Features | Online edition of Daily News

It is relevant in the context of our times to recall the words of Emery Brownell from his book- "Legal Aid in the United States of America." "The forces of totalitarianism are again on the march subjugating more millions of people to the tyranny of stateism. The providing of adequate Legal Aid Services is not a matter of small consequence in the face of so ominous a threat".

Laymon Abbot feared that the alternative to denial of legal aid was that " the fire brand of revolution will be lighted and put into the hands of men who will almost be justified in their revolutionary tactics."

Throughout the ages the disparity between the rich and the poor and the growth of pockets of absolute poverty and the consequent inequalities between man and man as been the origin of political instability , tension and conflict which has threatened peace throughout the world.

During the last three decades educational reforms and the setting up of many schools and universities has improved the standard of literacy and consequently we find a greater degree of awareness among the peoples of the world. But at the same time when people are aware of their rights and if they cannot exercise their rights and have access to justice there is a denial of justice.

This indeed is a sad state of affairs and a day will come when the youth will become completely alienated from society. The writing on the wall is clear. Perhaps I may appear to be a prophet of doom. But it is imperative that we must try to understand the youth and their problems and see to their needs . They will be the future leaders of the world and it is necessary to wean them away from joining subversive groups.

B.G.Kher, former Chief Minister of Bombay, echoed a similar warning at the Bombay Provincial Legal Aid Conference in 1949 where he stated: "Nothing rankles in the human heart more than a feeling of injustice. It produces a sense of helplessness and then bitterness. It is brooded over. It then leads to direct contempt for law, disloyalty to Government and plants the seeds of anarchy.

Legal aid is not a charity but a duty in a democratic state, nay it is a necessity of a very compelling nature if you want to sustain our federal democracy and not allow it to go to pieces by the forces of disorder."

Most modern constitutions have a chapter on Fundamental Rights. Violations of these rights are justiciable. But how many of our people have the financial resources to obtain redress? In most developing countries too Fundamental Rights are enshrined in their constitutions.

But day in and day out, these same rights are violated by the bureaucracy, the Executive and the Legislature and it is only in a few cases that redress is sought. Rights are violated daily but the poor and the helpless have to sit by and suffer in silence because in most developing countries, there are few institutions which can assist them.

We must also keep in mind that though the concepts of the Rule of Law, Equality before the Law and the Equal Protection of the Law are enshrined in our Constitutions, these expressions of liberty and fairplay only exist on paper.

To quote Justice Bhagwathi of India, "Civil and political rights, priceless and invaluable as these are for freedom and democracy simply do not exist for the vast majority of our people. Utter grinding poverty has broken their back and sapped their moral fibre. They have no faith in the existing social and economic system. What civil and political rights are those poor and deprived sections of the community going to enforce?"

Legal Aid not a charity

"Equality before the law in a true democracy is a matter of right. It cannot be a matter of charity or of favour or grace or of discretion." Legal Aid therefore is not a charity. It is the duty of the State to provide Legal Aid.

To secure justice to the destitute, the exploited and hungry, the legal profession has to be activist and dynamic. They have to play an effective and influential role. Legal Aid programmes offer to lawyers and laymen an opportunity to bring about a just and equitable society in which every citizen could be guaranteed social, political and economic justice.

It is here that the social responsibility of the legal profession comes in. For effective implementation of this fundamental principle "attitudinal" change in the carriers of programmes of social justice is imperative.

Unless this is done, the benefits of the legal aid programmes will get lost and people will get alienated. Robert F.Kennedy has rightly pointed out in his address on Law Day in Chicago in the year 1964:

"To the poor man "Legal" has become a synonym simply for technicalities and obstructions, not for that which is to be respected. The poor man looks upon the law as an enemy, not as a friend. For him, law is always taking something away."

The Judge, the Lawyer and the Human Rights' Activist all have to convince the poor, the oppressed and the exploited that the entire legal system exists to protect the ordinary citizen as well, otherwise we will have a situation in our countries where a section of the less affluent people will feel frustrated and bitter against the established order and make attempts to overthrow the government by unlawful means.

Public interest litigation imperative to secure justice

Most Governments pay lip service to Public Interest Litigation and the protection of Human Rights. This type of litigation must be encouraged by the State. The Legal Profession must be activist and dynamic.

The Judiciary too cannot remain content to act merely as an umpire but "it must be functionally involved in achieving the goals of social justice." The Supreme Court "is the guarantor and protector of Fundamental Rights of the people" and it is imperative that the Courts be commended for cutting across the technicalities of the law and red tape and providing justice for the poor and the exploited in a meaningful way.

We too must take a participatory role in protecting Human Rights. Para legal personnel are needed to make legal literacy and legal aid programmes more effective. People with an elementary knowledge of the law could play a useful role in screening cases, preparing petitions, in mediation and following up of Court cases. They could assist in settling minor disputes and imparting legal awareness among the people.

Let us all work towards ensuring that no one, for want of financial resources, is prevented from securing redress from a court of law. Let us make available to the weaker sections of the community and persons of limited means, facilities for asserting legal rights and just obligations and for the avoidance of vexatious and unnecessary litigation.

