Introduction:

Victims and Witnesses assistance protection

Sri Lankan law enforcement authorities had been grappling with rising serious crimes, grave violation of Human Rights and mega cases of corruption for the past two decades without any visible trend in reduction.

The primary reason for this situation is the conflict in the North East. In any country which is unfortunate to face prolonged military conflicts, the law and order situation is the first casualty and ordinary citizens are the first victims. Normal judicial process stops functioning in conflict areas.

Impunity reigns in conflict areas and victims of crime, HR violations and debilitating corruption and witnesses to such incidents hardly come before authorities or judicial tribunals for fear of reprisals from armed groups and forces. The only internationally proved strategic method to deal such with situation is to establish an effective, credible victims and witnesses assistance and protection programme.

Following the 1985 UN Declaration on Victims of Crime and Abuse of Power, many countries have established victims and witnesses protection assistance programmes. In Asia, the Philippines, Thailand and Indonesia have adopted legislations for VWAP programme. The National Law Commission of India has recommended enactment of legislation.

Sri Lanka lags behind in this respect. From 2002, the National Center for Victims of Crime (NCVC) whose Advisory Council consisting of all apex figures of the Criminal Justice system have been urging the authorities to enact VWAP legislation.

In fact the National Law Commission (NLC) under the Chairmanship of Justice Dr. A. R. B. Amarasinghe in 2003 presented a Draft Bill to the Ministry of Justice and Judicial Reforms. Last week the NLC completed a new version of the law prepared by the Attorney-General which was presented to the stakeholders.

Draft Bill not limited to court cases but includes Commission of Inquiry

With the appointment by President Mahinda Rajapaksa in November 2006, the COI to Investigate Serious Human Rights Violations with 16 incidents where fundamental right to life has been violated, the COI had to establish the VWAP Unit in December 2006 to accomplish its mandate successfully. The President also invited eleven International Independent Eminent Persons (IIEGP) to observe the investigation and inquiries by the COI with group assistants to help them.

The 16 cases of serious violation of human rights cannot be successfully investigated due to the non availability or the reluctance of victims and witnesses to volunteer to provide statements for fear of reprisals to them and their families from armed perpetrators. Many potential witnesses have been threatened and continue to be threatened with dire consequences if they were to give evidence.

Some important witnesses have gone into hiding both in Sri Lanka and abroad. The task of the Commission will not be successfully completed even with observation from an IIEGP, if VWAP programme could not provide credible assurance to reluctant witnesses that they and their families could join the VWAP programme and receive protection and assistance for their human security.

Confidentiality and anonymity

The core pillars in a successful VWAP programme for victims and witnesses’ protection are confidentiality, anonymity and operational flexibility. The VWAP programmes in other countries specially in the USA, Canada, Australia and the Philippines have ensured in their legislation the financial independence and confidentiality of the process.

The Draft Bill should have more clear provisions on this fundamental requirement. Another provision that would lead to some controversy is entrusting victims and witnesses protection to a Special Police Division.

As the majority of Defenders in Fundamental Rights Violation cases specially in respect of torture are police personnel this provisions needs rethinking. Public credibility in a witnesses and victims programme is the key to success.

S. S. Wijeratne

Questions and answers

EPF contribution and yearly interest

Question: I shall thank you to publish the under noted question in your Legal Aid Page under questions and answers.

“It is mandatory by the employer to send the joint contribution to the Central Bank as per the EPF Act.

For some reason or other, say, a person who is not having employment, is not in a position to ask for EPF and other benefits when he goes to an employer for employment.

If the employee honestly and efficiently worked for about 10 to 15 years, and if the EPF contribution had been paid the accumulated yearly interest would be a handsome amount.

In such a case, when the EPF is claimed, the quantum of EPF is a awarded to the employee, the penalty to the Labour Department, and the quantum of accumulated yearly interest is not worked out and given to the employee.

Is it possible to work out accumulated interest and claim from the employer.

- S. Kottahachchi,
Kalutara South.

Answer: 1) If the Employer fails to send joint contributions to EPF, he will be liable to pay surcharge on the defaulted amount.

2) With regard to the interest it is computed by the Monetary Board and the employee cannot work out the interest and claim from the Employer.

If there is a default in payment, the employee should lodge a complaint with the Commissioner of Labour.

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Is photocopy of ‘B’ Card sufficient to get EPF claim?

