Sie sind auf Seite 1von 4

1)shortcomings in law enforcement and

access to justice
Sometimes, there are shortcomings in law
enforcement and access to justice. Due to
complexity of the society the acts have to form
by the parliament otherwise no accessibility to
the justice. Especially crime done in
electronically using computer or internet or
other electronic media, still have to be
approved the acts relevant to the crimes.
Sometimes human right sector, the people have
not aware on the sector or they think that they
have no right to enter to the justice. This not a
shortcoming of the law but some incidents,
cannot prove due to the unclear definition of
the law. Also there are some facts have defined
in various means and these situations still have
to open to discuss or arguments.
Issues for law enforcement
*Knowing which laws have been violated
*Respond to hate crime incidents
*Stabilize the victim(s) and request medical
attention when/if necessary
*Understanding the process for addressing the
various kinds of traffickers and victims (i.e.
Coyotes and illegal immigrants)
*Awareness that the victims suffer a violation
of human rights and need protection
*Promotion of the safety and wellbeing of
victims is paramount
*Have a plan of action when it relates to the
incidents involving human trafficking
*Use relationship building skills when it
relates to the victims of this kind of crime
Above few points can be mentioned there may
be some shortcoming in law enforcements and
enter to the justice.
A woman to whom Tesawalamai
applies marries a man to whom
Tesawalamai does not apply

Theswalamai Law is based on

ancient customs of Jaffna Tamils in
Sri Lanka. It applies to Tamil
inhabitants of the Jaffna Peninsula in
Northern Sri Lanka. This customary
and personal law also applies to
numerous Jaffna Tamils who no
longer live in the Jaffna Peninsula. It
is a commonly held belief among
many in Sri Lanka that Thesawalamai
applies only to Jaffna Tamils who
reside in the Jaffna peninsula. The
however, ruled in a 1988 case,
Sivagnanalingam v.GlobaLex - Sri
Lanka: Thesawalamai is a personal
law that applies to Jaffna Tamils
wherever they live in the country,
and that it applies also to their
movable and immovable property,
wherever it is situated in the country.
The Supreme Court, overturning
decisions of the lower courts, held
that Thesawalamai would not apply
to Jaffna Tamils only if there is
abandonment of inhabitancy in
Jaffna. This Supreme Court ruling
suggests that a Jaffna Tamil could live
for decades in another part of the
inhabitancy if he or she, for
instance, continues to own property

in the Jaffna Peninsula, or even visits

Jaffna on a somewhat regular basis.
The ruling also indicates that each
case must depend on its own facts.
The only Thesawalamai laws that are
now applicable to Jaffna Tamils relate
3)issues. Also, the Supreme Court exercises
sole and exclusive jurisdiction over questions
concerning the on constitutionality of a
parliamentary bill or a particular provision in
the bill, subject to certain constitutional
requirements. The Supreme Court has the
exclusive jurisdiction to hear and determine
issues relating to the interpretation of the
Constitution. The Supreme Court also has the
sole and exclusive jurisdiction to hear and
determine issues relating to the infringement
of fundamental rights by Executive or
Administrative action. These fundamental
rights include freedom of thought, conscience
and religion; freedom from torture; right to
equality; freedom from arbitrary arrest,
detention and punishment; prohibition of
retroactive penal legislation; and freedom of
speech, assembly, association and movement.
The Constitution provides for temporary
restrictions on fundamental rights if national
security issues are involved. The Supreme
Court also exercises consultative jurisdiction.
If the President of the Republic deems that a
question of law or fact that has arisen is of
such a nature and of such public importance,
the President may refer the question directly to
the Supreme Court for an opinion. The
consultative jurisdiction also extends to any
concerns expressed by any Member of
Parliament regarding the ability of the
President to effectively discharge his or her
duties. These concerns, in the first instance,
would be addressed in writing to the Speaker
of the House of Representatives by the
member or members of Parliament. These
concerns would be that the President is
permanently incapable of discharging the
functions of the office due to mental or
physical frailty, or that the President is guilty
of intentional violation of the Constitution,
treason, bribery, misconduct or corruption
involving the abuse of the powers of the Office
of President, or any offense under any law
involving moral turpitude.
Explain briefly the four elements that should
be present in a legally enforceable contract.
(1) Agreement
Contract Agreement is a legal documentation
that provides provisions to monitor the project
according to the conditions of contact within
the budget and the period. There are three
contract agreements between;
A//Principle Contractor and the client
B//Client and the Consultant
C//Principle Contractor and the Sub contractor
However, according to the condition
of contract both parties should perform their
activities. Specially, it is very important to
avoid conflicts among the both parties and it
enact as a constitution of the particular project.
2)The parties to the contract
must intend their agreement to
create legal consequences.
Since parties involved to the agreement that
they must intend to create the legal

