| by Gajalakshmi Paramasivam
( November 14, 2012, Melbourne, Sri Lanka Guardian) I
write in response to the Sri Lanka Guardian article ‘Shameful
stifling of freedom of expression’by Ms Kishali Pinto Jayawardena
I recently asked a senior member of the Sri Lankan
Legal Profession - as to whether the Sri Lankan judiciary
was experiencing its own karma coming back to it? I do believe that
it is.
Ms Jayawardena asks ‘Or is the truth no longer relevant in this country where a sitting Chief
Justice is now facing the exact fate meted out to Sri Lanka’s former Army
Commander, both of whom have fallen foul of this administration? These are
valid questions in the public interest.’
As per my experience here in Australia – including in
relation to the Judiciary and the Administration - one who truly
takes on these experiences is supported by that Truth Itself. We often do not
identify the manifestation of Truth due to our ‘attachments’ to benefits from a
particular system that is far away from its soul.
The commonness in both instances – General Fonseka as
well as the Chief Justice - to my simple mind is that they were both
part of the current Administration and ought to have known the nature of the
effects of the actions by the Administration. They would have, if they had
truly felt part of the Administration – common to both - the
Politicians and themselves. If they ‘waited’ until the punishment happened
to them, their punishment was due to them not feeling connected to
the ordinary victims when those victims went through the pain of being punished
unjustly. Thus they failed to recognize the ‘excesses’ – i.e.
the actions of punishment above the levels deserved by the punished.
In both instances – these excesses would come back to the punisher –
and when someone of a higher positive karma in that system – (in this instance
- Military or the Law – including through actual practice without official
portfolio ) – includes her/himself with those victims who were excessively
punished - the karma will return at the level of the higher contributor and not
of the lower one. I saw this happen at the University of New South Wales in
relation to Equal Employment Opportunity practices. Now that Tamil
Professionals all over the world are committing themselves to justice at
international level - the returns of actions under cover of ‘sovereignty’
that hurt Tamils excessively, would come to those who had the Responsibility to
ensure that such ‘covers’ were used in the interests of the Nation as a whole
and not for selfish reasons.
Chiefs of other disciplines had the Responsibility to
become the opposition of the Administration driven by Politicians who often
used their National level powers for local purposes. These leaders had the
option of resigning before they were accused by the punishers. If they did not
– they need to stay on and fight through the limitations of their own system.
One needs courage for this. Through such battles they would learn more and
more about the inner weaknesses of the system they are heads of and
if they do have enough strength to balance those weaknesses – they would save
their institutions which would strengthen also the nation as a whole. The
Administration can remove their position benefits but no
Administration can remove the real powers of a Judge to influence and work the
Judiciary and more importantly Judicial Administration. These are
the invisible powers we are all capable of - to influence
the institutions we feel part of. Even if the Chief Justice is removed from her
position – the lady would continue to influence the Judicial system through her
genuine contribution to Justice. Those whose ownership contribution is less
than their income / benefits producing contribution – would find it difficult
to naturally influence their group and more importantly all those who invest in
the core purpose of that group – in this instance the Judicial system.
Politicians who are weak administrators in such an environment – would find it
easier to influence their People – their Political system towards
lateral majority power. This is why Sri Lanka needs Equal Opposition of a
different cultural belief to offset this imbalance which results in weak
judiciary.
Every victim who suffered similar pain as the Chief
Justice, has the ability to know by ‘waiting’ for the other side to
happen or by connecting to the past where they were the beneficiaries of similar
actions by the Administration against others. Every person with an official
position does have duty as per that position. But beyond the boundaries of the
official system – each official has discretionary powers to reduce the pain and
loss of the victims by sharing in the Truth of the citizen without official
portfolio, at least to the extent the official is aware of the corruption
within the Administration. Such a person thus diffuses the negative
karma caused due to the Official Authority that is exercised in her/his name
also. Thus Sri Lanka’s Army Commander who led the Army when the Tigers
were defeated – would have earned negative karma through any excesses by his
group – starting with the President right down to the corporal at the battle
front. The higher the position the greater the share of karma – due
to common actions in uniform. The higher the position, the greater the
responsibility to be conscious of internal corruption and take
remedial action to cure confidentially and/or take disciplinary action to
publicly punish the internal relative – so others in society would learn. This
is a duty owed by leaders to society. A leader who first uses the confidential
method, then tries to reconcile and then and only then – declares war – would
cure the system through such war – be it through armed force or through legal
actions. When victims have fairly easy access to the legal system – the risk of
war is drastically reduced.
