Appointing Judges From Unofficial Bar: BASL President In Hot Water
By Sarath Wijesinghe –February 22, 2017
Sarath Wijesinghe
Appointment of a High Court Judge from the Unofficial Bar
The thorny issue on the appointment of the High Court judge from the private Bar is brewing fast at a rapid phase, with conflicting statements, from various sources. Justice R Kandiah Kannan is appointed from the Batticaloe Private Bar allegedly on the recommendations of the Bar Association, which is the only statutory body of Attorneys- at – law in Sri Lanka established in 1974 with the merger of then professions Advocates and Proctors creating a powerful professional body of renamed as Attorneys- at – Law, which catalysed and initiated the formation of the Organization of Professionals which is the professional body of the majority of recognised professional associations in Sri Lanka. The powers of appointment of High court Judges outside the accepted and legal procedure is laid down in the Constitution to be enforced on special circumstances strictly on the advice of the Judicial Service Commission established under the same chapter. It is a mandatory requirement that the JSC should advice the President on the appointment on their own initiative and merits of the candidates free from influence or interference of political or other considerations. It is not clear on what basis the JSC could select candidates from the service, which is the normal procedure.
The Law
Article 111(1)
“There shall be a High Court of Sri Lanka, which shall exercise such jurisdiction and powers as Parliament may by law vest or ordain. ] (2) The Judges of the High Court shall be appointed by the President of the Republic by warrant under his hand and be removable and be subject to disciplinary control by the President on the recommendation of the Judicial Service Commission established under this Chapter. (3) Subject to the provisions of paragraph (2) of this Article, Parliament may by law provide for matters relating to the retirement of the Judge of such High Court. It is abundantly clear that the President has the mandate to make the appointment at his wish and will.
Article 111(A) Commissioners of the High Court.
Where the Minister in charge of the subject of Justice represents to the President that it is expedient that the number of the Judges exercising the jurisdiction and powers of the High Court in any judicial zone should be temporarily increased the President may, by warrant, appoint one or more Commissioners of the High Court to exercise the jurisdiction and powers of the High Court within such judicial zone as is specified in the warrant of appointment of such Commissioner of the High Court.” This procedure permits Ministerial intervention unlike the previous Article in which the it is not imperative, but always complementary in the practice of good governance.
112(1) the Judicial Service Commission
There shall be a Judicial Commission which shall consist of the Chief Justice, who shall be the Chairman, and two other judges of the Supreme Court appointment of the President of the Republic.
It is clear that the President has power to appoint High Court Judges at his will and following conventions and practices which are discretionary.
A Constitutional Requirement?
Though not a constitutional requirement, it is generally the practice and the convention to consult the Minister of Justice and the Bar Association as a matter for safety, courtesy and guidance to the President in such appointments on exceptional situations. Whether this procedure was followed previously is a mot issue though it is not in the public domain, it is obvious and imperative that the Judicial Service Commission shall recommend with the Attorney General is “nod” as the advisor of the State and the President. Then how was the appointment initiated?, and recommended to the Judicial Service Commission, as JSC can recommend the appointment to the President only from and among 66 serving judges awaiting for promotions, who apparently have shown the strong protest by refusing to take part as returning officers at the BASL election which is postponed indefinitely which is considered to be a matter of serious nature. By Convention the Judges act as returning officers of BASL elections and the AG on the apex body in conducting and supervising election procedure.
President made it clear in the presence of the President BASL, and the Chief Justice at a function that Bar Association has made a request, when the Minister of Justice denies of any knowledge or involvement on any such appointment. President’s position is substantiated by a statement by a group of lawyers responsible for the Regime Change, using the phrase “Upon a nomination by the president BASL, and not from the Executive body, recommendation was made” which is unconstitutional and irregular as the President BASL is bound to act strictly on the advice and directions of the Executive Body alone. He cannot take arbitrary decisions which are illegal and unconstitutional.
Issue has become still complicated by the statements of the former President and former Foreign Minister alleging involvement of a political party in the recommendation process requesting the President to make the appointment under his powers and prerogative, which is rarely used. Making matters worse the Secretary of the Bar Association has denied any involvement or connection by the Secretary as the Chief Executive officer. Bar Council which is the Executive Body of the Bar Association deciding on all issues pertaining to the Association. Neither the President of the Bar Association nor the Social and active groups except a pro government group of lawyers have made any comments or statements, on this thorny issue of paramount importance to the independence of Judiciary. Dead silence by the social groups’ active in the campaign of good governance and independence of the Judiciary is raising eyebrows of the public awaiting action on the issue close their hearts of adjudication of justice and maintenance of Rule of Law.
Logically and constitutionally citizen is bound to believe the convincing statement made by the President on the issue and it is clear that the Bar Association should not dabble in politics or appointment of judges. Bar Association had an ugly history in dabbling in politics and the citizen still remembers by the BASL in the role played in the Regime Change process, for which the President of BASL was amply compensated with a plum office, and using USA aid by allowing them to function in the BASL premises and using data which are confined to the Lawyers alone. The “Hulftsdrop Gossip” is that the current Leader BASL is looking for a plump diplomatic appointment in a powerful western state, by killing two birds from one stone. Judges are appointed from and among the official and unofficial Bar with strict procedures adopted by the JSC alone with no political or any kind of interference. Head of the State and the Executive is expected to perform the sacred duty of the appointment of judges with great care, and impartiality appointing fit and proper learned and respected in the profession.
First Appointment of this nature based on Article 111(A)
The President made an appointment of appointing a retiring High Court Judge under Warrant for a specified period, despite protests from the Bar Association, after she discharged Hon Ravi Karunanayaka from the charges on a technical ground on the controversial case involving millions of foreign dollars connected to disgraced Raj Rajartnam – a USA ballooner national of Sri Lankan origin. The current appointment is the second appointment under the first part of the Article, which is rarely used on extremely circumstances. Protest from the Bar was not considered seriously.
