Introduction -Lawyers Responsibility for Legal Aid

The members of the legal profession have an ethical responsibility to undertake legal aid work on behalf of the indigent litigants. Justice A.R.B. Amarasinghe, in his book "Professional Ethics and Responsibility of Lawyers" quotes a report from the American Bar Association to the effect "that one of the highest goals of society must be to achieve and maintain equality before the law.

Yet this ideal remains an empty form of words unless the legal professional is ready to provide adequate representation for those unable to pay the usual fees".

Many legal practitioners in Sri Lanka undertake unheralded probono work but not necessarily for indigent litigants or as a part of their professional obligations.

Legal aid work in Sri Lanka mainly depends on very junior lawyers who undertake such work to gain experience in court craft. Hence, the quality of legal assistance provided to indigent litigants is poor and bound to be replete with professional mistakes.

The attitude of the judiciary, with a few exceptions, towards the legal aid practitioners is far from complimentary.

All in all, the legal aid beneficiaries, more often than not are guinea pigs and only receive the crumbs of justice.

The situation of those who are too poor and ignorant even to find the bus fare and locate a legal aid provider do not even receive the crumbs.

The ethical attitude of the legal profession towards systemic legal aid needs a radical change.

In Malaysia, this was achieved by a legislative enactment.

Thus Sec. 42 (i) (h) of the Legal Practitioners Act of 1976, provides.

The purpose of the Malaysian Bar shall be.... to make provisions for or assist in the promotion of a scheme whereby impecunious persons may be represented by advocates and solicitors".

The Malaysian Bar council legal aid scheme is self financed as a members of the bar pay an annual levy of RM 100 to the legal aid fund.

This professional obligation is voluntarily dispensed by the Malaysian Bar despite the existence of the comprehensive legal aid scheme of the Government Legal Aid Commission.

In Sri Lanka, the Rules of Court dealing with the legal professional do not cast a professional obligation on the legal profession to provide legal aid.

However, the Legal Aid Commission has already established 29 Legal Aid Centres throughout the island to provide free legal aid to the poor litigants with the help of young and well experienced lawyers to handle this task.

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Questions and Answers

Confusion regarding leave under Shop and Office Employees Act!

Question: I was told that if we apply for sick leave, it should be supported by a Medical Certificate, as otherwise it will be set off against the annual. In case of applications for other leave, they will be set off against the annual leave and if annual leave is exhausted casual leave will be allowed.

Is it necessary to produce a Medical Certificate when applying half a day's Medical Leave? What is the number of the days required to obtain a Medical Certificate?

How many days of casual, medical and annual leave are allowed per year? What is the number of days required to obtain casual leave? How does the Shop and Office Employees Act apply in this regard?

S. Vivekanandan, Colombo.

Answer: You have not mentioned in your letter whether you are attached to the Government Sector or Private Sector. Government Officers are entitled for the following leave:-

(a) Executive Officer or Subordinate Officers - 21 days casual leave and 24 days vacation leave.

(b) Any other category of Minor Staff - 21 days casual leave and 14 days Medical Leave.

(c) Any Officer can apply for casual leave by leave application for a period of six days and can apply only once.

(d) The Public Officers are entitled to 21 days casual leave for a period of one year. Any officer can take all the casual leave before the end of that year but he had no right to utilize such leave or balance leave for the coming year. (next year). Officers can apply for vacation leave without a Medical Certificate for a period of five days.

(e) Any Public Officer could take more than two days leave by telegram or by a telephone call. However when the officer reports for duty he should submit a Medical Certificate.

Nevertheless Government Officers can take leave after obtaining approval by the Head of the Department. Leave is a privilege but it varies from Private Sector to Government Sector.

Problem with tenant

Question: I returned from abroad for a vacation in 1983 and on the 16th February 1983, I purchased the land which was divided into three blocks and then went abroad again. After a lapse of one and half years I came back to the island.

Then when I went to see my property I was surprised to see a tenant who was living next to my property in occupation of my house situated in my property. On questioning the tenant he made me understand that as the house he was living in another owner's property had dilapidated he had come to reside in the house in my property thinking that it too belonged to the same owner.

The deed of the house is in my name but it is now occupied by some other tenant. Please advise me as to how I could get back my property.

Tuan Badurdeen, Colombo.

Answer: According to your letter it is crystal clear that when you came back to Sri Lanka you have seen some other tenant had encroached your land and occupying your property unlawfully.

Therefore, you should have made a complaint to the police station that a particular person has crept into your land unlawfully and forcibly occupied your property or land. Thereafter, the police will summon him and inquire about it. If there is no settlement arrived at, you can then proceed to file action against the trespasser and eject him from the disputed land and premises.

If your land value is below 25,000 prior to filing action, you could go before the Mediation Board. The Mediation Board will thereafter call both parties and hold an inquiry. If a settlement is reached at the inquiry, the Mediation Board may enter the settlement accordingly and ask the trespasser to vacate from the said property or land.

If there is no settlement reached, the Mediation Board may issue you with a non settlement certificate. Accordingly you can file action against the trespasser in the District Court where the property or land is situated.

How to prevent noise pollution

Question: I am living in a town. There is a garment factory near my house. The noises of garment factory are very high. The noisy environment is not conducive to the surrounding neighbours.

Factory workers stay at night in this noisy environment. They have parties, play games thereby causing a lot of disturbance. As a result we cannot live in a peaceful environment. So is there any remedy to overcome this situation?

N.S.Perera, Wennappuwa.

