LEGAL AID COMMISSION

UNIQUE BIODIVERSITY OF SRI LANKA

‘Biological diversity’ means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems. (Article 2 of the Convention on Biological Diversity)

Sri Lanka has been identified by the Conservation International (CI) as one of the 25 biodiversity hot spots in the world. The major ecosystems of Sri Lanka are forests, wetlands, coastal and marine ecosystems. Rain forests such as Sinharaja provide habitats for a wide diversity of fauna and flora species.

Increasing population, development process, habitat degradation and loss, deforestation and urbanization, invasion of non-native species and overuse resources by humans are the major causes of biodiversity loss. Global climate change threatens species and ecosystems. Air, water and land pollution poisons all forms of life and poses a further threat to species and ecosystems.

Several International Treaties were adopted to conserve biological diversity. The Convention on Biological Diversity (CBD) was opened for signature at the Earth Summit in Rio de Janeiro on June 5, 1992 and entered into force on December 29, 1993. Conservation of biological diversity (or biodiversity), sustainable use of its components, and fair and equitable sharing of benefits arising from genetic resources are the main goals of this convention. The convention recognized for the first time in international law that the conservation of biological diversity is ‘a common concern of humankind’ and is an integral part of the development process. The convention covers all ecosystems, species and genetic resources.

The Cartagena Protocol on Biosafety also known as the Bio-safety Protocol, was adopted in January 2000. It is a supplement to the Convention on Biological Diversity (CBD).This protocol is based on bio-safety and it seeks to protect biological diversity from the potential risks posed by genetically modified organisms resulting from modern biotechnology.

The Ramsar Convention (The Convention on Wetlands of International Importance, especially as Waterfowl Habitat) was developed and adopted in Ramsar, Iran on February 2, 1971 and came into force on December 21,1975. It is an international treaty for the conservation and sustainable utilization of wetlands.

CITES (the Convention on International Trade in Endangered Species of Wild Fauna and Flora), also known as the Washington Convention) was The Convention on the Conservation of Migratory Species of Wild Animals (also known as CMS or the Bonn Convention) was signed in 1979 in Bonn and entered into force in 1983. It was drafted to conserve terrestrial, marine and avian migratory species throughout their range. It was drafted with the support of the United Nations Environment Programme concerned with the conservation of wildlife and habitats on a global scale. Since the Convention’s entry into force, its membership has grown steadily to include over 100 Parties from Central and South America, Asia, Europe and Africa.

There are a number of biodiversity conservation laws in Sri Lanka such as the Coast Conversation Act No.57 of 1981, Marine Pollution Prevention Act No. 59 of 1981, Fisheries and Aquatic Resources Act No.2 of 1996, National Environment Act (Amended by Act No. 56 of 1988), Forest Ordinance, Fauna and Flora Protection Ordinance (including the Amendment Act No. 22 of 2009) and Plant Protection Act No.35 of 1999.

Furthermore, The Ministry of Forestry and Environment launched a Framework for Action On Biodiversity Conservation in Sri Lanka and it was approved by the Cabinet of ministers on August 27,1998. As it says the overall national goal of biodiversity conservation is, therefore, to conserve the biological diversity of Sri Lanka, while fostering its sustainable use for the benefit of the present and future generations. We should preserve biodiversity as priceless in order to maintain our lives on earth.

- Thamarashi Wickramanayake – AAL,

Legal Officer,
Legal Aid Commission of Sri Lanka

Book Review:

In Search of a New Sri Lankan Constitution

Author: V. K. Nanayakkara [email protected]
Tel: 0773 429540
ISBN 978-955-658-312-0 Stamford Lake (Pvt) Ltd;
Price:Rs 1450; 500 pages
Reviewed by S.S. Wijeratne

Does Sri Lanka need a new Constitution? If you are interested in finding the answer and wish to join the debate, I recommend V.K. Nanayakkara’s volume ‘In Search of a New Constitution’ as it responds in the affirmative by pointing out the contradictions and textual errors inherent in the text. At a time when the media is being used to misinform the public about the country’s constitution it is a timely and superlative response in answering the distortions.

