By Kalyananda Tiranagama
Lawyers for Human Rights and Development
It has been reported that the Ministry of Justice is moving to amend the Antiquities Ordinance, repealing the provisions therein preventing the courts from releasing persons charged with or accused of offences under the Antiquities Ordinance on bail. Under the proposed amendment, the Magistrate’s Court is to be given power to release such persons on bail. This proposal is made in the guise of a measure to reduce prison congestion.
Theft of antiquities, demolition of the Buddha statues and causing damage to archeological sites by treasure hunters and the willful destruction and damage of antiquities and archeological sites by interested parties have become serious problems that need to be urgently addressed with deterrent action.
As reported in the media, from 1977 to 1994 the Police received 242 complaints of theft, damage and destruction of antiquities; from 1995 to 2001, the number of complaints the Police received was 424. There is a sharp increase in the number of incidents reported in the recent past. In 2019, the Archaeological Department received 630 complaints of incidents where antiquities were either damaged or destroyed. During the first nine months of 2020, 430 such incidents were reported to the Archeological Department.
The Antiquities (Amendment) Act No. 24 of 1998 was enacted by Parliament with a view to preventing the incidents of theft of antiquities and willful destruction and damage of antiquities and archeological sites. This Act introduced three new provisions enhancing the penalties for offences under the Ordinance and requiring the offenders to be kept in custody without bail till the conclusion of the trial.
S.15A. Any person committing theft of an antiquity in the possession of any other person shall be guilty of an offence –
S.15B. Any person willfully destroying, injuring, defacing or tampering with an antiquity or willfully damaging any part of it shall be guilty of an offence –
S. 32. Any person who commits a breach of (a) any provision of S. 21 (commencing or carrying out any work of restoration, repair, alteration or addition in connection with any protected monument except upon a permit issued by the Commissioner General of Archeology), or (b) any regulation made under S. 24 shall be guilty of an offence – punishable on conviction after summary trial before a Magistrate with a fine not exceeding Rs. 50,000 or with imprisonment for a term not less than two years and not more than 5 years or with both such fine and imprisonment. Same penalty has been laid down for all offences under the Act.
S. 15C. Notwithstanding anything to the contrary in the Code of Criminal Procedure Act or any other written law, no person charged with or accused of an offence under the Antiquities Ordinance shall be released on bail.
The penalties laid down in the Act for these serious offences are hardly adequate to have a deterrent effect on the culprits. The Court has the option of imposing a fine instead of a jail sentence. The maximum fine that can be imposed is Rs. 50,000. Quite often a fine of a lower amount is imposed. It is very seldom that a sentence of imprisonment is imposed on an offender in these cases.
Only the provision that a person charged with or accused of an offence under the Antiquities Ordinance cannot be released on bail by any Court has some deterrent effect on the offenders. They have to remain in custody for a few weeks or a few months till they are charged in the case. Once they are charged, in most cases they plead guilty and pay a fine and walk away.
In response to certain media reviews critical of this move to amend the law enabling Magistrates to release the suspects on bail when they are produced in Court as something detrimental to the protection of our archeological heritage, Chief Legal Advisor to the Ministry of Justice, Mr. U. R. de Silva, P. C. has issued an explanation justifying the Justice Ministry decision to relax the law, enabling the Magistrates to release the offenders on bail. According to his explanation:
All those who are arrested and produced in Court by the Police are not treasure hunters. Abusing the law, the Police arrest and charge innocent people. As an example, he cites how the Police produce drug addicts in Courts as drug traffickers, preventing them from being released on bail by the Magistrates.
It is no secret that the Police have heavily contributed to the congestion in prisons by producing in Courts many drug addicts as drug traffickers, abusing the law and thus preventing them from being released on bail by the Magistrates. The Attorney General is also aware of this. That is why the Attorney General, following the Mahara Prison riot, stated that he had instructed the Inspector General of Police several times to consider filing cases under S. 78(5) of the Poisons, Opium and Dangerous Drugs (Amendment) Act instead of S. 54 (a), which has been the usual practice, in order to reduce prison congestion.
Why doesn’t the Ministry of Justice propose to amend the Poisons, Opium and Dangerous Drugs Act, enabling Magistrates to grant bail to persons arrested with small quantities of drugs instead of keeping them in custody for years without bail, in the same manner it proposes to amend the Antiquities Ordinance?
