Legal Aid Commission

Supersession of Judges

An intergrel part of the Independence of the Judiciary is to respect seniority in judicial promotions.

The criteria of seniority in elevating Judges have been criticized as a method of automatic rewarding of competent and respected Judges and also an occasional misfits with obvious erratic Judicial conduct.

With the few exceptions of possibly politically motivated appointments to the apex Judiciary, many lesser Judicial officers commenced their carriers at the lower judicial ranks.

In Sri Lanka, we have not developed a scientific judicial auditing system, to weed out Judicial officers whose competency and conduct fall below the expected standard.

Hence, as it was evident in recently reported incidents Judicial officers have conducted themselves erratically which affected the reputation of the entire Judiciary. The Judicial Service Commission conducts confidential disciplinary inquires in respect of blatant violation of Judicial standards and dismiss officers from service, if warranted but despite the long traditions of the Sri Lankan Judiciary, a credible Judicial Auditing System has not yet being developed.

Similarly, at the apex level on generally accepted norm of elevation of superior Judges on the basis of seniority has not been consistently respected in few occasions.

The exercise of non-Judicial criteria in selecting the Chief Justice and other Superior Judges slowly underun public confidence in equitable dispersion of Justice, which in turn will erode the democratic governance of the country.

Supersession of Judges (Judicial appointments disregarding seniority) have taken place in our South Asian neighbours. These incidents have led to the demeaning of public respect in the Judiciary. In India, Judicial Supersession in appointing the Chief Justice has taken place on two occasions in recent past.

Following the landmark Judgment of Kesavananda Case which held against the government of Indira Gandhi the Prime Minister over looked three senior Judges, Justice’s Shelat, Grover and Hedge and appointed pliable Justice AN Rai as the Chief Justice. This resulted in the premature retirement of the Superseded Judges eroding confidence in the Indira Gandhi Government.

Yet again when senior most Judge Justice H R Khana who dissented from the government position in another land mark case and was virtually forced to retire prior to his possible supersession by Junior Judge Justice M H Beg. The highly respected Indian Supreme Court was somewhat tarnished by these political interference but have in all other aspects continued to be a beacon of Justice with the traditional fierce independence.

Very recently Bangladesh developed into unwarranted practice of supersession where few months ago, Justice Khanwel Haque was appointed as Chief Justice superseding two senior Justices M A Martin and Sha Abu Nayeem. This caused consternation in the Bangladesh Bar and the Judiciary. The media has been very critical of the Supersession which clearly will corrodes the confidence in the Judiciary.

In Sri Lanka, Supersession have occurred when senior Judge Justice Raja Wanasundera, late Justice Mark Fernando PC and Justice Shirani Bandaranayake were over looked when appointing a Chief Justice.

S S Wijeratne

Shipping law program

The First Shipping program will be Inaugurated on January 23, 2011 at the ICLP Auditorium at No 61, Kamal Road, Colombo 3. Justice P A Ratnayake, K Kanagesvaran P C, Dr Harsha Cabral P C and Dr Parakrama Dissanayake and Course Director S S Wijeratne, will be participating at the opening ceremony.

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: [email protected]
Website: www.lawaid.org

Questions and Answers

Elders problem

Question: I am 70 years old. My daughter forced me to transfer my house and deed in her name in order to obtain a bank loan. After getting the bank loan my daughter now ignores me. She is forcing me to leave the house. I do not have any place to go. I am really helpless. Please help me.

Fernando - Marawila

Answer: Under the Protection of Elders Act No 9 of 2000 you can get protection. Under the said Act you can file a case against the children to get maintenance from them through the Maintenance Board. The Maintenance Board will inform the children to pay maintenance to the parents. If they are not willing to pay maintenance, the Magistrate Court can enforce the order.

The Legal Aid Commission has set up an Elders Desk which handles cases of this nature. Further under the Domestic Violence Act No 34 of 2005 you can seek a protection order against them.

If you need any advice, you can visit our Head Office situated at No 129, Hulftsdorp Street, High Court Complex, Colombo 12.

