Legal Aid Commission

Natural Justice

In every court hearing we used to hear phrases called ‘natural justice’ and ‘procedural fairness.’ Although we hear these phrases in court hearings and submissions, we fail to realize, that the same mechanisms are used daily in each decision making process. It is a simple and a direct principle that courts follow when any decision turns out to be impartial.

It can be simply defined as the rules of natural justice applied whenever the rights of property or legitimate expectations of an individual are affected by a decision. Decisions, in the context of the management of alleged unsatisfactory performance are administrative decisions, that may clearly affect the rights or legitimate expectations of public service employees and one must therefore apply, rules of natural justice with procedural fairness. Satisfying the rules of natural justice and procedural fairness will vary according to specific circumstances.

There are however important basic principles that apply to every situation and there are three basic principles employers must adhere to, which are commonly known as the, hearing rule; the bias rule and the no evidence rule. The hearing rule demands that a decision maker must give an opportunity to a person whose interests may be adversely affected by their decision, the opportunity to be heard. This means the employee in disciplinary proceedings must be provided with as much detail as possible about the allegations against him and the factual basis for those allegations and be afforded the opportunity to respond.

Where documentary evidence supports allegations, providing it is not subject to privilege - such as legal advice that must generally be provided to the employee in advance of a hearing. This means information is usually provided by the employee, to the decision maker, in the form of oral submissions, documentary evidence and allowing questioning of the employee. It is noted that this aspect of natural justice can be satisfied in a number of ways.

If, for some reason, the employer is not able to question an employee, allegations may be put to the employee in writing and the employee given a reasonable opportunity to respond either orally or in writing. The bias rule is regarding unfairness. It demands that the decision maker should be disinterested or unbiased in the matter to be decided. Justice should not only be done but be seen to be done. If fair minded people would reasonably apprehend that the decision maker has prejudged in the matter, the rule is breached (often referred to as ‘a reasonable apprehension of bias’).

The application of the bias rule is most easily established when the person who is the position of an accuser is also the decision maker or the one who participates in the investigation/decision or gives advice throughout the course of the matter. This is not a hard and fast rule and will depend to a large extent on the circumstances of a matter.

The no evidence rule means, in essence, that the decision that is eventually made must be based on logical evidence (proven on the balance of probabilities - that is, the alleged behaviour is more likely to have occurred than not). It is also important that in making decisions, administrative decision makers: take into account relevant considerations; not to take into account irrelevant considerations; act for a proper purpose; and that the decision is not unreasonable in the sense that no reasonable decision maker could have reached such a decision. An administrative decision maker is under a dual duty; to take account of relevant considerations and not take into account irrelevant ones. What is relevant or irrelevant will depend on the instrument (legislation or policy) conferring the power on the decision maker. It is impossible to be precise and attempt to list all possible relevant and irrelevant considerations.

However, decision makers can be guided by the context of the relevant employment legislation. Matters relevant to employment will almost always be relevant; such as the nature and seriousness of the alleged behaviour under examination; the relative seniority of the employee; the procedure adopted by the employer in investigating and inquiring into such allegations; the evidence gathered in an investigation; the employee’s responses to the allegations and the employee’s employment history. Matters such as the employee’s political beliefs would not only be irrelevant considerations but if considered would amount to discrimination under the relevant legislation. An administrative decision maker/authority may not exercise their power unreasonably.

Courts may interfere with an administrative decision if it was so unreasonable that no reasonable decision maker could have come to it in the circumstances. Proving unreasonableness is a difficult burden. Natural justice and procedural fairness are common law concepts and as such they may be varied by legislation. Indeed the Public Sector Act has varied the common law with respect to the termination of Public Servants’ employment. As stated, what satisfies the rules of natural justice and procedural fairness will depend on the facts and circumstances of each individual case

- Janakan Muthukumar,

Programme Officer,
Programme Support Unit
Legal Aid Commission

IMMEDIATE VACANCY

Legal Officers and Project Officer - Northern Province
Legal Aid Commission – Programme Support Unit

