Introduction - Human Rights Day

Every year, on December 10, the most civilised countries including Sri Lanka following a UN Resolution organise several functions to renew their pledges to protect and foster human rights in their countries.

Many countries have Bills of rights incorporated in their Constitution on the urging of the powerful countries in the United Nations and its agencies, or Bretton Wood Institutions like the World Bank which decide when to lend money to the poor countries.

Human Rights mostly Civil and Political Rights of the citizens (not economic and social rights) should be legally protected for aid.

If a sovereign state fails with this harsh stipulations credit rating of the country will collapse and her poor people would become even poorer, attracting the wrath the Guardian Gods who might try to civilize the arrogant countries by surreptitiously executing the ultimate punishment.

During the past few months some champions who master-minded the regime changers of East Timor Eritria several states in former Yugoslavia, Iraq and Afghanistan have written articles propagating regime changes in the name of Human Rights in small nations.

Regime Changers’ could be done by electors but are neo-cons who have their fellow travellers holding seminars condemning every thing that a Local Government have put on the list of countries whose regime has been identified for change.

The local collaborators will furnish the necessary internal support and undermine the efforts if the state, Religion and Community based Institutions which make Human Rights meaningful to the poor people of the country.

Highly publicised human rights preaching has little meaning to the poor who find it difficult to eek out an existence. The moguls of Human Rights discourse has always advocated, the civil and political rights tracing their origins to the French Revolution.

They either have never studied history of religion or chose to ignore the influence of religions shaping Human Values which is the mother of both human rights and duties.

I did not read any report where mention was made about the importance of Article 16 of the UDHR or Article 23 of the ICCPR where even the original drafter of the guidelines for the protection of human society after the holocaust of the Second World War.

Many disagree with President George Bush’s philosophy of war but he stands above in the leadership of the World as one, who encourages the rights of the family.

Indeed the newly enacted ICCPR Act No. 56 of 2007 has ignored this important provision. The functions that were held last Monday to celebrate Sri Lanka’s commitment were not meant for the poor people in Sri Lanka who still cherish the concept of the family.

S.S. Wijeratne

Email:[email protected]

Migrant workers rights seminar in Avissawella

The Migrant Workers Unit of the Legal Aid Commission will be conducting a full day Workshop at the Jayabodhi Viharaya at Avissawella on December 16 from 9 a.m. focusing on prospective migrant workers about their rights.

The rights based on International Convention on the Rights of Migrant Workers and their families which have been ratified by the Sri Lankan Government and whose Executive Committee is presided by the Sri Lankan Ambassador at the UN would be explained to the prospective workers.

Prospective workers would be given pamphlets relating to the labour rights of the country to which they are planning to go for work.

Among the speakers would be LAC Chairman S.S. Wijeratne, Director-General Justice Hector S. Yapa, Ms. Lilanthi Kumari, AAL, Head of the Migrant Workers Unit and LAC Coordinator for Avissawella, Ms. Yasodha Vidyaratne, AAL.

Questions and Answers

Termination of service without holding proper inquiry

Question: I joined as a probationer in a company and after completing the six months period of time, I was confirmed as a Sales Representative. A few months later, I was compelled to work night shifts and out of the area which was contrary to my contract of service. Since I refused to comply with the said order, the company terminated my service without holding any proper inquiry.

Please advice me.

M. Gerard, Godagama.

Answer: According to our Labour Law, neither a probationer nor a permanent employee could not be terminated without reasonable cause. On the other hand an employee is not bonded to comply with any order which is not agreed by the parties at the time of recruitment. In any event, the employer has no right to terminate the employment without any justifiable reasons.

In your case, the employer has arbitrarily terminated your employment and therefore under provisions of the Industrial Disputes Act, you can seek relief (re-instatement or compensation) from the relevant Labour Tribunal or Termination Unit of the Labour Department.

Re: Payment of gratuity

Question: I thank you very much for answering my previous question on computation of gratuity through your valuable Daily News Legal Aid Page. Could you now please let me know the answers to the following questions in relation to payment of gratuity:

i. From what date the payment of Gratuity Act came into operation?

ii. What are the categories of employees who are not entitled to receive gratuity?

iii. Is an employee who receives pension entitled to gratuity?

M. Tissera, Godagama.

Answer:

i. Payment of Gratuity Act came into operation on 31.03.1983. Part I of the Act is operative with retrospective effect from 26.8.1972 in respect of employees of estates vested with the Land Reform Commission.

ii. The categories of employees who are not entitled to receive gratuity are as follows:

i. Employees of Cooperative Societies.

ii. Employees of Local Bodies.

iii. Domestic servants or personal chauffeurs.

iv. Employees who are entitled to pension under non-contributory pension scheme.

v. Employees who do not have five completed years of service.

vi. Employees in establishments which have less than (15) fifteen employees.

vii. Employees of Government Owned Business Undertakings.

viii. Employees of Crown - i.e. State employees.

ix. Employees who become entitled to a more attractive package in terms of a Collective Agreement.