One could either stand up openly against such
maladministration (as I did here in Australia) or one could make amends through
humanitarian work outside the official position. When I instituted legal action
against the Prime Minister of Australia – I was doing so through a bottom up
process. The courage came due to my own high performance as an
Administrator in areas where I had the leadership - and the confidence came due
to my own investment in Equal Opportunity principles and values – starting with
not taking any handouts from the Australian Government. To the extent we
receive and use the handouts – we go over to their side – even though the
handouts may be as per the law of the country. This is also the case with those
who enjoy the fruits of war that are handed out by the Sri Lankan
Government and other global agencies. If the General and the Chief
Justice participated in the benefits – then they were actually earning the
punishment back then. This punishment surfaced when their common faith with the
Administration weakened and thus they were not able influence the
Administrative system. Often we believe in others thinking they were
our ‘other’ side partners/relations. Once we know that they are not – we are no
longer able to believe and hence we need to consciously practice the laws and
principles of our common system – even in the case of our families. It is due
to the distance between the voter and the governor in a democratic system - that
‘separation of powers’ exist towards flatter structures through which outcomes
delivered could be more easily related to by the voter.
Ms Jayawardena clarifies ‘Sri Lanka’s Parliamentary
(Powers and Privileges) Act No 21 of 1953 (as amended), modeled on the English
law, lists grave breaches of privilege in Part A of the Schedule. These are
serious acts amounting to criminal offences which were mandated by the original
Act to be punishable only by the Supreme Court. Lesser offences (such as disrespectful
conduct in the precincts of the House) listed in Part B of the Schedule are in
the hands of Parliament to punish. In consonance with the draconian
tone of the Jayawardene administration at that time, an amendment of 1978 gave
Parliament concurrent power with the Supreme Court to punish in respect of
these offences. But this amendment was repealed during the Kumaratunga
administration and exclusive power restored to the Supreme Court in that
regard. In all fairness, the repeal was in response to repeated appeals by
legal activists that this was an undesirable power given to parliamentarians.’
But at the level of the citizen – ‘Emergency’ was used
to protect the Government and later at international level ‘sovereignty’ was
used towards closed–door practices. Only those with belief have the protection
of confidentiality. Others when they use ‘secrecy’ without belief - that those
affected are a part of themselves, would be accumulating negative karma which
accumulates exponentially when such persons benefit from those very ‘behind
the door practices.’ It‘s betrayal of Trust.
There comes a time when the judicial
process becomes a burden on society. This often happens when like parents who
become dependent on their children, judges become dependent on lawyers who are
driven by the business of law rather than educating the public through their
cases – towards lawful life. Where more benefits are drawn out of the legal
profession than the costs / investments into the profession,
the judiciary disconnect themselves from civil society and live in their own
world.
A recent case in Sri Lanka confirmed to me that
those of us who invest in Administration of Justice in common with Judges –
would work that part of the system – irrespective of whether or not we win the
case as per relevant laws and their interpretations by the judges. In this
instance, the lawyer for our opposition sent letters to us without sending
copies of the documents, filed in courts. As per my experience here
in Australia – the respondents get copies of documents filed in court. I
did not know what the parallel process was in Sri Lanka. The first lawyer hired
by us – did not inform us of the due process. Nor did he - even after we made
the request - obtain copies of the documents filed. To the extent we could, we
kept track of the Public process and filed our objections within the deadline.
In the process, we prepared affidavits and stated what happened – as it
happened in terms of the Judicial process. This came naturally to me due to my
deep commitment to democratic Public Administration. At the following
session – the Judge asked me few questions about who had sent me the papers –
the Petitioners’ lawyer or the court registry? I said firmly ‘the
Petitioners’ lawyer’. The judge was highly critical of the lawyer
and said words to the effect ‘I will not have lawyers running their own courts
outside this courtroom’. To me that was value derived from that
system – through the Administrative process. It happened due to my genuine
investment in following Due Processes known to me without taking
shortcuts towards quick outcomes. The longer time taken does cost us more – but
if we can afford that cost – in time and/or money – it becomes investment in
the real workings of that system – at the level of that community – after we
add ourselves to it. In this instance, it’s the judicial administration
in that part of Sri Lanka which is significantly different to judicial
administration in Colombo. The remedial action by the Judge compensated us for
our pain when the opposition did not use the ‘internal system’ to manage the
problem but left it to the hired lawyer who did not even try to ‘reconcile’ but
tried to influence us to ‘submit’ through majority power. That to me was
politics and through forbearance we derived value for our own investment in
Judicial Administration.
When Sri Lankan lawyers commit themselves to bringing
the experiences of their clients as they were experienced – rather than in the
form that would deliver the quickest outcomes – favorable to themselves – they
would naturally and confidentially influence the Administrators of Justice –
starting with the lawyers within the Office of the Attorney General.
This is why I say that the problem seems to be the
manifestation of unfair / unequal opportunities used by lawyers to influence
judges. The current Chief Justice may not be personally one who so
exploited the system. But where the institution that the Chief Justice
represented is weak – the Chief has the duty to face the challenges on behalf
of the institution. That also means that this is a case of
Judiciary v the People who elected this Government and not the Chief
Justice v the President.
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