Legal Aid Commission

MEDIATION VS LITIGATION

In 2013, the 74 Legal Aid Centres of the Legal Aid Commission provided legal advice and legal representation to over 50,000 indigent litigants islandwide from Jaffna to Hambantota.

This indicates the litigious nature of the present Sri Lankan society. Adversarial litigation often resulting in aggravated conflicts is not conducive to peace and development in Sri Lanka.

One of the contributory factors for our protracted destructive national conflict is the adversarial psyche created by a courts systems imposed on us by colonial masters.

The present court system is burdensome to the poor making constitutional aphorism that all are equal before the law and entitled to equal protection of law mere meaningless rhetoric.

Our judicial and legal leaders from Sir Ponnambalam Ramanadan in early 1900s up to the present day leaders have spoken of Law’s delays and promised to take corrective action. Law’s delays burden the poor more than the rich and often the rich uses courts with delayed justice as an instrument of oppression. Was Sri Lankan Society always litigious?

The answer is no. Until the imposition of the adversarial court system on the recommendations of Colebrook Cameron Commission in 1833, the dispute resolution process in Sri Lanka was mediation based, except in capital offences like murder and treason. The Gam Sabha or the village council consisting of elders and village religious leaders resolved village disputes amicably through discussions, negotiations and the use of hallowed traditions.

Dr.Christy Weeramantri, respected international jurist has highlighted the role of the Gam Sabha in village governance of our country. Gam Sabha represented the moral consciousness of the community and created a voluntary duty based society. Dispute mediation was an important part of its traditional functions.

The British Colonial rulers who wanted to replace the mediation system with commerce friendly adjudication introduced the courts system where English was the medium of judicial process. They also introduced laws such as the Waste Lands Ordinance and Crown Land Ordinance and called upon the Kandyan peasantry to prove title to their traditional homelands. The poor peasantry failed due to lack of deeds and the rulers confiscated the land and virtually gifted them to coffee and tea planters. Kandyan peasantry continues to be the most deprived segment of Sri Lankan society.

Mediation resulting in win-win solution to disputes even though currently popularized by the Harvard Negotiation Project was first expounded 2550 years ago by the Buddha in stanza 201 of Dhammapada. He pronounced victory breeds hatred. The defeated live in pain.

Happily the peaceful live, giving up both victory and defeat. Adjudication in courts produce winners and losers perpetrating continued hatred and ill will. It can be compared to war where ultimately no one really wins. Sri Lanka has made an effort to restore mediation as a dispute resolution mechanism. The Mediation Act No.72 of 1988 and subsequent amendments are important steps. The Alternative Disputes Resolution Institute has trained 5000 Grama Niladharies in mediation skills and basic humanitarian law with the support of Asia Foundation.

Enthusiastic response from village communities indicate mediation culture could be reawakened in our country.

Legal Aid Commission

Questions and Answers

Birth registration

Question : My servant's birth has not been Registered. Can I register her Birth. Please advice me.

- Ganga, Homagama

Answer: You can register her birth. It is a legal requirement to register her birth. If you have evidence to prove her name , date of birth and her residence you can register her birth.

One of the following documents which includes the date and place of birth of the subject (the person concerned)

a. Hospital birth report or a certified copy of it.
b. Grama Niladhari report or a certified copy of it.
c. Estate birth report or a certified copy of it.
d. A copy of the midwife register of births.
In the absence of the documents stated in above (1), one of the following documents may be acceptable.

a. Horoscope or the record of the time of the birth which has been prepared on a proximate date after the date, on which the birth occurred.

b. Health Progress Card.
c. Certificate of baptism.
d. A certified copy of the admission register of the student admission to the school for the first time.
e. Students Record Sheet.
f. Letters from the homes
g. Affidavits

If none of these documents could be forwarded, a declaration containing birth particulars and an affidavit from the declarant should be produced. The application should be made in the declaration form of Registration B 6

If you do not have any of the above documents, you can apply for a probable age certificate. If you need any assistance in this regard, please call over at our head office situated at No.129, Hulftsdorp Street, High Court Complex, Colombo12.

Job Agreements

Question : I came to know that Sri Lanka Bureau of Foreign Employment (SLBFE) wants all those leaving for overseas jobs to sign a Job Agreement in order to get them registered with the Bureau prior to their departure. What kind of information does it contain? Please advice me.

- Kalyani, Horana

Answer: If you are a male worker, domestic worker for non Middle Eastern countries or a skilled female worker you should sign an agreement with the local recruitment agent. Domestic workers leaving to Middle Eastern countries must sign an agreement at the Embassy of that particular country.

The following signatures and endorsements should be available on the agreement.

