(Lanka-e-News - 19.Feb.2017, 11.55PM) The letter sent by the secretary of the Judicial Service Association (JSA) on the 6 th to the president against the appointment of lawyer Ramanathan Kannan engaged in private legal practice directly to the post of high court judge by him , are laden with false representations and intended to mislead the public .Moreover, since that letter does not have the full approval of the JSC (Judicial Service Commission) , the JSA has acted illegally , a former president of the JSA and retired judge revealed, via a long letter written by him to Lanka e news . Since the former JSA president does not want to disclose his identity , we have complied with his request.
Hereunder is an abridged version of the letter
1. Firstly , not only the JSA ( district judges and magistrates below that rank ) but even chief justice (CJ) when issuing a letter must obtain the permission of the JSC. Hence the above letter sent by the secretary of the JSA , A.M.M. Mihal ( Mt.Lavinia magistrate ) without the authority of the JSC is absolutely illegal.
2. The announcement made by BASL secretary Amal Randeniya that the resolution made at the SL Bar association (BASL) executive Council that Ramanathan Kannan be appointed as high court judge , and whether that was adopted or not by the BASL executive Committee, are not relevant when making such appointments to posts of High court judges.
The legal procedure as regards such appointments is as follows :
3. When there is a dearth of judges , a lawyer in private practice being appointed as a judge is not unusual. That appointment is made after considering whether that lawyer has been in legal practice without any blemish for 14 years. It is only in such an instance , the president of the BASL and the Attorney General (AG) can recommend such an individual. The president can forward the name recommended by them to the chief justice to decide whether he is suitable. The president can then appoint that individual as High court judge after the recommendation is received of the CJ who is president of the JSC, and the consent of all the three judges constituting the JSC.
4. There was a shortage of 6 judges in the North East High court , and names of 6 district court judges were forwarded by the Attorney General (AG) . Out of them five were chosen . The remaining judge was not appointed based on his unsuitability. As a result there arose a vacancy for a Tamil speaking high court judge . However as there was nobody of the judges’ rank to appoint , the exigent circumstances compelled a senior lawyer’s name to be proposed.
Lawyer Ramanathan Kannan’s name was proposed by Alagaratnam who is the president of BASL and by the AG , and it was recommended to the president. Laws do not indicate that there should have been a resolution adopted by the BASL executive committee to permit Alagaratnam to take such a decision. Moreover there is no such tradition.Alagaratnam has of course acted most fairly.
Ramanathan Kannan’s name was recommended to the BASL by the secretary of the Bar Association of Batticaloa in which district he usually practiced. In fact two names were proposed . One of them was a Muslim lawyer . Unfortunately for him because he sought elections (through the Muslim Congress) he was disqualified. The only lawyer remaining was Ramanathan Kannan .
Therefore the representations purportedly made to the JSA by secretary Amal Randeniya is not relevant and cannot hold that this appointment is illegal .
The announcement of the JSA that the BASL or the minister of justice has not made any requests in connection with this appointment ,clearly is untrue and most ridiculous. This is because the request of the minister of justice is not relevant ,and BASL president has proposed the name of Ramanathan Kannan .
5. To appoint a lawyer as a high court judge , he must have been in practice for 14 years and have an unblemished record. Ramanathan Kannan has completed 18 years in practice .He has a Matale estate family descent , and his father was a trade union leader. Though he acquired his educational attainments facing hardships he is a lawyer who has an unblemished record.
6. Therefore , to say that Ramanathan sought a magisterial appointment and failed at the interview in 2004 or thereafter is to mislead and an absolute lie. During that period he was a lawyer at the Attorney General’s department . A lawyer of the AG’s department must obtain permission from the AG’s department if he has to face such an interview. But nothing like that has happened. He has neither sat the Magistrate’s exam nor faced an interview in that connection .
7. Ramanathan ‘s name has never been proposed by any political party for nominations. Hence the allegations leveled by the JSA only reflect poorly on itself and dent its own professional repute.
Revealing without telling the name is to insult. Judges ought not insult. In any case because it seemed it was the TNA the political party they were referring to, I personally inquired from the TNA leader cum opposition leader R.Sampanthan M.P. and Sumenthiran M.P. about this . They don’t even know such an individual by the name of Ramanathan Kannan. This was because Ramanathan is of estate plantation origin , and TNA does not target them.
8. The JSA viewing the appointment of Ramanathan Kannan as a high court judge instead of D.L.A. Manaf as flawed, has no foundation because Manaf was not appointed owing to a prior wrong committed by him.
He was holding the post of member of the Eastern University Council without obtaining the permission of the JSC . In addition , when he was the member of the council , he dismissed a University employee and also heard that very case in court to finally sack him. This constitutes serious miscarriage of justice and misconduct. In the circumstances Manaf being denied the high court judge appointment is lawful.
9. Simply because a lawyer is appointed as a high court judge ,it cannot be said , injustice has been meted out to the others below . Such an appointment being made when a Tamil speaking district judge cannot be picked from the lower rung of judges is not something new.
In the past such appointments have been made many times. During the past two years , of the 23 judges appointed to the high court , 21 of them were ordinary district court judges .One of them appointed was by the AG’s department , and the other was Ramanathan Kannan from among lawyers who are in private practice.
10. To accuse that Kannan was appointed as a judge to Batticaloa district itself while he was engaged in private practice as a lawyer is false. He has on the other hand been appointed as a judge to Jaffna.
11. The letter of the JSA mentioning that this appointment is not justifiable under any circumstances , is to run counter to what the judicial service stands for , and the argument that it seriously dents the independence of the judiciary is not acceptable because the president of the country did not on any grounds act in a manner to reject the methodology of the selection .
After Ramanathan received the approval of the BASL president and the AG , his name was forwarded to the CJ in December . The CJ has obtained the ratification of the three judges of the JSC on the 5th of January , and the CJ has thereafter secured the approval of the AG again.
The CJ has then sent the letter with his concurrence to the president . The president has in turn sent the appointment letter to the AG .The High court judge takes oaths before the CJ , and Ramanathan Kannan took oaths duly before him.
12. If the president of the JSA is addressing a letter to the president or the media adducing reasons , he should have obtained the absolute consent of the JSC . That applies to the CJ too. The Mt. Lavinia magistrate M.H.M. Mihal who is also secretary of the JSA had not forwarded the aforementioned letter elaborating on the issues, to the president and media after obtaining the approval duly of the JSC based on my inquiries. In other words , the JSA has acted unlawfully.
I will not hasten to accuse a reputed association like JSA that it was prompted by cheap political objectives or racism feelings when writing such an obnoxious letter.
Translated by Jeff
by (2017-02-20 01:19:14)
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