Legal aid commission

Judicial colloquium on ICCPR Act

The Judges Training Institute jointly with the Legal Aid Commission with support from the UNDP access to justice program would be holding a Judicial Colloquium on ICCPR Act on October 31. Chief Justice Asoka De Silva will inaugurate the Colloquium.

The International Convention on Civil and Political Rights (ICCPR Act No.56 of 2007) was enacted two years ago to complete certain gaps found in Sri Lankan Law relating to fully complying with the ICCPR Convention which Sri Lanka ratified as far back as 1981. Sri Lanka acceded to optional protocol affording opportunity to Sri Lankan citizens to make submissions to the Geneva based International Human Rights Committee when all local remedies were exhausted in national courts in 1998 during the stewardship of former Foreign Minister late Lakshman Kadirgamar, PC.

The Judiciary argued that as Sri Lanka implements a dualist Constitution and mere executive certification was insufficient to give legal effect to international conventions signed by the executive unless ratified by the Sri Lankan Parliament.

The full implication of this ICCPR Act has not been adequately examined or essential regulations enacted.

The proposed colloquium which would be addressed by experienced Supreme Court judges and international law experts is expected to activate this dormant legislation.

Landmark Judgment:

Access to police stations by Attorney-at-Law

In order to protect the liberty of the ordinary citizen's right to legal representation from the time of police detention is ensued in all civilized countries; both international and national human rights law in Sri Lanka acknowledges the existence of this right. However, in the absence of clear regulations many Attorneys-at-Law have faced harassment sometimes even physical abuse at the hands of the Police.

In the above context the guidelines agreed before the Supreme Court is of fundamental importance. It is hoped that the Inspector General of Police will formulate the guidelines as agreed in the Supreme Court without further delay.

However, the LAC pending promulgation of formal regulation is publishing the judgment and attachments for the benefit of the public.

"In the Supreme Court of the Democratic Socialist Republic of Sri Lanka.

In the matter of an application made in terms of Articles 17 and 126 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Dothalui Waniga
Chinthamanee Mohotti
No.1/2/4, Dias Place
Colombo 12

SC.Application
No.527/08 Vs Petitioner

1. Upul Seneviratne
Officer-in-Charge
Bambalapitiya

Police Station
Colombo 4

2. Jayantha
Wickremaratne

Inspector General of Police
Police Headquarters
Colombo 1.

3. Neville Piyadigama
Chairman
National Police
Commission
Rotunda Tower

Level 3

No.109, Galle Road
Colombo 3.

4. Hon.The
Attorney-General
Attorney-General's
Department
Colombo 12

Respondents
Before

J.A.N.de Silva, J
Balapatabendi, J
Ratnayake, J
Counsel

Sanjeewa Jayawardane for Petitioner

Ms.Anoopa de Silva,

SC, for respondents.

Argued & Decided

on 29.04.2009

J.A.N.de Silva, J

Mr.Sanjeewa Jayawardane who appears for the Petitioner and Ms.Anoopa de Silva, SC who appears for the Attorney-General submit that the parties have settled this matter and terms of settlement have been tendered to court with annexure marked 'A'. Counsel inform court that the proposed rules are in that annexure and the Inspector General of Police will take steps to gazette the said regulation with the approval of the Minister.

The 1st Respondent apologized to the Petitioner in open court.

These proceedings are terminated.

Sgd.

JUDGE OF

THE SUPREME COURT

SC Application

No.527/08

Balapatabendi, J

I agree

Sgd.

JUDGE OF

THE SUPREME COURT

Ratnayake, J

I agree

Sgd.

JUDGE OF

THE SUPREME COURT

There has been in the past, certain incidents pertaining to the treatment meted out at Police Stations to members of the Legal Profession of Sri Lankan and these have tainted and sullied the public image and reputation of the Sri Lanka Police Force and undermined the usually cordial relationship between the Sri Lanka Police Force and the members of the Legal Profession of Sri Lanka.

One such encounter has culminated in the institution of Fundamental Rights proceedings against the Police and there is general consensus and recognition of the imperative for the introduction of formal, binding and enforceable rules to be framed in terms of the applicable statutory provisions, in order to prevent the recurrence of such incidents and to punish and satisfactorily deal with those members of the Police who indulge in conduct which results in such incidents and undermines the relationship between the Police and the Bar.

