Legal Aid Commission

Constitution of Sri Lanka - 13th Amendment

The 13th Amendment to the constitution of Sri Lanka which was enacted in 1987 has been the subject of heavy discussion and debate due to its strong link to the ethnic question which has plagued our country since post independence.

The Amendment is a direct result of the Indo- Lanka Pact signed by the then Heads of State, Indian Prime Minster Rajiv Gandhi and President J R Jeyewardene.

This was done as an initiative to spread Executive, Legislative and Judicial powers to the provinces of Sri Lanka and not to have it solely concentrated with the President, Parliament and the exciting higher Judiciary in the Centre. The amendment was also seen by some as a starting effort to bring an end to the civil war and find a lasting solution to the various conflicting demands of the different communities in Sri Lanka.

The Amendment brought about interesting changes to the constitution.

Prior to the amendment, Sinhala was the only official language of the country. The Amendment brings about equal status to the Tamil language by making it also the official language together with making English as the link language. Proper implementation of this provision should result in any citizen being able to access any public service or document in either of the two administrative languages according to his or her preference.

One of the new features brought in to the constitution of Sri Lanka is the devolution of powers or spreading of powers to the provinces of the country through the establishment of Provincial Councils (PC). Hence, each province (and sometimes few provinces together) will have elections to elect the PC members. The number of members within a province can vary from Council to Council depending on the population of the Unit. In other words each PC can be considered as a small Parliament within the province with limited powers to make its own rules.

Each PC shall have a life period of five years from the period from which it was formed unless it is dissolved earlier. PCs have been given the power to make laws with regard to certain functions such as police powers, land, education, planning and implementation of local economic plans, local government, agriculture, rural development health etc of the Province. There is also a concurrent list where both the PCs and the Parliament can make law together. However the amendment has categorically mentioned certain functions know as the ‘reserved list’ over which the PCs have no power to enact laws such as defense, foreign affairs and Broad casting powers of the country. With all its powers the PCs can still be abolished if Parliament desires.

Each Provincial Council will also have a governor appointed by the President and he will function as the extended arm of the Executive within the Council Unit. The Governor has similar powers to that of the President within the restricted sphere of the PC. He is generally expected to act according to the instruction of the Board of Ministers though this is not mandatory. He has been given wide discretionary powers to make decisions which even the courts have been excluded from questioning. Further the Governor has been given powers to summon, stall and dissolve the council at his discretion, appoint the Minister and the Board of Ministers subject to certain restrictions and also decide upon or give consent to whether a law should be passed by the PCs. The Governor will hold office for five years and only the President has the ultimate power to remove him from his post in between this period.

The Thirteenth Amendment also brought about the establishment of High Courts in the Provinces. These courts were given similar powers to that of the Court of Appeal based in Colombo so that the workload directed to this court would be decentralized to the provinces as well.

Hence, these Courts have jurisdiction to determine on criminal matters within its province, appeal jurisdiction for matters decided in the Magistrate and Primary Courts and writ Jurisdiction which was only found with the Court of Appeal prior to this amendment

The amendment has been in the constitution for more than two decades now. However, successive governments have failed to give full life to the practical functioning if this amendment. For example since its inception due to various political reasons the North had never seen the establishment of a Provincial Council. Only a Governor has been appointed for this Province.

Powers over land and Police have been given to the provinces with certain restrictions. Police powers still remain with the Central Administration. Though powers of utilization and disposal of State land is vested with the Central Government the amendment provides that it should be done so in consultation with the PCs. With no PC existing in the Northern Province questions arise as to who the government will be consulting on making decisions with regard to land usage and alienation in the North.

Further by delaying the implementation of the 13th Amendment questions are raised as to whether the government is complying with the provisions of the constitution - the Supreme Law of the country.

Swasthika Arulingam AAL, Project Manager, Programme Support Unit, Legal Aid Commission

Seminar on ships and marine pollution

The Institute for the Development of Commercial Law and Practice, the Indian Ocean Marine Affairs Co-operation (IOMAC) and ONS will hold a seminar on the theme 'Ships and Marine Pollution' on November 6 from 8.30 am to 4.30 pm at IOMAC Auditorium, BMICH, Colombo 7.

