Legal Aid Commission

Fundamental Rights in Sri Lanka – An introduction

Human Rights are rights people have irrespective of their race, religion, gender and ethnicity. However Individual countries have over time chosen Human Rights which they feel they should give priority to and have included them in their law. Generally these rights are included in the most Superior law of the Country- the Constitution. In Sri Lanka these Rights are termed as Fundamental Rights (FR). Hence Fundamental Rights could be described as Human Rights recognized by a particular country and when violated could be vindicated in the Courts of that Country.

Legal Aid Commission Chairman S.S. Wijeratne and Director General Justice Hector S. Yapa lighting the traditional oil lamp at the opening ceremony of the Legal Aid Centre at Homagama. Picture by W. Chandradasa

FR was introduced to Sri Lanka under the 1972 Constitution. However there was no mechanism laid down at that point as to how these could be enforced rights in the country. Later under the 1978 Constitution more specific rules were created to ensure that these rights violated by the State, how a party could be bring the matter before Courts.

In Sri Lanka the Fundamental Rights is found in Chapter three of our Constitution. These rights are also available to non citizens of Sri Lanka.

The rights, exception to the exercise of these rights and how the violation of these rights can be taken to Courts is laid down between articles 10 to 17 of the Constitution.

These rights include freedom of thought conscience and religion, freedom from torture and unlawful arrest, right to equality and the protection from retroactive penal legislation (being punished for a crime which was not unlawful at the time of committing it, or which became a crime under the law after the Crime was committed)

The Sri Lankan Constitution provides also for the right of free speech and expression, the right to gather peacefully, the right to make friends or be associated with persons of your choice, the right to practise one’s religion, the right to promote one’s culture, the right to speak one’s language, the right to choose and engage in any lawful job of one’s choice, the right to live where one wants to and the right to return to Sri Lanka.

For instance if the police arrests a person for stealing his neighbours property this would not be considered a breach of the person’s fundamental right. The Police in this instance is doing an act which has been permitted by law. Then again if the same person was arrested and tortured for committing the said crime that would be a violation of his FR. The law permits the accused to be arrested but it does not permit him to be tortured. Hence the accused could file an action in Court seeking a remedy for violation of his rights. Under our Constitution the State and only the State has a duty to protect the rights given to us by our Constitution. Hence for example if a child is punished by his/her parents and not allowed to play with his/her friends the child cannot file action in Court stating that his parents have violated his freedom to associate with the people of his choice. FR actions can only be filed against the Government of Sri Lanka. Hence for instance a FR action could be filed against any public officer, as representing the government of Sri Lanka.

An FR case can only be filed in the Supreme Court of Sri Lanka. No other court has authority under our law to entatain an FR case.

However Article 15 of the Constitution provides for instances where FR applications can be restricted. Such applications can be restricted on grounds of National Security or in the interest of National Economy, maintaining racial and religious harmony, protection of public health and morality and in the interest of protecting another person’s rights. It is to be seen that there are ample FR cases which have come up before the Supreme Court since 1978 which have been dismissed by the Supreme Court on the above mentioned grounds. It appears that in Sri Lanka the Supreme Court has taken a much weaker stand in protecting the rights of people against arbitrary State action. This is in contrast to India where the judges within the powers given to them have been able to pronounce judgements in favour of the people. For example, a case was brought before the Supreme Court in 1983 where the government made an order prohibiting the printing, publishing and distribution of the ‘Saturday Review’.

It also made an order for the printing press to be closed. The affected party (Petitioners) saw this as a violation of their right to free speech and expression. However the Court was of the following view:

“The fundamental rights guaranteed by the Constitution cannot by their very nature be interpreted as being absolute rights. There are well-recognised restrictions and exceptions to the exercise of these rights. Freedom of speech, press and assembly are dependent upon the powers of the Constitutional government to survive. If it is to survive, it must have the power to protect itself against unlawful conduct and under certain circumstances against incitements to commit unlawful acts.”

It may be said that Fundamental Rights law is similar to Labour laws of a country in the sense that in both instances the parties involved are placed on unequal grounds from the outset. In Labour relations the employer is more powerful than the worker.

