Legal aid commission

The law pertaining to bail

The following is the first part of the contribution made by Additional Solicitor General Palitha Fernando at the Judicial Colloquium of High Court Judges held on February 6 and 7.

The term bail is defined in Black's Legal Dictionary as the process by which a person is released from custody on the undertaking given by a surety or on his or her recognizance to appear in a future stage of the proceedings of court. Bail could be granted to a suspect during the stage of investigation or to an accused whose case is pending before court, or even to a person who has been convicted, on his preferring an appeal against his conviction.

Arrest and detention of a suspect involves the interference with his right to personal liberty. Therefore, it is necessary that detention of a suspect is done only in accordance with the procedure established by law and also only to the degree permitted by law. The granting of bail in the circumstances is a salutary provision enabling a person suspected or accused of an offence, but yet presumed innocent by law, to be released from detention. The foundation for the purpose of granting a suspect bail is the presumption of innocence guaranteed by article 13 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

When speaking of bail, terms such as Surety Bail, Cash Bail, Certified Bail and Personal Bail are quit familiar. All these terms describe the nature of the bail bond upon which a person is released from custody. Surety Bail is where a person is released on a Surety entering upon a bond undertaking to secure the presence of the person released when required. Cash Bail is where it would be necessary to make a cash deposit along with the undertaking to secure the presence of the persons released on bail when required.

Where a person is released on cash bail it would not be necessary to have the bail bond signed by sureties. However, there can be an order granting bail on a combination of any two or more of these bonds.

Where a suspect is released on personal bail the undertaking to appear in court is given by the suspect himself. Certified Bail is where a certificate such as a deed would be deposited in court to the value of the Bail Bond. Personal Bail is where the person released signs a bond to pay the amount indicated in the bond if he fails to appear in court as required.

When a person is released on bail it is customary to make such release subject to certain conditions commonly referred to as bail conditions. Impounding of the Passport, prohibiting the person from residing in a particular area, ordering the person to report at a designated police station periodically are some such conditions generally imposed. Non interference with the witness and the process of justice are conditions that are in force even if not mentioned in the order granting bail.

Reasons for releasing persons on bail

There are several reasons for which a suspect is remanded to Fiscal custody pending investigation or trial. They are.

a. To facilitate investigations.

b. For the protection of the suspect.

c. To prevent the suspect causing harm to any one else.

d. To prevent the suspect from interfering with the witnesses.

e. To ensure the presence of the suspect at the trial.

Through the above mentioned reasons are the generally accepted reasons for remanding a suspect to Fiscal custody, the Bail Act has brought in a further reason, namely, consideration of the gravity and the public reaction to the offence and the possibility of public disquiet arising out of it.

Remanding a suspect into fiscal custody could never be considered a punishment.

It should always be born in mind that the suspect is a person presumed to be innocent and that the order remanding such person is an interference with that person's liberty guaranteed by Constitutional provisions as a Fundamental Right.

However it should be noted that some statutory provisions have brought in a penal flavour into some legislation providing for the remanding of suspects until the conclusion of the trial, or by providing special procedures for the purpose of securing bail for persons suspected of having committed such offences. Presumably the intention of the Legislature has been to strongly discourage the commission of such offences.

The Bail Act No. 30 of the 1997 (Bail Act) provides that the guiding principle of the Bail Act is that the granting of bail should be the rule and that the refusal of bail should be the exception.

Therefore, it would be necessary to release persons on bail unless remanding of such person is extremely essential. It would not be appropriate for the police to request the remand of a suspect without any reasonable ground as set out in section 14 of the Bail Act. Nor would it be appropriate for Magistrates to remand a suspect merely because such a request is made by the investigating authorities.

It should be borne in mind that when a person is released from remand custody and released on bail, the responsibility of producing such person in court would be on the Sureties, therefore, the person released on bail would be entrusted to the custody of his Sureties, monitored by Court.

A Court releasing a person on bail would be entitled to impose conditions subject to which the persons be released on bail. Non interference with the witnesses, reporting to the investigating police station during a specified period are some such conditions.

To be continued

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Judicial Colloquium

Chief Justice Asoka N de Silva was the Chief Guest at the Judicial Colloquium of High Court Judges held at the Galadari Hotel on February 6 and 7. Fifty seven High Court judges exercising criminal, civil appellate and commercial jurisdiction participated.

The theme of the colloquium was 'Administration of Justice in an ever lasting Enviorenment'.

The colloquium was organized by the Legal Aid Commission and supported by Equal Access to Justice Program of the UNDP.

