LEGAL AID COMMISSION

Introduction -

Good Governance

“Public give and take between the people’s Representatives and those wielding administrative power is the essence of democracy” Madelene Albright in “Memo to the President Elect”.

Good Governance (GG) has been a topic of public discussion from ancient times. The ancient Buddhist code of Governance was termed “Dasa Raja Dharmaya” or the ten “Royal Virtues”.

They consisted of generosity, morality, making sacrifices for the good of the people, honesty and integrity, compassion, restraint, non-hatred, non-violence, tolerance and non-opposition to the will of the people.

The modern concept of Good Governance is embodied in these ancient aphorisms and was respected by Sri Lankan kings for centuries. When some kings flouted these principles in ancient times, there was unrest and rebellion among the people.

The modern concept of Good Governance developed after World War II is mostly based on United Nations Principles. The term governance is defined as the process of decision making and the process by which the decisions are implemented.

Eventhough, GG is applied usually in the context of the State actors, in the modern context the phrase is also used in relation to the private sector, Corporate Good Governance and in the Code of Ethics for the Non-Governmental Organisations (NGO).

This is extremely significant as some of the NGOs and INGOs have arrogated upon themselves a watch dog role to ensure Good Governance in the public sector. Increasingly financial multi-lateral institutions, i.e. IMF, World Bank and ADB look at the Good Governance indicators of a country before approving loans.

The UN indicators of Good Governance include the following overly used terms. Participation component includes representative democracy without discrimination on the basis of gender, race and religion.

Sri Lanka enjoyed Universal Franchise since 1931 and even with her ethnic tribulations is still a functioning democracy respecting the principles of Rule of Law. Eventhough there is criticism about the laws delays and corruption at the courts minor administration, the judiciary process has not been sullied.

The third principle of GG is transparency ensuring decision making and implementation is not opaque and is executed on the basis of established rules and regulations.

Many countries including India have enacted freedom of information; legislation which have enabled public access to administrative information. Transparency in governance could reduce levels of corruption or allegations there of.

GG also calls for responsiveness to public grievances without undue delay or procrastination. We still have many Administration Institutions which are not only indifferent to public complaints but who do not even respond to letters. Many poor people are compelled to resort to legal action due to this public sector indifference and lethargy.

Partisan politics stunts the merit based selection of office holders which adversely affect even a semblance of Good Governance.

The other attributes of Good Governance are equity and inclusiveness, effectiveness and efficiency, accountability and governance based on respect for human rights.

Good Governance and Dasaraja Dharmaya are only ideals towards which societies and rulers should strive. In this 60th Anniversary week of Sri Lanka’s independence, after 443 years Portuguese, Dutch and English Colonial rule, we should resolve that freedom of our people that should be the foremost feature of Good Governance.

S.S. WIJERATNE

Email: [email protected]

Quotes from Judges Laws are meant for public

“Except by private or hybrid Bills, Parliament does not legislate for individual cases. Public Acts of Parliament are general in their application; they govern all cases falling within categories of which definitions are to be found in the wording of the statute.... (F) or a judge (who is always dealing with an individual case) to pose himself the question ‘Can Parliament really have intended that the acts that were done in this particular case’ come within a defined category? is to risk straying beyond his constitutional role as interpreter of the enacted law and assume a power to decide at his own discretion whether or not to apply the general law to a particular case.

The legitimate questions for a judge in his role as interpreter of the enacted law are, “How has Parliament, by the words it has used in the statute to express its intentions, defined the category of acts....? Do the acts done in this particular case fall within that description?”

Lord Diplock

Duport Steels Ltd. v Sirs (1980) 1 All ER 529 AT 542.

Quoted by A. R. B. Amerasinghe in “Judicial Conduct, Ethics and Responsibilities - page 286-287.

Short note of appreciation

Just a short note to express my appreciation of your Legal Aid Page in the Daily News of every Friday. I find it very interesting and I now know that we have someone who can answer our frequently asked questions with responsibility.

