Legal aid commission

Victim rights

“In giving rights to others which belong to them, we give rights to ourselves and to our country”.

This often cited quotation of John F. Kennedy highlights the significance of ensuring victim rights and invites us to think, in a backdrop of escalating violence, political extremism and oppression, whether the legal framework in our country is strong enough to safeguard the rights of victims of crime. Experience has shown that most often, a crime merely ends up with a sensational news item and public outrage. Nothing is being done to redress the victim.

In the adversarial system operative in Sri Lanka, a crime is considered as an offence committed against the State. Thus, the main focus is on the accused and the victim becomes a mere shadow in the process.

Victims are hardly notified of the key deliberations in their case. (i.e. investigation process, filling of indictment, process of trial) As the State prosecutes the case even representation by private counsel is considered as an interference with the prosecution case.

Nor do we have a legislative framework recognizing the basic rights and entitlements of victims, let alone provisions for protection and assistance. Most often the victims are not even treated with respect by the police officers, lawyers and the judges and they get re-victimized in the judicial process.

Thus the victims and their families regularly endure disappointments and injustices. Apart from the impact on victims, this lack of proper mechanism to ensure victim protection and participation, necessarily increase the cost of crime to our society.

Yet, remarkable progress has been made in securing and strengthening victim rights at the international sphere. The science called “Victimology” developed in the early 1950’s, which at the initial stages, focused on the study of a victim of a crime in order to identify the perpetrator.

However, the past 30 years witnessed a major transformation of this concept from a theoretical perspective to a practical approach. Now more emphasis is given to strengthening legal rights, protections and services for victims of crime.

A landmark event in the evolution of this concept is the adoption of “UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power” by the General Assembly in 1985. Under this Declaration a “Victim” is defined as “a person who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.” The term “Victim” also includes, where appropriate, the immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.

In this scenario, spearheaded by the National Law Commission, a new Law was drafted namely “Assistance and Protection for Victims of Crime and Witnesses Act”, which is at present being debated in the Parliament.

The new Law sets out the rights of victims and witnesses, duties and responsibilities of law enforcement officials in this regard, restrictions on media coverage, provides for assistance, restitution, rehabilitation and establish a mechanism to promote, protect and enforce victim rights. This law, if approved by the Parliament, could mark the long awaited paradigm shift in the treatment of victims in the Sri Lankan criminal justice system.

The interpretation given to a “Victim” is very much in line with the Declaration and in addition includes a person who suffers as a result of a violation of human rights recognized under the ICCPR Act. The Protection and Assistance is extended to witnesses and more importantly, for the first time “Whistle blowers” are encompassed under the definition of a witness.

One salient feature is the system to provide compensation to the victims at the initial stages without having to wait till the end of the legal proceedings.

For there are many instances where victims fail to participate at legal proceedings due to lack of finances. Another aspect is the responsibilities cast upon the members of the judiciary, other court officials and public officers with regard to treatment of victims.

Further this Law provides for a court or commission can secure the evidence of a victim of crime or a witness by contemporaneous audio-visual link between such court and the location of the witness in order to safeguard the interest of the victim or witness. Moreover, this law identifies offences that can be committed against victims of crime and lays down the penal sanctions for the same.

The importance of promoting victim rights lies in the fact that not only we can prevent them being re-victimized but also can increase their participation in the criminal justice system. By making them whole and by ensuring their safety, they would view the law enforcement officials more favourably and this would ensure speedy trial and also prevent further crimes.

However, for proper implementation of these reforms, we need to raise awareness as well as conduct training programs for the officers involved in the various wings of the criminal justice system. For, an effective criminal justice system should not only bring perpetrators before justice and punish them but more importantly should address and fulfil the needs of the victim.

-Uma Wijesinghe, AAL

Training of Trainers Program (TOT)

The Alternative Dispute Resolution Institute (ADRI) in collaboration with the Public Service Training Institute (PSTI) of the Ministry of Public Administration and Home Affairs with the support of UNDP Equal Access to Justice Project of the Ministry of Constitutional Affairs and National Integration conducted a Training of Trainers (TOT) program to build capacity of the Trainers attached to ADRI and PSTI on July 25 at the Sri Lanka Foundation Institute (SLFI).

