Legal Aid Commission

Compiled by Kalani A. Medagoda A.A.L.

Introduction - Restoring Women Migrant Workers' (WMW) dignity

The Presidential directive to institutions and senior officials promoting employment of domestic workers in foreign countries to terminate sending migrant workers as domestic labourers by the beginning of 2009 should be considered a historical decision to safeguard the human rights based, dignity of women of Sri Lanka.

The Presidential directive given on the occasion of the celebration of International Women's Day is doubly significant at a time when Sri Lanka is threatened from many quarters of the world with economic strangling.

Rs. 300 billion annual remittances by foreign migrant workers was the biggest foreign exchange buffer of the country. The State has considered the human rights and female dignity of the Sri Lankan female more valuable than the dollars remitted to the country by doing manual work under conditions of slavery.

Many research reports indicated that most women domestic workers were victims of trafficking, working sometime without even basic human freedoms. Hundreds of stranded domestic workers have been recovered and brought to their villages at Government expense.

On many occasions unexplained deaths even with missing organ parts have been reported without any credible medical inquiries. To compound matters, some workers have been sent to death sentences without fair trial because many of the receiving countries due to their petro-arrogance and religious inflexibility do not accept international norms of justice and due process.

Among the countries that were sending migrant female domestic workers without any legally enforceable contractual rights, Sri Lanka stood at the bottom of the pit.

The tragic situation of women domestic workers from Sri Lanka in Saudi Arabia became a subject of a stinging report by the Human Rights Watch few months ago and the internationally award winning documentary "Maid in Lebanon" depicted the fate of Sri Lankan maids in Lebanon.

These reports are public documents but the harrowing stories compiled by migrant workers desk over past few years contain even worse tragic details which are unpublishable.

The LAC always advocated that individual right for women to work here or abroad should not be curbed as it is a fundamental human right.

But preventing trafficking and exploitation of citizens is a duty of the state and upholding standards of basic human rights is the responsibility of the individual countries and the international human rights watch dogs, in International Human Rights instruments like Universal Declaration of Human Rights 1948 or International Covenant on Civil and Political Rights (ICCPR 1966), International Covenant on Economic, Social and Cultural Rights 1966 and the 1977 Convention on the Elimination of all Forms of Discrimination against Women should be practised and not limited to Conventions, Conference papers and double standards.

A duplicity of the international human rights community becomes evident when one examines the application of the International Convention on the Protection of the Rights of All Migrant workers and members of their families (ICPRMW) 1990 which became effective only in 2003.

These Conventions developed mostly based on the ILO Convention took 12 years from 1990 to obtain the minimum number of ratifications and even up to date only 25 countries have signed the Convention. Ratifications have come from poor countries producing migrant workers and not a single doyen of human rights in the developed world have signed the Convention thus illustrating that in practice, the Human Rights standards are applicable to poor countries and not to the rich and the powerful countries.

In the face of duplicity, double standards of the rich and the powerful, it is extremely courageous of the Sri Lankan President to have taken this decision to protect the dignity of our hapless migrant domestic workers.

S.S. Wijeratne

Questions and Answers

How to claim EPF dues from Central Bank of Sri Lanka

Question - I was employed in a Company for a period of three years as a Secretary during which I have contributed 8% of my salary as EPF and the Company 12%. But after I resigned and requested for my 'B' Card, I understood from the Company that the EPF contribution of the employees had not been remitted to the Central Bank as they did not have funds.

However, on reaching the age of 55 years, I wanted to apply for refund of my EPF dues, and inquired from the Company who told me the Department of Labour had filed a court case and all EPF dues were deposited in courts, and I could apply for a refund from Central Bank. Therefore, I applied to the Dept. of Labour, EPF Unit with all relevant documents requesting to pay my dues.

As it is now over two years since I applied I made several visits to the Central Bank, EPF Department and inquired regarding my dues for which the reply was that the money had been deposited in a lump sum by the Company and they were unable to sort out and pay each employee.

Please obtain a reply from the Central Bank as to how I should approach them to obtain my EPF dues as I am desperately in need of money.

