Legal aid commission

Election observation and monitoring

Election observation and election monitoring is promoted in all democratic States as part of global democratic governance. The United Nations, International Human Rights Organization, and since of late even the Bretton Woods Institutions have been promoting 'free and fair' elections as the basis for good and accountable governance. International legal basis for global concern for free and fair elections is derived from Article 21 (3) of The Universal Declaration of Human Rights which reads "The will of the people shall be the basis of authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures".

The spirit of this universal provision permeates through all the constitutions of democratic countries in the world including that of Sri Lanka. Article 93 of the present Sri Lankan Constitution states "The voting for the election of the President of the Republic and of the members of Parliament and at any Referendum shall be free, equal and by Secret ballot". The right to universal franchise is ensured in Article 4 (e) of the Constitution.

The Sri Lankan electorate proved to be a vibrant democracy and since 1931 conducted 15 major General Elections and five Presidential Elections and one Referendum and changed the Government in power six times and with few exceptions passed the acid test of 'free and fair elections'. Of the 188 countries of the United Nations less than 40 countries can boast of a record similar to that of Sri Lanka. The men who stood behind this exemplary record were the Sri Lankan public servants and an informed electorate.

In keeping with global trends some form of election monitoring only started in 1988. Hence, the international election observers and professional civil society election monitors should respect the independence of the time tested election management authority; the Department of Elections and the maturity of the Sri Lankan electorate in the same way they would have done if they were monitoring the election of a western democracy.

The supervision or monitoring of the election process is the sole responsibility of the Election Commissioner (In the absence of an Independent Election Commission) and his support staff and the candidates and their registered agents. However, under Article 103 of the Constitution the Commissioner of Election once appointed is expected to discharge his functions independently according to law. (Article 104). The Executive and in my view, even the Judiciary should not interfere with the right of the Commissioner to carry out his functions when done according to law.

International election observers

Even though the election law does not specifically empower the Election Commissioner to invite International Election Observers or secure the assistance of local civil society election monitors, the Constitutional requirement under Article 93 to conduct all elections in a free, equal and by secret ballot entitles the Commissioner to secure the services, observers and technical assistance from any neutral source to carry-out his mandate.

Hence the Commissioner may invite the assistance of international election observers either on the long term basis; from nomination to Election Day and its immediate aftermath, or short-term observers who come few days before the Election Day.

The invitation by the Election Commissioner to the International Election Observer is an independent act of the Election Commissioner on behalf of the State of Sri Lanka and not of the incumbent Government. The Election Observers are expected to conduct themselves all times on the basis of this legal assumption.

Observer agreement

The legal basis for the election observers to operate during the election period would be on the basis of a comprehensive legal agreement, between the Commissioner and the observer group. This agreement normally referred to as the 'Observer Agreement' spells out the objective, respective rights and obligations, the terms of reference, methodology and logistical support, relationship with media and the format and the time frame for the final comprehensive report. The Election Commissioner is expected to issue instructions to his returning and presiding officers and to the police on the rights and obligations under the observer agreement. This legitimate cooperation would enable the observers to provide a comprehensive report on the free and fairness of the election. Observer reports would normally help to correct the shortcomings at future elections.

Rights and duties of International Election Observers

The International Observers, who are the neutral guests of the Election Commissioner normally, follow the code of conduct jointly developed by the United Nations and the International Institute of Democracy and Election Assistance (IDEA) following an International Conference in 1996.

Relevant sections of this Code of Conduct may by mutual agreement incorporated in the 'Observer agreement' with the Election Commissioner. The general objective of election observance as defined in the Code is "the purposeful gathering of information regarding an electoral process and the making of informed judgments on the conduct of such a process on the basis of information collected by persons who inherently not authorized to intervene in the process..." According to the International Code of Conduct the Election Observers should respect the following principles.

Respecting sovereignty of country

International Observers are the guests of the Election Commissioner and not of the prevailing government, and as such they should enter into a comprehensive observer agreement with the Commissioner securing their impartiality, which should be a public document.

Since private election monitoring groups also invite foreign observers the official observer group would have a different status on the basis of a transparent observer agreement. International Observers should refrain from transporting foreign election procedures and are bound to act within the election laws of Sri Lanka. They should respect the Sri Lankan people and their culture and should not do or say anything to undermine duties of the national election officials. If any concerns arise regarding the impartiality of the election officials, such concerns should be brought to the attention of the Election Commissioner and no one else.

