Meaningless, Redundant and Ridiculous Amendments

Ministry of Justice Law Reforms: Clarifying and updating law and finding solutions, or creating more problems and confusion?

By Kalyananda Tiranagama
Executive Director
Lawyers for Human Rights and Development

(continued from yesterday)

However, the same thing cannot be said of the other 3 Acts – Penal Code (Amendment) Act No. 5 of 2021, Evidence (Amendment) Act No. 6 of 2021 and Bail (Amendment) Act No. 7 of 2021. The passage of these 3 Amendment Acts by Parliament is a futile, meaningless, redundant, silly and ridiculous act done by our law-makers.

The Penal Code (Amendment) Act No. 5 of 2021 has amended the following Sections in the Penal Code in the following manner:

– Ss. 3, 18A, 120, 138, 158, 159, 165, 225 and 256A – by substitution for the word ‘Ceylon’ of the word ‘Sri Lanka’;

– Ss. 19, 115 and 120 – by substitution for the word ‘Queen’ of the word ‘Republic’; S. 13 repealed;

– S. 12 – by repeal and substitution of a new Section:

S. 12. The word ‘Republic’ denotes the ‘Democratic Socialist Republic of Sri Lanka.’

– S. 14 – by repeal and substitution of a new Section:

S. 14. The word ‘Government’ or expressions ‘the Sri Lankan Government’ or ‘the Government of Sri Lanka’ ‘shall mean the Government constituted by the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.’

– S. 15 – by repeal and substitution of a new Section:

S. 15. The words ‘this island’ and ‘Sri Lanka’ denote respectively, ‘the island of Sri Lanka.’

– S. 16 – by repeal and substitution of a new Section:

S. 16. The word ‘President’ shall mean the President of the Democratic Socialist Republic of Sri Lanka and shall include any person duly appointed or designated to exercise, perform and discharge the powers, duties and functions of his office.

– S. 18A – by substitution for all the words from ‘any enactment or any statute’ to the end of the section, of the words ‘any enactment of the legislature of Sri Lanka or under the Ceylon (Parliamentary Elections) Order in Council, 1946 or any rules or regulations made thereunder’.

– S. 19. – by substitution for all the words from ‘Firstly’ to ‘air forces of the Queen’ of the words:- ‘Firstly – Every person holding any office in Sri Lanka by virtue of any commission or warrant or other act of appointment granted or made by the President or under the President’s authority; Secondly – Every member of the Sri Lanka Administrative Service; Thirdly – Every commissioned officer in the naval, military or air forces of the Republic of Sri Lanka’.

– S. 53 – by substitution for the word ‘Governor-General’s of the word ‘President’s’.

– S. 56 – by substitution for the words ‘waging war against the Government’ of the words ‘waging war against the Republic’ in the Illustration to the section.

– S. 115 – by substitution for the words ‘to deprive the Queen of the sovereignty of Ceylon or of any part thereof, or of any of Her Majesty’s Realms and Territories’, of the words ‘to deprive the People of the Republic of Sri Lanka of their sovereignty or any part thereof.’

– S. 119 – by substitution for the words ‘Governor-General or a Senator or Member of Parliament’ of the words ‘President or a Member of Parliament.’

– S. 120 – by substitution for the words ‘the Queen or to Her Government in Ceylon’ of the words ‘President or to the Government of Sri Lanka’.

– S. 138 – by substitution for the words ‘Her Majesty’s Government in Ceylon or the Senate or the House of Representatives’ of the words ‘the Government

of the Republic or the Parliament’;

– S. 158 – by substitution for the words ‘Government of Ceylon’ of the words ‘the Government of the Republic’.

– S. 159 & 160 – by substitution for the words ‘the Senate or the House of Representatives or the Executive Government of Ceylon’ of the words ‘the Parliament or the Executive Government of the Republic.’

– S. 162 – by substitution for the word ‘the Government’ of the word ‘the Republic’;

– S. 191 and 192 – by substitution for the words ‘this code or the law of England’ of the words ‘this code or any other enactment for the time being in force’.

