LEGAL AID COMMISSION

Compiled by Kalani A Medagoda, A A L

Company Law for people

In the present economic world there are two basic types of commercial enterprises, individual enterprises and company or incorporate enterprises.

Half a century ago, the majority of business undertakings were Individual or Family owned and managed.

The Plantation Raj was different where sterling companies incorporated in England were the major stakeholders.

Pioneering business leaders of Ceylon, Charles de Zoysa and the Senanayakes were Individual or family entrepreneurs who made their wealth.

The family tycoons of late 19th and early 20th centuries not only acquired wealth but also shared their excess wealth with historical charity enterprises. Most of the leading schools today and even many hospitals, temples and churches were the result of these individual or family philanthropists who had wealth but also had a heart.

The rise of incorporated companies as a unit of enterprise from the 1940's, changed this phenomena. The companies with legally limited liability are legal persons without hearts and emotional responsibility and are governed only by laws and rules. The company's primary motivation was profit and not charity. Since companies are legal persons, they were accountable for every cent which belongs to the shareholders or investors.

Until very recently, the word cooperate social responsibility was not even heard. But there were exceptions to this avaricious profit making mentaly evinced by few family owned companies. They were exceptions than the Rule.

Very recently, a newspaper published a list of shareholder billionaires of this country. The annual efforts made by the Ceylon Chamber of Commerce to select the best company with corporate social responsibility have eluded this supper rich corporate billionaires.

This is indeed a tragedy as the new cooperate giants would continue to make wealth mainly in the stock market ignoring the pains of poverty and the need for development of the vast majority of poor people. This practice would negatively affect free enterprise, itself.

The financial giants of the United States of America, "Mecca of capitalism", have realized the impending peril. The two richest Americans, Bill Gates and Warren Buffett have dedicated half of their billions for development of the poor and the sick in the African continent.

They are two shining examples of how the individuals could help the poor countries to get out of the poverty rut. Their example has been followed by 50 other US billionaires who have now formed a billionaires club for poverty alleviation.

The Indian picture is not so promising. The Indian bllionaires led by Ambanis and Mittals like the Sri Lankan rich have not yet finished flaunting their enormous wealth.

Perhaps, they are influenced by the effect of the greatest bride monument to love, Taj Mahal and had gone even to construct a Billion dollar house. Few hstorical Indian fnancial giants like the Tatas and Birlas have devoted a lot of money on R and R efforts to empower the general Indian populations by promoting new Universities and new cops.

In Sri Lanka, we are still waiting for the first endowed educational University to be created, for the benefit of the poor, by a private entrepreneur or a rupee billion grant to research, to find out why the North Central Province is unduly devastated by the kidney epidemic which affects thousands of young people.

S S Wijeratne

Legal Aid Clinic at Deyata Kirula

The Legal Aid Commission which is the pioneer statutory institution in Sri Lanka in providing free legal assistance to the deserving is organizing a free Legal Aid Clinic with the collaboration of the Justice Ministry at Deyata Kirula National Exhibition. Legal Officers from the Legal Aid Commission head office and regional centres will conduct Legal Aid Clinics from February 4 to February 10, 2011 at the Exhibition. Useful LAC publications are available at the Legal Aid stall.

[ QUESTIONS AND ANSWERS]

Arbitration clause in agreement

Question: I have decided to start a business with a foreign company. We have already drafted our agreement. But we never included the arbitration clause in our agreement. I want to know whether it is necessary to include the arbitration clause before the parties sign the agreement. If the agreement does not include the arbitration clause, can the two parties resolve the dispute through arbitration. What is the legal validity?

Sumeda, Negombo.

Answer: If you want to resolve your dispute through arbitration you have to include the arbitration clause in your agreement. Arbitration clause is mentioned in part (II) of the Arbitration Act, No, 11 of 1995. Otherwise when the dispute arises both parties can enter a submission agreement to resolve the dispute through arbitration.

In the case of business with a foreign company it is advisable to include the arbitration clause, because the arbitration Award is enforceable internationally.

How to obtain a deed

Question: Please let me know how I could obtain a certified copy of a deed, where only the number of the deed and the name of the lawyer who prepared same is available. The deed is in respect of a house situated in Colombo. Your early advice in this regard would be greatly appreciated.

Chandana, Colombo.

Answer: If your land is situated in Colombo and your lawyer is a practicing notary in Colombo, then you have a chance to get a certified copy of the deed.

You have to visit the Land Registry in Colombo after verifying the date of attestation of the relevant deed. In order to verify the date of attestation of the deed, you have to visit the section where duplicate deeds of the notaries are kept. Since you are aware of the name of the notary, you can find out the date of attestation. To apply for a certified copy of the deed, there is an application form to be duly filled where a stamp duty of Rs 102.50 has to be paid.

