justice denies of any knowledge or involvement on any such appointment. President’s position is substantiated by a statement by a group of lawyers responsible for the Regime Change, using the phrase Upon a nomination by the president BASL, and not from the Executive body, recommendation was made” which is unconstitutional and irregular as the President BASL is bound to act strictly on the advice and directions of the Executive Body alone. He cannot take arbitrary decisions which are illegal and unconstitutional.

Issue has become still complicated by the statements of the former President and former Foreign Minister alleging involvement of a political party in the recommendation process requesting the President to make the appointment under his powers and prerogative, which is rarely used. Making matters worse the Secretary of the Bar Association has denied any involvement or connection by the Secretary as the Chief Executive officer. Bar Council which is the Executive Body of the Bar Association deciding on all issues pertaining to the Association. Neither the President of the Bar Association nor the Social and active groups except  a pro government group of lawyers have made any comments or statements, on this thorny issue of paramount importance to the independence of Judiciary.   Dead silence by the social groups’ active in the campaign of good governance and independence of the Judiciary is raising eyebrows of the public awaiting action on the issue close their hearts of adjudication of justice and maintenance   of Rule of Law.

Logically and constitutionally citizen is bound to believe the convincing statement made by the President on the issue and it is clear that the Bar Association should not dabble in politics or appointment of judges. Bar Association had an ugly history in dabbling in politics and the citizen still remembers by the BASL in the role played in the Regime Change process, for which the President of BASL was amply compensated with a plum office, and using USA aid by allowing them to function in the BASL premises and using data which are confined to the Lawyers alone. The Hulftsdrop Gossip” is that the current Leader BASL is looking for a plump diplomatic appointment in a powerful western state, by killing two birds from one stone.  Judges are appointed from and among the official and unofficial Bar with strict procedures adopted by the JSC alone with no political or any kind of interference. Head of the State and the Executive is expected to perform the sacred duty of the appointment of judges with great care, and impartiality appointing fit and proper learned and respected in the profession.

First Appointment of this nature based on Article 111(A)

The President made an appointment of appointing a retiring High Court Judge under Warrant for a specified period, despite protests from the Bar Association, after she discharged Hon Ravi Karunanayaka from the charges on a technical ground on the controversial case involving millions of foreign dollars connected to disgraced Raj Rajartnam –   a USA ballooner national of Sri Lankan origin. The current appointment is the second appointment under the first part of the Article, which is rarely used on extremely circumstances. Protest from the Bar was not considered seriously.

Judges unhappy

Judicial Service Association which is the only body of the serving Judges have shown the protest on the appointment for reasons left to themselves and as a result the BASL election is postponed indefinitely for want of returning officers, which is a serious matter that may ignite further unless immediate steps are taken to remedy as there appear to be no constitutional remedy on an appointment made by the President despite technical defeats. It appears that the Judicial Officers Association will stick to their guns, with displeasure and unpleasantness growing among the minor judiciary, depending on job security and due promotions they toil for during their service of employment.

A Noble Profession/Way forward

Legal Profession is one of the noblest professions depending on the good will and reputation with the society maintaining highest integrity of individual members and the association collectively. President of the Bar Association is the Leader of the Unofficial Bar when the Attorney General is the Leader of the Official Bar all of whom are selected by and among the lawyers of high repute and professional standings, who are expected to be whiter than white in their personal and professional conduct before the public, judges and litigants, where the integrity is judged by the conduct of the member of the profession. In this instance we are in the dark until the tip of the ice bag is wide open by concerned parties in high office for the benefit of the citizen waiting for justice, fair play and remedies for laws delays and justice they are clamouring for with defective systems and want of facilities and learned judges and judicial system on the tract. Leader of the Bar should be responsive, responsible and live up to the expectations of the Nation, Judiciary and the members of the profession elected the leader with the highest expectations expecting  no shady deeds or deals with ulterior motives or personal gains by acting arbitrarily and independently when there are clear  guidelines to follow the  due process. As all those involved in this issue are members of the legal profession, apart from the President holding sole authority on appointments members of the Bar and the citizen expects the parties concerned to shed light to the public, and we as a part of the concerned citizens request the NGOs and Active social groups demanding good governance to take the campaign over in this matter of public interest and importance in promoting independence of judiciary, rule of law and good governance.

Writer could be contacted on sarath7@hotmail.co.u/Views expressed are that of the Author.