Introduction:

Asylum seekers

Right to Asylum is a Universal Human Rights. Article 14 (1) of Universal Declaration of Human Rights (UDHR) states-

“Every one has the right to seek and to enjoy in other countries asylum from persecution”.

It is on this basis that historically, even before 1948 UDHR, rulers, chieftains and ordinary people fled in persecution from their own countries and sought safety and human security in other countries.

In the recent history of the world, we have literally millions of jews fleeing Europe to escape Nazi persecution during the second world war and millions of Muslims and Hindus escaping to Pakistan and India to escape persecution after the partition of British, India, similarly in the wake of the creation of independent, Bangladesh 10 million Bengalis sought temporary refuge in India.

In 1975 with the fall of Saigon, a Vietnamese boat, people in hundreds and thousands escaped to developed countries and in the wake of Soviet occupation of Afghanistan, three million Afghans sought and received Asylum in Pakistan and Iran. Asylum seeker movements in Africa and South America are too numerous to be included in a short introduction.

The United Nations High Commission for Refugees (UNHCR) established in 1950 is the world body entrusted with the protection and assistance to the million of refugees and asylum seekers worldwide.

In the early 1990s some who became subject of persecution following the failed insurgency sought refugee status outside the country. Even today, Tamil Asylum seekers travel to countries where they have relatives on the principle of family reunion.

The Right to seek asylum is recognised in the UDHR but the right to grant asylum is a sovereign right of the individual countries. Many of the countries who grant asylum with the exception of India and Pakistan have retified the 1951 UN Convention on the status of refugees.

The Right to grant asylum is a non-political humanitarian act and should not be considered an unfriendly act under international law. Hence, a policy of combative rhetoric condemning the countries granting asylum or refugee status to Sri Lankans is immature and naive.

- S.S. Wijeratne

Elders would be deciding factor at future elections - LAC Chairman

The number of elders (over 60 years) in Sri Lanka is estimated at 2.3 million and will continue to increase in the coming years. Elders who are all voters would be a deciding factor at future elections in Sri Lanka said LAC Chairman and member of the National Council for Elders addressing the District Representative Meeting of the Nuwara Eliya district recently.

The LAC Chairman further said the present day elders are comparatively healthier and could play a significant role in the development work if properly supported.

Elders should not be confined to grandchild care but should be encouraged to share their experience with the young generation.

The National Council for Elders established under the Protection of Elders’ Rights Law No.9 of 2000 developed volunteerism project where elders in villages organised themselves in Village Elders Committees. According to the National Secretariat of Elders, there are nearly 10,000 Elders Committees established in the country including the North and East provinces.

Director of the Elders Secretariat Geethamani Karunaratne said the National Council through the Provincial Social Service administration is actively promoting formation of Elders Societies, so that elders could meet their challenges at the village level using their experience and life time skills.

She also stated that Elders Committees islandwide are now functioning as focal points for many programmes of different Ministries.

LAC Director-General Justice Hector S. Yapa and Deputy Regional Manager of the People’s Bank, Piyasiri Waduge also spoke.

Question and Answers

Registration of births of Sri Lankan children born outside Sri Lanka

Question: We are Sri Lankans living in Italy for the last 12 years. We now have two children aged 5 and 2 years respectively. Please let me know whether

(a) My children could get Sri Lankan Citizenship automatically;

(b) Or is there any procedure to follow.

Please advice me.

Jith Fernando, Italy

Answer:

(a) No.

(b) You have to apply for the Sri Lankan Citizenship of your children through the Sri lankan Mission in your country or via the Department of Immigration and Emigration in Sri Lanka.

The following documents should be submitted:-

1. Application Form

2. Birth Certificate of the child (Consular Birth Certificate)

3. Birth Certificate of the Applicant (father and mother)

4. If the Applicant is a Sri lankan citizen by registration, the relevant Certificate.

5. Marriage Certificate of the parents.

6. Parents travel documents at the time of child’s birth.

7. Declaration that the applicant (father/mother) has not acquired citizenship of country other than Sri Lanka at the time of child’s birth.

