Protection Of The Rights Of Elders

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Published: 2000

Protection Of The Rights Of Elders
Protection Of The Rights Of Elders




AN ACT TO PROVIDE FOR THE ESTABLISHMENT OF A NATIONAL COUNCIL FOR ELDERS FOR THE PROMOTION AND PROTECTION OF THE WELFARE AND THE RIGHTS OF ELDERS ; AND TO PROVIDE FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO








Be it enacted by the Parliament of the Democratic Socialist Republic of Sri Lanka as follows :-



[4th May

, 2000 ]













Short title and date of operation.



1. This Act may he cited as the Protection of the Rights of Elders Act. No. 9 of 2000 and shall come into operation on such date as the Minister may appoint by Order published in the Gazette (hereinafter referred to as the "appointed date").



PART I
ESTABLISHMENT OF THE NATIONAL COUNCIL FOR ELDERS



Establishment of the National Council for Elders.



2.





(1) There shall be established a Council called the National Council for Elders (hereinafter referred to as the "Council")



(2) The Council shall, by the name assigned to it by subsection (1). be a body corporate with perpetual succession and a common seal and may sue and he sued in such name.



Constitution of the Council.



3.





(1) The Council shall consist of the following members :-





(a) the Secretary of the Ministry of the Minister in charge of the subject of Social Services who shall be the Chairman of me Council :



(b) the Additional Secretary of the. Ministry of the Minister in Charge of the subject of Social Services who shall be the Vice Chairman of the Council ;



(c) the Director of the Department of Social Services who shall he the Secretary of the Council ;



(d) three members appointed by the President in consultation with the Minister to represent elders in Sri Lanka :



(e) five members appointed by the President in consultation with the Minister to represent voluntary organisations, that are engaged in providing services to elders and are registered under this Act:



(f) four other members appointed by the President in consultation with the Minister, by name or office. from among professionals, members of corporate bodies and public officers.



(2)





(a) a member appointed under paragraphs (d),(e)or(f) of subsection (1) is hereinafter referred to as an "appointed member".



(b) a member appointed under paragraph (e) of subsection (1) shall also be appointed as a Vice Chairman of the Council. by the President, in addition to the ex-officio Vice Chairman appointed under paragraph (b) of subsection (1).



Term of Office of appointed members.



4. Every appointed member shall, unless he vacates office earlier by death, resignation or removal, hold office for a period of three years from the date of his appointment and shall unless he has been removed from office, be eligible for re-appointment.



Removal and resignation of appointed members.



5.





(1) The President may, in consultation with the Minister for reasons assigned remove any appointed member from office.



(2) In the event of any vacancy of office by death, resignation or removal, of any appointed member, the President may. in consultation with the Minister, and having regard to the provisions of section 3, appoint any other person to succeed such member. Any member so appointed shall hold office for the unexpired period of office of the member whom he succeeds.



(3) Any appointed member may at any time resign from office by letter to that effect addressed to the President.



(4)





(a) Where an appointed member, by reason of illness. infirmity or absence from Sri Lanka for a period of not less than six months, is temporarily unable to perform the duties of his office, it shall be the duty of such member to inform the President in writing of such inability. Thereupon, the President may. in consultation with the Minister, and having regard to the provisions of section 3, appoint some other person to act in his place.



(b) Any appointed member who has failed to attend three consecutive meetings without prior notice shall be considered to have vacated membership of the Council unless he is re-appointed.



Remuneration of members.



6. The members of the Council may be paid such allowances as the Minister may determine in consultation with the Minister in charge of the subject of Finance.



The Chairman and the conduct of business.



7.





(1) The Chairman shall preside at all meetings of the Council at which he is present. In the absence of the Chairman from any meeting one of the Vice Chairmen shall preside at such meeting. Where the Chairman and both Vice Chairmen are absent from any meeting of the Council, the members present at such meeting shall choose from among themselves another member to preside at that meeting.



(2) The quorum for any meeting of the Council shall be eight members.



(3) The Council shall meet as often as is necessary, and in any case at least once in each month, at such time and place as the Council may determine, and may subject to the other provisions of this Act and any regulation made thereunder regulate the procedure in regard to its meetings and the transaction of business at such meetings.



