JSA LAW JOURNAL

JSA LAW JOURNAL 2014

Judicial Service Association of Sri Lanka www.jsasl.org

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Random Thoughts on

Real Evidence

Justice Buwaneka Aluwihare, P.C.

Judge of the Supreme Court

Somewhere in mid 1980s, I was assigned a prosecution pending in the circuit court of

Panwila, a sleepy town nestling in the valley of the cities, Kandy and Matale. The Attorney

General‘s Department circulars did not permit travel beyond 75 miles (the distances were

still referred to in ―miles‖ during those days in spite of the country having gone metric in

the 70s) by private vehicle and we were compelled to rely on public transport. I dreaded the

trip and was determined to see to the conclusion of the case for no other reason than the

travails of the journey. To start with, one has to take a bus to Kandy and then take another

to Wattegama. From Wattegama you have to squeeze into a single door bus carrying

passengers easily twice the capacity the vehicle could accommodate.

The case in question was a case of obstructing a public servant in the discharge of

his duty as succinctly defined in Section 183 of the Penal Code. The case I was saddled with

was not obstruction of ―his‖ public duty, but ―her‖ public duty, the Complainant being a

Lady.

The obstruction complained of was to this effect: One fine morning while the lady

officer was seated at her desk the accused, a minor employee of the same office, bathed her

with human excreta which he had brought to the office in a ―Lakspray‖1 bag.

The court was in session when I arrived and I had to push my way through the

litigants who had thronged to court, to reach the bar table. The nature of the case made me

somewhat nervous. I was mindful of the fact that I have to rely on public transport for my

return journey and wanted to make sure the accused was not carrying another ―Lakspray‖

bag, for I wanted to avoid being the second target of the accused.

I was impatiently waiting for my case to be taken up and my impatience made me

concentrate on each case that was called by the Mudliar. The nature of applications made on

behalf of the parties when their cases were called, were wide and varied. Amongst those

1 A brand of powdered milk



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applications, there were a quite a few applications that were made by counsel on behalf of

the accused, moving to have their clients discharged on the basis that the productions were

either ―destroyed‖ or were not ―available‖. Surprisingly, some applications did secure the

discharge of the accused. I wondered! What significance the material things or the lack of it,

would have in establishing a criminal charge. Neither the bag in which the accused allegedly

to have carried excreta nor any remnants of the substance in the bag, certainly were part

of the prosecution case that I was called upon to prosecute. This practice, of making

applications to have suspects discharged due to non-availability of productions was not

confined to the magistrate‘s court of Panwila but a common feature in every Magistrate

court I appeared.

A few years back a case was reported from a Magistrate‘s court which reminded

me of the famous drama, Henry Jayasena‘s “Hunuwate Kathawa”, in which two ladies were

claiming rights to a child, each one asserting the child is hers. The accused was charged with

stealing a calf. Both the accused and the complainant claimed that the calf was born to the

respective cows they owned. An order was made directing that to have all three animals be

produced before the veterinary surgeon and to have a report submitted upon analysis of the

blood samples of the two cows and the calf in order to identify the mother cow of the calf.

Then, came the reply from the veterinary surgeon ―Nowhere in the world, is there a facility

to carry out such a test save for Australia‖. For some odd reason incidents relating to cattle

keep popping up from the same Magistrate Court. Another case was reported a few years

back when a man was charged with stealing a cow. Fortunately for the animal, police acted

with alacrity and managed to recover her. The cow was eventually released to the virtual

complainant who lived some ten kilometers from the court, on a bond with the condition that

the cow should be produced in court on every day the case was being heard.

I cannot vouch for the number of occasions the owner would have had to shepherd

the cow 20 kilometers, to and fro before the case reached finality so much for preventing

cruelty to animals. In the same case, not only did the owner give evidence and identified the

cow which was tethered in the court compound, but he also became the proud recipient of

the marking... P1.

I am sure the cow would have happily flaunted this new label bestowed on her all

along the 10 kilometers before finally traversing back to grazing. Although this may sound

amusing there had been occasions in which an accused had succeeded in being acquitted due

to non-production of a carcass…! The case of Anderson vs. Laverock2decided by the High

Court of Scotland is one such case. This was a case where the accused was charged for

possession of 26 Salmon, illegally caught. Naturally, due to the perishable nature of the fish,

the salmon was not produced at the trial. The High Court quashing the conviction held, that

the appearance of the fish was an essential part of the defendant‘s case and inspection should

have been granted.

21976 CLYB 455



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There appears to be something wrong somewhere in the manner in which we treat

material things, (animate or inanimate), as Real evidence.

One has to bear in mind that every fact that is presented as an item of evidence

cannot be part of the record unless the said fact is relevant under one or more of relevancy

provisions of the Evidence Ordinance or it is not shut out by evidentiary policy.

If I may illustrate it in this way; as much as ―a fact connected with the fact in issue

as to form part of the same translation‖ is made relevant in terms of Section 6 of the

Evidence Ordinance (Res Gestae), communication made by a client to his Attorney in the

course of and for the purpose of his employment is made inadmissible by evidentiary policy.

What then is evidence?

According to the definition in Section 3 of the Evidence Ordinance-

"Evidence" means and includes

(a) All statements which the court permits or requires to be made before it

by witnesses in relation to matters of fact, under inquiry: such statements

are called oral evidence:

(b) All documents produced for the inspection of the court ; Such

documents are called documentary evidence.

One need not have the knowledge of rocket science to appreciate that evidence, therefore

only includes oral evidence and documentary evidence. If the meaning of evidence is

confined to these two aspects, did Fitz James Stephen make a mistake in not including ―Real

evidence‖ within the definition of ―Evidence‖ in Section 3 of the Ordinance?

What then is Real evidence? Among many definitions of the term by various jurists

the broad description given by Cross appears to be reasonably comprehensive. ―Anything

other than testimony, admissible hearsay or a document the contents of which are offered as

testimonial evidence examined by the tribunal as a means of proof.‖

Many writers have criticized Stephen for ignoring ―Real evidence‖ and for limiting

the term evidence to statements of witnesses (oral evidence) and documents. The criticism is

based on the fact that the definition (of the term evidence) is too narrow. Chamberlayne is

one such critic who remarked that ―it is one of the few fundamental errors of Stephen‘s

classification that it entirely omits perception as a medium of evidence‖.

Many were the occasions, I myself wondered as to the reasoning behind this

apparent omission on the part of Stephens to bring Real evidence within the scope of the



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term evidence. Here we go…... It's not there…, bound by the provisions of the Evidence

Ordinance we have no option but to conduct our affairs in court on the premise that Real

Evidence is outside the scope of the meaning of the term ―Evidence‖ under the Evidence

Ordinance.

If Real evidence is not ―evidence ―why do we have to refer to it as ―evidence‖ at

all? It goes back to classification attached to such evidence by early writers on the subject of

evidence. It was Bentham, who first classified evidence into personal and real. Subsequently

Phipson and Best adopted the term ‗Real Evidence‘ and gave it an extended meaning.

In my view, this exclusion of Real Evidence by Stephen is deliberate rather than an

omission.

Even in Stephen‘s commentary on the Indian Evidence Ordinance (which is more or

less identical to ours) he makes no reference to Real Evidence. However, the two

illustrations he has given, give us a hint as to the reason for the non-inclusion of Real

Evidence. The illustrations are as follows:-

The captain of a ship, a thousand miles from any land, and with no other

vessel in sight, is seen to run into his cabin, pursued by several mutinous

sailors. The noise of a struggle and a splash are heard. The sailors soon

afterwards come out of the cabin and take the command of the vessel. The

cabin windows are open. The cabin is in confusion, and the captain is

never seen or heard of again. (End of illustration 1)

A person looks at his watch and returns it to his pocket. Immediately

afterwards a man comes past, and makes a snatch at the watch, which

disappears. The man being pursued, runs away and swims across a river;

he is arrested on the other side. He has no watch in his possession, and the

watch is never found. (End of illustration 2)

Stephen goes on to say ―in these cases it is morally certain that the murder and theft

respectively, were committed, though in the first case the body, and in the second case the

watch, is not producible‖.

Simply stated, in Stephen‘s view the non-availability of the body of the deceased and

the watch respectively is no bar to establish criminal liability.

Stephen remarks3 that he wished to avoid needless intricacy as the condition of

material things is usually proved by oral evidence.

What seems to be deducible from this thinking is that any fact should be capable of

being proved either by oral or documentary evidence or by a combination of the two.

3 Introduction to Indian Evidence Act 1872



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If that is the case, non-availability of a material thing cannot be fatal to the proving of

a fact. In my view, it is in this context, that applications in the nature of “productions are

destroyed and the accused may be discharged your honour”, should be viewed.

What are the provisions in our ordinance that deal with Real Evidence? In fact, such

provisions are non-existent save for the passing reference made to Real evidence in section

60 and 165 of the Ordinance.

The first reference to real evidence is found in the 2nd

proviso to section 60 of the

Evidence Ordinance, which states:-

“Provided also that, if oral evidence refers to the existence or

condition of any material thing other than a document the court

may, if it thinks fit, require the production of such material thing

for its inspection”.

The other reference is in section 165. This section deals with a Judge‘s power to

put questions or order production of any document or thing. That part of the Section which

makes reference to real Evidence states: ―The judge may…. order the production of any

document or thing‖…….

What would be of real significance in relation to Real evidence is, the impact the

non-production of material objects may have, in deciding, whether the existence or

nonexistence of a fact has been established.

The first principle that has to be borne in mind is that production of a material

object is not as a rule compulsory or legally required.

The dictum of Abbott C.J in the case of R vs. Hunt4 has been consistently followed

by English Courts with regard to non-production of material objects.

The accused was indicted for conspiracy and in the course of the trial witnesses

spoke from their memory, that flags and banners bearing inscription and devices of sedition

and inflammatory tendency were paraded, but were not produced.

Objection was taken that the flags and banners should have been produced.

Chief Justice Abbott said:-

―I think it was not necessary either to produce the flag or to give

notice to the defendants to produce them. The case requiring the

production of a writing itself will be found to apply to writings of

a very different character… inscriptions used on such occasions

are the public expression of the sentiments of those who bear and

4 1884-1823 AER 450



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adopt them, and have rather the character of the species than of

writings. If we were to hold that the words inscribed on a banner

so exhibited could not be proved without the productions of the

banner, I know not upon what reason a witness should be

allowed to mention the colour of the banner or even to say he

saw a banner displayed, for the banner itself may be said to be

the best possible evidence of its existence and its color…”

In the case of Hockin vs. Ahlquist Brothers Ltd5, the defendants were accused of

infringing certain statutory restrictions on the method of making garments and the offending

garments were not produced at the trial and it was argued on behalf of the defendants that

evidence could not therefore be given by witnesses who had inspected them. The court held

that this argument is erroneous.

The observation made by Viscount Caldecotte L.C.J in the case of Hockin referred

to above, explains the rationale.

“….In my judgment it is much too late, even if it were ever

possible, to suppose that evidence about the nature of

chattels(things) cannot be given by people who have seen them

and speak to their condition. To suppose that there ought to be

produced in court all the articles about which issues are raised in

a great variety of cases would lead to consequences which would

show how impossible the rule would be in practice...”

What then is the impact of Real Evidence as to proof?

Coomaraswamy6points out that there is no rule or principle of law that Real

evidence is best evidence in any sense which compels production of a thing or renders it the

only admissible evidence and goes on to say it is generally not necessary to account for the

no-production of a thing before giving other evidence. The practical impossibility of

producing all material things referred to by witnesses appear to be the most germane for the

rationale aforementioned.

The thing may be nonexistent at the time of the trial due to the perishable nature of

the thing, the transformation of the thing due to effluxion of time, if the murderer has

destroyed the body of a dead person, and the list is endless!.

However, non-production of a thing when it is available and can be produced, may

affect the weight of oral evidence, especially in instances when the thing is in issue. It must

5 1943 2 AER 722 6E.R.S.R Coomaraswamy, The Law of Evidence Vol II



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be stressed that oral evidence cannot be shut out due to non-production of a thing, but

certainly can be a matter for criticism impacting on the weight of the other evidence.

One other issue that needs to be considered is as to whether the court is entitled to

draw an adverse inference as to the credit of the evidence given by a witness. I am of the

view that the court can draw an adverse presumption in terms of Section 114 of the

Evidence Ordinance reads thus-. ―The court may presume the existence of any fact which it

thinks likely to have happened, regard being had to the common course of natural events,

human conduct, and public and private business in their relation to the facts of the

particular case.‖

The illustration ―f” to the above provision of the Evidence Ordinance states that

―Evidence which could be and is not produced would if produced, be unfavorable to the

person who with-holds it”

When a thing is in existence, failure to produce it will adversely impact on the

cogency of other evidence produced in the case. Undoubtedly, in discovering the truth, Real

evidence or material things that is physical non documentary evidence is a potent factor.

However a clear nexus needs to be established between the material objects sought to be

produced at the trail and the fact- in- issue. The Court of Criminal Appeal observed in the

case of The Queen vs. Kularathne7 “We wish to observe that in a criminal case the identity

of productions must be accurately proved by the direct evidence, which is available, and not

by way of inference. There are many known instances where mistakes have been made in

regard to productions in cases.”

It would be prudent to have some oral evidence led in introducing and explaining

the Real evidence that is intended to be produced in the case and there by establish a nexus

between the Real evidence and the facts –in –issue of the case or other relevant fact. For

instance just because a knife has been discovered in consequence of information received

from an accused in a case of stabbing, the part of the accused‘s statement may not be

relevant in terms of Section 27 of the Evidence Ordinance unless a connection is established

between the knife so discovered and the act of stabbing. The prosecution would be entitled

to produce the knife as Real evidence only upon establishing that nexus and not otherwise.

As Best observes8 ―sometimes the most innocent men cannot explain, or give any

account whatever of, facts which seem to criminate them‖.

Author‟s Note: This article is intended only to highlight some misconceptions with regard to Real

Evidence and by no means comprehensive on the subject matter.

7 71 N.L.R 529 8 Best - The principles of Law of Evidence. 12th Edition Sections 202-209



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Judges like Caesar’s Wife

Should Be above Suspicion ?

Seevali Amitirigala1, LL.M (King‟s College

London), Attorney-at-Law

The yardstick of a fair trial measures the success of a legal system2. At the very core of the

fair trial rests the impartiality of the decision maker. Without impartiality, the public

confidence in the legal system will diminish. The rule against bias (nemo iudex in sua

causa) ensures that the decision maker has no interest in the outcome of the proceeding.

This is a rule of Natural Justice, and a fundamental tenet of Public Law. Under this rule, a

judge is disqualified from making judgment /order if the judge is fairly suspected to be of

bias.

Judges are human beings. The social background and their upbringing very often influence a

human‘s thinking. The Realist 3advocates that law consist of the decisions of the judges,

which come into existence by ascertainable facts. Included among these facts are the

personalities of the individual judges, their social environment, and the economic conditions

in which they have been brought up, business interests, trends and movements of thought,

emotions, psychology, and so forth.4

According to natural law human beings are capable of differentiating what is good and bad.

Amongst the naturalists, a secular belief exists that the good and the bad could be derived

from nature through a process of reasoning. While the theological theory of natural law

believes that the good and the bad is derived from the revelations of the god.

The expectation of a bias free decision making process stems from the above-mentioned

good virtues. The Buddha in the Dhammapada states ―the impartial are called the true

justices‖5 Thus the rule against bias finds a place in the ancient philosophies, religions and

moral standards.

1 The author is a lecturer at the Sri Lanka Law College 2 Article 6 Of The ECHR 3 A theory of jurisprudence 4 Jurisprudence by R.W.M.Dias 469 5 The Dhamapada by Ven. K.Sri. Damananda 471.



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The importance of the rule against bias is said to prevail over an act of parliament6.

At the very heart of the discussion of bias is the division of it into financial and

―ideological‖7 interest. Both these interest will make the decision of a decision maker tainted

with bias or suspicion of bias amounting to a disqualification.

What is important to note is that the court does not warrant that bias be proved in order to

invalidate the decision. Instead, it requires merely a suspicion of bias. In other words, there

is no need to establish actual bias8. This rule depicts a minimum standard of justice that is

expected to be maintained by an adjudicatory system.

Financial or Proprietary Interest

If a judge has financial or proprietary interest in the outcome of a judicial proceeding, it

amounts to a breach of the rule of nemo iudex in sua causa. In the case of R vs. Rand,9 it

was held that ‗any pecuniary interest however small in the subject matter of the inquiry does

disqualify a person from acting as a judge in the matter. Further, in the case of Dimes vs.

Grand Junction Canal10

the Lord Chancellor presided in a case involving a company of

which he owned shares. The judgment was set aside. The court held. ―It is of the last

importance that the maxim that no man is to be a judge in his own cause should be held

sacred‖. This will be a lesson to all inferior tribunals to take care not only that if they are

influenced by their personal interest but to avoid the appearance of labouring under such an

influenced.11

The mere existence of a financial interest, even where it does not, in fact result in actual bias

but may present the appearance of bias will be sufficient to disqualify a judge from

adjudication.12

If the financial or pecuniary interest in the outcome of the proceedings is an obvious one it

should have been disclosed, then there is no need to investigate if there was a reasonable

suspicion or likelihood of bias13

it is sufficient for disqualification.

This rule is applicable to magistrates14

as well as arbitrators15

. Thus even public bodies are

bound by this rule. In the case of R v Cambridge Recorder16

the decision maker was

disqualified as he had pecuniary interest by being a member of a local community. If the

6 Egerton Vs Lord Derby (1613) 12 Co.Rep 114. 7 Constitutional,Administrative Law And Human rights 5th Edition By Ian Loveland 8 Neidra Fernando vs Ceylon Tourist Board and Others 2002 2 SLR 169. 9 (1866) L.R. 1 Q.B. 230. 10 (1852) 3HL cas 759, 10 ER 301 HL. 11 10 ER 301 at 315,HL. 12 Constitutional And Administrative Law 6th Edition Hilaire Barnett 683. 13 De Smith‘s JudiciaL Review 6th edition 509. 14 R vs Cheltenham Commissioners 1841 1 Q B 466, 15 Rangers vs Great Western Ry 1854 H.C.L 72. 161857 8 E&B 637



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pecuniary interest arose as a trustee of a body of ratepayers, it was held that he was not

disqualified.17

If the condition upon which the pecuniary interest in the outcome of the

proceeding is removed by a statute the adjudicator will not be disqualified.18

On the contrary

even if a statute removes the condition which amounts to a disqualification, subsequent

developments of the law has stressed the need still to examine if it is possible to give rise to

a possibility of bias.19

If the financial interest in a proceeding does not go beyond the financial interest of any

ordinary citizen it does not disqualify the judge. In the case of Bromley London Borough

Council vs. Greater London Council20

the fact that judges were tax payers and users of

Public Transport did not disqualify them from adjudicating, as it did not amount to a

financial interest.

It is important to note that financial interest in the outcome of a case amounts to automatic

disqualification.21

The trivial nature of the financial interest 22

and the financial interest in the

spouse of the judge does not however automatically disqualify the judge23

.

Ideological and Other Interest

Judges as with any other may exhibit bias by virtue of race, sex, politics, background,

association and opinions.24

However in adjudicating, the judge must be free from all the

above mentioned interest. The judge must give equal attention to the arguments of both

parties and thereafter conclude irrespective of his/her personal views. Whatever his personal

belief, the judge should seek to give effect to the common values of the community, rather

than any sectional system of values to which he may adhere.25

In the Pinochet case26

Lord Browne –Wilkinson defining ideological or other interest held

―the second application of the principle is where a judge is not a party to the suit and does

not have a financial interest in its outcome, but in some other way his conduct or behavior

may give rise to a suspicion that he is not impartial for example because of his friendship

with a party. This second type of bias is not strictly speaking an application of the principle

that a man must not be a judge in his own cause, since the judge will not normally be

himself benefiting, put providing a benefit to another by failing to be impartial.‖

17 R vs Middlesex justices 1908 72 JP 251. 18 R vs Essex justices 1816 5 M & S 513. 19 R vs Barnsley Licensing justices ex p Barnsley And District Licensed Victualler‘s Association 1906 2 QB 167. 20 1983 1 AC 784, 1982 2WLR 62. 21 Constitutional And Administrative Law 6th Edition Hilaire Barnett 683. 22 R Vs Mulvinhill 1990 1 WLR 438 23 Pinocet (no2)( 2000) 1 A C 119 24 Griffith 1997; Devlin , 1978. 25 Bell, 1983 p 8. 26 Pinocet (no2)( 2000) 1 A C 132-133



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In the case Locabail (UK) Ltd vs. Bayfield Properties Ltd27

Bingham CJ suggested factors

that may give rise to a presumption of bias. The factors, which will give rise to a

presumption of bias, are personal friendships, or animosity, close acquaintance and other

―real grounds for doubting the ability of the judge to ignore extraneous consideration,

prejudices, and predilections and bring an objective judgment to bear on the issue before

him.

Factors, which will not give rise to a presumption of bias, are religion, ethnic or national

origin, gender, class, means, sexual orientation of the judge.28

(These factors seems to have

negated the realist thinking that judges act through what is referred to as their

idiosyncrasies)

In the case of Feld vs. Barnett LBC29

the Court of Appeal held that the judge was wrong not

to recuse himself from a trail when he discovered that one of the potential witness was a

long-standing friend. In Gough,30

the fact that a juror was a neighbour of the defendant‘s

brother was held to have been indicative of bias.

In the case of Jones vs. Das Legal Expenses Insurance Co Ltd,31

the Court of Appeal held

that the husband of the judge was a barrister in chambers that undertook work for one of the

parties did not in the circumstances of that case lead to an implication of bias.

Family relationship between judges and counsel does not appear to be exceptionable, but it

has been suggested that judges are disqualified from sitting in cases where near relatives are

witnesses.32

Thus, relationship between the lawyers, the judge and the litigants must be seen in the light

of the facts of each case and the prevailing culture.33

Normally a decision will be invalidated based on bias of the decision maker who presides on

one of his/her own decisions which is now in appeal. This would be depicted as a judge of

his own cause. In general, a decision maker must not participate or indeed give the

impression of participating in such an appeal.34

Further a judge who has given a decision

against a person should refrain hearing any subsequent case of the same party since either

consciously or unconsciously the judge may form a kind of prejudice against a party.35

27 [2000] QB 451. 28 [2000] QB 451. 29 [2004]EWCA Civ 1307. 30 [1993]A.C 646. 31 [2003]EWCA Civ 1071. 32 ―The Independence and Impartiality of the Judges‖ by sir Alfred Denning (1954) 71 S A L J 345-355. 33 De Smith‘s JudiciaL Review 6th edition 521 34 De Smith‘s JudiciaL Review 6th edition 516. 35 Siriwardane Vs Provincial Public Service Commission 2012 BLR 373



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Automatic Disqualification

Direct pecuniary interest automatically disqualifies the decision maker.36

This position was

asserted in the case of R vs. Gough37

this rule was applied strictly38

. Initially it was thought

that automatic disqualification extended only to direct financial bias. However, in the

Pinochet case39

Lord Browne Wilkinson held ―If the absolute impartiality of the judiciary is

to be maintained, there must be a rule which automatically disqualify a judge who is

involved, whether personally or as a director of a company, in promoting the same cause in

the same organization as a party to a suit. There is no room for a fine distinction.‖

Thus after the Pinochet case decision automatic disqualification extends to any bias which

arises in promoting a particular cause. The principle of automatic disqualification has been

extended beyond the Pinochet case in the case of AWG Group Ltd vs. Morrison40

where

Mummery LJ held that because of the connection of the witness and the judge and that fact

that the withdrawal of the witness would not be practically to remove him from the events,

the judge ought to have recused himself under the rule of automatic disqualification.

Confining the automatic disqualification rule to direct pecuniary bias is a thing of the past.

Tests of Bias

In cases where there is no automatic disqualification, it has to be determined whether the

judges‘ or decision-makers interest in the matter is sufficient to justify the disqualification.41

Various tests have been adopted by the court in determining the limits of the principle of

bias. On the one hand, the courts have utilized the real suspicion test of bias. Under this test,

suspicion is derived from the circumstances of the case from the point of view of a

reasonable man.42

On the other hand, the courts have applied, a test known as the real likelihood of bias43

. This

refers to either possibility or probability of bias.

In the case of R vs. Gough,44

it was held that the correct test in determining bias is the ―real

danger of bias‖. In other words upon the consideration of all the circumstances of the case

the court should determine if there is a real danger of bias. In this case, the reasonable

36 Administrative law 10th edition wade and forsyth 381 37 [1993]A.C 646. 38 R vs Cambridge recorder 1857 8 E & B 637. 39 Pinochet no 2 [2000]1 AC 119 40 [2006]EWCA Civ 6. [2006]1 WLR 1163 41 Administrative law 10th edition wade and forsyth 382 42 R vs Sussex justices ex parte McCarthy 1924 1 KB 256, Metropolitan Company properties co Vs Lannon 1969 1

QB 577, R vs Uxbridge justices ex parte Burbridge. The Times june 21 1972. 43 Samarasinghe vs Samarasinghe 1991 (1) SLR 259 44 [1993]A.C 646



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suspicion test of bias was rejected. The real danger of bias test is used from the point of view

of the court and not a reasonable person.

In the Pinochet case, 45

Lord Browne Wilkinson stated that the real danger of bias test needs

to be reconsidered. It was queried that the rule involves the confidence of the public and it

was necessary to evaluate the interest of the decision maker from the point of view of the

public.

The real danger test of bias did not attract support from the Commonwealth jurisdictions. In

Re Medicaments and related cases of goods (No2)46

it was held that according to Article 6 of

the ECHR47

bias needs to be determine objectively upon the consideration of all the

circumstances of the case. Thus, the court found that the real danger test was not an

objective test and therefore needed to be modified. In this case, the court held ―the court

must first ascertain all the circumstances which have a bearing on the suggestion that the

judge was bias. It must then ask whether those circumstances would lead to a fair minded

and informed observer to conclude that there was a real possibility that the tribunal was

bias.‖

In the judgment of the case of Porter vs. Magill48

(now applied by the Sri Lankan courts)49

Lord Hope adjusted the Gough test50

.

The real danger test was replaced by ―fair minded and informed observer‖. The court upon

the investigating of all facts and circumstances of the case must ascertain if there is bias as a

fair minded and informed observer would.

This test shifted the yardstick of bias from the court to an objective fair-minded and

informed observer. This test cannot be applied in a mechanical sense. Much depends on the

fact and circumstances of each case.

Waiver

A party can waive his objection to a decision maker who would instead be disqualified from

adjudicating51

. The objection is said to be waived if the party or his counsel knew of the

interest but continued without the objection been take at the earliest.52

It is appropriate if the

court discloses any interest at the outset of the proceeding. In the case Jones vs. Das Legal

Expenses Insurance Co Ltd53

the Court of Appeal laid down the following guidelines in

dealing with interest and disclosing it. ―The first step involves the judge seeking a

45 Pinochet no 2 [2000]1 AC 119 46 [2001] 1 WLR 700. 47 European Convention On Human Rights 48 [2001]UKHL67,[2002]2 AC 357. 49 H.M.Dingiri Banda Vs The Land Commissioner General And Others CA 293/2007. 50 [1993]A.C 646 51 R (Grant‘s Causeway Etc ,Tramways Co) Vs Antrim Justices[1895]2 IR 603. 52 R vs Richmond justices (1960)24 J P 422. 53 2003 EWCA Civ 1071.



14

replacement if possible, if this is not possible the time should be taken to prepare the full

explanation of the extent of bias that will be explained to the parties. To avoid controversy

and the matter becoming a ―festering sore‖ the explanation should be carefully recorded.

Thereafter a full explanation should be given to the parties as to the matter which might give

rise to possible conflict of interest and the possibilities of moving the case , options should

be explained to the parties if necessary time for reflection may be given to the claimant to

seek advice.‖

Trust and confidence seems to be the hallmark of a good and efficient legal system. The

above analysis establishes that Judges are the guardians of the law and the preservers and the

protectors of it. Judges cannot perform the above tasks unless they are beyond suspicion.

Justice is not a mere perception it is rather an essential standard of a fair legal system.

Judges are the custodians of justice. If they are not impartial it will destroy the public

confidence in the legal system and make a mockery of it.

“Justice is justly represented blind, because she sees

no difference in the parties concerned. She has but one

scale and weight, for rich and poor, great and small”.

William Penn, „Some Fruits of Solitude‟



15

An Introduction to

Bail Jurisprudence

Indika Attanayake, BA (Econ) (Spl), LLM (Colombo)

District Judge, Anuradhapura.

Introduction

The Judicial system of Sri Lanka is a legacy left behind for us by the British who ruled

this country for about 150 years and bade farewell to the country in 1948. The various strata

of our court system, the law we administer therein, the prison, the police etc. are valuable

gifts given by the foreign rule which no one can deny has created an indelible mark on our

present day judicial system.

Bail Jurisprudence which is an integral part imbibed into our judicial system which is also

inherited from the British plays a vital role in the administration of criminal justice in our

country. In criminal justice jurisprudence, the right to bail forms part of the due process of

the law and requires the application of principles of rationality by the courts in order to

temper the rigors of positivism.1 Hence, bail jurisprudence is a very important branch of

criminal jurisprudence. The question of bail always arises when a person is either taken into

custody or produced before the court. Bail jurisprudence which impacts on the individual

and the society, involves, as it administered, the balancing the rights of the individuals and

the rights of the public. Accordingly, this study is very important as it may be helpful to

overcome issues and challenges that may arise when bail proceedings are initiated in the

court house. Justice Bhagwathi, when speaking on bail jurisprudence in India has stated

that ―bail system as we see it administered in criminal courts today, is extremely

unsatisfactory and need drastic changes. In the first place, it is virtually impossible to

translate risk of monetary loss as the only deterrent for the accused from fleeing from

justice. There are several considerations which deter an accused from running away from

justice and risk of financial loss is only one of them and that too not a major one‖.2

1 Samuel Kwesi Amoo, The Bail Jurisprudence of Ghana, Namibia, South Africa and Zambia,

http://forumonpublicpolicy.com/summer08papers/archivesummer08/amoo. 2 R. Sharma, Human Rights and Bail, http://books.google.lk/books.



16

Therefore, in this article I endeavor to highlight and analyze Sri Lankan legal framework

related to bail jurisprudence with other jurisdictions, especially with international law and to

identify the significance of Sri Lankan law related thereto. I further focus on the

jurisprudence related to concept of bail in the administration of criminal justice. I further

submit that in this article, I use the literature review method as methodology to explain the

facts. In this article, I do not put forward my point of views, clarifications or comments. My

effort is to present something to the reader so that he can analyze the facts related to bail

jurisprudence himself.

The Concept of Bail and its Evolution

Bail is the release of a person who is in the custody of police on money or other security

provided to court with the assurance of their appearance in court. Traditionally, bail is

considered as some form of property deposited or pledged to the court of law to persuade it

to release a suspect from jail, on the understanding that the suspect will return for trial.3 In

accordance with the law dictionaries, what is considered by bail is to "procure the release of

a person from legal custody, by undertaking that he/she shall appear at the time and place

designated and submit him/herself to the jurisdiction and judgment of the court."4 According

to the Stroud‘s Judicial Dictionary, bail is when a man taken or arrested for felony, suspicion

of felony or any such case so that he is restrained of his liberty. The law lexicon, in this

context, defines bail as the security for the appearance of the accused person on which he is

released pending trial or investigation.5 Further it is described in the case of Anwer Hussain

v. State of Orissa as follows; 'Bail' remains as undefined term in the Cr.P.C. Nowhere else

the term has been statutorily defined. Conceptually, it continues to be understood as a right

for assertion of freedom against State imposed restraints. Since the U.N. Declaration of

Human Rights of 1948, to which India is a signatory, the concept of bail has found a place

within the scope of human rights. The dictionary meaning of the expression 'bail' denotes a

security for appearance of a prisoner for his release. Etymologically, the word is derived

from an old French verb 'bailer' which means to 'give' or 'to deliver', although another view

is that its derivation is from the Latin term 'bajulara' meaning 'to bear a burden'. Bail is a

conditional liberty; Stroud's Judicial Dictionary (Fourth Edition, 1971) spells out certain

other details. It states: "When a man is taken or arrested for felony, suspicion of felony,

indicted of felony, or any such case, so that he is restrained of his liberty. And being by law

bailable, offered surety to those which have authority to bail him, which sureties are bound

for him to the kings use in a certain sum of money, or body for body, that he shall appears

before the Justices of Goale delivery at the next sessions etc. Then upon the bonds of these

3http://en.wikipedia.org/wiki/Bail 4Black's Law Dictionary, http://www.legalserviceindia.com/articles/bail_poor.htm, Indian System of Bail, Anti

Poor. 5Law lexicon by Ramanth Iyer, http://www.legalserviceindia.com/articles/bail_poor.htm, Indian System of Bail,

Anti Poor.



17

sureties, as in aforesaid, he is bailed that is to say, set at liberty until the day appointed for

his appearance."6

When this topic is discussed, the concept of bail can be traced back to 399 BC. That is when

Plato tried to create a bond for the release of Socrates. The modern bail system evolved from

a series of laws originating in the middle ages in England.7 In medieval England, the sheriffs

originally possessed the sovereign authority to release or hold the suspects or accused. It is

learnt that some sheriffs had exploited the bail for their own gain. Hence the Statute of

Westminster (1275) limited the discretion of sheriffs with respect to the bail. Although

sheriffs still had the authority to fix the amount of bail required, the statute stipulates which

crimes are bailable and which are not.8Magna Carta, in 1215 was the first step taken in the

history of modern legal system in granting rights to citizens. It says that ―No freeman shall

be taken, imprisoned, disseized, outlawed, banished, or in any way destroyed, nor will we

proceed against or prosecute him, except by the lawful judgment of his peers or by the law

of the land."9 In the early 17th century, King Charles ordered noblemen to issue him loans

and those who refused to obey the order were imprisoned. Thereafter five of the prisoners

filed a habeas corpus petition arguing that they should not be held indefinitely without trial

or bail. In the Petition of Right (1628) Parliament argued that the King had flouted Magna

Carta by imprisoning people without just cause.10

The Habeas Corpus Act was introduced in 1679 and it states that ―a Magistrate shall

discharge prisoners from their Imprisonment taking their Recognizance, with one or more

Surety or Sureties, in any Sum according to the Magistrate's discretion, unless it shall appear

that the Party is committed for such Matter or offences for which by law the Prisoner is not

bailable." Later, in 1689, The English Bill of Rights was introduced and it states that

"excessive bail hath been required of persons committed in criminal cases, to elude the

benefit of the laws made for the liberty of the subjects. Excessive bail ought not to be

required."11

This principle was further admitted by the Eighth Amendment to the US

Constitution. The Eighth Amendment was adopted in 1791, as part of the Bill of Rights. It

is almost identical to a provision in the English Bill of Rights of 1689, and it provides that

“excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.‖12

However, there is no provision in both acts to provide or

indicate that a person in custody is entitled to get bail as a right.

6http://www.the-laws.com/Encyclopedia/Browse/ShowCase.aspx?CaseId=514991980000, 7http://www.legalserviceindia.com/articles/bail_poor.htm, Indian System of Bail, Anti Poor, Urvashi Saikumar. 8http://en.wikipedia.org/wiki/Bail 9http://www.archives.gov/exhibits/featured_documents/magna_carta/ 10

http://en.wikipedia.org/wiki/Bail, http://www.legalserviceindia.com/articles/bail_poor.htm, Indian System of

Bail, Anti Poor, Urvashi Saikumar. 11

http://www.legalserviceindia.com/articles/bail_poor.htm, Indian System of Bail, Anti Poor, Urvashi Saikumar 12 http://www.law.cornell.edu/constitution/eighth_amendment



18

Objects of the concept of Bail

The object of keeping a suspected person or an accused in custody during investigation or

trial is not considered as a punishment. Bail jurisprudence is contemplated to serve the

concept of presumption of innocence until the guilt is proved under the due process of law.

―Every man is entitled to the due process of law. This principle is so ancient that can be

traced back to the Magna Carta.”13

By imposing bail conditions such as appearance in the

court in pending investigation or trial also serve to protect the presumption of innocence

until the accused person is charged and convicted in accordance with the due process of

law.14

Further it is established that keeping an accused in detention should not be treated as a

punishment. This rule is upheld in several judgments in different jurisdictions. In the case of

State v. Acheson, the Court has decided that ―an accused person cannot be kept in detention

pending his trial as a form of anticipatory punishment. The presumption of the law is that he

is innocent until his guilt has been established in Court. The Court will therefore ordinarily

grant bail to an accused person unless this is likely to prejudice the ends of justice.‖15

As

stated in the case of Anwer Hussain v. State of Orissa, ―Bail may thus be regarded as a

mechanism whereby the State devolutes upon the community the function of securing the

presence of the prisoners and at the same time involves participation of the community in

administration of justice. Personal liberty is fundamental and can be circumscribed only by

some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to

balance with the security of the community. A balance is required to be maintained between

the personal liberty of the accused and the investigational right of the Police. It must result

in minimum interference with the personal liberty of the accused and the right of the police

to investigate the case. It has to dovetail two conflicting demands, namely, on one hand, the

requirements of the society for being shielded from the hazards of being exposed to the

misadventures of a person alleged to have committed a crime, and on the other, the

fundamental cannon of criminal jurisprudence, viz., the presumption of innocence of an

accused till he is found guilty. Liberty exists in proportion to wholesome restraint, the more

restraint on others to keep off from us, the more liberty we have. The law of bail, like any

other branch of law, has its own philosophy, and occupies an important place in the

administration of justice and the concept of bail emerges from the conflict between the

police power to restrict liberty of a man who is alleged to have committed a crime, and

presumption of innocence in favour of the alleged criminal. An accused is not detained in

custody with the object of punishing him on the assumption of his guilt.‖16

―The concept of

bail is the recognition of the liberty of a person between the time of his arrest and verdict

subject to the condition that he re-appears in Court for his trial until its conclusion or until he

13 Smith V. Attorney General 1984 1SA182,

http://forumonpublicpolicy.com/summer08papers/archivesummer08/amoo.pdf 14 Samuel Kwesi Amoo, The Bail Jurisprudence of Ghana, Namibia, South Africa and Zambia,

http://forumonpublicpolicy.com/summer08papers/archivesummer08/amoo 15 State v. Acheson 1991 2 SA 805, http://forumonpublicpolicy.com/summer08papers/archivesummer08/amoo.pdf 16http://www.the-laws.com/Encyclopedia/Browse/ShowCase.aspx?CaseId=514991980000



19

is sentenced.‖17

Hence, it is important to note here that, in the criminal justice jurisprudence,

the philosophy of concept of bail is always discussed in the context of the presumption of

innocence and the right to liberty.

Further to above, it is crucial to address the society‘s point of view in determining bail.

Samuel Kwesi Amoo in his article on the Bail Jurisprudence, points out how the values of

the society dictate the content of bail jurisprudence.18

Further he quotes, in his article, a

statement made by Stuart S. Nagel in his publication titled ‗The Rights of the Accused in

Law and Action‘ as follows; ―The basic purpose of bail, from the society‘s point of view,

has always been and still is to ensure the accused reappearance for trial. But pretrial release

serves other purpose as well, purposes recognized over the last decade as often dispositive of

the fairness of the entire criminal proceedings. Pretrial release allows a man accused of

crime to keep the fabric of his life intact, to maintain employment and family ties in the

event he is acquitted or given a suspended sentence or probation. It spares the family the

hardship and indignity of welfare and enforced separation. It permits the accused to take an

active part in planning his defense with his counsel, locating witnesses, proving his

capability of staying free in the community without getting into trouble.‖19

On the other

hand, ―the purpose of refusing bail inter alia is to protect the community and to reduce the

likelihood of further offending.‖20

While understanding the objects of bail and its new

phenomenon, it is more important to address the international legal framework relating to

bail.

International Legal Framework relating to the concept of

Bail

Since the right to bail is concerned, there cannot be seen any specific international human

rights standards on the concept of bail. However, there are general provisions relating to the

right to liberty and due process of law in international law. Among them, international

instruments such as the Universal Declaration of Human Rights, The African Charter on

Human and Peoples‟ Rights and the International Covenant on Civil and Political

Rights provide provisions protecting the rights of the personal liberty of the individual both

during the investigation and trial proceedings.

17Attorney General VS Ariyapala and others, CA(PHC)APN No: 133/12, Hon.Justice A.W. Abdus Salam, BAIL-

CONCEPT-APPLICATION, http://www.awasalam.net/2014/04/bail-what-is-it-article-w-salam.html#!/2014/04/bail-what-is-it-article-w-salam.html 18 Samuel Kwesi Amoo, The Bail Jurisprudence of Ghana, Namibia, South Africa and Zambia,

http://forumonpublicpolicy.com/summer08papers/archivesummer08/amoo. 19Stuart S. Nagel in his publication of The Rights of the Accused in Law and Action. (Beverly Hills (Calif) Sage

Publications, 1972), Samuel Kwesi Amoo, The Bail Jurisprudence of Ghana, Namibia, South Africa and Zambia,

http://forumonpublicpolicy.com/summer08papers/archivesummer08/amoo. 20Attorney General VS Ariyapala and others, CA(PHC)APN No: 133/12, Hon.Justice A.W. Abdus Salam, BAIL-

CONCEPT-APPLICATION, http://www.awasalam.net/2014/04/bail-what-is-it-article-w-

salam.html#!/2014/04/bail-what-is-it-article-w-salam.html



20

In accordance with the Universal Declaration of Human Rights, the provisions have been

adopted to protect the right to personal liberty of the individuals. Those articles are

reproduced as follows;

Article 9

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10

Everyone is entitled in full equality to a fair and public hearing by an

independent and impartial tribunal, in the determination of his rights and

obligations and of any criminal charge against him.

Article 11

(1) Everyone charged with a penal offence has the right to be presumed innocent

until proved guilty according to law in a public trial at which he has had all the

guarantees necessary for his defence.

(2) No one shall be held guilty of any penal offence on account of any act or

omission which did not constitute a penal offence, under national or

international law, at the time when it was committed. Nor shall a heavier penalty

be imposed than the one that was applicable at the time the penal offence was

committed.21

The International Covenant on Civil and Political Rights provides provisions for

international standards as follows;

Article 9

1. Everyone has the right to liberty and security of person. No one shall be

subjected to arbitrary arrest or detention. No one shall be deprived of his liberty

except on such grounds and in accordance with such procedure as are established

by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for

his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly

before a judge or other officer authorized by law to exercise judicial power and

shall be entitled to trial within a reasonable time or to release. It shall not be the

general rule that persons awaiting trial shall be detained in custody, but release may

21 http://www.un.org/en/documents/udhr/



21

be subject to guarantees to appear for trial, at any other stage of the judicial

proceedings, and, should occasion arise, for execution of the judgment.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to

take proceedings before a court, in order that that court may decide without delay

on the lawfulness of his detention and order his release if the detention is not

lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an

enforceable right to compensation.

Article 10

1. All persons deprived of their liberty shall be treated with humanity and with

respect for the inherent dignity of the human person.

2. (a) Accused persons shall, save in exceptional circumstances, be segregated from

convicted persons and shall be subject to separate treatment appropriate to their

status as un-convicted persons;

(b) Accused juvenile persons shall be separated from adults and brought as

speedily as possible for adjudication.

3. The penitentiary system shall comprise treatment of prisoners the essential aim

of which shall be their reformation and social rehabilitation. Juvenile offenders

shall be segregated from adults and be accorded treatment appropriate to their age

and legal status.22

Under the African Charter on Human and Peoples‘ Rights, following provisions are

incorporated.

Article 6

Every individual shall have the right to liberty and to the security of his person. No

one may be deprived of his freedom except for reasons and conditions previously

laid down by law. In particular, no one may be arbitrarily arrested or detained.23

Under international law, the parties to international conventions are States, the United

Nations organization and other international organizations. Hence, international instruments

such as conventions and treaties become binding on member states to introduce new local

laws to meet the requirements of international standards and norms either through the

constitutional changes or legislative incorporation. ―However, it must be added that under

international law, as a general rule, there is no formal obligation on States to ratify a

particular international covenant or a protocol.‖24

22http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx 23http://www.achpr.org/instruments/achpr/#a6 24 Samuel Kwesi Amoo, The Bail Jurisprudence of Ghana, Namibia, South Africa and Zambia,

http://forumonpublicpolicy.com/summer08papers/archivesummer08/amoo.



22

A Comparative Analysis on Sri Lankan Legal Framework on

Bail

In Sri Lanka, the procedural law in respect of most of criminal offences is contained in the

Code of Criminal Procedure Act No.15 of 1979 (hereinafter referred as Cr.P.C.). Under the

said act, there is no provision to define the term ‗bail‘, although the terms bailable offence

and non-bailable offence have been introduced. The term ‗bail‘ has been defined in the case

of Kanapathy Vs Jayasinghe as ―the release or setting at liberty of a person arrested or

imprisoned either on his own recognizance or upon others becoming sureties for his

appearance on a future date‖.25

Prior to the enactment of the Bail Act No. 30 of 1997, Cr.P.C

applied in respect of bail applications. Currently, the Bail Act applies and therefore I do not

detail the provisions in the Cr.P.C at this juncture.

The Constitutional measures which have been introduced into Sri Lankan legal system by

the 1978 Constitution would meet the international requirements to protect the right to

personal liberty and the presumption of innocence. Article 13 of the Constitution of 1978

provides the right to freedom from arbitrary arrest, detention and punishment, and

prohibition of retrospective penal legislation. Article 13 of the Constitution is reproduced as

follows;

13. (1) No person shall be arrested except according to procedure established by law. Any

person arrested shall be informed of the reason for his arrest.

(2) Every person held in custody, detained or otherwise deprived of personal liberty shall be

brought before the judge of the nearest competent court according to procedure established

by law and shall not be further held in custody, detained or deprived of personal liberty

except upon and in terms of the order of such judge made in accordance with procedure

established by law.

(3) Any person charged with an offence shall be entitled to be heard, in person or by an

attorney-at-law, at a fair trial by a competent court.

(4) No person shall be punished with death or imprisonment except by order of a competent

court, made in accordance with procedure established by law. The arrest, holding in custody,

detention or other deprivation of personal liberty of a person, pending investigation or trial,

shall not constitute punishment.

(5) Every person shall be presumed innocent until he is proved guilty.

Under the bail system, ―there is the phenomenon of constitutional bail.‖26

Even in Sri Lanka,

the constitutional bail concept is applied by the Supreme Court. For example, the Supreme

Court of Sri Lanka applied this concept for those who were detained under the Immigrants

and Emigrants Act for a long period of time. This model is applied by the other jurisdictions

such as Zambia and Ghana as well. The said provision of the Constitution deals with the

25Kanapathy Vs Jayasinghe 66 NLR 549 26 Samuel Kwesi Amoo, The Bail Jurisprudence of Ghana, Namibia, South Africa and Zambia,

http://forumonpublicpolicy.com/summer08papers/archivesummer08/amoo.



23

right to liberty and the presumption of innocence. In the case of Queen v. Liyange, the court

has emphasized on the relationship of bail to the presumption of innocence and the right to

personal liberty as follows; ―This Court will never cease to safeguard the liberty of the

citizen. The favour shown to freedom will always influence judges to approach questions

affecting the liberty.‖27

In 1997, the Bail Act was adopted and it came into force in same year. It sets out the current

and the basic legal framework relating to bail prevailing in Sri Lanka. In accordance with

the preamble, the intention of the Legislature is to consolidate the law relating to bail, to

introduce the new concept of anticipatory bail and to adopt provisions for matters connected

thereto. Under the section 2 of the Bail act, granting bail is the guiding principle. Refusal of

bail is the exception. In the case of Anuruddha Ratwatte v. Attorney General,28

the

Supreme Court has emphasized on the section 2 of the Bail Act. The same principle has

been laid down in England by the Bail Act of 1976. It lays out that there is a general right to

bail, except as provided for under the First Schedule of the Act. Similar view has been taken

by Indian judges as well. In the case of Moti Ram and Others. v. State of Madya

Pradesh, Justice Krishna Iyer has emphasized that the judges should be more inclined

towards bail and not jail.29

It is well established rule that bail should not be punitive. As aforesaid, mainly offences are

classified into ―bailable‖ and ―non-bailable‖ offences under the Criminal Procedure Code

and the Bail Act. That depends on whether the offence committed is bailable as of a right or

not. Under section 4 of the Bail Act, a person accused or suspected for a bailable offence is

entitled to bail subjected to the provisions hereinafter provided in the Bail Act. In the case of

OIC Nittambuwa v. Pathirana,30

the Court has taken the view that wherever the offence

committed is bailable, the court can make an order releasing the suspect on bail. Under

section 5 of the Bail Act, where an accused person is arrested or detained for a non-bailable

offence, his release on bail is at the discretion of the court of law and subject to the

provisions of common guidelines. However, in accordance with the provisions of section 13

of the Bail Act, a suspected person shall not be released on bail by the magistrate courts if

there are reasonable grounds to believe that he is guilty of committing an offence punishable

with death or life imprisonment.

Before the enactment of the Bail Act, there were no statutory provisions which laid down

the guiding principles for releasing a suspect on bail at the discretion of the court. Under the

earlier law, the court relied on the case laws when determining bail applications. In the case

of Rex v. Toussaint,31

the Court adopted three grounds for consideration when determining

27Queen v. Liyange 65 NLR 289 28 2003 (2) SLLR 39 29

Moti Ram and Others. v. State of Madya Pradesh,AIR 1978 SC 1594,

http://www.refworld.org/docid/3f4b8d657.html 30 1998 1 SLLR 84 31 12 NLR 65



24

bail at its discretion. They are as follows; 1. Nature of offence 2. Seriousness of the

sentence 3. Possibility of absconding.32

By the adoption of the Bail Act in 1997, the statutory provisions were introduced on how to

exercise the judicial discretion in determining bail in respect of bailable or non bailable

offences. Section 14 of the Bail Act provides the guidelines applicable for all cases in

granting or refusing bail. Section 14 of the Bail Act is reproduced as follows;

14. (1) Notwithstanding anything to the contrary in the preceding provisions of this Act,

whenever a person suspected or accused of being concerned in committing or having

committed a bailable or non-bailable offence, appears, is brought before or surrenders

to the court having jurisdiction, the court may refuse to release such person on bail or

upon application being made in that behalf by a police officer, and after issuing notice

on the person concerned and hearing him personally or through his attorney-at-law,

cancel a subsisting order releasing such person on bail if the court has reason to

believe :"

(a) that such person would "

(i) not appear to stand his inquiry or trial;

(ii) interfere with the witnesses or the evidence against him or otherwise

obstruct the course of justice; or

(iii) commit an offence while on bail; or

(b) that the particular gravity of, and public reaction to, the alleged offence may

give rise to public disquiet.

(2) Where under subsection (1), a court refuses to release on bail any person

suspected or accused of being concerned in or having committed an offence or

cancels a subsisting order releasing such person on bail, the court may order such

suspect or accused to be committed to custody.

(3) The court may at any time, where it is satisfied that there has been a change in

the circumstances pertaining to the case, rescind or vary any order made by it under

subsection (1).

In the case of Anuruddha Ratwatte v. AG, the Court has addressed the applicability of

section 14 of the Bail Act. Whereas the cardinal principle that bail should not be treated as a

punishment is settled in Sri Lankan legal system, these guidelines play a vital role in

granting or refusing bail.

At this juncture, it is important to consider the guide lines of other jurisdictions since the

analysis is comparative. The guiding principles titled as ‗SUBORDINATE COURTS‟

32 Indatissa, Kalinga, Law Relating to Bail in Sri Lanka, 1st Edition June 2005



25

BAIL GUIDELINES‟33

have been adopted in Singapore for determination of bail

application. Those guidelines appear very broad and cover all areas which the courts should

consider in granting bail on each case. Subsection (II) of the said guidelines under the

heading of ‗Principles and Methodology in Granting Bail‟ is reproduced as follows;

―In determining whether to grant bail to an accused, the factors that the court would consider

include the following;-

(a) Probability of appearance at trial

(i) whether the accused has a fixed place of abode within the jurisdiction;

(ii) whether the accused is domiciled or is a permanent resident in the country;

(iii) the nature and seriousness of the offence, the punishment prescribed and the likely

sentence to be imposed upon conviction i.e. whether there is a provision for a fine or

mandatory custodial

sentence or other punishment such as caning;

(iv) the nature and the strength of the evidence in support of the charge e.g. where the

evidence comprises confessions, admissions, material eye-witness accounts, or is supported

by medical or scientific evidence such as HSA reports;

(v) whether the accused, if released on bail, is likely to abscond;

(vi) whether the accused has made an attempt to leave the jurisdiction without the

permission of the court or the investigating officer;

(vii) the extent of the accused‘s ties and roots in Singapore.

(b) Likelihood of interference with the judicial process

(i) whether there is evidence of a likelihood that the accused will tamper with prosecution

evidence;

(ii) whether the accused is likely to procure false evidence either in support of his defence or

to exonerate other accused persons involved in the commission of the offence;

(iii) whether the accused is likely to convey information acquired during the investigations

to other accused persons not yet arrested or charged for the offence.

(c) Public safety considerations

(i) where offences against the person are involved, whether the attack was deliberate,

provoked, triggered by frustration or motivated by vengeance.

(ii) whether the attack was by a group/secret society, gang or triad;

(iii) the nature of violence inflicted on the victim and the extent of injuries suffered;

(iv) the type of weapon or corrosive substance used;

(v) whether the accused is likely to repeat the offence while on bail;

33SUBORDINATE COURTS‘ BAIL GUIDELINES issued by Bail Administrator, Bail Centre, Subordinate Courts

1 December 2005, https://app.statecourts.gov.sg/Data/Files/File/BailGuidelines.pdf



26

(vi) whether the accused has displayed a propensity towards violence and can be regarded

(possibly after psychiatric assessment from IMH) as one who has no respect for life and

property;

(vii) the number of charges preferred against the accused;

(viii) whether the accused is a persistent offender with previous criminal convictions for

serious or violent offences. In such cases, the previous conviction or record of the accused

shall not be

referred to in a manner that will prejudice his or her right to a fair trial. Furthermore, the

court may in its discretion either hear the proceedings in camera or exclude from the

proceedings all those other than the officers of the court, persons directly concerned with the

proceedings and the press and such other persons if any as the court may permit to remain. It

should be noted that when the press is allowed to remain, no information relating to the

criminal record of the accused applying for bail should be published in a written publication

or be broadcast.

(d) Preparation of the defence

(i) whether in the circumstances of the case, and the nature of the alleged offence, a refusal

of bail would deprive the accused of the opportunity to adequately prepare his defence;

(ii) whether there is a likelihood of the prosecution withdrawing or reducing the charges;

(e) Likelihood of obtaining further evidence by remand

(i) whether sufficient evidence has been obtained to raise a reasonable suspicion that the

accused may have committed the alleged offence and it appears likely that further evidence

may be obtained by investigators during a short period in remand;

(ii) whether the period of remand requested by the police is reasonable in the circumstances

of the case.

(f) Humanitarian grounds

(i) the long period of detention of the accused and probability of further period of delay in

the accused‘s trial;

(ii) the likelihood of the trial being protracted resulting in a long period in remand;

(iii) age, sex and state of health of the accused in remand.

(g) Other factors

(i) whether the accused had previously been refused bail by another court and is awaiting

trial;

(ii) the accused‘s previous conduct and behaviour in court;

(iii) whether the principal accused, accomplices and co-accused (if any) have been offered

bail;

(iii) whether the accused surrendered himself to the authorities;

(iv) whether the accused co-operated with the authorities and assisted in the investigation to

recover evidence or misappropriated other property;



27

(v) whether the accused had made restitution in part or in full;

(vi) whether the accused had shown any remorse for the commission of the offence/s;

(vii) whether the accused is addicted to a controlled drug or other intoxicating

substance/s.‖34

Accordingly, it appears that many grounds are to be considered in determining bail at

judicial discretion. Hence, granting or refusing bail should be considered very carefully as

the concept of bail is always related to the concept of presumption of innocence and the

right to personal liberty as aforesaid. In Sri Lanka, the courts are mainly guided by the case

laws on the issues relating to granting or refusing bail. The judgments of apex courts have

directed as to how judicial discretion should be exercised in determining bail. The judicial

discretion has been discussed in the case of Queen v. Liyanage.35

In the cases of S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat,36

the

Court voiced the bail jurisprudence of South Africa. The granting bail is the guiding

principle in South Africa as well. In accordance with the judgment, the refusal to grant bail

and the detention of an accused in custody shall be in the interests of justice where one or

more of the grounds in the said case are established.

Further, in this article, it is important to address the area of bail amounts. In the case of In

Re Athurupane, the Court held that ―the fixing of bail calls for the exercise of judicial

discretion and for-the most anxious care in each case.‖37

Section 8 to 12 of the Bail Act deal

with the nature of Bail bonds, liability of sureties, and the quantum of bail.38

Section 7 of the

Bail Act provides the ‗manner in which a person suspected or accused of a bailable or non-

bailable offence may be released on bail.‘39

Under section 11 of the Bail Act, amount of bail

shall be fixed with due regard to the circumstances of the accused and shall not be excessive.

