Introduction - Oppression by litigation

People resort to unaffordable litigation to settle disputes through independent Judges. Some people are reluctantly drawn before courts by the rich and the powerful to oppress the poor, through litigation deny the basic human rights such as freedom, equality and rights to property. These powerful litigators use litigation as an instrument of oppression to harness the poor and the vulnerable. Their threatening motto is to tell vulnerable "see you in courts".

This legal aid litigation is different as it helps ordinary women who are facing emotional and economic hardships when their husbands abandon them or hapless accident victims who are litigated into submission by Insurance Companies or poor consumers who are cheated by producers, manufacturers and traders on a daily basis. The big supermarkets and mega malls are law unto themselves despite the Consumer Protection Law No. 9 of 2003 or the much publicized consumer court.

We had a recent case where a young man has purchased a chocolate and found a gecko in it. The manufacturer dared the victim to sue the giant companies or accept few more free chocolates as a settlement. Effective consumer protection in Sri Lanka is yet unheard.

Under our Constitution, the violation of fundamental rights by definitions is attributable to executive or administrative action of the State. Unlike in South Africa and few other countries, the private sector is not liable for fundamental human rights violations in Sri Lanka. This continues to be a paradox. A detraction on the principle of equal access to justice to all with regard to human rights violations.

The basic defender of the perpetrators (Executive and Administrative Officers) is the State law officers of the country. Critical views has been expressed by observers about the conflicting role of the AG as the protector of the Sri Lankan Constitution but stepping to courts to defend alleged violators of the Constitutional provisions on fundamental rights.

Proposals had been made that a separate department of the Attorney-General should defend alleged violators of FR provisions. The practice of the AG not to appear for alleged perpetrators of torture should be noted in this context.

The victims of fundamental rights violation are often very poor and powerless with inexperienced litigation lawyers are pitted against the legal power of the State, could be seen as oppression by litigation.

It is in this context that legal aid to the poor need to be strengthened by a democratic state supported by the donor community and the Bar Association of Sri Lanka. Appearing for legal aid clients may not be glamorous but it is an essential public legal service.

The BASL elects six volunteers to work as Legal Aid Commissioners but the LAC continues to be constrained by lack of funds to carry out its mission to provide access to justice to all. In this situation oppression by litigation is likely to continue in Sri Lanka.

S.S. Wijeratne

Questions and Answers

How to register Power of Attorney in Sri Lanka?

Question: I hold the Power of Attorney of my mother which was signed at the Embassy of Sri Lanka in Beirut, Lebanon. Please let me know as to how I could register the same in Sri Lanka.

Nilu Fernando, Wennappuwa

Answer: You have to obtain a photo copy of the relevant Power of Attorney which should be certified by a Sri Lankan Notary. Thereafter, an Affidavit should be prepared stating that your document is genuine and still in force.

These documents must be forwarded to the Head Office of the Registrar-General's Office or to the relevant Zonal Office for registration. Stamps to the value of Rs. 3.75 should be affixed on the photo copy as the registration fee.

Re: Parties held at the adjoining residence Mahavidane Lane, Koralawella, Moratuwa

Question: The last party held at the above residence from about 10 p.m. on 03.02.2008 to 4.50 a.m. on 04.02.2008 disturbing us from sleeping as follows:

1. Singing using a tabla at intervals.

2. Whistling, similar to a whistle used by rowdies, at intervals.

3. Non stop laughing, at intervals.

In addition to the above, the husband, wife and daughter comes on the 20ft road and keep on speaking to the outgoing guests in a loud tone, hooting, whistling and laughing just opposite our bed room windows, under the influence of liquor.

We are unable to sleep whenever parties are held at the above residence. I am 72 years and my wife is 69 years old.

Can they disturb us and prevent us from sleeping after 10 p.m. and what action can I take. I did not complain to the police station as they were not using loud speakers.

J.A. Villette Peiris, Moratuwa

Answer: If your neighbour is behaving in such a manner as set out in your letter, please lodge a complaint to the relevant police station.

If you wish to institute an action against your neighbour for public nuisance, there should be some other residence who are affected by the said misbehaviour of your neighbour. In such event you have to prove that the nuisance affects the public.

You can file action by way of private plaint or through the relevant police station after lodging the police complaint.

Applications for duplicates of Lost Identity Cards

Question: I have lost my National Identity Card. I want to know what documents I should submit to get a new Identity Card?

M. Senewirathna, Kelaniya

Answer: Form RPD/V/7 (printed on green colour paper or in green colour letters).

The documents to be attached with the applications for duplicates for lost identity cards are: A certified copy of the complaint made to the police regarding the loss of the Identity Card, Birth Certificate or alternative documents mentioned in the relevant section. Certificate of employment, (if employed) obtained within three months.

Number of the lost Identity Card. Stamps to the value of Rs. 15.00. Certificate of residence or other documents mentioned in the relevant section. Five colour photographs (1 3/8" x 7/8").

Documents to prove that the identity Number has been used.

