LEGAL AID COMMISSION

First Constitutional Council:

Experiment in Good Governance

According to media reports the incumbent Government which now commands a two-third majority in Parliament needed to amend the Constitution is considering to introduce a Constitutional amendment to reactivate an amended constitutional device to strengthen good governance in Sri Lanka. In this context it is useful to examine the provisions of the 17th Amendment which created the first Constitutional Council which was not reactivated after its first term of office from February 22, 2004, during the last few months of the Chandrika Bandaranaike Presidency.

The 1978 Constitution of Sri Lanka was amended 16 times from November 1978 to December 17, 1988, during the incumbency of the 1977 Parliament whose life was extended by a flawed referendum to 12 years in 1982. The incumbent President’s political party enjoyed 5/6th majority in the Parliament and the amendments were mostly ad-hominum and served the Incumbent President to consolidate absolute executive authority under the Constitution.

After the Jayewardene Presidency which ended in 1989, the Premadasa’s Presidency despite enjoying a comfortable majority in Parliament, could not muster 2/3rd majority needed for Constitutional amendment. Hence, from 1989 to 2001 for the period of 12 years, there were no amendments to the Sri Lankan Constitution. Incumbent President exercised all Constitutional powers of Executive Presidency reducing the people’s power vested in the other two organs of the Government, that is the Parliament and the Judiciary to de facto Subsidiary Institutions.

This situation continued through the Presidencies of D B Wijetunge and Chandrika Kumaratunga Bandaranaike even though the latter received over 62 percent of the vote in the Presidential Election, but received only a marginal majority in Parliament under proportional electoral process provided in the 1978 Constitution.

In October 2001, the 17th Amendment to the Constitution was adopted by Parliament by all political parties other than the few members of TNA who were present but abstained from voting. While 1948 Constitution was granted by the departing Colonial British, the 1972 and 1978 Constitutions were majoritarian Constitutions.

Only 17th Amendment which provided for the establishment of the Constitutional Council was a result of consensus of all political leadership in Parliament, who realized the imperative need to depoliticize the governance process.

Impasse of the Constitutional Council

The first member elected unanimously in November 2001 to the Constitutional Council under article 41 A (f) by Members of Parliament belonging to political parties or independent groups to which the Prime Minister and the Leader of the Opposition belongs, completed the term of office in November 2004.

It is tragic that no steps been taken to fill the vacancy in terms of Article 41A(i) 8 of the Constitution.

The five members appointed on the nomination of both the Prime Minister and the Leader of the Opposition (Article 41A(i) were appointed by the President on March 22, 2002 and completed their term of office on March 22, 2005.

Upto date no agreement had been reached by the Prime Minister and the Leader of the Opposition, on the names of the five nominations to be appointed to complete the second Constitutional Council.

The reason reported in the media is the inability of a Minority Groups to reach consensus on its nominee.

Structure of first Constitutional Council

On September 25, 2001, Parliament adopted the 17th Amendment to the Constitution with more votes than the requisite two thirds majority. Prior to that on September 21, 2001, the Chief Justice conveyed to the Speaker the Supreme Courts determination under the provision of Article 123 of the Constitution stating inter alia that there was no provision in the bill which requires approval of the people at a referendum in terms of Article 83 of the Constitution.

Article 41 (a) (1) of the Constitution as amended by the 17th Amendment, provided for the Constitution of the Constitutional Council consisting of the following members:-

a) The Prime Minister,

b) The Speaker who is the ex-officio non voting Chairman of the Council

c) The Leader of the Opposition in Parliament

d) One person appointed by the President

e) Five persons appointed by the President on the nomination of both the Prime Minister and the Leader of the Opposition

f) One person nominated upon agreement by the majority of the Members of Parliament belonging to political parties or independent groups other than the respective political parties or independent groups to which the Prime Minister and the Leader of the Opposition belongs and appointed by the President. He is the only elected Member of the Council.

The primary objective of the 17th Amendment of the Constitution drafted and mooted by the then Opposition was to de-politicize the important public institutions and constitutional appointments.

The idea of a Constitutional Council in a different form was first contained in the draft bill of the Constitution of the Republic of Sri Lanka presented to Parliament in August, 2000.

The provisions contained in the draft Chap: XIV envisaged a Constitutional Council but with the withdrawal of the draft Constitution in August 2000, the first attempt to set up a Constitution Council in Sri Lanka was also aborted.

Constitutional Council of France

The concept of the Constitutional Council as the superior appointing authority of the key independent commissions and apex Public Officials is found only in few other Constitutions in the world. The more famous Constitution Council of France Le Council Constitutional which is criticized for ‘judicialization of politics’ in that country deals only with the Constitutionality of laws presented in Parliament and validity of referenda and elections.

The Constitutional Council of France is not an appointing authority. The term Constitutional Council is often used in many countries to describe what in effect is a Constitutional Court empowered to examine the constitutionality of laws proposed to be enacted by the legislature.

