LEGAL AID COMMISSION

Mediation vs Litigation

In 2009, the 57 Legal Aid Centres of the Legal Aid Commission provided legal advice and legal representation to some 32, 230 indigent litigants islandwide from Jaffna to Hambantota. This indicates the litigious nature of Sri Lankan society.

Adversarial litigation often resulting in aggravated conflicts is not conducive to peace and development in Sri Lanka. One of the contributory factors for our protracted destructive national conflict is the adversarial psyche created by courts systems imposed on us by colonial masters.

The present court system is burdensome to the poor making constitutional aphorism that all are equal before the law and entitled to equal protection of law mere meaningless rhetoric.

Our judicial and legal leaders from Sir Ponnambalam Ramanadan in early 1900s to the new Attorney-General, C. R. de Silva, PC have spoken of Law’s delays and promised to take corrective action. Law’s delays burden the poor more than the rich and often the rich uses courts with delayed justice as an instrument of oppression.

Was Sri Lankan Society always litigious?

The answer is no. Until the imposition of the adversarial court system on the recommendations of Colebrook Cameron Commission in 1833, the dispute resolution process in Sri Lanka was mediation based except in capital offences like murder and treason.

The Gam Sabha or the Village Council consisting of elders and village religious leaders resolved village disputes amicably through discussions, negotiations and the use of hallowed traditions.

Dr Christy Weeramantri, respected international jurist has highlighted the role of the Gam Sabha in village governance of our country.

Gam Sabha represented the moral consciousness of the community and created a voluntary duty based society. Dispute mediation was an important part of its traditional functions.

The British Colonial rulers who wanted to replace the mediation system with commerce friendly adjudication introduced the courts system where English was the medium of judicial process.

They also introduced laws such as the waste lands ordinance and crown land ordinance and called upon the Kandyan peasantry to prove title to their traditional homelands.

The poor peasantry failed due to lack of deeds and the rulers confiscated the land and virtually gifted them to coffee and tea planters. Kandyan peasantry continues to be the most deprived segment of Sri Lankan society.

Mediation resulting in win-win solution to disputes even though currently popularized by the Harvard Negotiation Project was first expounded 2550 years ago by the Buddha in stanza 201 of Dhammapada. He pronounced victory breeds hatred.

The defeated live in pain. Happily the peaceful live, giving up both victory and defeat.

Adjudication in courts produce winners and losers perpetrating continued hatred and ill-will. It can be compared to war where ultimately no one really wins.

Sri Lanka has made an effort to restore mediation as a dispute resolution mechanism. The Mediation Act No.72 of 1988 and 21 of 2003 are important steps.

The Alternative Disputes Resolution Institute has trained 5000 Grama Niladharies in mediation skills and basic humanitarian law with the support of the Asia Foundation. An enthusiastic response from village communities indicate mediation culture could be reawakened in our country.

Watershed: Legal Aid for accused in criminal cases

Application of the International Covenant on Civil and Political Rights (ICCPR) Act No. 56 of 2007:

Legal Aid Law No 27 of 1978 has stipulated that legal assistance is for deserving persons. But from the very incept legal aid was made available in civil litigation. This may have been due to financial constraints or even in the belief that suspect criminals should not be given legal assistance.

Chapter III of the Constitution of Sri Lanka deals with fundamental rights. But legal assistance is not recognized as a fundamental right per se. But it may be construed that legal assistance is implied as a right by a reading of the articles in Chapter III.

Article 12(1):

“All persons are equal before the law and are entitled to the equal protection of the law”. Article 13( 3) :

“Any person charged with an offence shall be entitled to be heard, in person or by an Attorney-at-Law, at a fair trial by a competent court.”

The above two articles read together implies the right of an accused to be represented in court by an Attorney-at-Law irrespective of whether the relevant case is a criminal or civil case.

But even without having recourse to the Constitution, the Code of Criminal Procedure Act No 15 of 1979 has implicitly recognized the right of an accused to have legal assistance in criminal cases before the High Court and in appeal in the Appellate Courts.

Section 195 (g) of Chapter XVII, of the Code of Criminal Procedure Act No 15 of 1979 in trials by High Court, “Where the accused on being asked by court so requests, assign an attorney-at-law for his defense.”

Section 353 of the above Code recognizes the right for an accused-appellant in the Appeal Court for legal aid. In such circumstances the Court assigns an attorney-at-law for the appellant. Yet for all, the Code is silent in the case of accused in Magistrate’s courts. By this lacuna in the law, those deserving legal aid/assistance were in a vulnerable position and helpless.

This position changed in the year 2007 with the International Covenant on Civil and Political Rights (ICCPR) Act No 56 of 2007.

This law recognized the right of an accused charged with a criminal offence in any court of law to be informed of the right of such accused for legal assistance and further the right to be provided with assistance in appropriate cases where interest of justice requires. This right is also recognized for children if substantial injustice would otherwise result.

