(Current position - as at  December 16^th, 2005)

LEGISLATION PASSED BY PARLIAMENT IN 2005

·     Civil Procedure Code (Amendment) Act. No. 4 of 2005

·    Code of Criminal Procedure (Amendment) Act, No. 14 of 2005

·    Code of  Criminal Procedure (Special Provisions) Act, No. 15  of 2005

·    Tsunami (Special Provisions) Act, No. 16 of 2005

·    Prisons (Amendment) Act, No. 22 of 2005

·    Corporal Punishment (Repeal ) Act, No. 23 of 2005

·    Prevention of Domestic Violence Act, No. 34 of 2005

·    Commercial Mediation Centre of Sri Lanka (Amendment) Act (approved by Parliament  on 5^th October 2005 and awaiting certification)

In 1993 the Civil Procedure Code was amended to enable persons above 16 years of age to make a nomination in respect of several specified monetary interests so that upon the death of the nominator, these assets are transferred to the nominee without the need for recourse to courts by way of a testamentary action. Since then the Code has had to be amended on several occasions to extend its applicability to monetary interests that came to be recognized under various statutes enacted subsequent to 1993. Since the intention of the amendment it to avoid recourse to court as far as possible wherever the intention of the testator is clear, the Civil Procedure Code was amended to bring within its scope any new monetary interest each time such interest becomes statutorily recognized, so that the need for an amendment to cater to individual situations will not arise on each such occasion.

The Code of Criminal Procedure (Amendment) Act, No. 14 of 2005 and the Code of Criminal Procedure (Special Provisions) Act, No. 15 of 2005 were introduced to make the criminal justice process more efficient in the areas of investigation and trial, in order to meet the challenges of the rising incidents of crime and violence. It is also believed that these amendments will be conducive to the expeditious conclusion of criminal cases, a factor acknowledged as a deterrent to the commission of crime.

The main features of the Code of Criminal Procedure (Amendment) Act are as follows:

·     Amendment to section 123 to enable specimens of blood to be taken for forensic examinations - blood is the most economical and technologically convenient sample to be used for DNA profiling which is increasingly relied upon as an extremely valuable source of forensic evidence.

·       Amendment to section 126 regarding the defence of alibi.  

·       Amendment to section 154 to provide for a suspect to plead to a lesser offence, upon committal to the High Court -  If this opportunity is used by accused persons, many cases which would otherwise extend to a full trial may be avoided. 

·       Amendment to section 263 to provide for day to day trials to enable the expeditious disposal of cases. 

·       Amendment to section 17 to recognize the upper limit of compensation that  may be ordered to be paid by an offender to the person affected by the offence from Rs.500 to Rs.100,00.:

·      Providing for an enhanced period of detention in police custody for purposes of investigation, i.e. from 24 hours to 48 hours, in the case  of certain grave crimes, including murder, culpable homicide not amounting to murder, kidnapping, robbery with attempt to cause death and rape. Enhanced detention may be granted by a Magistrate, upon the satisfaction of certain requirements set out in the amending Act.

·      Empowering the Attorney General to forward direct indictment in cases where there are aggravating circumstances or circumstances that give rise to public disquiet in relation to the commission of any offence in respect of which a non-summary inquiry is required to be otherwise held.  In such cases, the Magistrate is required to forward the record to the Attorney General without holding a preliminary inquiry. This provision will expedite the conclusion of cases which fall within the aforesaid category.

Introducing a new procedure for the taking of statements of prosecution witnesses (depositions) at a preliminary inquiry (non-summary):

 In keeping with the National Policy of the State that it is necessary to ensure  and grant adequate protection to those adversely affected by the Tsunami that took place on 26^th December 2004, and the immediate need to introduce special legal provision for the protection and safeguarding of their rights, the Ministry initiated the formulation of a special law to address these concerns.  A special law was necessary since the existing laws were inadequate or did not have provision to deal with some of the concerns.  In particular, it became necessary:

·      to recognize legal provision to overcome certain impediments and disadvantages to which those affected by the tsunami could be subjected to;

·      to provide alternative care and protection to children and young persons left without adequate parental care; and

·    to remove legal obstacles and existing legal barriers in order to ensure the protection and safeguarding of those affected.