consequences, because otherwise if one party

breached the conditions of contract, directly
affect to the other parties. Therefore, there
should be provisions to recover the damage
due to the breaching of the conditions. Also it
will be a guide line for the parties that are
involved the agreement. It will support to the
5)sue at once for damage. He can however
decide to stand upon his contract, hold the
other party responsible and wait for the time of
performance. The defaulting party can full fill
his obligations under the contract despite his
2...Where there has been a fundamental breach
of contract. Where one party without expressly
or impliedly repudiating his obligations,
commits a fundamental breach of contract, the
contract is deemed to be discharged. Various
factors are considered in determining whether
a breach constitutes a fundamental breach, for
it is not every breach which terminate a
Where the breach does not discharge the
contract in this situation the injured party can
either sue for damage or ask for the degree of
specific performance
(i) Mutual mistake
Mutual mistake occurs when each party may
be mistaken mutually to the other partys
intension although each party ignorant that any
mistake exists. To prevent this type of
incidents the court would look at the evidence
from the point of view of the reasonable party.
That is , would a reasonable person has entered
in to a contract by such a mistake. If he would
have done so, the mistake would prevent
EX; A offers to sell his old car to B, but B
thinks that A is referring to his new car
(i) Unilateral mistake
In unilateral mistake the knowledge of the
error makes it impossible to apply the
objective test of intention. Therefore where
there is a unilateral mistake the court adopts a
subjective approach and allows the mistaken
party to show the effect of the mistaken on his
Ex; A agrees to buy a car thinking 2015
model but it is 2014 model
(ii) Common mistake
In this case, agreement will nullify. Because
both parties know the intension of other party
but unfortunately object which is to be sold is
Ex; A agrees to buy a car of B, at a certain
price but car was stolen last night.
The terms of a contract are classified into
Conditions and Warranties and they have
different meanings in English Law and in
Roman Dutch Law. Discuss.

In Sri Lanka the determination of whether

these terms are to be given The English
meaning or the Roman-Dutch law meaning,
depends on whether particular contract is
governed by English law or roman-Dutch law.
In English law a condition is a vital
term of a contract, which goes the root of the
contract and breach of which entitles the injury
party to rescind the contract and sue for
damage. A warranty in the English law is not a

vital term in a contract, but a subsidiary one, a

breach of which gives the injury party no right
to rescind the contract but only a right to sue
for the damages which he has suffered.
According to the Roman Dutch law
a condition affects very existence of the
contract and if the condition fails there is no
2).property and interstate succession
resulting from marriage.
A person who was born in Jaffna left
Jaffna when he was very young and
settled down and married a woman
in Colombo. Is this person governed
by Tesawalamai

