Introduction-Legal Aid is a human right

The Universal Declaration of Human Rights (UDHR), the Principal Compendium of basic rights of the humanity adopted by the United Nations in 1948 has during the past six decades changes the world for the better.

Many countries who were under colonial oppression of some western developed countries attained independence and was able to incorporate provisions of UDHR in their Constitutions in different degrees by way of Bills of Rights. Of the 193 countries who are members of the United Nations presently vast majority has included Human Rights in their basic laws.

A respected international movement protecting and promoting human rights has enveloped the globe. After religious traditions which incorporated human tights, the principles like the Right to Life has helped the Globalisation of Human Rights.

Of the 30 Articles of UDHR, the LAC's mission is focused on Article 8 which reads: "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law" and Article 10 which reads: "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him".

Sri Lanka was as usual late in incorporating any Human Rights provisions into her Constitution. The Soulbury Constitution of 1948 gifted by the Colonial British did not incorporate any Human Rights provisions.

It was only in the 1972 Constitution that fundamental rights chapter was included by late Dr. Colvin R de Silva. But the Constitutional provision was incomplete in that there was no provision to seek justice when fundamental rights were violated as provided in Article 8 of the UDHR.

The present Constitution enacted in 1978 has come under serious criticism and every Government has promised to change it. But 1978 Constitution is a land mark legislation as far as legal enforceable fundamental rights are concerned. Chapter III of the 1978 Constitution incorporate few basic human rights as Fundamental Rights (FR) and by Article 126, provision is made for victims of FR violations to seek redress for rights violations from no less a court than the Supreme Court.

Fundamental Rights provisions in the 1978 Constitution can be vastly improved. The unsuccessful several constitutional drafts since 1997, have suggested improvements. All important Right to Life which created climate of equality in India needs incorporation in a new Constitution.

Our Constitution in Article 12 pompously declared that all persons equal before the law and are entitled to the equal protection of the law.

This provision without effective programme for equal access to courts of law is meaningless. Sri Lanka, reportedly has nearly 47% of the population receiving less than Rs. 6,000 a month and receiving Samurdhi benefits to sustain their lives.

They cannot afford expensive litigation to have access to justice. The State has allocated billions of rupees to provide free health and education and Samurdhi. The foresight of the great Statesmen in the 1940s led to this momentous steps.

But no Government since 1947 has provided sufficient funds to establish a comprehensive access to justice programme in Sri Lanka. The LAC which has established 36 Legal aid Centers islandwide needs to establish 25 additional centers to complete its mission.

If there is a single court house where poor people have to seek justice without a legal aid center, the mission of the LAC is incomplete and there is a denial of a basic human right.

S.S. Wijeratne

Quotes from judgements

Advocates-on-Record and another Vs Union of India

Judges and Judicial Staff

"One should not lose sight of the important fact that appointment to judicial office cannot be equated with the appointment to the executive or other services. The judicial service is not a service in the sense of 'employment'. The judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State.

They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each of them represents the authority of the State.

However, those who exercise the State-power are ministers, the legislators and the judges, and not the members of their staff who implement or assist in implementing their decisions.

The council of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, legislators are different from the legislative staff.

So also the judges from the judicial staff. The parity is between the political executive, the legislators and the Judges and not between the Judges and the administrative executive. The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or members of other services".

Ratnavel Pandian J., AIR 1994 SC 268

Questions and Answers

Requirements of a valid deed

Question: I have recently purchased a block of land in the Kaduwela District. I would like to know the requirements of a valid deed.

- V. Fernando, Ratmalana.

Answer: The requirements of a valid deed are:

1. It should be written or printed on durable paper.
2. The executant should be a major (over 18 years) and be competent to execute a deed.
3. The nature of the transaction should be clearly stated and the property should be defined in deed. A deed can be written for the benefit of an infant too.
4. The executant or his Attorney should always sign the deed and the Notary should certify by signing and affixing his seal.
5. There should be at least two witnesses and both of them should sign in letters. (They should not affix their thumb impressions).

Where the executant is a legal person one or two Authorised Officers should sign as executants and affix the common seal of such establishment. Every deed should be executed and certified by the parties to the deed, witnesses and the Notary. The draft of the deed which is the Protocol should be preserved by the Notary. The original of a deed should be registered at the Land Registry and handed over to the new owner.

