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Friday, 29 July 2011

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Steps towards legal recovery -Part II

Continued from last week

It is not easy to bring about normalcy within a short period of time to the lives of people who have suffered and endured the horrors of civil war and breakdown of public order for a number of years. The task ahead of the government of Sri Lanka in bringing back normalcy in the country and facilitating and promoting goodwill, harmony, mutual coexistence and peace amongst the communities is a heavy and onerous one, though it has to be undertaken with a high degree of sensitivity and understanding striking a balance between varying competing interests.

Achieving a durable peace amongst the people of the country is the prime objective of a post conflict government, while protecting its territorial integrity, national security and people’s sovereignty and promoting the rule of law and human rights in the country. These warrant speedy actions in many fronts: legal, administrative, political, developmental spheres.

One of the urgent needs is to facilitate and permit the Internally Displaced Persons to get back to their own homes if their homes are in a habitable state or make effective arrangements to settle them in suitable alternate dwellings. There have been many impediments in the displaced persons getting back to their own homes, such as that the homes are in areas where land mines have been heavily buried, or that the homes are in high security zones and access to them is prevented, or that they are being occupied by other displaced people or that the homes are in ruins.

To deal with this enormous challenge, the Government of Sri Lanka decided to enact a special law to establish a Resettlement Authority in the country to formulate national policy and to plan, implement, monitor and co-ordinate the resettlement of the internally displaced persons and refugees and to deal with issues connected to internal displacement in the country.

The Resettlement Authority Act 1 enacted in 2007 paved the way for the establishment of the Resettlement Authority in April 2007, the major functions of which are as follows -

* Formulate Resettlement Policy.

* Co-ordinate efforts of government and donors in order to end displacement of persons.

* Formulate and implement specific programmes and projects for resettlement and relocation of the internally displaced and refugees in a safe and dignified manner.

* To assist IDPs and refugees to obtain lost documents from government departments

* To assist in providing infrastructure facilities, education and health

* To implement resettlement programmes including housing schemes.

* To assist in the mobilization of both local and foreign financial resources to implement the planned programmes.

* To facilitate in solving problems relating to ownership and possession rights of movable and immovable assets.

* To forge better understanding between the internally displaced and host communities.

* To facilitate the restoration of basic human rights including cultural rights of the internally displaced.

* To receive representations on the needs of the internally displaced, to make representations to mandated agencies and find solutions.

* To mobilize the internally displaced to initiate and implement partnerships for recovery and development in accordance with the individual or community needs.

* To promote livelihood activities.

* To provide reasonable access to information relating to their recovery.

* To ensure conducive environment for resettlement by clearing land mines and debris and repairing damaged infrastructure.

The Secretary to the Ministry of Resettlement has been quoted as saying that all the war-driven Internally Displaced Persons would be resettled or returned by the end of 2011 and that the delay in resettling has been due to the delay in demining of the proposed areas of return. According to him the biggest camp, viz., Menik Farm, housing the largest number of internally displaced, could be closed down by the end of 2011. However, some have questioned the nature of return and durability of resettlement of these internally displaced.

Although the functions and powers of the Resettlement Authority as laid down in the Act are wide enough in scope for helping in rebuilding and reconstructing the Northern and Eastern Provinces which have been very badly affected by the prolonged violent conflict, as well as providing the much needed assistance to those affected, displaced and rendered homeless to enable them to recommence their lives with dignity, the activities of Authority do not live upto its expectations. Bureaucratic bottlenecks and financial constraints must be sorted out to enable this body to function in an effective and speedy manner so that the affected people could get over their travails and tribulations.

The government of Sri Lanka commenced a programme called ‘Eastern Revival’ after the liberation of the Eastern Province from the control of the LTTE in July 2007. Similarly another programme called ‘Northern Spring’ targeting the Northern Province has been commenced by the government in 2009 after the defeat of the LTTE. These programmes are designed to develop those areas in all critical sectors including resettlement of internally displaced. These programmes are fast-tracked to ensure that the end of war brings peace and prosperity to the affected people in the North and East.

Apart from the issue of resettlement, reconstruction and rehabilitation, there are many other issues which seriously affect the people who were caught in the vicious war. Many of them have lost their valuable documents such as birth certificates, marriage certificates, educational and professional certificates, insurance certificates, share certificates & debentures, bank deposit certificates, pass-books, cheque books, credit & debit cards, passports, driving licences, title deeds, survey plans, land permits, agreements, death certificates of their loved ones, other notarial instruments etc. Statutory provisions or administrative procedures must be devised to facilitate the obtaining of these instruments with ease and speed. The process of obtaining alternative instruments or certified copies of these instruments must be simplified so that the affected people will not face further hardships due to lack of these documentation.