Consumers and the CAA

Question: We are all consumers, but most of us are not aware of our consumer rights. We would be pleased if you could clarify the following:

1. Please let us know the main functions of the Consumer Affairs Authority (CAA).

2. Who can obtain the service from the Consumer Affairs Authority?

3. What is the mechanism adopted by the Consumer Affairs Authority in granting redress to aggrieved consumers?

4. How can a complaint or interested party make a complaint or obtain information?

Sent by email

Answer:

1. The main functions of the Consumer Affairs Authority are -

* Handling of complaints by traders on anti-competitive practices and unfair trade practices.

* Conducting market investigations and market surveys.

* Specifying goods and services which are essential to the life of the community and regulating the prices thereof of the goods and services specified as above.

* Computer awareness and empowerment mainly by establishing consumer organizations.

* Issuing of directives to traders and manufacturers on labeling, packaging, price market, etc.

* Obtaining the required redress for the aggrieved consumer and punishment of offenders through the judicial systems.

* Warning of any trader or manufacturer in the case of first contravention of the provisions of the CAA Act

2. Aggrieved consumers and traders can seek the redress from the Consumer Affairs Authority.

3. The mechanism adopted by the CAA in granting redress to aggrieved consumers - A written complaint along with supportive documents which relates to the sale of goods or to the provision of service should be sent to the Authority within three months. An inquiry is held into the complaint. After an inquiry the Authority shall order the trader or the manufacturer to pay compensation to aggrieved party or to replace such goods or to refund the amount paid for such goods or the provision of services.

4. A complaint or interested party can make a complaint or obtain information.

Complaints should be addressed to the Director-General of the Authority to the address given below:

Consumer Affairs Authority,

CWE Secretariat Building,

27, Vauxhall Street, Colombo 2.

Tel Nos: Chairman - 2399146. Director - 2399149. General - 2393577, 2445897, 2393495, 2393970, 2399147.

Fax No. - 2399148

The Legal Aid Commission has already set up a Consumer Protection Desk. If you need any assistance relating to consumer rights, you can kindly call over at our Desk situated at our Head Office at No.129, Hulftsdorp Street, High Court Complex, Colombo 12.

Rape

Question: How is a man said to have committed rape? Could you please define this clearly through your valuable Daily News Legal Aid Page?

I also take this opportunity to thank the Legal Aid Commission for the valuable service rendered to the public through this page. Well done. Keep it up.

Premalal, Moratuwa.

Answer: Under Section 363 of the Penal Code Act, No.22 of 1995, a man who has sexual intercourse with a woman under circumstances falling under any of the following descriptions is said to commit 'rape' -

(a) without her consent even where such woman is his wife and she is judicially separated from the man;

(b) with her consent, while she was lawful or unlawful detention or when her consent has been obtained, by use of force or intimidation, or by threat of detention or by putting herein fear of death or hurt,

(c) with her consent when her consent has been obtained at a time when she was of unsound mind or was in a state of intoxication induced by alcohol or drugs, administered to her by the man or by some other person;

(d) with her consent when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is, or believed herself to be, lawfully married;

(e) with or without her consent when she is under sixteen years of age, unless the woman is his wife who is over twelve years of age and is not judicially separated from the man.

Issue of National Identity Cards

Question: For purposes of interest I would like to know why and when the Registration of Persons Department commenced functioning. How does the Department function? Could you please explain?

Pushpa, Nugegoda.

Answer: The concept of Registration of Persons and issue of National Identity Cards has its roots in the Indo-Lanka Agreement of 1954. This concept was resonated during the regime of Sirimavo R D Bandaranaike which came into power in 1961 and necessary legislation was initiated. Subsequently, the Registration of Persons Bill was presented in Parliament for the first time in 1962. However, it was not possible to pass the Bill during the term of this Parliament. Later in 1968 Dudley Senanayake tabled this Bill in Parliament without any change and it was passed as Registration of Persons Act, No. 32 of 1968.

The Act came into operation with effect from April 5, 1971. Allocations were provided in the estimates for the year 1971/1972 to establish a department in order to implement the provisions of this Act, and the Registration of Persons Department commenced functioning from October 01, 1971.

Implementing the provisions in the Registration of Persons Act, No. 32 of 1968 the Registration of Persons Department commenced the registration of eligible residents of Sri Lanka above 18 years of age and issuing of identity cards to them in the year 1972.

In terms of the amendments made to the Act in 1981 the age for registration of persons was reduced to 16 years. Applicants submit their applications to the Grama Niladharis in their respective areas, and the Grama Niladharis forward the applications to the Registration of Persons Department through Divisional Secretaries. School students and estate residents submit their applications through the Principals of Schools and Superintendents of Estates respectively.