The governing body of the Bar Association of Sri Lanka has assured the Sri Lanka Police Force of the full corporation and assistance by the Bar Association and its members, in the performance by the Police Officers, of their lawful and legitimate duties.

In pursuance of the powers vested in me, under and in terms of Section 55 of the Police Ordinance No.16 of 1865 as amended, I hereby issue the following formal rules for the observance of all and every Police Officer under my control and purview.

These rules shall apply to all members of the Sri Lanka Police Force.

"A"

1. Every officer of the Police Force shall fully recognize the rights of an Attorney-at-Law to the Legal Profession of Sri Lanka to represent and/or watch the interests of his client, whether such client is a suspect or otherwise, at any Police Station, Police Head Quarters and/or any other permanent unit, base, post or such like that has been established by the Sri Lanka Police situated islandwide.

2. Every officer of the Police Force shall at all times, treat any Attorney-at-Law who enters the precincts of a Police Station, Police Head Quarters and/or any other permanent unit, base, post or such like that has been established by the Sri Lanka Police, for the purpose of representing and/or watching the interests of his client, cordially, and courteously, and shall afford to such Attorney-at-Law all reasonable assistance during the course thereof. An Attorney-at-Law surrendering a suspect would be entitled to entrust him to the custody of the OIC or to the most senior officer present in the Police Station. At the time of surrendering the officer who takes charge of the suspect shall record the name of the AAL who surrendered such suspect and also the time at which the suspect was surrendered.

3. No officer of the Police Force shall in any manner or circumstances whatsoever, use, physical force, abusive language or resort to any other intimidatory conduct in respect of any person.

4. Any officer of the Police Force, who shall be found to have acted in any manner violative of these rules, shall be severely dealt with according to the available procedures, including under and in terms of Section 55 of The Police Ordinance. In addition thereto, such officer may also be liable to any other disciplinary inquiry/proceeding that may be held and punitive sanctions that may be imposed.

5. Any officer of the Police Force who is found to have aided and abetted any other Police Officer, whether his superior, peer, or subordinate, to engage in any conduct and/or acts and/or omissions which constitute a violation/s of these rules, shall also be deemed to have acted in violation of these rules and be dealt with accordingly.

6. If there is reasonable cause to require the Attorney-at-Law in question to identify himself as a member of the legal profession of Sri Lanka, then the production by such Attorney-at-Law of either the identity card issued to him by the Bar Association of Sri Lanka or a National Identity Card which identifies his profession as that of an Attorney-at-Law, shall suffice and every officer of the Police Force shall duly recognize and accept such identification.

7. The Inspector General of Police shall at all times implement and enforce the said rules framed under section 55 of the Police Ordinance and copies of such rules shall be issued to the Officer-in-charge of every Police Station, Police Head Quarters and/or any other permanent unit, base, post or such like that has established by the Sri Lanka Police situated islandwide and it shall be the responsibility of such Officer-in-charge to issue copies of such rules to every officer under his purview and command and to generally disseminate information with regard to the content of the rules and to ensure due and strict observance of such rules.

8. There shall be established a four member special committee comprising a senior officer of the Attorney General's Department not below the rank of Additional Solicitor General, (who shall also be the ex-officio Chairman of the said committee) the President of the Bar Association of Sri Lanka, the Director Legal of Sri Lanka Police, and a serving member of the National Police Commission, which committee shall be charged with the function of monitoring and facilitating the due and proper observance of these Police Rules and reporting any breaches thereof to the Inspector General of Police and generally, to do all such acts that may promote and foster better relations between the member of the Legal Profession and Sri Lanka Police Force.

9. Such committee shall also be entitled to make recommendations and reports to the Inspector General of Police, the Honourable Attorney General and the National Police Commission as the case maybe, with regard to any breach of such rules and in respect of the proceedings that should be instituted thereon against the officer in question.

10. The meetings of the said committee shall be convened by the Chairman of the said committee or upon the specific request made by a member of the said committee, as the case may be".

Diploma in Commercial Arbitration

Those who wish to follow the Diploma in Commercial Arbitration should possess an academic or professional qualification or experience in a professional practice such as law, accountancy, engineering, banking, architecture, IT etc.

