Introduction-Human Rights and religion

Modern individual Human Rights activists fights shy to discuss the religious origin of most of the 1st generation civil and political rights. Ancient human civilisations in Egypt, Babylon, the Indus or Yangtse river valleys flourished under human codes of conduct which aimed both communally respected rights and duties.

The religious approach to the HR discourse arose from a perspective of human duties to fellow individual beings, to the family which was always the basic human unit in the community and principles of general good governance.

This common religious basis of human duties which were the protector of corresponding human rights is amply illustrated by the golden rule of human conduct common to all religions.

The golden aphorism i.e. “Hurt not others in ways that you yourself would find hurtful” was preached by Lord Buddha (Udana Vagga: 5:18) 2500 years ago. Similarly, Zoroaster who founded Zoroastrianism in middle Asia few hundred years after the Buddha, taught “The nature alone is good which refrains from doing unto another whatsoever so is not good for itself. Similarly, Confucius repeated “What you do not wish others to do to you, do not do to them.”

Jesus Christ (7BC-30AD) taught “Therefore all things whatever ye would that men should do to you, do ye even to them, for this is the law. Mathew 7.12.

The golden rule of positive reciprocity forms the cardinal law of modern human rights by the recognition of human equality and right to life as expounded in the Universal Declaration of Human Rights 1948 and the International Covenant on Civil and Political Rights (ICCPR) 1966. Many constitutions of modern democracies have recognised these rights in their Bills of Rights.

The rights based conduct and preaching of different religious dignitaries carry these fundamental human rights to the grass root society. Inclusion of human duties corroborating along with the compendium of rights ensure the balance in the human rights discourse.

Sri Lanka is a multi religious society with a rich historical tradition, majority practising equality as expounded in Buddhism. Buddhist teaching is based on equality without distinction as to race, gender, caste or wealth.

The tolerance and compassion (Metha) to fellow human beings is a cardinal rule of conduct. The other Sri Lankan religious too as explained above embody all tenets of modern human rights discourse.

S. S. Wijeratne,

Email: legalaid.dailynews@yahoo.com

Law and eradication of harmful drugs

The awards ceremony for winners of the all island school essay competition in Sinhala, Tamil and English was held at the auditorium of the Central Bank at Rajagiriya at 2.30 p.m. on November 16 under the patronage of the Minister of Education Susil Premajayantha.

The essay competition was a joint venture between the Legal Aid Commission and the Ministry of Education conducted annually. This year the competition was sponsored by the Sri Lanka Telecom Ltd.

The first prize for the best essay in Sinhala was won by Miss Ruwini Wickramasinghe of Udawala Maha Vidyalaya and the 2nd and 3rd prizes were won by Miss Indra Kumari Ratnamalala of Mahasen National School at Nikaweratiya and Miss Tharanga Madushani Wijewickrama of Good Shepherd Girls’ High School, Nuwara Eliya respectively.

In the Tamil medium, the 1st prize was won by M. J. Ijaz Ahamed of Kinniya Central College, while the second prize was won by Mohamed Jamaloon of Jamiah Naleemiah Institute, Beruwala and the third prize by Miss Fatima Farwina of Welimada Muslim Maha Vidyalaya.

Dinoosh de Livera of St. Joseph’s College, Colombo won the 1st prize in English and the second prize went to Surantha Chamika de Silva of Ananda College, Colombo, while the third prize was won by Anne Jitma Jayasekera of Deniyaya Central College.

The nine winners received cash prizes donated by Sri Lanka Telecom and 30 other students received consolation prizes from the invitees, Chairman of Sri Lanka Telecom, Attorney-at-law Asoka de Silva and Legal Aid Commission Chairman S. S. Wijeratne.

Simultaneously, with awards ceremony for winners of the essay competition awards were also presented to winners of the art competition on ‘Domestic Violence’ to coincide with International Tolerance Day which fell on November 16. Some of the paintings showed the abhorrence of the young for domestic violence and was displayed at the foyer of the Central Bank auditorium.

United Nation’s Children’s Day school talent competition

World’s Children’s Day was celebrated on October 1 while November 20 is celebrated by the UN family as the day on which UN Convention on the Rights of the Child (CRC) was adopted by the General Assembly in 1989.