Thus the ICCPR Act was really a watershed in the Sri Lankan justice system by recognizing the right of an accused for legal aid.

Moreover with the introduction of the ICCPR Act the right for the accused defendants for legal aid becomes a reality.

Yet for all it is only in the year 2009 the Legal Aid Commission (LAC) took the initiative to appear for criminal defendants in a limited number of LAC Centres. This initiative was possible due to the financial assistance of the UNDP funded Equal Access to Justice Project (EA2JP) of the Ministry of National Languages and Social Integration. (Previously Constitutional Affairs and National Integration Ministry).

The LAC has for a number of years interviewed remandees and represented them in court to seek bail. Due to financial constraints ‘bail cases’ could not be proceeded with. But from last year the LAC interviewed remandees in selected prisons to represent them in court for their bail applications.

The panel lawyers assisted the LAC in this work. But on an evaluation of the 2009 work indicated that the panel-lawyers who more or less did a service needed support from the LAC centres in the preparation of papers filed in court. Thus it is expected the 2010 program would be more fruitful. The prisons program of the EA2JP has many stakeholders other than LAC, who carry out many other activities.

The present LAC/EA2JP Prisons program covers nine prisons, but wherever an application is made by remandees through their kith and kin the LAC undertakes their court representations in deserving cases.

The LAC-EA2JP has additionally identified five LAC centres to undertake criminal defence cases in a comprehensive manner while the other 53 LAC centres too could undertake limited number of criminal defence cases. A limited category of criminal cases are not under taken by LAC.

The remandees languish in jail due to delay in prosecutions, delay in court receiving reports from certain institutions like Government Analyst’s Department, etc.

It is imperative that the accused in criminal cases have their rights recognized in a more comprehensive manner in keeping with the spirit of the ICCPR Act NO.56 of 2007.

NELUM GAMAGE, Consultant, Legal Aid Commission

Seminar, workshop

A seminar and workshop on ‘Disposal of Productions in Criminal Cases’ organised by Access to Justice Project - UNDP in collaboration with the Judicial Services Commission will be held tomorrow (June 5) from 9 a.m. to 4 p.m. at the Galadari Meridian Hotel, Colombo.

Judicial officers, Court staff, representatives from the AG’s Department, Government Analyst’s Department, Motor Traffic Department Commissioner Justice Ministry and Police officials will participate.

Questions and Answers

Children taking part in entertainment

Question: Please let me know whether there is any restrictions for children to take part in entertainment?

SRIYANI, BERUWELA

Answer: A child should not be allowed to take part in any shows meant to entertain for which a fee is collected from the audience.

However such restrictions would not apply to a performance for which no fee or reward is made to the child or the net proceeds go to a charity or for educational purposes other than for private profit and organised by pupils of a school and supervised by public authority.

No person under 16 years of age should take part in public performance in which his life or limbs are endangered.

No child should take part or be trained in performances of a dangerous nature. A young person under the age of 16 years should not be trained or should take part in similar performances unless it is in conformity with the terms of license granted and in force under Section 20 of the employment of women, young person and Children’s Act.

This licence should be granted by the authorized officer.

The authorized officer, when processing an application for granting of licence, may call for a medical report from a medical officer of Health Department to ascertain whether or not the health of such person could be affected.

He could seek the assistance of Superintendent of Police to investigate and report in order to determine whether or not the licence should be granted.

The licence should specify the place of training and embody conditions for the protection of the person. This licence could be reviewed and revoked by the authorized officer at his discretion.

Labour tribunal

Question: I filed action in the Labour Tribunal in Colombo. The inquiry went on for six years. The tribunal made order in May 2009 that a sum of Rs. 400,000 is deposited with the Assistant Commissioner of Labour, Colombo for payment to me. The money has not been deposited yet. The Labour Department is taking time to recover the money. Can I file action in Magistrate Court to recover the money?

JAGATH ASOKA, COLOMBO

Answer: Section 33(2) of the Industrial Disputes Act provides for a written petition from you to magistrate having jurisdiction in the area you are employed to recover the money. However, Section 44 provides that no prosecution for an offence under the Industrial Disputes Act shall be instituted except by or with the written sanction of the Labour Commissioner. You may obtain written sanction from Labour Commissioner and thereafter file a written petition in Magistrate Court.

EPF contribution

Question: I’m the HR manager in a company in Colombo. This Company has after notice to Labour Commissioner of elected to contribute 15 percent to EPF from 1.1.1995 in addition to three percent contribution to ETF. The company is now running at a loss. Can the Company reduce the contribution to EPF to 12 percent the rate due in law?

L. GUNATILAKA, COLOMBO

Answer: Your company cannot revoke a notice already given to Labour Commissioner to contribute 15 percent. It has to continue to contribute 15 percent. Section 11(2) of the EPF Act no 15 of 1958 specifies that such election is irrevocable. Your Company can not in accordance with Section 4 of the ETF Amendment Act No. 3 of 1982 deduct 3 percent from 15 percent contribution by it to EPF and pay the 3 percent to ETF.

