Features | Online edition of Daily News

The 42nd Legal Aid Centre was opened at the Juvenile Magistrate’s Court in Bambalapitiya on December 19, 2007. From left: S.S. Wijeratne, Chairman, LAC, Jagath Wellawatte, Chairman, National Child Protection Authority, Justice Hector S. Yapa, Director-General, LAC and Srinithy Nandasekaram, Juvenile Magistrate, Bambalapitiya lighting the oil lamp.

Introduction - Sexual harassment in public transport

Last Friday’s Legal Aid Page carried a letter from the LAC Women’s Programme Co-ordinator about a harrowing personal experience she experienced in a bus when returning home from work.

Ironically, she has just completed a 16 day International programme for the elimination of violence against women which according to a 2007 UN report is fast becoming a worldwide social menace.

Harassment or molestation of women in buses and trains has hitherto been a hush hush crime less talked about better for the image of the country.

It is a taboo subject like ‘incest’ that is mostly kept under wraps. An experienced political leader once told me that Sexual Gender Based Violence (SGBV) has always prevailed in all societies and should not be given undue importance as it would only produce counter-productive results.

Sexual harassment whether in public transportor in offices was made an offence in Sri Lanka in the 1995 Amendment to Penal Code. Section 345 of the Penal Code reads:

“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”.

Explanation - 1 Unwelcome sexual advances by words or action used by a person in authority, in a working place or any other place, all constitute the offence of sexual harassment.

Despite the above penal provision, there are very few cases filed by the police under this section during the last 13 years.

In an internal survey conducted by the LAC, almost all the female legal aid workers who use public transport to commute to work had been subjected to sexual harassment at one time or the other.

Some of them have tried to complain to the nearest police stations but did not receive the support of the bus crews who looked at the issue as too trivial to embarrass men.

By and large all the male passengers ignored the pleas of harassment of female passengers or took the side of the offender.

Many female victims avoided ugly incidents by keeping silent or moving away to another section of the bus. They bore their shame day after day silently as the implementation of the Section 345 of Penal Code has never been taken seriously by the law enforcement agencies in Sri Lanka.

The Criminal Justice Procedure on Sexual Harassment is protracted and many victims cannot afford the time or the hassle in police stations without getting late for their employment.

There are very few Employers who will tolerate their female staff spending time in police stations or courts instead of coming to work.

Sexual victimisation in public transportation is not yet a concern of corporate social responsibility of the award winning Companies in Sri Lanka.

The police should be committed to enforcement of law against the sexual harassment.

They did a commendable job against drunken drivers and brought about a cultural change in drunken driving specially in Colombo. A similar programme to curb sexual harassment of women in public transport could be initiated by the police.

The majority of Sri Lanka’s population are women. If society fails to treat them with equal dignity, we will be perpetrating social injustice.

S.S. WIJERATNE, Email: [email protected]

Second anniversary of Daily News Legal Aid page

The Legal Aid Commission will be celebrating its second anniversary of the Daily News Legal Aid Page on January 13.

The LAC wishes to thank the Chairman of Laka House, Daily News Editor, his staff and readers islandwide for their great support and encouragement extended to us to carry on with this page uninterrupted for two successful years.

Survey on incest published

The Ministry of Social Services and Social Welfare has published a short report on pilot research on incest in the districts of Anuradhapura, Polonnaruwa and Moneragala.

The survey was conducted by the National Center for Victims of Crime with the collaboration of the Ministry of Social Services and Social Welfare.

In a foreword to the report by the Secretary “Although incest takes place for a very short period of time, the impact of incest has long term effects on personal development of children and on the long run the future of the child will be affected.

Rehabilitation of sexually abused children by their close relatives has to be designed very systematically as both parties of the crime have to live within the family environment even after rehabilitation”.

Intensive course on Internally Displaced Persons (IDP) protection and assistance

Applications are invited from interested persons for training in legal principles governing IDPs. Applications should reach the LAC prior to January 15 and sent to: Legal Aid Commission, 129, Hulftsdorp Street, High Court Complex, Colombo 12. Tel. 2395894

Law & Justice

“Justice is not mandatory in our society. Politicians are not required to act in the public interest or to enact just laws and courts are not required to dispense justice but to enforce the law.

