LEGAL AID COMMISSION

Supremacy of the law

The Rule of Law is considered the most important characteristic of good governance. The other essential ingredients being accountability, transparency equitable inclusiveness, participatory and responsive to public, consensus oriented effectiveness (Escape). Rule of Law requires equal access to an independent judiciary which is the main mission of Legal Aid Commission. Due to economic and legal awareness deficit, vast majority of the population is deprived of equal access to judicial institutions even though equal protection of law is a Constitutional aphorism.

In respecting the cardinal principle of rule of law, respecting the basic law - i.e. The Constitution comes as the core foundation on which derivative legislation should confirm. It is evident that ethics of justice in a Constitutional Society derives inspection from the basic law which in most instances calls for special procedure to amend, add or abrogate.

For example, the 1978 Sri Lankan Constitution enacted with the 5/6th majority in Parliament stipulate that it could be amended only with a two thirds majority in Parliament and the fundamental provisions only with the approval of a General Referendum.

This frigidity imposed by the proportional electoral system which makes it difficult for one palatial party to attain a two third majority has resulted in Constitutional violations rather than amendments. The fate of 13th and 17th Amendments may have to be viewed in the above context.

In a background of non-compliance with Constitutional provisions, the rule of law is challenged at the apex Constitutional level. Consequently the non-compliance with non-apex legislation becomes normal and the rule of law becomes mere rhetoric. The law enforcement agencies become discriminatory and politicized. Hence it is necessary for equal access to justice exponents to continually stress the importance of rule of law.

Rule of Law is the highest legal principle of general application; the corner stone of the modern democratic state. The principle, simply explained means that “decisions should be made by the application of known principles or laws without the intervention of discretion in their applications.” In other words the law should be supreme and should be the exclusive basis of equitable governance of the affairs of men and society.

Rule of Law or Supremacy of Law needs to be understood in contradistinction to the rule of man or God. Historically autocratic kings and tyrants sought legitimacy from divine rights to make laws according to individual whims, fancies and idiosyncrasies. This resulted in oppression and inequality sometime resulting in the revolutionary overthrow of the tyrants. The parable relating to King Kekille in Sri Lankan folklore symbolizes the rule of an idiosyncratic man.

Rule of Law or Supremacy of Law is operative both nationally and internationally. The principles of international law, which govern the conduct of inter-state relations, are founded on established conventions and multilateral agreements. The United Nations Organization and its specialized agencies are the primary source of modern international law.

In the municipal law, Rule of law entails number of prerequisites.

They are: -

(1) Separation of Powers,

(2) Independent Judiciary,

(3) Independent and effec- tive law enforcement authority.

In a modern democratic state such as Sri Lanka, the law making powers are entrusted to a body of elected representatives; the Parliament.

The executive power is vested in an elected Executive President who paradoxically is constitutionally above the law and heads her/his Cabinet of ministers.

The source for both executive and legislative power is founded on the basic law of the land, the Constitution. The interpretation of the Constitution or any other law is the constitutional responsibility of the independent judiciary who could be impeached for misconduct by the elected Representative.

This separation of powers especially that of the Judiciary is a cardinal ingredient of Rule of Law.

The independence of the judiciary envisages that the judges should interpret the law and decide on disputes without fear or favour constantly safeguarding fundamental rights enshrined in the Constitution.

In the exercise of judicial functions the judges should not come under extraneous pressure or influence.

Any interference in the judiciary will rupture the Rule of Law resulting in loss of confidence in the administration of justice and attendant breakdown in the law and order in the society.

The laws enacted by Parliament and relating interpretations to such laws by the judiciary need to be respected and enforced.

This is the responsibility of the law enforcement authorities who like the judges should be neutral and independent to evoke the maximum confidence in society.

Law should be the only nexus between the lawmakers, judges and law enforcement officials. Any interference in the equitable enforcement of laws would denigrate the principle of Rule of Law.

The Rule of Law is currently understood as a Western legal principle of universal application. However, in ancient South Asian culture the Rule of Law prevailed in a more refined and a humanitarian manner.

The supremacy of Dharma or just righteous law was the basis of governance and dispensation of justice in ancient India and Sri Lanka.

The Dharma envisions the full spectrum of universal Human Rights and values. In fact, according to early chronicles a cow filed the first fundamental Rights case in Sri Lanka during the time of King Elara.

The cow sought equality of justice against the Prince whose chariot ran over her calf. This fable is an illustration of how Rule of law was deeply ingrained in Sri Lankan society even prior to the beginning of the Christian era.

S S Wijeratne

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.

Email:legalaid.dailynews @ gmail.com

Website:www.lawaid.org

New LAC centres in Mutur and Valachchenei

The Legal Aid Commission which provides free legal advice and court assistance in 58 centres islandwide will be opening new centres in Mutur and Valachchenei combined Courts.

