Legal Aid Commission

Executive and Judiciary, the Indian experience

The theory of Separation of Powers was formulated by the French Scholar Montesquie. He was of the view that concentration of power in one person or a group of persons would result in tyranny. Hence the three governmental powers - Executive, Legislature and Judiciary should be kept separate in three different bodies independent of each other and that no organ should perform functions that belong to each other.

Many countries have incorporated this principal in to their Constitution at varying concentrations.

In India the Separation of Powers of the three organs are not found in a rigid sense.

For example the Supreme Court has power to declare void the laws passed by the Legislature and the actions taken by the Executive if they violate any provision of the Constitution or the law passed by the Legislature in case of executive action. On the other hand as seen above in the above instance the Executive can affect the functioning of the Judiciary by making appointments to the position of Chief Justice and other judges of the Supreme Court.

Drawing parallels to Sri Lanka, Supreme Court of India has far wider powers than that of Sri Lanka in the sense it has the power of judicial review. Even with such broad powers there has been times when the Executive controlled the decisions of the Judiciary as seen below

The case of Kesavananda proved to be a land mark case since for the Indian Judiciary both for the Judicial precedent set due to this judgment and for the executive control which was exerted on the Judiciary in the aftermath of the decision. Kesavananda a Senior Pontiff challenged the Kerala government's attempts, under two state land reform acts, to impose restrictions on the management of its property. Although the state invoked its authority under Article 31, which deals with land acquisition by the State, Kesavananda fought his case under Article 29, concerning the right to manage religiously owned property without government interference.

The thirteen- judge bench decided that an amendment could not alter the basic structure of the Constitution. It was held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution which are justice, freedom of expression and equality of status and opportunity. Fundamental Rights and Directive Principals of State Policy found in the Constitution had to be balanced and harmonized at all instances. This balance and harmony between two integral parts of the Constitution forms a basic element of the Constitution which cannot be altered.

The word ‘amendment’ must therefore be construed in such a manner as to preserve the power of the Parliament to amend the Constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution. There was thus an implied limitation on the amending power which prevented the Parliament from abolishing or changing the identity of the Constitution or any of its basic features.

The government of Indira Gandhi did not take kindly to this implied restriction on its powers by the court. In 1972 one of the dissenting Judges to this decision was made Chief Justice superseding three senior Judges in the bench. Such an action was never done before in the Indian Judicial History. This was described to be the “the blackest day in the history of democracy” and “an attempt of not creating ‘forward looking judges’ but ‘judges looking forward’ to the office of Chief Justice”.

The trend of the Executive controlling the Judiciary through its power of appointment of Judges continued in India throughout Indira Gandhi’s regime. India saw a period of emergency between 1975- to 1977. It is said the powers of Judiciary was controlled like never before by the Executive during this period. In the case of the Shiv Kant Shukla the Court decided in favour of a law which restricted the Constitutional rights of imprisoned persons and stated that the legality of a detention order cannot be challenged in Court.

The dissenting judgment in this case was given by H.R Khanna who stated ”detention without trial is an anathema to all those who love personal liberty... A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting Judge believes the court to have been betrayed.”

Yet again the Government retaliated personally on Justice Khanna by not appointing him as the Chief Justice though he was next in line according to seniority.

Soon after this case the New York times wrote: “The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society; and the Indian Supreme Court's decision appears close to utter surrender.” Even though Indian Judicairy is said to have wide powers when it comes to judicial review it can been seen from the historical events mentioned above, that the powers in the Constitution are slightly tilted in favour of the Executive.

However in the 1980s and thereafter Indian Supreme Court has taken over an activists role and has continued to make land mark judgments in public interest litigation cases. This is seen as the ability of individual judges to withstand pressure from the other arms of government rather than the Legal frame work which it is protected by.

The Sri Lankan Supreme Court on The other hand, under Article121 can review a bill in the light of it being inconsistent with the provisions of the Constitution. But once it is passed in to law the Courts cannot pronounce upon its validity and its power ends there.

Jurists have justified this stand of our Constitution on the grounds of upholding parliamentary Supremacy. In other words the decision of the body elected by the people of this country should be held supreme and should not be questioned by another body. In theory this maybe so. However on the practical side of things, an ordinary person might not be looking in to the daily activities of parliament.

He might not understand the extent of the bill brought before parliament. He might only understand its full consequence once the bill takes the shape of law and starts to be implemented. With large chunks of power vested in the Execute especially after the 18th amendment, and the Government holding a comfortable two third majority in parliament one must wonder how strong our judiciary actually is or has ever been and whether such control over the judiciary by both the other arms of the Government is in the best interest of a democratic state.

- Swasthika Arulingam, Project Manager, Program Support Unit, Legal Aid Commission

[Questions and Answers]

*******

Public petitions

Question : As a responsible citizen of Sri Lanka, I would like to know -

(a)What is a public petition?

(b)How can public petitions be sent?

The rules, if any.Your kind reply would be greatly appreciated.

- Suminda, Ragama

Answer : Any citizen could send a petition to Parliament for the redress of a grievance. The popularity of Public Petitions is evident by the large number petitions received by the Speaker.

