Legal Aid Commission

Protection of Victims of Crime

Section 260 of the Criminal Procedure code and Section 41 of the Judicature Act provide for legal representation to victims of crime. Unfortunately however Courts have been reluctant to allow intervention on their behalf even though a victim is invariably a witness to the crime perpetrated on that victim.

In the absence of intervention on their behalf in a case where the victim is the most affected, the latter is only a mere witness, to be released after his testimony. With the increase in crime and the inability of the prosecutors to attain a reasonable rate of successful convictions, the development of an effective victim protection measure is indeed timely.

No lesser a person than a former Chief Justice a few years ago stated that the rate of successful prosecutions stood as low as four to five percent.

In November 1985, the United Nations adopted the Declaration of Basic Principles of Justice for Victims of Crime, calling upon member states to give effect to the provisions of the declaration. Although a large number of countries had responded positively, Sri Lanka appears to have delayed enacting victim protection legislation.

In the absence of a governmental incentive the Legal Aid Commission established the National Centre for Victims of Crime on May 17, 2002 with the primary objective of providing legal representation to victims of crime and their families.

In November 2007, under section 2 of the Commissions of Inquiry Act No.17 of 1948, a Presidential Commission of Inquiry was appointed to investigate and inquire into alleged serious violations of human rights arising since August 1, 2005.

A unique feature of the Commission of Inquiry was the invitation, by the President to a group of eleven international eminent persons to observe the proceedings in order to ensure that proceedings were conducted in accordance with basic international standards and norms. One of the lapses highlighted by the group of eminent persons was the lack of an effective victim and witness protection programme.

The commission was also in agreement with the complaint as relevant victims and witnesses of such alleged violations failed to turn up for inquiries.

The Commission on its part brought to the notice of the authorities the need for legislation and subsequently, a Draft Bill for the Protection of Victims of Crime and Witnesses was presented to parliament on June 6, 2008. Regretfully, parliament has not approved same up to date.

The commission, however with limited financial resources took steps to provide some degree of protection and assistance to the victims and witnesses by meeting the latters travelling expenses, per diem expenses, providing safe houses, video conferencing facilities etc. strictly in accordance with the provisions of the aforesaid Bill before Parliament.

As the Bill referred to above lapsed in parliament Sri Lanka has no law or established scheme for victim or witnesses protection.

This is a serious problem for the criminal justice system as a whole but especially acute in the case of human rights violation and conflict related cases.

In recognition of this gap in a victims and witnesses protection system, the GOSL is said to be drafting national legislation for the protection of victims and witnesses.

It is hoped that the ‘pilot’ or prototype for effecting measures to protect victims and witnesses of crime initiated by the Commission of Inquiry would be incorporated into a national scheme.

- Justice Nissanka Udalagama

Former Judge of Supreme Court, Senior Adviser - Legal Aid Commission, Chairman - Presidential Commission appointed in 2007 to Inquire into Serious Violations of Human Rights

Colloquium on Protection for Victims of Crime

The Legal Aid Commission of Sri Lanka organized a colloquium on Protection for Victims of Crime on September 17 at the Sri Lanka Foundation Auditorium with the participation of 200 police officers in Colombo District (IP and above) and media representatives. The colloquium was focused on proposed legislation on Protection to Victims and Witnesses of Crime.

The keynote speaker at the colloquium was Attorney General Palitha Fernando PC. Legal Aid Commission Chairman S.S. Wijeratne, Justice Hector S. Yapa, Justice Nissanka Udalagama, Duputy Solicitor General Sarath Jayamanna, Deputy Inspector General of Police Gamini Dissanayake (Legal Division and HR) and Upali Gooneratne PC delivered lectures at the colloquium.

A panel discussion was also held at the end of the colloquium.
This programme was funded by the UNDP Equal Access to Justice.

[Questions and Answers]

Registration of Deaths (Temporary Provisions)

Question: I have already applied for a Death Certificate of my brother who is missing for six years in Sri lanka. District Registrar refused to issue a Certificate of Death to me. What shall I do?

- Chandra,
Polonnaruwa

Answer: According to the Registration of Deaths (Temporary Provisions) Act No 19 of 2010, you can appeal to the Registrar-General against such refusal within one month of the notification. According to the act section 7, an applicant who is dissatisfied with the decision of the District Registrar refusing to issue a Certificate of Death to him under section 6, or a person who has objected under section 5 to the issue of a Certificate of Death under this Act and who is dissatisfied with the decision of the District Registrar to issue such Certificate, may within one month of the notification of such refusal or issue, as the case may be, appeal to the Registrar-General against such refusal or issue, as the case may be.

