Gajalakshmi Paramasivam – 29 May    2016

Sri Lankan Muslims in Public  Administration

Here in Vaddukoddai, in Northern Sri Lanka, I said to a student in Management studies – that to live harmoniously, we must use our Truth where we are ‘free’ of position responsibilities or consciously use Common Principles, Laws and Values to relate to each other.

As highlighted by Professor Laksiri Fernando – whom I got to know through the Sri Lanka Reconciliation Forum, Sydney – the recent incident in Eastern Sri Lanka has surfaced racial tensions. Professor Laksiri Fernando states through his Colombo Telegraph article ‘Sampur Incident & Tensions In Devolution’:

[There are several issues related to the devolution of power to the provinces lurking behind the Sampur event where the Chief Minister (CM) of the Eastern Province (EP), Nazeer Ahamed, abused and insulted a senior naval officer, Captain I. R. Premaratne, at a school event where small children were present in addition to the US Ambassador. The behaviour typical of many politicians in recent past or even today should be condemned without hesitation.]

To my mind, we the People have to make decisions about how to bring these demonstrated Governance values – be they positive or negative – into our lives. Where we do not have position responsibilities – we are free to use our Truth and bring that person into ourselves as strengthening our side or showing the ‘other-side’ as Opposition. Truth allows only that kind of ‘inclusion’. Where we use relativity – we need Common Principles, Laws and Values to position ourselves viz a viz the other person. A child’s school behavior  is likely to be different to her/his  home behavior due to the child being more in her/his Truth at home and conscious regulated behavior in school. Likewise where leaders are strongly in their ‘home-culture’ – they are likely to override that True behavior in public also.

Professor Laksiri highlights:

[there are two other issues more profound in my opinion than what appears to be the case. First is about the way the CM has apparently been treated at the said event without being invited to the stage by the compere. It is said that it was the Governor who gestured him to come on board and when he was approaching the stage he was stopped by the naval officer probably to give way for the small children. Could it be a mistake or misunderstanding? I really doubt. As The Island editorial (26 May 2016) rightly said, while condemning the behaviour of the CM, “The CM should be treated with due respect and if any official has been remiss in his duties action is called for against him.”]

The million dollar question is - what are the duties of the officials and the leaders concerned? The parallel that comes to mind is the University system in Australia which I got to know through the University of NSW. The Chancellor is the parallel of the Governor and the Vice Chancellor is the parallel of the Chief Minister. Given that Professor Laksiri has been part of the Official system of the University he is more like the Vice Chancellor’s group than the Chancellor’s group. Duty to the Environment therefore prevails above  personal Truth. To this day, Professor Laksiri Fernando has not ‘understood’ that I was acting as per my Truth at the University of NSW. As per the responses from Professor  Laksiri Fernando I concluded that he grouped me as one of the ‘unfortunate lot’.

When something happens we can choose to bring that into us as part of ourselves and make the experience our Truth or relate to it through Common Principles and Laws. The Governor calling the Chief Minister to the stage was based on Truth – the same way my complaints were identified with by Chancellor Sir Anthony Mason followed by Chancellor Dr. Yu. But I learnt that their powers  stopped there. The reality was cover-up of the Central Administration’s weaknesses by the Vice Chancellors.

In the Sampur incident, as the Common guest – the Chief Minister could have taken his position as the ordinary citizen’s person – as I often do when Professor Laksiri Fernando is appointed to and/or facilitated to take the ‘telling’ position at the Sri Lanka Reconciliation Forum – Sydney. Officially as per my way of respecting the Structure - I then take the ‘listening’ position. But where the ‘telling’ goes beyond the institutional positions and their relationship – treat the ‘teller’ as a Common outsider. I have done this many times with Professor Laksiri Fernando himself. The strongest memory is that of Projects where Professor Laksiri Fernando who is part of the Academic Program – tried to override my contribution. This resulted in the persons who were ‘official listeners’ but were usually deaf to the ‘teller’ asking me during meal breaks to explain my contribution.

Professor Laksiri Fernando has demonstrated this ‘telling-tendency’ as follows:

[The CM has apparently regretted his behaviour according to the SLMC leader, Rauff Hakeem (The Island, 26 May 2016), but in any decent democracy this is a matter that any responsible politician or political officeholder should have resigned on. Unfortunately we don’t have that responsible tradition in Sri Lanka. In addition to any ‘disciplinary’ inquiry conducted on the matter by the President or the government, the aggrieved naval officer has every right to claim damages from Nazeer Ahamed, and he may be liable not as the CM but in his personal capacity. Otherwise, the tax payers’ money would be wasted.]

Wrong Professor Fernando, wrong due to LBW rule! The Chief Minister as per his position is the highest Administrator of that area. Confirming that structure is the duty of every Government Official including the Naval Officers in that area. Navy is the Leg and the Central Administration responsible for the Naval  Officer is the Wicket. The Naval Officer has authority to take the position of a private donor – in the event/project described  as follows by Professor Laksiri Fernando:

[It is said that the event was organized by the Navy to declare open a computer unit and a science lab at the Sampur Mahavidyalayam to the benefit of the students. This is commendable. On the Navy initiative, they were the donations of the David Pieris Group and the incident has happened when some school bags were being distributed to the students on the stage.]

In the Sri Lankan Public Administration – the Navy has the duty to guard our coastline and not to organize public events outside their boundaries. The could attend and be part of the Guards protecting the public – but not directly participate in Educational activities which are the responsibility of another part of the Administration – in this instance the one that comes closest is the Chief Minister through his Common Consolidated portfolio. It is NOT the Governor who has to connect through his Truth and provide policy feedback to the Central Government.

When I watched on TV that night - the expressions of the Chief Minister – I was unhappy. But I have learnt to appreciate that the Truth is more important than shows of  harmony especially in war affected areas. So long as we have enough ‘sophistication’ to include that unpleasant Truth in our own pleasant Truth – we are still progressive as One unit. The weaker parallels of that behavior have been demonstrated by many leaders in the Sri Lankan Diaspora in Australia – including by Professor Laksiri Fernando at the Sri Lanka Reconciliation Forum, Sydney. Anything more pleasant-looking would be frivolous if not covered by Common Principles of the official structure. We need to  bow to that Truth where it is manifested through the Elected Head of that area.

Truth above the Official level – becomes positive Energy.  Truth outside the Official boundaries – manifested at lower levels – especially emotional levels through hearsay  – becomes negative Energy. Sampur is a reservoir of such negative Energy due to the deaths and suffering of civilians in the hands of those who did not have the authority of Truth nor the blessings of the Official system and its laws. Interestingly – Water  the Natural element is part of the reason for this negative Energy in that area including through the Battle of Sampur. One may choose to not recognize Truth to do one’s duty. But where Truth is recognized to avoid duty – the manifestations confirm continued existence of animosity which the current Government has failed to diffuse or absorb.

Most Muslims known to me are driven by their Truth than by their position duty in a multicultural area. One needs to expect this and use their positions as facilities and not ‘take-over’ to run the show as if Sampur was a Naval base. Taking over is an invitation to react at the emotional level and the result would be the Middle-East also coming to Sri Lanka the way India came through Tamil Nadu. 

Gajalakshmi Paramasivam – 28 May    2016

Australian Tamil Management Service in Vaddudkoddai - Upholding Common Global Values

Australia Deporting the Immunization against Terrorism

At the Opportunity Shop here in Vaddukoddai, Northern Sri Lanka, I take the ‘position’ of Sales person. One young customer of about 11 asked me the other day when I was a bit late in opening the shop - whether ‘they’ gave me the keys to the shop? I smiled and said ‘yes’. I was also the ‘they’. But given that we were also training young ones to be orderly workers – I did not elaborate that I was the boss and that I was also the worker. While at the shop - I work without break – to clean the shop, wash the utensils, prepare the food and then lay it all out to attract the young students and once they are gone – to clean, tidy up  and implement  the  measures before taking the 4 o’clock bus to my home-suburb of Thunaivi. The students come after school and to me every student-customer is important. I believe through my experience, that when we care genuinely – we connect ourselves to the minds of those about whom we care and the sharing happens naturally. That to my mind is the way the Lord’s system works. When selling I do not think of the costs. When the cash box fills mostly with Rs 20 notes (Australian 20 cents) I feel full. I bring the money home and keep in front of my mother’s picture and thank her. I believe that to the extent my mother invested in such activities to the extent of developing ‘wisdom’ I am also Energized. My mother often took the express pathway of attributing credit to her grandfather A.M. Pillai - who was an outstanding business-leader in Burma.  At this stage of my life I am able to not worry about balancing the costs and sales at money level. The separation at mind-level helps feel the fulfillment through box full of Rs. 20/-  notes.

In this process of ‘thanksgiving’ , I have learnt that Time & Place – known as ‘change agents’ are also the vessels that give form to our Energy. Hence we celebrate through memorials and anniversaries.

The sacrifices made by Tamils who fought for Equal Opportunity through their respective structures - was given form as  Vaddukoddai Resolution 1976 which was confirmed by the system of Natural Justice through Tamils even though they were only about 25% of the total population, becoming the Equal Opposition in Sri Lankan Parliament in 1977. The suffering of Tamils during the 2009 battle to eliminate the LTTE demoted the Sri Lankan Government to a lower standard. One does not need proof to know this as an insider. The victory was very much local due to the pathway chosen.

When Tamils – especially those who contributed to Equal Opportunity values in the new Nations that have become their home - gave form to their pain and loss through this ethnic conflict -  there was a position earned and taken by them. In many ways – I also created this kind of ‘position’ and became a lone-operator at the physical level to maintain my wholesomeness in its purity – undiluted by empty theories which by my silence I also had been confirming. I ‘came-out’ through my legal actions against those who had the responsibility to uphold Equal Opportunity practices. Part of that form was the then Prime Minister John Howard who was present with the American President during 9/11 attacks. I knew then that the system of Natural Justice had delivered its verdict. Knowing this was important in determining the kind of work I was to undertake to protect Australia from such attacks. Each one of us Australians, contribute to the Energies of that place called Australia. The positive ones happen through wisdom and/or  common faith. The negative ones happen through ignorance and/or selfishness.

As per the WA Today news report :

[A Sri Lankan asylum seeker who has lived in WA since arriving illegally by boat in 2012 has been ordered to return back to his home country, despite telling authorities he feared he would be persecuted for his religion.   

