Features | Online edition of Daily News

Legal Aid Commission

Compiled by Kalani A. Medagoda, A.A.L

Introduction - Constitutional awareness

The Constitution is the basic Law of the country. All branches of the State, the President (Executive), Legislature (Parliament) and the Judiciary are governed by the provisions of the Constitution in the performance of the respective duties and their inter relationships. No man or woman can act above the Constitution without attracting legal or political repercussions.

Constitutional awareness is a basic requirement in any democratic society. Unfortunately, the Constitution making process in Sri Lanka was never participatory in character. Pundit Nehru’s dictum Constitution should reflect the views of the people were never heeded.

In India, a pluralist Constituent Assembly including civil society representatives deliberated for four years from 1946 to 1950 to accommodate the aspirations of a plural society in their Constitution.

After 54 years, India is still governed by the same Constitution with periodic amendments and judicial interpretations to accommodate the needs to modern India.

We enacted three Constitutions ignoring the participatory process. With Independence in 1948, our political leaders readily accepted the Soulbury Constitution drafted by the colonial British as the Constitution of independent Ceylon. We never demanded to draft our own Constitution with the people’s participation.

When the Privy Council determined that certain provisions of the Constitution could not be amended by the Sri Lankan Parliament, the fate of the Constitution gifted by the British was doomed.

Thereafter, the situation was presumably corrected by the two majoritarian Republican Constitutions promulgated in 1972 and 1978.

Once again there was no broad public participation or even a referendum. In 1972, the United Front Government convened a Constituent Assembly at the New Town Hall and adopted the first Republican Constitution drafted by an elite group of lawyers led by the late Dr. Colvin R. De Silva. Tamil representatives did not participate in the final outcome.

In 1978, the United National Party Government which received 5/6th majority in Parliament using the existing constitutional amendment process adopted the present constitution.

Thus was established the authoritarian power of the Executive President. Again, an elite cabal of lawyers led by the President’s own brother produced a constitutional fait accompli.

There was no natural debate or even the democratic camouflage of a public referendum.

A referendum was subsequently held to extend the life of Parliament and retain the 5/6th majority for a further six years.

During this period 16 Constitutional Amendments, mostly ad hominum, were passed. One of these amendments drove the Tamil Opposition out of Parliament and paved the way for Tamil militancy. In general view, the only positive element in the 1978 Constitution was that it made Fundamental Rights justiciable.

Among the 16 Amendments to the Constitution between 1978 and 1989 was the 13th Amendment which provided that Sinhala and Tamil to be official languages and English as the link language.

The 13th Amendment along with the Provincial Councils Act provided for the devolution of power to the provinces. The 13th Amendment went before a 9 Bench Supreme Court Bench resulting in a sharply divided Bench.

The 13th Amendment too was not passed unanimously but only with a 2/3rd majority.

The only Constitutional provision which was passed unanimously in Sri Lanka was the 17th Amendment ensuring good governance.

Questions and Answers

Question: Please let me know the meaning of the following words in the legal context:-

“Legislation: - includes principal and amending legislation. i.e. Acts and Amendments to such Acts.

“Act” - refers to an Act of Parliament, which has been passed in accordance with the relevant procedure. i.e. it must satisfy the “rule of recognition” which is required for the passing of an Act of Parliament.

“Bill” - A draft of a proposed law presented for approval to a legislative body, or, the law enacted from such a draft.

“Subsidiary Legislation - is also referred to as “delegated legislation” and means any Regulation, Rule, Order, Proclamation, Notification or Bylaw made in terms of a principal Act. It refers to anything done in terms of the power derived under the provisions of the principal Act.

It must therefore be made in the manner set out in the enabling provision. By the use of delegated legislation a greater number of details of an essentially subsidiary or procedural character are withdrawn from inclusion in an Act, and is consequently conferred on the executive by the same Act, and various arrangements are made for parliamentary scrutiny of its exercise.

