Access to justice

Extracts from the speech delivered by Chief Justice Asoka de Silva at the Legal Aid Training Program - 1st part

Justice and Equality

A citizen is entitled to justice and fair play at an affordable price with easy access to the legal profession which has been an honourable profession and was practised as a service with no remuneration. Law delays and cost of litigation is common worldwide. Access to justice and due process are basic requirements in an ideal democratic society without which the law of the jungle and survival of the fittest will take control.

The law must be simple, accessible and approachable to the citizen at an affordable price. Justice delayed is justice denied and today all the jurisdictions worldwide is attempting to control this development which retards the confidence of the citizen on society which leads to anarchy. In other jurisdictions, especially in the UK, USA and the west, modern technology and developments are being used to attach law delays.

Fax, e-mail, electronic media and modern developments are used in delivery of legal services. Pleadings could reach courts via fax and e-mail and the court staffs are used to receive messages of the public via telephone and other ways. Sri Lanka is more traditional and stiff than the west from whom our system is inherited. It is time for us to follow good things of modern developments. According to Thomas Hobbs "Justice is created by public enforceable authoratative rule and injustice is whatever those rules forbid".

Government must respect all the legal rights that are owed to a person according to the law of the land which is the basis of the rule of law. Judges will define and guarantee fundamental fairness and justification of liberty. Strong Bar an independent judiciary and effective legal aid scheme are main pre requisites for the delivery of justice in an ideal democratic society. Direct and indirect legal aid schemes or modes of assistance to the litigants have been provided to the public by the Governments and the professions in their own interest in order to avoid breakdown of the society.

Legal system

Our legal system is based on a mixture of English, Roman Dutch and Personnel laws in addition to latest developments introduction on law and procedure which obviously is complicated. Hardly any changes have taken place on the court system, procedure, legal education and the law for a long period when the world is changing so fast. It is time we pace with the modern world and it is time for us to re think on legal education, due process and the entire structure of legal administration. Delivery of law and legal aid must be compatible with the other jurisdictions and needs of the fast developing society and the changing world. In Sri Lanka there are only two main legal aid providers namely the Legal Aid Commission and Bar Association.

The lawyer is a pre requisite for delivery of law as only lawyers are authorized to practise the legal profession, other than the personal representation of litigants.

Bar Association is the only statutory body for lawyers and their responsibility is enormous in maintaining the social balance of the national without which citizen will lose faith with the system. It is time the Law College takes this challenge in the initial stages of law studies and NGOs should be enlarged to initiate Legal Aid Clinics.

Citizen Advice Bureaux (CABx)

This is a concept prevalent in the UK and Europe in support of Legal Aid and to help citizens in any area on any help and advice. The centres are funded and managed by the local authorities or NGOs or local organizations. This is a very successful network which has spread in UK and Europe which is an ideal model for us to follow. Legal Aid Commission, the Bar Association and the Ministry of Justice can work on this matter and obviously the Judiciary can plan an adversary and supervisory role. The British Government will be happy to help us to implement this concept as it originated in Europe. If we follow the British Model in administration, Law, procedure international law relations and many many areas, there is no reason why we should import good concepts with necessary adoption to suit us.

Legal Aid is not a favour - it is a basic "Human Right"

The universal declaration of Human Rights states "all are equal before the law and are entitled without any discrimination to equal protection of the law" and Article 12 (1) of the Constitution states as follows, "All persons are equal before the law and entitled to equal protection of the law. How would the citizen exercise these rights without easy access to legal process which is expensive? Lord Denning while observing that legal aid is a system of governance for those who could not afford to pay for advice and representation said" The greatest revelation in the law since the post war has been the evolution of the mechanism of the system for legal aid. The most developed legal aid system is found in the United Kingdom where the government spends billions of pounds for the legal aid scheme which is on an advanced plain. Every citizen who is entitled to legal aid is entitled to the services of any lawyer of his choice which includes the services of even a QC where necessary. Legal Aid Lawyers are well paid in the UK for legal aid work and the litigants are happy and contended with their services.

Thereby society is satisfied with income support, housing benefits and legal aid which has retarded social uprisings. In India Article 39 (A) provides an effective mechanism of legal aid program. Indian, and Commonwealth experiences and jurisdictions show the need and the interest shown in the sphere of delivery of legal aid in order to avoid drastic changes in the society. The best model for us to follow is the British Model our system too is modeled. The trouble is we have fewer funds.

But if the Bench Bar and executive get together ways and means could be implemented to overcome this difficulty and it is in the interest of all the citizens we should improve the legal aid as when the confidence of the delivery of legal aid is lost citizens will resort of law of the jungle which is disastrous to everybody.

