Thursday 19 March 2015

Gajalakshmi Paramasivam – 19 March  2015

Australian Authorities Seizing Citizen's Property to Obstruct the path of Experience

Who Owns the National Anthem?

Yesterday, Mr. Harry de Sayrah – a leading member of the Sri Lankan Diaspora sent me an article entitled  ‘Towards a Lankan Nation?’ by Ms Tisaranee Gunasekara. This morning I received the news report from a Professional Senior that ‘President Sirisena Allows Singing of Lankan National Anthem in Tamil

The former had the following opening quote :
"The history or the future of Sri Lanka does not belong to any one community."
 Ranasinghe Premadasa - (Speech on 11.12.1990)

President Premadasa’s above expression is born of Experience because he was not distracted by unpracticed theory. These are like case law decisions. To me when a news report comes through a person/group  I have invested in – that is also like case law – for that comes with the mind that brings the report. During my preparation to represent myself in the High Court of Jaffna – I came across examples of how this separation between theory and practice towards the same goal was necessary in making legal decisions. In this regard I have stated as follows in my application for leave to appeal:

1.     [The Questions Involved : . Whether the matter was heard with the purpose of upholding the lawful Rights of the parties concerned or whether the Judgment was asked for and given on the basis of benefits with little discussion on Rights. In other words,  whether the Proceedings & Judgment took a  Cause based approach or whether they were more Effects based – distinguished as follows by Hon Justice Saleem Marsoof, P.C., J.  in Storer Duraisamy Yogendra  &  Balasubramaniam Thavabalan  Vs. Velupillai Tharmaratnam:

[The decision of five judges of this Court in the Rajendran Chettiar case is not only binding on this Bench as it is presently constituted, but also reflects the practice of Court both in England as well as in Sri Lanka. As Lord Denning, M. R. observed in Salter Rex and Co. v. Ghosh [1971] 2 All ER 865 at page 866 – “Lord Alverstone CJ was right in logic but Lord Esher MR was right in experience. Lord Esher MR‟s test has always been applied in practice.”]

2.     Errors in  Law -  If the Proceedings  were driven by Cause of the action – then the following approach seems the better fit: “It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not it is then, in my opinion, an interlocutory order.”   - Lord Alverstone, C.J cited  by Hon Justice Saleem Marsoof, P.C., J.  in Storer Duraisamy Yogendra  &  Balasubramaniam Thavabalan  Vs. Velupillai Tharmaratnam

3.    Errors  in  Fact
If the Proceedings  were driven by Effects of the action – then the following approach seems the better fit:

“The question must depend on what would be the result of the decision of the Divisional Court, assuming it to be given in favour of either of the parties. If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in  dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory. ” Lord Esher, M.R.  cited  by Hon Justice Saleem Marsoof, P.C., J.  in Storer Duraisamy Yogendra  &  Balasubramaniam Thavabalan  Vs. Velupillai Tharmaratnam

The singing of the National Anthem also needs to be evaluated on appropriate basis as per the users – singers and listeners. On the side of Tamils it has been largely Experience based. As per the article forwarded -  President Sirisena ‘ will thus be lifting an unofficial ban existing since 2010, when President Mahinda Rajapaksa let it be known that government will frown’. As one who is part of the Jaffna Tamil Community -  the  singing of the National Anthem in Tamil did not cease after the above ban. Like voting in National elections - it has been a Natural practice of one’s participation at National level. This therefore needs to be separated from the claim of  Tamil Eelam only – which is a Rights based claim. The two respond to different sections of  the Nation and they lead users along different pathways to the same goal.

In a Court of Law – one could be driven by Law or by Facts. Where the litigants – directly or through their Attorneys at law present the case through their Experience – the Court has the Responsibility to use the path of Experience and use the law only to derive authority to make judgment through that particular path. Under such circumstances – the Court is a FACILITY through which experiences are made common to the Public. Here in Australia – my experience based sharing through the Court system using Racial Discrimination Act 1975 – was received through the theory of  Legal Administration. Majority  Judgements delivered were dismissals as ‘lacking in substance’ – meaning lacking in evidence that whatever happened was due to race. But I learnt the Truth about our system – that they did not know the difference between ‘substance’ and ‘evidence’. Where damage is established and it could not be connected to merit base – the victim of that damage has the right to be heard on the basis of belief and  evidence given by that victim on that basis is valid evidence until proven otherwise. The Australian Courts erred and yet I did not lose the value of my experience. My wisdom in law became stronger as demonstrated through my response to a law expert who questioned me when I claimed that Tamil Protestors in London during the recent visit by the Sri Lankan President did not represent Tamils resident in Sri Lanka.

