Gajalakshmi Paramasivam

http://austms.blogspot.com.au/

01 July  2020

Awakening of the Law by Buddhist monk and LTTE

Most of us are familiar with De facto government including in Tamil areas of Sri Lanka during the war period. Not many of us consciously identify with De Jure government. To my mind, the best example of  De Jure governance is Article 9 of the Sri Lankan constitution.

I looked up its parallel - Article 356 of the Indian constitution when studying the case law S. R. Bommai v. Union of India, highlighted by Mr N Sathiya Moorthy through his Colombo Gazette article ‘President's powers and Parliament’

Article 356 of the Indian Constitution begins as follows:

[356. Provisions in case of failure of constitutional machinery in State

(1) If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation

(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State;

(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;………………………….]

Mr Sathiya Moorthy  concludes about the 2018 Constitutional challenge in Sri Lanka:

[In simple terms, in the said case, a seven-Judge Bench of the Supreme Court unanimously declared that the President did not have the powers to dismiss an elected Government. Instead, the court insisted that Parliament alone was the forum to decide the majority of a Government in office.]

The Indian parallel is presented as follows by Wikipedia:

[S. R. Bommai v. Union of India ([1994] 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC1) was a landmark judgment of the Supreme Court of India, where the Court discussed at length provisions of Article 356 of the Constitution of India and related issues. This case had huge impact on Centre-State Relations. The judgement attempted to curb blatant misuse of Article 356 of the Constitution of India, which allowed President's rule to be imposed over state governments]

To my mind this is very relevant in the ‘Dismissal’ in Australia - of the Whitlam government by the Queen’s representative in 1975.  In essence it was a battle between Governance and Administration. In the Bommai case the court set down the following standard amongst others:

[Article 356 is justified only when there is a breakdown of constitutional machinery and not administrative machinery]

The parallel of the above was discussed by the Civil Appellate High Court in the Testamentary case of my brother in law Subramaniam Yoganathan as follows:

 [10) It is submitted, on behalf of the 02^nd Respondent-Respondent that even though, the value of movables in Sri Lanka is about less than a Million the Law does not clearly permit the monies lying in Barclays Bank to be subjected to jurisdiction and administration by the Sri Lankan Court. It is for the Probate Court of U.K.  to administer same. It is untenable to combine, the monies lying in U.K. and in Sri Lanka, to make it appear, the value of Assets (movable are more than Rupees Four Million Rs. 4,000,000/-) and to claim for Letters of which is contrary to Law

11) This had been fully analysed by the Late Supreme Court Judge Hon Dr. Mark Fernando in his judgment Ratnasingham Vs Tikiri Banda Disanaike and Others – report in 1998 1 SLR]

And

[In their submission at folio 46 of the Brief – the Petitioners refer us to the case law Puthathampy et al v Milvakanam et al – details of which are at folio 61 of the brief

The Hon Judge states in that:

‘Thesavalamai undoubtedly is the law governing inheritance in the Northern Province, but subsections 5 and 7 of section 1 seem to me silent as to the succession of remote relations to each other. 5 and 7  deal only with the succession inter se of members of the same family, father and mother, brothers and sisters.

I presume that when the Thesavalamai is silent the law of succession in the rest of Ceylon must be applied; If so then the first and second plaintiffs should get one-third, the fourth defendant one-third, and the first, second, and third defendants one-third.’]

In essence, Governance law is belief based and hence applies to Succession. Administration need not be purely on belief but may include intellectual logic. Wikipedia highlights the warning against Article 356 as follows:

[Bhimrao Ambedkar, chairman of the Drafting Committee of the Constitution of India, referred to Article 356 as a dead letter of the Constitution. In the constituent assembly debate it was suggested that Article 356 is liable to be abused for political gains. Ambedkar replied, "I share the sentiments that such articles will never be called into operation and they would remain a dead letter. If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces. I hope the first thing he will do would be to issue a mere warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution. If that warning fails, the second thing for him to do will be to order an election allowing the people of the province to settle matters by themselves. It is only when these two remedies fail that he would resort to this article."]

