Gajalakshmi Paramasivam

02 August 2017

Law for the Senior and Truth for the Junior

"It is clear that all are not treated alike. Some people can fix a date for the investigations against them, whereas some cannot" – Daily Mirror Editorial - Are all men equal before the law?

I am in the category of those who cannot ‘fix’ dates. Yesterday, at the Civil Appeal courts here in Colombo – our Land matter was adjourned again due to too many cases before the Court. I could not find our case in the listing that was available to the public. As is my way – I went from pillar to post to find out from the Administrators the number of the room allocated to this matter. Finally I arrived at the room where the main list was kept and I leant the room number where our matter was to be heard. But in the process I noticed many ladies having breakfast in their allocated rooms. They were relaxed while we were running around or were being asked to ‘wait’. I thought back to my time as junior administrator. I was never relaxed like they were. That indicated  also the gap between theory and law. The point at which the lay litigant / member of the Public and the Administrators of the Court system merge – confirm the level at which Natural Justice becomes part of the Court Proceedings and Judgments. That need not be covered by any human law.

I did not get unduly upset by the adjournment but took my stand in communicating through our Counsels that the matter had already been adjourned three times. The other side lawyer said to me that the first time was due to the proposed changes in Judges. The second and third were to my mind, due to the ‘other side’ having greater  influence than I – a lay litigant. This eventually resulted in me handing the matter over to Mr. Harsha Fernando through Mr. Revan Weerasinghe. I did not know either of them personally prior to this. Yesterday, after the proceedings I rang my husband from outside the Court House and said ‘For the first time I felt valued  for my respect for and practice of law’. The reason was my legal team to whom I was respectable. The minds seemed clear of any preconceived positioning and that to me is the zero base needed for an Equal start.  Even in cricket – the coin has to be tossed to determine as to who bats or bowls first. That part is influenced by Natural Forces. There is therefore no ‘perfect’ equality in merit based assessment. The level at which this zero advantage/disadvantage begins confirms our level of practice of democracy. This is not very high in Sri Lanka at the moment. Hence one relies more on Truth to uphold Dharma.

Yesterday, I felt satisfied with myself that I had made the matter ‘common’ and less out of my direct control – so that in case I am not able to get directly involved – our children would be able to relate to the matter through lawyers who respected their mother. This respect is part of the heritage-structure that we share with future generations. The parallel of the above challenge for the media is the publishing of articles submitted by the Public. The fundamental criterion there is Truth. An authority true to her/himself would naturally identify with the true member of the Public with the need for Publishing space. The allocation of space needs to be as per official rules and principles. But where one has knowledge of greater merit that does not fit the official laws – one has the higher opportunity to personally show value and respect for that person.

As per my knowledge, Daily Mirror is yet to recognise my work on merit basis as per current needs of the Sri Lankan Public. Some other members of the media  have and they do rank higher in terms of allocation of respect by me. The highest is the National Library of Australia which has included my book ‘Naan Australian’ through Natural Forces that recognized the merit of my work. Some of the clues to the pathway are through the following particulars:

Summary : History of a race discrimination case towards an Australian Tamil citizen of Sri Lankan origin by University of New South Wales.

Available From: ‘Library of Congress -- New Delhi Overseas Office’ 

I did not initiate any book launch or other promotional work. But the forces of  Truth / Nature – have, to my mind,  been at work to place my work where it belonged.

As per the above editorial:

[Three similar incidents that took place last week and should have drawn the attention of civil rights movements and human rights champions were simply swept under the carpet without at least being subject to public discourse. This was so, probably due to the recurrence of such incidents in short frequencies in the recent times and deemed by the society as ‘normal.’
In the first incident, former President Mahinda Rajapaksa’s second son Yoshitha, who had been summoned by the CID to record a statement on July 27, had refused to turn up and requested for another day for the purpose.   

He had been summoned to record a statement on the involvement of a vehicle allegedly belonging to the Siriliya Saviya organisation in the Waseem Thajudeen murder. In connection with the same vehicle, former President’s wife Shiranthi who was the head of the Siriliya Saviya too had been summoned by the CID on the following day, but she too appealed a deferral to record the statement.
In the third incident, a bigwig of the incumbent government of so-called ‘good governance’ acted in a similar manner. Former Finance Minister and current Foreign Affairs Minister Ravi Karunanayake who had been summoned by the Presidential Commission probing the controversial Central Bank bond issue had failed to appear before the commission on two consecutive days last week, and he is reportedly scheduled to appear tomorrow]

In Sri Lanka, one needs to rely more on Dharma/Righteousness  and less on the letter of the law to experience Justice. All three of the above are part of the category  to whom LTTE were Terrorists. Many members of the LTTE were common criminals who became somebody due to their claim of fighting for Liberation of their Community. I believe that each one is entitled to fight as per our own belief and if that involves punishment under the law – they would accept it  gracefully – as Gandhi demonstrated. If they reject the law – they remain unofficial  fighters. 

