Mayhem seems to have struck the Bench and the Bar due to events that have taken place subsequent to the appointment of Ramanathan Kannan as a High Court judge.
Appointing officials to high ranking positions is done with extreme caution while adhering to procedure, and the appointment of a member of the Bench too requires a certain degree of equanimity and most importantly, following the law that has been laid down for it.
The appointment of a judge to the High Court shall be made by the President as per the laws set out in the Constitution. Accordingly, Article 111 provides for the appointment, removal and other laws pertaining to a high court judge and Article 111 (2) (a) provides:
“The Judges of the High Court shall on the recommendation of the Judicial Service Commission, be appointed by the President by warrant under his hand and such recommendation shall be made after consultation with the Attorney General”.
Unofficial bar
However, we are currently faced with a situation where a recommendation has been made by the President of the Bar Association of Sri Lanka (BASL) to appoint a high court judge from the unofficial bar. Speaking to the Sunday Observer, Secretary of the BASL, Amal Randeniya pointed out that the Bar Association as a body did not make any representations to the President, nominating any member of the unofficial bar as a High Court judge. The Judicial Services Association (JSA) has demonstrated their displeasure over this appointment on the basis that there are other more deserving lawyers, conversant in Tamil, and the issue was Kannan being appointed over them.
“The JSA has taken this position on the basis that the Bar Association forwarded the recommendation to the President, which is not so. Neither the Bar Council nor the executive committee, which is the authoritative body of the Bar Association has made such a recommendation to the President. However, at that meeting BASL President Geoffrey Alagarathnam conveyed the message to us that he had made a recommendation to the President. So it’s an internal issue,” the Secretary explained.
However, issuing a statement, Alagarathnam says, this was done with the intention of addressing an issue that needed swift action and taking into consideration prevailing conditions in the Northern and Eastern Provinces.
Regular bench
“For over a year, representations were made by lawyers, especially, from the Eastern Province, 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. These representations were made both, at the Bar Council and the Executive Committee meetings of the Bar Association. The issue was taken up at the regular bench and bar meetings between representatives of the Bar Association and the Chief Justice and other members of the Judicial Service Commission on several occasions,” Alagarathnam explained.
The JSA members after receiving several queries from judges around the country about the appointment by the President wrote to the Chief Justice and members of the Judicial Service Commission (JSC) showing concern over an ‘unprecedented appointment’ to the Judiciary, by the President.
“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 JSA has decided to express its displeasure and disapproval to the Sri Lanka Bar Association in this regard and to request SLBA to inform its stance in this regard and take necessary steps to rectify the situation created by the said appointment,” the letter sent to the JSC by the JSA, signed by its secretary M.M.M. Mihal, Magistrate of Mt. Lavinia, stated.
In his statement, President of the Bar Association categorically states, there never was a need to get the approval of the Bar Council or the Ex-Co of the Bar Association prior to forwarding such nominations.
Career judiciary
“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, though there have been several appointments to the judiciary from the unofficial bar in the past. It is also pertinent to note and recognize that the Bar Association has constantly maintained that courts, especially, the Apex and Higher Courts, should comprise a healthy mix of members of the career judiciary, the official and the unofficial Bar” he said.
In a sign of disapproval, the JSA decided to refrain from partaking as presiding officers at the Bar Association Elections to elect its president. In its letter, the JSA stated:
“Further, the Judicial Service Association has decided to refrain from functioning as presiding officers in the upcoming election of Sri Lanka Bar Association in the event of failing to take necessary steps.” Thereafter, the BASL elections intended to be held last Monday had to be postponed indefinitely.
In the wake of this, several allegations were made against the executive that there was unwanted interference in the judicial arm. With a statement made by the Minister of Justice Wijeyadasa Rajapakshe to the effect that it was a political party that was keen on appointing a particular person to the judiciary, the Joint Opposition expressed displeasure saying, the President should not have acted in such a manner.
Allegations
In the face of these allegations the President had stated that such decisions should be considered due to the need to face the shortage of judicial members conversant in the Tamil language, and as a solution to the backlog of cases in the Northern and Eastern areas.
In the light of allegations levelled at the Bar Association the sole representative body of the unofficial bar of Sri Lanka, the Lawyers’ Collective ‘Lawyers for Democracy’ too issued a statement shedding some light on the matter. The six point statement signed by its conveners, Lal Wijenayaka, K.S. Ratnavale and JC Weliamuna emphasized that: “All parties must act with responsibility on this appointment.”
Pointing out the fact that appointments to the judiciary does not only materialize from career judges, the statement says, as a tradition there has been instances where judges were appointed from the unofficial bar. “There have been several appointments of private practitioners to the High Court from 1974 onwards, one of the recent appointments being that of Mr. Paramarajah during Chief Justice Sarath Silva’s tenure, one of the reasons being the lack of Tamil-speaking judges, as is the case of Kannan’s appointment.”
Secondly, the statement shows that although the nomination came from the President of the Bar Association following the tradition adhering to the procedure laid down by the Constitution under Article 111, the President had called for the CJ’s concurrence of the Judicial Service Commission as well as the recommendations from the Attorney General.
Previous occasion
“During the tenure of the present President Maithripala Sirisena and the present Chief Justice, 23 individuals have been appointed to the High Court of which as many as 21 had been from and among the District Court judges. Only one appointment each has been made from the official and unofficial bar.” The statement further explained.
Addressing the two allegations levelled against the new appointment that Ramanathan Kannan had on a previous occasion attempted to join the judiciary, yet, failed the exam set for its selections, and secondly that his appointment was backed by a political party, the Lawyers’ Collective states that upon making inquires it was satisfactorily proved that there was no veracity in such allegations and that he had never applied to join the judiciary previously.
“In our view, when appointing a practising 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,” the statement said.
Addressing the decision of the JSA to boycott the Bar Association Elections, as its presiding officers, the Lawyers’ Collective stated, such decisions will go against the healthy relationship between the BASL and the Judges of the minor judiciary.
“We also urge the members of the Judges Association representing the minor judiciary to act with responsibility.”
In the meantime:
Yesterday (25) a special executive committee meeting of the Bar Association was held to decide as to how to move forward in the face of the current deadlock and hold elections to choose the president of the Bar Association.
“Accordingly, it was decided that the constitution of the Bar Association would be amended in order to facilitate the elections,” President of the Bar Association Geoffrey Alagarathnam told the Sunday Observer.
The elections will be held without the participation of judges. The Solicitor General will now appoint Returning Officers. Elections are scheduled to be held on 15 March.