Legal Aid Commission

Killers on wheels

Motor accidents are a frequent occurrence in our daily lives. It is this frequency that has made them a "trivial fact" of urban life and left this burning issue gravely under addressed and neglected. Perhaps many of us are unaware that criminal negligence has become the number 1 killer in Sri Lanka today. While the number of fatalities have ceased in the warfront, the highway death and injury toll continues to tick over.

According to Traffic Police statistics, out of a total number of 30,420 accidents reported in 2008, 2,157 were fatal.

They also reveal that motorcycles, lorries and private buses have caused the majority of them, the numbers being 674, 349 and 232 respectively.

The traffic police states that the majority of deaths were caused to pedestrians; over 625 persons being killed out of a total of 2,312 killers last year.

The statistics are on the rise with little or no action being taken to remedy the problem.

The medical care for accident victims, damage to property and vehicles involved in road accidents last year was estimated by authorities to have cost US $ 105 million to the government; nearly 1% of the GDP. Thus it is now emerging as a national health issue. These facts are testimony to the lacunae in traffic management methods and law enforcement in the country. The time is ripe for sufficient attention to be given to the issue by relevant management authorities and the public.

The Traffic Police identified reckless driving, negligence, indiscipline, ignorance and driving under the influence of liquor and violating traffic rules as the main reasons for accidents on roads. They have launched several awareness programs among drivers and schoolchildren to promote road safety. It has also deployed traffic patrols from time to time to detect road violence. However, these measures have proved ineffective and inadequate. Stringent laws are required to deter people from becoming reckless on roads.

Legal Provisions

The traffic police have been given the legal power to arrest drivers for certain road offences such as forged licences and national identity cards, driving without number plates and driving under the influence of liquor under the Motor Traffic Act No. 08 of 2009 (amendment).However drivers responsible for fatal accidents tend to be dealt with leniency. Drunk drivers are usually being fined about Rs.1500 and prosecutions are rare.

According to Section 272 of the Penal Code, the punishment prescribed for endangering life or causing hurt or injury by rash and negligent driving is a term of imprisonment which may extend to six months or fine.

Many activists have pressed for a longer term of imprisonment for criminally negligent driving to offer some form of a deterrent. The Law Commission of India has recommended a 10 year term of imprisonment for deaths caused by rash and negligent drivers. The Sri Lankan Law should also be developed along the same lines.

In Sri Lanka, drivers are allowed to take the wheel even after being involved in a fatal accident. It is suggested that the driving licence of such persons be withheld for a considerable period of time as punishment. Insurance companies are a major actor in litigation of this nature. In most instances aggrieved parties fail to involve Insurance companies as defendants, resulting in them failing to obtain adequate compensation from the defendants. In addition to the above issues, the grounds of eligibility for compensation meant for aggrieved parties should also be expanded.

Supporting victims of criminal negligence

The majority of victims of road accidents are underprivileged persons who are incapable of approaching the justice system.

Furthermore, they are unable to afford expert evidence from medical personnel required in cases of this nature. The Legal Aid Commission seeks to introduce a special unit, whereby aggrieved parties who are unable to press for legal action due to financial difficulties, can obtain legal advice and representation in such litigation free of charge.

The Victims Protection Bill before Parliament would assist the LAC projected preventive measures.

With the law in place, Sri Lanka also requires new technology like speed-cameras and video systems to control traffic. Installing Close Circuit Television cameras (CCTV) in junctions and other places is one of the vital tools that can be used to control speeding and ignoring signal lights.

The police is keen on taking action to install the CCTV cameras on traffic lights in the city. How successful the implementation process will be, only time can tell.

The Government needs to allocate more funds to improve infrastructure to make roads more conducible and safe for both pedestrians and motorists. Adequate street lighting, pedestrian crossings, overhead road crossings, guarded railway crossings, are essential in this regard.

The process is in fact cumbersome and difficult. Yet with effective planning and commitment it should be implemented as it involves the safety of the masses of the country, which the state has a responsibility to protect.

Upekha Wedage,

Public Legal

Awareness Unit

Wellawaya Legal Aid centre will greatly benefit poor - District Judge

Despite national and international efforts the Wellawaya Judicial Zone remains one of the poorest areas in Sri Lanka and as former Magistrate in the area I am personally aware the indigent litigants could not even find the bus fare to come long distances to the courts and gave up their struggle to seek justice due to abject poverty. The decision of the LAC to establish a legal aid centre in Wellawaya with the assistance of UNDP access to justice program is a salutary step", said District Judge, Chinthaka Srinath Gunasekera. He praised the efforts made by Wellawaya District Judge I.R. de Silva to open a legal aid centre in the Wellawaya Courts"

LAC Chairman, S.S. Wijeratne said that equal access to justice to all promised in UN documents and our Constitution is meaningless unless practical steps are taken to serve the poor at the closest proximity at no cost.

