legal aid commission

Corporate social responsibility

Business and Human Rights:

The mission statement of business written in 1970 by Milton Friedman that "the one and only social responsibility of business is to increase its profits" is still considered valid but inadequate. Business cannot continue to prosper by remaining indifferent to environmental degradation, ecological disasters and human rights issues in the surrounding community.

Global business leaders have already articulated the need for change. George Soros had cautioned that "the doctrine of laissez-faire capitalism holds that the common good is best served by the uninhibited pursuit of self interest. Unless it is tempered by the recognition of common interest.....is liable to break down". The Chief Executive of BP speaking in 1998 stated "we (business) are part of society and have some responsibility to contribute to its positive development. That covers such issues such as human rights". The mission statements of many transnationals now reflect this change in attitude towards corporate responsibility for human rights.

The classical market fundamentalist dictum was, if business looks after profits and generates employment, the social rest, like equal opportunities and respect for human rights would automatically follow. This dictum is already revised by many transnationals like Levi-Strauss, Reebok, The Body Shop, Royal Dutch Shell, Nokia, Statoil and British-Telecom who have adopted corporate codes incorporating human rights principles.

The mission statements of many of these giant firms openly support the Universal Declaration of Human Rights.

This, Royal Dutch Shell in their social mission statement in 1998 unequivocally stated that the company will "engage in discussion on human rights issues when making business decisions". It is in this context, that the new gurus of capitalism have grafted human rights, environmental and ecological responsibility to the good governance codes of the business houses during the past five or six years. If the business houses, who sit at the top of the commanding heights of the economy, remain aloof without being pro-active on human rights issues, they are bound to go down on the same road as Communism but this time for different reasons. Engaging in the human rights discourse is therefore a competitive survival strategy.

The face of business has also changed radically during the past decades. The biggest business today is intellectual business. Agriculture and industry play a secondary role but is radically transformed by the infusion of intellectual capital.

Biotechnology and robotics are already having a profound influence on the traditional sources of growth and wealth. Knowledge based industries including IT depend on the intellectual and skill potential of human beings. It is true that for sometime the corporate leaders were emphasizing that people were their best assets, not machinery, land or money. If human intellectual capital is the primary asset, the corporate responsibility to promote the rights of the humans should become the integral philosophy of business leaders.

Good corporate governance and good business are synonymous. Good corporate governance includes sustainable business and respect for universally adopted principles of justice, human equality and transparency. Neither the Governments nor the corporate giants can shy away from the responsibility for human values. S.S. Wijeratne.

Inter school legal awareness competitions vital - NWP Governor

North Western Province Governor Tissa Balalla stressed the need for basic knowledge of law for students to grow up as law-abiding citizens.

Governor Balalla was addressing the awards ceremony of the North Western Province inter school competition on legal awareness.

He said: "I am a lawyer who is completing 50 years at the Bar. During my long practice in remote courts in Maho, Galgamuwa and Warakapola, I have come across hundreds of litigants who got involved in cases because of ignorance". He went to appreciate the provincial inter school legal awareness competitions organized by the LAC centers with the support of the UNDP, the People's Bank and private sector well-wishers.

The winners of the oratorical contest, Sanduni Methsara Wijesinghe Ekanayake from Ananda College, Chilaw (English) G.K.S.N. Gajanayake from Ibbagamuwa Central College, (Sinhala) and S. Rizla from Paragahadeniya Central College, Kurunegala (Tamil) spoke on the subject "justice and punishment" were specially commended by Governor Balalla and wished that they become legal professionals in the future".

Senior Attorney-at-Law, Kuliyapitiya, J.M. Gunatilleke welcoming the invitees which included LAC Chairman, S.S. Wijeratne, Director-General, Justice Hector S. Yapa and Kuliyapitiya Magistrate, Lanka Jayaratne stated that the Award Ceremony was the culmination of three months old competition of law related essay, poster and oratorical competitions where over 100 schools in the province participated. The Award Ceremony was graced by the Governor and the leaders of legal aid program in Sri Lanka.

The competition was co-ordinated by Kaushalya Hapuaratchchi, AAL, LAC Center, Kuliyapitiya. The Legal Aid Officers from Marawila, Chilaw, Kurunegala, Warakapola, Polgahawela and Maho formed the Organizing Committee.

Questions and Answers

Can I revoke my EPF nomination?

Question: I was employed as an Executive in a leading Company in Colombo from January 1994. I signed the EPF nomination Form 'H' nominating my sister who was not married at that time for my EPF benefits.

