Gajalakshmi Paramasivam

19 January   2021

 

 

 

EQUAL OPPOSITION AT UNHRC

 

In yesterday’s posting headed ‘CONTEMPT OF TRUTH’ , I highlighted the importance of Equality of Truth, as follows:

 

[The Public are taken as being Equal to the Judiciary as law is Equal to fact, in terms of importance]

 

The communication from Canada’s Tamil Rights Group (TRG) states:

 

[Tamil Rights Group (TRG) welcomes the historic joint statement released by elected representatives of opposition Tamil parties, leaders of Tamil civil society, and Tamil survivors calling upon member states of the United Nations Human Rights Council (UNHRC) to take decisive action against Sri Lanka at the upcoming 46th session. We also call upon the Core Group on Sri Lanka at the UNHRC – most notably Canada, Germany, and the United Kingdom – to pay heed to this unified appeal and ensure that a new Resolution is passed next month that will accelerate the pace of achieving accountability and justice for the Tamils of Lanka……..

The statement is also a milestone because it is the very first instance when all opposition Tamil parties have formally requested the UNHRC to enact a new Resolution that charges the Sri Lankan state with genocide, crimes against humanity and war crimes against the Tamils of Lanka and to ensure accountability and transitional justice through other realistic means, including referral to the International Criminal Court and the establishment of an International Independent Investigatory Mechanism (IIIM) amongst other measures. This landmark recognition of genocide by all opposition Tamil parties is especially important as Tamil survivors and civil society organisations have – at the cost to their own security and livelihoods – long agitated for it since the structural genocide of the Tamil people is what caused the war and is not the result of it. Indeed, the genocide continues unabated since the end of the war, with the latest act of Tamil erasure being the demolishing of the Mullivaikal memorial shrine at the University of Jaffna last week.]

In a court of law, lay participants are backbenchers. Once, in a Colombo Court our own senior counsel said to the instructing solicitor who seated me in the row behind theirs, to send me to the backbench. The instructing solicitor’s seating was based on the truth he knew – that I was an active participant in the process. But the senior counsel failed to recognize my worth. He thus demoted the status of ‘error of fact’ as the basis of Appeal to the last row.  When error of  fact is stronger than the error of law, law and fact have Equal status. In Australia, lay litigants  are facilitated to take their places in front row. But not witnesses or the parties who brought the matter to Court.

When the People have no participatory status in a court – the law becomes a myth. Politicians like Mr Ranjan Ramanayake who take ‘senior’ positions above judges are actually the parallels of judges who look down upon the lay participants who gave birth to the matter in court.  My realisation happened through my case in which I made the discovery that the primary level judge had ignored the documentary evidence that our opposition had produced against himself. This was highlighted as follows by the Appeal Court judge the honourable N. Bandula Karunarathna:

[Thereafter Piyadasa filed an action 5812/ZL, against those 2 persons, namely Fabian Mitchell and Periyasamy in the D.C. Cololmbo. This case went ex-parte against both of them and Piyadasa had used this ex-parte Judgment to confirm his Prescriptive title for the next transaction. Periyasamy's address is given as No. 163/7, Nawala Road, Narahenpita which is the address of the same disputed property in the present action. If Periyasamy was residing in that same property, then Piyadasa would have definitely been residing in some other place. Appeal brief confirms that, Piyadasa has used his residential address as No.28, Nawala Road, Colombo 5, for the DC case No. 5812/ZL. This clearly proves that even at that time he was not living on the disputed land.]

 

At the time I made the above discovery I had myself prepared the submissions – the way I knew – largely as per my experience in Australian Courts. Then when I sat down on at my regular ‘meditation’ seat – my eyes went to the papers in relation to case 5812/ZL. I asked my husband to read the name against 163/7, Nawala Road, Narahenpita and he said Periyasamy. I had to ask my husband because I cannot read Sinhalese.

The Prescription Ordinance, like Thesawalamai law is was given birth during Colonial Rule. Those who respect the Administrative order in those minds – which has become a heritage will find the truth that that pathway leads to. The evidence that Piyadasa who occupied our property left behind is our example of “Every contact leaves a trace” principle in Forensic Science. One who ‘includes through belief’ is supported by Universal power – essential in democracy.

The claim referred to above, is confirmed by the Island report headed ‘TNA, allies call for outfit like IIIM in Syria to probe SL’

All three leaders carry the status of being law experts. Their statement includes the following:

[Leaders across the political spectrum in Sri Lanka including from both the major political parties have categorically and without exception stated that they will protect the Sri Lankan armed forces from prosecutions. It is now time for Member States to acknowledge that there is no scope for a domestic process that can genuinely deal with accountability in Sri Lanka.]

The evidence produced by the above leaders confirms that they seek to win so they could ‘tell’ the Sri Lankan government.

The destruction of the Mullivaikal monument at University of Jaffna happening at this time is no coincidence. The Mullivaikkal Muttram in Thanjavur District gives a different message to the one that was at University of Jaffna . The difference confirms the diversity of the expressions of belief by the two groups. The monument at the University of Jaffna confirmed the respect for militant leadership. The one in India confirms the pain of civilian victims who for whatever reason could not distance themselves from the two armies.

The evidence leads to the above FACT that the Ultimate victims were the civilians. If the perpetrators are taken as Armed Forces – they – who is the head of the Tamil soldiers? Prabhakaran?

As an independent community – Tamil leaders have to first find their own judgment . Out of the three leaders – Mr Ponnambalam would represent the LTTE, Mr Sampathan the civilian victims and Mr Wigneswaran – the Judge. ‘The reasons for judgment’ for judgment need to be published. If this is not satisfactory to either side – then and only then could they raise it to higher wider level.  The Indian judgement has been written in the form of Mullivaikkal Muttram which is the parallel of the 13^th Amendment which is disregarded by supporters of militants. The truth depicted by Mullivaikkal Muttram is elimination of militant leadership and recognition of the pain of victims. This truth was written in Chola Territory that carried the Tiger Flag which the LTTE seems to have inherited.

The seating in that Tamil Court would be – Lawyers on one side and Civilian sharing evidence – including through affidavits – on the other side. The UNHRC is NOT needed for this process. It is the Apex court of Appeal. At each stage of Appeal – there is no room for new evidence to be heard.

Sovereignty comes with its own solutions. The needs of Canada, Germany, and the United Kingdom cannot be the same as the needs of Sri Lankan Tamils. Raising it through Tamils living in those countries – is frivolous and damages the very sovereignty that we claim to have developed.

By seeking the involvement of the  International Independent Investigatory Mechanism (IIIM) – Tamil leadership is confirming that it is seeking to rule by majority evidence. This is valid  only on Belief basis and not on top down intellectual basis. Since these supporters are themselves separatists the Sri Lankan government has the option of undertaking an inquiry only for its side but neither has any power to bring about a common solution.