Gajalakshmi Paramasivam

09 August 2018

From Carnivorous Tiger to Paper Tiger?

An  Academic reader of my work commented as follows, in relation to my article headed ‘Indian Tamils ! Know your limits please!’:

[A good piece. Some in Tamil Nadu take a "big brother" attitude but not all. Mind you- the Tamil Politicians have never been sincere to Sri Lankan Tamils or their cause.]

I responded as follows:

[Thank you. True – as you say Sri Lankan Politicians including the current lot – have not been sincere to the SL Tamil cause. This is why we need to add our own strength including through Diaspora network]

Reviews are important in Democracy. They help us measure the ‘gap’ between the Supplier and the Customer. Where there is lack of structure to objectively assess performance, the former could be stated also as the Customer in the mind of the Supplier and the latter, the Supplier in the mind of the Customer.  

In Sri Lanka, it is largely the other side in the mind. The media is no exception.

Following is  media review of the Northern Provincial Council presented as follows by Daily Mirror:

[Our sister paper Sunday Times had carried an interesting news item in its July 29 issue about a record set by the Northern Provincial Council (NPC). The story said that the NPC had adopted 415 different resolutions during its five-year tenure that would end in two months, in October. The story further says that this works out to nearly seven resolutions a day on which sittings were held.

It is obvious that no other Provincial Council in the country has been so active in passing resolutions as the NPC has been. Sometimes it is doubtful whether any council has adopted so many resolutions from the day it was first instituted in 1988, consequent to the Indo-Lanka Accord.]

Here the Resolutions are very like the Vaddukoddai Resolution 1976 or its Southern counterparts  - the Resolutions / Decisions made by the Joint Opposition which in its mind lives in a de facto Government state.

Both are Paper Tigers/Lions. Wikipedia attributes to Sri Lanka’s current partner China’s culture to explain the  significance of this title:

"Paper tiger" is a literal English translation of the Chinese phrase zhilaohu. The term refers to something that seems threatening but is ineffectual and unable to withstand challenge.”

Tamil National Alliance’s inability to challenge the Joint Opposition through Article 157A of the Sri Lankan Constitution, confirms its weak investment  in Constitutional Democracy. The way it happened – Article 157A would appear to have been to prevent the formation of a Tamil state. It was born to those who stagnated at the level of  Representative Democracy. The brain that is not challenged would stagnate and deteriorate for better or for worse. A Representative Democracy is a lateral version of Autocracy. Where there is narrow gap between stated policy and the actual structure – such deterioration would expose the Truth and therefore facilitate greater participation at the lower levels. That would be better for the Nation. Where there is wide gap between stated policy and the actual structure, the deterioration would lead to citizens / voters feeling cheated. This would be worse for the Nation, due to the depressive nature of being cheated.

Before TNA moves on to participating in Constitution making – it needs to practice that which is already in the Constitution to protect the earned rights of minorities – that paved the way for TNA to become the Leading Opposition in National Parliament.  Until now, we have not learnt about any move by the TNA leadership to challenge the Joint Opposition status in Court. As per latest reports Mr Sumanthiran of TNA,  reiterated the fundamental principles that an elected party could not be in Government as well as in Opposition Leadership.

But Sri Lanka has particularized this general principle through Article 157 A which to the average Sri Lankan investor in the Constitution, was to prevent the formation of Separate Tamil State

Article 157A states as follows:

(1) No person shall, directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka.

(2) No political party or other association or organization shall have as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka.

As Mr Thambu Kanagasabai has highlighted through his Colombo Telegraph article ‘Sri Lanka’s Sixth Amendment: A Violation Of UN Charter’ published on 15 April 2016, that the above is in principle, a limitation of the citizen’s right to be politically independent through a smaller grouping. In other words, one has to directly participate through National level Politics in which invariably  minorities end up as juniors. Article 157 A however applies equally to majority who openly claim status purely on the basis of current majority numbers, with no connection to the Sovereignty of the citizen. Purely on numbers / body strength –one is rarely equal to another.

Tamil politicians as highlighted by my valuable reviewer and as Gandhi said  about the Indian Political leaders of his time in relation to the British – wanted to take over power from Sinhalese. But that was also majority power. Gandhi practiced Direct Democracy as an individual. Hence the need of the junior-most Indian became Gandhi’s need. Adherence to one’s Truth despite trauma because of it – invokes the Sovereign powers of every citizen one feels part of in one’s heart.

This morning I was blessed with another confirmation of the return for such an investment I made in the University of NSW and beyond, through Constitutional Democracy - which eventuated in my book ‘Naan Australian’.  This morning’s  blessing happened through the news report by SBS ‘International student bashed with knuckle dusters on campus’. Once Truth is known at institutional level – the individual has the opportunity to prevent becoming a victim of that system. Truth naturally brings good order.

