Introduction - Elders protection enhanced

Sri Lankan social justice systems continue to progress despite the ethnic conflict, had been marvelous.

The new development indictors of life expectancy surpassing 75 years functional literacy exceeding 92% and infant mortality falling below 10 for 1000 births with a meagre per capita income of just over US$ 1030 are indeed remarkable achievements. Sri Lankans can keep new high international fora when social development issues are discussed.

Sri Lanka's 2.5 Million elders form nearly 11% of our population and 20% of the voting population. Their increasing influence in formation of social-political agenda was seen when all the political parties in Parliament adopted the Protection of Elders Rights Act No. 9 of 2000.

This pioneering law in Asian regions recognized the growing elders' role in development and the need for comprehensive social security network needed by indigent elders.

The National Elders Council created under the Act has taken the needed steps to create a society for all ages including the elders. The social dynamics of post private sector economy where the nuclear families were splintered leaving the elderly who are isolated, lonely and immobile are now being addressed by the village based elders' societies.

According to the National Secretariat for Elders over 6,500, elders or senior citizens societies have blossomed all over the island including the North and East.

The amendment to the Protection of Elders Rights Act No. 9 of 2000 approved by the Cabinet on April 23, 2007 gives legal recognition to these important social organizations.

The Legal Aid Commission through its Elders Desk has supported the National Elders' Council work by providing free legal advice to the elders and supporting district level meetings of the Elders Societies.

The societies had taken steps to address problems of elders such as loneliness and develop creative facets and engage in service to others, specially the frail elders. Elders Societies traverse across ethnic and religious divides thus helping to develop a common elderly consciousness.

Another important amendment in the new law is legal recognition of "Elders Identity Card". Ministry of Social Services started issuing elders' identity cards for those over 65 years of age even before the elders' law came into being. Unlike in the developed elder friendly countries the Sri Lankan Institutions both in the private and public sectors refused to recognize the Elders "badge of honours".

The card intended to facilitate easy services to the elderly and obtain discounts in geriatric medicine and receive increased interest income from savings. This has not happened as we do not still have a social responsible private sector in Sri Lanka.

The new amendment legalises the elder's identity card and provides for the Minister to make rules as to how the card could benefit the elders.

Elders rights are human rights, the new amendment definitely helps at protecting elders' human rights.

S. S. Wijeratne

Questions and Answers

Borrower defaults instalment payments to bank

Question: We two are the guarantors to obtain a loan from a Government Bank. According to the Bank statements the person who obtained the loan did not repay to the Bank the instalments and ignores their reminders.

According to the Bank's instructions, the Bank will have the right to sue us in this deal. We are ready to honour the bank any way, but the culprit is still negative. What shall we do in this regard? Please advice us. Thank you for your valuable advice to the general public through the Legal Aid Page.

M. A. Ismeth,
Beruwala.

Answer: 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 be subject to the provision 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.

Section 2 (2) further states that "No action shall be instituted by an institution in terms of the procedure laid down by this Act, for the recovery of any debt, where the sum alleged to be in default is less than one hundred and fifty thousand rupees" etc...In your problem you have to discuss this matter with the Borrower and the bank before they take steps to file action against the Guarantor. Otherwise you can lodge a complain with the police against the borrower.

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.

Period of validity of travel documents

Question: My son is a frequent overseas traveller. Please let me know the period of validity of travel documents as I need to advise my son regarding this. Please advise through your Legal Aid Page.

M. Mohideen,
Colombo 4.

Answer: The period of validity of Diplomatic Passports should be restricted to the period of office of the holder.

Official Passports and Ordinary Passports are valid for 10 years at the time of first issue. No passport is valid for more than 10 years from the date of first issue.

On the expiry of 10 years from the date of issue, or if there are no pages for visa endorsements, a new passport should be obtained. There is no provision in law to attach additional pages to passports.

Emergency Certificates are issued valid for two years at the time of first issue and can be validated for a further maximum period of two years. No Emergency Certificate can be validated for more than 2 years at a time.

Identity Certificates are issued valid for five years at the time of first issue. It cannot be validated for a period in excess of five years. It would be preferable, as a rule of thumb, for Missions to validate Identity Certificates and if necessary restrict the number of journeys.

How to get passport for senior citizens to visit son abroad?

