12 August 2016
|Muruga by Ravi Varma|
We, the Lesser Children of the Judiciary
I was in the Courtroom of the High Court of Jaffna – awaiting the arrival of the Judges and our side lawyer. Seated at the bar table was Mr. Yogendra – the lawyer for the Petitioners-Respondents in the testamentary matter regarding the Estate of my brother in law Mr. Subramaniam Yoganathan of Vattukottai. A genuine litigant ‘waiting’ for the Judiciary indicated strongly that Justice was being delayed for better or for worse. I turned the pages of the Appeal Brief and my eyes were drawn to the case-law ‘Kobbekaduwa v Jayawardene and Others’. It was much later that I read the names of Judges making up the Judicial team which was as follows:
SHARVANANDA J., WANASUNDERA J., VICTOR PERERA J., SOZA J. AND RANASINGHE J.
One who is familiar with the Sri Lankan culture would identify through the names that the first member of the team indicated Tamil origin and the rest indicated Sinhalese origin. The matter was Election Petition 3/82 – dated 13,14 and 15 December 1982. The applicable law was stated to be S 93 (a) of Presidential Act No.15 of 1981. The details included ‘corrupt practice of false statement of fact in relation to the personal character or conduct of opposing candidate……’
To someone uninterested in Sri Lankan Governance – this case law would have seemed irrelevant. The only direct relevance to our matter was in relation to validity of Affidavit and the consequences of providing false Affidavit. The words in the Reasons for Judgment go as follows:
‘Section 13 of the Oaths and Affirmation Ordinance furnishes the sanction against a false affidavit by making the deponent guilty of the offense of giving false evidence. In an affidavit a person can depose only to facts which he is able of his own knowledge and observation to testify.’
Until this time – 10 August 2016 at which time I read the above – I was puzzled by a statement made by our then Attorney at Law – much older than the current one representing us – stating to my husband and I on 04 October 2012 – in lawyers’ room within the Mallakam Courthouse, when we refused to sign the affidavit prepared by him on our behalf – that one could be sent to prison for providing false affidavit. This puzzled me because we categorically refused to sign the affidavit prepared by him – as that would have amounted to misleading the court – the real court as per our mind – the mind of the litigant. Using such strong words as ‘prison’ did not make sense – until this week when I read the above case law included in the submission by the other side. I now realize that - given that the legal system in Northern Sri Lanka was driven more by outcomes and less by ‘structures’ that support common policies – the above statement by our lawyer was to ‘takeover’ our minds and obtain quick outcomes. The passage particular to this aspect included as part of my contribution to our side lawyer towards obtaining Leave to Appeal is in the Appendix: (the 5th Respondent is my husband – the Brother of the Deceased. I am the 6th Respondent in the matter).
This week in that Court I realized that the level of weakness in the Judicial system in Northern Sri Lanka has been deteriorated to the extent of making fools of litigants positions are hijacked by lawyers. Such ‘attitude’ is naturally communicated from the lawyers to others in the official system – including the Police officers present there. The Sinhalese-looking Police Officer at the Jaffna High Court for example, signaled to me to remain silent when I tried to respond to the suggestion by the Judge that we would be better off considering whether we should come to a settlement by dividing the whole of the Commonwealth equally after adding back the dowry, donation or Muthusum (inherited wealth) to the Commonwealth of the family and then distributing the shares after taking away from the respective heir the value of the wealth they had already received. That in effect is also what we were claiming. Back in December 2011, when the Lawyer for the Petitioners sent us his papers for signature to distribute equally - the current Estate of my brother in law – which is the Commonwealth of the brothers - given that my brother in law was a bachelor and the sisters had received dowry – we declined and sent him a schedule listing the dowry to the daughters and Muthusum to the sons as known to my husband. As per that schedule – from zero base – the sisters who received dowry owed the brothers – more the brother (my husband) who received far less muthusm than the other brother. When I tried to point out to the Judge this schedule, the Police officer signaled to me to remain silent. In the name of harmony – I remained silent and said to our lawyer after the judges left the Courtroom – that that was what we had suggested and I pointed to the relevant folio in the Appeal Brief, that confirmed this. I have since written to our lawyer with copy to the other side lawyer that we were agreeable to the pathway suggested by the Judge. To me justice was already upheld – 5 years after we proposed the above – as per our Experience of the family Truth. Truth never denies Justice. It delays largely for higher form of Justice to one who upholds Dharma.
