Introduction

Aging productively

The entry of Republican Party candidate, 72 year old John McCain in the US Presidential race has sparked a healthy debate on aging. Unlike in Sri Lanka, the USA does not have a rigid law on aging or retirement. In any event no age limit has been stipulated for politicians to retire.

In the USA, even the Judges of the Supreme Court have no legal stipulation for retirement technically. They can hold their office until death.

However, many US Supreme Court Judges voluntarily retire when they are feeble in mind and body with declining ability to perform the onerous task of judging at the apex level. In Sri Lanka, under the Constitution, Supreme Court Judges automatically retire at 65. But many retired Judges work in to their 80’s mostly in Arbitration.

Arguments are raised in the USA whether at 72; a person could be an effective President of the only remaining super power in the world. The opinion is divided on the issue. Those who are on the side of effective aging cite the example of late President Ronald Reagan who won his first Presidential election just prior to his 70th birthday and was re-elected at 74 years of age. Will John McCain, if elected would be the oldest elected Executive President of the world? Answer is ‘No’. A Sri Lankan had already become the oldest elected Executive President in the world.

Sri Lanka’s First President, late J.R. Jayewardene was elected in the 1977 election as the Prime Minister at the age of 71 years and constitutionally converted himself to be the Executive President in 1978. His real election to the post of Executive President was held in 1982 when he was 76 years of age. Other than ailing monarchs and dictators no human being had been elected as an Executive President at the age of 76 by the people of a country.

These examples were cited to support the premise that agile and flexible minds age differently. Sri Lankan Protection of the Rights of the Elders Act No. 9 of 2000 fixed the age of 60 as the age qualifying to be an elder. This was strictly for legal purposes where rights and duties would devolve on elders on the basis of the cut off age. Despite the retirement age of 60 many Government Ministers accommodate consultants well into their sixties. Given Sri Lanka’s demographic profile, utilising elders in the developmental process is a salutary trend.

Aging leads to decline in mind and body that cannot be stopped. However, the latest break through in geriatric research has disclosed with proper mental exercise healthy aging can be prolonged. In 2007, Harvard University research scientists demonstrated that by constant brain exercise or thinking memory retrieval of 75 year old could be developed to equate those of young adults. The brain operates like chicken wings “use it or lose it”. It is the duty of the National Council of Elders to educate our two million elders to engage in regular mental exercises to remain productive for longer periods of time.

- S.S. Wijeratne

Kamalasabayson Scholarship in Arbitration 2008-2009

Applications are invited from professionals for the Kamalasabeysan Schoalrship in Diploma in Commercial Arbitration conducted by the Institute of Commercial Law and Practice. The diploma course woudl commence in October 2008 and continue till April 2009 on Saturday at the ICLP Arbitration Centre.

Schoalrship awardees would be sleected by a panel consisting of Deshamanya C. P. de Silva, J. S. Mather, Nalin Abeysekera, PC, Justice Hector S. Yapa, Walter Laduwahetty and Secretary-General of ICLP, S. S. Wijeratne.

Applications for the scholarship with a full CV should be addressed to:-

The Chief Executive Officer, ICLP Arbitration Centre, 61, Carmel Road, Colombo 3, Tel. 2346163, Fax. 2346164, Email: [email protected]

The closing date for receipt of applications would be September 30, 2008.

LAC establishes Industrial Relations Desk (IRD)

The number of workers seeking legal assistnace in their cases before the Labour Tribunals, Industiral Courts and before the Labour Departmenal inquiries has increased durin the past few months. The nubmer of legal consultations relating to employer/employee disputes, non-payment of EPF/ETF and discriminatory treatments have since increased.

In view of the increased industrial disputes, the LAC has set up an Industrial Relations Desk under Labour Law expert, Uma Wijesinghe, AAL with supporting staff.

The IRD can be contacted at the Legal Aid Commission Head Office at No. 129, Hulftsdorp Street, High Court Complex, Colombo 12.

Tel. No. 2433618 - Extn. 808

Email: [email protected]

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.

Yours 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

Questions and Answers

Re: Pension matter

Question: I am a holding a pensionable post in the Government Sector. I also contribute to the Widows’ and Orphans’ Pension Scheme. Please let me know the following:-

(a) What are the documents required to apply for the Widows and Orphans’Pension.

