Legal Aid Commission

Ethical origin of Human Rights

The Human Rights Movement of the world did not commence on December 10, 1948, the day a much smaller UN General Assembly adopted the Universal Declaration of Human Rights (UDHR). Throughout human history, great religions and philosophers have propagated the core principles of human values, rights and dignity.

Present day Human Rights crusaders mostly from the rapaciously wealthy developed countries who are the self elected custodians of the UDHR would dominate the global thinking on human rights as gifted to the world to redeem the billions of backward people in economically impoverished countries as the dominant doctrine of human rights.

The financially fat development programs mostly administered by luxury living self elected representatives from a civil society which is virtually non visible in the rest of the rural society dominated internationally accepted new paradigm of post-colonial human rights discourse.

The doctrine like the crusades and colonization of the earlier era was ultimately intended to develop a rich dominated Human Rights regime in place of the earlier dominant British, French, Spanish, Portuguese, Dutch and American empires which also advocated the lofty idea of civilizing the infidels.

Any group or country that opposed the aggressive onslaught would be discarded into history like Afghanistan despite 3000 years of history.

In the UN General Assembly, there are now 192 member States that were once mostly colonies under the dominant western colonial countries that never exceed the original 14 or 15 influential nations in the UN.

At the time, when the Bible of Human Rights, UDHR was adopted in 1948 there were less than 58 participatory member States of the United Nations of whom 8 States abstained from voting.

The victorious powers of the Second World War II enunciated the UDHR even using the human talents of few exceptional individuals like Eleanor Roosevelt of the USA and Hubert Humphrey of Canada and Rene Cassim of France who genuinely thought victors of the bloody world war led the future of humanity on Human Right Principles.

Important countries like China or colonial countries in the African and Asian continent did not have even the chance to participate in the discussion of the so, called Universal Declaration on Human Rights, which of course was the laudable reaction to the immediate past carnage of World War II and was an important change in victors thinking of war as an instrument in inter state policy.

Thus the UDHR though doubled by the eleven advertising as universal in application it was not universal as the majority people of the world did not participate or even discuss as stakeholders. Many Black, Brown or Yellow people’s voices in dark corners were not heard.

Uneducated nations have to be educated either by diplomatic or economic strangulation or worst by invasion like in Iraq or Afghanistan, Kosovo or East Timor to bring them within the pale of docile Human Rights respecting nations.

This process denigrates humanity into poverty and blood shed which would further darken the world of the poor.

The lofty ideas of Eleanor Roosevelt and the Canadian drafters who created the UDHR in 1948 or the ideals of Jeremy Berthan during the French Revolution who ridiculed as non realistic humanitarian ideas and was discarded as the eccentric thinking of misguided souls.

Two thousand five hundred fifty years ago, Gauthama the Buddha propagated the doctrine of equality, non violence to all including to the oppressed women and reciprocating love and kindness, but the new avatars of transnational Human Rights chose to ignore not only the early Buddhist spiritual thinking and even those of other religious leaders like Jesus Christ, Prophet Mohamed (PBUH) or Zoroaster or Confucius.

In introducing Universal Human Rights to a human world, the UN Glass Buildings in Geneva and New York can never do better than be inspired by ancient religions.

Public Legal Awareness Unit

Alternative Rights Group.

Workshop

The Institute for the Commercial Law and Practice presents a workshop some aspects relating to banking for Corporate Executives, Public Officials, Bankers, Professionals & General Public. The course will be held on October 14 from 8.30 a.m. - 1.15 p.m. at the ICLP Auditorium.

Welcome Remarks and Introduction will be made by ICLP Arbitration Centre Secretary General S.S. Wijerathne.

Dr. Wickrama Weerasooria will speak on the topic ‘Bankers Obligation towards Client’.

Nations Trust Bank CEO Theja Silva will speak on the topic ‘Facilities and Collaterals’ and Senior State Counsel Arjuna Obeysekera will speak on ‘Debt Recovery Laws.’ For details please contact Ishara, ICLP Arbitration Centre, No. 61, Carmel Place, Colombo 3. Tel/Fax: 2346163/4 Email: iclp@eurekalk.

Diploma Course in Victimology

The Institute of Victimology is conducting a Diploma Course in Victimology for Police Officers, Service Personnel (Army, Navy, Air Force), Human Rights Activists, Lawyers, Probation officers, Family Counsellors, Health Aid Workers, Rural Development Workers, Law and Criminology Students and General public.

