Faults lie in keeping mum to suffer in silence: watching holders of high office thwart the law is a prime injustice uncontained. Do not take sprats on - when the whales are there for the asking. Most fear, understandably: few don’t. Come on guys, to the forefront.
The Constitution is crystal clear [Article 111 (2) (a)]. The President of Sri Lanka, on the recommendation of the JSC, makes the appointment of High Court judges. In doing so, it is imperative that the JSC consults the Attorney General (AG) and not others - including the President of the Bar Association [BASL] or private lawyers for good reason – as legal practitioners’ in courts can have a personal interest in such appointments. Objections arise under natural justice and the law of apparent bias.
The Chief Justice [CJ] has no role as an individual but has to act in unison with the JSC of which he is a member and chairman. Neither can the President or Secretary of the BASL nor its members or any other person be consulted by relevant parties [JSC and AG] named in the Constitution in making the recommendation but ‘affected parties,’ like the Judicial Services Association [JSA] or the BASL can make representations if their members interest are affected like any member of the public, to a legitimate authority or courts.
Individuals or office bearers cannot participate in the process of making the recommendation at the invitation of the CJ, being contrary to law and is steeped with bias if an appointment is made accordingly.
If busybodies participate in the recommendation process, the appointment could be challenged on valid grounds.
Let me take on BASL President Geoffrey Alagaratnam P.C. at a Q&A session in the Daily Mirror ; placed the CJ in jeopardy, opening to charges of discrimination and acting contrary to the Constitution. If the CJ is unable to provide a reasonable explanation, deserve strictures but if the BASL President by his garrulous and flippant talk misquoted the CJ, must be exonerated comprehensively.
Poor Siripavan, a simple man with simple ways, may lose his public face unnecessarily, if the quotes remain uncorrected. Public presumption is that the contents therein are accurate until denied. The BASL has thereupon issued a sensible statement than its President, but does not exonerate the CJ or its President. Let me touch a single telling point among several other blunders [Example: Right not to hear the JSA if they have a grievance]. If Alagaratnam’s is correct, the CJ has acted in contrary to Article 111 (2) (a) of the Constitution, as it affects the future independence of the judiciary.
Long years of experience, judicial knowledge acquired, legal wisdom gathered and the judicial training of judges obtained, are overlooked by the JSC and a group of ‘ghosts’ unknown to the Constitution appear to play a major role in the recommendation of the named appointee [no fault or blame can be laid at his feet – an honourable member of the Bar] working behind the scenes as trusted friendly bearers of the CJ: such appointment fast tracks the new appointee to high/higher office ahead of the long-serving worthy members of the JSA. They have a grievance that need be ventilated and heard by a legitimate authority but in the words of Alagaratnam –“There is no requirement to discuss with the JSA… protest comes from a minority within.” Yet the action to boycott BASL polls is taken by the JSA. Arrogance is sometimes double barreled!
For brevity, let me take just a question and answer between a mature journalist and BASL President in the Daily Mirror [22.2.2017] for comment. Quote:
Q) It is alleged that this recommendation too comes not from the BASL but from ‘certain individuals’ in it. If judges are being appointed at the behest of the BASL President, doesn’t this give a disproportionate degree of power to one individual?
A) That is a naïve way of looking at it. We don’t assume the negatives. Look at the practice in the past. The CJ would consult the BASL President and others like Faiz Mustapha and Kanag Easwaran.
Who is naïve? Have the previous CJs acted in a manner contrary to the Constitution in consulting persons who are not required for consultation by the CJ alone to enable him to form a view? Two ‘wrongs’ don’t make a ‘right.’ Will such views result in an undue weightage in the final recommendation expressed in favour of a candidate, compiled on the private preferences of private lawyers – worse, it could be termed, views of ‘interested parties’ in presenting names/rejecting names for judicial appointment by legal practitioners appearing in courts?
Firstly, the Chief Justice is not the JSC [the body required by the Constitution to recommend], but a member among three where he presides. The JSC is a juristic body of persons not an individual named ‘CJ’ and such is not named in Article 111 (2) (a) at all. He must act as a person within the body of the JSC. CJ should not arrogate the powers of the JSC to himself alone as held out by Alagaratnam.
"Sorry there is no place in the Constitution to give any right of hearing to Alagaratnam as the captain of the Bar in making recommendations"
In any event, the recommendations of High Court judges flow only from the JSC after consulting the AG. The CJ/JSC too can turn for advice or consultation with the AG; preferable to any favoured private lawyers of CJ’s own choice as recited by Alagaratnam.
