Legal Aid Commission

Public Interest Litigation in Sri Lanka

Public Interest Law movement which has come to be known as Public Interest litigation in India and in England, is perhaps the most striking innovation in the recent past in the delivery of legal services.

It emerged and popped up as a part of legal aid movement directed towards the protection of the rights of minorities, women, children, physically and mentally challenged people and the poor whose interests the legal system had failed to protect because of access to justice and economic disabilities, at a reasonable time as Delay in Justice is Denial of Justice.

Public Interest Litigation is for the protection of the public interest which is to be used and enforced in a careful manner. Courts have given this power to the public through judicial activism. The concept was originated in India to protect public interest and group rights.

Litigation for group rights is rare in Sri Lanka, though it is abundant in India, United States of America and United Kingdom. One time Chief Justice of India P.N. Bagawathy and one of the Supreme Court Justice V.R. Krishna Iyer who originated the trend in India which made waves on Sri Lanka.

The golden era on Public Interest Litigation in Sri Lanka was in 1980s when the then Bar Association and Legal Aid Commission inaugrated activism when late Neelan Thiruchchelvam with the assistance of former Chief Justice of India, Ford foundation, Professionals in Sri Lanka mooted the concept with the help of legal professionals.

The Legal Aid Commission has been active against violation of fundamental rights and Public Interest Litigation, carefully selecting the genuine cases of public interest.

Currently, Public Interest Litigation in Sri Lanka is implemented via Article 14 of the constitution which defines fundamental rights and Article 126 deals with the enforcement fundamental rights through Supreme Court.

In Sri Lanka there are two fables about Public Interest Litigation. One is that Public Interest Litigation is not possible under our legal framework. Second one is that Public Interest Litigation does not take place in our country. Both these comments are inaccurate and shows the misunderstanding about Public Interest Litigation. Public Interest Litigation can and does take place in a limited manner in our country. Recent jurisprudence by our courts indicates that judges are becoming increasingly receptive to public interest claims.

The case of Bulankulama V Secretary, Ministry of Industrial Development is a significant one. Here a government decision to enter into an agreement with Freeport MacMoran to mine a substantial deposit of rock phosphate in Eppawela in the North Central Province of Sri Lanka was challenged by the petitioners. They claimed that there was an imminent Infringement of their rights to equality and equal protection, their right to freedom of movement, and their right to engage in any occupation, profession, trade, business or enterprise as a result of this government decision.

One of the objections of the respondents was that the application was in the nature of public interest litigation and should be dismissed since the Constitution does not permit this sort of litigation. The Supreme Court rejected this argument. The Court noted that the petitioners were not disqualified from litigating the matter merely because it dealt with the collective rights of the Sri Lankan public, and the rights they claimed were shared with many others.

In Jayantha Adikari Egodawele V Dayananda Dissanayake, Commissioner of Elections, the petitioners did not complain that their right to vote was infringed. Rather their complaint was that the rights of others to vote were infringed.

They were given standing to maintain their application because as the court argued the infringement of another’s right to vote affects us all. There have been other cases where the Supreme Court has taken a sympathetic view of standing allowing claims even where the petitioner shares the interest with others. Some of the examples are as follows Ansalin Fernando V Sarath Perera, Somawathie V Weerasinghe, Ranawaka V The IGP and etc.

So, it is clear that Public Interest Litigation takes a vital part in our litigation system and also it makes the legal system accessible to everybody in the delivery of justice and administration of justice. - Ealilmolle Rajagulendra

[Questions and Answers]

Marriage Certificate

Question: My husband took all our original documents with him including the Marriage and Birth Certificates of the children . Now he is trying to file for divorce. I want to get a copy of my Marriage Certificate. Please let me know as a wife, how can I apply for a certified copy of the Marriage Certificate? Could you kindly let me know the correct procedure?

Sadani,
Mahawewa

Answer: As a wife you can apply for a certified copy of the Marriage Certificate. 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.

In your case, you have to go to the Divisional Secretariat’s Office where you got married.

The duly completed Form 121 should be submitted together with noncancelled 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 are 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

Registers not exceeding three months is involved fee for one copy of the certificate 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.

Death Certificate

Question: Please let me know how to obtain a copy of my mother ’s Death Certificate. Your reply would be greatly appreciated.

Taridu,
Mahawewa

Answer: You can obtain a copy of your mothers’s Death Certificate by following the steps given below:-

Go to the Office of the District Secretariat Division where your father died. Ask for an application form. The form you will be given to fill is “B63A” which is meant for application for Death Certificate and/or Search of Registers. Complete the said application form.

Return the duly completed application form to the Registrar. The Registrar will issue you a receipt and will tell you when to come back to collect the copy of your father’s Death Certificate. It may take about two weeks to receive the Death Certificate.

