Friday 3 June 2016

Mr. Lal Wijenayake
Public Representations Committee on Constitutional Reform

Dear Mr. Wijenayake,

Report on Public  Representations on  Constitutional  Reform
I seek to make my contributions to the Constitutional Reform Process through analysis of  some main points highlighted in your above report.  My responses are in red.

“Our sittings were held in public and all those who appeared before us were allowed to express their views freely and openly. On a study of the representations made by the people it is seen that a considerable representation of people throughout Sri Lanka are for:

1. Democratisation of the State, by establishing the Rule of Law, broadening
Fundamental Human Rights through a comprehensive Bill of Rights and
strengthening independent commissions.”
Democracy is the lateral system through which Experience rules above Theory. Law needs to have its source in local experience.
2. “Democratisation of the polity by strengthening institutions for people's active
participation in governance and political life by devolving power to the provincial
and local government level and by incorporating citizens' political activity at the
village or town level into the State structure.”

Without the above mentioned Experience base,  Devolution means a different way of interpreting the law/rule to suit the local authority.  It is not Democracy. As per the system of Democracy, the real Constitution ought to have already been produced by the People through their conduct. Hence the voting system.

The closest parallel  that comes to mind in relation to Sri Lanka,  is Prescriptive Rights – which is belief based. As per the laws of Sri Lanka, Prescriptive Rights to be entitled to become official legal titles, need to be Adverse to and Independent of  the Legal Title. Likewise, the Experience of the People – to become Law  - needs to be Adverse to and Independent of the Custodians of Power through the official path.  It should not be a different set of laws based largely on external knowledge.

“The current exercise of drafting a Constitution faces an unprecedented
challenge to create an atmosphere for peace, harmony and inclusiveness among all
communities. Therefore, the Constitution should encompass issues of democracy, law
and order, transparency, accountability, human rights and freedom, social justice,
equality, environmental and protection of natural resources.”

The need to recognize Diversity arose due to Cultural differences in interpreting the law  and/or Public outcomes. The Experience of the People when given form at Community level would confirm the  same  Destination  -  as those who  followed  the Common Law  covering all communities.  In marriage for example – if the final Destination is Love, and one uses the official laws and policies – towards this Destination, one feels supported by all others genuinely  using that pathway, provided one invests in that system in good faith.  But that Destination of Love could also be reached without any marriage laws but through common understanding between the parties eventually leading to common Belief that they are One. Citizens could likewise – use top-down laws to realize self-governance / independence or use the informal bottom-up cultural pathways to realize self-governance. In both instances the official system needs to cover larger group than the unofficial system to prevent Natural Separation due to quicker travel to the Destination. Once the Destination is reached – the boundaries of that pathway and the community are Natural. So long as they stay within those boundaries they cannot be ruled by any other law, because there is no law greater than the pathway of Truth. Once a person looks to benefits and rulings outside that local circle – the protection of this Absolute value is lost.  Hence Buddhists who use Buddha Sasana lose the authority to use Common Secular Laws applicable to all Sri Lankans.

The Destination is One but the Experience is had through diverse pathways.  There are elements of theory in Common Law – which may never be directly practiced / realized by various parts of the Community.  But through the official pathway – minds come together and/or relate to each other  on the basis of Common Principle – and help us widen our world.  But if this does not  happen faster than through the pathway of the citizen practicing through her/his culture to realize completeness in her/his local area – i.e. – at community level – then such Common Laws become burdens on society.

Equal Opportunity to take the religious path to becoming Sri Lankan  has been provided for by Article 9 of the existing Constitution. But this ‘freedom’ is upheld, only when those who follow the religious pathway consider other religious groups as Equals and not tell them from above. In other words, where there is no common belief – by either party – they must be separated and treat each other as Equals until known / proven otherwise.

Towards this Article 9 needs to be amended to remove preferential authority. Articles 9, 10 & 14 (1) (e)  state:

9. The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).

Freedom of thought, conscience and religion.
10. Every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice.

14. (1) Every citizen is entitled to -
 (e) the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice or teaching;

The State  - to be Common,  needs to be bound by higher common principles than any particular religion practiced in Sri Lanka.  Where any particular religious law  is  accepted as State law – it places a ceiling for that group at that level. Hence a Buddhist does not have rights over a Hindu, Christian or Muslim.  Hence Article 9 needs to be  worded – to the effect that Buddhists do not have the right to take authority over any member of any other religion.  In other words, due religion being included in the Constitution Sri Lanka is either a Buddhist State or naturally divides and separates / privatizes on the basis of religion – to the extent citizens realize self-governance through the religious pathway rather than the secular pathway.

In  many ways  minority religious communities that do practice alternate pathway to Buddhism have developed ‘Prescriptive Rights’ to the extent they have remained independent of the Government.  To the extent they do not participate in giving foremost place to Buddhism – but  give foremost place to their own religion  - they have taken the alternate pathway through their Belief.  Given that realizing God is the destination – and they did not need nor could not have promoted Buddhism as the foremost religion – they are as right as the Government promoting Buddhism as the foremost religion. This then ‘separates’ them as Equals.  

Truth is the source of Belief and Truth being of Absolute value, cannot be made relative through human laws that provide the pathway to that Absolute value. The destination is Absolute and the milestone of foremost value is relative. The two do not belong as Equals.