Acts not invalidated by reason of a vacancy.



8. No act decision or proceeding of the Council shall be deemed to be invalid by reason only of the existence of any vacancy in the Council or any defect in the appointment of any member thereof.



Delegation of powers to members.



9. The Council may delegate to any member of the Council, or a provincial Director of Social Services any power, duty or function conferred or imposed on, or assigned to. the Council by this Act. and in the exercise, performance or discharge of such power, duty or function such member or Director shall be subject to the general or special directions of the Council.



Establishment of a National Secretarial.



10. There shall be established a National Secretariat to assist the Council in the discharge of its functions.



Seal of the Council.



11.





(1) The seal of the Council may be determined and devised by the Council, and may be altered in such manner as may be determined by the Council.



(2) The seal of the Council shall be in the custody of such person as the Council may decide from time to time.



(3) The seal of the Council shall not be affixed to any instrument or document except with the sanction of the Council and in the presence of the Chairman and one member of the Council who shall sign the instrument or document in token of their presence.



(4) The Council shall maintain a register of the instruments and documents to which the seal of the Council has been affixed.



Principal function of the Council.



12. The principal function of the Council shall be the promotion and protection of the welfare and the rights of elders in Sri Lanka and to assist elders to live with self respect, independence and dignity.



Other functions of the Council.



13. Without prejudice to the generality of the provisions of section 12, the other functions of the Council shall be as follows :-





(a) to advise the Government on the promotion of the welfare and the rights of eiders;



(b) to recommend programmes to the Government and the other appropriate bodies, to strengthen the family unit based on the traditional values of Sri Lanka ;



(c) to take all such measures as are necessary, in consultation with the relevant Ministries, Provincial Authorities. Local Authorities, Districts and Divisional Secretariats, religious institutions, Non Governmental Organisations and private sector organizations, to promote and protect the welfare and rights of elders ;



(d) to organise lectures, seminars, workshops and other programmes in schools and other appropriate places with a view to inculcating, in the younger generation, their duties to elders ;



(e) to ensure the adoption of, and compliance with, the relevant international declarations and conventions relating to elders, by the Government of Sri Lanka ;



(f) to maintain accurate and up to date statistics relating to elders ;



(g) to promote studies and research with a view to identifying the principal causes of the problems of elders and their needs and aspirations and to promote effective measures for the alleviation or elimination of such causes and for the satisfaction of such needs and aspirations ;



(h) to provide due publicity through all appropriate means to the findings of the studies and research referred to in paragraph (g), in order to make the public aware of the problems, needs and aspirations of elders ;



(i) to encourage the establishment of welfare centres. recreation centres, day care centres and other appropriate institutions with accomodation for destitute elders and to provide the necessary facilities to such centres and institutions ;



(j) to monitor and coordinate programmes and schemes initiated and implemented by the Government, voluntary Organizations and bodies of persons, for the upliftment of the status of elders ;



(k) to introduce and implement a health insurance benefit scheme for elders :



(l) to provide information in respect of services available for elders ;



(m) to maintain a directory of paid and unpaid job opportunities available to elders, for the reference of elders and to assist elders wherever possible to be gainfully employed ;



(n) to maintain a directory of elders according to their talent:; and expertise for the reference of the public ;



(o) to facilitate elders to obtain necessary legal advice and assist elders to seek redress under section 25 of this Act;



(p) to introduce various programmes with a view to preparing the younger generation to confront old age with confidence and courage ; and to initiate appropriate Social Security Schemes and encourage the younger generation to subscribe to such schemes.



Powers of the Council.



14. The Council may exercise all such powers as may be necessary for the discharge of its functions, including the power-





(a) to acquire, held, take or give on lease or hire, mortgage, pledge or sell or otherwise dispose of. any movable or immovable property ;



(b) to construct buildings on any land conveyed to, or acquired by, the Council ;



(c) to enter into and perform directly or through any officer or agent authorized in that behalf, all such contracts as may be necessary for the discharge of the functions and the exercise of the powers of the Council ;



(d) to open and maintain current, savings or deposit accounts in any bank or banks ;



(e) to borrow such sums of money as may be necessary for the purpose of discharging the functions of the Council ;



(f) to accept and receive, grants, donations and bequests both movable and immovable, from sources in Sri Lanka and abroad and apply them for the discharge of its functions;



(g) to make rules in respect of the management of the affairs of the Council ;



(h) generally, to do all such other acts and things as are necessary to facilitate the proper discharge of the functions of the Council.



