Legal Aid Commission

Elders’ Laws developments

Unlike the laws protecting Children , elders laws protecting children are comparatively of recent origin. While childhood had been a continuing human condition, large scale aging cohort is a recent development. The average age of human beings for the major part of human history has been less than 50 years. It is only in the late 20th century that the world is experiencing an elders boom where the elders cohort in some countries have surpassed the bibilical age of three scores and ten years.

Elders Protection Laws and programmes are comparatively of recent origin. A scientific census of the population is currently underway and only projected figures relating to the over 60 year population are used by demographers .According to demographic reports, the over 60 year population has already surpassed two million.

Income Security for Elders

The most important elders welfare step taken after the enactment of the Elders Protection Law of 2000 and its amendment of 2011, is the budgetary provisions in 2012 to increase the elders gratuity to Rs. 1000 per elder. This financial provision will assist over 80,000 elders who are currently finding it difficult to sustain their lives due to lack of any income. Elderly farmers and fishermen who are no longer able to carryout their professions and have no fixed income stand to benefit . A universal gratuity payment for elders have been advocated even by conservative financial institutions like the World Bank and Asian Development Bank. The step the government has taken towards a universal pension scheme for elders without income can be considered as a positive step.

National Council of Elders

The National Council of Elders have advocated along with Helpage Sri Lanka the need to introduce a minimum income generating system for senior elders for the past few years. Helpage Sri Lanka chairman and member of the National Council of Elders Desabandu Thilak de Soysa had been consistently vocal in advocating a universal pension scheme for elders during the past few years.

Elders Desk - Legal Aid Commission

The Elders’ Desk of the Legal Aid Commission working with elders in all parts of the country, extends unreserved support to the ministers proposal to implement an all important progressive measure contained in the Presidential manifesto. Elders Legal Aid unit in providing free legal advice to the elders islandwide has been the implementing arm through magistrates Court the decision of the Elders Maintenance Tribunal when children failed to support parents.

It is not melodramatic to state that a large portion of senior elders, specially women, live on the charity of their children and faces hardships for their very existence.

Elders face harassment in silence as they have no alternative.

We take pride in the fact unlike in the developed Countries over 80 percent of Sri Lankan elders live with their children when compared to less then 10% in developed Countries. National filial affection strengthened by Buddhist Hindu culture may be the major reason for these phenomena but absence of an alternative for the Senior Elders to live in dignity is also an important contributive factor

The Legal Aid Commission carried out a in depth study on the State of Senior Elders who are over 80 years of age in Sri Lanka. The survey results disclosed the dismal condition of the Senior Elders who were “unfortunate” enough to live beyond 80 years without income and health support.

The absence of a hospice System to Support the final years of frail elders who in there youth contributed to the development of the country need to be addressed as a humanitarian measure.

The economic strength of the country may be measured by gross domestic production and per capita incomes.

But the moral health of a nation is measured by how we treat our elders during the final years of their life cycle.

S.S. Wijeratne

[Questions and Answers]

Forfeiture of gratuity

Question: Could you please let me know whether gratuity could be forfeited and on what grounds can it be forfeited?

Natasha,
sent by Email

Answer: The employer is entitled to make deductions from the gratuity payable under the Gratuity Act in the following circumstances:-

The termination of services for reasons of fraud, misappropriation of the employer’s funds. The termination of services for willful damage to the property of the employer. The termination of services for causing the loss of goods, articles or property of the employer.

The forfeiture can be made only to the extent of the damage or loss caused. Loans and advances cannot be deducted from gratuity payments. A Labour Tribunal can review the amount deducted from gratuity payments.

How to find number of lost deed

Question: A deed has been misplaced 30 years before. It was owned by my mother . She has since expired. She did not give any information regarding the said deed. The land in question is being used illegally but there are no constructions. Please help me to find out the number of the deed.

Ariyan,
Sent by Email.

Answer: You have not mentioned where the land is situated. All the lands have been assessed by the relevant Local Authority and the owner has to pay rates to the Local Body. So please go to the relevant Local Body and go through the register and get the particulars regarding the deed and apply to the relevant Land Registry and get the certified copy of deed and encumbrance sheets, if necessary. You have not mentioned as to who pays rates to the Local Body and whether you still got to the land and maintain the boundary premises or boundaries.

You are the legal owner of the land if you have the deed and the land is entered in the assessment register as yours. You have to find out whether the man who uses the land, as mentioned by you in your letter, objects to your entering the land. Otherwise he can always claim prescriptive rights in his favour against you.

Gratuity payment to personal driver

Question: I am a director in a private company. I have employed a personal driver who has been working with me for well over 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 June 2009 due to ill health. Is he entitled to get gratuity under the Payment of Gratuity Act No.12 of 1983. Kindly advice me.

