Restoration of rule of law

Waging war against the State is a major crime. Sri Lanka's protracted armed conflict where rebels challenged the rule of law in this country has ended in favour of rule of law and the democratically elected President and the legislature.

By definition rebellion against the state is illegal and as provided in the Chapter of the British introduced Penal Code of Sri Lanka the rebels should be punished with death after trial and conviction.

Additionally, a rebellion which resorts to terrorism is condemned strongly by international law. Terrorism is defined as killing of civilians and non combatants in the pursuit of the ultimate objective of the rebel movement.

The defense establishment of the Sri Lankan state has a fundamental duty to protect the state and rule of law through the length and breadth of the country. This had been now accomplished with dedication and sacrifice.

Rule of Law is the highest legal principle of general application; the corner stone of the modern democratic state. The principle, simply explained means that "decisions should be made by the application of known principles or laws without the intervention of discretion in their applications." In other words the law should be supreme and should be the exclusive basis of equitable governance of the affairs of men and society.

Rule of Law or Supremacy of Law need to be understood in contradistinction to the rule of man or God. Historically autocratic kings and tyrants sought legitimacy from divine rights to make laws according to individual whims, fancies and idiosyncrasies.

This resulted in oppression and inequality sometime resulting in the revolutionary overthrow of the tyrants. The parable relating to King Kekille in Sri Lankan folklore symbolizes the rule of an idiosyncratic man.

Rule of Law or Supremacy of Law is operative both nationally and internationally. The principles of international law, which govern the conduct of inter-state relations, are founded on established conventions and multilateral agreements. The United Nations Organization and its specialized agencies are the primary source of modern international law.

In the municipal law, Rule of law entails number of prerequisites. They are: -

(1) Separation of Powers,

(2) Independent Judiciary,

(3) Independent and effective law enforcement authority.

In a modern democratic state such as Sri Lanka, the law making powers are entrusted to a body of elected representatives; the Parliament. The executive power is vested in an elected Executive President (who is constitutionally above the law) and her/his Cabinet of Ministers.

The source for both executive and legislative power is founded on the basic law of the land, the Constitution. The interpretation of the Constitution or any other law is the constitutional responsibility of the independent judiciary who could be impeached for misconduct by the elected Representative. This separation of powers especially that of the Judiciary is a cardinal ingredient of Rule of Law.

The independence of the judiciary envisages that the judges should interpret the law and decide on disputes without fear or favor constantly safeguarding fundamental rights enshrined in the Constitution.

In the exercise of judicial functions the judges should not come under extraneous pressure or influence. Any interference in the judiciary will rupture the Rule of Law resulting in loss of confidence in the administration of justice and attendant breakdown in the Law and Order in the society.

The laws enacted by Parliament and relating to such laws by the judiciary need to be respected and enforced.

This is the responsibility of the law enforcement authorities who like the judges should be neutral and independent to evoke the maximum confidence in society. The law should be the only nexus between the lawmakers, judges and law enforcement officials. Any interference in the equitable enforcement of laws would denigrate the principle of Rule of Law.

The Rule of Law is currently understood as a western legal principle of universal application. However, in ancient South Asian culture the Rule of Law prevailed in a more refined and a humanitarian manner.

The supremacy of Dharma or just and righteous law was the basis of governance and dispensation of justice in ancient India and Sri Lanka. The Dharma envisions the full spectrum of universal Human Rights and values.

In fact, according to early chronicles, a cow filed the first fundamental Rights case in Sri Lanka during the time of king Elara. The cow sought equality of justice against the Prince whose chariot ran over her calf. This fable is an illustration of how Rule of law was deeply ingrained in Sri Lankan society even prior to the beginning of the Christian era.

- S.S. Wijeratne

Questions and Answers

Passport for adopted children

Question: My sister adopted a child. She has a court order. She wants to obtain a separate passport for her adopted child. Is this possible/please let me know

Indika Malranga Dehiwala

Answer: Your sister can obtain a minor's passport for her adopted child or infant, if he or she is a Sri Lankan. The Following documents are compulsory(in the case of adopted children) to obtain separate passports or get her/his name in to the parents passport.

* The court order in respect of adoption of the child.

* Letter of confirmation from the Probation Department.

* If he or she is in the previous parent's passport, the photocopy of such Passport is necessary together with their letter of consent. If not, photocopies of the parents' NIC should be attached.

* Duly completed form K and IM 35 (B)

* Birth Certificate of the child.

* Birth Certificate issued by the particular overseas Mission and the Birth Registration Certificate issued by the Department of Emigration & Immigration under Section 5 (2) of the Citizenship Act( if the child is born in a foreign country). If the Citizenship Certificate is not available, a copy of the receipt of the payment is also acceptable.

* The consent letter is compulsory from the parents declaring that they do not have objections to issue a separate passport to the child.

