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Tobacco and Alcohol Authority Act No. 27 of 2006

LANCET, the prestigious British Medical Journal recently published a research report in which Tobacco and Alcohol are classified within 10 most dangerous drugs in the world. Dr. Daniel Nutt and the Bristol University conducted a research among the medical profession and social workers and placed Alcohol as the fifth and Tobacco as the seventh most dangerous drugs. It was also reported that 40% and 50% hospital patients in the UK had tobacco or alcohol related illness respectively.

Sri Lanka withstanding the heavy lobbying by the merchants of death is enforcing National Authority on Tobacco and Alcohol Act No. 27 of 2006 with effect from December 01st, 2006. Within one week, 500 violators of the law had been produced before courts.

According to the Health Ministry officials during the three months tobacco sales have plummeted by 30% and alcohol by 20%. It is also reported that the Government is confronting heavy pressure from the tobacco and alcohol industries to relax the law, but so far the State has not relented.

The new Law does not ban tobacco and alcohol as prohibited drugs in Sri Lanka like cannabis which is considered less dangerous. The law only restrains access to them and restricts public use and sales. Public advertisements have been prohibited.

The Law certified on August 29, 2006 and was brought into operation on 1st December 2006. The National Authority on Tobacco and Alcohol under Section 2 of the Act was appointed in January 2007.

Most of the senior officials are from Government Ministries dealing with health, justice, education, medicine, trade, sports and youth affairs, dangerous drugs control board, excise department and police with five additional members from among experts in tobacco and alcohol. The Chairman would be a full time Chief Executive Officer.

Authorized Officer

Section 16 designates Public Health Inspectors, Police and Excise Officers as Authorized Officers with power to enter into tobacco or alcohol products manufacturing establishments, detain vehicles transporting such products and cease such products.

Prohibition of sale of tobacco or alcohol products to minors

Section 31 prohibits sale of tobacco and alcohol products to minors under 18 years of age with a penalty of Rs. 4,000 fine and /or 1 year imprisonment. This section aims to prevent schoolchildren having access to tobacco and alcohol products. The banning of automatic vending machines is another provision in the same direction.

Tobacco products should carry in legible print a health warning in their packages.

Prohibition of advertisements

Not so long ago tobacco and alcohol industries were the leading advertisers and sponsors of different kind of sports and games. Section 25 of the Act bans tobacco and alcohol advertisements, a contravention of which could attract Rs. 2 Million fines. Article 36 prohibits sponsoring events with a punishment of 2 years imprisonment / or Rs. 50,000 fine.

Smoking in public

Smoking in enclosed public places is prohibited with the exception where the enclosed public place could accommodate more than 30 persons and separate smoking section had been established. Enclosed public places are enumerated in Section 5 of the Act to include Government buildings, schools, places of worship and supermarkets. The punishment for smoking in public places is 1 year imprisonment and/or fine of Rs. 2,000.

Suspension of driving licence

The provision in Section 151 of Motor Traffic Act which prohibits drunk driving is reinforced by Tobacco and Alcohol Act by vesting power to the Magistrate to suspend the licences of drunk drivers charged pending trial or upon conviction. The police vigilance has greatly reduced the incidence of drunk driving recently. This provision would enable the law enforcement authorities to remove the driving licence from offending drivers.

Sri Lanka, even though little belated, is one of the many countries who has adopted Tobacco and Alcohol Control Laws. United Kingdom, Ireland, several States in USA and Canada are few countries who have adopted similar laws. The massive smoking nation China is contemplating legislation. The WHO is scheduled to adopt an International Convention to coincide with the International No Tobacco Day which falls of 31st of May every year.

The Legal Aid Commission would organise a national school essay competition to create awareness on the new law.

-S.S. Wijeratne,
Legal Aid Commission
Chairman

Questions and answers

Ratification of the international human rights convention on the rights of disabled people

Question: We understand that the Government has ratified the International Human Rights Convention on the rights of disabled people. We would like to know the advantages of ratifying this convention.