  The Act deals with the following situations:

Issue of death certificates in respect of persons missing consequent to the tsunami

The Births and Deaths Registration Ordinance does not contain provision to issue death certificates in the absence of a dead body.  Part 1 of the Act recognizes a special         procedure to enable surviving tsunami victims to obtain death certificates of their relatives who lost their lives in the tsunami, but whose bodies have not been recovered.

Protection for children and young persons who have lost one or both   parents in the tsunami

Many children and young persons lost either both parents or one parent due to the tsunami.  Part 11 of the Act contains provision to prevent children and young persons falling prey to those who may subject them to abuse and exploitation because of their vulnerability.   Mindful of the fact that these are young persons who have faced terrible trauma; it was considered that the hitherto available alternative care measures, such as immediate adoption or institutionalization had to be replaced with measures that took into account not only their physical well-being, but also their psychological needs. 

 The National Child Protection Authority is, subject to the upper guardianship of court recognized as the Guardian of every child placed under foster care in terms of the Act, and of every child who is left an orphan, whether or not such child is in the custody of any person, on the operative date of the Act, i.e. 13^th June, 2005.

Adoption of such children is permitted only after they have first been placed under foster care for one year.  This is in recognition of the need to give these children the special attention they would need, such as trauma counseling before they are permitted to be adopted under the normal adoption law.

 The Tsunami Act recognizes a three tiered regime as follows:

·      Registration as Current Custodians– All persons (other than a surviving parent) and institutions having custody of a child affected by the tsunami are required to register as current custodian of such child with the Commissioner of Probation and Child Care Services.

·       Foster Care – Any person, including a current custodian of a child may apply to a Magistrate’s Court, to become the foster parent of such child.  A young person may also seek foster care. The suitability of the applicant to become a foster parent will be assessed by an Evaluation Panel appointed by the NCPA. The paramount consideration in evaluating applicants will be the best interests of the child. The Act specifies strict criteria for the evaluation of suitability. The wishes of the child too are required to be given consideration.   The duties of foster parents are set out in the Act.  A foster care order granted by a court will be monitored by a designated officer, who is required to submit quarterly reports to court on the performance of the duties and obligations of the foster parents. Foster care orders will initially be in operation for a period of one year, subject to renewal. Adverse reports will lead to the revocation of the foster care order. 

·        Adoption Orders – After the expiry of nine months of foster care, any person including a foster parent may make an application for adoption of a child under foster care.    However, an adoption order can be made only after the expiry of one year of foster care.  Certain provisions of the Adoption Ordinance will apply these adoption applications.  If the child sought to be adopted is under 10 years of age, the consent of the NCPA is necessary.

Safeguarding prescription rights

Acknowledging the fact that persons affected by the tsunami will not     be able   to exercise certain rights and enjoy certainbenefits afforded under the existing laws and also become subjected to certain impediments and disadvantages as a result of their inability to comply with existing legal   requirements, Part 111 of the Act recognizes that one year from the date of the  tsunami will not be counted for purposes of prescription.

Preventing a breach of the peace - land disputes and possession rights

Part 1V of the Act makes special provision with regard to section 66 applications under the Primary Courts Procedure Act, No. 44 of 1979. It provides that where information is filed within one year of the tsunami, the judge is required to make order declaring that any person who was in possession of the land on the date of the tsunami, (or if he is dead or missing, any person or persons who were in possession of the land with him) is entitled to possess that land. However, where the person who was in possession on the day of  the tsunami, is one who had forcibly dispossessed another at any time within two months prior to the tsunami, the judge is required to direct that the person or persons who were dispossessed be restored back in possession.

Protecting tenancy and leasehold rights

In order to prevent landlords taking advantage of the tsunami situation to evict tenants and lessees, Part V of the Act affords certain safeguards to tenants and lessees of tsunami affected premises.  The Act recognizes the tenancy or leasehold of a tenant or lessee, as the case may be, who was, on 26^th December, 2004, in occupation of premises affected by the tsunami.

