Legal Aid Commission

Criminal defence service

Our Constitution states in clear terms that all state powers whether they are legislative, executive or judicial are reposed in the people. Rule of law regulates the flow and disposition of power. Fundamental Rights Chapter guarantees the right of the people not to be oppressed by the executive and the administration.

Use of violence or force to maintain law and order is a monopoly of the state, surrendered to the State by the people and should not be abused. The Independent Judiciary has been entrusted with responsibility to protect the liberty of the subject from abuse of power by the organs of the state specially by the police in criminal matters.

The elaborate provisions in the Criminal Procedure Code, the Evidence Ordinance coupled with the principles of presumption of innocence of an accused and the need to prove a criminal charge beyond reasonable doubt are basic points of due process in criminal justice.

In the emergency of the civil war which challenged the existence of the state itself some of the protective measures would have been curtailed but now that the war is over the curtailed liberties of the subject should be restored. This is a prior requirement before national conciliation and development.

One major step needed to reinsure due process and respect for rule of law is provision of legal aid in criminal cases right from the point of police investigation stage.

Even though Sri Lanka's Legal Aid law No.27 of 1978 does not preclude provision of legal aid in criminal cases, the financial restraints have prevented the LAC, from initiating Criminal Legal Aid Scheme. The presumption of innocence calls for equal access to justice to the accused. If destitution prevents many accused to afford legal representation for a fair trial it will result in injustice.

The Criminal Procedure Code provides assigned Counsel to the accused in indictable offenses before the High Courts. Thus the principle of legal assistance to the accused persons is now recognized in the ICCPR Act No.56 of 2007 even though the failure to frame regulations under the Act has prevented the full implementation of the provisions.

Criminal defence services should be available not only in courts but should commence at the police investigation level like in many countries with developed criminal justice systems. Sri Lankan police and lawyer relationship has always been a chequered one. Lawyers have been assaulted and harassed in police stations. It was reported at a recent Bar Council Meeting that the Supreme Court has recognized the right of access to lawyers to police stations. So far no official pronouncements have been made by the Inspector General of Police.

Eligibility for criminal defence legal aid could also be means based like in civil litigation. Only the destitute persons charged with offences would be able to avail of legal aid.

In the above context, the steps taken by the Legal Aid Commission to set up criminal defence services initially in the Hambantota, Nuwara Eliya, Anuradhapura, Vavunia and Trincomalee Magistrate's Courts with financial support of the Equal Access to Justice Project of UNDP could be considered an important step in legal aid provisions in Sri Lanka.

Public Legal Awareness Unit

Calling on Attorneys

Applications are invited from Attorneys-at-Law with over three years practice in criminal defence, one of which should be related to legal aid work. As the Commission has decided to initiate legal aid in criminal defence as a pilot project, Legal Aid Lawyers are needed for the following Legal Aid Centres:- * Anuradhapura, * Vavuniya, * Trincomalee, * Hambantota, * Nuwara Eliya.

Proficiency in Tamil language is a requirement to serve in the Vavuniya, Nuwara Eliya and Trincomalee centres.
Closing Date: August 30, 2009
Mailing Address: The Chairman, Legal Aid Commission, 129, Hulftsdorp Street,
Colombo 12.

Voet Inn AGM

The 60th anniversary Diamond Jubilee dinner of the Voet Inn Association will be held at the Galadari Hotel on August 29 at 7 p.m. All Voet Inners please contact the following Attorneys-at-Law: Mahinda Ekanayake - 0776-066925, Mahinda Lokudge - 0773-266474, S. Suntheralingam - 0777-374423, Chamath Jayasekera - 0773-113876, Uthpala Adhikari - 0718-032712.

The Annual General Meeting of the Voet Inn Association will also be held at the same venue at 6.30 p.m.

