Features | Online edition of Daily News

The 1978 Constitution contains a Bill of Rights guaranteeing certain fundamental rights and freedoms which imposes negative limitations as well as obligations on the part of the Government.

The sole and exclusive jurisdiction to hear and determine any infringement of a fundamental rights violation is vested with the Supreme Court by virtue of Article 126 of the Constitution.

A fundamental rights action, justiciable only against executive or administrative action, has to be filed within one month of such infringement following the prescribed procedure set out in the Supreme Court rules.

LAC Chairman S.S.Wijeratne and Director-General Justice Hector S Yapa amongst the invitees adjudicating the Southern Province Talent Competition held recently.

These rules provide that a communication made in writing to the Chief Justice referring to a fundamental right violation should be treated as a petition if such person does not have means to pursue the complaint according to the established procedure.

Such communication would be referred by the Registrar to the Legal Aid Commission or any other organisation providing free legal aid, for the purpose of proceeding with the complaint in accordance with the law.

This provision has been made giving due recognition to the fact that there are socially marginalized people who would otherwise be deprived of the one and only means of protecting their fundamental rights recognised under the Constitution.

Most often, complex procedures, high costs involved and delay, make people give up on the system. In this backdrop, the concept “Equal Access to Justice” came in to being in order to ensure equal protection of the law to all persons guaranteed under the equality clause, which was used as a defining instrument to ensure protection for marginalized people.

The Legal Aid Commission has been in the forefront in providing legal aid to the financially disadvantaged people under this concept.

The rules further provide for the issue of notice on the Attorney-General in compliance with Article 134(1) of the Constitution. According to the established practice in Sri Lanka, the Attorney-General appears on behalf of public officers and objects even in fundamental rights applications except in torture cases.

Non appearance on behalf of police officers in torture cases is commendable indeed. In the case of Herath Banda v Sub Inspector Wasgiyawatte (SC 270/93, SCM 29/11/93) a torture case where leave to proceed has been granted, the counsel for the Petitioner moved to withdraw the matter at the stage of hearing stating that the Petitioner has resolved the differences with the police officer.

The Deputy Solicitor General in his submission took the stand that a violation of a fundamental right, especially the right guaranteed by Article 11 is not a private matter that could be settled or withdrawn. Such benevolent approach to any human right violation is very much required if we are serious in our concerns over human rights violations.

Thus, if the Attorney-General could reconsider his role in other fundamental rights applications, for example to intervene as amicus curiae (i.e. as a friend of the Court) that would definitely promote an advanced the human rights culture in the country.

When considering the current human rights framework, providing free legal aid itself has not proved to be an effective remedy in achieving equal justice for the socially disadvantaged class.

The litigants from the rural areas still find it difficult to travel to Colombo and do the needful due to financial and time constraints. Thus, there is a pressing need to expand human rights jurisdiction to regional level in order to accommodate the concerns of the people from rural areas.

A major breakthrough is the enactment of the ICCPR Act, No. 56 of 2007, with the objective of giving recognition to certain residual civil and political rights not recognised by the Constitution and other operative laws. This Act introduces a new avenue of human rights protection which is justiciable through the High Courts.

This Act contains four main rights based provisions, namely sections 2,4,5 and 6 conferring inter alia; the right to be recognised as a person before the law; entitlements of offenders, rights of children and the right of access to services provided by the State. Other significant aspect is the three months time given to invoke the jurisdiction in the case of an alleged infringement.

It is the view taken here that the ICCPR Act could be utilised to devolve human rights litigation to High Courts, which has become the need of the hour if we are to facilitate equal access for justice for all.

‘Wayamba Sisu Vikum 2009’

Following the successful school talent competition in the Southern Province in 2008, the Legal Aid Commission is launching “ Wayamba Sisu Vikum 2009” among the schoolchildren in the North Western Province.

Students from over 200 National and Provincial schools in the Kurunegala and Puttalam districts would participate in the competition organised under different age categories. Talent competitions will comprise senior, junior essay competitions in Sinhala, Tamil, and English medium.

School drama competition will be on the theme of “Equal Access to Justice” and the poster competition on topical socio legal themes such as Eradication of Domestic Violence, Human Rights Protection at village level, Protection of Elders Rights, Elimination of Violence against Women and Protection of Child Rights.

Representative members of Provincial, National and International sponsors have indicated their willingness to support the Wayamba talent competition to encourage youth leadership in this large province consisting of very remote villages.

The competition would be organised under the guidance of the Provincial Education directorate and the Governor of the North Western Province Tissa Balalla, Attorney at Law who will be extending his good office to this provincial legal awareness program.

The following Legal Aid Centre officers Dharmavijaya Seneviratne, Pradeep Shanthapriya, K. P Jayathilaka, Mrs. Kaushalya Hapuarchchi, Ms Kalpana Rajapakshe and Ms Yamuna Surangika will coordinate the program in Kurunegala, Chillaw, Marawila, Kuliyapitiya, Maho and Polgahawela, respectively.