The Federal Court of Australia on Friday dismissed the Tamil man's application to have a previous decision not to grant him a protection visa re-heard.

A Federal Court Judge has dismissed an application by an asylum seeker to have his case reheard.  

The man, whose name has been suppressed in court documents, claimed he fled Sri Lanka after his father was shot and killed by the Sri Lankan army and he and his family were captured and beaten by separatist group, Liberation Tigers of Tamil Eelam, in 2008.

The Sri Lankan army and LTTE were engaged in civil war from 1983 to 2009.

The man arrived in Australia in August 2012 and applied for a protection visa in May 2013 on the basis of his Tamil ethnicity.

He claimed that prior to his arrival in Australia he had been forced to undergo physical fitness training by the LTTE and, since leaving, Sri Lankan authorities had been looking for him.

A delegate for the Minister for Immigration and Border Protection refused his application in February 2014, saying that he did not accept the Sri Lankan man had suffered discrimination as a Tamil.

In February 2015, a tribunal supported the delegate's decision, ruling that it was most likely the man's long-term unemployment that had led him to seek asylum rather than a fear of persecution.

A Federal Court of Australia Judge also upheld this decision in November 2015.

 "While the (Tribunal) accepted that Tamils in Sri Lanka continued to face a degree of harassment and discrimination on account of their ethnicity, such as difficulties accessing employment and disproportionate monitoring by security forces, it did not accept that this amounted to denial of their capacity to subsist, serious physical harassment or any other form of serious harm," Friday's Federal Court response to the man's appeal application read.

The man, who represented himself during the proceedings and required an interpreter, applied to have the judgment set aside, arguing that the Tribunal decision did not give enough weight to his father's death and his capture.

He claimed that although the civil war had officially been declared over in 2009, treatment against Tamils was still "severe".

If he does return to Sri Lanka, he will likely face a short term of imprisonment for unlawfully leaving the country. ]

To my mind, the above decision by the Australian Tribunal upheld by the Federal Court confirms the narrow span of mind by Australians who benefit from the global status as providers of asylum but lack the wisdom to escalate the matter to global standards.

The statements of claim by the above applicant include:

that [‘he fled Sri Lanka after his father was shot and killed by the Sri Lankan army and he and his family were captured and beaten by separatist group, Liberation Tigers of Tamil Eelam, in 2008]

Those who have had the Sri Lankan war-experience would identify with the above without needing external evidence. So long as the applicant was able to confirm that his father died and his family was in custody, due to the actions of the Sri Lankan Army and/or the LTTE – he was entitled to be taken as a genuine applicant. By representing himself he had earned the right to be included on the basis of his belief as given form by him. The same events as experienced by an Australian, including Judges of the Federal Court – would be given different form as per their experience. Like two religions going towards One God - both would be right – provided they are based on Belief as per each one’s Experience. As per the above report:

[While the (Tribunal) accepted that Tamils in Sri Lanka continued to face a degree of harassment and discrimination on account of their ethnicity, such as difficulties accessing employment and disproportionate monitoring by security forces, it did not accept that this amounted to denial of their capacity to subsist, serious physical harassment or any other form of serious harm," Friday's Federal Court response to the man's appeal application read.]

The above description which appears to have been included in the Judgment confirms that the Federal Court judge has given her/his own form to the claims of pain and loss suffered by the Applicant. It is the parallel of  the Federal Court effectively stating to me that white Australians also were victims of unjust discrimination  at the workplace and hence my claim of Racial Discrimination was ‘lacking in substance’. That may be as per their Experience based belief. But when in the Judge’s chair they have to use the Higher Common pathway – which in this instance is the pathway of Global Laws.

 Like the above Applicant I was also self-represented including when I complained against former Prime Minister John Howard, whose judgment was eventually delivered through 9/11 followed by Bali Bombing followed by loss of his seat in Parliament. Those of us who need to ‘see’ need to manifest our side. If our side is belief based the other side is naturally developed as an Equal Opposite but often waits for the right time and place to manifest. The right time and place for that person/those persons would not be the same as the right time and place for me. Hence the separation by time where the place is the ‘same’. If the place was different – then the time needs to be the same for a just decision. Australia was home to both – Mr. Howard and I and we were both required to practice Australian Laws. When we do so – we naturally become the Equal  the other side  -  attractive to the each other – as woman is to man and v.v. Given my genuine investment in global values/commonness – I identified with the other side during my lifetime but away from Australia. When separation happens through Time – we do not ‘see’ the other side.

The above ruling by the Australian Federal Court demonstrates separation of time as well as place and hence there is very little commonness between the Sri Lankan applicant and the Australian Judges. The Sri Lankan Applicant presented his facts which need to be taken as being Belief based until proven otherwise. Racial Discrimination cannot be set aside and replaced by general merit based assessment, in the case of victims of ethnic conflicts. The common victim does not need to know whether s/he suffered due to personal attributes. All s/he needs to establish is that s/he is a member of the victims’ group and that s/he suffered due to the words and actions of the person in authority. At the citizen’s level it would be difficult to claim racial discrimination if the other side were of the same race as the victim. Continuous suffering leads to our own reasoning and so long as they are belief based they take precedence over external reasoning – including through the legal pathway. Hence prescriptive rights which are officially  recognized in Sri Lanka. The above Applicant’s claim is the parallel of one who claims ‘prescriptive’ rights due to continued and undisturbed reasoning as known by her/him. The Australian parallel that comes to mind is de-facto marriage.

A self-represented litigant should not be overpowered by legal theory, the same way one should not apply marriage laws directly to de facto relationships. In the system of Democracy, a self-represented litigant is entitled to not only equal opportunity to access the hearing of the Court through equal  allocation of time but is also entitled to be heard first as if s/he is right until proven otherwise.

Australia which does not look down upon de facto marriages culturally as well as officially, has the responsibility to use that pathway when assessing those who have been denied equal opportunity to access Common Official Facilities. In Sri Lankan Courts – criticism of lawful second marriages are heard by judges who are easy-going and fail to discipline lawyers who choose that pathway to reduce the status and mind of the opponent. This kind of mind-lowering happens also with any unjust subjective discrimination.

As per the above report – the Australian Government stated/asked and was granted:

that [it did not accept that this amounted to denial of their capacity to subsist, serious physical harassment or any other form of serious harm].

When the mind is continuously in low-order – the denial is self-inflicted. I am proof of this. The Federal Court was entitled to rule as per the Law but it does not have the authority to  change the form of ‘facts’ by one side or the other.

If indeed this Applicant had suffered genuinely but could not escalate the expressions to suit the Judge’s mind-order then the ‘other side’ would happen in two different forms when the Applicant gets back to Sri Lanka. This might be better for the Applicant  under the current government in Sri Lanka – but only if this Applicant stays away from his previous ‘home-area’. If the Applicant returns to the area where he experienced the pain and suffering to which is now added the humiliation of being deported – he is more prone to influences that would lower his mind to the extent that he may even commit suicide. Displacement to a more free environment helps us cure ourselves. My advice is for this Applicant to stay close to Colombo which is the place where global values are being developed due to the commitment of the current government. In the alternative this Applicant could stay closely connected to the Australian Tamil Community through ongoing development projects of global standards. Then he might find that - not only does he have enough financial resources to be free of financial-debts but also have access to the consolidated value of the Global Tamil Community AND  quicker access to the wisdom of his traditional elders – Resident in the local area.

Australia, in turn needs to work to negate the ‘other side’ developed by this one-sided judgment , if it is not to develop the cancer of anti-terrorism fear/anxiety which also lowers the mind of those obedient to and / or dependent on the Government. The above Applicant – to the extent he did suffer due to the war – was the Immunizing - Prevention Medication through the practice of global laws. By deporting him last Friday – Australia deported its own Immunization. 

One who uses the Authority of Global Laws needs to see both sides as Common litigants of the Global Community. 

Gajalakshmi Paramasivam – 26 May 2016

Common Culture & Common Governance

I was forwarded the reference to a recent speech by Justice Ilanchelian who has been vested with the responsibility of managing Law and Order in Jaffna – through  Court Administration, after the damage by the Public over raping of a school girl. Even as I listened, I was joined by others at our Vaddukoddai shopping mall. They expressed appreciation for the good work being done by Justice Ilanchelian.

I was listening to the above speech after students from Jaffna College graced our ‘Opportunity Shop’ selling mostly Australian products. The kids are a joy to be with. Some of them bring their parents later and we make the connection to the parents through the kids. Justice Ilanchelian emphasized in his speech the importance of parents guiding their kids in law and order. I find that there is a big gap in the culture of parents of Mr. Ilanchelian’s time and today’s  parents of  Jaffna. There is also a gap between the culture around Jaffna College on the one hand and the People of Thunaivi determined the date of  an opening ceremony as per the availability of the Chief Minister. That is like deciding on a wedding date on the basis of the convenience of the dignitary. When questioned, one guy said that importance was given to such personalities so that they would allocate more resources to them.

The Chief Minister by his status as former Judge of the Supreme Court and due to his age – is like Mr. Ilanchelian’s father. There are young lawyers who through their public speeches kindle the emotions of youth – including in Vaddukoddai area where the first declaration of Political independence was made in 1976. They are like Judge Ilanchelian’s students. If  Mr. Ilanchelian is able to make the connection between the professional order demonstrated by Mr. Wigneswaranand the young lawyers who make emotional speeches - that is the maximum level at which he is entitled to expect leadership from parents of school and university students. The rest if it happens is bonus. Our professions are our families. We need to have good governance order within our family for us to deserve good social order. Where the two are not structured to be interconnected – we need to rely on Truth which is the Universal connector.

When the mind is still, every one of us makes the connection at our true level. Until recently, I was more focused on the ‘Opportunity selling’ in Thunaivi. To my mind, Opportunity shops help raise the lifestyle standards of the less affluent. The Service attitude of the persons managing the Opportunity shops makes the products independent of the energies of the original owners/possessors of the goods who often buy goods for the pleasure of shopping. The condition for the buyer is that s/he must pay the stated price and nothing comes free. Given that majority donors are of Sri Lankan origin and would  havestayed on in Sri Lanka – if not for the war – that Opportunity shop represents that generation that made that cultural gap that the likes of Mr. Ilanchelian are trying to fill. In Thunaivi – try as much as I could – the level of connection was low. They could not project beyond a certain point and therefore they could not develop expectations from themselves beyond that point. Relatively speaking the students of Jaffna College demonstrated greater order and enthusiasm. The connection through the Opportunity shop in Vaddukoddai is much stronger than in Thunaivi where I continue to care more for the folks than they give recognition for.