If we therefore take Article 157 A, as the True desire of Tamils who gave birth to Vaddukoddai  Resolution and the true fear of  the Sri Lankan Government which failed to protect Colombo Tamils in July 1983 from majority force strengthened  by arms – that is Lesson / True knowledge about ourselves. Article 157 A confirms also our gap between Global theory and Local practice. It’s that gap that when neglected makes the law mere paper power.

At least now, TNA could file case against Joint Opposition as per the following provisions in the Constitution:

[157A. (1) No person shall, directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka.

(2) No political party or other association or organization shall have as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka.

(3) Any person who acts in contravention of the provisions of paragraph (1) shall, on conviction by the Court of Appeal, after trial on indictment and according to such procedure as may be prescribed by law, -

(a) be subject to civic disability for such period not exceeding seven years as may be determined by such Court ;

(b) forfeit his movable and immovable property other than such property as is determined by an order of such Court as being necessary for the sustenance of such person and his family ;

(c) not be entitled to civic rights for such period not exceeding seven years as may be determined by such Court ; and

(d) if he is a Member of Parliament or a person in such service or holding such office as is referred to in paragraph (1) of Article 165, cease to be such Member or to be in such service or to hold such office.

(4) Where any political party or other association or organization has as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka, any person may make an application to the Supreme Court for a declaration that such political party or other association or organization has as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka. The Secretary or other officer of such political party or other officer of such political party or other association or organization shall be made a respondent to such application.

(5) Where the Supreme Court makes a declaration under paragraph (4) in relation to any political party or other association or organization, in pursuance of an application made to it under that paragraph –

(a) that political party or other association or Organisation shall be deemed, for all purposes to be proscribed and any member of such political party or other association or organization, who is a Member of Parliament shall be deemed to have vacated his seat in Parliament with effect from the date of such declaration, and any nomination paper submitted by such political party or other association or organization shall be deemed for all purposes to be invalid ;

(b) any person who holds office or is a member of that political party or other association or organization, shall be guilty of an offence and shall, on conviction, by the Court of Appeal after trial on indictment and according to such procedure as may be prescribed by law –

(i) be subject to civic disability for such period not exceeding seven years as may be determined by such Court ;

(ii) forfeit his movable and immovable property other than such property as is determined by an order of such Court as being necessary for the sustenance of such person and his family ;

(iii) not be entitled to civic rights for such period not exceeding seven years as may be determined by such Court ;

(iv) if he is a Member of Parliament or a person in such service or holds such office as is referred to in paragraph (1) of Article 165, cease to be such Member or to be in such service or hold such office.

(6) The execution of any punishment imposed under paragraph (3) or sub-paragraph (b) of paragraph (5) shall not be stayed or suspended pending the determination of any appeal against such punishment or the conviction in consequence of which such punishment was imposed…….

At Provincial level also, the TNA has become Paper Tiger, despite the Chief Minister in North being a member of the Judicial Community. As per adaderana.lk/news headed ‘Wigneswaran and 2 others summoned to court’ :

[The Court of Appeal has issued notice to three individuals including the Northern Province Chief Minister (CM) C. V. Wigneswaran, to present submissions on September 07, with regard to the Contempt of Court charges by failing to carry out a court order.

Provincial Ministers Anandi Sasidharan and K. Sivanesan have also been issued notice along with the Chief Minister.

Judge bench comprising Justices Kumudini Wickramasinghe and Janak De Silva issued the notice, taking into consideration the petition submitted by the former Provincial Minister Balasubramaniam Deniswaran, which accuses said individuals of Contempt of Court. 

Deniswaran states that the Appeals Court had recently issued an interim order against the gazette notification to remove him from his ministerial portfolio. ]

 As per the Constitution, it is the Governor who is lawfully empowered and is therefore punishable for appointments and dismissals. If Mr Wigneswaran truly represents Tamils – he would challenge the Judicial Order through Article 154F of the Constitution – as per which, the Governor is responsible to the Public for the Administrative actions of the Provincial Council and not the individual Ministers – including the Chief Minister. These ministers do not have Administrative powers to appoint or dismiss fellow ministers. Hence the Judgment is bad in law.

If Mr Wigneswaran fails to use the Constitutional authority – Tamils,  will divide into non-violent and violent parts. The former would need to find their own individual strength and stay away from enforcers  - including amongst themselves. If Mr Wigneswaran is true to himself – he would find the courage to challenge his own judicial family that has erred, so Northern Province would confirm practice of Constitutional Democracy.