Legal Aid Commission

Access to Justice and Rule of Law

First among rights is that which guarantees all others: access to justice and the rule of law. Legal empowerment is impossible when, de jure or de facto, poor people are denied access to a well functioning justice system.

Where just laws enshrine and enforce the rights and obligations of society, the benefits to all, especially the poor, are beyond measure. Ensuring equitable access to justice, though fundamental to progress, is hard to achieve.

Even if the legal system is technically inclusive and fair, equal access to justice can only be realized with the commitment of the State and public institutions. Legal empowerment measures in this domain must:

* Ensure that everyone has the fundamental right to legal identity, and is registered at birth;

* Repeal or modify laws and regulations that are biased against the rights, interests, and livelihood of poor people;

* Facilitate the creation of State and civil society organizations and coalitions, including paralegal who work in the interest of the excluded;

* Establish a legitimate state monopoly on the means of coercion, through, for example, effective and impartial policing;

* Make the formal judicial system, land administration systems, and relevant public institutions more accessible by recognizing and integrating customary and informal legal procedures with which the poor are already familiar;

* Encourage courts to give due consideration to the interests of the poor;

* Support mechanisms for alternative dispute resolution;

* Foster and institutionalize access to legal services so that the poor will know about laws and be able to take advantage of them;

* Support concrete measures for the legal empowerment of women, minorities, refugees and internally displaced persons, and indigenous people.

(Report of the Commission on Legal Empowerment of the Poor)

Legal Aid Book Mark Day, July 7

The Legal Aid Commission of Sri Lanka was established by Legal Aid Law No. 27 of 1978. The Law was certified on July 7, 1978. The Legal Aid Commission (LAC) which provides legal assistance to deserving persons has established 49 centres Islandwide with the support of the Ministry of Justice. The LAC celebrated its 30th anniversary in 2008.

Legal Aid Day which falls on Sunday, July 7, 2009 will be celebrated with the Legal Aid Book Mark Day.

Law Week

Law Week 2009 organized by the Bar Association of Sri Lanka (BASL) on the theme 'People's Rights to Social Justice' and an exhibition and free Legal Aid program will be held on June 27 and 28 from 9 am to 5 pm at the High Court Complex, Hulftsdorp, Colombo 12.

Send your questions to the Secretary BASL, Colombo 12.

Legal awareness for Wayamba schoolchildren

The Legal Aid Commission for the past few years has conducted legal awareness programs and competitions in the country. For two years from 2005 islandwide annual school competitions were conducted in Sinhala, Tamil and English.

The competition was supported by late President's Counsel Anil Obeysekere and thereafter Senior Attorney Asoka de Silva who were the then Chairmen of the Sri Lanka Telecom.

In 2008, due to non-availability of sponsor support for any island wide program, school law competitions with 168 schools participating were held in the Southern Province.

The Awards Ceremony was held in November 2008 under the distinguished patronage of Minister of Irrigation and Water Management and Ports and Aviation Chamal Rajapaksa. The People's Bank supported the program by giving valuable books to be given as prizes.

This year's program covers nearly 160 schools in the North Western Province. Preliminary oratory and poster competitions have already been conducted.

The final competitions and awards ceremony will be held on July 17 in Kuliyapitiya under the patronage of Anura Priyadharshana Yapa, Minister of Mass Media and Information and Governor of the North Western Province, Tissa Balalla and both respected senior Attorneys-at-Law who practise in Kuliyapitiya and Kurunegala respectively.

Access to justice program of the UNDP would be a co-sponsorship of the legal awareness activities.

Legal Aid Lawyers Conference June 18-21

Chief Justice Asoka de Silva will be inaugurating the first ever Legal Aid Lawyers Conference in Sri Lanka organized by the Legal Aid Commission on June 18 at 2.00 p.m. at the BASL Auditorium. Attorneys-at-Law from 60 Legal Aid Centres islandwide are expected to participate.

The Inaugural ceremony at the BASL Auditorium will in addition to the Chief Guest be addressed by the Secretary, Ministry of Justice and Law reforms Suhada Gamlath, UNDP Resident Representative Douglas Keh, Secretary, Ministry of Constitutional Affairs and National Integration and Coordinator, Access to Justice Program Mrs.Malkanthi Wickremasinghe.

