Introduction -

Human Rights protection through High Courts

The 1972 Constitution incorporated a chapter on fundamental rights but did not provide for judicial implementation of the Rights. Consequently, fundamental rights in the 1972 Constitution was not justiciable and remained confined to paper.

On the other hand, one of the important innovations in 1978 Constitution was the provisions of fundamental rights in its Chapter III and langauge rights in Chapter and make them justiciable under Article 126 of the Constitution through the Supreme Court of the country. During the past 30 years fundamental rights incorporated in the Constitution became the subject of interpretation and activation by the Supreme Court.

The fundamental rights Chapter in the 1978 Constitution acted as a competent substitute for a separate Bill of Rights found in many Constitutions in the democratic countries in the world. The Indian Constitution from its inception in 1948 had an elaborate Chapter on fundamental rights inclusive of the right to life and more importantly the regional High Courts too were vested with jurisdiction to hear FR Violation cases thus facilitating victims of HR violations all over India to seek judicial redress within their States.

In Sri Lanka, FR Violations came within the exclusive jurisdiction of the Supreme Court holden in Colombo which was an impediment for the indigent victims of HR violation cases to seek effective redress from the Supreme Court by initiating a fundamental rights violation within 30 days of the incident. The poor victims in far away places could not obtain the necessary documents and retain Colombo lawyers within the stipulated period to access justice.

To mitigate this fundamental difficulty, the Supreme Court rules provide for indigent victims of Human Rights Violations to address a letter to the Chief Justice setting out the alleged violation within the period of 30 days. The Supreme Court then assigned such petitions to Human Rights Bureau of the Legal Aid Commission or the Bar Council to take further necessary action.

The ICCPR Act, No. 56 of 2007 which was enacted according to its preamble for the specific purpose to give effect to Civil and Political Rights contained in the International Covenant for which no adequate legislative recognition has yet been granted.

Despite the broad based assertion in the preamble, neither the Constitutional provisions nor ICCPR Act, No. 56 of 2007 or other enactments exhaustively cover the many provisions of the Covenant. In a subsequent opinion the Supreme Court affirmed that Sri Lankan Laws cover the provisions of the Covenants but critical opinion is still divided on the issue.

The ICCPR Act if properly implemented would respond to many inadequacies in the Constitutional Provisions on Fundamental Rights.

In the new Law, the prescription period within which a victim of Human Rights Violation under the Act has to make an application is fixed at 03 months (Section 7 (2)). This will give adequate time for victims to present a petition to the High Court of Sri Lanka holden in a respective judicial zone.

The new Act lays the foundation for a more effective HR protection regime closer to the people. However, like many other good laws, the effectiveness should only be measured after the implementation of the law for which the LAC would initiate action specially through the Regional Legal Aid centres. However, an urgent requirement is the enactment of regulations under section 9 of the Act to give “effect to the principles and provisions of the Act”.

- S.S. Wijeratne

[Questions and Answers]

Death Donation Scheme

Question: I am a Life Member of a certain death donation scheme. I paid Rs. 1,000 in 1997 to obtain the life membership. I possess a receipt for the payment made by me signed by the then Treasurer.

After a lapse of 10 years the association has informed me that my payment is not accurate and have asked for another sum of Rs. 1,000 to make it a legal payment.

I wish to know whether a registered Death Donation Society has the right to ask for another sum to legalize the life membership already awarded to me.

I shall thank you to answer my question in the Daily News.

- S. H. Gamage, Dehiwela.

Answer: Your information is not sufficient to answer the question. However, your rights and privileges are governed by the terms and conditions of your particular society. Sometimes according to the terms and conditions of the society, the authorized persons can make amendments to the Constitution.

If you need clear advice, please call over at our Head Office at No. 129, Hulftsdorp Street, High Court Complex, Colombo 12 along with the necessary documents. Our Head Office is opened from Monday to Friday from 8.30 a.m. to 4.30 p.m.

Disciplinary inquiry matter

Question: I wish to submit the following details for your kind attention with a view to obtaining your legal advice and assistance.

I was attached to the University Service for eleven years and my services were terminated by the University Grants Commission after holding a formal disciplinary inquiry. As I was not satisfied with the decision of the University, I made a complaint to the political victimisation of the Ministry of Education and the political victimisation committee advised the University Grants Commission to reinstate me to the University service.

Since the UGC did not reinstate me, I made a complaint to the Public Petition Committee of the Parliament of Sri Lanka who inquired about my complaint and advised the UGC on 06th December 2006 and 13th May 2008 to reinstate me in accordance with the decision of the political victimisation committee but they are not implementing that decision too. I shall be thankful to you if you would kindly advise me what action I could take on this matter.

- L. N. De Zoysa, Ratmalana.

Answer: The information given by you is not sufficient to answer your question. To give you proper legal advice, kindly call over at our Head Office, No. 129, Hulftsdorp Street, High Court Complex, Colombo 12 with relevant documents. Our Office is opened from Monday to Friday from 8.30 a.m. to 4.30 p.m.

Activities for which license is required

Question: In our society there are so many who are engaged in various business activities which affects environment and causing environment pollution.

