Legal aid commission |
Compiled by Kalani A. Medagoda, A.A.L.ess
to justice |
(Continued from last week)
Extracts from the speech delivered by Chief Justice Asoka de Silva
at the Legal Aid Training Program - Second part
Legal Aid and Professional Bodies
Legal aid was initiated by the Law Society and Bar Council and
regularized by Act No.27 of 1978 after the amalgamation of the two
professions in 1974. It is an independent statutory organization set up
to give free legal aid to underprivileged section of the society. It had
a humble but an active and vibrant during 1986/7/8, where the
countrywide organized network was active with the government assistance
of Rs.150, 000. Currently, it is heavily funded by the State and foreign
donations and to their credit running 72 branches which still is grossly
inadequate due to the unprecedented demand by the public for help. The
Legal Aid Foundation run by the Bar Association needs new blood and
experienced hands with a vision and exposure as it still primitive
stages on the area of access to justice via legal aid. It is the duty of
the Bar association to organize around 9000 lawyers as active members of
the team. It is a pity that the Bar association is struggling to run the
Legal Aid Foundation for want of funds. It is the duty of every lawyer
to work hand in hand with the Bar Association in the development and
functioning of the delivery of legal aid. Bar Association should learn
from the previous glory and the good work by the Legal Aid Commission
and improve the Legal Aid Foundation which is the responsibility of the
legal profession in the interest of the lawyers and the Nation.
If the public lose faith in the legal system due to delay cost and
corruption, in delivery of justice, the public will take the law into
their hands and as a result it is the legal profession and the public
will be the main casualty.
It is the duty of the Bar to take steps in the delivery of legal aid
with the help of the Executive and the Judiciary. Citizens are grateful
to the Bar and Judiciary in delivery of free legal aid which is unique
to the legal profession.
In other professions there is no organized professional help for
needy. Duty Solicitor System prevalent in the United Kingdom is an ideal
system for us to follow.
Every Court has duty solicitors appointed and in police stations
lawyers to assist litigants at any time of the day funded by legal aid.
Though we are short of funds other devices could be adopted to meet the
demand of the citizen in delivery of legal aid. State may find it
difficult to find the scheme, but it is time the BASL take the challenge
to launch in voluntary basis and those who are involved in Pro Bono
matters can be looked after otherwise as in the United Kingdom, where
such services are considered for judicial appointments, promotions and
reorganization of services such as Honorary appointments and
designations by the State, Profession and international bodies.
Strong Arbitration Law pre-requisite for foreign investment - CCC
President Jayampathi Bandaranayake
Ceylon Chamber of Commerce (CCC) President Jayampathi Bandaranayake
addressing the fifth Diploma awards ceremony in Commercial Arbitration
at the BMICH said that a series of recent judgements have created a
sense of uncertainty in the business community relating to the security
of investments, these doubts need to be cleared to foster trade and
commerce in the country.
A diploma prize winner at the fifth awards ceremony in
Commercial Arbitration Sharmeela Rasool receiving her award
from ICLP General Secretary S.S. Wijeratne. Mrs. K.C.
Kamalasabeyson was among the distinguished participants at
the awards ceremony. (Right) A section of the gathering.
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ICLP General Secretary S.S. Wijeratne complimented the calibre of the
Diploma Holders in International Commercial Arbitration. From the very
inception they were drawn from among senior professionals such as
engineers, architects, building quantity surveyors, accountants and some
lawyers. The maturity and aptitude shown by this year's batch of
diplomates cannot be as all of them completed their examination with
flying colours.
The need for a higher Diploma in commercial arbitration in keeping
with international norms and standards was felt by the ICLP Council
after few years of the functioning of the ICLP Institutional Arbitration
Centre in 1995. As Arbitration has replaced litigation as the preferred
method of international commercial dispute resolution during the past
decade, it became imperative that a high ranking Diploma Course be
attached to the ICLP Arbitration Centre, not only to prepare pools of
potential Arbitrators but create an international form for discussion on
the emerging trend in Global Arbitration.
The ICLP Arbitration Institute had attached the best faculty from
among the judges of the Supreme Court here and abroad the leading
practitioners of Arbitration and the respected academics from the
universities. Most of the faculty members are internationally recognized
Arbitrators and resource persons also participate in international
arbitration events on a regular basis thus infusing the Diploma students
with the latest trends.
In these challenging times the different arms of the commercial world
whether be manufacturing, exporting or dispute resolution need to hold
hands together.
The Ceylon Chamber of Commerce in the display CSR commitment set up
the ICLP. In this context it is traditional for me to mention the
founder Chairman of the ICLP Chandra Wijenayake and legal eagles, K.
