LEGAL AID COMMISSION

Post-conflict legal recovery:

Sri Lankan experience

N. Selvakkumaran Dean, Faculty of Law, University of Colombo

Part I

Sri Lanka, which was known as Ceylon for a long time until 1972, emerged from a bloody civil war in May 2009 after well over 2 1/2 decades, with sporadic periods of ceasefire between the warring parties. This beautiful Island in the Indian Ocean which was once well-known for her splendour and hospitability was referred to as the Pearl of Indian Ocean. Though small in size, she is the home for Sinhalese, Tamils, Muslims, Malays, Burghers and others. Her population is a little over 20.5 million people, with Sinhalese at 74%, Sri Lankan Tamils at 12.7%, Indian Tamils at 5.5%, Sri Lankan Moor at 7% and others such as Malays, Burghers etc. forming the balance. The main languages spoken in the country are the Sinhala Language, Tamil Language and English Language. While the Sinhalese live predominantly in all the seven Provinces in the country, the Tamils and Muslims live predominantly in the other two Provinces, viz., the Northern and Eastern Provinces. A sizeable number of Tamils of recent Indian origin live in the hill country areas in the Central and Uva Provinces.

The country came under Portuguese domination in the 16th century, Dutch domination in the 17th century and British domination from the early 19th century. It gained independence from the British in 1948, with the British monarch as its constitutional head. Sri Lanka became a Republic in May 1972 with the enactment of the 1st Republican Constitution which provided for a Westminster model Parliamentary Cabinet System of Government. In 1978, Sri Lanka enacted the second Republican Constitution paving the way for an Executive Presidential System of Government retaining some features of the Parliamentary Cabinet System as well.

Since independence, the relationship between the two major communities has its ups and downs due to a variety of factors or perceived factors. These related to issues of citizenship, language, land settlement, public service employment, admission to university education, lack of balanced regional development, governmental power sharing, etc. Although the representatives of the minority Tamil and Muslim communities tried to use the elected representative bodies for airing their grievances or perceived grievances, they felt that they did not get the required responses from the successive governments.

By the mid-1970s, the Tamil youth started to engage in militant activities against the elected government and its officers. This militancy gained momentum with the support and training extended to militant groups by foreign elements and it became a force to reckon with by the 1980s.

The Liberation Tigers of Tamil Eelam (LTTE), which later on became a ruthless terrorist outfit, continued to engage in violent actions against the government even though the Indo-Sri Lanka Accord entered in 1987 paved the way for devolution of legislative and executive powers to the Provinces in the country through the 13th Amendment to the Constitution.

Almost all other militant groups gave up their violent activities against the government and tried to join the democratic mainstream by contesting elections. However, the LTTE continued to engage in violence and terror as a means to achieve its leader's purported aim of establishing a separate State of Tamil Eelam in the Northern and Eastern Provinces of the country.

Although there were instances where attempts were made by internal and external personalities and governments to mediate a resolution to the violent conflict, these attempts were short-lived and violence returned with new vigour after each ceasefire. With the Norway brokered Ceasefire Agreement of 2002, the LTTE was recognized to have 'control' over, and administer, specified areas in the Northern and Eastern Provinces.

The government of Sri Lanka turned a blind eye to the goings-on in those areas which were 'ruled' by the LTTE's diktats. They used violence and terror against those who opposed their 'rule' and they exercised political and administrative hegemony in those areas.

The 'moderate' Tamil political parties were helpless and were compelled to toe the commands of the LTTE, so much so that the LTTE claimed that it was the sole representative of the Tamils, though they never contested any election in their name. The Ceasefire Agreement of 2002 became a dead letter after April 2004, though it was tried to be 'revived' after a new Government was elected in November 2005.

The attempts failed and the LTTE's military campaign and acts of terror continued. The government went ahead engaging the LTTE militarily and successfully defeated the LTTE in the Eastern Province in 2007, thanks to the split the LTTE suffered in 2006 between the cadres in the North and the East. Thereafter the Government Security Forces along with the Police Force were successful in defeating the LTTE completely in May 2009 in the Northern Province as well.

Consequences of civil war

There were many evil consequences of the prolonged civil war that prevailed in the country. The country was compelled to be under a State of emergency for a prolonged period of time; it is still under the emergency rule, though some of the harshest and obnoxious regulations have been rescinded.

The country has been under emergency rule since 1970, though there had been a few brief periods, not exceeding five years in toto, when emergency was lifted and it was ruled under the normal law of the land.

The rule of law got debilitated in some parts of the country, if not in the entire Island. The civil rule in some parts of the country suffered very badly and the law and order became problematic in those areas. The functioning of normal offices and provision of services to the public by these offices got disrupted very badly. Non-civilian officers had to take over or get involved in the administration of civilian affairs in those areas.

Human lives and limbs have been lost and maimed; buildings and assets have been lost and damaged; families, livelihoods, industries, etc. have been lost or have suffered losses.