ADRI Chairman S S Wijeratne, Director, PSTI, W M P G Wickramsinghe and Sharmeela Rasool (National Project Coordinator, Equal Access to Justice Project, UNDP) graced the occasion.

Officials from various Ministries, Departments, Institutions and ADRI trainers participated in the program. Attorney-at-Law Sudharshana Gunawardene delivered a guest lecture on the “Human Rights Based Approach”.

The program was coordinated by Ms Anne Fernando (CEO, ADRI) and was funded by the UNDP Equal Access to Justice Project of the Ministry of Constitutional Affairs and National Integration.

Calling on Attorneys

Applications are invited from Attorneys-at-Law with over three years practice in criminal defence, one of which should be related to legal aid work.

As the Commission has decided to initiate legal aid in criminal defence as a pilot project, Legal Aid Lawyers are needed for the following Legal Aid Centres:-

* Anuradhapura, * Vavuniya, * Trincomalee, * Hambantota,

* Nuwara Eliya.

Proficiency in Tamil language is a requirement to serve in the Vavuniya, Nuwara Eliya and Trincomalee centres.

Closing Date:

August 30, 2009

Mailing Address:

The Chairman, Legal Aid Commission, 129, Hulftsdorp Street, Colombo 12.

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, No.129, Hulftsdorp Street, Colombo 12.

Email:[email protected]

Website: www.lawaid.org

Voet Inn dinner, AGM

The 60th anniversary Diamond Jubilee dinner of the Voet Inn Association will be held at the Galadari Hotel on August 29 at 7 p.m. All Voet Inners please contact the following Attorneys-at-Law:

Mahinda Ekanayake

- 0776-066925,

Mahinda Lokudge

- 0773-266474,

S. Suntheralingam

- 0777-374423,

Chamath Jayasekera

- 0773-113876,

Uthpala Adhikari

- 0718-032712.

The Annual General Meeting of the Voet Inn Association will also be held at the same venue at 6.30 p.m.

Questions and Answers

Can I claim prescriptive title to a land?

Question: I have been cultivating 1 1/2 acres of land for the last six years. The land is situated in the North Central Province and it is a state land.

The neighbouring lands are also agricultural lands but no one has any title to these lands.

Can I claim prescriptive title to the land I am cultivating? Your kind advice is solicited.

S.Hemasiri, Anuradhapura

Answer: No. You cannot claim prescriptive title to a state land. However, under State Lands Ordinance No.8 of 1947, provisions are made to grant state lands to agricultural families by way of long term lease permits. This lease is initially issued for a period of 30 years for agricultural purposes and/or residence and the lease could be extended up to 50 years.

This permit could be transferred or mortgaged with the permission of the Commissioner General of Lands.

Elders’ society

Question: We know that a new Act was introduced for the elders to safe guard their rights. We are senior citizens residing in a village area. We like to establish an Elders’ Society under this new Act. I shall be grateful if you will please let me know how to start this Society. Your advice is solicited.

George Perera Moratuwa

Answer: The Government has introduced the Elders Law No. 09 of 2000 to safeguard the elders’ rights. If you wish to start an Elders’ Society in your village, first you have to meet the Grama Niladari and discuss your proposal with him. Then he will guide you to establish the Elders’ Society. The Social Services Department has a separate section established known as the National Secretariat for Elders. This section will issue guidelines to Divisional Secretariats at the district level to start Elders’ Societies throughout the island.

Validity of a Lankan passport

Question: I hope to travel to a few countries in the near future and have already obtained a Sri Lankan Passport. As such, please let me know whether a Sri Lankan Passport is valid for travel to any country. Your kind reply would be greatly appreciated.

P.Chandimal Gomez - Wadduwa

Answer: A passport is valid for travel only to those countries for which a specific endorsement has been made on page 4 of the passport. Sri Lankan passports may be made valid for travel to any country in the world except those countries to which travel may be specifically restricted by an endorsement on page 4.

General conditions regarding the issue of a passport having been satisfied, a passport may, as a general rule, be issued to any country.

If an applicant wishes to travel to any other country or countries, for which travel is not specifically restricted by instructions, those additional countries can be added to the above normal endorsement. The endorsement of additional countries should be made only on the issuing authority being satisfied that the holder has good reason for visiting them.

An endorsement covering a large number of countries should not, as a rule, be given where the issuing authority is not satisfied that the holder is likely to travel very widely and actually needs such an endorsement or where the issuing authority has reasonable grounds to consider that some measure of restraint upon the movements of the holder is desirable.

