ICCPR Act

Sri Lanka acceded to the International Covenant on Civil and Political Rights (ICCPR) in 1980, which is the key International Convention on Civil and Political Rights.

The recent enactment of the ICCPR Act No. 56 of 2007, with the objective of giving recognition to certain residual civil and political rights not recognised by the Constitution and other operative laws, shows to some extent, the willingness on the part of the Government to give effect to its international obligations.

The biggest challenge that the Government of Sri Lanka faces is the task of providing humanitarian assistance to the affected civilian population in the North and East.

Measures

To the Internally Displaced Persons, the term human rights would mean another rhetoric term, unless special rehabilitation measures are taken to secure their basic rights. Apart from the urgent need to take measures to strengthen local government capacity building, there is the need to strengthen access to the judicial system, create awareness on human rights and expand the human rights jurisdiction. At present the human rights jurisdiction is limited to the Supreme Court.

This extraordinary piece of legislation has certain implications worth discussing which reflects on the emerging trends in the civil and political rights machinery in Sri Lanka. Not only in the North and East, with regard to the other provinces of the country, making this law work for the benefit of the poor and the disadvantaged has thus become a challenge.

This Act contains only four main rights based provisions, namely Sections 2,4,5 and 6 conferring inter alia; the right to be recognised as a person before the law; entitlements of offenders, rights of children and right of access to state benefits, which do not correspond verbatim to the provisions in the Convention.

The right to be recognised a s a person ensures that every person has a right to a birth certificate, identity card or any other identification document essential to prove his/her identity.

The rights of an accused are spelt out in one piece of legislation for the first time, which include the right to legal aid. Also for the first time, the child is declared entitled to a birth certificate.

Further, ensures protection from maltreatment, neglect, abuse or degradation. Prior to this enactment, the authorised officers to file actions regarding issues relating to children were the Labour officers, Police officers and officers of the National Child Protection Authority. Now the situation is different and the interested parties themselves can file actions under this Act.

Convention

The next right guaranteed is the right to access to services provided by the State, which is so novel and has wide implications not even contemplated under the Convention.

This provision ensures accountability and in the long run would reduce corruption as it imposes a positive obligation on the part of the public officers to be diligent when executing public functions.

In terms of Section 7, the High Court is vested with the jurisdiction over the enforcement of human rights recognised under the Act. However, this excludes adjudication upon human rights violations which fall within the ambit of fundamental rights or language rights recognised in the Constitution. Further, remedy is made available only against executive or administrative action.

Jurisdiction

The other significant aspect is the three month period given to invoke the jurisdiction in case of an alleged infringement. This leaves room to initiate action under this Act, even if the violation amounts to an infringement of fundamental right, if one month has lapsed.

The power conferred to grant relief by virtue of Section 7(4) is unlike in any other statutory provision and empowers court to make directions as it may consider just and equitable. This section could be employed to give relief even if not prayed for, if the circumstances warrant it.

Nevertheless, it is understood that the effective implementation of this Act lies solely in the hands of the judges and only innovative judicial thinking would help to create the expected machinery of human rights protection.

Uma Wijesinghe, AAL

Head, Human Rights Bureau, Legal Aid

Commission

International Women's Day celebrations in Moratuwa

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Sri Lankan women have gender parity in education but have to win political representation- S.S. Wijeratne

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Addressing a representative gathering of over 250 women organised by the Legal Aid Commission (LAC) and the Divisional Secretary, Moratuwa, LAC Chairman S.S. Wijeratne said that Sri Lankan women have by hardwork raised the gender parity in Sri Lanka to the 12th place in the world but they still have a long way to go in achieving political representation and eradicating gender based violence.

On March 8, 2009 International Women's Day was dedicated to achieve a Sri Lanka free of gender based violence and in this regard the LAC conducted programs in Moratuwa, Vavuniya and Kalmunai to create awareness in women on their legal rights.

The LAC Chairman said that women are subjected to violence in homes (domestic violence) and public transport and work places and as revealed by cases that come before the 48 Legal Aid Centers, women in Sri Lanka are deserted by their partners leaving them to fend for themselves and children, which should be considered a serious form of violence against women. Out of the 20,000 cases Legal Aid lawyers are fighting in courts, 10,000 are regarding deserted women seeking maintenance and divorce from men.

The greatest natural contribution of women is motherhood which is seriously affected with the alarming break up of marriages. Women's achievement in education and employment should not be allowed to harm the institution of marriage.

