legal aid commission

Global Environment Crisis

How can you buy or sell the sky, the warmth of the land? the idea is strange to us. If we do not own the freshness of the air and the sparkle of the water. How can you buy them?

We are part of the earth and it is part of us. The perfumed flowers are our sisters, the deer, the horse, the great eagle, these are our brothers. The rocky crests, the juices in the meadows, the body heat of the pony and man - all belong to the same family.

Chief Seattle

In 1854, the Great White Chief in Washington made an offer for a Large Area of Red Indian Land and promised a reservation for the Red Indian people. Chief Seattle’s reply has been described as the most beautiful and profound statement on the Environment ever made. It says this earth is precious, but today a variety of environmental problems affect our entire world.

Global warming, air pollution, water pollution, acid rain, ozone depletion, hazardous waste, rain rorest destruction are some of the main environmental issues.

Numerous binding international agreements now encompass a wide variety of environmental issue areas, from terrestrial, marine and atmospheric pollution through to wildlife and biodiversity protection. Many countries have adopted comprehensive environmental protection laws.

Some of the most well known multinational agreements include the Kyoto Protocol, Vienna Convention on the Protection of the Ozone Layer, Rio Declaration on Development and Environment, Agenda 21, Forest Principles, Convention on Biological Diversity and Framework Convention on Climate Change.

The most widely known protocol in international environmental law is the Kyoto Protocol which followed from the United Nations framework convention on Climate Change. The Protocol was initially adopted on December 11, 1997 in Kyoto, Japan, and entered into force on February 16, 2005. As of September 2011, 191 states have signed and ratified the protocol. The purpose of the protocol is to decrease global warming however USA hasn’t ratified the protocol yet. International environmental law also includes the opinions of international courts and tribunals. The courts include the International Court of Justice (ICJ); the International Tribunal for the Law of the Sea (ITLOS); the European Court of Justice; the European Court of Human Rights and other regional treaty tribunals. One of the biggest challenges in international decisions are to determine an adequate compensation for environmental damages.

The Trail smelter arbitration, 33 AJIL (1939), Nuclear weapons testing cases such as between New Zealand and France before the International Court of Justice, Gabcikovo - Nagymaros Dam Case, ICJ Rep (1997), are some of the important environmental law cases.

Certain environmental protection conferences, including 1972’s United Nations Conference on the Human Environment, 1983’s World Commission on Environment and Development, 1992’s United Nations Conference on Environment and Development and 2002’s World Summit on Sustainable Development have been particularly important.

Environmental protection has to be considered as an integral part of the development process.

The United Nations 2005 World Summit Outcome Document refers to the “interdependent and mutually reinforcing pillars” of sustainable development as economic development, social development and environmental protection.

Sustainable development is a pattern of economic growth in which resource use aims to meet human needs while preserving the environment so that these needs can be met not only in the present, but also for generations to come. Sustainable development ties together with Environmental protection and it deals with Inter - Intra Generation Equity.

Environmental pollution is a serious global issue and it affects the whole world. Fighting against environmental pollution isn’t easy, not only because environmental pollution has so many different forms but also because the fight against pollution means in most cases environment vs. industry, where environment is almost always on the losing side.

Industries are still the biggest pollutants but most of them remain unpunished because of the economic benefits they bring to certain areas.

Almost each country in the world has some laws that prohibit environmental pollution and in the same predict punishments for offenders. But the main problems lie in monitoring the environment as well as finding the culprit responsible for pollution. These mechanisms will have to significantly improve if world wants to stop environmental pollution.

As individuals we can support environmental protection in different ways, e.g.: planting trees, using eco friendly products etc: All the Developed and Developing states should promote environmental protection because the destiny of human kind depends on the future of mother Earth.

Thamarashi Wickramanayake,
Legal Officer,
 Legal Aid Commission of Sri Lanka

[Questions and Answers]

Division of property in Jaffna after marriage

Question: I intend marrying a girl from Jaffna. I want to know how the property will be divided after our marriage. Please advice.

-Chatura, Naramala

Answer: You are governed by the Thesawalamai law. Thesawalamai law is applied to inhabitants of Tamils in the Northern Province. According to this law, property can be divided into three categories, such as inherited property of the man from his parents; inherited property of the wife from her parents and the acquired property of the man and wife during their lifetime together.

If the girl owns or if any property is given to her as Dowry or Gift those properties will be owned by her alone. Husband will not get any share from those properties even if she dies. Only the children born to her by that marriage will get those properties after her death. If your wife died intestate (without writing a will) and issueless (without children) the property owned by her alone (Dowry properties or properties owned before marriage) will go equally to her parents.

If any property purchased after marriage –

½ will go to the wife

½ will go to the husband

Selling of undivided property to a third party

Question: Can a Jaffna Tamil sell an undivided share belonging to him/her to a third party who is not a co-owner? I await your kind reply.

- M. Jayasekara, Ratmalana

Answer: If he/she sells his/her undivided share to a third party, the other co-owner can deposit the amount of money declared in the deed or market value of the land in courts and he can ask the person who sells the undivided share to re-transfer the said undivided share to him/her under the pre-emption ordinance. Under the law of Thesawalamai, this action should be filed within one year from the date of registration of the disputed deed.

Cheque returned due to lack of funds

Question: I have a business friend. He gave me Rs. 100,000 by cheque to be returned. This was part of the business agreement. When I deposited the cheque to the bank, the cheque got returned due to lack of funds in the bank. I phoned him several time but he refused to return the money back. Please let me know the relief I can seek through court of law.