Hence Labour laws were formulated to protect the worker. In the same way the government is obviously far more powerful than to an ordinary person. It could make decisions on many grounds and for many reasons reasonably or unreasonably which could affect an individual’s rights. And the individual has little or no control over what happens to him. Hence it is important that Court considers a Fundamental Rights case in this light and not to assume the parties as equal when it decides, FR cases.

- Swasthika Arulingam

AAL,
Project Manager,
Programme Support Unit, Legal Aid Commission

Questions and Answers

New Driving Licence

Question : Please give me instructions to obtain the new smart Driving Licence?

- Disanayaka, Daduru Oya

Answer: This driving license is issued under the following two methods.

1. First method - Online method at the Head Office at Werahera and at the District Office at Kurunegala.

2. Second method- Offline method at other district offices.

Common requirements

1. Applicant should be present in person.

2. Should bring the national identity card or the valid passport with the national identity card number.

3. In obtaining the service from offices where online method is available producing photographs is not required and the relevant photographs are taken during the computer process. For offices where offline method is used two passport size black and white photographs with white background are required.

4. In obtaining a driving license for the first time, original of the birth certificate should be produced.

Obtaining a new driving license for light vehicles.

1. It is possible to register and sit for the written test if 17 years of age has been completed.

2. In the event of passing the written test, a learners’ permit is issued up to a maximum of 18 months.

3. Holder of such permit can practice driving.

4. One should complete 18 years of age to face the practical test and a minimum of three months should have passed after obtaining the learners’ permit.

5. It is compulsory to face the practical test and pass it.

Aptitude medical certificate of M.T.A. 31A form obtained within a period not exceeding six months from a doctor registered with the Medical Council of Sri Lanka.

Extension of the driving licence for heavy vehicles

Question : I have an old Driving Licence for Heavy Vehicles. Please let me know how I can extend the driving license for heavy vehicles?

- Gunadasa, Padukka

Answer: The procedure of the extension of the driving licence for heavy vehicles is as follows.

1. He/she should be a holder of a license for light vehicles (only B and B1 vehicle classes) for a minimum of two years prior to the date of application.

2. To obtain a license for light motor bus and motor lorry category the minimum height should be 4 feet 10 inches. A minimum height of 5 feet is required to obtain a licence for Motor bus and motor lorry category.

3. It is possible to register and face the written test on completion of 20 years of age.

4. In the event of passing the written test, a learners’ permit is issued for maximum period up to 18 months.

5. Holder of such permit can practice driving.

6. 21 years of age has to be completed to face the practical test and a minimum of three months should have passed since obtaining the learners’ permit.

7. It is compulsory for the applicant to face the practical test and pass it.

8. Aptitude Medical Certificate obtained from the National Transport Medical Institution within a period not exceeding six months.

Registration of Ownership Tranfer

Question : Please let me know the documents required to be submitted for the revision of information contained in the registration certificate of Motor Vehicle?

- Meegoda, Anuradapura

Answer:

1. CMT 72 application
2. Registration certificate of the vehicle
3. Vehicle Identity Card (applicable only for vehicles with new number starting with English letters.)

4. In case of a change of the colour of the vehicle, engine number etc. certificate of the Motor Vehicle examiner (CMT – 130)

5. If luxury taxes are applicable, originals of the receipts on payment of such taxes and photo copies of the same.

6. If another engine has been installed, the prior approval of the Commissioner General and the receipt for the purchase of the engine (with photo copies)

7. In case of revision of the name and the address, relevant documents confirming the fact should be submitted.(EX.Birth certificate, National Identity Card, Report of the Grama Niladhari, an affidavit etc)

Fee : Rs. 300

Registration of a Mortgage / an absolute ownership / a lease.

1. Registration certificate of the vehicle (CR)
2. Vehicle Identity Card (V1C)

3. Letter of consent from the owner of the vehicle for mortgaging the vehicle to the relevant institution or to transfer absolute ownership.

4. In case of registration of a mortgage, a certified copy of the mortgage deed, and letter written on a letterhead of the relevant financial institution informing of the registration of the mortgage.

5. For registration of absolute ownership, perfected MTA 3 form.
6. For registration of a lease, a copy of the deed of lease held and a letter by the lesser.

Cancelling the registration of a mortgage / an absolute ownership / a lease of a vehicle.

