Legal aid commission

Victims and Witness Protection Law needed

On June 6, 2008, the Assistance and Protection to Victims of Crime and Witnesses Bill was tabled in Parliament by Justice and Law Reforms Minister as an urgent Bill.

The draft Bill was the culmination of a collective process pioneered by the National Center for Victims of Crime (NCVC) in 2002. The NCVC with the support of donor agencies, i.e. Asia Foundation, UNHCR and Canadian International Development Agency (CIDA) steered an island wide awareness program on the rights of the victims of crime from 2002.

The Law Commission of Sri Lanka with pivotal input from Attorney-General's Department, finalized the Cabinet paper which was steered as an urgent proposal by President Mahinda Rajapaksa himself.

The Bill was drafted by the Legal Draftsman's Department and with Cabinet approval was examined by the Supreme Court on April 2, 2008.

The Bench consisting of Justices Shirani Thilakawardena, Saleem Marsoof and Andrew Somawansa examined the Bill exhaustively and proposed important improvements.

The Bill was determined not to be inconsistent with the provisions of the Constitution.

However, intervening dissolution of Parliament prevented the enactment of the law.

The newly appointed Presidential Commission on 'Lessons Learned and Reconciliation Commission' has also underlined the importance of Witness Protection for it's work.

The Bill consists of VIII Parts and 36 sections and contains an exhaustive definition of the terms victims of crime and witnesses. The proposed Bill includes victims of human rights violations within the definition of the term victims of crime thus making the law an important pillar in the human rights protection in the country.

Thus a 'victim of crime' means "a person who has suffered any injury, harm, impairment or disability whether physical or mental, emotional, economic or other loss, as a result of an act or omission which constitutes an offence under any law or an infringement of a fundamental right guaranteed by the Constitution or the violation of a human right referred to in the International Convention on Civil and Political Rights (ICCPR) Act No.56 of 2007 and includes a person who suffers harm as a result of intervening to assist such a person or to prevent the Commission of an offence and the parent or guardian of a child victim of crime and any member of the family and next of kin of such person, dependents and any other person of significant importance to that person".

The inclusion of human rights violation under ICCPR Act No.56 of 2007 is very significant. The proposed enactment has recommended the violation of rights of alleged offenders punishable as a violation of human rights.

Similarly the violation of the rights of a child, denial of access to public benefits provided by the State are made legally justiceable by the High Courts of the country are included in the definition.

The victims and witnesses draft law in its Part II enumerates the rights of the victims of crime and witnesses.

The provisions are exhaustive and encompass the provisions on rights of victims of crime as enumerated in 1985 UN declaration on the subject.

This include the victims right to dignified treatment, legal representation, psychological counselling, restitution of lost property, right to information about the court proceedings and expedient completion of litigation.

The mechanism through which the above rights are to be implemented is the National Authority for the protection of victims of crime and witnesses together with an Advisory Commission.

The nine member Authority would consist of five ex-officio members representing Justice, Police, Human Rights, Ministries and Attorney-General and the Inspector General of Police.

The remaining four members would be appointed by Justice Minister with the concurrence of the President, the Chief Justice and the Attorney-General. The Chairman of the Authority would be similarly appointed.

The Bill envisages a special protection division in the Police Department and Compensation Fund to provide compensation to victims in appropriate cases. Finally, law provides for a category of offences that may be committed against the victims and witnesses like intimidation and threats which are made punishable with imprisonment up to seven years.

Victim and Witness Protection Laws were long awaited and had been the subject of discussion both nationally and internationally, as the Law is intended to bring about needed change in the criminal justice system.

The law is expected to be passed unanimously in Parliament. The objective of the law is above partisan politics.

S S Wijeratne

Legal Empowerment Volunteers (LEVs) needed

The Legal Aid Commission (LAC) is recruiting students to become Legal Empowerment Volunteers in a prestigious scheme, sponsored by the UN Volunteers, based at one of the Legal Aid Commission's regional centres and to complete 300 hours of work.

This is an excellent opportunity to engage in community work, deliver legal awareness and empower disadvantaged people.

Are you:

A Sociology or Law student at the University of Colombo/ Eastern/ Jaffna/ Kelaniya/ Peradeniya or Ruhunu? (Those who completed the degree are also considered).

Able to attend an intensive training in August 2010?

Able to commit 300 hours of volunteer work between September and December 2010?

Passionate about volunteering at the community level?

Able to volunteer in one of LAC's regional centres in Sri Lanka (e.g. Attanagalle, Maho, Jaffna, Trincomalee, Ampara, Kuliyapitiya, Nuwara Eliya and elsewhere)?