If the Police abuse the law by arresting and producing in Courts innocent people as treasure hunters and keep them in custody without bail, why can’t the AG and the IGP direct them to strictly comply with the law and take action against the police officers who abuse the law?
This is a state of affairs totally different from what the legislature expected.
It is an erroneous statement. Parliament enacted this law in 1998 specifically for the purpose of protecting antiquities by taking stern action against those who damage or destroy them. S. 15C clearly states that whatever the other laws may state, no person charged with or accused of an offence under the Antiquities Ordinance shall be released on bail.
As the Immigrants and Emigrants Act has been amended enabling Courts to release suspects on bail, it is a grave mistake not to amend the Antiquities Ordinance enabling Courts to grant bail.
This is also not a correct statement. The Immigrants and Emigrants Act was amended by Act No. 31 of 2006 to grant relief to hundreds of suspects held in custody being unable to obtain bail due to the Supreme Court Judgment given in 2006 in Thilanga Sumathipala case (Attorney General & others vs. Thilanga Sumathipala – (2006) 2 SLR 126) depriving the Court of Appeal of its jurisdiction to grant bail.
This Act made provision for release on bail of all persons held in remand without bail on the date on which this Act came into operation due to the Supreme Court Judgment in the Thilanga Sumathipala case.
This Amendment Act did not grant power to the Magistrate’s Courts to release on bail all suspects held in custody in respect of all offences under the Immigrants and Emigrants Act. Under this Amendment, a Magistrate can grant bail only for an offence in respect of which there is no express provision made for granting bail. – S. 47A (2) Where there is an express provision for granting bail, a Magistrate cannot grant bail in respect of such offences.
Only a High Court can grant bail to a person accused of an offence under S. 45C of the Act upon proof of exceptional circumstances.
S. 47 (1) of the Act states that, notwithstanding anything in any other law, the offences mentioned therein shall be non-bailable and no person accused of such an offence shall in any circumstances be admitted to bail.
Whenever any digging is done anywhere the Police have the habit of arresting persons and producing them in Court as suspects under the Antiquities Ordinance. They have to languish in custody for months till the certificate is produced showing that it is not a place coming under the Antiquities Ordinance.
The Antiquities Ordinance clearly states what are the offences coming under it. Instead of amending the law enabling Magistrates to release the offenders committing all kinds offences under the Ordinance on bail at the time they are produced in Court, there are many things that can be done to prevent the Police from acting arbitrarily abusing the law.
The Police cannot arbitrarily arrest people and produce them in Court for digging any land; If they do so a complaint can be made against the Police to the Supreme Court or the Human Rights Commission for violation of fundamental rights.
The Attorney General can direct the Police not to arrest and prosecute without ascertaining from the Archeological Department whether it is a site with antiquities.
The Court can promptly call for the certificate from the Archeological Department.
e. Another sorry state of affairs is that, though the place where the digging was done is not a place coming under the Antiquities Ordinance, the Police file action on the opinion of the Commissioner General of Archaeology that charges can be brought if it appears that the digging has been done in search of antiquities.
No such action can be filed under the law. It is an arbitrary action taken totally contrary to law. One cannot understand why the Bar Association of Sri Lanka and the lawyers appearing in these cases remain silent without challenging the legality of such actions.
f. As they cannot obtain bail, in many of these cases suspects plead guilty for an offence which they have not committed and pay the fine of Rs. 50,000 getting their image tarnished. Having understood this practical reality, the Ministry of Justice has taken action to address this issue.
This is a strange story. Why should a person plead guilty for an offence which he has not committed? How can a lawyer advise his client to plead guilty to an offence which he has never committed?
What are these cases in which the innocent people have pleaded guilty for offences which they have never committed and paid fines of Rs. 50,000 tarnishing their images? Before which Courts? Can the Ministry of Justice issue a list of these cases?
Why should they pay Rs. 50,000 in each of these cases? Rs. 50,000 is the maximum fine a Court can impose for any of these offences. As laid down in the Act, the penalty is a fine not exceeding Rs. 50,000. The Court has the discretion to impose a lesser fine. Depending on the circumstances of the case it may be a fine of Rs. 10,000, 20,000 or 25,000.
