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Opinion


Making water safe for drinking

By Ayesha Wijeratne
Demand for bottled drinking water is an essential part of life among Sri Lankans. With high demand for the product, the quality has decreased and the topic “bottled drinking water” has been widely debated in the last decade.
The general public seems to suspect many bottled drinking water brands, which are mushrooming in the market place, are not in good hygienic condition and not up to the standard.
The Nation learns that only a small number of bottled water brands have obtained the Sri Lanka Standards (SLS) by the Sri Lanka standard Institution (SLSI). There are more than 300 substandard brands in the market while only 52 brands are registered with the Chief Food Authority (CFA).
It is important, in this context, that consumers know which products are cleared fo0r consumption by the authorities and the requirements imposed by law on manufacturers of bottled water.
The water industry began in the late 1980’s and rapidly developed with the demand of the people. Primitive purifying techniques used in the beginning by the manufacturers created lot of problems. There were complaints of bad odour, taste and colour of the water.
When manufacturers found that their products were being rejected by the market they contacted the Water Resource Board (WRB) to get their problems rectified. The WRB found remedies to their problems by studying water samples from the market and carrying out chemical and biological analysis.
“The WRB educate and advise manufacturers of bottle water on how to improve the quality of their product”, Professor of Geo Chemistry, Athula Senaratne, of the Faculty of Geology in the University of Peradeniya and former Chairman of the Water Resource Board told The Nation.
The Sri Lanka Standards Institution (SLSI) with the assistance of the WRB have drawn up standards for this industry. SLSI testing, which is similar to the procedure adopted in many foreign countries, is available, but the majority of the bottlers put their products to the market without any standard certification gained from SLSI, Professor Senaratne said.
The University of Peradeniya organized short term courses and seminars to educate water bottlers coming from various parts of the country. The University is also conducting an analysis in its laboratories from samples collected island wide, and the results of this study will soon be made available. Some of the bottled water products in the market are known to contain water of a greenish hue and have algae and iron oxide as well as bacteria, which is harmful to consumers.
The demand for bottled water is staggering. Though the demand is around 600,000 water bottles per annum, only 350,000 bottles are being produced, which leaves room for abuse by unscrupulous manufacturers.
The main purpose of implementing the new regulations under the Food Act No.26 of 1980 by the Health Ministry on the drinking bottled water and bottled natural mineral water is to ensure quality of water.
Regulations cited as the Food (Bottled or Packaged Water) Regulations - 2005, provisions apply both to Bottled or Packaged Natural Mineral Water and Bottled or Packaged Drinking Water.
In terms of the regulations, “No person should bottle or pack drinking water without obtaining a certificate of registration from the Chief Food Authority(CFA), (Director General of Health Services) - The Food Control Administration Unit of the Health Ministry. According to these provisions bottle or package natural mineral water should be extracted from an underground water bearing strata or from natural or drilled sources such as springs, wells, boreholes.
Dr C K Shanmugarajah, Director, Environmental, Occupational Health and Food Safety Unit, Health Ministry said, they had directed all the authorized officers - MOHs, PHIs and drug inspectors to inspect the market and compare them with the updated list of brands registered with the Food Authority verifying the registration numbers assigned and take legal action against traders and manufacturers violating the provisions.
“Most individuals who own and operate the packing facilities have little or no knowledge in the industry as a result of which the quality and safety of the bottled water produced are often inferior which affects the health of consumers. This also can have an adverse impact on the tourist industry”.
The regulations apply both to imported and locally manufactured products. A brand specific registration number will be assigned to the premises after verifying all details ensuring the safety and quality of the water processed. The registration, which is renewable every three years, will have to be displayed in the label or neck of the bottle.
A manufacturer who does not comply with the requirements of the regulations will be deemed in violation of the provisions of the Food Act and dealt with accordingly.
Major Sarath De Silva, Director ( Quality Assurance), SLSI stated that there are two separate standards for bottled drinking water and for bottled packaged natural mineral water.
Sri Lanka Standard specification number for bottled drinking water is SLS 894 whilst for natural mineral water is SLS 1038. The SLSI has issued a code of hygienic practice to be followed by manufacturers in relation to these standards.
To obtain the product certificate from the SLSI, a product should conform to basic requirements given by SLSI. The manufacturer should develop a manual regarding its management practices in that particular manufacturing facility setting out detailed guidelines. The manufacturer’s management procedures should be documented in the manual because it is part of the product certification scheme.
That process being done, provision must be made for the continual improvement of the system and the general maintenance of the system. The SLSI checks the quality of the raw water of the source and the water should be drawn from the sources mentioned in the regulations.
The standard provides for manufacturers to use even treated municipal water to engage in this industry. Two samples drawn from the same source should be passed through micro biological and chemical parameters given in these standards before a recommendation for a final assessment.
According to the MOU sighed between the SLSI and Health Ministry, the registration process carried out by the Health Ministry and SLSI involved in the testing part because the authority has to get the recommendation of a certified institution.
If all the conditions are satisfied and conform to the standard, certification may is granted from the SLSI after inspecting the source of the water, hydro geological report, cleanliness, perimeter and samples from the center processing facility should go through tests such micro biological, physical and chemical parameters.
The label should cover requirements such as date of expiry and manufacture which should be mentioned in at least two languages and the source of water under the Food Labeling and Advertising regulations of 2005.The expiry date depends on the quality of the content. It may be six to 12 months. Major Silva said that the bottled water products should be stored as a general food item and it is the manufacturers’ duty to advice retailers how to store the product properly.
The product name must prominent and it should be clearly indicated after the brand name, as “Bottled Drinking Water”. Manufacturers should refrain from stating any quality which would mislead the consumers and using fancy pictures in the label unless that picture is the exact picture of the source. The SLS product certificate is granted for three years and assessments will be carried out to check whether they maintain the quality.

