Commissions, Committees and Select Committees of Inquiry

Sri Lanka, whether in sports, administrative abuse, constitutional amendments or the national question, the ready remedy that every one propose is to set up a Commission or a Committee to study, report and make recommendations.

As a democratic governance process, this method of problem solving or postponement thereof appears reasonable. Participatory consensus reached outside the scope of competitive party politics is a hallmark of democracy and good governance.

However, there are few limitations. Firstly, appointment of Committees of Inquiry should not be abused as a mere tactical measure to postpone a solution to a public problem. They should not be a Machiavellian tactic to hoodwink the public and postpone agitation.

Secondly, such stratagem should be genuine and the members appointed should have the independence, competence and should in general be acceptable to the society. The credibility of the members should be implacable. Retirement from judiciary, public service or from a University does not ipso facto guarantee credibility or impartiality of the Commission or Committee process.

In point of fact, appointment of retired judicial officers to Commissions is considered by purists a step towards eroding the independence and integrity of the judiciary. The life expectancy of retired judges has increased by 10 to 15 years since the 1970’s along with aging of population at large.

Consequently, a retired judge even though receives his full salary as pension would likely to remain active by accepting appointment to Commissions after retirement. This situation opens the possibility for socio-legal policy of judges more to be accommodative of the state position when the liberties of the individual citizens are affected by state action.

This hypothesis gets credence from the practice that not all retired judges get recommended to the Executive Head or those retired judges who were ignored by a previous Government gets appointed by the successive Government. The retiring judges should not be lured by prospects of appointments to lucrative positions just after retirement in order to fortify the independence of the judiciary.

Thirdly, the Reports of the Commission should be either implemented or rejected by the appointing authority. After spending public money the reports should not be allowed to gather dust without any action either positive or negative.

To give an example Presidential Commission on Tsunami Disaster which contained some excellent recommendations has found its way to oblivion. The reports should be at least released for public debate.

Fourthly, the power vested in the Commissions of Inquiry and select Committees of Parliament to summon whoever they want to appear before them should be judiciary used. Power should not be used to harass citizen or citizen groups. Abuse of power by Commissions and Committees in selectively summoning citizens should be discouraged by the judiciary

S. S. Wijeratne

Questions and answers

Can I withdraw interest money from deposit made in respect of my two children?

Question: My husband died due to a fatal accident and I obtained a sum of Rs. 1,000,000 from the insurance company.

After spending part of the money for completion of my house, I deposited the balance money in the National Savings Bank in the name of my two children. I am unemployed and receive no income. Therefore can I withdraw the money which I deposited in the NSB five years ago in order to maintain my two children? My children are still minors.

H. W. Sujatha Menike,

Ginigathena.

Answer: In order to withdraw the money deposited by you in respect of your two children, who are still minors, you have to file a civil guardian case before the District Court situated in your area and prove that you have no income to maintain your children’s education and their necessary expenses.

In that event you can get an order from the court to withdraw the interest on the money deposited by you in the name of your two children. If you need further advice, you can visit our Legal Aid Centre situated in Nuwara Eliya which is closer to your home town. Our Legal Officers will not hesitate to give you the necessary advice and guidance in the matter.

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Is seller of property entitled to a copy of deed of sale?

Question: In December 2006, I sold my house and property. Since the purchaser had to obtain a loan from the bank, the sale transaction and legal documentation was done at the bank and executed by the Legal Officer of the bank.

While I have persisted with my request to the Bank for a copy of the sale deed and it is over six months since the execution of the deed, the bank has maintained that it has not received the deed after registration. However, while I contacted the bank a few days ago, I was told that I was not entitled to a copy of the deed.

I wish to inquire whether the seller of a product is entitled to a copy of the deed of sale and whether the authority executing the deed is obliged to give a copy after registration. Please advise.

Joseph Fernando,
Koswatte.

Answer: You have not mentioned on what grounds the bank is refusing to give you a copy of the deed of sale. Since you are the previous owner of the land and with the documents available with you, you can trace the prior registration of your deed and apply for a certified copy of the said deed from the Land Registry where the land is situated without requesting the bank for the same.

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How to get back land illegally occupied by unknown persons

Question: I am writing this letter solely to clarify a doubt regarding a land which is 25 miles away from Badulla town occupied by unknown people illegally. Presently land occupied has gone to jungle. I want to get back this land and do tea plantations. This land was in possession by my father. I have all deeds concerning this land.

Kindly let me know how to get back this land legally through your column.

D. W. M. Goonetilleke,
Dehiwala.

Answer: According to your question it is stated that some unknown people are occupying the land belonging to you situated 25 miles away from the Badulla town. It is advisable for you to make a complaint to the nearest police station where the land is situated regarding such occupation.

Thereafter, you have to send notice to quit to the trespassers and file action against them on the ground of unauthorised occupation. However, you have to file action before the expiry of 10 years from the date of dispute. If not, the trespassers can claim right of prescription to your land under Prescription Ordinance.

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Can husband sell wife’s property situated in Jaffna?