As a prelude to the Convention it was on 20th November 1959 the Declaration on Rights of the Child was adopted by the General Assembly. Hence, November 20th is celebrated worldwide as UN Children’s Day.

Sri Lanka ratified the CRC in 1991, and adopted Children Charter in 1991. But Sri Lanka’s main Children and Young Persons Ordinance was adopted in 1939 even before the UN was founded.

November 20th was celebrated by the LAC Colombo and 41 Regional Centers to emphasise the need to respect and protect the children in Sri Lanka.

This year’s ceremony was held at the Tower Hall at 3.30 p.m. under the patronage of Mrs. V. Sugathadasa, Secretary, Ministry of Women and Child Development. The guest of honour would be Dinesh Kanagaratnam, Chief of Party, IDLO Colombo Project Office.

The special feature of this ceremony was the launching of two research reports on children, one on legal position of tsunami affected children and the second on ‘Children in Institutional Care’. The first report reveals that over 3,000 tsunami orphans are yet to register with legal custodians.

In order to highlight the talent of the younger generation, eight schools, Thurstan College, Zahira College, Mahanama College, Ananda Balika, Yasodhara Balika and Gothami Balika including the children from CPS Girls and Boys homes would participate in Children Talent Contest. The winners would receive valuable awards and certificates.

Among the invitees were Miss Sarala Kariyawasam of ‘Water’ fame and the students who topped the all island academic competitions.

Stop violence against women

International Day for the Elimination of Violence Against Women commencing from November 25 to December 10.

Legal Aid Commission of Sri Lanka, No. 129, High Court Complex, Hulftsdorp Street, Colombo 12, Tel. 53335329, 53335281, 24333618.

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 Commsion, No. 129, Hulftsdorp Street, Colombo 12.

Email: legalaid.dailynews@yahoo.com

Website:www.lawaid.org

Questions and Answers

Re: Payment of Gratuity

Question:An employee after completing five years continued service in an organization merely to withdraw his gratuity has resigned from the service, hoping to join into the same organization as a new employee.

(a) Can the employee to do so?

(b) Is the employer concerned legally allowed to enlist the said employee as a new employee?

M. P. Jayawickrema, Colombo 3

Answer:You have not given the most important information, i.e. the number of employees. The Payment of Gratuity Act, No. 12 of 1993 applies only to an industry where 15 or more workmen are employed.

Answer to question -

(a) The employee can resign and take the gratuity if your Company is covered by Gratuity Act.

(b) The employer is not required under the law to enlist the said employee.

Details about ICCPR Act passed in Parliament recently

Question: Please let me know some details about the International Convention on Civil and Political Rights (ICCPR) Act passed in Parliament two weeks ago. G. Peiris, Colombo 3.

Answer: The International Convention on Civil and Political Rights Act was passed in Parliament two weeks ago to fill some of the short comings in the Human Rights Law in Sri Lanka as pointed out in the Singarasa case.

Under the new Act, provisions are made, all persons in Sri Lanka as legally recognised persons and has declared those persons who create racial, religious or ethnic hatred as committing an offence who could be punished in a High Court. The Act also provides for legal representation for accused in criminal cases if they cannot afford lawyers. The Act also provides protection for children to be recognised and receive assistance from the State. Under the new Human Rights Law free access to public service has been created for all persons in Sri Lanka.

Whether EPF and ETF can be obtained on back wages?

Question: My services were terminated by a Company in Colombo where I was employed for 10 years. There are 150 employees in the Company. I filed action in Labour Tribunal and the order of Labour Tribunal was re-instatement with full back wages amounting to 20 months’s salary. I am now working in the Company which paid me my back wages amounting to Rs. 180,000. I asked the Company to contribute to EPF and ETF for the sum of Rs. 180,000 but it is refusing.

The Company sent me a cheque for gratuity at the time it terminated my services but I returned the cheque as I had filed action with the Labour Tribunal seeking the relief for re-instatement.

Please advise me -

(i) Whether I can obtain EPF and ETF on the back wages.

(ii) Whether the period of 20 months service I was out of employment could be reckoned as continues service for calculation of gratuity.

