Gajalakshmi Paramasivam

05 April 2017

Pot calling the Kettle Black?

"Oho!" said the pot to the kettle;
"You are dirty and ugly and black!
Sure no one would think you were metal,
Except when you're given a crack."

"Not so! not so!" kettle said to the pot;
"'Tis your own dirty image you see;
For I am so clean - without blemish or blot -
That your blackness is mirrored in me." –

St. Nicholas Magazine  1876

The Sri Lankan Judiciary’s independence is yet again under Public scrutiny through the appointment of a Tamil lawyer to the position of High Court Judge. Immediate past  President of Sri Lanka states in this regard:

[Minister of Justice Wijedasa Rajapakshe had informed the Judicial Services Association that a certain political party had on an earlier occasion requested of him that Mr Ramanathan Kannan be appointed to the High Court – a request he had turned down. The appointment of a judge on a recommendation made by a political party would have struck at the very foundations of judicial independence. Mr Kannan has been appointed to the High Court over the heads of dozens of senior members of the judiciary and officials of the Attorney General’s Department. The Judicial Services Association has pointed out that if the need was to appoint a Tamil speaking judge for the North and East, the District Judge of Vavuniya D.L.A.Manaf would have been the most qualified candidate. Nobody would have objected if a Tamil speaking candidate of suitable seniority and competence had been selected for this position from within the judicial service or the AG’s Department.] the Hon Mahinda Rajapaksa – through Colombo Telegraph article ‘Irregular Appointment Of High Court judge Threatens Independence Of The Judiciary’]

One is reminded of the dismissal of the then Chief Justice Dr. Shirani Bandaranayake who was appointed by Mr. Mahinda Rajapaksa when he occupied the seat of Executive President of Sri Lanka. Was that dismissal Political or Administrative? One who is yet to admit that it was political lacks the authority to criticize his successor except through her/his Truth.

The Constitution of Sri Lanka provides as follows:

Independence of the Judiciary

Appointment and removal of Judges of the Supreme Court and Court of Appeal.

107. (1) The Chief Justice, the President of the Court of Appeal and every other Judge, of the Supreme Court and Court of Appeal shall be appointed by the President of the Republic by warrant under his hand.

(2) Every such Judge shall hold office during good behaviour, and shall not be removed except by an order of the President made after an address of Parliament supported by a majority of the total number of Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehaviour or incapacity :

Provided that no resolution for the presentation of such an address shall be entertained by the Speaker or placed on the Order Paper of Parliament, unless notice of such resolution is signed by not less than one-third of the total number of Members of Parliament and sets out full particulars of the alleged misbehaviour or incapacity.

(3) Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of a such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative.

On the face of reported evidence, the appointment  of his honor Justice Ramanathan Kannan, is within the above provisions of the Constitution. Even the President does not have the authority to cancel such appointment through Due Process. It is NOT merit based appointment as per one’s credentials within the Administration of Law.

Mr. Mahinda Rajapaksa on the other hand considers seniority within legal administration to be the basic criterion needed for such promotion:

[Nobody would have objected if a Tamil speaking candidate of suitable seniority and competence had been selected for this position from within the judicial service or the AG’s Department]

But the above has no base in the Constitution. When on the other hand one goes to the dismissal process – outlined in the Constitution, one is able to appreciate the built-in mechanisms to protect the Sovereignty of the Judiciary:

(1)   Essential criterion to commence dismissal procedure   - Misconduct or Incapacity

(2)   Process must include: An address of Parliament supported by a majority of the total number of Members of Parliament (including those not present)

(3)   Notice of such resolution is signed by not less than one-third of the total number of Members of Parliament and sets out full particulars of the alleged misbehaviour or incapacity

(4)   Order of the President

The Independence of the Judiciary from the Executive is protected also through the absence of merit in legal Administration and/or technicality. The role of the Executive is to ensure that the Common structure on which the two branches of Governance are developed is not damaged by such appointment. Hence if the Bar Association and/or the Judicial Services Commission makes recommendations – the President has the duty to eliminate consciously all components of legal merit  based assessments. This places a ceiling on the use of Judicial Services to present cleverness. To the extent one shows cleverness beyond the needs of Public it becomes private and attracts ‘foreigners’.

When the President makes the appointment – it is expected to be as per her/his belief in the goodness of the person being appointed. If this belief is shared with other politicians or v.v. – then that satisfies the above fundamental requirement. A politician is taken to have acted as per her/his belief until known otherwise. Hence to the extent a politician and/or political party made the recommendation – that is well within the fundamentals of the Constitution. In Sri Lanka, when that person is of a minority race, appointed by President who is of majority race, it confirms independence through affirmative action. That was NOT the case with the appointment of Dr. Shirani Bandaranayake.

The dismissal process confirms the special need to protect the independence of the Judiciary by using merit basis as known to the Executive rather than belief which confirms independence. An action based on true belief is wholesome. It is a basic human right to be heard through belief. Hence the need for special parliamentary approval.