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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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In addition to Consultative Committees for each Ministry, Parliament has another range of Committees, some intended to facilitate administration, others supposed to contribute to the core functions of Parliament. Amongst these last is the Committee on Public Petitions, related to the work of the Ombudsman, who is officially called the Parliamentary Commissioner for Administration. He is supposed, on behalf of Parliament, to look into administrative injustices, and ensure redress.

Unfortunately the Ombudsman has not been especially effective in Sri Lanka. Initially direct access to him was not permitted, and the public had to present petitions to Parliament, which could either deal with these themselves, or send them to the Ombudsman. Later it was decided that the public could access him direct. In both cases however the problem is that the Ombudsman has no statutory powers. He can only report to Parliament, which then has to take action. Since however action has to be taken with regard to Ministries, and since many Ministers – or their officials – are unwilling to have their actions reversed, remedial action is often not possible.

An imaginative Ombudsman could sometimes achieve a compromise, using the threat of invoking adverse procedures in Parliament to persuade officials to offer some sort of redress. But this requires close knowledge of the system, which most holders of the position have not possessed. Thus, while petitions continue to come in abundance to Parliament, these too do not often lead to petitioners being satisfied that justice has been done.

Read the rest of this entry »

Rajiva Wijesinha

September 2019
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