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When I was asked recently, in fulfillment of my work on the Human Rights Action Plan, to assist the Ministries of Justice and of Child Development and Women’s Affairs to finalize the draft of an act to replace the Children and Young Person’s Ordinance, I was struck by the absurdity of a phrase which did not seem to worry anyone else at the consultation.

It related to proceedings conducted before a Children’s Magistrate’s Court (which the law sought to establish), and laid down that ‘The Chief Justice and any three Judges of the Supreme Court nominated by the Chief Justice may frame rules regulating the procedure to be followed’ in such proceedings. Leaving aside the question of the Chief Justice selecting any three judges, where I believe there should be greater precision to prevent arbitrary choices, the clause seemed to me wholly wrong headed in making such rules optional.

I was given what seemed to me two mutually contradictory answers when I made the objection. One was that the word ‘may’ in such contexts was generally held to create an obligation to act. The other was that, if there were a ‘must’ and action was not taken, then the law could not come into effect.

If the legislature wanted such rules in place – and obviously there must be rules, to prevent inconsistencies and irregularities – then it should not only make that clear, but should ensure that those rules were in place. My suggestion then was that the clause should read ‘…..shall frame rules regulating the procedure…within one month of this act coming into operation’.

It was granted that this might be effective, but then the question was raised as to what would happen if the Chief Justice failed to make such rules. The answer seemed to me simple, namely that a failure to abide by laws passed by Parliament indicated incapacity, and should therefore warrant removal. Alternatively, Parliament could decide that, were rules not formulated as laid down in the Act, Parliament would then formulate such rules itself. Read the rest of this entry »

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Rajiva Wijesinha

June 2013
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