Introduction - Women without rights

It is customary for political leaders and financial managers to remind us about the importance of foreign remittances annually made by Sri Lankan migrant workers abroad.

Earleryi this year the media published reports of Rs. 280 billion remitted by migrant workers in 2006, bulk of whom are female domestic workers in the Middle East.

The rights of women to seek employment here or abroad is a fundamental right which the State should protect without imposing arbitrary restrictions on women's freedom.

However, the State and the international community should ensure that the basic human rights of these women are protected in the host countries where the legal systems may be different from the internationally accepted standards of justice or workers rights.

It is only a few weeks ago that deep voices of protest was heard about 17-year-old Rizana Nazik from Sri Lanka who was sentenced to death in Saudi Arabia.

The Human Rights Watch US based INGO published two harrowing reports about the deplorable treatment of domestic works in Saudi Arabia. Hydro-Carbon powers in the Middle East did not care about these reports.

The critics were rendered silent when the price of a barrel of crude oil reached nearly US dollars 85. It appears that oil was more important to the international community that the rights of women working as domestic victims of sexual abuse.

What has our successive Governments done to alleviate the plight of the women workers who are virtually 'white slaves'? Nothing substantial or significant.

No leader wants to kill the hen that is laying the golden eggs. They argue. These hens were living a dismal life in remote Sri Lankan villages. They were starving. Now at least they receive food and clothing.

No country has developed in the long-term by exporting the younger women population as virtual slaves to oil rich countries on contract basis. Most of the women workers are in the reproductive age from 20 - 35 or young mothers who leave their children behind without motherly protection.

The Ministry of Social Services along with the National Center for Victims of Crime (NCVC) conducted a survey on the most tabood crime, incest or sexual relations with blood relatives.

The sample survey which targeted Moneragala, Anuradhapura and Polonnaruwa districts reveal that 70% of incest victims came from homes where the mother was working in foreign countries.

Sri Lanka has also hit a birth dearth. Our mothers do not beget the minimum of two children to sustain the population or the economy.

The adverse effects of the phenomenon are already visible. The younger population has dramatically declined leading to over 1000 primary schools to be closed. The war has consumed young male lives and migrant women workers abroad prevent the blossoming of young mothers' fertility rates.

If we cannot stop women migrant domestic workers because of economic reasons at least let the authorities like those in India guarantee a minimum respectable wage for these helpless women. India recently announced that the minimum wage for Indian migrant workers should be US$ 400.

With a guaranteed deposits of US$ 2500 per worker for involuntary repatriation when needed. These measures are salutary to safeguard the dignity of women workers abroad who are low without rights.

S.S. Wijeratne

Questions and Answers

Elders protection law

Question:

I am a 85 year old non-pensioner without any income. One of my daughters aboard keeps my wife and myself alive with a meager allowance.

I applied to the Elders Maintenance Board on 30th March, 2006 to obtain maintenance from my six children. Although the Board summoned the children in Sri Lanka for inquiry on three occasions, nothing has been done to help us.

Please advice to what authority I may refer my grievance.

D. H. de Saram, Dehiwala

Answer: We have referred your matter to our Elders Unit at the Legal Aid Commission. Our Unit has discussed this matter with the Elders Maintenance Board and they have instructed us to obtain the complaint number. Therefore, please call over at our Head Office with the complaint number so that we can proceed further in the matter.

However, if your children has refused to accept the summons, you have protection under the Protection of the Rights of Elders Act, No.9 of 2000.Under Section 33 of the Elders Act,any person who does not attend the Maintenance Board after receivng summons, the Board has the power to report this matter to the Court of Appeal.

List of Labour Tribunals in Sri Lanka

Question: I would like to know the addresses of the Labour Tribunals in Sri Lanka. This will help me in my field of work as a Human Resources Manager.

