Introduction:

Renewed attempts to curb corruption

Newspapers recently announced a Plan of Action to curb corruption sponsored by the USAID through Anti-Corruption arm in Sri Lanka. This should receive the attention of policy makers and all citizens who are concerned with good governance. We should be grateful to a donor agency for taking the initiative.

Among the list of activities listed is passing necessary legislation to implement the UN Convention Against Corruption (UNCAC) which we ratified in 2004. After the SC Judgement in the Sinharasa case more ratification of International Conventions are insufficient to make applicable unless Sri Lankan Parliament legislate its applicability.

Sri Lankans who are interested in seeing Sri Lanka benefiting from UNCAC should lobby our legislators to enact the necessary legislation. Some of our FAQ’s about the UNCAC are as follows:-

1. What is UNCAC?

The United Nations Anti Corruption Convention adopted in October 2003 is signed by 160 signatory countries is “Considered the most comprehensive” anti corruption international instruments (David Luna)

2. What is Unique about UNCAC?

It is the only comprehensive, Global effort against corruptions, which in the words of the former US Attorney-General, John Ashcroft “Corruption steals from the needy to enrich the rich” - UNCAC deals with:-

(a) Preventive Measures

(b) Control of Election campaign funding

(c) Code of Conduct for Public Servants.

(d) Private Sector corruption included

(e) Stringent Auditing and Accounting standards

(f) Mobilizing civil society sentinels of corruption.

(g) International steps to recover stolen money stashed in foreign banks.

(h) Enable countries to recover stolen assets from other countries.

3. Should corruption be graded?

No. But, some grade corruption as Minor (Tips and Santhosams) and grand corruption such as political and Multi-National cooperate corruption.

4. What is the worse form of corruption?

All corruption is bad, but Judicial corruption is considered the worst. It corrodes the society and sullies the temples of justice. 2547 years ago, Lord Buddha condemned judicial corruption in stanza 256 of Dhammapada. That judges should abide by the law and not by benefits.

5. What is “Culture of Corruption?

Countries which tolerate corruption as an inevitable fact of life. For example in Sri Lanka since the open economy in 1978 up to 2005, no major offender of corruption had been found guilty.

The Private Sector is an important partner in corruption as they are the “givers” especially during election campaigns.

6. What are the consequences of Corruption?

Increase transactions costs and reduce predictability. The costs of corruption are ultimately passed on to the poor consumers. Impedes economic development awarding profitable contrasts to wrong people at wrong prices.

Transparency of transactions is suppressed and projects veer towards unsustainable large scale and projects money goes from projects to pockets.

7. What mechanisms are in existence in Sri Lanka to curb corruption?

The Commission to Investigate Bribery or Corruption (CIABOC) established in 1994, was ineffective due to bureaucratic fighting until recently.

According to the 2004 report CIABOC could convict 10 out of 859 complaints mostly from the Courts administration. Transparency International, Sri Lanka Chapter which promotes general awareness on ill effects of Bribery and Corruption.

8. Who are “Sentinels of Corruption”?

CIABOC in Colombo wait for public complaints before taking action but Sentinels of Corruption who would be trained Lawyers stationed in Legal Aid Centres in the first instance in Tsunami affected districts, will spearhead awareness programmes about CIABOC and the UNCAC and advise victims to make complaints in safety.

The Sentinels Division of LAC Colombo, will coordinate with CIABOC Transparency International agencies to promote “whistle blower” protection legislation and regulatory reform. The LAC laws will promote amendment to CIABOC Law in line with UNCAC.

S.S. Wijeratne.

Questions and Answers

How to overcome public noise

Question: Loudspeakers are used indiscriminately today for various types of functions and events:

(a) Who is the authority which controls the use of loudspeakers?

(b) Can loudspeakers be put on right throughout the night, etc?

(c) How can a person who is affected by the emission of the unbearable noise obtain relief?

Please advise through your Legal Aid Page.

Rohana Soysa, Panadura

Answer: As per your question, it is the police who have power to stop or issue the limits of using loudspeakers. But if the noise is throughout the night, then the police has the power to stop such nuisance. Therefore you can make a complaint to the nearest police station and thereafter file a public nuisance case in the Magistrate’s Court. If the noise is persistent, the relevant Municipal Council, the Chief Public Health Inspector also has the power to intervene in the matter.

