Legal aid commission

Eco-friendly island

In the past year, various environmental issues came into the spotlight, rather frequently. From June to August 2012, we saw droughts severely affecting the North Central, North and North Western Provinces. This resulted in over 50,000 acres of paddy land left uncultivated. It was also reported that there was a fall in the economic growth of the country from 7 percent to 6.7 percent within this short period of time. December 2012 brought with it heavy floods which hit 21 districts of the island killing 40 people and displacing 400,00 more.

These may seem like events which happen every other year. However one cannot ignore the intensity or the continuation of such extreme weather patterns which have rocked Sri Lanka and affected it in terms of both lives and property. What has changed over the past few years for our country to experience this? For this we may find answers in the changing quality of our air, water and soil and other environmental systems. The numerous and extremely important services we derive from these systems are not always obvious and therefore are sacrificed often to make way for the more conspicuous benefits of economic development.

Focus on infrastructure is essential for a country to move forward in development. In fact, the word development is generally attributed to the provision and maintenance of stable infrastructure systems. However development must be given a rounded interpretation. It should encompass policy changes on social welfare, access to the law and most importantly, the environment protection of the country.

Sri Lanka being a small island, the importance of co-exisiting with nature cannot be over emphasized. The majority of the rural population of our country depend on either farming, agriculture, fishing or home industries for their survival. These livelihood activities rely heavily on the eco system and climate patterns of that particular area.

In 1900, it was reported that we had a total forest cover of 70 percent land area. The forests of our country are instrumental as catchment areas for trapping water, in maintaining the alkaline balance of the soil and in hilly areas holding the soil together, preventing mud slides.

In addition tropical rainforests such as Sinharaja are only comparable to coral reefs in the diversity of plants, animals and micro-organisms they shelter. Forests are also considered the ‘lungs of the earth’, as they trap and sequester carbon dioxide, maintaining the greenhouse effect at optimal levels, and holding back the phenomenon of climate change. However over the past years this cover has declined rapidly and today it totals to a figure of 23.9 percent. It is estimated that 40,000 ha of forested land is cleared every year, falling prey to development activities and the clearing of land for agriculture and chenna cultivations.

Illegal sand mining has been an environmental concern for many years in Sri Lanka. Sand mining of rivers results in sea water seeping into the fresh water of rivers, altering river ecosystems in ways that may take a long time to recover. As for the farmers that depend on such freshwater systems for irrigation, this would indicate disaster as they will not be able to cultivate crops with salty water. Transporting and mining without permits is illegal under the Mines and Minerals Act.

In May 2012, the Environmental Ministry had brought new regulations to allow persons to transport sand without permits.

The boom in the tourism sector had resulted in many tourist accommodation units such as hotels and guest houses popping up island-wide rapidly mostly along the coast. The story of the sea turtle is worth narrating as a good example of the impact of such unplanned development. For centuries, marine turtles have swum over to the sandy beaches of our island, to construct nests in which they lay eggs. Of the seven species of marine sea turtles found globally, five have been known to nest in Sri Lanka. More importantly, all five of these species are either endangered or critically endangered, as categorized by IUCN.

It is said that turtles journey long distances throughout their life time and during fertile periods, return to the same beach they were hatched in, to lay eggs. However, many turtles die before this period and only a few return. When they do, it is to find their habitat taken up by hotels and disturbed by human activity.

The tourism industry has also affected the farming and fishing community where agricultural and housing lands have been taken up to build tourist rest spots. This, in the long run will not benefit our country since such acts will result in the economic benefits not filtering down to the average man. The focus instead, should be on sustainable tourism, where natural habitats are protected and local communities become involved as well, so that they too share the benefits.

Sri Lanka does not have a strong environmental legislation. Few laws such as the Forest ordinance and the Fauna and Flora Protection Act have been governing the protection of our environment for many years now. Lack of capacity, resources and know-how as to implementing these laws, political influence and not prioritizing this as equally important to other sectors such as health and education has resulted in the degradation of the environment.