Legal Officer – Two Vacancies

Applicant should be; An Attorney-at-Law, Willing to be based in one of the LAC Centres in the Northern Province with extensive traveling within the Northern Province Districts, Very fluent in spoken Tamil and written Tamil, Fluent in Written English and spoken English, Working knowledge in Microsoft package, Internet and email

Project Officer – One Vacancy

Applicant should be; Willing to be based in one of the LAC Centres in the Northern Province with extensive traveling within the Northern Province Districts, Bachelors Degree in Social Sciences/ Law or any other related subjects, minimum three years experience in similar work, fluent in written and spoken Tamil, fluent in written and spoken English, working knowledge in Microsoft package, internet and email

Drivers – Two Vacancies

Applicant should be; Willing to be based in the Northern Province and to do extensive travelling within the province, minimum two years experience in working in the same position and the same location, fluency in Tamil, knowledge of spoken English would be an added advantage.

The suitable candidate will be compensated with an attractive remuneration. Candidates are invited to submit their complete CV including contact details and references on or before May 24, 2013.

Only shortlisted applicants will be called for the interview.

Email CV to: [email protected], Mailing Address: Project Officer-HR & Admin. Program Support Unit - Legal Aid Commission, No. 211, Superior Court Complex, Hulftsdorp Street, Colombo 12.

[Questions and Answers]

Last Will

Question: My father is willing to write a Last Will. Please let me know what is the value of writing a last will. can you help him?

- Kanthi,
Dehiwala

Answer: A living person who wishes to state the manner in which his property should be handled and the manner in which such property should be inherited after his death conveys his wishes by means of a document known as a Last Will. The purpose of writing a Last Will -

•It is evidence in writing received to ensure that after your death your property is inherited in the manner anticipated by you.

•You may have had a desire to carry out your obligations by transferring your property and money.

•If you hope to set a part of your property to person outside in addition to your close neighbours or in a meritorious act it could be done in the manner required by writing a Last Will.

In case where a Last Will is not written mentioning the manner in which the property should be divided, problems may arise after your death resulting in delay in distribution. If there is no Last Will written, since there is no record of your wishes the property will be distributed not in the manner you anticipated but according to the prevailing law. In addition the relevant heirs will have to bear heavy expenditure to obtain same. In your query you have mentioned that your father wants our help. In a case of need you can visit one of our legal aid centres in islandwide.

Dividing property under Common Law

Question: My husband has died in an accident without leaving a Last Will. He has land in his name and we have a child, but his parents say I am not to acquire any land. Could you kindly explain how a deceased’s property is divided under the Common Law. An early reply to my question would be greatly appreciated.

- Kanthi,
Matara

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 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.

Divorce matter

Question: I have decided to divorce my wife. We do not have any children. Can we mutually get the divorce? Please advise us.

- Nadunika,
Dodanduwa

Answer: If you are keen to file a divorce action, you must prove one of the following grounds under the General Marriage Ordinance:-

(a) Adultery subsequent to marriage
(b)Malicious desertion
(c)Impotency at the time of such marriage

You can institute a divorce action in the particular jurisdiction where you reside. Apart from the divorce action you can ask for permanent alimony (compensation), alimony and costs of litigation.

Trafficking

Question: I wanted to find foreign employment because of family problems. Therefore, I found a job agency situated in Maradana and they promised to send me to Kuwait. But when I went there, I found out I was in Saudhi –Arabia. I was subjected to sexual harassment. I worked there for two months. They did not pay me. Now I am back in the Sri Lanka. What relief I can get?

Answer: According to your information, it is an offence under the Amendment to the Penal Code. (Section 360 C 1) Trafficking. Section 360 c.1 says that Whoever-

a) Engages in the act of buying or selling or bartering of any person for money or for any other consideration;

b) For the purpose of promoting, facilitating or inducing the buying or selling or bartering or the placement in adoption, of any person for money or for any other consideration.

i) Arrangers for, or assists, a child to travel to a foreign country without the consent of his parent or lawful guardian; or

ii) Obtains an affidavit of consent from a pregnant woman for money or for any other consideration, for the adoption of the unborn child of such woman; or

iii) Recruits women or couples to bear children; or

iv) Being a person concerned with the registration of births, knowingly permits the falsification of any birth record or register ;or

v) Engages - In procuring children from hospitals, shelters for women, clinics, nurseries, Day Care Centres, or other Child Care institutions or procures a child of adoption from any such institution or centre, by intimidation of the mother or; any other person; or

vi) Impersonates the mother or assists in such impersonation.