We hide such fundamental truths by describing the legal system as ‘the justice system’ and by references to the ‘rule of law’ and ‘justice according to law’ as though law necessarily has some intrinsic relationship to qualities of fairness and justice. It does not.”

Cynthia Banham, “What Really Gets Under Judges ‘Wigs’, The Eye, 15 Dec. 1999, pp. 48-49

Quoted by A.R.B. Amerasinghe in “Judicial Conduct, Ethics and Responsibilities - page 269.

Recorded evidence

Question: I want to file action against another party. I have valid recorded evidence. Can I produce the recorded evidence to prove my case? Please let me know in detail.

CHARUKA AMERASINGHE, Tangalle.

Answer: Yes. You can produce all your recordings as evidence under the provisions of Evidence (Special Provisions) Act No. 14 of 1995. Section 4 of the said Act states -

1. “In any proceeding where direct oral evidence of a fact would be admissible, any contemporaneous recording or reproduction thereof, tending to establish that fact shall be admissible as evidence of that fact, if it is shown that -

(a) the recording or reproduction was made by the use of electronic or mechanical means;

(b) subject to subsection (3) of this section, the recording or reproduction is capable of being played, replayed, displayed or reproduced in such a manner so as to make it capable of being perceived by the senses;

(c) at all times material to the making of the recording or reproduction the machine or device used is making the recording or reproduction, as the case may be, was operating properly, or if it was not, any respect in which it was not operating properly or out of operation, was not of such a nature as to affect the accuracy of the recording or reproduction;

(d) the recording or reproduction was not altered or tampered with in any manner whatsoever during or after the making of such recording or reproduction, or that it was kept in safe custody at all material times, during or after the making of such recording or reproduction and that sufficient precautions were taken to prevent the possibility of such recording or reproduction being altered or tampered with, during the period in which it was in such custody.

2. If the conditions set in subsection (1) are satisfied, the recording or reproduction shall be admissible is evidence of the fact recorded or reproduced, whether or not such fact was witnessed by any person.

(a) cannot be played, replayed, displayed or reproduced in such a manner so as to make it capable of being perceived by the senses; or

(b) is capable of being so perceived but is unintelligible to a person not conversant in a specific science; or

the court may admit in evidence a transcript, translation, conversion or transformation, as the case may be of such recording or reproduction which is intelligible and is capable of being perceived by the senses.

4. A recording or reproduction shall be taken to have been made by the use of electronic or mechanical means, whether it was made by a single machine or device or by several machines or devices or by different machines or devices, in any combination, with or without the aid of any appropriate equipment or human intervention.

5. Where evidence is admissible under the preceding provisions of this section, a duplicate of such evidence shall be admissible in the same manner and to the same extent as the source from which the duplicate is made.

********

Marriage problem

Question: My name is Nethra Dissanayaka. I am seeking for legal advice regarding the divorce case, that I wish to file against my husband.

My husband and I have been married for nearly 22 years and we have a daughter who is 20 and twin sons 9 years old. Most of our marriage life, my husband has been leading a highly promiscuous life style which I had to tolerate for years just for the sake of my children.

Moreover he has been verbally abusing me all these time in front of my children for no good reason and even now when we have such grown up children he has not given up his promiscuity away from his life.

I have been patient for so many years and forgiven him all this time hoping that he will change but it hasn’t been of any use. Now I have lost my patience and I wish to file a divorce case against my husband.

Furthermore, there are few issues, which I would like to sort it out and legal action be taken. They are as follows:

I. I have a land in Colombo which I have inherited from my parents but which is legally owned both by me and my husband. When getting the divorce, I wish to claim the full ownership of this land since it is an inheritance from my parents.

2. We also have a house and land which is again legally written in my name and my husband and I would like to know what my children and I will gain from that.

3. Furthermore, since by husband is holding a managerial position in a overseas company I would like to know what percentage of his income will be allowed for my children and how I can prove legally about his profession and about his salary.

Please advice me about the legal procedure that I should take and how I can prove legally the current ownership of the above mentioned property since I do not possess any legal documents at the moment.

More importantly I wish to claim the full guardianship of my children. Hoping to receive your kind response as soon as possible.

MRS. N. DISSANAYAKA.

