Introduction: Contingency fees for Legal Aid

Some time ago the Legal Aid Sub Committee had recommended to the Bar Council through the President and the Executive Committee of the Bar Association that in order to overcome the continuing financial crisis of the two main Legal Aid providers in Sri Lanka, the Legal Aid Foundation of the BASL and the Legal Aid Commission, these Institutions should be exceptionally permitted to tax, part of the monetary awards obtained through the Legal Aid Services provided by the two Institutions. The ethics committee of the Bar Council would regulate the applicable amounts.

Access to justice unhindered by economic constraints is paramount to ensure equality before law as provided for by the Fundamental Rights Chapter in the Constitution. Legal Aid to indigent litigants is considered as a fundamental human right.

Unfortunately in Sri Lanka the State has avoided this responsibility until recently and palmed it to the Private Bar. Legal Aid Legislation of 1978 needs comprehensive revision.

Meanwhile, as an immediate measure to redress the current legal aid financial crisis, the Legal Aid Commission proposes that Rule 17 of the Supreme Court (Code of Etiquette for Attorneys-at-Law) Rules (Gazette Extraordinary of December, 1988 should be amended to permit the Legal Aid Commission to charge regulated Contingency fees as the main Legal Aid Institutions of the country.

The individual Attorneys-at-Law who receive honoraria for legal aid from these Institutions could be paid from the taxed awards. The scheme could be subject to the supervision of the Supreme Court and the Ethics Committee of the Bar Council.

Rule 17 reads:

'An Attorney-at-Law shall not take champertous, advantage of his client in any professional matter in which he had been retained'.

This Rule should be amended by the addition of a sentence. 'The Legal Aid Commission would be exempted from this Rule and they will be entitled to tax a portion of the damages awarded as determined by the Advisory Council of Legal Aid Commission chaired by the Chief Justice.

The Rule against Champertous arrangements originated in English Law, but England herself has changed the rules to benefit Legal Aid providers a few years ago. Further, the International Bar Association provides in rule 18 states 'A contract for a contingent fee, when sanctioned by law or the professional rules and practice, should be reasonable under all the circumstances of the case, including the risk of uncertainty of the compensation and subject to the supervision of a court as its reasonableness'. The international trend is to permit Pactum de quota lts for legal aid institutions under strict supervision should be permitted in Sri Lanka.

In view of the financial crisis faced by the legal aid providers and the indigenous litigants in procuring expert witnesses especially in accident cases, we have to plead with Supreme Court to review Rule 17 like in the United Kingdom.

Message from LAC Chairman

This week we are celebrating the 1st Anniversary of "The Daily News Legal Aid Page". We make it an occasion to thank numerous partners including senior lawyers, Government Departmental Heads from pensions, Immigration for kindly cooperating with the Legal aid Commission for providing answers to the numerous questions raised by Legal Aid Page readers.

The questions were mostly related to day to day legal issues in life of the citizens and the answers only provided practical legal guidance.

The Legal Aid Page, answers not only aims at benefiting the persons who sent the questions but also to provide legal awareness to others who had similar problems.

Even though, the LAC provides free legal representation assistance for deserving indigent Sri Lankans, a means test was not applicable in providing legal advice in the Daily News Legal Aid Page. The page aims at enhancing legal awareness of the general public. The LAC plans to publish the questions and answers in a book form in the near future.

The Legal Aid Page did not confine to the dissemination of advice and information to court based litigation. As a major part of legal aid services, LAC encourages Alternative Disputes Resolution forms such as negotiations, mediation conciliation and arbitration.

The CDN Legal Aid Page provided assistance in ADR subjects. The LAC's 15 Developmental Legal Aid Desks on legal training, elders, children, women, consumer protection, migrant workers, labour relations assisted the CDN Legal Aid Page in responding to question relating to these specified subjects.

We thank the Chairman and the Board of Directors of ANCL, the Editor and Sub-Editors of the CDN for actively supporting to sustain the page for the last one year.

We hope we will be able to continue this legal service to the people in 2007 as well.

The Daily News Legal Aid page celebrates its first anniversary on January 13.

S.S. Wijeratne

Developmental legal desk 5 Disabled Persons Desk

The Legal issues arising out of being differently abled (disabled) are purely humanitarian and applies to all societies in the world. The disabled whether mental or physical, unless actively assisted are prevented from developing their full potential as human being. The differently able are also victims due to social prejudice against them.

The UN Convention on the rights of the disabled unanimously adopted by the UN general Assembly last week would be translated to Sinhala and Tamil for the benefit of the general public.

