Legal Aid Commission

The law pertaining to Bail - Part 11

Bailable offences and Non Bailable Offences

It would be necessary at this stage to pay some attention to the terms “bailable offence” and non “bailable offences “. A bailable offence is defined in section 2 of the code of criminal Procedure Act as an offence shown as bailable in the First Schedule or is made bailable by any other law for the time being. Any other offence has been defined as a non bailable offence.

A non bailable offence should not be confused as an offence for which bail cannot be obtained until the conclusion of the trial. Many statutes that create non bailable offences provide that person suspected of committing offences under those Acts should be released on bail only on exceptional circumstances, and some times by the High Court. In the case of a non bailable offence, the suspect is entitled to bail as of a right .

It should however be noted that in terms of the bail Act a court is entitled to refuse bail to a person suspected of having committed a non bailable offence if the offence suspected of being committed has generated a public interest due to its gravity and is likely to give rise to public disquiet . In terms of the Code of Criminal Procedure Act, a person suspected of having committed a non bailable offence could be remanded only for a maximum period of 15 days.

This does not however apply to offences in terms of sections 114, 191 and 296 of the Penal Code. In terms of the Provisions of the Bail Act however , a person suspected of any offence could be held in remand custody for a period well over 14 days on the basis that the gravity and public reaction to the offence said to have been committed may give rise to public disquiet.

Maximum Period of detention

The maximum period a person may be held in custody without a conviction is provided for in section 16 of the Bail Act. Accordingly to the provision of section 16 no persons could be held in custody for a period of more than 12 months from the date of arrest.

However, if it is necessary to hold the person for a period exceeding 12 months, the Attorney General is expected to make an application to the relevant High court for that purpose. The extended period of detention is also restricted to an aggregate period of 12 months and the extension should be for period of 3 months at a time. The issue has however arisen whether the provisions of section 17 of the Bail Act should be read subject to the provisions of section 14 of the Act. That is whether a person could be held in custody for a period exceeding the period fixed by section 17, if the gravity of the offence and the public reaction to it would give rise to public quiet. This matter was considered by the Court of Appeal in a recent case and justice Eric Basnayake held that section 17 of the Bail Act should be read subjected to the provisions of section 14.8

In recent times there have been instances where statutory provisions creating offences do not provide for the granting of bail for persons arrested in terms of such statutes.

The Emigrants and Immigrants Act as amended by Act No. 42 of 1948 does not contain provisions for granting of bail persons who are suspected of committing offences under section 47 of the Act. In the case of Thilanga Sumathipala V. Inspector General of police and others, the Court of Appeal expressed the view that a legislative provision creating an offence without provision for bail would be conflict with the Fundamental Right of personal Liberty.

However, the Supreme Court on appeal held that where the Legislature has enacted provisions creating offences without any provisions for the granting bail, the Judiciary could not provide any remedy.

It was further held that in such instances, it was the function of the Legislature to remedy the situation that has arisen as a result of there being no provisions for the granting of bail. However, in the case of Vidanapathiranage Sumanadasa and others v.

The Attorney General, SC Special 199/2006 decided on the 19th of June 2006, a large number of persons held in detention suspected of offences in terms of the Emigrants and Immigrants Act challenged their detention without trial on the basis that it amounts to a violation of their Fundamental Rights guaranteed by Article 13 of the Constitution, the Supreme Court held that holding a person on detention without bail was a violation of the Fundamental Rights, and directed the Magistrate to consider those persons as persons detained as suspects of a non bailable offence and consider their applications for bail.

The relevant provisions of the Emigrants and Immigrants Act has now been amended by amendment Act No. 31 of 2006 and those person are now entitled to make an application for bail to the relevant High Court.