M. Mohamed,

Colombo 6.

Answer: A Human Rights Convention is a piece of international law, which sets out the duty of countries to protect human rights. It is legally binding on any country that agrees to commit to it.

The UN Convention on Disability Rights will provide a recognised international standard for disabled people’s human rights in one document.

This will help the international community to put pressure on countries whose work on disability rights could be improved. Countries like Sri Lanka that formally sign up to the convention will also have to report regularly to the UN about the steps they are taking to protect and promote disabled people’s rights.

Disabled Law No. 28 of 1996 and the Gazette Notification and the draft bill of Disability Rights and the national policies will help promote and safeguard the rights of the disabled people.

This convention includes the following:

Article 5 - Equality and non-discrimination

Article 6 - Women and disabilities

Article 7 - Children with disabilities

Article 8 - Awareness-raising

Article 9 - Accessibility

Article 10 - Right to life

Article 12 - Equal recognition before the law

Article 13 - Access to justice

Article 14 - Liberty and security of the person

Article 15 - Freedom of torture or cruel, inhuman or degrading treatment or punishment

Article 16 - Freedom of exploitation, violence and abuse

Article 17 - Protecting the integrity of the person

Article 18 - Liberty of movement and nationality

Article 19 - Living independently and being included in the community

Article 20 - Personal mobility

Article 21 - Freedom of expression and opinion and access to information

Article 22 - Respect for privacy

Article 23 - Respect for home and family

Article 24 - Education

Article 25 - Health

Article 26 - Habilitation and rehabilitation

Article 27 - Work and employment

Article 28 - Adequate standard of living and social protection

Article 29 - Participation in political and public life

Article 30 - Participation in cultural life, recreation, leisure and sports

Article 33 - National implementation and monitoring etc.

The Legal Aid Commission Disabled Unit wish to create awareness among the general public regarding this Convention.

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Numerous EPF forms

Question: When we apply for EPF benefits we are requested to complete several forms - e.g. Form A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P and Q. Kindly let me know what these forms are.

B. Ratnasinghe,
Kandy.

Answer:

Form A - Employer’s Record Card

Form B - Certificate of Membership

Form C - Employer’s EPF Registration Form

Form D - Employer’s record regarding employees

Form E - Notice to be given by the employee that he is leaving employment

Form F - Notice to be given by the Employer that the employee has ceased to be in employment

Form G - Form to be filled by the employee that he wishes to transfer his old account to the new account.

Form H - Nomination Form.

Form I - Revocation of Nomination

Form J - Nomination Form

Form K - EPF benefit payable form

Form L - Claim Form for benefits under Section 26 of the Act by a nominee, heir, administrator/executor

Form M - Medical certificate

Form N - Statement of contributions transferred from any provident fund or contributory pension scheme to the Employees Provident Fund.

Form O - Request Form for higher contribution rate to the EPF.

Form P - Notice under Section 38.

Form Q - Application Form for refund of contributions made to the fund in error.

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National Centre for Victims of Crime to help rape victims

Question: One of my neighbour’s daughter has been raped. Since this family is very poor they cannot afford to bear the cost of legal expenses to go to courts, etc. However, the police have filed a case against the suspect and the case is pending before court. We do not know as to the present position of the case. Can the Legal Aid Commission help in the matter?

S. Anuradha,
Akuressa.

Answer: Yes. The Legal Aid Commission established in 1978 by Law No. 27 of 1978 is the only Statutory Body entrusted with the responsibility to provide access to justice for the poor people in Sri Lanka. Kindly call over at our Legal Aid Commission Head Office at No. 129, Hulftsdorp Street, Colombo where free legal advice could be given to deserving litigants. The Legal Aid Commission also has a section called the National Centre for Victims of Crime at No. 211, Superior Courts Complex, Hulftsdorp Street, Colombo 12 who will guide you and give you all assistance in the matter.

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Differently abled pensioner ill-treated by wife

Question: I am a differently abled pensioner. My wife is now ill-treating me. She scolds me and also assaults me. I cannot go to the police station as I cannot walk. Please advice me as to where I should go to for help.

