Gajalakshmi Paramasivam
20 January 2018
TNA’s
Political Position – Interlocutory Order
or
Final
Decision by Tamils of North-Eastern Sri Lanka?
Yesterday
I was advised by my client that Professor Tharmaratnam walked into the inquiry
room in which submissions were being made in relation to accusations made and
actions carried out by the Vice Chancellor of the University of Jaffna. The
academic who sought my advocacy brought
this to my attention. I wrote:
“To my mind – Professor Tharmaratnam came because YOU did
not have enough faith to send the submission to the Council members. Professor
came for the very reason I have highlighted in the Affidavit – that the lawyers
were disrespectful of Academics. He is one of the victims of that kind of
suppression. Hence he came. Since I do not know what ‘happened’ – I attribute
it to God’s system – through which the Council came to me. Now the Tribunal
knows that the Council is awake. So don’t dilute the value of that
manifestation and devalue your own returns from this. Professor Tharmaratnam is
a Maths Professor and our family has invested deeply in Maths. These are the
ways of Nature / Truth to maintain the Cosmic balance. You are not even a
Professor in Music. You need to take your position below Professor Tharmaratnam
and not equal to him or worse above him”
The
academic wrote back and apologized for concluding prematurely. The background
to this could be worked out from the following part of the Submission:
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Some examples of Governance values in this
matter:
16.
Prof.
V.Tharmaratnam, Council Member (External), University of Jaffna, Sampanthar
Candy, Karainagar.
Has
wisdom in representing himself in Storer Duraisamy Yogendra
& Balasubramaniam Thavabalan Vs. Velupillai Tharmaratnam
17. As per published report Professor Tharmaratnam’s stand as
Respondent in the above case in respect to lawyers Storer Duraisamy Yogendra & Balasubramaniam
Thavabalan
– who are the parallels of the legal officers Mrs Kishore Anton and Mrs K
Athithan representing the University of Jaffna Council (including Professor Tharmaratnam) in this
current case against Dr Darshanan, was presented as follows:
[The Respondent who is a highly qualified academic and
former Professor of Mathematics attached to the University of Colombo and the
University of Jaffna, had claimed in his plaint that his reputation and
dignity had been injured by certain statements forming part of the pleadings
in another action, namely, D.C. Jaffna case No. 130/Misc., which had been filed
against him by the said Karthigesu Sivaharan, whose pleadings in the case
were alleged to have been prepared by the said Appellants in their
professional capacities as Attorneys-at-law.
The Respondent, who appeared in person, conceded
that this Bench, as presently constituted, is bound by the decision of the
Bench of 5 Judges of this Court in the
Rajendran Chettiar case, but strenuously urged that this appeal be
referred for consideration by a Bench which would be numerically superior to
the Bench that made the Rajendran Chettiar decision, as otherwise,
irreparable prejudice would be caused to him. ]
18. It is submitted
that the parallel of Dr Darshanan’s matter – as to whether the decision should be made through an
Administrative process or Governing pathway, in the above matter was whether
or not a decision by a court was interlocutory or final as explained in the
following reasoning by the Experts in Law:
[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. ”
Lord Esher, M.R. cited by Hon Justice Saleem Marsoof, P.C.,
J. in Storer Duraisamy Yogendra & Balasubramaniam
Thavabalan Vs. Velupillai Tharmaratnam]
19.
It is therefore
submitted that when a decision is Administratively incomplete within that
Institution, it is interlocutory due
to the internal process being incomplete but when that decision is delivered
after due completion of the
Administrative processes by both sides – it is final. When it is final it is
a Governing decision which becomes wholesome at that level and is ready for
rebirth in the Higher Court through Appeal process and the party appealing
does not require leave to Appeal.
20.
It is submitted that other members of the
Council such as Dr. Aru
Thirumurugan, Dr. Devanesan Nesiah,
Mr. N. Vethanayahan & Ms Shantha
Abimannasingham P.C. who are known to actively take part in
National affairs would be able to relate to this matter through the rulings
in the Rajendran Chettiar matter.
