Trial by Jury

As a common law country, Sri Lanka recently had a flourishing and vigorous trial by jury system in respect of major crimes. The jury members who were carefully selected from panels constituting of members of the civil community with unblemished character were the final judges on questions of facts in a criminal trial while the presiding Judge was the final arbitrator on questions of law.

The law relating to jury trials remains unchanged in Sri Lanka. The Criminal Procedure Code still provides for trial by jury. However, during the past decade or so jury trials in fact rarely took place. It appears both the lawyers and trial judges and the accused on basis of lawyers' advice have come to dispense with jury trials in favour of Bench trials. The convenience of lawyers and preference of the judges have contributed to the demise of a principle which recognized a democratic judicial process. The citizenry who participated in jury panels contributed to the general legal awareness of the community fortified a hallowed common law tradition.

Criminal offences are those that generally violate the penal law of the land and full authority of the state is brought behind apprehension and prosecution of alleged offenders. The state exercises rights including the monopoly of the right to use violence to maintain law and order. The powers of the state are derived from the people and it is a cardinal principle of democracy that people who surrendered power for the greater good should maintain eternal vigilance to prevent misuse or abuse of the state power. Trial by jury where people ultimately decide on all questions of fact is an example of such vigilance.

There are also arguments against the use of jury systems. India and Pakistan abolished trial by jury in 1960 as the legislators thought the jury system is not suitable to a multi-cultural society as allegations of bias can justifiably permeate the decision making by non-homogenous juries on parochial lines. The detractors of the jury system also contended, the juries constituted from among the untrained citizens can be easily swayed by media publicity of the events. Trial by jury in a society with powerful media can influence decisions and thus the process may be reduced to trial by media. Eventhough, much hype had been made on the code of ethics on crime reporting, in practice as crime is news, competition for the headlines might overtake ethics.

Another argument in favour of Bench trials over jury trials is the fact that the judges are professionally trained people who bring a wealth legal experience to decision making. Unlike the layman in the jury, the bench can more easily comprehend technical evidence given by diverse forensic experts.

On the question whether jury trials should be reactivated in Sri Lanka, the jury is still out there. It is hoped that the jury will retain a positive verdict. If not, the unimplemented provisions for jury trials in the Criminal Procedure Code should be repealed.

S. S. Wijeratne

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Questions and Answers

Deductions from Gratuity

Question: Unless an employee is terminated for reasons covered under Section 13 of the Payment of Gratuity Act No. 12 of 1983, no deductions can be made by the employer from the amount due as gratuity. Yet there are employees whose services have been terminated for reasons other than what has been specified under Section 13, e.g. retirement vacation of post, discontinuance for unsatisfactory attendance, etc but deductions made on various grounds.

Is it in order to make deductions from gratuity payable although the termination is not covered under Section 13 of the said Act?. I await your kind reply

Mr. Goonesekera

Panadura

Answer: The circumstances under which Gratuity can be forfeited are spelt out in Section 13 of the Payment of Gratuity Act No. 12 of 1983.

The question whether the forfeiture of gratuity is done in terms of the Payment of Gratuity Act has been correctly made can be determined by the Labour Tribunal.

However in accordance with Section (10) of the Act when computation of Gratuity is done, deductions can be made if provision is made in specific terms in any agreement between the employer and employee in relation to gratuity - for e.g. employer grants a loan for housing or for purchase of a vehicle where specific provision is made for recovery of balance loan outstanding from gratuity payable on retirement resignation or termination, the employer can recover the balance from gratuity payable.

Can you state who are excluded from Gratuity Act?

Question: Can you please state who are excluded from the Gratuity Act? Your kind reply through your valuable Legal Aid Page would be greatly appreciated. F. Silva

Mahabage.

Answer: The following employees are excluded from the Gratuity Act:-

* Employees in establishments, which have less than 15 workmen.

* Employees, who do not have five completed years of service.

* Personal chauffeurs and domestic servants.

* Employees, who have more favourable gratuity under a collective agreement.

* Employees in Government owned business undertakings, Cooperative societies and local authorities.

* Employees, who are entitled to any non- contributory pension scheme.

Gratuity payable by local authorities?

Question: I want to find out whether gratuity is payable by Local Authorities? M. Farook

Wellampitiya.

