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Legal aid commission

Compiled by Kalani A. Medagoda, A.A.L.ess to justice

(Continued from last week)

Extracts from the speech delivered by Chief Justice Asoka de Silva at the Legal Aid Training Program - Second part

Legal Aid and Professional Bodies

Legal aid was initiated by the Law Society and Bar Council and regularized by Act No.27 of 1978 after the amalgamation of the two professions in 1974. It is an independent statutory organization set up to give free legal aid to underprivileged section of the society. It had a humble but an active and vibrant during 1986/7/8, where the countrywide organized network was active with the government assistance of Rs.150, 000. Currently, it is heavily funded by the State and foreign donations and to their credit running 72 branches which still is grossly inadequate due to the unprecedented demand by the public for help. The Legal Aid Foundation run by the Bar Association needs new blood and experienced hands with a vision and exposure as it still primitive stages on the area of access to justice via legal aid. It is the duty of the Bar association to organize around 9000 lawyers as active members of the team. It is a pity that the Bar association is struggling to run the Legal Aid Foundation for want of funds. It is the duty of every lawyer to work hand in hand with the Bar Association in the development and functioning of the delivery of legal aid. Bar Association should learn from the previous glory and the good work by the Legal Aid Commission and improve the Legal Aid Foundation which is the responsibility of the legal profession in the interest of the lawyers and the Nation.

If the public lose faith in the legal system due to delay cost and corruption, in delivery of justice, the public will take the law into their hands and as a result it is the legal profession and the public will be the main casualty.

It is the duty of the Bar to take steps in the delivery of legal aid with the help of the Executive and the Judiciary. Citizens are grateful to the Bar and Judiciary in delivery of free legal aid which is unique to the legal profession.

In other professions there is no organized professional help for needy. Duty Solicitor System prevalent in the United Kingdom is an ideal system for us to follow.

Every Court has duty solicitors appointed and in police stations lawyers to assist litigants at any time of the day funded by legal aid. Though we are short of funds other devices could be adopted to meet the demand of the citizen in delivery of legal aid. State may find it difficult to find the scheme, but it is time the BASL take the challenge to launch in voluntary basis and those who are involved in Pro Bono matters can be looked after otherwise as in the United Kingdom, where such services are considered for judicial appointments, promotions and reorganization of services such as Honorary appointments and designations by the State, Profession and international bodies.


Strong Arbitration Law pre-requisite for foreign investment - CCC President Jayampathi Bandaranayake

Ceylon Chamber of Commerce (CCC) President Jayampathi Bandaranayake addressing the fifth Diploma awards ceremony in Commercial Arbitration at the BMICH said that a series of recent judgements have created a sense of uncertainty in the business community relating to the security of investments, these doubts need to be cleared to foster trade and commerce in the country.


A diploma prize winner at the fifth awards ceremony in Commercial Arbitration Sharmeela Rasool receiving her award from ICLP General Secretary S.S. Wijeratne. Mrs. K.C. Kamalasabeyson was among the distinguished participants at the awards ceremony. (Right) A section of the gathering.

ICLP General Secretary S.S. Wijeratne complimented the calibre of the Diploma Holders in International Commercial Arbitration. From the very inception they were drawn from among senior professionals such as engineers, architects, building quantity surveyors, accountants and some lawyers. The maturity and aptitude shown by this year's batch of diplomates cannot be as all of them completed their examination with flying colours.

The need for a higher Diploma in commercial arbitration in keeping with international norms and standards was felt by the ICLP Council after few years of the functioning of the ICLP Institutional Arbitration Centre in 1995. As Arbitration has replaced litigation as the preferred method of international commercial dispute resolution during the past decade, it became imperative that a high ranking Diploma Course be attached to the ICLP Arbitration Centre, not only to prepare pools of potential Arbitrators but create an international form for discussion on the emerging trend in Global Arbitration.

The ICLP Arbitration Institute had attached the best faculty from among the judges of the Supreme Court here and abroad the leading practitioners of Arbitration and the respected academics from the universities. Most of the faculty members are internationally recognized Arbitrators and resource persons also participate in international arbitration events on a regular basis thus infusing the Diploma students with the latest trends.