Question: I was working in a Garment Manufacturing Industry in Colombo from May 2, 1983 to December 31, 1990. I got my ‘B’ Card when I left my employment. Now I am doing my own business. Last week, when I was arranging my cupboard I found that my original ‘B’ Card had gone missing. I think this happened when I shifted my house from Colombo 13 to Colombo 15 after my marriage. but fortunately I got one photocopy of same.

Please let me know whether the photocopy is sufficient for me to get the claim at the time of retirement or if I have to produce the original? How do I obtain the same? For your information the Company is not existing now. It has closed, bankrupt.

Please advice me.

- Mohamed Fahim,
Colombo 15.

Answer: You are fortunate that you have a photocopy of the ‘B’ Card. It is easy to get a duplicate ‘B’ Card with your photocopy. You should visit the EPF Department at the Labour Secretariat, Narahenpita. You may have to complete a Form furnished to you by them. You will thereafter get a duplicate copy of the ‘B’ Card.

Since the Company is closed it is advisable for you to check with the Department whether the Employer has contributed towards your Provident Fund. If they have not done so the Department will examine the registers available with the Registrar of Companies and ascertain the correct position and thereafter obtaining the addresses of the Directors, prosecute the Directors of the Company for failing to contribute towards your Provident Fund. The Directors are personally liable and there is no time limit for prosecution.

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Private Provident Fund balance

Question: I worked in a blue chipped Company from 1979 to 1998. I was forced to give my resignation when they implicated me for a fraud. After a long drawn out legal battle the matter came to a halt in 2000. This Company had a private provident fund approved by the Commissioner of Labour. They did not release my Provident Fund contributions for which I too have contributed as my contribution and this was apparently set off against the alleged losses as they think that I am responsible for. I managed to get ETF released through the intervention of ETF officers in early ‘90s. Can a company set off the Provident Fund balances in a private account? Do I have a claim on my Provident Fund balance? Is there a time bar? It is almost 19 years since I left that Company. Can I claim interest on my balance up to date? What is the legal position and what legal remedies do I have?

- PF - Moratuwa.

Answer: Yes, You have a claim on your Provident Fund balance. The employer cannot recover from your Provident Fund the losses they have suffered. There is no time bar to claim EPF contributions.

You should make your complaint to the Commissioner of Labour to claim your EPF contributions that has been withheld. You have a right to claim interest on the balance upto the stage your claim is paid.

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Types of ‘leave’ employees on probation and permanent staff

Question:

I would like to know what type of ‘leave’ employees of probation and permanent staff is entitled? I understand they are as follow:

Probation staff Permanent staff

1/2 day leave per month 07 days casual

14 days annual

14 days sick

I want your confirmation please.

- L. Jansze

Kandana

Answer:

Probation Staff

The Shop and Office Employees Act makes no definition between permanent and probationary employees. A probationer is therefore entitled in the first calendar year of employment on the basis of one day for each complete period of two months service and not 1/2 day leave per month. The Act does not provide for 1/2 day’s leave.

Permanent Staff

Under the Shop and Office Employees Act, it is in the second calendar year an employee qualifies for 07 days casual leave. The casual leave includes leave for private business, ill health or other reasonable cause.

The Act does not provide for 14 days sick leave.

The employee will qualify for annual leave of 14 days after completing one year of employment with the Employer.

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Payment of Gratuity Act No. 12 of 1983

Question: I am a senior officer in the Negombo Municipality. I have to my credit 30 years service. I would like to know wether I am entitled to gratuity under the Payment of Gratity Act No. 12 of 1983. I am a workman under the definition ‘workman’ in the said Act.

- M. Tissera,

Negombo,

Answer : The answer is “No”. The reasons are as follows:

Sec. 5 (1) of the Payment of Gratuity Act No. 12 of 1983 states that every employer who employs or has employed fifteen or more workmen is liable to pay gratuity. The definition of the word “Employer” specifically excludes local authority.

The words “local authority” means any Municipal Council, Urban Council, Town Council or Village Council. Liability is imposed only on the employer. Your claim on the basis of the definition of the word “workman” cannot be sustained in view of Sec.5 (1) of the Act which imposes liability exclusively on the employer.

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EPF query

Question: I was employed at an advertising agency on an open-ended contract basis with a consolidated salary of Rs. 20,000 a month. I had quit employment for ten years prior to that to do my own consultation work. Hence, when I returned to employment I had lost track of new rules pertaining to an employee’s entitlements and an employer’s obligations.

