Introduction - Legal Empowerment of poor (LEP)

The Commission of Legal Empowerment of the Poor (LEP), the first global organisation on legal aid and poverty alleviation had its first meeting on 20th January 2006 hosted by the UNDP and supported by the then President of the World Bank. The Commission comprises of eminent global leaders and is chaired by former US Secretary of State, Madeleine Albright and Peruvian Hernando de Soto.

Minister of Tourism Milinda Moragoda is a member of this high profiled Commission along with leaders like British Prime Minister, Gordon Brown, former Presidents, Mary Robinson of Ireland, Ernesto Zedillo of Mexico, Benjamin Makapa of Tanzania and Fernando Cardoso of Brazil, Harvard University President Gordon Summers and US Supreme Court Justice Anthony Kenedy are among the Galaxy of 24 Commissioners.

Minister Morgagoda is to participate in the New York meeting. The Legal Aid Commission of Sri Lanka, the only statutory access to justice provider in this country wishes the Minister success in placing the case for a comprehensive access to justice program for the legal empowerment of the poor in Sri Lanka.

The LAC, welcomes the recent amendment to the Judicature Act to increase the number of High Court Judges from 40 to 60 intended to clear the backlog of appeal cases.

Delayed justice is an insurmountable obstacle in the path of the access to justice of the poor. However, increase of courts and judges should be accompanied by increased access to the courts and judges by the poor. One without the other is not legal empowerment of the poor.

The State has to increase its resource allocation to legal aid along with the addition of new courts to the judicial system. However, despite repeated pleadings by the LAC, the concerned officials have refused to provide even the minimum resources needed to establish Legal Aid Centers in the new court complexes.

The LEP super Commission should develop programmes to support and develop comprehensive access to justice programmes in developing countries like Sri Lanka. This has not yet happened except for two modest programmes - one Tsunami related by ADB and the other UNDP access to justice programme which is only an apology for legal empowerment of the poor.

On the other hand, traditional donor countries and organisations, except for a few, have virtually withdrawn from their sporadic legal empowerment programmes. This is a donor privilege but abrupt withdrawal from access to justice programmes leave the poor litigants worse off and stranded.

Legal aid programmes of one or two years duration is a semi justice perpetrated on the poor whose legal action takes 5 to 10 years for conclusion. Legal empowerment of the poor could be a global concept but should be adjusted to ground situation, legal culture and the degree of independence of the judiciary of each country.

S.S. Wijeratne

Questions and Answers

Issue of passport in lieu of lost one

Question: Please let me know the procedure for issues of passports in lieu of passports reportedly lost.

S. Joseph, Nawala

Answer: (i) Obtain confirmation from the local Immigration Authorities that the applicant has not obtained citizenship of that country and confirmation of the legal status regarding his/her presence in that country.

(ii) Ascertain the national status of the applicant by reference to documents produced - or from previous records, if available.

(iii) If the travel document required is for return to Sri Lanka, an I.C.O.M./N.M.R.P. should be issued.

(iv) If the applicant's stay is lawful, or he/she is gainfully employed and is unlikely to be stranded for want of funds, issue a normal passport may be considered.

(v) If the nationality of the applicant is not ascertainable, summon the applicant for an interview and forward his/her application along with the record of findings and recommendation of the Mission to the Controller.

(vi) If the applicant claims that he/she does not remember the number of the passport or NIC, and if only a copy of Birth Certificate is submitted, an interview of the applicant should be held by the officers of the Mission to establish his/ her Sri Lankan Identity.

The loss of a Passport should be reported to the Controller of Immigration and Emigration, Colombo, who maintains a register of lost passports.

The loss should also be reported to the nearest police authorities with a request that, in the event of recovery, the document be forwarded to the Controller of Immigration and Emigration, Colombo.

Is Company correct in reducing rate of contribution to EPF?

Question: I am employed in a leading Company in Horana. I have to my credit 25 years service. I am now 54 years old. On 1.1.2000 the Company and I on mutual agreement decided to increase the percentage of contribution to the EPF.

Accordingly, a notice was sent to the Commissioner of Labour stating that my contribution would be 10% and Company's contribution would be 15% Contribution were made to Central Bank from 01.01.2000 on the basis of 15% by me and 15% by Company.

From April 2005, I noticed that the Company has reduced its rate of contribution to the EPF to 12% and has recovered 8% from my salary. I asked the Management of the Company as to why the reduction in the rate of contribution was made. The response was that the Company was complying with the best and its financial position is such that it cannot afford to pay the higher rate.