The Registrar-General may after review of the material before him, either affirm the decision of the District Registrar, or direct the District Registrar to issue a Certificate under section 6, or disallow the report issued by that District Registrar under section 6, as the case may be.

Registration of Birth

Question: I want to know whether it is a legal right of a child to register his or her birth?

- Samarasekara,
Kandy

Answer: Yes, under the birth and death registration ordinance every child has a legal right to register his/her birth. Under the International Covenant on Civil and Political Rights (ICCPR) Act, No. 56 of 2007, a child has a legal right to register his birth. Section 5 of the Act is relevant in this regard. Under section 6 and 7 of the Act, you also have a legal right to access the public services to register your child’s Birth.

If they failed to do so you can file an action against the public officers under this Act. Further you can seek the help of the Legal Aid Commission in your area to register your child’s birth. For your reference the ICCPR Act No56 of 2007 section 5 and section 6 and 7 states as follows,

5. (1) Every child has the right to-
(a) have his or her birth registered and to have a name from his or her date of birth;
(b) acquire nationality;
(c) be protected from maltreatment, neglect, abuse or degradation; and
(d) have legal assistance provided by the State at State’s expense in criminal proceedings affecting the child, if substantial injustice would otherwise result.

Rights of a child

(2) In all matters concerning children, whether undertaken by public or private social welfare institutions, courts, administrative authorities or legislative bodies, the best interest of the child shall be of paramount importance.

Access to public services

6. (1) Every citizen shall have the right and the opportunity to-

(a) take part in the conduct of public affairs, either directly or through any representative; and
(b) have access to services provided to the public by the State.

(2) For the purpose of this section, the expression ‘conduct of public affairs’ shall not include the conduct of any affairs which are entrusted exclusively to any particular authority, by or under any written law.

(1) A person shall be entitled to apply by way of petition addressed to the High Court, against the infringement or imminent infringement by executive or administrative action, of any human right to which such person is entitled to under sections 2, 4, 5 and 6 of this Act and plead for such relief or redress as shall be prayed for in such petition.

What is pedigree

Question: I have purchased a block of property and I hope to construct a house in the said property. I have already applied for a loan from a private bank. When I visited the bank to inquire regarding my loan application, they informed me that they want a pedigree in order to expedite my loan Application. Please let me know what is pedigree and how does it help the bank to process loan applications.

- Sadun,
Matara

Answer: A pedigree is a claim in which the relevant details of an abstract of title are summarized.

As in the abstract of title, the title of a property from the first owner to the present owner has to be started in the pedigree, along with details as, the name of the transferor or transferee, nature and the number of a deed, date of attestation and the name of the Notary.

Banks and other financial institutions require a title report along with the 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 ½ of the property would be granted to the spouse and the other ½ to be equally divided among his children.

If they haven’t any children ½ to the spouse and the other ½ 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 ½ of ½ would be granted to the living parent and other ½ of ½ would be granted to brothers and sisters of the deceased equally.

If the deceased is a divorcee ½ goes to the children if children are alive and balance goes to the parents equally or if one parent is alive ½ of ½ goes to the living parent and balance goes to the brothers and sisters equally.

Employment in Middle East

Question: My best friend has decided to go to Middle East. She has found employment through an agent. Please let me know what kind of legal advice that I have to give her.

- Kanchana,
Mhara

Answer: If your friend has found employment through a local agent, she has to check on the following.

1. Is her agent licensed under the Sri Lanka Bureau of Foreign Employment (SLBFE)?

2. Is the license valid till the time of recruitment?
3. Has the agent obtained the necessary approvals from the SLBFE?
4. Is the First Approval valid till the time of recruitment?

If the above conditions are fulfilled, she can handover the passport and necessary documents as specified by the agent.

The passport should be valid for a period of at least two years from the intended date of registration.

Thereafter, she must pay the registration fee specified by the SLBFE.

This however, does not include the administration cost of agents. If she is migrating to a Middle Eastern country, she must only pay the registration fee specified by the Sri Lanka Bureau of Foreign Employment

1. She may be required to obtain training if necessary
2. She must complete and possess a copy of the job agreement
3. She must undergo a medical examination and obtain necessary medical clearance

4. Her agent must obtain the necessary approvals from the SLBFE and hand over the following documents to her.

The passport endorsed with the Sri Lanka Bureau of Foreign Employment registration stamp, Valid visa, Air ticket, Job Agreement, Customer copy of the bank slip, Insurance certificate

Further she must remember the following facts that while she is working abroad.

