Introduction - Internally Displaced Persons'

MANY in Sri Lanka still confuse the international legal terms 'Refugees and Internally Displaced Persons'.

A few years ago, the then Government established a Ministry titled Ministry of Refugee Resettlement and Rehabilitation' which was a misnomer. According to reports, Sri Lanka has less than 15 refugees, mostly from Iraq and Afghanistan.

Sri Lanka does not give asylum to refugees who flee their countries for fear of persecution of generalized violence in their home countries.

Sri Lanka has yet to sign the 1951 UN Convention on refugees despite its ratification by 150 countries.

The signing of this humanitarian convention is considered an indicator of the extent of commitment of a country to respect international humanitarian and human rights standards.

In the Convention a Refugee, is a person who escapes his country of origin for fear of persecution because of his race, religion, nationality, membership of a particular social group or political opinion. Victims of generalized violence and human rights violations are also included as refugees.

On the other hand, Internally Displaced Persons are those Sri Lankans who are displaced from their homes involuntarily due to man- made or natural disasters. The responsibility to protect and assist refugees is with UNHCR and the countries of asylum.

On the other hand protection and providing assistance to internally displaced persons is that of the National Governments, International Humanitarian Agencies like the UNHCR or ICRC might help but they have no exclusive mandate to do that.

While the major portion of the IDPs in Sri Lanka are the unfortunate result of the ongoing conflict since 1983.

According to the UNHCR, the recent escalation has displaced Sinhalese, Tamils and Muslims. They are eking out an existence in temporary shelters, with nearly 80% being vulnerable women and children. They are IDPs produced by a man-made disaster.

Additionally, over 500,000 were displaced by the 2004 tsunami some of whom are still in temporary shelters while majority have been resettled.

To make matters worse the reason spate of land slides has destroyed dwellings in the up country and thousands have been displaced.

Sri Lanka fortunately has a brand new Disaster management Act and the Ministry of Disaster management but we need legislation regarding the protection of the rights of the IDPs.

Victims of disasters, war related or natural disaster related are all Sri Lankan citizens and it is our duty to protect them.

Sri Lanka is a developing country with little additional resources and needs genuine international help. IDPs have a right to receive tangible help from affluent countries not only human rights rhetoric. At least that is what the UN Guiding Principles on IDPs say.

- S.S. Wijeratne, Former UNHCR Country Representative in Philippines, Bangladesh and Afghanistan

Developmental legal desk 7 - Elders' Desk

Nearly 2.3 million of Sri Lanka's population are senior citizens who have surpassed 60 years of age. This number constitutes about 1/5 of the total voting population of Sri Lanka.

The elderly who have gained wide knowledge and immense experience is the greatest resource of a country. It can be used wisely towards the development of the country.

The Protection of Rights of Elders Act No. 9 of 2000 enacted with all party support was the first attempt to recognise the challenges forced by senior citizens.

The Law however, established the National Council of Elders to organize over 6500 village elders societies and provide them with service resources to develop self employment programmes.

Village based elders societies could be considered a success as they have generated programmes on their own.

However, an organisation of elder's societies has to be restructured so that the wealth, experience and talent lying unused with elders are harnessed for the development of our country.

As elders respect human values more than the globalized middle aged people, they should be harnessed as teachers in pre-schools like in many other countries.

The Elders' Desk of the Legal Aid Commission was set up mainly for the following purposes:-

* To provide free legal advice regarding maintenance, accident claims, loss of property, pension and fundamental rights of destitute elders.

* To lead counselling service entering 'Elders' Homes' and 'Day Centers' in view of educating Grama Niladharis, Social Service Officers and schoolchildren on elders' rights and elders law.

* To launch joint programmes in collaboration with the National Secretariat for elders.

* To help win the rights guaranteed to elders under the Protection of Elders Rights Act No. 9 of 2000.

The Head of the Elders' Desk is Pradeepa Nilmini, Attorney-at-Law who co-ordinates with the National Secretariat for Elders and conducts awareness programmes.

She is also responsible for advising destitute elders regarding their rights who are subjected to abuse and violence purely due to their old age.