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Use of Electronic Payment Cards

Question: Today most of us use Electronic Credit Cards to purchase goods in supermarkets and also for settlement of utility bills. Could you let me know what are the various types of electronic payment cards frequently used by most people?

Achini Perera, Avissawella.

Answer: The electronic payment cards have become a convenient mode of payments and banking transactions reducing the need for currency notes and coins. There are mainly three types of electronic payment cards.

Credit Cards - Credit cards provide the facility to purchase goods and services on credit upto a limit given by the card issuer and the cardholder can pay within the period as per the card issuer’s terms.

Credit cards can also be used at Automated Teller Machines (ATMs) of banks for certain banking transactions such as withdrawal of deposits and transfer of funds between the accounts of the cardholder.

Debit Cards - Debit Cards can be used to purchase goods and services through payments made directly from the cardholders bank accounts to merchants account. Debit Cards also provide the access to certain banking transactions at ATMs.

Prepaid Cards - These cards are issued for a specific value of money paid in advance to the card issuer. The cards can be used to purchase goods and services upto the prepaid value. The cardholders can refill the value in cards by paying money to the card issuer.

Note: There are risks involved in using these credit cards due to skimming and duplicating (cloning) of cards. With the technological innovations, fraudsters, thieves and organised criminal gangs have invented new method of skim.

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Celebrating ‘World No Tobacco Day’

Question: Tobacco is the second major cause of death in the world. It is well known that half the people who smoke regularly today - about 650 million people - will eventually be killed by tobacco. Equally alarming is the fact that hundreds of thousands of people who have never smoked die each year from diseases caused by breathing second-hand tobacco smoke.

Please let me know through your valuable Daily News Legal Aid Page the importance of celebrating the “World No Tobacco Day” in Sri Lanka.

P. Jagath from Mt. Lavinia

Answer: World No Tobacco Day is sponsored annually by the World Health Organisation to call attention to the global health burden resulting from tobacco use. This year’s observance focuses on second hand smoke and highlights the progress that has been achieved around the world in protecting non-smokers by making workplaces and public spaces smoke-free.

Sri Lanka withstanding the heavy lobbying by the merchants of death is enforcing National Authority on Tobacco and Alcohol Act No. 27 of 2006 with effect from 01st December 2006.

Within one week, 500 violators of the law had been produced before courts. According to the Health Ministry officials during the first three months tobacco sales have plummeted by 30% and alcohol by 20%.

It is also reported that the Government is confronting heavy pressure from the tobacco and alcohol industries to relax the law, but so far the State has not relented.

Prohibition of sale of tobacco or alcohol products to minors.

Section 31 prohibits sale of tobacco and alcohol products to minors under 18 years of age with a penalty of Rs. 4,000 fine and/or one year imprisonment. This section aims to prevent schoolchildren having access to tobacco and alcohol products. The banning of automatic vending machines is another provision in the same direction. Tobacco products should carry in legible print a health warning in their packages.

Prohibition of advertisements

Not so long ago tobacco and alcohol industries were the leading advertisers and sponsors of different kind of sports and games. Section 25 of the Act bans tobacco and alcohol advertisements, a contravention of which could attract Rs. 2 million fines. Article 36 prohibits sponsoring events with a punishment of 2 years imprisonment/or Rs. 50,000 fine.

Reducing second hand smoking

Smoking in enclosed public places is prohibited with the exception where the enclosed public place could accommodate more than 30 persons and separate smoking section had been established.

Enclosed public places are enumerated in section 5 of the Act to include Government buildings, schools, places of worship and super markets. The punishment for smoking in public places is 1 year imprisonment and/or fine of Rs. 2,000.

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How to get probable age certificate of children who live in Govt approved homes./custody of persons?

Question: How can the date of birth of a child under 14 years of age whose birth cannot be registered according to normal procedure be registered?

P. Amal, Nugegoda.

Answer: Children referred to above fall into two categories. They are -

1. Children who live in government approved homes

2. Children who don’t live in government approved homes but who live in the custody of other persons.

In order to register the probable age of children under 14 years who live in Government approved Homes, the following documents are necessary to be submitted to the Registrar of the relevant Divisional Secretariat.

