by C.A.Chandraprema Courtesy The Island

• Judicial Services Assn. issues ultimatum to BASL
• BASL split and in a bind
• JSA seeks reversal of controvercial appointment

Just two Sundays ago, this columnist wrote in in an article titled  “Magistrate sacked on allegations of political involvement” that  a newly recruited Magistrate D.M.A.I. Dissanayake had been sacked by the Judicial Services Commission (JSC) on allegations of political involvement. When called before the JSC, Dissanayke had been shown three photographs of him and Minister Susil Premajayantha with another lawyer outside the Kaduwela court on the day that former minister Basil Rajapaksa was first remanded, another photograph of a gathering of lawyers with MR and Dissanayake shown apparently talking to one another and a printout of a facebook post of a survey with a photograph of MR and the caption in Sinhala “Are you in favour of MR coming back to rule the country that he built and the yahapalakayas destroyed?” which he was supposed to have shared on facebook.

Dissanayke had explained that his senior Anil de Silva had appeared for Basil Rajapaksa and that was why he was seen outside the Kaduwela court with minister Susil Premajayantha who also appeared as a lawyer for BR.  The other photo had been taken at a gathering of lawyers called by MR in April 2013. To the query about the facebook survey, he had answered that as a private lawyer after 2010, he may have shared or even commented on posts coming into his facebook account. He had also been asked whether he had distributed leaflets against former Chief Justice Shirani Bandaranayake which he had denied. The letter of dismissal issued to Dissnayake by the JSC stated that the facts revealed at the interview and the materials on his personal face book account proved that he was actively engaged in politics.

The newly sacked Magistrate Dissanayake had been a court interpreter and then a registrar and later had become an attorney at law. He had sat for the exam to recruit Magistrates among 400 other applicants and had come first in Sri Lanka in the Sinhala medium. According to the letter of dismissal issued, Dissanayake has been sacked for two reasons – firstly for engaging in active politics and secondly for unethical conduct during the period he held the post of Court Interpreter from 23.05.2001 to 14.02.2011. This second accusation against Dissanayake was that he had been accepting santhosams from lawyers to shift the file from the top of the pile to the bottom of the pile and vice versa to help lawyers to appear for their cases.

D.M.A.I.Dissanayake was not formally charged or found guilty of any of the reasons that the JSC gave for his removal from the position of Magistrate nor was a proper examination of evidence held. The JSC is entitled to dismiss judicial officers in that manner because judges have not only to be above board but also appear to be above board and the mere whiff of any irregularity or wrongdoing or political involvement would suffice to dismiss a judge as being unsuitable for the post. Even in the superior courts, the impeachment process is not a punishment but a means of removing a person deemed unfit to be a judge. There were various charges made against former Chief Justice Shirani Bandaranayake relating to the accumulation of unexplained wealth and non disclosure of certain deposits in her mandatory assets declarations.

Highly irregular appointment

However the simple conflict of interest that arose with her being the Chief Justice and President of the Judicial Services Commission having the power of transfer, disciplinary control and dismissal over the magistrate who was trying her husband on financial impropriety charges filed by the Bribery Commission alone was enough to impeach her. Thus from the top to the bottom of the hierarchy in the judiciary, judges should not only be above board but also seen to be so. Ironically, around the same time that the Judicial Services Commission summarily dismissed the newly recruited Magistrate D.M.A.I. Dissanayake, they had recommended the appointment of one Ramanathan Kannan, a lawyer practicing at the private bar in Batticaloa as a High Court Judge.

