Introduction - Witness and victims protection

The Presidential Commission of Inquiry into serious Violations of Human Rights has announced to the public, the victims and to potential witnesses the availability of witness and victims protection for the first time in Sri Lanka.

The violations of Human Rights including the killing of 17 aid workers of the International Governmental Organization Action Contre Law Faim, in early August 2006 and the killing of 10 Muslim villagers at Radella in the Pottuvil police area on 17th September 2006 are unresolved and have attracted national and international attention.

They remain unresolved crimes because of the reluctance of the witnesses to come forward to give evidence and identify the perpetrators to be brought before the courts of justice.

Sri Lanka despite its committed effort of the National Centre for Victims of Crime (NCVC) since 2002 does not still have a victims and witness protection law.

The NCVC established in 2002 on a suggestion made by Chief Justice Sarath N Silva, PC has implemented specific awareness programmes to various stakeholders in the Criminal Justice System. During the past five years the programmes emphasized the need to formulate legislation to establish a victims and witnesses protection law in this country.

Important segments of the Criminal Justice System the Judges, i.e. the prosecutors from the attorney-Generals Department and the police have participated in legal awareness programmes with enthusiasm and all supported the need for legislation based on the principles contained in 1985 UN Declaration of Victims of Crime and Abuse of Power.

The NCVC chaired by the Chief Justice consists of Attorney-General, Secretary Justice, President of the Bar Association, Chairman, Legal Aid Commission, Professor of Forensic Science and Senior Legal experts in criminal law.

In 2002 a draft victims and witnesses protection law prepared by a former Legal Draftsman referred to the National Law Commission under the Chairmanship of Justice A. R. B. Amarasinghe. After weeks of deliberation of the NLC the draft was approved and referred to the Ministry of Justice for necessary follow-up action.

In 2005, a new National Law Commission decided to re-invent the wheel and with donor funding, commissioned an NGO to undertake another study and come out with yet another draft. The final version of the draft is yet to be completed. NCVC presided by Chief Justice considered new draft and approved it in principle few months ago.

The drafting of Company Law No. 7 of 2007 took 15 years. The finalization of victims and witnesses protection legislation has taken over five years but the country is still to receive the final result.

Meanwhile, the victims of escalating crime, serious human rights violations and mega corruption live in silence without legal redress. The conviction rate for crimes hovers around the now famous 4% as most of the crimes are unresolved or the suspects are discharged for lack of evidence in a fearful atmosphere.

As for the Human Rights situation the number of Fundamental Rights Violation cases filed before the Supreme Court has been drastically reduced in 2006 compared with the previous years indicating either a reduction on FR violations in the country or the difficulties faced by the victims of rights violations to come before the Supreme Court.

One difficulty is the fear of reprisals from perpetrators. Victims Protection Law would have made threats from perpetrators and associates a criminal offence.

Pending the elusive legislation to come into place, the NCVC have convinced the Police Department to send circularise to all police stations providing basic guidelines in victim’s protection. The NCVC has also entered into a Memorandum of Understanding with the Legal Aid Commission to provide free legal assistance to victims as aggrieved parties.

Sri Lanka is perpetrating a criminal justice system where a rape victim in a High Court trial is not entitled for legal assistance but the rapist gets and assigned Counsel paid by the State. This is not criminal justice but injustice.

S. S. Wijeratne

School tree planting competition campaign starts on June 5

June 5th is the World’s Environment Day (WED). This year’s theme is “Melting ice - Hot Topic? Many in tropical Sri Lanka would think the theme as irrelevant to us.

But ‘Melting ice’ is the result of a combination of factors worldwide and will affect human life world over. Global warming has a devastating effect to island nations like Sri Lanka and the Maldives who are already faced with the rising sea levels and denudation of the coastal belts.

One of the main reasons for ‘Melting Ice’ and rising sea levels is the thinning of ozone layer which stabilizes climate change. Among the many human activities which aggravate depletion of ozone layer is the reduction of forest cover in many countries.

Sri Lanka reputed as an emerald green island has lost 75% of her forest cover from 1900 to 2000. Sri Lanka now has less than 20% forest cover which continues to dwindle. The national efforts at reforestation are adhoc and marginal.

