Se ha denunciado esta presentación.
Utilizamos tu perfil de LinkedIn y tus datos de actividad para personalizar los anuncios y mostrarte publicidad más relevante. Puedes cambiar tus preferencias de publicidad en cualquier momento.

Improving the Legal System of Sri Lanka

1.091 visualizaciones

Publicado el

The law in Sri Lanka is based on the English Common Law. This article looks at how the legal system can be improved to reduce the rising crime wave and create a safe and sound society of the individuals to live in

Publicado en: Derecho
  • Sé el primero en comentar

Improving the Legal System of Sri Lanka

  1. 1. How Can the Legal System of Sri Lanka be Improved?
  2. 2. Introduction The best way to get bad law repealed is to enforce it strictly – Abraham Lincoln As per http://www.srilankalaw.lk/ our legal framework is defined the following way. “The legal framework of Sri Lanka is complex and a mixture of laws ranging from Rome, England, Holland, South India and Old Ceylon. The religious and colonial history of the nation, traced from 1505 to 1948, is the factor responsible for this rich legislative inheritance” How Can the Legal System of Sri Lanka be Improved? Abolish the 18th Amendment and Reintroduce the 17th Amendment The 17th amendment was introduced in October 2001. This amendment introduced limitations on the exercise of executive power. It also stipulated the establishment if the Constitutional Council (CC) that range of public institutions including the judiciary can be depoliticized. The council limited the powers of the President to make appointments to the higher judiciary and independent commissions. The independent commissions were set up to oversee areas such as public services, police, judicial services, election, human rights, bribery & corruption etc. the members for these commissions were to be selected by the 10 member Constitutional Council. The intention was to ensure good governance from political interference. The powers of the Constitutional Council (CC) are given below: 1) Article 41B allowed it to recommend names of members for appointments to the key commissions who were then appointed by the president. The commissions are as follows: - Election Commission - The Public Service Commission - The National Police Commission - The Human Rights Commission of Sri Lanka - The Permanent Commission to Investigate Allegation of Bribery and Corruption - Delimitation Commission 2) No person should be appointed to the above commissions without the recommendation of the CC Although the 17th Amendment was expected have lifelong validity, when the terms of office of the members in CC expired, the council died a natural death in 2005. Politicians had their own agendas and made no effort to agree upon who should be appointed to the council outside of parliament. The dilemma of which group in parliament was entitled to nominate the 10th member would have been referred to the Supreme Court. However, political leaders used it as an excuse to eliminate the CC.
  3. 3. Non implementing the 17th Amendment resulted in the following: 1) It invalidating the National Police Commission by bringing the police department under the Ministry of Law and Order which was previously under the control of Secretary of Defense 2) Made the Human Rights Commission ineffective. Implications of the 18th Amendment 1) The 18th Amendment effectively annulled the 17th amendment and was passed by a referendum in 1st September 2010. This removed the power of the constitutional council to nominate people for the following positions - Chief Justice and the judges of the Supreme Court - President and Judges of Court of Appeal - Members of the Judicial Commissions other than the Chairman - Attorney General - Auditor General - Inspector General of Police - Parliamentary Commissioner for Administration - Secretary General of Parliament 2) It removed the limitation on the power which was imposed on the president to make direct appointments to the judiciary and independent commissions. 3) Removing the two term restriction to the 1978 constitution 4) Vesting the president with powers to make appointments to the following commissions - Election Commission - The Public Service Commission - The National Police Commission - The Human Rights Commission of Sri Lanka - The Permanent Commission to Investigate Allegation of Bribery and Corruption - Delimitation Commission The 18th Amendment also expanded the powers of the president to appoint the following persons: - Chief Justice and the judges of the Supreme Court - President and Judges of Court of Appeal - Members of the Judicial Commissions other than the Chairman - Attorney General - Auditor General - Inspector General of Police - Parliamentary Commissioner for Administration - Secretary General of Parliament
