Introduction: Rule of law

RULE of Law is the highest legal principle of general application; the cornerstone of the modern democratic state. The principle, simply explained means that "decisions should be made by the application of known principles or laws without the intervention of discretion in their applications." In other words the law should be supreme and should be the exclusive basis of equitable governance of the affairs of men and society.

The Rule of Law or Supremacy of Law need to be understood in contradistinction to the rule of man or God. Historically autocratic kings and tyrants sought legitimacy from divine rights to make laws according to individual whims, fancies and idiosyncrasies.

This resulted in oppression and inequality sometime resulting in the revolutionary overthrow of the tyrants. The parable relating to King Kekille in Sri Lankan folklore symbolizes the rule of an idiosyncratic man.

The Rule of Law or Supremacy of Law is operative both nationally and internationally. The principles of international law, which govern the conduct of inter-state relations, are founded on established conventions and multilateral agreements.

The United Nations Organization and its specialized agencies are the primary source of modern international law.

In the municipal law, Rule of law entails number of prerequisites. They are:-

1. Separation of Powers,

2. Independent Judiciary,

3. Independent and effective law enforcement authority.

In a modern democratic state such as Sri Lanka, the law making powers are entrusted to a body of elected representatives; the Parliament. The executive power is vested in an elected Executive President who paradoxically is constitutionally above the law and her/his cabinet of ministers.

The source for both executive and legislative power is founded on the basic law of the land, The Constitution. The interpretation of the Constitution or any other law is the constitutional responsibility of the independent judiciary. This separation of powers, specially that of the Judiciary is the cardinal ingredient of Rule of Law.

The independence of the judiciary envisages that the judges should interpret the law and decide on disputes without fear or favour constantly safeguarding fundamental rights enshrined in the Constitution.

In the exercise of judicial functions the judges should not come under extraneous pressure or influence as happened on few occasions in Sri Lanka in the early 1980s. Any interference in the judiciary will rupture the Rule of Law resulting in loss of confidence in the administration of justice and attendant breakdown in the law and order in the society.

The laws enacted by Parliament and decisions relating to such laws by the judiciary need to be respected and enforced. This is the responsibility of the law enforcement authorities who like the judges should be neutral and independent to evoke the maximum confidence in society.

Law should be the only nexus between the lawmakers, judges and law enforcement officials. Any interference in the equitable enforcement of law would denigrate the principle of Rule of Law. The need for an Independent Police Commission arose from this premise.

The Rule of Law is currently understood as a western legal principle of universal application. However, in ancient South Asian culture the Rule of Law prevailed in a more refined and a humanitarian manner. The supremacy of Dharma or just righteous law was the basis of governance and dispensation of justice in ancient India and Sri Lanka.

The Dharma envisions the full spectrum of universal Human Rights and values. In fact, according to early chronicles a cow filed the first fundamental Rights case in Sri Lanka during the time of king Elara.

The cow sought equality of justice against the Prince whose chariot ran over her calf. This fable is an illustration of how the Rule of law was deeply ingrained in Sri Lankan society even prior to the beginning of the Christian era.

-------------------

Legal Aid Commission celebrates International Women's Day

The female staff of the Legal Aid Commission and the National Center for Victims of Crime and the I.C.L.P. Arbitration center celebrated International Women's Day at a special ceremony hosted by Chairman of the LAC S.S. Wijerathna.

Over 50 women including Legal Aid officials gathered at 211, Supreme Court Complex on February 8 and were hosted to Kiribath to celebrate this occasion.

The LAC gave time off to the female staff to celebrate this special occasion in the Afternoon.

Among the other events organised by the LAC to celebrate the International Women's Day was the inauguration of the Women's Legal Aid Desk at the Welikada Prison to provide 'Legal Aid and Legal Advice' on a continuing day to day basis to female inmates.

The ceremonial opening took place on February 8.

-------------------------

Quo Vadis Rape Law?

In antiquity and into the early Middle Ages, rape was seen in most cultures less as a crime against a particular girl or woman than against the male she 'belonged' to. Thus, the penalty for rape was often a fine, payable to the father or the husband whose 'goods' were 'damaged.'

That position was later replaced in many cultures by the view that the woman, as well as her lord, should share the fine equally.

