Gajalakshmi Paramasivam

11 April 2017

Political Order or Administrative Order in Appointing Judges?

[A few months ago Wigneswaran kept himself away from attending an economic development forum organized by Northern Province Governor Reginald Cooray in Jaffna with the participation of Central Bank Governor Dr. Indrajith Coomaraswamy.

However, Wigneswaran attended an event organized by Minister of Development Strategies and International Trade Malik Samarawickrama a few weeks ago in Jaffna to promote the export opportunities of nearly 2,000 local entrepreneurs.] Ceylon Today article ‘Wiggy now thinks differently?’

Intuitively and/or Consciously, Mr. Wigneswaran, to my mind, has upheld good order of the brain.  The Governor of Northern Province is appointed by the President whereas the Chief Minister has to be first elected by the People of the Province. The current  Governor is the Supervisor of the Government Agent and not of any elected member of that area. Elected members are representatives of the Belief of the People and have the duty to be driven first by Common belief, before applying merit. In democracy one who is not elected does not have direct authority over elected members of that area. Mr. Reginald Cooray is not therefore above the Hon Wigneswaran in Northern Province except when Mr. Wigneswaran is a citizen within the services provided by the office of the Government Agent.

Yesterday our Australian Prime Minister, the Hon Malcolm Turnbull is reported to have stated in India:

[“India is showing it can grow at a rapid rate and that is offering enormous opportunities for Australia,” he said.] news.com.au report -  ‘Prime Minister Malcolm Turnbull lands in India for four-day visit’

The key to India’s growth is Her sense of Independence/Freedom  not only through Gandhi but largely through commitment to tradition and respect for elders. There was a time when to my mind as  Sri Lankan – the Sri Lankan educational qualification was equally high in standard as its Indian parallel. It may still be so but now Sri Lanka is recognized now as an Aid receiving country while India  is recognized for its diversity and independence.

Hence I am not surprised to note the absence of  bilateral tradeoff with Sri Lanka, during the recent visit our Australian Minister for International Development.

It is quite common these days for those embracing the Democratic pathway to use the ‘Business Approach’. The moment we think ‘Aid’ we block the development of this pathway through which Democracy flows. In areas where the leaders are weak – the Administrative structures are weakened and this often necessitates restructures through our inner belief. Democracy is based on the strength of Common belief in a particular area.

Gandhi who was Hindu was able to bind Indians through his firm belief in Lord Krishna and Bhagawath Geetha. But his presentation was secular, through his knowledge of law used by the British to whose mind Gandhi was connected by respecting those laws and the law-makers. He would have strongly opposed any provision to promote ‘Hinduism Foremost’ in India through the Constitution.

Under the system of autocracy the ‘inclusion’ of the citizen by the ruler as part of her/himself was an essential criterion to work the Administrative system. In Democracy, the citizen has to feel part of the ruler or have the authority to show Equality. This is what Mr. Turnbull has demonstrated.

Under autocracy – the junior person completes her/his duty to the structure that supported her/him by being humble with the senior – as Gandhi did by showing respect for the Law of the English when he was a student. But to practice law as a citizen in India – Gandhi had to show equal status and produce independent diverse outcomes. When we are driven by physical attributes including certificates earned in the past by us and those closely associated with us – once we age, we become dependent on juniors who are quick to ‘show’ good physical outcomes. Unless seniors separate themselves from such juniors they lose their dignity as seniors. All politicians who became dependent on rebels, have lost their dignity. The systems structured by them in a ‘free’ environment would not be supported by Tradition and heritage.

As per Times online report ‘Australian Minister for International Development Fierravanti-Wells to visit Sri Lanka’:

[In Colombo, the Minister is to launch a new $15 million programme for over four years ‘Women in Work,’ which will co-operate with Sri Lankan businesses to create extra and better jobs and entrepreneurial opportunities for women.

The Minister will meet some of the 1,000 Sri Lankans who have received scholarships to study in Australia as well as students who have benefited from Australia’s support for Sri Lanka’s education system.]

I am a Sri Lankan woman who worked most of my adult life. I fought against unjust discrimination in Australia largely on the basis of my experience as Sri Lankan woman who was respected at the workplace much more than I was here in Australia. It will therefore be sad if the Sri Lankan woman gives up her confidence to derive this respect in any environment. Under autocracy the senior fills the gap to complete the ownership picture – as we often do in family. Once we measure primarily through money – we need to accept Equal status  when we are not operating within the boundaries of our positions. On that basis – the former President who promoted his son to the latter’s position – had the duty to make himself equal to his son. The failure to do so resulted in bringing ‘home’ structures and their workings into public life.

This kind of thinking was demonstrated through the appointment of  Judges by the Sri Lankan Government:

[National Unity Alliance (NUA) leader Azath Salley yesterday alleged that close on the heels of the raging controversy over the naming of Ramanathan Kannan as High Court judge, Jaffna, under controversial circumstances, the yahapalana administration had interfered in the proposed appointment of the new President of the Court of Appeal.

An irate Salley flayed the yahapalana rulers for following the Rajapaksas much to the disappointment of those who had really believed in a judiciary free from political interference.

President of the Court of Appeal Justice Vijith K. Malalagoda, PC, was recently appointed to the Surpeme Court after being overlooked several times and, as a result, the post of the Appeal Court President fell vacant.

Salley alleged that the government had interfered in the established procedure and recommended Justice P. R. Walgama, third on the seniority list, through the Office of the Chief Justice to the Constitutional Council chaired by Speaker Karu Jayasuriya]  The Island Report – “CC urged to thwart ‘political interference’ Fresh controversy in judiciary in the wake of Kannan affair”

When preparing my submissions in the Colombo Court of Appeal, I begin as follows:

TO HIS LORDSHIP THE HONOURABLE PRESIDENT OF THE COURT OF APPEAL AND THEIR LORDSHIPS THE OTHER HONOURABLE JUDGES OF THE COURT OF APPEAL OF THE DEMOCRATIC  SOCIALIST REPUBLIC  OF  SRI LANKA

If the appointment of the President of the Court of Appeal is flawed – my submission would not be heard from the higher position allocated. Like the Provincial Councils and the Chief Ministers, Judges are independent of the Executive and need to demonstrate commitment to that independence, above all else. The President represents the belief of the Public and not the merit of the Parliament’s Administration. Where a President is active in Administration, the incumbent would find it difficult to separate belief from merit.  In any case, until  Mr. Azath Salley  becomes the elected President of Sri Lanka – he does not have the authority to recommend except through confidential party lines.  The following excerpt from Daily News report ‘ Azath Salley quits as UNP PC member’ confirms the lack of consistency in leadership thought order by this politician:

[Salley was a former member of the UNP's Working Committee and the former deputy mayor of Colombo. He was sacked from the Working Committee of the UNP in 2009 for disagreeing with the party decision on the presidential candidate.

He then joined the then ruling alliance led by former President Mahinda Rajapaksa and was elected to the Colombo Municipal Council (CMC). However after sometime he joined the opposition again after clashing with the alliance members over CMC portfolios.]

Belief confirms consistency and reliability in thought order. Those driven by outcomes would fail in this fundamental rule of Governance.

The previous Government indiscriminately overrode belief through desire to show immediate outcomes to its voters. When the earned ‘freedom’ of a group is interfered with – the return includes damage through which we gained that power to ‘punish’ without common belief. The judiciary itself damages its opportunities to function as an independent body when it uses the Doctrine of Separation of Powers to derive selfish outcomes. The Judiciary must be able to respect itself before it claims equal status as the Parliament representing the People.