Introduction - Judicial strictures

During the discussion of the concerns of junior lawyers at the recently concluded Junior Bar Conference, a question was raised about the redress available if a presiding Judge uses inappropriate languages in passing judicial strictures on an Attorney-at-Law.

The eminent judges of the superior courts who were present at the plenary session were concerned about the need for preserving the rights of judges to pass judicial strictures in the course of judicial proceedings but also the need for junior judges to exercise this judicial power with decorum and discernment and suggested possible remedies to be followed with integrity and rectitude.

In our system of justice there is no right of appeal from inappropriate use of language by judges specially when reprimanding individual lawyers or parties or witnesses before the courts.

Independence of judiciary calls for unqualified respect for temples of justice. It is the calling of the judges to act with decorum and the duty of lawyers as officers of court not to engage in acts or omission to sully the sanctity of the judicial process.

Junior lawyers who are mostly at the receiving end of inappropriate judicial strictures should seek the assistance of the President of the Local Bar or a senior lawyer to discreetly take steps to rectify the situation in a diplomatic way. A junior lawyer who intends to practice his profession in a particular court should not be perceived as having an adversarial disposition or not having the empathy in the judicial process.

It was also mentioned at the Conference that the Judges Training Institute should augment the awareness and training of junior judges with the help of Superior Court judges on a continuous basis. After all, Judges are also human beings and subject to vicissitudes of human emotions but as Dr. Trilock Nath Arora states" Judges have to exercise restraint in passing strictures against others - whether politicians, civil servants, members of the police force or subordinate judiciary despite the temptation to do." Judicial strictures are an important part of the judicial process and should be complied and respected in the interest of justice. They are different from empty admonitions of some who often do not practice what they preach. The courts have the moral authority supplemented by contempt jurisdiction to sometimes enforce strictures. But at all times the judges should bear in mind the following principles clearly stated by Dr. Trilock Nath Arora in his book of "Judicial Strictures.

"Judges cannot afford to be hyper-sensitive to the criticism of the judiciary and its pronouncements. Threat of contempt of court is no answer to genuine criticism of the court. A great judge, it has been said must have a constant sense of essential power and yet be capable of humility in its exercise. He must be the servant of justice and not its master, the conscience of the community and not of its dominant interests. The great judge is perhaps the rarest of human types, for in being supremely himself he must yet be supremely selfless. He has to strive towards results he cannot control through material he has not chosen. He has to be in the great world and yet aloof from it, to observe and to examine without seeking to influence. At the same time he seeks to make the infinitely small illuminate the infinitely great."

S.S. Wijeratne

Questions and Answers

Identification of forged Identity Card

Question: This refers to the answer given in the Legal Aid Page of the Daily News on 03.10.2008 under the heading mentioned above.

The answer states "The first two digits of your NIC Number represent the year of birth. Thereafter, the rest of the NIC Number is followed - for example,

If it is a female, the number will start from 501 and if it is a male the number will start from 001".

When I checked my NIC with your clarification of numbers, it does not tally. The first two digits correctly represent the year of birth as mentioned, but thereafter, the rest does not start with 001 as mentioned in your answer. I checked my wife's NIC number too and it also revealed the same.

Kindly publish the correct method of checking numbers and identifying a legal (genuine) NIC.

I.R. Rajapakse, Kelaniya.

Answer: We referred your question with the Commissioner of Registration of Persons Department and according to him, your Identity Card and your wife's Identity Card may be forged ones because it does not tally with the characteristics set out below:-

The characteristics of a genuine NIC. If you carefully look at your NIC, you will observe the following:-

The front side of the NIC you will have the NIC number followed with the initial either X or V.

In accordance with the Indo-Sri Lanka Agreement No.14 of 1967.

* "X" represent Indian Origin

* "V" represent native Sri Lankan

The first two digits of your NIC Number represents the year of birth. Thereafter, the rest of the NIC number is followed - for example

If it is a female the number will start from 501 and If it is a male the number will start from 001

The Commissioner who served during the time of issue of the NIC should sign the NIC. For your easy reference we give below the Authorized Signatory of the Commissioners who served during the time of issue of the NIC.

T.M.B. Ekanayake 01/10/1971 to 13/04/1977

G.P.S.U. de Silva 14/04/1977 to 30/11/1982

C.W. Siriwardena 01/12/1982 to 12/08/1984

M.P.D.C. Fernando 13/08/1984 to 30/09/1987

Bandula Kulatunga 01/10/1987 to 30/06/1993

D.A. Samaraweera 01/07/1993 to 30/03/1994

K.J.V. Ranasinghe 31/03/1994 to 19/07/2004

P.B. Abeykoon 03/08/2004 to 10/04/2005

H.K. Geethasena 11/04/2005 to-06/02/2006

A.G. Dharmadasa 20/02/2006 to date

Verification of the English letters prior to the hand written Number at the backside of the NIC

Eg. "S" - Represents School Identity

Verify whether he/she was schooling at the time of NIC being issued through the verification of DOB

Other short codes;

N. A - New applications;

L. A. - Lost applications;

C. A. - Clarification applications;

S - School Identity;

C.I. - Clarification Identity;

L.I. - Lost Identity

At the end of the sequence No if you find "T" those are issued to people who were victims to Tsunami. Please note that if your NIC Numbers do not tally with the characteristics mentioned above, you must immediately meet the Grama Niladhari in your area and apply for a new NIC stating the above reasons to the Commissioner, Registration of persons Department at No. C45, Keppetipola Mawatha, Colombo 5. Keeping a forged NIC is a punishable offence under the Penal Code.

