Friday 19 June 2015

Gajalakshmi Paramasivam – 19 June  2015

Terrorism, Racism & Rape

There is Truth and there are Legal Outcomes. Not all legal outcomes uphold Truth. But within those outcomes we would be able to find the Truth we need if we sought through our own Truth. If  Politicians introduce legislation on the basis of their own belief – such law would be healthy for the People of their ‘home-area’. If on the other hand,  a law is introduced as per political desires – such law would become a burden on society.

As per news reports in relation to Tamil School Student who was raped and murdered on 13 May 2015 in Northern Sri Lanka, the suspects would be tried under Prevention of Terrorism Act. (PTA).  As per my understanding this legislation was introduced as part of the measure to punish Tamil Groups waging armed war against the Sri Lankan Government. Given that there are rumors of Political influence contributing  to the above rape and murder crime, one could understand the reason for using  PTA – especially because President Sirisena promised those affected that this would be a ‘special trial’.  But then should this not also be the case with Political influence in Southern Provinces? Would any Politician also be tried under PTA for politically influenced crimes? A law should not be only for particular classes of society.

As per Ceylon Today “Three lawyers had arrived from Colombo to Kayts when the case was taken up. However, it was not clear whether the lawyers from Colombo were there on behalf of the suspects or to observe the magisterial inquiry into Vithya's murder.
Senior Attorney at Law K.V.Thavarasa who also hails from the area of the crime, Pungudutivu, appeared on behalf of Vithya's family. But lawyers from Kayts and Jaffna have refused to appear for the ten suspects in the Vithya rape and murder case

What does the refusal by Tamil lawyers from Kayts and Jaffna tell us?  To my mind, the refusal confirms that the Tamil lawyers have abandoned Justice to politicians. One popular President’s Counsel  in  Northern Sri Lanka to whom I was taken by the auto-rickshaw driver when I needed documents from my opponents in relation to a Testamentary case said to me that the opposition were ‘right’ but that I could still oppose the Petitioners in court so that the ‘i’s were dotted and the ‘t’s were crossed!  In some ways that lady seems to have worked out that Due Process was important to me. But then when I actively participated in the Court Process I learnt that that President’s Counsel was wrong in her ‘judgment’. I learnt more and more that the system of Natural Justice has a way of  establishing our Truth through the Court system also – provided we had practice the relevant law (in this instance Thesawalamai Law) – consciously or otherwise. The Courts may never uphold that Truth due to deficiencies in the Judges and/or the law itself.  But the genuine litigant who brought to Court her/his Truth – will always identify with the right Judgment in the proceedings. It is this judgment that would empower society from person to person. The court judgment when it upholds the Truth – will be part of the true outcome and not whole outcome. The picture is completed only when it is accepted by at least one genuine member of common society.

If Jaffna lawyers sought for the proceedings and the judgment to be raised to the level of society taken as a whole – they would represent the suspects even on pro bono basis. The Legal Aid Commission – which has branch in Northern Sri Lanka also - states under selection criteria :

Justice Test
The justice test would be used in providing legal aid when the ambit of the litigation transcends adjudication of personal disputes to affect a group or a wider class of persons.’

It is obvious that the above rape and murder case qualifies under the above criterion and it is surprising that Legal Aid on behalf of the suspects was not present at the inquiry on 15 June. Without such assistance – the suspects are entitled to be tried like any other citizen committing rape and/or murder and not under PTA – unless law enforcement authorities produce evidence of Terrorism in these Tamils.

In addition, Senior Attorney at Law K.V.Thavarasa who is reported to be appearing for the victim’s family is known to be part of the leadership of  leading Political party  Ilankai Tamil Arasu Kachchi. Mr. Thavarasa’s home area  is reported to be Pungudutheevu area where the tragedy happened.

On the other hand, academic – Dr. V.T. Tamilmaran – Dean of Law – University of Colombo – who also claims to hail from the same area – claims that Politicians were tarnishing his image.

Tamil lawyers who are ready to participate in political discussions do not seem to be forthcoming to directly participate and provide a level platform on which the suspects are tried. That level platform is needed for Administration of Justice. Without that – any judgment is Political and has the effect of  being in breach of the Doctrine of Separation of Powers – an accusation made against former President of Sri Lanka when his government dismissed the then Chief Justice.

It is understandable that the victim’s family would seek the severest of punishments. But who punishes depends on the earned authority of the establishment. The comprehension of the terms of punishment would need to be taken as being  that of a common  citizen of that area. That’s when the Court becomes a facility of the citizen genuinely seeking punishment. If the law does not provide enough as per the belief of that victim – then I believe that  that victim would certainly be heard by the Lord.  If on the other hand – the perpetrators are punished at a level that  cannot be related to, by them – it becomes a group issue and not that of an individual.

A parallel example  is the Sydney gang rapes in  2000 -  by a group of about fourteen Muslim Australians of Lebanese origin.  The victims were White Australian women and girls as young as fourteen. [The nine men convicted of the gang rapes were sentenced to a total of more than 240 years in jail. According to court transcripts Judge Michael Finnane described the rapes as events that "you hear about or read about only in the context of wartime atrocities".] Wikipedia.

At the time the matter was on our National TV – I could not quite identify with the ‘group’ influence.

Judge Michael Finnane was a keynote speaker at the ‘Beyond Conflict’ workshop organized by the Sri Lanka Reconciliation Forum Sydney in August 2013. Having interacted directly with Judge Michael Finnane I believe that the Judge appreciated that this was not an ‘individual’ issue but was strongly influenced by ‘group’ power on the basis of Race. Australian Courts did not take note that I was listed  ‘Sri Lankan’ by Australian Police and that I considered that to be Racially Discriminatory – due to that ‘group power’. But as per my Truth – I concluded after my experience about two years after these matters were heard in court – that  these ladies who were specifically called ‘Australian’ by the rapists – were victims  also of Race Discrimination. I  judged to recognize their pain when I had similar experience and ‘judged’ that it was due to race.

This internal balance is needed so we do not get biased when connecting to others’ experience. If I did not consider the Police calling me Sri Lankan to be racially discriminatory – I would not have identified with the verdict by Judge Michael Finnane that they were racially motivated.

Racial discrimination could seem right as per someone who is strongly ethnic minded – be they white or black. In fact many migrants of Sri Lankan origin would be guilty of racial discrimination when they are  more attentive to a White Australian than to a Black Australian (including of Sri Lankan origin) making an identical statement. The difference is ‘belief’. Belief connects us along the same pathway – in the subjective system - to each other’s mind. In the absence of belief – position elevation or demotion when taken to exercise authority without objective evidence – to reward or to punish - is unjust discrimination.

Given all these complications it is important that the Sri Lankan rape and murder case which indicates strong  political influence must be lifted to the higher level so that both sides have equal footing in terms of Administration of Justice.

Where there is no political influence, the punishment must be on Equal footing as punishment to any other citizen in Sri Lanka. If the matter is heard through PTA then Good Governance demands that the suspects are represented by leading Attorneys at law – preferably one who is ITAK’s Political opposition.    The President has the responsibility to facilitate this.

If these perpetrators are tried and found guilty under PTA – then Tamils have the responsibility to seek that  LTTE also be tried for war-crimes to the extent we seek the  Sri Lankan Government to be tried for war crimes. Is this karma coming back to Tamils m- for blaming it all on Sinhalese ONLY?

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