Judicial Appointment In Turmoil

by Gandhya Senanayake

  • The appointments to Sri Lanka’s highest court the Supreme Court is made by the President with the nomination of the Parliamentary Council while the Judicial Service Commission makes all other appointments
  • The most recent appointment to draw flank from several parties, including the Judicial Service Association was the appointment of Ramanathan Kannan an Attorney-at-Law from the private bar of Batticaloa
  • The Bar Association of Sri Lanka who at present has a distant approach to the current stance holds the view that the Judicial Services Commission could only go recommending the removal of the judge on disciplinary grounds.

Wijedasa Rjapakshe

The Sri Lankan judicial system, which is a fusion of English Common Law, Roman-Dutch Civil Law and Customary Law is considered the last resort of the common man to peruse their grievances. As such, everyone alike holds the Sri Lankan court system highly as the apex of justice.

The judicial appointments to Sri Lanka’s judiciary hold a prominent and important place. As an independent arm, its appointments are highly anticipated and looked upon by all parties in society. Throughout its history some appointments have been looked down upon as politically motivated or as being used to achieve the goals of certain political parties or politicians.

In the recent past the scenario which arose with former Chief Justice Shirani Bandaranayke who proceeded and succeeded former Attorney General Mohan Peiris, considered the 43rd de facto Chief Justice of Sri Lanka after President Maithripala Sirisena declared his appointment void in 2015, brought about such confusion.

The appointments to Sri Lanka’s highest court the Supreme Court is made by the President with the nomination of the Parliamentary Council while the Judicial Service Commission makes all other appointments. However, there are some special provisions where the president could appoint other judicial members. In its long-standing history, it has also been customary to promote those in the judicial services to higher positions or appoint members from the Attorney General’s Department considering their seniority and merit. In several instance members of the private bar also has been given judicial appointments.

The most recent appointment to draw flank from several parties, including the Judicial Service Association was the appointment of Ramanathan Kannan an Attorney-at-Law from the private bar of Batticaloa. The appointment is said to have been made taking into consideration the long term shortcoming of Tamil speaking judicial officers, which opponents of the appointment state that could have been mitigated by promoting or appointing other members in the judicial service to the said position.

When contacted Minister of Justice Wijedasa Rajapaksa stated that the appointment was done according to the powers vested in the President and Justice Ministry had in no involvement in the matter.

 

The JSA wants Kannan out

 

The Judicial Service Association (JSA) on  April 1, 2017 passed five resolutions including one pursuing the removal of High Court Judge Ramanathan Kannan from his office. The JSA goes on to state that such appointments from the unofficial bar undermined the knowledge and hard work of the judicial service members who work making sacrifices throughout their long careers.

 

JSA Resolutions

Summary of Resolutions adopted by the Judicial Service Association on April 1, 2017 – Emergency General Meeting:-

1.      The Judicial Services Commission respectfully request the President to remove High Court Judge Ramanathan Kannan from the said position as the his appointment does not have force or avail in law. Further, the JSA states that the Judicial Services Commission (JSC) and the Bar Association of Sri Lanka (BASL) has also reconfirmed that the recommendation has no force or avail in law.

2.      Secondly the JSA respectfully request the Judicial Service Commission to recommend that due to  appointment of Ramanathan Kannan having no force or avail  in law he be  removed from the position of High Court Judge.

3.      Thirdly, the JSA requested that the Judicial Service Commission not allow Ramanathan Kannan to carryout his duties as High Court Judge until his removal by the President.

4.      Fourthly the JSA reaffirming its 1st and 3rd resolutions states that by the appointment of Ramanathan Kannan as a High Court Judge the judicial independence has been violated and that steps should be taken by the President and the Judicial Service Commission to restore the independence of the judiciary.

5.      The Judicial Service Association further states that by appointing members from the unofficial bar undermine the knowledge, experience and sacrifices made by the District Judges and Magistrates who work under immense pressures and difficulties for long periods of time in difficult areas during their career.

 

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BASL Election Goes On

In the light of the appointment of Ramanathan Kannan as a High Court Judge in March the Judicial Services Association which customary provide members from the lower judiciary to precede over the BASL elections boycotted the event, giving in return the BASL several conditions to reconsider the participation

The BASL circumvented the issue of the JSA members’ participation and held its election by amending its Constitution.

The Bar Association of Sri Lanka who at present has a distant approach to the current stance holds the view that the Judicial Services Commission could only go recommending the removal of the judge on disciplinary grounds. Further, it holds the view contrary to the JSA that appointments made from the unofficial bar to the judicial services according to the relevant criteria would and have been beneficial in furthering justice. The BASL further requests the President to consider recommendations made by the BASL from time to time and just direct appointments have in many cases been very successful.

It is yet to see what steps will be taken by those in power to fully bring to an end the tug of war in our judiciary.

