| by Gajalakshmi Paramasivam
I write in response to the Sri Lanka
Guardian article ‘The beginning of the fall of
western legal bastion’ by Professor Nalin de Silva.
( November 30, 2012,
Melbourne, Sri Lanka Guardian) This week I received the following email
regarding Tamil forces within the International Community ‘Transnational
Government of Tamil Eelam's 4th Parliamentary Sitting Begins in London…. The
Sitting will begin with a conference at the British Parliament on November
28th, the day after Heroes’ Day. Several Members of Parliament and other
dignitaries are attending this event.’
It felt as if the
likes of Professor Nalin de Silva are abandoning the investments that Sri
Lankans of Sinhalese origin made
in global systems and are thus handing over Tamil Eelam to groups such as the
TGTE. In other words, Tamil Eelam would be the face through which the Western
system would see its investment in Ceylon/Sri Lanka, if the likes of Professor
Nalin de Silva had their way. It felt as
if TGTE was saying to the President of Sri Lanka – ‘If you do not want your
investment in Western systems we will take them also’.
In 2010, I heard the miracle story of a
very poor devotee of our Family Temple where Vairavar and Kali are
worshipped. That poor
mother of eight went to the markets in Vattukottai and other areas,
bought vegetables that the
richer vendors were not interested in, sold most of it in her local village and
then used the leftovers to feed her family. All her daughters got married and when
the last one got married she was given many lakhs in dowry.
I was reminded of this
story when I read the article by Professor Nalin de Silva in the consciousness
of the achievements of the Transnational Government of Tamil Eelam. TGTE is
using the leftovers of the Western system that the official government in Sri
Lanka has discarded. One who believes in a system will work that system more
than one who merely marks his presence in that system to get the status.
Professor Nalin de
Silva states ‘In Sri Lanka since the English had "retreated" at
least in theory, there has been a long struggle over who should rule this
country. I am afraid the ordinary Tamils were kept out of this
struggle by the English educated Vellalas until Prabhakaran came on the scene.
Unfortunately, he was used by the very same westerners and of course the
Indians, though the latter did not succeed much, against the Sinhala Buddhist
culture. This prolonged struggle is nothing but a continuation of the
independence struggle by the Sinhalas against the English, and it is destined
to be carried on for few more decades.’
The Vellalas (Farmers)
were groomed by the Tamil community to take over leadership. They are the
parallels of Academics in a
University system. India’s
parallel of Vellalas are the Kshatriyas who are warriors. To my mind, they are the parallels of
Kandyan Sinhalese. India’s
caste system was led by Brahmins whose parallel in the University system are
the Professors. If we
had a uniform system all over the world - farmers would be the rulers in all countries that do not
have strong need to protect their
borders and warriors / military would be the ruling class in countries that
have the need to protect their borders. By militarizing itself, the government
of Sri Lanka is claiming to feeling threatened by Tamils. Hence the push to
take over Jaffna.
Kshatriyas respected
their Gurus who were
usually of the Brahmin caste and were intellectuals. When Sri Lanka was at war
with itself, the Tamil community also fought with itself – the intellectual
Vellalas against Warriors who lacked respect
for their ancestors and community elders. The parallel of that within Sinhalese
is now unfolding between the Judiciary and Military leadership. Tamils went
down that path before Sinhalese. The parallel of this upside down management in
the Western University system is the business basis taking over intellectual
leadership. In the case of Sri Lanka, it is politics taking over intellectual
leadership. When the hierarchical system weakens and the system of democracy is
yet to be developed, management turns upside down as it is. This is like the Nalavar (Toddy
Tappers) taking leadership over Vellalas (Farmers) which happened a couple of
times at Vattukottai – where the first political declaration of Independent
State of Tamils was made. To me it is no coincidence that LTTE’s make up
included a high proportion
of lower caste Tamils. The
parallel of this in the Immigration system of the West are the illegal
immigrants who often become dependent on their parallels in the host nations that are looking
for followers as per the old hierarchical system. By the time they realize that
these immigrants are the parallels of rough politicians in their own countries,
it is too late to stem the flow. The independence is confirmed at the physical
level through separation. A
system turns upside down when an appropriate alternate system has not been
developed by its People. Thus students took over University management in Sri
Lanka due to talking politics outside their portfolios. Separation is healthy
when the institution/nation is too large for the ruler. This often happens when
the ruler is lacking in leadership of the whole. Hence the need for separation
of powers.