The former President of Sri Lanka himself  set aside our obligations as per global laws and principles, to defeat the LTTE. All those who accepted that,  have no claim to Equality before the Law now.

The more we react at surface level,  the less our opportunity to have the experience. Yesterday during the Court Process – one issue was about an Interim Order regarding Waste Disposal. One side was the Colombo Municipal Council. The other was represented by a lawyer who kept asking for an extension of an interim order that had already expired. That lawyer kept stating that his client did not ‘abuse’ the facility to dump their waste at a particular spot and that was his reasoning for wanting an extension to the interim order that had expired. Justice Nawaz tried to explain to him over and over again  - that there were no just grounds to extend the interim order that had already expired.  But the lawyer kept going on and on. To my mind as an independent observer – it was simple – the Lawyer was abusing Court Resources to get an order – which to my mind was the parallel of anticipatory bail. Most of us in that Court were waiting to be heard about manifestations that affected us adversely. Mine was unlawful occupation of my Land through the claim of Prescriptive Rights. An even that is yet to happen cannot rank relatively higher status than something that has happened and has already caused pain and loss. Apprehended Pain includes the high possibility of  one’s imagination as the base where the other side has not shown in action  relevant disorder of the mind. An order that is obtained by abusing Court Process automatically qualifies as abusive. Yet, there seemed to be  no direct law through which the Judge could rule this guy out on technical basis.

In that Court – where both sides were represented  and where at least the Colombo Municipal Council was visibly  present through its officers -  there was no clear line of equality before the law during the process. The lawyer who showed more cleverness  had more time than the other side and it was necessary for the judge to satisfy himself that he had heard the more vocal and cleverer member of the legal fraternity. This meant also that others like me – had to be shelved to the fringes of the Court system.  The CID and the Presidential Commission also have to take their places in the queue to know through their own experience the difficulties faced by the ordinary citizens. Until then they do not represent the People in Common.

I recall how I expressed my dissatisfaction with the Administrative  Decisions Tribunal in this regard:

[Ms Paramasivam: No, because I am also offended. You gave Ms Oakley (UNSW’s hired barrister) so long and I have been given only that and already you have discouraged me from…] Appendix 12 of Naan Australian.

Until  Media Personnel have the direct experience in this regard – they must join the Public queue to take their turn in questioning the Government on Accountability. They could of course limit their work to reporting what happened impartially but ensure they do not ‘judge’.  One needs position of authority to judge or the Experience of Truth to judge and submit to the Court of Natural Justice whose judgment is always perfect.

Appendix 12 of Naan Australian

ADMIN DECISIONS TRIBUNAL

In terms of the Justice system – where ‘facts’ are actively produced by all participants in an experience, as in the democratic system – the decision needs to be driven by ‘facts’ produced at that time by the people physically present. Where all physical participants do not produce facts or where facts produced by all participants are not included in decision making, it is not Muruga’s system of observation, identification  and majority vote.

UNSW solicitor Carol Kirby, for example produced through the Adminsitrative Decisions Tribunal the fact that my Sri  Lankan Chartered Accountancy was considered to be inferior to any Australian degree. We were discussing why I was terminated and why I did not get the positions I applied for after termination:

Mr. Bartley (Judicial member of the panel of judges) to me: Interrupting you there, what does all you have spoken to us about in the last 10 minutes relate to, because it’s said that the complaints in respect of which you have come here have not been made out. All you’ve done – and it’s been said you’re mostly complaining about your work conditions and working there and that’s all you’ve been speaking about at the moment and the Anti-Discrimination Act doesn’t cover any of the things you’ve been speaking about. (My complaint was of unlawful racial discrimination at my workplace – the University of NSW)

Mrs. Paramasivam: No, I’m addressing what Ms Oakley (UNSW’s hired  barrister)  said. Whatever she said I’m responding to that and telling you….

Mr. Bartley: But what are you responding to though?

Mrs. Paramasivam: But you did not ask that question of Ms Oakley. Why was she referring to those if they were not relevant to the Act?

Mr. Bartley: Yes, well, go on.

……….

Mrs. Paramasivam: Under educational requirements a degree with substantial experience

Mr. Bartley: No you’ve mentioned qualifications. What Mr. McDonald (Tribunal Member) wants to know, what qualifications---

Mrs. Paramasivam: I have

Mr. Bartley: ---- no degrees or qualifications other than chartered accountancy (Sri Lankan). Is that right?

Mrs. Paramasivam: I do have other qualifications but that is the highest.

