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Saturday, 25 February 2012

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Crime and punishment

Punishment is an integral part of the Criminal Justice system. Historically, criminal law evolved to safeguard the rights of law abiding citizens and ensure law and order in society. In Sri Lanka, the pre-British forms of punishment imposed specially in the Kandyan Kingdom were often described as overly harsh and sometimes barbaric. The death penalty or Capital Punishment had always been the ultimate punishment in human society. But methods of execution of death penalty were varied. Robert Knox in his book on the 18th century Ceylon Kingdom depicts the death penalty been imposed by killing offenders on stake or being crushed by an elephant . The last monarch of an independent Kandyan Kingdom, King Sri Wickramasinghe enraged by the perceived treason of chief Adigari , resorted to extreme form of punishment to kill the elder son by decapitating and crushing infant son by pounding up in the mortar by the Ehilapola Kumari and drowning her to death.


Justice Minister Rauf Hakeem being greeted by Legal Aid Commission(LAC) chairman S.S.Wijeratne at the opening ceremony of the New Legal Aid Centre at Kadawatha on February 18. LAC Director General Justice Hector Yapa and Senior LAC Consultant Justice Nissanka Udalagama were also present on the occasion.

The last recorded punishment of enraged monarch were barbarous as the offences were high treason. However, the inhuman brutality of punishments meted out were brutal beyond the provision of Dharmishtar rule. (The population enraged at the monarchs unbridled cruelty, A major reason for the Kingdoms aristocracy, secretly welcome the occupation of the Kandyan Kingdom by the British, Ultimately resulting in the capture of the King and the Kandyan Convention in 1815.

Punishment in ancient Sri Lanka was not always excessive or barbarous but the British rulers retained the basic punishment of Death penalty to incaseration banishment from the kingdom, or relegating to slavery and lower states in society. A running thread through punishment were restoration and compensation to the Victim to restore status quo anto. The rules of punishment were rule based and never arbitrary. The forms of punishment in ancient Sri Lanka were based on Dharmasastra and depicted in deferent contemporary stone inscriptions such as Galpote or Virelkitiya or Badulla. Form of punishment should always commensurate with the crime and attending circumstances relating time and place of crime.

Dr. Justice ARB Amerasooriya who has done a study of the areas of punishment in ancient Sri Lanka , in his seminal publication, The legal Heritage of Sri Lanka with the assistance of old commentaries and inscriptions, has stated that punishment may be imposed by societies for the alleged purpose retaliation , retribution, requital, recompense, lenition against others or further transgression, rehabilitation or for the achievement of several such purpose . The ethos behind the Plethora of forms of punishment in ancient Sri Lanka was compassionate and diverse. The role of the king included his duty to punish offenders for the greater good of the society. However , the ruler was given the latitude chose from among a variety of punishment a suitable form to fit the crime and the criminal. The dominants rationally in ancient punishment were expiation , requital and rehabilitation. The rare exceptions of harsher punishments were imposed in the case of treason and sedition.

The legal duty of modern day Judge is related more to maintain Law and Just orders. Judiciary has inherited the sovereignty and right of our punishment over ancient kings. It is the sacred duty of the Judiciary to impose punishment to be inspired by our ancient Jurisprudence . The straight laced limitation introduced in the penal code and relevant statutes should be reflected upon and augmented by comparatively humanitarian doctrines of punishment such as expiation, rehabilitation in pronouncing punishment.

- S.S. Wijeratne


New LAC centres at Kadawatha and Kesbawa Courts

In keeping with the national policy to provide Legal Aid to deserving persons in all Court Complexes in Sri Lanka,the LAC recently opened recently the 69th and 70th Legal Aid Centers at the Court Complexes in Kadawatha and Kesbawa.

Under the National Policy on equal Access to Justice for all , the Legal Aid Commission in collaboration with Ministry of Justice plans to establish Legal Aid Centres in court complexes islandwide.

