Legal Aid Commission

Introduction:

Elders societies

When the Protection of Rights of Elders Law No. 9 of 2000 was adopted, all the political parties without division supported the Law. The non-partisan Parliamentary debate was the beginning of a consensual discussion to develop a constitutional solution to the national conflict.

The normally divisive Parliamentarians considered the increasingly elders challenge as a national issue which should be placed in the national agenda above the partisan politics of this country.

The child protection issues are increasingly treated as non political issues: The demographic challenges posed by the rapidly increasing elders cohort in our society was taken out partisan politics by Law No. 9 of 2000.

Unlike the dwindling cohort of children the elders have the right to vote which they are free to exercise to the candidates they prefer at elections. This fundamental power has tempted some of the political parties to infiltrate the 9000 village based elders societies formed since 2002 under the Director of National Council of Elders.

Freedom of expression and association is guaranteed as fundamental rights in our constitution. Hence, elders have the right to join and be involved in divisive political parties.

But the National Elders Council sponsored the 9000 village based Elders Societies primarily for the welfare of elders according to National and United Nations Madrid Principles.

The primary objective of the Elder’s Society was apolitical advancement of elders’ rights and their protection.

In Sri Lanka, for example the co-operative movement pioneered by leaders like Ghandhi of Sandalankawa Vincent Subasinghe for the development of the under privileged has now become the battle ground of political parties.

The co-operative movement which was a Fabian Socialist conception has lost its credibility as a non-partisan poverty alleviation programme. Please let this not happen to Elders Societies which were formed with a singular objective of meeting the challenges of aging.

Sri Lanka like many other developed countries is confronted with a fast rate of aging. More people crossed the age of sixty every day than the new babies born. We are well on the path to establish the first Gerontocracy in Asia.

An estimated 2.5 million elders in a 20 million population calls for innovative programmes to harness the elders power in development activities. Healthy aging is a fact in this country and as many demography projections show, Sri Lanka will have a dominant grey population in the new population.

The other day I attended the annual re-union of the Jayathilake Hall and was amazed at the mental agility of seniors who studied well before us at Peradeniya who still contribute to make our island of birth a happy place to live irrespective of gender, race, religion or langauge differences.

Let the bi-partisan spirit with which Elders Law No. 9 of 2000 was enacted remain the Guiding Principle for Elders Societies in the golden period of our lives.

S.S. Wijeratne,

Email:[email protected]

Legal Aid to poor essential for equal administration of justice - Nugegoda District Judge

The Legal Aid Commission’s 43rd Legal Aid Centre was inaugurated on January 28 at the Nugegoda New Courts Complex.

Following the opening ceremony, Nugegoda District Judge Bandula Karunaratne addressing a representative gathering of Attorneys-at-Law, police and court officials said he had spent four years in Zambia as an expert to strengthen the Zambian Legal Aid Programme and his experience is that legal aid to the poor is a necessity for equitable dispensation of justice.

The District Judge further said that he and Nugegoda Magistrate U.G.W.K.W. Jinadasa would give all the assistance required to make the work of the Legal Aid Centre at Nugegoda a success.

LAC Chairman S.S. Wijeratne, Director-General Justice Hector S. Yapa, President of the Nugegoda Bar Association Keerthi Udawatte, AAL and Senior Attorney-at-Law, K.A. Karunaratne also addressed the gathering.

Quotes from Judges

Judicial Remoteness

“The finding of facts, or the giving of directions to a jury with respect to facts, calls for great experience of the human condition.

The notion that judges are immured in an ivory tower, shut off from the activities, emotions, virtue and vice of ordinary life is sheer nonsense, as any observer of the sittings of a trial court would testify.

Moreover, judges, most of whom have been successful advocates in litigation practices, have gained an unrivalled capacity to appreciate the facts and nuances of those situations that arise in litigation in their chosen field”.

Sir Gerard Brennan, Chief Justice of Australia

“Why be a Judge?, New Zealand High Court and Court of Appeal Judges’ Conference,

Dunedin, 12-13 April 1996.

