Tuesday 23 June 2020

Gajalakshmi Paramasivam

22 June  2020

Constitution and the Bible

Highly respected Sri Lankan lawyer Ms Kishali Pinto-Jayawardena asks the question ‘what need is there of a Constitution for Sri Lanka?’ Sri Lankan Constitution’s parallel in my religion – Hinduism - is the Bagavath Geetha. During one of my Australian Court cases – I said to the Magistrate that since they did not have a Hindu scripture – I will take oath on the Bible. Magistrate Smith said words to the effect ‘We must have one’. But the officers could not produce one. Hence I took my oath as usual on the Christian Bible. This practice of the People taking oaths on their sacred books surfaced during a hearing in Colombo court. I then learnt from our lawyer friend Manoharan that Buddhists did not swear but affirmed. I wondered whether it was because they did not have a book of Buddha Sasana. The Fourth schedule in the Constitution of Sri Lanka, provides as follows:

[FOURTH SCHEDULE ARTICLE 32, 53, 61, 107, 165
"I……………………………………………………………… do solemnly declare and affirm/ swear that  I will faithfully perform the duties and discharge the functions of the office of ………………………………………………… in accordance with the Constitution of the Democratic Socialist Republic of Sri Lanka and the law, and that I will be faithful to the Republic of Sri Lanka and that I will to the best of my ability uphold and defend the Constitution of the Democratic Socialist Republic of Sri Lanka.”]

I would take oath on the Bagavath Geetha. But I do not have knowledge of most of its verses. In his paper ‘THE LAW OF TESTIMONIAL OATHS AND AFFIRMATIONS’ Mark Weinberg- Senior Lecturer in Law, University of Melbourne, quotes as follows:

"Uncle Rastus, testifying in a certain law suit, refused to be sworn. 'Ah will affirm', he said. 'But Uncle Rastus', said the judge, 'how is this? Last week, in the Calhoun case, you swore readily enough'. 'Yo' honah', said Uncle Rastus solemnly, 'Ah was mo' suah of mah facts in dat case den Ah is in dis one'."

To my mind when one believes that her/his statement is true and one believes in the religion and therefore its officially accepted scripture, one would swear. If one merely confirms observation – of what happened – it is affirmation. If therefore the President of Sri Lanka affirmed then is he bound by the constitution – as interpreted by law experts who have certain level of belief in law as given form by their elders / seniors ?

Ms Kishali Pinto-Jayawardena states:

[This query becomes pertinent in regard to the recent appointment of an Ombudsman, a retired Deputy Inspector General (DIG) to boot, tasked with inquiring into public grievances and complaints. That appointment was made despite a constitutional office of the Parliamentary Commissioner for Administration (Ombudsman) being functional for decades, albeit historically critiqued in respect of the limitations of that office.
This is even more an insidious undermining of the constitutional process than the appointment of military-led Task Forces to take over manifold civil and policing functions, ranging from building a lawful, disciplined and virtuous nation to protection of archeological sites in the East. We would expect more Task Forces, stuffed with military and police appointees to be on the horizon with all the deadly inevitability of an incoming tidal wave. But even so, to duplicate constitutional institutions is quite another manifestation of the steady creation of an omnipotent centralisation of power in the Presidential Secretariat which has gone largely unremarked.]

If as per his own assessment of his skills – the current president needs a team of military officials to uphold and defend the constitution as interpreted in good faith by Mr Gotabaya Rajapaksa, would that be in breach of the Constitution? Members of the Judiciary themselves would have diverse interpretations of the same law. To my mind, the Doctrine of Separation of Powers between the Judiciary and the Executive is confirmation of this diversity and Equal right to interpret. Where there is diversity in form – there needs to be separation and Equal status – so one does not become junior of the other.

