Legal Aid commission
Dignity of the Judiciary
Independence of the judiciary, bulwark preventing erosion of the
liberty of the people in a democratic country is closely interconnected
with the dignity in which the judiciary is held.
The institutions associated with the judiciary, the judges who are
officiating in the temples of justice from a Magistrate to the Chief
Justice should evince utmost respect not only from the lawyers and
litigants who seek for justice but from public and all institutions of
the state. Judges are the guardians of people’s liberty from threats
emanating from whatever source both from state or non state actors.
Sri Lanka has hallowed traditions of judicial independence dating
from the British period. Judges have historically evoked respect
nationally and internationally despite their ethnic origins, British
Burghers, Tamils, Muslims or Sinhalese.
The existence of independent and a respected judiciary is the corner
stone in the provision of equal access to justice to all including the
poor. Economically and socially marginalized sections of the society are
legally guaranteed that justice could be sought before an independent
judiciary. Legal aid programs to the poor are universally adopted to
ensure that marginalization could have access to judicial impartiality.
Judges are also the guardians of the Rule of Law in a society without
which anarchy will prevail. It is an important feature of the legal aid
providers to constantly safeguard the dignity of the judiciary as legal
aid to the poor who seek justice becomes meaningless if the temples of
justice are considered tainted.
Judicial pronouncements may attract bonafide reasonable criticism on
issues of law, but the judicial conduct should be always beyond
reproach. During the last few weeks the legal circles were justifiably
proud that a new Chief Justice with national and international judicial
experience at the highest level was elevated to steer the destiny of Sri
Lankan judiciary.
However, during the same period two publications? one a critical
report on the Sri Lankan judiciary by the International Crisis Group
based in Brussels, another an anonymous petition addressed to the Chief
Justice with detailed allegations about the improper conduct of some
members of the judiciary in charge of adjudication and administration
were in wide circulation. These publications do not help the cause of
unblemished judiciary.
International crisis group report in its criticism of the Sri Lankan
judiciary refers to the opaqueness of the judicial administration. In
the absence of transparency; judicial short comings become the subject
matter of corridor gossip and anonymous petitions.
The disclosures contained in the anonymous petitions are scurrilous
and shocking and even if there is an iota of truth needs urgent
investigation to clear the names of the Judicial Officers mentioned by
name. If the allegations are ignored without any investigation,
irreparable damage would befall the Sri Lankan judiciary.
Public Legal Awareness Unit
Law should benefit poor - Justice Minister Milinda Moragoda
Minister of Justice and Law Reforms Milinda Moragoda during his first
visit to the Legal Aid Commission head office recently was received by
the LAC Chairman S.S.Wijeratne, Commissioner Manohara de Silva, PC,
Upali Gooneratne, Rohan Sahabandu, Dr.W.D.Rodrigo, Swarna Perera, Uditha
Egalahewa and Secretary of the Commission Lilanthi de Silva.
The Minister addressing the LAC staff said that as access to justice
for the poor is essential to protect the human rights of the poor, he
will on the basis of the Commission’s recommendation’s take the
necessary steps to improve the delivery of legal aid to the poor people.
He also stated as he was a member of the International Commission on
legal empowerment of the poor, he will try to get the support from the
UNDP who was the sponsor of the Commission.
LAC Chairman S.S.Wijeratne handed over a collection of LAC
publications to the Minister and stated that during the past four years,
Legal Aid Centres in the island were increased from 9 to 49 and another
15 centres would be added this year with the assistance of the Access to
Justice Program of the UNDP.
Until all the 85 court complexes benefit from legal aid, the LAC
cannot state that Sri Lanka has a complete legal aid program.
Further training of legal aid lawyers in the best professional skills
is vital to meet the needs of the poor.
ICLP Mediation Program
The Institute for the Development of Commercial Law and Practice will
conduct its mediation program on August 8 from 9 am to 4.30pm at the
ICLP Arbitration Centre.
For whom
Any professional who has an interest in alternative
dispute resolution mechanisms.
Resource Persons
Secretary General of ICLP Arbitration Centre
S.S Wijeratne.
