Introduction - Geriatric challenges

Geriatrics is the branch in medical science that treats the diseases of the elderly. This word has developed from Greek word 'Geron' meaning 'old' which is related to 'Jara' in Sanskrit, familiar word to Sri Lankans. The global phenomenon of the historical increase of elder's cohort in society, has convinced informed policy makers to increase the ratio of Geriatric doctors in the medical corps.

In Sri Lanka, the Protection of Rights of Elders Act No. 9 of 2000 was enacted without any political division in Parliament. The first National Council of Elders was established in 2002 which was entrusted with responsibilities to make recommendations to Government regarding measures that should be taken to protect and strengthen our senior citizens who approximately numbers 2.4 million.

In Sri Lanka, we do not have a single specialized Geriatrician. No Medical College has a Department specialized in Geriatrics. Even the UN Agency dealing with population matters UNFPA has not taken the initiative to create awareness about the urgent need to introduce Geriatric medical studies to the country. International Institute of Aging based in Malta has ignored but conducted Geriatric training in countries like Thailand and India which has comparatively a lesser ratio of elders in society.

Sri Lanka is not alone in Geriatric neglect. According to Dr. Felix Silverstone, the doyen of Geriatrics from the Brooklin Institute of Medicine in New York, the Geriatric Medicine even in the United States is a neglected and unfashionable branch of medicine.

The number of specialized Geriatricia passing out from US Medical Schools has been declining in the past few years. The only country which has a sound Geriatric Medical System is Japan which has the largest percentage of elders in the world.

As Japan is considered the most compassionate and consistent to Sri Lanka's development program, the Health Authorities should approach Japan for transfer of Geriatric expertise.

The National Council of Elders has approached the private sector in Sri Lanka to adopt elder friendly policies without much success.

As the promised comprehensive social security system for elders is slow in arriving as all political promises, the private sector if genuine about their much advertised commitment to corporate social responsibility should support the efforts of the National Council to establish elders' sponsorship program.

Despite two years efforts only one Company has accepted to sponsor the care and well-being of three helpless elders. This is indeed pathetic.

Another challenge faced by National Council on elders is to create awareness among the elders about best Geriatric practices which would take many elders out of the dependency syndrome. Empowering the elders' health wise with correct advice on nutrition and exercise should be part of a national effort.

In USA, the American Association of Retired Persons (AARP) with 32 million numbers is the most powerful organization influencing the political fortunes. If Sri Lanka's political leaders continue to ignore challenges associated with 2.5 million elders or one fifth of the voting population that can becomes the key factor in changing political fortunes.

S.S. Wijeratne

Quotes from Judgements

S. P. Gupta & Others Vs Union of India & others

Judicial Statesman with Social Vision

"Now this approach to the judicial function may be all right for a stable and static society but not for a society pulsating with urges of gender justice, minorities justice, dalit {sic.} justice and equal justice between chronic unequals.

Where the contest is between those who are socially or economically unequal, the judicial process may prove disastrous from the point of view of social justice, if the judge adopts a merely passive and negative role and does not adopt a positive and creative approach.

The judiciary cannot remain a bystander or spectator but it must become an active participant in the judicial process ready to use the law in the service of social justice through a pro-active goal oriented approach.

But this cannot be achieved unless we have judicial cadres who share the fighting faith of the Constitution and who are imbued with constitutional values ... What is necessary is to have Judges who are prepared to fashion new tools, forge new methods, innovate new strategies and evolve a new jurisprudence, who are judicial statesmen with a social vision and a creative faculty and who have, above all a deep sense of commitment to the Constitution with an activist approach and an obligation of accountability, not to any party in power nor to the opposition nor to the classes which are vociferous but to the half hungry millions of India who are continually denied their basic human rights.

We need judges who are alive to these socio-economic realities of Indian life, who are anxious to wipe every tear from every eye, who have faith in the Constitutional values and who are ready to use law as an instrument for achieving Constitutional objectives.

This has to be the broad blueprint of the appointment process for the higher echelons of the judicial service.

It is only if appointments of Judges made with these considerations weighing predominantly with the appointing authority that we can have a truly independent judiciary committed to the Constitution and to the people of India...

P. N. Bhagwati J, A.I.R. 1982 S.C. - 149 para, 26 of 196-198

Questions and answers

Partition of property

Question: I own half share of a house in Colombo and other half is occupied by my sister. It was given as dowry. In 1981 I left the house and came to live with my husband and work there. At that time my parents were living. For the past 9 years they too are living separately.

Now the whole house is being occupied by my sister's family. Several attempts to get my share through discussion have failed. My family is undergoing difficulties due to this. I am a retired Principal and I don't want to file a case as I can't afford and also it takes many years.

