Introduction-Media and Equal access to justice
THE DAILY NEWS Legal Aid Page will complete its first anniversary on
13th of January 2007. As country's only statutory legal aid provider,
Legal Aid Commission (Law No. 27 of 1978) would like to thank in advance
the Editor, Ceylon Daily News on whose initiative the Page was started
and Chairman and the Board of Directors of ANCL for the support given to
sustain the 53 issues of the page.
Thousands of letters received from the public seeking advice to their
legal problems is testimony to the public service rendered jointly by
the Ceylon Daily News and the Legal Aid Commission through the Legal Aid
Page.
The media is the most important medium of legal education of the
public in Sri Lanka. The Sri Lanka Law College and Law Faculties of
several Universities train lawyers and legal academics. But in a country
where the Rule of Law is expected to prevail the general public who
encounter legal issues from birth to death should have a modicum of
general legal awareness.
The best way to start this process is to introduce legal studies as a
subject in the school curricular. The LAC has developed a dialogue on
this issue with the Minister of Education who himself is a respected
lawyer. But the recent decision to shunt out Non-Governmental
Organizations from providing legal awareness in schools is a
retrogressive step in the wrong direction.
Even though, the LAC is an independent Commission supported by the
Government and the Bar Association and exempted from the new circular,
the LAC has to express concern on behalf of the Non-Governmental legal
aid providers.
The widespread legal illiteracy of the general public is heightened
by the equal ignorance of grass root officials. Grama Niladharis,
Samurdhi Niladharis or even members of the Mediation Boards who are
expected to be better informed.
Grama Niladharis who are service providers to Mediation boards
received copies of relevant enactments for the first time in their lives
during the three day training programmes jointly conducted by the LAC
and ADRI. 98% of 2,500 Grama Niladharis who have been trained have never
seen the basic law of the country, the 1978 Constitution.
Whatever the legal knowledge they have acquired had been through the
print and electronic media and the country owes a debt of gratitude to
the media.
It is also the media that acts as sentinels of justice and highlights
when unequal and discriminatory practices victimize the poor. The
effects may be marginal but an absence of responsible media scrutiny
would make matters worse.
Compared to some countries in South Asian countries, Sri Lanka has
managed to maintain a certain level of credibility in administering
justice. A major part of the credit should go to the ever vigilant media
of the country. But the media should exercise the sentinel function with
a great sense of responsibility.
Note:
The Daily News Legal Aid Page will celebrate its first anniversary on
January 13. Your views and suggestions are warmly welcome.
S. S. Wijeratne
Developmental legal desk 4 School Programmes Desk
The primary objective of this Development Legal Aid Desk would be to
promote legal literacy in school in coordination with the Ministry of
Education. Several surveys conducted by the LAC have revealed that there
is widespread agreement for the inclusion of basic principles of law in
the school curricular.
The current legal illiteracy rate of the society could only be
remedied through legal awareness programmes linked to the education
system and the publication of legal literature by way of booklets and
pamphlets.
The School Programmes Desk is headed by Yamuna Kumari, AAL who is
making arrangements to hold the prize-giving for the National Eassy
Competition on the subject of "The Human Rights and Duties".
The essay competition was jointly arranged with the LAC and the
Ministry of Education in Sinhala, Tamil and English medium. The
objective of the essay competition was to emphasize the need to respect
duties as well as rights.
SEMINAR: Mr. Kandasamy, Coordinator of the Legal Aid Centre for
Batticaloa addressing a seminar held for Public Officers at the
Public Library in Batticaloa.
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The LAC in coordination with the Principals of relevant Schools have
commenced forming "Law Circles" from among the interested senior
students.
The objective of school law circles is to provide a distribution
point for legal literature and arranging discussions on legal subjects
of general interests. Law Circles have been established in schools in
Anuradhapura, Alawwa, Kandy, Matara, Hakmana, Ratnapura and the
Kurunegala educational zones. For further information, please contact:
Yamuna Kumari, AAL
Head of School Programs Desk
Legal Aid Commission
129, High Court Complex
Hulftsdrop Street
Colombo 12
Tel. No. 5335281
Questions and Answers
Victims of crime
Question: What are the rights of victims of crime?
