26 September, 2020

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Taking Sides – On The Side Of The Law

By S. Ratnajeevan H. Hoole

Prof. S. Ratnajeevan H. Hoole

I am under criticism for “taking sides” in the ongoing dispute between the UNF and UPFA. Former President Mahinda Rajapaksa has accused me thus: “Yesterday a commissioner from the Elections Commission went to the Supreme Court saying that the President’s decision to dissolve Parliament is against the law. He has gone before the Supreme Court although more than 10 others have also filed cases and his actions will contribute to the promotion or the demotion of a party. It is unethical for a member of the elections commission to do so. So why did he do it? Ratnajeevan Hoole is the Tamil National Alliance (TNA) nomination for the Elections Commission and he has shown his political bias,” Rajapaksa said (The Island, 13 Nov. 2018).”

I do not wish a point-by-point rebuttal of this statement’s numerous errors of fact and judgment, starting with the fact that we have no election commissioners. I objected not to elections per se, but to illegal elections and being forced to conduct them in violation of my rights.

Today (15 Nov.) there were two more missives against me. One was in the Divaina Editorial. I cannot read it but the person who read it and told me of it said that the communalist newspaper had only two accurate facts – my father’s name and my brother’s.

The other missive was by my friend C.A. Chandraprema who carefully weaves facts with calculated untruths (The Island, 15 Nov.). He says I never challenged the postponement of local government election. Yes, true. What is untrue is the claim that in going to court I joined 

“the very same political parties the UNP, the TNA, the JVP and two Muslim political parties that colluded with one another to change the local government elections …”

The fact that Chandraprema left out the SLFP shows his bias and attempt at mind-manipulation. He would do well to remember that the Minister responsible for Local Government Elections and their postponement was Faiszer Muthapha of the SLFP. If he had read what I have written (for example, “Are we a Democracy? May be?”, June 7, 2018) he would have known that I have raised many of these points in favor of the law. I did not go to court on the postponement of elections because there was already a judgment. Importantly, in postponing elections as described by Chandraprema, there was brazen manipulation but nothing unlawful to challenge.

Spin

There is a reason why I do not go into a detailed criticism. I was awarded India’s IETE Gowri Gold Medal for my work showing that ethics is rarely implemented as an absolute standard. I have shown that many spin good principles for narrow purposes (vide my recent book Ethics for Professionals: An Internationalist, Human Rights Perspective, Cognella Press, San Diego, Ca, 2018). Besides my main subject of electrical engineering, I also teach professional ethics, a compulsory subject for accredited engineers. 

We know from established research that people decide and vote by identity. So whatever a politician says, it will be swallowed whole by loyal supporters who share his ethnic and party. We therefore really cannot learn anything from the pontifications of politicians and their mouthpieces. We must cultivate reading laws for ourselves and deciding for ourselves. 

We have seen a lot of spinning in a cafeteria reading of the constitution rather than as a whole document. We have seen the high principle of neutrality being misused for narrow ends, spinning (as in Mahinda Rajapaksa’s piece in the Island) that the Elections Commission to be neutral must not have an opinion on the law and not go to court. How can we not have an opinion when we are charged by the Constitution in Article 104B (2) “to secure the enforcement of all laws relating to the holding of any such election or the conduct of referenda”? Without an opinion on the law, how is it possible to secure the enforcement of laws? 

Indeed, the Supreme Court gave an interim order on the dissolution of Parliament that went against the President’s position. Does it mean that the Supreme Court is biased and “politically motivated.” Of course that opinion contributed to the promotion of one party and the demotion of another. However, in rendering that judgment, the Supreme Court did its work.

More spin is coming that a referendum must decide who the Prime Minister is. Law and tradition are clear that an elected government has a mandate for a period. Without that security, no government will implement bold policy even when such policy is unpopular in the short term but has long term dividends. Besides, after an expensive referendum, there is no law to change governments based on the result. It would lead only to more conflict and no resolution – another spin for the faithul. Not to be victims of spin, we need sound civic education in our schools. 

We are an independent Commission and nobody’s mouthpiece. When we rule on matters, we necessarily promote the right side.  It is called doing our work.