Question: I am a Sri Lankan who married an Indian in Saudi Arabia. We were both employed in Saudi Arabia for a long period of time. Please let me know whether I could register my marriage in Sri Lanka? Sent by Email

Answer: If your marriage has been registered in the Embassy of Sri Lanka in Saudi Arabia, the same Embassy sends a copy of the marriage certificate to this country to be deposited in the Central Record Room, Colombo. Therefore, your marriage need not be registered again in Sri Lanka.

Question: How to obtain name approval for Private, Public, Public Quoted, Guarantee, Foreign, Off-Shore, Unlimited Companies and Associations.

Answer: 1. You must first search the database of the registered companies through this portal or using the books kept on the information counter of Registrar-General of Companies (ROC) for possible similar names.

2. After you verify the availability of the Name, fill the Name Search Form (i.e. A16) in this portal or manually using the form collected from the information counter of the ROC.

3. The Form A 16 is examined by at the public information counter (if you hand over the form). More information may be requested depending on the manner in which the forms have been filled. This may be done by e-mail if portal is used. If the name includes initials please indicate what those initials stand for.

4. You can either send a Name search application using this portal paying Rs. 417.59 (fees Rs. 350 + 15% VAT + Processing charges) (Only Sampath e-Wallet, Master and Visa cards are accepted) or submit manually paying Rs. 402.50 (Fees Rs. 350 + 15% VAT) to the Shroff counter at the Department of ROC.

5. The name verification document is sent to the database administrator who will run a search for similar names which he will list and submit send it to the Registrar-General of Companies.

6. The Registrar-General of Companies (or his Officers) have the sole discretion to approve the names delegate authority to approve.

He may approve the name OR request more information OR a change to the proposed name. If the name is approved. Approval Number can be collected over the information counter of RGOC or if sent through the portal will be e-mailed the following day.

7. This Reservation is valid only for a period of three months from the date of application.

What payments are excluded from EPF?

Question: I am employed in a Mercantile Firm in the capacity of a Typist Clerk. I would like to know what payments are excluded from ETF.

Answer: EPF is payable on “Total Earnings” and the following payments are excluded from EPF:

i. Bonus payments.
ii. Overtime payments.
iii. Rent allowances - reimbursed
iv. Travelling allowances - reimbursed
v. Service charge in Hotels.

Question: My brother is a Sri Lankan migrated to Australia recently. He wishes to obtain a copy of his Birth Certificate. Please advise him how to get a copy of same from Australia.

Answer: Your brother can obtain a copy of his Birth Certificate from Australia. He needs not come to Sri Lanka to obtain a copy of his Birth Certificate.

First ask him to down load the Birth Certificate Application Form from the following web site:

1. If registered number and date of registration is known - for each copy Rs. 25.

2. If not (if you don’t know the birth registration number but you know the date of birth) - for 3 months search for each copy Rs. 50.

Question: I have lost my National Identity Card. I have only a photocopy of the same.

Answer: I you want to obtain a new Identity Card, you have to first make a complaint to the police station and get a certified copy of that complaint.

Thereafter, you have to meet your Grama Niladari and get an Application Form and have the form duly completed and submit same with the following documents:-

* Five identity card size (coloured photographs - size 1 3/8 x 7/8”) and the photo copy of the identity card. Stamps to the value of Rs. 15.

* Original Birth Certificate to get the new identity card because the date of birth is necessary. If you do not possess a Birth Certificate, you should have documents, such as school leaving certificate, baptismal certificate (if you are a Catholic), horoscope, passport, children’s Birth Certificates to prove your date of birth.

* Documents to prove that you have been using the lost Identity Card numbers (for example Bank Pass Book, Passport).

The Registrar of Persons has ‘One Day Service’ to issue Identity Card on a fee of Rs. 500. Otherwise you can get your Identity Card from the Grama Sevaka through the normal procedure which will take at least one month. If you need any assistance you can visit our Head Office at No. 129, Hulftsdorp Street, High Court Complex, Colombo 12.

