What Rule of Law and Separation of Powers?

The written constitution of any democrartic country is underpinned by these fundamental doctrines. Be you never so high the law is above you – these words were famously uttered by Thomas Fuller. But the question that this necessarily begs is – What is above the law? Afterall in many countries the idea of an independant ideal of law is nonsense. Law is nothing more than the handmaiden of politics and we create wonderful institutions and devise elaborate rituals to mask this reality.

Wherein political power resides, therein lies the answers to all questions that have a legal-poltical character. It is useless to try an rationalise it in any other way. Law is ultimately a means to an end within most legal systems UNLESS judges perceive their roles as something distinct and independant from politics. Paying lip service to the doctrine of separation of powers and citing it to make decisions of a political character more palatable – is not what I mean by an independant judiciary.

“Judges rule on the basis of law, not public opinion, and they should be totally indifferent to pressures of the times.” – Judge Warren E. Burger

THE WORLD IN CRISIS

Everyone is in a huff about the global economic slowdown. We are in a global recession and everyone is worried about the future.

My advice – free is the man who expects little and needs even less.

WHO KILLED ALTANTUYA 2?

We now know who killed Altantuya. The question now is WHY?

EULOGY FOR ROTARIAN SIVASHANKER PHF

I am departing from the usual form of articles I post here to commemorate a dear friend who died untimely.

“ He who has gone, so we but cherish his memory, abides with us, more potent, nay, more present than the living man.” ~ Antoine de Saint-Exupéry

God works in mysterious ways. Just 3 months ago, Siva and I were sitting at our regular Rotary meeting. We were having great fellowship and having a few beers, which we did every Wednesday evening. We were talking about community service, politics, religion and our lives. I can still remember Siva going ‘nice’ every time someone cracked a joke or made a funny remark. Siva was a man full of fun and laughter. He had an indomitable spirit and never had a bad word for anyone.

I simply cannot believe that Siva is gone from our lives now because of a heart attack. None of the Brickfield’s Rotarians can.

There are only a handful of people who come into our world, and touch our lives in a dramatic fashion. Siva was one such person. He was a great Rotarian and friend. He lit up every room he walked into with his generous spirit and good nature.

We were so looking forward to him leading our club in the next Rotary year as our President. We know he would have been an outstanding President, just as he had been an outstanding Rotarian. He was a great friend to each and every Rotarian and words cannot express our extreme sorrow – he was a very special Rotarian.

When you are sorrowful, look into your heart
and you shall see that you are weeping
for that which has been,
your delight
~ Kahlil Gibran

I can remember vividly the first time I met Siva several years ago. He was charming, good humoured and had a tremendous enthusiasm for Rotary and for service to his fellow men. He embodied Rotary’s great ideal of ‘service above self’ and we all found it a great pleasure to be in his company. He was a brother to all of us and the word ‘No’ was rarely heard from him. He was a consistent friend, to whom we could turn to for friendship and support.

I can honestly say that there are only a few people who can walk into our lives and change it forever. Siva is one such special person. He taught us that life is short, and that the most important part of life is the people in it.

To his family I wish to say that we love you as if you were our own. In many ways you are. The Rotarians of RC Brickfields join me in saying that we will be there for you in this difficult time. We will try to help ease the suffering that you are going through.

Rotarian Siva, we love you and we miss you more than words can ever express. You have graced our lives more than you will ever know. God bless you and take good care of you.

Farewell My Friend
It was beautiful as long as it lasted
The journey of my life.
I have no regrets whatsoever
save the pain I’ll leave behind.
Those dear hearts who love and care…
And the strings pulling at the heart and soul…
The strong arms that held me up
When my own strength let me down.
At every turning of my life I came across good friends,
Friends who stood by me,
Even when the time raced me by.
Farewell, farewell my friends
I smile and bid you goodbye.
No, shed no tears for I need them not
All I need is your smile.
If you feel sad do think of me
for that’s what I’ll like when you live in the hearts
of those you love, remember then
you never die.
~ Rabindranath Tagore

NEW YEAR AND NEW RESOLUTIONS

The unexamined life is not worth

living. – Socrates

2009 is here. It’s a new beginning and a chance to renew our resolve to do the things we want to. My wish for all of you is that this year you will begin a meaningful journey of self reflection. Understanding yourself better and waking up each day with a greater consciousness as to why you are here.

Life is short, art long, opportunity fleeting, experience treacherous, judgment difficult.
Hypocrites

HAPPY NEW YEAR.

WHO KILLED ALTANTUYA?

The acquittal of Abdul Razak Baginda yesterday raises fresh questions about the prosecution’s strategy in this case. My view is that there are at least 3 possible scenarios:

1. X told some ”friends” of his that he wanted Altantuya taken care of. She was blackmailing him and he wanted her to stop. The “friends” tried to warn her, things got out of hand and they end up killing her to cover up.

2. X ordered the “friends” to kill her – this was the premise the prosecution was working on in the case.

3. X’s “friends” took it upon themselves to deal with Altantuya. Killed her.

X is only guilty of abetting murder in scenario 2. Innocent in scenario 3 but what is X’s liability in scenario 1, which in my mind is the likely scenario.