Important Departments

Question: Please let me know the addresses of the Government and non Government departments which are related to public on their day-to-day life?

Anusha Kandy

Answer:

Chief Justice
Superior Court Complex, Hulftsdorp, Colombo 12.

Magistrate
Child’s Court Complex, Battaramulla.

Social Security Board
150A, L H G Building, Nawala Road, Nugegoda. Tel: 011-2823614

Registrar General
Registrar General Department, Densil Kobbekaduwa Mawatha, Battaramulla. Tel: 011-2889488

Department of Registration of Persons
C45, Keppetipola Mawatha, Colombo 5. Tel: 011-2583199/011-2508022

Telecommunication Regulatory Commission
No. 276, Elvitigala Mawatha, Colombo 8. Tel: 011-2689351-2

Sri Lanka Bureau of Foreign Employment
No. 234, Densil Kobbekaduwa Mawatha, Battaramulla. Tel: 2864701 - 05

Consumer Affairs Authority
1st Floor, Sathosa Secretariat Building, 27, Vauxhall Street, Colombo 2.

Elders Secretariat
150A, L H G Building, Nawala Road, Nugegoda. Legal Aid Commission 129, High Court Complex, Colombo 12. Tel: 2877687

Department of Immigration and Emigration
No. 41, Ananda Rajakaruna Mawatha, Colombo 10. Tel: 5329000

Department of Pensions
Maligawatta, Colombo 10. Tel: 011-2421786

Department of Motor Traffic
No. 341, Elvitigala Mawatha, Colombo 5. Tel: 011-2694332-3 Fax: 011-2694338

Central Record Room Maligawatta. Tel: 011-2329773

Question: I got a vehicle permit. Please let me know how I can register my new car. Can I get a special Number of my choice? Anscar Shanaka Colombo

Answer: The following requirements are necessary for registering your new vehicle in Sri Lanka

*Form (MTA 2) for the registration of motor vehicle

* Two photographs of the vehicle owner (3.5 x 2.5) The Grama Niladhari in the relevant area or the vehicle importer should certify on the reverse of the photograph. If the vehicle owner presents himself and personally submits his application for registration the supervising officer of the relevant section can certify the photograph on production of the identity card

* A Photocopy of the identity card/driving licence/Passport of the vehicle owner

* In case of a reconditioned vehicle cancelled overseas Certificate of registration (along with English translation of the Certificate)

* Customs entry

* Customs assessment notice

* Relevant invoice relating to new vehicles

* In case of a vehicle purchased in an auction of customs, Ports Authority and three Armed Services the letter and payment receipts obtained from the relevant institution

* Certificate issued by a Motor Vehicle examiner after the vehicle having been examined (Certificate of Weight) or Prototype VIC, Instead of examination certificate of motorcycles chassis number and engine number are examined and certified by a Motor Vehicle Examiner

* If the vehicle has been imported on an import licence originals of such licence and amendments thereof if available

* Duly perfected Form MTA3 for the registration of absolute ownership

* If registered with a mortgage a copy of mortgage deed A separate application should be submitted for the allocation of a specific number within 30,000 numbers ahead and Rs 7,500.00 is charged additionally

Vehicle Registration Charges

Vehicle   Registration Number Prototype

Category Fees (Rs) Plates Prototype Charges Charges (Rs) (Rs)

Motor Car     2,000.00     1,250.00     250.00

Dual Purpose     1,800.00     1,250.00     250.00

Motor Coach     1,800.00     1,250.00     250.00

Motor Lorry     1,800.00     1,250.00     250.00

Four Wheel Tractor     1,000.00     900.00     250.00

Hand Tractor
(Brand New)     900.00     900.00     250.00

Hand Tractor
(Recondition)     800.00     900.00     250.00

Non Agricultural

Land Vehicle     2,000.00     900.00     250.00

Lorry Trailer     2,000.00     1,250.00     250.00

Tractor Trailer     1,000.00     900.00     250.00

Family problem

Question: I am a Muslim woman. My husband is torturing and harassing me. I have two children. I don’t know what to do, please help me?