Answer: In relation to "Local Authority", there is confusion. This is a grey area in understanding the Law. The definition of the word "employer" specifically excludes a "local authority" but the definition of the word "industry" includes employment in local authority. What is the correct position in relation to a local authority? The answer is - It is not covered. Why? The explanation is that the liability is imposed only on an "employer". Section 5 (1) states "Every employer, who employs or has employed fifteen or more workmen is liable to pay gratuity". In short, the employer, who employs in any industry, is liable.

Enforcement of order

Question: My husband is having a lucrative job but he drinks with his friends daily. After coming home he quarrels with me. He also disturbs the children. I filed a Domestic Violence case against him and obtained a protection order. Please let me know as to what remedial action I could take, if he does not comply with the interim order. P. Shiromala

Mahara.

Answer: Under the Domestic violence Act No 34 of 2005, the legal remedy available to you is that he could be punished under the law if he does not comply with the order given by court. Section 20 of the Domestic Violence Act states -

"Where respondent against whom an interim order or a protection Order, as the case may be, has been issued and has failed to comply with such order, such respondent shall be guilty of an offence and shall be liable on conviction after summary trial before a Magistrate to a fine not exceeding ten thousand rupees or to imprisonment of either description for a term exceeding one year or to both such fine and imprisonment".

Relevant declaration form is Registration B 372 Birth Certificate

Question: In my Birth Certificate, my father's year of birth is incorrectly stated. How can I get it corrected? Is it really necessary to do that? Looking forward to your kind response through the Legal Aid page in the Daily News. Manuri,

Colombo

Answer: You can amend the particulars of your fathers detail in your birth certificate without going to courts . Particulars of father may have been incorrectly stated in the birth certificate of the child due to inaccurate provision of particulars of father at the time of registration of birth. Such inaccurate information may be corrected.

If you want to amend it you have to submit the relevant information to sport with your birth certificate . you have to get the relevant application - namely Form B 372 from the divisional sectaries office in your area and hand it over to the divisional sectaries office where the birth has been registered.

Project proposal and EIA process

Question: I am living in a coastal area and have decided to start a hotel. I understand that I have to get prior approval of the Central Environment Authority and have to submit the project proposal to them. Please advice me on the following:-

(a) What is the importance of having a project proposal?

(b) What does the EIA Report look like?

(c) How do I know whether my project proposal will be required to go through the EIA process? S.Duminda

Kesbewa.

Answer: It is always advisable that before you start a business based on the environment, you to have to get the prior approval from the Central Environment Authority (CEA). You have to submit the EIA Report to them.

Environment Impact Assessment (EIA) is a simple process of predicting the potential impacts of development activities on the natural and social environment.

EIA also suggests measures to prevent or minimize negative impacts and to enhance positive impacts. EIA ensures sustainable investment for developers and a livable environment for the people. In 1981 EIA was made a legal requirement for projects within the coastal zone and since 1993 has been made mandatory throughout Sri Lanka for prescribed development projects.

It is a relatively short and concise document (may be about 100 pages) written in easy to understand language that describes the following:-

* the details of the proposed project including all components.

* the existing environment of the proposed project site.

* the positive and negative impacts of the project.

* proposed mitigation measures.

* Reasonable alternatives.

* Monitoring programme.

Past EIA reports are available at the Central Environment Authority Library for reference. You can use it for your easy reference.

With regard to your project proposal, you can verify with the CEA, or refer to the Government Gazette No.772/22 of June 24, 1993 and No.859/14 of February 23, 1995.

The CEA may provide you with a Basic Information Questionnaire to submit essential information about the project, in order for the CEA to determine the above.

If the project is located in the North Western Province, you should contact the North-Western Provincial Environmental Authority.

According to your question, it is clear that your project is located within the coastal zone. Therefore you should contact the Director, Coast Conservation Department. The coastal zone comprises 300 meters landwards from the high waterline and 2 km seawards from the low waterline. In the case of estuaries and other water bodies 2 km distance from the water area when you draw a line perpendicular to the mouth of the water body.

