Introduction - Legal Aid faces financial difficulties

A comprehensive, effective legal aid mechanism to provide access to indigent seekers of justice is the only way to ensure equality before law. This is a basic human right. No country could call itself a functioning democracy in the absence of a comprehensive legal aid programme.

Successive Governments in Sri Lanka did not allocate adequate financial resources to establish a sustainable legal aid system despite the enactment of Legal Aid Law No. 27 of 1978. From 1978-2006 the allocation of funds to the Legal Aid Commission was only an apology.

This was despite of the fact that none of the Commissioners received any payment for their services. The Commission consists of nine members, six of whom are volunteers elected by the Bar Council and the other three nominated by the Minister of Justice and Legal Reforms.

The Commission was continuously ineffective due to lack of resources. The Commission lacked financial independence as it has to depend on the inadequate financial assistance allocated by the Ministry of Justice.

In many countries like India, the provision of Legal Aid to the poor to access to justice is incorporated as a Constitutional provision. A few months ago President Mahinda Rajapaksa at the opening ceremony of the Hambantota LAC Center, declared that the new Constitution would contain the right to Legal Aid to the poor would be included in the fundamental rights chapter.

However, none of the constitutional drafts floated around make no mention of access to justice.

Even Constitutional guarantee would be meaningless unless the resources are provided to the Legal Aid Commission to open centers in every court complex. Poor litigants in one judicial zone cannot go and seek justice from another court. The funds provided in 2007 budget was less than half of the required funds.

No funds whatsoever was provided to establish new centers, pay modest honorarium to lawyers who appear in free legal aid cases or to undertake any Legal Awareness Programme in rural areas. This has crippled the Legal Aid Commission.

The LAC has struggled this far with donor assistance from ADB, USAID, UNDP, Asia Foundation and IDLO. But donor funds are extremely limited and not sustainable in the long term as donations are privileged and subject to whims and fancies of the donors. They are time limited and not sustainable.

The Legal Aid is a fundamental human right too important to be left at the discretion of few kind donors. While accepting donor funds for special programmes, the state should take full responsibility to provide core funding as equal access to justice is Constitutional right of all Sri Lankans.

S.S. Wijeratne

Questions and Answers

Forfeiture of Gratuity

Question: I am the Sole Proprietor of a business in Wattala where there are about 20 employees. I have recently terminated the services of my Manager who was with me for 15 years for committing fraud. As a result of the fraud committed by him, I have suffered financial loss in a sum of Rs. 150,000. Police have instituted criminal action against him in the Magistrate’s Court of Wattala. He has asked for his gratuity. Should I pay him?

S. Gamage
Wattala.

Answer: Section 13 of the Gratuity Act provides for the forfeiture of a Gratuity in the following term:

“ Any workman to whom a Gratuity is payable under Part II of the Act and whose services have been terminated for reasons of fraud, misappropriation of funds of the employer, willful damage to property of the Employer, or causing the loss of goods, articles or property of the Employer, or causing the loss of goods, articles or property of the Employer shall forfeit such property to the extent of the damage or loss caused by him.”

As provided in the Act, since the termination of the services of your Manager is for reasons of fraud committed by him and as a result of this act you have suffered financial loss in a sum of Rs. 150,000 you will be entitled to deduct that amount from the Gratuity due to him and pay the balance. You have however no right to deduct from the Gratuity on account of any loans or advances given to him.

If there is a dispute with regard to the amount deducted from the Gratuity and if the workman applies to the Labour Tribunal with regard to his termination, the Tribunal will have the jurisdiction to inquire and determine the disputed amount.

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Community based corrections order

Question: I want to know whether the failure to comply with community based correction order is an offence under the Community Based Corrections Act No. 46 of 1999?

Mr. R. Jacob
Nawala

Answer: Yes. Any offender who fails without reasonable cause, to comply with any condition of a community based correction order shall be guilty of an offence under the Community Based Corrections Act No. 46 of 1999 and shall be liable, on conviction after summary trial, to a fine not exceeding five thousand rupees (Rs. 5,000)

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Urgent bills in Parliament

Question: I normally read the newspaper articles regarding coverage of Parliament. Very often I come across statements with regard to Urgent Bills in Parliament. My question is what is meant by Urgent Bills? Kindly explain through your valuable Daily News Legal Aid Page?

Mrs. Z. Ismail
Dehiwala.

Urgent bills

Constitutional Provisions relating to the passage of Urgent Bills are contained in Article 122 which specifies that where the Cabinet of Ministers determines that a Bill is urgent in the national interest the necessity to publish such a Bill in the Gazette and place it in the Order Book for one week prior to the second reading can be dispensed with and it could forthwith be considered by the Parliament upon receipt of the determination of the Supreme Court.

