Legal Aid Commission
Compiled by Kalani A. Medagoda, AAL
Need for a SAARC Convention on Refugees
One and a half billion or nearly one fifth of humanity lives in the
countries of the SAARC Region. According to the current population
trends in the region, India will overtake China as the most populated
country in the world and Pakistan will be more populated than either USA
or Russia in the coming decades.
Hence, movements of populations across borders, whether they are
economic or political refugees, will continue to engage the policy
makers as a key component of the regional humanitarian agenda.
From a population displacement perspective, South Asia Region has a
unique history. India and Pakistan and later Bangladesh got defined from
massive refugee movements.
After the 1947 partition, 7.5 million Hindu and Sikh refugees from
Pakistan crossed over to India and 7.2 million muslim refugees from
India crossed to Pakistan. It was the largest recorded refugee movement
There was no or little international assistance in this massive and
painful humanitarian crisis. In 1971, 10 million Bengalis crossed to
India during the war of independence of Bangladesh.
In 1979, 3.5 million Afghans fleeing Soviet intervention in that
country sought and received asylum in Pakistan of which 1.2 million are
still in refugee villages.
In 1992, Bangladesh was inundated for a second time in recent history
with the influx of 250,000 from Myanmar, of whom nearly 30,000 refugees
had still failed to repatriate. Similarly, 90,000 Bhutanese of the Nepal
region were expelled and are still located in refugee camps in the Jhapa
district of Nepal.
Sri Lanka was never known as an asylum country. Since 1983, Sri
Lanka, has produced apart from over 500,000 Sri Lankan “jet refugees” to
the western world, three waves of refugees to India in 1983-87; 1990-91
and after April 1995.
A major portion of Sri Lankan refugees in Tamil Nadu had voluntarily
repatriated but still some 100,000 have remained behind Since the 1960s,
India hosts over 100,000 Tibetan refugees and some 50,000 Buddhist
Chakma refugees from the Chittagong hill tracts in Bangladesh, some of
whom repatriated recently under a political settlement.
India also has permitted the UNHCR to assist 20,000 Afghan refugees
on purely humanitarian grounds. Maldvies is the only SAARC country who
neither produces nor hosts a significant refugee population.
Despite these past and existing refugee movements and deep rooted
humanitarian traditions of asylum, none of the SAARC countries has
acceded to the 1951 International Convention on Refugees or its 1967
Protocol which had been ratified by 135 countries.
However, all the SAARC countries, other than Bhutan and the Maldives,
have officers of the United Nations High Commissioner for Refugees,
(UNHCR), the UN Agency responsible for the proportion of the refugee
instruments and marshalling of international humanitarian assistance on
behalf of the refugees.
The UNHCR provides international protection and assistance to Afghan
refugees and from Madras, monitors the voluntary nature of the Sri
Lankan Tamil refugee repatriation.
The gamut of reasons adduced for the non-accession to the 1951
Convention or the 1967 Protocol by SAARC countries other than the
island-States are very similar in content.
They argue that they have rich traditions of asylum comparable with
international standards sometimes even going beyond what was practiced
by some of the party-signatories to the international refugee
Therefore, they would continue to deal with refugee issues on an
adhoc bi-lateral policy basis but welcome international humanitarian
assistance on the basis of burden sharing. (India is an exception).
SAARC countries further argue that the persecution based 1951
Convention or 1967 Protocol is inadequate to comprehensively address the
current refugee issues in the region which were mostly the result of
internal conflicts and not due to fear of persecution by the States per
In support of their contention that the international refugee
instruments were inadequate, they cite the regional refugees instruments
of Africa, the 1958 Organisation of African Unity (OAU) Convention and
on refugees in Latin America, and 1984 Cartegena Declaration on
It is in the above context, that a regional convention or a
declaration on refugees by SAARC countries becomes timely and relevant.
The SAARC Charter provides against discussion of bilateral and
contentious issues. Summit retreats had somewhat overcome this
limitation. Refugee issues when discussed bilaterally without regional
or international commitment to a set of guiding principles, could become
Refugee situations in South Asia had become chronic and had affected
both national security and inter-State relations due to the reluctance
of states to discuss them on purely humanitarian basis.
A regional agreement on fundamental questions such as the definition
of a refugee, the granting of asylum and the exceptions thereto, the
cardinal principle of non-refoulement, or the voluntary nature of
eventual repatriation of refugees would reduce the room for friction
between the state interlocutors.