The islandwide school competition to plant fruit trees is aimed at creating a national awareness among the children about the need for environmental conservation and promotion of tree planting.

The programme will commence on June 5 from the ‘Girls’ Home of the Child Protection Society at Rukmale, where over 100 plants will be planted to replace the plants and trees lost when part of the Girls’ Home land was acquired for road expansion.

The lost trees had been planted by a previous generation of CPS Girls’ Home children. Several institutions will be providing the plants for the re-planting ceremony.

Quotes from Judgement

Nallaratnam Singarasa Vs The Hon. Attorney-General

Dualist Vs. Monist Theories

“The general premise of the Covenant as noted above is that individuals within the territory of a State Party would derive the benefit and the guarantee of rights as contained therein through the medium of the legal and constitutional processes that are adopted within such State Party.

This premise of the Covenant is in keeping with the framework of our Constitution to which reference would be made presently, which is based on the perspective of municipal law and international law being two district systems or the dualist theory as generally described.

The classic distinction of the two theories characterized as monist and dualist is that in terms of the monist theory international law and municipal law constitute a single legal system. Therefore the generally recognized rules of international law constitute an integral part of the municipal law and produce direct legal effect without any further law being enacted within a country.

According to the dualist theory international law and municipal law are two separate and independent legal systems, one national and the other international.

The latter, being international law regulates relations between States based on customary law and treaty law. Whereas the former, national law, attributes rights and duties to individuals and legal persons deriving its force from the national Constitution...”

SUPREME COURT

Sarath N. Silva, Chief Justice

Nihal Jayasinghe J.

N. K. Udalagama J.

Cricket match to focus on Children in Need

The High Commissioners of Australia and the United Kingdom in Sri Lanka would be leading a cricket team from the Embassies staff in a symbolic match with young cricketers from Boys’ Home of the Child Protection Society Grounds at Pamunuwa. The match will commence at 9.00 a.m. on Saturday May 19.

The Child Protection Society (CPS) founded in 1928 is the oldest child protection institute in Asia. The CPS was instrumental in promoting enactment of Act No. 18 of 1939 on Children and Young Persons.

The society received the patronage from highest in the land and had supported a Girls’ Home at Rukmale, Kottawa and a Boys’ Home at Pamunuwa, Maharagama.

The cricket match will focus attention on children in need and minimum standards of child care in children homes. The CPS has commenced a survey of the standards of care in Government and private children homes in Sri Lanka.

Questions and Answers

Payment of gratuity and the basis of computation

Questions: I am a resident of Kotahena. I was employed in a leading Company where there are over 50 employees. According to my contract of employment I am entitled to work until I reach 60 years. I reached 60 years in December 2006 after working for 30 years.

After my retirement I have withdrawn my private provident fund and the employees’ trust fund. I have been writing to my Employer for my gratuity. They have not responded to any of my letters. Please let me know whether -

(a) I am entitled to my gratuity

(b) If so, what is the basis of computation

(c) Since my employer is not responding to any of my letters what are the steps that I should take to claim my gratuity.

J. Miranda, Kotahena

Answer: (a) Since you have worked for over five completed years, you are entitled for your gratuity in terms of the Payment of Gratuity Act No. 12 of 1983. In terms of the said Act the Employer should pay your gratuity within 30 days from the date of termination.

(b) Gratuity is computed on the last salary drawn by the employee. 1/2 months salary into the number of years of service put in by the employee.

(c) If the Employer is not responding to you, you should lodge a complaint with the Commissioner of Labour against your Employer. The Commissioner of Labour will thereafter inquiry direct the Employer to deposit the amount due to you with him so that you could withdraw the same.

If the Employer fails to comply with the directions of the Commissioner of Labour, the Commissioner of Labour will institute legal proceedings against the Employer in the Magistrate Court to recover the amount due as gratuity.

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Where to get a copy of birth certificate

Question: I am a Tamil citizen born in Jaffna. I lost my Birth Certificate during the war. I am presently living in Wellawatte. Can I apply for a copy of my Birth Certificate from Colombo or should I get it from Jaffna? Please let me know.