“Urgency” should be in the national interest but the Cabinet of Ministers is not expected to explain why it is considered to be urgent.

When an Urgent Bill is referred to the Supreme Court for a special determination the court is expected to give its decision either within twenty four hours or a maximum three days.

The determination is communicated to the President and the Speaker and, upon being announced to Parliament it could forthwith be taken up for debate. The proviso to Standing Order 45 states that an Urgent Bill referred to in Article 122 of the Constitution shall stand for the second reading upon any day as the Minister or his Deputy may appoint.

An Urgent Bill can be taken up for second reading on the same day on which it is presented by passing the relevant business motions, and it is very often so done.

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Sexual harassment in private buses

Question: I am a daily traveller in private buses. Very often I am subjected to sexual harassment in the bus. Even my female friends are subjected to the same sexual harassment and they are thoroughly disgusted of the said incidents. How far can we tolerate this type of harassments. Kindly let us know whom and where to complain?

Female Bus travellers
Colombo.

Answer: Under the Penal Code Amendment Section 22 of 1995 ‘sexual harassment’ is defined as “whoever, by assault or use of criminal force, sexually harasses another person, or by the use of words or actions, causes sexual annoyance or harassment to such other person commits the offence of sexual harassment and shall on conviction be punished with imprisonment of either description for a term which may extend to five years or with fine or with both and may also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for the injuries caused to such person.”

The Penal Code Amendment Act No. 16 of 2006, further states that assault may include any act that does not amount to rape under section 363 or grave sexual abuse under section 365 B.

If you face sexual harassment, please do not keep silent but raise your voice. You can show your anger to the offender, or you can complaint the incident either to the bus conductor or driver. If the driver or the conductor does not act on your complaint, you can get off from the bus and lodge a complaint to the police station against the bus driver and the conductor regarding the sexual harassment.

The driver and conductor could be punished for aiding and abetting the offender. You have another option that is to call 118 or the Children’s and Women’s Bureau at the Police Head Quarters, Colombo. Tel No. 011-2444444. When making a complaint to the police station, you must always produce the bus ticket.

This will enable the police to locate the bus as the bus ticket will give the registration number of the bus. It would also be helpful to the police if you can give a brief description of the offender. If you wish to file a case, the Legal Aid Commission, Colombo is ready to assist you in the matter.

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Maternity leave in the case of twins

Question: I am working in an Audit Firm in Colombo 3. I am only 26 years old and about to have my first confinement. My doctor after doing a scan informed me that I will give birth to twins. Please let me know -

(a) will I be able to obtain double the maternity leave since I will be having two children?

(b) how many days of maternity leave will I be entitled to for my second confinement?

Ramani Fernando
Moratuwa

Answer: In respect of the birth of the first child, a female employee is entitled to 84 working days as maternity leave provided the confinement results in the birth of a “live” child.

In respect of the birth of the second child, she will be entitled to 84 working days on full pay.

For the third or subsequent confinement she will qualify for only 42 working days on full pay.

If an employee has lost a child and at the time of the third confinement she has only one child, she could qualify for 84 working days of maternity leave for the third confinement.

If a female employee who on her first confinement gives birth to twins is entitled to 84 working days as maternity leave and not double the leave. Though it is not expressly stated in the Law for the second confinement she will be entitled to 42 days as maternity leave on the basis she already has two living children, what is material is the number of children at the time of the confinement and not the number of previous confinement.

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Widows’ and Orphans’ Division

Question: Kindly let me know the duties performed by the Widows & Orphans’ Division in the Pensions Department.

Pensioner from
Pitakotte.

Answer: The duties of the Widows’ and Orphans’ Pensions Division in the Pensions Department are as follows:-

1. Appoint guardians when obtaining minor orphans pensions.

2. Issue Teachers Widows’ Widowers’ & Orphans’ numbers, collecting contributory a updating and furnish files to the relevant divisional secretariats to grant widows’, widowers’ & orphans’ pensions.

3. Refund contributory amounts of ineligible contributors for widows’, widowers’ & orphans’ pensions.

4. Provide instructions for widows’, widowers’ & orphans’ issues, which arise from divisional secretariats.

5. Take necessary steps to amend widows,’ widowers’ & orphans’ acts & regulations when required.

6. Registering government officers who hold pensionable posts under widows’, widowers’ & orphans’ pensions scheme.

7. Collecting & depositing/accounting contributory amounts under widows’, widowers, & orphans’ pensions scheme.

8. Maintaining widows, widowers’ & orphans’ pensions files

9. Furnish files to the relevant divisional secretariats after the death of contributor to widows’ widowers’ orphans’ pensions.