A. Singho,
Lakpandura.

Answer: Under the Domestic Violence Act No. 34 of 2005, you can seek relief to get a protection order against your wife. There are three ways of getting a protection order - i.e. on your own by making an application to the Magistrate’s Court or via making a complaint to the police station or through a lawyer. According to your question you have not taken any action as you are disabled. So please call 118 or 119 and make a complaint to the police. On your complaint, the police will visit your place of residence and they will take suitable action to protect and safeguard you. Otherwise, you can call the Legal Aid Commission Disabled Unit at the Head Office or any of its Legal Aid Centres islandwide.

The Disabled Act No. 28 of 1996 and Disabled Laws and Regulations also have provisions to safeguard disabled persons like you.

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EPF/ETF payments for part time employees

Question: Please advise regarding the legal point on the following issue:

A person who is employed on a part time basis for over ten years and without a break in service - does such a person be entitled for benefits such as EPF/ETF, etc’?

T. F. S. Dole,
Battaramulla.

Answer: The answer is ‘yes’ (tutors are not entitled to EPF/ETF benefits by their contracts of employment). If EPF/ETF payments are not made, you can make a complaint to the Labour Office where your place of employment is situated.

Criminal proceedings: Arrest

Question: On what grounds can a person be arrested. Kindly let me know through your valuable Daily News Legal Aid Page.

M. Aloysius,
Kohuwela.

Answer: A person may be arrested on the following grounds:

(a) he is suspected of having committed a criminal offence;

(b) he has failed to appear in court in response to a summons;

(d) he has escaped or attempted to escape from lawful custody;

(e) he has obstructed a peace officer (a peace officer includes a police officer and a grama seva niladhari who has been authorised in writing to carry out police functions) in the execution of his duty;

(f) he is reasonably suspected of being a deserter from the armed forces;

(g) he is found trying to conceal his presence in circumstances which give reason to believe that he is about to commit a cognizable offence.

(h) he is found to have house-breaking implements in his possession without lawful excuse;

(i) he is reasonably suspected of having committed an act abroad which would be an offence in Sri Lanka and for which he could be detained and extradited.

Further an arrested person should be told the reason for his arrest. If the arrest is by warrant he should be shown the warrant as soon as possible. A warrant must be in writing signed by a judge.

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Importance of Gazette Notification with regard to differently abled persons

Question: I am a differently abled person and I understand that the year 2007 is an accessibility year for disabled persons and under the Protection of the Rights of Persons with Disabilities Act No. 28 of 1996 the Government has published Regulations by Gazette Notification relating to disabled persons and I would like to know those Regulations and also please explain what is meant by ‘access’, ‘common services’, ‘public buildings’ and ‘public places’.

G. Gunasekera,
Kottawa.

Answer: Under the Protection of the Rights of Persons with Disabilities Act No. 28 of 1996, the Government has published Regulations by Gazette Extraordinary No. 1, 467/15 - Tuesday, October 2006 as follows:

1. These regulations may be cited as the Disabled Persons (Accessibility) Regulations No. 1 of 2006.

2. 1. The provisions of these Regulations shall be applicable to all public buildings, public places and to places where common services are available, to which buildings, places and services persons with disabilities have access.

Provided that all existing public buildings, public places and places where common services are available, shall within a period of three years from the coming into operation of these regulations, be made accessible to persons with disabilities in compliance with the provisions of these regulations.

2. These regulations shall not apply to temporary buildings or sheds of contractors which are a part of any public buildings, public place or place, where common services are available.

3.1 No person shall construct any public building or structure in any public place or re-construct or renovate any public building or structure in any public place unless any plan which relates to such building or structure conforms.

Under the Gazette Notification ‘access’ means the ability of a person to enter into, approach, pass to and from and have use of any public building or public place, and the facilities and services provided therein, or any place where common services are available, without the assistance of any other person;

‘common services’ means -

(a) Public transportation services and facilities connected to such public transportation services and shall include passenger buses, passenger trains, bus stops, depots and terminals, railway stations, aircrafts, airport terminal buildings and airports and water transport.

