Introduction - Mediation vs Litigation

In 2006, the 35 Legal Aid Centres of the Legal Aid Commission provided legal advice and legal representation to some 18,000 indigent litigants islandwide from Jaffna to Hambantota.

This indicates the litigious nature of Sri lankan society. Adversarial litigation often resulting in aggravated conflicts is not conducive to peace and development in Sri Lanka. One of the contributory factors for our protracted destructive national conflict is the adversarial psyche created by a courts system imposed on us by the colonial masters.

The present court system is burdensome to the poor making constitutional aphorism that all are equal before the law and entitled to equal protection of law mere meaningless rhetoric.

Our judicial and legal leaders from Sir Ponnambalam Ramanadan in the early 1900s to the new Attorney-General, C.R. de Silva, PC have spoken of Law’s delays and promised to take corrective action. Law’s delays burden the poor more than the rich and often the rich uses courts with delayed justice as an instrument of oppression.

Was Sri Lankan Society always litigious?

The answer is no. Until the imposition of the adversarial court system on the recommendations of Colebrook Cameron Commission in 1833, the dispute resolution process in Sri Lanka was mediation based except in capital offences like murder and treason.

The Gam Sabha or the village council consisting of elders and village religious leaders resolved village disputes amicably through discussions, negotiations and the use of hallowed traditions.

Dr. Christy Weeramantri, respected international jurist has highlighted the role of the Gam Sabha in village governance of our country. The Gam Sabha represented the moral consciousness of the community and created a voluntary duty based society. Dispute mediation was an important part of its traditional functions.

The British Colonial rulers who wanted to replace the mediation system with commerce friendly adjudication introduced the courts system where English was the medium of judicial process.

They also introduced laws such as the Wastelands Ordinance and Crown land Ordinance and called upon the Kandyan peasantry to prove title to their traditional homelands.

The poor peasantry failed due to lack of deeds and the rulers confiscated the land and virtually gifted them to coffee and tea planters. The Kandyan peasantry continues to be the most deprived segment of Sri Lanka society.

Mediation resulting in win-win solution to disputes even though currently popularised by the Harvard Negotiation Project was first expounded 2550 years ago by Lord Buddha in stanza 201 of Dhammapada.

He pronounced victory breeds hatred. The defeated live in pain. Happily the peaceful live, giving up both victory and defeat. Adjudication in courts produce winners and losers perpetrating continued hatred and ill-will. It can be compared to war where ultimately no one really wins.

Sri Lanka has made an effort to restore mediation as a dispute resolution mechanism. The Mediation Act No. 72 of 1988 and 21 of 2003 are important steps. The Alternative Disputes Resolution Institute has trained 5000 Grama Niladharies in mediation skills and basic humanitarian law with the support of the Asia Foundation. An enthusiastic response from village communities indicate mediation culture could be reawakened in our country.

S.S. Wijeratne

Questions and Answers

What a pensioner should do before going abroad

Question: I am a pensioner. I have decided to go abroad. Before my departure what should I do?

M. Gregory
Mutwal

Answer: First you have to decide whether you wish top get your pension in Sri Lanka or abroad. If you wish your pension to be remitted in your account while you are abroad, you have to inform the relevant Divisional Secretary and the Foreign Pension Division. Then they will issue you with Pension I Form (Life Certificate).

You have to take sufficient photocopies of the said Form and take them with you when you are going abroad. You have to fill this form and get it attested by an authorised person mentioned in the form and send it to the Bank before the date of your pension in Sri Lanka.

Then on the instructions of the Pension Department, the Bank will remit your pension in your account and any day you come to Sri Lanka, you can withdraw your pension from the Bank.

If you wish to get your pension abroad, you have to fulfil the following requirements:-

(a) you should have permanent residency/ citizenship

(b) approval of the High Commissioner

(c) approval from the Pension Department in Sri Lanka.

If you need further information in this regard, you can contact the Accounts Section, Foreign Division, Pensions Department, Maligawatte, Colombo 10. Tel.No. 2320439

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Entitlement of Gratuity

Question: What kind of job - permanent, temporary, casual, contract, on assignment, on piece rate entitles to gratuity within the meaning of ‘workman’ as defined under Section 5 (1) of the Payment of Gratuity Act No. 12 of 1983.

