Legal Aid Commission

National Legal Education

The primary requisite of equal access to justice for the people is that as stakeholders they should understand what is happening to them in courts. If the language used by the judges, lawyers and court officials in the dispensation of justice is different from the language understood by legal stakeholders, no pontification that equal justice is available to the people will be justified.

Prior to transition to native Sinhala and Tamil as the languages of courts, many rural litigants were gaping at the mouth of the interpreter Mudliyar to understand what the black coated legal ilk was discussing about a poor man’s future.

The howlers of interpreter Mudliyars have become the subject of many anecdotes.

The underlying miscarriage of justice that results from hilarious interpretations tantamount to serious miscarriage of justice for nearly two centuries in this country.

In 1970, the then Minister of Justice took initial steps to recorrect the systemic injustice resulting from the use of English in courts where the litigants understood only Sinhala and Tamil.

As a first step, legal education at the Sri Lanka Law College was gradually to be administered in Sinhala and Tamil.

There was parochial resistance from some brown sahibs members of the Council of Legal Education with vested interests. The doors of legal education should only be opened to those coming from elitist families or the affluent sons who were able to pass out as Barristers and Solicitors in the United Kingdom.

The obstinate attitude of the Council of Legal Education could only be corrected by adopting an amendment to the Council of Legal Education Law by expanding the membership of the Council so that any kind of education in the island could not control by the monopoly of a handful of individuals even if they consisted of venerable judges of the Superior Judiciary.

During the past 40 years Sinhala and Tamil became the medium of Law teaching not only in the professional institute of the Sri Lanka Law College but also in the law faculties of the Universities.

The lawyers who studied in the vernacular have contributed to legal writing and more than all brought justice to the doorsteps of village homes.

The process became systemic and a strong pillar of equal access to justice which was formally entrenched in the administration of justice in Sri Lanka.

During the past few years, all the efforts and hard work devoted to bring justice close to the people have been reversed by the decision of the Council of Legal Education without public discussions.

Since last year, the Law students whether they came from Sinhala or Tamil medium schools were compelled to sit for their Law College Examinations in English.

The Law Graduates who completed their law studies in national languages were compelled to complete their examination to enter the legal profession in the English language which was never their focus earlier.

They were not given adequate early warning of this language tsunami preventing them from becoming legal professionals in the national languages.

Adopting English and IT is a laudable policy for national development but justice to people should be taught and administered in the national language as it had been done for the past 40 years and recognized by the Constitution.

The reversal of the national effort is a travesty of justice -

We are all told the legal maxim ‘Ignorance of the law is no excuse’. Please don’t make the phrase turn on its head.

S.S. Wijeratne

Diploma in Commercial Arbitration

Those who wish to follow the Diploma in Commercial Arbitration should possess an academic or professional qualification or experience in a professional practice such as law, accountancy, engineering, banking, architecture, IT etc.

The course which commences on October 24, 2009 will be of four to six months duration. Lectures will be conducted on Saturdays from 9 a.m. to 1.30 p.m. at the ICLP Auditorium, No. 61, Carmel Place, Colombo 3. The course lecturers are: Justice Saleem Marsoof PC, Justice P.A. Ratnayake, Justice Hector S. Yapa, S.S. Wijeratne, K. Kanag-Isvaran PC, Dr. Harsha Cabral PC, Dr. E.M.G. de Zylva, Prof. Chitra Wedikkara, Walter Laduwahetty, Leslie Abeysekara, Uditha Egalahewa, AAL, Ms. Shehara Varia, AAL Ananda Ranasinghe, AAL Arjuna Obeysekera, AAL, Jayantha Fernando, AAL and Sunil Abeyratne, AAL.

For details contact: ICLP Arbitration Centre, No. 61, Carmel Road, Colombo 03, Telephone: +94(0011)2346163/4, Fax: 2346163, Email: iclp@eureka.lk, Website: http://www.iclparbitrationcentre.com

President’s Counsel Advisory Council to LAC for 2009-2012

The following Senior President’s Counsel have expressed their willingness to provide pro-Bono legal advice when recommended by the Legal Aid Commission. The Commission unanimously decided to thank the President’s Counsel for their professional commitment to legal aid for destitute litigants. The Legal Aid applicants could contact the President’s Counsel only through the Chairman or the Director-General of the Legal Aid Commission.

