Legal Aid Commission
Compiled by Kalani A.Medagoda, AAL
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
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
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
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
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
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.
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
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.
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 .
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.
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
(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.
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.
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
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
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.
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
Question: Please let me know whether abortion is legalised in
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,
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 .
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.