Introduction- Legal Aid for Development (DLA)

The Developmental Legal Aid (DLA) was conceived and pioneered in the Philippines by attorney Jose W. Diokno. The background was the repressive regime of Ferdinand Marcos where traditional litigation based legal assistance was rendered meaningless in the context of Martial Law.

The predictable judiciary and draconian Presidential proclamations of Martial Law were themselves, the biggest obstruction to justice. Access to justice through legal assistance in individual cases was grossly inadequate. Inequitable laws and unfair judges were a systemic problem and called for changes.

The ambit of Legal Aid needed to be expanded to include the affected communities as a whole and extend legal aid to include legal advocacy through and outside the courts system.

Attorney Jose W. Diokno published two seminal articles in 1980 titled Developmental Legal Aid in rural ASEAN and Legal Aid and Development and the movement of developmental legal aid was launched in the Philippines. Today over twenty three DLA organisations are operating in the country.

In the context of Sri Lanka, which is similar to the Philippines in many aspects, economy, literacy, geography and embroilment in a long standing armed secessionists movements, launching of a DLA programmes is bound to result in fundamental changes in the approach to traditional legal aid.

The DLA will succeed in addressing certain societal injustices as has happened in the Philippines. DLA programmes which focus attention on the community, as a legal aid beneficiary would galvanize the community to organise in to advocacy groups not only to ensure that Rule of Law prevails but also to be a catalyst in changing the law when necessary.

Law, in addition to be the embodiment of human values and regulator of human conduct, would also perform the progressive role of an instrument of societal change. Vulnerable and underprivileged groups in Sri Lankan society such as the elderly, battered women, abused children, migrant women workers, marginal farmers and fishermen and internally displaced persons could be the beneficiaries of Developmental Legal Aid Programmes.

Traditional legal aid, which concentrates on providing legal assistance to individual indigent litigants within the confines of the existing law and the judiciary, could be distinguished from the DLA in many respects.

Traditional legal aid is oriented towards individual litigation whereas the DLA would undertake individual cases which would have societal impact. The causes of action for which the DLA undertake to provide legal aid or advocacy assistance should address the root causes of the legal anomaly intended to be rectified.

In other words, socio-legal change and development would be the primary objective of the Developmental Legal Aid.

Unlike in the traditional legal aid where the lawyer is the prima donna of the whole process, in Developmental Legal Aid the community would be empowered to develop and control the process with the lawyers playing only supportive roles. Jeffrey L. Falt has summarised the distinguishing characteristics the two systems of legal aid as follows:- The Legal Aid Commission has set up Developmental Legal Aid Desks to cover subjects of women, children, human rights, consumer affairs, elders, anti-corruption, persons with disabilities, internally displaced persons, prisoners, school students, industrial disputes and environmental.

Legal Aid Lawyers heading these desks are specially trained to intervene legally when larger issues affecting these vulnerable groups prop up. The DLA desks publish pamphlets and conduct island wide awareness campaigns. The public has responded positively.

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Traditional Legal Aid Developmental Legal Aid

01. Representation of individual Emphasis on collective demands and claims of an interpersonal nature group interests.

02. Limited to formal judicial area Aggregates individual claims into collective demands.

03. Models of advocacy limited to Wider role for lawyers, assist small preparation of pleadings and oral transactions, counselling on legal pre- representation in court. requisites to establishment of credit co-ops, tenants organisations, model legislation or administrative regulations to enhance an access of the under privileged to social and economic benefits.

04. Reactive; passively awaiting clients Proactive; decentralise clinics to enter the office although studies physically located in poverty show that most poor people are communities so that lawyers will unaware of the existence of such become familiar with the basic needs services. and concerns of the poor and will actively seek out community grievances and advocate their remedy.

05. Office intake interview discourages Encourages exchange and discussion frank discussion of underlying and, ultimately, a delivery system which problems impacting the includes the participatory involvement community. of potential beneficiaries and encourages self-help.

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Questions and Answers

Can I file a motion and get tribunal to give notice on witness compelling him to be present to give evidence

Question: I have filed a case against my employer company in the Labour Tribunal. A witness called by me gave evidence on my behalf. He was cross-examined but cross-examination was not concluded. The witness does not want to come for further cross-examination.

