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Legal Aid Page(In Association with Legal Aid Commission of Sri Lanka) Introduction: Why legal aid?by S. S. Wijeratne, BA, LLB Attorney-at-Law, MCCThe motto of the Legal Aid Foundation of the Bar Association of Sri Lanka is "Work for Justice, peace will Result." For the past ten years the LAF has worked actively to realize this vision. There have been ups and downs, not due to lack of commitment of legal aid lawyers but due to lack of funds. It is n this context that the Legal Aid Foundation thought of commemorating the 10th anniversary by publishing the first book on "Legal Aid in Sri Lanka". It is a modest attempt at widening access to justice to the poor in this country. We are told that we are all equal before the law. The portals of justice, like the doors of any five star hotel in Sri Lanka, are equally open to every Sri Lankan. Our basic law, the Constitution, has guaranteed equality before the law. The Supreme Court of Sri Lanka is inundated with Fundamental Rights applications from those who complain of unequal treatment. The cases range from school admissions to diplomatic appointments. For a curious tourist who cares to read our newspapers, Sri Lanka resembles not only a paradise in the sun but a Shangrila of justice. If we compare ourselves with many of the failed states or authoritarian states in the world, our system of justice stands out. Justice, like many other desirable goods and services in the globalized world, is not free. Hence, it is only in theory that it is equally available. If a justice seeker is too poor to pay the lawyer's fees, there is little that even an independent judiciary could do about it. The Judges could do justice according to law and not of wealth only once a case is brought before them. The poor and the underprivileged do not have the means even to take their grievances before courts. Unless this anomaly is rectified, the Rule of law cannot be set to prevail in a society. ---------------------------------------------------------------- Victims of crimeQuestion: I got married on a proposal and we have two children. A five year old daughter and a two year old son. My husband is a clerk in a private firm. From the day I got married to him he has been harassing me and for the sake of having a married life I have been living with him. The house we are living was given to me by my parents and now he is pestering me to sell it. He is a drug addict and spends all the money on this habit. He doesn't maintain me and my children and it is only with the support of my parents that. I and my children are surviving. I was hospitalized several times and twice I complained to the police and he promised not to hit me again at the police station but in fact became more violent after that. Please help me to get over this situation. Manel, Nugegoda Answer: There are ample legal remedies for your problem, first you must have confidence to take action to prevent the violence your husband is doing against you and your children. According to your explanation, you have already taken some action like making a complaint to the police, but this has had no effect and no change has been visible on his part. Now there is a new law to prevent this kind of domestic violence. In this law you, either by yourself or through the police can go to the Magistrates Court and file an application against your husband to stop his violence. If the Magistrate is satisfied with your application in the first instance and Interim protection order preventing violence will be issued and after 14 days, an inquiry will be held and after careful examination of the evidence the Magistrate can extend the order up to one year. The purpose of issuing this order is to prevent your husband coming to your house but he cannot shy away from maintaining you and your children and fulfilling his other responsibilities he was doing. In the meantime both you and your husband can be directed to counselling by the courts and there will be an appointed team by the court to observe whether your husband complies with the order. I hope you may have got the idea as to what kind of action you can take and if you are not willing to go to the police, you can get free legal aid from us and if so, please contact or come and meet one of our lawyers. Tel: 011 2 391777, National Centre for Victims of Crime, No 211, Superior Court Complex, Hulftsdorp, Colombo 12. ---------------------------------------------------------------- The need for legal aidQuestion: There is a statement that "ignorance of law is no excuse". But most of the people don't know the law. We have no access to learn the law. Don't you think that it is your responsibility to make us aware? Ruchira Weerakkody, University of Kelaniya. Answer: Your suggestion to introduce basic legal education as a subject in schools is very valid and timely. The Legal Aid Commission and the National Centre of Victims of Crime (NCVC) conducted several surveys among the Grama Niladharies, Police and schoolchildren where an overwhelming proportion (over 95%) wanted basic Principles of Law to be added to the school curriculum as an optional subject. In our surveys of Grama Niladharies, (GNs) to our surprise, we found that over 98% of the GNs had not even seen a copy