Legally apposite and effective in law

7 April 2015 04:10 am - 0 - {{hitsCtrl.values.hits}}

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Last Thursday, the Court of Appeal dismissed a writ petition filed by northern fishermen’s leaders from Jaffna, Kilinochchi and Mannar. The petition sought the court’s relief given the the government’s continuing failure to prosecute Indian fishermen arrested for fishing illegally in Sri Lankan waters. Chandaka Jayasundere representing the fishermen’s leaders drew the court’s attention to Court records of the proceedings filed against arrested Indian fishermen in Talaimannar and Point Pedro. He pointed out that the cases were filed under the provisions of the Immigrants and Emigrants Act No. 48 of 1948.

Despite claims to the contrary, the Sri Lankan government has not and does not arrest Indian fishermen for illegally fishing in Sri Lankan waters. Indian fishermen are arrested and charged for arriving in Sri Lanka without a valid visa.

Not only are Indian fishermen not charged for fishing illegally in Sri Lankan waters, but not a single Indian fisherman has ever been convicted for violating the Immigrants and Emigrants Act. According to the records produced in Court, Indian fishermen are charged and remanded. After a period of anywhere between several days and several months, they are released without charge, on the instruction of the Attorney General.

It’s hardly any wonder that Indian trawlers continue to fish illegally in Sri Lankan waters for three nights every week or that some Indian trawlers have been taken into custody more than once -- for immigration violations -- by the Sri Lankan Navy. As Mr. Jayasundere pointed out, the current response of the government is defective in law and ineffective in deterring Indian trawlers from fishing illegally in Sri Lankan waters.

Coincidentally, at the same time that the Court of Appeal was dismissing the writ petition, northern fishermen’s leaders – M.M. Alam from Mannar, Joseph Francis from Kilinochchi and A. Emiliyanpilai from Jaffna – were meeting President Mithripala Sirisena in Colombo. According to the leaders the President spoke strongly against Indian trawlers fishing illegally in the sovereign waters of Sri Lanka and expressed his solidarity and future support for the development of fisheries in the North.

Ironically, one of the outcomes of the meeting was that the President instructed the Secretary to the Ministry of Fisheries to submit a paper to the Cabinet, setting out ways in which stronger legal action could be taken to deter Indian trawlers from fishing illegally in Sri Lanka.

As the northern fishermen’s petition explains; in 1979 Parliament enacted the Fisheries (Regulation of Foreign Fishing Boats) Act, to regulate, control and manage fishing and related activities by foreign boats in Sri Lankan waters. Section 4 of the Act states that no foreign fishing boat should be used for fishing or related activities in Sri Lankan waters except under the authority of a permit issued by the Secretary to the Ministry of Fisheries and Aquatic Resources.
Section 13 of the Act, authorises officers of the Department of Fisheries, the Sri Lankan Navy and the Air Force (and others) to seize and detain any boat used for the commission of an offence under the act and to arrest any person he believes to have committed the offence. Upon arresting persons or seizing fishing boats, authorised officers must produce the suspects and the boats in the High Court. Thereafter, the Secretary to the ministry is empowered to issue orders to sell any fish or aquatic plants on board the ship if the said fish or aquatic plants are subject to speedy decay and to deposit the sum received from the sale in the High Court.

Section 18 of the Act further states that where any person is convicted of an offence in terms of Section 4 of the Act (i.e., fishing in Sri Lankan waters without authorisation), the High Court shall make order that the boat used for commission of the offence together with the fishing gear, equipment, stores and cargo and any fish or aquatic plants found on board or the proceeds of the same shall be forfeited.

The Fisheries (Regulation of Foreign Fishing Boats) Act is legally apposite. And if the trawler, the trawl gear, fish and anything else found onboard are forfeited following conviction, it is likely to deter Indian trawlers from illegally fishing in Sri Lankan waters.

The Court of Appeal dismissed the northern fishermen’s leaders’ writ petition last week, accepting the Attorney General’s argument that the court has no right to impinge upon Attorney General’s discretion in respect of the most appropriate legal response to persistent illegal fishing in Sri Lankan waters by Indian fishermen -- the Immigrants and Emigrants Act.

The fishermen lost on a technicality and the President has quite rightly asked for a review.

Dr. Steve Creech is a fishery consultant with an interest in the Palk Bay fishery dispute.

He can be contacted at
oddfish@slt.lk

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Legally apposite and effective in law

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