(b) Who is eligible to obtain the Widows’ and Orphans’ Pension.

(c) How can they obtain the W&OP.

Your answers to the above questions would be greatly appreciated.

M. Joseph, Meegoda

Answer:

(a) The following documents are required to apply for the Widows’ and Orphans’ Pension Scheme:-

- Original Birth Certificate

- Original Birth Certificate of wife, if married

- Original Birth Certificate of children and

- Original Marriage Certificate

Officer appointed with a pensionable post have to fill form General 86 and should be sent to Secretary and Accountant Widows’ and Orphans’ Pensions Scheme Section, Department of Pensions, Maligawatte, Colombo-10.

(b) Widow of pensioner/officer, unemployed unmarried female children who are less than 26 years, unemployed male children who are less than 26 years.

(c) Request should be made to relevant Divisional Secretary with original death certificate of pensioner and Widows and Orphans’ Pensions number after the death of pensioner.

Re:Partition Action

Question: The interlocutory decree has been entered in a Partition Action filed by me. Eventhough proper notices were issued to the Defendants, non of them were present on the date of trial. Therefore, the case was heard ex-parte. However, now one of the Defendants has filed a case under Section 48 (4) of the Partition Act. Is this possible? Please advice.

G. Perera, Koswatte

Answer: Under Section 48 (4) of the Partition Act as amended, special leave can be obtained by a Defendant on the following grounds:-

- If he/she has not been served with summons.

- being a minor or a person of unsound mind, has not been duly represented by a guardian ad-litem.

- being a party who has duly filed his/her statement of claim and registered his/her address fails to appear at the trial.

Thus, to make an application under Section 48 (4) of the Partition. Act, the Defendant has to prove he/she was not properly served with summons or as to why he/she failed to appear at the trial.

From the facts disclosed by you, it is not clear on which particular ground that the Defendant made the application.

However, if summons were served and if the fiscal returns show that the Defendant was properly served with summons, then the Defendant would not be successful in his application.

Can self-employed person become member of the fund?

Question: I am a self employed person and I wish to become a member of the Fund. Kindly let me know whether a self-employed person could become a member of the Fund. Your kind advice is greatly appreciated.

Jude Fernando,

Kandana

Answer: A self-employed person interested in becoming member of the Fund should, send a notice to the Board in writing, informing of his or her desire to become a member.

The Board would thereafter direct such person to furnish a return in the prescribed form containing particulars of employment.

On receipts of the return, the Board may accept such person as a member and inform his or her accordingly such persons shall contribute an amount equal to 3% of the total earnings from his or her employment.

Failure to contribute towards EPF/ETF

Question: I am employed in a Private Firm. I wish to know what action could be taken against an employer who has failed to contribute towards the EPF/ETF. Please advice.

D. Lasantha

Kadawatha

Answer: The arrears of contributions payable by the employer should be as certained by examining the pay sheets for the period or by calling for a return showing the details of monthly earning of each employee. Thereafter, the employer should be requested to pay the arrears together with the applicable rates of surcharges.

Failure to comply with such a request results in prosecution on Courts for the recovery of all dues.

Amendment of names in EPF Members’ Accounts

Question: I am working in a private company. I am entitled to EPF. In my member account of the EPF, my name appears differently. Please let me know the procedure to follow to correct my name.

Karawitage,

Ragama.

Answer: In amending the discrepancies found in names of members of the EPF, the undermentioned procedure should be followed.

1. A letter of request certified by the employer, which addressed to the Superintendent, E.P.F. - Central Bank of Sri Lanka or to the Commissioner of Labour should be forwarded with the details of the name(s) in the statement and the corrections that has to be done in names of the members to amend the names. A letter as the above is sufficient to correct a discrepancy in the name or in the initials of the name.

2. If the establishment was closed, a letter certified by the Grama Niladari and countersigned by the Divisional Secretary and confirmed by the Asst. Commissioner of Labour/Labour Officer evidencing closure of the establishment and recommending correction of the name would be necessary. It is extremely important to produce the “B” certificate for this purpose.