Thank you for you assistance.

Raju Perera, Dehiwela

Answer - With regard to your matter, we interviewed the Commissioner of Labour, EPF. He indicated that if you can meet him with the number of the case before the Magistrate's Court where your Employer was prosecuted, he will be able to help you to withdraw the amount lying to your credit in the EPF with the Central Bank.

Please therefore meet the Commissioner of Labour, EPF with the number of the case where the Company was prosecuted and the Company has thereafter deposited the money.

Your long drawn out matter could be sorted out. His office is in the 8th Floor of the Labour Secretariat, Narahenpita.

How to find employment

Question - I wish to seek employment abroad. How could I secure employment and what are the precautions that I should take?

M. Mohamed, Gampola

Answer - You could secure an employment through:

* A registered agent or

* A friend or relative living abroad If you have found employment through a friend local, you should see whether-

* Your agent is licensed under the Sri Lanka Bureau of Foreign Employment.

* The license is valid till the time of recruitment.

* The agent has obtained the necessary approvals from the Sri Lanka Bureau of Foreign Employment.

* The first approval valid till the time of recruitment.

* If the above conditions are fulfilled, you can handover the passport and necessary documents as specified by the agent (Specific Period of time)

* The passport should be valid for a period at least two years from the intended date of registration. You must pay the registration fee as specified by the Sri Lanka Bureau of Foreign Employment.

* You must remember that if you are migrating to a Middle Eastern country you must pay only the registration fee specified by the Sri Lanka Bureau of Foreign Employment.

* You may be required to obtain training if necessary.

* You must complete and possess a copy of the job agreement.

* You must under go a medical examination and obtain necessary medical clearance.

* Your agent must obtain the necessary approvals from the Sri Lanka Bureau of Foreign Employment and handover the following documents to you:

(a) The passport endorsed with Sri Lanka Bureau of Foreign Employment registration stamp.

(b) Valid visa.

(c) Air ticket.

(d) Job Agreement.

(e) Customer copy of bank slip

(f) Insurance Certificate

Non payment of salary - Can I go before Labour Dept?

Question - I am a 55 year old, working presently in a small private Company for the last six years as a Senior Manager, My problem concerns my salary. I have not been paid since August 2007 - i.e. 6 months.

The total sum owed me is approximately Rs. 350,000. The owner, who is also the Managing Director of the Company, maintains he has no money, while enjoying a luxury life with his family. He even threatens me saying that if I go to the Police or to courts he has the "contacts" and he could merely agree to pay me what he can afford - say Rs. 1,000 per month.

I have been asking this money even in reasonable instalments, as I want to leave this employment. But I know if I leave without collecting the money, he will never make this available to me.

- Can I go to the Labour Department?

- If so, which Section/Division must I visit?

- Can the Labour Department compel him (Owner) to make payment?

- I know he will claim "no money" - then what happens?

I am even prepared to accept the money in three instalments. Will this be a disadvantage as would the owner go back on the commitment after paying 1 instalment? Please give me an early reply as I need to act fast to get my dues.

W. G. Ubeyasiri, Dehiwela

Answer - Yes you can lodge your complaint with the Commissioner of Labour. Your employer is required to pay your earned wages.

Lodge your complaint with the Commissioner of Labour at the Labour Secretariat at Narahenpita.

The relevant Labour Officer who will inquire into the complaint will summon your Employer and hold an inquiry with regard to your complaint.

The Commissioner of Labour will thereafter make an order directing the Employer to pay you the unpaid wages. If he fails to do so, the Commissioner of Labour will prosecute the Employer before the Magistrate's Court for non-payment of earned wages.

How can parties resolve a dispute by Arbitration?

Question - How can parties resolve a dispute by Arbitration? Please let me know answer through your valuable Daily News Legal Aid Page.

Joe Ferdinands, Boralesgamuwa

Answer - The Law of Arbitration in Sri Lanka is governed by the Arbitration Act No. 11 of 1995. The primary requirement for arbitration is the provision of an arbitration clause in the contract or a submission clause after the dispute arises.

