The crisis in the judiciary caused by the irregular appointment of Ramanathan Kannan as a High Court judge still remains unresolved. Judges of the District Courts wait for long years to be promoted to the High Court as do Senior State Counsel in the Attorney General’s Department. If a member of the private bar is brought into the High Court over the heads of those awaiting promotion, that not only causes an immediate disturbance in the order of promotion but also skews everybody’s progression up the ladder for years if not decades to come. These are existential issues for those in the judicial service and the AG’s Department. This writer learns that a High Court judge with well over three decades of service had to retire recently without promotion to the Court of Appeal. The previous government led by Mahinda Rajapaksa had appointed one Supreme Court judge from the private bar, but never appointed anyone from the private bar to the High Court or the Court of Appeal.
As Hemantha Warnakulasuriya recounts, there was only one such appointment made during the Rajapaksa government when a vacancy opened up in the Jaffna High Court in 2007 and there were Tamil speaking candidates who were suitable for the position but none of them were willing to take up the job for fear of their lives. The then Chief Justice Sarath N.Silva had thereupon prevailed upon a senior and respected Jaffna lawyer by the name of S.Paramarajah to take up the job. That appointment from the private bar to the High Court was made in very exceptional circumstances. However the general principle strictly adhered to by the Rajapaksa government during its nine year tenure was that while on very rare occasions it may be acceptable to appoint distinguished members of the private bar to the Supreme Court, no appointments to the Court of Appeal or the High Court will be made from the private bar.
One of the main reasons for the angst within the judicial service and the AG’s Department at the appointment of Ramanathan Kannan a lawyer practicing in Batticaloa, to the High Court over the heads of all those awaiting promotion is that they had come to take it for granted that no one would be promoted from outside to the High Court or the Court of Appeal. There was a tradition of appointing distinguished members of the private bar to the Supreme Court and the present government also appointed Prasanna Jayawardene to the SC from the private bar, but nobody complained about that. (But here too such appointments should be made only on rare occasions. The vast majority of the Judges on the Supreme Court have made it there through the judicial service or the AG’s Department. The benchmark established by the Rajapaksa government was something like one per decade.) This was why the judicial service was reeling in shock when the present government appointed a lawyer from Batticaloa to the High Court in contravention of the established practice.
On 31 January 2017 when the Judicial Services Association which represents Judges of the lower judiciary became aware that a High Court Judge had been appointed from the Batticaloa bar, they had requested an appointment with the then Chief Justice K.Sripavan and the meeting took place on 1 February 2017. At this meeting, the JSA had been informed that Ramanathan Kannan had been appointed a High Court judge upon a request made by the President due to representations made to him by the BASL. On hearing about the involvement of the BASL in this matter, an emergency meeting of the JSA Executive Committee was held on 3 February 2017 where it came to light that neither the Bar Council nor the Executive Committee of the BASL had made any such recommendation. The JSA came to the conclusion that someone had ‘misled’ the President and the Judicial Services Commission into believing that the BASL had wanted Kannan appointed to the High Court.
JSA up in arms
Thus on 6 February 2017, the JSA wrote three strong letters to the Judicial Services Commission, the BASL and to the President of Sri Lanka. In their letter to the JSC, the JSA had stated that since the Judicial Services Commission had been misled into believing that the BASL had made a recommendation to appoint Kannan to the HC, they should retract the recommendation they made and make a recommendation in terms of Article 111(2)(b) of the Constitution to remove Kannan. In their letter to the Secretary of the BASL Amal Randeniya, the JSA stated that even though they had been told by the Chief Justice that the JSC had recommended the appointment of Kannan as a High Court judge due to representations made by the BASL, they were aware that neither the Bar Council nor the Executive Committee of the BASL had made any such recommendation. The JSA wanted the BASL to prove their bona fides by a) confirming formally in writing that the BASL 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 that fact, and c) that the BASL make a formal request for the reversal of this decision and the removal of Kannan from the High Court.
The third letter written by the JSA on 6 February 2017 was to President Maithripala Sirisena informing him that they had been surprised when they heard of the appointment of a member of the private bar to the High Court because the President had himself promised them that he would not make such appointments. Then the JSA went on to state that even though the CJ was under the impression that the BASL had recommended Kannan, the BASL Secretary Amal Randeniya had assured them that no such recommendation had been made by the BASL. Most significantly, the JSA informed the President that Minister of Justice Wijedasa Rajapakshe had told them that Kannan had been recommended for appointment as a High Cout judge some time ago by a political party and that this indicates that he was appointed due to political considerations. The JSA went on to explain to the President that Kannan had been appointed over the heads of many senior members of the judiciary and that if the need was to appoint a Tamil speaking judge, the most suitable candidate was D.L.A.Manaf, the District Judge of Vavuniya. The JSA informed the president that Kannan’s appointment was seriously inimical to the independence of the judiciary and they had requested the President to obtain a recommendation from the JSC in terms of Article 111(2)(b) and to dismiss Ramanathan Kannan from the High Court.