The learned counsel for the employer company has moved that the evidence of this witness be struck off. The case was postponed at this stage. My representative will have to make his submissions on the next date. The evidence given by the witness so far is good and favourable to me. My representative states that be cannot object to the application. I am worried. Please let me know -

1. Whether I can file a motion and get the tribunal to give notice on the witness compelling him to be present to give evidence.

2. Whether my representative can object to the application of the employer's lawyer to have the evidence of my witness struck off.

-Godfrey de Silva, Nugegoda.

Answer: 1. When you file a motion, the Tribunal would serve notice on the witness. Section 36 (1)(b) of the Industrial Disputes Act provides for the Tribunal to require any person to give evidence on oath or otherwise. But failure to comply with the notice of the Tribunal is not a punishable offence. The Tribunal cannot therefore in law compel the witness to be present before it. You may file a motion and try your luck.

2. Your Representative can object to the application of the employer's lawyer.

The Tribunal will have to consider the evidence recorded. In the case of Walker Sons and Co. Ltd vs D. A. Perera (C.A. 62/90) decided on 01.06.92, Justice H. W. Senanayake set aside an order of a Labour Tribunal which ordered compensation to a witness without considering the evidence of the witness respondent company who was cross-examined but cross-examination was not completed.

This is a grave error which amounts to miscarriage of justice. There was a legal duty to consider the evidence where opportunity was given for cross-examination though not completed.

Payment of gratuity to personal chauffeur

Question: I am working as a Director in a private company. I have employed a personal chauffeur who has been working with me for nearly 20 years. I was paying his salary out of my own funds. He has informed me that he would like to retire by the end of September 2007 due to ill-health. Is he entitled to get gratuity under the Payment of Gratuity Act No. 12 of 1983.

- G. Tissera, Battaramulla.

Answer: It is provided in Section 7 of the Payment of Gratuity Act No 12 of 1983 that -

(a) if a workman is employed as a domestic servant or as a personal chauffeur in a private household or

(b) entitled to a pension under a non-contributory pension scheme.

Will not qualify for any gratuity. The chauffeur concerned was paid salary out of your own money and not from the company. In addition, he is not an employee of the company. He will therefore not be entitled to any gratuity under the Act. If he has been a loyal worker, you are free to make an ex-gratia payment which is not a legal entitlement.

What happens when employer defaults in the payment of contribution towards ETF?

Question: I understand where contributions payable under the EPF Act in respect of any month have not been made to the Fund before the last day of the succeeding month and the employer is unable to explain to the satisfaction of the Commissioner that the failure to pay such contribution was due to circumstances beyond his control, he shall be liable to pay to the fund in addition to the amount of the contribution due, a surcharge on such amount as provided in the Act.

Please let me know as to what happens when an employer defaults in the payment of his contribution towards the Employees Trust Fund?

If a surcharge is payable in addition to the contribution, what is the quantum that is payable as surcharge?

-Sent via email

Answer: Like the EPF Act, in addition to the amount of the contribution due, a surcharge on such amount is payable calculated in the following manner:

(a) where the contributions are in arrears for a period not exceeding 10 days, a surcharge of five per centum (5%) of the amount of the contribution due.

(b) where the contributions are in arrears for a period exceeding ten days but not exceeding one month, a surcharge of fifteen per centum (15%) of the amount of the contribution due.

(c) where the contributions are in arrears for a period exceeding one month but not exceeding three months, a surcharge of twenty per centum (20%) of the amount of the contribution due.

(d) where the contributions are in arrears for a period exceeding three months but not exceeding six months, a surcharge of thirty per centum (30%) of the amount of the contribution due.

(e) where the contributions are in arrears for a period exceeding six months but not exceeding 12 months, a surcharge of forty per centum (40%) of the amount of the contribution due.

(f) where the contributions are in arrears for a period exceeding twelve months, a surcharge of fifty per centum (50%) of the amount of the contribution due.

What records should a company keep and for what period?

Question: I am a senior executive employed in a leading firm in Sri Lanka. In the discharge of my various duties, I would like to know as to what are the records that a company should keep and for what period? An early reply would be greatly appreciated through your Daily News Legal Aid Page.

