Gajalakshmi Paramasivam

03 October  2019

PERFORMANCE INDICATORS AND BEYOND REASONABLE DOUBT

On 11 August 1998 I wrote in my letter to the Officer in Charge – which letter was effectively my letter of resignation:

[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 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 educational 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.]

That was an indicator from within the ‘Australian system’. The value of this happened on 20 November 2003, when Mr. Sendt – the NSW Auditor General wrote in response to my Public demand for him to pay his Dues as an Accountant:

[Ms Param, I fully understand that auditors are not to participate in the management of the entities they audit. That is basic. What I said in my report is that external financial reports only give a partial view of the performance of many public entities. Such entities are not established to earn a profit or a return on assets, but to provide services to the public. So to give a true and fair view of how well they are providing services, they also produce non-financial performance indicators. If financial reports are required to be audited – to give the public confidence in their accuracy – then so too should the performance indicators. I fail to see how you can state that this is participating in the management of the entity.
Bob Sendt
NSW Auditor General]
[My response to the above indicates the deep wisdom I have in Audit and Compliance, largely based on my Sri Lankan training:
Thank you Mr. Sendt for  the prompt response. Most progressive organizations produce both – Financial and Non-Financial Performance Indicators. They  are both for MANAGEMENT purposes and reflect the THINKING and WORK_IN_PROGRESS. If you use Performance Indicators – then you are thinking with them. This is like the Executive Government participating in the Judicial process. Your Non-Financial Reports are the Legal records that these organizations are required to maintain – such as the Recruitment and Employee Assessment records. Where there is a big gap between Law and Practice – it requires YOUR staff to do the additional work. Taking the Performance Indicators distracts you away from this work. It is in breach of the Doctrine of Separation of  Powers. These organizations must be allowed to confidentially do the cooking and it’s up to your staff to do the spy work from the finished product to the LAW and not to their dreams and goals. You are seeking the short path because your staff are not trained to find out from the client staff what is going on. Staff often ‘hide’ information from you because you are third party. So they should. That way your staff would improve their skills. Using client-staff’s work-in-progress deters your staff from thinking through their own specialty = AUDIT on the basis of existing LAW. Then we would become a uniform society instead of a diverse society challenging each other – you within the existing law and the operational staff towards tomorrow’s laws. Challenging leads to creativity – as you can see from me. Gandhi also said that the night he was thrown out of the first class compartment of the South African RAILWAYS was his most creative experience.
You need to get the client organization to publish their non-financial reports that are mandatorily maintained. Public service organizations primarily make goodwill. This can also be positive or negative – profits or losses. They are collected together and are balanced with the total costs through Common Funds. It will be useful for you to develop a standard dollar value for these legal requirements so the People can SEE and know the Truth. Your role is not to help them make a profit but to report whether they are and how much. How about doing one on UNSW? Or State Rail?
Thank you again for responding. It has helped deeply.
Regards,

Gaja]

Had I been an ‘insider’ of the Government system – my mind would have accepted the internal standards of majority by understanding their ‘reality’ . But when I got hurt by the very insiders – when I tried to ‘transform’ them internally – I had to become an ‘outsider’ and show the connection between cause and effect. In the case of Auditors – they need ‘evidence’ of wrong doing and hence have to ‘wait’ as independents before accusing. Likewise, between religious groups. Right now – it is about the Sri Lankan Judiciary’s independence in the case against Mr Gotabhaya Rajapaksa.

To me the above is the best example of ‘Beyond Reasonable Doubt’ rule required in Criminal Trial. I knew beyond reasonable doubt that so long as I upheld my diversity, I would not be recognized on merit basis for my contribution to Australia . Eventually I expressed this through Racial Discrimination Act 1975 – despite the many dismissals by Australian Judiciary. Now I know that I was heard in the highest court of all – the Court of Natural Justice.  

Yesterday, when many of us celebrated Gandhi-Heritage, Attorney at Law Canishka Witharana’s article headed ‘Article 9 of the Constitution in the Spotlight’ was published by Ceylon Today.  The lawyer-author states in this as follows:

[British rulers recognized the unique status of Buddhists and gave free right to erect temples of worship. However, it was made mandatory for the other religions to obtain licenses to erect such places]

One comes to the conclusion that according to this lawyer – Article 9’s origin was in British mind.

If this had been practiced – the effect is that the Government had/has  the duty to fulfil the following requirement in Article 9:

[while assuring to all religions the rights granted by Articles 10 and 14(1)(e).]

The above two articles state as follows:

[10. Every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice.