Then apply to become a Legal Empowerment Volunteer!

Benefits

A small allowance for travel and living expenses

Valuable practical and work experience

Training s Certificate

Legal Empowerment Volunteers (LEV) was established in 2008 and nearly 40 volunteers have completed the scheme.

Send your bio-data, requested LAC regional centre and a short letter indicating educational background, volunteer and work experience to: Ruth Unstead-Joss/ Piyumi Kumari, Legal Aid Commission, No.211 High Court Complex, Hulftsdorp Street, Colombo 12, [email protected]

T.P. 011-3137153

Deadline for applications July 9,2010. The LEV Program welcomes applications from Sinhala, Tamil and English speakers and students from all ethnic and religious backgrounds.

ICLP Diploma in Commercial Arbitration - Examination results

The results of the sixth batch of the ICLP Diploma in Commercial Arbitration was released on June 8 by the Board of Examiners K. Kanag Isvaran PC, S.S. Wijeratne, (Course Director), Dr Harsha Cabral PC, Prof Chitra Wedikkara, Dr E.M.G.de Zylva, Uditha Egalahewa, Shehara Varia, Ananda Ranasinghe, Arjuna Obeyesekere and Justice Saleem Marsoof PC (Chairman).

Attorney-at-Law Dinuka Kottegoda topped the Batch securing a Distinction and won the SS Wijeratne prize for the best student 2009/2010. M.B. Peiris won the Walter Laduwahwetty prize for the best Award. Ishara Madarasinghe secured a Distinction.

Students who secured Merit passes are M.B. Peiris, T.K.S.D. Senatilleke, K.N.B. Amarasooriya, K.H. Piyumi Maheshanie, Kapila K. Ranatunga, W.T.I.N. Tissera, L.K. Jayasinghe, Sunil B.F. de Silva, S.S.G. Ekanayake, Indra M. Rajapakse and K. Ekanayake.

Iresha Premachandra, K.S.A. Pethiyagoda, K.N.L. Wijeratne, H.A.A.D. Hewagama, Nisha A. Thambugala, K.K. Sunil, M.B.S. Nisansala, S.B. Sanjeewa Fernando, D.M.P.S. Dissanayake, D.M.D.S. Dissanayake, N. Rex, A.S. Wijethunga, T.T.K. Attanayake, T.G.S.S. Gamage and T. Paskaran obtained passes.

Questions and Answers

Gratuity matter

Question: My wife was employed as an English teacher in an International School in Colombo. She resigned on August 1, 2009 after serving for 17 years in the same school.

She applied for her gratuity on December 23, 2009 but upto now, there is no written acknowledgement for her letter. The Managing Director of the Institution always promises that he would settle the claim as early as possible, when she contacts them over the telephone but still, no signs of a settlement in sight.

Please be good enough to advice what further action could be taken in this matter as we need this money for medical treatment. I kindly expect an early reply from your esteemed Legal Aid Column which appears on every Friday in the Daily News.

Nanayaddara

Moratuwa

Answer: You have not mentioned as to where this school is situated. Since there is no response from the Managing Director of the School to your wife's request for gratuity, she should lodge a written complaint with the Assistant Commissioner of Labour, Panadura if the school is situated within the Jurisdiction of Panadura. If it is outside you should lodge your Complaint with the Assistant Labour Commissioner in the area where the school is situated, the Commissioner of Labour thereafter will summon your Employer and see that your gratuity is paid.

It is provided in the payment of Gratuity Act that it should be paid within 30 days of an employee ceasing to be an employee. If it exceeds 30 days the employer is bound to pay surcharge. If your wife has 17 completed years of service, she is entitled to eight and half (8 1/2) months salary. It is computed at the last salary drawn by the employee. If your wife needs any assistance she could get in touch with the Legal Aid Commission in that regard.

Pension matter

Question: My son who was a Major in the Sri Lanka Army died of natural causes on March 2007. At the time of his death he was 41 years old and served the Sri Lanka Army for 21 years (Regular Service).

His wife and children got his gratuity and also receives her monthly pension. It now appears that the monthly pension she receives is far less than, what the others get as monthly pension of the same 'Service Period Served'.

It will be greatly appreciated, if you could please verify from the relevant Army authorities and let me know the exact Monthly W&OF pension at your earliest convenience in your 'Legal Aid Column' as I am unable to attend personally due to my old age. Thank you very much for the immense service you are rendering through the esteemed 'Legal Aid Column' on every Friday in the Daily News.