PART II
PROTECTION OF THE RIGHTS OF ELDERS



Provision for the protection of rights of Elders.



15.





(1) Children shall not neglect their parents wilfully and it shall be the duty and the responsibility of children to provide care for. and to look into the needs of, their parents.



(2) The State shall provide appropriate residential facilities, to destitute elders who are without children or are abandoned by their children.



(3) No elder shall on account of his age, he subject to any liability, restriction or condition with regard to access to. or use of, any building or place or institution which any other person has access to or is entitled to use, whether on payment of any fee or not.



PART III
REGISTRATION



Registration with the Council.



16. Any person or organisation voluntary or otherwise, that is engaged in providing services or assistance in any form or manner to elders either directly or through any institution or other body or organisation may register under this Act. In this section "Organisation" does not include a Ministry or a Department of the Government.



Application for registration.



17. Every application for registration under this Act shall be made to the Secretary Council in the prescribed form and in the prescribed manner.



Registration.



18.





(1) On receipt of an application under section 17, the Council may, after making necessary inquiries and investigations with regard to the services and assistance provided by the person or organisation making the application, register such person or organisation under this Act and issue a certificate of registration, to that effect.



(2) A person or organisation registered under subsection (1) shall hereinafter in this Act be referred to as "'approved person" or "approved organisation", as the case may be.



(3) The Council may by an order made in that behalf refuse the application for registration of any person or organisation where the Council is satisfied that the services and assistance provided by such person or organisations is not of the required standard and such order shall contain the reasons for such refusal.



(4) A certified copy of the order referred to in subsection (3) shall be sent to the applicant by the Council within one week of such refusal.



(5) An applicant aggrieved by an order referred to in subsection (3) may within thirty days of the issue of such order prefer an appeal to the Minister in charge of the subject of Social Services, against such order.



PART IV
FINANCE



The Fund of the Council.



19.





(1) There shall be established a Fund to be called the National Fund for the Welfare of Elders (hereinafter referred to as the "Fund")



(2) There shall be paid into the Fund-





(a) all such sums of money as may be voted from time to time by Parliament;



(b) all such sums of money as may be received by the Council by way of donations, or bequests, aid or grants from any source whatsoever, whether in Sri Lanka or abroad ;



(c) all such sums of money as may be received by the Council by way of proceeds from the sale of any movable or immovable property of the Council ;



(3) There shall be paid out of the Fund-





(a) all such sums of money as are required to defray any expenditure incurred by the Council, in the exercise, performance and discharge of its powers, duties and functions under this Act ;



(b) all such sums of money as are authorised by the Council to make any exgratia payment to any individual or organization in recognition of any exceptional or outstanding contribution made by such individual or organization towards the upliftment or improvement of the status of elders ;



(c) all such sums of money as are required to be paid out of such fund, by or under this Act.



Audit and Accounts.



20.





(1) The Council shall cause proper accounts to be kept of the income and expenditure, assets and liabilities and all other transactions of the Council.



(2) The financial year of the Council shall be the calendar year.



(3) The provisions of Article 154 of the Constitution shall apply to the audit of the accounts of the Council.



Investment of moneys of the Council.



21. Any sum of money belonging to the Council may be invested by the Council in such manner as the Council may determine.



PART V
STAFF OF THE COUNCIL



Staff of the Council.



22.





(1) The Council may appoint such officers and servants as the Council may deem necessary for the proper and efficient discharge of its functions.



(2) Subject to the other provisions of this Act, the Council may-





(a) exercise disciplinary control over or dismiss, any officer or servant of the Council ;



(b) fix the wages or salaries or other remuneration of such officers and servants ;



(c) determine the terms and conditions of service of such officers and servants ; and



(d) establish and regulate a provident fund and any other welfare scheme for the benefit of the officers and servants of the Council and may make contributions to any such fund or scheme.



Appointment of public officers to the staff of the council.



23.





