Introduction - 'Wigs off to judges in Britain'

Last week Reuters reported that the centuries old custom of judges and lawyers adorning themselves with wigs and different coloured cloaks has been discontinued at least in the civil courts in Britain.

The reasons given for abandoning this heavy judicial paraphernalia is that they were outmoded and they are expensive, about 1000 pounds for a good quality white horse hair wig. In the United Kingdom due to seasonal changes different cloaks have to be worn for different seasons.

Sri Lankan full judicial garb at least in the Superior Courts continue to include wigs and ermine silk cloaks; even though now used in only ceremonial sittings. The President's Counsel also looks forward to wearing wigs when they get silks like the Queen's Counsel in England. It is argued that the Judges should look dignified and different to earn the respect of the ordinary denizens in courts.

Even though Sri Lanka attained independence nearly 60 years ago, the Sri Lankan elite classes have failed to move away from the British traditions even after the colonial mother had discarded some of her sartorial idiosyncrasies. This habit of continuing British legal traditions in Sri Lanka is not confined to innocuous sartorial fashions. Even some of the legal practices discarded in UK as outmoded are still guarded with zeal by legal conservatives in Sri Lanka.

Champerty or entering into an agreement with a litigant to charge a fee on a contingency basis has been permitted for some time in England. This was to facilitate poor litigants specially in cases of damages to obtain the best legal services without making payment up front but to predicate the settlement of fees on a ratio basis upon the success of the outcome.

In Sri Lanka, the Supreme Court rules still prohibit Champerty. Consequently, hundreds of poor accident victims give up their due claims due to the financial difficulties to sustain protracted litigation and summon very expensive expert witnesses.

The final beneficiary from such unequal litigation is the Insurance Companies. It was in this context that the Chairman of the Advisory Council on Legal Aid, Chief Justice, Sarath N. Silva, PC has granted limited exceptions to the rule in legal aid cases.

A second instance where Sri Lanka persists in continuing a British tradition which Britain herself has abandoned is the tradition of prosecutors of Attorney General's Department avoiding interacting with victims and witnesses. This puritan tradition to avoid allegations of coaching witnesses has worked against the rights of vulnerable victims and witnesses.

Given the undue delay associated with our criminal justice system the provisions should be available for victims to refresh their mind when giving evidence and recalling nightmarish incidents such as incest and rape. If defence has no confidence in the integrity of their learned friends of the official Bar, the court could arrange a conversation between the prosecutor and the victim in the presence of the Judge.

In these circumstances, it is no wonder that conviction rate of criminals in Sri Lanka has got struck at four per cent for the past few years. It is also the reason why criminal justice system has delayed victims and witness' protection laws even after 22 years of unanimous adoption of the UN Declaration on Victims of Crime and Abuse of Power in 1985.

- S.S. Wijeratne

Questions and answers

Can I ask maintenance for my illegitimate child?

Question: I am a mother of an illegitimate child. I am now 56 years old and retired.

My child is 18 years old. My question is with regard to maintenance of my child. Can I apply for maintenance from his father?

Mrs. M. Pathirana, Gampola.

Answer: If the child is below 25 years and he is unable to maintain himself, can apply for maintenance before the Magistrate's Court under the Maintenance Act No. 37 of 1999.

However, as he an illegitimate child you have to prove the paternity by strong evidence (through a DNA tests) so that the Magistrate could be satisfied regarding the paternity of the child.

How to apply for Sri Lankan Visa

Question: I am Philippine girl who got married to a Sri Lankan. Our baby was born in Sri Lanka. I have got a six months visa to stay in Sri Lanka. I wish to renew my visa. Please let me know how it should be done. Also let me know whether it is necessary to get a via for my child.

Meraya, Negombo

Answer: Since the child's father is a Sri Lankan and the child is born in Sri Lanka there is no necessity to apply for Sri Lankan visa. The child is a Sri Lankan. In your case, you already possess a Sri Lankan visa.

Therefore, you can renew your visa for another 1 1/2 years without any difficulty. You have to visit the Visa Section, Immigration and Emigration Department at Punchi Borella. The following documents have to be submitted when you apply for visa.

1. Existing passport

2. Visa pages

3. Letter from husband

4. Marriage Certificate

5. Photographs (Passport size)

6. Duly filled application issued by the Department

Finding suitable protective place for young disabled girl

Question: Will you be able to provide me some information/assistance for the following:

I have an old aide from Madurankuliya who is helping me with my day to day work and she has two daughters aged 27 and 23 may be. Her husband has died long time ago.