I will be reaching 55 on 10.04.2008. I will be eligible to claim EPF benefits on reaching 55 years. Is the Company correct in reducing the rate of contribution to EPF? Can I claim EPF on the higher rate? Please advise me.

M. Juriansz, Boralesgamuwa

Answer: According to Section 11 of the EPF Act No. 15 of 1958, the notice of Commissioner of Labour to pay higher rate of contribution is irrevocable.

You may complain to the Assistant Commissioner of Labour, Kalutara who may take action to recover the higher rate together with surcharge. As the Company has failed to recover 10% from you according to the notice to Commissioner of Labour, the Company will have to pay the difference, i.e. 2% on your behalf in addition to the difference of 3% from it.

How long should employers maintain records?

Question Please let me know for how long should an Employer maintain records? What is the actionable period?

M. Sabaratnam, Colombo 3

Answer: Records must be preserved for a period of four years except for service records which are required to be kept for a minimum of two years.

The actionable period for all prosecution is six years from the commission of the offence. If dispute relating to any records arise within the actionable period which is six years but after the records have been dispensed with, employers could be faced with difficulties in justifying their positions without the relevant records.

It is therefore advisable to preserve records for a period of six years.

Can I claim gratuity from earlier company?

Question I worked in a well known Company (it was a group of Companies). I joined another Company but my earlier Company did not accept my resignation.

After I joined there my last Company gave me a lot of trouble. I thought I will not be able to claim my gratuity because I resigned, but recently I got to know that I can claim my gratuity if I file a case in the Labour Department because I have worked for 10 years.

But my problem is that the Group of Companies is closed but my Boss is still living somewhere in Colombo.

Please give me a clear advice on this matter.

M. Ismail, Dehiwela

Answer: If your Employer has more than 15 employees and your services have not been terminated for misappropriation of funds or causing any damage or loss of property of the Employer, your Employer cannot deprive you of your gratuity under the Payment of Gratuity Act No. 12 of 1983.

Since you have already resigned from your employment, you should make a complaint to the Commissioner of Labour to claim your gratuity against your employer. Entitlement of annual leave during period of resignation

Question: I am working in an NGO. I have given one month's notice to my Employer stating that I am resigning from my employment with effect from 31st July 2007.

I wish to know how many days of annual leave will I be entitled to. I have already utilised 07 days of my annual leave which I earned during the previous year.

G. Manel, Veyangoda

Answer: You will be entitled to take the balance 07 days of the unutilized annual leave and 01 day for each month from January 2007 to July 2007, being the year of termination. In all you will be entitled to 14 days of leave.

Disabled children in institutional care and assistance provided to them

Question: I understand that the Legal Aid Commission has set up various Developmental Legal Aid Desks and one of such Desks is the Disabled Persons Desk. I would therefore like to know through your valuable Legal Aid Page the following information:-

1. The total number of disabled children in the country; and

2. The type of assistance provided to disabled children in Institutional care.

A social worker from Chilaw.

Answer: As you are aware the Legal Aid Commission has set up 15 Developmental Legal Aid Desks and the Legal Aid Commission with its 33 regional centers islandwide conduct various programs to promote awareness among the community regarding the rights of the disabled and to stop discrimination of the disabled.

Special programmes are also organised by the LAC to mark the "International Day of Disabled Persons."

With regard to question No. 1, as per the information received by us from the Ministry of Social Services and Social Welfare, it is estimated that the percentage of disabled children is 7%. Since the accurate number of disabled children is not available, it is estimated to be about 460,000.

With regard to question No. 2, the following type of assistance is provided to disabled children in Institutional care:-

(a) Early childhood education,

(b) Pre-vocational training (disabled children who complete the age of 18 years) Occupational therapy and physiotherapy,

(c) Recreational programmes,

(d) Daily living skills care (the services being provided depend on the nature of the disability and resources available).

Is stamp duty payable on payment of pension?

Question: I am a retired Government pensioner. I want to find out whether the charge of stamp duty on payment of pensions gratuity, monthly pensions and other pensions is still in force.

Kindly also let me know the stamp duty charged under different categories.

I await your kind reply.

Boniface Salgado, Kohuwela.

Answer: No. The charge of stamp duty on payment of pensions gratuity, monthly pensions and other pensions under Pensions Circular No. 6/2007 has been repealed. The stamp duty charged under different categories are given below:-

1. Rs. 25,000/- to Rs. 39,999 - Rs. 25

2. Rs. 40,000/- to Rs. 49,999 - Rs. 40

3. Rs. 50,000/- or above - Rs. 50

Further the stamp duties charged for the affidavits that are submitted by pensioners are also not required further.

Can I claim my sister's pension?

