Thursday, 23 June 2016

Gajalakshmi Paramasivam- 23 June   2016  

Judiciary’s role in deterioration of Law & Order

As per the system of Democracy, the Judiciary is Equal to and is Independent of the Executive Government.  Sri Lanka’s immediate past  Executive Government was accused of acting in breach of the Doctrine of Separation of Powers when it dismissed the then Chief Justice – Dr. Shirani Bandaranayake. But this breach happens regularly when Politicians rule prematurely in Administrative areas and Judiciary compromise in dealing with members of the Executive Government. I learnt about the Doctrine of Separation of Powers from our Human Rights and Equal Opportunity Commission when I brought action against senior members of our Federal Government – including Mr. John Howard who was then Prime Minister. But I had wisdom in the value that this doctrine represented through its parallel in Accounting Profession which required separation between Management and Auditors. My communication with the then Auditor General of NSW, Australia, is in Appendix 1

In many aspects the actions of the Tamil Tigers are condensed form of this Political interference in Administration. In The New Indian Express article ‘Judge Ilancheliyan struck terror in the hearts of Jaffna's criminals’ – reporter P.K. Balachandran states :

[The people, from Chief Minister C.V.Wigneswaran downwards, pointed an accusing finger at the 150,000 Lankan troops stationed in the Northern Province supposedly to maintain law and order. If criminals were running amok, Security Forces personnel must be hand in glove with them, they alleged. Chief Minister  Wigneswaran kept calling for a total withdrawal of the armed forces to restore law and order.
But while most Tamils were content to put the blame on outsiders and did  little to change the situation themselves, Jaffna High Court Judge Manickavasagar Ilancheliyan decided to take the cudgels. Using a mixture of law, spunk and derring-do, he brought the crime rate down visibly in just a year and a half, winning plaudits from every section of society.
“The parents of the errant boys were among the happiest as they had totally lost control over them,” Ilancheliyan told Express.]

While most Australian Judges have the luxury of enjoying this Separation at the physical level, those in war-affected areas of Sri Lanka do not have such comfort. They have to be Public Administrators at one time and Judiciary the next. Many lawyers including the Hon M.A.Sumanthiran M.P. actively practice Law while engaging in Politics.

Where one enjoys official status one way or the other – one has to renounce that portfolio’s benefits – while acting in the other role. One who is driven by Truth and therefore Belief – naturally renounces – when s/he changes roles. Thus lay litigants driven by Truth – contribute to the true laws that drive the Natural Energies of a place.

I am appreciating this separation value more and more through my Colombo Land case which is being heard through Prescription Ordinance as well as my Jaffna / Vaddukoddai Testamentary case being heard through Thesawalamai Law. In my own submission which is yet to go before the Colombo Appeal Court and which was discarded by our young lawyer in the Jaffna High Court – I state:

[It is submitted that where a claim is confirmed/proven  on the basis of evidence, the return pathway is also valid.  The evidence is the visible and/or known part of the claim. The unseen soul of the claim is the Belief. One could therefore start with the claim and end up with the evidence or v.v. The two would be in harmony where the claim is valid.

The validity of this is highlighted as follows by Hon Justice Saleem Marsoof, P.C., J.  in Storer Duraisamy Yogendra  &  Balasubramaniam Thavabalan  Vs. Velupillai Tharmaratnam:

[The decision of five judges of this Court in the Rajendran Chettiar case is not only binding on this Bench as it is presently constituted, but also reflects the practice of Court both in England as well as in Sri Lanka. As Lord Denning, M. R. observed in Salter Rex and Co. v. Ghosh [1971] 2 All ER 865 at page 866 – “Lord Alverstone CJ was right in logic but Lord Esher MR was right in experience. Lord Esher MR‟s test has always been applied in practice.”]