The Legal Aid Commission has set up the Disabled Persons Legal Aid Desk in order to ensure the following:-

* To help win the rights guaranteed to disabled Persons under the Protection of Disabled Persons Rights Act No. 28 of 1996.

* To provide free legal advice regarding maintenance, accident claims, loss of property and fundamental rights of destitute disabled persons.

* To create an awareness on the subject among community and school children on the rights of disabled persons.

* To launch joint programs in collaboration with the National Secretariat for Disabled Persons in the process of disabled Persons Empowerment.

The Legal Aid Commission Disabled Desk with its 33 regional centners islandwide conducted a number of programs to promote awareness among the community regarding the rights of the disabled and to stop discrimination of the disabled. Special programs were arranged to mark the "International Day of Disabled Persons".

A major focus of this day is practical action to further implement international norms and standards concerning persons with disabilities and to further their participation in social life and development on the basis of equality.

The Desk is headed by Attorney-at-Law Kalani Medagoda who has conducted several programmes to create awareness on the subject among community and schoolchildren on the rights of disabled persons who has also published a booklet on disabled persons.

Kalani Medagoda, AAL is also responsible for compiling the 'Daily News Legal Aid Page' for the past one year.

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Questions and Answers

Debt Conciliation Board and its functions

Question: I have a problem with the repayment of a loan raised on a mortgage. Is there any institution or department to intervene and provide relief? Kindly advice through your Daily News Legal Aid Page.

Kamala Piyaseeli, Nattandiya.

Answer: If you have a problem with the repayment of a loan raised on a mortgage or a conditional transfer of your -

1. House and property

2. Estates; or

3. Agricultural land, both highland and lowland.

The Department of the Debt Conciliation Board is always ready to help you, irrespective of the magnitude of your problem. It is evident that when it comes to the repayment of money borrowed in an emergency, by hypothecating or, conditional transfer of property at whatever rate of interest or at whatever conditions, most people are compelled to face serious economic difficulties in repaying the money borrowed together with interest thereon, before the expiry of the period of hypothecation or the conditional transfer.

There are numerous instances where owing to the inability to redeem the property concerned very valuable property is forfeited for a paltry sum and consequently the borrower has lost his only property in this manner. One significant reason for the perpetuation of this state of affairs is the average person's ignorance of the terms and conditions that may be embodied in a deed. If you need any assistance, you may kindly contact -

The Secretary,
Department of Debt Conciliation Board, 428/11,
Weera Denzil Kobbekaduwa Mawatha, Battaramulla.

Tel. Nos. 2865477, 2865488.

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Is there any institution in Sri Lanka for training of mediators?

Question: Is there any institution for training of mediators?

G. Dominic, Battaramulla.

Answer: Yes. We have Alternative Disputes Resolution Institute (ADRI). This institute train mediators throughout the country. The ADRI has special programmes for the training of Grama Niladharies as mediators.

If you wish to train yourself as a mediator, you may write to them along with your CV to the following address: The Registrar, Alternative Disputes Resolution Institute, 61, Carmel Road, Colombo 3. Tel. No. 2438478.

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No prescriptive rights against a State land

Question: We have been the only tenants for the past 56 years of a premises on crown land that had been alienated on a lease of 99 years, commencing 1st January 1950.

We still pay the rent and maintain all assets on this premises while the owners have done nothing for over 40 years. I wish to know what legal steps I could take in order to transfer the residue unexpired period of the above lease in our favour.

Telly Perera, Ja-Ela.

Answer: According to your question, it is very clear that you are occupying the said crown land on a lease of 99 years. Therefore, after completing 99 years you have to hand over vacant possession to the lessor (the Government). You have no course of action to file against the lessor and you have no prescriptive rights against a state land.

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Address needed to file a divorce action

Question: I am an impoverished 80-year-old Government pensioner, I am compelled to place the following distressing facts before you and plead for your benevolent assistance and legal advice.

After 16 years of married life in December 2004, my daughter-in-law maliciously deserted her husband (my son) and her two sons aged 17 and 12 years.

This intrigue and betrayal was the culmination of a clandestine affair, she has had with another married man.

As my son was in a quandary he was compelled to entrust the two children to me and my wife's care. They were also in a desolate and bleak state, with forlorn despair, in a traumatic and emotional condition. With the love, care and affection of my wife, we have rehabilitated them to a certain satisfactory and convivial state.

Thus, during the last two years, though my son was in a bewildering state he has tried his utmost for a reconciliation. But this delinquent woman's unethical and immoral obstinacy do not permit a rehabilitation. Under these depressing circumstances he compelled to seek a divorce from her.

