Legal Aid Commission

Dissenting judicial opinions

Superior Court Judges who delebrate on the laws enacted by Parliament do not always agree on the interpretations. There are unanimous or majority Judgements where all or the majority of Judges on a Bench agree and there are other important Judgements where a minority of a Bench may give a dissenting opinion to that of the Majority Judgement for cogent legal reasons.

Dissenting Judgments if strongly based on law, the dissenting interpretation of the particular law may get approval by a subsequent Bench and may then form part of Judge made law. In India and the United States, the laws of dissent forms an integral and important part of the development of law.

In Sri Lanka, dissenting Judgments are comparatively rare and a scientific or a scholarly study has never been made on the influence of dissenting Judgment on the subsequent development of the law.

There had been important and rare dissents in the Sri Lankan Supreme Court, but they were the exception than the rule. The most important dissenting Judgment recorded recently was on the Constitutionality of the 13th Amendment to the Constitution.

The Sri Lankan Judiciary which was an offshoot of the British Judicial system, due to our colonial traditions had shown little penchant to express dissenting opinions. In England many Senior Judges kept there dissenting opinions private, but the earlier English practice of depositing dissenting Judgments in a separate box never to be published was never practiced during our Judicial history. It is generally accepted by the legal scholars that dissenting and separate Judgments display the democratic pluralistic and mental strength of the Judicial process. In England the famous dissent of lord Atkin in Liversidge vs Anderson (1942) where a person is hostile subject or not is a Judicial opinion often cited in scholarly discussions of dissent.

The English Judicial tradition appears to have not paid much importance to the doctrine of dissent. Sri Lankan Judiciary seems to have been influenced by the British traditions.

On the other hand, the US and Indian Superior Courts appear to respect the doctrine of dissent. In the US Supreme Court, Justice Oliver Wendel Holmes, dissented with other Judges in the Supreme Court so often that he came to be known as the “Great dissenter” and with the expiration of time, many of Holmes J. dissents have been adopted by the US Supreme Court.

In India, where the Supreme Court is held in high International esteem, Justice Patanjali Sastri remarked “The Court is thus the Constitutional Protector and guarantor of fundamental rights” has followed a robust Judicial path of independence and integrity.

Indian Apex Judiciary also Produced a “Great Dissenter” Judge in Justice Fazl Ali.

Commencing with the celebrated case of A K Gopalan Vs. State of India (AIR 1950) where the dissenting Opinion of Justice Fazl Ali who interpreted the words” Personal Liberties in the Indian Constitution to embrace all personal liberties including the free movement in the Country was subsequently accepted by the Indian Supreme Court.

In a second land mark case of Keshavan Vs State of Bombay, Justice Fazl Ali along with Mukherjea, J in a dissenting Judgment held that offences committed prior to the enactment of Indian Constitution was not valid if they now contravene the Constitution.

The dissenting Judgments of Justice Fazl Ali in Gopalan and Kesavan cases were subsequently adopted by the Indian Supreme Court. This happened in 1978 case of Maneka Ghandi Vs. Union of India, where right to life and personal Liberty was recognized as basic human rights.

The 1978 Sri Lankan Constitution deprived the Supreme Court of the authority to examine the legality of Parliamentary enactments Supreme Court power was limited to examine the Constitutionality of Bills, that too if Challenged by Citizen within the narrow time frame work of gazzetting of the Bill and the debate in Parliament. 1978 Constitution enthroned the Executive and Legislation at the expense of the Judiciary. This dichotomy still persists.

- S S Wijeratne

Apsara Memorial Oration 2010

The Legal Empowerment Volunteers (LEV) Project of the Legal Aid Commission (LAC) organized an oration in memory of late Apsara Vithanage on December 8, 2010 at the Law Faculty premises of the University of Colombo.

This event was intended to appreciate the dedicated contribution made by Apsara Vithanage as a young Legal Empowerment volunteer with the LAC Centre at Balapitiya. LAC Chairman S S Wijeratne delivered the Memorial Oration and the Memorial Award was received by Apsara’s father.

‘Legal Empowerment Volunteers Hand Book’ dedicated posthumously to Apsara was launched at the ceremony and the first copy of the book was presented to UNDP E2J Project Program Officer Charuka Samarasekara.

ADT Piyumali was chosen the Best Volunteer of the second LEV Batch for 2008.

