Saturday 8 December 2018

Gajalakshmi Paramasivam
08 December 2018

The Hon Babasaheb Ambedkar was Foreigner to Sri Lanka

[A senior counsel challenging a contested dissolution of parliament by President Maithripala Sirisena quoted jurist B R Ambedkar who was a key architect of the Indian constitution who warned that there will be attempts to misuse it in the future.] – Economy Next article headed ‘Constitution is not bad, man is vile, Sri Lanka counsel quotes Ambedkar’

Sub judice principles are valid to protect the minds of judges being influenced by forces external to a court environment. They must however be carefully weighed against Freedom of Speech which is a fundamental right  in a democratic system. Opposition lawyer Mr Yogendra reported me to the Mallakam District Court’s  Judge Mr Kajanithipalan on that basis, when I shared my court experience through emails. But he himself had presented to block the inclusion of my husband’s affidavit in the proceedings and the judge also duly ‘dismissed’ my husband’s  affidavit.  To my mind, that had the same effect as a lawyer influencing a judge through media – which necessitated the sub judice rulings.

When the judge hears from the lawyer, details of what happened and why it happened – outside the evidence before the court – including through affidavits by direct participants – the judge’s mind is taken to have been influenced where the judge does not expressly rule it out. Such unlawful infections happen when the Courts are not committed to high level discipline in Administration. This is the case in Mallakam Courts and to a lesser degree in Jaffna High Court. These are areas covered by TNA which does not have Administrative jurisdiction but does have political responsibility. One such leader asked me recently – whether he made such decision – and I responded that it happened in the area of his responsibility and therefore in the absence of any public discussion on that subject matter  by him it was taken as lack of concern.

To my mind, referring to the Hon Ambedkar was inadmissible as he was not Sri Lankan. It was also waste of Court Resources for the Counsel to refer to it unless Mr Sampanthan whom President’s Counsel Kanag Iswaran represented,  had included it in his Affidavit evidence. It would be inappropriate for a lawyer to include political leadership in a Judicial hearing. Effectively it is in breach of the Doctrine of Separation of Powers between Judiciary and the Parliament. Mr Sampanthan could have shown the  connection between his complaint and the values he followed including through Regional and Global governors.

The structure through which Dr Ambedkar groomed and presented himself was different to that of Gandhi. Dr Ambedkar was born in junior caste and Mr Gandhi in senior caste. Mr Gandhi renounced his higher status to become part of the untouchables – to know how they felt. In terms of that structure – Mr Kanag Iswaran’s elder would have been Gandhi. But then Mr Kanag Iswaran does not live as part of the toddy-tapper community in his home area of Sangarathai.  To believe in Dr Ambedkar the appropriate structure would be to become senior – from a lower status community that one is born into – for example – a law abiding militant who successfully rose to the position of minister of law and order.

I did follow in the footsteps of Gandhi with the toddy-tapper community – but had to draw the line when they started taking ‘equal or higher position’ in areas they thought they were the sole owners. When that happens  - I distance myself after facilitating them to recognize their own ‘losses’ . This requires further sacrifices on my part but when I do so in their interest – my returns happen from elsewhere. They get to keep the fruits of my work – not as individuals but as a village/community. Commonness when brought down to the objectively measurable level divides Equally. A junior needs to surrender fully to be entitled to equal share that is greater in value than the surrendered share. A senior needs to surrender to the common pool more than her/his equal share – but in return s/he is senior in status in the common area. Where the common is democratic the status is limited to equal status until known otherwise on current merit. When greater status is not taken – the difference becomes Energy that works the whole. This is what Gandhi had with the untouchables. Dr Ambedkar on the other hand developed the lawful pathway through which untouchables could release themselves from servitude. The two pathways are like Hinduism led by Lord Krishna and Buddhism led by Lord Buddha.

Lawful structures facilitate participation by all those to whom those laws are common. Duties flow due to such structures. In this instance there is also the question of immunity that overrides duty. It is as per one’s conscience. Irrespective of whether Mr Sirisena acted as per his conscience or not – the Court has the DUTY to respect the use of Discretionary powers by a Governor. In many instances Judges are allowed such discretionary powers. In this Fundamental Rights Petition, the other side is not the President due to Presidential Immunity. That confirms that Truth is the reigning Monarch at that level.

Recently when one of my clients said to me that he had asked a close relative who was claiming higher status - whether she did what she did willingly of her own free will-  I said to my client that that was a wrong question to be asked of someone who was claiming current benefits out of past work in another structure. The way to manage that on the basis of Truth is
1.     to activate the old structure mentally and
2.     then ask the question  ‘Did you do your duty?’ \

If yes, then the redemption must flow from that structure taken as a whole. To the extent my client did his part as per that structure – he does not owe the relative any more.
If the answer is No – then the complainant is responsible for any current disappointment.
This is also the way with Mr Sirisena as well as the Petitioners. The benefits accumulated prior to constitutional change should not be claimed in post constitutional change structure. In their minds, the President ought to be respected for his governing status confirmed by Presidential Immunity as spelt out in Article 35 of the Constitution.

The rest of the case is with themselves – as the architects of the current structure.

Where voters at family level treat each other as individuals – without passing their expressions and actions through common structures – the nation needs leaders committed to Truth more than the law. Any good law would merge with that Truth. This is the reason why we have great difficulty in making multicultural laws to regulate our community relationships. It starts with families.

Where politicians fail to connect to the highest common voter they start relying on the law. To the extent Mr Sirisena’s children enjoy status through education – he has the duty to follow the law – so his highest common voter would use intellectual pathway to discriminate right from wrong. If he failed it is the duty of the Supreme Court to bring out that Truth in a language that would be understood by Mr Sirisena’s local electorate. The rest of the lesson will be learnt naturally from voter to voter and electorate to electorate.

Whether the decision to dissolve parliament is lawful or not is in this instance adversarial between law and belief. The judgment is also lawfully structured advice to the Parliament and could not be an order.

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