Law Expert: [I really do not understand your 'Locus Standi' in this matter if the British citizen does not have one.]

Gaja: Mine is as an Australian practicing global principles where wider society is affected as well as Sri Lankan who feels Sri Lankan and therefore is a self-governance facility usually available to the needy in my environment.  As a resident of Vaddukoddai when in Sri Lanka – I have natural rights. They are usually expressed through the grassroots folks who have the primary rights of expression in Sri Lanka. At the higher level  - I do exercise my rights towards improvement of policy.  Thesawalamai covers me even though I am not legally a citizen of Sri Lanka any more. That is the beauty of Thesawalamai. I discovered this because I care/d deeply.

The ban on singing of National anthem in Tamil is defeated due to the actual experience of Tamil people. In fact – the Sri Lankan National anthem could be very validly sung in English – given that we the practitioners of English law and continue to use the minds of the English to formulate our Orders of Thought. The English order of thought is part of our genes and higher level practitioners of Sri Lankan law – do need this path to be clear of any prejudices. Likewise those using  Thesawalamai Law – need to be clear of  Common Law practices of Equal Distribution of wealth.

Whether it be the English Law or  Thesawalamai Law – where one party to a dispute has actually demonstrated practice of the law – the two pathways would merge at an early stage. Where there is no such practitioner – it is largely rights based decision the value of which may never reach the litigants and the communities they are part of.  When Courts are used for such purpose – they would result in wider gap between the Judiciary and the Public resulting in unjust punishments and rewards and unlawful dismissals which often become the roots of rebellion.

Discussions on Sinhala Nation and Tamil Nation are largely Rights based.  They need to be not indiscriminately mixed with Experience pathway.  According to Colombo Gazette article ‘Sri Lanka to review Diaspora ban’ :

[Foreign Minister Mangala Samaraweera told Parliament today that the previous government used the UN Regulation No. 1 of 2012 under UN Security Council resolution 1373 to list 424 individuals and 16 entities under Extraordinary Gazette1854/41 of 21 March 2014 in the run up to the Presidential election.
“This was done to build up the hysteria about the LTTE regrouping. They banned several Sri Lankan Tamil diaspora groups under these provisions for their alleged links to the LTTE. However, most of the organisations listed may have merely been vocal proponents of Tamil rights. There was hardly any tangible evidence to link them to the LTTE. Some of the individuals listed had even been dead for some time,” the Minister said.]

Like the ban on singing the National Anthem in Tamil – the above is also experience based for a divided section of Sri Lankan society. It does not have the validity of Common Sri Lanka. To be valid as Common Principle – they need to have the provision of the parallel of Thesawalamai Law – the Kandyan Law in this instance. That would then be applicable only to the areas covered by Kandyan Law and NOT the whole of Sri Lanka.  Likewise any claim of Genocide by Tamils to be valid - needs the endorsement of  Thesawalamai or  Sri Lankan Law  to have the blessings of our educated and wise ancestors. Going direct to the UN is a confession that our laws are not wide enough in their application. To the extent we are traditional – we would find the parallels of global laws in our own local laws. We would if we are truly National. All we need to do then is to give form to them through our representatives in National Parliament.

Where the laws known to us do not uphold our claim and our claim is genuine – they go into God’s are of Natural Justice – in which area  none of us has direct control over outcomes. If we ‘observe’ we would identify with the outcomes as common – to which we also contributed. That is the Universal Experience.  Without that area covered by our Truth – a decision using global laws would be global in theory only.

English Law and Roman Dutch Law have become global through practice and they do not belong to the English, Romans/Italians or the Dutch only. They belong to every genuine practitioner of that ‘Order of thought’. The wider the distance between the practitioner and the original discoverer of the Law / Principle – the more global it is. The older the law/principle practiced by a local – the more Universal the outcome would be. But one must Believe in ancestors and tradition to have this share in heritage which is beyond birth rights as determined by merit alone.

We all own the National Anthem of Sri Lanka to the extent we believe we are Sri Lankans. Sinhala Only and Tamil Only groups need to develop their own cultural anthems and should be punished if they  block the path of Sri Lankan Nationalism. In social terms – those who so block are not nationalists at all. 

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