Tsunami Background

Special legal mechanism implemented
to deal with tsunami consequences
- Attorney General

In addition to the relief and other urgent measures taken, it became necessary for the Government to initiate and implement a special legal mechanism to deal with the consequences of the tsunami. The existing laws were not adequate to meet their situation.

In fact, the implementation of the existing laws would have caused more hardships and inconvenience to the victims, said Attorney General K. C. Kamalasabeyson PC, addressing the Asia Pacific Judicial Colloquium on Judicial and Jurist Perspectives on Human Rights in Post Disaster Situations, held at the Galle Face Hotel on Saturday.
Thus, on the June 13, 2005, the Parliament enacted the Tsunami (Special Provisions) Act No. 16 of 2005 to ensure that there is a legal mechanism in place to protect and assist those affected by tsunami also to safeguard their rights.

The Act consists of six parts. Whilst identifying the legal obstacles and legal barriers that confronted the tsunami victims, the law in these parts incorporated special provisions to deal with the new situation, the Attorney General said.
The Conference was organised by the Legal Aid Commission and The Human Rights Commission sponsored by UNHCR and Aus AID.

Legal Aid Commission Chairman S.S. Wijerante presided at the conference.
Former Supreme Court Judge of Pakistan Justice Nasir Aslam Zahid, Former Australia Supreme Court Judge, Justice Marcus Einfeld AO QC, former Indian Supreme Court Judge, Justice D.P. Wadhwa, Australian High Commissioner in Sri Lanka Dr. Gregory French, Director of Public Prosecutions New South Wales Australia Nick Cowdry AM

QC, UNHCR Protection Officer Ms. Annika Sandlund and member of the Eminent Persons Group on Refugee and Migratory Movement of South Asia Dr. Azam Choudry were among the foreign speakers.

Attorney General Kamalasabeyson emphasised that the tsunami of December 26, 2004 devastated several coastal areas in Asia including the coasts of Sri Lanka, India Indonesia and Thailand. Millions of Dollars worth of property and infrastructure were completely destroyed.

Thousands of people lost their homes and livelihood. In Sri Lanka it was estimated that at least 40,000 lost their lives. The entire nation was shocked. The country was totally unprepared to handle this catastrophe.

Attorney General Kamalasabeyson said:
"Provision is also made in the said Act to enable either the next of kin or any other person to apply for and obtain a certificate of death through the Registrar General.
The procedure for such Application involves investigations at different levels and a final determination whereby the Registrar General is vested with the power to direct the appropriate Registrar to register the death and issue a death certificate.

On the other hand provision is also made for any person who becomes aware, that the person whose death has been registered is alive, to take steps for the cancellation of the death certificate. Here again, the law provides for a procedure. This part also creates offices where false statements are made or the certificate of death is dishonestly or fraudulently used.

"Provision is also made for any person desiring to become a foster parent of a child or young person to obtain a foster care order from the Magistrate. An application for this purpose would involve the evaluation by a foster care evaluation panel consisting of specialized personnel.

Several provisions are contained in the said part relating to the duties of a foster parent, monitoring officers, issuance of Birth Certificates and the procedure for revocation of foster care order. A significant provision is fetter on the jurisdiction of a Court to make an adoption Order under the Adoption of Children Ordinance.

No adoption of a tsunami child is possible unless the child has been first placed in foster care in terms of the Act. Furthermore, no adoption order shall take effect until the expiration of one year after the making of the foster care order. This is to ensure that there is sufficient time for the child to recover from the trauma.

A tragedy of such large scale would naturally attract criminal elements as well. Thus, it became necessary to enhance the punishments specified in the Penel Code in respect of certain categories of offences relating to property. This is incorporated in Pat VI where the penal sanctions were doubled.

The above are briefly the provisions in the Tsunami (Special Provisions) Act. This law was passed after the event. The Sri Lanka Disaster Management Act which was in the Bill form in 2003 and approved by the Supreme Court in that year subject to certain alterations was not presented to Parliament and came up for determination before the Supreme Court again in 2005.

It was finally passed in March, 2005. It is relevant to note that had this law been in operation prior to tsunami of 2004 there would have been in place National Disaster Management plan which would have covered the tsunami as well. The Supreme Court in its subsequent determination has specifically referred to this unfortunate omission", the Attorney General said.