Abuse of the Act to Prevent Domestic Violence

By Jeevan Thiagarajah

The Act to Prevent Domestic Violence (PVDA) covering physical and psychological abuse was legislated in 2005 and is seen as helpful tool to protect abused women, men and children. Children who suffer enormously due to domestic violence in the hands of overbearing or violent parents and men who often face abusive women at home have in large measure not benefited yet from the PVDA. 38 and 55 cases have been reported in 2010 and 2011 respectively of violence on Women.

This piece deals with non-conformity and abuse of the PVDA.

A commentary on the Act written by Dhara Wijetilleke was launched recently. Dhara explains,’’ an inquiry should not be conducted like a criminal trial. If the inquiry is prolonged, the objectives of the PVDA will be defeated’. Prof. Wijesinghe MP reviewing Dhara’s book makes this interesting observation,’ 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.’ The anomalies Prof. Wijesinghe has pointed show clients conniving with lawyers abusing the act. There are instances in which section 14 on changes to orders which is mandatory, are violated. Inquiries do not in most instances commence within 14 days as stipulated and postponements are sought readily. Every delayed case takes up time of Magistrates, Mudaliars, Police officers, stenographers. Cavalierly abusing  state resources in such a manner for private purposes are heinous acts.

There is compelling reason to address infringement of fundamental rights of citizens in such instances. Is an appeal to a Higher Court the only means of effective remedy? Just as much as Lawyers have Rules given by the Supreme Court, there needs  a continuous review of the quality of Justice dispensed in Courts including compliance with mandatory provisions of the law appropriately determined by the Chief Justice and the Judicial Services Commission.  

Any citizen has under Article 28 of the Constitution an obligation, responsibility and right to uphold the Constitution and Laws. To quote,’ 28. The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly it is the duty of every person in Sri Lanka - (a) to uphold and defend the Constitution and the law and (c) to work conscientiously in his chosen occupation.’ These provisions are hardly known and rarely invoked.Where lawyers fail to disclose glaring injury to the law or conceal lies of clients, citizens have a right, obligation and duty to step in to defend the Constitution and the law.

There was an announcement by the Ministry of Justice of a Court Master who would determine time required for arguments before cases proceed in lower Courts. This would make economical and optimum use of the Courts. The Bar Association would need to cooperate. It makes sense since in very many instances some of their members are called upon to utter shameless lies in Courts to delay proceedings. The PVDA for now is subject to unscrupulous use.