Introduction - Strengthen the NGO laws

One of the key indicators in a functioning modern democracy is the presence of strong Civil Society Organisations (CSOS) often referred to as NGOs.

Complex issues that envelope governance require the governed or the people to organise themselves in pursuit of promotion of diverse interests whether they be humanitarian, environmental or public law or social services.

During the past two decades there had been a healthy trend in Sri Lanka for active civic participation in issues of good governance.

Since most NGOs deal with special issues which are often neglected by the State this imposes a heavy responsibility on these citizens groups to be accountable and transparent and adhere to internationally recognised standards.

This is even more important, as most of the funding of the large NGOs are received from foreign donors, who may have different agendas from mere welfare of the vulnerable people of Sri Lanka.

Hence, States the world over have taken legislative measures to ensure that NGOs function, in an accountable manner not only to foreign donors but also to the people in whose name they raise external funds.

Even the developed donor countries have established charity laws to prevent undermining of national security by unaccountable groupings who very often does not represent the people at large but only the organisers and their co-workers.

Community Based Society Organisations (CBSOs) like the village Death Relief Societies or the Elders Societies who have resource constraints need to be strengthened.

However, legislators should avoid enacting laws with the avowed purpose to strengthen NGOs but in fact results in muzzling them.

The legal situation regarding NGO registration in Sri Lanka is both confusing and outdated. There is no official register of INGO or NGO or even some of the CBSOs.

Diverse authorities are vested with power to register or incorporate non profit making organisations in Sri Lanka. Some of them are:

1. Voluntary Social Service organisations (Registration and Supervision) Act, No. 31 of 1980 and Amendment Act, No. 8 of 1998.

2. Companies Act, No. 17 of 1982, Section 21.

3. Special Acts of Parliament.

4. Co-operative Societies Law of 1972.

5. Societies Ordinance of 1891, as amended.

6. Agrarian Development Act, No. 46 of 2000.

7. Rural Development Societies.

8. Protection of the Elders Rights Act No. 9 of 2000.

9. Consumer Affairs Authority Act.

10. Trusts Ordinance.

In line with legal provisions in many developed countries irrespective of mode of registration, there should be one central register of NGOs which would ensure transparency and some accountability to the public.

The custodian of registration would like in the United Kingdom, the Charity Commission could be a National Commission for Non-Governmental Organisations which will be independent of the Government in all decision making.

- S.S. Wijeratne

Developmental Legal desk 8:

The Human Rights Bureau

The Human Rights Bureau was founded by the incumbent Chairman of the Legal Aid Commission, S. S. Wijeratne.

The Legal Aid Commission has set up this Bureau in order to achieve the following objectives:

1. Assisting the following vulnerable groups to vindicate their rights guaranteed to them under the Constitution.

* Indigent persons (whose income limited is below Rs. 6,000)

* Women

* Children

* Destitute elders

* Victims of the civil war

* Victims of tsunami

* Internally displaced persons

2. Conducting awareness programs in field of human rights and related to issues to the following groups of the society:

* Police Officials

* Prisons Officials

* Members of the Bar (Regional)

* Panel Lawyers

* Coordinating Officers of the Human Rights Commission

* Law Students

* General Public

* Schoolchildren

3. Conducting research programs and publications in the field of human rights.

4. Representing indigent clients in the Human Rights Commission.

5. Liaising with the Human Rights Commission through the Legal Aid Centers island wide to effectively help the poor and vulnerable to vindicate their rights in the apex of the judiciary.

The Human Rights Bureau is headed by Nuwan Peiris, Attorney-at-Law who appears in court on behalf of the indigent clients,. and who is also responsible for carrying out human rights research on 'family rights' and 'foreign migrants'.

[Questions and Answers]

How to find lost deed

Q: I bought a land at Maharagama. Though the Notary had handed over the deed to me after duly registering it, I have lost the deed while travelling. The notary concerned has died. Though I have made inquiries I was told it is rather difficult to get the particulars.

Earlier the land was in extent 40 perches. Later it was divided and I bought 20 perches on the east and a cousin of mine bought the western portion. Would that information help me to find out my deed from the Land Registry.

R. Niroshan - Kandy

A: You can get a certified copy of your deed, if you could approach your western neighbour, get her deed and find out information of your deed. If you look at the deed the title would be mentioned and the prior registration also would have been mentioned.

If you can get those details, it is enough to find out any information regarding your deed. So you can apply for the title of deed and the extract.

By giving through the extract you would find the particulars of the deed. Then apply for your deed or else you can go through the registers of the Land Registry and apply for your deed.