In the middle ages, the rape laws implies that rape is a crime solely because women are structurally subordinate, or because men want to dominate women.

This ideology has reduced the causes of rape and sexual assault into a stereotyped view: that is the patriarchy accounts for rape being criminal. The motivation of rapists is primarily the desire to dominate or control and express contempt for women.

The medieval rape law in general reflects two possibilities. (1) The ethical concern of the church with the voluntariness of marriage, (2) the subordinate (but not chattel) status of women, (3) the feudal emphasis upon the orderly transfer of property.

A more modern approach is reflected by the US Supreme Court in White J. opinion;

"We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim and for the latter's privilege of choosing those with whom intimate relationships are to be established. Short of homicide, it is the "ultimate violation of self."

It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. Rape is very often accompanied by physical injury to the female and can also inflict mental and psychological damage.

Because it undermines the community's sense of security, there is public injury as well. - Coker v. Georgia 433 U.S. 584 at 597-598 (1977) (53 L.Ed.2d 982, 97 S.Ct. 2861) (plur. opn. of White, J.; conc. and dis.opn. of Powell, J.)

As White J. observed the infliction of "mental and psychological damage" itself is seen within the walls of our courts when hard lawyers cross-examine a rape victim.

The cross examination can seem like a repeat of the rape experience over and over again.

It is in this context, that we should take a renewed approach, free from Anglo-Saxon legal paraphernalia, to deliver justice within the courts without traumatizing the victim.

The court should not be a place where harassment is repeated but a place where justice is meted out.

-----------------

ADB/LAC Legal Assistance programme

Interview with Alessandro Pio, Country Director, Sri Lanka, Asian Development Bank (ADB)

Question:

Can you explain the parameters of the ADB's legal assistance, governance and anti-corruption programme targeting tsunami affected districts in Sri Lanka?

Answer: The legal assistance, governance, and anti-corruption component forms part of ADB's US$ 150 million grant to Sri Lanka for post-tsunami reconstruction and rebuilding, which addresses reconstruction of coastal and local infrastructure, water supply, housing, roads, and livelihood restoration.

In the legal assistance, governance and anti-corruption component, funded with $ 2.2 million, ADB is partnering with the Ministry of Justice and the Legal Aid Commission to establish or strengthen regional legal aid commission offices (regional LACs) in the tsunami affected areas of Akkaraipattu, Matara, Balapitiya, Kalmunai, Colombo, Galle, Hambantota, Kalutara, Jaffna, Trincomalee and Batticaloa.

These regional LACs will help tsunami affected people with legal and documentary issues arising from the tsunami. Mobile van legal clinics will be conducted in nearby tsunami-affected areas to facilitate the recovery of birth records, property deeds, pawned article receipts and bank certificates.

In addition, legal disputes are likely, over such things as child custody, property ownership, and inheritance rights. While the tsunami (Special Provisions) Act No. 16 of 2005 covers many of these issues, tsunami-affected people need legal assistance to be able to access their rights. So this work also includes legal and rights awareness campaigns for the public and other government officials.

The ADB is also partnering with the Ministry of Justice and The Asia Foundation to establish tsunami mediation boards in tsunami affected areas to help tsunami-affected people resolve disputes without going to court.

The ADB component is also coordinating with and has agreed to support the Commission to Investigate Allegations of Bribery or Corruption (Bribery Commission), which is taking a proactive role in investigating tsunami related corruption. Other aspects of the assistance are directed towards increasing transparency, coordination, good governance and accountability.

Question:

What are ADB's objectives in launching this programme?

Answer: The ADB's main objective for its tsunami assistance is to rapidly improve the living conditions and well-being of people in tsunami-affected areas by restoring basic social infrastructure, community and public services and livelihoods.

The goals of the legal assistance, governance and anti-corruption component are to assist the government's response on two fronts. First, the destruction wrought by the tsunami has generated legal issues for already vulnerable tsunami-affected people and the Government. Second, the generous contributions of foreign assistance have also raised potential governance issues.

ADB seeks to assist tsunami-affected people avail of their legal rights, and at the same time encourage tsunami-related assistance to be used for the purposes it was intended.