10. Issuing not decentralized widows’, widowers’ & Orphans’ awards and problematic widowers’ & orphans’ awards.

11. Approve disable orphans’ pensions and issuing awards.

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Countries for which a passport is valid

Question: I want to know for which countries a passport is valid. Please advice me.

M. Ismail,
Dematagoda.

Answer: A passport is valid for travel only to those countries for which a specific endorsement has been made on page 4 of the passport. Sri Lankan passports may be made valid for travel to any country in the world except those countries to which travel may be specifically restricted by an endorsement on page 4.

General conditions regarding the issue of a passport having been satisfied, a passport may, as a general rule, be issued to any country.

If an applicant wishes to travel to any other country or countries, for which travel is not specifically restricted by instructions, those additional countries can be added to the above normal endorsement.

The endorsement of additional countries should be made only on the issuing authority being satisfied that the border has good reason for visiting them.

An endorsement covering a large number of countries should not, as a rule, be given where the issuing authority is not satisfied that the holder is likely to travel very widely and necessarily needs such an endorsement or where the issuing authority has reasonable grounds to consider that some measure of restraint upon the movements of the holder is desirable.

The issuing authority may, at his discretion, endorse a passport specifically for the countries to which the applicant contemplates immediate travel, as a general rule.

A passport should not be endorsed valid for countries which are in a state or war or where any unrest prevails or which have not been officially recognised by the Government of Sri Lanka.

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Tobacco and Alcohol Act No. 27 of 2006

Question: I would like to know as per the Act who is designated as Authorised Officers and what are the powers of the Authorised Officers?

F. Perera,
Meegoda.

Answer: Yes. The Tobacco and Alcohol Act No. 7 of 2006 was brought into operation on 1st December 2006. Section 16 of the Act designates Public Health Inspectors, Police and Excise Officers as Authorised Officers. The powers of the Authorised 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, top 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.

Quotes from judgements

S.C. Special Determination No. 19/2003
Anula Irangani Fernando Vs Hon. Attorney-General
The Right to Propagate Religion
In the Supreme Court Determination No. 2/2001

it was stated that:

“In Sri Lanka the Constitution does not guarantee a fundamental right to ‘propagate’ religion as in Article 25 (1) of the Indian Constitution. What is guaranteed here to every citizen is the fundamental right by Article 14 (1) (e) to manifest, worship, observe, practise that citizen’s religion or teaching.”

In such circumstances, although it is permissible under our Constitution for a person to manifest his or her religion, spreading another religion would not be permissible as the Constitution would not guarantee a fundamental right to propagate religion.

Even in situations where propagation is treated as a fundamental right enshrined in a Constitution, the entitlement has not extended to convert another person to one’s own religion as that would impinge on the freedom of conscience. (Rev. Stainlaus v State of Madhya Pradesh).

Similarly when there is no fundamental right to propagate, if efforts are taken to convert another person to one’s own religion, such conduct could hinder the very existence of the Buddha Sasana.

What is guaranteed, under the Constitution is the manifestation observance and practise of one’s own religion and the propagation and spreading Christianity as postulated in terms of clause 3 would not be permissible as it would impair the very existence of Buddhism or the Buddha Sasana.

Cluse 3(1)(a) and (b) in the Bill referred to earlier, states that the corporation is constituted and declared to be, to spread knowledge of Catholic religion and to impart religious, educational and vocational training to youth.

Those sub clauses speak not merely of spreading a religion, but spreading knowledge of a religion.

In these circumstances we are inclined to agree with the submissions made by the petitioner that Clause 3 of the Bill, as presently constituted, would be inconsistent with Article 9 of the Constitution”.

SUPREME COURT

Shirani A Bandaranayaka J.
H.S.Yapa J.
Nihal Jayasingher J.

Legal Aid centers

The Legal Aid Commission Programme to open Legal Aid Centers in all judicial zones had been stopped due to lack of funds. Presently the LAC has 35 Legal Aid centers covering all the High Court Zones and few remote Courts like Mahiyangana, Maho and Matugama.

The LAC made arrangements to open Legal Aid Centers in Dambulla, Warakapola, Deniyaya, Attanagalle and Pugoda in May and June. Inauguration had been indefinitely postponed as adequate funds have not been provided by the Treasury. Several requests to augment the necessary financial requirements had fallen on usual deaf ears.

As poor litigants specially women and children seeking maintenance and protection from domestic violence go before all the Courts in the island, Legal Aid to the poor to become effective and comprehensive Legal Aid Centers should be available in all the Courts in the island. The present budgetary provisions do not permit this.

Legal Aid lawyers are fully devoted to Legal Aid work to the exclusion of doing private practice. This procedure is to avoid allegation by litigants against charging fees from the poor legal aid clients.

The Financial crisis of the Legal Aid Commission will further aggravate the Human Rights programme executed by the LAC.