The Ramanathan Kannan affair: Showdown over Alagaratnam’s final letter to Chief Justice New BASL President holds out hope of a solution BASL and JSA to meet separately tomorrow
Posted on April 1st, 2017
By C. A. Chandraprema Courtesy The Island Courtesy The Island
The controversy over appointing Ramanathan Kannan, a member of the private bar from Batticlaoa, as a High Court judge over the heads of many senior District Court judges and officials of the Attorney General’s Department, is now coming to a head with an emergency general meeting of the Judicial Services Association being called for tomorrow. According to members of the legal fraternity, this is the first time the JSA is holding a meeting of this nature. The main subject to be discussed at this meeting will be the appointment of Ramanathan Kannan to the HC and also the attitude of the BASL with regard to this matter. When Kannan was appointed to the High Court, the Judicial Services Association protested vehemently, writing to the President, the Judicial Services Commission and the BASL against this appointment. In the discussions that ensued, it transpired that the decision making bodies in the BASL – the Executive Committee and the Bar Council and even the Secretary of the BASL had been completely unaware that the then President of the BASL Geoffrey Alagaratnam had recommended Ramanathan Kannan for appointment as a High Court Judge to the President and the Chief Justice.
In any event, the BASL has no constitutional role in the appointment of judges. According to Article 111(2) (a) the President appoints judges to the High Court on the recommendations of the Judicial Service Commission, which is headed by the Chief Justice. Before making such recommendation the JSC will have to consult the Attorney General as well. If the Chief Justice wishes to make inquiries about the suitability of a candidate, he can make such inquiries from prominent members of the legal profession entirely at his own discretion. The President of the BASL can be among the senior lawyers consulted in this manner. But, this will be an inquiry made at the discretion of the CJ or other member of the Judicial Services Commission and the BASL President has no legal right to recommend anybody for appointment to the High Court. However, after the present yahapalana government came into power, a group within the BASL has been trying to arrogate to themselves a key role in the appointment of judges.
For their part, the yahapalana authorities have also been trying to give the BASL that power obviously as a reward for the role played by many lawyers in the regime change project of January 2015. The first draft of the 19th Amendment had a provision making it mandatory for the Constitutional Council and the Judicial Services Commission to consult the BASL when appointing judges. This was shouted down by the Opposition and the provision was dropped when the 19th Amendment was finally passed. However, the BASL President appears to have arrogated to himself a de facto power not just to intervene but to take the initiative in the appointment of judges. What happened in the case of Ramanathan Kannan was not anybody in the JSC asking the BASL President for his opinion, but the then BASL President Geoffrey Alagaratnam taking the initiative to canvass for Kannan’s appointment as a HC judge.
The sacking of Mohan Peiris
Following the representations made to him by Geoffrey Alagaratnam, the President had asked the JSC to make a recommendation to appoint Kannan as a High Court judge and the JSC sent him the recommendation. At the time the JSC made this recommendation, they had been under the impression that the entire BASL was behind the representations made by Alagaratnam. After things hit the fan, however, the Secretary to the BASL wrote a letter to the Judicial Services Association stating that neither the BASL Executive Committee nor the Bar Council had made any recommendation that Ramanathan Kannan be appointed a High Court judge and, therefore, the BASL has not made any such recommendation. Following this letter from the BASL Secretary, the Judicial Services Commission wrote to the President on 23 February 2017 (which letter we reproduce with this article) stating that if no proper recommendation has been made by the BASL to appoint Ramanathan Kannan as a High Court judge, the recommendation made by the JSC in terms of Article 111(2)(a) of the Constitution ‘has no force or validity in law’.
The Island exclusively reported on the contents of this letter earlier this month. This letter has effectively retracted the recommendation made earlier by the JSC in favour of Kannan’s appointment to the High Court. Following the receipt of this letter, the Secretary to the President wrote back to the JSC on 8 March 2017 asking for a recommendation that Kannan be removed from the position of High Court judge. (Letter reproduced here.) Up to now, the JSC has not written to the President in terms of Article 111(2)(b) recommending Kannan’s removal. Whether it is necessary for the JSC to make such a recommendation to remove Kannan is questionable because the present government removed Mohan Peiris from the position of Chief Justice saying that there was a flaw in the way his predecessor had been removed and since his predecessor had not in fact been removed, Peiris had never been the CJ! The yahapalana President himself bragged openly in public that he had used his executive power to remove Peiris.
