Introduction - Failed states and Western double standards

A few weeks ago in an introduction to this page it was mentioned how the internationally derogatory term of failed state came to be applied to certain Sovereign States by two Non-Governmental Organizations, US Based Foundation for Peace and the Foreign Policy Magazine.

Three years ago, The FP and FP Index was first compiled based on electronic information available in the internet and publications through a computer programme named Thomson Dialog.

The Legal Aid Page also emphasised the essential link between Failing States and the Shrinking States, the latter phenomenon is advocated by the Western Market Economics.

Privatisation of all human activities including water and resource control, education even garbage removal is traditionally included among the social justice activities, historically performed by the State Sectors. Sri Lankan Governments have divested many of the service industries like insurance, milk, cement and pharmaceutical.

This has reduced the responsibilities of elected Governments and made them less powerful than few years ago. The State has withered not in the Marxian sense but becoming smaller and weaker in wielding social influence and thus becoming less important in the process. However, sadly FP and FP index makers have ignored this global process.

Sri Lanka continues to be in remarkable position in the annual development index of the UNDP among the middle level developed countries. Sri Lankas literacy rate has passed 90% and the life expectancy has arisen to 76 years. In the health sector infant mortality has fallen below the 10 for 1000 births. These indicators are not those of a Failed State.

These are the efforts of the leaders with far sight. It is my view that a respectable level of human development is far superior to development of mega highways and highrise concrete buildings.

The 12th indicator in the FP and FP index, namely, Intervention of Other States or External Political Actors in the internal affairs of Sri Lanka needs review by the political and business leaders. Globalisation is the single word used to describe the economic process by which transnational Companies intervene in less developed markets and change the economic, social and cultural integrity. It is an inescapable process to which many poor countries have become victims.

The second insidious way interfering in other countries is the human rights deficit. Respect for human rights has been a historical and religious tradition of Sri Lankan society since the advent of Buddhism, two thousand five hundred years ago.

In Buddhism human beings are not created but are born equal and as profoundly explained in Sampasaddniya Suttanta of Diga Nikeya. It is by self effort that human development takes place.

The philosophy of non-violence, tolerance and compassion from the basis of Buddhist doctrine of human rights, as reflected in post Second World War 1948. The Universal Declaration of Human Rights, the modern, Magna Cartar of Human Rights.

The Right to life is the first precept in Buddhist law of life shared by many religious and right to private property is the second principle of basic Buddhism.

The Universal Buddhist doctrine of equality is the basis of global human rights doctrine. Sri Lanka's independent Human Rights Institutions, The Legal Aid Commission, the Human Rights Commissions; the Ombudsman should draw deeply from these resources.

A society largely founded with these inherent human values cannot be described as a Failed State merely because Sri Lanka has become an unfortunate victim of a protracted internal conflict multiple actors.

S.S. Wijeratne

Questions and Answers

Can we mortgage land written in name of our son who is three years old to obtain a bank loan.

Question: Thank you for your valuable service offered through the Daily News Legal Aid Page. I would be grateful if you could answer my query as early as possible.

My wife has a land in Kandy and I built a two storey building on that land which is not completed yet. Last year we transferred this land to our son who is three years old keeping our life interest. Recently, I went to a bank to apply for a loan in order to complete the construction of our building.

Then I was told that we cannot mortgage this land and get a loan because it has been written to our son who is a small child. I was also told by a Legal Officer at this Bank that this has to be settled in courts if we need to mortgage this land.

Can you please advice us as to what steps we should take.

P. Jayawardena, Kandy.

Answer: The Bank has no legal right to grant a loan to you on the mortgage of the aforesaid land because the owner is a minor. However, you can file curator guidance case in the District Court and obtain permission from court to improve and complete the minor's property by Bank loan. After obtaining the order from court you can mortgage the aforesaid land to the Bank and obtain a loan from the Bank at its discretion.

Pension query

Question: I married a teacher before he got retired. He was not married before. We have no children. But I had a child from my previous marriage. I want to know whether after my second husband's death my child and I are entitled to his pension.

Anuradha, Katupotha.

Answer: Under the pension minutes and circulars if you had married your husband before his retirement and if your second husband is not married before, then you are entitled to get his pension. However, your child is not entitled to his pension.