What is stipulated time period for an appeal against final judgement in District Court?

Question: I have obtained a final judgement against me in a land action in the District Court and which was delivered on 25.11.2007.

What is the stipulated time period for an appeal against the said final judgement in the said land action?

Tissa de Silva, Dehiwela.

Answer: If you are not satisfied with the said final judgement you have a right to appeal against the said judgement.

Earlier, the Court of Appeal had exercised the said jurisdiction and now it has delegated to the Provincial High Courts by Provincial High Court (Special Provisions) (Amendment) Act No. 54 of 2006.

Under the said Act there are specially established Provincial High Courts functioning in respective provinces in the country to hear and determine the appeals in a speedy way and these High Courts are formerly known as ‘High Court of Court Appeals’.

If you prefer to appeal against the said final judgement delivered on 25.11.07, you must file Notice of Appeal in the District Court within 14 days (excluding public holidays and Sundays) of the said date.

Thereafter, you have to file Petition of Appeal in the High Court of Civil Appeals under the provisions of Section 755 (3) of the Civil Procedure Code within the 60 days. It should be noted that the computation of time period is very important in an appeal application.

The date of the judgement delivered in the District Court is excluded from the 60 days time period and when the 60th day falls into a Public Holiday, the Petition of Appeal should be filed on the very next court working day. Therefore, please try your level best to file your Petition of Appeal as early as possible.

Who can become a foster parent

Question: After the tsunami struck Sri Lanka in December 2004, there are thousands of children who have either lost both parents or one parent. I would like to know the general criteria to become a foster parent.

Please also let me know who cannot become a foster parent and how long is a Foster Care Order valid for? Your kind advice in this matter is solicited.

G. S. Fernando, Galle.

Answer: The general criteria to become a foster parent:

* Couples or a single person are eligible.

* Couples should be legally married for a minimum period of 3 years.

* A couple is preferable, however a single parent may be considered if it is in the interest of the child.

* There should be a 25 to 45 age different between the foster parent(s) and the child.

* The applicants’ family should be stable.

* The couple should demonstrate effective parenting, marital accord and an absence of domestic violence.

* A family where there has been a recent death of a child should not be considered unless placement in such a family would be in the best interest of the child.

Persons who cannot become a

foster parent are:

* Person with a history of alcoholism, drugs, physical, mental or emotional complications that would interfere with the proper upbringing of the child;

* Person with a history of maltreatment or who has been a recipient of child protection service during childhood;

* Person who was convicted of any offence or who has a police record; and/or

* Persons who has plans to proceed abroad for employment or other reason for a long period of time.

The Foster Care Order is valid for a period up to 1 year and can be renewed annually until the child turns 21 years old. However, there will be no need to renew the Order if the foster parent successfully applies to adopt the child or young person.

Procedure to donate body to Medical Faculty

Question: I kindly request you to advise me as to how I should donate my body in the event of my death, to the Medical Faculty for the benefit of the medical students.

I am 72 years old, married and have four gown up children, who are also married and settled down.

Please let me know the procedure in donating my body after death, in your esteemed paper Daily News under the caption of Legal Aid Questions and Answers appearing on Fridays.

Raja S., Moratuwa.

Answer: You can write a letter to the Medical Faculty, Head of the Anatomy Department giving your consent to donate your body to the said Department. Then they will issue the necessary instructions to you. Since you are residing in Moratuwa, you can donate your body to the Medical Faculty of Colombo.

If you are hospitalised, then you can write a letter with your signature giving your consent to donate your body to the Anatomy Department. This letter should be handed over to the Judicial Medical Officer of the relevant hospital and you have to inform your next of kin.

Immediately on your death, your next of kin should inform the relevant Anatomy Department mentioned in your letter within 24 hours.

If your next of kin wishes to take your body for a few hours, according to the instructions given by the Anatomy Department, you have to inform the funeral undertakers and they will undertake to do a light embalm. If your next of kin wishes to give away the body direct to the medical faculty, then there is no necessity to do an embalm.

Medical Faculty, Colombo., Tel. No. 2695300 - Ext. 119, 120, Medical Faculty, Ragama. Tel. No. 2956188

What is a codicil?

Question: What is a codicil? I would be grateful if you could kindly explain through your valuable Daily News Legal Aid Page.

