Introduction:

UNHCR in Sri Lanka

S.S. Wijeratne

The United Nations High Commissioner for Refugees, Antonio Guterres is scheduled to visit Sri Lanka on August 25 at the invitation of the Government. Even though the UNHCR at the request of the Government established a presence in Sri Lanka on 30, September 1987 - for 19 years no High Commissioner visited Sri Lanka to add impetus to the UNHCR's humanitarian programmes.

High Commissioner Guterres who was elected to the prestigious post by the UN General Assembly from June 15, 2005 was the Prime Minister of Portugal from 1996 to 2002. He was the President of the European Union in 2002 and was the Vice President and President of Socialist International from 1992 to 2005.

Fifty years ago, the Statute of the Office of the United Nations High Commissioner for Refugees (UNHCR) was adopted by the General Assembly of the United Nations on 14, December 1950.

The High Commissioner was mandated to provide international protectional and find durable solutions to millions of refugees who fled their countries during the Second World War.

The work of the High Commissioner was ordained to be entirely non political and purely humanitarian and social in character. The office was expected to complete its mandate in five years but this became impossible as refugee outflows continued unabated.

Even after 56 years and after ten High Commissioners, the UNHCR is dealing with 20.8 million refugees and persons of concern in over 100 countries.

Like in many other civilised societies, Abhaya or asylum as a practice was present in ancient Sri Lanka. Justice A.R.B. Amarasinghe in his seminal book.

"The Legal Heritage of Sri Lanka" cites the Noccipotana Pilar Inscription which decreed that" those who have come to asylum shall not be arrested, should there be any undeserving of protection, they shall be arrested after they have been made to quit the village.

The practice was somewhat different from that of international asylum, but nevertheless, many of the essential ingredients of modern asylum concept were found in the Attani decrees.

The International Legal basis for the UNHCR to assist refugees is contained in the 1950 Statute of the UN High Commissioner for Refugees and 1951 Convention on the Status of refugees and its 1968 protocol.

Additionally, Regional Conventions have been adopted by the Organisation of African Union by the OAU Convention of 1969 on Refugees and the South American countries with the acceptance of Cartegena Declaration on Refugees of November 1999.

The UNHCR is also vested with the monitoring of the 1973 UN Convention for the reduction of cases of statelessness.

From the very first years of its establishment the Organization has helped the Government on the recovery and resettlement of refugees from India in the late 1980's and thereafter providing some 800,000 Tamils, Muslims and Sinhalese who were internally displaced due to the armed conflict.

The numbers were reduced gradually until the tsunami tragedy in 2004 increased the numbers again.

The problems of asylum seekers avoiding the neighbouring countries and flying to distant countries, the legal liability of airlines, the responsibility for rejected asylum seekers, were some of the legal issues that were addressed by the European Consultations.

Unceasing influx of asylum seekers made many European countries and the European Union to overhaul their asylum laws and adopt very stringent criteria to prevent economic migrants to present at their borders with unfounded claims for refugee status.

Sri Lanka's role in these discussions was minimal and opportunities to play a pro-active role in these vital discussions were missed.

The UNHCR as a neutral humanitarian agency has helped to lessen the pain of displacement whether due to man made or natural disasters. May her mission be completed sooner than projected.

-------------

Questions and answers

Alternate option for bed ridden pensioner to obtain his/her pension

Question: There is a move to introduce a new system of Pension payment through individual Bank Accounts which compel the pensioner to be personally present at the Bank and obtain his/her pension and that Joint Accounts are not permitted.

Please enlighten me as to how a pensioner who is bed ridden due to advanced age and unable to be present at the bank personally could draw his/her pension.

R.A.A. Dias, Battaramulla.

Answer

The Pensions Department has already advised the pensioners to open individual savings accounts in their name. This does not mean that joint accounts are not allowed. In special circumstances, such as your one, joint accounts are permitted.

If the pensioner has opened a joint account and if he/she is bed ridden or suffering from any serious sicknesses where he/she cannot travel, the other party could claim the pension from the Bank by submitting an affidavit to the Bank stating that he will not claim the pension after the pensioner's death and undertaking to inform the bank and the Pensions Department as soon as the pensioner's death occurs.