Nepal

The nearest example to the Constitutional Council created under the 17th Amendment of the Constitution is found in the then Constitution of the Kingdom of Nepal. According to Article 117 of the Nepalese Constitution the Constitutional Council consists of the Prime Minister as the Chairman, the Chief Justice, Speaker of the House of Representatives, the Chairman of the National Assembly and the Leader of the main Opposition in the House of Representatives.

The Nepalese Constitutional Council is empowered to make recommendations to the King for the appointment of apex Officials to the constitutionally created bodies. The Constitutional Council is expected to make appointments on a non partisan basis detracting from the appointing powers of the Executive, the Prime Minister. As Nepal’s Constitution provides for a Prime Ministerial Executive, it is the powers of the Prime Minister that are affected by the working of the Constitutional Council.

Consequently, there was an occasion in mid 2000 where the Prime Minister’s nominee for the post of Commissioner for Investigation of Abuse of Authority was rejected by the other members of the Council and consequently the Prime Minister, who is the Chairperson of the Council, indefinitely postponed the meetings of the Constitutional Council. Current Political turmoil has doomed the Nepalese experiment.

-S S Wijeratne - Member first Constitutional Council

Free legal aid to prisoners

Question: I heard that the Legal Aid Commission have a special unit to help the prisoners what type of legal help do you offer to the prisoners? If the prisoners have no relations, how can they seek relief from your Unit?

Gamini - Kotigawatta

Answer: The Legal Aid Commission has established a special unit to help the prisoners. We never appear in criminal cases, but only in some exceptional cases., we do appear.

Any person who is in the prison for more than one year and could not obtain a bail, he/she can obtain legal relief from our legal Aid Commission. Our two Legal Aid Officers normally visit three days a week to the Welikada prison. If the prisoner is in the prison, he can meet our officers and get legal assistance.

However the prisoner is in any other prison area, he can post a letter to our Prison Unit, Legal Aid Commission, Head Office, No. 129, High Court Complex, Colombo 12, stating the problem, the offence, case no, Court Proceedings of the case, name of the person who can be contacted and any other relevant information.

We are also ready to help the prisoner’s family members who have legal problems. You can visit one of our Legal Aid Commission Centres and get free Legal Aid and advice.

Consumer Protection Act

Question: I am a consumer who bought electrical goods from a reputed company.

I was told by the seller while purchasing the goods, the goods were in working condition.

But two days after I started from using the equipment it was not functioning properly. What can I do regarding this issue. Please advise.

Chamika - Galle

Answer: Under the Consumer Protection Act false representations are recognized as an offence. You can file a case under the section 31 of the said Act the sections says that, “Any trader who, in the course of a trade or business, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services ;

a) falsely represents that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model

(b) falsely represents that goods are new

(c) represents that goods or services have sponsorship, approval, performance, characteristics accessories, uses or benefits they do not have

(d) represents that such trader has a sponsorship approval or affiliation he does not have

(e) makes false or misleading statements concerning the existence of, or amounts of price reduction or price increase

(f) makes false or misleading statements concerning the need for any goods, services, replacements or repairs or

(g) makes false or misleading statements concerning the existence or effect of any warranty or guarantee, shall be guilty of an offence under this Act.

Further, you can complain to the Consumer protection Authority, 1st and 2nd Floor CWE Secretariet Building No. 27, Vauxhall Street Colombo 2

General Te. No. (011)2445897/2393577/2393495
Fax No. (011)2399148
Email: [email protected]

Pension matter

Question: I am an unmarried person and due to retire. What are the documents I should submit to the Pensions Department?

Charitha - Kurunegala

Answer: The duly filled application issued by the Government Department together with the Affidavit stating that you are unmarried, your Bank Account No. and Bank Voucher and the letter informing that you are due to retire.

The other relevant documents will be submitted to the Pension Department through the Head of your Department.

If deductions have been made for W&OP fund from your salary you are entitled to get a refund.

Fundamental Right

Question: I am poor litigant. How do I file fundamental right application before the expiry of the time period ?

W Bimal - Ampara

Answer: Before the expiry of thirty days (30 days) of violation of your Fundamental Right you have to make a complaint to the Supreme Court setting out the breach of your fundamental rights, by registered post addressed to His Lordship Chief Justice of the Supreme Court (His Lordship Chief Justice, Supreme Court Complex Colombo 12).

The Registrar of the Supreme Court will thereafter assign the application to the Legal Aid Commission or the Bar Council to make a proper investigation and report as to whether a human rights violation exists.

If the recommendation is accepted, the Registrar will allot a Supreme Court Special Application Number and request and Legal Aid Commission or Bar Council to file proper papers, could seek this relief directly to file an application in the Supreme Court, you have to come to the Legal Aid Commission Head Office.

Simply a poor litigant whose monthly income is below Rs 8,000 and if the same is being supported by a Grama Sevaka certificate.

Financial Ombudsmen

Question: Please let me know the functions relating to the financial ombudsmen in Sri Lanka?

H Sanjay - Dankotuwa

Answer: With the concurrence of the Central Bank of Sri Lanka, a scheme called the ‘Financial Ombudsman, Sri Lanka’ has been established.

The commencement date was December 1, 2003. The first Ombudsman was Walter Laduwahetty a well known Lawyer and retired Judge.

