Transport of Minerals — Non-Mechanical Conveyance Transporting minerals by bullock cart or wheelbarrow or even on horseback, or by any other weight carrying beast may not attract confiscation so long as the conveyance is not a “mechanically propelled vehicle.” This gap undercuts the policy referred to in the SC judgment and weakens enforcement against illicit mineral movement. Equality concern: A person using a mechanically propelled vehicle faces confiscation, while another moving the same minerals by non-mechanical means (bullock cart, wheelbarrow, or manual carriage such as on weight bearing beast i.e elephant, donkey etc) does not—a distinction that may be arbitrary unless justified.
SUMMARY OF THE ARTICLE
Headnote (Key Holdings & Propositions)
Scope of Confiscation under Mines & Minerals (Amendment) Act No. 66 of 2009, Section 63B(1) authorizes forfeiture to the State of (i) any (i) mineral, (ii) machinery, (iii) equipment, (iv) material used in, or in connection with, the commission of an offence, and (v) the proceeds of sale of any such mineral or material deposited in court under s.63A. “Vehicle” is not expressly included.
Seizure Power (s.63A)- Police may seize minerals, machinery, equipment, or material suspected of involvement in an offence and produce them before a Magistrate; perishable items may be sold and proceeds deposited.
Comparative Statutory History * The repealed Salt Ordinance (No. 6 of 1890) expressly allowed confiscation of “vessels,” animals (horse/bullock/other beasts), and machinery used in transport/manufacture. The Mines & Minerals Law, No. 4 of 1973 and the Mines & Minerals Act, No. 33 of 1992 did not provide confiscation until 2009, and when introduced, omitted “vehicles/animals/vessels.”
Interpretation
Applying literal, golden, and mischief rules (Heydon’s Case), the article argues that the 2009 text deliberately excludes vehicles; to read “equipment/machinery” as including vehicles usurps legislative power and undermines legal certainty.
Cases Discussed
Hettiarachchige Anton Sujeewa Perera v. AG (SC Appeal 101/2012; SC Minutes 05.07.2023): Supreme Court upheld forfeiture of a lorry by treating “equipment” broadly. The article critiques this as over-extension/possibly per incuriam, contrasting other statutes (e.g., Forest Ordinance etc.) where vehicles are expressly named.
Constitutional Context
Directive Principles (Art. 27(14)) on environmental protection cannot justify judicial enlargement of penal/confiscatory provisions absent clear text; strict construction applies to provisions that infringe property rights (Maxwell; local authorities).
Practical Effect
Under a strict reading, confiscable movables are limited to minerals, machinery, equipment, materials, and sale proceeds of minerals/materials; vehicles and non-mechanically propelled conveyances/animals are not included unless and until Parliament amends the Act.
Policy/Remedial Path
If policy intends confiscation of vehicles used in illegal mining transport, Parliament should amend s.63B to expressly include “vehicles, vessels, craft, animals,” mirroring other legislation; alternatively, higher-bench reconsideration of Perera may be invited.
END OF SUMMARY
---------------------
What Categories of movables are Subject to Confiscation Under the Mines and Minerals Act No. 66 of 2009?
The aim of this article is to analyse the provisions of the Mines and Minerals Act, No. 33 of 1992, which state that any mineral, machinery, equipment, or material used in, or in connection with, the commission of an offence, or the proceeds of the sale of any such mineral, or material deposited in court shall be forfeited to the State.
The Mines and Minerals Law, No. 4 of 1973 was originally enacted by the National State Assembly on 24th February 1973, as a Law to provide for the vesting of absolute ownership of certain minerals in the Republic and to regulate the mining of, Prospecting for, collection, processing, sale, and export of minerals, to provide for the health, safety, and welfare of workers in mines, etc. Importantly, no provisions for the forfeiture of items used to in the commission of the offenses were included in this Law.
In spite of this, the Salt Ordinance, which had been in place since 1890, continued to be in effect, with all of its confiscatory clauses intact. The Salt Ordinance (chapter 211), the Radioactive Minerals Act (No. 46 of 1968), and the Mines and Minerals Law (No. 4, 1973) were all revoked by the Mines and Minerals Act (No. 33 of 1992), which established the Geological Survey and Mines Bureau and regulated exploration, mining, transportation, processing, trading, etc.
Mines and Minerals Act No. 33 of 1992 went into effect on July 28, 1992, until was revised by Act No. 66 of 2009, 17 years later. A comprehensive scrutiny of The Mines and Mineral Act No 33 of 1992 establishes that it was enacted under and by virtue of the authority vested in the National State Assembly by the 2nd Republican Constitution promulgated in 1977.
Interestingly, the Salt Ordinance No. 6 of 1890 had remained in the Statute Book for more than a century until the Mines and Mineral Act No. 33 of 1992 was enacted. The time-tested Statute that regulated the manufacture, collection, removal, and sale of salt and protected the revenue derived from it was repealed and replaced by the Mines and Mineral Act (Amendment) No 33 of 1992.
Prior to the declaration of independence in 1948, the Salt Ordinance No 6 of 1890 has been amended by Ordinance Nos, 4 of 1941 and 25 of 1943. Subsequently, it has been amended twice by Act No 22 of 1955 and Act No 31 of 1964. Salt Ordinance has been published in in chapter 343 of the unofficial Legislative Enactment of 1956.
It is imperative to emphasise the confiscatory provisions outlined in the Salt Ordinance, which grants explicit authority to seize and confiscate any horse, bullock, or other beast participating in transportation or conveyance of the prohibited products. Given the profound importance of this matter, reiterating the comprehensive meaning attached to the term 'vessel' is by no means a superfluous repetition. Vessel means every type of carriage and conveyance, whether by land or water.
What is particularly striking in this context is that the Salt Ordinance, which earned the distinction of serving the nation faithfully for over a century by sanctioning the seizure and confiscation of all types of vehicles, but which never used the terms "equipment" as used in the subsequent Law "Mines and Mineral Act" to fill the void left by the repeal of the Salt Ordinance. It is crucial to note that the term "machinery" encompassed all types of conveyance of goods in the Salt Ordinance.