According to the nature of the transaction the handing over of the original copy of the deed differs from one transaction to other. Where the deed is a Deed of Transfer, a Deed of Partition and in any Agreement, as there are two or more executants one original copy should be registered and the particulars which are stated in the original deed, should be written in the copies by the Notary before handing them over to the other executants.

Benefits of signing a service Agreement and registering under the SLBFE?

Question: What are the benefits I have if I register myself under the Sri Lanka Bureau of Foreign Employment (SLBFE) and signing a Service Agreement with the Agent before I proceed to go abroad?

- M. Joesph, Mutwal.

Answer: If you have registered yourself under the SLBFE and signed a Service Agreement, it seems that your migration is safe. However after you go abroad if your Service Agreement is violated by the foreign agent or foreign employer, as soon as you come to Sri Lanka, you can also file a money recovery case in the District Court. You can also make a written complaint to the SLBFE.

Am I entitled to claim any overtime?

Question: I am employed as an Executive in a leading Mercantile Firm. I have been issued with a contract of employment. In my contract it stated that I will be required to work after normal working hours due to exigencies of work but will not be entitled to claim any overtime for the reason I am paid a higher salary.

Please let me know whether I could claim overtime inspite of it being stated in my contract that I am not entitled to claim any overtime?

- A.S. Rajah, Mt. Lavinia.

Answer: Since you are working in a Mercantile Firm, the Shop and Office Employees Act do not distinguish between Executive, Clerk or Peon.

You are therefore entitled to claim overtime for working extra hours. We would however wish to state that most employees employed as Executives do not claim overtime to maintain good relationship with their Employer.

No payment or leave given by employer for working on Statutory holiday

Question: I am employed as a clerk in a Legal Firm. There are instances I have worked on a statutory holiday but my Employer has never given any leave or made any payments for working on a statutory holiday. What is the Law that is applicable?

- Inoka, Kottawa.

Answer: You are covered under the Shop and Office Employees Act. The law is, if an Employer employs a Shop and Office employee on a statutory holiday, he is required to grant a paid holiday in lieu prior to the 31st of December that year or pay an extra day's wage.

In terms of the Act the approval of the Commissioner of Labour is required to work on a statutory holiday.

Annual leave

Question: Several Mercantile Firms have earned annual leave of 30 days per annum and insist on utilizing at least 14 days with provision for encashment of balance unutilized days upto a maximum of 16 days.

If an employee wishes to accumulate, for availment prior to retirement, maximum of 90 days is allowed to carry forward. In the event of an employee is already having 90 days accumulated leave and could not take the mandatory 14 days leave (e.g. took only 07 days).

Can the employer encash only the 16 days and write off the unutilized 07 days stating that maximum 90 days is allowed to be carried forward.

- S. Udayakumar, Sent by Email.

Answer: Your question is not clear. Law permits only 14 days of annual leave and that leave cannot be accumulated or carried forward unless they are covered by any Collective Agreements or it is provided in their contract of employment.

Please therefore provide us with the relevant documents to answer your question.

Could I continue to be a member of the CBEU?

Question: I joined as a clerk in a private bank and continued in such capacity for nearly nine years. After passing the Banking Exams I have been promoted as a Manager of a Branch.

While being employed as a clerk I was a member of the Ceylon Bank Employees Union. After my promotion my appointment letter states that I should not be a member of any trade union. I would however wish to continue as a Member of the Union. Please let me know whether I could continue to be a member of the Ceylon Bank Employees Union?

- P. Herath, Mawathagama.

Answer: Yes. You could continue with the same Union. Nothing to prevent you from doing so. There is a decision in this connection by the Appellate Courts.

Advance for ADSL

Question: We were at Soysapura, Moratuwa till March 2007. We had an ADSL connection there at home. We paid 2,300 advance apart from monthly bill. Then in March end, we moved to Wellawatte. When we want the connection here, the Telecom asked us to pay the advance 2,300 again. Should we pay it again?

Expecting your reply.

- S. Senthilpushpa, Sent by Email.

Answer: Yes. You have to pay registration fee for ADSL if you are going to a new location.

Bribery

Question: I want to know whether there is punishment for the person who gives a bribe to a Government Servant. Your early answer is appreciated.

- S. Senthi, Sent by Email

Answer: Yes, the offer of a bribe is a criminal offence under the Bribery Act. But it is important the person to whom the bribe is offered should complain immediately to the Commission to Investigate Against Bribery or Corruption (CIABOC) of the offer made.

