20 January 2018
TNA’s Political Position – Interlocutory Order
Final Decision by Tamils of North-Eastern Sri Lanka?
Yesterday I was advised by my client that Professor Tharmaratnam walked into the inquiry room in which submissions were being made in relation to accusations made and actions carried out by the Vice Chancellor of the University of Jaffna. The academic who sought my advocacy brought this to my attention. I wrote:
“To my mind – Professor Tharmaratnam came because YOU did not have enough faith to send the submission to the Council members. Professor came for the very reason I have highlighted in the Affidavit – that the lawyers were disrespectful of Academics. He is one of the victims of that kind of suppression. Hence he came. Since I do not know what ‘happened’ – I attribute it to God’s system – through which the Council came to me. Now the Tribunal knows that the Council is awake. So don’t dilute the value of that manifestation and devalue your own returns from this. Professor Tharmaratnam is a Maths Professor and our family has invested deeply in Maths. These are the ways of Nature / Truth to maintain the Cosmic balance. You are not even a Professor in Music. You need to take your position below Professor Tharmaratnam and not equal to him or worse above him”
The academic wrote back and apologized for concluding prematurely. The background to this could be worked out from the following part of the Submission:
Some examples of Governance values in this matter:
16. Prof. V.Tharmaratnam, Council Member (External), University of Jaffna, Sampanthar Candy, Karainagar.
Has wisdom in representing himself in Storer Duraisamy Yogendra & Balasubramaniam Thavabalan Vs. Velupillai Tharmaratnam
17. As per published report Professor Tharmaratnam’s stand as Respondent in the above case in respect to lawyers Storer Duraisamy Yogendra & Balasubramaniam Thavabalan – who are the parallels of the legal officers Mrs Kishore Anton and Mrs K Athithan representing the University of Jaffna Council (including Professor Tharmaratnam) in this current case against Dr Darshanan, was presented as follows:
[The Respondent who is a highly qualified academic and former Professor of Mathematics attached to the University of Colombo and the University of Jaffna, had claimed in his plaint that his reputation and dignity had been injured by certain statements forming part of the pleadings in another action, namely, D.C. Jaffna case No. 130/Misc., which had been filed against him by the said Karthigesu Sivaharan, whose pleadings in the case were alleged to have been prepared by the said Appellants in their professional capacities as Attorneys-at-law.
The Respondent, who appeared in person, conceded that this Bench, as presently constituted, is bound by the decision of the Bench of 5 Judges of this Court in the Rajendran Chettiar case, but strenuously urged that this appeal be referred for consideration by a Bench which would be numerically superior to the Bench that made the Rajendran Chettiar decision, as otherwise, irreparable prejudice would be caused to him. ]
18. It is submitted that the parallel of Dr Darshanan’s matter – as to whether the decision should be made through an Administrative process or Governing pathway, in the above matter was whether or not a decision by a court was interlocutory or final as explained in the following reasoning by the Experts in Law:
[The question must depend on what would be the result of the decision of the Divisional Court, assuming it to be given in favour of either of the parties. If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory. ” Lord Esher, M.R. cited by Hon Justice Saleem Marsoof, P.C., J. in Storer Duraisamy Yogendra & Balasubramaniam Thavabalan Vs. Velupillai Tharmaratnam]
19. It is therefore submitted that when a decision is Administratively incomplete within that Institution, it is interlocutory due to the internal process being incomplete but when that decision is delivered after due completion of the Administrative processes by both sides – it is final. When it is final it is a Governing decision which becomes wholesome at that level and is ready for rebirth in the Higher Court through Appeal process and the party appealing does not require leave to Appeal.
20. It is submitted that other members of the Council such as Dr. Aru Thirumurugan, Dr. Devanesan Nesiah, Mr. N. Vethanayahan & Ms Shantha Abimannasingham P.C. who are known to actively take part in National affairs would be able to relate to this matter through the rulings in the Rajendran Chettiar matter.
21. In presenting the appeal from the order of the Provincial High Court of Civil Appeal of the Western Province (Holden in Colombo) in S. Rajendran Chettiar & Others Vs S. Narayanan Chettiar, Dr. Shirani A. Bandaranayake, is reported to have stated:
After an examination of the aforementioned decisions, Sharvananda, J., (as he then was) had held that for an ‘order’ to have the effect of a final judgment and to qualify to be a ‘judgment’ under section 754(5) of the Civil Procedure Code,
“1. it must be an order finally disposing of the rights of the parties; (emphasis added)
2. the order cannot be treated to be a final order if the suit or action is still left a live suit or action for the purpose of determining the rights and liabilities of the parties in the ordinary way;
3. the finality of the order must be determined in relation to the suit;
4. the mere fact that a cardinal point in the suit has been decided or even a vital and important issue determined in the case, is not enough to make an order, a final one.”
38 .It is submitted that the above is applicable in the case of Governing decisions required by law to be made by the Council of the University of Jaffna. Where there have been Administrative decisions which leave the question of rights and liabilities of one or both parties unaddressed and incomplete, the decision carries with it the characteristic of Militancy – even if the responsible party is the Vice Chancellor and/or the Executive body of the Council.