Question: My wife is now 67 years old, born to a Malay family in an estate. She is unable to get her Birth Certificate as the Registrar of Births says her birth has not been registered. Please help me. I am awaiting reply through your valuable Legal Page.

Al-Haj M. F. Abbas, Moratuwa.

Answer: You can obtain a Passport for your wife who is a senior citizen without her Birth Certificate. The procedure is you have to fill the passport application form with five coloured passport size photographs and submit the same to the Dept. of Immigration and Emigration, Punchi Borella with the following documents:

(a) National Identity Card (with photocopy) if you possess one.

(b) Probably age certificates issued by the Medical Officer.

(c) The letter issued by the Registrar of Births stating that your wife's birth has not been registered.

(d) If your children were born in Sri Lanka, copies of their Birth Certificates

(e) Marriage certificate.

(f) If your wife has sisters/brothers, copies of their Birth Certificates.

(g) Affidavit stating that you have no Birth Certificate.

If you submit the passport application form with the above mentioned documents to the Department of Immigration and Emigration, they will issue you with a passport since your wife is a Senior Citizen. Otherwise, the Birth Certificate is a necessary document to obtain passports.

Legal rights of visually handicapped lady in a testamentary case

Question: I am a visually handicapped woman who is married to a blind man. We bought a land and built a house from our own money. Thereafter his parents came to live with us. My husband met with an accident and died on the spot one month ago.

After his death I am facing a lot of difficulties and problems. My mother-in-law is forcing me to show the deed and she says that I have no right to be in the house. I am a blind woman.

I am in a very helpless situation. There is a person who is interested to marry me. He is totally blind. In case I marry him, will I lose my legal rights? Please advice me.

Kamala,
Rajagiriya.

Answer: Irrespective of whether you are a blind person or not, you are governed by the Common Law. You have a legal right of half share of the property.

Under the Civil Procedure Code, Section 525 says that -

"When any person shall die in Sri Lanka without leaving a will, it shall be the duty of the widow, widower, or next of kin of such person, if such person shall have left property in Sri Lanka amounting to or exceeding in value five hundred thousand rupees, within one month of the date of his death to report such death to the District Court of the district in which he shall have so died, and at the same time to make oath or affirmation or produce an affidavit verifying the time and place of such death and stating if such is the fact, that the intestate has left property within the jurisdiction of that or any other, and in that event what Court, and the nature and value of such property."

Under these provisions you have a legal right to ask half share of the property of your husband. In order to obtain the half share of your husband's property, you have to file a testamentary case in the District Court where the land is situated.

If you need further information or assistance you can visit our Disabled Person's Unit situated at our Head Office at No. 129, High Court Complex, Colombo 12.

Tsunami housing problem

Question: I am a pensioner aged nearly 90 years. My right eye is blind due to glaucoma. About six years ago an eye operation was performed by a Government eye specialist to remove the cataract from my left eye and to put the lens therein. Now the vision in my left eye is blurred.

Now that my right eye is blind, the doctor vide his prescription dated 13.03.2005 has prescribed that eye drops be put into my left eye with a view to save the faint vision therein. That is being done with the help of a family member.

Being a senior citizen with impaired vision in my left eye, at times I fell that I cannot travel unaided. I have an unsettled tsunami housing problem which has to be finalised by the officers of the Government office in Colombo 1.

Under these circumstances, please let me know the procedure that I should follow to prove that I am a legally approved Disablist. I as a Disablist intend to request AAL at Development Desk 7 - Elders' Desk to look into my unsettled tsunami housing problem.

S. R. K. Kodikara,
Ratmalana.

Answer: The Legal Aid Commission has established 11 centres in the tsunami affected areas which are fully funded by the Asian Development Bank.

The pubic who had suffered by the tsunami as well as others in the area who have been directly/indirectly affected by the tsunami are appraised how to resolve their problems.

We have a Tsunami Regional Centre in Colombo at No. 211, Superior Court Complex, Hulftsdorp, Colombo 12. Ms Piyumi Kumari, Attorney-at-Law is in charge of this Centre. Tel. No. 060-2137153. The Elders' Desk is also situated in the same premises and the Head of this Desk is Ms Pradeepa Nilmini, Attorney-at-Law.

We have already referred your matter to our Tsunami Regional Centre. This Centre together with the Elders' Desk will look into your problem and take necessary steps in the matter. If you need any advice, please get in touch with Ms Piyumi Kumari or Ms Pradeepa Nilmini who will give you the necessary advice over the telephone.

