Introduction- Empowering the Human Rights Commission

Ten years is a sufficient period of time to evaluate the effectiveness of a law. Such review is essential when the law deals with such a fundamental issue as the Human Rights.

The Human Rights Commission was established in Sri Lanka only in 1996 by Act No. 21 of 1996. The Law did not provide a mechanism to deal with the entire gamut of 30 human rights as contained in the Universal Declaration of Human Rights but only a fraction of rights as contained in the Fundamental Rights Chapter of the 1978 Constitution.

The Commission was mandated to only “to inquire into and investigate complaints regarding infringement or eminent infringement of fundamental rights thereof”.

It was evident from the very beginning the HRC did not have the powers of enforcement of its resolutions except to report them to the Parliament annually through the President. According to a recent research report compiled by the Legal Aid Commission’s Human Rights Researcher, Nishadini Gunaratne, AAL, some 400 recommendations of the Commission are remaining unimplemented.

After all the trouble that a victim of Human Rights Violation goes through to get his grievance investigated, if he receives no relief under the present law, the law needs amendment.

It is in this context that the Human Rights Commission and the Legal Aid Commission entered into a Memorandum of Understanding to provide legal assistance to victims of Human Rights Violation through the courts.

However, this arrangement has received a set back by the Supreme Court observation that attempt to get relief through the court for HR recommendations would tantamount to abuse of process as the HRC Act does not provide for such procedure.

The HRC Report 2001-2004 and Gunaratne paper, inter alia, recommend the following urgent amendments to the Act:-

1. A new provision be incorporated into the Act to empower the Commission to refer any violator, who fails to comply with its recommendations within a specified time, to a competent court for enforcing the Commission’s recommendations.

2. The Act be amended to invest the Commission with the authority to grant interim stay orders.

3. The Commission be invested with the authority to issue warrants under specified conditions for execution by the Police.

4. The Act be amended to make provision for a complaint to be made within a specified time period subject to the proviso that if a complainant could not make a complaint for reasons beyond his/her control, the Commission be given the discretion to entertain such complaint.

5. (i) A team of experts examine the reasons as to why cases are not completed within a reasonable time frame and make appropriate recommendations which should include a mechanism for expeditiously clearing the backlog of cases which have accumulated.

(ii) The Act be amended to impose time frames in which different classifications of complaints should be completed.

6. The Act be amended to provide for the establishment of a panel consisting of senior officials of Ministries/Authorities that function in the area of human rights fundamental rights which should periodically meet to assist the Commission in the implementation of its decisions and prevent duplication of work.

7. The Commission’s Act be amended to make it mandatory for the Commission to annually publish, in collaboration with other State human rights institutions and international agencies, an in-depth analysis of the totality of the human rights situation of the country to indicate the effectiveness of domestic legislation and its compliance with international obligations, achievements in the battle against rights violations, deficiencies that impede the enforcement of rights, the incidence of rights of violations by category and the improvements needed for the further advancement of human rights.

We have submitted the LAC recommendations to the Minister for Human Rights and Disaster Management for perusal and action. Human Rights are too fundamental a subject to be ignored any longer.

S. S. Wijeratne

Questions and answers

EPF benefits

Question: What are the benefits for the payment of the EPF and who are the persons entitled to EPF payments?

Senaka Abeysinghe,

Matugama.

Answer: The objectives of the EPF payment is to provide retiring benefits to employed persons in the private and state Sector undertaking through the machinery of a contributory provident fund. It is almost a high water mark in the social legislation of this country and can be considered as the first piece of welfare measure that got into the statute book to benefit the workers.

It is intended to ensure that a worker who, on account of old age or through a physical or mental infirmity is precluded from the possibility of working any further, is able to live on his own without being a liability on his fellow citizens or his relatives and without having to depend on charitable allowance paid by the State.

The scheme helps him to live in dignity on savings put up during the time he was actively employed.

Operation of the fund: Both employers and employees contribute to the fund and all employments other than the following are covered under that Act. viz.

1a. Under the Government;

1b. Under the Local Government Service Commission;

1c. Under any Local Authority, being a local authority in respect of the employees of which a pension scheme or provident fund has been established under any other written law.

