Legal Aid Commission

Donating body to Medical Faculty

Question: I am 62 years old, I have no one here to look after me. I am now living in an elders home in Colombo. I like to donate my body to the Medical Faculty. Please let me know the procedure.

Karunarathne - Colombo

Answer: You have to write a letter to the Medical Faculty, Head of the Anatomy Department giving your consent to donate your body to the said Department.

Then they will issue the necessary instructions to you. Since you are residing in an Elders Home at Colombo you can donate your body to the Medical Faculty of Colombo.

If you are hospitalized, then you can write a letter with your signature giving your consent to donate your body to the Anatomy Department.

This letter should be handed over to the Judicial Medical Officer of the relevant hospital and you have to inform your next of kin. In your letter you have mentioned that you don’t have any one if so you can inform the head of the Elders Home . Immediately on your death, the head of the Elders Home should inform the relevant Anatomy Department mentioned in your letter within 24 hours.

If the head of the elders home wishes to keep your body for a few hours, according to the instructions given by the Anatomy Department, you have to inform the Funeral Undertakers and they will undertake to do a light embalm.

If the head of the Elders Home wishes to give away the body direct to the Medical faculty, then there is no necessity to do an embalm.

Medical Faculty, Colombo. Tel. No. 2695300 - Ext. 119, 120 Medical Faculty, Ragama. Tel. No. 2956188

Time limits before which appeals can be lodged

Question: What are the time limits before which the Appeals can be lodged?

J. Chatura - Bambalapitiya

Answer:

1. Appeals to Supreme Court

(1) From Court of Appeal Application - (a) to be made orally at the time of delivery of final order, judgement, decree or sentence

(b) move for time to consider making such an application within 21 days of such final order etc. (vide Rule 22 (1) (2) and (3) of supreme Court Rules 1990)

Application to SC for Special Level to Appeal - within 6 weeks of the order judgement decree or sentence of the Court of Appeal is sought. Caveat by Respondent of his intention to oppose an application for special leave - within 14 days of the receipt of notice.

Appearance by Respondent in SC Appeals - within 14 days of the receipt of notice from the registrar.

Lodging Notice of Appeal in SC if CA grants leave - 14 days from the date of grant of leave.

Appellants Written Submission - within six weeks of the receipt of notice of the lodging of the appellant’s submissions, within twelve weeks of the grant of special leave to appeal or leave to appeal.

Respondents Written submission - within six weeks of the receipt of notice of the lodging of the appellant’s submissions, or if the appellant has failed to file his submissions, within twelve weeks of the grant of special leave to appeal or leave appeal.

(ii) From High Courts of the provinces - An appeal lies direct to the Supreme Court from a final order, judgement decree or sentence of a High Court in the exercise of the appellate jurisdiction vested in it by paragraph (3) (b) of Article 154P of the Provinces (special provinces) Act No. 19 of 1990 with leave from the Supreme Court within 42 days.

2) Appeals to Court of Appeal

(i) From High Courts exercising Original Criminal Jurisdiction - 14 days from date of conviction/judgement.

(ii) Appeals from orders made by a High Court in the exercise of its jurisdiction Under Article 154P (3) (B) of the Constitution.

(a) Petition of Appeal to Court of Appeal - within days from date of Conviction/Judgement

(b) If by Attorney General - within 28 days.

(iii) Appeals from orders made by a High Court

In the exercise of its jurisdiction under Article 154P(4) of the constitution

(a) Notice of Appeal to be presented to High Court - Within 14 days from the date of order.

(b) Petition of Appeal - Within 60 days from the date of order

Note: See also Section 9 & 10 of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990.

(iv) From the Board of Review under the inland revenue - One month of the decision of the Board Revenue Act.

(v) From Land Acquisition Board of Review - Petition of Appeal within 21 days of Board’s Decision.

(vi) From District Courts

(a) Notice of Appeal - Within 14 days from the date of judgement/order.

(b) Petition Appeal - Within 60 days from the date of judgement/order.

(c) Written submissions (DC Appeals):

Appellant - 6 weeks after filing Petition of Appeal.

Respondent - within 6 weeks of Appellant’s written submissions or if Appellant fails to file w/s, then within 12 weeks of petition of Appeal.

(d) Leave to Appeal to CA - within 14 days of impugned order.

(e) Revision and other applications to CA:

Written Submissions (Petitioners) - within 6 weeks of filing of Respondent’s Statement of Objections.

Written Submissions (Respondents) - within 6 weeks of receipt of petitioner’s Submissions, within 12 weeks of Respondent’s Statement of Objections.

3. Appeals to High Court

(i) From Magistrate’s Court - 14 days from date of judgement. (28 days if by the Attorney General)

(ii) From Primary Courts - 14 days from date of order.