Would you kindly let me know the prescribed activities for which a license is required under the Environmental Authority Act. An early reply would be greatly appreciated.

- M.S. Pathirana, Thalawatugoda

Answer: Under the National Environmental Act No. 47 of 1980 as amended by Act Nos. 56 of 1988 and 53 of 2000 (Government Extraordinary Gazette No. 1533/16 of 25.01.2008) a license is required for the following prescribed activities:-

1. Chemicals manufacturing or formulating or repacking industries.

2. Soaps, detergents, softener or any other cleansing preparations manufacturing industries having a production capacity of 1,000 kilograms per day or more.

3. Bulk petroleum liquid or liquefied petroleum gas storage or filling facilities having a total capacity of 150 or more metric tons excluding vehicle fuel filling stations.

4. Industries involved in the use of fibreglass as a new material where 10 or more workers are employed.

5. Synthetic rubber, natural rubber manufacturing or processing or rubber based industries excluding industries which manufacture less than 100 kilograms of ribbed smoke rubber sheets per day.

6. Activated carbon or carbon black manufacturing industries or charcoal manufacturing industries having a production capacity one or more metric ton per batch.

7. Industries involved in manufacturing extracting or formulating Ayurvedic, Indigenous medicinal products where 25 or more workers are employed.

8. Chemical fertilizer manufacturing, formulating, processing or repacking industries.

9. Pesticides, insecticides, fungicides and herbicides manufacturing, formulating or repacking industries.

10. Oil (mineral oil or petroleum) refineries.

11. Dye and dye intermediate manufacturing or formulating industries.

12. Paints (emulsion or enamel), inks, pigments, varnish, polish manufacturing or formulating industries.

13. Petrochemical (basic or intermediates) manufacturing or formulating industries.

14. Industrial gas manufacturing, processing or refilling industries.

15. Asphalt processing plants.

16. Industries involved in the manufacture of polymers or polymer based products (i.e. polyethylene, polyvinyl chloride (PV), polyurethane, polypropylene, polyester, nylon, polystyrene, resins, fibreglass or other man-made fibres, etc) or polymer or polymer based products, recycling industries.

17. All types of tyres, tubes manufacturing or tyre retreading industries.

18. Industries involved in manufacturing or reconditioning of batteries.

19. Any industry involved in the use of asbestos fibres as a raw material.

20. Industries involved in manufacturing, extracting or formulating pharmaceuticals or cosmetic products including intermediates.

21. Adhesives manufacturing industries excluding natural gums.

22. Match sticks manufacturing industries and explosives manufacturing or formulating industries.

23. Batik industries where 10 or more workers are employed.

24. Textile processing (i.e. bleaching, dyeing, printing) industries or garment washing industries or textile sand blasting industries or commercial laundries where 10 or more workers are employed.

25. Tanneries.

26. Leather finishing industries having effluent generating operations.

27. Jute processing industries.

28. Industries involved in bleaching or dyeing of natural fibre or natural fibre based industries where 25 or more workers are employed.

29. Power looms having 25 or more machines or power looking with sizing activities.

30.Sugar manufacturing industries or sugar refineries.

31. Fermentation industries (Distilleries, Breweries) or alcoholic beverages bottling plants or bottling plants having bottle washing operations.

32. Food manufacturing and processing industries including bakery products and confectioneries where 25 or more workers are employed.

33. Abattoirs.

34. Coconut oil or cinnamon oil extraction industries where 25 or more workers are employed.

35. Plants or animal oil/fats extraction industries having production capacity of 10 litres or more per day excluding coconut oil and cinnamon oil extraction industries.

36. Instant tea or coffee processing industries.

37. Non-alcoholic beverages manufacturing industries where 25 or more workers are employed.

38. Desiccated coconut mills or coconut processing industries where 10 or more workers are employed.

39. Rice mills having wet process and having a production capacity of 5,000 kilograms or more per day.

40. All hatcheries or poultry farms having 2,500 or more birds or piggery, cattle, goat farms having animals 50 or more or having rating *for mixed farming 2,500 more. (*Rating for Mixed Farming = No. of Birds+50x (No of pigs+No. of cattle + No. of goats).

For further details you can contact the Central Environment Authority, “Parisara Piyasa”, No. 4, Denzil Kobbekaduwa Mawatha, Battaramulla, Tel. Nos. 2872278, 2876641.

(To be continued in next week’s Legal Aid page)

Victims of Rape

Question: In cases where female victims of rape have occurred, we are aware that a complaint should be made to the police. But most of the time the police do not carry out their duties in favour of the victims. In such cases where can they poor victims go to?

- M. Edirisuriya, Nattandiya

Answer: Normally in a case of rape, a complaint has to be made to the police in your area. If the police officials do not act as per your request, then you can make a complaint to the higher officials in the police (ASP, SSP, etc). Otherwise you can obtain relief from the following Institutions:-

* Police, Children and Women’s Bureau, Whiteaways Building, No. 25, Sri Baron Jayathilaka Mawatha, Colombo 1

Tel. No. 011 2444444 (24 hours in service)

* Women’s Protection Desk/Child Rights Desk

Legal Aid Commission, 129, Hulftsdorp Street, High Court Complex, Colombo 12

Tel. Nos. 011 2433618

* National Center for Victims of Crime

Superior Courts Complex, Colombo 12

Tel. No. 011 2391777

Disciplinary inquiry matters

Question: I wish to submit the following details for your kind attention with a view to obtaining your legal advice and assistance to me.