The operation of the fund commenced, with the publication of Orders prescribing certain employments as ‘Covered Employment’. So far 15 Orders have been made covering almost all the employments other than those mentioned above. The coverage of the scheme has been enlarged as from 1971 January to bring in even establishments with 1 or more employees.

Exemptions: Certain categories of employments have been exempted, viz.

1a. employment in domestic service.

1b. employment in any undertaking which is carried on mostly for the purpose of giving industrial training to juvenile offenders or to persons who are destitute, dumb, deaf or blind.

Note: Charitable organisations or organisations maintained solely for the purpose of religious worship of service were also included in the category of exemptions but by Order No. 15 those institutions which employ 10 or more persons are covered (date of liability 1.4.91).

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Landlord wants house from tenant of 59 years

Question: We have been in residence at our parents’ home for the last 59 years. We have a clean record of housing, paid our rent which is less than Rs. 100 for this period. We have no arrears whatsoever. Maintenance and all repairs have been done at our expenses.

However, we have now come to know that our landlord intends acquiring our house which is our home in the near future. He is a usual businessman owning various other properties as well.

We would like to know whether this is possible on his part. Anticipating an urgent reply and thanking you for the wonderful service you are rendering for desperate client like us.

Kanthie de Silva,

Colombo.

Answer: According to your letter, it is very clear that you are the tenant of the above said premises over the past 59 years without any default of rent to your landlord at the rate of Rs. 100.

Therefore, you now want to claim prescriptive title for such property. According to the existing law, you have no way to claim prescriptive title for such property since you are the tenant of such property under the Rent Act and its Amendments.

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Records of employees

Question: Is it necessary to keep the records of employees by the Employer under the Shop and Office Employees Act?

Asantha de Silva,

Dehiwala.

Answer: Employers are obliged to maintain certain specified records in respect of their employees, namely:

a) A register indicating the actual hours worked, overtime worked, and leave obtained, which should be signed by the worker at a specified period.

b) A service record, indicating vital information relating to recruitment of the employee, with necessary changes indicated therein from time to time, such as the grant of increments, promotions, variation of conditions of employment and all other changes that would have affected employment.

c) A remuneration record containing the vital information in relation to each period. Such information being name of the employee, age, sex, class of grade, designation/occupation, remuneration period, number of hours worked, overtime hours, rate of remunerations, allowances, gross remuneration with deductions in respect of any pension or provident fund, income tax or court recoveries and balance pay with overtime remuneration accompanied with the employee’s signature in acknowledgement.

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Divorce through mutual consent

Question: I was married legally to a man who is younger than me and have no children. We were living together for the past 15 years. I heard that he had another relationship and she is expecting a baby from him.

That woman came to visit me and requested me to do something for him. Finally, I realised it is better to divorce him. I do not want to trouble him and do not want to ask maintenance from him. He is a poor guy. Please let me know if there is any way to divorce through mutual consent. Please advise me?

M. Daisy,

Moratuwa.

Answer: Under the General Marriage Ordinance Act No. 19 of 1907 and its amendments there are only three grounds for divorce. They are:

A. Incurable impotency at the time of marriage

B. Adultery

C. Malicious or constructive malicious desertion

According to your question, it is very clear that you can divorce your husband on the ground of adultery. After filing a divorce action, if the defendant is not willing to contest the case, the defendant can inform court that he is not contesting the case. If so, the other party can get Decree Nisi after leading of such evidence. After that you can get Absolute Degree.

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Our elder brother has passed away. We are now deprived of our ancestral property

Question: I wish to state my query in brief as follows: Our family consists of nine members, five sons and four daughters. The eldest in the family was my brother, who died about one year ago after a brief illness. He had no children, but one of my sister’s eldest son was helping him and his wife.

Both of them looked after him from the age of 15 years. The elder brother in the family was not supporting the other members of the family, due to pressure brought by his wife, who was not in good terms with the parents and other members of the family.

After some time my elder brother’s wife too died and all family members got together and attended to the final rights of eldest sister-in-law leaving any room for others to criticise.