The birth registration fees is as given below:-

* For application made within the prescribed period (one year - SL Rs. 1,000 - SL Rs. 500 should be paid for each delayed year.

Activities for which license is required

Question: In our society there are so many who are engaged in various business activities which affects environment and causing environment pollution.

Would you kindly let me know the prescribed activities for which a license is required under the Environmental Authority Act. An early reply would be greatly appreciated.

M.S. Pathirana, Thalawatugoda

(This answer is continued from last week)

41. Animal feed manufacturing industries having a capacity of 25 or more metric tons per day.

42. Cigarettes or other tobacco products manufacturing industries where 50 or more workers are employed.

43. Industries involved in surface treatment of metal or plastic including electroplating, galvanizing and powder coatingindustries.

44. Iron and steel mills.

45. Foundries with any type of furnaces.

46. Non-ferrous metal processing industries including secondary process, smelting and recovery of metals.

47. Metal fabricating industries or machinery, machinery parts or hardware items or electrical and electronic goods and equipment manufacturing or assembling industries where 24 or more workersare employed. (Including lathe workshops, welding shops, spraypainting industries).

48. Cement industries (clinker grinding, manufacturing or repacking).

49. Concrete batching plants having a production capacity of 50 or more cubic meters per day.

50. Glass or glass based product manufacturing industries.

51. Lime kilns having a production capacity of 20 or more metric tons per day.

52. Ceramic industries where more than 25 or more workers are employed.

53. Mechanised mining activities with multi bore hole blasting or single bore blasting activities with production capacity having 600 or more cubic metres per month.

54. Crushing or processing of non-metallic minerals (i.e. limestone, dolomite, apatite, rock phosphate, sand stone, feldspar, quartz, ilmenite, rutile, zircon, mica, graphite, kaolin, etc) excluding lime shall and granite crushing activities.

55. Granite boulders making or processing industries (extracting, blasting, slicing, polishing).

56. Granite crushing (metal crushing) industries having a total production capacity of 25 or more cubic meters per day.

57. Common wastewater (industrial or sewage) treatment plants.

58. Incinerators having a feeding capacity of 5 or metric tons per day.

59. Water treatment plants having a treatment capacity of 10,000 or more cubic meters per day.

60. Municipal solid waste and other solid waste composting plants having a capacity of 10 or metric tons per day.

61. Solid waste recovery/recycling or processing plants having a capacity of 10 or more metric tons per day.

62. Solid waste disposal facility having a disposal capacity of 10 or more metric tons per day.

63. All toxic and hazardous waste treatment facility or disposal facilities or recycling/recovering or storage facilities.

64. Industries involved in chemical treatment and preservation of wood excluding Boron treatment.

65. Saw mills having a milling capacity of 50 or more cubic meters per day or wood based industries where 25 or more workers are employed.

66. Hotels, guest houses, rest houses having 20 or more rooms.

67. Hostels and similar dwelling places where occupancy level is exceeding 200 or more.

68. Health care service centers generating infectious wastes, including medical laboratories and research centers.

69. Automobile or bicycle manufacturing or assembling industries.

70. Vehicles service stations or container yards having vehicle service activities excluding three wheeler and motor cycle services and interior cleaning.

71. Railway workshops or all bus depots having vehicle servicing activities.

72. All vehicle emission testing centers.

73. Electrical power generating utilities excluding standby generators and hydro or solar or wind power generation.

74. Printing presses with lead smelting or newspaper printing or printing process which generates wastewater or colour photographsprocessing centers.

75. Paper and Pulp Industries or corrugated cartons manufacturing industries.

76. Any industry where 200 or more workers per shift are employed.

77. Industrial Estates approved under the part IVC of the National Environmental Act including Katunayake and Biyagama ExportProcessing Zones.

