Introduction: Judicial power of the people

Under 1978 Constitution, all power whether Executive, Legislative or Judicial is vested with the people of the Republic. The Executive power of the people is exercised by the Executive President elected by the people and the legislative power of the people is exercised by Parliament elected by the people. The judicial power of the people is exercised by the Parliament through institutions established by Law.

This unique enshrined in the 1978 Constitution means that courts and judiciary are not independent sources of power other than to exercise those legislated by the Parliament.

The future Constitutional Drafters should take a new look at those provisions as independence of the judiciary should be constitutionally enshrined. Parliamentary exercise of judicial power specially to remove superior judges with simple majority (Article 107 of the 1978 Constitution) needs revision.

Historically, we have the case of late Chief Justice Neville Samarakoon who was subjected to the impeachment process for making a statement about the Executive President at a prize giving at the Sinnadurai Tutory.

Judicial power of the people when exercised by Parliament through institutions created by law will diminish the concept of Separation of Powers. Constitutional theorists argue that apex judicial power should be exercisable without fear and favour of the other two institutions exercising people's legislative power, Parliament or Executive power, the President.

In September 1984, 1/3rd of the Parliamentarians signed a resolution requesting an address of Parliament to remove the then Chief Justice N. D. M. Samarakoon for having delivered a speech containing statements of "political issues and controversial matters". The resolution raised many questions.

The Parliament not finding a mechanism to conduct an inquiry whether there was "incapacity or misbehaviour" by the concerned Judge, an amendment of dubious validity was made to Standing Order 78 by adding a new section as 78A providing a procedure.

The Select Committee constituted on the basis of respective political party strength in Parliament should have had the benefit of a judicial finding for which no provisions had been made. Any new Constitution should include provisions to safeguard the independence and dignity of the apex judiciary which head the "superior courts which protect, vindicate and enforce the rights of the people."

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Questions and Answers

Law to expedite hearing and determination of proceedings before Labour Tribunal Question: I am made to understand that there is Law that was introduced in the year 2003 to expedite the hearing and determination of proceedings before a Labour Tribunal.

Could you kindly let me know the Law that was introduced?

- M. Denzil, Mattegoda.

Answer: The Law that was introduced in 2003 is called the "Industrial Disputes (Hearing and Determination of Proceedings) (Special Provisions) Act No. 13 of 2003".

This Act came into operation in March 2003. The main purpose of this Law was to ensure expeditious disposal of Applications and References made under the Industrial Disputes Act and the Termination of Employment of Workmen (Special Provisions) Act in order that parties to such Applications and References may be able to obtain decisions in respect of the same within a short period of time.

In the case of Labour Tribunals, it shall be the duty of a Labour Tribunal to whom an application is made, to make such inquiries, hear all evidence as the Tribunal mat consider necessary and thereafter make order not later than 04 months from the date of making of such application.

An appeal preferred or an application in revision made under Section 31 (D) of the Industrial Disputes Act against any order of a Labour Tribunal, shall be heard and decided within 04 months of the date of which such appeal or application was field.

We would however wish to state that even though there is a time limit given in the Act for the conclusion of the proceedings before a Labour Tribunal or the Appellate Court, the Labour Tribunals and the Appellate Courts find it difficult to comply with the Law.

Payment of allowance under "budgetary allowance of Workers Act No. 36 of 2005"

Question: The Assistant Commissioner of Labour, Colombo East has given Order to a Private Sector Employer to pay one of its ex-employees, the arrears of the allowance approved by the Government to Mercantile Sector Employees with effect from September 2005. By this Order it is clearly understood that all the other employees of this Employer have not been paid this allowance. Please explain and advise -

* As to why this Asst. Commissioner of Labour cannot give orders to this particular Employer to extend this payment to other employees as well from September 2005.

* What steps could be taken by the other employees who did not receive this allowance from September 2005.

* Name of the Bill is "Budgetary Relief Allowance of Workers Act No. 36 of 2005".

- "An employee", from Colombo

Answer: The Commissioner of Labour does not make any order. The Law that came into operation from 1.8.2005 is the "Budgetary Relief Allowance of Workers Act No. 36 of 2005". It did not come into operation from September 2005.