Stringent punishment for those defrauding tsunami aids

In recognition of the need for severe penalties for persons who commit certain offences under the Penal Code in respect of property which has been received as relief for tsunami victims, the Act, in Part V1 lays down that on conviction for those offences, the person found guilty should be liable to twice the punishment prescribed for those offences in the Penal Code.  These offences are criminal misappropriation, criminal breach of trust, theft, extortion, robbery, cheating and retention of stolen property.

Prisons (amendment) Act, No.  22 of 2005

In order to give effect to Sri Lanka’s obligations under certain ILO Conventions and to continue to receive certain trade concessions from the European Commission in return for sound labour norms several laws require to be amended. To conform to ILO Convention No. 29 on Forced Labour and ILO Convention No. 105 on Abolition of Forced Labour,   one of the laws that had to be amended was the Prisons Ordinance. The above Act amends the Prisons Ordinance to prohibit prison authorities from imposing sentences of forced labour as a punishment of prisoners who violate prison discipline; In that event, the other sentencing options recognized in the Prisons Ordinance can be made use.

Corporal Punishment (Repeal) Act, No. 23 of 2005

Article 11 of our Constitution guarantees as a fundamental right that no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Similarly, the International Covenant on Civil and Political Rights (ICCPR), to which Sri Lanka is a signatory, in Article 7 thereof, declares that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Corporal punishment is often perceived as a barbaric punishment not consistent with a legal regime that is committed to the promotion and protection of human rights.

Further, in considering Sri Lanka’s reports submitted to the United Nations Human   Rights Committee appointed under the ICCPR that Committee had consistently recommended that all   forms of corporal punishment be abolished.

It was in order to address these concerns that the Corporal Punishment (Repeal) Act, No. 23 of 2005 was enacted prohibiting corporal punishment as a penalty  that may be imposed by courts and as a punishment that may be imposed under the Prisons Ordinance for offences against prison discipline.

Prevention of Domestic Violence Act, No. 34 of 2005

Violence against women and particularly violence within the domestic environment has become a serious social issue. The above Act provides for the issue of Protection Orders by court. The objective of the Act is not to create new offences but to provide for the issue of Protection Orders by a Magistrate’s Court to prevent an aggressor from inflicting harm to persons within the home environment. The Act makes provision for the issue of Protection Orders against acts of physical violence which constitute offences already recognized in Chapter XVI of the Penal Code, of Extortion and Intimidation and of Emotional Abuse having the effect of causing severe traumatic emotional pain. Protection Orders can be sought against persons in specified degrees of relationships. A Protection Order may prohibit the aggressor from committing acts of domestic violence and entering the victim’s residence and may impose other prohibitions. In imposing prohibitions the court is required to take into account the accommodation needs of the victim and of the children and any hardship that may be caused to the aggressor thereby.

The Act provides a civil remedy.

The issue of a Protection Order will have no bearing on the normal criminal law jurisdiction. Thus where an offence has been committed, the normal criminal justice process of investigation, prosecution and punishment will follow.

Commercial Mediation Centre of Sri Lanka (Amendment) Act (Approved by Parliament on 5^th October 2005)

In implementing the Commercial Mediation Centre of Sri Lanka Act, No. 44 of 2000 which was introduced to establish a Commercial Mediation Centre to offer disputants the option of settling commercial dispute through mediation, certain inadequacies have been observed. The above Act is an effort to remedy these inadequacies.  The main features of  the amending Act  are to require that where in any agreement the parties thereto have agreed to refer a dispute arising thereunder to the Commercial  Mediation  Centre, such dispute should mandatorily be referred to mediation and a court action in such  instances can be instituted only where the attempt at mediation has failed; requirement that all disputes referred to the Centre shall be mediated according to the procedure set out in the rules of  the Centre; casting a  duty on all parties to the dispute and the mediators to maintain confidentiality in respect of  documents submitted and matters discussed during a mediation session; requirement that where a settlement has been reached subsequent to mediation,  for  such settlement to be recorded and signed by the parties and also for such settlement to be binding between the parties and enforceable as a contract; and for a nominee of the Minister of  Trade and Commerce  to be a member of  the Board of  Management of the Centre.