(b) Public communication services and facilities connected to such communication services and shall include post offices, communication centres and telephone booths.

‘public buildings’ means a building used for -

(i) residential purposes, including staff residences located within multiple dwellings and high rise residential units and tenements;

(ii) for commercial purposes, including office buildings, hotels, motels, inns, guest houses and other public lodgings, shopping centres, super markets, restaurants, general wholesale and retail stores and car parks;

(iii) industrial purposes, including factories and workshops and warehouses;

(iv) community social and educational purposes including educational institutions, schools, hospitals, nursing homes, medical centre dispensaries, home for elderly persons, temples, churches and mosques and other religious places, police stations, courthouses, assembly halls, village halls, community centres, auditoriums, convention halls, libraries, museums, exhibition halls, public toilets and such other buildings; and

(v) recreational purposes, including cinema halls, theatres, concert halls, opera houses, art galleries, stadiums, sport complexes, sports venues and other places of recreation.

‘public places’ includes pedestrian crossings, walkways, pavements, roads, streets, off-street and on street parking spaces, outdoor staircases, steps, lifts, traffic signals and sign parks, botanical gardens, zoological gardens and places of tourist interest and attraction.

National essay competition 2007:

“Can the use of harmful drugs be minimised by legislation?”

The Legal Aid Commission with its islandwide outreach have decided to support the national effort to reduce indiscriminate access to tobacco and alcohol drugs specially by the minors.

The National Authority on Tobacco and Alcohol Act No. 27 of 2006 (ATA) is now in force. A summary of the provisions is contained in the introduction to this page.

ATA is a humanitarian protection law that should be understood by every citizen of this country and eventually become part of our social ethics. Internationally, many countries have adopted similar laws.

In order to bring the message to the young, the LAC has changed this year’s theme of school essay competition from “Law and Development” to “Can the use of harmful drugs be minimised by legislation?” The LAC and the Ministry of Education would be conducting the essay competition in Sinhala, Tamil and English targeting the Advanced Level students.

This year’s essay competition is sponsored by Sri Lanka Telecom. The first prize winner will receive Rs. 25,000 in cash and books. Similarly, essayist who come second will receive Rs. 20,000 and the third place winner Rs. 15,000. Ten best essays from each language will receive Rs. 5,000 each.

The essays will be graded by a panel of educationists from the Ministry of Education and the final grading would be given by a panel of Judges presided over by a Judge of the Supreme Court or the Court of Appeal.

The essays should contain between 2000 to 2500 words and should reach the Legal Aid Commission through the School Principal or directly addressed to:- The Chairman, Legal Aid Commission, 129, Hulftsdorp Street, Colombo 12, Email:[email protected]

Quotes from Judgement:

Directive Principles of State Policy (Chapter VI of the Constitution)

“The limitation in Article 29 which states that the provisions of Chapter VI are not justifiable would not in my view be a bar against the use of these provisions to interpret other provisions of the Constitution.

Article 27 of Chapter VI lays down that the ‘Directive Principles of State Policy’ contained therein shall guide “Parliament, the President and the Cabinet of Ministers in the enactment of ‘laws and the governance of Sri Lanka for the establishment of a just and free society.”

Hence the restriction added at the end in Article 29 should not detract from the noble aspirations and objectives contained in the Directive Principles of State Policy, lest they become as illusive as a mirage in the desert. As regards education, the policy objective is stated in Section 27(2)(h) as follows:

“The state is pledged to establish in Sri Lanka a democratic socialist society, the objective of which include -

(h) the complete eradication of illiteracy and the assurance to all persons of the right to universal and equal access to education at all levels.”

Supreme Court

Sarath N. Silva, Chief Justice

N.E. Dissanayake J

A.M. Somawansa J

Decided on 29th March 2007

S.C.(FR) 10/07 to 13/07