– S. 256A – by substitution for the words ‘Her Majesty’s Government in Ceylon and also the Government in any part of Her Majesty’s Realms and Territories or in any foreign country’ of the words ‘the Government of any foreign country’;

– S. 398 – by substitution for the words ‘Civil Service’ of the words ‘Sri Lanka Administrative Service’;

– S. 449 – by substitution for the word ‘Crown’ of the word ‘State’;

– S. 468 – by substitution for the words ‘in any part of Her Majesty’s Realms and Territories or in any foreign country’ of the words ‘in Sri Lanka or in any foreign country’;

– . 485 – by substitution for the words ‘of Her Majesty’ of the words ‘the Republic.’

The Evidence (Amendment) Act

The Evidence (Amendment) Act No. 6 of 2021 has amended the following Sections of the Evidence Ordinance:

(a) Sections 57 (para 4 & 7), 65, 74, 78 (para 1, 4 & 5), 90 B, 91 and 100 by substitution for the word ‘Ceylon’ of the word ‘Sri Lanka’;

(b) Sections 6 & 10 by substitution for the words ‘waging war against the Queen’ of the words waging war against the Republic’;

(c) Sections 57 para (8) by substitution for the words ‘Sovereign recognized by Her Majesty’ of the words ‘Sovereign recognized by the Republic of Sri Lanka’;

(d) Sections 57 para (10) by substitution for the words ‘Her Majesty’s Realms and Territories ’ of the words ‘the territorial limits of the Democratic Socialist Republic of Sri Lanka and of its divisions’;

(e) Sections 57 para (12), 111, 126,127, 128, 149 and 150 amended by substitution – for the word ‘advocate, proctor’ of the word ‘attorney-at-law’ wherever those words appear in those sections.

The Penal Code (Amendment) Bill, Evidence (Amendment) Bill and Bail (Amendment) Bill were taken up for debate and passed by Parliament without any amendments on January 06, 2021. As shown by Parliamentary Proceedings of the day, Minister of Justice Ali Sabry, Government MPs Madhura Vithanage, Jayantha Weerasinghe, Mohan P. de Silva, Anura Priyadarshana Yapa, Susil Premajayantha, Udayana Kirindigoda, Dilan Perera, Sagara Kariyawasam and Lohan Ratwatte and the Opposition MPs Lakshman Kiriella, Eran Wickramaratne, A.L.M. Athaulla, Harin Fernando, Ranjan Ramanayake and Harini Amarasuriya have participated in the debate. The vast majority of the MPs who participated in the debate are lawyers. Yet none of them have seen the absurdity of presenting these Bills in Parliament and enacting them. As usual, in the debate they have spoken of various things other than the contents of the Bills.

Intellectual Fraud perpetrated on the People

There was absolutely no need to bring in this Penal Code (Amendment) Bill and Evidence (Amendment) Bill as all the above-mentioned amendments have been made 42 years back in 1980 and incorporated into the 20 Volume Legislative Enactments edited by a group of legal luminaries headed by Justice Hector Deheragoda, Supreme Court Judge, and published by the Government of Sri Lanka in 1980. Over the past 42 years all these amendments remained part of the law of the country. In the guise of updating outdated, antiquated laws, the Ministry has reproduced in these two Bills what was already there as a great achievement made by it. This is an intellectual fraud perpetrated not only on our gullible people who are prepared to swallow anything given by our cunning politicians, but also on the MPs who are not used to study, analyse and examine Bills presented in Parliament.

Each of these Bills run into seven pages and printed and published 2 or 3 times causing unnecessary wastage of public funds: – first, some times as part of Cabinet Paper for Cabinet approval and then published in the Government Gazette for public information as is required under the law; secondly in the form of a Bill for presentation to Parliament and thirdly as an Act of Parliament. Who will take the responsibility for this totally unwanted wastage of public funds? It is also wastage of time and energy of the Parliamentary staff and of public funds for the sitting of Parliament. As reported in the media quoting Parliamentary sources, Parliament spends over four million rupees for a day of sitting.

While enclosing all the above-mentioned amendments in the 1980 Legislative Enactments in the two Bills, it appears that 3 amendments, which were not in the 1980 Legislative Enactments and which may have the effect of arousing public concerns, have been surreptitiously crept into the Bills, unnoticed by those who may be concerned. Two of these amendments in the Penal Code (Amendment) Bill and one amendment is in the Evidence (Amendment) Bill.