Secretary, Ministry of Social Development Viji Jegarajasingham said that elderly women in Sri Lanka are facing greater challenges as 80% of the over 80 population consist of women who have to cope up with life without husbands.

Ensuring income and health security to such older women is an urgent social need for which steps should be taken.

LAC Director-General Justice Hector S. Yapa spoke of the provision of free legal aid to women and Inspector Manoj Samarasekera of the Womens and Children Bureau of Police narrated different kinds of stories related to domestic violence which have been reported to the police.

S.S.Wijeratne

Questions and answers

Elders Act No.9 of 2000

Question: I am a 72 year old woman, suffering from many ailments. I am staying with my eldest son at our ancestral home. Since late my daughter-in-law is ill treating me and is physically assaulting me. I can not bear this any longer. Please help.

Kantilata

Maharagama

Answer: You have to take action under the Elders Act No.9 of 2000 to get maintenance from your son. (If you have any other children you can make them parties) Further you can file an action under Domestic Violence Act No 34 of 2005 where you can get redress for harassment by your daughter-in-law.

Wages Boards Ordinance.

Question: I am employed as a driver in a private company and I want to know whether drivers of cab services are covered by the Wages Boards Ordinance.

Sham, Kandy

Answer: All employees in private sector including Government corporations and co-operative service coming within Wages Boards are governed by this Ordinance. This includes cab services as well and there is a Wages Board established for transport services.

Production of glass bottles

Question: I am an employee at a private company engaged in the production of glass bottles. Several workers have not been paid their salaries on time. We made requests from the Management but was told to resign if we can not work as we are told. Please advise as to what cause of action we can take?

Kumarasiri

Panadura

Answer: Under the Wages Boards Ordinance employees have an obligation to pay the salaries on time and if not the Labour Commissioner can take action to recover the same. Please inform the Commissioner of Labour.

Membership certificate

Question: Please let me know how employees could receive their certificate of membership?

Student from Matara

Answer: An employee must be registered in the Provident Fund within 14 days of joining. For this purpose, a set of forms, "A", "B", & "H" could be obtained free of charge from the labour office located in the vicinity. On perfection of the set of forms, based on the personal information obtained from the employee, it must be duly certified and forwarded to the labour office situated close to his establishment. The employee will be registered as a member by the Labour Office and the certificate "B" will be forwarded in the employer. The "B" card (Employee membership card) must be handed over to the employee.

In perfecting forms "A", "B" & "H" employer is requested to examine the birth certificate of the employee, his National Identity Card and birth and marriage certificates of the family members and also obtain a clear impression of fingerprints of the employee. This procedure will enable the employee to face no difficulty at the time of obtaining refund of benefits of his contributions.

Marriage Certificate

Question: I got married two weeks ago at Baththaramulla. But in my marriage certificate there is a mistake. How can I get this corrected? Please help me?

Anu

Matara

Answer: Since you got married only two weeks ago I would advice you to meet the Registrar of Marriages at the Baththaramulla Divisional Secretariat as soon as possible or else. If you want to amend your Marriage Certificate you have to file a case in the District Court where your marriage was registered. You have to cite the Registrar-General and the Registrar of Marriage as Respondents in the case. If you need any further advice, please call over at the Legal Aid Commission, Head Office at No.129, Hulftsdorp Street, High Court Complex, Colombo 12.

Rent problem

Question: I rented my house to one of my friends. But I got to know that he is using the premises for illegal purposes. Please let me know if the tenant is using the rented premises for illegal purposes what shall I do?

Samantha, Maiyanganaya

Answer: If you are the land owner of the said premises you can take necessary action to prevent his illegal activities. However, under the provisions of the Rent Act, if the tenant is using the premises for illegal purposes, you can make a complaint to the police. In that manner you have a right to terminate his tenancy and give notice to vacate the premises on a given date. If your tenant fails to vacate the premises on the given date, you can then proceed to file action in the District Court and take necessary steps to eject your tenant, his servants, agent and any person under him. You also have the right to recover damages until handing over vacant possession of the said premises.

Consumer protection

Question: As we know March 15 is commemorated as World Consumer Protection Day. we would like to know

* Who can obtain the services from the Consumer Affairs Authority

* What are the main functions of the organization?

* Requirements to be fulfilled by the aggrieved consumers when seeking any redress

* How can a complaint or interested party make a complaint or obtain information?

Tangalla

Answer: Aggrieved consumers and traders can obtain the services from the Consumer Affairs Authority.

The Functions of the authority are:-

* Take actions on consumer complaints.

