Separating Fact From Fiction
by Rajith Keerthi Tennakoon
- Former President Mahinda Rajapaksa criticises the appointment of R. Kannan as a High Court judge
- The TNA is not at all pleased with the appointment of Kannan
- The appointment of Mohan Peiris as the Chief Justice was highly irregular
Former President Mahinda Rajapaksa issued a press release earlier last week criticising the appointment of R. Kannan, a member of the private bar, as a High Court judge. While Mahinda Rajapaksa has the right to express his opinion, I believe that it is necessary to point out a number of glaring lies, misinformation and creative interpretations of reality that was strewn across Rajapaksa’s press release. I also believe that it’s time to look at how the independence of the judiciary was affected in that last decade, so that we can avoid similar unfortunate situations from happening in the future.
It must be reiterated that this is not an attempt to defend or conceal any attempts by the current administration to influence the judicatory but an endeavour to prevent the good governance administration from repeating the unconstitutional and unethical actions of the Rajapaksa administration.
Appointment of judges
In the very first paragraph of Mahinda Rajapaksa’s press release, he states that ‘the accepted way, in Sri Lanka, is to appoint judges to the Supreme Court, Appeals Court and High Court from officials in the judicial service or from the Attorney General’s Department.’ This utterance of Mahinda Rajapaksa, who is not only an attorney but also made a number of appointments to the Supreme Court, Appeals Court and High Court, is false.
Through Sri Lankan judicial history a number of persons 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. Among them are Christopher Gregory Weeramantry, Neville
Samarakoon, Mark Fernando, Shirani Bandaranayake, Dr. A. R. B. 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.
The former President goes on to say that ‘when I was the President I appointed only one member from the private bar to the Supreme Court.’ This is also not true as both Priyantha Jayawardane and Suresh Chandran were appointed as Supreme Court judges during Rajapaksa’s tenure. Moreover it was Rajapaksa who appointed 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 would go on to appoint Peiris as the Chief justice, replacing Shirani Bandaranayake, in an unconstitutional manner.
In the second paragraph of his press release Mahinda Rajapaksa said that ‘if a judge is 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 does not come from the ‘right’ caste.
Rajapaksa goes on to add that ‘the best person to appoint (as a Tamil speaking judge) is Vavuniya District Court Judge DLA Manas.’
We must consider multiple factors before appointing a Muslim person as a judge in a majority Tamil area, because of the deep rift between the two communities, but Rajapaksa’s practice, when he was the President, was to close down the courts if there were not enough Tamil speaking judges. A few years ago, the activities of the Jaffna Appaleate Court came to a standstill after retired judge K Peramparajah’s service contract ended. The government made little attempt to find a replacement for Peramparajah and for a few years, people in the area suffered greatly because there was no functioning appeals court.
BASL and selection judges
The former President rightly states that the Bar Association of Sri Lanka has no constitutional or legal right to make recommendations in appointing judges. However we must have a broad and in-depth discussion on whether this should be the case in the future as well because in many other countries Bar Associations do play a role in the appointment of judges.
In the fourth paragraph of Mahinda Rajapaksa’s press release, he states that ‘the good governance government is attempting to give more powers to the BASL, to influence the appointment of judges, because of the role it played in toppling the UPFA government in January 2015.’ This accusation is directed at Attorney Upul Jayasuriya and it up to Jayasuriya to respond to that allegation. Jayasuriya is affiliated with the UNP and many of the leading lawyers are affiliated to political parties. We must not forget that UR de Silva, who is contesting for the Presidency of the BASL this time, has held a number of positions in organisations affiliated to the Sri Lanka Freedom Party (SLFP). On the other hand Anura Medagoda, another contestant, comes from a family that has connections with the UNP (although he has not held any positions in institutions affiliated to the UNP.) What matters is not the background or the political opinions of those who contest for positions in the BASL. What matters is whether they safeguard the responsibilities and dignity of the positions they are elected to. Ultimately it’s up to the BASL membership to decide who should hold the reins of the association.
Mohan Peiris and Shirani Bandaranayake
I don’t think anyone can deny that the appointment of Mohan Peiris as the Chief Justice was highly irregular and that the no confidence motion against Shirani Bandaranayake and its verdict are black marks in Sri Lankan judicial history. It was Mahinda Rajapaksa who signed and ratified the no confidence motion against Shirani Bandaranayake passed in the parliament. Was Shirani Bandaranayake removed via a decision of the President who considered a request by the MPs? Or through a joint operation by goons lead by Mahinda Kahandagama, a ‘trade union’ leader affiliated with the UPFA, and those from Medamulana? I don’t think the country has forgotten. The politicians who led the goons, that came with police and army protection, must be hanged in the Judicial Museum so that we never forget those dark ages.
Appointment of Upali Abeyratne
This narrative will not be complete if I don’t highlight some of the appointments made by Mahinda Rajapaksa to the judiciary. Given below is a translation of what Ravaya Editor Victor Ivan says about the Appointment of Upali Abeyratne.
