Sunday 8 May 2016

Gajalakshmi Paramasivam – 08 May    2016

Mother Power in Sri Lankan Parliament

Today, many of us in the Western system, celebrate Mother’s Day. I write from the village of Thunaivi in Northern Sri Lanka,  where I am addressed as mother / Ammah by most – including those older than I in age. Recently, a village elder said that he respects me because of my education. Using that opportunity, I pointed out to him that unless he disciplined members of his family he did not have the right to find fault with others for the same offence. The message was that ‘just because you are older in years – you do not have the authority to find fault with them’. I urged the village elder to do his job as allocated and not to use my name to find fault with others. I was able to say this due to my status as his employer.

In Sri Lanka, where Politicians demonstrate weak discipline, as they did recently in Parliament, the need at this hour is a Mother. Mother is known as Shakthi/Energy in Hindu culture – due to her motivational force. Here in Thunaivi, I am able to identify with those who idle and waste away their opportunities to live and fulfill themselves. As I keep saying to them through our regular interactions, it is better to have a small position in a big system than a big position in a small system. This is the dilemma faced by Sri Lanka as a nation – struggling to balance between the internal forces and the external pressures. A strong mother – would naturally bring about that balance. This mother force obviously is lacking in Sri Lankan Parliament. But one does not need Parliament or an official position to be a Sri Lankan mother. All volunteer service – including within paid jobs – is Mother’s service. It’s the deeper reason why we do what we do,  that determines whether the contribution (work and/or sacrifice) is Mother’s Service or Father’s job. Those who get paid relatively more than others in the one institution for their contribution, weaken this inner Mother’s Energy. They are effectively receiving welfare payments even if officially the remuneration is classified as salary. Many politicians are guilty of this. The institutions that they are part of are therefore infected by this negative energy which like cancer -  develops without us being conscious of it. If a member of Parliament were to be elected by majority force in Thunaivi – they are more likely to get even as individuals and bypass the laws of Parliament.

The Press Trust of India  for example reports as follows through its article  ‘Torture continues in Lanka due to weaknesses in law: UN’ :

Sri Lanka continues to use torture mechanisms even after the end of the civil war due to weaknesses in law, a top UN official said here today and described the condition of detention camps and prisons in the country as "deplorable".

"Torture continues in the system due to weaknesses in law," said Juan E Mendez, the UN Special Rapporteur on Torture and other cruel, inhuman or degrading punishment.

Does Sri Lanka seek to be part of the big Global picture or does Sri Lanka seek to be small self-employed nation? Now that Sri Lankan Government has sought and accepted global resources to manage domestic problems – is it not its DUTY to become global? Each time the description of ‘Terrorism’ is used in Public by a Politician it generates the responsibility to use Global standards of thought order. The motivating factor is this Mother’s Energy – so her children would not be lesser than other children of an apparently common environment/institution.

Are stronger laws as suggested by the UN Official – the answer to Sri Lanka’s torture problem? Would this not increase the power of the legal fraternity who live in their own world – looking down upon us as illiterate nobodies? Has the UN official studied the Legal system of Sri Lanka to find out who gets empowered by such laws – the ordinary citizen who practices the law – largely through jobs, or the legal fraternity who hijack issues to ‘takeover’ and not to merge?

In a current Testamentary matter in the High Court of Jaffna there was much discussion within the legal fraternity present in Court about the principles underpinning the distinction Final Judgment and Interlocutory Order which requires Leave to Appeal. As per my understanding where the Order of the Court is Interlocutory – Leave to Appeal is needed. The problem arises when it is not clear on the face Order whether the Order  is Interlocutory or Final Judgment. When I sued senior officials in Australian Public Administration, the matter was often dismissed as ‘frivolous or vexatious’ – the clause being often  blindly used by lawyers to suit the Judge. Only a few actually had some understanding of the value. 

The work I did back then in Australia – paid off – giving me some base to understand the issues here. I practiced the law to the extent I had knowledge of it and for the rest – I paid my respects to the Court system as it stood at the time of my participation. Hence when the lawyer responsible to present our case at the primary level said that the order was Interlocutory – I did not question it. I filed the papers on that basis. Half the allowed time went in getting the order from the Court Registry. The papers were filed through our General Attorney and NOT through a legal expert. This confirms an experience based approach. Now the other side lawyers are claiming that it was final judgment – meaning I ought to have Appealed directly. How does a lay person understand the difference between the Right to Appeal  and the need for Leave to Appeal?