The Following made valuable contributions:

1. Chief Justice J.N.A. de Silva on 'Role of the Judges'. 2. Hon. Attorney General Mohan Pieris PC 'Criminal Law Reforms in post conflict Sri Lanka'. 3. Justice H.S. Yapa on 'Law Relating in Bail'. 4. Hon. Justice Nissanka Udalagama on 'Interim Injunction'. 5. Justice Nimal Gamini Amaratunga on 'Some Aspects relating to Appellate Jurisdiction of the High Court'. 6. Palitha Fernando,Additional Solicitor General on 'Criminal Procedure'. 7. S.S. Wijeratne - Chairman Legal Aid Commission on 'Legal Aid in Administrating Justice and alternative for Sentencing'. 8. Malkanthi Wicramasinghe - Secretary Ministry of Constitutional Affairs and National Integration.

Questions and Answers

Certificate of proceedings

Question: Can I obtain a certified copy of the proceedings in a Magistrate's Court by post?

M. Tharindu

Bandarawela

Answer: There are some practical difficulties in obtaining a certified copy by post. First of all you have to give a letter (Motion) stating as to what are the proceedings you need giving details of such proceedings, the Registrar minutes the contents of your letter and submit it to the Magistrate for approval. Once the Magistrate order to issue the particular proceedings, the Registrar after counting of the pages or asks you to make payment. After you make payment only, arrangements will be taken to type or photocopy the said proceedings.

After making payment, the Registrar agrees to send it by post, you can tender a stamped envelop for that purpose. However, it is advisable for somebody to go the Registry of the particular Court to facilitate to this part of work.

Infanticide

Question: Please let me know what is infanticide? What is the legal aspect of infanticide in Sri Lanka?

K. Asokaratna, Ja-Ela

Answer: Infanticide is the killing of an infant (age 1yr) by its biological mother who is of unsound mind and disturbed due to effects of pregnancy, child birth or location.

Infanticide is a problem that is becoming an epidemic.

We can concern itself with the issue of a child murder. It is a problem that we don't hear much about unless particularly gruesome instance of it occur - instances involving blood, broken bones, torture and if somebody is sufficiently bothered to take a close look into the possibility that violence or other wilful acts were the causes of the death of the child.

Under the law it can be considered as a culpable homicide not amounting to murder. Exception 5 of Section 294 of the Penal code.

Poya day holidays

Question: I am employed as an Accounts Clerk in a Company in Kalutara. Please clarify the position in Law in relation to Poya Day

1. Is the employer required to grant the Poya day holiday?

2. What is the payment to be made if I work on the Poya day for the normal period of employment?

3. Is it necessary for the company to obtain permission from Commissioner of Labour to employ me on a Poya holiday? 4. What happens when the Poya day falls on a mercantile holiday or weekly holiday?

P. Ratnapala Kaluthara

Answer: You have covered all aspects of Poya day in your question but you have not stated whether you are a monthly paid employee or daily paid employee. In case, you are a monthly paid employee, you will have to be paid half a day's salary for working on Poya day.

If you are a daily paid employee, you will have to be paid one and half day's salary.

Answer to Question No.01 - Yes with pay

02 - This question has already been answered

03 - No

04 - No additional holiday shall be allowed.

Intoxication during working hours

Question: The Company in Colombo where I am employed as Cashier has imposed a fine of Rs. 250 on me for intoxication during working hours. Is this legal? Can the Company deduct Rs. 250 from my salary of March 2010?

G. Jayantha,

Sapugaskanda

Answer: A fine can be imposed for intoxication during working hours. It is an authorised deduction under the law. The aggregate amount of deduction made at any one time as fine shall not exceed five percent of your remuneration for the period during which the fine is imposed.

Sexual harassment

Question: I am working in a private company as a clerk. In our company there is a person who is always harassing me by using bad words in front of others. I complained to the authorities about this problem. But they never took any action regarding my complaint under the law? What is the relief available to me under the law.

Anusha

Kandy

Answer: You can seek relief by making a complaint with the nearest police station and the police could thereafter file a case in the Magistrate's Court under the penal code on the ground of sexual harassment.

Penal Code Section 345 states that: "Whoever, by assault or use of criminal force, sexually harasses another person, or by the use of words or actions, causes sexual harassment and shall on conviction be punished with imprisonment of either description for a term which may extend to five years or with fine or with both and may also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for the injuries caused to such person."

If you need any help please seek legal help at the nearest legal aid centre in your area.

Land Development Ordinance

Question: My father has a land which is given under the Land Development Ordinance. He is very old now. Please let me know who can be nominated as the successor of the Land. What happens if he fails to nominate a successor?

Achala

Mirihana

Answer: Yes under the Land Development Ordinance your father who is the Owner of the land can nominate the spouse or children or blood relations.

In case where the successor has not been nominated and his death is prior to the nomination the final decision will be taken by the Land Commissioner General. If both male and female children are there preference should be given to the male children.

If the father has several male children succession will be given to the eldest son. If your father has only female children ,succession will be given to the eldest daughter. The law does not permit to nominate minors as successors.

EPF Act

Question: Is there any requirement for an employee under the EPF Act to notify on his leaving employment.

