Introduction-Media and Equal access to justice

THE DAILY NEWS Legal Aid Page will complete its first anniversary on 13th of January 2007. As country's only statutory legal aid provider, Legal Aid Commission (Law No. 27 of 1978) would like to thank in advance the Editor, Ceylon Daily News on whose initiative the Page was started and Chairman and the Board of Directors of ANCL for the support given to sustain the 53 issues of the page.

Thousands of letters received from the public seeking advice to their legal problems is testimony to the public service rendered jointly by the Ceylon Daily News and the Legal Aid Commission through the Legal Aid Page.

The media is the most important medium of legal education of the public in Sri Lanka. The Sri Lanka Law College and Law Faculties of several Universities train lawyers and legal academics. But in a country where the Rule of Law is expected to prevail the general public who encounter legal issues from birth to death should have a modicum of general legal awareness.

The best way to start this process is to introduce legal studies as a subject in the school curricular. The LAC has developed a dialogue on this issue with the Minister of Education who himself is a respected lawyer. But the recent decision to shunt out Non-Governmental Organizations from providing legal awareness in schools is a retrogressive step in the wrong direction.

Even though, the LAC is an independent Commission supported by the Government and the Bar Association and exempted from the new circular, the LAC has to express concern on behalf of the Non-Governmental legal aid providers.

The widespread legal illiteracy of the general public is heightened by the equal ignorance of grass root officials. Grama Niladharis, Samurdhi Niladharis or even members of the Mediation Boards who are expected to be better informed.

Grama Niladharis who are service providers to Mediation boards received copies of relevant enactments for the first time in their lives during the three day training programmes jointly conducted by the LAC and ADRI. 98% of 2,500 Grama Niladharis who have been trained have never seen the basic law of the country, the 1978 Constitution.

Whatever the legal knowledge they have acquired had been through the print and electronic media and the country owes a debt of gratitude to the media.

It is also the media that acts as sentinels of justice and highlights when unequal and discriminatory practices victimize the poor. The effects may be marginal but an absence of responsible media scrutiny would make matters worse.

Compared to some countries in South Asian countries, Sri Lanka has managed to maintain a certain level of credibility in administering justice. A major part of the credit should go to the ever vigilant media of the country. But the media should exercise the sentinel function with a great sense of responsibility.

The Daily News Legal Aid Page will celebrate its first anniversary on January 13. Your views and suggestions are warmly welcome.

S. S. Wijeratne

Developmental legal desk 4 School Programmes Desk

The primary objective of this Development Legal Aid Desk would be to promote legal literacy in school in coordination with the Ministry of Education. Several surveys conducted by the LAC have revealed that there is widespread agreement for the inclusion of basic principles of law in the school curricular.

The current legal illiteracy rate of the society could only be remedied through legal awareness programmes linked to the education system and the publication of legal literature by way of booklets and pamphlets.

The School Programmes Desk is headed by Yamuna Kumari, AAL who is making arrangements to hold the prize-giving for the National Eassy Competition on the subject of "The Human Rights and Duties".

The essay competition was jointly arranged with the LAC and the Ministry of Education in Sinhala, Tamil and English medium. The objective of the essay competition was to emphasize the need to respect duties as well as rights.

The LAC in coordination with the Principals of relevant Schools have commenced forming "Law Circles" from among the interested senior students.

The objective of school law circles is to provide a distribution point for legal literature and arranging discussions on legal subjects of general interests. Law Circles have been established in schools in Anuradhapura, Alawwa, Kandy, Matara, Hakmana, Ratnapura and the Kurunegala educational zones. For further information, please contact:

 

Yamuna Kumari, AAL
Head of School Programs Desk
Legal Aid Commission
129, High Court Complex
Hulftsdrop Street
Colombo 12
Tel. No. 5335281

Questions and Answers

Victims of crime

Question: What are the rights of victims of crime?

S. Sufiyan, Mattakkuliya.

Answer: Maintaining law and order in a society is the primary obligation of a State. When a crime is committed, it is that the State has failed to discharge its duties effectively. In that context the responsibility of a victim should be with the State. The rights of victims of crime are -

* Right to be treated with fairness, compassion and with respect for the victim's dignity and privacy.
* Right to be treated in response to age, gender, language, ethnicity, etc.
* Right for compensation and restitution.
* Right to demand a fair and speedy trial to punish the offender and to obtain redress.
* Right to be protected from intimidation of perpetrators.
* Right for information.
* Right to be heard.
* Right to offer information.
* Right to be present at all public court proceedings.
* Right for legal, socio-medical assistance.
* Right to privacy.

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Who is responsible for the filing of a testamentary case?

Question: If a person had died without leaving a Last Will, how can the family members acquire his property? Further if such person's wife or husband is not alive, who is responsible for the filing of the testamentary case?

M. Murugesu, Kotahena.

Answer: Under Section 525 of the Civil Procedure Code, when any person shall die in Sri Lanka without leaving a Last Will, it shall be the duty of the widow, widower, or next of kin of such person, if such person shall have left property in Sri Lanka amounting to or exceeding in value of Rs. 500,000, within one month of the date of his death to report such death to the District Court of the district in which he shall have so died, and at the same time to make oath or affirmation or produce an affidavit verifying the time and place of such death and stating if such is the fact, that the intestate has left property within the jurisdiction of that or any other, and in that event what Court, and the nature and value of such property.