Quoted by A.R.B. Amerasinghe in “Judicial Conduct, Ethics and Responsibilities - page 74.

[Questions and Answers]

‘Swarnabhoomi’ and ‘Jayabhoomi’ deeds

Question: We are interested in purchasing a house and property in the up-country.

‘Owners’ of many properties (which are for sale and which we have inspected) have informed us that they ‘Swarnabhoomi’ or ‘Jayabhoomi’ deeds in respect of their properties. Our friends advise us that it is very risky to purchase such properties and that we may not be able to have a legally secure deed of ownership of such a property.

Can you please advise us whether it is legally possible to purchase a house and property from an ‘owner’ who has a ‘Swarnabhoomi’ or ‘Jayabhoomi’ deed in respect of the said property and whether such a deed of transfer/ownership can be registered at the Land Registry?

- N. L. Ranasinghe, Kandy.

Answer: ‘Swarnabhoomi’ and ‘Jayabhoomi’ deeds are given under the provisions of State Land Development Ordinance.

Under this Ordinance, the Licencee has given to a person to develop the state land. Under the provisions of this Act, the Licencee cannot sell or mortgage or dispose this property to any other person. However, by consent of the Licence Holder and the approval of the Divisional Secretary it can be transferred to another party to develop the said land.

In view of the said Ordinance it is not possible to purchase a property which belongs to ‘Swarnabhoomi’ and ‘Jayabhoomi’.

Appeal regarding land case

Question: This is a land case which was settled in my favour and the appeal was made by the defendant. Please note that the Judgment was given in 1999.03.09 and the appeal was made on 1999.03.11. Case Number was 17669/L. Eight years have passed.

I wish to known:

1. When will this case be heard?

2. Will I be informed or the lawyer who appeared for me or both.

3. If the lawyer who appeared for me is not in a position to appear this time what should I do?

If possible, please advice me.

- Mrs. Silva, Etul Kotte.

Answer: The answers to your questions are given below:

1. Kindly check from the Registrar, Court of Appeal regarding the 1999 final appeals.

2. Your Registered Attorney and yourself will be informed regarding the hearing of the final appeal application.

3. If your lawyer is not in a position to appear on your behalf, you can retain any other suitable lawyer as you wish.

For your information, we wish to inform you that at present the appeals filed in 1996 are being listed for hearing only now.

Elders’ rights

Question: Who are considered as elders under the Sri Lankan Law? Are there any special benefits receivable by elders?

- Joseph Ferdinands, Moratuwa.

Answer: Protection of Rights of Elders Law No. 9 of 2000 stipulates those persons who are over 60 years are considered elders. However, in many other countries the age of becoming elders is considered as 65.

Under the Elders Law, elders cannot be discriminated on the basis of aging and if they are very poor, they are entitled to be maintained by their children. There is a separate Elders Claims Board established under the Elders Law. Additionally, elders can receive separate Elders Identity Card which will enable them to get discounts on medicine and higher interest rates from some banks.

What are the payments taken as total earnings which attracts EPF?

Question: Please advice me the payments that are taken as total earnings of an employee which attracts EPF?

- Ms. S. Yamuna, Bambalapitiya.

Answer: ‘Total earnings’ have been defined in the EPF and in the regulation as -

(a) Basic wage or salary.

(b) Cost of living allowance, special living allowance and similar allowances.

(c) Payment in respect of holidays this includes payment made in respect of weekly, public and annual holidays.

(d) The cash value of any cooked or uncooked food provided by the Employer to employee.

(e) Remuneration paid by way of commission.

(f) Incentive payment.

The following payments however do not come under the definition of total earnings and do not attract Provident Fund:-

(1) Bonus payments.

(2) Rent allowance.

(3) Children’s allowance.

(4) Overtime payments.

Payments made for working on public or weekly holidays is considered as enhance wages for that day and not overtime payment.

(5) Travelling reimbursement.

(6) Service charge paid to employees in hotels.

