Introduction - Migrant workers - Foreign exchange earners

Domestic workers, often making extraordinary sacrifices to support their families, are among the most exploited and abused workers in the world.

Human Rights Watch Sri Lankan Migrant Workers specially the female domestic workers are the bread-winners of the nation. According to reports they remitted US$ 192 Billion to Sri Lanka in 2005.

Sri Lanka happens to be a leading country where the State encourages domestic migrant workers to seek employment in affluent countries. Consequently, it is estimated that over 1 million regular and irregular migrant workers from Sri Lanka are working abroad specially in countries in the Middle East and East Asia.

The contribution of migrant workers' to Sri Lanka's foreign exchange earnings had been the highest, totalling some Rs. 198 Billion in the year 2005. It is the duty of the Sri Lankan authorities to ensure the safety of our main source, Domestic Migrant Workers, a vulnerable group consisting mostly of uneducated women from dangers from both here and abroad.

The UN has designated December 18 as the Migrant Workers Day. It is on that day that the Migrants Desk of the LAC organizes programmes to enhance the rights awareness among the migrant workers.

Sri Lanka was one of the first countries which signed the 1990 International Convention on the Protection of the Rights of Migrant Workers and Members of their Families as far back as 16 March 1996. The UN sponsored Convention took 12 years to get the minimum number (10) of Ratificators necessary for its enforcement and it finally became effective in 2002.

Upto date, while 34 countries have ratified the Convention, 14 countries have merely signed. Among the signatory countries, the labour receiving countries are conspicuous by their absence, while most of the signatory countries are the migrant producing countries.

Under Part VII of the UN Convention the application and monitoring of the Convention have been entrusted to an International Committee set up under Article 72 elected by secret ballot from among country experts on migration to serve in their personal capacity.

The distinction of being elected as Chairman of this Committee fell on Sri Lanka during the last two years. But the travails of our domestic workers continue unabated and the country has failed to submit even the annual reports as required in the Convention.

While ratification of International Convention is considered legally sufficient for enforcement of rights and duties under the Convention vis-a-vis other States, the Sri Lankan Law does not impose any legal obligation to the State to honour the Convention within the sovereignty of Sri Lanka unless supporting legislation is enacted by Parliament.

So far after 11 years of ratification, Sri Lanka legislature has failed to enact the required legislation. A country which is a leading producer of migrant workers with continuous reports of exploitation and harassment, the legislators should look at this issue as an urgent one as migrant workers are major foreign exchange earners of this country.

Many countries in South Asia do not encourage women migrant workers to go as domestic workers as they become victims of sexual and labour exploitation. The LAC Migrant Desk has discovered that many female migrant workers are virtually trafficked. The social disaster that befalls on their homes in the absence of mothers is catastrophic.

The 1990 International Convention, which was based on a number of ILO Conventions relating to the protection of human rights of migrant workers, imposes certain obligation on the countries of origin. Under Article 33 of the Convention, the state of origin (Sri Lanka) has an obligation to inform the prospective workers about the conditions of labour in the country of employment.

Most Sri Lankan domestic workers are completely unaware that some of the countries of employment do not respect basic human rights of the workers or the numerous ILO Conventions. Most of female migrant workers realize they have been trafficked in to involuntary servitudes only when they find that they have no way to escape from the bondages.

It is paramount that the Sri Lankan Government brief the prospective migrants about the situation prevailing in those countries and allow the workers to make an informed choice. The LAC has been helping the Foreign Employment Bureau in this respect - But these briefings should be compulsory.

The migrant workers should be briefed about the rights under the International Convention such as the right to vote and the right to form workers association before departure. Transmitting information should not be left at the sole discretion of Employment Agencies whose main motive is making a profit from the "Migrant Industry".

S.S. Wijeratne

Questions and Answers

Is it necessary to put the arbitration clause in the agreement?

Question: I have decided to start a business with a foreign company. We have already drafted the our agreement. But we never included the arbitration clause in our agreement.

I want to know whether it is necessary to include the arbitration clause before the parties sign the agreement. If the agreement does not include the arbitration clause, can the two parties resolve the dispute through arbitration. What is the legal validity?

Tushantha, Negombo.

Answer: If you want to resolve your dispute through arbitration you have to include the arbitration clause in your agreement.

