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Eight objectives of Legal Aid Commission for 2008

At the beginning of a New Year it is customary for both individuals and organisations to set up objectives to be achieved in the coming twelve months.

Many of these objectives are never realised, sometime abandoned in few weeks or months. Vicissitudes of human life militates against over planing of the future as happened in many centrally planned countries in the ‘90s.

The LAC set up by Law No. 27 of 1978 to provide legal assistance to deserving persons would be completing 30 years in 2008.

The LAC, until recently did not receive sufficient resource support from the State to have a credible and comprehensive programme for legal empowerment of the poor in the country.

The situation has improved during the last two years when the number of legal aid centers has increased from 9 to 42. The latest center was established in the Juvenile Magistrate’s Court in Bambalapitiya in December 2007.

The LAC plans to establish 15 more centers in 2008, in remote judicial areas like Muttur, Mannar, Kantalai and Galgamuwa. Sri Lanka has approximately eighty-five court complexes in which legal aid should be available to the poor.

The LAC vision is to establish Legal Aid Centers in every court complex as the poor litigants residing in one area cannot seek justice in different courts due to reasons of jurisdiction.

In a meeting with the LAC, President Mahinda Rajapaksa suggested that the 30th anniversary of the LAC in 2008 should be celebrated with an international conference on access to justice. Our second objective for 2008 would be to organise such an event which has never happened in the world before.

The LAC will seek international co-operation to make this event a success. Despite the ambitious Legal Empowerment of the Poor (LEP) programme of the UNDP and World Bank with a high powered consultative process, the access to justice as a fundamental human right is yet to become a global concept.

The third 2008 objective of the Commission is to obtain the fullest co-operation of International Donor Agencies to complete the outstanding legal aid projects.

The LAC played a crucial role in the legal recovery of tsunami survivors which is not yet completed. The LAC thanks to the Asia Foundation, JICA and the ADB for the resource assistance for legal support for recovery.

However, one major omission had been the legal neglect of 3000 tsunami orphans who has fallen in between legislation and who remain legally unrecognised and unassisted. The LAC will join with Child Protection Authority to at least to rectify the situation.

The LAC by law is a non-profit making independent institution with six elected Representatives of the BASL who perform honorary functions with three nominees named by the Minister-in-charge of the subject of justice.

The LAC in 2008 would further strengthen this independent position which is the essence of the independence of the LAC.

The LAC through its development legal aid units would usher a programme of Meta-Legal Action to galvanise public support for needed new laws and more effective implementation of existing laws, i.e., Elders Protection Law, Domestic Violence Law, Tobacco and Alcohol Act and the new ICCPR Act.

The sixth agenda item of the LAC would be to expedite the pending legislation on victims and witnesses assistance and protection which is scheduled to come before Parliament in January 2008.

Already the LAC centers, under a MoU with National Center for Victims of Crime (NCVC) provide free legal representation to victims of crime in courts islandwide.

The main obstacle encountered by legal aid lawyers in victims’ representation is the absence of a specific national law to support their legal action.

The seventh and eight objectives of the LAC in 2008 is to obtain technical co-operation to establish a Closed Circuit Television (CCTV) at the Bambalapitiya Juvenile Court to facilitate traumatised minors to give evidence in safety and without adverse psychological after effects.

We will also need donor co-operation to establish a DNA testing lab at Hulftsdorp to help in the increasing demand for DNA testing in criminal and maintenance cases.

In 2007 nearly 60% of legal aid cases were maintenance cases where paternity was denied. The stranded poor women could not afford the fees charged by the Private DNA Testing Labs.

This facility should be available at reasonable fees when court orders such tests to be carried out.

S.S. WIJERATNE -
Email: sri.wijeratne@gmail.com

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True incident:

Co-ordinator, Elimination of Violence Against Women sexually harassed

“I am the Legal Officer in the Legal Aid Commission in charge of the Women’s Desk. I organised the ‘White Ribbon Campaign’ for 16 days dedicated to the elimination of violence against women from November 25, 2007. This included a religious ceremony to commemorate the Montreal massacre”.

“Despite combined UN and LAC efforts on the evening of January 1, 2008 between 4.30 p.m. and 5.30 p.m., I was subjected to harassment when I was returning home after work”.

“A young man who was obviously drunk and was standing near me in the bus clung on to me several times and when I looked at him with disapproval, he scolded me saying that “If I want to travel without men leaning on me, I should buy a Pajero for travel.”

Another young passenger inquired from me what was happening and was threatened by the perpetrator who asked “Why are you interfering is she your wife?” Then, I walked to the front and asked the driver to stop the bus near the next police station which he refused”.