Community Mediation
Mrs. Kamalini De Silva, Additional Secretary,
Ministry of Justice.
Commercial Mediation in Commercial Contracts
Ms Nadija Tambiah, Head of Secretarial &
Legal John Keells Holdings PLC
Mediation under Public Utilities Act
Public Utilities Commission Yasantha Rathuwithana, Public Utilities
Commission
Mediation in practice
M. Thirunavukarasu , Mediator Trainer-Ministry
of Justice
Contact Ishara, ICLP Arbitration Centre, 61, Carmel Road, Colombo 3,
Tel/Fax: 2346163/4, 0775375998 email: [email protected] for further
details.
Invitation to Attorneys-at-Law
Applications are invited from Attorneys-at-Law with six years
practice in the Supreme Court and the Court of Appeal and with
experience in human rights based legal aid work.
Position: Legal Officer, Human Rights Bureau.
Closing Date: August 15, 2009
Mailing Address: The Chairman
Legal Aid Commission
129, Hulftsdorp Street,
Colombo 12.
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.
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
Deduction of housing
loan from gratuity payment?
Question: I was employed in a leading Organization in Colombo for 15
years. When I retired on 10.05.2009 I was paid gratuity after deducting
the balance housing loan. I obtained a housing loan from the
Organization in January 2004 to be settled within five years. There was
an outstanding balance on this loan at the time of my retirement. The
loan agreement provides for unpaid loan to be recovered from gratuity.
Is this in order? Please advise me whether I can file action in Labour
Tribunal?
T.Joseph, Seeduwa.
Answer: Gratuity is due to you under the Payment of Gratuity
Act No.12 of 1983. The Labour Tribunal has the power under this Act to
go into forfeiture of gratuity. This being a deduction under the Loan
Agreement between you and the Organization where there is specific
provision for recovery of the loan from gratuity it cannot be taken as
forfeiture. Labour Tribunal will not have jurisdiction to grant relief
to you. There was a recent case in the Labour Tribunal, Colombo which
held that it has no jurisdiction. This decision of the Labour Tribunal
was affirmed by the High Court, Colombo. You may seek the assistance of
the Commissioner of Labour who is empowered under the Payment of
Gratuity Act No.12 of 1983 to take action to recover gratuity due in
law.
Entitlement of maternity leave for
birth of twins
Question: I am 28 years old, married and working in a
Mercantile firm for the last six years. During my last visit to the
doctor, after a scan my doctor informed me that I will give birth to
twins. This will be my first confinement. Please let me know -
(a) Since I will be having two children, will I be able to obtain
double the maternity leave?
(b) How many days of maternity leave will I be entitled to for my
second confinement?
Mrs.P. Miranda
Ratmalana
Answer: In respect of the birth of the first child, a female employee
is entitled to 84 working days as maternity leave provided the
confinement results in the birth of a ‘live’ child.
In respect of the birth of the second child, she will be entitled to
84 working days on full pay.
For the third or subsequent confinement she will qualify for only 42
working days on full pay.
If an employee has lost a child and at the time of the third
confinement she has only one child, she could qualify for 84 working
days of maternity leave for the third confinement.
If a female employee on her first confinement gives birth to twins is
entitled to 84 working days as maternity leave and not double the leave.
Though it is not expressly stated in the Law for the second confinement
she will be entitled to 42 days as maternity leave on the basis she
already has two living children, what is material is the number of
children at the time of the confinement and not the number of previous
confinements.
Termination of Tenancy Agreement
Question: I have rented out my building to one of my friends
after signing a Tenancy Agreement. As per the tenancy agreement he is
paying the rent and all the utility bills regularly. The electricity and
water bills are paid under my name. Very recently, I got to know that my
friend is using the premises for illegal purposes.
In order to get rid of my friend, I informed the Electricity Board to
disconnect the electricity but the Electricity Board has refused to do
so.
Please let me know whether I could terminate the tenancy agreement?
Your kind advice is appreciated.
P. Upawansa
Delgoda
Answer: If your tenant is paying the electricity bills
promptly, you have no right to inform the Electricity Board to
disconnect the electricity line used by him. 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.
