Gajalakshmi Paramasivam

14 April 2017

Sri Lanka & Australia – Everybody’s Business?

There is Truth in all manifestations. But often we do not make the scientific connection between cause and effect because we are distracted by the seen and the heard outcomes. One who identifies with her/his own Truth will make the connection through her/himself. I am making such a connection in relation to Mr. Narendra Modi’s ‘attitudes’ towards both my Nations -  Sri Lanka and Australia. As per Dr. Dayan Jayatilleke’s article ‘Ranil’s Worst Betrayal: Giving Trincomalee To India’ published by Colombo Telegraph:

[Indian Oil Corporation subsidiary Lanka IOC, engaged in bunkering operations, runs 15 out of the 99 storage tanks in the lower oil tank farm in Trincomalee. The proposed joint venture pertains to the remaining 84 tanks in the upper farm, but Sri Lanka would retain 10 of those for use by the Ceylon Petroleum Corporation…

During his visit to Sri Lanka in March 2015, Mr. Modi had said the project to develop the upper tank farm in Trincomalee would help the coastal town become a regional petroleum hub.” (‘Sri Lanka, India to develop Trincomalee oil tank farm’, The Hindu, April 9^th)]

As per the rules of Democracy, the People of that area must express their disagreement through their elected leader,  to the Government. In this instance the elected leader is also the Leader of the Opposition in Parliament. Yet, we have not heard any protests from the Hon Rajavarothiam Sampanthan, MP.

Here in Australia, the parallel of the above is in relation to the Adani Group’s business proposal ( ref. ABC article ‘Prime Minister Malcolm Turnbull has told the Adani Group chairman the issue of Native Title in Australia will soon be resolved, which could clear the way for the controversial Carmichael coal mine ) to establish coal-mine operations in area covered by Native Title Law – the parallel of   Prescription Ordinance in Sri Lanka. As per this Ordinance, inherited from our Colonial Masters - a belief based claim needs to establish ‘ undisturbed and uninterrupted possession by a defendant in any action or by those under whom he claims, of lands or immovable property, by a title adverse to or independent of that of the claimant or plaintiff in such action’

As per my experience in Colombo Courts, no distinction was made between ‘Adverse to’ entitlement from ‘independent’ entitlement. It took my belief that the land was mine, to highlight this in my submissions to the Court of Appeal. (excerpt in Appendix). The current debate in Sri Lanka re the appointment of  the President of the Court of Appeal – seems messy due to this lack of distinction between Belief and Merit.

Today is good Friday. To those who believe in Jesus today we mourn the death of the body prematurely in the consciousness that in a couple of days we would celebrate the eternity of the Soul. Every person who dies for her/his belief is assured of  Eternity. This includes many Sri Lankans during the recent war. One who denies the Soul to expand  business would not experience Natural Ownership of Being there. It is in confirmation of this absolute value that we vote to elect Government in the system of democracy.

One who has knowledge of opposition to her/his belief – has the duty to establish ‘adverse to’ title. It is the parallel of  Equal Opposition. Indigenous Australians who had no knowledge of any ownership claim by White Australians are entitled to their Belief based claim until it is established that they did have knowledge of the other person’s claim including  through the laws of the Nation. After Eddie Mabo’s struggles to establish Independence, we now have the Native Title Act. One who seeks to maintain her/his Native Title but at the same time permit use of the Land, has to sign in agreement – says Section of  NATIVE TITLE ACT 1993 - SECT 24CD:

Parties to area agreements

Native title group to be parties

(1)     All persons in the native title group (see subsection (2) or (3)) in relation to the area must be parties to the agreement.

The above confirms that the two sides – the Government and the Indigenous People of  Public Land, are conscious of each other’s claim and hence have to use the pathway through which ownership could be calculated. In terms of Prescriptive Ordinance – the way to measure such ‘adverse to’ title includes physical opposition to oust the believer. The parallel of that for Indigenous Australians is for 100% agreement and not majority agreement. In belief One is Equal to All and v.v. It will be interesting to see how Mr. Turnbull would lead his Government to legislate against this belief based requirement.