Incidentally, the Legislative effort was to replace the former Law [SALT ORD.] with the latter Law [Mines and Minerals] in order to achieve the same or identical purpose. In simpler terms, this effort is to reflect upon the approach to interpret the concurrently introduced latter Law, while examining the provisions of the repealed Law.
When the Legislature, in its wisdom, decided to repeal the Salt Ordinance and replace it with the Mines and Minerals Act, it gives rise to various questions within the realm of statutory interpretation.
The literal rule of interpretation, the golden rule of interpretation, and, most importantly the mischief rule of interpretation must all be taken into account by the Court in performing this obligation.
The latter helps the Court in determining the Law Maker's intent. It is imperative to look at the previous legislation and the replacement that had been enacted afterwards to deal with a particular issue. The Court makes sure that the gaps in the law are suitably filled by applying the ‘mischief rule’ of interpretation.
This rule is contained in Heydon's case (1584) 3 Co Rep 7a, when it was reversed. Four factors must be evaluated for the accurate interpretation of legislation. They are listed below...
[Heydon's Case (1584) 3 Co. Rep. 7a; Maxwell on Interpretation of Statutes, 12th Edition, Chapters 40 and 96.]
The King's Bench decision in the case of Corkery v. Carpenter [1951] 1 KB 102 is also beneficial. Shane Corkery was handed a prison sentence for riding a bicycle in a public area while intoxicated. On a public road, he walked with his bicycle whilst visibly intoxicated. He was charged under Section 12 of the Licensing Act of 1872, which prohibits operating a carriage while intoxicated. Interestingly, bicycles were not specifically referenced in the 1872 Act. However, in order to resolve the case, the court resorted to apply the ‘mischief rule’. The primary purpose of the Act was to prevent individuals from using any form of transportation in the public while intoxicated. As a bicycle was indisputably a mode of transportation, the defendant's charge was rightly upheld.
The mischief rule permits the court to look beyond the literal meaning of the word and consider the issue that the statute was aimed to resolve. It is undeniably the most flexible rule of interpretation, but its scope is limited to determining the specific problem that the legislation in question sought to redress by analyzing prior laws.
Now, let us analyze the Salt Ordinance to determine its objectives and the approach it utilized to deter repeated violations of the law. As previously noted, the Salt Ordinance contained stringent provisions for the seizure and resulting confiscation of all types of vehicles and animals carrying loads, including vessels and all other types of conveyances on land and water. For purpose of reference let me reproduce some of the Sections from the Salt Ordinance to ascertain the intention of the Law Maker.
The preamble of the Salt Ordinance asserts that it is an ordinance to regulate the manufacture, collection, removal, and sale of salt and to protect the revenue derived therefrom.
Concerning the confiscation of articles and vehicles involved in the commission of an offence under the Salt Ordinance, Section 20 addresses the authority conferred on certain types of officers to seize articles employed in the commission of the offence. The text is as follows...
Arrest and seizure.
20. It shall be Lawful for any police officer or Village Headman [grama seva Niladhari] or for any officer of the Salt Department of a rank not below that of Sub- Inspector or any excise officer of a rank not below that of Inspector to arrest any person whom he finds committing or attempting to commit any offence under this Ordinance, and to seize any salt or other thing declared by this Ordinance to be liable to be confiscated, and to produce the same forthwith before the Magistrate's Court.
Section 19 of the Salt Ordinance needs to be reproduced for its significance in having spelt out the authority to confiscate automobiles used in the commission of an offence under the Salt Ordinance.
In terms of Section 19, the jurisdiction to inquire into offences under the Salt Ordinance is vested with the Magistrate. The Magistrate has jurisdiction to investigate violations of the Salt Ordinance under Section 19. He is also empowered to declare and adjudge any salt, vessel, machinery, or thing liable to confiscation under Section 18 forfeited and condemned, regardless of its value.
Section 18 of the Ordinance, which explicitly confers jurisdiction to confiscate certain articles, including automobiles and vehicles, used in the commission of an offence under the Salt Ordinance, reads as follows... .
18. And all salt in respect of which any offence shall be committed, and all vessels containing the same, or in which such salt shall be unlawfully collected, manufactured, possessed, removed, sold, or conveyed, together with any horse, bullock, or any other beast employed in the carriage or conveyance of such salt, and any machinery employed in the unLawful manufacture of salt, shall be confiscated.
Section 24 defines the term "vessel," which reads as follows...
“vessel" means anything employed to contain salt or for the carriage or conveyance of salt, whether by land or water”.
It is pertinent to examine the confiscatory provisions in a comparative manner as found in the repealed Salt Ordinance and the subsequently introduced Mines and Minerals Act.
|
SALT Ord. |
MINES &
MINERALS Act |
|
Existed from
1890 to 2009 |
Exist from
1992 onwards |
|
Provided for the seizure of all kinds of
vehicles vessels together with any horse, bullock, or any other beast
employed in the carriage or conveyance of such salt, and any machinery |
Did not provide for seizure or confiscation.
Mines Mineral Law 4 of 1973 did not
provide for confiscation.
Mines and minerals Act No 33 of 1992 did not provide for confiscation |
|
|
Mines
and Mineral Law No 66 of 2009 repealed the Confiscated provisions contained
in the salt ordinance to confiscate all kinds of vehicles vessels together with
any horse, bullock, or any other
beast |
FFrom the foregoing, it is clear that the Legislature wisely repealed a law that allowed for the confiscation of all types of vehicles and replaced it with a provision that empowers the court to confiscate only equipment, machinery, and unlawfully obtained articles. What does it imply? It clearly demonstrates the intention of the legislature by exempting vehicles from confiscation and curtailing the confiscatory clause to only equipment and machinery. In such a case, expanding the definition of equipment to include vehicles is undermining the literal interpretation, undermining the mischief rule of interpretation, and usurping legislative powers to unduly extend the application of the section.
Let me at this stage quote a passage from Gratiaen j.'s decision in
SUFFRAGAM RUBBER AND TEA CO., LTD., v. M. J. M. MUHSIN
(A. G. A., Ratnapura), reported in 55 NLR 44.
TThe court's duty, as well as that of a tribunal created by statute, is limited to interpreting the words used by the Legislature; they have no power to fill in any gaps that may be present. To do so would be to usurp the function of the Legislature "- Magor and St. Mellons Rural District Council v. Newport Corp.1[(1952) A. C. 189.]