It is submitted that the above principle applies also in the case of Prescriptive Rights – where the Absolute value of Belief would have developed through an independent pathway, is respected and recognized as being of higher value than the legal title which often includes theory which may not be applicable to local environments. It is submitted that Logic is relative whereas Belief is Absolute in value. ]

The above is the parallel of using Hybrid Court and yet did not reach the Jaffna Judiciary. The actions of  Judge Ilancheliyan, need to be beyond the duties of his position and qualify as ‘Service’ – for which they have to be Experience based. The Experience would be his own as an individual and/or as part of a community and on behalf of a community. I explain this as follows in the submissions in the Colombo case:

It is submitted that legal measures are visibly simpler due to work done by developers of legal systems being condensed and held as laws and Due Processes. To match the whole – a physical possessor has to be ‘seen’ to have done its equivalent to the part he claims to have possessed. It is submitted that it is the difference between calculating length by physically using a simple ruler as opposed to using a formula based on reliable theory. The two would be identical if they relate to their respective bases and reach their destination. Until then they must not meet. To be able to calculate physically – the claimant ought to be able to physically measure by himself without using any formulas. A legal title holder who has ‘abandoned’ the property would rank lower than such a measurer even if that legal title holder has satisfied all the legal requirements. The requirement to satisfy feeling of ownership does not include physical measuring nor physical occupation by the legal title-holder. There is documentary evidence on the part of the Plaintiffs of this commitment to own and to mentally-hold that property . The survey map by Mr. Thirunavukarasu is just one such documentary evidence.’

The judge at the primary level failed to give any recognition to this work by a true professional Surveyor Mr. Thirunavukarasu but took the word of the Sinhalese occupant who claimed that he had had the land surveyed by a surveyor. No independent, objectively measurable evidence of that was presented to court and the judged used the Balance of Probability rule to award judgment in favor of the Sinhalese occupant. But by representing myself I am identifying with evidence that would defeat this Trespasser in a just Court. That is the best we can do. I am learning that when we do our best and do not draw lower benefits – prematurely – Natural Energies carried as Heritage – come to our support to have the real Experience – irrespective of what the Court rules. But the moment we take revenge – at the lower level – as the Tamil Tigers did – we block the pathway to escalating to that Natural level above all other Courts of Justice.

Confirmation that my work in the above matter as well as through the Sri Lanka Reconciliation Forum Sydney, came earlier this week when Dr. Gamani Goonetilleke, the younger brother of our Barrister wrote back informing me that our barrister the Late Nehru Goonetilleke was his brother. To me that was a Spiritual connection which filled my husband and I with much joy. It confirmed also that our contribution to the above forum was raised to the higher level. Below is the passage I wrote in this regard:

[The parallel in my case to redeem my Land in Colombo is the Judge ruling in favor of a Sinhalese-Buddhist  who confessed to being educated only up to grade 2 – claiming prescriptive rights over my land – the period including the war period when my representative relocated to Jaffna and hence we could not provide subjective confirmation of our physical entries. But there were documents confirming that the occupier was lying about his occupation. Had I limited myself to thinking that this judge was biased due to my ethnicity and therefore ruled against me – using ‘Balance of Probabilities’. Even though I felt this to be the case I recognized also the lengths to which our barrister – late Mr. Nehru Goonetilleke with his team - Mr. Mahendra and Mr. Manoharan – worked with commitment to bring out ‘facts’ through the legal pathway. Had I given recognition to the Judge’s ‘bias’,  that would have overridden / extinguished Mr. Goonetilleke’s contribution through a mind that already was above racial bias. So, I dug deeper and found documentary evidence to confirm that the occupant had lied and misled Court.]

The above merger is a true Sri Lankan heritage developed by those of us using our experiences beyond our position responsibilities but do so within our own Truth. Those are the Natural heritages that those who believe in us are empowered by beyond time and place. Gamani and I had to lose some of our status and opportunities with our respective ethnic groups towards this merger. Likewise the above multi-ethnic legal team led by Mr. Nehru Goonetilleke. Similarly – Political leaders need to sacrifice political gains and opportunities to raise themselves to the higher Common level and do so of their own free will.