Obtaining Sri Lankan Citizenship for child born in Italy

Question: My baby was born in Italy two months ago. My husband and I are Sri Lankans. We migrated to Italy in order to earn more money. I wish to return to Sri Lanka with our baby. Can my baby get Sri Lankan citizenship?

M. Beatrice,
Negombo.

Answer: The answer is 'no'. If your child was born in a foreign country, he/she is not entitled to Sri Lankan citizenship. If your child needs Sri Lankan citizenship, you have to apply for a Citizenship Certificate through the Department of Immigration and Emigration, Citizenship Unit in Sri Lanka.

In this connection you have to inform the Sri Lankan Embassy in Italy that you are a Sri Lankan and your child was born in Italy. Then they will issue you with a Citizenship Certificate. The following documents will be required to obtain Sri Lankan Citizenship Certificate:

(a) Birth Certificate issued by the Sri Lankan Embassy/Consular in Italy.

(b) Applicant's Birth Certificate (mother/father).

(c) Marriage Certificate of parents.

(d) Parents' Passport at the time of birth of the child.

(e) Declaration of the Applicant stating that she has no citizenship of any other country except Sri Lanka.

(f) Charges payable. If the Citizenship Certificate is applied within one year from the date of birth of the child, the fee payable is Rs. 1,000. For delay of every one year Rs. 500. Citizenship Certificate could be applied only up to the age of 21 years of the child.

We would therefore advice you to apply for your child's Citizenship within one year from the date of birth of your child.

Premature termination of contract

Question: I was employed as a Research Assistant by an NGO for a period of two years commencing from the 1st of January 2006 to 31st of December 2007 at a monthly salary of Rs. 40,000.

My contract does not say that it will be extended for a further period as determined by the employer. I am now 53 years and took up this job leaving the other job on the understanding that I could work till the 31st of December 2007. I submitted my interim report last week. My presentation was appreciated by those present at the meeting.

The Program Manager suddenly informed me that my services will not be required after the 31st of May 2007. To-date I have not been found fault with my work. Neither did I receive any letters from my employer reprimanding me for any lapse.

For that matter no letters have been issued to me calling for explanation with regard to my work. On the other hand I have been commended for my work. I seek your advice in the matter.

S. Victor,
Colombo 6.

Answer: Your contract is for a period of two years. By the 31st of May 2007 you will be completing 17 months with your employer. You have seven more months. According to your contract, your contract does not say that you contract will be extended for a further period. You will therefore be entitled to claim compensation up to the end of your contract.

Since you have not been given any reasons for your termination in writing, you could seek relief before -

(a) The Commissioner of Labour under the Termination of Employment (Special Provisions) Act No. 45 of 1971.

(b) Before a Labour Tribunal.

You should apply to the Commissioner of Labour or to the Labour Tribunal before the 31st of August, 2007 for relief.

Can balance of housing loan be deducted from gratuity payment?

Question: I was employed in a leading company in Colombo for (20) twenty years. When I retired on 10.05.2007 I was paid gratuity after deducting the balance housing loan.

I was paid a housing loan by the Company in January 2001 which has to be settled by December 2005. There is an outstanding balance on this loan. The loan agreement provides for unpaid loan to be recovered from gratuity. Is this in order? Please advise me whether I can file action in Labour Tribunal.

M. Merril,
Seeduwa.

Answer: Gratuity is due to you under the Payment of Gratuity Act No. 12 of 1983. The Labour Tribunal has the power under this Act to go into forfeiture of gratuity. This being a deduction under the Loan Agreement between you and the Company where there is specific provision for recovery of the loan from gratuity it cannot be taken as forfeiture.

Labour Tribunal will not have jurisdiction to grant relief to you. There was a recent case in the Labour Tribunal, Colombo which held that it has no jurisdiction. This decision of the Labour Tribunal was affirmed by the High Court, Colombo.

You may seek the assistance of the Commissioner of Labour who is empowered under the Payment of Gratuity Act No. 12 of 1983 to take action to recover gratuity due in law.

Problems regarding child trafficking

Question: Our village is a very remote area and often attacked by terrorists in the northern province. Consequence of the terrorist attack, child trafficking has been a main problem which our villagers suffer. Kindly let us know how the Legal Aid Commission could help us in this serious matter.

