Law working for all

Does the law equitably work for everyone including the poor and vulnerable? The answer is a resounding NO. The Vast Majority of Sri Lankans feel justice is beyond their incomes. Their earnings are just sufficient to use a clich‚ eek out an existence. The formal justice systems are costly and not affordable. Lawyering in this country is fees based and the portals of justice could be opened only by lawyers.

The Judiciary is still independent and justice oriented. But judges cannot roam the streets or villages seeking acts of injustice to be rectified. They will adjudicate only on cases brought before them. The lawyers are the pricy intermediaries between injustice and justice. In ancient Sri Lanka, justice was reached by Mediation and Arbitration which are alternative to the formal court system were conduits of justice. The colonial rulers found the tradition (Niyaya) based systems inconvenient and non profitable.

They enacted laws and procedures and devised the court system to implement the laws and created the legal profession. The Right of legal representation was originally a noble profession. The lawyers were pleaders who pleaded the cause of the weak as a service. But all this is now nostalgic history.

The legal profession is still the bulwark between justice and injustice, between human rights and their violations, between discrimination of women by men, between the protection of children, people who are disabled, elderly persons, victims of war and other injustices. However, in practice this does not happen as lawyering has a price tag, which in effect is a price tag for justice. As Nobel Laureate Amartya Sen recently expounded in “Ideas of Justice”, this system needs to be changed.

Legal Aid is only a major component of the broader principle of legal empowerment of the poor.

Legal empowerment includes equality of opportunity in education, employment, business opportunity and general good governance.

Injustice linked to vulnerable groups has to be removed by social justice laws and programs. Sri Lanka has done well in respect of Social Justice Programs with regard to health, education and poverty alleviation. These programs have yielded results.

In narrowing the gender gap we are only second in Asia and sixteenth in the world. Developed countries like the U.S., Japan and Italy are way behind us in the World Economic Forums annual gender parity index.

For a country with a Per Capita income of just over US$ 2000, our life expectancy level of over 75 years and literacy level of over 92 percent are commendable. However, if there was access to justice index we would reach the only the minimal level.

The State allocates billions of rupees to Health, Education and Samurdhi programs. We have no grouse about that.

However, legal aid gets only a minuscule of Rs. 50 million a year. This is an improvement from 2005 when legal aid reached only Rs. 9 million.

Access to justice is still not regarded a important factor in this country. Annual allocation of Rs. 50 million works out for just over Rs. 2 per year for a citizen in this country.

Laws work more for the rich in many countries. Lawyering for Business is far more lucrative than attending to the legal empowerment needs of the poor.

The pricy lawyers are recognized better by both the State and the Courts. Legal Aid lawyers are poor mans lawyers and treated as such by persons wielding power.

However the judiciary is consistently sympathetic to the mission of Legal Aid as Legal Aid is an integral part of the justice system. The courts could rectify wrongs only if the issues are brought before them by effective legal aid lawyers and judgments are respected. There are lapses in this respect.

Sri Lanka’s 1978 Constitution unlike the Indian Constitution is not an ode to Social Justice. The right to receive legal aid is not recognized in our Constitution. This has to be amended as promised. If we fail in this respect, the majority of Sri Lankans will continue to be legally impoverished.

S.S.Wijeratne

Legal Aid Volunteer of the Year 2009

The Legal Aid Volunteer program successfully implemented by the LAC in 2009 with the support of UNDP, VSO and VOICE has posthumously selected volunteer Apsara Vithanage, a final year Law student as the Legal Aid Volunteer for the Year 2009.

Late Apsara Vithanage worked as a Legal Aid Volunteer in the Balapitiya Legal Aid Centre and LAC headquarters in Colombo specializing in elders and disabled persons legal empowerment programs. In Balapitiya, she organised an elders rights awareness program and visited elders homes to advice and encourage elders to live an active life.

She also helped many elders who were neglected by their children to provide sustenance for their aging parents as provided in the Protection of Elders Law No. 10 of 2000.

In Balapitiya late Apsara helped tsunami affected orphans and persons with disabilities to obtain legal protection.