No, it is not mentioned that he is not

even travel to Jaffna frequently and
he is settled in Colombo. Therefore
he is not within the limit of this law
because following statement shows
the contents of the law. It applies to
Tamil inhabitants of the Jaffna
Peninsula in Northern Sri Lanka. This
customary and personal law also
applies to numerous Jaffna Tamils
who no longer live in the Jaffna
Peninsula. It is a commonly held
belief among many in Sri Lanka that
Thesawalamai applies only to Jaffna
Tamils who reside in the Jaffna
A person governed by Tesawalamai has
properties in Colombo and Matara. Is
Tesawalamai applicable to these properties
Answer is No, because the properties are not
located in the Jaffna Peninsula.
What are the institutions that create law in
Sri Lanka? Explain.
There are various types of law in every
country. Likewise in Sri Lanka also exists
various types of laws such as human right
laws, company laws, construction or contract
laws, computer crimes, consumer protection,
criminal and civil laws etc.
How ever, laws are created by the
parliament as acts or bills. Also Supreme Court
and courts of appeal contribute their role to
create the laws. Following statements show
how laws are created; Supreme Court and
Court of Appeal cases now are published in the
Sri Lanka Law Reports. As of October 2008,
Supreme Court cases from 1878 through 2005,
and Court of Appeal cases from 1809 through
2005. Acts and Bills of Parliament, when
available for publication, are published in the
Extra Gazette. Usually, it takes a while for the
Acts, Bills, Forms, Gazette, and News links.
Mainly following institutions also contribute
their role to create laws such as;
1. The Constitution
The constitutions have been created in the post
independence period and this is a written
document. It represents the supreme law of the
country. The first constitution is created as
Republic of Sri Lanka in 1972.
The constitution is playing vital role
for the governing of the country. And it deals
with important roles such as government
procedures, produce amendments, other laws
comes from decisions given by the Supreme
Courts and other acts approved by the
2. Legislation

This is the most important law source in Sri

Lanka. This source plays vital role in
governing most of the fields of the community.
For example in the construction industry, many
statutes pertaining to the urban planning, the
environment and local government can be
mentioned. Most of the laws reference to the
procedures, policies, programs and standards
govern by the legislation.
3. The courts
Supreme Court exercises jurisdiction over
constitutional matters and fundamental rights
4)complete the project up to the expected
standards within the agreed budget and the
1.If the agreement has to be
made in a particular form,
parties must observe that form
The contents of the form should be
transparency to all parties who involve the
agreement; otherwise there will be hidden
objectives. It may lead to damage to one party.
Hence, not only observe but also should
understand the conditions and all ideas
included in the format.
2There must be causa or
The idea of consideration is vital to contract
law because, in order for a contract to be
enforceable, there must be mutually of
obligation. In other words, in order for a
contract to be valid, both parties to the contact
must be required to perform under the
contract. Consideration which represents the
commitment that the parties to the contract
make to each other, is at the heart of the
mutually of Obligation rule therefore,
without consideration, a contract will not be
a--A valid acceptance must have several
requirements. What are they? Explain.
They are as follows
1...An acceptance cannot be a counter offer
If an offer should be accepted at first instance,
otherwise it can be rejected by the owner. For
ex; A is willing to offer his car to a certain
amount of money to B, but B offered
somewhat lesser amount of money. Since did
not accept first offered by A, B agreed to
buy it to original value, but A can reject
second offered.
2An acceptance with some variation or
addition of terms would be invalid.
For Ex; a person offering to buy a goods
another could place an order for the goods on a
form specifying his standard conditions of
trade and the seller could accept the offer by
writing to the buyer on a form stipulating his
standard conditions of trade, which differ
materially from those of the buyer.
3...Acceptance in order to be valid must be
communicated to the offeror. The offeror can
prescribe the method of communicating
communication of acceptance that acceptance
by silence would suffice. However this
principle would apply only if acceptance could
be legitimately presumed from silence. Also
different rules apply to communication of
(a) Where the parties are physically present
(b) Where the communication of acceptance is
by post.