Concerned

Answer: If you are married under the Muslim Registration Ordinance you have to first go to Quazi courts and meet the quazi and ask for relief. In that Court you can get maintenance or divorce.

According to the Domestic Violence Act No. 34 of 2005 you can ask for protection order from the Magistrate Court to prevent any more torture. -----------

Is child employment legal?

Question: A 13 year old girl is being emloyed as a domestic servant in a house. Is the employment of the child legal in Sri Lanka ? What kind of action can we take?

Amanda van”t hoof Sent by email

Answer: The Regulations published in 1957 as regards employment of children prohibits a child under 12 years of age to be employed in any capacity. However, a child who is above the said age has not been made prohibitive to be employed. But the undermentioned conditions have been laid down in the event of a child being employed:

1. Four hours of leisure should be allowed in a day between 6 am and 8 pm.
2. Additional three hours of leisure should be allowed once a week.
3. Ten consecutive hours of leisure for rest should be given between 8.00 pm and 6.00 am.
4. Seven consecutive days of leisure should be allowed in every three months.

It is observed that none of the foregoing regulations have been adhered to by the employer. Therefore, the employment of the child is illegal. Legal action could be taken for the employment of the child under the provisions of the Employment of Young Persons and Children’s Act.

However, under the law a child is considered as being under 18 years. Therefore you can call over child protection authority Talawatugoda Road, Madiwela.

Hot line No 1929

Or you can complain to the Women’s Bureau, Colombo. Tel No 01124444444.

Sexual harassment

Question: The head of the Institute in which my friend works in, proposed to her to have a sexual relationship to approve her letter of appointment. But since she refused the proposal the Head does not approve her appointment. Kindly advise me as to how my friend could overcome this problem.

Wathsala Colombo

Answer: It is very clear from your question that the Head of this particular Institute has proposed to have sexual relations with your friend to approve her letter of appointment which is also a kind of bribe. Under the Bribery Act No. 11 of 1954 and its Amendments, taking a bribe or giving a bribe in any Government Department to any person is an offence. If a person is expecting bribe to do his duty or delaying his duty until he is given a bribe, such incidents could be brought to the notice of -

The Commissioner to Investigate Allegations of Bribery or Corruption,

No 36, Malalasekara Mawatha, Colombo 7
Hot Line 2586257

The Bribery Commission treats all information as confidential.

If your friend needs any further clarification, she may contact our Anti-Corruption Legal Aid Centers or Zero Corruption Desk of the LAC. Act No. 22 of 1995 Penal Code Amendments - Section 345 states as follows:

“Whoever, by assault or use of criminal force, sexually harasses another person, or by the use of words or actions, causes sexual annoyance or harassment to such other person commits the offence of sexual harassment and shall on conviction been 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 want to seek relief you have to file a case in the Magistrate’s Court where you reside.

Intellectual property

Question: Please enlighten me on the concepts of intellectual property. What is the law relating to Intellectual Property in Sri Lanka.

Janaka Manjula Maharagama

Answer: Intellectual Property means the rights resulting from the creations of the human mind. It generally embraces the rights relating to

(a) literary and artistic works such as novels, poems and plays, films, musical works, computer programs, databases, drawings, paintings, photographs and sculptures and architectural designs;

(b) performances of performing artists, sound recordings and broadcast;
(c) inventions;
(d) industrial designs;
(e) trademarks, service marks, commercial names and designations;
(f) protection against unfair competition and
(g) all other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields such as lay-out designs of integrated circuits, new varieties of plants (breeder’s rights), Geographical Indications and undisclosed information including trade secrets.

Intellectual Property is traditionally divided into two categories:

(i) Industrial Property which includes patents for inventions, trademarks and service marks, industrial designs and Geographical Indications and
(ii) Copyright which covers literary and artistic works.

The rights of performing artists, producers of sound recordings and broadcasting organizations are known as the related rights or neighbouring rights.