Curriculum

* Theories and concepts of Victimology, * Sociological aspect of Crime, * The Criminal Justice System, * Human Rights, Rights of Victims of Criminal Justice, * Forensic Medicine, * Counselling, * Psychological and psychiatric assessment of victims, * Prevention of Crimes, * Provisions of Law relevant to victim rights and * Research and Dissertation

Eligibility

* GCE AL OR Two years work experience in a relevant field AND

* Proficiency in the English Langauge and Computer literacy.

Lecturers: Senior Officials from the Attorney General’s Department, National and International Experts on Criminology, Victimology and Criminal Law

Duration: Six months

Time: Saturdays from 9.00 a.m. to 1.15 p.m.

Scholarships: Scholarships will be awarded to two deserving candidates

Award of Diploma Certificate: On successful completion of the course and after submitting the Dissertation, the Diploma in Victimology will be awarded.

Deadline for Application: 31st December 2009

Applications can be collected from National Centre for Victims of Crime, No. 211, Superior Court Complex, Hulftsdorp Street, Colombo 12.

For further details contact: 2391777 (Ashan/Upekha)

Questions and Answers

Payment of gratuity to driver

Question: I am working as a Director in a Private Company. I have employed a personal driver who has been working with me for nearly 20 years. I was paying his salary out of my own funds. He has informed me that he would like to retire by the end of September 2009 due to ill health. Is he entitled to get gratuity under the Payment of Gratuity Act No.12 of 1983.

G.Tissera - Battaramulla.

Answer: It is provided in Section 7 of the Payment of Gratuity Act No.12 of 1983 that -

(a) if a workman is employed as a domestic servant or as a personal chauffeur in a private household or

(b) entitled to a pension under a non contributory pension scheme.

will not qualify for any gratuity. The chauffeur concerned was paid salary out of your own money and not from the Company. In addition, he is not an employee of the Company. He will therefore not be entitled to any gratuity under the Act. If he has been a loyal worker, you are free to make an ex-gratia payment which is not a legal entitlement.

Offences for which fines can be imposed?

Question: I am the Head of a small Export Firm. Most of the employees are in the habit of coming late to work and some are in the habit of consuming alcohol during working hours. Could you please answer the following questions:-

(a) Can I punish them by imposing a fine?

(b) Could it be done without the consent of the employee?

(c) What are the offences for which fines can be imposed?

(d) What is the maximum percentage of the salary that could be deducted at any one time in respect of fines?

Francis Fernando, - Piliyandala.

Answer:

(a) You can punish them by imposing a fine for the offence committed.

(b) No fine can be imposed without the consent of the employee. In addition your Management should set up a Fund with the approval of the Commissioner General of Labour. The Fund should be used only for the benefit of the employees.

(c) Fines may be imposed for the commission or omission of the following acts -

(i) Absence from work without reasonable excuse.

(ii) Late attendance at work without reasonable excuse.

(iii) Causing damage to, or causing the loss of goods or articles belonging to the employer, such damage or loss being directly attributable to negligence, willfulness or default of the employee.

(iv) Slacking or negligence at work.

(v) Sleeping whilst on duty.

(vi) Willful failure on the part of the employee to comply with any lawful order given to him in relation to his work.

(vii) Theft of goods or articles belonging to the employer, or fraud or dishonesty in connection with the Employer, or fraud or dishonesty in connection with the Employer’s business.

(viii) Intoxication during working hours.

(ix) Willful insubordination or willful breaches of discipline.

(x) Incivility to any person who visits the Employer’s premises for the transaction of business .

(xi) Malingering

(xii) Interference with any safety devices installed in the Employer’s premises.

(xiii) Distribution or exhibition of pamphlets or posters not relating to employment insider the Employer’s premises, without the Employer’s permission

(xiv) Violation of instructions given for the maintenance of cleanliness in the Employer’s premises.

(xv) Smoking in any part of the premises where the Employer prohibits smoking.

(d) The aggregate amount of the deductions made in respect of fines at any one time should not exceed 5% of the remuneration earned by the employee during the period during which such fine was imposed.

EPF for employees on contract /commission basis

Question: I am employed in a Marketing Firm on contract basis while there are others who are employed on commission basis.

I would like to know whether we are entitled to EPF Membership? Could you please clarify our position?

M.Imran, - Kiribathgoda.

Answer: Yes. You are entitled to membership in the Employees’ Provident Fund from the very first day you are recruited. For your information any one of the following categories of employment entitles to membership in the EPF.

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.