The arbitration clause will stipulate in the event of any dispute relating to the agreement, it will be referred to arbitration. Existence of an arbitration clause may oust the jurisdictions of the courts.

Re: W & P matter

Question - My husband and I are retired teachers. We migrated to the UK in June 2005. The pension was paid to us by the Divisional Secretariat, Thimbirigasyaya when we were residing in Narahenpita. I am receiving my pension regularly.

My husband died on August 10, 2007 in the UK. We have four children who are over 30 years of age and they are married. I have sent a registered letter with the Death Certificate of my husband to the Divisional Secretary, Thimbirigasyaya on 15.08.2007. I am entitled to a Widows Pension.

Please advise me as to what I should do and to whom I should contact to get my Widows Pension and Orphans Pension together with the mailing address of the officer concerned.

M. Indrakumar, Colombo 8.

Answer - Your matter was referred by us to the Director, Pensions Department. We were informed by the Department that the details furnished by you are not sufficient (such as, particulars of your husband, Pension Number and the W & OP Number). However, we advise you to write to the following address:

K. A. Tillekeratne, Director of Pensions, Pensions department, Maligawatte, Colombo 10. Tel. No. 2431647, Email - [email protected]

Clarifications regarding termination of employment

Question - I have been employed in a managerial capacity, in a private sector establishment, from 01st December 2003. The Company has about 100 employees and we are governed by the Shop & Office Employees Act. My appointment letter states that termination of employment on either side will be three months, or salary in lieu. Please clarify my rights and obligations under the Shop & Office Act, under the following circumstances:

* I submit my letter of resignation on 25th of September 2008, giving three months notice. Therefore, my effective date of resignation is 25th December 2008. However, I decide to utilise my remaining annual and casual leave, so that my last working day at office would be 25th November 2008.

In this instance, am I not entitled to my full salary and other perks upto 25th December 2008? I am also entitled to a company maintained car, petrol and maintenance. (The car is owned by the Company). Am I not entitled to these perks as well upto 25th December 2008, despite my last working day being, 25th November 2008? Can my employer, make any salary deductions, based on the clause in the appointment letter, regarding 3 months notice?

* In the same scenario as above, I complete 5 years of service, on 01st December 2008. Am I not entitled to gratuity, although I shall be physically present in office only to 25th November 2008?

Please be kind enough to enlighten me on these issues in the Daily News Legal Aid page.

R. Gunwardena, Colombo 7.

Answer - * If you have given three months notice of resignation, you are entitled to utilise your unavailed of annual leave for the 2007 and the earned leave for the year of termination (that is from 1st January 2008 to September 2008) - one day for each month during the period of notice. You cannot set off the casual leave during the period of notice.

* You will be entitled for your salary upto 25th December 2008 provided, you are only for the unavailed of annual leave.

* You will be entitled to use your Company maintained vehicle upto December 25, 2008.

* If you have completed five years of service on December 1, 2008 without a break in service, you qualify for your gratuity under the Payment of Gratuity Act No. 12 of 1983.

****

Non execution of Magistrate Court Order

Question - 1. This is a kind request to publish in the Legal Aid page, an instance of open defiance willful neglect to carry out the Honourable Magistrate's Orders to demolish the unauthorised section of certain premises in Colombo, lying on the Northern boundary of another premises, situated within the local limits of the Colombo Municipality.

2. The Colombo Municipality came to file the above case after inquiring into the complaint made about the said unauthorised section.

3. After inquiring into the matter the Learned Magistrate made the above order.

3.1 The Colombo Municipality did not carry out this Order.

3.2 The Magistrate made a further order on 11/05/2007 to comply with order of 2006/09/2006 without delay.

3.3 The CMC has upto now has not carried out this Order.

4. I would therefore kindly request your advise and/or intervention to expedite this matter.

Mrs. S.E.M.S. Fernando, Colombo

Answer - According to your facts, it has been mentioned that the Magistrate's Court has made an Order to demolish certain unauthorised constructions by its Order dated 11/05/2007.

