Gajalakshmi Paramasivam-28 February   2016

President’s Counsels – Executive or Judiciary?

Our Application for Leave to Appeal was listed for hearing in Jaffna High Court, on 24 February 2016. The matter related to the interstate estate of  my husband’s brother Subramaniam Yoganathan. My husband and I arranged our schedules – so we would be in Jaffna on that Court day. On the morning of 24 February, our Jaffna Lawyer rang to inform us that he would not be attending Court that day due to the Harthaal / Shut-down. The reason is explained as follows in the Weekend Nation:

[Last week saw the entire Northern Province virtually coming to a standstill over the rape and murder of a 14-year-old girl in Vavuniya.

The public blocked the main A 9 highway demanding justice for Harishnavi who was brutally raped and murdered. This is the second largest public reaction after a similar incident in May last year, where another school girl, Vithya, was raped and murdered in Punguduthivu.] ‘Aftermath of war’  by Arthur Wamanan

I learnt about the rape and death of the teenager in the bus from Jaffna Town to Vaddukoddai. The experience was shared by a  widow who travels to town, leaving her little boy to be looked after by her relatives while she went to work. The young widow said that not only girls but even boys were at risk when mothers were away at work. I agreed and urged the young working widow to pray – so no harm would come to her son, while she was away earning a living. I believe that my children were protected by Divine Powers due to my prayers – including when I was working in Papua New Guinea where I was earning and saving to build a home in Colombo. I felt for the mother of the young teenager who was raped and killed last week – which invoked the shut-down of Northern Province private sector. I believe that identifying with the pain of others is deep prayers. But I did not join the passive resistance by the Private sector. Instead, I attended court – knowing very well that our lawyer would not be present. I was thus part of Public Service while our lawyer was with the Private sector.

Assembled in Court were the three lawyers from Colombo – representing the Respondents in our matter. They were NOT part of Public Service but were not part of Jaffna Private sector. The leader of the team was – Mr. Parathalingam PC -  whose services were terminated by me in a Colombo matter regarding my Land taken over by a Sinhalese while I was away in Papua New Guinea. I went to Papua New Guinea to build a home on that land purchased lawfully out of hard-earned and hard-saved money. Mr. Parathalingam PC’s services were terminated due to ‘conflict of interest’ when he appeared for  our opposition  in the Jaffna testamentary matter. This resulted in our solicitor also resigning and I am now without a lawyer in that Colombo matter. I have decided to fight to establish the Truth and leave the rest to the Court system – as it is NOT my problem if the Courts cannot uphold the Truth. No Justice is higher than the Truth. I will get my Natural judgment through my pathway and the other side will get theirs through their separate pathway. The Legal system would have contributed strongly to the ethnic divide through its own weaknesses.

Mr. Parathalingam PC said in Jaffna High Court on the day of the shutdown,  words to the effect - that he could move to have the matter dismissed with costs against us and that he was agreeing to a postponement under protest. I stated to the Court that given that I had done the substantive work to prepare the first set of Appeal Application, I was ready for the matter to be heard on that day itself. Then Mr. Parathalingam PC said that I would need to revoke the proxy to the lawyer before doing that. I was ready to do that also – as I usually represented myself in Australian Courts which usually facilitated lay litigants to meet the requirements of such technical processes.  The Jaffna Judges decided to adjourn the hearing. The Judge informed the Colombo group also to appreciate that the situation in Jaffna was different to Colombo and emphasized that the lawyers needed to keep in touch with the Jaffna groups.

This kind of adjournment is regular in Colombo also – but for different reasons – often due to senior lawyers not turning up. We paid Mr. Parathalingam PC whenever the Colombo matter was adjourned due to the absence of the other side lawyer Mr. Faiz Musthapa PC who sent his juniors to mark attendance. There was no protest against that from Mr. Parathalingam PC of  Colombo in Colombo Court. To my mind, the Public Protest is the ‘other side’/return karma of Lawyers causing delays regularly in Court for private purposes.

The question is whether lawyers have the right to claim costs for negligence  by their own profession. Should the litigant be penalized for the weaknesses in the Judicial system? Also, are the lawyers part of Executive Government or the Judiciary in Legal Administration – common to all parties including the Public? If they are claiming to dismiss a matter on the basis of non-attendance or other such Administrative ruling – should the litigant also have Equal right to dismiss a matter  for an Administrative failure on the part of the opposition lawyer ? President’s Counsels have the higher responsibility to lead the Public in such Administrative rulings on Equal Opportunity basis.

One needs also to ask the question as to whether  additional punishment of offenders cure the Judicial system and therefore our society – of its disrespect for Judicial Administration? The Weekend Nation reports as follows in this regard:

[New guidelines to courts to combat sex crimes

By Ruwan Laknath Jayakody -

The Ministry of Justice is planning to introduce new guidelines to be followed by judges of all courts in sentencing convicts, especially sex offenders.

The move comes in the wake of increased crimes and sexual abuse of minors where many under-aged girls have been brutally gang raped and killed in the recent times.

Sixteen-year-old Vithya Sivaloganathan was abducted, brutally raped by a gang on her way to school at Pungundithivu, Jaffna in May last year. Last week, 13-year-old Harshavi Gangatharan, a student of Vipulananda Vidyalam, Vavuniya was gang raped and killed.
The Ministry of Justice has already appointed a team of experts headed by the former Attorney General Palitha Fernando to look into this matter and make recommendations which would later be introduced into the legal system as an Act of Parliament.]

The Jaffna Public would not have had the power to shut-down if our Legal Administration had functioned effectively – without feeding the greed of private lawyers who hijack social matters from the Public – so a matter could not be heard without them. The Judiciary must exist first for the Public instead of the Public being thrown the left overs of the legal system. Those who were previously responsible for Legal Administration but failed to highlight and where possible cure the system – would not effectively address the above problem. Former Attorney General ought to have earned Governing position to undertake this higher responsibility. The Government has the duty to publish the details of such contribution – if it is to cure the problem at its root. Lawyers have the primary responsibility to uphold the law including the Doctrine of Separation of Powers between the Executive and the Judiciary. More and more lawyers are failing the eligibility test.

The Jaffna Testamentary case is required to be heard under the law of Thesawalamai - Customary Law of Northern Tamils. If Public Protests through Non-Violent processes happened on that day it confirms that that is now part of Thesawalamai / Customary pathway of Jaffna Tamils. Natural Verdict against Colombo?