To be continued next week

Legal Aid Commission centres in Sri Lanka

NO CENTRE OFFICER-IN-CHARGE ADDRESS/T.P

01. LAC Head Justice Hector Yapa Legal Aid Commission

Quarters Rtd Supreme Court Judge No.129, HulftsdorpDirector GeneralHigh Court, Complex,Colombo 12.(5835329)Mrs.Nelum Gamage

Consultant 5627338

S.Suntheralingam 3137153 Consultant

02. Colombo Ms.M.M.Piyumi Kumari 211, Superior Court OfficeA.A.L/CoordinatorComplex,Hulftsdorp,Colombo 12.3137153

03. Welikada

Prison Ms.Thushari Karunasinghe Welikada Prison Welikada.5335329

A.A.L/Coordinator

04. Anuradhapura D.P.B.Mahadiulwewa Court Complex, A.A.L/Regional DirectorAnuradhapura025-2224465

Ms. Mahesha AAL0718805399

05. Kandy U.R.N.Ranatunga New Court Complex, A.A.L/Regional DirectorGetambe, Peradeniya081-2388978

06. Galle Ms.K.C.Nilanthi Court Complex, A.A.L/Legal OfficerFort, Galle, 091-2226124

07. Hambantota P.L.Chandrasena Court Complex A.A.L/Regional CoordinatorTissa Road, Hambantota047-2221092

08. NuwaraEliya Ms.Badra Seneviratne Court Complex, A.A.L/Legal OfficerNuwara Eliya052-2235260

09. Monaragala Ms.Shanthi Jayasinghe Court Complex, A.A.L/Legal OfficerMonaragala055-2276191

10. Ampara Ms.N.P.Rathnayake, Court Complex, A.A.L/Legal OfficerAmpara. 063-2223496

11. Kegalle Ms.S.Senanayaka Court Complex, A.A.L/ Legal OfficerKegalle, 035-2231790

12. Chilaw Pradeep Shanthapriya Court Complex, A.A.L/ Legal OfficerChilaw032-2222175

13. Akkaraipattu A.C.Rizwan District Court Complex, A.A.L/CoordinatorAkkaraipattu067-5675333

14. Balapitiya Mercy Munindradasa Court Complex A.A.L/CoordinatorBalapitiya,091-2255753

15. Matara Ms.Rajika Prasadini No.38, Lawyers Complex, A.A.L/CoordinatorFort, Matara. 041-2233815

16. Vavuniya M.Sittampalam Court Complex, A.A.L/DirectorVavuniya 024-2221863

17. Trincomalee R.Thirukumaranathan Court Complex, A.A.L/Legal OfficerTrincomalee026-2222293

18. Kalmunai Sabeer Ahamed Court Complex, A.A.L/CoordinatorKalmunai 067-2223710

19. Jaffna K.Kesavan,AAL 175,1st Cross Street, DirectorJaffna (0212224545)20. BatticaloaE.Kandasamy No.29,

Nallaiah Road,A.A.L/CoordinatorBatticaloa065-2226359

21. Bandarawela Ms.Anoma Atalugama 15,Welimada Road A.A.L/Legal OfficerBandarawela057-2224733

22. Matale Ms.Gayanie Anandarathna Court Complex, A.A.L/Legal OfficerMatale.066-3664588

23. Avissawella Ms.Yashoda Vidyaratne Court Complex, Ms.Hiranthi LiyanageAvissawellaA.A.L/Legal Officer036-2233857

Ms. YasodaMobile - 077322219124. Ratnapura

Ms.R.M.I.R.RajapakshaCourt Complex,A.A.L/Legal OfficerRatnapura.

045-2226899 25. NegomboMs.Gayani Abeysinghe,

46, Main Street, A.A.L/Legal OfficerNegombo. 031-5677111

26. Kalutara Ms.Pavithra Sanjeevani No.443, Galle Road, Coordinator/Legal OfficerKalutara.

034-5628860

27. Gampaha Ms.Achchini Adhikari Court Complex, A.A.L./Legal OfficerGampaha 033-5677998

28. Polonnaruwa Deva Kularathna Court Complex, DirectorPolonnaruwa.

027-2222293

29. Panadura Ms.Nandika Gunawardena 96, Srimaha ViharaAAL/Legal OfficerRoad,

Panadura038-224482230.