Since the establishment of the Registration of Persons Department in 1972 up to 2004 over 24.5 million identity cards have been issued. Issue of identity cards with colour photographs was initiated on July 1, 2005. The Elections (Special Provisions) Act, No 14 of 2004 mandated that every voter should produce a valid identity document before casting vote, after a prescribed date.

The Registration of Persons Department being the authority which holds the responsibility of issuing national identity cards, therefore, has launched a crash program to issue identity cards to the persons entitled to cast their votes. It was estimated that there are about 2.5 million voters who have not obtained identity cards hitherto.

Pensioner going abroad

Question: I am a pensioner. I have decided to go abroad. Before my departure what should I do?

P K Thilak, Colombo.

Answer: First you have to decide whether you wish to receive your pension in Sri Lanka or abroad. If you wish your pension to be remitted in your account while you are abroad, you have to inform the relevant Divisional Secretary and the Foreign Pension Division.

Then they will issue you with Pension 1 Form (Life Certificate). You have to take sufficient photocopies of the said Form and take them with you when you are going abroad. You have to fill this form and get it attested by an authorized person mentioned in the form and send it to the Bank before the date of your pension in Sri Lanka. Then on the instructions of the Pensions Department, the Bank will remit your pension in your account and any day you come to Sri Lanka, you can withdraw your pension from the Bank.

If you wish to get your pension abroad, you have to fulfill the following requirements:

(a) you should have permanent residency/citizenship

(b) approval of the High Commissioner

(c) approval from the Pension Department in Sri Lanka.

If you need further information in this regard, you can contact the Accounts Section, Foreign Division, Pensions Department, Maligawatte, Colombo 10. Tel. No. 2320439

Appeal regarding land case

Question: There was a land case which was settled in my brother's favour and the appeal was made by the defendant. Please note that the Judgment was given in 2000 and the appeal was made in the same year (within the appealable period). Eight years have passed since then. I now wish to clarify -

(a) When will this case be heard?

(b) Will my brother be informed or the lawyer who appeared for my brother or both?

(c) If the lawyer who appeared for my brother is not in a position to appear this time what should he do?

I await your kind reply.

W D Chandradasa, Mattegoda.

Answer: The answers to your questions are given below:

(a) Kindly check from the Registrar, Court of Appeal regarding the 2000 final appeals.

(b) Your brother's Registered Attorney and your brother will be informed regarding the hearing of the final appeal application.

(c) If your brother's lawyer is not in a position to appear on his behalf, he can retain any other suitable lawyer as he wish.

Street children

Question: When I travel to office daily, I see so many children begging in the streets and as in private buses. Most of them are under 14 years of age. Some of these children are forced to beg by their parents. If this trend continues, I fear these children will become criminals in the future.

I want to find out whether there is any legal system to protect these unfortunate children. Please advice me.

by e-mail

Answer: We have a separate Court for children already established in Battaramulla which is called the Juvenile Court. A Juvenile Court is a Court that hears any charges against a child or a young person.

As a kind citizen, you can bring you can send a detailed letter regarding these children to the Department of Probation and Childcare Services with a copy of the said letter to the Hon. Judge of the Juvenile Court, Battaramulla. The Legal Aid Commission has also set up a Special Legal Aid Centre in the Court premises to cater to the needs of these unfortunate children. The Department of Social Service also has a special unit to safeguard the welfare of street children. Under the Law it is our social duty to protect and safeguard the rights of these unfortunate children.

Passengers Rights

Question: Please let me know what are the rights of passengers who use public transport in Sri Lanka.

Edirimanna, Kandy

Answer: The National Transport Commission has already recognized the rights of passengers using public transport. The rights are as follows: A passenger has the right to buy a ticket at the start of his journey, prior to the bus leaving the bus stand.

A passenger has the right to obtain a ticket depicting the location of boarding and dismounting, ticket fare, date and number of the bus.

A passenger should be able to travel safely up to the destination to which the fee was paid for. A passenger should receive a courteous, welcoming service by a well mannered, smartly and decently clad bus conductor and driver.

If a bus is a normal service, children between the ages of 3 and 12 years should be able to travel at half the normal bus rate.

If a luxury bus service, a passenger should enjoy air-conditioning facilities and travel in a service not carrying more than the approved number of passengers.

As smoking is forbidden in public transport services, a passenger has the right to travel in a smoke free environment.

A passenger has the right to oppose driving that is of high speed, reckless and dangerous or is breaking road rules. A passenger has the right to oppose the use of a mobile phone by the driver, whilst driving the bus as well.

A passenger has the right to travel in a bus that uses only a radio in terms of audio/visual devices. A passenger has the right to travel in a bus, which if using a radio, should use it to a maximum volume of 80 decibels only.

When travelling in the bus which is under authority of the licence department, a passenger should be able to perceive that the doors are closed when the vehicle is on the move.

As the paying passenger is the most valued person in the bus, he/she should receive a deserving polite and friendly service.