Question: I am a Tamil boy living in Jaffna. I got married to a girl from Jaffna and I am now living with her in Jaffna. She was given a piece of land in Jaffna as a dowry. Can I sell this land without her consent. Kindly let me know.

P. Illangu,
Jaffna.

Answer: If you are living in Jaffna and your land is situated in Jaffna, you are governed by the Law of Tesawalamai. Under this law you cannot sell your wife’s land with or without her consent.

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Re. application forms from Debt Conciliation Board

Question: Please let me know as to how I could get an application form from the Debt Conciliation Board? Very urgent please.

Anoja Peiris,
Wellampitiya.

Answer: Printed application forms together with all necessary information are supplied free of charge by the said Department. These applications can be obtained from the Secretary of the Department of the Debt Conciliation Board, No. 428/11, Denzil Kobbekaduwa Mawatha, Battaramulla either by post or by personally calling at the office. Tel. 2865477, 2865488.

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Can my daughter be ejected from my household?

Question: I am a retired school teacher and a mother of three daughters. My age is 80 years. Widow. The second daughter and the third daughter are married and living away from my household.

My eldest daughter is not married. She has now passed her marriageable age. The eldest and the second are English teachers. I never neglected my children. Even after I became a widow I looked after them very well. I am a very religious person.

My eldest daughter was educated at one of the leading girls’ schools in Galle. She is a trained graduate teacher in English. She is not at all well disposed towards me. She harasses me. She assaults me. She despises me. In her conversation with others - say my relatives, my friends and my well-wishers she speaks ill of me.

Her general behaviour towards me is detestable and abominable. Although we live in the same household we are not on talking terms. Sometimes, she deprives me of telephone calls meant for me. She uses an extension from the main line.

Since her behaviour is deteriorating day by day, it has now become almost intolerable, I have been reduced to the necessity of seeking legal advice to have her ejected from my household. Kindly advise me.

Ms Rukantha,
Galle.

Answer: Under the Domestic Violence Act No. 34 of 2005, you can seek relief under Section 2 (1) of the said Act Section 2 (1) states -

“A person, in respect of whom an act of domestic violence has been, is, or is likely to be, committed (hereinafter referred to as ‘an aggrieved person’) may make an application to the Magistrate’s Court for a Protection Order, for the prevention of such act of domestic violence.”

You can make an application through the police officer on your behalf, by yourself or through an Attorney-at-Law.

Further you can seek relief under the Elders’ Law No. 9 of 2000. Under this Act you can settle this matter my mediation through the National Secretariat For Elders or you can get maintenance from your children.

If you need further assistance you can visit our Legal Aid Centre which is closer to your area or you can contact our Head Office, Tel. No. 2433618. The Legal Aid Commission has set up Legal Aid Centres islandwide.

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Procedure to adopt child

Question: My daughter is a doctor in the medical profession. She is married but has no children. She is now very anxious to adopt a child, preferably a girl who is an orphan.

Please let me know from which institution she could get this child and what legal procedure she has to follow.

S. Wijewardena
Colombo 6

Answer: According to the Adoption Ordinance, a married couple has a right to adopt a child under the Rules and Regulations of the said Ordinance. Basic qualifications are -

(a) the adoption parents should be married

(b) adopted parents should be over 25 years of age.

(c) they should have the ability to look after the child.

(d) the age gap between the adopted and the child should be 21 years of age... etc.

If any parents are willing to give their child for adoption, you have a right to make an application before the District Court situated in your area. Otherwise if the child is living in an orphanage, the approval letter of your request is essential. Sometimes the parents’ consent is necessary.

If you fulfil the above mentioned requirements, you can file an adoption case before the District Court where you reside or the orphanage is situated. In that case you have to cite the Probation Officer and the Parents or the Guardian of the orphan as Respondents.

Thereafter the Court will notice the Respondents specially may call for the report from the Probation Officer. According to the Probation Officer’s report, if you have fulfilled the required qualification you have the right to adopt a child. If you need further assistance you can contact us on Tel No. 2433618.

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International Day against Drug Abuse and Illicit Trafficking

Question: I am an A Level student and some of my friends have sent essays to the Legal Aid Commission on the topic “Law & Eradication of Harmful Drugs.” Could you please let me know through your Legal Aid Column the importance of International Day Against Drug Abuse and Illicit Trafficking which fell on June 26.

Razeen Akbar
Malabe.

Answer: We are very happy that your friends have taken part in our essay competition. We set out below an extract from the UN Officer on Drugs and Crime on International Day against Drug Abuse and Illicit Trafficking.

By resolution 42/112 of 7 December 1987, the General Assembly decided to observe 26 June as the International Day against Drug Abuse and Illicit Trafficking as an expression of its determination to strengthen action and cooperation to achieve the goal of an international society free of drug abuse.

This resolution recommended further action with regard to the report and conclusions of the 1987 International Conference on Drug Abuse and Illicit Trafficking.

The slogan of the UNODC anti-drugs campaign to be launched on 26 June, the International Day Against Drug Abuse and Illicit Trafficking, is “Do drugs control your life? Your life. Your community. No place for drugs.”

