Features | Online edition of Daily News

During the 26 year war against terrorism forced conscription of thousands of children for armed activities by the rebel groups, illegal transfer of human beings across borders for military training, procurement of agents as illegal migrants, movement of war induced Internally Displaced Persons to other countries in search of greener pastures became the order of the day.

During the relevant period, traffickers used Sri Lankan coastal points as points of exit not only for Sri Lankan illegal boat people but for many illegal transits from South Asian countries.

The police have carried out a number of pre departure raids of potential illegal migrants

Sri Lanka also evolved since 1990, as an Asian Centre for cheap unskilled migrant workers specially as domestic labour. The female migrant exodus continues irrespective of long term adverse social repercussions. Many of the migrant workers turned out to be victims of trafficking ending in virtual slavery, servitude or prostitution. During the relevant period, Sri Lanka also became one of the paedophile tourist destinations in Asia.

In a report published a few years ago, between 10,000 to 15,000 minors were available for exploitation and there were nearly 600 websites advertising the availability of minors from Sri Lanka.

The majority of child exploiters came from the developed countries that were boastful of their human rights standards. Paedophiles by definition were victims of trafficking and perpetrators deserved deterrent punishment.

The protracted bloody war which gave cover to major areas of trafficking was ended on May 18, 2009.

Law enforcement officials should now concentrate in dismantling the human trafficking structures to prevent exploitation of vulnerable human beings from trafficking by nefarious migrant and tourist agencies.

A national effort should be made to create civil consciousness against human trafficking.

The Trafficking Research Centre recently opened at the Department of Immigration in collaboration with the International Organization for Migration should organize island wide awareness programs using both the electronic and print media as well as holding grass level root meetings and street dramas.

At the legal level, Sri Lanka should implement the steps to assign to National Governments under the 1990 Migrant Workers Convention which came in force in July 2003. Sri Lanka, should as a source of migrant workers urge other human rights respecting countries to ratify the Convention. The Convention has provision against traffickers.

At national level, Sri Lanka has already enacted the amendment to the Penal Code by Act No. 16 of 2006, penalizing trafficking.

Trafficking is now an offence punishable with two years imprisonment, in the case the victim is under 18 years with 20 years imprisonment. Enactment of penal legislation is one thing but implementation is another. The police and the immigration workers should be trained and motivated.

LAC invited to draft Legal Aid Law in East Timor

The Migrant Unit of the Legal Aid Commission organized a two day lawyers training program on Human Trafficking funded by the American Solidarity Centre. Here Chairmen of the LAC S. S. Wijeratne addressing the participants at the training program. Executive Director for Human Rights and Development Kalyananda Thiranagama is also in the picture. Picture by W. H. Chandradasa

Chairman of Sri Lanka’s Legal Aid Commission S.S. Wijeratne is among the three experts invited by the Ministry of Justice, Timor-Leste to prepare a Legal Aid Law for East Timor. The other experts are from Brazil and The Philippines.

Since independence in 2002, East Timor-Leste has been assisted by international agencies to develop the necessary good governance institutions. Presently, both the international funding institutions led by the World Bank and Asian Development Bank with the active support of the UNDP focuses on developing effective legal empowerment programs as an integral part of the sustainable economic development of the new country.

Consultations are being held in the East Timorese capital Dili presided by the Ministry of Justice on September 10 and 11.

Questions and Answers

Who can become a foster parent?

Question: After the Tsunami struck Sri Lanka in December 2004, there are thousands of children who have either lost both their parents or one parent. I would like to know the general criteria to become a foster parent.

Please also let me know who cannot become a foster parent and how long is a Foster Care Order valid for? Your kind advice in this matter is solicited.

* A couple is preferable; however a single parent may be considered if it is in the interest of the child.

* There should be a 25 to 45 age difference between the foster parent(s) and the child.

* The couple should demonstrate effective parenting, marital accord and an absence of domestic violence.

* A family where there has been a recent death of a child should not be considered unless placement in such a family would be in the best interest of the child.

* Person with a history of alcoholism, drugs, physical, mental or emotional complications that would interfere with the proper upbringing of the child;

* Person with a history of maltreatment or who has been a recipient of child protection service during childhood;

* Person who has plans to proceed abroad for employment or other reason for a long period of time.

The Foster Care Order is valid for a period up to one year and can be renewed annually until the child turns 21 years old. However, there will be no need to renew the Order if the foster parent successfully applies to adopt the child or young person.

Sri Lankan citizenship

Question: I married without my parents’ consent. As soon as we got married we migrated to France. We have a child of four months (boy) born in France. My husband and I are Sri Lankans. We now wish to return to Sri Lanka with our baby. Can our child get Sri Lankan Citizenship? Please advice me.