The idea of writing a book about the impact of the Sri Lankan Constitution on the country’s institutions and political system is very interesting. He has a mastery of the relevant case law and an interesting perspective stemming from his educational and employment background. The book is well researched, articulate and thought provoking.

The book is divided into three sections. Part A deals with the evolution of constitutional government from 1796 right up to the Independence Constitution of 1946/47 and the First Republican Constitution of 1972. Part B concerns the 1978 Constitution.

The content of Part B includes definitions and descriptions of the major features, such as the significance of the Preamble, sovereignty, republicanism, state, nation, fundamental rights and the doctrine of the separation of powers. A separate chapter deals with the Sri Lankan Presidency. While discussing the functions of Parliament in Chapter 10, he examines the causes for its decline.

Chapter 11 asserts that as presently constituted, the judiciary is the weakest of the three branches of government. For that reason, the author recommends the vesting of the judicial power of the people directly in the judiciary and constitutional recognition of judicial review that allows for invalidation by the judiciary of legislative and executive acts.

He advocates the restoration of the Seventeenth Amendment with a revision to eliminate the involvement of political parties in the Constitutional Council.

Part C focuses on future directions. There the author answers a few questions he raises in five separate chapters. The purpose of Chapter 13 is to address the different regime types that evolved in liberal democracies and try to fit Sri Lanka into one of them. A thought provoking new concept put forward by the author is the characterization of the 1978 Constitution as one modelled on the Weimer Constitution of Germany which paved the way for Hitler, in contrast to a French model as advocated by many distinguished political scientists. The chapter closes with an assessment of the most appropriate regime type for Sri Lanka.

Chapter 14 raises the question - Is Sri Lanka a democracy. He argues that impunity for human rights violations in Sri Lanka, silencing dissent, official secrecy and absence of media freedom, indicates an increasing authoritarian trajectory of political culture under the Executive Presidency making Sri Lanka’s claim to be a democracy rather tenuous. Titled “Is Sri Lanka a unitary state?” Chapter 15 poses this controversial question.

The author contends that so long as the Provincial Councils are not mere administrative units but in their own right constitutional potentates with centre, it cannot be argued that merely because it is labelled so, the Constitution is unitary.(p. 406)

Based on the theoretical framework presented in Part A and the critique of the 1978 Constitution in Part B, the final chapter delineates the way forward for a new constitution for a Third Sri Lankan Republic.

He adduces the reasons as to why the Constitution needs a complete re-write. First, it is a long and technical document. Second, it contains a lot of contradictory statements due to constant tinkering with the text. One has to resort to constant cross referencing to ascertain a particular provision.

Third, our glimpses of the Sri Lankan Constitution in the preceding chapters show that what it says is often not what is found in reality. The socialist state is one such example. Fourth, the textual anomalies can be traced to a 13th Amendment hurriedly superimposed on the existing text without corresponding revisions.

For example, the unitary label in Article 2 is retained while sections were transposed from the Indian federal constitution.

A new constitution can avoid the repetition of such monstrous distortions remaining in the text.

The final chapter draws together some common themes which point us towards a new constitutional dispensation for a Third Republic. They are a return to parliamentarism, a bicameral system, restoration of Independent Commissions under the Seventeenth Amendment and establishing judicial review.

‘In Search of a New Constitution’ is informative and analytical and is useful for students of law and politics, constitutional lawyers, researchers and policy makers and parliamentarians in understanding the strengths and weaknesses of our Constitution. I commend the effort of the author in putting together a comprehensive treatise.

The book is designed to provide the lawyer and the general reader with an analysis of the main issues about constitutional reform. The chapters in this volume have been presented so that students with no special knowledge of constitutional law and political science can understand and appreciate the subject matter.

It offers a road map for the novice and at the same time a deeper understanding of the key historical, socio-political and legal events which have shaped the constitutional landscape of the country.