* Death Certificate if parent is dead.

* Divorced Certificate if parents are divorced.

* The Passports of the parents with photocopies of data page and the page assigned for inclusion of children's names and photographs. * If parents do not possess Passports, an Affidavit should be produced declaring that they have not obtained Passports and NIC of the parents with photocopies.

* The National Identity Cards (with photocopies) of the parents if they have not obtained a Passport.

Mediation Board

Question: Please let me know how to approach the Mediation Board? Please advise me.

Anscar Shanaka - Naththandiya.

Answer: Mediation is a process of alternative dispute resolution in which a neutral third party, the Mediator, assists two or more parties in order to help them achieve an agreement with concrete effects, on a matter of common interest; any activity in which an agreement or whatever matter is researched by an impartial third party, usually a professional, in the common interest of the parties.

The intervention into a dispute or negotiation of an acceptable, impartial and neutral third party who has no authoritative decision making power, to assist contending parties to voluntarily to reach their own mutually acceptable settlement of issues in dispute. Under the Mediation Board Act No.72 of 1988 and the Mediation Board Act 2003, you can personally make an application to the Mediation Board.

Your problem should be stated in brief. Your name and address together with the names and addresses of the party to the dispute should be mentioned. On receipt of your application, the Board will summon the parties for a discussion.

The Police could also refer you to the Mediation Board. This happens when a complaint is made to the Police and when the police feel that the matter should be resolved by Mediation or according to the Law; it has to be referred to Mediation.

Domestic violence

Question: I have a neighbour who is working with an NGO. She tries to get involved in our family problems. She advises my wife to file a Domestic violence case againt me. Please let me know whether under the Domestic Violence Act, Non-Government Organizations (NGOs) can file action on behalf of the aggrieved person?

Asantha - Mahawewa

Answer: Under the Domestic Violence Act No.34 of 2005, Non Government Organizations cannot file Domestic Violence action on behalf of the aggrieved person.

Only the following persons can file action under the Domestic Violence Act:-

(a) an aggrieved person;

(b) where the aggrieved person is a child, on behalf of such child by

(i) a parent or guardian of the child;

(ii) a person with whom the child resides;

(iii) a person authorized in writing by the National Child Protection Authority established under the National Child Protection Authority Act, No.50 of 1998; or

(c) by a police officer on behalf of an aggrieved person.

Weekly holiday falling on a mercantile holiday

Question: May 8 (Friday) and 9 (Saturday) 2009 were Mercantile holidays. Saturday is the normal weekly holiday for employees covered by the Shop & Office Employees Act. Weekly holiday (Saturday) has fallen on a Mercantile holiday.

Will an employee lose the weekly held holiday? I await your kind answer.

F.X. Perera - Wattala

Answer: No - He will have to be granted half a day holiday in lieu of the weekly holiday within a week from 9.5.2009.

Employment of women at night

Question: My mind is not clear on the Law relating to employment of women at night - I am confused as there are different versions. Can you please explain the Law in this regard?

K. Sarathchandra - Panadura

Answer: Women can be employed at night without restrictions subject to certain conditions given below:-

i. A woman cannot be employed at night against her consent. There is no requirement for consent to be given in writing.

ii. A woman employed on any day any time between 6am and 6 pm cannot be employed for night work on, such a day.

iii. Payment of overtime will have to be made to her for night work at the rate of 1 1/2 times the normal rate.

iv. Female warden has to be appointed to see the welfare of female workers who work in the night.

v. No female can be employed for more than 10 days after 10 pm in the month.

vi. A female employed on the day shift cannot be employed to do night work on that day.

vii. Female workers working in the night will have to be provided with rest rooms and refreshments by the employer.

viii. A female worker cannot be employed continuously for a period of more than 41/2 hours without an interval of at least 30 minutes for a meal or rest. Where an interval of not less than 10 minutes is allowed, the period may be increased to five hours.

ix. Overtime work may be done by a female subject to the following conditions.

a) The female is not less than 16 years of age.

b) According to the Amendment Act No 19 of 2002, overtime should not exceed 15 hours a week and 60 hours a month.

Gratuity payment

Question: I was employed in a leading Company in Colombo where there are 100 employees. I retired on 10.03.2009 on reaching 60 years. I have completed 30 years service. I have not been paid Gratuity. My last salary was Rs. 30,000 a month. What should I do? How much should I get as Gratuity? Please advise.

R. Tharmalingam - Wellawatte

Answer: You are entitled to 15 months salary as Gratuity (Rs 30,000x15). This payment should have been paid to you within a month from the date of retirement. You may complain to the Assistant Commissioner of Labour, Colombo regarding non payment of Gratuity.

You have not stated where your Company is situated. We are therefore unable to direct you to the appropriate Assistant Commissioner of Labour. You will be entitled to surcharge for delayed payment of gratuity.