Without such sacrifice – Jaffna will continue to be strongly influenced by ‘possessors’ than ‘governors’. Owners by Possession can defend themselves but not attack others. The moment we condone physical possession above mental ownership – we start separating ourselves towards isolation. This is confirmed in low caste areas where brawn rules over brain. I live in one such area and share my higher Energy  through business activities. That Land around our family temple does the rest and that to my mind,  would go towards preventing future armed wars in Sri Lanka. When each one of us uphold the Truth through our respective positions and spaces – there can be no greater power than that to protect our Sovereignty. If we do so as a community – we become Independent and do not recognize any other authority. That is the one-way political path. If we depend on the other side to find fault with – then we need the other side to find fault with and therefore to feel Equal to them. Such feeling is confirmed through us showing the ‘other side’ the moment their side is published. Hence the requirement for Prescriptive Title to be Adverse. Those who take the Sinhala Only or the Tamil Only pathway need to not recognize and be distracted by any other authority. Those who take the Sri Lankan highway – need to show Adversity at Community Political level and Equal Opposition at Judicial level. To the extent lawyers takeover litigants’ matters and use higher doze of law they isolate themselves from that community/society. Those lawyers also need the parallels of the cudgels used by Judge Ilancheliyan as part of  Judicial Administration.

Appendix 1
Mr. Sendt wrote on 20 November 2003 in response to my Public demand for him to pay his Dues as an Accountant::
Ms Param, I fully understand that auditors are not to participate in the management of the entities they audit. That is basic. What I said in my report is that external financial reports only give a partial view of the performance of many public entities. Such entities are not established to earn a profit or a return on assets, but to provide services to the public. So to give a true and fair view of how well they are providing services, they also produce non-financial performance indicators. If financial reports are required to be audited – to give the public confidence in their accuracy – then so too should the performance indicators. I fail to see how you can state that this is participating in the management of the entity.
Bob Sendt
NSW Auditor General

My response to the above indicates the deep wisdom I have in Audit and Compliance, largely based on my Sri Lankan training:
Thank you Mr. Sendt for  the prompt response. Most progressive organizations produce both – Financial and Non-Financial Performance Indicators. They  are both for MANAGEMENT purposes and reflect the THINKING and WORK_IN_PROGRESS. If you use Performance Indicators – then you are thinking with them. This is like the Executive Government participating in the Judicial process. Your Non-Financial Reports are the Legal records that these organizations are required to maintain – such as the Recruitment and Employee Assessment records. Where there is a big gap between Law and Practice – it requires YOUR staff to do the additional work. Taking the Performance Indicators distracts you away from this work. It is in breach of the Doctrine of Separation of  Powers. These organizations must be allowed to confidentially do the cooking and it’s up to your staff to do the spy work from the finished product to the LAW and not to their dreams and goals. You are seeking the short path because your staff are not trained to find out from the client staff what is going on. Staff often ‘hide’ information from you because you are third party. So they should. That way your staff would improve their skills. Using client-staff’s work-in-progress deters your staff from thinking through their own specialty = AUDIT on the basis of existing LAW. Then we would become a uniform society instead of a diverse society challenging each other – you within the existing law and the operational staff towards tomorrow’s laws. Challenging leads to creativity – as you can see from me. Gandhi also said that the night he was thrown out of the first class compartment of the South African RAILWAYS was his most creative experience.
You need to get the client organization to publish their non-financial reports that are mandatorily maintained. Public service organizations primarily make goodwill. This can also be positive or negative – profits or losses. They are collected together and are balanced with the total costs through Common Funds. It will be useful for you to develop a standard dollar value for these legal requirements so the People can SEE and know the Truth. Your role is not to help them make a profit but to report whether they are and how much. How about doing one on UNSW? Or State Rail?
Thank you again for responding. It has helped deeply.
Gaja ( effectively in custody)

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