78. Zoological gardens.

79. Transmission towers providing facilities for telecommunication and broadcasting.

80. Any industry not included above which discharges 10 or more cubic meters of wastewater per day or using toxic chemicals in its process.

For further details you can contact the Central Environment Authority, ‘Parisara Piyasa’, No. 4, Denzil Kobbekaduwa Mawatha, Battaramulla, Tel. Nos. 2872278, 2876641

Fundamental rights application

Question: I am engaged in a business of my own. Last week, a few policemen came in a jeep and asked me to accompany them to the police station. I asked why and was told that they needed to record a statement with regard to an alleged theft. Although I denied committing such an act, I was taken to the police and few officers assaulted me. That evening I found out that a rival business man who has connections with the police has been behind all this.

Kindly let me know what action I should take.

Godfrey Rodrigo, Kotahena.

Answer: Immediately, file a Fundamental Rights case naming all the Police Officers who were involved in taking you to the police and assaulted you. If there was inaction on the part of any superior officers, name them as parties as well.

If you received treatment at the hospital, obtain copies of the JMP report and documents relating to the medical treatment. Also make a complaint to the SP of that area.

Institution of action under the ICCPR Act No. 56 of 2007

Question: My husband died while serving as a public servant. As I am entitled to his pension under the Widows and Orphans Pension Scheme, I made a request for the same. So far no steps have been taken to pay me my husband’s pension.

Please advise me.

Mrs. D. Mubarak, Dehiwela.

Answer: First make sure whether you submitted all the relevant particulars. This you can do by writing a letter or by making inquiries at the Pensions Department.

If you do not get any response, you can institute action under the ICCPR Act No. 56 of 2007. This Act recognizes the right of citizens to access to public services. Action has to be instituted within three months.

If you get a reply denying your pension for unacceptable reasons, you can file a Writ Application against that decision.

Labour matter

Question: I have been working as a Storekeeper in a Company and suddenly my services were terminated with effect from 22.06.2008. False allegations were made to the effect that there was a shortage of goods and thus the Company has lost confidence in me. At the moment I am without employment and facing severe hardships.

Please advise me.

M. Murshad, Borella.

Answer: I presume that the reason for termination is mentioned in the letter of termination. However, if there was no inquiry held into the said allegations, you can make an application to the Labour Tribunal (which has the jurisdiction over the area you last worked) within six months of termination.

Even if there was an inquiry prior to termination, if you were not satisfied as to the manner in which it was held, i.e. if you were not given a proper hearing, then too you can make an application.

Acquisition of Dual Citizenship of Sri Lanka

Question: I am a Sri Lankan living in Germany for the last 10 years. I have already obtained citizenship in Germany. I wish to obtain dual citizenship. Please let me know the documents required to obtain dual citizenship.

M. Yehiya, Wattala

Answer: The documents required are -

01. Applicant’s Original Birth Certificate and a copy.

02. If the Applicant is a citizen of Sri lanka by registration, the relevant Certificate and a copy.

03. If the Applicant is married, the Marriage Certificate and a copy.

04. Applicant’s Foreign Citizenship Certificate/Foreign Travel Document/Permanent Residence Visa.

05. Applicant’s current and/or previous Sri Lankan Passports and copies or an affidavit.

06. If applying under professional category, applicant’s Educational/Professional Certificate and a copy (minimum a two year Diploma/Trade Certificate from a recognized Institute).

07. If applying under wealth category, original of the documentary proof of applicant’s assets such as lands or other immovable properties in Sri Lanka worth of Rs. 2.5 Million or above and a copy. Deed Valuation report extract and title report for the same should be also submitted.

08. If applying under 2.5 Million category original of the documentary proof minimum one year Fixed Deposit in a bank in Sri Lanka of an amount not less than 2.5 million.

09. If applying under age category, applicants over 55 years of age original Birth Certificate and a copy should be submitted.

