Introduction

Displacement of citizens

Forcible displacement of human beings by state or non-state actors is an offence recognised in International Law and in our own Constitution. Our Constitution in Article 14 (1) declares that every citizen is entitled to the freedom of movement and of choosing his residence within Sri Lanka.

If this freedom is violated by Executive and Administrative action, a victim can file a fundamental rights case in the Supreme Court. The LAC and COHRE conducted a workshop recently with managers of internally displaced persons and their resettlement process in the Eastern Province and discussed many shortcomings in the management and resettlement process. Sri Lanka has experienced forced displacement starting from the ‘Black July of 1983’.

Thereafter, the armed conflict has displaced over two million persons from their hearths and homes. The December 2004 tsunami displaced another five hundred thousand, most of whom are now resettled in new homes but may be with shattered families. Of the two million war related displaced, over one million have gone abroad and sought asylum on the basis of lack of human security due to the ongoing conflict.

Many of them have successfully resettled in their host countries, such as the United Kingdom, Canada, Germany, France, the Scandinavian countries and Australia. Nearly 200,000 persons who sought asylum in India have been considered temporary refugees who could return to Sri Lanka when the human security situations improve.

This has not yet happened. Forcible displacement is a serious violation of a fundamental human right. Every civilised State takes measures to prevent displacement or provides quick and acceptable resettlement opportunities to their citizens.

Given the military constraints, authorities in Sri Lanka have done a passable job. But more could have been done if the concerned UN Agencies gave full cooperation. However, forcible displacement to clear a geographical area for reason of race, religion or caste is now considered an international crime against humanity.

These offences may one day be brought before the International Criminal tribunal in Rome. The fact that a few countries including the USA and Sri Lanka are still to accept the jurisdiction of the International Criminal Tribunal. This is rather discouraging.

Non State actors in Sri Lanka has also been accused of “ethnic cleansing” when in 1990 Muslim citizens residing in the Northern Province were forcibly driven away. These IDPs still languish in temporary shelters mainly in the Puttalam District.

They made several attempts to return to their homes but failed as the lands have been occupied by others. Our courts system in the area did not have the machinery to recover these lands even after protracted litigation.

Sri Lanka has not joined the international dialogue on refugees by signing 1951 Convention on Refugees or adopted the UN Guiding Principles on Management of Displaced Citizens. Many decisions are taken in ad hoc manner and displaced citizens, specially women, children and the old suffer grave hardships for no fault of their own.

The LAC with its specialized desk on Internally Displaced Persons will continue to urge the protection of this unfortunate part of our own citizens.

S.S. Wijeratne

Questions and Answers

Theft of items from hotel Guests

Question: I was staying in a Colombo Hotel, but at the time I noticed a few things had gone missing. However, once I vacated the Hotel, several months later I noticed that many of my clothing, toiletries, valuable items had been stolen. In the evening I had seen when we returned two room boys in our room. They had plenty of opportunity to steal since we stayed there over three weeks.

Would it be possible for the police to raid the suspects’ homes and retrieve the stolen items and could I accompany the Police? I do not want the suspects to be warned before hand otherwise they will dispose of the items.

The accumulated value of all the items is considerable and have a sentimental value. It is distressing for myself since the possessions were gathered over a lifetime and included toddlers clothing, footwear and most of goods were brand new since I have settled here. At the time we were homeless and had no place to reside and sought refuge at this hotel. Room service was actually self-service, thieving from the hotel guests.

Serena Fernando,Colombo

Answer: With regard to your question, first you have to inform the Hotel Management regarding the theft of items and thereafter you could make a complaint to the police. The police will thereafter proceed to take action against the suspects. The necessary proof should be made available to the police to conduct investigations.

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New Company Act No. 7 of 2007

Question: How does the new Company Act apply to the existing Companies?