A SAARC Refugee Convention/Declaration would also mean a great step
forward in developing a humanitarian law regime in the region.
The immediate beneficiaries would, of course, be the refugees
themselves in different SAARC countries of whom over 70% are women and
children. In the absence of normative refugee standards, refugees in
South Asia, today, live in fear of capricious actions by refugee
Since all refugees are technically considered illegal aliens, they
have no institutional protection or the protection of the principle of
the Rule of Law. The prevailing political and security preoccupations of
each country determine the standards of treatment of refugees.
These standards may differ from time to time, from one country to
another on the whims and fancies of the refugee officials. In short
Article 14 of the Universal Declaration of Human Rights; ‘Everyone has
the right to seek and enjoy asylum from persecution’ is reduced to
hollow international legal rhetoric.
In developing a regional convention/declaration on refugees, SAARC
countries would only be recogniszing and refining the existing
traditional humanitarian policies.
They will be developing a set of non-contentious humanitarian
principles which will enhance the organisational solidarity and its
commitment to respect human rights. It will further strengthen the SAARC
position in the international fora.
Such a convention or declaration would not be a document borrowed
from outside, unsuitable for specific needs of the problem of refugees
in the region but a SAARC developed piece of international law.
Questions and answers
What is Certificate of Origin?
Question: I am working as a trainee wharf clerk in a Clearing
and Forwarding Agency. During the discharge of my duties I am asked to
attach the Certificate of Origin along with the other export documents.
Please let me know what you mean by a Certificate of Origin. Since I am
a trainee in the field, I would like to know exactly what this document
means. Kindly clarify.
Answer: A Certificate of Origin (COO) is a document which is
used for certification that the products exported are wholly obtained,
produced or manufactured in a country of origin. It is generally an
integral part of the export documents.
A Certificate of Origin, apart from indicating the country of origin
of the export products, enables the exporting countries to obtain
specific import tariff concessions from the importing countries.
Causing nuisance to others
Question: My house and coconut garden of 15 perches is
situated adjoining a big rubber land and the branches of the rubber
trees along the boundary are overlapping the coconut trees preventing
their growth. About two trees are close to my house. I complained about
this to the Pradeshiya Sabha some time back.
They cut only the branches of the trees close to the house, but these
have grown again causing the same obstruction. The officer from the
Pradeshiya Sabha told me that he had no authority to cut the other
The coconut trees are about 10 years old but, do not bear fruits
though I manure the trees. I am reluctant to go to court as I have to
spend money and time making a new enemy.
But I will be compelled to do so if there is no alternative. Please
instruct me as to what action I should take through your Daily News
Legal Aid Page to get over this nuisance.
Answer: Every person is under a common law, duty to use his
property in such a way as not to cause a nuisance to anyone else. In
your case you have to first discuss your problem with the owner whether
he will cut the branches of the trees himself or whether you can do it.
Other wise you can make a complaint to the Grama Sevaka. If the
matter cannot be settled through the Grama Sevaka, you can make a
complaint to the police.
On your complaint, the police will refer your matter to the Mediation
Board. If no settlement is possible through the Mediation Board, you can
seek relief from the courts. We would however like to advice you to
settle this matter amicably as other wise you may have to incur
unnecessary legal expenses.
Need Legal Assistance
Question: My husband met with an accident two months ago. I
have two schoolgoing children. I am a housewife with no income. I need
legal assistance and proper legal advice.
Answer: You can file action in the District Court claiming for
damages within two years from the date of the accident.
For further legal assistance/advice, you could call over at the Legal
Aid Commission, Head Office at No. 129, Hulftsdorp Street, High Court
Complex, Colombo 12.
Re: Payment of Gratuity
Question: I am working as a General Clerk in a Mercantile
Company and my services were terminated for inefficiency. I was not paid
my gratuity. Kindly advice me whether I am entitled to my gratuity
Answer: Any employee who has worked for a period of five
completed years without any interruption in service is entitled to claim
gratuity under the Payment of Gratuity Act No. 12 of 1983.
It could be permanent, casual, or on contract. As long as he works
continuously worked without a break and completes five years will
qualify for gratuity.
If the gratuity is not paid within 30 days from the date he ceases to
be an employee, the Employer will be called upon to deposit with the
Commissioner of Labour the amount due as gratuity along with the
surcharge as provided in the Act.