The youngest of the two is not 100% normal but she is able to do her own work like dressing up, combing the hair and can mange to do garden work etc. She will do any work, but under supervision.

The eldest daughter is refusing to settle down caring her disabled sister whom she thinks, in the absence of the mother one fine day, she will not be able to look after the disabled sister if she gets married and settles down. Mother too had gone to many places (homes) in the past in search of a caring place to keep this child, which had gone in vain.

Mother came to me about 4 months back and always thinks/speaks of her children. I too feel bad and pity for this mother as I too have two daughters of the same age. Hence, I need to help the mother in finding a suitable protective place for this young disabled girl. I am in Ja-Ela. Could you please help me in this matter.

M. Liyanage, Sent by email

Answer: The Legal Aid Commission has established various Developmental Legal Aid desks concentrating of different sectors of society that needs special care and protection.

The Disabled Persons Rights Protection Unit established by the Legal Aid Commission is one such Desks whose objective is to provide free legal advice regarding maintenance, accident claims, loss of property and fundamental rights of destitute disabled persons and also to create an awareness on the subject among community and school children on the rights of disabled persons.

Regarding your problem, you could call over at our Head Office which is situated at No. 129, High Court Complex, Hulftsdrop Street, Colombo 12 and meet Ms. Kalani Medagoda, Attorney-at-Law, who is in charge of the said Desk. Tel. No. 011-2433618.

What do our mean by "Public place" under Tobacco and Alcohol Act No. 27 of 2006

Question: What are the enclosed public places where smoking is prohibited or allowed as per the National Authority on Tobacco and Alcohol Act No. 27 of 2006.

P. David, Colombo 8.

Answer: Under Section 39(5) 'public place' means any place to which the public have access, weather as of right or otherwise.

"Enclosed public place" includes any Government department, statutory authority or board or public institution, office premises, bank, court house, auditorium, sports complex, hospital, clinic, dispensary, laboratory, school, university or other educational institution, library, museum, places of worship, hotel, guest house, lodge, hostel, restaurant, club, internet cafe, cinema, theatre, supermarket, airport, a waiting room in a railway station or bus terminal, any public conveyance, building, any built in area and lift.

What is the legal remedy available against my boss?

Question: I am a 26-year-old young woman. I presently work as a clerk at a Government Department. I wish to get a transfer to another unit in the same Department.

When I informed my boss about my decision, he informed me that he was willing to approve my transfer on condition that I had a sexual relationship with him. I feel very embarrassed and worried. Please let me know of the legal remedies available against my boss.

Ms. Jean Solomonxz, Boralesgamuwa.

Answer: If you wish to take to legal actin, you should first lodge a complaint with the police. Sexual harassment is a criminal offence. It has been defined under Section 345 of the Penal Code Act No. 22 of 1995 as - "Whoever by assault or use of criminal force sexually harasses another person, or by the use of word or actions, causes sexual annoyance or harassment to such other person commits the offence or sexual harassment".

According to the Act, a person found guilty of such harassment will be punished with. l A fine or l Imprisonment and fine l And may also be ordered to pay compensation to the victim.

In addition there is another alternative remedy. As you are a Government servant, in addition to aforementioned legal action that is available to victims of sexual harassment, you also can take action under the Bribery Act No. 11 of 1954 (as amended). Soliciting or accepting sexual favours on condition the employee is given a promotion, transfer or any official benefit tantamount to soliciting or accepting a bribe.

Thus, it is important that you should complain to the Commission to Investigate Allegations of Bribery or Corruption. This should be made confidentially. (Decided case Kathupdeen Vs State (1998) 3 SLLR 107).

Is sale of items below marked prices an offence?

Question: Please be good enough to reply the answers to the following questions through the Legal Aid Page -

1. Is it an offence to sell any item below the marked price?

2. Can I be fined for selling below the marked price?

3. Can I appeal against the fine imposed?

D. A. Charles, Kotagala

Answer: There is a difference between the market price and the marked price. The market price means any selling price in the market. The marked price means the price marked on the product. Selling at a higher price than the marked price is an offence.

It is an offence under the Consumer Affairs Authority Act. No. 09 of 2003. According to the said Act, selling any items below the marked price is not an offence.

