Introduction - Legal English

The Sri Lankan legal system established after Lord Cameron's recommendations in 1833 followed the English model. The Common Law of the country, Roman Dutch Law (RDL) was introduced by the Dutch rulers in the 18th century was retained by the British rulers but all laws relating to penal matters, courts procedure, commercial matters were of English origin.

Regarding personal laws, an attempt was made to retain the customary Kandyan Law in up country areas, Thesavalami for Tamils in the Jaffna district and Muslim law for the Muslims scattered around the island with concentration in the Eastern Province. These basic sources of our legal system continue upto date augmented by new legislation from time to time.

The leading RDL source jurists, Voet and Grotins were compulsory studies for Ceylon's Law students and scholars. Until recently, the LLB Course in the University consisted of a paper in Latin to have access to original Roman Dutch Law. Civil Law luminaries of yonder drew legal precedents and inspirations from South Africa, the only other country where RDL was the Common Law.

It is regretful that RDL lawyers of South Africa and Sri Lanka failed to develop bilateral legal relationships.

In the present Sri Lankan context, the study of the Roman Dutch Legal Jurists have gone into oblivion and instead of the original sources English renderings of Dutch jurisprudence is studied in the Sri Lanka Law College and the Law Faculties of the University. The text book on Roman Dutch Law by R. W. Lee has been substituted to the original writings of the Dutch jurists.

Absence of a Roman Dutch Law study institute in South Africa, Sri Lanka or even in the Netherlands has distracted from the continuous growth of Roman Dutch Law as one of the world's oldest legal systems.

Globalisation and IT revolution has ensured the predominant place for the English Language.

Other than the super power USA, the Commonwealth countries including India, Australia and Canada are dominant leaders in the English speaking world.

Indian courts at the superior level function in English. So are the superior courts in Sri Lanka, the Court of Appeal and the Supreme Court.

Additionally, the specialised High Courts devoted to commercial litigation uses English as the medium of litigation.

The Commercial Arbitration Institutes where national and international commercial disputes are settled through arbitration invariably use English as the chosen language of the International Commercial Arbitration.

The annual Diploma Course in Arbitration conducted by the ICLP fulfilling the gaps existing in respect to Arbitration is in English where diverse professionals - i.e. Accountants, Engineers, Architects, Corporate executives who may have studied their disciplines in the different language follow the Diploma course in English.

Legal English has collapsed during the last three decades due to declining use of English by legal professionals. The Council of Legal Education has taken corrective steps. The Universities should follow suit. The BASL should launch a series of programs for Lawyers islandwide to restore the knowledge status quo ante.

S. S. WIJERATNE

Eminent Judges of Sri Lanka:

Victor Tennekoon, CJ

Victor Tennekoon was born on September 9, 1914. He was the first Kandyan on the Bench and of a distinguished family, one brother, Herbert, becoming the Governor of the Central Bank and another, Geroge, becoming a Professor of Medicine.

He was educated at St. Anthony's College, Kandy. After obtaining his Bachelor of Arts degree from the University of London, he was called to the Bar on May 4, 1943. Having practised at the Kegalle Bar, he joined the Department of the Attorney-General on October 1, 1946 as a temporary Additional Crown Counsel and specialised in civil work, although he did prosecute in some important cases including the Coup case of 1962. On November 1, 1955 he was appointed Acting Senior Crown Counsel and was confirmed as Senior Crown Counsel on May 2, 1956.

On various occasions between April 1, 1957 and June 1961, he functioned as Deputy Solicitor-General and on July 5, 1961, he was appointed Deputy Solicitor-General. He then spent the period September 26, 1961 to March 9, 1962 at the Columbia University, U.S. on a Senior Fellowship in Constitutional Law awarded by the Asia Foundation.

In 1964 he was appointed Solicitor-General and the dignity of silk was conferred upon him in 1965. After serving three years on the Supreme Court Bench as a Puisne Justice (he was welcomed to the Bench at a Ceremonial Sitting on February 10, 1967) he was appointed Attorney-General in 1970, then served as a Judge of the Court of Appeal (which replaced the Judicial Committee of the Privy Council as the final appellate court of Sri Lanka) and finally rose to be Chief Justice in 1974.

Victor Tennekoon served the country in many other capacities. He was Secretary to the Kandyan Peasantry Commission from March 14, 1949 to March 5, 1951. In collaboration with Sir Humphrey Waldock, he advised the Government on the international law aspects of the nationality problems of persons of Indian origin. From 1970 to 1980 he was Chairman of the Presidential Commission on Development Councils.