The amazing discovery I made was also – as to how Lord Justice was operating while the official team was busy in another part of the Courthouse. In the above mentioned matter against former President J R Jayawardene – the reasons for judgment by the Judges of the Supreme Court - included by the following:
Thus what is open to objection is a false statement of facts with reference to the personal character or conduct of the candidate. In what has come to be known as the North Louth case reported in (1910) 6 O.M & H 103 (1) it was observed by Gibson J, at page 163 that :-
[“a politician for his public conduct may be criticized, held up to obloquy; for that the statute gives no redress; but when the man beneath the politician has his honour, veracity and purity assailed, he is entitled to demand that his constituents shall not be poisoned against him by false statements containing such unfounded imputations.”
In the Sunderland case, reported in (1896) 5 O.M & H 53, (2) a similar view was taken by Baron Pollock who observed at page 62 that the principal words here are ‘any false statement of fact’ but if it be a false statement of fact and if it be in relation to the election and to the personal character and conduct of the candidate, the Court has nothing whatever to do with the question which arises in cases of libel as to whether there was malice. Any false statement, whether charging dishonesty or merely bringing a man into contempt if it affects or is calculated to affect, the election, comes within this Act…..Thus some perfectly innocent acts which may be ascribed to a candidate at the time of election may come within the mischief of the election statute.]
The surface reader looking for direct connection may wonder what the relevance of the above was to my matter. I myself did not know at that time. But soon during the argument stage Mr. Yogendra, the lawyer representing the Petitioners stood up in Court in full uniform and repeatedly made the false claim that I was the second wife of the 5th Respondent. The fact as per the official records is that I am the first wife of my husband – the 5th Respondent. He is my second husband. The lawyer who claims equal share in the estate of my brother in law – as per Common Law – was the official person from Colombo. Mr. Yogendra the person beneath the uniform indicated that he was culturally biased against second marriages and at the primary courts - he successfully influenced the man beneath the judge’s uniform to deliver judgment in favor of his clients. But at the Jaffna High Court – Judge Ilancheliyan seemed to be more a judge respectful of his position and the uniform which demands respect from the public to the extent it demands responsibility to uphold the law which raises the officer above the gentleman. Judge Ilancheliyan ruled the line of order that so long as the marriage was legal – there was no issue.
But do we the lesser participants in court have the parallel of the protection afforded to the Politicians to protect them as individuals? I recall a section that protects litigants – usually minorities – taking their complaints of racial discrimination to Federal Court of Australia. The essence of it is that one who participates in the Court process must not suffer reduced status except through the lawful process. When my marriage was brought into the picture by the Petitioners and their lawyer – through claims that contained the imputation that I was of lesser character - it meant that I was attacked as a person and not as a litigant holding and equal and opposite position to the other side. Yet – even the best of judges seem to not take it seriously enough – at least as seriously as the Police Officer who signaled me to keep my mouth shut.
The sisters of my husband whose children were sponsored by us to migrate to Australia and the elder of the two sisters who also was in Australia not due to the official sponsor – their son Sabanathan Yohananda – who asked my husband to write over his share to the two sisters (his convenient interpretation of Thesawalamai as practiced by the family) - were acting as individuals beneath the official persons in the uniform of sisters. That is when the system of Natural Justice takes over to make them ‘common’ sans their special protection of the official positions in a particular group – family in this instance – provided the other side has genuinely invested more than they in the official system. This keeps happening more and more to me in Northern Sri Lanka where I feel the protection of faith.
