Legal aid commission

Democracy our way

Sri Lanka is the oldest practising democracy among the developing countries in the world. There are major aspects of our democracy that need changes and improvement. Wrinkles of democracy are found even in hallowed western democracies.

The popular will in democratic countries can eventually iron out these wrinkles.

Adult Sri Lankans, commenced electing representatives in 1931 with the establishment of the State Council.

Since then, Sri Lankans have voted in 21 major elections at national level including six Presidential Elections and one Referendum in 1982.

More significantly, voters have voted out incumbent governments six times. This is an enviable record not equalled by any other developing country.

However, were Sri Lanka's democratic performances adequately appreciated enough by other long established democracies of the world? Have other countries extended solidarity to this island democracy for her to develop an economic democracy? The answer for both these questions are "NO" The Sri Lankan economy lingered until 2005 with an annual per capita income less than US$ 1000. During the last 4 years the index have passed US$ 2000, a creditable achievement.

But sadly per capita purchasing power of the rupee has not kept pace. Our country has a long way to go before we develop an economic democracy where all our citizens without distinction will have equal opportunity in education and employment.

The public service and the police who are expected to be neutral, non-partisan arbiters should be able to do their duties more effectively.

The Judiciary has a constitutional obligation to ensure that laws are enforced and constitution is respected. The average Sri Lankan who was overwhelmed by disgusting political theatrics looks up to the independent judiciary to restore rule of law as soon as possible.

Election fever will take some time to go down. But it is our duty not to allow the fever to be neglected and develop into pneumonia. For a small island democracy which has bled for over 26 years due to a fratricidal war, we cannot afford any more blood letting.

As Sri Lankans , we have practised democracy our way for nearly eighty years. We are justifiably proud about the long standing record but obvious defects in the electoral system need to be rectified. It is the duty of both winners and losers to agree to do that. We should take a line from Dhammapadha verse 201. in this respect.

"The victory breeds hated
The defeated live in pain
The peaceful live giving up both victory and defeat."

S. S. Wejeratne

Questions and Answers

Co owners property

Question: I am one of seven who inherited a commercial property in 1981 from our father. Since, the property has been leased out with no objections from all the co-owners and the income divided accordingly. Last year my sister filed a partition case, instigated by her husband who is her power of attorney, mainly because none of the shareholders were in agreement with him to develop the property. We are willing to settle out of court as 85 percent of the property is vacant, but the petitioner is not willing. My sister(the petitioner) is not in agreement to us re-renting. Six of the seven co-owners are in agreement to renting as our only source of income has been from this property, for over 20 years. Can the Six co-owners lease it with a lease agreement?

Mrs Samarakkody, Colombo

Answer: Under Section 66 of partition law if there is a partition action pending any alienation which include leases or any agreement by a party would be void. But there is a possibility to make an application to courts to get permission, if all parties agree.

Psycho- Legal Unit

Question: What is psycho- legal counselling?

Nihara, Matara

Answer: Destitute persons who come to seek legal advice from the legal aid commission centres, are faced with social and psychological problems in addition to their legal problem, for e.g young mothers who are subjected to domestic violence, while in need of court intervention to prevent violence against them. They also need psycho legal counselling in order to over come their depression and stress. As lawyers are not psycho legal counsellors, a referral system has been developed where expert help can be obtained in psychological counselling.

Labour matter

Question: My employer forcibly obtained my letter of resignation stating that "I am resigning on my own and that I have no claim what so ever against my employer", I made a complaint to the police in that regard. I have now made an application to the Labour Tribunal stating that my employer threatened forcibly and obtained my resignation.

I am claiming compensation for unjust termination. The respondent in their answer has stated that I resigned on my own and therefore the tribunal has no jurisdiction. My understanding is that they have to justify my termination. Is that correct? Please advise as to who should begin at the inquiry.

Anushka, Matara

Answer: Since the employer has denied termination it is your responsibility to begin the case and establish that your resignation was forcibly obtained and therefore the tribunal has jurisdiction to hear the case and award relief for you.

Type of "LEAVE" Employees of probation and permanent staff are entitled

Question: I would like to know what type of "leave" employees of probation and permanent staff is entitled.