Gratuity

Question: I was employed at a company in Kandy as a clerk for 20 years. My services were terminated after domestic inquiry for being rude to the General Manager. There is a balance outstanding loan Rs 75,000 from me. My employer is refusing to pay me gratuity amounting to Rs six lakhs stating that I was dismissed for gross misconduct.

(1) Can the Company deduct the loan from gratuity due to me?

(2) Can the Company refuse to pay gratuity for dismissal for gross misconduct?

AMANTHA, KANDY

Answer: (1) Your company cannot deduct outstanding loan.

(2) It cannot refuse to pay gratuity. Forfeiture of gratuity can be done when termination of service is done for reasons of fraud, misappropriation of funds of employer, willful damage to property of the employer or causing loss of goods, articles or the property of the employer.

You can complain to the Assistant Commissioner of Kandy who will recover gratuity and surcharge for delayed payment.

Criminal matter

Question: Is it an offence to make a false document under the law?

K. KITHSIRI, AMPARA

Answer: Under the Penal Code Section 452 and 453, it is an offense to make false document. The section’s states that;

“Whoever makes any false document or part of a document with intent to cause damage or injury to the public or to any person, or to the Government, or to support any claim or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud, or that fraud may be committed, commits forgery.

Who dishonestly or fraudulently makes, signs, seals, or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed, or executed, by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, or executed, or at a time at which he knows that it was not made, signed, sealed or executed or

Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration

Who dishonestly or fraudulently causes any person to sign, seal, execute, or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him he does not, know the contents of the document or the nature of the alteration.”

Sri Lankan citizenship

Question: My brother who is married to a foreign girl who is not a citizen in Sri Lanka and have a child who was born out side Sri Lanka.

He wish to get a Sri Lankan Citizenship for his child. Can your organisation help us to give proper guidance in this regard?

Further we like to know whether that child inherit property in Sri Lanka if he couldn’t get the Sri Lankan citizenship.

SHALIKA, KAN

Answer: Yes, we can assist you in this regard. Your brother can send us an email [email protected] or your family member can contact us.

Your brother can register his child’s birth in Sri Lanka under the Citizenship Act, Section 5(2). He has to go to the Citizenship Unit 3rd floor of the Department of Emigration and Immigration at Ananda Rajakaruna Mawatha, Punchi Borella, and get the application form.

The application Form should be duly completed and submitted to the relevant section of the Department.

The following documents have to be submitted to the Department along with your application:

1. Application

2. Overseas Birth Certificate of the child

3. Consular Birth Certificate

4. Birth Certificate of parents

5. If the applicant is a Sri Lankan citizen by registration the relevant certificate.

6. Parents’ Marriage Certificate

7. Parents’ travel documents at the time of child’s birth, (If the parent’s are refugees, Sri Lanka Refugee the Divisional Secretary and any other supporting documents.)

8. Declaration that the applicant (father/mother) has not acquired citizenship of a country other than Sri Lanka at the time of child’s birth.

Birth Registration fee:

For application made within prescribed period (one year) - Rs (SL) 5,000. The extra fee should be paid for each delayed year.

If the documents referred to above are submitted without the originals, those documents should have been duly attested by the Sri Lankan Mission or Consulate of the country of domicile.

Answer to your second question we would like to say even though your brother’s son couldn’t get the Sri Lankan citizenship he can acquire the property in Sri Lanka by inheritance under the Finance Act.

Fundamental Rights case

Question: Is there any service given by your commission to poor people who want to file a Fundamental Rights application within one month? Is there a remedy in this regard? Please advice me.

HARROLD, ANURADHAPURA

Answer: Article 17 read with Article 126 of the Constitution clearly states that the time limit is one month from the date of violation.

Therefore such an action cannot be sustained in the Supreme Court if filed after one month. However, if one is prevented or incapacitated from invoking the fundamental rights jurisdiction- e.g. incarcerated or hospitalized, then one month will not begin to run until such is removed.

If you are in a difficulty to file papers within one month, it is advisable to write a letter stating the facts of your case to the Chief Justice. The letter should be sent by registered post.

Our Legal Aid Commission help to poor people who want to file a fundamental right case, the person whose monthly income is less than Rs 8,000.

Copy of Marriage Certificate

Question: I am a Sri Lankan. We got married at the Sri Lankan Embassy in Italy. I would like to know whether we could get a certified copy of our Marriage Certificate in Sri Lanka

NALIKA MILANO

Answer: If you want to get a certified copy of your Marriage Certificate you can get if from the Central Record Room, Maligawatte, Colombo 10. Otherwise you can fill an application in the Website and send it to the above address together with a self addressed stamped envelope. Then they will post it to you.