(1) At the request of the Council, any officer in the public service may, with the consent of that officer and the Secretary to the Ministry under which that officer is employed and the Secretary to the Ministry of the Minister in charge of the subject of Public Administration be temporarily appointed to the staff of the Council for such period as may be determined by the Council with tike consent, or with like consent be permanently appointed to such staff.



(2) Where any officer in the public service is temporarily appointed to the staff of the Council, the provisions of subsection (2) of section 14 of the National Transport Commission Act, No. 37 of 1991. shall, mutatis mutandis, apply to, and in relation to, such officer.



(3) Where any officer in the public service is permanently appointed to the staff of the Council, the provisions of subsection (3) of section 14 of the National Transport Commission Act, No. 37 of 1991, shall mutatis mutandis, apply to, and in relation to, such officer.



(4) Where the Council employs any person who has entered into any contract with the Government by which he has agreed to serve the Government for a specified period, any period of service to the Council by that person shall be regarded as service to the Government for the purpose of discharging his obligations under such contract.



PART VI
APPOINTMENT OF THE BOARD



Board for determination of claims for maintenance by elders.



24.





(1) There shall be appointed for the purpose of this Act. one or more Boards for the determination of the claims for maintenance by elders (a Board appointed under this section hereinafter referred to as "the Board").



(2) The provisions of the Schedule to this Act shall apply to the powers of the Board, the procedure to be observed at meetings of the Board, the remuneration payable to members of the Board, determinations of the Board and appeals from such determinations.



Applications for maintenance orders.



25.





(1) An elder who has a child or children and who is unable to maintain himself (in this section referred to as "the Parent") may apply to the Board for an order that one or more of his children pay him a monthly allowance or any other periodical payment or a lump sum, for his maintenance.



(2) An approved-person or organisation in whose care a parent who is unable to maintain himself resides may apply to the Board for an order that one or more of the children of such parent, pay the approved-person or organisation a monthly allowance or any other periodical payment or a lump sum for the purpose of defraying the costs and expenses of maintaining the parent.



(3) For the purposes of this section, a parent is deemed to be unable to maintain himself if his total or expected income and other financial resources are inadequate to provide him with basic amenities and for meeting his basic physical needs including (but not limited to ) shelter, food and clothing.



(4) The provisions of this Act shall apply to a person who has a child or children but is not an elder within the meaning of this Act if the Board is satisfied that he is suffering from such infirmity of mind or body as prevents him from, or is affecting him in. maintaining himself.



Joinder of respondents.



26. A person against whom a maintenance order is sought (hereinafter referred to as "the Respondent") may serve notice in the prescribed form on other persons liable to maintain the applicant joining them as respondents to the application.



Maintenance orders.



27.





(1) The Board may, on an application made to it under section 25, make a maintenance order for the benefit of the applicant, if it considers that it is just and equitable that the respondent should maintain the applicant and that-





(a) the respondent is able to provide maintenance to the applicant, after meeting his own requirements and those of his spouse and children ; and



(b) the applicant is unable, despite efforts on his part, to maintain himself.



(2) When ordering maintenance for the benefit of the applicant, the Board shall have regard to all the circumstances of the case including (but not limited to) the following matters :-





(a) the financial needs of the applicant, taking into account reasonable expenses necessary to ensure the provision of basic amenities and the fulfilment of his basic physical needs ;



(b) the income earning capacity, property and other financial resources of the applicant and the manner in which the applicant has spent his savings or dissipated his financial resources ;



(c) any physical or mental disability of the applicant;



(d) the income, earning capacity, property and other financial resources of the respondent;



(e) the expenses incurred by the respondent in supporting his spouse or children ;



(f) the contributions and provisions, whether financial or otherwise, which the respondent has made for the maintenance of the applicant.



(3) If the Board is satisfied that the applicant has at any time prior to the application abandoned or neglected the respondent, it may reduce the quantum of maintenance ordered.



(4) The onus of proving the alleged abandonment, or neglect shall be on the respondent alleging it.



(5) Where there is more than one respondent, the Board may apportion the maintenance among the several respondents in such manner as may appear to the Board to be just and equitable.



(6) The Board shall, before hearing an application under this Act refer the differences between the parties to a conciliation officer for mediation between the parties.



Power of Board to order security for maintenance.



28.