(b)The petitions have to be presented to the Speaker by a Member of Parliament through the Secretary General of Parliament. However, only private members (those who do not hold ministerial portfolios) can move public petitions. The petitions should be in respectful language and devoid of irrelevant statements. They should be clear and legible and conclude with a request mentioning the relief sought. The petition has to be duly signed by the petitioners and their full names and addresses should be included.

The petitioners are not allowed to attach any affidavits or documents to their petitions. In a petition, no reference shall be made to any parliamentary debate. The Members who are in charge of the petitions must sign them before they are presented. Only private members (those who do not hold ministerial portfolios) can move public petitions. However, since recently even Ministers have submitted petitions.

Registration of Deaths (Temporary Provisions)

Question: I have already applied for a Death Certificate of my father who is missing for three years in Sri lanka. District Registrar refused to issue a Certificate of Death to me. What shall I do?

- Duminda, Kandy

Answer: According to the Registration of Deaths (Temporary Provisions) Act No 19 of 2010 ,you can appeal to the Registrar-General against such refusal within one month of the notification. According to Section 7 of the Act - An applicant who is dissatisfied with the decision of the District Registrar refusing to issue a Certificate of Death to him under section 6, or a person who has objected under section 5 to the issue of a Certificate of Death under this Act and who is dissatisfied with the decision of the District Registrar to issue such Certificate, may within one month of the notification of such refusal or issue, as the case may be, appeal to the Registrar-General against such refusal or issue, as the case may be.

The Registrar-General may after review of the material before him, either affirm the decision of the District Registrar, or direct the District Registrar to issue a Certificate under section 6, or disallow the report issued by that District Registrar under section 6, as the case may be.

Revoking nomination made earlier

Question: When I first obtained employment in a Private Company, I was unmarried. As such, I nominated my parents as nominees to receive my EPF benefits. I am now married. Will it be possible to revoke the nomination made earlier and nominate my wife? I await your kind advice.

- Farook Mohomad, Sent by Email

Answer: A member could revoke a nomination made earlier and Form “I” should be used for this purpose. If a subsequent nomination is required Form “J” should be perfected and forwarded to the District Labour Office situated in close proximity to the establishment.

Upon the marriage of a member, nomination made before marriage becomes canceled and null and void. On the death of a nominee, the right of the nominee stands revoked.

If the nominee is a minor a trustee could be appointed to function on his behalf. Refund of benefits could be paid to him and when the nominated minor becomes an adult on completion of 18 years, the appointment of the trustee will automatically get cancelled.

On the death of a member without a valued nomination, the refund of benefits will be made to the heirs of the deceased member.

Filing action against Son-In-Law

Question: I had an affair. Both our parents disagreed to our affair. So we eloped and got married legally. We are both over 18 years of age. However my father made a complaint to the police and thereafter I was arrested. I later got to know that her father is trying to file a case against me. Can he do so?

- Jayatunga, Dompe

Answer: If both of you are over 18 years of age and legally married, no one can separate both of you. If your wife’s father is trying to file a case against you, you can seek relief by filing a writ application in the High Court where you are residing.

Divorce without going to courts

Question: I have got registered (marriage), now lasting for around 3 months. We want to know what are the possibilities for us to get a divorce, without going to courts. Both of us are in an agreement and will not challenge each other in this matter. We do not want to go to courts.

Is this possible?

How can we do it?

How much time will it take?

Thank you very much for your valuable service.

- Bandula, Mahara

Answer: Under the Marriage Registration Ordinance 1907 and its Amendments, if you want to get a divorce, you have to fulfill one of the following three grounds:- adultery ,incurable impotency at the time of marriage, desertion.

Without going to courts, you cannot get a divorce. You have to file a case in courts where one of the parties resides. During the court proceedings, you can seek relief on the ground of desertion. If you need further information, you can visit any one of our Legal Aid Centers island wide and get free legal advice regarding your problem

‘Crossings’ on cheques

Question: I want to know the effect of crossing Cheques. Could you also explain to me the following types of crossing:

General Crossing, Special Crossing

I await your valuable reply through your Legal Aid Page. Your Page provides a great service to the country.

- Chanuka, Harispaththuwa

Answer: The crossing on a Cheque is a direction to the paying bank that the Cheque should be paid only to another bank. A bank can ignore the crossing and pay a crossed Cheque over the counter. However, if it later turns out that the person paid was not entitled to receive that payment, the paying bank will be liable to the true owner and will also forfeit the statutory protection of the Ordinance. This is because payment of a Cheque in contravention of a crossing would be regarded as negligence by the bank.

General Crossing

Where a Cheque bears across its face an addition of - the words “and Company” or any abbreviations thereof between two parallel transverse lines, either with or without the words “not negotiable”; or two parallel lines simply, either with or without words “not negotiable” - that addition constitutes a crossing and the Cheque is generally crossed.

Special Crossing

Where a Cheque bears across its face an addition of the name of a banker with or without the words, “not negotiable”, that addition constitutes a crossing, and the Cheque is crossed specially and to that Banker.