Gratuity payment to personal driver

Question: I am a Director in a Private Company. I have employed a personal driver who has been working with me for well over 20 years. I was paying his salary out of my own funds. He has informed me that he would like to retire by the end of June 2009 due to ill health. Is he entitled to get gratuity under the Payment of Gratuity Act No.12 of 1983. Kindly advise me.

M. Sebastian - Modera

Answer: It is provided in Section 7 of the Payment of Gratuity Act No.12 of 1983 that -

(a) if a workman is employed as a domestic servant or as a personal chauffeur in a private household or

(b) entitled to a pension under a non contributory pension scheme will not qualify for any gratuity. The chauffeur concerned was paid a salary out of your own money and not from the Company. In addition, he is not an employee of the Company. He will therefore not be entitled to any gratuity under the Act. If he has been a loyal worker, you are free to make an ex-gratia payment which is not a legal entitlement.

Testamentary case

Question: In my Birth Certificate my father's name appears as Fernando and my mother's name appears as Kusuma. But they are not legally married. My father died without leaving a Last Will.

My father has however had a legal marriage and has two children by that marriage. They have now filed a testamentary case in the District Court of Colombo. I would like to know whether I could join as a party in the District Court case. Please advise.

J.M. Perera Dompe

Answer: You cannot be a party or join the testamentary case because you are not a legitimate child of your father. Under the Civil Procedure Code Section 525, if the person has died without leaving a Last Will, the defendant or the next of kin should file a testamentary case if the value of the property is more than Rs.500,000.

Legal action against son-in-law

Question: My brother had an affair with a poor girl for which his parents disagreed. So they eloped and got married legally. Both of them are over 18 years of age. However, my parents made a complaint to the Police and thereafter they were arrested. Now our parents are trying to file a case against them. Can they do so?

Warura Hemal, Katunayake

Answer: If both of them are over 18 years of age and legally married, no one can separate them. If your parents are trying to file a case against them, they can seek relief by filing a writ application in the High Court where they are residing.

Provision seeking maintenance for disabled child?

Question: Can a disabled child get maintenance against his parents? Is there any legal aid providing from your organization?

Daya, Dompe

Answer: Under the Maintenance Ordinance Amended Act No 37 of 1999, there is provision to ask for maintenance to a disabled child from their parents. An application for maintenance may be made -

(a) Where such application is for the maintenance of a child or disabled offspring, such child or disabled offspring or by any person who has custody of such child or disabled offspring.

The application for maintenance may be made to the Magistrate Court within whose jurisdiction the applicant or the person in respect of whom the application is made or the person against whom such application is made resides. The Legal Aid Commission has set up disabled persons rights desk those who needs a free legal aid.

Production of glass bottles

Question: I am an employee at a private company engaged in the production of glass bottles. Several workers have not been paid their salaries on time. We made requests from the Management but was told to resign if we can not work as we are told. Please advise as to what cause of action we can take?

Kumarasiri, Panadura

Answer: Under the Wages Boards Ordinance employees have an obligation to pay the salaries on time and if not the Labour Commissioner can take action to recover the same.

Please inform the Commissioner of Labour.

Membership certificate

Question: Please let me know how employees could receive their certificate of membership?

Student from Matara

Answer: An employee must be registered in the Provident Fund within 14 days of joining. For this purpose, a set of forms, "A", "B", & "H" could be obtained free of charge from the labour office located in the vicinity. On perfection of the set of forms, based on the personal information obtained from the employee, it must be duly certified and forwarded to the labour office situated close to his establishment.

The employee will be registered as a member by the Labour Office and the certificate "B" will be forwarded in the employer. The "B" card (Employee membership card) must be handed over to the employee.

In perfecting forms "A", "B" & "H" employer is requested to examine the birth certificate of the employee, his National Identity Card and birth and marriage certificates of the family members and also obtain a clear impression of fingerprints of the employee. This procedure will enable the employee to face no difficulty at the time of obtaining refund of benefits of his contributions.

Marriage Certificate

Question: I got married recently at Baththaramulla. But in my marriage certificate there is a mistake. How can I get this corrected? Please help me?

Anu, Matara

Answer: Since you got married only two weeks ago I would advice you to meet the Registrar of Marriages at the Baththaramulla Divisional Secretariat as soon as possible or else. If you want to amend your Marriage Certificate you have to file a case in the District Court where your marriage was registered.

You have to cite the Registrar-General and the Registrar of Marriage as Respondents in the case. If you need any further advice, please call over at the Legal Aid Commission, Head Office at No.129, Hulftsdorp Street, High Court Complex, Colombo 12.

Rent problem

Question: I rented my house to one of my friends. But I got to know that he is using the premises for illegal purposes. Please let me know if the tenant is using the rented premises for illegal purposes what shall I do?