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SC decision on financial institutions

A recent judgment of the Supreme Court on a case involving a leasing company concerning the stamping of guarantees and indemnities may have far reaching implications, particularly on banks and other financial institutions.
In a judgment delivered in SC 48/ 2004 by Justice Shiranee Bandaranayake and concurred by Justice Gamini Amaratunga and Justice Saleem Marsoof, the Supreme Court affirmed the order of Judge of the Commercial High Court, K. T Chitrasiri who upheld the preliminary objection of the defendants that the guarantee and indemnity could not be marked in evidence if such documents had not been stamped.
Given the public importance of the matters in issue, the Supreme Court sought the assistance of the Attorney General as amicus curiae.
The appellants, Ceylease Financial Services Ltd instituted action against one Anjalee Siriyalatha and Liyanage Ariyapala to recover a sum of Rs.8,914,834/-, which included overdue interest. These amounts were claimed on the basis of guarantees and indemnities relating to three lease agreements.
When the guarantee and indemnity dated 19.12.1996 was sought to be produced as evidence at the trial the defendants objected on the basis that it had not been properly stamped. After inquiry into the objection, Judge K. T Chitrasiri disallowed the document being marked as evidence.
At the time this document was signed there was a requirement to stamp a “bond, pledge and mortgage’ in terms of regulations gazetted under Gazette No.224/3 dated 20.12.1982 as amended by Gazette No.948/ 15 dated 06.11.1996.
President’s Counsel for the appellant took up the position that the guarantee and indemnity sought to be marked was not a bond. His position was that a bond represented a debt and, therefore, the guarantee and indemnity was not a bond. In other words at the time of signing the document the person issuing it should owe a specific sum of money. Therefore, the person issuing the document should be the debtor himself and not a third party. He contended that at the time of signing the guarantee and indemnity, the defendants were not debtors of the appellant. He submitted that, therefore, the document sought to be produced was a guarantee and/ or indemnity and not a bond as determined by the High Court judge.
In the context of these submissions, the Supreme Court considered whether the document, which is a guarantee and indemnity, would come within the purview of a bond. The Court expressed the view that it was necessary to look to the substance of the document in order to identify whether that would come within the meaning of a ‘bond’.
The Court was of the view that, “A guarantee and indemnity also deals with a fixed sum of money that has to be paid by the guarantor at a definite time. With regard to a guarantee and/ or indemnity, the fixed sum of money payable by the guarantor could be ascertained on a perusal of the schedule to a lease agreement. Such a schedule would indicate the number of monthly payments and the relevant other payments, which would be due at a fixed period of time. Accordingly the schedule would specifically set out a definite and a certain sum that the guarantor intended to guarantee by a Guarantee and Indemnity”.
President’s Counsel for the appellant also submitted that a document that is not duly stamped at the time of execution can be stamped at a subsequent stage and be admitted as evidence in court. Counsel for the defendant/ respondent contended that though the deficiency could be rectified by the payment of a penalty, it should be done prior to the production of the document in evidence. Court held that though the deficiency was curable in terms of section 33 of the Stamp Duty Act by paying the requisite duty and a penalty not exceeding three times the duty, a document could be marked in evidence, but that this must be done prior to marking the document in evidence. Court also pointed out that although the appellant had been granted time to cure the default, he had not done so. Court held, “Although the Court should be mindful of not permitting mere technicalities to hinder the process of justice, it must also be taken into consideration that unwarranted delay would also necessarily result in thwarting the course of justice. Although it is necessary to grant time in remedying the deficit in stamp duty, that should be done prior to the relevant instrument/ document is marked in evidence and more importantly within the time fixed by the Court”.
The Supreme Court also held that the obligation to pay stamp duty, in terms of section 24 (f), was on the maker of the document.
Banks, leasing companies and finance companies would need to be mindful whether the documentation they intend to produce as evidence in court is properly stamped. If they have not been stamped, the deficiency could be cured by payment of the stamp duty and a penalty not exceeding three times the duty before their production in court. For instance, if the stamp duty is Rs.100,000/- the penalty may be levied up to Rs.300,000/-.
This prohibitive cost may also require financial institutions to indulge in an exercise in cost benefit analysis before proceeding to litigation.
President’s Counsel, Nihal Fernando appeared for the appellants, while Attorney at Law, Kushan de Alwis appeared for the respondents. J. M