The course which commences on October 24, 2009 will be of four to six months duration. Lectures will be conducted on Saturdays from 9 a.m. to 1.30 p.m. at the ICLP Auditorium, No. 61, Carmel Place, Colombo 3.

The course lecturers are: Justice Saleem Marsoof PC, Justice P.A. Ratnayake, Justice Hector S. Yapa, S.S. Wijeratne, K. Kanag-Isvaran PC, Dr. Harsha Cabral PC, Dr. E.M.G. de Zylva, Prof. Chitra Wedikkara, Walter Laduwahetty, Leslie Abeysekara, Uditha Egalahewa, AAL, Ms. Shehara Varia, AAL Ananda Ranasinghe, AAL Arjuna Obeysekera, AAL, Jayantha Fernando, AAL and Sunil Abeyratne, AAL.

For details contact: ICLP Arbitration Centre, No. 61, Carmel Road, Colombo 03, Telephone: +94(0011)2346163/4, Fax: 2346163, Email: [email protected], Website: http://www.iclparbitrationcentre.com

Questions and Answers

How to obtain death certificate?

Question: Please let me know -

(a) Where do I obtain the Application Form to obtain a death certificate?

(b) How do you obtain a copy of death certificate in the case of a death occurring in a hospital?

(c) Your early reply would be greatly appreciated.

S. Godwin, Kesbewa.

Answer: (a) You can obtain the Application Form from the Registrar General 's Department website www.rgd.gov.lk or any of Divisional Secretariat Office islandwide. There is a printed application form for this purpose. The application form number is 63A.

The above mentioned aplication form requires a stamp fee of Rs. 50.

(b) To obtain a copy of a Death Certificate you have to submit an application through post to the Divisional Secretariat Office where the death was registered.

If the death occurred in a hospital in Colombo or in a recognized private hospital in any area, you should send your application to the Divisional Secretariat Office where the hospital is situated. If you need further clarification you can visit our Legal Aid Commission, Head Office in Colombo.

Bank needs pedigree of land to grant loan

Question: Very recently I purchased a block of land from Kottawa. I now hope to construct a house of my own in the said land. Since I do not have sufficient funds in hand, I intend to obtain a housing loan from a Bank. One of my friends who is working in a Bank told me that the Bank will want to look at the pedigree of the land which I have purchased. As I have no idea of what a pedigree is, I would be thankful to you, if you could kindly explain this to me.

P.H. Amith, Polgasowita.

Answer: A pedigree is a claim in which the relevant details of an abstract of title are summarized. As in an abstract of title, the titles of a property from the 1st owner to the present owner has to be stated in the pedigree, along with details as, the names of the transferor or transferee, nature and the number of the deed, date of attestation and the name of the Notary.

Banks and other financial institutions require a title report along with a pedigree in granting a loan on a property as it helps to find out the history of the property without much confusion. A pedigree helps to examine a title of any particular property.

If the property is gained by intestate succession, the portion of property gained by inheritance differs according to the law the deceased was governed. Namely, Roman Dutch Law, Kandyan Law, Thesavalamai Law or Muslim Law.

Filing of testamentary case for ownership?

Question: I am an 85 year old engineer, retired from Government Service. Together with my wife we have several Bank accounts and several investments.

The fixed deposits in companies all are joint accounts.

Please let me know in the event of the death of either of us, whether the survivor becomes the sole owner of these assets, or will there be a testamentary case for ownership. I have written a Last Will conferring all my assets to my wife. I have three children who are grown up and settled down in life.

A. Dewapura, Athurugiriya.

Answer: According to your facts, you have mentioned that you have nominated your wife as the nominee of your Fixed Deposits.

Therefore, she may be entitled to utilize your funds in your Fixed Deposit upon your death.

With regard to your Joint Bank Accounts, your wife, has the legal rights to operate the said Bank accounts after your death without instituting any testamentary action.

If you have not properly disposed of or transferred all your assets to your children in your Last Will, that may cause your children to institute testamentary action if the value of the assets exceed Rs. 500,000.

House and property gifted to son

Question: I am a 78 year old pensioner. I have gifted my house and property to my son, keeping life interest for me and my wife.

I like to know whether I will be able to -

1. Sell the house and property

2. Rent out a portion

3. Lease out a portion of the house.

At present my income is not enough for me to live.

P. Samsudeen, Seeduwa.

Answer: 1. With regard to your first query, the answer is "No". You have no legal right to sell the property.