However, after their demise, we found the deed of the property that we are living had been transferred to our sister’s son as a gift prior to my elder brother’s demise on the instigation of his wife. My parents are not living at present. This course of action by our elder brother has deprived us of our ancestral property inclusive of his newly built house, and valuable furniture.

We have come to know that this boy, after getting married recently wanted to sell this property to an outside person, not heeding his parents’ wishes, as well as other relations. In the circumstances, please let us know (brothers and sisters) whether we have any legitimate claim to this property, to acquire and divide it among other members of the family, who do not get an inch of land from the parents.

Mrs. L. T. Fernando,

Mount Lavinia.

Answer: According to your letter you have not mentioned as to how your elder brother acquired the ancestral property. If your elder brother has a clear title for such property, he can transfer or gift it to anyone. If he does so, you and your heirs have no right to challenge his activities.

But if he doesn’t have any right for such property, you can take legal action against him. If he has no clear title, or your parents have not left a Last Will, you or your heirs can file a Declaratory action regarding such property.

If you need further clarification and advice, you can visit one of our Legal Aid Centres. Normally, the Legal Aid Commission does not file testamentary cases or declaratory action but it only gives advice to such client.

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Terms and conditions of letter of appointment

Question: I want to know what terms and conditions should contain in the letter of appointment under the Shop and Office Employment Act.

S. Seetha,

Peradeniya.

Answer: It is a fundamental requirement under this Act that an employer issues a letter of appointment detailing the conditions of employment to an employee. This ensures to the employee certain inalienable rights under the law. Such a contract should contain:

a) the name of the employee, the designation and the nature of the appointment.

b) the date on which the appointment takes effect.

c) the grade to which the person is appointed.

d) basic remuneration and the scale of remuneration.

e) whether remuneration is paid weekly, fortnightly or monthly.

f) cost of living allowance, if any, and other allowances, if any.

g) 1) the period of probation or trial, if any, and the conditions governing such period of probation or trial. 2) circumstances under which the appointment may be terminated during such probation or trial.

h) 1) conditions governing the employment. 2) circumstances and conditions under which the employment may be terminated.

i) Normal hours work.

j) Number of weekly holidays, annual holidays, casual and privilege leave, which such person is entitled to.

k) Overtime rate payable.

l) Provision of medical aid, if any, by the employer.

m) The provision of and the conditions governing any Provident Fund, Pension Scheme applicable to the employment.

n) Prospects of promotion.

All the aforesaid particulars, duly authenticated by the signature of the employer, have to be given in writing to the employee in the language with which he is fully conversant; the employee has to acknowledge receipt of such information on a duplicate to a person retained by the employer.

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Divorce under Kandyan Law

Question:What is the law relating to divorce under the Kandyan Law?

L. Dharmadasa

Alawwa

Answer:

Law Governing Kandyan Sinhalese

Persons subject to the Kandyan Law may be married under the Marriage Registration Ordinance or the 1952 Kandyan Marriage and Divorce Act. Pursuant to a 1995 amendment to the Kandyan Marriage and Divorce Act, the minimum age of this age requirement are void unless the parties cohabit as husband and wife for one year after attaining the legal age, or if a child is born within marriage before either party has closely related individuals.

It renders a second marriage invalid if the first is not legally dissolved. As opposed to the general law’s lack of a registration requirement, registration is a crucial aspect of the act.

The consequences flowing from a kandyan marriage depend on whether the marriage is contracted in diga or binna. In a diga marriage, which derives from a patriarchal system, the bridegroom brings his bride to his own house or that of his parents, and she becomes a member of his family for the duration of the marriage.

466 In a binna marriage, which is perhaps older in origin and derives from a matriarchal system, the husband is brought to the house of his wife or her family.

The Kandyan Marriage and Divorce Act governs divorce among only those Kandyans married under the act. The act recognizes some differing grounds of divorce for men and women. Divorce may be sought on the following grounds:

1. Adultery by the wife;

2. Adultery by the husband, coupled with incest or gross cruelty;

3. Continued and complete desertion for two years;

4. Inability to live together, of which actual separation from bed and board for one year is the test: and 5. Mutual consent.

