Introduction - Justice for Judges

Sri Lanka has a proud Judicial heritage. The Apex Court, the Supreme Court was established over two hundred years ago. Despite the vagaries of colonialism and subsequent party political upheavals, the court had maintained its independence and integrity.

Eventhough, a former Head of State made allusions of corruption against a Judge, all the Superior Court Judges requested to identify the truant Judge so that all their names were not sullied. There was no executive response. Unsubstantiated allegations, if openly made against the Judiciary the court under its contempt jurisdiction can deal with such unwarranted criticisms as was done in a few recent cases.

Judges do not indulge in punishing intemperate and disparaging critics out of personal vendetta but in order to maintain the dignity and independence of the Judiciary as a whole. However, the most malicious criticism against Judges are not made in the wells of the court but outside, mostly by way of corridor rumours.

Judges who are active on the Bench and who are courageous to hand down judgements according to Law but against the popular visions of the issues may become extremely unpopular which they will feel only when they retire. The Judges who work towards post retirement popularity may be constrained in delivering equal justice.

Another reason why Judges should not be criticized for their Judicial opinions is because Judges cannot respond or write letters to the popular media. They cannot send letters to the editors of Newspapers explaining the rationale of their Judgements.

As there would be two or more set of legal opinions, there is bound to be disputes relating to Judgements. The Judgements could be legally analysed and criticized for bona-fide reasons.

An eminent Judge of the Supreme Court of the USA, Anthony Kennedy, affirmed before the Congress, the rights of the law makers and academics to criticize judgements but not the Judiciary. In the USA such criticism is considered healthy for a vibrant democracy.

The right to criticize Judgements are rooted in the Law of dissent which is not extensively practised by Sri Lankan Judges. Dissenting Judicial thinking develops the Law. Dissenting Judges should not be marginalized or victimized as peer pressure is anathema to independence of the Judiciary.

The Judges are customarily vested with the privilege of Judicial strictures. The Judges when sitting on the Bench has complete powers over the persons sitting in the well of the Court. This is necessary to maintain the dignity of the Judicial process.

The Judges sometimes make disparaging and painful remarks about Counsel who persists with redundant arguments contrary to views and mood of the Judges. The Counsel, however, eminent will have to bear the castigations in silence. Lawyers' careers are made or destroyed sometimes by Judicial strictures.

The public and the Bar should refrain from indulging in creating courts rumours maligning the dignity of judges. Similarly Judges, eventhough empowered, should exercise the power of Judicial strictures judiciously.

- S.S. Wijeratne

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Questions and Answers

My neighbour is always quarrelling with me; Can I seek a remedy from the Mediation Board?

Q: My neighbour is always quarrelling with me due to a dispute regarding a fence. I made several complaints to the Grama Niladhari, but it has not been successful. I don't like to go to Courts. I heard that the Mediation Board could resolve disputes of this nature. Is it correct? How could I reach the Mediation Board? Please advice me.

T. Pathirana, Panadura.

A: Your matter can be referred to the Mediation Board. Mediation is a process of alternative dispute resolution in which a neutral third party, the Mediator, assists two or more parties in order to help them achieve an agreement with concrete effects, on a matter of common interest; any activity in which an agreement or whatever matter is researched by an impartial third party, usually a professional, in the common interest of the parties.

The intervention into a dispute or negotiation of an acceptable, impartial and neutral third party who has no authoritative decision making power, to assist contending parties to voluntarily to reach their own mutually acceptable settlement of issues in dispute.

Under the Mediation Board Act No. 72 of 1988 and the Mediation Board Act 2003, you can personally make an application to the Mediation Board. Your problem should be stated in brief. Your name and address together with the names and addresses of the party to the dispute should be mentioned. On receipt of your application, the Board will summon the parties for a discussion.

The police could also refer you to the Mediation Board. This happens when a complaint is made to the police and when the police feel that matter should be resolved by Mediation or according to the Law; it has to be referred to Mediation.

Passport for adopted children

Q: I adopted a child. I have a Court order. I now need to obtain a separate passport for him. How do I get a separate passport for him?

Suwini Perera, Nawalapitiya.