D. Bernard, Wattala.

Answer: Answers to your questions are given below:

(i) You are not entitled to EPF, ETF on the back wages ordered by Labour Tribunal. The reason for this is that EPF, ETF is calculated on “earnings”. The meaning of “earnings” is wages, salary or fees, cost of living allowances, special living allowances and other similar allowances.

(ii) The period of 20 months will be reckoned as service for purposes of calculation of gratuity as your re-instatement in service is without a break in service.

Different Court systems in Sri Lanka starting from Mediation Board

Question: Please be good enough to describe to us the judicial frame work as it exists today starting from Mediation Board (though it is not a legal entity) and spreading to its apex - viz Supreme Court. Civil and Criminal jurisdiction may be explained briefly.

W. W. Cumaratnam, Kelaniya

Answer: Mediation Board set up under Act No. 88 of 1978 is the basic form in which disputes not exceeding Rs. 25,000, could be mediated. If a Mediation Board does not issue a Certificate of Non-Settlement, no action can be filed.

As far as Tribunal related disputes, Mediation Act. No. 21 of 2003 applies for disputes less than Rs. 500,000 in value.

In the courts system, the highest court in the land is the Supreme Court established under the 1978 Constitution. There are 11 Judges of the Supreme Court which is presided over by the Chief Justice.

The Supreme Court deals with fundamental rights violations, all constitutional matters and appeals from the Court of Appeal and commercial arbitration awards from the High Courts. Next to the Supreme Court is the Court of Appeal established by the Constitution where all District Courts and High Courts appeals are heard.

The Court of Appeal also has writ jurisdiction. Then comes the High Court established in the provinces which has recently being given appellate jurisdiction from the District Courts. The High Court has appellate jurisdiction over Labour Tribunals, Magistrate’s Court appeals and criminal jurisdictions over all indictable offences.

District Courts come next and hear all the civil and matrimonial disputes whereas the Magistrate’s Courts are vested with criminal jurisdiction. The lowest level in the court systems are the Primary Courts which have been given limited jurisdiction.

Re:notice of resignation

Question: My friend who runs an electronic business employs around 15 personnel. Due to the nature of the work and confidentiality involved therein, his employees have been issued letters of appointment designating them as Executives. With regard to the clause pertaining to termination of employment, my friend had indicated that three (03) months notice should be given by either party.

One of his employees had opted to resign from the services of his Company after having served for a little more than 5 years after giving one month notice. The employee has kept away from work after having worked for one more month from the time of handing over the letter of resignation.

My query is whether my friend could avoid accepting the resignation where only one month notice had been given in lieu of the three months required as per the letter of appointment which has been signed and accepted by the employee. If so, could my friend write to the employee requesting the letter of report to work immediately failing which the employee would be deemed to have vacated post.

Additionally, please let me know whether the employee is entitled to Terminal Gratuity under the Act, and if so, could my friend recover the equivalent of two months salary from the employees gratuity entitlement in lieu of the required notice and issue a letter accepting his employee’s resignation?

H. A. Careem, Colombo.

Answer: Your friend who is the employer can write to the employee -

(i) referring him to the letter of appointment and ask him to report for work or pay two months salary in lieu of notice and stating that his resignation is not accepted and if he does not report for work he will be deemed to have vacated his post.

The employee is entitled to payment of gratuity which has to be paid within 30 days of resignation. Failure to do so would result in payment of surcharge.

Your friend cannot recover the two months salary in lieu of notice from the amount due as gratuity.

Minimum wages under Wages Board Ordinance

Question: An employee of a particular trade which is governed by the Wages Board Ordinance has to work for specific number of days (26 days) for a month which has 30 days to become entitled for the monthly minimum wages (Basic wages). This employee has worked for the said month only for 24 days and obtained 02 days of approved leave (26+02=28) from his annual leave he is entitled to. In this situation is this employee entitled for the minimum wages of the said month?

Your earlier reply through the “Daily News Legal Aid Page” to the above question will be greatly appreciated.

Jayawickrema, Colombo

Answer: The employee is entitled to minimum wages.

Withdrawal of appeal

Question: I submitted an appeal to the Court of Appeal in 1998 against the judgement of the District Court.

I now wish to withdraw the appeal. Please let me know -

(i) whether I can claim a refund of the Rs. 3,000 paid to the District Court with my appeal and if so the procedure.

