Legal aid commission

Questions and Answers

Vision of justice beyond 2010

In 2001, I read a presentation titled ‘Vision 2010’ on the management of budget and economy by Dr P.B. Jayasundera, arguably the most influential economic architect of the last decade. I came across the presentation recently and was impressed how the vision 2010 predicted that Sri Lanka will have a vibrant democracy based on social equality. No one can doubt about our current vibrant democracy, but the Vision of social equality is yet to be achieved.

Important steps relating to economic empowerment of the poor have been put in place. But legal empowerment of the poor still needs more attention from the national policy makers. Economic empowerment need to be combined with legal empowerment for a just and equitable Sri Lanka.

Three areas of Law and justice that need urgent attention in 2010. They are;

(1) Freedom of information laws

(2) Protection of victims of crime and witnesses

(3) Legislation ensuring equal opportunity in education and employment.

These areas of legislation need urgent attention of the newly elected Executive President and soon to be elected new Parliament. Law makers have already commenced the initial steps in respect of all these legislations but as priority was given to the eradication of terrorism from our land, the agenda of social equity legislation was relegated to the background. Time has now come to revive the national discussion and fast forward the legislation efforts.

Freedom of information

Freedom of information legislation is long overdue to ensure transparency of administrative action and ensure continuing participation of the citizens in public affairs. As a democratic right, freedom of information is only second to the right to vote and both Indian and our Supreme Courts have held that it is an integral part of the freedom of speech, expression and publication guaranteed in article 14 (1) (a) of our Constitution (Galle Face Green case). Judicial guarantee of right to information about public action does not benefit all Sri Lankans as all cannot afford to seek intervention of the Supreme Court when needing to exercise these basic rights. There should be clear machinery established like in India to assist all citizens facing discriminations.

The Law Commission of Sri Lanka, the authority vested with responsibility to propose new legislation presented a draft Freedom Of Information Act (FOIA) as far back as April 2006. Chief Justice Asoka De Silva as well as the Justice and Legal Reforms Minister have clearly expressed the need for FOIA. A coalition for FOIA’ comprising of professionals dedicated to create a national awareness on the need to enact freedom of information legislation has also been formed.

Victims and Witness Protection

The second area in which legislative action is long overdue is the enacting the draft bill that was pending before the last Parliament titled ‘Assistance and Protection to the Victims of Crime and Witnesses Act’. In the prevailing Criminal Law system, the victims of a crime and witnesses to crime have no legal protection.

Following many countries in Asia and on the basis of recommendation of the Law Commission of Sri Lanka, the President himself steered the draft law through Cabinet and was approved by the Supreme Court and presented to Parliament in 2008.

The victims’ law should have received unanimous support but controversy on procedures delayed the final enactment of the Law. The National Centre for Victims of Crime (NCVC) and the Legal Aid Commission (LAC) jointly provide legal representation to victims in courts on an ad hoc basis but the pending Law need to be enacted in the new Parliament without undue delay.

Equal Opportunity Legislation

Finally, urgent need for equality of opportunity legislation to build a just and equitable Sri Lanka had been initiated a few years ago. Despite great strides in narrowing the gender parity gap and remarkable progress in life expectancy, literacy and information, opportunities for equality in education and high income employment in this country remain lop sided.

The major portion of our national income comes from remittances by housemaids and underpaid sweat girls in garment factories. Modern education is afforded only by the rich in international schools and universities abroad.

There is no equal opportunity for our youth if they are not born to affluent families mostly in the Western province. There are still no equal opportunities to the vast majority of our youth.

This disparity needs to be corrected by equal opportunity legislation. The talented should be entitled to reach the highest economic ladder by sheer application and hard work. Quality education and empowerment should be available for the talented without discrimination. The only barrier between success and failure should be limited to hard work.

Some years ago, then Justice Minister Professor GL Peiris presented an Equal Opportunity Bill in Parliament.

- S S Wijeratne

International Women’s Day

International Women’s Day which commenced due to the efforts of Clara Zetkin on 1911 is celebrated by women around the world.

UN declared March 8 each year as the International Women’s Day in 1975. A number of countries ie: China, Russia, Macedonia, Vietnam has declared the International Women’s Day as a National Holiday.