Law of Tesawalamai

Q: I am married to a man who is governed by the Law of Tesawalamai. I am separated and have my dowry property in Jaffna. I would like to sell the property and give my daughter in marriage.

I was told that unless my husband signs the deed and give his consent, I will not be able to dispose of my property. I would like to know whether I could sell it without my husband joining in the deed to give his consent?

Rajini Rajasingham - Navalar Road, Jaffna.

A: A wife can apply to family court in the following circumstances:

01. If the wife is deserted by her husband.

02. or separated from him by mutual consent.

03. or if the husband is in prison for a period exceeding 2 1/2 years.

04. If the husband is of unsound mind or an idiot.

05. or if his place of abode is unknown.

06. or the husband is unreasonably withholding his consent.

07. or the interest of the wife or children of the marriage require that such consent should be dispensed with.

She can apply by petition to family court of the district in which she resides or the property to be disposed of is situated.

After summary inquiry the court can give such order, subject to such conditions and restrictions as the justice of the case may require and the consent becomes no longer necessary for the valid disposition of or dealing with such property by such woman.

Petition should require a stamp of ten rupees but no further stamp duty is required.

What should be done if 'B' membership certificate is lost?

Q: I lost my 'B' Membership Certificate. How do I get a new 'B' Card?

S. Indika - Mahawa.

A: If your 'B' Membership Certificate is lost, please complete a 'B' form and together with a Money Order for Rupee One written in favour of the Commissioner of Labour with Colombo as the paying office, send it to the Deputy Commissioner of Labour (EPF) to P.O. Box 1725, Colombo.

Please remember the 'B' Membership Certificate is a necessary document to claim EPF benefits.

Is there any provision to ask for maintenance for disabled child?

Q: I have a disabled child. The father of the child is neglecting him. I want to know whether there is any provision to ask for maintenance for this child.

P. Kusuma - Battaramulla

A: Under the Maintenance Ordinance Amended Act No. 37 of 1999, there is provision to ask for maintenance to a disabled child from their parents. Under this Act the Court will look at the circumstances of the case. In this regard the paternity has to be established. Today the DNA tests provide such facility.

An application for maintenance may be made-

(a) where such application is for the maintenance of a child or disabled offspring, by such child or disabled offspring or by any person who has custody of such child or disabled offspring.

The application for maintenance may be made to the Magistrate's Court within whose jurisdiction the applicant or the person in respect of whom the application is made or the person against whom such application is made resides.

Role of Urban Development Authority

Q: What is the role played by the Urban Development Authority (UDA) with regard to controlling pollution and the development of urban areas.

F. Ismail - Mattakkuliya.

A: Apart from controlling pollution, it is also the policy of the State to ensure planned development of urban areas.

The controlling authority in this regard is the Urban Development Authority (UDA) which is responsible for overall planning but is empowered to delegate and has delegated, its powers of granting development permits to local government authorities.

Under Section 8A (1) of the UDA Law as amended, the Authority draws up a development plan for each area gazetted as a "development area".

After approval by the Minister, the plan is made available to the public for inspection. The plan provides for such matters as land use, zoning infrastructure development, building specifications, pollution control and environmental quality.

Under this law no "development activity" may be carried out without a permit. Such activity includes sub-division of land, erection of structures of works, carrying out of building or engineering operations on, over or under any land, and any change of use of any land within the "cartilage" of any dwelling house for any purpose incidental to the enjoyment of a dwelling house not involving any building operation that would require the submission of a new building plan.

The Authority is also empowered to serve notice on any person engaged in unauthorised development activity or activity in contravention of the terms of a permit, requiring such person to cease such activity and restore the land to its original condition within a period of time stipulated in the notice.

Failure to comply can result in prosecution in a Magistrate's Court.

However, the general duty of keeping a city clean and looking after public amenities falls on the relevant local government authorities, namely - Municipal Councils, Urban Councils and Pradeshiya Sabhas.

What do you mean by servitude rights?

Q: Could you please explain through your Daily News Legal Aid Page what you mean by servitude rights.

M. Lawrence - Malabe.

A: A servitude is a right which the owner of one land is entitled to exercise over land belonging to another. A number of such servitudes have been recognised by the law.

They include a right to travel over the servient tenement either on foot or using vehicles (right of way); the right to discharge water onto the servient tenement; the right to draw water from another's well; the right to receive lateral support from the servient land or from a building on the servient land; and a servitude of light and air, i.e. the right to prevent one's neighbour from building in such a manner as to obstruct one's neighbour from building in such a manner as to obstruct one's light and view.

Servitudes can be created by being expressly granted or by a prescriptive user. If it is by grant, there must be a notarially executed document in keeping with the requirements of Section 2 of the Prevention of Frauds Ordinance which applies not only to dispositions of land but also to any "interest or encumbrance affecting land".