My sister got married in June 2000. I got married in October 2004. The Central Bank statement for my contributions came in May 2009 which is Rs. 1.5 million. My wife has seen this statement. She asked me as to my nomination. She is unhappy that I have nominated my sister. I am confused. I do not know what to do. Please advise me whether I can revoke the nomination to my sister and nominate my wife. Is it necessary to get the consent of my sister?

M.Jonathan

Wattala

Answer: This is a very simple matter. You can do revocation of nomination already done to your sister by Form 'I' and thereafter nominate your wife by Form 'J'. Your sister's consent is not necessary. She will not be informed of the revocation. Do not worry. Take it easy. Go ahead by filling forms 'I' and 'J' and make your wife happy.

Can I ask for dispute to be referred for Arbitration?

Question: I was employed in a Company in Colombo as an Assistant Accountant for 30 years. I retired on 31.12.2008 on reaching the age of 60. I was not paid the travelling allowance from January 2004 to December 2008. The Company paid in cash at the end of each year for the unutilised leave from the year 1978 onwards. No EPF was contributed on the amount paid for unutilised leave. EPF was paid on unutilised leave payment made to me on my retirement. i.e. last two years. Can I claim these two payments? If the Company does not pay can I ask for the 'dispute' to be referred for arbitration by the Minister of Labour?

M.Dole

Battaramulla

Answer: You have not claimed travelling allowance when you were in service. You have simply kept quiet. You cannot claim now. You are not entitled to payment for unutilised leave. The Law requires payment in cash only for the last two years on retirement. The Company has paid you EPF on this. You cannot claim EPF on the unutilised leave payment for the period prior to 2007. You should be grateful to your employer for making this payment from 1978 onwards even though you are not entitled to it in Law.

The issues in 'dispute' cannot be referred for arbitration as they are raised after your retirement from service. In short there is no live 'dispute'.

EPF contributions for part time employment

Question: I have been employed in a Company for the last twenty years. EPF is paid regularly. I am doing part time work for a Director of this Company. Am I entitled to EPF contributions for part time employment?

S. Ganeshan

Kotahena

Answer: Yes. The only category of part time employment which is exempted from EPF is tutorial staff of any Educational Institution. This is given in paragraph 24 of Order No 15 of Section 10(3) of the EPF Act.

Authorized deductions from salary under Shop & Office Employees Act

Question: What is authorised deduction from salary under the Shop & Office Employees Act? What is the limit of the deduction? What are the deductions other than authorised deductions?

P. Ganegoda

Kottawa

Answer: Deductions which could be made from salary are authorised deductions which should be made with the consent by the employee. Limit for deduction is 60% of total salary. Other deductions are deductions under special legislation. E.g. income tax deduction on order of Court. Consent of employee is not necessary for these deductions.

Eligibility for Gratuity

Question: Public Service Officers confirmed in service could take up employments in Government approved foreign funded Projects under ministries for a period of not exceeding Five (05) years on no- pay leave basis as per the Public Administration Circular No. 13/99 of dated 11/06/1999.

This no- pay leave period is not entitled to government pension as stipulated under the Sub Clause 16:8 in the chapter XII of the Establishment Code and Further it has been mentioned that this particular period is not considered for any promotions as specified under the sub clauses 16:9, 16:10 and 16:11 of the Same Chapter of the Establishment Code. Hence, this no- pay leave period is badly affected to one's pension as well as the seniority in the service.

I would be much grateful if you could inform whether the Public Service Officers who worked in such projects on no- pay leave basis for a period of Five (05) years uninterruptedly, are eligible for payment of gratuity under the Gratuity Act if the followings are satisfied.

* Appointments under these projects are on contract basis subjected to extend annually.

* More than fifteen (15) employees have been employed.

* Contributions are made for Employees Provident Fund (EPF) and Employees Trust Fund (ETF) from the Employer as well as the Employees.

W. K. A. S. Chandraratne

(Sent by email)

Answer: From the facts given, you are entitled to Gratuity under Sec 5(1) of the Payment of Gratuity Act No 12 of 1983. You have stated that more than (15) fifteen employees have been employed but failed to state from when? If you comply with Sec 5 (1) of the Act in this regard, you are eligible for Gratuity.

Company name

Question: I registered my Company under the new Companies Act No.07 of 2007. I want to know whether it is necessary to state the Company name in all my business letters and official publications. Your kind advice is solicited.