Can I make complaint to Police
against Job agency?
Question: I went to a Job Agency which is registered under the
Foreign Employment Bureau. After facing two interviews, I was selected
for the post of Electrical Supervisor in a Construction Company in the
Middle East.
The Job Agency issued me a visa for two months and they charged me Rs.
65,000 for passport, visa and ticket. My visa is due to expire in a few
weeks but they have still not given me my passport and the ticket. I
feel that I have been cheated by the said Job Agency as they keep on
giving various excuses and delaying my trip. Can I make a complaint to
the Police? Please advice me.
P.M. Marzook
Mattakkuliya
Answer: You have mentioned that your Job Agency has been
registered with the Foreign Employment Bureau. So there is no need for
you to go to the Police as the Foreign Employment Bureau has the power
to investigate into your matter. The Foreign Employment Bureau has
already issued circulars to the police stations to bring matters of this
nature to their books and the Foreign Employment Bureau will thereafter
investigate and take appropriate action against such Job Agencies and
even cancel their registration under the Foreign Employment Bureau Act
No.21 of 1985. Therefore, please make a complaint to the Foreign
Employment Bureau. Their address is given below:-
The Foreign Employment Bureau, No.234, Denzil, Kobbekaduwa Mawatha,
Koswatte, Battaramulla, Tel No.011 2864118/2864119
If you need further information you could contact our Migrant Workers
Desk, Legal Aid Commission, Head Office at No.129, Hulftsdorp Street,
Colombo 12.
Payment of Overtime
Question: A specific private sector executive who is not normally
paid an overtime for working on a holiday is paid an allowance per hour
for the work done when he works beyond 4 hours and also when he works
during a weekend/holiday.
Also all employees whether Executives or lesser Grade employees of
this specific private sector, when required to work in a different
location away from the normal working place are paid subsistence
allowance and also lodging allowance if an overnight stay is
necessitated.
If an Executive spends about 8-9 hours for travelling only on a
Sunday exclusively for the purpose of performing a specific function on
Monday in a different location and stays overnight and if he is paid the
subsistence and lodging, is he entitled for the allowance payable for
working on a holiday?
If your answer is no, in that event is the employee entitled to
obtain lieu for sacrificing his holiday? If your answer is no for that
question also, is an employee who travels to a different location and
works for the whole week including a weekend (official work and not
travel) and claims the subsistence and lodging for the whole period,
entitled for the special allowance payable for working on a holiday?
If your answer is yes to this question, is such employee entitled for
lieu leave if he forgoes the special allowance payable for working on a
holiday?
Your kind reply will be much appreciated.
S. Udaya Kumar
(Sent by email)
Answer: Normally, Executive Officers are not entitled to overtime
payments. However, if as you have mentioned, your Institution pays
overtime to Executives, it seems that such Officer is entitled only for
working hours and not for travelling, i.e. the actual working hours and
not the time spent for travelling.
Can I claim gratuity from earlier company?
Question: I was employed in a recognized Company (it was a group of
Companies). After working for several years, I joined another Company.
However, my earlier Company did not accept my resignation. After I
joined the new Company, my previous Company gave me a lot of trouble. I
thought I will not be able to claim my gratuity because I resigned, but
recently I got to know that I can claim my gratuity if I file a case in
the Labour Department because I have worked for 10 years. My problem is
that the Group of Companies is closed but my Boss is still living
somewhere in Colombo.
Please give me a clear advice on this matter.
M.Ifthikar
Boralesgamuwa
Answer: If your Employer has more than 15 employees and your
services have not been terminated for misappropriation of funds or
causing any damage or loss of property of the Employer, your Employer
cannot deprive you or your gratuity under the Payment of Gratuity Act
No.12 of 1983. Since you have already resigned from your employment, you
should make a complaint to the Commissioner of Labour to claim your
gratuity against your employer.
Pre-mature termination of contract
Question: I was employed as a Research Assistant by an NGO for
a period of two years commencing from the 1st of January 2008 to 31st of
December 2009 at a monthly salary of Rs.55,000. My contract does not say
that it will be extended for a further period as determined by the
Employer. I am now 53 years and took up this job leaving the other job
on the understanding that I could work till December 31, 2009. I
submitted my interim report last week. My presentation was appreciated
by those present at the meeting.