From 1979 to 1984 he was Chancellor of the University of Peradeniya, which conferred the degree of Doctor of Laws (LL.D) honoris cause on him. He has also served as Chairman of the Law Commission, Chairman of the Salaries Review Committee, Chairman of the L.B. Finance Company, Chairman of the Central Hospitals Ltd, and as Deputy Chairman of the Commercial Bank of Ceylon. In 1984 he chaired the Ministry of Justice Law's Delays seminar and the Committee on the Courts of Appeal.

He was honoured with the title Desamanya in 1986 in the first ever Independence Day National Honours list.

His daughter, Priyani (LL.B.Honours. Sri Lanka, LL.M. Monash) followed him into the legal profession.

1968 saw the retirement of the Acting Chief Justice, T.S. Fernando and of Justices H.W. Tambiah and A.W.H. Abeysundere. The vacancies on the Bench were filled by Dr. C.G. Weeramantry, O.L.De Kretser (Jnr), S.R. Wijayatilake and V.T. Pandita Gunawardene.

Questions and Answers:

Matters relating to EPF and ETF

Suspense Account in Central Bank in relation to EPF contributions

Question: What is the meaning of 'Suspense Account' in the Central Bank in relation to EPF contributions? Does the employee suffer financial loss as a result of EPF monies lying in a Suspense Account?

G. Kodituwakku, Kottawa.

Answer: When the employer fails to send the correct EPF returns, the Central Bank is unable to credit the individual accounts. The Central Bank in this context opens a special account called 'Suspense Account' to which such contributions are credited. This account is opened under Sec. 5 of the Employees Provident Fund Act No. 42 of 1988.

As and when correct Returns are received, the monies are transferred to individual accounts and interest is also paid on the sum from date of receipt to date of transfer for a period not exceeding six years prior to the date of such transfer.

The employer is required to pay a surcharge of 1% of the contribution for every completed month from the last date on or before the return was due to the date of receipt by the Central Bank of a duly completed return. The employee will not suffer any financial loss.

Matters relating to EPF and ETF

Question: I was appointed Personnel Manager on 01.01.2008 in a Company which was incorporated in July 2007. Prior to this appointment I was in Government Service as an Accounts Assistant. This Company has permanent, temporary, casual and piece rated employees and also apprentices.

There are some employees who have retired from Government service on reaching the age of 60. The Company has in all 150 employees. EPF contributions are made by this Company at the rate of 15% of the salary and 8% as employee's contribution.

The Company does not contribute EPF to the employees who retired from Government service including me on reaching the age of 60. The Company does not contribute to ETF for the reason that it contributes 15% to EPF. I am not familiar with the law relating to EPF and ETF.

Please advise me on the following matters:-

i. Is the Company correct in not contributing EPF to the retired employees over the age of 60?

ii. Is the Company correct in not contributing to ETF for the reason that it contributes 15% to EPF?

iii. To what categories of employees contribution of ETF should be made?

iv. What is the percentage of contribution to ETF by employer and employee?

v. Is there a time limit for payment of ETF and in case there is delay would surcharge be levied and if so what is the rate of surcharge?

vi. Is the employee required to make a nomination for ETF?

G. Fernandez, Colombo 6

Answer: i. The Company should contribute EPF to retired employees over the age of 60. The law was amended in this regard effective from 01.01.1995. The Company should contribute EPF to you also.

ii. The Company should contribute 3% to ETF to all employees. According to Sec.17 (1)(a) of the ETF Act No.46 of 1980, your Company can deduct the excess 3% it contributes to EPF and remit it to ETF.

iii. Contributions to ETF should be made in respect of all employees on permanent temporary casual contract or piece rate basis and apprentices irrespective of their age. iv. The employee does not contribute to ETF. The employer should contribute 3% of the total earnings.

v. There is a time limit for payment of contributions. Surcharge should be paid on late or delayed contributions - The rate of surcharge is as follows:

(a) Not exceeding 10 days 5% of the contribution.

(b) Not exceeding 01 month 15% of the contribution.

(c) Not exceeding 03 months 20% of the contribution.

(d) Not exceeding 06 months 30% of the contribution.

(e) Not exceeding 12 months 40% of the contribution.

(f) Exceeding 12 months 50% of the contribution.

vi. Nomination is a requirement under the Law. Nomination as well as revocation should be done in the appropriate form. Document of nomination and revocation should be forwarded to the Board by the employee through his employer within 30 days of execution of the documents.