International Women’s Day have been celebrated by the Legal Aid Commission during the past few years.

This year Legal Aid Commission celebrations will be held on March 8 at Samudradevi Balika Vidyalaya, Nugegoda with participation of several girls schools in Nugegoda.

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;-

1. Anti-Corruption Desk - Ms. Uthpala Adhikari, AAL & Harshani Balaharuwa, AAL.

2. Apprentice Training Program & Bench & Bar Desk - Ms. Damayanthi Dissanayake, AAL.

3. Child Rights’ Desk- Ms. Mahesha de Silva, AAL.

Ms. Harshani Balaharuwa AAL

4. Consumer Protection Desk - Ms. Lasanthi Palapathwala, AAL.

5. Disabled Persons Desk - Ms. Kalani A Medagoda, AAL.

6. Elders’ Right Desk- Ms. Piumi Kumari, AAL Ms.Harshani Balaharuwa AAL

7. Human Rights Bureau - Suntheralingam, AAL R. Navodayan, AAL

8. Internally Displaced Persons Desk - S. Suntheralingam, AAL.

9. 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

Last will

Question: Please let me know through your page, the position regarding a bachelor who leaves a last will, in proving the will.

1. Have you got to include the names of all his brothers and sisters as beneficiaries?

2. Since in the Last Will specific persons have been mentioned as beneficiaries. Whether it would suffice to include, only those names as beneficiaries.

S.M. de Silva

Kamburugarmuwa

Answer: Yes, you have to mention only those person whose names are mentioned as beneficiaries of the Last Will.

Maternity leave

Question: My wife a clerk in a company in Kalutara. On the expiry of maternity leave, she reported for work on 12.01.2010. She has been told that her services are not required as she had taken maternity leave this year and last year. Is the action taken by the company valid in law?

Champa Kodikara

Matugama

Answer: The Company cannot terminate the services of your wife on grounds of having availed of maternity leave. She is free to take maternity leave as provided according to Law. She may complain to the Labour Commissioner and also file action in the Labour Tribunal for unjust termination of employment. Action will have to be filed in Labour Tribunal within six months of termination of employment.

How to get copy of Marriage Certificate

Question: My husband and I were living in Italy. My husband came to Sri Lanka last year and he never come back. He took all our Original Documents with him including Marriage Certificate, Birth Certificates of children. Now he is trying to file a Divorce Case. I want to get a copy of my Marriage Certificate.

Please let me know as a wife can I apply for a certified copy of the Marriage Certificate? Could you kindly let me know the correct procedure?

Meekubura

Mahara

Answer: As a wife you can apply for a certified copy of the Marriage Certificate. If you know the date and the year of marriage, you could visit the Divisional Secretariat’s Office, where you got married (Births/Deaths and Marriage Registrar) and obtain Form 121. In your case you have to go to the Divisional Secretariat’s Office where you got married. The duly completed Form 121 should be submitted together with uncancelled stamps in payment of charges. If stamps are sent by post, it is advisable to send them under registered cover. All applications should be accompanied by a self addressed envelope.

If the certificate is required to be sent under registered post, the required registration duty should be affixed to the cover.

The certificate will be issued in the language it had been registered. If a translation is desired, a separate application in the relevant form must be made to the appropriate District Registrar or the Registrar-General’s Office, Denzil Kobbekaduwa Mawatha, Battaramulla. The relevant stamp fees are given below:

Where the date of registration or the number of the entry is given the stamp fee for one copy of the certificate is Rs. 25.

Where the date of registration or the number of the entry is not given and a search of Registers not exceeding three months is involved fee for one copy of the certificate is Rs. 50. Search of registers only for a period not exceeding two years the stamp fee is Rs. 100. (No application for search shall exceed a period of two years).

Please do not pay any other fee other than stamp fees mentioned herein.

EPF matter

Question: I am the sole proprietor of a Grocery Business in Horana since 1998. There are 10 employees in my shop out of which four employees are casual. I have not contributed to EPF. The Labour Officer came to my shop and took down the names of the ten employees and wanted me to contribute to EPF. What shall I do to contribute EPF? Should I contribute to casual employees also?

