Thursday 11 February 2016

Gajalakshmi Paramasivam – 11 February   2016

Are These Judges Internal or Foreign?
President Maithripala Sirisena and the government would never accept foreign judges in the proposed court to be established in accordance with Oct. 1, 2015 Geneva Resolution to inquire into accountability issues during the final phase of the Vanni offensive, Provincial Councils and Local Government Minister Faizer Musthapha, PC, said yesterday.’ Former President accused of raising Geneva bogey – The Island Newspaper

If that is the ruling principle during this Government – then the Dharmic (Righteous) move is to have a law that no Sri Lankan Judge could hold office in another country’s judiciary. Sri Lanka, which through its Constitution is committed to Buddhist pathway has the responsibility to ensure that the system of Karma is upheld in key aspects of  Governance. If the President expresses an opinion that he does not think it would be appropriate  to include foreign judges to make judicial decisions in Sri Lanka – then that is a political  opinion with no justice implications. To make a statement that the government would never accept foreign judges – is a projection of definite ruling. If this is undertaken then the balance needs to be maintained to rule out all Sri Lankans from holding parallel positions in other countries. Maintaining this balance of Equality is most important for us to have stable government.

When the culture is different - mind order is different; When the mind order is different there needs to be separation of powers so one does not interfere with another’s work pathway and system of faith. Minister Musthapha who continues to carry the qualification PC (President’s Counsel)  in breach of the Doctrine of Separation of Powers, is reported to have stated:

[Recalling the circumstances under which the then Chief Justice Dr. Shirani Bandaranayake had been impeached at the behest of President Rajapaksa, Minister Musthapha said that such actions caused rapid deterioration of judiciary. Regretting that he, too, had backed the impeachment of the Chief Justice, the minister said that remedial measures taken since the last presidential polls had helped improve the situation gradually.]

The change  at least at the level of this minister is more in style than in substance. In democracy – one must already confirm practice of a principle before proposing it to others. Without this mental separation between cultures – the minister is letting politics take over Administration. The dismissal of former chief justice will continue to happen in one form or the other when the status of such minds is elevated without connection to the root.

One is pushed to conclude that to this government – it is alright for legal qualifications earned in the past to be carried forward as is – by politicians but our heritage from other nationals is to be ‘forgotten’ now that the rulers are local only.  When we carry the value with faith as common owners – it is of heritage value. Such value is part of the structure but does not become active part of current merit. Separation of Powers helps preserve that heritage for the environment in which it was developed. This environment could be a discipline, country, province or even family with mother and father being Equal and Diverse.

Sri Lanka needs both – local investigation by the Government which was an active participant in the conflict. Ideally the judges at this level would be purely local with no foreign mind at all. That would then educate the Sinhala only and/or Tamil only learners. The International panel would in turn need to mandatorily include those who are legally not Sri Lankans but have invested in Sri Lanka for their global activities. Like auditors they do not have the mandate to punish directly through local laws and institutions but would publish judgments for global purposes – including for those Sri Lankans who are global minded. Sri Lanka used global resources to combat what it claimed to be Terrorism. It is now Sri Lanka’s turn to provide the return to that global community through the global pathway and not the local pathway.

The difference between the two judgments is the ‘gap’ between the Lankan mind and the Global mind. In Common terms it could be stated that the gap represents the difference in culture between  Service Provider and Beneficiary – due to lack of investment in global principles such as Doctrine of Separation of Powers. This could very well be on the part of the one with high status but unless we go through the process –we would not know whose mind is weak – would we?

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