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Laws must protect, not prey on the vulnerable

15 June 2012 06:30 pm - 0     - {{hitsCtrl.values.hits}}

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By Prof. Rajiva Wijesingha
One of the books on ‘the laws pertaining to women’ launched recently at the Ministry of Child Development and Women’s Affairs is a Commentary on the provisions of the Prevention of Domestic Violence Act, which came into law in 2005. It is written by Dhara Wijayatillake, our most senior Public Servant, who also has a sterling reputation for integrity – which is perhaps why she was removed as Ministry Secretary, several years ago, when she thought something she had been instructed to do was not quite ethical. But her worth was understood, and so she was kept actively in harness, by successive governments. She is thus able now to be the linchpin, as it were, of our efforts to expedite implementation of the National Human Rights Action Plan. Given her understanding of the field, as Secretary of the Ministry of Justice when that Ministry also had responsibility for Prisons , her knowledge and practical experience have been invaluable.

Along with a couple of others, who are not however quite as independent as she is, she represents the last of a breed of Public Servants who saw their role as serving the Public rather than any particular government. This perspective does demand loyalty to a duly elected government, ie Public Servants do not make policy and should uphold the policies of an elected government even if they are dubious about their efficacy – but they should actively contribute to policy making, and should point out both inconsistencies and also irregularities, which will detract from the responsibilities and capabilities of government.

I suspect however that such advice will not be common now, and perhaps one can hardly blame the new generation of Public Servants, who have been trained to believe that politics is more important than ethics or coherence. But the combination of intelligence and practicality that this Commentary encompasses is perhaps the best indication that, unless we swiftly develop a better system of training, with greater attention to identifying objectives and prioritising them rather than processes, the best laid plans of governments will get nowhere. Indeed perhaps there will be no such thing as plans, let alone well laid ones, as we replace governance with simply reactions to one crisis after another.

Practicality in the pursuit of identified goals is the keynote of the Commentary, and this needs to be stressed when, too often, laws are interpreted without sensitivity. The law was introduced to prevent violence against women, but there are still officials who, as the Ministry introduction to the book indicates, consider domestic violence ‘as a private matter that needs to be resolved within the family’. Such an approach obviously leads only to further suffering for women, from what we are gradually beginning to realize is the most prevalent social problem all over the world. It is for this reason that I have been advocating community based solutions as well, to prevent rather than cure, with local protection committees that will identify potential problems and deal with them through counselling and support mechanisms rather than necessarily resorting to the law.

One problem about resorting to the law is the formulaic approach of some of our magistrates. I am aware of instances in which interim orders are given, because these are an easy option when examination of the merits of the case seems complicated, and then those orders last for longer than a permanent order can. The reason for a time limit on permanent orders is so that the problem can be resolved, rather than a preventive mechanism put in place on a permanent basis. Therefore to have interim orders that go on and on clearly defeats the purpose of the law, which is to overcome threats, not keep them looming over women – or indeed over men, for the law is not gender specific – when they are serious. Unfortunately, with clever lawyers having recourse to the Act when there is no serious threat but simply a desire to build up a case for other reasons, magistrates give in to convenience and simply issue orders which they then forget about, with no concern for the actual objective of the Act.

 This Commentary then is a necessity to sensitise law enforcement officials, police and magistrates and also social workers, about the problems women face, and to promote sympathetic action. I hope it will be the basis now of workshops on the subject, in which the different executive bodies that have responsibility coordinate preventive and remedial action. I hope too that better understanding of the problem will lead to training also of counsellors who will be proactive through community initiatives, since this is a field in which greater understanding of and attention to root causes of unsocial behaviour can help with reducing problems.



The second book that was launched was by Dr Charika Munasinghe, who also has a distinguished pedigree of committed social service. The Sarvodaya Movement, in which she cut her teeth as it were with regard to support for the vulnerable, is the best example in this country of a Non-Governmental Organisation that is concerned primarily with people and efforts to empower them rather than entrench their dependency. It is in line with this approach that Dr Munasinghe has presented legislation and policies in a manner that makes them accessible to stakeholders rather than to an elite.  This book is a Directory that presents in simple form all laws and policies pertaining to women whereas, given the way laws are drafted now, it is often only lawyers who can understand them, not those they are supposed to benefit.

The book will also be useful to law enforcement officials, and as the Ministry makes clear to social service providers, who should be key figures in the protection of women. The Ministry also, I was happy to see, notes the role of health service providers, since this is an area in which much needs to be done to promote awareness, as well as to institutionalise practical preventive mechanisms. Unfortunately there is still too much diffidence and secrecy about matters in which information should be readily available, with public understanding of the support systems in place.

Both books will contribute significantly to fulfillment of the National Action Plan for Human Rights, which rightly stresses in several places the need for greater awareness for stakeholders of both rights and remedies. It notes the range of stakeholders, and I hope this will be registered by the Women and Children’s Desks which the police have established in many areas. As I have mentioned in my bi-weekly column on Human Rights issues, the commitment and capacity of many of those manning these desks is impressive, but it is necessary to make this universal, through more training programmes. These should also involve other stakeholders such as the Medical and Social workers mentioned in the Action Plan, and if possible Judicial Officers too.

For this purpose the two publications the Ministry brought out this week will prove invaluable tools. But it is also necessary, as the Action Plan makes clear, to raise general awareness of these issues. The Plan mentions the need to ‘engage the media to formulate a strategy to promote positive attitudes on the role and status of women as a means to combat violence against women’, and it would be good if the media gave appropriate publicity to these books, perhaps even publishing extracts from them, to fulfil its own responsibilities in the national effort to promote Human Rights.

I hope that arrangements for this will be made, and also that the books will soon be translated into Tamil. I am happy that the Ministry has issued the books without waiting for translations into all languages, because often the difficulty of having things translated leads to inaction. Getting these books out as quickly as possible was a good idea, so that work can begin with government officials, and in particular the police. But we must also make sure that all the vulnerable are aware of the legal position, and it is therefore imperative that the Tamil translations are produced swiftly. These books should reach the widest possible audience and become tools for improvement of society, as they are intended to be.  

(This is an amended version of the keynote Address by Prof Rajiva Wijesinha at the launch by the Ministry of Child Development and Women’s Affairs of two books on Laws pertaining to Women)


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