- M. Anwer, Ampara

Answer: You have to make a complaint to the police station. Each police station has a Fraud Bureau. Then they will investigate in to the matter and file action in the Magistrate’s Court.

Accident matter

Question: My uncle met with an accident two months ago. He was hospitalized and could not even talk. We have informed the Police. So far the Police have failed to take any action in the matter. What shall we do? Please advice.

-Karunarathna, Kurunegala

Answer: When an accident occurs, it is your duty to inform the Police. If the Police fail to take any action regarding the matter you can complain to the ASP of the relevant police station. The ASP will advice the relevant police officer to take immediate action.

Please note in an accident cases, the Police will proceed with the matter in the Magistrate’s Court. In that event your brother can receive a small amount of compensation in the Magistrate’s Court. However, under the Civil Procedure Code parties can file action to ask for compensation in the District Court within two years from the date of accident.

Foreign employment matter

Question: I have decided to go to Middle East for a foreign employment. I would like to know what steps that I should follow before my departure. I await your kind reply.

- Carmen, Sent by Email

Answer: You must register at the Sri Lanka Foreign Employment Bureau. The address is 234, Denzil Kobbekaduwa Mawatha, Koswatta, Battaramulla, Fax: +94 11 2864141, Email: [email protected] , Tel : +94 11 2864101- 5

When you seek a foreign employment through an agency, it should be registered under the Sri Lanka Foreign Employment Bureau.

You must have a valid passport and visa.

You must sign a Service Agreement and a copy of the agreement should be kept in your custody.

Department of Debt Conciliation Boards

Question : Could you please let me know whether the Debt Conciliation Board can intervene in cases of loan transaction with any bank or institution? I would also like to know the contact details of the Debt Conciliation Board.

- Amanda, Mahawewa

Answer: The Department of the Debt Conciliation Boards cannot intervene in cases of loan transactions with any bank, or any institution registered with the Central Bank of Sri Lanka as a lending Institution under the Finance Act of 1988. The Debt Conciliation Board is situated at No. 248/11, Weera Denzil Kobbekaduwa Mawatha Bathtaramulla.(Telephone Numbers – 011-2865477, 011-2865488

Relief granted by Debt Conciliation Boards

Question: What are the reliefs granted by the Debt Conciliation Board? I await your kind answer through your valuable Legal Aid page.

- Rachitha, Colombo

Answer: In the procedure adopted in granting the aforesaid relief, the Board concedes other benefits to the public.

When an action is instituted in a court of law in respect of any property, the litigants have to pay a stamp duty in proportion to the value of the property involved. But all proceedings before the Debt conciliation Board are exempt from stamp duty.

A sum of Rs.40 as cost of the service of notices and a small fee in proportion to the loan as cost of notices to be published in the Gazette, will be levied.

Parties to proceedings before the Board can conduct their own cases without appearing by Attorneys-at-Law. But both parties have the option to retain Attorneys-at-Law if they so desire in cases where complex legal issues are involved specially in respect of deeds, etc.

In effecting a settlement the debtor gets the concession to repay the debt in easy instalments depending on his capacity to pay and the interest too will be reduced to a very responsible rate.

In the case of a conditional transfer, the Board converts the conditional transfer into a mortgage.

This is a substantial relief which accrues to a debtor. Further, the amendment of the Act enabling intervention in respect of loan transactions on deeds of transfer is also a great relief to the debtors.

Financial Ombudsman

Question: I want to know about the Financial Ombudsman in Sri Lanka. Please help me.

-Jayatilaka, Kadawatha

Answer: With the concurrence of the Central Bank of Sri Lanka, a scheme called the “Financial Ombudsman, Sri Lanka” has been established. The commencement date was December 1, 2003.

The Financial Ombudsman is a person of high repute with experience in Banking and Financial Services.

He has been selected by a panel of representatives from the Central Bank, the Securities Exchange Commission, the Institute of Chartered Accountants, the Bar Association, the Organization of Professional Associations and a representative of the participating financial institutions.

The Financial Ombudsman has the power to inquire into and settle any complaints and disputes between individual customers and the financial institutions covered by the Ombudsman Scheme.

The financial institutions that are voluntarily participating in this scheme are only those regulated and supervised by the Central Bank of Sri Lanka. Currently they consist of the following;

Licensed Commercial Banks Licensed Specialised Banks

Registered Finance Companies supervised by the Central Bank

Primary Dealers licensed with and supervised by the Central Bank

Leasing Companies licensed with and supervised by the Central Bank

Every complaint to the Ombudsman must be in writing and signed by the complainant. It must also be accompanied by a fee of Rs.250 which can be paid by cash, bank draft, personal cheque, money order or postal order. If the complaint is successful or partly successful, that fee will be refunded. If not, it will be forfeited and the complainant cannot ask for a refund.

The Ombudsman’s Office is located at: No 143A, Vajira Road, Colombo 5.

Telephone:94 11 259 5624

Telefax:+94 11 259 5625

Email: www.financialombudsman.lk

Registrar of Persons’ Departments

Question: Please let me know whether there any branch officers situated in the Registrar of Persons’ Department in Sri Lanka.

-Dayasiri, Mahara

Answer: The head office is situated at C45, Keppetipola Mawatha, Colombo 05.

Tel - 011-2583199, 011- 2508022

Fax - 011-2593634

E-mail: [email protected]

Website: http://www.rpd.gov.lk

Office of Registration of Persons Record Room No. 239, High Level Road, Nugegoda. Tel : 011-2856141

Office of Registration of Persons District Secretariat, Jaffna Tel : 021-2225052

Office of Registration of Persons District Secretariat, Kandy Tel : 081-2234752