The Commissioner of Labour does not make any order. It is a requirement under the Law to pay Rs. 1,000 as Budgetary Allowance from 1.8.2005.

If any increase in wages is given in the month of October 2005 or thereafter he shall be entitled to an allowance equivalent to the difference between Rs. 1,000 and the amount of such wage increase. The increase of Rs. 1,000 is taken into consideration for EPF, ETF, overtime, gratuity and maternity benefits.

Since it is a requirement under the Law and if any Employer fails to pay such allowance to the employees, the employees should lodge a complaint with the Commissioner of Labour or with the Assistant Commissioner of Labour of the District in which the Employer's place of business is situated. If the Employer defaults payment the Commissioner of Labour will prosecute such Employer before the Magistrate's Court.

Rights and obligations of condominium owners

Question: I own an apartment in Colombo and would like to know the rights and obligations of Condominium Owners under the Condominium Act No. 39 of 2003.

- F. Marcus, Colombo

Answer: Condominium living requires adherence to By-laws and above all, recognition of the right of a fellow condominium dweller for peaceful and quiet enjoyment of his or her condominium property.

Since condominium dwellers share walls, floors, entrances, ceilings, corridors, parking areas and other common areas, noise and smoke especially can be a nuisance to fellow condominium dwellers.

A condominium owner should respect the need of the others living in the same building for peace and quiet just as much as he or she needs a quiet and peaceful environment.

Inconsiderate neighbour will make condominium living an unpleasant experience unless the Management Corporation formulates rules and enforces them without fear and favour to ensure a harmonious and pleasant environment.

A condominium dweller must however, appreciate that a certain degree of noise cannot be avoided, especially in an environment where there are children. A Condominium Owner is prohibited from -

a. using his/her unit for any purpose which may be injurious to the reputation of the building;

b. use as fuel any substances or material which may give rise to smoke or fumes or obnoxious smells;

c. make any alterations to his condominiums parcel contrary to the approved building plan of the Condominium Property or Semi Condominium Property.

d. throw or allow to fall any refuse or rubbish of any description on the common elements or any part thereof except in refuse bins maintained by the owner or in refuse chutes provided in the building; or

e. keep any animal on his/her unit or the common elements which may cause annoyance or any other owner.

A Condominium Owner should observe and comply with the following by-Laws:-

(a) permit the corporation and its agents at all reasonable times and reasonable notice being given (except in case of emergency when no notice is required) to enter his/her unit for the purpose of -

(i) inspecting the unit;

(ii) maintaining, repairing or renewing sewers, pipes, wires, cables and ducts used or capable of being used in connection with the enjoyment of any other unit or the common elements;

(iii) maintaining, repairing or renewing the common elements; or

(iv) executing any work or doing any act reasonably necessary for or in connection with the performance of its duties or exercise of its powers the enforcement of these by-laws or other by-laws effecting the building;

(b) forthwith carry out all work including removal of all unauthorized constructions ordered by the Government.

(c) Repair and maintain his/her unit and keep it in a state of good repair reasonable wear and tear, damage by fire, storm, tempest or act of God excepted;

(d) Use and enjoy the common elements in such a manner as not to interfere unreasonably with the use and enjoyment thereof by other owners or their families or visitors;

(e) Not cause damage in any manner to the common elements and not make any structural alterations to such common elements without the written consent of the owners of all other units. Provided that where such alterations are being carried out by an occupier of a unit, he/she shall first obtain the approval of the owner of such unit.

(f) Not use his/her unit or permit it to be used in such a manner or for such a purpose as to cause a nuisance or danger to any other owner or the family of such owner;

(g) Not use his/her unit for any purpose contrary to the terms of user of the unit shown in the plan approved by the authority for the time being responsible for approving such plan; and

(h) Notify the corporation forthwith of any change in the ownership or his/her unit or of any other dealing with his unit of which he/she is aware.

(i) Pay his/her contribution to the Management Fund of the corporation.

(j) Pay all monthly charges for consumption or services such as water services, electricity and other utilities provided through the corporation including service installation charges and re-connection charges in the event of disconnection of services such as water services, electricity and other utilities provided through the corporation by National Water Supply and Drainage Board, Ceylon Electricity Board, Local Authority any other authority or licensee.

