Freedom of , Information Laws

“Official information that enhances peoples capacity to exercise their rights belongs in the public domain” - UNDP

Following are the views expressed by Chief Justice Asoka N. de Silva in support of legislation to ensure freedom of information, at the launch of the “Justice” journal. The CJ said a lively debate is currently taking place in both legal and media circles, on the urgent need of a new Freedom of Information Act.

The Minister of Justice and Legal Reforms has promptly appointed an Expert Committee to make recommendation to be incorporated in the proposed legislation. Indications are that, consequent to a public discussion, a draft bill on freedom of information would be ready to be presented to parliament by the end of this year.

Why a Freedom of Information Act? Sri Lanka takes justifiable pride in her long history of democratic governance. Sri Lankans have exercised universal adult franchise since 1931 and is the oldest democracy in the developing world. Several governments have launched social justice legislation to provide equitable access to education, health, services and poverty alleviation.

During the past few, years the authorities have supported to have a successful access to justice program in Sri Lanka by providing legal aid services through the legal aid commission’s 57 centres islandwide.

However, legislation dealing with the freedom of information have not been introduced, esuring the transparency of the administrative actions, a hall mark of good governance. Despite independence from colonial rule 62 years ago, Sri Lanka continued with the official secrets ordinance and until recently penal provisions for criminal defamations in the Penal Code.

The introduction of Sri Lanka Press Council Law No 5 of 1973, 37 years ago amidst high controversy provided a forum to provide remedies to individuals when a newspaper publishes an untrue distorted or an improper statement and obtain a correction, apology or a reprimand. However, extremely retrogressive measures as far as media freedom and freedom of information are also contained in the Press Council Act.

Provisions were incorporated in the Press Council Law in respect of Criminal Defamation (Article 12), (repeated in 2003), cabinet discussions and matters falling with officials secret Act. Article 16(3). In 1973 the Opposition vehemently opposed the curbing of media freedom by the New Law but when returned to power in 1977 continued with the Press Council Law without abrogating or at least removing the draconian provisions. In 2003, appointments to the press council expired and for five years no new appointments were made due to public displeasure.

Unfortunately, in 2009, the press council was reactivated to the detriment of media freedom and freedom of information to the public in respect of administrative action.

Public Legal Awareness Unit.

Psyco - Legal Councelling Unit

The Legal Aid Commission in collaboration with National Centre for Victims of Crime (NCVC) have established a Psyco-Legal Counseling Unit at No. 211 Superior Courts Complex Hulftsdorp. During the course of 2009, the LAC centres islandwide in rendering free Legal advice to over 30,000 persons including victims of crimes, domestic violence victims, victims of Human Rights violations have recommended that Legal Advice alone was insufficient to address the complex psychological issues and legal advice should be accompanied with basic counseling techniques. The Legal Aid lawyers and supporting legal aid staff would be given periodic training in psychological counseling. The first training program for Colombo based LAC staff took place on January 11, 2010, with expert psychological counselors as resource persons.

The LAC/NCVC Psyco - Counseling unit will have the services of a full time Psychologist and would provide counseling for legal aid clients referred to the unit by the Legal Aid lawyers. In complicated areas, then P/LL unit will refer cases to expert clinical counselors and psychologists.

The Phyco-Legal Counseling Unit will be headed by Kaushalya Gunawardena who could be reached at Telephone No. 0113137153.

[New passports for children]

Question :

I have two children. My first child was born in France and my second child was born in Sri Lanka . I intend obtaining passports for my two children.

Kindly let me know the procedure to obtain the passport of my two children. Please advise me through your valuable Daily News Legal Aid Page.

G.A Jewantha , Dompe

Answer:

(i) If the child was born in Sri Lanka and was included in one parent’s Passport:

The copies of the ‘Detail Page’ and the ‘Children Page’ of the parent’s Passport in which the minor was earlier included.

A certified copy of the Birth Certificate of the minor.

