Introduction- Good governance and rule of law

THERE have been many activities, conflicts, controversies and litigation in recent years relating to a range of matters that repeatedly raise issues of good governance, protection of human rights and upholding of the rule of law.

As we continually read about them, the factual circumstances may be new and different, yet the underlying root causes remain fundamentally the same and they continue to be cause for concern.

For instance, if we consider the recent sagas of the health workers stop work, the reason for which was that proper statutory and regularity processes were not followed diligently. Political leadership did not take control.

Secondly, representatives of all the parties similarly did not exercise enough diligence and discretionary competence in out-of-court dialogue and mediation. The issues were always eminently reconcilable. They required leadership at all levels.

All these social disputes have to do with diligence, competence and integrity in process management by institutional leaders.

The majority of administrative disputes do not ever need to go to court. They are eminently resolvable with diligent and meaningful dialogue, mediation and reconciliation.

The management of the conciliation and arbitration processes leave a lot to be desired. These processes and discretionary initiatives require leadership skill and competence.

Far too often, executive administrative managers, leaders and lawyers do not have the skill nor the experience to exercise these initiatives and discretion at the earliest opportunities.

So issues and differences escalate out of proportion and are taken to court unnecessarily incurring expense and taking a lot of time.

Court proceedings are adversarial in nature with a winner and a loser. Working relationships are adversely affected which then take a long time to repair.

These matters raise ongoing issues of good governance and accountability. They also directly raise issues of upholding of the rule of law. There is continuing concerns about the efficiencies and effectiveness of our governance mechanisms and processes.

An on-going concern in our governance process management is our deficiencies in upholding the rule of law; and in particular, serious concerns within our law enforcement agencies in relation to our poor record in protecting human rights.

Protecting and respecting the human rights of citizens and upholding the rule of law are critical issues of good governance in developing countries, as indeed they are in all countries.

They become more prominent in developing countries because international donor agencies and bilateral aid partners insist on them as minimum preconditions for aid and development funding.

Many continue to pay lip service to public institutional accountability, transparency and compliance with the rule of law, but in fact, do little to truly exact disciplinary accountability and transparency.

We believe that if the political executive and senior executive leadership are truly serious about administering governance transparency and accountability respecting human rights and upholding the rule of law, many current public sector disputes that so frustrate efficient and effective service delivery and provision of competent advice, need not occur at all.

This is what is meant by good governance, transparency, accountability and the rule of law. We have got to improve our overall act, in good governance, if we are going to have international credibility and support. Based on a speech by Justice Arnold Amet.

Legal Aid Desk - No. 11 - Prison Unit

The Legal Aid Commission has established a legal aid unit within the Welikada Prison premises in coordination with the Prisons Department.

The objectives of this unit are.

* To provide free legal advice regarding civil and criminal offences.

* To provide free counselling services to the prisoners.

* To give free legal aid to prisoners.

* To arrange awareness programs for the prisoners and the prison officers.

* To arrange awareness programs for the prisoners and the prison officers.

The Prison Unit is headed by T. Sakunthala Karunasinghe, Attorney-at-Law who has conducted a number of prions programs for both the prisoners and prison officers.

Alternative Dispute Resolution Institute (ADRI) and Legal AID Commission of Sri Lanka (LAC):

Training of trainers programme on mediation (Supported by The Asia Foundation)

* Seven day Training Programme by National and International experts to train 35 Mediator Trainers.

* Applicants should be Professionals or Retired Public Servants who could travel to all parts of the island to train Grama Niladaris in Mediation techniques and Legal issues.

* 50% pf the selected applicants should be fluent in Tamil and English. The training would be conducted in English.

Venue: Adri Center, 61, Carmel Road, Colombo 3.

Contact persons: Alternative Disputes Resolution Institute - Binupa - 2438478

Fax: 2438478

Email: adri_srilanka@yahoo.com

Legal Aid Commission - Zenia - 2395894

Fax: 2395894

Email: legalaid.dailynews@yahoo.com

Closing date: 30th March 2007.

Legal events: Celebration of International Women’s Day - March 8

08.03.07 - Programme at Kolonnawa Balika MV (Main programme)

06.03.07 - Programme at Divisional Secretariat Office at Gangavata Korale

06.03.07 - Programme at Kawarakkulama

08.03.07 -Programme at Divisional Secretariat Office at Kiriella

08.03.07 -Programme at Mahanama National School Monaragala

Questions and Answers

Is Registration of Marriage necessary?

QUESTION: Kindly let me know whether registration is necessary in a marriage?

J. GODAGE - MAKOLA

ANSWER: Registration of marriages is not mandatory under the Ordinance. An entry made in the marriage register is simply the “best evidence” of the marriage.

Thus, customary marriages, including those solemnized according to Hindu, Buddhist and Christian rites and rituals, have been accepted as valid despite the fact that they are unregistered.

The law recognises a rebuttable presumption of marriage by habit and repute. Thus, upon proof that a man and woman have cohabited as husband and wife, the law presumes that they are living together in a valid marriage, unless the contrary is proved.

Courts have emphasized the cohabitation does not conclusively prove the fact of marriage, thus emphasizing the rebuttable nature of the presumption.