If the project is located within one mile from the boundary of a National Reserve you should contact the department of Wild Life Conservation. Kindly note that only the prescribed projects are required to go through the EIA process. If you need further advice, you can contact -

The Central

Environmental Authority

No. 104,

"Parisara Piyasa"

Robert Gunawardena

Mawatha

Battaramulla.

Tel No. 01- 2876642

Fax No. 01 - 2872347

E-mail [email protected]

Authorities responsible for protection of environment

Question: Please let me know the relevant Authorities who are responsible to overcome public nuisance.

S.Wasanthi

Negombo

Answer: As you may be aware the World Environment Day (WED) is commemorated yearly on June 5, to raise worldwide awareness on environmental protection and encourage political action. The relevant Authorities who are responsible for protection of the environment are -

(1) The Central

Environment Authority

No. 104, "Parisara Piyasa"

Robert Gunawardena Mawatha

Battaramulla.

Tel No. 01- 2876642

Fax No. 01 - 2872347

E-mail [email protected]

The Central Environment Authority has wide powers to protect the environment and take necessary actions to overcome public nuisance.

(2) The Police

Department.

Police Headquarters

Colombo 1

The Police Headquarters has established a separate section to deal with environment complaints and each police station has a separate section to deal with environment matters.

(3) Local Authorities-

Urban Council

Municipal Council

These Local Authorities, by their Ordinance and Acts are given powers to take action against public nuisance - for e.g.

Pradeshiya Sabha Act No .15 of 1987, Section 100-107,

Urban Council Ordinance No 61 of 1947, Section 83,

Municipal Councils Ordinance 29 of 1947, Section 83 stipulates the

powers of the Local Authorities to deal with public nuisances.

(4) Different Departments who are working with the environment issues -

e.g. Coast Conservation Department, Forest Department etc.

Environmental protection licence

Question: I was running a soap industry for the last two years. My Environmental Protection Licence (EPL) has been cancelled by the Central Environment Authority last month. What shall I do? Please help me.

S.D.Priyantha

Ratmalana

Answer: If your Environmental Protection Licence has been cancelled, you can't go to courts. You have to make an appeal to the Secretary of the Ministry of Environment. He will hold an inquiry, after summoning all the parties. If the decision of the Secretary has violated your rights, you can thereafter go to the Court of Appeal against his decision.

Water supply unsuitable for human consumption

Question: We have a problem with our water supply scheme in our area. Our water supply scheme is unsuitable for human consumption and consumers have lodged complaints to the police in our area.

It is muddy, in some days and it is greyish with lots of floating particles. The water is sometimes murky and smelly. We have water cuts on Mondays and Fridays. We have collected samples of the water and appealed to the relevant Authorities.

Do we have legal recourse? If so, please help us through your Legal Aid Page. P.Arawinda

Alawwa.

Answer: In the first instance you have to lodge a complaint to the relevant authority in your area. If the relevant authority fails to take any remedial action, then you have the right to make a complaint to the Local Authority as well as to the Central Environmental Authority regarding the matter. If no action is taken, you can file a writ application against the particular authorities.

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Birth Certificate:

Questions: We are a Social Organization. When we deal with family problems, we find that there are so many disputes regarding birth certificates. Please let me know how to insert alter particulars relating to father, in a birth register ? P. Somapala, Tangalle

Answer: Particulars of the father may have not been stated in the birth certificate of the child, if the child was born before the marriage of parents. Nevertheless, if the parents had been married after the child was born, particulars of the father may be entered in the birth certificate of the child. Particulars of father may have been incorrectly stated in the birth certificate of the child due to inaccurate provision of particulars of father at the time of registration of birth. Such inaccurate information may be corrected.

However, for amending the particulars relating to race of father in the birth certificate of child, an application should be made to the District Court under the Birth and death registration ordinance.

One of the following persons should make an application to the Divisional Secretariat to which the place of registration of birth belongs to, for insertion or alteration of particulars of father of a birth certificate.

a. One of the parents.

b. Lawful guardian, if parents are not living.

c. If the owner of the birth certificate is over 18 years of age, that person himself/herself.

A certified copy of the birth certificate should essentially be attached to the declaration and the following documents should be produced in addition.

a. Marriage certificate of parents.

b. Important documents to substantiate the particulars of father.

c. Other documents in proof of that the child related to the birth certificate belonged to the parents concerned.