Fundamental Rights application

Question: I am a poor villager. On the last Poya Day, my son was questioned by the Police and was arrested. He was also assaulted very badly by the Police officers who were drunk. Now my son is in remand. Please let me know whether this is a fundamental rights violation and if so where should I go?

- Fernando, sent by Email

Answer: Under the Constitution of the Republic of Sri Lanka, Chapter III Article 13 states as follows:-

No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest.

Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent a court according to procedure established by law, and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law.

Any person charged with an offence shall be entitled to be heard, in person or by an Attorney-at-Law, at a fair trial by a competent court.

No person shall be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law.

The arrest, holding in custody, detention or other deprivation of personal liberty of a person, pending investigation or trial, shall not constitute punishment.

Every person shall be presumed innocent until he is proved guilty; Provided that the burden of proving particular facts may, by law, be placed on an accused person.

No person shall be held guilty of an offence on account of any act or omission which did not, at the time of such act or omission, constitute such an offence, and no penalty shall be imposed for any offence more severe than the penalty in force at the time of such offence was committed.

Nothing in the article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

It shall not be a contravention of the said Article to require the imposition of a minimum penalty for an offence provided that such penalty does not exceed the maximum penalty prescribed for such offence at the time such offence was committed.

The arrest, holding in custody, detention or other deprivation of personal liberty of a person, by reason of a removal order or a deportation order made under the provisions of the Immigration and Emigrants Act or the Indo - Ceylon Agreement (Implementation) Act, or such other law as may be enacted in substitution therefore, shall not be a contravention of this Article.

According to your question, since torture is considered as a fundamental rights violation, you can file fundamental rights action against the Police within 30 days from the date of violation. As you are a poor litigant, you can call over at the Legal Aid Commission, Head Office, 129, Hulftsdorp Street, Colombo 12, Human Rights Bureau or you can send a registered letter direct to the Chief Justice, Superior Courts Complex, Colombo 12. However it is advisable to make a complaint to the ASP, SSP or the DIG.

Filing case to amend Birth Certificate

Question: I use my name as Samath Perera in my Marriage Certificate, in my children’s Birth Certificates and in my letters of employment during the last 10 years. However, in my Birth Certificate my name appears as Sarath Appuhami. I want to change my name in my Birth Certificate. Is it necessary to file a case or is there anyway to resolve this matter without going to courts?

Samath Perera,
Battaramulla

Answer: Yes, you can amend your Birth Certificate. You have to obtain the B9 Application Form from the Divisional Secretary’s Office. The duly filled application form along with an affidavit and the documents (at least three documents) to prove that you are using the name ‘Samath Perera together with your Birth Certificate and hand over these documents to the Registrar of Birth and Deaths, Divisional Secretary’s Office where you were born. The Registrar will thereafter amend ‘Cage 13’ appearing in the Birth Certificate.

Claiming gratuity from earlier company

Question: I worked in a well known Company (it was a group of Companies). I joined another Company but my earlier Company did not accept my resignation. After I joined there my last Company gave me a lot of trouble. I thought I will not be able to claim my gratuity because I resigned, but recently I got to know that I can claim my gratuity if I file a case in the Labour Department because I have worked for 10 years. But my problem is that the Group of Companies is closed but my Boss is still living somewhere in Colombo.

Please give me a clear advice on this matter.

Chanuka,
Kandy

Answer: If your employer has more than 15 employees and your services have not been terminated for misappropriation of funds or causing any damage or loss of property of the Employer, your Employer cannot deprive you of your gratuity under the Payment of Gratuity Act No.12 of 1983.

Since you have already resigned from your employment, you should make a complaint to the Commissioner of Labour to claim your gratuity against your employer.

Adopting child in a legal manner

Question: I got married in 2000 but we have no children. We have now decided to adopt a child. There is an unmarried lady who wishes to give her two months old child to us. Please advice me how to adopt this child in a legal manner.

Shaliyan Fernando,
Galgamuwa

Answer: If you wish to adopt a child, you have to first make an application in the District Court in terms of Adoption Ordinance. The most important fact is that the consent of the natural parents or guardian of the child is required. The child’s consent is required, if the child is over 10 years. The adoption process is solely handled by the Provincial Commissioner of the Department of Probation and Child Care Services. The court must be satisfied that the consent of parents and/or guardian were given with the knowledge of nature and effect of the adoption and also Court must be satisfied that the child benefits from the adoption and that no payment was made to parents or guardian.

Re-registeration of EPF members

Question: What is the EPF Re-registration Project introdused by the Department of Labour (DOL) and the Central Bank of Sri Lanka (CBSL)?What are the benefits have given to the employees and employers under the EPF Re-registration Project?