If the applicant has become a priest, Samanera, a Certificate or a letter stating the date of robing. Samanera name and lay name from the robing Acharya/ Upadhyaya (tutor) should be produced.

If disrobed, a letter stating the date of disrobing, certificate of disrobing or letter with the name given at robing along with the lay name, should be furnished.

When applying for a duplicate of the lost identity card, the very same particulars in the lost identity card should be indicated in the application.

Qualifications required for National Identity Cards issued for first time

Question: Please let me know the qualifications required for National Identity Cards issued for the first time?

Your early reply would be greatly appreciated.

M. Anuradha, Kandy

Answer: The applicant should be a lawful resident of Sri Lanka and should have completed 16 years of age.

Documents to be attached with the application for an identity card for the first time

* Duly perfected Birth Certificate or Presumptive Age Certificate.

If the Birth Certificate or Presumptive Age Certificate is not available, a nil statement of register of birth and an affidavit should be submitted along with possible documents stated below:

School leaving Certificate
Baptism Certificate.
Copies of children's birth certificates indicating the birth of applicant.
Birth extract.
Citizenship Certificate (if date of birth is indicated).
Estate leaving Certificate (if date of birth is indicated).
Certified copies of relevant pages in the Passport.

Record of birth or registration card issued by Estate Superintendent.

If the applicant is a Buddhist priest, Samanera Certificate or a letter stating the date of robing, Samanera name and lay name from the robing Acharya/ Upadhyaya (tutor) should be produced.

If disrobed, a letter stating the date of disrobing, certificate of disrobing or letter with the name given at robing along with the lay name, should be furnished.

Five copies of colour photographs (1 3/8" x 7/8").

Stamp fees

Applicants below 17 years: stamps to the value of Rs. 3.00. Applicants over 17 years: stamps to the value of Rs. 13.00.

Documents to be furnished to prove residence

Residential Certificate issued by the Grama Niladhari. In the absence of such certificate one or more of the following documents should be produced.

Certified extract of the electoral list.

Certified copy of monthly statement of bank Accounts

Certified copy of telephone bills

Certified copy of electricity bills

Certified copy of the deed pertaining to the ownership of the land or house. If the house is leased or rented, relevant agreement and receipts for payments of rates.

Temporary residents should forward the copy of the letter which provided information to the police along with above documents.

How to donate my body to Medical Faculty

Question: Please let me know the procedure in donating my body to the Medical Faculty students after death.

I am a deaf and dumb, 82 years old, Retired Technical Assistant and have two daughters both to whom are of normal hearing, were helped by me to have an education upto two University level, were well employed, happily married and settled down.

I am facing a very sad plight and distressed due to my elder daughter as she is not gratified, but unfair and illegal treatment has been meted out to me, as she does not care to look after me or even visited me for a long time. Eventhough I am old and sick, all medical expenses including consulting fees are met by me.

In the event of my death whether at home or warded in any Government Hospital, my body should not be given to my wife nor to my two daughters but instead go to the Medical Faculty students to do their practical study on me especially both my ears which, caused my deafness.

Please advise me as to how I could settle this matter before my death. I await your kind reply.

J.R.B. Kobbekaduwa, Talawatugoda.

Answer: As per your wish, you can donate your body to the Medical Faculty after your death. In the first instance you must appoint a next of kin. Thereafter, a request by letter has to be sent to the Medical Faculty to the following address together with a self addressed stamped envelop:-

Head/Dept. of Anatomy, Faculty of Medicine, Kynsey Road, Colombo 08. Tel. No: 2696243

On receipt of your letter, the Faculty will send you the relevant application forms for completion. If you wish to, you can visit the above Department during working hours and collect the application forms personally. The necessary instructions are given as to how the application form should be completed.

Re: Pension matter

Question: My wife who had been a staff nurse attached to the Health Department died recently having completed 27 years of service. She retired in 1979. Her last station was Lady Ridgeway Hospital, Colombo. After her death I sent a letter to the Director-General of the Department of Pensions (W&OP) in order to find out whether I am entitled to receive a pension. I received a reply and it says that payment cannot be made as she had not been contributing to the W&OP.

According to my memory, male Government employees made contributions to the W&OP and female employees made contributions to the PSPF (Public Service Provident Fund) during her period of service and she too may have made contributions as others. It is now clear I am entitled to receive a payment on contributions made to the PSPF.

Please be kind enough to let me know what steps I should take to be entitled to receive payments on contributions made to the PSPF by my deceased wife.

P. Kariyawasam, Wanduramba

Answer: We discussed your matter with the Director of Pensions. As per the contents in your letter, you are not entitled to get your wife's W&OP benefits because the W&OP payment scheme was introduced in 1983 and your wife had retired in 1979.

Clarifications regarding termination of employment

Question: I have been employed in a managerial capacity, in a private sector establishment, from 01st December 2003. The Company has about 100 employees and we are governed by the Shop of Office Act.

My appointment letter states that termination of employment, on either side, will be three months notice, or salary in lieu. Please clarify my rights and obligations under the Shop and Office Act, under the following circumstances.

