Features | Online edition of Daily News

On October 24, the United Nations celebrated its 64th anniversary comparatively in a subdued manner in Sri Lanka. Sri Lanka (Ceylon) became a member of the United Nations on December 14, 1955 after several unsuccessful attempts since independence from the British in 1948.

Since her entry, Sri Lanka has continued to be a strong supporter of the ideals and international programs of the United Nations and the majority of her specialized agencies, except for few recent strains.

On October 13, 2005, President Mahinda Rajapaksa celebrating the 50th Anniversary of Sri Lanka's entry to the United Nations stated "We, for our part, are proud to say that in the course of our membership of the United Nations that spans a period of 50 years, Sri Lanka has consistently assisted in the achievement of the noble ideals for which the organization was founded.

Our country has contributed to consensus building in the UN in a number of landmark international issues.

These include the law of the sea, the fight against terrorism and the promotion and protection of human rights".

President Mahinda Rajapaksa addressing the UN General assembly in September 2008 both in Tamil and English concluded his statement thus "As a country, we are firmly committed to the principles and purposes of the United Nations.

As such, we are ready to work with other member states and the UN Secretariat to usher in the necessary reform, to strengthen the UN to be a dynamic organization that will ensure global peace, and social as well as economic advancement for all, Mr.President, I wish to conclude my address with a stanza from the Dhammapada, the words from the enlightened one -

"Victory breeds hatred
The defeated live in pain
Happily the calmed live
Having set victory and
defeat aside"

Many social justice issues that have arisen after the military defeat of the LTTE terrorists in respect of the ordinary citizens in the Northern and Eastern provinces need to be assessed and resolved from the Dhammapada stanza quoted above. Restoration of the judicial and mediation processes in the affected areas are that steps should be taken urgently.

The 2009 practical training program for nearly 400 legal apprentices was held at the BASL Auditorium recently. Here LAC Apprentice Training Coordinator Damayanthi Dissanayake, AAL addressing the inaugural meeting. Sri Lanka Law College Principal Dr. W.D. Rodrigo, LAC Chairman S.S. Wijeratne and LAC Director - General Justice Hector S. Yapa are in the picture. (Right) A section of the apprentices who participated. Picture by W.H. Chandradasa

The Legal Aid Commission on its part provided legal aid to war affected persons having established Legal Aid Centres in the courts in Northern and Eastern provinces from 2002. However, during the midst of the conflict the legal aid lawyers were restrained by the LTTE who closed many regular courts and established their own courts in places like Mullaitivu and Kilinochchi. Northern lawyers who have taken professional oath before the Supreme Court were compelled to take a LTTE oath if they wanted to appear in these ad-hoc courts. Many regular lawyers refused the illegal oaths and gave up their legal practice. They are now free to help the affected population to resolve the myriads of legal problems regarding property, possession and commercial transaction that was unattended for decades.

The United Nations High Commission for refugees, which is the key UN Agency mandated by the UN Secretary-General to assist the national authorities in resettlement and rehabilitation of IDPs should continue to support the efforts of the Legal Aid Commission to legally rehabilitate the war affected gradually. The Mediation Board Commission which resolves disputes without victory or defeat' in court also need extensive financial support preferably from the UN family.

In view of the highly critical and jaundiced assessment of the defeat of terrorism ala Sri Lankan way, most of the donor countries are still skeptical about continuing traditional bilateral human rights support. However, UN Agencies with a few exceptions were careful in assessing the national security needs of a member state to defeat the world's most fierce terrorist movement. Defeating terrorism worldwide is one of the main objectives of the United Nations.

Former Prime Minister, SWRD Bandaranaike told the General Assembly on September 22, 1956, in the first one year after Sri Lanka's admission to the United Nations as a member stated " My country is a small one, a weak one and a poor one, but I venture to think that today, particularly in an Organization such as this, the service that a country can render - that a Member can render -is not to be measured alone by the size of that country, its population, its power or its strength.

This is an Organization which expresses itself most effectively by bringing to bear a certain moral force - the collective moral force and decency of human beings.