According to Article 111 (2)(a) of the Sri Lanka constitution, High Court judges are appointed by the President after consulting the Attorney General and on the recommendations of the Judicial Services Commission. It so turns out that President Sirisena had made this appointment after receiving the required recommendation from the Judicial Services Commission. On February 6, 2017, The Mt Lavinia Magistrate M.M.M. Mihal who functions as the Secretary of the Judicial Services Association (JSA) wrote a six page letter to the President stating that he is writing this letter on the basis of the unanimous decision arrived at by the Executive Committee of the Judicial Services Commission which met on February 3, 2017 at the Colombo District Court premises.  The latter further stated that:

* They had come to know on January 31, 2017 that Mr Ramanathan Kannan who served on the unofficial bar in Batticaloa had been appointed a High Court judge and was to be sworn in on February 1, 2017 and expressed surprise at this because the President had pledged not to make such appointments.

*The Judicial Services Association had not been informed of this appointment.

* Members of the JSA met the Chief Justice on February 1, 2017 to inquire whether the Judicial Services Commission had made a recommendation to make this appointment in terms of Article 111(2) of the constitution and were informed that on a request made by the Bar Association to the President, the President had asked the Judicial Services Commission to make the recommendation and they had done so after consulting the Attorney General.

*Thereafter, the JSA had inquired from the Bar Association of Sri Lanka whether any such request had been made by them to the President. The Secretary of the BASL Amal Randeniya had informed the JSA that the BASL had not made any recommendation that Mr Ramanathan Kannan be appointed as a High Court Judge and that no such resolution had been passed by the executive council of the BASL either.

* The JSA made inquiries from Minister of Justice Wijedasa Rajapakshe who said that he knows nothing about this appointment and that some time ago, a certain political paty had wanted this person appointed to the High Court but that he had not acceded to that request.

*Therefore it is clear that neither the BASL nor the Minister of Justice had made recommendations to make this appointment and that some individual or group of individuals had misled the President and the Chief Justice.

*The JSA learns that Ramanathan Kannan was sworn in as a High Court judge on February 1, 2017.

*This Ramanathan Kannan became an Attorney at Law in 1997 and in 2004 he had applied for the position of Magistrate and presented himself for an interview but on failing the interview, he had not been appointed as a Magistrate. Of the Magistrates who were appointed in 2004, the one with the highest marks is now 40th in the list awaiting promotion to the High Court. The president should consider how reasonable it is to appoint a lawyer who failed to get appointed as a Magistrate to the High Court over the heads of all the others on the list.

*If the requirement was that a Tamil speaking judge had to be appointed for the North and East, the Vavuniya District Judge A.L.M.Manaf would have been the most qualified candidate.

*Therefore it is the considered opinion of the Judicial Services Association that this appointment is wrong in terms of law, and the hitherto established practice.

*If as Minister of Justice Wijedasa Rajapakshe states, a political party had requested the appointment fo Mr Ramanathan Kannan to the High Court, it then follows that this appointment has been made for political reasons and appointing a person with political connections as a High Court judge will endanger the independence of the judiciary.

* This decision can be reversed in terms of Article 111(2)(b) which gives the President the power to remove Judges of the High Court on a recommendation by the Judicial Services Commission.

In an ironic twist, Ranjith Keerthi Tennakoon of the Sri Lanka Centre for Human Rights and Research, who had been one of those at the forefront of petitioning the Judicial Services Commission to sack the newly appointed Magistrate D.M.A.I. Dissanayake was singing a very different tune with regard to Ramanathan Kannan. In addition to the charge that Dissanayake had been involved in politics for a long time, Tennakoon tried to make out that Dissanayake had given a false address in his application. For someone who considered even an address stated on an application to be a major issue, he seems to be oddly unperturbed by Kannan’s appointment. Tennakoon blandly said that on inquiries made they had found that this appointment has been made according to a written request made by the President of the Bar Association and that it had received the Attorney Generals assent and had been recommended by the Chief Justice and therefore appeared to be above board.

JSA throws down the gauntlet

In the meantime the Secretary of the Bar Association has been telling journalists who call him that the executive committee of the BASL had never made any recommendation that Mr Ramanathan Kannan be made a High Court judge. President Maithripala Sirisena too has been at pains to point out that he had not made an arbitrary decision in this regard. Addressing the ‘National Law Conference 2017’ at Galle Face Hotel in Colombo he stated that this appointment was made following a written request made by the Bar Association of Sri Lanka (BASL).