“The perpetrator followed me to the front and threatened the driver saying he is in charge of the route and the next stop would be his destination.

Sexual harassment in public transport is rampant, but the law enforcement officials or fellow passengers hardly come to the rescue of victims.

The destination of the bus was Nittambuwa - Route No. 180 and the number of the bus was WPNA 3488.

This letter will be copied to the Attorney-General and the Inspector General of Police”.

Head of Women’s Desk

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Quotes from judges

Judges and politicians

“Since (judicial appointments) are effectively made by the executive, in the person of either the Lord Chancellor or the Prime Minister, the opportunity plainly exists to pack the judicial branch with appointees of a certain political persuasion or known social views.

This would not be regarded as an abuse in some other countries, such as notably the United States, nor would it always have been regarded as an abuse here.

But I think there is no doubt that such a policy, if it were now to be adopted here, would be regarded as an abuse, and I cannot think that would be long before a different appointments procedure were introduced.

There is, I would suggest, virtually no evidence of appointments since 1945 otherwise than on the basis of perceived merit, and at no time has this been truer than during the last decade.”

Lord Bingham of Cornhill, CJ of England

‘Judicial Independence’, Judicial Studies Board Annual Lecture, 5th November, 1996

Quoted by A. R. B. Amerasinghe in ‘Judicial Conduct, Ethics and Responsibilities’ - page 37.

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Intensive course on (IDP) protection and assistance

Applications are invited from interested persons for training on legal principals governing Internally Displaced Persons (IDPs). Applications should reach the LAC prior to January 15, 2008.

The address is Legal Aid Commission, 129, Hulftsdorp Street, High Court Complex, Colombo 12. Tel. 2395894.

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QUESTIONS AND ANSWERS

Maternity leave for school teachers

Question: I am a school teacher teaching in a Government School. I am due to go on my second confinement during the April school vacation.

Kindly let me know whether school holidays (school vacation) are excluded or included for the computation of 84 days maternity leave?

MRS. JEAN FERNANDO
- Moratuwa.

Answer: The answer is school holidays (vacation) are excluded for the reason that school vacation does not fall under the category of holidays and leave under the Shop & Office Employees Act.

Regulation 37 C published in the Ceylon Government Gazette No. 2553 of 21.07.1961 reads as follows:

“Every person who is a member of the tutorial staff of any establishment maintained for an educational purpose shall be exempt from the provisions of the Shop & Office Employees Act.

What flows from this is that a member of the tutorial staff of an educational institution is not entitled to the leave stipulated in the Shop & Office Employees’ Act - i.e. 07 days casual leave, 14 days annual leave, etc.

Regulation 39 B (4) published in Government Gazette No. 12553 of 21.07.1961 reads as follows:-

“Every establishment maintained for any educational purpose including any boarding house or hostel attached to such establishment and used by the pupils of such establishment for the purpose of residing therein.”

By Regulation 31 (b) the above establishment referred to in Regulation 39 B (4) is declared to be an office for the purpose of the Shop & Office Employees’ Act. The Employees’ referred to above are entitled to all the holidays leave etc. under the Shop & Office Employees’ Act.

Deed matter

Question: The deed of my flat is written in my name. I have however, written my will bequeathing everything to my wife after my demise.

Is this adequate for her to own the flat after my demise or is there a necessity for me to get the deed re-written in our joint names.

What would be the approximate cost of doing the latter.

N. K. RAJAN
- Colpetty.

Answer: A signing of a Last Will in your wife’s name is sufficient for her to file a testamentary case after your death.

If you write a Deed for Joint Ownership, then automatically the wife becomes the sole owner upon your death.

Gratuity computation

Question: I am a Senior Executive attached to a limited liability Company of repute employing more than 250 employees. Upon reaching 55 years on 25.06.2002 I was paid my service gratuity and re-employed on 26.06.2002 on contract basis with the same terms and conditions I was enjoying.

Thereafter, each year on June 26 my contract was renewed for 4 consecutive years.

On 26.06.2006 my service was discontinued and again after one month - i.e. on 26.07.2006 I was re-employed on contract basis for one year and again renewed on 26.07.2007 for another year - i.e. up to 25.07.2008.

Summary

Joined 17.03.1985 - 25.06.2002 - Permanent - 17 years.

26.06.2002 - 25.06.2006 - Contract - 04 years

26.07.2006 - still working and contract expirers on 25.07.2008.

I have completed 21 years continuous service - i.e. from 17.03.1985 to 25.06.2006 and after one month break I will be completing another 2 years on 25.07.2008. It is patently clear that my service was discontinued on 26.06.2006 for one month with the intention of deprived of my gratuity from 26.07.2006.