Representatives of the UNDP, UNV, VOICE, University students also participated in this event. Professor S T Hettige and Dean of the Faculty of Law N Selvakumar graced the occasion.

The second Apsara Memorial Lecture will be held on December 5, 2011.

Development Legal Aid

Traditional Court based Legal Aid programs still take priority. As Equal Access to Justice is a fundamental right Sri Lanka has taken significant strides in this respect with 63 courts based legal aid centers islandwide. Improvement of outreach of traditional Legal Aid focusing on indigent Sri Lankans continues.

Legal issues relating to broader groups; women, migrant workers, consumers, children, elders, victims of crime, Internaly Displaced Desk, Disabled Persons Desk and victims of human rights. Violation comes within DLA programs Legal Awareness of the poor and the wider target of legal empowerment of the poor to enhance social justice.

Following are the DLA desks at the LAC -

Chairman: S S Wijeratne

Director General: Justice Hector Yapa (Retired Supreme Court Judge)

Consultant: Nelum Gamage

01. Anti-Corruption Desk - Uthpala Adhikari, AAL and Harshani Balaharuwa, AAL.

02. Apprentice Training Program and Bench and Bar Desk - Damayanthi Dissanayake, AAL.

03. Child Rights’ Desk- Mahesha de Silva, AAL and Harshani Balaharuwa AAL.

04. Consumer Protection Desk - Lasanthi Palapathwala, AAL and Kalani Medagoda AAL.

05. Disabled Persons Desk - Kalani A Medagoda, AAL.

06. Elders’ Rights Desk - Piumi Kumari, AAL and Harshani Balaharuwa AAL.

07. Human Rights Bureau - Madeeha Mawoon, AAL.

08. Internally Displaced Persons Desk - R Navodyam AAL.

09. Migrant Workers Desk - Lilanthi Kumari, AAL.

10. Prisons Desk - Justice Hector Yapa (Retired Supreme Court Judge) and Thushari Sakuntala, AAL.

11. Protection of Women’s Rights Desk - Lilanthi Kumari, AAL.

14. Labour and Environment Protection Desk - Chaamila Gunaratne AAL.

15. Psycho- Legal Counseling Unit - Kaushalya Gunawardena.

16. Legal Assistance Training Desk - Y. Wicramasinghe AAL and Chulari Hettiarachchi AAL.

17. Judges Training Unit - Chulari Hettiarachchi AAL and Thushari Sakunthala AAL.

[Questions and Answers]

Birth certificate

Question: I am a 16 year old boy in a family of two children. My sister is 12 years old. Our parents were not married when we were born. One year after the birth of my sister, my parents got married. Although the particulars of my parents are included in my sister’s Birth Certificate, I found that my father’s name and his particulars have not been included in my Birth Certificate. A few years ago my father had a brain operation and as a result of the said operation he became paralyzed. My mother too is sick and not an educated person. I want to know as to how I could include my father’s name in my Birth Certificate

Aruna Mattakkuliya

Answer: According to your letter your parents were not married when you were born and after the birth of your sister, they got married you also say that in your sister’s Birth Certificate they have included your parents’ particulars but they have not included your father’s name in your Birth Certificate.

If the parents’ marriage had been registered after the birth of the children, the Registrar-General has the power to include the parents’ name in the Birth Certificate under birth and registration ordinance.

If your want to amend the Birth Certificate, your have to fill form B 37A issued by the relevant Divisional Secretariat signed by the father together with your Birth Certificate and the Marriage Certificate and hand over the documents to the Divisional Secretariat situated at the place where you were born. If you need any help you can contact head office at the legal aid commission , No 129 high court complex Colombo 12

Passport

Question: I want to apply for a new passport. I am living in Welioya . The place is far away from Colombo. Where can I obtain an Application Form of the pass port ? Where can I submit my passport application? What are the delivery times for All-Countries passport. What is the processing fee for All-Countries Passports.

Jayasekara Welioya

Answer: You can obtain the Application Form from the following places:

1. Head office of the Department of Immigration and Emigration, Colombo.

2. Regional Offices at Kandy, Matara and Anuradhapura.

3. Divisional Secretariat of your area.

4. Overseas Sri Lankan Missions.

5. Download printable versions of the Application Forms here.

1. Head office of the Department of Immigration and Emigration, Colombo.

2. Regional Offices at Kandy, Matara and Anuradhapura.

3. Overseas Sri Lankan Missions.

4. Divisional Secretariat of your area except Colombo Divisional Secretariat.

The delivery times for All-Countries Passport.

