- We are going to amend certain sections of the OSB
- Dialogue with local community and not with international experts
- Mediation, a popular concept in law
Minister of Justice, Prison Affairs and Constitutional Reforms Dr. Wijeyadasa Rajapakshe, PC said that so many countries which have raised concerns about our Online Safety Bill (OSB) have statutes in all those countries to prevent the attempts by the social media to harm society.
Similarly, in Sri Lanka we are also bound to introduce such a law. The Minister in an interview with the Sunday Observer said that our civil society has pointed out certain laws to be amended so that we will engage in a dialogue with our local community and not with the international experts.
We will have an interaction with the local community and we are going to amend certain sections of the OSB. He said, “Are we just looking after the interest of a few people to make money even by taking ransom and threatening people to expose various false allegations or are we bound to protect the whole society at large? That is the issue.”
Excerpts of the interview
Q: The Opposition and various civic organisations have raised concerns on the passage of the Online Safety Bill. Would you like to comment?
A: Many countries are expressing their concerns about our Online Safety Bill (OSB). There are statutes in all those countries to prevent the attempts by the social media to harm the society. Similarly, in Sri Lanka we are also bound to introduce such a law.
There are over 5,000 complaints made regarding the abuse of the online system which included several suicides, taking of ransom and drug dealings. Those who are concerned about the law passed must say they will take the responsibility to control all such incidents and look after the grievances of the victims.
Actually, this is not an ad hoc arrangement. When I was the Minister of Justice this draft was formulated by the Law Commission in 2015 during the UNP Government. When the draft was ready there were many concerns and requests and then they said they would go for voluntary disciplinary court. We also agreed and didn’t proceed with the law.
Then there were discussions going on at that time and the Media Ministry got involved. There were a series of meetings in Sri Lanka as well as with service providers including 17 companies in Singapore. They all agreed that they will implement a voluntary code of law. But after six years since 2018, nothing has happened.
Q: Concerns have also been expressed that the Government had omitted 13 recommendations of the Supreme Court from the OSB. Is the Government working to amend the OSB to reflect these changes?
A: That is completely a false allegation. All the Supreme Court recommendations have been strictly followed when drafting the OSB.
Q: The Office of the United Nations High Commissioner for Human Rights (OHCHR) has said that the OSB will have “far-reaching negative implications for human rights” and called on the Government to amend the Bill to comply with its human rights obligations. Would you like to comment?
A: We need not follow their advice. There was no positive effect with the conduct of the UNHRC. That was always negative. Actually not because of them, our civil society has pointed out certain laws to be amended so that we will engage in a dialog with our local community and not with the international experts. We will have an interaction with the local community and we are going to amend certain sections of the law.
Q: Fears have also been expressed that the Government is trying to suppress the people through the OSB, Anti-Terrorism Bill and other such legislations. What is your comment on that?
A: How can we suppress the people and the Opposition through the OSB? When this wild ass freedom was there, the Opposition was not oppressed and they were very much active. In addition, if they say the Anti-Terrorism Act is draconian, then the existing PTA should be sanctimonious and we will have to continue with it.
Q: What are the steps being taken to address the law’s delays and court cases dragging on for many years?
A: This amount of reforms have never been done during history to address and minimise law delays. We have amended the Civil Procedure Code when it comes to civil litigation. We have introduced the pretrial to compromise at the first instance. We have submitted another bill with regard to the delay of service of summons where some people can even trace.
There are so many divorce cases accumulated and they can’t find the address of their spouse overseas. Serving summons physically is a big problem and it is time consuming and a lot of corruption is involved in it. Therefore, we have amended the bill and it will be tabled in Parliament very soon.
We can serve the summons through electronic modes. If the parties are not traceable, summons or the notice will be published in the newspaper on the day and if they wish they can come and otherwise it will go ex-parte.
There are lots of delays in divorce cases and some cases are contested over 20 years. We have drafted completely a new law and I have appointed an expert committee chaired by Kushan de Alwis, PC. We have drafted a new law where there is no pole-based divorce like in other countries.
Now we are following the Bible. Those who are put together by God cannot be repressed by any man. Even Rome, Italy and the UK have rejected those laws but still we are following them. We are going to completely abolish the divorce chapter and introduce a new law.
The enforcement of foreign judgments has a serious negative impact on commercial aspects or investors’ concern. There is a law applicable only for the Commonwealth countries. We have already drafted a universally applicable law and it will be tabled in Parliament within this month or next month.
