Delayed Criminal Justice: Implement C.R. de Silva Recommendations

Induction ceremony: At the induction ceremony of the new President of the Bar Association of Sri Lanka, Nihal Jayamanne, PC., Chief Justice Sarath N. Silva reiterated his concern regarding continuous problems of delayed justice.

The Chief Justice sought the support of the politicians to enact the 18th Amendment to the Constitution whereby Provincial Courts of Appeal could be established to clear the backlog of some 12000 pending appeals. Parliamentarians who are interested in providing equal access to justice to all Sri Lankans should forget their political differences and unitedly endorse the 18th Amendment which has been pending for nearly one year.

Apart from the backlog of appeals, it is a well recognized fact that cases in original courts are unduly delayed, the National Center for the Victims of Crime (NCVC) carried out a survey and identified cases where victims of crime have to wait more than eight years for the conclusion of the trial against the perpetrators.

According to the UN Declaration of 1985 on Victims of Crime, one of the prior requirements is to expedite criminal trials so that victims who are witnesses do not have to hang around the courts for many years as witnesses. It has been pointed out in the C.R. de Silva report on 'Eradication of Laws Delays' dated April 2004, absence of witnesses as one of the many reasons why only little over 4% of the grave crime perpetrators end up getting punished.

This is attributed to witness apathy and absence. It is in this context, that a general demand has arisen from law abiding citizens that a Witness and Victims Protection Law, like in other countries should be enacted without further delay.

The C.R. de Silva Report on Eradication of Laws Delays recommended that victims and witnesses protection authority be established in the following words:-

"The Committee voices its grave concern over the growing reluctance of witnesses to identify and testify against offenders due to threats and various other forms of duress made against witnesses and their families. This is acknowledged as a key contributor to the failure of cases involving organized crime and highlights the need to implement special measures to enable vulnerable and intimidated witnesses to give their best evidence in criminal proceedings.

"In this regard the Committee proposes the establishment of a Victim and Witness Protection Authority analogous to the Child Protection Authority. It is suggested that such an Authority not be comprised solely of Police officials but be administered by a group of officers empowered to Counsel, protect and represent witnesses and their families".

In 2003, on a proposal from the Center for the Victims of Crime, a draft legislation on victims protection was finalized by the National Law Commission and forwarded to the Ministry of Justice for necessary action. However, due to usual bureaucratic delays no action had been taken upto date.

It is reported that a new initiative to have a comprehensive victims and witness protection law is under consideration by the National Law Commission. We hope that the proposed legislation would be placed before Parliament with the minimum of delay so that one of the serious lacunas in the Sri Lanka Criminal Justice System could be corrected.

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Questions and answers

Basic legal rights where elderly persons should be aware of

Question: I am an elderly pensioner living in my own house. One of my neighbours is threatening to encroach up on my land on one side. Last week he cut down the hedge that separated my land from his.

What rights can I exercise in this regard? Are there other rights that an elderly person should be especially aware of?

A Senior Citizen

Answer: You should object to any attempt of encroaching your land. This does not mean that you should pick a quarrel with your neighbour. It is necessary to get the help of the Grama Seva Niladhari or the police in this regard. Early attention to these matters will save you from taking the issue to courts. In a more general note there are certain things that an elderly person should take note of.

* If you wish to make an appeal against a decision of a land case you should notify court within 14 days of the said decision. There is nothing you can do after this period.

* You should never place your signature on a blank page. You should not sign a document without reading it. If you are unable to read you should get it explained to you.

* Keep a copy of all the documents you send to the officials.

* If you wish to donate your property to children you could keep life interest with you or you may keep the right to revoke the gifted property with you.

Mediation is quick and better solution than going to a court of law

Question: Is mediation different from litigation in a court of law?

Meyoni Shamila

Chilaw

Answer: Mediation is a method of resolving disputes without going to a court of law. It is a process that attempts to help parties understand their concerns and issues and resolve those in an amicable way that is acceptable to them. In mediation, there are no judges.

There are mediators who help parties to understand the real problems and find solutions that are acceptable by them. Being fair to both parties is one of the most important rules of mediation. They give parties enough opportunity to explain their problems and they must listen to parties and must not take sides. No one gives orders about who is right and who is wrong.

Mediation focuses on helping parties to reach a settlement that both parties like to accept. In a court of law the Judge presides and it is important to follow rules of procedure and evidence. Everything is decided according to the law. A Judge takes decisions and gives orders that must be complied with.