The Program Manager suddenly informed me that my services will not be
required after the 31st of July 2009. To-date I have not been found
fault with my work. Neither did I receive any letter from my employer
reprimanding me for any lapse. For that matter no letters have been
issued to me calling for explanation with regard to my work. On the
other hand I have been commended for my work. I seek your advice in the
matter. S.Sigera
Pannipitiya
Answer: Your contract is for a period of two years. By July 31, 2009
you will be completing 19 months with your employer. You have five more
months. According to your contract, your contract does not say that your
contract will be extended for a further period. You will therefore be
entitled to claim compensation up to the end of your contract.
Since you have not been given any reason for your termination in
writing, you could seek relief before:
(a) The Commissioner of Labour under the Termination of Employment
(Special Provisions) Act No.45 of 1971.
(b) Before a Labour Tribunal.
You should apply to the Commissioner of Labour or to the Labour
Tribunal before the 31st of October 2009 for relief.
Entitlement of EPF
membership?
Question: Please let me know what kind of job is entitled to
EPF Membership? I await your kind answer through your valuable Legal Aid
Page.
Wilfred Silva
Athurugiriya.
Answer: A person is entitled to membership in the Employees’
Provident Fund from the very first day that he/she is recruited to any
one of the following categories of employment:-
1. Employees who are permanent, non-permanent, apprentices,
temporary, casual, who work in shifts during the day; those who work for
a period less than one full day.
2. Employees who work on piece rate, on contract basis, on commission
basis, on quantum of work basis.
3. Employees on monthly pay, weekly pay, daily pay.
4. All ranks of employees from Labour grades to Management grades.
All the above mentioned categories of employees, whether male or
female, if remunerated in cash or any other manner, are entitled to
membership in the Employees’ Provident Fund.
Can I take legal action against daughter-in-law?
Question: I am an 82 year old lady living with my only son. My son
and I used to live in the same house before he got married and he used
to look after me. But after his marriage, my daughter-in-law did not
like the idea of my living with them. Now she is continuously harassing
me and is very cruel to me. Can I take any legal action against my
daughter-in-law? Please advice me.
Mrs.P. Fonseka
Kohuwala
Answer: Under the Domestic Violence Act No.34 of 2005, you can
either by yourself or by making a complaint to the Police file an action
against your daughter-in-law. The Magistrate is empowered to grant an
interim protection order preventing your daughter-in-law from harassing
you.
Registration of Trade
Union
Question: We are employed in different capacities at a Private
Sector Company. We like to form a Trade Union and would like to know the
impact of registration of a Trade Union?Kindly advice us.
Sent by email
Answer: You have to register the Trade Union within three months of
forming the same by filling the Application Form with seven minimum
signatures. Once a Trade Union is registered it becomes a legal entity
and you can sue and be sued in the name of the Trade Union.
Legal Aid Commission of Sri Lanka
129, Hulftsdorp Street, High Court Complex, Colombo 12, Fax: 2433618,
Email: [email protected],
Website: www.lawaid.org
LAC centres and telephone numbers
Centre Tel. No.
`
01. Head Office 2433618, 5335329, 5335281
02. Tsunami Regional Centre 060-2137153
03. Welikada Prison 2433618
04. Bandarawela 057-2224733
05. Matale 060-2664588
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 055-2276191
19. Ampara 063-2223496
20. Kegalle 035-2231790
21. Chilaw 032-2222175
22. Akkaraipattu 060-5675333
23. Balapitiya 091-2255753
24. Matara 041-2233815
25. Vavuniya 024-2221863
26. Trincomalee 026-5676023/026-2222293
27. Kalmunai 067-2223710
28. Jaffna 021-2224444
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 2809068
44. Welimada 060-2577019
45. Kantalai 060-2263091
46. Tambuttegama -
47. Mt. Lavinia 2718708
48. Tissamaharama 047-2239611
49. Baddegama - |