The Pensions Department proposes to distribute a circular to all pensioners in this regard in the near future.

Can a policy holder claim money paid before maturity of his policy?

Question: I was paying my life insurance premiums regularly every month till the Rep suggested that it could be paid directly from the Bank from my salary. I together with the Rep went to the Bank and he filled the necessary forms from his Company and handed it over to the Bank.

When it was not deducted for over two months I informed the Rep, but he told me not to worry as it was already paid and updated (slips system). I was shocked to receive a letter saying that my life insurance was not in force.

I called the Insurance Company and complained and asked them what had gone wrong since I had been continuously reminding the Rep and he kept telling not to worry.

Finally, the insurance Company called and apologized saying it was their fault as the Accountant has not put the code number. I was thoroughly disgusted and wrote to them asking them to return all what I had paid them but they have refused as the policy states only after three years a person is entitled to withdraw the policy if they are discontinuing it.

I never wanted to stop this but this is their fault and I am adamant to get my money which I have paid them. Please let me know if I am entitled to the total sum I have paid.

S. Seneviratne, Kotugoda.

Answer: It depends on the nature of the insurance policy you have agreed with the insurance company. Therefore, if the policy states that you can claim the money after three years, then you will have to comply with it.

Otherwise it will be a breach of the policy. All payments will be made according to the terms and conditions of the insurance policy you have entered into with the insurance company and you cannot now deviate with the same.

How to obtain registration certificate for brand new car?

Question: I have decided to buy a brand new car. Please let me know as to how I could attend to the registration formalities of my brand new car?

A. Rodrigo, Wattala.

Answer: Under the Motor Traffic Act you have to register a brand new car before it is put to use. Normally, the registration formalities is done by the company from where you bought the vehicle. If the registration formalities is not done by the company, you have to obtain a MT A2 Application from the Registrar of Motor Vehicles (RMV).

Thereafter, the same has to be duly completed where both parties have to sign the said document and hand over the same to the Registrar of Motor Vehicles with the following documents:-

(a) Photocopy of the your NIC

(b) Two licence size photographs of yourself certified by the Grama Seva Niladhari of your area or the photographs could be certified by an Authorised Officer of the company from where you bought the vehicle.

At the time of registration, a registration fee has to be paid depending on the brand and nature of the vehicle. Registration of the vehicle has to be done within one month from the date of purchase of the vehicle.

In case you decide to finance your vehicle, you have to obtain a MT A3 Application Form and submit the same duly completed to the Registrar of Motor Vehicles together with the same documents mentioned above.

How to obtain a duplicate driving licence

Question: I lost my Driving Licence but I remember by Licence Number. How can I get a duplicate Driving Licence. Please advise me.

H. Paul, Mahawewa.

Answer: You have to first go to the police station and make a compliant and get a certified copy of the complaint made.

You have to get a photocopy of you National Identity Card.

You have to get two Licence size photographs of yourself.

You have to duly fill the MT 42 Application Form.

After obtaining the abovementioned documents you have to submit these documents together with the duly completed MT 42 Application Form to the Motor Traffic Branch at Werahera at the following address:-

Motor Traffic Unit,

Werahera Branch,

Piliyandala Road,

Katuwawala,

Werahera,

Tel. No. 2545893.

If you are unable to go to the above mentioned address, you can submit these documents at the Divisional Secretariat. In the past the Motor Traffic Branch at Narahenpita had a 'One Day Service' but this service has now been temporarily stopped.

Public interest litigation

Question

In India I read and heard that there are many Public Interest Litigation cases. Are there any such cases in Sri Lanka?

S. Tharmarajah, Atchuvely.

Answer

Public Interest Litigation (PIL) may be defined as an action instituted by an individual or a social group for the enforcement of the constitutional or legal rights of the general public or an identifiable class of persons within the domain of Public Law.

Ordinarily, the courts would insist that the action is brought by a person who is, or is likely to be, personally affected by the alleged violation of his or her rights.

However, in the case of PIL, locus standi has been extended to persons or groups who may approach a Court of Law for redress for a class of persons, who, because of poverty, illiteracy, disability or other social or economic impediments are unable to enforce their rights. India is a country which has given a strong recognition this concept.

