Legal aid commission

Introduction-Draft Bill on protection of IDPs
 

 The recognition of UN Guiding Principles of IDPs in 2002 as Government Policy was distinct step towards reducing the ad-hoc approach towards dealing with the humanitarian challenges posed by displacement.

Internal and external involuntary displacement of persons has been a dominant humanitarian challenge in Sri Lanka. Persons who leave a country for fear of insecurity due to armed conflict, generalised violence or violations of human rights and seek asylum in other countries are considered refugees under international law. The United Nations High Commissioner’s (Office) had been vested with the protection and providing assistance to refugees and finding them durable solutions. The 1951 UN Statute on the Status of Refugee governs the international treaty law on refugees.

On the other hand, Involuntary Displacement of Persons (IDPs) from homes and hearths could be due to man made or natural disasters and considered vulnerable persons whose basic human rights to have a safe residence had been violated.

The initiative of the Human Rights Commission of Sri Lanka to present a draft law on protection of the rights of the IDPs for public discussion and comments (idpc@sltnet.lk) should receive the full attention of all the stakeholders.

During the past 25 years, at least until the 2002 adoption of the National Policy Framework on Resettlement Re-habilitation and Reconstruction (NPFRRR) there was neither a legislative protection on the rights of the IDPs nor a policy framework based on the Guiding Principles on Displacement developed by the UN Secretary General’s Special Representations Francis Deng and adopted by the UN General Assembly in 1998.

The recognition of UN Guiding Principles of IDPs in 2002 as Government Policy was distinct step towards reducing the ad-hoc approach towards dealing with the humanitarian challenges posed by displacement.

However, absence of specific binding legislation to protect human rights of IDPs saw the continued ad-hoc and arbitrary treatment of IDPs.

The Draft Bill if adopted by the legislature would be a distinct step towards safeguarding the rights of the unfortunate portion of citizens who are displaced for no fault of their own.

The preamble to the Draft Law states “an Act to provide for the establishment of an internally displaced persons authority: to set out the powers and functions of such authority and to provide protection from arbitrary eviction and displacement, and to provide for the protection of persons under risk of displacement and internally displaced persons, and for matters connected therewith or incidental thereto”.

The establishment of an IDP authority bringing together officials already involved in Rehabilitation Resettlement authorities and the Chairman of the Welfare Benefits Board and Director-General of Disaster Management Center along with experts appointed by the Minister in consultation with the Constitutional Council (not yet in existence) is intended to safeguard the non-political and purely humanitarian nature of the challenges posed by the IDPs Politicising the IDP and refugee issues need to be avoided at any cost.

The Drat Law also establishes an office of Relief Ombudsman vested with authority to prevent discrimination in IDP treatment. The Sri Lankan experience with the concept of Ombudsman whether statutory or voluntary is not an extremely successful one.

The reason for limited success of the concept of ombudsman in Sri Lanka is due to inherent limitation of the authority of Ombudsman only to make recommendations which are not executed.

The Draft Bill on IDPs which is a first in the Asian region should be extensively discussed.

S.S. Wijeratne

Mediation and law training for Kantalai Grama Niladharies

As part of the Trincomalee District training programme in Humanitarian Law and Mediation Skills, the Alternative Dispute Resolution Institute (ADRI) jointly with the Legal Aid Commission (LAC) will conduct a legal and mediation training programme from August 22 to 24 at the Divisional Secretariat Office, Kantalai.

The grass root legal empowerment programme is supported by the United Nations High Commissioner for Refugees (UNHCR).

The ADRI/LAC has already trained nearly 8,000 Grama Niladharies out of 14,016 Grama Niladharies in the island commencing in 2005 with the tsunami affected areas in the country.

The training programme is conducted by experts in legal and mediation skills and includes the distribution of important Humanitarian Laws such as the Mediation Acts of 1988 and 2003, the Domestic Violence Act, ICCPR Act and UN Guiding Principles on internally displaced persons and other specially prepared documentation.

The ADRI/LAC training programme intends to train all the Grama Niladharies by end of 2009. DIAL 1919 for information related to over 1,000 services of 58 key Government organisations

Voet Inn AGM

The Annual General Meeting of Voet Inn Attorneys-at-Law will be held at the Sea-Nor Seafood Restaurant at 6.30 p.m. on August 30. All Attorneys-at-Law who are past Voet Inners are cordially invited.

