Legal Aid

Introduction - Law protecting victims and witnesses rights

The Legal Aid Commission welcomes the proposed legislation to protect and assist victims and witnesses (VWAP) in Sri Lanka. The Legal Aid Commission entered into an MOU with National Center for Victims of Crime (NCVC) to provide free legal aid.

The NCVC was established in 2002 on a proposal by the Chief Justice Sarath N. Silva, PC with an Advisory Council consisting of apex figure in the Criminal Justice System has for five years urged Authorities to enact a VWAP Law in Sri Lanka.

It was also NCVC that initiated the first draft law to protect victims of crime in 2002 which was approved and transmitted to the Ministry of Justice in 2002 itself without any tangible action upto 2006.

The new draft law was base conceptually on 1995 UN Declaration of Victims of Crime and abuse of power and national laws of few countries i.e. Australia, South Africa, Canada and USA which has enacted VWAP legislation.

The NCVC with support of the UNHCR and the Asia Foundation launched an islandwide programme to familiarise the prospective stake - holders on principles of victims and witnesses protection.

The key persons in a future programme of implementation, such as High Court Judges, Magistrates, Criminal Court officials, Attorney-General’s prosecutors and over 6000 crime police personnel in the island.

Sri Lanka received support from Australian experts in training the prosecutors in the Attorney-General’s Department. The late K.C.K. Kamalasabeysan, PC, past Attorney-General played a crucial role in the senior training programmes for prosecution.

The New Draft Law

The 2007 draft law is based on 2002 draft law incorporating many new legal provisions. The present Attorney-General, C.R. de Silva, PC has worked extensively on the new draft and has expanded the scope of the law from the courts systems to include the Commission of Inquiry.

The draft law has also included new category of victims namely victims of human rights violations. Many Human Rights or Fundamental Rights Violations - i.e. torture or unlawful arrest are also crimes under the Sri Lankan Law but some others rights like violation of equality before the law are not treated as crimes in our penal laws.

The inclusion of victims of violation of fundamental rights along with victims of crimes is delicate and is a difficult legislative mix.

The proposals made by interested and competent organisations should receive due attention of the law makers but criticism should not delay VWAP legislation in Sri Lanka any longer. Amendments would have to be made to the law upon the practical application of this fundamental law as Sri Lanka gathers experience on victims and witnesses protection.

S.S. Wijeratne

Questions and Answers

ORDER NO.13 UNDER EPF ACT

Question:

I am working in a Hindu Temple in Colombo since January 1994. There are more than sixteen employees. I am happy with my work and my employer. I meet several devotees and discuss matters in general. I met a Labour Consultant. He told me that I am not entitled to EPF as this is a place of religious worship.

I met a Labour Department Officer and he told me that I am entitled to EPF but he is unable to give the regulations or order in this regard. When I told the Labour Consultant what the Labour Department Officer told me he said that what the Labour Department Officer told is not correct and referred me to Order No.13 under the EPF Act.

Please advise me whether I am entitled to EPF and if so under what order or gazette notification and from when?

M. Sebastian
Kotahena

Answer:

The Labour Department Officer is correct. Order No.13 which the Labour Consultant referred to you published in Gazette No.14936 of December 11, 1970 was amended by Order No.15 published in Government Gazette No.653/16 of March 14, 1991.

According to this Order from 01.04.1991 employment in the service of any charitable institution maintained solely for the purpose of religious worship or social service being an institution or organization employing ten (10) or more persons is liable to contribute to EPF.

The answer to your question is that you are entitled to EPF from January 1994 as you state that the number of employees is more than 16. Recovery of EPF can be done from January 1994 as Time Bar does not apply to EPF.

You may explain this to your employer and ask him to contribute EPF from 1994. If he does not pay, you can make representations to the Labour Department.

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WHETHER MENTALLY ILL DAUGHTER IS ENTITLED TO GET PARENTS’ PENSION?

Question: My husband and I are retired Government Servants. Our eldest daughter is mentally ill. We want to know whether she is entitled to get my husband’s pension after our death. If so, would you please tell us the necessary action we should follow in this regard.

A. M. Pathirana
Bandarawela.

Answer:

Under the Pension Minutes and Circulars your disabled daughter is entitled to get two pensions after the parents’ death until her life time (if both parents are Government Servants).

In this regard, you have to request the Pension Department with the photocopy of the Medical Certificates relating to your disabled daughter together with the W & OP number.

