08 July 2018
South’s Male Chauvinism to Demote North’s women?
[State Minister for child affairs Vijayakala Maheswaran’s resignation over her recent call for the LTTE’s revival is no excuse for Attorney General Jayantha Jayasuriya not to indict the Jaffna District MP in Court of Appeal, top constitutional affairs lawyer Manohara de Silva, PC, says.] The Island article ‘Call to revive LTTE: Vijayakala’s resignation no excuse for AG to drop criminal proceedings’
When Mr Wigneswaran referred to LTTE chief as ‘brother’ in political context – there was no such call from Mr Manohara de Silva, PC. Was that not also a resurrection? But then Mr Wigneswaran is a male and is of the same judicial family as Mr Manohara de Silva. It is common understanding in Colombo legal circles that the outcome of a matter before the court depends strongly on the dynamics between the judge and the respective lawyers. If that pathway is common to both Mr Mr Manohara de Silva, PC and Mr Wigneswaran – it is valid in a Court of law to the extent a decision is made on ‘Balance of Probability’ method. I included this in my advice to an academic fighting against the Governing Council of the University of Jaffna:
In a family case (Re B  UKHL 35), Lord Hoffman answered that question of Balance of Probability test using a mathematical analogy:
"If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened."
If the evidence by the witnesses brought in by the University Administration was found to be conclusive as to whether or not the accused did act as charged – then the ‘Balance of Probability’ test would not have been necessary. On the other hand if the cultures of the hearing members were more like that of the University Administration – then the test is not legally valid. In this instance – the members of the ‘Tribunal’ were advisors to those who appointed them and are therefore disqualified from making ‘legal judgments’ especially on the basis of ‘Balance of Probability’ test.
In another family case (In re H (Minors)  AC 563 at 586), Lord Nicholls explained that it was a flexible test:
“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”
The above advice is in relation to charges of sexual harassment and breaches academic administration, out of which the latter were dropped after an inquiry.
In the case of Mrs Vijayakala Maheswaran, no such Administrative breaches have been highlighted. The charge is war harassment. Since war did not happen due to her call, the question would be whether war was likely to happen. This requires an answer of 1 as per the evidence submitted by the Prosecution. Be that as it may, in a court of law – it would become an offence only if it is in breach of a stated law. According to Mr Manohara de Silva, that law is Article 157A.
The wrongs as per Article 157 A of the Constitution are:
[(1) No person shall, directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka.
(2) No political party or other association or organization shall have as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka.]
Mrs Maheswaran was taking the positive aspects of LTTE in maintaining order – especially in relation to sexual pleasures. This is considered a virtue of LTTE by majority Tamils. Does this amount to ‘establishment of separate state within Sri Lanka?’ It would if the rest of Sri Lanka were not committed to upholding such virtues as a top priority but letting each individual to unit to have their own rules about it. In fact through Thesawalamai Law, we are separate state in those issues. The people to whom Kandyan law applies are reported by Wikipedia to include those in :
Chuniyachedkulam Korale East and West and Kilakkumale Korale South of Vavuniya District in the Northern Province
Kurunegala District and Demala Hathpattu of Puttalam District in the North Western Province]
Taken on issue basis – they are separate to Northern Tamils covered by Thesawalamai Law. Only those issues not covered by our respective customary laws are/should be covered by Common law.
To sue someone without knowing the legitimacy of the ‘Purpose’ is an abuse of Court process. Separation on the basis of Customary laws has been a reality in Ceylon/Sri Lanka for centuries. One who interprets the above article of the Constitution without respect for that Separation of Powers is espousing a different Sri Lanka to the one s/he inherited. THAT is punishable by Dharma. It is to prevent such gambles on the basis of outcomes that Democracy separates on the basis of electorates based on common living which promote harmony. How this is achieved in Jaffna will be different as to how it is achieved in Colombo. In fact Mr Manohara de Silva, PC is acting in breach of the fundamentals underpinning the Doctrine of Separation of Powers between the Judiciary and the Executive Government. Under fundamental rights – Mr Manohara de Silva has every right to initiate legal action as a citizen who apprehends violence from North. In fact a Jaffna Tamil could also initiate such a move. But to be truly valid – they must believe that such a pathway would damage their own investment in the common pathway. Our Constitution is about Fundamental Rights and Responsibilities. They should not be brought down by the desire for quick and easy outcomes.
The LTTE have left many positive Energies in parts of Sri Lanka that they considered to be ‘home’. Hierarchical order is one of them. This happened due also to the right practice of the caste system – based on jobs. Relatively speaking Southerners tend to be ‘friends’ with their juniors – probably because they did not need the vertical system as much as minorities. When it comes to exercise of subjective power in orderly manner – the Northern culture is strong enough not to need to learn from other cultures in Sri Lanka. This does not mean that they are seeking separation from the rest of Sri Lanka.
Most Tamils do not know what State meant to the LTTE. To most Tamils known to me – it was separation of powers to prevent invasion by majority culture.
Tamils need to be facilitated to find their own internal solutions. Premature actions by pundits to ‘show off’ will lead to Tamils abandoning that internal process and waging war against makers of irrelevant laws – as interpreted by Tamils who do not have the opportunities to learn about other laws covering multicultural areas.