Thank you once again.

SUGRA NOORDEEN

LAC centres and telephone numbers

Centres Tel.No

01. Head Office 2433618, 5335281

02. Tsunami Regional Center 060-2137153

03. Welikada Prison 5335329

04. Bandarawela 057-2224733

05. Matale 060-2664588/071-4447151

06. Avissawella 060-2362219

07. Ratnapura 045-2226899

08. Negombo 031-5677111

09. Kalutara 034-5628860

10. Gampaha 033-5677998

11. Polonnaruwa 027-2222923

12. Anuradhapura 025-2224465

13. Kandy 081-2388978

14. Kurunegala 037-2229641

15. Galle 091-2226124

16. Hambantota 047-2221092

17. Nuwara Eliya 052-2235260

18. Moneragala 055-2276891

19. Ampara 063-2223496

20. Kegalle 035-2231790

21. Chilaw 032-5672457

22. Akkaraipattu 067-5675333

23. Balapitiya 091-2255753

24. Matara 041-2233815

25. Vavuniya 024-2221899

26. Trincomalee 026-5676023/026-2222293

27. Kalmunai 067-2223710

28. Jaffna 021-2224444

29. Batticaloa 065-2226359

30. Panadura 038-5677100

31. Kuliyapitiya 060-2876323

32. Mahiyangana 055-2258332

33. Mahawa 037-2275075

34. Horana 034-2265244

35. Matugama 060-2444262

36. Attanagalla 033-2297020

37. Dambulla 060-2682238

38. Deniyaya 060-2428006

39. Mawanella 035-2247272

40. Marawila 032-2254443

41. Warakapola 037-2277075

42. Juvenile Court, Bambalapitiya 077-3984722

43. Nugegoda (Gangodawila)

Questions and Answers

New hotline to report child abuse in Sri Lanka

Question: I am a Year Twelve student from a Colombo School. I know of some friends who are subjected to child abuse. They are in need of some kind of support to discuss their problems. Therefore, I wish to know whether there is a new hotline to report such matters. Could you let me know the hotline please.

- M. THUSHARI - Tudella.

Answer: The Sri Lanka Government has set up a new hotline to report cases of child abuses, child labour and about children who are vulnerable to such threats.

This new service is known as ‘Child Helpline’ - 1929. The Child Development and Women’s Empowerment has established the new facility with the intention of preventing child abuse, misusing of children and to build up a coordinating line in order to provide guidance to those children facing various types of problems, and also to supply counselling services to children who feel reluctant to speak of their bitter experiences openly. Needy children can also obtain assistance for education by calling this number.

The special telephone service will initially be activated between 8 a.m. to 4 p.m. and expanded to operate as a 24 hour service later.

The ‘Child Helpline’ telephone service is a well organised network of several organisations such as the National Child Protection Authority (NCPA), Children’s and Women’s Bureau, Probation and Childcare Services Department, the Department of Health, Legal Aid Commission and Child Development and Women’s Empowerment Ministry. The number can be dialled free through fixed lines and mobile networks.

Revocation of Power of Attorney

Question: I went on a holiday to New Zealand for a short stay about six months. Before, I left Sri Lanka, I executed a Power of Attorney in favour of my nephew. I now want to revoke the said Power of Attorney. Can you please advise me how this could be done.

- Rumeshi, Kelaniya.

Answer: You can do so by letter. You have to inform your nephew the date of revocation of the Power of Attorney and you have to publish the said notice in the national newspaper informing that you have already revoked the Power of Attorney.

Registration of birth of Lankan children born outside Sri Lanka

Question: My daughter migrated to France in 2007 with her husband. She gave birth to her first child in France. I now wish to know from you how my daughter could register the birth of her child as the baby was born outside Sri Lanka.

- Mrs. J. Rodriguez, Boralesgamuwa.

Answer: If your daughter wishes to register the birth of her child born in France, which is outside Sri Lanka, the procedure to be followed is given below:

Obtain an application form from -

Sri Lanka Mission in the country of residence.