Public Legal Awareness Unit

Questions and Answers

Fundamental Rights violations

Question: I shall be thankful if you please publish the answers to the following questions:

People talk about Human Rights Violations and Fundamental Rights Violations but at times those who get victimized in the public service have no remedy due to heavy expenses. A friend of mine has not been given her promotion without any reason other than the malice of the Head of the Institution. She has exceeded her salary scale also. Even if she is promoted she gets the same salary. There is no monetary benefit. But she cannot go to the Supreme Court because of the high fees charged by the lawyers. She was asked to pay Rs. 50,000/= for the case which she cannot afford as she has no savings. In this instance, please answer the following:-

1. Can she report to the Parliamentary Commissioner?

2. I hear his decisions are not respected by the high Officers? Is this true?

3. In that event how to enforce his order?

4. Do the Lawyers of the Legal Aid Commission appear free of charge in cases of fundamental rights violations involving public officers irrespective of the income of the victim?

Haritha J Perera,

Galigamuwa.

Answer: She can make a complaint to the Ombudsman but there is no effective mechanism to get the recommendations implemented.

If she can make a complaint to the Public Service Commission and if the order is not in her favour, she can appeal to the Administrative Appeals Tribunal. If the order of the Administrative Appeals Tribunal is not implemented, you can file a writ application asking for a writ of mandamus to get the said order enforced.

The Legal Aid Commission cannot appear in cases where the clients earn more than Rs. 6,000 per month.

Elders Identity Card

Question: Please be good enough to inform through your esteemed page how I could obtain an Elder's Identity Card. Could another person help me to get the card on my behalf? I am too old to move about alone. I await your kind reply.

T.S.V.Rajan,

Dehiwala.

Answer: You can obtain the Elders Identity Card through the Divisional Secretariat Office in your area. In each office there is an Officer-in-charge of the Social Service Department. Either yourself or your representative with your letter has to meet him to obtain the Elders' Identity Card.

You have to submit the following:-

* Three photos (Passport size)

* Birth certificate

* Photocopy of the National Identity card

* Letter of the Grama Niladari

Then they will help you to obtain your Elders Identity Card. If you cannot go personally, you have to write a letter to granting permission to him to work on your behalf.

How to obtain new identity card?

Question: I have handed over the necessary documents to the Office of the Registration of Persons on 21.09.2005 to obtain a new National Identity Card through 'One Day Service' for a close relation of mine as her old Identity card gas been defaced (Ref.No.CA 448207).

At the end of the day, when I produced the receipt issued to me in the morning to collect the Identity Card, the gentleman at the counter had refused to hand over the same to me and informed that my relation should come to collect it. Although I have explained to him her inability to come to collect it due to her illness, he insisted that she should come. Ultimately, he has refunded the fee of Rs.500 paid by me in the morning for one day service.

Subsequently, I went with my relation and made representations on this matter several times to obtain the Identity Card. But still she was not able to obtain the same and I understand that the papers are not traceable now.

My relation is intending to apply for a new Identity Card again. But she is unable to produce the old Identity card as it was attached to the previous application. The number of the old Identity Card is 407790726 and the date of issue is 12.11.1973. She also does not have a Birth Certificate. In a reply to a question published recently in the Daily News Legal Aid Page, it was indicated that persons reaching the age of 65 years can apply for an Identity Card without a Birth Certificate and it has to be proved by way of an Affidavit, Birth Certificates of children and Grama Niladhari Certificate. But as my relation is not married she is not in a position to produce Birth Certificates of children.

Can you please help to get this problem solved.

Rodney Frank de Silva,

Piliyandala.

Answer: We can refer your matter to the Commissioner of the Registrar of Persons Department. Please send us a letter in detail including the date of incident, the Application Form and the Receipt Number. If the problem has arisen through the negligence of the Department, then you have right to inform the relevant authorities. Under Section 6 of the ICCPR Act No. 56 of 2007, you can file action in the High Court against the relevant Government authorities.

Elders' rights

Question: We are senior citizens in our area. We have established an Elders' Society with the guidance of the Grama Niladari in our area. We like to know about the Elders' rights. What are the rights relating to the elders under the Elders Law. What kind of help can we get in relation to Elders rights?

P. Somawitarana,

Mahawewa.

Answer: Protection of the rights of the Elders Act No 09 of 2009 - Section 15 states the rights of the elders.

Under Section 15(1) "Children shall not neglect their parents willfully and it shall be the duty and the responsibility of children to provide care for, and to look in to the needs of their parents".

Section 2 states "The State shall provide appropriate residential facilities, to distribute elders who are without children or are abandoned by their children".

Section 3 states "No elder shall, on account of his age, be subject to any liability, restriction or condition with regard to access to or use of any building or place or institution which any other person has access to or is entitled to use, whether on payment of any fee or not".

The Legal Aid Commission has set up an Elders' Unit which is coordinated by Attorney-at-Law Piumi Kumari, If you wish to get any advice or legal consultation you can contact the following address:

Legal Aid Commission,
Elders' Unit,
No.129 ,
Hulftsdorp Street,
High Court Complex,
Colombo 12.
Tel. No. 0113137153

National Identity Card

Question: My grandmother is 80 years old. She has no Birth Certificate. I want to know whether she could obtain a National Identity Card without her Birth Certificate?