If she face a problem;

1. She can contact the Sri Lankan Embassy or Consulate of that country.
2. Ask a relative or friend to make a complaint in the Conciliation Division, Foreign Relations
3. Division or Sociologist Division of the Sri Lanka Bureau of Foreign Employment (SLBFE)

4. She must remember to protect her self against sexually transmitted disease like HIV / AIDS

5. On completion of contract, she will be able to purchase things from her earnings and bring them back home.
6. Maintain her NRFC account, which would give her more loan facilities.

7. She must also remember to inform the authorities mentioned above, if she has any problem with the non-payment of salary or if her sponsor had violated her contract while she is working abroad.

Insurance Claims, Death Claims

Question: Can a heir or an immediate relative of a migrant worker, who is dead as a resuilt of an unfortunate event of that country, apply for compensation as death claim from the Sri Lankan Bureau of Foreign Employment?

- Sanjeewika,
Kadawatha

Answer: Yes, in an unfortunate event of a death of a migrant worker, the heir or immediate relative of the deceased can apply for compensation from the Sri Lanka Bureau of Foreign Employment (SLBFE) in accordance with the insurance policy agreed upon prior to their departure.

Given below is the procedure to be followed.

* The family of the deceased should contact the Consular Affairs Division of the Ministry of Foreign Affairs to bring down the body and obtain relevant documents

* Once the body has been received, you can report the matter to the Foreign Relations Division and obtain a grant of Rs. 10,000 being funeral expenses, by submitting the following documents;

Documents issued by the Ministry of Foreign Affairs to prove the death of the deceased

Documents to prove the relationship of the heir of the deceased-

E.g: A Grama Sevaka certificate

* After the funeral and related rituals have been completed, the heir of the deceased could apply for compensation by reporting about the matter to the Welfare Division of the SLBFE

The beneficiaries of this grant would be as follows:

1. If the deceased is married - Spouse, Children
2. If the deceased is married and has no children – Spouse, Parents of the deceased
3. If the deceased is not married - Parents
4. If the deceased is not married and one parent is living -Parent, Brothers and Sisters
5. If the deceased is not married and both parents are dead - Brothers and Sisters

However, the heir of the compensation would be decided by the Welfare Division after ascertaining the authenticity of the documents. The claimants would be the legal heirs and not nominees or dependants. Married brothers and sisters cannot apply for death claims. The following basic documents should be submitted to claim for deaths;

1. Death Certificate of the deceased
2. Health reports and documents issued by the country of employment
3. Embassy clearance issued by the Sri Lankan mission of the country of employment
4. Cargo receipts issued by the carrier
5. Grama Sevaka’s confirmation letter
6. The residence of the deceased and heirs
7. The relationships between the deceased and the heirs

8. Original passport:

In addition to this the following documents are also required;

9. If the deceased is married; Marriage certificate of deceased, Birth certificates of children

10. If unmarried; Birth certificate of the deceased, National Identity Card of the parents, Marriage certificate of parents

Postal Identity Card

Question: Please let me know what conditions are to be fulfilled to apply for a postal identity card.

- Sadunika,
Panadura

Answer: An Identity Card is issued by the Postmaster General to assist the holder to establish his identity to transact Post Office business. It gives a brief description of the holder and bears his signature. A photograph of the holder autographed by him and authenticated by the GPO date-stamp is gummed on to the card.

Identity Cards are intended for the convenience of tourists, commercial travellers and other members of the public generally. Postal ID is still a legally valid document and is acceptable for any financial transaction, identification etc., and if anyone declines to accept it as an ID, please inform the Postmaster General immediately.

Identity Cards are issued to persons who fulfil the following conditions:-

1. The applicant must be able to sign his or her name in Sinhalese, Tamil or English;

2. The applicant must fill in the particulars on the prescribed form, obtainable at any Post Office;

3. Two clear copies of a recent photograph of the applicant (bust only) of the size 8.25 cm’s (3¼”) x 5.72 cm’s (2¼”) must be furnished, and the applicant must sign on the copy affixed to the application and also autograph the duplicate in the presence of the Postmaster. The signature on the photograph attached to the application form should be so inserted as to leave part of it on the body of the form and extending on to the face of the photograph;

4. A fee of Rs. 50.00 must be paid by means of stamps affixed to the application form;

5. If the applicant is not known to the Postmaster, two witnesses who must be respectable permanent residents of the area served by the Post Office, and known to the Postmaster, must testify to the identity of the applicant and sign the declaration on the form in the presence of the Postmaster;

6. The application form should be written and signed in the presence of the Postmaster of the Post Office nearest to the applicant’s permanent residence and handed over to him to be forwarded to the Postmaster General ; and

7. Before taking delivery of the identity card the applicant must sign his name on the Identity Card and on the acknowledgment form, in the presence of the Postmaster.