Colombo University Law Faculty Dean K. Selvakkumaran addressing the audience of the colloquium on ‘Post-Conflict Legal Recovery and Equal Access to Justice’ organized recently by the Legal Aid Commission (LAC) at the Hector Kobbekaduwa Agrarian Research and Training Institute conference hall. LAC Commissioner Manohara de Silva PC and LAC Secretary Lilanthi de Silva were also present. Picture by W. Chandradasa

In this respect there is no doubt that one has to be cautious, that the mechanisms devised should not be a vehicle for unscrupulous elements to abuse them for their benefit at the expense of true owners of these instruments. At the same time the devices should not be so stringent to make them not serve the purposes for which they have been set up.

What is needed is to strike a balance between these two competing concerns and come up with some mechanisms which will serve the affected people well while safeguarding the rights and interests of true owners.

One other area where people look for legal solutions relates to the loss or purported loss of ownership of their immovable property due to the prevailing law relating to prescription. There are many people who had to leave their land and premises due to threats and violence leveled against their staying in their own properties.

They were compelled to keep away from their own properties for well over ten years, which is the period of prescription for one to stake ownership to an immovable property by prescription.

These people could not do anything but hope that the government would take suitable legislative and/or administrative steps to ensure that their ownership of land will not be lost due to factors which were exceptional and over which not only they but also the law enforcement authorities could not exercise any control. There is an urgent need to address this issue. Because the law relating to prescription may be reasonable in normal circumstances; but to apply this to a situation which is abnormal and arising out of emergency will be unreasonable and inequitable.

Similarly, there are bound to be claims and counter-claims about ownership of immovable properties, about boundaries of lands and about interests in land and immovable properties. The courts of law have not been functioning in a regular manner and duly in the past during the troubled times. It is also a fact that it takes an unreasonably long time to get court proceedings completed in original courts and if these issues are to be brought before the ordinary courts of law and given the adversarial nature of proceedings adopted by these courts, it will take very long years to sort out these issues which might have arisen sometimes back but been dormant for a long period of time.

What is needed is to set up mediation processes to help find amicable solutions or settlements to these issues without much expense and delay.

In this respect it is desirable that the government takes steps to invoke the provisions of the Mediation (Special Categories of Disputes) Act4 of 2003 and make it possible for people to refer these issues to Special Mediation Boards in order to sort out and settle their disputes. If necessary, the government can bring in some amendments to the Act to make it more suitable to emerging issues.

Yet another issue which flaws from the conclusion of civil war in May 2009 relates to the handling of those combatants who surrendered or were captured at the end of the fighting. The government has to deal with them legally and in accordance with the established principles of international humanitarian law. The government has either to bring them before courts of law and require them to face the full force of the law or rehabilitate them so that they could be re-integrated into society. In the latter case, they have to be given livelihood training in addition to reformative and rehabilitative training.

Seeds of conflict get planted or do arise in the minds of people and it is the minds which should get changed to promote peace. Legal or constitutional provisions will not themselves create peace in the minds of people. It is the human relations and trust and confidence which will light up the hearts to promote peace. One of the modalities to overcome heavy hearts and hurt feelings is to promote sincere discussion and truth telling without any fear of prosecution or persecution by the parties to the conflict or by those who have suffered in the course of the conflict.

The government of Sri Lanka has set up a Commission of Inquiry, namely Lessons Learnt and Reconciliation Commission, to promote the above exercise. It will give an opportunity for people to unburden their sufferings and feelings and seek the truth. In addition it provides the much needed opportunity to learn lessons from the past so that they could serve the government and people of this country from committing the same mistakes again.

To be continued`


ICLP awards ceremony

The 15th anniversary of the ICLP arbitration centre and the ICLP awards ceremony 2011 was held on July 26, 2011 at the BCIS Auditorium.

The Chief Guest was K.Kanag Isvaran P.C and the Guests of Honour were Justices Saleem Marsoof PC and Justice P.A. Ratnayake.

The Diplomas and Certificates were awarded to the students of the Diploma in Commercial Arbitration and ICLP-CCC Certificate Course on Shipping Law and Practice.

President Counsel K.Kang Isvaran, an eminent commercial lawyer and the draftsman of the Sri Lankan Arbitration Act made the keynote address at this fifteenth anniversary celebrations.

The best students of both programmes received the awards and certificates from the Chief Guest K.Kanag Isvaran P.C.

Attorney-at-Law Nirmaleen Balaratchchi, the Kamalasabeysan scholarship holder who topped the Batch of the Diploma Course in Commercial Arbitration was awarded the S S Wijeratne prize and G.K.P. Gunaratne (Quantity Surveyor) and H.L. Vindya Kalpani (Quantity Surveyor) were presented Merit Awards. S.D.K. Tissera (Attorney-at-Law) and G.K.P Gunaratne (Quantity Surveyor) shared the Walter Ladduwahetty prize for the Best Award.

