Must read for lawyers and law students

Reviewed by Yasantha Kodagoda

The 27th Volume of the Bar Association Law Journal was ceremoniously released, at a function chaired by the President of the Bar Association of Sri Lanka, Shibly Aziz, PC. Senior Attorney Kandiah Neelakandan who has for the last 17 years functioned as the Chief Editor of the journal, presented the first copy to reputed and respected human rights lawyer and academic R.K.W. Goonasekera.

The 27th Volume has been specially dedicated to the memory of the late Desmond Fernando, PC, twice President of the Bar Association of Sri Lanka and former President of the International Bar Association.

The journal has several special articles regarding the life and times of Fernando who was both a gentleman and a good lawyer of the yester years. It is indeed fitting that the journal has been dedicated to the memory of Fernando, who passed away one year ago. The journal has several interesting photographs depicting Desmond Fernando’s valuable services to the legal profession, and a historical formal photograph of Judges of the Supreme Court of Sri Lanka, chaired by the first lady Chief Justice of Sri Lanka Dr. Shirani Bandaranayake.

The photograph reflects that today, after the lapse of several years, Sri Lanka is benefitted by having the full complement of judges of the Supreme Court. This would undoubtedly enable the Supreme Court to expedite the disposal of cases before the apex court of Sri Lanka.

The Journal has 17 interesting and well-written articles, commencing with an article by Judge of the Supreme Court Justice Saleem Marsoof, PC on improving the efficacy of commercial dispute resolution in Sri Lanka. This article contains the text of the inaugural Institute of Advanced Legal Studies Oration delivered by Justice Marsoof in July 2010.

The article contains several important and viable proposals to enhance the efficacy of the system of commercial dispute resolution in Sri Lanka. The journal also has a second contribution by Justice Marsoof, on the demise of the ultra-vires doctrine under the new companies law.

Drunken driving

Judge of the Supreme Court Justice Suresh Chandra has written a very clear narration of the law relating to ‘Drunken Driving’. Similarly, Justice Priyasath Dep who was elevated to the Supreme Court very recently from having honourably served the Attorney General’s Department for a continuous period of over three decades, has contributed a well researched article on ‘accomplice evidence’.

The article will be of tremendous value to criminal practitioners. A clear pronouncement of views on the independence of the judiciary and the legal profession has been written by Judge of the Court of Appeal Justice Anil Gooneratne. The independence of the judiciary and that of the legal profession should at all times necessarily be the centre of focus of the Bar Association of Sri Lanka. In that light, the principles contained in the article of Justice Gooneratne will be of great importance to the leaders of the Bar.

Retired Judge of the Supreme Court C.V. Wigneshwaran, in his contribution to the journal has seriously examined the Thesawalami Law. He has explained the scope of this important personal and territorial law and has illustrated its importance to the current era and has clearly showed that the Thesawalami Law is certainly not an archaic or irrelevant piece of law.

It will be most useful to practitioners particularly of the Northern Province, who now have the freedom to practise law and serve the community through the national system of administration of justice.

Mahie Wijeweera, Additional Magistrate, Colombo has contributed a well presented article on the law and practice relating to matrimonial actions in Sri Lanka. This article reflects the current status of the law and applicable legal principles relating to the adjudication of matrimonial disputes. For young practitioners engaged in matrimonial disputes resolution through litigation, this article will serve as a useful guidance.

International hub

Attorney Hiran de Alwis Colombo has written and article on using Colombo as a regional and international hub for professional legal services. He has highlighted how the services for commercial arbitration could be provided by Colombo for parties of other countries. Indeed, at a time when the commercial community of Sri Lanka no longer perceives commercial arbitration to be expeditious or inexpensive, there should be a revolutionary change in the entire system of arbitration in Sri Lanka and a wholesome and sincere attitudinal change in professional service providers such as Arbitrators and Attorneys, if we are to attract foreign arbitral parties to Sri Lanka.

One time Minister of State Banks President’s Counsel and Member of Parliament Wijedasa Rajapakse has presented an interesting article highlighting the duties of customers towards banks. This article reflects the flip side of the often focused area of the duties of Banks towards their customers.