(1) A maintenance order may provide for the payment of a lump sum, or a monthly allowance or periodical payment for such period as the Board may determine.



(2) The Board may, in awarding maintenance, order the applicant to-





(a) deposit such minimum sum as the Board may determine with a bank ; or



(b) purchase an annuity with an insurer with such minimum sum.



(3) The Board may, in making an order for maintenance, give directions as to the manner or method of payment.



Duration of orders for maintenance.



29.





(1) Except where an order for maintenance is expressed to be for any shorter period or where any such order has been rescinded, a maintenance order shall expire-





(a) if the maintenance was unsecured, on the death of the applicant or the respondent, whichever is the earlier ;



(b) if the maintenance was secured, on the death of the applicant.



(2) Where a maintenance order was made against more than one respondent, the death of a respondent shall not affect the liability of the other respondents the pay maintenance to the applicant.



(3) The applicant may apply to the Board to re-apportion the liability among the surviving respondents on the death of a respondent.



Power of Board to vary orders for maintenance.



30.





(1) The Board may vary or rescind any subsisting order for maintenance, whether secured or unsecured, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances of the applicant or respondents or where another person is joined as a respondent.



(2) An application for variation of a maintenance order may be made by-





(a) the applicant;



(b) a respondent;



(c) an approved person or organisation referred to in section 25(2); or



(d) in respect of secured maintenance, the legal personal representatives of a respondent.



(3) Where a maintenance order was made against more than one respondent or where another respondent is joined, the Board upon an application to vary the maintenance order, may reapportion the maintenance in such manner as it considers just and equitable in the circumstances.



Maintenance payable under Order of Board to be inalienable.



31. Maintenance payable to any person under this Act shall not be assignable or transferable or liable to be attached, sequestered or levied upon for, or in respect of, any debt or claim whatsoever.



Enforcement of maintenance orders.



32. Maintenance orders made under this Act shall be deemed for the purposes of enforcement, to be orders made by a Magistrate under the Maintenance Ordinance and may be enforced by the Magistrate having jurisdiction over the place where the applicant for whose benefit the maintenance order is made, resides, in the same manner as maintenance order made under that Ordinance.



Offence of contempt against or in disrespect of the authority of the Board or a member thereof.



33.





(1) Where any person-





(a) without sufficient reason publishes any statement or does any other act that brings the Board, or any member thereof into disrepute during the progress or after the conclusion of any inquiry conducted by the Board ;



(b) interferes with the lawful process of such Board.



(c) fails without cause, which in the opinion of the Board is reasonable, to appear before the Board at the time and place mentioned in the summons ; or



(d) fails without cause, which in the opinion of the Board is reasonable, to answer any question put to him or to produce any document, relevant to the inquiry being made by the Board,



such person shall be deemed to commit the offence of contempt against or in disrespect of the authority of the Board.



(2) Every offence of contempt committed against or in disrespect of the authority of the Board shall be punishable by the Court of Appeal as though it were an offence of contempt committed against or in disrespect of the Court of Appeal.



(3) Every complaint of a contempt committed against or in disrespect of the authority of the Board shall be communicated to the President of the Court of Appeal by letter signed by the Chairman of the Board.



(4) The President of the Court of Appeal may, upon his receiving a communication under subsection (3), issue a rule nisi for contempt of court on the person named in that communication as having committed the offence or contempt referred to in that communication.



(5) A person on whom a rule nisi is issued under subsection (4) shall be liable to be punished unless he shows cause to the satisfaction of the Court of Appeal.



(6) In any proceedings against any person for the offence of contempt committed against or in disrespect of the authority of the Board or member thereof, no member of such Board shall be liable to be summoned as a witness by the first mentioned person, but the Court of Appeal may, if it considers it necessary to do so, examine such member.



PART VII
MISCELLANEOUS



Regulations.



34.





(1) The Minister may make regulations in respect of any matter required by this Act to be prescribed or in respect of which regulations are required or authorized by this Act to be made,



(2) Every regulation made by the Minister shall be published in the Gazette and shall come into operation on the date of publication or on such later date as may be specified therein.



(3) Every regulation made by the Minister, shall as soon as convenient after its publication in the Gazette, be brought before Parliament for approval. Every regulation which is not so approved shall be deemed to be rescineded as from the date of disapproval but without prejudice to anything previously done thereunder.



