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The full series of Sri Lanka Rights Watch as well as the National Action Plan for the Protection and Promotion of Human Rights 2011 – 2016 are available on the Peace & Reconciliation Website

I was recently sent an article which suggested that in Sri Lanka sexual offenders went scot free.  Coincidentally we had been discussing this matter at the last meeting of the Task Force of the Inter-Ministerial Committee on implementing the National Action Plan on Human Rights that I convene, given the seriousness of the matter. It had in fact also raised concerns when we were formulating and finalizing the Action Plan. The article, I was happy to note, had identified the problem accurately, and noted that the problem lay with the judiciary, which has – and again I must commend the writer of the article – given in to arguments used by ‘several criminal lawyers’.

The problem arose from what seems to me clear violation on the part of the judiciary of the express purpose of the legislature. I have long understood, and before I got into Parliament too, that talking of the express purpose of the legislature is not very sensible, given the absence of express purpose on the part of most legislators including myself on most issues. But that does not take away from the fact that the Courts should not, in the course of interpretation, pervert clear prescriptions in laws. The rot started – or perhaps this was when I first realized the significance of such interpretations – when the Constitutional Court decided to ignore the law that said a judgment had to be delivered within a specified period, and claimed that that provision was what they termed directory rather than mandatory, ie the Court followed it if it saw so fit, and ignored it otherwise. This is a clear nonsense, but it has got away with this view. Another example was when the decision of the Legislature to allow for divorce based on mutual consent was perverted by a judge who doubtless thought himself very moral, and reintroduced the concept of fault based divorce alone.

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Rajiva Wijesinha

May 2012
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