Chairman’s Tel. No. 2395894
Director-General’s Tel. No.5835329

01. N.R.M.Daluwatte, PC
102/12, Templer’s Road
Mt. Lavinia.

02. L.C. Seneviratne, PC
97A, Rosmead Place
Colombo 7

03. Ranjith Abeysuriya, PC
4, Sravasti Place
Colombo 7.

04. Faisz Musthapha, PC
35, Kaviratne Place
Colombo 6.

05. B.T.Eliayathamby, PC
“Mentmore”
100, 5th Lane
Colombo 3.

06. Romesh de Silva, PC
79/14, Dr.C.W.W.Kannangara Mw.
Colombo 7.

07. Jayantha de Z.Gunasekara, PC
9, Charles Drive
Colombo 3.

08. N.J.Abeysekera, PC
Legal Draftsman
Legal Draftsman’s Department
Colombo 12.

09. D.A.De Z.Wijesekera, PC
8B, Gregory’s Road
Colombo 7

10. Nihal Jayamanne, PC
7, Chandralekha Mawatha
Colombo 8

11. D.P. Kumarasinghe, PC
I.C. Summit Flats
Keppetipola Place, Col. 5

12. S.S. Sahabandu, PC
19, Charlemont Road
Colombo 6

13. M. Ikram Mohamed, PC
62/9, Anula Road
Colombo 6

14. S.W.L. Bandara, PC
26, Leyn Baan Street
Fort, Galle

15. D.P. Mendis,
7, Old Quarry Road
Mt. Lavinia

16. Dr. Jayampathy Wickremaratne, PC
231/12, 1st Lane
Kalapaluwawa
Rajagiriya

17. Wijedasa Rajapakshe, PC
140/23, Nawala Road
Nugegoda

18. Dr.B.J.P.Almeida Gunaratne, PC
16/3, Sulaiman Terrace
Jawatte, Colombo 5

19. Nigel Keith Hatch, PC
4/107, Talakotuwa Gardens
Colombo 5

20. M.Razik Zarook, PC
31/1, Horton Place
Colombo 7

21. Denzil J. Gunaratne, PC
410/8, Bauddhaloka Mawatha
Colombo 7

22. Ms. Shanth Abhimanasingham, PC
Bar Association of Jaffna
New Courts, Jaffna

23. Palitha Mendis Kumarasinghe, PC
615/10, Rajagiriya Udyanaya
Nawala Road, Rajagiriya

24. Manohara de Silva, PC
18A, Arthur’s Place
Dehiwela
25. Dr.Harsha Abral, PC
385/3, Kotte Road
Kotte

-----------------------------

Questions and Answers

Payment of EPF/ETF to employees

Question: My brother who retired is working in a private company. According to him, the Company is not contributing towards his EPF and ETF. In the circumstances, I would like you to advise me on the following matters:-

i. Is the Company correct in not contributing EPF to the retired employees over the age of 60?

ii. To what categories of employees should the ETF contribution be made?

iii. What is the percentage of contribution to ETF by employer and employee?

iv. Is there a time limit for payment of ETF and in case there is delay would surcharge be levied and if so what is the rate of surcharge?

v. Is the employee required to make a nomination for ETF?

I wish to thank the Legal Aid Commission for the valuable service rendered to the public through its Legal Aid Page.

G.Fernandez, - Maharagama.

Answer: The answers to your queries are given below:-

(i) The Company should contribute EPF to retired employees over the age of 60. The law was amended in this regard effective from 01.01.1995.

(ii) Contributions to ETF should be made in respect of all employees on permanent/temporary/casual/contract or piece rate basis and apprentices irrespective of their age.

(iii) The employee does not contribute to ETF. The employer should contribute 3% of the total earnings.

(iv) There is a time limit for payment of contributions. Surcharge should be paid on late or delayed contributions -

The rate of surcharge is as follows:-

(a) Not exceeding 10 days 5% of the contribution.

(b) Not exceeding 01 month 15% of the contribution.

(c) Not exceeding 03 months 20% of the contribution.

(d) Not exceeding 06 months 30% of the contribution

(e) Not exceeding 12 months 40% of the contribution.

(f) Exceeding 12 months 50% of the contribution.

(v) Nomination is a requirement under the Law. Nomination as well as revocation should be done in the appropriate form. Document of nomination and revocation should be forwarded to the Board by the employee through his employer within 30 days of execution of the documents.

The Board may refuse to accept the document it is not sent within the stipulated period of 30 days unless it is satisfied that the delay was due to unavoidable circumstances. A member making the nomination or revocation shall sign and place his thumb marks on such nomination or revocation as the case may be in the presence of a witness who shall sign and witness the signature and thumb marks of such member.