The Judicial Services Association had written to the Bar Association on February 6, 2017 telling them that the Chief Justice had informed them that Mr Ramanthan Kannan who had been practicing at the unofficial bar had been appointed as a High Court judge at an earnest request of the Bar Association addressed to the President which had then been communicated to the Judicial Services Commission and the latter had acceded to this request. The Judicial Services Association had stated that appointing a lawyer practicing at the unofficial bar over the heads of many senior judges who had been serving for more than 16 years was a case of overlooking the rights of the entire subordinate judiciary and a thing that has not happened in recent history.

Therefore the JSA informed the BASL that if they had intervened to get this appointment made, the members of the lower judiciary will no longer be able to work amicably together with the BASL and therefore members of the JSA will refrain from functioning as presiding officers at the BASL elections to be held on February 21, 2017 (next Tuesday). The JSA stated that they had subsequently heard that the BASL had not recommended that appointment but that they were going on the basis of what the Chief Justice had told them. The JSA stated that they were willing to reconsider their decision not to participate in the BASL elections a) if the BASL officially confirms that they did not make this recommendation to appoint a High Court judge b) if someone had used the name of the BASL to make this recommendation that they inform the President and the Judicial Services Commission of this and c) that the BASL make a formal request that this decision be reversed and this High Court judge dismissed from service immediately.

Once again on February 6, 2017, the Judicial Service Association of Sri Lanka wrote to the Chief Justice and the Judicial Service Commission stating that on January 31, 2017, several judicial officers around the country had queried the Judicial Service Association regarding the rumor going around judicial circles about the appointment of a lawyer from the unofficial bar directly as a High Court Judge and requested the Association to verify the said news and to take immediate steps to safeguard the interests of the officers of the minor judiciary.

Prez, CJ misled by ‘elements’ in BASL

Members of Judicial Service Association had met the Chief Justice on the morning of February 1, 2017, to verify the said news and to inform him of the concerns of the judicial officers of minor judiciary. At this meeting the Chief Justice had informed the JSA that this appointment had been made at a request made by the President due to representations made by the unofficial bar. On learning of the involvement of the Bar Association several members of the Judicial Service Association requested the convening of an emergency Executive Committee meeting urgently. As requested by members, the Exco meeting of the Judicial Service Association was held on February 3, 2017.

At the said meeting, the executive committee came to be aware that neither the Bar Council nor the Executive Committee of the Sri Lanka Bar Association has taken a decision in this regard. The Judicial Service Association has verified the said information from Sri Lanka Bar Association and it was confirmed that Sri Lanka Bar Association has never taken such decision. It was clear from the information received, that some elements in the Sri Lanka Bar Association have misled the President and the Chief Justice. Since it was disclosed that the name of the Sri Lanka Bar Association has been misused in this instance by some elements, the Executive Committee of the Judicial Service Association has decided to convey its displeasure and disapproval to Sri Lanka Bar Association in this regard and to request Sri Lanka Bar Association to inform its stance in this regard and to take necessary steps to rectify the situation.

Since it has transpired that the due recommendations were obtained by some elements by misleading and misrepresenting facts to the Chief Justice, the Executive Committee of the Judicial Service Association has decided to request the Chief Justice and other members of the Judicial Service Commission to reconsider the recommendation to appoint Mr. Ramanathan Kannan as High Court Judge. Further the Judicial Service Association has requested the JSC to recommend the removal of the said officer to His Excellency the President in terms of Article 111(2)(b) of the Constitution, since the said appointment was made on the misrepresentation of facts.

Readers will note that what appears to be pivotal in this whole episode is the recommendation of the Bar Association of Sri Lanka or someone in the BASL that Ramanathan Kannan be appointed a High Court judge. Someone in the BASL had urged the President to make this appointment and the president in turn had requested the Judicial Services Commission to make the recommendation. The question that arises is under what law is the Bar Association making recommendations for the appointment of judges? What is frightening is that both the President and the Chief Justice seems to think that the BASL is the body that should be making recommendations for the appointment of judges and they are willing to go along with that – they have in fact gone along with that in the appointment of Ramanathan Kannan to the High Court.