Sithara

Answer: The Department of Labour (DOL) and the Central Bank of Sri Lanka (CBSL) have launched a joint project to RE-REGISTR all EPF members in order to create a common database by eliminating mismatches on member information at the CBSL, the DOL and the employers. Under this project the following procedures as introdused . Members of the EPF would be re-registered by names as appearing in their National Identity Cards (NIC) and assigning the same NIC numbers as their account numbers.

After the re-registration, the employees’ NIC number will be his/her member number with the EPF regardless of change of employment.

Members’ prior employment account/accounts will be amalgamated to the newly created member account number (NIC Number)

Members’ thumb print would be obtained electronically and linked to the member’s account The benefits to the employees and employers under the Reregistration

Maintenance case

Question : I married a rich lady. We have two children. But My wife ignores me and neglects to maintain me and my children. I have no income. I have now decided to file a maintenance case. Can I do it? However I am unable to do so because the Marriage Certificate is under the custody of my wife, I want to know whether as a husband I could file a maintenance case without the Marriage Certificate. Your early reply would be greatly appreciated.

George,
Colombo

Answer: According to the Maintenance Act No 37 of the 1999, As a husband you can file a maintenance case on behalf of you and your children. against your wife. If you are keen to file a maintenance case, you must first obtain a certified copy of the Marriage Certificate. Without the Marriage Certificate, you are unable to prove that you are married. If you know the date and place of marriage, you can apply for a certified copy of your Marriage Certificate from the Divisional Secretary’s Office where your marriage took place. If you want to ask maintenance of your children you have to submit the children’s birth certificates.

If you need any help you can contact our Legal Aid Centres in islandwide .

National Identity Card for orphan

Question: What is the procedure applicable to obtain a NIC for an orphan, who at a tender age had been abandoned on a public road and found by a Rev. Father and brought up in a registered Roman Catholic Home for orphans?

Nihal,
Negombo.

Answer: In the case of obtaining a NIC, it is required to submit the original Birth Certificate or Probable Birth Certificate. In your case, it is the responsibility of the Home to prepare a Birth Certificate or Probable Age Certificate for the children of the orphanage.

You can obtain a probable Age Certificate from the Registrar, Births/Deaths where the orphan is residing with the help of G.M.O. Once the probable age certificate is obtained, you can thereafter apply for the NIC of the orphan.

If you need any assistance, please call over at the Legal Aid Commission, Head Office situated at No.129, Hulftsdorp Street, High Court Complex, Colombo 12 during weekdays from 8.30 to 4.30 p.m.

Prisons’ Desk

Question: I want to find out whether the Legal Aid Commission has a Special Desk at the Welikada Prison? If so, what are the services the legal aid commission offers to the prisoners?

Kumari,
Nawala

Answer: Yes. The Legal Aid Commission has set up a Special Desk at the Welikada Prison.

The following legal services are rendered:

Appear in bail matters in cases where the remandees have languished in prison for more than one year.

Assist prisoners who are unable to pay fine/bail money imposed by court by making fresh application to court seeking a reduction of fine/bail amount where it is legally possible to do so.

Assist in litigation where the remandees are unable to retain lawyers due to their financial position.

Expedite cases for long term remandees where filing of indictment in High Court in non-bailable offences after closure of non summary trial has got delayed.

Explain to remandees the current legal position regarding their cases.

Provide free legal advice regarding civil and criminal offences.

Provide free counseling services to the prisoners.

Give free legal aid to prisoners.

Arrange awareness programs for the prisoners and the prison officers.

In special circumstances, such as –Women remanded or imprisoned along with their infants.

Women remandees who have dependent children.

Women remanded/accused of minor offences, the Legal Aid Commission provides assistance.

For further details you can contact our co-ordinator, Tushari Sakuntala, AAL at the Head Office at No.129, Hulftsdorp Street, High Court Complex, Colombo 12.

[Social service to public]

Question: Please let me know the services provided by the department of social service to the public?

Kanchana, Kadawatha

Answer: The social services department has provided many services to the public. Each Divisional Secretariat has a social service officer. If you want to get the following services you always can contact him via in your area. The services are states as follows.

Conducting training programmes for the staff and referring them to Outside training programmes

Provision of vocational training for disabled youth, provision of implements of trade for self-employment, referring them for open employment and provision of assistive devices for the disabled persons

Provision of shelter and care for the mentally retarded boys

Issue of special identity cards for the deaf persons

Conducting early intervention programmes through Child Guidance Centre. Conducting awareness programmes for the parents and conducting teacher training programmes

Rehabilitation of drug addicts and detoxified addicts through residential training programmes and home based training programmes and provision of vocational training and referring them to open and self- employment, conducting awareness programmes for school children, community workers and parents

Recommendation of duty waiver for the donations received from abroad to the NGOs registered under the Ministry of Social Services and Social Welfare and also recommendation of approved charity status for the NGOs and recommendation of concessionary rates for water and electricity bills for NGOs.

Provision of financial assistance and other assistance to voluntary organizations