legal aid commission

Democracy Vs Juristrocracy

The recent development of judicial power in important democracies like the US and India has raised a new debate relating to the exercise of State power. The debate on the supremacy of law is fast deteriorated to an argument as to who is more influential, the elected law makers or the unelected non-partisan interpreters of the law-the judiciary. Judicial activism in two of world’s largest and most hallowed democracies United States of America and India have provided fuel to the debate.

The US and India with written Constitutions have arrogated power of Constitutional interpretation to their respective Supreme Court. There are no separate Constitutional Courts for the resolution of Constitutional disputes like in France. Thus the Judges of the US Supreme Court who once appointed could be removed only by death or premature resignation and the Supreme Court of India who is tenure is Constitutional secured until the date of retirement, impeachment or voluntary resignation.

Supreme Court Judges in both countries once appointed exercise unbridled constitutional powers to supervise and strike down laws enacted by periodically elected legislature. The unrestrained return and exercise of judicial power in the recent past has resulted in the development of the term and the debate surrounding Juristrocracy. Juristrocracy means a system of governance where judicial interpretation of laws made by elected legislative prevails.

The prevailing of the judiciary over the legislature which enacts the laws and executive which implements then is predicted on the liberty of the individual.

Politically elected Parliament and Executives have their partisan loyalties and the desire to the re-elected. The judiciary at least in theory is not constrained by the need to be re-appointed when reaching the age of retirement.

The Sri Lankan Constitution does not vest the apex judiciary powers analogies to those of US and Indian Supreme Courts to strike down laws after enactment as unconstitutional.

The Constitutionality of laws are examined prior to enactment in Bill form and detail amendments to Bills proposed in Parliament is rarely examined by the Apex Court. Thus the scope of judicial interpretation of legislation, a fundamental constitutional bulwark in US and Indian Constitution is hardly possible in Sri Lanka.

The court which has consistently been ultra conservative on the interpretation of public interest litigation due to the restrictive nature of the Sri Lankan Constitution suddenly adopted expansive definition of public interest activism in some landmark cases relating to insurance, banking and alienation of State land. The new found judicial activism was received with mixed enthusiasm.

The inevitable showdown between judicial penchants for expansion of the judicial activism in public interest stakers came to a sudden halt when the executive ignored the judgment of the apex judiciary in the price of petroleum case.

A few years earlier the legislation under late Speaker Anura Bandaranaike openly challenged the legitimacy of the Supreme Court to intervene in Parliamentary affairs. In the Petroleum case the Executive defined the order of the Supreme Court. It is evident that unlike in the US and India, Juristocracy is unlike to take root in the near future.

S.S.Wijeratne

Training and capacity building of Legal Aid lawyers

The Legal Aid Commission (LAC) held its mid-year sessions for the LAC lawyers islandwide on July 7, 8 and 9.

For all of us who gathered at the Hector Kobbekaduwa Agrarian Research Institute Auditorium, the mid-year sessions of the LAC were memorable days for more reasons than one.

During the three days the lawyers were able to get practical training in many aspects of the law. Moreover, lawyers from the Colombo Head Office and those from the 57 Centres islandwide interacted and discussed common issues faced by them.

The training program commenced with the lighting of the traditional oil lamp by the Chairman S S Wijeratne and the other participants.

It was indeed a welcoming sight to see the LAC lawyers islandwide from Colombo, Matara, Jaffna, Batticaloa, Kurunegala, Akkaraipattu, Moneragala, Wellawaya, Polonnaruwa, Ratnapura, Emilipitiya, Kuliyapitiya, Kalutara, Vavuniya and 44 other Centres gathered at this venue singing the National Anthem in one voice. In his opening address LAC Chairman S S Wijeratne congratulated the Legal Officers and Directors from the North and the East for having continuously carried on the Legal Aid work even during the civil strife.

He also mentioned that all efforts were being taken to open Centres in Muthur and Valachchenai. He thanked all the delegates for their commitment to provide legal aid to deserving persons, amidst many practical difficulties.

The workshops and lectures focused on many subjects: Public Law (Fundamental Rights and Administrative Law), Civil Law (Pleadings and Issues) and Criminal Defence and Bail. Compensation in accident cases was also discussed at great length by LAC Director General Justice Hector S Yapa.

This was of importance to all the delegates who are now handling an increasing number of accident-compensation cases in the District Courts. The importance of the implementation of the provisions of the ICCPR Act No 56 of 2007 was also explained to the participants. A novel feature of the program was a lecture on counselling.

The lecturers and panelists at the workshops were eminent senior counsel and senior lawyers; Manohara de Silva, PC and LAC Members Uditha Igalahewa, AAL and Sunil Cooray AAL, Rohan Sahabandu, AAL, Thisath Wijegunawardana AAL and Mayura Gunawansa AAL, Prasanna Lal de Alwis AAL, U. R. de Silva, AAL, and Kanthi Kannangara AAL, Additional Solicitor General Palitha Fernando PC, LAC Consultant Nelum Gamage and Sociologist Kaushalya Gunawardena.

