Legal Aid Commission

Electoral power of elders

Sri Lankan social justice systems continued to progress despite the 26-year-old crippling ethnic conflict. A dramatic increase of the aging population is one such phenomenon. The new development indicators of life expectancy surpassing 75 years, functional literacy exceeding 92% and infant mortality falling below 10 for 1000 births in a country with a meager per capita income of just over US$ 2000 are indeed remarkable achievements. Sri Lankans can keep their morals high in international fora when social development issues are discussed.

Sri Lankan’s 2.3 million elders form nearly 11% of our population and 20% of the voting population. Their increasing influence in the formation of the social-political agenda was seen when all the political parties in Parliament unanimously adopted the Protection of Elders Rights Act No. 9 of 2000 in Parliament.

This pioneering law in the Asian region recognized the growing elders’ role in development paradigm and the need for comprehensive social security network needed by indigent elders. The National Elders Council created under the Act has taken the needed steps to create a society for all ages including the elders.

The social dynamics of post private sector economy where families were splintered leaving the elderly who are isolated, lonely and immobile are now being addressed by the village based elders’ societies. According to the National Secretariat for Elders over 10,000, elders or Senior Citizens Committees have blossomed all over the island including in the North and East.

An important amendment to the Protection of Elders Right Act No.9 of 2000 was approved by the Cabinet as far back as on April 23, 2007 giving legal recognition to these important social organizations.

The Legal Aid Commission through its Elders Desk has supported the National Elders’ Council work by providing free legal advice to the elders and supporting district levels meetings of the Elders Societies. The societies had taken steps to address problems of elders such as loneliness and develop creative facets and engage in the service to others, specially the frail elders. Elders Societies traverse across ethnic and religious divides thus helping to develop a common elderly consciousness.

Another important amendment in the new law is legal recognition of the “Elders Identity Card”. The Ministry of Social Services started issuing the elders’ identity card for those over 65 even before the elder’s law came into being. Unlike in the developed elder friendly countries, Sri Lankan Institutions both in the private and public sectors refused to recognize the Elders “badge of honour”.

The card intended to facilitate easy services to the elderly and obtain discounts in geriatric medicine and receive increased interest income from savings are essential to our aging society. This has not happened as we do not still have a social responsible private sector in Sri Lanka.

The new amendment legalizes the elder’s identity card and provides for the Minister to make rules as to how the card could benefit the elders. Elders rights are human rights, the new amendment definitely helps at protecting elders’ human rights.

S.S.Wijeratne

National Council for Elders

LAC celebrates International Elders’ Day in Kandy

“Many international reports including a World Bank Report published a few months ago have identified Sri Lanka as the fastest aging country in South Asia.

Thus demographic revolution will affect the political outcome of future elections as serious elders issues will come to the forefront of the political agenda”, said National Elders Council Member S.S.Wijeratne addressing the Elders Conference at the District Secretariat, Kandy recently.

The meeting is one of a series of meetings celebrating International Elders Day on October 1 jointly organized by the Legal Aid Commission, Kandy District Secretariat and the National Secretariat for Elders.

The People’s Bank whose Chairman, Senior Attorney-at-Law W.Karunajeewa is an old boy of Dharmaraja College supported the program through the People’s Bank “Parinatha Savings Program”.

People’s Bank Deputy General Manager, R.M.S.B. Ratnayake emphasizing the importance of saving a nest egg during their senior age without speculating in dubious finance companies.

Many Sri Lankan elders have lost their lifetime savings by speculating with unreliable investments. The most secure saving with the People’s Bank is the Elders Account “Parinatha” which is safe, village-friendly and approachable to the village elders.

District Secretary Gotabaya Jayaratne praised the elders activities of the Village Committees in organizing social justice programs which helped the administration of the remote Kandyan villages.

Questions and Answers

How to identify ordinary mail and business mail?

Question: I am a postal clerk employed in a Mercantile Firm. I would like to know the difference between ordinary mail and business mail. Could you kindly let me know through your valuable Daily News Legal Aid Page?

Mohamed Jiffry - Colombo 10.