In these challenging times the different arms of the commercial world whether be manufacturing, exporting or dispute resolution need to hold hands together.

The Ceylon Chamber of Commerce in the display CSR commitment set up the ICLP. In this context it is traditional for me to mention the founder Chairman of the ICLP Chandra Wijenayake and legal eagles, K. Kanag-Isvaran and U.L. Kadurugamuwa for the pioneering work rendered to the ICLP and to the commercial development of the world.

******

Questions and Answers

Registration of logo before starting a business

Question: I have decided to start a cloth business. I would like to register the first letter of myself and my husband's name with a beautiful design in all my packing bags of my garment business. I want to know whether is it necessary to register this logo and the name before starting my business? Please advise me.

Answer: Under the Intellectual Property Act No. 36 of 2003, it is advisable to register the logo at the under mentioned address, before you start your business:-

National Intellectual Property
Office of Sri Lanka,
"Samagam Medura",
3rd Floor,
No.400, D.R.Wijewardene Mawatha,
Colombo 10
Tel.No.2689368 Fax No.2689367

Email:[email protected]
 


Can I insert father's name in child's birth certificate?

Question: I have a child but not from a valid legal registration marriage. In the child's Birth Certificate, the father's name has not been mentioned. I filed a maintenance case against my husband and the Judge ordered him to do a DNA test. I received the judgment in my favour stating that my husband is this child's father. Subsequently, my husband also gave his consent to include his name as the father in the child's Birth Certificate. Is it necessary to go to courts again to mention the father's name in the child's Birth Certificate. Please help me. M.Anushika, Mawanella.

Answer: As you have already received a judgment from the Magistrate's Court proving the paternity of the child, it is not necessary to go to the courts again. It is enough for you to prepare an affidavit stating that he is the father of the child and accordingly you want to amend the child's Birth certificate. You also have to get a B9 Application Form from the Divisional Secretariat's Office in your area. Having filled the Application Form, you should hand over it to the Additional Divisionary Secretary's Office where the child was born. Then they will help you to amend your child's Birth Certificate.


Practising as a Notary Public

Question: I am an employee attached to the MPCS Limited, Eravur. After I got through the Final Examination of Notary Public, I obtained the warrant from the Department of Registrar-General to practise as a Notary Public and asked to swear in at the High Court, Batticaloa but I am refused to do so saying I would be allowed to take oaths either after my retirement or resignation from the Institution. But I understand that there are many Government servants in practice as Notaries Public while they are serving in different parts of the island.

I shall be very much obliged if you could kindly clarify this matter and let me know through your Legal Aid page. M.Issadeen, Eravur

Answer: If you want to practise as a Notary Public, you have to get prior approval from your Department and inform the Registrar-General accordingly.


Prescriptive rights

Question: I shall greatly appreciate your clarifications on the following issues.

1) Can Prescriptive Rights be claimed by a party over undivided and co-owned property (land)?

2) In a seven acre undivided & co-owned property, can many parties separately claim, prescriptive rights over various parts of such property (not in its entirety)?

3) Where such undivided & co-owned property is situated within a Municipal Limit, can Occupiers, who are not co-owners, put up constructions?

4) Usually, for any Construction purposes, it requires the authorization of a Building Permit from the respective Municipality. Can the Municipality authorize Construction to individuals who claim Ownership (by prescription or otherwise) on such undivided & co-owned property?

5) Where such Occupiers have put up Constructions, perhaps by obtaining Municipal Approval on false pretexts or forged 'Title Deeds' etc., can a Co-owner who has instituted a Partition Action, officially obtain copies of any Title Deeds or its particulars that may be recorded in the Abstract of Title Register of the Municipality?

6) Should such request be made through the District Court or can the Attorney-at-law for the Plaintiff obtain them from the Municipality?

Answer:

1. Yes

2. Yes

3. Technically they cannot but constructions can be done subject to be fined.

4. If the other co-owners give their consent, it can be done.

5. Yes

6. Yes.


Testamentary Case

Question: My father died on May 1, 1960. The monies due to him were sent to the Courts. It was after a Testamentary Case in the Hatton DC Courts, we were able to collect our shares from the Kandy Kachcheri in 1969.

