Introduction - Access to justice for all

The Legal Aid Commission lawyers at 48 centres throughout the length and breadth of the country and their Para-Legal Officers and Management Assistants concluded a three day workshop on review and re-organisation of LAC work from October 31 to November 2 at the Youth Council Auditorium at Maharagama.

The constraints confronted by LAC lawyers in providing legal assistance in the Northern and Eastern Provinces were highlighted.

The lawyers in Jaffna, Vavuniya, Trincomalee, Batticaloa, Kalmunai and Akkaraipattu were commended and their work greatly appreciated to bring a semblance of equal access to justice to the conflict affected civilians.

In the first three quarters of 2008, nearly 40,000 indigent persons have been given legal advice or representation in courts to redress their grievances and disputes. In view of the financial constraints and the abrupt cessation of ADB financial support to the legal aid support to Tsunami-affected areas leaving thousands of Tsunami-affected litigants stranded with half completed cases compounding the financial situation of the LAC was discussed. The magnanimous gesture of President Mahinda Rajapaksa for granting an emergency financial allocation to continue the pending litigation earlier supported by the ADB was highly appreciated by the Legal Aid Commission. The Conference commenced on October 31 at the BASL Auditorium with Justice Nissanka Udalagama, Director of the Judges Training Institute as the Chief Guest.

Secretary of the BASL, U.R. de Silva, AAL emphasised the professional responsibility of lawyers to engage in some legal aid work as a part of professional ethics. He also emphasised the need to train para-legal personnel to support legal aid services specially to conduct legal awareness programmes at the village level. UNICEF Specialist on Child Protection Sajeewa Samaranayake and National Convener National Centre for Victims of Crime S.S. Wijeratne respectively made presentations on child rights protection through courts and the pending Bill before Parliament on assistance and protection to the witness and victims.

The Plenary sessions held at the Youth Council Center in Maharagama commenced on November 01 with a discussion on the LAC role on Elders' Protection Law by Elders' Claims Board Chairman Dudley Karunaratne and Addl. Secretary, Ministry of Social Services Yamuna Chitrangani while discussions on drafting of pleadings, writ and appeals jurisdiction of Provincial High Courts were facilitated by President's Counsel Manohara de Silva and LAC Director-General, Justice Hector S Yapa. Two additional discussions took place on November 2 on 'Termination of Employment' by Uditha Egalahewa, AAL and Human Rights Bureau Head Uma Wijesinghe, AAL explained the practical aspects of implementing ICCPR Act, No. 56 of 2007 through the High Courts.

The Conference was attended by all LAC Regional Directors, Legal Officers as well as the Management Assistants.

Questions and Answers

Enforcement of order from Maintenance Board

Question: I got an order from the Maintenance Board against my children under the Elders' Law. Earlier, they were regularly paying me but now they are refusing to pay. Can I enforce that order by the Magistrate's Court? Your advice is greatly appreciated.

- M. Fernando Moratuwa

Answer: Under the Elders' Protection Act No.06 of 2000 - Section 15 states that it can be enforced by the Court of Law. Under Section 32 of the Elders Act Maintenance Orders made under the Act shall be deemed for the purposes of enforcement, to be orders made by a Magistrate under the Maintenance Ordinance and may be enforced by the Magistrate having jurisdiction over the place where the applicant for whose benefit the maintenance order is made, resides, in the same manner as Maintenance Order made under that Ordinance. If you need further assistance, you could call over at the Legal Aid Commission Elders Desk.

Protection of rights of elders

Question: Please let me know the rights of elders under the Protection of the Rights of Elders Act No.9 of 2000.

- G.Aloysius Kandana

Answer: Under the Protection of the Rights of Elders Act No.9 of 2000, the following rights are available to elders:-

(1) Children shall not neglect their parents willfully and it shall be the duty and the responsibility of children to provide care for, and to look into the needs of their parents.

(2) The State shall provide appropriate residential facilities, to destitute elders who are without children or are abandoned by their children.

(3) No elder shall, on account of his age, be subject to any liability, restriction or condition with regard to access to, or use of, any building or place or institution which any other person has access to or is entitled to use, whether on payment of any fee or not.

Facilities offered by Sri Lanka Bureau of Foreign Employment

Question: My brother has decided to go to a Middle Eastern country. He is not channeling any licensed foreign employment agency.

Please let me know if there are any special facilities provided by the Sri Lanka Bureau of Foreign Employment (SLBFE) if you register yourself with the Bureau? Please advise.

- J. Mohamed Kelaniya

Answer: It is advisable for your brother to register himself with the SLBFE before his departure to any Middle East country. It has now become a legal requirement that all Sri Lankans who migrate for foreign employment should register with the SLBFE. The following benefits are provided by the SLBFE if you are so registered:-

(a) Job security.

(b) Free Insurance coverage.

(c) Scholarships and free educational equipment for your children.

(d) Free medical facilities for family members.

(e) Low interest housing loans and self employment loans.

(f) Intervening in your problems/difficulties at workplace.

(g) Providing legal assistance when required.

(h) Welfare services provided free of charge at "Sahana Piyasa" Welfare Centre.

(i) Social security services.

(j) Compensation and reimbursement of funeral expenses in the case of death of migrant worker.