Question: Please let me know how to register a Private Company? Your prompt answer would be greatly appreciated.

Answer: a) After obtaining the name approval, Form No. 1, 18, and 19 together with two copies of Articles of Association should be prepared (on A4 paper). All forms should be printed or typewritten. (Section 475)

Form 19 - Consent and certificate of Secretary/Secretaries Articles of the Association

b) Articles of Association may be prepared according to the First Schedule (Model Article) in the Companies Act No. 7 of 2007 (page 414), Articles of Association set out in the First Schedule hereto (hereinafter referred to as “model articles”) shall apply in respect of any company other than a company limited by guarantee, except to the extent that the company adopts articles which exclude, modify or are inconsistent with the model articles.

(a) prohibit the company from offering shares or other securities issued by the company to the public; and

(b) Limit the number of its shareholders to fifty, not including shareholders who are -

(ii) Former employees of the company who became shareholders of the company while being employees of such company and who have continued to be shareholders after ceasing to be employees of the company.

Question: My mother has a land in her name, but she doesn’t have the deed nor does she know the Deed Number. Please let me know how she could obtain a copy of the Deed. All taxes are paid under my mother’s name. Your reply would be greatly appreciated.

Answer: If your mother knows the name of the Notary who attested the deed and the year of attestation, she can go to the Land Registry where the Notary has the licence and obtain a copy of the deed from the Land Registry. For further details your mother can contact the Land Registry in your area.

Question: I read your editorial which appeared in the Daily News Legal Aid Page. According to the said editorial majority of disputes are related to maintenance and divorce.

My sister is also subjected to a lot of harassment and violence from her husband, but she does not want to divorce him.

I would like to know the offences that are stipulated in the Prevention of Domestic Violence Act No. 34 of 2005.

Answer: Thank you very much for reading our page. The offences specified in Schedule 1 of the Prevention of Domestic Violence Act No. 34 of 2005 are given below:-

1. (a) All offences contained in Chapter XVI of the Penal Code and its amendments (beginning from Section 293 to 365). The relevant section are quoted below:-

Section 295 - Culpable homicide by causing the death of a person other than the person whose death was intended.

“Whoever intentionally puts any person in fear of any injury to that person or to any other and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits extortion.”

“Whoever threatens another with any injury to his person, reputation, or property or to the person or reputation of anyone in whom that person is interested with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.”

Committed or caused by a relevant person within the environment of the home or outside and arising out of the personal relationship between the aggrieved person and the relevant person;

“emotional abuse” means a pattern of cruel, inhuman, degrading or humiliating conduct of a serious nature directed towards an aggrieved person.

If you need any legal advice in the matter, you could visit our Head Office at No. 129, Hulftsdorp Street, High Court Complex, Colombo 12.

Disclaimer

The answers to questions are the legal views of individual lawyers and the Legal Aid Commission only compiles them for the Daily News Legal Aid Page.

Your questions should be addressed to - Daily News Legal Aid Page, Chairman, Legal Aid Commission, No. 129, Hulftsdorp Street, Colombo 12.

BASL Law Week

The BASL Law Week 2008 will be held at Colombo University Law Faculty on March 15 and 16.

This year’s theme would be “legal awakening for social justice” and many organisations would be participating in the Law Week.

Among the organisations that would conduct legal service stalls would be the LAC, leading law firms, the University Law Faculty, Center for Study of Human Rights, Sarvodaya Legal Services, the Women in Need (WIN) and Governmental and Non-Governmental Organisations providing legal services and publications would be distributed.

Director of Children and Women’s Bureau Ravi Vidyalankara addressing the gathering at the sticker launch on “Sexual harassment in public transport”. Seated from L/R: Savithri Wijesekera, Director of Women In Need, Nelum Gamage, Consultant, Legal Aid Commission and S.S. Wijeratne, Chairman, Legal Aid Commission. (Right) A section of the gathering.