Lakmali Jayaweera, who topped the Batch of Shipping Law & Practice Course together with Nirusha Ranjitkumar (Attorney-at-Law - Nithya Partners), Shayanga Fernando (Attorney-at-Law - Nithya Partners), Sachintha Kahandage, Wishwa Wijesuriya, Wasana Silva, Hasitha Abeysundara, Rehan Almeida (Attorney at Law) were presented with Merit Awards.

Thirty five diploma students were awarded the diploma in commercial Arbitration and Twenty three students were presented with the ICLP - CCC Certificate in Shipping Law & Practice.

The ICLP took this opportunity to honour outgoing Chairman of the Diploma in Commercial Arbitration Justice Saleem Marsoof PC who chaired the Board for seven successful years and the Chairman of the Board of ICLP Arbitration Centre Desamanya C.P. de Silva who chaired the Board of ICLP arbitration centre for six years.


[Questions and answers]

Visiting Parliament

Question: We like to visit parliament. Can you explain the normal procedure to be followed when visiting Parliament?

Answer: General details

Any member of the public may visit the public galleries of Parliament either as a group or individually on any sitting or non-sitting day. Visits are arranged for 30 minutes duration between 9.30 a.m. to 3.30 p.m. on non-sitting days and till the end of the sessions on any sitting day.

Time of sittings

Unless Parliament otherwise decides, Parliament shall meet in two alternate weeks in each month commencing after the first Sunday of each month and shall sit on the Tuesdays, Wednesdays, Thursdays and Fridays of the first and third of such weeks.

Parliament does not ordinarily sit on Saturdays and Sundays and other holidays and the sittings of Parliament are usually held from 1.00 p.m. to 7.30 p.m. On some days the sittings might be extended beyond 7.30 p.m. During the budget period, generally, the allotted hours of sittings shall be 9.30 a.m to 12.30 p.m and 1.00 p.m. to 7.00 p.m. and may subject to change from time to time.

Permission to visit Galleries

In order to visit the Public Galleries, permission needs to be obtained from the Serjeant-at-Arms. Such a request may be made by contacting the Parliament directly or by completing and forwarding an Inquiry Form. In your inquiry you would have to furnish the following details:

1. Full names and addresses of the visitors
2. National Identity Card (NIC) numbers of the visitors
3. Date and time of visit
4. Purpose of visit
5. Your contact details

Once your details have been processed the Serjeant-at-Arms would contact you to confirm your request and in turn would issue the pass to enter the Parliamentary Complex.

Instructions for visitors to Parliament

1. Only those who possess a pass issued by the Serjeant-at-Arms, valid for the date of visit, will be allowed to visit the Parliamentary Complex. Therefore, the permission card issued to you by the Serjeant-at-Arms for that purpose should be brought by you without fail and kept safely with you until you leave the Parliament building.

2. On account of the security arrangements in force at present in Parliament, items such as parcels, hand bags, brief cases, travelling bags, books, newspapers, documents, pens, pencils, rain coats, umbrellas, cameras, cellular phones, electric or electronic items or accessories, cigarettes, tobacco, chews of betel, smoking pipes, food items, hats etc. are not allowed to be brought into the Public Gallery.

Therefore, refrain from bringing in such items. If you have any of the above mentioned things with you, leave them in your vehicle. Apart from the above mentioned items, any other items which may be deemed as those not to be allowed inside the Gallery, too will not be allowed to be brought in.

3. Since infants and small children are not allowed to be brought into the Gallery at times when Parliament is in session, they should not be taken into the Gallery. You must ensure that babies and small school children are not seated in the first row of the Gallery.

4. Visitors who are not properly dressed will not be allowed to enter the Galleries. Therefore, visitors to the Public Galleries should be properly dressed.

5. The members of your group must maintain complete silence while they are in the Public Gallery or in any other area of the building. You should make sure that they maintain silence so that the functioning of the institution is not disturbed and that they behave properly and also that they will not damage audio visual and other equipment in the Public Gallery and the Institution.

Smoking, talking, clapping, merry-making, making various sounds, cracking jokes, walking about and keep standing, making fun, making signals using facial expressions, peeping into the chamber, pointing fingers, hands, legs etc. towards the Chamber, throwing various objects into the Chamber, waving or making signals to the Hon. Members of Parliament, sleeping, taking down notes, and reading books and papers are strictly prohibited while you are in the Public Gallery .


Going abroad through an agent

Question: I have decided to go abroad for employment through a local agent. Is it valid to go abroad through an Agent? I need your kind advice.