(4) The notification of the date on which any regulation is deemed to be so rescinded shall be published in the Gazette.



Power of Council to make rules.



35.





(1) The Council may make such rules as it may consider necessary in relation to any matter affecting or connected with, or incidental to, the exercise, discharge and performance of its powers, functions and duties.



(2) Every rule made by the Council shall be approved by the Minister and notification of such approval shall be published in the Gazette



Powers of Council to inspect and search.



36. Any officer authorized by the Council may -





(a) enter and inspect the premises of any approved person or any voluntary organisation engaged in providing services or assistance to elders ;



(b) enter and inspect any premises on which he has reasonable grounds to believe that a person or voluntary organization not registered under this Act is providing services or assistance to elders:



(c) examine any book, register or record maintained by such person or organization and make extracts or copies therefrom ;



(d) interrogate any person in any such premises, for the purpose of ascertaining whether the provisions of this Act are being complied with.



Council deemed to be a scheduled institution within the meaning of the Bribery Act.



37. The Council shall be deemed to be a scheduled institution within the meaning of the Bribery Act, and the provisions of that Act shall be construed accordingly.



Protection of members and officers of the Council for action taken under this Act or on the direction of the Council.



38.





(1) No suit or prosecution shall lie against any member of the Council or any officer or servant thereof, for any act which in good faith is done by him under this Act or on the direction of the Council.



(2) Any expense incurred by the Council in any suit or prosecution brought by or against the Council before any court shall be paid out of the Fund, and any costs paid to, or recovered by, the Council in any such suit or prosecution shall be credited to the Fund.



(3) Any expense incurred by any such person as is referred to in subsection (1) in any suit or prosecution brought against him before any court, in respect of any act which is done or purported to be done by him under this Act or on the direction of the; Council, shall, if the court holds that the act was done in good faith, be paid by the Council, unless such expense is recovered by him in such suit or prosecution.



No writ to issue against person or property of a member.



39. No writ against person or property shall be issued against a member of the Council in any action brought against the Council.



Returns.



40. The Council may for the purpose of discharging its functions under this Act, require any person to furnish to the Council, such returns or information in respect of such matters and in such form as may be determined by the Council.



Offences.



41, Any person who -





(a) fails to furnish any return or information in compliance with any requirement imposed on him under this Act;



(b) knowingly makes any false statement in any return or information furnished by him ;



(c) willfully omits any matter in any return or information furnished by him ;



(d) resists or obstructs any authorized officer in the exercise by such officer of any power conferred on him by or under section 36 of this Act;



(e) fails to comply with a maintenance order made by the Board or any direction given by such Board ;



(f) contravenes any provision of this Act or any regulation or rule made thereunder.



shall he guilty of an offence under this Act and shall on conviction after summary trial before a Magistrate be liable to a line not exceeding one hundred thousand rupees or to imprisonment for a term not exceeding one year or to both such tine and imprisonment.



Offences by bodies of persons.



42. In the case of any offence under this Act committed by a body of persons, then -





(a) where such body of persons is a body corporate, every director, secretary and officer of that body corporate shall each be deemed to be guilty of that offence ;



(b) where that body of persons is a firm, every partner of that firm shall be deemed to be guilty of that offence :



Provided that, no such person shall be deemed to be guilty of an offence under this Act. If he proves that the offence was committed without his knowledge or that he exercised all diligence to prevent the commission of the offence.



Sinhala text to prevail in case of inconsistency.



43. In the event of any inconsistency between the Sinhala and Tamil texts of this Act, the Sinhala text shall prevail.



Interpretation.



44. In this Act, unless the context otherwise requires -



"child" includes an illegitimate or adopted child and a step child ;



"elder" means any person who has passed the age of sixty years ;



"local authority" means a Municipal Council, Urban Council, Pradeshiya Sabha and includes any authority created or established by or under any written law to exercise, perform and discharge, powers, duties and functions corresponding to or similar to the powers, duties and functions, exercised, performed and discharged by any such Council or Sabha. ;



"prescribed" means prescribed by regulation made under this Act;



"Provincial Council" means a Provincial Council established under Chapter XVII A of the Constitution.
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