The indigent in society look to the Lawyers for legal information and free legal aid and, above all, for redress against exploitation. "Right or justice should not be sold, denied or delayed to any person." Let us Lawyers help to build a just and equitable society and let us say in the words of the Magna Carta "to no man will we sell, to no man deny, to no man delay, justice or right."

(Condensed from the Book "A Guide to Human Rights and the Humanitarian Law)

Legal Aid Commission

"To create a society where all deserving Sri Lankans irrespective of their economic or social status, gender, caste, creed or nationality or otherwise-abled have equal access to justice".

Mission

The Legal Aid Commission has undertaken multiple projects to achieve the above vision.

* To establish centres in judicial districts island-wide to give legal aid for litigation and render free advice in legal and other related legal matters.

* To appear in Supreme Court in fundamental rights violations applications either directly or in matters referred to the LAC by the Human Rights Commission.

* To conduct Mediation Training Programs for Public official of different categories, inclusive of prison and police officials and Grama Niladharis

* To give legal advice to the public via Legal Aid Pages in newspapers and over TV channels.

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, 129, Hulftsdorp Street, Colombo 12.

International days celebrated by LAC

March 8 - International Women's Day
March 21 - International Day for the Elimination of Racial Discrimination
April 23 - World Book and Copyright Day
May 15 - International Day of Families
May 31 - World No-Tobacco Day
June 5 - World Environment Day
June 20 - World Refugee Day
June 26 - International Day Against Drug Abuse and Illicit Trafficking & International Day in Support of Victims of Torture
July 11 - World Population Day
October 1 - International Day for Older Persons
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 1 - World AIDS Day
December 3 - International Day for Disabled Persons
December 9 - International
Anti-Corruption Day
December 10 - Human Rights Day
December 18 - International Migrants Day

Questions and Answers

Question: I am person 76 years old and disabled. I read your Legal Aid Page published every Friday with keen interest as some of the questions raised are relating to disabled persons. I would therefore like to know some of the Institutions in Sri Lanka which provides security and assistance to disabled persons. Your kind reply would be greatly appreciated.

Answer: Thank you for the interest shown in reading our Legal Aid Page. The following Institutions in Sri Lanka assist disabled persons to solve their problems, to safeguard them and protect their rights:

(1) The Ministry of Social Services & Social Welfare, Sethsiripaya Battaramulla Telefax No. 011-2863416

(2) Social Security Board, 150A, L.H.P. Building, Nawala Road Nugegoda Tel. 011-2823614/2852947, Fax 011-2823667

(3) Pensions Department, Maligawatte, Colombo 10. Tel. 011-2332346 Fax 011-2432214

(5) Police, Children and Women's Bureau, Police Headquarters Colombo 1 Tel. 011-2444444.

(6) The Legal Aid Commission of Sri Lanka Elders Unit 129, Hulftsdorp Street High Court Complex Colombo 12. Tel. No. 2433618.

Question: Please let me know if there is any pension scheme for persons who are not Government servants. If so, where should I go? Please reply.

M. Riyard, Arangala.

Answer: The Department of Social Services and Social Welfare has introduced a new section called the Social Security Board. The said Board has introduced several pension schemes for persons who are not Government servants. If you need further details, please contact the following address: Social Security Board, 150A, LHP Building, Nawala Road, Nugegoda. Tel. 011-2823614/2852947. Fax 011-2823667

Maintenance Ordinance

Question: Please let me know under the Maintenance Ordinance who can seek maintenance? I await your kind reply.

M.Pathirana, Battaramulla

Answer: Under the Maintenance Act No. 37 of 1999, four categories can seek maintenance. They are: (a) spouse (b) children (c) elderly children (below 25 years) (d) disabled persons.

If you need further details, you may call over at the Legal Aid Commission Head Office, No. 129, Hulftsdorp Street, Colombo 12.

Question: I understand that the International Convention on Bribery and Corruption has been translated into Sinhala. I would like to peruse a copy of this document. Could you please let me know from where I could obtain a copy of this document?

P. Hirantha, Dodangamuwa.

Answer: The International Convention on Bribery and Corruption has been translated into Sinhala Language by the Legal Aid Commission in consultation with the Legal Draftsman. If you need a copy of this document, you could please call over at our Head Office at No.129, Hulftsdorp Street, High Court Complex, Colombo 12.

Statutory holidays

Question: My brother is employed in a Mercantile firm and would like to know the following:

(b) (i) What is the law that is applicable if an employee works on a statutory holiday in a Mercantile firm?

Taranga, Mahawa.

3. Milad-Un-Nabi (Holy Prophet Mohamed's Birthday) 04. Day prior to Sinhala and Tamil New Year.

(b) (i) The Law that is applicable is the Shop and Office Employees Act. If an employee working in a Mercantile firm works on a Statutory Holiday, the Employer is required to grant a paid holiday in lieu prior to the 31st of December of that year or pay an extra day's wage. Strictly speaking in terms of the Act the approval of the Commissioner of Labour is required.

