Gajalakshmi Paramasivam

06 July 2021

 

Inquisitorial system for Buddhists & Adversarial for Non-Buddhists

One can become part of a team or separate from a team to uphold the rule of law. In the case of a Politician this becomes difficult due to conflicting roles. A politician is a law-maker. Even in Opposition, a politician has the duty to contribute to the law as per her/his belief.  Then that law’s kinetic power gets diluted and this would prevent excesses and therefore abuse of power. As per the ethics of Parliament as an institution, one needs to Believe to vote for or against a proposed law. Both are right but like in religion, the pathways are separated. Where both are of the same pathway, the legitimate outcome is only one and hence ‘ right or wrong’ is marked. As per my understanding, former is the adversarial system and latter is the inquisitorial system.

Likewise, Judiciary and the Parliament – where both would be right but to the extent they are belief based, the pathways would / need to be separated. Where the pathway is One – say Buddhism - the outcome would be right or wrong, within the Buddhist law .  In other words, where there are different forms of belief many outcomes would be produced on the way and that of majority is taken as the leading outcome. Hence Buddhism foremost article (9) in the Sri Lankan Constitution.

Non-Buddhist laws – including secular laws naturally become the laws of minorities. They are also natural opposition of Buddhist laws in Democracy. Those who are classified as Buddhists are custodians of Buddhist laws and their word is taken as right until proven otherwise.

The responsibility to keep the balance in a belief-based system is that of the Universal system of truth. When we are outside belief and we have to judge, we need to consciously use logic that both sides would understand as per the common theory / law. Hence speakers  in Parliament are protected from litigation, on the basis that they express their belief. When Parliamentarians speak to get ‘rights’ and to avoid ‘wrongs’ – they come into the Inquisitorial system that would make them foreigners in a democratic system driven belief based votes. When we recognize one religion only – for example Saudi Arabia where Islamic law is used by the legal system we oppose the system of democracy.

In Sri Lanka – due to article 9 we have to be one or the other in a court of law.

In his Daily FT article ‘Inquisitorial versus adversarial systems of litigation’  - Dr. A.C. Visvalingam – President Citizens’ Movement for Good Governance (CIMOGG) stated as follows:

[The Citizens’ Movement for Good Governance (CIMOGG) went into this subject in non-technical detail in an article titled ‘Towards a more people-friendly system of justice’ that appeared in the Island on 4 December 2010 and may still be accessed at www.cimogg-srilanka.org. 

We said then that it was time to get Parliament, the Judiciary and the legal fraternity to address their minds to take steps that would give a measure of relief from the tortures to which Sri Lankan litigants are interminably subjected. We said that Sri Lanka should learn from countries that practise more efficient ways of speeding up litigation. 

It was recalled that the late Felix Dias Bandaranaike got several laws passed and implemented in or about 1973 to help accelerate litigation. However, the more inefficient and selfish of our lawyers, who we fear greatly outnumber their betters, got this progressive legislation repealed after J.R. Jayewardene came into power in the late 1970s. ]

The above as published on 18 May 2018. In about five months after the above manifestation, we had the Constitutional crisis – through a ‘friendly’ President – doing favours to his former boss related to him through Buddhism.

The reason – as I see it - was indicated by Professor Arjun Guneratne as follows, on 22 January 2013:

[The present Sri Lankan constitution, amended 18 times, 16 times in its first decade, is a curious hybrid of the British parliamentary system and the French “imperial” presidency. The Sri Lankan political scientist A.J. Wilson called it “the Gaullist system in Asia”, and noted that behind its façade of democratic constitutional government laid political authoritarianism]

The French civil legal system is Inquisitorial which requires more power at the top. This in turn relies on ‘confidentiality’ being maintained along the way with only the President taking credit for final outcomes. The system in Sri Lanka - prior to 1978 Constitution was Parliamentary system – where the citizen is entitled to produce outcomes as per her/his completed experience – at electorate level. The boundaries of an electorate are the boundaries which give shape to one’s belief. These are covered by article 14 of the Constitution which promotes Transparency.

Like in the ethnic armed war which was silenced in 2009 – exactly 9 years prior to the above manifestation by a Tamil intellectual - Dr. A.C. Visvalingam – only one king is allowed to be active in autocracy. Hence the Presidency killed the foreign king LTTE. But the true parts – though made silent – got into Muslim bodies and caused the 2019 Easter Bombings. The true parts are the other side of our benefits that become sins when we do not do our duty as promised.