A servitude can only be granted by the owner of the servient tenement. Thus where a landowner leased his land in two portions to two different lessees, one lessee was not entitled to claim a servitude from the other lessee.

How to find the deed number of a lost deed

Q: A deed has been misplaced 50 years before. It was owned by my dad. Now he has expired. He did not give any information regarding the said deed.

The land in question is being used illegally but there is no constructions. I went to the Colombo Land Registry to find out the details about the deed. But it was not successful. Please help me to find out the number of the deed.

Sent by Email.

A: You have not mentioned where the land is situated. All the lands have been assessed by the relevant Local Authority and the owner has to pay rates to the Local Body.

So please go to the relevant Local Body and go through the register and get the particulars regarding the deed and apply to the relevant Land Registry and get the certified copy of deed and encumbrance sheets, if necessary.

You have not mentioned as to who pays rates to the Local Body and whether you still got to the land and maintain the boundary premises or boundaries.

You are the legal owner of the land if you have the deed and the land is entered in the assessment register as yours. You have to find out whether the man who uses the land, as mentioned by you in your letter, objects to your entering the land. Otherwise he can always claim prescriptive rights in his favour against you.

Pension Rights of those who have obtained 'Releases' from Armed Forces.

Q: Although all appointments to the three Armed Forces are pensionable, some who wish to leave after serving 12 years or more are granted 'Releases' with no benefits for the services done.

Can such personnel claim their pensions for the 12 years or more service rendered, on reaching their 55th birthday?

I am aware other public servants, who had resigned after serving 10 to 15 years service, claiming their pensions on reaching their 55th birthday? Can you please clarify and let me know if possible what documents I should produce or submit to the Director of Pensions?

D. Peiris - Moratuwa.

A: The three Armed Forces mentioned by you are entitled to pension.

But they have to complete the retirement age in order to be entitled to their pension rights. However, the officers of the three Armed Forces will be entitled to their pension after completing 20 years of service. Others (who is not an officer) but working in the Armed Forces have to complete 22 years of service.

According to your question you have left the service after completing 12 years. So you are only entitled to your gratuity and you are not legally entitled to your pension.

Entitlement of pension rights while serving as member of private staff of a Minister

Question: Please answer the following questions through your Daily News Legal Aid Page.

I am a retired public servant drawing a pension which is my earned right.

I am being offered a job to serve as a member of the private staff of a Minister.

If I accept the job, will I be able to draw the salary together with my pension?

After all I will be working hard to earn that salary.

Should I get approval from any authority like the Director of Pensions/Secretary/Public Admin.

Please advise me early.

L. M. Pieris - Moratuwa.

Answer: If you are working as a member of the private staff of a Minister for a period of five years, you can add that period of service to the previous service. At the time of retirement both periods of service and the salary can be added to compute the pension.

You have to submit the revisional application via the Minister to the Pensions Department. If you need further clarification in this regard, you may contact the Director of Pensions on Tel. No. 2431647.

Where to make complaints regarding sexual harassment in work places?

Q: I am living in Anuradhapura. Most of the girls residing in my area are working late hours in the places of employment.

Most of them are also subject to sexual harassment in their work places. I understand that we can complain about such incidents to the Labour Department.

Is there any regional office in Anuradhapura to make such complaints? If so, please give the necessary details through your Daily News Legal Aid Page.

S. Lokubanda - Anuradhapura.

A: Regarding sexual harassment in work places, you can make a complaint either to the police or to the Labour Department. There is a regional office in Anuradhapura. The address is given below:

The Labour Office, Bandaranayake Mawatha, Anuradhapura, Tel. No. 025 2222495, 025 4581334, 025 2223134.

Our Legal Aid Commission has set up a Women's Desk and we have already forwarded your question to the relevant Desk. If you need further clarification you can meet Mr. Mahadiulwewa, AAL/Coordinator of the Legal Aid Center, Anuradhapura. Tel. No. 025 2224465.

Legal Events

February 03 - Awareness Programme for women at Kamburupola School Hall, Bandaragama.

February 14 - Opening of 35th Legal Aid Center at Matugama

February 23 - Islandwide essay competition awards ceremony at the Central Bank Auditorium, Rajagiriya.

Disclaimer

The answer to the questions are the legal views of the individual lawyers and the Departments and the Legal Aid Commission only compiles them for the Daily News Legal Aid Page.

Please send your questions in brief to - The Chairman, Daily News Legal Aid Page, Legal Aid Commission, N. 129, High Court Complex, Hulftsdorp Street, Colombo 12

Email:legalaid.dailynews@yahoo.com