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Saturday, 27 August 2011

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Rise of corporate and decline of philanthropy

During the past few decades, there had been a remarkable decline in individual enterprise and a definitive dominance of corporate economic control.

The Companies Act of 2007 have provided a legal infrastructure for the rapid incorporation of Business as well as non profit enterprise. Consequently, both profit oriented business and non profit social and humanitarian enterprises have been incorporated as companies and are supervised by the Registrar of companies. The new developments have weakened the growth of non-profit philanthropic enterprise which was a hall-mark of the spirit of individual enterprise of the 20th century Sri Lanka.

Legal Aid Commission member M C Abdul Azeez addressing the gathering at the opening of the Potuvil Legal Aid Centre.

Twentieth century Capital enterprise led by individual entrepreneurs and business families in contradiction to incorporated companies or legal persons have displayed greater commitment to philanthropy. Many of 19th and early 20th century business leaders have contributed to charitable endeavours to provide protection to vulnerable segments of society such as children, women the handicapped or the illiterate.

Thus many of last century’s wealthy were in the forefront to support the efforts of the government by donating hospitals, schools and eldercare homes for the aged. When you examine the names of many hospital wards and schools, they have been the beneficiaries of philanthropy and social responsibility.

However, with the emergence of the incorporated companies replacing individual and family enterprise, the social commitment displayed by individuals and families have significantly declined. Companies are legal persons and are governed by rules which have restricted philanthropic traits associated with early individual entrepreneurs.

The corporate bodies are legal persons and they have no hearts. They are only guided by profit motive and the desire to enhance profits from year to year.

The chairman or the chief executive of a corporate body have to work within the company rules and resolutions and has little leeway in utilizing the company assets for philanthropic purposes. In order to overcome this inherent humanitarian limitations of the corporate persons, the doctrine of social responsibility have been developed. Even though, US billionaires Bill Gates and Warren Buffet are the world’s leading practitioners of corporate social responsibility, these humanitarian practices have not substantially influenced small economies like that of Sri Lanka.

The corporate enterprises are more concerned about the bottom line and enhanced profits than social responsibilities.

S.S. Wijeratne

New Legal Aid Centres in Wariyapola and Kekirawa

The Legal Aid Commission will be opening the 64th and 65th Legal Aid centres in the Wariyapola and Kekirawa Court Complexes on September 2, 2011. The Ministry of Justice completed the Legal Aid Centre buildings last month and the LAC equipped the offices with the computers and telecommunication facilities. LAC Chairman S.S. Wijeratne and Director General Justice Hector Yapa along with senior Consultant Justice Nissanka Udalagama will participate in the inauguration ceremonies with the respective Judges and provisional officials.

Attorney-at-Law Ms. Priyangika Attanayake and Attorney-at -Law Ms. Janani Wijetunga will be the Legal Officers in-charge of the Wariyapola and Kekirawa Legal Aid centres respectfully.

Inauguration of Para-Legal Training Programme

National Languages and Social Integration Minister, Vasudeva Nanayakkara will be inaugurating the second training programme for Legal Assistants to be held at the Sri Lanka Law College at 9 am today.

The first batch of certified Legal Assistants are serving in Legal Aid branches through out the island.

The new batch of Para-Legal’s will be National Integration Promotion Officers in the provinces after the completion of the certificate programme.

ICLP scholarships

The Institute for the Development of Commercial Law and Practice calls for applications from suitable candidates for the K C Kamalasabayson Scholarship and Chandra Wijenaike Founder Scholarship.

The two scholarships will be awarded in the memory of two gentlemen who have rendered invaluable services to ICLP Arbitration Centre. Late K C Kamalasabayson, PC was one of the Directors of ICLP Council of Management and a Member of the Board of ICLP Arbitration Centre.

Late Chandra Wijenaike who passed away recently was the first Chairman of the ICLP Arbitration Centre who took initiatives to develop the ICLP Arbitation Centre with the support of Business Community to cater to the dispute resolution in private sector.

The selection for scholarships will be done by the institute basically on merit basis and the awardees will be offered the Course which is valued at Rs 55,000.

Applicants should be from law, construction or any other disciplines relating to ADR. Undergraduates, Apprentices are also encouraged to apply. Few half scholarships will be available for deserving professionals.

Duly completed applications with the details such as, age, academic qualifications, present occupation, etc should reach the Course Registrar, 61, Carmel Road, Colombo 3 on or before September 30, 2011.

The course is scheduled to commence on October 15, 2011.

Voet Inn AGM, dinner

The Annual General Meeting of Voet Inn Association will be held at 7.30 pm today at the Hotel Samudra (Ceylon Hotel School premises) at No. 78, Galle Road, Colombo 03. Members of the Voet Inn Association are invited to attend the A.G.M. which will be followed by a fellowship dinner.

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QUESTIONS AND ANSWERS

Gratuity matter

Question: I commenced employment as a motor mechanic at a factory in Piliyandala at the age of 43. According to my letter of appointment, the age of retirement is 50. I reached the age of retirement - 50, on 20.12.2006.

