Monday 16 July 2018

Gajalakshmi Paramasivam

16 July 2018

Excessive Sub-Judice Protection for Judiciary ?


A  Tamil Diaspora Member (TDM) asked me yesterday about my thinking on equal opportunity system:


TDM:  I do not know who you are or your backgrounds or whose agent you are.
Gaja: I am my own agent. I take it you are someone else’s agent.
 TDM:  But you are thinking on religious examples / questions.
Gaja: That’s ok. I’ll try my best to show the logic as I see them
TDM: And l do not understand how being an opposition leader gives equal power when the opposition leader has no modifying power nor the voting power. He is an opposition leader by name.
Gaja: The government is also likewise in name only. Even when they pass laws and make decisions – others down the line have to execute / implement and across the line observe. Ultimately it’s the People who work the system. If there was a Tamil Eelam country that is how that also would work . In democracy this is more transparent than in autocracy.  
 TDM:And particularly in this government the opposition Sinhalese have more electoral seats to become an opposition party. So Sampanthan as opposition leader is a cunning act by Ranil and Maithiri and secondly the opposition post is a show case post to show the outer world that Tamils have equal rights.
Gaja: The people delivered this outcome. Ranil and Maithri are part of them. When they are not – the People will stop listening to them. Then we will have to rely on local powers including our religious powers – as Mr Wigneswaran is also showing.
TDM: Secondly on the development task force, what do you expect when the military occupation force holds the lands and fishing region. If the government wants a real economy project the armed forces should be removed or brought to a minimum and all the economics run by them given to other local authorities.
Gaja: We must then export more graduates and import more investors –like the Thais and Norwegians.
 TDM: And to have a true well equalled economic development project there should be a real political solution. The Provincial government with the central holding control is not a true real political solution. It's only through that and leaving the development to the regions to control land and security issues can  a true equal development project happen. 
Gaja: Says who? If Tamil Provincial Government had wisdom in business – then we could leave politics to politicians and help the people resolve their differences internally – including through their respective religious commonness.

TDM: So holding hands with a state which is structurally destroying what you yourself call the Jaffna Heritage does not bring solutions.
Gaja: Jaffna is open to others holding our hands. That is our strength. Is Mr Sirisena not holding Mr Wigneswaran’s hands in the picture that I sent you yesterday?
 TDM: And at last on my point
 Sri Lanka cannot be a Buddhist Hindu state. It can only be a state where all religions are included as equals.
Gaja: No dispute there.
TDM:As per  my memory Buddha - son of a king left his palace seeing the sufferings of all people
Gaja: Agree
 TDM:And he taught his philosophy
Gaja: Agree
TDM: So a constitutional writing to rule Sri Lanka as a non religious secular state can be the true answer to all of this.
 Gaja: Just ignore the religious reference and practice the secular parts of the Constitution. That would be more than enough for you or your followers to live independent of Buddhists and therefore Buddhism driven politicians. Your right in this regard is spelt out in articles 10 and 14 of the Constitution of Sri Lanka
TDM: Or Tamil Eelam can be a non religious secular state for all people. 
Gaja: Then obviously Mr Wigneswaran who chants ‘Guru Brahma’ is not part of Tamil Eelam – according to your rule.




Relatively speaking, Mr Wigneswaran has spoken about the Doctrine of Sub Judice in his weekly response dated 14 July 2018, to the People. In that explanation, Mr Wigneswaran shares his own experience as part of the Judiciary – when he successfully prevented a senior judge from delivering an order that to Mr Wigneswaran was not executable.


During his tenure as Chief Minister of Northern Province – the Mallakam District Court as well as the High Court of Northern Province did deliver such an order – despite our strong objections through Due Processes. It’s a simple case of Judicial Administration. The applicants in a testamentary matter claimed that they did not need Administration and asked only for Certificates of Heirship. We objected and one of the bases was that the Petitioners had already shown deductions owed to creditors (themselves and their lawyers) in the Petition. How can one execute that order to issue certificates of  Heirship without setting aside those deductions?


Eventually when the Jaffna High Court delivered its verdict – upholding the Mallakam decision – it was still fundamentally flawed but workable because the other side lawyer stated that Administration would be sought in UK in relation to the UK assets. All deductions owing to creditors therefore have to go through the UK Administrative process. But that was not in the primary application to the Mallakam Courts and hence did not qualify to be included as an addition in the Appeal process.


The Chief Minister could have provided advice to Northern Judges as part of his services to the North. If he truly wanted to share his wisdom in Judicial administration, with the common public of Northern Sri Lanka, he would have found plenty of opportunities to do so, including through our matter after it was completed and  details of which were shared with him also regularly through my public reports. Since there was no improvement – I concluded that there was no such service from the expert.


Fundamentally the doctrine of Sub-Judice applies to any decision making by an independent person/group. Applying that to the Chief Minister’s rejection  of the opportunity to join  the Presidential Task Force on economic development of the Tamil-speaking Northern and Eastern Provinces, saying that the Tamils needed a political solution for their long-standing problems  before they embark on economic development, one is entitled to conclude that the former Supreme Court Judge failed to uphold the Administrative parallel of the doctrine of Sub-Judice in terms of Political solution at National level – for which the TNA holding Opposition position in National Parliament is responsible. That was never the responsibility  of Northern Provincial Government – which satisfied the thirst of those seeking separation. It is unprincipled to make it one now.


In terms of the Tamil Diaspora Member’s question – which may also be the question in the minds of majority Tamils about the power of Opposition – the position taken by the Opposition needs to be Equal. The work done by the Opposition needs to be of a higher standard than that of the Government to be of a value to more than match the ‘gap’ that gave the Government majority advantage. In other words – deeper work is needed to offset the surface majority.


Where this is achieved solely by minorities – their intellectual powers would be seen to far outweigh the Government’s – especially where the Government is not obstructed to produce its outcome at early emotional stages. . Where this is achieved in partnership with majority – the majority race would divide – as happened in Sri Lanka in 2015. To the extent Tamils & Muslims in multicultural areas maintain higher standards than their Sinhalese counterparts – but do not practice reverse discrimination at emotional level – they would have the natural powers to separate majority into positive and negative forces. To the extent we the minority powers withdraw benefits at lower levels – such as Provincial Councils – that power is diluted and diffused by us. That was the damage by both Mrs Maheswaran and Mr Wigneswaran in Northern Province.


One who raises the value of her/his work will make the connection between cause and effect at Energy (root) level. Others will tend to wait until they ‘see’ outcomes which are likely to turn against minorities due to stronger emotional power by majority as happened in South Africa which lost a good proportion of its intellectual heritage after Apartheid system came to an end before this gap was filled – voluntarily by the citizens of minority races.

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