Monday 1 August 2016

Gajalakshmi Paramasivam – 31 July    2016

Taking from Colombo and Giving Jaffna?

One of the returns for my 29 July Article – Jaffna is not Terra Nullius – came in the form of directions to an interview of the Chief Minister of Northern Province - by Daily Mirror – at

I was impressed by the clever reporter who seemed to have cornered the Chief Minister in relation to the CM’s apparent double standards in the Jaffna University Matter. More importantly, the interviewer brought out that the real strength of Mr. Wigneswaran was his judicial mind which seemed to be in conflict with the Political mind. Mr. Wigneswaran who is the most talked about Provincial Chief Minister in Sri Lanka, had the opportunity to highlight the importance of Equal status for minorities relative to majority race. The claim  that the actions of  Tamils in the Jaffna University incident where Sinhalese students were attacked were not ‘tit for tat’ , was proven false through the interview. Logically speaking, Mr. Wigneswaran highlighted that the performance of Sinhalese dance during the primary part of the ceremony was unacceptable. That was my response also when a Tamil rang me from London asking me as to why Sinhalese did not have equal opportunity to participate in the main ceremony. Denying that it was ‘tit for tat’ was illogical. To my mind, the claim that it was ‘right’ to play Hindu Tamil music at that University is the parallel of Article 9 of the Sri Lankan Constitution which allocates foremost place to Buddhist pathway. ‘Tit for Tat’ may sound unstylish – but that was exactly what it was.  We the ordinary folks call it Equal Opposition.

Given that Land title by Prescriptive rights is an important issue in Northern Sri Lanka also, it would be useful to analyze the issue through the principles governing Prescriptive rights.  There was no law against the Sinhalese performing Sinhalese dance at a University that is predominantly Tamil to the ordinary folks. Hence by law they were not wrong. Likewise, performing a Tamil dance or a Muslim dance at a predominantly Sinhalese University. The question is whether Tamil leaders who opposed / found fault with the Sinhalese group – applied the same rule when Tamils ‘performed’ in Sinhalese areas and more importantly Common areas that were NOT common to them. The painful example that comes to mind is the package of bodies of 13 soldiers sent to Colombo by the Tamil Tigers in 1983 which led to the ‘Tit for Tat’  Black July riots. Tamil Tigers were entitled to use their Prescriptive rights through ‘Adverse Possession’ to defend their territory in parts of North unoccupied by civilians. But they did not have the right to send the bodies to Colombo which to them was another’s land.  That was uncultured and confirmed that the Tamil Tigers did not feel true ownership in Tamil culture and therefore in Jaffna. They used the cultural claim to ‘show’ and ‘tell’ and did not ‘participate and preserve’. Their actions were against Colombo and in 1983 Mr. Wigneswaran was part of Colombo which he claims was his first home. But back then Mr. Wigneswaran was not a politician with the duty to pass belief based one-sided resolutions – like the American led UN Resolution against Sri Lankan  Government. These one-sided resolutions are the parallels of Deeds of Declaration by those claiming Prescriptive Title. Through that UN resolution Tamils got even with Sinhalese who labeled the LTTE Terrorists, through similar process but more comfortably due to their official title. Getting even is one way of eliminating madness. But that would not have happened if not for the Tamils with self-governance credits, including the LTTE as part of ourselves and absorbing their weaknesses as our own. Those who did the outer work were messengers/pathways through which this Balancing force manifested itself at the right time at the right place. The root-source of this force is the feelings of those who were truly self-governing and are/were seen as being part of the Tamil community in common with the Tamil Tigers.

The parallel of the Tamil Tiger claim that was lacking in belief is the repeated claim by Mr. Wigneswaran that he did not want this political position but that he was influenced into it by others. Until he feels part of the Chief Minister’s position- he does not have the moral authority to pass such one-sided judgments / resolutions on behalf of the People of  Northern Province. When he does he is acting unlawfully against the official system. Belief makes all the difference and steers us clear of irrelevant laws.  The judicial mind is based on facts and law – however irrelevant that law may be to our current environment. Hence the need for Doctrine of Separation of Powers between the Judiciary and the Politically driven Government.  Judiciary  needs to ‘show’ on behalf of the People and ‘see’ on behalf of the Law. It uses relativity – with law as the common base. Belief is Absolute in value for the believer and the two may not meet at that place at that time.

