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

One area in which the Human Rights Commission has an vital role to play, in terms of the National Human Rights Action Plan, is that of training the judiciary. This cannot be done easily by another branch of government, since it would not do for the executive to trespass on the independence of the judiciary. At the same time it is important that the judiciary observes high level norms in its operations, with regard both to its professional decisions as well as the administrative rules it sets for itself.

Foremost amongst these is the need to establish a mechanism to ensure that justice is swift. The number of dates given to lawyers is positively outrageous now, but one can see why magistrates and even judges give in to pleas. In a context in which indulgence is the norm, to stand out against this is difficult. The result is endless delays in settling cases and mounting expenses for litigants, including the state.

The answer is not easy, but the judiciary, with guidance from the HRC in terms of the Action Plan, should set itself benchmarks with reporting requirements from judges and magistrates. There should be performance indicators which should be examined and upon which promotions should be granted. Fortunately the present Chair of the HRC had tried to institute something of the sort when he chaired the Judicial Services Commission, and is therefore in a good position to encourage compliance with whatever regulations can be developed.

It would also be good if the legislature made it crystal clear that limits it imposes are mandatory. Too often the practice has arisen of courts deciding on their own that principles are directive. I believe what the legislature lays down must be treated seriously, though given that legislators are fallible, there should be provision for judicial review of legislation, and also for recommendations for change that could also correct any injustices. This for instance should have been the way in which the problem about mandatory sentences for statutory rape was dealt with. The law is perfectly acceptable in most cases I would suggest, but I can see the problem one magistrate had with a harsh sentence in a case which involved consensual sex, and marriage, the only problem being that the girl in question was under age and therefore consensual sex had to be treated as statutory rape.
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Rajiva Wijesinha

May 2012
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