H.W. Gunasekera
Panadura

Answer: Any employee who has worked for a period of five completed years without any interruption in service is entitled to claim gratuity under the Payment of Gratuity Act No. 12 of 1983. It could be permanent, casual, or on contract. As long as he works continuously worked without a break and completes 5 years will qualify for gratuity.

If the gratuity is not paid within 30 days from the date he ceases to be an employee, the Employer will be called upon to deposit with the Commissioner of Labour the amount due as gratuity along with the surcharge as provided in the Act.

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Loss of employment due to wrongful acts of partners of organisation

Question: I have been employed in a Mercantile Organisation situated in Colombo 2, as a Clerk from 1979. During the 28 years of my service in this Organisation, I have served with loyalty and integrity.

On or about September 2006, the computer operators in this Organisation have been feeding incorrect data into the system and engaged in fraudulent activities. The Criminal Investigation Department was informed about this and after conducting investigations, those who have been found guilty have been arrested and released after questioning and legal action has been instituted against them.

In the meantime, the Senior Partner of this Organisation issued me a letter dated 12th April 2007 stating that I should be held responsible regarding this matter and till an inquiry is held. I have been sent on leave with pay, till the 15th of May 2007.

Although it is stated that I was in charge of the Accounts, according to my letter of appointment or the list of duties given to me, nowhere does it state that I am responsible for the computer entries or the internal audit of the Organisation.

I feel that this action has been manipulated against me as I have complained to the Commissioner of Labour with regard to the Wholesale and Retail Commercial Establishment Act of May 2003 in connection with the salaries.

A Labour Officer visited our Organisation and requested the owners to pay me the salary that has been stipulated, together with the arrears of EPF etc., due to me, but upto now this has not been done.

I therefore, request you to kindly enlighten me as to what action I should take, in the event I lose my employment due to the acts by the Partners of the said Organisation.

I also wish to inform you that I have served in this organisation for 28 years and I am left with only 6 years before I reach my retirement age. It will not be easy for me to look out for new employment at this stage.

Since my employers have damaged my reputation by treating in this manner, I earnestly request you to kindly look into this matter and advise me as to what action I should take to claim for any compensation, etc.

M.S. Saman
Wellawatte.

Answer: It is premature to advise you in the matter as it appears that the Company is contemplating disciplinary action against you. You should therefore await the charge sheet/ show cause letter.

You should thereafter reply to the same. The Company should thereafter hold an inquiry if they find that your explanation is not satisfactory. Any action to be taken against you will depend on the findings of the Inquiring Officer.

With regard to the salary, EPF and ETF, if the Company has still not complied with the direction of the Labour officer, you should bring it to the notice of the Labour Officer concerned.

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Functions of Foreign Pension Division

Question: Please let me know the function of the Foreign Pension Division at the Pensions Department

F. Peiris
Moratuwa

Answer: The functions of the Foreign Pension Division are-

1. Sending of roll forms to the pensioners after receiving request from them for their pensions abroad.

2. Calling for the pension files from the Divisional Secretarial for this purpose.

3. Preparing the transfer orders and sending them to the relevant authorities

4. Sending of Pension Department Circulars to High Commissions and crown agents.

5. Restoration of full pensions.

6. Preparing the arrears of the pensioners

7. Rectifying pension anomalies of pensioners

8. Sending of statistics to High Commissioners and crown agents if needed.

9. Forwarding reports to the Ministry of Public Administration and Home Affairs if requested.

10. Providing information to the Ministry of Foreign Affairs if requested.

11. Sending replies to the mail daily received from the High Commission Offices, crown agents and the pensioners.

If you need further information you may call the Foreign Pension Division, Pension Department, Maligawatte, Colombo 10. Tel.No. 2431647.

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World Family Day

Question: We understand that the 15th of May has been declared as the “International Day of Families”. What is the importance of this day in the Sri Lankan context?

Anura
Balangoda

Answer: The International Day of Families which fell on 15th of May was proclaimed by the United Nations General Assembly in its resolution 47/ 237 of 20th September 1993.

The theme for this year is “Families and the person with Disabilities”. This annual observance reflects the importance the international community attaches to Families regarding their situation around the world.

The International Day of Families provides an opportunity to promote awareness of issues relating to the family as the basic unit of the society as well as to promote appropriate action to recognise and promote the importance of families.

The day can become a mobilizing factor on behalf of families in all countries to avail themselves of this opportunity and to demonstrate support of the family issues appropriate to each society.

