by C.A.Chandraprema Courtesy The Island

February 25, 2017, 6:27 pm
The controversy over the appointment of Ramanathan Kannan a lawyer practicing in the private bar as a High Court judge continued to rage last week. Members of the Judicial Services Association (JSA) carried out their threat to boycott the BASL election that was to be held on Tuesday last week. The members of the lower judiciary were to act as presiding officers at the elections of the BASL and the election could not be held without their participation and had to be postponed. Things have now become even more complicated with the BASL amending their constitution to be able to have their election of office bearers without the Judicial Services Association. Another dimension to this stand off between lawyers and judges of the lower judiciary is that Chief Justice K.Sripavan will be retiring at the end of this month on Tuesday.

Earlier, in informing the BASL of their decision to boycott the BASL election, the JSA had said that they would reconsider their decision provided the BASL fulfilled three conditions. The three conditions were that a) the BASL should officially and in writing confirm that they did not make any recommendation to appoint a High Court judge b) if someone had used the name of the BASL to make this recommendation they should inform the President and the Judicial Services Commission about this and c) that the BASL make a formal request that this decision be reversed and the said High Court judge dismissed from service.  Now the BASL has found a way to work around this problem without acceding to the demands made by the judges.

The Secretary of the BASL had in fact written to the JSA earlier on 16 February 2017 stating among other things that since the BASL had never been formally involved in recommending individuals for appointment to the judiciary, neither the Bar Council nor the Executive Committee of the BASL had been called upon to consider the appointment of Ramanathan Kannan for the position of High Court Judge. This letter also stated that the President of the BASL had explained to the Executive Committee that he had got a recommendation from the Head of the Batticaloa Bar Association stating that Mr Ramanathan Kannan be appointed a High Court judge and that this latter had been forwarded by him to the President, Chief Justice and the Minister of Justice back in September 2016. The reason why Kannan’s name had been proposed is because there was a dearth of Tamil speaking judges in the north and east and a lack of suitable candidates for such positions in the judicial service and the Attorney General was reluctant to release his officers for such appointments.

The BASL Secretary had further said that the BASL President had also explained that the President had appointed Kannan after receiving the necessary recommendations from the Judicial Services Commission and the Attorney General and that when appointments were made from the private bar to the judiciary, the executive consulted the ‘leaders of the bar’ and that the Bar Council and the Executive Committee of the BASL had never considered recommendations for judicial appointment. This letter by the BASL Secretary Amal Randeniya made it clear that the BASL as a body had not been involved in recommending Mr Kannan for judicial appointment but that certain individuals such as the President of the Batticaloa Bar Association and the President of the BASL Geoffrey Alagaratnam had made the recommendation to the President and the JSC. Randeniya seems to suggest that there was nothing wrong in the rest of the BASL being in the dark with regard to this because neither the Bar Council nor the BASL Exco had been previously involved in making such recommendations.

Appointing buddies to the bench

Last Sunday, former President Mahinda Rajapaksa put out a statement to the media about this controversial judicial appointment where he had stated among other things that the accepted practice in this country is that virtually all the judges serving on the Supreme Court, Court of Appeal and High Court are promoted to those positions through the ranks of the judicial service or to a lesser extent, the Attorney General’s Department. On very rare occasions past governments had appointed eminent members of the private bar as Supreme Court judges and that former CJ Neville Samarakoon and Justice Mark Fernando came into the Supreme Court in that manner. MR stated that in the nine years that he was President, he had appointed only one Supreme Court judge from the private bar and not a single member of the private bar had been appointed to either the Court of Appeal or the High Court by his government.

Rajapaksa had also made the point that the Bar Association of Sri Lanka has no constitutional, legal or moral right to make recommendations for the appointment of judges and that if the private bar is given the power to recommend the appointment of judges, that would corrupt the entire justice system with judges being dependent on the lawyers appearing before them for promotions and appointments. He charged that some office bearers of the Bar Association had played a major role in toppling his government in 2015 and the yahapalana authorities have been trying to reward them by giving them the power to appoint judges despite the damage that this will do to the entire legal system.

If we look at the contents of BASL Secretary Amal Randeniya’s letter of 16 February 2017 in the light of MR’s subsequent statement, several points that should be carefully pondered emerge. Firstly, Ramanathan Kannan’s name had been suggested to the BASL President Geoffrey Alagaratnam by the President of the Batticaloa Bar Association. In a video interview with Adaderana, Alagaratnam says he did not know Kannan at all before that. Based on the recommendation of the President of the Batticaloa Bar Assn, Alagaratnam had forwarded it to the President and the Judicial Services Commission. So the prime mover in this matter is the President of the Batticaloa Bar Association. The President of the Batticaloa Bar Asociation is a lawyer engaged in private practice. He recommends another lawyer engaged in private practice at the Batticaloa bar for appointment as a High Court judge. Thus the president of the Batticlaoa bar now has a tame High Court judge who is beholden to him.

