Legal Aid Commission

Amendment to Elders Law

Eleven years ago, on May 4, 2000, the Protection of Rights of Elders Act No 9 of 2000 was certified into law. This epoch-making piece of legislation was unique in two respects.

The law was passed unanimously in Parliament without any political party division. Non-partisan approach to the new humanitarian challenges posed by fast increasing elders cohort in Sri Lankan society called for policy cohesion.

Among the elders, there were members of all political parties, religions, ethnic groups. In fact, there are more female elders than males. The only common bond that bound them together as a single cohort is that they have completed 60 years of age.

The Elders Law conferred certain Legal Safeguards on a section of the population, the elders, thus violating the equality principle contained in Article 12 of the Sri Lankan Constitution of 1978.

Elders unlike children, disabled or women are not categorized in the Constitution attracting affirmative legislation and as such any legislations conferring benefits on elders different from other sections of the society could be challenged as unequal treatment violating fundamental rights of equality.

However, the issue was not raised in the Supreme Court during the Bill stage of the Elders Act No 9 of 2000 or 2011 Amendment .

Elders Law while creating the basic legal framework for the protection of the elders cohort estimated in 2000 to be nine percent of the population did not envisage the exponential increase of elders cohort in Sri Lanka in the ensuing years.

Sri Lanka’s dramatic increase elder’s cohort was not demographically diagnosed until the final years of the 20th century when the Elders Law was in preparation due to absence of relevant demographic studies on upcoming demographic phenomenon. The general census which could have revealed the aging profile was only conducted in 2001.

Consequently, most of the population, statistics up to 2001 were projections based on 1980 statistics and far from accurate. Ironically, even the 2001 national census was confined to 18 out of 24 districts as census could not be carried out in the conflict affected districts in the Northern and Eastern Provinces.

Upto date the fundamental anomalies in population projection in Sri Lanka have continued despite the availability of more comprehensive reports from the National Council of Elders, demographers and other multilateral lending institutions.

Oldest Old

Chronological age approach to define the older persons though controversial has now been universally adopted. The Sri Lankan law defined an elder to be a person who has passed the age of sixty years. However, most leading demographers criticize the Sri Lankan definition as inadequate. The issues associated with senior elders (over 80 years) are basically different from those of the younger elders (60-80 years) of age. The National Council of elders has so far failed to address challenges of the senior elders whose numbers are increasing rapidly.

Elders Act No 9 of 2000 adopted nearly eleven years ago has now been amended. For the past three years the National Council has proposed vital amendments to the Act which were even approved by the Cabinet in April 2008. The amendments include prevention of elders’ abuse, legal recognition of elders’ identity cards and recognizing of the grass roots backbone of elders’ empowerment program at the national level, the 12,000 village Elders Committees.

The Amended Elders Law would empower the village based Elders Committees and the Sri Lankan Elders Protection Law could be a model for the rest of Asia.

S S Wijeratne

Training program for Legal Management Assistants

The Certificate Course for Management Assistants (Legal), which provides a comprehensive training for Management Assistants serving the LAC Head Office and Regional Centres, was launched on February 12, 2011 at the Main Hall of the Sri Lanka Law College, with the participation and blessings of several distinguished guests.

This is the first time a comprehensive exposure like this is given to the Management Assistants of the LAC. The three to four month Course is funded by the UNDP.

Present at the historical occasion with LAC Chairman S S Wijeratne and Director General of the LAC Justice Hector S Yapa were, Dr W D Rodrigo - Principal of the Sri Lanka Law College and Commissioner of the LAC, Razik Zarook PC - Finance Committee Member of BASL and Representing the BASL President, M C A Azeez - Commission Member of the LAC and Sharmeela Rassool - National Project Coordinator UNDP.

Lilanthi de Silva - Secretary to the Commission, Viranthi Senaratne - Chief Accountant and the two Coordinators of the Program Chulari Hettiarachchi - Chief Legal Officer and Y A D S K Wickramasinghe - Consultant and Legal Officer Kalani Medagoda were also present.