The section provides three factors, i.e. nature of the offence, punishment for the offence, the

means of the suspect to be considered in fixing the amount of bail. The factors which should

be taken into consideration in granting bail were discussed in the case of Queen v.

Liyanage. In the case of Delaney v. Shobe,40

―The courts have indicated certain factors that

should be taken into consideration in fixing bail. These are: (1) ability of the accused to give

bail, (2) nature of the offense, (3) penalty for the offense charged, (4) character and

reputation of the accused, (5) health of the accused, (6) character and strength of the

34SUBORDINATE COURTS‘ BAIL GUIDELINES issued by Bail Administrator, Bail Centre, Subordinate Courts

1 December 2005, https://app.statecourts.gov.sg/Data/Files/File/BailGuidelines.pdf 35Queen v. Liyange 65 NLR 289 36

S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat (CCT21/98, CCT22/98 , CCT2/99 , CCT4/99)

[1999] ZACC 8; 1999 (4) SA 623; 1999 (7) BCLR 771 (3 June 1999) , 1999 (4) SA 623,

http://www.saflii.org/za/cases/ZACC/1999/8.html 37 In Re Athurupane 51 NLR 21 38 Indatissa, Kalinga, Law Relating to Bail in Sri Lanka, 1st Edition June 2005 39Hon.Justice A.W. Abdus Salam, BAIL-CONCEPT-APPLICATION, http://www.awasalam.net/2014/04/bail-

what-is-it-article-w-salam.html#!/2014/04/bail-what-is-it-article-w-salam.html 40218 Or. 626(1959)



28

evidence, (7) probability of the accused appearing at trial, (8) forfeiture of other bonds, (9)

whether the accused was under bond in other cases, and (10) whether the accused was a

fugitive from justice when arrested. See cases cited in Annotation, 72 ALR 801.‖41

In

addition to the above, the bail principles have been discussed in Indian cases such as

Maneka Gandhi v. Union of India,42

State of Rajasthan v. Balchand,43

Hussainara

Khatoon and others v. Home Secretary, State of Bihar.44

The guiding principles titled as ‗SUBORDINATE COURTS‟ BAIL GUIDELINES‟ have

been adopted as aforesaid in Singapore for determination of bail application. Subsection

(III) of the said guidelines deals with the ‗Bail Amounts‘ and it directs that ―The suggested

bail quanta listed below are intended only to serve as general guidelines. They may be

adjusted upwards or downwards depending on the facts and circumstances of the case,

bearing in mind considerations such as:

a) the seriousness of the offence(s) – including the likely sentence upon

conviction and any mandatory sentences;

b) the number of charges involved;

c) the accused‘s antecedents (if any);

d) the accused‘s individual circumstances, including his means of raising bail;

e) where the offence relates to property, the benefits obtained or loss caused by

the accused, including the value of any unrecovered property;

f.) whether the accused surrendered himself.

The court will also evaluate, based on available evidence, the likelihood of the accused

absconding if he is released on bail and consider what would be an appropriate amount to

secure his attendance.‖45

―In ordering bail and deciding on the quantum of bail the Court

should look into all aspects of the matter and exercise the discretion vested in them

judicially. Undoubtedly, the application of the concept pertaining to the grant of bail,

cancellation, forfeiture etc. requires a greater command of the legal principles. It is an

established principle of law that the grant of bail or refusal is a judicial discretion and not a

mere discretion.‖46

41

Delaney v. Shobe218 Or. 626 (1959), http://law.justia.com/cases/oregon/supreme-court/1959/218-or-626-3.html 42AIR 1978 SC 571 43 AIR 1977 SC 2447 44 AIR 1979 SC 1360 45SUBORDINATE COURTS‘ BAIL GUIDELINES issued by Bail Administrator, Bail Centre, Subordinate Courts

1 December 2005, https://app.statecourts.gov.sg/Data/Files/File/BailGuidelines.pd 46Hon.Justice A.W. Abdus Salam, BAIL-CONCEPT-APPLICATION, http://www.awasalam.net/2014/04/bail-

what-is-it-article-w-salam.html#!/2014/04/bail-what-is-it-article-w-salam.html



29

Conclusion

The concept of bail plays a vital role in the administration of criminal justice. Since this

concept directly deals with the concept of presumption of innocence and the right to liberty,

the court is duty bound to consider the legal and guiding principles in the criminal justice

jurisprudence in granting or refusing bail. The discretion vested in the judiciary should be

exercised judicially in determining bail for a person who has committed an offence either

bailable or non-bailable.

―For there is but one essential justice which cements society, and one law which establishes

this justice. This law is right reason, which is the true rule of all commandments and

prohibitions. Whoever neglects this law, whether written or unwritten, is necessarily unjust

and wicked.‖

― Marcus Tullius Cicero, On the laws

http://www.goodreads.com/author/show/13755.Marcus_Tullius_Cicero

http://www.goodreads.com/work/quotes/39945461



30

Domestic Laws and

The 1958 New York Convention1

Domenico Di Pietro2

Unlike other successful international conventions on arbitration, the New York

convention is not a self-contained instrument. It is permeated by several domestic laws that

may be of relevance at different stages of the arbitral process. As is well known at times the

Convention is clear about (i) whether a certain issues is to be dealt by a domestic law and

(ii) if that is the case, which law should be looked at. On certain issues, unfortunately, the

Convention is silent both on whether a domestic law should be applied and which one such

law should be. This paper is aimed at identifying the main issues that the Convention leaves

it open for domestic laws to regulate.

Introduction

It is well known that the 1958 New York Convention on the Recognition and Enforcement

of Arbitral Awards Rendered Abroad is one of the most successful International multilateral

treaties.3 While it is not the scope of this paper to praise qualities and achievements of the

Convention it must not be forgotten that the Convention has played a fundamental role in

making arbitration the most popular means of dispute resolution in international trade.

The New York Convention, despite its undeniable success, is not a perfect tool. Some

aspects of the Convention have indeed been the objects of heated debate that does not seem

to subsidise. There are indeed a number of issues relating to the very structure and the

1This paper is a combined collection of thoughts first published in the following two articles: Applicable Laws Under

the New York Convention, in ―Conflicts of Law in International Commercial Arbitration‖, Franco Ferrari and

Stefan Kröll eds 2011 and Forum Shopping and Enforcement of Foreign Arbitral Awards: Notes on Public Policy

in ―Forum Shopping in the International Arbitration Context‖Franco Ferrari ed 2013. 2Lecturer, International Arbitration, University of Rome ―Roma Tre‖, Avvocato (Italy) and Solicitor (England and

Wales). International Arbitration Group, Freshfields Bruckhaus Deringer. The views contained in this article are

the author‘s only and should not be attributed to the institutions which the author is affiliated to. 3 Generally on the New York Convention see inter alia, Enforcement of Arbitration Agreements and International

Arbitral Awards: The New York Convention in Practice, Emmanuel Gaillard & Domenico Di Pietro eds,2008.



31

mechanics of the Convention that surprisingly as one might suggest after fifty years – have

not been thoroughly analysed and fully understood.

The Convention‘s objective of building an international legislative network for the

recognition and enforcement of arbitral awards rendered abroad could only be achieved by

attracting the highest possible number of Contracting States.

In order to attain broad consensus, the draftsmen of the Convention had to devise a legal

instrument which would facilitate international arbitration without clashing with the

different fundamental legal principles of each Contracting State. Their task, therefore, was

one of ensuring compatibility between furthering the objectives of international arbitration

and protecting the public policies of the Contracting States. Such compatibility was achieved

in the final draft of the Convention by performing what could be defined as a ―balancing

act‖. On one hand, the Convention imposes on the Contracting States a general obligation to

enforce arbitration awards as well as arbitration clauses and agreements. On the other hand,

it creates an exception to this obligation in circumstances where recognition and

enforcement are incompatible with the fundamental principles of law at the place of

enforcement.4

The adopted system is detectable by looking at the text of the main provisions of the

Convention. The tension is indeed rather evident between the goal of establishing an

arbitration-friendly, harmonising system and the concern that the Convention would allow

most, if not all, legal systems to mould the application of the Convention to render it

compatible with local rules and therefore suitable for ratification.

This system seems to be responsible for the perceived inconsistency in the application of the

Convention. However at a closer analysis, it seems that, at least in the majority of cases, the

issue is one of different degrees of application – which is allowed by the Convention itself –

rather than one of inconsistency. This is not to say that misapplication or misinterpretation

of the Convention has never occurred in the past and it will never occur again in the future.

What is important to stress however is that:

– most of the decisions that are pointed at as being inconsistent with the

Convention are, in fact, the consequence of the above-mentioned structural

device adopted in the Convention;

– the decisions that genuinely seem to misinterpret or misapply the Convention

are a tiny percentage of the remarkable number of cases throughout the world

where the Convention is duly applied and abode by.

4 An example of such a technique can be found at Article I (the Reservations), Article II (on arbitrability and

substantial validity of the arbitration clause) and Article V. See on this subject Domenico Di Pietro, Are the

Principles of the New York Convention realised consistently? in ―Achieving Justice Through International

Arbitration‖, Report of the Society for Advanced LegalStudies,2004.



32

As it has been mentioned above, the system adopted by the drafters of the Convention, to

make it appealing to the highest number of States, can be identified in the textual thread of

the Convention‘s core provisions. Such provisions will be briefly identified and analysed in

the following chapter.

One of these challenging issues is the rather surprising question about what is an arbitral

award falling within the scope of the New York Convention. Indeed the question is even

broader. Before we come to that point we might perhaps ask ourselves what should be

regarded as ―arbitration‖ for the purposes of the New York Convention. In other words,

what is the means of dispute resolution which can produce a decision falling within the

scope of the Convention? How do we establish this? Should we look at the text and the spirit

of the convention or by looking at a domestic law?

The New York Convention is not a perfect instrument. However, it is much better an

instrument than some think. What is sometimes regarded as inconsistency and uncertainty is

in fact the result of skilful legal craftsmanship which may be difficult to replicate should the

project of a new New York Convention ever be attempted. The Convention was indeed built

knowing that in order to succeed it had to find a place for the different legal backgrounds

and domestic constraints of such variety of Contracting States. By simply looking at the

number (and variety) of Contracting States one should wonder whether it would be possible,

today, to re-create an instrument of such breath and scope.

The Convention made its Contracting States to respect and protect international arbitration

without having to abdicate the core principles of their respective legal cultures.

This reflection was perfectly described in one of the works of the late Dr Robert Briner

where the preeminent lawyer wrote:

Rather than attempting the impossible, the conference sensibly

sought to address the most pressing practical problems experienced

by the post war business world. In so doing, it took the path of

moderation and pragmatism by producing an exhaustive list of basic

requirements for the recognition and enforcement of awards. It gave

effect to the will of the parties without asking States to renounce

their legal systems. This approach may have been modest and

cautious, but it was above all judicious, for not only did it ensure the

effectiveness and acceptability of the convention but also gave it a

far-reaching legacy.5

5Robert Briner and Virginia Hamilton,The Creation Of An International Standard To Ensure The Effectiveness Of

Arbitration Agreements And Foreign Arbitral Awards, in ―Enforcement of Arbitration Agreements and

International Arbitral Awards: The New York Convention in Practice‖, Emmanuel Gaillard & Domenico Di

Pietroeds, 2008.



33

1. What Constitutes an Arbitral Award Under the New York

Convention?

1.1 Setting the scenario

What constitutes an arbitral award under the New York Convention is an issue that has been

sporadically taken into account. However, it is arguable that this issue has never received the

interest that it actually deserves.

An attempt was made during the negotiation of the Convention by the delegate for Israel.

The definition proposed read as follows:

Arbitral award” means an award made by an arbitral body, whether

permanent or constituted for any particular case, in pursuance of an

agreement in writing by which the parties named in the award have

voluntarily submitted to the arbitration by such arbitral body of any existing

or future disputes between them in any matter susceptible of arbitration.6

The absence of any relevant definition in the draft convention as to what constitutes an

arbitral award prompted the following interesting comment by the Austrian delegate:

The term arbitral award is not defined. Consequently, it will depend on the

law of the State in which it is to be enforced whether a particular decision is

to be regarded as an arbitral award. From the practical point of view, it is

probably not necessary to define the term in the text of the convention … The

convention should perhaps be expanded to include arbitral settlements.7

No definition was eventually adopted. The only indication as to what may constitute an

award under the Convention, is the less-than-helpful (in this respect) provision of the

Convention‘s Article I (2) according to which:

The term „arbitral awards‟ shall include not only awards made by arbitrators

appointed for each case but also those made by permanent arbitral bodies to

which the parties have submitted.

The little information contained in the Convention and in the Travaux Préparatoires has left

the question as to what constitutes an arbitral award unresolved. This lack of definition,

however, is not a peculiarity of the Convention. Indeed, even the UNCITRAL Model Law

refrains from describing what constitutes an arbitral award even though the adoption of a

definition was considered during the drafting stages. The proposed definition stated that:

6Travaux Préparatoires, E/CONF. 26/L, 18, 26 May 1958, available on-line at http://

www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_travaux.html. 7Travaux Préparatoires, E/2822, 31 January 1956, available on-line at http://

www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_travaux.htm.



34

[…] „award‟ means a final award which disposes of all issues submitted to

the arbitral tribunal and any other decision of the arbitral tribunal which

finally determine[s] any question of substance or the question of its

competence or any other question of procedure but, in the latter case, only if

the arbitral tribunal terms its decision an award.8

However, because the suggested text gave rise to considerable disagreement – especially

with regard to the issue as to whether decisions on the tribunal‘s own jurisdiction amounted

to an arbitral award – the attempt to codify a definition was eventually abandoned.

As it has been mentioned above, it has been discussed whether the analysis aimed at

establishing the nature of both a given dispute resolution process and the decisions taken

therewith should be carried out with reference to the relevant domestic law(s) or whether an

analysis centred on the international nature as well as the harmonisation goals of the

convention should be preferred.

More precisely, on one hand, it has been argued that the nature of a dispute resolution

process should be identified and assessed with reference to the provisions of the law which

creates and regulates such process. This law may clarify, for example, either expressly or

implicitly, whether the process undertaken by the parties should be considered as a true

alternative to the jurisdiction of national courts and therefore whether such process is

capable of producing decisions which may be enforced abroad under the convention.

On the other hand, other authors believe that the analysis should be carried out with

predominant focus on the scope and purpose of the convention rather than the provisions of

the relevant domestic law. This latter point of view is certainly appealing and does not seem

to be inconsistent with the approach advocated in a considerable number of cases, according

to which the convention should be interpreted and enforced having in mind its

‗international‘ character and the need to refrain from any inflexible interpretation which may

be suggested under the provisions of domestic law.

The solution to this question is perhaps found in between the two mentioned views. It seems

possible to agree with the view that the convention, as an international legal instrument,

should be interpreted having in mind its peculiar nature and scope in accordance with the

rules for the interpretation of international conventions provided by the 1969 Vienna

Convention on the Law of Treaties. This view, however, should not automatically rule out

any reference to the relevant domestic law(s). It is here suggested that – in assessing the

nature of a dispute resolution process and the nature of orders issued therewith – domestic

courts should form an independent view on the nature of both the process and the relevant

award, irrespective of the definitions or categorisations employed in the jurisdictions where

the award was made.

8 See United Nations Commission on International Trade Law, Report of the Working Group on International

Contract Practices on the Work of its Seventh Session, UN Doc. A/CN.9/246, 6 March 1984.



35

The domestic courts may, however, also look at the provisions of the relevant domestic law

and use them as ‗facts‘. Such facts would obviously provide a strong indication as to the

actual nature of the means of dispute resolution under analysis. However, they should bear

neither binding force nor a definitive answer to the problem. Admittedly, it may be possible

to object that the acceptance of this view would provide the courts at the place of

enforcement with broad powers which might be inconsistent with or could go beyond the

provisions of Article V of the convention according to which enforcement can only be

denied only in the presence of one or more of the circumstances described under the same

Article. To this objection it may however be possible to reply that the limitation imposed

through Article V presupposes the existence of a genuine arbitral award falling within the

scope of the Convention.

1.2 Identification of arbitral tribunals: the ‘alternativity’ test

As we have mentioned above, the first step towards the identification of the decisions which

can be enforced under the New York Convention, should be the identification of the judicial

bodies which qualify as proper arbitral tribunals. As is well known, disputes can be settled in

many different ways other than by court proceedings. Indeed, international dispute

resolution practice has experienced, for example, a remarkable surge in ADR processes such

as mediation and conciliation. These processes can bear striking similarities to arbitral

proceedings. However, there seems to be general agreement that the Convention is only

intended to cover dispute resolution processes which can be regarded as a truly definitive

alternative to the jurisdiction of domestic courts and whose awards have the same legal force

as a court judgment. It follows that the Convention should not apply to orders and decisions

rendered in processes which are not a genuine alternative to the jurisdiction of the domestic

courts. This apparently comfortable path of analysis might in fact prove rather perilous not

least because the terminology employed in practice can be confusing. Mediation

proceedings may well be described as arbitrations and the mediators could well be described

as arbitrators. However, if the process as a whole does not provide the individual in charge

of the process with the power finally to settle the dispute through the delivery of a binding

and enforceable decision characterised by the same status as a court judgment, then

Convention should not be applied.

The uncertainty is sometimes striking and unexpected. In more than one occasion the

question whether final decisions rendered by adjudicators under English law could be

enforced under the New York Convention received no answer. As is well known in the

United Kingdom the Housing Grants, Construction and Regeneration Act (the ‗Act‘)

provided amongst other things for a fast mechanism (adjudication) for the settlement on an

interim basis of disputes arising out of construction contracts. The Act requires the decisions

of adjudicators to be enforced pending the final determination of disputes by arbitration or

litigation, depending on the choice made by the parties in the relevant contract.

Under normal circumstances is, therefore, clear that the jurisdiction of the adjudicator is not

―genuinely alternative‖ to that of domestic courts. There are however circumstances in the



36

presence of which the nature of the decision of the adjudicator is not as clear-cut. Indeed, the

Act provides the parties with the option to agree that the decision of the adjudicator would

finally determine the dispute between the parties. It seems at least possible to argue that, in

such circumstances, the agreement of the parties might have the effect of transforming

adjudication into – effectively – some form of informal arbitration, the outcome of which

could be enforced abroad under the New York Convention. How do we settle the issue

whether adjudication should be considered as arbitration for the purposes of the Convention

under those circumstances? Should a domestic law be applied to decide such issue? Which

one?

2. The Territorial Criterion and its Exception

Article I (1) of the Convention provides that:

This Convention shall apply to the recognition and enforcement of arbitral

awards made in the territory of a State other than the State where the

recognition and enforcement of such awards are sought, and arising out of

differences between persons, whether physical or legal. It shall also apply to

arbitral awards not considered as domestic awards in the State where their

recognition and enforcement are sought.

It is clear that the Convention not only applies to the recognition and enforcement of an

arbitral award made in another State but it also applies to the recognition and enforcement of

an arbitral award which is not considered as a domestic award in the State where recognition

and enforcement are sought. It is therefore left to the legislation of a Contracting State to

decide if and in the presence of what circumstances an award should not be considered as

domestic even though, on application of the territorial criterion, it should fall under that

category. This is another level of interaction between the Convention and domestic law that

may bring about a considerable expansion of the Convention‘s scope of application.

3. The commercial reservation

Article I (3) provides that:

[…] any State may on the basis of reciprocity declare that it will apply the

Convention to the recognition and enforcement of awards made only in the

territory of another Contracting State. It may also declare that it will apply

the Convention only to differences arising out of legal relationships, whether

contractual or not, which are considered as commercial under the national

law of the State making such declaration.

This reservation was adopted at the Conference as it was feared that in its several civil law

countries that distinguish between commercial and non-commercial transactions would not



37

entered into the Convention.

As regards actual application of the reservation, very much depends on the relevant

domestic law as well as the application of such law by the relevant judge. An explanatory

case can be found in Bureau WijsMüller v United States of America9, where a US district

court considered an award dealing with the salvage of a US warship outside the scope of the

Convention. The court held that ‗relations arising out of the activities of warships have never

been regarded as ‗commercial‘ within the context of sovereign immunity.‘ Interestingly, the

Appellate Division of the Supreme Court of New York held in another case that an

employment contract must be considered as commercial within the meaning of the

Convention.10

Some other decisions in this regard have been openly criticised for the strict

approach taken in assessing the nature of the dispute in Société d‟Investissement Kal v.

Taieb Haddad and Hans Barett11

for example a dispute had arisen out of a contract for the

designing of a resort in Tunisia which contained an ICC arbitration clause. When it came to

enforcement of the relevant arbitral award, The Tunisian trial judge, Court of Appeal and

Supreme Court all agreed that enforcement should be denied, finding that Tunisia had made

the commercial reservation of Article I(3) of the convention and architectural and

urbanisation works are not considered as ―commercial‖ under Tunisian law.

It must also be signalled that the domestic courts of some countries which have entered into

the commercial reservation have given the term ‗commercial‘ a broad interpretation bearing

in mind the needs and principles of international trade. Indeed many courts tend to depart

from the stricter provisions of domestic law to interpret ‗commercial‘ in line with the Model

Law definition.

4. Arbitration agreements: arbitrability, formal and

substantive validity

a. Arbitrability

Article II (1) of the Convention provides that:

Each Contracting State shall recognize an agreement in writing under which

the parties undertake to submit to arbitration all or any differences which

have arisen or which may arise between them in respect of a defined legal

relationship, whether contractual or not, concerning a subject matter capable

of settlement by arbitration.

9Bureau WijsMüller v United States of America 356 F.Supp. 1 D.C.N.Y., 1973; Yearbook, Vol. III (1978), p. 290. 10Fabergé International, Inc v. Mr Felice Di Pino, New York Law Journal of 15 July 1985; Yearbook, Vol. XII

(1987), pp. 536. 11Société d‟Investissement Kal v. Taieb Haddad and Hans Barett Yearbook, Vol. XXIII (1998), p. 770.



38

It is for the relevant national legislator to regulate arbitration as a means to resolve disputes

alternative to State courts and to establish within which limits and under which conditions

arbitration is accepted by the national system. Increasingly, arbitration is perceived as a

suitable means of dispute resolution for all kinds of disputes.

The growing favour towards arbitration is being recorded in national rules and court

decisions which are increasingly allowing recourse to arbitration in relation to subject matter

that used to be considered non-arbitrable by reason of underlying public issues.12

b. Formal Validity

As is well known, the first two paragraphs of Article II of the Convention identify what are

frequently described as ―threshold‖ requirements for the formal validity of arbitration

agreements.

Each Contracting State shall recognize an agreement in writing under which

the parties undertake to submit to arbitration all or any differences which

have arisen or which may arise between them in respect of a defined legal

relationship, whether contractual or not, concerning a subject matter capable

of settlement by arbitration.

The term “agreement in writing” shall include an arbitral clause in a

contract or an arbitration agreement, signed by the parties or contained in an

exchange of letters or telegrams.

This means that Contracting States are at freedom to adopt more liberal requirements for the

validity of arbitration agreements than those contained in the Convention. Therefore,

Contracting States would be in breach of the obligations arising out of the Convention if

they introduced requirements of validity that are more burdensome than those contained in

the Convention.

The court of a contracting State, when seized of an action in a matter in respect of which the

parties have made an agreement within the meaning of this article, shall, at the request of

one of the parties, refer the parties to arbitration, unless it finds that the said agreement is

null and void, inoperative or incapable of being performed.

c. Substantive validity

Article II (3) deal with the relationship between arbitration clauses and domestic courts. It

provides that

12 Loukas Mistelis and Stavros Brekoulakis, Arbitrability: international & comparative perspectives 2009.



39

The court of a Contracting State, when seized of an action in a matter in

respect of which the parties have made an agreement within the meaning of

this article, shall, at the request of one of the parties, refer the parties to

arbitration, unless it finds that the said agreement is null and void,

inoperative or incapable of being performed.

Article II (3) does not offer any guidance as to what should be the meaning of the words

‗null and void‘. One solution would be to refer to the applicable national law. The Article,

however, does not provide for the rules of conflict permitting to identify the national law

applicable to the ‗null and void‘ clause, contrary to Art. V (1)(a) which refers to the law

chosen by the parties or, failing such choice, to ‗the law of the country where the award was

made‘ i.e., as a rule, the law of the seat.

At least three different laws might in theory be taken into account to establish the validity of

arbitration agreements. Such laws might be:

The law applicable to the main contract

This approach, which is mainly based on a choice-of-law basis, would favour the

application of the domestic law governing the contract which the arbitration

agreement is inserted in.

The law of the place of arbitration

This is the law which is believed by the majority of commentators and domestic

laws to apply to the arbitration agreement. Article V (1) (a) of the Convention itself

refers to the law chosen by the parties or, failing such choice, to ‗the law of the

country where the award was made‘ i.e., as a rule, the law of the seat. This view is

also supported by the fact that a good number of the New York Convention‘s

contracting States have entered into the 1961 European Arbitration Convention.

The latter Convention, at Article VI(2) states that in taking a decision concerning

the existence or the validity of an arbitration agreement, courts of contracting States

shall examine the validity of such agreement with reference to the capacity of the

parties, under the law applicable to them while with reference to other issues with

reference to the law which the parties have subjected their arbitration agreement to.

Failing any indication thereon, under the law of the country in which the award is

to be made. Failing any indication as to the law to which the parties have subjected

the agreement, and where at the time when the question is raised in court the

country in which the award is to be made cannot be determined, under the

competent law by virtue of the rules of conflict of the court seized of the dispute.

International uniform rules

According to this approach the validity of arbitration agreements should be

performed without any reference to any domestic laws but rather with reference to a

uniform international standard. It is advocated by the supporters of this approach



40

that Article II (3) should be interpreted autonomously and the power to review by

domestic courts should be limited to the few internationally recognised grounds for

invalidity, such as fraud and duress.

5. Article v(1) – setting the circumstances in the presence of

which recognition and enforcement may be refused

As is well known, Article V introduces the grounds which may lead to refusal of recognition

and enforcement, in the presence of an application to that effect by the interested party, as

follows:

Recognition and enforcement of the award may be refused, at the request of

the party against whom it is invoked, only if that party furnishes to the

competent authority where the recognition and enforcement is sought, proof

that:

Two of the grounds for refusal of enforcement that, more than others, may be affected by the

application of a domestic law can be found under Article V(1)(a). These are: incapacity of a

party and invalidity of the arbitration agreement.

a. Incapacity

Enforcement may be refused in the presence of evidence that:

The parties to the agreement referred to in Article II were, under the law

applicable to them, under some incapacity

The ―law applicable to them‖ is often referred to as the ‗personal law‘. This law would

normally be determined through the conflict of laws rules of the lex fori. Most of such laws

normally would point to the law of domicile or habitual residence, in case of individual

parties, and to the law of the place of incorporation or the principal place of business, in case

of legal persons.

b. Invalidity

Enforcement may be refused in the presence of evidence that the arbitration agreement:

is not valid under the law to which the parties have subjected it or, failing any

indication thereon, under the law of the country where the award was made

The first conflict of law rule under that Article is connected to party autonomy. The second

one relates to a subsidiary rule providing that in the absence of a choice of law by the

parties, the arbitration agreement is governed by the law of the country where the award was

made. There seem to be little doubt that these conflict rules are international in nature



41

superseding the domestic conflict rules of the country where the award was made.

c. Irregularity in the composition of the arbitral tribunal or

procedure

Under Article V(1)(d) enforcement may be refused in the presence of evidence that:

The composition of the arbitral authority or the arbitral procedure was not

in accordance with the agreement of the parties, or, failing such agreement,

was not in accordance with the law of the country where the arbitration

took place; or

Pursuant to this provision, enforcement of the award can be refused if the respondent proves

that the composition of the arbitral tribunal or the arbitral procedure was not in accordance

with the agreement of the parties, or, in the absence of an agreement on these matters, was

not in accordance with the law of the country where the arbitration took place. It must be

stressed in this regard that not all changes necessarily amount to an issue leading to refusal

of recognition and enforcement of an arbitral award. Indeed, the composition may

legitimately as a result of several factors, including, for example, the provisions of the law

applicable to the arbitration agreement catering for that result..

Under the English Arbitration Act 1996, for example, if one of the parties fails to appoint its

arbitrator then the arbitrator appointed by the other party may well be confirmed as sole

arbitrator.13

Any such change in the composition of the arbitral tribunal would however be

consistent with the arbitration agreements since the choice of the place of arbitration, either

by the parties themselves or by the arbitrators, has the effect of incorporating the provisions

of the relevant arbitration statute into the arbitration agreement,

d. The Award ‘Has not yet Become Binding’

Pursuant to Article V(1)(e) enforcement may also be refused in the presence of evidence

that:

The award has not yet become binding on the parties or has been set aside

or suspended by a competent authority of the country in which, or under the

law of which, that award was made.

Ground e of Article V(1) provides in the first place that enforcement of an award can be

refused if the party against whom the award is invoked proves that the award has not yet

become ‗binding‘.

The Convention‘s predecessor, the Geneva Convention of 1927, required that, for

enforcement to be allowed, the award had to become ‗final‘ in the country where it had been

13

English Arbitration Act 1996, Section 17.



42

rendered. This was believed to entail the need for an ―exequatur of finality‖ to be approved

by the courts at the place of arbitration.

The drafters of the New York Convention, in order to facilitate and accelerate enforcement,

removed the need for any such exequatur. Accordingly, no leave for enforcement in the

country of origin is required under the New York Convention.

Domestic courts, however, tend to inconsistently interpret the issue whether the binding

force is to be determined under the law applicable to the award or in an autonomous manner

independently from any domestic law. Indeed, a number of courts have investigated the

issue with reference to the lex arbitri while others have given effect to the word binding

without reference to any applicable law.

An argument in support of the autonomous interpretation is that if the applicable law

provides that an award becomes binding only after a leave of enforcement is granted by the

court, the ‗double-exequatur‘ is in fact reintroduced into the convention, thus defeating the

attempt of the drafters of the convention to abolish this requirement.

6. Grounds for refusal actionable by domestic courts

Under the second paragraph of Article V enforcement may be refused in the presence of

evidence, which may be identified by the judge of his own motion, that:

(a) The subject matter of the difference is not capable of settlement by

arbitration under the law of that country; or

(b) The recognition or enforcement of the award would be contrary to the public

policy of that country.

Since arbitrability is generally regarded as part of the broader category of public policy, our

analysis will focus on the general mechanics of application of Article V (2)(b).

Under Article V(2)(b) enforcement may be refused in the presence of evidence, which may

be identified by the court of its own motion, that recognition or enforcement of the award

would be contrary to the public policy of that country.

Compliance with public policy is to be assessed with reference to the law of the place of

enforcement. This is a safeguard provision aimed at preventing enforcement of an award the

content of which would be in clear contrast with the core principles of that jurisdiction.

It is outside the intended purpose of this article providing an overview of what would be

contrary to the public policy of each Contracting State of the New York Convention.



43

However, some reflections on the scope of public policy might be in place. For example,

some Contracting States have clarified which limited set of domestic law provisions dealing

with public policy apply where assessing the enforceability of foreign arbitral awards.

In summary, the public policy provisions to be taken into account should be those falling

within the category of international public policy i.e. the public policy provisions of

domestic law dealing with cases characterized by an international element or a degree of

detachment from that jurisdiction. Domestic international public policy is commonly

distinguished from ―truly‖ transnational public policy, which might be described as the

limited set of public policy principles common to all States (or the vast majority of them).

It is frequently observed that, if we were to give a pictorial description of the relationship

amongst those three categories we could draw it in the shape of a pyramid. Domestic public

policy, which is characterized by the highest number of provisions, would make the base or

bottom of our imaginary pyramid. Domestic international public policy, being composed by

the core provisions of public policy of a domestic law, amounts to a narrower corpus of

provisions. In our pyramid, therefore, it would be placed in the middle of the building.

Transnational public policy, being the narrowest corpus of provisions would be the top layer

of the pyramid. In this structure each layer would contain also the provisions of the smaller

layer. In other words, the lower layer also contains the provisions of the higher layer.14

Therefore, in identifying what constitutes public policy for the purpose of Article V(2)(b) of

the New York Convention, reference should be made to the international public policy of the

domestic law of the country where enforcement is sought. Therefore the core provisions of

domestic public policy, to the exclusion of those having a more domestic and less

compelling character.

It is interesting to note that, during the negotiation of the Convention, it was suggested a

wording that is pretty illustrative of the concept of public policy that was common to the

majority of the Convention‘s drafters. Under draft Article IV(h) it was indeed suggested that

recognition and enforcement may be denied where ―the recognition and enforcement of the

award, or the subject matter thereof, would be clearly incompatible with public policy or

with fundamental principles of the law‖.15

It has been observed in this respect that ―by using

restrictive words like clearly and fundamental the Committee intended to limit this ground to

cases in which the recognition or enforcement of a foreign arbitral tribunal would be

14 Loukas Mistelis, ‗Keeping the Unruly Horse in Control‟ or Public Policy as a Bar to enforcement of (Foreign)

Arbitral Awards, 2 Int‘l Law Forum Du Droit Int‘l, 248, 252 (2000); Julian D. M. Lew Comparative

International Commercial Arbitration, 723, (2003); Pierre Lalive, Transnational (or Truly International) Public

Policy and International Arbitration, in Comparative Arbitration Practice And Public Policy In Arbitration,

ICCA Congress Series No. 3, 295, Pieter Sanders ed., 2005. 15 Report of the Committee E/2704, Annex, page 2.



44

distinctly contrary to the basic principles of the legal system of the country where the award

is invoked.16

In one of the leading commentaries, it has been suggested on Article V(2)(b) that:

The provision certainly refers to international public policy, and not

domestic public policy. Not every breach of a mandatory rule of the host

country could justify refusing recognition or enforcement of a foreign

award. Such refusal is only justified where the award contravenes

principles which are considered in the host country as reflecting its

fundamental convictions, or as having an absolute, universal value.17

Some of the most arbitration-friendly countries, such as France, make clear in their domestic

legislation how public policy for the purpose of recognising and enforcing foreign arbitral

awards should be interpreted. Article 1514 of the 2011 French Arbitration Reform states

that:

Les sentences arbitrales sont reconnues ou exécutées en France si leur

existence est établie par celui qui s'en prévaut et si cette reconnaissance

ou cette exécution n'est pas manifestement contraire à l'ordre public

international (emphasis added).18

Furthermore, some authors have suggested that the application of domestic public policy

should be performed under the limitation driving from international concepts. It has been

observed in this respect that:

Although Article V(2)(b)'s public policy exception focuses on national

public policy, the structure and objectives of the New York Convention

(and other international arbitration instruments) should be interpreted as

imposing some limits on Contracting States' applications of national

public policy. The Convention's structure and objectives argue strongly

against the notion that Contracting States would be free to effectively

repudiate their obligations under Articles III and V by means of reliance

on parochial local public policies, without international limitation. It

would, for example, make no sense to interpret Article V(2)(b) as

permitting a Contracting State to require that all disputes be resolved in

local courts or in accordance with local substantive laws or local

procedural rules; equally, it would make no sense to interpret Article

V(2)(b) as allowing a Contracting State to forbid the arbitration of tort

claims or future disputes. In each case, these national law rules would

16 Reinmar Wolff, Grounds for refusal of Recognition and Enforcement, Public Policy, in ―New York

Convention‖, Reinmar Wolff ed., at page 403 17 Emmanuel Gaillard and John Savage (eds), Fouchard Gaillard Goldman on International Commercial

Arbitration, 1999, at page 995 18 Décret n° 2011-48 du 13 Janvier 2011 Portant Réforme de L'arbitrage



45

essentially annul a Contracting State's ratification of the Convention and

cannot have been intended.19

In the international context, an attempt to identify the provisions of public policy has been

made by the International Law Association in its Recommendations on the Application of

Public Policy as a Ground for Refusing Recognition or Enforcement of International

Arbitral Awards (hereinafter referred to as the ―ILA Recommendations‖).20

The ILA Recommendations suggest that the finality of awards rendered in the context of

international commercial arbitration should be respected save in exceptional circumstances

and that such exceptional circumstances may, in particular, be found to exist if recognition

or enforcement of the international arbitral award would be against international public

policy. According to letter 1(d) of the ILA Recommendations:

the international public policy of any State includes: (i) fundamental

principles, pertaining to justice or morality, that the State wishes to

protect even when it is not directly concerned (ii) rules designed to serve

the essential political, social or economic interests of the State, these

being known as “lois de police” or “public policy rules” and (iii) the duty

of the State to respect its obligations towards other States or international

organisations.

Finally, it should be noted that public policy is a developing concept which, as such, is likely

to give rise to different outcomes in different times. As stated by the Court of Appeal in

New Zealand:

Even within any given common law country the courts cannot by the

doctrine of precedent stereotype public policy; what was once the rule

need not be accepted as required by current conditions … “Since public

policy reflects the mores and fundamental assumptions of the community,

the content of the rules should vary from country to country and from era

to era.” This does not mean that prior decisions based on public policy as

judicially conceived at the time are lightly to be abandoned and the issue

automatically approached anew. I think it means rather that the court

should not automatically assume that past public policy is sacrosanct.

Changes in society or attitudes prevailing internationally may show that

apprehensions once seen as real and weighty are obviously no longer

so.21

19 Gary Born , International Commercial Arbitration, 2009, page 2837 20 Available at www.ila-hq.org. 21CBI v. Badger Chiyoda, [1989] 2 NZLR 669, at 674 as quoted in Article V(2) Dirk Otto and Omaia Elwan, in

Herbert Kronke, Patricia Nacimiento, et al. (eds), ―Recognition and Enforcement of Foreign Arbitral Awards: A

Global Commentary on the New York Convention‖,2010at page 367.



46

7. More favourable provisions available outside the

convention

The so-called pro-enforcement bias of the Convention is also enhanced by making sure that

the application of the Convention does not prevent the application of international or

domestic legislative instruments providing for a more favourable legislative regime.

Article VII provides that the application of the Convention should not affect:

[…] the validity of multilateral or bilateral agreements concerning the

recognition and enforcement of arbitral awards entered into by the Contracting

States nor deprive any interested party of any right he may have to avail himself

of an arbitral award in the manner and to the extent allowed by the law or the

treaties of the country where such award is sought to be relied upon.

The late Professor Philippe Fouchard described this provision as:

„the treasure, the ingenious idea‟ of the convention that ensured its durability while

permitting states and judges to improve upon it.”22

Conclusion

The fact that the New York Convention, despite having been around for more than fifty

years, is attracting increasing interest is testament on one hand to the fact that international

arbitration is growing and on the other that a deeper, common understanding of its

provisions is desired. What seems particularly necessary in that respect is an informed

understanding of the mechanics of the Convention which are behind the Convention‘s

remarkable success.

The Convention, on one hand imposes a general obligation to recognise and enforce arbitral

awards rendered abroad. On the other hand, it qualifies such a general obligation where

recognition and enforcement would clash with the core provisions of domestic law at the

place of enforcement. Domestic laws, therefore, play an important role in the attainment of

the overarching goals of the Convention.

22 Philippe Fouchard, Suggestions pour accroître l‟efficacité internationale des sentences arbitrales, Rev. Arb. 653,

663 (1998) as quoted by Emmanuel Gaillard in Article VII And The Relationship Of The New York Convention

With Other Treaties And With Domestic Law As Regards The Recognition And Enforcement Of Foreign

Awards, in ―Enforcement of Arbitration Agreements and International Arbitral Awards The New York

Convention 1958 in Practice‖, Emmanuel Gaillard and Domenico Di Pietro (eds) 2008.



47

Domestic legislators and domestic courts should exercise their powers in that regard bearing

in mind the role played by arbitration in international business and the expectations of all

international business people and entities that States will respect their reliance on arbitration

as the preferred and necessary means for the fair and neutral resolution of international

disputes.

―Human progress is neither automatic nor inevitable... Every step toward the goal

of justice requires sacrifice, suffering, and struggle; the tireless exertions and

passionate concern of dedicated individuals.‖

― Martin Luther King Jr.

http://www.goodreads.com/author/show/23924.Martin_Luther_King_Jr_



48

Salient Features of

Apartment Ownership Law

Mahanil Prasantha De Silva, LLM (Aberdeen)

High Court Judge of the Provincial High Court,

North Western Province.

The law applicable to the property in Sri Lanka is non-statutory Common Law based on a

mixture of the principles of Roman Dutch Law. In terms of Roman Dutch Law, a person

who owns a piece of land, owns not only the surface of land but also an unlimited space

above it and the surface underneath to the center of the earth. Therefore it is submitted that a

person who owns a piece of land, owns all the land underneath it and all the space over it,

thus structures and plantations acceded to the soil and endured to the benefit of the owner of

the soil, according to the maxim superficies Solo cedit. This law did not allow separate

ownership of parts of a building.

The said principle was decisively abrogated by statute. The apartment ownership Act of

1973, which was introduced repealing the Condominium Property Act No. 12 of 1970.

The significant innovation introduced by the apartment ownership law No. 11 of 1973,

which enables private ownership of certain parts of a building by individuals, while other

parts of the same building are treated as owned in common, in apartment ownership

schemes.

In terms of the Sri Lankan Apartment Ownership Act, any person claiming to be an owner

of a condominium property, semi condominium property or provisional condominium

property shall make an application to the Registrar for the registration of a plan of the

condominium property1.

Upon the registration of the condominium plan or the semi condominium plan or provincial

condominium plan, the owner of any condominium parcel(Apartment) of the condominium

property shall be deemed to be the owner of his parcel and his share in the common

elements, subject to the encumbrances, if any registered or notified in the relevant register2.

1 Sec. 3, Apartment Ownership (Amendment) Act No. 39 of 2003. 2 ibid, Sec. 7



49

In this instance a person can acquire a title or interest or benefit in any condominium

property, if such title or interest or benefit is registered under the provisions of Registration

of Title Act No. 21 of 1988.

When a person becomes an owner of a condominium parcel, in an apartment ownership

scheme, he enters into a threefold relationship, thus first he acquires the ownership or the

title of the condominium parcel (Apartment) second, he becomes the joint or the common

owner of the land and parts of the building pertaining to the common property and third, he

becomes a member of the owners association named as the management corporation. As

such, the legal rules applying to the Apartment Ownership Law, straddle with the law of

property and also with the law of association.

It is to be noted that when an owner becomes a member of the management corporation, he

continues to be a member until the apartment is alienated or the management corporation is

dissolved. Consequently, no owner can rescind his membership from the management

corporation, thus a member is compelled to corporate in the management and has an

obligation to share the expenses of the apartment ownership scheme. It shows that becoming

a member of the management corporation is not voluntary but obligatory.

Management Corporation as an Organ Which Enforces

Obligations

After registering the condominium plan, the owners of the condominium parcels, shall

become a body corporate with perpetual succession and a common seal and shall be called

the management corporation3. One of the most important functions of the management

corporation is to establish a management fund for the purpose of controlling, managing and

administering the common elements to pay rent, rates premium of insurance and to

discharge any other obligations of the management corporation4. Funds can be raised by the

contributions levied by the corporation and paid by the owners proportionately to their share

of the condominium parcel and also fines, interest, penal charges, premiums, reconnection

charges and deposits levied by corporation and paid by the owners. Apart from the

management fund, the management corporation shall establish a sinking fund for the

purpose of emergency expenses of any major repair to the common elements or discharge

any other similar obligations of the corporation5.

An apartment owner can use his apartment exclusively and the common property or

common elements are designed to be used collectively by all the apartment owners. The

apartment owner has greater rights to use and enjoy in respect of his apartment than a

3 Apartment Ownership (Amendment) Act No. 45 of 1982, Apartment Ownership (Amendment) Act No. 39 of

2003, s20 B(1) 4 ibid, 45 of 1982. , S 20B(1). 5 ibid, s 20H(1).



50

common property. The Apartment Owner is mostly considered master of his Apartment, as

such the cost of maintaining the apartment rests with the owner, but the up keeping and

maintenance of the common property depends on the management cooperation with the

contributions of all the apartment owners. Therefore it can be construed, that an apartment

owner can alter, decorate or equip his apartment according to his own taste. However the

alterations should not cause a risk of damage to the structure of the building6.

In addition to the common law restrictions, the Apartment Ownership Act has imposed the

following restrictions on the use and enjoyment of an apartment.

Firstly, the apartment owner is compelled to repair and maintain the apartment and keep it in

a state of good repair.

Secondly, he has to permit the management corporation, at all reasonable times and on

reasonable notice being given to enter his apartment for the purpose of inspecting the

apartment to ensure that the rules of the scheme are complied with.

Thirdly, apartment owner must forthwith carryout all work ordered by any government,

public or statutory authority in respect of his apartment, apart from such work for the benefit

of the building he has to pay all assessment charges and outgoings which are payable in

respect of his apartment7.

If these obligations are not fulfilled by an apartment owner, he violates the rules of the

scheme thus perpetrating a wrong doing for which he has to face the consequences.

Therefore it is submitted that according to the aforesaid by laws apartment owners right to

use and enjoyment of his apartment is constrained.

Further to the above mentioned restrictions, an apartment owners has to use his rights, when

enjoying and using his apartment with due consideration for the rights of the other apartment

owners in the scheme. In the same way an apartment owner cannot exercise his rights in a

manner, which cause any inconvenience or annoyance to the other legal occupiers of the

scheme.

Moreover, the following by laws came into effect thereby restricting the rights of the

apartment owner. Part two of the second schedule of the Act states;

1. An apartment owner shall not use his apartment for any purpose illegal or

otherwise which may be injurious to the reputation of the building. For an example,

owner may not be allowed to convert his residential apartment to a commercial

apartment to set up a health centre or a betting center or a liquor shop in his

apartment.

2. An apartment owner shall not use inflammable substance or material which may

cause smoke or fumes or obnoxious smell; throw or allow to fall any refuse or

6 ibid, s 20H(3A) 7 Part 1, 2(B), Ibid, Act No. 45 of 1982.



51

rubbish of any description on the common elements or any part thereof. In this

instance, despite the real owner being able to collect garbage in his garden to

destroy it by burning or make compost, an apartment owner is not allowed to use

the common property for the said purpose.

3. Under the by-laws, an apartment owner should not rear any animal in his apartment

or the common property which may cause annoyance to any other occupant thus he

is restricted in keeping pets according to his whims and fancies.

The effectiveness of an apartment ownership scheme will rest or constitute upon the

necessary co-operation and support of the apartment owners in complying with their social

and financial obligations imposed upon them. As such without complying with these

obligations can the apartment owners enjoy their concurrent rights? If the financial

obligations are not complied with, can the management body maintain and effectively

administer the scheme? In such a situation what would happen to the stability of the

building?

The success of an Apartment Ownership scheme will depend on the mutual understanding

and the necessary co-operation of its members in complying with these obligations. If not

the efficient procedures for the enforcement of financial and social obligations are a

condition sine qua non of a successful scheme.

Recovery of money due to the Management Corporation

The management corporation can recover all the levy contributions assessed against the

parcel (Apartment) owner in accordance with his quota8. Apart from these levies, any

expenses incurred by the management corporation for performing any repairs, work or act

also can be recovered from owner as well as the prospective purchaser9. All these levies can

be claimed as a civil debt in an action in ay court of competent jurisdiction10

. The crucial

question is whether this measure of enforcement is practicable to the management or

administration of the scheme.

(a) A charge on the condominium parcel (Apartment) for outstanding

contributions.

However the management corporation is not given any protection in the case of an

apartment owner being unable to pay his contributions. For this purpose the Act has created

an automatic lien in favour of the management corporation against the condominium parcel.

8 ibid, s 20A (2) (c ) 9 ibid, s 20(c )(5) 10ibid, s 20C (7)



52

Where any contribution is levied or any amount is to be recovered by the management

corporation a written demand has to be sent to the apartment owner. If the owner fails to

comply with the written demand, within 14 days of the date of such demand, the

contribution or amount including any interest due thereon shall constitute a first charge on

the condominium parcel in favour of the management corporation11

. In this instance the

management corporation becomes a registered mortgagee and has the power of selling the

apartment and recovering the money due.

It is interesting to note that the management corporation cannot proceed to sell the

condominium parcel unless, a special resolution has been passed by the management

corporation to have the condominium parcel sold; a notice of the intended sale has to be

published once, in one or more daily newspapers; during the period of six weeks after the

date of such publication, if no payment has been made for the amount of contribution

including any interest thereon due and cost of publication as well as any other incidental

charges, and there is no legal action pending in court to restrain the management corporation

proceeding with the sale, the management corporation can proceed with the sale12

.

(b) Liability of purchaser on transfer of the condominium parcel.

The management corporation is empowered to recover the outstanding contributions from

the owner as well as the prospective purchaser. According to this section any arrear levies

can be recovered from the successor to the title that is the prospective purchaser. Thus in the

absence of a provision of an embargo on alienation, this section by providing for recourse

against a purchaser, protects the management corporation effectively against non- payment

of levies by the seller of a condominium parcel.

It appears to be that the Legislatures have not intended to place a provision of embargo on

alienation, thus this remedy is only effective if the parcel is not heavily mortgaged and the

former owner has sufficient funds left over after the sale, to pay off the arrears.

Under section 20 C (6) of the Apartment ownership Act, the prospective owner can make a

requisition to inquire about the amount recoverable by the management corporation. In this

instance if the management corporation certifies that no amount is recoverable or fails to

reply to the requisition, prospective owner is not liable to pay any amount.

This provision is advantageous from the point of the management corporation, as no room

has been kept for any owner or the prospective purchaser to creep from evading the liability.

But on the other hand is it reasonable to recover levies from the prospective owner after

paying the purchase price to the former owner who is responsible for the liability?

11 ibid, S 20H(5) 12 ibid, S20J(2)



53

(c) The powers to disconnect the supply of services.

the powers of the management corporation regarding the enforcement of obligations have

been widened by the recent amendment of the Act authorizing to disconnect the supply of

services such as water, electricity or any other utilities provided to the individual

condominium parcel through the management corporation, by the National Water Supply

and Drainage Board, the Ceylon Electricity Board or any local authority or any other

authority or licensee, if the owner of the condominium parcel fails to pay any of the amounts

demanded. In this instance, in fairness to the owner, Management Corporation must make

sure that the discontinuance of such services would not affect the health of the occupants in

the parcel.

It is to be noted that the management corporation could proceed to disconnect such supplies

by passing a special resolution approving the discontinuance of such service and also giving

fourteen days‘ notice of the intended discontinuance along with the copy of the resolution so

passed, and parcel sent by registered mail to the owner of the particular condominium

parcel.

This is a welcome amendment to the Act, since the absence of a provision in this nature in

the earlier Act created a lacuna in the law in relation to the effective enforcement of

financial obligations.

Albeit, it appears to be strict provision, as the management corporation has been given wide

powers to disconnect the main services such as water and electricity on the failure of the

owner to pay any of the amounts demanded, under section 20 H of the Act. Therefore it is

needless to say that if this provision is enforced in its true spirit it would have the effect of

effective enforcement of financial obligation as no one would like to live without water and

electricity supply.

The role of the Condominium management authority with

regard to the enforcement of obligations

Apart from the above mentioned measures, which are stipulated in the Apartment

Ownerships Act in respect of the enforcement of financial obligations, in terms of the

common Amenities Board (amendment) Act No. 24 of 2003, has established a public

authority called the condominium management authority, for the control management,

maintenance and administration of the condominium property.

The object of the authority has been mentioned in the Act which ensures that the

management corporation of the Condominium property is properly functioning13

, managing

and thus administer the activities of the management corporation in its functions.

13 Common Amenities Board (Amendment) Act No. 24 of 2003, S5.



54

The condominium management authority is empowered to exercise powers to recover levy

fees or charges for the services rendered by the authority; recover any premium from owners

in proportion to their interest in the condominium management authority; recover from any

person including an owner, expenses incurred in making good any damage caused by him to

the common amenities or common elements of the condominium parcels; providing to any

condominium management parcel, any series including its refurbishment, repair and

maintenance at the request of the management corporation or owner, occupier of the

condominium management parcel and levy charges. Therefore it is a duty of the

condominium management authority to undertake to control maintain, manage and

administer the common elements and common amenities, where the authority is satisfied

that the owner or owners or the management corporation are incapable of properly,

maintaining or administrating the same14

.

In terms of the Act, the authority is empowered to inquire into the activities and the financial

stability of the management corporation on its own motion or on the application of a

majority of the member of the management corporation or of not less than one third of the

owners of the condominium parcels of condominium property15

.

In addition to the powers vested in the authority, monies due to the authority can be

recovered from the owner of a parcel. In this instance, a certificate has to be issued by the

general manager stating the sum of money, which is due to the authority, before a District

Court16

. The Court shall issue an Injunction restraining the acts specified in section 15(A) of

the Act and shall direct a writ of execution to be issued to the fiscal authorizing and

requesting him to seize and sell or any of the property movable and immovable of such

person as may be necessary for the recovery of dues.

The recent amendment has been introduced as a method of recovery of money liable to be

paid to the authority by a person, out of the remuneration of such person. This method of

recovery can be exercised by an employee of the government service, judicial service or any

corporate body17

.

It is to be noted that as a measure of enforcing the financial obligations, the Act stipulates,

―Every employer who contravenes any of the relevant provisions of section 15, shall be

guilty of an offence and shall on conviction after summary trial before a magistrate, be liable

to a fine not exceeding ten thousand rupees or to imprisonment of either description for

period not exceeding one year as to both such term and imprisonment.‖

It is apparent that the Condominium management authority is empowered to settle disputes

between the management corporation and the owner or owners and occupier or purchaser or

owner and mortgagee or mortgagees and the Condominium parcel of the Condominium

14 ibid, S,6 15 ibid, S,9. 16 ibid, S,15. 17 ibid, S, 15B(1)



55

property, thus the Condominium management authority is functioning as a tribunal to

resolve the disputes between the parties18

.

Conclusion

Due to the foregoing reasons, establishing Condominium management authority would no

doubt strengthen the procedures laid down in the Apartment Ownership Act with regard to

the enforcement of obligations.

Apparently the Apartment Ownership Act does not provide stringent or harsh measures with

regard to the enforcement of obligations. The measures provided by the Act seems to be

adequate for the time being, with regard to the effective enforcement of obligations, since

there have not been major disputes in apartment ownership schemes up to now.

By and large the provisions enumerated in the apartment Ownership Statute can be applied

practicably with regard to the enforcement of financial obligations. It is desirable to

introduce provisions to forestall the problems likely to arise in this field, neglect to do so

may lead to many complications.

―Justice will not be served until those who are unaffected are as outraged as those who are.‖

― Benjamin Franklin

18 ibid, S,6(M)

http://www.goodreads.com/author/show/289513.Benjamin_Franklin



56

Combating Torture in Sri Lanka

Through International Human Rights Law

M. Elancheleyan, LL.B (Col), LL.M (Col), LL.M(Hongkong)

High Court Judge, Kalmunai

Introduction

In Sri Lanka, Torture is not only the violation of fundamental rights under Art 11 of the

Constitution (1978), but also a Criminal Offence under the Torture Act. No: 22 of 1994. The

Supreme Court has sole Jurisdiction to hear the Violations of torture under Art 11 read with

Art 126 (2) of the Constitution. The Court of Appeal shall have the jurisdiction to refer the

matter of infringement of fundamental rights to Supreme Court for determination under Art

126(3) of the Constitution. The High Court has jurisdiction to hear the offence of torture

under the Torture Act No.22 of 1994.

Ratification of International Human Rights Convention By

Sri Lanka

Sri Lanka has acceded to the covenant on Civil and Political Rights on the 11th of June,

1980, and acceded Convention against Torture and other Cruel, Inhuman and Degrading

Treatment or Punishment on the 3rd of January, 1994. Sri Lanka has enacted Legislation

Torture Act No. 22 of 1994. Sri Lanka has acceded the Optional Protocol to the covenant on

Civil and Political rights in 1997. In Banda Vs S.I.Gunaratne1 Justice Amarasinghe has

analyzed the UN Convention against Torture with Torture Act No. 22 of 1994 Sri Lanka.

Justice Amarasinghe stated that

"Judicial Condemnation and the imposition of sanctions by way of requiring transgressors

to personally contribute toward compensation assessed by the Court as being just and

1 [1995] 1 S.L.R. Page. 244



57

equitable in the hope that other persons may be deterred from violating Art 11 of the

Constitution has meant very little. The Court's sense has been openly expressed.............I

had in Saman Vs Leeladasa [1989] 1 SLR 1 at pp-42-43 raised doubts about the

appropriateness and effectiveness of awarding compensation as a punitive measure ....I am

of the view that a comprehensive approach must be adopted if satisfactory results are to be

achieved. Art 2.1 of the United Nations Convention on Torture, which entered into force for

Sri Lanka with effect from 2nd February,1994, requires the state to take "effective

Legislative, administrative, Judicial, or other measures to prevent acts of torture. Sri Lanka

has enacted Legislation (Act No.22 of 1994) making 'torture' an offence. The united Nations

Convention stresses the need for education and certain procedural steps the state should

adopt"

Torture in Sri Lanka

Introduction

The constitution of Sri Lanka (1978) declares the provisions of fundamental rights in chapter

III. The prohibition of torture is guaranteed under Art 11 of the constitution. Art 11 of the

constitution reads as follows:

―No person shall be subjected to torture or to cruel, inhuman or degrading treatment or

punishment‖.