Branches of Dept. of Immigration and Emigration

Question: Please be kind enough to let me know if there are any branches of the Department of Immigration and Emigration outside Colombo from where I could get a One Day Service for my passport.

- M. Anurudda, Kegalle

Answer: There are branches of the Department of Immigration and Emigration in Matara, Kandy and Anuradhapura. However One Day Service for passport and visa is available only in Colombo. Other normal services such as renewal of passport, etc could be done in other branches. The relevant addresses are given below:-

Department of Immigration and Emigration
41. Ananda Rajakaruna Mawatha, Colombo 10, Sri Lanka
Phone: 94-11-5329000 Hunting Line
Fax: 94-11-2674621
E-Mail: [email protected]
WebSite: ww.immigration.gov.lk

Branches:

Matara: 9, Sri Vijaya Building, Rahula Road, Matara, Sri Lanka
Phone: 94-41-5412212
Fax: 94-41-2222846

Kandy: 42/3, 42/5, Sangaraja Mawatha, Kandy, Sri Lanka
Phone: 94-81-5624576
Fax: 94-81-2201446

Anuradhapura: 391/1, Harischandra Mawatha, Anuradhapura, Sri Lanka
Phone: 94-25-5676343
Fax: 94-25-2235122

Stoppage of salary without any notice

Question: I am employed in a foreign funded project in Galle. As at present I am on my maternity leave. My employer has suddenly stopped my salary without any notice. I have not been given any show cause letter or suspended from my employment.

Please advise me as to what step I should take to see that my salary is paid without delay.

- M. Radhika, Galle

Answer: Your employer has no right to stop your salary while you are on your maternity leave. You should lodge a complaint with the Assistant Commissioner of Labour, Galle without delay. The Assistant Commissioner of Labour, Galle will summon your employer and after inquiry direct that your salary be paid immediately.

What is percentage of contribution?

Question: I commenced employment in a company in Kalutara on 10.01.1978 where there were 130 employees. The number of employees increased to 160 in January 1980.

The company was running at a loss and it closed four sections in March 2000. From March 2006 there are only ten employees in this Company including myself. Please let me know the liability of this company for contribution to ETF.

What is the percentage of contribution? Is there any change in rate and if so what is the rate and from when?

- K. Seeman, Kalutara

Answer: This Fund was established by the Employees' Trust Fund Act No. 46 of 1980. Liability to contribute to the Fund commenced as follows:

i. From 01.03.1981 to Employers employing not less than 150 employees.

ii. From 01.09.1981 to Employers employing 50 employees or more.

iii. From 01.01.1982 to Employers employing 01 employee or more.

Your company is liable to contribute from 01.03.1981 onwards. The rate of contribution is 3% by the employer. No contribution is made by the employee. The rate of contribution remains unchanged.

What are the contents of Annual Report

Question: I am working in an esteemed Private Company. Our company intends publishing its 1st Annual Report. please let me know as to what should be the contents of the Annual Report?

- J. Ratnam, Nugegoda

Answer: The contents of the Annual Reports should be -

i. The nature of the business of the Company or any of its subsidiaries; or

ii. The classes of business in which the Company has an interest, whether as a Shareholder of another Company or otherwise;

b. Financial statements for the accounting period completed and signed in accordance with Section 151, and any group financial statements for the accounting period completed and signed.

c. Where an Auditor has been appointed by the Company, include that Auditor's report on the financial statement and any group financial statements;

d. Any change in accounting policies made during the accounting period;

e. Particulars of entries in the interests Register made during the accounting period;

f. The remuneration and other benefits of Directors during the accounting period

g. The total amount of donations made by the Company during the accounting period.

h. The names of the persons holding office as Directors of the Company as at the end of the accounting period and the names of any persons who ceased to hold office as Directors of the Company during the accounting period;

i. The amounts payable by the Company to the person or firm holding office as Auditor of the Company as audit fees and as a separate item, fees payable by the Company for other services provided by that person or firm;

j. The particulars of any relationship (other than that of Auditor) which the Auditor has with or any interests which the Auditor has in the Company or any of its Subsidiaries.