(ii) Where Statutory Holiday coincides with weekly holidays or half holiday, that day would be treated as the Statutory Holiday and the weekly holiday or the half holiday must be allowed on other days within the course of the week or the week thereafter.

Question: I am working in a private company. I am expected to report for work daily at 8.15 a.m. As a result of unavoidable circumstances I go late to work between 8.30 a.m. and 9.00 a.m. and my Employer as a punishment for reporting late has imposed Rs. 500. The entire amount was deducted from November/December salary.

Please advise me,

(d) If not what is the maximum an Employer could recover from the salary at any one time.

Shanaka Tisera, Bangadeniya.

Answer: (a) Yes. The Employer has the right to punish an employee by way of imposing a fine for late attendance at work without reasonable excuse.

(b) No Employer could impose a fine on an employee as a punishment without the consent of the employee and authorized in writing by the Commissioner General of Labour.

(d) The aggregate amount of the deductions made in respect of times at any one time should not exceed 5% of the remuneration earned by the employee during the period during which such fine was imposed.

Selling intestate property

Question: Can the children sell the property worth about Rs. 10 million which belonged to their parents who died in an accident two months ago on an intestate, without going for a testamentary case?

Daya Disanayaka, Ganemulla.

Answer: No. When any person shall die in Sri Lanka without leaving a will, it shall be the duty of the widow, widower, or next of kin of such person, if such person shall have left property in Sri Lanka amounting to or exceeding in value five hundred thousand rupees, within one month of the date of his/her death to report such death to the District Court of the district in which he/she shall have so died, and at the same time to make oath or affirmation or produce an affidavit verifying the time and place of such death and stating if such is fact, that the intestate has left property within the jurisdiction of that or any other, and in that event what Court, and the nature and value of such property.

How can company name be changed

Question: I own a company under my name. I want to find out whether I can change the name of the Company. If so, what is the procedure under the new companies act?

David, Kandy.

Within 20 working day of name change, the Company shall give public notice (Gazette and 1 Newspaper of any language) of the name, etc.

Answer: A Promissory Note is another form of a loan contract. It is in fact a 'promise to pay' where one party agrees to pay a particular sum of money to another either with or without interest. The repayment could take place either on demand or on a particular date.

If the borrower goes into default under a Promissory Note, the lender has the right to institute legal action against the borrower for the amount specified in the Promissory Note.

Promissory Notes are governed by the provisions of the Bills of Exchange Ordinance No.25 of 1927 and its amendments.

Loss of original Power of Attorney

Question: My daughter who is living in France has given me the Power of Attorney in respect of her properties. I have now lost the original Power of Attorney given to me. However I have a copy of the same. The power of attorney was registered in the Colombo Land Registry.

Please advice me through your Daily News Legal Aid Page whether I could obtain the power of attorney.

Alex Sent by Email

Answer: You cannot obtain the original Power of Attorney again. The procedure is after signing the Power of Attorney, the original is given to the respective parties and the relevant Land Registry may keep the copy of the said Power of Attorney.

In order to get a certified copy of the Power of Attorney, you have to write a letter to the relevant Land Registry explaining your reasons. If you have a photocopy of the said document you have to attach the same and apply for a certified copy of the Power of Attorney together with stamps to the value of Rs. 111 (100x10 x1). The relevant Land Registry will thereafter issue you with a certified copy of the Power of Attorney.

June 26 - International Day Against Drug Abuse and Illicit Trafficking & International Day in Support of Victims of Torture

The Bar Association of Sri Lanka and the Ministry of Justice and Judicial Reforms have under Section 5 of the Legal Aid Law No. 27 of 1978 completed their respective appointments to the Commission as follows:-

1. S.S. Wijeratne, AAL (Chairman), President, Child Protection Society of Ceylon.

List of Developmental Legal Aid Desks LAC

Chairman - S.S. Wijeratne
01. Anti-Corruption Desk - Ms. Uthpala Adhikari, AAL & Harshani Balaharuwa, AAL.
02. Apprentice Training Program & Bench & Bar Desk - Ms. Damayanthi Dissanayake, AAL.
03. Child Rights' Desk- Ms. Mahesha de Silva, AAL.
04. Consumer Protection Desk - Ms. Lasanthi Palapathwala, AAL.
05. Disabled Persons Desk - Ms. Kalani A Medagoda,AAL
06. Elders' Right Desk- Ms. Piumi Kumari, AAL
07. Human Rights Bureau and Industrial Relations - Ms.Uma Wijesinghe, AAL.
08. Internally Displaced Persons Desk - Ms. Kirija Nimalatheva, AAL.
09. Migrant Workers Desk - Ms. Lilanthi Kumari, AAL.
10. Prisons Desk - Ms. Thushari Sakuntala, AAL
11. Protection of Women's Rights Desk - Ms. Priyangika Aththanayake, AAL.
12. Public Officers Awareness Desk - Reginold Kumarasiri,
13. School Program & Essay Competition - Ms. Yamuna Kumari, AAL

Need for Legal Aid