The BASL responded to the JSA by a letter dated 16 February 2017 stating that since the Bar Association had never been involved in appointing judges, neither the Bar Council nor the Executive Committee had been called upon to consider recommending Kannan and that the latter had been recommended for appointment as a High Court judge by the President of the Batticaloa Bar Association and that this recommendation had been forwarded by the BASL President Geoffrey Alagaratnam to President Sirisena and the CJ and that this appointment had been made necessary by the dearth of Tamil speaking judges in the North and East. Obviously, this wishy washy letter trying to whitewash Alagaratnam was not what the JSA expected and the very next day, on 17 February 2017 Amal Randeniya the Secretary of the BASL stated in a short but unequivocally worded letter to the JSA that; a) neither the Executive Committee nor the Bar Council of the BASL has recommended Mr R.Kannan for the position of High Court judge, and b) therefore the BASL has not made any such recommendation. On 27 February 2017, Amal Randeniya forwaded the above letter to President Sirisena and also the Judicial Services Commission stating that this represented the view of the BASL on the appointment of Ramanathan Kannan.
Following this unequivocal statement from the BASL that they did not recommend that Ramanathan Kannan be appointed to the High Court, the Judicial Services Commission wrote to President Sirisena on 23 February 2017 stating that the JSC had been under the impression that the BASL had recommended the appointment of Ramanathan Kannan as indicated in the letter dated 15 December 2016 sent by the Secretary to the President to the JSC, but that ‘if no proper recommendation has been made by the BASL’ the recommendation forwarded by the JSC in terms of Article 111(2)(a) shall have ‘no force or avail in law’. The JSC letter of 23 February effectively retracted the recommendation they had made in terms of Article 111(2)(a) of the Constitution that Kannan be appointed to the High Court. That immediately rendered Kannan’s appointment unconstitutional.
However the JSC had not made a recommendation in terms of Article 111(2)(b) of the Constitution that Kannan be removed. That was how things stood when Chief Justice K.Sripavan retired on 28 February 2017. On 8 March the Secretary to the President wrote to the Judicial Services Commission now chaired by Chief Justice Priyasath Dep requesting a recommendation in terms of Article 111(2)(b) of the Constitution that Kannan be removed from the High Court. To the best of our knowledge, the JSC has not yet sent in that recommendation.
Tar and feathers for K.Sripavan
Geoffrey Alagaratnam the outgoing President of the BASL is squarely responsible for all these problems by pushing for Kannan’s appointment to the High Court without informing anybody else in the BASL about what he was doing. Before he steps down as BASL President, Alagaratnam has made one last ditch attempt to protect his nominee in the High Court. Speaking at the farewell accorded to former Chief Justice K.Sripavan, Alagaratnam said that even though wide consultations may be held before people are recommended for appointment as judges, the Constitution reposes the authority to make such appointments only on the President, the JSC and the Attorney General and that the consulatation process cannot be the criteria for determining the validity of an appointment. He said that the constitutional role of persons entrusted with the task of making such appointments ‘cannot be abdicated’.
Alagaratnam quoting Article 111(2)(a) of the Constitution, said that this provision unambiguously states that judges of the High Court will be appointed by the President on the recommendation of the Judicial Services Commission and that ‘any other informal consultation process’ can have no bearing on the exercise of the obligation cast by Article 111(2)(a) on the JSC and that any recommendation the JSC makes should be done with ‘due care and diligence’. Thus the blame for recommending Kannan has been placed on the shoulders of K.Sripavan. That is the reward the former Chief Justice gets for having given ear to President Sirisena’s request that a recommendation be made in terms of Article 111(2)(a) based on the importunings that Alagaratnam and his associates had addressed to both the President and the Chief Justice. This element of refusing to take responsibility for the mess created by Alagaratnam was to be seen even in the BASL’s letter of 16 February 2017 written to the JSA which though signed by Amal Randeniya was obviously drafted by someone who had made common cause with Alagaratnam. In that letter too care had been taken to stress that the BASL has ‘never been formally involved in appointments to the judicary’ and that therefore neither the Bar Council nor the Ex Co of the BASL had been called upon to consider the recommendation of Kannan.
Thus Alagaratnam is arguing that whatever representations or canvassing or writing letters he may have done on behalf Kannan falls into the category of informal consultations and the responsibility for making a recommendation with ‘due diligence’ is a matter for the Chief Justice and the JSC. Technically, he’s right. But the sheer perfidy of that argument is mind boggling. The Chief Justice should be able to have nothing short of absolute trust in the President of the Bar Association. How can the system function if the Chief Justice has to suspiciously turn over and carefully examine everything brought before him by a person who is the elected head of the private bar? If the Chief Justice has done something on the strength of representations made to him by the President of the BASL and things go wrong, the BASL President should be able to accept responsibility and he should apologise to the Chief Justice for having caused embarrassment to him. But what Alagaratnam is doing is exactly the opposite.
