Thursday 20 December 2018

Gajalakshmi Paramasivam

20 December 2018

Dual Citizenship and Dual Political Membership

In marriage we have three levels :
1.     De facto
2.     Structured as per law and/or culture
3.     Divine marriages known in Hinduism as Gandharva Marriage
Likewise in Governance:
1.     Between the physically affected parties only
2.     Structured as per law and/or common culture
3.     Truth and only Truth based.

The Hon Rauf Hakeem, leader of Sri Lanka Muslim Congress which is part of the UNF Government that recently  fought in courts to confirm its democratic rights is reported to have stated as follows:
[The country's Constitution is not a document to be used or abused according to the whims and fancies of three people - President Maithirpala Sirisena, Prime Minister Ranil Wickremesinghe and Opposition Leader Mahinda Rajapaksa ] Daily Mirror report ‘Constitution not for personal agendas: Hakeem’
I would add to the list – speaker the Hon Karu Jayasuriya who did not have the essence of the Supreme Court ruling which led to Mr Rajapaksa stepping down from the position of Prime Minister. By accepting the position in the first instance, Mr Rajapaksa confirmed lack of wisdom in managing a democratic parliament. The Parliament is the Governing Council of People who believe in self-governance. Governance power is the basis for law-making. Administrative power is to determine the flow of costs and benefits on merit basis to maintain that Governance power.
In our Appeal to the Northern Civil Appellate High Court, the judges led by his honor Justice Elancheleyan, distinguished between Succession and Administration as follows, using Ratnasingham Vs Tikiri Banda Disanaike and Others

[It is submitted, on behalf of the 02nd Respondent-Respondent that even though, the value of movables in Sri Lanka is about less than a Million the Law does not clearly permit the monies lying in Barclays Bank to be subjected to jurisdiction and administration by the Sri Lankan Court. It is for the Probate Court of U.K.  to administer same. It is untenable to combine, the monies lying in U.K. and in Sri Lanka, to make it appear, the value of Assets (movable are more than Rupees Four Million Rs. 4,000,000/-) and to claim for Letters of which is contrary to Law
This had been fully analysed by the Late Supreme Court Judge Hon Dr. Mark Fernando in his judgment Ratnasingham Vs Tikiri Banda Disanaike and Others – report in 1998 1 SLR]

Succession is about share of  heritage and is the parallel of Governance power in Parliament inherited by the elected members Parliament from the People.  One who inherits greater share leads. In Thesawalamai this is sons/brothers for males. Administration is about determining how much of the Estate is to be distributed to the shareholders / heirs after settling (receiving and paying) all outsiders and post-death costs and income. Internal Administration of Parliament needs to be restricted to this.
The position of Leader of Opposition is determined by Succession. The group that  believes that it is Sovereign and has second largest share of the People’s Common Estate must take the position of leader of opposition. It cannot be ‘given’ / ‘allocated’ by the Speaker who is the parallel of the Registrar of Court. Yet, that is what Mr Karu Jayasuriya did to which TNA has raised objections.
When young Tamils keep accusing Tamil political leaders of getting cheated in those in government, I thought it was unfair. But now I realise that those who passed on their heritage to these leaders, would be hurt when the latter are passive about such ‘takeovers’ by those who take majority as high status. Even though Mr Sumanthiran raised objections, I could not, through him, identify with the deep hurt that I felt when I first read the news. Mr Karu Jayasuriya clearly demonstrated bias towards TNA which amounts to racism. The fact that Mr Jayasuriya found ways of defending UNP’s position which was upheld  by the Supreme Court – confirms how hurt he was by what had happened to his party. But when it came to TNA – he could not find any belief in him to be affected adversely by the claim that that seat belonged to Mr Rajapaksa’s group. Professor Wijesinha said it and Mr Jayasuriya delivered. One does not need to have heard such expressions. They are in a culturally common free environment and hence they would infect each other. It is to prevent this that there is Equal Opposition in Parliament.

Truth always is present in our manifestations – often as an invisible influence. In our above case I was deeply hurt and astonished that even the Civil Appellate High Court judges did not disallow the deductions before ruling ‘No Administration’ was needed. The deductions claimed were for legal expenses and creditors who are also spouses of the two female heirs (who already got dowry but claimed equal share as sons – in breach of Thesawalamai law). We were not asked by the daughters who had custody of documents, which meant that we were blocked from any creditor claim. Since we have asked for Administration – in our mind, we did not have to claim it before the matter was concluded. During my last visit – I found out that the Registrar of Mallakam Court had become the pawn through whom the Petitioners were actually taking over Administration. The parallel of that in the parliament is Mr Rajapaksa moving through the Speaker.

A Parliamentary party  must know its place in parliament through its own Truth. SLFP member of Parliament Mr Mahindananda Aluthgamage, who was Minister in the Rajapaksa government has demonstrated serious lack of governance power revealed as follows by Daily Mirror:

[Former President Mahinda Rajapaksa was still a patron and a member of the Sri Lanka Freedom Party (SLFP) and therefore, there was no obstacle for him to be appointed as the Opposition Leader, MP Mahindananda Aluthgamage said today.
He said all SLFP MPs, who backed SLPP including Mr Rajapaksa continued to pay their membership fee to the SLFP and that they had not withdrawn from that party.
“Neither have we withdrawn from the SLFP nor we were expelled from it. All of us, including Mr Rajapaksa, still pay the membership fee to the SLFP. Last month Rs.3,000 had been deducted from Mr Rajapaksa’s salary to the account of SLFP as membership fees,” he told a news briefing.]

As highlighted by Mr Hakeem, article 99 (13) of the Sri Lankan constitution states as follows:
[(13) (a) Where a Member of Parliament ceases, by resignation, expulsion or otherwise, to be a member of a recognized political party or independent group on whose nomination paper (hereinafter referred to as the “relevant nomination paper”) his name appeared at the time of his becoming such Member of Parliament, his seat shall become vacant upon the expiration of a period of one month from the date of his ceasing to be such member ]

To be member of two political parties at the same time, is like dual citizenship. Policy makers have the duty to give form only through the current ownership. Hence dual citizens are barred from being elected to represent the People of Sri Lanka in Parliament. In democracy – each electorate is taken to be a sovereign unit. Likewise each political party is taken to be sovereign. Like us, global citizens, Mr Rajapaksa could become in his mind, part of UPFA which may cover SLPP also. But as confirmed by the above article, his seat is that of SLFP’s and by ‘otherwise’ – i.e. – becoming SLPP member, he vacated his parliamentary seat.

 Now that we know the lack of commitment to the constitution by even the Speaker – it is important to have readily understandable formulas - Standing Orders in such issues.  

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