Tuesday 24 March 2015

Gajalakshmi Paramasivam – 24 March  2015

2015 Presidential Elections – Interlocutory or Final?

How does majority power really work in the system of Truth? Are minorities able to drive this majority power? These are important questions not only in Sri Lankan governance but also in all nations addressing racial discrimination problems while upholding opportunities through diversity.

In 1976 Tamil Political Leadership declared Independence through the Vaddukoddai Resolution. In 1977 they became the Leading Opposition in Parliament – confirming the reality of Vaddukoddai Resolution which essentially meant that Tamils were Equal to Sinhalese. That was at that time in Sri Lanka. It will happen again and again in various forms – if Tamils continued to contribute to governance along the path of ‘Non-Violence’. Non-Violence to my mind is not the absence of physical damage caused by one to the other. It is about protecting the rights of both sides. To the extent Tamil rebels believed they were protecting the rights of  Tamils – they would have protected the rights of other communities in Sri Lanka.  Given that LTTE lacked governance experience in a multicultural environment – it would have been difficult for it to have the wisdom in democratic management. The outcomes produced by them confirm that they did go beyond their boundaries of belief and this naturally diminished the claim of Equal leadership status. The main reason was that the LTTE leadership was not independent of India. To deserve the title of ‘Independence’ one has to be self-sufficient at all times through the process – from beginning to the end.

These are experience based analyses. Through my contribution to the legal system in Jaffna – Sri Lanka – I learnt more about the way the Sri Lankan legal system addressed an issue through ‘Rights’ or through ‘Experience’:

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.”]
In the above mentioned Rajendran Chettiar case – Dr. Shirani Banadaranayake J quoted:

[After an examination of the aforementioned decisions, Sharvananda,J., (as he then was ) had held that for an ‘order’ to have the effect of a final judgment and to qualify to be a ‘judgment’ under section 754(5) of the Civil Procedure Code,

 ‘ 1. it must be an order finally disposing of the rights of the parties;
 2. the order cannot be treated to be a final order if the suit of action is still left a live suit or action for the purpose of determining the rights and liabilities of the parties in the ordinary way;
3. the finality of the order must be determined in relation to the suit;
4. the mere fact that a cardinal point in the suit has been decided or even a vital and important issue determined in the case, is not enough to make an order a final one.]

The more I think about this Order of Thought – the deeper I am able to go into governance issues of Sri Lanka. The above decision was by a Sinhalese Judge (who later became the Chief Justice) ; The matter was in relation to Trust Accounts of Sri Kathiravelayuthan Swami Kovil – a Hindu temple with Lord Muruga as the Presiding Deity; The mind the Sinhalese Chief Judge accessed are those of  Tamil Justice Sharvananda, English Judges  Lord Denning, M. R & Lord Alverstone CJ and finally in the Storer Duraisamy Yogendra  &  Balasubramaniam Thavabalan  Vs. Velupillai Tharmaratnam matter,  the mind using all of the above is Muslim Hon Justice Saleem Marsoof.

To the extent the above decisions are / were accepted by parties concerned they have duties in that multicultural system. None of them could legitimately  claim Sinhala Only or Tamil Only governance system without damaging their own investments in the legal system – the alternate governance system.

Using the above Order of thought  in Sri Lankan Governance – we need to ask:

(a)was the 2015 Presidential Election – Interlocutory Order or Final Judgment of the People?

(b)In concluding – which pathway are we to use?  Rights based approach or Effects/Experience  based approach?

(c )Is it purely Human or does it have  a strong influence of Natural Justice?

What is the difference between Rights based pathway and Experience based pathway?
To my mind, one who uses the Law – be it human law or  natural law – is a leader and therefore has the duty to take the Rights based approach.

 One who produces outcomes relevant to the matter has the responsibility  to use Experience based approach. As a member of the Tamil Community with minority status in Sri Lanka, I choose to use the Experience based pathway in this instance. Accordingly my interpretation of the following news report is based on my recent experience with the Hon Rajitha Senaratne who as  Minister for Health regularized the appointments of Health Workers in Northern Sri Lanka. Many in this group are direct victims of war.  

