by Nirmala Kannangara
- Judicial Services Association is of the view that appointing a High Court Judge from the Unofficial Bar is a violation of the Constitution
- According to sources, although the Chief Justice had given his concurrence on the appointment it had been made on ‘request’
- Executive Director CaFFE, Attorney-at-law Keerthi Tennakoon says it is puzzling as to why certain fractions in the legal field are saying that this appointment is illegal
President of the Bar Association of Sri Lanka President Counsel Jeoffrey Alagaratnam says that he recommended the appointment of R. Kannan as a High Court Judge to President Maithripala Sirisena in concurrence with the Judicial Service Commission and the Attorney General.
According to Alagaratnam, the Judiciary does not comprise with only carrier Judicial Officers, but includes members of the Unofficial Bar as well as from the Attorney General’s Department.
“There has been a shortage of Tamil speaking judges and when Kannan’s name was recommended by the Batticaloa Bar Association, I as the President of the Bar Association of Sri Lanka (BASL) followed the proper guidelines and recommended his name,” Alagaratnam said.
However, Judicial Services Association is of the view that appointing a High Court Judge from the Unofficial Bar is a violation of the Constitution.
A senior member of the Judicial Services Association who is holding a high post in the Judiciary on condition of anonymity accused President Sirisena for interfering with the judiciary appointment which has raised concern amongst those who are in the judicial service. “The President is the Executive of this country and has the authority to make appointments not by violating the constitution but according to article 111 (2) (a) of the Constitution on the recommendation of the Judicial Service Commission and the Attorney General. There was a time when politicians controlled the judiciary but those who came to power promising good governance should not follow the same path of their predecessors,” sources added.
According to the sources, although the Chief Justice had given his concurrence on the appointment it had been made on a ‘request’.
Meanwhile Executive Director CaFFE, Attorney -at-law Keerthi Tennakoon said that when there are many instances in the country’s judicial history, number of people that did not belong to the judicial service or the Attorney General’s Department, have been appointed as Supreme Court, Appeals Court and High Court judges, it is puzzling as to why certain fraction in the legal field is saying that this appointment is illegal.
“Among them are Christopher Gregory Weeramantry, Neville Samarakoon, Mark Fernando, Shirani Bandaranayake, Dr ARB Amarasinghe, Dr Ranjith Deeraratne, Priyantha Jayawardane, Prasanna Jayawardane and Suresh Chandran who are among the most renowned judges we have had. We have always appointed suitable and qualified attorneys from the private bar as Supreme Court, Appeals Court and High Court judges, when the occasion demanded it,” Tennakoon said.
Meanwhile Tennakoon said that it is hilarious for the former President Mahinda Rajapaksa to accuse the present President for making Kannan’s appointment violating the constitution claiming that he appointed only one member from the private bar to the Supreme Court.
“It was Rajapaksa who appointed both Priyantha Jayawardane and Suresh Chandran as Supreme Court judges while appointing Mohan Peiris, who was being paid by the government consolidated fund as Central Bank legal advisor and advisor to the Cabinet, as the Attorney General. Later he appointed Peiris as the Chief justice, replacing Shirani Bandaranayake, in an unconstitutional manner. Having done that it is hilarious for Rajapaksa to tell that the High Court Judge’s appointment threatens independence of Judiciary,” Tennakoon claimed.
According to Tennakoon, Rajapaksa in a press statement has stated that if this judge was appointed, based on the recommendations of a political party, this would be a blow to the foundation of judicial independence. “The political party he alludes to is the Tamil National Alliance (TNA) which is ironical, because the TNA is not at all pleased with the appointment of Kannan as he belongs to the estate sector Tamil community and comes from a different caste,” he added.
Tennakoon further said how Rajapaksa was speaking of the appointments from the Attorney General’s department to the judiciary. “He implies that his appointments to the judiciary from the Attorney General’s department were without any controversy and that the best persons were appointed. It seems that he has forgotten he appointed two officers from the Attorney General’s department – 8th and 13th in seniority to the Supreme Court while the person that was appointed to the Court of Appeal was 10th in seniority. During this time, S. Sri Skandharaja was the President of the Court of Appeal Court but he was denied the opportunity to be a Supreme Court judge on five separate occasions during the Rajapaksa administration. The reason for this was because he made a statement that the removal of Chief Justice Bandaranayake from her position was illegal. Meanwhile Rohini Marasinghe who was junior to Skandharaja was appointed a Supreme Court judge and Skandharaja, who was disillusioned because he was continuously denied the opportunity to become a Judge of the Supreme Court judge, died due to a sudden illness,” Tennakoon claimed.
According to Tennakoon, the biggest honour an attorney-at-law can receive is to become a President’s Counsel. “Mahinda Rajapaksa lowered the prestige of this position by elevating a large number of attorneys to this position, mainly for political reasons. These wholesale appointments destroyed the prestige of being a President’s Council and a number of renowned attorneys refused the ‘honour’. Attorney SL Gunasekara, known for his outspokenness and principals, refused to be made a President’s Council stating ‘if someone is to give me an honorary position, the person who grants me that post should be a honourable person,” alleged Tennakoon.
According to Tennakoon, the attorneys-at-law that were made Presidents Counsel in large numbers are now unofficially referred in courts as the lawyers of the President. “Now there is no status to this prestigious position as most of the lawyers who have supported Rajapaksa became a Presidents Counsel. Earlier this position was given only to those who have made a good name in the legal field and those with the highest educational background. After destroying the entire judiciary system in the country, how can Rajapaksa now claim that the High Court Judge R. Kannana’s appointment is a threat to the independence of the judiciary,” Tennakoon added.