New pension scheme

Question: I understand that a new pension scheme has been introduced by the Social Security Board for disabled persons known as "Samaka Diriya". Please let me know if there are any other pension schemes introduced by the Board to persons who are neither in the Government service or disabled. If so, please let me know details?

- Janaka Narahenpita

Answer: The Social Security Board was established under the Act No. 17 of 1996. As per the said Act, several pension schemes have been introduced.

1. 'Samaka Diriya' has been introduced for persons with disabilities.

2. A pension scheme for the practitioners of Indigenous Medicines who are registered with the Ministry of Indigenous Medicine has been introduced known as "Helaweda Rekawarana" and it is implemented and is functioning with the coordination of the Department of Ayurvedic Commissioner and the Ministry of Indigenous Medicine.

3. A special pension scheme has been inaugurated for the handy craftsmen named "Sip Savira" who are registered in the National Crafts Council, and it is in operation with the coordination of Sri Lanka Social Security Board.

4. Another new pension scheme is in process for those in foreign employment. Preliminary arrangements are over and it has been forwarded approval and implementation.

5. Discussions have been held to introduce a pension scheme for employees of the National Lotteries Board and their agents and sales personnel.

6. Preliminary arrangements have been made to introduce a pension scheme aimed at women named "Diriya Kantha" with the coordination of the Ministry of Women Empowerment and Child Protection.

7. Preliminary arrangements are being prepared to implement a pension scheme for the journalists, which has been approved by the Social Security Board.

If you need further assistance you can send a request letter to the following address with a certified copy of your identity card or Birth certificate to the following address:-

Sri Lanka Social Security Board, 150A, Nawala Road,

Nugegoda.

Tel. Nos.2823667/2823627

Fax Nos.2823669

Land dispute

Question: If there is a land dispute among the parties according to the law how we find out which District Court have Jurisdiction to hear and determination the case?

- Amalee Mahawewa

Answer: Under the Civil Procedure Code, if there is any land dispute, the plaintiff has to file a case in a District Court where the land is situated. If any land is situated in two Districts, the plaintiff can file action in any one of the District Court where the land is situated.

Vacation of post notice

Question: I was working in a Company as an Assistant Stores Executive. We have branches islandwide and against my wishes, I was transferred to the Company's Branch Office in Kandy. Since I have personal problems, I did not report to work in the Kandy Branch Office. After two weeks, (i.e. on 22.10.08), I received a 'vacation of post' notice by post. Please advise me what steps to take.

- M.Rodrigo Colombo 8.

Answer: The Management has the authority to transfer any employee for administrative purposes. Even if the transfer is unjustified, still you have to report to the place you have been transferred to. It is only after reporting, you can challenge the transfer. Since you have not reported to work for two weeks, the Management can consider you as having vacated your post.

Payment of Gratuity

Question: I was employed in a Mercantile Company for seven years and nine months. After the termination of my service, I went to collect my Gratuity. I was paid Gratuity for only seven years. When I inquired, I was told that I am not entitled to be paid gratuity for the nine months . Is this correct in law?

- Mohan Perera Delgoda

Answer: Yes. Gratuity is computed only for completed years of service. So you are entitled to gratuity only for the seven years of completed service.

English translation of Birth Certificate?

Question: My brother wants to get an English translation of his Birth Certificate. There are so many Sworn translators islandwide. Since he needs this translation for foreign employment, kindly let me know to whom should he go to get this done? Please advise.

- P.Anura Kandy

Answer: It is always advisable to get it done through the Registrar-General's Office . You can obtain a copy of an English translation of your Birth Certificate/Death/Marriage Certificates through the Registrar-General's Department at No.280, Main Street, Colombo 11. A separate application should be made in respect of each type of Certificate (Marriage, Birth & Death Certificates). The Application Form should be filled by you on your own with a copy of your original Birth Certificate attached thereto. The charge for one translated copy of a Birth, Death or Marriage Certificate is Rs.100.

Any number of copies can be applied in one application. The application should be sent to the Registrar- General's Department or any District-Registrar's Officer where there is a Sworn Translator. Please enclose a self addressed envelope with necessary stamps for normal post or registered post.

RE: Computation of gratuity

Question: I am an Executive working in the Human Resources Department at my company's Head Office in Colombo. There are over 100 employees working in our Factory which is situated out of Colombo. Please advise me on the following matters:-

i. The computation of gratuity

ii. When it is payable

iii. Surcharges if any for delayed payment.

- P.Gomez, Colombo 6

Answer:

(i) The computation of gratuity is done as follows:

Employee type, Monthly paid employee each, Daily paid employee, Piece-rated employee wages. Wages or salary means or salary, special living

Gratuity, 1/2 month's salary (last drawn) for each Completed year of service, 14 days (last drawn) salary for each Completed year of service.

Average of last three month's wages, basic or consolidated wage, Cost of living allowances and Allowances or any other similar Allowances.

(ii) Payment of gratuity should be made within a period of thirty days of the date of termination of employment or resignation from employment to the employee in an industry which employs 15 or more workmen. The workmen should have completed five years of continuous and uninterrupted service to be eligible for this payment.

(iii) Surcharge should be paid for delayed payment as follows:

Period Percentage

Not exceeding 1 month from the due date 10%

Exceeding 1 month but not 3 months 15%

Exceeding 3 months but not 6 months 20%

Exceeding 6 months but not 12 months 25%

Exceeding 12 months 30%.