In mediation there are no rules or procedures or evidence. Mediation is fast and does not cost anything other than the Rs. 5 stamp that must be affixed to the application. Disputants do not need to retain lawyers. They will be helped by the Mediators. The Mediators are bound by Code of Conduct which has been approved by Parliament. It ensures that mediators act fairly and impartially.

Importance of first complaint

Question: How important is the first complaint made to the police in respect of a crime?

Answer: A police officer should receive information in order to start investigations into a crime. This is called the First Information. Having received such information the police will have to proceed according to the provisions of the Code of Criminal Procedure. Note that the First Information so received can be used by the prosecution to corroborate evidence in the course of the proceedings of case.

In proceedings before the High Court copies of the statements made to the police by witnesses are also given to the accused along with the charges. But in the Magistrate's Courts only the charges are made available to the accused. However, the Magistrates may, in the interests of justice, make the First Information available to the accused.

Question: What is an identification parade?

Hirantha Sanjeewa

Kapugoda

Answer: A Magistrate may order to hold an identification parade to assist an investigation. This is done where the witness states that the offender is unknown to him and that he can be identified if the witness gets a chance to see him. The parade is conducted in the Magistrate's Court in a closed room.

In a parade the ratio of offender to the others should be one is to five (1:5) That is if there is one suspect there should be five other persons (of the same class as himself) in the line. The suspects should be brought in to that room with their faces covered. The cover should be removed only in the room.

Go abroad without leave approval

Question: I have been working in the Sri Lanka Government Railways as a Station Master Class II and retired prematurely in 1991 under Circular No 4490 because I was frustrated. I joined the Railways as a S.M. Class II in 1967 and had a good record in service and in 1980 I went to Saudi Arabia for a foreign job applying for two years leave and I left before my leave is granted, but my head of Dept. did not approve the leave which is enjoyed by the other Government servants.

On arrival after two years working in Saudi Arabia, I found that I was treated that I vacated my post. I appealed for the Public Service Commission to get my job back. They called for an inquiry and gave me three punishments and gave me the job as a new entrant,

1. They treated me as new entrant curtailing my seniority.

2. They cut three salary increments which I earned.

3. They also treated the two year period as no pay.

I lost my seniority and I could not become a Class 1 S.M. because those who (juniors) joined after me will have to retire for me to get the promotion. That will never happened because they are younger to me. On that ground I retired at the age of 48. Please let me know whether I can get my seniority and salary adjusted for the service rendered.

J.G.J.P. Perera.

Answer: According to your letter you have gone abroad without a approval of the leave. You have had an opportunity to check whether your overseas leave was granted or not. If it was not granted you have no right to go abroad on two years non pay leave.

According to your letter on those grounds your post was not approved by the department.

Thereafter, you had made an application to the Public Service Commission and the Commission reinstated you in the same post and reduced your increments. Accordingly, your seniority has been reduced. Now you can see that you have been reinstated under the above conditions. That was the punishment given to you by the Commission.

Now you have been retired from the service under circular 44 of 1990 at the age 48 years. Therefore you have no legal right to get back your seniority as well as your increments which was cut down by the Department.

Rights of citizens

Question: We are senior citizens living in Havelock Town. The only safe places available to us for our recreation/walks are the grounds in the area. These have been leased out on long 99 year lease to two Cricket Clubs BRC & Colts CC. We believe for very nominal amounts.

For the last so many years, these grounds were available free of any charge to us for our recreation/walks. But since of late the club management is insisting that we pay and become members of the club. If not we cannot use the grounds.

We use the grounds just for about an hour in the morning/evening for a few days of the week and that too at times when the grounds are not been used by the cricketers. These regular walks are very necessary for us to maintain our health. Most of us live on our very meager pensions and just cannot afford to pay for recreation/walking.

Please let us know:-

As rate payers do we have any legal rights to use the park without paying membership fees? Can the Mayor of the CMC instruct/ request the Club Management to allow the use of the park for senior citizens without paying membership fees, just for their walking and only at times when games are not being played?

If the club refuses, can the CMC cancel the present lease agreement and enter into a new one, reserving the rights of the community to use the grounds for recreation at times when the parks are not being used for practice or matches?

The population in the area of the Div Sec Thimbirigasyaya is 264831. Of these 219280 are in the ages from 5 to 60 and another 22172 are over 60. At most, only about 200 to 300 are playing cricket for both clubs and all the playing needs of these cricketers could be readily met from one of the grounds leaving the other for the use of the people in the area specially the children and seniors.

