Picture courtesy – Ms Shenali Waduge
Gajalakshmi Paramasivam – 29 July 2016
Jaffna is NOT Terra-Nullius
Sinhala Nationalist – Ms Shenali Waduge, like many others of her kind seems totally confused between Autocracy and Democracy. A Diaspora leader of Sinhalese origin forwarded to me, Ms Waduge’s article ‘Sri Lanka: Do we need racist Tamils like Wigneswaran and Sambanthan when Tamils don’t vote TNA?’. Here in Colombo – which is home to me – I feel more and more happy that Tamils and Sinhalese are working more and more together – as it used to be in-between communal riots. I feel good. I realize that I feel good about this because Colombo is my home and I also have contributed strongly towards this greater harmony. I was born in Jaffna and had my founding education in Jaffna which is my home. I gave birth to all three children of ours in Colombo. Birth confirms that a place is our home as per our karma also – be it positive or negative. Birth is divine structure and the place we are born in is our Natural home – a part of our inheritance. Hence Colombo is also very much my home. Every place where Truth happens is home to those who manifested that Truth. Birth and Death are true experiences and hence birthplace is home to that person as well as the parents.
Given that I completed my ownership cycle by attributing credit - to my parents, teachers, family and community elders to whom also Jaffna was/is home – including through death – I released myself from the attachment to visible outcomes which are the bases of desire. This helped me merge with the minds of others who also were free of such attachments to other people’s credits. Those who fail to so attribute – punish themselves by becoming dependents on those pleasures that become Common to that place once it is past its current period. Even if we are born at that place – relative to those before us - we are mere migrants due to ‘time’. Once we complete the cycle of ownership – including taking credit for our share of the structure – we become part of that land. Any time we return, we experience the consolidated / Common feeling that all those to whom that place is ‘home’ are fulfilled, or that they are restless because of ‘foreigners’ disturbing the peace enjoyed by true owners. Hence angels and ghosts.
One who stays at the place of birth without paying her/his dues to ancestors whose work is benefiting her/him – is also a foreigner. When we attribute of our own free will – we become Common owners of that place – Common with our ancestors. In Hindu ceremonies conducted to raise the soul of a person towards heaven – it is customary to include a process confirming this during the 31st day memorial service. This involves the following: - arranging cooked rice – the staple food of majority Hindus – into three balls; Each ball represents one generation before the person who passed away. Then a fourth lump of rice is shaped into elliptical form and that represents the person who passed away; This ellipse is cut into three portions and each one is added to one of the rice balls representing one generation ancestor. That’s the merger with ancestors that completes the ownership journey. The place where this is performed becomes sacred and it empowers anyone to whom that person is a respectable ancestor. That is how culture is raised to the highest common level and preserved over generations as heritage.
In Hindu marriage ceremonies – three generation ancestral names are read out for each party – so the couple would be free of their attachments to the past. It happens when the bride is given away by both her parents and is adopted by both parents of the groom. Those who believe in their parents would go on to develop firm family structures which may not even be romantic but would support children to grow up as a family - as well as others who believe in such heritage to release themselves and achieve completion to become our marriage ancestors. Jaffna is enriched by such practices. Jaffna’s Peace is disturbed when there are enforcements from other cultures. Other cultures are not only those that come from other places but also those that come from the current generation who do not feel connected to their ancestors – something that Australian migrants were guilty of - at policy level – until we started attributing to Indigenous owners after Eddie Mabo’s fight to preserve ancestral rights as heritage. The more ancient such elders are – the stronger the roots we feed become. The stronger the roots in heaven – the greater the Natural harmony at that place. Jaffna’s natural harmony was damaged by all those who killed in Jaffna, without belief in those ancestors who invested in higher structures – including through English and Roman Dutch laws which are embedded in the roots of Sri Lankan system of Public Administration and Judiciary. Rebels did not need to consciously and expressly know the Common law. All they needed was to attribute to those from Jaffna who had realized ownership through practice of those laws also. The likes of G.G.Ponnambalam have left us with a heritage in the Common Law of Sri Lanka - more than in Thesawalamai Customary Law particular to Northern Province.