Article 38 of the Indian Constitution has commanded the state to strive to promote the welfare of the people by securing and protecting a social order in which social justice shall inform all institutions of their national life.

However in Sri Lanka PIL is taking place in a very limited manner. Our superior courts have yet to give a wider recognition to this concept.

How to claim shortfall on gratuity paid

Question.

I was first employed by the Colombo Ports Commission where I had put in over 10 years of service.

Thereafter, the Port Cargo Corporation and the Port Tally and Protective Services Corporation were established. After some time all these three - namely, the Colombo Port Commission, the Port Cargo Corporation and the Port Tally and Protective Services Corporation were taken over by the Ports Authority.

When the Ports Authority took over it undertook to recognize the past services of the employees and to pay all salary increments, gratuity and other dues enjoyed by the employees from their former employer.

The Port Cargo Corporation and the Port Tally and Protective Services Corporation are governed by the Corporation Rules & Regulations where no pension is payable whereas the employees of the Colombo Port Commission are entitled for pension.

Finally when I retired from my employment my gratuity was paid only from the date when the Ports Authority took over and the number of years of service which I had put in at the Colombo Port Commission was not taken into consideration.

However the other employees in the Port Cargo Corporation and the Port Tally & Protective Services Corporation were paid their full gratuity amount.

In the circumstances I feel a grave injustice has been done to me by not paying me the full gratuity amount which I was legally entitled to.

Please advise me as to how I could claim this shortfall on my gratuity?

J.A. Perera, Mattakkuliya.

Answer

According to your question, your Higher Authority has failed to pay the full amount of gratuity which you are entitled to .

Firstly, you have to make a complaint to the Higher Authority for the payment of the balance amount of gratuity. If your Higher Authority refuses to pay, then you can make a complaint to the Commissioner of Labour.

The Commissioner of Labour can file action in the Magistrate's Court against your Higher Authority if it fails to comply with his order.

Secondly, you can go to the Human Rights Commission and make a complaint for the reason that you have not been treated equally. If the HRC recommends any payment, your Higher Authority has to comply with it.

But if your Higher Authority does not obey the HRC recommendation, you can send a letter of demand to your Higher Authority through an Attorney-at-Law to implement the recommendation within 14 days from the date of receipt of the letter of demand.

If your Higher Authority is unable to comply with the said letter of demand you can file a Writ of Mandamus before the Court of Appeal within a reasonable period of time with the least possible delay.

The Legal Aid Commission and the Human Rights Commission have signed a MOU and as such the Legal Aid Commission, Human Rights Bureau has the power to file a case against your High Authority to implement the recommendation given by the HRC.

Therefore you could come to the Legal Aid Commission, Human Rights Bureau with the recommendation or the HRC will forward the recommendation for necessary action.

Is there any time bar to file a testamentary case?

Question

My father passed away in March this year leaving me as the sole executor of his Last Will. I am the only child in the family. My mother died over 10 years ago. Land to an extent of approximately 2 acres was in possession at the time of his demise.

1. What is the time bar to file a testamentary case?

2. What are the documents required to do so?

Please advise me.

Ranganath Kumara, Kottawa.

Answer

1. There is no time bar. But you have to file the testamentary case within a reasonable time. If not special permission has to be obtained by the District Court.

2. Last Will, Affidavit, Death Certificate, Inventory of the Deceased's Estate and Bank Account of the Deceased together with an identity to prove that you are the Executor named in the Last Will.

------------

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.

Send in your questions to:- The Daily News Legal Aid Page, Chairman, Legal Aid Commission, 129, Hulftsdorp Street, Colombo 12.

Email: legalaid.dailynews@yahoo.com

Note

In future we hope to separate our Legal Aid Page to different columns such as -

. Problems regarding Pension.

. Land disputes, Lease Agreement, etc.

. Violence against women & children and disputes among the family.

. Registration of Deeds.

. Registration of Motor Vehicles.

. Insurance & Tax matters.

. Problems regarding obtaining of ID Cards, Birth Certificates, Death Certificates, etc.

. Prison matters.

. Mediation and settling of minor problems.

. Disputes regarding Immigration & Emigration.

So, please do write to us and we will be glad to assist you in the matter. We try to answer as much questions as possible.