(ii) Even if I cannot claim a refund should I inform that I wish to withdraw the appeal or can I refrain from taking action when a reply is received?

C. Fernando, Dehiwela

Answer: It is possible to withdraw the appeal with the permission of court. It is also necessary to notice the other party. However, you will not be able to claim a refund.

Re: land matter

Question: I own a house inherited from my parents, being the eldest son in a family of six brothers and sisters. They are married and living elsewhere. It was in consideration of the responsibility I shouldered, as the eldest son in the family, parents thought it appropriate to vest the ownership of the house on me. At present I am the full-pledged owner of the house holding the deed in my name. Now the brothers and sisters insist on disposing of the house and pay them the due share of the sale proceeds. Is it legally viable or is it purely discretionary on me.

Cader Mohideen, Colombo 9

Answer: It appears from your letter that you are the sole owner of the house. Therefore you can do anything in relation to that property.

If any further advice is necessary, please call over at our Head Office at No. 129, Hulftsdorp Street, Colombo 12.

How to amend marriage certificate

Question: We got married in 2005. But in my Marriage Certificate my age has been mentioned as 29 years. But at that time my real age was 32 years. How do I amend my Marriage Certificate? In my Birth Certificate and National Identity Card my date of birth has been correctly stated. Please advise me.

Anurada, Maharagama.

Answer: If you want to amend your Marriage Certificate you have to file a case in the District Court citing the Registrar and the Registrar-General as Respondents.

Selling Anintestate property Re: Intestate property

Question: My father died leaving behind my brother and myself. My mother predeceased him. My father owned property worth nearly four million. Can we sell this property without filing a testamentary case?

Cecil Fernando, Pitakotte.

Answer: No. When any person dies 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/her death to report such death to the District Court of the district in which he/she 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 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. For further legal advice you can visit our Legal Aid Centre in Matale. Tel No. 060-2664588.

New pension scheme for disabled persons who are not in Government Service

Question: I am father of a disabled girl living in a remote area. At one of your Workshops I heard that there is a pension scheme for disabled children whose parents are not Government servants. Could you please let me know further details regarding this matter.

Amaratunga, Polonnaruwa.

Answer: The Legal Aid Commission has set up a Disabled Unit in order to help disabled persons in relation to court matters, such as preparing of legal documents, counselling and free appearances in court. We also closely liaise with the Pension Department, Registrar-General’s Department with regard to problems of disabled persons.

The Legal Aid Commission coordinates with the Social Service Department regarding problems faced by the disabled persons.

Under the Social Service Department, the Social Security Board has introduced a pension scheme for disabled persons both men and women who are not covered under the government pension scheme. In Sri Lanka, a special social security benefit scheme for women with disabilities has been introduced known as ‘Samaka Diriya’.

‘Samaka Diriya’ is a pension scheme introduced together with the National Secretariat for persons with Disabilities in order to promote living standards of persons with disabilities. Women with disabilities who opt to select one of the six initial pension schemes introduced by the Ministry of Social Services and Social Welfare will entitle to pension under ‘Samaka Diriya’.

In this pension scheme, a woman after 60 years of age is entitled to a life long monthly pension and in addition is entitled to receive a set of assistive devices only once in lifetime after enroling in the said pension scheme.

Further, if the disabled woman is self employed, assistance will be granted to improve that venture, and if she employs three disabled women, she will be granted Rs. 10,000 for extension of her venture which will not be recovered.

Another benefit is that a beneficiary of this pension scheme will receive up to a maximum of Rs. 20,000 when suffering from a serious illness. If this disabled person has a piece of land of his/her own, a sum of Rs. 75,000 will be paid for the construction of a house. For further information about this scheme you may please call Tele Sale Sections of the Sri Lanka Social Security Board through Telephone No. 0112852958.

The application forms could be obtained from that section or from District Coordinators of the Sri Lanka Social Security Board attached to District Officers or you can obtain information about Monthly Pension Scheme from the General Manager, Social Security Board, I5OA, Nawala Road, Nugegoda or you can visit the Legal Aid Commission, Disabled Unit, at No. 129, Hulftsdorp Street, Colombo 12.