Introduction:

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 in history.

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 instruments.

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 se.

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 refugees.

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 contentious.

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 officials.

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.

S.S. Wijeratne

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.

M. Fuard, Dematagoda

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 trees.

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.

N.W.S. Senaratna, Kalutara South

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.

Mrs. F. Zarook, Kirulapone

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 payments.

S. Gurusinghe, Ratmalana

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 the employer.

(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.

M. Pilapitiya, Kottawa

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 Victimisation Committee.

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 changed.

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 advice me.

Kanthi Munidasa, Negombo

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 rectified?

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.

A.L. Perera, Matale

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, Battaramulla.

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.

M. Silva, Godagama

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”),

Stamp fees.
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.
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 house.
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 Card before.

Land matter

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.

M.Y.M. Meedah, Hemmathagama

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.

LAC centres

Centre				TEL.NO

01. Head Office			2433618, 5335281
02. Tsunami Regional Center	060-2137153
03. Welikada Prison		5335329
04. Bandarawela			057-2224733
05. Matale			060-2664588
				071-4447151
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
				026-2222293
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