3. A complete change of names could be done with confirmation attached with pertinent contribution details.

4. Change of names consequent to marriage or on account of legal change of name or to change of name in birth certificate in satisfaction of a legal requirement can be done as follows.

In such instances, the certificate of marriage, certification of birth together with other documents should be forwarded through the employer. The copies of certificate of birth and copies of legal documents should be authenticated by the employer.

For correction of names in non operative establishments of letter certified by the Grama Niladari countersigned by the District Secretary to the effect that the incorrect name and the correct name represent one and the same person and no other, and requesting the name change of the particular member should be forwarded with the recommendation of the Assist. Commissioner of Labour located in the vicinity of the closed establishment. At the time of amending the account name of a member documents in possession of the member such as the “B” Card, appointment letter and the salary slips should be forwarded.

Amendment of National Identity Card number in member’s EPF account

Question: Is it necessary to amend the National Identity Card number in the members account? If so what steps have I to follow? Please advice me.

Anton,

Galgamuwa.

Answer: It’s extremely important to keep the National Identity Card up-to-date. The National Identity Card Number is required for a number of reasons.

1. When applying for refund of benefits

2. When applying for housing loans

3. When establishing identity of members account balances.

4. When certifying Provident Fund available balance with other documents.

The procedure to follow the amendment of national identity card number in the member’s account can be stated as follows.

The correct name, member number, together with the number of the national identity card should be confirmed in writing through the employer. In addition to the confirmation provided by the employer, wherever necessary, written confirmation of the Grama Niladhari or the Commissioner or Registration of Persons indicating reasons for the change in the number of the National Identity Card should be forwarded. Since the National Identity Card is of vital importance, the amendment of the National Identity Card requires a number of proper documents.

Documents necessary to apply for dual citizenship

Question: Please let me know what are the documents and the fees necessary to obtain the dual citizenship in Sri Lanka.

Lili Fernando,

Maharagama.

Answer: You can obtain the Application form from “The Sri Lankan Embassy” in any country or from the Immigration website of Sri Lanka (www.immigration.lk). If you come to Sri Lanka you can get it from the Office of the Divisional Secretary or Citizenship Division, 2nd Floor, Dept. of Immigration and Emigration, No. 41, Ananda Rajakaruna Mawatha, Colombo 10.

The following documentary evidence is necessary together with the duly completed application form:-

(a) Your Original Birth Certificate and a copy.

(b) If a citizen of Sri Lanka by registration, the relevant certificate and a copy.

(c) Birth Certificate of your father or mother and a copy of the same or any affidavit in lieu of it. If the Birth Certificates of the parents are not available, their Death Certificates.

(d) Your Marriage Certificate and a copy.

(e) Your Foreign Citizenship Certificate/Foreign Travel Document/Permanent Residence Visa and a copy of the same or a letter from the Government of the country of domicile confirming citizenship has not been granted to you/your family as yet.

(f) Your current and previous Sri Lanka Passports and copies or an affidavit

* Please state that how Sri Lanka would benefit; if you were granted Dual Citizenship.

Either

(g) Documentary proof of your Academic attainments (minimum a degree of a recognized University)

Or

(h) Original of the documentary proof (deed) of your assets such as lands or other immovable properties in Sri Lanka worth Rs. 2.5 million or above and a copy of valuation report and title report of same.

Or

(i) Minimum one year Fixed Deposit of an amount not less than Rs. 2.5 million.

* Applicants over 55 years of age are exempted from submitting any of the requirements stated at clause (g), (h) and (i) above

If the documents referred to above are submitted without the originals, those documents should have been duly attested by the Sri Lankan Mission accredited to that country, nearest Sri Lankan Mission or Consulate of the country of domicile. The above mentioned documents could be sent by registered post or through the Embassy or by hand. Thereafter the Dept. will forward your application to the relevant committee for approval. On approval you would be duly informed. The applicable fees are given below:-

Dual Citizenship fees:

Principal Applicant Rs. (SL) 200,000.00

Spouse (Rs. SL) 50,000.00

Children under 18 years when applied with parents - each 50,000.00

Directors’ qualifications and disqualifications under New Companies Act

Question: I decided to appoint my brother as a director of a company. Please let me know the qualifications and the disqualifications of the directors under new Companies Act.