I was not retired, but simply allowed to continue in employment up to 54 years. I did not ask for extension of service. I was not issued any letter extending my service. On 10.04.2011, I was issued notice of retirement and asked to leave employment immediately.

I was paid gratuity for 10 years service but paid a month’s salary in lieu of notice although my letter of appointment provides for one month’s notice or payment in lieu thereof.

I have made a complaint to Commissioner of Labour Termination Division, Colombo 5. The Company’s position is that I was retired and I cannot claim anything . Please advise me.

Weerakoon,
Mattegoda.

Answer: The company has violated Section (02) and Section 3(1) (C) of the Termination Act. You were not retired on reaching 50 years, as per letter of appointment. Notice given on 10.04.2011 when you were 54 years old cannot be taken as retirement. Section 3 (1) (C) specifies that termination of employment could be effected by way of retirement if any contract of employment where the age of retirement is expressly stipulated.

Your age of retirement is stipulated as 50. You were not retired at 50 you have been unjustifiably terminated contrary to provisions of Termination Act.

You are entitled to compensation of 22.5 months salary according to the formula published in the gazette extraordinary No. 1384/07 of 15 March 2005.

Contract of employment

Question: What are the types or categories of contract of employment?

Chula,
Galle.

Answer: The main types or categories are as follows.

1. Casual, 2. Temporary, 3. Monthly contract, 4. Fixed term contract, 5. Probationer, 6. Seasonal contract, 7. Apprentice and 8. Trainee.

Termination of employment

Question: I was employed as an Accountant at a company in Pettah from June 5, 1995. My employment was terminated on 10.01.2010 without a domestic inquiry on the charge of failure to keep and maintain records properly.

I made a complaint to Assistant Commissioner of Labour Colombo North. The Assistant Commissioner of Labour convened three conferences to resolve the dispute. On 31.05.2010 he advised me to make an application to Labour Tribunal within six months from the date of termination of my employment. I filed an application in Labour Tribunal Colombo on 24.06.2010. The Minister of Labour has referred in April 2011 to Arbitration when my application was pending before Labour Tribunal. The issues referred to Arbitration are as follows:

(i) Whether termination of employment is justified (ii) Whether gratuity and bonus for the year 2009 should be paid.

On an application made by my employer the Labour Tribunal has dismissed my application in accordance with Section 31 (B) (3) of the Industrial Disputes Act.

A preliminary Legal Objection has now been raised by my employer before the Arbitrator that the reference to Arbitration by the Minister when an application was pending before a Labour Tribunal is bad in Law and it amounts to infringement and violation of the principle of independence of Judiciary enshrined in article 116 of the constitution which is paramount law.

I am now sandwiched between the devil and deep blue sea. It would appear that I will not be able to obtain any relief. Please advise me.

Chandradasa,
Colombo.

Answer: This is a complicated question of law which calls for in depth study of the law. This preliminary legal objection is based on the judgment of Court of Appeal in Upali Newspapers Ltd. vs Eksath Kamkaru Samithiya and three others CA 615/96 decided on 19.03.99. This Judgment was affirmed by the Supreme Court.

This judgment is contrary to the previous Supreme Court judgment in Ceylon Printers Case 31/88 scm 11/11/88 which is as follows: “It is significant that Section 31 B of the Act does not purport to confer exclusive Jurisdiction in this respect and that there is not fetter against the reference of even an individual dispute connected with termination of service during the pendency of an application before a Labour Tribunal in respect of such dispute.”

The Ceylon Printers judgment has not been considered by Court of Appeal in Upali Newspapers Ltd case. Despite the judgment in Upali Newspapers Ltd case, the minister continues to refer dispute to arbitration.

It is appropriate to point out that Justice KMMB Kulatunga retired Supreme Court Judge had considered the Upali Newspapers Ltd and Ceylon Printers Ltd. Judgments and stated, inter alia, as follows in his Point of View published in Sunday Times of 22.04.2001.

“I would respectfully recommend that the issue be decided by a fuller Bench of the Court of Appeal/Supreme Court in another case. In the meantime the minister may continue to exercise his powers under Section 4 (1) of the Act as was permitted by the previous decisions.

Committee system in Parliament

Quesion: Parliament has a introduced number of Committees. What’s the purpose of having those committees and the advantage for the public?

Gunarathna,
Mahawewa.

Answer: The Committee system in Sri Lanka is based on its mother Parliament, the House of Commons. From its inception, the Sri Lanka Parliament too has employed a number of committees to relieve Parliament from the heavy burden of its work and to transact on its behalf a great deal of its business.

The enormous volume of work before a Legislature and the limited time at its disposal make it impossible that every matter should be discussed at length on the floor of the House.

If the work is to be done expeditiously and with reasonable care, some of its responsibilities have to be entrusted to some other agency in which the whole House has confidence. The most practical method so far devised for this purpose is the Committee System, composed of a small number of members of the legislative body.

The power to appoint committees has been recognized under Article 74 of the Constitution which empowers the Parliament to make Standing Orders for regulating, subject to the provisions of the Constitution, its business, the preservation of order at its sittings and any other matter for which provision is required or authorized to be so made by the Constitution.