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 Questions and Answers

Drafting of laws

Question: Please let me know the procedure with regard to drafting of laws in this country. Your kind response will be greatly appreciated. R. Shehan, Anuradapura

Answer: The main function of the Legal Draftsman's Department is to draft legislation in keeping with the Constitutional requirements in three languages - i.e.Sinhala, Tamil and English.

All Legislation in the initial stages follows the same procedure, which is as follows -

Cabinet memorandum

Legislation is initiated with the formulation of a Cabinet Memorandum by the relevant Ministry. The Memorandum will embody the policy of the government in relation to the subject matter of the Bill to be drafted, giving reasons of the necessity for the legislation.

Cabinet decision

On the Cabinet Memorandum being forwarded, the Cabinet will decide whether the proposed legislation is needed, whether any changes are essential to the proposed policy and what the financial implications of the proposed legislation are.

The Cabinet Decision will confirm with or without amendments, the matters contained in the Cabinet Memorandum, which will then be forwarded by the relevant Ministry to the Legal Draftsman's Department, for the preparation of the necessary legislation.

Drafting process

The Legal Draftman's Department will then proceed to draft legislation on the lines set out in the Cabinet Memorandum. Officials of the relevant Ministry will give the necessary instructions and clarifications. A preliminary draft of the Bill will be prepared first and forwarded to the relevant Ministry for its observations thereon.

If any observations are made on the preliminary draft, these will be incorporated in the Bill and the final draft of the Bill will then be prepared. The final draft of the Bill will thereafter be sent to the relevant Ministry and also to the Attorney-General for his observations.

Constitutuionality

It is the duty of the Attorney-General to examine the constitutionality of the draft legislation submitted to him in terms of Article 77 of the Constitution. i.e. to examine whether the provisions of the Bill are in conformity with the provisions of the Constitution. The Attorney-General is required to issue a Certificate to the effect that "the provisions of the Bill are not inconsistent with the Constitution". This has to be tabled in Cabinet together with the final draft of the Bill.

Publication in Gazette

When a Bill is sent back to the Cabinet in its final form, accompanied by the Attorney-General's Certificate, the Cabinet will approve the Bill and issue instructions to the Government Printer to forthwith publish the Bill in the Gazette.

(Article 78 of the Constitution) A Bill must be published in the Gazette at least one week before it is placed on the Order paper of Parliament.

Procedure in Parliament

The Second Reading of the Bill can be taken after the lapse of one week from the first reading of the Bill. Any citizen may challenge the Bill in the Supreme Court for inconsistency with the constitution, within one week of it's being placed on the Order paper of Parliament. If the Bill is challenged in the Supreme Court, the Second reading can only be taken after the Supreme Court has made its determination on the Bill, and communicated it to the Speaker.

In the Second reading of the Bill the principles underlying the Bill are debated and a vote is taken at the end of the debate.

The Bill is then referred either to a Committee of the whole House (consisting of all members of Parliament) or to a Standing Committee (Consisting of about 15 members of Parliament).

In Committee, the Bill is examined clause by clause and a vote taken thereon. Amendments may be moved to the Bill at the Committee Stage. An officer of the Legal Draftsman's Department is present in Parliament during the committee stage of the Bill to help draft the necessary amendments.

After the Bill is passed in Committee, it is then read for the Third time. Formal amendments may be moved to the Bill at this stage. A vote is taken at the end of the Third Reading. If the Bill is passed it can be said to have been by Parliament, but it does not have the effect of law.

Speakers certificate

A Bill passed by Parliament becomes law only upon the Speaker endorsing the Bill. i.e. he certifies it as having been "duly passed by Parliament". (Article 79 of the Constitution). The Bill then becomes an Act of Parliament and a number is assigned to it. i.e. Act, No.12 of 1997.

Reference to the Supreme Court and its determination

Within one week of a Bill being placed on the Order Paper of Parliament a Bill may be referred to the Supreme Court by the President or challenged by a citizen as regards the constitutionality or otherwise of a Bill. (Article 121 of the Constitution). The determination of the Supreme Court shall state whether the Bill or any provisions thereof are inconsistent with the Constitution and its reasons for so determining. (Article 123 of the Constitution). The Supreme Court may also suggest any amendments necessary to make the Bill consistent with the Constitution.

EPF/ETF payments for employees on a part time basis

Question: I am employed as a General Clerk in a Company on a part time basis. I wish to find out whether an employee who is employed on a part time basis entitled to benefits such as EPF & ETF. Please advice.