Since its establishment in 1978 by the Law No. 27 of 1978, the Legal Aid Commission of Sri Lanka has been the sole statutory agency in ensuring equitable access to Justice and improving legal awareness.

Today, the quality of service provided by the LAC in the form of ensuring equal access to Justice and improving legal awareness among people is comprehensive with 63 Court - Based Centres Islandwide, manned by Legal Officers and Management Assistants.

The main objective of the course is to facilitate the Management Assistants carry their duties at the LAC Head Office and Regional Centres more effectively and efficiently, thereby assisting the heavily occupied Legal Officers, while improving their own career prospects. The Course content is designed to disseminate knowledge, infuse skills and inculcate attitudes for the realization of this objective.

A Continuous Performance Assessment Scheme for Management Assistants has also been introduced as part of the Training Course to encourage them use, what they learn in the Course, in their routine activities.

Over 65 participants representing distant LAC Centres such as Ampara, Mannar, Batticaloa participated in the course.

The first ever Course is offered free of charge for LAC Management Assistants.

Course material was also provided free of charge.

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.

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

Email: [email protected]
Website: www.lawaid.org
 

Questions and Answers

Telecommunications Regulatory Commission(TRC)

Question: I have a problem with my hand phone bills. I make a complaint to my service provider attaching relevant documents. But so far there is no response. What shall I do?

Gamlath Colombo

Answer: If you still feel if your complaint has not been treated in a reasonable manner or to your satisfaction, you can make the complaint to the TRCSL for further examination. You can write a letter to the Telecommunications Regulatory Commission by registered post including all the details. You can seek a relief from them. The address state as follows:

Telecommunications Regulatory Commission
TRCSL - General Contact No. 276, Elvitigala Mawatha
Colombo 08, WP, Sri Lanka

[email protected]
+94 112 689345
http://www.trc.gov.lk
Short Code 1900
Note

* Select the best service provider of your choice according to your requirements and your terms and conditions to obtain the service.

*Always be clear about the services offered to you by your service provider and terms and conditions of your service provider. (E.g. Duration required for service provision, cost, tariff plans etc.)

* Obtain a copy of your contract or service agreement from your service provider.

* Keep all the records of your complaint made. (If you made the complaint over the phone the name of the person/s you spoke to, the date. And the answer/s received etc.)

* Give your service provider a reasonable time frame to process the complaint. (Depending on the complaint.) Follow up with them over the phone if possible.

* If you have not received a response or a reasonable solution to your complaint you may appeal to higher authorities/committees formed by the service provider to solve complaints.

Legal aid for bail

Question: My husband was addicted to heroin and was arrested and is on bail. However, while being on bail, he defaulted to appear in court for his case as he fell ill. Subsequently, the bail was cancelled and he is in remand. Please advise me what to do?

Liwera Mahara

Answer: You could make an application for bail with the assistance of the Legal Aid Commission. Please obtain the certified copies of the B Reports together with the journal entries.

You must also have original documents pertaining to his illness. It is very important that a person should strictly observe bail conditions. If you need any further assistance, please call over at our Legal Aid Commission Head Office (Prisons Unit) at No.129, Hulftsdorp Street, High Court Complex, Colombo 12. We have a separate development desk for help prisoners at the legal aid commission .

Copy of marriage certificate

Question: I am a Sri Lankan. I met a Sri Lankan lady in Germany and got married at the Sri Lankan Embassy in Germany. I would like to know whether we could get a certified copy of our Marriage Certificate. Please advise us.

Subasinghe Germany

Answer: If you want to get a certified copy of your Marriage Certificate you can get it from the Central Record Room, Maligawatte, Colombo 10.

Otherwise, you can fill an application ( you can download application form-Registrar General Department website -http://www.rgd.gov.lk -Form B121 ) and send it to the above address together with a self- addressed stamped envelope. Then they will post it to you.

Accident in workplace?

Question: Please let me know -

(a) if an accident occurs in a workplace; or
(b) if the environment in the workplace is not safe, where should we report? Your kind reply would be greatly appreciated.

