Lessons to be Learnt by the Judiciary


| by Gajalakshmi Paramasivam

( December 11, 2012, Melbourne, Sri Lanka Guardian) The Sri Lankan Parliamentary Select Committee has delivered its conclusion against the Chief Justice. To my mind, it does not flow from the law and it does not satisfy the requirements of the Constitution of Sri Lanka. Yet, there was no way of stopping the Parliament from delivering the ‘guilty’ verdict. This parliament is empowered by majority vote more than intellectual power. That is Sri Lanka’s reality.
 To me, this is not different to the verdicts delivered by the Australian Judiciary when I complained against Australian politicians including from within  the University system. To me, one who is able to influence subjectively through custody of ‘local’ benefits – is a politician – including in families. The commoner needs to translate the national level events to her/his local level.  This would help the commoner  become independent of the local level once the Truth of the local politician is known to be different from picture shown by the local politician.  At the national level, in this instance the politician is the  Executive President of Sri Lanka.   Until the local voter  driven by subjective powers moves upwards from majority influence into using discriminative thinking through knowledge of common principles as applicable to her/his environment s/he would not think that the President is wrong. To that voter – winning is right and losing is wrong. Right now, they would see that the President has won against the Chief Justice . In 2009 what mattered to the voter with majority power was to ‘see’  that the Tigers / Kottia  were defeated by the President and his army. They would not have been concerned at all about whether the Rule of Law as applicable to war activities was adhered to by the Government. There was no protest by the Judiciary to prevent   Tamils being  killed.  Many Tamils kept pursuing through international avenues available to them. It’s about the dignity of Tamils as a community.  Tamils were not facilitated to uphold this dignity.

At grassroots level – not many would relate to the matter of the Chief Justice  through the provisions of the law. Unless they have local lawyers who are committed to upholding Justice – they would not feel the subjective connections either.

The commoner relates through local principles, values and practices. Such principles include Customary laws. Sometimes the commoner becomes wise  through direct painful experience which makes the voter wise when s/he accepts that pain as being her/his dues due to being part of a group.  Majority tend to take revenge – as the LTTE did.  To the LTTE, these laws and principles of Separation of Powers are books from outer space. The only Separation of Powers known to them was between Tamil Community and Sinhalese Community.
A good example is the practice of ‘dowry system’ by  Jaffna Tamils. Provisions in relation to the conduct of providers as well as beneficiaries of dowry are included in the laws of Theswalamai. But due to lack of loyalty to that system, beneficiaries want to have it both ways and towards this they use majority power. In our own family for example, sisters of my husband, who were provided with dowry are claiming equal share as brothers in the common wealth of the family. The Courts may or may not rule in their favor. The question is ‘what does it do to the whole of the Tamil Community that practices the dowry system?’ If it were not the law, any breaches of Natural Laws / Dharma would affect only the local group that practices the dowry system. But the dowry system is part of the law in Northern Sri Lanka and it does have the ability to uphold principles that underpin common national laws. Dowry was given to the less educated child to balance against the status of the child who was better educated.  Males who headed the traditional families had to ‘wait’ and inherit – and knowledge of this requirement  would have pushed them to acquire their own wealth. In totality they were Equal. Unless therefore females in a community had equal opportunity as males  to education followed by paid employment, female side of the wealth went to females and male side to males. That is a principled  system of distribution. Now with so many households being headed by women in Northern Sri Lanka, these issues need to be given much focus. Using subjective influence to merely state the name of a law to make out that practice was principle, damages the root of the judicial system which is based on rights and wrongs as per common principles.  This in turn slows down the intellectual powers of that group and therefore their discriminative thinking based on substance of the issue. To that extent their investment in education is weakened.
At grassroots level – not many would relate to the matter of the Chief Justice  through the provisions of the law. Unless they have local lawyers who are committed to upholding Justice – they would not feel the subjective connections either. No lawyer of Sri Lankan origin came forward to help me during my time of need. Now I appreciate that even if they had come forward – they would have lacked the status and its subjective influence against white Australian lawyers of their seniority. In terms of the laws of Equality – I was/am wiser than anyone else directly known to me. In presenting my interpretation of wisdom, I wrote yesterday ‘Sometimes direct experience without any prior knowledge also renders wisdom – as happened to civilians of Vanni in 2009’. My parallel of this happened at the Australian workplace – where I had the experience of being discriminated against and did not have the protection of knowledge of Equal Opportunity laws at that time to know that they were wrong and I was right at workplace  level. Likewise, not many Sri Lankan  lawyers would have had knowledge of the relevant provisions of the  Constitution in relation to Impeachment of Chief Justice of the Supreme Court. When the Impeachment proceedings started  happening, they would have felt like the civilian Tamils felt in May 2009 and the way I felt in 2003 when I was arrested by the Police. In all instances – the experience happened before knowledge. Knowledge before experience would I believe, have been a handicap in all these environments which are strongly political. With knowledge but no  status  we would feel  out of place in an environment where majority were satisfied with the way things were. Hence such minorities need physical separation to not feel less than those without knowledge but with the comfort of majority power.
Often this separation happens through rebellion against the rulers – physical and/or intellectual. If the rulers or the rebels are driven by intellectual powers of discrimination (as the judiciary are required to demonstrate) such separation promotes the intellectually driven side above the other. If rulers or rebels are driven by majority power / economic power or military power – separation merely fragments the whole. Applying that to Governance in Sri Lanka,  if the Judiciary commits itself to intellectual powers – and continues to actively practice justice through intellectual powers – the Judiciary would connect Sri Lanka to wider world.  If the Judiciary also looks for majority power – the Judiciary and the Legislature would be mentally separated as if they are two entirely separate entities  / states without common link. This would have been the case with Tamil Eelam under LTTE leadership. With  intellectual leadership – Tamils would connect to wider world .  As per Natural Justice – our returns are as per the system we invest in . That system is the one in our mind which may or may not coincide with the apparent system on the outside – as seen by outsiders. Eventually whatever we do – we do for ourselves.
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Author: Sri Lanka Guardian

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