M. Gopalan, Wellawatte.

Answer: Since you are a Tamil citizen, you can get a copy of your Birth Certificate from Colombo and there is no necessity for you to go to Jaffna. A copy of your Birth Certificate could be obtained from the Central Record Room, Maligawatte, Colombo 10. Tel. Nos. 011 2329773, 011 2433075.

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Can I amend my Marriage Certificate?

Question: In my Birth Certificate my name appears as Pushpalatha Karunathilake and I use this name in all my documents. However, in my Marriage Certificate my name appears as Pushpa Karunathilake. Further my date of birth given in my Marriage certificate is incorrect.

My children are living in Italy. In the event of my having to visit my children in Italy, there will be problems in obtaining my Passport. I would therefore appreciate if you could kindly let me know whether I could amend my Marriage Certificate.

Pushpalatha Karunathilake

Galle.

Answer: If you want to amend your Marriage Certificate you have to file a case in the District Court where your marriage was registered. You have to cite the Registrar-General and the Registrar of Marriages as Respondents in the case.

If you need any further advice, please call over at the Legal Aid Commission, Head Office at No. 129, Hulftsdorp Street, High Court Complex, Colombo 12.

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Electoral Divisions and GS divisions under Thimbirigasyaya Divisional Secretariat

Question: I am a resident of Thimbirigasyaya. Could you please let me know through your valuable Legal Aid Page the Electoral Divisions and the Grama Seva Divisions coming under the Thimbirigasyaya Divisional Secretariat.

M. Gunasiri, Thimbirigasyaya.

Answer: There are three Electoral Divisions and 20 GS Divisions coming under the Thimbirigasyaya Divisional Secretariat. They are:-

Electoral Divisions

Borella, Grama Seva Divisions - Kuppiyawatta West, Borella North, Borella South, Wanathamulla, Dematagoda, Kurunduwatta, Kuppiyawatta East.

Colombo-East, Thimbirigasyaya, Kirula, Pamankade West, Narahenpita, Kirulapone, Gothamipura, Pamankade East.

Colombo-West, Kollupitiya, Bambalapitiya, Milagiriya, Havelock Town, Wellawatte South, Wellawatte North.

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What are the types of passports issued to citizens of Sri Lanka

Question: What are the types of Passports issued only to citizens of Sri Lanka?

J. Ferdinands, Negombo.

Answer: Sri Lanka Passports are of the three types:

* Diplomatic Passports

* Official Passports

* Ordinary Passports.

Diplomatic Passports

Diplomatic Passports are issued only to those who hold Diplomatic positions for the time being.

Eligible persons for Diplomatic Passports will be approved by the Minister who is in charge of the subject of Immigration and Emigration for the time being.

Official Passports

Eligible persons for Official Passports are those who are not entitled to Diplomatic Passports but hold an eligible official position for the time being.

Ordinary Passports

Ordinary Passports are categorized into two types:

i) Passports issued valid for travel to All Countries.

ii) Passport issued valid for travel to Specified Countries.

a) Passports issued valid for travel to All Countries.

The holders can travel to any country of the world on the strength of these passports. This passport contains 64 pages.

b) Passports issued valid for travel to Specified Countries.

This category of Passports is valid only for travel to specified countries. The list of countries to which the holders can travel are indicated on page 3 of the Passport.

These Passports can subsequently be validated for “All Countries” on payment of the requisite fee. This validation is done in Colombo by means of serially numbered stickers. Sri Lankan Overseas Missions are authorized to do so without stickers.

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Time limit in accident cases

Question: My husband met with an accident and died on the spot at Narammala one year ago. I am his legal wife and I have three children. We are not familiar with court procedures.

The Magistrate’s Court is still pending before the Narammala Magistrate’s Court. I understand that in order to get compensation, we have to file a case in the District Court. Is there any time limit to file a case in the District Court?

B. Peramuna, Jaela.

Answer: Yes. If you want to get compensation you have to file a case in the District Court where the accident occurred and it has to be filed within two years from the date of the accident. Do not wait until the Magistrate’s Court Case is concluded.