10. If applying under Fixed Deposit US$ 25,000 category, original of Fixed Deposit Certificate and a copy exceeding US$ 25,000 for a period of three years in a bank in Sri Lanka.

11. If applying under Fixed Deposit US$ 50,000 category, original of a Fixed Deposit Certificate and a copy exceeding US$ 50,000 for a period of three years in a bank in Sri Lanka.

12. If the documents referred to above are submitted without originals, they should be attested by the Sri Lankan Mission accredited to that country, or the nearest Sri Lankan Mission or Solicitor or a Justice of the Peace of the country in domicile.

Application form to obtain dual citizenship could be obtained from

Sri lanka Mission in the country of residence Citizenship Division,

Ministry of Internal Administration, Department of Immigration and Emigration, 2nd Floor, Ananda Rajakaruna Mawatha, Colombo 10.

Financial Ombudsman in Sri Lanka

Question: I would like to know when the Financial Ombudsman in Sri Lanka was established and who was the first Ombudsman in Sri Lanka.

I would greatly appreciate if you could give me more details of the Financial Ombudsman in Sri Lanka.

J. FRAZER, Negombo

Answer: A scheme called the “The Financial Ombudsman, in Sri Lanka” was established with the concurrence of the Central Bank of Sri Lanka. The date of commencement was 01 st December 2003. The first Ombudsman is Walter Laduwahetty, a well-known Laywer and retired Judge.

The Financial Ombudsman has the power to inquire into and settle any complaints and disputes between individual customers and the financial institutions covered by the Ombudsman Scheme.

The financial institutions that are voluntarily participating in this scheme are only those regulated and supervised by the Central Bank of Sri Lanka. Currently they consist of the following.

* Licensed Commercial Banks

* Licensed Specialised Bank

* Registered Finance Companies supervised by the Central Bank

* Primary Dealers licensed with and supervise by the Central Bank

* Leasing Companies licensed with and supervised by the Central Bank

The Financial Ombudsman is a person of high repute with experience in Banking and Financial Service. He has been selected by a panel of representatives from the Central Bank, the Securities Exchange Commission, the Institute of Chartered Accountants, the Bar Association, the Organisation of Professional Associations and a representative of the participating financial institutions.

The scope of Ombudsman

Initially, any customer of a Bank or a customer of any other participating financial institution can file a complaint with the Ombudsman on any of the following grounds.

a. Non-payment/inordinate delay in payment or collection of cheques, drafts, bills, etc.

b. Non-issue of drafts to customers and others.

c. Non-adherence to prescribed working hours.

d. Failure to honour Guarantee/Letter of Credit commitments by Banks.

e. Claims in respect of unauthorized or fraudulent withdrawals from deposit accounts, current accounts, savings accounts.

f. Fraudulent encashment of a cheque/bank draft.

g. Complaints by customers pertaining to the operation of any customer accounts maintained with the Financial Institution.

h. Complaints from export customers on the mis-handling Export Bills, Collection of Bills and delays in receipt of export proceeds.

i. Complaints from non-residents having accounts in Sri lanka in relation to their remittances to Sri Lanka and operations in their accounts.

j. Complaints relating to the violation of directives of the Central Bank of Sri Lanka in relation to Financial Services.

k. Complaints in respect of charges/fees levied.

l. The Financial Ombudsman may also deal with any such other relevant matters as may be specified by the Central Bank from time to time.

Before the Financial Ombudsman Scheme came into operation, each Bank and Financial Institution covered by the Scheme has established and nominated in each of their Institution a senior and experienced officer designated as the “Complaints Settlement Officer” or “Complaints Resolution Officer” (or similar name).

Prior to any complaint being submitted to the Ombudsman, the complaint will be examined by such officer and only in the absence of remedial action satisfactory to the customer will be Ombudsman entertain/examine any complaint.

If you need further details you can visit the Ombudsman’s Office which is located at No. 143A, Vajira Road, Colombo 5. (Tel. No. 2595625, Fax No. 2595624).

