I was recently sent an article which suggested that in Sri Lanka sexual offenders went scot free. Coincidentally we had been discussing this matter at the last meeting of the Task Force of the Inter-Ministerial Committee on implementing the National Action Plan on Human Rights that I convene, given the seriousness of the matter. It had in fact also raised concerns when we were formulating and finalizing the Action Plan. The article, I was happy to note, had identified the problem accurately, and noted that the problem lay with the judiciary, which has – and again I must commend the writer of the article – given in to arguments used by ‘several criminal lawyers’.
The problem arose from what seems to me clear violation on the part of the judiciary of the express purpose of the legislature. I have long understood, and before I got into Parliament too, that talking of the express purpose of the legislature is not very sensible, given the absence of express purpose on the part of most legislators including myself on most issues. But that does not take away from the fact that the Courts should not, in the course of interpretation, pervert clear prescriptions in laws. The rot started – or perhaps this was when I first realized the significance of such interpretations – when the Constitutional Court decided to ignore the law that said a judgment had to be delivered within a specified period, and claimed that that provision was what they termed directory rather than mandatory, ie the Court followed it if it saw so fit, and ignored it otherwise. This is a clear nonsense, but it has got away with this view. Another example was when the decision of the Legislature to allow for divorce based on mutual consent was perverted by a judge who doubtless thought himself very moral, and reintroduced the concept of fault based divorce alone.
The current problem arises from the fact that the Courts made rape statutory when it involved intercourse with girls under 18, and also introduced a minimum sentence for rape of seven years. Unfortunately this meant that a man who had consensual sex with a girl of sixteen had, under the law, to be jailed for seven years, and a High Court judge in Anuradhapura decided that this was not fair – the couple had eloped and got married. The judge therefore gave the man a suspended sentence, with consent it seems from the Supreme Court.
That action seems to me to have been wrong. If the judge thought he could not give such a harsh sentence, he should have asked the Supreme Court to lay down guidelines which could have changed the law. The Court in turn should have made any exception it condoned subject to reform of the law. If Parliament failed to change the law then I’m afraid the judge, who must uphold the Law, has to rule in accordance with the Law, bearing in mind that there are many laws that are not fair but it is not up to individuals to decide which laws they will abide by in terms of their own perceptions of fairness.
That is one reason why we should have post-enactment judicial review, because obviously Parliament may pass laws that seem perfectly fair but which, in practice, seem unfair. Having said that, if Parliament decides to continue with the law (which it can do if the only problem is that the Law seems unfair, but obviously it must change the law if the ruling is that it is not constitutional), then judges must uphold the Law. Conversely, Parliament cannot allow the matter to slide out of lethargy or carelessness, but must give its attention to any queries raised by the Courts.
In the present instance, the Law Commission has in fact recommended a change, that will get over the particular unfairness of a mandatory sentence being imposed in the case of an offence characterized as statutory, which does not allow for consideration of intention or actual violation. I have no idea what form this recommendation takes, but that is part of the problem, that the deliberations of the Law Commission, which I believe have been quite forward looking in recent years, are then consigned to files with limited circulation, and never seen again. The blame here lies on the Ministry which has failed to act on the recommendation, even while obviously knowing, as the article puts it, that in 114 of 129 reported cases, perpetrators of statutory rape have received only ‘a suspended sentence which included a paltry compensation fine’.
This is outrageous. Remedial legislation should be brought in immediately, and I believe the Supreme Court should also review all these cases and ensure that reasonable punishment is given. For our part, we have asked the Law Commission to draw up schedules of all its recommendations, with a report on what their current status is. We believe the Ministry of Justice, to which the Law Commission reports, should ensure that anyone requested to comment on recommendations does so immediately, and that action is taken soon.
I believe that there are several sensible measures recommended by the Law Commission, which would help resolve many issues raised in the Human Rights Action Plan. Lethargy on the part of officials tasked with implementation should not be permitted, and we must develop a system of swift response. I believe this is vital in any administrative system, but it is even more urgent where Human Rights are concerned.
By: Prof Rajiva Wijesinha