| by Gajalakshmi Paramasivam
( April 14, 2013, Melbourne, Sri Lanka Guardian) A friend of my husband rang the other day after reading the Sri Lanka Guardian article ‘Democracy needs Multiculturalism and v.v.’ to share his feelings with my husband. He himself is a well educated engineer and to me he became the medium to return my husband’s investment in the engineering profession – which was the basis on which my husband migrated to Australia. The Appendix in the above mentioned article is confirmation of how the real powers keep manifesting themselves whenever there was a need. In essence – the return for my father in law’s investment in my husband’s education was still active and is producing current returns. It is my belief that in turn my father in law’s life in his current form would be strengthened.
Likewise, the investment made by Governments in its people. No government is solely responsible for all the happenings at government level. Similarly whatever the government does in its term of office would either be benefit of cost during its period and to the extent it benefits the next government it would be an investment and to the extent it burdens the next government it would be a liability. This applies to leadership positions including Ambassadors.
In that consciousness I read Dr. Dayan Jayatilleka’s ‘Anti-BBS vigil: A critique of the critique’ published in Sri Lanka Guardian. I am aware that the more educated members of the Tamil Diaspora are interested in what Dr. Dayan Jayatilleka has to say rather than about Mr. Malinda Seneviratne the author of the article ‘Vigil’ that I saw’. I put it down to Dr. Dayan’s ‘life’ in the West rather than using the West merely for a living.
Dr. Jayatilleka states ‘I was aghast, but not really surprised to read Malinda Seneviratne’s critical account of the vigil (‘The BBS ‘Buddhists’, ‘Nightclub Buddhists’ and The ‘Vigil’ That I Saw’ April 12, 2013, Colombo Telegraph). He writes: “But there were non-Buddhists in proportions that were a fair distance away from national ratios.” Two issues arise: Firstly, how on earth could Malinda tell? Is it a visual impression? If so, isn’t this the religious stereotyping, the equivalent of ethnic stereotyping, of the worst sort? Do the non-Buddhists have longer noses than the Buddhists, as the Jews were deemed to have in Nazi Germany? Where does this lead and where does it stop? Secondly, what does it matter? Should demonstrations accord with national ethnic or religious ratios? Are class, caste, provincial and gender ratios relevant too?’
My simple response to Dr. Jayatilleka’s above question is ‘yes ethnic ratios do matter in physical demonstrations such as the vigil to protest against religion based attacks’
When I took action against senior Administrators of the University of New South Wales on the basis of unlawful racial discrimination some white Australians said to me that they also suffered similar and therefore how could this be racial? Similarly some Sinhalese about the Sri Lankan conflict. When I took action on that basis – it was due to my intuition based belief – expressed through Affidavit evidence. If any of the Judges who dismissed my complaints had valued Democracy and therefore Multiculturalism and therefore Equal Opportunity – they would have found the other side Guilty as charged. But none of them valued Democracy and hence could not identify with my Truth. In other words, our Australian Judiciary at the National level are also not democratic. If they are not democratic then they do not have the power to influence global democratic outcomes . As my dear friend Dr. David Garlick of the University of New South Wales said – ‘We are ignorant that we are ignorant’. David said also about a senior Academic-Administrator with whom David was granted a meeting regarding academic work ‘I went to talk about the curriculum but all that was talked about was Gaja’. Then I knew that that person’s conscience was affected.
Similarly in this article Dr. Dayan Jayatilleka is talking most of the time about Mr. Malinda Seneviratne than about the reason for the Vigil itself. I conclude that this is the reason why Dr. Jayatilleka is not able to find value in the apparent ethnic make up in a vigil against religious discrimination. When we have ugly traits that are natural to us, we would not ‘see’ them as faults in others.
Tamils were stopped and searched more than Sinhalese when walking the streets of Colombo. I myself would identify whether a person is Sinhalese or Tamil from their mannerisms, the way they wear their clothes etc. I do need that more often now than when I grew up in Sri Lanka. Similarly – here in Australia, I would know the difference between an Indian and a Sri Lankan even where both are Tamils. Similarly whether one is a Jaffna Tamil, Batticaloa Tamil, Colombo Tamil or Estate Tamil. When one invests at the primary level of one’s culture – there is an intuitive identification with those on our side. The rest are not on our side even if they voted to be on our side. Those naturally on our side would work in harmony with us. Others with equal level of investment would be our natural opposition at the physical level and the rest do not actually matter for the purpose of physical level assessment such as majority power.
When the Police arrested me at the University of New South Wales – they showed very little direct knowledge of the law relating to trespass. Most of it was gained through experience in arresting criminals who were violent. My actions certainly qualified as Peaceful Assembly. I brought this out through my questions to them. They started with the task allocated to them – to remove me from the reception of the Office of the Vice Chancellor and then later to arrest me. If you work back from what happened – the law that covers their actions as per their lack of knowledge is not the Inclosed Lands Protection Act 1901 but the Racial Discrimination Act 1975 – and the Police would be guilty under the former for entering the University of New South Wales without a lawful excuse and the Police as well as the University officials who instructed them would be guilty under the latter – for failing to practice the Doctrine of Separation of Powers when the person being arrested seemed to be of a different ethnicity to themselves.