With the vast development taking place along the coastal belt and shipping industry in Sri Lanka, the protection of marine environment has become a vital need of the country. Marine environment is polluted mainly by release of hazardous substances to the marine environment, transportation of ships and accidents etc. Marine pollution is a health hazard, marine tourism and marine activities. As this could create everlasting damage to the coastal ecosystem, it is a paramount duty to safeguard marine environment.

The Moderator of the Seminar will be eminent Commercial Law practitioner K. Kanag Isvaran, PC. The introduction to the programme will be made by the ICLP Secretary General S.S. Wijeratne. The keynote address will be delivered by Justice P. A. Ratnayake, PC Judge of the Supreme Court on Maritime Legislation.

The programme focuses mainly on the legal aspects of marine pollution. The resource persons will be IOMAC Secretary General Dr Hiran Jayewardene, Attorney at Law Ananda Lal Nanayakkara (Ships and Shore based Marine Pollution), Dr Malika Gunasekera, (The Role of the IMO and Increasing Threats of Oil Pollution: Where do We Sail?), Asvini Kariyawasam, (Disaster Response and Intervention of Marine Environmental Pollution Authority), Senior State Counsel Vikum de Abrew ( Role of the Director General of Merchant Shipping and other Statutory Authorities) and Attorney at Law Chandaka Jayasundara (Marine Pollution and Arrest of Ship Regime in Sri Lanka)

A panel discussion will follow the sessions. The target audience will be Attorneys at Law, Personnel from the shipping Industry, State bodies etc. For further details email- [email protected] or call on 0775375998, 0112346163/4.

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.legalaidcommission.com

Compilers : Kalani Medagoda AAL, LLB, LLM (Colombo) and Maas Rizna Nabeela

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Questions and Answers

Prohibited activities

Question: I want to know the prohibited activities within the coastal zones?

- Kanchana, Kurana

Answer: The following activities are prohibited by law, within the coastal zone: Removal of corals other than for research purposes, development within the designated protected areas much as national parks/sanctuaries, approval will not be granted for any development activity National Parks and sanctuaries located within the coastal zone including Vilpaththu, Yala, Kuman, Panama National Parks/Sanctuaries.

Removal of sand except in areas identified by CCD and any development activity within sand dune areas.

A structure free set-back (buffer zone ) should be maintained from the seaward side of the fore dunes up to the landward toe of the back dunes, where the total width of the fore dunes (primary dunes) and the back dunes (secondary dunes) is more than 100 meters at Kalpitiya, Talavila, Udappuwa, Hambantota Koholankala, Kirinda in the west and the south coast and 200 meters at Panama, Potuvil, Thirukkovil, Manalkadu, Kashurina beach and the Mannar peninsular in the east and the north coast.

Development within a radius of 200 m of archaeological, historical and religious sites designated by the Department of Archaeology.

Any development activity that will significantly degrade the quality of any area designated as being exceptional value.

Coin and Note

Question: Please Answer the Following.

1. Can I use coins for making jewellery or any other items?

2. Can I reproduce a currency note?

- Chamara, Chilaw

Answer:

1. No. In term of the Monetary Law Act it is an offence to melt, break up, perforate, mutilate, or use otherwise than as legal tender, any coin which is legal tender in Sri Lanka.

2. No. According to section 58(d) of the Monetary Law Act reproduction of a currency note in any form such as photocopying, scanning, drawing etc, without the authority of the Monetary Board, is an offence.

Genuine note

Question: How do I distinguish between a counterfeit note and a genuine note? What should I do, if I have received a counterfeit currency note?

- Naduni, Hokandara

Answer: All the currency notes issued by the Central Bank of Sri Lanka have high security features designed to combat counterfeiting. The Central Bank of Sri Lanka has produced a Guide (a leaflet) to assist to detect and deal with counterfeit currency.