LAC centres and telephone numbers
Legal Aid Commission of Sri Lanka
129, Hulftsdorp Street,
High Court Complex
Colombo 12
Fax: 2433618
Email: legalaid@sltnet.lk
Website: www.lawaid.org

Centre				 Tel. No. 
01 Head Office			2433618, 
				5335329, 
				5335281 
02 Tsunami Regional Centre 	060-2137153 
03 Welikada Prison 		2433618 
04 Bandarawela 			057-2224733 
05 Matale 			060-2664588 
06 Avissawella			060-2362219 
07 Ratnapura 			045-2226899 
08 Negombo 			031-5677111 
09 Kalutara 			034-5628860 
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 Nuwara Eliya 		052-2235260 
18 Moneragala 			055-2276191 
19 Ampara 			063-2223496 
20 Kegalle 			035-2231790 
21 Chilaw			032-2222175 
22 Akkaraipattu			060-5675333 
23 Balapitiya			091-2255753 
24 Matara 			041-2233815 
25 Vavuniya 			024-2221863 
26 Trincomalee 			026-567602
				026-2222293 
27 Kalmunai 			067-2223710 
28 Jaffna		 	021-2224545 
29 Batticaloa 			065-2225399 
30 Panadura			038-2244822 
31 Kuliyapitiya			037-2284611 
32 Mahiyangana 			055-2258332 
33 Mahawa 			037-2275075 
34 Horana 			034-2265244 
35 Matugama			060-2444262 
36 Attanagalla			033-2297020 
37 Dambulla 			060-2682238 
38 Deniyaya 			060-2428006 
39 Mawanella 			035-2247272 
40 Marawila			032-2254443 
41 Warakapola			037-2277075 
42 Juvenile Court,
 Bambalapitiya			2507687 
43 Nugegoda 			2809068 
44 Welimada 			057-2244860 
45 Kantalai 			060-2263091 
46 Tambuttegama 		- 
47 Mt. Lavinia 			2718708 
48 Tissamaharama 		047-2239611 
49 Baddegama 			- 

Questions and Answers

Special facilities provided by SLBFE

Question: I am due to leave the island shortly as I have found employment in the Middle East through a registered Job Agency.

I want to find out whether there are any special facilities provided by the Sri Lanka Bureau of Foreign Employment (SLBFE) if you register yourself with the Bureau? Please let me know.

P. Surangani Athurugiriya

Answer: It is always advisable to get a job through a registered Job Agency.

The following benefits are provided by the SLBFE if you are registered with the Bureau:-
(a) Job security.
(b) Free Insurance Coverage.
(c) Scholarships and free educational equipment for your children.
(d) Free medical facilities for family members.
(e) Low interest housing loans and self employment loans.
(f) Intervening in your problems/ difficulties at workplace.
(g) Providing legal assistance when required.
(h) Welfare services provided free of charge at "Sahana Piyasa" Welfare Centre.
(i) Social security services.
(j) Compensation and reimbursement of funeral expenses in the case of death of migrant worker. -------------------

Filing of maintenance application?

Question: My sister wants to find out as to who can file a maintenance application? Your early reply would be greatly appreciated.

Felicia Mavis - Kotikawatta

Answer: Maintenance Act No. 37 of 1999 states that -

(1) An application for maintenance may be made-

(a) Where such application is for the maintenance of a child or disabled offspring, by such child or disabled offspring or by any person who has custody of such child or disabled offspring;

(b) Where such application is for the maintenance of an adult offspring, by such adult offspring or where such adult offspring is incapable of making such application, by any person on his or her behalf; and

(c) Where such application is for the maintenance of a spouse, by such spouse or where such spouse is incapable of making such application, by any person on his or her behalf.

(2) An application for maintenance may be made to the Magistrate's Court within whose jurisdiction the applicant or the person in respect of whom the application is made or the person against whom such application is made, resides.

Further Section 10 states that

10. Every application for an order of maintenance or to enforce such an order, shall be in writing and shall be signed by the applicant or the person making the application on his behalf and shall be free of any stamp duty. Every summons to a respondent or a witness shall also be free of stamp duty.

Rent allowance - Does it attract Provident Fund?

Question: I am working as a Senior Executive in a private company. In addition to my salary I am also paid a separate allowance known as 'Rent Allowance' I want to find out whether the said allowance attracts Provident Fund. Please advice me.