Chamari, Kurunegala

Answer:

Probation Staff

The Shop and Office Employees Act makes no definition between permanent and probationary employees. A Probationer is therefore entitled in the first calendar year of employment on the basis of one day for each complete period of two months service and not 1/2 day leave per month. The Act does not provide for 1/2 days leave.

Permanent Staff

Under the Shop and Office Employees Act, it is in the 2nd calendar year an employee qualifies for 7 days casual leave. The casual leave includes leave for private business, ill health or other reasonable cause.

The Act does not provide for 14 days sick leave.

The employee will qualify for annual leave of 14 days after completing one year of employment with the Employer.

Request of gratuity

Question: I was employed in a garment factory for 10 years and resigned from my employment in November 2009. There are over 200 employees working in the factory. I wrote several letters to the personnel manager requesting for my gratuity, in spite of several remainders I have still not received my gratuity. Can I make an application to the labour tribunal to claim my gratuity? Please advise.

Chandana, Anuradhapura

Answer: Since your employer has over 15 employees in employment you have to lodge your complaint with the Commissioner of Labour for your gratuity. The complaint should be addressed to the Assistant Commissioner of Labour in the district in which your employer's garment factory is situated ,if your employer had less than 15 employees then you should lodge your claim with the Labour Tribunal.

Selling an Intestate Property

Question: Can the children sell the property worth about Rs 3 million which belonged to their father who died intestate and their mother predeceasing the father, without going for a testamentary case?

Gayani, Hambantota

Answer: No. According to the civil procedure code, when any person shall die in Sri Lanka without leaving a will, it shall be the duty of the widow, widower, or next of kin of such person, if such person shall have left property in Sri Lanka amounting to or exceeding in value of five hundred thousand rupees, within one month of the date of his/her death to report such death to the District Court of the district in which he/she shall have so died, and at the same time to make oath or affirmation or produce an affidavit verifying the time and place of such death and stating if such is fact, that the intestate has left property within the jurisdiction of that or any other, and in that event what Court, and the nature and value of such property. For further legal advice you can visit our Legal Aid Centres in islandwide

New Company Act

Question: I am very keen to know as to when the new Companies Act was passed in Parliament and how does it help a single person establish a private company?

Chamara, Boralesgamuwa

Answer: The new Companies Act No.7 of 2007 was passed in Parliament in October 2006 and it is expected to be in operation with effect from May 3, 2007. By this Act there will be no necessity to have a Memorandum of Association. Only the Articles of Association is sufficient to form a new Company. Therefore under the new company act a single person can establish a private company. If you need further information in this regard, you may kindly contact:

The Registrar of Companies "Samagam Medura", Dept.of Registrar of Companies, No. 400, D.R. Wijewardene Mawatha, Colombo 10, Tel.No.011-2689209

Documentations required for all types of passports

Question: Please let me know the documents required for all types of Passports?

Harsha, Wadduwa

Answer: Documents required for all types of passports

I) Form K with Form I.M.35 (B)

These forms are available at the Department's Head Office, Divisional Secretariats, and Post Offices and at the Offices of Grama Niladharies free of charge. They can also be downloaded from the Department's website. The same application forms are issued by Sri Lankan Overseas Missions in different colour so that they can be easily identified. The above mentioned form (I.M.35) should be attested by one of the following:-

(i) An officer of Sri Lanka Administrative Services, Education Administrative Service, Accountant Service, Planning Service, Engineering Service

(ii) Attorney -at -Law

(iii) Qualified Medical Practitioner

(iv) A commissioned officer of Army, Navy, Air Force or Police.

(v) Inspector (OIC) of the Police Station in the area.

(vi) Samurdi Manager/Grama Niladhari/Social Service Officer of the area.

(vii) A Post Master/A Principal of School/A Labour Officer.

(viii) An Estate Superintendent

(ix) Justice of the Peace

(x) Assistant Controllers, Authorised Officers and Enforcement Officers of the Department of Immigration and Emigration.

The attesting officer should have known the applicant for a period of at least six months. Similarly, the verification photograph of the applicant, affixed to the application (IM35(B) should also be certified by the same person attesting page 2 of the application. The seal of the attester should also be placed in the space allocated for it and across the verification photograph.