RE: surcharge on EPF

Question: I read in your last week’s Daily News Legal Aid Page that if the Employer defaults in the payment of gratuity to an employee for over one year, the Employer will have to pay the employee in addition to the gratuity a surcharge of 30% of the gratuity payable and the employee is entitled to get the full amount paid as surcharge along with the gratuity.

Please advise me whether the same principle applies in the case of Employees’ Provident Fund?

- M. Samsudeen, Malabe.

Answer: In the case of EPF, if the Employer fails to contribute towards the EPF exceeding one year, the Employer will be directed to pay 50% as surcharge and not 30%. Unlike in the case of gratuity, the employee will not entitled to the full surcharge of 50%. The employee will be entitled to a percentage of the surcharge determined by the Monetary Board of the Central Bank.

Re: Right of way to a road

Question: First of all I take this opportunity to thank you for the invaluable services rendering through the Daily News.

The assessment number of my house is 5/3A. A 12.5 ft private road leads to my and others houses from the public road.

But for a considerable period of time they have been using our road and also theirs for access. Four funerals were taken for burial from this house along our road. About two years back they have obtained electricity and water connection via our road. No residents in our road raised any objections to this.

In the above circumstances, I shall be much obliged if you would kindly advise me whether they have any right of way to our road.

If not are there any possibilities of preventing them from using our road anymore.

I am prepared to pay a nominal amount as fees to obtain the best legal opinion on this matter. Your valuable advice is sought regarding this.

Thanking you in advance for any response. I wish you wholeheartedly best luck to continue the good work.

- A. M. Maharoof, Dehiwela.

Answer: You have not disclosed the fact whether you have the soil right over the said 12.5 ft private road. You have also mentioned that the other party has a separate 12.5 private roadway from the public road.

In these circumstances, if you have the soil right over the said private road, you can prevent the other party from using the said road by instituting an action.

If you need further clarification, you may please call over at our Legal Aid Commission situated at No. 129, Hulftsdorp Street, High Court Complex, Colombo 12. We have 43 Legal Aid Centres islandwide and you can visit any of our Legal Aid Centres closer to your place of residence.

How to obtain cost of litigation?

Question: I was a plaintiff in a civil action in the District Court and the judgment entered in my favour. The Defendant appealed against the said order and after hearing of the appeal, the appeal was dismissed with cost. The Defendant has not appealed against that order in the Supreme Court.

In the District Court case and Court of Appeal case I was entitled to the cost of litigation. How can I obtain the cost of litigation from the other party? Please let me know the correct procedure.

- M. Mahendran, Mattakkuliya.

Answer: You have to make a bill of cost under the provisions of the Civil Procedure Code to obtain cost from the other party. Thereafter, you have to file the same in court and by order of the court you can get the cost of litigation.

Re: Land matter

Question: My father has gifted a property to my sister and she is mentally handicapped and of unsound mind. We have no place to stay and we want to build a house in my sister’s land.

Kindly let me know the legal procedure to do this.

- Joseph Fernando, Avissawella.

Answer: Regarding your matter, you will have to make an application under Section 493 of the Civil Procedure Code to appoint a suitable person as a guardian for your sister. The said application must be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in question in the action adverse to that of the minor, and that he is a fit person to be so appointed. After obtaining leave from the court you can build a house in your sister’s land.

What is ‘Nolle Prosequi’

Question: I am a keen reader of your valuable Daily News Legal Aid Page. I find this page very useful to the general public as it answers a lot of questions on land, labour, pension and EPF/ETF matters.

However, I would like to know whether you could help me to know the meaning of the word ‘Nolle Prosequi’.

- D. Jansz, Negombo.

Answer: Thank you very much for reading our page. we have received a lot of appreciation from the general public.

‘Nolle Prosequi’ is a formal entry on the record by the Prosecuting Officer by which he declares that he will not prosecute the case further. Commonly called ‘nol pros’.

Disclaimer

The answers to questions are the legal views of individual lawyers and the Legal Aid Commission only complies 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. E-mail: [email protected]

website: www.lawaid.org