Yet, when it comes to Kannan, that executive power which had enabled the government to sack a Chief Justice with just a chit from the Presidential Secretariat seems to be strangely paralysed. In a situation where the JSC has officially and in writing, retracted the recommendation they made earlier that Kannan be appointed to the HC, his removal by the President on the basis that he had not been constitutionally appointed, should have been automatic. Instead, what we see is the Presidential Secretariat writing back to the JSC asking for a recommendation in terms of Article 111(2) (b) of the Constitution, for Kannan’s removal. In the meantime, the various parties responsible for Kannan’s appointment to the High Court including, of course, Geoffrey Alagaratnam have been fighting tooth and nail to safeguard their protégé in the High Court. One way in which these parties seek to keep Kannan in the High Court is by foisting the blame for his appointment on former Chief Justice K. Sripavan.
As Alagaratnam argued, in his speech, at Sripavan’s farewell, despite any canvassing, importuning, or writing of letters he (Alagaratnam) may have done to the President and to the Chief Justice on behalf of Kannan, it was up to the CJ and the JSC to exercise ‘due diligence’ before recommending Kannan to the President for appointment to the High Court. The gist of this argument is that now that Kannan has been appointed as a judge of the High Court by a mistake made by the former Chief Justice who had assumed that Alagaratnam was speaking on behalf of the BASL, he (Kannan) cannot be removed unless some wrong doing is proved on his part. This mind you, is the argument put forward by the very person who is squarely responsible for misleading both the Chief Justice as well as the President of the country by giving them the impression that he was speaking on behalf of the entire BASL.
Mind numbing perfidy
In a previous interview with this newspaper Hemantha Warnakulasuriya described those promoting the appointment of Ramanathan Kannan as a ‘mafia’ within the BASL. Given the perfidious statements being made to keep Kannan in a position to which he should never have been appointed in the first place, this does indeed look like the work of a mafia in action. What takes the cake is that Geoffrey Alagaratnam just before he stepped down from the position of President of the BASL, had written a letter to the new Chief Justice Priyasath Dep telling him among other things that the BASL at its Special meeting on 21 March 2017 had considered the recommendation of a committee of senior silks and past BASL presidents and had decided that the BASL should not get involved in recommending the removal of a High Court judge who has now been appointed and that this can only be done by the President on the recommendation of the JSC.
In this letter Alagaratnam had also unrepentantly claimed that the BASL has ‘every right’ to make recommendations to the President to appoint eminent members of the bar for judicial appointments and called on the President to consider the recommendations made by the BASL for appointments to the judiciary from time to time. This letter dated 22 March 2017 is also reproduced with this article and in it we once again see an element of absolute perfidy when Alagaratnam says that the BASL decided not to get involved in recommending the removal of a High Court judge who had already been appointed. He seems to have conveniently forgotten that it was he who recommended the appointment of that judge and misleading both the former Chief Justice and the President in the process.
The main question that this letter brings to the fore, is whether the BASL should have any role at all in recommending judges for appointment as asserted in this letter? If the private bar has a role in appointing the judges who will be hearing their cases, that is going to corrupt the entire justice system. What happened in the case of Ramanathan Kannan is precisely what should never happen again. Kannan a lawyer practicing in the Batticlaoa courts was recommended for appointment as a judge by the President of the Batticaloa Bar – which certainly smacks of someone being recommended for high judicial office by a friend and colleague. Now Kannan is a High Court judge who owes his appointment to two practicing lawyers. If this is replicated over and over again, before long we will have a good number of judges at all levels of the judiciary who owe their positions to certain members of the private bar.
In the context where a High Court judge is now holding office without having fulfilled the constitutional requirements to be appointed a HC judge, the Judicial Services Association and the BASL will both be holding important meetings to decide what positions they will take on this matter. Tomorrow will be the acid test for the new President of the BASL U.R. de Silva, who will be presiding over a meeting of the BASL for the first time. Certain comments made by the new BASL President give us reason to believe that he may not follow in the footsteps of his predecessor. Addressing a press conference last Wednesday, De Silva told reporters that the BASL did not approve of the appointment of Kannan to the HC and that the former BASL President Alagaratnam had recommended Kannan in his private capacity, using letterheads of the BASL and that it was wrong to have done so. He had also said that, according to the BASL Constitution, the President of the association could not issue such letters without the knowledge of the Executive Committee. Thus, there is now hope that this whole disreputable episode will be brought to a close with the BASL also standing for Kannan’s removal after the separate BASL and JSA meetings to be held tomorrow.