1. Registration certificate of the vehicle (CR)
2. Vehicle Identity Card (VIC)

3 .A certified photo copy of the applicant’s national identity card. A letter written on a letterhead of the Financial institution addressing the Commissioner of Motor Traffic requesting the cancellation of mortgage / absolute ownership / lease as well obligations have been settled. (Stating the number of the relevant vehicles in compulsory)

Obtaining a duplicate certificate and the vehicle identity card

Question : I have a car. The vehicle identity card and the registration certificate of my car is misplaced. Can I apply for a duplicate vehicle identity card and the registration certificate of the vehicle?

- Harendra, Karutara

Answer: Yes, you can obtain a duplicate of the registration certificate of the vehicle and the vehicle identity card.

1. CMT 65 application

2. A certified copy of the complaint lodged with the Police with respect to the loss of that certificate and the receipt of payment for that.

3. In case a mortgage / an absolute ownership / a lease has been registered, a letter issued by the relevant institution stating that it does not object to the issue of a duplicate.

4. If the original of the registration certificate or the vehicle identity card is disfigured or partially destroyed, the same should be submitted as well.

5. A photocopy of the national identity card.
6. A CMT 130 application to obtain weight certificate of a vehicle.

Procedure: The above-mentioned documents should be submitted to the Technical Branch and thereafter prior approval for the conversion should be obtained from the Commissioner General of Motor Traffic.

Producing the approval documents and the vehicle to the Werahera office and obtaining weight certificate and fuel conversion of vehicle can be performed after handing over the documents to the relevant branch.

Duplicate of vehicle number plate and sticker

Question : Please let me know the documents that are needed to obtain a duplicate of the number plate of a vehicle or a duplicate of the sticker of a vehicle bearing a number starting with English letters.

- Sent By Email

Answer:

1. CMT 65 application form

2. A certified copy of the complaint lodged with the police on the loss of the number plate / sticker and the receipt of payment in that respect.

3. If a mortgage / an absolute ownership / a lease has been registered, a letter issued from the relevant institution intimating that it does not object to the issue of a duplicate of the number plate / sticker.

4. If the original of the number plate / sticker is disfigured or partially destroyed, the same should be submitted as well.

5. A photo copy of the national identity card.

If you have any legal issues of interest call the Hot line -0727660660 ENTRENCE FREE

Cancellation of vehicle registration

Question : Please let me know the procedure of the cancellation of the registration of a vehicle.

- Haturusinghe, Gampaha

Answer: In case a registered motor vehicle is removed from Sri Lanka, or destroyed or has been dismantled or rendered unusable permanently, the registered owner should inform the Commissioner General of Motor Traffic within 14 days, for the cancellation of its registration. It is appropriate to refer such requests directly to this department. A request for cancellation should be made through MTA 67 and request for removal from the country should be made through MTA 140. In case a motor vehicle removed from the country is brought back to the country and registration needs to be reactivated, the registration certification issued on the removal of the vehicle, the documents relevant to the cancellation of registration in a foreign country if such has been the case, should be submitted along with the customs documents.

Fuel Conversion

Question: I have a Petrol Vehicle. I want to do a fuel conversion of my vehicle . Please advice me how I can do it under the Motor Traffic Department ?

- Damika, Colombo

Answer: Fuel Conversion

Fuel conversion can be performed only after three years from the date of registration and before 25 years has been completed only.

Relevant documents

1. CMT 130 form
2. CMT 72 form
3. A photo copy of the revenue license.
4. Letter from the Finance Company (only if applicable)
5. A photocopy of the bill of the engine.
6. A photocopy of the registration certificate.
7. A letter of request.

Procedure

The above-mentioned documents should be submitted to the Technical Branch and thereafter prior approval for the conversion should be obtained from the Commissioner General of Motor Traffic.

Producing the approval documents and the vehicle to the Werahera office and obtaining weight certificate and fuel conversion of vehicle can be performed after handing over the documents to the relevant branch.

Conversion of the vehicle class

Question : Is it possible to do a conversion of the vehicle class under the Motor Traffic Department?

- Duunagaha, Akuressa

Answer: Conversion of the vehicle class is possible only within a period of 25 years from the date of registration.

Relevant Documents

1. CMT 130 form
2. CMT 72 form
3. Photo copy of the revenue license
4. Letter of the Finance Company (if relevant only)
5. Photocopy of the registration certificate
6. Letter of request

Procedure

1. The aforesaid documents should be submitted to the Technical Branch and prior approval should be obtained from the Commissioner General of Motor Traffic.