I am seeking your assistance to get my share in the property.

Zehiniya, Avissawella.

Answer: You must first try to settle the matter peacefully. Otherwise you have to file a partition case in the District Court where the property is situated. After the case is filed, court will consider the relevant facts submitted. The court will call for the valuation report and verify the extent of the property and whether it could be divided amicably.

Sometimes court can order to sell the property and divide the sale proceeds. However, situation differs according to the personal laws applicable. If you need further information you can visit our Legal Aid Centre, Court Complex at Avissawella and meet Yashodha Vidyaratne, Attorney-at-Law.

Implementation of recommendation given by HRC

Question: Can I implement the recommendation given in my favour by the Human Rights Commission inspite of the other party refusing to implement the said recommendation.

P. Gomez, Gampola.

Answer: According to your letter you have mentioned that you already have a recommendation in your favour. Under the Human Rights Commission Act Section 15 (7), it is the duty of the other party to obey the recommendation.

If not they have to submit a letter to the Human Rights Commission explaining the ground on which they refused to implement the recommendation within the stipulated period. The only power is for the Human Rights Commission to report the matter to the President, who will table the report in Parliament - Section 15(8) of the HRC Act.

Re: Statutory holidays

Question: I am employed in a mercantile establishment and would like to know the following:

(a) How many statutory holidays are there as at present?

(b) (i) What is the law that is applicable if an employee work on a statutory holiday in a mercantile establishment?

(ii) Work on a statutory holiday coinciding with weekly holidays.

M. Zareen, Battaramulla.

Answer:

(a) There are 8 statutory holidays as at present. They are -

01. Tamil Thai Pongal Day.

02. National Day.

03. Milad-Un-Nabi (Holy Prophet Mohamed's Birthday)

04. Day prior to Sinhala and Tamil New Year

05. Sinhala and Tamil New Year.

06. May Day

07. Day following Vesak Full Moon Poya Day

08. Christmas Day

(b) (i) The law that is applicable is the Shop and Office Employees Act. If an employee working in a mercantile establishment works on a statutory holiday, the employer is required to grant a paid holiday in lieu prior to the 31st of December of that year or pay an extra day's wage. Strictly speaking in terms of the Act the approval of the Commissioner of Labour is required.

(ii) Where Statutory Holiday coincides with weekly holidays or half holiday, that day would be treated as the statutory holiday and the weekly holiday or the half holiday must be allowed on other days within the course of the week or the week thereafter.

Can employer impose fine for reporting late for work?

Question: I am working as a clerk in a mercantile establishment in Colombo 3. I have already served two years with the company. Although I am expected to report for work daily at 8 a.m., I am unable to do so because I have to look after my old parents and see that my two children who are 8 years and 10 years have their morning breakfast and get ready to go to school on time.

As a result I go late to work between 8.30 a.m. and 9.00 a.m. and my employer as a punishment for reporting late has imposed Rs. 500. The entire amount was deducted from May/June salary. Please advise me -

(a) Whether the employer can impose a fine reporting late for work?

(b) If so, whether it could be done without my consent?

(c) Can the employer recover from my salary the entire amount of the fine at any one time?

(d) If not what is the maximum an employer could recover from the salary at any one time?

S. S. Nadika, Colombo 6.

Answer: (a) Yes. The employer has the right to punish an employee by way of imposing a fine for late attendance at work without reasonable excuse.

(b) No employer could impose a fine on an employee as a punishment without the consent of the employee and authorised in writing by the Commissioner General of Labour.

(c) The employer cannot recover the entire amount of the fine at any one time.

(d) The aggregate amount of the deductions made in respect of times at any one time should not exceed 5 per cent of the remuneration earned by the employee during the period during which such fine was imposed.

The amount deducted as fine should be used for the benefit of the employees.

Consumer Affairs Authority Act No. 9 of 2003

Question: I would like to know when the Consumer Affairs Authority was passed in Parliament and the objectives of this Act?

I would also like to know what you mean by the definition Service under the said Act.

Ajit Wedasinghe, Battaramulla.

Answer: The Consumer Affairs Authority Act was passed in Parliament on 9th January 2003 and it came into operation when it was certified on 17th March 2003. The Authority comes under the purview of the Ministry of Commerce and Consumer Affairs. Its objectives are:

(a) The protection of consumers against marketing of goods and provisions of services which are hazardous to their life and property;

(b) The protection of consumers against unfair trade practices and to guarantee that consumers' interests shall be given due consideration;

(c) ensuring that wherever possible consumers have adequate access to goods and services at competitive prices; and

(d) seeking redress against unfair trade practices, restrictive trade practices or any other form of exploitation of consumers by traders.