Answer: If you are keen to file a divorce action, you must prove one of the following grounds under the General Marriage Ordinance:

You can institute a divorce action in the particular jurisdiction where you reside. Apart from the divorce action you can ask for permanent alimony (compensation), alimony and costs of litigation.

(1) If both of you have joint ownership you can claim for half of the property according to the law.

(2) The same position will apply to this matter also and by negotiating with your husband you can transfer the properties to your children.

(3) Try to get the details of your husband’s Company and list the Accountant and/or the Manager who deals with his payments as witness of your divorce action. In that event you can prove his income through your witnesses. The court has discretionary powers to distribute some money after considering the total income of your husband.

(4) In your divorce action you can also claim for full guardianship of your children. However, you have to satisfy court that your are the most suitable and proper person to look after the children than your husband.

The question of getting the deed copies, we write to advise you that you obtain the copies of the deeds from the particular Land Registry after submitting the particular information.

We write to state that you can also proceed to file a domestic violence case under the Domestic Violence Act No. 34 of 2005 to prevent the husband’s cruelty. You can also file a Maintenance Case while the divorce case is going on.

********

Bribery Act

Question: Is the private sector covered by the provisions of the Bribery Act?

DENZIL PERERA, Battaramulla.

Although the Bribery Act provisions are mainly for the public service, the public are covered in certain specific instances such as offering a bribe or acceptance of a bribe on behalf of a public servant or instances where such persons may be a ‘go between’. Thus the private sector is also brought in under these instances of bribery offences.

A special section was introduced in 1994 (Section 70) whereby the offence of ‘corruption’ was brought in as an offence. This section is also for the public service.

Assets inquiries are also covered by Section 23A of the Bribery Act. Under this section assets investigation may commence against any person whether in public service or otherwise.

But the presumption under this section is that the unexplained wealth of the person subjected to an assets investigation is that he has amassed the unexplained wealth by ‘bribery’. Thus it follows the presumption may relate to those covered by the Bribery Act as set out at the beginning.

In conclusion it may be stated that the Bribery Act is for the public service but in limited circumstances it is applicable to public which includes the private sector.

Financial assistance to purchase shares

Question: As per the Companies Act No. 7 of 2007, can the Company give financial assistance to purchase shares?

T. FONSEKA, Delgoda.

Answer: A company shall not give financial assistance directly or indirectly for the acquisition of its own shares. However, such financial assistance can be given in certain circumstances - i.e. if the board has previously resolved that -

(ii) terms and conditions of such assistance are fair and reasonable to shareholders not receiving that assistance.

(iii) Immediately after giving the assistance the Company will satisfy the solvency test.

2. Such financial assistance plus balance outstanding on financial assistance given previously shall not exceed 10 per cent of company’s stated capital unless it first obtains from auditors a certificate that -

the auditor had inquired into the state of affairs of the Company and is not aware of anything to indicate that the opinion of the board with regard to the solvency test is unreasonable in all the circumstances.

********

How is property divided under Common Law?

Question: Could you kindly explain how a deceased’s property is divided under the Common Law. An early reply to my question would be greatly appreciated.

NANDA PERERA - Nawala

Answer: Under the Common Law a deceased’s property could be divided in the following manner:

If the deceased was married 1/2 of the property would be granted to the spouse and the other 1/2 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.

Computation of 30 days for filing of petition of appeal against order of Labour Tribunal

Question: I filed a Labour Tribunal case in Kandy and the Tribunal has dismissed my application to the Labour Tribunal.

I now want to appeal against the order of the Labour Tribunal. I know that it has to be done within 30 days from the date of the order, but please let me know whether -

B. RAHUMAN, Boralesgamuwa.

Answer: (a) It is provided in Section (6) (i) of the Industrial Disputes (Hearing and Determination of Proceedings) (Special Provisions) Act No. 13 of 2003 as follows:

“A Petition of Appeal made under Section 3ID of the Industrial Disputes Act against an order made by a Labour Tribunal shall be filed within 30 days (including the day on which the order appealed from was made but excluding Sundays and Public Holidays) of the date of the making of the order from which the appeal is preferred”.

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.

Yours questions should be addressed to - Daily News Legal Aid Page, Chairman, Legal Aid Commission, No. 129, Hulftsdorp Street, Colombo 12.