Where a person is unable to sign, he shall place his thumb marks in the presence of another person who shall certify the thumb marks of the person who makes such nomination or revocation. No person who has been nominated by a member in any nomination shall witness the signature or thumb marks of that member in that nomination.

Where more than one person is nominated in what proportions the shares are payable will have to be specified. If no directions are specified regarding the proportion of the shares benefits will be distributed equally. Any nomination made by a member prior to his or her marriage shall be deemed to be revoked upon marriage. Every nomination by a member who is married shall be in favour of one or more members of his family.

Permits issued by Coast Conservation Department

Question: I came to know through your Legal Aid Page last week that there are two types of permits issued by the Coast Conservation Department before initiating any development activities in the coastal zone.

Could you kindly explain the activities that come under the respective permits? Your kind reply would be greatly appreciated.

P.Alawatte, - Pannipitiya.

Answer: The two types of permits that are issued by the Coast Conservation Department (CCD)for development activities within the coastal zone are -

(a) Major Permit. This permit is issued by the Director Coast Conservation Department.

(b) Minor Permit. This is issued by the Divisional Secretary on behalf of the Director, Coast Conservation Department.

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 1000 sq. ft (93 Sqm) 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 wastes

* 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 1000 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 the CCD permit procedure. Hence Public Institutions must consult, the CCD prior to commencing the development activities.

Encroachment of State land

Question: Please let me know if it is an offence to encroach a State land? I am aware that most people, who do not have any land, try to encroach the State lands. Is this possible? I await your kind answer.

S. Priyantha, - Moragoda.

Answer: It is an offence to encroach State lands. If the said land is reserved for future needs, the ownership of the same will not be given to anyone.

The lands reserved for rivers, channels, streams, roads, reservation of the water sources demarcated State forest, sanctuaries, parks and reservoirs should be considered as the lands reserved for the public purposes. In such event, the ownership of the same land cannot be given to people and they have to quit the land concerned.

In case any person or their family members does not own any land for residential purpose, they have to meet Divisional Secretary or Deputy Land Commissioner (inter province) in the Division that they reside could ask for a portion from the State lands. The Divisional Secretary will take prompt action to attend to their request and preference will be given to those people who are not in possession of any land, neither occupation nor cultivation. Otherwise encroaching of State land is an offence under the law.

Rights and obligations of condominium owners

Question: I own an apartment in Colombo and would like to know the rights and obligations of Condominium Owners.

A. Wickremasinghe, Colombo.

Answer: Condominium living requires adherence to By-laws and above all, recognition of the right of a fellow condominium dweller for peaceful and quiet enjoyment of his or her condominium property.

Since condominium dwellers share walls, floors, entrances, ceilings, corridors, parking areas and other common areas, noise and smoke especially can be a nuisance to fellow condominium dwellers. A condominium owner should respect the need of the others living in the same building for peace and quiet just as much as he or she needs a quiet and peaceful environment.

Inconsiderate neighbour will make condominium living an unpleasant experience unless the Management Corporation formulates rules and enforces them without fear and favour to ensure a harmonious and pleasant environment. A condominium dweller must however, appreciate that a certain degree of noise cannot be avoided, especially in an environment where there are children. A Condominium Owner is prohibited from -

a. using his/her unit for any purpose which may be injurious to the reputation of the building;

b. use as fuel any substances or material which may give rise to smoke or fumes or obnoxious smells;

c. make any alterations to his condominiums parcel contrary to the approved building plan of the Condominium Property or Semi Condominium Property.

d. throw or allow to fall any refuse or rubbish of any description on the common elements or any part thereof except in refuse bins maintained by the owner or in refuse chutes provided in the building; or

e. keep any animal on his/her unit or the common elements which may cause annoyance or any other owner.

A Condominium Owner should observe and comply with the following by-Laws:-

Can Domestic servants - seek relief from Labour Tribunal?

Question: Can domestic servants seek relief from Labour Tribunal for termination of employment? Your reply is solicited.

S.Jayatunge - Kelaniya

Answer: Yes. The Judgement of the Supreme Court in Wijedeera vs Baby Hamy 74 NL 838 explains this.

What is meant by

Non-Recurring Cost of Living Gratuity?

Question: What is meant by non-recurring Cost of Living Gratuity? Is this reckoned for EPF and ETF? I await your kind response.

P. Pushpakumar - Kalubowila

 This is a payment based on the Cost of Living index. This is specified in collective agreements.

This is not taken as total earnings for EPF. This is exempted from EPF. Collective agreements specify that this payment should not be considered for EPF and ETF purposes.