Re: Gratuity payments

Question: I was employed as an Engineer in a small firm from 1993 to December 2006. My period of employment was 14 years. When I resigned at the end of 2006, I asked about my gratuity payment and was told that I am not entitled to any payment as the Company never employed more than fifteen persons at any time.

I could please like to know if there is such a rule existing in gratuity payments and whether there is any other way I can claim any benefits.

D.S. Wickremasinghe

Ragama

Answer: Even if it is less than 15 employees, the Employer is responsible to pay gratuity under the Industrial Disputes Act. You can file an application in the Labour Tribunal under Section 31B(1) (b).

Non receipt of promotion

Question: I am a Branch Manager of a State Bank. I applied for promotion to the Senior Manager Grade in February 2008 in response to an application by the Bank. The interviews were held from May 2 to May 13, 2008 and I appeared for it on 09.05.2008. The promotions were awarded to 54 Officers on 21st July 2008. My name was not included in the list of promotions. I have learnt from a senior member of corporate management that my name was deleted from the list of promotees as I did not have six month period to serve in the new grade. I am due to retire from service at 60 years of age in late November after serving the bank for nearly 40 years.

I wish to state that I had this six month period when the applications were closed in February and also while I appeared for the interview. I am also senior to most of the promotees in the list. Further, my application was highly recommended by my Assistant General Manager.

It was never a requirement in the bank that a promotee should serve a minimum of six months in the new grade. Further the process took nearly five months (February to July) for completion.

Earlier, in the year 2007 and before promotions to this grade was finalised in not less than two months. In this instance too, I was an applicant and appeared for the interview where I secured a high score over and above many other promotees. That time I did not make an appeal.

Sent by Email

Answer: At the time of promotion, you could have challenged the promotion by way of writ application. But as you have only few months to retire, it would be a futile application, if it cannot be concluded before retirement.

Community based correction orders

Question: Please let me know if it is an offence if you fail to comply with community based correction orders and its consequences? Your kind reply would be greatly appreciated.

B.Rajendran Kaduwela

Answer: The Community Based Corrections Act No. 46 of 1999 provides for the imposition of Community Based Corrections Orders (CBCO's) by Court in lieu of sentences of imprisonment; and for the appointment of a Commissioner of Community Based Corrections and for matters connected therewith and incidental thereto.

A CBCO is an Order made by Court which requires an offender to comply with certain conditions stipulated therein and may include a condition requiring him to perform unpaid community work.

Under the Act - Section 14.

(1) Any offender who fails without reasonable cause, to comply with any condition of a community based correction order shall be guilty of an offence under this Act, and shall be liable, on conviction after summary trial, to a fine not exceeding five thousand rupees.

(2) Where a person commits an offence under subsection (1) the Commissioner shall institute proceedings in respect of that offence by making a written report to the Court which entered the community based correction order in relation to which the default is alleged to have been made, to the effect that the person specified in the report has failed to comply with the conditions of the order specified in the report.

(3) Upon the making of a written report to it under subsection (2) in respect of an offence under subsection (1), the Court may issue summons or warrant of arrest on the offender and proceed to try such offence in the manner provided by the Code of Criminal Procedure Act. No. 15 of 1979 for the trial of offences summarily.

(4) Upon the conviction of any person for an offence under subsection (1) the Court may -

(a) vary the community based correction order in respect of which the default was made;

(b) cancel such order,

(5) Upon the cancellation of community based correction order, the Court may subject to the provisions of subsection (6) deal with the offender for the offence or offences in respect of which the order was entered in any manner in which the Court could have dealt with the offender had it just found him or her guilty of that offence.

(6) In dealing with an offender following the cancellation of a community based correction order, the Court shall have regard to the extent to which the offender had complied with the conditions of the order before its cancellation.

If you need further information contact - Community Correction Board, No. 211, Hulftsdorp Street, Colombo 12, Telephone : (94) 1 381030 & (94) 1 381031 Fax: (94) 1 381031.

Documents to be produced to Registrar of Marriage

Question: I have a friend who is a foreigner and who has decided to get married in Sri Lanka. He is residing in England. He wants to know, in case he gets married in Sri Lanka, the documents he has to submit to the Registrar of Marriage in Sri Lanka. Your kind reply is solicited.