Mr. Bartley: No, Listen to me.

Mrs. Paramasivam: Sorry

Mr. Bartley: You have no degrees and no formal qualifications other than chartered accountancy.

Mrs. Paramasivam: No I do have

Mr. Bartley: Well, what other one have you got?

Mrs. Paramasivam: I’m a member of the ---I have qualified to enroll as a member of the National Institute of Accountants in Australia which is a professional body.

Mr. Bartley: Well, you just said you have chartered accountancy but that is ---

Mrs. Paramasivam: Because that to me is the highest qualification, so.

Mr. Bartley: I see, well, that is the only qualification you have. Is that right?

(Confirming he did not think that that was enough to qualify as a degree)

Mrs. Paramasivam: That is not the only one, that’s the highest one I consider.

Mr. Bartley: What’s the other one?

Mrs. Paramasivam: Eligibility to – I qualified under Chartered Secretaries and Corporate Managers here in Australia.

Mr. Bartley: You what?

Mrs. Paramasivam: The Institute of Chartered Secretaries and Corporate Managers

(My Australian qualifications were obtained  largely by using my Sri Lankan knowledge. Hence to me the Sri Lankan qualification was superior to my Australian qualifications)

Mr. McDonald: Right

Mrs. Paramasivam: ---and the National Institute of Accountants

Mr. Bartley: Yes, all right, go on.

Ms Paramasivam: I’m offended that you made that statement that I had no other qualifications. (By now I knew that the UNSW barrister had successfully  indoctrinated Mr. Bartley. That is the whole purpose in bringing in barristers even though the UNSW has its own solicitor and a Faculty of Law in addition to Community Legal Center).

Mr. Bartley: You don’t have to be offended because I was trying to find out what you did have. (Neither the UNSW lawyer nor the panel of judges had the jurisdiction to enter into my suitability for the positions I had applied for but failed to win. As per the UNSW Recruitment Guide even the recruitment panel was not allowed to question the validity of overseas qualifications. Given the opportunity all these lawyers suddenly became recruitment experts. UNSW had the responsibility to produce the objectively measurable outcomes on the basis of Advertised Selection Criteria.  The fact that they did not do that but embarked on the discussion of my merit as per their subjective thinking – established that they did not have the objective evidence. As for Mr. Bartley he was performing miserably  in his position as a legal judge. It was an insult to be evaluated by him for my suitability for employment within the UNSW. My feelings were brought out as follows:).

Ms Paramasivam: But you could have asked me, you could have asked me whether I had any other qualifications

Mr. Bartley: That’s right, yes. Keep going.

Later:

Mr. Bartley: Ms Paramasivam, would you please stop talking. You don’t listen to anything that’s being said to you from the bench today. You’re taking no notice of anything we’re saying to you. If you would just listen occasionally to what’s being said to you from the bench you could find it quite helpful but you seem to have a closed mind that if anyone puts anything to you you don’t agree with that’s the end of it.

Ms Paramasivam: I am listening sir, but….…

Mr. Bartley: Madam, you are not. If you would listen to….

Ms Paramasivam: If I don’t’ listen I cannot answer the points

Mr. Bartley: You don’t answer the point, you dodge around the point, you answer what you want to say. (In other words I was not being meekly obedient to him)

Ms Paramasivam: If you want to discourage me that way that’s fine but I am also trying to tell you what the reality is. (The question of how to measure unlawful discrimination at the workplace  was raised by the lady member of the judicial panel. I was responding to that question and Mr. Bartley got offended – indicating that he was irritated that he had to include all this in his decision making when he was expecting to ‘close’ the case as if I was an ignorant litigant from a remote corner of the world, wasting his Australian time).

And later:

Ms Paramasivam: I think so. You have already discouraged me from doing it naturally.

Mr. Bartley: Look, I don’t want you to be rude, thanks very much. When you come to a court –

Ms Paramasivam: No, because I am also offended. You gave Ms Oakley (UNSW’s hired barrister) so long and I have been given only that and already you have discouraged me from…

When I pointed to the above transcript in the appeal book in Full Federal Court, the chief judge of the appeal court   said that it was the judicial member of the Tribunal that had made those statements and not the UNSW. I said Ms Carol Kirby, the UNSW Solicitor was instructing the barrister who informed the judicial panel. To my simple mind, the UNSW was the only source of that information and analysis. When someone  has vested interest they are no longer judges but are on the side of the interest until they consciously and expressly balance it through affirmative action in favor of the ‘other’ side.   Bartley  was mouthing UNSW  opinions because he was not strongly committed to Due Process or Justice.  It was disheartening to learn that the Chief Judge of the appeal panel of the Federal Court of Australia,  did not know this simple Truth. I concluded that he was already covering up for the UNSW.