Gajalakshmi Paramasivam

13 April 2017

Judiciary, Race & Caste systems

[The judicial appointments to Sri Lanka’s judiciary hold a prominent and important place. As an independent arm, its appointments are highly anticipated and looked upon by all parties in society. Throughout its history some appointments have been looked down upon as politically motivated or as being used to achieve the goals of certain political parties or politicians.

In the recent past the scenario which arose with former Chief Justice Shirani Bandaranayke who proceeded and succeeded former Attorney General Mohan Peiris, considered the 43rd de facto Chief Justice of Sri Lanka after President Maithripala Sirisena declared his appointment void in 2015, brought about such confusion. The most recent appointment to draw flank from several parties, including the Judicial Service Association was the appointment of Ramanathan Kannan an Attorney-at-Law from the private bar of Batticaloa.] The Sunday Leader article - Judicial Appointment In Turmoil

As is the case with any position – there is the apparent and there is the real. The real is as per our contribution to the position. If there is position, there is relativity. If our apparent contribution to the position is more than our real contribution – we start disconnecting from the institution itself.

As per my experience as a lay litigant in the Sri Lankan Court of Appeal (which also would have contributed to the current outcome), the current judges of the Court of Appeal do not seem to have the will or the authority to override lawyers of high status. I terminated the services of our barrister who as per my belief, did not connect to my belief that I was fighting to uphold my fundamental rights to hold Land in  Colombo. I represented myself and have submitted to Court the ‘facts’ (that were ignored by the Colombo District Court) – primarily the records of  court decision submitted as evidence by my opposition that included the ‘fact’ that another party was residing at the premises to which my opponent was claiming ownership through Prescription. I discovered this ‘fact’ sitting in my Sovereign home here in Coogee, NSW, Australia, where Truth through Common culture is upheld as priority over individual cleverness. In addition, I identified and highlighted that in this instance, 30 years and not 10 years of continuous occupation was needed for another person   to claim prescriptive rights. (as per Section 13 (e ) of the Prescription Ordinance).

They say that the strength of a chain is its weakest link. The strength of any institution is its weakest position. Where judges are dependent on lawyers both positions are weakened. Then the relationship is naturally ‘dissolved’ to de facto style – based on current outcomes only (as in majority vote) or reverse leadership happens with the lawyers taking over the Judiciary – as children rule over parents.

Where this happens – it is the duty of the citizens to restructure the Judicial system. If the President appointed Mr. Kannan in good faith – and for genuine political reasons – then he was effectively restructuring the Judicial system away from processes that disadvantage the Public. In my case, I went all the way from Australia to make my arguments in court in addition to preparing my submissions. The other side did not need an outstanding lawyer of high status to present the case against me – a lay litigant, unless they wanted to win through subjective influence of the lawyer in court.  All they needed to do to uphold fairness was to present the mind of their barrister Mr. Faisz Musthapha through one of the juniors and through written submissions. But the relationship was direct between the judge and the lawyer – often resulting in postponements. Under those circumstances, the requirements on the side of a lay litigant also need to be set at a lower level or the side that failed to follow Due process as expected by the Common citizen, needs to be penalized through ‘costs’.

Recently a Vaddukoddai, Sri Lankan friend visiting Australia sought my services to edit her translation of Australian National Anthem to Tamil. In that the lady used the Tamil equivalent of ‘Justice’ as the translation of ‘Fair’ in ‘Advance Australia Fair’. I substituted the Tamil word ‘Niyayam’ that to my mind came closest to Fairness. Just outcomes need firm institutional structures to maintain their credibility. In a young nation like Australia, one needs to be more conscious of ‘Fairness’ than ‘Justice’ to be socially harmonious.

In his determination of Fairness in this matter  the Hon Mahinda Rajapaksa  states:

[If the private bar is given the power to recommend the appointment of judges, that would corrupt the entire legal system with judges being dependent on the lawyers appearing before them for promotions and appointments.]

At litigants’ level – the parallel of the above would go as follows - ‘if the lawyers lead the judge – the richer side that hires the higher status lawyer wins’ – often through postponements on the basis of personal reasons. Mr. Rajapaksa is reported to have stated also:

[The accepted practice in this country is that virtually all the judges serving on the Supreme Court, Court of Appeal and High Court are promoted to those positions through the ranks of the judicial service or to a lesser extent, the Attorney General’s Department]

That to my mind is the parallel of the Caste system through which - only those of Brahmin caste or to a lesser extent Garland-makers were promoted as priests of Hindu temples .  The strict rules to qualify to hold the position of  garland-maker are indicated by the following:

[In Srirangam Ranganathar temple only garlands made by temple sattharars (people who make garlands and never marry - surrendering their life to the lord's service) are used to adorn Lord Ranganatha. No other garlands, flowers are used there. Sattarars have traditional rules for everything - from plucking the flower to making garlands. Some of them are as follows:

The flowers should be plucked in early morning.

The flowers should not be smelled by anyone.

They should be plucked only after having bath.

The flowers which fell down on earth or dirt should not be used.

Namajapam or the repetition of holy names should be done while plucking flowers.

While making garlands they keep flowers and other materials on a table because the garland for God should not touch the feet. It is always kept above hip level.] Wikipedia

The responsibilities of the Brahmin are on the other hand indicated as follows:

[The 1st millennium CE Dharmasastras, that followed the Dharmasutras contain similar recommendations on occupations for a Brahmin, both in prosperous or normal times, and in the times of adversity.  The widely studied Manusmriti, for example, states:

Except during a time of adversity, a Brahmin ought to sustain himself by following a livelihood that causes little or no harm to creatures. He should gather wealth just sufficient for his subsistence through irreproachable activities that are specific to him, without fatiguing his body.

He must never follow a worldly occupation for the sake of livelihood, but subsist by means of a pure, upright and honest livelihood proper to a Brahmin. One who seeks happiness should become supremely content and self controlled, for happiness is rooted in contentment and its opposite is the root of unhappiness. — Manusmriti, Translated by Patrick Olivelle]  Wikipedia

The lower the social ranking the more one needs specific rules. Hence those who come through the Attorney General’s Department which in Sri Lanka is part of the Executive Government would be under the influence of the Executive even in a free environment, unless they of their own freewill first become citizens without portfolio and then become part of the judiciary. It’s similar to migration from Sri Lanka to Australia.

The lawyer driven by money is likely to lead the Judiciary to de facto status. The civil administrator driven by the Executive is likely to lead the Judiciary to become dependent on the Executive by reversing  the pyramid of hierarchy without paying her/his respect to the Judicial elders who maintained the high value of the law as an independent government finding its own balance in its own world through all its citizens which may not include many politicians who did not participate in Court and/or did not accept the verdict of the Highest Court as the verdict of the law itself. This did not happen in the case of the former government which dismissed the then Chief Justice by acting outside due process. That’s the karma that the seat would inherit without disconnection from the past forms of government – including on seniority basis.

While we play around with the apparent, the real develops its own structures. Those who forewent earned benefits to uphold that which represented their Truth – will find their own internal balance in due course. That is the natural promotion of ourselves to the positions of judges especially in social environments where institutional ties are less apparent.