Then they will issue an application form to be filled by the parents and forward the same to the Medical Board appointed by the Pensions Department. However, a third party should be kept informed that the disabled child is entitled to a pension after the parents’ death.

If you need further advice in this regard, you may please call over at our Legal Aid Commission, Disabled Unit at No. 129, Hulftsdorp Street, Colombo 12 Tel. No. 2433618, 5335329, 5335281.

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CHEATED BY MEDICAL CENTER

Question:

I went to a certain Medicare Center to get an appointment with a well-known skin specialist to get treatment for my daughter. The receptionist offered me a receipt for the said appointment. The name of the doctor, date and time given were mentioned in the receipt.

On the said date we went to see the doctor on time. However to our dismay the doctor had come to the Medical Center on the said date, seen the patients and had left. When we inquired from the reception, we were made to understand that it was a mistake made by the receptionist who was on duty on the date.

When I asked for the refund of the money, it was refused. Is there any legal remedy as I have wasted my time, energy and money to see this doctor.

Please advise me.

Hameed
Colombo.

Answer

You can seek remedy under the Consumer Affairs Authority Act No. 09 of 2003. Under this Act a complaint could be made to the Consumer Affairs Authority, 1st & 2nd Floor, C.W.E.Secretariat, Vauxhall Street, Colombo 2.

When making the complaint, a photocopy of the receipt should be produced. Complaints to the Consumer Affairs Authority could be made personally or by letter (should be sent by registered post.) Tel No.2393495, 2393577 2445897.

If you need any assistance in this matter, you can call over at the Legal Aid Commission, Consumer Protection Desk, at No.129, Hulftsdorp Street, Colombo 12.

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VICTIMS AND WITNESSES PROTECTION LEGISLATION

Question:

What is victims and witnesses protection legislation?

M. Iddamalgoda
Boralesgamuwa

Answer:

Up to date Sri Lanka has no victims and witnesses assistance and protection (VWAP) legislation even though UN enacted declaration in 1985 calling all states to enact legislation. National Center for Victims of Crime (NCVC) established in 2002 is the only Institute specializing on this subject in Sri Lanka.

NCVC proposed a draft legislation and it was approved by the National Law Commission. Authorities failed to take action and it was again entrusted to the National Law Commission to make another draft with Donor funding in 2006. The debate is now on the new draft. No VWAP legislation could be enacted without political will.

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CAN JPS DEMAND ANY MONEY FROM PUBLIC FOR SIGNING AFFIDAVITS OR ANY OTHER DOCUMENTS ON THEIR BEHALF?

Question:

Please be good enough to let me know through your Legal Aid Page whether a Justice of Peace can demand money from the public for signing affidavits or any other document issued to them. There is a J.P in my area who is demanding as much as Rs. 100/= to Rs.200/= or sometimes even more. I want to know whether -

(a) Can he be considered as a bribe taker?

(b) What action can the authorities take against him?

(c) If it is against the law, to whom can we complain?

I await your kind reply.

P. Akmeemana
Ratmalana

Answer:

JPs are appointed by the Ministry of Justice. As they do an honorary service, they cannot take any money from the public for services rendered by them. Nevertheless JPs receiving any money from the public does not come under the Bribery Act and therefore it is not considered as a bribe.

However, you can make a complaint regarding the said JP to the Ministry of Justice and the Justice Ministry can suspend his services for such action. Complaints of this nature could be made with proof to -

Senior Assistant Secretary, The Ministry of Justice, Supreme Court Complex Colombo 12 Tel No.2323022

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IS PRESS COUNCIL STILL FUNCTIONING?

Question:

Few years ago a Newspaper published an untrue statement about sale of my house. I complained to the Press Council and a correction was published. Is the Press Council still functioning?

Ranjith Perera
Marawila

Answer:

The Press Council is not functioning but the Press Council Law is still in the Statute Book. You can now complain to the Press Complaints Commission which is established under the Press Institute which is a Voluntary Association. The address is The Press Complaints Commission, 65/5, Ward Place, Colombo 7. Tel No: 5353635

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SOCIAL SERVICE PAYMENT FROM GOVERNMENT

Question:

I am 66 years of age and was employed. Presently I have no income or pension. Can I receive any social service payment from the Government?

K.N.Silva
Negombo

Answer:

Despite long discussions and public promises, self employed who has no pensions or EPF benefits, still do not have social security payment system. It was reported that National Council of Elders started a pilot project to make social security payment for elders without any income.