A Passenger should be serviced by un-intoxicated service personnel.

If a semi-luxury bus, it should not carry a number of passengers of more than the allocated seating.

It should be apparent that the bus service starts and ends as per the time table. The starting time and end time should be displayed inside the bus.

Public complaints

Question: Please explain how a complaint should be lodged against public transport to the National Transport Commission.

Gamini, Kolonnawa

Answer: All complaints by the public should be sent in writing, by phone or any electronic mode. In an investigation over a public complaint, if found guilty, disciplinary action would be taken against the parties responsible.

A public complaint can be made

By telephone - 24 hour hotline: 0112595555

In writing Director,
Department of Quality Assurance and External Relations,
241, Park Road,
Colombo 05.
By fax (0112513103)
By E-mail ([email protected])
By coming to the NTC office

Rules of passenger service

Question: Can you setout what are the general rules and regulations of a passenger service

C Chamindra, Matale

Answer: Rules and Regulations of a Passenger Service

Passenger Service Permit is given only to buses registered for and holding passenger and third party (pedestrians, other vehicles and property) unlimited insurance.

According to the new regulations, each bus is to be equipped with a fire extinguisher. And when in service and during passenger transport, refuelling at fuel (petrol/diesel) stations is prohibited.

Bus service staff on duty should be clad in proper decent clothing and the behaviour should be of a courteous manner. The staff member should be competent in carrying out his duties and should carry his NTC registration ID on his person.

It is compulsory that at the start of the journey and before departure from the bus station, each passenger should be issued a ticket, and any other passenger entering the bus en-route should be issued a ticket. It is also required that the ticket issued be of accepted formal standard and should be issued via an electronic device.

Luxury and semi luxury buses should not transport a number of passengers exceeding the available number of seats. Passengers should not be transported standing. Licences shall be provided only to those adhering to policies and keeping high standards of service.

The following Passenger information should be displayed clearly within the bus:

Bus fare
Time of start of journey
Time expected to near destination
NTC Registration numbers of the bus driver and conductor
The number of the Bus
A clock in proper working order

The front and back of the bus should hold only authorized display material. Material that would obstruct, endanger or hinder the comfort of passengers as well as those on the road, should not be displayed or affixed to the bus. Therefore, any ornamental material displayed via electronic circuits or any other unauthorized decorations should not adorn the inside of the bus.

Only a radio device can be used within the bus as audio equipment and at a level that would not disturb or upset comfort levels of the passengers. The NTC has put into effect many actions to make certain that the new regulations are followed.

Consumer problem

Question: I purchased Five boxes of chicken soup cubes, on October 1, 2010, from a Grocery. I took these home, to my wife who found that two boxes were half filled with cubes and only the balance two were full. Out of the five boxes only two boxes were full. All the boxes were well packed.

I made a complaint to the salesman of the grocery, to say that only two packets were full and two boxes were half filled and other box , empty. I made a complaint to the Customer Care on the telephone number printed on the box. My complaint was tape recorded.

I purchased a fresh stock for my immediate use from the same grocery.

Since I did not get a response for my complaint. I am compelled to seek your assistance in this matter for cheating me by selling Soup cube boxes without the required soup cubes inside the well packed soup packets and make the customer believe the boxes contained the soup cubes.

Is there a possibility to make a complaint under the Consumer Protection Act to the Consumer Affairs Authority and claim compensation and damages.

Please help me in this regard as this would help many more consumers too. (edited details of company for legal reasons)

A Y L U Marikkar.

Sent by email

Answer: Under the Consumer Protection Act No 09 of 2003 you can seek relief. You can make a complaint to the Consumer Protection Authority within three months of the violation of consumer protection rights. The Act provides for the protection of consumers against the marketing of hazardous goods/services, against unfair trade practices, and strives to ensure that consumers have adequate access to goods/services at competitive prices and are able to seek redress against unfair and restrictive trade practices. The functions and responsibilities of the Consumer Affairs Authority and the Consumer Affairs Council are directed towards these purpose. Consumer Protection Authority will take legal action against shop owners against offenses like selling goods at higher prices than the registered price and disregarding hygienic conditions. The Council conducts of inquiries relating to complaints made by consumers, especially on anti-competitive trading practices. Therefore please make a complaint to the Consumer Protection Authority at the following address.

Consumer protection Authority
1 & 2nd Floor, Sathosa Building, No 27, Vauxhall Street, Colombo 02

What is a B Report?

Question: Would you kindly let me know as to what a B report is? I await your kind reply.

J Mirando, Wattala

Answer: It is a report filed by police under Section 115 (1) (2) (3) (4) and 120 (1) (2) and (3) of the Criminal Procedure Code Act No.15 of 1979 informing the Magistrate very briefly the nature and details of the offence that the accused is suspected of having committed.

In giving a B report note a lawyer, the client should give the year and Police Station.