Applying this principle, I am satisfied that the clear and unambiguous words by the Legislature which passed the Act do not extend an acquiring officer's jurisdiction under sec. 9 to cases where the Minister's special powers under sec. 36 proviso (a) have been exercised and have already resulted in a vesting of the property under sec. 37. In such cases the common law jurisdiction of the regular Courts of Justice to determine disputes between the private individual (whose property has been compulsorily acquired) has not been superseded either expressly or by necessary implication. To take any other view would be to " twist the words and phrases (of the Act) into a sense that they cannot fairly and reasonably bear"- Mohindar Singh v. The King 2[(1950) A. C. 345 at 356.]. It is wrong to think that the Courts' residual jurisdiction has survived the statute's impact due to Parliament's oversight. Indeed, even if that could be assumed, it is not for this Court to indulge in "guesswork" with what material the legislature would have filled it in with if it had discovered the (alleged) gap. If a gap is disclosed, the remedy lies in an amending Act "-per Lord Simonds in Magor's case (supra).
There is yet another matter we need to pay attention. Undoubtedly the Mines and Minerals Act no 66 of 2009 speaks of confiscation of different types of vehicles used in the transportation of goods, whether it is mechanically propelled or otherwise. Strict interpretation as to the enabling sections which give rise to confiscation is given that would be in Favor of the subjects. There is yet another matter to which we should pay attention. Undoubtedly, the Mines and Minerals Act No. 66 of 2009 speaks of the confiscation of various types of vehicles used in the transportation of goods, whether mechanically propelled or otherwise. An interpretation to the contrary might be in favour of the state, at least pecuniary, although the parliament may not like their language being twisted without giving the real intention. It is acknowledged that a primary court judge, the Chief Justice, or numerous judges of a court are not capable of legislating, and that allowing the judges the authority to produce legislation would be an assault to the people's sovereignty.
In this respect, the following passage from Maxwell's Interpretation of Statutes (9th Edition, 1946) pages 288-9 outlines a fundamental principle:
"The effect of the rule of strict construction might be summed up in the remark that, where an equivocal word or ambiguous sentence leaves reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the Legislature which has failed to explain itself. But it yields to the paramount rule that every statute is to be expounded according to its expressed or manifest intention and that all cases within the mischief aimed at are, if the language permits, to be held to fall within its remedial influence."
TThis type of additional punishment is intended to deter criminals by depriving them of the tools or proceeds from their unlawful activities. By seizing vehicles and other items used in the commission of a crime, authorities aim to disrupt criminal operations, remove incentives for illegal behaviour, and potentially prevent future criminal activity.
IIt is important to note that the laws and regulations governing the forfeiture of assets can vary significantly between different jurisdictions. Some legal systems require a direct link between the property and the crime, whereas others may have more extensive provisions allowing the seizure and confiscation of assets, even if they are not directly linked to a specific crime. Additionally, there are often legal safeguards and due process requirements in place to protect the rights of individuals whose property is subject to confiscation.
OOver the past two decades, there have been dramatic changes in Sri Lankan law governing the confiscation of personal and real property. The true owner has a right to be heard against a confiscation order under existing legislation whenever an offence is committed involving the use of a vehicle by someone other than the owner. IIIn almost all cases, a court will not issue a confiscation order if the owner can prove that the crime was committed without their knowledge or participation, that they took all necessary precautions to prevent the crime, and that they did not contribute to its commission.
In 1973, the Law which repealed the Salt Ordinance, was passed on February 24, 1973. The Mines and Mineral Law No. 4 of 1973 had no provisions for confiscation, despite the fact that any horse, bullock, or other beast used in the carriage or conveyance of such salt, as well as any machinery used in the unlawful manufacture of salt, and any vessel used in the carriage or conveyance of salt, whether by land or sea, was subject to seizure and forfeiture under Section 18 of the Salt Ordinance.
The preamble to this Law reads as follows:
“A Law to provide for the vesting of the absolute ownership of certain minerals in the republic, to regulate the mining of, prospecting for, collection, processing, sale, and export of minerals, to provide for the health, safety, and welfare of workers in mines, to enable the compulsory acquisition or requisition of immovable or movable property for any corporation established to develop the mineral industry, and to make provision for other matters connected with or incidental to the matters aforesaid.”
Conspicuously, this Law makes no provision for the confiscation or seizure of any machinery, equipment, or other tools. Consequently, the Mines and Minerals Law, No. 4 of 1973 was repealed and replaced by a new Act called the Mines and Mineral Act No. 33 of 1992.
The preamble to this new Act serves as the main source of information to assert the intention of the parliament in introducing the Mines And Mineral Act No. 33 of 1992.
A preamble to a statute is incapable of controlling the clear and unambiguous provisions in it.
AN ACT TO PROVIDE FOR THE ESTABLISHMENT OF THE GEOLOGICAL SURVEY AND MINES BUREAU TO REGULATE THE EXPLORATION FOR, MINING, TRANSPORTATION, PROCESSING, TRADING IN OR EXPORT OF, MINERALS FOR THE TRANSFER TO SUCH BUREAU OF THE FUNCTIONS OF THE DEPARTMENT OF GEOLOGICAL SURVEY FOR THE REPEAL OF THE SALT ORDINANCE (CHAPTER 211), THE RADIOACTIVE MINERALS ACT, NO. 46 OF 1968, AND THE MINES AND MINERALS LAW, NO. 4 OF 1973 AND TO PROVIDE FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO.
It is a well-known rule of construction that if the words of a statute are clear, a preamble to an Act cannot control clear and unambiguous provisions in its body.
The aforementioned rule of interpretation, that was succinctly stated by Viscount Simonds J., in The Attorney-General v. Prince Ernest Augustus of Hanover [1(1957) 2 W. L. R. At page 9], explains the proposition of Law in the following language:
" I would suggest that it is better stated by saying that the context of the preamble is not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it."
A remarkable approach in the exercise ofThe judgment of Prince Ernest Augustus of Hanover highlighted a remarkable approach in the sacred duty to interpret a Statute without recourse to the preamble.
