|
|
|
 |
 |
 |
| Monday, 11 October 2004 |
 |
|
 |
News | |
| News Business Features Editorial Security Politics World Letters Sports Obituaries
|
The 'Access to Justice' project launched on September 24, under the auspices of the UNDP, the Ministry of Constitutional Affairs and the Bar Association of Sri Lanka aims at providing a range of services of an ambitious nature, going beyond the usual concept of Legal Aid. Lumped together under the rubric of 'Justice' is a wide array of subjects and participants, in fact, involving the entire gamut of governance, social justice, economic empowerment etc. The term 'Justice' is defined to include: treatises, constitution, laws and regulations, customary law, judiciary, police, prisons, Human Rights Commission, lawyers, civil society, and law students'. The term 'access' is defined as normative protection, effective remedies including implementation and enforcement, and empowerment to seek a remedy. - (Sunday Observer 26.9.2004). It is further stated that the project envisages changes in policy and practice and adoption of Human Rights based approach. The project further seeks to categorise participants on the basis of 'rights-holders' (disadvantaged and indigent groups having claims for redress) and 'duty-holders' (the hierarchy of executive officials, the judiciary and perhaps lawyers, who are charged with obligations to protect the rights of 'right or claim holders." Among the 'rights or claim holder' are categorised, the disadvantaged and indigent groups who are denied access to justice. The Chief Justice in his address, was quick to discern that such sharp categorisation, echoing Hoefeld's theory of jural correlatives, do not accord with Asian values and concepts. He further pointed out that in Sri Lanka and even other Asian countries, long accustomed to the concept of the welfare of the subjects, rights and duties go together. He referred to the provisions of the Constitution which enjoin all organs of govt. to respect, secure and advance Fundamental Rights, (Art. 4 (d) and emphasises that the enjoyment of rights and freedoms is inseparable from the performance of duties and obligations as described in Art. 28. A wide range of actors engaged in the enforcement of rights and remedies may stifle executive action in the detection and prevention of crimes such as drug dealing, underworld crimes. Such instances have ben reported in the newspapers. Access to justice is not a new concept in Sri Lanka. The right has been legally recognised and available to every citizen for thousands of years. A hierarchy of fora, beginning with the village tribunal, the local chief, the High Court (Maha Naduwa), and finally the King, as the final authority, provided opportunity for every citizen to have their complaints and grievances inquired into and resolved speedily, according to law and procedures which were known to the subjects. The legitimate heir to that tradition under the present Constitutional order is the Judiciary which exercises the judicial power of the people in terms of article 4 (c) of the Constitution. In the exercise of that power, the Supreme Court activates the Fundamental Rights jurisdiction even on a complaint by mere letter. It would appear as a significant omission that administrative officials who impinge on the rights of the people at every turn, are not brought into the categorisation of 'duty bearers'. Today, a citizen cannot approach even a minor official to seek redress for any grievance, or violation of right. The only response the citizen would receive, would be a rude rebuff by the security officer. It may also be asked, both from practical as well as juridical considerations, why the vast army of Justices of the Peace, spread throughout the island, are not assigned any role in the project. In Britain, Justices of the Peace dispense justice at the lowest level. From a practical point of view, J.Ps., being close to the people, are eminently suitable media, to activate the access to justice process. For instance, if a Police officer fails to entertain a complaint, the J.P. could, if appropriate powers are given, to intervene on behalf of the citizen, or bring the matter to the notice of a higher authority, and thus ensure that the citizen's right is protected. The inclusion of 'Civil Society' as 'duty bearers' without any definition of their specific role, also evokes scepticism as to whether this project is another 'Justice management' project, similar to those such as Water Management, Forest Management projects. 'Civil Society' means the entire community of citizens, who have evolved into a society governed by normative rules agreed upon among themselves. The so-called Civil Society groups are no more that pressure groups representing vested interests. Moreover, the proposal does not specify under what criteria 'Civil Society' groups are to be selected. On the other hand, one may also ask why legitimate bodies such as the Social Service Department, Divisional Secretaries, Grama Seva Niladharis should not play a role in the scheme, seeing that the project envisages empowerment of the people. Empowerment comprises two aspects knowledge empowerment, and economic empowerment. While the actors in the projects such as law students may have a role in knowledge empowerment, economic empowerment would be a project in which the entire government would be involved. Policy changes, as envisaged in the project, would also involve the entire governing apparatus and the people. From the amorphous plethora of aims and objects of the project, working out a practical, effective scheme which would address existing problems and the target groups, and yield results in the short term, would be an onerous task which devolves on the Chief Justice as the Chairman of the Steering Committee. We rest content that the task is in proper hands. It is hoped that the foregoing comments are understood as appreciative criticism and not condemnatory. E.P. Wickremasekera, Attorney-at-Law. |
|
News | Business | Features
| Editorial | Security
Produced by Lake House |