Answer: The answer is ‘No’. If your child was born in a foreign country, he/she is not entitled to Sri Lankan Citizenship. If your child needs Sri Lankan Citizenship, you have to apply for a Citizenship Certificate through the Department of Immigration and Emigration, Citizenship Unit in Sri Lanka.

In this connection you have to inform the Sri Lankan Embassy in France that you are a Sri Lankan and your child was born in France. Then they will issue you with a Citizenship Certificate. The following documents will be required to obtain Sri Lankan Citizenship Certificate:-

(e) Declaration of the Applicant stating that she has no Citizenship of any other country except Sri Lanka.

(f) Charges payable. If the Citizenship Certificate is applied within one year from the date of birth of the child, the fee payable is Rs. 1,000. For delay of every one year Rs. 500. Citizenship Certificate could be applied only up to the age of 21 years of the child.

We would therefore advice you to apply for your child’s Citizenship within one year from the date of birth of your child.

Substitution in a Labour Tribunal case

Question: My services were terminated on 10.12.2008. I filed an action in the Labour Tribunal, Colombo against the Proprietor of a leading furniture shop in Moratuwa where I was employed from 08.04.1989. The proprietor gave evidence at the inquiry before the Labour Tribunal and his case was concluded on 10.03.2009. The case was next fixed for a date in May 2009 for me to give evidence.

The Proprietor had passed away on 25.05.2009. No contributions at all were made to the EPF and ETF. I have worked late hours daily including Saturdays and Sundays without any additional payment. I have not made a complaint to the Commissioner of Labour as I was advised not to do so until the Labour Tribunal case is concluded. I contacted the wife of the Proprietor but she is not prepared to do anything.

I am now fifty two years old with heavy family responsibilities. I am helpless. Please advise me as to what I should do.

Answer: Although the Industrial Disputes Act does not provide for substitution in a Labour Tribunal case, the Superior Courts have held that substitution could be done. You can make an application through your Attorney-at-Law or Representative to substitute the wife of the Proprietor and proceed with the case in the Labour Tribunal.

In relation to the EPF and other legal dues, you can make a complaint to the Assistant Commissioner of Labour, Colombo South, 6th Floor, Labour Secretariat, Colombo 5 who will decide the appropriate course of action.

In relation to the EPF, you can make a complaint to Enforcement Officer, ETF Board, Nawala Road, Colombo and ask for relief.

Can a defendant in a maintenance case appeal to Appeal Courts after 10 years?

Question: In a District Court, order was given to pay maintenance 10 years ago. Unsatisfied with this order, the defendant appealed to the High Courts thrice. The first appeal was dismissed. The second appeal was dismissed with costs. The third appeal to the same courts, there was a reduction of the maintenance payment. Can the defendant appeal again to the Colombo Appeal Courts after ten years?

Answer: You have no provision to make an appeal to the Appellate Court in respect of the maintenance case. According to the provisions of the Appellate Jurisdiction, the aggrieved party has the right to file an appeal to the Provincial High Court against the order of the Magistrate’s Court. Any person being aggrieved by the order of the Provincial High Court regarding the maintenance appeal, such person has to file special leave to appeal before the Supreme Court. There is no provision to make an appeal to the Court of Appeal whatsoever from the date of judgment after 10 years.

Deed lost - How to find deed number?

Question: A deed was misplaced 35 years ago. It was owned by my father. He has now expired. He did not give any information regarding the said deed. The land in question is being used illegally but there is no construction. I went to the Colombo Land Registry to find out the details about the deed. But with no success. Please help me to find out the number of the deed.

Answer: You have not mentioned where the land is situated. All the lands have been assessed by the relevant Local Authority and the owner has to pay rates to the Local Body. So please go to the relevant Local Body and go through the register and get the particulars regarding the deed and apply to the relevant Land Registry and get the certified copy of deed and encumbrance sheets, if necessary.

You have not mentioned as to who pays rates to the Local Body and whether you still go to the land and maintain the boundary premises or boundaries.

You are the legal owner of the land if you have the deed and the land entered in the assessment register as yours.

You have to find out whether the man who uses the land, as mentioned by you in your letter, objects to your entering the land. Otherwise, he can always claim prescriptive rights in his favour against you.

Payment for extra hours worked

Question: I have worked in an establishment for more than five years as a Clerk in the Accounts Department. I have now resigned from my employment as my Employer has not paid any overtime for working extra hours on week days and also for working on Saturdays and Sundays.

This has been going on for nearly three years. Can I claim my overtime before the Labour Tribunal?

Please advise me as to the correct forum where I should go to in order to claim my dues for working extra hours.

Answer: Since you have resigned from your employment, the Labour Tribunal has no jurisdiction to hear your claim.

