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Opinion


Still a long way to go

By Cyrene Siriwardhana
International Women’s Day was celebrated throughout the world just over a week ago. We all contemplated on the situation of women, spoke and wrote many worthy words about their plight. When the tamashas are over and the dust has settled down after all our activities celebrating women, their lives and their work, what is next?
When talking about the burning issues facing women today, there are many places to start. One would be the concluding observations on Sri Lanka by the UN Committee on the Elimination of Discrimination Against Women (CEDAW). The Committee, consisting of international experts on women’s issues, oversees the implementation of CEDAW. All parties to CEDAW have a duty to submit periodic reports to the Committee on the gender equality situation in their respective countries.

Sri Lanka submitted its last set of periodic reports to the Committee in 2002. While commending Sri Lanka on the positive developments in relation to women, such as the introduction of new offences of violence against women and the improved literacy rate, it highlighted a number of areas of concern along with recommendations to address those concerns.

Next Sri Lankan report
It is time for Sri Lanka to submit its next report to the Committee, and explain what measures, if any, we have taken in that regard. Also to inform the Committee how we have fared?
This article will look at just one of the most pressing areas of concern, which both the Committee as well as others, have repeatedly raised. First is that of violence against women. This is an especially significant area in view of the UN theme for International Women’s Day this year, which is ‘Ending impunity for violence against women.’
On paper we have a variety of laws protecting women from violence. In 1995, the Penal Code was amended to strengthen laws protecting women and children. A minimum mandatory sentence was introduced for rape. Both gang rape and custodial rape, i.e. rape of a woman by a person having custody of the woman by taking advantage of his official position, were recognised as requiring more severe punishment. Grave sexual abuse - to deal with situations falling short of rape, and sexual harassment, were brought in as new offences. Incest was recognised for the first time as a specific offence, whereas formerly it was prohibited only in relation to marriage.

These are no doubt significant legislative milestones. Yet, what about the ground situation? Some years ago, lawyer and writer on women’s issues, late Kamalini Wijayatilake said, “Given the several initiatives taken by the state as well as non-state parties towards eliminating gender-based violence, there appears to be no perceived significant change or downward trend in incidence of violence against women.” Going further, a former Supreme Court judge alerts us to the danger in relying too much on legal changes. Citing a study by Lawyers for Human Rights and Development (LHRD), Justice A.R.B. Amerasinghe comments that “…if the evidence in the LHRD study is anything to go by, the introduction of harsh sentences and mandatory sanctions merely provided an illusion that the state has taken appropriate action to control rapists.”

Situation today
This appears to be borne out by the situation facing us today. At a workshop in Moneragala to mark International Women’s Day this year, a senior police officer noted that a woman is raped every 6 ½ hours in Sri Lanka. He frankly observed that the advice of experts given to control particular incidents is rarely put into practice. Recent reports of the alleged abuse of a small girl at an inter-international school sports event give rise to worries that the landscape of abuse may even be changing and expanding.

According to police department statistics, in 2003 there were 3661 reported crimes against women, of which just under a half were serious crimes such as murder, rape, serious bodily harm and serious sexual abuse. While the number of reported cases of violence against women is increasing, it is difficult to know whether this is due to actual increase in incidents or increased readiness to report. What seems clear is that in any event, much of the violence which takes place against women, especially at home, goes unreported. A number of studies estimate that as high a proportion as 60 percent of women in Sri Lanka are subject to domestic violence.
Horrific incidents of violence against women and girls are highlighted time and again in the media and other reports. Women In Need (WIN), which provides legal assistance to women victims of violence, has been involved in a number of such cases. A Buddhist monk was recently convicted of raping, on more than one occasion, an 11 year old girl attending Sunday school. Ongoing cases include the alleged rape of young girl children by their father, and the alleged gang rape of a speech impaired young woman by five men, resulting in her becoming pregnant and now the mother of a child.

Domestic Violence Act
One concrete measure Sri Lanka can claim to, have taken to implement the recommendations of the UN Committee is the enactment of legislation to combat domestic violence. The Prevention of Domestic Violence Act was passed in 2005. The principal aim of the law is to provide immediate protection for persons at risk of domestic violence by obtaining a protection order against the perpetrator. This law has been used and a number of protection orders have been obtained by aggrieved women. WIN find women coming to them from all strata of society, from the upper middle classes to the underprivileged. In a recent case, a protection order was issued to a computer operator and her son. Her husband hit her so hard with the intention of fracturing her hand, so that she was unable to work. Her six year old son was also attacked trying to protect his mother and suffered a head injury.
The operation of the domestic violence law is however hampered by a number a factors which applied equally to earlier laws designed to assist women, such as lack of awareness and sensitivity of law enforcement officials and of the judiciary. If these larger issues are not addressed, this law too is at risk of ending up far less helpful to women than anticipated.