I was attached to the University Service for eleven years and my services were terminated by the University Grants Commission after holding a formal disciplinary inquiry.

As I was not satisfied with the decision of the University, I made a complaint to the political victimisation of the Ministry of Education and the Political Victimisation Committee advised the University Grants Commission to reinstate me to the University service.

Since the UGC did not reinstate me, I made a complaint to the Public Petition, Committee of the Parliament of Sri Lanka who inquired my complaint and advised the UGC on 06th December 2006 and 13th May 2008 to reinstate me in accordance with the decision of the Political Victimisation Committee but they are not implementing that decision too.

I shall be thankful to you if you would kindly advise me what action I could take on this matter.

- L. N. De Zoysa, Ratmalana

Answer: The recommendations given by the abovementioned Committees are not enforceable through the Court of Law.

For further legal advice in this matter, kindly call over at our Head Office, No. 129, Hulftsdorp Street, High Court Complex, Colombo 12 with relevant documents. Our Office is opened Monday to Friday from 8.30 a.m. to 4.30 p.m.

New pension scheme for disabled

Question: Please let me know if there is any pension scheme for disabled persons who are not entitled to get a government pension? If so, kindly let me know from where to get more information regarding this matter.

- Sirimewan, Member from the Blind School

Answer: Yes. The new pension scheme was introduced by the Government called the “Samaka Diriya”. You can obtain further details from the address given below:-

Sri Lanka Social Security Board, 1st Floor, L. H. P. Building, 150A, Nawala Road, Nugegoda

Tel. Nos. 2823614, 2852947, 2852958

Fax Nos. 2823667, 2823669.

Please note that if you could send a stamped self-addressed envelope along with your request letter and copy of Birth Certificate/National Identity Card to the address given above, they will send you the all relevant documents and information for your completion and return to them.

Stamp duty on documents

Question: Could you kindly let me know the stamp duty on the following documents:-

(1) Affidavits

(2) Any Policy of Insurance

(3) Any Promissory Note

(4) Any instrument relating to lease or hire of any property.

(5) Any receipt or discharge

I look to your answer in your weekly Daily News Legal Aid page which is rendering a valuable service to the general public.

- M. de Silva, Mattegoda.

Answer: Under the Stamp Duty (Special Provisions) Act No. 12 of 2006 (Gazette Extraordinary No. 1465/19), the stamp duty on the documents you have requested for are given below:-

(1) Any Affidavit Rs. 25.00

(2) Any Policy of Insurance For every Rs. 1,000 or part thereof of the aggregate of the premia payable on the Policy 00.50

(3)Any Promisory Note For every Rs. 1,000 or part thereof 01.00

(4) Any instrument relating to lease or hire of any property

(a) For every Rs. 1,000 or part thereof of the aggregate lease or hire including any premium, payable for the whole term comprised in the lease shall be deemed to be the aggregate of the hire or lease payable for the first twenty years of such term: 10.00

(b) For every Rs. 1,000 or part thereof of the aggregate

among payable under a Hire Purchase Agreement entered into under the Consumer Credit Act No. 20 of 1982 10.00

(5) Any Receipt or discharge

(a) given for any money or property:

(other than remuneration referred to in paragraph (b) hereunder) among to - - Rs. 1,000 or above, but less than Rs. 50,000 for every - Rs. 1,000 or part thereof 1.00

(b) Rs. 50,000 or above 50.00

Can persons printing or publishing any matter in certain cases be punished?

Question: My wife has filed a domestic violence case in the Magistrate’s Court against me. I am a somewhat popular person in Sri Lanka.

As such, I wish to know whether any persons printing or publishing any matter in respect of the said case can be punished?

I await your early reply.

- Name not given, Colombo 5.

Answer: Under the Prevention of Domestic Violence Act No. 34 of 2005, any person who prints or publishes -

(a) the name or any matter which may make known the identity of an applicant or a respondent in an application under this Act: or

(b) any matter other than a judgement of the Supreme Court or Court of Appeal, in relation to any proceeding under this Act, in any court.

Shall be punished with imprisonment of either description for a term which may extend to two years or to a fine or to both such imprisonment and fine.

LAC centres Phone numbers

Centre                    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 027-2222293
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 021-2224444/077/735910
29. Batticaloa 065-2226359
30. Panadura 038-5677100
31. Kuliyapitiya 037-2284611
32. Mahiyangana 055-2258332
33. Mahawa 037-2275075
34. Horana 034-2265244
35. Mathugama 060-2444262
36. Attangalla 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 2507687
43. Nugegoda 2809068
44. Welimada 060-2577019
45. Kantalai 077-4444260
46. Tambuttegama Tel. not fixed yet

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, Hulftsdrop Street
Colombo 12.
Email: [email protected]
Website: www.lawaid.org