Jerome Tissera, Wattala

Answer:In the application of the provisions of the Companies Act No. 7 of 2007 (“the Act”) to existing companies, it applies -

(a) In the case of a limited company, other than a company limited by guarantee, as if the company has been formed and registered under the provisions of the new Act as a limited company;

(b) In the case of a company limited by guarantee, as if the company had been formed and registered under the provisions of the new Act as a company limited by guarantee;

(c) In the case of a company other than a limited company, as if the company had been formed and registered under the provisions of the new Act as an unlimited company; and

(d) In the case of company which is a people’s company, as if it had been forced and registered under the provisions of the new Act as a limited company.

An existing company which is a private company, will continue under the new Act as a private company to which Part II of the new Act applies.

An existing company which is an offshore company, will continue under the new Act as an offshore company to which Part XI of the new Act applies.

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Objective of ETF

Question: What is the objective of the Employees Trust Fund and what is the rate of contribution?

G. Mavis, Moratuwa.

Answer: The main objective of the Fund is to provide benefits to members during employment and upon retirement.

The Employees’ Trust Fund Board (ETFB) administers the Fund, which is under the purview of the Ministry of Finance and Planning.

The ETF Act applies, to those employed in semi-government establishments, corporations, universities, statutory bodies, private sector enterprises, self-employed and migrant workers, (it is not applicable to those pensionable government servants). These categories of employers are required to contribute to the Fund. (Except self-employed and migrant workers)

Establishments or employers defined above are required to contribute a sum equal to three per cent of the total earning of each employee to the fund on a monthly basis. These funds are retained in favour of the employees and invested, enabling the Fund to pay an annual interest of three per cent, which is a statutory requirement, and dividend on earnings against the outstanding balance.

Those self-employed and migrant workers could also become members of the Fund on a voluntary basis by contributing a sum equal to 3% of their monthly earnings. However, such employees shall pay a minimum of Rs. 150 to the fund each month.

Subject to the receipt of contributions each month on a regular basis, an employee is eligible to remain a member of the Fund.

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Procedure for issues of passports in case of loss

Question: What is the procedure for issues of passports in lieu of passports reportedly lost? Also let me know to whom should the loss of a Passport be reported.

M. Jacob, Negombo.

Answer: With reference to your question, the procedure for issues of passports in lieu of passports reportedly lost is given below:

i) Obtain confirmation from the local Immigration Authorities that the applicant has not obtained citizenship of that country and confirmation of the legal status regarding his/her presence in that country.

ii) Ascertain the national status of the applicant by reference to documents produced - or from previous records, if available.

iii) If the travel document required is for return to Sri Lanka, an I.C.O.M./N.M.R.P. should be issued.

iv) If the applicant’s stay is lawful, or he is gainfully employed and is unlikely to be stranded for want of funds, issuing a normal passport may be considered.

v) If the nationality of the applicant is not ascertainable, summon the applicant for an interview and forward his application along with the record of findings and recommendation of the Mission to the Controller.

vi) If the applicant claims that he/she does not remember the number of the passport or NIC, and if only a copy of Birth Certificate is submitted, an interview of the applicant should be held by the officers of the Mission to establish his/her Sri Lankan Identity.

The loss of a Passport should be report to the Controller of Immigration and Emigration, Colombo, who maintains a register of lost passports.

The loss should also be reported to the nearest police station with a request that, in the event of recovery, the documents be forwarded to the Controller of Immigration and Emigration, Colombo.

If so recovered, the Passport will be restored to its holder, provided a new document has not been issued to him during the period the original document was reported lost. If recovered after issue of a new document, the original Passport should be cancelled.

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Services provided by Judicial Services Commission

Question: What type of services is provided by the Judicial Services Commission (known as Adhikarana Seva Commission Sabha)? Can (the public) seek solutions from this Institution to their problems arising at the courts or to whom should we complain about the injustices occurring at the courts? Your early reply is solicited.

Manjula Bowatte, Peradeniya.

Answer: The Judicial Services Commission may make -

(a) rules regarding schemes for recruitment and procedure for the appointment of judicial officers; and

(b) provision for such matters as are necessary or expedient for the exercise, performance and discharge of the powers, duties and functions of such Commission.