14. (1) Every citizen is entitled to – (e) the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice and teaching;]

These are Universal and are not particular to any religion. Hence, one is entitled to conclude that non-Buddhists who practice the law as per the above two articles – become global minded whist Buddhists who are protected by Buddhist laws become Buddhist minded.

In his article headed ‘Who is afraid of Gota? The law of the land is not’ Raj Gonsalkorale states:

[Whatever fears anyone has about any of the contenders for the presidency, what will guard the country from anyone who may wish to act above the law, is the law itself, its independence, its application without fear or favour and its dispensation of justice. However, it is not the opponents that should concern the general public of the country. It is whether the law will be upheld and applied justly and fairly, and the fundamental norm in law, that accusations are proven beyond any reasonable doubt is upheld when dispensing justice.]

As per my understanding – the test of ‘proven beyond reasonable doubt’ has to be satisfied in relation to criminal charges. Raj continues as follows:

[The battles against the LTTE had usurped the law of the land and usurpers were plenty then. The LTTE did not adhere to conventions and at times, non-conventional methods were needed to counter terrorism heaped on the country. Lest we forget, those days, more than 10,000 of them over 30 years, were not safe, happy and contented times for the country. ]

If non-conventional methods are acknowledged to have been used – given that civilians got killed in the process – and civilians who lost members of family are still hurting – the following question needs to be asked as per the Universal Dharma which ‘Beyond Reasonable Doubt’ requirement is part of:

Did Mr Gotabhaya Rajapaksa apply the test of ‘Beyond Reasonable Doubt’ when he gave his orders – according to which Non-Buddhists were killed in combat and most if not all of the civilians killed and injured were Non-Buddhists. Did Mr Rajapaksa find out about the religious practices of Soorasamharam in Hinduism and Jihad in Islam to know whether in the minds of the Hindu community and Muslim community respectively – the actions of the accused were known Beyond Reasonable Doubt’ to be crimes/terrorism ?

How does one apply this test? It is based on the Blackstone principle of "It is better that ten guilty persons escape than that one innocent suffer".

Once the Hon Philip Ruddock said to the Australian Tamil Community – words to the effect ‘It is better to leave punishment to the Lord’. Gandhi said likewise. My interpretation is ‘It is better to leave punishment to Common Belief’

Belief being absolute power – if we are the judge / jury  - our truth would internally divide as ‘right and wrong’ or to an independent as ‘cause and effect’. If I was  right - to that extent I will identify with the wrong in the accused. Doubts within that limit would be cleared in my own mind as per my belief in that person as if s/he were a part of me. Beyond that I do not have rights that would clear wrongs – because we are not common. Hence I do not have the authority to find the other guilty and therefore punish the person – beyond that point.  

The next question is – what happens if I do punish that person beyond my own belief – that we are One?

As per the law of karma the punishment  returns to me.

Raj continues to state:

[Those who fear Gotabaya Rajapaksa for his unconventional methods to fight terrorism, although its yet to be proven that he used unconventional methods, should take their minds back to the time of the second uprising of the JVP in the late 1980s, when UNP leaders like J.R. Jayewardene and R. Premadasa, and ministers like Ranjan Wijeratne, used harsh methods which may be regarded as unconventional to put down that uprising. It is said that thousands died during that conflict although hardly anything is mentioned these days about the period of fear.]

All of the above three leaders are Buddhists. To the extent JVP was majority Buddhists – only Buddhists are entitled to judge through ‘Beyond Reasonable Doubt’ test. That is the protection given to Buddhists through Article 9. If we had a non-Buddhist president – then the test cannot be applied by her/him and a Buddhist  jury would need to be appointed to make judgment. In the case of Tamils – NO Buddhist leader had the authority of the law to find the person guilty of Terrorism.

Since the government decided and acted on it – one is entitled to conclude that the karma is returning including through the citizenship case against Mr Gotabhaya Rajapaksa.  Since it is a civil case the test is ‘Balance of Probabilities’ test. One side would state that it happened ‘this way’ and the other would say it happened ‘that way’. The credibility of the sides – is crucial in deciding the validity of evidence. Only facts that are confirmed by evidence are admissible. The stronger the evidence that something happened – the stronger the probability that it did happen. To my mind, it sort of works backwards – where evidence that is accepted gives form to ‘facts’. The rest of the ‘alleged facts’ become inadmissible.

In the ‘Beyond Reasonable Doubt’ test – the truth of the individual was the basis of the test of the ‘moral eligibility’ of the judge/jury. In the civil case the evidence confirms the admissibility. One wonders whether the karma of removing independent witnesses in the 2009 war – has returned in the form of  documentary evidence in this civil matter. The Ultimate Judgement is by the genuine victims who did not have the protection of the law. They are empowered by the system of Karma.