On Monday – when I went to participate in the flag hoisting ceremony at Nallur Temple – I made up my mind to wash my feet at the temple – even though I had already washed them at home. Technically speaking I had to. But since it is not obvious – like for example males entering the temple with their shirts on – I could have avoided it. Personally I did not see anything right or wrong with it. But I thought of my Periammah (big mother) – Mrs. Manonmani Visvanathan who would have insisted on me washing my feet – especially ensuring that the heals were washed. My Periammah was part of our elders’ group who led us to Nallur Murugan and I needed to respect her training at that place. Later I felt that it made me feel more common with other devotees to whom such was an essential ritual. In turn I was rewarded within the temple at the point when People took-over the order of positions they held when pushed and shoved. I went along with the officials until that point and from the point the People took over – I needed common practices to know their minds and establish my own position. I doubt that any political or judicial leader of my times – is capable of doing this at Nallur. One has to be a nobody – a commoner to be able to self-rule from that point onwards. I usually feel the glory of Nallur Murugan helping me from that point onwards. This time I was seated right next to the flag-post and enjoyed the moving experience. I prayed that Jaffna should be blessed with Murugan’s system of Governance – which is global system.
I have felt such connection with Lord Murugan at Westmead, New South Wales, Australia also. Mrs. Saraswathi Sabanathan – the mother of the above mentioned Sabanathan Yohananda – who testified that she was not given dowry but only a donation and who said to my husband for the purpose of bringing him under her order - that he had brought shame to the family by marrying me – lost her wedding necklace at the big festival at Westmead Murugan temple. I knew then that Lord Murugan had upheld justice as Lord Krishna did when He came to the rescue of Princess/queen Throupathy of Mahabharatham - when she was being stripped naked on the claim that she was a whore.
I was interested in the stand that Judge Ilancheliyan would take in this regard – and that was for a special reason. When paying his last respects to his guru – Mr. Ilancheliyan the individual – referred to Mahabharatham elders Bhishmar and Thronar. That speech was forwarded to me by a leader of the Australian Diaspora. I was happy to note this because neither Bishmar nor Thronar considered Throupathy – the queen of minorities to be a whore for marrying five brothers. But interestingly neither had the courage and power to override their positions and become higher individuals to stop her being degraded publicly – as Mr. Yogendra kept doing.
Second marriage weakens a person and therefore weakens the system when it is for lower pleasures and not when it is for higher structures needed at that time at that place. One who classifies dowry as ‘donation’ demonstrates such weakness even though officially that person may be married only once. As per Natural Justice such a person who caused her personal desires to override her position responsibilities – many of which were taken over by me- returns on herself the weakness that that accusation indicates – in this instance welfare money from the brothers. Dowry comes with the blessings of the elders in the family and the community that practices the dowry system. Donation is for current merit by an individual. It becomes ‘bribe’ if paid or received without the person fulfilling the duties as per her/his position. It is gratuity if paid or received after the person fulfills such duties.
Both sisters claimed that they did not receive dowry and thus they accuse their father of not doing the needful to have them married. My husband on the other hand – shared with me his experience that his father was deeply upset that he was not able to arrange marriage for the elder of the two sisters. My husband said that he himself had felt the father’s pain as his and therefore continued to help his sisters even after they got married. Both sisters took it upon themselves to use my ‘second marriage’ status to get more benefits. Their lawyer stripped himself of his legal uniform and effectively ‘bribed’ the judge to deliver in favor of the persons beneath the uniforms/positions. This is one example of how Colombo lawyers conscious of high status – can add to the weaknesses in Jaffna where they do not feel a sense of belonging. Likewise foreign judges. The Australian system for example dismissed my complaint of defamation by members of that branch of the family, on the basis that there was no jurisdiction. To my mind therefore Australia has no jurisdiction in Sri Lanka – to hear charges of war crimes that took place in Sri Lanka.
The awesome beauty of Natural Justice keeps on amazing me. In that Court – Judge Ilancheliyan did not signal Mr. Yogendra the individual to remain silent as the Police officer did to me. Police officers in a court – have to have evidence of wrong-doing before they can exercise their authority as per their uniform. When the man beneath the uniform rises before the officer has fulfilled his duty – that amounts to abuse of power.