After completing a monograph on elders protection, late Apsara Vithanage was preparing for her LLB finals when she suddenly departed from this world leaving her family and friends and the beneficiaries of her volunteering work.

The Legal Aid Volunteer of the year award will be received by her loving parents from LAC Chairman S. S. Wijeratne.

The Annual Volunteer of the Year Award will be named as ‘Apsara Award’.

Judicial Colloquium

Chief Justice Asoka N de Silva will be the Chief Guest at the Judicial Colloquium of High Court judges to be held in Colombo on February 6 and 7. 57 High Court judges exercising criminal, civil appellate and commercial jurisdiction are expected to participate.

The theme of the colloquium would be “Bail, alternative sentencing and the writ jurisdiction of the High Court”.

The colloquium is organized by the Legal Aid Commission and supported by Equal Access to Justice Program of the UNDP.

BASL Election

The following Nominations were received for the election of office- bearers for 2010 - 2011 for the Bar Association of Sri Lanka:

Post of President:

1. Palitha Mendis Kumarasinghe PC

2. Wekunagoda Gamage Neil Dias

3. Shibly Aziz, PC

4. Raja Rajeswaran Saravanamuttu Thangarajah

Post of Secretary:

Mahinda Bandula Kalehe Lokuge (uncontested)

Around 90,309 Attorneys-at-Law will be eligible to vote at the respective policy centres islandwide from 8 a.m. to 5 p.m. on February 24.

Development Legal Aid

Traditional court based legal aid programs still take priority. As equal access to justice is a fundamental right Sri Lanka has taken significant strides in this respect with 57 courts based legal aid centers islandwide. Improvement of outreach of traditional legal aid focusing on indigent Sri Lankans continues.

The Legal Aid Commission continues to promote Development Legal Aid Programs simultaneously with traditional aid programs are community oriented rather than individual case oriented. Legal issues relating to broader groups; women, migrant workers, consumers, children, elders, victims of crime, internally developed persons and victims of human rights. Violation comes within DLA programs, Legal Awareness of the poor and the wider target of legal empowerment of the poor to enhance social justice.

Following are the DLA desks at the LAC;-

01. Anti-Corruption Desk - Ms. Uthpala Adhikari, AAL & Harshani Balaharuwa, AAL.
02. Apprentice Training Program & Bench & Bar Desk - Ms. Damayanthi Dissanayake, AAL.
03. Child Rights’ Desk- Ms. Mahesha de Silva, AAL.
Ms. Harshani Balaharuwa AAL
04. Consumer Protection Desk - Ms. Lasanthi Palapathwala, AAL.
05. Disabled Persons Desk - Ms. Kalani A Medagoda, AAL.
06. Elders’ Right Desk - Ms. Piumi Kumari, AAL Ms.Harshani Balaharuwa AAL
07. Human Rights Bureau - Suntheralingam, AAL R. Navodayan, AAL
08. Internally Displaced Persons Desk - S. Suntheralingam, AAL.
09. Migrant Workers Desk - Ms. Lilanthi Kumari, AAL.
10. Prisons Desk - Ms.Thushari Sakuntala, AAL
11. Protection of Women’s Rights Desk - Ms. Chulari Hettiarachi, AAL.
12. School Program & Essay Competition - Mahesha De Silva AAL
14. Labour and Environment Protection Desk - S. Suntheralingam, AAL
15. Psycho- Legal Counselling Unit - Ms. Kaushalya Gunawardena

Disclaimer

The answers to questions are the legal views of individual lawyers and the Legal Aid Commission only compiles them for the Daily News Legal Aid Page.

Your questions should be addressed to: - Daily News Legal Aid Page, Chairman, Legal Aid Commission, No.129, Hulftsdorp Street, Colombo 12.

Email:[email protected]

Website: www.lawaid.org

Questions and Answers

Arresting suspect with offensive weapon

Question : When a suspect is arrested with an offensive weapon by the police what will be the necessary steps that they should take?

Answer : When the suspect is arrested by the police with an offensive weapon suspect should be produced before the magistrate within 24 hours and get him remanded, for the purpose of investigation. Thereafter the alleged offensive weapon should be sent to the government analyst Department for examination and report.

Nominating wife as a heir to my EPF account.