The speech by Judge Ilanchelian would have been of very little intellectual value to the folks of Thunaivi. But knowing that he is high up in the Sri Lankan hierarchy would help them ‘show’ Equal status to other communities. Towards this

To my mind, it is easier to accept the realistic structure as of current times and use that as the base than to expect as per our times which is largely theory to the younger generation that has developed through the pain and loss of war. Quick dumping of theories and funds by over-enthusiastic donors - leads to high level of consumption without the appropriate structures that would connect income to expenses.Law & Order is recognized at the individual and family levels – the balancing of funds within the control of the individual and parents.

In many ways – the ‘Opportunity shop’ is a small model  of ‘service-projects’ needed by Jaffna and funded by the global community. The Housing project in war affected areas which is under scrutiny, confirms that the connection between the beneficiaries and the service providers  is weak. As the Hon. Sumanthiran highlighted during a recent interview –the quality confirms that they are more temporary than long term confirmations of our war-heritage. The lessons we really learnt from the war ought to be  represented by those housing projects. Given that the war happened due to ‘rights’ and the Tamil community was defeated – the post-war recovery needs to be ‘experience’ based. The best way to have the experience in current Jaffna is through ‘Business’ approach. The Opportunity shops help raise the consumption standards of customers who are yet to be exposed to the outside world. Charity to the poor who lack the inner vision to raise themselves to the higher order of thought must have a ceiling. Beyond the optimum level needed to support them maintain their level of earned consumption - comes with the high risk of excessive consumption – including in electronic goods and pleasure drugs.

Yesterday, I had the need to get the charger of my mobile phone tested and after being urged by my husband to buy a smart phone for myself – I made inquiries at the Samsung phone shop in Jaffna town. While I was waiting for the testing to complete – I inquired about smart phones – their features and their prices. Where they are not way above my expectations – I prefer to spend the money in Jaffna where I was born and have a responsibility to develop heritage values. One of the local ladies who was seated there waiting for her service to be completed – asked whether they had the J7 ??? This lady, to my mind, was deriving some satisfaction from demonstrating her knowledge of smart-phones that I was lacking in. Later after that lady left, I learnt that the most appropriate one would cost me around Rs.20,000/-. (AU$200).I said I would think about it and left. Then at the ladies’ salon I noticed the staff using smart phones and asked them about how much theirs cost? They said nothing much – about Rs.18,000/-!!!!How does one reconcile between the two cultures? Back in Australia, our grandchildren also use smart-phones – often bought out of the monies they have earned from their parents and/or collected as presents. To that extent I do allow margin for ‘generation-gap’. But anything beyond that, to my mind, is due to weak structuring of ‘systems’ demonstrating lack of planning and budgeting.

With this in mind, I ask the question as to our own deservedness as a Community to get compensation at a higher level than we have earned.

One example that comes to mind in this regard is the experience at the Opportunity shop – which is also a Coffee shop. Two boys of about 10 years of age came. One guy bought one jelly and one drink. The other guy did not buy anything. I thought they would share. I noticed that the first boy consumed both items. They back for seconds of the two items. On the way the paying customer threw at the entrance -  the plastic cup in which the jelly was served. I asked him to use the dustbin kept for that purpose. He kept walking towards the counter. After serving the guy who paid me I asked the other boy whether he wanted anything? He said he would have water. I gave him some chilled water. I wanted to give him something but could not because that would have been bad business-order. About a minute later -  the two left and I reminded the paying-customer to pick up the garbage he threw and place it in the bin. He promptly asked the other guy to do that. I asked him whether they were brothers. Then the paying-customer said ‘no we are friends’. I then said ‘why should he pick up your rubbish – you need to do it yourself’. In the meantime – the other guy was about to pick up the rubbish. I called him over to the counter and the paying-guy also helped me in this regard. I handed over a jelly to the meek guy and said it was for helping to keep our yard clean.

The rich guy represents the members of the Diaspora who come back to Sri Lanka and spend high. The other guy is the local who goes around with those returnees and do their bidding to get something in return. Where the returnees are ‘simple’ in their attitudes – the smart locals try to ‘collect’ more from the returnees for ‘local’ services.

This has been my experience with lawyers. In the Testamentary case relating to my Brother-in-law of Vaddukoddai –the eldest of the living sisters of the Deceased claimed to Barclay’s Wealth in the U.K. - that she was representative of the heirs. If there was no Thesawalamai Law and thereforebrothers and sisters were Administered and managed under one set of principles – one could claim that the sister had the right as the older person. But in this case there also there was a living brother older than this sister. My husband refused to accept this arrangement and hence we objected to the issue of Certificates of Heirship  without Administration.  To agree to such an arrangement would have denied us the value as per the laws of Theswalamai – which was practiced by us. That sister and her family were sponsored to Australia by us. But like the above boy with money-power those children hired expensive lawyers from Colombo to confirm their claim. We hired local lawyers and suffered their lack of expertise that they demonstrated in presenting the case as per OUR EXPERIENCE. The ruling was unfavorable to us in the language of the Court and we have escalated the matter to Appeal level – again demonstrating our belief and our duty to Thesawalamai – the Common Law of Northern Sri Lankans.

The law of Nature however did not wait for the Higher Court outcome. The husband of the above sister passed away in Australia earlier this month. The son of the other sister who colluded with the above sister is now in Vaddukoddai – participating in Public events and representing that side of the family. A family elder to whom he delivered the invitation for the 31^st day ceremony highlighted to me that there was NO MENTION of the wife of the Deceased – Mr. TharmaratnamSabanathan. The names of all three children has been printed in the front page. The mother has been forgotten!!! Working through my understanding of the laws of Truth – this lady claimed status above the siblings – on the basis that she had been their mother after their mother passed away. When she therefore took the place of the mother against someone who had actually played the parental role (myself primarily) – she naturally forewent he right to motherhood credit. The judgment was carried out by her own children who left her out of the memorial invitation of her husband. This lady and her sister used our marriage – which is second marriage for me – to help their  lawyer claim in Court that I was after ‘other-people’s’ monies. But here in Vaddukoddai I am recognized by the older folks as the daughter-in-law of Maniyathaar – as my father-in-law was known. Society ultimately delivers the right outcome provided we escalate the matter to the highest common level of society. The level that we have earned is the level upto which we ourselves have invested in – directly and/or by paying tribute to our elders. Those who raised realized wisdom during their lifetime – become the Common Energy that all of who believe in that area/culture/ family. Those who hastily use power – get their earned outcomes, once they release themselves from the true owners of  leadership positions. There are many parallels of the above – starting with the LTTE which also ‘took-over’ that leadership position by force and also with the Government led by Sinhala-Only leaders who failed to recognize Diversity as being entitlement to Equal status.

Tamils who seek Devolution must confirm their Diversity including between man and woman – as facilitated by  the laws of Thesawalamai. Where one side continuously refuses to take instructions from the other – Diversity is confirmed and Equality is necessary to keep the apart and attracted to each other. That I believe is the best solution for our ethnic problem.

Gajalakshmi Paramasivam – 22 May    2016

Coconuts & Natural Disasters

The Island article ‘PM attributes natural disasters to opposition dashing coconut’ brought a smile to my mind. It is this one-mindedness that makes us Common beyond local cultures and physical attributes. As per this article:

[Prime Minister Wickremesinghe said he was awaiting a comprehensive report from the Disaster Management Ministry to proceed in that regard. "I have ordered the Disaster Management Minister to produce a full report. Let us have this discussion based on this report."

At this point, the Prime Minister sarcastically remarked that such a disaster would not have taken place if the Joint Opposition had not smashed coconuts at Kovils.]

The white flesh of the coconut represents our Soul/Truth. The hard outer shell represents our body and its representation of us to the external world. In this Hindu ritual - the outer shell is broken to reveal the inner-self. The law of nature is such that if we manifest one side the other side also happens – later in autocracy and immediately through our opposition in the system of democracy. The higher the position of the person the higher the level at which the ‘other side’ happens. As per my discovery – where a person who is true to that environment is affected by our words and actions – the other side happens at the level at which that true person has earned. If that person feels part of  the whole nation – then the outcome happens at that National level. If that person feels part of the Region then the other side manifests at the Regional level. Where the person feels global the other side manifests at the global level.

The family example that came to mind is that of a relative who was assisted financially by my husband but who ‘donated’ to build  the Murugan temple tower here in Vaddukoddai while failing to  contribute to our own efforts to cure  a high risk zone of emotional outbreaks - towards preventing future wars. Our projects center around a Temple and School of Human Values. When criticized by my husband, the relative had said that he wanted his children to get married and hence the donation to the above temple!  The son did get married but failed to get the blessings of  the very part of the family that cared for them during their time of need. The chances of the daughter getting married through the formal pathway have thus been diminished.

Breaking coconuts likewise, would manifest the ‘other side’ of our Truth as well. Small immediate benefits would happen if we are genuine, but big costs as per the past sins are also manifested – especially if the places are holy to those who were victims of those sins.

Emotions for example would produce their other side to the extent they are expressed through words and/or actions. All emotions based on experience are expressions of Truth and come with their own protection. If emotions are knowledge based but lacking in experience –  expressions of such emotions are expressions of  desire for authority and naturally create their other side – fear of authority. If the other side which happens to be the target of the expressions, is of a higher level then the return happens at the higher level. It is to prevent such excessive returns that we have common principles, laws and rules. One who raises the emotions to intellectual level and sees both sides – for her/himself – consciously takes the pathway to Truth. Hence s/he is not likely to express emotions at the primary level.

This could also be achieved by absorbing the pain and loss at the physical / emotional level due to considering the other person as part of oneself.   Then emotions become feelings. Feelings are experiences of ownership. The latter bypasses the intellect and is the better pathway for the less educated politician.

