Rule of Law

The Rule of Law is considered one of the eight characteristics of good governance. The other essential ingredients being accountability, transparency, equitable inclusiveness, participatory and responsive to public, consensus oriented effectiveness (Escap).

The Rule of Law requires equal access to an independent judiciary which is the main mission of the Legal Aid Commission. Due to economic and legal awareness deficit, a vast majority of the population is deprived of equal access to judicial institutions even though equal protection of law is a Constitutional aphorism.

In respecting the cardinal principle of rule of law, respecting the basic law - i.e., The Constitution comes as the core foundation on which derivative legislation should confirm. It is evident that ethics of justice in a Constitutional Society derives inspection from the basic law which in most instances calls for special procedure to amend, add or abrogate. For example, the 1978 Sri Lankan Constitution enacted with the 4/5th majority in Parliament stipulates that it could be amended only with a two thirds majority in Parliament and the fundamental provisions only with the approval of a General Referendum.

This frigidity imposed by the proportional electoral system which makes it difficult for one palatial party to attain a two thirds majority has resulted in Constitutional violations rather than amendments. The fate of 13th and 17th Amendments may have to be viewed in the above context.

In a background of non-compliance with Constitutional provisions, the rule of law is challenged at the apex Constitutional level consequently. The non-compliance with non-apex legislation becomes normal and the rule of law becomes mere rhetoric. The law enforcement agencies become discriminatory and politicized. Hence, it is necessary for equal access to justice exponents to continually stress the importance of rule of law.

Rule of Law is the highest legal principle of general application; the corner stone of the modern democratic state. The principle, simply explained means that "decisions should be made by the application of known principles or laws without the intervention of discretion in their applications." In other words the law should be supreme and should be the exclusive basis of equitable governance of the affairs of men and society.

Rule of Law or Supremacy of Law need to be understood in contradistinction to the rule of man or God. Historically kings and tyrants sought legitimacy from divine rights to make laws according to individual whims, fancies and idiosyncrasies.

Rule of Law or Supremacy of Law is operative both nationally and internationally. The principles of international law, which govern the conduct of inter-state relations, are founded on established conventions and multilateral agreements. The United Nations Organization and its specialized agencies are the primary source of modern international law.

In the municipal law, Rule of law entails number of prerequisites. They are: -

(1) Separation of Powers,

(2) Independent Judiciary,

(3) Independent and effective law enforcement authority.

In a modern democratic state such as Sri Lanka, the law making powers are entrusted to a body of elected representatives - the Parliament. The executive power is vested in an elected Executive President who paradoxically is constitutionally above the law and heads her/his Cabinet of Ministers.

The laws enacted by Parliament and relating interpretations to such laws by the judiciary need to be respected and enforced. This is the responsibility of the law enforcement authorities who like the judges should be neutral and independent to evoke the maximum confidence in society.

The Rule of Law is currently understood as a western legal principle of universal application. However, in ancient South Asian culture the Rule of Law prevailed in a more refined and a humanitarian manner. The supremacy of Dharma or just righteous law was the basis of governance and dispensation of justice in ancient India and Sri Lanka.

The Dharma envisions the full spectrum of universal Human Rights and values. In fact, according to early chronicles a cow filed the first fundamental Rights case in Sri Lanka during the time of King Elara.

The cow sought equality of justice against the Prince whose chariot ran over her calf. This fable is an illustration of how Rule of law was deeply ingrained in Sri Lankan society even prior to the beginning of the Christian era.

Public Legal Awareness Unit.

Experience of elders' should be utilized -LAC Chairman

Addressing a People's Bank sponsored Elders' District Conference at the Trincomalee Town Hall, Member of National Council of Elders and LAC Chairman S.S.Wijeratne said that "as senior citizens, one of few powers left in elders' hands is the right to vote which should be carefully exercised to protect elder's rights and enhance their dignity.

It is the duty of candidates seeking the elders vote to come with effective programs to benefit an estimated 2.3 million elder voters which is over one fifth of the electorate. Elders who are completing their life's contribution to the country should not be discarded as unimportant and more measures like a Universal honorarium system like in Nepal should be inaugurated, so that the golden years of the elders' cohort are spent in dignity and not as social relics. New Sri Lanka could be a model to the rest of the world in utilizing the elders experience and wisdom in building the future of the country".

Justice Hector S Yapa thanked the People's Bank for supporting the LAC's Children and Elders Awareness Programs as thrift and savings habits cultivated when one is young could preserve the dignity when one is old.