It must be recalled that as an island we are particularly vulnerable to the impacts of a degraded environment. The impacts of climate change such as sea level rise and more frequent natural disasters are already being seen. Other threats such as the threat of invasive alien species to our native biodiversity, depleting levels of groundwater and diminishing tracts of arable soil are only starting to become prominent.

It is a message that cannot be conveyed too frequently. Immediate and effective action to protect our environment should become a primary objective of every citizen of this country, if the environment we live in is to continue nurturing us into the future. At this point, it may be worth remembering something the native Americans recognized centuries ago.

“We do not inherit the Earth from our Ancestors; we borrow it from our Children”

- Swasthika Arulingam AAL, Project Manager,

Programme Support Unit, Legal Aid Commission

Questions and Answers

Law to protect old people

Question: I am retired person with three sons. My children are neglecting me. Are there any laws to safeguard old people like myself? Can I receive some maintenance from my sons?

- Siripala,

Dankotuwa

Answer: Yes, Elders Law No.9 of 2000 has provision to safeguard and protect elderly persons like yourself. Under this law you can ask for maintenance from your children.

You can write to the Chairman, Elders Claims Board , Elders Secretariat, No 150A, LHP Buildings Nawala Road, Nugegoda. If you need any assistance, kindly call over to our Head Office which has set up an Elders’ Unit specially to deserving people like you.

Mediation Board

Question: Can the Police refer disputes to the Mediation Board?

- Taraka,
Gampalagedara

Answer: Yes, The Police can refer you to Mediation. This happens when you go to the Police and they feel that it is a matter which should be resolved by Mediation or where, according to the Law it has to be referred to Mediation.

There are other ways of going to a Mediation Board.

You can make an application to the Mediation Board yourself.

The application can be prepared by yourself. It must state what your problem is very briefly; give your name and address; give the name and address of the other party to the dispute. The Board will then call all of you for a discussion.

The Court may refer your case to the Mediation Board if both parties agree to have it so referred. This is permitted under the Law.

Lost Identity Card

Question: I lost my Identity Card. I have a photocopy of the same. Please let me know how to get my Identity Card back?

- Lasanthi,
Kotte

Answer: If you want to obtain a new Identity Card to, you have to first make a complaint to the police station and get the certified copy of that complaint.

Thereafter you have to meet your Grama Niladari and get an Application Form and have the form duly completed.

After preparing all the documents you have to submit five identity card size (coloured photographs) and the photo copy of the identity card.

It is necessary to submit the original Birth Certificate

The Registrar of Person has ‘One Day Service’ to issue Identity Card on a fee of Rs.500. Other wise you can get your Identity Card from the Grama Sevaka through the normal procedure which will take at least one month.

Copy of Marriage Certificate

Question: I wish to get a copy of my Marriage Certificate. We are Kandyans and we got married on March 20, 1978. Please let me know how to obtain a translation copy of same Marriage Certificate.

- Dhara,
Peradeniya

Answer: If you know the date and year of marriage, you could visit the Divisional Secretariat’s Office, where you got married (Births/Deaths and Marriage Registrar) and obtain Form 121.

The duly completed Form 121 should be submitted together with uncancelled stamps in payment of charges. If stamps are sent by post, it is advisable to send them under registered cover.

All applications should be accompanied by a self-addressed envelope.

If the certificate is required to be sent under registered post, the required registration duty should be affixed to the cover.

The certificate will be issued in the language it had been registered. If a translation is desired a separate application in the relevant form must be made to the appropriate District Registrar or the Registrar-General’s Office, Denzil Kobbekaduwa Mawatha, Battaramulla.

The relevant stamp fees is given below:-

Where the date of registration or the number of the entry is given the stamp fee for one copy of the certificate is Rs.25.

Where the date of registration or the number of the entry is not given and a search of registers not exceeding three months is involved fee for one copy of the certificates is Rs.50.

Search of registers only for a period not exceeding two years, the stamp fee is Rs.100 (No application for search shall exceed a period of two years)

Please do not pay any other fee other than stamp fees mentioned herein.

Marriage In Sri Lanka

Question: What is the minimum age of Marriage in Sri Lanka?