The next of kin means, wife/husband or children of the deceased person. If the deceased has no children or the children are not alive, the parents of the deceased, if not his brothers and sisters can file a testamentary case to acquire his property.

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How to file testamentary - Last Will cannot be traced

Question: My father died three weeks ago. I understand that he has left a Last Will. However, I cannot find his Last Will. The value of his property exceeds Rs. 500,000. What shall I do?

S. Peter, Kotte.

Answer: If you had come to know that your father had left a Last Will, you should first search his personal documents. Normally if a person writes a Last Will, the original of the Last Will will be in his custody and a copy will be with his lawyer or the notary and it is the duty of the lawyer or notary to submit the Last Will to court after the person's death. If not, you have to ask your father's close friends whether they have signed as witnesses to the Last Will.

According to your question you are unable to trace your father's Last Will. In that case it is better to write a letter to the Registrar of the District Court where your father's death took place explaining the above reasons.

Thereafter you can proceed to file a testamentary case. You have to follow the same procedure as to a person not leaving a Last Will. The deceased's next of kin have the right to file a testamentary case within one month of his date of death in the District Court of the district where the deceased died. At the same time you have to file an affidavit verifying the time and place of your father's death.

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Section 363 - Rape

Question: How do you define rape under the law?

A keen reader of the Daily News Legal Page from Moratuwa

Answer: According to the Penal Code and its amendments - Section 363, a man who is said to have committed rape, if he has sexual intercourse with a woman under following circumstances:-

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

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

(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 he believed that he is another man to whom she is or believed herself to be legally married.

(e) With or without her consent when she is less than 16 years of age unless the woman is his wife who is over 12 years of age and is judicially separated from the man. * Penetration is sufficient to constitute sexual intercourse in offences of rape.

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

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Pension No. 36565

Question: I married my late husband in January 1983. He was pensioner then. He passed away in November 2002.

I wrote a letter in February 2003 to the Pension's Office in Thimbirigasyaya requesting that my late husband's pension be paid to me. My late husband was married earlier but that wife died in 1980 and we got married in 1983. I submitted a copy of the Death Certificate and a copy of our Marriage Certificate.

I was informed by a letter written by the Divisional Secretariat, Thimbirigasyaya, that I am not entitled to my late husband's pension since he married me when he was already a pensioner.

I don't have any children and I am living alone. Since the cost of living is very high and I am now in need of medication for various ailments. I shall thank you to help me to get this pension through your kind intervention.

Mrs. L. R. Amarasekara, Mt. Lavnia.

Answer: Under the Pension Minutes and Circular, if the pensioner has married after getting his pension, the spouse is not entitled to his pension. However we forwarded your question to the Pension Department and they too is also of the same view.

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Documents to be submitted to the Pension Department by an unmarried person

Question: I am an unmarried person. I am due to go on pension. What are the documents I should submit to the Pension Department?

George Fernando, Chilaw.

Answer: The duly filled application issued by the Government Department together with the Affidavit stating that you are unmarried, your Bank Account No. and Bank Voucher and the letter informing that you are due to go on pension. The other relevant documents will be submitted to the Pension Department direct by the Head of your Department.

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Re: W & OP Fund

Question: I am an unmarried teacher receiving a pension. During my period of service as a Government teacher, I contributed to the W & OP Fund. How can I obtain the said benefit?

W. Wimala, Gampola.

Answer: You have mentioned that you are already getting a pension. If you are still unmarried, you can get your W & OP Funds.

You have to write a letter to the Secretary of the Accounts Branch, Widows and Orphans Pension Branch, Pension Department, Maligawatte, Colombo 12 explaining that you are unmarried and that you would like to get the W & OP Funds.

In this regard we advise you to send a letter by registered post and to keep the postal article receipt safely in your custody. In the event of a delay in receiving a response from the Pension Department, you can submit the registered postal article receipt.

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Is it necessary to put the arbitration clause in the agreement?

Question: I have decided to start a business with a foreign company. We have already drafted the our agreement. But we never included the arbitration clause in our agreement. I want to know whether it is necessary to include the arbitration clause before the parties sign the agreement.

If the agreement does not include the arbitration clause, can the two parties resolve the dispute through arbitration. What is the legal validity?

Tushantha, Negombo.

Answer: If you want to resolve your dispute through arbitration you have to include the arbitration clause in your agreement. The arbitration clause is mentioned in Section 5 - Arbitration Act No. 11 of 1995. Otherwise when the dispute arises both parties can enter a sub agreement to resolve the dispute through arbitration. Nevertheless you have to seek remedy in the court procedure.

In the case of business with the foreign company it is advisable to include the arbitration clause, because the arbitration award is enforceable internationally.

Legal Events

January 8 - Police Training Programme at Panadura

January 11 - LAC Annual Planning Meeting in Colombo

January 13 - Opening 34th LAC Centre in Horana

January 20 - Bench and Bar Programme in Nuwara Eliya

Disclaimer

The answers to the questions are the legal views of individual lawyers and the Legal Aide Commission only compiles them or the Daily News Legal Aid Page.

Please send in your questions in brief to -

The Chairman,
Legal Aid Commission,
129, High Court Complex,
Hulftsdrop Street,
Colombo 12.

Email: legalaid.dailynews@yahoo.com