LAC Chairman S.S.Wijeratne will make the introductory remarks. The work program of the training conference which to be held at the Hector Kobbekaduwa Agrarian Research and Training Institute is as follows.

Opening session - June 18

Venue: Bar Association Auditorium.
2.00 p.m. - 2.15 p.m.: Lighting of the oil lamp and 1 min. silence.
2.15 p.m. - 2.45 p.m.: Inauguration speech and programme overview - S.S. Wijeratne, Chairman, Legal Aid Commission.
2.45 p.m. - 3.15 p.m.: Address by the chief guest - Chief Justice A. N. de Silva, .
3.15 p.m. - 3.30 p.m.: Address by Suhada Gamlath - Secretary to the Ministry of Justice.
3.30 p.m. - 3.45 p.m.: Address by Douglas Keh - Country Director, UNDP
3.45 p.m. - 4.00 p.m.: Address by Malkanthi Wickramasinghe - the Secretary to the Ministry of Constitutional Affairs and National Integration, Country coordinator, UNDP
4.00 p.m. - 4.15 p.m.: Address by Mr. Dayaratne - President, Bar Association of Sri Lanka
4.15 p.m. - 4.30 p.m.: Human Rights Based Approach to Access to Justice - Sharmeela Rassool, National Project Coordinator, Equal Access to Justice Project
4.30 p.m. - 5.00 p.m.: Refreshment and Adjournment

Workshop - 19th June 2009
Session I: Rights Based Approach to Legal Empowerment
Venue: Hector Kobbekaduwa Agrarian Research and Training Institute
Rapporteur: A.C. Rizwan
7.30 a.m. - 8.00 a.m.: Breakfast and Registration
8.00 a.m. - 8.30 a.m.: Role of Volunteerism in Legal Empowerment. Speaker: S.S. Wijeratne, Chairman, LAC
8.30 a.m. - 10.00 a.m.: Human Rights and Constitutional and Public Law Remedies. Speaker: Hon. Saleem Marsoof, Judge of the Supreme Court
* Fundamental Rights and Remedies
* Executive and Administrative action
* Fundamental Rights jurisdiction under Article 126
* Parties, Procedures and Remedies
Articles 11, 12, 13 and 14
10.00 a.m. - 10.15 a.m.: Refreshments
10.15 a.m. - 11.15 a.m.: Prerogative Remedies
* Natural Justice and Judicial Review
* Certiorari, Prohibition and Mandamus
Restrictions on remedies
Session II: Family Law - Rights of Women, Children and Elders
11.15 a.m. - 12.30p.m.: Right to Family, ICCPR Act and related aspects. Speaker: S.S. Wijeratne, Chairman, LAC
* International perspective
* Domestic Laws
Challenges ahead
12.30 p.m. - 1.30p.m.: Lunch Break
1.30 p.m. - 3.00 p.m.: Procedural Aspects in Domestic Violence and Maintenance cases. Speaker: Damayanthi Dissanayake, AAL
* Domestic Violence Act, Maintenance Act
* Drafting Applications
Procedural aspects
3.00 p.m. - 5.00 p.m.: Juvenile Justice system in Sri Lanka. Speaker: Hon. Srinithy Nandasekaran, Judge of the Juvenile Court
* Statutory provisions on children (CYPO, EWYPO,ICCPR, NCPA)
* Juvenile justice under Children and Young Persons Ordinance
* Children in need of care and protection
Who can initiate actions
5.00 p.m. - 5.15 p.m.: Tea Break
5.15 p.m. - 6.00 p.m.: Motivation and Adjournment
Workshop - 20th June 2009
Session I: Important Aspects in Civil Litigation
Venue: Hector Kobbekaduwa Agrarian Research and Training Institute
Rapporteur: Pradeep Shanthapriya.
Speakers: Manohara De Silva, PC, Rohan Sahabandu, AAL, Uditha
Egalahewa,AAL, Thisath Wijegunawardena, AAL
7.30 a.m. - 8.00 a.m.: Breakfast
8.00 a.m. - 9.00 a.m.: Drafting Civil Pleadings
* Plaints and Answers
* Labour Tribunal Applications
Petitions of Appeal, Revision Applications,
Appeals not withstanding lapse of time.
9.00 a.m. - 10.45 a.m.: Procedural aspects
* Compliance with Sec. 461
* Listing of Witnesses and Documents
* Sec. 35 procedural aspects
* Framing of issues
* Amendment of Pleadings
Writ pending Appeals
10.45 a.m. - 11.00 a.m.: Refreshments
11.00 a.m. - 12.30 p.m.: Civil Trials
* How to lead evidence
* How to mark a document
Points to remember in cross-examination
12.30 p.m. - 1.30 p.m.: Interim Injunctions and Stay Orders
* When to apply
How to issue notice
1.30 p.m. - 2.30 p.m.: Lunch Break
Session II: Criminal Law - Rights and entitlements of accused
Moderators: Mr. Upali Gooneratne,AAL, MS. Ayesha Jinasena, SSC
2.30 p.m. - 3.30 p.m.: Concept of Bail; Before and After the Bail Act
Speaker: Justice Hector S. Yapa, Director General, LAC
* Main features of the Bail Act
Procedural Aspects
3.30 p.m. - 5.00 p.m.: Criminal Defence
Speaker: U.R. De Silva, AAL, Secretary, BASL
* Entitlements of an accused
* Art of cross examination
5.00 p.m. - 5.15 p.m.: Tea break
5.15 p.m. - 6.00 p.m.: Motivation and Adjournment
Workshop - 21st June 2009
Session I: Reflections on Victim and Witness Rights
Venue: Hector Kobbekaduwa Agrarian Research and Training Institute
Rapporteur: R.P. Wijetunga
7.30 a.m. - 8.00 a.m.: Breakfast
8.00 a.m. - 9.30 a.m.: Victims and Witness Protection Law. Speaker: Palitha
Fernando, PC, Solicitor General, AG's Department
* Victim and witness protection Bill
* Leading of evidence by way of audio-visual link
* Rights of victims and witnesses
* Importance of victim assistance
Session II: Civil Documentation - Right to be recognized as a Person before the law
9.30 a.m. - 10.15 a.m.: Important procedural aspects in obtaining civil
documentation (NID, Birth, Death, Marriage Certificates, Passports)
Speaker: Kalani Medagoda, AAL
* Procedure for obtaining new documents
* Procedure for obtaining lost documents Alterations to documents
10.15 a.m. - 10.30 a.m.: Refreshments
10.30 a.m. - 11.30 a.m.: Administration of Legal Aid. Speaker: Nelum