The joint opposition at whom the above remark was directed by the Prime Minister, actually hijacked the official title of the Opposition through their emotional expressions. The victims – Tamil Political Party – the TNA – representing Minority Tamil Community - paid a high price for expressing their pain of suppression – usually through the Educational pathway. The position of Opposition in Parliament was earned through this pain and loss claiming Equal status. Hence the return of the karma of war is high, when invoked. The Prime Minister was confirming this in his own way. The People must make the connection between their pain and the true cause as per their experiences.

Gajalakshmi Paramasivam – 21 May    2016

No Vesak Amnesty for Tamil Political Prisoners?

I believe in Buddha. Today – Vesak Day 2016, is special because I am at our Temple in Vaddukoddai District, where also, we have two huge Bo trees within our temple premises; – the Bo tree being the  sacred tree under which Lord Buddha is known to have realized Nirvana/Eternity/Truth. Due to our investment in this area, a natural structure has developed in this part of Sri Lanka. The Opportunity happened due to the war. I believe that when we eliminate unjust discrimination from our own minds, we become immune to unjust discrimination pain by others to us. The village of Thunaivi – where we have chosen to live when in Sri Lanka – is a village affected by Caste based discrimination which ended up separating and isolating the Toddy Tapper village of Thunaivi. The separation was due not only to the higher caste but also due to the lower caste seeking to live in the comfort of isolation – just as Eelam Tamils did at Community level and Sri Lanka did at National level.

Separation  based on  Truth is meditation. Separation based on desire for power leads to isolation – often self-imposed – using the other side’s weaknesses. In its article ‘Ethnic, religious minorities in Lanka still feel marginalised’, the Hindu reports as follows:

[Sri Lanka’s ethnic and religious minorities including Tamils still feel marginalised, seven years after the end of the civil war with the LTTE, a senior American lawmaker has said as he appealed to the Lankan government to take “concrete” steps to address their concerns.

“The leaders of the new government have made many ambitious promises to advance toward the goal of a stable and prosperous future for all. Now is the time to turn those promises into concrete action,” Congressman Danny K Davis said on the House floor on Thursday.

“The US, must assist and support in any way we can, but we must also keep incentives in place such as conditions on military and other aid until the government has accomplished real reform,” said the Democratic Party lawmaker from Illinois.

Speaking on the House Floor to commemorate the 7th anniversary of the end of the war in Sri Lanka, he said the Lankan government won the war to keep the Sinhalese and Tamil communities within one country, but has not yet won the peace.]

Lord Buddha developed and we enjoy the Vesak Heritage as part of that development by a fellow Human being. Does the Amnesty granted as per the report below – confirm this true heritage?:

‘ECONOMYNEXT - Sri Lanka’s Justice Ministry announced granting a presidential pardon and freeing condemned prisoners under a special presidential amnesty if they have reached the age of 70.

The ministry said rapists and murderers will be given the amnesty without considering the severity of their crimes as long as they have reached 70 years of age by May 21, 2016.

The ministry did not say how many prisoners would qualify under the bizarre amnesty, but a total of 540, which includes those who have been unable to pay fines, will be released on Vesak day.

President Maithripala Sirisena has granted the amnesty on a recommendation of Justice Minister Wijeyadasa Rajapaksha, a statement from the ministry said.’

When does one earn the deservedness to be pardoned? When does the authority so pardoning have the right to do so?

Since the name of Vesak has been used towards this Amnesty – one needs to ask the question as to what Lord Buddha would have done under the circumstances? Using Buddha’s heritage at its highest value is the best way we the heirs could attribute to that heritage. Experiencing it through our feelings is exponential in value. Respecting through laws and principles/Sasana is simply relative in value and when practiced genuinely it leads to  owning and feeling that value as if we are that value. Article 9 of the Sri Lankan Constitution requires the Government to promote such Respect.  Presidential Pardon requires one to have exhausted the path of  Common Law, and / or any law specific to cultural groups – before one relies on personal Truth to Pardon. Like realized souls, Fundamental Laws such as those embedded in the Constitution – have power by their very existence. They would work to support anyone who feels part of the whole through experience and/or develops ownership through their own position in the big system.

As I was sharing with a lady here in Vaddukoddai – ‘when we are true to ourselves, we are true to the god within us. That god within us is Naturally connected to the Universal Energy that we consider to be God.’

As per the American Government,  Sri Lankan Government is yet to make that connection with global Government.  To my mind, it is no coincidence that an American is speaking up for Tamils at a time when the Sri Lankan Government is releasing General prisoners without specific mention of the Tamil Political prisoners. The question is whether or not the Tamil ethnic issue needs to be addressed specifically – now that there is a record that Tamil prisoners died in custody - my brother-in-law being one of them. Does the government not have the responsibility to get to the bottom of that before addressing general amnesty which has the effect of sweeping the ethnic problem under the carpet.

Like in the case of  Thunaivi – in the eyes of the Government, the ethnic issue may have gotten to this due to the LTTE and therefore due to the Tamil Community itself.  But does that permit the Government to ignore the problem while addressing General problems? Would that not lead to another ethnic war once there is enough power for the Tamil rebels? Unless the Government develops its own strengths against such rebellion to a Natural level – a good part of the Government’s resources would continue to be occupied by the ethnic issue.

The current weather problems here in Sri Lanka, due to strong rainfall are considered as part of National Disaster. But measured by the victims – the same level physical pain is enhanced when the punishment happens in the name of crime committed. Watching the current scenes I was taken back mentally to the times when Tamils had to run away from their homes – majority due to no fault of theirs. The only reasonable cause would be that they did not correct their own by using National and International laws. But that needs to happen at the level of leaders and not judged at individual level. Hence the need for war-crimes inquiry – not to punish but to develop global heritage by Sri Lankans. How many Sinhalese who are now helping the flood victims - came forward to help those who suffered during those times? Many Tamil professionals including doctors went through similar pain / agony to sit their exams. How many Sinhalese participated in that pain and agony – while their families carried anxiety until their loved ones reached their place of study? I worked in Batticaloa – after the 2004 Tsunami. The President – then Madam Kumaratunga – asked me during my presentation as to whether I was from Batticaloa? I said words to the effect ‘no I am of  Jaffna origin’.  Nature does not discriminate due to external reasons. If we happen to be in that area we are all affected. If we carry others in our minds – then they are our world.

Picking the age factor as the selection criterion for Amnesty may lead to those prisoners feeling alienated and neglected in their old-age. It also has the effect of age based discrimination which is unlawful  as per principles underpinning global governance. Buddha being Universal – would not have granted Amnesty on that basis. Buddha would grant Amnesty/Refuge  to all those who are true to themselves and therefore live through their souls. No human law/rule  has the authority to override that line of Authority by using the power to grant Amnesty.. 

Gajalakshmi Paramasivam – 20 May    2016

http://austms.blogspot.com.au/

The ‘Only’ Syndrome

We have/had the ‘White Only’ syndrome in Australia. We have/had the ‘Sinhala Only’ syndrome in Sri Lanka. We have/had the ‘Tamil Eelam Only’ claim in Northern Sri Lanka. Recently I realized that we have also the ‘Legal Only’ syndrome in the Judiciary. Is this a problem or an opportunity? When the law clearly states that it is ‘only’,  then it is an opportunity to those within the ‘only’ group. When the law is silent then the advantage is to those who have majority power at that time at that place. This could even be ‘outsiders/opposition’ to the ‘only’ group – for example – ‘Sinhala Only’ when it was no longer the law, became an opportunity to the Tamil Tigers who became its ‘Other side’ and claimed ‘Tamil Eelam Only’. Towards this they claimed ‘Separation’ – as Pakistan did.

Whether we as individuals like it or not, whether we approve or not, such separations do happen. The Common example I am highly conscious of now, is the Judicial system. In Australia where my active participation in the Judicial system began, Judges usually were driven by the stronger legal power in the court which is often  not the stronger legal mind in court.  Below is an extract from my Naan Australian book which includes publication of this discovery:

‘After Justice Hughes  decided to judge against  me in the District Court in matter 4054/04 on 11 July 2006 (my cousin Krishna’s birthday. My cousin was killed by the Tamil Tigers in the Tiger Capital of Vanni which was Krishna’s home as a farmer) Justice Hughes and Barrister Hodgson registered the following in the Public records:

Hodgson: Your Honour said dismiss the notice of motion, I think it should be dismiss the proceedings.

(The State of New South Wales applied for a dismissal of my compensation claim through a notice of motion and if the notice of motion was dismissed then my claim ought to have gone to trial. On the basis of  the real value of the matter it ought to have gone to trail and this is what was being mouthed by the Judge’s subconscious mind because the judge as a man past his retirement age, was merely occupying the seat and was not strongly committed either way)

Justice Hughes: Well I should have said – I make orders in favour of the notice of motion brought by the applicant to the notice of motion and I strike out the notice of motion pursuant to s 13.4—

Hodgson: Sorry, your Honour again there are – your Honour said strike out the notice of motion.

Justice Hughes: Strike out the further amended statement of claim on 9 May 2006, pursuant to part 13 rule 13.4 Now was there another order you wanted?

(So, Hodgson only had to ask and it shall be given and Hodgson did ask. It was as if he was drafting the orders and Justice Hughes was merely signing them)

Hodgson: Yes, that the proceedings be dismissed pursuant to part 13 rule 13.4

Justice Hughes: I’ve done that, yes.

Hodgson: And I seek an order for costs of the proceeding as well as of the further amended notice of motion and I seek to hand up an offer of compromise which bears the date of 13 February 2006, together with a covering letter to the plaintiff of the same date. The plaintiff has those. I seek an order that the costs be on the indemnity basis from the day on which the offer was made.