8. The card, if issued, shall be delivered to the applicant through the Post Office at which the application was made.

9. An identity Card shall be valid for a period of five years from the date of issue. Where a holder desires the continuation of the facility thereafter he shall make a fresh application producing his lapsed Identity Card and two clear copies of a recent photograph and the prescribed fee. Duplicates will not be issued in any circumstances.

10. Notwithstanding the fact that a person has an Identity Card, a Postmaster may make such further inquiries as he may consider necessary to establish the identity of a holder and demand additional corroborative evidence of such identity.

11. In the event of the loss or destruction of an Identity Card the holder must report the loss to the Postmaster General immediately. No duplicate, for an Identity Card lost or destroyed, will be issued in any circumstances and the holder shall not be entitled to any rebate for any unexpired period of the Identity Card.

12. The Postmaster General reserves the right to recall any Identity Card for examination and to confiscate it in case of improper use, erasures, defacement or mutilation.

13. Neither the Postmaster General nor any officer of the Post Office shall be held responsible for any consequences arising out of the loss or misuse of an Identity Card.

Duplicates of results sheets

Question: Can I get duplicates of result sheets of G.C.E (Ord. Level) and G.C.E. (Adv. Level) from the Department of Examinations in Sri Lanka?

- Duminda,
Kohuwala

Answer: Yes, if you are only a private candidate of such exams, you can obtain the duplicates of results sheets of G.C.E (Ord. Level) and G.C.E. (Adv. Level) from the Department of Examinations in Sri Lanka. Please follow the instructions given below.

1. Duplicates of results sheets of G.C.E (Ord. Level) and G.C.E. (Adv. Level) will be issued to private candidates only by this department.

2. The Department of Examinations will not issue results sheets of such examinations to school students and they should obtain their certificates, from the respective schools for local use.

3. A fee of Rs.100 will be charged for issuing copies of a results sheet of each sitting of any examination.

4. Payments in this respect should be made to the shroff of the Department of Examinations by means of pay in Voucher, or by money orders obtained in favour of the Commissioner General of Examinations only.

5. Application for obtaining copies of these results sheets should be made on form CT 6.

6. Candidates who do not know their index number should forward duly perfected form CT 4 together with their applications. For this purpose an additional amount of Rs. 100 will be charged

7. If the original receipt in support of payment of money is not forwarded the application may be rejected.

8. Procedure of issuing duplicates of results sheets for local use will take place under the following steps.

Step 1: Applicant to inform the certificates branch his need to obtain the duplicates.

Step 2: Applicant to obtain form C.T.16 from the Certificate Branch and to fill it.

Step 3: Applicant to pay the prescribed fee to the Post Office and obtain a money order or a receipt from the shroff in the Department of Examination in support of the payment

Step 4: Applicant to annex such money order or receipt to the form C.T.16 and to send it to the Department of Examinations.

Step 5: Processing the application and preparation of duplicates by the Department of Examinations

Step 6: Handing over of certificates personally or posting it to the address furnished by applicant.

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[Consumer Affaires Authority]

Question: Please let me know the mechanism adopted by the Consumer Affaires Authority in granting redress to aggrieved consumers.

- Chaturika,
Hanwella

Answer: A written complaint along with supportive documents which relates to the sale of goods or to the provision of service shall be sent to the authority within three months. An inquiry is held into the complaint. After an inquiry the Authority shall order the trader or the manufacturer to pay compensation to the aggrieved party or to replace such goods or to refund the amount paid for such goods or the provision of services.

Complaints should be addressed to Director General of the Authority. Consumer Affaires Authority, CWE Secretariat Building, 27, Vauxhall Street, Colombo 02

Chairman: Tel: 011-2393496 / 239914
Director General: Tel: 011-2302981
General: Tel. 011-2445897 / 2393577 / 2393495
Fax: 011-2399148
Email: [email protected]

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