Another remarkable feature was the guidance given to outstation lawyers in entertaining fundamental rights cases. They were instructed to interview clients and wherever there is a case to be filed the outstation lawyer concerned should draft the papers, obtain the signature of the applicant and refer the papers to the LAC, Human Rights Bureau at the Head Office. Thus the people from the outstations would not be inconvenienced in coming to Colombo.

Discussions among the lawyers after each session was very fruitful and most of the discussions were initiated by Senior Attorney and Director of the LAC Centre, Anuradhapura Asoka Mahadivulweva. Both Mahadivulweva and LAC Kandy Centre Director U R N Ranatunga were highly commended for their dedication and continuous commitment to legal aid for more than 16 years.

The three day sessions were sponsored by the UNDP Equal Access to Justice Project (EA2JP) under National Languages and Social Integration Ministry.

The Chairman and the Commission Members extended their thanks to the EA2JP for their support to enhance the output of the LAC lawyers.

The three day sessions concluded on July 9 and all the delegates were extremely thankful to the EA2JP, the Chairman, Members of the Commission and the organizer of the Session Chulari Hettiarachchi for conducting very fruitful mid-year sessions.

Nelum Gamage - Consultant-LAC

English stenography course for court staff

Upon the request made by Chief Justice Asoka de Silva to Bar Association President Shibly Aziz, PC, the BASL launched an innovative project to conduct an intensive three month English Stenography Course for 20 court staff, which is a first event in the history of the BASL.

The United Nations Development Project (UNDP) is sponsoring this program and the BASL enlisted the services of the National Apprentice Industrial Training Authority (NAITA) to conduct the training.

All participants will be issued a certificate of competency at the end of the training based on the results of an examination.

The BASL hopes to conduct this course for the second batch of 20 court staff immediately following the completion of the inaugural course.

The BASL is working closely with the JSC and JSC has also shown much interest in this project.

The BASL launched another project on Continuing Legal Education (CLE) on August 7, 2010 with the assistance of the UNDP had a very successful program in Avissawella where about 100 members from the Avissawella Bar participated. Among the speakers were, Retd Judge Balapatabendi, Court of Appeal Judge Justice Salam and High Court Judge Justice Laffar. BASL President Shibly Aziz PC and BASL Secretary Mahinda Lokuge also graced the occasion which was organized by CLE Committee Chairman Anoma Gunathilaka.

Disclaimer

The answer 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. E-mail [email protected]. Website: www.lawaid.org

Legal Aid vacancies

The Legal Aid Commission has eight vacancies for Legal Officers in Jaffna, Vavuniya, Mannar and Kilinochchi.

Applications are invited from Tamil speaking Attorneys-at-Law, Law Apprentices or LLB graduates. for the above vacancies.

Contact: Chairman, Legal Aid Commission, No. 129, High Court Complex, Hulftsdorp, Colombo 12

Questions and Answers

What pensioner should do before going abroad

Question: I am a pensioner. I have decided to go abroad. What should I do before my departure?

Mary, Kaduwela

Answer: You have to first 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. They will then 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 Pensions 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 fulfil the following requirements:-

(a) you should have permanent residency/citizenship

(b) approval of the High Commissioner

(c) approval from the Pensions 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

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Questions related to maternity

Question: Please advise me as to the period within which

(i) Benefit due in respect of two weeks preceding the confinement be paid?

(ii) The benefit due in respect to the period which follows the confinement be paid according to Maternity Benefits Ordinance?

Answer: (I) It should be paid within 48 hours of production of proof of confinement.

(II) It should be paid in two instalments at the end of 2nd and 4th week respectively after confinement.

Provision for nursing intervals

Question: What is the provision for nursing intervals for nursing mothers under the Maternity Benefits Ordinance?

Answer: According to Section 12(b) of the Amendment Act No. 13 of 1978 the employer of a workman shall if she has nursing child under one year of age allow her in any period of nine hours, two hours of nursing intervals at such time as she may require.

The intervals shall be not less than 30 minutes where a suitable place or creche is provided by employer - where not provided not less than one hour.

Maintenance of creches

Question: Does the Maternity Benefits Ordinance provide for establishment and maintenance of creches?

Answer: Yes. Section 12 (a) provides for it. It also requires the Minister to make regulation prescribing the maintenance of Creches. No regulations have been made.

Maternity benefits

Question: I am employed as a labourer in an estate. I have not given notice in form C to my employer before the date of confinement. Am I entitled to payment of maternity benefit?

Answer: Under Section 7(2) of the Maternity Benefits Ordinance you are entitled to payment of maternity benefits.

Identity card for the blind

Question: I have a daughter who is blind. She is over 18 years of age and has already obtained the National Identity Card issued by the Department of Registrar of Persons.