KuliyapitiyaMs.Kaushalya HapurachchiCourt ComplexAAL/Legal OfficerKuliyapitiya037-228461131. KurunegalaD.V.SeneviratneCourt Complex,AAL/Regional DirectorKurunegala037-2229641

32. Mahiyangana Ms.C.K.Wickramaratne Court Complex AAL/Legal OfficerMahiyangana055-2258332

33. Maho Ms.R.M.K.Sajeewani Court Complex RajapakseMaho, AAL/Legal Officer037-2275075

34. Horana Ms.Surangani Perera New Court ComplexA.A.L./Legal OfficerHorana034-2655244

35. Matugama Ms.Pavithra Pathirana Court Complex Legal OfficerMatugama. 034-3444426

36. Attanagalla Ms.Pradeepa Nilmini Court Complex A.A.L/Legal OfficerAttanagalla033-2297020 37.

DeniyayaMs.B.N.M.DeraniyagalaCourt ComplexA.A.L/Legal

OfficerMorawaka(Deniyaya)041-3428006

38. Dambulla Ms.Udayangani Munasinghe Court Complex A.A.L/Legal OfficerDambulla066-3682238

39. Mawanella Ms.Nilushi Jayasinghe 71/5J 1/1,A.A.L/Legal OfficerHighway Complex

Kandy RoadMawanella035-2247272

40. Marawila K.P.Jayathilaka Court Complex A.A.L/Legal OfficerMarawila, 032-2254443

41. Warakapola Ms.Yamuna Kumari Court Complex A.L/Legal OfficerWarakapola, 037-2277075

42. Juvenile Court Ms.Sajeewani Abeykone Juvenile Court Complex Legal OfficerBambalapitiya2507687

43. Nugegoda Ms.Chamika Mutunayake Court Complex Legal OfficerNugegoda. 2809068

44. Welimada Ms.Thamara Damayanthi Court Complex AAL, Legal OfficerWelimada057-2244860

45. Kantalai Ms.Menaka Damayanthi Court Complex AAL/Legal OfficerKantalai077-4444260

46. Tambuttegama Ms.E.M.P.Dammika Court Complex AAL/Legal OfficerTambuttegama(Tel.not fixed yet)

47. Mt.Lavinia Ms.L.Palapaththwala Court Complex Ms.P.AththanayakeMt.LaviniaAAL/Legal Officers2718708

48. Tissamaharama Ms.D.N.Priyanganie Court Complex AAL/Legal OfficerTissamaharama047-2239611

49. Baddegama Ms.Nisansala Guruge Court Complex AAL/Legal OfficerBaddegama0716 886789

50. Wellawaya Ms.L.Wickramasinghe Court Complex AAL/Legal OfficerWellawaya0715-306115

51. Walasmulla Nihal Liyanage Divisional Secretariat AAL/Legal OfficerWalasmulla072-4396114

52. Nawalapitiya Ms.Sudarma Gunapala Court Complex AAL/Legal OfficerNawalapitiya0716606811

53. Embilipitiya Ms.P.Liyanage Court Complex AAL/Legal OfficerEmbilipitiya0775-517428

54. Hatton Ms.T.P.G.Punchihewa 204D, Colombo Road AAL/Legal OfficerFruit Hill Hatton051-2225238

55. Hingurakgoda Ms.BPKW Tennakoone No.278, Nuwarawatta AAL/Legal OfficerHingurakgoda027-3278885

56. Badulla Ms.S.C.Abeyweera Court Complex AAL/Legal OfficerBadulla 077-1548825

57. Mannar E.C.Feldano Court Complex AAL/Legal OfficerMannar 077-6685918

Questions and Answers

Witness to lead further evidence

Question: The Employer has concluded the evidence of ‘X’ in the Labour Tribunal, Now he is seeking permission to recalling the witness again to lead further evidence. Can this be allowed?

G. Gunapala - Thalangama

Answer: The Tribunal can use its discretion on being satisfied with the reasons for recalling the witness. The Tribunal in law has to make all inquiries and it cannot shut out evidence which may be necessary to make a just and equitable order.