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The Bar Association of Sri Lanka

By Dharmapala Senaratne
It is worth reminding ourselves that President Mahinda Rajapaksa is a member of the Bar Association of Sri Lanka. Indeed, quite a large number of Parliamentarians including Cabinet Ministers are such members. The same could be said of all Legislatures ever since the BASL was formed.
Such political giants as Dr. Colvin R. de Silva, Felix Dias Bandaranaike, Gamini Dissanayaka, P. C., Lalith Atulathmudali, P. C., just to name a few, were no exception. It has always been a graceful event and welcome sight when they visit Hulftsdorp in order to cast their vote at the election of President and Secretary of the BASL.
With their professional training and the added fact that they move with every strata of society in the country during their professional practice, lawyers are driven to politics like ducks to water. Furthermore, they are scattered throughout the country, and some are with political backgrounds. Hence, it is no surprise that lawyers have always dominated national politics.
Although another professional body, namely, Government Medical Officers’ Association has often attracted public attention on account of their frequent trade union actions, they are a dwarf beside the BASL, to say so with absolutely no belittling intended.
It is no exaggeration that the BASL is undisputedly the strongest and the most influential professional organization in the country. As at present, it has a total paid up membership of around 9000, representing all parts of the country. Incidentally, since 1991, its electoral registers have been computer maintained.
Yet, the BASL does not have a long history, though its roots run deeper into the past.
The Law Society of Ceylon was incorporated in terms of Ordinance No. 33 of 1947 for the purpose of providing guidelines in respect of Proctors, as they were then known. The other branch of the profession, namely Advocates, were then organized under the Bar Council, which was not an incorporated body. The professional body for Barristers in England and Wales is still known as the Bar Council.
Thereafter, the Ordinance named above and the Legal Practitioners’ Ordinance were both repealed by the Administration of Justice Law No. 44 of 1973, enthusiastically initiated by Felix Dias Bandaranaike, the then Minister of Justice - an Advocate himself. The AJL came into effect on January 01, 1974.
By the provisions of the AJL, the distinction between Proctors and Advocates was done away with. Instead, it made provision to designate all lawyers as Attorneys of Law. Under the earlier system, the standing and functions of Proctors and Advocates were not quite the same. But that division, too, was removed.
Accordingly, the BASL was inaugurated in 1978 as the sole professional body as it stands today for all Attorneys at Law as they are now known. Views have been expressed by knowledgeable and concerned persons for and against this amalgamation.
And both viewpoints seem to bear some merit. A certain learned one writing on the merger said that it was confusion rather than fusion. His arguments cannot easily be refuted either.
However, similar bifurcation of the legal profession is still found in the UK. But in Canada and most of the States in Australia, a fusion similar to that obtaining in our country can be seen. It means that a lawyer can be a Barrister, Solicitor or a Proctor.
Be that as it may, the position of President of the BASL is not merely a prestigious one but a world recognized status. All Presidents having held the position thus far have made their contributions in their own way for the welfare and benefit not only of the membership but also for the country at large, at times on an international scale.
The BASL has branch associations right round the country, the largest one numerically and otherwise being the Colombo Law Society. In these branches, too, elections are by ballot. Incidentally, this writer happened to be the first to challenge such election results in a court of law, long years ago.
The constitution of the BASL provides that its President and Secretary shall be elected annually in the month of February by the secret ballot of its membership. There used to be a convention that once so elected, they were permitted to be re-elected for the following year uncontested. However, this convention has been breached on more than one occasion in the recent past.
This writer is an Attorney-at-Law

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Lawnet

The Lawnet website of the Ministry of Justice will be launched tomorrow by Chief Justice Sarath N. Silva, P.C, who was instrumental in initiating this project. The Lawnet, constructed under the Legal and Judicial Reforms Project funded by the World Bank will be a useful source of legal information, especially to practitioners of law, academics and students. The website will contain, among other information, New Law Reports, Sri Lanka Law Reports, unreported judgments, legislation and lists of cases both in the Supreme Court and the Court of Appeal. The latter facility will be useful to lawyers and litigants alike to check whether a particular case is being taken up on a given day.

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Promotion to Court of Appeal

Judge of the Commercial High Court, A. W. A Salam will next week be appointed to the Court of Appeal. Mr. Salam was at one time the Secretary to the Judicial Services Commission. High Court Judge Ms. Rohini Welgama is expected to fill Mr. Salam’s vacancy in the Commercial High Court.