I wish to get a Special Identity Card for my daughter. How can I obtain this Special Identity Card? Please advise me.

J Fernando - Kurunagala

Answer: You can obtain this Special Identity Card for your daughter who is blind from Social Services Department.

The Social Services Department has taken measures to issue a Special Identity Card for persons with seeing disabilities (Blind, dumb, mentally disability) in order to facilitate them to attend to their day-to-day activities. This has been approved by the Registration of Persons Commissioner. You can obtain the application from the Social Services Department website or from the Divisional Secretariat Office in your area.

Once the application form is filled by the applicant with blindness, it has to be certified by the Grama Niladhari with regard to the correctness of information submitted by the applicant. You need two copies of an Identity Card size (length 3 1/2cm and width 2 cm) photograph of the applicant - one pasted on the application (relevant place) and certified by the Grama Niladhari and the other in a small envelope attached to the application.

When confirming the blindness you may please satisfy yourself with at least one of the following namely, the medical certificate/ confirmation by the Grama Niladhari on his knowing the applicant for quite a long time and on information provided by the neighbours /documents to prove that the applicant has studied in a school or a vocational training institute meant for persons, with blindness/ written certificate from the Secretary or the Chairman of any recognized organization pertaining to persons with blindness.

You have to send the perfected application form to Social Services Department by registered post. The Department on being satisfied with the documents submitted will take steps to issue this Special Identity Card for your daughter. This Identity Card is issued free of charge.

National Council for Road Safety

Question: Is there any method of making payments for hit and run accident victims where the perpetrator is not identified?

Amanda - By e-mail

Answer: Yes, the National Council for Road Safety (NCRS) which was established under the Motor Traffic Act (Amendment) No. 5 of 1998, has introduced a Compensation Scheme for persons critically injured or deceased as a result of being victims of hit and run road traffic accidents.

Under this scheme, in the event of a road traffic accident, when the vehicle involved in the accident is not identified, the critically injured victim or the dependants of the deceased are eligible to claim for compensation.

Method of applying for compensation

Compensation payment application could be obtained at any of the following offices;

* Police Station of the area where the applicant is residing in

* Divisional Secretariat

* National Road Safety Secretariat at Transport Ministry, No.1, D. R. Wijewardana Mawatha, Colombo 10.

* From the website WWW.transport.gov.lk.

Application must be submitted within six months of such an accident and once at the requirements in view of the application received are fulfilled, the compensation will be granted.

Amount granted as compensation

* At a death Rs 50,000

* At a grievous injury Rs 30,000

The decision of the NCRS will be the final decision in respect of all the applications submitted for compensation.

Application to be forwarded to and inquires from:

The Secretary, National Road Safety Secretariat Transport Ministry No. 1, D.R.Wijewardena Mawatha, Colombo 10.

Tel: 011-2687105 Fax: 011-2669305

Pedigree

Question: I recently purchased a block of land at Kandy. I intend to obtain a housing loan from a Bank. One of my friends who is working in a Bank told me that the Bank will want to look at the pedigree of the land which I have purchased. As I have no idea of what a pedigree is, I would be thankful to you, if you could kindly explain this to me.

Jessika - Kandy

Answer: A pedigree is a claim in which the relevant details of an abstract of title are summarized. As in an abstract of title the titles of a property from the 1st owner to the present owner has to be stated in the pedigree, along with details as, the names of the transferor or transferee, nature and the number of the deed, date of attestation and the name of the Notary.

Banks and other financial institutions require a title report along with a pedigree in granting a loan on a property as it helps to find out the history of the property without much confusion. A pedigree helps to examine a title of any particular property.

If the property is gained by intestate succession, the portion of property gained by inheritance differs according to the law the deceased was governed. Namely, Roman Dutch Law, Kandyan Law, Thesavalamai Law or Muslim Law.

If the deceased was governed by common law the manner the property is divided could be simply stated as follows:-

If the deceased was married 1/2 of the property would be granted to the spouse and the other 1/2 to be equally divided among his children. If they haven’t any children 1/2 to the spouse and the other 1/2 to parents of the deceased in equal shares.

If the parents are not alive equal shares to the deceased’s brothers and sisters. If only one parent is living 1/2 of 1/2 would be granted to the living parent and other 1/2 of 1/2 would be granted to brothers and sisters of the deceased equally.

If the deceased is a divorcee 1/2 goes to the children if children are alive and balance goes to the parents equally or if one parent is alive 1/2 of 1/2 goes to the living parent and balance goes to the brothers and sisters equally.

The annual Lawyers’ Training Program organized by the Legal Aid Commission funded by the UNDP A2J project was held on August 7,8,9 at the Hector Kobbekaduwa Auditorium. (top) Legal Aid Commission members Dr. Sunil Cooray, Rohan Sahabandu, Tissath Wijegunawardena and Legal Aid Commission Chairman SS Wijeratne (Second) A section of the gathering.