Introduction - 'Civil
society organisations' are the sinews of democracy
For the past few years and more virulent after the 2004 tsunami,
questions have been raised by vociferous sections of the political
spectrum about the conduct of Civil Society Organisations (CSO's) in
this country.
While many of the criticisms were politically motivated, a few
genuine queries relating to accountability and transparency of the CSO's
has been raised. The CSO's ventured in to rights based issues of
vulnerable groups who have escaped the attention of state apparatus or
called for transparency and accountability of state action. Hence
inevitable rhetorical questions were asked about 'who is guarding the
guardians?'.
There was no clear answer to this question which is asked in many
other countries. In Sri Lanka, no one has a comprehensive record of all
the functioning NGO's or after the Tsunami even INGO's operating in Sri
Lanka.
The laws under which voluntary organisations are registered are many
and some groups have not even registered and acquired status as a legal
persons.
One may argue that this is a positive indication of the vibrancy of
our civil society. Some may disagree with that assertions and argue that
litmus test of a genuine CSO's should be the service rendered to the
vulnerable groups and not to serve as mere means of livelihood to the
NGO creators and their kith and kin.
The existing laws under which NGO's are registered are many and
confusing. Some of them are:-
1. Voluntary Social Service Organisations (Registration and
Supervision) Act, No. 31 of 1980 and Amendment Act, No. 8 of 1998.
2. Companies Act, No. 17 of 1982, Section 21.
3. Special Acts of Parliament
4. Co-operative Societies Law of 1972.
5. Societies Ordinance of 1891, as amended.
6. Agrarian Development Act, No. 46 of 2000
7. Rural Development Societies
8. Protection of the Elders Rights Act No. 9 of 2000
9. Consumer Affairs Authority Act No. 9 of 2003
10. Trusts Ordinance
The compliance with reporting requirements under these existing laws
have been negligent. Only 1/3 of NGO's have met the reporting
requirements. Some of them have vanished from existence, perhaps waiting
for another disaster to resurface again.
These irresponsible groupings have brought a bad name to the devoted
and transparent CSO's in the country.
As a result of a public outcry few months after the Tsunami that some
of the NGO's and INGO's have failed to deliver the promised recovery and
rehabilitation programmes and the anecdotes relating to profligate
lifestyles, the Parliament appointed a Select Committee of Parliament to
investigate and report.
The process still continues and some of the local NGO's have been
summoned to give evidence much to their annoyance.
Meanwhile, the Cabinet authorised the Minister of Social Services and
Social Welfare to appoint a Voluntary Committee of inquiry including NGO
activists to propose amendments to Voluntary Social Service
Organisations (Registration And Supervision) Act No. 31 of 1980.
The Committee who had public sittings and obtained through IDLO
services of an expert from UK. The Charity Commission handed over its
report this week to the Minister. The core recommendations of the
Committee is to replace the existing 1980 Act with a comprehensive NGO
Act in keeping line with internationally accepted UK Charity Commission
Act with a Code of Conduct.
A strange situation that the Committee uncovered was that the
Parliament has incorporated 269 NGO's since 1979 and there exist no
mechanism to supervise these numerous statutory organisations.
It is difficult to call accountability, transparency and good
governance from Voluntary Organisations when Parliament has been
creating NGO's without a mechanism for supervision and monitoring.
"What you preach should be practised".
S.S. Wijeratne
Questions and answers
Obligations of judiciary towards victims of crime
Question: What is the obligation of judiciary and the
prosector towards victims of crime?
G. H. Malika,
Akkaraipattu.
Answer: Obligation of the judiciary:
* A victim friendly atmosphere should be created in court houses.
* Ensure in camera proceedings in trials related to child abuse and
sexual offences.
* Wherever possible secondary victimisation should be minimised. Very
often the victim is being harassed by counsel.
* The victim should be informed of the results of bail applications,
conviction, sentencing, imprisonment and the release of offender.
* The judiciary should grant relief wherever possible Victim Impact
Statements may be called if necessary.
* A speedy trial should be given without undue delay. (Cases are
postponed by years for various reasons nowadays).
If these are not adhered to, society loses faith in the judicial
system.
PROGRAMME: Justice Hector S Yapa, Director-General, Legal Aid
Commission addressing the Anti-Bribery and Corruption Programme
recently.
|
Obligation of prosecutor:
* The prosecutor should allow victim to be present at all public
court proceedings.
* He should assist the victim to claim compensation.
* Wherever necessary a victim impact statement should be obtained to
assist the court to grant compensation.
* Victims should be informed, when a Plea of Bargain is considered.
* Victims should be informed of their rights and duties as a witness.
* They should be notified about the progress of trial,
acquittal/discharge, conviction, sentence, of the accused.
Sexual harassment in workplaces
Question: Please let me know how the law defines 'sexual
harassment' and it punishment in the legal context?