In a recent interview to ‘The Wire’ – the Hon. C.V. Wigneswaran – the Chief Minister of Northern Province stated:
‘The daily lives of our people have been affected negatively and adversely since the end of the war, with the continued presence of the military. The military cultivates acres and acres of private lands of our people and sells the produce in the market. No compensation is paid to the owners. Owners are in makeshift Internally Displaced Person (IDP) camps. These camps are not provided for adequately [by the government]. The Northern Provincial Council (NPC) for some time paid for them using public donations.’
To the extent the people of Northern Province supported the Tamil Tigers – those suffering are the ‘Rebels’. To such a person who considers that the war has ended, the compensation is the feeling of ownership that they feel through their losses/defeats. That defeat becomes the founding stone of civil opposition which Sri Lanka needs especially through the Judicial process. Northern Sri Lanka has the invaluable opportunity to lead the nation in self-governance, through this pathway.
A Judicial expert – needs to value the work of the elders of an area – by practicing their laws in their current forms as per the needs of the current generation. In the above example at family level – Thesawalamai Law – which is usually considered to be insignificant by the Colombo legal fraternity – stood tall – upholding the Equal Opportunity values between man and woman - built into the system of our elders particular to this part of Sri Lanka. The current merit basis could be applied only by finding the point at which there is zero advantage. Then we could use equal formula. Likewise in terms of Devolution of powers to the provinces. To the extent the above sisters abused the system which amounted to false claims of discrimination in their favor and therefore amounts to unjust discrimination against the brothers – they promote rebellion against time based authority. The political form of this is rebels using current victories to override the investment the People have made in Civil systems of opposition. The sisters are the parallels of the Tamil Tigers and the brothers are the parallels of the politicians whose places were/are hijacked by those under the influence of weapons.
The external enemy has been given priority by our politicians who turn a blind eye to internal weaknesses. As per the system of Natural Justice – a person with Judicial wisdom would be guided by the Lady/Lord Justice who is blind to what happened so that the root cause is known through experience. We get our solutions as per our own pathways. Given that Mr. Wignewaran’s pathway has been Judicial pathway – that is where the solutions would lie.
As a politician – Mr. Wigneswaran needs to be driven by personal belief in the place he represents as his home. As a judicial elder – Mr. Wigneswaran has to be blind to external appearances and have zero advantage start including as part of the war affected community - to be aware of the laws common to both sides. The above are political statements by a person whose past was low in politics and high in judicial system. To use the above current basis – Mr. Wigneswaran needs to renounce his Judicial status and start from scratch / zero base – to construct a merit based system of compensation – as was suggested by Judge Ilancheliyan in our case. The old status and benefits do not get lost. They become invisible foundations supporting the new pathway. To accept the suggestion by the Judge – I would need to lose the credits of my own work through the Theswalamai Law but I am open to it – considering the demands on the limited resources of the Judicial Services. My investment through the lawful pathway would become part of the invisible foundation that supports my community services. Mr. Wigneswaran was attributed his credits largely by by outsiders. Mine with the Judicial system comes through my own interpretation of the Law as per my experiences. I am therefore independent of others’ assessments. That’s when the pathway is open for direct communication with the Natural Judge common to all of us.
Taking an equal position as the Judge I could have questioned as to why I ought to use the commoner’s system to save resources – when the judge has given us a further date just to deliver his determination on the matter of the Leave to Appeal. Like washing my feet at Nallur – I need to go along with those who practice those judicial rituals – so that when the power of the official is exhausted – I would be able to self-govern by demonstrating that I was part of the ‘common system’ of those whom the existing legal system has failed. In other words, when the official system’s investment in law and order is less than ours, we the lay litigants with Experience need to wait and be ready to takeover as commoners to derive our own returns from that system – be it the temple system or the judicial system. We must not do it for individual purposes – but to uphold Dharma which is a universal system naturally driven by Truth.