“The main charge against Upali Abeyratne, district court judge, is the illegal and biased manner in which he presided over that case in which an engineer, Jayasekara, had filed making Sarath Nanda Silva, the President of the Court of Appeals, a co-respondent.
The Chief Justice at that time, WPS de Silva, had to appoint a three member committee, comprising appeal court judges, to investigate the continuous allegations I was making against Abeyratne. The committee found Abeyratne guilty and recommended his removal from the judicial service. Judicial Service Commission decided that he should be removed from his post from January 31, 1990. However, after considering the appeal filed by his lawyers it was decided to repeal the initial verdict and to transfer him to Moneragala. His promotions were also suspended for two years. However Chief Justice Sarath Nanda Silva gave him a promotion to High Court even before those two years were up. Abeyratne was promoted to the Court of Appeals by Sarath Nanda Silva and now he is in the Supreme Court. Appointing a person who was recommended to be removed from the judicial service, to the Supreme Court couldn’t be good for the respect of Supreme Court.”
Neither Sarath N Silva nor Mahinda Rajapaksa has responded to the allegations of Victor Ivan yet. On the other hand the BASL did not accept the appointment of Abeyratne but he still is a member of the judiciary. This is how Ravaya editor felt about Abeyratne’s appointment to the Supreme Court.
“I only realised Abeyratne has been appointed to the Supreme Court because of the event to welcome the new Chief Justice. The event was also to mark the appointment of Anil Gunaratne and Upali Abeyratne. I believed that Gunaratne and Abeyratne were appointed by the new government but later I realised that Abeyratne had been selected during the last days of the Rajapaksa administration, in a very odd manner. He was appointed on December 14, 2014, during the presidential election period. What was stranger was that he was appointed when there was no vacancy in the Supreme Court. Speaking at the event BASL President UpulJayasuriya only spoke of the Chief Justice and Gunaratne.”
Nexus between AG’s department
and Supreme Court
Rajapaksa also spoke of 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 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. The appointee for the Appeals Court was 10th in seniority.
When these appointments were taking place, S. Sri Skandharajawas the President of the Appeals Court but he was denied the opportunity to be a Supreme Court judge in five separate occasions during the Rajapaksa administration. The reason for this was his statement that the removal of Bandaranayake from her position as Chief Justice 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 Supreme Court judge, passed away due to a sudden illness.
Another Rajapaksa appointee Sarath De Abrew, also chosen over Skandharaja, has been disgrace to the entire judicial service. What was his legacy? Sexual harassment, cruelty, alcoholism? Why was he appointed? Was it because he was friends with Rajapaksa during Law College? Usually an official of the Attorney General’s Department is appointed as a Supreme Court judge only if there is a plan to elevate that person a Chief Justice.
In July 2012,our first ever woman Attorney General of Sri Lanka, Shanthi Eva Wansundera was appointed a Supreme Court Judge to fill the vacancy created by the retirement of justice R. S. K. Sureshchandra. During an interview with Deshaya newspaper on July 6, 2012 Justice Eva Wansundera spoke of the day she was informed of her appointment. “One afternoon the President gave me a phone call and asked Eva, would you drop by at Temple Trees on your way home. I asked him why? and he said I will tell then. I went to Temple Trees on 4.45 PM and the President came down to see me. He said I am sorry for being late, I fell asleep and he spoke to me in his usual friendly manner. He asked me ‘Eva, I am going to appoint you as a Supreme Court Judge. You want to become one, right?’ I always wanted to be a judge and now someone was giving me the opportunity. I also realised he was asking me this for a reason and I said ok.’
After her departure from the Attorney General’s Department, Palitha Fernando and Yuwanjana Wijethilake were appointed as Attorney Generals.
The biggest blow to the independence of the judiciary in recent times was the dismantling of the Constitutional Council, an integral part of the 17th amendment to the constitution, during the Rajapaksa administration. During that period Jagath Balapatabendi, Andrew Somawansa and Saleem Marsoof were appointed as Justices of the Supreme Court. While none of them tarnished the image of the Supreme Court or the judiciary, we must acknowledge that these appointments were unconstitutional.
Lowering standards
During the tenure of Mahinda Rajapaksa, a judge attached to Negombo High Court granted bail on the last day of being stationed in Negombo, to a person accused of being involved in the narcotics trade. He had to repeal his verdict after media gave significant publicity to this incident and he was found guilty by an investigation carried out by the Judicial Services Commission. However, because of political backing, he was not penalised and was later promoted as an appeal court judge.
The biggest honour an attorney can receive is the title of President’s Council and during his tenure, and 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 a honorary position, the person who grants me that post should be a honourable person.”
The crisis which occurred due to the appointment of R. Kannam is the result of a struggle between BASL and the Judicial Services Association. It did not occur because the appointment was unconstitutional. Most Sri Lankans respect the judiciary and wants its independence cherished, and we need is a broad and in depth debate and discussion on the independence of the judiciary and transparency in appointments to the service, for this.
Rajith Keerthi Tennakoon is the Executive Director – Campaign for Free and Fair Elections and Center for Human Rights and Research (CHR) Sri Lanka.
