Friday, 18 March 2016

Towns across the northern province came to a standstill today due to a hartal campaign launched as a protest against the recent rape and murder of a 13-year-old school girl in Ukkulankulam, Vavuniya. -

Gajalakshmi Paramasivam – 18 March   2016

Responsibility to Protect = Right to Question

“Sovereignty no longer exclusively protects States from foreign interference; it is a charge of responsibility that holds States accountable for the welfare of their people”  – UN

“A government cannot promote state security at the expense of human security. The latter must be ensured, come what may, by governments if humanity is to be protected against self-destruction” – Island Newspaper – Sri Lanka

As per global principles – a Country is taken as Sovereign until known otherwise. As per principles of humanity – a human being is taken as Sovereign until known otherwise. Usually we tend to operate as Sovereign units by forming groups – for example family units and institutions. Where such units are strong in Sovereignty – a Country becomes strong in Sovereignty. Where family units and workplaces are disorderly it weakens the Sovereignty of that nation

In a country where the People have voting rights to elect government – does the Government have the Responsibility to Protect or do the People have the Responsibility to Protect their Sovereignty and use the Government as a Facility towards this? The question becomes even more important in Countries like Sri Lanka where voter groups have strongly opposed the Government. Simply asked – did the Government have the Responsibility to Protect the JVP Rebels in Southern Sri Lanka and LTTE Rebels in Northern Sri Lanka? If yes, was this a greater Responsibility than punishing the Rebels to protect the Sovereignty of the Democratic voter from these very Rebels? In a Sovereign nation using the path of Democracy – the Top-down Responsibility to Protect would be Equal to the Bottom-up Right to Question. One who is Sovereign would recognize this anytime, anywhere. One who is committed to upholding Sovereignty would take the ‘other’ side to make up a Sovereign group anytime anywhere.

The moment a voter acts to violate the Sovereignty of another – s/he damages her/his own Sovereignty. To that extent s/he loses the Right to question an institution that the other is part of. A child who violates the Sovereignty of another child in the same family – loses the Right to question the latter until such damage is restored. Until then Parents have the higher Right  to Discipline the Children and also  Responsibility to Protect the damaged children from the sibling who exercised excessive Right. This applies to Employer/Employee as well as Government / Voter relationships. In Democracy, the voter who actively votes is the Parent and at other times the Government is the parent.

A principle that the Government is Responsible to Protect its People takes value away from Democracy. In Sri Lanka, where there are Protests by the People against the Government does the voter have the priority  right above the government to be protected?

The example that comes to mind, is the 24 February 2016 shutdown/harthal -  in Northern Province – resulting from the rape and death of a teenager. The protestors would have included those who supported the Rebels – including those who voted for and/or on the basis of Vaddukoddai Resolution 1976 – the first Political declaration of Tamil Sovereignty. I consider myself an independent person – and attended Court as scheduled – despite our side lawyer informing me that he would not be attending Court. The other side – natives of Vaddukoddai – hired Colombo lawyers. Their barrister – a clever person – said words to the effect that he ‘could move for a dismissal of our Appeal but reluctantly agrees to a postponement’. I responded by stating that given that I had prepared the primary Appeal Application – I could represent myself. The judge said to the Colombo group of lawyers that they needed to be in touch with Jaffna reality. In other words – those lawyers needed to absorb their share of costs under those circumstances. That to my mind was a vote against Hybrid Court system – the foreign judges in this instance being Colombo lawyers who come for their own selfish reasons to Jaffna.

The test of Sovereignty of a nation is often its Judiciary. Judges who are dependent on lawyers promote damage to Sovereignty of the nation including through Politicians who are dependent on voters. It is worse when one is ‘free’ of supervision and is driven by quick outcomes – as was the case with the above group of Colombo Lawyers. They reminded me of the American Vice Chancellor of the University of NSW who ignored my warnings and took ‘higher position’ than I  - an independent worker whose earned rights as a professional was damaged. An American groomed Administrator cannot be higher than an Independent Australian groomed worker in Australia. By taking that higher position against me – an independent Australian – the Vice Chancellor damaged his own rights in Australia. That American Vice Chancellor allowed the Police to arrest me unlawfully and he himself was dismissed by the Governing Council. That happened due to the Absolute power of Sovereignty which Protects the person who Protects It.

The Judges of Mallakam Court where the above matter was heard at the primary level – also contributed to the damage to the Sovereignty of the People. The Primary Judge ruled that our Affidavit (Appendix 1) – prepared as per our previous experiences in Sri Lanka – which were facilitated by Affidavits signed in Australia, Singapore and Canada – dismissed our Affidavit on the ground that it was not singed in the presence of an Attorney at law or Justice of Peace.  (Appendix 2).  Given that on the face of the document – it was attested by a Jaffna JP and my husband signed it in Jaffna where he came for that purpose - our lawyer interpreted that to mean that the Jurat Clause was missing. The cost of travel from Sydney to Jaffna  is far greater than the cost of travel from Colombo to Jaffna  - which loss the Colombo group was trying to recover from us on 24 February.

The Affidavit prepared by the Petitioners under the Guidance of the Colombo team had the Jurat Clause (Appendix 3) which translates as follows:

I declare that the foregoing having been read over and explained by me to these deponents  and they having understood same, affirmed  and set their  signatures to  this on this 1st day of August 2011  at Vaddukoddai

At the beginning of the Affidavit – which looks almost identical to the Application the wording translates as follows:

“We, Sellathurai Mahadevan and Sakthidevy Manadevan who are husband and wife respectively, and living in Kallday lane, South-West Vaddukoddai and of Hindu religion, affirm and declare reverently,  truthfully and faithfully affirm and declare as follows:”

As per the Jurat clause the  Affidavit was NOT prepared by the litigants but by someone else – and the JP was merely explaining it to the deponents. But the Affidavit at the beginning says that the deponents themselves madeup the Affidavit. This seems a regular format in Sri Lanka – as if the ordinary people need legal help to make affidavits. Such affidavits amount to coaching witnesses to say the ‘right’ thing. Legal experts have the responsibility to facilitate such participants but need to be careful not to interfere with the substance of the facts brought to Court.  A Court where relevant facts are greater than the Legal theories / rules used by the Court – the Court has the responsibility to become a facility. Where such happens continuously – the need for new laws covering wider values become essential to uphold the Sovereinty of that Place.
Vaddukoddai has confirmed that it is open to ‘foreign-influence’ and that the Political Declaration of 1976 is no longer valid. The People are the test. When those who are not capable of making their own independent affidavits for judicial purposes are in the majority they declare their Truth that they need Protection of the higher authority with custody of power. Such persons do not have the authority to use their lawyers to demand that the Affidavit of another be set aside due to invalid format. Such is the responsibility of the Court Administration which is part of the Executive.
In Sri Lanka – all those who are in support of Rebels do not have the Right to expect – leave alone claim Government protection. They need to protect themselves at individual level and/or as a group. The Government in turn has first responsibility to protect those who protect the institution of National Governance through every day life.

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