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DateLine Friday, 6 July 2007

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Introduction- Shrinking and failing States

The term failed State is both a political and a lose legal expression to describe a country.

It is the worst form of derogatory term whether used locally or internationally. It is imperative that local political critics and or international actors are cautious in using this term.

The US based non-governmental Research Fund for Peace and Foreign Policy Magazine (FP & FP) for the last three years have coined an index to describe the list of failed States. No Government is consulted by the index makers before they categorize a State.

Consultation is basic international norm when you publish derogatory material about other countries.

A Failed State can also be a shrinking state. Shrinking states are those countries whose Government has contracted with the International Market Sector to perform state responsibilities like Health, Education and even aspects of Human Security.

Global Octopus envelope in accountancy, shipping, international trade, insurance, entertainment, arms procurement, pharmaceutical, cement and milk foods. These essential social justice services were hitherto performed by the state as part of state social responsibility.

As Milton Friedman stated famously in 1938, "the main and only function of business is to make and increase profits". Social justice is not yet a part of corporate responsibility.

In this context almost all the states except still surviving Socialist countries have failed to ensure social justice as eloquently argued by Susan Strange in her famous book the "Retreat of the State" and Kenichi Ohmage in "The End of the Nation State".

The FP and FP index on failed states on the other hand in compiling their index has used secondary evidence of published articles and press clippings using a computerized twelve indicators.

1. Demographic pressures.

2. Movement of Refugees and IDPs.

3. Group grievances.

4. Chronic Human Rights Violations.

5. Uneven economic development along group lines.

6. Economic destruction.

7. Delegitization of the State.

8. Deterioration of public service.

9. Decline of rule of law.

10. Security apparatus becoming State within a State.

11. Rise of functionalist elites.

12. Intervention by foreign states.

Within the first 35 of the failed States, many are Sub-Sahran African States who were former colonies with Sudan leading the list. South Asian countries including nuclear state Pakistan, Bangladesh, Nepal are considered more failed than Sri Lanka which is placed 25th. Other than Nepal all were former British Colonies.

The Sri Lankan state should take measures to slow down the privatizing of its social responsibilities and elevate the effectiveness of the human rights protection institutions like the Legal Aid Commission, Human Rights Commission and the office of Ombudsman by providing the necessary resources.

If the international community is genuinely interested to improve the Human Rights situation in Sri Lankan people they should consider helping these institutions.

S.S. Wijeratne

Questions and answers

Maintenance for disabled child

Question: My neighbour has a disabled child. This child is being neglected very badly by his father. I want to know whether there is an provision for his mother to ask for maintenance for this child.

KusumWaththala

Answer: Under the Maintenance Ordinance Amended Act No. 37 of 1999, there is a provision to ask for maintenance to a disabled child from their parents. Under this Act the Court will look at the circumstances of the case. In this regard the paternity has to be established. Today the DNA tests provide such facility.

An application for maintenance may be made -

(a) where such application is for the maintenance of a child or disabled offspring, by such child or disabled offspring or by any person who has custody of such child or disabled offspring.

The application for maintenance may be made to the Magistrate's Court within whose jurisdiction the applicant or the person in respect of whom the application is made or the person against whom such application is made resides.

Fraudulent job agencies

Question: I am a poor villager from the Puttalam area. I decided to go to the Middle East for employment. There are so many agencies in our village.

The name board appears that all agencies are registered. However, I understand that we have to recheck before going abroad. Please let me know how to check the genuineness of these job agencies?

P. Seelawathie, Puttalam

Answer: According to Section 24, all Job Agencies should be registered under the Sri Lanka Bureau of Foreign Employment Act No. 21 of 1985.

If you are aware of the name/licence number of the Agency or its address, you can recheck with the Foreign Employment Bureau, No. 214, Denzil Kobbekaduwa Mawatha, Koswatte, Battaramulla, Tel NO. 2864101-5. Although all Job Agencies are registered, some of them have been blacklisted from the Foreign Employment Bureau.

Therefore, it is always advisable to recheck before your departure as it will prevent you from falling into unnecessary difficulties abroad.

Documents necessary for inclusion of children in parents' passport

Question: What are the documents necessary for the inclusion of children in parents' passport. Kindly let me know.

M. Rosemary Kern, Colombo 9

Answer: The children should be below 16 years of age at the time of application to be included in their parents' passports. When adding children, the following documents with Photostat copies should be produced. (Originals will be returned after necessary action):-

(a) Passport of the Applicant

(b) Birth Certificate of each child to be included.