1 The main security features that can be observed in a currency note are: -

2 Counterfeit currency notes should not be used as means of payment. The use of counterfeit notes deliberately for transactions is a serious crime that is punishable by imprisonment and/or payment of a fine. Even the possession of a counterfeit note is an offence. If a person detects a counterfeit note, he/she should refuse to accept it. A person, who has already accepted such a note, should try to remember how he/she might have obtained it and report it to the Police.

Security Thread, Watermark, See through feature, Intaglio (Raised) printing, Texture of the note, Micro lettering, Cornerstones- watermark

Evolution of Sri Lankan currency

Question: My child wants to obtain historical information on evolution of Sri Lankan currency? From where can I obtain above?

K Disanayaka, Tudella

Answer: The historical information of currency can be collected from the following museums and the publications.

i) The Central Bank Of Sri Lanka has established two museums at following places, where the historical information are available for the public

Currency Museum, Center for Banking Studies, No. 58, Sri Jayawardenapura Mawatha, Central Bank of Sri Lanka,Rajagiriya.

Money Museum, Regional Office,Central Bank of Sri Lanka, Stage I, Anuradhapura.

In addition to the above anybody can gather information from: www.museum.gov.lk

National Museum, Department of National Museum, Sir Marcus Fernando Mawatha, Colombo 7

Types of permits

Question: I have decided to start a development activity within the coastal zone. What kind of permits are issued by the Coast Conservation Department in such kind of activities? Further let me know, how to apply for a permit?

- Fathima, Mahara

Answer : Two types of permits are issued for development activities within the coastal zone. A permit issued by the Director Coast Conservation Department referred to as a Major Permit. A permit issued by the Divisional Secretary on behalf of Director is referred as Minor Permit.

When do you need a permit the permit issued by the Director/Coast Conservation

It is necessary to obtain a major permit issued by the Director of Coast Conservation for the following development activities in the coastal zone.

A major permit is required for the following activities: Dwelling houses and related structures of total floor area 1,000 sq. feet (93 Sq. m) or more, tourism, commercial and industrial structures, Recreational/sports structures, Harbour structures and navigational channels, roads, bridges and railway lines, public and religious structures, shoreline protection works, sewage treatment facilities and ocean outfalls, aquaculture facilities, waste water discharge facilities, disposal of solid waste, dredging, filling landscaping and grading, removal of sand, sea shells or vegetation, mining and reclamation, removal of corals for research, breaching of sand bars.

Reclamation

Installation of oil, air, water pipes and electricity lines, any other development activity that will alter the physical nature of the coastal zone.

For Minor permits such as construction of small houses, removal of small quantity of sand, you must consult Divisional Secretary of your area before commencement of such activities.

A minor permit is issued by the Divisional Secretary for the following activities: Dwelling houses and related structures of total floor area less than 1,000 sq. feet (93 sq.m)

Small scale commercial structures total floor area less than 350 sq. feet (32.5 sq.m)

Removal of sand up to two cubes from locations specified by the CCD. Removal of sand bars to prevent floods

All public works within the coastal zone are subject to CCD permit procedure. Hence Public Institutions must consult, CCD prior to commencing the development activities.

How to apply for a permit

Coastal development permit is a written document that grants legal authorization to engage in or conduct activities which are likely to alter the physical nature of the coastal zone.

The standard application form (photocopies not accepted) available in the CCD offices or Divisional Secretariats must use to apply for a permit.

The application requests, for basic information such as; applicant’s name and postal address, the location of the project and nature of the project, a statement of coastal erosion in the coastal reach of the proposed location, present land use, details of other agency approval obtained

Other documents required with an application

Copies of survey plans of the proposed site which are prepared within five years prior to the date of tendering the application. All copies should certify as true copies.

Copies of building plans including floor area (certified by an Architect).

Proof of payment for the specified permit fee: (The specified permit fee is varying according to the floor area of the proposed building and the relevant fee could be paid by cash or postal/money order or cheque drawn in favour of Director, Coast Conservation).