The new Court Complex in Kadawatha will house a Magistrate's Court covering provisions of nine Police stations (Kadawatha, Kiribathgoda, Peliyagoda, Peliyagoda SCIB, Kelaniya, Ragama, Meegahawatta, Biyagama and JaEla). Plans are a A District Court is scheduled to be established in Kadawatha.

Minister of Justice Rauf Hakeem, Justice Ministry secretary Kamalini de Silva, Kadawatha Magistrate Darshika Wimalasiri,Justices Hector Yapa and Nissanka Udalagama and LAC chairman S.S. Wijeratne participated at the opening ceremony.


[ Questions and Answers]

Obtaining a duplicate certificate and the vehicle identity card

Question: I have a car. The vehicle identity card and the registration certificate of my car has been misplaced. Can I apply for a duplicate vehicle identity card and the registration certificate of the vehicle ?

Answer: Yes , You can obtain a duplicate of the registration certificate of the vehicle and the vehicle identity card .

CMT 65 application

A certified copy of the complaint lodged with the Police with respect to the loss of that certificate and the receipt of payment for that.

In case a mortgage / an absolute ownership / a lease has been registered, a letter issued by the relevant institution stating that it does not object to the issue of a duplicate. If the original of the registration certificate or the vehicle identity card is disfigured or partially destroyed, the same should be submitted as well. A photocopy of the national identity card. A CMT 130 application to obtain weight certificate of a vehicle.

Procedure

The above-mentioned documents should be submitted to the Technical Branch and thereafter prior approval for the conversion should be obtained from the Commissioner General of Motor Traffic.

Producing the approval documents and the vehicle to the Werahera office and obtaining weight certificate and fuel conversion of vehicle can be performed after handing over the documents to the relevant branch.


Duplicate of the number plate of a vehicle

Question : Please let me know the documents needed to obtain a duplicate of the number plate of a vehicle with English letters.

Answer: CMT 65 application form

A certified copy of the complaint lodged with the police on the loss of the number plate / sticker and the receipt of payment in that respect.

If a mortgage / an absolute ownership / a lease has been registered, a letter issued from the relevant institution intimating that it does not object to the issue of a duplicate of the number plate / sticker. If the original of the number plate / sticker is disfigured or partially destroyed, the same should be submitted as well. A photo copy of the national identity card.


President’s Fund grants assistance for deserving patients

Question: Please let me know how can I find the Presidents Fund contact details

Answer: You can obtain the details of following address

Address: No.41, Renuka Building(Ground Floor), Janadhipathi Mawatha, Colombo 01.Tel: +94 11 2386801+94 11 2382316+94 11 2331245+94 11 2431610

Fax: +94 11 2331243E-mail: fundsecretary@presidentsoffice.lk


Payment of Gratuity

Question : What are the basic requirments that have to be fulfilled to obtain Gratuity? Which categories of workers cannot benefit from the Payment of Gratuity Act?

Answer: The basic requirments that has to be fulfilled to obtain Gratuity

The Payment of Gratuity Act No. 12 of 1983 provides for the payment of gratuity by employers to their employees under the Amendment to the Land Acquisition Act, the Land Reform Law and the Industrial Disputes Act. The Act has two parts: Part I applies to workers in the plantation sector who ceased to be employed upon the take-over of estates or lands which were vested in the Land Reform Commission.

Part II of the Act makes every employer who has 15 or more workers on any day during a 12 month period, liable to pay gratuity.

If the worker has completed five years or more of service prior to termination, the employer must pay that worker within a period of 30 days, half a month’s wages or salary for each year of completed service. The gratuity will be calculated against the last month’s wage drawn by that worker. When the worker is a piece-rated worker, the daily wage or salary shall be computed by dividing the total wage received by him/her for a period of three months immediately preceding termination, by the number of days worked by him in that period. The Amendment Act No. 41 of 1990 has provided for the payment of gratuity to employees of public corporations and government owned business undertakings if they are converted into public companies.