It is essential to first read the entire Act and then examine any relevant context, both within and outside the Act, to understand the intended meaning of specific words. This includes considering the context within the Act itself, such as other sections, as well as the broader legal context, to determine whether there are any reasons to restrict or expand the interpretation of those words.
In re Wikes, Riddington v. Spencer and others [2 (1961) 2 W. L. R. 115 at 123], Buckley J. reiterated the same rule of construction as follows:
“It is well established that the language of a statute must primarily be construed according to its natural meaning. If the language is ambiguous, the long title of the Act may be looked at to help resolve the ambiguity; it may not be looked so as to modify the interpretation of plain language."
Intriguingly, this Act, Mines and Mineral Act No. 33 of 1992, did not provide for confiscation of any item used in the commission of any offence committed under the Act.
While the preamble states that it is to provide for various matters, including transportation, the absence of confiscatory provisions is understandable. This is attributable to the fact that the Act provides for regulations on the transportation of mines and minerals.
For instance, Section 33 provides for the issuance of licence to explore mines or transport, process, trade in, or export any prescribed mineral, including coral, beryllium, lithium, and thorium. Section 35 deals with the issuance of licence or the refusal of the same.
As clear from these Sections, the PreIt is clear from these Sections that the Preamble applies only to items permissible for transportation, since the Act has not included confiscatory provisions after 1992.naThe clear and unambiguous language indicates that only certain items, excluding vehicles, have been subject to forfeiture or confiscation since 2009.reamble has been intact, i.e., the preamble or title that was used to introduce Act No. 33 of 1992 is still in use. Remarkably, the relevant Section was Remarkably, the relevant section was amended in 2009 to allow for the seizure of minerals, tools, and machinery.pecifically mentioned by the Legislature in its wisdom, leading to the exclusion of "vehicle" from forfeiture or confiscation.
Thus, the Legislature has not considered confiscating equipment, machinery, or vessels used in offenses under this Act from 1973 to 2009. This is despite the Directive Principles in the Second Republican Constitution that had been in co-existence with these legislative provisions for nearly 21 years, from 1978 to 2009.
f any interpretation is to be given to Section 63 [B] (1) of the Mines and Minerals Act, so as to include the vehicles, stretching the interpretation for the word ‘equipment’, it could only be extended to mechanically propelled vehicles. In such an event, every type of non-mechanically propelled vehicles, and animals, used to carry loads are excluded. Therefore, in that instance too the legislation has to be taken as not giving full recognition to the Directive Principles under article 27 (14), namely, to give effect to the provision that the State shall protect, preserve, and improve the environment for the benefit of the community. Moreover, in the absence of the inclusion of the non- mechanically propelled vehicles and other animals used to carry loads is tantamount to a discriminatory approach towards mechanically propelled vehicles under the Mines and Mineral Act.
Evidently, from the reading of the above Section 63 [B] (1) of the Mines and Minerals Act, it is abundantly clear that the Legislature never intended to confiscate vehicles used in the commission of any violation under the said Act.
For purpose of ready reference, let me reproduce Enabling Section 63 [B] [1] of the Mines and Minerals Act. It reads thus:
FORFEITURE.
63B [newly inserted Provision of the Mines and minerals (amendment) Act No 66 of 2009]
Vide Section 31 of the amendment
63 B (1) Where any person is convicted of an offence under this Act, the Magistrate may make an order that any mineral, machinery, equipment or material used in, or in connection with, the commission of that offence or the proceeds of the sale of any such mineral, or material deposited in court under the proviso to Section 63A, be forfeited to the State.
The Mines and Minerals Act has been amended by Act No. 66 of 2009, and Section 66 [A] and [B] [C] and [D] has been added.
By the amending act, the preamble that originally stood from 1992 has not been amended in any manner. Therefore, it is seen that for 32 years after the 1977 Constitution, no legal provisions have been made to preserve the environment as contemplated under the directive principles to forfeit the vehicles. It was in the year 2009, the Legislature contemplated the forfeiture of machinery and equipment. By an amendment introduced in the year 2009 by Act No. 66 of 2009, the authority to seize and the power to confiscate any mineral, machinery, equipment, or material used in, or in connection with, the commission of an offence under the Act has been introduced.
What does it demonstrate? Unmistakably, the Legislature did not intend a mechanically propelled vehicle or a vehicle without the facility of being mechanically propelled, should be subject to a forfeiture.
Guided by the judgment of the Supreme Court, which clearly states that the directive principles of the constitution in terms of article 27 (14) to protect, preserve, and improve the environment for the benefit of the community warrant the conclusion that equipment and machinery used in the commission of the offense should include vehicles. Prior to this decision there has been no precedent found in Sri Lanka that the term "equipment" or "machinery" should include vehicles.
Another important matter that would arise for consideration here is that if the directive principles were the motivation behind the Legislature to provide for the confiscation of equipment used in the commission of the offence under the Act, in the light of the judgment of the Supreme Court only mechanically propelled vehicles could be confiscated. If the intention of Legislature is to give effect to the directive principle and preserve the environment by confiscating vehicles of any type even non mechanically propelled vehicles such as Bullock cart wheelbarrows and pack animals used carry loads such as oxen, reindeer, elephants, llamas, donkeys, horse, ponies etc. In many places in the world, the use of pack animals is the only feasible means of transporting a load.
If the intention of the parliament in enacting in 2009, Mines And Minerals (Amendment) AN ACT TO AMEND THE MINES AND MINERALS ACT, NO. 33 OF 1992, it is interesting to note that the parliament was well aware of the directive principles to preserve the environment if not from 1973, at least from 1977 to wit: from the date of the 2nd Republican Constitution to 2009, at least for 32 years.
Despite being aware of such directive principles contained in Article 27 of the Constitution, the parliament did not deem it necessary to confiscate vehicles involved in the commission of an offence under the Mines and Minerals Act.
It has to be understood that in the year 2009, When the parliament enacted Act No 66 of 2009, (32 Years after the 1977 Constitution) the parliament has realized its failure to give effect to the directive principles enshrined in the constitution and then enacted act No 66 of 2009 making provisions for confiscation of certain articles.