B. Peiris, Biyagama

Answer : As requested by you, I give below the addresses of the Labour Tribunals islandwide: Labour Tribunal 1, 136, Vauxhall Street, Colombo 2

Labour Tribunal 1 Addl.
136, Vauxhall Street
Colombo 2

Labour Tribunal 2
136, Vauxhall Street
Colombo 2

Labour Tribunal 2 Addl.
136, Vauxhall Street
Colombo 2

Labour Tribunal 8
136, Vauxhall Street
Colombo 2

Labour Tribunal 13
136, Vauxhall
Colombo 2

Labour Tribunal (Kandy)
New Court Complex
William Gopallawa Mawatha
Kandy

Labour Tribunal (Ratnapura)
Court Complex
New Town
Ratnapura

Labour Tribunal (Nuwara Eliya)
Blackpool
Nuwara Eliya

Labour Tribunal (Hatton)
Liberty Building
Sanbari Road
Hatton

Labour Tribunal (Kalutara)
Court Complex
Kalutara

Labour Tribunal (Avissawella)
Court Premises
Avissawella

Labour Tribunal (Negombo)
Mudalige Mawatha
Negombo

Labour Tribunal (Negombo)
District Court Premises
Negombo

Labour Tribunal (Matale)
Palapathwela,
Matale

Labour Tribunal (Galle)
Sadarmalaya Mawatha
Fort
Galle

Labour Tribunal (Badulla)
Old Magistrate Building
Badulla

Labour Tribunal (Panadura)
District Court Premises
Panadura

Labour Tribunal (Anuradhapura)
Court Complex
Anuradhapura

Labour Tribunal (Kaduwela)
New Kandy Road
Biyagama
Kaduwela

Labour Tribunal (Ratmalana)
22, Sri Sumangala Mawatha
Ratmalana

Labour Tribunal (Morawaka)
Shantha Galdola, Kotapola
Morawaka

Labour Tribunal (Talawakelle)
Bogahawatte Bazaar
Pathana
Talawakelle

Labour Tribunal (Kegalle)
07,Opposite New Police Station
Kegalle

Labour Tribunal (Batticaloa)
Court Complex
Batticaloa

Labour Tribunal (Kurunegala)
94, Circular Road
Kurunegala South

Labour Tribunal (Gampaha)
Sribodhi Road
Walawwatta
Gampaha

Labour Tribunal (Matara)
35, Beach Road
Matara

Labour Tribunal (Chilaw)
Court Complex
Chilaw

Labour Tribunal (Wattala)
07, Sivali Lane
Wattala

Labour Tribunal (Maharagama)
179E, Highlevel Road
Pannipitiya

Labour Tribunal (Matugama)
Galadodaya Watta Road
Matugama

Labour Tribunal (Nawalapitiya)
Balantota, Rambukpitiya
Nawalapitiya

Labour Tribunal (Amparai)
Court Complex
Amparai

Public Petitions Unit

Question: I understand that a Public Petitions Unit has been established in the Attorney-General's Department. Please let me know when this Unit was set up and what are its functions. I would also like to know how this Unit works.

M. Ziyad, Colombo 10.

Answer: In order to give effect to the national policy at the relevant time, a Public Petitions Unit was established in the Attorney-General's Department. The Public Petitions Unit was established in 1995.

The main function of this Unit was to look into complaints made by members of the public who had grievances against Public State Authorities. This Unit receives over 1,000 petitions from members of the public and has effectively granted redress in appropriate cases.

In most cases, this Unit calls for a report from the relevant Public Authority pertaining to the said complaint and having considered the report, advises the Public Authority in appropriate cases, to grant redress to the complainant. In recent times though there have been several petitions received from persons remanded or detained in prison, most of them are remanded by Court and others, who have been granted, bail, but cannot afford to furnish the cash bond.

In such cases, through our prosecuting counsels, we ensure that the trial or inquiry is expedited or refer them to the Legal Aid Commission to make representations on their behalf to Court.

In instances where persons have been committed to stand trial in the High Court, this Units ensures that the indictments against them are speedily despatched to the relevant High Courts.

It is pertinent to note whenever there is a complaint of torture received from member of the public; this unit facilitates the conducting of investigation into such complaints.

Complaints could be made to the Attorney-General's Department, Public Petitions Unit, Superior Courts Complex, Colombo 12. Tel No. 2320848, 2320854, 2327919 - Ext 306.

What is a juvenile court?

Question: What is a Juvenile Court and what are the powers of a Juvenile Court? Please let me know through your valuable Legal Aid Page. How can I get the help of the Legal Aid Commission in this regard.

M. Jacob, Pitakotte

Answer: A Juveline Court is a court that hears and charges against a child or a young person. The Magistrate's Court can exercise the power of a Juvenile Court while continuing its regular court functions. The Bambalapitiya Court is the only court that is solely considered a Juvenile Court.