Tree planting program

The Environmental Promotion Desk of the Legal Aid Commission jointly with the Rotary Club, Colombo West commenced and Island wide school fruit tree planting program in 2008.

The National Environmental Authority, the Ministry of Education and People’s Bank participated and supported the program where student custodians of trees were entrusted with tending the newly planted fruit trees.

This Program (FTPP) commenced with D.S. Senanayake College, Colombo and covered Dudley Senanayake Central College, Dedigama, Eppawela Central College, Gamini National School, Nuwara Eliya, Hedunuwewa Central College, Kotmale and the CPS Child Development Center, Maharagama. Colombo West Rotarians actively participated in these programs inspiring young students to be promoters of environment.

The 2009 FTPP program would commence on February 14, Saturday at the CPS Child Development Center (Girls) at Rukmale at 9.30 a.m. British High Commissioner in Sri Lanka Dr. Peter Richard Hayes who is a committed environmentalist would be the Chief Guest while representatives from Central Environmental Authority and members of Child Protection Society and the Rotary Club Colombo West would be participating.

Questions and Answers

Keeping the peace

Question: When two neighbours make complaints to the police regarding their disputes on several occasions, can the police take any action to control their behavior through the courts ?

Answer: According to the Criminal Procedure Code Section 81, the police can take any action to control such kind of behavior through the courts . The section says that

When ever a Magistrate receives information that any person is likely to commit a breach of the peace or to do any wrongful act that may probably occasion a breach of the peace within the local limits of the jurisdiction of the court of such Magistrate, or that there is within such limits a person who is likely to commit a breach of the peace or to any wrongful act as aforesaid in any place beyond such limits the Magistrate may in manner hereinafter provided ordered to execute a bond with or without sureties for keeping the peace for such period not exceeding two years as the court thinks fit to fix.

Contempt of court

Civil contempt

A civil contempt is the failure to obey a curt order that was issued for another party’s benefit. It is concerned with breaches of court orders or undertakings in civil litigation which originally were for the benefit of one or other of the parties.

A civil contempt proceeding is coercive or remedial in nature because it coerces parties into compliance with its orders or alternatively it may be primarily concerned to punish disobedience - as where time for compliance has assed. In such circumstances deterrence clearly has a role to play.

Where there has been willful disobedience to an order of court and a measure of contumacy on the part of the defendants, then civil contempt, bears a twofold character implying as between the parties to proceedings merely a right to exercise and a liability to submit to a form of civil execution, but as between the party in default and the state, a penal or disciplinary jurisdiction to be exercised by the court in public interest.

That is why proceedings for civil contempt are sometimes described as ‘quasi criminal’ because of the penal consequences that can attend the breach of an order.

Criminal contempt

A ‘criminal contempt’ is an act that obstructs justice or attacks the integrity of the court. Such an act includes contempt in the face of court (i.e. contempt in facie curiae), publication of matter scandalizing the court, acts calculated to prejudice the fair trial of a pending case, civil or criminal, reprisals against those who participate in legal proceedings for what they have done, impeding service of or forging, the process of the court etc (contempt ex facie curiae).

Such contempts are regarded as criminal contempt even if committed in relation to court proceedings.

For example, disruption of court proceedings is regarded as criminal contempt irrespective of whether the proceedings are civil or criminal. The unlawful publication of matter calculated to prejudice the fair trial of a pending case is a criminal contempt case affected is itself civil litigation.

It will therefore be seen that consideration of public policy underlies contempt jurisdiction. They are generally the protection of the administration of justice and the maintenance of the court’s authority.

There lies at the heart of contempt the need for society both to protect its citizens’ rights and to maintain the rule of law. The court’s jurisdiction in contempt is an essential adjunct of the rule of law.

Changing name in Birth Certificate

Question: I was born at Bulathkohupitiya. In the Birth Certificate my name appears as “M.Kasturiarachchi”.

I am now an American citizen, domiciled in the United States. In all my documents, including the passport and citizenship certificate, my name is given as M.Kasture - (abbreviated for convenience).

I intend to apply for Sri Lankan Citizenship and eventually came back home. Having a different name in my Birth Certificate will create problems for me,

Can I change my name in the Birth Certificate to M.Kasturi? If no, please advise to the steps to be taken .

Answer: Under the Birth and Deaths Registration Ordinance, If you are a Sri Lankan you can change the name in your Birth Certificate at any time.

You have to visit the Divisional Secretary’s Office and get the Application Form. Thereafter fill the same and hand it over to the Divisional Secretary’s Office where you were born.

In that procedure you have to submit an affidavit with three documents to prove that you are using the proposed name for the last one year.

Otherwise you have to put a paper advertisement regarding the proposed name and use it for one year.

Thereafter you can change the name. In that case, your Birth Certificate can be amended according to the proposed name. In Cage 13 of your Birth Certificate, your new name will be seen.