Remarkably , this is a new Section introduced into the Act and not an amendment of an existing Section.
This means that there was no confiscation sanctioned by parliament of any items or tools of whatever nature used in the commission of an offence under the Mines and Minerals Act. The relevant Provisions of the Act, inserted in 2009 for the first time, (32 Years after the promulgation of directive principles in the 1977 by the constitution) are as follows …
SALT ORDINANCE
The Salt Ordinance, as stated above, was introduce by Ordinance no 6 of 1890 and continued to be in the statute books of this country until 28th July, 1992. By Act No. 33 of 1992 the Mines and Minerals Act was introduced, and by Section 33, of Act No 66 of 2009 [ Mines and Mineral Act] under Section 68. Mines, Quarries and Minerals Ordinance (Chapter 210), the Salt Ordinance (Chapter 211), the Radio Active Minerals Act. No. 46 of 1968 and the Mines and Minerals Law, No. 4 of 1973, were repealed.
It is very interesting to note Section 18 of the Salt Ordinance . Under Section 18 The magistrates were fortified with absolutely clear confiscatory power to deal with offenses under the Salt Ordinance . In terms of the Salat Ordinance The salt in the restricted area in which an offense is committed is liable to be confiscated as was provided in the Mines and Minerals Act. In addition to confiscating the salt, it also provided for the forfeiture of any vessel, horse, bullock, or other beast used in transporting that salt, as well as any machinery involved. Under the definition clause in Section 24 of the salt Ordinance that was repealed by Mines and Minerals Act "vessel" means anything employed to contain salt or for the carriage or conveyance of salt, whether by land or water. Section 18 and 24 of the Salat Ordinance of 6 of 1890, as amended from time to time by Ordinance No’s 4 of 1941, 25 of 1943 and Act No’s 22 of 1955 and 31 of 1964 are reproduced below…
18. And all salt in respect of which any offence shall be committed, and all vessels containing the same, or in which such salt shall be unLawfully collected, manufactured, possessed, removed, sold, or conveyed, together with any horse, bullock, or any other beast employed in the carriage or conveyance of such salt, and any machinery employed in the unLawful manufacture of salt, shall be confiscated.
24. In this Ordinance, unless the context otherwise requires...
"...[inapplicable definitions are avoided here]
" vessel" means anything employed to contain salt or for the carriage or conveyance of salt, whether by land or water.
At this juncture, a perplexing mystery unfolds, raising the question of what prompted the legislature to repeal the Section relating to the confiscation of vessel, horse, bullock, or any other beast employed in the carriage or conveyance of such salt, and any machinery and introduce a Section numbered 63 B (1) empowering the Magistrate to make order that any mineral, machinery, equipment, or material used in, or in connection with, the commission of that offence be destroyed.
This demonstrates unequivocally that the Legislature repealed that section and limited its provisions to the confiscation of minerals, machinery, and equipment while being aware that there was a clause in the law authorizing the seizure of any vessel, horse, bullock, or other animal used in the transportation of any machinery.
What prevented the draughtsman and the Legislature from leaving out the vessel, horse, bullock, or any other animal used in the carriage, or any machinery in the commission of the offence would inevitably lead to the conclusion that the Legislature never intended to seize such modes of transportation of the load.
If the law is to be amended so as to include vehicles involved in the commission of any crime, the legislature must enact new legislation, as this would violate the property rights of the people. The appropriation of property is undoubtedly an additional punishment for committing an offence.
Why did the legislature, when repealing Sections 18 and 24 of the Salt Ordinance, fail to include provisions for the seizure of vehicles or animals in the new act? This glaring omission stirs up interest and necessitates a serious analysis into the underlying motives driving the actions of the legislature.
INSERTION OF NEW SECTIONS UNDER ACT NUMBER 66 OF 2009
63 A - "Powers of seizure.
(1) A police officer who has reasonable grounds to believe that an offence has been committed under this Act may, with or without a warrant, seize any mined mineral quantity of mineral that has been mined, or any machinery, equipment, or material used in or in connection with the commission of that offence.
(2) Where any mineral, machinery, equipment, or material is seized by a police officer in pursuance of the powers conferred on him by this Section, he shall forthwith produce such mineral, machinery, equipment or material before, or make it available for inspection by, a Magistrate, who shall make such order as he thinks fit relating to the detention or custody of such mineral, machinery, equipment, or material, pending the conclusion of a prosecution instituted in respect of such mineral, machinery, equipment, or material:
Provided, however, that where any mineral, machinery, equipment, or material so seized is subject to speedy decay, the Magistrate may order that such mineral, machinery, equipment, or material be sold and the proceeds of such sale be deposited in Court.
63 B Forfeiture.
(1) Where any person is convicted of an offence under this Act, the Magistrate may make an order that any mineral, machinery, equipment, or material used in, or in connection with, the commission of that offence or the proceeds of the sale of any such mineral or material deposited in court under the proviso to Section 63A, be forfeited to the State.
(2) Any mineral, machinery, equipment or material forfeited by an order under subSection (1), shall vest absolutely in the State upon the making of such order.
(3) Such vesting shall take effect-
(a) if no appeal is preferred after the expiration of the period within which an appeal against the order of forfeiture may be preferred to a High Court established by Article 154p of the Constitution or the Supreme Court ; or
(b) where an appeal has been preferred against the order of forfeiture to a High Court established by Article 154p of the Constitution or to the Supreme Court, upon the determination of such appeal, either confirming the order of forfeiture or setting aside the appeal.
(4) The Court shall cause any mineral, machinery, equipment or material that has been vested in the State under subSection (2) to be sold and the proceeds of such sale to be deposited in Court.
On careful reading of the latest Supreme Court judgment in this regard, Hettiarachchige Anton Sujeewa Perera V AG, SC Appeal 101/2012, Supreme Court Minutes 2023.07.05, it appears that:
1. Although the Directive Principles to preserve the environment have been enshrined in the constitution since 1977, Parliament has failed to give effect to these Principles by enacting confiscation provisions under the Mines and Minerals Act between 1977 and 2009.
2. Such provisions were only introduced to the applicable law in 2009, and that law too failed to state expressly that vehicles used in the commission are subject to confiscation.