- Mahan,
Moratuwa

Answer: Under the general law and the Kandiyan law, the minimum age of marriage is now 18 years for both males and females. Furthermore under the provisions of the penal code in Sri Lanka, sexual intercourse with a girl who is under the age of 16, with or without her consent amounts to the offence of rape (Section 363 (e) of the penal code ) The age of consent has been raised from 12 to 16 by an amendment to the penal code in 1995 ( Penal code Amendment Act No 22 of 1995 ) However, the above amendment recognized that sexual intercourse with a person’s wife who is below the age of 16 but above the age of 12 will not be considered as rape provided the parties are not judicially separated (section 363(e )) This concession was made on amount of the low age of marriage in Muslims. But the question arose whether sexual intercourse with a girl below age of 12, even thought she is the wife of another man would amount to rape.

There is no minimum age of marriage for Muslims in Sri Lanka. Muslim girls who are below 12 years of age shall not be registered, unless the quazi has authorized the registration after an investigation.

Limit to deductions

Question: I am employed as an Accounts Clerk in a Mercantile Firm in Colombo. My employer is making deductions from my salary as he pleases. I would like to know whether there is any authorized deduction and if so the limit to deduction?

- Sadun,
Giridara

Answer: You are covered by the Shop and Office Employees Act. The deductions which could be made from the salary are termed Authorized Deductions. No deduction can be made without the consent of the employee. The list of authorized deductions is given in the Act e.g. advance of salary, price of any food or article of food supplied, contribution to pension fund, provident fund, insurance scheme, savings scheme, recovery of rent, subscription to Trade Union and others. The permissible maximum deduction from salary is 60 percent of the total salary. There are deductions which can be made without the consent of the employee. They are – Income Tax, Order of Court.

Checking IDs

Question: Since the National Identity Card is a very vital document, kindly educate the general public as to who is authorized to check one’s ID. It is obvious that the Armed Forces personnel and the Police are permitted to do so. Other than these personnel who else has the authority?

- Fernando,
Kandy

Answer: The Police and Armed Forces have been given the power to check one’s identity card. Sometimes, even the peace officers have been given authority by the Police to check identity cards. At all times, a police officer must be present at the time of checking. However, the public has the right to demand the identity of the person who is checking.

When entering private buildings, the security officer can insist the public to produce their identity cards for checking.

Registration of death

Question: Please let me know how to register a past death?

- Sadunika,
Kataragama

Answer: If a birth has not been registered within three months since its occurrence it may be registered.

The death can only be registered only if a period of 25 years has not been lapsed since occurrence of such death, persons eligible for this, any party having interest of, one of the parents, declaration can be produced by, close relation present at the time of death or who took care of the deceased when he/she was ill for the last time, any other party interested.

Amending Birth Certficate

Question: I have been using my name as Sarath Perera in the Marriage Certificate, in my children’s Birth Certificates and in my letters of employment during the last 10 years. However, in my Birth Certificate my name appears as Sarath Appuhami. I want to change my name in my Birth Certificate. Is it necessary to file a case or is there anyway to resolve this matter without going to courts?

- Sarath Perera,
Battaramulla

Answer: Yes, you can amend your Birth Certificate. You have to obtain the B9 Application Form from the Divisional Secretary’s Office. The duly filled application form along with an affidavit and the documents (at least three documents) to prove that you are using the name ‘Sarath Perera together with your Birth Certificate and hand over these documents to the Registrar of Birth and Deaths, Divisional Secretary’s Office where you were born. The Registrar will thereafter amend ‘Cage 13’ appearing in the Birth Certificate.

Legal claims of wife

Question: I own a house in Ratmalana. In 1986, in order to obtain a bank, loan I had to show my income. I was employed abroad then and Power of Attorney was given to my mother. My mother, father, sister and brother-in-law showed their income. Now the loan is settled and I have since married.

I want to take all these names out. They are all prepared to give in writing that they have no claims whatsoever on the said property. I want to write out a fresh deed in my name only and after my death to go to my son. I have no intention of leaving anything for my wife.

Please advice about the legal claims of a wife in your Legal Aid Page.