Gamage, Consultant, LAC
* Best practices in Administration
* Prisons project
11.30 a.m. - 12.30 p.m.: Lunch and Conclusion

Wayamba Sisu Udanaya

Following the successful school talent competition of the Southern Province in 2008, the Legal Aid Commission is launching “Wayamba Sisu Udanaya 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 organized under different age categories.

Talent competition 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, social, 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 awards ceremony will be held on July 10 in Kurunegala. The following Legal Aid Centers are coordinating the program in Kurunegala, Chilaw, Marawila, Kuliyapitiya, Maho and Polgahawela.

Questions and Answers

Wages Board for hotel, catering and garment manufacturing trades

Question: I thank you for the answer published in the Daily News of 01.05.2009 stating that wage increases have been granted to the Wages Boards for garments manufacturing and the hotel and catering trades. Could you please let me know the rates for these two trades from 01.09.2008?

S. Piyasena, Wattala.

Answer: The rates are as follows:

Hotel and Catering Trade

Year of Grade I Grade II Grade III Grade IV Grade V

employment
1st year 5,750.00 6,000.00 6,250.00 6,500.00 6,750.00
2nd year 5,850.00 6,125.00 6,400.00 6,675.00 6,950.00
3rd year 5,950.00 6,250.00 6,550.00 6,850.00 7,150.00
4th year 6,050.00 6,375.00 6,700.00 7,025.00 7,350.00
5th year 6,150.00 6,500.00 6,850.00 7,200.00 7,550.00