3. Instead of enacting express provisions of law allowing the confiscation of vehicles, which invariably include mechanically propelled vehicles and vehicles without mechanical propulsion, such as bullock carts, rickshaws, wheelbarrows, bicycles, tricycles, and so on, the Parliament has enacted that the equipment and machinery used in the commission of the offence can be confiscated 32 years after the directive policies were implemented.
4. The term used by the Legislature to authorize the confiscation of equipment and machinery, in this context, undoubtedly encompass mechanically propelled vehicles of any type.
The judgement conveys the message that non-mechanically propelled items such as [non-mechanically propelled items] bullock cart, rickshaws, wheelbarrows, bicycles, tricycles, and so on are not subject to confiscation. This interpretation leads to the conclusion that the Legislature has not fully implemented the Directive Principles by excluding items such as bullock carts, rickshaws, wheelbarrows, bicycles, tricycles, and any animals used to transport prohibited items under the Mines and Minerals Act.
It can be plausibly argued, based on the principles of construction of statutes, that the Legislature, in its own wisdom, has carefully excluded all types of vehicles used in the transportation of items mentioned in the Mines and Minerals Act, except the minerals, equipment, and machinery used in the commission of the offence.
The Constitution, which stipulates in article 28 [14] that the State shall protect, preserve, and improve the environment for the benefit of the community, is not a licence for a court to extend the interpretation and usurp the legislative power to deprive a citizen of the liberty of property ownership, unless the Parliament by Law expressly imposes such restrictions. Such restrictions should be clear and unambiguous, and it should not be possible to interpret
or read into the statute what the legislature did not intend so as to deprive a person of his property.
Another significant point is that, after the court of appeals ruled in 2014 that the relevant Section was not applicable to vehicles, the State did not move the Supreme Court, nor did Parliament exercise its legislative powers to include the term "vehicle" in the relevant Section, as it did in the case of the Forest Ordinance, Port Authority Ordinance, Fauna and Flore Act, Police Ordinance, Coast Conservation Act, and so on.
It is quite clear that as per Section 26 of the Forest (Amendment) Act 65 of 2009, which repealed the Section 40 of the principle enactment, the words "tools," "vehicles," "implements," "cattle," and "machines" used in committing such offence were expressly stated. In the case of a cart drawn by cattle, both the cart and the animals are intended to be confiscated because the confiscatory clause includes both.
In Govindan vs. Magoor Pitchche (20 NLR 115), the accused, who was charged with obstructing a public road with a sherbet cart containing sherbet and aerated waters for sale, was fined Rs. 5, and an order was made forfeiting the cart and its contents under Section 53 (4) of the Police Ordinance. Ennis J ruled that the forfeiture order was incorrect. In Fothergill v. Monarch Airlines (1981 Ac 251, 275), Lord Diplock commented on the long- standing assumptions of Statutory Interpretation, stating that "the Court is a mediator between the State in the exercise of its Legislative power and the private citizen."
In the case of De Saram vs Wijesekara (4 CWR 403), it was held that the provisions dealing with the disposal of properties under the Code of Criminal Procedure are never intended to authorise a court to order forfeiture in any case where there is no express penal provision in Law requiring or permitting forfeiture of property on the commission of any offence.
As per Coast Conservation Act 31A (2), if any vehicle, vessel, boat, craft, machinery, or other equipment is used in violation of the provisions of Subsection (1), any Police Officer has the power to seize such vehicle, vessel, craft, boat, equipment, or machinery, as well as any article or substance found thereon.
Let me also quote from the decision in SIRISENA AND OTHERS vs. HONOURABLE H. S. R. B. KOBBEKADUWA, MINISTER OF AGRICULTURE AND LANDS, 80 NLR page 1.
“I approach the consideration of the issue in these cases with the anxious care which Judges of the Court have always given, and, I am confident will always give, to questions where it is alleged that the liberty and rights of the subjects have been unjustifiably interfered with. It is well to remember that the jurisdiction of the Courts has always been the only refuge of the subject against the unlawful acts of the Executive and its erring officers. Courts exist for the administration of justice and have an inherent power to review the exercise by the executive of its statutory powers, which impinge on the citizens' rights and interests. An independent judiciary to which our constitution has entrusted the judicial power of the people is at once a guarantee and a bulwark of the freedom and rights of the subjects. The concept of the Rule of Law assumes that the judicial power of the State extends to the review of judicial, quasi-judicial, and executive acts and that any restriction on this power of review is a threat to the Rule of Law. Hence there is a presumption against ousting the jurisdiction of Courts to determine the extent of statutory powers. The exclusion of the jurisdiction of the Court is not to be readily inferred, but such exclusion must be either explicitly stated or clearly implied. A Court of Law, naturally, approaches in a critical spirit any legislation that is calculated to impede a Court in the discharge of its duty to administer justice. Hence, a Court will be disposed to construe any section, if possible, so as to avoid that result.”
In the same Judgment it is also stated as follows:
But there is in our Constitution another basic cardinal principle that may necessitate rethinking by the Courts in future interpreting statutes that affect individual rights and freedoms. Hitherto, the principle was accepted that statutes that interfere with the liberty of the subject and property rights should be interpreted strictly and always in favour of the subject. Under the Republican Constitution, Article 18(1) sets out the fundamental rights and freedoms. In this exhaustive list, one does not find a recognition of the fundamental rights to property. Article 18(2), however, states as follows:
"(2) The exercise and operation of the fundamental rights and freedoms provided in this Chapter shall be subject to such restrictions as the law prescribes in the interests of the national unity and integrity, national security, national economy, public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others or giving effect to the principles of the State Policy set out in section 16.
In A.G. for Canada v. Hallet & Carey Ltd., the Privy Council interpreted a provision and determined that it allowed for the removal of a right; however, on page 450, Lord Radcliff articulated the general principles as follows: "It is fair to say that there is a well-known general principle that statutes which encroach upon the rights of individuals, whether regarding personal rights or property, are subject to strict construction." Most statutes can be shown to achieve such an encroachment in some form or another, and the general principle means no more than that; where the import of some enactment is inconclusive or ambiguous, the Court may properly lean in favour of an interpretation that leaves private rights undisturbed ...".