Question:

Did the original programme envisage provision of legal assistance to tsunami victims in the Jaffna, Mullaitivu, Trincomalee and Batticaloa districts? Was this assistance subsequently postponed?

Answer: The component does envisage provision of legal assistance to tsunami affected persons in Jaffna, Mullaitivu, Trincomalee and Batticaloa.

Ensuring the equitable delivery of assistance between the North and East, and the South of the country is a key part of all of ADB's tsunami-assistance. Similarly, the ADB considers coordination with other development partners and preventing duplication of assistance to be of utmost importance.

The establishment of offices in the North was postponed, when the ADB learned that other development partners and NGOs had started providing similar legal assistance in the North and East. These coordination issues have been resolved at the central level and will be coordinated at the district level.

Thus, the ADB-financed component in these areas is now going to proceed, with ADB funds assisting the establishment of regional LACs in Jaffna, Trincomalee and Batticaloa.

Mobile legal assistance services and awareness campaigns will be conducted to serve the surrounding districts in the North and East, including Mullaitivu.

Question:

How do you plan implementation of the anti-corruption programme in the tsunami-affected areas?

Answer: The ADB is not planning to implement an 'anti-corruption programme,' which is the responsibility of the government. ADB support is being provided through the Legal Aid Commission to appoint anti - 'corruption sentinels' within each regional LAC in tsunami affected areas.

The appointment of these officers has been coordinated with the Bribery Commission.

The corruption sentinels will promote an awareness of tsunami related corruption issues, and of the rights of persons to lodge complaints with the Bribery Commission. Because the Bribery Commission is located in Colombo, the corruption sentinels will also function as a 'post-box' by receiving corruption-related complains to be transmitted to the Bribery Commission either by fax or phone.

The corruption sentinels are intended to function to increase awareness and to make forwarding of complaints about tsunami related corruption to the Bribery Commission more accessible to tsunami-affected persons.

-----------------

Questions and Answers

Maintenance

Question :

Does the law recognize the mutual obligations of the two spouses to maintain each other under the maintenance law in Sri Lanka?

Naduni Perera - Kataragama.

Answer :

The Maintenance Act No 37 of 1999 introduced new areas of maintenance. This new Act abolished the old Maintenance Ordinance No 19 of 1889. The new Act is trying to protect and care for children in a more modern and dynamic perspective. One of the significant departures of the new Act is the recognition of the mutual obligations of the two spouses to maintain each other.

According to the Ordinance it was the bounden obligations of the man to maintain his wife and the wife had no corresponding obligation towards her husband. That the wife had independent means to support herself was quite immaterial.

Under the Ordinance only a wife was empowered to initiate proceedings against her husband. Under the new Act a husband who is unable to maintain himself, acquires rights and could sue his wife for maintenance.

The magistrate in making an order requiring the dependent spouse to make a monthly allowance for the maintenance of the applicant spouse shall have regard to the income of the defendant spouse and the means and the circumstances of the applicant spouse.

The new law creates a financial burden on working women which they did not have earlier, but liberated women can comfort themselves to see that the maintenance law has recognized the equality of men and women.

Legal aid

Question :

We have about five hundred girls working in our factory most of them have economic problems as well as family problems. But they have nobody to get some legal advice and they are reluctant to open up their heart to strangers and get advice. I would like to know if you have any remedy to help these poor working girls?

Ananda Jaysinghe - Factory Manager, Marawila.

Answer:

Yes. Legal aid is given free for those whose monthly income is less than Rs 6,000 per month, and you can write to us in any language or you can contact us by telephone, or reach us at outstation legal aid centers to seek any legal advice. An Elders Unit, Migrant Workers Unit and Litigation Unit too has been set up to help you.

Family Law

Question :

I am a 26 year old mother of four children aged 11, 10, 7 and 4 years. I married a soldier. I was forced into this marriage. I tried to live with him peacefully but was not successful because he is a drug addict. He is a oversexed selfish person.

Now he is not looking after the family so I try to earn a living while my parents take care of the children. I don't want this to be made public as it will have a bearing on my children.

As you know when people come to know that my husband has left me they try to take advantage of such a miserable situation. Because of that I would rather bear-up all those things patiently. What is your opinion on this? Is there a remedy for people like us?

Factory Worker - Nattandiya.

