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.

Justice Nissanka Udalagama Director General of Legal Aid Commission is addressing the Apprenticeship programme organized by the Legal Aid Commission held at the Colombo Law College Auditorium recently.

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 violations and conflict related cases. In recognition of this gap in the 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, Director General - Legal Aid Commission, Chairman – Presidential Commission appointed in 2007 to Inquire into Serious Violations of Human Rights

Questions and Answers

Registration of logo

Question: I hope to start a business in ready made garments and open a dress boutique closer to the area where I am residing. I have already installed my name board with the logo in my business premises. My business has been registered under the Companies Act No.7 of 2007. My question is whether I have to register the logo as well? Please advice.

- M.Gamage, Kaduwela.

Answer: You have to visit the National Intellectual Property Office (NIPO) and do a public search with regard to your logo. Thereafter you have to get the application form from the said Office and duly fill the same. If your logo is a coloured one, you have to submit six colour print outs or logos affixed in A4 papers.

If you decide to register your logo under the Company name you have to pay Rs 3,450 as registration fees. If you decide to register it as individual you have to pay Rs.1, 150 as registration fees.

Please note that if you intend to register your logo under the Company name, you have to submit the photocopy of the Company Registration Certificate. The address of the NIPO is given below.

National Intellectual Property Office of Sri Lanka Samagam Medura”, 3rd Floor, 400, D.R. Wijewardene Mawatha,, Colombo 10.

Telephone:+94 11 268 9368
Fax:+94 11 268 9367
E-mail: [email protected]

Insurance Ombudsman

Question: I am the Manager of a company. My personal driver provided by the company met with an accident while performing his official duties. Is the company liable to pay damages for the victims?

- Sent by Email

Answer: Yes, you can be held liable under vicarious liability. The driver of the vehicle who is liable for the accident may always not be the registered owner. He may be an employee within the course of employment.

The employer’s or master’s liability for the negligent acts of his servants is an English Law principle. However, the negligent act of the employee should be within the course of employment.

The particular act is within the course of employment or not is a question of fact.

When the evidence is led, identification of the registered owner and the driver is an essential requirement.

Sometimes it is to be noted that the vehicles are hired to various companies and people by the registered owners. In such a situation, the course of employment of the driver is very important.

There are instances where some acts are forbidden by employer, however, if the employee has independent authority to take decisions in the course of employment, the master is liable, even if the particular act is expressly forbidden.

Enforcement of order

Question: My husband drinks with his friends daily. After coming home he quarrels with me. He also disturbs the children. I filed a Domestic Violence case against him and obtained a protection order. Please let me know as to what remedial action I could take, if he does not comply with the interim order.

- Chaturica, Mahara

Answer: Under the Domestic violence Act No 34 of 2005, the legal remedy available to you is that he could be punished under the law if he does not comply with the order given by court.

Section 20 of the Domestic Violence Act states -

“Where respondent against whom an Interim order or a protection Order, as the case may be, has been issued and has failed to comply with such order, such respondent shall be guilty of an offence and shall be liable on conviction after summary trial before a Magistrate to a fine not exceeding ten thousand rupees or to imprisonment of either description for a term exceeding one year or to both such fine and imprisonment”.

Aggrieved person

Question: Kindly let me know whether “an aggrieved person” can be covered under the Prevention of Domestic Violence Act No.34 of 2005.

- Chatura, Kalutara

Answer: Under the Prevention of Domestic Violence Act No.34 of 2005, “an aggrieved person” is defined as follows:- the father, mother, grandfather, grandmother, stepfather, stepmother. the son, daughter, grandson, granddaughter, stepson, stepdaughter, the brother, sister, half-brother, half-sister, step-brother, step-sister; siblings of a parent; the child of a sibling; child of a sibling of a parent

Law protecting old people

Question: I am 80 years of age. My children are ill treating me. Please advice me. Are there any laws to safeguard old people like myself ?

- Munidasa, Kuruwita

Answer: 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. 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.