The interesting Commonness between the two matters is the ‘Opposition’ – Indians. If Gandhi were to rule – the ruling would be in favor of  M/- MINGLI WANJURRI MCGLADE (FORMERLY WANJURRI-NUNGALA) in the Australian matter and in favor of the People of Trincomalee in the Sri Lankan matter. Shame on the Indian Government that has failed to discipline its business arm to protect its Soul connections.

Belief is Absolute in value whereas Merit is relative. Once we recognize an opposition – we have the duty to use merit based pathway using measures common to both. In any relationship we need to complete the relationship to invoke Natural Forces which empower us as wholesome owners.

Dr. Dayan Jayatilleke’s claim that the current Prime Minister handed over Trincomalee port to India, cannot be on Belief basis – due not only to his knowledge of International Laws but also because as supporter of the Rajapaksa regime which handed over Hambantota to the Chinese – Dr. Jayatilleke accepted regional governance and lost consciousness of  Chinese as foreigners. Now this protest is too little too late unless Dr. Jayatilleke includes himself with the folks of Trincomalee and present his case through the Hon Rajavarothiam Sampanthan, MP and Opposition leader in National Parliament.

Appendix

Arguments

Defendant’s Confirmation of claim of Independence –

(i)                 As per the Evidence by the 1^st Defendant that he had no knowledge of the Legal Titleholders whatsoever (Attachment 3)– one could work out that he is claiming Independence and NOT Adversity to claim Prescriptive Title. To claim Adversity one needs to have conscious knowledge of the ‘other side’ but expressly reject that other side. This understanding has been highlighted by the Defendant-Respondents as follows – at paragraph 8 on page 4 of their submission of 16 May 2016:

‘It is pertinent to submit that the 1^st Defendant’s adverse and prescriptive possession was not a secret’.

The evidence presented to Court by that 1^st Defendant however – claims that he had no knowledge of the Legal Titleholder. That is the parallel of ‘secrecy’/’no-knowledge in terms of the other party and therefore the ‘other side’. To claim adverse possession one needs to ‘see’ the other side in mind’s eye and reject it. No knowledge of the other side means they claim ‘Independence’.

(ii)               It is submitted that where the criterion used to claim Prescriptive Title,  is Independence– the credit points must relate to laws and principles independent of each other – for example possession without any knowledge of the activities through the legal pathway and therefore like two diverse religions, the two never meet until the user of the  lower pathway completes the journey to realize the goal of  ownership at which point there is complete ownership.

(iii)             It is submitted that under those circumstances – one uses the property / facility without needing the endorsement of any other authority – including the officials of the government and/or the judiciary. It is submitted that the governing authorities need such owners to empower their own systems of Administration especially where there are wide gaps between theory of Law  and practice of Order. It is submitted that this is the reason why we have ‘user-pays’ facility  in the system of Democracy. Under this system one who has realized ownership as opposed to theoretical ownership has reached the destination of being one with the Institution / Nation / Land. Native Title Act 1993, came about in Australia under the leadership of Prime Minister the Hon Paul Keating after Mr. Eddie Mabo – an Indigenous Australian, fought to retain the Native Title to his Land on ‘Murray Island/Mer’ – overturning the previous conclusion that Australia was Terra Nullius. It is submitted that the parallel of Terra Nullius in Prescriptive Title cases is Abandonment of the Property by the legal Titleholder – which needs to be tested as per Legal pathway and not through ‘physical possession’ criterion.

(iv)             It is highlighted that the legal title of the Plaintiffs was accepted by the honorable Court - as having been established without any dispute. The question before the Court was / is whether it was proven that the Defendants acquired Title strong enough to extinguish that Legal Title of the Plaintiffs.  The honourable judge confirms this picture as follows on page 18 of the judgment:

‘When the evidence for the plaintiff in this case is taken into consideration it appears that the plaintiff has paper title to the property in suit.

