Legal aid Commission

Delayed Victims of Crime Legislation

A ‘victim of crime’ means “a person who has suffered any injury, harm, impairment or disability whether physical or mental, emotional, economic or other loss, as a result of an act or omission which constitutes an offence under any law or an infringement of a fundamental right guaranteed by the Constitution or the violation of a human right”.

The said human rights are referred to in the International Convention on Civil and Political Rights (ICCPR) Act No.56 of 2007 and includes a person who suffers harm as a result of intervening to assist such a person or to prevent the Commission of an offence and the parent or guardian of a child victim of crime and any member of the family and next of kin of such person, dependents and any other person of significant importance to that person.

Crimes or offences which could make a person become a victim includes physical assault, sexual assault, domestic violence, armed robbery, violent robbery, theft, child abuse, child sexual abuse, trespassing, threats to kill, murder, rape, reckless driving or any other violent crime committed against a person.

Some crimes such as sexual abuse of a child or domestic violence could be a continuing crime for longer periods.

On June 6, 2008, Assistance and Protection to Victims of Crime and Witnesses Bill was first tabled in Parliament of Sri Lanka for the first time by the Minister of Justice and Law Reforms as an urgent Bill. However this never took the form of a formal legislation and it’s still lagging in parliament.

On the other hand, many developed countries, such as, the United States, Australia and the United Kingdom have legislation in their Penal Justice System to cover the needs of the victims as well, in protecting their rights, while punishing the perpetrator.

Although the specifics vary from state to state, most victim rights laws provide victims of crime with the right to be treated with dignity and compassion, the right to protection from intimidation and further harm, the right to be informed about the case's progress through the criminal justice system, the right to receive compensation for damages, the right to equal treatment in court and the right to have their property returned promptly, if found by the Police.

Additionally, most states provide services available to crime victims. In most states, these services can, provide emergency assistance immediately following the crime, provide services for victims of sexual assault, child abuse, domestic violence and elder abuse, provide counseling for witnesses of homicide and friends or relatives of homicide victims Help victims with the retrieval of their property, and compensation for financial losses, Inform victims about the progress of court cases and accompany them to court and provide crime prevention information and training.

The Sri Lankan legislation through extremely comprehensive such as the Penal Code and the Criminal Procedure code has found ways to punish the perpetrator. However the story ends there.

The biggest gap in the Sri Lankan legislation is that it barely recognizes the rights of the person affected by the crime. It is almost as if that person is forgotten in the eyes of law in the entire Criminal Justice System.

For example, if we consider a woman who is raped, being once the victim of this heinous crime, she is victimized again many times more when she complaints to the police (where female Police Officers are not always found at stations), during trial when she is repeatedly questioned and harassed about her experience during the crime and then finally by society who would always attach a stigma to her as a 'woman who was raped'. Such women can rarely live a normal life after the crime. Hence, it becomes a continuing crime, in the sense the person continues to be victimized by different arms of the justice system and society.

Four months have passed since Justice Minister Rauf Hakeem promised to make the Assistance and Protection to Victims of Crime and Witnesses Bill which has lingered in Parliament for over four years, see the light of the day.

Swasthika Arulingam AAL, Director, Legal Aid Centre for Victims of Crimes

[Questions and Answers]

Obtaining EPF after marriage

Question: I worked in a private company. I resigned from my job due to marriage . Please let me know how to Obtain my Emplyees Provident Fund (EPF)?

- Sagararika, Delgoda

Answer :

Basic eligibility and requirements:

Women who leave the service in anticipation of their marriage are eligible to receive this money.

Application is to be made subject to following conditions.

Marriage should take place within three months from leaving the service

Should have left the service within five years from the date of marriage

Applicant’s name in page I and page II of the application should be correct.

Name given in the application and the name registered in the Central Bank should be identical.

All the required documents should be submitted.

Applications which do not satisfy the above conditions will be rejected.

Method of Submission:

Application for obtaining a service should be submitted to the Deputy Commissioner of Labour of the Employees Provident Fund. The necessary certificates and documents should accompany the application.