The arbitration clause is mentioned in part (II) - Arbitration Act No. 11 of 1995. Otherwise when the dispute arises both parties can enter a submission agreement to resolve the dispute through arbitration.

In the case of business with the foreign company it is advisable to include the arbitration clause, because the arbitration award is enforceable internationally.

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What is incest?

Question: What is incest and what is the punishment imposed on such an act. Kindly explain in your Legal Aid Page Column.

A. Joseph Fernando, Bangadeniya.

Answer: Whoever has sexual intercourse with another who stands towards him in following relationships:

(a) directly descended, adoptive relationships.
(b) Sister by blood or adoption
(c) Brother by blood or adoption

The offence of incest shall not be affected or negated by reason of legality of such relationship. (Absence of valid marriage or adoption).

Punishment

Rigorous imprisonment - 7-20 years with fine.

* Attempt to commit incest - 2 years.

* Written sanction of the Attorney-General is necessary for prosecution.

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Professional negligence of lawyer

Question: A case was filed by me on the advice of my lawyer. However, the courts dismissed this case with costs on a technical point. This was due to professional negligence on the part of my lawyer. Please let me know whether I can claim compensation from my lawyer and if so the procedure that I should follow. If not, please let me know the options available for me to obtain release.

K. Sivasubramanian, Wellawatte.

Answer: You have to forward your complaint with an affidavit to the Secretary/Chairman, Professional Ethics Committee, Bar Association of Sri Lanka, 153, Mihindu Mawatha, Colombo 12. Tel. No. 2447134.

In your complaint you have to give the name and address of the lawyer who handled your case. However if you have already made a complaint regarding this matter to the Judicial Services Commission or the Supreme Court, the Bar Association will not consider the matter.

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Problems regarding child trafficking

Question: Our village is in a very remote area and often attacked by terrorists in the Eastern Province. Consequent to terrorist attacks, child trafficking has been the main problem which our villagers suffer. Kindly let us know how the Legal Aid Commission could help us in this serious matter.

Poor villagers in the Eastern Province.

Answer: The Legal Aid Commission has set up a Child Rights Desk in order to create an awareness among the community on child protection law according to Article 42 of the UN Convention on Rights of Children and also to provide free legal advice to child victims, child abuse and violence in children. Therefore kindly send us a letter giving all the details to the following address:

Ms Mahesha Priyadharshini de Silva, AAL,
Coordinator, Child Rights Desk,
Legal Aid Commission,
129, High Court Complex,
Colombo 12. Tel. No. 2433618

On receipt of your letter, we could provide you with free legal advice in the matter.

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Personal income tax and withholding tax rates applicable for the year 2006/2007

Question: Could you please let me know the personal income tax and withholding tax rates applicable for the year 2006/2007.

Alex, Seeduwa.

Answer: As per the Dept. of Inland Revenue, the tax year means for the period 1st of April of the current year to 31st of March of the following year.

Personnel income tax

First 300,000 exempted
Next 300,000 of taxable income - 5 per cent
Next 200,000 of taxable income - 10 per cent
Next 200,000 of taxable income - 15 per cent
Next 200,000 of taxable income - 20 per cent
Next 200,000 of taxable income - 25 per cent
Next 500,000 of taxable income - 30 per cent
Balance - 35 per cent.

Withholding tax rates

Interest paid in SL in excess of Rs. 100,000 - 10 per cent.

Interest on specified Corp. Debt Securities - 10 per cent.

All liable dividends - 10 per cent.

Government rewards - 10 per cent.

Lottery prices (more than Rs. 500,000) - 10 per cent.

Treasury Bills at the primary market - 10 per cent.

Interest paid at charitable institution -

Excess of Rs. 12,000 p.m. / Rs. 144,000 p.a. - 10 per cent.

On specified fees paid by specified persons - 5 per cent.

On rent paid to a non-resident person -

Rs. 50,000 p.m. or Rs. 500,000 p.a. - 10 per cent.

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Registration of lease agreement

Question: I decided to enter into a lease agreement with the owner (the lessor). However the owner informed me that there is no need to register the Lease Agreement. I would like to know why he said so and what is the legality in registering the said document?

Kamal, Katunayake.

Answer: If there is a lease agreement, it should be registered. In the event of a dispute between the parties, a registered lease agreement will have a validity over an unregistered lease agreement.