The 1^st and 2^nd defendants do not contest the plaintiff’s rights to this land by a deed. But the defendants plead that the first defendant has undisturbed and uninterrupted possession adverse to all others for well over 10 years and thereby acquired prescriptive title. It is on the defendants to prove that on a balance of probability that 1^st and 2^nd defendants have been in undisturbed and uninterrupted possession adverse to all others of this land to acquire prescriptive title. When the evidence of the plaintiff is weighed it appears that the 1^st plaintiff or the 2^nd plaintiff has not possessed the land in suit ’

(v)               Elimination  of the claim of Independence by the Legal Team and the Judgment

It is submitted that as per the 1^st Defendant’s evidence – the claim is Independence but his honour has chosen the criterion ‘Adverse to’. It is submitted that by using the word ‘OR’  only – the law has made the two criteria mutually exclusive. It is submitted that this choice by his honour effectively sets aside the evidence of the 1^st Defendant in relation to knowledge of the Legal Titleholders and/or  their activities. Hence the evidence by the 1st  Defendant and the 2^nd witness in support of the 1^st Defendant, are effectively set aside by this ruling by his honour. It is submitted that claim of Adversity, by the Defendants’ legal team – is not supported by evidence by the 1^st Defendant.  The Documents submitted do confirm that that is the claim.

(vi)             The evidence in B) above in relation to the neighbour at 163/8, Nawala Road, Narahenpita goes towards confirmation of knowledge of legal owners of the block.

(vii)           It is submitted also that the law does not require the Plaintiff to prove possession. This has been recognized by his honour through his honour’s following statement mentioned above:

‘It is on the defendants to prove that on a balance of probability that 1^st and 2^nd defendants have been in undisturbed and uninterrupted possession adverse to all others of this land to acquire prescriptive title’

(viii)         It is submitted therefore that by accepting the Legal Title of the Plaintiffs and the documentations regarding maps/plans towards marking boundaries and construction of a home, the Court accepted that until 1982 when the Plaintiff went overseas – the Property was NOT Abandoned by the Plaintiffs – that it was NOT Terra Nullius. This then confirms that the legal team of the Defendants and his honour eliminated Independence by choosing ‘Adverse to’ criterion.

(ix)             In addition, Section 13 (e ) of the Prescription Ordinance requires qualifying period of 10 years to commence from the death of the 1^st Plaintiff or her return from overseas whereto the Plaintiff went in 1982 (folio 128 of the Appeal Brief).

(x)               The Substituted Defendants-Respondents confirm their acceptance of Plaintiffs’ Legal Title as follows:

‘The Plaintiffs had purchased the property in suit in November 1978’ [Para 2 b) on page 2 of the Submission made on 16 May 2016]

(xi)             It is submitted that  ‘possession’ in the physical sense is an essential criterion for the Defendants to be entitled to Prescriptive Title.  It is submitted that Legal titleholders have the responsibility to satisfy ownership through the requirements of the Legal pathway which the honourable court has accepted as having been satisfied. Hence it is submitted that ‘possession’ in the above context needs to be taken to be for the direct purposes of ouster.  If  the Legal Titleholders are assessed through the same measure as the Prescriptive Titleholders then that would devalue the legal pathway and would be in breach of the Law that requires Adversity OR Independence. This is because of the Fundamental rule that to relate to something physical one needs to have ‘observed physically’. Hence the measure needs to be the same for one to be more or less than the other. Given that ‘physical possession’ is the measure needed to be used to measure ownership of the 1^st Defendant – one needs to use that measure to ‘relate’ to the Plaintiff in applying ‘majority rule’. When this is used, it automatically rules out ‘Adversity’ – which allocates Equal and Opposite status to the other side. 

(xii)           In addition, 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 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.

(xiii)         It is submitted that under the claim of Independent pathway two parties can occupy the same space at different times. Given that the 1^st Defendant claims to have occupied the space for the purpose of growing ‘Keera’ towards a livelihood – and his honour has accepted it – as per the principle underpinning ‘Native Title’ – both are allowed to  coexist – so long as the respective co-purposes are satisfied.