Justiciability

Art 17 of the constitution refers the legal remedy under Art 126 of the constitution, in

respect of the infringement or imminent infringement by ―Executive or Administrative

action‖. It is justiciable. Art 17 interprets that the violation of fundamental rights guaranteed

under the constitution shall be inquired by the Supreme Court of Sri Lanka under Art 126.

Velmurugu Vs AG. Sharavananda J2 (Minority judgment) held ―this court has been

constituted as the protector and guarantor of fundamental rights against infringement by

state action of such right‖

Ratification of international human rights conventions

Sri Lanka ratified the ICCPR and optional protocol in 1980 and 1997 respectively. Sri Lanka

has ratified the Convention against Torture and enacted the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment Act No.22 of 1994 Sri Lanka.

2 Velmurugu Vs AG. 1981, SLR 406 at 422 cited in justice S. Sharavananda, fundamental Rights in Sri Lanka (A

commentary) Sri Lanka 1993 page 20



58

Sri Lanka parliament has enacted the Torture Act in 1994. Any person who tortures any

other person shall be guilty of an offence, trial by the High Court.

Sect. 2 (4) of the Act clearly indicates that a person guilty of an offence under this Act shall,

on conviction after trial by the high court be punishable with imprisonment of either

description for term not less than seven years and not exceeding ten years and fine.

Sect. 2 of the Act states that ―offence was committed on an order of a superior officer or

public authority shall not be a defense to such offence‖.

Invoking international and regional human rights conventions

Sri Lankan appellate courts have invoked international human rights convention, and

regional human rights conventions.

In Velmurugu Vs AG3 Sharavananda J referred to the following comment of the European

Commission on Human Rights in the Greek case.

―There are certain inherent difficulties in the proof of allegations of torture or ill-treatment.

First, a victim or a witness able to corroborate his story might hesitate to describe or reveal

all that has happened to him for fear of reprisals upon himself or his family. Secondly, acts

of torture or ill – treatment by agents of the police without witnesses and perhaps without

the knowledge of higher authority. Thirdly, where allegations of torture or ill- treatment are

made, the authorities, whether the police or armed services or the ministries concerned must

inevitably feel that they have a collective reputation to defend, a feeling which would be all

the stronger in those authorities that had no knowledge of the activities of the agents against

whom the allegations are made in consequence, there may be reluctance of higher authority

to admit or allow inquiries to be made into facts which might show that the allegation are

true. Lastly traces of torture or ill-treatment may, with Lapse of time, become

unrecognizable, even by medical experts, particularly where the form of torture itself leaves

fear external marks (Vide Journal of Universal Human Rights Vol-1, No.4, Oct –Dec 1979

of page 42).

In the case of P.Balasekeram Vs O.I.C Joossp Army camp and others4 S.N. Silva CJ held;

―The United Nations Declaration on Torture adopted by the General Assembly in December

1975, the Convention Against Torture adopted in December 1984, and Sect. 12 of Act No

22 of 1994 being the law enacted by parliament to give effect to the convention, define the

actus reus of the offence of torture as ―any act which causes severe pain whether physical or

mental…..‖.

3 1981 ISLR 406 at 438 4 S.C. (FR) Application No 547/98



59

The Supreme Court of Sri Lanka has delivered judgment in Sirisene Cooray Vs Tissa

Bandaranayake,5 justice Dheeraratne used Art 21(1) of the UDHR to support the view that

the right to take part in the governance of one‘s country was as important as any of the other

rights.

Act 27 (15) of the constitution was referred in the Weerawansa Vs AG6 and supreme court

held that the state must afford the benefits of international law to its citizens in the case of

illegal detention.

I dealt with preventive detention during public emergency in the case of Vinayagamoothy

AAL (on behalf of Wimalendran) Vs. the Army Commander and Others.7 The police filed

the affidavit to the Court that the person has been involved with an offence of conspiracy of

association to kill the President of Sri Lanka. (President Premadasa)

The petitioner claimed that he was arrested on 2nd October 1993. However the law

enforcement officials stated that the petitioner was arrested on 29th October 1993. The

question was detention order for the disputed period. The Court believed the Amnesty

international report8 and finalized that the petitioner was arrested on 2

nd of October 1993.

The Prevention of Terrorism Act was passed by Parliament in 1978. In the case of

Pathmanathan Vs Sub.Inspector Paranagama, OIC, NIB Vavuniya and others9 the court

analyzed that the emergency regulation exempted the international organization. However

Sri Lanka Red Cross Society might not strictly fall within that provision. The organization is

involved with humanitarian assistance on behalf of government and the people of Sri Lanka.

The Court stated that the state has facilities ―To investigate, detect and prosecute crime‖

rather than to harassment of the petitioner.

Human rights committee

The human rights committee10

(1995 Sri Lanka) stated that the derogation of fundamental

rights during the emergency was not fulfilled the requirement of Art 4 of the ICCPR. The

committee expressed its concern, that the Sri Lanka court has no power to review the

Emergency Regulation. The committee pointed out that the order of preventive detention

which is issued by secretary defense is violation of ICCPR. The Committee criticized that

the Government of Sri Lanka has not fulfilled the requirement of right to liberty in prisons

and other places of detention under the Article 10 of the Covenant.

5 1999 (SLR) cited Mario Gomez the supreme court in the 1990 controlling public power through the law. BASL

JOURNAL 2000 6 SC Appl.730/96, SC. Minutes of 3rd Aug -2000 7 1997, SLR pages-113 -140 8 Report of Amnesty international of Feb. 1994, entitled ―Balancing human rights and security, abuse of arrest and

detention powers in Colombo. 9 1999 2 SLR 225-240 10 Human rights committee, comments on Sri Lanka. U.N.Doc .CCPR/C/79/Add.56-1995



60

Special Rapporteur and working group

The special rapporteur Nigel Rodley (1996) criticized that the Vijeyan Wimalendran11

was

detained unauthorized detention camp and person was not handed over to the Police custody

within twenty four hours. The detainee was tortured and blindfolded for the most of his

detention.

The special rapporteur Mr.Bacre waly N.Diaye12

(1997) stated in his Sri Lanka visit that

Emergency Regulation and the PTA allows incommunicado detention for one year and 18

months respectively without production before the Court.

The Working Group on Enforced or Involuntary Disappearances (1999) pointed out in its

report Sri Lanka13

that the detainees were detained in secret detention camps. The

government has not fully implemented the requirements of officially Gazetted detention

camps and Human Rights safeguards such as registers of the detainees, central register etc.

Habeas corpus

Art 141 of the Constitution of Sri Lanka refers the jurisdiction to issue writ of habeas corpus

before Court of Appeal and High Court of Sri Lanka.

In the landmark judgment of Leeda Violet and others Vs Vidana pathirana OIC, police

station Dikwella and others14

.S.N Silva J analyses with international law and other national

jurisdictions. Justice S.N.Silva refers Charter of justice of 1833 law of England, judgment of

inter-American Court of Human Rights, Human Rights Committee, United Nations

Commission on Human Rights Res-20 of 29th Feb 1980, working group to inquire into

enforced or involuntary disappearances and Indian judgment.

Deepika Udagama stated in her article15

that ―Sri Lanka‘s judiciary has consistently drawn

inspiration from India‘s activist judiciary and exposure to international human rights

standards and international criticism of Sri Lanka‘s human rights record appears to have

influenced the judiciary…..

11 Report of the special rapporteur Nigel Rodley 1996, para -625 12 Report of the Special Rapporteur Mr.Bacre Waly Ndiaye -1997/61-visit to Sri Lanka 13 Disappearance, working group on enforced or involuntary E/CN.4/1999/62-paras 3, 9,12 14 (1994) 3 Sri.L.R pages 377 -387 15 Deepika Udagama, Taming of the Beast: Judicial responses to state violence in Sri Lanka 11,

Harv.Hum.Rts.Journal 269 spring 1998 (www.Lexis.com)

http://www.lexis.com/



61

Jurisprudence on Fundamental Rights in Sri Lanka

a) Conflicting Interest between Art 126(2) and Art 126(3) of the

Constitution (1978) on the Question of Locus Standi

Art 126(2) of the Constitution provides that

"Where any person alleges that any such fundamental right or language right relating to such

person has been infringed or is about to be infringed by executive and administrative action,

he may himself or by an Attorney-at-Law on his behalf........

According to this provision Victim or an Attorney-at-Law on his behalf can file the action in

Supreme Court. It is amply proves in Somawathi vs. Weerasinghe and others16

It was held;

that where an application was filed by the Petitioner on behalf of her husband for violation

of Art 11 and 13 of the Constitution. In that case the majority held that Art 126(2) of the

Constitution, when construed according to the ordinary, Grammatical, natural and plain

meaning of its language, gives a right of complaint to the person affected or to his Attorney-

at-law and to no other person.

b) Conflicting Interest & Jurisdiction of Locus Standi Art.126(3)

Art 126(3) of the Constitution provides that "where in the course of hearing in the Court of

Appeal in to an application for orders in the nature of a writ of Habeas Corpus, Certiorari,

Prohibition, Procedendo, Mandamus or Quo warranto, it appears to such Court that there is

prima facie evidence of an infringement or imminent infringement of the provisions of

Chapter III or Chapter IV by a party to such application, such Court shall forthwith refer

such matter for determination by the Supreme Court."

Art 141 of the Constitution provides that the 'Habeas Corpus application can be filed by the

relatives of the person, who is under detention or disappeared. According to the Art 141 of

the Constitution, the relative of the defence or Corpora has the jurisdiction to file the habeas

corpus before the Court of Appeal. According to the Art 126(2) of the Constitution, Victim

or an Attorney-at-Law on his behalf has the jurisdiction to file infringement or imminent

infringement of fundamental right before Supreme Court. The Locus Standi and Jurisdiction

of the Court is very clear in Art 126(2) and Art 141 of the Constitution.

What is the philosophy behind that the Court of Appeal has to refer the matter for

determination to the Supreme Court under Art 126(3) that there is prime facie evidence of an

infringement or imminent infringement of fundamental right.

16 (1990) 2 Sri.L.R 121



62

According to the Art 126(3) of the Constitution; the relatives of the defence or corpora is

entitled to receive the determination from Supreme Court through an application for orders

in the nature of a writ of habeas Corpus. It is amply proves in Shanthi Chandrasekaram's

Case17

in the course of hearing of the habeas corpus applications filed by three petitioners,

the Court of Appeal Considered that there was prime facie evidence of the infringement of

fundamental right of the Constitution and made the reference to the Supreme Court. The

Supreme Court held ―that the defence had been arrested in violation of Art 13 (1) and 13 (2)

of the Constitution.

According to the Shanthi Chandrasekaram's Case, relatives have filed the action in Court of

Appeal under Art 141 of the Constitution and received the successful remedy from the

Supreme Court under Art 126(3) of the Constitution.

This is the main loophole and conflicting interest of Locus Standi of the fundamental rights

Petitions. According to the constitution there are two ways to receive remedy from

fundamental rights violation, (a) Victim or his Attorney-at -Law can file fundamental rights

petition.(Somawathi Case) (b) Relatives can receive remedy from Supreme Court under Art

126(3) of the Constitution.

What is the philosophy between Art 126(2) and Art 126(3) of the Constitution? In

Somawathi's Case (Supra) Art 126(2) of the Constitution is interpreted in very strict sense.

On the other hand Shanthi Chandrasekaram's Case (Supra) the intelligent Petitioner other

than the Victim received successful remedy from the Supreme Court under Art 126(3) of the

Constitution.

Judicial Activism in Sri Lanka

Indian Judiciary has established judicial activism in India. Justice Bagawathi and Justice

Krishna Iyer are the God-fathers of Judicial Activism in India. The Supreme Court of Sri

Lanka has established New birth of judicial activism in Sriyani Silva Vs Iddamalgoda and

others18

It was held ; that " the deceased detenu who was arrested , detained and allegedly

tortured and thereby died acquired a right under the constitution to seek redress from the

Court for violation of his fundamental rights. Hence where there is a casual link between

the death of a person and the process, which constitutes the infringement of such person's

fundamental rights anyone having a legitimate interest could prosecute that right in terms of

Art 126 (2) of the Constitution. There would be no objection in limine to the wife of the

deceased instituting proceedings in the circumstances of this case.

The Supreme Court of Sri Lanka has specifically indicated that "It could never be contended

that the right ceased and would be ineffective due to the intervention of the death of the

17 Shanthi Chandrasekaram Vs. D.B.Wijeyatunga and Others (1992) 2 Sri. L.R 293 18 [2003] 1 Sri. L.R pages 14 – 29



63

person, especially in circumstances where the death in itself is the consequence of injuries

that constitute the infringement. If such an interpretation is not given it would result in a

preposterous situation in which a person who is tortured and survives could vindicate his

rights in proceedings before the Court, but if torture is so intensive that if results in death,

the right cannot be vindicated in proceedings before this Court. In my view a strict Literal

Construction should not be resorted to where it produces such an absurd result."

The Supreme Court of Sri Lanka has distinguished the Somawathie vs. Weerasinghe and

others19

with this instant case. It was held that; "In Somawathie's Case application was

made by the wife of the Virtual Complainant alleging the infringement of her hauband's

fundamental rights guaranteed by Art 11,13(1),13(2),13(5),13(6) of the Constitution. At the

time the said application was filed, he was in the Remand Prison Mahara. But this instant

Case the detainee (deceased) had died in Remand Prison."

Art 126(2) of the Constitution provided that the infringement or imminent infringement of

fundamental right, he may himself or by an Attorney-at-Law on his behalf files the action

before the Supreme Court. The Supreme Court of Sri Lanka has established new

Jurisprudence through Judicial activism in Sriyani Silva Case.

Judicial Restraint

In Sriyani Silva (above) Case, Justice Edusuriya has delivered dissenting Judgment. Justice

Edusuriya has stated that "the International Convention Against Torture was ratified by Sri

Lanka in1994 where as the Constitution was promulgated in1978. It certainly cannot be said

that one can read into Art 126(2) of the Constitution of 1978 a Legislative intention in 1978,

to grant relief to a widow of a person whose fundamental rights have been infringed,

because Sri Lanka ratified the International Convention Against Torture sixteen years later

in1994, containing a provision to grant relief to dependants of victim of torture in the event

of the death of a victim as a result of torture."

Justice Edusuriya has delivered dissenting Judgment with Judicial restraint. Justice

Edusuriya has stated that ―the right to relief and the right to apply for relief are vested only

in the person whose fundamental rights have been infringed and are personal rights which

accrue to him and him alone , and therefore those rights must necessarily die with him."

Another land mark Judgment delivered by The Supreme Court of Sri Lanka in

Machchavallavan Vs. OIC, Army Camp, Trincomalee. It was held that "In Shanthi

Chandrasekaram's case20

in the course of hearing of the habeas corpus applications filed by

three Petitioners, the Court of Appeal considered that there was prima facie evidence of the

infringement of Art 11, 13(1) and 13(2)of the constitution and made reference to the

19 (1990) 2 Sri L.R. 121 20 (1992) 2 Sri. L.R.293



64

Supreme Court. The Supreme Court held that the detainee had been arrested in violation of

Art 13(1) and had been detained in violation of Art 13(2)."

The Supreme Court of Sri Lanka has referred above-mentioned Case in the

Machchavallavan's case and delivered (1) There was prima-facie evidence of violation of

fundamental rights contrary to Art13(4) of the Constitution. (2) The Court of Appeal should

have referred the entire matter to the Supreme Court under Article 126(3). (3) As the

evidence showed that the corpora had been removed by the Army, the state was liable for

the acts of the army officers and the state could be ordered to pay compensation and costs, to

the appellant.

Judicial Revolution in Sri Lanka on Violation of Torture

Sri Lanka has ratified the ICCPR, ICESCR, CAT, CEDAW, CERD and CRC.

Sri Lanka Judiciary has created "the jurisprudence" in Art 13(4) read with Art 126 of the

Constitution of Sri Lanka. In Sriyani Silva Vs. Iddamalgoda, Officer-in-Charge, Police

Station, Paiyagala and others21

Justice Fernando held; (1) The deceased died of torture by

the Police and that prevented him from seeking relief personally under Art 126(2) (2) Art 11

and 13 (4) by necessary implication recognize the right to life. Hence if a person died by

reason of torture or unlawful death (by the executive) the right of any person to complain

against violation of a fundamental right guaranteed by Art 17 read with Art 126(2) , should

not be interpreted to make the right illusory, but Article 126(2) should be interpreted broadly

especially in view of Art 4(d) which requires the Court to 'respect, secure and advance'

fundamental rights. Fernando .J further stated that

"Art 11 guarantees freedom from torture and from cruel and inhuman treatment or

punishment. Unlawfully to deprive a person of life, without his consent or against his will

would certainly be inhuman treatment, for life is an essential pre-condition for being human.

In any event , if torture or cruel treatment or punishment is so extreme that death results, to

hold that no one other than the victim can complain will result in the same anomalies,

inconsistencies and justice, as in the case of Art 13 (4) and 17. Here, too Art 126(2) must be

interpreted expansively‖. Fernando.J held that; "Art-11[read with Art 13(4)] recognizes a

right not to deprive of life." Fernando.J further analyzed the International torture

Convention. Justice Fernando stated that "the Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment provides that the

―Each state party shall ensure in its legal system that the victim of an act of torture obtains

redress and has an enforceable right to fair and adequate Compensation, including the means

21 [2003] 2 Sri. L.R. 63 - 79



65

for a full rehabilitation as possible. In the event of the death of the victim as a result of an

act of torture, his dependants shall be entitled to compensation."

This is the Landmark Judgment in Sri Lanka. Judicial activism and Judicial Revolution is

created by Justice Mark Fernando. Justice Mark Fernando has created "jurisprudence on

right to life through torture" in Sri Lanka. In another Judicial Revolution is established by

The Supreme Court of Sri Lanka in Lama Hewage Lal (Deceased) Rani Fernando (wife of

deceased Lal) and others Vs. Officer-in-Charge-Minor Offences, Seeduwa Police Station

and others22

The Supreme Court of Sri Lanka stated that Art 13(4) and in particular Art

126(2) of the Constitution should also be read widely to enable the lawful heirs and or

dependants to bring an action where death has occurred as a result of violation of Art 11.

The Supreme Court of Sri Lanka has invoked the International Human Rights Conventions

into its Judgment. The Court has referred that ―In Thomas vs. Jamaica23

where a Prisoner

who was awaiting execution was assaulted with a rifle butt and stabbed with a bayonet by

soldiers conducting a search of a prison. His clothes were also torn and were thrown back

into his cell. No Medical treatment was given to him. It was held by the UN Human Rights

Committee that the treatment to be degrading and contrary to Art 7 as well as Art 10 of

International Covenant on Civil and Political Rights,"

The Supreme Court of Sri Lanka has referred "the standard Minimum Rules for the

Treatment of Prisoners. It was held: that there have been several International Covenants

and Declaration concerned with the rights of the Prisoners. The General Assembly

Resolution 43/174 of 9th December 1988 adopted the UN Body of Principles for the

Protection of All Persons under any form of Detention or Imprisonment.

The United Nations Congress on the Prevention of Crime and the Treatment of offenders

had adopted the standard minimum rules for the treatment of Prisoners [adopted at the

Congress held in Geneva in 1955 and approved by the Economic, Social Council by its

resolution 663(c)(XXIV) of 31st July,1957 and 2076 (LXII) of 13th May 1997] , These

standard Minimum Rules refer to Discipline and Punishment.

The Supreme Court of Sri Lanka has concluded that the "Art 13(4) should be interpreted

broadly to mean that the said Article recognizes the right to life impliedly and that by

reading Art 13(4) with Art 126(2) of the Constitution which would include the lawful heirs

and /or dependants to be able to bring in an action in a situation where death had occurred as

a result of violation of Art 11 (Torture)‖.

In another Landmark Jurisprudence was established by The Supreme Court of Sri Lanka in

Machchavallavan vs. OIC, Army Camp Trincomalee24

, it was held; that " this Court must

consider the kind of relief that should be granted to the appellant. In a similar situation Dasai

22 [2005] 1 Sri.L.R. Pages 40-55 23 Communication No.366/1989 Views of UN Human Rights Committee, 2nd Nov. 1993 24 2005 1 Sri. L.R. Page 357



66

J in Sebastian M. Hongray vs. Union of India25

had held that exemplary costs from the

respondents and permissible in such cases. The Supreme Court of Sri Lanka has specially

indicated that

―The Commanding Officer has the authority to arrest and to detain and was in overall charge

of such operations. In the circumstances, the state is responsible for the infringement of the

fundamental rights of the corpora governed in terms of Art 13(4) of the Constitution.

It is to be borne in mind that respect for the rights of individuals is the true Bastian of

democracy and state has to take steps to redress the infringement caused by its officers to the

Corpora.

Landmark principle was created in this case. The Supreme Court of Sri Lanka has stated in

its Judgment that "the Court of Appeal should have referred the entire matter for

determination to the Supreme Court under Art 126(3) of the Constitution"

The above mentioned Judgments have created Jurisprudence in fundamental rights in Sri

Lanka and further Sri Lankan Appellate Courts have freely invoked the International Human

Rights Conventions and Regional Human Rights Conventions in to the Domestic

Jurisdiction.

Compensation and Cost for Violation of Torture

The compensation and costs have been ordered by the Supreme Court of Sri Lanka for

violations of torture. Justice Mark Fernando has delivered the Judgment in Sanjeewa, AAL

[on behalf of G.M.Perera] Vs. Suraweera, OIC, Police Station, Wattala and others26

It was

held that; ―the duty imposed by Art 4(d) to respect, secure and advance fundamental rights

.........extends to all organs of Governments and the Head of the Police (The Inspector

General of Police) can claim no exemption......... A prolonged failure to give effective

directions designed to prevent violations of Art 11, and to ensure the proper investigation of

those which nevertheless take place followed by disciplinary or criminal proceedings, may

well justify the inference of acquiescence and condonation if not also of approval and

authorization." It was further held; (1) The Petitioner was subjected to torture and to cruel

and inhuman treatment. (2) The Petitioner is entitled to compensation for infringement of his

rights and further to re-imbursement of medical expenses attributable to torture. Justice

Mark Fernando has referred the International Convention into his Judgment. It was held that

" the Citizens have the right to choose between State and Private medical care, and in the

circumstances the Petitioner's wife's choice of the latter was not unreasonable and was

probably motivated by nothing other than the desire to save his life. Art 12 of the

International Covenant on Economic Social and Cultural Rights recognizes the right to

25 (AIR) 1984 SC 1026 26 [2003] 1 Sri. L.R. 318 - 330



67

everyone to the enjoyment of the highest attainable standard of physical and mental

health."(Page - 330). It is the highest amount of compensation and Medical Cost Ordered by

the Supreme Court in Sri Lanka. This is the Precedent Judgment for the compensation of

Torture Victims.

Conclusion

a) No State Defenders for Torture

Attorney- General is the state supreme Legal Officer to Indict, Prosecute and defend for

state. Torture is the Offence under Torture Act in Sri Lanka. Attorney-General has decided

to not to appear for perpetrators of Violation of Torture.

b) Torture as Criminal Offence

Sri Lankan Government has ratified the convention Against Torture and enacted Torture Act

in Parliament. Torture is not only violation of fundamental right under Art 11 of the

constitution but also it is punishable offence under the Torture Act No.22 of 1994.

The Supreme Court of Sri Lanka has emphasized the above mention Laws and Acts in

Kumara Vs. Silva, Sub-Inspector of Police, and Others27

. It was held that " It is to be noted

that Art 11 refers to torture separately from cruel, Inhuman or degrading treatment or

Punishment similarly to Art 5 of the Universal Declaration of Human Rights. Art 7 of the

International Covenant on Civil and Political Rights as well as Art 3 of the European

Convention which had referred to torture separately from inhuman , degrading treatment or

punishment. The importance of the right to protection from torture has been further

recognized and steps had been taken to give effect to the universally accepted safeguards by

the Convention Against Torture And Other Cruel, Inhuman or Degrading Treatment or

Punishment signed in Newyork in 1984, which has been accepted in Sri Lanka by the

enactment of Act No.22 of 1994 on the Convention Against Torture And Other Cruel,

Inhuman or Degrading Treatment or Punishment."

The Supreme Court of Sri Lanka has further indicated that; ―thus it is evident that

notwithstanding the provision made in the constitution, regarding fundamental right on

freedom from torture , in terms of Act No.22 of 1994, torture is to be an offence and any

person who tortures any other person shall be guilty of an offence under the said Act."

27 [2006] 2 Sri.L.R. pages 236-252



68

c) Compare the View of The Human Rights Committee Geneva & the

Supreme Court Judgment In Sri Lanka

In Jegatheeswara Sarma Case28

Human Rights Committee Geneva delivered its view that;

―Committee considers that, for purposes of establishing state responsibility, it is irrelevant in

the present case that the officer to whom the disappearance is attributed acted ultravires or

that superior officers were unaware of the actions taken by that officer. The Committee

therefore concludes that, in the circumstances, the state party is responsible for the

disappearance of the Author's son‖. When we compare the view of the Human Rights

Committee Geneva with The Supreme Court of Sri Lanka's Judgment in Machchavallavan's

Case29, The Supreme Court of Sri Lanka stated that ―the Commanding Officer has the

authority to arrest and to detain and was in overall charge of such operations. In the

circumstances the state is responsible for the infringement of the fundamental rights of the

Corpora governed in terms of Art 13(4) of the Constitution. It is to be borne in mind that

respect for the rights of individuals is the true bastian of democracy and state has to take

steps to redress the infringement caused by its Officers to the Corpora.

The view of the Committee of Sarma's Case is that the state is responsible for the

disappearance of the author's Son. In the Judgment of Machchavallavan's case is that the

state is responsible for the infringement of the fundamental rights of Corpora. The view of

the Human Rights Committee is not binding nature. However Judgment of Supreme Court

is binding.

A blind Justice is merely an impartial Justice. True Justice would have eyes in the back of

her head and a pair of mismatched shoes.‖

― Eli Ashpence

28 Views of the Human Rights Committee, in Comunication No.950/2000 (Sri Lanka - 31.07.2003)

CCPR/C/78/D/950/2000 29 Machchavallavan Vs. OIC, Army Camp, Trincomalee (2005) 1 Sri L.R. page 357

http://www.goodreads.com/author/show/5205814.Eli_Ashpence



69

Charge

Palitha Fernando, P.C. Former Attorney General

An accused before a Magistrate‘s court can be either convicted or acquitted of the

offence charged with, unless proceedings are terminated during the course of the trial.

However, a Magistrate is entitled to discharge an accused at any stage of a trial, and also

would be entitled to acquit an accused at any stage of the trial, if he is of the view that

proceeding with the case would not result in a conviction of the accused.1

Generally, an accused is either convicted or acquitted of the charges in the charge sheet.

There can however, arise a situation where the evidence led by the prosecution does not

establish the charges set out in the charge sheet, but sufficient evidence to convict the

accused of another charge is elicited by the prosecution. In such a situation, two courses of

action are available to the Magistrate:

1. Amend the charge sheet and convict the accused of the offence established by

evidence;

2. Convict the accused of the charge established, without amending the charge sheet.

Where a Magistrate wishes to amend the charge sheet, during the course of the trial, there

are several steps he is expected to take. The request for a suitable amendment can come

from the prosecutor. The Code of Criminal Procedure Act contains provisions permitting

such amendment.2 The provisions of the Code of Criminal Procedure are clear that the court

should permit such amendment and the only consideration left to the discretion of court is

whether the trial should be proceeded with immediately thereafter or an adjournment or a

fresh trial should be ordered.3 In making such a decision court should consider the prejudice

such amendment could have on the accused and the prosecution. If however, Magistrate

forms the opinion that there is evidence to convict the accused for a different offence, at the

end of the trial, court should consider the prejudice that it would cause to the accused, Our

courts have always taken the view that an amendment which serves the cause of justice

should be permitted.4 The fact that the prosecutor has been negligent in framing the charge

has been held not to be a basis for refusing an amendment to an indictment.5 In the case of a

1 Section 186 of the Code of Criminal Procedure Act 2 Section 167 of the Code of Criminal Procedure Act 3 Sections 167 and 168 of the Code of Criminal Procedure Act 4 Aron Appuhamy v. The Queen 51 NLR 358, Doole v. The State 1978/1979 2 SLR 33 5 Perera v. Weerasinghe 53 NLR 158



70

charge sheet before a Magistrate‘s Court, it should be noted that the primary responsibility

for the accuracy of the charge is on the Magistrate. The complainant files a report before the

Magistrate‘s Court informing the Magistrate that an offence he could try summarily has

been committed within his jurisdiction. Thereupon, if satisfied the Magistrate is required to

frame the charges according to law.6

A Plaint filed before a Magistrate‘s Court is addressed to the Magistrate and signed by the

complainant. The charge sheet on the other hand is addressed to the accused and is signed by

the Magistrate. Therefore, it is the duty of the Magistrate to ensure that the charge is a

legally tenable charge. Though it has been held that where an accused appears in court after

the police filed a report stating the facts to court and the Magistrate explains the charge on

the basis of the report, the failure to frame a charge would not affect the legality of the

proceedings,7 our courts have consistently held the view that the Magistrate‘s failure to

frame a charge and sign it, is a fatal irregularity.8 In practice however, the complainant files

a charge sheet along with the plaint. This is a method adopted for the sake of convenience,

without any legal basis. Therefore it is necessary to bear in mind that it is the responsibility

of the Magistrate to have the charges read out and also to sign the charge sheet and file it of

record. It is customary for the complainant to mention the charges in the plaint. However, a

Magistrate is not required to follow the plaint in framing charges. Magistrates are perfectly

at liberty to refuse to issue process if they are not satisfied with the facts disclosed in the

plaint. In practice however, Magistrates sign the charge sheet filed with the plaint even

without reading the plaint. There is no alternative in view of the lack of time. In order to

overcome this situation, a useful method would be to appoint a legal registrar to every

Magistrate‘s court. The legal Registrar should be an Attorney at law, with around 2 years‘

experience, and it should be his function to attend to all calling cases before the Magistrate

and also fixing them for trial when the case is ready for trial. He should also examine all

plaints and approve them for the Magistrate‘s signature. He should recommend to the

Magistrate cases in which process should be refused.

I would recommend that every new recruit to the judiciary should serve as legal registrar for

a minimum of 18 months before appointment to the judiciary. In New South Wales Australia

there is a similar system where the officer is designated the listing judge. He attends to all

calling matters and fixes cases for trial and sends up the brief to the Judge who hears the

cases. No postponements are granted where a case is fixed for trial

Where the evidence led at the trial discloses the commission of a different charge, the

Magistrate is entitled to amend the charge and convict the accused of that charge. However,

if the amended charge requires the following of a special procedure before instituting

proceedings, then the trial cannot be proceeded with, without following that procedure. If for

6 Section 182 of the Code of Criminal Procedure Act, see also Attoney General v. Baskaran 64 NLR 62, Rex v.

Rodrigo 55 NLR 49 7 Tennekoon v. Dahanayake 40 NLR 36 8 Abdul Sameen v. Bribery Commissioner 1991 1SLR 76,David Perera v. Attorney General 1997 1SLR 390,

Fernando v. Attorney General Srikantha‘s Law Reports, Vol. II Part 1 page 1, Godage and others v. OIC Kahawatte



71

example the amended charge is one of furnishing false information to a public servant,

punishable in terms of section 175 of the Penal Code, since the institution of proceedings

need the sanction of the Attorney General,9 the trial will have to be postponed until such

sanction is obtained.

During the course of a trial, if a Magistrate decides to amend the charge, there are several

steps that have to be taken:

1. The amended charge should be read to the accused;

2. His plea to the amended charge should be recorded;

3. The Magistrate should decide whether he should proceed with the trial or a

postponement should be granted or a fresh trial should be ordered.

In a case of misappropriation, where the Magistrate found that the amount mentioned in the

charge as the amount misappropriated was different to the amount established as the

misappropriated amount disclosed by the evidence led at the trial and altered the charge to

read the correct amount and convicted the accused but did not read the amended charge to

the accused before proceeding to convict him. In appeal it was argued that it was a fatal

irregularity. However, court held that the alteration was not an amendment contemplated in

the section and held that the failure on the part of the Magistrate to read out the alteration to

the accused would not vitiate the conviction.10

The course of action discussed above is the step that could be taken by a Magistrate to

amend a charge sheet in order to fall in line with the evidence elicited during the course of

the trial where the evidence fails to establish the charge with which the accused is charged,

but establishes a different charge. That is to amend the charge sheet. However, the code of

Criminal Procedure Act also contains provisions that permit the finding of an accused guilty

in similar circumstances of a charge different from the one with which he was charged

without amending the charge sheet.11

The provisions of section 177 should always be read with the provisions of section 176 of

the Act. Section 176 provides for a situation where it is possible to have alternate charges in

a charge sheet. Section 176 provides for a situation where a single act or a series of acts are

of such a nature that it is doubtful what offence the facts proved would constitute since on

the proved facts it is possible that a court may find the accused guilty of more than one

offence. It would be extremely important to note that the provisions of section 176 will

apply only to a situation where there is a doubt about the offence of which the accused might

be found guilty and not the facts that the prosecution would be able to prove. The provisions

of section 176 cannot be utilised to prefer alternate charges where there is a doubt on the

facts the prosecution would be able to prove.12

9 Section 135 of the Code of Criminal Procedure Act 10 Siyambalagastanne v. OIC Kandy 1998 1 SLR 78 11 Sections 177 to 179 of the Code of Criminal Procedure Act 12 Salgdo v. Mudali Pulle 43 NLR 94



72

When deciding to include alternate charges in a charge sheet, a prosecutor should first be

certain of the facts that could be established. Thereafter, on the basis of such facts, the

prosecutor should decide whether there is a doubt as to of what offence court might find the

accused guilty, if such facts are established. A simple example that could be cited is a case

where a person is found having in his possession stolen goods soon after a theft. The

prosecution should establish that the suspect was found having in his exclusive possession

stolen goods soon after the theft. However, there is a doubt as to the offence of which the

accused might be convicted by court. It could be of the offence of retention of stolen

property punishable in terms of section 394 of the Penal Code, or of the offence of theft

punishable in terms of section 367 of the Penal Code on the basis of a presumption drawn in

terms of section 114 of the Evidence Ordinance.

In view of this position the accused can be charged with theft or retention of stolen property,

or both charges could be included as alternate charges in the same charge sheet13

If the

accused is charged with theft and the evidence discloses that the offence committed by the

accused is retention of stolen property, court can convict the accused of the offence of

retention of stolen property on the basis that it was a charge that could have been preferred

against the accused as an alternate charge on the basis of the material in the possession of

the prosecution at the time the charges were framed. It should however be reiterated that

alternate charges are possible only where, on the available facts, it is doubtful as to the

offence of which the accused would be found guilty. If in the above example, in addition to

the property found in the possession of the accused there was evidence of finger prints of the

accused found at the scene, alternate charges of retention would not be possible as according

to the evidence, the only offence of which the accused could be found guilty would be theft.

Stolen goods would not be stolen property for the purpose of a charge of retention of stolen

property so long as they remain in the possession of the thief. It has been observed that

sometimes before the Magistrate‘s court, alternate charges of theft and retention are

preferred with the intention of giving the accused an opportunity of pleading guilty to a

charge of retention so that the charge of theft can be withdrawn. It should be mentioned that

this procedure is clearly wrong.

Yet another important matter that should be mentioned is that where an accused is charged

with alternative charges, he can be convicted only of one of them.14

The simple logic behind

it is that when alternate charges are preferred the prosecution proceeds on the basis that the

accused is guilty of one of those charges and not both.

In terms of section 177 of the Penal Code an accused charged with one offence can be

convicted of a different offence if that offence is one that could have been preferred against

the accused as an alternate charge with the original charge. If not, the correct course of

action would be to amend the charge sheet and add the new charge before convicting the

accused of it.

13 Section 176 of the Code of Criminal Procedure Act 14 Wimalasena v. IP Hambantota 74 NLR 176, Stephen v. IP Fort 69 NLR 42, Rex v. Seymour 1 WLR 678



73

Where an accused was charged with murder, during the course of the trial it was established

that he could be found guilty only of abetment. The accused was found guilty of abetment of

murder without amending the indictment. Court held that it was possible, as, according to

the facts of the case, it was possible to have a charge of abetment as an alternate charge. The

evidence of the case in the possession of the prosecution established that the accused abetted

the commission of the offence of murder and also the accused was present at the scene at the

time the offence was committed. In the circumstances, in terms of section 107 read with

sections 296 and 102 of the Penal Code, it was permissible for court to convict him either of

murder or abetment of murder.15

However, it has been held that a person indicted on a

charge of abetment of attempted murder cannot be convicted of voluntarily causing hurt

without an amendment to the indictment.16

It has also been held that a person charged with

causing hurt cannot be convicted of rioting in terms of this section,17

and that a person

indicted with murder cannot be convicted of disappearing evidence of a capital offence by

utilising the provisions of this section.18

In certain instances where Information Book Extracts in cases of rape are forwarded to the

Attorney General‘s Department for the consideration of indictments, State Counsel are faced

with a difficulty as the evidence on record does not clearly establish penetration or since

there is conflicting evidence between the prosecutrix and the Judicial Medical Officer on the

issue of penetration. In such instances it would not be permissible to forward indictment

having Rape and Grave Sexual abuse as alternate charges since the doubt is in respect of the

facts that could be proved by the prosecution. In a recent unreported case, the Court or

Appeal has set aside a conviction on the offence of Grave Sexual abuse of an accused

originally indicted with rape but convicted of Grave Sexual abuse, without an amendment to

the indictment.19

The Code of Criminal Procedure Act provides that when a person is charged with an offence

consisting of several particulars and when some of such particulars are established, it

constitutes a different offence, the accused could be convicted, without amending the charge

sheet, of the offence that is constituted when some of those particulars are proved.20

This

situation has been described as a situation where the offence proved is included in the

offence charged. Where an offence consists of several ingredients and where some further

ingredients are proved a different offence is established, these provisions could be utilised to

convict the accused of the offence which is established, without amending the charge sheet

even though the proof of additional ingredients would be required to convict the accused of

the offence with which he is charged. Some simple examples that could be cited are where

an accused is charged with the offence of public property or where an accused is charged

with Criminal Breach of Trust. In the first example, in addition to the ingredients of theft,

15 King v. Hendric Appu 7 NLR 97 16 Rex v. Dharmapala 67 NLR 450 17 King v. Mendis 39 NLR 182 18 Wellasamy v. The Queen 63 NLR 271 19 Gratien Perera v. The Attorney General, CA 88/2002, decided on the 19th of8 June 2007, see also Kankanamge

Upatissa v. The Republic CA 188/02 decided on 27th March 2008 20 Section 178 of the Code of Criminal Procedure Act



74

the prosecution should also establish that the property in question was public property. If

this ingredient is not established, it would be permissible for court to convict the accused of

the offence of theft, without an amendment to the charge sheet. In the second example, in

order to establish a charge of Criminal Breach of Trust, the prosecution would have to

establish the ingredients of Criminal misappropriation of property and in addition the

ingredient of entrustment.

If in a case where an accused is charged with Criminal Breach of Trust, the prosecution fails

to establish the ingredient of entrustment, court would be entitled to convict the accused of

the offence of Criminal Misappropriation of property without amending the indictment. In

both those instances court would be acting in terms of the provisions of section 178 of the

Code of Criminal Procedure Act.

The rationale of these provisions is that the accused had notice of the offence with which he

was convicted as it was included in the offence with which he was charged. It should

however be noted that it would not be possible to convict the accused of the offence which

requires the proof of additional ingredients, without amending the charge sheet. For

instances if an accused is charged with theft and during the course of the trial it is proved

that the property was in fact public property, it would not be possible to convict the accused

of theft of public property without amending the charge sheet.

Section 178 of the Code of Criminal procedure provides for yet another instance where a

court can convict an accused for a different offence other than the one with which he was

charged, without mending the charge sheet. That is where evidence of certain circumstances

that reduces the offence is led during the course of the trial, the accused can be convicted for

the reduced minor offence without amending the indictment. The provisions of this section

are quite frequently utilised in the High Court. It should be noted that Section 164(5) of the

Code of Criminal Procedure Act provides that the fact that a charge is made is equivalent to

a statement that every legal condition required by law to constitute the offence charged was

fulfilled in the case. Thus when an accused is indicted with murder, it is equivalent to a

statement that the death was caused intentionally in the absence of any of the mitigatory

circumstances such as provocation or private defence.

However, during the course of the trial, if evidence of circumstances that mitigate liability is

established, court would be entitled to convict the accused of the lesser offence without

amending the charge sheet. Where an accused is charged before the Magistrate‘s court with

having committed voluntarily causing grievous hurt, punishable in terms of section 317 of

the Penal Code and during the course of the trial, evidence is elicited to establish that the

offence was committed under provocation, court would be entitled to convict the accused of

an offence punishable in terms of section 326 of the Penal Code without amending the

charge sheet. However, if the offence, of which court is entitled to convict the accused on

the available evidence, is an offence in respect of which a special procedure has to be taken,

before the institution of proceedings, such as securing the sanction of the Attorney General,



75

it would be necessary to follow such procedure before convicting the accused.21

Section 179 of the Code of Criminal Procedure Act provides that where a person is charged

with an offence and at the trial it is established that the offence was not committed but there

was only an attempt to commit the offence, it is possible to convict the accused of the charge

of attempt without an amendment to the charge sheet. A possible example would be a case

of cheating. Deception is an essential ingredient of the offence of cheating. If the victim on

whom the deception was attempted was not deceived, the offence would be attempted

cheating. A fact that should be noted is that the provisions of section 179 of the Code of

Criminal Procedure Act could be utilized only if attempt to commit the offence is an offence

in Sri Lanka. This however would not be applicable to offences punishable in terms of the

Penal Code, as attempt to commit any offence punishable in terms of the Penal Code is an

offence in Sri Lanka. Even if the Penal Code does not contain specific provisions in respect

of such offences section 490 of the Penal Code provides for the punishment of attempt to

commit all offences under the Penal Code.

Where a person is charged before a court, the duty of the prosecution is to lead evidence to

establish the ingredients of the offence. It is the duty of the Magistrate to consider whether

the prosecution has succeeded in establishing the ingredients of the offence beyond a

reasonable doubt. Failure to establish even one ingredient is fatal to the prosecution and the

Magistrate should acquit the accused without even calling for a defence.22

However, as

discussed earlier, even though, the evidence led, fails to establish the ingredients of the

offence with which the accused is charged, if it establishes the ingredients of any other

offence, the Magistrate should consider whether he should amend the charge sheet, or

whether it is possible for him to convict the accused of the offence disclosed, without

amending the charge sheet. What I have attempted above is to discuss the provisions of law

that would be applicable in such a situation.

21 Section 178 (2) read with section 135 of the Code of Criminal Procedure Act 22 Nallarakku Pillai v. Khaleel 72 NLR 114, Mahafoor v. S de S Gunasekera Healh Inpector 60 NLR 286, Weerai v.

Samarakoon 62 NLR 212, Ariyaratnam v. SI Police 62 NLR 451, Kachcheri Mudaliyar v. Mohomadu 21 NLR 369



76

A Fundamental Insight Into

Criminal Appeals and

Essential Principles of Law

To Be Followed By Trial Judges

Dr. Ranjit Fernando

Attorney-at-Law

The writer, who does not claim to be a “Jack of all Trades” and certainly not a “Master of

One”, will attempt a fundamental insight into two main areas of Criminal Jurisprudence he

may be familiar with, namely: criminal appeals and matters of law, to be borne in mind by

Judicial Officers conducting criminal trials.

Criminal Appeals

AN APPEAL is a procedure by way in which you can seek a remedy, redress or relief if

one is unhappy or dissatisfied with an Order, one has been subject to. It is a fair process and

the law recognizes it to be so. Without this process of appeal, individual rights can be

subject to unfairness, unreasonableness or sometimes even genuine mistakes of human

beings, who are not infallible. Human beings make mistakes not one but many. It is for this

reason that sometimes there is more than a single right of appeal in a given situation. It is

normally the practice in the law of any land to afford a litigant a Right of Appeal whether it

is in any civil or criminal matter. It is also observed that in serious matters where the life and

liberty of an individual is involved there are provisions for more than one Appeal; primarily

to ensure that eventually justice and fair play will prevail. This type of facility helps to

ensure the compliance of the maxim ―Justice should not only be done but must appear to be

done”.

In Sri Lanka we have various stages where the Right of Appeal is given to

litigants. During the time prior to becoming a Republic we had a Right of Appeal where the



77

Law Lords of the U.K. sat in final judgment over matters referred to it by Common Wealth

Countries. After the Republican Constitution the Right of Appeal to the Privy Council was

done away with and the final Appeal was before the most superior court in Sri Lanka having

the jurisdiction to entertain criminal appeals. However it must be remembered that

judgments of Privy Council cases relevant to Sri Lanka are still binding and are being

followed by the Courts to date.

Appeal Procedure itself very broadly takes the form of two types of applications,

i.e. Judgment or an Order of a court can be changed in part or in whole by a superior court,

either by way of a ―Regular‖ Appeal or by way of an application for Revision. One must

remember that an Appeal lies to a superior court and there is no Right of Appeal to a court

of same jurisdiction and power.

Appeals take one of two forms. It can be a “Regular Appeal” or it can be in the

form of a “Revision” Appeal. Regular Appeals are opportunities given to litigants as of

right. E.g. If a person is dissatisfied with an Order of a High Court, he is given the right to

appeal against such an Order to the Court of Criminal Appeal. The Petition of Appeal must

be lodged with the High Court Registry within 14 days of the date of the order appealed

against. The Petition should be addressed to the Court of Appeal although lodged with the

High Court Registry. The Appeal can be on matters of fact and/ or on matters of Law. It

must also indicate what aspects of the High Court Order the Appellant is complaining about.

It can be signed by the Accused himself or an Attorney-at-Law on his behalf. An Appeal in

this manner may be lodged against conviction and sentence or sentence alone. Irrespective

of merit, once a Petition of Appeal is lodged, a brief on appeal is prepared by the original

court and submitted to the higher appellate court for hearing. The merits of the matter would

be considered and decided by the appellate court. The Right to Appeal is a right given by

law to all litigants and once a Petition of Appeal is lodged within the stipulated time and

according to the procedure, the Appellate Court is obliged to hear the Appeal. In fact this

right is recognized to such an extent that even if an Accused is not present during the trial

and has been tried and convicted in absentia, an Accused although may have even ―jumped

bail‖, is still entitled to lodge an appeal against his conviction and sentence and have his

appeal heard and determined by a Superior Court as of right, although he had absconded

from trial. After hearing such Appeal, even an absconding Accused Appellant, tried in

absentia, is entitled to relief.

The other types of appeals are Applications in Revision. There is a fundamental

difference between regular Appeals and Applications in Revision. A Revision Application is

called in law an ―extra-ordinary discretionary remedy‖. It is not available to litigants as a

matter of right, unlike normal appeals. The discretion to exercise revisionary jurisdiction is

with the relevant superior court. Usually when there is a right of Appeal within 14 days an

application for revision is not made. A revision application is made by way of a Petition and

Affidavit with supporting documents and is filed in the relevant superior court whose

jurisdiction invoked, unlike in a regular appeal, where the Petition (without an Affidavit) is



78

lodged in the original court from whose order one is appealing. A revision Application must

have merit on the face of such application, i.e. there must be an apparent ― error on the face

of the record‖ for the superior court to act in revision. Further, although 14 days may have

lapsed since the order of the original court one must move in revision within a ―reasonable‖

period of time. The term ―reasonable‖ period might vary from case to case but generally, is

calculated in months and not years. In a revision application, valid and acceptable reasons

must be given as to why a regular appeal was not filed in the first instance and also if the

delay in making the application is inordinate, reasons must be given for such. As mentioned

the Court will act in Revision by using its discretion where circumstances are extra ordinary

and calls for remedial action by Court. In fact a Petition for revision is not entertained as a

matter of course but, has to be supported in open court and if the court is satisfied, notice is

issued on the Respondent. Even after notice the State can file their objections to the

application.

The Relief that can be prayed for and obtained in both regular Appeals and

Revision Applications are the same. For instance, after hearing arguments of both sides

(aggrieved party/ Attorney General) the Court sitting in Appeal could grant one of the

following reliefs.

Appeal allowed: Accused Appellant Acquitted

Appeal dismissed: Lower Court Order/ Judgment affirmed

Acquitted on original charge but convicted for offence of lesser culpability.

Where Appellant succeeded on technical point although there was an abundance of

incriminatory evidence, the Court sitting in Appeal may order a re-trial (Trial de

Novo), before the original Court on the same charge.

It should be noted that an Appeal against the sentence is also permitted and

entertained even where an accused has pleaded guilty to the charge. An Appeal against

sentence only, is permitted if the sentence passed by the lower court is either, not according

to the law or appears manifestly excessive. In such instance the Court of Appeal will

interfere.

Appeals to the Court of Criminal Appeal usually come from the High Court trials

which may have been with or without a jury. After the Petition of Appeal is lodged in the

High Court, and once the brief on appeal is prepared and sent to the Registry of the Court of

Appeal by the High Court, it is listed, called in open Court and date given for argument. The

Attorney General is also represented by one of its senior officers. The Accused Appellant is

also brought into Court at the hearing of the appeal. The time taken to argue an appeal

depends on the volume of brief and how complicated the case might be. The brief contains

all proceedings of the trial in the High Court and the arguments in the appeal, strictly

speaking are confined to the four corners of the brief i.e. no extraneous matter which has not

been recorded at hearing at the High Court trial can be referred to or considered at an Appeal

stage. There is however provision under very exceptional and rare circumstances where new



79

evidence has been led or matters outside the brief referred to, during arguments in Appeal.

These are rare occasions, very few and far between and usually frowned upon and not

encouraged by Court unless very strictly according to Law

After a ruling by the Court of Appeal there is still provision to move the Supreme

Court on an important matter of law which the Court of Appeal may not have considered

adequately. This is not as a matter of right but by way of Special Leave granted either by

Court of Appeal itself or by the Supreme Court on an Application made for Special Leave to

Appeal. This is also by way of Petition/ Affidavit with a copy of the Court of Appeal Order

and other relevant proceedings annexed thereto. The procedure proper for such application is

set out in the Rules of the Supreme Court/ Court of Appeal in force presently. It should be

mentioned that Special Leave to Appeal to the Supreme Court is granted only if there is an

important question of law to be considered by the Supreme Court or which has not been

considered by the Court of Appeal. Usually, the Court of Appeal deals with matters before

it, so exhaustively that there is hardly any room, opportunity or occasion left to invoke the

jurisdiction of the Supreme Court by way of Special Leave.

It has been said herein-before that appeals which come from the High Court may be

from a Jury Trial or non-Jury Trial. With regard to non-Jury Trials it is the Order of the

Trial Judge which is canvassed before the Court of Appeal. To obtain relief it must be

demonstrated to the Court of Appeal that the Trial Judge erred in fact or in law or in both.

Relief as of appeal that the Trial Judge had so erred. In the case of Trial before a Jury the

Court of Appeal must be satisfied that the Jury had been misdirected on the facts or the law

or both, by the Trial Judge. Also, even if there are no such misdirections or non-directions if

the verdict of the Jury is unreasonable and cannot be supported having regard to the

evidence, then the Court of Appeal will interfere and grant appropriate relief as the

circumstances of the case demands. The right to go to the Supreme Court even thereafter is

present whether it be a Jury or a non-Jury Trial in the High Court.

Before the Court of Appeal matters of fact are hardly canvassed unless the

misdirections and non-directions on the evidence are so great that the verdict cannot be

support on the evidence led. On the other hand matters of law are more frequently canvassed

and for instance if a proper procedure has not been followed or a statutory obligation not

complied with by Judge or Jury, the Court of Appeal will take a very serious view of such an

omission unless where the obligation is not mandatory and no prejudice has been caused to

the Appellant. (Illustrations *exercising of Jury option *permissible division of Jury verdict

and *contents of Judgment etc.).

It should be noted that all provisions relating to Appeals/Revisions by and large,

apply generally to the State (the Attorney General) as well; giving the Attorney General the

right to Appeal against any acquittal or sentence imposed by a Court.



80

Principles of Law

A Trial Judge should necessarily deal with offences viz;

Murder

Culpable Homicide not amounting to Murder

Attempted Murder

Rape

Preferably in the following manner:

Re: Murder / Culpable Homicide not amounting to Murder / Attempted Murder

- Section 294 of the Penal Code and its 4 limbs with the punishment for murder

stipulated in Sec. 296.

- The punishment for culpable homicide not amounting to murder as set out in

Sec. 297 of the P/C.

- The question of INTENT which would have to be deduced and inferred from

deeds and words. Also consideration would have to be given to the weapon

used/ location and number of injuries/ motive (if any)/ prior and subsequent

conduct which would assist in deducing any pre-meditation/ pre-plan.

- A “Murderous Intent” would be a necessary ingredient in a charge of Murder

where a mandatory death sentence follows.

- However even if a ―murderous intent‖ is entertained it could still fall under the

special exceptions set out in the Penal Code viz: Grave and Sudden

Provocation (GSP) Exceeding the right of private defence which are offences

inviting lesser culpability Amounting to the offences of culpable homicide not

amounting to murder which could be visited with a maximum sentence of 20

years rigorous imprisonment. These exceptions have been spelt out under Sec.

294 of the Penal Code and should be read together with the provisos and

illustrations set out therein.

- Where there is no ―Murderous Intent‖ but only “Knowledge” – it would still

be culpable homicide not amounting to murder but the punishment would go

up to maximum of 10 years rigorous imprisonment under Sec. 297 of the

Penal Code.

- It is also to be noted that there are General Exceptions stipulated in the Penal

Code. e.g. Where intoxication is relevant, consideration the state of

intoxication and whether it would amount to such a state that an accused would

have been more susceptible

- Further sections 89, 90, 92 and 93 of the Penal Code deals with the exercise

of the right of private defence whether in respect of self or another. However,

the sections require a reasonable apprehension to be entertained as a vital

ingredient to have the benefit of this exception which would invite total

exculpation.



81

Knowledge” and the absence of “Intent” would arise in circumstances where

the evidence indicates absence of a motive/ injury located in a non-vital area/

single injury/ previous and subsequent conduct of the accused/ apparent

restraint and even assistance offered after incident.

Also presently our Law has recognized the concept / principles making

applicable the Doctrine of Cumulative and Continuing Provocation. The

authorities relating to this concept has been set out in the following Texts and

Authorities.

Prof. G. L. Peiris on the Penal Code

Ceylon Law Journal June 1971 – pg. 101 (M. Sonaraja)

It should also be remembered that even if the indictment is for the offence of

Murder, Culpability could be eventually arrived at for the offences of not only

Culps NAM but even Grievous/ Simple Hurt provided that the question of

Intention / knowledge and other ingredients are satisfied.

Re: Rape

The areas of evidence for consideration in the background of our Case Law would be related

to;

Belated Complaint – with no reason given for belatedness

Medical Evidence – Whether hymen tear is contemporaneous with date of the

incident

Question of “Consent” – where consent is irrelevant (under 16 years – Statutory

Rape) a Jury Trial cannot be opted for in view of subsequent amendment to

Judicature Act.

Corroboration of certain material aspects of the evidence to be looked for if the

situation so demands.

Credibility of the victim on the basis of her spontaneity/ consistency in the

absence of any compelling motive to falsely implicate

Medical evidence could be corroborate a sexual act/ posture/ nature of injury/

duration and likely force used

The trials before any court would also have to necessarily deal with the following concepts

of law.

a) Circumstantial Evidence

b) Common Intention

c) Section 27 of Evidence Ordinance statements – Recovery

d) Evidence of Accomplice

e) Divisibility of Credibility

f) Dying depositions

g) Dock statement/ Alibi Defence

Presumption under Sec. 114 of Evidence Ordinance



82

a) Circumstantial Evidence

Likened to a rope where even if one strand is missing the strength of the rope

would remain intact. This would be the modern approach as opposed to the old-

approach of a chain illustration where the case fails if one link is missing. Mere

cloud of suspicion would not suffice. The inference eventually drawn must be

irresistible, not only consistent with guilt but inconsistent with innocence. It should

be an inference from which there should be no escape.

b) Common Intention

―Common Intention‖ must be distinguished from a ―similar intention‖ further a

―mere presence‖ is insufficient and a ―participatory presence‖ is required. The case

of each accused involving section 32 of the Evidence Ordinance must be

considered separately.