(d) Passports of spouse or an affidavit if passport/s not obtained

(e) Death Certificate it the spouse died

(f) Divorce Certificate is divorced

(g) Colour photographs of each child (size 2.5 cm 3 cm) when adding children should be pasted in the Form 35 c and the photograph pasted at the right side should be attested by a Civil List Officer of the Sri Lankan Government, Administrative Service, Education Administrative Service, Engineering Service, Accountants Service, Justice of the Peace, Qualified Medical Practitioner or by an Attorney-at-Law.

(h) There will be no additional charge if the children are added while obtaining a new passport. For the addition or deletion of child/children to the existing passport will be charged Rs. 250.

Protection Order under the Domestic Violence Act

Question - If a protection order has been obtained under the Domestic Violence Act No. 34 of 2005, what are the prohibitions laid down under the said Act.

Andrew David,Wennappuwa

Answer: Under Sections 10, 11 & 12 of the Domestic Violence Act No. 34 of 2005:

10 (a) A protection Order -

Shall, prohibit the respondent from committing or causing the commission of, any act of domestic violence;

(2) A protection Order shall remain in force for a period not exceeding 12 months as specified therein.

11 (1) The Court may, by means of an Interim Order or Protection Order prohibit the respondent from:-

(a) entering a residence or any specified part thereof, shared by the aggrieved person and the respondent;

(b) entering the aggrieved person's -

(i) residence;

(ii) place of employment;

(iii) school;

entering any shelter in which the aggrieved person may be temporarily accommodated;

(c) Preventing the aggrieved person who ordinarily lives or has lived in a shared residence from entering or remaining in the shared residence or a specified part of the shared residence;

(d) Occupying the shared residence;

(e) Having contact with any child of the aggrieved person or having contact with such child other than on the satisfaction of such conditions as it may consider appropriate, where the Court is satisfied that it is in the best interest of such child;

(f) Preventing the aggrieved person from using or having access to shared resources;

(g) Contacting or attempting to establish contact with the aggrieved person in any manner whatsoever;

(h) Contacting or attempting to establish contact with the aggrieved person in any manner whatsoever;

(i) Committing acts of violence against any other person, whether it be a relative, friend, social worker or medical officer, who may be assisting the aggrieved person;

(j) Following the aggrieved person around as to cause a nuisance;

(k) Engaging in such other conduct as in the opinion of the Court will be detrimental to the safety, health or well-being of the aggrieved person or other person who may require protection from the respondent as the Court may specify in the Protection Order;

(l) Selling, transferring, alienating or encumbering the matrimonial home so as to place the aggrieved person in a destitute position.

(2)In imposing any prohibition referred to in subsection (1) of the Court shall have regard to -

(a) the need for the accommodation of the aggrieved person or the children (if any) of the aggrieved person and the children (if any) of the respondent;

(b) any hardship that may be caused to the respondent or to any other person as a result of the making of the Order.

12. (1) Where a Protection order has been made and where the Court is satisfied that it is reasonably necessary to protect and provide for the immediate safety, health or welfare of the aggrieved person.

Ejection of tenant

Question: Please let me know on what grounds can a tenant be ejected from the premises? Kindly explain in detail.

B. Marcus, Wattala

Answer: If the premises are subject to the Rent Act the landlord can eject the tenant only on one of the grounds set out in the Act. Under Section 22 (1) as amended, where the standard rent of the premises does not exceed Rs. 100 per month the grounds of ejectment are as follows.

(a) arrears of rent for 3 months or more;

(b) if the premises, having been let to the tenant on or after 1st March 1972, are reasonably required for occupation as a residence for the landlord or any member of his family, or for the trade, business, profession vocation or employment of the landlord; (bb) if the premises, having been let to the tenant prior to 1st March 1972, are reasonably required as a residence for the landlord or any member of his family, and the landlord does not own more than one residential premises;

(c) if the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord and that service or employment has ceased.

(d) if the tenant or anyone residing with him has been guilty of conduct which is a nuisance to adjoining occupiers, or has been convicted of using the premises for an immoral or illegal purpose, or the condition of the premises has deteriorated owing to the acts or omissions of the tenant or such other person.

Where the standard rent of the premises exceeds Rs. 100 per month, the grounds of ejectment are as follows:-

(a) arrears of rent for one month or more;

(b) if the premises are reasonably required as a residence for the landlord or any member of his family, or for the trade, business, profession, vocation or employment of the landlord;

(bb) Where the landlord is the owner of not more than one residential premises and

(i) the premises are reasonably required as a residence for the landlord or any member of his family; or

(ii) the landlord has, prior to the institution of the action, deposited a sum equivalent to 5 years' rent with the Commissioner of National Housing for payment to the tenant.