Please contact National Secretariat for Elders, No.150A, L.H.P.Building, Nawala Road, Nugegoda for further confirmation. Tel.No.011 2824082.

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DRAFT BILL ON VICTIMS AND WITNESSES ASSISTANCE AND PROTECTION

Question:

The newspapers recently reported that a new bill on victims and witnesses assistance and protection (VWAP) was approved by the Cabinet on a proposal by the President.

I would like to know what is VWAP Law and why are VWAP laws needed in Sri Lanka?

M.Fernando Ja-ela

Answer:

The laws that are primarily intended to protect and assist victims of crimes or violation of fundamental rights, witnesses to such crimes following the 1985 UN Declaration on Victims of Crime and Abuse of power. Many countries have enacted VWAP laws. In South Asia, Sri Lanka has become the first country to initiate legislation.

Sri Lanka urgently needs the new law for the following reason:-

(i) Crime rate in Sri Lanka has spiralled during the last decade and according to police reports some 61,000 major crimes were reported in 2006. It is well known criminal justice statistics that 96% of the criminals escape detection or conviction. A leading reason for accused to escape conviction is the absence of witnesses to give evidence.

The reluctance of witnesses to come forward to give evidence in courts is because they do not wish to get involved in protracted court procedures. The absence of protection from threats emanating from the criminal world is another reason. Sri Lanka has no law to punish people who threaten witnesses, except through a long process of contempt of court.

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ERROR IN THE NAME IN THE NIC NO.487283304V

Question:

I applied for a duplicate of NIC, after loss of NIC No.487283304V (Application No.E7792618)

A new NIC was received by me in June 2007. My full name is Binthy Huzaima Hameed whereas my name has been written as BINTHY HUZAIMA HAMEEM.

On 28/06/2007, the NIC was returned to the Department of Registrar of Persons. So far I have not received the NIC with my correct name.

Now I am without an Identity Card. Could you please help me to get my NIC without further delay.

Binthy Huzaima Hameed
Colombo 12

Answer:

We have referred your matter to the Registrar of Persons Department and we have been informed that your matter will take some time because there are so many applicants to obtain new National Identity Cards.

However they have requested us to inform you to forward a letter by registered post to Mr.A.G.Dharmadasa, Commissioner, Registrar of Persons Department, C45, Keppetipola Mawatha, Colombo 5. Tel.No.0112 508022 who will personally look into your matter.

LAC to celebrate international days

The LAC Developmental Legal Aid Desks are making preparations to create islandwide Awareness Programmes through its 36 centers to celebrate the following UN Days commencing from October 01. Principals of schools are invited to contact the LAC to arrange lectures on the importance of these international days:-

October 24 - United Nations Day and World Development Information Day

November 16 - International Day of Tolerance

November 20 - Universal children’s Day

November 25 - International Day for the Elimination of Violence against women

December 01 - World AIDs Day

December 03 - International Day for Disabled Persons

December 09 - International Anti-Corruption Day

December 10 - Human Rights Day

December 18 - International Migrants Day

Quotes from judges Appointment of Judges

“Although Judges of our system are not elected, they are appointed directly by elected people. These people hope against hope that the persons they appoint as Judges will, in a general way, reflect their philosophy of society and its laws. It is Realpolitik of which I speak.

It’s in that way that differing governments appointing Judges hope that they can secure a reflection, over time, of the kind of philosophy that the people who have elected them have generally adhered to. Of course, there can be shattering disappointments for governments of all persuasions.

For example, Sir Anthony Mason and Sir William Deane, the suggested ‘radicals’ of the High Court in recent times, were both appointed by Coalition governments. In the case of Sir Anthony Mason it was the McMahon Government.

In the case of Sir William Deane it was the Fraser Government. Both those governments probably expected that they would be (if I can coin a phrase) ‘capital C conservatives’. So you can just never tell how Judges who are people of integrity will develop on the Bench or will react to particular problems....”

Justice Michael Kiby, High Court, Australia

‘What is it Really Like to be a Justice of the High Court of Australia?

A Convention of the Law Students, University of Sydney, 23 May 1997, Judicial, Conduct, Ethics and Responsibilities - p45.

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.

Your questions should be addressed to - Daily News Legal Aid Page, Chairman, Legal Aid Commission, No. 129, Hulftsdorp Street, Colombo 12. Email: [email protected]

Website: www.lawaid.org