Controversy over BASL role in Judge’s appointment – what really happened

The appointment by President Maithripala Sirisena of Ramanathan Kannan as a High Court Judge has opened up a controversy after the Judicial Service Association (JSA) protested the appointment. The JSA has called on the Chief Justice and Judicial Service Commission (JSC) to reconsider their decision and to recommend his removal, citing Article 111 (2) of the constitution (which says that High Court Judges shall be appointed on the recommendation of the JSC after consultation with the Attorney General). The JSA argues the interests of the minor judiciary are affected by the appointment. When the JSA inquired about the appointment from the JSC, the Chief Justice had, according to reports, indicated that the recommendation was made at the request of the President at the behest of the unofficial bar.  

A crisis of sorts has emerged with the BASL elections, which are now due, having to be postponed on account of the JSA refusing to act as presiding officers according to custom. In his remarks at the inauguration of a law conference on February 15, 2107, the President sought to clarify his actions, saying ‘many organizations in the legal field’ had written to him expressing concerns over the appointment. He explained that he had received a letter from the Bar Association of Sri Lanka (BASL) requesting the appointment as there was a dearth of Tamil-speaking Judges.

 He had turned down the request initially. It was only after a delegation of the BASL led by its President met him and again urged him to make this appointment that he sent this nominee’s name along with others to the ‘higher legal authorities,’ the President said. He emphasized that he had not acted unilaterally. 

To any who listened to these remarks it would appear that the president had been somewhat embarrassed by the 
entire episode. Against this backdrop of insinuations that there was something irregular about what transpired, the Dailymirror  spoke to BASL President Geoffrey Alagaratnam on the phone. He vigorously defended his actions, and said that allegations regarding ‘politicisation’ of the BASL were ‘balderdash.’   
Excerpts from the Q & A:  

 As President of the BASL, what made you go to such lengths to seek this appointment?  
For the past one and a half years there has been a shortage of judges in the North and East. Members of the BASL from those areas have been complaining. We took it up with the JSC, around April – May last year we met them. Judges were being given one year extensions. The Attorney General was saying he had no officers (from the AG’s department). 
He said if you have suitable people in the unofficial bar go ahead. Kannan was recommended as far back as in September by the Batticaloa Bar Association. He is trilingual. I consulted other lawyers. I sent his papers to the President in September with copies to the CJ and Ministry of Justice. There were two more appointments – from the Eastern Province (a retired person) and from Jaffna (who had been there for two years). It’s not a good precedent to keep extending the term (of such officers). A High Court Judge appointment needs the concurrence of the CJ and the AG, all of them approved it.  

 Was there another aspirant – one Mr. Manaf, who was overlooked?  
Manaf was not better qualified.  

 One of the complaints is that this appointment was not endorsed by the BASL’s Executive Committee or the Bar Council...  
There has been a tradition of maintaining a balance of 4 career Judges, 2 from the AG’s Department, and 1 from the unofficial Bar. I consulted the BASL branch organizations (there are 76 of them). It is not customary to go to the BASL Executive Committee or the Bar Council.  

 Has there been any precedent in appointing a High Court Judge solely on the recommendation of the BASL President?  
The BASL has been playing a more active role (in recent times). I got a letter from the Batticaloa Bar Association, and I did my own verification. The issue of a shortage of Tamil-speaking Judges has been (previously) taken up with the CJ and the Bar Council.  The JSA has given false information that Kannan ‘failed an exam’ for a Magistrate’s appointment (for High Court appointments there are no exams). Kannan is honest. He told me he never wanted 
to be a Judge.  

 There are reports that a ‘political party’ (insinuating that it is the TNA) sought Kannan’s appointment from the Justice Minister, and that it was turned down..?
No political party approached the Minister of Justice.  Definitely not the TNA.     

Why is the JSA up in arms over this appointment?  
There is no requirement to discuss it with the JSA. They have no prerogative to make recommendations. This (protest) is not from the JSA but a minority within the JSA.  

 It is alleged that this recommendation too, comes not from the BASL but from ‘certain individuals’ in the BASL. If Judges are being appointed on the sole recommendation of the BASL President, doesn’t this give a disproportionate degree of power to one individual?  
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, Kanag Easwaran. We want capable, competent judicial officers. There is nothing wrong with the BASL President, who knows the pulse of the Bar and the Judiciary, making such a recommendation. Kannan came with two recommendations. You can always find fault ...  

 Was there any external pressure or interference to compel you to make this recommendation? It’s known that USAID was involved in funding a BASL programme. Did they seek to influence appointments – in this instance, or others in the legal field?  
Nothing! Zero! the USAID helped us to develop an anti-corruption law, to develop a Secretariat - so that there would be continuity, and to uplift professional standards. How can that be ‘interference?’  

 The USAID programme involved sharing information relating to Sri Lanka’s judicial system. At one point, the USAID project sought access to court registrars in order to gather information on case loads and court administration etc. When the Justice Ministry refused permission, they devised ways of gathering that data without the assistance of the MoJ. Isn’t there anything irregular about giving such sensitive information to a foreign government?  
I don’t think so. These are public records. They relate to matters like expediting court case, reducing delays etc.  

 Are there no competent officials among the Sri Lankan legal community who can carry out this type of research?  
There are limitations of know-how, manpower etc. We can get help from anyone.  

There are allegations that the BASL is being politicized...  
That may be your opinion. To say that the BASL is ‘politicized’ is balderdash! The BASL played an active role in the change of government. Yes, we got aid from the USAID. It was only to highlight the rule of law and democracy.