Legal Aid Commission

Introduction:

Overhauling law making process

Many modern societies which changed from colonial rule, dictatorship or centralised majoritarian rule are struggling to develop rights based governance. Sri Lanka is one such country.

Sri Lanka attained independence only sixty years ago mostly helped by the independence struggle in neighbouring India. The non-violent political movement unleashed by Gandhi paved the way for the emancipation of neighbouring smaller countries.

The relevance of India in our struggle for liberty is demonstrated by the Marxian Bolshevik Leftist party led by late Dr. Colvin R. de Silva which had the epithet added BLP of India and Sri Lanka.

Sri Lanka which received Universal Adult Franchise in 1931 is one of the earliest colonies to practice democracy. The non-partisan character of the State Council with its Committee system still remains a relevant mode of national governance.

The Committee System created and encouraged multiple leadership and legislation mostly issues based with input from talented State Councillor to advance labour rights legislation, access to education and access to health.

They were rights based concepts conceived by giants like Dr. C. W. W. Kannangara, Kandy’s George R. de Silva and S. W. R. D. Bandaranaike.

The introduction of party politics and the parliamentary majoritarian system converted issue based legislation procedure to a party based law making system.

The party in power proposed legislation mostly to sustain itself in power and the opposition parties misconceived their role as to oppose and disrupt all what the Government proposed. Since 1948, for 60 years this system of self destruct pervaded our country.

The legislature moved away from pluralism, respect for minority views and human rights based legislation. What our past leaders thought was correct for the participant majorities have left permanent ruptures in our multi cultural polity.

In the present context if a civil society organisation makes even the slightest attempt to promote rights based good governance, CSOs come to be painted in one brush as anti-national donor directed elements. This is indeed an extremely sad trend in a multi-cultural society.

The law making process in Sri Lanka is the most opaque. The supposed beneficiaries of the laws enacted by Parliament are reduced to mere spectators. There are no pre-legislation white papers or green papers setting out the reasons behind proposed laws.

The law enactment process in this country is largely a secret process to be kept out of the public domain until it becomes a fait accompli.

Our Parliament does not have a new legislation Committee where the people can make proposals for new legislation for consideration. Even the Parliamentary Opposition has no role in initiating legislation even if they can muster a majority to support a bill.

S. S. Wijeratne email: [email protected]

Questions and Answers

Re: Casual Leave/ Annual Leave

Question: I am employed on a fixed term contract for a period of nine months commencing from 01st January 2008 to 31st September 2008.

Please advise me whether I qualify for casual leave and annual leave, if so how many days?

S. D. Perera, Matugama

Answer: Yes - you qualify for casual as well as annual leave.

Casual Leave : Since your contract is for nine months, you will be entitled to one day’s leave for every two months for private business, ill health or other reasonable cause.

In case you have not utilized the casual leave, there is no provision under the Shop & Office Employees Act for you to encash the unutilized leave on the cessation of your fixed term contract.

Annual Leave : Since your contract is a fixed term contract for 9 months, you will be entitled to one day for every month upto September 2008. This will be at the termination of the contract. You could encash the leave earned by you.

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Attornment

Question: My father was a landlord of a property situated in Nugegoda. He had rented out the said premises to a family for the last 25 years. The monthly rental was given to my father. Last month my father passed away. My father has gifted this property to me subject to his life interest. Please advise me.

Sarath Kumar, Kotikawatte.

Answer: According to your facts, upon the death of your father, you have become the owner of the said property.

You have stated that your father has rented out the said property to a party and they were your father’s tenants. After your father’s death, you have become the owner of the said property. However, you are the new landlord of your tenant.

Accordingly, you have to send the notice of attornment. The word ‘attornment’ has been judicially defined as the act of a tenant putting one person in place of another as his landlord.

Also please note the death of the landlord does not terminate the contract of monthly tenancy, his rights and obligations pass then to his heirs. In such case, the heirs (yourself) are not entitled to seek ejectment of the tenant without prior notice to quit.

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How to check latest position in a Court case

Question: How can a person verify the latest position or in other words, the decision of the last hearing so far made in a Court case?

Mrs. C. Tennekoon, Colombo 3.

Answer: The Court expects the presence of the parties when the case is coming up for hearing. Therefore, always try your best to be present in Court when the case is called.

You can go to the relevant branch of the Registry and by giving your case number, you can trace your case record. If your case record is not in the Registry, please inform the Registrar of the relevant Court who will help you to find your case record. From the case record you can verify the latest position of the case.

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Is employee entitled to any payment during period of notice?

Questions: It is provided in the contract of employment issued to the employee that he is required to give two months notice of resignation.

The employee concerned as provided in the contract gave two months notice of resignation and in the same letter states that he be permitted to utilize the unavailed of annual leave of 10 days during the period of notice immediately after giving the notice of resignation.

After utilising the unutilized leave of 10 days during the period of notice, he did not report for work and simply kept away.

Please advise whether he is entitled to any payment for the balance period during the period of notice?

Joe Fernandez, Boralesgamuwa.

Answer: In instances where notice of resignation is given as provided in the contract and by agreement the annual leave on termination is utilized by the employee immediately after the notice of resignation is given, the Employer need not make any payment as wages if the employee keeps away during the remaining period of notice. The same principle will apply to your question as well.

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Annual leave

Question: I am the Human Resources Manager of a Private Company doing business in Kandy.

The Accountant of the Company recently tendered his resignation with immediate effect and in his letter of resignation he stated that he was unable to give one month’s notice of resignation as provided in his contract as he has to assume duties with immediate effect in his new place of employment.

He has 14 days of unutilized annual leave and he has asked that he be paid for the unutilized annual leave. Since he has not given notice as provided in the contract and deprived the Company from allowing him to take the unutilized annual leave during the period of notice, should the Company pay him for the unutilized annual leave.