If you need any further information in this regard, you may kindly contact the Consumer Protection Unit, Legal Aid Commission, 129, High Court Complex, Hulftsdorp Street, Colombo 12 or the Consumer Affairs Authority, 1st and 2nd Floor, CWE Secretariat Building, P.O. Box 1581, 27, Vauxhall Street, Colombo 2. Tel. No. 2445897, 2393577, 2393495.

Chamber of Commerce and Industry - NGO or CBO?

Question: We come across several reports, articles and news items appearing in local press relating to the operation of Non-Governmental Organisations (NGOs) and Community Based Organisations (CBOs) that received national and international aid.

In fact, a Parliamentary Select Committee is investigating the activities of NGO/CBO. But there is another category of organisation known as Federation of Chamber of Commerce and Industry, National Chamber (Commerce/Industry), Trade Association, etc.

These Organisations too undertake foreign funded projects running to Millions/Billions.

Can you please advise me as to whether the Chambers referred to above, can be grouped or identified either under NGO or CBO.

I would like to have your legal opinion on this please.

K. Senthivel, (Sent by email)

Answer: The groups referred by you are not Government Organisations. They come under the category of Non-Governmental Organisations.

How to include adopted child in parents' passport?

Question: We are both doctors. We adopted a baby girl through a court order. She is one year old now. Very often we travel to foreign countries. Please let us know as to how we could include our adopted child to our Passport.

Mrs. B. de Silva, Kurunegala

Answer: The following documents must be presented in order to have a child's name and photograph included in the parents' passport along with all other relevant documents:-

(i) Form IM 35 C (Annexure 4)

(ii) Two coloured, clear and recently taken photographs of a good quality of each child (size - 2.5 cm x 3 cm)

(iii) Birth Certificate with a photocopy of each child who is to be included.

(iv) Birth Certificate issued by the particular Overseas Mission and the birth registration certificate (Citizenship Certificate) issued by the Department of Immigration under the Section 5 (2) of Citizenship Act should be submitted if the child has been born in a foreign country. If the Citizenship Certificate is not available, a copy of the receipt of payment for Citizenship Certificate is also acceptable.

(v) The passport of the spouse with photocopies of the data page and the page assigned for inclusion of names and photographs of children.

(vi) The National Identity Card of the spouse with a photocopy, if the spouse has not obtained a passport.

(vii) The letter of consent from the spouse, permitting the applicant to include his/her children's names in the passport.

(viii) Death Certificates of the spouse if the spouse has died.

(ix) Divorce certificate if the applicant is divorced.

(x) If the mother or father has abandoned the child, a certified copy of the police complaint and a letter to that effect from the Social Service officer countersigned by Divisional Secretary.

The following documents are compulsory for adopted children to obtain a separate passport or to get her/his name added to a parent's passport with all other relevant documents as mentioned above.

(i) The Court Order in respect of adoption of the child.

(ii) A letter from the Probation and Child Care Commission.

Is it possible to hold previous employer responsible for default of EPF payment?

Question: I was employed at an advertising agency on an open-ended contact basis with a consolidated salary of Rs. 20,000 per month. I had quit employment for ten years prior to that to do my own consultation work, hence, when I returned to employment I had lost track of new rules pertaining to an employees' entitlements - and an employer's obligations.

I quit that post for alternate employment. I now understand that I was entitled to EPF membership, contributions from the employer and deductions from my salary towards the fund. I was however not informed of these rights and obligations regarding EPF benefits, by that employer.

My current employer has not resorted to any such deception and though I am 63 years old, has had deductions from my emoluments and remitted them along with his contributions to the EPF dept. of the Central Bank.

Is it possible for me to hold my precious employer responsible for being in default, legally, is not facilitating EPF entitlements to me while I was employed there - and is it possible for me to claim the monies he should have contributed to a fund in my name at the EPF Department?

It will work out to only around Rs. 20,000 plus interest - but as I require half that amount monthly for treatment of a serious heart disease, it will be a considerable relief to me financially. How do I go about making my claim? It is now almost ten months since I left employment under that employer. Your early response would be most deeply appreciated.

Philip, Wadduwa.

Answer: There is no time limit to claim EPF. You are therefore advised to make a complaint to the Department of Labour giving the date of employment, name of the employer and the date you ceased to be an employee.

The Commissioner of Labour will therefore hold an inquiry and the Employer will be called up to deposit 20% of your salary and 50% surcharge as the default has exceeded over one year.