At the time the payments were made the interests were not included, in addition my youngest sister did not get her share as she was then a minor. I had approached lawyers in Hatton to get these monies but of no avail. They collected money from me as charges but did not do anything.

May I please request you to kindly advise me as to how the money lying in the Courts could be collected.

Answer: You have to file a motion in court explaining the situation. The court will thereafter consider the matter but the interest component will be small


Dual citizenship

Question: I am a citizen of Sri Lanka by registration. I wish to obtain Dual Citizenship. To enable me to obtain the same, could you kindly let me know the documents required to be submitted by me. Thanking you for your kind reply.

Answer: The documents required for Dual Citizenship are -

* Applicant's Original Birth Certificate and a copy.

* If the Applicant is a citizen of Sri Lanka by registration, the relevant certificate and a copy.

* If Applicant is married, the Marriage Certificate and a copy.

* Applicant's Foreign Citizenship Certificate/Foreign Travel Documents/Permanent Residence Visa and a copy of the same or a letter from the Government of the country of domicile, confirming that citizenship has not been granted to the applicant/Applicant's family as yet.

* Applicant's current and/or previous Sri Lankan Passports and copies or an affidavit.

* If applying under professional category, Applicant's educational/professional certificate and a copy(minimum a two year Diploma/Trade Certificate from a recognized Institute).

* If applying under wealth category, original of the documentary proof of Applicant's assets such as lands or other immovable properties in Sri Lanka worth of Rs.2.5 Million or above and a copy. Deed Valuation report extract and title report for the same should also be submitted.

* If applying under 2.5 Million category, original of the documentary proof minimum one year Fixed Deposit in a Bank in Sri Lanka of an amount not less than 2.5 Million.

* If applying under age category, applicants over 55 years of age original Birth certificate and a copy should be submitted.

* An Applicant who applied under NRFC/RFC/SFIDA/Dual Citizenship Accounts category, must submit a letter stating his/her willingness to do so under that category. After the approval is notified the original/copy (certificated by the bank) of the deposit certificate should be submitted.

* An Applicant who applied under Treasury Bonds TIERA and TIERA-D category, must submit a letter stating his/her willingness to do so under that category. After the approval is notified the original/copy (certified by the bank) of the deposit certificate should be submitted.

* If the documents referred to above are submitted without originals, they should be attested by the Sri Lankan Mission accredited to that country or the nearest Sri Lankan Mission or Consulate of the country of domicile or Solicitor or Justice of Peace in the country of domicile.


Appellate and Revisionary Jurisdiction

Question: Please let me know the legal context of Appellate and Revisionary Jurisdiction. I await your early response in this regard.

Answer: The First Appeal and/or revision are/is preferred from the judgments and/or orders of the original courts to the Court of Appeal and the second appeal to the Supreme Court is made possible only with leave to be granted. Article 128 of the Constitution sets out the manner and granted. Article 128 of the Constitution sets out the manner and grounds upon which an appeal lies to the Supreme Court from the Court of Appeal.

1. An appeal lies to the Supreme Court from any final order, judgment, decree or sentence of the Court of Appeal whether civil or criminal which involves a substantial question of law. In this matter, the Court of Appeal has to grant leave to appeal to the Supreme Court ex mero mottu or on the application of the aggrieved party.

2. The Supreme Court too can directly grant leave to appeal. That is called Special by the Supreme Court from any final or interlocutory order judgement, decree or sentence whether civil or criminal where the court of Appeal has refused to grant leave to appeal to the Supreme Court or where in the opinion of the Supreme Court the case or matter is fit for review by the Supreme Court.

3. The Supreme Court may also grant leave to appeal in every matter or proceedings in which it is satisfied that the question to be decided by the Supreme Court is of public or general importance.

The Supreme Court Rules, 1990 and/or Court of Appeal (Appellate Procedure) Rules, 1990 shall appropriately apply to the procedure in applying these applications.

Thus, the Supreme Court has become the highest and superior Court in Sri Lanka. See Articles 118 to 136 of the 1978 Constitution.


