Gajalakshmi Paramasivam

http://austms.blogspot.com.au/

01 January  2020

TAMIL LAWYER V SINHALESE LAWYER

On 30 December 2019, I wrote in relation to workplace skills - ‘technical knowledge is raw material and that the structure that gives it form needed to be ‘common’ to both sides – as in marriage’. This morning when I read the response by Attorney at Law Dharshan Weerasekera’s response to Mr Sumanthiran under the heading ‘Sumanthiran’s disservice to Tamils’ the Tamil saying that came to mind was ‘the wolf wept for the goat that was getting wet’.

Mr Weerasekera states ‘I take exception to an observation by Mr M. A. Sumanthiran PC in an article titled, “Legal challenges faced by the Federal party in its 70-year history,” Daily Mirror, 27 December 2019.) He says that in the said case the court endorsed or approved advocacy of a confederal form of government in this country. I was the Counsel for the Petitioner in that case and consider it my duty to set the record straight in the public interest.’

The way the Courts – Judiciary  and its lawyers - interpret the law would be different to the way the lay citizens would interpret the same law. In a Court of Law – the Public including the lay participants – are the Equal Opposition to the Judiciary and its Lawyers who are in governing position. The lawyers bow to the Judges who are their seniors. This connects them to the mind of the judges. The lay participants’ parallel is the oath  -with  the form of belief of ‘their choice’ as the witness. The lay participants bring their truth to the Courts. Hence the Judges bow to the Public in the court – represented by the lay participants also.

In the case - Chandrasoma v Senathirajah referred to  above – the Judiciary had the duty of care to limit the interpretation of the law to the Public’s interpretation. Since Chandrasoma is Sinhalese and Senathirajah is Tamil – this is also the Sinhalese v Tamil case.  Mr Weerasekera presents his grievance as follows:

[My learned friend says, “According to the judgment (i.e. Chandrasoma) on the basis of sovereignty and self-determination the ITAK has the right to advocate for a confederal form of governance. The judgment affirmed our Party’s historic position.” (Daily Mirror, 27-12-2019). The court does nothing of the kind. Instead, this is what the court says: 
“It is established that there is a clear distinction between the words “federation” and “confederation.” The main issue, in this case, is whether advocating the establishment of a federal state is tantamount to the establishment of a separate state….The Thirteenth Amendment to the Constitution devolved power to the provinces. The ITAK is advocating for a federalist form of government by devolving more power to the provinces within the framework of a unitary state. Advocating for a federal form of government within the existing state could not be considered as advocating separatism. (SC/SPL/3/2014, p. 17)  ]

Wikipedia presents confederation as follows:

[A confederation (also known as a confederacy or league) is a union of sovereign groups or states, united for purposes of common action]

I wrote on 28 December in response to Mr Sumanthiran’s message:

[In 1972, the first Sri Lankan Constitution included the ‘Buddhism Foremost’ article as part of the Constitution. Until then, the land called Sri Lanka had its own customary laws – each community being like city-states of Athens and Sparta:

[During the so-called “Greek Dark Ages” before the Archaic period, people lived scattered throughout Greece in small farming villages. As they grew larger, these villages began to evolve. Some built walls. Most built a marketplace (an agora) and a community meeting place. They developed governments and organized their citizens according to some sort of constitution or set of laws. They raised armies and collected taxes. And every one of these city-states (known as poleis) was said to be protected by a particular god or goddess, to whom the citizens of the polis owed a great deal of reverence, respect and sacrifice. (Athens’s deity was Athena, for example; so was Sparta’s.) Ancient Greece - HISTORY.COM EDITORS]

Article 3 of the 1972 Constitution stated:

[In the Republic of Sri Lanka sovereignty is in the People and is inalienable. ]

Only to the extent of one’s belief can one claim to be Sovereign. At that time – this would have included belief in the British laws which was commonly applicable to all.

Article 6 of the 1972 Constitution stated:

[The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Section 18(1)(d).]

