Friday 21 September 2018

Gajalakshmi Paramasivam

21 September 2018

Is the Chief Minister entitled to the Rule of Law?

To my mind, the core purpose of Law is the development of Commonness in process. Those of us who lack knowledge of the law – have the DUTY to share our Truth in our own language. Truth is the strongest and most reliable power that naturally develops Commonness – including with those unknown to us through common living and /or knowledge. Belief invokes this power. One who has no knowledge of law could be more powerful than one who Believes in the issue. In a court therefore Expression of Belief cannot be of lesser status than that of the  law. Likewise, in Parliament the status of law cannot be less than the status of an expression of belief. In both instances the ‘gap’ between Truth and Structure – becomes invisible power – that motivates us to keep going. Gandhi was rich in this power.

In contrast, Mr CV Wigneswaran -  a former judge of the Supreme Court of Sri Lanka and currently the Chief Minister of Northern Province, is weak in this power. This to my mind is due also to the Chief Minister indiscriminately mixing Judiciary and Executive Government. It is like saying that I am Colombo resident as well as Jaffna resident during the same period. The two can merge at the higher common level. But the credit  must be to the place that is currently seen by her/him as her/his home. This is now an issue before the Sri Lankan courts in relation to the Jaffna Municipal Council elections. One needs to ask whether the any breach by the Chief made a causal contribution to this outcome?

The decisions in the mind of the Chief are effectively her/his actions. A Chief Minister who carries his Judicial status as a crown, is continuously acting in breach of the Doctrine of Separation of Powers between the Judiciary and the Executive Government. This weakens the investment that we the ordinary folks make in democracy in that area/land-space.

It is reported that Mr Wigneswaran’s Counsel needed a Supreme Court-Court of Appeal Rule and mode of procedure to summon his client in terms of contempt of Court. :

[Senior Counsel K. Kanag Iswaran PC took up a preliminary objection based on the Constitution on the jurisdiction of the Court of Appeal to proceed with the Contempt of Court allegation.
President’s Counsel Kanag Iswaran contended that it is not prudent for contempt proceedings in the absence of SC-CA Rule and mode of procedure.
] – Daily FT report ‘
Kanag Iswaran PC takes up preliminary Objection

Mr Wigneswaran’s Counsel contradicted this by the following :

[The liberty of a person under the constitution cannot be deprived except according to procedure established by law which is guaranteed under Article 13 of the constitution and read out in support a passage from the book on Fundamental Rights written by Former Chief Justice Sharvananda, he pointed out.]

The writings outside the current structure of the Court system are valid when they are based on Common Belief in that structure. Hence the validity of Case Laws. The mind structure of Justice Sharvananda within a Court structure is acceptable on the same basis as case law – only to the extent he embedded this in one of his judicial decisions. Such a mind is senior to the current judge. Hence Mr Kanag Iswaran PC, contradicted his own theory that a specific rule was needed by the current Supreme Court-Court of Appeal to act one way or the other.

The Belief of those in that Judicial system is the Chief’s authority until proven otherwise. Belief being Truth based will answer to any problem reliably. In other words, Belief produces the perfect rule.  Article 136 (1)(b) from  which Mr   Kanag Iswaran PC draws authority states as follows:

Rules of the Supreme Court.
136. (1) Subject to the provisions of the Constitution and of any law the Chief Justice with any three Judges of the Supreme Court nominated by him, may, from time to time, make rules regulating generally the practice and procedure of the Court including –
(a) …………………..
(b) rules as to the proceedings in the Supreme Court and Court of Appeal in the exercise of the several jurisdictions conferred on such Courts by the Constitution or by any law, including the time within which such matters may be instituted or brought before such Courts and the dismissal of such matters for non-compliance with such rules ;

No provision in the Constitution has been cited, as preventing expressions of Belief by a Chief from making a decision. In fact Former Chief Justice Mr Sharvananda  did not bring in a rule to bar such action. By leaving it open – Mr Sharvananda has shown respect for the belief of the Chief of the Chief Court to make the decision.

Be that as it may, one needs to examine the state of affairs of the Judiciary in Northern Sri Lanka, during the Administration of  Mr Wigneswaran as its Chief Executive. As per my experience the Chief Administrator of the Mallakam District Court did not need any rule to takeover the Administration of the Estate of our Brother Mr Subramaniam Yoganathan. He in fact made a rule that I needed a court order for him to even receive my letter to the opposition lawyer explaining our interpretation of the decision by the Court of Appeal which was being executed by the lower courts – without a specific order from the Court of Appeal. I wrote as follows to the Chief Administrator of the Mallakam District Court, on 09 September 2018:

[The ‘dismissals’ by the courts did not mean that the Registrar of Court had the authority to ‘Administer’.  During my visit in May this year, when I asked the Registrar of the Civil Appellate High Court – Jaffna about getting that Certificate of Heirship – that Registrar said that our lawyer needed to file a motion for it. When I asked Mr Manivannan who represented us  to do so he said that Mr. Yogendra needed to file the judgment in Mallakam District Court and stated further that Mr Kanagasinghm who represented us in Mallakam District Court had to move the relevant motion in Mallakam District Court. I gave up and then my husband wrote to Mr Yogendra who spoke to my husband but did not say a word about the motions he had been putting through at Mallakam District Court.  But the Lord of Justice whom I bow to each time I am in open Court – revealed to me what has been going on without any word to us from the Mallakam District Court.  As active participants we were entitled to be updated by the Court about such moves. That to me is basic in balanced Administration. …………………….
You confirmed  serious dependence on the Judiciary when you stated that I needed to submit copy of my letter to Mr Yogendra, through a motion.  To my mind, it looks as if you made up your mind about the ‘outcomes’ that would please your seniors and then used the authority of your position to ‘rule’.  To my mind, your duty is to first construct your pathway as per the law – and deliver service as per that structure. We the litigants  are on the other hand entitled to present our Truth – as per our own conscience and where possible within the form outlined by the relevant laws – in this instance the Civil Procedure Code for Administration and Thesawalamai for Succession . If you foreshadow outcomes prematurely – you fail to include our Truth and the Courthouse fails to serve the Public but the staff and the judiciary. Our Truth may or may not be given form by laws – especially laws that are no longer relevant. But Truth will eventually succeed over disorder – which disorder  is intrinsic part of  the minds of those who oppose Truth., including by using irrelevant laws.  This case has confirmed to me that one would be unwise to use the Judicial path in its current structure, towards self-governance in Northern Sri Lanka. THAT to my mind confirms the weak contribution by the current Chief Minister of Northern  Province, who also has indiscriminately mixed Judiciary status with Political powers. To my mind, it is highly likely that you would hear the voice of Mr Wigneswaran – who continues to use his past Judicial status actively to elevate his status.  Like Mr Manivannan, you are also Mr Wigneswaran’s  heir in breaching the Doctrine of Separation of Powers. ]

My regular communications including the above letter, went to both Mr Wigneswaran as well as Mr Kanag Iswaran, who owns a traditional home in Sangarathai-Thunaivi where we have our family temple. Mr Wigneswaran was the Chief Guest at a function where the building he opened was built on by a member of the Diaspora, on someone else’s land. Those ‘disorders’ dilute their investments in law and order through external knowledge. Belief is our root cause of common order. Without belief in order – their disorder driven by selfish outcomes becomes the root cause of their manifestations. Hence the saying ‘Haste makes Waste’.

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