All these are false premises.
Archeological sites and antiquities in a country are the national historical heritage of the people of the country. Not only the present generation, but all the future generations also have an equal right to them. Destruction of archeological sites and antiquities will result in the destruction of the historical national heritage of the people of the country. It may be a deliberate attempt at turning the history of the country upside down by erasing historical evidence. It is worse than any act of destruction of environment.
If any forest is destroyed it can re-forested. But if an antiquity or an archeological site is destroyed it can never be restored to its previous condition. Bamian Buddha Statues destroyed by Talaiban in Afghanistan is a clear example. A replica may be erected in its place, but it has no historical or archeological value. Any change, alteration, removal or addition of parts in an antiquity or an archeological site will result in the diminution of its archeological value. That is why even commencing or carrying out any work of restoration, repair, alteration or addition in connection with any protected monument without a permit issued by the Commissioner General of Archeology has been made an offence punishable under the law and all offences under the Antiquities Ordinance have been made unbailable by any Court of law.
Frequently our media, both print and electronic, disclose incidents of destruction of antiquities and archeological sites throughout the country. Many of these incidents reported from the Northern and Eastern Provinces, are not acts of treasure hunters, but deliberate and planned acts of destruction of archeological sites by interested parties. Though hundreds of such incidents are reported, very seldom legal action is taken against the culprits due to lack of adequate resources in the Archeological Department and lethargy or insensitivity of the officials.
In the face of the threats currently posed, antiquities and archeological sites remain survived even to this extent due to the provision in S. 15C of the Ordinance that no person charged with or accused of an offence under the Antiquities Ordinance shall be released on bail by any Court. Even the Court of Appeal has no jurisdiction to release such a person on bail. If the Antiquities Ordinance is amended as proposed by the Ministry of Justice granting jurisdiction to Magistrate’s Courts to release on bail offenders charged with offences under the Antiquities Ordinance, any offender who has deliberately destroyed any priceless antiquity or archeological site will be able to obtain bail and go home on the day he was produced in Court itself. This will amount to giving an open license for the destruction of archeological heritage of our people. As the maximum fine that can be imposed is Rs. 50,000, any offender can pay the fine and get the license. By paying the fine he can get away after destroying any antiquity.
The Chief Legal Advisor to the Ministry of Justice has suggested to increase the penalties for the offence while granting jurisdiction to Magistrate’s Courts to release offenders on bail. If the offenders can get bail from the Magistrate’s Court when they are produced in Court, even if the amount of fine that can be imposed for the offence is increased to Rs. 500,000, that will not have any deterrent effect in preventing deliberate and planned activities of destruction of archeological sites in the North – East and other areas in the country.
If this amendment proposed by the Ministry of Justice is brought about that will seal the fate of all our unprotected antiquities and archeological sites. It will wide open the gates for destruction of our invaluable antiquities and archeological sites.as happened in the case of Devanagala, Kuragala and Vijithapura. No museum, antiquity or archeological site will remain safe thereafter.
It is an unshirkable duty and responsibility of the Government to protect this national heritage of our people for the posterity. It can be done not by relaxation of the laws enacted for the purpose protecting them, but by further strengthening the law against this destruction. If a mandatory minimum jail sentence coupled with a fine, such as imprisonment for a term not less than two years and not more than 5 years and a fine not less than Rs. 50,000, is laid down for the offences of theft of an antiquity and willfully destroying, injuring, damaging, defacing or tampering with an antiquity then the penalty may have a deterrent effect on persons prone to commit this type of offences. Persons committing these anti-national crimes must be kept in custody without bail till the conclusion of the trial as in the case of offences under the Prevention of Terrorism Act.
VIOLENT NIGHT —Santa Claus goes Die-Hard this Christmas
By Tharishi Hewavithanagamage.
Tis’ the season to be jolly and binge watch Christmas movie classics like ‘Home Alone’, but in a twisted turn of events Director Tommy Wirkola has other plans for audiences. With a screenplay by Pat Casey and Josh Miller, Director Wirkola and his team flips the table on the Christmas movie stereotype and gives audiences a scintillating and gut-churning tale starring the beloved Santa Claus. The movie stars, David Harbour, John Leguizamo, Leah Brady, Beverly D’Angelo and Alex Hassell among others.
