Cutting the Gordian knot

Island Editorial

The Bar Association of Sri Lanka (BASL) has sought to wash its hands of the so-called Kannan issue. It has said it had nothing to do with the appointment of Ramanathan Kannan, a member of the unofficial bar, a High Court (HC) judge and, therefore, it will not get involved in the ongoing campaign in some quarters to remove him. Trouble began when President Maithripala Sirisena, in his wisdom, made the controversial appointment on the then BASL chief’s recommendations a few weeks ago. The President insists that he followed proper procedure in making the appointment, which the Judicial Service Association (JSA) has taken exception to on the grounds that it was made at the expense of a number of deserving District Court judges. The BASL has said its former head wrote to the President recommending Kannan without the knowledge of its decision-making body.

Vavuniya District Court Judge D. L. A. Manaf has been appointed a High Court judge amidst the Kannan controversy and the situation has since taken a turn for the worse. The Kannan issue has, we believe, got overpoliticised; the opponents of the yahapalana government are flogging it hard to gain political mileage and using it as a bludgeon to beat President Sirisena with.

Interestingly, it may be recalled that President Sirisena, who has not heeded calls for removing Kannan from his post, lost no time in ‘vapourising’, so to speak, Chief Justice Mohan Peiris, who had succeeded Dr. Shirani Bandaranayake, who was wrongfully impeached. The government claimed the President had acted on the advice of the BASL, whose top guns threw their weight behind the UNP-led Opposition at the last presidential and parliamentary elections in 2015. Ironically, the BASL now tells us that it does not want to be party to the ongoing campaign for removing Judge Kannan because it had nothing to do with his appointment!

As for the removal of CJ Peiris, President Sirisena’s contention was that the post of the CJ had never fallen vacant because CJ Bandaranayake was removed wrongfully. He waved his executive wand and Peiris was gone! (Some of the yahapalana activists who advocate non-violence unflinchingly resorted to threats in a bid to force CJ Peiris to resign! Their political masters couldn’t have been unaware of their strong-arm tactics.) In trying to rectify one wrong, President Sirisena committed another. He should have reversed the seriously flawed process of Bandaranayake’s impeachment through Parliament itself the way the 18th Amendment was done away with.

Now, as regards the Kannan issue, the buck is reported to have been passed to the Judicial Service Commission (JSC). Legal experts argue that a High Court judge can be removed only on disciplinary grounds. President Sirisena has, true to form, let the grass grow under his feet. It is unfair to expect the JSC to cut the Gordian knot. Had the President acted responsibly, this situation would not have arisen.

Judge Kannan has made the same mistake as Peiris; in spite of being very senior lawyers, both of them got into trouble as they reposed their trust in executive presidents. The late President J. R. Jayewardene boasted that the only feat he could not achieve with his executive powers was to make a man a woman and vice versa. So, President Mahinda Rajapaksa and his successor may have thought they should at least be able to make lawyers judges with the help of powers vested in them.

Peiris and Kannan should have known better than to have themselves appointed judges by politicians. We pointed out in this space in the aftermath of the removal of CJ Peiris that he should not have remained in his post until he was removed. Whether Kannan will do what Peiris was not wise enough to do remains to be seen.

What needs to be borne in mind is that Kannan is now a sitting judge and the manner in which the issue of his appointment is handled will have an impact on the judiciary. It behoves politicians to act with restraint without aggravating an already bad situation.