  4. 4. Take Necessary Steps to Combat Law Delays According to the Ministry of Justice website (http://www.justiceministry.gov.lk/), as at 22nd November, 2010 there are 650,000 cases pending before our courts. The Ministry of Justice has stated that they were will set up 60 new Courts and temporary courts with retired judges will be set up for a period of two years to reduce and if possible eradicate the backlog of cases. There is sincere hope that this project is ongoing and will/was not abandoned. Time Taken to Sort Court Cases Nassir Shaikh, the brother of slain Khuram Shaikh who was killed in Tangalle in December 2011 had mentioned the following important point in an interview with a journalist of News 1st . (http://newsfirst.lk/english/2014/07/tangalle-rape-murder-update/45246) News 1st: For someone who has Britain as his home, how difficult has it been to comprehend the length of time it has taken to bring this matter to trial? As British born siblings we have always known that democratic states have a system allowing the most serious of cases to be completed in a timely manner. A perfect example is the case of the Salford overseas student who was shot and killed in Manchester on Boxing Day 2011. An individual was identified soon after and a full investigation and trial was completed in six months with murder charges brought against the accused. The case last year in India where the gang rape on the bus took place is another example – convictions were brought within six months. Whilst these are very encouraging examples, our wait has been of a prolonged period but I warmly welcome that a trial date had finally been set and thank those involved in making this happen. Although the murder occurred in December 2011, the trial was heard only in July 2014. The question remains why so? It’s the people’s belief that it is due to the defendants’ political affiliations. Out of four of the six defendants, including the chairman of the Tangalle Pradeshiya Sabha Sampath Vidanapathirana, were sentenced to 20 years of rigorous imprisonment for the murder of Khuram Shaikh. The fifth and sixth defendants meanwhile have been acquitted. Why did presiding judge hand down such a lenient sentence? Was he politically intimidated? There is a very high probability that this sentence was handed down to please the victim’s family as the defendants’ will use their political power to influence law makers for additional leniency. Priyani Soyza Vs Rienzie Arsekularatne is another landmark case which lasted for almost a decade where the plaintiff Rienzie Arsekularatne accused defendant Priyani Soyza for medical neglicance. The lawyers are notoriously famous for delaying cases. This should be minimized at all costs as it is a contributing factor for backlog of cases.
  5. 5. Remove the Urgent Bill Provision Since the government has two-third majorities in the parliament, they have the power to introduce and pass any law they please. The Supreme Court then reviews the proposed legislation only for three weeks from the date of reference. This denies the citizens ability to participate in the law making process. This protection is not applicable when passing an urgent bill and most legislation has been passed as urgent bills. The urgent bill provision must be removed for transparency and good governance. Establish the Right of the Judicial Review The constitution in Sri Lanka does not allow a law to be question after it has been enacted. Right of judicial review must be established where legislative or executive actions are subject to review/invalidation by the judiciary. Reintroduce the Presidential Term Limits The 18th Amendment removed the two term restriction on the presidency with six year tenure for each term. The US president can serve only two terms with 4 year tenure for each term. Term limits can restrain potential domination of a candidate. Not having presidential term limits in place can lead to a myriad of problems such as dictatorship, corruption, abuse power etc. Without a presidential term limit, there is a possibility that Sri Lanka will become another Egypt or Libya. The following presidents served for over 25 years in their respective countries until they were ousted from power. E.g: 1) Hosni Mubarak who served as President in Egypt from 14 October 1981 – 11 February 2011 2) Colnel Gaddafi served as President in Libya form 1 September 1969 – 23 August 2011 Having presidential term limits have the following advantages: 1) Serves as a limit on the concentration of executive power 2) Provides aspiring leaders a chance to run for office which allows party based democracy instead of personality based democracy 3) Removes the monopoly among an individual/group of individual. 4) Encourages the cultivation of successors. Remove Immunity of President The immunity of the head of state should be removed as this contradicts the commonly used statement “No man is above the law”. The constitution states that the president cannot be tried in courts while in office. The congress in the US has the right to question the President. This is a mechanism which should be introduced in Sri Lanka as well where the head of state should at least be questioned by the parliament.
  6. 6. References:  Nanayakkara, V.K (2012) In Search of a New Sri Lankan Constitution. A Stamford Lake Publication. P204-271  http://www.srilankalaw.lk/  http://www.neelakandan.lk/Compendium%20of%20Law/Legal_Systems_in_Sri%20Lan ka.php  http://www.justiceministry.gov.lk/  https://www.google.lk/?gws_rd=cr,ssl&ei=nf__U4i9Ns- 3uASTrIKoDA#q=legal%20system%20in%20sri%20lanka%20ppt

×