There are several other very useful and important articles in the journal. Due to want of space, those well written articles cannot be reviewed here. They are, ‘Unfair labour practice and victimisation’ by Attorney S. Egalahewa, ‘Doctrine of Ultra Vires and Judicial Review of Administrative actions’ by Attorney Chamila Talagala, ‘Interpretation of Contracts : New frontiers’ by Attorney Damayanthie Silva, ‘Restructuring companies in Sri Lanka’ by Attorney Kandiah Neelakandan, ‘Critique of the universality of liberal constitutionalism’ by Attorney Nayantha Wijesundera, ‘Foreign Direct Investment’ by Attorney Eraj Silva, ‘Applicability of Information Technology Law to avoid computer and internet crimes’ by Attorney Mahesh Devinda Abeynayake, ‘Applicability of concepts of Law of Contracts to E-commerce’ by Attorney Sunil Abeyratne, ‘Civil Aviation Act of 2010 – Some legal aspects’ by Attorney Dr. Ruwantissa Abeyratne, ‘Trading of software – some WTO perspectives’ by State Counsel Althaf Marsoof, and ‘Law of abortion in Sri Lanka : Where do we stand ?’ by Dr. Satish Goonesinghe.

Amendments

During the previous and the current publication of the Bar Association Law Journal, Sri Lanka went through a constitutional amendment, namely the repealing of the 17th Amendment and the enactment of the 18th Amendment to the Constitution. It would have been important to have included in the journal an article explaining and commenting upon this vital change in the supreme law of the country.

According to media reports, there is presently the possibility of the Government of Sri Lanka entering into an important agreement with India entitled the Comprehensive Economic Partnership Agreement (CEPA). It is widely believed that, this agreement when enforced may have an impact on the legal services sector of Sri Lanka. Therefore, it would have been useful had the editors commissioned a study of the draft agreement, and caused the ensuing article to be included in the journal on the CEPA.

The final part of the Bar Association Law Journal contains the Bar Association Law Reports, which reports are now cited as the BLR. Particularly at a time when the Sri Lanka Law Reports are not coming out with current volumes, the Bar Association’s initiative in publishing recent important judgements of the Supreme Court and the Court of Appeal is highly commendable.

This part of the law journal is complete with a digest of the fifty one judgements that have been reported. All the judgements have well prepared head notes. Virtually all the important judgements which have contributed towards the development of the law have been included in the journal. However, conspicuous by its absence is the Supreme Court’s determination on the 18th Amendment to the Constitution.

It is suggested that future volumes of this very important journal contains an index of amendments to the legislation introduced during the period between two successive publications of the law journal. It would be most useful if the Bar Association ensures that the Bar Association Law Journal becomes a truly annual publication, and that it is released during the first three months of the year.

Kandiah Neelakandan and his team of Attorneys on the editorial board have rendered a great service to the legal profession, by compiling the law journal and publishing it. I humbly commend the journal for reading by all judicial officers and Attorneys.

The writer is Deputy Solicitor General & Director, Institute of Advanced Legal Studies

A final clutch of memories

Reviewed by Carl Muller

As I told readers in Part Two, I will be leaving a lot unsaid, simply because this book HAS to be read. How will it serve to keep writing of all that it contains? I hope to take you that final threesome: Tissa, his Mother, Father, and learn of their first home off Baseline Road, Borella. They had lots of good neighbours as well as a young couple from Japan who were firm friends. I'm carving this up in the best way I can so please don't think that I am deliberately making omissions.

As Tissa says, they had a lot of 'Door Stop Shopping.' There came the Vattiammas with their vegetables, the fish vendors. The old Kooni-amma with shrimps, a Chinaman with his bundles of silks and laces, the Thrombal-karaya, Bombai-mutai-karaya, and the milk man. There were fast food vendors too, with their lunumiris achcharu and unu unu pittu and, on certain months in an open playground space, the Sakkili Usaviya where latrine coolies gathered to squat round an old 'judge' who pronounced justice on those who had to bear the brunt of pilfering, assault and domestic disputes.