The prosecution should have examined scenario 1. Think about it.

(MORE LATER)

Civilization 3

“We can only truly respect highly the man who is not seeking himself” Goethe to Rat Schlosser.

The substance of a civilized person is to be found in a noble soul. The nobility of one’s soul is not an inherited trait nor is it conditioned by formal things – like dress, manners and titles.

In my view, no one is born noble. Civilization is cultivated attitude. It is inherent in a person’s attitudes towards life and towards others. It is an intrinsic part of a person’s being. It is a self reflective attitude that makes one examine one’s reasons for being alive. A person who understands his purpose for living and who has empathy for others begins the journey towards being civilized.

People who have lived comfortable lives cannot even begin to understand the essence of nobility. The Guatama Buddha proved this. He had to forsake everything that is material to find himself. The cloak of materialism obscured and hid reality from him. Not the reality of the external world – of others. But the reality of what was within him. It was in suffering he confronted himself. Nobility does not come from rank or position – it comes from within.  Friedrich Nietzsche in his book “Beyond Good and Evil” wrote something very profound that has influenced me greatly,

“The spiritual arrogance and disgust of every man who has suffered deeply — how profoundly men can suffer almost determines their order of rank — his chilling certainty, with which he is thoroughly soaked and coloured, that thanks to his suffering he knows more than the cleverest and wisest can know, that he has known and at some point been “at home” in many terrible far-off worlds, about which “you know nothing!” . . . this spiritual and silent arrogance of the sufferer, this pride of the one chosen to know, of the “initiate,” of the one who has almost been sacrificed, finds all kinds of disguises necessary to protect himself from contact with prying and compassionate hands and, in general, from everything which is not his equal in pain. Profound suffering ennobles; it separates.

One of the most sophisticated forms of disguise is Epicureanism and a certain future courageousness in taste adopted as a show, which takes suffering lightly and resists everything sad and deep. There are “cheerful men” who use cheerfulness because it makes them misunderstood — they want to be misunderstood. There are “scientific men” who use science because that provides a cheerful appearance and because being scientific enables one to infer that the man is superficial — they want to tempt people to a false conclusion. There are free, impudent spirits who would like to hide and deny that they are broken, proud, incurable hearts; and now and then even foolishness is a mask for an unholy, all-too-certain knowledge. Hence, it follows that it’s part of a more sophisticated humanity to have reverence “for the mask” and not to pursue psychology and curiosity in the wrong place.”

I say without reservation and equivocation that he is right. Only those who have suffered and endured difficulty will understand the pain of others. It takes our soul to a different plane and enriches it. It rebrands our view of the world and of others and despite our other shortcomings, makes us feel in a more real way. But even those who have suffered, have a choice. To find the nobility within their soul, and live an enriched live. Or to succumb to the mask. Respect for the mask. That has been the history of human civilization. It is an altogether sad indictment of the human condition – we must strive towards a better existence. One that is rooted in the substance of what is civilized and great.

Civilization 2

“Civilization is the progress toward a society of privacy. The savage’s whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.”

AYN RAND, The Fountainhead

What is freedom? What does it mean to be free? How civilised are we in a world where there exists such great wealth and yet we allow such devastating suffering to exist?

A person cannot claim to be civilized if they do nothing to improve the conditions of life of the destitute and the downtrodden. Most people I know believe themselves to be civilized. Because they speak politely, dress well, eat with etiquette and generally are unoffensive. They spend their lives lamenting the ordinariness of their accomplishments and brood over why some have it so good, like the Sultan of Brunei or the Queen of England.

They aspire towards a better life for themselves – don’t they deserve it! I find such people despicable – and I am afraid may be one of them. Just juxtapose these two images and see if you can find what wrong with the picture that emerges.

What noble ideas I had when I was younger. I believed and still do that to be civilized one has to believe in a ’human race’. One in which each and every human being has the opportunity to live a free from poverty. Empowered to pursue their dreams and realise their full potential as individuals. A world in which each individual is treated with the same respect for his individuality and enjoys the same quality of life. People are uncivilized and vulgar to the extent that they allow others to suffer without rendering any assistance – regardless of how polite they are, how they dress or how they eat.

Capitalism without conscience has perverted human condition and what is happening on Wall Street today is a vindication of those who believe this to be the case. It is a case of ‘false’ wealth created by the greedy for the even more greedy. A case of an edifice without a base. How easily it crumbles. These people have led enterprises that have derided the human condition.

Civilization?

What is it that makes us civilized? Is it the way we dress, good manners, our aesthetics or things like that? Or is it our profound respect for others. We always talk about respect as being an important part of our own self esteem. So why are we less circumspect when it comes to others. Why do our views and values take precedence over those of other people? Is it arrogance that makes us think that somehow our position in any given matter is better. Does that fact that many people agree with our views make our views any better compared to a view that has little or no popular support? This is what I am thinking about these days. I have been accused by many of being arrogant. I think it is because I always think my views are superior. But is it arrogance to believe in ones own position on any subject, to be steadfast in defending it and to be generally happy with that?