The copies of the ‘Detail Page’ and the ‘Children Page’ of the other parent’s Passport.

Consent letter from both parents.

Confirmation on the receipt of the relevant fee by the Mission.

(ii) If the minor was born outside Sri Lanka and applies for a Passport for the first time: A certified copy of the original Birth Certificate issued by the Consular.

A certified copy of the citizenship certificate.

A certified copy of receipt of payment for citizenship registrations if the citizenship certificate is not available.

Consent letter from both parents.

The Application Form could be collected from the Department of Immigration & Emigration or from the Divisional Secretariat Office. Thereafter the duly filled Application Form along with the prescribed fee together with photographs of your children should be submitted to the Department of Immigration & Emigration or Divisional Secretariat’s Office. The Department also has a ‘One Day Service’.

Fees for obtaining Passports and travel documents are given below:- One Day Service

Normal Service

Diplomatic

Official

Ordinary

All Countries Rs.7500/=

Rs.2500/=

Middle East Rs.2500/=

Rs.1000/=

If you need further information, you can contact 011 5329000.

Questions and Answers

Forensic Psychiatry

Question: Please let me know what is Forensic Psychiatry and explain it’s criminal responsibility?

Subadra, Ampara

Answer: Forensic psychiatry deals with legal aspects of those who appear to suffer from mental illness . This interaction between psychiatry and the law is necessary for several reasons.

1. The mentally ill may commit an offence due to their mental illness.

2. Those who are not mentally ill may claim to be mentally ill after committing an offence.

3. The mentally ill may not consent to being treated and may pose a risk to their/others safety.

4. The mentally ill may not be able to manage their finance and other matters appropriately.

5. Persons may claim to be mentally ill after being the victim of an offence against them.

6. Persons claiming to be mentally ill may seek relief from their occupations genuinely or otherwise.

Criminal Responsibility

All persons are responsible for their actions and ignorance of the law is not a defence. However, Sections 75-78 of the penal code grants exemptions under certain circumstances:

Section 75 : child 8 years of age

Section 76 : child 8 years but 12 years of age, ‘who has not attained sufficient maturity to judge the consequences of his conduct.

Section 77 : ‘Nothing is an offence which is done by a person, who at the time of doings

it, by reason of unsoundness of mind, is

a) incapable of knowing the nature of the act, or

b) incapable of knowing that he is doing something contrary to the Law.

Section 78: intoxication, provided it is without his knowledge or against his will.

Role of expert witness

Question:

In cases of courts please explain the role of an expert witness in a court case.

Lasantha, Seeduwa

Answer: An expert witness is a witness who gives evidence by expressing an opinion based on his academic and professional expertise. The role of the expert is to provide rational and scientific evidence (facts)and interpretation of that evidence (opinions) so that a judge or jury could come to a decision regarding the matter at hand.

Roles of an expert witness

The many roles of an expert may include educating counsel, evaluating and assisting in the development of a case , providing written and oral statements in detail, testing or demonstrating evidence and obtaining the services of other experts if required.

The adversarial system requires ‘proof beyond reasonable doubt’. However, the evidence may only present a ‘balance of probabilities’.

Giving evidence in court

a) Pretrial preparation - would include reviewing the case notes, and reading relevant books, journals around the topic. Discussion with counsel before the trial and suggestion of strengths and limitations of available evidence is useful to enable the trial to focus on the relevant key areas.

Divorcing wife without knowing where she is

Question: I am seeking a divorce from my wife who has deserted me while I was working abroad in the year 2002. When I came on my annual vacation in 2003, I got to know that she has been carrying on an illegal recruitment agency with another party. My hard earn money had been swindled.

Later I left abroad to continue my job, after a couple of months I tried to contact home but of no avail. All my valuables were stolen by the people who were seeking employment abroad. Now I am left with nothing. I returned back to Sri Lanka in 2003 and left alone.