Application to tribunal to call a witness

Question: I was employed as an Accountant for 30 years in a leading Company in Colombo. I was asked to retire on reaching the age of 55. I filed action in the Labour Tribunal. The case was closed by me.

My case would fail if I do not call a witness to prove that the Company has employed others beyond the age of 55. I made an application to Tribunal to call a witness. The Company is objecting to my application. Please advise me on the Law. M.Niyaz, Modera.

Answer: There is no procedure laid down for proceedings before a Labour Tribunal like the Civil Procedure Code and the Criminal Procedure Code. The Industrial Disputes Amendment Act No 32 of 1990 provides for making regulations to prescribe the procedure to be observed by a Labour Tribunal. Up to now no regulations have been made. The Tribunal formulates the procedure to be followed by it.

The Tribunal's duty under the Law is to make all inquiries it considers necessary and make a just and equitable order. In the exercise of its duty it can permit you to call a witness.

This question was decided by Supreme Court in Shahul Hameed Kihar Mohamed vs W.M. Gunapala S.C 49/93. H.C Uva 29/91 LT Badulla No 5/15113/83 reported in Labour Tribunal Journal Vol 1 part 9 pages 107-111.In this case the Labour Tribunal permitted the workman to call a witness after each party had closed the case for the purpose of proving that the applicant was employed as a watcher. The High Court in appeal stated that the Tribunal was right in permitting the workman to call a witness after the case was closed. In the appeal to Supreme Court J/Kulatunge stated as follows

"I am also of the view that the conduct of the Tribunal in permitting the respondent (workman) to call evidence after he had closed his case is unobjectionable. It is the duty of the Tribunal to hear all evidence without being hamstrung by technicalities. The calling of additional evidence has not caused prejudice to the appellant."


Benefits under ETF

Question: When is an employee entitled to payment of benefits under the Employees' Trust fund? You kind advice is greatly appreciated.

Answer:

i. on termination of employment.

ii. An employee is not entitled to withdraw monies more than once in a period of five years.

iii. The five years rule will not apply when employment is terminated due to disablement arising out of accident or disease.

Disablement means cessation of employment by reason of a permanent and total incapacity for work and certified by a Registered Medical Practitioner to be unfit for work any longer for that reason.

iv. On death of an employee the monies lying to the credit of the employee is paid to a nominee and if there is no nominee to the next of kin.

v. The five year rule does not apply.

(a) When a member is over 60 years of age.

(b) When satisfactory proof is shown to state that he is leaving Sri Lanka with the intention of not returning or for permanent residence abroad.

vi. When an employee takes up pensionable employment,

(a) In Public Service.

(b) Local Government Service.

(c) District Service.

He is entitled to the monies lying to his credit. (Sec. 23(2) of the Amendment Act No.47 of 1988.)


When was Employees' Trust Fund established?

Question: When was the Employees' Trust Fund established? What was the date of commencement of liability to this fund? I am very much keen to know this answer through your valuable Legal Aid Page.

Answer: This fund was established by the Employees Trust Fund Act No 46 of 1980. Liability to contribute to the Fund commenced as follows:-

(i) From 1/3/1981 to employers employing not less than 150 persons.

(ii) From 1/9/1981 to employers employing 50 employees or more.

(iii) From 1/1/1982 to employers employing one employee or more.


How to trace a Power of Attorney

Question: I wish to know whether it is possible to trace a Power of Attorney from the records at the Registrar's Office, if it is lost/misplaced, provided the month and year of issue is known? How does one get about it and what is it likely to cost. N K Rajan, Colombo 3

Answer: If you sign a Power of Attorney, the Notary who attested the Power of Attorney will give three copies. The 1st copy will go to the Registrar-General's Department with a photocopy of the original. The second copy will go to the Land Registry where the Notary has been registered. The third copy is the protocol which is kept under the custody of the Notary. If you know the number, date and the name of Notary, you can apply for a certified copy from either the Registrar-General's Office or from the Land Registry where the Notary has registered. The relevant stamp duty has to be affixed when applying for certified copies.

 

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