LEGAL AID COMMISSION
Page compiled by Kalani A Medagoda, AAL
Recusal by Judges
The doctrine and practice of recusal by Judges in respect of cases
coming before them for adjudication was highlighted recently when Court
of Appeal Judge D S C Lecamwasan declined or recused himself from a writ
application filed by a former mayor of Kandy challenging his removal by
the Central Province Chief Minister.
Even though, not publicized, the practice of recusal by Judges in
cases they think that their connection with the facts or persons
involved are such that the cardinal perception of adjudication
Impartially will be compromised. Judges with high Judicial integrity
recuse themselves from hearing a particular case, which will taint them
in public perception.
The doctrine of recusal is voluntarily practice by the majority of
Judges on their own volition but the party who is likely to get
prejudiced as a result of participation of a particular Judge or Judges
may apply to the Court for a recusal of a particular Judge. However, the
final determination whether a particular Judge Continues to participate
or recuse himself from a particular case is the prerogative of the
Judge. The process is an indicator of the integrity of the Judicial
conscience of the Particular Judge.
Recusal in Sri Lanka
Unlike in many other jurisdictions where provisions for recusal are
statutory, Sri Lanka’s Judiciary has followed the general principles of
recusal SUA SPONTE (On their Own). Judges when they perceive
circumstances leading to their disqualification may recues themselves
but a party to a case may, if the facts so permit suggest recusal.
However, Judges are the final arbiters on their own recusal. The
Superior Court Judges recuse themselves on their own but in many
Jurisdictions the refusal to recuse by the minor Judiciary may be the
subject matter for an appeal or an application for a writ of
Prohibition.
Bangalore principles of Judicial conduct 2002
The Bangalore Principles of Judicial Conduct provides in Article 2.5
states that a judge shall disqualify himself or herself from
participating in any proceedings in which the judge is unable to decide
the matter impartially or in which it may appear to a reasonable
observer that the judge is unable to decide the matter impartially. Such
proceedings include, but are not limited to, instances where:-
2.5.1 the judge has actual bias or prejudice concerning a party or
personal knowledge of disputed evidentiary fact concerning the
proceedings;
2.5.2 the judge previously served as a lawyer or was a material
witness in the matter in controversy; or
2.5.3 the judge, or a member of the judge’s family, has an economic
interest in the outcome of the matter in controversy:
Provided that disqualification of a judge shall not be required if no
other tribunal can be constituted to deal with the case or, because of
urgent circumstances, failure to act could lead to a serious miscarriage
of Justice.
Recusal in United States
In the United States, the code of Judicial conduct in Section 455
provides that a federal judge shall disqualify himself in any
proceedings in which his impartiality might be reasonably questioned. A
judge can also be disqualified for personal bias or prejudice.
Section 455, captioned “Disqualification of justice, judge, or
magistrate judge,” provides that a federal judge “shall disqualify
himself in any proceeding in which his impartiality might reasonably be
questioned.”
The same section also provides that a judge is disqualified “where he
has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding”; when
the judge has previously served as a lawyer or witness concerning the
same case or has expressed an opinion concerning its outcome; or when
the judge or a member of his or her immediate family has a financial
interest in the outcome of the proceeding.
General principles of recusal
The duty of Judge is to sit and hear the cases and recusal is an
exception. It should be noted that recusal often result in increasing
the burden on the litigants, their lawyers and the administration of
justice system. The general principles of recusal reported in many
Jurisdictions are as follows:
* The judge is related to a party, attorney, or spouse of either
party (usually) within three degrees of kinship.
* The judge is a party.
* The judge is a material witness unless pleading purporting to make
the Judge a party is false (determined by presiding judge)
* The judge has previously acted in the case in question as an
attorney for a party, or participated in some other capacity.
* The judge prepared any legal instrument (such as a contract or
will) whose validity or construction is at issue.
* Appellate judge previously handled case as a trial judge.
* The judge has personal or financial interest in the outcome. This
particular ground varies by jurisdiction. Some require recusal if there
is any interest at all in the outcome, while others only require recusal
if there is interest beyond a certain value.
The judge determines cannot act impartially.
S S Wijeratne
[ Questions and Answers]
Legal aid units
Question: We like to set up a Legal unit in our school. Kindly
let us know how the Legal Aid Commission could help us in this matter.
Student, Matara
Answer: The Legal Aid Commission has set up a Child Rights
Desk in order to create awareness among the community on child
protection law according to Article 42 of the UN Convention on Rights of
Children and also to provide free legal advice to child victims, child
abuse and violence in children. We also has special child rights book.
Further we issue guidance to schools to set up legal aid unit in their
schools. Therefore kindly send us a request letter including all the
details to the following address:
Child Rights Desk, Legal Aid Commission, 129, High Court Complex,
Colombo 12. Tel. No. 2433618
Access to Mediation Board
Question: How do you access the Mediation Board?
Poul, Mahara
Answer: There are several ways of going to a Mediation Board.