There are so many small cases where time consuming is so long although the claims are small. At present we have established Small Claims Courts and all claims below two million are going before them and hundred percent are finally settled. A certain percentage of at least 10 to 15 percent of civil litigation will be shifted there.
The threshold in the Mediation Boards is 500,000. Now we have made it to one million. Of 100,000 cases they are getting annually, 70 percent are settled. I did that in 2015 as well. If I didn’t do that 1.5 million pending cases would have gone up to 2.5 million at the moment.
We improved that situation. Last January, we passed a new Commercial Mediation Law without going for lengthy litigation. The mediation is becoming very popular in the whole world in the legal aspects. The big investors don’t want to go through these late protracted proceedings in courts and they can get it settled through new mediation law.
I also had a pilot project of land mediation in the Northern and Eastern Provinces after the conclusion of the war in 2015 and it was quite successful from 60 to 70 percent. Now I have introduced it all together to 16 districts and it will commence in 9 other districts as well.
We have also started the digitalisation of courts. We are going to have 100 court houses at the first instance under the digitalised system. We have introduced posh machines for the payment of penalties’. Otherwise, the people have to wait hours and hours in queues in the court houses. The people with the help of the newly introduced machine can make their payment using the credit card and complete the transaction within a couple of minutes. We are trying to introduce that to the Traffic Police as well.
Overcrowding is a problem when it comes to the criminal cases. There is an inherent defect in our legal system which has not been addressed by anybody. For example, some people are remanded prior to the conviction for a long period.
When they are convicted and if they appeal sometimes, then again bail is not granted.
Therefore, I have got the Certificate of Conformity (COC) from the Attorney General and hereafter the judges are obliged to set off the period where that particular person had been detained as a remandee.
There is no big difference whether it is remand or a prisoner. Then that is to be set off as against the period to be continued in the main punishment and a lot of prisoners will get relief because their sentence has been exceeded unnecessarily.
We have introduced a pretrial conference to the criminal procedure to cut short all proceedings and decide what evidence admitted and what evidence to be led.
Then the judge has the crystal clear idea within how many hours he can conclude the case.
We have also drafted the plea-bargaining bill. Criminal cases will have to be practical. When there is a long delay in criminal cases, sometimes the witnesses may be the police officer or the medical doctor who examined them are missing, retired or dead.
Otherwise, they cannot be traced and it takes several years to find their addresses. Sometimes, they may be overseas. In a situation like that the whole system fails. Even if he is present in courts he might give completely different evidence contradicting what he said 5 or 10 years ago.
After spending so much money, the accused will go scot free without punishment. At the first instance, the parties and lawyers can get together and discuss with judges. If somebody is convicted for 15 to 20 years in the normal case but at the first instance if he agrees to admit what he did it or for a lesser charge, the judge has the discretion to impose half of it. This system is working in many countries. In the US 90 percent of criminal cases are finalised on that basis. We are not fully following the same system but we have adjusted what is suitable for our society.
Sometimes, when we have to get witnesses, we can’t get them. Sometimes, they are overseas or they can’t go overseas because he is the witness of the case.
Under the Victim Protection Act, witnesses can give virtual evidence via zoom technology from a distance or outside our jurisdiction. The witness has to be treated with an honour because he is coming to court to assist them. Therefore, we have decided to remove all witnesses’ boxes and we started it from the Commercial High Court.
We have decided to introduce a house arrest system for minor offences. If it is a minor offence, we will decide what the offences are. Then the court will get some assurance from his parents or guardians who can take the responsibility until the case is over to look after him. If necessary, they can also be placed under the supervision of our community correction officers.
There was also a lot of delay in the Government Analyst Department and all such delays will be sorted out within the next four to five months. When I became the Minister of Justice in 2015, the Government Analyst Department disposal rate was around 65 to 68 percent.
That means the balance 30 percent is added to the accumulated arrears and there were over 30,000 unattended. When I left the Ministry in 2017, I made it zero within two and half years.
Normally, they were getting about 1,200 to 1,500 samples at that time and each and every sample is issued in the same month. It is a hundred percent disposal.
During the recent past with the Covid-19 pandemic and other crisis situations, the prices have gone up and chemicals were not available and some countries stopped selling them. There are now an accumulated lot of about 13,000 to 14,000 and we will finish it within the next six months.
Q: The current ‘Yukthiya’ operation has nabbed thousands of drug addicts. Is there a program to rehabilitate them instead of sending them to prison or detention centres?
A: At the moment it is a complicated situation. The prison is there to impose the punishment given on the convicted prisoners and to take care of the remand people. In the recent past, I started the Ambepussa and Pallansena centres in 2015. There are about six or seven centres which come under the supervision of the Prisons Department and those are maintained as rehabilitation centres.