39.It is submitted also, that this is of value to law academics like Mr Kumaravadivel Guruparan who led the investigating team in this regard in 2012 but whose report was never published for Management or Governance purposes.
40.It is submitted that this could be used for the purposes of improving not only the investment of the University in law and its interpretation by non-legal practitioners but also to help victims of war through investment in Psychosocial problems and opportunities of global standards.
I strongly recommended to my student-client that he forward the submission to the Governing Council of the University of Jaffna which is the Disciplinary Authority in this matter. But my student-client was hesitant to exercise his rights as he had been previously ‘told’ not to do so.
It is understood that in his Affidavit, the Defendant in the above matter stated:
1. During this visit, Mr.Guruparan said that they had come to inquire into complaints from staff and students about my administration. I list a summary of the this ‘investigation’ by that committee:
(i) They said they had come as per the instructions of the Dean of Arts to inquire into Administrative issues. I confirm that they did not say anything about Sexual Harassment.
(ii) Since they said they did not want to go into the office, I led them to Music Lecture Hall 10 – so they could speak to me in private. Later they sought to speak to the staff in the staff room but did not invite me to join them.
(iii) I was not advised by them about whether or not they were going to speak to students. I have no knowledge about any student contact by them and I concluded that they did not speak to students.
(iv) They said words to the effect ‘Some academics have difficulty with Administration. You seem to have such difficulty. It’s your teaching position that gives you your main income. We advise you to therefore voluntarily give up your Acting Head of Department position and keep your teaching position.’
(v) When I asked them, who had sent them and they said Dean of Arts I asked them whether they had any letter from the Dean? - they said ‘no’. I said that I also did not get any letter from the Dean about this. They said that the Dean had given verbal instructions to this Sub Committee of six, about which Committee I also had knowledge of through the Minutes of the Arts Faculty Board meeting.
(vi) Before leaving Mr. Guruparan said words to the effect ‘It would be better for you to give up the Acting Head of Department position because many staff are against your management.’
(vii) I said that if majority are in favour of my management then I see no reason to resign.
(viii) Mr. Guruparan said words to the effect ‘that is not the case because many would remain silent due to fear of persecution by you’
(ix) I said that there was a clear example within the Faculty of Arts where the Dean of Arts was elected by a majority of 1 vote and hence I see no reason why the Faculty of Arts cannot sustain such objections from five staff out of 25.
The Hon Rajavarothiam Sampanthan who is the leader of the Opposition in National Parliament, once raised the question as to how our youth got to be a militant community? I discovered many clues to the reasons through my services to the University of Jaffna through the above matter.
It took me long years of inner search to appreciate that Natural Justice steps in when at least one side is a true owner of the institution concerned. When I assembled peacefully and within the boundaries of the law, to talk to the Vice Chancellor of the University of NSW, I was arrested by the Police for alleged Trespass. This was despite both Chancellors of my time expressing identity with my contribution to the University – Sir Anthony Mason through his law expertise and Dr John Yu through his wisdom in managing multicultural workplace. When I was arrested despite the recognition by both Chancellors, the Truth manifested Itself in support of the true opposition at the level of the custodians of power. They were the migrant staff in Liverpool Clinical School – which was also Equally serviced by me despite the distance I had to travel. To my mind, Liverpool Clinical School is the parallel of Jaffna in the Sri Lankan issue.
Now I realise that the Administration was not able to lift its level of thinking to the higher standards of a global citizen. Chancellors of the Australian Universities seem to be persona non grata and hence did not count with the Police. Likewise the Governors and Chancellors of the Sri Lankan Universities.
The appearance of Professor Tharmaratnam at the inquiry, brought to my mind, a recent domestic example that confirmed to our son that I was his Governing parent. Pradeep picked went out to get us all breakfast and informed me as is our family standard, that he was going out. Later, he came back and said he was going out for a haircut. For some reason I said ‘make sure you take the keys with you’. He said ‘yes’. A few minutes later, he was knocking on the front door and his daughter answered. I learnt that he had come back for the keys that he had left behind! Later I asked him two questions:
1. Q: Did I remind you about the keys when you went to get Breakfast? -
2. Q: Did I remind you about the keys when you went out the second time? -
A: A smile
The unspoken lesson : I am still the parent with Intuitive insight into my son’s mind.
THIS is Governing power. Tamil National Alliance (TNA) likewise has this intuitive power with the Tamil people of Sri Lanka due to our National level investment and beyond. The militancy was to separate. Those of us who contribute to the Independence of Tamils at National and Global levels – will continue to support TNA in its evolved forms and not Mr. Varadaraja Perumal who is part of the militant community and who is reported to be finding fault with the TNA, nor Northern Chief Minister the Hon C. V. Wigneswaran who is reported to have ‘stressed on the need to find a political solution for the Tamils through an International legal framework. Wigneswaran was addressing a special meeting, convened by the Tamil People's Council (TPC) under the theme ''informing people”.’