Dividing deceased’s property under common law

Question: My husband and I are almost 65 years old .We have property which has not been written to any children. Could you kindly explain how a deceased’s property is divided under the Common Law?

- Charika, Mahara

Answer: Under the Common Law a deceased’s property could be divided in the following manner:-

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/her children.

If they have no children ½ to the spouse and the other ½ to parents of the deceased in equal shares.

If parents are not living, 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.

National Elders’ Council

Question: Please let me know how legal aid commission support to the National Elders’ Council ?

- Samaratunga, E mail

Answer: The Legal Aid Commission through its Elders’ Desk has supported the National Elders’ Council work by providing free legal advice to the elders and supporting district levels meetings of the Elders Societies. The societies had taken steps to address problems of elders such as loneliness and develop creative facets and engage in the service to others, specially the frail elders. Elders’ Societies traverse across ethnic and religious divides thus helping to develop a common elderly consciousness.

Elders’ Identity Card

Question: Please let me know the legal recognition of Elders’ Identity Card??

- Senanayaka, Borella

Answer: Another important amendment in the Elders law Act No 09 of 2000 law is legal recognition of “Elders’ Identity Card”. Ministry of Social Services started issuing Elders’ Identity card for those over 60 years of age.

The card intended to facilitate easy services to the elderly and obtain discounts in geriatric medicine and receive increased interest income from savings are essential to our aging society. The new amendment legalizes the Elders’ identity card and provides for the Minister to make rules as to how the card could benefit the elders. Elders’ rights are human rights, the new amendment definitely help at protecting elders’ human rights.

Donating body to Medical Faculty

Question: I kindly request you to advise me as to how I should donate my body in the event of my death, to the Medical Faculty for the benefit of the medical students.

Jayatunga, Kadana

Answer: You can write a letter to the Medical Faculty, Head of the Anatomy Department giving your consent to donate your body to the said Department. Then they will issue the necessary instructions to you. Since you are residing in Colombo, you can donate your body to the Medical Faculty of Colombo.

If you are hospitalized, then you can write a letter with your signature giving your consent to donate your body to the Anatomy Department. This letter should be handed over to the Judicial Medical Officer of the relevant hospital and you have to inform your next of kin. Immediately on your death, your next of kin should inform the relevant Anatomy Department mentioned in your letter within 24 hours. If your next of kin wishes to take your body for a few hours, according to the instructions given by the Anatomy Department, you have to inform the Funeral Undertakers and they will undertake to do a light embalm. If your next of kin wishes to give away the body direct to the Medical Faculty, then there is no necessity to do an embalm.

Medical Faculty, Colombo.
Tel.No.2695300 – Ext.119 120
Medical Faculty, Ragama
Tel.No.2956188

Copy of Birth Certificate

Question: My father was married in France and registered in that country. However, he got the Sri Lankan registration of his marriage through the Embassy in France .

My father is 50 years old and his Marriage Certificate is damaged. I wish to know whether he could apply for a copy of his marriage Certificate. Your reply is greatly appreciated.

- G. Herath, Negombo

Answer : Yes, your father can obtain a copy of his Marriage Certificate. He should go to the Central Record Room, Maligawatte, Colombo 10. They will issue an application form to him where he has to complete it and hand it over to them. On receipt of the completed application form, the Central Record Room will issue a copy of the Marriage Certificate immediately. If you need further details, you can call the Central Record Room on Telephone No.011 2329773

Obtaining Identity Card

Question: My mother has lost her Identity Card. Please let me know how to get my Mother’s Identity Card?

- Harendra, Kadawatha

Answer: If you want to obtain a new Identity Card for your mother, you have to first make a complaint to the police station and get the certified copy of that complaint. Thereafter, you have to get an application form from your Grama Niladari 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 mother has lost her Birth Certificate you have to submit an affidavit to prove the date of birth of your mother.

The Registrar of Person has ‘One Day Service’ to issue Identity Card on a fee of Rs.500. Otherwise, you can get your mother’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.