In January 2010, a company in Kantale, Trincomalee, told its permanent workers to sign a document agreeing to be hired on contract, renewable every six months. The firm had changed hands the previous year without notice to employees. Many of them were pushed into accepting the papers. But some in its security division resisted. Among [...]


Legal Aid: A citizen’s right or poor man’s only hope

Commission needs restructuring, lawyers’ salaries raised

In January 2010, a company in Kantale, Trincomalee, told its permanent workers to sign a document agreeing to be hired on contract, renewable every six months.

The firm had changed hands the previous year without notice to employees. Many of them were pushed into accepting the papers.

But some in its security division resisted. Among them was W.M.S. Kumara Dayaratne, a father-of-two who is now 36. “My employment stretched back to 2001,” he told the Sunday Times. “If I had agreed to their new conditions, I would have lost my privileges.”

The District Labour Office in Trincomalee intervened. However, decisions taken at meetings were not implemented and relations worsened.

Mr. Dayaratne wanted to file a case but lawyers’ fees seemed prohibitive. Someone then told him about the Legal Aid Commission (LAC).

The LAC’s lawyers agreed to represent him and the Trincomalee court ruled in Mr. Dayaratne’s favour. But the company challenged that decision and secured a reversal from the High Court.

Mr. Dayaratne then lodged a fundamental rights petition in the Supreme Court. The case is still being heard.

“If not for the Legal Aid Commission, I would have been up to my neck in debt,” Mr. Dayaratne said, gratefully. “Now, I don’t have to spend a cent on legal fees. I only meet my travel costs.”

The LAC was set up in 1978 and has grown from eleven to nearly 80 centres countrywide. It aspires to provide equal access to justice and urges citizens to realise their “constitutional right for qualified legal help”.

Staff attorneys and panel lawyers carry out this task. To get assistance, clients must show a monthly income of Rs. 15,000 or less.

A cross-section of cases that the Sunday Times looked into proves there is strong demand for the Legal Aid Commission’s services. But critics feel the LAC is getting away with doing a minimum. They insist that the Commission needs an urgent restructuring.

“People have lost faith in legal aid for many reasons,” says Lakshan Dias, a human rights lawyer who was involved in the ‘Access to Legal Justice Project’ from 2008 to 2011.

The salaries paid by the Commission are so low that only ill-trained juniors or retired lawyers took the jobs. There is also the danger of stagnation.

“That is a fact,” he said. “They are on their own with a large number of files that they must handle.” Training, though of crucial importance, was woefully lacking. Nalini Jayatilaka, a senior lawyer, agrees.

“I’m not saying they don’t do (work) but we all need regular training,” she said. Some counsel were out of their depth in or had a poor understanding of the court system. Others lacked compassion or were uppity with their low-income clients.

“In other countries, they give very good salaries to legal aid lawyers,” said Mr. Dias. “This is not a poor people’s job. The impression in Sri Lanka is that legal aid is for the poor and that the poor will be satisfied with anything you give them.”

The Commission should be able to pay the best lawyers or contract them pro bono for underprivileged clients, Mr. Dias continued.

In Hong Kong, for instance, the recipient of legal aid can call for particular lawyers for whom professional fees are negotiated. He or she can complain if the services of a counsel thus contracted were unsatisfactory.

“What is happening in Sri Lanka?” Mr. Dias asked. “For a magistrate’s court case, the Commission’s outside lawyer will get about Rs. 1,000 or between Rs. 2,000 and 3,000 for a High Court case when other attorneys get Rs. 20,000 or Rs. 30,000”.
To work for such low fees, “you either have to be very junior or have a very big heart”.

“I think the LAC has not given enough attention to recipient rights or to the poor payment of their own staff or outside lawyers,” he continued. “If they cannot afford lawyers’ fees, they should stop this project.”

On the other hand, legal aid is a citizen’s right. “You’re not a beggar if you seek legal aid,” he asserted. “The only way you can fight for your rights in Sri Lanka is through litigation.

It is a serious issue that legal aid is treated here as the poor people’s business. Nobody else cares.”

Mr. Dias also called for the development of a pro bono system whereby firms and lawyers who can afford it offer their services free of charge to the underprivileged like Jalani Rupika Illesinghe, a 45-year-old widow with three children.