During the past few years the Government and UNDP have supported this effort for the Law to benefit everyone but there still remains a long distance to go before we can say justice is accessible to everyone in this island.

LAC Director-General Justice Hector S Yapa detailed various services provided to the poor by the LAC and noted that the absence of a single Labour Tribunal in the Moneragala district which is one of the largest in the island should be rectified soon.

Senior Attorney-at-Law B.H.S. Jayasekera from Moneragala appreciated the decision of the LAC in establishing the Wellawaya Centre as poor litigants have to spend over Rs. 100 on bus fare alone to come to Moneragala. Further, three police Divisions in Wellawaya, Buttala and Thanamalvila generated a high volume of litigations where a majority of them were poor.

Newly appointed Wellawaya LAC Legal Officer Lakmali Wickramasinghe delivered the vote of thanks.

Questions and Answers

Question of nationality

Question - I was employed as a Kangany in an estate in Badulla for five years. I was posted as a Labourer to a Division. I did not go and work as a labourer. I appealed to cancel the posting. The management refused to do it. I have filed action in the Labour Tribunal alleging constructive termination of employment. The employer has raised a legal objection that my case cannot be maintained as I am an Indian National. Please advise me?

P.Anthony, Badulla

Answer - A Labour Tribunal is not required to go into the question of Nationality. It has to decide on the Justifiability or otherwise of termination of employment of a workman. The High Court in appeal has recently decided that the Tribunal cannot go into the question of Nationality.

Decisions of the Wages Boards exhibited in workplace

Question - I am told that decisions of the Wages Boards should be exhibited in the workplace for the employees to know their entitlements. Is this position correct? Please advise.

M. Ajith, Minuwangoda

Answer - Yes. It should be exhibited. The notice showing the decisions should be substantially in Form II under Regulation 25 of the Ordinance.

Pre-mature termination of contract

Question - I was employed as a Field Officer by an NGO for two years commencing from January 01, 2008 to December 31, 2009 at a monthly salary of Rs.30,000/= My contract does not say that it will be extended for a further period as determined by the Employer. I am now 53 years and took up this job leaving the other job on the understanding that I could work till the 31st of December 2009. I submitted my interim report last week. My presentation was appreciated by those present at the meeting.

The Program Manager suddenly informed me that my services will not be required after the 30th of September 2009. To-date I have not been found fault with my work. Neither did I receive any letters from my employer reprimanding me for any lapse. For that matter no letters have been issued to me calling for explanation with regard to my work. On the other hand I have been commended for my work. I seek your advice in the matter.

Sent by email

Answer - Your contract is for a period of two years. By September 31, 2009 you will be completing 19 months with your employer. You have three more months. According to your contract, your contract does not say that your contract will be extended for a further period.

You will therefore be entitled to claim compensation up to the end of your contract.

Since you have not been given any reasons for your termination in writing, you could seek relief before -

(a) The Commissioner of Labour under the Termination of Employment (Special Provisions) Act No.45 of 1971.

(b) Before a Labour Tribunal

You should apply to the Commissioner of Labour or to the Labour Tribunal before December 31, 2009 for relief.

Period of validity of travel documents

Question - My son is a frequent overseas traveller. Please let me know the period of validity of travel documents as I need to advise my son regarding this. Please advise through your Legal Aid Page.

M. Ibrahim, Galle

Answer - Official Passports and Ordinary Passports are valid for 10 years at the time of first issue. No Passport is valid for more than 10 years from the date of first issue.

On the expiry of 10 years from the date of issue, or if there are no pages for visa endorsements, a new passport should be obtained. There is no provision in law to attach additional pages to Passports.

Emergency Certificates are issued valid for two years at the time of first issue and can be validated for a further maximum period of two years. No Emergency Certificate can be validated for more than two years at a time.

Identity Certificates are issued valid for five years at the time of first issue. It cannot be validated for a period in excess of five years. It would be preferable, as a rule of thumb, for Missions to validate Identity Certificates and if necessary restrict the number of journeys.

Punishment meted out to drunkards

Question - I live with my family in a quiet residential area. However there is a drunkard person who utters filthy words when passing our house.

Kindly let me know whether such persons can be punished? Your kind reply is solicited.

P. Cedric,

Minuwangoda

Answer - Under the Penal Code - Section 488 whoever, in a state of intoxication, appear in any public place or in any place which it is a trespass in him to enter, and there conducts himself in such a manner as to cause annoyance to any person, shall be punished with simple imprisonment for a term which may extend to one month, or with a fine which may extend to one hundred rupees, or with both.