S. Sufiyan, Mattakkuliya.
Answer: Maintaining law and order in a society is the primary
obligation of a State. When a crime is committed, it is that the State
has failed to discharge its duties effectively. In that context the
responsibility of a victim should be with the State. The rights of
victims of crime are -
* Right to be treated with fairness, compassion and with respect for
the victim's dignity and privacy.
* Right to be treated in response to age, gender, language, ethnicity,
etc.
* Right for compensation and restitution.
* Right to demand a fair and speedy trial to punish the offender and to
obtain redress.
* Right to be protected from intimidation of perpetrators.
* Right for information.
* Right to be heard.
* Right to offer information.
* Right to be present at all public court proceedings.
* Right for legal, socio-medical assistance.
* Right to privacy.
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Who is responsible for the filing of a testamentary case?
Question: If a person had died without leaving a Last Will,
how can the family members acquire his property? Further if such
person's wife or husband is not alive, who is responsible for the filing
of the testamentary case?
M. Murugesu, Kotahena.
Answer: Under Section 525 of the Civil Procedure Code, when
any person shall die in Sri Lanka without leaving a Last Will, it shall
be the duty of the widow, widower, or next of kin of such person, if
such person shall have left property in Sri Lanka amounting to or
exceeding in value of Rs. 500,000, within one month of the date of his
death to report such death to the District Court of the district in
which he shall have so died, and at the same time to make oath or
affirmation or produce an affidavit verifying the time and place of such
death and stating if such is the fact, that the intestate has left
property within the jurisdiction of that or any other, and in that event
what Court, and the nature and value of such property.
The next of kin means, wife/husband or children of the deceased
person. If the deceased has no children or the children are not alive,
the parents of the deceased, if not his brothers and sisters can file a
testamentary case to acquire his property.
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How to file testamentary - Last Will cannot be traced
Question: My father died three weeks ago. I understand that he
has left a Last Will. However, I cannot find his Last Will. The value of
his property exceeds Rs. 500,000. What shall I do?
S. Peter, Kotte.
Answer: If you had come to know that your father had left a
Last Will, you should first search his personal documents. Normally if a
person writes a Last Will, the original of the Last Will will be in his
custody and a copy will be with his lawyer or the notary and it is the
duty of the lawyer or notary to submit the Last Will to court after the
person's death. If not, you have to ask your father's close friends
whether they have signed as witnesses to the Last Will.
According to your question you are unable to trace your father's Last
Will. In that case it is better to write a letter to the Registrar of
the District Court where your father's death took place explaining the
above reasons.
Thereafter you can proceed to file a testamentary case. You have to
follow the same procedure as to a person not leaving a Last Will. The
deceased's next of kin have the right to file a testamentary case within
one month of his date of death in the District Court of the district
where the deceased died. At the same time you have to file an affidavit
verifying the time and place of your father's death.
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Section 363 - Rape
Question: How do you define rape under the law?
A keen reader of the Daily News Legal Page from Moratuwa
Answer: According to the Penal Code and its amendments -
Section 363, a man who is said to have committed rape, if he has sexual
intercourse with a woman under following circumstances:-
(a) Without her consent even where such woman is his wife and she is
judicially separated from the man.
(b) With her consent, when consent has been obtained by use of force
or threat or intimidation or by putting her in fear of death or of hurt
or while she was in unlawful detention.
(c) With her consent when her consent has been obtained at a time
when she was of unsound mind or was in a state of intoxication, induced
by alcohol or drugs administered to her by the man or by some other
person.
(d) With her consent when the man knows that he is not her husband
and that her consent is given because he believed that he is another man
to whom she is or believed herself to be legally married.