Question : I am working at a private firm and I have an EPF Account, I have nominated my parents, and I got married recently. Can I nominate my wife as a heir to my EPF Account?

Sarath Gamage - Naranmala

Answer : A nomination effected before marriage, is automatically cancelled with marriage.

Yes, you can nominate your wife after your marriage.

Nominating an heir to EPF account

Question : Can I nominate an heir to my EPF Account? If so please let me know what is the procedure.

Channa Peiries - Polgahawela

Answer : If a person want to nominate an heir to his EPF Account it could be done on the very occasion he should get register with the fund. A person has to fill in form - ‘H’ together with the A and B forms. He/she can nominate one heir or several. He/she must state on the form the share of the benefits each should receive. A married person may nominate members of his family including his spouse, children, parents, brothers/sisters. An unmarried person may nominate anyone.

It is also possible to cancel a previous nomination at any stage. Form- I should be used in such instances. When a re-nomination is needed, please He/she has to use Form -J and send it to the Labour Office of the area within which the place of work is situated.

When a minor is nominated, a guardian may be appointed. The guardian may be paid the benefits. When the minor attains majority, the guardian’s nomination is automatically voided.

When a Member dies without having made a nomination, the amount of his EPF benefits will be paid to the heirs ordered by a court under the inheritance of property Act.

According to your question your wife will be automatically entitled to your EPF benefits.

Withdrawal of EPF after marriage

Question : I am employed and have an EPF Account. I plan to get married soon and after getting married, thinking of leaving the job. Can I apply for my benefits what are the procedures please explain?

K. Mallika - Pinnawela

Answer : Women Employees who have left service in either of the following ways, are entitled to have their EPF benefits paid to them:-

1. If married within 3 months of leaving service, or

2. Have left service within 5 years of marriage.

Such women employees are entitled to have their benefits paid. In this instance form - K should be duly filled and submitted with the following documents:-

a) A photocopy of the marriage certificate certified as a true copy by the Registrar who registered the marriage.

b) Membership certificate ‘B’

Company matter

Question : I am working in a private company. According to my appointment letter, if I wish to resign from the job I have to tender my resignation giving three calendar months notice or by paying three months salary in lieu thereof. Once I gave my resignation to my boss and it was torn by him without passing to the board of directors.

Hence, if I want to resign suddenly, without giving three months notice or by paying three months salary can the employer take legal action to recover three months salary.

Thushara - Nugegoda

Answer : According to your letter you have once tendered your resignation and that has been torn by your Boss. What you should have done was that you should have immediately send your letter of resignation by registered post giving three months notice. Since there is no record of your resignation in terms of your contract you should give three months notice in writing. If you resign suddenly you have to pay three months salary to your employer. During this period you also have the right to set off the unveiled of annual leave and pay the balance. You cannot prevent the employer from taking legal action to recover this amount due as per the contract. In most cases due to cost of litigation the employer do not go for litigation. They will however with hold your balance salary.

Co owners property

Question : I am one of seven who inherited a commercial property in 1981 from our father. Since, the property has been lease out with no objections from all the co-owners and the income divided accordingly. Last year my sister filed a partition case, instigated by her husband who is her power of attorney, mainly because none of the shareholders were in agreement with him to develop the property. We are willing to settle out of court as 85% of the property is vacant, but the petitioner is not willing.

My sister(the petitioner) is not in agreement to us re-renting. Six of the seven co-owners are in agreement to renting as our only source of income has been from this property, for over 20 years. Can the Six co-owners lease it with a lease agreement?

Mrs Samarakkody - Colombo

Answer : Under the law of co-ownership each co owner is entitled to possession of the entire property. Therefore, the best way to settle this dispute is to file a partition action.

Since the partition action will be expensive and time consuming, you must explore the possibility of amicably settling this dispute. If parties are willing, you can consider going before the Mediation Board.

Deed of gift

Question : My son and daughter-in-law wanted to obtain a Bank loan and requested the transfer of my house and property jointly in their name. The money realized from the transaction was given to the daughter-in-law. Now She is insisting my son to write the will in her name instead of joint ownership. But I do not wish to part with my property in her name. Please advise whether I could cancel the transfer or alternate action in this regard?