(iii) From Labour Tribunals - 30 days from date of order.

(iv) From Agricultural Tribunals - 30 days of the communication of decision.

(v) From Workmen’s Compensation Tribunals - 30 days from the date of Commissioner’s order.

4. Appeals to Boards of Review

(i) Under the Rent Act from a Rent Board To Rent Board of Review -21 days of communication of order.

(ii) Under the Land Acqn. Ord. from Chief Valuer’s award to LA Board of Review - 21 days of receipt of notice of Award

(iii) Under the Inland Revenue Act from Assessment at C.G.I.R. - 30 days of notice of assessment

(iv) Under the Inland Revenue Act from C.G.I.R. to Board of Review - One month of receipt of determination

(v) Under Ceiling on Housing Property Law (from Order of Commissioner of National Housing to Board of Review) - One month from date of communication

(Extracted from Bar Association of Sri Lanka)

Wages Boards Ordinance

Question: Are all employees covered by Wages Boards Ordinance?

S. Priyadarshani - Ratmalana

Answer: The employees of State and those receiving industrial training in an institute meant for deaf and blind or juvenile institute are not covered by Wages Boards.

Short working day

Question: What is a short working day under the wages Board Ordinance?

Gayani - Hambantota

Answer: The number of hours constituting a short working day would vary from trade to trade. It is five hours, 5 1/2 hours or six hours.

Covered by Shop and Office Employees Act

Question: The employees covered by shop and Office Employees’ Act enjoy 1 1/2 days weekly holidays with pay.

What is the position regarding employees covered by Wages Board?

R. Dilani - Nuwara Eliya

Answer: It is one day once a week. For some Wages Board a Particular day in the week is declared as weekly holiday.

Some Wages Boards the day is not decided.

Weekly holidays are unpaid holidays in most of the Wages Boards. In the Cinema Trade, it is a paid holiday.

Wages Board for Nursing Home Trade

Question: I am an employee covered by the Wages Board for the Nursing Home Trade. My salary has not been paid for the last three months.

I have complained to the Assistant Commissioner of Labour Colombo East, Narahenpita. What is the procedure for recovery of my Salary?

Udayangani - Colombo

Answer: The Assistant Commissioner of Labour will file a certificate in the Magistrate’s Court for recovery of the salary due to you. This is a simple procedure instead of the former procedure of filing a plaint and charge sheet which is cumbersome.

Mercantile holiday

Question: I am an Accounts Clerk at a company in Colombo. February 27, 2010 - Saturday is a Mercantile Holiday - Prophet Mohamed’s Birthday. February 28, 2010 - Sunday is a Poya day. These two days (Saturday and Sunday) are my normal weekly holidays. Will I lose the weekly holidays?

Tamara Kumari - Colombo

Answer: You are entitled to a day’s leave within seven days from 27.02.2010 in lieu of the Mercantile Holiday - Prophet Mohamed’s Birthday. You are not entitled to an additional holiday in lieu of the Poya holiday.

Caveat

Question: What is the purpose of registering a Caveat?

Answer: Any person having an interest in an immovable property may register a Caveat at the Land Registry so that he would be informed if any other party submits any deed or document to be registered of the same property.

The stamp fee of a Caveat is Rs. 12.50 for six months and stamp fees for any amount of time may be paid at once.

The Registrar shall inform the Caveator by registered post if any other party forwards a document to be registered of the same property.

Once such notice is received by the Caveator that he should institute action in a competent Court within 30 days if he is of the opinion that such document is illegal or fraudulent contrary to his rights. If the Court is satisfied with the case of the Caveator it may order the document to be rectified or cancelled as may be necessary corrections to preserve the rights of the caveator and may order the necessary correction to be made in the Register.

English or Pidgin?

Live languages like Sinhala, Tamil or English keep on changing. Dead languages whether Oriental; Sanskrit, Pali or Occidental, Latin are called dead languages as they don’t change. Scholars study dead languages to read ancient writings in these languages. For some time now even when Pali or Latin scholars meet their fellow scholars, they rarely converse among themselves in Pali or Latin. Speakers some time use phrases from Pali or Latin to show their language skills. We see this happening in temples and churches.

English is considered the fastest developing language in the world. Some English is spoken in all 192 countries of the United Nations. There is no subject ranging from arbitration to zoology, physics to rocket science that is beyond the reach of English. Ninety percent cyber space usage is dominated by English, the language of the globalization of trade is English. Today’s world language is English.