Physical and psychological sufferings are immense and immeasurable. Families got separated; people went off shores - some as migrants other as refugees; large numbers got internally displaced; the joy of childhood, exuberance of youthfulness and values of education got lost or suffered.

Environment and natural habitat were at the receiving end. Violations of human rights and threats to the security of people occurred. The civil war has left a telling scar on the relationship between the majority community and the minority communities; it has driven a definitive wedge between these communities. It has left an enormous task, with the People and Government of Sri Lanka, of re-building mutual trust, generating a sense of peaceful co-existence and harmony amongst these communities.

These apart, the prosecution of military campaign against the ferocious LTTE has resulted in a large number of civilians, numbering in lakhs, having been evacuated from the areas of fire-zones to safer areas; these civilians who were displaced from their homes and being housed in welfare centres and camps have to be looked after by the government as they lacked facilities to fend for themselves.

They were so weak, tired and vulnerable that they needed to be helped to re-start their lives. A majority of them has lost everything worthwhile that they owned and they have to be given succor to continue in their life.

This apart, a large number of combatants - active, non-active, fringe supporters - who were captured or who surrendered have to be treated lawfully and either tried for offences or reintegrated into society after giving them due training and rehabilitation.

To be continued

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Urgent Bills

Question: What is meant by Urgent Bills in Parliament?

Windya Samarawikrama, Waga

Answer: In the national interest,the Cabinet of Ministers may want to pass a certain Bill urgently. Then the Cabinet of Ministers certifies the Bill as being 'urgent in the national interest' and it can then be presented to Parliament as soon as it is gazetted. The period of one week set out in article (78) of the constitution will not apply to this category of Bills. These Bills will be referred to the Supreme Court by the President unlike the other Bills (Article 121 of the Constitution will not apply) and the Supreme Court is required to make its determination within twenty four hours, or within three days at the latest.

ISBN/ISSN/ISMN

Question: I decide to publish a book which was written by me. I want to get the ISBN number for my book. Please let me know the procedure?

Aruna Wikramasinghe, Mahawa

Answer: ISBN is the International Standard Book Number (ISBN) is a 10-digit number that uniquely identifies books and book-like products published internationally.

The National Library and Documentation Services Board is the national agency for the issue of ISBN, ISSN and ISMN numbers in Sri Lanka. These numbers help the publishers and the authors to have an international recognition.

If you want to get the ISBN number for your book you have to get the application form from the following website or get the application form from the National Library and Documentation Services Board which is situated at the National Library.

Instructions for filling application

1. Publisher - Publisher is defined as a person, company partnership, association, group or body of any kind what so ever issuing and publishing a book. Publisher is the Person/Institution who is financing the production of the item.

2. Title - Title of the book and if there is a sub title please state.

3. Edition - Which edition of the book? (1st edition or 2nd edition etc.).

4. Print - Which print (1st or 2nd print etc.).

5. Translation - Please state the Original author and original title.

6. Volume/Part - Which volume/part of the book (1st volume/part, 2nd volume/part etc.).

7. Date of publication - Month and the year of publishing (approximately).

8. Price - Price (approximately)

* Subject - Subject area of the publication

Service Charge for ISBN, ISSN and ISMN

A service charge of Rs. 50 per number will be levied.

Payment systems

Cash Payments -

Cash payments may be made to the Publication and Book Development Division at the NLDSB. The application should be submitted along with the receipt.

Cheques or Money Orders -

All cheques should be drawn in favour of the 'Chairman, National Library and Documentation Services Board' (Paying Post Office - Independence Square). The application should be submitted along with the cheque or money order.

Deposit to the NLDSB Account -

Payments may be made by depositing the amount payable at any branch of the bank to the credit of the Accounts No. 167-1-001-6-3170315 at People's Bank, Town Hall Branch, Colombo. The application should be submitted along with the Bank's acknowledgment slip. If you need further detail you can contact:

National Library and Documentation Services Board,

No. 14, Independence Avenue,

Colombo 7,

Sri Lanka.

Telephone: 094 11 2698847, 2685197

Fax: 094 11 2685201

email: [email protected]

Death Registration of foreign nationals

Question: My friend who is Dutch Nationalist came to Sri Lanka in 2004. He died in a bomb blast in Sri Lanka. His relations want to get his Death Certificate. They are Dutch people. Can they apply for Death Certificate in Sri Lanka. Can I apply for Death Certificate on behalf of him.

Yoga, Wadduwa

Answer: You can apply for Death Certificate on behalf of your friend. But you have to prove it with necessary documents. Section 11 of the Registration of Death (Temporary Provisions) Act No. 19 of 2010 specifies the procedure for registration of death of foreign Nationals. Section 11 says that - "Where there is evidence to show that a national of another state had been in Sri Lanka and temporarily resident within an area declared as a National Disaster Area in terms of section 9, and that it is apparent that such had died as a result of the natural disaster or calamity in question, then any person having knowledge of these facts may apply for the issue of a Certificate of Death in respect of such person. Every such application shall be forwarded directly to the Registrar-General who shall forthwith proceed to register such death and issue in respect of such person a certificate of death.