ICLP-CCC Certificate Course on Shipping Law & Practice

The ICLP in collaboration with CCC will commence the third programme of ICLP-CCC Certificate Course on Shipping Law & Practice on January 20, 2013. The syllabus includes Maritime Law, Admiralty Law, Port Operations, Marine Insurance, Carriage of Goods by sea, International Trade and Customs 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

[Questions and Answers]

Correcting Errors in the Certificate of Marriage (General)

Question: I want to correct my Marriage Certificate.Please let me know the types of documents required to do so.

- Anuruddha,
Dodanduuwa

Answer: Request should be made to the Court by inter parties for correction of errors made during the registration.

Documents to be submitted,

Certificate of birth

Documents to be introduced to prove the relevant information (Identity card, Service certificate, Grama

Niladari certificate, Children’s Birth certificate, Bank Book)

The request should make to the District Court of the area where the inter parties residing.

Registration of births occurred in a Registered Estate

Question: If the child’s birth has been occured in an Estate, how can they register the child’s birth?

Answer: Yes, they can register the birth. The procedure as follows:

1. Inform the estate superintendent within seven days of the birth is occurred.
2. Persons required to give information,

Father
Mother

Each person present at the birth

3. Estate superintendent will certify the application and send to the Divisional Secretariat through the District Medical Officer.

4. The birth is registered by the District Registrar and the certificate of birth will send to the estate superintendent.

5. Certificate of birth can obtain from the estate superintendent by the informant free of charge.

Muslim marriage

Question: Please let me know how Muslims register their marriage.

- Fathima,
Modara

Answer: The bridegroom has to inform the registrar of Muslim marriages about the registration of the marriage.

Declaration can obtain from the registrar of Muslim marriages.

Must get the permission from the Quazi if the bride is less than 12 years of age.

Bridegroom, Wali of the bride, person who conduct the Nikah ceremony, two witnesses and the Registrar have to sign in the register of marriage after the Nikah ceremony took place.

The certificate of marriage will issue free of charge by the registrar of Muslim marriages.

Alternation of name or address in the already issued TIN Certificate

Question: I want to alter my company’s address in the TIN Certificate. How do I alter my address in the TIN Certificate issued by Inland Revenue?

- Magama,
Rathnapura

Answer: Eligibility - those who have altered their business names or the address of the business premises mentioned in the certificate.

Places from where applications can be Obtained. No prescribed application forms.

Process of Submitting Applications Taxpayer Service Unit: 1st Floor, South Wing, Department of Inland Revenue, Chittampalam A. Gardiner Mawatha, Colombo 02.

Hours for Submitting Applications: From 8:30 a.m. to 4:15 p.m.

Fees Payable for Obtaining the Service: Nil

Supporting documents required

* Original TIN certificate already issued.

* In case change/Alteration of address of company or Form 13 which certify by the Registrar of companies.

* In case of change the company name form 4 which issued by the Registrar of companies (with photo copies). In case of individual or partnership business amended business registration certificate.(with photocopies) The written request for alteration to be made by the owner of the business or by a director in charge of the company. In case of income tax payers, the receipt of last payment.

Note1. The TIN certificate will be issued only to the applicant or authorized person.2. If the TIN certificate has been lost or misplaced, a duplicate copy will be issued only on submission of an affidavit. More Details: 2328702

Registration of transfer of motor vehicle

Question: Please let me know the types of forms and the procedure that are needed to register transfer of motor vehicle.

- Samaratunga,
Mahara

Answer: Step 1: Registered Owner should Obtain M.T.A. 6 and M.T.A. 8 Application Forms from either:

Main office at Colombo (priority service)

Relevant District office (normal service)

Step 2: Registered owner should retain and duly complete Form A and A1 of M.T.A. 6Step 3: Registered owner

should handover Form B and B1 of M.T.A. 6 and Form C and C1 of M.T.A. 8 to the New Owner Step 4: Registered

owner should send Form A of M.T.A.6 to the Commissioner of Motor Traffic by Registered Post or by hand and retain A1 of M.T.A.6 with him.

