Kadidja tells us that in Sierra Leone some of the laws are published on line at
http://www.sierra-leone.org/laws.html.
She says: All I can say is that it has made life tremendously easy for not only drafters and lawyers in Sierra Leone but also for the educated non-lawyer, investors and others who would want access to our laws. It is surely a good thing and must be encouraged in other jurisdiction. As Rosmizan put it, this will be a great challenge for us drafters to do a good job in our profession because we will have it at the back of our minds that any statute/laws draft by us is not only scrutinized by our nationals and users but the whole world. Thinking about it really, reveals that it is an all round good step. Mistakes can be seen as well by others and amended, new ideas will come in from other jurisdiction and if it is done well, other jurisdictions are bound to copy those laws.
Saturday, 12 February 2011
Malawi law prohibitng the passing of flatulence in public
There have been numerous reports on alleged new legislation in Malawi prohibiting the 'passing' of flatulence in public. Our colleague Mikasha sought information from Reyneck, a Malawi drafter. Reynceck says:
This is not true, and i did not draft it. However, let me give you a bit more information on this "piece of legislation". The piece of legislation that has caused all this hullabaloo is the Local Courts
Bill, which is being debated in our Parliament now. Besides, there is always the de minimis principle. And in any event, the Local Courts Bill isn't creating a new law. The offence already existed in our Penal Code as early as 1921 (then we had the Nyasaland Penal Code in section 158). The section has always been with us, and am sure this applies to most other Common law countries represented in Class of 2010/11. We inherited this provision from the British, may be its time to revisit it.
Now, the section in issue reads as follows-
"Any person who voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way, shall be guilty of a misdemeanour".
Now Mikasha, the question that comes to mind is- how can one construe this section as "prohibiting passing flatulence in public"? I know for sure you agree with me that it doesn't, not at all! I can think of things like burning tyres near places where people live, burning rubbish or other noxious substances, and not "flatulence", what do you think? Mik, it appears to me that those that are interpreting this section as trying to prohibit "flatulence in public" are doing so either because they haven't read the section itself, or they have read it out of context. Am saying this Mikasha because if you read the sections that come before and after this provision in the Penal Code, where the section in the Local Courts Bill has been borrowed from, you would be left wondering as to why people are coming up with all sorts of interpretations. In the Penal Code, where this section has been taken from, as i have said, section 192 provides for "negligent act likely to spread disease dangerous to life; s. 193 (Adulteration of food or drink intended for sale); s. 194 (Sale of noxious food or drink); s. 195 (Adulteration of drugs); s. 196 (Sale of Adulterated drugs); s. 197 (Fouling Water); the controversial s. 198 (Fouling air); and s. 199 (Offensive trades). Of course one would understand that most of the people commenting do not have access to the piece of legislation itself so as to read it in context, but still their interpretation of this provision amazes me. Or is it an issue of lack of clarity on our part may be? You are the best judges!
Again, if s.198 of the Penal Code (now in the Local Courts Bill as well) was meant to capture "flatulence", why would the draftsperson go to great lengths using all the words in that provision instead of simply stating "Any person who passes flatulence commits an offence and is liable to a fine of ......... and imprisonment for .....years" ?
In short Mik, all what the bill is trying to do is to give limited criminal jurisdiction to the Local Courts to try misdemeanours, one of them being the one under discussion.
May be the wider issue is, in view of the ICT revolution at the turn of the 20th century, a strong web presence is important for people to easily access laws. Further, the way the general public is made aware of public bills may need re-visiting. Perhaps its time to be pro-active so that before the misinformation hits the streets or our computer and tv screens, there ought to be deliberate steps from the Executive Branch to state proposals in any public bill clearly
to enlighten the general public.
Comments?
This is not true, and i did not draft it. However, let me give you a bit more information on this "piece of legislation". The piece of legislation that has caused all this hullabaloo is the Local Courts
Bill, which is being debated in our Parliament now. Besides, there is always the de minimis principle. And in any event, the Local Courts Bill isn't creating a new law. The offence already existed in our Penal Code as early as 1921 (then we had the Nyasaland Penal Code in section 158). The section has always been with us, and am sure this applies to most other Common law countries represented in Class of 2010/11. We inherited this provision from the British, may be its time to revisit it.