Eva Walpita,
Colombo

Answer: It is provided in Section 7 of the Payment of Gratuity Act No.12 of 1983 that – if a workman is employed as a domestic servant or as a personal chauffeur in a private household or 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.

Accident cases

Question: My brother met with an accident two years ago and his leg was broken due to this accident. The Magistrate’s Court case was over and the driver of the vehicle was convicted. A civil case has been filed at present and the case is pending. While the civil case is proceeding, my brother met with another major accident and died on the spot.

Please let me know, in such a situation, whether the civil case will be dismissed on the ground that the Plaintiff (my brother) is dead. My parents are too old and they are not in a position to hang around in courts. I am his only unmarried sister and my deceased brother was the breadwinner in our family. Please advise us.

Anurada,
Mahawewa

Answer: In such situations, your parents or the deceased’s heirs can be substituted as a party to the case and proceed with the civil case. Substitution should be made as soon as possible before the next date of the case. Further, we would like to advise your parents can also file another civil case in respect of the 2nd major accident of your brother within two years from the date of the accident. If you need further advice regarding this matter you can any one of our Legal Aid Centers island wide.

Main facts to be included in Last Will

Question: I am 82 years and of good sound mind. I have two children (son and daughter). They are happily married and living in houses of their own. I still have properties left in my name. I wish to give the said properties equally to my two children after my death. Hence, I have decided to write a Last Will so that after my death no problems will arise among my two children. I would be thankful if you could kindly let me know the main facts that have to be included in a Last Will. I await your early response.

J.Denzil,
Thalawathugoda.

Answer: You have the full right to transfer your property in the manner you wish. The following main points could be included when writing your Last Will.

A clear statement of the manner in which the assets should be distributed should be included.

*If there are children of minor age a caretaker could be appointed.

Ideas relating to the manner in which funeral activities should be performed could be included.

An executor could be appointed for the proper distribution of the estate.

* In your case this is not necessary because your children are not minors.

Registration of elders’ home

Question: We want to run an elders’ home in our area. Where do we have to register it?

Boiko,
Sent Email

Answer: According to Section 16 of the Protection of the Rights of Elders (Amendment ) Act ,No 5 of 2011,you have to register your home under the Elders Council . If not it is an offence under this Act. Section 16 of the Act says that” 16(1) Every person or organization whether voluntary or otherwise , engaged in the establishment and maintenance of any institution intended for providing residential care for Elders , shall if such institution has more than five elders residing therein , register such institution in accordence with the provision of this Act

Any person or organization who fails to comply with the provision of subsection (1) shall be guilty of an offence under this Act”

Therefore it is advisable to register it under this Act with the said Council. The address is as follows :

Council of Elders -
LHP Building, Nawala Road,
Nugegoda.

Offences relating to Death Certificates

Question: My Uncle's wife has already got the death certificate of my uncle .She produced it to the bank to get the money of my uncle. They are seperated for nearly 10 years. When he came to the viilage he got to know that his wife had already got the death certificate of him submitting false information to relavent authorities . . Can we file a case against the aunty? Is it an offence under the law ?

Answer: Yes , It is an offence under the Registration of Deaths (Temporary Provisions) Act No 19 of 2010 .

Section 15 of this Act states that “Any person who

(a) knowingly , makes a false statement in an application made by him under this Act , or furnishes false information under this Act: ,

(b) being aware that a persion whose death has been rergistered in pursuance of an application made under this Act , is alive , fails to furnish such information to the Registrar General :or

dishonestly or fradulently uses a certificate of death issued under the Births and Deaths Registration Act knowing or having reason to believe that the person refereed to in such certificates is alive

shall be guilty of an offence under this act , and shall upon conviction after the trial by the High Court be sentenced to a term of imprisonment of not exceeding five years . “

Therefore you can file a case in the High Court agaist her . If you need any help you can contact the Legal Aid Commission concerned in your area.

Mediation Board Act,No 72 of 1988

Question: Is there any recent Amendment introduced to the Mediation Board Act , No 72 of 1988

Law student,
Mirihana

Answer : Yes, there is a recent Amendment to the Mediation Board Act ,No 72 of 1988 .That amendment is called Mediation Boards (Amendment) Act,No. 4 of 2011

Section 7 of the Mediation Boards Act,No 72 of 1988 has been amended in subseection (1) of that section as follows(1) By the substitution in paragraph (a) of that Subsection for the words “ twenty five thousand rupees in value “ of the words “ “ two hundread and fifty thousand ruppies in value

by the substitution in paragraph (C) of that subsection for the words “ second schedule to this act “ of the words “ second Schedule to this act or : and

by the insertion immediately after paragraph (c) of that subsection, of the following paragraph

“(d) the offence under section 367 or 368 B of the Penal Code is committed by a person below the age of eighteen years , in respect of any property , the value of which does not exceed rupees five thousand .”