He has consulted an Attorney-at-Law. His advice is that without her address it is not possible to proceed legally with his plea. If this is a legal stalemate I shall be very thankful if you can advice me how my son should proceed legally to obtain a divorce from his wife, who is now a vagrant, a vagabond and fugitive.

I am extremely sorry to trouble you with this long episode and beg to be excused for any inconvenience caused to you.

M. S. C. Nanayakkara, Dehiwela.

Answer: In terms of Section 19 (2) of the Marriage Registration Ordinance and its amendments, 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.

According to your letter your son could file a divorce action against his wife on the following two grounds:

* malicious desertion

* adultery or both

Also under a divorce your son has the right to get the custody of his children. However your son has to find out the correct address of his wife to sue her. Without the address your son cannot file a case against her.

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Will second legal wife be entitled to receive W&OP payments?

Question: My husband's first wife has died in 1996 when he was a pensioner and he had no children by that marriage. He then married me in 1998. I have the Death Certificate of his first wife and also my marriage certificate. He is with me.

Please be kind enough to let me know what steps I should take now for me to become entitled for W&OP payments after the death of my husband.

Awaiting to hear from you.

D. Jayasekera, Ja-Ela.

Answer: Under the pension circulars and minutes, only the first wife is entitled to the W&OP payments and if the 1st wife has died or divorced before getting the pension, then the second wife is entitled to his pension.

Further if the pensioner gets married, then the 2nd wife is not entitled to the pension. If the pensioner has already contributed to the W&OP fund, he himself can refund such amount after the death of his first wife if he has no children.

With regard to your question, you have married a pensioner and as such after the death of your husband, you are not entitled to his pension.

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Consumer rights under Consumer Protection Act

Question: I brought a bottle of perfume from a leading supermarket in Negombo with a good brand name. After using this perfume my skin started to irritate. I went to see a doctor and when he questioned me as to what perfume I was using, I told him the brand name and the place where I bought the bottle of perfume.

What the doctor told me was that the perfume which I used affected my skin. I have the doctor's medical report and also the bill from the supermarket where I purchased the bottle of perfume. Can I report this matter and where should I make the report?

A customer from Negombo

Answer: Under the Consumer Affairs Authority Act No. 9 of 2003, the Authority may take necessary action for the protection of the consumer against manufacturers and traders in respect of labelling, price marking, packeting, sale or manufacture of any goods.

The consumers can make complaints to the Authority against the manufacture, supply, storage, transportation and sale of goods or provisions of services where standards specified by the Authority have been violated.

The complaint should be made to the Authority in writing within three months of the sale of such goods or provisions of such services with the necessary documents such as photocopies of receipt, medical report, etc. At the time of inquiry original documents have to be produced.

You may send your complaint to the following address by registered post: The Consumer Affairs Authority, 1 and 2 floors, CWE Secretariat Building, Vauxhall Street, Colombo 2.

Or send in your complaint to - The Legal Aid Commission, Consumer Protection Unit, 129, High Court Complex, Hulftsdorp Street, Colombo 12. Contact person: Ms Lasanthi Palapaththwala, AAL. Tel. Nos. 5335329, 5335281.

Legal Aid Commission centers in Sri Lanka

Centre & Telephone Numbers 1. LAC Head Office - 2433618, 5335281 2. Tsunami Regional Centre - 034-5628860 3. Welikada Prison - 011-5335329 4. Bandarawela - 057 2224733/057-5621048 5. Matale-060-2664588/071-4447151 6. Avissawella-060-2362219 7. Ratnapura-045-2226899 8. Negombo-031-2222221 9. Kalutara-091-5624693 10. Gampaha-033-5677998 11. Polonnaruwa-027-2222293 12. Anuradhapura-025-2224465 13. Kandy-081-2388978 14. Kurunegala-037-2229641 15. Galle-091-2226124 16. Hambantota-047-2221092 17. Nuwaraeliya-052-2235260 18. Moneragala-055-2276191 19. Ampara-063-2223496 20. Kegalle-035-2231790 21. Chilaw-032-5672457 22. Akkaraipattu-067-5676542/067-5676533 23. Balapitiya-091-2255753 24. Matara-041-2233815 25. Vavuniya-024-2221899 26. Trincomalee-026-2222293/026-5676023 27. Kalmunai-067-2223710 28. Jaffna-060-2212671/0777-735910 29. Batticaloa-065-2226359 30. Panadura-038-5677100 31. Kuliyapitiya-060-2876323 32. Mahiyanganaya-055-2258332 33. Mahawa-037-2275075 34. Horana- ...........