Normal Basis - 10 working days.

Urgent Basis - Same day.

What are the processing fees for All-Countries Passport

Normal basis - LKR 2500.

Urgent basis - LKR 7500.

Signing as a guarantor

Question: I am working in a firm. I have been approached by so many to sign as guarantors on their behalf when they obtain loans from various banks.

Could you please let me know the consequences of signing as a guarantor in the case of default by the borrower.

Sadun Panadura

Answer: First of all it is better for you to know who a guarantor is.

A ‘guarantor’ is a person who agrees to repay a loan (with interest) for someone else in case the original borrower defaults on the loan repayments and is no longer able to repay the loan amount to the lender. The guarantor provides a guarantee that the loan amount will be paid by him, if the borrower is unable to do so.

In the case of default by the borrower, the lender sends a letter of demand to the guarantor and then has the right to institute legal action in court against the guarantor for the recovery of the payment of the loan within a reasonable period of time.

The guarantor also becomes liable for all the terms and conditions of a contract with the lender in the same way the borrower was bound.

Trade mark

Question: Please let me know what is trade mark and kind of law relating to trade mark in Sri Lanka.

Chamara Kandy

Answer: According to the Sri Lankan Law - Registration under the Sri Lankan Intellectual Property Act No. 36 of 2003 grants Statutory Protection to Trade and Service Marks.

It must be emphasized that Prior User of the Mark in the Home Country or in Sri Lanka is not a pre-requisite for Registration.

Intellectual Property Associates will assist you to secure Trade and Service Mark rights in Sri Lanka

A Trade Mark is a word, phrase, symbol or design, or combination thereof, which identifies and distinguishes the source of the goods or services of one party from those of others.

A Service Mark is closely related, to a Trade Mark and serves to identify and distinguish the sources of services rather than products.

Certification Marks are used to certify that goods or services of others have certain characteristics.

Collective Marks are used to indicate membership in an organization or to indicate that goods or services are produced or authorized by an organization.

Making the application

An Application for registration of a Trade or Service Mark must be made to the Director-General of Intellectual Property in Colombo, in the Prescribed Form and must contain

A request for the registration of the mark.

The name, address and description of the Applicant, and if he is resident outside Sri Lanka a postal address for service in Sri Lanka

Five copies of a representation of the mark.

The goods or services for which registration is sought under the International Classification.

The prescribed application fee.

Where the Application is filed by an Agent it should be accompanied by a Power of Attorney. This document need not be regalized.

Procedure

All Applications are searched and examined in the order of filing by the National Intellectual Property Office (NIPO) for registering. If acceptable the Application is published in the Government Gazette and left open for a period of three months for public scrutiny and third party Opposition if any. If opposed a hearing will be held at NIPO after the filing of Written Submissions and any available evidence and the fate of the Application would be then determined. If there is no such Opposition filed NIPO will proceed to register the Mark absolutely or subject to any conditions as the Hearings Officer shall deem fit.

If you need any information you can contact to the following address:

Intellectual Property Associates,

No. 28, College Avenue,

Mount Lavinia (Greater Colombo), Sri Lanka.

e-mail: [email protected]

Tel. +94 (0)11 2715862

Fax: +94 (0)11 2732992

Issue of passport in lieu of lost one

Question: Please let me know the procedure for issue of passports in lieu of a passport reportedly lost.

Nethmi Kataragama

Answer: (i) Obtain confirmation from the local Immigration Authorities that the applicant has not obtained citizenship of that country and confirmation of the legal status regarding his/her presence in that country.

(ii) Ascertain the national status of the applicant by reference to documents produced - or from previous records, if available.

(iii) If the travel document required is for return to Sri Lanka, an I.C.O.M./N.M.R.P. should be issued.

(iv) If the applicant’s stay is lawful, or he/she is gainfully employed and is unlikely to be stranded for want of funds, issue a normal passport may be considered.

(v) If the nationality of the applicant is not ascertainable, summon the applicant for an interview and forward his/her application along with the record of findings and recommendation of the Mission to the Controller.

(vi) If the applicant claims that he/she does not remember the number of the passport or NIC, and if only a copy of Birth Certificate is submitted, an interview of the applicant should be held by the officers of the Mission to establish his/her Sri Lankan Identity.