Shanaka Tiseera Marawila

Answer: All such accidents and dangerous occurrences in workplaces could be reported to the following address:- Commissioner of Labour (Industrial Safety) and Chief Factory Inspecting Engineer,

Industrial Safety Division,
Department of Labour,
No.97, Jawatta Road,
Colombo 5.
Tel.: 011-2508783
Fax: 011-2508772
Email: [email protected]
The Industrial Safety Division of the Department of Labour renders the following services:-

* Investigate fatal and serious accidents at workplaces and prevent reoccurrences.

* Inspect workplaces on safety, health and welfare to ensure the compliance with the Factories Ordinance of Sri Lanka.

* Investigate the complaints by workers and trade unions.

* Inspection of high risk machinery at workplaces.

* Conduct safety awareness programs to employers and employees.

* Execute legal action on the contraventions of Factories Ordinance.

Sri Lankan citizenship

Question: I have a child who was born out side Sri Lanka. I wish to get a Sri Lankan Citizenship for my child.

Please let me know if it is possible to get this done in Sri Lanka? Also kindly let me know the documents that are needed to register a child born outside Sri Lanka. I await your kind reply.

Nawimana Mahawewa

Answer: You can register your child’s birth in Sri Lanka under the Citizenship Act, Section 5(2).First you have to get the Consular Birth Certificate of your child. (If you register your child’s birth at the Sri Lankan embassy in your country or Central record room in Sri Lanka. They will issue you consular birth certificate) After obtaining Consular Birth Certificate ,you have to go to the Citizenship Unit 3rd floor of the Department of Emigration and Immigration at Ananda Coomaraswamy Mawatha, Punchi Borella, Borella and get the application form.

The application Form should be duly completed and submitted to the relevant section of the Department. The following documents have to be submitted to the Department along with your application:-

1 Application
2 Overseas Birth Certificate of the child
3 Consular Birth Certificate
4 Birth Certificate of parents
5 If the applicant is a Sri Lankan citizen by registration, the relevant certificate
6 Parents’ Marriage Certificate
7 Parents’ travel documents at the time of child’s birth, (If the parent’s are refugees, Sri Lanka Refugee the Divisional Secretary and any other supporting documents.)
8 Declaration that the applicant (father/mother) has not acquired citizenship of a country other than Sri Lanka at the time of child’s birth.

Birth Registration fee:

For application made within prescribed period (one year) - Rs (SL)5,000, Rs (SL) 500 should be paid for each delayed year.

If the documents referred to above are submitted without the originals, those documents should have been duly attested by the Sri Lankan Mission or Consulate of the country of domicile.

Note -

If any child is born outside Sri Lanka and has been registered at the Sri Lankan Embassy in that country under the Section 5 (2) of the Citizenship Act, the child is entitled to have citizenship in both countries until the age of 21 years. Thereafter he has to decide which citizenship he prefers.

Fundamental rights

Question: Can a Fundamental Rights case be filed in the Supreme Court after one month?

Please advise me.

Aruna Maiyanganaya

Answer: Article 17 read with Article 126 of the Constitution clearly states that the time limit is one month from the date of violation. Therefore such an action cannot be sustained in the Supreme Court if filed after one month. However, if one is prevented or incapacitated from invoking the fundamental rights jurisdiction- e.g. incarcerated or hospitalized, then one month will not begin to run until such is removed.

If you are in a difficulty to file papers within one month, it is advisable to write a letter stating the facts of your case to the Chief Justice. The letter should be sent by registered post. (Please Keep a copy with you ).

The address is as follows
Honourable Chief Justice,
Supreme Court Complex,
Colombo 12

Borrower defaults instalment payments

Question: If a borrower defaults any loan instalment, are the guarantors liable to repay loans to the bank? Please advise us.