This intuitive identity is the very foundation of the Doctrine of Separation of Powers. Someone who is politically ‘right’ as per the subjective ruling of the political leaders could be Judicially wrong as per the subjective ruling of the Judicial leaders. If ‘Discretionary Powers’ were used in both instances and used within their area for their people only – they are both right – and this could very well be the case in the dismissal of Dr. Shirani Bandaranayake. The events that followed confirms a divided high class society in Sri Lanka - the highest parts directly influencing governance activities. At the lowest parts that elect government – this is confirmed through conflict between leaders of different faiths. A country which is committed to the Doctrine of Separation of Powers between the Judiciary and the Executive need to also be committed its parallel at the lower levels – through separation of different faiths including in one’s own mind. It’s in the privacy of our faith that we would develop intuitive faith – as mothers are known to have with their children. When used genuinely in our earned areas – at the voting level we would work harmoniously and would show that harmony. At the level where leaders use discretionary powers beyond administration through their own Truth – they would connect their group to the next higher level – which would be global in the case of the Executive or the Judiciary.
In his article ‘We Have To Grill Aspirants To The Supreme Court’ , published in Colombo Telegraph, Mr. Seneviratne states ‘Shirani Bandaranayake was an academic and one with explicit ideological preferences. In fact she was admonished and instructed not to take cases that had anything to do with devolution, given certain outcome preferences and particularities of political reading. She did. She irked the Executive. She paid the price, and the legality or ethicality of process of the matter are not our concern here. The issue is ‘ideological preferences’. The issue is past record. ’
The way I see it, unless the Head of the Executive Government is committed to the Doctrine of Separation of Powers and therefore is conscious of dividing equally her/his status between the two – the appointment of Judicial head effectively is within the hierarchy of the Executive Government. In an ideal system that is committed to the Doctrine of Separation of Powers – the Head of the Executive would make the appointment as the Head of the Judiciary and not as the Head of the Executive. It is like a mother playing the role of father when needed.
In the above mentioned article Mr. Seneviratne states about Dr Lakshman Marasinghe whom her describes as - Emeritus Professor of Law, University of Windsor, Canada, Attorney-at-Law and Barrister-at-Law (Inner Temple), one time Visiting Professor of Law, University of Colombo and Legal Director of the Secretariat for Coordinating the Peace Process (SCOPP) during the early days of the Ceasefire Agreement - ‘In an interview published in the Sunday Observer (March 14, 2004), Marasinghe waxes eloquent on ‘extra constitutional methods to change the constitution’. He interjects an interesting term: ‘the doctrine of necessity’. It’s about measuring evils and picking ‘the lesser’. Subjective to core, one would observe. He also interjects ‘efficacy’, in the event of a coup d’tat. He adds that all that is required is ‘judicial control in the determination of (the) particular formula’ when certain articles are changed. Now, if he were Chief Justice in a time of upheaval, say in an Arab Spring, post-Gaddafi Libya or ‘Imminent Syria’, where political control is dispersed, what then? It would depend on his political preferences! ‘Necessity’ then would justify and legitimate judicial action even if it amounted to recognizing de facto control of part of Sri Lanka by the LTTE and thereby conferring such with illegal control, with de jure status.’
To my mind, the doctrine of necessity as explained above is more appropriately called the Doctrine of faith/belief. This is also the foundation of election by majority vote. Prescriptive rights as provided by the laws of Sri Lanka – are also based on this Doctrine. This is needed to manage a society as per Truth discovered by a particular group about themselves. Most customary laws are based on this value of Dharma. If the Judiciary therefore is not able to exercise its powers fully – due to the laws that are required to benefit the whole in a particular issue are not in force and are active – the Judiciary would need to use Laws of Natural Justice on the basis of the Truth they know. This is exercised through Discretionary powers in an educated society. Obviously, anyone who recommends that to the Sri Lankan Government does not consider them to be highly educated and therefore needing for it to be spelt out in the form of a national law.
In Australian, this need as been covered and expressly stated through Equal Opportunity Laws. It is just not practiced against our leaders.
Dr. Dayan Jayatilleka states ‘When once again Malinda says ‘this was no Buddhist cross section, that much was apparent to me’, how was it apparent, why is what is apparent (the result of sense impressions) taken to be the truth – which doesn’t sound much like the Dhamma—and what does any of it has to do with Buddhism, still less the legitimacy of a protest against religious fanaticism?’
Electing Government through majority vote does provide for sense impressions. To the extent sense impressions are supported by the belief that the other person is part of oneself – they are as valid as judgments / appointments through discriminative thinking on the basis of common principles/laws. If a group is bound by faith in Buddhism they would naturally identify with each other. Rural Sinhalese are more likely to be Buddhists than any other religion. Likewise rural Tamils are more likely to be Hindus than Christians.
A protest against religious fanaticism needs to be diffused through equal fanaticism by the opposition – the same way the terrorism fanaticism by the current government got rid of the LTTE. The LTTE was right so long as it stayed within the boundaries of its belief in Tamils as a community. The moment the LTTE used resources from outside those boundaries – for example from those who were sending money from outside – without having earned them – the LTTE lost that power of belief / necessity and defeated itself. LTTE’s de facto governance would have worked if they had respected and facilitated a parallel secular intellectual administration by the educated Tamils who have invested in wider common principles and values.
Based on local beliefs – LTTE would have been successful in its rule of Tamils. But that would have been a block to true merger of the Tamil Community with other global communities – a plight that Sri Lanka as a country is now suffering from. The likes of Dr. Dayan Jayatilleke would need to shed their Western Intellectual Uniforms to contribute to a bottom-solution in Sri Lanka.
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