* I submit my letter of resignation, on September 25, 2008, giving three months notice. Therefore, my effective date of resignation is December 25, 2008. However, I decide to utilise my remaining annual and casual leave, so that my last working day at office would be November 25, 2008.

In this instance, am I not entitled to my full salary and other perks upto December 25, 2008? I am also entitled to a Company maintained, car, petrol and maintenance. (The car is owned by the Company) Am I not entitled to these perks as well upto December 25, 2008, despite my last working day being, November 25, 2008? Can my employer, make any salary deductions, based on the clause in the appointment letter, regarding three months notice?

* In the same scenario as above, I complete 5 years of service, on December 01, 2008. Am I not entitled to gratuity, although I shall be physically present in office only upto November 25, 2008?

Please be kind enough to enlighten me on these issues, in the Daily News Legal Aid Page.

R. Gunawardena, Colombo 7

Answer: (a) If you have given three months notice of resignation, you are entitled to utilize your unavailed of annual leave for the year 2007 and the earned leave for the year of termination - i.e. from 01st January 2008 to September 2008, one day for each month during the period of notice. You cannot set off the casual leave during the period of notice.

(b) You will be entitled for your salary upto 25th December 2008 provided you have balance unavailed of annual leave.

(c) You will be entitled to use your Company maintained vehicle upto 25th December 2008.

(d) If you have completed five years of service on the 01st of December 2008 without a break in service, you are qualified for your gratuity under the Payment of Gratuity Act No. 12 of 1983.

Identification of ordinary mail and business mail

Question: x I am a postal clerk employed in a Mercantile Firm. I would like to know the difference between ordinary mail and business mail. Could you kindly let me know through your valuable Daily News Legal Aid Page.

M. Perera, Negombo.

Answer: The under mentioned categories of letters with the maximum weight of 30 grms are included in the category of ordinary mail:-

(i) Letters of standard sizes and addressed by private names as sender's address.

(ii) Letters bearing the return addresses of the Government Departments and Ministries (with their P.O. Box Nos, if there is any).

(iii) Letters of the Members of the Parliament and Provincial Councillors who forward their letters to local mail within the approved limit under the privilege of free postal facility.

The following categories of letters are included in the category of business mail:

(i) Letters which exceed 30 grms in weight.

(ii) Letters which bear the addresses of Private Institutions as sender's name.

(iii) Letters enclosed in window envelopes.

(iv) Letters or mail articles enclosed in envelopes of any size with business advertisements, advertising symbols or any such impression (Letters which do not exceed 30 grams in weight enclosed ad in envelopes printed by the Postal Department with advertisements are not taken into this category).

(v) A letter of any weight (inclusive of the letters less than 30 grms in weight) with a P.O. Box No. as the return address.

(vi) All letters and postal articles handed over to the bulk mail and business mail.

How to register a private company?

Question: I am interested to incorporate a private company in Sri Lanka. Please let me know how to register the said Company.

M. Justin Perera, Ja Ela.

Answer: First of all you must obtain a name approval.

(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). Hand written forms will not be accepted.

Form 1 - Registration of a Company

Form 18 - Consent and Certificate of Director

Form 19 - Consent and Certificate of Secretary/Secretaries.

Articles of Association -

(b) May be prepared according to the First Schedule -

(Model Article) in the Companies Act No. 7 of 2007 (Page 4140. Articles of Association set out in the First Schedule (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.

(c) The articles of a private company shall include provisions which - (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 -

(i) employees of the company; or

(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.

Submit the above mentioned documents to the information counter to check whether they are in the correct format. If it is 'ok' submit it to the Shroff counter.

The registration fees are Rs. 10,982.50 including VAT.

Form 1 - Rs. 8500,

Form 18 - Rs. 350,

Form 19 - Rs. 350,

Articles of Association - Rs. 350 (+15% VAT)

A company shall within thirty working days of its incorporation under this Act, give public notice *of its incorporation, specifying

(a) the name and company number of the company; &

(b) the address of the company's registered office.

(*public notice - Where public notice of any matter is required to be given under this Act, that notice shall be given by publishing a notice of that matter -

(a) in at least one issue of the Gazette; and

(b) in at least one issue of a daily newspaper in the Sinhala, Tamil and English (three papers) languages, circulating in the area in which -

(i) the company's place of business;

(ii) if the company has more than one place of business, the company's principal place of business; or

(iii) if the company has no place of business or the location of neither its principal place of business nor any other place of business is known to the person required to give the notice, the company's registered office, is situated. (Extracted from 530th clause of Companies Act No. 7 of 2007).

Further information if one would like to register private company with shares issued to a foreign investor, it should be either get BOI approval or can be register without getting BOI approval, if it is not violating the limitations under section 3 of the extraordinary gazette notification No. 1232/14 dated 19.04.2002 published under the Exchange Control Act (chapter 423 of the CLE). When preparation of articles for these, inclusion of Primary Objects are mandatory.