The approved documents and the vehicle should be produced to the Werahera office and performing the conversion of the vehicle class after handing over the documents to the relevant branch.

Registration of Vehicle Dealers

Question : Please let me know what kind of documents that are needed to register as a Vehicle Dealer under the Motor Traffic Department ?

-Samaratunga, Kalutara

Answer : Approval of motor vehicle prototypes

1. Prototype application
2. Identity report obtained for the vehicle type submitted for prototype approval.

3. Registration certificate, weight certificate and photocopies of MTA 2 application of each vehicle of that type.

4. Catalogue relevant to the vehicle type.

5 .Photocopy of the trade certificate obtained from the Department of Motor Traffic for the relevant year.

Registration of a Garage

1. Application for the registration of a garage.
2. MTA 23 form
3. Application for the issue of a trade permit for the year ….

4. VAT certificate.
5. Title deed of the land where the garage is located.
6. Trade permit

Registration of a trading company / vehicle sale centre.

1. Customs clearance certificates of 5 vehicles.
2. Application for the registration of a trading company.
3. MTA 23 form
4. Application for the issue of a trade permit for the year ….
5. VAT certificate
6 . Trade permit
7. Land title deed

Renewal of trading companies / garages.

1. MTA 23 form
2. Application for the issue of a trade permit for the year ……

Trade certificate obtained from the Department of Motor Traffic in the previous year.

Pension

Question: My sister who is pensioner and died two weeks ago. She has disabled child. She has already informed about her disabled child to the Penson Department, but I got to know that the divisional secretarial office stop my sisters pension. Can the divisional secretarial office stop some ones pension after his/her death?

Is there any way to get the pension to her disabled child?

Chamara, Kataragama

Answer: Yes the Divisional Secretariat would cancel pensions after the demise of a pensioner.

In such a situation a relative of the pensioner must inform the Divisional Secretariat or the respective Post Office submitting the Death Certificate of the pensioner concerned that is required to prove his/her death. If the pension is not collected within a period of three months the pension would be cancelled.

If the pensioner did not collect his/her pension within three months he/she must inform the Divisional Secretary of the respective Divisional Secretariat by forwarding a request letter stating reasons for not collecting pension. In the case of greeting W & OP pension to the disabled child you have to inform it to the pension Director. After following his instruction that child can get her mother’s pension.

Sexual harassment

Question: The Head of my Institute proposed me to have sexual relationship to approve my salary increment. But since I refused the proposal the Head does not approve my increment. Kindly advice me as to how I could overcome this problem.

- Send by Email

Answer : It is very clear from your question that the Head of your Institute has proposed to have sexual relationship with you to approve your transfer which is also a kind of bribe. Under the Bribery Act No.11 of 1954 and its Amendments, taking bribe or giving bribe in any Government Departments to any person is an offence. If a person is expecting bribe to do his duty or delaying his duty until he is given bribe, such incidents could be brought to the notice of – The Commissioner to Investigate Allegations of Bribery or Corruption, No. 36, Malalasekara Mawatha, Colombo 7, Hot Line 2586257

The Bribery Commission treats all information as confidential. If you need any further clarification, you may contact our Anti-Corruption Legal Aid Centres or Zero Corruption Desk of the LAC.

Act No.22 of 1995 Penal Code Amendments – Section 345 states as follows:-

“Whoever, by assault or use of criminal force, sexually harasses another person, or by the use of words or actions, causes sexual annoyance or harassment to such other person commits the offence of sexual harassment and shall on conviction been punished with imprisonment of either description for a term which may extend to five years or with fine or with both and may also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for the injuries caused to such person”

If you want to seek relief you have to file a case in the Magistrate Court where you reside.

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Extension of the validity of the driving licence

Question: Please let me know the documents that are needed to extend the validity of the Driving Licence?

- Karunaratna, Balangoda

Answer: The following documents are needeed to extend the validity of the Driving Licence .

1. Current driving license.
2. National Identity Card or the valid passport with the national identity card number.

3. For light vehicles - Medical fitness certificate obtained from a Medical Officer registered with the Sri Lanka Medical Council on a M.T.A. 31 form, within a period of six months.

For heavy vehicles - Medical Fitness certificate obtained from the Sri Lanka National Transport Institute within a period of six months.