Sorry there is no place in the Constitution to give any right of hearing to Alagaratnam as the captain of the Bar in making recommendations. It is the JSC that must consult the AG and not rely on the opinions of the CJ’s favoured Counsel. That is flawed - as the charmed circle of ‘friends of CJ’ can hold ‘personal interests’ in the recommendation and it is discriminatory conduct on the part of the CJ, if true. The framers of the Constitution left out the legal fraternity individually or collectively, in their wisdom, as there could be allegations of apparent bias. Don’t blame the Counsel consulted as they cannot decline to express an opinion if requested by a misled CJ who should know better not to consult a few or any practicing lawyer/s or Alagaratnam in making the recommendation. This is a lesson for the future judges to keep to the law and wise men elected to lead the Bar must be disciplined in their speech and maintain cordiality with the judiciary. We now live in a breakdown situation.
Secondly, where in the Constitution is there provision that gives the Chief Justice a right to consult two or more favoured Counsel of his choice in recommending the appointment of judges? That gives the impression, if Alagaratnam is accurate, the judicial officer nominated by the JSC is made after consulting Messer’s Mustapha and Kanga – Easwaran or Alagaratnam or any other Counsel at the whim and fancy of the CJ; unfair by other Counsel – senior, eminent and respected. Are they the ‘favoured few’ of the Chief Justice of that moment?
As an ordinary Counsel, I may have to raise the issue of natural justice if the CJ gives or has given discriminatory favoured hearings or judgments that are contrary to law to his favoured few Counsel, in view of the present developments.
CJ, in terms of the Constitution, is not entitled to consult parties that can have an interest in the final appointment, as the President of Sri Lanka is bound to follow the recommendation of the JSC unless for very good reasons. The CJ is certainly entitled to seek the opinion of suitable candidates from the AG or if in doubt of the proper procedure to interpret the Constitution with other learned judges in his own court (if he has confidence in them), rather than turn to private lawyers in whom he has lone faith on matters in the public domain that could in the public perception be deemed as interested parties.
Thirdly, as the CJ leaves the bench, it is sad to say, if true, leaving behind practices and precedents that need be deprecated unless the views expressed by Alagaratnam are erroneous. Nevertheless, CJ is in the epicenter of an unnecessary controversy, which a mature and sensible Bar Association President should have avoided to bring about at all cost.
Fourthly, CJ appears to give a hearing to the BASL President, notwithstanding he too is a lawyer in active practice in law and cannot be consulted by the CJ as it only the Attorney General and the JSC that can come into play in making the recommendation of a High Court judge.
In a nutshell, a justice must not engage in public acts with a personally trustworthy and friendly ‘group of lawyers’ in seeking opinions on matters related to justice, as he could always consult his fellow members in the Supreme or Appeal Courts if uncertain in the practice of the proper procedure to be adopted. Yet, the ‘party affected’ predominantly, JSA need not be consulted is the view expressed by Alagaratnam. That is a practice contrary to the law of writs, especially when the CJ is consulting parties unnamed in consultation whereas affected parties (JSA) are left in the lurch.
Any man learned in the art of law would have cautioned the CJ making nominations based on hearing the opinions of his ‘friends’ as being not the best practice to adhere.
Alagaratnam attempts to father a faulty precedent on previous CJs too, which is unfair by great CJs like Tennekone and Samarakone.
"Who is naïve? Have the previous CJs acted in a manner contrary to the Constitution in consulting persons who are not required for consultation by the CJ alone to enable him to form a view? Two ‘wrongs’ don’t make a ‘right’"
Fifthly, it gives the impression that some Counsel could be equated as potential ‘king makers’ and be so considered by the members of the judiciary/bar as have been in a favoured circle of the CJ for recommendations and promotions. An unfair advantage/disadvantage could accrue to them.
Are you fair, CJ or BASL President by other members of the association to give a message to the judiciary/litigants and public of just a few named members of the association as useful participants for judicial upward/downward mobility [causing embarrassment to such counsel too, as they might be the subject to unnecessary and improper controversy/ conduct/ antagonism among judges, members of the bar, litigants and the public].
Alagaratnam , if you were familiar with the Constitution, you could have saved the CJ by drawing attention to the law without embarrassing him in public by imputing wrong practices with your flippant words and placing him on an inappropriate pedestal.
There is something wrong somewhere as the CJ could gain valuable insights if he consulted his fellow judges – they would have read/interpreted the law and advised the CJ on the proper procedure, rather than rely on the wisdom of three wise men named and others, fortunately for them unnamed?
A new CJ is soon to be appointed, and the appointee should remember that he/she is not above the law: many forget this golden rule till reminded by society on retirement.