As per my learning, Buddha also was referring to ownership by recommending renunciation of desires because desire is the cause of all suffering. Lord Krishna through the Bhagawath Geetha said that Katpagatharu - the wish-fulfilling tree had its roots in heaven and its branches hanging towards Earth – demonstrating the gravitational pull of attachments to fruits of our work . Lord Krishna says - to Prince Arjuna the best Warrior Prince of that time who was lamenting that he could not bring himself to wage war against his family elders and gurus – to take the sword and cut the tree to disconnect vertically – so the root and the branches were separated – with the root staying eternally in heaven and the branch falling to earth to become part of the earth and thus losing its particular share and form – as in ‘Earth to Earth and Dust to Dust’ Christian saying. Whoever lives in that part of the Earth and invokes ancestral powers – will be empowered by ancestral powers of ownership. It would not work for those relying more on current merit and are therefore without strong connection to the Indigenous powers of that place. This often helps them spread laterally – and we have seen this happen with LTTE generation Tamils. That would not have happened if our heritage had been stronger than the credit we attributed to ourselves through current victories. All LTTE supporters ‘lost’ the opportunity to be Common ancestors of Northern Sri Lanka by being driven by current merit through those who failed to attribute credit to their elders.
Ms Waduge who is a ‘foreigner’ to Jaffna and therefore its caste system – states through the above article:
[The votes that the TNA have secured have been with a lot of Indian involvement and bogus promises made at personal levels to the voters.
What needs to be further highlighted is that these TNA leaders are from the elite Vellala caste where they are using divisive politics to remain feudal leaders of their people. You will not see a low-caste Tamil coming up the TNA ladder. While a handful of lowcaste Tamils are kept none of them can even dream of rising up the ladder to hold a meaningful role unless they function as lackeys. Let us note that it was against this rigid caste system that Prabakaran rose but given that to survive he needed to play the game he ended up taking his manpower and from the lowcaste and impoverished Tamils who constitute the majority in the Tamils. The same problem exists in Tamil Nadu political culture as well.]
The caste system is a heritage needed by members of the junior caste who seek to take up leadership positions in current Jaffna. It is this caste system that helped Jaffna reject the LTTE and they ended up making Vanni their capital. As a Hill country senior working in Colombo said to me recently – majority in Vanni area are from Hill country. They came largely as manual workers to Vanni. To the extent we practiced the caste system for work purposes – we lived together in harmony – by each one keeping to their respective position territory. Without that caste system - Jaffna owners would not have performed so highly in educational pursuits. If Sinhalese from South did not find us attractive, we would not have an overwhelming 60% Sinhalese student membership in the Faculty of Science of University of Jaffna where we recently had the problem between two groups of migrants – the Tamil students being time based migrants and the Sinhalese students being place based migrants. Neither is connected to the true owners of that University which has its cultural origin in Hindu philosophy and is situated at a place which has common global ownership through minds that practiced English and Roman Dutch Laws. Without this philosophy and global common order as our base – we would have tended to assimilate and therefore would not have the entitlement to Equal status as a Community with its own Land area that represents a diverse culture in Sri Lanka. Prabhakaran did not rise against the abuse of caste system. He himself abused it by making soldiers of those who did not connect to ancestral warrior powers. Often the ordinary folks of Thunaivi say to me when I explain what needs to be done as duty to parents and teachers – that they had no knowledge of such duties. To them many such processes were just part of ceremonies which they blindly followed without belief nor understanding – copied from the senior castes they failed to value. Prabhakaran as well as the Rajapaksas lost their dignity as leaders through this war against each other due to this indiscriminate mixing of jobs without borders. They entrusted ruling power to juniors driven by emotions. Such combination leads to animal behavior and hence the Lion v the Tiger.
There are many good examples of protection against this in Mahabharatham. The outstanding one is about Karnan who was born without biological intervention to the mother of the five Pandava brothers – the minority group parallel to the Tamil leaders of Sri Lanka. Since Karnan was born before his mother got married – the lady placed him in a basket and Karnan was found and brought up by a chariot driver and his wife. But being of Royal heritage – Karnan was outstanding in Warrior skills. When he sought to participate in warrior games organized for Royalty to show their citizens their skills – and Karnan sought to participate – he was rejected by the Royal family gurus on the basis that he was of a different class/caste by birth. That was when the leader of majority side Thuriyothanan – awarded to Karnan a city to rule and like Sinhalese leader Mr. Mahinda Rajapaksa and Tamil leader Mr. Douglas Devananda – the two became friends and Karnan died in battle in support of Thuriyothanan – confirming that he was true Royalty by being loyal to the Prince who upheld his dignity. That was NOT the case with junior caste fighters in the Lankan war and they often acted in breach of the rules and laws that Tamils had invested in, over generations – especially to earn the position of Equal Opposition through political process. On their own LTTE did not have power to earn Tamil leadership through Political process. Likewise, JVP in Southern Sri Lanka. The difference between Karuna Amman in East and Prabhakaran in North is more relevant here towards a solution than the caste based differences that have already manifested the injuries and inglorious deaths on both sides. Position boundaries protect us from such disasters.
