Features | Online edition of Daily News

Entry of Republican Party candidate, 72 year old John McCain in the US Presidential Race sparked a healthy debate on aging. Unlike in Sri Lanka, USA does not have a rigid law on aging or retirement. In any event no age limit has been stipulated for politicians to retire.

In USA, even the Judges of the Supreme Court have no legal stipulation for retirement technically. They can hold their office until death.

However, many US Supreme Court Judges voluntarily retire when they are feeble in mind and body with declining ability to perform the onerous task of judging at apex level.

In Sri Lanka, under the Constitution, Supreme Court Judges automatically retire at 65. But many retired Judges work into their 80’s mostly in Arbitration.

Arguments are raised in USA whether at 72, a person could be an effective President.

The Legal Aid Commission (LAC) and the Equal Access to Justice Project (EA2JP) under National Languages and Social Integration Ministry launched the year 2010 Prison Program relating to Bail for Remandees at the Welikada Prison recently. EA2JP project is funded by the UNDP. This is a continuation of the program that commenced in 2008 and currently covers nine prisons - Welikada, Magazine, Wariyapola, Kegalle, Kalutara, Batticaloa, Jaffna, Trincomalee and Moneragala respectively. Here LAC Consultant and lawyer Chulari Hettiarachchi and three panel lawyers participating in the program.

The opinion is divided on the issue. Those who are on the side of effective aging cite the example of late President Ronald Reagan who won his first Presidential election just prior to 70 and the second election at 74 years of age.

If John McCain was elected would he have been the oldest elected Executive President of the world? The Answer is ‘No’. A Sri Lankan had already become the oldest elected Executive President in the world.

Sri Lanka’s first President, late J R Jayewardene was elected in the 1977 election as the Prime Minister at the age of 71 years and constitutionally converted himself to be the Executive President in 1978.

His real election to the post of Executive President was held in 1982 when he was 76 years of age. Other than ailing monarchs and dictators no human being had been elected as an Executive President at the age of 76 by the people of a country.

These examples were cited to support the premise that agile and flexible minds age differently. Sri Lankan Protection of the Rights of the Elders Act No.9 of 2000 fixed the age of 60 as the age qualifying to be an elder.

This was strictly for legal purposes where rights and duties would devolve on elders on the basis of the cut off age. Despite the retirement age of 60, many Government Ministers accommodate Consultants well into their 60s. Given Sri Lanka’s demographic profile utilizing the elders in developmental process is a salutary trend.

Aging leads to decline in mind and body that cannot be stopped. However, latest break through in geriatric research has disclosed with proper mental exercise healthy aging can be prolonged.

In 2007, Harvard University Research Scientists demonstrated that by constant brain exercise or thinking memory retrival of 75 year old could be developed to equate those of young adults.

The brain operates like the chicken wings ‘use it or lose it’. It is the duty of National Council of Elders to educate our two million elders to engage in regular mental exercises to remain productive for longer periods of time.

Legal Aid and Legal Empowerment Volunteers

“I chose to be a Legal Empowerment Volunteer because I thought it would be a good foundation for my future career. Now I realise it was the best step I have taken in my life.” KMSUL Sumathipala, Legal Empowerment Volunteer, of Chilaw said.

The Legal Empowerment Volunteers (LEV) program is a joint initiative between VOICE, UNV, VSO and Legal Aid Commission (LAC) of Sri Lanka. LEV believes that the mobilization of volunteers significantly advances the legal empowerment of disadvantaged communities. LEV enables Law and Sociology students from Sri Lankan universities to serve as volunteers with Regional Centres of the LAC.

LEV’s main objective is progress in legal empowerment of selected target groups including women, children, people with disabilities, elders, internally displaced people, migrant workers and their families.

Additionally LEV is a significant opportunity for a volunteer’s own personal and professional development; as volunteers promote the rights of disadvantaged sections of society, they strengthen their own understanding of particular communities and the law.

The LEV scheme expects to strengthen future professionals’ commitment to legal empowerment and community engagement. If brought to scale and sustained over a period of time, this project could bring about lasting social changes among both the recipients and providers of legal aid.

The LEV scheme began in October 2008 and has had two batches of volunteers in 16 locations including Kandy, Anuradhapura, Chilaw, Batticaloa, Kalmunai, Balapitya, Ratnapura and Colombo.

In the short-time period of 300 hours, volunteers provide one-to-one advice to clients and arrange Awareness Programs for disadvantaged groups. Prior to this, volunteers receive training on laws and practical skills relevant to working with legal aid clients.

It is recognised that ‘ignorance of the law, is not an excuse’, therefore LEV aims to make a small step to address this by taking legal aid to people’s doorsteps.

For example, the first batch of nearly 20 volunteers conducted research into the needs of previously hard-to-reach communities. The second batch of 21 volunteers conducted Awareness Programs to raise these communities’ awareness of their rights and privileges.

As a result of Legal Empowerment Volunteers, LAC has had a chance to reach the most marginalized people, identify their problems and help them seek solutions.