II) Three photographs of the applicant as per visible. These photographs should be very clear and of good quality, taken within three months of the application submitted.

iii) Existing Passport/Travel Documents: The existing passport/travel document is returned to the applicant at the counter after cancellation of the same and accepting photocopies of their data pages. This is not applicable to first time applicants. It is not compulsory to surrender passports which have already expired their validity period of 10 years. If the previous passport is lost, follow the instructions given below:-

(i) A police report from the nearest Police Station where the passport is believed to be stolen or lost should be presented.

(ii) A penalty of Rs.10,000/- in addition to the normal fees has to be paid. However, the penalty need not be paid if the 10 years validity period of the stolen/lost passport has already expired. If the applicant has lost the passport while abroad and obtained an I.C.O.M/N.M.R.P. on payment of the appropriate fee and the penalty, he/she need not pay the penalty.

(iv) Certificate of Birth which has been duly authenticated in manuscript by the Registrar or his assistants, together with a photocopy, English translations, certified by sworn translators, are not accepted as original Birth Certificates.

(v) National Identity Card (NIC), if the applicant is over 16 years, with a photocopy of both sides. The NIC is returned to the applicant at the Application Receiving Counter, along with receipt of payment for application.

(vi) Marriage Certificate with a photocopy of the same if the applicant is a married female and wishes to have her husband's surname entered in her passport. Similarly, if she is divorcee and wishes to remove her ex-husband's surname from her previous travel document, a certified copy of the divorce decree is required.

(vii) Originals of professional certificates with copies if the applicant requires the profession to be noted in his/her travel documents such as Accountant, Doctor, Engineer, Attorney-at-Law, Architect, Quantity Surveyor, Nurse etc. which have governing professional bodies and stipulated periods of training.

(viii) A letter from the relevant Ministry or Department if the applicant is a staff officer of the Government and if the applicant requires his/her designation to be noted in his/her travel document. Similarly an acceptable letter from the Company is required for Company Executives.

(ix) Driving Licence with a copy of both sides if the applicant requires his/her profession to be noted in the Passport as Driver.

The prescribed fee - should be paid in cash. Payment of fee in the forms of postage stamps, credit cards, etc., is not accepted.

The original Documents mentioned in above Number (III)-(X) will be returned to the applicant after inspection.

Arbitration

Question: Can Arbitration take place in a place other than Colombo? Please explain.

Anura, Colombo 09

Answer: Under Arbitration Act No.11 of 1995, Arbitration of a dispute can take place in any part of the country. However, under the Arbitration Act enforcement application under Section 31 (1) has to be made to the High Court and challenges to arbitration awards under Section 32 should also be made to the High Court.

The High Court referred to in the Act has been defined under Section 50. High Court means the "the High Court of Sri Lanka situated in the Judicial Zone of Colombo or situated in such other zones" as may be designated by the Minister with the concurrence of the Chief Justice by order published in the gazette.

In the circumstances until such time the Provincial High Courts are designated by the Minister with the concurrence of the Chief Justice even if an arbitration take place in a place other than Colombo, the relevant High Court before an application for enforcement should be made in the Colombo High Court.

Fundamental Rights

Question: Can a fundamental rights case be filed in the Supreme Court of Sri Lanka after one month? Please advise me.

Tushara, Anuradapura

Answer: No. Constitution is the supreme law in Sri Lanka. Article 17 read with Article 126 of the Constitution clearly states that the time limit is one month from the date of violation.

Therefore such an action cannot be sustained in the Supreme Court. However if one is prevented or incapacitated from invoking the fundamental rights jurisdiction - e.g. incarcerated or hospitalized, then one month will not begin to run until such is removed.

Alternatively one can go to the Human Rights Commission (HRC) within three months from the date of such violation. If three months have lapsed, HRC will not entertain any complaints as per their new circular which stipulates the time limit as three months.

The Sri Lanka Legal Aid Commission organised a program with the ‘White Ribbon Ambassadors’ to mark the International Day for Elimination of Violence against Women. Here LAC Legal Officer Uma Wijesinghe pinning a white ribbon on UNHCR Country Representative Michael Zwack. Picture by W.H. Chandradasa