LEGAL AID COMMISSION

President Mahinda Rajapaksa opening the 63rd Legal Aid Commission Centre at Tangalle on November 6. Picture by Chandradasa

Rule of Constitutional Law

Rule of Law is considered one of the eight characteristics of good governance. The other essential ingredients being accountability, transparency, equitable inclusiveness, participatory, responsive to public and consensus oriented effectiveness (Escap). Rule of Law requires equal access to an independent judiciary which is the main mission of Legal Aid Commission. Due to economic and legal awareness deficit, vast majority of the population is deprived of equal access to judicial institutions even though equal protection of law is a Constitutional aphorism.

In respecting the cardinal principle of rule of law, respecting the basic law i.e. The Constitution comes as the core foundation on which derivative legislation should confirm. It is evident that ethics of justice in a Constitutional Society derives inspection from the basic law which in most instances calls for special procedure to amend, add or abrogate.

For example, the 1978 Sri Lankan Constitution enacted with the five-fourth majority in Parliament stipulate that it could be amended only with a two-thirds majority in Parliament and the fundamental provisions only with the approval of a General Referendum. This frigidity imposed by the proportional electoral system which makes it difficult for one palatial party to attain a two third majority has resulted in Constitutional violations rather than amendments. The fate of the 13th and 17th Amendments may have to be viewed in the above context.

In a background of non-compliance with Constitutional provisions, the rule of law is challenged at the apex Constitutional level consequently. The non-compliance with non-apex legislation becomes normal and the rule of law becomes mere rhetoric. The law enforcement agencies become discriminatory and politicized. Hence it is necessary for equal access to justice exponents to continually stress the importance of rule of law.

Rule of Law is the highest legal principle of general application, the corner stone of the modern democratic state. The principle, simply explained means that “decisions should be made by the application of known principles or laws without the intervention of discretion in their applications.” In other words the law should be supreme and should be the exclusive basis of equitable governance of the affairs of men and society.

Rule of Law or Supremacy of Law need to be understood in contradistinction to the rule of man or God. Historically autocratic kings and tyrants sought legitimacy from divine rights to make laws according to individual whims, fancies and idiosyncrasies. This resulted in oppression and inequality sometime resulting in the revolutionary overthrow of the tyrants. The parable relating to King Kekille in Sri Lankan folklore symbolizes the rule of an idiosyncratic man.

Rule of Law or Supremacy of Law is operative both nationally and internationally. The principles of international law, which govern the conduct of inter-state relations, are founded on established conventions and multilateral agreements. The United Nations Organization and its specialized agencies are the primary source of modern international law.

In the municipal law, Rule of law entails number of prerequisites.

They are: -

(1) Separation of Powers,

(2) Independent Judiciary,

(3) Independent and effective law enforcement authority.

In a modern democratic State such as Sri Lanka, the law making powers are entrusted to a body of elected representatives, the Parliament. The executive power is vested in an elected Executive President who is constitutionally above the law and heads her/his Cabinet of Ministers.

The source for both executive and legislative power is founded on the basic law of the land, the Constitution. The interpretation of the Constitution or any other law is the Constitutional responsibility of the independent judiciary who could be impeached for misconduct by the elected Representative. This separation of powers especially that of the Judiciary is a cardinal ingredient of Rule of Law.

The independence of the judiciary envisages that the judges should interpret the law and decide on disputes without fear or favour constantly safeguarding fundamental rights enshrined in the Constitution. In the exercise of judicial functions the judges should not come under extraneous pressure or influence. Any interference in the judiciary will rupture the Rule of Law resulting in loss of confidence in the administration of justice and attendant breakdown in the law and order in the society.

The laws enacted by Parliament and relating interpretations to such laws by the judiciary need to be respected and enforced. This is the responsibility of the law enforcement authorities who like the judges should be neutral and independent to evoke the maximum confidence in society. Law should be the only nexus between the lawmakers, judges and law enforcement officials. Any interference in the equitable enforcement of laws would denigrate the principle of Rule of Law.

The Rule of Law is currently understood as a western legal principle of universal application. However, in ancient South Asian culture the Rule of Law prevailed in a more refined and a humanitarian manner. The supremacy of Dharma or just righteous law was the basis of governance and dispensation of justice in ancient India and Sri Lanka.

The Dharma envisions the full spectrum of universal Human Rights and values. In fact, according to early chronicles a cow filed the first Fundamental Rights case in Sri Lanka during the time of King Elara. The cow sought equality of justice against the Prince whose chariot ran over her calf. This fable is an illustration of how Rule of Law was deeply ingrained in Sri Lankan society even prior to the beginning of Christian Era.