Weak implementation
Past experiences with legislative interventions to address the problems of women raises a critical issue: their weak implementation and the consequent need to monitor their impact and effectiveness. The UN Committee specifically alludes to this when it requests the government to provide in its next periodic report information on the assessment and impact of all laws, policies, plans, programmes and other measures taken to implement the Convention.
While recognising the difficulties inherent in impact assessment and monitoring in this field, there is a need for more systematic data collection on violence against women. An assessment of the operation of the Prevention of Domestic Violence Act, for instance, would be very useful at this juncture when the law has been in force for just under two years.

International Women’s Day is an important way in which to mark women’s contribution to the world. It is also an opportunity to focus on the still all too many areas in which they suffer as a result of a world which fails to recognise their place as equals to men. But it should not be a mere convenience - to ensure that women ‘get their day,’ voice their concerns and then get put away until the March 8 next year.
(The writer is an Attorney-at-Law)

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New rules for credit

UCP 600 is the latest revision of the rules replacing UCP 500, which has regulated international trade for nearly six years since it came into force on January 1, 1994. UCP 600 has heralded its arrival with a bang and is due to take effect from July 1, 2007.

By A.H.M.D. Nawaz
By a unanimous vote of 91, the ICC Banking Commission on October 25, 2006 approved UCP 600. The Uniform Customs and Practice for Documentary Credits (UCP) is a set of rules governing the use of letters of credit. It was first published by the International Chamber of Commerce in 1933 and has been revised five times since then.
Commercial letters of credit are said to be the life blood of the international trade system, and for more than 70 years, the International Chamber of Commerce (ICC) has operated a sound system of rules governing documentary credits worldwide.

UCP 600 is the latest revision of the rules replacing UCP 500, which has regulated international trade for nearly six years since it came into force on January 1, 1994. UCP 600 has heralded its arrival with a bang and is due to take effect from July 1, 2007. So the trading community, bankers and lawyers alike have taken to its imminent arrival in all earnest and there is a growing need to know its implications on trade finance and borderless trade. The concomitant case law that followed the interpretations of the provisions of the UCP added to the richness of these rules and thus the LC world has held a charm for all those interested in the field. In this context, it becomes apposite to highlight some of the new provisions of UCP 600 vis-à-vis UCP 500.
Letters of credit, their nature and utility

Under a documentary credit, the buyer (applicant) agrees to pay the seller (beneficiary) using a reliable paymaster-generally a reputable bank, in the seller’s country – who pays against the presentation of stipulated documents that comply with the terms of the credit. UCP 600 defines credit in Article 2 as, “Any arrangement, however named or described, that is irrevocable and thereby constitutes a definite undertaking of the issuing bank to honour a complying presentation.” This simple definition is an improvement on the earlier definition and uses new terms such as honour and complying presentation, which are defined in Article 2. We know now that credits are going to be irrevocable and Article 3 strengthens it by stating that a credit is irrevocable even if there is no indication to that effect so the question of revoking a credit as under UCP 500 does not arise any more.

Express inclusion
The provisions of the UCP 600 will apply to a documentary credit (LC) only if there is an express reference to its application in the credit. Since the provisions would not apply by default but only on express reference, it is open to an exporter and importer to modify or exclude the provisions of UCP 600 expressly and thus they can even continue with the provisions of UCP 500 if they choose to. This contractual freedom of parties is manifested in Article 1 of UCP 600 If there is an express exclusion of UCP 600 and parties include their own provisions any conflict between the express provisions and UCP 600 will have to be resolved in favour of the former giving primacy to party autonomy.

Definitions and interpretations
When one contrasts UCP 600 with UCP 500 the precision of the language in the new rules makes them easier to read and understand, especially for people whose daily life does not bring them into the LC world. Articles 2 and 3 together bring into one place, definitions and interpretations of a large number of expressions which are going to become the international language of the LC world. For instance UCP 600 introduces in Article 2 a new word in the documentary credit banking language namely honor, which is borrowed from the US law. It is used to group together three types of payment known to trade finance- namely to pay at sight or at maturity or to incur a deferred payment undertaking. All these merge under one umbrella – Honour. UCP 500 spoke of paying at sight or at maturity or incurring a deferred payment or negotiation. We no longer have to speak this language. With UCP 600 we would only speak of honour or negotiation. The one term ‘honor’ covers three kinds of payment methods that are already in practice.

From the above definition of honor, one would notice that payment under a negotiation credit is not an honor, whether the payment is by negotiating bank or accepting bank. So the word honor is a new word as far as LC law is concerned but it is an old term in the legal terminology. Will this linguistic change bring about a sea change in the mindset of the banker? We have to await the responses.

Complying presentation
This expression in Article 2 is really a modification of what UCP 500 says, “In compliance with the terms and conditions of the credit”. The alternative formulation ‘complying presentation’ is defined to mean a presentation that is in accordance with the terms and conditions of the credit, the applicable provisions of the rules and international standard banking practice. So one can see that the new language is easier to grasp.