If the judges of this country are going to be dependent on the lawyers appearing before them for appointment and promotion, they will be compelled to keep influential legal practitioners happy by giving them the verdicts that they want and it will lead to unimaginable corruption in the judiciary. It is only after the yahapalana government came into power that the Bar Association began playing such a role. They earned their spurs by helping the government to oust the then Chief Justice Mohan Peiris and from that point onwards the BASL has been arrogating to themselves powers over the judiciary.

When the first draft of the 19th Amendment came out, it contained a provision that the Constitutional Council would have to consult the Chief Justice and the Bar Association in making appointments to the Supreme Court and the Court of Appeal. This was shot down by the Joint Opposition. Now once again, the Subcommittee on the Judiciary of the Constitutional Assembly has put forward proposals to give the Bar Association a role in the appointment of judges to the superior courts. However there is at this moment no provision in the law to enable the Bar Association to make such recommendations. Yet the President and the Chief Justice seem to be working on the premise that there was.

BASL split?

What is strange is that fact that neither the chief justice nor the Judicial Services Commission seems to be concerned about the abuses that could take place when members of the private bar are given power over the appointment of judges. Ramanathan Kannan was the first judge to be appointed on the recommendations of the Bar Association and even in this first instance, the abuses that could take place have become apparent. In the first instance, it was not the Bar Association but the President of the Bar Association acting alone, without the sanction of the Bar Association’s decision making bodies who had recommended the appointment of Ramanathan Kannan. Yet it was taken by the President and the Chief Justice as a decision made by the BASL.

Moreover the person who has been appointed has according to what the Minister of Justice had told the Judges, been recommended for appointment to the High Court by a certain political party. The Bar Association itself is a highly politicized body with a UNP parliamentarian once functioning as its President. The next President of the BASL played a major role in the regime change project of 2015 and was given a top political appointment the moment the government changed. So it’s not surprising that the first judge recommended by the Bar Association for appointment as a High Court Judge is also now said to be the nominee of a political party. We have no reason to think that the Minister of Justice was lying to the Judicial Services Association when he said that this individual had been recommended by a political party on an earlier occasion. When the Judicial Services Association revealed that Justice Minister Wijedasa Rajapakshe had told them that a political party had recommended to him that Mr Ramanathan Kannan be appointed a high court judge, suspicion naturally centred on the Tamil National Alliance. However a TNA spokesman speaking to The Island denied that they had been promoting Mr Ramanathan Kannan’s elevation to high judicial office.

No political party other than the Joint Opposition has taken up this matter of the gravest importance. All other parties with representation in parliament other than the Joint Opposition are partners in the yahapalana coalition so perhaps it was not surprising that only the Joint Opposition took this matter up. The other political parties in the yahapalana coalition would naturally keep quiet because they too could get their nominees appointed to the judiciary by the same means. The judiciary will then become like the independent commissions that were set up by the 19th  Amendment – organizations that provide jobs for their supporters. So it is not surprising that only the Joint Opposition took this matter up by holding a press conference on Thursday at its Battaramulla office.

Professor G.L.Peiris and several lawyers of the Joint Opposition spoke in support of the views expressed by the Judicial Services Association in the three letters mentioned in this column which are now in the public domain. The government in power may not have much of an interest in protecting the independence of the judiciary, but the opposition always does. The point that the Chief Justice and the Judicial Services Commission will have to ponder is, if they sacked a newly recruited magistrate D.M.A.I. Dissanayake on the grounds that he was politically active based on two photographs and a facebook post, on what grounds are they to allow Ramanathan Kannan who has been described by no less than the Minister of Justice as a person who was recommended for judicial appointment by a certain political party to remain in service?