21. In presenting
the appeal from the order of the Provincial High Court of Civil Appeal of the
Western Province (Holden in Colombo) in
S. Rajendran Chettiar & Others Vs S. Narayanan Chettiar, Dr.
Shirani A. Bandaranayake, is reported to have stated:
After an examination of the
aforementioned decisions, Sharvananda, J., (as he then was) had held that for
an ‘order’ to have the effect of a final judgment and to qualify to be a
‘judgment’ under section 754(5) of the Civil Procedure Code,
“1. it must be an order finally
disposing of the rights of the parties;
(emphasis
added)
2. the order cannot be treated to be a
final order if the suit or action is still left a live suit or action for the
purpose of determining the rights and
liabilities of the parties in the ordinary way;
3. the finality of the order must be
determined in relation to the suit;
4. the mere fact that a cardinal point
in the suit has been decided or even a vital and important issue determined
in the case, is not enough to make an order, a final one.”
38 .It is submitted that the above is applicable in the case
of Governing decisions required by law to be made by the Council of the
University of Jaffna. Where there have been Administrative decisions which
leave the question of rights and liabilities of one or both parties unaddressed
and incomplete, the decision carries with it the characteristic of Militancy – even if the responsible
party is the Vice Chancellor and/or
the Executive body of the Council.
39.It is submitted also, that this is of value to law
academics like Mr Kumaravadivel Guruparan who led the investigating team in
this regard in 2012 but whose report was never published for Management or Governance
purposes.
40.It is submitted that this could be used for the purposes
of improving not only the investment of the University in law and its
interpretation by non-legal practitioners but also to help victims of war
through investment in Psychosocial problems and opportunities of global
standards.
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I
strongly recommended to my student-client that he forward the submission to the
Governing Council of the University of Jaffna which is the Disciplinary
Authority in this matter. But my student-client was hesitant to exercise his rights as he had
been previously ‘told’ not to do so.
It
is understood that in his Affidavit, the Defendant in the above matter stated:
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1. During this visit, Mr.Guruparan said that
they had come to inquire into complaints from staff and students about my
administration. I list a summary of the this ‘investigation’ by that
committee:
(i)
They said they had come
as per the instructions of the Dean of Arts to inquire into Administrative
issues. I confirm that they did not say anything about Sexual Harassment.
(ii)
Since they said they did not want to go into the office, I led
them to Music Lecture Hall 10 – so they could speak to me in private. Later
they sought to speak to the staff in the staff room but did not invite me to
join them.
(iii)
I was not advised by them about whether or not they were going
to speak to students. I have no knowledge about any student contact by them
and I concluded that they did not speak to students.
(iv)
They said words to the effect ‘Some academics have difficulty with Administration. You seem to have
such difficulty. It’s your teaching position that gives you your main income.
We advise you to therefore voluntarily give up your Acting Head of Department
position and keep your teaching position.’
(v)
When I asked them, who had sent them and they said Dean of
Arts I asked them whether they had any letter from the Dean? - they said
‘no’. I said that I also did not get any letter from the Dean about this.
They said that the Dean had given verbal instructions to this Sub Committee
of six, about which Committee I also had knowledge of through the Minutes of the Arts Faculty Board
meeting.
(vi)
Before leaving Mr. Guruparan said words to the effect ‘It would be better for you to give up the
Acting Head of Department position because many staff are against your
management.’
(vii) I said that if majority are in favour of my
management then I see no reason to resign.
(viii) Mr. Guruparan said words to the effect ‘that is not the case because many would
remain silent due to fear of persecution by you’
(ix)
I said that there was a clear example within the Faculty of
Arts where the Dean of Arts was elected by a majority of 1 vote and hence I
see no reason why the Faculty of Arts cannot sustain such objections from
five staff out of 25.
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The Hon
Rajavarothiam Sampanthan who is the leader of the Opposition in National
Parliament, once raised the question as to how our youth got to be a militant
community? I discovered many clues to
the reasons through my services to the University of Jaffna through the above
matter.