That is a task in which the weak as well as the strong can render a useful service, and I give the assembly the assurance, on behalf of my country, that as far as we are concerned, every endeavour that we can make in all sincerity to assist in the achievements of those noble ideals for which this Organization stands, will always be forthcoming in the fullest measure".

Judicial colloquium on Saturday

A Judicial Colloquium on the implementation of the ICCPR Act will be held on October 31 at the Cinnamon Grand Hotel. Registration begins at 9 a.m. followed by the lighting of the oil lamp at 9.15 a.m. The welcome address will be followed by the Introductory Remarks by Chief Justice Asoka N. De Silva. A panel led discussion on the back ground and a brief introduction of the ICCPR Act will be at 10.30 a.m. The presenter will be Supreme Court Judge, Justice P.A. Ratnayake. The panel includes Justice P.H.K. Kulatilaka and S.S. Wijeratne.

A panel led discussion titled "Right to access to service provided by the State" will be presented at 11.30 a.m. by Legal Aid Commission Director General Justice Hector S. Yapa. This will be followed by lunch at 12.30 p.m. The next discussion will be held at 1.30 p.m. titled" Entitlements of an alleged offender".

The presenter will be Additional solicitor General Palitha Fernando PC. The Chairman for this panel discussion will be Justice Nissanka Udalagama. The discussion titled "Right to be recognized as a person before the law and the Rights of a child" will be presented at 2.30 p.m. by LAC Chairman S.S. Wijeratne. The panel will include Justice Hector S. Yapa and Justice P.H.K. Kulatilaka. The concluding remarks will be at 3.30 p.m.

Legal profession duty bound to assist poor - LAC Chairman

Inaugurating the 2009 practical training program for nearly 400 legal apprentices, LAC Chairman S.S. Wijeratne said that the legal profession in addition to legal work for which fees are collected are duty bound to assist the poor litigants who are unable to have equal access to judicial institutions due to poverty.

In many countries, rules governing the duties and ethics of lawyers provide for devotion of some of the professional time free to assist the poor by providing free legal advice and when needed legal representation in court. This golden principle of the legal profession has never taken root in this country despite 160 year legal history.

LAC Director-General Justice Hector S Yapa, requested the budding lawyers to always remember that they function as officers of court and are duty bound to assist the court when a request is made to help a unrepresented client to facilitate the work of the judiciary.

Sri Lanka is one of the countries which provides free education and health since independence but have failed to provide free access to justice despite constitutional provisions regarding equality before law.

During the past few years the Legal Aid Commission has established 56 Legal Aid Centre in all the major courts to provide free legal advice and representation to the poor and conduct legal awareness at the community level. Justice Yapa invited the new lawyers to assist in the legal awareness programs.

Sri Lanka Law College Principal Dr. W.D. Rodrigo who is also the administrator of the LAC thanked the Coordinator of the Annual Apprentice Program, Damayanthi Dissanayake, AAL for the tremendous efforts made annually to familiarize apprentices in court work and specialized subjects. Mrs. Damayanthi Dissanayake thanked the apprentices for participating in large numbers.

Questions and Answers

Accident case

Question: My brother met with an accident two years ago and broke his leg. The Magistrate's Court case was over and the driver of the vehicle was convicted. A civil case has presently been filed and the case is pending. While the civil case is going on, my brother met with another major accident and died on the spot.

Please let me know, in such a situation, whether the civil case will be dismissed on the ground that the Plaintiff (my brother) is dead. My parents are too old and they are not in a position to hang around in courts. I am his only unmarried sister and my deceased brother was the breadwinner in our family. Please advise us.

Answer: In such situations, your parents or the deceased's heirs can be substituted as a party to the case and proceed with the civil case. Substitution should be made as soon as possible before the next date of the case.

Further we would like to advise, your parents can also file another civil case in respect of the second major accident of your brother within two years from the date of the accident. If you need further advice regarding this matter you can visit any of our Legal Aid Centers established islandwide.

Can JPs demand money?