Categories of workers who cannot get benefits from the Payment of Gratuity Act

.Domestic workers

.Personal chauffeurs in private households

.Employees of co-operative societies

.Employees who are entitled to a pension under any non-contributory pension scheme

.Workmen designated under the Indian Repatriates (Special Provisions) Law of 1978

.Any establishment employing less than 15 persons during the period of 12 months immediately preceding the termination of services of a worker


ETF

Question : Please answer the following

What is the Employees’ Trust Fund (ETF)?

Who can be a member of the ETF?

What is the contribution and who makes it to the ETF?

When can I claim my benefits from the ETF?

What are the benefits under the ETF social security programme?

Answer: Employees’ Trust Fund (ETF)

The main objectives of ETF are:

To promote employee ownership, employee welfare and economic democracy through participation in financing and investment

To promote employee participation in management through the acquisition of equity interest in enterprises

To provide for non-contributory benefits to employees upon retirement

Eligible for a member of the ETF

All workers who are employed in private and public sector undertakings in the following categories are eligible to membership under the ETF:

Permanent, Temporary, Casual Contract, Piece-rate wages, Learners and apprentices

The Act exempts:

.Domestic servants

.Employees in religious, social or charitable institutions employing less than 10 employees

.Industrial undertakings training juvenile offenders, orphans, or persons who are destitute, deaf or blind

.Businesses where only family members are employed

.Persons who are self-employed and migrant workers are also eligible to ETF membership on a voluntary basis as published in the Schedule in Gazette Extraordinary No. 171/2, 14/12/81.

Contribution to the ETF

.Every employer to whom the ETF Act applies must make a contribution on a monthly basis of 3 percent of the total earnings of the employee.

.There is no recovery from the employee and the liability of this contribution lies solely with the employer.

.If the employer delays in forwarding the contributions according to the legal timeframe, then the employer is liable to a surcharge.

Under Section 44, ‘earnings’ is defined as:

.Wages, salary or fees

.Cost of living allowance, special living allowance and other similar allowances

.Payment in respect of holidays

.The cost value of cooked or uncooked food provided by the employer to employees

Meal allowance

Any other forms of remuneration as may be prescribed (by the ETF Act)

The following payments are not considered a part of earnings and exempted from ETF:

Incentives, attendance, productivity or night allowance,overtime,bonus and service charge


Forfeiture of gratuity

Question: Could you please let me know whether gratuity could be forfeited and on what grounds can it be forfeited?

Answer: The employer is entitled to make deductions from the gratuity payable under the Gratuity Act in the following circumstances:-

the termination of services for reasons of fraud, misappropriation of the employer’s funds.

the termination of services for willful damage to the property of the employer.

the termination of services for causing the loss of goods, articles or property of the employer.

The forfeiture can be made only to the extent of the damage or loss caused. Loans and advances cannot be deducted from gratuity payments. A Labour Tribunal can review the amount deducted from gratuity payments.


Number of lost deed

Question: A deed has been misplaced 30 years before. It was owned by my mother . She has since expired. She did not give any information regarding the said deed. The land in question is being used illegally but there are no constructions. Please help me to find out the number of the deed.

Answer: You have not mentioned where the land is situated. All the lands have been assessed by the relevant Local Authority and the owner has to pay rates to the Local Body. So please go to the relevant Local Body and go through the register and get the particulars regarding the deed and apply to the relevant Land Registry and get the certified copy of deed and encumbrance sheets, if necessary. You have not mentioned as to who pays rates to the Local Body and whether you still got to the land and maintain the boundary premises or boundaries.

You are the legal owner of the land if you have the deed and the land is entered in the assessment register as yours. You have to find out whether the man who uses the land, as mentioned by you in your letter, objects to your entering the land. Otherwise he can always claim prescriptive rights in his favour against you.


Gratuity payment

Question: I am a director in a private company. I have employed a personal driver who has been working with me for well over 20 years. I was paying his salary out of my own funds. He has informed me that he would like to retire by the end of June 2009 due to ill health. Is he entitled to get gratuity under the Payment of Gratuity Act No.12 of 1983. Kindly advice me.