Application forms could be down loaded from the following website: http://www.immigration.gov.lk/

Documents required:

1. Duly filled application

2. Birth certificate of the child issued by the country of birth.

3. Consular Birth Certificate issued by the Registration General Department of Sri Lanka or a letter issued from the nearest Sri Lankan Mission including following details:

(i) Name of child

(ii) Date of birth

(iii) Sex

(iv) Name of father

(v) Nationality of father

(vi) Maiden name of mother

(vii) Nationality of mother

4. Birth Certificate of the applicant (father or mother).

5. If the applicant is a Sri Lankan citizen by registration, the relevant certificate.

6. Marriage Certificate of the parents.

7. Travel documents and Visas held by parents to prove residence abroad at the time of child’s birth.

8. Declaration that the applicant (father/mother) has not acquired citizenship of a country other than Sri Lanka at the time of child’s birth.

The Citizenship Division will process the application on receipt of same from the respective Mission. Certificate will be sent to the same Mission for onward transmission to the applicant, on finalisation of the registration process.

* If the original Birth Certificate is not in English, an English translation of it certified by the nearest Sri Lankan Mission.

Duly completed application should be forwarded to the Sri Lanka Mission in the country where the child’s birth occurred with the required documents, within a period of one year from the date of birth of the child. If not, a fine is being charged for delay.

Please note all original documents should be supported with photocopies of such documents.

Foreign adoption procedure

Question: I know of a foreign couple who wish to adopt a child (a girl) from Sri Lanka. I know this couple for quite some time and very often they come to see me when they visit Sri Lanka. They have no children and they are very much interested in adopting a child from Sri Lanka. Please let me know the foreign adoption procedure so that I could inform them the correct procedure. Your reply would be greatly appreciated.

- Mrs. G. Thilakasiri, Kotte.

Answer: Unlike local applicants, foreign applicants cannot find children for adopting of their own wish, unless the child is a blood relative. If the foreign applicant is not adopting a child who is a blood relative, a child can be allocated by a receiving home (which has been registered by the Department of Probation and Childcare Services for over 5 years). Specific authorisation by the Commissioner of Probation and Childcare Services is also required. The application procedure will be directly handled by the Department of Probation and Childcare Services.

It is an offence under Sri Lankan Law for the applicants to make any payment (or give any rewards) to any person in consideration of the adoption.

The procedure for adopting a child from a receiving home -

* The foreign applicant should lodge a formal application with the Commissioner of Probation and Childcare Services (the application must be lodged at least one year before a child will be allocated to the foreign applicants).

* An overseas Social Welfare Agency/Department will provide the Commissioner with a home study report on the suitability of the applicants to adopt a child.

* Upon receipt of an acceptable home study report, the Commissioner will identify a suitable child for the foreign applicants and a letter of allocation will be sent from a Sri Lankan Adoption Agency to the foreign applicants.

* The applicants will be required to stay in Sri Lanka for at least 4-5 weeks until the adoption process is complete. During their stay, they will be required to attend an interview at the Department of Probation and Childcare Services.

* If the applicants’ interview is successful, they will be able to see the child and may take the child for a medical examination.

During the District Court proceedings:

- the foreign applicants will be required to attend the proceedings (unless the Court waives this requirements); and

- the Court will consider all relevant circumstances surrounding the adoption including the foreign applicants’ home study report.

If the Court is satisfied with the application, it will issue an Adoption Order.

Upon receipt of an Adoption Order, the adoptive parents should obtain:

- a Certificate of Adoption;

- a Sri Lankan passport for the adoptive child; and

- a visa from the country of the adoptive parents.

(If the child is less than 10 years old, the adoptive parents may be required to provide progress reports of the child to the Department of Probation and Childcare Services.

