Sunday, February 19, 2017
Heated controversy surrounding the recent appointment of a Batticoloa lawyer as a Northern High Court judge by President Maithripala Sirisena raises a fundamental point of contention. Even on the most innocent of explanations, ‘leaders of the Bar’ must refrain from putting themselves into situations where a disturbing lack of clarity arises in regard to precisely where the formal role of the Bar Association of Sri Lanka (BASL) ends and where individual identities as legal professionals begin.
Unfortunate context of these questions
This problem surfaced in public after the BASL was challenged by the Judicial Services Association (JSA) to disclose exactly what part the Bar played in that appointment. This was on the basis that the BASL had no business to be informally lobbying without the seal of its executive body, either per se or on behalf of another interested party, for a particular judge to be appointed.
The JSA had asked this question after both the Chief Justice who is the head of the Judicial Service Commission (JSC) which is constitutionally vested with the duty of recommending appointees to the High Court and the President had justified the appointment of this High Court judge as due to a request made by BASL.
It is unfortunate that this question as to the manner and process of interventions of the unofficial (private) Bar into judicial appointments had to surface in adversarial circumstances which has put this particular judge, who was by all accounts a competent professional, into the centre of the storm. However, it is useless for the BASL or others to thunder that the process of judicial appointment in this case has been politicized when the behaviour of its responsible officers has been monumentally indiscreet, even to the charitable mind.
Bemused and bewildered onlookers
In terms of the relevant constitutional provision (Article 111(2)), the Bar is given absolutely no role to play in the appointment of High Court judges. The JSC is only obliged to consult the Attorney General when recommending an individual for appointment. Accordingly even those explanations offered by the Chief Justice and the President that the appointment was made on the request of the BASL do not pass muster in terms of the law.
Even so, the question goes further. The JSA’s objections had been based on several factors. First the JSA was perturbed that neither the Bar Council nor the Executive Committee had been apprised of the support extended by BASL for the appointment, to all intents and purposes.
Secondly, the JSA had been informed by the Minister of Justice that ‘some elements’ in BASL had supported this appointment on the request of what was referred to as ‘a certain political party.’ For bemused and bewildered onlookers watching this drama, it became apparent only later that this reference was to the Tamil National Alliance (TNA), when the TNA took upon itself to vehemently deny that charge.
But the BASL’s response to the JSA, given its flippant nature, only made the situation worse. Its Secretary’s letter, released to the public by civil action groups this week, explained that the incumbent President of the Bar Association had forwarded a letter by the Batticaloa Bar supporting the appointment of this particular Batticoloa lawyer as a High Court judge to President Maithripala Sirisena. This was given the pancity of Tamil speaking judges in those provinces.
The ‘recommendation’ that never was
However, what is considerably intriguing is the last paragraph of that letter which is garbled. The first part of the paragraph refers to past practice of ‘consultations between the executive and the leaders of the Bar,’ where appointments have been made (to the judiciary) from the private Bar. However that part contradicts the last part of that very paragraph where it is said that ‘in the history of the Association, the Bar Council and the Executive Committee have not considered recommendations for judicial appointments.’
So in other words, the inference is that when the President of the Bar Association formally forwards a request regarding the appointment of a particular judge (presumably on the letterhead of the Association) to the President of the country, he or she is doing so as a ‘leader of the Bar’ and not as the ‘President of BASL”? This appears to be a distinction without a difference.
Hence we have the natural confusion of both the Chief Justice and the President who had apparently succumbed to the understanding that the BASL had formally approved what amounted to a ‘recommendation’ for judicial appointment.
Further twists in the tale
In addition, the BASL Secretary’s letter to the JSA fails to mention twists in the tale which came from the President himself when, speaking at the National Law Conference. In media reports that have not been denied, the President had adverted to the fact that the support of BASL for this appointment had not stopped at merely forwarding a letter.
Instead, and after he had not responded favourably to that request, he had been visited by a delegation of the Association. Apparently it was only following that visit that the President had gone ahead. That President Sirisena pleaded mea culpa in giving into that pressure underscores the impossible position that he was put in. But all this is omitted from the BASL letter. So one is confronted with the question as to who is engaging in a ‘terminological inexactitude’ as Winston Churchill classically described, decades ago. Or in other words and to be brutally clear, who is lying or at best obfuscating?
Opaque practices need to be remedied
Certainly these are opaque and unsatisfying practices that need to be remedied if the Bar is to conform to those norms of good governance that it so loudly espouses. It is to no avail to ponder the virtues of a new Constitution or quote Dicey on the Rule of Law in one donor supported discussion after another, if basics are not adhered to in the first place.
Indeed, Sri Lanka may well learn from the fascinating real life drama of democratic checks and balances being played out now in the United States where, at least for the moment, an aggrandizing US President has been checked by the courts amidst wickedly satirical humor. Outstandingly principled positions have been taken by lawyers, academics and judges themselves.
This is no doubt, eminently illustrative for us.