Application Form

Form K

Other Documents
Certificate of marriage

Card B

A copy of the national identity card certified by the employer or if the institution is closed it should be certified by the Grama Niladhari and countersigned by the Divisional Secretary.

A copy of the applicant’s Bank Pass Book.

Step by Step Procedure :

Step 1 : Obtaining the form K from the Head Office in Colombo or from the District Office.

Step 2 : Obtaining the Employer’s certificate

Step 3 : Handing over of the application duty perfected with the following documents.Card B: Certificate of Marriage, a copy of the national identity card, a copy of the Bank Pass Book.

Step 4 : Checking the application by an authorized officer of the Department of Labour.

Step 5 : Forwarding the application to the Employees Fund Division.

Step 6 : Release of money by the Employees Fund Division

Time to be Taken for the Service: If the application is perfected correctly, it will take a period of one month to remit the money. Imperfect applications will take more time.

Time for submission:

Week Days - From Monday to Friday Time - From 9 a.m to 4:30 p.m Holidays - Public and mercantile holidays.

Period of Validity: From the date of submission of application until work is finalized.

Expenditure on the Service: Service is free of charge

Supporting Documents

Application in form K

Card B

Copy of the certificate of marriage

Copy of the national identity card signed by the employer or the Grama Niladhari and the Divisional Secretary

A photo copy of the applicant’ Pass Book of the Bank Account

EPF on the death of member

Question: Will I be able to get my husband's EPF If he dies before he obtain his Employees Provident Fund? Please let me know the Procedure?

- Karunatilaka, Mahara

Answer: Basic Eligibility and RequirementsEligible persons should submit their applications

Applicant should furnish necessary certificates

Deceased person should have been a member of the Provident Fund.

Death Certificate should be furnished.

Application Forms: Each heir of the deceased person should submit an application on form L

Order of Action:

Step 1: Submission of applications

Step 2: Perfected application duly endorsed by the employer should be handed over to the Head Office of the Department of Labour together with the required documents .

Step 3: Checking the application by the Department of Labour.

Step 4: The letter of decision to be sent to the Employees Provident Fund Division of the Central Bank.

Step 5: Release of benefits

Time Taken for the Service:

Two months will be required from the date of handing over of the perfected application. Incomplete application will need more time.

Registration of factories

Question: Is it mandatory to register my factory under the Industrial Safety Division of the Labour Department?

- Sadunika Fernandupulle, Negombo

Answer: Yes, Registration of Factories Every factory should be registered at the respective District Factory Inspection Engineer’s office of this division. Relevant application (CFIE-4) together with the factory plan should be submitted for this registration. This service is free of charge.

Methods of Submission:

(a) Submission of Accident Reports. Accidents that occur in the factory or in the worksite should be reported to the District Factory Inspection Engineer in from 10 by the occupant.

Grievous or fatal accidents may be reported immediately over the telephone or by fax message for which form 10 can be sent thereafter. Other accidents which weaken the person for more than 3 days may be reported on the fourth day.

(b) Complaints problems relating to employees’ safety, health and welfare may be submitted to the Commissioner of Labour or District Factory Inspection Engineer by persons or by Trade Unions.

Step by step procedure:

Step 1: Commencement of inquiries

Step 2: Providing basic advice on employees’ safety, health and welfare requirements and on violation of the law.

Step 3: Checking whether the advice given on employees safety, health and welfare and on violation of law in being complied with.

Step 4: If the position remains the same, then to refer then to the Court of law.Industrial Safety Division, Department of Labour, 97, Jawatta Road,Colombo 05.

Head Office had been located at the above address and services of the institution have been decentralized in 11 regional offices.

EPF contribution

Question: Please let me know Who should contribute to EPF?

- Jayatilaka, Abepussa

Answer : Regardless of the nature and the category of your business, an employer of even one employee is legally bound to pay contributions to the Fund starting from the first day of employment. 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.

EPF

Question : Please answer the following

1. What are the special occasions where contributions should be made to EPF?
2. Does the Employee's status or the designation affect EPF contributions?
3. How should the contributions be calculated?
4. How can contributions be paid?