Dhammika,
Mudunkatuwa.
Answer: Under the Penal Code and its Amendment in 1995,
'sexual harassment' is defined in Section 345 as follows:
"Whoever by assault or use of criminal force sexually harasses
another person or by the use of words or action, causes sexual annoyance
or harassment to such other person commits the offence of sexual
harassment."
Punishment-imprisonment may extend to 5 years, or fine or both and
compensation for victim. The legal remedy differs from the circumstances
of each case.
Bank should not cheat innocent customers
Question: My wife has gone to the Middle East. She sends
foreign currency for the family expenses. I went to a reputed bank to
ask them whether they could exchange it. I exchanged my foreign currency
through this bank and got Rs. 80,000.
I used this money to build a house for us. After a period of six
months I got a letter from the Manager of the said bank to meet him.
When I met the manager he informed me to pay back the Rs. 80,000 either
by mortgaging my house or by pawning my jewellery.
I am a poor person and I am very helpless. The bank is alleging that
I have given them forged currency notes.
Please advise me.
Jeewantha,
Kapugoda.
Answer: You are not bound to pay back the Rs. 80,000. It is
the responsibility of the said bank to check the foreign currency
carefully before exchanging it. Therefore, you are not bound to pay back
the money.
It is the negligence on the part of the Bank and as such do not sign
or enter into any agreement with the bank. If the bank staff is trying
to force you, please go to the police station and make a complaint. You
could also come and meet us at our Head Office at No. 129, High Court
Complex, Hulftsdorp Street, Colombo 12 and we are ready to assist you in
the matter.
Rules relating to 'crossings' on cheques
Question: I want to know the effect of crossing cheques. Could
you also explain to me the following types of crossing:
(a) General Crossing
(b) Special Crossing
I await your valuable reply through your Legal Aid Page. Your page
provides a great service to the country.
Mrs. D. Juriansz,
Borelesgamuwa.
Answer: The crossing on a Cheque is a directive to the paying
bank that the Cheque should be paid only to another bank. A bank can
ignore the crossing and pay a crossed Cheque over the counter.
However, if it later turns out that the person paid was not entitled
to receive that payment, the paying bank will be liable to the true
owner and will also forfeit the statutory protection of the Ordinance.
This is because payment of a Cheque in contravention of a crossing would
be regarded as negligence by the bank.
General Crossing
Where a Cheque bears across its face an addition of-
(a) the words "and Company" or any abbreviations thereof between two
parallel transverse lines, either with or without the words "not
negotiable"; or (b) two parallel lines simply, either with or without
words "not negotiable" - that addition constitutes a crossing and the
Cheque is generally crossed.
Special Crossing
Where a Cheque bears across its face an addition of the name of a
banker with or without the words, "not negotiable", that addition
constitutes a crossing, and the Cheque is crossed specially and to that
Banker.
Air Force pension query
Question: My son married in 1994 when he was attached to the
Sri Lanka Air Force. He died in 1995 while in action. At the time of his
death he had a 6 week old baby boy and his wife was nominated as next of
kin.
In the Year 2000 his wife remarried and migrated to Australia in 2005
for permanent residency with the child and her husband.
She has been drawing my late son's pension as wife of my late son to
date. Please clarify the legal position following:
1) Can she draw my late son's pension being remarried?
2) Is it legal for her to carry my son's surname being remarried?
3) Is she entitled for the benefits by the Air Force after
remarrying?
P.N. Balasuriya,
Makola
Answer: Under the Pension Minutes and Circulars, the next of
kin is the legal spouse and children.
1. She cannot draw your late son's pension after remarriage. But
under the Pension Minutes and Circulars there is provision to get the
minor's pension. If she is the legal guardian of the child, she can get
the minior's pension. If you know further details regarding the pension
you can make a complaint to the Pension's Department situated at
Maligawatte. Tel No. 2320435 or 2431647.
2. Anyone can use any name and you cannot challenge it.
3. According to Air Force procedure remarried widows are not entitled
for benefits. For any assistance in this regard, please call the Air
Force Headquarters on Tel No. 2320439.
Problem Re: Pension
Question: I am writing this letter solely to clarify a doubt
regarding a pension to a dependent. A relation of mine, a pensioner
retired some two years back. His wife was sick and died very recently.
His wife is having an unmarried sister who is solely dependent on
this pensioner for everything and at the same time she doesn't have
parents as well. She is availing herself of the facility of drawing the
food stamps for a long time.
Since she is unmarried and without parent to look after her except
for this pensioner, I want to know whether there is any provision for
her to draw the pension after the Pensioner's death. Soliciting an early
reply through your esteemed column please.