1. Affidavit of the warden of the relevant home

2. Certificate of probable age issued by a government doctor (the doctor’s official seal is necessary)

3. Other documents giving relevant particulars of the child (if available)

The following documents are necessary to register the probable age of children who don’t live in government approved homes:

1. Affidavit of the custodian

2. Certificate issued by the Grama Niladhari to the effect that the child in question is living with the custodian (the certificate should be co-signed by the Divisional Secretary) or certificate issued by Probation and Child Protection Officer of the Department of Social Services or certificate issued by the officer in charge of the respective police division

3. Certificate of probable age issued by a government doctor (the doctor’s official seal is necessary)

4. Health records of the child containing his/her name, date of birth and age

5. If the child is attending school a certified copy of the admissions list.

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Refund of W & OP contributions after death of spouse

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 years 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?

M. Wikram,Anuradhapura

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

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Where to report incidents of bribery and corruption in Government Sector

Question: The society is full of corruption. We observe that most of the people are used to this method to get their work done in the Government Sectors. I have come across so many instances. Please let me know the Authorities to bring such kind of bribery and corruption activities?

Student from Galle

Answer: Under the Bribery Act No. 11 of 1954 and its amendments No. 19 of 1994 it is an offence for Government Servants to take bribe to fulfill the needs of other people. Such persons can be convicted under this Act. If you wish to inform such kind of activities, please report same to the following address:-

The Chairman, The Commission to Investigate Allegations of Bribery or Corruption, No. 36, Malalasekara Mawatha, Colombo 07. Tel Nos. 011 2586841, 011 2596362, 011 2584872, Hot Line No. 011 2586257, Fax No. 011 2596014, 011 2595045, Email-sccy@sltnet.lk

You can report the matter by giving your name or it can be reported confidentially. The Legal Aid Commission has also set up an Anti-Bribery & Corruption Unit where you can report such matters. Please send your information to the Legal Aid Commission, No. 129, High Court Complex Colombo 12, and Tel. No. 011 5646550.

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Is it necessary to attach the old passport when applying for a new one?

Question: I possess a Sri Lankan Passport. I travel to so many countries through this passport. However I noticed that all the available space for visas on the passport has been exhausted.

I wish to know whether I should apply for a fresh Passport? Is it necessary to attach the Passport already held by me to the new passport?

Shanaka Tisera, Italy.

Answer: The answer is “Yes”. No additional Sri Lankan Passport should be issued to a person already holding a valid Sri Lankan Passport. If however, all the available space for visas on a Sri Lankan passport has been exhausted, the holder must apply for and obtain the fresh passport.

Where the valid visas appear on a passport with all visa pages exhausted and the holder intends to travel to the Countries for which such visas have been obtained, the new passport issued to such holder should be attached to the passport already held by him/her and an endorsement must be made on the new passport in the following terms -

“The holder previously travelled on Sri Lanka passport No .... issued on .... by .... Which bears valid visa for....

Official date stamp

Signature/ Official Designation on issuing Authority”

This endorsement must also be made in the case of a new passport issued to a person, the validity of whose passport has expired at the end of 10 years from the date of original issue and which bears valid visas for one or more countries, except those countries which are not officially recognized by the Government of Sri Lanka.

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Can substitution be done in Labour Tribunal cases

Question: My services were terminated on 10.02.2007. I filed an action in the Labour Tribunal, Colombo against Mr. Felix Perera, Proprietor of “Superfine Furniture”, Moratuwa, where I was employed from 07.04.1990. He gave evidence at the inquiry before the Labour Tribunal and his case was concluded on 10.05.2007. The case is now fixed for 30.07.07 for me to give evidence.

Felix Perera had passed away on 25.05.2007. No contributions at all were made to EPF and ETF. I have worked late hours daily including Saturdays and Sundays without any additional payment.

I have not made a complaint to the Commissioner of Labour as I was advised not to do so after the Labour Tribunal case is concluded. I contacted Mrs. Felix Perera. She is not prepared to do anything.

I am now fifty years old with heavy family responsibilities. I am helpless. Please advise me as to what I should do.

P. Joseph Panadura.

Answer: Although the Industrial Disputes Act does not provide for substitution in a Labour Tribunal case, the Superior Courts have held that substitution could be done.

You can make an application through your Attorney-at-Law or representative to substitute Mrs. Perera and proceed with the case in the Labour Tribunal. In relation to EPF and other legal dues, you can make a complaint to the Assistant Commissioner of Labour, Colombo South, 6th Floor, Labour Secretariat, Colombo 5 who will decide the appropriate course of action.