Kanag-Isvaran and U.L. Kadurugamuwa for the pioneering work rendered to
the ICLP and to the commercial development of the world.
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Questions and Answers
Registration of logo before starting a business
Question: I have decided to start a cloth business. I would
like to register the first letter of myself and my husband's name with a
beautiful design in all my packing bags of my garment business. I want
to know whether is it necessary to register this logo and the name
before starting my business? Please advise me.
S.Mahinda, Ratmalana.
Answer: Under the Intellectual Property Act No. 36 of 2003, it
is advisable to register the logo at the under mentioned address, before
you start your business:-
National Intellectual Property
Office of Sri Lanka,
"Samagam Medura",
3rd Floor,
No.400, D.R.Wijewardene Mawatha,
Colombo 10
Tel.No.2689368 Fax No.2689367
Email:[email protected]
Can I insert father's name in child's birth certificate?
Question: I have a child but not from a valid legal
registration marriage. In the child's Birth Certificate, the father's
name has not been mentioned. I filed a maintenance case against my
husband and the Judge ordered him to do a DNA test. I received the
judgment in my favour stating that my husband is this child's father.
Subsequently, my husband also gave his consent to include his name as
the father in the child's Birth Certificate. Is it necessary to go to
courts again to mention the father's name in the child's Birth
Certificate. Please help me. M.Anushika, Mawanella.
Answer: As you have already received a judgment from the
Magistrate's Court proving the paternity of the child, it is not
necessary to go to the courts again. It is enough for you to prepare an
affidavit stating that he is the father of the child and accordingly you
want to amend the child's Birth certificate. You also have to get a B9
Application Form from the Divisional Secretariat's Office in your area.
Having filled the Application Form, you should hand over it to the
Additional Divisionary Secretary's Office where the child was born. Then
they will help you to amend your child's Birth Certificate.
Practising as a Notary Public
Question: I am an employee attached to the MPCS Limited,
Eravur. After I got through the Final Examination of Notary Public, I
obtained the warrant from the Department of Registrar-General to
practise as a Notary Public and asked to swear in at the High Court,
Batticaloa but I am refused to do so saying I would be allowed to take
oaths either after my retirement or resignation from the Institution.
But I understand that there are many Government servants in practice as
Notaries Public while they are serving in different parts of the island.
I shall be very much obliged if you could kindly clarify this matter
and let me know through your Legal Aid page. M.Issadeen, Eravur
Answer: If you want to practise as a Notary Public, you have
to get prior approval from your Department and inform the
Registrar-General accordingly.
Prescriptive rights
Question: I shall greatly appreciate your clarifications on
the following issues.
1) Can Prescriptive Rights be claimed by a party over undivided and
co-owned property (land)?
2) In a seven acre undivided & co-owned property, can many parties
separately claim, prescriptive rights over various parts of such
property (not in its entirety)?
3) Where such undivided & co-owned property is situated within a
Municipal Limit, can Occupiers, who are not co-owners, put up
constructions?
4) Usually, for any Construction purposes, it requires the
authorization of a Building Permit from the respective Municipality. Can
the Municipality authorize Construction to individuals who claim
Ownership (by prescription or otherwise) on such undivided & co-owned
property?
5) Where such Occupiers have put up Constructions, perhaps by
obtaining Municipal Approval on false pretexts or forged 'Title Deeds'
etc., can a Co-owner who has instituted a Partition Action, officially
obtain copies of any Title Deeds or its particulars that may be recorded
in the Abstract of Title Register of the Municipality?
6) Should such request be made through the District Court or can the
Attorney-at-law for the Plaintiff obtain them from the Municipality?
Vevil Abeyegoonasekera (Sent by email)
Answer:
1. Yes
2. Yes
3. Technically they cannot but constructions can be done subject to
be fined.
4. If the other co-owners give their consent, it can be done.
5. Yes
6. Yes.
Testamentary Case
Question: My father died on May 1, 1960. The monies due to him
were sent to the Courts. It was after a Testamentary Case in the Hatton
DC Courts, we were able to collect our shares from the Kandy Kachcheri
in 1969.
At the time the payments were made the interests were not included,
in addition my youngest sister did not get her share as she was then a
minor. I had approached lawyers in Hatton to get these monies but of no
avail. They collected money from me as charges but did not do anything.
May I please request you to kindly advise me as to how the money
lying in the Courts could be collected.
Leslie M R Dason, Maskeliya
Answer: You have to file a motion in court explaining the
situation. The court will thereafter consider the matter but the
interest component will be small
Dual citizenship
Question: I am a citizen of Sri Lanka by registration. I wish
to obtain Dual Citizenship. To enable me to obtain the same, could you
kindly let me know the documents required to be submitted by me.