Main office at Colombo (priority service)

Relevant District office (normal service)

Step 5: New owner should Pay the registration fee at a bank and obtain the voucher.Step 6: New Owner should

handover the payment voucher, Form B of M.T.A.6 along with duly completed Form C of M.T.A.8 with all support documents to Department of Motor Traffic.

Main office at Colombo (priority service)

Relevant District office (normal service)

Step 7: New Owner should obtain a receipt Form CMT 52 Main office at Colombo (priority service)

Step 8: The new owner should retain Form B1 of M.T.A.6 and Form C1 of M.T.A.8

Step 9: When relevant documents are found to be accurate, Department issues the transferred Certificate of Registration.

Note: If relevant documents submitted by new owner are found inaccurate:Reject Request for Transfer and the New Owner should Re-submit all relevant documents.

Eligibility: Anyone who holds all the relevant support documents are eligible to obtain this service. Mostly the signatures and the previous registration documents should be accurate.

Note: Any applicant who is not able to meet with above conditions will be considered disqualified from obtaining the service.

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Obtaining a National Identity Card (NIC) for the first time

Question: Please let me know the procedure to get the National Identity Card (NIC) for the first time.

- Saduni,
sent by email

Answer: Eligibility criteria to apply for an ID for the first time;

Should be a citizen of Sri Lanka
Should be attained 16 years of age

Obtaining an Application

From the Grama Niladhari of the applicant’s residential area;
From the Estate superintendant (if the applicant resides in an estate);

From the School Principal or the ‘Parivenadhipathi’ of the respective Pirivena in the case of school applications

Completed application along with the relevant documents should be handed over to the above respective officers as appropriate. Necessary documents to be submitted to obtain an ID for the first time:

Duly completed RPD Form 1

Applicants under 50 years of age should compulsorily submit the Birth Certificate (BC) or the Probable Age

Certificate issued by the Additional District Registrar in order to obtain an ID card.

The Department considers July 1 of the respective year as the date of birth in respect of the applicants who submit probable age certificates.

Applicants over 50 years of age and do not possess the birth certificate or the probable age certificate,

Could submit two or more following alternative documents along with the results of search of registers and an Affidavit to confirm the age.

School leaving certificate

Certificate of Baptism

Copies of Birth certificates of children of the applicant, (if the date of birth of the applicant indicated )

Extract of the birth certificate of the applicant

Citizenship certificate of Sri Lanka (if the date of birth indicated)
Estate leaving certificate (if the date of birth indicated)
Certified copies of relevant pages of the Passport

Registration card issued by the Estate Superintendent
Horoscope (if available)

Applicants born in a foreign country should submit the citizenship certificates issued by the Department of Immigration and Emigration of Sri Lanka.

Women applicants, who wish to include husband’s family name in the ID card need to submit the original and a copy of the marriage certificate.

Five colour photographs of the size of 1 ?” X ?”

Stamp fees

Stamps to a value of Rs. 3 for the applicants under 17 years of age.
Stamps to a value of Rs. 13 for the applicants over 17 years of age.

Applicants, who wish to include their occupation/designation in the ID card, should submit a service certificate obtained during the last three months.

Professionals also need to submit documentary evidence, in case if they wish to include their profession in the ID card. (I.e. Engineers, Doctors, Accountants, Lawyers should submit relevant Degree certificates).

In case of the businessmen, they need to submit a certified copy of the Business Registration certificate.

Procedure to confirm the priest status of applicants-

Buddhist cleric should submit the ‘Certificate of Ordain’ or ‘Upasampada Certificate’ issued by the Buddhist Affairs Department.

Dasasil Matha should submit the registration certificate issued by the Department of Buddhist Affairs

Islamic priest should submit the certificate issued by the Department of Islamic Religious Affairs

Hindu priest should submit the certificate issued by the Department of Hindu Religious Affairs

Catholic priest should submit certificate issued by the head of relevant Catholic religious chapters