In relation to ETF, you can make a complaint to Enforcement Officer, ETF Board, Nawala Road, Colombo and ask for relief.

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Quotes from judgements SC (FR) 10/07 to 13/07

R. Haputhantirige, D. H. A. Jayawardena, I. I. Karunaratne and D. P. Weerasinghe vs The Attorney-General

Grade I School Admissions

“Admissions to Grade 1 in Government schools have resulted in a large number of applications being filed each year in this court alleging infringement of the fundamental rights guaranteed by Article 12 (1) and also in the Court of Appeal or writs of certiorari and mandamus.

These matters have been generally dealt with as being urgent since the children on whose behalf the jurisdictions of the Courts have been invoked are denied schooling and require relief without delay.

With the intervention of Court administrative relief has been granted in many of the cases by admitting the children to the particular school concerned or to an alternative school.

The allegations have related to unequal, arbitrary and capricious application of the relevant circulars resulting in less suited children securing admission to the detriment of the children who have been thereby compelled to invoke the jurisdiction of courts.

Quite apart from the thrust and parry of allegations and counter allegations, the underlying cause of this pervasive malady is the ever increasing demand for admission to leading schools in Colombo and other principal cities, administratively designated as National Schools within the purview of the Central Government as distinct from other schools within the purview of Provincial Councils and, the limited and number of places in such schools.

Plainly, it is a situation of demand out stripping by far the availability of places. The response of the authorities to this classic situation of a gross mismatch in supply and demand has been to narrow down, through an intricate system of criteria contained in circulars (that would be examined hereafter), the area that would feed a particular school described in the Sinhala Circular as ‘Pasele Poshitha Pradeshaya’.

The ‘feeder area’ of the leading schools have become preposterously narrow to be as low as 600 metres for D. S. Senanayake Vidyalaya located between Bullers Road and Gregory’s Road in Colombo 7 and 1,000 metres for Ananda College abutting Maradana Road, Colombo 10. It is probable that none of the children admitted live within this narrow official ‘feeder area’.

If the officials and particularly the principals of the schools stay outside the gates at commencement and close of school hours, they would see that the ‘feeder’ buses and vans, that transport schoolchildren are from as far out as Gampaha, Nittambuwa, Negombo and Kalutara. The upshot is the nightmare of school time traffic which disrupt all other activity in the city.”

Supreme Court
Sarath N. Silva CJ
N. E. Dissanayake J.
A. M. Somawansa J.
Decided on 29 March, 2007.

Apprentice’s note book

I am Dilani Kumari Katugaha who passed the final examination at the Sri Lanka Law College a few weeks ago. I receives 63 marks and I was told that I am entitled to a 1st Class Honours Pass. I was requested to find a Senior Attorney-at-Law of not less than 10 years standing at the Bar and obtain a letter and start my apprentice period.

The problem is that as I am from a remote village and I do not know any Senior Lawyer in Colombo. I know the lecturers who taught me at Law College but they have selected their full quota of apprentices.

They say their Chambers are full. Besides the seniors meet their clients in the evenings and apprentices have to be present during consultations which go until night. As I am boarded at Rukmale, off Kottawa, I am afraid to travel by bus alone at night.

When I explain this personal difficulty the Seniors ask me to approach some other lawyers. Still I have no Senior to apprentice under. The situation has become compounded by the fact that I cannot speak any English except a few words.

Colombo Lawyers who do corporate work need spoken and drafting skills in English in their Chambers because of the nature of their work. As I come from a rural Maha Vidyalaya, my English is very poor. When I open my mouth English speakers laugh. Therefore, I don’t even try to speak a word in English.

My English deficiency is not the fault of any one except my family’s poverty. My father who is a paddy cultivator could not afford to send me to a big school where English is properly taught.

I passed my Ordinary Level English with a ‘distinction’ but I never developed the courage to speak in english. For that matter there was no one in my village including my English teacher, with whom I could start a conversation in English.

Sometimes I regret that I selected to do law and higher studies because I could have worked in the nearest garment factory and even helped my parents to educate my two younger brothers.

I have decided to approach some Sinhala only lawyers to apprentice and then look for job as a Legal Officer in a Government institution where English is not essential. Sometimes, I blame my father who compelled me to study Law because he was severely cross-examined by the lawyer from the other side in a land case.

He wanted to get equal by asking me three four times a day “Duwa kohoma hari Neethiknayek Venna”. That was his dream.

Dilani Kumari