Samantha Maiyanganaya

Answer: If you are the land owner of the said premises you can take necessary action to prevent his illegal activities. However, under the provisions of the Rent Act, if the tenant is using the premises for illegal purposes, you can make a complaint to the police. In that manner you have a right to terminate his tenancy and give notice to vacate the premises on a given date.

If your tenant fails to vacate the premises on the given date, you can then proceed to file action in the District Court and take necessary steps to eject your tenant, his servants, agent and any person under him.

You also have the right to recover damages until handing over vacant possession of the said premises.

LAC Chairman S.S.Wijeratne addressing Women societies at the Moratuwa Divisional Secretariat.

Elders Act No.9 of 2000

Question: I am a 72 year old woman, suffering from many ailments. I am staying with my eldest son at our ancestral home. Since late my daughter-in-law is ill treating me and physically assaulting me and I can not bear this any longer. Please help.

Kantilata, Maharagama

Answer: You have to take action under the Elders Act No.9 of 2000 to get maintenance from your son. (If you have any other children you can make them parties) Further you can file an action under Domestic Violence Act No 34 of 2005 where you can get redress for harassment by your daughter-in-law.

Wages Boards Ordinance

Question: I am employed as a driver in a private company and I want to know whether drivers of cab services are covered by the Wages Boards Ordinance.

Sham Kandy

Answer: All employees in private sector including Government corporations and co-operative service coming within Wages Boards are governed by this Ordinance. This includes cab services as well and there is a Wages Board established for transport services.

Wayamba Sisu Udanaya

Following the successful school talent competition of the Southern Province in 2008, the Legal Aid Commission is launching "Wayamba Sisu Udanaya 2009" among schoolchildren in the North Western Province.

Students from over 200 national and provincial schools in the Kurunegala and Puttalam Districts would participate in the competition organized under different age categories.

Talent competition will comprise Senior, Junior essay competitions in Sinhala, Tamil and English medium.

School drama competition will be on the theme of "Equal Access to Justice" and the poster competition on topical, social, legal, themes such as eradication of domestic violence, Human Rights protection at village level, protection of elders' rights, elimination of violence against women and protection of child rights.

Representative members of provincial, national and international sponsors have indicated their willingness to support the Wayamba talent competition to encourage youth leadership in this large province consisting of very remote villages. The awards ceremony will be held on July 10, 2009 in Kurunegala.

The following Legal Aid Centers are coordinating the program in Kurunegala, Chilaw, Marawila, Kuliyapitiya, Maho and Polgahawela.

Law Week 2009 organized by the Bar Association of Sri Lanka (BASL) on the theme 'People's rights to social justice' and an exhibition and free legal aid program will be held on June 27 and 28 from 9 a.m. to 5 p.m. at the High Court Complex Hulftsdorp, Colombo 12. Entrance Free

LAC Centres and telephone numbers

Centre Tel. No.

01. Head Office 2433618, 5835329, 060-2070255
02. Tsunami Regional Centre 060-2137153
03. Welikada Prison 2433618
04. Bandarawela 057-2224733
05. Matale 060-2664588/071-4447151
06. Avissawella 060-2362219
07. Ratnapura 045-2226899
08. Negombo 031-5677111
09. Kalutara 034-5628860
10. Gampaha 033-5677998
11. Polonnaruwa 027-2226572
12. Anuradhapura 025-2224465
13. Kandy 081-2388978
14. Kurunegala 037-2229641
15. Galle 091-2226124
16. Hambantota 047-2221092
17. Nuwara Eliya 052-2235260
18. Moneragala 055-2276891
19. Ampara 063-2223496
20. Kegalle 035-2231790
21. Chilaw 032-2222175
22. Akkraipattu 067-5675333
23. Balapitiya 091-2255753
24. Matara 041-2233815
25. Vavuniya 024-2221863
26. Trincomalee 026-5676023/026-2222293
27. Kalmunai 067-2223710
28. Jaffna 021-2224444/077/735910
29. Batticaloa 065-2226359
30. Panadura 038-5677100
31. Kuliyapitiya 037-2284611
32. Mahiyangana 055-2258332
33. Mahawa 037-2275075
34. Horana 034-2265244
35. Matugama 060-2444262
36. Attanagalla 033-2297020
37. Dambulla 060-2682238
38. Deniyaya 060-2428006
39. Mawanella 035-2247272
40. Marawila 032-2254443
41. Warakapola 037-2277075
42. Juvenile Court, Bambalapitiya 2507687
43. Nugegoda 2809068
44. Welimada 060-2577019
45. Kantalai 060-2263091
46. Tambuttegama -
47. Mt. Lavinia 2718708
48. Tissamaharama 047-2237611
49. Baddegama -