BASL should not interfere in the appointment of judges – Hemantha Warnakulasuriya, PC
Posted on March 2nd, 2017
Courtesy The Island
March 2, 2017, 9:28 pm
The standoff between the Judicial Services Association and the Bar Association of Sri Lanka over the appointment of Ramanathan Kannan as a High Court judge still remains unresolved with the BASL not taking any action to have the appointment reversed as requested by the JSA. The most serious allegation against the new High Court judge is that he had on an earlier occasion, been recommended for appointment to the judiciary by an unnamed political party. In this interview, The Island staffer C. A. Chandraprema speaks to one of the most senior members of the private bar President’s Counsel Hemantha Warnakulasuriya about this unprecedented situation that has arisen within the justice system.
Q. There is this still unresolved controversy over the appointment of Mr Ramanathan Kannan as a High Court judge. The President claims that the appointment has been made according to the existing provisions of the constitution with the recommendation of the Judicial Services Commission and the concurrence of the Attorney General. But there are serious questions about this appointment, one of them being the involvement of the private bar in making this appointment.
A. Neither the constitution of the country nor the constitution of the BASL gives the Bar Association the power to be involved in making such appointments. The only instance when the Bar Association appealed to the executive was over the appointment of President’s Counsel. PCs are appointed by the president without reference to anyone. When I was the Secretary of the BASL, a very junior counsel with about 18 years of practice was appointed as a PC and the BASL passed a resolution requesting the President to consider the criteria of at least 20 years of practice when appointing PCs and to consult the President of the BASL before making such appointments. But we have never intervened in the appointment of judges. No President consulted the Bar Association and the private bar interfering with judicial appointments was unheard of.
Q. However in this instance, the President of the BASL did intervene to get Ramanathan Kannan appointed.
A. Geoffrey Alagaratnam the President of the BASL has made this recommendation to the President. The President stated at the National Law Conference that he was given the recommendation in writing. When the BASL Executive Committee wanted to examine the letter written by Alagaratnam, to the President, he is supposed to have said that the letter from the Batticaloa Bar Association had been forwarded to the Presidential Secretariat with a covering letter. But even a copy of this letter was not in the file. The President also said that he had initially declined to appoint Kannan and a reply was sent to the BASL to that effect. Alagaratnam said there was no such letter but the Assistant Secretary of the BASL said that there was an acknowledgement that a letter had been received from the Presidential Secretariat in the inward register but this letter is now missing. The letter to the President was written by the BASL President without the Secretary and the others not knowing about it. If this was such a straight forward matter, why are these letters being concealed from the membership? Even if there was the problem that there are no Tamil judges or Tamil speaking judges, then that is a matter that could have been gone into properly and applications called from all over the country. Why was a candidate chosen only from Batticaloa? There are eminent Tamil speaking lawyers in Hatton and other places, who may like to serve at least for a short time as a High Court judge.
Q. Kannan is obviously being backed by an influential lobby.
A. The question is why is Lal Wijenayake supporting this candidate? I am told that Ramanathan Kannan’s father was a dentist and an important person in the Samasamaja trade unions and Lal Wijenayake was very close to him. That is why he is supporting this appointment. Lal Wijenayeke also says that only the President of the BASL should have the sole right to nominate judges because if it is discussed in the Executive Committee or the Bar Council that would amount to canvassing and campaigning for appointment. These are the very people who campaigned against Mahinda Rajapaksa for appointing judges, saying that such decisions must be made by a Constitutional Council. They don’t want that power wielded by the executive of the country who is elected by the people, but they want the president of the BASL to wield that power without referring to any of the decision making bodies in the BASL. Obviously they are only interested in getting judges appointed so that they can get judgments in their favour.
Q. Is there any justification to the claim that there is no suitable Tamil speaking person of sufficient seniority in the judicial service or the AG’s Department to take up this position?
A. The senior-most judge who should have been promoted was D. L. A. Manaf.
Q. A certain website published an article stating that Judge Manaf had not been considered because of an alleged prior wrongdoing on his part. Firstly, he is supposed to have served on the Council of the Eastern University without the permission of the Judicial Services Commission and while he was there, an employee had been sacked and Judge Manaf had then heard the case against the University filed by this employee.
A. I am told that Manaf was never on the Eastern University Council. Furthermore, if an employee is sacked, he has to go to the Labour Tribunal, not to the District Court. This allegation against Manaf is an absolute lie. They can say anything against any judge and get away with it because the judges cannot defend themselves in the media or any other public forum. These falsehoods are being propagated by people who claim to be champions of democracy. They want the word to go around the entire judicial service “Look here, I am the person who appointed this judge, I can do anything with the President and the CJ, so when I appear before you, you had better heed my submissions.”
Q. Mr Alagaratnam now has a High Court judge who is beholden to him.
A. Absolutely. H. W. Jayewardene was a good lawyer. A lot of his juniors joined the judiciary. They were highly qualified people but non-UNP lawyers were very critical of those appointments because H. W. Jayewardene used to appear before them in court. How can that be correct? But HW was not making those recommendations as the President of the BASL. He was doing it as the President’s brother. But here the President of the BASL has done something wrong and people are trying to defend him. A former President of the BASL Upali Gunaratne, PC, said at the Bar Council meeting last Saturday that the President of the BASL cannot act independently. That is shown by the fact that the first address made by the President of the BASL at the Convocation should be written and approved by the Executive Committee. So the question is whether the President of the BASL can recommend judges without the knowledge of the Executive Committee? People come to the Bar Council and discuss malfunctioning toilets but not these important appointments. Furthermore, the President of the BASL has deceived the President and made him believe that the BASL had wanted this appointment made. Amal Randeniya the Secretary was shocked. He said they had not made any such recommendation. Normally it’s the Secretary who writes the official letters of the BASL, not the President.