Since Alagaratnam says that Sripvan and the JSC should have exercised ‘due diligence’ in recommending Kannan, the natural question that arises is whether there are no due diligence requirements that apply to the Bar Association President? If the President of the BASL writes or verbally communicates a work related matter to the Chief Justice, isn’t he bound to exercise due diligence about what he says or writes? The mistake that Chief Justice Sripavan made in this matter was placing his trust in the BASL President. According to Article 111(2)(a) of the constitution, the JSC has to make recommendations for the appointment of judges to the High Court. Obviously in making such recommendations, the CJ will be informally asking various people for their opinions. Does Alagaratnam’s argument imply that in such instances, the BASL President is entitled to give careless answers or even outright dead ropes to the Chief Justice because the onus is on the JSC to exercise due diligence?
It should also be borne in mind that former Chief Justice Sripavan was an honourable judge who did his best to maintain the integrity of the judiciary in very difficult times and he deserves better than to be pilloried for not exercising ‘due diligence’ because of the trust he placed on the BASL President. This was not all. Alagaratnam’s entire speech at Justice Sripavan’s farewell ceremony was full of justifications of what he had done. He mentioned the names of Justices C.G Weeramantry, Mark Fernando, and Dr. A. R. B. Amarasinghe who were appointed to the Supreme Court from the private bar and said that there has been a rich tradition of the judiciary comprising members of the career judiciary, the official bar and the unofficial bar on a 4 : 2 : 1 ratio and that the Judiciary cannot be under the ‘monopoly’ or ‘control’ of any one of these groups. Apart from such a mix of personnel in the judiciary, Alagaratnam said that emphasis should be placed on merit and competence which should be measured through judicial audit or other mechanisms and that reliance should not be placed on mere seniority for promotions because years sometimes confers only old age on a person.
By this, is Alagratnam implying that he had been pushing for Kannan’s appointment because the latter was inherently superior to the judge who was next in line to be promoted to the High Court. Alagaratnam also said that the Judicial Services Commission which is the body that has authority over the appointment, disciplinary control and dismissal of judges below the Appeal Court should be broad based to include among others, the President of the Bar Association and ‘civil society organizations’ – which means foreign funded NGOs. In the meantime Somapala Gunadheera former civil servant and political commentator in a letter to the editor published in The Island, had buttressed Alagaratnam’s core argument stating that ‘It is the bounden duty of the JSC to satisfy itself that the recommendations it makes to the President for making appointments to the Judiciary are based on proper recommendations’.
Gunadheera goes on to say that though Article 111(2)(b) of the Constitution grants the power to the President to remove a Judge, justice demands that such removal should arise from a fault of the person removed. The argument being made by both Alagaratnam and Gunadheera appears to be, “Ramanathan Kannan became a High Court judge due to the lack of due diligence on the part of the JSC and now that he has been appointed, he should not be removed”! Such an argument cannot hold water in this case because the most serious allegation against Kannan is that he had on an earlier occasion been recommended to Justice Minister Wijedasa Rajapakshe by a political party for appointment as a High Court judge. This crucial matter has not even been touched on in all the arguments going back and forth about Kannan. If he is allowed to continue in the High Court, the message that goes to the lower judiciary and even the AG’s Department is that what counts in judicial promotions is one’s political connections.
U.R.De Silva, the newly elected President of the BASL has inherited the leadership of the most politicized, and tainted professional organization in the country. The reason why he won the BASL Presidency was not however due to any political affiliations on his part but because of the dedication he had put into the work of the BASL. For the first time in many years, the BASL has a chance to end the politicization that has dogged the organization. The out going President Alagaratnam is leaving after having tried to politicize the Judiciary as well by pushing for Kannan’s appointment. There was one vacancy for a Tamil speaking High Court judge. Ramanathan Kannan was appointed from the private bar overlooking D.L.A.Manaf who was next in line to be promoted. Later because of the outcry this caused, Manaf too was promoted to the High Court. Now there are two Tamil speaking High Court judges for one vacancy.
In the meantime the order of promotion in the judicial service as well as the AG’s Dept has been thrown into disarray and most seriously, Kannan is seen as a political appointee by the members of the judiciary as well as the general public. The Secretary to the President has formally written to the Judicial Services Commission requesting a recommendation in terms of Article 111(2)(b) for the removal of Ramanathan Kannan from the High Court. The whole country is now waiting to see what action the new Chief Justice Priyasath Dep takes in this regard.