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Government Gazette

Legal aid commission

Compiled by Kalani A. Medagoda, A.A.L.

Legal protection of IDPS

Influx of over 115,000 Internally Displaced Persons to the Vavuniya district should receive the most urgent attention of the authorities and the concerned humanitarian agencies.

From the media reports it is evident that ordinary citizens have rallied to collect material assistance to help the temporarily displaced fellow citizens who are languishing in temporary shelters with their children and elders. According to UN estimates, the majority of vulnerable displaced persons whether due to natural or man made disasters are women, elders and children.

The Sri Lankan situation is no exception whether people were involuntarily ousted from their former places of living due to the Tsunami or armed conflicts. Since 1983 Sri Lanka witnessed waves of displaced persons in the north and east and in other coastal areas affected by the Tsunami disaster.

Unlike in the case of refugees who seek asylum in other countries who are protected by the international law and the refugee Agency, United Nations High Commissioner for Refugees (UNHCR), IDPs are the full responsibility of the national governments. Sri Lankan State is fully responsible for her citizens irrespective of the fact whether they are temporarily displaced or not.

The national laws from the fundamental rights chapter of the Constitution to all other laws which protect the rights of ordinary citizens equally protect the rights of the displaced as well.

The displaced Sri Lankans cannot be discriminated merely because they have lost protection of their homes and are living in transit accommodation.

The Legal Aid Commission has a separate IDP Desk, which will initiate legal action to protect the legal rights of IDPs like any other destitute Sri Lankan.

Sri Lanka does not have a separate law protecting Internally Displaced persons. After the tsunami, a special law was enacted to protect and restore the rights of the tsunami affected persons, children and property.

Tsunami related disputes were taken out of protracted court system and placed before Special Mediation Boards for amicable and quick resolution. Of the 12 or so countries devastated by the 2004 tsunami, Sri Lanka was the only country which enacted special legislation to protect tsunami victims.

The authorities need to examine the feasibility of enacting special legislation to provide legal guidelines to deal with the myriad of issues relating to human security of the displaced, mostly elders, women and children as in an emergency situation.

Return of the displaced in safety to their original homes at the earliest possible time should be the focus of such special legislation. Eventhough, the IDP situation is a national emergency with responsibility solely vested with the Sri Lankan government, the sheer magnitude of the situation calls for international cooperation from those who have genuine and transparent humanitarian programs.

The United Nations Guiding Principles on IDPs provide for such international cooperation to assist the national government. During the Tsunami the world rallied round to help Sri Lanka and we coped with the disaster more effectively than similar disasters in developed countries. The lessons learnt could be replicated.

International assistance should not be a Trojan horse to re-ignite political terrorism in the island. Sri Lankans have sacrificed the full 30 years due to the fratricidal conflict initiated by a terrorist group who have been proscribed by most of the civilized countries in the world.

From the reports emanating from Canada, United Kingdom, Australia, France, Southern India and the Scandinavian countries, nearly a million Tamil Sri Lankan asylum seekers are bringing pressure on the local politicians in the host countries to give a second chance to a conflict revival.

Humanitarian aid should not be the vehicle to re-introduce conflict and prevent a peaceful solution to Sri Lanka's ethnic issues.

S. S. Wijeratne


Emergency Legal Aid to IDPs

The Vavuniya Legal Aid Centre headed by Director S.Sittampalam, Senior Attorney-at-Law will lead a team of Legal Aid lawyers who will launch a special access to justice programs for IDPs. Head of LAC IDP Desk, Kirija Nimalatheva, AAL who has been internationally trained in IDP related to legal issues will coordinate the program and legal aid staff attorney in Vavunia, Mr.Sudharsan, AAL, Jaffna Legal Aid Director, Senior Attorney K.Kesavan and and Legal Aid Coordinator Mannar will assist the IDPs in legal matters in their respective areas.


Head of the Elders Desk Attorney-at-Law Piumi Kumari addressing the gathering at the Elders Program in Beruwala recently.