A: You can obtain a minor's passport for your adopted child or infant, if he or she is a Sri Lankan. The following documents are compulsory (in the case of adopted children) to obtain separate passports or get her/ his name in to the parents' passport.

* The Court order in respect of adoption of the child.

* Letter of conformation from the Probation Department.

* If he or she is in the previous parents' passport, the photocopy of such Passport is necessary together with their letter of consent. If not, photocopies of the parents' NIC should be attached.

* Duly completed form K and IM 35 (B)

* Birth Certificate of the child.

* Birth Certificate issued by the particular overseas Mission and the Birth Registration Certificate issued by the Department of Emigration and Immigration under Section 5 (2) of the Citizenship Act (if the child is born in a foreign country).

* If the Citizenship Certificate is not available, a copy of the receipt of the payment is also acceptable.

* The consent letter is compulsory from the parents declaring that they do not have objections to issue a separate passport to the child.

* Death Certificate if parents are dead.

* Divorced Certificate if parents are divorced.

* The Passports of the parents with photocopies of data page and the page assigned for inclusion of children's names and photographs.

* If parents do not possess Passports, an Affidavit should be produced declaring that they have not obtained Passports and NIC of the parents with photocopies.

* The national Identity Cards (with photocopies) of the parents if they have not obtained a Passport.

Can disabled child get the benefit of the W & OP?

Q: My father was a retired Government teacher. He had made contributions to the W & OP Fund. My mother predeceased him. He has two children (daughters) myself and my disabled sister. I am already married. My disabled sister is 27 years old now.

Please let me know whether under the Widows/ Widowers and Orphans Pension Scheme, my disabled sister could claim benefits from the said Fund?

Kumari Dodanlanda, Kandy.

A: Under the Widows/ Widowers and Orphans Pension, benefits can be claimed from the following persons:-

* Widow/ Widower where the spouse is dead.

* All male children under 21 years of age.

* All unmarried female children under 21 years of age.

* All unemployed male children over 21 years but less than 26 years of age.

* All unemployed and unmarried female children over 21 years but less than 26 years of age.

* Disabled Orphans above the age of 26 years decided by the Govt. Medical Board to be mentally and physically incapacitated to earn their livelihood.

According to your letter you have mentioned that you have a disabled sister. If he or she has a guardian or you are the guardian of your sister, can request the Pension Department grant the W & OP benefits to your disabled sister. You cannot claim that benefit because you are already married.

You or your disabled sister could request the Pension Department by letter stating the above reason and by submitting your sister's Birth Certificate (to prove that she is the daughter of your deceased father) and your father's Death Certificate. If you need further clarification you can call the Pension Department - Tel. No. 2431647.

Can Non Government Organisations file action on behalf of the aggrieved person?

Q: Please let me know whether under the Domestic Violence Act, Non-Government Organisations (NGOs) can file action on behalf of the aggrieved person?

Nimal, Colombo.

A: Under the Domestic Violence Act No. 34 of 2005, Non Government Organisations cannot file Domestic Violence action on behalf of the aggrieved person.

Only the following persons can file action under the Domestic Violence Act:-

(a) an aggrieved person;

(b) where the aggrieved person is a child, on behalf of such child by-

(i) a parent or guardian of the child;

(ii)a person with whom the child resides;

(iii) a person authorised in writing by the National Child Protection Authority established under the National Child Protection Authority Act, No. 50 of 1998; or by a police officer on behalf of an aggrieved person.

Can I get a refund of the cost of telegram sent abroad as the receiver has not received the same?

Q: I recently sent a telegram from the Ratmalana Post Office to my son-in-law in France. I got a receipt for same. However, my son had not received the telegram yet. The Post Master at Ratmalana, confirms that the telegram has been sent to the country mentioned above. The telegram cost me Rs. 179. Can I get a refund of the cost incurred by me and how could I get it?

Jayasinghe, Ratmalana.

A: You have to write a letter to the Superintendent of the Postal Department stating about your case with the necessary details including photocopy of the postal article receipt, giving your son-in-law's address in France. Kindly send your letter by registered post to:-

Divisional Superintendent of Post Offices Department of Posts Divisional Superintendent's Office

Borella, Colombo 8.

For further details, please call 2676484.

If your son-in-law- has not received the telegram, you could obtain the refund after following the above procedure.