The Rights of any person/group needs to be confirmed through manifested values that demonstrate the level of realized Independence as an autonomous person/group. In company law – the Public company continues despite the changes in physical form of ownership. Militants who depended on armed power to ‘show’ wins – were limited to their physical powers. They did not represent Tamils of Sri Lanka as a community. They represent/ed militant Tamils. Mr Wigneswaran seeks a legal framework when in Jaffna – the highest representation of Intellectual Independence has eroded to such a low level that the Vice Chancellors would act ultra vires the Law while the Chief Minister is distracted by Political status that would bring global attention. It may be Tamil People’s Council alright – provided it says Foreign Tamil People’s Council. If indeed Mr Wigneswaran had been a true representative of Jaffna Tamils – he would have intuitively picked up the problems at the University of Jaffna and resolved the problem through Governance powers. Every self-governing Tamil is a representative of the true Tamil Community in Sri Lanka.
The reason why a legal framework would not work for Sri Lankans is the lack of Independence of the Judiciary – be it Tamil or Sri Lankan. If former Chief Justice Dr. Shirani Bandaranayake had been truly independent - the lady would have been retained by the current government or hired by Mr. Wigneswaran’s TPC.
Premature award of ‘rights’ would lead to Division, because like money in family – political & legal wins would divide – as illustrated in the Appendix.
Except from the Submission to Tribunal appointed by the Governing Council of the University of Jaffna
.The lay example that best represents this ‘ownership’ value at global level is the legend of two mothers claiming a child – narrated by Wikipedia as follows:
“The Judgment of Solomon: two women each lay claim to being the mother of the same child. Solomon easily resolved the dispute by commanding the child to be cut in half and shared between the two. One woman promptly renounced her claim, proving that she would rather give up the child than see it killed. Solomon declared the woman who showed compassion to be the true mother, entitled to the whole child”
Causal Forces beyond the Control of University Administrators
.It is submitted that this matter is of great importance to the Tamil community as well as Sri Lankan society to appreciate:
(i) Provincial level – whether University of Jaffna represents Self-Governance or Militant leadership
(ii) At Country level - whether we vote for a Unitary State or Federal State or its extreme example of two or more Countries
(iii) At global level, it is about whether Sri Lanka as a State is to be Administered or treated as an Equal to another member of the United Nations.
(iv) At family level it is about whether we live under one leadership as an extended family or whether we spread laterally as autonomous units with Common values – especially when children get married and develop their own family units. The child in the above example is the parallel of : Northern Province (i) , Sri Lanka (ii) , Global minded Public (iii) the Family (iv) respectively, in the above samples.
.In this matter - the child is the University of Jaffna representing the investment in Higher Education by Tamils of Sri Lanka towards Higher mind structure when claiming to be self-governing as a Community.
.It is therefore submitted that if dealt with at the primary level – the smiling woman who would have half the body instead of the Dignity of Motherhood would win. An illustration of how University & Court decisions impact on families that have invested in Higher Education is demonstrated through the following excerpt from Chapter 5 of ‘Naan Australian’ (which has found a home in the National Library of Australia). It is now part of the Library of the University of Jaffna also. The except is the confirmation of a Mother’s role, as contributor to the Higher Education of the family – as recognized by Mr Pradeep Paramasivam – an Engineering graduate of the University of New South Wales and an Architectural graduate of the University of Technology, Sydney:
‘RE: THE INCARCERATION OF GAJA LAKSHMI PARAMASIVAM
To Whom It May Concern:
I am writing this letter to express my concern about the potential incarceration of Mrs. Paramasivam and the great disservice to the community that our judicial system and medical services are doing in handling this matter.
Mrs. Paramasivam is my mother. No son wishes to see their mother in prison and worse still have to hear about the trauma she had to undergo with the threat of forced sedation that was exercised by a doctor at
My mother was both forced to resign and later be unfairly dismissed by the
Following this agreement, the University made no attempt to facilitate a meeting with her, and she had to suffer the indignation of being arrested for trespass in trying to organize a meeting with the Vice Chancellor. The charges were dismissed given she had a lawful excuse to be on the University premises.
After this the university did organize what appears to be token meeting between her and the Vice Chancellor, so as to be seen to be adhering to the Supreme Court order. It is inconceivable that anything could be resolved by such a brief forum and highly reasonable for Mrs. Paramasivam to seek a further audience with the Vice Chancellor. Her attempt to do so has resulted in the current arrest for trespass and the sickening guilty verdict.
It is truly shameful that a person who has stood by their principles is being humiliated in this manner. My mother, Mrs. Paramasivam, has been uncompromising in maintaining her honesty, and it is disheartening to see her being punished for this. Whilst, being family, I would blindly support my mother, in this instance I do not need to be blind, because being aware of the matter, it is clear that she has been treated unjustly. She has my full support and admiration, simply because she has her integrity.’] Chapter 5 (page 79 ) Naan Australian
It is highlighted that the Defendant has acknowledged at paragraph 2(i) of his Affidavit dated 04 January 2018, under - ‘Balancing the Footing’ - the involvement in this matter, of the author of the book ‘Naan Australian’ which book is also about the dignity of a woman – especially an educated woman to whom also Jaffna is ‘home’. From the victim’s point of view – Dr Darshanan identifies with many common aspects to know that he is not alone.