These Centres who will assist the war affected persons in the region is funded by the access to justice project of UNDP and administered by National Languages and Social Integration Ministry.

Questions and Answers

Mandatory Registration for Lankans leaving for employment abroad

Question: I decided to leave Sri Lanka for employment abroad. I want to know whether it is necessary to Register at the Sri Lanka Bureau of Foreign Employment (SLBFE), if so, could you advice me on the procedure.

Chamara Ariyarathna - Kuliyapitiya

Answer: Yes, it is a mandatory requirement to register for Sri Lankans who are leaving for employment abroad. Section 51 of the SLBFE Act No. 21 of 1985 as amended by Act No. 4 of 1994 requires all Sri Lankans leaving for employment outside Sri Lanka to pay the following fee for the registration with the SLBFE prior to their departure.

This registration fee is charged based on the monthly salary that will be paid in the respective foreign country to the worker irrespective of his/her employment category.

(The worker is expected to forward documentary proof in support of his/her monthly salary for this purpose)

Above registration is valid only for a period of two years with the same employer. If any Sri Lankan wishes to extend his/her employment beyond the original period of contract he/she is requested to renew the registration prior to expiration of the existing registration by paying the following renewal fee.

LKR 3,200 + Vat 12% + NBT 3%

The fees so collected are used for the benefit of Sri Lankans employed abroad and their left behind family members through various welfare programs locally and overseas. (i.e. maintenance of safe houses for destitute female workers, repatriation of destitute workers, insurance coverage, legal assistance for needy workers etc.) Hence, all Sri Lankans leaving abroad for employment are requested to pay registration fees as stated above as responsible and law abiding citizens.

Certified translations

Question: My brother lives in England. Is it possible for me to obtain a certified translations of his Birth and Marriage Certificate. Can I do it my self on behalf of my brother?

Samantha - Wennappuwa

Answer: Yes, it is possible. Please visit the Registrar General’s Department Head Office at Battaramulla with the original Birth and Marriage Certificates of your brother and they will help you.

Fee for an English translated certificate is Rs. 100.

Power of attorney

Question: My friend has dual citizenship in Sri Lanka and France. I would like to know whether he could give a Power of Attorney to two different persons in Sri Lanka to start a business? If so how can we register it?

Anurada - Mtara

Answer: Yes, please visit the Registrar General’s Department Head Office at Battaramulla with the following documents.

Take the original Power of Attorney with the additional true copy attested by a Notary of Public and also the affidavit.

Deed

Question: My Sister has a land under her name, but she doesn’t have the deed and she also does not know the deed No. How can she obtain a copy of the deed? All the tax has been paid under her name.

Chamara - Kandana

Answer: If she knows the name of Notary and the year of attestation she has to go to the Land Registry where the Notary has the license.(for more details please contact the Land Registrar in your area).

Labour matter

Question: I was an employee of a private company and my services were terminated last month.

Please let me know what kind of relief can be obtained by the Labour Tribunal in this regard. Please advice me .

J.M Anusha Pradeep Jayasinghe - Moragane

Answer: You can obtain relief under the Industrial Dispute Act No 43 of 1950. According to the Act a worker can get relief from the Labour Tribunal within six month of the date of termination of employment.

You can ask one of the following reliefs from the Labour tribunal.

* Re- instatement with or without back wages

* Compensation in lieu of re-instatement

* Gratuity (The employees of the company should be less than 15)

* Dismissal of application

Pension matter

Question: I am a 30 year old widow of a soldier with three year old son. My husband died during the war two years ago. I am getting his pension. I have decided to get married again. I want to know whether the Pensions Department will stop the payment of the pension of my deceased husband if I get married again.

Answer: Under the Pension minutes and circulars if you remarry its not a barrier to get the previous husband’s pension.

Under the new amendment of the act the Pension Department will pay you half of the pension of your previous husband.

EPF Account

Question: I am working in a private company and have an EPF Account. I want to know whether I can nominate an heir to my EPF Account?

Samantha - Kurunegala

Answer: Yes. This could be done on the very occasion you are registered with the Fund.

Please fill in Form - ‘H’ together with your A and B forms. You can get the form from the Labour Department Office situated in island wide. You may nominate one heir or several. You must state on the form the share of the benefits each should receive.

An unmarried person may nominate anyone; a married person may nominate members of his family including his spouse, children, parents, brothers/sisters.

It is also possible to cancel a previous nomination at any stage. Form - 1 should be used in such instances. When a renomination is needed, please use Form-J and send it to the Labour Office of the area within which the place of work is situated. A nomination effected before marriage, is automatically cancelled with marriage. When a nominee dies his rights cease.

When a minor is nominated, a Guardian may be appointed. The guardian may be paid the benefits. When the minor attains majority, the guardian’s nomination is automatically voided. When a Member dies without having made a nomination, the amount of his EPF benefits will be paid to the heirs ordered by a court under the Inheritance of Property Act.