The following passage from Maxwell, Interpretation of Statutes (9th Edition, 1946) pages 288-9 also lays down an important principle in this connection:
"The effect of the rule of strict construction might be summed up in the remark that, where an equivocal word or ambiguous sentence leaves reasonable doubt of its meaning, which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the Legislature which has failed to explain itself. But it yields to the paramount rule that every statute is to be expounded according to its expressed or manifest intention and that all cases within the mischief aimed at are, if the language permits, to be held to fall within its remedial influence."
In Perera Vs. Van Sanden(46 NLR 187 ) Cannon J held that where the accused was convicted, under a defence regulation, of buying cement without a permit and the Magistrate ordered the confiscation of the cement, in the absence of the provision for forfeiture in the penalties paragraph No. 52 of the Defence (Miscellaneous) Regulations, the Magistrate had no power to order confiscation. Section 413 of the Criminal Procedure Code did not justify the Magistrates order as the words for the disposal of in the Section were not sufficiently wide enough to include confiscation.
In Police Sergeant vs Raman Kankan (37 NLR 187) where His Lordship stated that "the Courts must remember that the forfeiture or confiscation is a penal provision and the power to confiscate should clearly be given by Law.
Silva Vs Muthai(45 NLR 142) concerns the violation of Regulation 6 (e) of the Defence (Purchase of Foodstuffs) Regulations, 1942, which provided that transporting country rice from one district to another is an offence and in such a case the vehicle or vessel in which certain produce has been transported may, after notice to the owner of the vehicle or vessel, be confiscated. Moseley SPJ ruled that, under the circumstances of the case, the bull could not be classified as a vehicle or vessel.
In Govindan vs. Magoor Pitchche (20 NLR 115), the accused was convicted under Section 53 (4) of the Police Ordinance for obstructing a public road with a sherbet cart containing sherbet and aerated waters for sale and was fined Rs. 5, and an order was made forfeiting the cart and its contents. Ennis J held that the order as to forfeiture was wrong.
Commenting on the long-standing assumptions of Statutory Interpretation Lord Diplock in Fothergill v. Monarch Airlines(1981 Ac 251, 275) stated that "the Court is a mediator between the State in the exercise of its Legislative power and the private citizen."
A reproduction of a pertinent comment by Maxwell from the fourth edition of Maxwell on Statutes would shed light on the concept of proprietor rights deprivation without clear intention. It asserts that it is highly unlikely that the Legislature would overthrow fundamental principles, violate rights, or depart from the general system of Law without expressing its intention with distinctive precision.
In terms of article 28 of the constitution, the exercise and enjoyment of rights and freedoms are 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;
Fundamental duties
(c) to work conscientiously in his chosen occupation;
(e) to respect the rights and freedoms of others, etc
As per Article 29 of the Constitution, the particular Chapter embodying the Directive Principles does not confer or impose legal rights or obligations and is not enforceable in any court or tribunal. Hence, no question of inconsistency with such provisions shall be raised in any court or tribunal.
In the light of the above matters, inter alia, one may even argue that the latest Supreme Court judgment, Hettiarachchige Anton Sujeewa Perera V AG, SC Appeal 101/2012, Supreme Court Minutes 2023.07.05, has been delivered per incuriam in that it has decided the question of confiscation under the Mines and Minerals Law, through lack of care, without reference to the relevant statutory provisions and/or earlier judgment, which would have been relevant and binding.
Lord Denning M.R. in Farrell v. Alexander [1976] 1 QB 345 at 359-360 explained the effect of stare decisis in this way:
“I have often said that I do not think this court should be absolutely bound by its previous decisions, any more than the House of Lords. I know it is said that when this court is satisfied that a previous decision of its own was wrong, it should not overrule it but should apply it in this court and leave it to the House of Lords to overrule it. Just think what this means in this case. These ladies do not qualify for legal aid. They must bear the expense of appealing to the House of Lords in order to have the decision revoked. The expense may deter them, and thus an injustice will be perpetrated. In any case, I do not think it right to compel them to do this when the result is a foregone conclusion. I would let them save their money and reverse it here and now. I would allow the appeal, accordingly.”
I quote Samayawardena J., in Bulathsinhala Arachchige Indrani Mallika v. Bulathsinhala Arachchige Siriwardane SC APPEAL NO: SC/APPEAL/160/2016, SC Minutes 02.12.2022,
‘The doctrine of stare decisis did not come about to protect the hierarchy of the Courts; it is not a question of superiority. The maxim judicandum est legibus non exemplis means adjudication is to be according to declared law, not precedent. If a decision is ex facie per incuriam, such as in Karunawathie v. Piyasena, it ceases to be a binding precedent and the doctrine of stare decisis has no applicability. There is no necessity to wait until it is overruled by a five-judge bench. What happens if it is never overruled? Then should all Courts perpetuate the admittedly erroneous decision and act in violation of the express statutory provisions and in contradiction to the legislature's intention?
Accordingly, the legal question raised in the above case has been answered as follows.
(b) Can an inferior Court refuse to follow a judgment of the Supreme Court or the Court of Appeal on the ground of per incuriam?
Yes, a lower Court can decline to follow a decision given per incuriam by a superior Court in instances where the defect clearly appears on the face of the judgment, such as in Karunawathie v. Piyasena. The decision not to follow a previous binding authority on the basis of per incuriam shall not be a matter of interpretation or preference (as in the Court of Appeal judgment in Cassell & Co Ltd v. Broome [1971] 2 QB 354).
I shall say no more than to lay down the legal principles and the case law on this matter; in Latin they say ‘res ipsa loquitur,’ i.e., the facts speak for themselves.
FINAL REMARKS
The judgment of the Supreme Court upholding the forfeiture of a lorry transporting gravel without a valid license under the Mines and Minerals Act No. 33 of 1992, as amended, warrants critical analysis. This judThis judgment raises several issues related to the principles of statutory interpretation and may impose potential hardships on vehicle owners.
Principles of Statutory Interpretation
1. Literal vs. Purposive Interpretation:
Literal Approach: The appellant argued for a literal interpretation, stating that the statute does not explicitly mention vehicles.
According to established principles, if the words of the statute are clear and unambiguous, they should be given their plain, ordinary meaning.