Letter of resignation and backlog of work

Question: I am a Director of a small Company with a staff of about six working for me. One of the members of the staff who has been with us for about seven years suddenly stayed away from work. Her husband informed us that she was sick. There was nothing heard from her for about 10 days after which she appeared in the office with her letter of resignation. However, she has taken a loan of Rs. 50,000 last month and another loan of Rs. 25,000 this month as she was building a house. No recovery has been made so far. Moreover, there is a whole backlog of work she has not attended to and she has not handed over some very important files in her possession thereby jeopardising our work.

Kindly let me know as to how best I could handle this situation please.

- D. PERERA - Battaramulla.

Answer: If the letter of resignation has been handed over and even if you write to her that her resignation cannot be accepted until -

(a) She hands over the files in her possession.

(b) Clear the backlog of work.

(c) And settles the loan of Rs. 75,000 obtained by her for the construction of her house.

She can still keep away from reporting for work and you are helpless in the matter. She will be entitled to the following claims:-

(1) earned wages for the month.

(2) Payment in respect of the unavailed of annual leave.

(3) Gratuity for the 7 years she has worked. She could apply to the Labour Tribunal for gratuity for the reason you have less than 15 employees in employment.

With regard to your files you should immediately lodge a complaint with the police. As far as your loan is concerned you should send a letter through your lawyer demanding the payment of the loan obtained. If there is no response, you should proceed to file action in the District Court to recover the amount outstanding. If the employee wishes to settle the matter, she might agree to set off her gratuity, earned wages and the payment in respect of the unutilized annual leave against the loan.

How to obtain refund of benefits of a deceased member?

Question: My father passed away recently and he has appointed me as his nominee to refund his EPF benefits. I am his eldest daughter and I am still unmarried. How can I obtain refund of benefits of my deceased father. Please advise me through your valuable Daily News Legal Aid Page.

- JEEWANTHIKA EDIRISURIYA - Athurugiriya.

Answer: If the deceased father has made a valid nomination, the nominee has a right for the benefits. If the deceased member has not made a valid nomination, under the law of inheritance, the legal heirs could request for refund of benefits.

Each of heirs claiming refund of benefits of the deceased member should perfect Form “L” certified by the employer under whom the deceased was last employed together with the undermentioned documents with a request to the Commissioner of Labour.

1. The Death Certificate of the deceased member.

2. If the wife is applying, the Marriage Certificate.

3. Birth Certificates of Children.

4. Birth Certificate of the deceased member when parents apply.

5. In case of minors, details of the guardian in L3 Form (A letter addressed to Commissioner of Labour through the Grama Sevaka and District Secretary certifying the name of the guardian, minor children’s names and their ages).

6. Personal data details of the deceased member in Form L2 certified by the Grama Sevaka and the District Secretary.

Consumer protection

Question: I got a pair of spectacles made on prescription from a reputed Optician in my area. I got this made in January 2006.

One year later when I removed the glasses from the case one lens fell and broke. To see, the frame circling the lens had broken. I immediately took the glasses to the Optician and explained to them what had happened. I wanted them to replace the glass free of charge as the breakage had been due to no fault of mine. It had happened due to the poor workmanship of the frame.

The opticians totally refused to have it done unless I paid for same. They said that they do not guarantee the frame, also I have been using the glasses for more than a year which is a long period.

They also mentioned that if they were to replace frames free of cost they could not be in business and that they have with them quite a lot of broken frames. My contention is that if the frames break in normal use, it is of poor quality. It being so, it is obvious the customers are being cheated by the Opticians with the issue of sub-standard frames. They make their money by way of replacing frames and not honest service.

I wish to know whether the opticians are absolved of liability if the customer has been using the glasses for more than a year, and there is damage to the frame or lens due to no fault of his or hers.

- LESLIE M. R. DASON - Maskeliya.

Answer: We read your question with interest. With regard to your problem we wish to inform you that if there is a guarantee period, you can claim for your spectacles within the guarantee period. In any event 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 or you can meet our Legal Officer of the Consumer Protection Desk, Legal Aid Commission, No. 129, High Court Complex, Colombo 12.

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.

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