According to Reuters report :

[President Sirisena gave posts to 26 members of the SLFP, his own former party, in his coalition government, government spokesman Rajitha Senaratne told Reuters. They were given state and junior minister portfolios, boosting to 77 the number of members in the government.
"This is a national government and this is a (SLFP) party decision. We want to do all the reforms and then go to the elections," Senaratne said.
Dayan Jayatilake, a political scientist, author and former Sri Lankan diplomat who strongly supports Rajapaksa, said the move would slow down the decision-making process.
"It will satisfy no one because UNP will feel it is being crowded out by the integration of the SLFP members into the cabinet," he said.]

 Mr. Senaratne has confirmed that the Presidential Election in 2015 was indeed Interlocutory in terms of Governance.

On the face of the above statement one could conclude that Dr. Dayan Jayatilleka, is stating that it is final judgment and is therefore challenging  the current government to deliver as per  election promises. Failure of such delivery would be advantageous to former President Mahinda Rajapaksa if he contested in the next  Parliamentary elections.   

The question is whether we need to slow down the decision-making process at political level to bring back to life democracy in politics? As per my experience – yes. The experience with Health Ministry in 2009 when Mr. Rajapaksa was President – needed me to remain silent when a senior health official said to me ‘Don’t go and ask for Separate State’.  I consider myself a Sri Lankan and would have expected a fellow Sri Lankan in leadership position to recognize me as a Sri Lankan. One who failed to do so – was not Sri Lankan. In this instance this senior officer to my mind, was a Sinhalese-Only activist. I prayed to Lord Buddha and believe that the approval to visit the camps happened through my prayers which invoked the duty of the Health Official as per MY need.

Earlier this year – my experience within the same Ministry of Health was more close to my true status. The senior officer (a different person) was humble and ultimately delivered – effectively to make amends. To me, that experience happened at the higher level of management.  

But it takes time for this experience to be felt at the lower levels.

The Common Election Promise by President Sirisena is that he was the Common Opposition candidate. The need in Sri Lanka is thus recognized to be deeper than Tamil-Sinhalese ethnic issue and its Sinhalese parallel of UNP-SLFP party issue. When we are habitually subjective despite knowing that someone else is getting hurt by the exercise of subjective powers and we do not address the problem it becomes a wrong. Wrong effects confirm wrong causes. Where decisions are made in Administration using majority rule – the make up of the group needs to be Equally distributed. Where this is not possible – the leader has the responsibility to use existing policy / law and not majority opinion. Such approach would result in or confirm good governance.

Now that decisions have been made without this rule being adhered to – the outcomes of leaders have become Public. The current need for Sri Lanka  is to become independent of Subjective powers when producing outcomes visible to the Global Community. Once we become global the outcomes we produce must stand on their own rights.

I consider myself to be a global citizen. Hence my complete acceptance of the Order of thought in the above legal decision followed by application of these principles and pathways in other areas of my current life. But those who are desiring more fights – so that they could show their cleverness – are likely to oppose this move towards Common Opposition. This move in fact restores the Tamil Community’s earned status as an Equal Opposition. In other words the Political confirmation through the 1977 Election outcomes is now confirmed in real terms without direct participation of  Tamil Political groups.

In his Public Response to fellow Australian senior Mr. HLD Mahindapala, a young Tamil – Mr. Vallipuram Kanthaiya states:

[The person who benefited the most and was worst affected by the destruction of the LTTE is none other than our former president Mahinda Rajapaksa. He benefitted in the 2010 election because people considered him as the one who defeated the LTTE and in 2015 he lost because people forgot the LTTE, and considered him as the one who built the Hambantota Harbour and the Mattale Airport.
Perhaps Mahinda Rajapaksa could have won the 2015 presidential election if he had put up mega size cutouts of Prabhakaran (not Mr. Prabhakaran) with a caption below, “Do you still remember this person?” Unfortunately, Mr. Rajapaksa put up his own mega cutouts with his typical smile which everyone hated, and he lost the presidential election. So the theory is this. We need the LTTE, Prabhakaran and the Tamil Diaspora to entertain people.]

By the two major political parties losing their particular identity – they have facilitated the Tamil Opposition to be visible and not forgotten in the average Sinhalese mind. This is the parallel of having LTTE Leader Prabhakaran’s cutouts as suggested above. This would happen again and again when the Common Tamil is more genuine in self-governance than the Common Sinhalese.  A genuine self-governing citizen would influence the balance of Equality in a multicultural society – so that the outcomes the nation produces are independently usable by the Global Community in which membership is only through the independent mind.  

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