V.Mahesh Ratnapura

Answer: Marriage can be registered after four days of arrival to Sri Lanka. Please contact the relevant Additional District Registrar in Divisional Secretariat Office within the area you are temporary residing in Sri Lanka.

You may bring the following documents:-

* Your passports

* If you have married earlier either the Divorce Certificate or Decree Absolute issued by the Court of Law

* If you were married earlier and if your spouse is dead the Death Certificate of your spouse

Traffic Police - Action to be taken in event of an accident

Question: Kindly let me know what action should be taken in the event of an accident. As you may be aware road accidents are very frequent. Therefore, it is very important to know what action should be taken by the public in such situations. Please advice.

M. Silva

Kalubowila

Answer: It is a well-known fact that road accidents occur daily. It is defined in Section: 161(1) of the Motor Traffic Act "If a motor vehicle meets with an accident on a highway, it is the duty of the driver to attend to the following:-

* immediately stop the vehicle;

* Furnish his name and address, the name and address of the owner of the vehicle, the distinctive number of the vehicle and other particulars relating thereto, if requested so to do by any person to whom, or by the owner or person in charge of the property or the animal to which, the injury has been caused, or by any Police Officer or Grama Seva Niladhari;

* In any case where the person to whom injury has been caused so requests, or if he is unconscious or if the injury caused to that person appears to endanger life, take that person immediately to a hospital or to a medical practitioner, and thereafter report the accident forthwith to the officer-in-charge of the nearest Police Station; and

In every case not referred to in paragraph (iii), report the accident forthwith to the Officer-in-charge of the nearest Police Station.

The owner of the motor vehicle, whether or not he was present at the time of the accident, shall on demand by any Police Officer or Grama Seva Niladhari, furnish all information in his possession as to the name, address, description, antecedents and whereabouts of the driver of the vehicle and of every person in the vehicle at the time of the accident. Every such owner who, in compliance with any such demand, gives any information pertaining to his knowledge is false or in any particular misleading, shall be guilty of an offence under this Act.

Every, person, other than the driver, who was in the vehicle at the time of the accident shall;

Furnish his name and address and all such information as may be in his possession as to the names and addresses of the driver and of the owner of the vehicle and the distinctive number of the vehicle and other particulars relating thereto, if requested so to do by any person to whom, or the owner or person-in-charge of the property or animal to which, the injury has been caused, or by any Police Officer or Grama Seva Niladhari; or Within twenty-four hours of the accident communicate his name and address and the fact that he was in the vehicle at the time of the accident to the officer-in-charge of a Police Station.

Where in any accident due to the use of a motor vehicle on a highway any injury is caused to any person, and the driver of the motor vehicle on being requested so to do by a Police Officer or a Grama Seva Niladhari, or by the person who has been injured or any other person acting on his behalf, does not at the time produce the certificate of insurance or of security relating to that vehicle.

The driver shall, as soon as possible, and in any case within twenty-four hours of the occurrence of the accident, produce such certificate for inspection at the nearest Police Station; Provided, however, that no person shall be deemed to have contravened the provisions of this subsection by reason only of his failure to produce such certificate, if, before the expiry of a period of five days from the date on which the production of the certificate was so required, he produces the certificate in person at such Police Station as may have been specified by him on that date;

The owner of the motor vehicle shall give such information as may be required by a Police Officer for the purpose of determining whether or not the vehicle was being driven in contravention of the provisions of Section 99 at the time when the driver was required to produce the certificate.

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Question: Please explain to me what you mean by 'Parate Execution'. Your early response would be greatly appreciated.

J. Mahinda, Thalawathugoda.

Answer: Parate Execution is one of the common most means of money recovery employed by banks in Sri Lanka, where immovable property has been hypothecated to banks as security for a banking facility. In essence, Parate Execution is the right of the mortgage to sell the mortgaged property without intervention of courts, that is to, say extra-judicially.

Parate Execution was first introduced to Sri Lanka by statutes, whereby the State Mortgage and Investment Bank, the People's Bank, the Bank of Ceylon, the National Development Bank and the Housing Development and Finance Corporation, as well as Regional Rural Development Banks were granted the power to recover monies lent by them by way of Parate Execution. This power was granted by the respective statutes that established these banks. The Courts in the past have considered these statutory rights of Parate Execution as harsh and deplorable.

Subsequently, by the Recovery of Loans by banks (Special Provisions) Act No.4 of 1990 (as amended by Act No.24 of 1995), all licensed commercial banks within the meaning of the Banking Act No.30 of 1988, the Development Finance Corporation of Ceylon (DFCC) and the National Savings Bank were bestowed the power of recovering monies by way of Parate Execution.

The power granted by statute to banks to auction immovable property by way of Parate Execution to recover the monies due under banking facilities granted to its customers was consistently upheld by the Courts of Sri Lanka. Moreover, in the past, Courts have unquestioningly accepted that banks are entitled to sell property mortgaged to them by way of Parate Execution, even though the said properties were mortgaged by persons other than the borrower".