Judicial Conscience is the missing link
| by Gajalakshmi Paramasivam
I write in response to the Sri Lanka Guardian article ‘The beginning of the fall of western legal bastion’ by Professor Nalin de Silva.
( November 30, 2012, Melbourne, Sri Lanka Guardian) This week I received the following email regarding Tamil forces within the International Community ‘Transnational Government of Tamil Eelam's 4th Parliamentary Sitting Begins in London…. The Sitting will begin with a conference at the British Parliament on November 28th, the day after Heroes’ Day. Several Members of Parliament and other dignitaries are attending this event.’
It felt as if the likes of Professor Nalin de Silva are abandoning the investments that Sri Lankans of Sinhalese origin made in global systems and are thus handing over Tamil Eelam to groups such as the TGTE. In other words, Tamil Eelam would be the face through which the Western system would see its investment in Ceylon/Sri Lanka, if the likes of Professor Nalin de Silva had their way. It felt as if TGTE was saying to the President of Sri Lanka – ‘If you do not want your investment in Western systems we will take them also’.
In 2010, I heard the miracle story of a very poor devotee of our Family Temple where Vairavar and Kali are worshipped. That poor mother of eight went to the markets in Vattukottai and other areas, bought vegetables that the richer vendors were not interested in, sold most of it in her local village and then used the leftovers to feed her family. All her daughters got married and when the last one got married she was given many lakhs in dowry.
I was reminded of this story when I read the article by Professor Nalin de Silva in the consciousness of the achievements of the Transnational Government of Tamil Eelam. TGTE is using the leftovers of the Western system that the official government in Sri Lanka has discarded. One who believes in a system will work that system more than one who merely marks his presence in that system to get the status.
Professor Nalin de Silva states ‘In Sri Lanka since the English had "retreated" at least in theory, there has been a long struggle over who should rule this country. I am afraid the ordinary Tamils were kept out of this struggle by the English educated Vellalas until Prabhakaran came on the scene. Unfortunately, he was used by the very same westerners and of course the Indians, though the latter did not succeed much, against the Sinhala Buddhist culture. This prolonged struggle is nothing but a continuation of the independence struggle by the Sinhalas against the English, and it is destined to be carried on for few more decades.’
The Vellalas (Farmers) were groomed by the Tamil community to take over leadership. They are the parallels of Academics in a University system. India’s parallel of Vellalas are the Kshatriyas who are warriors. To my mind, they are the parallels of Kandyan Sinhalese. India’s caste system was led by Brahmins whose parallel in the University system are the Professors. If we had a uniform system all over the world - farmers would be the rulers in all countries that do not have strong need to protect their borders and warriors / military would be the ruling class in countries that have the need to protect their borders. By militarizing itself, the government of Sri Lanka is claiming to feeling threatened by Tamils. Hence the push to take over Jaffna.
Kshatriyas respected their Gurus who were usually of the Brahmin caste and were intellectuals. When Sri Lanka was at war with itself, the Tamil community also fought with itself – the intellectual Vellalas against Warriors who lacked respect for their ancestors and community elders. The parallel of that within Sinhalese is now unfolding between the Judiciary and Military leadership. Tamils went down that path before Sinhalese. The parallel of this upside down management in the Western University system is the business basis taking over intellectual leadership. In the case of Sri Lanka, it is politics taking over intellectual leadership. When the hierarchical system weakens and the system of democracy is yet to be developed, management turns upside down as it is. This is like the Nalavar (Toddy Tappers) taking leadership over Vellalas (Farmers) which happened a couple of times at Vattukottai – where the first political declaration of Independent State of Tamils was made. To me it is no coincidence that LTTE’s make up included a high proportion of lower caste Tamils. The parallel of this in the Immigration system of the West are the illegal immigrants who often become dependent on their parallels in the host nations that are looking for followers as per the old hierarchical system. By the time they realize that these immigrants are the parallels of rough politicians in their own countries, it is too late to stem the flow. The independence is confirmed at the physical level through separation. A system turns upside down when an appropriate alternate system has not been developed by its People. Thus students took over University management in Sri Lanka due to talking politics outside their portfolios. Separation is healthy when the institution/nation is too large for the ruler. This often happens when the ruler is lacking in leadership of the whole. Hence the need for separation of powers.