- M.Perera,
Panadura

Answer: Your question is not clear to us. It is important to find out whether the title of your property had been transferred to your mother. If so, the title had been passed at that time to your grandmother. Therefore, you have no right to the said property. However, if they are willing to re-transfer the said property to you, thereafter you can transfer or gift the said property to your son.

Registration of factories

Question: Is it necessary to register factory under the Law?

- Kariyakarawana,
Mahara

Answer: Every factory should be registered at the respective District Factory Inspection Engineer’s office of this division. Relevant application (CFIE-4) together with the factory plan should be submitted for this registration. This service is free of charge.

Industrial Safety Division, Department of Labour, 97, Jawatta Road, Colombo 5.

Head Office had been located at the above address and services of the institution have been decentralized in 11 regional offices.

Disabled pensioner ill-treated by the wife

Question: I am a disabled pensioner. My wife is now ill treating me. She is scolding me and also hitting me. I cannot go to the police station as I cannot walk. Please advice me as to where I should go for help.

- Premachadra,
Kosgama

Answer: Under the Domestic Violence Act No.34 of 2005, you can seek relief to get a protection order against your wife. There are three ways of getting a protection order – i.e. on your own by making an application to the Magistrate’s Court or via making a complaint to the police station or through a lawyer.

According to your question you have not taken any action as you are disabled. So please call 118 or 119 and make a complaint to the Police. On your complaint, the Police will visit your place of residence and they will take suitable action to protect and safeguard you. Otherwise you can call the Legal Aid Commission Disabled Unit at the Head Office or any of its Legal Aid Centres islandwide.

The Disabled Act No.28 of 1996 and Disabled Laws and Regulations also have provisions to safeguard disabled persons like you.

Aggrieved person

Question: Kindly let me know who is “an aggrieved person” under the Prevention of Domestic Violence Act No.34 of 2005. Can the legal aid commission appear on behalf of an aggrieved person?

- Sadunika,
Labugama

Answer: Under the Prevention of Domestic Violence Act No.34 of 2005, “an aggrieved person” is defined as follows:- the father, mother, grandfather, grandmother, stepfather, stepmother, the son, daughter, grandson, granddaughter, stepson, stepdaughter, the brother, sister, half-brother, half-sister, step-brother, step-sister; siblings of a parent; the child of a sibling; child of a sibling of a parent

We are giving legal aid for “an aggrieved person” under the Prevention of Domestic Violence Act.

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Medical Leave

Question: I am working as HRM in a Private Limited Company with 25 employees. Please let me know how many medical leave is available per annum. Also please let me know for employees to get annual or casual leave, how many days notice should they give to the HRM.

- Sanka Sanjeewa,
Kandy

Answer: The Law does not make any provision for medical leave. The law does not stipulate any period of notice for availing of casual or annual leave. Casual leave can be availed of any time depending on the circumstances for which leave is required. Annual leave is availed of by mutual agreement with the employer.

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ICLP-CCC Certificate Course on Shipping Law and Practice

The ICLP in collaboration with CCC has scheduled to commence the third programme of the ICLP-CCC Certificate Course on Shipping Law and Practice on January 20, 2013.

The syllabus include Maritime Law, Admiralty Law, Port Operations, Marine Insurance, Carriage of goods by sea, International Trade, Custom Formalities.

The course fee of Rs. 45,000 is payable in three installments. Special offers available for more than three company nominees and Attorneys-at-Law less than two years experience.

Half scholarships available for few undergraduates and law apprentices. For more information and registration contact the Registrar on 2346163/4, 0722775780 or email to: [email protected] or log on to www.iclparbitrationcentre.com

ICLP Course Registrar

A vacancy exists for a suitable candidate with good PR and marketing skills for recruitment immediately.

English competency, computer literacy, sound knowledge on handling PA systems, ability to work with least supervision are prerequisites.

The suitable candidate will be offered scholarships to follow the ICLP Diploma in Commercial Arbitration and ICLP-CCC Certificate Course on Shipping Law and Practice with an allowance commensurate with qualifications.

Interested individuals may send the completed curriculum vitae on or before January 15, 2013 to reach, Chief Executive Officer, ICLP Arbitration Centre, No.61, Carmel Road, Colombo 3 or [email protected]. Further Details: Tel-2346163/4