Gajalakshmi Paramasivam

10 December  2019

LAW ACADEMICS AND LEGAL PRACTITIONERS

When someone draws my particular attention to a news report – I pay attention as per the person who sends me the communication and then the subject matter. Recently, such a communication was forwarded to me in relation to Dr Kumaravadivel Guruparan with reference to his dual role. Tamil Guardian reported as follows:

 [Sri Lanka bars academics from practising as lawyers

Following a decision to the head of law at Jaffna University Dr Kumaravadivel Guruparan from engaging in private legal practice, Sri Lanka’s University Grants Commission (UGC) has announced that all academic staff members can no longer practise as attorneys.

In a circular released last week, the UGC said that “approval cannot be granted”, despite a previous 2013 decision, which said academics could practise as attorneys, if “such work is not an obstacle for his/her routine duties”.

No further explanation was provided by the UGC.]

When I assisted Dr Darshanan last year to present his facts and arguments as per the written law, I learnt about Dr Kumaravadivel Guruparan being the head of law at the University of Jaffna. As per that information - Dr Kumaravadivel Guruparan was a gentleman. When asked why Dr Guruparan had not headed the University Management’s team in the trial - the only reason that Dr Darshanan could think of was that the rules required the inquiring officer to be senior to the one against whom charges had been made. It made sense.  In the process of advising Dr Darshanan I learnt the following provisions in the Universities Act:

Section 45 of the Universities Act Universities Act No. 16 of 1978  :

45. (1) Subject to the provisions of this Act, the Council shall exercise the powers and perform and discharge the duties and functions conferred or imposed on, or assigned to, the University.

(2) Without prejudice to the generality of the powers conferred upon it by subsection (1), the Council shall exercise, perform and discharge the following powers, duties and functions:-

(xii) to appoint persons to, and to suspend, dismiss or otherwise punish persons in the employment of, the University:

Provided that, except in the case of Officers and teachers, these powers may be delegated to the Vice-Chancellor;

In the case of Dr Darshanan, the disciplinary actions were undertaken by Professor Vasanthi Arasaratnam – then the Vice Chancellor of the University of Jaffna. Even though this was highlighted by the team representing Dr Darshanan – claiming that it was in breach of the above section of the law, the University Council made the decision to uphold those proceedings.

As per my discovery, Due Processes & Laws carry the Energy of the original discoverers to their heirs. All those who respect Due Processes & Laws are heirs and are entitled to access that Energy. In the case of strong commitment – the Energy comes to the heir.  I did not find any input into the above inquiry by  Dr Kumaravadivel Guruparan. Outsiders represented the University Administration.

As per the above report by Tamil Guardian:

[Guruparan was barred from engaging in private practice following pressure from the Sri Lankan military, after he took up a public interest habeas corpus case into the 1996 disappearance of more than two dozen Tamil youth. The incident drew outrage from around the world, with hundreds signing a statement condemning the ‘threats, harassment and reprisals’ against the prominent human rights lawyer and the international human rights organisation Front Line Defenders has issued an urgent appeal.]

The above confirms clear breach of the principles underpinning the Doctrine of Separation of Powers between the Judiciary and the Executive.  The Executive is limited to using the law  to mark rights and wrongs whereas the Judiciary has the duty to show how the causes and the effects upheld by their judgment, connect. In doing so the Judiciary has to have belief in the makers of the law – the Legislature – as if they are the makers. Without such belief they are mere extensions of the Executive. The Judiciary has to also have belief in its ancestors to connect to their mind structure through which their judgment is delivered. That is how we invoke ancestral powers.

In presenting his paper ‘Customary law of stateless nations: some observations on the question of who can reform the Thesawalamai, the customary laws of the Tamils in Sri Lanka’ – Dr Guruparan states:

[Despite the definitive trend towards consolidating the Sri Lankan state as a Sinhala Buddhist state in the post-colonial context, the legal system was left intact in its plural character. In fact, the current constitution seeks to even prevent fundamental rights provisions in the constitution from overriding customary law principles in the event of clash. However, there have been calls for reform, which have focused mainly on enacting a uniform civil code. This project of uniformization advertently or inadvertently aids the monist consolidation of the Sri Lankan state. This paper argues that the Sri Lankan Parliament and courts lack political legitimacy to amend the Thesawalamai, which the paper characterizes as pre-state law, leave alone abolishing it and enacting a uniform civil code. The legitimacy deficit of Sri Lankan institutions is built on the long history of brutal repression of the Tamil struggle for self-determination. The paper suggests that a viable, politically legitimate process for reforming the Thesawalamai can only be put in place if the national question is settled to the satisfaction of the Tamil community in Sri Lanka. It further suggests that placing the responsibility of amending the pre-state law of the Tamils in the hands of institutions which they consider to be politically legitimate and representative is the best path to reforming the Thesawalamai.]