Sexual harassment at work

Question: What do you mean by sexual harassment of the women in work place under Sri Lankan law?

Sent by Email

Answer: Sexual harassment is a gender based social practice that (in a majority of cases) adversely affect women. It is an intentional or deliberate sexist act, which takes place on the ground of a woman's sex and gender. Women are subjected to sexual harassment throughout their lives disregarding their age, class, caste, ethnicity, religious belief, economic status, social status, educational background etc. Although to the recipient the act is unwelcome, humiliating, disgusting, revolting or repulsive; the perpetrator may view it as complimentary, innocuous, funny, ‘normal’ or flattering.

Sri Lankan situation

If the Head of any Government Department or any officer proposes to have any kind of sexual relationship with him to approve salary increment or any other promotion etc it is also an offence under the Bribery Act No.11 of 1954 and its amendments.

Under the Bribery Act No.11 of 1954 and its Amendments, taking bribe from or giving bribe to any person in any Government Department is an offence. If a person demands bribe to do his duty or delays his duty until he is given bribe, such incidents could be brought to the notice of -

The Commissioner to Investigate Allegations of Bribery or Corruption,

No 36, Malalasekara Mawatha, Colombo 7
Hot Line 2586257/1954

The Bribery Commission treats all information as confidential.

Penal Code (Amendment) Act No 22 of 1995 - Section 345 states as follows:-

“Whoever, by assault or use of criminal force, sexually harasses another person, or by the use of words or actions, causes sexual annoyance or harassment to such other person commits the offence of sexual harassment and shall on conviction been punished with imprisonment of either description for a term which may extend to five years or with fine or with both and may also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for the injuries caused to such person.”

Therefore, you can seek relief by filing a case in the Magistrates’ Court after making a complaint to the Police Station of the area in which the harassment took place.

International standards against sexual harassment against women at work

The right to work with dignity is a fundamental human right (Universal Declaration of Human Rights, Article 23). Furthermore, the right to work with dignity entails the need for the worker to be free from cruel, inhuman and degrading treatment as enshrined in Article 5. In this context any conduct of a sexual nature, that is deemed to be degrading, humiliating and unwelcome to the recipient, would be construed as sexual harassment.

The right to work and surrounding working conditions are further reiterated in the UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). For instance, Article 11 of the CEDAW states that the “right to work is an inalienable right of all human beings” as well as “the right to .. safety in working conditions....”.

The Women's Convention ensures the workers’ right to a safe working environment.

EPF

Question:

1. Who should contribute to EPF?
2. How should the contributions be calculated?
3. How can contributions be paid?
4. How to provide the employees with membership certificates?
5. What should the employer do if the membership numbers have changed?

Fathima,
Mahara

Answer:

1. Regardless of the nature and the category of your business, an employer of even one žmployee is legally bound to pay contributions to the Fund starting from the first day of žmployment. Organizations and Institutions exempt from payment of contributions. Social Service Institutions, which provide training for youthful offenders, the destitute, the visually and aurally handicapped.

Charitable Organizations employing less than 10 employees.

Establishments where only members of a family work. (If even one employee is employed from outside the family the institution is bound to pay contributions.)

Exceptions:

In Government and Local Government Institutions contributions must be paid for non-permanent employees.

In establishments where Directors and Partners are the only members, and if these members receive a salary or an allowance, contributions should be paid.

2. The contribution should be made for the total earnings of an employee,

The total earnings should include the following Salary, Wages or Fees, Cost of Living allowance, Special Living allowance and other similar allowances. Payment with respect to holidays. The cash value of cooked or uncooked food supplied by the Employer to the Employee (The determination of such values will eventually be made by the Commissioner of Labour) Food allowance. Any other kinds of remuneration that may be specified Payments in the form of discounts (commissions), piece-rate payments and contract basis payments.

3. Payment of contributions

Obtain three copies of “Form-C” (issued free) from the nearest Labour Office or download from the

EPF website Fill the “Form-C (s)” in triplicate .

The original should be submitted to the Collection counter of the EPF at the 2nd Floor of the Ceylinco House in Fort or post it to;

The Superintendent, Employee’s Provident Fund, Central Bank of Sri Lanka.

P.O. Box 1299, Colombo.12

With a cheque written in favor of the “The Superintendent of EPF”. A receipt should be obtained and should be kept for future reference. The second copy should be forwarded to the nearest Labour Office, The third copy should be filed for future reference

4. An employee should be registered with the EPF within 14 days of appointment. For registration, forms “A, B, H” should be obtained free of charge from the labour department of the area. The duly filled and attested documents should be returned to the Labour Department of the area upon which the “B” card will be returned to the employer. The “B” card should be handed over to the employee by the employer.

Note:

When filling the A, B, H forms the identification, marriage and family member information should be properly checked and the fingerprints should be properly recorded.

5. A report in the following format should be prepared, attested and sent.