There are many parallels of such abuse in Sri Lanka – including the ‘pardoning’ of Karuna Amman by the then President and his brother the current President of Sri Lanka. The pardoning happened for Administrative purposes and was an abuse of governance powers. This ‘pardon’ happened despite the massacre of Buddhists in 1987 in Ampara District where Karuna Amman declared his truth as per his customary law – that he killed thousands of Sri Lankan soldiers. Wikipedia presents that case as follows:

[The Aranthalawa massacre was the massacre of 33 Buddhist monks, most of them young novice monks, and four civilians by cadres of the rebel Liberation Tigers of Tamil Eelam organization (the LTTE, commonly known as the Tamil Tigers) on June 2, 1987, close to the village of Aranthalawa, in the Ampara District of Eastern Sri Lanka. The massacre is considered one of the most notorious and devastating atrocities committed by the LTTE during the history of the Sri Lankan Civil War, and continues to be commemorated 20 years on.

The Aranthalawa Massacre took place on June 2, 1987, when a bus carrying Buddhist monks and a few unarmed civilians was ambushed by 20 armed LTTE cadres near the village of Nuwaragalatenna, led by an LTTE leader named Reagan. They then ordered the driver of the bus, which was carrying the monks on a pilgrimage from their temple in Mahavapi to the Kelaniya Raja Maha Vihara, to drive into the nearby Aranthalawa jungle. After the bus stopped, the LTTE cadres went on a rampage, attacking the monks with guns and swords and also shooting some of them with machine guns.

Among the dead were 30 young novice monks and their mentor, the Chief Priest of the Vidyananda Maha Pirivena, Hegoda Sri Indrasara Thera. Four civilians who were traveling in the bus were also among the dead.

Three monks who escaped the massacre sustaining critical injuries continue to require medical assistance. Another monk was permanently disabled]

If  the Rajapaksa government had believed in the Buddhist community of Sri Lanka, more than the Army community  - it would have either not pardoned Karuna Amman or would have pardoned all involved in the armed war – as if they were part of themselves. Karuna was effectively used to claim victory over LTTE. That is in breach of laws of belief based governance. In this instance it was in serious breach of article 9 of the constitution which is a governance article for Buddhists which promotes loyalty through common culture.

As per Ceylon Today article ‘FR petition filed against LTTE members responsible for

Aranthalawa massacre’ the above karma has been awakened:

[A Fundamental Rights petition was filed in the Supreme Court today (30) requesting that a court order be issued directing the Acting IGP to take steps to file cases against LTTE members who assassinated 31 Buddhist monks in Aranthalawa, Ampara, in 1987.

The petition was filed by Ven Andaulpatha Buddhasara Thera, a Buddhist monk who survived the massacre.

Acting IGP C.D. Wickramaratne, State Intelligence Service Director Suresh Sallay and Attorney General Dappula de Livera have been named as respondents in the petition.

In the petition, the Thera said that many LTTE members responsible for the Aranthalawa massacre are still alive and that so far, the law has not been enforced against them.

The Thera further demanded a Rs 20 million compensation from the government for the fundamental rights violations caused by the incident.]

The Attorney General represents the President. If there is a case against the President for what happened in Ampara in 1987 when Mr J R Jayewardene was president. Like the land - Governance karma is carried by a governance position. Where one is active in one’s current environment – as per its rules – that karma remains passive. Hence the Tamil saying Vithiyai matiyaal velalaam/ Fate can be overridden by the intellect. Where one develops positive karma in current environment – it offsets the old negative karma. But it cannot be negated by Administrative credit.

Much has happened since the above, in terms of Governance power – starting with Indo-Sri Lanka Peace accord in July 1987 when a Navy officer  attacked Indian Prime Minister. That officer was pardoned by President Premadasa. Such pardons weaken the Governance powers of that structure. This is often manifested as frequent changes in government. If one is seeking good governance, invoking De Jure powers needs to be as a last resort.