Q. The Judicial Services Association claims that the Minister of Justice had told them that this Mr Ramanathan Kannan had on an earlier occasion been recommended for appointment as a High Court judge by a certain political party.
A. I asked Mr Wijedasa Rajapaksa and he confirmed that a political party had contacted him but that he declined to make the recommendation. Sources from the Presidential Secretariat said that Geoffrey Alagaratnam had met the President twice to canvass for Kannan’s appointment not with members of the BASL Executive Committee but with some outsiders. This was denied by Alagaratnam at the last Executive Committee meeting where he had said that he did not meet the President and that His Excellency may have been mistaken about his presence! It is this same group of people who are involved in appointing judges and are also having judges who don’t toe the line attacked through certain websites.
Q. The BASL is a highly politicised body. At one point the President of the BASL was a sitting UNP parliamentarian. After that the President of the BASL was appointed Chairman of the BOI by a UNP government. Where will things end up if a body like this is given the power to recommended the appointment of judges?
A. Upul Jayasuriya is my good friend and I fully endorse the role he played during the impeachment, (of Shirani Bandaranayake) but I told him that it was not correct for him to accept that appointment as the President of the BASL. The point however is that neither Wijedasa Rajapaksa nor Upul Jayasuriya got involved in the appointment of judges.
Q. The first draft of the 19th Amendment had a provision saying that the Constitutional Council should consult the BASL when appointing judges to the superior courts. This was shouted down at that time, but the same proposal has resurfaced in the Constitutional Council’s Subcommittee report on the Judiciary. The same group that promoted Ramanathan Kannan is also promoting the constitution.
A. You can see that. They want to intimidate the judges and get them to rule in their favour and they attack those who do not fall in line, through various websites. There was a news item that said that a High Court judge in Ratnapura had assaulted a stenographer and had broken her collar bone. Then this mafia had got worked up about it and told the BASL President. Alagaratnam should have first consulted the Ratnapura Bar Association and found out what it was all about. But he wrote a letter to the Chief Justice and the CJ got upset and transferred this High Court judge to Moneragala pending inquiry. Then the Ratnapura bar made representations about this matter and ultimately, the police investigation found that the supposed victim had been lying. So look at the damage that was done by the president of the BASL writing a letter to the CJ without consulting anybody. The other example is Kanishka Wijeratne the Nugegoda Magistrate. There was a news item saying that he had given preferential treatment to another magistrate Tilina Gamage who was granted bail over the baby elephant affair. The story was that he had taken Gamage in the judge’s lift to his chambers and granted him bail. Once again the BASL President wrote a letter to the CJ. What saved Kanishka Wijeratne was that he had installed CCTV cameras all over the place including his chambers. On examining the footage, the JSC was able to ascertain that the news reports were false. Furthermore there is only one lift in the courts complex without a special lift for judges. Then there was the complaint that Shiran Gunaratne the High Court Judge made to the effect that his telephone has been tapped, I asked Geoffrey Alagaratnam what he is going to do about this but I did not get a proper reply. I told Alagaratnam that he should go to see Shiran Gunaratne and find out whether this was true or not. He said he can’t do that. When I wrote about this matter to the Executive Committee of the BASL, he had told them to ask me whether I had a personal interest in this matter.
Q. The President of the Batticaloa Bar Association has recommended one of his colleagues for appointment to the High Court and now he has a judge in Jaffna who is beholden to him.
A. There was an unusual number of lawyers from Batticaloa at the BASL meeting last Saturday to defend Alagaratnam. I was totally against the impeachment of Shirani Bandaranayake and I am totally against the appointment of Kannan as well
Q. The Judicial Services Commission also has to be even handed. In January this year, a newly recruited magistrate one D. M. A. I. Dissanayake was sacked on the allegation that he was politically involved. Now however there is a High Court Judge whom the Minister of Justice himself says was recommended by a political party. It was the same NGO crowd including Ranjith Keerthi Tennakoon of CAFFE who is fighting on behalf of Kannan that was agitating for Dissanayake’s removal. How can the JSC be justified in applying different standards to different individuals?
A. At the time the appointment was made, the JSC was obviously not aware of these things about Kannan that have subsequently come to light. I noticed that the mafia that has been promoting Kannan has been speaking of a similar appointment that was made when Sarath N.Silva was the CJ. That was in 2007 when the High Court judge in Jaffna retired and no other Tamil speaking judge was willing to go there out of fear. One of the things that the LTTE wanted was for the courts to cease functioning so that there was no state apparatus operating in the North. Then Sarath N Silva went to Jaffna, and appointed S. Paramarajah a highly respected senior lawyer as a High Court judge. The Jaffna Bar Association and The BASL was not informed that such an appointment was being made. Paramarajah was posted to the Eastern province and the Eastern province HC judge was posted to the North. That was a special appointment made in difficult circumstances by the JSC so as to keep the Jaffna courts functioning. You have to look at all this from the point of view of the members of the judicial service. Those who join the service as Magistrates serve in various difficult areas and gradually get promoted. Their ultimate aim is to reach the superior courts, after which they retire. That is their chosen career path. To deprive any one of them of a justly earned promotion by appointing an outsider is a crime.