However, if we have missed any of your questions, kindly inform us by mail or email. Please make your questions short. If you wish to visit us, you could do so on weekdays between 9.00 a.m. and 4.00 p.m.

----------------

Legal Aid Commission Centers in Sri Lanka

No. Centre Officer-in-charge Address / Tp

01 LAC Head Justice Hector Yapa Legal Aid Commission quarters Director General No. 129, Hulftsdorp, High Court Complex, Ms Nelum Gamage Colombo 12. Director / Consultant 2433618, 5335281

02 Tsunami Ms M. S. M. M. Piyumi Kumari 211, Superior Court Regional Centre A.A.L. - Coordinator Complex, Hulftsdorp, Colombo12.034-5628860

03 Welikada Ms Thushari Karunasinghe Welikada Prison, Prison A.A.L. - Coordinator Welikada. 5335329

New centres established by LAC in 2006

04 Bandarawela Ms Anoma Atalugama Court Complex, A.A.L. - Legal Officer Bandarawela. 057-2224733 057-5621048

05 Matale Jaliya Gooneratne Court Complex, A.A.L. - Legal Officer Matale. 071-4447151

06 Avissawella Ms Hiranthi Liyanage Court Complex, A.A.L. - Legal Officer Avissawella. 060-2362219

07 Ratnapura Ms R. M. I. R. Rajapakshe Court Complex, A.A.L. - Director Ratnapura 045-2226899

08 Negombo Ms Swarna Perera Court Complex, A.A.L. - Director Negombo. 031-2222221

09 Kalutara Ms Pavithra Sajeevani Court Complex, Coordinator / Legal Officer Kalutara 091-5624693

10 Gampaha Vass Gunawardena No. 12, Sanasa Director Complex, Gampaha

11 Polonnaruwa Deva Kularatne Director, Attorney at Law Legal Officer Court Complex, Polonnaruwa.

12 Anuradhapura D. P. B. Mahadiulwewa Court Complex, A.A.L. - Regional Director Anuradhapura 025-2224465

13 Kandy U. R. N. Ranathunga New Court Complex, A.A.L. - Regional Director Getambe, Peradeniya 081-2388978

14 Kurunegala Mr. D. V. Senevirathne Court Complex, A.A.L. - Regional Director Kurunegala 037-2229641

15 Galle W. A. Palihapitiya Court Complex, A.A.L. Fort, Galle 091-2226124

16 Hambantota Ms Lakshmi Wijenayaka Chief Ministers A.A.L. - Regional Director Office Complex, Hambantota. 047-2221092

17 Nuwara Eliya Ms Thamara Damayanthi Court Complex, A.A.L. - Legal Officer Nuwara Eliya 052-2235260

18 Moneragala Ms Shanthi Jayasingha Court Complex, A.A.L. - Legal Officer Moneragala 055-2276191

19 Ampara Ms Chanchala Dhanushi Court Complex, A.A.L. - Legal Officer Ampara. 063-2223496

20 Kegalle Ms S. Senanayaka Court Complex, A.A.L. - Legal Officer Kegalle. 035-223179

21 Chilaw Pradeep Shanthappriya Court Complex, A.A.L. - Legal Officer Chilaw. 032-5672457

22 Akkaraipattu A. C. Rizwan District Court Complex Coordinator / AAL Akkaraipattu

23 Balapitiya Sanjaya Wijesinghe No. 618, Walagedara, Coordinator / AAL Balapitiya. 091-2255753

24 Matara Ms Rajika Prasadini No. 38, Coordinator / AAL Lawyers Complex, Fort, Matara. 041-2233815

25 Vavuniya M. Sittampalam Court Complex, A.A.L. - Director Vavuniya. 024-2221899

26 Trincomalee K. Sivapalan Court Complex, Coordinator / AAL Trincomalee. 026-222293

27 Kalmunai M. S. Kariapper Court Complex, Coordinator / AAL Kalmunai 067-2223710

28 Jaffna Ms S. Abhimanasingham District Court Complex, A.A.L. - Director Jaffna.

29 Batticaloa K. Narayanpille 300/1 A, Bar Road, Coordinator / AAL Batticaloa. 065-2223567