The present Ombudsman is U.Mapa

The Financial Ombudsman has the power to inquire into and settle any complaints and disputes between individual customers and the financial institutions covered by the Ombudsman Scheme.

The financial institutions that are voluntarily participating in this scheme are only those regulated and supervised by the Central Bank of Sri Lanka. Currently they consist of the following -
* Licensed Commercial Banks
* Licensed Specialized Banks
* Registered Finance Companies supervised by the Central Bank
* Primary Dealers licensed with and supervised by the Central Bank
* Leasing Companies licensed with and supervised by the Central Bank

The Ombudsman will be known as “The Financial Ombudsman, Sri Lanka”.

The Financial Ombudsman is a person of high repute with experience in Banking and Financial Services.

He has been selected by a panel of representatives from the Central Bank, the Securities Exchange Commission, the Institute of Chartered Accountants, the Bar Association, the Organization of Professional Associations and a representative of the participating financial institutions. The Ombudsman’s Office is located at

Address: No 143A, Vajira Road, Colombo 5.
Telephone-+94 11 259 5624
Telefax: +94 11 259 5625
Email: [email protected]
Website: www.financialombudsman.lk

Disputes relating to Bank

Question: If there is a dispute relating to Bank, is there any way to settle it before going to Courts?

K Asanka - Colombo

Answer: Yes, there are three main steps you can follow when making a complaint, before going to Courts those are as follows:

Step 1 - Make the complaint at the Branch or Office which provided the service As a first step, make the complaint at the Branch or Office which provided the service.

At each of the branches and offices situated outside the Head Office, each institution has designated officers to whom you can talk or write to about your complaint.

Please ask for the “Complaints Resolution Officer” or “Complaints Settlement Officer” at the Branch.

He/She will help you and attend to you.

Step 2 - contact/write to the “Complaints Resolution Officer” or “Complaints Settlement Officer”

As a second step, if you are not satisfied with the way in which your complaint was dealt with at the Branch, please contact/write to the “Complaints Resolution Officer” or “Complaints Settlement Officer” at the Head Office of the financial institution and he/she will attend to you.

Step 3- Make a complaint to the Ombudsman to resolve your dispute

As a third step, if your complaint cannot be resolved even by the Head Office staff, you will be informed in writing and then you are quite entitled to make a complaint to the Ombudsman to resolve your dispute.

Every complaint to the Ombudsman must be in writing and signed by the Complainant.

It must also be accompanied by a fee of Rs 250 which can be paid by cash, bank draft, personal cheque, money order or postal order.

If the complaint is successful or partly successful, that fee will be refunded. If not, it will be forfeited and the Complainant cannot ask for a refund.

If requested in writing by the Ombudsman and by you, the financial institution concerned will make available all documents/correspondence relating to the complaint/dispute to the Ombudsman.

No financial institution can give any information to the Ombudsman about you or your complaint unless you give it permission to do so in writing.

Unless they have your written approval, they have to honour the secrecy requirements of the Banking Act to maintain confidentiality about customer’s accounts.

Can Justice of Peace attest a deed?

Question: One of my friend has transferred a ‘Swarnaboomi Deed’ to me in the presence of a Justice of Peace. He attested the said Deed and handed it to me. I want to know whether the said Deed is legal or not.

Duleeka - Kelaniya

Answer: A Justice of Peace has no power to do so.

He has only powers to certify Affidavits and sign documents within his purview. He has no power for the conveyance of deeds. Only a Notary has the power to attest a deed.

If a Justice of Peace has attested a deed it is not a legally valid document.

If any one wants to transfer a property, it has to be done through a Notary and signed before two witnesses.

If the ‘Swarnaboomi Deed’ has a clause to say that it is not transferable, the Notary has no right to execute a Deed of Transfer.

If there is a clause to say that after a certain period of time that the Deed could be transferred, then it can be transferred after the lapse of the said period.

The Divisional Secretary is solely responsible in respect of Swarnaboomi Deeds and his permission has to be obtained before the transfer of the property.

English stenography course for court staff

Upon the request made by the Chief Justice Asoka de Silva to Bar Association President Shibly Aziz, PC, the BASL launched an innovative project to conduct an intensive three month English Stenography Course for 20 court staff, which is a first event in the history of the BASL.

The United Nations Development Project (UNDP) is sponsoring this program and the BASL enlisted the services of the National Apprentice Industrial Training Authority (NAITA) to conduct the training.

All participants will be issued a certificate of competency at the end of the training based on the results of an examination.

The BASL hopes to conduct this course for the second batch of 20 court staff immediately following the completion of the inaugural course. The BASL is working closely with the JSC and JSC has also shown much interest in this project.

The BASL launched another project on Continuing Legal Education (CLE) on August 7, 2010 with the assistance of the UNDP had a very successful program in Avissawella where about 100 members from the Avissawella Bar participated.

Among the speakers were, Retd Judge Balapatabendi, Court of Appeal Judge Justice Salam and High Court Judge Justice Laffar. BASL President Shibly Aziz PC and BASL Secretary Mahinda Lokuge also graced the occasion which was organized by CLE Committee Chairman Anoma Gunathilaka.