* Take actions on complaints by traders on anti- competitive practices and unfair trade practices.

* Specifying goods and services which are essential to the life of the community and regulating the prices of the goods and services.

* Consumer awareness and empowerment mainly by establishing consumer Organizations

* Issuing of directives to traders and manufactures on labelling, picketing, price marking etc.

* Obtaining the required redress for the aggrieved and punishment of offenders through the judicial system.

* Conducting market investigations and market surveys.

* Warning of any trader or manufacturer in the case of first contravention of the provisions of CAA Act.

The Requirements to be fulfilled by the aggrieved consumers are:-

Complaint must be made in writing. It must be forwarded within the specified time by the Act. It should be supported with the relevant documents.

Complaints should be addressed to Director General of the Authority.

Address: Consumer Affaires Authority, CWE Secretariat Building 27, Vauxhall Street, Colombo 02.

Chairman Tel:

011-2393496/239914

Director General Tel:

011-2399149

General Tel:

011-2445897

2393577/2393495

Fax: 011-239914

Email: [email protected]

[email protected]

[email protected]

Statutory holidays

Question: My brother is employed in a Mercantile firm and would like to know the following:

(a) How many statutory holidays are there as at present?

(b) (i) What is the law that is applicable if an employee works on a statutory holiday in a Mercantile firm?

(ii) Work on a statutory holiday coinciding with weekly holidays.

Taranga, Mahawa.

Answer: (a) There are 08 Statutory Holidays as at present. They are -

1. Tamil Thai

Pongal Day.

2. National Day.

3. Milad-Un-Nabi (Holy Prophet Mohamed's Birthday) 04. Day prior to Sinhala and Tamil New Year.

5. Sinhala and Tamil New Year.

6. May Day 07. Day following Vesak Full Moon Poya Day 08. Christmas Day.

(b) (i) The Law that is applicable is the Shop and Office Employees Act. If an employee working in a Mercantile firm works on a Statutory Holiday, the Employer is required to grant a paid holiday in lieu prior to the 31st of December of that year or pay an extra day's wage. Strictly speaking in terms of the Act the approval of the Commissioner of Labour is required.

(ii) Where Statutory Holiday coincides with weekly holidays or half holiday, that day would be treated as the Statutory Holiday and the weekly holiday or the half holiday must be allowed on other days within the course of the week or the week thereafter.

What is a Promisstory Note?

Question: Please let me know - what is a Promissory Note?

Kanchana, Matugama.

Answer: A Promissory Note is another form of a loan contract. It is in fact a 'promise to pay' where one party agrees to pay a particular sum of money to another either with or without interest. The repayment could take place either on demand or on a particular date.

If the borrower goes into default under a Promissory Note, the lender has the right to institute legal action against the borrower for the amount specified in the Promissory Note. Promissory Notes are governed by the provisions of the Bills of Exchange Ordinance No.25 of 1927 and its amendments.

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Obtaining certified copies of birth, death and marriage certificates

Question: We have been living in France for the last 10 years. We have relations in Sri Lanka. We want to know whether one of our relations can obtain certified copies of our birth, death and marriage certificates. Can you kindly explain the procedure through your valuable page?

Chaturangi

Narahenpita

Answer: Yes, your relation can obtain certified copies of your birth, death and marriage certificates, on behalf of you. But in the application from they have to mention their relationship or its better to send them a request letter stating that you have given the authority to the relative.

Please follow the procedure given below:

(a) To obtain certified copies of birth or death certificate an application should be made to the Divisional Secretariat in which location the birth or death occurred.

(b) To obtain a certified copy of a marriage certificate an application should be made to the Divisional Secretary in whose division under which the registrar who solemnized the marriage function officially.

(d) To obtain a certified copy of a marriage certificate of a marriage solemnized at a Christian church - an application should be made to the Divisional Secretary of the same division where the marriage was solemnized.

(e) To obtain the birth or death certificate of a person whose death took place in a foreign country and such birth or death has been registered in the Sri Lankan Embassy in that foreign country, applications should be made to the Assistant Registrar General of the Central Record Room of the Registrar General's Department.

(f). To obtain a copy of a certificate of adoption an application should be made to the Assistant Registrar General of the Central Record Room of the Registrar General's Department .

Specimen forms in Divisional Secretariat office in which applications should be made

For obtaining a birth certificate - Registration B 63

For obtaining a death certificate - Registration B 63A

For obtaining a marriage certificate - Registration B 121

For obtaining a certificate of

Muslim Marriage - Registration E 41