Answer: Under the new Companies Act No. 07 of 2007 we can state the qualifications and the disqualifications as follows:

Director’s Qualifications:

Any person who is not disqualified (under Section 202 (2)) can be appointed as a Director of a company. The following persons are so disqualified:-

i) A person who is under eighteen years of age.

ii) A person who is bankrupt.

iii) A person who is or would be prohibited from being a director under the Companies Act.

iv) A person who has been adjudged to be of unsound mind.

v) A person that is not a natural person.

vi) In relation to any particular company, a person who does not comply with any qualifications for directors contained in the articles of that company.

Disqualifications

Where a person -

i) Has been convicted of any offence under this Act which is punishable by imprisonment.

ii) Has been convicted of an offence involving dishonest or fraudulent acts.

iii) Is adjudged insolvent under the Insolvency Ordinance (Cap. 97); or

iv) Adjudged to be of unsound mind

Such person should not, during the period of five years after the conviction or adjudication, as the case may be, be a director or promoter of or in any way, whether directly or indirectly, be concerned or take part in the management of a company, unless that person first makes an application to obtain leave of the Court. Leave may be given on such terms and conditions as the Court thinks fit.

Court may disqualify directors

Where a person -

i) is prohibited from being a director of company under Section 213;

ii) while a director of a company, has persistently failed to comply with the provisions of the Act;

iii) has been convicted of an offence involving dishonest or fraudulent acts in a country other than Sri Lanka; or

iv) was a director of a company which became insolvent and that person’s conduct as a director of that company or of any other company makes that person unfit to be a director of a company,

the court may make an order that the person shall not, without leave of Court, be a director or promoter of or in any way whether directly or indirectly be concerned or take part in the management of a company, for such period not exceeding ten years as may be specified in the order.

Fundamental rights application

Question: I am engaged in a business of my own. Last week, a few policemen came in a jeep and asked me to accompany them to the police station. I asked why and was told that they needed to record a statement with regard to an alleged theft. Although I denied committing such an act, I was taken to the police and few officers assaulted me. That evening I found out that a rival business man who has connections with the police has been behind all this.

Kindly let me know what action I should take.

Godfrey Rodrigo,

Kotahena.

Answer: Immediately, file a Fundamental Rights case naming all the Police Officers who were involved in taking you to the police and assaulted you. If there was inaction on the part of any superior officers, name them as parties as well.

If you received treatment at the hospital, obtain copies of the JMP report and documents relating to the medical treatment. Also make a complaint to the SP of that area.

Labour matter

Question: I have been working as a Storekeeper in a Company and suddenly my services were terminated with effect from 22.06.2008. False allegations were made to the effect that there was a shortage of goods and thus the Company has lost confidence in me.

At the moment I am without employment and facing severe hardships. Please advise me.

M. Murshad,

Borella.

Answer: I presume that the reason for termination is mentioned in the letter of termination.

However, if there was no inquiry held into the said allegations, you can make an application to the Labour Tribunal (which has the jurisdiction over the area you last worked) within six months of termination.

Even if there was an inquiry prior to termination, if you were not satisfied as to the manner in which it was held, i.e. if you were not given a proper hearing, then too you can make an application.

Prescriptive Title to property

Question: I am a 63 year spinster living at the ancestral house in Negombo for the last 33 years. My only sibling (brother) has been living in Colombo since 1988.

He never visited me nor came and stayed at the ancestral house. I have been informed that he is going to file a partition action to have the property divided.

As I do not have any other place to go, I do not want this house to be divided in any manner. I have been living here all by myself. Please advice.

W. Kumarasiri,

Negombo.

Answer: If your brother and you hold this property in common and if you both have derived a title to undivided shares then your brother can file an action to partition the same and to have a divided share.

From the facts revealed it seems that you have been in exclusive possession of the house and therefore you can claim prescriptive title to the house. Section 3 of the Prescription Ordinance requires a party claiming prescriptive title to establish the following:-

Proof of undisturbed and uninterrupted possession

Tittle should be adverse

That is unaccompanied by rent or any other payment

10 years continuous possession

If you can prove the above, you can claim prescriptive title to the premises.