of the basic law of the country, the 1978 Constitution. This is indeed pathetic as GNs are the law enforcement officials and advisors at the village level. The GNs perform different duties under 44 Legislative Enactments. But they have never received any training in laws or provided with the necessary enactments. The Legal Aid Commission will propose to the government to introduce law as a subject in schools. ---------------------------------------------------------------- Grama NiladhariesQuestion: I am a Grama Niladhari from the Akkaraipattu Division. My colleagues worked day and night to save lives during the Tsunami disaster. One of our colleagues was washed away with his wife and the daughter. We participated in the excellent legal awareness and mediation-training programme conducted by the Legal Aid Commission and ADRI, where we learnt that Grama Niladhari posts were created by a mere Cabinet Paper in 1963 and that we are not governed by any statutes. Will hope that the Legal Aid Commission propose to the Government to rectify this omission even belatedly as we feel very insecure in our service. K. Kariyappa/ Akkaraipattu Answer: Yes, there is no Act governing the service conditions of the Grama Niladharis. The Legal Aid Commission will definitely propose to the Ministry of Public Administration to take steps to rectify this omission. Meanwhile, your GN conference should also raise this issue with the government. ---------------------------------------------------------------- Land issuesQuestion: Your question relates to the chain of the pedigree under the common law. Asantha Fernando, Kakkapalliya Answer: A Pedigree is a chain in which the relevant details of an abstract of title is summarized. If the property is gained by intestate succession the portion of property gained by inheritance differs according to the law the deceased was governed. (Kandyan law, Thesavalamai Law, Muslim law.) If the deceased was governed by common law the manner of the property is divided as follows. If the deceased was married half of the property would be granted to the spouse and the other half would be equally divided among his children. If they haven't any children half to the spouse and the other half to parents of the deceased in equal shares. If the parents are not alive equal shares to the deceased brothers and sisters. If only one parent is living half of half would be granted to the living parent and other half of half would be granted to the brothers and sisters of the deceased equally. If the deceased is a divorcee half goes to the children if the children are alive and the balance goes to the parents equally or if one parent is alive half of half goes to the living parent and the balance goes to the brothers and sisters equally. ---------------------------------------------------------------- DivorceQuestion: I am living abroad and my wife lives in Sri Lanka. Recently when I returned home I discussed the subject of divorce with my wife. She vehemently protested saying that she would never give her consent. Since I am gainfully employed abroad I have no intention of coming back soon. As such I wish to know whether I could file an action for divorce without my being physically present in Sri Lanka. Please advise me whether it is possible to retain a lawyer in Sri Lanka and proceed with divorce action. I am agreeable to pay maintenance or a lump sump as compensation. N. Dias, Panadura Answer: I read your letter very carefully and I advise you that there is no grounds for divorce action. If you want to file a divorce action, you should have one or more of the following grounds. In terms of section 19 (2) of the Marriage Registration Ordinance, No 19 of 1907, as amended, a marriage can be dissolved only on one or more of the following grounds; * Adultery subsequent to marriage, * Malicious desertion, * Incurable impotency at the time of such marriage, According to your letter you have gone abroad only for the purpose of employment. Therefore, you are not entitled to get a divorce on that basis. Anyhow if you have any of the above grounds you can file for divorce in Sri Lanka. But you have to be physically present here. A person has no right to get a divorce without informing the other party. When a divorce action is filed the other party is summoned to appear in court; if he does not appear the case is heard ex-parte and judgment and decree is entered. ---------------------------------------------------------------- Mediation BoardQuestion: According to the deed and plan of my property I should have a ten feet wide roadway but actually my road has been encroached upon by my neighbour. At a certain point of my road I have only less than eight feet. I have made a complaint to the police but there is no redress. I don't like to go to courts. So what shall I do? Kamala Piyaseeli, Gampaha Answer:We have a mechanism to resolve such disputes without going to courts. Have you ever heard of the Mediation Board? It's a mechanism for disputes resolution. It's a new trend of resolving disputes without making the two parties permanent enemies. The mediators are the natural third party persons who help to resolve the dispute. Under the Mediation Board Act you can make an application to the Mediation Board yourself. The application can be