Readers will be told of his mother's love for gardening, the magnificent zinnias she grew that were so impressive that that an artist-friend made an award-winning pastel drawing of the flowers - a picture that still adorns their home seventy-five years later. Tissa also tells of a 1939 musical performance by a white-bearded Rabindranath Tagore who, with a book on his lap sang to a troupe of Indian maidens who dance with supple grace.

New home

It was when schooling came that that the Devendras moved to a new home, nearer Nalanda College. They were four children then and yet another move to Dharmarajah Hill, Kandy. No... I won't tell you of the Steroiopticon that when put to use, a box of pictures told of a long-lost world and street scenes of 1897 London. Many moves later Tissa takes you to the Forbidden Forest of Kandyan Royalty and thereon to Horseshoe Street. He has given us a separate book on this collection of stories - a must buy if you don't have it already.

Tissa's father bought his first camera - a German Agfa - and it was when at Dharmarajah College that Tissa was diagnosed as short-sighted and had to wear spectacles. On doing so the boys in his class hooted and even called him Kannadi Polonga - but it was worth it. He could see as never before.

Considering that Dharmarajah was founded by Colonel Olcott, with a student body of mainly Sinhala Buddhists as well as Sindhis, Muslims and Tamils, there still came to the upper kindergarten the exotic George Davies, a yellow-haired Lansi whose father was a forest guard and lived across the road at Uduwattakelle. As sea war closed in Tissa's father was appointed Principal of a Ratnapura school. Another move... and Ratnapura was the rainiest of towns, where he travelled by buggy to school in the 1940s. He could not forget Kandy. Seventy years ago he saw the twilight of the Colonial era and remembers the Grass For My Feet author, J. Vijay-Tunga, who came from Galle.

Soviet films

There is a very interesting - no, fascinating chapter on the Karl Kasmana Caper that I leave for my readers. Let's say it involved an Estonian cargo ship that had sailed into Colombo Harbour and was impounded. There were Soviet films and books Claudine Libovitsz, an East European blonde, the Red American Rhoda Miller and both deported by Prime Minister Kotalawala.

Moving to Colombo it was the season of the old tram cars in 1946. When, in the 1950s, the Municipality scrapped the trams the last tramcar was decorated with streamers and balloons on its last haul to Grandpass with a hired Kotahena Band belting out the Funeral March.

He tells of the streets of his childhood memories, porticos to shelter people running in from the rain and how he accompanied his father to 'keep an eye' on the filming of Elephant Walk at Sigiriya. Since his father was then Assistant Archaeological Commissioner, they stayed at the Circuit Bungalow and spent evenings at the Takaran-roofed resthouse. You must read about it all especially when they took Vivien Leigh to Anuradhapura. Not long later she abandoned the film and flew back to London - and Elizabeth Taylor was spliced into the film.

Govt. Agent

And so to Galle where Tissa was a District Land Officer. He tells of Fred Brook, an American with a Hasselblad camera and of encounters with super swamis who broke every rule to take villages for everything they offered - food, money, flowers, honey. Trincomalee was in this regard most attractive.

As Government Agent, Jaffna, he was close to Alfred Duraiappah, Mayor, who was a close ally of Felix Dias Bandaranaike, Mrs. B's right-hand man.

Tissa makes no bones about this. When a young Tamil shot Alfred on the Temple steps of the Vishnu kovil. He later knew of the teen-age thug, Prabhakaran who had fled by boat to Tamil Nadu. Read of Tissa's year at Cambridge, 1968-69. It's worth every word and I'm keeping mum. He also tells of the women of passion, poison and power from the chronicles of the Mahavamsa, Culavamsa, Rajavaliya and folk songs - their celebrations, festivals, the Sandesa poems, then of the Kokis - or Koekjis as called by the Dutch, and how the Dutch Kak-huis, the outside lavatory, had become the Sinhala Kakkussiya.