Legal assistance to IDPs in the North, North Central and Eastern Provinces was originally launched in 2002 by the Bar Association of Sri Lanka with the support from UNHCR but due to funding constraints and the increased resettlements of IDPs, the special legal aid program was discontinued few years later. However, LAC Centers continued to provide legal assistance to all deserving persons who sought assistance in the courts. The mobile legal aid program in which the lawyers visited the IDP Welfare Centers periodically as the destitute persons could not even afford to travel to the courts was discontinued due to financial constraints.

The new emergency program of the LAC would be supported by the Access to Justice Program of the UNDP administrated by the Ministry of Constitutional Affairs and the Ministry of Human Rights and Disaster Management. The guiding legal framework for legal aid to IDPs would be the UN Guiding Principles on IDP popularly known as the Deng Principles. These guidelines have been adopted by the Sri Lankan IDP authorities in the returnee and rehabilitation work of the IDPs during the past few years.

With the enactment of the ICCPR Act No. 56 of 2007, the High Courts are vested with authority to give just and equitable orders to rectify anomalies in the administration including IDP benefits and provide all persons including IDPs with documentation such as identity cards, birth and marriage certificates which establish them as citizens of this country. Additionally, for the first time in Sri Lanka, ordinary persons would receive legal assistance when charged with offences or detained.

LAC centres in the Northern and Eastern Provinces would provide legal assistance in settling land and housing disputes when the IDPs eventually return to their original places of residence to resume their normal lives.

************

[ Questions and Answers]

Consumer Affairs Authority

Question: Please let me know how the Consumer Affairs Authority entertains customer complaints and how do they inquire into the said complaints. I await your kind reply.

Answer: The Consumer Affairs Authority (CAA) receives complaints on a wide range of products and services. The objective of providing this service is to assist the aggrieved consumers to settle their problems in purchasing goods or obtaining services in the market place. The CAA can inquire into complaints on goods as well as services.

CAA is empowered to inquire into complaints regarding the production, manufacture, supply, storage, transportation or sale of any goods and to the supply of any services which does not conform to the standards and specifications determined by the Authority.

More over Authority can inquire into complaints regarding the manufacture or sale of any goods which does not confirm the warranty or guarantee given by implication. Consumer Affairs Authority carries out investigations based either upon its own motion or on any complaint/requests made by any consumer or organization of consumers. Individual consumer or any organization of consumers can make complaints or can provide information on erroneous trade practices. Many of the matters under dispute have been settled either through direct written communication or through discussion and verbal negotiation with the relevant parties to the dispute.

Any complaint to this effect may be sent to:

Director General,
Consumer Affairs Authority,
No. 27, Vauxhall Street,
Colombo 2.


Change of father's name in child's Birth Certificate

Question: I had an affair with a university student and subsequently gave birth to a child. After the child's birth he went away and was not living with me. However, my child's Birth Certificate indicates his surname as father. We did not have any legal marriage. Later I married another person who cares this child like his father. My husband now wants to include his name as child's father. Is this possible? Please advice.

Answer: Yes. Your husband can include his name as the child's father. However, to do this, you have to file an adoption case in the District Court. You need to explain the current situation and can include your husband's name as the child's father. Thereafter your child will be issued a new Birth Certificate indicating the name required.


Insertion of name in Birth Certificate

Question: In case a name has not been inserted in the Birth Certificate, can that person include his name in the Birth Certificate. Please advice.

Answer: The owner of the Birth Certificate himself/herself or his / her parents may alter the name in the Birth Certificate, if necessary. In case a name has not been specified in the Birth Certificate, one may be inserted. One of the following persons should produce a declaration to the Divisional Secretariat to which, the place where the birth has been registered belongs, for that purpose.

a. If the certificate of birth relates to a person under the age 21 yrs, a parent or the guardian of that person.

b. If it relates to a person who is over twenty on years of age, that person himself / herself

A certified copy of the certificate of birth of the person concerned should be essentially attached to the declaration and the application should be supported with the following documents as could as possible.