Now I am living with a new partner and intend to marry her. I need to know if its possible to get a divorce and how I could do it? I seen many lawyers and all say that they need to send the divorce papers to her address which I am not aware of, but know her mother’s address. Please help me to find a solution to get my life back on the road and lead a happy life. (Latest news is my daughter is married and living with her grandmother).

Thanking you in advance.

M. Ronaled , Ragagiriya

Answer: The Marriage Registration Ordinance and the Civil Procedure Code constitute the general law on divorce. Grounds for divorce under the Ordinance are the following:-

* Adultery;

* Malicious desertion; and

* Incurable impotence at the time of marriage

In order to file a divorce case, you have to find out the present address of your wife. Since you know your wife’s mother’s address, you can find the whereabouts of your wife and then proceed with the filing of the case.

If you need any assistance in the matter, please call over at our Head Office or any of our Centers islandwide who will give you the proper advice and guidance regarding your case.

Can ETF be withdrawn before reaching the age of 55?

Question: I am an Executive of a leading company in colombo. I am aware that I can claim EPF on reaching the age of 55. I am now 40 years old. I am told that ETF can be withdrawn before reaching the age of 55. Please advise me in this regard.

A.Silva , Kelaniya

Answer: ETF claim can be made as follows:

i. On termination of employment.

ii. An employee is not entitled to withdraw monies more than once in a period of five years.

iii. The five year rule does not apply when employment is terminated due to disablement arising out of an accident and also when a member is over 60 years of age.

iv. On the death of an employee the money will be paid to the nominee and if there is no nominee to the next of kin.

v. When proof is shown to state that he/she is leaving Sri Lanka with the intention of his/her returning to Sri Lanka or for permanent residence abroad.

vi. When an employee takes up pensionable employment in -

(a) Public Service.

(b) Local Government Service

(c) District Service.

Employment of female workers at night

Question: There are female workers working at night is it legal? Please illustrate.

K.W. Nihal - Ratmalana

Answer: According to Provisions of Section 2A of the Employment of Women, Young Persons and Children Act, certain conditions have to be fulfilled. As female workers are employed one whole week in the day shift and another one whole week in the night shift, it was revealed that female employees are employed in the night work at least 2 weeks in the month.

Therefore it is observed that a female worker is employed in excess of 10 days in a month. Further, no written consent of the female workers have been obtained, and no prior sanction has been granted by the Commissioner of Labour to employ female workers in the night. The services of a warden, provision of refreshments and availability of rest rooms have not been adhered to.

Under the above circumstances, there is no legal coverage for the employment of female workers in the night as it has violated some conditions which should have been fulfilled.

Further under Employment of Women, Young Persons and Children Act, any person under 18 years of age is considered a “young person” and the employment of a young person in the night is prohibited. Thus the employment of female workers under 18 years of age is illegal.

Air Force pension query

Question: My son married in 1995 when he was attached to the Sri Lanka Air Force. He died in 1996 while in action. At the time of his death his baby was just 9months old. His wife was named as his next kin.

His wife got married in year 2001 and she has migrated to Australia in 2006 for permanent residency with the child and her husband.

She has been drawing my late son’s pension as wife of my late son to-date. Please clarify the legal position following:

1) Can she draw my late son’s pension being remarried? 2) Is it legal for her to carry my son’s surname being remarried? 3) Is she entitle for the benefits by the Air Force after remarried?

P.N.Balasuriya - Makola

Answer: Under the Pension Minutes and Circulars, the next of kin is the legal spouse and children.

1. She cannot draw your late son’s pension after remarriage. But under the Pension Minutes & Circulars there is provision to get the minor’s pension. If she is the legal guardian of the child, she can get the minior’s pension. If you know further details regarding the pension you can make a complaint to the Pension’s Department situated at Maligawatte. Tel No.2320435 or 2431647.

2. Can. Anyone can use any name and you cannot challenge it.

3. According to Air Force procedure remarried widows are not entitled for benefits. For any assistance in this regard, please call the Air Force Headquarters. Tel No.2320439.

