A Constitution is a testament of a nation

The enactment of a law specifically designed to protect victims and witnesses of crime had been a long-felt need in Sri Lanka. It has been universally deduced that adequate protection of such victims and witnesses will greatly enhance the country’s quality of criminal justice.

 

By Ayesha Zuhair

 

“We have always considered that the provision of aid and sustenance to victims of crime and the protection of witnesses as the twin pillars upon which the administration of criminal justice may be rested. The recognition of the rights of victims of crime and witnesses and adequate protection for them will enhance the quality of justice,” Dr. Marasinghe pointed out, emphatically asserting that it would further enhance access to justice, promote the standard of human rights and reduce laws delays.

 

When asked to give us a thumb nail description of the proposed law, Dr. Marasinghe explained, “A centre piece of the proposed legislation is the provision of a compensation fund with supportive provisions for medical and psychological treatment. There are tough penalties proposed for any further victimisation of the victims of crime and witnesses. The institutional supports for the operational aspects of the provisions of the proposed law have been carefully worked out. The idea is to make the workings of the system simple and systematic so that a person already traumatised by crime of which he has been a victim, shall not get further traumatised while seeking help from a system established under the proposed law. We propose to introduce a role that the Sri Lanka Police force could play in lending protection under the law, to a victimised person.”

 

Dr. Marasinghe explained that the Law Commission’s review of the legislation pertaining to Victim’s of Crime is almost complete and will be submitted within weeks to the Ministry of Justice. The “Protection of Victims of Crime and Protection of Witnesses” have taken into consideration the UN Declaration on the Rights of Victims of Crime and Witnesses.

 

Contempt of Court Law:

 

One of the major tasks which the Commission is presently engaged in is drafting a Law of Contempt of Court. The Commission is presently dealing with the defences and intends to complete that exercise very soon. Dr. Marasinghe stated, “The UK Act on this subject deals exclusively with newspaper publications and the Indian Act is relegated to the lower judiciary. The Indian Supreme Court acts under the Constitution while ignoring the provisions of the Act.

 

Recommendations still

 

pending to be legislated:

 

A number of completed drafts of Bills have been forwarded by the Law Commission to the Ministry of Justice and are awaiting enactment by Parliament. The list is as follows.

 

    * Animal Welfare Bill (Forwarded on May 2006)

    * Amendment to S. 365 A of the Penal Code (Forwarded on March 2005)

    * Amendment to S. 2 of the Grant of Citizenship to persons of Indian Origin Act No. 35 of 2003 (Forwarded on June 2005)

    * Amendments to the Motor Traffic Act ( Forwarded to the Transport Ministry on July 2005)

    * Access to Official Information Bill (Forwarded on April 2006)

    * Matrimonial Causes Bill ( Forwarded in January 2007)

 

Meanwhile the Commission is drafting afresh bills relating to equal opportunities, bio-ethics, DNA evidence, commercial transactions, sentencing and rights of children. These will be taken up soon after the Bills which are presently under consideration are completed.

 

Compiling customary

 

sources of law

 

When asked if there were any research projects in which he had any present interest or involvement, Dr. Marasinghe spoke about a project which he is working on together with a distinguished Sri Lankan law professor.

 

That was a personal endowment and has no connection with the Law Commission. That too was a Research Grant out of funds made available from The Asia Foundation and the British High Commission. “The research is conducted at a place of our own in Park Road, and has no connection with my work at the Law Commission or its facilities,” he explained.

 

The project was to conduct research on the vast sphere of un-codified customary laws which Dr. Marasinghe refers to as “Special Laws”. Under that project, Buddhist Ecclesiastical law, Kandyan law, the Tesawalamai and Muslim law will be the subjects of an in-depth study.

 

These laws are to be comprehensively compiled and restated in the light of available source materials. Five researchers are leading the research in each area under the supervision of Dr. Marasinghe and his other academic colleague.

 

The research work commenced in November 2006 and is expected to be completed by the end of the year.

 

Some constitutional

 

questions

 

As a specialist in Constitutional Law, Dr. Marasinghe’s views on constitutional matters of topical interest were also sought by the Daily Mirror. In this regard, he opined that the greatest drawback in the present constitution is its inherent lack of flexibility. The changes in the country’s socio-political structure cannot be reflected in the constitution due to its intransigent nature and a greater degree of elasticity needs to be incorporated if it is to cater to the needs of contemporary times, he stressed.

 

Dr. Marasinghe observed that, “As Oliver Wendel Holmes once said, “A Constitution is a testament of a Nation”. A nation is likened to a stream that flows. As it ebbs and flows the testament must also change and that means the constitution must be flexible. The 1978 constitution is devoid of that flexibility. It is rigid both from a transactional stand point found in the electoral process and from a functional stand point found in Articles 84(2) and 85 of the Constitution which carries the amending formulae.” The Daily Mirror also asked him as to what he thought about the legality of the important appointments made under the 17th Amendment.

 

His response went thus: “It is correct that the Constitutional Commission, which is in line with the French Conseil d’etat, had not been established. It can not be established unless that one missing person is found. It is not a body that could function without its full complement.”

 

The holding back of the one member, he said, has caused a paralysis of the executive functions of the State. In that kind of situation the organs of the state have been left frozen. These are organs which are indispensable such as the courts. There is in Constitutional Jurisprudence a principle called the “Doctrine of Necessity”. This, Dr. Marasinghe elucidated, is a principle has been followed by many courts in the world including the Privy Council. The principle is that “the wrong inflicted upon the constitution by departing from it must be less than the wrong thus avoided.” Later cases have replaced the word “wrong” with the word “evil”. Unless that doctrine is recognised and applied by the courts, the executive arms of governments could be held to ransom by political adventurism which could have an enormous negative impact upon the citizenry. “Therefore, it is important that the appointments made by the executive arm of a State be protected when ever the particular formula I have mentioned above deems applicable. In the present situation in Sri Lanka, the appointments could be validated under that doctrine,” he concluded. -Wijeya Newspapers

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