LEV recognizes the importance of understanding the reasons why people need legal aid. As well as raising a community’s awareness of their legal rights, volunteers have provided counseling to individuals.

By recruiting sociology and law students, LEV addresses legal and social aspects of community development.

“Volunteerism which is the basis of all great movements is expected to help Sri Lankans to develop the level of legal awareness to be effective stake holders in the development of new Sri Lanka”.

Bar Association of Sri Lanka - Executive Committee members 2010/2011

President: Shibly Aziz,PC
Deputy President: Rohan Sahabandu
Secretary: Mahinda B.K. Lokuge
Treasurer: Athula Perera
Assistant Secretary Chathura Galhena

Committee Members: W. Dayaratne, Sunil D.B. Abeyratne, Ajith Pathirana, Anoma Gunathilaka, Anura Meddegoda, K.S. Ratnavel, M. Razik Zarook,PC, Thusitha Gunasekara, Tivanka Ekaratne, J.M. Coswatte, Sandya Wickramasinghe, K. Anura Deshapriya, J. Mohamed Laheer, Sweeney Perera, Kamal Goonesinghe, Hussain Farooq, Berney Alwis, Anton Punithanayagam, Indrajith Amarasekara, Indrani Fernando, Lal Wijenayake, Chintha Balalle,

[Questions and Answers]

EPF membership contributions claim

Question: I was employed in an advertising agency on an open-ended contract basis with a consolidated salary of Rs 30,000 a month. I quit the post for alternate employment. I now understand that I was entitled to EPF membership contributions from the employer and deductions from my salary towards the fund. I was however not informed of these rights and obligations regarding EPF benefits, by that Employer.

My current Employer has not resorted to any such deception and though I am 63-years-old, has made deductions from my emoluments and remitted them along with his contributions to the EPF Department of the Central bank.

Is it possible for me to hold my previous employer responsible for being in default legally in not facilitating EPF entitlements to me while I was employed there - and is it possible for me to claim the monies he should have contributed to a fund in my name at the EPF Department?

It will work out to only around Rs 30,000 plus interest, but as I require half that amount monthly for treatment of a serious hearty disease, it will be a considerable relief to me financially. How do I get about making my claim? It is now almost ten months since I left employment under that Employer.

Answer: Yes - You can hold your previous Employer for default of EPF contributions. There is no time limit to claim EPF. You should therefore make a complaint to the Labour Commissioner with regard to your contribution towards the EPF giving the name of the Employer and the period of employment. The Commissioner will hold an inquiry in response to your complaint and direct the Employer to deposit 20 percent of your salary towards the fund along with a surcharge.

If the period exceeds one year the surcharge would be 50 percent of the total amount due.

Community based correction orders

Question: Please let me know if it is an offence if you fail to comply with community based correction orders and its consequences? Your kind reply would be greatly appreciated.

Answer: The Community Based Corrections Act No. 46 of 1999 provides for the imposition of Community Based Corrections Orders (CBCO’s) by Court in lieu of sentences of imprisonment; and for the appointment of Community Based Corrections Commissioner and for matters connected therewith and incidental thereto.

A CBCO is an Order made by Court which requires an offender to comply with certain conditions stipulated therein and may include a condition requiring him to perform unpaid community work.

Under the Act - Section 14. (1) Any offender who fails without reasonable cause, to comply with any condition of a community based correction order shall be guilty of an offence under this Act and shall be liable, on conviction after summary trial, to a fine not exceeding rupees 5,000.

(2) Where a person commits an offence under subsection (1) the Commissioner shall institute proceedings in respect of that offence by making a written report to the Court which entered the community based correction order in relation to which the default is alleged to have been made, to the effect that the person specified in the report has failed to comply with the conditions of the order specified in the report.

(3) Upon the making of a written report to it under subsection (2) in respect of an offence under subsection (1) the Court may issue summons or warrant of arrest on the offender and proceed to try such offence in the manner provided by the Code of Criminal Procedure Act No. 15 of 1979 for the trial of offences summarily.

(4) Upon the conviction of any person for an offence under subsection (1) the court may -

(a) vary the community based correction order in respect of which the default was made;

(5) Upon the cancellation of community based correction order, the Court may subject to the provisions of subsection (6) deal with the offender for the offence or offences in respect of which the order was entered in any manner in which the Court could have dealt with the offender had it just found him or her guilty of that offence.

(6) In dealing with an offender following the cancellation of a community based correction order, the Court shall have regard to the extent to which the offender had complied with the conditions of the order before its cancellation.

If you need further information contact - Community Correction Board, No. 211, Hulftsdorp Street, Colombo 12.

Parate Execution and third party mortgages

Answer: Parate Execution is one of the common most means of money recovery employed by banks in Sri Lanka, where immovable property has been hypothecated to banks as security for a banking facility.

In essence, Parate Execution is the right of the mortgage to sell the mortgaged property without intervention of Courts, that is to say extra-judicially. Parate Execution was first introduced to Sri Lanka by statutes, whereby the State Mortgage and Investment Bank, the People’s Bank, the Bank of Ceylon, the National Development Bank and the Housing Development and Finance Corporation, as well as Regional Rural Development Banks were granted the power to recover monies lent by them by way of Parate Execution.