Thanking you for your kind reply.
S.Lazarus, Sent by email
Answer: The documents required for Dual Citizenship are -
* Applicant's Original Birth Certificate and a copy.
* If the Applicant is a citizen of Sri Lanka by registration, the
relevant certificate and a copy.
* If Applicant is married, the Marriage Certificate and a copy.
* Applicant's Foreign Citizenship Certificate/Foreign Travel
Documents/Permanent Residence Visa and a copy of the same or a letter
from the Government of the country of domicile, confirming that
citizenship has not been granted to the applicant/Applicant's family as
yet.
* Applicant's current and/or previous Sri Lankan Passports and copies
or an affidavit.
* If applying under professional category, Applicant's
educational/professional certificate and a copy(minimum a two year
Diploma/Trade Certificate from a recognized Institute).
* If applying under wealth category, original of the documentary
proof of Applicant's assets such as lands or other immovable properties
in Sri Lanka worth of Rs.2.5 Million or above and a copy. Deed Valuation
report extract and title report for the same should also be submitted.
* If applying under 2.5 Million category, original of the documentary
proof minimum one year Fixed Deposit in a Bank in Sri Lanka of an amount
not less than 2.5 Million.
* If applying under age category, applicants over 55 years of age
original Birth certificate and a copy should be submitted.
* An Applicant who applied under NRFC/RFC/SFIDA/Dual Citizenship
Accounts category, must submit a letter stating his/her willingness to
do so under that category. After the approval is notified the
original/copy (certificated by the bank) of the deposit certificate
should be submitted.
* An Applicant who applied under Treasury Bonds TIERA and TIERA-D
category, must submit a letter stating his/her willingness to do so
under that category. After the approval is notified the original/copy
(certified by the bank) of the deposit certificate should be submitted.
* If the documents referred to above are submitted without originals,
they should be attested by the Sri Lankan Mission accredited to that
country or the nearest Sri Lankan Mission or Consulate of the country of
domicile or Solicitor or Justice of Peace in the country of domicile.
Appellate and Revisionary Jurisdiction
Question: Please let me know the legal context of Appellate
and Revisionary Jurisdiction. I await your early response in this
regard.
S.Karunaratne, Ja-ela.
Answer: The First Appeal and/or revision are/is preferred from
the judgments and/or orders of the original courts to the Court of
Appeal and the second appeal to the Supreme Court is made possible only
with leave to be granted. Article 128 of the Constitution sets out the
manner and granted. Article 128 of the Constitution sets out the manner
and grounds upon which an appeal lies to the Supreme Court from the
Court of Appeal.
1. An appeal lies to the Supreme Court from any final order,
judgment, decree or sentence of the Court of Appeal whether civil or
criminal which involves a substantial question of law. In this matter,
the Court of Appeal has to grant leave to appeal to the Supreme Court ex
mero mottu or on the application of the aggrieved party.
2. The Supreme Court too can directly grant leave to appeal. That is
called Special by the Supreme Court from any final or interlocutory
order judgement, decree or sentence whether civil or criminal where the
court of Appeal has refused to grant leave to appeal to the Supreme
Court or where in the opinion of the Supreme Court the case or matter is
fit for review by the Supreme Court.
3. The Supreme Court may also grant leave to appeal in every matter
or proceedings in which it is satisfied that the question to be decided
by the Supreme Court is of public or general importance.
The Supreme Court Rules, 1990 and/or Court of Appeal (Appellate
Procedure) Rules, 1990 shall appropriately apply to the procedure in
applying these applications.
Thus, the Supreme Court has become the highest and superior Court in
Sri Lanka. See Articles 118 to 136 of the 1978 Constitution.
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."
Benefits under ETF
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.)
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.
How to trace a Power of Attorney
Question: I wish to know whether it is possible to trace a
Power of Attorney from the records at the Registrar's Office, if it is
lost/misplaced, provided the month and year of issue is known? How does
one get about it and what is it likely to cost. N K Rajan, Colombo 3
Answer: If you sign a Power of Attorney, the Notary who
attested the Power of Attorney will give three copies. The 1st copy will
go to the Registrar-General's Department with a photocopy of the
original. The second copy will go to the Land Registry where the Notary
has been registered. The third copy is the protocol which is kept under
the custody of the Notary. If you know the number, date and the name of
Notary, you can apply for a certified copy from either the
Registrar-General's Office or from the Land Registry where the Notary
has registered. The relevant stamp duty has to be affixed when applying
for certified copies.
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