12 December, 2017

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Laws Must Protect, Not Prey On The Vulnerable

By Rajiva Wijesinha, MP –

Dr.Rajiva Wijesinha

One of the books on ‘the laws pertaining to women’ launched recently at the Ministry of Child Development and Women’s Affairs is a Commentary on the provisions of the Prevention of Domestic Violence Act, which came into law in 2005. It is written by Dhara Wijayatillake, our most senior Public Servant, who also has a sterling reputation for integrity – which is perhaps why she was removed as Ministry Secretary, several years ago, when she thought something she had been instructed to do was not quite ethical. But her worth was understood, and so she was kept actively in harness, by successive governments. She is thus able now to be the linchpin, as it were, of our efforts to expedite implementation of the National Human Rights Action Plan. Given her understanding of the field, as Secretary of the Ministry of Justice when that Ministry also had responsibility for Prisons , her knowledge and practical experience have been invaluable.

Along with a couple of others, who are not however quite as independent as she is, she represents the last of a breed of Public Servants who saw their role as serving the Public rather than any particular government. This perspective does demand loyalty to a duly elected government, ie Public Servants do not make policy and should uphold the policies of an elected government even if they are dubious about their efficacy – but they should actively contribute to policy making, and should point out both inconsistencies and also irregularities, which will detract from the responsibilities and capabilities of government.

I suspect however that such advice will not be common now, and perhaps one can hardly blame the new generation of Public Servants, who have been trained to believe that politics is more important than ethics or coherence. But the combination of intelligence and practicality that this Commentary encompasses is perhaps the best indication that, unless we swiftly develop a better system of training, with greater attention to identifying objectives and prioritising them rather than processes, the best laid plans of governments will get nowhere. Indeed perhaps there will be no such thing as plans, let alone well laid ones, as we replace governance with simply reactions to one crisis after another.

Practicality in the pursuit of identified goals is the keynote of the Commentary, and this needs to be stressed when, too often, laws are interpreted without sensitivity. The law was introduced to prevent violence against women, but there are still officials who, as the Ministry introduction to the book indicates, consider domestic violence ‘as a private matter that needs to be resolved within the family’. Such an approach obviously leads only to further suffering for women, from what we are gradually beginning to realize is the most prevalent social problem all over the world. It is for this reason that I have been advocating community based solutions as well, to prevent rather than cure, with local protection committees that will identify potential problems and deal with them through counselling and support mechanisms rather than necessarily resorting to the law.

One problem about resorting to the law is the formulaic approach of some of our magistrates. I am aware of instances in which interim orders are given, because these are an easy option when examination of the merits of the case seems complicated, and then those orders last for longer than a permanent order can. The reason for a time limit on permanent orders is so that the problem can be resolved, rather than a preventive mechanism put in place on a permanent basis. Therefore to have interim orders that go on and on clearly defeats the purpose of the law, which is to overcome threats, not keep them looming over women – or indeed over men, for the law is not gender specific – when they are serious. Unfortunately, with clever lawyers having recourse to the Act when there is no serious threat but simply a desire to build up a case for other reasons, magistrates give in to convenience and simply issue orders which they then forget about, with no concern for the actual objective of the Act.

This Commentary then is a necessity to sensitise law enforcement officials, police and magistrates and also social workers, about the problems women face, and to promote sympathetic action. I hope it will be the basis now of workshops on the subject, in which the different executive bodies that have responsibility coordinate preventive and remedial action. I hope too that better understanding of the problem will lead to training also of counsellors who will be proactive through community initiatives, since this is a field in which greater understanding of and attention to root causes of unsocial behaviour can help with reducing problems.

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Latest comments

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    So refreshing to find after a long self enforced hiatus in the hills of Nuwara Eliya, all spruced up and beaming after a makeover by the tourist obsessed MR government, to find this beautiful bit of nothingness by a prime spin master of this government.

    Quite funny meanwhile to see Rajiva congratulating Dhara!Quite a family affair, what?!And does it all indeed, run in the family?

    Certainly the praises heaped on Dhara in terms of ‘integrity’ (we will reserve our comments on that) cannot be applied to her near and dear relative Rajiva, whose lack therein is most conspicuous in the MR government.

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    Hey Rajiva you must be a Dr j and Mr Hyde personality. First licking Rajapakse’s corrupt ass and then holding forth on the virtues of transparency and independence in the public sector!

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    He being an MP,should tell the Minister of Justice about the “interim and permanent” orders by magistrates – which is far better than writing in this public domain.
    Magistrates remand all brought before them by police, without private inquiry with the ‘suspect’ to ascertain the basic facts of the case.
    Women exposed to domestic violence FEAR to go to any police station.
    He should discuss this too, with the minister and the IGP.
    All should be encouraged to go to police stations with attorneys.
    This too should be discussed.
    All of us wish to know details of the National Human Rights Action Plan.
    Why is being kept a secret?

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    I never knew before that our learned writer has been advocating solutions to problems faced by women suffering from domestic violence by dealing with them through local protection committees, whatever that may mean.

    Rajiva has nothing to say about the impunity with which some of his colleagues seem to violate the law without suffering even disciplinary action. Rajiva has no problem at all in keeping political company with such people.

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    I read, on one of Professor Rajiva Wijesinha’s recent blogs, that there are (officially) 130,000 prisoners in Sri Lanka, out of which only 30,000 are doing time after being found guilty in a court of law. He indicated that he regarded this figure as unacceptable, and it is. What are all these people locked up for, and how many of them are Tamil-speaking? I noted that Australia, where I live, has about 33,000 prisoners (though many are also confined in nursing homes and mental hospitals). It seems like too many people are already imprisoned in Sri Lanka – the majority without having the legitimacy of their imprisonment tested in court.

    The sentiments expressed in this article are reasonable (if somewhat self-serving) and I agree that it is important to recognise domestic violence against women and children as serious crimes. Education of parents that they can bring up their children well without hitting them and being cruel to them in other ways should be a focus of government. Unfortunately much hitting of children is done by mothers, rather than fathers, these days. Praise is more powerful than punishment, when raising children…I hope Professor Wijesinha’s campaign for human rights adequately addresses the needs of children (despite the fact that they don’t yet vote).

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    Rajiva is now after brownie points from a sector, as he has little
    more time as an MP and the attached Benefits etc.?

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    “Laws must protect not…” What a hoot! Are you now becoming a comedian after being immersed in tragedy for so long? Why not tell this to the guardians of law and order, starting at the top (being some sort of ‘advisor’ to the powers that be), or is this an attempt to play both sides (just in case…)?

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    Blue Eye Prof. Rajiva Wijesinghe,

    if the Law functions properly in Sri Lanka, you should ended-up in jail for insulting the Tamil children/Tamil community.

    Where is your Blye Eye photograph? Until you produce that photographs of Blue Eye Tamil children, you will remain as an UTTER LIAR.

    Now those children must be at least 3 or more than 3 years.

    Please do produce those photographs.

    Is it true, you will be the next Secretary of Defence? Good luck, you are really suitable for that job.

    I like to see you in Military uniform.

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