S. 17 of the Penal Code has been amended by the Penal Code (Amendment) Act by omitting illustration (b). Illustration (b) in S. 17: (b) A District Registrar or Additional District Registrar exercising jurisdiction under S. 33 of the Kandyan Marriage and Divorce Act is a judge. Under the Kandyan Marriage and Divorce Act a District Registrar has the power of a District Judge in respect of matrimonial matters of persons who have contracted their marriages under the Kandyan Law. This amendment has the effect of rendering this provision in the Kandyan Law practically ineffective without touching the Kandyan Marriage and Divorce Act, unnoticed by those concerned. Legally speaking, this illustration cannot be omitted without first amending the Kandyan Marriage and Divorce Act, as it is an illustration reflecting the existing state of the law.

Another amendment of this nature crept in is the amendment of S. 25 the Penal Code. This section has been amended by substituting the word ‘spouse’ for the word ‘wife’. S. 25: When property is in the possession of a person’s wife, clerk or servant, on account of that person, it is in that person’s possession within the meaning of this Code.

One cannot understand why this amendment was brought. There is no need or justification for this amendment, other than paving the way for gay marriages, giving effect to the thinking of Ranil Wickramasinghe government, in the guise of making provision for gender neutrality. It may also have a bearing on the right to the possession of property of a person married under the Kandyan Marriage and Divorce Act.

Another insensible amendment made is the amendment of S. 225 of the Penal Code. S. 225 of the Penal Code deals with the offence of use of counterfeit coins. The relevant phrase contained in the original Penal Code was: ‘issued by the authority of the Government of Ceylon or under the Currency Ordinance No. 21 of 1941 or any enactment in operation for the time being relating to the issue of coins in Ceylon or in any part of Her Majesty’s Realms and Territories.’

It has been amended in the 1980 Legislative Enactments as shown below: ‘issued by the authority of the Government of Ceylon or under the Currency Ordinance No. 21 of 1941 or under the Monetary Law Act, or under any enactment in operation for the time being relating to the issue of coins in Sri Lanka or by the authority of the Government of any foreign country in order to be so used.’)

The current amendment has omitted the phrase (shown above underlined) dealing with coins issued by foreign governments. It reads thus: ‘issued by the authority of the Government of Ceylon or under the Currency Ordinance No. 21 of 1941 or under the Monetary Law Act (Chapter 422) or under any enactment in operation for the time being relating to the issue of coins in Sri Lanka.’

Unlike our coins, coins of some foreign countries are of very high value. This amendment may open the doors for racketeers to use counterfeit foreign coins of high value without incurring any penalty. After this amendment a person found in possession of or dealing with counterfeit foreign coins cannot be prosecuted under the Penal Code.

Repeal of S. 82 of the Evidence Ordinance is another incomprehensible, irrational and short-sighted act done. This results in placing an unnecessary burden of proof on clients in some categories of civil cases who rely on documents executed in foreign countries in support of their claims. This will not only result in prolonging the cases, but also provide opportunities to unscrupulous lawyers to charge higher fees. One can clearly see this when one compares the S. 82 in the original Evidence Ordinance with the amended section of the Evidence Ordinance in the 1980 Legislative Enactments.

Original Evidence Ordinance S. 82 :- ‘When any document is produced before any court purporting to be a document, which by the law in force for the time being in England or Northern Ireland, would be admissible in proof of any particular in any Court of justice in England or Northern Ireland without proof of the seal, or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed, the court shall presume – (a) that such seal, or stamp or signature is genuine, and (b) that the person signing it held at the time he signed it, the judicial or official character which he claims, and that the document shall be admissible for the same purpose for which it would be admissible in England or Northern Ireland.

Amended section in 1980 Legislative Enactments

– S. 82 :– ‘When any document is produced before any court purporting to be a document, which by the law in force for the time being in any foreign country, would be admissible in proof of any particular in any Court of justice in that country without proof of the seal, or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed, the court shall presume – (a) that such seal, or stamp or signature is genuine, and (b) that the person signing it held at the time he signed it, the judicial or official character which he claims, and that the document shall be admissible for the same purpose for which it would be admissible in that foreign country.

Any person with common sense will understand that the 1980 amendment is a salutary step taken extending the application of the presumption which remained confined to documents legally executed in England or Northern Ireland to documents executed in any foreign country, thereby facilitating the judicial process in relation to the proof of all such documents. What is the need or reason for the repeal of this salutary provision beneficial in the speedy administration of civil jurisdiction?

(to be continued)