Garments Manufacturing Trade
Year of Grade 1A Grade 1B Grade 2 Grade 3 Grade 4
Grade 5
employment
1st year 6,750.00 6,500.00 5,850.00 5,815.00 5,750.00
4,200.00
2nd year 6,950.00 6,675.00 6,000.00 5,940.00 5,850.00
3rd year 7,150.00 6,850.00 6,150.00 6,065.00 5,950.00
4th year 7,350.00 7,025.00 6,300.00 6,190.00 6,050.00
5th year 7,550.00 7,200.00 6,450.00 6,315.00 6,150.00

Application to tribunal to call a witness

Question: I was employed as an Accountant for 30 years in a leading Company in Colombo. I was asked to retire on reaching the age of 55. I filed action in the Labour Tribunal. The case was closed by me. My case would fail if I do not call a witness to prove that the Company has employed others beyond the age of 55. I made an application to Tribunal to call a witness. The Company is objecting to my application. Please advise me on the Law.

M.Niyaz, Modera.

Answer: There is no procedure laid down for proceedings before a Labour Tribunal like the Civil Procedure Code and the Criminal Procedure Code.

The Industrial Disputes Amendment Act No 32 of 1990 provides for making regulations to prescribe the procedure to be observed by a Labour Tribunal. Up to now no regulations have been made. The Tribunal formulates the procedure to be followed by it.

The Tribunal's duty under the Law is to make all inquiries it considers necessary and make a just and equitable order. In the exercise of its duty it can permit you to call a witness.

This question was decided by Supreme Court in Shahul Hameed Kihar Mohamed vs W.M. Gunapala S.C 49/93. H.C Uva 29/91 LT Badulla No 5/15113/83 reported in Labour Tribunal Journal Vol 1 part 9 pages 107-111.In this case the Labour Tribunal permitted the workman to call a witness after each party had closed the case for the purpose of proving that the applicant was employed as a watcher.

The High Court in appeal stated that the Tribunal was right in permitting the workman to call a witness after the case was closed. In the appeal to Supreme Court J/Kulatunge stated as follows

"I am also of the view that the conduct of the Tribunal in permitting the respondent (workman) to call evidence after he had closed his case is unobjectionable. It is the duty of the Tribunal to hear all evidence without being hamstrung by technicalities. The calling of additional evidence has not caused prejudice to the appellant."

When is an employee entitled to payment of benefits under employees' trust fund?

Question: When is an employee entitled to payment of benefits under the Employees' Trust fund? You kind advice is greatly appreciated.

M.Attanayake, Kesbewa

Answer:
i. on termination of employment.
ii. An employee is not entitled to withdraw monies more than once in a period of five years.
iii. The five years rule will not apply when employment is terminated due to disablement arising out of accident or disease.
Disablement means cessation of employment by reason of a permanent and total incapacity for work and certified by a Registered Medical Practitioner to be unfit for work any longer for that reason.

iv. On death of an employee the monies lying to the credit of the employee is paid to a nominee and if there is no nominee to the next of kin.
v. The five year rule does not apply.

(a) When a member is over 60 years of age.

(b) When satisfactory proof is shown to state that he is leaving Sri Lanka with the intention of not returning or for permanent residence abroad.

vi. When an employee takes up pensionable employment,
(a) In Public Service.
(b) Local Government Service.
(c) District Service.

He is entitled to the monies lying to his credit. (Sec. 23(2) of the Amendment Act No.47 of 1988.)

Payment of gratuity and compensation

Question: I was working in an NGO in Colombo 05 for 30 years. On reaching the age of 55 I withdrew my EPF and Gratuity but I was allowed to continue in employment without a break, up to the age of 59.

There are others who are employed till 60. My services were terminated on 31.12.2008.

EPF was paid to me from the age of 55 to the age of 59. I asked for Gratuity and compensation for unjustified termination of employment. The Company has rejected my request for Gratuity and compensation. I seek your kind advice in this matter.

S.Perumal, Athurugiriya.

Answer: When there is continuity of employment without a break, the employer is liable to pay Gratuity at the end of the period of service after deducting Gratuity already paid. The Court of Appeal Judgement in the following cases explains the correct position in Law.

(i) Finance Co Ltd vs. K.D.S.S Kodipilli and 3 others in CA1111/2003. Held that "In determining the continuity of service and to determine the obligation cast by Law upon the employer under the Gratuity Act the acceptance of Gratuity will not have a bearing".