If the Cricket Clubs do not have any sense of moral or social responsibility towards the community in the area, can the matter be taken up with the new Mayor and resolved?

A Senior Citizen

Answer: The Municipality may request the public lawn within the Municipality limit to be made accessible to the public.

However, it must be said that in respect to the club it has paid rent and they have control over the ground.

In the event that the Club charges fees for using grounds the public could be entitled to be expected standards and security while they are using the grounds. If any accident happens to the public as for a example a dog bite - then they can sue the Club for damages.

Deed misplaced. What can I do?

Question: My father who died in December 2005, had written a part of his land to me, and also some portions to my brother and sisters. My deed was with him, and I never asked him for the deed even though I knew that he was keeping the deed with him, because I felt that it was not a nice thing for a son to do.

But some time after his death I checked his room, but the deed was not there. Now my problem is to get the deed. The lawyer who made the deeds is also deceased. If the original deed is missing, tell me the way to get a copy. And even if I get a copy, is it valid as the original deed?

Lalith Wijeratne, Kiribathgoda

Answer: If you know the name of the Notary, who wrote the deed and the registration number of the deed you can make a search in the Land Registry and obtain a certified copy of the deed and the abstract, which shows that particular deed is registered or not.

If you know the address of the Attorney-at-Law, you can inquire about it from their relations and check the protocol of the deed. The normal procedure is after the death of the Attorney-at-Law, their relations has to hand over all the relevant photocopies and legal documents to the Land Registry.

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LAC headquarters

Colombo: Justice Hector Yapa - Legal Aid Commission,

No. 129, Hultsdorp, High Court Complex, Colombo 12.

Ms. Nelum Gamage Director Consultant - 2433618,5335281

1. Tsunami Regional Center

211, Superior Court Complex, Hulftsdorp Street, Colombo 12.

Ms. M.M. Piyumi Kumari, AAL, Coordinator

2. Welikada Jail - Legal Aid Desk

New centers established by LAC in 2006

Bandarawela: Ms. Anoma Atalugama - Court Complex,

AAL - Legal Officer - Bandarawela.

Matale: Mr. Jaliya Gooneratne - Court Complex, AAL -

Legal Officer - Matale.

Avissavella: Ms. Hiranthi Liyanage - Court Complex, AAL -

Legal Officer - Avissavella.

Ratnapura: Ms. R.M.I.R. Rajapakshe - Court Complex, AAL -

Director - Ratnapura.

Welikada Prison: Ms. Thusari Karunasinghe, AAL

co-ordinator,

Telephone: 5335329.

Assistants - Ms. K.V.M.P. de Silva, Ms. O.S. Perera.

Centres established by LAC before - 2006

01. Batticaloa - 300/1A, Bar Road, Batticaloa 065-2223567.

02. Anuradhapura - Court Complex, Anuradhapura,

025-2224465.

03. Kandy - New Court Complex, Gatambe, Peradeniya 081 - 2388978.

04. Kurunegala - Court Complex, Kurunegala, 037-2229641.

05. Galle - Court complex, Fort, Galle, 091-2226124.

06. Hambantota - Chief Ministers Office Complex, 047 -2221092.

07. Nuwara Eliya - Court Complex, Nuwara Eliya, 052-2235260.

08. Moneragala - Court Complex, Moneragala, 055 - 2276191.

09. Ampara - Curt Complex, Ampara, 063-2223496.

10. Kegalle - Court Complex, Kegalle, 035-223179.

11. Chilaw - Court Complex, Chilaw, 032-5672457.

12. Akkaraipattu - District Court Complex, Akaraipattu.

13. Balapitiya - No. 618, Walagedara, Balapitiya, 091-2255753.

14. Matara - No. 38. Lawyers Complex, Fort Matara, 041-2233815.

15. Vavuniya - Court Complex, Vavuniya, 024-2221899.

16. Trincomalee - Court Complex, Trincomalee, 026-222293

17. Kalmunai - Court Complex, Kalmunai, 067-2223710

18. Jaffna - District Court Complex, Jaffna.

19. Batticaloa - 300/1A, Bar Road, Batticaloa, 065-2223567.

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Legal Aid events

April 6 - Police training programme at Kurunegala.

April 7 - Elders Provincial Conference at Kurunegala.

April 22 - Tsunami Programme of Divisional Secretaries at Colombo.

April 29 - Police awareness programme at Negombo.

April 29 - Victims of crime training programme in Monaragala.