The film starts with a boozy opening featuring a not-so-jolly, drunk, self-loathing Santa Claus complaining about how children these days are greedy and are ungrateful. The story then shifts it focus on to the über-wealthy but awfully dysfunctional Lightstone family, who have gathered to celebrate Christmas. Siblings Alva and Jason have brought their families to spend time with their mother Gertrude. Alva, her son Bertrude and actor boyfriend Morgan Steele, plan to gain financial benefits from Gertrude, while Jason his ex-wife Linda attempt to fix their marriage for the sake of their daughter Trudy. The ‘holy night’ becomes a more ‘gory night’ as the Lightstone family are taken hostage by a group of mercenaries led by ‘Mr. Scrooge’, who are looking to steal $300 million locked away in a massive vault within the compound. Santa who had arrived to deliver his gifts is unwillingly caught up in the unfolding mayhem, having fallen asleep mid-cookie/booze binge. Santa Claus is soon forced to pull himself together for young Trudy, and deliver more than just ‘lumps of coal’ to the bad guys.
As the title itself suggests, the highlight of the movie is the violence and it lives up to its name. Wirkola and the team go all in with the violence, plenty of blood and gore and crude language to top it all off. Blood and guts are the last thing one would expect from Christmas flicks. The movie is packed with very graphic action sequences given to audiences from every camera angle possible, so it may not be for the faint hearted.
The film borrows greatly from the quintessential holiday movies of all time— ‘Home Alone’ and ‘Die-Hard’. Both franchises have always resonated well with audiences over different generations and the two titles, in a similar vein, combine action and violence set during Christmas time. The deadly booby traps that Trudy sets up bring back memories of Kevin McCallister’s assault on the Wet Bandits— Marv and Harry and David Harbour’s Santa is basically the new John McClane. Both Die-Hard and Home Alone have done well with striking a balance between the violence and themes about family, love and bringing people together for the holidays. For Wirkola who is amplifying the violence a thousand times over, it is important to not lose the festive vibes amidst the unbridled carnage. The movie manages to balance the scales just enough that it does not hamper the thrill. Wildly entertaining as it may be, the short and rather simple storyline affects the pace of the film. The storyline does not ponder too much over who lives and dies and barely goes into detail about the characters, and fails to give the film solid ground.
The star that truly shines is David Harbour, who is known best for his work as Jim Hopper on the Stranger Things series. He delivers a very natural performance, almost as if he was destined to play the role of a not-so-Saint Nick. He brings his A-game into the violent aspects of the role, while simultaneously delivering heart-warming scenes. Adding his own input into developing the character in the early stages of production, Harbour surely enjoyed this new rendition of Santa Claus. Adding more layers and elements to the character, the movie refers to and expands on the many cultural iterations of Saint Nicholas. ‘Violent Night’ gives audiences a glimpse into Santa’s history with a Viking-style backstory. Going by Nicomund the Red, he topped the naughty list as a warrior who pillaged and killed with his reliable hammer, Skullcrusher. Obviously in this scenario his former lifestyle gives him a greater advantage over the bad guys. Harbour brings great energy and inventively switches with ease between the hard and soft elements that complete the character.
Leah Brady’s character Trudy plays a key role alongside Harbour’s Santa, as it’s their relationship that keeps the story running. Trudy depicts the essence of Christmas and is the epitome of everything that is good in the world. She is the emotional core of the tale— a little girl who needs something to believe in. A classic Christmas trope but one that is necessary to push the story forward. Trudy’s character reminds Santa that goodness and kindness is still there, in a world driven by greed and selfishness. The character dynamic helps strike an important balance between the violence and sentimental aspects of the holiday season. The rest of the cast are given ample screen time to work with their characters but don’t necessarily stand out, due to the lack of a solid storyline.
‘Violent Night’ is a simple tale that puts a fresh spin (and brutal murders) on the usual holiday flicks. Home Alone and Die-Hard were violent in their own way, but Wirkola is intensifying the bloodbath and catering to largely adult audiences. It’s not every day that audiences get to see a foul-mouthed, drunk Santa Claus who surprisingly turns out to be very good at crushing skulls and delivering nut-cracking blows with a sledgehammer, save the day. David Harbour’s rendition of Santa can sit at the top with the likes of Deadpool and John Wick based solely off the gruesome and highly graphic action sequences it offers. For audiences looking to catch the film Wirkola’s magic guarantees a bloody good time.