Jayatunga

Horana

Answer: You have to obtain the Form ‘D’ from the Labour Department, fill it and get a registration No. Thereafter you will have to pay EPF to all ten employees from the date of commencement of employment. The rate of contribution is 8 percent by workman and 12 percent by employer. Surcharge will have to be paid for delayed payment. The law of prescription does not apply to EPF.

Gratuity

Question: I was working in a Company in Panadura for 30 years. I tendered my resignation on 10.01.2010. I asked for gratuity and the company is refusing to pay. I applied to Labour Tribunal which has dismissed my application stating that I am not entitled to gratuity as I have resigned. Please advise.

Perera

Panadura

Answer: You have not stated as to how many employees are working in your Company. In case there are 15 or more, you are entitled to gratuity at the rate of 1/2 a month’s salary for each completed year of service. You can complain to Labour Commissioner for recovery of gratuity which is payable even if you have resigned. In case the number of employees is less than 15, Labour Tribunal will have to entertain your application. You can file a case in revision in High Court on the Labour Tribunal order.

English translation of Birth Certificate?

Question: My brother wants to go to France. He met a person who adviced him to pay Rs 1,500 to get the English translation of his birth and marriage certificate. Is it reasonable price to get the copy of the English translation. If not kindly let me know to whom should he go to get this done?

Weeramuni Dayarathne

Kochchikade

Answer: There are so many Sworn Translators in the island who will quote various rates. But it is always advisable to get it done through the Registrar-General’s office. No need to pay such amount of money. You can obtain a copy of an English translation of your Birth Certificate/Death/Marriage Certificates through the Registrar-General’s Department at Denzil Kobbekaduwa Mawatha, Battaramulla. Separate application should be made in respect of each kind of Certificates (Marriage, Birth and Death Certificates). The application form should be filled by you on your own with a copy of your original Birth Certificate attached thereto. The charge for one translated copy of a Birth, Death or Marriage Certificate is Rs. 100. Any number of copies can be applied in one application. The application should be sent to the Registrar- General’s Department or any District-Registrar’s Officer where there is a Sworn Translator. Please enclose a self addressed envelope with necessary stamps for normal post or registered post.

Pension scheme

Question: Please let me know how we contribute to the pension scheme introduced by the Government who are not taking Government pension.

Manatunga

Anuradapura

Answer: The social security board has introduced pension scheme for persons who are not receiving Government pensions. You can obtain this information from the following address. Please send your copy of the birth certificate or photocopy of the identity card with the self address envelope to the Director, Social Security Board, No150 A, LHP building First floor, Nawala Road, Nugegoda. Tel No 0112823614.

Or you can obtain the information from the social service officer at the Divisional Secretaries office in your area or Grama Niladari in your village

Prohibited degrees of relationship in Kandyan marriages

Question: Can you explain the prohibited degrees of relationship in Kandyan marriages?

P. Tamara

Kandy

Answer: Section 5 and 6 in the Kandyan Marriage and Divorce Act No. 44 of 1952 as amended explains that

(1) No Kandyan marriage shall be valid

(a) If either party thereto is directly descended from the other: or

(b) If the female party thereto is the sister of the male party thereto either by the full or the half-blood, or the daughter of his brother or of his sister by the full or the half-blood, or a descendant from either of them, or the daughter of his wife by an other father, or his son’s or grandson’s or father’s or grandfather’s widow: or

(c) If the male party thereto is the brother of the female party thereto either by the full or the half-blood, or the son of her brother or of her sister by the full or the half-blood, or a descendant from either of them, or the son of her husband by another mother, or her deceased daughter’s or granddaughter’s or mother’s or grandmother’s husband.

(2) No marriage or cohabitation shall take place between persons who, being subject to Kandyan law, stand towards each other in any of the degrees of relationship specified in paragraph;

(a) or paragraph

(b) or paragraph

(c) of subsection (1) of this section ; and in the event of any marriage or cohabitation between such persons, each such person shall be guilty of an offence under this Act.

(6) No Kandyan marriage shall be valid

(a) If one party thereto has contracted a prior marriage and

(b) If the other party to such prior marriage is still living,

Unless such prior marriage has been lawfully dissolved or declared void.