The Employer is entitled to make deductions from the gratuity payable
under the Gratuity Act in the following circumstances:-
(a) the termination of services for reasons of fraud,
misappropriation of the employer’s funds.
(b) the termination of services for willful damage to the property of
(c) the termination of services for causing the loss of goods,
articles or property of the employer.
The forfeiture can be made only to the extent of the damage or loss
caused. Loans and advances cannot be deducted from gratuity payments. A
Labour Tribunal can review the amount deducted from gratuity payments.
HRC orders cannot be implemented. Is this true?
Question: I am a teacher working at a Vocational Training
School in the Matara District. I am have an appeal to the Political
Victimisation Committee and a decision has been given to promote me with
increment with effect from 03.02.1994.
However, since it was not implemented, I made a complaint to the
Human Rights Commission. I heard from a friend of mine that HRC orders
cannot be implemented. Is this true? Please advice.
Answer: The answer is ‘Yes’. Even though the Human Rights
Commission is empowered to make an order and/or recommendation, there is
no mechanism to implement the same. According to your question it is not
clear to us as to when you received the order of the Political
However, if it is given in the recent past, although one month has
lapsed, you can file an application on the basis of continued violation
of your rights under Article 12 (1).
It is advisable to get clear instructions from a lawyer before you
proceed to file action. The Legal Aid Commission has already set up a
Human Rights Bureau. If you need any assistance you could visit our
Bureau which is situated at the Legal Aid Commission, Head Office at No.
129, Hulftsdorp Street, High Court Complex, Colombo 12.
Filing for divorce
Question: I got married last year with a person with a good
family background. Thereafter the behaviour of my husband has totally
Later I realised that my husband is living with another woman in
Kandy. I now want to file for divorce on the basis of adultery. Please
Answer: If you intend filing an action on the basis of
adultery, in that event you have to find the name and address of the
woman who has been committing adultery with your husband. It is also
important to trace out the place and the particular period. The burden
is on you to prove that your husband has committed adultery.
Non-registration of deed of gift by lawyer/incorrect title report
given by lawyer
Question: 1. When a lawyer, who is a Notary is requested to
write out a Deed of Gift, he has to have the said Deed registered at the
Land Registry. It was discovered that he had not registered the Deed,
when the Deed was submitted to a Bank to obtain a loan. How can this be
2. When a lawyer gives an incorrect title or pedigree report, what
shall the client do.
Your reply to the above two questions is kindly solicited.
Answer: 1. According to Section 7 of the Registration of
Documents, Ordinance, a registered Deed has priority over unregistered
Deed in case there is a disputed interest over the same property.
Therefore, you should instruct the Notary who prepared your Deed of
Gift to register the Deed with the relevant Land Registry. If the said
Notary refuses to do it, you can ask another Notary to do the
registration of your Deed.
2. Normally a title report is prepared and certified by an
experienced Notary stating the chain of title systematically and that
the title is clear. This is done after the title search has been carried
out by the Notary.
In doing so that Notary has to examine all relevant documents and an
abstract of title is prepared prior to preparing a report on title.
The pedigree is also prepared before the title report stating that
the chain of title from the first owner to the present owner devolves
for more than 30 years. Every Notary is compelled to exercise due
diligence to his duties as a Notary. Therefore, you can make a complaint
to the Registrar General’s Office, Notary Division, Koswatte Road,
Applications for identity cards for the first time
Question: I am 35 years old. I am married and have one child.
We are living in Kolonnawa for the last 15 years. My name appears in the
electoral list. I have a birth certificate but do not have an identity
card. T want to know the qualifications required for National Identity
Cards issued for the first time. When I approached the Grama Niladhari,
he informed me that I have to prove that I do not have an Identity Card
earlier. Please advice me.
Answer: Qualifications required for National Identity Cards
issued for the first time.
Form RPD/V/1 (white or similar to white)
The applicant should be lawful resident of Sri Lanka and should have
completed 16 years of age.
Documents to be attached with the applications for an identity cards
for the first time.
Duly perfected Birth Certificate or presumptive age certificate.
If the birth certificate or presumptive age certificate is not
available, a nil statement of register of birth and an affidavit should
be submitted along with possible documents stated below:
School leaving certificate, Baptismal certificate, Copies of
children’s birth certificates indicating, the birth of applicant, Birth
extract, Citizenship Certificate (if date of birth is indicated).