A. V. Sirisena, Mawanella.

Answer: Since he has tendered his resignation without giving notice in breach of his contract, it is open to the Company not to pay for the unutilized leave on the ground that he has put it beyond the Company’s power to allow him to utilize the unavailed of annual leave during the notice period that he was required to give. This position of the employer in other cases have been accepted by the Labour Department.

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Working on Poya holidays

Question: I have set up an office recently on specialized Tax Law to advise clients on tax matters.

Can you please advise me the law with regard to employees working on a Poya holiday?

M. Ranjith, Pannipitiya.

Answer: An employee is entitled to a holiday on a Full Moon Poya day. But if he or she is employed on a Full Moon Poya Day, he/she is entitled to be paid not less than 1 1/2 times the normal daily wage. If a Full Moon Poya Day falls on a Statutory Holiday or on a weekly full holiday or half holiday, an alternative holiday need not be granted in lieu.

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Appeal against Labour Tribunal order

Question: I made an application to the Labour Tribunal at Chilaw and the order was delivered recently. Since I am not satisfied with the order, can I appeal to the Court of Appeal against the order of the Labour Tribunal?

M. Mohamed, Chilaw.

Answer: I you wish to appeal against the Order of the Labour Tribunal, Chilaw, you should do so within 30 days from the date of the Order given by the Labour Tribunal.

Further the 13th Amendment to the Constitution, the High Court of Chilaw is vested with jurisdiction to hear appeals from the Labour Tribunal of Chilaw and also the High Court of the area can even hear appeals from the orders of the Primary Court and Magistrate’s Court.

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How to obtain refund of benefits of deceased member?

Question: How can I obtain a refund of benefits of a deceased member? Please advise me through your valuable Daily News Legal Aid Page.

Gerard Fernando, Kadawatha

Answer: If the deceased member has made a valid nomination, the nominee has a right for the benefits. If the deceased member has not made a valid nomination, under the law of inheritance, the legal heirs could request for refund of benefits.

Each of heirs claiming refund of benefits of the deceased member should perfect Form “L” certified by the employer under whom the deceased was last employed together with the under mentioned documents with a request to the Commissioner of Labour.

1. The Death Certificate of the deceased member.

2. If the wife is applying, the Marriage Certificate.

3. Birth Certificates of Children.

4. Birth Certificate of the deceased member when parents apply.

5. In case of minors, details of the guardian in L3 Form (A letter addressed to Commissioner of Labour through the Grama Sevaka and District Secretary certifying the name of the guardian, minor children’s names and their ages).

6. Personal data details of the deceased member in Form L2 certified by the Grama Sevaka and the District Secretary.

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How is a Last Will revoked?

Question: I have executed a Last Will in favour of my son. Please let me know how a Last Will could be revoked?

M, Godfrey, Colombo 4

Answer: A Last Will or any part of it may be revoked only in any one of the following ways:-

(i) By marriage of the testator or testatrix.

(ii) By making another Last Will.

(iii) By a writing executed as a Will is executed declaring the intention to revoke.

(iv) By burning, tearing or otherwise destroying the Last Will by the testator or testatrix, or by some person in his or her presence, and by his or her direction, with the intention of revoking the same.

If a Will has been made by a testator and is shown to have been in his/her possession and is not forthcoming at his death, the Will is presumed to have been destroyed with the intention of revoking.

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Refund of benefits on grounds of marriage

Question: I am hoping to get married and leave employment. Kindly let me know whether I will be eligible to receive a refund of benefits? Also please let me know the procedure to claim same.

Your early reply will be greatly appreciated.

M. Rosemary, Colombo 8.

Answer: Women employees who cease employment, under one of the two grounds given below, will become eligible to receive refund of benefits.

i. If marriage had been registered before the expiry of three (3) months from the date of cessation of employment, or

ii. Cessation of employment before expiry of 5 years after registration of marriage.

Female employees under these two categories become eligible for refund of benefits. They should duly perfect Part 1 of the “K” Form and Part II of the Form should be duly certified by the Employer and forward with the following documents:-

(a) A certified copy of the Marriage Certificate issued by the Registrar of Marriage who registered the marriage or Marriage Certificate issued by the Additional District Registrar.

(b) A certificate issued by the Grama Sevaka countersigned by the District Secretary to the effect that the marriage did take place.

“B” Certificate.

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How to recover monies from dealers

Question: I am a self employed small trade businessman and carrying on delivery business.

In my business transactions, I have received some cheques from my dealers and which were dishonoured by the Banks. Now I am in a financial difficulty and need to recover the monies due to me from the said dealers. Please advise me.

S. Srinath, Kurunegala.

Answer: According to our law, any person who knowingly draws a cheque which is dishonoured by a bank for want of funds shall be guilty of an offence under Section 25 (i) of Debt Recovery (Special Provisions) Act No. 20 and shall on conviction by a Magistrate after summary trial be liable to be punished with imprisonment. This is also an offence which amounts to cheating under Section 398 read with Section 403 of the Penal Code.

If you want to recover the monies due to you from the dealers, you can institute civil actions against them in the relevant District Courts by way of summary procedure under Section 703 of Civil Procedure Code or in regular procedure.

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Re; Jurisdiction of court in land disputes

Question: If there is a land dispute between two parties, according to the provisions of the Civil Procedure, Code, how do you find out which District Court has jurisdiction to hear and determine the case?

M. Sampath, Kalubowila

Answer: The District Court of the area in which the land is situated will have the jurisdiction to determine the case. Section 9 of the Civil Procedure Code states that if the land is situated in two judicial zones, action can be filed in any one of the District Court of the judicial zones.