(c) The Chairman of the Judicial Services Commission or any Judge of the Supreme Court authorised by the Chairman shall have the full power and authority to inspect any Court of First Instance or the records, registers or other documents maintained in such court and to hold such inquiry as may be necessary.

If you need further assistance or any complaints to be made, you could contact - Judicial Services Commission, Mihindu Mawatha, Colombo 12, Tel No. 2424397.

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Closure of business

Question: I have been a Director of a Company which had to be closed down sometime back due to continued losses.

On an application made to the Department of Labour by the Company or termination of employment of workers, the Department after due inquiries ordered that compensation be paid to workers and stipulated a date for closure.

In the meantime the Directors of the Defunct Company sold their shares to another party who has agreed to re-open the factory and provide employment to all who were there before closure and continue the business. A MoU was drawn.

My question is whether the former Directors are still liable to pay compensation in view of the position that there has been no termination of employment because the present Directors have agreed to employ the workers and the Company continues as a going concern.

On what basis are wages to be computed in respect of the interim period during which the factory was kept closed?

K.D. Peiris, Wattala.

Answer: According to you, the Company had made an application to the Commissioner of Labour for the termination of employment of all employees.

An inquiry has been held by the Commissioner. After hearing evidence the Commissioner has granted permission to terminate the services of the employees and awarded compensation.

Under normal circumstances when computing compensation, the Commissioner take into consideration the period where wages were not paid and also gratuity is computed separately. Your question is not clear. In order to advise you in the matter, please send us a copy of your application to the Commissioner General of Labour and the order made in that connection.

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Termination of Employment

Question: I wish to know whether the services of a permanent employee could be terminated after issuing three warning letters on account of unsatisfactory performance. If this is not in order, how should an Employer deal with an unwanted employee?

H. Siriwardena, Colombo 5.

Answer: In order to advise you in the matter, please let us know the nature of the work the employee was doing and forward us the copies of the letters warning issued to the employee for our perusal. After perusing the same, we could advise you the course of action to be taken by the Employer.

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Non payment of EPF contributions

Question: I am an Executive working in a Company in Pettah from 10.5.1999. Contributions to EPF have been made by the company up to 1st July, 2004. I have received statements from Central Bank confirming same. The contributions have been made from August 2004 but deductions at the rate of 8 per cent has been made from my salary.

On a complaint made to the Asst. Commissioner of Labour, Colombo North, Labour Secretariat, Colombo 5 by an employee whose service were terminated in the year 2006. The Labour Officer conducted an inquiry and directed the Company by letter dated 10.07.2007 to send the arrears of EPF contributions to Central Bank.

The Company had sent to Central Bank EPF contributions from August 2004 to December 2005 on 15.02.2007 without ‘C’ Returns and surcharges. The company has not sent any contributions thereafter but continues to deduct 8 per cent from my salary. I am now 53 years old and according to my letter of appointment I will have to retire on 27.10.2008. I can claim EPF benefits on completing 55 years on 27.10.2008.

As a result of the delay in payment of EPF contributions to the Central Bank and failure to send ‘C’ Returns in respect of the payment for this period August 2004 to December 2005 and also the failure to send the contributions for the period January 2006 onwards.

Please advise me as to how to obtain the contributions for the period January 2006 onwards and also the interest due to me for the delay in payment of contributions.

M. Jean Perera, Kalubowila.

Answer: You are advised to make a complaint to the Assistant Commissioner of Labour, Colombo North, Labour Secretariat, Colombo 5 regarding non-payment of EPF contributions from January 2006 onwards and also the failure to send ‘C’ Returns for the period August 2004 to December 2005.

The Asst. Commissioner of Labour will take appropriate action in this regard.

In respect of the loss of interest as a result of the delay in payment of contributions the Monetary Board of the Central Bank is empowered under Section 2 of the EPF Amendment Act No. 1 of 1985 with the concurrence of the Minister to decide on the amount of surcharge that could be paid to you.