Answer: It is provided in Section 7 of the Payment of Gratuity Act No.12 of 1983 that – if a workman is employed as a domestic servant or as a personal chauffeur in a private household or entitled to a pension under a non contributory pension scheme,will not qualify for any gratuity. The chauffeur concerned was paid salary out of your own money and not from the Company. In addition, he is not an employee of the company. He will therefore not be entitled to any gratuity under the Act. If he has been a loyal worker, you are free to make an ex-gratia payment which is not a legal entitlement.


Accident cases

Question: My brother met with an accident two years ago and his leg was broken due to this accident. The Magistrate’s Court case was over and the driver of the vehicle was convicted. A civil case has been filed at present and the case is pending. While the civil case is proceeding, my brother met with another major accident and died on the spot.

Please let me know, in such a situation, whether the civil case will be dismissed on the ground that the Plaintiff (my brother) is dead. My parents are too old and they are not in a position to hang around in courts. I am his only unmarried sister and my deceased brother was the breadwinner in our family. Please advise us.

Answer: In such situations, your parents or the deceased’s heirs can be substituted as a party to the case and proceed with the civil case. Substitution should be made as soon as possible before the next date of the case.

Further, we would like to advise your parents can also file another civil case in respect of the 2nd major accident of your brother within two years from the date of the accident. If you need further advice regarding this matter you can any one of our Legal Aid Centers island wide.


Last Will

Question: I am 82 years and of good sound mind. I have two children (son and daughter). They are happily married and living in houses of their own. I still have properties left in my name. I wish to give the said properties equally to my two children after my death. Hence, I have decided to write a Last Will so that after my death no problems will arise among my two children. I would be thankful if you could kindly let me know the main facts that have to be included in a Last Will. I await your early response.

Answer: You have the full right to transfer your property in the manner you wish. The following main points could be included when writing your Last Will.

A clear statement of the manner in which the assets should be distributed should be included.

*If there are children of minor age a caretaker could be appointed.

Ideas relating to the manner in which funeral activities should be performed could be included.

An executor could be appointed for the proper distribution of the estate.

* In your case this is not necessary because your children are not minors.


Registration of elders’ home

Question: We want to run an elders’ home in our area. Where do we have to register it ?

Answer: According to Section 16 of the Protection of the Rights of Elders (Amendment ) Act ,No 5 of 2011,you have to register your home under the Elders Council . If not it is an offence under this Act. Section 16 of the Act says that -

” 16(1) Every person or organization whether voluntary or otherwise , engaged in the establishment and maintenance of any institution intended for providing residential care for Elders , shall if such institution has more than five elders residing therein , register such institution in accordence with the provision of this Act

Any person or organization who fails to comply with the provision of subsection (1) shall be guilty of an offence under this Act “

Therefore it is advisable to register it under this Act with the said Council. The address is as follows :

Council of Elders - LHP Building, Nawala Road, Nugegoda.


Mediation Board Act

Question: Is there any recent Amendment introduced to the Mediation Board Act No 72 of 1988

Answer : Yes, there is a recent Amendment to the Mediation Board Act ,No 72 of 1988.

That amendment is called Mediation Boards (Amendment) Act,No. 4 of 2011

Section 7 of the Mediation Boards Act,No 72 of 1988 has been amended in subseection (1) of that section as follows(1) By the substitution in paragraph (a) of that Subsection for the words “ twenty five thousand rupees in value “ of the words “ “ two hundread and fifty thousand ruppies in value

by the substitution in paragraph (C) of that subsection for the words “ second schedule to this act “ of the words “ second Schedule to this act or : and

by the insertion immediately after paragraph (c) of that subsection, of the following paragraph

“(d) the offence under section 367 or 368 B of the Penal Code is committed by a person below the age of eighteen years , in respect of any property , the value of which does not exceed rupees five thousand .”

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