Shiran Wickramatunga

Kandana

Answer: The following payments do not come under the definition of total earnings and do not attract Provident Fund:-
(1) Bonus payments.
(2) Rent Allowance.
(3) Children's allowance.
(4) Overtime payments. Payments made for working on public or weekly holidays is considered as enhance wages for that day and not overtime payment.
(5) Travelling reimbursement.
(6) Service charge paid to employees in hotels.

Elders' Law No. 09 of 2000

Question: I was a good businessman in the past. During that time I gifted all my properties to my three children. At present I am living in an Elders' Home. My children are now neglecting me. According to the advice from a friend of mine, I can file action against them. I have got an order from the Maintenance Board against the children under the Elders' Law. Earlier they were regularly paying me but now they have refused to pay. I am helpless. Please help me.

C. George - Nattandiya.

Answer: The order of the Maintenance Board can be enforced by the Magistrate's Court. Under the Elders' Act No.09 of 2000 - Section 15 states that it can be enforced by the Court of Law. Under Section 32 of the Elders' Act, maintenance orders made under the Act shall be deemed for the purposes of enforcement, to be orders made by a Magistrate under the Maintenance Ordinance and may be enforced by the Magistrate having jurisdiction over the place where the application for whose benefit the maintenance order is made, resides, in the same manner as maintenance order made under that Ordinance.

If you need further clarification, you may visit the LAC Elders Desk for free legal advice and assistance in this regard. ---------------

Land dispute

Question: There is a land dispute between two brothers. As a relation of theirs I tried to settle this matter amicably but my effort was not successful. Now one party is trying to file action against the other party. Since the land in dispute is situated in two districts (Puttalam and Negombo), the party who is trying to file action is confused as to in which court he has to file the action.

I am also keen to know in which court the party is trying to file action against the other party. I await your kind reply.

P.S. Pathirana - Puttalam

Answer: The party contemplating to file action can file action either in the District Court of Negombo or in the District Court of Puttalam. Under the Civil Procedure Code, if there is any land dispute, the plaintiff has to file the case in the District Court where the land is situated. If any land is situated in two districts, the plaintiff can file action in any one of the District Courts where the land is situated.

Prescriptive title of property

Question: I have been living with my daughter for more than 15 years.

This house was owned by an old lady and originally we were asked to stay with her. We looked after her and after two years she passed away. Ever since we have been living at that premises.

A son of that lady who was abroad used to come and threaten us whenever he visited the country. Now he has come to settle down and has threatened to file action to chase us away. Please advise me.

P.Walpola - Kesbewa

Answer: In terms of the Prescription Ordinance, any person who has been in possession of a premises for more than 10 years can claim prescriptive title to that premises.

Here you have to prove that your possession was adverse, uninterrupted and undisturbed.

In simple terms it means forceful occupation. So if any legal action is filed, you can retain the services of a lawyer and file answer claiming prescriptive title to that property.

Transfer of High Court case

Question: One of my relations is having cases in the High Courts of Jaffna and Vavuniya on different dates. As a result the Prison Authorities are unable to produce him in the above said courts.

Please explain as to whether there is a procedure to overcome this problem? Your kind reply is solicited.

M. Krishanthan - Vavuniya

Answer: Under Section 47(1) of the Judicature Act, the Attorney-General has the power to arrange a suitable court using his discretionary powers. Therefore it is advisable to write to the Attorney-General regarding this matter. The Attorney-General can take steps to transfer the case to the High Court of Vavuniya.

Attestation of Life Certificate

Question: My elder brother is a Sri Lankan Government pensioner. He is presently residing with his family in India to educate his child. Every pensioner is required to sign a Life Certificate at the beginning of the year and send it to the Divisional Secretary. The format of the Life Certificate varies. My brother's Life Certificate requires attestation by a Gramsevaka Niladhari. I am also a Pensioner. But my Life Certificate provides for a Justice of Peace or an Attorney-at-Law to attest.

Since my brother is abroad the Gramasevaka Niladhari is not prepared to attest the Life Certificate this year. Last year my brother was able to get his Life Certificate attested by the said Gramasevaka Niladhari. My brother will not be able to get his pension this year without the Life Certificate being attested by the Gramasevaka Niladhari.