It took me long years of inner search to appreciate that
Natural Justice steps in when at least one side is a true owner of the
institution concerned. When I assembled peacefully and within the boundaries of
the law, to talk to the Vice Chancellor of the University of NSW, I was
arrested by the Police for alleged Trespass. This was despite both Chancellors of my time expressing identity
with my contribution to the University – Sir Anthony Mason through his law expertise
and Dr John Yu through his wisdom in managing multicultural workplace. When I
was arrested despite the recognition by both Chancellors, the Truth manifested
Itself in support of the true opposition at the level of the custodians of
power. They were the migrant staff in Liverpool Clinical School – which was
also Equally serviced by me despite the distance I had to travel. To my mind, Liverpool
Clinical School is the parallel of Jaffna in the Sri Lankan issue.
Now I realise that the Administration was not able
to lift its level of thinking to the higher standards of a global citizen.
Chancellors of the Australian Universities seem to be persona non grata and
hence did not count with the Police. Likewise the Governors and Chancellors of
the Sri Lankan Universities.
The appearance of Professor Tharmaratnam at the inquiry, brought
to my mind, a recent domestic example that
confirmed to our son that I was his Governing parent. Pradeep picked went out
to get us all breakfast and informed me as is our family standard, that he was
going out. Later, he came back and said
he was going out for a haircut. For some reason I said ‘make sure you take the keys with you’. He said ‘yes’. A few minutes later, he was
knocking on the front door and his daughter answered. I learnt that he had come
back for the keys that he had left behind!
Later I asked him two questions:
1.
Q:
Did I remind you about the keys when you went to get Breakfast? -
A: No
2.
Q:
Did I remind you about the keys when you went out the second time? -
A: A smile
The unspoken lesson : I am still the parent with
Intuitive insight into my son’s mind.
THIS is Governing power. Tamil National Alliance
(TNA) likewise has this intuitive power
with the Tamil people of Sri Lanka due to our National level investment and
beyond. The militancy was to separate. Those of us who contribute to the
Independence of Tamils at National and Global levels – will continue to support
TNA in its evolved forms and not Mr. Varadaraja Perumal who is part of the militant
community and who is reported to be finding fault with the TNA, nor Northern Chief Minister the Hon C. V.
Wigneswaran who is reported to have ‘stressed on the need to find a political
solution for the Tamils through an International legal framework. Wigneswaran
was addressing a special meeting, convened by the Tamil People's Council (TPC)
under the theme ''informing people”.’
The Rights of any person/group
needs to be confirmed through manifested values that demonstrate the level of
realized Independence as an autonomous person/group. In company law – the Public
company continues despite the changes in physical form of ownership. Militants
who depended on armed power to ‘show’ wins – were limited to their physical
powers. They did not represent Tamils of Sri Lanka as a community. They
represent/ed militant Tamils. Mr Wigneswaran seeks a legal framework when in
Jaffna – the highest representation of Intellectual Independence has eroded to
such a low level that the Vice Chancellors would act ultra vires the Law while
the Chief Minister is distracted by Political status that would bring global
attention. It may be Tamil People’s Council alright – provided it says Foreign
Tamil People’s Council. If indeed Mr Wigneswaran had been a true representative of
Jaffna Tamils – he would have intuitively picked up the problems at the
University of Jaffna and resolved the problem through Governance powers. Every
self-governing Tamil is a representative of the true Tamil Community in Sri
Lanka.
The reason why a
legal framework would not work for Sri Lankans is the lack of Independence of
the Judiciary – be it Tamil or Sri Lankan. If former Chief Justice Dr. Shirani Bandaranayake had been truly independent - the lady would have been retained by the
current government or hired by Mr. Wigneswaran’s TPC.
Premature award of ‘rights’
would lead to Division, because like money in family – political & legal wins
would divide – as illustrated in the Appendix.