(ii) In the Associated Newspapers of Ceylon Ltd vs. Abayasinghe and 3 others CA 2077/2004 CA minutes 28.07.2006 Held where an employee was appointed to the same post after retirement even on a contractual basis at the end of his service he is entitled to a Gratuity calculated on the basis of entire years of service.

(iii) In the recent Judgement of the Court of Appeal in Colombo Metropolitan Bus Co Ltd vs. SA Nimal Sarana Tissa commissioner of Labour in CA writ application No 143/2003 decided on 12.02.2007 the above two Judgements are cited and it was held that although the employees were given new letters of appointment, they continued in employment without a break in service the employer is liable to pay Gratuity for the entire period of service after deducting the Gratuity already paid.

These three judgements were delivered by Justice S.Sriskandarajah of the Court of Appeal.

Regarding termination of your employment you can make a complaint to the Commissioner of Labour, Termination Unit, 7th floor Labour Secretariat, Colombo 05. Termination of your employment has been done on non-disciplinary grounds.

The Commissioner of Labour will take action to recover compensation to you under the Termination of Employment Special (Provisions) Act No 45 of 1971.

You can also apply to Labour Tribunal No 01 Additional, 136 Vauxhall Street, Colombo 02 for unjustified termination of employment. Application to the Labour Tribunal will have to be made within (06) six months of the date of termination of employment. You have stated that your services were terminated on 31.12.2008. You should therefore make an application to the Labour Tribunal before 30.06.2009.

Can weekly holidays of an office employee be accumulated?

Question: Can weekly holidays of an office employee be accumulated? Your kind advice is solicited.

L.Dabare, Kottawa

Answer: The answer is 'Yes'. Weekly holiday in respect of four consecutive weeks in a month shall be allowed in accumulation any time that month with the approval of the Commissioner of Labour. In lieu of two half holidays one full holiday can be allowed.

Consumer Affairs Authority

Question: Please let me know how the Consumer Affairs Authority entertains customer complaints and how do they inquire into the said complaints. I await your kind reply. P. Shanthi, Maharagama.

Answer: The Consumer Affairs Authority (CAA) receives complaints on a wide range of products and services. The objective of providing this service is to assist the aggrieved consumers to settle their problems in purchasing goods or obtaining services in the market place.

The CAA can inquire into complaints on goods as well as services. CAA is empowered to inquire into complaints regarding the production, manufacture, supply, storage, transportation or sale of any goods and to the supply of any services which does not conform to the standards and specifications determined by the Authority.

More over Authority can inquire into complaints regarding the manufacture or sale of any goods which does not confirm the warranty or guarantee given by implication. Consumer Affairs Authority carries out investigations based either upon its own motion or on any complaint/requests made by any consumer or organization of consumers.

Individual consumer or any organization of consumers can make complaints or can provide information on erroneous trade practices. Many of the matters under dispute have been settled either through direct written communication or through discussion and verbal negotiation with the relevant parties to the dispute.

Any complaint to this effect may be sent to:

Director General, Consumer Affairs Authority, No. 27, Vauxhall Street, Colombo 2.

When was Employees' Trust Fund established?

Question: When was the Employees' Trust Fund established? What was the date of commencement of liability to this fund? I am very much keen to know this answer through your valuable Legal Aid Page.

S.Pathirana, Wadduwa.

Answer: This fund was established by the Employees Trust Fund Act No 46 of 1980. Liability to contribute to the Fund commenced as follows:-

(i) From 1/3/1981 to employers employing not less than 150 persons.

(ii) From 1/9/1981 to employers employing 50 employees or more.

(iii) From 1/1/1982 to employers employing one employee or more.

Change of father's name in child's Birth Certificate

Question: I had an affair with a university student and subsequently gave birth to a child. After the child's birth he went away and was not living with me. However, my child's Birth Certificate indicates his surname as father.

We did not have any legal marriage. Later I married another person who cares this child like his father. My husband now wants to include his name as child's father. Is this possible? Please advice.

P. Nissanka, Mattakkuliya.

Answer: Yes. Your husband can include his name as the child's father. However, to do this, you have to file an adoption case in the District Court. You need to explain the current situation and can include your husband's name as the child's father. Thereafter your child will be issued a new Birth Certificate indicating the name required.