2. With regard to your second and third queries, as you and your wife are the life interest holders, you can rent out or lease out your house until you and your wife's death. After the death of both of you, your son will automatically become the legal owner of your property.

HRC orders not being implemented

Question: I made an appeal to the Political Victimization Committee and a decision has been given to promote me with increment with effect from a certain date.

However, since it was not implemented, I made a complaint to the Human Rights Commission. I heard from a friend of mine that HRC orders cannot be implemented. Is this true? Please advise.

M. Keerthiratne,

Nittambuwa.

Answer: The answer is 'Yes'. Even though the Human Rights Commission is empowered to make an order and/or recommendation, there is no mechanism to implement the same.

According to your question it is not clear to us as to when you received the order of the Political Victimization Committee. However, if it is given in the recent past, although one month has lapsed, you can file an application on the basis of continued violation of your rights under Article 12 (1). It is advisable to get clear instructions from a lawyer before you proceed to file action.

Punishment for forged documents

Question: What do you mean by 'forged documents' and what is the punishment for forgery? Kindly explain through your valuable Legal Aid Page.

S. Jayantha, Piliyandala.

Answer: Under the Penal Code a 'forged document' means a false document made wholly or in part by forgery.

Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.

Placing of finger prints on EPF/ETF documents

Question: Why do you place your finger prints particularly on EPF/ETF documents. Your early reply would be greatly appreciated.

P. Sylvester, Kandana.

Answer: The importance of placing finger prints legibly is that the Commissioner of Labour must be satisfied about the identity of the member when refund of benefits is made.

For this purpose the availability of clearly readable fingerprint of the member is regarded as a necessity of vital importance. This would also ensure the security of member's funds.

At the time of joining an establishment, the employee could assist the employer by placing legible fingerprints in 'A' 'B' & 'H' forms. It is also important to place your fingerprints legibly in the "K" form after completion of your tour of duty. At this stage by comparison of fingerprints placed on forms 'A', 'B' & 'H' at the time of joining an establishment with the fingerprints placed in form "K" forwarded at the stage of refund claim would facilitate authentic identification of the employee.

This should ensure safety of refund of benefits and prevent any attempt by a third party to obtain benefits fraudulently.

Certificate of origin

Question: I am working as a trainee wharf clerk in a Clearing and Forwarding Agency. During the discharge of my duties I am asked to attach the Certificate of Origin along with the other export documents. Please let me know what you mean by a Certificate of Origin. Since I am a trainee in the field, I would like to know exactly what this document means. Kindly clarify.

C. Selvakumar, Kotahena.

Answer: A Certificate of Origin (COO) is a document which is used for certification that the products exported are wholly obtained, produced or manufactured in a country of origin. It is generally an integral part of the export documents. A Certificate of Origin, apart from indicating the country of origin of the export products, enables the exporting countries to obtain specific import tariff concessions from the importing countries.

Filing of FR cases after one month

Question: Can a fundamental rights case be filed in the Supreme Court of Sri Lanka after one month? Please advise me.

Ignatius Fernando, Ja-Ela.

Answer: No. Article 17 read with Article 126 of the Constitution clearly states that the time limit is one month from the date of violation. Therefore such an action cannot be sustained in the Supreme Court.

However, if one is prevented or incapacitated from invoking the fundamental rights jurisdiction - e.g. incarcerated or hospitalized, then one month will not begin to run until such is removed. Alternatively one can go to the Human Rights Commission (HRC) within three months from the date of such violation. If three months have lapsed, HRC will not entertain any complaints as per their new circular which stipulates the time limit as three months.

 Is abortion legalized in Sri Lanka?

Question: I wish to know whether abortion is legalized in Sri Lanka? Your kind reply would be greatly appreciated.

Sent by Email.

Answer: No. Abortion is not legalized in Sri Lanka. Under the Penal Code it is a criminal offence . The Penal Code provisions are defined as the causing of miscarriage, or injuries to unborn children, as follows:

Sections:

303 "Whoever voluntarily causes a woman with child to miscarry shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished extending to three years, or with fine, or with both; and if the woman with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be liable to fine."

304 "Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is with child or not, shall be punished with imprisonment of either description for a term which may extend to twenty years, and shall also be liable to fine"

305 "Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to twenty years, and shall also be liable to fine".