Public Legal Awareness Unit

LAC to celebrate International Days

LAC Developmental Legal Aid Desks are making preparations to create islandwide Awareness Programs through its 62 Centres to celebrate the following UN Days. People are invited to contact LAC to arrange lectures on the importance of these International Days:-

November 20 - Universal Children’s Day

November 25 - International Day for the Elimination of Violence against women.

December 1 - World AIDS Day

December 3 - International Day for Disabled Persons

December 9 - International Anti-Corruption Day

December 10 - Human Rights Day

December 18 - International Migrants Day.

Legal Aid publications

New books are available at the Legal Aid Commission head office, No 129, High Court Complex, Colombo 12. Tel No 0112433618

LAC desks

Chairman - S S Wijeratne

01. Apprentice Training Program and Bench

and Bar Desk.

02. Anti-Corruption Desk.

03. Women and Child Rights’ Desk.

04. Consumer Protection Desk

05. Disabled Persons Desk

06. Elders’ Rights’ Desk

07. Human Rights Bureau

08. Migrant Workers Desk

09. Prisons Desk

10. Civil Documentation Desk

11. Public Legal Awareness Desk

12. Labour and Industrial Relations Desk

13. Protection of Women’s Rights Desk

14. Phycho Legal Desk

Questions and answers

Rules and regulations of passenger service

Question: Can you setout what are the general rules and regulations of a passenger service

C Chamindra, Matale

Answer: Rules and Regulations of a Passenger Service

Passenger Service Permit is given only to buses registered for and holding passenger and third party (pedestrians, other vehicles and property) unlimited insurance.

According to the new regulations, each bus is to be equipped with a fire extinguisher. And when in service and during passenger transport, refuelling at fuel (petrol/diesel) stations is prohibited.

Bus service staff on duty should be clad in proper decent clothing and the behaviour should be of a courteous manner. The staff member should be competent in carrying out his duties and should carry his NTC registration ID on his person.

It is compulsory that at the start of the journey and before departure from the bus station, each passenger should be issued a ticket, and any other passenger entering the bus en-route should be issued a ticket.

It is also required that the ticket issued be of accepted formal standard and should be issued via an electronic device.

Luxury and semi luxury buses should not transport a number of passengers exceeding the available number of seats.

Passengers should not be transported standing. Licences shall be provided only to those adhering to policies and keeping high standards of service.

The following Passenger information should be displayed clearly within the bus:

* Bus fare

* Time of start of journey

* Time expected to near destination

* NTC Registration numbers of the bus driver and conductor

* The number of the Bus

* A clock in proper working order

The front and back of the bus should hold only authorized display material. Material that would obstruct, endanger or hinder the comfort of passengers as well as those on the road, should not be displayed or affixed to the bus.

Therefore, any ornamental material displayed via electronic circuits or any other unauthorized decorations should not adorn the inside of the bus. Only a radio device can be used within the bus as audio equipment and at a level that would not disturb or upset comfort levels of the passengers. The NTC has put into effect many actions to make certain that the new regulations are followed.

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Aggrieved person

Question: Kindly let me know who is “an aggrieved person” under the Prevention of Domestic Violence Act No. 34 of 2005. Can the Legal Aid Commission appear on behalf of an aggrieved person?

Minon, Mahara

Answer: Under the Prevention of Domestic Violence Act No. 34 of 2005, “an aggrieved person” is defined as follows:-

(i) the father, mother, grandfather, grandmother, stepfather, stepmother.

(ii) the son, daughter, grandson, granddaughter, stepson, stepdaughter.

(iii) the brother, sister, half-brother, half-sister, step-brother, step-sister;

(iv) siblings of a parent;

(v) the child of a sibling;

(vi) child of a sibling of a parent

We are giving legal aid for “an aggrieved person” under the prevention of domestic violence act.

Law to protect old people

Question: I am a retired person with three sons. My children are neglecting me. Are there any laws to safeguard old people like myself? Can I receive some maintenance from my sons?

Karunadasa, Waga

Answer: Yes, Elders Law No.9 of 2000 has provision to safeguard and protect elderly persons like yourself. Under this law you can ask for maintenance from your children.

You can write to the Chairman, Elders Claims Board, Elders Secretariat, No 150A, LHP Buildings Nawala Road, Nugegoda. If you need any assistance, kindly call over to our Head Office which has set up an Elders’ Unit specially to deserving people like you.

Mediation Board

Question: Can the police refer disputes to the Mediation Board?

Ridma, Haputale

Answer: Yes, The Police can 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.

There are other 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 Court may refer your case to the Mediation Board if both parties agree to have it so referred. This is permitted under the Law.

Obtaining lost Identity Card

Question: I lost my Identity Card. I have a photocopy of the same. Please let me know how to get my Identity Card back?

Kumudu, Panadura

Answer: If you want to obtain a new Identity Card you have to first make a complaint to the police station and get the certified copy of that complaint.

Thereafter, you have to meet your Grama Niladari and get an Application Form and have the form duly completed.

