Archives

by S. S. Wijeratne, Chairman, Legal Aid Commission

Seven displaced families at Maradana Welfare Centre in Beruwala were the lucky recipients of 05 perches each from philanthropist, M. S. M. Zavahir, to build their post tsunami houses. However, the occupants of the undivided land called Pallatutotam alias Addarawalautotam resisted the legal claim of the displaced persons and chased them away. There are bound to be legal disputes in the making.

In the 2nd case, 37 displaced families in and around Maradana Welfare Centre, which is situated in a private land, had requested authorities to re-locate them in transit shelters in a land belonging to the Urban Development Authority. An NGO was willing to build the transit shelters.

However, some youths in the village who have used the land as a Volleyball court have refused to allow the use of this state land to build transit shelters for the tsunami victims. Yet another dispute is in the making.

Legal Aid Commission (LAC) Mobile Legal Documentary Teams interviewing tsunami victims in the welfare centres are confronted with innumerable legal disputes of the victims. The destruction of almost all the legal documentation such as deeds, survey plans, hire purchase agreements, pawned article receipts, employment contracts have already created complex legal problems.

Documents relating to legal identity - i.e. identity cards, birth, marriage and death certificates are being gradually restored by the relevant departments but will take considerable time. Absence of documents, specially death certificates, has already created a situation where unscrupulous persons have forwarded forged documents and recovered money illegally.

In the assessment of LAC, legal disputes relating to property, persons, employment and commercial contracts are bound to arise in thousands.

The existing courts systems would be further overloaded. In any event, it would not be humane to permit the tsunami victims to go through protracted and expensive litigation. It was in this context that the LAC requested the Minister of Justice and Judicial Reforms, John Seneviratne to consider extending Mediation (Special Categories of Disputes) Law No. 21 of 2003 to cover all disputes of tsunami affected persons in the relevant districts.

The Ministry has responded positively and informed that the proposal be given earnest consideration. Ministry also has requested information disclosed to Mobile Legal Services on the type of disputes that should be covered by the Special Mediation Boards.

Why mediate?

When Mediation (Special Categories Act) No. 21 of 2003 was presented in Parliament, its constitutionality was challenged before the Supreme Court. The petitioners contended that the Special Mediation Act which could be extended by the Minister to cover "social and economic" issues is interfering with the judicial process.

The Supreme Court rejected the contention on the basis 'that Minister can only prescribe by Gazette Notification, types of disputes to be referred and the qualification of the Mediators'.

Panel of mediators was not appointed by the Minister but by the Mediation Boards Commission appointed under Mediation Boards Act No. 12 of 1988 by the President.

Three out of five Commissioners should have held judicial office either in the Supreme Court or in the Court of Appeal. Independence of the Special Mediation Commission Boards is thus secured.

The Supreme Court also observed that "Mediation could be described as a more democratic way of settling disputes than the adjudication of the dispute in a court of law".

It is a global trend to settle disputes through consensual interest based mediation or "win-win" strategies. Disputes resolution mechanism alternative to adjudication is the current trend. As the Supreme Court further observed, "mediation which has its roots in the times of the ancient Sinhalese kings dating from 425 BC is an inexpensive and expeditious measure for settling disputes".

Win-win resolution of disputes made popular in the modern world by Professors Uri and Fisher of the Harvard Negotiation Project was first exposed to the world by Lord Buddha in Dhamma Pada.

In verse 201, Buddha enunciated that "victory breeds hatred. The defeated live in pain. Happily the peaceful live, giving up victory and defeat". Other religious leaders have expressed similar views.

Community mediation of disputes which commenced with Act No. 12 of 1988 has been a silent success story of Sri Lanka. Upto 2003 the Mediation Boards settled 637904 of 1,012,336 or 63% disputes referred for settlement, a remarkable achievement.

Mediation Boards Commission and Ministry of Justice trained nearly 5,000 mediators, some of whom reside in tsunami affected areas and could be a source from which Special Mediation Panels could be set up.

Given the vulnerable nature of the tsunami victims, it is imperative to establish an alternative dispute resolution mechanism which is expeditious and inexpensive to settle the innumerable kinds of legal disputes that are bound to arise.

The Minister of Justice is empowered under Special Mediation Act to make the law applicable to tsunami related disputes by Gazette Notification. This could be done within weeks and law would become operative. The regulations will be brought before Parliament for approval. The process is much quicker than enacting new legislation.

Advantages

Special Mediation Boards have the following advantages:

(i) The categories of disputes will include tsunami affected property, persons and employment could be identified. Issues arising out of reconstruction and rehabilitation could also be included (Section 2.3).

(ii) As the disaster situation calls for competent qualified, political neutral mediators, professional categories such as lawyers, engineers, architects could be included (4.2)

(iii) The mediators could be paid for their professional services (5.2)

(iv) The mediators would undergo special training before becoming eligible to function as mediators.

(v) The parties to the dispute have the freedom to select mediators for the Boards (Section 10)

(vi) The dispute needs to be settled within 60 days of constitution of the Board or issue a certificate of non-settlement enabling the disputants to seek adjudication from courts of law or Labour Tribunal (Sec. 15 (1)

(vii) Act No. 21 of 2003 enables the pending cases in the courts of law or Labour Tribunals in respect of stipulated categories of disputes to be referred to special mediation with written consent of parties.

Special Mediation Law of 2003, has not so far been made applicable to any category of disputes. The unprecedented situation brought about by the tsunami disaster is an appropriate situation to make the law applicable.

This would help victims to resolve their disputes amicably without expenses which anyway they cannot afford.The Ministry of Justice and Judicial reform should be nationally supported to make this initiative a success.

www.ceylincoproperties.com

www.Pathmaconstruction.com

News | Business | Features | Editorial | Security
Politics | World | Letters | Sports | Obituaries

Produced by Lake House
Copyright © 2003 The Associated Newspapers of Ceylon Ltd.
Comments and suggestions to :Web Manager