Jurisdiction of a provincial High Court

Question: Please let me know how the High Court exercises its jurisdiction. Your kindly reply would be greatly appreciated.

Answer: The Provincial High Courts were established under Article 154 P of the Constitution. A perusal of the provisions of this Article would disclose that a High Court established under the said article has original criminal jurisdiction as well as appellate and revisionary jurisdiction.

(a) Original criminal jurisdiction in respect of offences committed within the Province;

(b) Appellate and revisionary jurisdiction in respect of orders and judgments of the Magistrates courts and Primary courts within the Province;

(d) Issue of Writs of certiorari, prohibition, procedendo, mandamus and quo warranto against any person exercising within the province any power under any law or Provincial Council statute, in respect of any matter set out in the Provincial Council list of subjects in the 13th Amendment;

(e) Appellate and revisionary jurisdiction in respect of orders made by Labour Tribunals within the Province;

(f) Appellate and revisionary jurisdiction in respect of orders made under sections 5 and 9 of the Agrarian Services Act No.58 of 1979 in respect of any land situated within the Province;

(g) Appellate jurisdiction in respect of judgments if small claims courts within the Province; and

Documents to be produced to Registrar of Marriage

Question: I am an American and have decided to get married in Sri Lanka. Therefore I want to know, what documents I have to submit to the Registrar of Marriage in Sri Lanka. Please advise me.

Answer: Marriage can be registered after 4 days of arrival to Sri Lanka. Please contact the relevant Additional District Registrar in Divisional Secretariat Office within the area you are temporary residing in Sri Lanka.

* If you have married earlier either the Divorce Certificate or Decree Absolute issued by the court of law

* If you were married earlier and if your spouse is dead the Death Certificate of your spouse

Protection Order under prevention of Domestic Violence Act.

Question: Please let me know what kind of prohibitions are available to the Respondents under the Domestic Violence Act No 34 of 2005 . Your reply is kindly solicited.

(a) entering a residence or any specified part thereof, shared by the aggrieved person and the respondent.

(d) preventing the aggrieved person who ordinarily lives or has lived in a shared residence from entering or remaining in the shared residence or a specified part of the shared residence;

(f) having contact with any child of the aggrieved person or having contact with such child other than on the satisfaction of such conditions as it may consider appropriate, where the court is satisfied that it is in the best interest of such child;

(g) preventing the aggrieved person from using or having access to shared resources;

(h) contacting or attempting to establish contact with the aggrieved person in any manner whatsoever;

(i) committing acts of violence against any other person whether it be a relative, friend, social worker or medical officer, who may be assisting the aggrieved person;

(k) engaging in such other contact as in the opinion of the court will be detrimental to the safety, health or well being of the aggrieved person or other person who may require protection from the respondent as the court may specify in the Protection Order;

(l) selling, transferring, alienating or encumbering the matrimonial home so as to place the aggrieved person in a destitute position.

Non Government pension scheme

Question: Kindly let me know as to how we could register for the non Government Pension Scheme which is introduced by the government.

Answer: You have to write a letter to the Director, Sri Lanka Social Security Board, LHP Building, 1st Floor, Nawala Road, Nugegoda attaching thereto a photocopy of the Birth Certificate/Identity Card of the disabled child.

For any further assistance you can visit the Legal Aid Commission, Disabled Unit at No.129, Hulftsdorp Street, High Court Complex, Colombo 12.

Community based correction orders

Question: Please let me know what is meant by community based correction order and what is the law applicable for that order ? Your kind reply would be greatly appreciated.

Answer: The Community Based Corrections Act No. 46 of 1999 provides for the imposition of Community Based Corrections Orders (CBCO’s) by Court in lieu of sentences of imprisonment; and for the appointment of a Commissioner of Community Based Corrections and for matters connected therewith and incidental thereto.

A CBCO is an Order made by court which requires an offender to comply with certain conditions stipulated therein and may include a condition requiring him to perform unpaid community work.

If you need further information contact -Community Correction Board, No. 211, Hulftsdorp Street, Colombo 12

How to donate body to Medical Faculty

Question: I wish to donate my body to the Medical faculty after my death. I am living in Colombo. Please help me ?

Answer: As per your wish you can donate your body to the Medical Faculty after your death. Thereafter, a request letter has to be sent to the Medical Faculty to the following address together with a self addressed stamped envelope

Head/ Department of Anatomy,
Faculty of Medicine,
Kynsey Road,
Colombo 08
Tel No 2696243

On the receipt of your letter , the faculty will send you the relevant application forms for completion. Necessary instructions are given as to how the application form should be completed.

The Daily News Legal Aid Page celebrated its third successful year on the January 13, 2009 by publishing a book containing questions and answers during the past three years. This book is available at the Legal Aid Commission, Head Office at No.129, Hulftsdorp Street, High Court Complex, Colombo 12. The book is titled “Legal Aid Questions & Answers”. Price is Rs. 300.

Human Rights

Uma Wijesinghe Head, Human Rights Bureau