- Amrita, Kandy

Answer:

1. a. Government and Provincial Councils

Contributions should be made for the temporary employees of provincial councils.

b. Enterprises which comprise of only family members If the business is run solely by family members then those businesses are exempted from payment of EPF.

If even one external employee is recruited then contributions must be made for that particular employee and all the family members

c. Companies where partners or directors are the only employees If the above parties are paid for their services then contributions should be made

2.The employee status or the designation is irrelevant to the contribution to EPF. Employees working on piece rate, contract basis, commission basis, work performed basis or any manner what so ever are eligible for contributions to EPF. The contribution should be made for the total earnings of an employee.

3.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

4.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 Second 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.

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

EPF membership

Question: How to provide employees with membership certificates?

-Karunapala, Giridara

Answer: 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.

Membership certificates

Question: What should the employer do if the membership numbers have been changed in the membership certificates?

- Fathima, Nugegoda

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

Model :

Member Account Correction Report

Company Registration Number ..............................

Company / Estate name ..............................

Year and Month....................................

Members Name.....................................

Mistaken Membership No. ….............................

Corrected …...................................

Membership No............................

Contribution …..............................

Information................................

Other...........................................

I certify that the information in the above document is true to my knowledge. I hereby request the records to be corrected as stated above.

..............................................

Date : .........................

Signature of Employer (Rubber Stamp)

If the membership number is wrong in both B and C forms then, for the total duration of contribution to those accounts, a report as above, for each individual, should be sent accompanied by the B card, to the Labour Department of the area.

If the membership number is only wrong in the C form then a report as above for the total duration of contribution should be sent to;

The Superintendent, Employees’ Provident Fund, Central Bank, Colombo 01.

Protection of Elders’ Rights

Question: We know there are so many elders who are neglected by their children , I want to know is there any law to care for elders in the prevail law in Sri Lanka .

- Chamikara, Polonnaruwa

Answer: The Elders Act No 09 of 2000 has recognised the importance of look after the parents in Sri Lanka .

Section 15 of the Elders Act No 09 of 2000 states that 15

(1) Children shall not neglect their parents willfully and it shall be the duty and the responsibility of children to provide care for , and to took in to the needs of , their parents

(2) The state shall provide appropriate residential facilities, to destitute elders who are without children or are abandoned by their children .

No elder shall , on account of his age , be subject to any liability , restriction or condition with regard to access to or use of , any be subject to any liability restriction or condition with regard to access to or use of , any building or place or institution which any other person has access to or is entitled to use , whether on payment of any fee or not.

Authentication of documents

Question: I want to get the authenticates of my Birth and Educational certificates to be forwarded to foreign country. Please help me.

- Kawindi, Maharagama

Answer: If you want to authenticates of Documents you have to handed over those documents to the Consular Division of the Ministry of Foreign Affairs, Republic Building, Colombo 1, Sri Lanka. Documents are accepted for attestation from 9 a.m. to 1 p.m. and the attested documents are returned to the owners from 10.30 a.m. time to time calling the token numbers through the Public Address System. The original certificate should be forwarded for attestation. Photostat copies are not attested.

The Consular Division are attested Only the documents that are written in Sinhala, Tamil, English and Arabic.

Only the translations done by sworn translators are attested and the sworn translator should clearly mention on his/her letterhead or the seal/stamp, the languages in which he is authorized to do the translations.

When a Sinhala or Tamil or English document is translated into Arabic, the particulars of the original document should be mentioned in English in the document that has been translated into Arabic.

When the authenticity of a document has to be confirmed before attestation and the specimen signature required for the attestation of a document is not available, the document is forwarded to the relevant authority for verification for which a period of about 3 weeks is necessary. Letters addressed to the Ambassadors and diplomatic officers of foreign countries, various institutions in foreign countries etc. are not attested. The documents should be in the form “TO WHOM IT MAY CONCERN”. Also the letters/documents regarding the obtaining of visas for foreign countries are not attested.

The Consular Division of the Ministry of Foreign Affairs are not attested by Deeds/titles, bank statements, appointment letters, defamatory documents.