Records company should keep and for what period?

Question: As per the new Companies Act what are the records a Company should keep and for what period? Your reply would be greatly appreciated.

S. Tissera, Battaramulla.

Answer: (a) the Certificate of Incorporation and the Articles of the Company - 10 years.

(b) Minutes of all meetings and resolutions of Shareholders passed within the last ten years;

(c) An Interests Register, unless it is a private company which is dispensed with the need to keep such a Register;

(d) Minutes of all meetings held and resolutions of Directors passed and Director's Committees held within the last ten years;

(e) Certificates required to be given by the Directors under this Act within the last ten years.

(f) The Register of Directors and Secretaries required to be kept under Section 223;

(g) Copies of all written communications to all Shareholders or all holders of the same class of shares during the last ten years; including annual reports prepared under Section 166;

(h) Copies of all financial statements and group financial statements required to be completed under this Act for the last ten completed accounting periods of the Company.

(i) The copies of instruments creating or evidencing charges and the Register of charges required to be kept under sections 109 and 110.

(j) The share Register required to be kept under section 123; and

(k) The accounting records required to be kept under section 148 for the current accounting period and for the last ten completed accounting periods of the company.

Directors responsibilities/duties as per New Companies Act No.07 of 2007 Question: What are the Directors responsibilities/duties under the new Companies Act No. 07 of 2007?

G. Vigneswaran, Bambalapitiya.

Answer: Under the new Companies Act No. 07 of 2007, the Directors duties/responsibilities are -

1. Directors may delegate to a Committee of Directors or a Director or an employee or any other person some of the powers excluding what is specified under sixth schedule.

However the Board remains responsible.

2. A Director shall act in (a) Good faith in the interest of the Company (if articles permit, he could act in the interest of Holding Company which owns 100% of his Company.

3. A Director shall act only in terms of the Provisions of the Act & Articles of the Company.

4. A Director shall not act in a reckless or grossly negligent manner.

5. A Director shall exercise the degree of skill and care that is reasonable be expected of a person of his knowledge and experience.

6. A Director could reply on reports, statements, financial data prepared on professional or expert advice given by an (a) employee, (b) Professional Advisor or Expert, (c) Committee of Directors or Director mandated for a purpose. Provided he acts in good faith, makes proper inquiry and has no knowledge that such reliance is unwarranted.

7. A Director shall disclose any interest in any transaction. Subject to the provisions in the Articles, he could vote.

8. A Director (or employee) shall not act on, use or disclose information he is privy to unless it's for (a) the use of the Company or (b) is required by low or (c) permitted under the Articles or (d) authorized by the Board so to do.

9. A Director shall disclose his share transactions.

Victims of crime can seek relief from NCVC and LAC

Question: I met a poor family whose daughter had been hired as a domestic servant. This servant girl has been raped by the head of the house who is a rich man. She is now pregnant This poor family is not aware of the law. Are there any institutions who can assist this poor family to obtain relief or compensation.

Dr. Kumara, Modara.

Answer: She can seek legal relief from the Legal Aid Commission, Head Office in Colombo or from the 35 Legal Aid Centers island wide. Tel No 433618.

There is an Institution called the 'National center for Victims of Crime (NCVC), the details of which are given below:-

The Director, National Center for Victims of Crime, No.211, Supreme Courts Complex, Colombo 12. Tel. No. 2391777/2438909, Email:[email protected]

Co-ownership of land

Question: I am a law student. Please let me know the rights of a co-owner.

Lakmini Fernando, Chilaw.

Answer: When two or more people own land jointly, they own the whole of it in undivided shares which may be equal or unequal. Since every inch of the land is owned jointly, each co-owner is entitled to possess any part of it.

However, a legally recognised practice has developed whereby each co-owner may, with or without the consent of the others, cultivate or reside on a portion of the land which is proportionate to his share of the whole, provided that the use to which he puts the land is a use that is natural or necessary in the circumstances.

For instance, one co-owner cannot, without the consent of the others, put up a building on a land that has hitherto been used only for growing crops, nor can he take a disproportionate amount of road frontage from the land.

A co-owner cannot dispose of a divided portion of the land but can dispose of his undivided share to another person. However, he can sue a trespasser for ejectment from the whole land without joining the other co-owners as parties.