(The offer had no genuine substance to it but was for each party to pay their own costs and for me to withdraw the application. In other words that offer was to register Hodgson’s claim for indemnity costs. This tactic has been used in the current matter before the Federal Magistrates Court also – by the Crown Solicitor offering me $10,000 to withdraw my case. The ‘offer’ dated 22 August 2007,  stated ‘If you agree to execute the attached deed of release and to a dismissal of your complaint my client in exchange will (1) Pay you $10,000 and (2) Provide you with a letter from the Police stating “The NSW Police regret and are sorry that you consider that you were subjected to racial discrimination and hurt and humiliation when you were arrested and chargted on the following dates – 15/9/2003; 10/11/2003; 22/10/2004; 29/10/2004. Ms Barbaro stated also ‘my client does not concede that the police have discriminated against you’. I wrote back ‘If your client genuinely believes that it has NOT unlawfully discriminated against me, it is unlawful of your client to offer me any compensation – by of money or status. It is unlawful, as per fundamentals of Accounting to pay without ‘consideration’. It is in breach of Section 12 of the Public Finance & Audit Act by which your client as well as you are governed.’ I did not know about this indemnity tactic back in July 2006. But Natural Justice did protect me.  I wrote also ‘Ms Barbaro, your client claimed costs in relation to Common Law claims and estimated costs in relation to Equal Opportunity / Unlawful Discrimination currently before the Court. Those costs are in the ratio of 17:4, indicating the status of Equal Opportunity in relation to Human Rights. Your offer to me is about half the estimated costs in this Equal Opportunity Court, for your client. In summary, your client is claiming double my status in an Equal Opportunity Court and 9 times my status in Human Rights Court. If you truly believe that they are right and I am not of a higher status than your client in this court, then my standards are different to yours and we are not bound by Common Higher Goals / Value. To my mind, the claim of 6.8 million dollars is genuine. If you client(the State of NSW)  pays me compensation, your client gets shared ownership in my investment in Equal Opportunity which is also investment in Anti Terrorism. Had we actively practiced Anti Discrimination laws we would not be anxious of Terrorism.  Ms Barbaro, you are a young female. What have you done to uphold elimination of gender based discrimination in your workplace which is also the workplace of the Police? Women Police Offices have publicly complained of unlawful discrimination. The more you cover up blind subjective discrimination the more terrorism you promote. Fears of terrorism are also terrorism through effects. I am a female and I seem very ethnic. If you shared your female status with me you would appreciate for yourself how much more courage I would have needed to uphold my Truth in the face of all this intimidation. I am doing what you and other Australian females have failed to do. I am doing so through deep trauma – for each time I recall my loss I do feel traumatized. You provoked it in many ways through your application for summary dismissal and requirement to pay costs in advance. If you lived with me without any other distraction you would appreciate my pain much more than you do now. Ms Barbaro, if I were after money, I would have continued in my Senior Accountant’s position with UNSW Medical Faculty and possibly continued to work for Professor Bruce Dowton who did value my work highly. I would then have earned at least a million dollars from then to now. I ‘paid’ / ‘forewent’ all that to prevent Terrorism in Australia. My court records would confirm that I shared this Anti Terrorism wisdom with Mr. Howard and his government in 1999 – two and a half years before 9/11 and its consequences. Likewise, with the UNSW Vice Chancellor. I do believe that even though I was ignored and ‘dismissed’ my committed work has minimized the damage for Australians. If I accept your offer, I would throw away my own work and it could easily be owned by rebels fighting for self-determination – as happened in Sri Lanka. Whether we are good or bad, our genuine work automatically produces costs and benefits; problems and opportunities. I would rather continue to keep my ownership as Australian than let go irresponsibly – knowing the strong possibility of it being hijacked by others less ‘Australian’ than myself. The more pain I endure to keep our weaknesses ‘inside’ but not suppressed but as visible parts of our system – being balanced by the strength of my work – the more AUSTRALIAN I feel. I urge you to educate your client to become self-balancing.’  )

Judge Hughes: What do you want to say about costs Ms Paramasivam. What do you want to say about costs?

I said ‘I have nothing to say’.

Justice Hughes: Nothing to say? Well say what you were going to say before, that you did your best.

I said ‘I did your Honour’

Justice Hughes: In that case I won’t order indemnity costs. It is sufficient the costs should be paid on the usual basis that the person was after all, self-represented despite her receiving advice from Blake Dawson Waldron to discontinue her claim. She nevertheless went ahead with it. I do not think it is appropriate and it would seem to be punishing the self represented plaintiff too much if I ordered indemnity costs. True it is that the costs of this action must have cost the State a lot of money with all the pleadings and the court times and everything else that’s been going on. Nevertheless, I order that costs be on the usual basis.

The costs subsequently claimed by the Crown Solicitor’s office appeared to be indemnity costs. But the way the system goes – no one seemed to care.

Now I appreciate more and more the value of Lord Krishna’s message – to focus on our Duty rather than on the outcomes. There needs to be a Position for there to be Duty. There needs to be a Structure for there to be a Position. Hence, when we do our Duty – we become part of the System that is the Source of that Duty.

In the above example, Lawyer Hodgson for the Government and therefore the State – was the system that Judge Hughes became part of.  By sticking to my interpretation of the Law – I became part of the official system – as it ought to have existed and not as it existed due to lesser legal minds.

Recently, I went through disappointment when our own lawyer failed to include my points in submitting our arguments in a Testamentary Proceeding. My arguments were based on my own interpretation of the applicable laws. The base as usual was my real life  experience. The young lawyer, would want to ‘win’ as per his understanding of how the legal system worked in Jaffna. Submitting my points may have been difficult if according to him, the system did not have the resources to hear a matter at the escalated level. The issue was about whether a Court order was final judgment or interlocutory order.  When I sought to Appeal I was informed by our lawyer in the primary court – that the matter was interlocutory. I did not question it but given that our lawyer failed to even get us a copy of the judgment within a week – I set out to work on the Leave to Appeal Application myself – using the Australian format in the confidence that in Australian Courts – my Administrative work was well accepted.  The papers were filed within the stated time  of 14 days – even though we received the Order was pronounced on 26 February 2015 but a copy was handed over to our Attorney at law – only on 12 March 2015. The Application for Leave to Appeal was filed through our General Attorney on 16 March 2015 – effectively giving us 4 working days. It was a marathon effort with me in Australia and our General Attorney with least exposure to the Court system being in Vaddukoddai. But we did it – thanks to the good Administrators within the Court system – which included the Duty Judge. I feel that victory even now. Other wins and losses as declared by those who are ‘outsiders’ to that system as it exists in reality – are truly secondary.

The Common problem as I identify here in Sri Lanka is this ‘Only’ system. Those who make it ‘law’ confirm their own inability to manage wider cultures. If the legal fraternity is one culture – the executive government is of another. Like religions they are different in terms of the laws and principles used at their highest levels. In terms of  Courts – the executive is replaced by the citizen who must remain independent of the legal profession to produce outcomes that would strengthen society as a whole. Unpracticed theory / law – used by the legal fraternity must not be indiscriminately mixed with Experience based facts presented by the citizen. The point at which the two – investment in law and the real experience by the citizen outside the influence of the Judiciary / Legal Profession – is the Natural point of generation of  higher powers through which that society is governed. Like man and woman the two are Equal parents of those higher values.

 The real judgments are the express outcomes of these values. I found that in Sri Lanka, where lay litigants are not valued in the Court rooms – the legal profession hijacks the matter and that there is little space for the citizen to bring her/his experience as is to the Courts. One of the areas through which I highlighted this was as the Affidavit Evidence (us being the 5^th and 6^th Respondents):

[It is submitted that having taken over the inquiry through Section 532 of the Civil Procedure Code,  the Court had the Duty of Care to summon all Respondents to Court to determine the Rights of all Heirs and also to determine the issue of Administration. Until such process is exhausted the inquiry process does not get completed and any order prior to such completion becomes Interlocutory in Nature. The Rights of both opposing parties need to be facilitated to be on Equal Footing – for the picture of the issues between the parties to be complete at that level

The  Affidavit of the 5^th  Respondent who expressly Objected, was set aside, in breach of the above principle -  even though,  on the face of it, it failed to confirm the deficiencies claimed by the Petitioners.

Section 438 of the Civil  Procedure Code provides as follows:

438. Every affidavit shall be entitled as in the court and action in which it is to be used, and shall be signed by the declarant in the presence of the court, Justice of the Peace, or Commissioner before whom it is sworn or affirmed.

It is apparent on the face of the documents (Pages 168 to 173  of the Brief)  that the Petitioners applied their standards which are facilitated by Section 439 as follows:

‘439. In the event of the declarant being a blind or illiterate person, or not able to understand writing in the language of the court, the affidavit shall at the same time be read over or interpreted to him in his own language, and the jurist shall express that it was read over or interpreted to him in the presence of the court. Justice of the Peace, or Commissioner, and that he appeared to understand the contents; and also that he made his mark or wrote his signature in the presence of the court, Justice of the Peace, or Commissioner. And when a mark is made instead of a signature, the person who writes the marksman's name against the mark shall also sign his name and address in the presence of the court. Justice of the Peace, or Commissioner.’

The above mentioned  Affidavit  by the Petitioners under Section 439, is almost identical to the Application / Petition itself – at pages 158 to 161 of the Brief.  This confirms that the Affidavit was prepared for the Petitioners by their Legal Attorney. Hence the question arises as to whether the matter is to be constructed at the level of the Petitioners’ investment in law or at the level of the 5^th Respondent’s investment – which is close to that of the Deceased? The completion of the ‘issues between the parties’ needs to happen at the higher level of application of the law – which it is submitted is through Section 438 for the 5^th Respondent – the closest sibling representing the investment in Higher Education by the Deceased. This is in conformity with the principles underpinning Thesawalamai which has been claimed to be applicable to all parties to this matter. It is submitted that this upholds the Spirit of the Court which ordered that husband of the 1^st Petitioner be included as Petitioner.

(s) It is submitted that this Testamentary case is primarily about the Rights of the Deceased to show the  value of his life to the society that he was a part of.  This value is best shown through the structure that he developed during his lifetime. The division of status and property reflects how the heirs carry this forward to benefit current society and the younger generations. ]

The Confirmation that the Legal fraternity ‘took-over’ the matter was highlighted  through the submission ‘The above mentioned  Affidavit  by the Petitioners under Section 439, is almost identical to the Application / Petition itself’  . But our lawyer who also would have done likewise, left this out of his submissions. Unless the Judge himself were looking to improve the legal system – it is highly likely that the Judge also would have left the above submission out of his picture of the matter.

When the Judicial system fails to deliver Justice Independent of the Legal Profession – the outcomes often result in weakening of law and order in that part of the society that takes only the ‘outcomes’ home. Those who work the system from their official position – however small that position may be – become part of the higher system – as owners. In Prescriptive rights – the ownership of the belief based occupier – is determined on the basis of two elements – that the possession needs to be adverse to and be independent of the legal owner. The Experience based litigant in Court is entitled to ownership where her/his practice of ownership rights – have been adverse to and independent of the legal profession.