The Law

Public confidence in the law is at a low point today. In the North, the police can be easily bought – in two instances when the Election Commission filed complaints, the police filed the unrelated charge of campaigning at a polling both instead of the far more serious and correct charge that the election campaign was launched from a temple. The judge revealed his political bias openly acting against a person on whom notice was not served. Complaints to the Judicial Services Commission went unheeded despite several reminders. However, with the new CJ the complaint has moved to inquiry. 

In Jaffna where the Commission complained against a lawyer threatening an Election Commission Member, the system showed open bias. Again a reduced charge was filed and it took several letters to the IGP and the AG to get the charge corrected. Nonetheless, the bias for a fellow lawyer was evident. The magistrate sent the matter for mediation when the law did not allow it for such a serious matter against society. The Acting Magistrate, Mr. V.T. Sivalingam showed open bias for the accused by letting him wear his cloak and stand outside the cage for the accused, and got very angry when asked if the accused had special privileges.

Photos from Parliament which gives us our Laws (15 Nov. 2018)

Indeed, from the time of a) the disfranchisement of hill-country Tamils, b) to the Kodeeswaran case, c) to the Bindunuwewa Massacre where the Supreme Court berated a 12-year old murdered Tamil boy as a terrorist, d) to Chief Justice Sarath N. Silva boasting of his special favours in the Hambantota judgment, e) to CJ Mohan Pieris’ stooging, the reputation of our highest judges has been taking a beating – until now that is. The new Chief Justice and his two colleagues have redeemed our judiciary at a time when the Election Commission felt the judgment would go against us if we challenged the dissolution of Parliament. I have seen colleagues fearing to go to court expecting – nay being sure of – a judgment favoring those in authority. Now we can do the right thing with decent hope of correct judgments.

However, there will be bumps on the road like today (15 Nov.) Can the thugs and hooligans who rioted in parliament (and some say urinated on the Speaker’ Chair) ever be capable of reading and understanding laws? Writing good laws? Will parliamentary privilege be used to shield them from prosecution – just like some judges hide behind contempt to be tyrants in court? 

The Maldivian Comparison

A Foreign Affairs Secretary demanded that I not go as an observer for the Maldivian elections saying “We are  5-star democracy. We cannot be associated with the Maldives.” Are we truly  a 5-star democracy? The Maldives looks better after the recent democratic change of governments. I cry for my country. 

We need to be biased – always for the law. There can be no neutrality.

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Latest comments

  • 11
    0

    Excellent exposition, Prof. Hoole.

    • 5
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      Prof. S. Ratnajeevan H. Hoole,

      “We need to be biased – always for the law. There can be no neutrality”

      Thank you for exposing the shills and cronies, who want to break the Law and the constitution.

      It is the right and duty for every citizen to point out the abuses of the Law. Thank you.

  • 12
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    The earlier article by Prof. Hoole came in for near universal praise:
    .
    https://www.colombotelegraph.com/index.php/hoole-responds-to-colombo-telegraph-on-elections-commissions-request/
    .
    My view is that this present article deserves even greater praise, but I fear that there will be much criticism, and lots of ad hominem attacks on the author.
    .
    Our country is in this mess because most of our people are so timorous when a stand has to be taken against injustice and outright thuggery. I have been reading most of Prof. Hoole’s articles; they were read by many in certain circles, but it is only with that last article that the wider public got to know just how bold this honest man can be.
    .
    This article has taken my breath away, but all that Prof. Hoole says is true, and it has all got to be told. What neutrality can there be when there is such blatant violation of civilised conduct? Thank you, Sir; I’m only hoping that this article will not place you in actual physical danger. Already we have seen the aged speaker, Mr Karu Jayasuriya, being blamed for acting heroically. We seem to have become a nation that picks up courage only to safely praise “Ranaviruvas”. It requires far more valour to to fight for peace using non-violent methods.

  • 3
    2

    Aye! Aye! Sir! You indeed are a man of ethics and that is why you were not allowed to function as the VC of the Jaffna University by the LTTE and had to leave the country subsequently. We all know that. Just as much as you can claim that your rights are being violated, other colleagues in the Commission too can claim that there rights too were violated. If I were you sir, I would have first resigned my position at the Commission and then filed the case. To a pundit of ethics an explanation why so is superfluous. The judiciary has done its duty by granting leave to proceed and stayed the operation of the gazette as interim relief but not quashed the gazette as interim relief. I hope Sir as a man who got a DSc. you would know the difference between the two.