Your advice in this matter is solicited.

S. Perera - Sent by email.

Answer: It is a requirement by the Pensions Department to submit the Life certificate once a year. The Pension Department has introduced special requirements to pensioners who are living abroad.

Please advise your brother to write a detailed letter addressed to the Pension Director giving his Pension Number, his address in Sri Lanka, Bank Account Number and his present address. The relevant address is given below:-

The Director of Pension Pension Department Maligawatte Colombo 10

Rights of elders

Question: I am a senior citizen and I have heard about the Elders Act. But I am not aware of the rights available to elders under this Act. Can you please let me know the rights available under the said Act. I await your kind reply.

S. Wijetunge Ingiriya.

Answer: Under the protection of the Rights of Elders Act No.9 of 2000, the following rights are available to elders:-

1. Children shall not neglect their parents willfully and it shall be the duty and the responsibility of children to provide care for, and to look into the needs of their parents.

2. The State shall provide appropriate residential facilities, to destitute elders who are without children or are abandoned by their children.

3. No elder shall, on account of his age, be subject to any liability, restriction or condition with regard to access to, or use of any building or place of institution which any other person has access to or is entitled to use, whether on payment of any fee or not.

Property matter

Question: I am a retired banker aged 79 years. I have gifted my house and property to my only son, keeping life interest for me and my wife. I like to know whether I will be able to -
1. Sell the house and property
2. Rent out a portion
3. Lease out a portion of the house.

At present my income is not enough for me to live.

P. Mohideen Gampola

Answer: 1. With regard to your 1st query, the answer is "No". You have no legal right to sell the property.

2. With regard to your 2nd and 3rd queries, as you and your wife are the life interest holders, you can rent out or lease out your house until you and your wife's death. After the death of both of you, your son will automatically become the legal owner of your property.

Pension matter

Question: My husband was a Senior Executive at the National Savings Bank, Colombo 3. He was in the service of the Bank for nearly 12 years - from 1982 to 1994. He retired in 1994. Since retirement he drew a pension from the Bank. He died on September 22, 2008. Now as his widow, I should be entitled to his pension.

However, the bank has informed me that I am not entitled to any pension. I have no income at all and am in dire straits.

I shall be grateful if you will take this matter up with the National Savings Bank and assist me to obtain a pension.

L.A.Perera Kundasale

Answer: When we referred your matter to the National Savings Bank, we were informed by the Bank that it has still not introduced a W&OP scheme to its staff.

Therefore, you will not be entitled to your husband's scheme.

Affidavit attested by a commissioner for oaths - Is this valid?

Question: I am a regular reader of the legal pages appearing in the CDN and Thinakaran. My thanks are to the LAC Office, Batticaloa who have displayed these pages in their office.

Your 'Legal Aid' (Questions & Answers) is a very useful book, especially to laymen. My thanks to E. Kandasamy, Project Coordinator, LAC Batticaloa who was good enough to lend me a copy of this book.

Please answer the following question through your CDN Legal Page:-

"Usually, affidavits are attested by Justices of the Peace. The question is whether affidavits attested by Commissioners for Oaths are valid for official purposes".

A.Suntharalingam Batticaloa

Answer: The answer is "Yes".

How to obtain a certified copy of birth certificate?

Question: My sister was born in Italy. Her birth had been registered at the Sri Lankan Embassy in Italy. Now my sister is living with me in Sri Lanka.

Please let me know how to get a certified copy of my sister's Birth Certificate.

M.Nimalka - Mawanella

Answer: You have to get the B 63 Application Form from the Divisional Secretary's Office. After completion, it could be sent by hand/or registered post to the following address.
Central Record Room ,
Registrar- General's
Department.
Maligawatte
Colombo 10
Uncancelled stamps to

the relevant value should be affixed in payment of charges. If stamps are sent by post it is advisable to send them under registered cover. All application should be accompanied by a self addressed envelope. If the certificate is required to be sent under registered post the required registration duty should be affixed to the cover.