What are the remedies for the breach of a

contract where the breach does not discharge
the contract? Explain.
There are two types remedies in breach of
contract that are based on the two situations
aWhere the breach discharge the contract.
The remedies available to injured party in this
situations were considered as follows
1...Where a party intimate either expressly
impliedly that he does not intend to honour his
obligation under a contract when they fall due.
This is known as anticipatory breach. The
innocent party can accept the repudiation and
6)contract at all. Hence, if there is a breach of
a condition the rescission of the contract by the
injured party does not arise. Such a contract
would automatically cancels. Warranty means
a condition in the modern English law same.
However The English law has to some extent
been adopted b the modern Roman-Dutch law.
Mr. A owns a grocery
Since the shop is a self service B should get
the required paint by herself. The shop owner
should provide all safety measure to the
customers. Due to shop owners negligence,
the shelf came off from the wall and the shelf
and its contents fell on her.
1..B is suffered arm injury due to shelf came
off from the wall and shelf and its contents fell
on her.
2...A is the grocery owner and the shop is a
self-service store.
Clearly B can impose contractual liability on
A (shop owner).
Since, the shelf fallen down due to the shop
owners negligence, that is a delict, a civil
wrong, which gives the victim a right to claim
compensation for the injury.
B can claim an unspecified sum on damages,
and she can get court action against shop
owner (A) for negligence.
a..Explain the liability based on negligence in
the following instances.
(i)Negligent professional advice
Liability for purely financial loss resulting
from careless words will be incurred on the
basis of foresee-ability of harm only if there is
some relationship of proximity between the
giver of the opinion and the receiver.
The most famous English case on the liability
for negligent statement is Hedley Byrne
(1964). This case established that if a person
possessed of skills to provide advice gives
information knowing that some other person
will rely on that advice, he owes a duty to take
reasonable care in expressing that opinion,
thus the existence on an opinion reasonable,
and the factor of reliance is necessary to create
a duty of care.
Professionals are thus clearly liable. The
Hedley Byrne rule can also cover Para
professionals provided it is reasonable to rely
on that opinion. Reliance by the victim is
Occupiers liability for dangerous
buildings and premises.
A person who causes damage at a building site
or in premises can be liable in negligence on
the basis of failure to observe a duty care. In

addition any person who has control of

premises that are a potential source of danger
to others has a duty of care to avoid causing
foreseeable physical injury.
Control may be in the owner or the occupier,
even a person who has controlled for a limited
period (i.e. a contract period.)
English Common Law,
Prior to statutory changers, duties of care
varied depending on the capacity in which the
victim entered the premises. Thus different
duties of care were owed to invitees or
licensees, and hardly any duty of care to
7)trespassers. The law has been modified after
Herringtons case (1972), so that an occupier
is expected to act with common humanity in
giving warning of damagers if the presence of
trespassers was reasonably foreseeable.
Roman Dutch Law,
*..Does not recognise thus the different duties
of care were owed to invitees or licensees, and
hardly any duty of care to trespassers. But in
Sri Lankan Law, the basic issues will be
reasonable foresight in regards to the presence
of the victim on the premises.
*...In this law, there is a duty to use reasonable
care to make the premises reasonably safe for
a person who enters on business.
*..By contrast foreseeability is the basic
criterion. The occupier may also be liable for
not warning against the danger he ought to
have known about.
*...This law recognises duties of care based on
foreseeability in respect of damages caused to
persons using the highway, by excavations or
other activities on premises adjoining a
Courts have developed certain tests to
distinguish independent contractors from
employees. What are these tests? Explain.
Normally an employee is subject to the direct
supervision of their employer who controls the
manner in which tasks are performed. An
independent contractor works independently to
achieve a specified result.
T0 determine whether an individual is an
employee or independent contractor, should
"employer-employee" relationship
between the payer and the payee.
There are a number of considerations when
evaluating whether an individual is an
employee or an independent contractor for
income tax purposes, and the courts over the
years have developed key tests to assist in
determining this.
There are three most significant tests:
1. Control test
This is the most common and oldest test used
in courts. That is whether the employer
exercises control over the person whom he has
engaged to do a job of work.
This test deals with the ability of the company
or institution to control the actions of the
The distinction to be made is whether a
contract between the individual and the
employer is a contract for service or a
contract of service. The employer could not
control the work of Employees.
"A contract of service generally exists if the
[Employer] has the right to control the amount,
the nature, and the management of the work to
be done and the manner of doing it. A contract