Under this Article, when framing the Standing Orders of the Sri Lanka Parliament, taking advantage of the experiences elsewhere, provision has been made in the Standing Orders for the appointment of various Parliamentary Committees.

Types of Committees

The Committees of Sri Lanka Parliament can be classified into two broad categories. They are Standing Committees and Ad-hoc Committees. The Standing Committees are appointed by the Speaker in pursuance of the Standing Orders and continue to remain in office irrespective of the completion of their business.

There is a little permanence in their tenure. They deal with specific business of the House. The Ad-hoc Committees are mostly temporary and cease to exist after completion of their work. These Committees perform such specific functions as are assigned to them from time to time. They may also be called Select Committees.

According to the Standing Orders, the Sri Lanka Parliament, apart from the Committee of whole Parliament, has four types of Committees: Select Committees, Consultative Committees, Standing Committees, andCommittees for Special Purposes.

Committee on public petitions

Question: Please let me know the details of Parliament committees on public petitions and the procedure of forwarding a petition to a Committee?

Dias Nanayakkara,
Nugegoda.

Answer: Parliament committees on public petitions consists of ten members nominated by the Committee of Selection.

The duty of this Committee is to consider the petitions sent by the public and referred to it by the Parliament and to report back to the Parliament its opinion on the action to be taken in respect of such petitions.

This Committee has the power to summon before it and question any person, call for and examine any paper, book, record or other document and to have access to stores and property.

Procedure of forwarding a petition to the Committee on public petitions in accordance with Standing Orders

Standing Orders. No. 25 A - Petitions

* Every petition to Parliament shall be addressed to Mr. Speaker and shall be presented by a member.

* Every petition shall be in respectful language and shall not contain irrelevant statements

* Every petition shall be clear and legible and shall conclude with a prayer reciting the relief sought

* Every petition shall be signed by the petitioner, or petitioners except in case of incapacity by sickness. A person unable to write shall affix his mark in the presence of a witness. The full name and address of every signatory to a petition shall be set out therein.

* No letters, affidavits or other documents shall be attached to any petition.

* No reference shall be made in a petition to any debate in Parliament.

* It shall not be competent for a member to present a petition from himself but the same may be presented by some other member.

* Every petition shall, before it is presented, be signed at the beginning thereof by the member-in-charge of it and deposited at least two clear days with the Secretary General who shall submit it to Mr. Speaker for approval and no petition shall be presented until it has been so approved.

* A member presenting a petition shall confine himself to a statement in the following form:

‘Mr. Speaker, I present a petition from .............................. (Name of Petitioner) of ............................... and ............................... others’

No debate shall be permitted on this statement.

l A petition having been presented to Parliament shall stand referred to the Committee on Public Petitions.

Citizenship

Question: Please advise me on ‘Retention of Citizenship and Resumption of Citizenship in Sri Lanka?

Gamage ,
Kadawatha.

Answer: Under usual circumstances, when a Sri Lankan acquires the citizenship of another country, he/she automatically loses his/her Sri Lankan citizenship. However it is possible for an individual to -

1. Retain Sri Lankan citizenship when acquiring the citizenship of a foreign country. This is called ‘Retention of Citizenship’.

2. Resume Sri Lankan citizenship at a later point of time; after losing it when acquiring the citizenship of a foreign country. This is called ‘Resumption of Citizenship’.

To apply for a retention of Sri Lankan citizenship

You can apply for dual citizenship in Sri Lanka prior to obtaining the citizenship of another country, if -

1. You are Sri Lankan by descent or by registration

2. You are holding a permanent resident status of another country

3. You wish to apply for the citizenship of that country.

To apply for a resumption of Sri Lankan citizenship

You can resume your Sri Lankan citizenship after obtaining the citizenship of another country. You will not be a Sri Lankan citizen from the time you obtained the citizenship of another country to the time of resumption of your Sri Lankan citizenship.

The following persons can request for renunciation of Sri Lankan Citizenship

A Sri Lankan of full age (22 years) and sound mind, who is eligible to obtain the citizenship of another country,

If you need further information you can contact:

Department of Immigration and Emigration, Citizenship Division, (2nd Floor) Ananda Rajakaruna Mw, Colombo 10.

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President’s Fund

Question: Please let me know how we can apply to get money from the Presidential Fund for an operation?

Daisy Ethel Greata,
Naththandiya.

Answer: First you have to go to No. 41, Renuka Building (Ground Floor), Janadhipathi Mawatha, Colombo 1. and forward them a requesting letter annexed with a recomendation letter from the doctor. Then they issue a application form after openning a file. With that application form you have to prove certain requirments such as income, your permanent address ect with necessary documents. After that they will proceed the matter.

The President’s Fund grants assistance for deserving patients who have to undergo following surgeries/treatments:

* Heart surgery:

* Repair of aortic valve replacement

* Repair of mitral valve replacement

* Closure of ASD

* Closure of VSD/Repair of AV canal defect

* Double valve replacement

* CABG (coronary artery by-pass graft surgery)

* Intra aortic balloon pump

* Tetralogy of fallot

* Arterial switch operation

* PDA