The Board may refuse to accept the document, it is not sent within the stipulated period of 30 days unless it is satisfied that the delay was due to unavoidable circumstances. A member making the nomination or revocation shall sign and place his thumb marks on such nomination or revocation as the case may be in the presence of a witness who shall sign and witness the signature and thumb marks of such member.

Where a person is unable to sign, he shall place his thumb marks in the presence of another person who shall certify the thumb marks of the person who makes such nomination or revocation. No person who has been nominated by a member in any nomination shall witness the signature or thumb marks of that member in that nomination.

Where more than one person is nominated in what proportions the shares are payable will have to be specified. If no directions are specified regarding the proportion of the shares benefits will be distributed equally.

Any nomination made by a member prior to his or her marriage shall be deemed to be revoked upon marriage. Every nomination by a member who is married shall be in favour of one or more members of his family.

How to refund payment of contributions to EPF made in excess?

Question: As an Accountant of the Company, I have made contributions to EPF in excess by error a sum of Rs. 125,000 for the period October 2007 to January 2008. The Management of the Company is taking steps to recover this sum of Rs. 125,000 from my salary and also taking disciplinary action against me. I am in a fix. Please advise me as to what I should do?

P. de Silva, Hendala.

Answer: Regulation 62 of the Employees' Provident Fund Regulations 1971 provides for refund of monies paid in error. You will have to make an application to the Commissioner of Labour, Labour Secretariat, Colombo 5 for the refund substantially in Form Q of the second schedule.

The Commissioner of Labour on being satisfied that there is an excess of contributions paid in error would cause the refund to be made.

Please note that application for refund should be made to the Commissioner of Labour not later than one year from the date of payment of the contribution. Do not worry.

You have ample time to make the application for refund. Go ahead immediately. Please contact us if you have any difficulty in making the application for refund.

How to repatriate Sri Lankan expatriates who are stranded

Question: Would you kindly let me know as to how Sri Lankans who are stranded abroad (specially housemaids) are got down to Sri Lanka. Where do we have to report? Please let me know your answer as early as possible.

M. Yusuf, Gampola

Answer: As you may be aware of large number of Sri Lankans are stranded abroad, particularly in the Middle East, South East and Far East Asia. Those stranded are mainly job seekers sent by unscrupulous employment agencies. The Consular Division assists them and makes arrangements for their early repatriation through the respective Sri Lankan mission abroad.

To repatriate Sri Lankan expatriates who are stranded, detained abroad, addressing inquires to Sri Lankan Missions about housemaids of whom the next of kin have not heard for a long time, the following information is required.

1. Passport No.

2. Name, address and contact number of the working place. (Abroad)

3. Foreign Agent's name, address and contact No.

4. Sri Lankan Agent's name, address and contact No.

5. Date of Migration.

6. What you (NOK) expect from the Sri Lanka Government.

7. If detained name of the detained place and reasons for detention. If the required information is furnished to the Consular Division.

Maintenance of handicapped daughter

Question: I know of a family who has a blind daughter who is married and having a child. Her husband is ill treating her and never maintains her.

Is there any law to safeguard my daughter? What kind of help can they obtain from the Legal Aid Commission?

Samarasekara, Anuradhapura

Answer: The Legal Aid Commission has set up a Disabled Legal Aid Desk. We are always ready to help disabled persons like your daughter. Under the Maintenance Act No. 37 of 1999, you can obtain relief by filing a case in the Magistrate's Court for maintenance.

Under the Domestic Violence Act No. 34 of 2005 you can file a case in the Magistrate's Court and get a protection order from Court. Disabled Act No. 28 of 1996 also has provisions to protect disabled person like your daughter.

For free legal aid and advice you could call over at our Head Office during working hour and we would be happy to help you in the matter.

Or you can visit our Anuradhapura Legal Aid Centre or contact Tel. No. 025-2224465.

Husband continues harassing inspite Interim Order against him

Question: I am a 27 year old married woman with one child. I have filed a maintenance case against my husband. Since I was subjected to domestic violence, I was successful in obtaining an interim order from the Magistrate's Court prohibiting my husband from harassing me.

However, inspite of obtaining the aforementioned order, he still continues to harass me. Could you please advice me as to what I should do under these circumstances?

Chandrani, Nugegoda

Answer: You must first ascertain whether the interim order has been served on your husband.

If the interim order has been served on your husband and your husband has failed to comply with such order, he is guilty of having committed an offence. If found guilty, he is liable to pay a fine Rs. 10,000 or to imprisonment of either description for a term not exceeding one year or to both such fine and imprisonment.

In a matter of this nature, please take steps to record a complaint at the local police station each time he harasses you. Also obtain certified copies of such complaint/complaints from the police.

