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DateLine Friday, 6 March 2009

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Compiled by Kalani A.Medagoda, AAL

Refugees (IDPs)

According to the original 1951 UN definition, a refugee is a person leaving his/her country of origin for fear of persecution due to reasons of race, religion, nationality, political opinion or membership in a social group.

The millions of war refugees during and following Second World War resulted in the 1951 UN Convention on refugees and the Statute of the Office of UN High Commissioners for Refugees, the global refugee agency.

Since 1950, inter and intra state conflicts and oppressive dictatorships have driven millions of citizens from countries such as Afghanistan, Bangladesh, Cambodia, Vietnam, the states of sub- Saharan, Africa and during the past decade from the fragmented states of former Yugoslavia.

In view of the complex character of new refugee flows, the definition of a refugee was broadened with new definitions being adopted by the Organization of African Unity and the Latin American Cartagehna Declaration.

The new definitions included persons escaping a country for fear of gross violation of human rights and generalized violence due to break down in the law and order.

In Sri Lanka, the refugee exodus commenced in 1983 with the 'Black July' riots and asylum applications of tens of thousands of Tamils were accepted by the developed countries and India.

As most of the Tamil refugees flew to far off countries using jet planes, they came to be known as "Jet Refugees".

However, the vast majority of conflict displaced poor could not afford to fly or go by boat to India and remained Internally Displaced Persons, (IDPs) mostly living in welfare centers set up by the Government.

The refugee diaspora is likely to increase with the military defeat of the LTTE as many of the organisation's activists and sympathiser are bound to join their brethren abroad.

Many Asylum grating countries are bound to accept the new asylum applications applying international refugee definitions. However, unlike in the 1980s as the LTTE is now proscribed as a terrorist organisation in many western countries, asylum applications of LTTE connected persons are likely to be rejected.

In the context of this unfolding refugee dynamics, no effort should be spared to win the hearts and minds of Tamils as a separate ethnic group in Sri Lanka with equal historical claims as those of the majority community. S.S.Wijeratne


Questions and answers

Pradeshiya Sabhas Act

Question: I am a resident of Piliyandala and I bought the property I am residing about five months ago. Last week, Some officers from the Pradeshiya Sabha came to our land and started digging a drain. Although we objected, the officer said they received complaints to the effect that the road is flooding due to lack of drains. We are helpless .Please advise as to what course of action we can take?

Answer: Under the Pradeshiya Sabhas Act No 15 of 1987, Pradeshiya Sabhas are empowered to construct drains necessary for the effectual draining of any area within their jurisdiction. However, this can only be done after reasonable notice in writing and with payment of compensation to any damage caused. Nevertheless, you can file a writ application in the High Court challenging this where court will decide as to whether the Pradeshiya sabha has acted within the power.


Nuisance

Question: The branches of my heighbours Jak tree are invading over my land. This is causing a nuisance to me as the leaves fall onto my roof, blocking the gutters and causing leaks in the ceiling. I have asked him to cut the branches but he is not taking any action. Please advise.

Answer: You can inform the Pradeshiya Sabha as they have the power to order any person to cut down any tree if its causing any nuisance. If your neighbour fails to do so, they can take steps to cut the tree and recover expenses from that person.


Death certificate

Question: Please let us know how to obtain an application form to get a death certificate and if the death occurred in a hospital, where should we hand over the application form?

Answer: There is a printed application form for this purpose.

You may obtain the form from the Registrar General's Department website. www.rgd.gov.lk or any of Divisional Secretariat Office in island- wide .

The application number is 63A. The above mentioned application requires a stamp fee of Rs.50. To obtain a copy of a death certificate you have to submit an application through the post to the Divisional Secretariat office where the death was registered.

If the death occurred in a Colombo Hospital or in a recognised private hospital in any area you are kindly requested to send your application to the Divisional Secretariat office where the hospital is situated. If you need further clarification you can visit our Legal Aid head office in Colombo .


Last Will

Question: My father is willing to write a Last Will. Please let me know what is the value of writing a Last Will if my father wants further clarification can you help him ?

Answer: A living person who wishes to state the manner in which his property should be handled and the manner in which such property should be inherited after his death conveys his wishes by means of a document known as a Last Will. The purpose of writing a Last Will.

* It is evidence in writing received to ensure that after your death your property is inherited in the manner anticipated by you.

* You may have had a desire to carry out your obligations by transferring your property and money.

* If you hope to set a part of your property to person outside in addition to your close neighbours or in a meritorious act it could be done in the manner required by writing a Last Will.

In case where a Last Will is not written mentioning the manner in which the property should be divided, problems may arise after your death resulting in delay in distribution. If there is no Last Will written, since there is no record of your wishes the property will be distributed not in the manner you anticipated but according to the prevailing law. In addition the relevant heirs will have to bear heavy expenditure to obtain same.

In your query you have mentioned that your father wants our help . In a case of need you can visit one of our legal aid centers in islandwide


How is property divided under the Common Law?

Question: My husband died in an accident without leaving a Last Will. He has land under his name and we have a child, but his parents say I am not to acquire any land. Could you kindly explain how a deceased's property is divided under the Common Law. An early reply to my question would be greatly appreciated.

Answer: Under the Common Law a deceased's property could be divided in the following manner:-

If the deceased was married 1/2 of the property would be granted to the spouse and the other 1/2 to be equally divided among his children. If they haven't any children 1/2 to the spouse and the other 1/2 to parents of the deceased in equal shares.