J.Perera - Ratmalana

Answer : Under the law although a deed of gift can be revoked in certain situations, a deed of conveyance (deed of sale) can not be revoked unless there is any recognized ground for invalidating. The facts mentioned by you do not suggest any such invalidity. After you transfer the property you don’t have any ownership thereto, and your son and daughter-in-law have full ownership. If your son writes a lastwill in his wife’s name instead of joint ownership that is the matter that is not in your legal control.

However if further facts exist suggesting the transfer of the property involved a trust in your favour, in that event action may be filed on the basis of the trust. It is very important to note that such an action has to be filed within three years.

Child helpline

Question : Please let us know what is the purpose of having child helpline hotline Number and please give us some details.

G. Senewiratne

Imbulgoda

Answer : The Ministry of Child Development & Women’s Empowerment has established a “CHILD HELP LINE” with a toll-free four digit number - “1929”, on 29th January 2008.

The purpose of establishing this Child Help Line is to provide assistance for child related issues such as psychological and sexual abuses of children, school dropouts, child labour and other related problems. If you know any child abuse or child matters you can call the number 1929.

Public Well

Question : My wife has a plot of land given by her father who had the proper title by way of a partition case judgment. There is a well used by the public for a considerable period in this land. The well is marked in the plan connected with the judgment (not as a public well- co ownership of the well is not indicated any where).

My father-in-law says he has never given this small plot to the local government authorities but we understand it is listed as a public well in the local government authority of the area.

Now the people of the area are provided with pipe borne water and rarely does a person use this well. (Not used for couple of months.) No one is maintaining the well other than clearing the surrounding area on a few occasions by the users. Now the construction is partly damaged. As the well is situated in front of our house disturbing our privacy. We would like to close it if possible.

Please advise.

Sisira Munasinghe, Talawakelle.

Answer : Your question says that you understand that the well is listed as a public well in the local government authority of the area.

This is something you will have to first ascertain by the examination of public records. If it is in fact a public well you will not have any exclusive rights and therefore you cannot close it.

On the other hand if it is not being used now and if it is not used for ten years those persons who have had a right to use will lose such rights due to the non user, for over ten years in terms of the law of servitudes.

Division of property in Jaffna after marriage

Question : I intend to marry a girl from Jaffna. I want to know how the property will be divided after our marriage. Please advise.

P. Anthony - Jaffna

Answer : You are governed by the Thesawalamai law. Thesawalamai law is applied to Tamils in the Northern Province.

According to this law, property can be divided into three categories, such as inherited property of the man from his parents; inherited property of the wife from her parents and the acquired property of the man and wife during their lifetime together.

I) If the girl owns or if any property is given to her as Dowry or Gift those properties will be owned by her alone. Husband will not get any share from those properties even if she dies. Only the children born to her by that marriage will get those properties after her death. If your wife died intestate (without writing a will) and issueless (without children) the property owned by her alone (Dowry properties or properties owned before marriage) will go equally to her parents.

II) If any property purchased after marriage -

1/2 will go to the wife

1/2 will go to the husband

Selling of undivided property to a third party

Question : Can a Jaffna Tamil sell an undivided share belonging to him/her to a third party who is not a co-owner? I await your kind reply.

M.Jayasekara - Ratmalana

Answer : If he/she sells his/her undivided share to a third party, the other co-owner can deposit the amount of money declared in the deed or market value of the land in courts and he can ask the person who sells the undivided share to re-transfer the said undivided share to him/her under the pre-emption ordinance. Under the law of Thesawalamai, this action should be filed within one (1) year from the date of registration of the disputed deed.

Cheque returned due to lack of funds

Question : I have a business friend. He gave me Rs. 100.000 by cheque to be returned. This was part of the business agreement. When I deposited the cheque to the bank, the cheque got returned due to lack of funds in the bank. I phoned him several times but he refused to return the money back. Please let me know the relief I can seek through court of law.

M. Anwer - Ampara

Answer : You have to make a complaint to the police station. Each police station has a Fraud Bureau. Then they will investigate into the matter and file action in the Magistrate’s Court.