A Colombo Judge showed this confusion between Legal Title and Prescriptive Title when the Judge used ‘Balance of Probability’  dismissing our complaint as Legal Titleholders – claiming that the legal titleholders did not prove possession. The Defendant claimed that he never say any legal titleholder  enter the premises. The Prescription Ordinance requires proof of possession through a title Independent of or is Adverse to the legal title. My submission against this included the following:

It is submitted that if possession is required and therefore relativity is used through ‘Balance of Probability’ test – then it negates the requirement to show full physical possession. At least one physical entry by the Legal Titleholder is needed to be recognized, for the application of relativity that the rule of ‘Balance of Probability’ is based on. Where there was no entry recognized, it confirms Independent pathway. Where there was entry but that was considered to be ‘out of order’ as per the mind of the Prescriptive Titleholder the claimant has the authority to credit points through ‘Adverse to’ requirement. Where there is denial of any such knowledge – the only avenue available to the claimant is ‘Independent of’ criterion. By using the ‘Adverse to’ criterion the Legal team of the Defendant as well as the honorable judge – have denied the Defendant the claim of Independent pathway.

The parallel of this in the Tamil Declarations of Independence are Vaddukoddai Resolution and its descendant the recent Northern Province Resolution. To the extent they are Belief based – they are beyond the reach of Law. Mr. Wigneswaran kept referring to himself as a lawyer with a brief. Mr. Wigneswaran did not state that he was the lawyer for the Prescriptive Rights claimants through Independent Title and NOT Adverse to Title. Hence he responded to the question as what his  judgment would have been if the parallel had happened down South. That is not within the territory of the Chief Minister of Northern Province. That question ought to have been passed on to TNA in National Parliament – to use their ‘Adverse to Title’.

To use the ‘Adverse to’ title – the other side ought to have been manifested by the Government or the People who elected that Government. In the Jaffna University matter therefore it was the duty of TNA in National Parliament to defend the belief of Tamils through ‘Adverse to Title’ – for example that they are aware of the legal rights of a University student – but that they deny that through their cultural right – on the basis that as per their belief that place is ‘Tamil’ homeland through experience. That experience is that that University was compensation for the denial of merit based entry to Tamil students, due to the Government’s quota system. The Diversity of Jaffna University must be preserved as a cultural heritage – to honor all those losses. This is needed by Sri Lanka – to invoke the support of the forces of Natural Justice.

The Double standards happened due to Mr. Wigneswaran being conscious not only of his judicial achievements but also that he was born and groomed in Colombo. Recently I said to a young Tamil that instead of getting angry he needed to get even by showing his outcome independently. I said that that was Democracy which required shows of Equal Opposition. He then asked me whether I accepted that  it was because of anger that ‘the movement (as the Rebels are referred to)’ had saved Tamils from being wiped out as a Community. I said I did not believe that such wipeout would ever happen in Sri Lanka. I said also that I saw no reason for the ‘the movement’ to believe so – because they had not lost or suffered directly due to civil riots in Colombo and other multicultural areas; nor was the LTTE leadership part of the victims’ group that suffered due to the quota system in higher education. I explained that to my mind – one without official portfolio had to feel the pain to manifest opposite side through belief.   It is not enough to ‘think’ based on knowledge of rights and wrongs in the past. A rebel who exceeds this moral authority – becomes a criminal and loses political power.

Mr. Wigneswaran was also using Colombo power as part of the Judiciary - to advance Jaffna’s claim. Jaffna people have to win on their own rights. If they are pampered – we would be copying Sinhalese leaders who also pampered Southerners by using Colombo power. As a self-governing Colombo person Mr. Wigneswaran has the duty to share with all Colombo folks. Jaffna must fend for itself.  It can and that is how we respect the dignity of the Jaffna man who would not take welfare and insult his own educational investments. 

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