Sometimes it happens, persons "give" bribes on solicitations made by public servants. In such circumstances the "offerer" should complaint to the CIABOC (with corroboration evidence). He would thereafter be the complainant against such public servant.

New Companies Act

Question: I came to understand that the new Companies Act came into effect on 03rd May 2007. Please let me know what are the types of Companies permitted to be incorporated and how are these named and also what are the major changes in the Act.

- P. William, Nugegoda.

Answer: The types of Companies are:

(a) Limited Company
- Public Quoted Company - with the ending as "Public Limited Company" or "PLC"
- Public Company - with the ending as "Limited" or "Ltd"
- Private Company - with the ending as "Private Limited" or "(Pvt) Ltd".
(b) Unlimited Company
(c) Company limited by Guarantee without issue of shares

The major changes in the Act are:
* Incorporation is made easier and simpler
* Provision for Single shareholder
* No Memorandum of Association
* Removal of the doctrine of ultra vires and the Memorandum
* Solvency Test and Capital Maintenance Provisions
* Restrictions on Major Transactions that can affect the company
* Minority buy-out and exist options
* Directors duties set out statutorily
* Easier provisions for resolutions, etc
* Statutory derivative action
* Statement by person ceasing to hold office as Auditor
* Company Disputes Board (CDB)
* Administrator's appointment for reorganisation
* Shareholding of Secretary Treasury with special features
* Clear procedure for company litigation
* Realistic penalties for offences
* Specialized Court for company cases
* Provision for electronically stored documents, etc
* Now process of re-registration and numbering of companies.

Rizana Nafeek

UN Human Rights Council should take up the issue of the death sentence imposed on an underage domestic worker Rizana Nafeek in Saudi Arabia. The UNCHR which advocates against the death sentence anywhere in the world should make an effort to save the life of Rizana.

Steps should be taken to bring charges against the clandestine employment agency for virtual trafficking of Rizana.No clemency should be extended to offenders from countries who promote harsh criminal justice systems. Reciprocal treatment is basic part of diplomatic protocol.

Legal Aid Commission, Migrants Desk

For further details,please visit our Website:www.lawaid.org

For victims of crime please visit the following Website:www.ncvcsrilanka.org

No.	Centre	Officer-in-Charge				Address/T.P.

01.	LAC Headquarters	Justice Hector Yapa		Legal Aid Commission
				Rtd Judge of the Supreme Court	No. 129, Hulftsdorp
				Director General		High Court Complex,
				-				Colombo 12
				-				5335329
				Mrs. Nelum Gamage		5627338
				Consultant

02.	Tsunami Regional	Ms. M.S.M.M. Piyumi Kumari	211, Superior Court
	Centre			A.A.L./Co-ordinator		Complex, Hulftsdorp,
								Colombo 12
								060-2137153

03. 	Welikada Prison		Ms. Thushari Karunasinghe	Welikada Prison
				A.A.L./Co-ordinator		Welikada
								5335329

			New Centres Established by LAC in 2006

04. 	Bandarawela		Ms. Anoma Atalugama	15, Welimada Road
				A.A.L./Legal Officer	Bandarawela
							057-2224733

05.	Matale			Jaliya Goonaratne	Court Complex,
				A.A.L./Legal Officer	Matale
							060-2664588

06. 	Avissawella		Ms. Hiranthi Liyanage	Court Complex,
				A.A.L./Legal Officer	Avissawella
							060-2362219

07. 	Ratnapura		Ms. R.M.I.R. Rajapaksha	Court Complex,
				A.A.L./Director		Ratnapura
							045-2226899

08. 	Negombo			Swarna Perera		46, Main Street,
				A.A.L./Hony. Director	Negombo
							031-5677111

09.	Kalutara		Ms. Pavithra Sanjeevani	No. 443, Galle Road,
			Co-ordinator/Legal Officer	Kalutara
							034-5628860

10. 	Gampaha			Vas Gunawardena		Court Complex,
				Director		Gampaha
							033-5677998

11. 	Polonnaruwa		Deva Kularathna		Court Complex,
				Director		Polonnaruwa
							027-2226572

12.	Anuradhapura		D.P.B. Mahadiulwewa	Court Complex
			A.A.L./Regional Director	Anuradahpura
							025-2224465