- Sarath Liyanage, Ja-Ela.

Answer: (a) The Certificate of Incorporation and the Articles of the Company - 10 years.

(b) Minutes of all meetings and resolutions of shareholders passed within the last 10 years.

(c) An Interests Register, unless it is a private company which is dispensed with the need to keep such a register.

(d) Minutes of all meetings held and resolutions of Directors passed and Director's Committees held within the last 10 years.

(e) Certificates required to be given by the Directors under this Act within the last 10 years.

(f) The Register of Directors and Secretaries required to be kept under Section 223.

(g) Copies of all written communications to all shareholders or all holders of the same class of shares during the last 10 years, including annual reports prepared under Section 166.

(h) Copies of all financial statements and group financial statements required to be completed under the Act for the last 10 completed accounting periods of the Company.

(i) The copies of instruments creating or evidencing charges and the register of charges required to be kept under Sections 109 and 110.

(j) The Share Register required to be kept under section 123; an

(k) The accounting records required to be kept under Section 148 for the current accounting period and for the last 10 completed accounting periods of the company.

Stamp Fee for an affidavit

Question: Please let me know the "Stamp Fee" for an Affidavit according to the latest regulations. Thanking you for your early reply.

-L.L. Leanage, Ambalangoda.

Answer: According to Stamp Duty (Special Provisions) Act. No. 12 of 2006, the stamp fee for Affidavit is Rs. 25. This came into effect from 06th October 2006.

Ombudsman in Sri Lanka

Question: I am a keen reader of your Daily News Legal Aid Page. I would like to know the names of the Ombudsman in Sri Lanka and the subjects they are dealing with.

- M. Pakianathan Colombo 8.

Answer: There are two types of Ombudsman, public and privately appointed Ombudsman. The names of Ombudsman in Sri Lanka and the subject they are dealing with are given below:

Dr. R.B. Ranaraja - Parliament Ombudsman
Mr. Walter Laduwahetty - Financial Ombudsman (Bank Matters)
Dr. Wickrama Weerasooria - Insurance Ombudsman

Questions regarding pension

Question: I am a keen reader of your Daily News Legal Aid Page. I would be grateful to you if you could answer the following questions. I await your kind reply to my questions.

(a) How do you contribute to Widows' and Orphans' Pensions Scheme?
(b) How can I be eligible for pensions?
(c) How can you obtain Widows' and Orphan's Pensions?
(d) Who can obtain Widows' and Orphans' Pensions?
(e) How do you become eligible for death gratuity?

- M. Deepal, Moratuwa.

Answer: (a) Officer appointed with a pensionable post has to fill form general 86 and should be sent to Secretary and Accountant Widows' and Orphans' Pensions Scheme Section, Department of Pensions, Maligawatte, Colombo - 10 with following correspondence:-

- Original birth certificate
- Original birth certificate of wife, if married
- Original birth certificate of children and original marriage certificate.

(b) 120 months unbroken service period in a permanent pensionable post.

(c) Request should be made to relevant Divisional Secretary with original Death Certificate of pensioner and Widows' and Orphans' Pensions number after the death of pensioner.

(d) Widow of pensioner/officer, unemployed unmarried female children who are less than 26 years, unemployed male children who are less than 26 years.

(e) Death gratuity will be paid to dependents of an officer who deceased and appointed to permanent pensionable post and had 60 months unbroken service period.

Procedure to adopt child

Question: I have decided to adopt a child who is an orphan. Please let me know the legal procedure that I have to follow to adopt this child.

- Tusharika, Hakmana

Answer: Every application for adoption must be in conformity with the provisions of the Adoption of Children's Ordinance (Chapter 61), as amended. The Sri Lankan Department of Probation and Child Care Service may, as needed, amend the adoption procedures.

Eligibility requirements for adoptive parents: Under Sri Lankan Law, adoption by single persons is not permitted. An application for adoption must be made jointly by a husband and wife.

Each of the applicants must be over the age of 25 years and not less than 21 years older than the child for whom the application is made. Both husband and wife must be present during the court proceedings unless the court waives personal appearances on the grounds of ill health.