Answer: According to your letter, you wanted to get advice as to how you could prevent the nuisance caused by the Garment Factory. First of all you have a right to make a virtual complaint or a written complaint against the above mentioned factory. If they are not complying with your request, you have a right to make a complaint to the nearest police station.

The police will call the other party and advice them to stop the nuisance. If they are unable to act accordingly, the police will file criminal action under the Provisions of the Criminal Procedure Code to prevent a public nuisance.

You have another remedy - that is to make a complaint to the National Environmental Authority. They also have power to prevent such kinds of nuisance in your area.

My husband treats me badly committing adultery. How can I get relief from him

Question: I am a married woman with a 19 year old son. My husband is having a strong attachment with another women and as you know, he is committing an act of adultery or otherwise an extra marital involvement.

Hence I am seeking a separation as I cannot tolerate this any more. He comes home very late and when asked for the reason, he gets very angry and hits us and even breaks the furniture. Earlier, It was done very secretly, but later he admitted the same.

Though I need a separation, he refuses to go as he has no place to go and I do not think that the other woman can keep him wherever she is staying. Please advise me as to get a separation and claim maintenance? Please reply.

V. Perera, Katukurunda.

Answer: According to the law you can file action against your husband as well as his mistress on the grounds of adultery. Adultery is a ground for divorce. If you wish to get a divorce, you have to prove one of the following three grounds:-

(a) Malicious desertion

(b) Adultery subsequent to marriage

(c) Incurable Impotency at the time of such marriage.

Without divorcing you can file action for separation before the District Court under the Provisions of the Civil Procedure Code. You can also claim maintenance from your husband by filing a maintenance case or a divorce case.

In any case, after your child is over 18 years of age you are not entitled to ask for maintenance of the child. However, under the Maintenance Act a child who is above 18 years can ask for a maintenance in certain circumstances.

E.g. if the child is doing higher studies or he/she is a disabled person or sick person, depending on each case.

Further if any person has been living in separation for seven years he or she can file a divorce action on that ground under the Civil Procedure Code.

You have another remedy. Under the Domestic Violence Act No. 34 of 2005 you can ask for protection order against your husband and under this new law you can be prevented from physical and emotional abuses from your husband.

Can a person write a deed of gift incorporating conditions?

Question: One of my uncles has gifted a deed in my name including certain conditions. The condition states that he gifted the property keeping the life interest with my mother. Can he write a deed in such a manner?

In the circumstances what kind of rights do I have regarding the said property?

Fernando, Mawila.

Answer: Any person can write a Deed of Gift including certain conditions. Deed of Gifts are based on the love and affection between the donor and the donee. When we look at your question, we can say your uncle has the option to write the deed including conditions keeping the life interest to your mother.

That means your mother holds the life interest. So you cannot sell the said property without her consent. You cannot do anything with regard to the said property as long as the life interest remains with your mother.

However, you can sell or do anything with the property with the consent of the mother. If both parties agree, then you can do any thing with the said property. Otherwise you can acquire the whole property after the death of your mother.

Is there any age limit that applies to marriage in Sri Lanka?

Question: What is the minimum age of marriage in Sri Lanka?

A Citizen, Colombo.

Answer: Under the general law and the Kandyan Law, the minimum age of marriage is now 18 years for both males and females. Furthermore under the Provisions of the Penal Code in Sri Lanka, sexual intercourse with a girl who is under the age of 16, with or without her consent amounts to the offence of rape. (Section 363 (e) of the Penal Code).

The age of consent has been raised from 12 to 16 by an Amendment to the Penal Code in 1995 (Penal Code Amendment Act No. 22 of 1995). However, the above amendment recognised that sexual intercourse with a person's wife who is below the age of 16 but above the age of 12 will not be considered as rape provided the parties are not judicially separated (Sec. 363 (e))

This concession was made on account of the low age of marriage in Muslims. But the question arose whether sexual intercourse with a girl below the age of 12, even though she is the wife of another man would amount to rape.

There is no minimum age of marriage for Muslims in Sri Lanka. Muslim girls who are below 12 years of age shall not be registered, unless the Quazi has authorised the registration after an investigation.

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30th LAC Center at Polonnaruwa

The 30th Legal Aid Commission Center to provide free legal aid to the poor in the Polonnaruwa District will be opened by Chief Justice Sarath N Silva, PC on June 10 in association with the Mahaweli Development Minister Maithripala Sirisena, the Minister of Justice and Legal Reforms Amarasiri Dodangoda and the Chairman, Legal Aid Commission, S.S. Wijeratne.

The center is being established at the request of the Bar Association of Polonnaruwa whose Chairman is Mr. Udagedera, Attorney-at-Law.

The Center would be a Multi Purpose Legal Aid Center which will not only cater for legal needs of the poor people in the Polonnaruwa but also provide institutional support to process their agricultural credit applications and questions relating to sale of paddy harvest.

The Bar Association of Polonnaruwa has selected D. Kularatne who is an Attorney-at-Law with nearly 25 years of standing at the Bar as the Director of the Center, while the legal work of the poor litigants would be distributed among the Panel of Lawyers constituted in consultation with the Bar Association.

The Co-ordinator / Director would organise the opening of the Legal Aid Clinics in the remote villages of the Polonnaruwa District.

After the opening ceremony a Legal Aid Awareness Program and a Prison Program would be conducted by the Legal Aid Commission Lawyers from Colombo and Polonnaruwa.

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Disclaimer

The answers to questions are the legal views of individual lawyers and the legal aid commission only compiles them for the Daily News Legal Aid Page.

Send in your questions to:

The Daily News Legal Aid Page

Chairman ,

Legal Aid Commission,

129,

Hulftsdorp Street,

Colombo 12.