Final piece

It is in his final piece, Quest for Shangri-La, that Tissa tells of D.H. Lawrence, having discovered that Lawrence lived for some time in Kandy and for a few months in the old bungalow they had occupied near Dharmarajah College. Lawrence came to Ceylon in 1922, but he found Kandy incredibly hot. He did write his beautiful poem, 'Elephant' and was an indefatigable letter writer. However, even after a trip to Nuwara Eliya he began to feel upset by Buddhism Read some of the letters Tissa gives. Lawrence then sailed to Australia, saying I don't like Ceylon, not to live in... From West Australia he moved to New that South Wales, saying that Australia goes from bad to worse in my eyes... and sailed away.

So now, readers I leave it all to you and say a big thank you to my editors. Too bad that it all had to end... but will it? Tissa is now a flashing, rainbowed cataract of literature. Soon we will. See more and more and so much more!

Manual of advice for positive living

Reviewed by C. Venugopal

A. Parthasarathy's Vedanta Treatise, The Eternities stands out as an oasis for those who earnestly want to understand the meaning and purpose of human life. It takes us beyond the general superficial analysis. To convey any idea clearly one must proceed from the known to the unknown. The effective usage of this fundamental principle of education makes the reading a pleasant intellectual exercise.

The Eternities Vedanta Treatise Author: A. Parthasarathy An author publication

The subtle nature of the subject matter does not make the presentation any complex as usual in philosophic books. Here one must recognise the extraordinary effort put in by the author in the creation of such a clear and lucid narration for the first time in any philosophical book.

The broad subject matter of Vedanta is systematically presented in three sections. Section one introduces Vedanta to a novice explains its basic tenets, and how it is relevant in everybody's life.

Three different chapters on action, emotion and wisdom analyse the criteria for human development. It explains the technique of right action to achieve success and mental peace together.

Section two explains the Vedantic principles in a deeper sense for practical application.

It clearly analyses the human composition and pauses the question of finding our true identity. The highlights of this section is a clear analysis of the much used and most misunderstood terms such as renunciation, yoga and meditation.

This section concludes with a graphic description of a person who has attained self realisation, the ultimate goal of human existence.

Section three brings out the true essence of Vedanta philosophy. It starts with a critical analysis on the use and abuse of religion. The idea that spirituality is also a scientific technology that needs a systematic and logical approach brings about a paradigm shift, a fresh awakening that empowers humanity to shake off the burden of superstitious rituals imposed on them in the name of spirituality. With this intellectual freedom and clarity one is exposed to highest thoughts known to mankind. The chapters on illusions and the Supreme Reality help to stretch one's intellect to its fullest potential.

What stands out is a clear enunciation of the facts of life free from personal opinions and bias. The book reaches out to each one who reads, gradually elevates from their limited boundaries to rediscover their universal self to enjoy unlimited freedom, ultimate peace and absolute bliss which are each one's birth right.

The book will serve as an instruction manual for positive living for generations to come.

Law relating to expulsion from Parliament

Reviewed by L.I. Keerthisinghe

Methsiri Cooray in this book succinctly analyses the law relating to the application of Article 99 (13) (a) of the 1978 Constitution of Sri Lanka. The proviso to Article 99 (13)(a) provides that in the case of an expulsion, a Member of Parliament may apply to the Supreme Court within a period of one month by petition in writing to have such expulsion determined as invalid. In the event of the Supreme Court deciding that such expulsion is invalid the seat of such Member of Parliament shall not become vacant.

In the introduction the author discusses the Free Mandate and the Imperative Mandate Theories of representation. In the free Mandate Theory the freedom of conscience of an elected Member of Parliament to exercise a free mandate in the national interest has been upheld. The relevant constitutional provisions including transitional provisions with their amendments have been enumerated and discussed.

