Introduction - Protection of child rights

The children all over the world are considered a vulnerable group at home, school or in society. All the civilized countries have enacted child protection laws and set up institutions for the welfare of children.

The natural guardians of minor children are the parents in all countries of the world. The parents and children are termed as the family unit. Hence, Universal Declaration of Human Rights (UDHR 1948) in Article 16 (3) declares "family is the natural and fundamental group unit of society and is entitled to protection by society and the State".

With the on slaughter of economic globalization, the nuclear family is facing a great threat to increasing detriment of the children.

The deterioration of the unit of family is a dominant social trend in many countries. The divorce rates in many developed countries including the Scandinavian countries have crossed 50% of all marriages some time ago.

Divorce of parents adversely affects the mental well being and physical protection of children. This negative effect on children from rampant divorce rates are compounded by the new demographic trend of declining birth rates.

Certain developed countries have encouraged single motherhood to counter the Birth Dearth, over emphasizing the rights of the individual at the expense of the family. Trend has already weakened the protection of the family to many children in the world.

The global commitment to protect and promote the welfare of children, took a historical turn with the adoption of the United Nations Convention on the Rights of the Child (CRC) on 20 November 1989. The CRC came into force on September 2, 1990.

Sri Lanka ratified the Convention on July 17, 1991 but the Convention is not yet part of the law as Sri Lankan Parliament has not yet passed legislation to implement the principles.

The Child Protection Authority Act of 1998, like the 1995 Amendment to the Penal Code, Prevention of Domestic Violence Act No. 34 of 2005 and the Special Provisions in Tsunami Act No. 16 of 2005 are ad-hoc pieces of legislation which embody limited aspects of the Child Rights Convention.

The Child Protection Society founded in 1928 has played a significant role in Sri Lanka promoting the enactment of Children and Young Persons Ordinance No. 48 of 1938 which has formed the corner stone of child protection in Sri Lanka. Following the Child Rights Convention in 1995, Sri Lanka established the Child Protection Authority in 1998 which was empowered to provide islandwide legal protection to children through the courts system.

Children are the most valuable asset in any society. Their importance in human development has become even more poignant in Sri Lanka which has a declining Child population.

The birth dearth has hit Sri Lanka and the birth rate for mothers has fallen below the level of two children per mother which is the replacement level of population in any country. The task of child care givers has increased fourfold and protecting children has become a matter of survival of Sri Lankan society.

Questions and Answers

New pension scheme

Question: I want to know whether is there any pension scheme introduced to the people who are not in the Government Service.

Chaturangani, Kataragama.

Answer: Yes. The Government has introduced a new pension scheme to the people who are not Government Servants.

The Social Security Board was established in October 1996 under the Social Security Board Act No. 17 of 1996 which is the authority body for the protection of persons and families occupied in self-employment.

Under this Board a new pension scheme has been introduced to persons with disabilities called 'Samakadiriya', Practitioners of Indigenous Medicine - 'Helaweda Rekawarana', 'Sip Savira' for the handycraftsmen, 'Ran Kahawanu' for the migrant workers, and 'Diriya Kantha' for women.

For further details, you can contact the Social Security Board, No. 150 A, Nawala Road, Nugegoda. Tel. No. 011 2823614, 011 2823634.

Senior Citizens' identity card

Question: I am a senior citizen. Could you kindly let me know as to how I could get the Senior Citizens' identity card?

Mr. S. Paul, Colombo 4.

Answer: In order to obtain the Senior Citizens' Identity Card, you have to fulfill the following requirements:

(a) Above 60 years of age.

(b) Duly filled application form obtained by the Grama Niladhari / Divisional Secretary / National Elders' Secretariat.

(c) Stamp size photograph (3cm x 2cm) - coloured or black and white.

(d) Document to prove your age (NIC, Birth Certificate, Passport or Driving Licence). After the above-mentioned documents are submitted to the Grama Niladari or the Divisional Secretary's Office or the National Secretariat for Elders, you can obtain your Senior Citizens' Identity Card.