Questions and answers

Deaf ears on transfer approval of Health Ministry

QUESTION: My wife is a doctor attached to a Government hospital in the Uva Province. I am an Engineer employed in a private company close to Avissawella. My wife made a special appeal to the Ministry of Health for a transfer on medical grounds. Fortunately she was offered a transfer to a hospital closer to my working place.

The circular for special appeal transfer list approved by the Secretary to the Ministry was issued on November 7, 2006.

In that circular, hospital authorities have been granted the approval to transfer all doctors who have been transferred under special appeal list - 2006 September with immediate effect.

Now two and half months over, but my wife has not yet been released. Eventhough she requested on so many occasions for her release from the hospital authorities, it seems that the head of hospital purposely ignores the approval of her transfer approved by the Secretary to the Ministry. Is this a violation of fundamental rights? Please let us know as to what we should do?

Kapila Ekanayake, Aruggammana.

ANSWER: Article 12 (1) of the Constitution clearly states that "all persons are equal before the law and are entitled to the equal protection of the law and no one shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds. So it is very clear that Article 12 (1) of the Constitution has been violated.

Further, you can also consider filing a Writ of Mandamus before the Court of Appeal to implememnt such an order within a reasonable time period. It is best for you to consult a lawyer to decide whether a FR application should be filed or a Writ of Mandamus should be filed.

Documents to be produced for the change of possession of a motor vehicle

QUESTION: Could you please let me know through the Daily News Legal Aid Page as to what document should be produced for the change of possession of a motor vehicle?

R. T. Ousmand, Malabe.

ANSWER: The documents to be produced are:

01. Notice of the change of possession, MTA6 (Form A) and the application MTA8 (Form C).

02. Two photographs of the transferee 3.5x2.5 cm one of the photographs should be certified by the Grama Niladhari of the area concerned / Justice of Peace / An Executive Officer.

03. Revenue Licence of the year of transfer and a photocopy of same if a notice of non-user has been given, a certificate issued by the Licensing Authority.

04. A certificate issued by this Department to the effect that Sri Tax has been paid, (only for the first transfer in respect of 1 Sri to 15 Sri cars and 31 Sri, 32 Sri vehicles).

05. Certificate of the Registration of vehicle.

06. If a mortgage / absolute ownership / lease has been registered, a letter from the relevant institute for its cancellation.

07. (i) If the registered owner or the new owner is a limited company, signature on MTA forms to be placed with the embossed seal. If the embossed seal is not available, a letter issued by that company to prove it, in a letter head.

(ii) Certificate of Business Registration (with a photocopy).

08. If the vehicle belongs to a partnership company, a letter of consent from the other partners and the Certificate of Business Registration (with a photocopy).

09. If conditions are given in the Certificate of Registration, a consent letter from the relevant institute to cancel them.

10. On occasions when imports have been made free of customs duty, a receipt to the effect that customs duty is paid - a letter from the relevant institutions to prove that there is no objection for the transfer of the vehicle.

11. A Special Transfer (Sales) Tax of Rs. 3,000 has to be paid in the first transfer of a motor vehicle, which has not been lapsed for a period of 7 years from its first registration.

12. For diesel motor vehicles (motor cars and dual purpose vehicles), diesel tax / luxury tax receipts with photocopies.

Tax calendar for 2007 (1st half)

QUESTION: My son is a big time businessman and is an income tax payer. I would be thankful if you could publish the Tax Calendar for the year 2007 (1st half) as it would help him to pay his taxes and also to file his returns on time.

J. Batholomeusz, Kesbewa.

ANSWER: Tax calendar - 2007 (1st half)

Payment and return dates (on or before)

January:

15 - PAYE - December 2006

15 - WHT deducted - December 2006

20 - VAT payment and return - December 2006

20 - ESC payment and return - 3rd Quarter 2006/2007

30 - Debit Tax deducted - December 2006

February:

15 - PAYE - January

15 - Income Tax 3rd instalment (2006/2007)

15 - WHT deducted - January

20 - VAT payment and return - January

30 - Debit Tax deducted - January

March:

15 - PAYE - February

15 - WHT deducted - February

20 - VAT payment and return - February

31 - Debit Tax deducted - February

April:

15 - PAYE - March

15 - WHT deducted - March

20 - VAT payment and return - March

20 - ESC payment and return - 4th Quarter (2006/2007)

30 - PAYE annual declaration (2006/2007)

30 - Debit Tax deducted - March

May:

15 - Income tax - 4th instalment (2006/2007)

15 - PAYE - April

15 - WHT deducted - April

20 - VAT payment and return - April

30 - Debit Tax deducted - April

June:

15 - PAYE - May

15 - WHT deducted - May

20 - VAT payment and return - May

30 - Debit Tax deducted - May

How to obtain relief from Debt Conciliation Board

QUESTION: Please let me know how the public could get relief from the Debt Conciliation Board.

Anura, Gampaha.

ANSWER: Printed application forms together with all necessary information are supplied free of charge by this Department.

These applications can be obtained from the Secretary of the Department of the Debt Conciliation Board, No. 428/11, Weera Denzil Kobbekaduwa Mawatha, Battaramulla either by post or by personally calling at his office. Tel. No. 2865477/2865488.

A set of applications consist of two parts. Particulars of the hypothecated property should be entered in the Schedule to Part 'A' and the particulars of loans raised without security (Promissory Notes etc.) if any should be entered in Part 'B' of the application.

The Department has no authority to deal with applications in respect of unsecured debts (Promissory Notes etc.).

However, a single application may be made in respect of an unsecured debt (Promissory Notes, etc) accompanied by a secured debt.

The application which should be submitted in duplicate should contain the applicant's full name and address, an affidavit signed before a Justice of the Peace and particulars of the creditor and the deed concerned. It is compulsory that the application should be accompanied by a certified copy of the deed concerned.

Applications in respect of Conditional Transfers and Mortgage Bonds should be made to the Board before the date of expiry of the Conditional Transfer or the institution of any proceedings in a Court of Law respectively.

This Board has no powers to intervene in respect of loans obtained from lending institutions covered by the Recovery of Debts (Special Provisions) Act No. 2 of 1990.

Co-ownership of land

QUESTION: I am a co-owner of a certain land. Please let me know the rights of a co-owner.

Shanaka Tissera, Bangadeniya.

ANSWER: When two or more people own land jointly, they own the whole of it in undivided shares which may be equal or unequal. Since every inch of the land is owned jointly, each co-owner is entitled to possess any part of it.

However, a legally recognised practice has developed whereby each co-owner may, with or without the consent of the others, cultivate or reside on a portion of the land which is proportionate to his share of the whole, provided that the use to which he puts the land is a use that is natural or necessary in the circumstances.

For instance, one co-owner cannot, without the consent of the others, put up a building on a land that has hitherto been used only for growing crops, nor can he take a disproportionate amount of road frontage from the land.

A co-owner cannot dispose of a divided portion of the land but can dispose of his undivided share to another person.

However, he can sue a trespasser for ejectment from the whole land without joining the other co-owners as parties. This is because possession by one co-owner is regarded as possession on behalf of all.

For this same reason, however, the law of prescription does not operate between co-owners unless there is a very clear evidence that one co-owner has ousted the others and held the land as sole owner for the required period.

Such ouster need not be forcible, but there should be clear manifestation that the ousting party possessed as sole owner, adverse to all others.

A co-owner who wishes to terminate the co-ownership and become owner of a divided share can effect a partition of the land either amicably by deed of partition signed by all co-owners or by instituting a partition action in court.

Massive cash fraud by employee

QUESTION: Recently the internal auditors detected a massive cash fraud carried out by a responsible officer of the company. When called for his explanation he admitted in writing that he has misappropriated the funds and agreed to pay back the amount within a given period.

There is sufficient documentary evidence available to prove that he has altered accounting records to withdraw money. The person concerned is still in employment but not dealing with the same subject.

We have not yet lodged an entry in the police since he has agreed to repay the money. Is there any other way of protecting our interest legally without going through police action? Please advice.

R. de Silva, Colombo.

ANSWER: According to your question, we understand you have not made a complaint to the police and the said employee is now attached to another branch of the same company.

As per his letter, you can give him a reasonable time period to repay such money. If he defaults to make such payment, you have a right to lodge a complaint to the police against such an officer and seek relief from courts.