(xiv)         The moment the 1^st Defendant sold the property – that right was extinguished. There is no evidence before the Court that the said activity continued after 1973 when the big block was partitioned.

(xv)           In terms of residential space – the 1^st Defendant’s address of  23, Nawala Road, Narahenpita is not far from  the property he claims to have occupied. This was the address he confirms to have held at the time he filed the case against Mr. S.Periyasamy and Mr. Fabian Mitchell – the OIC, Narahenpita Police. Hence during the 10 year period preceding the time of Plaintiffs’ action – he did not occupy the said premises for residential purposes either.

(xvi)         It is submitted also – that the validity of the claim of the Defendant gets stronger if the Plaintiff  had ‘abandoned’ the said land. Physical possession by the Plaintiffs is only one way of confirming that the land was NOT abandoned. It is submitted that physical possession could be ‘observed’ but not included in ‘direct calculation’. Under the legal pathway, the observation needs to be escalated  to the higher level – beyond the physical - to recognize confirmations of mental ownership. The evidence presented to Court confirms that the Plaintiffs ensured that the Land was taken care of during their absence from Sri Lanka. The validity of this has not been contested  by the Defendants. In fact it is through such instruments that the Defendants – including the Substituted Defendant-Respondents have claimed that the Plaintiffs did NOT possess – evidence listed at paragraph 4 of the Respondents’ submission of 16 May 2016.

(xvii)       The Substituted Respondents have NOT disputed that Mr. T.Balakrishnan was the Plaintiffs’ General Attorney from 1989 and in particular in 1992 when the Trespass complaint to the Police was made by Mr. Balakrishnan. Their acceptance of  this arrangement is confirmed through their conclusions  5& 6 on pages 3 &4 of their submission dated 16 May 2016:

‘5. Therefore it is respectfully submitted that Balakrishnan’s evidence and the police statement marked “VI” clearly establish that no survey was done by Mr. Sinnathamby and the survey was drawn based upon the plan marked 2332 which was given to him.’

‘6. Therefore it is evidently clear that the Plaintiff has concocted evidence of Mr. Sinnathamby the Surveyor, to break the prescriptive possession of the Defendants’

(xviii)     It is submitted that without acceptance that Mr. Balakrishnan was legally representing the Plaintiffs – the above constructions do not have validity to be presented to Court. The above  therefore is taken as confirmation that the Defendants are not disputing that ‘the Plaintiffs ‘did not abandon’ the said property during the period under review’.

(xix)         What was disputed was the claim of physical entry by the Representatives of the Plaintiffs. It is submitted that evidence of physical  entry / presence is essential only where ouster is claimed to have happened directly by the Plaintiffs through physical force. It is submitted that the above confirms yet again – that the Plaintiffs followed the legal pathway in protecting their ownership title, including through their complaint to the Police which is not disputed. It is submitted that this complaint indicates strongly that the OIC Narahenpita Police against whom the 1^st Defendant instituted Court Action was not acting unlawfully when he is alleged to have acted to evict the 1^st Defendant. Effectively, this officer of  Law & Order was acting to protect the rights of the legal title holders in the area of his responsibility. The requests by the Plaintiffs to call this officer as a witness was objected to by the Defendants and rejected by his honour. The case against this Officer through District Court Matter No. 5812/ZL – effectively confirms lack of respect for Law & Order in the mind of the 1^st Defendant. The 1^st Defendant who claims that he did not ‘vacate’ had the duty to stay within the property by the force of his own Belief. By seeking Court endorsement he confessed to ‘selective-use’ of the legal pathway. In other words – he chose the legal pathway to protect himself but the Possession pathway to claim Title. It is submitted that one who truly believed that the Land was his would have used Equal or higher protection for the Land relative to his physical body. On that basis – if he truly believed that the Land was his – he would have used the legal process to contest the title of the Plaintiffs and listed them as Defendants – the way he listed the Law enforcement officer as the Defendant in the   District Court Matter No. 5812/ZL. It is submitted that that case was to oust the occupier and therefore it confirms that the 1^st Defendant had vacated the land.