for services exists when a person is engaged to

achieve a defined objective and is given all the
freedom required to attain the desired result."
In addition to this is the ability, where possible,
of the contractor to control the place of work
and the ability to delegate items to others.
2. Integral test
"Test on Employment Status," taken from the
NACUBO Business Officer, August 1992, may
also assist with the determination of whether
an individual is an employee or an independent
contractor. This test presupposes
9)Sri Lankan labour Law allows hiring fixed
term contract workers for tasks of permanent
nature. (EWI)There is no provision on fixed
term contracts in the labour laws. The Law
does talk about temporary employees and
specifies that these are employed "temporarily
by an employer to perform work of a
temporary nature on not more than one
hundred and eighty days in any year in the
aggregate. One type of contract employment
and most of the time Employees at higher
levels taken for fixed periods.
Casual employment
Casual employees are employees who do not
have regular or systematic hours of work or an
expectation of continuing work. A typical
casual employee is employed on a daily basis
when the need arises or otherwise employer
offers him work only when work is available.
Casual employees are paid a loading to
compensate them for lack of entitlements such
as annual leave, personal leave and the lack of
continuity of work. Casual employees are not
entitled to notice of termination or redundancy.
If casual employees are rostered to work on
public holidays, they are entitled to payment
for that holiday.
Work continues for long period of time
casualness is lost. There is no law at present to
compel an employer to make a casual
employee permanent after certain period of
time. However, in certain workplaces casual
employees are considered for permanency
after 6 months. But this is only a practice and
not legal requirement.
The casual employees too are entitled to
certain benefits under labour legislation such
as EPF and ETF benefits and minimum rates
of pay and holidays under the Wages Board
An Apprentice is a person who learns a trade
or a skill, in other words a trainee. He is not
considered as an employee in the normal
sense, and is not under a contract of service.
He generally agrees to perform work with or
without pay in order to learn some work.
Employment of Trainees (Private sector) Act
No. 8 of 1978 provides that employers and
workers may enter a contract of training for up
to maximum one year. At the end of the
training period, unless for disciplinary reasons
or for failure to attain satisfactory
competencies in the vocation chosen, the
Employer should provide employment to the
trainee or in the alternative find him a suitable
An apprentice is different from a probationer.
Normally an apprentice is paid only an
allowance during the period. There are special
laws applicable to apprentices. There are:

Natural Apprenticeship act 49

of 1971

(Private sector) Act No. 8 of

Wages Board decisions. eg.

Garment Manufacturing trades.
Nowadays trainees are covered by the National
apprenticeship Board Schemes. However, it
should be noted that these wages board
11)the manner of settlement of any industrial
(2) Reference shall be made in the collective
agreement to the parties and trade unions to
which, and the employers and workmen to
whom, the agreement relates as

to Commissioner and
publication of such agreement.

Date on which collective agreement

comes into force, and its duration.

Effect of a collective agreement.


Orders in respect of employers on

whom certain collective agreements
are not binding as provided.


Duty of employer bound by a

collective agreement to exhibit
notice containing provisions of the
If person succeeds in bringing about a
settlement, then draws up a Memorandum of
settlement report relating to the dispute. This
settlement is binding on both the parties and
the terms of settlement become implied terms
in the contract of employment.
Voluntary Arbitration
Arbitration is the submission of a dispute to
the judgement of a third party. In Conciliation
only the parties are involved.
Voluntary arbitration as the name implies is the
submission of a dispute to arbitration at the
request of the parties to the dispute, on their
own free will.
When the parties grant their consent to refer
the matter to arbitration the Commissioner of
labour refers it to an arbitrator. Arbitrator will
appoint or nominated by the Commissioner of
(a) State the defences to the rule in
Rylands v Fletcher.
Rylands v Fletcher (1868)
Rylands was a mill owner who employed
independent contractors to construct a
reservoir on his land in order to provide water
power for his mill. When the reservoir was
filled with water, the water seeped through
some disused shafts and passages and flooded
a mine belonging to Fletcher. Flectcher sued
Rylands for the resulting damages.
Held that Rylands was liable. Strict
liability was imposed.
The rule in Rylands v Fletcher is recognized in
English Law as creating a special type of strict
liability or liability without fault.

The rule has been often set out in this way;

a person who, in the course of making a non
natural user of land accumulated on it,
anything likely to do harm if it escapes, is
liable for the interference with the use of the
lan of another, which results from that escape.
Due to that nuisance creates strict liability
without fault for a situation that causes
continuing harm.
The rule in Rylands v Fletcher contemplates
strict liability for harm caused by the escape of
a substance on a single occasion.
8)that if the services provided by an individual
are integral to the organization, then their
involvement is one of employee. If the
services can be viewed as part of a separate
business of the individual who provides the
services, the individual may then be viewed as
an independent contractor. The courts have
tended to downplay this test, however, on the
basis that businesses can be mutually
dependent on each other without a "masterservant" relationship. Due to the inadequacy of
the control test courts developed this test. This
test deals with the individual's degree of
involvement in the organization.
No one factor determines whether an
individual is an employee or an individual
3. Economic reality test
This test deals with the economic practices of
the individual. If the individual has ultimate
responsibility for the profit or loss of the
contract, then this test would indicate a selfemployed situation. Where there is financial
risk, opportunity to profit or possibility of loss
and responsibility for costs, it is inferred that
the taxpayer is an independent contractor.
Factors to be considered in the determination
are as follows,

