Alagaratnams attempt to tarnish

Sripavans legacy-*Kannan still

remains HC judge-*U.R. de Silvas
unenviable challenge

by C.A.Chandraprema-March 18, 2017, 6:53 pm

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 Generals 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 everybodys
progression up the ladder for years if not decades to come. These
are existential issues for those in the judicial service and the AGs
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 AGs 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 AGs 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 Kannans 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 Kannans 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
Kannans 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
Sirisenas 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 BASLs
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, hes 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, isnt 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 Alagaratnams 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. Alagaratnams entire speech at Justice Sripavans 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

Kannans 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 Alagaratnams 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 AGs Department is that what
counts in judicial promotions is ones 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
Kannans 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 AGs 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.
Posted by Thavam