If the CMC has not acted so far with regard to the said Order of the Magistrate's Court, by way of motion you can call this case in open courts and you can inform this situation to courts.

Further, if the CMC is not complying with the said Order to execute the said demolition, you can file contempt of court against the CMC since you are the aggrieved party in that case.

Human Rights protection through easy access to justice - LAC Chairman

The human rights protection and promotion programme in Sri Lanka has become a main responsibility of the rights based Legal Aid Commission activities. The Commission despite extreme financial constraints has established multi-purpose legal aid centres in 45 court complexes.

The LAC proceeded to open the 45th in the Magistrate's Court at Kantalai, an area, which hosts a multi racial, Sinhala, Tamil and Muslim communities. Kantalai has also experienced the repercussions of the conflict and the human rights based development programme.

The LAC Centre will not be confined only to providing the traditional legal advice to the public, legal representation to the indigent litigants and conduct legal awareness programmes in the surrounding villages but assist in providing legal documentation, such as ID cards, Birth and Death Certificates and help in completing agricultural credit applications.

The LAC Centre would be a focal point in receiving complaints about human rights violations and would liaise with the Human Rights Bureau of the LAC in Colombo to take grievances before the Supreme Court. Mere talking about human rights is insufficient unless an effective remedy is made available to victims of human rights in Sri Lanka.

Many official organizations dealing with victims of HR Violations, such as the Supreme Court, the HRC and the Ombudsman but the poor has neither the knowledge nor the resources to seek justice from this fora. The LAC despite resources constraints will try to fill this gap with the help of the BASL.

It is in this context that investment in the legal aid programmes both by the State and donor countries will result in more effective rights protection and promotion than mere criticism of the inadequacies of Sri Lanka's Human Rights.

Quotes from Judges

Judicial Delay:

Shaman, Lubet and Alfini said:

"When a judge delays rendering judgement in a case or cases, the negative consequences on the administration of justice are more apparent and direct than they are in the usual neglect scenario.

In addition to depriving quick and certain justice to the litigants in those cases, a judge reinforces the negative images of the judicial system reflected in such aphorisms as 'justice delayed is justice denied'... Failure of a judge to dispose promptly of the business of the court when there is no justifiable reason for delay reflects adversely on the entire system."

Quoted by A. R. B. Amerasinghe in "Judicial Conduct Ethics and Responsibilities" - Page 892

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

LAC centres and Telephone numbers

01. Head Office 2433618, 5335281
02. Tsunami Regional Center 060-2137153
03. Welikada Prison 5335329
04. Bandarawela 057-2224733
05. Matale 060-2664588/071-4447151
06. Avissawella 060-2362219
07. Ratnapura 045-2226899
08. Negombo 031-5677111
09. Kalutara 034-5628860
10. Gampaha 033-5677998
11. Polonnaruwa 027-2222293
12. Anuradhapura 025-2224465
13. Kandy 081-2388978
14. Kurunegala 037-2229641
15. Galle 091-2226124
16. Hambantota 047-2221092
17. Nuwara Eliya 052-2235260
18. Moneragala 055-2276891
19. Ampara 063-2223496
20. Kegalle 035-2231790
21. Chilaw 032-5672457
22. Akkaraipattu 067-5675333
23. Balapitiya 091-2255753
24. Matara 041-2233815
25. Vavuniya 024-2221899
26. Trincomalee 026-5676023
026-2222293
27. Kalmunai 067-2223710
28. Jaffna 021-2224444
077-735910
29. Batticaloa 065-2226359
30. Panadura 038-5677100
31. Kuliyapitiya 037-2284611
32. Mahiyangana 055-2258332
33. Mahawa 037-2275075
34. Horana 034-2265244
35. Matugama 060-2444262
36. Attanagalla 033-2297020
37. Dambulla 060-2682238
38. Deniyaya 060-2428006
39. Mawanella 035-2247272
40. Marawila 032-2254443
41. Warakapola 037-2277075
42. Juvenile Court, Bambalapitiya 2507687
43. Nugegoda 077-6975414
44. Welimada 060-2577017
45. Kantalai 077-4444260