If the parents are not alive equal shares to the deceased's brothers and sisters. If only one parent is living 1/2 of 1/2 would be granted to the living parent and other 1/2 of 1/2 would be granted to brothers and sisters of the deceased equally.


Divorce matter

Question: I have decided to divorce my wife. We do not have any children. Can we mutually get the divorce? Please advise us.

Answer: If you are keen to file a divorce action, you must prove one of the following grounds under the General Marriage Ordinance:-

(a) Adultery subsequent to marriage

(b) Malicious desertion

(c) Incurable impotency at the time of such marriage

You can institute a divorce action in the particular jurisdiction where you reside.

Apart from the divorce action you can ask for permanent alimony (compensation), alimony and costs of litigation.


Trafficking

Question: I wanted to find foreign employment because of family problems. Therefore, I found a job agency situated in Maradana and they promised to send me to Kuwait. But when I went there, I found out I was in Saudhi -Arabia. I was subjected to sexual harassment , So I worked there for two months. They did not pay me. Now I am back in Sri Lanka What relief I can get?

Answer: According to your information, It is an offence under the Amendment to the Penal Code. (Section 360 C 1) Trafficking. Section 360c.1 says that

360c (1) Whoever-

a) engages in the act of buying or selling or bartering of any person for money or for any other consideration;

b) for the purpose of promoting, facilitating or inducing the buying or selling or bartering or the placement in adoption, of any person for money or for any other consideration.

i) arranges for, or assists, a child to travel to a foreign country without the consent of his parent or lawful guardian; or

ii) obtains an affidavit of consent from a pregnant woman for money or for any other consideration, for the adoption of the unborn child of such woman; or

iii) recruits women or couples to bear children; or

iv) being a person concerned with the registration of births, knowingly permits the falsification of any birth record or register ;or

v) engages In procuring children from hospitals, shelters for women, clinics, nurseries, day Care centres, or other child Care institutions or procures a child of adoption from any such institution or centre, by intimidation of the mother or; any other person; or

vi) impersonates the mother or assists in such impersonation.

Commits the offence of trafficking and shall on conviction be punished with imprisonment of either description for a term.

Not less than two years and not exceeding twenty years and may also be punished with fine and where such offence is committed in respect of a child, be punished with. Imprisonment of either description for a term not less than five years and not exceeding twenty years and may also be punished with fine.

Please make a complaint to the Childrens & Women's Bureau. If you have a copy of the service agreement you can challenge the agreement in the District Court & can get compensation.


Rape

Question: Can you please tell me if it is possible for rape to occur within a marriage, if the wife does not give her consent?

Answer: Under the Penal Code, it is an offence defined as rape. According to Section 363, defined as follows:

A man is said to commit "rape" who has sexual intercourse with a woman under circumstances falling under any of the following descriptions:-

a) Without her consent even where such woman is his wife and she is judicially separated from the man;

b) With her consent, while she was in lawful I or unlawful detention or when her consent has been obtained, by use of force or intimidation, or by threat of detention or by putting herein fear of death or hurt.

c) With her consent when her consent has been obtained at a time when she was of unsound mind or was in a state of Intoxication induced by alcohol or drugs, administered to her by the man or by some other person;

d) With her consent when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is, or believed herself to be, lawfully married;

e) With or without her consent when she is under sixteen years of age, unless the woman is his wife who is over twelve years of age and is not judicially separated from the man.

Explanation-

1) Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape;

2) Evidence of resistance such as physical Injuries to the body is not essential to prove that sexual intercourse took place without consent.


Abortion

Question: Please let me know whether abortion is legalised in Sri Lanka?

Answer: No, abortion is not legal in Sri Lanka. Under the Penal Code it is a criminal offence. The Penal Code provisions are defined as the causing of miscarriage, or injuries to unborn children, as follows:

Sections

303 Whoever voluntarily causes a woman with child to miscarry shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished extend to three years, or with fine, or with both; and if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be liable to fine.

304 Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not. Shall be punished with imprisonment of either description for a term which may extend to twenty years, and shall also be liable to fine.

305 Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to twenty years, and shall also be liable to fine.


Pension life certificate

Question: My nephew is a Sri Lankan Government Pensioner. He is presently residing with his family in India to educate his child.

Every Pensioner is required to sign a life certificate at the beginning of the year and send it to the Divisional Secretary.

The format of the life certificate varies. His life certificate requires attestation by the Gramasevaka Niladhari. I am also a Pensioner. My life certificate provides for Justice of Peace or Attorney at Law to attest. He was able to get his certificate attested by Gramasevaka Niladhari in 2008. The Gramasevaka Niladhari is not prepared to attest it this year. He will not get his pension this year without the life certificate attested by the Gramasevaka Niladhari.

Can You Please him @ To get his Pension .

Answer: We discussed your matter with the Pension Director, Department of Pensions. According to him your pension has stopped due to not informing the department and leaving the country. It is advisable to contact him via letter, or you can come to us with the request letter or email and we will help you to settle the matter .

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Migrant matter

Question: I want to find a Registered agent. I live in a village so a lot of sub Agents come to us and introduce foreign employment. Please give us guidelines to find whether they are registered Agents or sub Agents.

Answer: If you want to go abroad as a housemaid there are registered job agents listed in the Sri Lankan Foreign Employment Bureau. Do not get foreign employment through the sub Agents, because they are not legal under Sri Lanka Foreign Employment Act.

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