S. Derrick, Boralesgamuwa.

Answer: Under Section 4 of the Prevention of Frauds Ordinance, “a will or a codicil shall be in writing and shall be signed at the foot of the will by the testator or by some other person in his presence and by his direction and such signature shall be made or acknowledged by the testator in the presence of a licenced Notary Public and two or more witnesses who shall be present at the same time and duly attest such execution or if no Notary is present then such signature shall be made or acknowledged by the testator in the presence of five or more witnesses present at the same time and such witnesses shall subscribe the will in the presence of the testator.”

A codicil is a document with which you can amend a will and the same procedure set out above has to be followed to make a codicil. The procedure to revoke a will is laid down in Section 6. Under Section 6, a will or a codicil can be revoked.

(1) By destroying it by the testator or by some person in his presence and by his discretion with the intention of revoking the same.

(2) By marriage of the testator.

(3) By making another will, testament or codicil.

(4) By some writing declaring an intention to revoke and executed in the manner of a will, testament or

(5) By burning, tearing or otherwise destroying the same by the testator by some person in his presence by his direction with the intention of revoking it.

Section 7, no obliteration, interlineations or other alteration made in any will, testament or codicil after execution thereof shall be valid or have any effect, which are not apparent, unless such alternation shall be executed in like manner, as required for the execution of the will, testament or codicil with such alternation as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or some other part of the will, testament or codicil, opposite or near to such alteration or at the foot or end of or opposite to a memorandum referring to such alteration and written at the end or some other part of the will, testament or codicil.

Can a Fundamental Rights case be filed in Supreme Court after one month?

Question: Can a Fundamental Rights case be filed in the Supreme Court of Sri Lanka after one month? Please advice me.

Justin Fernando, Moratuwa.

Answer: No. Article 17 read with Article 126 of the Constitution clearly states that the time limit is one month from the date of violation. Therefore, such an action cannot be sustained in the Supreme Court. However if one is prevented or incapacitated from invoking the fundamental rights jurisdiction - e.g. incarcerated or hospitalised, then one month will not begin to run until such is removed. Alternatively one can go to the Human Rights Commission (HRC) within three months from the date of such violation. If three months have lapsed, HRC will not entertain any complaints as per their new circular which stipulates the time limit as three months.

W&OP pension query

Question: I married a Government Servant who is entitled to a pension. He is due to go on pension next year. My husband was a married person before and I got married to him after his divorce. Is it essential to submit these details / Certificates in the application form called Widows and Orphans’ Pension Scheme.

Mrs. K. Perera, Battaramulla.

Answer: Yes, under the Pension Minutes and Circulars if you are applying to the Widows and Orphans Pension Scheme, you have to declare under Section 5 of the W&OP Fund Ordinance No. 24 of 1983.

(a) If the Officer is unmarried the word ‘Spinster’ should be entered in the relevant column in the said application. In the case of Hindu marriages the date of registration of marriage according to Hindu rites and custom, whichever is earlier, should be indicated with corresponding note. In the case of Kandyan marriages only duly registered marriages will be recognised.

(b) Delete inapplicable word in case of divorce the date on which the decree was made absolute should be entered and a certified copy of the decree of divorce should be attached.

(c) If the officer was previously married, full particulars of such marriages should also be stated.

(d) If the officer has children by previous marriages, full particulars of such children should be stated, the children by previous marriages being clearly indicated by notes made against their names. In the case of children born to the officer by the husband prior to the registration of his marriage a note to that effect should be made against the names of such children supported by their birth certificates. If any delay is anticipated in obtaining these birth certificates they may be forwarded later.

(e) Delete what is not applicable. In very exceptional cases (e.g. - where the birth has not been registered or registered but not traceable) an affidavit should be accepted.

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

List of developmental  Legal Aid desks in LAC

Chairman - S.S. Wijeratne

1. Anti-Corruption Desk - Ms. Uthpala Adhikari, AAL

2. Apprentice Training Program & Bench and Bar Desk -

Ms. Damayanthi Dissanayake, AAL

3. Child Rights’ Desk - Ms. Mahesha de Silva, AAL

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

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

6. Elders’ Rights Desk - Ms. Harshani Balaharuwa, AAL

7. Human Rights Bureau - Mr. Nuwan Peiris, AAL

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

9. 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 - Mr. Reginold Kumarasiri

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

14. Labour and Environment Protection Desk - Mr. Dulan Weerawardena

Holiday Notice

All the Legal Aid Commission Centres islandwide would be

closed from December 21 to December 31, 2007.

In case of emergency the Chairman could be reached on 011 2502370