Belief is Absolute/Sovereign  power. Sri Lankan Police Motto is [One who lives by the Dhamma is protected by the Dhamma itself].

One who believes in Buddhism will be protected by Buddhism. One who believes in Hinduism, Islam or Christianity cannot be protected by Buddhism. Likewise, one who believes in Buddhism does not have the authority to empower any non-Buddhist in order to satisfy article 3. Article 6 of the 1972 Constitution and Article 9 of the current Constitution of Sri Lanka are ultra vires not only Article 3 but the principles of Democracy itself.

Buddhist Police therefore are not authorised to arrest non-Buddhists. The question I ask Mr Sumanthiran is “How come the Tamil Legal Giants ‘Thanthai Chelva, G.G. Ponnamabalam and Murugesu Tiruchelvam’  assisted by 64 lawyers did not raise this issue when their clients  were arrested and prosecuted?” ]

The essence of the above is that in Tamil areas – the laws used by Tamils was largely Customary Laws of Thesawalamai & Mukkuva laws. This rendered common mind-structure to Tamils of East and North. Had the government adopted a Federal structure – the values realised through these customary laws would have been the basis on which we would have learnt the Secular laws as per our own needs.

The power in a place of worship is from those who worship there and / or pray with that shrine in mind. Without the People’s power – the place is an ordinary building like any other. Likewise the law. Knowledge of the law without belief leads to trading and welfare judgments. This is why they say that the outcome in a Court is strongly dependent on the dynamics between the judge and the lawyer. The Ultimate Value to the Public is through belief based participation. We may be dismissed as failures by the Courts - but to the extent we genuinely pass our experience – especially painful experience – through the law and judge  ourselves – we have added true value to justice in that Court as well as the Nation. I believe I have made such contributions here in Australia as well as in Sri Lanka – after I was failed by the Courts.

In the above case – Mr Chandrasoma & Mr Senathirajah would have made such contributions if they had represented themselves.

To my mind, Confederation is Love marriage and Federation  is arranged marriage. Majority Tamils match horoscopes in arranged marriages to find Common structures from the past. In ‘Love-Marriage’ it is a union of hearts and hence one does not need structures that would lead to oneness. Sovereignty is another word for Truth, Love. Through confederation we confirm that we are already Sovereign. The more Federalism is delayed the stronger we confirm Confederation  - not only by minorities but also Sinhalese.

Despite article 9 provision of Buddhism Foremost in the Constitution – the requirements by  Buddhist tenets have not been included in the Constitution. If it is understood – then Confederation was confirmed through Article 6 of the 1972 Constitution. The ruling in Chandrasoma v Senathirajah by the Supreme Court was that it interpreted  ITAK policy as Federalism and this is valid due to the secular law that the judges used.

A separate state was in fact created by Article 6 of the Constitution and carried forward through Article 9. Morally & Logically  speaking therefore – the 6^th Amendment through which ‘separate state’ is prohibited becomes invalid due to Article 9.

State is relative. Nation is Absolute. As per the 6th Amendment:

[ 157A (1)No person shall, directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka.

(2) No political party or other association or organization shall have as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka.]

LTTE did claim Separate State. Not so ITAK and this was confirmed by Vaddukoddai Resolution. The purity of this Resolution was confirmed by the gods through the 1977 Parliamentary elections in which Tamils became Equal Opposition in Parliament. This is possible only in Confederation – i.e. – natural union of Equals. Later again in 2015 this was confirmed due to strong attachment to money and status and therefore relativity within the majority race.

Using the physical states of solid, and gas – a group  that is strongly attached to solid mass is not yet sovereign and is most visible. One that is least visible is a Sovereign group without borders. If confederation had been confirmed and common laws merged with customary laws - there would have been no claim of separate state. Without Customary laws – rural Sri Lankans would have difficulty with secular laws and therefore would need lawyers to bridge the gap in court.