Professor Nalin de Silva states confirming the use of upside down management: ‘It is clear that article 4(a) and 4(c) quoted below state that both legislative power and the judiciary power of the People shall be exercised by Parliament, the difference being that in the case of Judicial power Parliament exercises it through courts, tribunals and institutions. It does not say the judicial power has to be exercised only through courts and tribunals but it includes institutions created and established, or recognized, by the Constitution, or created and established by law.
"(4) (a) the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum;
(b) the executive power of the People including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People;
(c) the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law";
As per my reading of Article 4 (c ) – the People have the Power and the Parliament has the Responsibility to facilitate the exercise that Power through Courts, Tribunals and other institutions of specific culture that is different to that of the Executive. Parliament representing the People, is the parallel of One god and the various forms in which the nation is governed are the various religions that lead us to that god.
Article 105 of the Constitution includes:
2) All courts, tribunals and institutions created and established by existing written law for the administration of justice and for the adjudication and settlement of industrial and other disputes, other than the Supreme Court, shall be deemed to be courts, tribunals and institutions created and established by Parliament. Parliament may replace or abolish, or, amend the powers, duties, jurisdiction and procedure of, such courts, tribunals and institutions.
(3) The Supreme Court of the Republic of Sri Lanka and the Court of Appeal of the Republic of Sri Lanka shall each be a superior court of record and shall have all the powers of such court including the power to punish for contempt of itself, whether committed in the court itself or elsewhere, with imprisonment or fine or both as the court may deem fit. …………………………………..
In other words, the Parliament does not have institutional powers to directly administer the Supreme Court. To my mind, ‘Other than the Supreme Court’ means that the Parliament does not have the power to create/establish the Supreme Court. The Parliament therefore does not have the Administrative rights over the Supreme Court. A good example of this is the ‘invitation’ system practiced by the People of Jaffna. Children are included in the invitation of parents until the children get married. In Australian / Western culture – children who live on their own are considered independent individuals. Hence they are entitled to separate invitation even though they are not married. Parents have administrative powers over children only until the children are independent of the parents – even if the children live in the same house. Likewise communities that function independent of the Government – even if they live physically close to the Government. People who are the source of sovereign powers (powers that can create themselves) come, as wholesome powers without any divisions - into those who believe in them consciously or otherwise.
Every person who binds her/himself by the law is an independent authority and where majority persons to whom that law is applicable are known to bind themselves by that law – the custodians of power need to become a facility in respect of that law – and not direct administrators. That is when the practice of that law upholds democracy.
It is towards preventing the interference by custodians of Administrative powers, that separation between Equal Chiefs is established by law. Every citizen who practices the law and binds her/himself by those laws is a sovereign person equivalent to the ‘whole’.
Section 105 confirms that the exercise of Judicial Powers by the Parliament needs to be as a facility in the case of Supreme Court and the Court of Appeal – both of which have the requirement to punish themselves.
Professor Nalin de Silva states ‘Parliamentary Select Committee is an institution that satisfies the criteria stated in (4) (c) when it is read with Article 107 (3) on impeachment of judges of the two higher courts, which states "Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of a such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative.". Standing orders per se may not be law but for the impeachment of the judges the relevant standing orders are law under Article (107)(3). This is my personal view and I am not a lawyer.’
I am not a lawyer either but through practice of Administrative laws I have wisdom in such an issue. As per that wisdom, Standing Orders that do not flow from a law – do not have the powers of Legislative Administration. Only Standing Orders that flow from the law qualify as Administrative tools under Article 107 (3) of the Constitution.