This power was granted by the respective statutes that established these banks. The Courts in the past have considered these statutory rights of Parate Execution as harsh and deplorable.

Subsequently, by the Recovery of Loans by banks (Special Provisions) Act No.4 of 1990 (as amended by Act No.24 of 1995), all licensed commercial banks within the meaning of the Banking Act No.30 of 1988, the Development Finance Corporation of Ceylon (DFCC) and the National Savings Bank were bestowed the power of recovering monies by way of Parate Execution.

The power granted by statute to banks to auction immovable property by way of Parate Execution to recover the monies due under banking facilities granted to its customers was consistently upheld by the Courts of Sri Lanka. Moreover, in the past, Courts have unquestioningly accepted that banks are entitled to sell property mortgaged to them by way of Parate Execution, even though the said properties were mortgaged by persons other than the borrower.

Testamentary case

Question: I am one of the heirs of the properties belonging to my mother valuing about Rs 5 million situated in Central Province and Western Province.

My mother passed away in 2006 without leaving a Last Will. Due to lack of legal knowledge and no disputes among the heirs we failed to take action up to now to move for a testamentary case in order to obtain legal ownership of the properties.

What is the possibility of transferring these properties among the heirs? Please let me know the correct method to be followed.

Answer: Under the Civil Procedure Code - Section 525 when any person shall die in Sri Lanka without leaving a will, it shall be the duty of the widow, widower, or next of kin of such person, if such person shall have left property in Sri Lanka amounting to or exceeding in value five hundred thousand rupees, within one month of the date of his death to report such death to the District Court of the district in which he shall have so died, and at the same time to make oath or affirmation or produce an affidavit verifying the time and place of such death and stating if such is the fact, that the intestate has left property within the jurisdiction of that or any other and in that event what court and the nature and value of such property.

You can file action in any district court falling within the two provinces where the land is situated. According to your question you have already passed one month period but you can file a testamentary case explaining the reason for the delay in filing a court case. Each one can get a clear title of the land.

Registration of logo

Question: I am hoping to start up a business in ready-made garments and open a dress boutique closer to the area where I am residing. I have already installed my nameboard with the logo in my business premises. My business has been registered under the Companies Act No.7 of 2007. My question is whether I have to register the logo as well? Please advise.

Answer: You have to visit the National Intellectual Property Office (NIPO) and do a public search with regard to your logo. Thereafter you have to get the Application Form from the said Office and duly fill the same.

If your logo is a coloured one, you have to submit six colour print outs or logos affixed in A4 papers. If you decide to register your logo under the Company name you have to pay Rs 3,450 as registration fees. If you decide to register it as individual you have to pay Rs 1,150 as registration fees. Please note that if you intend to register your logo under the Company name, you have to submit the photocopy of the Company Registration Certificate. The address of the NIPO is given below;

Exempt from EPF

(2) A person who is a partner in any partnership business in respect of his partnership.

(3) Any employment in any work which is usually performed by the day or by the job or by the journey.

EPF Entitlement

Question: I’m employed as a temporary priest in a Hindu temple in Chilaw where the number of employees vary from time to time. Am I entitled to EPF?

Answer: You have not stated the number of employees. Order No. 15 published in Government Gazette No. 653/16 of March 14, 1991 specifies that from 01-04-1991 employment in the service of any charitable institution maintained solely for the purpose of religious worship or social service being an institution or organisation employing ten employees or more is liable to contribute EPF.

Liability to contribute to ETF

Question: I’m employed as an Accounts Clerk in a garment factory in Panadura from 21.05.1970. Please advise to me as to liability to contribute to ETF?

Answer: ETF was established by the Employees Trust Fund Act No. 46 of 1980. Liability to contribute to the Fund Commenced as follows-

Maintenance case

Question: My husband ignores me and neglects to maintain me and my children. I have now decided to file a maintenance case. However I am unable to do so because the Marriage Certificate is under the custody of my husband.

I want to know whether I could file a maintenance case without the Marriage Certificate. Your early reply would be greatly appreciated.

Answer: If you are keen to file a maintenance case, you must first obtain a certified copy of the Marriage Certificate. Without the Marriage Certificate, you are unable to prove that you are married. If you know the date and place of marriage, you can apply for a certified copy of your Marriage Certificate from the Divisional Secretary’s Office where your marriage took place.

Change of residential address

Question: An expatriate Director of a foreign company registered in Sri Lanka who had a permanent place of residence locally has decided to operate from his own country with periodic visits to Sri Lanka. On his visits to Sri Lanka, he will be at the same residential address as earlier.

Will this arrangement be treated as a change of residential address of a Director that needs to be notified to the Registrar of Companies?

Answer: Going through your question, we assume that your Company has been registered in Sri Lanka. Generally if a Director of the Company has changed his normal residential address, such change of address should be submitted to the Registrar of the Companies.

LEGAL AID COMMISSION

Aging productively