Hence, in terms of ‘Eelam Only’ / ‘Sinhala Only’ / ‘White Only’ claims – they need to be adverse to the wider official laws as practiced by the global community that we are officially a part of and they need to be independent of  the legal owners who are ALL citizens of that country. None of the above claims qualified – as per the latter criterion of independence. Those who find ‘fault’ with the other side are also confirming that they need their ‘other side’ to be complete and independent. To the extent the Tamil politicians find fault with Sinhala regimes – the Tamil Community is disqualified from claiming belief based ownership of areas where they are in majority. Belief is Absolute and not Relative. Hence no ‘Eelam only’ but ‘Eelam also’. Eelam only does not have the approval of Natural Justice due to its lack of independence of the official system.  As a lay litigant – to me the place that confirms the value of this Absolute Power would naturally be driven by good order. All others who think they are the top-leaders due to ‘separation’ but continue to use the old order of thought – end up confusing themselves and the societies they are a part of.  Such minds naturally infect those who ‘leave the process to them’ but take only the outcomes home.

Those who are clever and ‘produce’ wins to take them ‘home’ without sharing with all those who fought and sacrificed for their own independence – disqualify themselves from governance positions.  It’s that sharing that makes us eligible to hold governing positions. 

 POINTS OF SUBMISSION BY GAJALAKSHMI PARAMASIVAM

IN THE CIVIL APPELLATE HIGH COURT OF JAFFNA,

DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

Application for Leave to Appeal - In the matter of Intestate Estate of the  late SUBRAMANIAM YOGANATHAN of

Kallady Lane, Vaddukoddai South West Vaddukkodai - Case No. T/55/11 Heard in the District Court of Mallakam

Subramaniam Paramasivam

          Gajalakshmi Paramasivam

Both of 906/56, Carr Street

Coogee; NSW 2034; Australia

1^st& 2^nd Appellants

Testamentary Jurisdiction   - District  Court

of Mallakam Case No. T/55/11                                                                                  ----vs------                                                                                           

1.       SellathuraiMahadevan

2.       SakthidevyMahadevan

Both of Kallady Lane

Vaddukoddai South West

Vaddukkodai

1^st and 2^nd Respondents

                                                                                                            3.SubramaniamTharmalingam                                                                                                                                                  4.Anandaletchumy Tharmalingam

Both of 25/1A, Subodharma Road, Dehiwala

3^rd& 4^th  Respondents

5.TharmaratnamSabanathan

6.SaraswathySabanathan

Both of 37, Old Field Road

Seven Hills; NSW 2147; Australia

5^th& 6^th  Respondents

Points for Submission due by 18 May 2016

1.      A. The first Objection raised by the Appeal Respondents was that the Leave to Appeal Application was out of time.

B. (i) The original Application for  Leave to Appeal was filed within the prescribed period of 14 days under the Authority of Section 754 (2) of the Civil Procedure Code which states as follows:

“Any person who shall be dissatisfied  with any order made by any original court in the course of any civil action, proceeding, or matter to which he is or seeks to be a party may prefer an appeal to the Court of Appeal against such order for the correction of any error in fact or in law with the leave of the Court of Appeal first had and obtained.”

(ii) As stated on page 7 of that Application :

‘ the Order was   delivered by his Honour  Justice  Gajanithibalan  in the Testamentary Proceedings bearing  No. T/55/11  in the District Court of Mallakam,  on Thursday 26 February 2015.’

The Application was filed on 16 March 2015 which is within the 14 day period. Copies were duly forwarded to the Respondents.

(iii) When the Application for Leave to Appeal came before the Court on 06 May 2015, the Court required amendments to be made to the format of the Application and this was NOT objected to by the Appeal Respondents, who were present in Court.

(iv) The Application was duly amended and filed within the time allowed by the Court

(v) It is submitted that the Claim of the Counsel for the Appeal Respondents in Court on 26 April 2016 – that the ‘Application wasAbandoned’ has the effect of misleading the Court. The claim made on that basis - that the Amended Applicationwas  ‘out of time’ is without the support of law.

2.      A. The second point of Objection was that the decision by the primary Court was a final judgment and was not an interlocutory order.

B.(i) There were further discussions on this point – and the Counsel for the Appeal Respondents made reference to the Rights of the parties being an issue.

Rights Base

(ii) There are two aspects to this matter from the angle of the 5^th& 6^th Respondents:

(a)    That Administration is required

(b)   The share of the Estate that the siblings are entitled to. The Petitioners have claimed Equal share whereas the 5^th& 6^th Respondents claim that only the two surviving Brothers are entitled to half share each.

The Appellants claim that the Decision by the Court is Interlocutory  due to the inquiry stagnating at the level the Petitioners perceive/d their entitlement rather than at the level – that represents the Rights of the Deceased, carried forward by All his Heirs.  It is submitted that the picture presented to Court is complete only when both sides present at the same level – i.e. using the same set of laws and principles applied on Equal footing to present ‘facts’ and ‘beliefs’the parties consider to be relevant. Hence the Rights based approach to determining whether the Order was Interlocutory or Final Judgment.  It is submitted that a final judgment needs a completed picture of relevant facts and beliefs presented to Court and the Appellants claim that this is NOT the case with this Decision due to the following reasons:

On page 4 of the Application filed on 16 March 2015, the Appellants state as follows:

‘Errors in  Law -  If the Proceedings  were driven by Cause of the action – then the following approach seems the better fit:“It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not it is then, in my opinion, an interlocutory order.”   - Lord Alverstone, C.J cited  by Hon Justice SaleemMarsoof, P.C., J.  inStorerDuraisamy Yogendra  &BalasubramaniamThavabalan  Vs. VelupillaiTharmaratnam’

In S. RajendranChettiar& Others Vs S. Narayanan ChettiarS.C.Appeal No. 101^A/ 2009,  escalated from  the  District Court case No. 428/T in the District Court of Colombo in relation to the  Trustees of the Hindu Temple known as “Sri Kathirvelayuthan Swami Kovil”,   Dr.Shirani A. Bandaranayake, J includes in her Honor’s reasoning the following:

[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 or 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 following Reasoning is presented including in the consciousness of the above

(iii) The Reasons why the  Appellants consider that their Rights were denied by the Court

(a) The 1^st Appellant ( 5^th Respondent in the primary case), being the brother of the Deceased, filed an Affidavit in support of his Objection to the Petition.  The 5^th& 6^th Respondents sought  Administrative rights to the Intestate Estate. They claimed also that the two sisters who were dowriedincluding by the Deceased were not entitled to share in the wealth of brothers as per section 7 of Thesawalamai Regulation. This aspect was inquired into at length , by the primary Court.Questions 6 & 7 listed on page 40 of the brief refers.

(b) The questions raised by the Court on 06 September 2012, in relation to the Objection and supporting Affidavit filed by the 5^th& 6^th Respondents are listed on pages 39 & 40 of the brief.

(c) The Petitioners/1^st& 2^nd Appeal Respondents, claimed that the said Affidavit (page 198 of the Brief) was not signed in the presence of Attorney at law or Justice of the Peace and also that the details of such an official were not evidenced to have been made at the same time the 5^th Respondent signed the Affidavit.  (Pages 44, 45 of the Brief)

(d) Accordingly, the Petitioners moved to have the Objection and the supporting Affidavit of the 5^th Respondent, set aside in limine

(e) In his Order dated 8 November 2012, his honor confirms that the Counsel for the 5^th& 6^th Respondents/Appellants had requested that approval be granted for the filing of an Affidavit to suit the expectations of the Court in relation to format.(ref page 110 of the Brief)

(f) His Honor through Order dated 08 November 2012 (Page 106 of the Brief) declined

(g) In his reasons for Order dated 28 February 2013, his honor confirms (ref page 114 of the Brief) that the Petitioners failed to file consent from respondents / fellow heirs.

(h) His honor stated that the decision regarding the Affidavit  would be delivered at the end of the hearing. (Page 115 of the Brief)

(i) In his decision dated 26 February 2015, his honor states that the said Affidavit was set aside through the order on  28 February 2013. (page 151 of the Brief)

(j) It is submitted that - given that this decision regarding the Affidavit was pronounced for the first time on 26 February 2015 – by its very nature – it makes the decision that includes this pronouncement a part of itself – Interlocutory.

(k) His honor himself highlights the dilemma faced  by the Court if the Order to set aside the Affidavit and therefore the Objection were pronounced at that stage of the hearing. (paragraph 3 of Page 114 of the Brief). His honor categorically mentions that the need would arise to inquire into the Rights of the 5^th and 6^th Respondents if the Objection was set aside. His honor goes on to register his conclusion that the Court recognizes the need for an inquiry.

(l) To accommodate the above, the Court invokes Section 532 of the Civil Procedure Code which states:

‘532. In all cases of application for the grant of the administration of the deceased's property, whether with or without a will, the court shall, whether a respondent is named in the petition or not, direct notice of the order nisi in the form No. 84A in the First Schedule to be advertised twice in a local newspaper before the day of final hearing, the newspaper to be selected by the court with the object that the notice of the order nisi should come to the knowledge of all persons interested in the administration of the deceased's property: Provided that the court may in its discretion direct such other mode of advertisement in lieu of such publication as to it seems sufficient.’

(m) Section 533 spells out the duty of the Court  as follows:

‘533. If on the day appointed for final hearing, or on the day to which it may have been duly adjourned the respondent or any person upon whom the order nisi has been directed to be served, or any person then appearing to be interested in the administration of the deceased's property, satisfies the court that there are grounds of objection to the application, such as ought to be tried on viva voice evidence, then the court shall frame the issues which appear to arise between the parties, and shall direct them to be tried on a day to be then appointed for the purpose under section 386’

Section 386 states:

‘386. When the respondent's evidence has been taken, it shall be competent to the court, on the request of the petitioner, to adjourn the matter to enable the petitioner to adduce additional evidence; or, if it thinks necessary, it may frame issues of fact between the petitioner and respondent, and adjourn the matter for the trial of these issues by oral testimony. And on the day to which the matter is so adjourned, the additional evidence shall be adduced, and the issues tried in conformity with, as nearly as may be, the rules hereinbefore prescribed for the taking of evidence at the trial of a regular action.’