In all these instances the landlord, before filing action, must give tenant written notice to quit. The length of notice required is specified in the Rent Act and varies according to the grounds on which ejectment is sought.

There are also certain other restrictions and qualifications set out in the Act, and anyone contemplating or advising on ejectment under these provisions should carefully study Section 22 of the Rent Act with all its subsections.

Another important ground for ejectment is subletting the premises without the written consent of the landlord.

The rules and restrictions of Section 22 have no application to such cases and the only matter to be established is that there has been subletting within the meaning of the Act.

The Act does not specifically require a notice to quit in subletting cases, but one month's notice is often sent as a matter of prudence.

What kind of job entitles you to EPF membership?

Question: I would like to know what kind of job entitles you to EPF membership? Please let me know through your valuable Legal Aid Page. M. Winifreeda, Jaela.

Answer:: You are entitled to membership in the Employees' Provident Fund from the very first day you are recruited to any one of the following categories of employment:-

1. Employees who are permanent, non-permanent, apprentices, temporary, casual, who work in shifts during the day; those who work for a period less than one full day.

2. Employees who work on piece rate, on contract basis, on commission basis, on quantum of work basis.

3. Employees on monthly pay, weekly pay, daily pay.

4. All ranks of employees from Labour grades to Management grades.

All the above mentioned categories of employees, whether male or female, if remunerated in cash or any other manner, are entitled to membership in the Employees' Provident Fund.

Employer refusing to issue EPF B Card and completed EPF/ETF claim forms

Question: I was working at the Namunukula Bottling Company. Two years ago I resigned from my employment. I requested for my EPF B Card and the duly perfected EPF/ETF claim forms to be sent to me which has not been attended to, nor had been acknowledged. Please advice me as to what action I could take against the said Company.

Anoma de Alwis, Mahawewa.

Answer: Since the Company in which you were employed is situated at Namunukula, you should write a letter to the Assistant Commissioner of Labour, Labour Office, Nuwara Eliya, 4/4-4/5, Hill Street, Nuwara Eliya (Tel. No. 052 2222542), explaining the dispute.

The Assistant Commissioner of Labour will go through your complaint and thereafter issue notice on the respective parties to attend an inquiry. At this inquiry both parties will be heard and the Assistant Commissioner of Labour will make his order accordingly.

If you need any further assistance, you may kindly call over at our Legal Aid Center, Court Complex, Chilaw (Tel.No. 032-2222175).

We note from your letter that you are residing at Mahawewa. So the nearest Center for you is the Legal Aid Center situated in Chilaw. Mr. Pradeep Shanthapriya, Attorney-at-Law, is the Legal Officer of this Center.

Cana housing loan be obtained with balance in EPF as security?

Question: I have been employed in a mercantile firm for the last 20 years. I intend obtaining a housing loan from a bank to construct my house. Is it possible for me to get a loan from my EPF account and let me know the procedure to follow. M. Athula,Kaduwela.

Answer: Yes.

You can obtain a loan from an approved bank upto 3/4th (i.e. 75%) of the balance lying to your credit in the EPF for any following purposes:-

1. Construction of a house.

2. Purchase of a house/ building site.

3. Improvement to an existing house.

Kindly obtain two housing loan application forms from the nearest Labour Office and complete them and hand them over to the Labour Office nearest to the block of land on which you wish to build your house. The Labour Office will then ascertain your balance in your account with the EPF from the Central.

Thereafter the Labour Office will recommend to the intended lending institution that 75% of that balance or the amount you are applying for, which ever is less, be paid to you.

The State Mortgage and Investment Bank has agreed to pay a loan upto 50% of the balance in the account of an employee who is not in service at present.

Quotes from judgements

Touting

"evil of touting has been in existence since ancient times and still growing menace, and the Bar is open to the accusation of having done nothing tangible to eradicate this unmitigated evil. The persons most affected by this system are the junior lawyers as a class.

Some lawyers may well expound unblushingly the doctrine of getting on, getting honour and at last getting honest. If it generally known that a person, however, honest has got on and got honour through the patronage of touts, the Bar should decline to show such a man any honour or consideration whatsoever.

We impress upon the Bar Council of India and the State Bar Councils that if they still take strong action to eradicate this evil, it would lead to a high standard of propriety and professional rectitude which would make it impossible for a tout to turn a penny within the precincts of the law courts"61.

61 P.D. Khandekar V. Bar Council of India, 1984 (1) SCR 414, 426