For further details, please contact: National Secretariat for Elders, No. 150 A, LHP Building, Nawala Road, Nugegoda. Tel. No. 2824082. Fax: 2826750. Email: [email protected]

Who drafts law of the country?

Question: I am an ordinary citizen of Sri Lanka. I would like to know as to who drafts the law of the country and who authorises laws to be drafted?

M. Jayamali, Passara.

Answer: There is the Department called the 'Legal Draftsmen's Department'. This department is mandated by the Constitution to draft all the laws of the country.

The Cabinet of Ministers decides what laws are to be made. Any Ministry which wants a law has to prepare a Cabinet Memorandum setting out the details for the proposed law.

Once the Cabinet approves the Memorandum, the Ministry will take the initiative to have the law enacted. The Legal Draftsman is authorised to draft the required legislation and submit it to the relevant Ministry.

Diploma in Forensic Medicine

Question: I am a lawyer who is practising in criminal law. I got to know there is a Diploma in Forensic Medicine and Science which will be useful to young lawyers who are practising in criminal law.

Please let me know further details of this Diploma Course.

P. Aththanayake, Kandy.

Answer: To fulfill a long-standing need, the Department of Forensic Medicine and Toxicology of the Faculty of Medicine, University of Colombo has organised a course leading to Diploma in Forensic Medicine and Science for the ninth year. The course offered lawyers, who would be in a position to benefit from an advanced knowledge of all branches of forensic medicine.

It is designed to suit even a busy lawyer who can spare a few hours during the weekend to attend lectures, seminars and practical demonstrations.

The main objective of the course is to provide up to date, advanced and relevant knowledge in Forensic Medicine and Science to members of the legal profession to enable them to have a better understanding of the interface between law and forensic medicine and science and to be better equipped to evaluate and consider expert medical and scientific evidence to expeditious and efficient adminstration of justice.

The next course will commence in October. For further details can be obtained from the Department of Forensic Medicine and Toxicology, Faculty of Medicine, Kynsey Road, Colombo 8. (Telephone 2694016, 2686142, 2695300).

Can a member of the public get involved in law making process?

Question: I understand that a member of the public can get involved in the law-making process. Is it so? Could you please explain this to me through your valued Daily News Legal Aid Page?

F. George, Thimbirigasyaya.

Answer: The Gazetting of a Bill, makes it a public document. The Constitution requires (Article 78) that every Bill must be published in the Gazette at least seven days before it is placed on the Order Paper of the Parliament.

Within one week of the Bill being placed on the Order Paper of the Parliament it is open to any member of the public to challenge any Bill in the Supreme Court by way of a written petition. No proceedings can be had in relation to such Bill in Parliament until the determination of the Supreme Court is forwarded to the Speaker.

Then the Bill can be debated in Parliament. If the Supreme Court suggests any amendments to the Bill, these have to be incorporated into the Bill before it is debated and passed.

What is a Joint Account?

Question: I am a Commerce Student. I have opened a joint account with my father. Please let me know the liability of each of the parties to the account.

G. Balasuriya, Battaramulla.

Answer: A joint account is an account where the customer is more than one person. The rights and duties of the banker and the customer are the same, whether an account is a joint account or an individual account.

Where an account is a joint account it is, however, necessary for the banker to know the position with regard to the mandate and the liability of each of the parties to the account.

The liability of each of the parties to the account -

(a) On the opening of a joint account, the banker should obtain a written mandate signed by all parties to the account. The mandate must state which and how many of the parties have authority to sign cheques or carry out any other transactions in connection with the account.

Without such a mandate the banker is not safe in paying a cheque unless the cheque has been signed by all the parties to the account. Where the banker holds any valuables or securities on behalf of the joint account holders, he should only release them to all the account holders together unless the mandate specifies otherwise.

(b) The mandate may be revoked at any time by any of the parties to the account. For example, one party to the account can stop a cheque drawn by another party to the account even though the cheque was drawn in accordance with the mandate.

The mandate is automatically revoked by the death, bankruptcy or mental incapacity of any of the parties, and the banker should therefore stop the account as soon as it has notice of any of these events.