Munidasa Hewawitarana, Anuradhapura.

Answer: Yes. without her Birth Certificate she can obtain the National Identity Card. She has to obtain the Application Form from the Grama Niladhari of your area or if living in an estate from the Superintendent of the relevant estate.

The following documents should be submitted for obtaining an Identity Card.

1. R.P.D.01 Forms

2. Birth Certificate and Estimated Age Certificate

If your grandmother's Birth Certificate or estimated age certificate is not available one or two of following documents can be submitted.

* School Leaving certificate

* Baptisma certificate

* A copy of the Children's birth certificate indicating His / Her birth date

* Extracted part of the birth certificate

* Citizenship certificate

* Estate leaving certificate (If birth date is included)

* Certified pages of the passport

* Birth card issued by the estate superintendent

* Horoscope

* Search certificate of the registrar general

3.05 colour photographs

4. Stamp Fees

* 16 - 17 Years - Rs.3.00 stamp fees

* Over 17 Years - Rs.13.00 stamp fees

Documents to certify residence -"Certificate issued by the Grama Niladhari"

If this certificate is not available one or more documents shown below should be presented:-

* Certified copy of the voters' Register

* Bank statement certified by the bank

* Certified copy of the telephone bill

* Certified copy of the electricity bill

* Certified copy of the land deeds confirming ownership

* If the land is rented or leased relevant agreement.

* Receipt of tax payment

* If temporary residents the Letter informing the stay to the police station, should be produced with the above documents.

After filling the Application Form, you have to submit all the Documents to the Grama Niladari or Registrar of Persons Department, C45, Keppetipola Mawatha, Colombo 05.

(If you submit all the documents directly to the department it has to be certified by the Grama Niladari and the Divisional Secretary where your Grandmother resides.

If you need any help relating to this issue, you can visit anyone of our Legal Aid Commission Centers islandwide and they will help you to prepare the relevant documents.

Pension Matter

Question: We are Government pensioners living in Australia. We are drawing our pension under the foreign pension scheme. We want to know whether under the new circular we could open a joint account at the Queen's Branch.

P.Wedamuni,

Sent by email

Answer: Under the new pension circular the Sri Lankan pensioners who have either permanent residence or citizenship rights abroad could now draw their pensions under one of the two modes, namely: (1) via the Sri Lankan High Commission or Embassy in the residential country or (2) by opening a Special bank Account at the People's Bank in Sri Lanka.

If you willing to draw pensions from Sri Lanka, arrangements have now been made for such pensioners to open single accounts at the Queen's Branch of the people's bank in D.R.Wijewardene Mawatha, Colombo 1 and withdraw pensions fully whenever they return to Sri Lanka. For this purpose, joint accounts are not accepted.

Facilities made available earlier for the pensioners to draw pensions from any Bank in Sri Lanka were abolished considering the high rate of fraudulent practice involved in that system.

In view of the above, crediting of pensions to such accounts opened in other banks in Sri Lanka will be stopped in the near future.

Elders' Board

Question: I got the order from the Elders' Board against the children. In the First two months they paid the payments. But now they are neglecting to pay the payments. Please let me know what I should do. I am poor I don't have money to pay for lawyers. Please help me?

Appuhami,

Kalutara

Answer: You can visit the Legal Aid Commission in your area will help you free of charge to enforce the maintenance order under Section 32 of the Elders Act No. 09, 2000.

Under the Elders' Act No. 09 of 2000 - Section 32 states that Maintenance orders made under this Act shall be deemed for the purpose of enforcement , to be orders made by a magistrate under the maintenance ordinance and may be enforced by the magistrate having jurisdiction over the place where the applicant for whose benefit the maintenance order is made resides in the same manner as maintenance order made under the ordinance .

Certified copy of marriage certificate?

Question: My brother got married in Kuwait in 2004. They have already informed the Sri Lankan Embassy in Kuwait. They have now lost their Marriage Certificate. How can they obtain a certified copy of their Marriage Certificate? Please advise through your Legal Aid Page.

G. Karunadasa

Maharagama

Answer: i. If they have already informed the Sri Lankan Embassy, that means their marriage is registered in Sri Lanka. If they want to get a certified copy of their Marriage Certificate, they have to get the application form from any Divisional Secretariat of the area.

Fees chargeable:

* If the Marriage Certificate number & the registered date is known Rs. 25.00.

* If the Marriage Certificate number is not known or the registered date.

For search of birth registers for a period of 03 months Rs.50.00.

For search of birth registers for a period of 02 years Rs.100.00.

Required fee should be affixed in the application form by stamps.

Duly filled application should be submitted to the Central Record Room.

Registrar General's Department Maligawatte, Colombo 10.

If you wish to obtain the Marriage Certificate by post, submit a stamped envelope with the application.

If the marriage is registered, the Marriage Certificate will be sent and if the marriage is not registered, a letter to the said effect will be sent to your address.