Commits the offence of trafficking and shall on conviction be punished with imprisonment of either description for a term. Not less than two years and not exceeding twenty years and may also be punished with fine and where such offence is committed in respect of a child, be punished with. Imprisonment of either description for a term not less than five years and not exceeding twenty years and may also be punished with fine. Please make a complaint to the Childrens & Women’s Bureau. If you have a copy of the service agreement you can challenge the agreement in the District Court and can get compensation.

Migrant matter

Question: I want to find a Registered agent. I am in the village so a lot of Sub Agents come to us and introduce foreign employment. Please give us guidelines to find whether they are registered Agents or sub Agents.

- Ananda,
Anuradapura

Answer: If you want to go abroad as a housemaid there are registered job agents listed in the Sri Lankan Foreign Employment Bureau. Do not get foreign employment through the Sub Agents, because they are not legal under Sri Lanka Foreign Employment Act.

Rape

Question: Can you please tell me if it is possible for rape to occur within a marriage, if the wife does not give her consent?

- Sita Ranatunga,
Nuwara Eliya

Answer: Under the penal code, it is an offence defined as rape. According to Section 363, defined as follows:

A man is said to commit “rape” who has sexual intercourse with a woman under circumstances falling under any of the following descriptions:-

a) Without her consent even where such woman is his wife and she is judicially separated from the man;

b) With her consent, while she was in lawful or unlawful detention or when her consent has been obtained, by use of force or intimidation, or by threat of detention or by putting herein fear of death or hurt.

c) With her consent when her consent has been obtained at a time when she was of unsound mind or was in a state of Intoxication induced by alcohol or drugs, administered to her by the man or by some other person;

d) With her consent when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is, or believed herself to be, lawfully married;

e) With or without her consent when she is under sixteen years of age, unless the woman is his wife who is over twelve years of age and is not judicially separated from the man.

Explanation -

1. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape;

2. Evidence of resistance such as physical injuries to the body is not essential to prove that sexual intercourse took place without consent.

Abortion

Question: Please let me know whether abortion is legalized in Sri Lanka?

- Niluka,
Kalutara

Answer: No, abortion is not legal in Sri Lanka. Under the penal code it is an criminal offence. The penal code provisions are defined as the causing of miscarriage, or injuries to unborn children, as follows:

Whoever voluntarily causes a woman with child to miscarry shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished extend to three years, or with fine, or with both; and if the woman bequeath with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be liable to fine.

Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is bequeath with child or not. Shall be punished with imprisonment of either description for a term which may extend to twenty years, and shall also be liable to fine. Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to twenty years, and shall also be liable to fine.

Pension Life Certificate

Question: My nephew is a Sri Lankan government pensioner. He is presently residing with his family in India to educate his child.

Every pensioner is required to sign a life certificate at the beginning of the year and send it to the Divisional Secretary.

The format of the life certificate varies. His life certificate requires attestation by the Gramasevaka Niladhari. I am also a pensioner. My life certificate provides for Justice of Peace or Attorney at Law to attest. He was able to get his certificate attested by Gramasevaka Niladhari in 2008. The Gramasevaka Niladhari is not prepared to attest it this year. He will not get his pension this year without the life certificate attested by the Gramasevaka Niladhari.

Can you please help him to get his pension.

- Raj,
Sent by fax

Answer: We discussed your matter with the Pension Director, Department of Pensions. According to him your pension has stopped due to not informing the department and leaving the country. It is advisable to contact him via letter, or you can come to us with the request letter or email and we will help you to settle the matter.