The Bar must not get involved in judicial appointments

Sunday Times

Amidst the welter of conflicting reports over the recent appointment of a Batticoloa lawyer as a Northern High Court judge by President Maithripala Sirisena, certain facts are crystal clear. First, the involvement of the unofficial (private) Bar in judicial appointments is not a healthy precedent in any sense of the word.

The reasons are obvious, including the danger of perception that such appointees may be seen as being ‘beholden’ to particular interests of the Bar following their elevation to the Bench.

Unfortunate context of these questions

Secondly even if the Bar Association of Sri Lanka (BASL) or ‘elements within BASL’ as the letter by the Judicial Services Association to the President protesting against this appointment puts it, wishes to advance a particular candidate for consideration, it would surely have been more appropriate to approach the Chief Justice rather than the President who is the political authority?

Under the Constitution (Article 111(2), it is the Judicial Service Commission (JSC) headed by the Chief Justice, which is constitutionally vested with the duty of recommending appointees to the President where High Court judges are concerned. The JSC is obliged to consult the Attorney General. There is absolutely no role for the Bar to play.

It is unfortunate that this fracas has arisen in regard to this particular judge, by all accounts a competent professional who had overcome formidable challenges in his personal circumstances to make a name for himself at the Bar. Untrue allegations leveled against him regarding lack of capacity may be disregarded.

Bemused and bewildered onlookers

And the chest beating of the former Minister of Justice GL Pieris and the motley Joint Opposition over this appointment should be treated with supreme contempt given their disgraceful part in the utter deterioration of the judicial institution under the Rajapaksa regime.

Nonetheless, it is useless for the BASL or others to thunder that the process of judicial appointment has been politicized when the behavior of its own officers appear to have been monumentally indiscreet, even to the most charitable mind.

The JSA’s challenge to the BASL was to disclose exactly what part the Bar played in the impugned appointment. This was on the basis that the BASL had no business to be informally lobbying without the seal of its executive body, either per se or on behalf of another interested party, for a particular judge to be appointed.

The ‘recommendation’ that never was

But the BASL’s flippant response to the JSA’s challenge has only made the situation worse. In a letter signed by its Secretary and released to the public by civil action groups this week, it was clarified that no ‘official recommendation’ had gone out from the Bar Council nor the Executive Committee of BASL on the appointment.

Rather, the incumbent President of the Bar Association had ‘forwarded’ a letter by the Batticoloa Bar supporting the appointment of this particular Batticoloa lawyer as a High Court judge to President Maithripala Sirisena. This was given the scarcity of Tamil speaking judges in those provinces.

What is considerably intriguing is the somewhat garbled last paragraph of the letter. The first part of that paragraph refers to a past practice of ‘consultations between the executive and the leaders of the Bar,’ in these instances. As worrisome as that claim is, this contradicts the last part of that very paragraph where it is said that ‘in the history of the Association, the Bar Council and the Executive Committee have not considered recommendations for judicial appointments.’

A distinction without a difference

In other words, the inference is that when the President of the Bar Association formally forwards a request regarding the appointment of a particular judge (presumably on the official letterhead), he or she is doing so as a ‘leader of the Bar’ and not as the ‘President of BASL”? This appears to be a distinction without a difference.

Hence we have the natural confusion of both the Chief Justice and the President who had apparently succumbed to the understanding that the BASL had made a ‘recommendation’ for judicial appointment, which is in any event, not constitutionally sanctioned.

Making the confusion worse confounded was the allegation that a certain political party’ was behind the appointment. Bemused and bewildered onlookers became aware only later that this reference was to the Tamil National Alliance (TNA), when the TNA took upon itself to vehemently deny that charge.

Opaque practices need to be avoided

But more importantly, the BASL letter fails to mention twists in the tale which reportedly came from the President himself recently. In media reports that have since not been denied, the President had said that initially he had not responded favourably to the BASL request. However he had then been visited by a delegation of the Association. In a veritable mea culpa, he said that it was only after this visit that he had gone ahead with the appointment

All this is omitted from the BASL response to the JSA. So one is confronted with the question as to who is engaging in a ‘terminological inexactitude’ as Winston Churchill classically described, decades ago. Or in other words and to be brutally clear, who is lying or at best obfuscating? Was there a visit to the President by a BASL delegation or not?

Certainly these are opaque and unsatisfying practices that need to be corrected if the Bar is to conform to norms of good governance that it so loudly espouses. Even on the most innocent of explanations, the ‘leaders of the Bar’ (as they call themselves) must refrain from bringing about situations where a disturbing lack of clarity arises in regard to precisely where the formal role of the Bar Association of Sri Lanka (BASL) ends and where their individual identities as legal professionals begin.

Adhering to principled positions

It is to no avail to ponder the virtues of a new Constitution or quote Dicey on the Rule of Law in one donor supported discussion after another, if basics are not adhered to in the first place.

Indeed, Sri Lanka may well learn from the fascinating real life drama of democratic checks and balances being played out now in the United States where, at least for the moment, an aggrandizing US President has been checked by the courts amidst wickedly satirical humor. Outstandingly principled positions have been taken by lawyers, academics and judges.

This is no doubt, eminently illustrative for us.

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