Intellectual Property rights share the characteristics of other property rights - they can be owned, alienated and licensed.

They allow the creator or owner of a patent, trademark, or copyright etc. to benefit from his or her own creative work. These rights have been recognized in several international conventions on Intellectual Property.

The current Intellectual Property system in Sri Lanka is governed by the Intellectual Property Act No 36 of 2003 which makes provisions for a variety of Intellectual Property rights and their acquisition, management and enforcement.

The National Intellectual Property Office of Sri Lanka established under this law is the Government department, which is responsible for the administration of the intellectual Property System in Sri Lanka.

Pension

Question: My brother is a widower who is getting his wife’s W&OP payments from the Pension’s Department. He is 40 years old and has decided to remarry. I want to know whether if he remarries that his pension can be stopped by the Pension’s Department.

Chamara Fernando Pulle

Mahara

Answer: Under the pension minutes and circulars your brother can get the half salary of the previous pension.

The new provisions has been introduced by the Pension’s Department by the Widow’s and Orphans (Amendment Act No. 09 of 2010. According to the Act No. 18 states as follows:

18. (1) The widower of a contributor shall in his re-marriage receive as pension after the date of such subsequent marriage-

(a) half the amount of the pension which he was receiving at the time of such subsequent marriage; or

(b) where he was entitled to receive a pension but was not in actual receipt of the same, half the amount he was to receive in his capacity as a widower prior to such subsequent marriage.

(2) The children of the first marriage of the widower shall receive the remaining portion of the pension received by the widower, after payment to the widower is made in terms of paragraph (a) or (b) of subsection (1).

(3) Where the spouse of such subsequent marriage is a contributor under this Act and where such widower becomes entitled to receive a pension upon the death of such spouse in respect of the contributions made to the Pension Scheme by such spouse, the payment of such amount as he was receiving as pension in terms of paragraphs (a) and (b) of subsection.

(1) shall be terminated with effect from the date of death of such spouse of such subsequent marriage:

Provided that, where the payment of the pension is terminated as provided above, the children of the first marriage of the widower shall, as from the date of death of the spouse of their father’s subsequent marriage, be entitled to receive the share they were receiving in terms of subsection (2) and the amount which their father was receiving in terms of subsection (1), prior to such termination: Provided further that, in the event of the dissolution of such subsequent marriage, the widower shall be entitled to receive as pension the half share he received in terms of subsection (1) and the entitlement of the children under subsection (2) remains unchanged.”

Passport

Question: I decided to make a new passport. Please let me know who can attest a passport application?

Anu Mahara

Answer:

1. Justice of the Peace
2. An officer of Sri Lanka Administrative Service, Education Administrative Service, Accountants Service, Planning Service or Engineering Service
3. Attorney at Law
4. Qualified Medical Practitioner
5. A Commissioned Officer in Sri Lanka Army/ Navy/Air Force or Police
6. OIC of the Police Station of the area
7. Grama Niladhari/Samurdhi Manager / Social Service Officer of the area.
8. A Post Master/ A Principal of School / a Labour Officer
9. An Estate Superintendent
10. Assistant Controllers, Authorized Officers and Enforcement Officers of the Department of Immigration and Emigration.
11. Chief Incumbent of a religious mission (Temple, Church, Mosque or Kovil)

Refund of W&OP payment

Question: I am a 60 year old pensioner. During my tenure of service I contributed to the W&OP pension scheme. Two months ago my wife died. I don’t have children who are less than 26 year old. I want to know whether I can get the contributions made to the W&OP pension scheme. If so, please let me know the correct procedure ?

Mayura - Mahara

Answer: According to the Pension Minutes and Circulars you are not entitled to get the W& OP payment .

If you are unmarried at the time of getting the pension then you can obtain the W& OP payment with interest.

Or else if your spouse has died before you go on pension and if your children are above 26 years old, then you can get your W&OP refund back.

As per your query, you are not entitled to get your W&OP payment because your wife had died after you got retired.