(c) As soon as the banker learns of a bankruptcy petition against any of the parties, it should permit no further drawings from the account. Any cheque drawn by the party concerned presented to the Bank for payment while the account is stopped should be returned with the answer "Refer to drawer".

But a cheque drawn by any of the other parties must be returned with an answer calculated to cause little damage as possible to their credit and reputation.

(d) The position on mental incapacity of one of the parties is similar. The banker must refuse to allow withdrawals as soon as he learns of the mental incapacity of any party, and withdrawals can only be permitted on the joint instructions of the receiver (if and when one is appointed by the court of protection) and the remaining parties.

(e) When a joint account is stopped because of the death of one the parties, the balance in the account is transferred to the surviving parties.

The fact that the balance is transferred to the survivors does not mean that it belongs beneficially to them; this is a matter to be resolved between the survivors and the personal representatives of the deceased party, and will depend upon the terms on which the account was held as between the deceased and the surviving parties.

(f) The bank should not lend money to the parties of a joint account, either by means of an overdraft or in any other way, without obtaining from each of the parties on undertaking to be severally as well as jointly liable to repay the loan.

Professional negligence

Question: On the advice of my lawyer, I filed a case in the District Court. However, court dismissed this case with costs on a technical point 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 relief.

M. Gerard, Wattala

Answer: Regarding your question, 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.

What a pensioner should do before going abroad

Question: I am 68 years old and a Government Pensioner. My three children are living abroad. So I have decided to go abroad and live with one of them. Before my departure what should I do?

M. Farook, Dehiwela

Answer: First you have to decide whether you wish to get your pension in Sri Lanka or abroad. If you wish your pension to be remitted in your account while you are abroad, you have to inform the relevant Divisional Secretary and the Foreign Pension Division.

Then they will issue you with Pension I form (Life Certificate). You have to take sufficient photocopies of the said Form and take them with you when you are going abroad. You have to fill this form and get it attested by an authorized person mentioned in the form and send it to the Bank before the date of your pension in Sri Lanka.

Then on the instructions of the Pension Department, the Bank with remit your pension in your account and any day you come to Sri Lanka, you can withdraw your pension from the Bank.

If you wish to get your pension abroad, you have to fulfil the following requirements:-

(a) you should have permanent residency/citizenship

(b) approval of the High Commissioner

(c) approval from the Pension Department in Sri Lanka.

If you need further information in this regard, you can contact the Accounts Section, Foreign Division, Pensions Department, Maligawatte, Colombo 10. Tel. No. 2320439

Pension gratuity

Question: I am a teacher and due to retire before the end of this year. My date of retirement is 06th December 2007.

Please let me know whether there is any possibility of getting a pension gratuity on the date of pension?

Indrani, Naththandiya

Answer: Yes. The Pension Department has introduced a system where you can get your pension gratuity on the date of pension. But you have to follow the procedure given below:-

You have to inform the Pensions Department your date of pension through the Head of your Department with a duly filled application attaching the relevant documents.

The said documents should be submitted to the Department before the expiry of three months. Thereafter, the Pension Department will process your pension gratuity on the date of your pension.

Stoppage of salary without any notice

Question: I am employed in a foreign funded project in Galle. As at present I am on my maternity leave. My employer has suddenly stopped my salary without any notice.

I have not been given any show cause letter or suspended from my employment. Please advise me as to what step I should take to see that my salary is paid without delay. M. Radhika, Galle

Answer: Your Employer has no right to stop your salary while you are on your maternity leave. You should lodge a complaint with the Assistant Commissioner of Labour, Galle without delay.

The Assistant Commissioner of Labour, Galle will summon your Employer and after inquiry direct that your salary be paid immediately.

How to get pension abroad

Question: I am leaving abroad in the near future. What steps should I take before I leave the country in order to get my pension abroad.

J. Miranda, Negombo

Answer: If you are a pensioner who intends going aborad you have to inform the Divisional Secretary where you draw your pension and also the Pension Department of your decision to go abroad.

You can get your pension abroad or you can have your pension deposited in your account in Sri Lanka.

However, you have to meet the Coordinator of the Foreign Pension Division of the Pensions Department, Maligawatte, Colombo 10. Tel. No. 2431647.