Sadun Akalanka - Kandy

Answer: Yes, they are liable. According to the Debt Recovery (Special Provisions) Act No 2 of 1990 and its amendments No 9 of 1994, the Bank has the power to recover the money from the surety when the borrower defaults payment. Section 2 (1) states as follows:

A lending Institution may subject to the provisions of sub-section (2) recover debt due to it by an action instituted in terms of the procedure laid down by this Act, in the District Court within the local limits of whose jurisdiction -

(a) a party defendant resides; or
(b) the cause of action arises; or
(c) the contract sought to be enforced was made....etc..

You should be aware that when you are signing as a guarantor to a loan, you are legally bound to pay the loan if defaulted by the borrower.

Trade mark

Question: Is it necessary to register Trade mark in Sri Lanka? Could you kindly explain the procedure in detail?

Rajendra Sent by email

Answer: Registration under the Sri Lankan Intellectual Property Act No. 36 of 2003 grants Statutory Protection to Trade and Service Marks.

It must be emphasized that prior user of the mark in the home country or in Sri Lanka is not a pre-requisite for registration.

Intellectual Property Associates will assist you to secure trade and service mark rights in Sri Lanka. With regard to registration of a brand logo/trade mark, first of all, you have to visit the National Intellectual Property Office in Sri Lanka and obtain the Classification copy. This copy will contain all the classification (Class I and Class II).

After selecting the class of your trade mark, you have to go through the public search at the Intellectual Property Office.

After finishing the public search, you can collect the application form. All information is given in that form. If it is a Company or Partnership trade mark you have to pay Rs 3,450 as registration fee. If it is an individual trade mark you have to pay Rs 1,500. The Office is open from 9.00 am to 3.00 pm. Search fee per day is Rs 150.

An application for registration of a trade or service mark must be made to the Director-General of Intellectual Property in Colombo, in the prescribed form and must contain -

1. A request for the registration of the mark.

2. The name, address and description of the Applicant, and if he is resident outside Sri Lanka a postal address for service in Sri Lanka.

3. Five copies of a representation of the mark.

4. The goods or services for which registration is sought under the International Classification.

5. The prescribed application fee.

6. Where the Application is filed by an Agent it should be accompanied by a Power of Attorney. This document need not be notarialized or legalized.

All Applications are searched and examined in the order of filing by the National Intellectual Property Office (NIPO) for registrability. If acceptable the Application is published in the Government Gazette and left open for a period of three months for public scrutiny and third party Opposition if any.

If opposed a hearing will be held at NIPO after the filing of Written Submissions and any available evidence and the fate of the application would be then determined.

If there is no such opposition filed NIPO will proceed to register the Mark absolutely or subject to any conditions as the Hearings Officer shall deem fit.

According to the Sri Lankan Law -

A trade Mark is a word, phrase, symbol or design, or combination thereof, which identifies and distinguishes the source of the goods or services of one party from those of others.

A service mark is closely related, to a trade mark and serves to identify and distinguish the sources of services rather than products.

Certification marks are used to certify that goods or services of others have certain characteristics. Collective marks are used to indicate membership in an organization or to indicate that goods or services are produced or authorized by an organization

Contact Information:

National Intellectual Property Office of Sri Lanka

‘Samagam Medura’, 3rd Floor,
400, D.R. Wijayawardana Mawatha,
Colombo 10.
Telephone: +94 11 268 9368
Fax: +94 11 268 9367
E-mail: [email protected]

Maintenance for elders

Question: We are getting maintenance from our children under the Elders Law Act No 9 of 2000. Please let me know the duration of orders for Maintenance.

Senior Citizen Colombo

Answer: Under the Elders’ Law Act No 9 of 2000 - Section 29 states

(1) Except where an order for maintenance is expressed to be for any shorter period or where any such order has been rescinded, a maintenance order shall expire-

a) If the maintenance was unsecured, on the death of the applicant or the respondent, whichever is the earlier;

b) If the maintenance was secured, on the death of the applicant.

(2) Where a maintenance order was made against more than one respondent, the death of a respondent shall not affect the liability of the other respondents to pay maintenance to the applicant.

(3) The applicant may apply to the Board to re-apportion the liability among the surviving respondents on the death of a respondent.

You will therefore be entitled to receive maintenance until death.