Pensions entitlement for prisoners

QUESTION: One of my friends was convicted of attempted murder. Now he is serving his prison sentence at the Welikada prison. At the time when his sentence was passed he was a pensioner. I want to know whether he is entitled to receive his pension.

B. GEMUNU - RAJAGIRIYA

ANSWER: We discussed your matter with the Pensions Department.

Under the Pension Minutes and Circulars when the pensioner gets imprisoned then his pension too ceases. But after imprisonment period is over, he can make an appeal to the Secretary of Public Administration and Reforms explaining the reasons. Thereafter there is a possibility of obtaining his pension.

Insurance Ombudsman Award

QUESTION: The Insurance Ombudsman awarded a sum of Rs. 100,000 as full settlement on an ex-gratia basis instead of Rs. 28,000, paid up value. The Insurance Company is still compelling to accept the paid up value. Could the Board of Insurance enforce the Ombudsman’s award?

PREMASINGHE GUNARATNE -

VIA EMAIL

ANSWER: The Board of Insurance cannot enforce the Ombudsman award. But they have to respect the Ombudsman award. However, you have to inform the current situation to the Insurance Ombudsman under the following address.

Dr. Wickrama Weerasuriya, Insurance Ombudsman, (Insurance Disputes, 143/A. Vajira Road, Colombo 5. Tel No. 2595624

Breach of contract

QUESTION: Five households jointly entrusted a construction work to a contractor to put in an additional structure individually to each of the five households, as far back as September 2006.

Having received the full payment of the contract from the five households, under acknowledgement of receipt, the contractor has failed to fulfill the contract, leaving a portion of the work incomplete.

Several reminders to this contractor have fallen on deaf ears and he has not shown any concern of completing the work.

This situation has caused a pain of mind to all of us. Since we all have receipts for the payment he received from us as per the description of the work undertaken, can we take police action collectively, to recover the cost of the construction left incomplete or to get him to complete the work undone through the intervention of police Authorities?

For and on Behalf of the five Households.

B. ROBIN FERNANDO -

COLOMBO 09

ANSWER: All five households can make a complaint to the police and at inquiry you can arrive at a settlement if the parties agree. Otherwise you can seek relief through court procedure.

In your query, you have not mentioned whether your agreement is a written one or not. If it is a written agreement, you have to file action within six years of the violation of the agreement.

If it is a verbal agreement, you have to file a case in the courts within three years of the breach of contract. Under the Contract Law if the contract is violated you can file a case in the District Court situated where you signed the contract.

How do I amend my Marriage Certificate?

QUESTION: I am living in Colombo but we got married in Galle. My name in my Marriage Certificate is incorrect. I face a lot of difficulties due to this error. I want to amend my Marriage Certificate. How do I do that?

P. SURESH,

COLOMBO 10

ANSWER: If you want to amend your Marriage Certificate you have to file a case in the District Court where you reside. You have to meet a lawyer and via a Motion you can do it easily.

The Registrar General will be the other party. It is not a question where you got married. The Registrar General will get the information and help you to amend the case via Court procedure. If you need any assistance in this regard, kindly call on us.

Submitting true information of bribery in a confidential manner

QUESTION: In most cases when we want to get some services from a Government Department, we have to give bribe to them. Otherwise we have to spend more time to get that work done.

The Land Registry is one such example. People are compelled to give bribes to get their work done quickly. I am a person who is against taking or giving bribe.

Is there any Authority or Department where complaints of this nature could be made secretly? I do not like to go to Courts and give evidence. But I am able to submit information.

RANAWEERA,

 PANADURA

ANSWER: It is your duty to submit true information regarding cases of bribery. It is also you’re to bring such cases to the notice of the relevant authority.

Under the Bribery Act No. 11 of 1954 and its Amendments, taking a bribe or giving a bribe in any Government Department 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, Malalasekera Mawatha,Colombo 7. Hot Line 2586257

Bribery Commission treats all information as confidential. If you need any further clarification, you may contact our Anti-corruption Legal Aid Centres islandwide. The Legal Aid Commission Head Office has set up a Zero Corruption Bureau where you can make a complaint. They will keep all your information in a confidential manner.

Zero Corruption Bureau, The Legal Aid Commission, No. 129, High Court Complex,

Colombo 12, Tel. 011-5646550.

Can I get my pension abroad?

QUESTION: I have decided to retire from the Government Service next month. Thereafter, I hope to go abroad as all my children are living in Australia.

Can I get my pension while living abroad? Please let me know through your Legal Aid Page. Your valuable service to the public is very much appreciated.

F. FRANK,

KEGALLE.

ANSWER: The Pensions Department has introduced the system to get the pension from abroad. In such a situation your pension file will be maintained by Director of the Pensions after receiving the file from the Divisional Secretary.

If you decide to get permanent residency in that country, you can apply the same procedure. If you need further information you can contact us or the Director of Pensions, Pensions Department, Maligawatte, Colombo 10 or you can visit their Website www.pensions.gov.lk

Disclaimer

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

Please send your questions in brief to - The Chairman, Daily News Legal Aid Page, Legal Aid Commission, No. 129, High Court Complex, Hulftsdorp Street, Colombo 12, Email: legalaid.dailynews@yahoo.com.