APPENDIX
Except
from the Submission to Tribunal appointed by the Governing Council of the
University of Jaffna
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10.The
lay example that best represents this ‘ownership’ value at global level is
the legend of two mothers claiming a child – narrated by Wikipedia as
follows:
“The Judgment of
Solomon: two women
each lay claim to being the mother of the same child. Solomon easily resolved
the dispute by commanding the child to be cut in half and shared between the
two. One woman promptly renounced her claim, proving that she would rather
give up the child than see it killed. Solomon declared the woman who
showed compassion to be the true mother, entitled to the whole
child”
Causal Forces
beyond the Control of University Administrators
11.It is
submitted that this matter is of great importance to the Tamil community as
well as Sri Lankan society to appreciate:
(i)
Provincial level – whether University of Jaffna
represents Self-Governance or Militant leadership
(ii)
At Country level - whether we vote for a Unitary State or Federal State or its
extreme example of two or more Countries
(iii)
At global level, it is about whether Sri Lanka as
a State is to be Administered or treated as an Equal to another member of the
United Nations.
(iv)
At family level it is about whether we live under
one leadership as an extended family
or whether we spread laterally as autonomous units with Common values – especially when children get
married and develop their own family units. The child in the above example is the parallel
of : Northern Province (i) , Sri Lanka
(ii) , Global minded Public (iii) the Family (iv) respectively, in the
above samples.
12.In
this matter - the child is the University
of Jaffna representing the investment in Higher Education by Tamils of Sri
Lanka towards Higher mind structure when claiming to be self-governing as a Community.
13.It
is therefore submitted that if dealt with at the primary level – the smiling
woman who would have half the body instead of the Dignity of Motherhood would
win. An illustration of how University & Court decisions impact on
families that have invested in Higher
Education is demonstrated through the following excerpt from Chapter 5 of
‘Naan Australian’ (which has found a home in the National Library of Australia). It is now
part of the Library of the University of Jaffna also. The except is the
confirmation of a Mother’s role, as
contributor to the Higher Education of the family – as recognized by Mr
Pradeep Paramasivam – an Engineering graduate of the University of New South
Wales and an Architectural graduate of the University of Technology, Sydney:
14. [Pradeep wrote in relation to my need to be released
from prison where I was taken due to Magistrate Pat O’Shane’s ruling:
‘RE: THE INCARCERATION OF GAJA
LAKSHMI PARAMASIVAM
To Whom It May Concern:
I am writing this letter to express my concern about the potential
incarceration of Mrs. Paramasivam and the great disservice to the community
that our judicial system and medical services are doing in handling this
matter.
Mrs. Paramasivam is my mother. No son wishes to see their mother in
prison and worse still have to hear about the trauma she had to undergo with
the threat of forced sedation that was exercised by a doctor at
My mother was both forced to
resign and later be unfairly dismissed by the
Following this agreement, the University made no attempt to facilitate
a meeting with her, and she had to suffer the indignation of being arrested
for trespass in trying to organize a meeting with the Vice Chancellor. The
charges were dismissed given she had a lawful excuse to be on the University
premises.
After this the university did organize what appears to be token
meeting between her and the Vice Chancellor, so as to be seen to be adhering
to the Supreme Court order. It is inconceivable that anything could be
resolved by such a brief forum and highly reasonable for Mrs. Paramasivam to
seek a further audience with the Vice Chancellor. Her attempt to do so has
resulted in the current arrest for trespass and the sickening guilty verdict.
It is truly shameful that a person who has stood by their principles
is being humiliated in this manner. My mother, Mrs. Paramasivam, has been
uncompromising in maintaining her honesty, and it is disheartening to see her
being punished for this. Whilst, being family, I would blindly support my
mother, in this instance I do not need to be blind, because being aware of
the matter, it is clear that she has been treated unjustly. She has my full
support and admiration, simply because
she has her integrity.’]
Chapter 5 (page 79 ) Naan Australian
15.It
is highlighted that the Defendant has acknowledged at paragraph 2(i) of his
Affidavit dated 04 January 2018, under - ‘Balancing the Footing’ - the involvement in this matter, of the
author of the book ‘Naan Australian’ which book is also about the dignity of
a woman – especially an educated woman to whom also Jaffna is ‘home’. From the victim’s point of view – Dr
Darshanan identifies with many common aspects to know that he is not alone.
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