Gajalakshmi Paramasivam

26 October  2019

ORPHANS OF COMMON LAW

My cousin Ravi forwarded to me the article by  Ms Kishali Pinto Jayawardene headed ‘Fatal Flaws Symptomatic of the Anti-Rajapaksa Movement in Sri Lanka from 2015 Onwards Have Enabled the Rajapaksas to Make a Comeback in 2019.’

Even though I had already read the article, I reread it  including in my consciousness, Ravi’s wisdom in Multicultural Sri Lanka. Before that I shared with Ravi my own respect for Ms Kishali Pinto Jayawardene’s intellectual leadership. I referred specifically to Ms Kishali Pinto Jayawardene’s talk in Kuala Lumpur about a year ago https://www.youtube.com/watch?v=gyZPxJUrDCU

In that sharing Ms Pinto Jayawardene revealed her experience  with Batticaloa women who felt empowered by RTI (Right To Information) law which helped the women question the authorities about their lost relatives. Ms Pinto Jayawardene revealed that she was physically present with the needy in Batticaloa.  Ms Pinto Jayawardene is an RTI Commissioner and in contrast when I needed to improve Administration in Mallakam District Court in Northern Sri Lanka – I had the parallel status of these women who had ‘lost’ their relatives. Once Ms Pinto Jayawardene left that area – these women would have become like me – orphans of law.

The articles we write and the speeches we make are received by different groups in different angles. Some aspects are not received by anyone at all. But to the extent they are true,  they exist. When someone is in need – that which exists - would come to empower them.

Ms Pinto Jayawardene:

[Exercising discretion in petitioning court

Would not a (dangerous) consequence of the Appeal Court’s reasoning amount to the exercise of such power being, in fact, unfettered, even though this is not directly stated? Perhaps this is what the framers of the 1978 Constitution intended. Indeed, there is some truth in the judicial complaint that, if constitutional limitations were intended, they would have been clearly defined and a new President put under a specific duty to constitute a Cabinet within a time frame. 

In adverting to the matter under review as a ‘one-off’ situation and observing that Articles 43 and 44 in a post 19th Amendment Constitution are significantly different with the current ruling ‘unlikely to have any relevance to the present era,’ the Appeal Court has recognised clear and present perils of this approach.  ]

The reality in Sri Lanka is that majority follow their own law fettered or unfettered. To know whether or not it is Constitutional – one needs to go to Article 16 which provides as follows:

[16. (1) All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter.

(2) The subjection of any person on the order of a competent court to any form of punishment recognized by any existing written law shall not be a contravention of the provisions of this Chapter.]

If therefore Mr Mahinda Rajapaksa acted as per his cultural law,  that would amount to unwritten law. To my mind, a court was entitled to punish the beneficiaries of such action – through written law.

What is an unwritten law? A belief based action is taken to have been caused by an unwritten law. In this instance – the action is the certification of the Dual Citizenship of Mr Gotabhaya Rajapaksa. Mr Mahinda Rajapaksa has manifested evidence of foreigners being considered as outsiders to Sri Lankan Administration especially  in relation to the war. Hence he could not have believed that the war-time Defence Secretary was American. This means that he was not entitled to Dual Citizenship. The unwritten law there was that only a pure ‘Sri Lankan only citizen’ could participate in the war activities. A war without witness needed such pure belief to be healthy for the nation. That would have required  Mr Gotabhaya Rajapaksa renounce his American citizenship while simultaneously applying for Sri Lankan citizenship or waiting until his renunciation of American citizenship was granted, to officially hold any position in the war.

The dangerous precedence that the ruling by the Court of Appeal has established is that at citizen’s level – so long as one is head of the institute one was allowed to act as per one’s wishful thinking which does not require Belief. The parallel of the Armed Forces in Batticaloa & Jaffna was to deny accountability to women without portfolio.