As MR said in his media release, there is no doubt that such a process will lead to collusion and corruption within the justice system.  The Presidents of the Bar Associations in the towns across the country will recommend their buddies for appointment as judges and after a while, there will be anything but justice being dispensed by the judiciary. If a member of the private bar is to be appointed to the judiciary at all, it should never be done on the recommendation of that lawyer’s colleagues. Furthermore, if at all a judge is being appointed from the private bar it is best that such appointments be restricted to the Supreme Court. Judges of the Court of Appeal and the High Court are best appointed through promotion from the lower judiciary or the Attorney General’s Department. If highly respected members of the private bar are appointed to the Supreme Court, there is a better chance of those individuals seeking to act in an exemplary manner because the Supreme Court appointment will be the culmination of a distinguished career at the private bar for that individual. Those appointed to the Court of Appeal or the High Court from the private bar will not be lawyers at that level, and for them it will be a part of their career rather than a badge of honour.

Excuses for appointing Kannan

Be that as it may, members of the yahapalana coalition have gone into overdrive trying to justify the appointment of Ramanathan Kannan to the High Court.  Convenors of the NGO ‘Lawyers for Democracy’ Lal Wijenayake, K.S.Ratnavel and J.C.Weliamuna said in a press statement that there have been several appointments of private practitioners to the High Court from 1974 onwards, one of the recent appointments being that of Mr. S.Paramarajah during Chief Justice Sarath Silva’s tenure and that one of the reasons for appointing members of the private bar being the lack of Tamil-speaking judges. Lawyers for Democracy is silent on the recommendation made by the Judicial Services Association that the Vavuniya District Judge D.L.A.Manaf would be the best candidate for that position. Lawyers for Democracy go on to say that Kannan’s name had been proposed to the President ‘following the traditions’ upon nomination by the President of the Bar Association. Since when was it the ‘tradition’ for the President of the Bar Association to ‘nominate’ candidates for appointment to the higher judiciary?

Lawyers for Democracy has stated moreover that in their view, in appointing a practicing lawyer to the higher judiciary, views should be obtained only from the President of the Bar Association and not from its committees such as the Bar Council or the Executive Committee. If the whole Bar Council or the Executive Committee is involved there will be canvassing and open debate, compromising the nominee’s independence. The practice has always been for the President of the Bar Association to make such recommendations, whenever suitable candidates are proposed. In this instance, it is the present President of the BASL Geoffrey Alagaratnam who had moved in this matter. His predecessor played a key role in toppling the Rajapaksa government and was rewarded with the position of Chairman of the BOI. His predecessor was a sitting UNP MP and is now a minister. In such circumstances, getting the recommendations of the President of the BASL to appoint judges would be akin to obtaining nomination through a political party.

One of the biggest ironies in this whole episode is that it was Lanka e News that first broke the news of Ramanathan Kannan’s irregular appointment by publishing in full the six page letter written by the Judicial Services Association to the President asking for a reversal of this appointment. Thereafter however, LeN has been furiously paddling in the opposite direction and publishing article after article trying to justify Kannan’s appointment. One such article which was supposedly written by a former President of the Judicial Services Association (who has declined to reveal his name) has said among other things that the JSA which comprises of members of the lower judiciary must obtain the permission of the Judicial Services Commission before addressing a letter to anybody. Hence the letters relating to this matter sent by the Secretary of the JSA , without the authority of the JSC is absolutely illegal.

The purported retired judge who claims to have been a past President of the JSA has gone on to explain that  D.L.A. Manaf  the district judge of Vavuniya whose name has been recommended by the JSA was not appointed owing to a prior wrong committed by him. According to this anonymous article, Manaf had held the post of member of the Eastern University Council without obtaining the permission of the JSC and during his tenure on the council, he had dismissed a University employee and also heard that case in court to sack the employee. This constitutes serious miscarriage of justice. What is significant is that even though this has been said of Manaf in an anonymous article on a website operated from overseas, no one who has been commenting on this matter has brought up this argument of Manaf’s conduct which makes him unsuitable for appointment as a High Court Judge. If this allegation was true, a body like Lawyers for Democracy could have highlighted it to counter the argument put forward by the JSA. It might be useful for the JSA Secretary to issue a clarification for the information of the public whether there is any substance in this charge against Manaf.

Ranjith Keethi Tennakoon of the elections monitoring NGO CAFFE has been at the forefront of the campaign to justify the appointment of R.Kannan as a High Court Judge and he has put out several media releases on this subject since the matter came out into the open. On 12 February Tennakoon put out a release stating that it was a common practice to appoint judges to the Supreme Court and High Cout from outside the judicial service and he said that Judges like Mark Fernando, Shirani Bandaranayake, Dr A.R.B. Amarasinghe, Priyantha Jayawardene, Prasanna Jayawardene, Suresh Chandran and Upali de Z Gunawardene had received their appointments in that manner.  Five days later on 17 February Tennakoon put out another media release stating that the judiciary should be strengthened by recruiting qualified judges to avoid delays in the dispensation of justice.