‘Violent Night’ is currently screening at Scope Cinemas.
South likely to be hit most by West’s price cap on Russian crude oil
Months into Russia’s invasion of Ukraine, it is becoming increasingly clear that the latter’s traumas would not end any time soon. Nor is the invader registering any notable gains from its fatal decision to annex Ukraine by armed means and might. However, it’s abundantly clear that the destabilizing economic consequences for the world from the invasion are likely to increase exponentially.
The recent decision by the G7, EU and Australia to place a price cap of US $ 60 on a barrel of Russian crude oil is further proof of the West’s intention of weakening Russia relentlessly on the economic plane, but as matters stand, it is the global South that is likely to suffer most from this decision.
Observers of the global oil industry were quoted as saying that the world would need to brace for further oil price hikes as a result of the Western decision and that OPEC would likely reduce its oil output in the days to come with the aim of propping-up prices. Needless to say, these developments translate into graver economic hardships for the more vulnerable economies of the South, although destabilizing ripple effects from stepped-up oil prices would be felt worldwide as well.
At the time of the Russian invasion of Ukraine in February, hunger and famine were already taking hold of parts of Africa. Some African countries with the worst food crises are; Kenya, Nigeria, Ethiopia and Somalia. Their condition was further aggravated as a result of food and energy prices escalating, close on the heels of the invasion.
It was only a matter of time before these economic aftershocks made themselves felt in even the West. Right now, the West is very much into a ‘Winter of Discontent’, with rising food and energy prices proving to be doubly distressing. Inflation in the UK, for instance, is said to be notably high.
In the Asian theatre, countries such as Sri Lanka and Afghanistan are virtually begging for survival. If not for the largesse of the international community, it could be truly said that Sri Lanka ‘would not live to see another day’. If its multi-dimensional crisis is not resolved expeditiously, Sri Lanka is likely to be categorized by the world community as one of those countries with the highest levels of hunger in South Asia and Southeast Asia. Some other countries in this category from the regions concerned are: Timor-Leste, Afghanistan, Pakistan, India and North Korea.
Accordingly, the mentioned economically-distressed countries and more are unlikely to survive another series of energy and food price shocks and also remain intact, so to speak. However, with the prospects remaining bleak for a negotiated settlement of the Ukraine crisis, the possibility of the international community alleviating the economic hardships of the South in the foreseeable future is remote. The conclusion is inescapable that the South would need to brace for aggravating material hardships and economic disempowerment.
Wise counsel would need to be brought to bear on the Russian political leadership to enable it to see the no-win situation into which it has brought itself in the Ukrainian theatre. President Putin is unlikely to take the path of negotiations in Ukraine if the latter course would incur for him a loss of face and prestige. The negotiated settlement while ensuring Ukraine’s independence and geographical integrity should guard against the possibility of a drastic loss of prestige and credibility for the Russian President in the eyes of his public at home.
However, the world community is quite a distance away from such a win-win outcome, considering the polarities in thinking and the persisting hostile relations between the main sides to the Ukraine crisis. The solution calls for deft diplomacy of the highest order.
It is left to powers, such as China and India, to take up the challenge of bringing about a negotiated political settlement in Ukraine. China has not condemned the Russian invasion of Ukraine but is not endorsing it either. Since the Chinese political leadership has entered into what may be called a détente process of sorts with the US, it emerges as a suitable candidate to bring the antagonists in Ukraine to the negotiating table.
President Xi could use the measure of cordiality he established with President Biden before the recent G-20 summit in Indonesia to narrow the differences between the conflicting sides in Ukraine, considering that the West’s staunch support for Ukraine is a vital factor in perpetuating the conflict.
Likewise, Indian Prime Minister Narendra Modi could use his offices as the head of the G-20 to help to bring the crisis in Ukraine to an end. As is the case with China, India enjoys cordial ties with Russia and being a major democracy, India is likely to see the wisdom of ending the Ukraine conflict by peaceful means, in consideration of the need to serve the best interests of the Ukrainian and Russian publics without further delay.