Maternity leave

Question: I am employed in an office at Panadura which operates on five day a week. I have two weekly holidays. I am pregnant. Weekly holidays are excluded for computation of maternity leave. Please advice me whether the computation of maternity leave would be by reckoning 1 1/2 day or 2 days as weekly holidays?

Anushka - Panadura

Answer: Weekly holidays will be reckoned as 1 1/2 days which you are entitled to in law.

Alternative Maternity Benefits

Question: What is meant by Alternate Maternity Benefits?

P. W. Silva - Thalawathugoda

Answer: The Maternity Benefits Ordinance provides for alternate maternity benefits.

To get this benefit the employer should get a certificate from the Commissioner of Labour.

The certificate will be issued only if adequate arrangements are made for provision of alternate maternity benefits. The arrangements are as follows.

(i) A Maternity ward or lying-in-room for the use of the women worker who is in confinement.

(ii) Services of a midwife at the time of confinement.

(iii) The workers should be allowed to stay for not less than 10 days in the maternity ward or lying-in-room. She should be provided with free food during this period.

(iv) Payment should be made at the rate of 4/7 of the benefit due.

Job agreements

Question: I came to know that the Sri Lanka Bureau of Foreign Employment (SLBFE) wants all those leaving for overseas jobs to sign a Job Agreement in order to get them registered with the Bureau prior to their departure. What kind of information does it contain? Please advise me?

Anurada - Piliyandala

Answer: If you are a male worker, domestic worker for non Middle Eastern countries or a skilled female worker you should sign an agreement with the local recruitment agent.

Domestic workers leaving to Middle Eastern countries must sign an agreement at the Embassy of that particular country.

The following signatures and endorsements should be available on the agreement:

If recruitment is done by an agent:

1. Signature of employer

2. Signature of foreign agent

3. Signature of the Embassy / Consulate official

4. Signature of local agent

5. Signature of housemaid

If you are going abroad through a visa sent by a friend or a relative:

1. Signature of the employer

2. Signature of Embassy / Consulate official

3. Signature of Housemaid

You can use the following guidelines in the agreement:

1. Wages, 2. Salary deductions, 3. Rest days, 4. Annual and casual leave, 5. Medical benefits, 6. Duties, 7. Welfare, 8. Termination of contract, 9. Dispute settlement, 10. Transfer of employment, 11. Repatriation, 12. Airfare cost.

Obtaining licence of foreign employment agency

Question: My friend and I decide to start a foreign employment agency in Sri Lanka.

Please let me know how can I obtain a foreign employment agency licence to our proposed office.

Please let me know the procedure?

Ameed - Mahara

Answer: After fulfilling the following requirements, you can start a foreign employment agency in Sri Lanka.

To obtain a foreign employment agency licence, you should have an office which:

* Is situated in an easily accessible place where public transport is available.

* Have a floor area of at least 500 square feet.

* Have telephones with IDD facilities, fax, computers, databases, type writers, photocopiers & trade testing facilities.

You can then apply for the licence by submitting the following documents:

* Business Registration Certificate or certified copy of Form 48 & Articles and Memorandums (If registered under the Companies Act)

* Layout plan of the office and the lease agreement or deed of the premises.

* Affidavits regarding citizenship of the partners of the business/ company.

* Two recent testimonials in support of the character and reputability of the person who is in charge of the foreign employment agency. One of these should be from the local Gramasevaka Niladhari of the area where he resides confirming that the person who is applying for the licence has been living in that area.

* A bank guarantee of a commercial bank issued on behalf of you or your agency.

* You should also furnish the following documents of yourself and the other partners or Directors of the agency:

- Birth Certificate(s)

- Personal bio-data(s)

- Photocopies of their National Identity Card(s) or Passport (s)

- Police clearance reports from the nearest police station

- A passport sized photograph of the officer in charge of the agency

After the above documents have been submitted, a team from the SLBFE would visit and inspect the premises and check the authenticity of the documents before granting them the approval for the licence. The licence which you have obtained ould be valid only for a period of one year from the date of issue.

Elders maintenance board

Question: We are members of the Elders Society at Madampe. Please let me know the details of the Maintenance board under the Elders Act No 09 of 2000.

Sagara - Kegalla

Answer: The Elders Maintenance Board is situated at No.150A, LHP, Building, Nawala Road, Nugegoda. The Maintenance Board meets on every Thursdays.

The parent’s complaints against their children will be heard by this Board. If the parents send a complaint to this Board, the Board will send letters to the children to be present at the Maintenance Board for inquiry. At the inquiry, the Board will try to resolve the matter.

The Elders Maintenance Board has the power to order to pay the certain amount of money to the parents. If the children do not obey the order of the Maintenance Board, then the parents can enforce the said order via Magistrate proceedings. If you need further clarification you can contact the Maintenance Board (Tel No. 2824082)