The slogan will be used for three years and focus on different aspects of drug control: drug abuse in 2007, drug cultivation and production in 2008, and illicit drug trafficking in 2009.

With this campaign, UNODC aims to raise awareness of the major problem that illicit drugs represent to society. No individual, family or community is safe where illicit drugs take control. Drugs may control the body and mind of individual consumers, the drug crop and drug cartels may control farmers, illicit trafficking and crime may control communities.

The campaign’s goal is to inspire people and mobilize support for drug control, The proposed overarching campaign and the generic slogan are flexible. For example, variations on the slogan could be used to suit different contexts.

Types of drugs under international control

UNODC and its campaign only focus on drugs subject to control, as specified in the three multilateral drug treaties that form the backbone of the international drug control system. These illicit drugs include amphetamine-type stimulants (ATS), coca/cocaine, cannabis, hallucinogens, opiates, and sedative hypnotics.

Nearly 200 million people are using these drugs worldwide. Cannabis - marihuana, hashish, THC - leads by far with 162 million users. ATS - amphetamine, methamphetamine, ecstasy, methacathinone - follow with 35 million users.

Globally, an estimated 16 million people use opiates - opium, morphine, heroin, synthetic opiates - and some 13 million people use cocaine.

Cocaine use in Western Europe is of particular concern, where consumption is reaching alarming levels. Cannabis, which is grown and used all over the world, is changing.

The drug’s potency has increased in recent years, and there are indications that cannabis-related mental health risks may have been underestimated. Opiate use levels along the trafficking routes originating from Afghanistan, the world’s top opium producer, are the highest anywhere. ATS use in Asia is also a problem.

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Letter of termination

Question: I wish to know whether the services of a permanent employee could be terminated after issuing a letter on account of “service and doubtful unfair practices to the Company.”

If this is not in order, what course of action should be taken by the employee. Letter of termination enclosed herewith.

R. Arjuna,
Urapola

Answer: We have perused the letter of termination. The letter specifically states that your services are terminated with effect from 10.06.07 till the end of the inquiry in respect of doubtful unfair practices. There is no provision in law to terminate the services until the conclusion of the inquiry. In our view what the employer had in view would have been suspension of services till the conclusion of the inquiry.

Since the letter says that your services have been terminated you have a right to make an application to the Labour Tribunal for relief or lodge a complaint with the Commissioner of Labour, Termination of Employment Unit.

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How to recover money on returned cheques

Question: I am a businessman. One of my friends gave me a dated Cheque. On the due date I deposited the said Cheque to my Bank Account. The Cheque was returned due to insufficient funds. On the face of the Cheque there is an endorsement to say “refer to drawer.” What shall I do to recover my money?

Tushan Fernando,
Marawila.

Answer: According to your question, you have two causes of action - namely criminal and civil.

However, before proceeding to file action, you have to inform the drawer by letter of demand that his Cheque has been returned by the Bank due to insufficient funds and request him to settle the amount due to you within 14 days of the receipt of the said letter. If he fails to settle the same, then you can proceed to file a civil action against him in the District Court by summary procedure for the recovery of the money due to you.

Furthermore, you can make a complaint to the police regarding the matter and file a criminal action in the Magistrate’s Court on the ground of cheating.

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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.

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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 organized criminal gangs have invented new method of skim.

National Essay Competition on Law and Eradication of Harmful Drugs

The Legal Aid Commission of Sri Lanka and the Ministry of Education will be conducting a National Essay Competition for students in Sri Lanka.

The details of the competition are as follows:

* Sponsor: Sri Lanka Telecom

* Medium: Sinhala, Tamil and English

* For whom: Students in the G.C.E. Advanced Level classes

* Number of words: 2000-2500

* Closing Date for entries: 15th September 2007

* Prizes:

1st Prize Rs. 25,000.00

2nd Prize Rs. 20,000.00

3rd Prize Rs. 15,000.00

* Rs. 5000.00 consolation prizes for each medium will be awarded to the next 10 best essays. In addition, a merit certificate will be awarded to each winner.

* The essay should be certified by the principal of the school of the student.

* The name and the address of the student and the address of the school should be written in English. Please note that the students who have any connection with the Legal Aid Commission of Sri Lanka are not eligible to take part in this competition.

Recommended reading: Tobacco and Alcohol Authority Act No. 27 of 2007 Lankadeepa “Neethiye Sarana” - Every other Tuesday

Daily News - Legal Aid Page on Friday

Thinakaran - Legal Aid Page on Wednesday

All the essays should be directed to: The Chairman, Legal Aid Commission, 129, High Court Complex, Colombo 12.

Email:school-programme@yahoo.com.

Quotes from judgements

Judicial Restraint

“Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint and humility of function should be constant theme of our judges.

This quality of decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect, that is respected by the judiciary.

Respect to those who come before the court as well as to other coordinate branches of the State, the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process”.

A. M. Mathur v. Pramod Kumar Gupta, 1990 (2) SCC 533,538-39.