Gajalakshmi Paramasivam – 26 March 2015
Serious Error in Law by the Indonesian System as well as the Australian System
According to news reports the further hearing of the case against Andrew Chan and Myuran Sukumaran has been adjourned. Is it positive news or negative news? As per Natural Justice it may be positive for me. While reading the news today, I happened to notice that there was a 4 Corners program on ABC on this matter under the title ‘Eat, Pray, Shoot’ – aired on 09 February 2015. I watched it for the first time and felt deeply moved by feelings shared. I cried when I heard Artist Ben Quilty say:
‘I thought, I'm gonna make this happen and I'm gonna make it happen before anything goes terribly wrong, so that those two young men know that there's people here in my community who care for them……… You know, there's a Morgan Gallup poll today that says 62 per cent of them don't think that the Government should prevent these deaths. Well, they don't know my friends. And if you sit in front of these two young men and see their humanity and see how fit and strong and healthy and clear-skinned and clear-eyed they are and, and reformed and amazing and humble and inspirational and then you have 62 per cent of my country saying that they need eight bullets in their chest, well maybe I don't belong in this country.’
When I felt discriminated against at the University of New South Wales and was imprisoned for waiting Peacefully to speak to the Vice Chancellor of the University – as suggested by the Chancellor I was deeply hurt – because it negated my good name earned over years of hard work and sacrifice. Along with other family and community members many members of Myuran’s family signed the petition to Magistrate Pat O’Shane who sent me to prison for a year – even though this did not have the endorsement of the law. That was when I started looking beyond the legal system for solutions. They were there – through the system of Truth that never fails.
When I first resigned from the University of New South Wales – I did so during an urge I felt after hearing Ms Pauline Hanson ask migrants who did not assimilate to ‘go home’. By then I had invested in Public Administration through my workplaces and felt deeply hurt that I had to hear this. In the early hours of 11 August 1998 which was during the holy period of Festival celebrating Lord Muruga of Nallur in Sri Lanka, I wrote to Professor Dowton then the Dean of Medicine – with a copy to the Vice Chancellor:
This morning, in consultation with my husband, I made up my mind to return to Sri Lanka as soon as possible – to a place where I can perform as a Professional in all my creativity.
I heard Pauline Hanson on the 4 Corners Programme last night. Ms Hanson suggests that we go back to our countries of origin if we cannot be like them. It hurts that we even have to hear such things. In the name of ‘Freedom of Speech’ we – the new Australians are being made to lose our freedom to live as individuals. If the leadership of Australia is unable to turn it around – to make up for their negligence in failing to hear the cries of the new Australians – One has to wonder whether Ms Hanson is expressing what these leaders (and employers) feel themselves in their heart of hearts. This is the million dollar question to which I have been seeking a favourable answer – that the leaders of the country to which we brought our children and made them call it their ‘home’ would ensure that it is ‘home’ for our children. But my experience during the past 13 years has failed to deliver the answer that I have been seeking so desperately. When an education institution such as the University of New South Wales also demonstrated that it was no different – I do not wish to waste any more time – hoping.
I am sorry if this causes you any inconvenience, but I am quite happy to hand-over to your satisfaction – to a person of your choice. I am not arrogant to think that I am indispensable – there are so many excellent Accountants in the market (might even ease the unemployment problem!) and I sincerely wish you the very best – for you are a good leader.”
But the way events unfolded not through the official path – but through social sharing and with me trusting myself more and more above others - I ended up staying on in Australia with all its limitations making it my home. Now I realize that this was possible due to my investment in family. We accept family for better or for worse. Likewise a nation. I believe that by staying on I have also added positive value to fellow Australians and through my sharing of Truth to Commonwealth of Australia.
When Myuran Sukumaran’s sister Brintha cried out ‘ I don't want him to die. Why is this happening to our family? What did we do wrong? It's not fair.’ I felt torn. How does one reconcile why it is happening to oneself even though one – in this instance Brintha - has not earned the pain of losing a brother? One who feels like this IS family. In one way if this had not happened – Myuran would not have been so strongly family as he is now. Likewise for me if not for the weaknesses in the Australian system of Justice I would not have felt Australian as deeply as I do now. Family is entitled to be punished at similar level as others in the family. Otherwise their faith in Natural Justice/God – would diminish. Whatever may or may not happen at the physical level – Myuran is more strongly with his loved ones than he was before.
The ability to recognize this is the key criterion to carrying the Power of Clemency. When used without deep belief – the force returns to the person who benefited from the exercise of that power. When the punishment is death – and Clemency is denied despite the person having earned the right to live for his family, community and humanity – as if s/he is part of them and they a part of her/him – the person who fails to rule as God would – gets the karma returned to her/him – in this instance it is President Joko Widodo. Yesterday, was the first day of Sydney Murugan Temple festival and I am praying that to all Australians and Indonesians working for Justice in this matter – their respective countries would be ‘home’ and that to those using International Laws – the Globe would be their Home.