Villagers from Northern Province

Answer: The Legal Aid Commission has set up a Child Rights Desk in order to create awareness among the community on child protection law according to Article 42 of the UN Convention on Rights of Children and also to provide free legal advice to child victims, child abuse and violence in children. Therefore kindly send us a letter giving all the details to the following address:

Ms Mahesha Priyadarshini de Silva, AAL, Coordinator, Child Rights Desk, Legal Aid Commission, 129, High Court Complex, Colombo 12. Tel. No. 2433618.

On receipt of your letter, we could provide you with free legal advice in the matter.

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National essay competition on law and eradication of harmful drugs

The Legal Aid Commission of Sri Lanka and the Ministry of Education will be conducting a national essay competition for students in Sri Lanka. The details of the competition are follows;

* Sponsors: The Legal Aid Commission of Sri Lanka and Sri Lanka Telecom

* Medium: Sinhala, Tamil and English

* For whom: Students in the G.C.E. Advanced Level classes

* Number of words: 2000-2500

* Closing Date for entries: September 15, 2007

* Prizes :

1st Prize Rs. 25,000.00

2nd Prize Rs. 20,000.00

3rd Prize Rs. 15,000.00

Rs. 5000.00 consolation prizes for each medium will be awarded to the next 10 best essays. In addition, a merit certificate will be awarded to each winner.

The essay should be certified by the principal of the school of the student.

The name and the address of the student and the address of the school should be written in English.

Pleas note that the the students who have any connection with the Legal Aid Commission of Sri Lanka are not eligible to take part in this competition.

Recommended reading:

Tobacco and Alcohol Authority Act No. 27 of 2007

Lankadeepa - Neethiye Sarana

Daily News - Legal Aid Page on Friday

Thinakaran - Legal Aid Page

All the essays should be directed to: The Chairman, Legal Aid Commission, 129, High Court Complex, Colombo 12. Email: schoolprogram@yahoo.com

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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.

Your questions should be addressed to - Daily News Legal Aid Page, Chairman, Legal Aid Commission, No. 129, Hulftsdorp Street, Colombo 12. Email: legalaid.dailynews@yahoo.com Website: www.lawaid.org

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Dial 1919

For information and advice from the Legal Aid Commission and Service Departments

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Quotes from Judgement Vandergert Vs Zurfick

Confidentiality of official matters

"Our Evidence Ordinance provided for the exclusion of official matters from evidence. Section 123 stipulates an absolute prohibition against the production of unpublished official Records relating to Affairs of State except with the permission of the officer at the Head of the Department concerned who shall give our withhold permission as he thinks fit subject to the control of the Minister.

Section 124 provides that no public officer shall be compelled to disclose communication made to him in official confidence when he considers that public interest would suffer by the disclosure and section 125 recognizes the right of the Magistrates and law enforcement officers to withhold the source information as to the commission of offences.

In England there appears to be no corresponding statutory provision but the situation covered by Sections 123, 124 and 125 are determined by the common law under which the exclusion of evidence is founded on grounds of public policy; nor is there any recognizable distinction between matters falling respectively within the scope of our sections 123 and 124.

All these matters are dealt within in England as Affairs of State. Phipson in Law of Evidence (page 196) enunciated the principle that "the witness may not be asked and will not be allowed to state facts or to produce documents the disclosure of which would be prejudicial to public service.

And this exclusion is not confined to official communications or documents but extends to all other likely to prejudice public interest". Vicount Simon L.C in Duncan vs Cammel Laird & Company (supra) stated that "the question whether the production of the documents would be injurious to the public service must be determined not by the Judge but by the Head of the Department having the custody of the paper; and if he is in attendance and states that in his opinion the production of the document would be injurious to the public service we think the Judge ought not to compel the production of it".

However in Conway vs Rimmer (supra) overruling Cammell Laird (supra) the House of Lords held "that the document should be produced for inspection by the House of Lords and if it was then found that disclosure would not be prejudicial to the public interest or that any possibility of such prejudice was insufficient to justify their being withheld disclosure should be ordered.

When there is a clash between public interest that harm should not be done to the nation or the public service by the disclosure of certain documents and that the Administration of Justice should not be frustrated by the withholding of them, their production will not be ordered if the possible injury to the nation or the public service is so grave that no other interest should be allowed to prevail over it, but where the possible injury is substantially less the Court must balance against each other the two public interests involved".

2000-2 SLR (Page 119-120),
Jayasinghe J.

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