After preparing all the documents you have to submit five identity card size (coloured photographs) and the photo copy of the identity card.

It is necessary to submit the original Birth Certificate

The Registrar of Persons has ‘One Day Service’ to issue Identity Card on a fee of Rs 500. Otherwise you can get your Identity Card from the Grama Sevaka through the normal procedure which will take at least one month.

Medical leave

Question: I am working as HRM in a Private Limited Company with 25 employees. Please let me know how many medical leave is available per annum. Also please let me know for employees to get annual or casual leave, how many days notice should they give to the HRM.

Chamara, Kandy

Answer: The Law does not make any provision for medical leave.

The law does not stipulate any period of notice for availing of casual or annual leave. Casual leave can be availed of any time depending on the circumstances for which leave is required.

Annual leave is availed of by mutual agreement with the Employer.

Marriage in Sri Lanka

Question: What is the minimum age of Marriage in Sri Lanka.

Mahan, Moratuwa

Answer: Under the general law and the Kandyan law, the minimum age of marriage is now 18 years for both males and females.

Furthermore under the provisions of the penal code in Sri Lanka, sexual intercourse with a girl who is under the age of 16, with or without her consent amounts to the offence of rape (section 363 (e) of the penal code). The age of consent has been raised from 12 to 16 by an amendment to the penal code in 1995 (Penal code Amendment Act No 22 of 1995) However, The above amendment recognized that sexual intercourse with a person’s wife who is below the age of 16 but above the age of 12 will not be considered as rape provided the parties are not judicially separated (section 363 (e).

This concession was made on amount of the low age of marriage in Muslims. But the question arose whether sexual intercourse with a girl below age of 12, even though she is the wife of another man would amount to rape. There is no minimum age of marriage for Muslims in Sri Lanka.

Muslim girls who are below 12 years of age shall not be registered, unless the quazi has authorized the registration after an investigation.

Copy of marriage certificate

Question: I wish to get a copy of my Marriage Certificate. We are Kandyans and we got married on March 20, 1978. Please let me know how to obtain a translation copy of same Marriage Certificate.

Dhara, Peradeniya

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.

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 certificates 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.

Disabled pensioner ill-treated by wife

Question: I am a disabled pensioner. My wife is now ill treating me. She scolds and hits me. I cannot go to the police station as I cannot walk. Please advise me as to where I should go for help.

Premachandra, Kosgama

Answer: Under the Domestic Violence Act No.34 of 2005, you can seek relief to get a protection order against your wife. There are three ways of getting a protection order - i.e. on your own by making an application to the Magistrate’s Court or via making a complaint to the police station or through a lawyer.

According to your question you have not taken any action as you are disabled. So please call 118 or 119 and make a complaint to the police.

On your complaint, the police will visit your place of residence and they will take suitable action to protect and safeguard you. Otherwise you can call the Legal Aid Commission Disabled Unit at the Head Office or any of its Legal Aid Centres islandwide. The Disabled Act No. 28 of 1996 and Disabled Laws and Regulations also have provisions to safeguard disabled persons like you.

Passengers Rights

Question: Please let me know what are the rights of passengers who use public transport in Sri Lanka.

Edirimanna, Kandy

Answer: The National Transport Commission has already recognized the rights of passengers using public transport. The rights are as follows:

A passenger has the right to buy a ticket at the start of his journey, prior to the bus leaving the bus stand. A passenger has the right to obtain a ticket depicting the location of boarding and dismounting, ticket fare, date and number of the bus.

A passenger should be able to travel safely up to the destination to which the fee was paid for.

A passenger should receive a courteous, welcoming service by a well mannered, smartly and decently clad bus conductor and driver.

If a bus is a normal service, children between the ages of 3 and 12 years should be able to travel at half the normal bus rate.

If a luxury bus service, a passenger should enjoy air-conditioning facilities and travel in a service not carrying more than the approved number of passengers. As smoking is forbidden in public transport services, a passenger has the right to travel in a smoke free environment.

A passenger has the right to oppose driving that is of high speed, reckless and dangerous or is breaking road rules.

A passenger has the right to oppose the use of a mobile phone by the driver, whilst driving the bus as well. A passenger has the right to travel in a bus that uses only a radio in terms of audio/visual devices. A passenger has the right to travel in a bus, which if using a radio, should use it to a maximum volume of 80 decibels only. When travelling in the bus which is under authority of the licence department, a passenger should be able to perceive that the doors are closed when the vehicle is on the move.

As the paying passenger is the most valued person in the bus, he/she should receive a deserving polite and friendly service.

A Passenger should be serviced by un-intoxicated service personnel. If a semi-luxury bus, it should not carry a number of passengers of more than the allocated seating.

It should be apparent that the bus service starts and ends as per the time table. The starting time and end time should be displayed inside the bus.