The Cabinet recently approved a proposal by Justice Minister Rauff Hakeem to extend state immunity against prescription by amending Section 15 of the Prescription Ordinance. The Prescription Ordinance of 1871 regulates the time within which legal proceedings may be brought forth for cases pertaining to immovable property, contracts, mortgages, damages and so on. Section 15 of [...]

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Cabinet approves open-ended state immunity against prescription

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The Cabinet recently approved a proposal by Justice Minister Rauff Hakeem to extend state immunity against prescription by amending Section 15 of the Prescription Ordinance. The Prescription Ordinance of 1871 regulates the time within which legal proceedings may be brought forth for cases pertaining to immovable property, contracts, mortgages, damages and so on. Section 15 of the Ordinance maintains that the Ordinance “[shall not] in any way affect the rights of the state,” doesn’t apply to divorce proceedings, and doesn’t apply if there are special provisions made elsewhere for court proceedings to commence within a certain period; for example, the Police Ordinance maintains when action should be filed against police officers, not the Prescription Ordinance.

“The Legal Draftsman has been instructed to prepare the amending legislation, from now on, they will decide the best course of action,” the Minister said. Minister Hakeem told the Sunday Times that the proposal was brought because of issues with the 1997 Court of Appeals judgment in the case of Attorney General v. Wilson and Another. In the case, the Attorney General filed for damages when a lorry hit a state vehicle, six years after the incident (normal time limit is three years), claiming that under Section 15, the state is immune from “rules of limitation.”

The Appeal Court upheld that the state has immunity from rules of limitation under Section 15 only in respect to inalienable rights, such as immovable property or land, but not for alienable rights, such as damages or mortgages. Justice Ministry Secretary Kamalani de Silva said the new amendments are to “make the legislation clearer” that the “‘rights of the state’ should be available for both alienable and inalienable rights.” She added that the divorce and special provisions clauses of Section 15 would remain untouched.

Former State Counsel Ranjan Mendis called the proposed amendment “grossly unreasonable” that will allow the state to file action “at their convenience” years or even decades later. “Suppose a person is in an accident involving a state vehicle, and the government files for action 25 years after the incident. Will this person know the government is going to sue and keep relevant documents? Even the police won’t keep records for that long. Witnesses maybe dead or might have forgotten. This puts the individual at a distinct disadvantage against the state. Not only for accidents, but even for contracts,” Mr. Mendis said.

“This cannot be treated the same way as protection given to the state in the Prescription Ordinance to safeguard government land,” Mr. Mendis added. “This goes against the principles of natural justice, which says an individual must be prosecuted within a reasonable time –a principle accepted in all civilised legal systems.”




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