Derrick Souza, Battaramulla

Answer: The answer is 'Yes'. If EPF/ETF payments are not made to you, you can make a complaint to the Labour Office where your place of employment is situated. (Tutors are not entitled to EPF/ETF benefits by their contract of employment).

Is there any special identity cards issued for deaf persons?

Question: I am a deaf person 26 years of age. I understand that there is a special identity card issued for persons with hearing disabilities. Is this correct? If so, please let me know how to apply for such an Identity Card. Your kind reply would be greatly appreciated. S. Ravi, Mattakkuliya

Answer: Yes. The Department of Social Services has taken measures to issue a Special Identity Card for the persons with hearing disabilities (the Deaf) in order to facilitate them to attend to their day to day activities. This has been approved by the Commissioner for Registration of Persons. The relevant application form could be collected from the Department. Once the form is filled by the applicant with hearing difficulties, it should be certified by the Grama Niladhari with regard to the correctness of information submitted by the applicant and sent to the Director of Social Services with the recommendation and approval of the Divisional Secretary of the respective area.

Two copies of an Identity Card size (length 31/2 c.m. and with 2 cm) photograph of the applicant - one pasted on the application (relevant place) and certified by the Grama Niladhari and the other in a small envelope attached to the application should be sent.

When confirming the hearing disability you may please satisfy yourself with at least one of the following namely, the medical certificate/confirmation by the Grama Niladhari on his knowing the applicant for quite a long time and on information provided by the neighbours/documents to prove that the applicant has studied in a school or a vocational training institute meant for persons, with hearing difficulties/written certificate from the Secretary or the Chairman of any recognize organization pertaining to persons with hearing disabilities.

Please send the perfected application to the Social Services Department by registered post without handing them over to the relevant applicant. Further, it is kindly informed that these Special Identity Cards are issued free of any charge. The address is given below:

Department of Social Services, No. 150A, LHP Building, Nawala Road Nugegoda. Tel. No. 011 2825216

Computer offences in Sri Lanka

Question: Please let me know the offences relating to computers and the legal position on computer offences in Sri Lanka. Thanking you in advance for your kind advice.

P. Anurudha, Mahara.

Answer: Computer offences may be, (1) computer related offences - e.g. the accused uses the computer / network as tool/s to commit offences or (2) computer integrated offences - the accused commits offences through computer programmes (e.g.modification of computer programmes by introducing computer virus, Trojan horse etc) or (3) contents related offences - the accused changes/destroys computer data.

Legal position on computer offences in Sri Lanka

The Parliament of Sri Lanka has enacted the long awaited Computer Crime Act No.24 of 2007 that was gazetted on 13.07.2007 recognising Computer offences. Internationally recognised offences identified under the Computer Crime Act Part I of the Act explains the offences relating to cyber crimes.

* Section 3 of the Act deals with 'unauthorised access to any computer or information held in any computer'. This is called computer hacking in general.

* Section 4 of the Act has introduced the offence of unauthorised access with an intention to commit an offence.

Explanation to section 3 and 4 states that the mere 'turning on' of a computer is sufficient to fulfill access to any computer and it is not necessary to have unauthorised access directed at any particular programme, data or computer, to access information held in any computer. e.g. Sniffing and Phishing.

* Section 5 of the Act has introduced the offence of causing a computer to perform a function without the lawful authority (unauthorised modification or damage or potential damage to any computer, computer system or computer programme) and it is immaterial whether the consequences referred to therein were of a temporary or permanent nature.

Transmitting of viruses (a malicious programme) from a computer to another or computer system to perform a function of such computer or computer system accidentally or negligently and cause that to function in a different way than the normal functions without the authority may be an offence under this section.

Other offences under Computer Crime Act

* Section 6 deals with offences committed against national security, the national economy, or public order by causing a computer to perform a function. Terrorist activities carried using computers will be dealt under this section.

* Section 7 has introduced the offence of obtaining information without lawful authority from a computer or a storage medium of a computer.

* Section 8 explains the offence of illegal interception of data. A Service Provider of a mobile phone connection who intercepts any transmission between such Mobile phone and another connection illegitimately, such person commits an offence under this section.

* Section 9 of the Computer Crime Act deals with the offence of using (produce, sell, procures for use, imports, exports, distributes etc) of illegal devices.

* Section 10 of the Act has introduced unauthorised disclosure of information enabling access to a service as an offence.

* A person who attempts to commit the aforesaid offences under sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the Act or who causes such an offence to be committed, shall be guilty of an offence.

* Abetment and conspiracy to commit a computer crime are offences and explained under sections 12 and 13 of the Act.

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