Negotiation
The old UCP in defining negotiation in article 10(b)(ii) refers to ‘giving of value.’ But the new UCP redefines negotiation in article 2 as, “By advancing or agreeing to advance funds”. The old definition stated that negotiation means the giving of value for Draft(s) and/or document(s) by the bank authorised to negotiate.
But the new definition goes as follows “Negotiation means the purchase by the nominated bank of drafts (drawn on a bank other than the nominated bank) and /or documents under a complying presentation, by advancing or agreeing to advance funds to the beneficiary on or before the banking day on which reimbursement is due to the nominated bank”. The language of this definition is clear and specific as against the old one. This is a kind of prepayment by the nominated bank if the credit is available by negotiation. Once the nominated bank has negotiated (prepaid) the credit against a complying presentation, the issuing bank becomes obligated to reimburse the nominated bank by virtue of Article 7 (a) (v) of UCP 600 Negotiation credits may use time bills and if the nominated bank agrees to negotiate, the exporter can get paid before maturity. . But the term negotiation itself has caused several controversies which could be revisited on a later occasion.

Types of credit under the UCP and prepayment
There are four types of credit in UCP. They are sight payment credit, deferred payment credit, acceptance credit and negotiation credit. Article 6b mandates that a credit must state whether it is available by sight payment, deferred payment, acceptance or negotiation. Once an LC is issued in any one of the above methods, it is an authorisation to honour or negotiate. But Article 12a states clearly that an authorisation to honour or negotiate does not impose any implication on the nominated bank to honour or negotiate, unless that nominated bank expressly agrees to do so. If it agrees to undertake any one of the two methods of payment, payment would be at maturity. But Article 12b enables the nominated bank to prepay. Having seen above that prepayment before maturity can occur under a negotiation credit, we now see that it can take place under acceptance or deferred payment credit. So the bottom line is that for prepayment the credit need not necessarily be a negotiation credit. This has generated an argument that negotiation can be constituted in the credits otherwise than through a negotiation credit and because of this interpretational imbroglio there is a school of thought that the word negotiation has not been defined properly.

In addition to the above UCP 600 is redolent of new provisions that requires careful consideration. Under UCP 500 a banker had a reasonable time, not to exceed seven banking days following the day of receipt of the documents, to examine the documents and determine whether to take up or refuse the documents (Article 13b). UCP 600 establishes an absolute deadline of five banking days to review documents and pay or decline a draw. Addresses of beneficiaries and applicants need no longer be as mentioned in the documentary credit. They must however be in the same country. Contact details (like phone and fax numbers) may be disregarded-and if stated they need not be as in the credit. An exception to this is where the address and the contact details are used in transport documents as part of the consignee or notify party. In that case they must be as stated in the credit. The transport articles too have been redrafted.

Transition
It is expected that with effect from July 1, 2007 the documentary credits issued after that date will be subject to UCP 600 rules. In principle credits can still be issued subject to UCP 500 even after July 1, 2007. So the credit must state which rules govern the payment mechanism. It has to be noted that documentary credits issued prior to July 1, 2007 subject to UCP 500 will continue to be subject to UCP 500-so there will be a transitional period when letters of credit under both sets of rules will operate in parallel.
(The writer is a Senior State Counsel of the Attorney General’s Department and is a lecturer in banking law)

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Floating university visits Lanka

The Peace Boat Japan, which is based on the concept of a Floating University of Peace, visited Colombo last week. This project functions in association with the Weeramantry Centre, which provides it with Sri Lanka students and lecturers.
Over the past few years, a number of Sri Lankan students have, through the Peace Boat obtained an unforgettable glimpse of cross-cultural understanding and peace studies and have made life-long friendships with students in different countries.
The Peace Boat arrived in Colombo on March 13 and tours were organised to the tsunami reconstruction areas in the South and to Kandy.

To conclude their visit to Colombo, the Peace Boat, in association with the Weeramantry Centre had a Celebration of Peace and Cross-cultural Understanding, at the Galle Face Hotel. Items presented by the students were illustrative of both Sri Lankan and Japanese culture. It was a memorable occasion attended by over 500 Sri Lankan and Japanese guests, at which there were performances of Japanese drum beats, Japanese fishing dances, Kandyan dances and Bharatha Natyam. Jananath’s Band provided the musical background.
After the Japanese dance and drum performances, Judge Weeramantry spoke of the importance of peace education and cross-cultural understanding which are ideals shared in common between the Peace Boat and the Weeramantry Centre.

Jananath’s Band fused western and eastern music in an exquisite blend, which ultimately resulted in the Sri Lankan and Japanese guests taking to the dance floor in large numbers.
The event also gave an opportunity to local associations to sell their handicrafts, thus supporting efforts to empower local community livelihood projects. There were also performances by a group of orphans from the Sri Yasodara Young Girls’ Home. There was also an Art Booth by a member of the Peace Boat, Matt Muirhead.
NGOs from the Japan NGO Network for Development and Reconstruction of Sri Lanka, students from the Kelaniya University and Sewalanka also participated.
These voyages have been proceeding now for several years. The Sri Lanka students join the boat for one section of its global voyage.

On this trip, the Sri Lankans joined the boat in Vietnam and sailed to Colombo. Last year they joined in Colombo and sailed to Jordan.
For all participating it is an unforgettable experience. All the students who participate are committed to taking back the knowledge and experience they have gained to their own student groups and to being in touch with the Weeramantry Centre in its work on cross-cultural understanding and peace education.

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