* You can make an application to the Mediation Board yourself. The
application can be prepared by yourself. It must state what your problem
is very briefly; give your name and address; give the name and address
of the other party to the dispute. The Board will then call all of you
for a discussion.
* The Police may refer you to Mediation. This happens when you go to
the Police and they feel that it is a matter which should be resolved by
Mediation or where, according to the Law it has to be referred to
Mediation.
* The Court may refer your case to the Mediation Board if both
parties agree to have it so referred. This is permitted under the law.
Arbitration clause in the agreement?
Question: I have decided to start a business with a foreign
company. We have already drafted our agreement. But we never included
the arbitration clause in our agreement. I want to know whether it is
necessary to include the arbitration clause before the parties sign the
agreement. If the agreement does not include the arbitration clause, can
the two parties resolve the dispute through arbitration. What is the
legal validity?
Thushara, Kalutara
Answer: If you want to resolve your dispute through
arbitration you have to include the arbitration clause in your
agreement. Arbitration clause is mentioned in part (II) of the
Arbitration Act No 11 of 1995. Otherwise when the dispute arises both
parties can enter a submission agreement to resolve the dispute through
arbitration.
In the case of business with the foreign company it is advisable to
include the arbitration clause, because the arbitration award is
enforceable internationally.
Sri Lankan citizenship
Question: My baby was born in Italy two years ago. My husband
and I are Sri Lankans. I wish to return to Sri Lanka with our baby. Can
my baby get Sri Lankan citizenship?
Lochana, Kandy
Answer: The answer is ‘No’. If your child was born in a foreign
country, he/she is not entitled to Sri Lankan Citizenship. If your child
needs Sri Lankan Citizenship, you have to apply for a Citizenship
Certificate through the Immigration and Emigration Department
Citizenship Unit in Sri Lanka. In this connection you have to inform the
Sri Lankan Embassy in Italy that you are a Sri Lankan and your child was
born in Italy.
Then they will issue you with a Citizenship Certificate. The
following documents will be required to obtain Sri Lankan Citizenship
Certificate:
(a) Birth Certificate issued by the Sri Lankan Embassy/Consular in
Italy.
(b) Applicant’s Birth Certificate (mother/father)
(c) Marriage Certificate of parents.
(d) Parents’ Passport at the time of birth of the child.
(e) Declaration of the applicant stating that she has no Citizenship
of any other country except Sri Lanka.
(f) Charges payable. If the Citizenship Certificate is applied within
one year from the date of birth of the child, the fee payable is Rs
5,000. For delay of every one year Rs 500. Citizenship Certificate could
be applied only up to the age of 21 years of the child.
We would therefore advise you to apply for your child’s Citizenship
within one year from the date of birth of your child.
Probable age certificate
Question: Is it legal requirement to prepare a probable age
certificate to children who are in the Children’s Home? We know some
times when they reach the age of 18, they have to leave the Children’s
Home without having any thing. Please advise us.
Tamara, Anuradapura
Answer: Yes. Under the Birth and Registration Ordinance and
Circulars issued by the Registrar General’s Department the Children’s
Home can take initiate actions to prepare probable age certificate to
children who don’t have Birth Certificates.
The ICCPR Act No. 56 of 2007 - Section 5 states -
“Every child has the right to have his or her birth registered and to
have a name for his or her date of birth”.
Therefore, if the Children’s Home has neglected their duty, the child
can seek relief under this Act. The procedure is as follows:
Certificates of probable age are issued to children under 14 years of
age whose birth cannot be registered.
l Certificates of probable age are issued to -
i. Resident children of a Children’s Home approved by the government.
ii. Children who are under the guardianship of persons other than
children’s homes approved by the government.
l Documents to be submitted by the resident children of a children’s
home approved by the government.
i. Affidavit of the Matron of the Children’s Home.
ii. Medical certificate issued by a government medical officer
determining the age of the child.
iii. Other documents containing information of the child (if any) 4.
Documents to be submitted by the children other than residents of a
Children’s Home approved by the government together with the
declaration:
i. Affidavit of the guardian
ii. Documents in proof of the guardianship of the guardians regarding
the child concerned.
* Grama Niladhari Certificate or
* Certificate of the probation and Childcare Service Officer
* Certificate from the Social Services Department
* Certificate issued by the Inspector of Police
iii. Medical Certificate issued by a government medical officer
determining the age of the child.
iv. Health Development Record.
v. Copy of the school admission register if the child attends school.
After preparing the above mentioned documents, the Head of the
Children’s Home has to contact the Additional District Registrar of the
Divisional Secretariat of the area.
If you need further help you can contact the Legal Aid Commission
Centre closer to your area.
Copy of marriage certificate
Question: I got married in October 20, 2001. Please let me
know how to obtain a copy of my Marriage Certificate.
Risva, Dematagoda
Answer: If you know the date and year of marriage, you could
visit the Divisional Secretariat’s Office, where you got married
(Births/Deaths and Marriage Registrar) and obtain Form 121.
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 is 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. |