Mr. Chandra Jayaratne, Petitioner in the matter SC Determination 3/2012; Case No: CA/WRIT/358/2012, against individuals who make up this Parliamentary Select Committee (which includes Tamil Political Leader the Hon Rajavarothiam Sampanthan) includes in his submission questions in relation to the relevant Standing Order 78A. I looked it up and found that Standing Order 78A includes:
‘(1) Notwithstanding anything to the contrary in the Standing Orders, where notice of
a resolution for the presentation of an address to the President for the removal of a Judge from office is given to the Speaker in accordance with Article 107 of the Constitution, the Speaker shall entertain such resolution and place it on the Order Paper of Parliament but such resolution shall not be proceeded with until after the expiration of a period of one month from the date on which the Select Committee appointed under paragraph (2) of this Order has reported to Parliament.
(9)‘ In this Standing Order “Judge” means the Chief Justice, the President of the Court of Appeal and every other Judge of the Supreme Court and Court of Appeal appointed by the President of the Republic by Warrant under his hand.’
To me therefore, it is clear that this Standing Order has been intended to cover the exceptions under Article 105 (3) of the Constitution. But unless it continues to confirm the sovereignty of the Judiciary as defined by Article 4 (c ) and confirmed by Article 105 (3) – this Standing Order would not qualify under Article 107 (3) of the Constitution.
To qualify under Article 107 (3) – the Standing Order needs to facilitate the Judiciary to punish itself. Hence the first complaint ought to have ideally come through the Judicial Service Commission itself. A lawyer who practices in Jaffna said to me when I got upset with him for failing to follow the law – that I could not sue him. I said I could complain against him to the Judicial Service Commission. I had done that against an Australian lawyer here in Sydney and hence I knew the process. I believe that we must do our best through Due Processes and leave the rest to Natural Justice.
All independent professions need to have a governing body that represented their ‘conscience’. It is that conscience based judgment above all else that confirms our independence of others / outsiders and therefore our sovereignty – which is what Article 4 of the Constitution is all about. But the Legislature did not facilitate this for the Sri Lankan Judiciary, through the law.
Standing Order 78B refers to other High Ranking Civil Officers appointed by the Executive. The Chief Justice seems to have been effectively classified under similar provisions to other Chiefs listed under this heading – thus denying the Sri Lankan Judiciary their Independent status as provided by Article 4 (c ) of the Constitution.
Going to the root principles of democracy – separation of powers is required where a group is clearly not able to submit itself to the dictates of another group due to its Natural beliefs and/or as structured by the Constitution of the whole. We are all born equal which means we have the power to judge ourselves and live within our Truth. This means also that those to whom we are not bound by common faith – do not have the authority to judge us – even if the law says so. As Gandhi said - there are unjust laws as there are unjust persons. Eventually Truth will prevail and those who have invested in Natural Justice above all other systems – would see the connection between cause and effect. The parallel of the injustice against the Chief Justice is the injustice against unarmed Tamils who were attacked by armed Sinhalese. Given the declaration by Tamils that they were a ‘sovereign’ group – Tamil Politicians ought to have been the source of impeachment of civilian Tamils, followed by punishment through lawful processes.
If the Sri Lankan Judiciary had been truly sovereign it would have strongly objected to the attacks against Tamil civilians and invoked divinity to support Tamil civilians against unjust attacks in May 2009. Divinity comes to help us only when we recognize our Oneness as a nation and beyond as humans. If we had the power and failed to use them in time of need – we lose the Divinity of such sovereign powers. The Hon Rajavarothiam Sampanthan in the Parliamentary Select Committee and all other Tamils in the Legislature who fail to take a stand against this interference with sovereign powers are the parallels of the Judiciary that failed to share its real and natural sovereign powers with Tamils during the time we needed them.
Tamils as well as the Judiciary are not binding themselves by their conscience. That is the missing link here.