(n)  Despite the above provision for additional evidence to be adduced by the Petitioners – the Petitioners did not produce any such evidence in relation to Administration of the Estate. The 4^th Respondent Mrs.SaraswathySabanathan was facilitated to give evidence to confirm as to whether her share of the family wealth was  dowry or donation. It is highlighted that Section 525 provides as follows:

‘If the petitioner has no reason to suppose that his application will be opposed by any person, he may file with his petition an affidavit to that effect, and may omit to name any person in his petition as respondent.’

No such Affidavit  was filed in Court .

Section 530 provides as follows:

(1)   When any person shall die without making a will or where the will cannot be found, every application for grant of administration of his property may be made to the District Court of the district within which the applicant resides, or within which the deceased resided at the time of his death or within which any land belonging to the deceased's estate is situate. Every such application shall be made on petition by way of summary procedure, which petition shall set out in the numbered paragraphs prescribed by section 524, the relevant facts of the absence of the will, the death of the deceased, and the heirs of the deceased to the best of the petitioner's knowledge; the petition shall also show the character in which the petitioner claims and the facts which justify his doing so. The application shall also be supported by sufficient evidence, to afford prima facie proof of the material allegations in the petition, and shall name the next of kin of the deceased as respondents.

(2)   (a) The petitioner shall tender with the petition

(i)             the declaration of property referred to in section 30 of the Estate Duty Ordinance or in Section 24 of the Estate Duty Act, as the case may be, in triplicate for transmission by court to the Commissioner-General of Inland Revenue.

(ii)            draft order nisi;

(iii)           the requisite stamps for the order nisi and service thereof;

(iv)             draft notice of order nisi in the form No. 84A in the First Schedule, and (a) proof of payment of the estimated charges to cover the cost of advertising the notice of order nisi in a local newspaper as hereinafter provided.

(b) The petitioner may also tender with the petition the consent in writing of such respondents as consent to his application

( o) The 4^th Respondent was not included as Petitioner and hence on the face of the documents before the Court – the 4^th Respondent is an Opposing Party to the Petitioners. This distinction in the position allocated to respective participants is significant in framing the issues arising between  the parties as per Section 533 of the Civil Procedure Code. The issue when divided through the Common Measure / Law – needs to show Equal Rights as the Petitioners, to the Respondents in Common. Section 525 facilitates the leaving out of any person as Respondent. If indeed the 4^th Respondent was believed  to be supportive of the Petitioners – that sister ought to have been included as Petitioner or that sister ought to have given her consent in writing to the Petitioners. The way it stands – the 4^th Respondent whose husband is listed as a Creditor (page 182 of the Brief) - has dual position – (i) by Right to participate in the Administration and her silence in terms of consent to the picture drawn by the Petitioners – the 4^th Respondent confirms her position as Respondent but  (ii) in terms of the share  of the Estate – the 4^th Respondent – by agreeing with the picture drawn by her sister and her husband as Petitioners – becomes part of the Petitioning Group.

(p) The Counsel for the Appeal Respondents stated in Court that he represented all Respondents. If Due Process had been followed – the question needs to be asked as to why the other  Respondents failed to participate in the primary process – starting with giving their consent in writing as facilitated by Section 525? The same Counsel representing both – the Petitioners and the other Respondents in the Appeal confirms the position that none of the Respondents other than the 5^th& 6^th Respondents / Appellants is interested in participating in the Administration of the Estate. It is significant to note that the 4^th Respondent confirmed that the 1^st Respondent and she were part of an intermarriage arrangement. (Page 124 of the Brief) – thereby indicating greater possibility of collusion which would alienate the 5^th and 6^th Respondents.

(q) It is submitted that having taken over the inquiry through Section 532 of the Civil Procedure Code,  the Court had the Duty of Care to summon all Respondents to Court to determine the Rights of all Heirs and also to determine the issue of Administration. Until such process is exhausted the inquiry process does not get completed and any order prior to such completion becomes Interlocutory in Nature. The Rights of both opposing parties need to be facilitated to be on Equal Footing – for the picture of the issues between the parties to be complete at that level.  

(r) The  Affidavitof the 5^th  Respondent who expressly Objected, was set aside, in breach of the above principle -  even though,  on the face of it, it failed to confirm the deficiencies claimed by the Petitioners.

Section 438 of the Civil  Procedure Code provides as follows:

438. Every affidavit shall be entitled as in the court and action in which it is to be used, and shall be signed by the declarant in the presence of the court, Justice of the Peace, or Commissioner before whom it is sworn or affirmed.

It is apparent on the face of the documents(Pages 168 to173  of the Brief) that the Petitioners applied their standards which are facilitated by Section 439 as follows:

‘439. In the event of the declarant being a blind or illiterate person, or not able to understand writing in the language of the court, the affidavit shall at the same time be read over or interpreted to him in his own language, and the jurist shall express that it was read over or interpreted to him in the presence of the court. Justice of the Peace, or Commissioner, and that he appeared to understand the contents; and also that he made his mark or wrote his signature in the presence of the court, Justice of the Peace, or Commissioner. And when a mark is made instead of a signature, the person who writes the marksman's name against the mark shall also sign his name and address in the presence of the court. Justice of the Peace, or Commissioner.’

The above mentioned  Affidavit by the Petitioners under Section 439, is almost identical to the Application / Petition itself – at pages 158 to 161 of the Brief.  This confirms that the Affidavit was prepared for the Petitioners by their Legal Attorney. Hence the question arises as to whether the matter is to be constructed at the level of the Petitioners’ investment in law or at the level of the 5^th Respondent’s investment – which is close to that of the Deceased? The completion of the ‘issues between the parties’ needs to happen at the higher level of application of the law – which it is submitted is through Section 438 for the 5^th Respondent – the closest sibling representing the investment in Higher Education by the Deceased. This is in conformity with the principles underpinning Thesawalamai which has been claimed to be applicable to all parties to this matter. It is submitted that this upholds the Spirit of the Court which ordered that husband of the 1^st Petitioner be included as Petitioner.

(s) It is submitted that this Testamentary case is primarily about the Rights of the Deceased to show the  value of his life to the society that he was a part of.  This value is best shown through the structure that he developed during his lifetime. The division of status and property reflects how the heirs carry this forward to benefit current society and the younger generations.

(t) The documents before the Court confirm that the Petitioners lived in the same house as the Deceased and therefore had access to movable properties including cash and documents relating to immovable properties and bank accounts held by the Deceased. 

(t) The 4^th Respondent – a female without demonstrated commitment to participate in the Sri Lankan legal process – wrote to Barclays Bank on behalf  of all heirs including the Brothers of the Deceased.

(u) Court Records on Pages 33 & 34 confirm that the Court brought the Petitioner – the sister of the Deceased under Thesawalamaistructure – requiring that the Husband of the Petitioner also be included as a party.  This confirms the preference allocated to Males to administer and manage, over females under Thesawalamai structure.

(v )On the face of the Documents before the Court – the Deceased, the 1^st Respondent and the 5^th Respondents are males and all other heirsas stated in the documents  are females.

(w) The Court records confirm that the 4^th Respondent wrote to Barlclays Wealth on 21 October 2010. In her evidence, the 4^th Respondent stated that ‘she had attached those letters to the Petition’. (Page 122 of the Brief). Yet, as per Court records – the 4^th Respondent is NOT a Petitioner but a Respondent who did not demonstrate care to follow Due Process of the Court to register her consent in writing. At the minimum level, this demonstrates her lack of respect for official processes and the tendency to override them through her own personal thought – for example that she took care of all her siblings including the Deceased after the death of her parent. (Page 122 of the Brief). The 4^th Respondent took it upon herself to represent all her siblings when wring to Barclays Wealth but failed to demonstrate such commitment to the Mallakam District Court. This is in conflict with the ruling of the Court that the husband of the 1^st Petitioner also be included as Petitioner due to Thesawalamai principles.

(w) Out of the two male heirs – the 1^st Respondent has thus far chosen to remain silent

(x) The 5^th Respondent has expressly demonstrated his commitment and capability by making an independent declaration as a non-legal lay person – through his Affidavit dated 30 December 2012 (pages 197 & 198 of the Brief) which satisfies the requirements of Section 438 of the Civil Procedure Code. In addition, as stated in Court by the Counsel for the Appellants – the 6^th Respondent is a Chartered Accountant. Her support for her husband and her capability to understand the language of Law is evidenced through her continued participation in Court Process (Page 130 & 131 of the Brief)

(y) The Court-records confirm also that the Court did use the above mentioned Affidavit by the 5^th Respondent, which fits Section 438,  to discipline the Petitioners’ Attorney at law (Page 38 of the Brief). To then set is aside as invalid is to deny Equal Footing as the Judge, to the 5^th Respondent. It is submitted that the setting aside of the Affidavit after it was used by the Court for its own Administrative  purposes  is to deny litigants - Equal Opportunity as the Legal Fraternity,  to participate in Court Processes.

(z) Relatively speaking – the Petitioners’ Affidavit fits the category facilitated by Section 439 of the Civil Procedure Code – confirming the lesser literacy of the Petitioners relative to the 5^th& 6^th Respondents.

(aa) It is submitted that giving preference to that Affidavit over the one that fits Section 438 would be appropriate if the Deceased was a female and was not able to understand the language of the Court / the Law and therefore confirms a structure where external legal help is needed to follow the path of Law.

(ab) The Deceased worked  as a Chemist in Sri Lanka as well as Overseas and earned the right for the value of his work related wealth - to be represented by members of the family with similar attributes - rather than home-makers whose Affidavit qualified under Section 439 of the Civil Procedure Code.

(ac )Both sisters of the Deceased confirm that their father distributed his wealth prior to his death and prior to their marriages. (Pages 118 & 124 of the Brief). The Court has the responsibility therefore to inquire as to whether any part of that wealth went to the Deceased from the father and therefore qualifies as Muthusum which needs to be separated from his acquired wealth to show heritage value included in that Estate.

(ad)It is submitted that - combined with the refusal by  the Court to approve the filing of the  Affidavit in a format acceptable to the Court, setting aside the Affidavit amounts to denial of fundamental Right of the Brother (5^th Respondent) to Object to the Petition, on Equal footing as the other heirs of the Deceased – be it to support  or to oppose.