Cheating innocent customers

Question: My wife has gone to the Middle East. She sends foreign currency for family expenses. I went to a reputed Bank to ask them whether they could exchange it. I exchanged my foreign currency through this Bank and got Rs.80,000. I used this money to build a house for us. After a period of six months I got a letter from the Manager of the said Bank to meet him. When I met the Manager he informed me to pay back the Rs.80,000 either by mortgaging my house or by pawning my jewellery. I am a poor person and I am very helpless. The Bank is alleging that I have given them forged currency notes. Please advice me.

- Sent buy Email

Answer: You are not bound to pay back the Rs 80,000. It is the responsibility of the said Bank to check the foreign currency carefully before exchanging it. Therefore you are not bound to pay back the money. It is the negligence on the part of the Bank and as such do not sign or enter into any agreement with the Bank. If the Bank staff is trying to force you, please go to the police station and make a complaint. You could also come and meet us at our Head Office at No.129, High Court Complex, Hulftsdorp Street, Colombo 12 and we are ready to assist you in the matter.

EPF contributions

Question: My brother is working in a Mercantile Firm on a temporary basis after his return from abroad. He is holding an Executive post in the said Firm. I wish to know whether the nature of appointment/status of an employee affect contributions to the EPF? I await your kind reply.

- Saldadu, Colombo 9

Answer: While the nature of employment or status is immaterial, employers have to make contributions to the provident fund in respect of employees who are permanent, non-permanent, temporary, apprentice, casual, working few hours with intermittent breaks and working less than a day. Contributions to the Provident Fund should also be made for those who are employed on piece rate basis, contract basis, commission basis or unit (output) basis although the payments made by cash or a by any other form. The payable contribution to the Fund has to be calculated up to the extent of the value of the payment to the member.

Parliamentary questions

Question: I want to find out whether there is a procedure in asking questions in the Parliament? If so, the rules. Your kind reply would be greatly appreciated.

- W. Sirimevan, Nugegoda

Answer: The vital role of Parliament is performed mainly by asking questions from Cabinet Ministers. A question may seek to obtain information or an assurance from a Cabinet Minister on matters for which he bears responsibility.

The procedure in asking questions is that the Member desiring to ask a question should handover the text to the Table Office in Parliament giving seven days notice to the Minister.

Rules

Before a question can be placed on the Order Paper, it must satisfy a comprehensive set of rules governing its content. Some of them are as follows:-

It should either seek information or press for action.

It must relate to a matter for which the Minister to whom it is addressed is responsible as Minister.

It should be written in respectful language.

It should not exceed one hundred and fifty words.

It should not refer to any matter currently under adjudication by a court of law.

A question fully answered must not be asked again during the same session.

According to the current practice fifteen questions are listed on the day on the Order Paper and only three questions can be asked by any one Member on any one day. Usually a period of approximately 30 minutes is set aside for questions. However, in practice this has turned out to be a “flexi hour” and the Speaker would allow all questions to be raised and answered even though it would exceed the prescribed time limit.

Gratuity payment

Question: I am employed in a Mercantile Company for the last six years. I have obtained a loan from the Company to be settled in monthly installments. Please let me know in case I resign from the Company, can the Company deduct the said loan from the gratuity payable to me. Your kind reply would be greatly appreciated.

- Lalantha, Mawila

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.

Closure of company

Question: I have been a Director of a Company which had to be closed down sometime back due to continued losses.

On an application made to the Department of Labour by the Company or termination of employment of workers, the Department after due inquiries ordered that compensation be paid to workers and stipulated a date for closure.

In the meantime the Directors of the Defunct Company sold their shares to another party who has agreed to re-open the factory and provide employment to all who were there before closure and continue the business. A MOU was drawn.

My question is whether the former Directors are still liable to pay compensation in view of the position that there has been no termination of employment because the present Directors have agreed to employ the workers and the Company continues as a going concern.

On what basis are wages to be computed in respect of the interim period during which the factory was kept closed?

- S. Pathirana, Battaramulla

Answer: According to your question, the Company had made an application to the Commissioner of Labour for the termination of employment of all employees. An inquiry has been held by the Commissioner.

After hearing evidence the Commissioner has granted permission to terminate the services of the employees and awarded compensation. Under normal circumstances when computing compensation, the Commissioner takes into consideration the period where wages were not paid and also gratuity is computed separately.

Your question is not clear. In order to advise you in the matter, please send us a copy of your application to the Commissioner General of Labour.

Public nuisance

Question: I am a resident at Ratmalana and have been living there for the past 30 years. There is a factory close to our premises and the fumes that come from the factory are causing serious problems to the people residing in this area.

Besides breathing difficulties we are having difficulty in cleaning our houses as furniture, fittings, etc get covered by black layer of dust. Can we resort to any legal action? Please help.

- G. Fernando, Ratmalana

Answer: Under Section 98 of the Criminal Procedure Code, a Magistrate can make orders to prevent/stop any pubic nuisance caused by any person.

The Magistrate also can issue an injunction if immediate measures need to be taken to prevent injury to the public.

Therefore it is advisable to file a public nuisance action in the Magistrate Court praying for an injunction.