Edward

Answer: We can refer your matter to the Pension Department. Please send us a letter giving all the information.

Domestic violence

Question: My sister has decided to file a domestic violence case in court. Her husband is a businessman in this area. He has all the connection in the area. She is afraid that if she files a case the media will publish it. Can they do so under the Domestic Violence Act?

Sadamal

Merigama

Answer: Under the Domestic Violence Act it is prohibited. If he publishes the incident your sister can file action against the person who published the report. Under the Section 20 of the Domestic Violence Act. Any person who prints or publishes;

(a) the name or any matter which may make known the identity of an applicant or a respondent in an application under this Act; or

(b) any matter other than a judgment of the Supreme Court or Court of Appeal, in relation to any proceeding under this Act, in any Court,

Shall be punished with imprisonment of either description for a term which may extend to two years or to a fine or to both such imprisonment and fine.

Child protection

Question: Please let me know what kind of powers vested in juvenile courts in respect of children and young persons in need of care and protection?

Is there a Legal Aid Centre in the Juvenile Courts?

Samaranayaka

Kalutara

Answer: Children and Young persons Ordinance Section 35 vested powers to take care of children. Every Magistrate Court is a Juvenile Courts.

Under this ordinance the powers vested are;

If a Magistrate Court sitting as a Juvenile Court is satisfied that any person brought before the court under this Section by any officer of a local authority or by any Police officer or authorized person, is a child or young person in need of care or protection, the court may either;

1) a) If he has attained the age of 12 years, order him to be sent to an approved or certified school; or

b) Commit him to the care of any fit person, whether a relative or not, who is willing to undertake the care of him, or

c) Order his parent or guardian to enter into a recognizance to exercise proper care and guardianship; or

d) Without making any other order, or in addition to making an order under either of last two foregoing paragraphs, make an order placing him for a specified period, not exceeding three years under the supervision of a probation officer, or of some other person appointed for the purpose by the court.

2) Any officer of a local authority, or any Police officer or authorized person having reasonable grounds for believing that a child or young person is in need of care or protection may bring him before a Magistrate Court sitting as a Juvenile Court.

3) For the purpose of this Section, the expression 'authorized person' means any officer of a society which is authorized by general or special order of the Governor-General to institute proceedings under this Section any pay person who is himself to authorized. Yes the Legal Aid Commission has a branch in the Juvenile Courts at Bambalapitiya.

Juvenile Court Complex

Bambalapitiya,

Tel : 2507687

Emotional abuse

Question: Please let me know whether emotional abuse comes under domestic violence?

Anurada

Kiribathgoda

Answer: Yes, under The Domestic Violence Act No 34 of 2005 the emotional abuse included as a domestic violence. Under the Act;

'Domestic violence' means -

(c) an Act which constitutes an offence specified in Schedule I;

(d) any emotional abuse,

Committed or caused by a relevant person within the environment of the home or outside and arising out of the personal relationship between the aggrieved person and the relevant person;'emotional abuse' means a pattern of cruel, inhuman, degrading or humiliating conduct of a serious nature directed towards an aggrieved person;

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 cannot in accordance with Section 4 of the ETF Amendment Act No. 3 of 1982 deduct three percent from 15 percent contribution by it to EPF and pay the three percent to ETF.

[ Sexual harassment ]

Question: My daughter is working in a private company. According to her one of the clerks in her company is in the habit of joking with her by using bad words. She has complained to her higher authorities several times and he has been advised not to use bad words. In spite of several warnings he is continuing to do so. She has decided to resign from the company. Is there any possibility in law to stop this kind of abuses in her company without one leaving the employment?

De Mel

Rajagiriya

Answer: Resigning from the job will not solve the problem. The harassment amends to sexual harassment which is a criminal offence. It is provided in Section 345 of the Penal code that; "Whoever, by assault or use of criminal force, sexually harasses another person, or by the use of words or actions, causes sexual annoyance or harassment to such other person commits the offense of sexual harassment and shall on conviction be punished with imprisonment of either description for a term which may extend to five years or with fine or with both and may also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for the injuries caused to such person.

Explanation - 1 Unwelcome sexual advances by words or action used by a person in authority, in a working place or any other place, all constitute the offence of sexual harassment.

Explanation - 2 For the purposes of this Section an assault may include any act that does not amount to rape under Section, 363

In your question your daughter has taken the primary step to overcome the situation. Then you have to make a complaint to the Police in your area or company area. Then they will file an action against the person who harasses your daughter.

If you need any assistance please contact our legal aid centers throughout the island.