    • 0
      0

      This is going a little over the top.
      What were the ethical grounds that let him to be made VC UoJ not once but twice?
      *
      How he was nominated to the Election Commission is not relevant right now.
      He did the right thing; and, in the current context, it will make sense to stay on rather than resign.
      One could resign under circumstances of helplessness. This is not one such situation. he is in a strong position.
      MR & co. want him out, and the choice will be to sack him, and that will add further impact to his action.

  • 4
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    I cry for my country too…
    Sri Lanka is often described as “Sri Lanka, a teardrop in the Indian Ocean. “

    that is the country’s destiny…a tear drop…..keep weeping Sri Lankans…while power hungry Sri Lanka Sinhala Buddhist politician carry on raping the country..as they have dome for the last 70 years…..

  • 5
    0

    Dr. Hoole,

    You did the right thing. In this instance, it is an issue that is applicable to the country as a whole, so fair-minded Sinhalese and Muslims, not just Tamils, will also support your stand.

    But after the end of the war, I have been advocating that the way ahead for Tamil people to address their grievances is to use court challenges to the maximum extent possible. For this to work for the victims as a whole, many of whom cannot afford the legal costs, it will require a cadre of lawyers drawn from all ethnic groups willing to work pro-bono, giving their time and skills freely, as well as a legal defense fund that can cover some basic expenses and court costs for those who cannot afford it. I have made this argument within CT as well as within the Tamil Diaspora. Of course there will be disappointments as some judges are also ethnically biased or corrupt, but by relentlessly pursuing legal avenues, Tamils can win the confidence of other communities, and the country as a whole can get better for everyone.

  • 4
    0

    Duty of every public servant is to stand on the right side of the law.
    We dream of a day the entire Judiciary, the Defence Forces and the highest Public Officials of the country find the courage to stand on the right side of the law, so that the true democratic rights of the people will be protected from the fools we have elected to govern this land. So sad about it.

    We salute you for your bravery and your name will go down in history in gold!!!

  • 0
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

  • 1
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    Agnos,

    “I have been advocating that the way ahead for Tamil people to address their grievances is to use court challenges to the maximum extent possible.”

    Courts should be used more.

    “For this to work for the victims as a whole, many of whom cannot afford the legal costs, it will require a cadre of lawyers drawn from all ethnic groups willing to work pro-bono, giving their time and skills freely, as well as a legal defense fund that can cover some basic expenses and court costs for those who cannot afford it.”

    I wonder how many can afford to retain lawyers in Sri Lanka. As you must know all too many Tamils involved in different ways in politics are lawyers. Despite of what they say about human and other rights I seriously doubt their willingness to help victims pro-Bono in any major way.

  • 0
    0

    I despair. Why does this man with such impeccable credentials have to match his wits with illiterates and thugs? Why or why?

  • 1
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    minority parties-tamils and muslims- including individuals and right minded sinhalese -jvp included-are fighting for democratic rights of ALL Sri lankans and it is a good sign.
    -dayal

  • 4
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    Brilliant argument. Do hope a sinhala translation will appear in the papers
    The present situation and all that happened recently is a dreadful reflection on the ‘sinhala’ race in particular. I cry for my beloved country

  • 2
    0

    Ethics is a word fast disappearing from our vocabulary. It’s pretty much a dog eat dog society we live in SL where money talks & can buy almost anything. We are happy to associate known fraudsters, rapists & murderers (although we may laugh behind their backs) instead of treating them with contempt & revulsion openly. This is the result of self serving politicians running the country & the rot trickles down the line, particularly, in Govt, services. In this wake, it is comforting to know there are at least a few who believe in ethics, equality & justice. Perhaps, it may be a losing battle, judging by the current disgraceful conduct of our parliamentarians & a blatant hypocrite of a President but I am happy there are some good people who will stand up for justice, even though they are a dying breed.

  • 4
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    Mahinda Rajapaksa is known for uttering half-truths and making misleading statements. People who tell partial truths are more dangerous than people who tell outright lies, and of course, Mahinda excels at both. Also, his story is modified constantly to suit the audience. He won’t tell the same story to everyone!

    • 2
      0

      Wise words, Estate Labourer. I will add to this in a few days.
      .
      With all this drama, few will see all that!

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