Often in Australia where my complaints were dismissed – the Leave to Appeal was raised and granted at the beginning of the Appeal hearing. Now they are more regularized and I used that Australian format when I filed papers in the above Testamentary case Appeal. To me – the use of Australian format  is like the Hybrid system that UN recommended. But the Courts are not ready for it. Like Politicians, some parts of  the Courts also are receiving welfare monies and status – relative to the public who seek the services of the Court. In democracy, the power of the legal fraternity should not be greater than the power of the public who eventually use the judgments in one form or the other to strengthen or weaken social order. With this in mind, I sent my suggestions to our legal representative and included the following:

[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 5th Respondent with the support of the 6th 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 6th Respondent empowered by the delegated power of the 5th 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  matter Chettiar 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).]

Within the Tamil Community, I would have explained the above distinction simply through the song ‘paadariyen padippariyen’ (I know not music; I have not education) - in the film Sinthu Bairavi by the famous Indian Film director K. Balachander. The young lady challenges the highly qualified musician who sings in Telugu (the parallel of Legal language) to which music the audience show surface appreciation – through head movements! The parallel of the above in relation  to  UN’s suggestion regarding Torture – is explained as follows:

In Thunaivi village – one often finds folks getting even with each other through emotional attacks. In one such incident – a guy (R ) who had been unemployed for months sought a loan from us. Since he had completed his allocated job to our satisfaction when we were building the cottage – I agreed but I needed the assurance from him that he would not come to the temple after getting drunk. I had noticed this previously through our camera system and quietly disciplined him. He said he had given up drinking three years back! I took his word and gave him the loan. That night – he went over to his brother in law’s (S ) place and picked a fight with him. R’s wife said that he had used part of the loan money to get drunk. I still did not feel upset – the reason being that S who did not deliver as per the remuneration he took from us to erect the fence was being attacked by his family senior. It was Natural Justice. Now R is back doing some coconut business. These folks do not call in the Security nor go to the Police to submit their problem. They get even at their level. Hence the support for the LTTE. How can the UN’s suggestion prevent resurrection of such forces from folks who have found it easier to isolate themselves and become ‘free’ at the lower level – the same way Sri Lankan Government became ‘free’ by declaring victory over Terrorism by getting even at the emotional level? Without the use of Common Laws – no government has the power to take higher position over a citizen. In democracy the excess at the top is prevented from flowing down to the bottom through Opposition showing the ‘other side’. This is possible when the two sides are Equal in power. This was legitimately won by TNA but the position is often allocated mentally to the Joint Opposition led by former President the Hon Mahinda Rajapaksa. Tamils achieved this Equal position due to the Mother Energy within the Tamil Community. Every member of a group/institution who contributes through work and/or sacrifice develops this Shakthi/Energy – known as Intuitive Feeling. That part of the contribution gains Absolute Power and the person carrying such Energy becomes part of the Natural Judging Force. Unjust subjective discrimination by the higher relative automatically develops this Energy in the lower relative who quietly accepts the pain and loss instead of reacting at their level – as LTTE did. Irrelevant laws combined with isolation – leads to such premature reactions which eventually are listed as Terrorism. The way I observed the workings of the Natural system – in the above mentioned Thunaivi matter – many Tamils in the community observed through the LTTE - the return to the Sri Lankan Government which tried to enforce language of the majority on all as well as tried to deny Tamils merit based entrance to University through the quota system. It is their power that elevated the political status of Tamils to being equal to that of Sinhalese despite the latter’s majority status. In every institution – the power of such quiet acceptors who develop the absolute power by becoming Observers – rather than participants – mental and/or physical – will help manifest higher value outcomes than those where leaders are rewarded including through new laws.

The question is whether the above claim of victory over Terrorism, was final or interlocutory? If final – then the Sri Lankan government has the responsibility to be transparent about its use of processes upto that level. Each reader of that Judgment / Claim would draw her/his own picture for her/his own purposes.

 If interlocutory – then the hearing of the war conduct must continue to lift the picture to the higher level – readable by Global Investors. The process must get lifted to the highest level earned by the highest practitioner of the law who is effectively Sri Lankan. All other laws above that level are for academic purposes and must not disadvantage the practitioner through greater importance being attributed to academic work over practice.

When such excess happens – the opportunity to rebel is Naturally generated through that ‘gap’ between theory and practice. It is to limit this that the Leave to Appeal process needs to be gone through. The simple test is whether the Court through the picture drawn - has recognized the highest practitioner’s contribution to the applicable laws – before delivering the Order. In our case our Affidavit was set aside and it was more or less one-sided hearing by the primary Court. The parallel of that in the Sri Lankan ethnic issue is that the minorities are set aside even after they earn the Leader of the Opposition position and the Parliament becomes a one-side show.  TNA to the extent it is empowered by Tamils who submitted their pain to the higher system instead of taking revenge at the lower level – is the Mother in Sri Lankan Parliament. No law or intellectual discussion can cure this blindness to the manifestation of Truth.

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