Is there any obligation for the employer to notify when an employee has ceased to be employed?

S. Ajantha

Kurunegala

Answer: Notification by employee in his leaving employment has to be done on Form 'E' Notification by employer that the employee has ceased to be employed has to be done on Form 'F'.

Labour contribution

Question: The Company in which I am employed notified the Commissioner of Labour on 01.01.2001 that it would contribute 15 percent towards my EPF. I too agreed for a contribution of 10 percent from my salary.

The company has sent a Notice to the Commissioner of Labour on 01.06.2009 stating that it is not possible for it to contribute 15 percent as it is in financial difficulties. Can the Company do this under the law?

D.R. Samanthi

Kottawa

Answer: No. Section 11 of the EPF Act No. 15 of 1958 specifies that no revocation can be done.

Entitlement of gratuity

Question: What are the categories of employees not entitle to receive gratuity?

Gunathilaka

Ampara

Answer:

I. Employees in establishments which has less than 15 employees. These employees can apply to the Labour Tribunal for gratuity on their resignation from employment or termination of their employment by the employer.

II. Employees with less than Five years continues service

III. Domestic servants and personal chauffeurs

IV. Employees in Cooperative Societies Local authorities and Government owned business undertakings.

V. Employees who are entitled to a non- contributory pension

VI. Employees covered by Collective Agreements which contain more favourable gratuity.

Cheque returned due to lack of funds

Question - I have a business friend. He gave me Rs. 100.000 by cheque to be returned. This was part of the business agreement. When I deposited the cheque to the bank, the cheque got returned due to lack of funds in the bank. I phoned him several times but he refused to return the money back. Please let me know the relief I can seek through court of law.

M. Anwer

Ampara

Answer - You have to make a complaint to the police station. Each police station has a Fraud Bureau. Then they will investigate into the matter and file action in the Magistrate's Court.

Accident matter

Question - My brother met with an accident. He was hospitalized and could not even talk. We have informed the police. So far the police have failed to take any action in the matter.

C. Gamini

Anuradhapura

Answer - When an accident occurs, it is your duty to inform the police. If the Police fail to take any action regarding the matter you can complain to the ASP of the relevant police station. The ASP will advise the relevant police officer to take immediate action.

Please note in an accident case, the police will proceed with the matter in the Magistrate's Court. In that event your brother can receive a small amount of compensation in the Magistrate's Court. However, under the Civil Procedure Code parties can file action to ask for compensation in the District Court within two years from the date of accident.

Foreign employment

Question - I have decided to go to the Middle East for foreign employment. I would like to know what steps that I should follow before my departure. I await your kind reply.

P. Chathurika

Wattala.

Answer - 1 You must register at the Sri Lanka Foreign Employment Bureau. The address is 234 , Denzil Kobbekaduwa Mawatha, Koswatta, Battaramulla, Fax : +94 11 2864141 Email : [email protected] Tel : +94 11 2864101- 5

2) When you seek a foreign employment through an agency, it should be registered under the Sri Lanka Foreign Employment Bureau.

3) You must have a valid passport and visa.

4) You must sign a Service Agreement and a copy of the agreement should be kept in your custody.

Department of Debt Conciliation Boards

Question - Could you please let me know whether the Debt Conciliation Board can intervene in cases of loan transaction with any bank or institution? I would also like to know the contact details of the Debt Conciliation Board.

K. Kanchana

Nugegoda.

Answer - The Department of the Debt Conciliation Boards cannot intervene in cases of loan transactions with any bank, or any institution registered with the Central Bank of Sri Lanka as a lending Institution under the Finance Act of 1988. The Debt Conciliation Board is situated at No. 248/11, Weera Denzil Kobbekaduwa Mawatha, Baththaramulla.(Telephone Numbers - 011-2865477 , 011-2865488

Relief by Debt Conciliation Boards

Question - What are the reliefs granted by the Debt Conciliation Board? I await your kind answer through your valuable Legal Aid page.

P.Sumathipala

Kottawa

Answer - In the procedure adopted in granting the aforesaid relief, the Board concedes other benefits to the public.

When an action is instituted in a court of law in respect of any property, the litigants have to pay a stamp duty in proportion to the value of the property involved. But all proceedings before the Debt Conciliation Board are exempt from stamp duty. A sum of Rs.40 as cost of the service of notices and a small fee in proportion to the loan as cost of notices to be published in the Gazette, will be levied.

Parties to proceedings before the Board can conduct their own cases without appearing by Attorneys-at-Law. But both parties have the option to retain Attorneys-at-Law if they so desire in cases where complex legal issues are involved specially in respect of deeds, etc.

In effecting a settlement the debtor gets the concession to repay the debt in easy instalments depending on his capacity to pay and the interest too will be reduced to a very reasonable rate. In the case of a conditional transfer, the Board converts the conditional transfer into a mortgage.