If recruitment is done by an agent:

1. Signature of employer
2. Signature of foreign agent
3. Signature of the Embassy / Consulate official
4. Signature of local agent
5. Signature of housemaid

If you are going abroad through a visa sent by a friend or a relative:

1. Signature of the employer
2. Signature of Embassy / Consulate official
3. Signature of Housemaid

You can use the following guidelines in the agreement:

1. Wages
2. Salary deductions
3. Rest days
4. Annual and casual leave
5. Medical benefits
6. Duties
7. Welfare
8. Termination of contract
9. Dispute settlement
10. Transfer of employment
11. Repatriation
12. Airfare cost

Licence for foreign employment agency

Question : Please let me know how can I obtain a foreign employment agency licence to our proposed office.

Please let me know the procedure.

- Mohomad, Kalutara

Answer : After fulfilling the following requirements, you can start a foreign employment agency in Sri Lanka. To obtain a foreign employment agency licence, you should have an office which;

• Is situated in an easily accessible place where public transport is available.
• Have a floor area of at least 500 square feet.

• Have telephones with IDD facilities, fax, computers, databases, type writers, photocopiers & trade testing facilities.

You can then apply for the licence by submitting the following documents:

• Business Registration Certificate or certified copy of Form 48 & Articles and Memorandums (If registered under the companies act)

• Layout plan of the office and the lease agreement or deed of the premises.
• Affidavits regarding citizenship of the partners of the business / company.

• Two recent testimonials in support of the character and reputability of the person who is in charge of the foreign employment agency. One of these should be from the local Grama Niladhari of the area where he resides confirming that the person who is applying for the license has been living in that area.

• A bank guarantee of a commercial bank issued on behalf of you or your agency.

• You should also furnish the following documents of yourself and the other partners or Directors of the agency:

- Birth Certificate(s)
- Personal bio-data(s)
- Photocopies of their National Identity Card(s) or Passport
- Police clearance reports from the nearest police station
- A passport sized photograph of the officer in charge of the agency

After the above documents have been submitted, a team from the SLBFE would visit and inspect the premises and check the authenticity of the documents before granting them the approval for the licence.

The licence which you have obtained would be valid only for a period of one year from the date of issue.

Renewing a Licence

Question : Is it a legal requirement to renew the agency licence. Please let me know how I renew the agency license.

- Nanadapala, Horowpatana

Answer : You can renew your agency licence by submitting the completed application form available at the Sri Lanka Bureau of Foreign Employment (SLBFE).

You must remember to submit the renewal application 30 days before the licence expires and the SLBFE would then evaluate your past performances, inspect your office, equipment, records and grant approval for the renewal of the license.

If you wish to shift your recruiting agency to a new location, you should obtain the approval of the Licence Division of the SLBFE by submitting and application along with the following documents:

•Location of the new office
•Proof of legal occupancy of such premises
•Revised business registration certificate with the details of the new premises

Death Certificate

Question : If a person is missing for a period of six years is it compulsory to go to court to get his death certificate?

- Sent by email

Answer : No. It is not necessary to go to courts to get the death certificate of the person. A next of kin of such person can apply for a death certificate without going to courts. A next of kin of such person has to inform the details about the missing person to the police and the Grama Niladari in the area and prepare the application mentioned below and hand over it to the Registrar-General or the District Registrar of Births and Deaths of the District in which such missing person was last resident or had his permanent residence.

Section 2 of the Registration of Death (Temporary Provisions) Act, No 19 of 2010 states as follows.

(1) Where any person is reported missing and he has not been heard of for a period exceeding one year by those who would naturally have heard of him, had he been alive and his disappearance is attributable to any terrorist or subversive activity or civil commotion which has taken place within Sri Lanka, a next of kin of such person if he verily believes such person to be dead, may apply in the manner hereinafter provided, to register the death of such person under the provisions of the Births and Deaths Registration Act and to have issued to him, a Certificate of Death in respect of such person.

Every application under this section shall be substantially in the Form specified in the Schedule to this Act and shall be forwarded to the Registrar-General or the District Registrar of Births and Deaths of the District in which such missing person was last resident or had his permanent residence.

SCHEDULE (Sections 2, 8 and 10)

APPLICATION FOR REGISTRATION OF DEATH OF A MISSING PERSON

1. Full Name of missing person :
2. Sex and race ;
3. Age :
4. Date of Death (approximately) :
5. Address of last known residence:
6. Address of permanent residence :
7. Rank or profession :
8. Applicant’s full name and residence :
9. Applicant’s relationship to missing person :

I....................... of ................................... do hereby state that the said................................................................... (name of the person missing).................................. has been missing for a period of over one year, and I verily believe that the said.............................................................. is dead.

I therefore request that the death be registered under the Births and Deaths Registration Act (Chapter 110) and a Certificate of Death in respect of such death be issued to me.

........................................

Signature of Applicant

Date :.....................................