05 December 2018
Is Law not Putty in the hands of Lawyers?
[“There are several pending political cases in the Supreme Court and the Court of Appeal. These are not related to murders, robberies or rapes. They are political cases. Now, these Courts have given Interim Orders in some of those cases. I respect and accept the decisions of the Courts wholly.
But the general public has various opinions on the orders of the Courts. Some people say that the Court is completely independent while others claim that the Court is biased. Some even say that a Temple’s Chief Incumbent is delivering a sermon which is supposed to be delivered by a Chief Prelate. However, during this political turmoil we have to behave in well mannered fashion, protecting the Constitution,” the President said.] Ceylon Today article headed ‘Ranil destroyed me to a certain extent – President’
As opposed to the above we have the following from a senior Tamil lawyer:
[President’s Counsel K. Kanag Iswaran said yesterday the Constitution was not clay in the hands of contesting parties to be moulded as he or she sees fit while the constitutional language sets the limits of interpretation which aspires to give constitutional unity and harmony.] Daily Mirror article headed ‘Constitution not clay in hands of contesting parties: Counsel’
Let us examine, whether Mr Kanag Iswaran who has a family home in Sangarathai, Vaddukoddai not too far from our family temple, has paid his dues to the laws of Thesawalamai - especially those provisions that are relevant to inheritance – as practiced by the local folks in his ancestral home?
Does Mr Kanag Iswaran know whether the local councillor of that area understand the law of Thesawalamai. As per my observations – that is not the case. They rule as per their personal thoughts. To the extent their thoughts are based on belief, they would not contradict the conclusion reached through any reliable law. That which seems reliable to Thunaivi folks would not seem reliable to Sangarathai or Vaddukoddai folks. Hence when the two are together in a group – Truth must be upheld above law for true harmony to prevail.
Given that Mr Sirisena is not claiming to be conversant in the laws of the country – it would be unjust to expect Mr Sirisena to appreciate that he ought to respect the law on equal basis as his cultural belief. In his mind, as per his experience he was the ‘boss’. He appointed the and therefore he had the authority to dismiss. Article 107 provides for appointments in the case of Judicial leaders:
107. [ (1) The Chief Justice, the President of the Court of Appeal and every other judge of the Supreme Court and of the Court of Appeal shall, subject to the approval of the Constitutional Council, be appointed by the President by warrant under his hand. ]
The parallel of the above in terms of the Prime Minister is stated in Article 46(4)
(4) The President shall appoint as Prime Minister the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament.
The question is, if majority Sri Lankans ‘believed’ that the person appointing is senior to the appointed – then are the above valid in upholding the Sovereignty of Sri Lanka?
In order for the status of law to be more valid than the status of cultural belief, the law needs to be practice at a deer level than culture by that side. Likewise, between two cultures. If for example Hindus believed more deeply than Buddhists – then in a multicultural group they are entitled to lead where there are no Equal Opportunity laws that prohibit such leadership.
As per my experience, lawyers and judges of the Jaffna Courts have very little respect for Thesawalamai Law. Those of us who actually practiced it have greater authority to judge than those who have made merely intellectual investment. Under the circumstances the Courts have the duty to become Facilities and shall NOT TELL the deeper practitioner. If they did tell – then they earn negative karma.
The dowry system is actively practiced within the Sri Lankan Tamil community. As per the fundamentals of Thesawalamai law – daughters who claim dowry are not entitled to Muthusum / ancestral wealth. When daughters ask and get both – dowry as well as Muthusum - it would naturally rob sons of Equal entitlement. Such daughters are NOT entitled to equal footing especially in groups where there are unmarried sons and/or men who did not ‘take’ dowry when they married.
The Jaffna judges killed the diversity of Thesawalamai law by facilitating double dipping. It happened during the reign of Mr Wigneswaran who is reported to have stated recently ‘Burn my effigy a thousand times but don’t burn policies of Tamil people.’ What did Mr Wigneswaran do when the Tamil legal fraternity trampled to death, Thesawalamai Customary Law and upheld equal distribution of Muthusum? Thesawalamai Law is heritage of Northern Tamils which is being destroyed by Tamil legal fraternity. Those of us who sacrificed our shares so our siblings would get married, continue to carry the essential value of that heritage. Mr Wigneswaran glorified one of his own group as follows:
Ms. Nagendra has delved deep into the subject of matrimonial properties and inequality of sexes armed with proper understanding of these differences in values, in social norms and perspectives. This recent publication dealing with certain aspects of Thesawalamai is logically designed, cogently discussed and makes good and interesting reading. It is a worthwhile adornment to the libraries of both lawyers and others.
How can one blame the President for not trusting the law and the legal fraternity? If majority Sri Lankans are driven by local cultural habits because they do not trust the judiciary – then the question arises as to whether it is Dharmic to use the law to judge elected leaders purely for the purposes of ‘rights’? Should elected leaders be judged only in relation to actions that cause measurable damages? It’s a question of whether the chicken caused the egg or the egg caused the chicken?