What is my gratuity entitlement once my present contract period expires on 25.07.2008? Is it 17,21 or 23 years? If it is more than 17, will gratuity already paid be treated as an advance payment? Please clarify.

A. JAYATILAKE
- Moratuwa

Answer: You will not qualify for gratuity when your present contract expires on 25.07.2008.

The gratuity paid to you for the period 17/03/1985 to 25/06/2002 cannot be treated as advance payment. You have accepted the gratuity for 17 years and thereafter a fresh contract has been issued to you from 26/06/2002 to 23/06/2006. Thereafter, after a lapse of one month you have been issued a fresh contract for two years. This cannot be considered as continued period of employment.

In terms of the Payment of Gratuity Act, the employment should be uninterrupted.

In this case there is an interruption. From the conduct of the Employer, it is very clear it has been done purely to avoid the Payment of Gratuity for the second time.

Maternity leave

Question: I am working in a Mercantile Firm in Ratmalana. For my first confinement I gave birth to twins and took 84 working days as my maternity leave. I am about to enter hospital for my second confinement.

How many days of maternity leave, will I be entitled? Please advise.

MRS. G. SUMANA
- Dehiwala.

Answer: Though it is not expressly stated in the Law, for the next confinement you will be entitled to 42 days of maternity leave. What is taken into consideration when computing maternity leave, is the number of living children at the time of confinement and not the number of previous confinements.

Can one set of grand children take control of grand father’s properties?

Question: My grandfather died intestate. He had three daughters, one of whom was my mother. None of the daughters are alive but there are three sets of grand children still alive.

One set of grand children took control of the properties and are trying to sell them. How can I stop this and ensure that all three sets of grand children get their fair share of the estate.

S. AHAMATH
- Nugegoda

Answer: According to your facts it was mentioned that only the grand children are living at he moment and they are the only legal heirs of your grand father’s properties.

First of all you must check whether your grand father had transferred or gifted the properties to the other grand children. In that event you can get the full details from the particular Land Registry.

If your grand father had not transferred the properties to the other grand children, then they have no legal right or title to dispose the properties. If you have any valid evidence to prove that the other grand children are going to sell the said properties without any legal right or title to a third party, you can get an enjoining order against them by filing an action in the District Court.

However, by filing a testamentary action under the Civil Procedure Code you can get a share of your grand father’s properties.

Will there be a testamentary case for ownership?

Question: I am a Medical Practitioner, 83 years old retired from Government Services and the University. Together with my wife we have three Bank accounts and several investments.

The Fixed Deposits in Companies all are joint accounts.

Please let me know in the event of the death of either of us, whether the survivor becomes the sole owner of these assets, or will there be a testamentary case for ownership. I have written a Last Will conferring all my assets to my wife. I have five children who are grown up and settled down in life.

DR. B. N. D. FERNANDO
- Colombo 6.

Answer: According to your facts, you have mentioned that you have nominated your wife as the nominee of your Fixed Deposits.

Therefore, she may be entitled to utilise your funds in your Fixed Deposit upon your death.

With regard to your Joint Bank Accounts, your wife has legal rights to operate the said Bank accounts after your death without instituting any testamentary action.

If you have not properly disposed of or transferred all your assets to your children in your Last Will, that may cause your children to institute testamentary action if the value of the assets exceed Rs. 500,000.

Re: Payment of gratuity

Question: I thank you very much for answering my previous question on computation of gratuity through your valuable Daily News Legal Aid Page. Could you now please let me know the answers to the following questions in relation to payment of gratuity:

i. From what date the payment of Gratuity Act came into operation?

ii. What are the categories of employees who are not entitled to receive gratuity?

iii. Is an employee who receives pension entitled to gratuity?

M. TISSERA
- Godagama.

Answer: i. Payment of Gratuity Act came into operation on 31.03.1983. Part I of the Act is operative with retrospective effect from 26.8.1972 in respect of employees of estates vested with the Land Reform Commission.

ii. The categories of employees who are not entitled to receive gratuity are as follows:

i. Employees of Cooperative Societies.

ii. Employees of Local Bodies.

iii. Domestic servants or personal chauffeurs.

iv. Employees who are entitled to pension under non-contributory pension scheme.

v. Employees who do not have five completed years of service.

vi. Employees in establishments which have less than (15) fifteen employees.

vii. Employees of Government Owned Business Undertakings.

viii. Employees of Crown - i.e. State employees.

ix. Employees who become entitled to a more attractive package in terms of a Collective Agreement.

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