Answer: The under mentioned categories of letters with the maximum weight of 30 grms are included in the category of ordinary mail:-

(i) Letters of standard sizes and addressed by private names as sender’s address.

(ii) Letters bearing the return addresses of the Government Departments and Ministries (with their P.O.Box Nos. if there is any).

(iii) Letters of the Hon. Members of the Parliament and Provincial Councillors who forward their letters to local mail within the approved limit under the privilege of free postal facility.

The following categories of letters are included in the category of business mail:

(i) Letters which exceed 30 grams in weight.

(ii) Letters which bear the addresses of Private Institutions as sender’s name.

(iii) Letters enclosed in window envelopes.

(iv) Letters or mail articles enclosed in envelopes of any size with business advertisements, advertising symbols or any such impression (Letters which do not exceed 30 grams in weight enclosed ad in envelopes printed by the Postal department with advertisements are not taken into this category).

(v) A letter of any weight (inclusive of the letters less than 30 grams in weight) with a Post Box Number as the return address.

(vi) All letters and postal articles handed over to the bulk mail and business mail.

Re: payment of gratuity to apprentice in the NAB

Question: I am an Apprentice at the National Apprentice Board (NAB) for more than five years. I am aware that apprentices in companies are paid gratuity.

Please advise me whether I am entitled to gratuity under the Payment of Gratuity Act No.12 of 1983.

Ajith Kumarage - Ratmalana.

Answer: The definition of ‘workman’ includes an Apprentice. The definition of ‘employer’ means any person who employs any workman. On the basis of these two definitions an Apprentice will be covered by Payment of Gratuity Act.

Section 51 (1) of the National Apprenticeship Act No. 49 of 1971 specifies that an Apprentice undergoing training under the provisions of this Act shall be a Trainee and not a worker and the provisions of any law relating to workers shall not apply to an Apprentice.

As you are a National Apprentice you are not entitled to gratuity under the Payment of Gratuity Act No. 12 of 1983.

Entitlement to EPF?

Question: I have been employed in a Company from January 1990 onwards. The EPF is being contributed to me. I have been doing part time work in a Lawyer’s office from April 1992 onwards. I also work as a part time Teacher in an international School from January 1993 onwards.

No EPF is paid for the two part time jobs. Am I entitled to EPF? I await your kind reply.

M. Fernando - Gampaha.

Answer: You are entitled to EPF from April 1992 onwards in respect of your part time employment in the Lawyer’s office. According to paragraph (24) of order No. 13 under section 10(3) of the EPF Act, the Lawyer should have recovered from your salary 8% as your contribution to EPF. As he does not appear to have recovered 8% from your salary he has to contribute 20% from April 1992 and pay surcharge too.

According to the order referred to above, you are not entitled to EPF for your part time employment as a Teacher.

Development activities in coastal zones

Question: My friend has already bought a land in a coastal area. He now hopes to do a hotel project using the land in the coastal area. I want to clarify the following: -

(a) before he starts his project, is it necessary to get a permit from the Coast Conservation Department?

(b) how do they define the coastal zone when issuing such permits?

(c) if the construction in the coastal zone is not legal will the unauthorized constructions be removed?

B.Amarasekera - (Sent by email)

Answer: (a) The answer is ‘Yes’. In terms of Section 14 of the Coast Conservation Act No. 57 of 1981 no person shall engage in any development activity other than a prescribed development activity within the Coastal Zone except under the authority of a permit issued in that regard by the Director, Coast Conservation Department. If you need to build a house, tourist hotel, commercial building or otherwise carry out any development activity within the coastal zone, you may need a Coast Conservation permit issued by the Director, Coast Conservation Department (CCD).

Under this Act the new guidelines, regulations and procedures have been introduced after the Tsunami in December 2004.