In a charge of Murder the common intention should be necessarily a ―Common

Murderous Intention‖.

c) Section 27 of the Evidence Ordinance Statements on Recovery

Where there is a ―discovery‖ or a ―recovery‖ consequent to a statement given by

the accused under Sec. 27 of the Evidence Ordinance, the principle feature which

follow such a recovery to be noted is that a Section 27 Recovery gives rise only to

a ―Knowledge of whereabouts‖ and not necessarily the guilt or that object in

question had been used in commission of the crime. The Accused should also be

under custody at the time the statement is recorded.

d) Evidence of an Accomplice

When considering the probative value of the evidence of an accomplice who gives

evidence under a conditional pardon in particular, the principles which have been

followed are that the evidence of an accomplice is generally viewed with suspicion

and should be considered carefully and even cautiously and accepted and acted

upon only when it is corroborated and found to be convincing. As such witnesses

are considered testifying with ―Halters around their necks‖.

The English Law and Sri Lankan Law are more or less identical regarding the

approach to accomplice evidence; and in England it is more a rule of law that an

accomplice‘s evidence must be at the very least be intrinsically credible before

corroboration is looked for. In fact corroboration becomes necessary only when the

accomplice is a reliable and credit worthy witness.

It would be a serious misdirection or a self non direction amounting to a

misdirection if the Court considers as corroboration what is in law is not

corroboration.



83

e) Divisibility of Credibility

The principles followed in the application of the maxim ―falsus in uno falsus in

omnibus‖ have been laid down over the years by Case Law on the premise that ―he

who speaks falsely on one point will speak falsely upon all‖ and the evidence of

such witness if it appears truthful in part, even such part if it could be distinguished

from the part which is false, a probative value will be attached only if there are

compelling reasons for acting on such evidence.

f) Dying Depositions

The Law relating to Dying Depositions encompasses situations where the

declaration could be in writing or verbal. It must at least relate to the proximal

cause of death and contemporaneous with the occurrence of death and in

situations where the deceased could have reasonably anticipated the event of death

occurring. The deponent must be competent physically and medically capable of

making such a dying deposition. This is inferred principally through the medical

evidence led and surrounding circumstances which may or may not indicate

whether the deponent was sufficiently conscious and capable of making such an

utterance.

The Court should necessarily be cautious of their inability to have the deponent

cross examined. Consequently the extent to which the deposition is corroborated or

contradicted by other facts and surrounding circumstances proved in evidence

would have a bearing on the probative value of a dying deposition.

g) Dock statement / Silence of the Accused and Alibi Defence

It is Trite Law that although the English Legal System does not recognize the right

of an Accused to make a statement from the Dock, Sri Lankan Law has entrenched

this right over a period of time. The principles which have to be followed basically

are that a dock statement though without on oath or under cross-examination

should be considered as evidence in the case. If it is accepted and believed the

accused is entitled to an acquittal. Even it is disbelieved and rejected in toto the

burden of the prosecution to establish its case beyond reasonable doubt remains.

Further our law also recognizes an intermediary position where the dock statement

could neither be believed nor be disbelieved.. In such circumstances the benefit

should be given to the accused.

It should also be noted to take into account the content of a dock statement of one

accused against a co-accused.

A defence of alibi can be raised either on oath or through dock statement. Basically

the position of an accused who raises an alibi amounts to the fact that he was

elsewhere at the time of the alleged criminal act. It is an evidentiary fact by which

it is sought to create a doubt whether the Accused was present at the time of the

offence was committed. Where the defence is that of an alibi there is no burden on

the accused to establish that fact to any degree of probability. He merely has to



84

create a doubt in the case of the prosecution.

An alibi defence does not require proving or corroborating by an accused in

anyway. It merely has to raise a doubt in the case for the prosecution with regard to

the likelihood or unlikelihood of the accused‘s presence at the scene and at the time

of the crime. The geographical location and physical impossibility to be at both

places at the same time would be relevant when considering the probative value

taken up by an accused.

Some Areas Where Trial Judges Inadvertently Fall Into Error

Application of the Facts to the Law and Vise-Versa

A general statement of the law followed by a statement of facts is undesirable and the

Trial Judge should apply the relevant Law to the relevant facts in the course of analysis

of the facts. Otherwise this would be a serious non-direction amounting to a

misdirection which would necessarily vitiate the verdict.

A trial judge would also fail in his duty if he does not refer to items of evidence

which are favourable to the accused however trivial it may seem.

It has also been noted that there have been many an instance where the High Court

Judge comments on the evidence of witnesses and/ or accused with reference to

proceedings of testimony of such persons given before the Magistrate‟s Court

at the Non Summary inquiry. This would constitute consideration of

―inadmissible evidence‖ and should be frowned upon. Similarly is a case where a

Magistrate refers to Police information book extracts in arriving at a final

decision..

Where the Accused opts to remain silent This is a right given to him under the

law, the adverse inferences that are presently being drawn – whilst recognizing the

right of the Accused to remain silent – i.e. the application of the Ellenborough

Principle and also the Lucas Principle (Utterances of falsehood) must be very

carefully set out without complicating the issue as otherwise the golden thread

which runs through the fabric of our Criminal Law relating to the presumption of

innocence and burden of proof would cease to exist.

A Court must also be cautious about the infirmity of relying upon “Voice

Identification‖ and also to the ―Turnbull Guidelines‖ relating to fleeting glance/

identification in trying circumstances.



85

Conclusion

Apart from matters stated hereinbefore, it would be incomplete if no mention is made of the

words of advice the writer always gives his Juniors, which would also assist Judicial

Officers to understand the outlook and thinking of the Members of the Bar who appear

before them.

In the Profession - learning never stops. It goes on, as long as we continue in the Profession.

This is the key to success. The day we feel we know everything or that we have learnt

enough, it is the beginning of the end. The ladder has to be ascended rung by rung. There are

no short cuts. Humility, Respect, Willingness to learn and taking correction in the proper

spirit are the qualities for the success. What we learn from books will help upto an extent.

Courtesy, Court Language, Decorum and Respect for the Bench, is of paramount

importance. If the Judges observe your hard work, dedication and respect, they will

reciprocate. Knowing your Judge, his moods, temperament and his ―pulse‖ is half the battle

won. Never be arrogant or have a superior attitude. It never pays. Be humble: Humility does

not cost anything.

The writer has attempted to cover matters which are not found in any text or statute. As we

should be dedicated by our conscious; keep our hands clean; never be short sighted. The

profession is very noble and gives one more than money- it gives job satisfaction, name and

fame has to be earned by honest dedicated, hard work. In the private Bar, the cake is big

enough for all to share. The writer speaks with experience and knowing its value, shares it

with all.

My thanks to my able and industrious legal research assistant attached to the Chamber, for

the assistance given me to prepare this note.

Minna Sanoon,

LL.B (Hons.) Cambridge; LL.B (Hons.) Oxford, LL.B (Hons.) Uni. Of London

LL.M (Hons.) Cambridge; LL.M (Hons.) Oxford, LL.M (Hons.) Uni. Of London

ACIS (UK) – Chartered Secretary

There is a higher court than courts of justice and that is the court of conscience. It

supersedes all other courts.

- Mahatma Gandhi

http://www.brainyquote.com/quotes/quotes/m/mahatmagan134775.html?src=t_justice

http://www.brainyquote.com/quotes/quotes/m/mahatmagan134775.html?src=t_justice

http://www.brainyquote.com/quotes/authors/m/mahatma_gandhi.html



86

Copyright Infringement on the Internet

And Internet Service Provider Liability:

Sri Lankan Law in the Context of English Law

Ruwan Fernando

LL.M. (Commercial Law), Cardiff, U.K.,

Post Attorney Diploma in Intellectual Property Law (S.L.)

High Court Judge & Director, Sri Lanka Judges‟ Institute,

Abstract

The exclusive right enjoyed by the owner of copyright to reproduce his protected

work in any material form, including any permanent or temporary storage of such

work in electronic form will have a direct impact on the lawful activities of an

internet service provider (ISP). It would be unjust, unreasonable and impracticable

to equate the position of an ISP with that of the traditional copyright infringer for the

reproduction of temporary copies which are transient or incidental when the

essential part of the technological process is to facilitate or enable the transmission

of the work in a network between third parties by an ISP. The making of temporary

copies exception was developed in the copyright law to safeguard the legitimate

interests of ISPs, exempting them from liability for copyright infringement on the

internet initiated by their subscribers and facilitated by their system subject however,

to certain conditions. Sri Lankan ISPs do not enjoy the same privilege against

infringing copyrighted material initiated by their users on their networks and

therefore any transmission of temporary copies of copyrighted material on their

networks without the consent of copyright authors may amount to unauthorised

reproduction of protected work that constitutes an infringement of copyright. The

liability may however, depend on a number of factors including the type of liability,

the nature of liability, the nature of work used by the ISP or the third parties,

possible defences available within the copyright law etc. It is high time for Sri Lanka

to carefully examine the issue of potential copyright liability of ISPs and strike a

balance between these two rights holders.



87

Introduction

The rapid increase of on-line activities in the digital world has posed complex legal issues

in the area of intellectual property mainly due to the fact that these activities involve works

protected by intellectual property laws. Among them, the liability of internet service

providers (ISPs) for copyright infringement that takes place on their networks is a major

legal issue to emerge from cyberspace.

Wrongful activities on the internet are by no means limited to the activities of the work

protected by the intellectual property and the activities of those who provide internet

facilities. The unrestricted access to the internet has created problems to persons with

internet-based defamation publications by third parties via the services provided by internet

service providers.

The content that is distributed through the internet includes software, text, music, films that

are part of the copyright law. The works protected by the copyright law are easily

reproduced and distributed by unauthorised persons by using the internet technology. This

affects the reproduction, distribution and communication rights of copyright owners since

―The infringing act may occur when certain files containing copyright material such as text,

pictures, or sounds are posted on a web from which they may be downloaded all over the

world.‖1

In the context of infringement of copyrighted material on the internet and the tortious

liability for the publication of defamatory material on the internet, the main areas of concern

are:

1. the liability of direct infringers of copyrighted material;

2. the liability of direct publishers of defamatory material;

3. the liability of secondary publishers for the infringement of copyrighted material by

using their facilities provided by them;

4. the liability for secondary publisher/s such as ISPs and website proprietors for

proving the conduit for such publication and dissemination of such material.

Purpose of the Article

The article will first identify the nature of an ISP and the deferent types of services rendered

by internet service providers. Secondly, it will consider the types of liability for the

infringement of copyrighted material on the internet. Thirdly, it will consider the liability of

1 Rosa Julia-Barcelo, ―Liability for On-line Intermediaries: A European Perspective‖ (1998) E.I.P.R. 453 at 455.



88

internet service providers for copyright infringement in relation to infringing items carried

on their networks in Sri Lanka in comparison with the law of the United Kingdom. It will

also consider the liability issue in the context of the implementation of the Electronic

Commerce Directive in the United Kingdom in providing limitations to the liability of

information society service providers. This article however, examines only the copyright

infringement that takes place on the networks of ISPs and it does not examine the peer-to-

peer copyright infringement and the liability of ISPs for the dissemination on defamatory

materials on their networks.

Definition of ISP

An internet service provider (ISP) is an entity that connects people to the internet and

provides other related services such as web site building and hosting.2 Some ISPs describe

themselves as online service providers (OSPs) however, the terms ―internet service

provider‖ and ―online service provider‖ are synonyms. 3The term ―internet service provider‘

is ―originally referred to a vendor who provided access for customers to the internet and the

World Wide Web, as well as e-mail services and other services. The term has been

significantly expanded over time and presently encompasses a wide array of different types

of service providers. An ISP may provide internet access services on a retail basis to

residential and/or business customers. An ISP may operate only a backbone network and

provide access services to that backbone network on a wholesale basis to other ISPs. Some

ISPs provide hosting services. Some ISPs provide server caching. Other ISPs do not provide

any of these services and only operate portals. An ISP may provide only a search engine or

some other e-commerce tool.‖4

A service provider under the Digital Millennium Copyright Act (DMCA)5of the United

States is defined in two different ways. The narrow definition is that an internet service

provider is ―an entity offering transmission, routing, or providing connections for digital

online communications, between or among points specified by a user, of material of the

user‘s choosing, without modification to the content of the material as sent or received.‖ 6

The broad definition refers to a provider of online services or network access or the operator

of facilities thereof‖7 The definition includes network services companies such as internet

service providers (ISPs), search engines and bulletin board system operators.8 The definition

2 Chaubey, An introduction to the Cyber Crime and Cyber Law, (2nd ed. 2012), 965 3 Ibid 4 Timothy D. Casey ISP Liability Survival Guide (2000 ed. Wiley Publications) p. 244 5 Digital Millennium Copyright Act 1998 6 Section 512 (a) 7 DMCA, sections 512 (k) (1) (A-B) 8 Chilling Effects, ―Frequently Asked Questions )and Answers) about DMCA Safe Harbor Provisions‖ at 4

http://www.chillingeffects.org/dmca512/faq.cgi



89

is specifically tailored to encompass the basic functions and services needed by users to

access the internet and enjoy its benefits.9

In the broader sense, the definition includes the owners and operators of corporate intranets,

university networks and interactive websites, in addition to more traditional service

providers.10

Sine it encompasses merely those persons that perform the task that make the

internet available to users, it does not encompass any and all persons using the internet.11

Thus a person doing business using the internet such as sell books, fresh fruits or provide

auction services would not qualify as a service provider by the mere fact that their business

uses the internet to solicit business, conclude transactions and deliver products or services

by means of telecommunications networks.12

The Electronic Commerce (EC Directive) Regulations 2002 of UK, which gave effect to the

European Electronic Commerce Directive, defines the ‗service provider‘ as ―any person

providing an information society service‖13The ‗information society service‘ referred to in

this definition is given the same definition as that in Article 1 (2) of the European Directive

as covering ―any service normally provided for remuneration, at a distance, by means of

electronic equipment for the processing (including digital compression) and storage of data,

and at the individual request of a recipient of a service ‖14

In the Sri Lankan Computer Crimes Act, No 24 of 2007 the term ‗service provider‘ is

defined in section 38 as (a) as a public or private entity which provides the ability for its

customers to communicate by means of a computer system; and (b) any other entity

processes or stores computer data or information on behalf of that entity or its customers.‖

In the Sri Lanka Electronic Transactions Act, No. 19 of 2006, the term ‗internet service

provider‘ is not specifically defined in the interpretation section. However, the term

‗certification service provider‘ is defined as a person providing certification services within

the meaning of the Act. 15

Further the term ‗network service provider is defined as a person,

who owns, possesses, operates, and manages or controls a public switched network or

provides telecommunication services.16

However, the term ‗intermediary‘ is defined as a

person acting as a service provider on behalf of another person in relation to the sending,

receiving, storing or processing of the electronic communications or the provision of other

services in relation to it.17

Hence, it appears that an ISP can be included within the definition

of the term ‗intermediary.

9 Batur Oktay and Grey Wrenn, ―A Look back at the Notice-Takedown Provisions of the U.S. Digital Millennium

Copyright Act One Year after Enctment‖ WIPO Workshop on Service Provider Liability, Geneva, December 8 & 10, 1999 http://www. Wipo.int/documents/en/meetings/1999/osp/doc/osp_lia2.doc

10 Ibid at 3 11 Ibid at 3 12 Ibid at 3 13 Reg. 2 (1), The Electronic Commerce ( EC Regulations 2002) , Reg. 2 (1) 14 Vide, Reg. 2 (1), The Electronic Commerce (EC Directive) Regulations 2002 15 Section 26, Electronic Transaction Act. 16 Ibid 17 Ibid

http://www/



90

Roles of ISPs

In the first place, it is necessary to understand why internet service providers are involved in

internet transactions. When a digital work is transmitted from one place to another or made

available for the public to have access, many parties are involved in this process. The

principal actors who are involved in transmitting of information from one place to another

are the sender and the recipient of that information. 18

However in the digital world, the

internet technology makes it impossible for individuals such as users to have access and

copy the protected works without internet-based intermediaries. ―Intermediaries, in the

internet context are organisations whose services are used to facilitate a transaction between

communicating parties. In our on-line software sale for example, the website host and the

download site host are both intermediaries without whom the transaction could not be

effected‖ 19

Intermediaries who are involved in facilitating infrastructure of the internet

consist of transmission services such as Telecommunications carriers, communication

services such as internet service providers and transaction facilitation services such as

domain name and certification authorities. 20

An internet service provider ―provides internet access and other services to its subscribers.

Subscribers will connect to the ISP through various means, including dial-up connection

across the public telecommunications network, and once connected will have access to such

internet resources and facilities as the ISP provides‖21

ISPs are therefore actively involved

in providing services that facilitate a transaction between the sender and the recipient,

without them no internet transaction can be effected in the digital world.

ISPs provide wide range of services through different functional roles. In order to

understand the liability, it is necessary to distinguish the different roles they play in the

transmission of digital work from one point to another. This distinction is crucial, as the

liability will depend in most instances on the different roles of internet service providers.

Internet service providers ― in their various roles as hosting, access providers and as well as

in their function as mere conduits play a key role as they provide the means to enable the

individuals to store, access and transmit the data packages containing unauthorized music

files. Hosting ISP‘s play a considerable role in providing web space in order to upload

Internet sites offering unauthorized music files: Web pages can typically be posted by means

of a dial-up connection to the internet ( via the local SP) …..The SP issues a username and

password at sign-up time, which are used to log on to the directory where the page, graphics

and sound files will be placed. In fact, simple websites can be created in minutes.‖22

The

18 Christopher Reed, Internet Law : Text and Materials(2000, Butterworths ) 22 19 Ibid, p. 25 20 Ibid, pp.25, 29, 33-34. 21 Christopher Reed, Internet Law: Text and Materials ( 2000, Butterworths ) 29 22 Dr. Nils Bortloff and Janet Henderson, ― Notice and take-down agreements in practice in Europe Views from

the internet service provider and the telecommunications and the recording Industry‖- WIPO workshop on

service provider liability- 1999 Geneva at p.4.

http://www.wipo.Int/documents/en/meetings/1999/osp/doc/osp_lia3.doc

http://www.wipo/



91

four major categories of network system offered by the world-wide internet service

providers are basically the following:

1. Conduit communications services – This refers to acting as a conduit between the

content provider and the user providing the transmission to the network or routing of

information such as e-mail.23

2. System caching services – This refers to automatic, intermediate and temporary

storage of material on its network by the ISP for the purpose of efficiently

transmitting information to other recipients.24

3. Hosting services – This refers to storage of information on their networks, provided

by a recipient of the services.25

4. Information location tools- This refers to services such as search engines, directories

or hyperlinks.26

The reason why an ISP risks the liability is ―by nature of their service, ISPs provide users of

the Internet with the means for potential infringement of all four of the basic copyrights-

right to reproductions, transformation, distribution and the right of public communication‖ 27

The nature of the services provided by the ISPs is such that they provide a potential infringer

with all the services and facilities such as transmission, routing of information and storing of

copyrighted material on their networks to be infringed by the unauthorised persons. And

also ―…most ISPs provide website space to their subscribers and run web server software

which allow other users to gain access to the site‘s resources‖ 28

Infringing acts such as copying, distribution and communication rights are infringed by the

users who make use of the services provided by the ISP. ―The transmission of a work over

the internet will normally result in several acts of reproduction. First, the work is copied

onto the server of the hosting service provider. Then, it will be temporarily reproduced, in

whole or in part and during transmission, digitised packets are repeatedly ‗stored‘ and

forwarded.‖29

The copyrighted work that is copied is easily distributed all over the world by using the

internet technology in preventing the copyright owner from exploiting his economic rights.

23 Claus Kohler and Kai Burmeister, ― Copyright liability on the Internet today in Europe (Germany,

France, Italy and the E.U)‖, (1999) E.I.P.R 485,498. 24 Claus Kohler and Kai Burmeister, ― Copyright Liability on the Internet Today in Europe (Germany, France,

Italy and the E.U.)‖, (1999) E.I.P.R. 485.499 25 Claus Kohler and Kai Burmeister, ― Copyright Liability on the Internet Today in Europe (Germany, France, Italy and the E.U.).‖ (1999) E.I.P.R. 485, 498 26 Rosa Julia- Barcelo, ―Liability for On-line Intermediaries: A European Perspective‖, (1998) E.I.P.R.

453, 454. 27 Miriam Yakobson, ―Copyright Liability of online service providers. After the Adoption of the

E.C. Electronic Commerce Directive. A Comparison to U.S.Law‖ (2002) 11 Ent.LR.144, 146. . 28 Christopher Reed, ―Internet Law: Text and Materials (2000, Butterworths) 25, 26. 29 Kamiel Koelman and Professor Bernt Hugenholtz, ― Online service provider liability for copyright

Infringement‖ (1999) WIPO workshop on service provider liability, Geneva.OSP/LIA/1 Rev, 9 R/

INTRANER/www/ENG/MEETINGS/1999/osp/doc/osp_lia.doc



92

Therefore, the dissemination of copyrighted works online by unauthorised persons by using

the services provided by the internet service providers affects the rights of copyright owners.

The internet service providers (ISPs) play various roles in the dissemination of digital works

on the internet from one place to another and therefore the material that is carried by the

ISPs can infringe the rights of the copyright owner. In this context, the pertinent question is

whether the ISPs should be held liable for copyright infringement initiated by a third party,

and if so, under what circumstances in the context of the English law and the law of Sri

Lanka?

Liability of ISPs for Copyright Infringement in Sri Lanka

There are laws in force in many countries to limit the liability of ISPs for the infringement of

copyright that takes place on their networks. In Sri Lanka, there is no specific provision in

the Intellectual Property Act, No. 36 of 2003 which would address the issue of ISP liability.

There is no special law in Sri Lanka to provide adequate protection for the legitimate

activities of ISPs in an attempt to minimise the vulnerability against copyright infringement

claims.

However, in 2006 Sri Lanka Parliament enacted the Electronic Transactions Act, No. 19 of

2006 and adopted very clear measures aimed at shielding Certification Service Providers

from both civil and criminal liability under section 19 of Electronic Transaction Act. This

Act was introduced to (i) recognise and facilitate the formation of contracts; (ii)the creation

and exchange of data messages, electronic documents, electronic records and other

communications in electronic form in Sri Lanka; (iii) provide for the appointment of a

certification authority and accreditation of certification service providers; and (v) provide for

matters connected therewith or incidental thereto.30

The main objectives of the Act are to (1)

facilitate domestic and international electronic commerce by eliminating legal barriers; (2)

encourage the use of reliable forms of electronic commerce; (3) facilitate filing of

documents with Government and to promote efficient delivery of Government services by

means of reliable forms of electronic communications; and (4) promote public confidence in

the authenticity, integrity and reliability of data messages and electronic communications.

The Act shields the Certification Service Providers who provide certificate services within

the meaning of the Act. Section 16 of the Act deals with the liability of certification service

providers and it reads as follows:

―16 (1) A Certification Service Provider shall not be subject to any civil or criminal

liability for any transaction under this Act in respect of third party information in

the form of data messages, electronic documents, electronic records or other

communications to which he merely provides access, if such liability is founded

30 Preamble to the Electronic Transactions Act, No. 19 of 2006



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on- (a). the making, publication, dissemination or distribution of such information

or any statement made in such information; or (b) the infringement of any rights

subsisting in or in relation to such information.

(2). Nothing in this section shall effect-

(a) any obligation founded on contract;

(b) the obligation of a Certification service Provider providing such services

under a licensing or other regulatory regime established under any

written law; or

(c) any obligation imposed under any written law or by a court to remove,

block or deny access to any information.‖

Section 26 of the Act defines a ‗Certification Service Provider.‘ A certification service

provider‖ means a person providing certification services within the meaning of this Act.‖

Section 26 of the Act defines the meaning of ‗certification services.‘ ―Certification services‖

means any service which is provided to the senders or recipients of information in electronic

form, or to those storing such information and is designed to facilitate the use of

cryptographic techniques for the purpose of ascertaining that the confidentiality, authenticity

and integrity of such information is secured.‖ It appears therefore that certificate service

provides provide services facilitating the use of cryptographic techniques for the purpose of

ascertaining that the confidentiality, authenticity and integrity of information sought by the

senders or recipients in electronic form or to those storing such information only.

On the other hand section 26 of the Act defines ‗network service providers‘ and

intermediary separately. A network service provider means a person who owns, possesses,

operates, manages or controls a public switched network or provides telecommunication

services. Moreover, the term ‗intermediary‘ is defined in the Act as ―a person acting as a

service provider on behalf of another person in relation to the sending, receiving, storing or

processing of the electronic communication or the provision of other services in relation to

it.‖

The question is whether an ISP that provides various categories of internet services would

come within these definitions. it does not seem that all types of intermediaries are given the

protection from any civil or criminal liability under the Electronic Transactions Act.

Accordingly, section 16 of the Electronic Transaction Act shields only such certification

service providers that provide certification services from civil and criminal liability for any

transaction under the said Act in respect of third party information in the electronic medium

to which he merely provides access services. However, internet service providers that

provide backbone services to an internet such as hosting, conduiting and caching to the users

for a monthly fee are left out of the operation of the said Act for the purpose of exemption

from liability.

WIPO Copyright Treaty and Right of Communication to the



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Public

It is important to refer to refer to WIPO Copyright Treaty31

which is a special agreement

within the meaning of Article 20 of the Berne Convention for the Protection of Literary and

Artistic Works. Under Article 8 of the WIPO Copyright Treaty, 32

authors have the exclusive

right of authorising any communication to the public of their works, by wire or wireless

means including the making available to the public in their works in such a way that

members of the public may access these works from a place and at a time individually

chosen by them. Thus, Article 8 specifically extends the right of copyright owners to works

made available on the internet.33

Section 9 (k) of the Sri Lankan IP Act grants owners of copyright exclusive right to

communicate their work to the public. The communication to the public under the Sri

Lankan Act means the transmission to the public by wire or without wire of the images or

sounds or both of a work, a performance or a sound recording including the making

available to the public of a work, performance or sound recording in such a way that

members of the public may access them from a place and at a time individually chosen by

them. 34

It can be argued that this definition may extend the right of copyright owners to

protected works made available on the internet as well.

In any event, an ISP may be entitled to argue that the mere provision of physical facilities

for enabling or making a communication does not in itself amount to communication within

the meaning of section 9 (k) of the IP Act. Any ISP whose country is party to the WIPO

Copyright Treaty and has implemented Article 8 relating to the right of communication to

the public in its national legislation may succeed in this argument in view of the agreement

statement concerning Article 8 of the Treaty. The agreed statement concerning Article 8 of

the WIPO Copyright Treaty states ―It is understood that the mere provision of physical

facilities for enabling or making a communication does not in itself amount to

communication within the meaning of this Treaty or the Berne Convention subject to Article

11bis (2) of Berne Convention.‖ However, Sri Lanka is not a party to the WIPO Copyright

Treaty and the definition of the ―communication to the public‘ in section 5 of the Sri Lankan

IP Act relates to the transmission to the public by wire or without wire relates to images or

sounds or both of a work, a performance or a sound recording. Whereas Article 8 of the

WIPO Treaty relates to any communication to the public of their work without limiting to

images or sounds or both of a work, a performance or a sound recording It is submitted

therefore the question whether the works of the internet service providers will also be fully

covered by the definition of section 5 is yet to be tested in Sri Lanka. Accordingly, the

31 WIPO Copyright Treaty, 1996 32 WIPO Copyright Treaty, 1996 33 Mirim Yakobson, ―Copyright Liability of Online Service Providers After the Adoption o the E.C. Electronic

Commerce Directive: A Comparision to U.S. Law‖ (2000) EN. T.R. 145 at. 146 34 Section 5



95

liability of ISPs for copyright infringement that takes place on their networks needs to be

decided by other provisions of the Intellectual Property Act no. 23 of 2003.

Why ISPs risk liability in Sri Lanka

However, unlike the right of communication of the work to the public, the right of

reproduction which has a significant relevance to the activities of ISPs will have a direct

impact on ISPs in Sri Lanka. Sri Lanka is neither a party to the WIPO Copyright Treaty nor

provided an exemption from liability of ISPs when making temporary copies which are

transient or incidental for the transmission of a work in a network between third parties by

an intermediary.

In Sri Lanka there are no specific legislative safeguards for ISPs to exempt them from

liability for copyright infringement for the transmission of infringing material by their

subscribers. The introduction of the reproduction right and the right of communication of the

work to the public in section 9 of the Act will make ISPs of Sri Lanka in an awkward

position. The Sri Lankan Act defines the word ―reproduction‖ in section 5 of the Act. The

definition of ‗reproduction‘ means

―the making of one or more copies of a work or sound recording in storage of any

material form, including any permanent or temporary a work or sound recording in

electronic form‖ would amount to infringement of copyright when carried out

without the consent of the author.‖

In view this definition, the reproduction right may fully apply in the digital environment, in

particular to the use of works in the digital form. It is argued therefore that the storage of a

protected work in digital form in an electronic medium constitutes a reproduction within the

meaning of section 5 of the Sri Lankan Act. When the right of reproduction is available to a

copyright holder, he will be able to prevent others from reproducing of their protected works

in digital form in an electronic medium without consent. It appears that this provision was

made to prevent internet users from gaining access to copyright material on restricted

websites without authority. Thus, Sri Lankan Act provides for the exclusive right to

authorise or prohibit the making of the one or more copies of a work or sound recording in

any material form, including any permanent or temporary storage of a work or sound

recording in electronic form.

Thus, under the intellectual property Act of Sri Lanka, making of one or more copies of a

work or sound recording in any material form, including any permanent or temporary

storage of a work or sound recording in electronic form would amount to infringement of

copyright when carried out without the consent of the owner of copyright. Thus, it is seen

that the Sri Lanka Act includes temporary copies of copyright as described earlier, within



96

the reproduction right and thus the activities of ISPs would be seriously affected by these

provisions since storage of temporary copies are an essential part of a technical process of

making or receiving a communication in the operation of the internet Thus, it facilitates and

enables a transmission of work in a network between third parties by an intermediary. The

transmission of temporary copies of copyrighted material on the networks of ISPs without

the consent of copyright authors thus may amount to unauthorised reproduction of protected

work that constitutes an infringement of copyright under the Intellectual Property Act of Sri

Lanka. In the absence of an exemption from liability for making temporary copies from

infringement, it can be argued that ISPs are required in Sri Lanka to obtain the consent of

copyright owners or pay for transient copies made on their networks during the course of the

transmission. Thus, they may risk liability for making transient copies on their networks

without obtaining prior permission of copyright owners

This position is completely different from the UK‘s position as regards the intermediate

internet carriers where section 28A of the Copyright, Designs and Patents Act states that

―copyright in a literary work, other than a computer program or database or in a dramatic,

musical or artistic work, the typographical arrangement of a published edition, a sound

recording or a film, is not infringed by the making of a temporary copy which is transient or

incidental, which is an integral and essential part of a technical process and the sole purpose

of which is to enable-

a. a transmission of the work in a network between third parties by an intermediately

or

b. a lawful use of the work;

and which has no independent economic significance.

Thus, under the Intellectual Property Act of Sri Lanka, making of one or more copies of a

work or sound recording in any material form, including any permanent or temporary

storage of a work or sound recording in electronic form would amount to infringement of

copyright when carried out without the consent of the author of copyright.

European Approach for ISP Liability

The European approach to the liability of ISPs and intellectual property rights is reflected in

E-Commerce Directive35

and the Copyright in Information Society Directive36

These

directives have ultimately become a part of the domestic law of each Member States of the

European Union which includes the United Kingdom. The Copyright in the Information

Society Directive was passed by the European Union to harmonise certain aspects of

35 The Electronic Commerce Directive, 2000/31/EC 36 Directive 2001/29/EC of the European Parliament and of the Council of 27 May 2001 on the harmonization of

certain aspects of Copyright and related rights in the information society.



97

copyright and related rights in the information society as they relate to the online

environment. The Directive on the harmonisation of certain aspects of copyright and related

rights in the information society grants a number of new rights to copyright holders. These

rights include:

1. the reproduction right. (Article 2)

2. the right of communication to the public (article 3)

3. the distribution right. (Article 4).

In order to implement the Copyright in the Information Society Directive, the United

Kingdom introduced the Copyright and Related Right Regulations 2003 which amended

section 20 of the Copyright, Designs and Patents Act 1988. New section 20 of the

Copyright, Designs and Patents Act reads as follows:

20 (1) The communication to the public of the work is an act restricted by the

copyright

in (a) a literary, dramatic, musical or artistic work; (b) a sound recording or

film; or

(c) a broadcast.

(2) References in this part to communication to the public by electronic

transmission

and in relation to a work include-

(a) the broadcasting of the work;

(b) inclusion of the work in an on-demand service or other interactive

service.

The aforesaid rights granted to copyright holders put ISPs in a difficult position as these

rights would affect the nature of their services such as providing services and facilities such

as transmission, routing of information and storing of material on their networks. Once these

exclusive rights are given to copyright holders, they would be able to prevent others from

reproducing, distributing or communicating of their works without their consent.

However, the Copyright Directive provides exemptions from the reproduction right where

the ISP is acting merely as a pass through provider, passing on or transmitting the

information provided by a third party.37

The Directive of the European Parliament and of the

Council on the harmonisation of certain aspects of copyright and related rights in the

information society in Article 5 (1) states that

37 Gavin Sutter, ―FE/HE Institutions and Liability for Third Party Provided Content‖, Legal Information Service at

p.15. http://www.jisclegal.ac.uk.publications.thirdpartycontent.htm



98

―Temporary acts of reproduction referred to in Article 2 which are transient or

incidental and an integral and essential part of a technological process and whose sole

purpose is to enable-

a. a transmission in a network between third parties by an intermediary, or

b. a lawful use;

of a work or other subject-matter to be made and which have no independent

economic significant, shall be exempted from the reproduction right provided for

in Article 2.‖

The Copyright, Designs and Patents Act of U.K. was amended to implement Article 5 (1) of

the Information Society Directive. The new section, 28 A, which comes within acts

permitted in relation to copyright works, exempts intermediate internet carriers including

ISPs from liability for copyright infringement. It reads as follows:

Section 28A- Making of temporary copies

―Copyright in a literary work, other than a computer program or database, or in a

dramatic, musical or artistic work, the typographical arrangement of a published

edition, a sound recording or a film, is not infringed by the making of a temporary

copy which is transient or incidental, which is an integral and essential part of a

technological process and the sole purpose of which is to enable-

a. a transmission of the work in a network between third parties

by an intermediary or

b. a lawful use of the work and which has no independent economic

significance.‖

Thus, the UK Act in terms of the Directive provides an exemption for copyright liability

where the reproduction is transient or incidental in the following situations.38

1. the transient copies are an integral and essential part of a technological process

whose sole purpose is to enable a transmission in a network between third

parties by an intermediary or a lawful use of a work or other subject-matter to

be made and

2. They have no independent economic significance.

Thus, intermediaries such as ISPs and telecommunications operators subject to the

conditions set out in Article 5 (1) are not required to seek the consent of copyright holders or

pay for transient copying made on their networks during the course of the transmission. This

38 Article 5 (1)



99

position is in keeping with the logic that imposing liability for the creation of transient

copies would make the internet unworkable39

and would make wide range of lawful services

provided by ISPs impossible to function.

Electronic Commerce Directive and Defences40

Unlike the Copyright Directive, the Electronic Commerce Directive however, provides for

the civil and criminal liabilities of online service providers when acting as intermediaries in

more detailed manner. In introducing this Directive, European Commission thought it fit to

ensure that OSPs would not be held in any legal field applicable to their services, where the

application of strict liability standard would damage the expansion of e-commerce within

EU.41

This Directive refers to service provider as ―any natural or legal person providing an

information society service‖42

Intermediaries are referred to as ‗information society services‘

within the meaning of Article 1(2) of Directive 98/34/EC as amended by Directive

98/48/EC43

Accordingly, an ‗information society service‘ is defined as ―any service

normally provided for remuneration at a distance by electronic means and at the individual

request of a recipient of services‖44

Articles 12 to 15 of the Directive deal with the liability of ISPs when acting as

intermediaries of third parties‘ transfer of information. They describe the conditions required

to exempt ISPs from monetary and criminal liability. The Directive recognises only three

categories of services eligible for exemption from liability. They include ―mere conduit‖

(including automatic, intermediate and transient storage), ―caching‖ and ―hosting.‖

EC Regulations, implementing the EU E-Commerce Directive as the UK law came into

force on 31.07.2002.45

Resembling the exemptions provided by the E-Commerce Directive,

these Regulations identify three activities which are exempted from liability under certain

conditions. The relevant parts of the Regulation apply to the ‗service providers‘ of the

‗information society service‘ dealing with the mere conduit, caching and hosting

39 Martin J Hayes, ―Internet Service Liability‖ Legal Information Service at p.11

http://www.jisclegal.ac.uk/ispliability/ispliability.htm 40 The Electronic Commerce Directive, 2000/31/EC 41 Miriam Yakobson, ―Copyright Liability of Online Service Providers after the Adoption of the

E.C. Electronic Commerce Directive: A Comparison to U.S. Law‖ (2000) E.N.T.R. 145, at 148 42 Article 2 (b) 43 Directive 98/34/EC as amended by Directive 98/48/EC of the European Parliament of the Council Laying

Down a Procedure for the Provision of the Information in the Field of Technical Standards and Regulations

and Rules on Information Society Services. 44 Article 2 (1) 45 The Electronic Commerce ( EC Directive) Regulations 2002



100

The E-Commerce Directive exempts ISPs from liability arising of the following activities of

internet service providers:

Mere conduit exception (related article in the UK‘s Regulations is Article 17)

Article 12 provides that when acting as mere conduit an ISP will not be liable for the

information transmitted on their networks provided the ISP

- does not initiate the transaction

- does not select the receiver of the transmission and

- does not select or modify the information in the transmission.

This exemption of liability extends to the automatic, intermediate, and transient storage of

the information, provided this takes place for the purpose of carrying out the transmission in

the communication network and it is not stored for any period longer than is reasonably

necessary for the transmission.

Caching exception (related article in UK‘s Regulations is Article 18)

Article 13 provides that when caching, an ISP will not be liable for the automatic and

temporary storage of the information that is carried out for the sole purpose of making more

efficient the information‘s onward transmission to other recipients of the service upon their

request, on condition that the ISP

- does not modify the information,

- complies with conditions on access to the information,

- complies with rules regarding the updating of the information specified in a

manner widely recognised and used by the industry,

- does not interfere with the lawful use of the technology, widely recognised and

used by industry, to obtain data on the use of the information and

- acts expeditiously to remove or to disable access to the information it has stored

upon obtaining actual knowledge of the fact that the initial source of the

transmission has been removed from the network, or access to it has been

disabled or that a court or an administrative authority has ordered such removal

or disablement.

Hosting exception (related article in UK‘s Regulations is Article 19)

Article 14 provides that an ISP will not be liable for the information stored at the request of

the recipient of a service, on the condition that an ISP on condition that the ISP

- does not have actual knowledge of illegal activity or information and as regards



101

claims for damages is not aware of facts or circumstances from which the illegal

activity or information is apparent or

- upon obtaining such knowledge or awareness acts expeditiously or to disable

access to the information.

- the recipient of the service was not acting under the authority or the control of

the ISP.

There is no time limit given under the Directive as to how soon the ISP should act upon

receiving notice of the offending material which is accessible through their service.46

It only

requires for the ISP upon obtaining such knowledge or awareness to act expeditiously or

disable access to the information.

These provisions will be used by ISPs as defences for copyright liability when sued both for

monetary and criminal liability. Since these liability exceptions do not affect the rights of

any party from applying for an injunction to prevent or stop infringement of copyright, the

effect of liability exceptions is limited to preventive injunctions by a court of law in a

Member States.47

This is in keeping with the objectives of the Directive that Member States

should ensure that court actions by way of interim measures such as injunctions against ISPs

are designed to terminate any infringement and to prevent any further impairment of the

interests involved.48

This position is in keeping with the logic that imposing liability on the

ISP where the ISP does not act as a content provider, but plays a passive role of secondary

transmitter of third party information, would seriously affect the legitimate activities of the

ISP. Therefore, court actions against ISPs should be limited to the prohibitory injunctions.

The Directive exempts ISPs from the obligation to monitor the information which they

transmit, store or actively seek facts or circumstances indicating illegal activity on their

networks49

The no obligation to monitor exemption has been included in the Directive for

the purpose of protecting the privacy of the customers of the ISP, who play a major role for

the development and expansion of E-Commerce in EU. Hence, the obligation to monitor is

limited to the conditions for eligibility stated in Article 15 of the Directive.

However, Member States are allowed to establish obligations to inform the competent

authorities of alleged illegal activities undertaken or information provided by the recipient of

their services or obligations to communicate to the competent authorities, at their request,

information enabling the identification of recipient of their service with whom they have

storage agreements.50

Although the ISP has no general obligation to monitor, under catching

46 Martin J Hayes, ―Internet Service Provider Liability‖ Legal Information Service at 13 http://www.jisclegal.ac.uk/ispliability/ispliability.htm 47 Regulation 20 of UK Regulations clearly provides that liability exceptions do not apply to injunctions. Hence,

the liability exceptions in UK law is subject to Regulation 20. 48 Article 18 49 Article 18 50 Article 18 (2)



102

and hosting exceptions, an ISP is obliged to remove or disable access to the infringing

material upon knowledge or awareness of such infringing material.

In determining whether an ISP has actual knowledge, for the purpose of Article 13 and 14, a

court has to take into account among other things any notice which includes the details of

the unlawful nature of the activity or information, details of the sender and the location of

the information. Under Article 13 and 14, an ISP is required to remove or disable access to

the infringing material upon obtaining actual knowledge of illegal activity or infringing

material. Therefore it is arguable that once a copyright owner notifies or a court or

administrative body orders such removal or disablement, an ISP obtains actual knowledge of

illegal activity or infringing material on its network. Hence, an ISP is obliged to act

expeditiously to remove or disable access to such material.

Thus, the Directive has provided Notice and Take down procedure as a condition to be met

before relying on the exemption from liability in relation to Articles 13 and 14. However,

the Electronic Commerce Directive does not have specific provisions for a notification

system for a Notice and Take down procedure and counter notice procedure. Thus,

considering the cross-border nature of internet access, a harmonised system for notification

would facilitate the eradication of copyright infringement and illegal activity on the internet. 51

As a result it is left to the legislator of Member States to establish procedures and provide

for applicable rules governing the removal and disabling of access to infringing material and

illegal activity on the network of an ISP.

Copyright Infringement and ISP Liability in Sri Lanka

The Intellectual Property Act makes out two types of copyright infringements, namely,

primary and secondary infringements. The liability of an internet service provider will

depend on the type of the copyright infringement and the type of the infringement will

depend on the kinds of restricted acts performed by an alleged infringer.

The Sri Lankan Intellectual Property Act does not provide for any similar exemption to the

right of reproduction in part 11 of the Act since it was not meant to provide for adequate

protection to ISPs to facilitate the development of electronic communication and introduce

norms to hold the infringing activity initiated by third parties and facilitated by systems of

ISPs. Thus, in the absence of special laws or adequate protective measures to determine the

copyright liability of ISPs, the traditional copyright liability criteria set out in the Intellectual

Property Act will have to be examined.

51 Miriam Yakobson, ―Copyright Liability of Online Service Providers After the Adoption of the E.C. Electronic

Commerce Directive: A Comparison to U.S. Law‖ (2000) E.N.T.R. 145 at 1151



103

Types of Liability

It is submitted that the Sri Lankan IP Act makes out two types of copyright infringements,

namely, primary and secondary. It is to be observed however, that the traditional principles

of copyright liability in the United States are threefold namely, direct infringement,

contributory infringement52

and vicarious infringement. Thus, the liability will depend on

the existence of the three types of infringement. These pre-legislation decisions in the

United States demonstrate the willingness of the US Courts to extend the traditional

principles of copyright liability to cases involving the internet with necessary modifications.

Unlike in civil law countries, the copyright liability in the United Kingdom does not divide

the forms of infringement into direct and indirect infringements. However, some elements of

direct and indirect infringements may be incorporated into primary or secondary

infringement in the English law.

Primary Infringement

a) Actual Infringement

Primary infringement is the activities of those involved in infringing the copyright owner‘s

exclusive rights.53

The primary infringement occurs when the direct infringer (the direct

actor) who, with or without a specific intent to infringe, is the primary party that violates one

of the copyright owner‘s exclusive statutory rights. 54

Primary infringement occurs in Sri

Lanka when a person does or authorises another person to do any of the restricted works set

out in section 9 of the IP Act without the licence of the copyright owner. The restricted acts

set out in section 9 are:

1. reproduction of the work

2. translation of the work

3. adaptation, arrangement or other transformation of the work

4. the public distribution of the original and each copy of the work by sale, rental,

export or otherwise.

5. rental of the original or a copy of an audio-visual work embodied in a sound

recording, a computer program, a data base or a musical work in the form of

notation, irrespective of the ownership of the original or copy concerned.

52 Thus, a person is liable for contributory infringement where he with knowledge or reason to know of the

infringing activity of another causes or materially contributes to the conduct of the direct infringement 53 Lionel Bently, Brad Sherman, Intellectual Property Law, 2nd ed. 2004) at 161 54 Gerald R. Ferrera, Stephen D. Lichtenstein, Marga E. K. Reder, Ray August & William T. Schieno, Cyber Law,

2001 West Thomson Learning at 74



104

6. importation of copies of the work, (even where the imported copies were made

with the authorisation of the owner of the copyright)

7. public display of the original or a copy of the work

8. public performance of the work.

9. broadcasting of the work.

10. other communication to the public of the work.

Thus, with the inclusion of the right of reproduction and the right of communication of the

work to the public, ISPs in Sri Lanka may be in an awkward position since these rights have

an effect on the legitimate activities of ISPs. An ISP may be liable for actual copyright

infringement if the ISP is actually or directly involved in violating any of the exclusive

rights given to copyright owners in section 9 of the Act. However, as discussed earlier,

professional ISPs are only acting as passive carriers of automatic transmission of works

posted by a third party on their networks. Thus, unless they are taking any affirmative steps

to cause the copies to be made, they cannot be held liable under section 9 of the Sri Lankan

Act.

The standard under the primary infringement is strict liability and the strict liability is a

general term used to describe forms of liability that do not depend upon proof of fault. 55

Thus, the factors such as mental element, recklessness or carelessness are not required to

constitute the liability. Consequently, innocent unintentional copying of protected work

may be sufficient to hold the infringer liable.

The primary infringement has two main elements, actual or authorising infringement. The

issue whether an ISP should be regarded as direct infringers has been addressed in several

US cases. Although the cases were decided under the US law, some of the principles set out

in these cases are valid under the English law and the Sri Lankan law as well. In the

landmark Netcom decision 56

Netcom, an ISP whose customer had posted infringing copies

of the works owned by the Church of Scientology on an internet newsgroup through a news

group server controlled by Netcom. The user who placed the files on the internet actually

utilised a local Bulletin Board (BBS) that provided internet access through Netcom. The

church requested Netcom and the BBS to deny access to the individual involved and remove

all documents containing Church materials from the servers. When Netcom and the BBS

refused, the Church filed action against Netcom and the BBS. Court found that neither

Netcom nor BBS had directly infringed the Church‘s copyright since they had not taken any

affirmative steps to cause the copies to be made. Court said ―the mere fact that Netcom‘s

system incidentally makes temporary copies of plaintiff‘s works does not mean Netcom has

caused the copyright.‖ 57

55 Michael A. Jones, Textbook on Torts, (3rd ed. 1991) at 231 56 Religious Technology Centre v. Netcom on-line Communication Services Inc (1995 N.D Cal) 907 F Supp. 1361 57 Ibid, p.1368



105

It appears therefore that an ISP could only be held liable for primary infringement under the

Sri Lankan law if the ISP causes an actual infringement by doing any of the restricted acts

set out in section 9 of the Act.

b) Authorising Infringement-

Section 9 of the Act providers that the owner of copyright of a work shall have the exclusive

right to carry out or to authorise the following acts in relation to the work….The primary

infringement under the Sri Lankan Act can also include authorising infringement under

section 9 since the copyright in a work is infringed by a person who without the licence of

the copyright owner either does or authorises another to do any of the acts restricted by the

copyright. Therefore ―Copyright may be infringed primarily where a person without the

permission of the copyright owner authorises another to do a restricted act.‖ 58

In this

context, copyright ‗authorisation‘ means ―to sanction, countenance or approve, or

alternatively, to grant or purport to grant to a third person the right to do an act complained

of‖59

The copyright authorisation in this context would mean the grant or purported grant

which may be express or implied of the right to do the act complained of.60

The issue of copyright infringement by authorisation was decided in the Australian Case of

Moorhouse and Angus and Robertson (Publishers) ltd v University of New South Wales 61

In this case, Justice Gibbs said ―A person who has under his control the means by which an

infringement of copyright may be committed- such as a photocopying machine and who

makes it available to other person knowing or having reason to suspect that it is likely to be

used for the purpose of committing an infringement and omitting to take reasonable steps to

limit its use to legitimate purposes, would authorise any infringement that resulted from the

use.‖ 62

In applying the same control test in Amstral Consumer Electronics Plc v British Phonograph

Industry Ltd, 63

the House of Lords held that supplying machines which would be likely to

be used unlawfully to copyright infringement was insufficient to make the manufacturer or

supplier a primary infringer of copyright nor could this be seen as authorising infringement

of copyright because the supplier had no control over the way the machines were used once

sold. In CBS Sons Ltd v. Amstrad Consumer Plc, 64

Lord Templeman said that in the

context of copyright, authorisation means ‗…the grant or purported grant which may be

express or implied, of the right to do the act complained of ` In this case it was held that

58 Bainbridge, Intellectual Property (5th ed 2002, Pearson/ Longman) 117 59 Falcon v. Famous Players Film Co.(1926) 2 K.B.474, at 491 60 CBS Sons Ltd v. Amstrad Consumer Electronics Plc. (1988) A.C 103. 61 Moor house and Angus and Robertson (Publishers) Ltd v University of New South Wales ( 1976) R.P.C. 151 62 Moor house and Angus and Robertson ( Publishers) Ltd v University of New South Wales (1976) R.P.C. 151 at

p.40 63 Amstral Consumer Electronics Plc v British Phonograph Industry Ltd ( 1986) F.S.R 159 64 CBS Songs Ltd v. Amstrad Consumer Electronics plc, (1988) AC 1013.



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Amstrad was not authorising infringement of copyright by the sale of its twin cassette tape

machines, since it was merely facilitating copying. Therefore, an ISP is not liable for

authorising infringement merely because of the fact that the ISP has provided physical

facilities for enabling the infringer to commit the infringement.

The same control test was applied in Netcom to hold an ISP for contributory infringement

where the ISP with knowledge or reason to know of the infringing activity of another

encouraged or facilitated the conduct of the direct infringer. If the Netcom test is applied in

Sri Lanka, then an ISP that knew or should have known about the presence of the

copyrighted material on its network, but failed to remove them, then, that failure can amount

to authorising infringement.

In Netcom, Court found that Netcom knew or should have known about the presence of the

copyrighted material on its server, but failed to remove them, that failure was held to be

equivalent to contributory infringement. The Court applied the control element and found

that the defendants who were ISPs did have the right, ability and the capacity to control their

users. It can thus be said that an ISP could be held to authorise infringement if it fails to

inform subscribers of copyright law and the importance of not infringing copyright and

additionally or alternatively, fails to monitor the material made available through its

service.65

In both Moor House and Amstral cases, the control test was used to determine the copyright

infringement by authorisation. In Netcom, the control test was used to decide the

contributory infringement under the US law. Nevertheless, ―contributory infringement can

be linked to authorising infringement, but it is not so extensive.‖ 66

For example,

contributory infringement in the USA requires actual knowledge, whereas authorising

infringement in the UK can be inferred where a person is indifferent as to whether infringing

material is involved.67

However, Sri Lankan courts may not apply the theory of contributory infringement under

the primary infringement because the degree of liability is different. It is to be noted that in

the case of the primary copyright infringement, the strict liability principle applies where the

mental element such as the degree of knowledge, recklessness or carelessness are not

required. However, in the case of contributory infringement, the degree of knowledge or

reason to know is required. Therefore, a Sri Lankan court may find it difficult to apply the

extensive version of contributory infringement theory within the primary infringement.

However, a Sir Lankan court may be able to apply the degree of control and the degree of

indifference exhibited by acts of commission or omission by ISPs to determine whether an

ISP is liable for authorising infringement initiated by their subscribers and carried on their

65 Bainbridge, Intellectual Property (5th ed. 2002,Pearson/Longman) at 241 66 Ibid 67 Ibid



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networks Thus, if it can be shown that the ISP had some measure of control over

unauthorized material on their networks and the ISP showed indifference and failed in their

duty to ascertain as to whether infringing material is involved on their networks, then it is

possible to argue that the ISP authorised and encouraged or facilitated infringing posting on

its networks by its users. In such a situation, an ISP may be liable for authorising

infringement.

If the Netcom test is applied in Sri Lanka, then an ISP that knew or should have known

about the presence of the copyrighted material on its network, but failed to remove them,

then, that failure can amount to authorising infringement. Thus, it has been said that

―indifference, exhibited by acts of commission or omission, may reach a degree from which

authorisation or permission may be inferred‖68

For example, the authorisation could be

established by applying the degree of exhibiting indifference by turning a blind eye, by

allowing to place the infringing material on the network or by using or attempting to use a

published material for commercial purposes.

The authorising infringement can also be extended to situations where an ISP has control

over the service and has a common design to infringe as a joint infringer. Joint infringers can

be described as two or more persons who act in concert pursuant to a common design to

infringe.69

Thus, an additional liability by authorising infringement can be inferred where an

ISP having control over its network acts in concert pursuant to a common design to infringe.

Unlike in the case of control over its network where an ISP can check and erase infringing

material once notified by a copyright owner, the test of common design is hard to apply to a

professional and efficient ISP. It is common that a professional ISP may not act with a direct

infringer in concert pursuant to a common design. Nevertheless, if an ISP encourages, even

tacitly, others to place infringing material on its network, it could be said that there is a

common design, being dissemination of infringing material.70

The element of common design was developed on the premise that an ISP in terms of

services provided enjoys a greater deal of control over unauthorised material on their

networks and therefore it may be in a better position to monitor and limit its use for

legitimate purposes. If they fail in their duty and authorise users to use its networks for

copyright infringement, will be liable for authorising infringement under section 9 of the Sri

Lankan Act.

A Sri Lankan court can also extend the theory of authorising infringement to situations

where an ISP has both the control over the network and a common design to infringe. These

two elements are the features of a joint liability of an ISP. The two elements of this liability

are the control test and the common design test.71

Therefore, if a content provider can

satisfy following two elements:

68 PRS v. Ciryl(1914) 1 K.B.1 at 9 (W.R.Cornish, Intellectual Property , (1999, 4th ed. Sweet & Maxwell) at 423 69 Bainbridge at 241 70 Ibid, at 242 71 Ibid



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1. that the ISP has control over its service or the network. In this situation, the ISP

will be able to check the infringing material transmitted through their network and

erase the infringing material quickly.

2. that there was a common design between the ISP and the infringer. In this situation,

the ISP and the infringer should act in concert pursuant to a common design to

infringe,

then, it can be shown that the ISP encouraged, even tacitly, others to place infringing

material on its network, there can be a common design for the dissemination of infringing

material on their network72

Therefore, if the Sri Lankan courts are prepared to recognise this broader theory of joint

infringement to determine the liability of ISPs in this situation, an additional liability under

the primary infringement may be formed. However, the applicability of the element of

common design to internet environment may be hard to prove since professional ISPs are

not expected to act in concert pursuant to a common design to infringe copyrights. A

professional ISP is only a passive carrier involved in automatic transferring of material

posted by third parties. So, in many instances they cannot be said to act in concert pursuant

to a common design to infringe copyright of its owners. Nevertheless, if an ISP has

encouraged or facilitated others to post infringing material on its network being one of

control and having a common design, then, an ISP as a joint infringer may be liable for

authorising infringement.

Unlike in the case of control over its network where an ISP can check and erase infringing

material once notified by a copyright owner, the test of common design is hard to apply to a

professional and efficient ISP. It is common that a professional ISP may not act with a direct

infringer in concert pursuant to a common design. Nevertheless, if an ISP encourages, even

tacitly, others to place infringing material on its network, it could be said that there is a

common design, being dissemination of infringing material.73

Even in the absence of the strict proof of the element of common design, if it can be shown

that the ISP had control over unauthorised material on its network and showed indifference

to ascertain whether infringing material is involved, but failed to erase them by using an

effective system, then the said ISP, thereby encouraged or facilitated the infringing material,

the ISP may be liable for authorising infringement under the Sri Lankan law. This does not

mean that in order to establish the liability by authorising infringement that both these tests

are required. It may be still possible to establish the authorising infringement in the absence

of the strict proof of the element of common design when it is shown that:

1. the direct infringer was some other person.

