By C. A. Chandraprema Courtesy The Island

March 6, 2017, 8:27 pm
The standoff between the Bar Association of Sri Lanka and the Judicial Services Association over the appointment of a member of the Batticaloa bar as a High Court Judge has ended. Accordingly, members of the JSA will be officiating at the BASL elections to be held on 15 March. Earlier, in a strongly worded letter to the BASL, the JSA had made it clear that they would not officiate at the BASL elections unless the latter took steps to undo the damage done by some members of the BASL in canvassing for this appointment. When the JSA first became aware that a member of the private bar had been appointed to the High Court on the recommendations of the BASL, they had made inquiries and found that the recommendation had been made by the BASL’s outgoing President Geoffrey Alagaratnam and not by the BASL itself with even its Secretary being unaware that such recommendation had been made.

Thereupon, the JSA made three requests to the BASL and made their participation in the BASL elections conditional upon the latter acceding to these requests which were: a) that the BASL should officially confirm in writing 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 should inform the President and the Judicial Services Commission of this fact and c) that the BASL should make a formal request that this decision be reversed. Following this stand taken by the JSA, the BASL election which was to be held on February 21 had to be postponed indefinitely. When the executive committee of the BASL met to discuss this matter, one group of lawyers had suggested that the BASL constitution should be amended to enable them to hold the election without the participation of the JSA and accordingly the BASL election was rescheduled for March 15.

As the standoff escalated, Amal Randeniya the Secretary of the BASL took steps to defuse the situation and after holding talks with the JSA, a letter was issued to the Secretary of the JSA under the hand of the Secretary of the BASL stating unequivocally that ‘the Executive Committee of the Bar Association of Sri Lanka has not arrived at any decision in the past to recommend the appointment of Mr R.Kannan as Judge of the High Court and therefore there is no recommendation from the Bar Association of Sri Lanka’. Copies of this letter had been sent to the Judicial Services Commission and the President of Sri Lanka. The Judicial Services Commission (JSC) deals with matters relating to the appointment, transfer disciplinary control and dismissal of Judges below the Appeal Court. The covering letter sent by the BASL to President Sirisena also stressed that this letter was being placed before him to explain the stand of the BASL with regard to the appointment of R.Kannan as a High Court judge.

Based on this letter from the BASL, the Judicial Services Commission had in turn written to President Sirisena stating that the Secretary of the JSC had written to him earlier, recommending the name of R.Kannan for appointment as a High Court judge on the strength of a letter from the BASL dated 15 December 2016. They stated that if the BASL has made ‘no proper recommendation’ in this regard, the recommendation that the JSC had sent to the President has ‘no force or avail in law’. Thus in effect, the JSC has by this letter dated 23 February 2017, retracted the recommendation they made to the President to appoint R.Kannan as a High Court judge. However in terms of Article 111(2) (a) of the constitution, judges of the High Court can be appointed by the president only on the recommendation of the Judicial Services Commission and the JSC will in turn have to consult the Attorney General before making such recommendation to the President. It is clear from this constitutional provision that the central role in the appointment of High Court judges is played by the JSC and the President cannot appoint HC judges on his own without the recommendations of the JSC.

The question now is, what happens if the JSC makes a recommendation to the President to appoint a certain individual as a High Court judge and then due to information that surfaces after that appointment is made, retracts the recommendation it made? This is an unprecedented situation but logically, one would think that in such instances, Article 111(2)(b) which provides for the removal of High Court judges by the president on the recommendation of the JSC should kick in automatically. It should be noted that in the JSC’s letter to the President of 23 February 2017, they have not directly asked for the removal of Ramanathan Kannan from his position. What they have said is that the recommendation that the JSC made for his appointment has ‘no force or avail in law’. What this would logically mean is that Ramanathan Kannan has no right to be holding the position of a High Court judge.

The President may not have any option but to remove Kannan from the High Court. If he is allowed to remain as a High Court judge one major practical difficulty will be that every judgement that he delivers can be and will undoubtedly be challenged as having been delivered by an irregularly appointment judge who had no right to be sitting in judgement over any case at all. Overriding even that will be the issue that Kannan had originally been recommended for appointed as a HC judge to Minister of Justice Wijedasa Rajapakshe by an unnamed political party. Minister Rajapakshe had reconfirmed this story to President’s Counsel Hemantha Warnakulasuriya when the latter made inquiries about it. How can there be a sitting High Court judge with such an allegation hanging over him? The High Court now even has appellate jurisdiction and no HC judge should be seen to be a camp follower of any political party.

Judging by the organisations and individuals who were publicly supporting the appointment of Kannan it is clear that there is substance in what Minister Rajapakshe said about him having been recommended by a political party. Anyway, the ball is now in President Sirisena’s court.

“The JSC stated that if the BASL has made ‘no proper recommendation’ in this regard, the recommendation that the JSC had sent to the President has ‘no force or avail in law’.”