The role of the Australian Police also needs to be questioned in this regard. As per the ABC report, the Australian Federal Police (AFP) stated ‘The AFP was unaware of the hierarchy of the syndicate, the identity of all syndicate members or the source of drugs that may have been imported. Additionally, Myuran Sukumaran was not known to the AFP prior to his arrest on 17 April 2005’
The way the New South Wales Police did not know about me – the AFP may not have known about Myuran prior to the arrest. But in both instances they would have been fully aware of the corruption in the institutions through or on behalf of whom they were acting. Yet, the Australian Police went ahead to show their cleverness. This has resulted in serious Error in Law. I wrote recently in a Northern Sri Lankan matter:
[The Mind that makes the decision is required to be in such state as to receive information through the law . When information is recorded in a some other order – for example cultural order or through hearsay - the decision would not have been made by the law but by the cultural or surface order of thought. These do not have validity in a Court of Law. The Law of Thesawalamai itself is a Customary Law and facilitates particular parts of such Cultural Order to be recognized as lawful orders. ]
Whether it be the Australian Police or the Indonesian Judiciary – they had the duty to be the LAW when judging at the highest level of authority at that time at that place. In terms of the President of Indonesia who had the power of Clemency – he needed to have been Lord Himself when making judgment above both the legal and/or administrative systems. This is essential even if the punishment does not involve death. If not it is in breach of fundamental human right to be free of punishment by outsiders.
According to the above reported response:
‘The AFP has been, at all times, transparent and accountable in relation to its actions on this matter, and has always acted appropriately and in accordance with Australian and international policies and guidelines.’
Did they make sure that the Indonesian Authorities whom they empowered with knowledge gained by using Australian Public Resources – were also Democratic and therefore would be Transparent and Accountable? How can there be any valid International Policy without there being in place a Common system that upholds and protects the values of Equal Opportunity to Live - the basic right of all beings?
As per the above response:
‘On 23 January 2006, as a result of an application for preliminary discovery, Justice Finn of the Federal Court ruled the AFP had acted lawfully and in accordance with all legal obligations when it disclosed information to the Indonesian authorities which ultimately led to the arrest of the ‘Bali Nine’.’
As per my direct experience with the Federal Court system – there is not a single judge in that system who has the courage to use Discretionary Powers through personal Belief to rule against the Executive to uphold the Belief of a migrant seeing through Equal Opportunity Laws. They do not have the courage to use Truth in applying Equal Opportunity Laws. As Artist Ben Quilty stated ‘they don't know’ A Court that is for the People would have first gotten to know – not only the persons being punished but also the authorities that are using the law to punish them. The same ‘International Law’ would be applied differently by different minds – as per their respective interpretations. These would be right even if they looked different on the outside - if both are of the common belief in that International system – as in the case of Executive Decisions being independent of Judicial Decisions. Towards this the two interpreting sides need to be Independent and therefore Equal in status. Are we saying that Indonesia and Australia rank equal in Human Rights? As per the UN listing of Human Development – Australia ranks 2nd whilst Indonesia ranks 108th. How could we make bilateral agreements of cooperation knowing that there is no common belief in relation to the Right to Life? The Australian Federal Police is reported to have stated in 2006:
‘MIKE PHELAN (2006): Even with the aid of hindsight, should the same set of circumstances present themselves again, with another syndicate or other people, we would do exactly the same thing.’
And who was the Head of Government at that time ? - None other than the Australian version of President Joko Widodo - Mr. John Howard!
If Bali 9 are punished by death Australian Government has primary responsibility for that portion of the punishment above the level endured by other Australians punished for similar offenses in Australia. Even if 90% of Australians oppose and/or are indifferent to the support provided to these victims of unethical International Legal systems – the Government must act to Protect and Redeem the Rights of Australians – even if it is just one life.
Professor Hikmahanto Juwana, Head of Law at the University of Indonesia and Advisor to the Indonesian President, stated during his interview on ABC :
[HIKMAHANTO JUWANA: Still, this is a matter of the court to decide. Er, it is not the president who has to look over and examine. I was going to say that, ah, the president, when he refused the, er, clemency and pardon, he also got advice from the Supreme Court because, under our laws, that Supreme Court has to give advice whether the president will give clemency or not. And I suppose that the president has, er, taken that advice but he's adamant to say that, ah, execution has to go ahead.]
If the Supreme Court advised the President – then it is a higher Legal Decision and NOT is not a Decision independent of and beyond the Legal system. Then it must go through proper Appeal Process and NOT be ruled as per the personal belief of the Head of State.
I do believe that unless Indonesia agrees to go through this Appeal Process for a Judgment Review – Australia needs to go to the United Nations to bring about an injunction on the Death Penalty in Indonesia through its Legal system.