Professor Nalin de
Silva states confirming the use of upside down management: ‘It is clear that
article 4(a) and 4(c) quoted below state that both legislative power and the
judiciary power of the People shall be exercised by Parliament, the difference
being that in the case of Judicial power Parliament exercises it through
courts, tribunals and institutions. It does not say the judicial power has to
be exercised only through courts and tribunals but it includes institutions
created and established, or recognized, by the Constitution, or created and
established by law.
"(4) (a) the
legislative power of the People shall be exercised by Parliament, consisting of
elected representatives of the People and by the People at a Referendum;
(b) the executive
power of the People including the defence of Sri Lanka, shall be exercised by
the President of the Republic elected by the People;
(c) the judicial
power of the People shall be exercised by Parliament through courts, tribunals
and institutions created and established, or recognized, by the Constitution,
or created and established by law, except in regard to matters relating to the
privileges, immunities and powers of Parliament and of its Members, wherein the
judicial power of the People may be exercised directly by Parliament according
to law";
As per my reading of
Article 4 (c ) – the People have the Power and the Parliament has the
Responsibility to facilitate the exercise that Power through Courts, Tribunals
and other institutions of specific culture that is different to that of the
Executive. Parliament representing the People, is the parallel of One god and the various forms in
which the nation is governed are the various religions that lead us to that
god.
Article 105 of
the Constitution includes:
2) All courts, tribunals and institutions created
and established by existing written law for the administration of justice and
for the adjudication and settlement of industrial and other disputes, other than the Supreme Court,
shall be deemed to be courts, tribunals and institutions created and
established by Parliament. Parliament may replace or abolish, or, amend the powers,
duties, jurisdiction and procedure of, such courts, tribunals and institutions.
(3) The Supreme Court of the Republic
of Sri Lanka and the Court of Appeal of the Republic of Sri Lanka shall each be
a superior court of record and shall have all the powers of such court
including the power to punish for contempt of itself, whether committed in
the court itself or elsewhere, with imprisonment or fine or both as the court
may deem fit. …………………………………..
In other words, the
Parliament does not have institutional powers to directly administer the
Supreme Court. To my mind, ‘Other than the Supreme Court’ means that the Parliament does not
have the power to create/establish the
Supreme Court. The Parliament therefore does not have the Administrative rights
over the Supreme Court. A
good example of this is the ‘invitation’ system practiced by the People of
Jaffna. Children are
included in the invitation of parents until the children get married. In Australian / Western culture –
children who live on their own are considered independent individuals. Hence
they are entitled to separate invitation even though they are not married. Parents have administrative
powers over children only until the children are independent of the parents –
even if the children live in the same house. Likewise communities that function
independent of the Government – even if they live physically close to the
Government. People who are the source of sovereign
powers (powers that can create themselves) come, as wholesome powers without
any divisions - into those
who believe in them consciously or otherwise.
Every person who binds
her/himself by the law is an independent authority and where majority persons
to whom that law is applicable are known to bind themselves by that law – the
custodians of power need to become a facility in respect of that law – and not
direct administrators. That is when the practice of that law upholds democracy.
It is towards
preventing the interference by custodians of Administrative powers, that
separation between Equal Chiefs is established by law. Every citizen who
practices the law and binds her/himself by those laws is a sovereign person
equivalent to the ‘whole’.
Section 105 confirms
that the exercise of Judicial
Powers by the Parliament needs to be as a facility in the case of Supreme Court and the Court of Appeal
– both of which have the requirement to punish themselves.
Professor Nalin de
Silva states ‘Parliamentary Select Committee is an institution that
satisfies the criteria stated in (4) (c) when it is read with Article 107 (3)
on impeachment of judges of the two higher courts, which states
"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.". Standing orders per se may not be
law but for the impeachment of the judges the relevant standing orders are law
under Article (107)(3). This is my personal view and I am not a lawyer.’