The loss of a passport should be reported to the Controller of Immigration and Emigration, Colombo, who maintains a register of lost passports.

The loss should also be reported to the nearest police authorities with a request that, in the event of recovery, the document be forwarded to the Controller of Immigration and Emigration, Colombo.

Fine for loss of a valid passport (M series passports are considered valid for 10 years from the date of issue): A fine of Rs. 10,000 will be imposed.

Legal assistance

Question: My friend met with an accident one year ago. He has two school going children. The Magistrate’s court case is not finished yet. My friend is a housewife and has no income. I need legal assistance and proper legal advice.

Taruka Ragama

Answer: You can file action in the District Court claiming for damages within two years from the date of the accident. For further legal assistance/advice, you could call over at the Legal Aid Commission, Head Office at No. 129, Hulftsdorp Street, High Court Complex, Colombo 12.

HRC orders

Question: I made a complaint to the Human Rights Commission (HRC). I heard from a friend of mine that HRC orders cannot be implemented. Is this true? Please advice.

Rasin Senarathna Moratuwa

Answer: The answer is ‘Yes’. Even though the Human Rights Commission is empowered to make an order and/or recommendation, there is no mechanism to implement the same.

‘B’ Membership Card

Question: I was employed in a firm for the last two years and thereafter changed my place of employment for better prospects. I would like to know whether I should obtain another ‘B’ Card from my present place of employment.

Further I would like to know as to what should be done if the ‘B’ membership card is misplaced or lost?

Karunarathana Mawanbella

Answer: No. You can hand over the ‘B’ card to your new employer which you obtained from your previous Employer and help him to fill Form ‘G’.

Thereafter your new Employer can send your ‘B’ Card and Form ‘G’ to the Labour Office of the area, which will then mark the new number on your ‘B’ Card and return it to the Employer to be handed over to you.

With regard to your second question, if your ‘B’ Card is either lost or misplaced, please complete a ‘B’ Form and together with a Money Order for Rupee One written in favour of the Commissioner of Labour with Colombo as the paying office, send it to the Deputy Commissioner of Labour (EPF) to PO Box 1725, Colombo.

How to overcome public noise

Question: Loudspeakers are used indiscriminately today for various types of functions and events:

(a) Who is the authority which controls the use of loudspeakers?

(b) Can loudspeakers be put on right throughout the night, etc?

(c) How can a person who is affected by the emission of the unbearable noise obtain relief?

Please advise through your Legal Aid Page.

Rohana Siriwardana Maharagama

Answer: As per your question, it is the police who have power to stop or issue the limits of using loudspeakers. But if the noise is throughout the night, then the police has the power to stop such nuisance. Therefore you can make a complaint to the nearest police station and thereafter file a private nuisance case in the Magistrate’s Court. If the noise is persistent, the relevant Municipal Council, the Chief Public Health Inspector also has the power to intervene in the matter.

Elders problem

Question: I am 70 years old. My daughter forced me to transfer my house and deed in her name in order to obtain a bank loan. After getting the bank loan my daughter now ignores me. She is forcing me to leave the house. I do not have any place to go. I am really helpless. Please help me.

Fernando Marawila

Answer: Under the Protection of Elders Act No 9 of 2000 you can get protection. Under the said Act you can file a case against the children to get maintenance from them through the Maintenance Board. The Maintenance Board will inform the children to pay maintenance to the parents.

If they are not willing to pay maintenance, the Magistrate Court can enforce the order.

The Legal Aid Commission has set up an Elders Desk which handles cases of this nature. Further under the Domestic Violence Act No 34 of 2005 you can seek a protection order against them.

If you need any advice, you can visit our Head Office situated at No 129, Hulftsdorp Street, High Court Complex, Colombo 12.

Lost Identity Card

Question: My servant has lost her Identity Card. She has a photocopy of the same. She stayed with us for over 6 years. Her home town is Badulla.

Please let me know how to get my servant’s Identity Card.

I know through your Legal Aid Page that the original Birth Certificate is necessary to get a new Identity Card. Her name appears in the Electoral List of our Grama Niladari Division?

Chamara Naththandiya

Answer: If you want to obtain a new Identity Card to your servant, 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 to get the new identity card because the date of birth is necessary. Since your servant has lost her Birth Certificate you have to submit an affidavit to prove the date of birth of your servant.

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

If you need any assistance you can visit our Head Office at No 129, Hulftsdorp Street, High Court Complex, Colombo 12.