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Political principles - legal regulationThe courts and other bodies described above function in order to take decisions according to the law. To advise them about such decisions, or rather to present arguments on behalf of those seeking decisions, there are professional legal practitioners known as lawyers. Lawyers can represent citizens on both sides of a civil dispute. They can also represent citizens against the government in matters of criminal or constitutional law. They may also appear before arbitration bodies and other tribunals. In addition, lawyers assist in the preparation of legal documents, including contracts, property transfers and wills. In theory, such arrangements between parties do not require lawyers. But it is advisable to make use of their expertise to ensure that all legal formalities are observed. This should prevent future legal disputes, though as we know such precautions may not always be successful.

In Sri Lanka we also run the risk of lawyers not always performing their tasks with efficiency and / or honesty. We do not have effective systems of regulation with regard to legal practitioners. I have suggested to the new Minister of Justice that he consider some of the points made by Nagananda Kodituwakku, one of the best public interest lawyers we have. But sadly I have not yet had a response, and I fear that we will not, despite the commitment of the government to reform, deal with what is a major problem for citizens, namely the fact that they cannot always rely on lawyers.

Mr Kodituwakku notes that ‘at present there is no authority to regulate the legal profession in this country, leading to a lot of abuses and victimization of innocent litigants. In leading democracies like in the UK, there is a mechanism in place to protect the citizens from unscrupulous lawyers. It is noted that in the UK a large number of lawyers found guilty for various abuses by the Regulatory Authority are being either disenrolled, suspended or imposed (with) compensation orders. 

The Regulatory Authority for lawyers in the UK is empowered with wide powers, which include searching premises, seizing of records, sealing of offices and prosecuting all unscrupulous lawyers against whom prima facie cases are established.’

It would be useful then in Sri Lanka too to protect the citizen and to instill discipline in the profession by establishing through a law a similar body with wide ranging powers. Amongst the provisions that should be introduced to safeguard the public, he suggests the following – Read the rest of this entry »

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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 »

Presidency 19When I began this series, over four months ago, the title may have seemed excessive. And even my good friend Dayan Jayatilleka thought I was being unduly pessimistic about the President’s pulling power when I said that the UNP would poll at least 40% in Badulla. But the results there have shown that the threat is even more serious than I had thought.

Over the next few weeks I will explore how the threat might be averted. But I suspect that that will serve no purpose, for Basil Rajapaksa, who may be the only one of the decision makers who reads what I write, would by then have dragooned the President into having an early election. He did this in 2009 when, as the President then put it to me – with a hint of contempt I think for what he deemed the amateur nature of our advice – only Gota and I told him not to have the Presidential election so soon.

That haste, to entrench not the President, whose popularity was unrivalled at the time, but his rent seeking friends and relations in power, has been the root of the evils we have suffered. Contrariwise, Mahinda Rajapaksa, if left to himself, would I think have gone ahead with the reforms he had promised. And he can still save himself, and his legacy, if he works on reforms such as those so helpfully suggested by Vasantha Senanayake, which aim at strengthening the effectiveness of the Executive, not its power. But even now, understanding that having the Presidential election soon would be unwise, the rent seekers are trying to precipitate an early Parliamentary election. They ignore the fact that Parliament has a year and a half to go, and the President more than two years, ample time for the pluralist Mahinda Rajapaksa to recreate himself, free of the baggage he has been compelled to carry.

But can he do this? Does he have the will and the ability to assert himself again? Sadly, the way in which he has allowed little things to get out of control, through a combination of indulgence and lethargy, suggests that the will is weakening, even if his abilities are still in good order. I will illustrate this in my column this week by exploring the sort of embarrassment to which he allows himself to be subjected, when he forgets that the leader of a country should not let himself get involved in trivialities or in criminal activities. Read the rest of this entry »

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

At one of the discussions on the promotion of Human Rights that the Consortium of Humanitarian Agencies has been arranging together with the Reconciliation Office, it was decided to set up a more structured consultation, to look into conceptual questions as well as make practical recommendations. Given that clarity of conceptualization is largely lacking in the world of politics – or even recognition of the need for conceptualization – I was deeply impressed by the presentation at that discussion of the Consultant on Children to the Attorney General’s Department. What he presented seemed a good basis for further analysis so as to promote more helpful state interventions.

His argument, if I understood it correct, was that social policy in Sri Lanka continues to be based on the colonial legacy of Poor Law with emphasis on Criminal Law, on institutionalization of social rejects, and on very generalized administrative approaches without a positive social agenda. I am not sure that I agree with this completely, but he certainly presented a convincing contrast between our administrative framework for social services and that which we have in education and health. The latter promotes equity and inclusivity, whereas the former entrenches the dichotomizing view of society that Victorian England seemed to embody – but which was fought against and changed by advanced social thinkers and, perhaps most prominently, by Charles Dickens, who had suffered himself from the prevailing patronizing philosophy.

Coincidentally I happened, during the time our discussion took place, to have been reading one of his early works, entitled ‘The Mudfog Papers’, which satirized the practice of putting people in workhouses. In that Dickens produced a mock scientific paper on how to treat fleas, which was clearly meant to suggest that this was how the dominant sections of society regarded their less fortunate brethren – ‘He suggested that measures should be immediately taken to employ the labour of these fleas as part and parcel of the productive power of the country, which might easily be done by the establishment among them of infant schools and houses of industry, in which a system of virtuous education, based upon sound principles, should be observed, and moral precepts strictly inculcated. He proposed that every flea who presumed to exhibit, for hire, music, or dancing, or any species of theatrical entertainment, without a licence, should be considered a vagabond, and treated accordingly, in which respect he only placed him upon a level with the rest of mankind’.

The word vagabond of course recalled the Vagrants’ Ordinance which we still have on our statue books. Everyone agrees that it should be got rid of, or at least amended, but no one seems concerned enough to proceed with this. So we still continue to hear horror stories of how it is applied, most recently of a woman who went out shopping, and was taken in under the Ordinance.

Read the rest of this entry »

Rajiva Wijesinha

August 2018
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