Now, the section in issue reads as follows-
"Any person who voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way, shall be guilty of a misdemeanour".
Now Mikasha, the question that comes to mind is- how can one construe this section as "prohibiting passing flatulence in public"? I know for sure you agree with me that it doesn't, not at all! I can think of things like burning tyres near places where people live, burning rubbish or other noxious substances, and not "flatulence", what do you think? Mik, it appears to me that those that are interpreting this section as trying to prohibit "flatulence in public" are doing so either because they haven't read the section itself, or they have read it out of context. Am saying this Mikasha because if you read the sections that come before and after this provision in the Penal Code, where the section in the Local Courts Bill has been borrowed from, you would be left wondering as to why people are coming up with all sorts of interpretations. In the Penal Code, where this section has been taken from, as i have said, section 192 provides for "negligent act likely to spread disease dangerous to life; s. 193 (Adulteration of food or drink intended for sale); s. 194 (Sale of noxious food or drink); s. 195 (Adulteration of drugs); s. 196 (Sale of Adulterated drugs); s. 197 (Fouling Water); the controversial s. 198 (Fouling air); and s. 199 (Offensive trades). Of course one would understand that most of the people commenting do not have access to the piece of legislation itself so as to read it in context, but still their interpretation of this provision amazes me. Or is it an issue of lack of clarity on our part may be? You are the best judges!
Again, if s.198 of the Penal Code (now in the Local Courts Bill as well) was meant to capture "flatulence", why would the draftsperson go to great lengths using all the words in that provision instead of simply stating "Any person who passes flatulence commits an offence and is liable to a fine of ......... and imprisonment for .....years" ?
In short Mik, all what the bill is trying to do is to give limited criminal jurisdiction to the Local Courts to try misdemeanours, one of them being the one under discussion.
May be the wider issue is, in view of the ICT revolution at the turn of the 20th century, a strong web presence is important for people to easily access laws. Further, the way the general public is made aware of public bills may need re-visiting. Perhaps its time to be pro-active so that before the misinformation hits the streets or our computer and tv screens, there ought to be deliberate steps from the Executive Branch to state proposals in any public bill clearly
to enlighten the general public.
Comments?
Retrospective legislation
A colleuage from Malaysia, Noor, has asked me to start this thread. Noor says:
I checked the Malaysian Constitution and confirmed that the Art 66(5) provided as follows:
"A Bill shall become law on being assented by Yang di-Pertuan Agong or as provided in Clause (4A), but no law shall come into force until it has been published, without prejudice, however, to the power of Parliament to postpone the operation of any law or to make laws with retrospective effect".
In our jurisdiction, as far as I know - apart from transitional provision, to give a Bill a retrospective effect, we just put a date earlier than the publish date. For example, a bill is passed and published on 1.1.2011 but the coming into force the the Bill is on 1.12.2010. That is retrospective to us (as simple as that!).
I just wonder, Art 66 provides only for retrospective - and not retroactive. Does it mean that we cannot make laws to operate retroactively - or is it okay as retrospective would cover retroactive.
Do you have any opinion on that? Or is it similar to your countries? I have been searching for malaysian cases for this issue, but unfortunately, i couldn't find any.
I checked the Malaysian Constitution and confirmed that the Art 66(5) provided as follows:
"A Bill shall become law on being assented by Yang di-Pertuan Agong or as provided in Clause (4A), but no law shall come into force until it has been published, without prejudice, however, to the power of Parliament to postpone the operation of any law or to make laws with retrospective effect".
In our jurisdiction, as far as I know - apart from transitional provision, to give a Bill a retrospective effect, we just put a date earlier than the publish date. For example, a bill is passed and published on 1.1.2011 but the coming into force the the Bill is on 1.12.2010. That is retrospective to us (as simple as that!).
I just wonder, Art 66 provides only for retrospective - and not retroactive. Does it mean that we cannot make laws to operate retroactively - or is it okay as retrospective would cover retroactive.
Do you have any opinion on that? Or is it similar to your countries? I have been searching for malaysian cases for this issue, but unfortunately, i couldn't find any.
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