My experience of Thesawalamai connected me to the minds of its authors – our ancestors. Uniform Civil Code is based largely on Administrative laws  introduced later. Likewise the Common Law ruling. The Mallakam District Court as well as the Jaffna High Court in which our side was represented by Attorney at Law Manivannan who is understood to be professionally close to Dr Guruparan, upheld the common law basis of succession – that the intestate estate of an unmarried man without children – was to be shared Equally by all siblings – including those who received dowry. Our Appeal to the high court resulted in the ruling that the Administration of the monies in the UK – was the responsibility of the UK authorities . The case law used was Ratnasingham Vs Tikiri Banda Disanaike and Others. 

At the end – Judge Elancheliyan ruled that our appeal be dismissed and the files be sent back to Mallakam District Court.  The other side sought only Certificates of Heirship and opposed Administration which we sought. When we applied to Mallakam District Court for our certificate – that application was set aside and the matter continues to be unresolved.

Whether we use Civil Procedure Code or Thesawalamai order – the practice and theory would show the order in which our work  outcomes are arranged. When we arrange them as per our true motive and commitment – the end would also be truth. Truth has perfect order.

Dr Guruparan states as follows:

[The paper suggests that a viable, politically legitimate process for reforming the Thesawalamai can only be put in place if the national question is settled to the satisfaction of the Tamil community in Sri Lanka. It further suggests that placing the responsibility of amending the pre-state law of the Tamils in the hands of institutions which they consider to be politically legitimate and representative is the best path to reforming the Thesawalamai]

My question is ‘who/which group within the area covered by Thesawalamai has the true authority to undertake such a change?’ – In terms of Politics – we had Mr C V Wigneswaran as Chief Minister who to my knowledge made zero contribution to review judgments recently made through Thesawalamai law – so to his juniors who made mistakes such review would be lessons that would prevent such mistakes. Those who receive positive review would then feel good about themselves.

The need needs to stem from the People concerned. Where it is driven by the desire of those in high positions – it becomes abuse of power – as Article 9 of the Sri Lankan constitution has become. When there is a law – the executive would need to get more rights than the one over whom authority is exercised. Unless such an executive has ownership/governing power – the source of the authority becomes simple majority – on the basis of who gets more rights. If those rights are by cheating – then they become abuse of power.

Mr Wigneswaran who apparently has high position in Judiciary as well as Politics did not inquire into my complaints as if he was Thesawalamai. At least when I wrote my analyses he could have proven me wrong. He would have if he had felt the need of the People as his. Likewise, Dr Guruparan. Even if I am irrelevant to them – they could have written as per their experience. If they did not have such an experience – then they are not the ones in need of change or Thesawalamai did not permit them access to its soul.

As per the Tamil Guardian article - Front Line Defenders and others from around the world – have felt the need to oppose the ruling against Dr Guruparan. They are all ‘foreigners’ to Thesawalamai Law and its practice. If Thesawalamai’s Dowry system was officially practiced in Ireland – practitioners of Irish law would have weaker support. Given that the support has been lateral – and given that there has been no parallel provision in Thesawalamai law – I conclude that the above mentioned paper by Dr Guruparan is driven by desire for academic status which would then lead to bipolarism.

The law at its fundamental level helps us recognize right from wrong at the level served by the law. As per Thesawalamai law separation of powers exist between males and females in terms of inheritance. The real value is that Energy which can be accessed through pure belief  or discriminative thinking through the pathway used by the original discoverers. Hence as per the principles that separate man from woman – one who makes changes to customary laws cannot cross over to contemporary laws and v.v.

We may not ‘see’ the ancestors who gave us those laws. But they exist and the believer recognizes them and finds her/his logic and therefore peace of mind. Given that majority Tamils access our ancestral powers one needs to be driven by the soul value / truth which need not be proven to be right or wrong. One who is driven by ‘seen’ and/or known outcomes – of money and status would not access this soul power and therefore has no authority to make laws nor change existing ones. Hence the architects of Buddhism Foremost article in the constitution,  have no authority to make changes to  Tamil, Muslim or Secular  laws and v.v. If Thesawalamai Law is amended to suit current constituents – then such leaders become the parallel of Buddhism Foremost architects and are ineligible to make changes to the secular laws.

There was nothing to prevent a TNA MP from initiating such proposal for changes in Parliament. But then that MP loses the moral authority to initiate changes to the secular laws. In a Buddhist parliament a non–Buddhist is the natural Opposition. This non-Buddhist could be a specialist in Secular law, Thesawalamai or Muslim law. Those who are specialists in Secular Law would merge laterally with others who practice those laws. That was how Buddhism Foremost separation isolated Sinhala-Buddhists.