In addition to that, we passed the Rehabilitation Bureau law in January last year. Under that there are three centres and the main one is at Kandakadu. In terms of Drug Dependants Ordinance unless there is court order drug addicts cannot be sent to rehabilitation centres.
Now we have relaxed that law and we have drafted the amendment which will be presented to Parliament very soon by giving the opportunity for people to voluntarily go there and get it rehabilitated or on the recommendation of a doctor.
Under the Prisons Ordinance the Prisons Commissioner General has also been given the authority to transfer all of them to rehabilitation centres on the recommendation of a medical doctor. Instead of those three rehabilitation centres, we are going to expand them to five or six.
With that we are hoping to reduce the prison population. Normally, our prison population was 16,000 to 18,000. When we amended the law, it went up to 26,000 to 28,000. With the ‘Yukthiya’ operation it has come up to 33,000. Other manipulations were also there that a lot of drugs were being stolen and sold even in the court record room.
Hereafter under the new law, we have also drafted a new regulation that the Government Analyst Department just keep only the samples and the rest of the things will be disposed immediately under the supervision of a judge and the Attorney General.
Q: The controversy over the appointment procedure of President’s Counsel has again resurfaced after the recent appointment of 10 President’s Counsel. Is the Government drafting new guidelines for these appointments?
A: The guidelines are already there. Actually it happened a couple of years ago. In fact, there was a lot of criticism with regard to certain appointments.
The appointment of the President’s Counsel is completely a prerogative of the President and not the Minister of Justice.
But in the first turn when the President’s Counsel was appointed in 2015, I got involved and there was no allegation whatsoever and the most suitable persons were appointed.
Q: What action has been taken under the new anti-corruption law coming into force to recover the illegal funds deposited abroad through fraudulent acquisition of assets?
A: There are enough provisions even in the anti-corruption law which is in operation and we can act upon it. In addition to that special law will be drafted and I have appointed a special committee chaired by Supreme Court Judge Yasantha Kodagoda.
I am waiting for their final report and it will be submitted within the next few weeks. Then we will present it to Parliament as an Assets Recovery Bill.
Q: What is the progress with regard to the proposed electoral reforms?
A: I presented that Cabinet paper. According to that 160 electorates are to be demarcated and allow the people to directly elect their representatives under the First Past the Post System and the balance 65 either on the National List or Provincial List.
Then the Cabinet decided this has to be discussed with the Party Leaders under the chairmanship of the Prime Minister. We had a couple of discussions and some parties didn’t come. The SJB and JVP didn’t come but others had mixed reactions and the majority said these reforms should take place.
In the event the Opposition is reluctant or refuses to take part in the proceedings, the only option for us is to inform the Cabinet and ask whether we should proceed with my proposal. However, when it is presented to Parliament, all of them will have to take part in the proceedings whether they like it or not.
In electoral reforms, though the people are reluctant to talk, most of these political parties are based on ethnicity, religion or some fundamentalists. Except for a few parties in the mainstream such as SLPP, UNP, SJB and JVP which are based on some political policy base, there is no other political party based on democracy. When you come with the identity of some ethnicity, obviously you are dividing the society which means that there is no way for democracy.
Q: You have said that it is insufficient to merely enact new legislation and said the unwavering support and commitment of both politicians and officials are pivotal in effectively combatting corruption. Your comments?
A: Of course. That is why I got the Unity and Reconciliation Act passed in Parliament last month. Then in each and every village we are going to establish cohesion societies. We are going to educate the people to exercise their rights.
In addition to maintaining peace and harmony through reconciliation with the leadership of religious leaders and senior citizens in every village, we entrust them with the responsibility to educate people to get their basic ideas as to what kind of decisions they should take when it comes to politics. We are going to educate the people through these societies for cohesion. Of 14,000, we have already established 11,000 cohesion societies in villages.
Q: Who will you be supporting at the Presidential Election? Should President Ranil Wickremesinghe be given a second chance to carry on with the present economic program?
A: Nobody can take a decision until the nominations are given. At present hundreds of people are dreaming of becoming the next President.
Some people think they have already become the President. Most of these people even may not contest. Therefore, we should not rush through to take any decision in electing the best candidate to be the President.
As you know when we did our operation in 2014, we had exactly 42 days to bring Maithripala Sirisena from their camp to our camp and campaign to elect him as the President. Likewise, this time also somebody will come forward and something good will happen.