No person shall on or after the appointed date, take or receive into his/her care, custody or control any child of whom he is not the natural parent, unless he has been registered by an authorized officer as the custodian of that child.

An authorized officer shall not register any person under this section has the custodian of any child -

(a) unless application is made to him in the prescribed form by the applicant for such registration.

(b) unless he considers it expedient, after such inquiry as he may deem necessary, in the interests of the child that the child should be placed in the care, custody and control of the applicant.

(c) unless the parents of the child consent, or in the case of an illegitimate child, the mother consents, in the presence of the officer, to deliver the child into the care, custody and control of the applicant; and

(d) where the child is over ten years of age, unless such child consents to such registration.

Provided however, that an authorized officer may dispense with the consent of any person whose consent is required under paragraph (C), if the officer is satisfied that the person whose consent is to be dispensed with is dead or cannot be found, or has abandoned, deserted or neglected the child, or has been adjudged by a competent court to be of unsound mind.

An authorized officer shall, upon the registration by him of any person as the custodian of a child, issue to that person a certificate of registration in the prescribed form, and transmit a copy of the certificate to the Government Agent of the district in which that person is resident.

If you wish to have further details, please contact one of our Legal Aid Centers established island wide.

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Quotations from judges

Judicial Appointment:

"The Judiciary, like other Australian institutions, is not representative of the various elements which make up Australian society. No doubt some elements in society, particularly minority groups, believe that they would have more confidence in our political institutions if they were more representative of the diverse elements in society.

But unlike the politician, the judge is not appointed to represent anyone. The Judge's paramount responsibility is to be impartial, and to decide the contest between the parties by applying the relevant principles of the law as the judge understands or enunciates them to the facts as found (Emphasis added).

Although it is desirable to make judicial appointments from a wider range of persons, this must not be allowed to divert attention from the necessity of having regard to the paramount criteria based on merit in making judicial appointments; professional qualifications, skill, experience and integrity.

Nothing is more likely to damage public confidence in the Judiciary than a departure from these criteria. It would set at risk the quality of the judges and the efficiency of the court system at a time when we are placing emphasis on the need for the courts to become more efficient.

As I have said before, the efficiency of the system depends very largely on the quality of the judges who sit at first instance. Lack of quality at that level only throws a greater burden on the appellate courts at greater cost to litigants.

That said, it would be desirable for the Judiciary to reflect to a greater extent than it presently does the composition of the community. No doubt the increasing number of women in the legal profession and in law schools means that we will see an increase of appointment of women of merit to the judiciary."

Sir Anthony Mason, C.J.
Australia
"The State of Judiciary"
Australian Law Journal Feb. 1994 Page 128
Quoted by A. R. B. Amarasinghe
Judicial Conduct, Ethics and Responsibilities P 700

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List of Developmental Legal Aid desks in Legal Aid Commission

Chairman - S. S. Wijeratne

01. Anti-Corruption Desk - Ms. Harshini Balaharuva, AAL

02. Apprentice Training Program & Bench & Bar Desk - Ms. Damayanthi Dissanayake, AAL.

03. Child Rights' Desk - Ms. Mahesha de Silva, AAL.

04. Consumer Protection Desk - Ms. Lasanthi Palapathwala, AAL.

05. Disabled Persons Desk - Ms. Kalani A. Medagoda, AAL

06. Elders' Right Desk - Piumi Kumari, AAL.

07. Human Rights Bureau - Acting Head, Mr. Nuwan Peiris, AAL.

08. Internally Displaced Persons Desk - Ms. Kirija Nimalatheva, AAL.

09. Migrant Workers Desk - Ms. Lilanthi Kumari, AAL.

10. Prisons Desk - Ms. Thushari Sakuntala, AAL

11. Protection of Women's Rights Desk - Ms. Priyangika Aththnayake, AAL.

12. Public Officers Awareness Desk - Mr. Reginold Kumarasiri, BA, MA, MSSC.

13. School Program & Essay Competition - Ms. Yamuna Kumari, AAL.

14. Labour and Environment Protection Desk - Mr. Dulan Weerawardena, Legal Officer.