This is because possession by one co-owner is regarded as possession on behalf of all. For this same reason, however, the law of prescription does not operate between co-owners unless there is very clear evidence that one co-owner has ousted the others and held the land as sole owner for the required period.

Such an ouster need not be forcible, but there should be clear manifestation that the ousting party possessed as sole owner, adverse to all others. A co-owner who wishes to terminate the co-ownership and become owner of a divided share can effect a partition of the land either amicably by deed of partition signed by all co-owners or by instituting a partition action in court.

How to file a case to claim compensation

Question: My son died on July 06, 2006 in an accident in Polonnaruwa We are very poor and we have no income to live. How can we file a case to ask for compensation against the other party?

Amarajeewa, Polonnaruwa.

Answer: You can file an accident case in the District Court of Polonnaruwa. However, the case has to be filed within two years from the date accident. In your case, you have to file a case before the 6th of July 2008.

As you state you are very poor and receive no income, the Legal Aid Commission can assist you in the matter, free of charge. Kindly call over at the Legal Aid Commission, Regional Office at Polonnaruwa (027-2226572)

Divorce

Question: I am 31 years old. My marriage took place before the Registrar of Marriages at Kalutara two years ago. Now I want to divorce him. Please let me know on what grounds can I divorce my husband .

Nadee Tushara, Kalutara.

Answer: According to your question, your marriage is legal under the General Marriage Ordinance. As such, if you want to nullify your marriage, you have to file a divorce case. In the event of filing a divorce action, you have to prove one of the following grounds:-

(a) adultery

(b) incurable impotency

(c) desertion

Is there any provision to ask for maintenance for disabled child?

Question: I am a poor mother of a disabled child. The father of the child is neglecting him. He is a rich man I want to know whether there is any provision to ask for maintenance for this child.

Seela, Kotte.

Answer: Under the Maintenance Ordinance Amended Act No.37 of 1999, there is provision to ask for maintenance to a disabled child from their parents. Under this Act the Court will look at the circumstances of the case. In this regard the paternity has to be established. Today the DNA tests provide such facility.

An application for maintenance may be made -

(a) where such application is for the maintenance of a child or disabled offspring, by such child or disabled offspring or by any person who has custody of such child or disabled offspring.

The application for maintenance may be made to the Magistrates Court within whose jurisdiction the applicant or the person in respect of whom the application is made or the person against whom such application. if you need further help you can visit our LAC head office at Colombo.

Whether employee should notify when leaving employment?

Question: I am handling personnel work in my Company which has over 3,000 employees. There are a series of forms under the EPF Act. I am confused. I would like to know

(i) Whether an employee should notify when he leaves employment

(ii) Whether an employer should notify when he leaves employment

Are there any forms for (i) and (ii) above? I contacted the Labour Officer regarding the Forms, but I am unable to get direct reply. Please advise me as to what are the Forms under the EPF Act and what are they used for.

M. Fernandez, Boralesgamuwa.

Answer: The Forms go from A to R.

i. 'A' Employee's record Card.

ii. 'B' Certificate of Membership.

iii. 'C' Return of Earnings of employees and contributions.

iv. 'D' Particulars of employees.

v. 'E' Notification by employee on his leaving employment

vi. 'F' Notification by employer that the employee has ceased to be employed.

vii. 'G' Form to be filled by employee stating his previous EPF No. This is to connect up individual Account.

viii. 'H' Nomination.

ix. 'I' Revocation of nomination.

x. 'K' Claim for EPF benefits from the member.

xi. 'L' Claim for EPF benefits after the member's death by his nominee.

xii. 'M' Medical Certificate to claim EPF benefits.

xiii. 'N' Statement of contributions transferred from any Provident Fund or contributory pension scheme to the Employees' Provident Fund.

xiv 'O' Notice under section (11) of the Act of the employees and employer electing to increase the monthly contribution to EPF.

xv. 'P' Notice under Section 38 giving the amount due as EPF and leading evidence to prosecute for recovery.

xvi. 'Q' Application for refund of contributions made to the Fund in error.

The answer to '(i) Yes. Form 'E'

(ii) Yes. Form 'F'