Two types of permits are issued for development activities within the coastal zone. A permit issued by the Director CCD is referred to as a Major Permit. A permit issued by the Divisional Secretary on behalf of the Director is referred to as Minor Permit. If you need any further particulars regarding permit procedure please contact:

Coast Conservation Department
New Secretariat
Maligawatta,
Colombo 10
Sri Lanka
Fax: 2438005
Tel : 2449754
Web site: www.ccd.gov.lk

(b) The Coastal Zone is defined in the Coast Conservation Act as “the area lying within a limit of three hundred meters landward of the Mean High Water Line and a limit of two kilometres seaward of the mean Low Water Line and in the case of rivers, streams, lagoons or any other body of water connected to the sea either permanently or periodically, the landward boundary shall extend to a limit of two kilometers measured perpendicular to the straight base line drawn between the natural entrance points identified by the mean low water line thereof and shall include waters of such rivers, streams, and lagoons or any other body of water so connected to the sea”.

(c) Necessary action will be taken to remove unauthorized constructions. All development activities within the coastal zone which are constructed without obtaining a permit from the Coast Conservation Department is considered as an unauthorized construction and in compliance with the provisions of the Coast Conservation Act, the Coast Conservation Department will take necessary action to remove the unauthorized construction.

While the development activity is in progress according to a permit issued by the CCD, officers will inspect as to whether such activity conforms to the conditions laid down in the permit.

In case if the said conditions have been violated, immediate action will be taken to cancel the permit and legal action will follow.

Can a person request for state land if not reserved for public purpose?

Question: Could you please let me know if a person could request for any state land if it is not reserved for public purpose? Please also let me know the requirements to request for such state land. Your kind reply is solicited.

P.S. Namal - Puttalam.

Answer: Yes. He will be able to make a request for obtaining the ownership of the state land if he has enjoyed the land prior to 15.06.1995 and the same land would not be required for future needs.

Such request could be made to the Divisional Secretary or Deputy Land Commissioner (inter-province) in the division that he resides.

The requirements which he should fulfill in order to obtain the state land encroached.

* Encroacher should be a Sri Lankan.

* Encroacher should be 18 years of age or older.

* Encroacher and their children should not own state land.

* In case a peasant class person whose annual income is less than Rs. 72, 000 can obtain the land free of charge.

* Encroached land should be properly developed.

* If his annual income exceeds Rs. 214,000 the undeveloped value of the land should be paid to the government.

* If his annual income exceeds Rs. 214,000 he could obtain the land as lease of thirty years.

On what grounds can a person be arrested?

Question: My 27-year-old nephew was arrested by the police last week for no reason at all. I want to find out on what grounds a person can be arrested. Kindly let me know through your valuable Daily News Legal Aid Page.

P.Shanthi Kumar Colombo 15.

Answer: A person may be arrested on the following grounds:-

(a) he is suspected of having committed a criminal offence;

(b) he has failed to appear in court in response to a summons;

(c) he has been proclaimed as an offender;

(d) he has escaped or attempted to escape from lawful custody;

(e) he has obstructed a peace officer( a peace officer includes a police officer and a Grama Seva Niladhari who has been authorized in writing to carry out police functions) in the execution of his duty;

(f) he is reasonably suspected of being a deserter from the armed forces;

(g) he is found trying to conceal his presence in circumstances which give reason to believe that he is about to commit a cognizable offence.

(h) he is found to have house-breaking implements in his possession without lawful excuse;

(i) he is reasonably suspected of having committed an act abroad which would be an offence in Sri Lanka and for which he could be detained and extradited.

Further an arrested person should be told the reason for his arrest. If the arrest is by warrant he should be shown the warrant as soon as possible. A warrant must be in writing signed by a judge.

Maintainance of records by employers

Question: I work as a Manager in an Export Firm. I want to get rid of some of the records/documents which are just lying in the stores for a long period of time. I am not sure whether those records/documents will be needed or not in the future. However, before I start destroying these records, I want to find out as to -

(a) How long should an Employer maintain records

(b) What is the actionable period?

Your kind reply would be greatly appreciated.

S. Joseph - Colombo 14.

Answer: Records must be preserved for a period of four years except for service records which are required to be kept for a minimum of two years.

