11 December, 2017

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Irregular Appointment Of High Court judge Threatens Independence Of The Judiciary

By Mahinda Rajapaksa

Mahinda Rajapaksa

The Judicial Services Association of Sri Lanka has strongly objected to the appointment of Mr 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 Mr 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. Mr 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 Mr Kannan’s appointment at 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 Mr 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 Pieris 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 Mr 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.

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Latest comments

  • 2
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    Bensen Burner.

    Dont be too hasty Ben.Everyone knows[Perhaps with the exception of G.L.Peiris] how MaRa abused his Presidential powers.The list is indeed very long and it is now a permanent blotch on the political landscape of this country.My comment was only on a matter of Principle.The fact that it is an essay of MaRa or for that matter an essay of yours will not affect the Principle involved! The comment above by Ordinary Lawyer,if authentic,sets the record straight-There has been no political party involved.Fine! Lets not penalise young Kannan!

    • 1
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      One should pose the question MR has the right to talk about the kind of appointments ?

      He was the king to abuse almost everything, but just because of grass eating folks back him further, he behaves alike Mugabe.
      He does not know from what he is talking..

      All these men are born jokers. MR has gone beyond all unethical and morals… so he should be the last to talk on the kind of appointments.

  • 2
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    Jagath Fernando.

    Mark Fernando was deprived of being CJ and in his place Sarath.N.Silva was inducted.That was the beginning of the erosion of the Judiciary.Mark Fernando was a third generation Judge of the Supreme Court.His father Justice H.N.G.Fernando was also CJ,and his grandfather Justice V.M.Fernando was also a judge of the Supreme court.Interestingly,HNG mounted the Bench straight from the Legal Draughtsmans Department!

  • 1
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    OMG .look who’s talking ? Nut house on fire ,only Sri Lankans are forgetful and will not react . Is he forgetful of what he did ?,or is cheeky to the core or he truly believes all the citizens are bunch of idiots ..

  • 0
    0

    Tamil Communalism – The Inside Information on Ramanathan Kannan, the new High Court Judge

    The real issue is that of the next five person in seniority for high court appointments, are 3 Sinhalese and 2 Muslims. Tamils want a Tamil but they have a long wait.

    One Lawyer from the East, Perinparajah, approached A. Gnanathasan (rtd. Addl. Solicitor General where the CJ became close to Gnanathasan when he too was there). Gnanathasan had played in important role in getting the CJ’s help in the former Eastern VC’s case against the appointment of Dr. Jeyasingam who was appointed VC. (Lawyer Mustapha who represented the former VC expressed incredulity to his client at the CJ’s ruling in that case).

    Gnanathasan roped in Geoffrey Alagaratnam and went to the CJ. It was agreed that the five senior persons would be sent up and then Kannan. But for some reason the President did not appoint one of them. This was an obstacle to Kannan. As the CJ’s retirement date approached, it was decided to push Kannan through provided the right recommendations were there. This was done and Kannan became a high court judge.

    Muslims are very upset. The most senior District Judge, Vavuniya’s D.L.A.Manaf, is very upset. The Unions are upset that senior judges might need to wait for 15 years if Kannan remains in service and blocks their appointments.

    Justice Minister Wijedasa Rajapakshe had informed the Judicial Services Association that a political party had requested him that Kannan be appointed. This cast suspicion on Mr. R. Sampanthan. Skeptics aware of Sampanthan’s integrity, especially after Sampanthan denied it, thought it was Sumanthiran until those looking into it established the Gnanathasan connection.

    The President is convinced he was misled but is said to be worried that if he removes Kannan, it would lead to an FR case since he no longer has immunity, and, worse, set a bad precedent and excuse if ever Rajapakse comes back!

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