Question: Please be good enough to let me know through your Legal Aid Page whether a Justice of the Peace can demand money from the public for signing affidavits or any other document issued to them. There is a JP in my area who is demanding as much as Rs. 100 to Rs. 200 or sometimes even more. I want to know whether -

Answer: JPs are appointed by the Ministry of Justice. As they do an honorary service, they cannot take any money from the public for services rendered by them. Nevertheless JPs receiving any money from the public does not come under the Bribery Act and therefore it is not considered as a bribe. However, you can make a complaint regarding the said JP to the Ministry of Justice and the Justice Ministry can suspend his services for such action.

Is it an offence to sell any item below marked price?

Question: Please be good enough to reply the answers to the following questions through the Legal Aid Page -

Answer: There is a difference between the market price and the marked price. The market price means any selling price in the market. The marked price means the price marked on the product. Selling at a higher price than the marked price is an offence. It is an offence under the Consumer Affairs Authority Act No. 09 of 2003. According to the said Act, selling any items below the marked price is not an offence.

Misuse of funds

Question: My brother was employed in a tea exporting company for over five years and his services were terminated for reasons of fraud (misappropriation of funds of the company). Since he has completed over five years of service in the company, I know for sure that my brother is entitled to his gratuity payments. However, I wish to know whether the Company can deduct the amount misappropriated by my brother from the gratuity payable to him. I await your kind reply.

Answer: The employer is entitled to make deductions from the gratuity payable under the Gratuity Act in the following circumstances:-

(a) The termination of services for reasons of fraud, misappropriation of the employer's funds.

(b) The termination of services for willful damage to the property of the employer.

You will therefore note from (a) above that the company can make deductions from the gratuity payable to your brother. The forfeiture can be made only to the extent of the damage or loss caused. Loans and advances cannot be deducted from gratuity payments.

Delays caused to public in Pradeshiya Sabhas

Question: I have purchased a block of land in a certain area and submitted a building application to the relevant Pradeshiya Sabhawa. Almost three months have lapsed but still I have not got the approval from the relevant Pradeshiya Sabhawa. The Technical Officer has already visited my land. Thereafter, I visited and spoke to the Technical Officer, I was told to come on another day. The day I was asked to come, the Officer was absent. I did not get a favourable response from the subject clerk who pretended to be busy with some other matters. Please advice me regarding this matter.

Answer: If the Technical Officer had visited your land and if you were not informed of any lapses in the plan, there is no reason why it should not be approved.

The new ICCPR Act No.56 of 2007 provides a remedy against public servants who fail to do their duty. Section 6 of the Act recognizes the right of citizens to have access to services provided to the public by the State.

If you have complied with the requirements, of which you have a right to be informed of, you can file action in the High Court as provided by Section 7 of the said Act within three months of the violation of the right.

Filing Writ application

Question: I have been in the Sri Lanka Administrative Service for the last two years.

To my surprise I received a letter dismissing me from service for failure to disclose correct information at the time I was recruited to the service. The letter is also not written by the appointing authority. Is it possible to file a writ application?

Answer: Under Article 55 of the Constitution any matter concerning an appointment, transfer, dismissal or disciplinary control of a public officer can only be challenged by way of a Fundamental Rights application.

From what you have revealed there is a possibility to file a FR case which has to be filed within one month as the dismissal was effected by some one other than the appointing authority. However, make sure that there are no circulars delegating the powers of dismissal to any other officer.

When does Commissioner of Labour determine wages?

Question: When does the Commissioner of Labour determine Wages? Could you kindly let me know?

Answer: He does so under the following circumstances-on an order by Gazette notification by the Minister authorising him to determine a time rated Wages Board.

(ii) When the Wages Board established does not determine the general minimum time rate before expiry of one year from the date of establishment of the Wages Board.

Can long time separation nullify a marriage?

Question: I got married in 1990. One year after the marriage, my husband went to Galle to do business and he never returned. I wrote several letters requesting him to comeback but he refused to do so. At present I am living with my mother for the last 16 years.

I want to know whether I could obtain a divorce from my husband? Please advise me.

Answer: If you could establish that his long stay in Galle amounts to malicious desertion, you will be able to obtain a divorce on that ground.

Legal aid commission