The question here is whether the President to the extent he believed that the People  have a need had the duty to develop a structure as per that need or whether he had the duty to act as per the letter of the Constitution – a constitution written by someone else whom he does not consider to be his senior. Former is exponential and spreads itself – like the Coronavirus whilst the latter is relative because it is alien due to lack of belief which has been demonstrated repeatedly by this president. If the Rajapaksas were driven first by law – they would have not defeated the LTTE. Given that majority Sinhalese refer to the LTTE as ‘Terrorists’ and majority Tamils refer to the LTTE as ‘freedom fighters’ confirms that our investment in common law is weak. Many law experts of Sinhala origin refer to the LTTE as Terrorists. I am yet to hear one Tamil lawyer refer to them as Terrorists. This is because we are one community. This means we discipline to become one. Those driven by belief in law more than belief in community – including the lawless parts – lack jurisdiction beyond their local law circles.

I reported our Bank to the Ombudsman here. I knew that the other side was lawless but since my official community position was lowered after my painful experience at the University of NSW, and after the Judiciary kept dismissing my complaints – I did not consider it my duty to do due diligence checks in the case of donors. I became like the current Lankan government in the case of China which as a different government structure to Sri Lanka and is therefore not a relative by structure. The Ombudsman as usual dismissed my complaint but recently I knew that my contribution had worked when Westpac was accused allegedly of 23 million breaches of money laundering and counter-terrorism finance laws. News.com.au reported further as follows:

[The crisis claimed the scalp of Westpac chief executive Brian Hartzer as well as chairman Limdsay Maxsted, who will now bring forward his retirement to the first half of next year.
The scandal deepened further when comments allegedly made by chief executive Brian Hartzer to senior staff were leaked to The Australian, including claims the scandal “was not playing out as a high street issue” and that the Westpac board “don’t need to overcook this” because “for people in mainstream Australia going about their daily lives, this is not a major issue”.]

This also the case with Sri Lankans voters – majority of whom have no relationship with the Ombudsman nor the Judiciary in day to day life.

The lockdowns and social distancing rules by the government during the virus threat were followed by majority Australians not because they knew the science of it but because the government sweetened it with the economic compensation to do so. Again, Australia by its structure is related to rich nations. This includes religion. Sri Lanka’s isolation from those nations was confirmed as follows at UN level:

[In a hard-hitting message, Sri Lanka this week abstained from voting for any candidate–Canada, Ireland or Norway–from the Western European and Other States Group (WEOG) in a contest for the UN Security Council’s (UNSC) non-permanent seats.]Sunday Times
Since this government used the status of these Western countries – especially the USA to eliminate the LTTE but failed to show gratitude that ‘donation’ became a debt. This fundamental value, to my mind,  is built into the Kandyan Law – through Section 4 of the Kandyan Law Amendment & Declaration Ordinance:
[4(1) Subject to the provisions and exceptions hereinafter contained, a donor may, during his lifetime and without the consent of the donee or of any other person, cancel or revoke in whole or in pan any gift ……..]
The above provision prevents donations from becoming debts due to ingratitude on the part of  the donee. Hence as per the spirit of the above law – those nations that shared their status with Sri Lanka ‘withdrew’ that status when the Government demonstrated lack of respect for them as seniors. Given that Sri Lanka was a junior to America in this regard, if Sri Lanka had honoured that true positioning the junior would have had the right to share in the higher status of the seniors. When one takes equal position – without settling that debt – it naturally demotes one’s institution structure and therefore status relative to others. Hence now Sri Lanka has become China’s donee.  
The written law helps us to connect with each other through a common structure. Developing the common structure requires ‘savings’ from current benefits. By respecting those before us who ‘saved’ we inherit those structures. Now that the government of Sri Lanka is promising to repeal the 19th Amendment by those who are heirs of the global system of justice – one must expect further loss of status in the minds of those who are supporters of this government that has very little structure beyond its military circle. Our genuine contribution at the higher level would help us mind-merge with higher thinkers and also our ancestors who gave us our customary laws. When we take positions as per those laws – the villagers will mind-merge with us directly and thus isolate the military government.

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