I return to the question – What is it to be civilised? I think a civilised human being is one who accepts that nothing about his existence is permanent. Empire builders are not civilised. They have no concept about the meaning of their existence. We meet empire builders of every description daily. They are the politicians who cannot quit power and overstay their welcome – building material wealth for themselves, their children, their grandchildren and so forth for posterity until the end of time. They are the corporate giants, who don’t realise that in the entire scheme of things their contribution will be measured by different benchmarks. They are all the people who yearn for and seek dominion and control over the lives of others – seeking to imprint (by compulsion if necessary) a part of their values and ideas. To shape the destiny of others, failing to realise how little control they have on their own destinies. Whether you are a pauper or a billionaire your impact on your own life is determined by your own mortality and the lessons you are willing to learn during your tenure on Earth.

The Evil That Men Do 2 – John Austin

Let me begin by examining the various juristic traditions and their justifications and possible motivations. I think a good starting point is a theory that asserts that LAW IS POWER.

John Austin’s Positivism
Austin more than any other jurist provided a compact and systematic formulation of a conception of law which allowed an escape from the tradition bound theory implicit in classical English common law thought. He offered a way of looking at law that made legislation central rather than peripheral. Perhaps an indication of the times in which he lived, the gradual secularization of the state and the ascendancy of Parliament over the King and the Church. His legal theory recognized the reality of the modern state as a massive organization of power. Tearing down mercilessly pretensions about justice and its relationship with law.
I repeat a sentiment expressed earlier,
“The science of jurisprudence is concerned with positive laws, or with laws strictly so called, as considered without regard for their goodness or badness.”It is important to understand that the primary motivation for Austin in his jurisprudence was his disenchantment with the English common law. He was generally hostile about judge made law. His teacher, Jeremy Bentham, once wrote that judge made law is like waiting for one’s dog to do something wrong and then beating it. The common law had a reactive focus rather than a pro-active one. It was not a progressive system of law. By contrast, Austin saw Roman law, especially as interpreted and developed by continental civil jurists as the epitome of a rational legal order vastly superior to the English common law in its organization and coherent development. He says of it, “ Turning from the study of the English to the study of the Roman Law, you escape from the empire of chaos and darkness, to a world which seems, by comparison, the region of order and light.”

The Command Theory

The proper “Province of Jurisprudence” is positive law and the ‘key in the sciences of jurisprudence and morals’ is the ‘command’, Austin claimed. For this reason his theory is referred to as ‘The Command Theory of Law’.
“A law in the most general and comprehensive acceptance in which the term, in its literal meaning, is employed, may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”Hence put succinctly: “LAW IS THE COMMAND OF A SOVEREIGN”

The Command
The command is basically an order that is validated by the political system and enforced by the use of sanctions. Hence the idea of command is closely linked to the force that is used to compel compliance.
Austin defines law as a species of command, like Hobbes before him. Austin is direct and straightforward in his characterization of law. For him power is central to law. Thus the sanction is an important part of the command. Austin says that the must be an actual likelihood of a sanction being imposed. This is because for Austin it is the sanction, which supplies the motive for compliance.
Therefore what Austin is saying is that people obey laws because of their fear of sanctions. Austin goes on to say that ‘the greater the sanction and the greater the likelihood of it being applied, the greater the obligation’ under the law. This is essentially a simple idea – Austin is saying that because the penalty for murder is life imprisonment and the penalty for a traffic offence is a fine, people feel under a greater obligation not to commit murder. Similarly he is saying that people are more likely to stop at the red traffic light at 12 noon, then at 2am in the morning because the likelihood of detection is greater at 12 noon.

The Sovereign
The distinctive feature of law is that it law is the command of the ‘Sovereign’ not anyone else.
He says, the sovereign is “a determinate human superior, not in a habit of obedience to a like superior, (and who) receives habitual obedience from the bulk of a given society…..that determinate superior is sovereign in that society, and that society…..is a society political and independent.”
Austin’s concept of the sovereignty is highly controversial. Positive law is the command of the sovereign. The sovereign is an actual person or an assemblage of persons who do not habitually obey anyone but who are habitually obeyed by everyone in an independent political society.
Austin says there are two marks of sovereignty: first, the sovereign must be ‘habitually obeyed’ by the ‘bulk’ of the society (a condition of general efficacy), this being the positive mark of sovereignty, second, the sovereign does not habitually obey anyone else, this being the negative mark of sovereignty. He says two consequences flow from this definition, the sovereign is legally indivisible (the positive mark) and the sovereign is not capable of being legally limited (the negative mark).

Something to think about
Although it appears that commands flow from the sovereign, when Austin’s definition of the Sovereign is closely analyzed, it becomes clear that it is the ability to command habitual obedience that makes someone the sovereign. Therefore the question is: Is it because a person is habitually obeyed that he is able to command, or is it because he is able to command that he is habitually obeyed?

(To be continued)