Disclaimer

The answers to questions are the legal views of individual lawyers and the Legal Aid Commission only compiles them for the Daily News Legal Aid Page. Your questions should be addressed to - Daily News Legal Aid Page, Chairman, Legal Aid Commission No. 129, Hulftsdorp Street Colombo 12.

Email:legalaid.dailynews@yahoo.com

Website:www.lawaid.org

Questions and Answers

Re-termination of services within contract period

Question: I am an Executive working at a private owned Company. My contract is for a period of three years and it will come to an end on 01.11.2009. Nevertheless, the Board has taken a decision to terminate my services with effect from 01.09.2008 on the ground of insubordination.

I have always conducted myself in an extremely courteous manner and had never refused to carry out any duties cast upon me. In this background, is it possible to terminate my services in this absurd manner? I need your advice in this matter.

G. Rodrigo Kaduwela

Answer: If you have not been warned previously or in any manner called for any explanations, it seems that this is a false allegation used to terminate your services. The remedy available to you is to file an application in the Labour Tribunal.

The Employer cannot arbitrarily terminate the services without a valid reason. In any event if your services are terminated on disciplinary grounds, the Employer should have had an inquiry and only after giving you an opportunity to defend yourself, they can terminate your services.

Acquisition of land by the State

Question: My land was acquired by the State in 2001, but upto date no compensation has been paid. The land is just left as it was and had not been utilised for any purpose. I wrote to the Divisional Secretary, the Minister and to the President. However, I still have not received any response from them. Please advice me.

S. Samarasinghe Sent by email.

Answer: Under Section 39 A, a land which is acquired by the State but has not been used for any public purpose, the Minister can divest such land to the original owner, provided that -
(1) No compensation has been paid.
(2) Land not used for a public purpose.
(3) No improvements have been made.

Therefore, you can make a request to the Minister asking him to divest the land to you under Section 39A.

You have to give your consent in writing to take possession of the land once the divesting order is published in the Government Gazette. Illegal termination of services

Question: I am an employee working in a private Company.

I have been working in the said Company for the past six years.

I was not paid EPF and ETF. Last week I applied for one day’s leave (13.08.2008)

because I had an appointment with the doctor.

I went to work on 14.08.2008, but was not allowed to report for work. I asked the

Security Guard to allow me to speak to the Personnel Manager, but was not allowed.

Please advice me.

M. Jonathan, Wattala.

Answer: For non-payment of EPF and ETF you can make a complaint to the Commission of Labour.

From what you have stated, it is not clear whether your services were terminated on some other ground or whether you were served with a VOP (Vacation of Post Notice). In any event if you had properly applied for leave and it was approved, then there is no reason to issue you with a VOP.

In that case you can make an application to the Labour Tribunal within six months. Therefore, check whether VOP has been issued.

Since you are not informed of the reason and your services are terminated arbitrarily, you can make an application to the Labour Tribunal.

Institution of Proceedings under Section 66 Applications

Question: Can a Police Officer institute proceedings regarding a dispute under Section 66 Applications. Could you please advice me on this matter in detail. I also take this opportunity to thank you for the valuable service rendered to the public through your Legal Aid Page.

G. Peiris , Meegoda

Answer: Under Section 66 (1) proceedings may be instituted either

1. By the Police Officer inquiring into the dispute or,

2. By any party to such dispute.

In respect of 66 (1) information regarding the dispute has to be filed by the Police Officer, and in respect of section 66 (1) (b) any party to the dispute has to file and information by way of an affidavit.

In the case of Section 66 (1) (a) the Police Officer has to inform the parties to the dispute to enter into a bond for their appearance before the Primary Court on the day immediately succeeding the date of filling the information on which sitting of such Court are held. Further if necessary to preserve the peace the police officer is required to arrest the parties to the dispute and produce them forthwith before the Primary Court within whose jurisdiction the land is situated.

In the case of Section 66 (1) (b), the party tendering the affidavit has to set out the facts and relief sought and specify as respondents the names and addresses of the other parties to the dispute. In this situation the Court shall by its usual process or by registered post issue notice to the parties named, to appear in Court on the day specified in such notice such day being not later than two weeks on which the information was filed.

It is to be noted that there appears a difference between the procedure adopted under Section 62 of the Administration of Justice Law and Section 66 of the present law.

Under the earlier law the judge of the primary Court has to come to a finding that the breach of the peace is prevalent. But under the present law it is the police officer who has to determine that there is a breach of the peace.

Therefore, under the present law if the police officer has filed the information, the Judge assumes jurisdiction to inquire into the matter.