The actionable period for all prosecution is six years from the commission of the offence. If disputes relating to any records arise within the actionable period which is six years but after the records have been dispensed with, employers could be faced with difficulties in justifying their positions without the relevant records. It is therefore advisable to preserve records for a period of six years.

How could deceased’s property be divided under common law?

Question: Could you kindly explain how a deceased’s property is divided under the Common Law? An early reply to my question would be greatly appreciated.

Nandana Godage - Pannipitiya.

Answer: Under the Common Law, a deceased’s property could be divided in the following manner:-

If the deceased was married 1/2 of the property would be granted to the spouse and the other 1/2 to be equally divided among his/her children.

If they have no children 1/2 to the spouse and the other 1/2 to parents of the deceased in equal shares.

If the parents are not living, equal shares to the deceased’s brothers and sisters.

If only one parent is living 1/2 of 1/2 would be granted to the living parent and other 1/2 of 1/2 would be granted to brothers and sisters of the deceased equally.

‘Swarnabhoomi’ and ‘Jayabhoomi’ deeds

Question: We are interested in purchasing a property in the upcountry area.

Owners of properties in the upcountry areas (which are for sale and which we have inspected) have informed us that they are in possession of ‘Swarnabhoomi’ or ‘Jayabhoomi’ deeds in respect of their properties. We are told that it is very risky to purchase such properties and that we may not be able to have a legally executed deed of ownership of such property.

Can you please advise us whether it is legally possible to purchase a property from an ‘owner’ who has a ‘Swarnabhoomi’ or ‘Jayabhoomi’ deed in respect of the said property and whether such a deed of transfer/ownership can be registered at the Land Registry?

N.L.Ranasinghe - Maskeliya.

Answer: ‘Swarnabhoomi’ and ‘Jayabhoomi’ deeds are given under the provisions of the State Land Development Ordinance.

Under this Ordinance, the Licence is given to a person (Licencee) to develop the State land. Under the provisions of this Act, the Licencee cannot sell or mortgage or dispose this property to any other property. However, by consent of the Licencee Holder and the approval of the Divisional Secretary it can be transferred to another party to develop the said land.

In view of the said Ordinance it is not possible to purchase a property from an owner who is in possession of a ‘Swarnabhoomi’or ‘Jayabhoomi’deed.

LAC centres and telephone numbers:

Legal Aid Commission of Sri Lanka,
129, Hulftsdorp Street,
High Court Complex,
Colombo 12
Fax: 2433618
Email: [email protected]
Website: www.lawaid.org

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 031-2222221
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. Akkraipattu 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 021-2224545
29. Batticaloa 065-2225399
30. Panadura 038-2244822
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 057-2244860
45. Kantalai 060-2263091
46. Tambuttegama -
47. Mt. Lavinia 2718708
48. Tissamaharama 047-2239611
49. Baddegana -

Workshop

The Institute for the Commercial Law and Practice presents 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. The Introduction will be made by Secretary General of ICLP Arbitration Centre S.S. Wijerathne. Dr. Wickrama Weerasooria will speak on the topic ‘Bankers Obligation towards Client’. Nations Trust Bank Chief Legal officer Theja Silva will speak on the topic

‘Facilities and Collateral’ and Senior State Counsel Arjuna Obeysekera will speak on ‘Debt Recovery Laws.’ For details please contact ICLP Arbitration Centre, No. 61, Carmel Place, Colombo 3. Tel/Fax: 2346163/4 Email: iclp@eurekalk.

Judicial colloquium

The Judges Training Institute jointly with the Legal Aid Commission with support from the UNDP access to justice program would be holding a Judicial Colloquium on ICCPR Act on October 31. Chief Justice Asoka De Silva will inaugurate the Colloquium.

The International Convention on Civil and Political Rights (ICCPR Act No.56 of 2007) was enacted two years ago to complete certain gaps found in Sri Lankan Law relating to fully complying with the ICCPR Convention which Sri Lanka ratified as far back as 1981.

The full implication of this ICCPR Act has not been adequately examined or essential regulations enacted.

The proposed colloquium which would be addressed by experienced Supreme Court judges and international law experts is expected to activate this dormant legislation.