Complaints related to Sri Lankan expatriates

Question: As you may be aware the majority of our women are employed in Middle East countries. As per newspaper reports, most of them are subject to severe harassment at their workplaces. In such situations, how can they seek relief. Please advise.

Ananda, Panadura

Answer: Sri Lankans abroad, undergoing various difficulties such as non-payment and under payment of salaries, harassment, ill treatment and denial of basic facilities are assisted by the Division.

The Consular Division intervenes to solve these problems with the assistance of the Sri Lankan Missions, Sri Lanka Bureau of Foreign Employment (SLBFE) and the Ministry of Labour.

Most of the above complaints are received from the Middle East region. Complaints received from relations of expatriates are referred to our missions abroad for suitable action. If you need further help you can visit our Migrant Workers Unit - Legal Aid Commission at No. 129, Hulftsdorp Street, High Court Complex, Colombo 12. Tel No. 2433618.

Re: Fundamental Rights Application

Question: One of my friend's son was brutally assaulted by the police and was later remanded. I went to see him in the remand prison. He told me that the police officer who assaulted him was drunk at that time.

Please let me know whether this is a Fundamental Rights violation and if so where should I go?

This question was posed to us by telephone

Answer: Yes. This is a Fundamental Rights violation. Under the Constitution of the Republic of Sri Lanka, Chapter III Article 13 states as follows:

(1) No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest.

(2) Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to procedure established by law and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law.

(3) Any person charged with an offence shall be entitled to be heard, in person or by an Attorney-at-Law at a fair trial by a competent court.

(4) No person shall be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law.

The arrest, holding in custody, detention or other deprivation of personal liberty of a person, pending investigation or trial, shall not constitute punishment.

(5) Every person shall be presumed innocent until he is proved guilty; Provided that the burden of proving particular facts may, by law, be placed on an accused person.

(6) No person shall be held guilty of an offence on account of any act or omission which did not, at the time of such an act or omission, constitute such an offence, and no penalty shall be imposed for any offence more severe than the penalty in force at the time of such offence was committed.

Nothing in the article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations.

It shall not be a contravention of the said Article to require the imposition of a minimum penalty for an offence provided that such penalty does not exceed the maximum penalty prescribed for such offence at the time such offence was committed.

(7) The arrest, holding in custody, detention or other deprivation of personal liberty of a person, by reason of a removal order or a deportation order made under the provisions of the Immigration and Emigrants Act or the Indo-Ceylon Agreement (Implementation) Act, or such other law as may be enacted in substitution therefore, shall not be a contravention of this Article.

According to your question, since torture is considered as a Fundamental rights violation, you can file fundamental rights action against the police within 30 days from the date of violation.

As you are a poor litigant, you can call over at the Legal Aid Commission, Head Office, 129, Hulftsdorp Street, Colombo 12, Human Rights Bureau or you can send a registered letter direct to the Chief Justice, Superior Courts Complex, Colombo 12.

However, it is advisable to make a complaint to the ASP, SSP or the DIG.

Main Functions of Ministry of Trade, Commerce and Consumer Affairs?

Question: What are main functions of the Ministry of Trade, Commerce and Consumer Affairs and what are the Institutions coming under this Ministry?

Joe de Silva, Mutwal.

Answer: The main functions of this Ministry are:

. Implementation of policies, plans in respect of Trade, Commerce and Consumer Affairs

. Trade Development

. Overseas Trade

. Administration of the Mahapola Scholarship Programme conducting of Mahapola Trade Fairs

The Institutions coming under this Ministry are - Department of Commerce, Department of the Registrar of Companies, Department of Measurement Units, Standards and Services, Department of Import & Export Control, Department of Food Commissioner, National Intellectual Property Office of Sri Lanka, Consumer Affairs Authority, STC General Trading Co. Ltd., Co-operative Wholesale Establishment, Lanka Salusala Ltd, STC Medical Ltd., Mahapola Higher Education Scholarships Trust Fund, Sri Lanka Automated Cargo Clearance System (SLACCS)

The address is given below:

Ministry of Trade, Marketing Development, Comparative and Consumer Services

No. 330, Union Place
Colombo 2.
No. 330, Union Place

Telephone: 2300341-3

Fax: 94-11-2447669/094-112324416

Traffic Offence

Question: For a traffic offence, can one refuse to hand over the driving license to be retained by the police officer, but accept the fine in lieu of court case and after payment, produce the receipt at the relevant police station?

V. Weerasinghe, Sent by email

Answer: No. Under the Motor Traffic Act, you cannot refuse to hand over the driving license.