On this International Day of Families, we have to dedicate ourselves to enabling the family the most basic unit of society, to fulfil its role in ensuring that persons with disabilities enjoy full human rights and dignity and flourish as individuals.

When we think about the theme of this year we have to give a special concern about the disabled people within the family. Society has a responsibility to people with disabilities and their families.

In December 2006, the United Nation’s General Assembly adopted the convention on the rights of persons with disabilities, the first human rights treaty of the 21st Century.

It states that persons with Disabilities, and their family members should receive protection and assistance so that way that Families can contribute towards the full and equal enjoyment of the rights of persons with disabilities.

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How to apply for a new passport for the lost one

Question: My passport has been lost. I want to apply for a new passport. Please let me know the procedure to apply for a new passport.

B. Karuna
Katuneriya

Answer: You have to follow the procedure given below:

(i) A Police report from the nearest police station where the passport is believed to be stolen or lost should be presented.

(ii) A penalty of Rs. 10,000 in addition to the normal fees has to be paid. However, the penalty need not be paid if the 10 years validity period of the stolen/ lost passport has already expired. If the applicant has lost the passport abroad and obtained an I.C.O.M/ N.M.R.P. on payment of the appropriate fee and the penalty, he/ she need not pay the penalty. I.C.O.M./ N.M.R.P. means a temporary passport issued by the Sri Lankan Embassy for the purpose of travelling to Sri Lanka only. Further information could be obtained from the Dept. of Immigration and Emigration, Punchi Borella, Borella. Hot Line No.011 5329000

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New pension scheme for disabled persons who are not in Government Service

Question: I am mother of a disabled girl from Kalutara area. I heard that pensionable parents’ children can obtain their parents’ pension after their death. I am not doing a pensionable job. I want to know whether there is anyway to get a pension for my disabled daughter. Please guide me.

Amarawathi
Kalutara

Answer: The Social Security Board has introduced a pension scheme for disabled persons both men and women who are not covered under the government pension scheme. In Sri Lanka, a special social security benefit scheme for women with disabilities has been introduced known as ‘Samaka Diriya’.

‘Samaka Diriya’ is a pension scheme introduced together with the National Secretariat for persons with Disabilities in order to promote living standards of persons with disabilities.

Women with disabilities who opt to select one of the six initial pension schemes introduced by the Ministry of Social Services and Social Welfare will entitle to pension under ‘Samaka Diriya’.

In this pension scheme, a woman after 60 years of age is entitled to a life long monthly pension and in addition is entitled to receive a set of assistive devices only once in lifetime after enroling in the said pension scheme.

Further, if the disabled woman is self employed, assistance will be granted to improve that venture, and if she employs three disabled women, she will be granted Rs. 10,000 for extension of her venture which will not be recovered.

Another benefit is that a beneficially of this pension scheme will receive up to a maximum of Rs. 20,000 when suffering from serious illness.

If this disabled person has a piece of land of his/ her own, a sum of Rs. 75,000 will be paid for the construction of a house. For further information about this scheme you may please call Tele Sale Sections of the Sri Lanka Social Security Board through Telephone No. 0112852958.

The application forms could be obtained from that section or from District Co-ordinators of the Sri Lanka Social Security Board attached to District Officers or you can obtain information about the Monthly Pension Scheme from the General Manager, Social Security Board,150A, Nawala Road, Nugegoda.

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What is condominium plan

Question: What is Condominium Plan. Please explain.

Abarahim
Moratuwa

Answer: According to the Apartment Ownership Law Act No. 39 of 2003 - Section 6, a “Condominium Plan is prepared and drawn by a licensed surveyor and provides comprehensive information relating to the sub-divided buildings, its common elements and on each Condominium Unit that forms part of the sub-divided building. Generally, a Condominium plan would consist of three schedules.

* The first schedule identifies each Condominium Unit which forms part of the sub divided building, giving the specific, boundaries approximate floor area, storey on floor assessment numbers or symbol, as applicable.

* The second schedule gives similar information relating to each of the common elements which form part of the sub divided building.

The third schedule gives the share value or percentage of the common elements as attributable to each condominium unit or parcel.

Currently, Land Registrars maintain Registers only of particulars given in the First schedule registering the Condominium Units.

The common elements are not registered but only a note of the share value as attributable to the respective Condominium Unit is recorded in the connection with the registration of the said Unit. Ideally, details of common elements should also be registered as these constitute the co- owned property of the Condominium owners.