(e) With or without her consent when she is less than 16 years of age
unless the woman is his wife who is over 12 years of age and is
judicially separated from the man. * Penetration is sufficient to
constitute sexual intercourse in offences of rape.
* Evidence of resistance such as physical injuries to the body is not
essential to prove that sexual intercourse took place without consent.
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Pension No. 36565
Question: I married my late husband in January 1983. He was
pensioner then. He passed away in November 2002.
I wrote a letter in February 2003 to the Pension's Office in
Thimbirigasyaya requesting that my late husband's pension be paid to me.
My late husband was married earlier but that wife died in 1980 and we
got married in 1983. I submitted a copy of the Death Certificate and a
copy of our Marriage Certificate.
I was informed by a letter written by the Divisional Secretariat,
Thimbirigasyaya, that I am not entitled to my late husband's pension
since he married me when he was already a pensioner.
I don't have any children and I am living alone. Since the cost of
living is very high and I am now in need of medication for various
ailments. I shall thank you to help me to get this pension through your
kind intervention.
Mrs. L. R. Amarasekara, Mt. Lavnia.
Answer: Under the Pension Minutes and Circular, if the
pensioner has married after getting his pension, the spouse is not
entitled to his pension. However we forwarded your question to the
Pension Department and they too is also of the same view.
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Documents to be submitted to the Pension Department by an unmarried
person
Question: I am an unmarried person. I am due to go on pension.
What are the documents I should submit to the Pension Department?
George Fernando, Chilaw.
Answer: The duly filled application issued by the Government
Department together with the Affidavit stating that you are unmarried,
your Bank Account No. and Bank Voucher and the letter informing that you
are due to go on pension. The other relevant documents will be submitted
to the Pension Department direct by the Head of your Department.
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Re: W & OP Fund
Question: I am an unmarried teacher receiving a pension.
During my period of service as a Government teacher, I contributed to
the W & OP Fund. How can I obtain the said benefit?
W. Wimala, Gampola.
Answer: You have mentioned that you are already getting a
pension. If you are still unmarried, you can get your W & OP Funds.
You have to write a letter to the Secretary of the Accounts Branch,
Widows and Orphans Pension Branch, Pension Department, Maligawatte,
Colombo 12 explaining that you are unmarried and that you would like to
get the W & OP Funds.
In this regard we advise you to send a letter by registered post and
to keep the postal article receipt safely in your custody. In the event
of a delay in receiving a response from the Pension Department, you can
submit the registered postal article receipt.
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Is it necessary to put the arbitration clause in the agreement?
Question: I have decided to start a business with a foreign
company. We have already drafted the our agreement. But we never
included the arbitration clause in our agreement. I want to know whether
it is necessary to include the arbitration clause before the parties
sign the agreement.
If the agreement does not include the arbitration clause, can the two
parties resolve the dispute through arbitration. What is the legal
validity?
Tushantha, Negombo.
Answer: If you want to resolve your dispute through
arbitration you have to include the arbitration clause in your
agreement. The arbitration clause is mentioned in Section 5 -
Arbitration Act No. 11 of 1995. Otherwise when the dispute arises both
parties can enter a sub agreement to resolve the dispute through
arbitration. Nevertheless you have to seek remedy in the court
procedure.
In the case of business with the foreign company it is advisable to
include the arbitration clause, because the arbitration award is
enforceable internationally.
Legal Events
January 8 - Police Training Programme at Panadura
January 11 - LAC Annual Planning Meeting in Colombo
January 13 - Opening 34th LAC Centre in Horana
January 20 - Bench and Bar Programme in Nuwara Eliya
Disclaimer
The answers to the questions are the legal views of individual
lawyers and the Legal Aide Commission only compiles them or the Daily
News Legal Aid Page.
Please send in your questions in brief to -
The Chairman,
Legal Aid Commission,
129, High Court Complex,
Hulftsdrop Street,
Colombo 12.
Email: [email protected] |