Purposive Approach: The respondent and the High Court adopted a purposive interpretation, looking at the broader intent of the legislation, which aims to regulate and prevent illegal activities involving minerals. While the purposive approach can be justified, it should not override the clear language of the statute.
Legislative Intent:
The Supreme Court emphasized the legislative intent to regulate mineral-related activities comprehensively. However, interpreting the term "equipment" to include vehicles stretches the ordinary meaning of the word beyond its typical usage.
The intent of the legislature is important, but it should be derived from the explicit language used in the statute. The amendment should clearly state if vehicles are to be included within the scope of "machinery, equipment, or material."
3. Contextual Interpretation:
The court cited other statutes such as the Forest Conservation Ordinance and the Poisons, Opium and Dangerous Drugs Act, which explicitly mention vehicles. This comparison highlights that when the legislature intends to include vehicles, it does so explicitly.
The Mines and Minerals Act's failure to specifically mention vehicles suggests that the legislature did not intend for vehicles to be automatically subject to forfeiture under this Act.
Hardship on Vehicle Owners - Unintended Consequences:
The broad interpretation adopted by the Supreme Court imposes significant burdens on vehicle owners. They may face forfeiture even if they are unaware of the illegal use of their vehicles.
This interpretation effectively holds vehicle owners strictly liable for the actions of others, which can be unduly harsh, especially when the owner has taken reasonable precautions to prevent misuse.
Legal Certainty and Fairness:
The principle of legal certainty requires that laws be clear and predictable. Extending the meaning of "equipment" to include vehicles without explicit statutory language undermines this principle.
Fairness dictates that owners should not be penalized without clear legislative guidance. The statute should explicitly outline any obligations or potential liabilities for vehicle owners.
Need for Legislative Clarity Amendments and Legislative Intent:
The judgment points to the necessity of amending the statute if the legislature intends to include vehicles within the scope of forfeitable items. Clear legislative amendments would remove ambiguities and ensure that all parties are aware of their rights and responsibilities.
Quite noticeably, the Supreme Court has failed to recognize that the confiscation of vehicles under the salt ordinance was repealed when the provisions of the salt ordinance were merged and reenacted in the mines and minerals ordinance. Additionally, the Legislature has chosen to omit the term "vehicle" from the mines and minerals ordinance, even though it is specifically used in the salt ordinance. This is very clear testimony that the Legislature had never intended the confiscation of vehicles and one may argue that the extended interpretation given by the Supreme Court is the usurpation of the Legislative power to make a law that had never been within the contemplation of the parliament.
The current judgment, by interpreting "equipment" to include vehicles, effectively amends the statute through judicial interpretation, which should be the domain of the legislature.
Precedential Impact:
This judgment sets a precedent that may affect future cases involving the interpretation of statutory language. It highlights the judiciary's role in interpreting laws but also the limits of this role when it comes to creating new obligations not explicitly stated by the legislature.
If the Legislature has clearly excluded vehicles from being subject to confiscation, untold hardship is being caused to the public, day in and day out, when vehicles are worth several billions are confiscated without any reasonable and legal basis. In such circumstances, every vehicle that is confiscated represents an unlawful seizure by the state, resulting in the loss of billions of rupees worth of property and the State unjustly enriching at the expense of the poor citizens. This could be deemed worse than day light robbery, if the Legislature did not intend for the Mines and Minerals Ordinance to include the confiscation of vehicles.
The very citizens in whom sovereignty is vested and who are privileged to exercise Legislative powers through their elected members and exercise judicial powers by Parliament through courts, find themselves at the receiving end, losing their liberty to hold property when there is no law to support such an eventuality. This situation imposes an undue burden on the people, and it is the duty of the Legislature, the Executive, and the Judiciary, with the assistance of the Bar, to address this anomaly and protect citizens from being deprived of their property rights without clear Legal Provisions.
To prevent such an injustice, it is essential for the Legislature to amend the Mines and Minerals Act to explicitly state whether vehicles are subject to confiscation. If the Legislature did not intend to confiscate vehicles, it must enact provisions accordingly, the Bar as the guardian of the Law, may invite the Honourable Supreme Court to reconsider the decision by a bench constituting a greater number of Judges than the bench that handed down the decision. Judges of the Courts of first instance may also be able to rescue the citizens from being subject to such an injustice if the Magistrates find the SC ruling to have been made per incuriam, after providing explicit reasons for identifying decisions as not binding based on the concept of per incuriam.
Internationally, similar issues have been addressed in various jurisdictions. For instance, in the case of Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), the U.S. Supreme Court held that the forfeiture of property without due process was unconstitutional unless the property was used in an illegal manner with the owner's knowledge. Similarly, in A-G v. De Keyser's Royal Hotel Ltd [1920] UKHL 1, the House of Lords in the UK emphasized that statutory interpretation should align with the intent of the Legislature, ensuring that property rights are not infringed upon without clear legal justification.
These principles underscore the need for clarity in legislation and judicial decisions to protect the property rights of citizens. In the absence of such clarity, the rights of individuals are compromised, and the rule of law is undermined. It is imperative for all branches of government, supported by the legal community, to ensure that laws are interpreted and applied in a manner that upholds justice and protects the rights of the people.
The Supreme Court judgment, while aiming to uphold the legislative intent of regulating mineral-related activities, overextends the principle of statutory interpretation. It imposes undue hardships on vehicle owners by interpreting "equipment" to include vehicles without a clear legislative mandate. This judgment should be revisited to ensure alignment with statutory interpretation principles, legal certainty, and fairness.
The legislature should consider amending the Mines and Minerals Act to explicitly address the forfeiture of vehicles if that is the intended policy, ensuring that all stakeholders are adequately informed and protected. Alternatively, the legislature could render the judgment in question ineffective by enacting that "equipment" does not include vehicles.
Another method is for the Bar to invite the Honourable Supreme Court to reconsider the decision by a bench constituting a greater number of Judges. Finally, it is also open to the Judges of the Courts of first instance, if they can provide explicit reasons, to identify the decision as one made per incuriam, if such a conclusion is warranted.
A JUDGMENT OF THE COURT OF APPEAL
Comments
Post a Comment