Friday 7 December 2018

Gajalakshmi Paramasivam

07 December 2018

Australian Paal and Sri Lankan Kanchi

It is not uncommon for us to express opinions on manifestations by other cultures. That which is manifested by one Nation should first be observed by another and then raised on the basis of belief in the issue by the observed, to the level common to both.

To my mind the Sri Lankan Constitutional crisis was strongly influenced by failure to  pool common investments by junior side surrendering to the senior side. In most religions,  fasting helps surrender to the higher self. This is different to producing the outcomes and then enforcing the finished product on the other.  The depths of our investments in law would determine the validity of our interpretations. One who has status needs to be mindful of not overriding the interpretation of another who is senior by status in that issue.

Dr Laksiri Fernando, for example presented the following through  his Sri Lanka Guardian article ‘Evolving Disaster: Agreeing to Call for Election Might be the Best’

[The controversy is because of the unexpected and the dramatic nature that it had happened apart from its secretive or ‘conspiratorial’ nature. Such dramatic changes have not been uncommon in Westminster model democracies as well. Among many examples, the dismissal of the sitting Prime Minister, with even a majority in Parliament, was enacted in 1975 in Australia.]

Professor Suri Ratnapala who is also Australian of Sri Lankan origin states as follows :
[The purpose of this note is to clear up another confusion. Hon Mr Mahinda Rajapaksa, among others, have cited as a precedent the dismissal of the Australian Prime Minister Gough Whitlam and the dissolution of both Houses of Parliament by the Governor-General in 1975. This involves serious misunderstandings of the facts concerning the dismissal and the relevant provisions of the Australian Constitution.] Sri Lanka Guardian article ‘Constitutional Paradox in Sri Lanka’
My interpretation, to my mind, was closer to that of Professor Suri Ratnapala but is more valid (as per my mind) because it comes naturally as a lay common person.
Those with titles usually are handicapped by their ego which prevents them from seeing the ‘other’ side at equal level. The Daily mirror reported as follows about Professor Ratnapala’s involvement in the improvements to the Sri Lankan constitution:
[Emeritus Professor of the University of Queensland, Australia and former Senior State Counsel, Professor Suri Ratnapala is among this panel of intellectuals, who have been giving technical advice to the Steering Committee as well as the other Sub-Committees. – Article headed – ‘The Constitution’s tricky issues: Prof. Suri Ratnapala’ – date 01-11-2016
The question that comes to my mind is whether Professor Ratnapala ensured that the President understood the Articles relevant to his position in the language that would facilitate returns to all investors in that position? The example that comes to mind is the song Paadariyen Padippariyen ( ) in the Tamil film ‘Sindu Bairavi’ by great K Balachandar.

Law experts like Professor Ratnapala are the parallels of the musicians singing Telegu songs (mari mari nine) to Tamil audience who do not actually participate in the experience. The parallel of the Tamil audience are the voters of Sri Lanka – including the politicians who have not invested formally in the study of law. The young lady from the audience who is naturally interested in music and appreciates music is able to sing in Tamil to the same audience using simple language that they understand. The reason is the depth of belief without in music without status ego. Hence the singer is part of the audience also. That is democracy.

Mr Sirisena could not sing the Sinhalese version of the Constitution because he lacked depth of belief in law, including in Kandyan Law.

Even the Attorney General revealed lack of  depth by stating that the Supreme Court did not have jurisdiction to ‘entertain petitions questioning the conduct of the President’, despite Article 35 providing as follows:

 Provided that nothing in this paragraph shall be read and construed as restricting the right of any person to make an application under Article 126 against the Attorney-General, in respect of anything done or omitted to be done by the President’
An ordinary citizen does not need to understand the law. But those who have status through proficiency in law – need to understand the laws relevant to their positions.
Professor Ratnapala explains in his analysis:

[According to s 64 of the Australian Constitution, the Ministers, including the Prime Minister, serve at the pleasure of the Governor-General. The President of Sri Lanka has no such power. He or she must choose as PM a member likely to command the confidence of the House who can then be dismissed only by Parliament.]

The actual wording of Article 42 (4) is:
[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. ]
To my mind, ‘in the President’s opinion’ is the parallel of ‘at the pleasure of the Governor-General’. If Professor Ratnapala’s presentation is valid – Article 42(4) would state as follows:
[ The President shall appoint as Prime Minister the Member of Parliament, who, has demonstrated the confidence of Parliament through  majority vote. ]
THAT is the parallel of singing in Tamil to a Tamil audience.  Professor Ratnapala ought to have become Sri Lankan in mind when contributing to Sri Lankan law. Likewise, Professor Laksiri Fernando ought to have become Common Australian in mind  to interpret the Australian Dismissal – as if he himself was dismissed and experienced the pain of the Hon Whitlam’s common voter. Belief makes us Common. Without belief we need to reveal our reasoning – on the basis of common theory / law, to prevent plagiarism.

If the Presidency is non-executive – then the President needs immunity.

The current president has confirmed the need for separation of powers between cultures which in effect is also the claim of minorities who have been unjustly discriminated against. Those who compare various manifestations in other nations – forget that Sri Lankans have to practice ‘Buddhism Foremost’ as per Article 9 of the Constitution. Which is the parallel of that in the Australian Constitution? Each part must be passed through to its respective fundamentals on which the whole has been developed. Section 64 of the Australian Constitution should not be related directly to Article 42 (4) of the Sri Lankan Constitution. The saying in Tamil is that the pain of one who complains that the rice soup/kanchi  is lacking in salt is the same as the pain of one who  complains that his milk is lacking in sugar. It is taken as the same because soup and milk respectively are staple diets for diverse  cultures. Australia is milk and Sri Lanka is Kanchi. 
When discussing Sri Lankan constitution we need to be as humble as the Kanchi drinking Sri Lankan.  

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