72 Ibid 73 Ibid



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2. the ISP had control over such infringing material.

3. the ISP failed in its duty of checking and erasing such infringing material

in exhibiting indifference by acts of commission or omission and

4. thereby encouraged or facilitated such infringement.

However, in both situations, the liability may be subject to fair use defence recognised in the

IP Act or receipt of copyright notices or failure to provide necessary documentation by the

copyright holders to show that there is a likely infringement.

Secondary Infringement

Secondary infringement is concerned with activities of commercial nature such as dealing

with infringing copies of a work or facilitating their production without the licence of the

copyright owner. Under this level of liability, one is liable for consciously causing or

assisting to cause infringement by other persons. 74

The secondary infringement is concerned

with people in a commercial context who either deal with infringing copies, facilitates such

copying or facilitates public performance 75

including providing premises or apparatus for

such infringement with knowledge or reason to believe that the activities in question are

wrongful.

The Copyright, Designs and Patents Act of the United Kingdom clearly identifies acts of

secondary infringement such as importing infringing copies, possessing or dealing with the

infringing copy, providing means for making infringing copies, permitting use of premises

for infringing performances, provision of apparatus for infringing. 76

In the Sri Lankan Act

acts of secondary infringement are not separately defined. The distinction between primary

infringement and secondary infringement is that the former involves making the infringing

copy or making the infringing performances, while the latter involves dealing with those

copies, providing the premises or apparatus for the performances or making an article for the

purpose of making infringing copies. 77

When a secondary infringement is committed,

however, there will almost certainly have been a corresponding infringement of one or more

of the acts restricted by copyright78

(e.g. acts restricted by section 9 of the Act).

For a secondary infringement, the person responsible must have knowledge or reason to

believe that the copies are infringing.79

The liability depends on the defendant knowing or

having reason to believe that the infringing activities are wrongful. Under the Act, there

74 J.A.L.Sterling, World Copyright Law (1998), ( Miriam Yakobson, ―Copyright Liability of Online Service

Providers After the Adoption of the E.C. Electronic Commerce Directive: A Comparison To U.S. Law‖ (2000) ENT.L.R. 145 at 146)

75 Lionel Bently & Brad Sherman, above note 53, at 186 76 Sections 22- 26 77 Bainbridge, p. 137-138 78 Ibid 79 Bainbridge, p. 138



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must have actual knowledge or constructive knowledge on the part of the infringer to

constitute infringement.

Although there is no specific reference to acts of secondary infringement in the Act, section

23 refers to unlawful activities that amount to secondary infringement of the rights of the

owner of copyright. A copyright in a work may be secondarily infringed by a person who,

without the licence of the copyright owner under the following circumstances:

1. the manufacture or importation for sale or rental of any device or means

specifically designed or adapted to circumvent any device or means intended to

prevent or restrict reproduction of a work or to impair the quality of copies made

(the latter device or means hereinafter referred to as ‗copy protection or copy

management device or means)

2. the manufacture or importation for sale or rental of any device or means that is

susceptible to enable or assist the reception of an encrypted program, which is

broadcast or otherwise communicated to the public, including reception by satellite,

by those who are not entitled to receive the program.

The infringing activities of copyright are also recognised under section 23 (3) of the Act.

Thus, an owner of copyright in a work will have a remedy for infringement of copyright

where

(a) authorised copies of the work have been made and offered for sale or rental in an

electronic form combined with a copy protection or copy management device or

means and a device or means specifically designated or adapted to circumvent the

said device or means, made or imported for sale or rental;

(b) the work is authorised for inclusion in an encrypted program, broadcast or

otherwise communicated to the public, including by satellite and a device or means

enabling or assisting the reception of the program by those who are not entitled to

receive the program made or imported for sale or rental.

Thus, the activities mentioned in section 23 (1) refer to the manufacture or importation for

sale or rental of designed to circumvent the form of copy protection and 23 (2) refers to

apparatus for infringing of copyright referred in the section. Thus, the activities mentioned

in section 23(1) refer to the manufacture or importation for sale or rental of apparatus for

infringing of copyright referred to in the section.

However, it can be seen that ISPs are not involved in the activities mentioned in section 23

(1) (a). First, the legitimate activities of an ISP are not involved in manufacturing or

importing for sale or rental of any device or means specifically designed or adapted to

circumvent any device or means. Secondly, the legitimate activities of an ISP are not



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intended to prevent or restrict reproduction of a work or to impair the quality of copies

made.

Similarly, it can also be seen that ISPs are not involved in activities mentioned in section 23

(1) (ii) The legitimate activities of an ISP is not connected with the manufacture or

importation for sale or rental of any device or means that is susceptible to enable or assist

the reception of an encrypted program that can be broadcast or otherwise communicated to

the public. An ISP acts merely as an intermediary in transmitting information directed by its

subscribers. Thus, it is not possible to hold an ISP for secondary infringement of copyright

under section 23 (1) (i) or (ii) of the Sri Lankan Act.

Thus, these sections have been specifically designed to overcome the challenges posed by

the modern copying technology by way of unauthorised copying of work that are copy

protection. Although section 23 of the Sri Lanka Act has introduced some anti-

circumvention provisions that are designed to implement the WIPO Copyright and

Phonograms Treaty, it does not deal with the extent of liability of intermediate service

carriers for copyright infringement in relation infringing items carried on their networks.

These provisions are not intended to deal with the activities of ISPs that act merely as

intermediaries in transmitting information directed by their subscribers.

Defences

In determining whether a service provider has actual for the purpose of this infringement, a

court shall take into account all matters which appear to it in the particular circumstances to

be relevant including any fair use defence in section 12 of the Act. In the absence of special

legal provisions to exempt an ISP for copyright infringement, the consideration of the

following matters are relevant: (a) whether a service provider has received a notice through

a means of contact made available to it by the content provider with regard to the nature and

the extent of infringement in question; (b) the reasonable effective measures taken by an ISP

having received such notice to prevent their services being used to infringe copyright on

their networks; (c) contractual agreement if any with the subscribers; and (d) fair use

defence in section 12 of the Act; (e) in the case of secondary infringement, whether the ISP

had knowledge or reason to believe that the copies are infringing. The burden shall be on the

service provider to demonstrate that he has fulfilled his duties and to demonstrate that he has

complied at all material times and in all material respects with the voluntary code of practice

being followed by the internet community. An ISP can also demonstrate that the

infringement complained of took place despite such compliance, and then the service

provider may be deemed to have fulfilled his duty.



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Conclusion

It is submitted that Sri Lanka should afford limited protection to ISPs from liability for

providing access to third party copyrighted material on their networks. The limitation of

their liability is required to protect the legitimate interests of ISPs and copyright owners and

to ensure a fair balance between the copyright holders, ISPs and others involved in the

internet technology in a technologically developing country like Sri Lanka.

The first thing is to bring an amendment to section 5 read with section 9 (1) (a) of the

Intellectual Property Act of Sri Lanka and exempt ISPs from copyright infringement within

the reproduction right for making temporary copies of copyrighted material where such

copies are an essential part of a technical process of making or receiving a communication in

the operation of the internet. This would exempt intermediate internet carriers such as ISPs

from liability for copyright infringement provided however, this exemption would apply

only if such ISPs provide mere access to such materials acting in a passive role. This would

shield ISPs from copyright liability for transmitting copyrighted work for their legitimate

work between third parties and an intermediary which is an integral and essential part of a

technological process. However, Sri Lanka need not introduce a blanket exemption to ISPs

in relation to all temporary copies from liability. Sri Lanka can identify the range of

temporary copies that are made as part of the technical process of making or receiving a

transmission or communication done by an ISP.

These exemptions should be limited to acts of temporary reproductions that form an integral

and essential part of a technical process and take place in a network as part of the lawful

work of a transmission process. This means that the ISP should not have received direct

financial benefits from the infringing activity or such infringing activity should not have

enhanced the value of the services to subscribers or attracted new subscribers. This shows

that even if an ISP has not received a direct financial benefit from the transmission of the

infringing activity, if the infringing activity has contributed to enhance the overall

commercial activity of the ISP and benefits for the ISP, the exception should have been

made not applicable.

Secondly, Sri Lanka can provide defences to copyright liability in the IP Act itself where

temporary reproductions made in the course of acting as mere conduit, caching or hosting of

third party material online. In this situation, Sri Lanka can also consider whether to limit the

exceptions to non-infringing communications such as browsing or viewing copyright

material online and in certain types of caching. However, these exceptions can be subjected

to certain conditions as recognised in the present UK law.

In order to protect the rights of copyright owners to retain control over the communication

and reproduction of their works on the internet and to protect the operation of an ISP, it is

necessary to introduce the notice and take down procedure which obliges an ISP to remove



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or disable access to the infringing material upon knowledge or awareness of such infringing

material. On the other hand if such ISPs play an active part in the publication, reproduction,

dissemination of such material or the infringement of rights which subsisted on such

materials, the exemption would be lost. In the process of protecting the interests of ISPs, the

legitimate interests of copyright holders should also be safeguarded. Sri Lanka should

attempt to strike a balance between the rights of copyright owners and the internet service

providers.

―Justice can sleep for years and awaken when it is least expected. A miracle is nothing more

than dormant justice from another time arriving to compensate those it has cruelly

abandoned. Whoever knows this is willing to suffer, for he knows that nothing is in vain.‖

― Mark Helprin, Winter's Tale

http://www.goodreads.com/author/show/8146.Mark_Helprin




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Buddhist Perception

On Social Justice and Healing Justice

Maniccavasagar Ganesharajah LLM (USA), LLM (Colombo),

PGD (Conflict Resolution), PGD (International Law),

PGD (International trade law), DIP. (Management), DIP(Adv. English).

District Judge, Mullaitivu

Buddhism has a reputation in the modern world as a religion encouraging peace and social

justice. Broadly speaking, the term ‗social justice‘ implies fairness and mutual obligation in

society: That we are responsible for one another and that we should ensure all have equal

chances to live free and succeed in life. Since an individual can experience freedom only in

a moral society, the rights and duties of such individual may be held as inter-connected.

The concept of social justice, which was central to the political thought generating and

sustaining the French Revolution in the late 18th Century, is over two centuries old.

Interestingly, over 2,500 years ago, Gautama Buddha raised the issue of liberty, equality and

fraternity against the tyrannical and hierarchical social system in India at the time.

The Buddha understood the deeper significance of human existence. He said that no super

human or divine entity, other than one‘s own deeds, would change one‘s destiny. His

practical philosophy is concerned with the ways that would help in the elimination of human

suffering. He presented His doctrine which explained clearly the human suffering, and also

the way to its elimination.

If we investigate the Buddha‘s teaching on the Sublime States: Metta, Karuna, Mudita and

Upekkha (Loving-kindness, Compassion, Sympathetic Joy and Equanimity) towards living

beings, then we will realize that we ourselves are responsible for our own well-being and

that of society as well.1

1 http://www.sundayobserver.lk/2013/11/17/imp01.asp



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Right livelihood

The modern social scientists proclaim that for a healthy society, two components - freedom

and morality - are essential. According to the Buddha, morality is not only the foundation of

our social path, but the axis upon which the whole of our spiritual development revolves.

Buddhism encourages people to develop their minds and purify them through the practice of

morality, concentration and wisdom.

In the Buddha‘s moral teachings, Right Livelihood (Samma Ajiva) figures prominently. In

His first sermon after attaining Enlightenment, the Buddha explained that the way to peace,

wisdom and finally, Nirvana is the Noble Eightfold Path.

The fifth ‗fold‘ of the path is Right Livelihood, which is the way to earn a living that does

no harm to others. In the Vanijja Sutta, the Buddha said, ―A lay follower should not engage

in five types of business, business in weapons, business in slaves, business in meat, business

in intoxicants and business in poison.‖

The Buddhist concept of ‗livelihood‘, therefore, implies not only a pure and transparent

means of earning one‘s living, but it is also to be morally responsible towards the society. If

we do not take any responsibility for society, then our minds will be overpowered by self-

interest and we will become selfish and uncaring.

Eventually, this would result in us not behaving in a moral or just and righteous way in our

day-to-day dealings with other people. The precept about Right Livelihood was designed to

bring true happiness to the individual and society and to promote unity and proper relations

among people.

Happiness

We find several modes of ‗true‘ happiness in Buddhist literature. In one mode, the Buddha

speaks about four types of happiness. A person who lives in the society without retiring into

a life of seclusion may enjoy four kinds of happiness:

* The happiness of earning (Atthi-sukha) wealth by just and righteous means

* The happiness of using (Bhoga-sukha) wealth liberally on family, friends and on

meritorious deeds

* The happiness of being without debt (Anana-sukha)

* The happiness of blamelessness (Anavajja-sukha), to live a faultless and pure life without

committing evil in thought, word and deed.



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According to this mode, true happiness is to enjoy material welfare, monetary or economic

security through fair and righteous means.

Happiness can also be enjoyed by using the wealth liberally for one‘s self, for one‘s family,

friends, and relatives and by wholesome deeds. Happiness likewise can be enjoyed from

becoming debt-free. Then, there‘s happiness that is enjoyed through blamelessness resulting

from the avoidance of unwholesome deeds.

As evident from the discourse, true happiness of ownership, wealth and being debt-free refer

to economic security and stability whereas happiness of blamelessness refers to a higher

level of happiness which is spiritual or psychological.

Potential

Buddhists view all human beings as equal; therefore Buddhism is committed to the principle

of human equality. The Buddha criticized the caste system which divided the society in to

upper and lower castes, thereby depriving the lower castes of certain rights. Repudiating the

superiority by birth, He said: ―No Brahman is such by birth, no outcaste is such by birth, an

outcaste is such by his deeds, and a Brahman is such by his deeds.‖

The Buddha also condemned exploitation of labour in every form. He asserted five ways in

which an employer should serve his employees:

* Work should be assigned in proportion to the employees‘ health

* Proper food and wages be given to them

* Proper care should be taken in their sickness

* Specially, tasty luxuries should be shared with them and

* Holidays should be given to them at intervals.

The Buddha was so compassionate to the working class that He stressed that they be

treated with as much consideration as a member of one‘s own family.

The Buddha saw the spiritual potential of men and women and founded the Order of

Bhikkhunis, one of the earliest organizations for women. The Sasana consisted of the

Bhikkhus, Bhikkhunis, laymen and laywomen so that the women were not left out of any

sphere of religious activity.

The highest spiritual states were within the reach of both men and women and the latter

needed no masculine assistance or priestly intermediary to achieve them. We could

therefore, conclude that Buddhism accorded to women a position approximating to equality.



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Although there are no vows or rituals involved in the event of a marriage, the Buddha has

laid down in the Sigalovada Sutta the duties of a husband and wife: ―In five ways should a

wife be ministered to by her husband; by respect, by courtesy, by faithfulness, by handing

over authority to her and by providing her with ornaments.

The wife‘s duties are well-performed by hospitality to the kin of both, by faithfulness, by

watching over the goods he brings and by skill and industry in discharging all business.‖

The significant point here is that the Buddha‘s injunctions are bilateral; the marital

relationship is a reciprocal one with mutual rights and obligations.

Justice and punishment

The history of punishment is in some respects like the history of war; it seems to accompany

the human condition almost universally, to enjoy periods of glorification, to be commonly

regarded as justified in many instances, and yet to run counter to our ultimate vision of what

human society should be."2

Why do we punish? It seems a silly question, but only until we try to answer it. To punish is

to harm, and harming must be justified. Three types of justification are usually offered: the

harm of punishment is outweighed by some greater good (e.g., it deters others); punishment

does not really harm offenders (because it reforms them); and harming offenders is good in

itself (because retribution "annuls the crime"). However, each of these reasons becomes

problematical when we examine it.

The first argument is a utilitarian one, but it seems immoral to harm someone because we

want to influence others' behavior; such a principle could also be used to justify

scapegoating innocents. This is not just an abstract point, for there is the uncomfortable

possibility that offenders today have become scapegoats for our social problems. And if

punishment warns other would-be offenders, why does the United States, which punishes a

larger percentage of its population than any other Western country, continue to have the

highest crime rate?3

The second argument, that punishment reforms rather than harms the offender, obviously is

not true now. The Quakers may have intended the penitentiary to be a place of penitence, yet

there is little doubt that today incarceration makes most offenders worse. A RAND study

found that recidivism is actually higher for offenders sent to prison than for similar

offenders put on probation. That should not surprise us, for the predatory societies found in

most prisons make them more like hell than places to repent and reform. Prison settings

2 Deirdre Golash, "Punishment", 11-12. This provocative paper presents the three main justifications for

punishment, argues that each is flawed, and concludes that we should abolish our institutions of punishment.

3 http://www.zen-occidental.net/articles1/loy2.html



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dehumanize, divert offenders' attention from victims, and reinforce their low self-esteem. As

often happens, an institution which does not fulfill its original purpose continues to exist for

other reasons - in this case because, to tell the truth, we have not known what else to do with

most offenders.

The third argument, that harming offenders somehow annuls the crime, incorporates several

types of justifications. The most common is the desire for vengeance, which is

understandable but morally dubious and socially destructive. Another version sees

punishment as God's retribution; the Buddhist equivalent understands punishment more

impersonally, as an effect of one's karma. Neither is a good argument for human

punishment: neither God nor an objective moral law needs our help, especially since it is

inevitable that humans will occasionally make mistakes (e.g., execute innocents).

The important point is that all versions of this third justification build upon the intuitive

belief that something must be done to "make right" the harm that offenses cause to victims

and the social fabric. What motivates the restorative justice movement is the increasing

recognition that our present judicial system is not doing this well enough. The problem, we

are beginning to realize, is a deep one: we sense that there may be something wrong with

our atomistic understanding of the social contract and its presumptions about "the good life",

but we are not sure which way to look for an alternative paradigm - which is why it is

essential to get perspectives on this paradigm that can only be provided by the worldviews

and values of other cultures.

Approach of Buddhism

The Buddhist approach to punishment, like any other approach, cannot really be separated

from its understanding of human psychology and its vision of human possibility. This

suggests that criminal justice is not solely a secular issue, for questions of fairness and

justice cannot be completely separated from the religious perspectives they historically

derive from: for the vast majority of humankind, crime, punishment and reform are still

inextricably bound up with religious views about sin, judgment and forgiveness. Justice is

one of those ultimate issues that bridge whatever distinction we try to make between sacred

and secular, and our criminal justice system will always be subordinate to our larger vision

of how people should relate to each other. Then is penal failure a barometer of our social

failure in this larger respect - of our inadequate vision of what personal and social

possibilities there are? This would explain our discomforting suspicion that criminals have

become scapegoats, readily exploited by ambitious politicians (a fourth justification for

punishment, unfortunately).

It is difficult to generalize about crime, because there are different types, committed by

different types of people, which require different responses. The same is true for Buddhism:

there is no such thing as the Buddhist tradition, for Buddhism has been extraordinarily



119

adaptable in its spread to different places and cultures. Thailand, Tibet, China and Japan and

Sri Lanka have had very different political and judicial systems, although some similar

threads have been used in weaving their various patterns: especially the beliefs that all of us,

offenders and victims alike, have the same Buddha-nature, which is not to be confused with

our usual sense of self, an ever-changing collection of wholesome and unwholesome mental

tendencies; that we are usually dominated by our greed, ill-will and delusion, but it is

possible to change and outgrow them; and therefore the only reason to punish is education

for reformation.4

The Angulimala Sutta

Angulimala5 was a merciless bandit, who murdered many people and wore their fingers as a

garland (hence his name, literally "finger-garland"). Although warned about him, the

Blessed One (Sakyamuni Buddha) walks silently into his area. When Angulimala tries to

catch him, however, the Buddha performs a supernatural feat: Angulimala, walking as fast

as he can, cannot catch up with him, even though the Buddha is walking at his normal pace.

Astonished, Angulimala calls out "Stop, recluse!"

Still walking, the Buddha answers: "I have stopped, Angulimala; you stop too." In response

to Angulimala's puzzlement, he explains: "I have stopped forever, abstaining from violence

towards living beings; but you show no such restraint." This impresses Angulimala so much

that he renounces evil forever and asks to join the sangha; and the Buddha accepts him as a

bhikkhu.

Meanwhile, people had gathered at the gates of King Pasenadi's palace, demanding that

Angulimala be stopped. King Pasadeni goes forth with five hundred men to capture him.

When he meets the Buddha and explains his quest, the Buddha responds: if you were to see

that he is now a good bhikkhu, who abstains from killing, etc., how would you treat him?

The king replies that he would pay homage to him as a good bhikkhu, and is surprised when

the Buddha points out Angulimala seated nearby. The King marvels that the Buddha was

able to tame the untamed and bring peace to the un-peaceful. "Venerable sir, we ourselves

could not tame him with force or weapons, yet the Blessed One has tamed him without force

or weapons." Then he departs.

Soon after, the venerable Angulimala realizes the supreme goal of the holy life and attains

nirvana, Later, however, during an alms round, he is beaten by townspeople, but the Buddha

tells him to bear it, for it is a result of his past karma. The sutta concludes with some verses

4 There are many excellent works in English that provide an introduction of Buddhist teachings. For early

Buddhism, see Rahula 1959; for Mahayana Buddhism, see Williams 1989.

5 Majjhima Nikaya ii, 98ff, in The Middle Length Discourses of the Buddha, 710-717.



120

by Angulimala, for example: "Who checks the evil deeds he did/ By doing wholesome deeds

instead,/ He illuminates the world/ Like the moon freed from a cloud."

The point of this sutta is not difficult to see: we need only contrast Angulimala's fate with

what our retributive justice system would do to him. The importance of this story within the

Buddhist tradition highlights the only reason Buddhism accepts for punishing an offender: to

help re-form his or her character. Then there is no reason to punish someone who has

already reformed himself.

The Lion's Roar Sutta

The Cakkavatti-sihanada Sutta6 addresses the relationship between criminal justice and

social justice, especially the connection between poverty and violence. The Buddha often

summarized his teachings into four noble truths: life is duhkha (unsatisfaction); the cause of

duhkha; the end of duhkha; and the way to end duhkha. According to this Buddhist

approach, the way to control crime naturally follows from correctly understanding the

causes of crime. In this sutta the Buddha tells the story of a monarch in the distant past who

initially venerated and relied upon the dhamma, doing as his sage advised: "Let no crime

prevail in your kingdom, and to those who are in need, give property." Later, however, he

began to rule according to his own ideas and did not give property to the needy, with the

result that poverty became rife. Due to poverty one man took what was not given and was

arrested; when the king asked him why, the man said he had nothing to live on. So the king

gave him some property, saying that it would be enough to carry on a business and support

his family.

Exactly the same thing happened to another man; and when other people heard about this

they too decided to steal so they would be treated the same way. Then the king realized that

if he continued to give property to such men, theft would continue to increase. So he decided

to get tough on the next thief: "I had better make an end of him, finish him off once and for

all, and cut his head off." And he did.

At this point in the story, one might expect a moralistic parable about the importance of

deterring crime, but it turns in exactly the opposite direction:

"Hearing about this, people thought: 'Now let us get sharp swords made for us, and then we

can take from anybody what is not given, we will make an end of them, finish them off once

and for all and cut off their heads.' So, having procured some sharp swords, they launched

murderous assaults on villages, towns and cities, and went in for highway-robbery, killing

their victims by cutting off their heads.

6 Digha Nikaya iii, 65 ff, in The Long Discourses of the Buddha, 395-405.



121

"Thus, from the not giving of property to the needy, poverty became rife, from the growth of

poverty, the taking of what was not given increased, from the increase of theft, the use of

weapons increased, from the increased use of weapons, the taking of life increased . . ."

Despite some fanciful elements, this myth has important implications for our understanding

of crime and punishment. The first point is that poverty is presented as the root cause of

immoral behavior such as theft, violence, falsehood, etc. Unlike what we might expect from

a supposedly world-denying religion, the Buddhist solution has nothing to do with accepting

our poverty karma. The problem begins when the king does not give property to the needy -

that is, when the state neglects its responsibility to maintain distributive justice. According

to this influential sutta, crime, violence and immorality cannot be separated from broader

questions about the justice or injustice of the social order. The solution is not to "crack

down" harshly with severe punishments but to provide for people's basic needs. "The aim

would be, not to create a society in which people in general were afraid to break the law, but

one in which they could live sufficiently rewarding lives without doing so" (Wright 7).

That brings us to the second point of the Lion's Roar Sutta, its understanding of violence.

Instead of solving the problem, the king's violent attempt at deterrence sets off an explosion

of violence that leads to social collapse. If punishment is sometimes a mirror-image of the

crime, in this case the crimes are a mirror-image of the punishment.The emphasis on

nonviolence within so much of the Buddhist tradition is not because of some otherworldly

preoccupations; it is based upon the psychological insight that violence breeds violence.

This is a clear example, if anything is, of the maxim that our means cannot be divorced from

our ends. If there is no way to peace, peace itself must be the way. Since the state is not

exempt from this truth, we must find some way to incorporate it into our judicial systems.

The Vinaya

The Vinaya Pitaka7 is, in effect, a canonical compendium of the rules that Bhikkhus and

Bhikkhunis are expected to follow. The vinaya is based upon sila morality, which, although

only one part of the three-part path (the others are samadhi-concentration and pragna-

wisdom), provides the ethical foundation essential for all Buddhists. The five basic sila

precepts are to abstain from killing, stealing, improper sexual behaviour, lying, and

intoxicants. These precepts help us eradicate the three roots of evil: "As lust, malice and

delusion are the basis of all undesirable volitional activity done by means of thoughts, word

and body, the disciplinary code or Buddhist Laws are regarded as a means established for

the rise of detached actions which finally result in pure expressions of body, speech and

thought" (Ratnapala 42).

7 This section draws heavily on Ratnapala's Crime and Punishment in the Buddhist Tradition



122

Although now rigidly codified, the vinaya approach is quite practical. Almost all rules

originate from actual events (what we would call case law) rather than from hypothetical

possibilities of wrong-doing. "The spirit of the law suggests that the laws act more or less as

sign-posts or 'danger zones' indicating that one should be careful here, keeping in mind the

example or examples of individuals who fell into trouble by this or that stratagem"

(Ratnapala 42). Since not derived from God or any other absolute authority, these rules are

always open to revision, except for the four parajikas (sexual intercourse, stealing, killing a

human being, and lying about one's spiritual attainment) which constitute automatic self-

expulsion. Following the rules well is not in itself the goal; the reason for rules is that they

promote personal and spiritual development.

The vinaya approach is very practical in another way too: in its realistic attitude towards

human weakness. It is the nature of unenlightened human beings to be afflicted by greed, ill-

will and delusion; that is, all of us are somewhat mad. As long as human beings are

unenlightened, then, there will be crime. The extent of crime can be reduced by improving

social and economic conditions, but no human society will ever be able to eradicate crime

completely. This is consistent with the Buddhist attitude towards self-perfection: we

improve only gradually, step by step, which implies that offences should be evaluated with

tolerance and compassion.

If we are all somewhat insane, the insanity defense is always somewhat applicable, for there

can be no presumption of free will or simple self-determination. Freedom is not a matter of

liberating individual self-will (often motivated by greed, etc.) but overcoming such

willfulness; not gained by removing external restraints, but by self-control and spiritual

awakening. This denies the distinction we are usually quick to make between an offender

and the rest of us. The rehabilitative model of secular therapy denies the offender's dignity

and responsibility, as Conrad Brunk points out, but Buddhism avoids this problem by

emphasizing the continuity between offenders and us: the difference is only a matter of

degree - at most. According to Buddhism, the issue is not punishment but correction, and the

best antidote to crime is to help people realize the full consequences of their actions

(Ratnapala12-13).

In determining the nature of an offence against the vinaya, everything about an offender's

situation is taken into consideration in order to make the best possible judgment about what

should be done: one's past, character and intelligence, the nature and conduct of one's

associates, as well as whether or not one has confessed. This may be contrasted to our own

judicial preoccupation with the black-or-white question of guilty/not guilty. "Degrees of

severity of the offense may vary, but in the end there are no degrees of guilt", which teaches

"the hidden message that people can be evaluated in simple dichotomies." From a

perspective that takes the offender's self-reformation (and is there any other type?) seriously,

such an approach is seriously flawed:



123

"Much evidence suggests that offenders often do not act freely or at least do not perceive

themselves as capable of free action. . . . Ideas of human freedom and thus responsibility

necessarily take on a different hue in such a context." (Zehr 70)

The vinaya supports the notion that our preoccupation with guilt is based on an erroneous

understanding of human nature and how it changes. "Guilt says something about the quality

of the person who did this and has a 'sticky,' indelible quality." (Zehr 69). Buddhist

emphasis on the transience of everything means there is nothing indelible about our

unwholesome mental tendencies; deep-rooted ones may be difficult to eradicate, but that is

because they are an engrained result of past habits, not an "essential" part of us.

The main concern of the vinaya is not ruling on guilt but determining the intention, because

one's intention decides the nature of the offence. If there is no consent to commit an act one

is not guilty of it; and the lighter the intention, the less grave the offence (Ratnapala 5, 93,

192).

Intention is also the most important factor in the operation of the law of karma, which

according to Buddhism is created by volitional action: "I am the result of my own deed . . .

whatever deed I do, whether good or bad, I shall become heir to it."8 A modern approach is

to understand karma in terms of what Buddhism calls sanskharas, our "mental formations"

especially our habitual tendencies. These are very important for Buddhism because they are

not tendencies we have but tendencies we are. Instead of being "my" habits, their interaction

is what constructs my sense of "me". Then we are punished not for our sins but by them.

People suffer or benefit not for what they have done but for what they have become, and

what we intentionally do is what makes us what we are. My actions and my intentions

build/rebuild my character just as food is assimilated to build/rebuild my physical body. If

karma is this psychological truth about how we construct ourselves, or about how our selves

are constructed by "our" greed, ill-will and delusion, then we can no longer accept the

juridical presupposition of a self-determined subject wholly responsible for its own actions.

Once we understand the mental tendencies that afflict all of us, desire for vengeance must be

replaced with compassion that emphasizes reformation.

The system of punishments used within the sangha shows how these principles work in

practice. The emphasis is on creating a situation that will help an offender to remember and

reflect upon the offence, in order to overcome the mental tendencies that produced it. Most

penalties involve what we now call probation. Probation is usually regarded as a modern

method of treatment derived from English common law, but it has been widely used in

Buddhism for 2500 years, because consistent with the Buddhist concern not to punish but to

reform. Once the probation was successfully finished, the bhikkhu returned to his previous

position and status, so "the social image of the offender‖ was not harmed. After the penalty,

he was received back and he enjoyed the identical position he had earlier without stigma or

8 . Anguttara Nikaya iii, 59.



124

contempt. Human dignity thus was always regarded as important in the court and in the

society, while under a penalty or after rehabilitation" (Ratnapala 77). This contrasts with the

humiliation built into our present retributive approach. A major factor in many offences is

low self-esteem, and a restorative system must address this explicitly by focusing on ways to

help offenders build self-esteem in the act of accepting responsibility for their actions.

This does not contradict the Buddhist teaching that there is no separate self. "Reintegration

requires that we view ourselves (and others) as a complex measure of good and evil, injuries

and strengths, and that while we resist and disparage the evil and compensate for our

weaknesses, we also recognize and welcome the good and utilize our strengths" (Van Ness

and Strong on re-integrative shaming, 118). This is precisely the Buddhist view of human

nature, which does not presuppose a unitary soul or self-determining subject, but

understands the self to be a composite of unwholesome and wholesome tendencies.

To sum up, the vinaya approach suggests that, if we are serious in our desire for a judicial

system that truly heals, we must find a way to shift our focus from punishing guilt to

reforming intention. Buddhism is a pragmatic teaching based on certain fundamental

propositions about how we experience the world and how we act in it. From the evidence of

the Buddha‘s discourses, it is clear that early Buddhists were very much concerned with the

creation of social conditions favourable to the individual cultivation of Buddhist values.

Just as the treasures are uncovered from earth, so virtue appears from good deeds, and

wisdom appears from a pure and peaceful mind. To walk safely through the maze of human

life, one needs the light of wisdom and the guidance of virtue.

- Lord Buddha



125

Application and relevance of

Res Ipsa loquitur

In motor accident cases (civil) in Sri Lanka

With reference to South Africa and United Kingdom

Chinthaka Srinath Gunasekara (L.LB-Colombo)

District Judge- Embilipitiya.

Background

Within the scope of civil judicial system of Sri Lanka, significant amount of cases can be

identified damage claims raised due to motor vehicle accidents .Unfortunately, the number

of fatal and non-fatal accidents is increasing day by day, resulting in an increase of court

cases. According to the statistics of Police Department, it is reported that the amount of

pending criminal court cases based on motor traffic accidents were 142750 in 2011.1

According to the police, within the period of 10-20th

of April 2014, 108 people have died

due to 89 accidents.2 The reports further reveal that 627 persons were killed due to fatal

accidents in the first three months of this year. Further, statistics reveal that nearly five

persons lose their lives daily due to injuries sustained, owing to a road accident and it was

noted that these accidents involved motor bikes, trishaws and buses3.

One of major concerns associated with these cases is inability of the victim to prove the

case due to non-availability of direct evidence. It is evident that in most of the occasions

claimants are not in a position to explain the exact nature of such accidents as they take

place un expectedly, leaving the victims , mental and physical condition less able to recall

about the accident. The court system remains the only course of action for a victim of motor

vehicle accident. The court system in Sri Lanka has no authority to decide cases brought

1 Traffic statistics , www.police.lk , the official web site of Sri Lanka police Department ,visited on 10.08.2014 2 Menaka Indrakumar, The Times of Sri Lanka( E-magazine published in Canada),posted on 26th april 2014,

www.timeslanka.com, visited on 03.08.2014 3 Supun Dias and Olindhi Jayasundara on Road Accidents, Deaths and regulations, Daily Mirror 10.08.2014 at

www.dailymirror.lk visited on 03rd 08.2014

http://www.police.lk/

http://www.timeslanka.com/

http://www.dailymirror.lk/



126

before the courts on humanitarian grounds, but to deliver judgments based on available laws

and evidence relating to such cases.

In a civil suit of an accident claim, under the Aquilian action plaintiff has the burden to

prove the elements by adducing evidence. This is very difficult in motor vehicle accident

cases given circumstances of the incident. The victim is given the burden of proving the case

while the perpetrator is relieved of any responsibility in the proceedings. Failure to prove the

case on preponderance of probability case may result in dismissal of the case. This is not a

desirable situation. This does not mean that burden of proof should be taken as defendant‘s

responsibility. But Res ipsa loquitur (the event speaks for itself) rule allows court to infer

negligence of a defendant on the basis of circumstantial evidence of a particular case, where

there is no direct evidence to prove negligence. It is enough for the plaintiff to show prima

facie case of defendant‘s negligence to make such inference. Then defendant can refute that

inference by adducing evidence that he is not negligent. When there is an existing rule like

res ipsa loquitur, which could play very important rule, effectiveness of application of same

will strengthen the best interest of justice.(instead of the term „res ipsa loquitur‟, the word

“maxim” has been used hereinafter for the convenience).

History of the maxim

An interesting story behind the formulation of res Ipsa Loquitur, the plaintiff of the

case of Byrne vs Boadle4 while walking along the public street, was struck by a barrel of

flour falling from a window of a house. The plaintiff could not testify the accident as he had

suddenly been injured by said barrel. Because the plaintiff sought to recover on the grounds

of negligence and there was no evidence of negligence. In the Court of Exchequer, it was

unanimously held that the plaintiff had in fact offered evidence, by proof of the injury under

the circumstances, to sustain a verdict of damages.

The court thought that a barrel could not roll out of a warehouse without some

negligence, and to say that the plaintiff who is injured by it must call witness from the

warehouse to prove negligence was preposterous.5

Similar incident based in the case of Kearney v. London, B. & S.C.R.R.Co.6 Here it

was found that the circumstances of a brick falling from a wall in a bridge upon the plaintiff

causing him injury amounted to sufficient evidence of negligence to apply the res Ipsa

Loquitur. Then this doctrine has been originated under the English Courts.

4 1863 (2) H & C 722 5 Ibid at 728 6 1870 L.R. 5 Q.B.411



127

Basic theory

When considering the interpretations given to the res Ipsa Loquitur, some have

considered it as an evidentiary rule. Some have considered it as a maxim. Some have

interpreted it as a legal principal. Therefore it is noteworthy to examine the theoretical

background of the norm through literature review briefly and the application of same in the

court.

According to B.S. Markesinis and D.F.Deaking, negligence will be presumed where the

means by which the damage was inflicted were under the defendant‟s sole control or where,

on first sight, no explanation other than carelessness by the defendant is possible.

The main idea of them is that the burden does not shift to the defendant. Then in such a

situation what is the duty cast upon the defendant? The answer is defendant may rebut the

prima-facie finding of fault by showing that he was not in sole control of the means of the

accident.7

Any way it seems that burden of proof still on the Plaintiff. That version is

corroborated with the views of Burshell , as he is on the opinion that in order for the

inference of negligence to be drawn ,the plaintiff must first prove(1) the injury was caused

by a thing which was under control of the defendant (2) the nature of the occurrence it self

leads to an inference of negligence on the part of the defendant or his servants because it is

some thing which usually does not happen without negligence and (3) the cause of the

occurrence is unknown .Then the court would be entitled to draw an inference of negligence

on the part of the defendant or his servants.8

According to the said theory burden of proof is still with the plaintiff. But some

researchers are taking contrary view thus, with regard to the version of Shailander Raj

Goswami,

“Generally in a case it is the plaintiff who has to provide

evidence to prove the defendant‟s negligence. The

burden of proof shifts to the defendant. There is a

presumption of negligence on the part of the defendant and

it is up to him to prove his non-liability and that it was not

his act which caused the plaintiff‟s injury. The defendant

leads the evidence.9

7 Ibid, p.161 8 J.Burchell, Principles of Delict, Juta and company,2010,P.106 9 Shailander Raj Goswami ,, Dr. Ram Manohar Lohiya national university ,Lucknow, Res Ipsa Loquitur with

reference to case laws, www.legalserviceindia.com visited on 7th .08.2014

http://www.legalserviceindia.com/



128

His view is similar to old approach of burden shifts to the defendant and also much broader

than others as he speaks about the presumption of negligence under the maxim, whilst

others speak about the inference of negligence.

It was arguable that under the res Ipsa Loquitur, whether the burden of proof is

shifted to the defendant or not. However Shailander also accepts that maxim does not apply

if the cause of harm is known.

It is said by some courts that maxim may be invoked only where the facts of the

occurrence warrant the inference of negligence, and the pleader, because of the nature of the

case, is unable to point out the specific acts which caused the injury.10

On the other hand, at

least one jurisdiction restricts its application to situations wherein therein absolute duty or

obligation amounting to that of an insurer in which case, it is said, a presumption of

negligence is raised. Ordinarily, of course, a contractual relationship between plaintiff and

defendant is not necessary for the application of res Ipsa Loquitur.11

Then it is seen that in a case based on negligence 3 types of situations could be identified.

(1) Though the plaintiff must produce some evidence of negligence, if he doesn‘t do

so, he has not made a case. Any way if he does so, he has made a prima facie case.

(2) When it is required to presume by the law, until the contrary is proved, that is to be

considered as a presumption. This is another situation when the presumption is not

rebutted judgment will be against that party.

(3) When burden of proof rests upon a party and no evidence is offered to satisfy it, the

judgment will be delivered against such party.12

But it is noteworthy at the 1st instance in the above; in such a situation (when

plaintiff establishes prima facie case) Question of Presumption will not arise. Then court can

make inference on it. The difference between inference and presumption is the ―inference‖

could be neglected by the court but presumption cannot be neglected.13

Though the theoretical background has been explained by several jurists in various

ways, the rationale is same. Before applying the maxim there must be sound understanding

about the theory. It should be carefully examined that what sort of circumstances has

indicated through the evidence. Under the basic theory of the maxim, in an accident case if

the plaintiff‗s evidence indicates that :(1) the defendant had exclusive control of the

10 King vs Davis (1924)296 fed. 986(this quotation is taken from the article ―Effect of Doctrine of res Ipsa Loquitur

by Fowler v. Harper and Fred E Hackel) 11 Bloom vs Cullman 1916(197) Ala 490 (this quotation is also taken from the article ―Effect of Doctrine of res Ipsa

Loquitur by Fowler v. Harper and Fred E Hackel) 12

These situations have been clearly categorized by Fred E. Heckel and Fowler as 3 presumptions, and court also

focused in the case of Sulliven vs Crabtree 36 Tenn.App 469 13 Cogdell v. R. R. 1903( 132) N C 852, this has been illuminated , in Wigmore on ―evidence‖2490 at p.450. This is

also quoted in the article of Effect of Doctrine of res Ipsa Loquitur by Fowler v. Harper and Fred E Hackel,

Illionis Law Review(1928),P.730



129

instrumentality that produced the injury and (2) the event that occurred was not likely to

have occurred without defendants negligence (3) non availability of the direct evidence

court can make inference of the negligence of the defendant‘s part unless he offers an

acceptable explanation of his innocence.

Further, some doubts, problems of the maxim have been cleared by the courts when

applying it. Then it is seen that res Ipsa Loquitur is not a doctrine but a mode of inferential

reasoning applies only to accidents of unknowing cause under the above 3 circumstances.

Then it is not difficult to understand the maxim.

There are some instances that due to specific provisions of enactments, application

of res Ipsa Loquitur will be limited. The effect of res Ipsa Loquitur is so shift the standard of

care towards a form of stricter liability, and it is therefore appropriate that its main

application lies in areas such as road traffic, an employers‘ liability where a high standard of

care has in any case been imposed. In principle, though, it is connected with inferences from

the facts and not with the legal imposition of a stricter standard. In the area of common law

liability for defective products which cause injury or other loss to ultimate consumers, courts

from Donoghue v Stevenson onwards have rejected the application of res Ipsa Loquitur and

required proof of fault by the manufacturer to be established. Statute, in the form of the

Consumer Protection Act 1987, has now imposed a form of stricter liability for certain kinds

of damage caused by defective products which in many respects is akin to a legal reversal of

the burden of proof. 14

Prof. Savitri Goonesekere also expressed that, while it is

impossible and also unnecessary to demarcate the types of

situation in which the plaintiff can point to his damage and

the event, and say “res Ipsa Loquitur”, it is clear that the

requirement that the ordinary experience of mankind should

associate the occurrence with negligence on the part of

those in control, operates as a limitation or the use of this

maxim. If the effect of the maxim is to create a presumption

of law affecting onus so that the plaintiff can maintain a

silent the defendant proceeds to prove that he was not

negligent, it because the more necessary to limit the areas

in which the plaintiff can effect a radical change in the law

on burden of proof.15

Lord Justice Fletcher Moulton, in the case of Wing v London General Omnibus Co.

Ltd16

has mentioned that this maxim has no application with regard to the street accidents.

But, Professor Mckerron‘s view is too broad and absolute a statement and in he is of the

view that,

14 B.S. Markesenis & S.F. Deakin, Tort Law, 3rd edition,oxford1995, p.162 15 Prof. Savitri Goonesekere, Res ipsa loquitur, Colombo Law Review 16 (1909) 2 KB 652



130

“It true that the maxim has only a limited application to

collisions between moving vehicles, because, as is observed

by Scrutton L.J. in McGowan v Stott,17

where both parties

are moving and have a right to move, prima facie the mere

fact that these moving bodies run into each other is not

evidence of negligence‟. But, subject to this reservation,

there is no reason why the maxim should not apply to road

accidents, and it has been held to be so applicable in a

number of cases, both English and South African.18

Thus in Arthur v Bezuidenhout 19

, the plaintiff sued for damages for the loss of a motor

vehicle which had been wrecked in a collision with another vehicle. As a result of the

collision the drivers of both vehicles were killed. The evidence was that the defendant‘s

vehicle suddenly swerved on its incorrect side and collided head-on with the plaintiff‘s

vehicle. It was a common cause that after the accident the steering sector shaft was found to

be broken and that the vehicle was thereby rendered uncontrollable. It was held that,

“the maxim applied, that as on the evidence the

probabilities were that the severance of the shaft was due to

the impact and not, as alleged to torsional fatigue, the

inference of negligence had not been displaced, and

accordingly the defendant was liable”.20

After considering the cases such as Kuranda vs Sinclair 21

, Gordon vs Mathies

estate22

, Hamilton vs Mackinon23

he took the view that, the application is applied even for

such accidents.

With regard to the above discussion, it is clear that there may be several incidents

connected to motor accidents. Some authorities regard the doctrine as a principle of

evidence,24

while others insist upon treating it as a rule of the substantive law of tort.25

The

results of its application have been varied and the theories upon which it is applied are by no

means in harmony.

Anyway now it is clear whether in a Criminal case or a Civil case, based on

negligence of the defendant, when there is no direct evidence under the earlier discussed

circumstances the doctrine of res Ipsa Loquitur is given much effect for the plaintiff to

17 (1923) 143 L.T.217 at 219‘ 18 R.G.McKerron, The Law of Delict, 7th Edition, Juta and Company,1971.p.44,45 19(1962) 2 S.A.566 (A.D.), 20 Ibid.p.45 21 1932 WLD1 22 1958 (4) SA 149, 23 1933 CPD 353 24 Fred E. Heckel and Fowler V. Harper Effect of the Doctrine of Res Ipsa Loquitur, 22 illionis Law review, 724,

(1928), http://digitalcommons.law.yale.edu, 25 Ibid, P.727

http://digitalcommons.law.yale.edu/



131

present his case as a special situation to the normal routine. The other use of res Ipsa

Loquitur is to create strict liability.26

Res Ipsa is one type of circumstantial evidence that

allows a reasonable fact finder to determine that the defendant s‘ negligence caused an

unusual event that subsequently caused injury to the plaintiff. As it has developed since

then, Res Ipsa allows judge and jury to apply common sense to a situation in order to

determine whether or not the defendant acted negligently.27

According to the above mentioned theoretical background there is no conclusive

concrete authority to say that , whether res Ipsa Lopuitur is a evidentiary rule or not.

There are several schools on topics of whether the burden of proof shift to the defendant or

not and presumption of negligence to be rebutted by the defendant.

Any way such confusion may lead to application it in various ways as said earlier.

But after analyzing above views and application in court cases it could be said, that burden

of proof does not shift to the defendant. Anyhow, if the plaintiff is able to create prima facie

case, defendant has to give a reasonable explanation to vacate the inference created by the

plaintiff. Then there is a similarity between the res Ipsa and doctrine illuminated by the case

of Rex v Cochrane28which is called today as ―Ellenborough Dictum”. Hence, application of

the rule is legally fit doctrine in accordance with the evidentiary rules. On the other hand it

is practical and fair to consider it as a rule of law. In the case of Silva vs North western

Transport Board 29

Court of Appeal of Sri Lanka has recently observed that, the two views

of res Ipsa Loquitur thus, ―(1) it is not a rule of law its own. Ultimate burden of proof rests

on the plaintiff. (2) It represents a rule of law. But second view is more practical and fair.

Take increasing road accidents for example. An accident occurs and sometimes find it

difficult to identify the person actually negligent. In such situations, depends on facts and

circumstances, this rule may be useful as a rule of law.‖30

Then at the end of the day, considering the fact of impact of res Ipsa Loquitur, it

could be concluded that, it is a rule of law in which the burden of proof is with the plaintiff

on the one hand and a rule that safeguards the victims of accidents on the other. Every other

cause of actions other than the accidents (which reason is unknown) is well known to the

plaintiff. As examples thus, in a divorce action, plaintiff has the knowledge over his

marriage life. Even in a Rei Vindicatio action, Possessory action, Partition suit or Money

recovery action plaintiff has all the materials prior to the action with his means of

knowledge. But in an accidental matter that is not such. Then such cases must be considered

separately. The maxim res Ipsa Loquitur is essential to be applied correctly for the sake of

justice due to above reasons. When considering other jurisdictions it is unable to trace any

country which totally rejects the maxim.

26 Eeshani Sharma, Res Ipsa Loquitur with respect to the Tort of Negligence. Published on 19.01.2013(She has

quoted the case of Ward vs. Tesco), http://jurisonline.in visited on 08.07.2013 27 Res Ipsa Loquitur, http://injury.findlaw.com/accident-injury-law/res-ipsa -loquitur.html ,visited on 11.09.2013. 28 1814 Gurneys Law reports 479 29 CA 543/1998(f),Date of the Judgment:12.01.2012. 30 per, Justice Anil Gooneratne, at p.9

http://jurisonline.in/

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Applicability of the maxim in motor accident cases (civil) in

Sri Lanka

It is also noteworthy that only selected judgments are reported. As there is no

mechanism to publish the first instance court decisions up to date, we have to focus on

higher court decisions.

Effect of Res ipsa Loquitur has discussed in the case of Safena Umma vs Siddik31

.

Dalton J. was of the view that when the maxim was invoked by the plaintiff the burden

shifted to the defendant. In an action to recover damages for injuries caused by a motor bus,

which was driven in high speed, suddenly went out of the road and knocked down a boy

standing on the doorstep of a house. Plaintiff‘s evidence was enough to show the negligence

and story of the defendant with regard to the accident was not satisfactory. Then the action

succeeded. Though the Supreme Court judgment is delivered before 7 decades (77 years), it

is very significant up to now as the Supreme Court applied the maxim effectively by

refusing trial court judgment also by granting relief to the plaintiff after rejecting mere

explanation given by the defendant.

Anyway, mere application of the maxim does not mean that in each case plaintiff

must be given reliefs. There may be cases in which victims of motor accidents are at fault.

But if somebody victimized unexpectedly, with a reason beyond his (victims) control, in

such a situation there must be more responsibility to the wrongdoer to explain his innocence.

The impact of the above judgment reveals one facet of the legal system. If the plaintiff is

able to conclude in the trial court rather coming to higher forum, cost of litigation and

expenditure of government may be minimized. In several cases appellate courts has refused

trial court decisions based on burden of proof by applying the maxim. One classic example

could be in this nature is Abeypala vs Rajapaksa32

,

Facts in brief; there are a collision between a bus (which had been stopped) and a

motor car. The bus owner sued against motorist .The main issue was who has to discharge

the burden of proving negligence. Supreme Court held that the presumption proving

negligence arose from the facts and he has to explain the absence of negligence. It was

further held that in an action founded upon a collision between plaintiff‘s omnibus which

was at a standstill and defendants motor car which ran into it from behind there is a

presumption of negligence and it is for the defendant (the car driver) to offer an explanation

in not having negligence. Keunaman J. is of the view that,

― there is a prima facie proof of negligence, and it is for

the defendant to offer an explanation which court may or

may not accept, or regard as reasonably true, in negating

negligence. The District Judge has failed to appreciate this

31 (1934) 37 NLR 25 32 (1943) 44 NLR 289



133

matter of the burden of proof, and the shifting of the burden

to the plaintiff. Because of this, his judgment cannot be

sustained.”

He set aside the judgment of the District Judge, and ordered that a new trial be held

before another District Judge in which all relevant matters will be fully considered including

any explanation tendered by the defendant.

Considering the first case, court was of the view that Burden of proof shift to the

defendant. But in the latter it has been clearly mentioned that the defendant owed a duty to

offer explanation and not speaks about burden of proof. But in the first occasion mere

explanation given by the defendant was not reasonable, hence there is no any defect of

applying the maxim based on burden of proof in my view. When it pays attention with

regard to second case, if the District Court applied the maxim, plaintiff does not warrant an

appeal. Therefore this case is very important on effective application of the maxim.

In an another incident based on an accident, an omnibus stopped at a halting place

to enable passengers including the plaintiff to alight and the plaintiff was later found run

over by the rear wheel of the bus. It was held that the maxim res ipsa loquitur applied and

that in the absence of an explanation the defendant was liable.33

Supreme Court is of the view that in the ordinary course of things the rear wheels

of an omnibus which is carefully and competently handled do not run over a person who has

just alighted from the vehicle at a prescribed halting place. The doctrine of res ipsa loquitur

clearly applies to such a case, because ―where the accident was such as does not normally

happen if those that have the management use proper care, it affords reasonable evidence, in

the absence of explanation by the defendant, that the accident arose from want of care‖. In

the present case the driver has signally failed to give or even to suggest an explanation

which can be regarded as sufficient to rebut the presumption of negligence raised against

him. Indeed, he unblushingly confessed to almost complete ignorance of what had

happened. The drivers‘ mere explanation was that he did not know what has happened,

when plaintiff get off from the bus, he started to proceed the bus as conductor gave signal to

travel the bus. Anyway he has seen that plaintiff alighted from the bus and after bus

travelled two three feet he has stopped the bus as people shouted. Then he has seen that

plaintiff had been run over. Justice Gratiaen further held that,

“Far from serving to rebut the presumption of negligence,

this frank admission by the driver seems to me to strengthen

the case against him. If the driver of an omnibus is content

to surrender his judgment to the conductor on the question

whether it is safe to drive on without risk to the person who

were known, in an atmosphere of chaos and confusion, to

be in very close proximity to the vehicle, he does so at his

33 Perera vs Gamini Bus co Ltd, (1949) 51 NLR 328



134

peril. To drive “in blinkers” on such an occasion is to my

mind an act of gross and unpardonable negligence. It

shows callous disregard for the safety of others.”34

Facts reveal that accident happened on June 22, 1945, before 69 years, But Even

today after an accident, what does negligent driver say? The answer is ―same‖. Most of them

don‘t care about their duty owe to passengers, pedestrians and other vehicles. Then maxim

provides greater duty of questioning their duty of care towards other. This case is also

evident to that effect. In a case of motor accident claim, it is not enough to say by the

defendant that the accident occurred due to mechanical defect. He must be explained how

said defect had arisen and must show that it is beyond his control. This has been discussed in

the case of Cabraal vs Albaratne35

. In a case where the doctrine of res ipsa loquitur is

applicable, the burden on the defendant is not only to give a reasonable explanation of the

accident in question but also to show that the specific cause of the accident does not connote

negligence on his part.36

Then it is clear that a specific explanation is required from the defendant. In a case,

where maxim applies plaintiff‘s duty is also very important. One thing seems certain and

must be born in mind when there is reference to the maxim, and that is that it does not mean

that a plaintiff alleging negligence is ever absolved from establishing it. This is the view of

justice Soertz expressed in the case of Fraser Nursing Home vs Olney.37

When considering old judgments, though the maxim has been applied in motor

accident cases honorable justices have based their views on the basis that burden of proof

with the defendant. As mentioned above there was an uncertainty of the burden of proof.

That may be affected to Sri Lankan judgments also. In the case of Punchi Signgno vs Bogala

Graphite Co. Ltd38

Supreme Court applied the maxim with same view. According to the

facts, plaintiff claimed damages caused to his lorry by a collision between his lorry and the

1st defendant‘s lorry. The evidence showed that the 1

st defendant‘s lorry, which was being

driven by the 2nd

defendant, was on the wrong side the road when it was struck the

plaintiff‘s lorry and that the accident was due to a sudden disorder in the steering mechanism

of the defendant‘s lorry. It was held that the maxim res ipsa loquitur was applicable. The

burden was on the 1st defendant (owner of lorry) to satisfy the Court that he caused

periodical checks and had necessary repairs attended to and did everything in his power to

ensure the mechanical soundness of his lorry.

Dr. Wickrema weerasooriya is of the view that, this is an important decision on the

principle of res Ipsa Loquitur sometimes also referred to as ―inevitable accident‖ which

often comes up in motor accident cases and also another Supreme Court decision which did

not follow an earlier decision on the same topic of law. He has made an observation that

34 Justice Gratien (Justice kanakaratne has agreed) 35 (1955) 57 NLR 368 36 Justice K.D De Silva, (Justice Swan has agreed) 37 (1944) 45 NLR 77 38 (1967) 73 NLR 66



135

Current day lawyers involved in Motor Traffic damages claims should study this decision

carefully for the topic of res Ipsa Loquitur and inevitable accident. 39

The court of appeal of Sri Lanka has applied the maxim in the case of

Subawickrema vs Samaranayake 40

.It was held that, the burden on the defendant where the

maxim res ipsa loquitur is applicable is not only to give a reasonable explanation but also to

show that the specific cause of the accident did not connote negligence on his part. The onus

is on the defendant to show positively that there was no want of care on his part to attend to

periodical checks, necessary repairs and doing everything in his power to ensure the

mechanical soundness of the vehicles. In this case, the defendant had failed to do this and

the plaintiff was therefore entitled to damages.41

There is another recent example for rejecting trial court decision after applying the

maxim. In the case of Salma Amanawattiya vs Thissa Kasthuriarachchi 42

justice Anil

Gooneratne has set aside the judgment of the original court by saying that he would prefer to

fortify his views to be applied to the facts of the case in hand by considering the maxim of

res ipsa Loquitur‖43

The facts of this case according to the judgment were, on or about

14.08.1990 plaintiff‘s husband died as a result of an accident, caused by an Omni bus driven

by the 1st defendant and the 2

nd defendant who was the owner of the bus bearing No 22 sri

9150. The deceased was a passenger in the bus at the time of accident and the issues suggest

that the deceased at the point of impact jumped out of the bus and died as a result of the bus

over turning. It suggests that death was caused due to the negligence of the deceased. The

learned District judge dismissed the plaintiff‘s case due to the fact that plaintiff has not

proved the case by direct or circumstantial evidence. Any way it was revealed at the trial

that the bus was not roadworthy. The Plaintiff-Appellant argued that this was a fit case to

apply the maxim of res ipsa loquitur and that therefore in the absence of proper explanation

by the defendants, they would be liable. The Court of Appeal said that the defendants were

liable and held as follows.