There were abuses of caste based power – from both sides of the caste border. But once left on their own – they turn against their own – as Mr. Rajapaksa did and lost his position with his own side. He would not have if he had attributed credit to Common leaders of Sri Lanka whose roots are in heaven and branches are part of the Land that was home to them – in Colombo – the Common capital.
Under the subjective hierarchical system of autocracy ‘ownership’ had to be endorsed by subjects/persons senior to us and hence it was quite in order to discriminate subjectively - on the basis of culture and caste also. This helped mind-connections so juniors did not have to learn from zero base. The senior had the responsibility for the whole and was therefore entitled to discriminate on the basis of common-mindedness – rather than use merit basis from scratch. Most religious organizations – including Buddhist organizations in Sri Lanka, continue to use this subjective system to positively discriminate on the basis of one’s faith – as subjectively assessed by the Senior and willingly accepted by the junior.
Democracy on the basis of Objectively measurable outcomes replaces Subjectivity with Objectivity. Culture under the old hierarchical system was therefore replaced in Democracy by Land which is a Natural element. Some land spaces / electorates carry an overwhelming majority of one culture – and hence in Sri Lanka they are recognized as Tamil, Sinhalese or Muslim homelands. In India where majority continue to be strongly religious – the subjective system continues to work well and hence the division as per culture and natural separations and privacy. Legally – under Democracy, electoral divisions are the valid measures. Any priority to Hinduism in India for example becomes invalid due to Land being the basic measure of separation. Likewise Buddhism in Sri Lanka becomes invalid in a Democratic Constitution. The damage to the investment made by Sri Lankans in the system of Democracy – is exponential when such priorities are allocated on the basis of subjective power. That which is exponential has the greater tendency to work as an automatic force – compared to relative influences which regulate the flow of forces through laws and rules – including those inherited from foreign rulers.
Ms Waduge states in her article:
‘Firstly, there are no mono-ethnic enclaves and Tamil leaders have no right to be claiming any part of the island territory as their own. Yet, the Northern Provincial Council passed a resolution to prevent ‘colonization’ of Sinhalese. Elementary rule is - You cannot ‘colonize’ your own country and there is and was never anything that can lay historical claim for a Tamil only area! http://tamildiplomat.com/sinhalese-colonization-in-north-wigneswaran-must-take-action-npc/’
To the mind that confirms that there is no Sinhalese area in Sri Lanka – there would be no Tamil areas in Sri Lanka. The alleged Colonization resolution is valid at policy level – if the Sri Lankan State which has the authority to authorize on behalf of Sri Lankans authorizes on behalf of Sinhalese or Buddhists. Like Prescriptive Rights through Adverse Possession – such declarations – including the Vaddukoddai Resolution – and the above to protect the natural motivating forces of those to whom that Land has been Home for centuries – not because a remote Government says so – but because of the experience of group using common laws particular to their culture - through which that Land becomes home to them. If Jaffna was home to Ms Shenali and she was fearful of weakening her home value due to ‘external powers’ – she would have felt genuine pain when she saw more and more Buddhist cultural organizations developing during this period when people of North are still hurting from the losses in the last stages of the war. If she does not – then as an owner of Jaffna – I confirm that Ms Waduge is an outsider to Jaffna except by law.
As per Prescription Ordinance of Sri Lanka – belief based possession over long period is higher ownership than legal ownership. This is because belief is of absolute value. The excerpt from my submission in relation to this is listed in the Appendix and may help follow my mind-order in this regard. The occupier against whom we brought this action is Buddhist. Given that I am Hindu – to the extent we are subjective - the matter is also about our cultural mind orders. If according to Buddhism – one who possesses physically has higher rights than one who owns through the common pathway but with lesser degree of physical possession – then the above occupier would be the winner due to Article 9 of the Sri Lankan Constitution.
As per Prescription Ordinance – the person claiming independent or adverse title through wholesome physical possession – needs to have Belief and not just thoughts/knowledge influenced by external forces – including the temptations of Prescription Ordinance.
The parallel of this in the case of Tamil Politicians is that they must believe that their claim of ‘ownership’ is independent of or is adverse to the legal titleholders – the Colombo Government. JVP were acting as Prescriptive rights claimants when they rebelled against the lawfully elected Government. Such rebellions are to be expected in countries where People power is stronger than Money power and the official leaders start abusing their position powers.