The LAC, Director-General also cautioned elders when dealing with property issues and advised them that they should obtain free legal advice of Legal Aid lawyers as many elders have been rendered destitute by unwise outright gifting of property without keeping life interest.

LAC Consultant S.Suntheralingam, AAL said as an elder his advice to fellow senior citizens is to continue to remain active both physically and mentally and aspire to join the Senior Elders Group in Sri Lanka who are 80 years of age an estimated at 500,000 persons. Participating in activities organized by 10,000 Elders Village Committees such as learning new skills and going on excursions and pilgrimages without fear for security should be encouraged.

Questions and Answers

Publishing name in relation to sexual harassment?

Question: Please let me know if it is an offence to publish the name or any matter which may make know the identity of any person in relation to rape or sexual harassment cases?

P. Kavinda, Panadura.

Answer: Yes under the Penal Code it is an offence to publish any matters relating to sexual harassment (sec 345 ), procuration (360A) sexual exploitation on children (360B), rape (363), Incest (364A), unnatural offences (365A) and grave sexual abuse (365B).

Under the Penal Code Section 365 states that whoever prints or publishes, the name or any other matter which may make know the identity of any person against whom an offence under section 345 or Section 360 A or section 360 B or Section 363 or Section 364A or section 365 or Section 365A or Section 365 B is alleged or found to have been committed (hereinafter in this section referred to as "the victim) shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.

(2) Nothing in subsection (1) shall apply to the printing or publication of the name, or any matter which may make known the identity, of the victim, if such printing or publication is

(a) by or under the order of the officer-in-charge of the police station or the police officer, making investigation into such offence, acting in good faith for the purpose of such investigation or (b) by or with the authorization in writing of the victim; or

(c) by or with the authorization in writing of the next of kin of the victim where the victim is dead or parent or the guardian of the victim, where the victim is a minor or is of unsound mind;

Provided no such authorization shall be given by such next of kin to any person other than to the Chairman, Secretary or Manager, how to ever described, of any welfare institution or organization recognized by the State.

(3) Whoever prints or publishes any matter relation to any proceedings in any court with respect to an offence referred to in subsection(1), without the previous permission of such court, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. But the printing of a judgment of the Court of Appeal of the Supreme Court does not amount to an offence within the meaning of this section.

Amending Birth Certificate

Question: I know of a family. They have a child. In the child's Birth Certificate it has been mentioned that his parents are not married. The parents got married only after the birth of the child. Now they want to amend the child's Birth Certificate. Can they do that? The parents are worried because the child will have to face a lot of difficulties in the future. Please advise us.

S.W. Premaratne, Seeduwa.

Answer: They can amend the child's Birth Certificate. The particulars of the father may have not been stated in the Birth Certificate of the child, if the child was born before the marriage of the parents. Nevertheless, if the parents had been married after the child was born, particulars of the father may be entered in the Birth Certificate of the child.

One of the following persons should make an application to the Divisional Secretariat to which the place of registration of birth belongs to, for insertion or alteration of particulars of father of a birth certificate.

a. One of the parents.

b. Lawful guardian, if parents are not living.

c. If the owner of the birth certificate is over 18 years of age, that person himself/herself.

A certified copy of the Birth Certificate should essentially be attached to the declaration and the following documents should be produced in addition.

a. Marriage Certificate of parents.

b. Important documents to substantiate the particulars of father.

c. Other documents in proof of that the child related to the Birth Certificate belonged to the parents concerned.

Relevant declaration form is Registration B 372

Probable age certificate

Question: Is it legal a requirement to prepare a probable age certificate to children who are in the Children's Home? We know some times when they reach the age of 18, they have to leave the Children's Home without having any thing. Please advice us.

P. Marasinghe, Kandy.

Answer: Yes. Under the Birth and Registration Ordinance and Circulars issued by the Registrar General's Department the Children's Home can take initiate actions to prepare probable age certificate to children who don't have Birth Certificates.

The ICCPR Act No. 56 of 2007 - Section 5 states -

"Every child has the right to have his or her birth registered and to have a name for his or her date of birth".

Therefore, if the Children's Home has neglected their duty, the child can seek relief under this Act. The procedure is as follows:- Certificates of probable age are issued to children under 14 years of age whose birth cannot be registered.

1. Certificates of probable age are issued to -

i. Resident children of a Children's Home approved by the government.

ii. Children who are under the guardianship of persons other than children's homes approved by the government.