“Res Ipsa loquitur represents a rule of law. The rationale

for a rule of this nature to emerge or to be adopted was

because the plaintiff was unable to give details of the true

cause of accident and provide precise details about it. In

other words, the knowledge of the true cause of accident

lies with the defendant. As such, the plaintiff needs to prove

39 Dr.Wickrema Weerasooria, Law governing insuarance negligence damages and third party claims, july

2013,p.678,680 40 1992 (1) SriLR p.142 41 Justice Ismail. 42 CA767/1997(f),(decided on 13.12.2011), 2012 Bar Association Law Reports 323 43 At p.5 of the judgment.



136

a prima facie case of negligence. It is more or less a rule of

evidence44

.”

Reasons for applying the maxim are, the evidence placed before the original court

by the 1st and 2

nd defendants regarding the mechanical condition of the bus to be

unroadworthy would permit court to infer negligence on the part of the defendants. It has

been further held that,

“in the case in hand there need not be expert evidence to

rely on liability or the condition of the vehicle, unless

complications are apparent.45

”

Then it is clear that the application of the maxim in recent matters based on the

inference of negligence and not with the ground shifting of burden to the defendant. It is

emphasized in the above case that when there is no reasonable explanation, where there are

no complications there is no need of calling expert evidence. It is noteworthy that the

approach of the court is more positive as the court has focused on the fact that the

‗knowledge of the true cause of accident lies with the defendant‘. In previous cases that fact

has not discussed yet. Then this would be a very important case for the development of the

maxim in Sri Lanka. Any how it seems that maxim has not applied nor refused at the

original Court.

When the maxim never pleaded or raised as an issue in the original court, appellate

court is reluctant to permit such a plea for the first time in appeal. This situation has

elaborated in a recent case, R.G.L De Silva vs North Western Transport Board 46

by the

Court of Appeal. Facts of the case were that the plaintiff (appellant) filed an action in the

District Court of Kuliyapitiya claiming damages in consequence of injuries suffered by him

due to collision between the vehicle in which he traveled and bus belonging to 1st defendant

driven by the 2nd

defendant. Plaintiff‘s action was dismissed. Plaintiff appellant drew

attention of Court of Appeal to the maxim. But court made following views.

―This position never pleaded or raised as an issue in the

original court. If the plaintiff relied on same an issue should

have been suggested to enable the defendants to give an

explanation and give the cause relevant to the accident. In

the absence of it being raised in the original court, I am not

inclined to accept same. At the best the Appellate Court

could refer to same only if the facts itself speak or apparent

from evidence, provided the defendant had opportunity to

explain. To permit such a plea for the first time in appeal

44 Ibid at p.6There is no defense or an acceptable explanation put forward by the defendant‘s to get them selves

absolved from the case. Facts itself speak the truth of the case make the defendant liable in negligence. There is

no material to establish that the accident occurred due to a cause beyond the c 45 Per Justice Anil Gooneratne, see p.9 46 CA 543/1998, decided on 12.01.2012



137

would be unreasonable /unfair and lead to a travesty of

justice especially in the absence of representation of the

respondent though they cannot be excused for their absence

in the Appellate Court.”47

Nevertheless, the Court of Appeal has

considered the maxim in detail with reference to decided English and Sri Lankan authorities

and concluded that maxim cannot apply by reason of plaintiff has not made a case against

the defendant . One of the reasons of non-application of the maxim was due to plaintiff‘s

inability to adduce independent evidence to show defendant‘s negligence. Contemplating the

mentioned reasons Court was of the view that though the maxim is adopted it cannot apply

haphazardly. Otherwise definitely maxim could be applied.

This case explores the importance of pleading and raising the maxim in the original

courts and also adducing evidence to enable to make inference to the court. Further it reveals

that the mentioning about the maxim in written submission is insufficient. Hence this

judgment has given guideline to the application of maxim. In Sri Lankan perspective, there

may be some questions of applying the maxim thus, whether plaintiff should plead/raise it?

or whether court can apply the maxim ex mere motu as an evidentiary rule?. Though that is

arguable, for the time being, this judgment has provided the answer that plaintiff has the

duty to raise /plead the maxim in proper forum and proper stage.

According to the Prof. Savitre Goonesekere, it is of course arguable that once the

maxim Res ipsa loquitur is not deemed to shift the burden of proving from plaintiff to

defendant it ceases to be of any special significance, and indeed may be accommodated

within section 114 of the Evidence Ordinance which deals with presumption of fact.48

In my

view the maxim cannot be considered as a presumption. Though the inference can be

neglected, presumption cannot neglect by the courts. Basic elements of the maxim should be

fulfilled by adducing evidence when direct evidence is not available. Then circumstances

may different case to case. This has been settled by recent Sri Lankan judgment49

and also in

the English cases.50

Applicability of res ipsa loquitur in motor accident cases in

South Africa

Jonathan Burchell explains the effect of the application very carefully and sharply,

47 Justice Anil Goonaratne,at P.7 and 8 48 Res ipsa loquitur, Colombo Law Review. 49 R.G.L De Silva vs North Western Transport Board, Salma Amanawattiya vs Thissa Kasthuriarachchi 50 Sulliven vs Crabtree. 36.Tenn.App 469 per Felts J. The effect of res ipsa loquitur , like that of any other case of

circumstancial evidence ,varies from case to case , depending on the particular facts of each case; and therefore

such effect can no more be fitted in to a fixed formula or reduced to a rigid rule that can the effect of other

cases of circumstantial evidence. The only generalization that can be safely made is that,in the words of the

definition of res ipsa loquitur , it affords ―reasonable evidence‖, in the absence of an explanation by defendant

,that the accident arose from his negligence.



138

“no burden of proof is shifted from the plaintiff to the

defendant. The defendant may seek to rebut the inference by

adducing evidence that he was not negligent but he is not

obliged to do so. However, if the defendant remains silent

in the face of negligence on his part, he takes the risk of

judgment being given him.51

Then it demonstrates the duty of plaintiff and defendant when applying the maxim.

The word ―maxim‖ has been used in the court decisions and by the South African jurists

such J.C. Macintosh and C. Norman to introduce the res ipsa loquitur. Moreover, the maxim

is commonly applied where the plaintiff is not in a position to produce direct evidence of the

conduct of the defendant. This has been illustrated by the Millin j., in the case of Watt v. van

der Walt52

quoting Lord Shaw in as follows,

“It is the expression in the form of a maxim of what in the

affairs of life frequently strikes the mind, that is ,that a thing

tells its own story- not ballard vs North British railway

always but some times. But although a thing tells it own

story. That is not necessarily the whole story. Accordingly

when the story would seem to be relevant to infer liability

for some occurrence out of the usual, the remainder of the

story may displace the inference. But if the remainder of the

story does not do so, the inference remains res ipsa

loquitur.”

It is clear that under the said circumstances the maxim is applicable in South

Africa. However in the recent past, it was argued that res ipsa loquitur is not considered as a

principle and not even a rule in South Africa53

. South Africa too was an opinion that under

the maxim Burden of proof shifts to the defendant.54

Nonetheless, in the case of Arthur vs

Bezuidenhout and mieny 55

this has been rejected and Thompson J was of the view that.,

―That is not, however to say that the onus rests on the

defendant to establish the correctness of his explanation on

a balance of probabilities. The maxim res ipsa loquitur,

where applicable, gives rise to an inference rather than to a

presumption .Nor is the court or jury necessarily compelled

to draw the inference.”

Same view has been taken by later courts in recent cases. There is no onus on the

defense to prove an innocent explanation on balance of probabilities. But, in the light of the

51 Principles of Delict, Juta and company, 5th impression, 2010 (emphasis added by me) 52 1947 (2) SALR 1221 53 Hamilton vs Mackinnon, 1935 AD 364 54 Naude No vs Transval Boot and Shoe manufacturing co 1938 AD 379 55 1962 (2) SA 566 (A)



139

nature of the occurrence a duty was imposed on the defendant to lead evidence which was

sufficient to restore the equilibrium which by now had swung in the plaintiff‘s favor by

reason of the inference which arose res ipsa loqutur.56

This case is also related to a motor

accident. The court applied the maxim and imposed liability on the defendant as there was

no explanation of the accident by stating that,

―Still do not know how the vehicles came to be and to remain in the road‖57

The explanation of the defendant must be a reasonable, true and sufficient one thus,

credible and reasonable and practical explanation.58

The Court of Appeal of Sri Lanka also

held that defendant is required not only to give a reasonable explanation but also to show

that the specific cause of accident did not connote negligence on his part.59

When the maxim

applies in a case an inference of negligence can be drawn from the evidence. The defendant

has to provide an explanation why the driver was not negligent60

. The maxim applies where

a motor car collides with a parked car, as a result of losing a wheel.61

Proof that a motor

vehicle in a stream of traffic stopping suddenly. A following driver is thus under a duty to

regulate his speed and his distance from the vehicle ahead as to be able to avoid a collision

should the vehicle ahead stop suddenly. If the driver of the following vehicle is unable to do

so and a collision results the inference is that he was either travelling too closely to the

vehicle ahead or too fast or that he was not keeping a proper look-out. Hence, proof of

negligence in fact res ipsa loquitur.62

This version has been accepted by Zondi j. in a recent

case of south Africa Garth Russel Blaauw vs Katrina Gertrudia Veenman63

. That is a case

where an action for damages arising out of a motor vehicle accident, defendant was

travelling at a high speed and too close behind the plaintiff. The defendant had been

following (tailgating) plaintiff, suddenly the plaintiff applied brakes to avoid a collision with

a front petrol vehicle which travels between two lines of the road and no way to overtake the

vehicle. The defendant who had been following plaintiff suddenly moved to the left of the

plaintiff‘s vehicle to avoid colliding with a barrier rail on the left shoulder of the road. Then

he moved to right and collided with plaintiff‘s vehicle. It was held that,

“driver must anticipate the possibility of a vehicle

travelling ahead in a stream of traffic. There is no evidence

by the defendant to rebut the inference of negligence. A

reasonable driver in the position of the defendant would

foresee the reasonable possibility that if drove too closely it

would be unable to avoid a collision.”

56 In the matter between The Road Accident Fund and Zilandie Mehlomakulu 2009 (5) SA 390, www.saflii.org 57 Per Jones j 58 J.C Macintosh & C.Norman, Negligence in Delict, 3rd edition,(Reprint 2003)p.367 59 Subawickrema vs Samaranayake1992 (1) Sri LR p.142 60 Bock vs Motor vehicle accident Fund of Namibia 2008 NAHC 93 61 Clements vs Esmeraldo 1946 CPD 964 62 Cooper, Motor Law, Vol.2 P101 63 2012 ZAWCHC 124

http://www.saflii.org/



140

Then maxim applied, plaintiff succeeded. Effectiveness of that case is very

important to Sri Lanka as many people use express ways presently. As consequence it is

clear that the maxim applies in South Africa in motor accident cases under the

circumstances stressed in the judgments.

Applicability of res ipsa loquitur in motor accident cases in

United Kingdom

In England, once it was admitted that there was a support for the view that once res

ipsa loquitur applied the legal burden of proof shifted to the defendant and he was liable

unless he proved on a balance of probabilities that the event was due no fault on his part.64

Some Sri Lankan judgments also took same view.65

But the current English view is

completely different. In the case of Ng Chun Pui vs Lee Chuen Tat66

there is no shift in the

formal burden of proof, which remains throughout on the claimant. Supposing the South

Africa too, the burden of proof does not shift to the defendant. Lord Griffiths said that,

―Although it has been said in number of cases, it is

misleading to talk of the burden of proof shifting to the

defendant in a res ipsa loquitur situation. The burden of

proving negligence rests throughout the case on the

plaintiff and so in an appropriate case the plaintiff

establishes primafacie case by relying upon the fact of the

accident. If the defendant adduce no evidence there is

nothing to rebut the inference of negligence and plaintiff

will have proved his case.”

English courts also accepted the point that the defendant may rebut the prima facie

finding that he was not in sole control of the means of the accident. In the case of Henderson

vs Henry E. jenkins and sons67

“a judge sitting alone ,however , cannot separate his

function as tribunal of law and fact in this way and sensibly

say in one breath that it is case of res ipsa loquitur and then

go on to find for the defendant. If he is not prepared to say

that, in the absence of evidence from the defendant, the

claimant has proved his case by pointing to the

circumstances of the accident he will not hold that it is a res

ipsa loquitur case in the first place. If the defendant chooses

not to respond by offering an explanation consistent with

64 Winfield and Jolowicz on Tort, 16th edition by W.V.H. Rogers, p.207 65 Safena umma vs siddik (37 NLR 25), Cabraal vs Albaratne (57 NLR 368), Punchisgngno vs Bogala Graphite Co

(73 NLR 66), Subavickrama vs Samaranayake (1992(1) Sri LR 142) 66 1988 R.T.R. 296 pc 67 1970 A.C.282



141

due care, then the claimant will win. This was not

necessarily so in the days of trial by jury, for the question

then was whether there was sufficient evidence to leave the

case to the jury and if the judge did so a verdict for the

defendant was not necessarily perverse. In most cases

where the claim gets as far as trial, however, the defendant

has something to say in response and the question arises of

what he has to do rebut the prima facie case”68

.

When there is ―no control‖ of the thing which caused the accident, over the

defendant, res ipsa loquitur cannot apply. This has been decided by the English courts in the

case of Easson vs L.N.E. Ry69

. Subject to that, under the definition given in the case of Scott

vs London and St. Katherine Docks co.70

, res ipsa loquitur applies in the English law in

motor accident cases. They have courage enough to impose liability on drivers even where

the driver has been found liable for injuries caused whilst suffering a heart attack.71

The case of Sulliven vs Crabtree72

exhibits the present scope of maxim in English

law. It was held that the maxim does not apply for all motor accidents. But it may apply to

such an accident where the circumstances causing it were within the driver‘s control and the

accident was such as does not usually occur without negligence. So where a motor vehicle,

without apparent cause, runs off the road and causes harm, the normal inference is that the

driver was, negligent, and res ipsa loquitur is usually held to apply.

Evaluation

In South Africa it has been restricted applying the maxim in medical negligence

cases73

and Negligence of the Attorneys74

.But that situation does not effect for the motor

accident case since they apply it effectively. Classic example in this regard is recent case of

Anna Elizabeth vs Pharmcare Ltd and Rita Elizabeth vs Pharmcare Ltd75

(connected

case)based on product liability. Though it is based on product liability the Supreme Court

Appeal made following comment.

―True, the maxim only comes to play if the plaintiff‟s

evidence is such that it can be said that event would not

occur without their having been negligent manufacture, but

it is perfectly conceivable that the courts may develop

reasons being readier in some cases of alleged defective

68 Winfield and Jolowicz on Tort, 16th edition by W.V.H. Rogers, p.207 69 1944 (2) KB 421 70 1865 (3) H & C 596 71 Robberts vs Rams bottom 1980(1) WLR 823 72 36 Tenn.App 469 73 Van Wyk vs Lewis 1924 AD 438, Castle vs de Greef 1993 SA 501, Pringle vs Administrator 1990 (2) SA 379 74 Elizabeth Steyn No vs Ronald Bobroff 2012 SASCA 184 75 Supreme court of appeal of South Africa, case No 32/2002, decided on 28.03.2003,



142

manufacture to draw the necessary primafacie inference of

negligence, where expert evidence is extremely difficult for

the plaintiff to acquire…”76

They have taken positive approach on the maxim and they apply it in all the

situations of motor accident cases which the basic requirement of the maxim fulfills. In

United States of America res ipsa Loquitur may applied when multiple defendants and

instrumentalities may have caused the accident, provided there is a finite group at which to

point the blame.77

But, as mentioned earlier motor accident cases based on negligence should be

considered separately due to difficulty of proof negligence. Therefore in my view defendant

is responsible for explain the accident. Reason for that, most probably knowledge of cause

of accident and control over the vehicle is with the defendant. There is an evidentiary rule

that, when any fact is especially within the knowledge of any person, the burden of proving

fact is upon him.78

But res ipsa loquitur does not expand so far. It reveals the fairness of the

maxim. Then, now law is very clear in all jurisdictions pertaining to the explanation of the

defendant. Supposing above, It balances the rights of both parties plaintiff and defendant

under the maxim as it casts duties upon plaintiff as well as defendant. That is also good

impact of the application.

Conclusion

In the past there was a tendency to elevate res ipsa loqitur to a special rule of the

law of negligence. One had disputes as to whether res ipsa loquitur ―could‖ apply to

complex matters like surgery or the operation of an air craft, but modern eyes these

controversies are misplaced, because matters of drawing inferences from particular facts

cannot be subject to rule of law and it is not possible to identify in advance categories of fact

situations to which res ipsa loquitur will applicable.79

It is evident that, some negligent acts

may beyond the control of defendant. In such a situation non application of the maxim is

fair. Considering above, it is clear that the maxim could be used in Sri Lanka as a rule of

proving negligence as South Africa and United Kingdom applies it effectively and also

appreciated by the superior Court decisions of Sri Lanka.

Apart from above my suggestion is to incorporate a separate chapter to the civil

procedure code80

with regard to the motor accident claims. Presently there are separate

chapters for various actions.81

Likewise specific provisions pertaining to the jurisdiction82

,

applicability of the maxim could be inserted. Present civil procedure code is old more than

76 P Howie J at p.12,13 77 Ybrra vs Spangard, www.lawnix.com visited on 27.08.2014 78 Sec.106 of the Sri Lankan evidence ordinance. 79 Winfield and Jolowicz on Tort, 16th edition by W.V.H. Rogers, p.204 80 02 of 1889 (severally amended) 81 Testamentary, money recovery, Divorce. 82 Per sec 9 of the civil procedure

http://www.lawnix.com/



143

120 years. Under the section 9 of it, territorial jurisdiction has been limited, since an action

shall be instituted in the court within the local limits, if a party defendant resides or the

cause of action (the accident) arises within the locality. This may be badly affected the

litigants who live in different localities. This is another barrier to access to the justice.

The execution of the decree is also affected to the plaintiffs. Current system of execution is

also too old and not much efficient. Therefore it is the high time to bring an amendment to

the civil procedure code or special provisions act pertaining to motor accident claims. Until

such a codification, it can be adopted positive approaches as observed in other jurisdictions

when applying the maxim.

The fight for justice against corruption is never easy. It never has been and never will be. It

exacts a toll on our self, our families, our friends, and especially our children. In the end, I

believe, as in my case, the price we pay is well worth holding on to our dignity.

- Frank Serpico

http://www.brainyquote.com/quotes/quotes/f/frankserpi179244.html?src=t_justice



http://www.brainyquote.com/quotes/authors/f/frank_serpico.html



144

Winding Up Law in Sri Lanka

Need of a Corporate Rescue Culture

Nuwan Tharaka Heenatigala

Additional District Judge, Polonnaruwa

Introduction

Companies are legal personalities and have perpetual succession. Their existence cannot

cease as that of human beings. There may be several appropriate reasons for the existence of

a company to cease. The end of a company comes when it is dissolved. ―Winding up‖ or

―Liquidation‖ is the process that prepares the company for dissolution, whereby, the assets

of a company are collected and realized, the proceeds of such realization are utilized to settle

the debts and liabilities of the company and, any balance that remains after meeting the costs

and expenses of the winding up and settlement of such debts and liabilities is distributed

among the members of the company or distributed as the constitution of the company

directs. However, when an insolvent company is being wound up there will be no assets left

for distribution among the members of the company.

The legal definition of the word ―Winding Up‖ can be defined as follows. ―The process of

dissolving a partnership or corporation by collecting all assets and outstanding income,

satisfying all the creditors‘ claims, and distributing whatever remains (the net assets). These

may be distributed as cash or in kind, first to preferred stockholders, if any, and then to

remaining shareholders, if any, pro rata. Winding up is in anticipation of a company‘s

dissolution‖.1

Since the companies are legal personalities, their winding up is regulated by law. In Sri

Lanka, winding up of companies is regulated by the Companies Act No.07 of 2007 and the

Winding up Rules of 1939.In the case where the winding up of a company commenced prior

to the introduction of the new Companies Act and the completion of which is still pending,

1 http://law.yourdictionary.com

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145

the applicable laws are the Companies Act No.17 of 1982 and the Winding up Rules of

1939.

This essay will analyze weaknesses in winding up law in Sri Lanka and suggestions to

overcome those weaknesses and also examine options available for companies in a financial

difficulty, other than liquidation.

Brief overview about the current winding up law in Sri Lanka

Winding up of companies could be carried out voluntarily or by court or under the

supervision of court, on various grounds2. It could be done voluntarily by the company when

it is solvent. When a company is insolvent, its winding up could be initiated by the company

itself through court or by its' creditors-voluntarily or through court. It could also be initiated

by the Registrar General of Companies or by the Official Receiver of court/ Liquidator of

the company, under voluntary winding up or winding up under court supervision, when such

winding up cannot be continued with due regard to the interests of the creditors or

contributories.

The jurisdiction of winding up cases under the 1982 Companies Act was vested in the

District Court of the area where the Registered Office of the company was located. The

jurisdiction of new winding up cases however is vested in the Commercial High Court of

Colombo (High Court of the Western Province exercising civil Jurisdiction hold in

Colombo), under the new Companies Act No.07 of 2007.

A company may be wound up by the court, if— [Section 270 of the Companies Act

No.07 of 2007]-

(a) The company has by special resolution resolved that the company be wound up by the

court;

(b) The company does not commence its business within a year from its incorporation or

suspends it business for one year;

(c) If the number of the members falls below the minimum number required under

subsection (2) of section 4 of this Act;

(d) The company has no directors;

(e) The company is unable to pay its debts; or

2 Section 267 (1) of the Companies Act No.07 of 2007



146

(f) The court is of opinion that it is just and equitable that the company should be wound up.

A Director of a company who believes that the company is unable to pay its debts as they

fall due shall forthwith call for a Board Meeting to consider whether the Board should

apply to court for the winding up of the company and the appointment of a Liquidator or an

Administrator or carry on further business of the company, as required under Section 219 of

the Act. Therefore, when a company is making continuous losses and is unable to pay its

debts as they fall due, the company could adopt a Special Resolution for winding up in

compliance with Section 219 and make an application to court to wind up the company

under Section 270 of the Act. After an inquiry, if the court is satisfied with the application

and is of the opinion that it is just and equitable that the company should be wound up, it

will make the Winding up Order and appoint a Liquidator.

When a company is unable to pay its debts as they fall due, a creditor of the said company

could bring an application to wind up the company by court by proving the company‘s

inability to pay its debts. According to Section 271, a company‘s inability to pay its debt is

proved, when a creditor to whom the company owes a sum exceeding Rs.50, 000/= serves a

letter of demand in writing on the company, requiring the company to pay the sum due, and

the company fails to settle the said sum within three weeks from the date of serving such

letter of demand. Under these circumstances, a creditor could make an application to court

to wind up the company on the grounds that the company is unable to pay its debt, and the

court, after an inquiry, if satisfied with the application and is of the opinion that it is just and

equitable that the company should be wound up, will make the Winding up Order under

Section 270 of the Act and appoint a Liquidator as provided under Section 285.3

According to the Section 277 of the Act date of commencement of winding up by court is

the date of presentation of the Petition for Winding up in Court.

Court may appoint a Provisional Liquidator, on or after receiving the Petition for Winding

up filed either by the company or by a creditor, for the management and protection of the

assets owned by the company, until such time the court makes the Order on the application

for Winding up.4 The court may appoint a liquidator provisionally at any time after the

presentation of a winding up petition and before the making of a winding up order and either

the official receiver or any other fit person, may be so appointed. Where a liquidator is

provisionally appointed by the court, the court may limit and restrict his powers by the order

appointing him.5

3 ibid Section 272(1) 4 ibid Section 285 5 ibid Section 286



147

The liquidator in a winding up by the court shall have power, with the sanction

either of the court or of the committee of inspection6

(a) To bring or defend any action or other legal proceeding in the name and on behalf of the

company;

(b) To carry on the business of the company so far as may be necessary for the beneficial

winding up of such company;

(c) To appoint an attorney-at-law to assist him in the performance of his duties;

(d) To pay any classes of creditors in full;

(e) To make any compromise or arrangement with creditors or persons claiming to be

creditors or having or alleging themselves to have any claim, present or future, certain or

contingent, ascertained or sounding only in damages against the company or whereby the

company may be rendered liable;

(f) To compromise all calls and liabilities to calls, debts, and liabilities capable of resulting

in debts and all claims, present or future, certain or contingent, ascertained or sounding only

in damages, subsisting or alleged to subsist between the company and a contributory or

alleged contributory or other debtor or person apprehending liability to the company, and all

questions in any way relating to or affecting the assets or the winding up of the company, on

such terms as may be agreed and take any security for the discharge of any such call, debt,

liability or claim and give a complete discharge in respect thereof.

According to Section 292[2] of the Companies Act No.07 of 2007 the Liquidator in

a winding up by the court shall have power:-

(a) To sell the movable and immovable property and things in action of the company by

public auction or private contract, with power to transfer the whole thereof to any person or

company or to sell the same in parcels;

(b) To do all acts and to execute in the name and on behalf of the company, all deeds,

receipts, and other documents and for that purpose to use when necessary, the seal of the

company, if any;

(c) To prove, rank and claim in the bankruptcy, insolvency or sequestration of any

contributory for any balance against his estate, and to receive dividends in the bankruptcy,

insolvency or sequestration in respect of that balance as a separate debt due from the

bankrupt or insolvent, and rateably with the other separate creditors;

6 ibid Section 292[1]



148

(d) To draw, accept, make and endorse any bills of exchange or promissory note or like

instruments in the name and on behalf of the company, with the same effect with respect to

the liability of the company as if the bill or note or such instrument had been drawn,

accepted, made, or endorsed by or on behalf of the company in the course of its business;

(e) To raise on the security of the assets of the company any money required;

(f) To take out in his official name letters of administration to any deceased contributory,

and to do in his official name any other act necessary for obtaining payment of any money

due from a contributory or his estate which cannot be conveniently done in the name of the

company, and 230 Companies Act, No. 07 of 2007 in all such cases the money due shall, for

the purpose of enabling the liquidator to take out the letters of administration or recover the

money, be deemed to be due to the liquidator himself : Provided that nothing herein

empowered shall be deemed to affect the rights, duties, and privileges of the Public Trustee

appointed under the Public Trustee Ordinance (Cap. 88);

(g) To appoint an agent to do any business on behalf of such liquidator;

(h) To do all such other things as may be necessary for Winding up the affairs of the

company and distributing its assets.

Some of the main consequences of the Winding up Order are given below:

Action stayed in winding up:

According to Section 279(1), when a Winding up Order is made or a Provisional Liquidator

is appointed by court, no action or proceeding shall be proceeded with or commenced

against the company except by leave of court, and subject to such terms as the court may

impose.

Section 279(2) states that the execution process or attachment against any property owned

by the company, by or for the benefit of a creditor who is entitled to a duly registered charge

against such property, will not be affected by the said provision under Section 279(1).

Avoidance of disposition:

Any disposition of company property, including things in action, transfer of shares etc., after

the commencement of the winding up, shall be void unless the court orders otherwise as

provided under Section 275.

Where a company is being wound up by court, any attachment or sequestration or execution



149

enforced after the commencement of winding up (the date of presentation of the Petition for

Winding up), shall be void under Section 276. However, the execution process or

attachment of a property by a creditor who is entitled to a registered charge over the said

property is exempted under Section 276(2).

Restriction of rights of a creditor as to execution or attachment

Where a creditor has issued an execution against the goods or land of a company or has

attached any debt due to the company, and the company is subsequently wound up, he shall

not be entitled to the benefit of such execution or attachment unless he has completed

according to Section 378.

Custody of company property

According to Section 290 where a Winding up Order has been made or a Provisional

Liquidator has been appointed by court, the Liquidator or the Provisional Liquidator shall

take into his custody or under his control, all the property and the things in action which are

owned by the company or appears to be entitled to the company.

All persons, including the bankers, officers and agents of the company, shall deliver the

money or any property of the company held by them, forthwith or within a specified period,

as directed by court, to the Liquidator. It shall be a criminal offence if any such person

refuses to hand over the company property to the Liquidator.

Power of Court to order repayment of money and return of company property7

On an application made by a creditor, the Liquidator or a shareholder, the court may order

under Section 376, any Promoter or any past or present Director, Manager, Liquidator or

Receiver of the company, who has misapplied or retained or become liable or accountable

for any money or property of the company, or is guilty of negligence, default, or breach of

duty or trust in relation to the company, after an inquiry on such person‘s conduct,

a. To pay or restore the money or property or any part of it with interest, or

b. To contribute such sum to the assets of the company as compensation, or

c. In case of an application made by a creditor, to pay or transfer money or property or any

part of it with interest, to that creditor.

These provisions enable any unsettled creditor of a company under winding up, to recover

his claim from the Directors of the company who carried on the business under the said

circumstances.

7 ibid Section 376



150

According to Section 365, the net realization of all unencumbered assets (which are not

subject to any charge/ mortgage) shall first be applied to settle the preferential claims in the

order of priority as specified in the 9th Schedule of the Act No. 07 of 2007.

As per the 9th Schedule, the Liquidator‘s costs and fees rank 1st among the preferential

claims, in addition to the reasonable costs incurred by the person who applies to court for

winding up and the actual costs incurred by the Liquidation Committee8

After settling the above claims, the Liquidator shall pay the following claims:

i. EPF, ETF and gratuity dues of any employee

ii. Income Tax charged or chargeable for any one complete year prior to the commencement

of the winding up, as selected by the Commissioner General of Inland Revenue,

iii. Turnover Tax charged or chargeable for one complete year prior to the commencement

of the winding up

iv. VAT charged or chargeable for four taxable periods prior to the commencement of the

winding up, as selected by the Commissioner General of Inland Revenue

v. All rates or taxes (other than income tax) due from the company within a period of 12

months prior to the commencement of the winding up

vi. All dues to the Government as recurring payments for any service given or rendered

periodically (electricity, water supply etc.)

vii. Industrial court awards and other statutory dues payable to employees

viii. Unpaid salaries or wages of employees for the services rendered to the company during

the last four months immediately preceding the commencement of the winding up

ix. Holiday pay payable to any employee

x. Any liability for compensation accrued prior to the commencement of the winding up

under the Workmen‘s Compensation Ordinance

All other claims, including the unsettled balance due to the secured creditors and the

Commissioner General of Inland Revenue on account of Income Tax and VAT, and the

balance Turnover Tax, Rates and other taxes payable, are treated as unsecured claims. They

rank equally among themselves and are settled in equal proportions, depending on the

availability of funds on net asset realization, after settling the secured and preferential

claims.

8 ibid Section 365[2]



151

Where the affairs of a company have been completely wound up, the court shall where the

liquidator makes an application in that behalf make an order that the company be dissolved

from the date of such order and the company shall be dissolved accordingly.9

Voluntary Winding up

As per the provisions in Section 319[1] of the Companies Act a company may be wound up

voluntarily:-

(a) When the period if any, fixed for the duration of the company by the articles expires or

the event if any, occurs on the occurrence of which the articles provide that the company is

to be dissolved, and the company at a general meeting has passed a resolution requiring the

company to be wound up voluntarily;

(b) Where the company resolves by special resolution that the company be wound up

voluntarily;

(c) Where the company resolves by special resolution to the effect that it cannot by reason of

its liabilities continue its business and that it is advisable to wind up.

When the company has passed a resolution for voluntary winding up, it shall within fourteen

days from the date of the passing of the resolution, give notice of the resolution by

publication in the Gazette.

A voluntary winding up shall be deemed to commence at the time of the passing of the

resolution for voluntary winding up. The provisions of sections 343 to 350 (both inclusive)

shall apply to every voluntary winding up, whether a shareholders‘ or a creditors‘ winding

up.

Winding up subject to supervision of court

When a company has passed a resolution for voluntary winding up, the court may make an

order that the voluntary winding up shall continue but subject to such supervision of the

court, and with such liberty for creditors, contributories or others to apply to the court, and

generally on such terms and conditions as the court thinks just.10

Rules and regulations governed the Winding up Law in Sri Lanka are the Company Winding

up Rules in 1939. These rules are still valid and in force, even the Companies Act had been

amended and repealed many times.

9 ibid Section 316[1] 10 ibid Section 351



152

Weaknesses in winding up law & rules in Sri Lanka

Sri Lanka has a fairly well-developed legal and judicial system. In some areas of the

corporate sector, its legal framework is rather modern and sophisticated. Over the past

twenty years, the legal framework has been regularly updated, and a host of new

amendments have been passed. Though this framework provides an adequate foundation for

a modern financial system, it suffers from a number of weaknesses affecting most

developing countries such as antiquated concepts, absence of laws for new developments,

and unconsolidated and overlapping laws.

In Sri Lanka, the legal framework for commercial insolvency provides only for liquidation;

there are no provisions in the laws for re-organization of businesses or companies. Therefore

some argues that the winding up law of companies in Sri Lanka is outdated and inefficient.

The liquidation of companies is a long drawn-out affair with no significant return from

assets to the stakeholders. It takes years to obtain statements of affairs, books of account,

realization of debts and sales of assets, distribution of assets to creditors, etc. before a

company is finally dissolved with the sanction of the court.

In the process, substantial corporate assets remain unrealized and undistributed. The

inordinate delay in proceedings mars the potential for the productive and rapid use of

dormant assets throughout the country. The key features of a sound insolvency system are

absent, and no material aspects of the law and process are observed. The law does respond

to the needs of modern industry. The process of seizure of assets is cumbersome. The

absence of effective tools and instruments to supervise and manage the insolvency process

renders the liquidation process an insignificant part of market dynamics. For instance in Sri

Lanka Company winding up rules are still governed by the company winding up rules of

1939, whereas the Companies Act had been amended, repealed and replaced by new acts in

1982 and 2007.

In Sri Lanka there are some provisions for compromise and schemes of arrangement under

companies act, but they are neither directed at nor facilitate the rehabilitation of companies.

For instance:

Provisions in respect of appointing an administrator11

Creditors do not use these provisions for restructuring debts or settling dues with debtors. A

compromise or arrangement can be proposed between a company and its creditors, or

between the company and its members, or between the company and both its creditors and

members. If a majority, representing three-fourths of the value of the creditors or members,

agrees to a compromise or arrangement, the compromise or arrangement will, if sanctioned

11 ibid Section 401



153

by the court, be binding on creditors, the members, and the liquidator. A court order

sanctioning the compromise or arrangement is only effective once it is registered with the

Registrar of Companies. Efforts to restructure banks have been made by adopting special

initiatives from time to time.

There is little use of the provisions for arrangements and amalgamations to rescue

businesses and undertake restructurings under the Companies Act No.07 of 2007 in Sri

Lanka. Under the current provisions of winding up law, there is little opportunity to preserve

the business as a going concern to maximize value and enhance recovery for creditors.

Generally, compromises and arrangements are used mainly for mergers and acquisitions,

and not for restructurings. The non-availability of a restructuring law in Sri Lanka does not

provide an option for banks to explore in the turnaround of businesses that face difficulties.

A successful restructuring system in Sri Lanka can result in assets remaining a part of the

economic system and that restructuring enhances returns on assets; there is, therefore, a need

for a restructuring law in Sri Lanka in respect of current provisions in winding up law under

the Companies Act No.07 of 2007.

An efficient insolvency system requires the bodies responsible for regulating or supervising

insolvency administrators to be independent of individual administrators. They should set

standards that reflect the requirements of legislation and public expectations of fairness,

impartiality, transparency and accountability. Insolvency administrators should be

competent to exercise the powers given to them and should act with integrity, impartiality

and independence.

In Sri Lanka, no developed regulatory framework is available, nor is there a supervisory

body responsible for regulating the conduct of official receivers and liquidators. This role is

left to the courts, which oversee the liquidation process. The registrar of companies has

some control over the liquidator. The liquidator is required to submit audited accounts to the

registrar of companies. The registrar can monitor the liquidator and, where a liquidator does

not perform his duties and duly observe the requirements imposed on him, or if any

complaint is made to the registrar by any creditor or contributory, the registrar can inquire

into the matter and, if necessary, report to the court under the provisions of the Companies

Act. The liquidator can obtain release from the court only if he satisfies the court by filing a

final report confirming the disposal of assets, distribution of sales proceeds and the status of

settled and unsettled claims.

The office of the Registrar of Companies lacks the capacity to administer the official

receivers and the liquidation process. They are not exposed to any education and training

and are not schooled in best practices. However, their integrity, impartiality and

independence are not in doubt. There is a need to create a specialized insolvency

administration office that would be responsible for administering the liquidation process and

overseeing the liquidator‘s functions.



154

Although the lack of resources and infrastructure is a constraint, Sri Lanka has a well-

regarded court system. The creation of the Commercial High Court has improved the

situation in the area of insolvency law, but delays in the disposal of cases and appeals are

common. The judiciary in Sri Lanka is fairly independent and impartial. The judges are held

in high esteem in society and are under constant pressure to maintain transparency in

imparting justice. Even though judges are highly regarded, the insolvency rules and

regulations may not be firm, thus allowing for the potentially unfair exercise of discretion.

There are no specialized bankruptcy courts in Sri Lanka. Under the Companies Act No 17 of

1982, the district court, within whose jurisdiction the registered office of the company is

situated, has the jurisdiction, among other things, to make orders in respect of winding up,

amalgamation and compromises. A district court is a court of general jurisdiction, with

unlimited civil jurisdiction in all civil, revenue, family, insolvency (of natural persons) and

testamentary matters. In present context Commercial High Court [Which established mainly

for commercial litigation] has the exclusive jurisdiction to hear and determines company

liquidation matters under the provisions of Act No.07 of 2007, but the absence of a

specialized bankruptcy court and effective tools to supervise and manage the insolvency

process makes the whole liquidation process an insignificant part of market dynamics.

Presently, winding up cases are heard by the Commercial High Court in Colombo12

, as most

winding-up cases take place there. Most of the judges do not have sufficient exposure to

commercial law. Lack of facilities and insufficient competent staff affect the insolvency

process. No established standards exist for evaluating the performance of the commercial

courts and the judges that supervise the liquidation process. The quality of judges can be

enhanced by providing for transparent, predictable and efficient rules of procedure that leave

little room for corruption. The company court rules that govern the liquidation process

require review to incorporate modern practices.

Need of a corporate rescue culture in Sri Lanka

The defining characteristic of insolvency law is therefore the imposition of a collective

approach to the way in which a debtor‘s assets are realized and in which they are distributed

to claimants against the debtor. Corporate rescue mechanisms are not intended to maintain

inefficient firms that are not economically viable, or to protect debtors from creditors except

for time-limited and short periods to facilitate the orderly restructuring of the corporate

entity and/or its business.

In simple terms; taking some action to continue to carry on business and eventually extricate

the Companies from their financial problems - commonly referred to as Corporate Rescue -

is one of the important matters which attract the attention of every government. All

companies cannot be rescued. First, there are those which enter some process in order to see

12 ibid Section 529



155

if rescue is possible but they continue to fall deeper into debt or simply cannot make any

headway and meet their responsibilities under terms of any rescue package.

The desire to encourage the enterprise culture by promoting the corporate rescue has

culminated in a number of legal reforms being made to the law of insolvency in a few

countries. For example, as discussed in the chapter 4 of this thesis in Singapore, scheme of

arrangements has been introduced by Companies Act [Chapter 50]13

with the objective of

furthering timely rescue of ailing corporate entities. It was designed to strengthen the

foundations of an enterprise economy by establishing an insolvency regime that encourages

honest but unsuccessful entrepreneurs to persevere despite initial failure. In other words, the

aim was to promote a culture in which companies that could be rescued were, in fact,

rescued.

Traditionally, Sri Lanka‘s insolvency procedures which also followed the English system

were considered to be ‗creditor wealth maximization‘ processes, and were seen as methods

of obtaining the best possible returns for creditors. In attempting to achieve this end, our

system, like the English system, has narrowly focused on the interests of creditors, mainly

secured creditors, and ignored the interests of other important stakeholders, such as

shareholders and employees.

Under the law prior to 2007 there was no adequate legal procedure to facilitate the rescue

and rehabilitation of companies experiencing financial difficulties. Instead, a company in

financial trouble was generally subject to the process of winding up. However, when Sri

Lanka enacted the new Companies Act in 2007 a simplified procedure for administration

was introduced enabling the Board of Directors of the company concerned to resolve to

appoint an Administrator without an order of Court but subject to creditors‘ approval within

two weeks.14

The Commercial High Court has been vested with jurisdiction to intervene

only if a creditor or shareholder of the company seeks relief to protect his interests during

the period of administration. At the same time a salutary provision has been included in the

Act in that the Administrator can seek the assistance and guidance of Court by obtaining

directions in relation to any matter arising in connection with the carrying out of his

functions.

An administrator should within ten working days of being appointed, send a written notice

to all creditors of the company so far as he is aware of their addresses:-15

(a) Advising them of the appointment of an administrator; and

(b) Calling a meeting of creditors to consider whether the appointment should be confirmed.

13 Part VII ARRANGEMENTS, RECONSTRUCTIONS AND AMALGAMATIONS 14 Section 401 of the Companies Act No.07 of 2007 15 ibid Section 404 (1)

http://statutes.agc.gov.sg/aol/search/display/view.w3p;ident=3f4db12e-4717-4fef-8a86-a59aa2c77602;page=0;query=CompId%3A3854ad7b-fcbf-4768-9305-0b3095d14559;rec=0#P1VII-.



156

Where no meeting of creditors is held before the expiry of the initial period the administrator

shall cease to hold office at the expiry of that period16

Where a meeting of creditors under this section does not confirm the appointment of the

administrator, the administrator shall cease to hold office with effect from the close of the

meeting17

Where a meeting of creditors under this section confirms the appointment of the

administrator, the administrator will continue in office and should prepare proposals in

accordance with the provisions of the Act.18

During the period for which an administrator holds office after the expiry of the initial

period:-19

(a) No resolution may be passed or order made for the winding up of the company;

(b) No receiver of the property of the company may be appointed;

(c) No other steps may be taken to enforce any security over any property of the company or

to re-possess any goods in the company‘s use or possession under any hire-purchase

agreement, except with:-

(i) The consent of the administrator; or

(ii) The leave of the court and subject to such terms as the court may impose;

(d) No other proceedings and no execution or other legal process may be commenced or

continued and no distress may be levied against the company or its property, except with:-

(i) The consent of the administrator; or

(ii) The leave of the court and subject to such terms as the court may impose;

However, such consent of the administrator or the leave of the court is not required for:-

(a) Filing a petition to wind up the company; or

16 ibid Section 404 (2) 17 ibid Section 404 (3) 18 ibid Section 404 (4) 19 ibid Section 405



157

(b) Giving notice in relation to a default under a charge over property of the company or

under an agreement relating to property in the use, possession, or occupation of the

company.

Administrator‟s Proposals

Within two months after the end of the initial period or such longer period as the court may

allow, the administrator should prepare a statement of his proposals for achieving the

purpose or purposes specified in the order appointing him20

Powers of Administrator21

(a) An administrator:-

i. Should manage the affairs, business and property of the company;

ii. May do all such things as may be necessary or desirable for the management of the

affairs, business and property of the company;

iii. Without limiting the powers specified in paragraphs (a) and (b), shall have all the powers

that could be exercised by a receiver of the whole of the property and undertaking of the

company under sections 443, 445 and 446.

(b) The administrator may apply to the court for directions in relation to any matter arising

in connection with the carrying out of his functions.

(c) Where the exercise of any power conferred on the company or its board or officers by

this Act or by the company‘s articles could interfere with the exercise by the administrator

of his powers, such power should not be exercised by the company, its board or officers, as

the case may be, except with the consent of the administrator, which may be given generally

or in relation to particular cases.

(d) Without limiting the generality of (c) above any disposal or other dealing with the

property of the company without first obtaining the consent of the administrator, which may

be given generally or in relation to particular cases, shall unless the court otherwise orders,

be void.

(e) In exercising his powers the administrator is deemed to act as the company‘s agent and a

person dealing with the administrator in good faith and for value, should not be required to

inquire whether the administrator is acting within his powers.

20 ibid Section 406 21 ibid Section 416



158

The creditors or shareholders of the company can apply to court and obtain order to protect

the interests during any time at which the administrator holds office under the provisions of

Section 425.

It is relevant to refer to a few other provisions in the Act which assist the corporate rescue.

These provisions include compromises with creditors, arrangements and amalgamations.

A Company trying to avoid winding up could attempt to enter into an informal arrangement

with its creditors, but the chances of such an agreement being successful is precarious. A

formal scheme of arrangement has long been possible with the sanction of the Court.

This type of arrangement may be useful to a Company in financial trouble but due to its

being procedurally complex and expensive it has only really been available to large

undertakings.

However, the new Companies Act No. 7 of 2007 also does not adequately deal with

restructuring of Companies or business recovery. Administration only applies to companies

and was originally intended to provide a breathing space for the company free from hassle

from its creditors. The idea was to allow the company a set period of time to try to get its act

together and come up with a plan for its rescue or at least a beneficial disposal of its assets.

Administration has, as its origins, the idea that the imposition of a professional to manage a

company‘s business can lead to the business being turned around and saved.

Business Recovery and Insolvency Practitioners‘ Association of Sri Lanka which is the Sri

Lanka Chapter of the global organization INSOL) has been advocating the enactment of

suitable legislation in Sri Lanka for corporate turn-around and insolvency in line with the

current legislation of other developed jurisdictions.

Therefore, Business Recovery and Insolvency Practitioners‘ Association of Sri Lanka has

submitted an amendment by way of an additional new Part XIIIA for Revival and

rehabilitation of Companies, [aforesaid draft described in the Appendix hereto] which is

to empower the Commercial High Court to entertain applications to consider and approve a

scheme for Revival and Rehabilitation of the company on application made by the Board of

Directors of the Company and at the same time giving an option for the Registrar-General of

Companies, a creditor or a shareholder to make such an application if such applicant has

satisfied the Court that the Board of Directors should have made the application as the

company is or is likely to become unable to pay its debts as they fall due and or the net

assets of the company are less than half of the Stated Capital of the company and can be

revived and rehabilitated. This proposed amendment to the Companies Act No.07 of 2007

has not been enacted and passed as a piece of legislation yet.

This draft prepared by Business Recovery and Insolvency Practitioners‘ Association of Sri



159

Lanka is now before the Authorities and it is hoped that the new legislation will pave the

way for a meaningful corporate rescue in Sri Lanka. The Executive Committee of Business

Recovery and Insolvency Practitioners‘ Association of Sri Lanka has recently appealed to

the Government to give speedy attention to the proposed amendment and its‘ enactment

thereof. Therefore it is a must to have a specific legislation in respect of Corporate Rescue

and Restructuring in Sri Lanka in the present context.

Conclusion

The Companies Act No. 7 of 2007 marks a significant milestone in the development of

company law in Sri Lanka. Many of its features are improvements to what existed

previously. This is particularly true in respect of what has been introduced in relation to the

treatment of capital, directors duties and stakeholders rights. However, at the same time

there are certain features in the law that could be cause for concern and therefore would

deserve further development especially in areas such as winding up, liquidation and

corporate rescue and restructuring.

Provisions for arrangements to rescue businesses and undertake restructurings have to be

introduced to the Companies Act No.07 of 2007 in Sri Lanka. The availability of a

restructuring law in Sri Lanka will provide an option to turnaround of businesses that face

difficulties.

The office of the Registrar of Companies has to be enhanced by education and training to

create a specialized insolvency administration office that would be responsible for

administering the liquidation process and overseeing the liquidator‘s functions.

Specialized bankruptcy courts have to be introduced to the judicial system in Sri Lanka to

increase the effectiveness in supervision and management of the insolvency process. This

kind of arrangement will makes the whole liquidation process a significant part of market

dynamics. There is a need for training, continuous education and greater interaction of

judges with insolvency experts to hear and determine cases in these kind of specialized

bankruptcy courts.

There is also a need of the recognition of the concept of insolvency practitioners and

suggested effective engagement of professions in the insolvency process to maximize

resource use and the application of skills. The better option will be an introduction of

professional education such as Chartered Insolvency and Restructuring Professional22

to

Sri Lanka.

22 The Canadian Association of Insolvency and Restructuring Professionals (CAIRP)



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Further, the draft prepared by Business Recovery and Insolvency Practitioners‘ Association

of Sri Lanka as an amendment by way of an additional new Part for Revival and

rehabilitation of Companies has to be enacted and implemented without much delay. The

Government must give speedy attention to the proposed amendment and its‘ enactment,

which will pave the way for a meaningful corporate rescue in Sri Lanka.

These changes will have to be recognized, acknowledged and addressed appropriately.

Certain measures would necessarily have to be in the form of amendments to the Companies

Act No.07 of 2007. Additionally, several measures will be required to harmonize the various

regulations, such as the rules of the Stock Exchange and the Central Bank, with the

provisions of the Companies Act. Also, there is a need for more creative and commercial

approaches to corporate entities in financial distress, and greater efforts to revive them rather

than applying the more traditional and conservative approach of liquidation or bankruptcy.

Freedom and justice cannot be parceled out in pieces to suit political convenience. I don't

believe you can stand for freedom for one group of people and deny it to others.

- Coretta Scott King

http://www.brainyquote.com/quotes/quotes/c/corettasco401224.html?src=t_justice

http://www.brainyquote.com/quotes/quotes/c/corettasco401224.html?src=t_justice

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161

Art of Writing Judgments

LAW AND LITERATURE

Gayantha Hemachandra

LLB (Hons) (Colombo), LLM (Queensland)

District Judge Bandarawela

Introduction

Judgment is a decision made by a court in respect of the matter before it.1 They may be

interim (interlocutory), deciding a particular issue prior to the trial of the case; or final,

finally disposing of the case. In partition cases, there are interlocutory and final judgments.

Decree is a court order and it may be nisi or absolute depending on the nature of the case. In

divorce cases, after the judgment given dissolving the marriage, a decree nisi is entered and

on the expiration of the time period, it is made absolute.

Section 5 of the Civil Procedure Code (hereinafter referred as the CPC) interprets judgment

as a statement given by the Judge on the grounds of a decree or an order whereas decree is a

formal expression of adjudication upon any right claimed or defence set up in a civil court.

Writing judgments and decrees are governed by provisions of the Chapter XX of the CPC.2

The case law and legal literature have developed giving guidelines in writing judgments.

The Judgment is the final determination of the court at most instances and therefore, trial

Judges are required to follow relevant statutory provisions in the CPC, case law and

developed legal literature whenever handing down judgments. This paper intends to

examine both relevant case law and legal literature developed with regard to writing of

judgments. Identical provisions can be found in the Indian Civil Procedure Code governing

writing of judgments3 and this paper expects to look into the Indian case law as well.

1 Oxford Dictionary of law (6th ed, 2006) 296. 2 Civil Procedure Code (LK) ss 184- 188. 3 Sudipto Sarkar and V R Manohar, Code of Civil Procedure (11th ed , 2010)pp 1511- 1525.



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Requisites of Judgment

Section 187 of the CPC extensively deals with the requisites of writing judgments. It says

that a judgment shall contain a concise statement of the case, the points for determination,

the decision thereon, and the reasons for such decision. Therefore, judgments handing down

under the CPC should fulfill these requirements specifically stipulated in S.187 of the CPC.

It covers three main stages in a judgment, a concise statement of the case, the points for

determination and the decision, the reasons for such decisions.

Statement of the Case

Giving a brief and comprehensive statement of the case is the first requisite in writing a

judgment. It is expected that the trial judge should concisely state the facts of the case and

on the basis of that statement, subsequent requisites are duly followed. Comprehensive

statement of the case amounts to the window of opportunity that opens up for the trial Judge

to build up his arguments, decision and reasons for it, finally adjudicating rights of the

parties in the case.

In Cellular Operators Association of India v Union of India, the Indian Supreme Court held

that a judgment of a court or a tribunal should contain a concise statement of the case.

Omission of it is a reason for the appellate court to set aside the judgment.4 Concise

statement of the case cannot be based on grounds outside the pleadings.5

Some Judges have beautifully developed the ways of presenting the concise statements of

the cases; and Lord Denning‘s opening statements of the cases are considered best among

them. In Hinz v Berry,6 Lord Denning began the judgment in the following way.

It happened on 19 April 1964. It was bluebell- time in Kent. Mr. and Mrs.

Hinz had been married some ten years, and they had four children, all

aged nine and under. The youngest was one. Mrs. Hinz was a remarkable

woman. I addition to her own four, she was foster mother to four children.

To add to it, she was two months pregnant with her fifth child.

On this day they drove out in a Bedford Dormobile van from Tonbridge to

Canvey Island. They took all eight children with them. As they were

coming back they turned into a lay- by at Turnham to have a picnic tea.

The husband, Mr. Hinz, was at the back of the Dormobile making the tea.

Mrs. Hinz had taken Stephanie, her third child, aged three, across the

road to pick bluebells on the opposite side. There came along a Jaguar

car driven by Mr. Berry, out of control. A tyre had burst. The Jaguar

4 (2003) SC 899. 5 Trojan & Co v Nagappa (1953) SC 235. 6 (1970) 2 QB 40,42.



163

rushed into this lay- by and crashed into Mr. Hinz and the children. Mr.

Hinz was frightfully injured and died little later. Nearly all the children

were hurt. Blood was streaming from their heads. Mrs. Hinz, hearing the

crash, turned round and saw this disaster. She ran across the road and

did all she could. Her husband was beyond recall. But the children

recovered.

An action has been brought on her behalf and on behalf of the children for

damages against Mr. Berry, the defendant. ....

Lord Denning‘s opening statements arrests the attention of the reader.They borrow their

simplicity of the language from the American tradition. The use of continuous narrative in

which the facts and the law are woven together to form a story is both undemanding of the

reader and extremely effective.7 Lord Denning in ‗Family Story‘ explains his way of

approach to give a concise statement of the case:

I start my judgment, as it were, with a prologue- as the chorus does in one

of Shakespeare does- each with its scenes- drawn from real life. But I do it

by dividing my judgment up into main headings (corresponding to the

scenes)-each with a caption- so as to catch the eye. I draw the characters

as they truly are- using their real names- so that I never get them mixed

up. Never plaintiff or defendant, or appellant or respondent. In telling the

story, I set out the merits- I rely on them- I do not scorn them. Because the

merits go to show where justice lies.8

Lord Denning says that in giving judgment the Judge should not be cold and impassive,

impersonal and inhuman. He has criticized Judges who drily set out the pleadings: and the

orders already made, giving a detailed recital of facts, omitting nothing, relevant or

irrelevant.9 Lord Denning has in his most sarcastic and ironic manner referred those Judges

as ‗Heedless of hardship to one side or the other‘.10

As discussed above, it is the task for the trial Judge vested in terms of S.187 of the CPC to

give a brief and comprehensive statement of the case. On the basis of well structured and

outlined concise statement of the case, a trial Judge can discuss the points for determination,

the decision thereon, and the reasons for such decision. It should be pointed out that the

judgment including a concise statement of the case has specific but different audiences. First

it addresses the parties themselves, second, their legal teams, then, if an appeal is preferred

to the appellate courts.11

Therefore, giving a concise statement of the case at the opening of

the judgment is vital in writing judgments.

7 Andrew Goodman, How Judges Decide Cases: Reading, Writing and Analysing Judgments (2005) 112. 8 Lord Denning, Family Story (2nd ed, 1982) 207. 9 Ibid. 10 Ibid. 11 Goodman, above n 7, 55.



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Determination and Decision

If the parties are agreed as to the question of fact or law to be decided between them, they

may state the same in the form of an issue, when not in agreement, the court should proceed

to record the issues.12

Therefore, in civil cases, trial Judges have to identify issues for

determination. The judgment is often prepared after the trial, and discretion is given to the

trial Judge to amend the issues or frame additional issues in terms of s 149 of the CPC

before passing judgment. These statutory provisions gives a trial Judge wide discretion and

power to decide issues for the determination and decision thereon.