The future of the world lies in English. Due to its wide usage, English is also the language with the most number of variants and accents in the world. In China, 400 million Chinese use some sort of English. In India over 350m Indians use English. The richness of English is its ability to cover all cultural distinctions in different countries and yet to be understood and used in, international conversations, SMS messages and cyber chat rooms. Globaly English has become accepted because despite multiple variations, the language could be understood by other English speakers. This had however become possible because basic rules of English usage are respected all over the world with difference proficiency .

The day, any linguistic group using English veers out off the basic rules of English usage completely, the language the group users will not be known anymore as English but Pidgin. If one generation of Pidgin users bestows its linguistic habits on the next generation it is referred to as Creole.

Pidgin and Creole could be understood by other Pidgin users and not by the standard English user. Pidgin has replaced standard English in number of countries where English or French was once the dominant language. All Pidgin users will always insists that their language is English. But sadly cannot be understood by English users in other countries.

2009 was declared the year of English and Information Technology in Sri Lanka. The efforts made by the Presidential Task Force to promote the twin subjects are commendable. But somewhere down the road the vision has some what blurred. As it is reported of the 21,000 English teachers in schools 19,000 are only with credit passes in English GCE Ordinary level. This qualification is hardly adequatic to teach English as a second language. The appropriate corrective step would be to establish a separate English teaching university to train diploma holders in teaching English as a second language and conduct research in teaching English as a second language to Sri Lanka.

The products of English teaching by under qualified teachers cannot exceed the level of their teachers even if they passed the G.C.E. examination with credits and sometime with distinctions. The Task Force has misdiagnosed the reluctance of student to speak English only as a cultural block.

The remedy proposed is to use English any way. This remedy is dangerous and may kill the patient. We may eventually replace English with Pidgin, which will not be understood by others whose mother tongue is not Sinhala. The communication Fundamentals of Singlish will be irretrievably ruptured.

The world famous Sri Lankan cricketers and athletes are world famous for their English language skills. English is the common language of the future Sri Lankans. English that we officially promote ‘Our Way’ should be understood by other English users in the world. If you promote Pidgin we will not be understood outside our country.

S. S. Wjeratne

The Law pertaining to bail - Part III

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This week we feature the third and final part of the contribution made by Additional Solicitor General Palitha Fernando at the Judicial Colloquium of High Court Judges held recently

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Applicability of the Bail Act

Applicability of the Bail Act is another matter that has received attention quite often. This involved the interpretation of Section 3 of the Bail Act. The said Section provides as follows.

“Nothing in this Act shall apply to any person accused or suspected of having committed, or convicted of, an offence under the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979, Regulations made under the Public Security Ordinance or any other written law which makes express provision in respect of the release on bail of persons accused or suspected of having committed, or convicted of, offences under such other written Law.”

The matter in issue was whether these provisions referred to two categories of offences only, namely offences under the Prevention of Terrorism Act and Offences under the Regulations made under the Public Security Ordinance. In the case of Ravi Karunanayake V. Ruwan Gunasekara, where anticipatory bail was sought in respect of an offence in terms of the offences against Public Property Act, it was held that the provisions of the Bail Act has been excepted only in respect of offences under the Prevention of Terrorism Act and Offences under the Regulations made under the Public Security Ordinance and that the provisions of the Bail Act applied to offences under the Offences against Public Property Act.

However in the case of Shiyam v.Officer in Charge of the Police Narcotic Bureau, Justice Shiranee Bandaranayake, interpreting Section 3 of the Bail Act held that the Act has no application also to offences where any written law expressly provides for the release of person suspected of having committed or convicted of such offences.

The issue of granting bail to convicted person in view of the provisions of the Bail Act needs consideration. Several cases in which this issue arose in terms of the Code of Criminal Procedure Act and the legislation before the enactment of the Bail Act, had very clearly held that a persons convicted by the High Court could be granted bail pending appeal only on exceptional circumstances.

In the case of Attorney General v. Jayanthi Silva it has been held that in terms of Section 323(1) of the Code of Criminal Procedure Act though an accused convicted by the Magistrate’s Court should be released on bail no sooner a petition of appeal is lodged, Court has a discretion in releasing on bail a suspect convicted by the High Court.

All the authorities decided under the provisions of the Code of Criminal Procedure Act were unanimous that a person convicted by the High Court could only be released on exceptional circumstances.

However, in the case of Attorney General v. Lathif CA Application 55/2005 decided on October 28, 2005, Justice Sri Skandarajah sought to distinguish all those cases on the basis that they had not been decided in terms of the Bail Act and when the guiding principle was not that the granting of bail should be the rule. Therefore, it was decide, that after the enactment of the Bail Act, exceptional circumstance were no longer a requirement for the purpose of granting bail to a convicted person.