The Department will allocate a special number for each application. (In all future correspondence this permit application number must be referred to by the respective developers.

On completion of administrative check in procedure a site inspection will be carried out by the officers of CCD. After careful screening by the Planning committee at the Department, a permit will be granted with conditions or denied.

If your permit is denied, you may appeal to the Secretary of the Ministry of Fisheries and Aquatic Resources Development or if you are eligible under the guidelines given in the CZM Plan you may submit a Variance application to the Secretary/Chairman of the Coast Conservation Advisory Council; The permit application review process involves several steps which include technical review, site inspection and evaluation, co-ordination of inter agency review.

Borrower defaulting installment payments

Question: We acted as guarantors to obtain a loan from a Government Bank. According to the Bank statements,the person who obtained the loan did not repay to the bank installments and ignores their reminders. What shall we do in this regard? Please advice us.

Sent by email

Answer: According to the Debt Recovery (Special Provisions) Act No.2 of 1990 and its amendments No.9 of 1994, the Bank has the power to recover the money from the surety when the borrower defaults payment. Section 2 (1) states as follows:-

“A lending Institution may subject to the provisions of sub-section (2) recover debt due to it by an action instituted in terms of the procedure laid down by this Act, in the District Court within the local limits of whose jurisdiction - a party defendant resides; or the cause of action arises; or the contract sought to be enforced was made….etc..

You should be aware that when you are signing as a Guarantor to a loan, you are legally bound to pay the loan if defaulted by the borrower.

Committee on Public Petitions

Question: Please let me know the details of Parliament committees on Public Petitions and the procedure of forwarding a petition to a Committee?

- Tissera, Mahawewa

Answer: Parliament committees on Public petitions consists of ten members nominated by the Committee of Selection.

The duty of this Committee is to consider the petitions sent by the public and referred to it by the Parliament and to report back to the Parliament its opinion on the action to be taken in respect of such petitions. This Committee has the power to summon before it and question any person, call for and examine any paper, book, record or other document and to have access to stores and property.

Procedure of forwarding a petition to the Committee on Public Petitions in accordance with Standing Orders

Standing Orders. No. 25 A - Petitions

Every petition to Parliament shall be addressed to Mr. Speaker and shall be presented by a member.

Every petition shall be in respectful language and shall not contain irrelevant statements

Every petition shall be clear and legible and shall conclude with a prayer reciting the relief sought

Every petition shall be signed by the petitioner, or petitioners except in case of incapacity by sickness.

A person unable to write shall affix his mark in the presence of a witness.

The full name and address of every signatory to a petition shall be set out therein. No letters, affidavits or other documents shall be attached to any petition.

No reference shall be made in a petition to any debate in Parliament.

It shall not be competent for a member to present a petition from himself but the same may be presented by some other member.

Every petition shall, before it is presented, be signed at the beginning thereof by the member in charge of it and deposited at least two clear days with the Secretary General who shall submit it to Mr. Speaker for approval and no petition shall be presented until it has been so approved.

A member presenting a petition shall confine himself to a statement in the following form :-

Mr. Speaker, I present a petition from ............................... (Name of Petitioner) of ............................... and ............................... others’

No debate shall be permitted on this statement.

A petition having been presented to Parliament shall stand referred to the Committee on Public Petitions.

Maintenance case

Question: I want to know whether as a husband could I file a maintenance case against my wife? Your early reply would be greatly appreciated.

- Tanura, Kalubowila

Answer: According to the Maintenance Act No 37 of the 1999, as a husband, you can file a maintenance case against your wife on behalf of you and your children.

If you are keen to file a maintenance case, you must first obtain a certified copy of the Marriage Certificate. If you want to ask maintenance of your children you have to submit the children's birth certificates. If you need any help you can contact our legal aid centres in islandwide.

Consumer problem

Question: There are so many unfair trade practices in Sri Lanka. Is there a possibility to make a complaint against unfair trade practices under the Consumer Protection Act?

- Dayani, 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 and 2nd Floor, Sathosa Building, No 27, Vauxhall Street, Colombo 2.