In Aziz Ahmed v I. A. Patel,13

the Court held that while pronouncing judgments the court

should apply its mind to the facts of the case and the points at issue, and give a reasoned

judgment thereon after duly evaluating the evidence adduced and after considering the

contentions of the parties. In Swaranlata v Harendra,14

the Court discussed that in a suit in

which the pleadings raised substantial issue of fact for trial, the trial court merely decreed

the claim without delivering a judgment and the High Court in appeal merely recorded the

plaintiff had sufficiently proved the case, it was held that there had been no real trial of

defendant‘s case. The Court was of the opinion that a judicial determination of a disputed

claim where substantial questions of law or fact arise is satisfactorily reached, only if it be

supported by the most cogent reasons that suggest themselves to the judge; a mere order

deciding the matter in dispute not supported by reasons is no judgment at all. It was held in

Kuldip & Co v Pratap that where in a judgment it is not apparent what the points for

determination are, there is no discussion of oral or documentary evidence on points in

controversy, the judgment does not fulfil the requirement of law.15

It is not necessary that

each and every argument made by the parties‘ counsel to be dealt with and decided in the

judgment. It is up to the trial Judge to see if the point has any merit or any relevance and

then only it will be dealt with.16

It was further held in Aziz Wani v Director that the

judgment, without discussion of issues raised by the parties, is not judgment in the eye of

law.17

In the light of the above cases, it is submitted that a judgment, consists with the points for

determination and the decision thereon, is well balanced and reasoned one in the eye of the

law. Therefore, a task is cast upon the trial Judge to apply his mind to the issues for

determination and the decision thereon in terms of s 187 of the CPC.

Some practical guidelines can be found how to identify the issues for determination and on

the basis of identified issues, how to reach decisions. It is recommended to have a formal

summary of the point or argument or a paragraph or section in which the argument is

12 Civil Procedure Code (LK) s 146(1)(2). 13 (1974) AP1 FB. 14 (1969) SC 1167. 15 (1959) A 505. 16 Amir Hasan v Dr. Harikishan (1996) AIHC 434, 435,(Raj). 17 (1971) J & K 67.



165

recapitulated. If the trial judge summarizes his points for determination, the decision for

each argument can easily be built up and identified.18

Reasons for Decision

It is a cardinal principle in justice that the reasons for the decision should be clearly given in

the judgment. It helps the loser to understand why he lost, and of course, the winner why he

won. If the losing party prefers an appeal, it will also help them to prepare their appeal and

argue accordingly, and appellate courts to decide merits in each party‘s arguments. In view

of this, the judgment without reasons for decision is bad in law and, in fact not a judgment in

the eyes of the parties concerned and the public in general.

A judgment of a court or tribunal should contain, inter alia reasons for its decisions; on

omission judgment would be set aside.19

In Kachekalyna v Kachivijaya the Court held that it

is imperative that all arguments must contain the reasons for the decision.20

Where in a

judgment it is not apparent what the points for determination are, there is no discussion of

oral or documentary evidence on points in controversy, nor is the conclusion that the

plaintiff‘s suit shall stand decreed supported by any reasoning whatsoever, the judgment

does not fulfil the requirements of law.21

In Rattah v Dallchand, the Court pointed that mere

reliance upon notes of arguments submitted by lawyers is not in consonance with law and

the court should give its reasons for the decision reached.22

In Kamat v K, the Court held that

where no reasons are given for the conclusion arrived at, they cannot be accepted as legal

finding of fact in second appeal.23

The trial Judge should give his reasons for decisions on

each and every point and argument. In Warnakula v Ramani Jayawardene,24

the Court said

that bare answers to issues without reasons are not in compliance with the requirement of

S.187 of the CPC. The evidence germane to each issue must be reviewed or examined. The

Judge must evaluate and consider the totality of the evidence of the parties and witnesses

and stating that he prefers to accept the evidence of one party without giving reasons are

insufficient, the Court further held. The Court held in Babun Appu v Seetin and other that

the trial Judge has been in compliance with S.187 of the CPC and addressed the issue of

prescription and given his reasons accordingly.25

In Neemabai v Gyanbi,26

the Court said

that a mere order deciding the matter in dispute not supported by reasons is no judgment at

all. The same view was expressed in Om Prakash v State of Himachal Pradesh and the

Court held that a judgment which does not contain reasons for the decision is not a judgment

in the eye of law.27

18 Goodman, above n 7,120. 19 Ibid 4. 20 11 WR 33 PC. 21 Kuldip & Co v Pratap (1959) A 505. 22 (1954) HYD 39. 23 8 B 368. 24 (1990) 1 SLLR 206. 25 (unreported, Court of Appeal, Sri Lanka, Gooneratne J, 21 November 2007) 26 (1993) AIR 193. 27 (2001) AIR 18.



166

Under Article 6 of the European Convention on Human Rights, all courts are now required

to give reasons for their rulings and judgments to demonstrate that a fair hearing has been

conducted by an independent and impartial tribunal. It is pointed that reasons have to be

given in plain language so that a party to a case, can understand what has happened and

why, demonstrate that the trial Judge has used a process of structured decision- making

rather than reached a decision arbitrarily. It shows that the losing party is more likely to

accept the judgment of the court and if challenged on appeal, assist the appellate court in

supporting where possible the conclusion of the court below.28

Judgments and Judicial Literacy Style

It is worthwhile to examine aspects about the judicial literacy style in judgment writing. The

language has become a well sharpened and handled tool at the hand of some great judges.

Their judgments have been considered distinctive and beautiful in giving well- constructed

and well- reasoned judgments. Much can be learned from the judicial literacy style from

those giants of juristic style, Benjamin Cardozo, Justice of the Supreme Court of the United

States 1932- 1938, Sir Own Dixon, Chief Justice of Australia 1952- 1964 and Lord Denning,

Lord of Appeal in Ordinary from 1957 and Master of the Rolls 1962- 1982. Each judge still

retains an immense following, respect and affection among both lawyers and brother judges

in their own jurisdictions and beyond.

Justice Cardozo used alliteration, antithesis, proverbs and maxims to give persuasive force

to a judgment. He formed his sentences to make his points either terse or sincere. Lord

Roger explains Justice Cardozo‘s literacy style thus:

He thought of an opinion as to „win its way‟. In other words, he saw his

opinions as being in a competitive struggle with other opinions on the same

topic. That would, I think, be natural for a judge in the United States with a vast

number of individual State systems, and, at the time when he wrote, a federal

system of common law. The law reporting system was well established and so

lawyers and judges had ready access to competing decisions from all over the

country. In that situation Cardozo rightly saw that, if attractive or somehow

arresting, the style in which he wrote might make his opinion, and hence the

doctrine which it contained, more persuasive to courts and practitioners. And

in this he was not wrong. Cardozo‟s opinions continue to be among those most

cited in America to this day.29

Sir Owen Dixon (1886-1972) who was an exceptionally distinguished Australian judge,

famous for his interpretation of the Australian constitution. He presided over the legal

system of the Australian Commonwealth at a time when there was a tension between

following English law and creating a domestic law shaped more by the American Model.

28 Goodman, above n 7, 10, 11. 29 Lord Roger, The Form and Language of Judicial Opinions (2002) 118 LQR 239-241.



167

His judgments are still followed and his judicial literacy style a live discussion among the

academics and the law students in the Australian Universities.

Andrew Goodman describes Lord Denning‘s way of handling the language in judgment

writing in his work on judgment writing.30

The distinctiveness of Lord Denning‟s technique came from his narrative style

constructed in short sentences which suggests to the reader he is delivering a

homily; he uses an almost child-like idealism when discussing legal principles,

and deliberately suppresses any over intellectualising. His aim was always to

do justice, rather than apply the law strictly, and he did not shrink from

undermining established doctrine that he found inconvenient in arriving at a

just solution to the problem. The simplicity of his style enabled his critics,

particularly in the House of Lords, to overturn many of his decisions.

The language in judgment demonstrates not only the linguistic skills of the trial judge but

also his school of thought and social values. Simplicity and neatness in handling the

language are required to be literacy qualities for judges.31

Conclusion

Section 187 of the CPC has set out a broad outline as to what the ideal judgment should be.

It covers the three main components in a judgment: a concise statement of the case, the

points for determination and the decision thereon and the reasons for such decision. This

paper discussed the case law and the literature developed on these areas. It shows that the

appellate courts and some jurists have shaped these areas with a view of building up a well-

structured, balanced and reasoned art of judgment writing.

It is submitted that the mandatory statutory provisions have now come into operation in

respect of the requisites of judgments. Not only the case law and legal literature, but also the

introduction of new legislation in many jurisdictions in the United States and Europe has

now shaped the art of judgment writing in compliance with universal idealisms such as fair

trial, right to appeal and balanced judiciary. If a judgment of a trial court reflects all the

requisites discussed above the judgment has contributed in one way or other to enhance

these universal ideals. Finally it gives its citizenry a reason to be proud of their judiciary.

A great burden has been put on the trial Judges to deliver ‗fair‘ judgments to the parties. The

winner as well as loser can understand what had happened in their case if the judgment is

delivered in compliance with s 187 of the CPC. If even one of the requisites in s 187 of the

CPC is missed, it is not a judgment in the eye of law. Therefore, it is submitted that

delivering judgments written with following all these time tested requisites paves the way

for a vibrant judiciary in this modern age of common law.

30 Above n 7,110,111. 31 Ibid.



168

Evaluation of Evidence

In a Criminal Trial

Nalinda Indatissa

Attorney-at-Law

Evaluation of evidence produced before a court of law is a sacred duty cast on a judicial

officer. It is a very difficult task where judicial officers will have to blend their experience

with their knowledge of men and matters. Over the years courts too have developed

guidelines or rules that will be applicable in assessing the credibility of witnesses. The tests

that are applicable in evaluating witnesses are as follows;

(1). Test of probability

1.1 Often Judges are called upon to consider whether a narration given by a

witness stands the test of probability. When a witness narrates an incident

the Judge will have to consider the totality of such witness‘s evidence and

see whether the incident would have happened in the manner witness

describes. Or the Judge would have to consider whether a particular

incident had happened in the manner the prosecution witness has testified

or in the manner defence has suggested and or in the manner the defence

witnesses have unraveled. In other words - which version is more probable?

In such a situation the court should accept the more probable version and

reject the less probable version.

1.2 However, it must be borne in mind that the more probable version might

sometimes be the untruthful version.

1.3 The experience of the judge with regard to the manner in which things

happen in the world, the manner in which different people react to

situations, the cultural background of the witness, the educational

background of the witness, the religious background of the witness are

some of the things that will be helpful to a judge to apply the test of

probability to the testimony of that particular witness.



169

1.4 In other words the judge has to be satisfied that the version of the witness is

not intrinsically improbable.

(2). Test of Consistency

2.1 This means whether the testimony of a witness is consistent from the

beginning of the investigation up to the end of the trial. The test of

consistency has many facets to it,

Consistency per-se 2.2 What is meant by consistency ―per-se‖ is that a witness has to be consistent

about material facts and or relevant facts throughout his testimony in court.

In other words a witness should not deviate or contradict his own evidence

given at the trial. Sometimes a witness, who describes an incident in one

way in the examination in chief, may materially contradict his own position

in cross examination, when he is subjected to intense drilling by the adverse

party. In such a situation if the witness‘s evidence is ―self-contradictory‖

and that too on vital or material matters it is unsafe to rely on such witness.

Consistency “inter-se”

2.3 Here, the entire testimony in a case must be taken together. For

example if the prosecutor relies on the evidence of two lay witnesses,

the evidence of a medical officer, evidence of a police officer, and the

evidence of a ballistic expert, all the evidence of prosecution witnesses

should match with each other. There should not be material

contradictions between the evidence of the two eye witnesses. The

testimony given by the eye witness should not contradict with the

medical evidence, ballistic experts‘ evidence and the investigating

officers‘ evidence.

2.4 For instance if in a murder case the two eye witnesses for the

prosecution testify that they saw an incident of shooting where the

accused came up to the deceased and fired at him at close range, the

medical officer‘s evidence too must corroborate that evidence by

confirming that he observed tattoo marks or blackening marks on the

body of the deceased which are consistent with a close range shot. If

the medical officer does not speak of blackening or tattoo marks on the

body of the deceased there would be a conflict between the evidence of

the eye witness and the medical evidence.

2.5 Similarly, if the eye witness states in his testimony that he saw the

deceased being shot at by the accused from a high elevation to that of

the deceased and if the angle of the entry wound on the deceased and

the exits wound does not tally with the lay witnesses‘ evidence it could

be reasonably concluded that there exists an inconsistency inter-se

between the evidence of the prosecution witnesses.



170

2.6 If there is inconsistency inter-se between witnesses in regard to

material particulars a Judge should exercise caution in accepting such

evidence.

2.7 If two witnesses‘ evidence tally with each other on material particulars

the court has to look in to their cross examinations carefully to see

whether they are independent and non-collusive witnesses. In the case

of such witnesses if collusion and deception can be ruled out they are

witnesses whose evidence can be acted upon.

2.8 However, even though the evidence of witnesses tally on material

particulars but a close and a minute agreement can be shown to exist

between the witnesses a suspicion of fraud and confederacy is

generated about their testimony which then necessitates the rejection of

such evidence.

2.9 It must be noted that the reason behind sending the witnesses for the

prosecution out of the court-house when one prosecution witness is

giving evidence is to prevent the other witnesses training themselves

for cross examination after listening to the cross examination of the

witness in the stand.

2.10 However, merely because two witnesses contradict each other it cannot

be said that one or the other of them is a false witness, because the

discrepancy could be accounted for otherwise. In evaluating

contradictions inter-se of two witnesses, the judge must bear in mind

and probe whether the said discrepancy is due to dishonesty or due to

defective memory or lack of power of observation (Bandaranayake v.

Jagathsena 1984 (2) SLR 397, Republic v. Perera , Colombo H/C

Case 243/84 B minutes dated 15.07.1991)

Contradiction between the testimony of a witness and the statements and depositions made by such witness regarding the same matter on other occasions

2.11 Another way of testing the credibility of a witness is to contradict the

testimony of a witness given in court with his previous statements

made to the police under section 110 of the Code of Criminal

Procedure Act no 15 of 1979 or with his previous depositions made in

the Magistrates Court. This is permitted under section 155(c) of the

Evidence Ordinance.

2.12 When highlighting a previous statement made by a witness which is

contradictory to his present testimony before court a Judge should be

mindful of sections 145(1) and 145(2) of the Evidence Ordinance.

2.13 Firstly, it is necessary to question the witness whether he/she made

such a statement. If the witness admits making of the statement,

making of the statement need not be proved further as section 420 of

the Code of Criminal Procedure Act would then apply.

2.14 However, if the witness denies making the statement the party cross

examining will have to later prove the making of the statement through

the investigating officer.

2.15 However, after questioning the witness whether he made a previous



171

statement, if he/she still denies making of the statement, attention of

the witness should be drawn to the contradictory portion of the

statement and he should be asked whether he made such a statement or

not. Even after the attention of the witness is drawn to the contents of

the previous statement which is contradictory to his present testimony,

if he denies the making of the statement , the contradictory portion

should be marked as a contradiction and such marking should be given

a number. In practice very often attorneys attempt to mark the entire

statement made by a witness in order to prove a contradiction. This is

the common practice though it grievously offends section 110(3) of the

Code of Criminal Procedure Act. Thus if non contradictory portions of

the statement too are permitted to be marked those portions would

sometimes corroborate the evidence given by that witness. Therefore, a

presiding Judge should be very vigilant when contradictions are sought

to be marked. They should be mindful only to permit the contradictory

portion in the statement to be marked as a contradiction and the rest

should be left out from the contradiction.

2.16 Furthermore, a judge should look at the evidence of the witness and the

statement of the witness and see for himself whether what is sought to

be marked is in fact a contradiction or whether it is in actual sense out

of the context as a contradiction.

2.17 It is also important for a trial Judge to check the original Information

Book extracts and find out whether the so called contradictory portion

recorded in the certified copy is correctly recorded as per what is

contained in the original Information Books. In our experience the

certified copies issued to the defence are sometimes inaccurate and

although there exists a contradiction as per the certified copy, in fact

there is no contradiction according to the original Information Book.

2.18 Once a contradiction is marked by the adverse party, the party calling

the witness should be permitted to re-examine the witness drawing the

attention of the witness to the contradiction and to give him (the

witness) an opportunity to explain the contradiction. Sometimes some

witnesses may satisfactorily explain vital contradictions. For example a

witness who had undergone immediate surgery after the incident may

not be in a position to give a statement like a normal person

witnessing an incident.

2.19 A witness need not be disbelieved merely because there is a

contradiction between her evidence and her previous statements made

touching the same issue.

2.20 Sometimes the contradictions are satisfactorily explained by the

witness.

What is a Vital Contradiction?

2.21 Sometimes the contradictions are not important contradictions on a material

point. (Boghi Bhai Hirji Bhai v. State of Gujarat A.I.R1983 S.C. 753



172

(para 5) Discrepancies that do not go the root of the matter and shake the

basic version of the witness cannot be given too much importance. If the

contradiction is an important one on a material point it will go to the root of

the evidence of the witness. Such a contradiction if it remains unexplained

the credibility of the witness is affected.

Things that a trial judge should bear in mind in evaluating a contradiction

2.22.1 By and large a witness cannot be expected to possess a photographic

memory and to recall the details of an incident. It is not as if a video tape

is replayed on the mental screen.

2. Ordinarily it so happens that a witness is overtaken by events. The witness

could not have anticipated the occurrence which so often has an element

of surprise. The mental faculties therefore cannot be expected to be

attentive to absorb the details.

3. The powers of observation differ from person to person. What one may

notice, another may not. An object or movement might emboss its image

on the person‘s mind, whereas it might go unnoticed on the part of

another.

4. By and large people cannot accurately recall a conversation and reproduce

the very words used by them or heard by them. They can only recall the

main purport of the conversation. It is unrealistic to expect a witness to be

a human tape recorder.

5. In regard to exact time of an incident, or the time duration of an

occurrence, usually, people make their estimates by guesswork on the spur

of the moment at the time of interrogation. And one cannot expect people

to make very precise or reliable estimates in such matters. Again, it

depends on the time sense of individuals which varies from person to

person.

6. Ordinarily a witness cannot be expected to recall accurately the sequence

of events which take place in rapid succession or in a short time span. A

witness is liable to get confused, or mixed up when interrogated later on.

7. A witness, though wholly truthful, is liable to be overawed by the court

atmosphere and the piercing cross-examination made by counsel and out

of nervousness mix up facts, gets confused regarding sequence of events,

or fills up details from imagination on the spur of the moment. The sub-

conscious mind of the witness sometimes so operates on account of the

fear of looking foolish or being disbelieved though the witness is giving a

truthful and honest account of the occurrence witness by him- perhaps it is

a sort of psychological defence mechanism activated on the spur of the

moment.

2.23 Where prosecution witnesses contradicted their earlier police statements

on material points, and the contradiction suggest that the defence version

might be true, a legitimate doubt is cast on the truth of the prosecution



173

story. (Bhanjan Singh v. State of Punjab A.I.R 1977S.C 674)

2.24 Even if a prosecution calls a number of such weak witnesses one cannot

corroborate the other. (Mulluwa v. State of Madya Pradesh A.I.R. 1976

989 (para18)

2.25 What is the evidentiary value of a previous inconsistent statement?

It is important to note that a previous inconsistent statement is not

admissible to prove the fact in issue in a criminal case. It is admissible

only to cast a doubt on the credibility of the witness. (Rex v. White 1922

17 C.A.R. 60 at page 64) But it becomes evidence if the witness admits

the truth of the earlier statement.

What is an omission?

2.26 Omission is a fact a witness has testified in court , but had failed to

mention in his or hers previous police statement and other depositions.

2.27 If the omission is about a vital or an important matter, such omission too

would affect the credibility of the witness. For example a witness

testifying in court identifies the accused as the assailant on him. He also

states that the accused had been known to him for some time and that at

the time he made the police complaint he knew the name of the accused as

―Rex‖. However, it is noted that t the witness has not mentiond about a

person called ―Rex‖ assaulting the witness in his complaint. Such failure is

called an omission.

Can you mark omissions in Court?

2.28 Unlike a contradiction an omission cannot be marked. The reason being a

contradiction is available in black and white in the police statement or any

other statement, whereas the omission is not a thing that exists in the

statement.

How do you draw the attention of court to an omission?

2.29 Often lawyers of the present day attempt to mark omissions, which is a

wrong practice and a procedure. The attention of the court is drawn to an

omission by suggesting to the witness that ―what the witness has told the

court has not been stated by him to the police when he made the police

complaint‖.

2.30 If when the omission is suggested the witness admits the failure to

mention to the police what is mentioned by him in court, omission need

not be proved.

2.31 However, if the witness denies the omission, the party suggesting the

omission should call the person who recorded the witness‘s police

statement and prove the omission.



174

2.32 An omission on a material point too could affect the credibility of a

witness.

2.33 When omissions are suggested to a witness by a party cross examining a

witness, the party calling the witness could ask questions in re-

examination which could explain the reason for the omission.

2.34 An omission could take place due to the lapse on the part of the

investigator, to question the witness on material points at the time the

statement of the witness is recorded, or to due to the failure of the

investigator to take down all the material things that the witness has

spoken of at the time the complaint is recorded. In our experience when a

complainant makes a statement to the police some police officers tell the

complainant that some of things that he mentions are not necessary to be

mentioned .The police do this as they are inundated with work and

therefore want to discourage witnesses to make lengthy statements which

would mean more writing for them. But when the trial commences only

the complainant would realize that most of the things police have omitted

to write would be marked as omission in the case. So if the witness

explains the omissions in re-examination stating that he/she told the

matters that have been omitted in the police statement, but the police

officer did not record such matters stating they are irrelevant, then the

trial judge should consider the impact of the omission in his evaluation of

the evidence. . In other words whether such explanation by witness

satisfactorily explains the omission is a matter the trial judge should

consider.

2.35 When material omissions which go to the root of the credibility of the

witness are present the court must consider whether such omissions are

satisfactorily explained by the witness. If not, such witness‘s evidence

should be rejected by courts.

(3). Test of Spontaneity

3.1 The promptness in making a statement to the police soon after the incident

is a matter that should be taken in to consideration in the evaluation of a

particular witness. Belatedness in making a statement to police is a matter

which will affect the weight of the witness‘s evidence. The underlining

rationale being, that if a witness makes a prompt statement immediately

after an incident, he doesn‘t have time to get advice from outsiders in

regard to the manner in which the statement should be made. Thus, a

prompt statement would be a statement made by a witness of his own free

will. If the statement is made belatedly, generally it is viewed as a

statement made after getting proper legal advice or after planning his

strategy.

3.2 Whether a statement has been made promptly or not is a matter the court



175

will have to decide on the facts and circumstances of each case.

For example : A statement made to a police station four hours after an

incident of murder might not be considered belated if

the police station is situated about twenty kilometers

from the place of the incident, and if there is no regular

transport service between the place of the incident and

the police station. However if both the place of incident

and the police station are situated in close proximately a

delay of 4 hours is a serious delay which makes the

statement a belated statement.

Statements made about persons who went missing during

the 1988/1989 insurgency period even though made

after several months were not treated as belated as there

was no atmosphere in the country during 1988/1989 to

make complaints against police officers.

3.3 In some cases witnesses do not go to the police station to make a

complaint immediately after the incident because either the accused have

threatened them with death if they complain to police or the accused are

politicians of the area wielding power and having influence on the police.

In such circumstances witnesses make the police complaints only after the

suspects are arrested by police and when they realize police is taking

action against the suspects.

In a situation like that too if the witness gives that explanation in

explaining the delay the learned trial judge should consider such

explanation in his evaluation of the witness‘ evidence.

Sometimes the sole witness to an incident might receive injuries from an

incident and become unconscious. In such a situation a statement made

several days after he/she regains consciousness will not be treated as

belated.

In certain circumstances police investigators record statements at the place

of the incident when they visit the scene. Such notes are pasted in the

information book after the investigator returns to the police station. In

such situation sometimes the date of the statement and the date on which

the notes are pasted could differ. Therefore, the court has to be very

cautious in determining the date of the statement. It is always advisable to

examine the original Information Book in order to ascertain the actual date

of the statement.

3.4 Even if the statement is belated the witness should be given an opportunity

to explain the reason for the delay. If the explanation for the delay is

satisfactory, court should not reject such witness‘s evidence merely

because it is belated.

3.5 In some instances although the statement of a witness is belated where no

apparent reason can be alleged against the witness for false testimony or



176

animosity between the witness and the accused also cannot be shown the

courts have held that evidence of the witness should not be rejected merely

because it is belated. ( Pauline De Croos v. . The Queen 71 NLR 169.

(4). The test of interest and disinterestedness

4.1 Very often trial courts would encounter witnesses who are biased towards

one party to the litigation. Some witnesses have an enmity or an anger

against the accused developed over a period of time. It may well be that

the witness himself has had a fight with the accused before the incident in

issue in the case before court.

4.2 Some witnesses have a motive to falsely implicate the accused to a case. It

may well be that due to some monetary or any other benefit the particular

witness might derive by implicating the accused.

4.3 Some witnesses are very friendly with the prosecution witnesses and

therefore want to help them win the case.

4.4 All such witnesses are called interested witness and or biased witnesses. In

cross examination material about the witness‘ motive, anger/animosity,

friendship, interestedness might transpire.

4.5 In such situation court has to be very cautious in evaluating the evidence

of such witnesses. In most murder cases in Sri Lanka the deceased is

attacked by the assailants either when the deceased is at home or when he

is in his paddy field. In such a case one can only expect his family

members to be witnesses. In that case the testimony of a wife or child

should not be rejected merely because witness is a relation.. In such a case

court also should consider the evidence of tht particular witness along

with the evidence of other independent witnesses.

For example: A witness might testify that the assailant came to their

house and attacked their father with a knife. She further

testifies that the accused gave two blows with the knife.

This evidence could be corroborated by the medical

evidence which is independent evidence. The medical

officer could testify that the injuries found on the

deceased are consistent with those done with a knife.

Should there be corroboration of an interested witness?

4.6 In accepting the evidence of an interested witness there is no rule which

requires the court to look for corroboration. The evidence of an interested

witness should be scrutinized with a little care. After doing so if the court

is satisfied that the evidence of such witness has a ring of truth in it, it

could be relied upon even without corroboration. (Ishwari Prasad v..



177

Mohomed Isa A.I.R. (1963) S.C. 1728, Punjabrao v.. Mesharam A.I.R.

(1965) S.C. 1179)

4.7 Relationship by itself is not a ground to discredit the testimony of a

witness if it is otherwise found to be consistent and true (Sarawan Singh

v.. State of Punjab A.I.R. (1976) S.C. 2304)

4.8 Enmity by itself is also not a sufficient ground for rejecting the testimony

of a witness. (Ramankahai v.. State of Gujarat A.I.R. (1979) S.C. 1261

(para I) 4.9 However in appropriate cases the court can look for corroboration

although corroboration is not a must in the case of interested witnesses‘

evidence. Where the evidence of an interested witness is, neither wholly

reliable nor wholly unreliable (State Vs. Tula Ram A.I.R. (1960) All

585), where the witness appears to have exaggerated things (Vaikuntham

Chandrappa v.. State of Andhra Pradesh A.I.R. (1960) S.C. 1340),

Where there is corroboration in essential particulars by disinterested

persons, court could look for corroboration.

4.10 The weight of the evidence of interested witnesses may be affected by the

degree of their interest in the litigation (Hasker v.. Summers (1884) 10

V.I.R. (Eq) 204 Aust)

(5.) The test of demeanour

5.1 In early days evaluation of the demeanour and deportment of a witness has

been considered as an important test.

5.2 In short demeanour means anything which characterizes the witness‘

mode of giving evidence. Demeanour includes the witness‘ conduct,

manner, bearing, delivering and inflection.

Best says that in estimating the intention of a witness to narrate the truth,

one matter to be attended to is his manner and deportment in delivering his

testimony.

Starkie wrote:

―An over forward and hasty seal on the part of the witness, in giving

testimony which will benefit the party whose witness he is, his

exaggeration of circumstances, his reluctance in giving adverse evidence,

his slowness in answering, his evasive replies, his affectation of not hearing

or not understanding the question, for the purpose of gaining time to

consider the effect of his answer; precipitancy in answering, without

waiting to hear or to understand the nature of the question, his inability to

detail any circumstances wherein, if his testimony were untrue, he would

be open to contradiction, or his forwardness in minutely detailing those

where he knows contradiction to be impossible; an affectation of

indifference ,- are all to greater or less extent obvious marks of insincerity.

On the other hand, his promptness and frankness in answering questions



178

without regard to consequences, and especially his unhesitating readiness

in stating all the circumstances attending the transaction, by which he

opens a wide field for contradiction if his testimony be false, are, as well as

numerous others of a similar nature, strong internal indications of his

sincerity.‖1

5.3 The judge may record the demeanour of a witness in terms of section 173 of

the Criminal Procedure Code and Section 273(4) of Code Criminal

Procedure Act.

5.4 The Judge who hears the case has the advantage of witnessing the

demeanour of the witness for himself. The Appellate Courts are therefore

slow to interfere with the decisions of the lower Courts on questions of fact

or oral testimony as they do not have the advantage of seeing the demenour

of the witnesses.

5.5 In order to observe the demeanour of a witness a judge should be in a

detached position. If the judge takes part in the examination of the witness

he/she will not be in an independent position to observe the demeanour of a

witness. (Yuill v. Yuill (1944) 29 C.L.W. 97)

5.6 In the evaluation of the evidence of a witness the trial judge could refer to

the witness‘ demeanour too. However, in order to refer to the demeanour of

the witness in his evaluation it is necessary for the trial judge to record the

demenour of the witness when the trial is in progress.

(6). the Test of Deliberate Falsehood

6.1 This arises from the maxim ―falsus in uno falsus in omnibus” (what is false

in one is false in all). In other words when a witness utters a false statement

in regard to one matter, his entire testimony is affected by such falsehood.

Courts used to adopt the theory that credibility is indivisible.

6.2 However, the application of the above rule has been subjected to the

following conditions;

1) The maxim is dangerous and generally not valid or useful- It is

not a mandatory rule.

It is dangerous to apply the rule as a general rule. In countries like

India and Sri Lanka a witness should not be totally disbelieved

merely because he has uttered falsehood in regard one or more points.

There is always a falsehood on some points in the testimony of the

majority of the witnesses due to a fringe or embroidery to the story.

However, if it is truthful in the main such testimony should not be

rejected.



179

In the case of Ugar v. State of Bihar A.I.R (1965) S.C. 277 the

Indian Supreme Court has held that falsus in uno falsus in omnibus is

neither a sound rule of law nor a rule of practice, and that one hardly

comes across a witness whose evidence does not contain a grain of

untruth or at any rate exaggerations, embroideries or embellishments.

2) The main consideration is whether there is proved falsehood on a

material point.

Where a witness has lied on a material point, it is impossible for a

court to act on the other parts of the same witness‘s testimony.

(Chauharja Singh v. Bhuneshwari Prasad Pal 161 1 C 881 (p.c.)

When a witness gives false evidence on a material point, a judge must

be satisfied, before accepting other portions of his evidence as true,

that there are compelling reasons to do so, such as corroboration of

the evidence. (State v. Dawari Behera (1976) Cr.L.J.262)

3) If the false evidence is only an embellishment or on matters not

germane to the litigation or on immaterial points, the evidence

can be acted upon

If the evidence is rejected against one accused, the same evidence

cannot be generally used against another accused or to corroborate

another witness.

In the case of Banangi Kui v.. Emperor A.I.R (1942) P 321,

if a court disbelieves a witness, it cannot use his evidence to

corroborate another witness.

Same principle has been followed in Nalliahv. Herath 54 N.L.R 473

This principle has been discussed in the case of R v. Munidasa 58

N.L.R 180 C.C.A.

4) The court must sift the evidence and separate the truth from the

false, if possible.

The Court must always make every effort to disengage the truth from

the falsehood and sift the grain from the chaft rather than take the

easy course of rejecting the entire prosecution case merely because

there are some embellishments.

Abdul Ghani v.. State of Madya Pradesh A.I.R (1954) S.C. 31

It is only where the testimony of a witness is tainted to the core, the

falsehood and truth being inextricably intertwined that the court must

discard his evidence in toto. State of Uttar Pradesh v.. Shankar

A.I.R (1981) S.C 897 (para 32)



180

Please also refer,

i. Gadiris Appu v. The King (52 NLR 344

ii. Rex v. Vellasammy 63 NLR 265

iii. Queen v.. Julis 65 NLR 505

iv. Francis Appuhamy v.The Queen 68 NLR 437

(7). The Test of means of knowledge

Another important matter to be decided in the evaluation of the evidence of

a witness is whether the witness at the time in question had a means of

gaining correct information.

The party calling a witness should establish that the particular witness had

the means to acquire the knowledge that he is testifying on. The adverse

party too can challenge the means of knowledge and prove that the witness

is uttering false testimony.

(8). The character evidence of a witness

In most case when a witness testify in court on behalf of a particular party to

the litigation the adverse party will cross examine the witness and will try to

demolish the credibility of such witness. One of the tools that the adverse

party would employ is to bring out material about the character of the

witness.

However, what the judges must bear in mind is that merely because the

witness has previous convictions, and or a previous bad character it cannot

be held that the witness is an untruthful witness. Some witnesses who have

previous convictions are more reliable persons than ordinary witness.

But if the previous bad record is in connection with a case of giving false

evidence in court, or submission of a forged document to Court, the Court

should exercise caution when accepting the evidence of such witnesses.



181

Critique

Of the Concept of Dock Statement

In Sri Lanka

Sarath Jayamanne

Deputy Solicitor General,1

A careful examination of legal provisions in Sri Lanka reveals that the statute law of Sri

Lanka does not permit an accused in criminal proceedings to make a statement from the

dock. Yet throughout the years, the courts in Sri Lanka have recognized the practice of

making dock statements. Further, such statements are considered as ―evidence‖ and given

undisputed recognition in criminal proceedings. That itself shows the extent to which the

practice of making dock statements is embedded in the Sri Lankan legal culture. The

admission of such statements by the courts is considered to be lawful, proper and fair by the

legal fraternity. Thus it is highly relevant to engage in a critical analysis of the drawbacks of

this practice and to consider whether it should be retained and allowed to be continued in to

the future.

The objective of this paper is to consider whether the legislature or judge-

made law of Sri Lanka have recognized the practice of making dock statements, whether the

dock statement is relevant in terms of evidence and whether its admission would be contrary

to the scheme and principles of the Evidence Ordinance. It will also be examined whether

the jurisdictions which initially recognized the practice of making dock statements have

continued to recognize it or have abolished it. In addition, the advantages and disadvantages

of continuing the practice in Sri Lankan courts will be examined. Finally, the suggestions

that are proposed in this respect will be given.

The ways in which the accused can give his evidence at the

court

The popular view held by the Sri Lankan judges, lawyers and the law students

is that the presumption of innocence operates in favor of the accused. It could only be

rebutted by evidence led by the prosecution that would prove the guilt of the accused beyond

1 Lecturer (Law College), Hubert Humphrey Fellow (USA), M.Sc. in Criminology and Criminal Justice (Oxford),

B.Sc. in Applied Science (Sri Jayawardenapura), Diploma in Forensic Medicine ( Colombo).



182

reasonable doubt. Therefore, there would be no compulsion for accused to speak. He can

remain silent in the dock. After the case for the prosecution is over, if the judge considers

that sufficient evidence has been adduced against the accused, he would call for the defence.

It is to be understood that thereby the accused would not be compelled to break his silence in

any way whatsoever.

(1) The accused may choose to give evidence from the witness box. In this

situation, the accused may have chosen to give evidence upon oath from the

witness box. Here the counsel for the accused would conduct the

examination-in-chief and thereafter the counsel for the prosecution can cross-

examine him.

(2) The accused may choose to abstain from giving evidence from the witness

box. Instead, he may adduce evidence on his behalf through other witnesses.

In this situation, the accused is also allowed to give evidence from the witness

box. In both these situations, evidence will be given on oath and the counsel

for the accused would conduct the examination-in-chief.

(3) The accused may also choose to abstain from giving evidence from the

witness box or through witnesses on his behalf. Instead, he may simply

choose to make a statement from the dock. In this situation, the accused will

not be required to take an oath or an affirmation. The accused will neither be

subjected to examination-in-chief nor cross examination. The judge is also

prevented from questioning the accused while he is giving a statement from

the dock. The accused is not to be imposed with restrictions, conditions or

prohibitions in making his statement from the dock. Such a statement is

known as a statement from the dock.

(4) The accused may also choose to remain silent without resorting to any of the

options mentioned above.

Is there any legislative provision which facilitate the making

of a statement from the dock?

The previous paragraph discussed the options which are available for the accused

in adducing evidence on his behalf. Therefore it becomes necessary for us to examine

whether there are any legislative provisions that facilitate the making of a statement from the

dock.

(a) At the Magistrates Courts.



183

Once the case for the prosecution is over at the Non Summary inquiry at the

Magistrates Court, if the accused wishes to make a statement regarding the

charges leveled against him, it is the duty of the Magistrate to allow him to

proceed with it. Section 151 of the Code of Criminal Procedure Act No. 15 of

1979 has provided for such statement. Before the accused makes any

statement in answer to the charge, it will be the duty of the Magistrate to

inform the accused that the statement which he is going to make can be used

as evidence at his trial.

Thereafter the accused can make his statement. Since the accused will be

making his statement from the dock, it could be defined as a statement from

the dock. The accused will not be under oath and would not be subjected for

any questioning. This statement is also known as ―statutory statement‖.

According to section 219 of the Code, all statements of the accused recorded

in the course of the inquiry, if any, at the Magistrates Court shall be put and

read in evidence before the close of the case for the prosecution in High

Court.

After the case for the prosecution is over at the Summary trial, either the

accused himself can give evidence or he can adduce evidence through

witnesses for his behalf2

. Yet the provisions in the Code of Criminal

Procedure or Evidence Ordinance do not expressly state that the accused can

make a statement from the dock.

(b) At the High Court.

At the end of the case for the prosecution in a trial by judge without a jury at

the High Court, if the Judge considers that there are grounds for proceeding

with the trial he shall call upon the accused for his defence3.Yet according to

section 200(2), if the accused or his pleader announces his intention not to

adduce evidence, the prosecuting counsel may address the court for the

second time in support of his case for the purpose of summing up the

evidence against the accused. However, section 201(1) lays down if the

accused or his pleader announces his intention to adduce evidence, the

counsel for the defense should lead evidence for the defense. It would mean

that the evidence of the witnesses should be led by way of examination in

chief. In such a situation, the counsel for the prosecution may have the right

to cross-examine all the witnesses4.

In a Trial by Jury, once the case for the prosecution is over if the Judge

considers that there is sufficient evidence pointing to the conclusion that the

2 Section 184 Code of Criminal Procedure Act No. 15 of 1979 3 Section 200 4 Section 201(2)



184

accused has committed the offence, he shall ask the accused if he wishes to

produce evidence5. Yet this provision does not expressly state that the

accused has the right to make a statement from the dock. Section 221(1)

merely states that defense can call its witnesses and section 221(2) states that

the prosecuting counsel is entitled to cross-examine all the witnesses called

by the defence to testify on oath or affirmation.

After a careful consideration of the legal provisions relating to the Criminal Courts in

Sri Lanka, it is evident that although the making of a dock statement is expressly permitted

at the stage of Non Summary Inquiry, it is not permitted at any stage of the summary trial

either in the Magistrate Court or High Court.

In the absence of legislative provisions permitting the accused to make a statement

from the dock, it is of utmost importance that an examination should be made regarding the

rationale upon which such statements are being made.

The history of the right to make a statement from the dock

The Code of Criminal Procedure Act No. 15 of 1979 does not contain any

provision regarding dock statement. An examination of the Administration of Justice Law

No. 44 of 1973 (AJL), which had laid down the procedure in criminal cases during 1973 to

1978, did not contain any provision regarding dock statements. Statutory statements in

Magistrate ccourts did not arise as AJL did not have any provisions to have Non Summary

Inquiry. Therefore it becomes necessary for us to consider the provisions of the Code of

Criminal Procedure Act No. 15 of 1898 which was in force before the AJL came in to force.

Under section 155 of 1898 Code, after the case for the prosecution is closed in a non-

summary inquiry, if the accused wishes to make a statement from the dock, the Magistrate

should allow it. This was the same position under the AJL and under the Code of 1979.

Under the Code of 1898, the District Court had jurisdiction to try criminal cases and

therefore the Code specifies that a dock statement made by the accused at the Preliminary

Examination should be put and read in evidence before the close of the case for the

prosecution at the trial in District Court.

In addition, section 156(3) of the Code of 1898 stated that at the close of the

Non Summary Inquiry if the Magistrate is of the opinion that a prima facie case has been

made against the accused, he will be entitled to question the accused. Section 295(1) of the

Code stated that the Magistrate will question the accused in order to enable the accused

personally to explain any circumstances appearing in evidence against him. It is indeed a

very special situation where the Magistrate will be able to question the accused while he is

in the dock or in the witness box. Evidently this situation is very different to that of the

5 Section 220(2)



185

existing position. In addition the section stated that answers given by the accused to the

magistrate at the Non Summary Inquiry can be put in as evidence by the prosecution at the

subsequent trial.

The relevant provisions relating the District Courts which had jurisdiction to

try criminal cases stated that once the case for the prosecution is over, the trial judge has the

duty to explain to the accused regarding the salient and important evidence against him, if

the accused is not being represented by a lawyer. According to section 296(1) of the 1898

Code, in any event the accused is entitled to give evidence from the witness box at a

criminal trial at the court.

After considering the above provisions, it is evident that from 1898 onwards

the right to make a statement from the dock has not been expressly permitted by the

legislature, except at the stage of Non-Summary Inquiry.

The next step in this analysis would be to examine whether the Criminal

Procedure law in England, which was the foundation of Common Law, has recognized the

right to make a dock statement and if it has been recognized, under what circumstances it

was done.

The history of the right to make a dock statement in England

The history of the right to make a dock statement in England is important for

this survey since it would enable us to discover the root of this subject.

The evolution of the legal principles of administering justice could be traced

to the early 18th

and in the 19th

century. During the reign of the monarchy, confessions were

elicited from accused persons through methods of torture in ‗Star Chambers‘ which were

located either in palace or court room. Based on such confessions suspects were convicted

and punished. This practice was severely criticized by the jurists and the society. Thus,

important legal concepts were developed by eminent legal scholars in relation to various

issues in the criminal justice system. These concepts are being jealously guarded and applied

up to this day. One such concept is the right against self-incrimination.

The right against self-incrimination would mean that if the accused makes an

involuntary confession, it cannot form the basis of his conviction. It would also mean that

the accused should not be compelled to give evidence against him. Based on this concept,

distinguished legal scholars formed the view that the accused is not a competent witness on

his own behalf even if the accused wishes to give evidence from the witness box. Jurists

perceived a danger that the accused may implicate himself during the trial and it would

contravene principle of right against self-incrimination. Therefore a principle was developed

to the effect that an accused is incompetent witness even if he is willing to give evidence on



186

his own behalf at the trial. Thus he was prevented from giving evidence at the trial.

In addition, the accused had been deprived of legal representation in respect of

certain offences. The combination of the inability of the accused to give evidence on his

behalf and the denial of legal representation, pushed the accused to a very disadvantaged

position. Jurists perceived that the accused was prevented in every way from telling his side

of the story to the court.

As a mean of remedying this situation, the judiciary in England allowed the

accused to make a statement from the dock if he wishes so. Yet it was only recognized as a

practice at the Courts and has not given legislative recognition. It has thereafter evolved as

customary element in English legal procedure. This is the beginning of the enjoyment of our

right to make dock statement.

We shall consider circumstances under which the English Law allowed legal

representation and the impact of such principle had on the right to make dock statement. For

example, the enactment of the Prisoners' Counsel Act of 1836 in England provided the

provision that an accused charged with felony was entitled to retain a counsel. Thus it

seemed that one of the logical arguments for allowing an accused to make a dock statement,

has been removed. Therefore some argue that Courts should have prohibited the accused to

make a dock statement. While some judges have subscribed to this view, some judges have

not. Therefore we perceive an inconsistent approach of English courts in this regard.

Examination of series of judgments shows the varied opinions courts in England had on the

issue.

In R. vs. Boucher6 and R. vs. Beard

7 the accused was not allowed to make a

dock statement when he was represented by a counsel.

In R. vs. Mailings8 and R. vs. Walking

9 courts followed a contrary approach.

The accused was not allowed to make a dock statement even when he was not represented

by a counsel.

In R. vs. Rider10

the court has reverted back to the original position, in which

it was held that the accused was not allowed to make a dock statement if he is represented

by a counsel.

In R. vs. Dyer11

which was decided 6 years later, the accused was allowed to

make a dock statement even when he was represented by a counsel.

6 1837 8 C. & P. 142 7 1837 8 C. & P. 243 8 1838 8 C. & P. 242 9 1838 8 C. & P. 243 10 1838 8 C. & P. 539 11 1844 8 Cox. C. C. 113



187

In R. vs. Taylor12

which was decided 15 years later, the accused was not

allowed to make a dock statement when he is represented by a counsel.

In R. vs. Shimmings13

which was decided 23 years later, the accused was

allowed to make a dock statement even if he was represented by a counsel.

The Criminal Evidence Act of 1898 of England, conferred competence to the

accused to give evidence on his behalf and at the same time preserved the right of the

accused to make a dock statement. However, the Act did not specifically mention whether

the same right can be enjoyed or not if the accused had legal representation.

In this context we should also consider the cases decided after the Criminal

Evidence Act was passed. In R. vs. Pope14

decided in 1962 and R. vs. Sheriff15

decided in

1903 held that the accused was allowed to make a dock statement even when he is

represented by a counsel.

The English courts have also considered the weight that should be attached to

a dock statement. The Coleman's trial16

decided in 1878 held that the dock statement of the

accused did not have any value at all.

Between 1836 and 1898, when the accused did not have competence to give

evidence on his own behalf but had the right to legal representation, three cases have

considered the weight that should be attached to a dock statement. In R. vs. Beard17

, it was

held that the jury is entitled to consider the dock statement of the accused in reaching their

verdict. In R. Rider18

decided one year later the contrary approach was followed and it was

held that the dock statement cannot be considered at all.

In R. vs. Shimmings19

decided 44 years later it was held that the dock

statement is not entitled to receive the same weight as that of sworn evidence but the jury is

entitled to consider such statements in reaching its verdict.

In cases decided after 1898, when the accused had both competence to give

evidence for his behalf and the right to legal representation, we perceive a contradictory

approach of the courts in this regard.

In Shankley vs. Hodgson20

, the dock statement was denied of any value when

it was contradicted by sworn evidence.

12 1859 1 F & F. 535 13 1882 15 Cox C.C. 122 14 1962 18 T.L.R. 717 15 1903 20 Cox. C. C. 394 16Joseph Woodfall Ebsworth, Dictionary of National Biography 1885-1900, volume 11 17 1837 8 C. & P. 243 18 1838 8 C. & P. 539 19 1882 15 Cox C.C. 122 20 1962 Crim L.R. 248



188

In Frost and Hale21

decided 2 years later it was held that the dock statement

should not be considered as evidence in the sense that it is not made on oath and subjected to

cross-examination but it should be received in to the body of proof and the jury is entitled to

give it any weight which they consider it to be fit.

In D.P.P. vs. Walker22

decided 10 years later it was held that the jury is

entitled to give the dock statement some weight which they consider it to be fit.

In Coughlan23

decided 3 years later it was held that the effect of a dock

statement is persuasive rather than evidential and it cannot prove facts that are not otherwise

proved by evidence before the jury and it may make the jury see the proved facts in a

different light.

In Campbell24

decided 2 years later it was commented that the dock statement

has achieved a shadowy character half way in value and weight between sworn evidence and

mere hearsay. A jury cannot be told to disregard it altogether. They must be told to give it a

weight as they consider being fit.

Fifteen years prior to the 1898 Act, prominent legal scholars such as Sir

James Stephens expressed the view that it is unfair to treat accused as an incompetent

witness to give evidence on his own behalf.

Sir Fitz James Stephens in his History of Criminal Law in England said

(1883) "I am convinced by much experience that questioning (the accused) or the power of

giving evidence is a positive assistance, and a highly important one to innocent men and I do

not see why in the case of guilty there need be any hardship about it."

Sir James Stephens passed away in 1894. However the authorities in England

respected Stephens‘ views and they considered that a change of law in this respect was

necessary. Accordingly for the first time in history, the Criminal Evidence Act of 1898

recognized that the accused was a competent witness to give evidence on his own behalf.

Section 1(g) of the Act states that "Every person called in pursuance of this Act shall, unless

otherwise ordained by the court, give evidence from the witness box or other place which

other witnesses give evidence."

Similarly the same Act had another Section that recognized and allowed the

traditional practice of making dock statement. In this context it becomes necessary for us to

consider the basis upon which the legislature decided to retain the practice of making a dock

statement while recognizing the competence of the accused to give evidence from the

witness box. Section 1(h) of the Act states that "Nothing in this act shall affect the

provisions of section 18 of the Indictable Offences Act of 1848 or any right of the person

21 1964 48 Cr. App. Rep. 248 22 1 W. L. R. 1090 23 1977 Cr. App. R. 11 24 1979 69 Cr. App. R. 221



189

charged to make a statement without being sworn‖. Evidently, no clear reason has been

adduced for the retention of the right of the accused to make a dock statement alongside of

the right of the accused to give evidence for his behalf. A considerate mind would however

realize that the abolishing such a longstanding practice would have provoked severe

criticism. Therefore legislators and jurists may have thought that abolishing it overnight

would not be a proper thing to do. The ultimate effect of this statute was to give legislative

recognition to a practice of making dock statements which was unwritten up to that stage

and to make accused a competent witness to give evidence from the witness box. Therefore

the accused could use the opportunity to make a dock statement as of a right.

In this context it becomes necessary for us to consider the reaction of the

English Courts to this amendment. Generally, the Judges have considered the retention of

the practice of making a dock statement alongside with the right of the accused to give

evidence on his behalf will result in a conflict of policy25

. In Shankley vs. Hodgson26

it was

held that a statement from the dock is not evidence but equated it to arguments made by

lawyers in a court house. It meant that the statement from the dock had only argumentative

value rather than evidentiary.

In R. vs. Campbell27

it was held that a statement from the dock has taken

somewhat a shadowy character, half way in between sworn evidence and mere hearsay. In

R. vs. Rider28

it was held that the jury should not consider a statement made from the dock if

such statement has not been proved by independent evidence.

Yet in certain judgments it has been signaled that statements from the dock

should also be considered as evidence. It is evident that this particular amendment received

considerable criticism and that it also had to overcome a number of obstacles in its

implementation. The discussion shows us clearly that even in England where the concept of

dock statement had been conceived, it clouded with controversy.

Reception of the practice of making a statement from the

dock in Sri Lanka.

The position under the Code of Criminal Procedure Act of 1898

The practice of making a statement from the dock was not recognized under the

Ceylon Code of Criminal Procedure Act of 1898. There was no legal provision or procedure

recognizing the concept of ‗dock statement‘ or allowing accused to make a dock statement

in a trial. Yet the effect of this concept was commented upon in an important case of King

25 R. vs. Pope 26[1962] Crim. L. R. 248. 27 (1979) 69 Cri. L.R.11 @ 225 28 (1838) 8. C. & P. 539



190

vs. Sittambaram29

, which was decided in the year of 1920. The facts of the case are as

follows:

At the end of a non-summary inquiry, the magistrate allowed the accused to

make a statement from the dock, as provided for in the statute. The magistrate thereafter

committed the case to District Court for the trial. At the end of the trial at the District Court

the defense counsel made a request that the accused be allowed to make a dock statement.

However, the trial judge decided that even though statute recognized the right to make a

statement from the dock at the end of the non-summary inquiry, it is not recognized as such

at the end of the trial. In appeal, the Supreme Court deeply analyzed the legal position

regarding a statement from the dock and decided that the right of the accused to make a

statement from the dock at the end of the trial is not recognized by the statute. Yet it further

held that section 6 of the Code of Criminal Procedure of 1898(Ceylon) provides that English

Law of criminal procedure would apply in a situations where legal provisions in Ceylon are

silent on any procedural issue. In addition the Section stipulated that it could be done only if

the English law does not conflict with any of the laws in Ceylon. Accordingly the Supreme

Court decided that the practice of making a statement from the dock, which was recognized

by the UK Criminal Evidence Act of 1898, is also a part of the law in Ceylon because our

law was silent. It is evident that the law in this respect was developed not by a statute but by

the courts in exercising its powers of interpretation. Therefore it teaches us the valuable

lesson that law could also be developed by the Supreme Court. It is through this judgment

that was decided in 1920 that Ceylon adopted the practice to make a statement from the

dock.

In a number of cases decided thereafter, the extent and the scope of the right

to make a statement from the dock was considered. In R. vs. Buddarakkitha Thero30

the main

issue was whether the statement from the dock can be considered as ‗evidence‘ in the case.

The Supreme Court commented that since the practice of making a dock statement was

given recognition by the courts for a long time, it has become an established law. The court

further held that even though the statement from the dock is not made on oath or affirmation

and is not subjected to cross examination, it should be considered as ‗evidence‘ in the case.

The court formed the view that the concept of allowing the dock statement becomes

meaningless if it is not going to be considered as evidence. It has to be borne in mind that

the court made these observation in obiter and not as a part or ratio decidendi.

The same approach was adopted in King vs. Arsa31

. It was held in this case

that the statement from the dock should be considered as evidence on the basis that such

statements are included in the term ―matter‖ in section 3 of the Evidence Ordinance. It is

respectfully submitted that this decision seems to have been arrived at without considering

the scheme and the symmetry of the Evidence Ordinance.

2920 N.L.R. page 257 3063 N.L.R. page 433 3170 N.L.R. page 403



191

The next important question is whether it is proper for High Court judge to

direct the Jury in his summing-up that the accused deliberately refrained from giving sworn

evidence and the statement from the dock has a lesser value. This issue has been decided in

the case of R vs. Kularathna32

, in which the Supreme Court decided that such statements

should be considered as evidence, and it is proper and legal to tell the jury that it has lesser

value and that the accused has deliberately refrained from giving sworn evidence. In

addition, the Court laid down several guidelines that can be used in analyzing the statement

from the dock. These guidelines have evolved to be principles of law and operative as the

law in the country. If these guidelines were not observed by the trial judge in his summing

up to the jury or in delivering the judgment in a non-jury trial, the appellate courts would

vitiate the conviction. The non-observation of these guidelines would compel the appellate

courts to either acquit the accused or order a retrial. It is extremely difficult to secure a

conviction following a retrial. Such outcome would be unfair and detrimental to the victims

and wider society. It is equally unreasonable for the accused to face a retrial as a result of

the lapse on the part of the trial judge.

According to the judgment the legal effect of a dock statement can be as

follows:

1. If the court believes the dock statement, the accused should be acquitted.

2. Merely because the court disbelieves the statement from the dock, the court cannot

determine that the accused is guilty. When the prosecution is unable to prove its case

through evidence called by the prosecution, even if the court rejects the dock

statement, the accused should be acquitted.

3. If the dock statement is neither believed nor disbelieved, the accused must be

acquitted.

4. The only situation in which the accused can be found guilty is where the prosecution

has proved its case beyond reasonable doubt and the dock statement is rejected.

5. The statement from the dock cannot be used as evidence against a co-accused. The

reason for maintaining this principle is due to the inability to subject the dock

statement for cross examination.

We have now analyzed that the statement from the dock has a lesser value due

to the fact that it is not made on oath or affirmation and it is not subjected to cross-

examination. In Queen vs. Kularatna it was held that the High Court Judge is entitled to

direct the Jury regarding the fact that the evidential value of the statement from the dock is

less. In Punchirala vs. The Queen33

the Trial Judge has directed the Jury that the evidential

value of the statement from the dock is less since it is not made on oath and since it is not

3271 N.L.R. page 529 3375 N. L. R. 174



192

subjected to cross-examination. However the Supreme Court held that while the infirmities

of the evidence should be pointed out to the jury, the jury should be allowed to decide as to

what value should be attached to the dock statement and they should not be unduly

influenced by the trial judge.

It is evident from these decisions that it is not illegal for trial Judge to explain

the legal position of the dock statement; he cannot directly or indirectly influence the

decision of the Jury by emphasizing the infirmities of the dock statement. The criticism is

the manner in which the trial Judge gives directions to the Jury, his mode of pronunciations

and his indirect signals to the Jury. Therefore the High Court judge should take care not to

give clues through body language as those might be wrongly interpreted by the jury.

The position under the Administration of Justice Law of 1973

In Sugathadasa vs. the Republic of Sri Lanka34

the Supreme Court considered the

position of a dock statement under the Administration of Justice Law of 1973(AJL). Section

213(2) of AJL stipulates that the trial judge shall inform the accused that he has the right to

give ‗evidence‘ for his defense. The Supreme Court decided that the right to make a dock

statement was not abolished by the law and the term ―evidence‖ in this section would also

include a statement from the dock.

The ratio of this case is that none of the sections in the AJL has expressly abolished

the long-standing practice of making a dock statement. Accordingly, the court allowed

continuing with the long-standing practice of making a dock statement, which then had a

history of over 70 years.

The position under the Code of Criminal Procedure Act No.15 of 1979

The next issue is whether the Code of Criminal Procedure Act No.15 of 1979 which

was enacted after abolishing the AJL has facilitated the making a statement from the dock.