At Nallur on Monday I had the realization that Mr. Wigneswaran needed to not only uphold justice on the basis of current claims but also ensure that he was true to his own inner judge – to uphold Dharma as per his Truth. So long as he takes status as a Justice he needs to uphold the investment in law made by the people of Northern Province as a priority above showing victory over the Colombo Government. As a politician he needs to develop new laws that would through the active practice prevent armed wars in the future. At our senior age – all of us need to do go beyond the position benefits to uphold justice as per our Truth in our respective local environments. Dharma would then take care of our genuine work values to support the next generation locally and / or the wider world globally. Use of merit basis requires global system of democracy which is yet to be made public by the Chief Minister who claims that Tamils deserve their own rule. But the question is – who are the leaders who would provide a higher system instead of letting Jaffna to manage through indigenous rule? Mr.Wigneswaran represents the higher investor in the global pathway also. His focus has thus far been towards Indigenous rule. There needs to be more investment in global systems and not just Indian systems. These need to be at the level of the People and not mere theories that impress outsiders. Are we the People of Northern Province so backward that we would consider second marriages to be lesser marriages – despite the obvious lesson personified by Lord Muruga with two wives? Thevayanai to my mind, denotes the official system and Valli denotes the person who merged through pure Love and did not need any structured system to become the Equal First Lady. Self Governing Hindu Tamils with Murugan as the example - would not demean such partnerships. I demand a law that would strip lawyers of their own entitlements to practice law when they demean any marriage through the court system because they do not have the authority of the law to win officially. As my spiritual guru says – Dharma must begin at home. Those who ‘tolerate’ such degrading lose their right to Equality before the Law in terms of political status in parliament that the TNA is supposed to be fighting for. We do not need an alternate system. We need to practice the existing system that we have inherited and developed further during our lifetime. THAT Mr. Wigneswaran is your real BRIEF from the Common Tamil.
(xvi) His Honor ruled on 01 June 2011 – for the Petitioner Mrs. Sakthidevy Mahadevan to follow Thesawalamai Law. (folio 33 of the Brief)
(xvii) In his letter attached to the Affidavit – the 5th Respondent states as follows to the lawyer representing the Petitioners – in response to the lawyer’s invitation to agree to the Petitioners’/his terms of distribution :
‘That was when you were contacted and you yourself contacted my wife on 28 April 2011 – more than 8 months after my wife said to the petitioners and the other respondents in your list to arrange for the legal system to handle the matter……….
The basis used by you in preparing the ‘Consent Motion’ does not seem to be ‘Thesawalamai’. As you would recall, my wife communicated to you from the very first day you contacted her in this regard, that I sought my Brother’s assets to be shared on the basis of Thesawalamai. You said that they were. I draw your attention in this regard to Section 7 of Tesawalamai Regulation 18 of 1806; 5 of 1869, which states …….’ (Folio 217 of the Brief)
The above evidence which was dismissed in limine by his honor confirms that the Petitioners’ Attorney at Law was firmly informed on 28 April 2011 that the 5th Respondent sought ruling as per Thesawalamai and that the 6th Respondent had met with resistance from the Petitioners in September 2010 – a month before the sisters sent the letter signed by the 4th Respondent - to Barclays Wealth.
(xviii) It is highlighted that the only time the 4th Respondent Mrs. Saraswathy Sabanathan appeared in Court was on 05 September 2013 as a witness for the Petitioners – in regards to the question of dowry. (folio 121 of the Brief). Relatively speaking – the 5th & 6th Respondents were present during many Court Proceedings and the 6th Respondent who holds the Power of Attorney of the 5th Respondent participated in almost all hearings after they filed their objection.
(xix) It is submitted in addition, that subsection 3 (b) of Section 528 of the Civil Procedure Code requires as follows:
‘The petitioner shall tender with the petition-
the consent in writing of such respondents as consent to his application.’
There is no evidence before the Court – that the 4th Respondent – Mrs. Saraswathy Sabanathan provided the above consent to the Petitioners and that the latter filed such in Court. While giving evidence (folio 122 of the Brief) Mrs. Sabanathan states that she attached the communication with Barclays Bank – to the Petition – confirming that she was part of the Petitioning process. Mrs. Sabanthan claims also as a witness – an Equal share on the basis that she brought up all her siblings after her parent passed away. Such claim is acceptable only when one takes the position of Petitioner or Consenting Respondent – through Due Process of Law.