Incidents of bribery and corruption in Government sector

Question: Society is full of corruption. We observe that most of the people are used to this method to get their work done in the Government Sectors. I have come across so many incidents .

Please let me know the Authorities to bring such kind of bribery and corruption activities?

Medical Student

Matara

Answer: Under the Bribery Act No 11 of 1954 and its amendments No 19 of 1994 it is an offence for Government Servants to take bribe to fulfill the needs of other people. Such persons can be convicted under this Act. If you wish to inform such kind of activities, please report same to the following address:-

1. The Chairman,

The Commission to Investigate Allegations of Bribery or Corruption

No 36, Malalasekara Mawatha

Colombo 07

Tel Nos. 011 2586841, 011 2596362, 011 2584872

Hot Line No. 011 2586257

Fax No 011 2596014, 011 2595045

Email - sccy @sltnet.lk

You can report the matter by giving your name or it can be reported confidentially. The Legal Aid Commission has also set up an Anti- Bribery & Corruption Unit where you can report such matters. Please send your information to the Legal Aid Commission, No 129, High Court Complex Colombo 12, and Tel No. 011 5646550.

Pensioner should do before going abroad

Question: I am a pensioner. I have decided to go abroad for my betterment . What procedures should I follow before my departure.

P. Gunasena , Panadura

Answer: First you have to decide whether you wish to get your pension in Sri Lanka or abroad. If you wish your pension to be remitted in your account while you are abroad, you have to inform the relevant Divisional Secretary and the Foreign Pension Division.

Then they will issue you with Pension 1 Form ( Life Certificate). You have to take sufficient photocopies of the said Form and take them with you when you are going abroad. You have to fill this form and get it attested by an authorized person mentioned in the form and send it to the Bank before the date of your pension in Sri Lanka. Then on the instructions of the Pension Department, the Bank will remit your pension in your account and any day you come to Sri Lanka, you can withdraw your pension from the Bank.

If you wish to get your pension abroad, you have to fulfill the following requirements:-

(a) you should have permanent residency/citizenship

(b) approval of the High Commissioner

(c) approval from the Pension Department in Sri Lanka.

If you need further information in this regard, you can contact the Accounts Section, Foreign Division, Pensions Department, Maligawatte, Colombo 10. Tel.No.2320439.

List of witnesses and documents

Question: Please let me know the importance of having a list of witnesses and documents in court litigation? I await your kind reply through your valuable Legal Aid Page.

P.Indramalee,

Koswatte.

Answer: The list of witnesses and documents is an important part in civil litigation.

The list will indicate the name of the witnesses to be called by each party and the documents that each party wishes to tender in evidence.

Under the Civil Procedure Code Section 121, it is an obligation on every registered attorney to file the list of witnesses and documents at least 15 days before the date of the trial.

Under Section 175 of the Civil Procedure Code “ No witness shall be called on behalf of any party unless such witness shall have been included in the list of witnesses previously filed in court by such party as provided by Section 121”.

If the name of the witness is not mentioned in the list his evidence cannot be led without permission of the court.

It is similar in the case of documents that are not mentioned in the list of documents .

Company information

Question: Can a Director of a Company who has information in his capacity as a Director or employee disclose such information to any person or make use or act on the said information? Could you please clarify?

Shanil Fernandez, Boralesgamuwa,

Answer: (1) A Director of a Company who has information in his capacity as a Director or employee of the Company which would not otherwise be available to him, shall not disclose that information to any person or make use of or act on the information, except -

(a) for the purposes of the Company;

(b) as required by law;

(c) in accordance with subsection (2); or

(d) in any other circumstances in which the Company’s articles authorize the Director to do so.

(2) A Director of a Company may disclose, make use of or act on information, if-

(a) the Director is first authorized to do so by the Board under subsection (3); and

(b) particulars of the authorization are entered in the interests register.

(3) The Board authorizes a Director to disclose, make use of or act on information, if it is satisfied that to do so will not be likely to prejudice the Company.