Re: adoption of a Sri Lankan child

Question: My brother is married and domiciled in the United Kingdom. They do not have children. They plan to adopt a Sri Lankan child. Can you please explain to me the procedure to follow and legal steps to be adhered to?

M. Chickera, United Kingdom, Sent by Email.

Answer: Your brother and his wife should fulfil the following criteria prior to applying for a child for adoption.

1. Both of them must be over 25 years and not less than 21 years older than the child in respect of whom the application is made.

2. A report (Home Study Report) on the mental health of the applicants, and their social, religious and financial background and their suitability to adopt a child is necessary and should be obtained from institutions such as Overseas Social Welfare Agencies/Departments; which are recognized in the United Kingdom and authenticated by the accredited representative of the Republic of Sri Lanka in the United Kingdom.

If your bother and his wife fulfil the above criteria, can forward their joint applications with a Home Study Report (in duplicate); addressed to the Commissioner, Department of Probation and Child Care Services, 150A, Nawala Road, Nugegoda, Sri Lanka. (Telephone No. 009411 285,3596, Fax. No. 009411 285,2393, E-mail: [email protected]).

3. Passport size photographs of the applicants should be attached to both copies of the Home Study Report. The applications should be sent to the Department of Probation and Child Care Services in Sri Lanka through their respective Adoption agencies and the Sri Lanka Overseas Mission in United Kingdom for authentication and transmission. They may include their preferences, if any.

4. In addition to the Home Study Report applicants should forward certified copies of their Birth Certificates, Marriage Certificate, Health Certificates, Employment Records, Police Report on the conduct and activities of the applicants etc., Each and every page of the document should be authenticated by the Sri Lanka High Commission in the United Kingdom.

5. Allocation of children can be made only from the State, Receiving Homes and Voluntary Children’s Homes that are registered by the Department of Probation and Child Care Services and only by the Commissioner.

6. No foreign applicants can find children for adoption privately. The applicants should abstain from making any payment or giving any reward to any person in consideration of the adoption. Legal action would be taken against those who commit this offence.

7. When the Commissioner finds a suitable child, a letter will be issued intimating Commissioner’s decision to the adoption agency in the UK. The Adoption agency is expected to intimate the same to the applicants.

8. The applicants will have to come to Sri Lanka only after receiving Commissioner’s letter of allocation. The applicants will have to stay about 4 to 5 weeks in Sri Lanka, until all formalities connected with the adoption are completed. After their arrival in Sri Lanka applicants should present themselves for an interview at the Department of Probation and Child Care Services.

After the interview of the applicants, they will be issued with a letter by the Commissioner authorizing them to see the child at the particular children’s home. At the same time the applicants should arrange to institute action in the District court. After the adoption, copies of the adoption order should be obtained upon application to the court that made the order.

A copy of the Certificate of Adoption should be obtained from the Registrar-General. The Certificate of Adoption (after registration) should be attached to the application for the issue of a passport of the child. Application for the issue of passport should be made to the Department of Immigration and Emigration.

Further details can be obtained from the Adoption of Children (Amendment) Act No. 15 of 1992.

List of developmental Legal Aid desks in Legal Aid Commission

01. Anti-Corruption Desk.

02. Apprentice Training Programme and Bench & Bar Desk

03. Child Rights’ Desk

04. Consumer Protection Desk

05. Disabled Persons Desk

06. Elders’ Right Desk

07. Human Rights Bureau.

08. Internally Displaced Persons Desk

09. Migrant Workers Desk

10. Prisons Desk

11. Protection of Women’s Rights Desk

12. Public Officers Awareness Desk

13. School Programme & Essay Competition

14. Labour and Environment Protection Desk.

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.

Yours questions should be addressed to:

Daily News Legal Aid Page,

Chairman,

Legal Aid Commission,

No. 129, Hulftsdorp Street, Colombo 12.

Email:[email protected]

Website: www.lawaid.org