2. Documents to be submitted by the resident children of a children's home approved by the government.

i. Affidavit of the Matron of the Children's Home.

ii. Medical certificate issued by a government medical officer determining the age of the child.

iii. Other documents containing information of the child (if any)

3. Documents to be submitted by the children other than residents of a Children's Home approved by the government together with the declaration;

i. Affidavit of the guardian

ii. Documents in proof of the guardianship of the guardians regarding the child concerned.

* Grama Niladhari Certificate or

* Certificate of the probation and Childcare Service Officer

* Certificate from the Social Services Department

* Certificate issued by the Inspector of Police

iii. Medical Certificate issued by a government medical officer determining the age of the child.

iv. Health Development Record

v. Copy of the school admission register if the child attends school. After preparing the above mentioned documents, the Head of the Children's Home has to contact the Additional District Registrar of the Divisional Secretariat of the area. If you need further help you can contact the Legal Aid Commission Center closer to your area.

Gifting of property

Question: I married a girl without the parents' approval. My father told me that he is not giving any property to me. He has so many properties under his name. He told me that he has decided to give all the properties to my sister. Can he do so? He has two children - i.e. myself and my sister?

S. Peiris, Godagama.

Answer: If a person acquires any property, he can write it (Property) to anyone that he wishes. He can sell or gift it to someone who is not related to the family. But if he is leaving the property under his name and dies without writing a Last Will, then the legal heirs can have the right to claim that property under the Common Law.

If the deceased was married 1/2 of the property would be granted to the spouse and the other half to be equally divided among his children. If they have no children, half to the spouse and the other half to the parents of the deceased in equal shares. If the parents are not alive equal shares to the deceased's brothers and sisters. If only one parent is living 1/2 of 1/2 would be granted to the brothers and sisters of the deceased equally.

If the deceased is a divorcee 1/2 goes to the children. If the children are alive, the balance goes to the parents equally or if one parent is alive 1/2 of 1/2 goes to the living parents and the balance goes to the brothers and sisters equally.

According to your question, your father can write his property to anyone he wishes.

Death certificate

Question: My mother-in- law died in a private hospital in Colombo. Please let me know in the event of death occurring in a private hospital in Colombo, how can we get her Death Certificate? We are living in Kurunegala.

P. Chamali, Kurunegala.

Answer: The death is registered by the Registrar of Births and Deaths of the area where the death occurred. If the death has occurred at a private hospital, in Colombo you have to inform the Registrar of that area for registration of such death.

Appropriate persons for informing of a death for registration,

i. Person present at the time of occurrence of the death

ii. Person who is treating at the time of occurrence of the death

iii. Medical Officer of the hospital Obtain the relevant declaration from the Registrar of births and deaths for informing the death.

Documents to be submitted

i. Duly perfected declaration

ii. Hospital report issued in proof of the occurance of the death A death can be registered free of charge within a period of 03 months. A copy of the death certificate is issued to the informant free of charge.

Company records

Question: We have a company of our family name under the new Company Act No. 7 of 2007 and want to know what kind of procedure that we have to apply with regard to company records. What do they mean by company records?

Dolakubura, Nawinna.

Answer: Under the Company Act No. 07 of 2007 a company must keep its records at registered office. Company records include the certificate of incorporation, the articles, minutes of meetings.

Resolution of shareholders, directors committee held or passed within the previous ten years, interest register certificates given by the directors in terms of the requirement of the act within past ten years.

The registrar of the directors.

Copies of written communication to shareholders during the previous ten years, including annual reports copies of the all financial statements for the last ten completed accounting periods.

Copies of all instrument creating or evidencing charges and the registrar of the charges and the share register and accounting records required by the section 148 of the act for the current accounting period and the last ten accounting periods of the company.

The 10 year requirement for the maintenance of records may be reduced by the registrar where he considers it necessary and appropriate.

You must be given notice to the registrar if these records are to be kept in any place other than the registered office. further the accounting records may be kept in place other than the registered office provided that the formalities of section 149 of the act are comply with.

All company records must be kept in written form or in a manner that can be easily accessed and converted in to written form. It is also necessary that that the company should take measures to prevent falsification and direct falsification of records.

Child abuse

Question: There are numerous number of child abuse and rape cases reported in the country. If we know that kind of abuse that has occured, is there any procedure to follow. Please let us know.

Anurada, Panadura.

