by Gaja Lakshmi Paramasivam
Professor Craig Scott
Professor of Law
Osgoode Hall Law School
York University
4700 Keele Street Toronto,
Canada M3J 1P3
15 February 2011
Dear Professor Scott,
(February 15, Melboune, Sri Lanka Guardian) I refer to your article published under the above heading. It was forwarded to me by an Australian of Sri Lankan origin. To me, the person forwarding the information is as important as the information.
You state in concluding the above article, ‘The situation of “valuing stability over freedom” is only worsened when personal relationships deepen the coziness. It is not just that a layer of complexity is added, but that a different ethical dimension enters into play. Secretary of State Clinton’s family ties – including her inclusion of the Mubaraks as “friends of my family” and including whatever special access her husband’s nostalgia for his Rhodes years may provide Sri Lanka’s Peiris – become part of her political accountability. As such, Clinton – and by extension President Obama – need to find a way to create critical distance between her friends and the foreign policy of the United States.’
Professor Scott, as a Law expert, you surely must know about the use of Discretionary powers of Judges in concluding a matter, towards delivery of judgment. Politicians are also allowed to use the parallel of that albeit without giving reasons. I quote below, from our submission in a legal matter that came before the Australian
Courts: IN THE SUPREME COURT OF NEW SOUTH WALES:
COURT OF APPEAL AT SYDNEY - CA 40290/07 - Pradeepkumar Deva v University of Western Sydney
The Appellant’s submission included the following:
I refer to paragraph 35 where the respondent claims ‘The appellant’s construction would render s92(1)(a)(v) nugatory because any Act other than the AD Act necessarily can involve different legal questions or consequences arising form the same sub stratum of facts’. The key words in s92(1)(a)(v) of the ADA and s46PH(1) (d) of the Human Rights & Equal Opportunity Commission Act are ‘the President is satisfied’. In other words, there is no need for the President to show connection between the judgment/decision and the principles / laws. Where the President does show the connection, it contributes to building administrative rules towards Objectively Measurable outcomes, comfortably usable by independent members of the Public. Discretionary powers are provided for, so that Presidents could operate within their allocated resources. This is an intuitive decision on behalf of the organization on the basis of wisdom about the balance between the costs and benefits within the control of the organization. Discretionary powers cannot lawfully be used before administrative rules and policies have been fully exhausted.
Professor Scott, our Courts did accept the above submission favorably and they expressed that by dismissing the decision by the Administrative Decisions Tribunal.
To my mind, every position has discretionary powers. In fact every individual has natural discretionary powers. ‘User Pays’ facilities depend heavily on this. To my mind, when decisions are made through discretionary powers, they are within sovereignty of the individual / position / institution / country. These tend to be much wider in diplomatic missions – largely due to lack of Common Administrative Measures.
You state in relation to American Secretary of State ‘The situation of “valuing stability over freedom” is only worsened when personal relationships deepen the coziness. It is not just that a layer of complexity is added, but that a different ethical dimension enters into play
If the decisions and actions made were within the Administrative limits – they are a matter for the respective Administrative bodies. If made beyond these limits but no one feels that their sovereign rights have been affected – then they need to be accepted as the right decisions, until proven otherwise. The problem with these is that they would work well only if the decisions and/or challenges are as per the conscience of the person. By its very nature, the provision of discretionary powers protects the person from personal work related injuries, through the administrative system and the judiciary. But on personal basis – the decision maker is at grave risk of being personally injured if even one person genuinely hurts through that decision. It’s like playing god.
Like the foreign ministers of Sri Lanka and America, we also exercise these discretionary powers to complete projects in Sri Lanka – especially in war-torn North & East.
You state ‘Clinton – and by extension President Obama – need to find a way to create critical distance between her friends and the foreign policy of the United States.’
If they did keep within their administrative systems as they stand today – the gap between the haves and have-nots would be too wide and hence we would not be able to complete many of our experiences through our faith in the respective leaders.
If you feel personally affected by these decisions, you have the right to ‘sue’ them – including through the media. May I ask you to please share with us – the real value of yours that has been damaged by any of the decisions, and what pain you personally suffer through those decisions. If you are not able to find any such value as per your conscience, you may need to ask yourself whether you are acting in breach of the Doctrine of Separation of Powers between the Judiciary (legal profession) and the Executive Government (Politics). This Doctrine to my mind, is about faith and our discretionary powers to use them in our natural environments. Like the auditor who has to stay away from management of a client – the legal expert also needs to stay away from the process of politics but use the published outcomes to criticize and ‘show’ the damage.
There is a good example of this in our Hindu Legend Ramayanam. Ravana, the king of Lanka abducted Rama’s wife Sita. Ravana tries in many ways to attract Sita but without success. Ravana had developed the ability to change form and look like another person – as is the way of Maya / Delusion. Hence his minister asked him ‘Why don’t you take the form of Sita’s husband Rama?’ Ravana responds ‘I tried. But the moment I took Rama’s form, my mind became that of a “one woman man”.’
The moment lawyers start thinking like politicians and/or v.v., we have acted in breach of the Doctrine of Separation of Powers essential in a democracy. Then our conclusions would be –premature and misleading – and are not likely to lead us to the Truth – the Truth that is the seat of Discretionary Powers that protect our Fundamental Rights / Sovereignty.
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