The Issuing authority may, at his discretion, endorse a passport specifically for the countries to which the applicant contemplates immediate travel, as a general rule.

A passport should not be endorsed valid for countries which are in a state of war or where any unrest prevails or which have not been officially recognized by the Government of Sri Lanka.

Developmental Legal Aid desks of LAC

Question: I am a resident of Kalutara. I read your Legal Aid Page published every Friday. This page is very useful to the general public and I must really thank the Legal Aid Commission for doing such a great job to the public. I understand that the Commission has set up Developmental Legal Aid Desks in order to cater to the needs of the deserving litigants relating to their various problems. Could you please let me know the various Desks the LAC has established to serve the deserving litigants?

Please also let me know whether persons seeking legal advice should come to the Head Office to solve their problems. I await your early reply.

M.Satarasinghe, - Kalutara

Answer: Thank you very much for reading our weekly Legal Aid Page and for the encouraging words expressed by you.

The Legal Aid Commission has set up Developmental Legal Aid Desks to cover subjects of women, children, human rights, consumer affairs, elders, anti-corruption, persons with disabilities, Internally Displaced Persons, prisoners, school students, industrial disputes and environmental. Legal Aid lawyers heading these desks are specially trained to intervene legally when larger issues affecting these vulnerable groups prop up. The DLA Desks publish pamphlets and conduct islandwide awareness campaigns. The public has responded positively. The following Legal Aid Desks have been established.

01. Anti-Corruption Desk.

02. Apprentice Training Program & Bench & Bar Desk

03. Child Rights’ Desk

04. Consumer Protection Desk

05. Disabled Persons Desk

06. Elders’ Right Desk

07. Human Rights Desk

08. Internally Displaced Persons Desk

09. Migrant Workers Desk

10. Prisons Desk

11. Protection of Women’s Rights Desk

12. Public Officers Awareness Desk

13. School Program & Essay Competition

14. Labour and Environment Protection Desk

It is not necessary for persons seeking legal advice to come to the Head Office in Colombo.

The Legal Aid Commission has 49 centres islandwide and they could visit any of the Centres closest to them and receive assistance/legal advice. Since you are residing in Kalutara, you can visit our Legal Aid Center in Kalutara. Our Centres List was published in last week’s Legal Aid Page.

Making complaint to Police about job agency

Question: I went to a Job Agency which is registered under the Foreign Employment Bureau. After facing two interviews, I was selected for the post of Electrical Supervisor in a Construction Company in the Middle East. The Job Agency issued me a visa for two months and charged me Rs.65, 000 for passport, visa and ticket. My visa is due to expire in a few weeks but they have still not given me my passport and the ticket. I feel that I have been cheated by the said Job Agency as they keep on giving various excuses and delaying my trip. Can I make a complaint to the police? Please advice me.

J.Zameer, - Kadawatha

Answer: You have mentioned that your Job Agency has been registered with the Foreign Employment Bureau. So there is no need for you to go to the police as the Foreign Employment Bureau has the power to investigate into your matter. The Foreign Employment Bureau has already issued circulars to the police stations to bring matters of this nature to their books and the Foreign Employment Bureau will thereafter investigate and take appropriate action against such Job Agencies and even cancel their registration under the Foreign Employment Bureau Act No.21 of 1985.Therefore please make a complaint to the Foreign Employment Bureau.

Its address is given below:- The Foreign Employment Bureau, No.234, Denzil Kobbekaduwa Mawatha, Koswatta, Battaramulla, Tel No.011 2864118/2864119

If you need further information you could contact our Migrant Workers Desk, Legal Aid Commission, Head Office at No.129, Hultsdorp Street, Colombo 12.

Identity Card for deaf

Question: have a son who is deaf. He is over 18 years of age and has already obtained the National Identity Card issued by the Registrar of Persons Department.

I wish to get a Special Identity Card (for persons with hearing disabilities) for my son. How can I obtain this Special Identity Card.? Please advice me.

Mrs.Jacyntha de Almeida, - Kandy

Answer: You can obtain this Special Identity Card for your son who is deaf from the Department of Social Services.

The Department of Social Services has taken measures to issue a Special Identity Card for 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.

You can obtain the Application Form from the Department of Social Services Website or from the Divisional Secretariat Office in your area.