Northern Provincial leaders have to establish Independence to claim the parallel of Prescriptive rights and National leaders of minority communities have to establish Adverse title which entitles them to self-governance. Ms Waduge highlights the possible alleged lack of Belief on the part of the former as follows:
[What is annoying about Wigneswaran and his racist slanders is that he had been living all of his 70 plus years in Colombo among Sinhalese and went to live in the North only after becoming the Chief Minister in 2012.]
This confirms that to Ms Waduge – Colombo is Sinhalese and not Sri Lankan. No politician elected at National level has the right to claim to be less – be it as a Sinhalese, Tamil, Muslim, Burgher or more as international migrant. Colombo is home of Sri Lankans of various origins – including Sinhalese origin and origin outside Sri Lanka – as a migrant. When in Colombo – fellow citizens to whom Colombo is ‘home’ – will naturally empower Mr. Wigneswaran. Northern folks seeking to be successful migrants in Colombo would naturally have voted for Mr. Wigneswaran. They are likely to be disappointed with Mr. Wigneswaran if he plays the Tamil only card – towards personal gain. If Mr. Wigneswaran does it for Sri Lanka – even though it may not seem logical to others, all Sri Lankan minds would support him – even though no one may be conscious of it. When would it be for Sri Lanka? It would be for Sri Lanka if it is to uphold the Truth about that part of Sri Lanka after all avenues through the official system fails to uphold the Truth. That is what Gandhi did and hence released Indians from being dependent on the British for their pleasures and living, while denouncing them as leaders. Both Mr. Sampanthan as well as Mr. Wigneswaran have to be measured through their position duties and not through the personal yardstick of the ‘free’ social opposition such as Ms Waduge – contributing to further disorder in Sri Lanka. Only those who have exhausted all official avenues would have order in their expressions when such expressions are based on their True experiences. They are self-governors and need to be respect as Governors – equal in status to the President. That would be very healthy for Sri Lanka and its heritage from this generation.
1. Experience v Theory
(i) The Base used for these Arguments is that the judgment is in breach of the fundamental values underpinning Sections 3 & 13 of Prescription Ordinance 1871. The essence of the Law governing Prescriptive Rights is that Experience based Title is of higher value than Legal Title sans Experience. In a Court of Law, legal Title ranks higher than Title by possession – except when the possessor satisfies the requirements of Absolute Ownership Value with no recognition whatsoever of another’s title in any form through any pathway. This kind of Absolute value is demonstrated by full physical possession and complete independence OR adversity/opposition of Equal value to any other form of Title. The Appellants argue that the judgment appealed against FAILS to demonstrate that:
(a) the Court had this expectation of the Defendants
(b) the Defendants satisfied this requirement of complete OR Equally Opposite Experience through physical possession
(ii) The validity of this exception is highlighted as follows by Hon Justice Saleem Marsoof, P.C., J. through 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  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.”]
(iii) It is argued and submitted that the above principle applies also in the case of Prescriptive Rights – where the Absolute value of Experience based Belief developed through an independent or adverse 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. Where theory is practiced – the two would meet at the destination of ownership.
(iv) It is submitted that the Prescription Ordinance requires the claimant of Prescriptive title to have had this Experience through wholesome possession.
(v) To be accepted at that level – pure of legal logic – Experience based Belief needs to stand on its own rights and not be relative to the logic of any alternate system – in this instance legal title. It is submitted that to be entitled to ownership through the logic based legal pathway – one does not need Belief. Knowledge that one has satisfied the requirements of the legal pathway alone is enough.
(vi) To claim Prescriptive rights on the other hand, one needs Belief which is confirmed by wholesome possession – as in blind faith. One who Experiences has Belief. It is submitted that the facts before the Court were not constructed by the Defendants to satisfy the above requirements of the law that that Ownership Experience was had by the 1st Defendant and inherited by the 2nd Defendant.
(vii) It is submitted that the Conflict between the Legal Title and the Prescriptive Title is addressed by the Prescriptive Ordinance by requiring the claimant of Prescriptive Title to have completed the pathway and have reached the Destination of Realised Ownership
(viii) It is submitted that one such requirement is to travel independent of the Legal Titleholder. Hence the Requirement of Independence or Adversity. Where the Claimant claims no knowledge whatsoever of the Legal Titleholder/s, the requirement of Independence needs to be satisfied. Where the Claimant does confirm knowledge of Legal Titleholder/s and their activities in relation to ownership of the property – the requirement of Adversity needs to be satisfied. It is submitted that the latter needs confirmation of Separation of Powers and Consciousness of Equal & Opposite status.