The definition Service means service of any description which is made available to actual or potential user and includes:

(a) Banking, financing, insurance, shipping and entertainment.

(b) The construction, production, manufacture, supply, storage, maintenance, repair, treatment, cleaning, processing or alteration of goods.

(c) Services in connection with the import, export or distribution of goods.

(d) The transportation of goods and passengers.

(e) The cleaning of building premises.

(f) The sale and supply of any utility services including electricity, water, gas and telecommunication.

(g) The provisions of information technology and communication.

(h) Professional services such as accounting, auditing, legal, medical and health surveying, architecture and engineering.

Can disabled child get benefit of the W&OP?

Question: I am a Government teacher. I have made contributions to the W&OP Fund. I have two children - a son and daughter. My daughter is disabled. She is 27 years old.

Please let me know whether under the Widows/Widowers and Orphans Pension Scheme, my disabled daughter could claim benefits from the said Fund?

Amarawansha, Narammala.

Answer: Under the Widows/Widowers and Orphans Pension, benefits can be claimed from the following persons:

* Widow/Widower where the spouse is dead.

* All male children under 21 years of age.

* All unmarried female children under 21 years of age.

* All unemployed male children over 21 years but less than 26 years of age.

* All unemployed and unmarried female children over 21 years but less than 26 years of age.

* Disabled orphans above the age of 26 years decided by the Govt. Medical Board to be mentally and physically incapacitated to earn their livelihood.

According to your letter you have mentioned that you have a disabled daughter. If you are the father of your disabled child, you can request the Pension Department to grant the W&OP benefits to your disabled child after your retirement.

It is advisable to include the personal details of your disabled child in your personal file. Your disabled child can get your pension benefits during her life time. If you need further clarification you may call the Pensions Department - Tel. No. 2431647.

Is approval required from Municipal Council to start retail boutique?

Question: I'm planning to start a retail boutique in Negombo area. I currently own a house in Negombo and plan to start the business in this premises. Since the objective is to keep the business to a boutique style and not a typical 'retail shop' there will be no changes or additions to the existing house plan.

Apart from registering the business name what other approvals and permissions should I seek, specially are there any approvals required from the Negombo Municipal Council.

Salinda Perera, Negombo.

Answer: Regarding your question it is necessary to get prior approval from the Negombo Municipal Council. Tel. No. 031 2224283. The following documents should be produced to the Municipal Council:

1. Three copies of the housing plan.

2. Building application form, duly filled.

3. Any other documents pertaining to your house.

Is transfer of land and premises situated in crown land possible?

Question: I have been in occupation of premises situated in a crown land for the past 50 years. The said land had been alienated on a lease of 99 years with effect from 1st January, 1950. I continue to pay the rent and maintain all assets on the said premises whereas the owners have not done anything for the last 50 years.

Please let me know what legal steps I could take in order to transfer the said premises in respect of the unexpired period of the above lease in my favour?

M. Gunasiri, Meegoda.

Answer: According to your question, it is very clear that you are occupying the said crown land on a lease of 99 years. Therefore, after completing 99 years you have to hand over vacant possession of the said land and premises to the Lessor (the Government).

You have no cause of action to file against the Lessor as you have no prescriptive rights against a state land.

Marriage laws in Sri Lanka

Question: I am a keen reader of your Daily News Legal Aid Page. This page provides useful articles as well as answers to legal questions raised by individuals in different parts of the island. I would be very grateful if you could let me know through your page the different types of marriage laws in Sri Lanka and its requirements.

Keen Reader of Daily News Legal Aid Page

Answer: The body of law relating to marriage consists of the general law, customary law and personal law. Tamils are governed by the general law in most marriage-related matters, whereas Kandyan Sinhalese can choose to be governed by the general law or their customary laws. Muslims are governed by Muslim personal law.

The 1907 Marriage Registration Ordinance constitutes the general law on marriage in Sri Lanka. The Ordinance applies to marriage between Tamils and between individuals of differing ethic and religious communities.

Requirements: Pursuant to a 1995 amendment to the Ordinance, the minimum age of marriage was raised to 18 for both men and women. A subsequent provision, however, authorises parents to consent to a marriage involving a minor. If a parent unreasonably withholds consent, a court may authorise the marriage.

Courts have held, however, that a parent's refusal to give consent will only be overruled if the court is satisfied that the refusal is without cause and contrary to the interest of the minor. Despite the requirement of parental consent for a minor to marry, the Ordinance provides that lack of proof of such consent does not render invalid marriages registered under the Ordinance.

This exception does not apply to customary marriages registered under the Ordinance. This exception does not apply to customary marriages because such marriages would not have satisfied the registration requirement.

However, courts have held in cases of unregistered marriages as well that want of consent would not invalidate such a marriage after it had been consummated.