Question: My sister died last month. At that time she was due to go on pension. I am her only brother who is 55 years old and unmarried. I am unemployed and my parents are also dead. I want to know whether I am entitled for my sister's pension?

K.P. Piyadasa, Kamburupitiya.

Answer: No. Under the Pension Minutes and Circulars you are not entitled to your sister's pension.

Annual leave

Question: I am working in an Audit Firm as a Clerk for the last two years. I have not taken any annual leave, neither the employer has asked me to take my annual leave. How many days of annual leave will I be entitled to for the last two years.

K. Godwin, Boralesgamuwa.

Answer: To earn your annual leave, you have to complete one year from the date of employment. The leave entitlement is as follows:-

(a) 14 days if employment commenced on or after 01st January but before 01st April.

(b) 10 days if employment commenced on or after 01st April but before 01st July.

(c) 07 days if employment commenced on or after 01st July but before 01st October.

(d) 04 days if employment commenced on or after 01st October but before 31st Dec.

I hope the answer given is very clear to you.

Re: Fundamental Rights application

Question: I am a poor villager. On the last Poson Poya day my son was questioned by the police and was arrested. He was also assaulted very badly by the police officers who were drunk. Now my son is in remand.

Please let me know whether this is a fundamental rights violation and if so where should I go?

G. Fernando, Dunkannawa.

Answer: Under the Constitution of the Republic of Sri Lanka, Chapter III Article 13 states as follows:-

(1) No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest.

(2) Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to procedure established by law and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law.

(3) Any person charged with an offence shall be entitled to be heard, in person or by an Attorney-at-Law, at a fair trail by a competent court.

(4) No person shall be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law. The arrest, holding in custody, detention or other deprivation of personal liberty of a person, pending investigation or trial, shall not constitute punishment.

(5) Every person shall be presumed innocent until he is proved guilty; Provided that the burden of proving particular facts may, by law, be placed on an accused person.

(6) No person shall be held guilty of an offence on account of any act or omission which did not, at the time of such act or omission, constitute such an offence and no penalty shall be imposed for any offence more severe than the penalty in force at the time of such offence was committed.

Nothing in the article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

It shall not be a contravention of the said Article to require the imposition of a minimum penalty for an offence provided that such penalty does not exceed the maximum penalty prescribed for such offence at the time such offence was committed.

(7) The arrest, holding in custody, detention or other deprivation of personal liberty of a person, by reason of a removal order or a deportation order made under the provisions of the Immigration and Emigrants Act or the Indo-Ceylon Agreement (Implementation) Act, or such other law as may be enacted in substitution therefore, shall not be a contravention of this Article.

According to your question, since torture is considered as a fundamental rights violation, you can file a fundamental rights action against the police within 30 days from the date of violation.

As you are a poor litigant, you can call over at the Legal Aid Commission, Head Office, 129, Hulftsdorp Street, Colombo 12, Human Rights Bureau or you can send a registered letter direct to the Chief Justice, Superior Courts Complex, Colombo 12. However, it is advisable to make a complaint to the ASP, SSP or the DIG.

List of Developmental Legal Aid Desks in Legal Aid Commission

Chairman - S.S. Wijeratne

01. Anti-Corruption Desk- Ms. Harshini Balaharuva, AAL

02. Apprentice Training Programme and Bench & Bar Desk- Ms. Damayanthi Dissanayake, AAL

03. Child Rights' Desk- Ms. Mahesha de Silva, AAL

04. Consumer Protection Desk- Ms. Lasanthi Palapathwala, AAL.

05. Disabled Persons Desk- Ms. Kalani A. Medagoda, AAL.

06. Elders' Right Desk- Ms. Pradeepa Nilmini, AAL.

07. Human Rights Bureau- Acting Head, Nuwan Peiris, AAL.

08. Internally Displaced Persons Desk- Ms. Kirija Nimalatheva, AAL.

09. Migrant Workers Desk- Ms. Lilanthi Kumari, AAL.

10. Prisons Desk- Ms. Thushari Sakuntala, AAL.

11. Protection of Women's Rights Desk- Ms. Priyangika Aththanayake, AAL.

12. Public Officers Awareness Desk- . Reginold Kumarasiri, BA, MA, MSSC.

13. School Programme & Essay Competition- Ms. Yamuna Kumari, AAL.

14. Labour and Environment Protection Desk- Dulan Weerawardena, Legal Officer.

Disclaimer

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

Your questions should be addressed to - Daily News Legal Aid Page, Chairman, Legal Aid Commission,

No. 129, Hulftsdorp Street, Colombo 12.
Email: [email protected]
Website:www.lawaid.org