Once the Application Form is filled by the Applicant with hearing difficulties, it has to be certified by the Grama Niladhari with regard to the correctness of information submitted by the applicant. You need two copies of an Identity Card size (length 3 1/2cm and width 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.

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 application for quite a long time an 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 recognized organization pertaining to persons with hearing disabilities.

You have to send the perfected Application Form to the Department of Social Services by registered post. The Department on being satisfied with the documents submitted will take steps to issue this Special Identity Card for your son. This Identity Card is issued free of charge.

Seeking a legal remedy for injustice caused?

Question: I am an ex-employee of a Government Corporation.

I was made to retire on reaching the age of 55 in 2003 although I could have worked till 57.

Is it possible to seek legal remedy for the injustice caused to me? Your kind reply would be greatly appreciated.

M. Krishnan, - Mattakkuliya

Answer: You could have made an application to the Labour Tribunal.

However, your case is time barred because the application had to be made within six months from the date on which you were asked to go on retirement.

(According to the Law applicable at that time)

Publications relating to children

Question: I am a freelance journalist and I intend to write an article to the papers on rights of children with emphasis on case studies. As I wish to use some genuine court proceedings, I would like to know the legal aspects relating to such publication. Please advise me.

S.M.Fernandez, - Mutwal

Answer: Under the Children and Young Persons Ordinance No.48 of 1939, reports regarding cases heard in respect of Juveniles cannot be published in newspapers, magazines or journals. Nevertheless, if such publication is made bona fide with the intention of promoting the welfare of children without using personal identification data, you can use data relating to court proceedings.

Action under Domestic Violence Act?

Question: I am concerned about a child and the mother who lives next door. I have reason to believe that they are being inhumanly treated by the husband. I have heard about domestic violence and would like to know if there is any advice I can give to these people.

Interested citizen, - Wadduwa.

Answer: Under the Domestic Violence Act, domestic violence involves criminal offence like causing hurt, grievous hurt, assault, criminal intimidation, use of force, abandoning a child under 12 years, emotional abuse.

In the situation revealed by you, the mother can make a complaint to the police or make an application to the Magistrate’s Court by herself. Thereafter the court can issue an Interim Protection Order and Protection Orders preventing the Respondent from -

* Entering or occupying the residence.

* Entering the school of the child.

* Preventing any contact with the aggrieved person

* Committing acts of violence against persons assisting the aggrieved persons

* Setting, transferring or encumbering the matrimonial home so as to prevent the aggrieved persons becoming destitute.

Appeal regarding land case

Question: There was a land case which was settled in my brother’s favour and the appeal was made by the defendant. Please note that the Judgment was given in the year 2000 and the appeal was made in the same year (within the appealable period). Eight years have passed since then. I now wish to clarify -

(a) When will this case be heard?

(b) Will my brother be informed or the lawyer who appeared for my brother or both?

(c) If the lawyer who appeared for my brother is not in a position to appear this time what should he do?

I await your kind reply

M.Kottage, - Kaduwela

Answer: The answers to your questions are given below:-

(a) Kindly check from the Registrar, Court of Appeal regarding the 2000 final appeals.

(b) Your brother’s Registered Attorney and your brother will be informed regarding the hearing of the final appeal application.

(c) If your brother’s lawyer is not in a position to appear on his behalf, he can retain any other suitable lawyer as he wish.

Street children

Question: When I travel to office daily, I see so many street children begging on the streets as well as in private buses. Most of them are under 14 years of age. Some of these children are forced to beg by their parents. If this continues, I fear these children will become criminals in the future.

I want to find out whether there is any legal system to protect these unfortunate children. Please advise me.

Kingsley Fernando - Kelaniya.

Answer: We have a separate court for children already established in Bambalapitiya which is called the Juvenile Court. A Juvenile Court is a court that hears any charges against a child or a young person.

As a kind citizen, you can bring or can send a detailed letter regarding these children to the Department of Probation and Child Care Services with a copy of the said letter to the Judge of the Juvenile Court, Bambalapitiya.

The Legal Aid Commission has also set up a Special Legal Aid Centre in the court premises to cater to the needs of these unfortunate children. The Department of Social Service also has a special unit to safeguard the welfare of street children. Under the Law it is our social duty to protect and safeguard the rights of these unfortunate children.