prepared by yourself. You must state what your problem is very briefly giving your name and address and giving the name and address of the other party to the dispute. The Board will then call all of you for a discussion. The police may also refer you to mediation. This happens when you go to the police and they feel that it is a matter which should be resolved by mediation or where, according to the law it has to be referred to mediation. The court may refer your case to the Mediation Board if both parties agree to have it so referred. This is permitted under the law. ---------------------------------------------------------------- Termination of employmentQuestion: I was employed by a private firm. I got late several times to report to work. I was sacked for this reason. I want to know whether the employer can terminate my services without giving me such notice? M. Fernando, Mahawewa Answer: The employer is entitled to serve notices of termination to an employee on following grounds. * Disciplinary termination * Constructive termination * Non-disciplinary termination You have mentioned that you sometimes got late to report at the place of work. So the employer can take disciplinary action against you under the category of disciplinary termination. Disciplinary termination occurs mostly where the employer terminates the employee on the grounds of misconduct. There are different categories of misconduct. The list is not exhaustive, and is only a guidance. * Absence * Late attendance * Gross negligence amounting to misconduct * Insubordination * Abuse and unruly behaviour * Dishonesty * Intoxication whilst at work * Theft As we mentioned earlier late attendance can be dealt with under the area of termination on the grounds of misconduct. Late attendance would have to be habitual. The courts have said that if you have been warned and you continue to do it you can be terminated. There is no local authority for this, but it has been held in an Indian case. Tobacco Manufacturing Co. India (Ltd) Vs Cigarette Factory Workers Union. The law relating to termination in Sri Lanka is found in Industrial Disputes Act and Termination of Employment Act. ---------------------------------------------------------------- Migrant workersQuestion: I left for the Middle East in 2005 for employment through a registered agency. When I left, I signed a service agreement for a two year contract. But the employer maliciously terminated my employment. I have spent over Rs. 75,000 for my travelling expenses. Is there any legal remedy for me?Please advise. Sarath Perera, Kurunegala Answer: First, you can make a complaint with the Sri Lanka Foreign Employment Bureau. If they offer no settlement you can file action for money recovery in the District Court. If you need any further assistance, can come to the Legal Aid Migrant Workers Unit in Colombo. ---------------------------------------------------------------- Legal Aid Commission centres in Sri Lanka1. Colombo 2433618, 5335281 2. Anuradhapura 025-2224465 3. Kandy 081-2388978 4. Kurunegala 037-2229641 5. Galle 091-2226124 6. Hambantota 047-2221092 7. Nuwara Eliya 052-2235260 8. Moneragala 055-2276191 9. Ampara 063-2223496 10. Kegalle 035-2231790 11. Chilaw 032-5672457 12. Akkaraipattu 13. Balapitiya 091-2255753 14. Matara 041-2233815 15. Vavunia 024-2221899 16. Trincomalee 026-222293 17. Kalmunai 067-2223710 18. Jaffna 19. Ratnapura 20. Batticaloa 065-2223567 ------------------------------------------------------- Legal Aid events February3rd, 4th, 5th February- Mediation training programme in Matara and Devundara 11th February - Arbitration and mediation training in Kurunegala. 12th February - Police training in Galle on Victims of Crime. 14th February - Awareness programme for Grama Niladari at Polonnaruwa District. 16th February - Elders awareness programme and Legal Aid Clinic at Narammala 18th February - Mediators Conference at Colombo 19th February - Lawyers Training in Kegalle 23-24th February - Training of sentinels corruption in Colombo March 3rd March - Colombo District Grama Niladari Training Programme in Maharagama 8th March - International Women's Day. 15th March - World Consumers Day. ----------------------------------------------------------- Senior Advisory panel of the Legal Aid Commission Mr. H. L. De Silva (PC), Mr. Daya Perera (PC), Mr. Jayantha de Z. Gunasekara (PC), Mr. L. C. Seneviratne (PC), Mr. Ikram Mohomed (PC), Ms. Maureen Seneviratne (PC), Mr. Ananda Wijesekara (PC), Mr. Upawansa Yapa (PC), Mr. A. L. M. Hushim (PC), Mr. Romesh De Silva (PC), Mr. Varuna Basnayake (PC), Mr. S. S. Sahabandu (PC), Mr. Andy Silva (PC), Mr. M. S. Aziz (PC), Mr. D. P. Mendis (PC), Mr. G. Nihal Fernando (PC), Mr. T. K. Walaliyadda (PC), Mr. Mohan Peiris (PC), Mr. Faiz Mushthapha (PC), Mr. R. I. Obeysekara (PC), Mr. Nigel Hatch (PC). ------------------------------------------------------ Disclaimer The answers to the questions are the legal views of individual lawyers and the Legal aid Commission only compiled them for the Daily News Legal Aid page. Send your questions to: Daily News Legal Aid page, Chairman, Legal Aid Commission, No. 129, Hulftsdorp Street, Colombo 12. E-mail - [email protected] or [email protected] Website - www.lawaid.org |
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