In addition, a Labour Tribunal has no jurisdiction to hear your claim as it is a statutory due. You should lodge your claim with the Commissioner of Labour who has the power to inquire into non payment of statutory dues.

Gift of house

Question: A property of about 20 perches (in Ethul Kotte) was transferred to me in 1990 upon the death of my father.

The transfer value on the Deed was two hundred thousand rupees (Rs.200,000) in 1990.

I built a house on this property in 1996 at a cost of about one and a half million rupees. I have been told that the present market value of the property and house is about eighteen million rupees (Rs. 18,000,000). I wish to transfer this property to my son as a gift.

(2) Stamp duty is levied on the following basis having regard to the value of the property:-

The value of the property should be a reasonable amount since it is a gift. It is better for you to discuss the matter with your lawyer who should know the value of the property having regard to the location of the property.

Can employee /employer directly go to Industrial Court?

Question: I am a keen reader of your valuable Daily News Legal Aid Page. This page is very informative and very useful to the public.

I would be pleased if you could kindly let me know whether an employee/employer could directly go to an Industrial Court.

Answer: We are receiving a lot of appreciation from the public regarding our Legal Aid Page and you are one of them.

With regard to your question, the answer is “No”. Employees and/or employers do not have the right to directly apply to the Industrial Court. Only the Minister of Labour can refer matters to an Industrial Court.

Objective of Employees Trust Fund (ETF)

Question: What is the objective of the Employees Trust Fund and what is the rate of contribution? I await your kind reply.

Answer: The main objective of the Fund is to provide benefits to members during employment and upon retirement.

The Employees’ Trust Fund Board (ETFB) administers the Fund, which is under the purview of the Ministry of Finance and Planning.

The ETF Act applies, to those employed in semi-government establishments, corporations, universities, statutory bodies, private sector enterprises, self-employed and migrant workers, (it is not applicable to those pensionable government servants). These categories of employers are required to contribute to the Fund. (Except self-employed and migrant workers)

Establishments or employers defined above are required to contribute a sum equal to three per cent of the total earnings of each employee to the fund on a monthly basis.

These funds are retained in favour of the employees and invested, enabling the Fund to pay an annual interest of three per cent, which is a statutory requirement, and dividend on earnings against the outstanding balance.

Those self-employed and migrant workers could also become members of the Fund on a voluntary basis by contributing a sum equal to 3% of their monthly earnings.

However, such employees shall pay a minimum of Rs. 150/- to the fund each month.

Subject to the receipt of contributions each month on a regular basis, an employee is eligible to remain a member of the Fund.

EPF matter

Question: I am made to understand that if an employer defaults in the payment of gratuity to an employee for over one year, the employer will have to pay the employee in addition to the gratuity a surcharge of 30% of the gratuity payable and the employee is entitled to get the full amount paid as surcharge along with the gratuity.

Please advise me whether the same principle applies in the case of Employees’ Provident Fund?

Answer: In the case of EPF, if the Employer fails to contribute towards the EPF exceeding one year, the Employer will be directed to pay 50% as surcharge and not 30%.

Unlike in the case of gratuity, the employee will not be entitled to the full surcharge of 50%. The employee will be entitled to a percentage of the surcharge determined by the Monetary Board of the Central Bank.

Validity of a Sri Lankan passport

Question: I hope to travel to a few countries in the near future and have already obtained a Sri Lankan Passport. As such, please let me know whether a Sri Lankan Passport is valid for travel to any country. Your kind reply would be greatly appreciated.

Answer: A passport is valid for travel only to those countries for which a specific endorsement has been made on page 4 of the passport.

Sri Lankan passports may be made valid for travel to any country in the world except those countries to which travel may be specifically restricted by an endorsement on page 4.

General conditions regarding the issue of a passport having been satisfied, a passport may, as a general rule, be issued to any country.

If an applicant wishes to travel to any other country or countries, for which travel is not specifically restricted by instructions, those additional countries can be added to the above normal endorsement.

The endorsement of additional countries should be made only on the issuing authority being satisfied that the holder has good reason for visiting them.

An endorsement covering a large number of countries should not, as a rule, be given where the issuing authority is not satisfied that the holder is likely to travel very widely and actually needs such an endorsement or where the issuing authority has reasonable grounds to consider that some measure of restraint upon the movements of the holder is desirable.

The Issuing authority may, at his discretion, endorse a passport specifically for the countries to which the applicant contemplates immediate travel, as a general rule.

A passport should not be endorsed valid for countries which are in a state of war or where any unrest prevails or which have not been officially recognized by the Government of Sri Lanka.

List of developmental Legal Aid desks in LAC

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.

Your questions should be addressed to - Daily News Legal Aid Page, Chairman, Legal Aid Commission, No.129, Hulftsdorp Street, Colombo 12.

Curbing human trafficking