Registration of a Death

Q: My mother was living with me in Anuradhapura for the last seven years and she died at my sister's place in Kesbewa. How can I obtain my mother's Death Certificate?

Jayalika Peiris, Anuradhapura.

A:You have not mentioned the cause of your mother's death. If your mother died at your sister's place, (in a Home) you have to first inform the Grama Niladhari of the area of death as early as possible. In your case, you have to meet the grama niladhari of Kesbewa.

After getting the Grama Niladhari's certificate, you should meet the Registrar of Death of the Divisional Secretary's Office of the locality where the death occurred. He will thereafter issue you with the Death Certificate of your mother.

The value of filing a testamentary case

Q: What is meant by testamentary action?

Dr. M. Gunarathna, Nawala.

A: Testamentary action would arise in a situation where a person has died intestate leaving property worth over Rs. 500,000 or where a person has died leaving a Last Will. The law relating to such actions in the Law of Executors and Administrators.

Such actions should be filed in the District Court with a reasonable time after the death of the person. The Civil Procedure Code regulates the procedure to be followed in testamentary actions.

Mediation Training for Grama Niladharies

Q: Does the Legal Aid programmes of your Organization include promoting Mediation?

J. de Silva, Arachchikattu.

A: Yes, Amicable mediation of disputes is considered world over as preferable to protracted expensive litigation which results in Winners and Losers with continuing enmity. The Legal Aid Commission (LAC) in coordination with Alternative Dispute Resolution Institute (ADRI) have trained 2017 Grama Niladharies (GNs) in mediation techniques for three days in all the tsunami affected areas with the support of the Asia Foundation and JAICA. GNs are the front line officials who receive complaints at the village level and have been settling disputes amicably for over five decades. A village leader acting as Mediator is a historical institution. Additionally Section 19 of Mediation Act No. 72 of 1988 and Section 22 of Mediation (Special Categories) Act No. 21 of 2003 entrust the supportive responsibility to GNs.

But until LAC/ADRI programmes, GNs were never been trained in mediation or rights based laws that are enacted during the last few years, such as Elders Laws, Child Protection Authority or the Consumer Protection Law of 2003.

Due to requests from GNs in Non-Tsunami areas, the LAC/ADRI Mediation training programme will now be extended to the balance 12000 GNs in the country.

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List of Developmental Legal Aid Desks in the Legal Aid Commission

Chairman - S.S. Wijeratne

01. Anti-Corruption Desk- Ms. Harshini Balaharuva, Ms. Yasodha Waidyaratne and Ms. Prasadi Navaratne, Legal Officers.

02. Apprentice Training Programme and Bench and Bar Desk- Ms. Damayanthi Dissanayake, AAL.

03. Child Rights' Desk- Ms. Mahesha de Silva and Udayangani Munasinghe, Legal Officers.

04. Consumer Protection Desk- Ms. Lasanthi Palapathwala, AAl.

05. Disabled Persons Desk and Elders' Right Desk- Ms. Pradeepa Nilmini, AAL.

06. Human Rights Bureau- Acting Head, Mr. Nuwan Peiris, AAL.

07. Internally Displaced Persons Desk- Kalani A. Medagoda, AAL.

08. Migrant Workers Desk- Ms. Lilanthi Kumari, AAL.

09. Prisons Desk- Ms. Thushari Sakuntala, AAL and Surangani Perera, Legal Officer.

10. Protection of Women's Rights Desk- Ms. Priyangika Aththanayake, Legal Officer.

11. Public Officers Awareness Desk- Mr. Reginold Kumarasiri, BA, MA, MSSC.

12. School Programme and Essay Competition- Ms. Yamuna Kumari and Ms. Sewwandi Abeysekera, Legal Officers.

13. Labour and Industrial Disputes Desk- Ms. Gayani Abeysinghe and Ms. Achchini Adhikari, Legal Officers.

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Disclaimer

The answers to questions are the legal views of individual lawyers and the Legal Aid Commission only compiles them for the Daily News Legal Aid Page. Send in your questions to:- The Daily News Legal Aid Page, Chairman, Legal Aid Commission, 129, Hulftsdorp Street, Colombo 12.

Email: [email protected]