How to get copy of Death Certificate?

Question: I am a married woman with three children. My beloved disappeared twelve years ago. Before he went missing, he was working in the Private Sector. I lived without him for several years but he never returned.

I have now come to conclusion that he is dead. I need to get his Death Certificate for several purposes. My relations tell me that I will not be able to get his Death Certificate as his body could not be found. Please advice me how to obtain my husband’s Death Certificate?

M. Priyangika , Moneragala

Answer: According to No. 17 of Birth and Death Registration Ordinance 1956, if a person has died at home, hospital or suddenly, the normal procedure is the Grama Seva Niladhari, Medical Officer, or the Coroner, have the power to issue the Death Certificate.

However, in the case of disappeared persons, the Registrar-General’s Department had introduced a separate procedure to issue Death Certificates.

The Birth, Death Registration Temporary Act 2005 (No.17) states two circumstances of disappearances -

* If a person has disappeared in situations, such as, war or disputes or terrorist activities, the close relations can ask for the Death Certificate.

* If a person has disappeared due to natural disaster like tsunami, flood, earthquake, cyclone, the close relative can ask for the Death Certificate.

If your husband had disappeared on one of the above reasons you have the right to get the Death Certificate. You can go to the Divisional Secretary’s Office and get the relevant forms filled up and they will help you to obtain the Death Certificate.

Please note that this service has now been temporarily stopped. If your husband has disappeared due to any another reason which is does not fall within the above category, you have another relief to obtain the Death Certificate.

According to the Evidence Ordinance Section 108 states that when the man is alive or dead, it is proved that he has not been heard of more than one year, you can ask for the Death Certificate after filling a case in the District Court.

If you need further information you can visit one of our Legal Aid Centres and get free advice in this matter.

Provident Fund matter

Question: I have heard of the valuable service you render the public through the Legal Aid Page of the Ceylon Daily News. I shall be much thankful to you if you will kindly favour me with a reply to the following: I am receiving maintenance from my husband on a Court order.

He is working in the Road Development Authority. He is to retire from service in two years’ time. He will not receive any pension. He will get a lump sum as Provident Fund.

Please let me know, as his legal wife, whether I am entitled to receive a part of his Provident Fund.

Name no disclosed Batticaloa.

Answer: We referred your matter to the Superintendent, EPF Department. He stated that you are not entitled to receive your husband’s Provident Fund after he retires. You can obtain his Provident Fund after his death only if he has nominated you.

Otherwise, under the common law you are entitled to half share of your husband’s Provident Fund and the other half will go to your children. If you need any clarification you can call the Superintendent, EPF Department, Central Bank of Sri Lanka, Janadhipathi Mawatha, 2nd Floor, ‘Ceylinco House’ Colombo 1. Tel No. 2477207.

Features of a Bill in Parliament

Question: As a layman I would like to know the following:

(a) What is the first step in the legislative process?

(b) Should notice be given to the public before a Bill is brought before Parliament?

(c) What do you mean by - “The first reading”, “The second reading” and “The third

reading” of the Bill in Parliament?

Your answer to the above questions would be greatly appreciated.

Denzil De SOYSA, Kalubowila.

Answer: (a) The first step in the legislative process is the publication of the Bill in the Government Gazette.

(b) Yes - notice has to be given to the public of the intention to bring the Bill before Parliament for its passage into law.

(c) At least seven days after the publication in the Gazette the Bill may be placed in the order paper of Parliament and on a day so appointed it would be presented by the relevant Minister.

Thereafter, the title of the Bill would be read out by the Secretary-General of Parliament. This is deemed to be “The first reading” of the Bill. The first reading is a purely formal introduction. However, a vote may be taken on it if a Member so requests.

“The second reading” of the Bill is the main debate where members express there views on the subject. The second reading should encompass wide ranging discussions on the Principles and scope of the Bill.

A debate on the second reading would usually last one day but may extend in some instances to many days. The Minister in charge of the Bill should introduce the Bill and wind up the debate at the end of the second reading. During the second reading amendments may be proposed.

“The third reading” of a Bill is for the approval of the overall contents of the Bill with the Committee Stage amendments and at this stage only verbal or drafting amendments and numbering of section etc. may be done.

It is usual for the Minister, at the third reading, to seek the approval of the House to make consequential amendments. Bills requiring passage by a two third majority should be so passed even during the third reading. Grammatical or typographical errors may be corrected at any time before the certification by the Speaker.