Registered office

Question: We decided to register a company in Sri Lanka under the new Company Act No 07 of 2007. We want to know the details regarding the registered office under the new Companies Act?

Anurada - Matugama

Answer: Under the new companies act the requirement of registered office as follows

(a) Every company should have a registered office in Sri Lanka. A company can now have its registered office in any part of Sri Lanka (under the earlier Law it was required to be in the judicial district mentioned in the Memorandum of Association)

(b) Subject to the company’s articles and to the requirements to give notice to the Registrar on Prescribed Form 13 the board of a company may change the registered office of the company at any time. It may be prudent to delete the clause in respect of the registered office in the Memorandum of Association of an existing company as it also becomes part of the Articles.

(c) The new Act has introduced a new requirement that if the registered office of a company is at the office of any chartered accountant, attorney-at-law , or any other person, the description of the registered office shall state- (i) that the registered office of the company is at the office of the Chartered Accountant, Attorney-at-Law, or any other person; and (ii) the particulars of the location of those offices.

(d) Notice of change of registered office on Form 13 given to the Registrar will take effect five working days after the notice is received by the Registrar, or on such later date as may be specified in the notice. (Please see sections 113 and 114).

Duties of Directors

Question: My best friend is a businessman. He asked me to join his company as a director. I want to know what are the duties relating to Directors. Is there any possibility to get legal advise from your commission on week days?

Chatura - Meerigama

Answer: Under the new Companies Act the director has so many duties. Before you accept the invitation to become as director it is advisable to get to know about the duties of the Director. Here are the statuary duties expressed in the Act.

Duties of directors

The new Act imposes statutory duties on directors of a company:-

(a) The Director has to act in good faith and in the best interests of the Company-(Section 187)

(b) The Director has to comply with the Act and the Company’s Articles of Association (Section 188)

(c) He can not act in a manner which is reckless or grossly negligent but to exercise the degree of skill and care that may reasonably be expected of a person of his knowledge and experience. (Section 189)

(d) The Director has to rely on and use information and advice received from others only if he knows that such reliance is not unwarranted and if he is not put on notice after making adequate inquiries. (Section 190)

(e) The Director has to make disclosure of interests (Section 192)

(f) Director is not allowed to use company information (Section 197)

(g) The Director has to disclose share dealings (Section 200)

(h) The Director has to approve remuneration and other benefits for directors only as provided for in Section 216

(i) The Director can not to give loan or provide guarantee or security to a director unless permitted under Section 217.

(j) The Director has to act as provided for in section 219 in the event of a situation of insolvency

(k) The Director has to call an extra-ordinary general meeting if it appears that there will be serious loss of capital. (as provided for in Section 220).

Qualifications of a Company Secretary

Question: Is it Mandatory for a Company to have a company secretary and what are the qualifications of a Company Secretary?

R. Sugath - Dikwella

Answer: Yes, it is mandatory.

The requisite qualifications for the post of Secretary prescribed by the regulations made under the Companies Act No. 17 of 1982 and published in the Gazette Extraordinary No. 471/6 of 14th September 1987 are still in operation as per of Section 530(1).

No person shall be entitled to act as the secretary of a company having a turnover of one million rupees or more per annum or a stated capital of five hundred thousand rupees or more unless -

a) he is a citizen of Sri Lanka and

b) he is an Attorney - at - Law, or

c) he is a member of the Association of Chartered Accountants of Sri Lanka (now the institute of Chartered Secretaries and Administrator in Sri Lanka), or

d) he is a member of the institute of Cost and Management Accountants (now The Chartered institute of Management Accountants), or

e) he is a member of an Association or Institute approved by the Minister, which provides a course in Company Law or Company Secretarial Practice, or

f) he is a person who has obtained any special qualification in relation to company secretarial work from an institution or other body approved by the Minister, or

g) He is a person who, by virtue of his holding or having held any other position, or of his being a member of any other body in the public or private sector for a period of not less than twenty years, appears to the Registrar to be capable of discharging the functions of secretary of a company, or

h) He has on the day immediately prior to the date of coming into operation of the Companies Act No. 17 of 1982 held the office of secretary or deputy secretary or assistant secretary of a company and satisfied the Registrar of his competence to discharge the duties of a secretary.