(xx) At paragraph 4 of his submission dated 04 October 2012 (folios 43 to 98 of the Brief) the Attorney for Petitioners states as follows:
It is submitted that given that no consent in writing as required by section 528(3)(b) of the Civil Procedure Court was submitted to the Court by the Petitioners – as part of their petition – the above statements by their legal representative confirm strong disrespect for the Due Processes of Law by the Petitioners and their legal representative. It is highlighted that this has happened despite the censure by the First Judge on 26 January 2012 – that the Petitioners were Disrespectful of the Court and that their Attorney at law was acting outside the law.
(xxi) At paragraph 5 of his submission on behalf of the Petitioners, their Legal Representative states:
The Affidavit by the 5th Respondent at folio 198 of the Brief – confirms that all of the above are false claims – and that the said Affidavit was signed in the presence of Mr. P. Selvarajah – Justice of Peace and he has dated it 30 December 2011 at Ariyalai, Jaffna. The proceedings on 26 January 2012 – well before this submission of 04 October 2012, have recorded that the Court inquired and satisfied itself that the 5th Respondent was in Sri Lanka from 18 December 2011 to 02 January 2012. It is submitted that if there was any doubt as per the word of the 6th Respondent – certified copies of the relevant pages of the passport of the 5th Respondent ought to have been obtained through Court Process before the above submission was made to insult and devalue the 5th Respondent. Given that without this objection by the Petitioners – his honor / the court did not take any issue against the 5th Respondent’s Affidavit – independent of the Petitioners – the setting aside of the said Affidavit in limine amounts to denying the 5th & 6th Respondents their right to be heard on Equal footing as the Petitioners
(xxii) As part of their submission – the Petitioners have included case law records. This includes the case KUMARASIRI AND ANOTHER vs RAJAPAKSE. In his reasoning, the learned Judge Somawansa J.(P/CA) states: (page 52 of the Brief)
‘It is to be seen that it is the flesh and blood of the affidavit which gives life to the skeleton in the petition. In the absence of a valid affidavit supporting the averments in the petition, the petition becomes a nullity……..’
As highlighted at 2 (iv) above, the Affidavit of the Petitioners is of identical wording as their Petition, confirming that the Affidavit as well as the Petition are mere skeletons – without flesh and blood. The Affidavit of the 5th Respondent on the other hand had enough substance to invoke the Administrative Authority of the Court to disciple the Petitioners on 26 January 2012. The letter dated 06 December 2011 (folio 211 of the Brief) which was one of the Annexures to the said Affidavit by the Petitioners’ Attorney at law – confirms very clearly that the Petitioners considered themselves and their Attorney at Law to be the Judge and were merely seeking the signature of the 5th & 6th Respondents to satisfy the ‘skeleton’ of the Court Process.
(xxiii) The Affidavit of the Petitioners confirms also that they made decisions in relation to:
(a) deductions from the Estate;
(b) what share each heir was entitled to and
(c) the relevance of 6th Respondent’s marriage to the 5th Respondent.
If not for the inclusion of this particular status of the 5th Respondent and that Thesawalamai Law was applicable – one could have concluded that they were merely stating that there is no ‘special status’ to any of the heirs – be it higher or lower. Hence equal share could be taken as confirmation of their own allocation of status to each other within the family. But the Rs.450,000 credit allocated to the 4th Respondent’s husband – the 3rd Respondent and the apparent reduction in status of the 5th Respondent confirm the internal Administration within the custodians of documents.
(xxiv) All of the above confirm strong collusion between the sisters to ‘avoid’ the real value of the Court but merely to use the court to get the money as quickly as possible. It is submitted that if they were confident that they had Equal share as per the LAW rather than as per their legal representative – they would have gone through the Due Processes of the Court with commitment.
(xxv) By objecting to the Affidavit of the 5th Respondent – the Petitioners’ Legal Representative also confirmed the need for Administration. By inquiring into the Affidavit issue his honor also confirmed that he recognized internal conflict amongst the heirs and his further investigation into it – is an Administrative process. Hence in action his honor had already undertaken some of the Administrative process. It is submitted that his honor’s later order which effectively allows no Administration but only certificates of heirship is not valid due to this action in a Court of Law.
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