K. Sivanantham
Trincomalee
Answer: Under the Pension Minutes and Circular, once the
pensioner dies, if his wife and children are not getting or living to
receive the W and OP benefits, then automatically his pension ceases. It
is the duty of the relations to inform the Pension's Department and the
relevant Bank about the pensioner's death.Others cant claim someone
elses pention.
Family laws in Sri Lanka
Question: I am a keen reader of your Daily News Legal Aid Page. This
page provides useful articles as well as answers to legal questions
raised by individuals in different parts of the island. I would be very
grateful if you could let me known through your page the different types
of family laws in Sri Lanka and its requirements.
Keen Reader of Daily News Legal Aid Page
Answer: The body of law relating to marriage consists of the general
law, customary law and personal law. Tamils are governed by the general
law in most marriage-related matters, whereas Kandyan Sinhalese can
choose to be governed by the general law or their customary laws.
Muslims are governed by Muslim personal law.
The 1907 Marriage Registration Ordinance constitutes the general law
on marriage in Sri Lanka. The Ordinance applies to marriage between
Tamils and between individuals of differing ethnic and religious
communities.Kandyan Sinhalese may choose to be governed by the general
law or the Kandyan law. The Ordinance does not govern marriages
contracted between Muslims.
Requirements:
Pursuant to a 1995 amendment to the Ordinance, the minimum age of
marriage was raised to 18 for both men and women. A subsequent
provision, however, authorizes parents to consent to a marriage
involving a minor.
If a parent unreasonably withholds consent, a court may authorize the
marriage. Courts have held, however, that a parent's refusal to give
consent will only be overruled if the court is satisfied that the
refusal is without cause and contrary to the interest of the minor.
Despite the requirement of parental consent for a minor to marry, the
Ordinance provides that lack of proof of such consent does not render
invalid marriages registered under the Ordinance.
This exception does not apply to customary marriages because such
marriages would not have satisfied the registration requirement.
However, courts have held in cases of unregistered marriages as well
that want of consent would not invalidate such a marriage after it had
been consummated.
Couple eloped - can father file action against the son-in-law
Question: I had an affair. Both our parents disagreed to our affair.
So we eloped and got married legally. We are both over 18 ears of age.
However, her father made a complaint to the police and thereafter I was
arrested. I later got to know that her father is trying to file a case
against me. Can he do so?
P. Sunil
Wattegedera.
Answer: If both of your are over 18 years of age and legally
married, no one can separate both of you. If your wife's father is
trying to file a case against you, you can seek relief by filing a writ
application in the High Court where you are residing.
What is Incest?
Question: I have a relationship with my uncle's son and we
have decided to get married. Will this be construed as incest?
P. Marina
Koralawella.
Answer: Under the Penal Code and its Amendment in 1995, the
law defines incest as whoever has sexual intercourse with another who
stands towards him in following relationships:
(a) Directly descended, adoptive relationships.
(b) Sister by blood or adoption.
(c) Brother by blood or adoption.
The offence of incest shall not be affected or negated by reason of
legality of such relationships (absence of valid marriage or adoption)
Punishment
Rigorous imprisonment 7-20 years with fine.
* Attempt to commit incest-2 years
* Written sanction of the Attorney-General is necessary for
prosecution.
Can you divorce without going to courts
Question: I have got registered (Marriage), now lasting for
around 10 months. We want to know what are the possibilities for us to
get a divorce, without going to courts. Both of us are in an agreement
and will not challenge each other in this matter. We do not want to go
to courts.
Is this possible?
How can we do it?
How much time will it take?
Thank you very much for your
valuable service.
G. Gunaratne
Kotte.
Answer: Under the Marriage Registration Ordinance 1907 and its
Amendments, if you want to get a divorce, you have to fulfill one of the
following three grounds.
(a) adultery
(b) incurable impotency at the time of marriage
(c) desertion.
Without going to courts, you cannot get a divorce. You have to file a
case in courts where one of the parties resides. During the court
proceedings, you can seek relief on the ground of desertion. If you need
further information, you can visit any one of our Legal Aid Centers
islandwide and get free legal advice regarding your problem.
Developmental Legal Desk 10
Womens' Rights Desk
The women in our present society are often subjected to cruelty and
violence, both at home ad outside home. Women often become victims of
violence and abuse in their own homes.
The Legal Aid Commission has set up a Women's Right Unit to safeguard
the rights of women. The objectives of this unit:
* To make women aware of their rights by conducting workshops, talks
and also distributing leaflets and publications dealing in Women's
Rights.
* To carry out a statistical study on domestic violence, maintenance
and divorce cases
* To assist the migrant workers unit by taking follow-up action
relating to would be migrant workers who attend the training sessions at
the FEB Centers.
* To give counselling.
* To organise programmes to commemorate International Women's Day on
March 8. The Women's Rights Desk is headed by Priyangika Attanayake,
Attorney-at-Law who has conducted several awareness programme for women. |