Criminal law of Sri Lanka ensures peace and harmony

The High Court Judge of Jaffna W. T. Vicknaraja urged the Mediation Board members in the Jaffna district to balance the social interest and the interest of the person who was appearing before the Mediation Boards to seek justice. He also pointed out that the criminal law of this country has been structured to ensure peace and harmony in society.

The Jaffna High Court Judge was speaking at a seminar organised by the Jaffna Mediation Board at the Vaidheeswara Vidyalaya, Jaffna on August 16.

Several leading members from the legal fraternity and the civil society of Jaffna participated at the seminar, where the judicial issues and the functions of the Mediation Boards were taken up extensively.

Excerpts from the kaynote address of Jaffna High Court Judge. Vicknaraja:-

Judicial power

“One segment of the sovereignty of the people is the Judicial Power. That is why I have selected as the opening piece of my address judicial Power. We must remind ourselves part of the sovereignty of the people, which we exercise on behalf of the people.

What is meant by Judicial Power? There are practical definitions. I do not have to go into those. There are books and treatises which are written on them. But I would, this morning, refer to the Constitution itself which is what we have to uphold and defend. The classic definition of what is judicial power is contained in Article 105 of our Constitution. Article 105 begins with the chapter on Judiciary: “Subject to the provisions of the Constitution the institutions for the administration of justice which protects’ vindicates and enforces the rights of the people shall be (1) The Supreme Court (2) The Court of Appeal (3) The High Court (4) The Courts of First Instance (5) Tribunals and other institutions established by law.” First, it is the Supreme Court, second, the Court of Appeal, third the High Court, fourth Courts of First Instance and fifth, the Tribunals and institutions that enforce the rights of the people. You come within the Institutions segment.

What are these institutions under Article 105 which protect, vindicate and enforce the rights of the people, that is judicial power in its essence, the power to protect, vindicate and enforce the rights of the people. I would say when you say rights, it is correlative with duties and responsibilities of the people. That is judicial power in its essence. That is the sacred function that is bestowed on us by the Constitution itself.

Two sides

How should this process go on? We take these matters for granted. When you say protect, vindicate and enforce the rights of the people, there are always two sides because there is someone who is asserting a right and there is someone who is denying that position. That is how the dispute comes to you. That is, in practice, the formulation of a civil dispute. If you take the criminal matter, it takes another dimension altogether. What we have to bear in mind is what is enforced is the right of the society.

The criminal law of this country has been structured to ensure peace and harmony in society. So, in every one of these points you get the two sides and the great task and the important task of the judiciary is to balance the interest of these two contending forces. That is why justice is always depicted with the pair of scales.

You have to balance and the person who balances it is none other than yourself when you are exercising judicial power at all levels, be it at the level of the Magistrate’s Court or be it at the Supreme Court, probably, at times it may be that the job that you do may be more important to the society than the job that I am doing.

Because, you come directly into contact with the persons who are in this field, either social interest or the persons who are coming up before you. This is something that you must constantly remind yourselves about. You have to balance the social interest plus the interest of the person who is coming up before you for adjudication. Then you will get a proper balance of your role and function.

Mediation Boards

I would invite you to deeply examine the sections in Mediation Boards Act No. 72 of 1988 enabling you to understand the importance of effective functioning of the Mediation Board in the field of administration of Justice.

To support my position I wish to quote section 07 of the Mediation Board Act which clearly states that no proceeding in respect of any dispute falling under 7 (a) and 7 (b) and an offence specified in the second schedule to this act shall be instituted in or be entertained by any Court of first instance unless the person instituting such action produces the certificate of non-settlement issued by the Mediation Board.

As such if section 7 above mentioned is fully implemented large number of cases will be referred to Mediation Board and thus the Court of first instance would find more time to dispose the remaining cases quickly that comes before the Court for adjudication.

As such if section 7 above mentioned is fully implemented large number of cases will be referred to Mediation Boards and thus the Courts of first instance would find more time to dispose the remaining cases quickly that comes before the Court for adjudication.

Those who function as Mediation Board members should read and understand section 10 enabling them to be aware of their duties and responsibilities as such I would like to mention the relevant words as it in the section below:

Amicable settlement

“Where any dispute or offence is referred to any Board under subsection (3) of section 9 it shall be the duty of such Board by all lawful means to endeavour to bring the disputants to an amicable settlement and to remove, with their consent and wherever practicable, the real cause of grievance between them so as to prevent a recurrence of the dispute, or offence.”

According to section 11, where settlement is reached in respect of any dispute, a copy of the settlement is forwarded to Court enabling the Court to enter a decree in accordance with such settlement and according to section 18, where any offences specified in the second schedule to this act is settled by a Mediation Board deemed to have been compounded within the meaning of section 266 of the Code of Criminal Procedure Act No. 15 of 1979.

Therefore, it is very clear that legal sanction is embodied in these instances. As such it may be said that you are participating in the process of administration of Justice.

That is why I say if everybody concerned is determined to implement section 7 of this act then there will be progress in adjudication within the framework of Law.

I assure you, suitable environment will be created very soon to systematically implement the section 7 of this Act in all Courts in the peninsula by obtaining proper instructions from the Judicial Service Commission.”