Thursday 9 April 2015

Gajalakshmi Paramasivam – 09 April  2015

Democracy & the  Judiciary

When asked whether we believe in God – most of us say ‘yes’ in various ways. But not many of us would identify with the role of that God in the benefits we enjoy and credits we attribute to ourselves. When it comes to taking credit it’s usually ‘I did it all’ by the person in physically possession of the wins/benefits.   Is God’s system democratic or autocratic? To my mind it is based on Truth. It does not need any particular system – but just belief would do. Truth is another word for God. When Truth is manifested at the physical level – it has two Equal and Opposite sides. Likewise when two Equal and Opposite facts are brought together – they confirm Truth. That is the law of Nature – the Mother of all systems. The Balance in the logo of the Judicial system confirms this Equality in the Natural Law of Truth and its  importance to the Judiciary.

In the Daily News article ‘Judiciary has no voice’, Samangie Wettimuny concludes ‘Democracy can’t exist without respect for the Rule of Law. Ultimately what is required by the country is a strong professional Bar which will be a deterrent to any attempt to undermine the Rule of Law.

Which interpretation of the Law – the Democratic or the Autocratic interpretation does a country need? In Democracy the interpretation of the litigant with the experience at the center of the matter must come before the interpretation of the  Executive Government or the Judiciary. Democracy cannot exist without respect for the Citizen’s genuine experience. Use of law and high flying legal languages should be limited to giving framework to the citizen’s experience. When the Executive Government facilitates the citizen’s experience to be raised to the Public level through its interpretation of the law – not many matters would need the resources of the Judiciary. Then through its very existence and belief based knowledge – the Judiciary would keep its internal systems strong and functioning as an alternative Government for those who are not able to find solutions through the Public Administrative system.

Lawyers, like members of most professions are driven by money, status and finally ethics. The greater the component of ethics in their thoughts the stronger the health of their profession. Recently, a Sri Lankan said to me that lawyers lie to win. Not only lawyers but citizens who come to courts also lie to win and win quickly.  Where what happened  is submitted as ‘facts’ through an affidavit by a lawyer – (happens all the time here in Australia) – the client does not even have to come to Court. Then it becomes one lawyer’s cleverness over the other’s or where a litigant is self-represented – it is the lawyer v the citizen. The lawyer usually wins against the citizen who expresses Truth. It is the lawyer’s home-ground and show of cleverness ranks higher than the Truth of the litigant. Where such show of legal work goes beyond the level needed to provide structure to the matter at the level of the litigant with higher investment in the experience – the Courts become Political – as we are learning about the Indonesian Legal system – through the Bali 9 matter.

In one instance recently – Sri Lankan lawyers and judge were discussing Uberrima Fide in Mallakam Local Courts where almost all of the members of the Public present and the litigants would have been clueless about this principle.  When this happens / is allowed to happen – it is confirmation that we have gone below Administration into Politics – one sided discussion to boost the status of the Judiciary. A Court where the Truth independently submitted by litigants who have had the experience is given lesser importance than the expressions and presentations of the Judiciary – is NOT a democratic Court. That first rule of Equality between theory and experience is essential for a Court to qualify as a Democratic Court and a Judiciary to qualify as a Democratic Judiciary.

 I allowed myself the insults and failures through the legal systems of Australia and more recently Sri Lanka – but never deviated from MY duty to the legal system. MY duty was to bring my Truth to keep that Balance carried by Lady Justice – steady and still at the highest level of MY experience.   The Judge in a court may not deliver – as per that Balance. But the ultimate Court to which Truth travels is the Court of Natural Justice.   The Judiciary in my case was the last step before it went into the Lord’s Court. In most instances – the Truth of the citizen never gets to the Court. This makes the Judiciary irrelevant to the majority. To them the Police is the Judiciary – even though they are officially part of the Executive.

The above author states ‘The Police are an indispensable element of law enforcement. They are often the citizen’s first point of contact with the administration of justice. Hence it is necessary for the BASL to have a close watch on the police as well. When asked what should be the ideal role of the BASL with regard to Police, Minister Rajapakshe said that during his tenure as the President of the BASL there was a joint effort by the Attorney General’s Department, the BASL and the Judicial Services Commission to have a close watch on the Police. Circulars were issued to Police when necessary. As Minister Rajapakshe noted the system he introduced with regard to Police is still in existence.

This to my mind is in breach of the principle of the Doctrine of Separation of Powers. The Bar Association of Sri Lanka (BASL) needs to be an Observer and not a participant. The Doctrine of Separation of Powers requires the Judiciary to produce its own independent Reporting to the Public AFTER the Public or the Executive produce their outcomes and bring them to Court – as institutions do for Audit Purposes. The Police are like Internal Auditors and are NOT part of the Judiciary.  Taking it to the entrance of the Judiciary is the responsibility of the Police and Litigants. The Judiciary has no jurisdiction to ‘watch’ Police. They need to have their eyes shut – until the matter comes into their jurisdiction through Due Process.

In my article Transparency or  Victimization? at ,  I have discussed this Separation of Powers – through Auditor and Management roles. The Producer of outcomes needs to be separated from the judiciary. Without strict adherence to this independence through Separation of Powers – the Political system / Management with high powers that come with democracy - becomes corrupt and the Judiciary becomes dependent of the Political system / Management.  Both groups may produce different looking outcomes for the same matter but both would be right provided they were independently produced. It is like the Separation of Powers between Mother and Father where activities are undertaken through different types of skills/specialties. The same dish cooked  by a homemaker would taste different to that dish being cooked by a moneymaker. The primary reason is that one is ‘internal’ like the Police  and the other is ‘external’ like the Judiciary with the Reporting Responsibility. This external process begins where ‘internal’ ends. Internals should not get involved to change the outcomes once the matter comes to Court. It is the responsibility of the Executive / the Litigant to raise the experience to the Public level without any distortions.  Often those driven by quick outcomes – tend to take shortcuts and hence lack ownership in the Judicial system itself. 

One who invests in the Judiciary through Truth does work the system through the Truth in others  and if there is no medium within the Judiciary to recognize, register and/or deliver as per that Truth at that level – the system of Natural Justice waits and/or manifests through another medium independent of the Judiciary.   In any event – one who believes is never let down by Natural Justice.  We just need to know the difference between belief and externally influenced thoughts.  Once the latter are eliminated / diffused – we would identify with the returns as per our own Truth. 

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