1. Certificate of Baptism (If any) 2. A certified copy of the school admission register or the school leaving certificate.

3. A list of children born to the parents of the person related to the certificate of birth.

4. Declarations made in state affairs, if any.

5. Newspaper notices.

6. Pass books of Savings Accounts.

7. Identity card, passport, driving license.

8. Other important documents containing the name and date of birth of the person concerned and names of his/her parents.

Declaration Forms in which the application should be made :-

Insertion of a name:

Below 21 years of age - Registration B7

Over 21 years of age - Registration B8

Alteration of a name:

Below 21 years of age - Registration B9

Over 21 yeas of age - Registration B 10

Stamps for declarations:

Within two years from the registration of the birth - Rs. 1.00.

After lapse of over two years from the registration of the birth - Rs. 5.00.

If you need any assistance, you can visit the Legal Aid Commission Head Office at No. 129, Hulftsdorp Street, High Court Complex, Colombo 12.


Marriage problem

Question: I got married 15 years ago and have three children. My husband is now harassing and beating me very often. Since I could not bear all such harassment and assaults from him, I left home and lodged a complaint with the police. Thereafter, he harassed and beat me again when I stayed at my sister's place. Wherever I go he takes steps to harass me. My children are still with him. I am unable to live with him any longer at his home or at any other place. I am in a desperate position now. Please help me.

Answer: Under the Domestic Violence Act No 34 of 2005, you can get a protection order or an interim order against your husband.

Under this Act, your children can also get a protection order. According to Section 11 of the Prevention of the Domestic Violence Act No. 34 of 2005, you can get a protection order preventing all such harassment from your husband while you are living in a temporary place. Under the Section 11 (1), the court can order the following.

The Court may, by means of an Interim Order or Protection Order prohibit the respondent from:

(a) entering a residence or any specified part thereof shared by the aggrieved person and the respondent;

(b) entering the aggrieved person's -

(i) residence;

(ii) place of employment;

(iii) school;

(c) entering any shelter in which the aggrieved person may be temporarily accommodated;

(d) Preventing the aggrieved person who ordinarily lives or has lived in a shared residence from entering remaining in the shared residence or a specified part of the shared residence;

(e) Occupying the shared residence;

(f) Having contact with any child of the aggrieved person or having contact with such child other than on the satisfaction of such conditions as it may consider appropriate, where the Court is satisfied that it is in the best interest of such child;

(g) Preventing the aggrieved person from using or having access to shared resources;

(h) Contacting or attempting to establish contact with the aggrieved person in any manner whatsoever;

(i) Committing acts of violence against any other person, whether it be a relative, friend, social worker or medical officer, who may be assisting the aggrieved person;

(j) Following the aggrieved person around as to cause a nuisance;

(k) Engaging in such other conduct as in the opinion of the Court will be detrimental to the safety, health or well-being of the aggrieved person or other person who may require protection from the respondent as the Court may specify in the Protection Order;

(l) Selling, transferring, alienating or encumbering the matrimonial home so as to place the aggrieved person in a destitute position.

If you need to get the custody of the child you have to file a custody case at the District Court. If you need any help you can visit any one of our Legal Aid Centers of your residence near by.


Local inspection

Question: We had a case in the Primary Court under the 66 Application regarding a dispute relating to our boundary line. Under the Primary Courts Procedure can the Judge inspect the place? Please explain.

M. Silva, Battaramulla.

Answer: There are no specific provisions in the Primary Courts Procedure Act, as regards to local inspections. But it often happens that when there is a dispute regarding a right other than possession, for instance a boundary dispute or a right in the nature of a servitude, the parties to the dispute invite court to visit the scene of the dispute and given an order/determination on the matter in such a situation the court is required to enter the terms of settlement, and the parties to sign the record to abide by the said settlement. A settlement of this nature will bind the parties and an order given under such a situation will be considered as a consent order. Section 428 of the Civil Procedure Code provides for a local inspection where applicable. Section 428 enacts that "in any action or proceeding in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute... a court may issue a commission..."

 

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