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qrcode.29720651We have looked thus far at Parliament, the legislative branch of government, which is supposed to pass laws and also monitor the work of the executive. Then we looked at the executive, the active functioning branch of government, and considered the various duties it should perform,

Third we should consider the judicial branch of government, which was considered the only other one at the time the theory of the Separation of Powers was enunciated with regard to government, There are I believe other elements that the public also needs to ensure its security,  from society in general as well as an over powerful government. But there is no doubt that the judiciary is the most important restraint on those who would violate the rights and freedom of the people, and we should therefore look at it in some detail.

Types of law

As we have noted previously, one of the most important functions of government is ensuring the security of its people. When we think of security, it is defence that first springs to mind—the work of the security forces in dealing with external threats. But what is more important in the day-to-day lives of ordinary people is internal security, namely ensuring that law and order is maintained.

Basic concerns in this respect can be seen in the commandments issued by religions, even before codes of law were developed. All religions, for instance, prohibit murder and robbery. Even though such actions are perpetrated by some individuals against others, it is recognised that they have a bearing on society as a whole. Such actions are termed criminal acts, and dealing with them is seen in most societies as the direct responsibility of the government. Unless stern action public action is taken in such cases, the security of the entire society is threatened.

When a case is brought under criminal law then, it is the government that prepares the case and prosecutes the accused. Since these are serious issues, and punishment is severe, the guilt of the accused should be clearly established. It is necessary, therefore, in such cases that the prosecution proves its case beyond reasonable doubt to avoid punishment of the innocent. Otherwise, the accused is acquitted.

Other offences, though defined and dealt with by the law, are seen as affecting individuals alone. So cases such as disputes about land or contracts, or those involving personal relations such as divorce, come under what is termed civil law. In such cases, one person makes a complaint and someone else must respond. They are decided on what is termed a balance of probabilities since a decision has to be reached in favour of one side or the other and the plaintiff and the respondent have to be treated equally. So even a slight inclination to one side of the balance is sufficient for a ruling in favour of that side.

There is also a third type of law which has gained importance in recent years. This is constitutional law, which comes into play when the government is seen as violating the rules according to which it must govern. One aspect of this law is seen in operation when the government wishes to introduce new laws or change the constitution. The courts should decide whether such new laws or changes are in accordance with the existing law. Sometimes governments wish on their own to verify whether their proposed actions are legal. Citizens or groups of citizens can also petition the courts to seek clarification or present arguments alleging that particular bills are unconstitutional, and the government may respond to these petitions. Read the rest of this entry »

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Following the consultation at which the Probation Department produced an illuminating note about Children’s Homes, members of the contract group worked out suggestions to prevent what might be termed SECONDARY VICTIMISATION OF children brought before the courts. Though procedures have been laid down, they are often observed in the breach, as with the failure to specify and enforce limitations on those deemed to need care and protection.

This is unfortunately not unique in Sri Lanka for similar things happen with regard in general to those who are remanded, and in particular women arrested under the grotesquely outdated Vagrant’s Ordinance. This has been noted and a few years back reports were commissioned to proceed with reforms. But not all the reports were handed in, and they seemed to have been long forgotten, when we brought the matter up at the Parliamentary Consultative Committee.

One report that had been completed, characteristically, was that of Shiranee Tilekawardene, and it made some excellent recommendations with regard to children. However, again perhaps characteristically, it has not been acted upon systematically, one excuse given being that the Ministry was waiting for all the reports to come in.

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The way in which government can be careless when there are no clear systems in place became clear to me last week, at a Reconciliation meeting at the Weli Oya Divisional Secretariat. This Division was allocated a year or two back to the Mullaitivu District. I gathered that some parts of it had been in that District previously, but had been transferred to the Anuradhapura District when Tiger attacks had left the Sinhala population there feeling defenceless.

I am glad therefore that the transfer was made, because the idea of provinces belonging to different communities is preposterous. It should be confined to racists such as the Tigers, as when they drove Muslim populations from the North. But in making the transfer government should also have thought of the services that should go along with such units.

Education for instance still seems to be run from the Kebetigollewa Zone. At a meeting next day with Northern Province Education Ministry officials, I was told that Weli Oya had in fact been transferred to a Zone in Mullaitivu, but the people of Weli Oya were not aware of this. They had sought question papers for term tests from Kebetigollewa, and been promised these, and then the offer had been withdrawn.

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Last week saw yet another example of the slow erosion of systems that makes justice so alien a concept for our people. In Parliament we received yet another Bill cointaining amendments to a previous Bill.  It will be taken up only later, so I was not surprised that the original Bill was not available, since anyone interested could look it up in the interim in the Parliament Library. But once again I found that the notes at the side of the document, which are supposed to sum up the content of each clause, simply noted that the clauses were amendments to previous clauses.

The summing up, I should note, had been included at the beginning of the Bill. This does not happen always, so one should be thankful that this time at least anyone looking at the Bill could find out at a glance what was happening where. But I fail to understand why a custom designed for convenience, to allow anyone looking at the Bill to see immediately the impact of each clause, is now ignored. The only place where it still prevails is in the last two clauses of the Bill, where a note on the side tells us exactly what is in the Bill itself. One notable piece of information thus highlighted is that, where versions of the Bill in different languages are different, the Sinhala text shall prevail.

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After a hiatus of some months, during which we had been working through the Government Task Force on the specific areas of Women and Children and Lands, we had the first meeting this year of the forum inclusive of Non-Governmental Organizations which has been trying to help with implementation of the Human Rights Action Plan.

We have throughout had helpful contributions from the Government Analyst’s Department, who had explained problems they faced. One was claims that they had not submitted reports when in fact they had done so, and another was that, after they had travelled to distant locations, they were told that the prosecution was not ready and had requested a postponement. We had therefore suggested at a meeting of the Task Force that the Secretary to the Ministry of Justice institute regular meetings, at which government agencies responsible for cases could coordinate work.

The Secretary had initiated such meetings, though not as often as I would have liked, and we were told this time round that they continued and had been helpful. Unfortunately she was not in a position to ensure a positive response from the Judiciary, and indeed she had been ignored when she had written to the Chief Justice suggesting a committee to look into sentencing policy and coordinate action in this regard in line with government policy of reducing the number of those remanded.

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Rajiva Wijesinha

October 2018
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