Man performing the services

provides his own equipment

Whether he hires his own equipment

Degree of financial risk he takes

investment and management
On the other hand, where these elements do
not exist, there is an inference of employment
(a) Write a note on the common
employment categories existing in
Sri Lanka.
The common employment categories can listed
and rank as follows,
Employment Type


Fixed term employment

Casual employment


Seasonal employment

Permanent employment
Newly appointed person who is serving a
probationary or trial period in his job, who is
working under probation period. By serving a
probationary period, employer can ascertain
suitability and he can decide whether to make
permanent or discontinue the service. During
the probation period employer can discontinue
at any time due to disciplinary reasons or
insufficiency. If the employer not satisfies the
employees work progress or he think that
employee needs more time to adjust, trains to
the work, employer can extent the probation
There is no clear provision in labour laws on
the duration of probation period in Sri Lanka.
Generally, probation period is six months. But
in the government sector probation period is 3
years. The Shop and Office Employees Act
requires the employer to clearly mention the
period of probation, conditions governing such
probation and circumstances under which the
employment contract may be terminated
during probation.
Fixed Term Contracts
10)decision prescribe the minimum wages and
period of training for the apprentices.
Seasonal employment
They also a type of temporary workers, but
they are employed only during a particular
For an example; the hotel employees taken in
during the tourist season, business doing in
Christmas, New Year (Sinhala and Hindu), and
Wesak season etc.
Permanent employment
The employers may eligible to have a fixed
salary at the end of the month. After complete
the probation period, then they become
permanent on the job and entitled to certain
benefits such as Pension, Gratuity, Statutory
Schemes etc.
This type of employments is secure as their
services cannot be terminated at the discretion
of the employer. Notice should be given before
either party terminates the contract of
They may be eligible to join a union, and may
enjoy both social and financial benefits of their
(b) State and briefly explain the
specific methods by which conflicts
could be resolved in terms of the
Industrial Disputes Act.

This Act has been passed with the intention of

Preventing, Investigating and Setting Industrial
Disputes and for matters connected herewith.
The principal legislation available in Sri Lanka
for the settlement of Industrial disputes is the
Industrial dispute Act No. 43 of 1950, as
amended from time to time. The Industrial
Dispute Act has a general duty on the
Commissioner of Labour to take step to settle
industrial disputes whenever, they come up or
are likely to come up.
There are six specific methods by which
conflicts could be resolved in terms of the
Industrial disputes Act. These methods are as

Settlement in terms of any

arrangements set out in a collective
agreement (S.3(1)a))

Conciliation by the Commissioner of

Labour or an authorized officer

Voluntary Arbitration (S.3(1)(d))

Compulsory Arbitration (S.4(1))

Reference to Industrial Courts


Application to Labour Tribunals

Settlement in terms of any arrangement
(1) In this Act, "collective agreement means
an agreement which is between;
(i) Any employer or employers; and
(ii) Any workmen or any trade union or trade
unions consisting of workmen; and
(b) Which relates to the terms and conditions
of employment of any workmen, or to the
privileges, rights or duties of any employer or
employers or any workmen or any trade union
or trade unions consisting of workmen, or to
12)This rule permits strict liability without
faults to be introduced in a variety of situations
where high risk of harm has been created. Its
rationale is that any person who creates such a
risk should be liable for the harm caused to the
victim, even if he has not been negligent or did
not intend to cause harm, liability is thus
imposed irrespective of the elements of fault
which is generally crucial for imposing
liability in a delict/ tort system.
The House of Lords held Raylands liable for
the damage to Fletchers property. In arriving
at this decision they imposed a new type of
strict liability for the harm caused. Rayland
would not have been liable according to legal
principles of English tort law, applicable at that