The Report on Public  Representations on Constitutional Reform states:
4.2 Recommendations
As a compromise, the Committee agreed to recommend the different formulations of
the members as alternative recommendations for the consideration of the
Constitutional Assembly:
i. Retain Article 9 (Chapter II) of the current Constitution with no change.
ii. Heading of Chapter II of the current Constitution should state ‘Religions’ and
not Buddhism and retain Article 9 as it is with no change.
iii. Reformulate Article 9 of the current Constitution as follows:
 “The Republic of Sri Lanka shall give all religions equal status. The State shall
protect and foster Buddhism and the Buddha Sāsana while assuring to all
religions the rights granted by Articles 10 and 14(1) e of the current
Constitution .
iv. Sri Lanka shall be a secular State.
v. Sri Lanka shall be a secular State while recognising the role of religion in the
spiritual development of people.
vi. Heading of Chapter II of the current Constitution should State ‘Religions’. The
clause should be revised as follows:
“The Republic of Sri Lanka will give all religions equal status”

All of the above are compromised versions of the existing provisions in the Constitution. None is based on Experience that minorities did take up Equal and Opposite position and that in the case of  Tamils/Hindus  – they became Equal Opposition in Parliament when the Government became weak and disorderly. Choosing one particular religion to be specially fostered works against Democracy which needs Equal footing at the starting point. When Government is formed through majority vote – it naturally removes all other bases – including religion.   Article 9 therefore overrides the system of Democracy and empowers the  official to use ‘Buddhist authority’   instead of ‘objectively measurable outcomes’ produced independently  and adverse to the secular system of Democracy.

Where one uses Authority but does not feel  that the other is part of her/himself – and the other who is also a child of God – feels that her/his dignity is being damaged – the latter has the power to return the damage at the level  of ownership s/he feels.  Hence when a Hindu, Christian or Muslim feels s/he is Sri Lankan but is ‘told’ by a Buddhist that s/he comes after her/him – the Buddhist – who shows s/he is a Buddhist including through her/his attire – such Buddhist invokes the power of the Absolute to manifest at the level the non-Buddhist has truly contributed to in becoming Sri Lankan and openly upholding her/his status at that level. If this is through the secular pathway – the Natural Energies  of all those who invested to feel ownership in the system of Democracy – would Naturally support that person through the Spiritual Pathway of Truth. That is the way the Lord’s system works.

The Law of Nature is the path of  Truth and hence Truth is the base and the destination of all  logical human laws.  When a person manifests her/his Truth – it cannot be overridden by any human law.  That Truth could be used as ‘fact’ to relate between parties but not overridden by unpracticed theory and the authority based on theory. The provisions in the Constitution are theory. People’s contribution to  Constitution  needs to be experience based.

The example that comes to mind is in relation to a Testamentary case of a Vaddukoddai   Resident’s interstate estate.  The elder sister claimed that she had taken care of her siblings including the Deceased from the age of 10 - after their mother died.  This lady may believe that she was the mother and hence had the right to exclusively inherit  the Estate of her brother – just as her mother would have if she had lived.   If she did believe that to be the case – she would not compromise and uphold her belief  irrespective of whether she would win in a Court of Law which  has the Duty to apply Rights based common ruling irrespective of actual performance .  The sister ofcourse  could stay away from those within the family who refuse to  allocate her share on the basis of actual performance – based on her assessment as to what the duties of a mother are.  But her claim has no validity in Court.  Likewise any religion based ruling needs to stay within the boundaries and cannot be extended to the wider official system answerable to all citizens. If Buddha Sasana is the highest law of the country – then this country is not democratic.  To apply majority rule, one needs to start from zero advantage/equal footing.

There is nothing wrong in being a Buddhist State so long as one is Transparent about it and does not claim benefits on the basis of being Democratic.

Finally – from a legal angle I recently submitted that an Order is interlocutory and not final judgment if the matter was not raised to the highest possible level to construct the matter as widely as possible. Below is an excerpt:

(a) In S. RajendranChettiar& Others Vs S. Narayanan Chettiar   S.C.Appeal No. 101A / 2009,  escalated from  the  District Court case No. 428/T in the District Court of Colombo in relation to the  Trustees of the Hindu Temple known as “Sri Kathirvelayuthan Swami Kovil”,   Dr.Shirani A. Bandaranayake, J includes in her Honor’s reasoning the following:

[Therefore to ascertain the nature of the decision made by a civil Court as to whether it is final or not, in keeping with the provisions of section 754(5) of the Civil Procedure Code, it would be necessary to follow the test defined by Lord Esher MR in Standard  Discount Co. v La Grange (supra) and as stated in Salaman v Warner (supra) which reads as follows:

“The question must depend on what would be the result of the decision of the Divisional Court, assuming it to be given in favour of either of the parties. If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory.”

 In Salaman v Warner (supra), Fry, L.J., also had expressed his views regarding an appropriate interpretation that had to be given to final and interlocutory decisions. Considering the difficulties that had been raised regarding the correct interpretation for final and interlocutory orders, it was stated that the attention must be given to the object of the distinction drawn in 15 the rules between interlocutory and final orders on the basis of the time for appealing. Fry, L.J. had accordingly stated thus:
“I think that the true definition is this. I conceive that an order is “final” only where it is made upon an application or other proceeding which must, whether such application or other proceeding fail or succeed, determine the action. Conversely I think that an order is “interlocutory” where it cannot be affirmed that in either event the action will be determined.”

Using the above ruling to your report – this is very much ‘interlocutory’ due to the Experience of the citizen having been higher than the level at which you have drawn the picture. Hence wars will continue to happen due to Natural forces that separate.

Yours sincerely

Gajalakshmi Paramasivam

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