S. Mohideen

Nittambuwa

Answer: Yes. Under the Companies Act No 07 of 2007 every Company is required to clearly state its name and company number in all business letters, notices, official publications, bills of exchange, promissory notes, endorsements, cheques and orders for money and goods signed on its behalf (including invoices, receipts and letters of credit), all documents issued or signed which create or evidences legal obligations of the company and the company seal, if it has one. Further, the name and company number must also be clearly displayed at the Registered Office. If any company fails to state the name and company number on a document that create or evidence a legal obligation of a company, every person who issued or signed will be liable on such document to the same extent as the company if the company fails to discharge the obligation.

The only defences available to such persons would be to prove that the obligee was aware at the time the document was signed that it was incurred by the company , or court is satisfied that it would not be just and equitable to impose such liability on such persons.

Change of company name

Question: I have a Company already registered under the new Companies Act No.7 of 2007. I now wish to change its name. Is it possible to do so under the new Companies Act? I await your kind reply through your valuable Legal Aid Page.

M. Samantha - Colombo.

Answer: Yes. A Company may change its name by way of Special Resolution and the prior written approval of the Registrar. Once the Resolution is adopted, the Company must notify the Registrar of the change within ten working days.

The Registrar will then enter the new name in the register and issue an altered Certificate of Incorporation.

A change of name will not have any effect on the rights or obligations of the Company or legal proceedings existing at the time. Under Section 09 (2) of the new Companies Act, the Company must give public notice of the change of the name within the twenty working days of such change.

Land matter

Question: My mother has gifted 20 perches of land to my brother who is mentally handicapped and of unsound mind. We have no place to stay and we want to build a house in my brother's said land.

Kindly let me know the legal procedure to do this.

P. Austin

Mirigama

Answer: Regarding your matter, you will have to make an application under Section 493 of the Civil Procedure Code to appoint a suitable person as a guardian for your brother. The said application must be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in question in the action adverse to that of the minor, and that he is a fit person to be so appointed. After obtaining leave from the court you can build a house in your brother's land.

Environmental Protection Licence (EPL)

Question: I am running a small industry ( tube manufacturing and tyre retreading) and intend to expand my business. I was told by some of my friends that I should obtain an Environmental Protection Licence (EPL) from the Central Environmental Authority.

Please let me know -

(a)What is an Environmental Protection Licence (EPL)?

(b) What are the benefits of possessing of an EPL?

Your kind reply would be greatly appreciated.

M. Joseph

Thalahena

Answer: The business you have mentioned above fall within the category of activities referred to in the Schedule (PART A) of the Gazette Notification bearing No.1159/22 dated 22.11.2000

(a) An EPL is a regulatory/legal tool under the provisions of the National Environmental Act No.47 of 1980 (NEA). Section 23A states that no personal shall carry out any prescribed activity report under the authority of an EPL. In other words it is a legal authorization under certain conditions for industries/activities to discharge effluents, deposit wastes, emit smoke/gases/fumes/vapour or excessive noise/vibration into environment.

(b) The EPL holder has legal authority for the discharge of effluents, deposit wastes; emit smoke/gases/fumes/vapour, noise/vibration into the environment in accordance with the standards and criteria stipulated by the Central Environmental Authority. This will help the EPL holder to prevent or minimize the discharges and emissions into the environment from the industrial activity.

Further the EPL holder is eligible to apply for loans from the banks to carry out further improvements to the business and the possibility of having protests or objections from the neighbourhood will be reduced.

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Lost Identity Card

Question: I am 65 years old. I lost my National Identity Card. I do not have my Birth Certificate. When I applied for my Birth Certificate, I got a 'Nil Statement.' I have a photocopy of my Identity Card. I used this Identity Card number in my Bank Pass Book and other documents. Please let me know whether in the absence of my Birth Certificate, can I apply for a new Identity Card? If so, what is the procedure? Kindly advise me.

S. Jayantha

Panadura.

Answer: Yes. As you are reaching the age of 65 you can apply for your National Identity Card without a Birth Certificate. However, you have to prove by way of an affidavit stating your name, date of birth, your address, etc., with supportive documents such as your children's Birth Certificates and Grama Niladari Certificates.

When you apply for an Identity Card instead of the lost one, you have to meet the Grama Niladari and get the relevant Form (Form RPD/V/7 - printed on green colour paper or green colour letters).

The documents to be attached with the application for duplicate of lost identity cards are:-

* Certified copy of the complaint made to the police regarding the loss of the identity card.

* Birth certificate or alternative documents mentioned in the above section.

* Certificate of employment, (if employed) obtained within three months.

* Number of the lost identity Card

* Stamps to the value of Rs.15.00.

* Certificate of residence.

* Colour photographs (1 3/8" x 7/8").

* Documents to prove that the NIC number had been used.