In this media release Tennakoon had taken Prof G.L.Peiris to task for saying that R.Kannan had been appointed on the recommendations of a political party. He argued that the President had made this appointment after obtaining the necessary recommendations from the Judicial Services Commission and the Attorney General and that it is necessary to appoint suitable judges to clear the backlog of cases in the courts system. Last Wednesday, the beleaguered President of the BASL Geoffery Alagaratnam himself came out with a media release explaining his role in this affair. Alagaratnam had argued that for over a year, representations had been made by lawyers that there was an acute shortage of High Court Judges in the Northern and Eastern Provinces conversant in the Tamil language resulting in a backlog and delay in the disposal of cases.

There was a serious shortage of Tamil speaking career judges senior enough to be promoted to the High Court said Alagaratnam and claimed that even the Attorney General’s Department was unwilling to release its officers conversant in the Tamil language for such appointments due to its heavy reliance on its very few Tamil officers. Consequently, the Chief Justice himself had suggested that if members of the Unofficial Bar were willing to give up their practice and offer themselves for such appointment the same will be considered.

When lawyers appoint judges

Furthermore Alagaratnam said that there has never been a practice of either the Bar Council or the Executive Committee of the Bar Association or Branch Associations approving persons that are to be recommended for appointment to the judiciary and the practice has been to seek recommendations from the ‘leaders of the Bar’. In a vedioed interview with Adaderana Alagaratnam said that it will be ‘unethical’ for judicial appointments to go before the Bar Council or the executive Committee of the BASL because then ‘it will be like political campaigning’.  Those who defend the appointment of Ramanathan Kannan as a High Court judge have not been able to get their minds around the argument that members of the unofficial bar should not recommending the appointment of the judges who will be hearing their cases.

When the first draft of the 19th Amendment came out, it had a provision where the constitutional council would have to consult the BASL before appointing judges to the superior courts. This was removed from the final draft of the 19th amendment due to the outrage it caused. Despite that experience of having been shouted down once, this provision that the BASL should be consulted in appointing judges to the higher courts has once again made its appearance in the recommendations made by the Sub-committee on the Judiciary of the Constitutional Assembly. Now we see every apologist for the appointment of Kannan to the High Court taking it as one of the givens that the BASL or its President has a right to make recommendations for the appointment of judges.

Indeed they seem to using this very debate to try and impress upon the public that it was the most natural thing in the world for the President of the BASL to recommend the appointment of judges who will be hearing the cases he may appear for. Geofferey Alagaratnam has tied himself up in knots by trying to argue that only the President of the Bar Assoication should have the power to recommend candidates for appointment as judges and not the Bar Council or the Executive Committee of the BASL as that would give rise to canvassing for appointment. Even though he can understand that putting recommendations before the BASL executive committee will give rise to canvassing, he seems unable to understand that the private bar should never get involved in appointing judges.

Rajapakshe with the Rajapaksas?

Last Wednesday Ranjith Keerthi Tennakoon issued a rebuttal of the Media Release put out by former President Mahinda Rajapaksa about this controversial High Court appointment. This was mostly a recounting of the depredations committed against the judiciary by MR when he was President. In this media release, Tennakoon has lambasted the Minister of Justice Wijedasa Rajapakshe saying he was a close confidante of the Rajapaksa family. It was Minister Rajapakshe who had told the Judicial Services Association that Kannan had earlier been recommended to him by a certain political party for appointment as a High Court judge. The way to go about it would not be to heap opprobrium on the Justice Minister but to find out whether any political party had actually made such a recommendation to Wijedasa Rajapakshe.

It can be seen that despite the debate raging around this topic, the Justice Minister has not retracted what the Judicial Services Association said he had told them. Is it likely for a Minister of Justice to tell such a thing to an association that represents the entire lower judiciary in this country, if it was not true? Less than a month ago Ranjith Keerthi Tennakoon was agitating for the sacking of a newly recruited Magistrate with the first accusation on the petition that he sent in that regard to the Judicial Services Commission being that the Magistrate had given a false address on his application! Since Tennakoon applies such high standards of probity even to the lowest tier of the judiciary, it is certainly surprising that he does not see any flaws in the appointment of Kannan to the HC.

What is even most dangerous about Tennakoon’s press release is his suggestion that a Tamil High Court judge for the North would be better than a Muslim as requested by the JSA which had recommended D.L.A. Manaf. This ultimately seems to be what all this is about. It’s not sufficient for the judge to be Tamil speaking; he has also to be of Tamil ethnicity. Where will things end up if we start going down this slippery path? Since the majority of the population is Sinhalese, there will be no more Tamil chief justices. There is a Tamil-Muslim problem in the north no doubt as can be seen from the perpetual postponement of the Puthukudirippu and Maritimepattu Pradesheeya Sabha elections. But is the solution for that, to increase the compartmentalization of the communities living in this country?