If you want to know further Information you can contact Registrar- General at the Registrar-General Department at Battaramulla.

Mediation Board Act, No. 72 of 1988

Question: Is there any recent Amendment introduced to the Mediation Board Act, No. 72 of 1988?

Halwita, Kandy

Answer: Yes, there is a recent Amendment to the Mediation Board Act, No. 72 of 1988. That amendment is called Mediation Boards (Amendment) Act, No. 4 of 2011.

Section 7 of the Mediation Boards Act, No. 72 of 1988 has been amended in subsection (1) of that section as follows:

(1) By the substitution in paragraph (a) of that Subsection for the words "twenty five thousand rupees in value" of the words "two hundred and fifty thousand rupees" in value

n by the substitution in paragraph (C) of that subsection for the words "second schedule to this act" of the words "second schedule to this act or: and

n by the insertion immediately after paragraph (c) of that subsection, of the following paragraph "(d) the offence under section 367 or 368 B of the Penal Code is committed by a person below the age of eighteen years, in respect of any property, the value of which does not exceed rupees five thousand."

Registration of elders' home

Question: We want to open an Elders' home in our area. Where do we have to register it? Please help us in this regard?

Karunarathna, Matara

Answer: According to Section 16 of the Protection of the Rights of Elders (Amendment) Act, No 5 of 2011, you have to register your home under the Elders Council. If not it is an offence under this Act. Section 16 of the Act says that -

"16(1) Every person or organization whether voluntary or otherwise, engaged in the establishment and maintenance of any institution intended for providing residential care for Elders, shall if such institution has more than five elders residing therein, register such institution in accordance with the provision of this Act

n Any person or organization who fails to comply with the provision of subsection (1) shall be guilty of an offence under this Act"

Therefore it is advicable to register it under this Act with the said Council. The address is as follows:

Council of Elders

LHP Building,

Nawala Road, Nugegoda.

Hansard

Question: How are Parliament proceedings recorded?

P Jayasekara, Welioya

Answer: The proceedings of Parliament is being recorded in the Hansard. The Hansard is the official printed verbatim record of Parliamentary proceedings including messages from the President, the Speaker's announcements, questions et cetera. The debates of members of Parliament are recorded in the Hansard in the language in which they are made. The verbatim reports of the proceedings of the house are a rich source of contemporary parliamentary history. They provide an authentic and detailed picture of the business transacted by parliament as against the newspaper reports which give only a gist of it. Besides serving as a permanent record of the proceedings of the house, the verbatim reports are later printed and are available for sale to the general public at the Government Publications Bureau.

Elders maintenance

Question: I have two children. They are both working in the private sector. They are neglecting me. I decide to complain to the Elders Board. Can the Elders Board request the employer of my children to pay the maintenance. Please reply.

Ariyawathi Fernando, Maharagama

Answer: Yes, the Board can request from the employer to deduct the maintenance from their salary.

Under Section 28 of the Protection of the Rights of Elders (Amendment) Act, No. 5 of 2011, the board may in awarding maintenance order the respondent to (a) deposit with such Bank as may be specified such minimum sum as the Board may determine: or

(b) purchase an annuity with an insurer of the value of such minimum sum.

Where the respondent fails to comply with the provisions of subsection (2), the Board may request the employer of the respondent to deduct from the salary, the sum due to be paid by the respondent to the applicant and remit such sum to the credit of the applicant."

Private Bills

Question: What is meant by Private Member Bills in Parliament?

Chaturanga, Galle

Answer: The Bills are presented in Parliament by a Member of Parliament and Parliament authorizes its publication in the Gazette. It is then sent to the Legal Draftsman's Department for revision before taken up for debate by Parliament. It then has to go through the procedure set out in Article 79 of the Constitution as in the case of all other public and General Acts.

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QUESTIONS AND ANSWERS

Offences relating to Death Certificates

Question: My Uncle's wife has already got the death certificate of my uncle. She produced it to the bank to get the money of my uncle. They are separated for nearly 10 years. When he came to the village he got to know that his wife had already got the death certificate of him submitting false information to relavent authorities. Can we file a case against the aunty? Is it an offence under the law?

Answer: Yes. It is an offence under the Registration of Deaths (Temporary Provisions) Act No. 19 of 2010. Section 15 of this Act states that

"Any person who (a) knowingly, makes a false statement in an application made by him under this Act, or furnishes false information under this Act:,

(b) being aware that a person whose death has been registered in pursuance of an application made under this Act, is alive, fails to furnish such information to the Registrar-General: or

* Dishonestly or fradulently uses a certificate of death issued under the Births and Deaths Registration Act knowing or having reason to believe that the person referred to in such certificates is alive shall be guilty of an offence under this act, and shall upon conviction after the trial by the High Court be sentenced to a term of imprisonment of not exceeding five years."

Therefore you can file a case in the High Court against her. If you need any help you can contact the Legal Aid Commission Centre in your area.

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