Judges should act without fear or favour - Justice D. Jayawickrema

Sarath Malalasekera

COLOMBO: Fundamental rights had a remarkable history which recognises human rights but the Sinhalese legal system has a history prior to the capture and rule of the maritime provinces by Portuguese, Dutch and the British who later expanded it to the entire country, said Commissioner of the Human Rights Commission Sri Lanka Justice D. Jayawickrema.

"In the course of 23 centuries, the upcountry Sinhalese, survived under the Kandyan Law," he added.

Quoting The Legal Heritage of Sri Lanka, authoured by former Supreme Court Judge, Justice A. R. B. Amarasinghe, Justice Jayawickrema said, "traditionally, a judge of Sri Lanka was required to act independently without fear, favour, affection, ill-will or impartially. He had to hold a fair trial, showing patience and attentiveness to ascertain the truth.

In exercising his discretion with regard to the punishment of offenders, he had to impose a sentence that was within the limits permitted by law and in accordance with the prescribed or customary sentencing policy applicable to the circumstances of the case." Dutch emigrants were responsible for planting Roman Dutch law in South Africa.

English Law was taken to Canada, Australia, New Zealand and United States by British settlers. We still have English and Roman Dutch law here and these are so deep rooted that no one dares to abolish them, he added.

It seems that these innovations supplemented and rarely supplanted the customary laws of our country.

Even king Sri Wickrama Rajasinghe had told Dr. Marshall the surgeon to the First and Second Ceylon Regiments whilst the king was in capacity, that he followed Hindu or Brahmanical Law books in giving punishment.

Knox gives a heart-breaking description of punishment. Knox says there were beheadings and hangings.

The advent of modern ideas and philosophies was against infringement of human rights. Advocating the safeguarding of such rights in our own country by super powers has created a dilemma.

The Monarchial System of Government is coming to an end. Democratic ideals based on the representative rule paved the way for better treatment, not only of human beings but even for fauna and flora too.

Numerous laws have been enacted to bring about a just society.