Under the act, an application for divorce is made to the district registrar, who may use discretion in granting or refusing to grant the divorce. The Marriage Registration Ordinance governs divorce between Kandyans who choose to be married under the general law.

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Trade Unions and the Government Sector

Question: What are the special provisions applicable to public sector trade unions?

Sudharshi Fernando Seeduwa

Answer: The Registrar shall not register a public sector trade union unless the rules contained that membership will be restricted to public servants. Only officers of different grade in one department or officers of the same grade in different Departments can unionize.

Judicial officers, members of the armed forces, police officers, prison officers and members of agricultural corps under the Agricultural Corps Ordinance shall not be registered as trade unions.

In case of peace officers or government staff officers amalgamation is prohibited and these unions cannot have any political object or political fund. Public sector unions can have only two outsiders as executives and one shall either be president or secretary of the union.

Awards ceremony on February 23

The LAC in co-operation of the Ministry of Education conducted an island wide Essay Competition in Sinhala, English and Tamil. Over two thousand students’ essays were received and were marked by a Panel chaired by the Deputy Director of Judges, Institute of Justice, P.H.K. Kulatilake. The following students have won the first three places. Additionally thirty others have been selected to consolation awards.

The Awards ceremony will be held in the Central Bank Auditorium, Rajagiriya on February 23 at 2.00 p.m. presided over by the Minister of Education Susil Prem Jayanth.

The list of winners are:

Sinhala Medium

1. W. M. G. Niwanthika Wickramasinghe

CP/Kon/Harangala MV,

Horagasmankada,

Nawalapitiya.

2. W. G. S. Damayanthi Kumari

AM/Dehiattakandiya N.S.,

Dehiattakandiya.

3. H. D. Subodhi

H/Thalawa M.V.N.S.,

Kariyamaditta.

Tamil Medium

1. Puvaneswarna Pawithra

BT/St. Michael’s S.,

Batticaloa.

2. M. F. Fathima Fasriya

K/Enasalgolla Central College,

Deltota.

3. Rasalingam Ramya

BT/Hindu College,

Valachchenai.

English Medium

1. Himeshi Praveenie De Silva

Visakha Vidyalaya,

Colombo.

2. Sumedha Kelegama

Trinity College,

Kandy.

3. F Rizka Ruwaiz

AQL International Girl’s School.

Yamuna Kumari, AAL
Head of School Program and Essay Competition

Developmental Legal Desk - 9

Internally Displaced Persons’ Desk:

Sri Lanka is unfortunate as both the conflict and the Tsunami disaster had displaced nearly one million people.

As IDPs are primarily the responsibility of the state, international humanitarian support is funded based on

 accepted guiding principles on Internal Displacement developed by the UN Secretary General’s Special Representative, Francis Deng, and adopted by the UN General Assembly in 1998.

The Internally Displaced Persons’ Desk of the Legal Aid Commission was set up mainly for the following purposes.

1. To create an Awareness of Deng Principles among IDPs Government Officers who are working in IDPs and school students.

2. To provide free legal advice regarding loss of Property, Pension, E.P.F., E.T.F. and Fundamental Rights of IDPs.

3. To keep the relevant Government Authorities informed of the plight of the IDPs.

The Internally Displaced Persons’ Desk is headed by Kirija Nimalatheva, Attorney - at - Law who coordinates the above programmes.

35th LAC center opens at Matugama

The Legal Aid Commission will open its 35th Center at the Matugama Courts Complex premises on February 14 at 9.30 a.m.

Minister of State and Legal Reforms Dilan Perera on the invitation of S. S. Wijeratne, LAC Chairman and Tissa Wijesinghe, President of the Matugama Bar Association would be opening the LAC Center in the presence of judges, lawyers, court officials and the general public. Retired Supreme Court Judge, Justice Hector S. Yapa will also participate at this opening ceremony.

Achini Adikari, Attorney-at-Law would be in charge of this Center.

Disclaimer

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

Please send in your questions in brief to - The Chairman, Daily News Legal Aid Page, Legal Aid Commission, No. 129, High Court Complex, Hulftsdorp Street, Colombo 12.

Email - [email protected]