 

 

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Press Release Issued By Mahinda Rajapaksa

The Judicial Services Association of Sri Lanka has strongly objected to the appointment of Ramanathan Kannan, a lawyer practicing at the private bar in Batticaloa, as a High Court Judge. 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.

This system of promotion based on seniority and merit is one of the pillars on which the independence of the judiciary rests. On very rare occasions past governments have appointed eminent members of the private bar as Supreme Court judges. Former CJ Neville Samarakoon and Justice Mark Fernando came into the Supreme Court in that manner. In the nine years that I was President, I appointed only one Supreme Court judge from the private bar. No members of the private bar were appointed to either the Court of Appeal or the High Court by my government.

Minister of Justice Wijedasa Rajapakshe had informed the Judicial Services Association that a certain political party had on an earlier occasion requested of him that Ramanathan Kannan be appointed to the High Court – a request he had turned down. The appointment of a judge on a recommendation made by a political party would have struck at the very foundations of judicial independence. Kannan has been appointed to the High Court over the heads of dozens of senior members of the judiciary and officials of the Attorney General’s Department. The Judicial Services Association has pointed out that if the need was to appoint a Tamil speaking judge for the North and East, the District Judge of Vavuniya D.L.A. Manaf would have been the most qualified candidate. Nobody would have objected if a Tamil speaking candidate of suitable seniority and competence had been selected for this position from within the judicial service or the AG’s Department.

The Judicial Services Commission had told the Judicial Services Association that they recommended Kannan’s appointment on a request made by the President following representations made to him by the Bar Association of Sri Lanka. The President also said at a public gathering that he had made this appointment on a request made by the BASL. However, the Secretary of the Bar Association of Sri Lanka has informed the Judicial Services Association that they had not made any such recommendation. Therefore this request has come only from certain individuals in the BASL. In any case, the Bar Association of Sri Lanka has no constitutional, legal or moral right to make recommendations for the appointment of judges.  If the private bar is given the power to recommend the appointment of judges, that would corrupt the entire legal system with judges being dependent on the lawyers appearing before them for promotions and appointments.

Some office bearers of the Bar Association played a major role in toppling my 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. The reason why Kannan was made a High Court judge over the heads of many dozens of serving judicial officers and Senior State Counsel in the AG’s Department is also obviously to reward a certain political party that provided a block vote to get the President elected. The message that this sends out to the judiciary is that what counts is not one’s competence or probity as a judge but one’s political connections. This is a government that started off by terrorising the entire judiciary by sacking the then Chief Justice with just a chit from the President’s Office with the connivance of certain office bearers of the BASL. The previous President of the Bar Association was given a plum political appointment by this government as a reward for his services. The constitution and the standing orders of parliament have a procedure to remove judges with charges being presented, hearings held, reports tabled in parliament and finally a vote taken in the supreme legislature. The actual power to remove judges of the superior courts rests with the legislature, not the executive. But in a demonstration of what this government was capable of, Chief Justice Mohan Peiris was simply chased out of office through executive fiat. Having started in that manner it is not surprising that this government is now making judicial appointments on recommendations from their political allies.

Everyone in this country knows that the Bar Association is politicised in a way no other professional body in this country is – whether it be that of engineers, doctors, architects, planters, public administrators, or accountants. The press had reported of a group within the BASL which controlled among other things the foreign funding that the BASL received. From what now transpires, it is this political group within the BASL and not the BASL itself that had made this recommendation to appoint a person described as a political party nominee to the High Court. Being a lawyer myself, I wish to call upon the legal fraternity to take resolute action to end the politicisation of the Bar Association of Sri Lanka and most importantly, to get the President to reverse the decision to appoint Ramanathan Kannan to the High Court as requested by the Judicial Services Association of Sri Lanka. It is essential to abide by the accepted practice in making judicial appointments so as to safeguard the independence of the judiciary.

3 Comments for “Judicial Appointment In Turmoil”

  1. srilanka judical is not different from mr Rajapaska government ,mr Mahan peries wanted criminal judge in srilanka judical , ms bandranaka was removed was illegal minister of justce mr Rajapaska in fearing in judical is immoral, srilanka prisons was full of tamils with out case taking revenge by government,

  2. Colombo Lawyer

    The culprit who caused this terrible situation is the former President of the BASL and we were the fools who allowed this person to become the president of the BASL without a contest.

    He has now brought about disrepute to the enture legal profession in the country.

    Will the BASL take disciplinary action against him for his professional misconduct.

  3. All intelligent people should ask the former President of his moral right to question about any politicised issue in this country, as he was the emperor of politicizan of everything from top to bottom. At the same time the people should ask the present President that it is only “”Hiriottappa”" ( shame and fear to do a wrong thing as Lord Buddha clearly disclosed at the bottom of the world administration and so does the President who often unloads sacs of words and not intelligent opinion whether he follows this advise.. What sin have we Sri Lankans committed to get a chief executive who are keen to follow the same path as has been proved from the First to the present except the brief lap of time of Late meritorious President D.B. Wijetunga

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