If the owner refuses to do so, you have to be very careful as he may have intentions of cheating you.

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Disclaimer

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

Send in your questions to: The Daily News Legal Aid Page, Chairman, Legal Aid Commission, 129, Hulfsdorp Street, Colombo 12.

Please note that your questions should be in brief.

Email: [email protected]

Developmental Legal Aid Desk 1:

Legal Interns and Bench and Bar Programme

The Legal Aid Commission in order to provide free legal advice and assistance to poor litigants in court cases has established a number of Developmental Legal Aid Desks within the Commission. Among the Developmental Legal Aid Desks, one is devoted to training the lawyers and law students in latest legislations and judicial pronouncements.

The Developmental Legal Aid Desk of the Legal Aid Commission is headed by Senior Legal Officer of the Commission, Damayanthi Dissanayake, Attorney-at-Law who has conducted training programmes for over 1000 legal interns during the last few years with the assistance of Senior Judges and Senior Counsels.

Additionally, Ms. Dissanayake has conducted Bench and Bar Colloquium throughout the country in order to enhance a dialogue between the Bench and the Bar on important legal issues.

The Bench and Bar of Matara, Galle, Kalutara, Anuradhapura, Polonnaruwa, Kegalle, Kandy, Bandarawela, Kekirawa and Colombo Judicial Zones have been completed in 2006. The balance judicial zones would be completed in 2007. Ms. Dissanayake also coordinates media programmes on legal subjects as a Representative of the LAC.

Family Rights as Human Right - A Human Rights Blueprint for Sri Lanka

The family is critical to the maintenance of civil society. As the Universal Declaration and UN documents to this day acknowledge, it is the natural and fundamental group unit of society.

Article 16 of the Universal Declaration of Human Rights (UDHR) recognized that the family was not only the "Fundamental" group of society, but that it is the "natural" group unit of society to be protected by the State.

Unfortunately, Human rights discourse, by its very nature, is limited to and addresses individual rights. Human rights langauge fails when it relates to organic groups such as the family, since it can only address individuals in the group and not the group as a whole.

The National Human Rights Day in Sri Lanka was organized by the Ministry of Human Rights and Disaster Management on December 10, 2006 in Greenpath Avenue Colombo to coincide with the UN Special Day on Human Rights.

Human Rights Bureau (HRB) of the Legal Aid Commission (LAC) too participated with a stall consisting of legal experts drawn from an array of Human Rights fields including child rights, women rights, elders' rights, migrants' rights etc.

The LAC's theme for this event was "Family Rights as a Human Rights". It was the LAC's passionate objective to reaffirm the "forgotten right" which was once intended to be 'truly universal' (and meaningful) when it was firmly rooted in the UDHR, and to augment the current individual Human Rights discourse.

It is hoped through this programme that "family as a Human Right" would be a blueprint for the survival of Sri Lankan "Human Rights Culture" that transcends beyond all individual norms.

Nuwan Peiris, AAL

LAC rendering yeoman service to the poor - District Judge Maho, Kumar Ratnayake

The 33rd Center of the Legal Aid Commission was opened on December 8 at the Maho Courts Complex by the LAC Chairman, S.S. Wijeratne followed by a meeting of lawyers, court officials, provincial administratives, police officers and the general public.

The District Judge for Maho Kumar Ratnayake said that he always wanted to serve in remote areas and was very happy to be appointed to the Maho District Court as many poor farmers have legal problems in the area.

The free legal aid service provided by the LAC would be extremely helpful and the support given by the Maho Lawyers' Association to the LAC is commendable.

LAC Chairman S.S. Wijeratne said that as Maho is one of the poorest farming regions in the country, the farmers are facing many legal issues relating to payment of agricultural loans and family disputes.

The Legal Aid Centre of Maho with the support of the lawyers of Maho led by AAl, Bogallagama, the President of the Bar Association and the Secretary, Chintha Balalla would organise legal seminars in remote villages surrounding the Maho, Abanpola and Galgamuwa areas.

LAC Director-General, Justice Hector S. Yapa said that the keenness shown by the Maho Lawyers Association, the District Judge and the Bar Association in establishing a Legal Aid Center is very salutary and he has no doubt that the poor litigants in the area would benefit from this Center. Legal Officer, R.M.K. Sujeewani, AAL of Legal Aid Center Maho proposed the vote of thanks.