Mrs. Ilesinghe’s father died when she was young and her mother cohabited with an older man who had three children of his own. At some point in their relationship, he divorced his first wife and married the second woman.

LAC has vital role to play: Shoestring budget a challenge

Legal aid in Sri Lanka is at a crossroads. The Government has embarked on a journey of reconciliation and of restoring the rule of law in the country.The Legal Aid Commission (LAC) has a vital role to play—if only it got its act right.

Funding remains a challenge. The LAC’s 2013 Annual Report shows a Government outlay of Rs. 119 million. The provision is barely adequate to run an effective legal aid programme. In the 2015 Budget estimates Rs. 6,762 million was allocated to the Ministry of Justice.

The Commission received just Rs. 199 million or 2.9% of the Ministry’s budget. This has severely affected the LAC’s activities.

Retired High Court Judge and a strong critic of Sri Lanka’s legal aid system, Leslie Abeyesekera felt the Commission has achieved nothing in its 40 years of existence. Mr Abeyesekera now lives in USA and communicated with the Sunday Times via e-mail.

Author of a book titled “Justice Denied: the Journey of a Judge” he has long studied Sri Lanka’s legal landscape and is deeply dissatisfied. He was once a Director of the Legal Aid Commission.

“The Legal Aid Law, in my opinion, has been crafted by the legal profession for the main purpose of strangulating and killing its very purpose,” he said, not mincing his words.

“I have come across only one person at the LAC who had some degree of empathy towards the hapless litigant who was too poor to access justice.”

“In Sri Lanka, as everywhere, I suppose, justice is available only to the rich who are able to hire ‘smart’ lawyers,” he asserted.

“To all others justice is a denial. Believe me, there was one Chairman who thought that the LAC was created for the sole purpose of training the novice lawyer at the expense of the poor.”

“While working at the Legal Aid Commission, about 25 law students were apprenticed under my personal supervision and I tried to make them aware of their social responsibilities,” Mr Abeysekera recounted.

“I am happy that they remembered my advice for about a year and thereafter succumbed to making money and began to run with the herd. I am not blaming them but only noting a sad reality.”

Mr. Abeysekera said there was a lack of wider interest in legal aid because “the Legal Aid Commission has been brought to disgrace and ridiculed to such an extent that the institution can be redeemed only by its abolition.” 

“It must be replaced by a Department of the Public Defender as in the US,” he opined. “If the prosecution can be led by the Attorney General, why not a Public Defender for the accused if there must be some semblance of balance?”

Britain has a long standing legal aid system, he pointed out. Around 1993, it was spending GBP 980 million to maintain the system which was popular and appreciated by the judiciary. “Lawyers love it,” Mr. Abeysekera said. “In fact, some thrived on it.”

At the root of the problem is a weak judicial system that has increasingly become dysfunctional, he continued. “We must unburden our judges of ancient and unacceptable basics that hinder the system and result in unacceptable delay and unbearable expense.

Do you know that only 4% of suspects are eventually convicted in our country? The balance 96% is punished by unendurable delay.”


He also had a house built for them to live in. After this man’s death from cancer, his ex-wife and children laid claim on his house and old age benefits.

The Pensions Department directed the case to courts and told Mrs. Ilesinghe about the Legal Aid Commission. She secured representation for her mother who eventually won the case.

In the North, too, the LAC provides crucial input. “There are many issues regarding land matters and people need to find a solution in the legal system,” explained Rubawathy Ketheeswaran, Mullaitivu Government Agent.

“The residents of this area are vulnerable and not in a position to proceed with legal action. Statistics show that, more than 28 percent of inhabitants are below the poverty line.”

“At present, the Legal Aid Commission is helping with cases in one village,” she continued. “It was in the conflict area for many years and people were going through longtime displacement.

When they returned, their lands had been taken over by the Forest Department.”

The leader of the Rural Development Society in Urani, Pottuvil, in the East said the Legal Aid Commission did an educational programme about the importance of marriage registration.

He was himself married for 35 years without registration. He now realised that this could be a disadvantage to his children, especially in inheritance matters.

“The LAC then conducted a marriage registration clinic where five people from our village and 25 couples from adjacent villages were registered together, he said.

“They even organised a small ceremony for all of us. I am grateful they came to our village, listened to our problems and helped resolve them.”

The problem with the status quo, however, is that it could be so much better.

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