23 October 2020
Prescriptive Rights and the written law
When preparing for my Colombo land matter I learnt about Prescriptive rights. When thinking about the 20th Amendment to the Sri Lankan Constitution this helped me better appreciate the value of ‘alternate forms of belief.’ To my mind, majority Sri Lankans do not understand the written law in the language of the law expert. The few who do participate intellectually improve and/or maintain their intellectual structures.
During the 2020 elections I raised the question of Preferential voting and the system of proportional allocation. I was happy to note that this was an example used by the Hon Judges of the Supreme Court in addressing the question of whether or not the People’s sovereignty is affected, in relation to the 20th Amendment:
I read through both Amendments but found it difficult to construct an intellectual picture. In essence for my purposes I felt that the above clarified that there were no preferential votes but only proportional representation. It was therefore inappropriate to compare the votes within a party with that of a candidate of another party. It is misleading to refer to it as preferential voting system which as confirmed above was repealed by the 17th Amendment.
I realised also that most educated Sri Lankans did not understand this system. This includes the media that published the outcomes as if it were preferential voting system. The strongest manifestation of this happened in Jaffna District. We therefore rely more on belief based connection than calculated base. The deeper we believe, the more we connect at root level.
I believe that my respect for the judges which was also earned by them helped me work out the modus operandi of the guy who claimed prescriptive rights to the property I purchased through the written rules of law. Below is an extract from my latest contribution:
[The Hon Judges of the Court of Appeal have revealed facts based construction of the core purpose of the case 5218/ZL was to evict Periyasamy who was then the occupier. The reasoning by the CA judges is confirmed as follows: “This case went ex-parte against both of them and Piyadasa had used this ex-parte Judgment to confirm his Prescriptive title for the next transaction.” That next transaction is confirmed to be the entry dated 04 July 1991 in the Land Registry This entry overrides the previous entry made on 27 May 1988 based on the basis of the Declaration dated 04 May 1988. This is followed by entry dated 22 March 1992 on the basis of ‘sale’ to the 2nd Defendant on 12 March 1992. ]
The 1st entry on 27 May 1988 was the parallel of the first past the post vote. The second one on 04 July 1991 is the parallel of Proportional representation through a system devised by intellectuals.
Since I believed and presented my facts through that belief – I learnt that the judges knew about the modus operandi of such persons who did not own through belief but occupied through force. The judges presented this as follows:
[It was held in Sirajudeen Vs Abbas 1994 (2) SLR 365, that in a Rei Vindicatio action, the burden of proof rests fairly and squarely on the person, if he is claiming prescription and has to be proved with specific facts and not mere statements. A facile story of walking into abandoned premises after the Japanese air raid constitutes material far too slender to found a claim based on prescriptive title.]
As per Wikipedia:
[Rei vindicatio is a legal action by which the plaintiff demands that the defendant return a thing that belongs to the plaintiff. It may be used only when plaintiff owns the thing, and the defendant is somehow impeding the plaintiff's possession of the thing. The term originated in ancient Rome]
The above parallel is closest to the election system that I can think of. Every vote that is purely belief based spreads itself exponentially. Those based on intellectual logic would be limited to the conscious connection between minds. Under the First past the post system, the voter would have known the strength of her/his vote through the direct outcome. Not any more. But whether we know it or not – when the vote is on the basis of belief and without any calculations we get to govern through democracy – in all areas where we are bound to each other through belief. This might be a local village, family or just us. The more we move away from belief – the more written laws we need.
Idle laws often promote separation. Someone in the village of Thunaivi was reported to have run away with her choice after marriage was arranged by the parents. This is because of lack of devolution of power by the parents to the children as the children were becoming ready for marriage. Marriage laws in that part of Sri Lanka are largely idle. Likewise, Buddhism foremost article in the Constitution which played no part in the intellectual debate regarding 20th Amendment . It would naturally promote separation due lack of common belief.