(ae) On 31 May 2011, the Court highlighted  similar problems in the Affidavit of the Petitioners and ordered that they be rectified and the Affidavit be refiled.  The denial  of such an Opportunity to the 5^th Respondent has the effect of the Court disadvantaging the 5^th& 6^th Respondents of their rights on Equal footing as the Petitioners. (Page 32 of the Brief)

(af) Due to Rights of  Heirs not being addressed specifically in the processes leading to the Decision dated 26 February 2015, it is submitted that the Order  declared on 26 February 2015 amounts to an Interlocutory Order and not a final Judgment.

B (iv) Section 198 of the Civil Procedure Code states as follows:

[198. When the action is for an account of any property and for its due administration under the decree of the court, the court, before making the final decree between the parties, shall order such accounts and inquiries to be taken and made, and give such other directions, as it thinks fit.]

It is submitted that the creditors  listed in the Petition are confirmation that  Administration is essential.  The Court by virtue of Section 198 of the Civil Procedure Code  is vested with the duty to order that those accounts be inquired into.  It is submitted that the final decree cannot be made before this process is satisfied. Hence the Order made is confirmed to be Interlocutory.

Part 2

B (iv) – Inquiry from a different angle:

(a)    On page 5 of the Application filed on 16 March 2015, the Appellants state as follows:

Errors  in  Fact–

‘If the Proceedings  were driven by Effects of the action – then the following approach seems the better fit:

“The question must depend on what would be the result of the decision of the Divisional Court, assuming it to be given in favour of either of the parties. If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in  dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory. ” Lord Esher, M.R.cited  by Hon Justice SaleemMarsoof, P.C., J.  inStorerDuraisamy Yogendra  &BalasubramaniamThavabalan  Vs. VelupillaiTharmaratnam’

(b)   In S. RajendranChettiar& Others Vs S. Narayanan ChettiarS.C.Appeal No. 101^A / 2009,  escalated from  the  District Court case No. 428/T in the District Court of Colombo in relation to the  Trustees of the Hindu Temple known as “Sri Kathirvelayuthan Swami Kovil”,   Dr.Shirani A. Bandaranayake, J includes in her Honor’s reasoning the following:

[Therefore to ascertain the nature of the decision made by a civil Court as to whether it is final or not, in keeping with the provisions of section 754(5) of the Civil Procedure Code, it would be necessary to follow the test defined by Lord Esher MR in Standared Discount Co. v La Grange (supra) and as stated in Salaman v Warner (supra) which reads as follows:

“The question must depend on what would be the result of the decision of the Divisional Court, assuming it to be given in favour of either of the parties. If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory.”

 In Salaman v Warner (supra), Fry, L.J., also had expressed his views regarding an appropriate interpretation that had to be given to final and interlocutory decisions. Considering the difficulties that had been raised regarding the correct interpretation for final and interlocutory orders, it was stated that the attention must be given to the object of the distinction drawn in 15 the rules between interlocutory and final orders on the basis of the time for appealing. Fry, L.J. had accordingly stated thus:

“I think that the true definition is this. I conceive that an order is “final” only where it is made upon an application or other proceeding which must, whether such application or other proceeding fail or succeed, determine the action. Conversely I think that an order is “interlocutory” where it cannot be affirmed that in either event the action will be determined.”

 Considering all the decisions referred to above, the aforesaid statement clearly has expressed the true meaning that could be given to a judgment and an order in terms of section 754(5) of the Civil Procedure Code.

 The order made by the Additional District Judge on 14.05.2008, was in terms of section 46(2) of the Civil Procedure Code and it is not disputed that the rights of the parties were not considered by the District Court. In such circumstances it would not be probable to state that the said order made by the District Court had finally settled the litigation between the appellants and the plaintiff.

Considering the circumstances of the appeals it is abundantly clear that at the time the said order was made by the District Court, the litigation among the parties had just begun as the plaintiff as a Trustee of the ‘Puthiya Sri Kathiravelayuthan Swami Kovil’ and its temporalities had instituted action before the District Court of Colombo, seeking inter alia,

1.       the appointment of Receiver under section 671 of the Civil Procedure Code for the preservation and maintenance of the Trust property;

2.       the removal of the 2nd to 4th appellants and the 1st respondent as trustees of the Trust; 16

3.       3. the 2nd to 4th appellants and the 1st respondent to account for Rs. 34,000,000/- of Trust money which had been illegally and immorally appropriated by the 2nd to 4th appellants and the 1st respondent for their personal use.

………………………………

………………………………….

Considering all the abovementioned it cannot be said that the decision given by the District Court could have finally disposed the matter in litigation. In Ranjit v Kusumawathi (supra), Dheeraratne, J. after considering several decisions referred to earlier and the facts of that appeal had stated thus:

“The order appealed from is an order made against the appellant at the first hurdle. Can one say that the order made on the application of the 4th defendant is one such that whichever way the order was given, it would have finally determined the litigation? Far from that, even if the order was given in favour of the appellant, he has to face the second hurdle, namely the trial to vindicate his claim.”

Considering the decision given by Dheeraratne, J., in Ranjit v Kusumawathi (supra) it is abundantly clear that the order dated 14.05.2008 is not a final order having the effect of a judgment within the meaning of sub-sections 754(1) and 754(5) of the Civil Procedure Code, but is only an interlocutory order. For the reasons aforesaid, both appeals (S.C. (Appeal) No. 101A /2009 and S.C. (Appeal) No. 101B /2009), are dismissed and the judgment of the High Court dated 21.11.2008 is affirmed.]

( c) It is submitted that the Order if given in favour of the 5^th& 6^th Respondents, would have required for the matter to proceed to complete the picture – in terms of Administration. But as it stands – the Order confirms that no further inquiry is needed into this aspect. Hence the awarding of Certificates of Heirship – on the basis of this Order would block the path of Due Process needed to settle creditors - at least one of whom is a Respondent  (Page 178 of the Brief) and whose wife wrote to Barclay’s Bank – effectively assuming the Administrator’s position.

(d )It is submitted that if the Deceased himself were to delegate authority to manage his wealth - he would have chosen the one with equal or higher skills as himself to preserve and protect his savings.  On the face of the information before the Court this is the 5^th Respondent with the support of the 6^th Respondent. The Court owes the Deceased this honor of representation reflecting his higher level participation in maintaining social order.  It is humbly submitted that this is along the same lines as Mr. Parathalingam P.C. representing the Appeal Respondents – as highlighted by his honor in Court. The parallel of Mr. Parathalingam P.C. - in the case of litigants – is the 6^th Respondent empowered by the delegated power of the 5^th Respondent. The way the lay person interprets the law is Equally important as the way the legal expert does. Hence the Experience base as highlighted by the Judges hearing the above mentioned  matterChettiar v Chettiar:

“There is a note in the Supreme Court Practice 1970 under RSC Ord. 59, r 4, from which it appears that different tests have been stated from time to time as to what is final and what is interlocutory. In Standard Discount Co. v La Grange and Salaman v Warner, Lord Esher MR said that the test was the nature of the application to the Court and not the nature of the order which the Court eventually made. But in Bozson v Altrincham Urban District Council, the Court said that the test was the nature of the order as made. Lord Alverstone C.J. said that the test is: ‘Does the judgment or order, as made, finally 12 dispose of the rights of the parties?’ Lord Alverstone C.J. was right in logic but Lord Esher MR was right in experience. Lord Esher MR’s test has always been applied in practice. For instance, an appeal from a judgment under RSC Ord. 14 (even apart from the new rule) has always been regarded as interlocutory and notice of appeal had to be lodged within 14 days. An appeal from an order striking out an action as being frivolous or vexatious, or as disclosing no reasonable cause of action, or dismissing it for want of prosecution – every such order is regarded as interlocutory: See Hunt v Allied Bakeries Ltd., so I would apply Lord Esher MR’s test to an order refusing a new trial. I look to the application for a new trial and not to the order made. If the application for a new trial were granted, it would clearly be interlocutory. So equally when it is refused, it is interlocutory. It was so held in an unreported case, Anglo-Auto Finance (Commercial) Ltd. V Robert Dick, and we should follow it today. This question of ‘final’ or ‘interlocutory’ is so uncertain, that the only thing for practitioners to do is to look up the practice books and see what has been decided on the point. Most orders have now been the subject of decision. If a new case should arise, we must do the best we can with it. There is no other way” (emphasis added).

(e)The Deductions claimed in the Petition (Page 178 of the Brief) are examples of areas requiring Administration. These have not been addressed by the Court at all.

(f )(i) IT IS SUBMITTED THAT THE ORDER AS DELIVERED HAS THE EFFECT OF COMPLETING  THE PICTURE FOR THE PETITIONERS BUT,

(ii) LEAVES UNADDRESSED THE RIGHTS OF OPPOSING RESPONDENTS WHO AS PER THEIR UNDERSTANDING OF THE LAWFUL REQUIREMENTS,  NEEDED THE MATTER TO PROCEED TO INCLUDE THEIR ‘FACTS’ TO STRUCTURE THE PICTURE THROUGH WHICH THE SAID  WEALTH WAS DEVELOPED IN THE CUSTODY OF THE DECEASED, AND

(iii) FAILED TO FACILITATE THE EXPRESSION AND INCLUSION OF THE LEGITIMATE BELIEFS NEEDED TO INHERIT THE WEALTH OF AN ELDER AT ITS HIGHEST VALUE,  PROCESSED THROUGH THE LAWS OF THE SOCIETY THAT HE WAS VERY MUCH A PART OF.

(iv)IT IS SUBMITTED THAT THE VALUE OF THE WEALTH INVOLVED IS RELATIVE TO THE STRUCTURES AND PROCESSES THROUGH WHICH IT PASSES. TREATING AN INTERLOCUTORY ORDER AS A FINAL JUDGMENT WOULD EFFECTIVELY DENY THAT HIGHER VALUE TO THE LIFE OF THE DECEASED – AS REPRESENTED BY HIS ESTATE - TO THE SOCIETY HE WAS PART OF. THE THRESHOLD NEEDS TO BE RAISED TO REPRESENT THE TRUE VALUE AS PER THE CHARACTER THAT MR. SUBRAMANIAM YOGANATHANCONFIRMED. THE CONFIRMATION THAT THE ORDER WAS INTERLOCUTORY IS THE FIRST STEP NEEDED TO ESCALATE THE VALUE OF THE MATTER TO ITS EARNED