The Supreme Court however, in two cases have considered the provisions of the Bail Act and has decided that the requirement of exceptional circumstances to release a person convicted by the High Court still existed even under the provisions of the Bail Act. Justice Shiranee Thilakawardana in the Judgment of her Ladyship pointed out that the distinction between a suspect and a convicted person has been maintained even under the provisions of the Bail Act.

Anticipatory Bail is a novel concept introduced into our law by the provisions of the Bail Act.

In terms of the Bail Act, a person who has reasons to believe that he may be arrested on account of his being suspected of having committed, or been concerned in committing, a non bailable offence is entitled to apply to the relevant Magistrate’s Court for an order directing the police to release him on bail if he is arrested in connection with that offence.

He should make the application with notice to the officer in charge of the relevant police station. The application has to be supported by an affidavit of the applicant.

The Magistrate is required to hold an inquiry within seven days from the date on which the application is filed and, having heard the applicant or his Attorney-at-Law and the Officer in Charge of the police station make an appropriate order.

Several issues arise in respect of anticipatory bail applications. None of them have yet been specifically decided by judicial authority. The first amongst them is the stage at which a person is entitled to move Court for an order for anticipatory bail.

In most applications applicants for anticipatory bail have sought to satisfy Court that they have been falsely implicated for ulterior motives when applying for anticipatory bail.

It is therefore important to consider whether a person against whom there is sufficient evidence could be granted anticipatory bail in the absence of any material suggesting an ulterior motive in the arrest. Anticipatory bail is concept recognized by the Code of Criminal Procedure in India.

The purpose of an order for anticipatory bail is to keep a person out of remand custody during the period of investigation. It would be relevant to note at this stage that one of the reasons that justifies pre trial detention is facilitation of investigations.

Therefore, keeping a person out of remand custody would undoubtedly, more often than not, have an adverse impact on the investigations.

In the circumstances, in my view, anticipatory bail need be considered only where it is at least superficially apparent that the purpose of the intended arrest is not on legitimate grounds. Where a person is held in remand custody it has a tremendous traumatic impact on him. Subsequent release would not prevent the irreparable damage.

The Habeas Corpus application was always available to secure the release of a person from illegal detention. However, the provisions permitting anticipatory bail prevents detention altogether.

The issue as to whether a person suspected of having been concerned in the commission of murder also arises for consideration. Since bail for a suspect in a case of murder can only be obtained from the High Court, it could be argued that anticipatory bail which could only be obtained from the Magistrate’s Court is not available to a murder suspect.

It could on the other hand be argued whether a suspect against whom there is absolutely no evidence, but is to be arrested on framed charge of murder should not be entitled to seek anticipatory bail. If this position is accepted, it further strengthens the argument I have adduced that anticipatory bail is available only where there is evidence of false implication.

It should be noted that investigations need not stop merely because an application for anticipatory bail has been granted. Investigations can proceed and even the suspect can be interrogated for the purpose of investigation.

However it would not be possible to detain him at a police station between 6.00 p.m. and 6.00 a.m on any day. When an application is made for anticipatory bail, the application can be granted on conditions to be decided by the Magistrate.

Conclusion

As discussed earlier, the law pertaining to bail has undergone a lot of changes due to statutory provisions and also judicial decisions during the past few year. It should however be noted that a person should not be entrusted to remand custody or held in remand custody for a long period unless it is extremely essential.

According to the statistics of the Prison Authorities, the number of person held in pre trial detention, that is the remand prisoners consist of about 60 percent of the entire persons held in detention.

Therefore, it would be the duty of all magistrates to consider applications for remand very carefully before entrusting suspects to remand custody. Remanding a person should never be treated as a penal sanction.

It would also be relevant to mention the decision in the case of Pathirana v. The State,16 where it was held that the quantum of the bail bond should never be excessive so as to render the granting of bail nugatory.

International Women’s Day

International Women’s Day which commenced due to the efforts of Clara Zetkin on 1911 is celebrated by women around the world.

UN declared March 8 each year as the International Women’s Day in 1975. A number of countries ie: China, Russia, Macedonia, Vietnam has declared the International Women’s Day as a National Holiday. International Women’s Day have been celebrated by the Legal Aid Commission during the past few years.

This year Legal Aid Commission celebrations will be held on March 8 at Samudradevi Balika Vidyalaya, Nugegoda with participation of several girls’ schools in Nugegoda including Anula Vidyalaya, Sunethra Devi Balika Vidyalaya and St. Joseph’s Girls School.

Disclaimer

The answers to questions are the legal views of individual lawyers and the Legal Aid Commission only compiles them for the Daily News Legal Aid Page.

Yours questions should be addressed to - Daily News Legal Aid Page, Chairman, Legal Aid Commission, No. 129, Hulftsdorp Street, Colombo 12.

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