Answer: If you have found employment through a local agent, it is highly imperative that you check on the following:

* Is your agent licensed under the Sri Lanka Bureau of Foreign Employment (SLBFE)

* Is the licence valid till the time of recruitment?
* Has the agent obtained the necessary approvals from the SLBFE?
* Is the First Approval valid till the time of recruitment?

If the above conditions are fulfilled, you can handover the passport and necessary documents as specified by the agent. The passport should be valid for a period of at least two years from the intended date of registration. Thereafter, you must pay the registration fee specified by the SLBFE. This however, does not include the administration cost of agents.

If you are migrating to a Middle Eastern country:

You must only pay the registration fee specified by the Sri Lanka Bureau of Foreign Employment

* You may be required to obtain training if necessary
* You must complete and possess a copy of the job agreement
* You must undergo a medical examination and obtain necessary medical clearance
* Your agent must obtain the necessary approvals from the SLBFE and hand over the following documents to you The passport endorsed with the Sri Lanka Bureau of Foreign Employment registration stamp

- Valid visa
- Air ticket
- Job agreement
- Customer copy of the bank slip
- Insurance certificate

If you need Further information you can contact SriLanka Bureau of Foreign Employment

* Head office:
* 94 112 864101 - 105
* 94 112880500


Changing name in Birth Certificate

Question: I was born in Chilaw. In the Birth Certificate, my name appears as ‘Sandi De Silva’.

I am now a French citizen. In all my documents, including the passport and citizenship certificate, my name is given as Sandra De Silva.

I intend to apply for Sri Lankan Citizenship and eventually come back home. Having a different name in my Birth Certificate will create problems for me.

Can I change my name in the Birth Certificate to Sandra De Silva? If no, please advise to the steps to be taken.

Sandra De Silva, France - Sent by email

Answer: Under the Birth & Deaths Ordinance, you can change the name in your Birth Certificate at any time. You have to visit the Divisional Secretary’s Office and get the Application Form. Thereafter fill the same and hand it over to the Divisional Secretary’s Office where you were born. In that procedure you have to submit an affidavit with three documents to prove that you are using the proposed name for the last one year.

Otherwise you have to put a paper advertisement regarding the proposed name and use it for one year. Thereafter you can change the name. In that case, your Birth Certificate can be amended according to the proposed name. In Cage 13 of your Birth Certificate, your new name will be seen.If you need any help you can contact LAC Head office at Colombo .


Jurisdiction of a Provincial High Court

Question: Please let me know how the High Court exercises its jurisdiction. Your kind reply would be greatly appreciated.

Answer: The Provincial High Courts were established under Article 154 P of the Constitution. A perusal of the provisions of this Article would disclose that a High Court established under the said Article has original criminal jurisdiction as well as appellate and revisionary jurisdiction.

The Provincial High Court exercises the following jurisdiction:

(a) Original criminal jurisdiction in respect of offences committed within the Province.

(b) Appellate and revisionary jurisdiction in respect of orders and judgments of the Magistrates courts and Primary courts within the Province.

(c) Issue of Writ of Habeas Corpus in respect of persons illegally detained within the Province.

(d)Issue of Writs of certiorari, prohibition, procedendo, mandamus and quo warranto against any person exercising within the province any power under any law or Provincial Council statute, in respect of any matter set out in the Provincial Council list of subjects in the 13th Amendment.

(e) Appellate and revisionary jurisdiction in respect of orders made by Labour Tribunals within the Province.

(f) Appellate and revisionary jurisdiction in respect of orders made under sections 5 and 9 of the Agrarian Services Act No.58 of 1979 in respect of any land situated within the Province.

(g) Appellate jurisdiction in respect of judgments if small claims courts within the Province; and (h) Any other jurisdiction conferred by Parliament. (See Act No.10 of 1996)


Can FR case be filed in SC after one month?

Question: As far as poor people are concerned, it is difficult to file a Fundamental Rights (FR) application within one month. Is there a remedy in this regard? Please advise me.

Answer: Article 17 read with Article 126 of the Constitution clearly states that the time limit is one month from the date of violation. Therefore such an action cannot be sustained in the Supreme Court if filed after one month.

However, if one is prevented or incapacitated from invoking the fundamental rights jurisdiction- e.g. incarcerated or hospitalized, then one month will not begin to run until such is removed. If you are in a difficulty to file papers within one month, it is advisable to write a letter stating the facts of your case to the Chief Justice. The letter should be sent by registered post.The address as follows:

Honourble Chief Justice, Supreme Court Complex,Colombo 12.

The Human Rights Bureau of the Legal Aid Commissin is established to help poor litigants to file a Fundamental Rights cases in this regard. Tel No - 0113070255.

 

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