I am not a lawyer
either but through practice of Administrative laws I have wisdom in such an
issue. As per that wisdom, Standing Orders that do not flow from a law – do not
have the powers of Legislative Administration. Only Standing Orders that flow
from the law qualify as Administrative tools under Article 107 (3) of the
Constitution.
Mr. Chandra Jayaratne,
Petitioner in the matter SC
Determination 3/2012; Case No: CA/WRIT/358/2012, against individuals who make up
this Parliamentary Select Committee (which includes Tamil Political Leader the
Hon Rajavarothiam Sampanthan)
includes in his submission questions in
relation to the relevant Standing Order 78A. I looked it up and found that
Standing Order 78A includes:
‘(1)
Notwithstanding anything to the contrary in the Standing Orders, where notice
of
a resolution for
the presentation of an address to the President for the removal of a Judge from
office is given to the Speaker in accordance
with Article 107 of the Constitution, the Speaker shall entertain such
resolution and place it on the Order Paper of Parliament but such resolution
shall not be proceeded with until after the expiration of a period of one month
from the date on which the Select Committee appointed under paragraph (2) of
this Order has reported to Parliament.
(9)‘ In this
Standing Order “Judge” means the Chief Justice, the President of the Court of
Appeal and every other Judge of the Supreme Court and Court of Appeal appointed
by the President of the Republic by Warrant under his hand.’
To me therefore, it is
clear that this Standing Order has been intended to cover the exceptions under
Article 105 (3) of the Constitution. But unless it continues to confirm the
sovereignty of the Judiciary as defined by Article 4 (c ) and confirmed by
Article 105 (3) – this Standing Order would not qualify under Article 107 (3)
of the Constitution.
To qualify under
Article 107 (3) – the Standing Order needs to facilitate the Judiciary to
punish itself. Hence the first complaint ought to have ideally come through the
Judicial Service Commission itself. A
lawyer who practices in Jaffna said to me when I got upset with him
for failing to follow the law – that I could not sue him. I said I could
complain against him to the Judicial Service Commission. I had done that
against an Australian lawyer here in Sydney and hence I knew the process. I
believe that we must do our best through Due Processes and leave the rest to
Natural Justice.
All independent
professions need to have a governing body that represented their
‘conscience’. It is that conscience based judgment above all else that
confirms our independence of others / outsiders and therefore our sovereignty –
which is what Article 4 of the Constitution is
all about. But the
Legislature did not facilitate this for the Sri Lankan Judiciary, through the
law.
Standing Order 78B
refers to other High Ranking Civil Officers appointed by the Executive. The Chief
Justice seems to have been effectively classified under similar provisions to
other Chiefs listed under this heading – thus denying the Sri Lankan Judiciary
their Independent status as provided by Article 4 (c ) of the Constitution.
Going to the root
principles of democracy – separation of powers is required where a group is
clearly not able to submit itself to the dictates of another group due to its
Natural beliefs and/or as structured by the Constitution of the whole. We are all born equal which means we have the power to judge
ourselves and live within our Truth. This
means also that those to whom we are not bound by common faith – do not have
the authority to judge us – even if the law says so. As Gandhi said - there are unjust laws as there
are unjust persons. Eventually Truth will prevail and those who have invested
in Natural Justice above all other systems – would see the connection between
cause and effect. The
parallel of the injustice against the Chief Justice is the injustice against
unarmed Tamils who were attacked by armed Sinhalese. Given the declaration by
Tamils that they were a ‘sovereign’ group – Tamil Politicians ought to have
been the source of
impeachment of civilian Tamils, followed by punishment through lawful
processes.
If the Sri
Lankan Judiciary had been truly sovereign it would have strongly objected to
the attacks against Tamil civilians and invoked divinity to support Tamil civilians against unjust attacks
in May 2009. Divinity comes to help us only when we recognize our Oneness as a
nation and beyond as humans. If we had the power and failed to use them in time
of need – we lose the Divinity of such sovereign powers. The Hon Rajavarothiam Sampanthan in the Parliamentary
Select Committee and all other Tamils in the Legislature who fail to take a
stand against this interference with sovereign powers are the parallels of the Judiciary that failed to
share its real and natural sovereign powers with Tamils during the time we
needed them.
Tamils as well as the
Judiciary are not binding themselves by their conscience. That is the missing
link here.