Answer :

You should not keep quiet because of your fear of society. You have a duty towards your children and you must try to win their rights by sacrificing your personal safety. You can file a maintenance case without divorcing him or you can divorce him on such grounds of desertion.

Under the Domestic Violence Act you can seek some relief. If you are poor, you can seek some solace from the Legal Aid Commission. We need not bow down to the ways of society but, we must try our best to change and improve it.

Women should not keep quiet, they should fight their rights. The mothers have equal role to play as well as fathers to improve the living standards of the society.

Question :

I have been married for the last 22 years and my husband forced me to give up a pensionable job.

I am now so disgusted and depressed owing to my marriage and wish to be released by some manner. Nothing can be proven even though people speculate, because my husband looks so calm and pleasant outward and if necessary can show affection towards me.

There are occasions early in the morning while I am cooking he scolds me as devil, demon etc. He will cook up a fight for no reason at all.

My mother tried to obtain a divorce initially but his pastors stopped it. In fact my husband vowed never grant me a divorce. Please help me to find a solution to this problem.

Selima M Jayasingham - Talawakelle.

Answer :

If you are continuously harassed you can obtain a protection order from the nearest magistrate preventing your husband abusing you in the future. You can contact the nearest Legal Aid office at Nuwara Eliya.

Divorce

Question:

* On what grounds can a divorce action take place?

* Is it possible to file a maintenance action against the husband pending the divorce case.

A.P. Samaranayaka - Ratmalana.

Answer:

A marriage can be dissolved only on one or more of the following grounds:

* Adultery subsequent to marriage

* Malicious desertion

* Incurable impotency at the time of such marriage

It is possible to file a maintenance action when the divorce case is pending.

Maintenance action and the Divorce action has taken place in a different courts procedure.

Deed of gift

Question: Can a donor revoke his deed of gift during his life time?

Lakshantha Peris, Bangadeniya.

Answer: Yes. A property is donated to take effect after the donors life time.

Such a donation could be revoked during his life time. The deed of gift cannot be revoked where there is no such reservation for revoking such donation. A deed of gift by its nature is irrevocable.

1) On the grounds of gross ingratitude or misbehaviour as for instance when the donee attempts on the life of the donor or strikes him or attempts to ruin his estate.

In case of a situation like this arising the donor can file action against the donee citing this reason.

2) When the condition on which the deed was given is broken.

3) A deed of gift with a power of revocation may be revoked by a subsequent deed.

4) When the donor of a gift of great value has children later.

Inheritance

Question: After divorcing mother, our father remarried. He had four children. He is 70 years now and if he dies without writing a last will what proportion of his property will his four children and second wife inherit?

B. G. Punchihewa - Ratmalana.

Answer: If the property is gained by intestate succession the partition of a property gained by inheritance differs according to the law the deceased was governed. Under the common law the property is devolved in the following way:

If the deceased was married, half of the property would be granted to the spouse and the other half to be equally divided among his children.

If the deceased is a divorcee half goes to the children if the children are alive and the balance goes to the parents equally. But in your query you have mentioned that your father was divorced and married another woman.

So due to that, the second wife can be considered as his lawful wife so half of the property goes to her and the other half to the deceased's children equally.

------------------

Legal Aid events

10.03.2006 - Awarding of Certificates to Grama Niladharies, in the Matara and Hambantota Districts.

11.03.2006 - Opening of LAC Centre in Hambantota.

11.03.2006 - 12.03.2006 - ADB Training Programme - Kobbekaduwa Research Centre.

13.03.2006 - Opening of LAC Centre at Avissawella.

13.03.2006 - Awareness programmes at Mirigama Training Centre of Sri Lanka Foreign Employment Bureau.

15.03.2006 - World Consumers Day.

16.03.2006 - Opening of LAC Centre at Matale.

30.03.2006 - Elders Awareness Programme at Pamunugama.

------------------

Disclaimer

The answers to questions are the Legal views of individual lawyers and The Legal Aid Commission only compiled them for the Daily News Legal Aid Page.

Send your questions to: Daily News Legal Aid Page, Chairman, Legal Aid Commission, No. 129, Hulftsdorp Street, Colombo 12.

Email-legalaid.dailynews@yahoo. com

Website-www.lawaid.org