I quit that post for alternate employment. I now understand that I was entitled to EPF membership, contributions from the employer and deductions from my salary towards the fund. I was however not informed of these rights and obligations regarding EPF benefits by that employer.

My current employer has not resorted to any such deception and though I am 63 years old, has made deductions from my emoluments and remitted them along with his contributions to the EPF Department of the Central Bank.

Is it possible for me to hold my previous employer responsible for being in default, legally, in not facilitating EPF entitlements to me while I was employed there - and is it possible for me to claim the monies he should have contributed to a fund in my name at the EPF Department?

It will work out to only around Rs. 20,000 plus interest - but as I require half that amount monthly for treatment of a serious heart disease, it will be a considerable relief to me financially. How do I go about making my claim? It is now almost ten months since I left employment under that employer.

Your early response would be greatly appreciated.

- Philip, Wadduwa.

Answer: Yes. You can hold your previous employer responsible for having failed to contribute towards your Provident Fund. The employer should have contributed 12% of your salary towards the Provident Fund and deducted 8% from your salary, being your share of the contribution.

There is no prescriptive period for EPF. You can therefore make your claim by lodging a complaint with the Commissioner of Labour giving your period of employment and the salary drawn by you.

Once your complaint is lodged, the Commissioner of Labour will hold an inquiry and thereafter make order directing the employer to deposit 20% of your salary with the surcharge towards the Provident Fund. If the period of default has exceeded one year 50% of the amount due as default has to be deposited as surcharge.

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Why rate of contribution to EPF has not changed for more than 26 years?

Question: I am aware that the Employees’ Provident Fund came into operation on 01.06.1958 and the rate of contributions to EPF from 1958 onwards is as follows:

Period Employer Employee

1958 to 31.12.1970 6% 4%

01.01.1971 to 31.12.1980 9% 6%

01.01.1981 upto now 12% 8%

The rate of contribution from 01.01.1981 onwards remains unchanged for more than 26 years. The cost of living is spiralling sky high. Changes are taking place in everything.

Why is it that the rate of contribution has not been changed for more than 26 years? What should be done to see that a change in the rate of contribution to EPF which is long overdue is done? I am a Member of a leading Trade Union.

- Member of a Trade Union

Answer: This is a question for policy decision by the Government. Your Trade Union can represent matters to the Minister of Labour.

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Medical negligence

Question: I went to get Medical test for my son at a reputed Medical Center as he had to go abroad. According to the medical report my son is reported to be having VD. On hearing this report there were family disputes and as a result the mother got mentally upset. Thereafter the son was taken to another Medical Center and according to the second Medical Report, he was found to be perfectly alright.

In a situation like this, please let me know where should I report this matter.

-S. Mohamed, Kalutara.

Answer: In this case, you can make a complaint to the Medical Council at No. 31, Norris Canal Road, Colombo 10. Tel No. 2691848.

You can make your complaint in writing or personally visit the Medical Council.

An affidavit and the receipt in proof of channelling the doctor have to be submitted along with your complaint.

You can also file a case in the District Court against the party on grounds of medical negligence.

Legal Aid Commission to celebrate international days

The LAC Development Legal Aid Desks are making preparations to create islandwide Awareness Programme through its 36 Centers to celebrate the following UN Days commencing from 01st October. Principals of schools are invited to contact the LAC to arrange lectures on the importance of these International Days:-

October 01 - International Day for Older Persons and International Children’s Day.

October 02 - United Nations Day and World Development Information Day

November 16 - International Day of Tolerance

November 20 - Universal Children’s Day

November 25 - International Day for the Elimination of Violence against Women

December 01 - World AIDS Day

December 03 - International Day for Disabled Persons

December 09 - International Anti-Corruption Day

December 10 - Human Rights Day

December 18 - International Migrants Day

Quotes from judgements:

Baker vs Carr

Judicial intervention in political conflicts

“Judicial intervention in essentially political conflicts may well impair the Court’s position at the ultimate organ of the supreme law of the land in that vast range of legal problems, often strongly entangled in popular feeling, on which this court must pronounce.

The court’s authority... possessed of neither the purse nor the sword... ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the court’s complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.”

Frankurter J

369 US 186 at 267-268

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.

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