A Juvenile Court can hear and determine most cases relating to a child or young person charged with an offence under a Penal Code including:

* Cruelty of children and/or young persons;
* Causing or encouraging seduction or prostitution of a girl under the age of 16
* Allowing persons under the age of 16 to be in brothels;
* Causing or procuring persons under the age of 16 to beg;
* Punishment for using criminal force unless there was grave and sudden provocation;
* Assault;
* Kidnapping or abduction;
* Punishment for rape; and
* Any other offences involving bodily injury to a child or young person.

A Juvenile Court cannot hear cases regarding serious offences such as murder, wrongful killing, attempted murder, attempted wrongful killing or robbery. Instead serious offences will be heard by a Higher Court where a child or young person is accused. The address of the Juvenile Court is: Juvenile Court, Bambalapitiya, Tel. No. 0112581806 Fax No. 0112587498.

Payment for extra hours worked

Question: I have worked in an establishment for seven years as a Clerk in the Accounts Department. I have now resigned from my employment as my Employer has not paid any overtime for working extra hours on week days and also for working on Saturdays and Sundays.

This has been going on for nearly three years. Can I claim my overtime before the Labour Tribunal? Please advise me the correct forum where I should go to in order to claim my dues for working extra hours.

Mrs. M. Peiris, Dehiwela

Answer: Since you have resigned from your employment, the Labour Tribunal has no jurisdiction to hear your claim. In addition a Labour Tribunal has no jurisdiction to hear your claim as it is a statutory due.

You should lodge your claim with the Commissioner of Labour who has the power to inquire into non payment of statutory dues.

Payment of Gratuity addition to pension

Question: I am employed in an establishment where my Employer has a pension scheme where no deduction is made from my salary. In other words they have a non contributory pension scheme.

Please advise me whether I will be entitled to claim gratuity in terms of the Payment of Gratuity of Act No. 12 of 1983 in addition to my pension.

H. George, Ja-Ela

Answer: Section 7 (b) of the Payment of Gratuity Act No. 12 of 1983 states as follows.

"The provision of Section 5 of the Act shall not apply to or in relation to a workman entitled to a pension under any non-contributory pension scheme." You will therefore be entitled to the pension under your non contributory pension scheme and not both.

Repayment of gratuity

Question: I am a Manager of a Private Company where there are more than 15 employees working. One of the employees who have been in employment for 10 years and 06 months, who is a monthly paid employee resigned from his employment by giving one months notice in terms of his contract of employment.

He is insisting that the Management should compute his gratuity under the Payment of Gratuity Act No. 12 of 1983 for 10 years and 06 months. Please advise the correct legal position with regard to the Payment of Gratuity Act.

G. Mohamed, Wattala

Answer: In terms of the Payment of Gratuity Act No. 12 of 1983, if a person who has a period of service not less than five (05) completed years under that Employer qualifies for gratuity. The word 'year' has been defined in the Act as completed period of twelve months. The employee concerned will therefore be entitled to gratuity for the period of 10 years and not for the balance six months.

You will have to compute the gratuity on the basis of half a month salary for each years of completed service computed at the rate of wage or salary last drawn by him.

If he refuses to accept the gratuity, you may deposit the money with the Assistant Commissioner of Labour of the District in which your Company is situated with a copy to the employee. This will help you to avoid the question of surcharge.

Quotations from Judgements

Kandy
Vs
Government of Federation of Malava

Expert trials

"If the right to be heard is a real right which is worth anything, it must carry with it a right in (a party) to know the case which is made against him.

He must know what evidence has been given and what statements had been made affecting him, and then he must be given a fair opportunity to correct or contradict them.

This appears in all the cases from the celebrated judgement of Lord Loreburn LC in Board of Education vs Rice, down to the decision of their Lordship's Board in Ceylon University vs Fernando. It follows, of course, that the judge or whoever has to adjudicate must not here evidence or receive representations from one side behind the back of the other."

Lord Denning J
1962 AC
322 (PC)
Quoted by Sharvananda CJ with approval in Chulasubadra vs University of Colombo (1986) 2 Sri LR 288 at 302

Closing date extended

The closing date for entries to the Islandwide essay competition on "Law and Eradication of Harmful Drugs" sponsored by Sri Lanka Telecom has been extended until September 30,2007.

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

Compiler: Kalani A Medagoda, Attorney-at-Law