Entitlement of annual leave during period of resignation

Question: I am working in an NGO. I have given one month’s notice to my employer stating that I am resigning from my employment with effect from July 31st, 2009. I wish to know how many days of annual leave will I be entitled to. I have already utilized seven days of my annual leave which I earned during the previous year.

M. Bastiansz, - Modera.

Answer: You will be entitled to take the balance seven days of the unutilized annual leave and one day for each month from January 2009 to July 2009, being the year of termination. In all you will be entitled to 14 days leave.

Complaints to Human Rights Commission?

Question: I would like to know -

(a) what type of a complaint can a person forward to the Human Rights Commission, and

(b) who can make a complaint?

Stanislaus Fernando, Gampaha.

Answer: With regard to question (a), the following type of complaints could be forwarded to the Human Rights Commissions:-

* Violations or imminent violations of fundamental rights guaranteed by Chapter III of the Constitution (1978).

* The following information should be included in a complaint:-

What rights have been violated.

Whose rights have been violated.

Who is responsible for the violation/s

In what manner were the rights violated.

Where and when did the violation take place.

What redress do you seek.

Complaints should be submitted within one year of the alleged infringement. However the Commission has the discretion to accept complaints that fall outside this period under well defined circumstances.

(b) The following can make a complaint to the Commission:-

* An aggrieved person/group of persons or

* A person/group of persons acting on behalf of an aggrieved person or a group of persons.

Tobacco and Alcohol Act No.27 of 2006

Question: What are the powers entrusted to the Authorized Officers under the Tobacco and Alcohol Act No.27 of 2006? Please explain through your valuable Legal Aid page.

Anton Dissanayake - Kalubowila

Answer: The Tobacco & Alcohol Act No.7 of 2006 was brought into operation on December 01, 2006. Section 16 of the Act designates Public Health Inspectors, Police and Excise Officers as Authorized Officers. The powers of the Authorized Officers are:-

(a) At any reasonable time enter any place where he believes any tobacco product or alcohol product is manufactured, prepared, preserved, packaged, exposed for sale or stored and examine any such tobacco product or alcohol product and take samples thereof and also examine anything that he believes is used for the manufacture, preparation, preservation, packaging or storing of that tobacco product or alcohol product;

(b) For the purpose of carrying out effective search operation, stop or detain any vehicle in which he believes that any tobacco product or alcohol product is being conveyed, search that vehicle and examine any tobacco product or alcohol product which is being so conveyed and take samples thereof;

(c) Open and examine any receptacle or package that he believes contains any tobacco product or alcohol product;

(d) Seize and detain for such time as may be necessary any tobacco product or alcohol product by means of, or in relation to which he believes any provision of the said Act or regulation made thereunder has been contravened.

Non payment of gratuity

Question: I am a resident of Kotahena. I was employed in a leading Company where there are over 50 employees. According to my contract of employment I am entitled to work until I reach 60 years. I reached 60 years in December 2008 after working for 30 years. After my retirement I have withdrawn my private Provident Fund and the Employees’ Trust Fund. I have been writing to my Employer for my gratuity. They have not responded to any of my letters. Please let me know whether -

(a) I am entitled to my gratuity

(b) If so, what is the basis of computation

(c) Since my employer is not responding to any of my letters what are the steps that I should take to claim my gratuity.

Furqan Mohamed - Modera

Answer

(a) Since you have worked for over five completed years, you are entitled for your gratuity in terms of the Payment of Gratuity Act No.12 of 1983. In terms of the said Act the Employer should pay your gratuity within 30 days from the date of termination.

(b) Gratuity is computed on the last salary drawn by the employee.

1/2 months salary into the number of years of service put in by the employee.

(c) If the Employer is not responding to you, you should lodge a complaint with the Commissioner of Labour against your Employer. The Commissioner of Labour will thereafter inquiry direct the Employer to deposit the amount due to you with him so that you could withdraw the same. If the Employer fails to comply with the directions of the Commissioner of Labour, the Commissioner of Labour will institute legal proceedings against the Employer in the Magistrate Court to recover the amount due as gratuity.

Arbitration award

Question: Can an Arbitration Award entered against a foreign company in Sri Lanka be enforced in the foreigner’s country?

Riyal Haniffa - Kalutara

Answer: Under the 1958 New York Convention which is ratified by the majority of countries in the world, Arbitration Awards granted in one country can be enforced in another country through the courts. The party against whom an award is made cannot escape liability as Arbitration Awards assures international enforcement jurisdiction under the 1958 New York Convention.