A moral duty is cast on the world’s foremost democracies, such as India, to attach primacy to the wellbeing of people everywhere and in the current world economic crunch, it is the people who are affected negatively most. It stands to reason if the Ukraine invasion is ended through negotiations, there would be considerable relief for people worldwide.
The fact that there is considerable popular unrest against the political leadership of China and Russia at present should further prompt the respective Presidents of these countries to lose no time in doing their best to end the Ukraine crisis by peaceful means. It ought to be clear that their tenures at the helm of their countries would no longer be peaceful, since their policies, domestic and foreign, have only served to trigger internal dissent and unrest. They may deploy state coercion to get such unrest under control but the possibility is that the people’s animosity towards their regimes will explode time and again.
If Xi and Putin would permit wise counsel to prevail they would redress the grievances of their publics by peaceful means rather than court chronic and continuing dissent against their regimes by seeking to quell their popular uprisings through the use of coercion. Next, they should use the expertise they have acquired locally to heal a ‘running wound’ that is bringing distress to people the world over, such as the Ukraine crisis.
Christmas with the Calibre Team
The festive season is certainly brightening up and, going by what I see on social media, there will be plenty of festive activities for everyone, and that’s a good sign, indeed, as we missed out on those Christmassy celebrations, the past two years, mainly due to the pandemic.
Choro Calibre and X-Calibre, two unique bands, with energetic musicians, who are focused and passionate to create choral and acoustic music, in their own style, have released their new Christmas cover song…the ever popular Jose Feliciano festive hit, ‘Feliz Navidad.’
This much loved Christmas pop song has been given an electronic colour, and twist, by the Calibre Team.
For the record, ‘Feliz Navidad’ was written, in 1970, by Puerto Rican singer-songwriter José Feliciano.
With its simple, heartfelt lyrics—the traditional Spanish Christmas and New Year greeting “Feliz Navidad, próspero año y felicidad” means Merry Christmas, a prosperous year and happiness”.
The song has been heard, on the radio, by an estimated 3.8 billion people, according to Billboard, where it remains as one of the top 10 best-performing songs on its Holiday 100 chart.
You can check out the new music video, by the Calibre Team, on YouTube, and download the song on Apple Music and Spotify.
Choro Calibre and X-Calibre became a reality, in 2009, when Shamal De Silva, driven by the passion for music, teamed up with a few of his friends and started a choir, and a band.
Shamal began his music career at the age of just eight, probably the youngest church organist at the time, when he started playing at St. Paul’s Church, in Waragoda. Later, he took over the leadership of the College Choir, in 2008, at his Alma-Mater, St. Joseph’s College, Colombo, and went on to win “The Musician of the Year” award, in 2009, for his multi-disciplined musical contributions. He also excelled in his studies and graduated from the University of Colombo.
Explaining the meaning of ‘Calibre,’ Shamal says Excalibur is the legendary sword of King Arthur and it is believed to be the strongest sword – unbreakable, and powerful. And so, the band is named as X-Calibre, and the choral group as Choro Calibre.
Elaborating further, Shamal indicated that the choral group, Choro Calibre, is an international award-winning commercial choir (won three awards at the Asia Cantate Choir Games, held in Thailand), and they perform at weddings, events, and Christmas carols, while X-Calibre is an acoustic band, also doing weddings, events and private functions.
“With our new outlook, new sound, re-arranged music and melodious harmonies, we’ve got some exciting events and productions lined up. We perform different genres and musical eras, ranging from the sounds of golden oldies to the top club hits of today”, said Shamal.
You could check them out, during the festive season, at the following venues:
• 14th December: 7.00pm – Cafe Ivy
• 16th to 25th December: 4.00pm – Cinnamon Grand
• 17th December: 5.00pm – Gold FM 70s show at Taj North Lawn
• 20th December: 7.00pm – Christmas party at Cinnamon Lakeside
• 21st to 25th December: 7.00pm – Cinnamon Lakeside
• 22nd and 23rd December: 8.00pm – Taj Samudra
• 24th and 25th December: 8.00pm – Hilton Colombo
• 22nd to 24th December: 9.00pm – Galadari Hotel
• 25th December 2022: Galadari Hotel
VIOLENT NIGHT —Santa Claus goes Die-Hard this Christmas
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