Given that the LTTE leader was Christian when he died and the affluent Tamil refugee in Christian nations, they – the Tamil sins - mutated to be ‘told’ by ISIS who were eliminating Christians. Majority in the LTTE follow the leader due to the ‘gap’ in power between the top and bottom. When LTTE bodies were silenced, its spirit went into the most suitable body – the Muslim armed  rebel. The positive ones went into empower current generation Tamils who genuinely seek self-governance.

Most Muslim rulers use the Inquisitorial system. The king of Muslim armed rebels is ISIS. The king of Tamil armed rebels is LTTE. Tamil Diaspora that funded the LTTE is was anti-democratic.  

Now we have a problem in Sri Lanka where we have to use the Judiciary to decide in the case of a Muslim Parliamentarian.

As per today’s Daily News report – ‘FR filed by Bathiudeen brothers: Justice Samayawardena declines to hear’:

[Supreme Court Judge Mahinda Samayawardena yesterday recused himself from hearing two Fundamental Rights petitions filed by former Minister Rishad Bathiudeen and his brother Riyaj Bathiudeen challenging their arrest and detention in connection with the Easter Sunday Terror Attacks.

Justice Samayawardena, who was a member of yesterday’s Bench, declined to hear these petitions citing a personal reason.

Justice Samayawardena is the fourth Supreme Court Judge to refrain from hearing these two petitions. Justice Yasantha Kodagoda, Justice A.H.M.D. Nawaz and Justice Janak de Silva had earlier recused themselves from hearing these petitions.

Taking into consideration the facts Supreme Court three-judge-bench comprising Justice Murdu Fernando, Justice Achala Wengappuli and Justice Mahinda Samayawardena fixed the petitions for support on July 8.

The Bathiudeen brothers had filed Fundamental Rights petitions in Supreme Court seeking an interim order to release them forthwith from the custody of the Criminal Investigations Department (CID). They had been arrested and detained in connection with the Easter Sunday Terror Attacks.]

 

The morning reported as follows:

[Rushdie Habeeb, Attorney-at-Law representing Bathiudeen told The Morning that this many recusals of Judges from hearing a case in a Supreme case setup is very unexpected

“Justice Janak De Silva was the first to recuse, stating that he had given recommendations to the Presidential Commission of Inquiry (PCoI) tasked with looking into the Easter Attacks. Justice Yasantha Kodagoda cited Bathiudeen being his neighbour as the reason for his recusal. Justice A.H.M.D Nawaz meanwhile did not give any reasons for recusal. Today, Justice Mahinda Samayawardhana cited personal reasons along with the fact that he had heard another case relating to Bathiudeen’s brother as the reason for his recusal,” Habeeb stated.]

 

Two of the above Justice Janak De Silva and Justice A.H.M.D Nawaz heard my appeal in a land matter where prescriptive title claimed by a Buddhist was challenged by me. I was happy to note that Justice A.H.M.D Nawaz did recuse himself from the Bathiudeen case.  The reason is in the following:

[Anil Silva PC with Faisz Musthapha PC, instructed by senior counsel Gowry Shangary Thavarasha appeared for the petitioner.]

Faisz Musthapha PC appeared for my Opposition.  I highlighted that the Mr Piyadasa who claimed prescriptive rights, produced in the primary court,  evidence that one Periyasamy was residing at the premises – included as follows by his honour Justice 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 definetely 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.]

The above came to my attention after I went into virtual reality mode – as if I were Mr Piyadasa who was a Buddhist. The rest happened as per the Universal system of belief. This outcome did not happen when Justice A.H.M.D Nawaz heard the matter. In fact after I filed my submission regarding the above – Mr Faisz Musthapha PC made an offer – through my lawyer - to settle out of court but I declined. During the process the matter was adjourned many times because Mr Musthapha could not make it to Courts and Justice Nawaz allowed the adjournments – with little demonstrated regard for my pain in attending religiously as if I were a lay litigant. Those who follow the oldest due processes are supported by belief based legal practices that represent our elders. Then any ruling against followers is also against those elders.

Strictly speaking, Mr Rishad Bathiudeen, ought to have represented himself and learnt through experience the gap between the secular law and his belief in his electorate . Then he would have confirmed that he was entitled to self-governance through Muslim law at the community level.

Even now – his Affidavit needs to be filed and if true – that power would work the system – as it did for me. In self-governance – our certification of ourselves needs to matter more to us than certifications by others.