For the purpose of the abovementioned provisions, a corporate body or a firm may function as secretary of a company if a director of such corporate body or all the partners of the firm ,as the case maybe, possess the qualifications set out in item (a) and any one of the qualifications set out in item (b) above.

Labour laws

Question: Is the Minister of Labour empowered to authorize the Commissioner of Labour to determine wages?

Jafar - Thimbirigasyaya

Answer: Yes, the Minister of Labour may order by a Gazette Notification the Commissioner of Labour to determine a time-rate wage under the following circumstances -

i. When a Wages Board cannot be established

ii. When a Wages Board does not determine a minimum time rate within a period of one year of its establishment

Employment termination

Question: I was issued a letter of appointment on 10.01.1998 which does not provide for age of retirement. I will be reaching the age of 55 on 15.03.2010. can my employer terminate my employment on grounds of reaching 55?

K. Chandraratna - Mahawa

Answer: The Industrial Law does not prescribe any age of retirement. You have not given sufficient details regarding your Company whether employees are allowed to work beyond 55? Whether all employees are retired at 55, whether employees have been issued letters of appointment specifying the age of retirement as 55. Your question can be answered only if information on the above lines are given.

EPF and Gratuity matter

Question: I am employed in a Company in Colombo from 01.07.1975 On reaching the age of 55, I withdrew EPF and gratuity on 01.07.2005 as I was in need of money. My employment was continuous and uninterrupted from 01.07.1975. I withdrew EPF and gratuity on 01.07.2005 but I worked from 02.07.2005 continuously. My employment was terminated on 10.05.2009.

I am told I cannot be given gratuity as my period of employment from 01.07.2005 - the date I withdrew EPF and gratuity is less than 05 years. Cant I claim gratuity?

S.W. Somapala - Katunayake

Answer: You can claim gratuity as your employment from 01.07.1975 is continuous and uninterrupted up to 10.05.2009.

The Appellate Courts have decided that gratuity should be worked out for the period 01.07.1975 to 10.05.2009 on the last salary drawn by u and payment already made to you on 01.07.2005 should be deducted and balance should be paid to you.

Labour Tribunal

Question: I am an applicant in a Labour Tribunal case. My services were terminated after I was found guilty of five out of nine charges. Employer has led evidence on the five charges I was found guilty.

Now the employer is seeking permission from Labour Tribunal to lead evidence on the four charges where I was not found guilty also. Can this be allowed?

D. M. Sarawanamuttu - Mannar

Answer: Yes. The Tribunal has to make all inquiries according to law. The Tribunal is not bound by the findings of the domestic inquiry.

Rented premises used for illegal purpose

Question: I am an owner of a two upstair buildings and it has been rented out to a businessman. Later I got to know that he is using the premises for illegal purposes. He pays the rent and electricity on time but I am worried about the nature of his business.

Please let me know what is the action I should take on this matter?

G. Shanaka - Maharagama

Answer: 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.

It is necessary always to have a clause in the lease agreement that the rental premises would not be utilised for any illegal purpose what so ever and also not for any other purpose than the one for which the premises are leased.

Foreigner wishing to marry Lankan woman

Question: I am a Canadian, interested in getting married to a Sri Lankan woman. Please Advice.

Andrew - Canada

Answer: If you need to marry a Sri Lankan in Sri Lanka you should have the following documents.

1) Your passport

2) Your Birth Certificate.

3) If either of you were married earlier, then either the death certificate of the former spouse or the divorce decree (absolute) granted by a civil court dissolving or annulling the earlier marriage. Also the national identity card of the Sri Lankan lady and your identity card issued by your country.

If you need any information you can visit the website of Registrar General’s Department www.rgd.gov.lk or you can call over Legal Aid Commission.