Five copies of colour photographs (1 3/8”x7/8”),
Applicants below 17 years: stamps to the value of Rs. 3.00.
Applicants over 17 years: stamps to the value of Rs. 13.00.
Documents to the furnished to prove residence.
Residential certificate issued by the Grama Niladhari.
In the absence of such certificate one or more of the following
Documents to be furnished to prove residence.
Residential certificate issued by the Grama Niladhari.
In the absence of such certificate one or more of the following
documents should be produce.
Certified extract of the electoral list.
Certified copy of monthly statement of bank Accounts.
Certified copy of telephone bills.
Certified copy of electricity bills.
Certified copy of the deep pertaining to the ownership of the land or
If the house is leased or rented, relevant agreement and receipts for
payments of rates.
Temporary residents should forward the copy of the letter which
provided information to the police along with above documents.
You can also submit an Affidavit to the Grama Niladhari and inform
the Divisional Secretariat Office that you have not obtained an Identity
Question: Please be kind enough to give clear answers to the
following questions on some legal matters.
1. I have distributed my lands and properties as gifts to my sons and
daughters by writing Deeds through a Proctor.
But, I have not legally divided the respective portions after
surveying the land.
Will these deeds be valid for them? Or else should I get them
surveyed and divide the portions with accurate boundaries by drawing up
a plan for each portion of the land?
2. In our family, the lands and properties possessed by our father
have been gifted to us (sons and daughters) in the form of deeds without
being surveyed an planned. Our father passed away.
Now we brothers and sisters have put up fences to our portions of the
land. Will this arrangement be valid in future? Should we survey the
entire land and divide the respective portions with Plans.
Answer: Since the Deed has been properly executed, we can say
it is a valid Deed. With regard to the second matter, it is always
advisable to have the said land properly surveyed and divided, as
otherwise it may lead to unnecessary legal problems in the future.
Legal Empowerment Programme in Trinco
The United Nations High Commission for Refugees (UNHCR) through the
Alternative Disputes Resolution Institute (ADRI) and the Legal Aid
Commission (LAC) would be commencing a legal empowerment programme for
Grama Niladharies in the Trincomalee district next week.
The training programme will focus on IDP issues, local conflict
resolution through developing mediation skills, implementation of
language rights provided in the Constitution. Among the other subjects
scheduled for discussion are anti-corruption and legal provisions in the
new ICCPR Act No. 56 of 2007.
A team of trained professionals proficient in Tamil and Sinhala will
be conducting courses under supervision of Divisional Secretaries and
Chief Executive Officer of ADRI, Anne Thirunavukarau, AAL.
01. Head Office 2433618, 5335281
02. Tsunami Regional Center 060-2137153
03. Welikada Prison 5335329
04. Bandarawela 057-2224733
05. Matale 060-2664588
06. Avissawella 060-2362219
07. Ratnapura 045-2226899
08. Negombo 031-5677111
09. Kalutara 034-5628860
10. Gampaha 033-5677998
11. Polonnaruwa 027-2222293
12. Anuradhapura 025-2224465
13. Kandy 081-2388978
14. Kurunegala 037-2229641
15. Galle 091-2226124
16. Hambantota 047-2221092
17. Nuwara Eliya 052-2235260
18. Moneragala 055-2276891
19. Ampara 063-2223496
20. Kegalle 035-2231790
21. Chilaw 032-5672457
22. Akkaraipattu 067-5675333
23. Balapitiya 091-2255753
24. Matara 041-2233815
25. Vavuniya 024-2221899
26. Trincomalee 026-5676023
27. Kalmunai 067-2223710
28. Jaffna 021-2224444/077/735910
29. Batticaloa 065-2226359
30. Panadura 038-5677100
31. Kuliyapitiya 037-2284611
32. Mahiyangana 055-2258332
33. Mahawa 037-2275075
34. Horana 034-2265244
35. Mathugama 060-2444262
36. Attangalla 033-2297020
37. Dambulla 060-2682238
38. Deniyaya 060-2428006
39. Mawanella 035-2247272
40. Marawila 032-2254443
41. Warakapola 037-2277075
42. Juvenile Court, Bambalapitiya 2507687
43. Nugegoda 2809068
44. Welimada 060-2577019
45. Kantalai 077-4444260
46. Tambuttegama Tel.not fixed yet