For the period August 2004 to December 2005 for which no ‘C’ Returns has been sent the Central Bank will not be able to credit the individual accounts.

The Amendment Act No. 42 of 1988 has provided for -

(i) the opening of a special suspense account to which contributions without ‘C’ Returns will be credited.

(ii) As soon as the correct ‘C’ Returns are received the monies of the individual accounts are transferred and interest is paid on the sum due from the date of receipt of the money to the date of transfer.

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Getting copy of child’s birth certificate

Question: My second child was born in France. At that time we were employed there. When the child was born, we registered him at the Sri Lankan Embassy in France. We wish to get a certified copy of his Birth Certificate. Please let me know as to how I could obtain the same and to which Department should we go to?

Minoli,France.

Answer: You can get the certified copy of the Birth Certificate from the Central Record Room, Maligawatte, Colombo 10. Tel. No. 2329773. Only births which have been registered in the Sri Lankan Embassies abroad could obtain certified copies of same.

Quotes from Judgement

Judicial Aloofness

“In the very nature of things, a measure of aloofness attaches to judicial office. This, is let me at once say, not because of any vaunted superiority - for the most past, judges are humble men very conscious of their own limitations - or because of any unwarranted ivory tower concept.

It is necessarily flows from the fact that, by virtue of his office, a judge is .... required to be wholly divorced from politics ... Consequently it behoves a judge not only to conduct himself in a manner compatible with his office but also to endeavour at all times to avoid creating, however unintentionally, any impression that he holds views which might, albeit perhaps unwarrantedly, be construed as evidence of some sort of prejudice regarding or prejudging of, some issue which, directly or indirectly, may conceivably subsequently fall for decision in this court.

For all these reasons, the expression in public, and in particular in the Press or other media, by judges of opinions in controversial issues, whether or not such issues have political overtones, is to be deprecated”.

See, 1972 (89) SALJ 23, 32; quoted by Richard Goldstone, In “Do Judges Speak Out?” 111 SALJ 258, 259 (1994)

Apprentice’s Notebook - Page 2

May the Devas bless all those senior lawyers who offered to take me as an Apprentice after reading my Notebook. I wrote my note two weeks ago but after corrections it was published only last Friday.

Many Senior Lawyers and some famous Law Firms came to my rescue last Friday itself. The LAC Chairman informed me that a Senior Partner of a prestigious legal firm came and offered me a place and a few others. I was told that it was not correct to mention names but whenever I go to my village temple I’ll give merit for their kindness. Similarly, a leading President’s Counsel offered me a place in his crowded Chambers.

In the Corporate Law Classes it was gossip that if you are selected to this President’s Counsel’s Chambers then your future is made. He is a Law Teacher of great repute. I pray for merit to accrue on him to enable him to make the Sri Lankan corporate jungle a safer place to move about. As you could guess I get help to compile this note from a kind lady who has helped many lawyers to write their opinion in English.

I am overwhelmed by the kindness extended to me by many members of my future profession. I was very pleased and telephoned my father who has bought a CDMA phone after the last paddy harvest thinking that I will need it as a Lawyer. He of course asked me to jump and grab the offers. But I have a small problem.

I never expected my note to be published and such kindness to pour in. One of my friends introduced me to a Senior who was a former schoolteacher now a middling lawyer. He was an English Teacher before he took to Law. He is elderly, has knowledge of good principles more than good forensic ability. My friend was his first Apprentice and I am the second to obtain the letter.

I feel sorry to leave my Senior and go to a powerful senior and Law Firm because I fear to hurt his feelings. This is a weak village custom. We respect even our kindergarten teachers till we die. May be I am one of these ‘village idiots’ who will never make it in the global world.

I have overheard my new senior telling people that he has got two juniors in his Chambers. I think he is proud. Every evening he doesn’t have clients and those days he teaches us drafting in English.

Even though, legal experience under my new senior will not take us many places, I hate to give a kind elderly gentleman pain of mind. After all the Law is all about correct human behaviour.

Dilani Kumari