Ms Pinto Jayawardene:

[The Court’s designation of the application as filed for ‘collateral purposes and not a ‘genuine public interest litigation’ is a stinging indictment. Indeed, as the judges have pointed out, it has not even been averred that the petition was filed in the public interest nor has the Sri Lanka Podujana Party (Pohottuwa) been cited as a party, which failure was determined to be a fatal flaw.]

How the matter was put to the Judges and taken by the legal fraternity is the business of the Judicial side of courts. The Equal and Opposite side that belongs to the Public is their own Belief based facts. As per those facts – the citizens who have been active in civil order relationships have found a ‘block’ in their passage in relation to the President as head of State.  This affects all citizens in their own local areas where the elected member is the President of that area as per belief of majority.  If there is a ‘block’ in that belief -based pathway – the relationship is weakened or sometimes broken. We may not know the individual but we all know the President to the extent we are the President’s relatives by lawful conduct.

We are usually bound by belief to immediate family as per our birth environment. When we get married we are relatives by law – be it by religious law or civil law. In most instances – the bondage is stronger with birth families than with married families. Minorities by culture are our relatives-in-law. Those who are not able to believe in relatives-in-law need to consciously apply the written / stated law through which the relative-in-law came into the family. Without belief based unwritten law or written law as per the common pathway – we are not relatives but mere associations for each other’s benefit.

One needs a full structure and various positions to be a relative. The common truth is the natural force that works that structure. To the extent one shares one’s truth – one is entitled to share in the truth of other members in that structure. Where one does not have the opportunity to directly make this contribution – one needs the written law to travel without disturbed by those who do not believe in one.

The two petitioners were relatives by belief to the Sri Lankan Administrators in the Department of Immigration. Unless the Court had evidence that they were abusers of Court Process the Court had the duty to take them as  relatives by law to the Judiciary. Any evidence that contradicted that they were relatives by belief -  ought to be put through the written law – as facilitated  under Article 16(2) of the Constitution. Until then they are as much entitled to unfettered powers of the Citizen as was the President at his level.

As an American by law - Mr Gotabhaya Rajapaksa was an outsider to Sri Lankan Administrative system at the time the dual-citizenship was approved. The two petitioners were pure Sri Lankans by law as well as their own belief. To read their purpose in favour of an outsider is an insult to the unwritten law of citizenship.

The plight of the two petitioners is the parallel of the Batticaloa women who would not have the courage to use RTI when the likes of Ms Pinto Jayawardene are not around. What goes around comes around. If majority Sri Lankans believe in their family and/or public relationships – they will now through Presidential Elections,  write the law that would dismiss the individuals who are pretending to be close relatives through orderly Administration. If Mr  Gotabhaya Rajapaksa becomes President – we are entitled to conclude that majority Sri Lankans do not believe in civil administration. Then we would stop expecting as per the law and submit to the system of Truth which  ultimately delivers to all believers.

Indian Governor General his Excellency Chakravarti Rajagopalachari wrote the song Kurai Onrum Illai (Wikipedia - Tamil: குறை ஒன்றும் இல்லை, meaning No grievances have I) as if  he was a member of  untouchable junior caste. The song was beautifully sung by Lady M S Subbulakshmi of Madurai where Mother Meenakshi is Queen. Lady Subbulakshmi was born in Devadasi (Divine Servers) community  whose female members  were by belief consorts of leaders.  They were also disenfranchised by mainstream society – as mistresses. Until I felt disenfranchised – despite being a good relative – I felt empathy with such groups. But now I know that when we become independent of rules and laws that empower the disorderly – our true belief takes-over and leads us. We then work the system or rather we become the media of truth which delivers  reliable support to all concerned. That is when we are beyond the written law in the divine world of Belief / Absolute Power.

That was why it took the Sri Lankan Government 30 years to eliminate a small group of militants who Believed in their Divine Sovereignty. Like Lady M S Subbulakshmi at least some of them  became highly skilled in the art of fighting with weapons. Their belief based skills exist and would surface again and again when there is disorder in the common law system and they have abided by their own cultural laws.