Case Law comprising 22 cases have been analysed in chronological order. From the first two cases of Wijaya Gunawardena V Nandalal Fernando (SC 50/87Spl) and Yapa Abeywardena V Harsha Abeywardena (SC 51/87 Spl). Which were heard together up to the case of Muthu Banda V Kaleel SC 2/92 Spl. the expulsions were held to be valid. The first case in the series where the Court held that the expulsion was invalid was that of Thilak Karunaratne V Sirimavo Bandaranaike and 36 others SC 3/93 Spl. The writer of the present review was then apprenticing in the Chambers of D.S. Wijesinghe P.C., who was the Senior Counsel for the petitioner Thilak Karunaratne. Hence his dissertation for the Bachelor's Degree in Law was written on that case.

Cases

H.L. De Silva P.C. appeared as the Senior Counsel for the respondents Sirimavo Bandaranaike, the Sri Lanka Freedom Party and others. Dheeraratne J delivering the judgement of the Supreme Court quoted the dicta of Fernando in Dissanayake v Kaleel with approval to state: 'Our own jurisdiction under Article 99 (13) (a) is not a form of judicial review, or even of appeal, but rather an original jurisdiction analogous to an action for declaration though it is clearly not a rehearing. Are we concerned only with the decision-making process, or must we also look at the decision itself? Article 99 (13)(a) required us to decide whether the expulsion was valid or invalid. Some consideration of the merits is obviously required'.

It was also held that a Member of Parliament is not a mere lifeless cog in the wheel of the party machine nor a mere rubber stamp bereft of any independence of action. Ramanathan J delivered a dissenting judgement. After discussing the judgement in Karunaratne's Case under the caption Party Discipline and the Voice of Conscience' published in the Sunday Observer of September 26, 1993 Lakshman Kadiragamar P.C. and undisputed legal luminary of our time concluded: 'The dissents of today can well be the accepted law of tomorrow. They show that courts can never be taken for granted by any person or party, however powerful and influential. If the court always speaks with one voice on complex matters on which different points must necessarily exist, the apprehension might arise in the public mind that he who pays the piper calls the tune. The recent expulsion cases should help considerably to allay any such apprehension.' In the more recent cases of Rohitha Bogollagama v UNP, Ameer Ali v SLMC, Keheliya Rambukwella v UNP, Mahinda Samarasinghe v UNP the Supreme Court held that the expulsions were invalid.

Concept of Conscience

The author discusses the role of the Parliament and a Member of Parliament in a liberal democracy and the Concept of Conscience of an MP. The argument that an elected representative should be able to exercise his or her own conscience as an M.P. in the national interest has been upheld by the author in his work. The author quotes John Bright (1888) with approval as 'I must follow my own judgement and conscience and not the voice of my party leaders'.

The parliamentary experiences in Britain, India and Sri Lanka have been discussed succinctly by the author. The author speaks of the attitude of respect for the individual conscience of an M.P. advocated by John Stuart Mill in the 18th century. Mill stated: 'If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had power, would be justified in silencing mankind.' Dheeraratne J in Thilak Karunaratne's case quoted the said statement with approval and said: 'Passage of time has not staled the force of John Stuart Mill's statement'.

The author is critical of the recent decisions of the Supreme Court and states that 'party dominance vis-a-vis the Freedom of Conscience is not naturally a corollary of proportional representation in the light of experience in other liberal democracies.' The author concludes that in the cases of Rohitha Bogollagama v. UNP, Keheliya Rambukwella v. UNP, Mahinda Samarasinghe v. UNP the Court has impliedly unconsciously upheld the freedom of conscience.'

End notes

The book while ending with copious end notes containing references to materials and cases discussed in the text, commences with a valuable foreword written by Dr. Sunil S.A. Cooray which briefly analyses its contents. The preface reveals that the book is based on the contents of a lecture delivered by the author to the Royal Asiatic Society of Sri Lanka in 2008.

The work of the author would undoubtedly be useful to legal practitioners and students of the law who wish to study the law relating to Article 99(13) (a) of the Constitution. Parliamentarians will also benefit from the study of its contents. I commend the author for the able exposition of the law relating to the subject discussed in spite of his busy schedule on the eve of his departure to the Netherlands to take up his appointment as Minister Counsellor to the Sri Lanka Embassy in Hague, the Netherlands.