Answer: The complainer can inform about the case by a phone call, letter or visit to Women and Child Bureau in the Police Headquarters or the respective police stations. There are 36 police divisional offices handled by the Women and Child Bureau of Police headquarters. In all the 36 Police Divisional Offices there are OIC (Officer In-charge), WSI (Women Sub-Inspector) or the officers higher than these positions.

You can complain about the following types of cases:

Types of cases -

1. Cruelty to children

2. Causing hurt

3. Causing grievous hurt.

4. Voluntarily causing hurt by dangerous weapons or means.

5. Voluntarily causing grievous hurt by dangerous weapons or mean.

6. Employment of children.

7. Trafficking of children.

8. Sexual Abuse

a. Rape

b. Seduction, Prostitution or unlawful carnal intercourse of a female child.

c. Grave sexual abuse

d. Incest

9. Offence of gross indecency and punishment.

10. Unnatural acts of punishment.

11. Kidnap and abduction of children

12. Procuration (engaging children in prostitution)

13. Hiring or Employing procurers.

14. Obscene publication and exhibition relating to children.

15. Developing obscene publications

16. Indulging in homosexual activity with males.

The procedure in relation to this kind of cases:

If it's a rape case the complainer should complain as soon as possible. its towards complainers benefit.

Police takes down complain from the victim.

If the victim is injured he/she is first taken to the hospital by the Police Officer.

The JMO (Judicial Medical Officer) of the relevant hospital has to check the victim.

If it's a child abuse case the JMO and police must fill the Medico-

Legal Examination Form given by women and child division of police headquarters.

An OIC or ASP or the officer who gets the permission must handle these cases.

The Police Division has to collect evidence in order to take action on the victims case. Evidence collection includes medical tests, fingerprints, DNA tests, Search by police dogs are performed.

The suspect is arrested by the relevant Police Officers.

Usually within 24 hours the suspect should forward to court, in a child abuse case.

The Legal Aid Commission islandwide will appear on behalf of the aggrieved person free of charge.

International Day of Persons with Disabilities

Question: We know that December 3 was the International Day of Persons with Disabilities. Please let me know the rights recognized under Sri Lankan Law in relation to person with disabilities . I await your kind reply.

Chamudini Ramal, Mawanella.

Answer: The United Nations and the global community has declared the December 3 as the International Day of Persons with Disabilities. The theme for this year is: Empowerment of persons with disabilities and their communities around the world". The rights recognized in the Sri Lanka in relating to person with disabilities.

1. The Constitution

Article 12 (1) and 12(4) of the Constitution of Sri Lanka states that "All persons are equal before the law and are entitled to the equal protection of the law". All human beings are born free, equal in dignity and rights. Under this constitution the government can enact the laws to consider persons with disabilities.

Further the Chapter VI describes the Directive Principles of State Policy and Fundamental Duties.

2. Right of Persons with Disabilities - Act No. 28 of 1996

This act led to the establishment of the National Council and the National Secretariat for Persons with Disabilities. The importance of this act is that one can tender a petition to the High Court. This act empowers the registration of the related NGO (Non Governmental Organizations).

Public Administration Circular in 1998

A 3% of vacancies in public services and public companies should be filled by Persons with Disabilities possessing requisite qualifications and whose disabilities would not be a hindrance to the performance of duties.

Trust Fund Act of 1992 for the Rehabilitation of the Visually Handicapped

This provides for education and training opportunities, financial assistance, housing provision and welfare schemes and marketing of products made by people with visual impairments.

Social Security Board Act - Act No. 17 of 1996

This Act insures the welfare of Persons with disabilities and provides various facilities including a Pension scheme.

ICCPR Act No. 56 of 2007

Under this Act, legal action could be taken in the High Court against those public servants; who fail to perform their duties. This includes the persons with disabilities and their specific rights. Further this act protects the rights of disabled children.

Domestic Violence Act - Act No. 34 of 2005

This Act provides legal protection for disables within the family. The legal action can be instituted by a victim or a family member or by a third party (not related to the victim) on behalf of the victim in the magistrate court.

Elders Law Act - Act No. 9 of 2000

Parents can claim the maintenance from their children. The prevalence of blindness, Deafness substantially created in the aging population.

Civil Procedure Code in Sri Lanka

This civil procedure provides of the appointment of the person who shall be guardian or curator of persons with disability especially for children who are mentally challenged people.

Draft 'Disability Rights Bill'

This is in the process of implementation. This was drafted according to the international convention of the rights of person with disability. This has recognized the areas such as right to life, education and health which are inconsistent with the Constitution.