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Who can file a maintenance application?

Question: Please let me know who can file a maintenance application?

G. Rohini, Matara.

Answer: Maintenance Act No. 37 of 1999 states that - (1) An application for maintenance may be made -

(a) Where such application is for the maintenance of a child or disabled offspring, by such child or disabled offspring or by any person who has custody of such child or disabled offspring;

(b) Where such application is for the maintenance of an adult offspring, by such adult offspring or where such adult offspring is incapable of making such application, by any person on his or her behalf; and

(c) Where such application is for the maintenance of a spouse, by such spouse or where such spouse is incapable of making such application, by any person on his or her behalf.

(2) An application for maintenance may be made to the Magistrate’s Court within whose jurisdiction the applicant or the person in respect of whom the application is made or the person against whom such application is made, resides.

Further Section 10 states that -

10. Every application for an order of maintenance or to enforce such an order, shall be in writing and shall be signed by the applicant or the person making the application on his behalf and shall be free of any stamp duty. Every summons to a respondent or a witness shall also be free of stamp duty.

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Tobacco and Alcohol Act No. 27 of 2006

Question: I understand that the Tobacco and Alcohol Act No. 7 of 2006 was brought in to operation on 01st December 2006. I would like to know as per the Act who is designated as Authorized Officers and what are the powers of the Authorized Officers?

M. Williams

Dehiwala.

Answer: Yes. The Tobacco and Alcohol Act No. 7 of 2006 was brought in to operation on 01st December 2006. Section 16 of the Act designates Public Health Inspectors, Police and Excise Officers as Authorized Officers. The powers of the Authorized Officers are:-

(a) At any reasonable time enter any place where he believes any tobacco product or alcohol product is manufactured, prepared, preserved, packaged, exposed for sale or stored and examine any such tobacco product or alcohol product and take samples thereof and also examine anything that he believes is used for the manufacture, preparation, preservation, packaging or storing of that tobacco product or alcohol product;

(b) For the purpose of carrying out effective search operation, stop or detain any vehicle in which he believes that any tobacco product or alcohol product is being conveyed, search that vehicle and examine any tobacco product or alcohol product which is being so conveyed and take samples thereof;

(c) Open and examine any receptacle or package that he believes contains any tobacco product or alcohol product;

(d) Seize and detain for such time as may be necessary any tobacco product or alcohol product by means of, or in relation to which he believes any provision of the said Act or regulation made thereunder has been contravened.

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What is a pedigree

Question: I have purchased a block of property and I hope to construct a house on the said property. I have already applied for a loan from a state bank. When I visited the Bank to inquire regarding my loan application, they informed me that they want a pedigree in order to expedite my loan application. Please let me know what is a pedigree and how does it help the Bank to process loan applications.

S. Justin, Delgoda.

Answer: A Pedigree is a claim in which the relevant details of an abstract of title are summarized. As in an abstract of title the titles of a property from the 1st owner to the present owner has to be stated in the pedigree, along with details as, the names of the transferor or transferee, nature and the number of the deed, date of attestation and the name of the Notary.

Banks and other financial institutions require a title report along with a pedigree in granting a loan on a property as it helps to find out the history of the property without much confusion. A pedigree helps to examine a title of any particular property.

If the property is gained by intestate succession, the portion of property gained by inheritance differs according to the law the deceased was governed. Namely, Roman Dutch Law, Kandyan Law, Thesavalamai Law or Muslim Law.

If the deceased was governed by common law the manner the property is divided could be simply stated as follows:-

If the deceased was married 1/2 of the property would be granted to the spouse and the other `/2 to be equally divided among his children.

If they haven’t any children 1/2 to the spouse and the other 1/2 to parents of the deceased in equal shares. if the parents are not alive equal shares to the deceased’s brothers and sisters. If only one parent is living 1/2 of 1/2 would be granted to the living parent and other 1/2 of 1/2 would be granted to brothers and sisters of the deceased equally.

If the deceased is a divorce 1/2 goes to the children if children are alive and balance goes to the parents equally or if one parent is alive 1/2 of 1/2 goes to the living parent and balance goes to the brothers and sisters equally.