As stated earlier in this paper, it expressly recognizes the right of the accused to make a

statement from the dock at the Non-summary inquiry. Yet it does not expressly provide for

the making of such a statement at the High Court or Magistrate Court summary trial.

As a result of becoming a Republic in 1972, Sri Lanka has shed its legal relations

with England. Section 6 of the Criminal Procedure Code of 1898 had provided that in a

situation where the Domestic Law relating to Criminal Procedure is silent, the law relating

to Criminal Procedure for the time being in force in England shall be applied.

Yet in the Code of 1979, there is no provision to a similar effect. Section 7 of the Code

provides that,

3478 N.L.R. 495



193

“As regarding matters of criminal procedure for which special provisions may

not have been made by this code or by any other law for the time being in force

such procedure as the justice of the case may require and as in not inconsistent

with this code may be followed.”

According to this provision it is evident that whenever there is a lacuna in the local law

relating to Criminal Procedure, the courts are not bound to follow the law in England.

However we are reminded that even though the statutory law of Sri Lanka did not expressly

recognize the right to make a statement from the dock, since it had been expressly

recognized under the English Criminal Evidence Act of 1898, it had become a part of our

local law. This argument was accepted in the case of R. vs. Sittambaram, decided in

1920.The judgment was based on the law in England. Since Sri Lanka has shed all its legal

relations with England, it could be argued that the practice of making a dock statement

should not be allowed in Sri Lanka as it did not have a legal validity any more. The

argument is that after 1972, the practice of making a statement from the dock should not

have been permitted in Sri Lankan courts. The counter argument would be that merely

because Sri Lanka shed all its legal ties with England in 1972, that it would not invalidate all

the laws that have been received, developed and established in Sri Lanka from England. It

would mean that laws that were received from England which have been followed as a

custom, tradition or a norm will not be automatically rendered invalid by reason of Sri

Lanka becoming a Republic.

Another argument that can be made is section 100 of the Evidence Ordinance No.

14 of 1895 would also applicable in this respect. Even though Sri Lanka became a Republic

in 1972, the link between England and Sri Lanka in respect of law of Evidence remains

unchanged. Section 100 of the Sri Lankan Evidence Ordinance provides that in respect of

matters of evidence which have not been provided for by the Ordinance, the law relating to

evidence in England shall apply. This section remains unchanged up to this date. Therefore

the argument would be that since English courts have recognized the right to make a dock

statement in England at that time, it should also apply to Sri Lanka. It would be made

applicable in Sri Lanka in spite of the fact that 1979 Code of Criminal Procedure Act of Sri

Lanka is silent on the issue.

The issue in this situation is whether the practice of making a statement from the

dock is a matter relating to evidence or to that of criminal procedure. If it is an issue relating

to criminal procedure, then section 100 of the Evidence Ordinance cannot be used as means

of asserting that the right to make a dock statement applies to Sri Lanka as well. If it is a

matter relating to evidence, then section 100 can be used to insist that the right is applicable

to Sri Lanka also.

The modern law of evidence in England does not permit the practice of making a

statement from the dock. Therefore if section 100 has been acted upon, the practice of

making a statement from the dock should not be allowed by the Courts in Sri Lanka.



194

The evolution of English Law relating to dock statements

In England, the law relating to Evidence and Criminal Procedure was

contained in one enactment – the Criminal Evidence Act of 1898. Since it expressly

recognized the right of the accused to make a statement from the dock, the practice of

making such a statement was permitted in the courts. Yet by 1972, there were strong

criticisms regarding the practice of making statement from the dock. Therefore a Criminal

Law Revision Committee of UK was appointed in 1972 to examine the issue and other

criminal justice issues, and report to the government.

After in depth analysis, the Commission prepared a report which included the

recommendation that the right of the accused to make statement from the dock, without

taking an oath or an affirmation and without being subjected to cross examination does not

serve the ends of justice and therefore it has to be abolished.

The analysis and the reasons given by the committee are as follows:

―Whatever justification there may have been for preserving the

right in 1898, we think that nowadays the accused, if he gives evidence, should do so in the

same way as other witnesses and be subjected to cross-examination. It is now in the interest

of justice that the accused should have the advantages, for that they may be worth,

mentioned…[T]he present rule has another disadvantage in that, if the accused is

unrepresented, the court should explain to him that he has the choice between these courses.

Since in the great majority of the cases the accused, if he intends to give evidence, intends to

do on oath, the explanation is most unnecessary anyhow; and it has the practical

disadvantages in the case of an undefended person who is at all nervous, that just at the time

when he has to make his defense and should be concentrating on this, he may be put off by

the legal technicality of an invitation to consider doing something which he had no thought

of doing.‖

The crux of this passage is that it would be an obstacle for the administration

of justice if the accused is allowed to make a statement from the dock instead of giving

evidence from the witness box. Further, when an accused person who is willing to give

evidence from the witness box is informed by the Judge that he has the option of giving

evidence from the dock, and he may get confused. It would most probably occur in a

situation where the accused decides to conduct his case without obtaining the services of a

lawyer. The crux of this report is that if the accused chooses to provide evidence, then he

should provide it on oath or affirmation and should also be subjected to cross-examination.



195

International Trends

The Position in England

Once the Criminal Law Revision Committee made its recommendations, it

gave rise to a long discussion on this matter in England. Accordingly, the Criminal Justice

Act of 1982 was introduced and it abolished the right of the accused to make a statement

from the dock. Section 72 of the Act postulates that,

Section 72: Abolition of the right of the accused to make an unsworn

statement.

(1) Subjected to subsection (2) and (3) below, in any criminal proceedings the

accused shall not be entitled to make a statement without being sworn and

accordingly, if he gives evidence, he shall do so (subject to section 55 and of

the Youth Justice and Criminal Evidence Act of 1999) on oath and be liable

to cross examination; but this section shall not affect the right of the accused,

if not represented by counsel or solicitor, to address the court or Jury

otherwise than on oath on any matter on which, if he were so represented,

counsel or a solicitor could address the Jury on his behalf.

(2) Nothing in subsection (1) above shall prevent the accused making a statement

without being sworn -(a) if it is one which he is required by law to make

personally; or (b) if he make it by way of mitigation before the court passes

sentence upon him.

(3) Nothing in this section applies – (a) to trial or (b) to proceedings before a

magistrates‘ court acting as examining justices, which began before the

commencement of this section.

The meaning of this section is that the accused will not have the opportunity

of making a statement unless he makes it from the witness box on oath or affirmation and is

subjected to cross-examination. Accordingly, the long standing practice of making a

statement from the dock, which later received legislative recognition, was abolished from

the entire judicial apparatus in England subject to the exceptions mentioned in the section 72

of the Criminal Justice Act of 1982. For example, if the accused is not represented by a

lawyer at the court, the accused has the right to address the court. It would only mean that he

can address the court like a lawyer who analyzes the facts and he would not be allowed to

provide evidence when making oral submissions. Since the root of our law is in England and

when they have disposed of the right, one could ask whether it is lawful and moral for Sri

Lanka to retain it further. I wish to analyze this matter later in detail.



196

The position in Australia

Similar to the position in England, the belief of the legal fraternity in the State

of New South Wales (NSW) from 16th

century onwards was that the accused is an

incompetent witness to give evidence on his own behalf. Further he was denied of the right

to legal representation. Therefore the courts allowed the accused to make a statement from

the dock as a practice. Even the Criminal Law Amendment Act of 1883 of NSW recognized

that the accused has a right to make a statement from the dock. Yet in certain situations, the

higher courts have criticized the practice and the provision in the said law. In R. vs. Tyford35

,

it was held that historical justifications for permitting the accused to make a statement from

the dock are no longer valid since the statute already recognizes the accused as a competent

witness to give evidence from the witness box. It should be noted specially, that in 1883,

even before England recognized accused as a competent witness, the state of New South

Wales has recognized it.

In the case of R. vs. McKenna36

decided in Queensland, it was held that since

the accused has been recognized as a competent witness by statute, the accused should not

be allowed to make a statement from the dock. Yet legal scholars have recommended in the

Criminal Law Report in 1977 in Queensland that the right of the accused to make a

statement from the dock should be abolished. What should be stressed in this situation is that

Australia was a dominion state of England at this time and therefore they were quite aware

of the developments of the law taking place in England.

Accordingly, different States in Australia abolished this right in different

years. In 1975 the state of Queensland abolished it and in 1976 Western Australian state

abolished it. In 1993 South Australian state abolished the right to make a statement from the

dock.

In fact, the legal scholars in Australia seem to be well aware of the

recommendations of the Criminal Law Revision Committee of 1972 made in England. In

most instances Australia have followed and adopted development of law in England.

Accordingly, the state of New South Wales abolished the right to make a dock statement in

1994. Crimes Legislation (Unsworn Evidence) Amendment Act No. 26 of 1994 of NSW

abolished the dock statement. Section 404(A) of the said statute is as follows:

(1) Section 404(A)

Before section 405, insert:

Abolition of the accused‟s right to make an unsworn statement or to give

unsworn evidence.

35(1893) 14 N.S.W.L.R. 51 36(1951) Q.S.R. 299



197

404(A) (1) any rule of law or procedure or practice permitting a person who is

charged with the commission of a criminal offence to make an unsworn

statement or to give unsworn evidence in answer to charge is abolished.

United States of America.

Similar to the position in England, there was a practice in USA of allowing the

accused to make a statement from the dock. This position changed when it was recognized

by statute that the accused is a competent witness to give evidence on his own behalf. Most

states thereafter recognized that the accused persons no longer have the right to make a

statement from the dock. In State vs. Louviere37

it was held that since the accused has been

recognized by statute as a competent witness to give evidence on his own behalf, the right of

the accused to make a dock statement should be abolished and it should not be admitted as

evidence. Yet the state of Massachusetts has decided to retain it. This was evident in the

decision of Commonwealth vs. Steward38

.

The Canadian position

The Canadian Evidence Act of 189339

has expressly recognized that the

accused is a competent witness to give evidence from the witness box on his own behalf.

Yet, unlike in England and South Africa, the statute did not recognize that the accused has a

right to make a statement from the dock also. In fact, the Canadian Supreme court ruled that

the accused no longer has the right to make a dock statement. It was upheld in a number of

cases.

R. vs. McNabb (1945) 1 D.L.R. 583

R. vs. Kelly (1916) 34 D.L.R. 583

R. vs. Rogers (1888) 1 B.C.R. (pt. 2) 119

R. vs. Campbell (1919) 33 Can. C.C. 364

The basis for these decisions is that the statute only recognized competency of

the accused to give evidence but the statute did not recognize that he has a right to make a

statement from the dock.

In R. vs. Krafchenko40

the court compared section 1(h) of the Criminal

Evidence Act of 1898 of UK with the Canadian law. It was held that if not for section 1(h),

37 169 La at 119 38(1926) 151 N.E.R. 74 39RSC 1985, c,C-5 40[1914] 17 D.L.R. 244, 250 (Man.K.B.)



198

England would also have considered that the right to make a statement from the dock has

been abolished.

The South African position

Similar to the position in England, the right of the accused to make a

statement from the dock was retained by a statute in South Africa. In R. vs. Cele41

it was held

that the accused has an undisputed right to make a statement from the dock. However, South

Africa abolished this right in 1977.

The Indian position

India seems to have adopted a very unique position regarding the statements

from the dock. It is therefore of utmost importance to analyze the origin of Indian law in this

respect.

The Evidence Ordinance of 1872, drafted by Sir James Stephens, did not

recognize that the accused is a competent witness to give evidence from the witness box on

his own behalf. Therefore in practice India allowed an accused person to make a dock

statement. It was indeed fair procedure. However the Sri Lankan Evidence Ordinance

(1895), enacted 23 years later and based on Sir James Stephens‘ Indian Ordinance,

recognizes that the accused is a competent witness on his own behalf -Vide section 120(6).

Three years thereafter, in 1898 England recognized that the accused is a competent witness

to give evidence on his own behalf and also that the accused has the option of giving

evidence from the dock. Sir James Stephens thinking seems to be behind this amendment as

well though he passed away in 1894. Evidently the English statute has intentionally given

the option to the accused to make a statement from the dock. Thereafter no jurist has

attempted to change the Indian or Sri Lankan law in this respect.

Yet under section 342 of the Criminal Procedure Code of India which was

enacted in 1898, the Judge is entitled to ask questions from the accused who is in the dock.

It is done in order to enable the accused to explain personally of any circumstance that

appears in evidence against him. According to section 342(2), if the accused failed to answer

such questions or gave false evidence, the court is entitled to draw adverse inferences from

it.

According to Article 20(3) of the Indian Constitution which was promulgated

in 1950, the accused has the right against self-incrimination.

The Criminal Procedure (Amendment) Act No. 26 of 1955 of India retained

section 342 and section 342(2). In addition, section 342(A) was introduced to it. It stipulated

that, for the first time in the Indian History, the accused is competent to give evidence on his

own behalf. It further stated that failure to give sworn evidence shall not be subjected to

41 [1959] 1 SA 255



199

comment by the court or by any party. The rationale behind this provision seems to be not to

compel an accused to give sworn evidence. It is in order to keep compliance with Article

20(3) of the constitution. Yet the provision stating that the court could draw adverse

inferences from accused being remained silent from the dock in response to questions asked

by the court was retained.

The Criminal Procedure Code No. 2 of 1973 has abolished the earlier Code

and has introduced two provisions in relation to this respect. Section 313 in the new Code is

similar to section 342 of the earlier Code and therefore the provision that the court can ask

questions from the accused was retained. Yet, drawing adverse inferences from his silence in

response to such questions has been removed.

Section 315 is similar to section 342(A) of the old Code. It stipulated that the

accused is a competent witness to give evidence on his own behalf and neither the court nor

the parties can draw adverse criticism for the failure to give such evidence.

These Indian provisions evidently create confusion in our minds. A number of

anomalies will arise especially from the provision where the Judge can question the accused

who is in the dock. The scope of such questioning, whether he can cross-examine the

accused, whether the counsel for the accused and the prosecution can ask questions from

him, whether the parties can clear a doubt regarding a question asked by the Judge which

can be considered as partial to either party are not determined by statute. Therefore this

practice has been criticized in a number of judgments.

However, the accused can make a statement from the dock also if he desires

so. Even if he does not opt to make a statement as such, the judge can still question the

accused.

Thus, it is evident that when compared with Sri Lankan law, the application of

a dock statement in India has caused injustice to the accused. Similarly it could cause

damage to the prosecution as well since the prosecution is unable to obtain clarification from

the accused regarding the answers he gave to the judge. Therefore adopting the Indian

position in Sri Lanka would not provide a solution to this issue.

The position in Singapore

Singapore has usually adopted the English legal concepts and principles.

Therefore the impact of the recommendations made by the UK Criminal Law Revision

Committee of 1972 must have influenced Singapore. Though UK was slow to act upon the

recommendation of the Committee, Singapore was prompt to introduce necessary

legislation. Accordingly, the right to make a dock statement was abolished in Singapore

through the Criminal Procedure Code (Amendment) Act of 1976.



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Section 186(A) postulates that,

(1) In any criminal proceedings except an inquiry preliminary to committal for

trial, the accused shall not be entitled to make a statement without being sworn

or affirmed, and accordingly, if he gives evidence, he shall do so on oath or

affirmation and be liable to cross-examination; but this subsection shall not

affect the right of the accused, if not represented by an advocate to address the

court otherwise than on oath or affirmation of any matter which, if he was so

represented, the advocate could address the court on his behalf.

The purpose of this section is to completely abolish the right of the accused to

make a dock statement.

Thus it is evident that when the recommendations were made by the

Committee in England to abolish dock statement, other countries also followed suit by

repealing their respective laws. We see how the trend which started off from England spread

throughout the world in epidemic proportion. The prominent legal scholars in those

countries may have thought beyond the academic boundaries and may have considered the

practical implications of retaining this right. They may have thought that it is the opportune

moment to dispose of archaic and unfitting laws to the museum of history. They may have

been brave enough to undertake the challenge of amending the law when it becomes

necessary to do so. The legislature also in such countries seems to have been well aware of

such a need.

Should the right to make a stament from the dock be

retained in Sri Lanka?

In giving a final answer to this question, a deep analysis should be made in

this respect. Part of this analysis has been already done in my discussion in respect of the Sri

Lankan law. Yet some other important legal concepts and principles should also be

considered.

The law relating to Criminal Procedure in Sri Lanka is contained in the Code

of Criminal Procedure Act No. 15 of 1979. The admissibility, relevance and the manner of

leading evidence are stipulated in the Evidence Ordinance.

Let us now consider logically whether our written laws or developed law

permits accused to make a dock statement and whether such practice has raised many other

legal issues in this respect.

1. If an item of evidence is to be led, the court should be satisfied about the



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logical and legal relevance of such evidence. Section 136 of the Evidence

Ordinance postulates that before a particular fact is produced as evidence, the

party who intends to call it should state it to the court and obtains permission

to adduce it. When the Judge asks from such party the manner in which it is

relevant, they should convince the court about its relevance. It is to be done

on the basis that such ―fact‖ would come within ―relevant facts‖ as defined in

the Evidence Ordinance. For example, if the accused intends to give evidence

from the witness box, the court should be convinced about its legal relevance.

In such a situation, relevance of the evidence which the accused intends to

produce and whether the accused is a competent witness should be

established to the satisfaction of the court. It is done with the intention of

preventing the jury from taking irrelevant facts in to its consideration. Once

an irrelevant fact is led in evidence in court, it would be impossible to erase

the impact of such evidence from the minds of the jury.

2. Section 118 of the Ordinance states that a witness should be a competent

witness. A person who is not of tender age, of extreme old age, physical or

mental infirmity is considered as a competent witness. In addition, section

120(6) states that the accused is a competent witness on his own behalf. It

also states that if the accused chooses to give evidence, he should give it like

any other witness. It would mean that the accused should also give evidence

under oath or affirmation and he should be subjected to cross-examination.

3. According to section 4(1) Oath and Affirmation Ordinance No. 9 of 1895, the

witness should take an oath or affirmation before he gives evidence. This

means that even if an accused is considered as a competent witness, he should

give evidence only under oath or affirmation, if his evidence is to be

considered by the court. It could only be done when he is in the witness box.

There is no provision in the Evidence Ordinance that displaces this provision

in the Oath and Affirmation Ordinance. Since the Evidence Ordinance was

enacted after the enactment of the Oath and Affirmation Ordinance, Sir James

Stephens and his followers may have been well aware of the legal position in

Sri Lanka. Therefore drafters of Sri Lankan Evidence Ordinance of 1895 may

not have intended to allow dock statements. Otherwise they could have

conveniently included a provision in the Evidence Ordinance that would

circumvent the provisions of the Oaths and Affirmations Ordinance. It has to

be borne in mind the development that took place in UK also during the same

period. The English Criminal Evidence Act of 1898 specifically provides that

the accused has a right to make a dock statement. Sir James Stephens may

have influenced such a provision prior to his death in 1894. Therefore if Sir

James Stephens intended that the right should also be preserved in Sri Lanka,

he may have expressly provided so in the Evidence Ordinance drafted by him

and enacted in Sri Lanka in 1895. Therefore it is clear that the draftsman of



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the Evidence Ordinance did not intend to retain the right to make a dock

statement in Sri Lanka.

While England was following a practice which was firmly established on its

soil by virtue of custom and practice, the draftsman of the Sri Lankan Evidence Ordinance

has specifically stated in section 120(6) that the accused is a competent witness to give

evidence on his own behalf. Therefore the accused seems to have had a forum in which he

can tell the court about his side of the story. Evidently what Sir James Stephens had done in

respect of Sri Lanka is to remove the legal basis upon which the right to make a dock

statement could be justified. He may have been compelled to do so because of the negative

impact received in the application of dock statement. Thus it is very clear that the draftsman

of the Evidence Ordinance did not have the least idea of introducing the right of the accused

to make a statement from the dock.

Importantly, in drafting the Indian Evidence Ordinance in 1872, Sir James

Stephens did not include a provision that would make the accused a competent witness to

give evidence on his own behalf .The evolution of his creative thinking is shown by the fact

that twenty three years later in drafting the Evidence Ordinance for Sri Lanka in 1895 he has

included section 120(6) that recognizes the accused as a competent witness on his own

behalf. Moreover, England has recognized the competence of the accused as witness in

1898. The creative force behind the thinking of Sir James Stephens has enabled the

Evidence Ordinance to remain unchallenged over such a long period. The reason behind his

excellence seems to be his willingness and humbleness to alter his views according to his

experiences in India and England.

4. When the accused gives evidence from the dock, the requirement that he

should give evidence on oath or affirmation and that he should be subjected to

cross-examination will not be fulfilled. We should be mindful of the fact that

according to section 138(1) of the Evidence Ordinance, once evidence is

elicited from a witness at the Non-summary inquiry, the other party has the

right to cross-examine him. This right will not be available in a situation

where the accused gives evidence from the dock since it has not been

provided for under the Ordinance. Professor G.L. Peiris42

makes a valuable

contribution in this respect.

―A statement from the dock confers an undue advantage on the accused in so

far as he is equipped with the means, at least potentially, of achieving the

desired impact on the jury without incurring the jeopardy of cross-

examination as to character and credibility.

Professor G.L. Peiris continues as,

42G. L. Peiris, Recent Trends in the Commonwealth Law of Evidence, 1st edition, Sarvodaya Book Publishing

Services, Sri Lanka (1989)



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―These considerations support the conclusion that statements from the dock

represent an anomaly in the administration of criminal justice and the

abolition of the right of the accused person to make unsworn statements is

welcome.‖- page 195.

5. When a witness gives evidence from the witness box, such evidence should

comply with the requirements of the Evidence Ordinance. Firstly, such

evidence should be those which he perceived through his senses. He is

prevented from giving hearsay evidence, which can be defined as those which

a witness has perceived through another person. In addition, a lay witness is

not allowed to give his opinion on a particular matter. The Judge is entitled to

prevent the accused from giving evidence if his evidence contravenes these

provisions, since he is allowed only to give evidence which is relevant.

Therefore if the accused contravenes section 60 of Evidence Ordinance Judge

can stop the accused from giving such evidence.

6. If the accused gives evidence on any fact which he has perceived through his

senses, it could be relevant under section 7 and 11 of the Evidence Ordinance.

Under section 7 it could be the cause or the effect of the crime. For an

example, the accused may admit that he committed the crime but state that he

did it under grave and sudden provocation or self-defense. If the accused

produces evidence of an alibi it would make the prosecution case highly

improbable and such evidence is relevant under section 11 of the Ordinance.

Relevancy under section 7 and 11 are regarded as logical relevancy. If such

logically relevant evidence fulfills the requirements of section 60, then such

evidence becomes legally relevant evidence as well. If the trial judge is not

satisfied with regard to admissibility, he can stop the defense counsel asking

irrelevant questions. Therefore when the accused gives evidence from the

witness box, judge has the power to regulate the admissibility.

On the other hand if the accused chooses to give evidence from the dock, he

cannot be stopped by any force whatsoever. The provisions of the Evidence

ordinance has not laid down such a procedure. Even the scheme and the

symmetry of the Ordinance do not give any indication that the judge could

prevent such irrelevant evidence emanating from the dock. The accused may

make statements regarding facts which he did not even perceive through his

senses and may also express opinions in his statement from the dock. The

Judge is not entitled to stop the accused from doing it. One can argue that

since the Judge can ignore such statements in considering the overall

evidence of the case, it may not cause any prejudice to the prosecution. Yet

there is also an inherent disadvantage in such illegal evidence. The statement

from the dock may still influence the mind of the judge and also the jury even

such evidence is not admissible. It is very hard for a judge to direct the jury to



204

not to consider the dock statement and even if such direction is given jury

might not seriously consider it. This would have damning effect on the entire

administration of criminal justice.

7. When the accused gives evidence, the court has to decide whether to believe

such evidence or to disregard it. If such evidence is neither believed nor

disbelieved, there would be a reasonable doubt regarding the guilt of the

accused. The credibility of the accused will be determined on the basis as to

whether his evidence created a reasonable doubt in the mind of the judge

regarding his guilt. For this purpose, his statement should be considered in the

context of the entire evidence of the case. Since the prosecution will not be

able to draw the attention of the court to the contradictions and omissions in

his statement from the dock, and plead the court to disregard such a

statement. Since the court is unable properly analyze such statement it might

lead to confusion.

8. The prosecution can, with the permission of the judge, lead evidence of

witnesses in rebuttal to challenge the statement made by the accused from the

dock. Such witnesses have to give evidence from the witness box under oath

and while being subjected to cross examination. In such a situation, the judge

may conclude the credibility of such witnesses is in a greater degree than the

statement from the dock which is neither made on oath nor subjected to cross-

examination. This would cause prejudice to the accused.

9. We need to focus our attention to another aspect too. Just because the accused

states a fact in his evidence, the prosecution cannot call evidence in rebuttal.

The legal provisions relating to evidence in rebuttal are contained in section

202 of the Code of Criminal Procedure Act. In addition, the courts have

developed certain principles that would apply in this respect. One such

principle is not allowed to call evidence in rebuttal unless the prosecution is

surprised by the defense put forward by the accused. For example if the

dossier of investigation reveals a particular defense then, it is deemed that the

prosecution is not surprised and therefore prosecutions cannot call evidence in

rebuttal once the defense case is over. If the accused gives evidence from the

witness box then the prosecution might be able to challenge the line of

defense and demolish the credibility of the defense through cross

examination. In such situation the necessity of calling evidence in rebuttal

does not arise. On the other hand if the accused makes a dock statement the

prosecution has no way of challenging the credibility of the defense. As

discussed previously evidence rebuttal cannot be called in every instance, the

prosecution is at a highly disadvantaged position. Therefore principle of dock

statement has certainly caused chaos in the scheme of the criminal procedure



205

in the country.

According to the above analysis, court is placed in a predicament as it cannot

properly evaluate the credibility of the dock statement. Permitting the accused to make a

statement from the dock has caused an anomaly in the law. It has unduly affected not only

the prosecution but the defense also. In addition, some practical difficulties may also arise if

the accused is permitted to make a dock statement. Those can be summarized as follows:

1. As happened in a very famous case, if the accused opts to drag the dock

statement for several days, the judge would not be able to stop to it. An

emotional accused may resort to make the dock statement in an unreserved

manner without understanding the legal implication. In such a situation, it

might cause prejudice to the accused as well. Especially, when the accused

gives evidence from the witness box, counsel for the accused would elicit

evidence that are relevant. He would do it in a very methodical, reserved

manner. In a recent workshop organized by the Bar Association in relation to

this subject, a very distinguished lawyer in this country explained a case in

which the accused, without understanding lawyer‘s instructions, has

proceeded to make a very lengthy statement from the dock and it had been to

the advantage of the prosecution. The accused in such situations would try to

analyze the case like a lawyer rather than explaining the facts of the case.

Therefore the distinguished lawyer sarcastically questioned as to why the

State want to amend the law since it is advantageous to the prosecution. This

illustration shows how a dock statement has paved the way for injustice to the

accused.

2. If the accused attacks the character and reputation of the witnesses, a court

may not be able to stop him. It will be very unreasonable and damaging to the

prosecution. Similarly, the court would form an adverse opinion about the

accused also as he had attempted assassinate the character of the witness who

is very likely to be the victim. In such event the dock statement would be

detriment to the accused. There can be an instance where the accused might

make a dock statement revealing his bad character without understanding the

ramification. Then the jury may arrive at a conclusion that is disadvantageous

to him. On the other hand if the accused tries to elicit his bad character from

the witness box, the judge or the counsel for the prosecution may stop him.

This prevention cannot be done if the accused makes a dock statement.

3. The steps that should be followed when a document is produced from the

witness box are contained in section 61 to section 73 of the Evidence

Ordinance. A question arise as to what the court should do if the accused

seeks to produce documents while making a dock statement. There is no legal

provision for the court to admit such documents. Similarly, if the accused



206

takes out a document out of his pocket and reads from it while giving

evidence from the dock, none of above provisions will apply. There is no

legal value to such a document and the contents of such document cannot be

analyzed.

4. The accused is not allowed to refresh his memory by looking at a document

or note when he is giving evidence from the witness box unless the document

itself is admitted as evidence. If the accused makes a dock statement by

refreshing his memory from a document or note, it would be a disastrous.

Then the judge will not be able to stop him. One can argue that when the

prosecution had presented a large volume of evidence, it is difficult to keep

track of all such evidence in one‘s mind and therefore it is fair by the accused

to take down notes and refer to them while he is making a statement from the

dock. The counter argument is that the document may have been prepared by

a lawyer and not by the accused. The judge may not be able to stop such

fabricated statements.

5. The prevailing position as per Code of Criminal Procedure (Amendment) No

14 of 2005 in relation to alibi is that the accused will not be able to give

evidence of it for the first time in his defense. The accused should have raised

alibi either in his statement to the police or in the non-summary inquiry.

However there is a danger that without complying to the said law the accused

could raise alibi position for the first time in his dock statement and the judge

is not able to stop the dock statement. This would create a number of

questions leading to chaos.

6. Demeanour of a witness during cross examination is a vital tool in evaluating

credibility of such witness. Since the statement from the dock is not subjected

to cross-examination, the Judge will not be able to come to a specific

conclusion regarding demeanor or deportment of the accused.

7. According to several decided cases, if an accused implicates a co-accused in

his dock statement, it cannot be used in evidence against such co-accused. Yet

if the co-accused makes such a statement from the dock, the judge may not be

able to stop it. This anomaly will have a telling effect especially in jury trial.

8. If the accused makes a contradictory statement from the dock to that of his

earlier statement to the police or at the non-summary inquiry, the prosecution

will not be able to point it out to the court. Section 144 of the Evidence

Ordinance states that in order to mark contradictions, attention of the accused

should be drawn to his previous statements. If the statement is made from the

dock, none of these provisions can be resorted to.

9. If the accused makes a dock statement sometimes judge might not place great



207

credence and therefore reject the defense version. On the other hand if the

accused gives evidence from the witness box he might be able to create a

reasonable doubt in the mind of the judge. Accused wrong perception about

the value of the dock statement ultimately operate against his interest. The

confusion is disadvantageous to the accused. We do not possess research

reports or data to see what the judges think about a statement from the dock.

It is uncertain as to whether the judges in fact place any reliance on such

statements. Rarely, accused is able to create a reasonable doubt from his dock

statement. One could generally say that there is a pattern in the way in which

the judges disregard dock statement

There had been several instances in which the accused persons were acquitted

by considering his statement from the dock. Sometimes judges have placed

excessive reliance which is disproportionate in the circumstances of the case

upon the statement from the dock. Some courts tend to think whenever

accused make a dock statement it always create a reasonable doubt on the

prosecution case. Such misguided approach is disadvantageous to the

prosecution.

10. In Hon Sarath Ambepitiya‘s murder case43

it was decided by a five judge

bench that the Ellenborough dicta is a part of the law of Sri Lanka. The Ellen

borough dicta postulates that when a strong case has been made against the

accused and if the accused refrains from explaining the facts when he

possessed the means of doing it, an adverse inference can be drawn against

him. This is indeed a major step that is taken by the judiciary in order to

develop the law in Sri Lanka. It did not happen overnight but rather a

culmination of a long standing practice in to proper law. This judgment could

be considered as the case that formally accepted the principles in

Ellenborough dictum in Sri Lanka. The importance of it lies in the fact that it

was decided by our own judges. We should respectfully admire the fact that

Ellenborough dicta were properly received in Sri Lanka. It is not necessary

look for a photocopy of the dicta that had been introduced by UK courts. The

most important aspect is that our courts on their own established such a

principle. According to the dictum it may not be prudent for the accused to

remain silent if there is a possibility that an adverse inference could be drawn

against him. Sometimes accused may mistakenly think that merely making a

dock statement is sufficient enough to explain his position even though

prosecution has a very strong case. The option of making dock statement

confuses the accused to a great extent. If he did not have the option of making

a statement from the dock, he would have decided to give evidence from the

witness box. It is indeed fair from the perspective the accused. Therefore one

43Naufer vs AG SC (Appeal) TAB 01/2006



208

could argue that having the option of dock statement may sometimes mislead

and confuse the accused.

11. If the practice of making a statement from the dock is abolished, the accused

may have to give evidence from the witness box. In such situations, the

counsel for the prosecution can mark contradictions from his statement to the

police. One may argue that during the investigation police may have elicited a

statement by force from the accused and therefore it is unfair to allow the

prosecution to mark and produce contradictions. Therefore it can be argued

that the practice of making a statement from the dock should be retained in

which event contradictions and omissions cannot be marked or proved.

The counter argument would be that since the prosecution is not allowed to

mark contradictions or show omissions from the confessionary parts of his

statement given to the police, the accused is not in a disadvantaged position.

The prosecution is also prohibited from cross-examining the accused in

respect of such confessionary statements as the court would not permit such

questioning. This legal position has been developed with the aid of section 25

of the Evidence Ordinance, section 110(3) of the Code of criminal Procedure

Act and decided cases. Even the parts of the statement that are not

confessionary can only be used for the purpose of marking contradictions

only. It can never be used as substantive evidence or corroborative evidence.

Therefore giving evidence from the witness box does not cause prejudice to

the accused.

12. One may argue that when the accused gives evidence from the witness box,

he may be frightened due to the gravity of the offence as he is charged with a

serious offence and therefore it is unfair to subject him for coercive cross-

examine. However section 120(6) of the Evidence Ordinance lays down, that

the judge has the discretion to regulate and limit the scope of the questions

that are put to the accused during cross-examination. Therefore the accused

giving evidence from the witness box will not cause prejudice to him.

Sec 120(6) reads as follows:

―provided that so far as the cross-examination relates to the credit of the

accused, the court may limit the cross-examination to such an extent which it

thinks proper, although the proposed cross-examination might be permissible

in the case of other witnesses.‖

We strongly believe and advocate that the accused should have a right to a fair trial.

Therefore all of us should commit ourselves to discover the aspects of our law that should be

altered order to ensure a fair trial to the accused. We should also device laws that would

protect the accused persons. These are matters that should be deeply analyzed in another



209

paper. The intention behind preparing this paper is to explain the difficulty of administering

justice in a context where dock statements are permitted to be made. Countries like England

allowed the accused to make a statement from the dock then for a variety of reasons. One

such was that the accused was not a competent witness to give evidence from the witness

box. The other reason was to allow the accused to tell his side of the story when he was

denied of legal representation in certain cases. Since these disabilities were removed in

many countries, dock statements were consequently abolished. The origin of this

development commenced in England. Being the fountain of Common Law, England itself

has abolished the right to make a statement from the dock by statute in 1982. The basis for

this shift is the recommendations of the Criminal Law Revision Committee of 1972. Once

these recommendations were made, other countries have also reviewed their laws in relation

to dock statements and consequently even before England abolished the right in 1982, many

other countries had abolished it.

South Africa has abolished the right in 1977. Almost all the states in Australia have

abolished it. For example the State of New South Wales of Australia abolished it in 1994.

Almost all the states in United States of America have abolished it. New Zealand has

abolished it in 1966. Canadian law does not contain any express provision to make a dock

statement. It only states that the accused is a competent witness to give evidence on his

behalf. This position is much similar to the position in Sri Lanka. Yet the Canadian courts

have interpreted that since the right to make a dock statement is not expressly recognized by

statute, it is not available to the accused. Evidently Canada has not decided to adopt English

law in order to fill the lacuna in their statutory law with regard to dock statement. After

contrasting the law in Sri Lanka with that of Canada, Professor G.L. Peiris comments as

follows:

―Notwithstanding the consistency with which this view has been acted upon,

it is submitted that the tainted origin of the principle currently established

detracts from its validity. The reasoning of the Canadian Courts, construing a

statutory provision analogous with that in force in Sri Lanka, could well have

been adopted with advantage in the latter jurisdiction and in other Asian

Countries governed by similar legislation.‖- page 178

Singapore which had been a dominion state of England also abolished the

opportunity to make dock statement. This was done by introducing an amendment to

procedural law.

According to the statute law in India, the accused can give evidence from the

witness box. Then all the parties involved in the case could question him. On the other if the

accused remains in the dock he can answer such questions posed by the judge. The

procedure adopted in India is an unusual as such procedure is not followed by any other

country. The judge is entitled to question the accused when he is in the dock and what would

evidently happen is that the judge will try to ascertain the position of the accused in relation



210

to the main points of the prosecution case. In this situation the counsel for the prosecution

will not be able to cross-examine the accused and the counsel for the accused will not be

entitled to re-examine him either. The accused will not take an oath or an affirmation. This

approach has been criticized by the Indian courts since the scope of the questions which the

judge can ask is not defined and this approach seems to be even more confusing than that of

the Sri Lankan position. Therefore it could be said that the accused in India is at more

disadvantageous position than his counterpart in Sri Lanka. If there are no guidelines

regarding the scope of the questions that could be asked from the accused, the judges at

various courts will interpret their role differently. The prosecution and the defense are bound

to raise criticism against such procedure. Therefore the Indian approach is not suitable to Sri

Lanka.

Many eminent legal scholars have expressed different views regarding the

practice of dock statement in Sri Lanka. Professor G.L. Peiris considers the practice of

making dock statements to be an anomaly in our judicial system since the accused will be

unduly advantaged by not being subjected to cross-examination. Therefore he believes that

the practice should be abolished. According to the law of evidence in Sri Lanka, the

accused is a competent witness to give evidence on his own behalf from the witness box. In

addition, he has the right of legal representation. Therefore there is no legal basis to justify

concept of dock statement. In addition as discussed earlier, a number of anomalies have

arisen as a result of allowing statement from the dock.

In concluding the long analysis that I have made above, I suggest that the right

to make a statement from the dock should be abolished in Sri Lanka. The legal basis for this

suggestion has been deeply analyzed in this paper. Since this practice is widespread and

deeply rooted in the judicial system of our country, one way suggested to do this is to raise

the issue in the Supreme Court in an appropriate case. One may consider this approach to be

cumbersome and difficult. The alternative way is to bring an amendment as section 278(a) to

the Code of Criminal Procedure Act. If this is to be done, an amendment similar in the

nature to that of New South Wales would be more appropriate.

Following is the suggested amendment:

Section 278(A)

“ANY RULE OF LAW OR PROCEDURE OR PRACTICE PERMITTING

A PERSON CHARGED OR INDICTED WITH THE COMMISSION OF

A CRIMINAL OFFENCE TO MAKE AN UNSWORN STATEMENT OR

TO GIVE UNSWORN EVIDENCE AT THE TRIAL IS ABOLISHED”



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Appellate and Revisionary Powers

Of Provincial High Courts

S.T.Jayanaga LL.B. (Ceylon); LL.M. (Colombo)

1. What Is An Appeal?

Definition

“An appeal is the right of entering a superior court and invoking its aid and

interposition to redress the error of the court below.” [ Law Lexicon 1997 Edition]

The term appellate jurisdiction means “the power vested in an appellate court to review

and revise the judicial action of an inferior court, evidenced by an appealable order or

appealable judgment.” [Vide Black‘s Law Dictionary, 5th

Edition page 90] The right of

appeal must be expressly and statutorily stated.

Eg. Section 320 of the Criminal Procedure Code

Maintenance Act –Section 14

Industrial Disputes Act- section 31(D)

Act No.19 of 1990 read with Article 154 of the Constitution

Although the appellate jurisdiction would conceptually include both appellate and

revisionary jurisdiction, the latter is distinct from the former.

2. Revisionary Jurisdiction:

―The power of revision is an extraordinary power which is quite independent of and distinct

from the appellate jurisdiction of this court. Its object is due administration of justice and

the correction of errors, sometimes committed by this court itself, in order to avoid

miscarriage of justice. It is exercised in some cases by a judge of his own motion when an

aggrieved person who may not be a party to the action brings to his notice the fact that,

unless the power is exercised, injustice will result.‖ Meeriam Beebee v. Seyed Mohamed



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68 NLR 36 @ 38

―It is a jurisdiction to safeguard and promote the due administration of justice in general,

and to avoid miscarriage of justice and not merely to ensure that the rights of the parties

are correctly determined. Any uncertainty as to its scope must unhesitatingly be resolved

in favour of a wider, than a narrower jurisdiction.‖ Mrs. Sirimavo Bandaranaike v.

Times of Ceylon Ltd. 1995(1) SLR 22;

‗Revision like an appeal is directed towards the correction of errors but it is supervisory in

nature and its object is the due administration of justice and not primarily or solely the

relieving of grievances of parties.‟ I hold that this mistake committed by the High Court

judge can be considered as an exceptional ground to invoke the revisionary jurisdiction –

Court cannot turn a blind eye when an illegal order has been made by a trial court‘.

Seelathevan v. Attorney general [2011] 2 SLR 243

3. Distinction between Appellate and Revisionary Powers:

1. The main distinction is that revisionary powers are wider in scope than those

of appeal. Sirimavo Bandaranaike (supra)

2. Only a party to an action or a proceeding in an inferior court can invoke the

appellate jurisdiction of a superior court. [ There are however some exceptions

– vide section 754(2) of the Civil Procedure Code]

Revisionary powers may be exercised even on the application of a person who

is not a party to the proceeding in the lower court, if such party is aggrieved by

the order. – Appuhamy v. Weeratunga 23 NLR 467

3. A party seeking to invoke the appellate jurisdiction must have a right of appeal

expressly created and granted by statute. Such right can never be implied. –

Martin v. Wijewardana 1989 (2) SLR 409

Eg. Section 3 & 4 of the High Court of The provinces (Sp. Pro.) Act No. 19 of

1990.

Gunaratna v Thambinaygam & Others [1993] 2 SLR 355

Malegoda v Joachim [1997] 1 SLR 88

Sumanadasa v. Hathurusingha [1995 ] 2 SLR 17

Revision is a discretionary remedy. As such revision is not available as a

matter of right.

4. In certain instances the law specifically has taken away the right of appeal.

Eg. Section 74(2) of the Primary Courts Procedure Act No.44 of 1979

Or sometimes it is restricted

Section 31 (D) of Industrial Disputes Act restricts the right of appeal to a



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question of law; Note sections 317 and 318 of the Cr.P.C ( Criminal Procedure

Code)

Revisionary powers remain intact unless taken away by the constitution. Even

when the law says that in a given situation there is no right of appeal, still

relief may be granted in revision. Even when the law says that the judgment of

the lower court is final and conclusive a superior court having revisionary

jurisdiction can interfere with the judgment by way of revision.

Sunil Chandra Kumar v. Veloo 2001 (3) SLR 91

Srimavo Bandranaike case cited above

Somawathie v. Madawala 1983 (2) SLR 15

5. Time limits for preferring the appeal is also generally specified by the statutes

which grant the right of appeal. If the time limits are not adhered to, the appeal

is out of time and is liable to be rejected.

eg. 14 days for an appeal from an order made by the magistrate‘s court [vide

section 320 (1) of the Cr.P.C]

Since revision is a discretionary remedy there is no prescribed time limit.

The general rule is that the petitioner must make the application at the first

available opportunity or within a reasonable time or without unnecessary

delay. These are issues depending on the circumstances of each case.

Biso Menike v. Cyril de Alwis (1982) 1 SLR 368

Ganapandithen & another v. Balanayagam & Another (1998) SLR 391

6. Procedure for filing valid appeals is laid down by the statutes which grant the

right. If the proper procedure is not followed there is no valid appeal.

Judges of the Supreme Court have prescribed the manner in which a revision

application should be made. These rules are known as Court of Appeal

(Appellate Procedure ) Rules of 1990. If a person failed to comply with these

rules he will not ipso facto lose his application. The court has power to allow

that person to cure the defect in his application,

Kiriwanthie and another v. Navaratna and another, 1990 (2) SLR 393

Read v. Samsudeen [1895] 1 NLR 292

‗it is not the duty of a judge to throw technical difficulties in the way of

the administration of justice, but where he sees that he is prevented from

receiving material or available evidence merely by reason of a technical

objection, he ought to remove the technical objection out of the way upon



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proper terms as to costs and otherwise.‘ The reference is clearly and

indication that where the spirit of the law is vanquished the law itself is

diminished to that extent.

7. The revisionary powers are so wide that the superior court by exercising its

superior power can call for the record of the lower court on its own volition, to

satisfy itself as to the legality of the proceedings, even if there is no application

made by a petitioner.

Relief by way of revision is available even when there is no right of appeal or

when such right has been specifically taken away. –Ranasingha v. Henry 1

NLR 303

Where the appeal has been rejected on technical grounds relief may be granted

by way of revision. Soysa v. Soysa 2000 (2) SLR 235

Power of revision is available even when an appeal lay but for some reason not

taken. A.G. v. Podisingho 52 NLR 536

Supreme Court acting in revision can vary or set aside its own decision made in

appeal. Potaman v. J.P.Dodangoda 74 NLR 115

8. Powers of revision will be exercised only in exceptional circumstances. The

existence of such circumstances is a precondition for a revision and the absence

of such circumstances may result in the dismissal of the application. It is

available in exceptional circumstances even though the law provides alternate

remedies.

Jonita v. Abeywickrama V Sris. L.R. 22

Cadiramanpulle v. Ceylon Paper Sacks Ltd. 2001 (3) SLR 112

Dharmaratna v. Palm Paradise Cabanas Ltd. 2003 (3) SLR 24

9. Where an appeal is preferred by a party in the exercise of a right of appeal is

pending, revisionary powers can be exercised if it appears that the result of the

appeal would be rendered nugatory, if relief by way of revision is not granted.

Athokorala v. Samynathan 41 NLR 165

4. Appellate Jurisdiction of the Provincial High Court

The 1978 constitution enacted that the highest Court of First Instance exercising

criminal jurisdiction and created by law shall be called and known as the ‗High Court of The

Republic Of Sri Lanka‘. By the 11th

amendment to the constitution Article 111(1) was



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amended to read as ‗There shall be a high court of Sri Lanka which shall exercise such

jurisdiction and powers as parliament may by law vest and ordain‘. Thus the 11th

amendment paved the way for Parliament to confer appellate and revisionary jurisdiction on

the High Court.

The 13th

amendment to the constitution by article 154 P (1) brought into existence

a Court known as the ‗Provincial High Court‘ [154P(3) (b)] which conferred appellate and

revisionary jurisdiction,- the starting point of the provincial high courts appellate and

revisionary jurisdiction.

i. Right of Appeal to PHC against orders entered or imposed by

Magistrates Courts and Primary Courts

This right is given by Act No19 of 1990 when read with article 154(P),

Section 4 of the above Act stipulates that „ A party aggrieved by any conviction ,

sentence or order, entered or imposed by a magistrate‟s court, a primary

court etc………appeal therefrom to the High Court established under article

154 (P)‟

154P(3)(b) reads as follows:

―Notwithstanding anything in Article 138 and subject to any law, exercise,

appellate and revisionary jurisdiction in respect of convictions, sentences

and orders entered or imposed by Magistrates Courts and Primary Courts

within the Province.‖

ii. Right of Appeal to PHC against orders of the Labour Tribunal:-

Parliament by the High Court of the Province (Special Provisions) Act No.

19 of 1990 conferred on the PHC jurisdiction to hear and decide appeals and

revision applications against the orders of Labour Tribunals situated within the

Province. This law came into operation on the 15th

of May, 1990.

Industrial Disputes (Amendment) Act No.32 of 1990 repealed section

31(d) of the original Act and introduced a new section and thus removed

jurisdiction of the Court Of Appeal in respect of such orders and vested appellate

jurisdiction exclusively on the PHC. (Note: below-Civil Appellate High Courts)



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iii. Agrarian Services Law:

Act No.19 of 1990 vests the Provincial High Court with the appellate

jurisdiction in respect of orders made under section 5 & 9 of the Agrarian Services

Act. However, Agrarian Services amendment Act No.4 of 1991 removed the

appellate power vested in the PHC against the orders made under section 5 & 9 and

the new agrarian services act No.46 of 2000 expressly conferred a right of appeal to

the court of appeal. Accordingly, PHC does not now have appellate or

revisionary jurisdiction in respect of agrarian matters.

iv. Workmen’s Compensation (Amendment) Act No.15 of 1990

This Act provides that an appeal against the order of the commissioner of

Workmen‘s Compensation can be made to the PHC within whose jurisdiction the

aggrieved party resides.

v. Maintenance Act No. 37 of 1999

Any person dissatisfied with any order made by Magistrate under section

2 & 11 of the Act, may prefer an appeal to the PHC. Now the Court of Appeal has

no appellate jurisdiction in respect of the orders in maintenance cases. Section

14(1) of the Act gives the right of appeal. An order under section 2 is an interim

order which nevertheless can be appealed against.

vi. High Courts Hearing Civil Appeals:

Article 154P (3) (c)

―PHC (Provincial High Court) shall ‗exercise such other jurisdiction and

powers as Parliament may by law provide‖

This sub article empowered the parliament to confer any other jurisdiction

on the PHC without having to amend the constitution.

High Court of the Province (Special Provisions) (Amendment) Act No. 54

of 2006. This amending Act further amended Act No.19 of 1990 and vested the

provincial High Courts with the appellate and revisionary jurisdiction in respect of

judgments etc., made by the District Courts and family courts within the province.

These courts are popularly known as ‗Civil Appellate High Court of the Province‘

These courts currently hear appeals against orders made by the District

Courts of the provinces and the bench comprises of two judges.



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Revisionary Jurisdiction of provincial High Courts:

Article 154 P (3) referred to above and section 3 of PHC (Sp.Pr.) and Act 19 of

1990 conferred upon the Provincial High Court revisionary jurisdiction in respect of the

decisions of the Magistrates Courts, Primary Courts and Labour Tribunals situated

within the province and in respect of orders made under section 5 and 9 of the agrarian

services Act in respect of lands situated within the province. As pointed out earlier both

appellate and revisionary jurisdiction in respect of orders made in terms of section 5 & 9 of

the Agrarian services Act have been removed by the Agrarian Services Act No. 46 of 2006

Article 138 of the Constitution specifies the Appellate and Revisionary Jurisdiction

of the court of appeal. However, article 154 P of the constitution stipulates that,

‗notwithstanding anything in article 138 and subject to any law, High Courts established

under article 154 P shall exercise, appellate and revisionary jurisdiction in respect of

convictions, sentences and orders entered or imposed by Magistrates Courts and primary

Courts within the province‖

High Court of the Provinces (Special Provisions) Act No 19 of 1990 was passed to

make provision regarding the procedure to be followed and to give the right of appeal to and

from the high court established under 154 P. Section 5 of this Act n states that,

―Provisions of written law applicable to appeals to the Court of Appeal, from the

convictions, sentences or orders entered or imposed by a magistrates court, and to

the applications made to the court of appeal for revision of any such conviction

sentence or order shall mutatis mutandis, apply to the appeals to high court

established under article 154 P and to application made to such high court for the

revision of any such conviction or sentence or order.‖

Thus the procedure that was followed in relation to the appeals and applications for

revisions to the court of appeal shall mutatis mutandis apply to appeals and revisions to the

PHC.

Consequence of filing an Appeal or An Application for

Revision

The ordinary rule is that once an appeal is taken from the judgment and decree of

an inferior court, the jurisdiction of that court in respect of that case is suspended except of

course, in regard to matters to be done and directions to be given for the perfecting of the

appeal. ‗ The effect of a right of appeal is the limitation of the jurisdiction of one court and

the extension of the jurisdiction of another‘ It follows as a corollary that on that right being

exercised the case should be maintained in status quo till the appeal court has dealt with it.

and given its decision‘.



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Edward V. de Silva 46 NLR 342

This decision was followed in

Waseela Umma v. C.S.M.Sally 56 NLR425

It was observed in Waseela Umma‘s case that the same principles apply even when a

revision is preferred against an order of an inferior court.

Kanthilatha v. Wimalaratna (2005) 1 SLR 411 in this case Justice Gamini Amaratunga

extended the above principle to an application for revision in no uncertain terms as follows:

―Several Revision applications that have come before this court indicate that in

such situations some original court judges have taken the view that in the absence

of a direction from the court of Appeal directing the stay of execution pending

appeal the order appealed against is executable, With respect, this is an erroneous

view‖

This case was overruled by a decision of a divisional bench of the court of appeal in the

case of Jayantha Wickramasingha Gunasekara v. Jayathissa Wickramasingha and

others CA (PHC) Appl. 17/2006 Order delivered on 30/9/2011

Their lordships have adverted to the position of the law before the PHC was given

revisionary jurisdiction and noted that any person aggrieved by the order of the primary

court could invoke the revisionary jurisdiction of the Court of Appeal. Any person

dissatisfied with the order of the Court of Appeal acting in revision had to seek special leave

to appeal from the supreme-court within 42 days. Party aggrieved by the judgment of CA

had to apply for stay of proceedings till special leave is granted. Thus mere lodging an

application for special leave to appeal invoking the jurisdiction of the supreme-court, does

not ipso facto, stay the order of the Court of Appeal. It does not stay the execution of the

judgment. This shows that even prior to the recognition of the revisionary powers of the

High Court in terms of article 154 P (3) (b) of the Constitution the rule was to execute

the judgment and exception was to stay proceedings.

The ratio decidendi of this judgment (exclusively) limits itself to the matters set out

in chapter VII of the Primary Court Procedure Act.

Therefore the law as it stands today could be summarized as follows:

An appeal is the termination of the jurisdiction of one court and extension of the

jurisdiction of another

Filing of an appeal to PHC from the exercise of the criminal jurisdiction of the

Magistrate‘s court will ipso facto stay the execution of proceedings. S.323 of the

Criminal Procedure Code

The filing of an appeal in other matters will generally suspend the execution of the



219

order appealed from, unless there is express statutory provision which

empowers the original court to execute the order in spite of the appeal.

Eg:

1. Maintenance Act No.37 of 1999 section 14(1) Unless the high court directs

otherwise the mere fact of filing the appeal will not ipso facto suspend the

operation of the order of the magistrate.

2. Section 31 D of the Industrial Disputes Act (Chap 152) as amended by Act

No.11 of 2003, which requires the employer to deposit any compensation

ordered with the President of the Labour Tribunal as a prerequisite to file the

appeal.

In any case filing of an application for revision will not Ipso facto suspend the

order of the original court.

Procedure of Appeals and Revision Applications

Section 5 of the HCP (Sp. Pr.) Act No.19 of 1990 stipulates that the provisions of

written law applicable to appeals to the Court of Appeal shall apply mutatis mutandis to all

appeals and to revision applications. The procedure for filing appeals is to be found in

statutes creating or granting a right of appeal. Eg. Act No.15 of 1979 and Industrial Disputes

Act etc. With regard to revision applications the rules applicable are the Court of Appeal

(Appellate Procedure) Rules of 1990.

A person seeking to invoke the appellate or revisionary jurisdiction of the

provincial High court must fundamentally satisfy himself on three basic facts.

1. Whether such PHC has territorial jurisdiction to entertain and hear such appeal

of application?

2. Whether the appellant has a right of appeal?

3. Whether the procedure laid down for preferring an appeal and making an

application for revision has been properly and accurately followed.

Form of a petition of Appeal and Revision Applications:

Form of a petition of appeal is given in second schedule form 16 of the Code of

Criminal Procedure Act No.15 of 1979. This could be used as a guide. Petition must bear

an uncancelled stamp to the value of Rs.10/-. An important question that has arisen in recent



220

times is that, whether a lawyer‘s certificate, stipulated in section 322(2) of the above Act is

mandatory? Old Criminal Procedure Code 15 of 1898 which was last amended by Act

No.11 of 1954 (which resembles the present Act substantially and was repealed by

Administration of Justice Law in 1974. The present Act was passed in 1979 by repealing the

Administration of Justice Law) the form of a petition of appeal was given in form 12. In

which a certificate from the lawyer stating that

―I certify that the matter of law stated in the ……. Ground of appeal is a fit

question for adjudication by the supreme court.‖

was included. Thus, it was then a necessary ingredient of a petition of appeal. However in

form 16 which is found in Act No.15 of 1979 this requirement is deliberately omitted.

This change must be given effect to. Recently this matter became a subject of contention in

a number of appeals. As was pointed out earlier in some instances the right of appeal is

restricted to a point of law [eg. Industrial Disputed Act]. It was argued that in such instances

the certificate is mandatory. It was also held in some cases that in all appeals the certificate

is mandatory. There is a lengthy Cursus Curiae on this issue. A judicial trend could be seen

by studying the decided cases to do away with the requirement of the certificate. The

following cases are important.

United Workers Union v. Ceylon Fisheries Corporation and another 2 Srisk.

L.R.62

This was an appeal against the order of a Labour Tribunal. Objection was taken that

the petition of appeal should be rejected as it did not bear the certificate. Objection was

overruled. Justices L.H. de Alwis and J.Abeywardana held that a certificate is not necessary.

Thavarayan and Two Others v. Nalakrishnan [1984] 1 SLR 189

‗In terms of the requirements of S 322(2) Of the Code of Criminal Procedure Act

read with S 31 D 2 and 5 of the Industrial Disputes Act an appeal from an order of the LT

must be on a question of law only, certified by an Attorney At law as a question of law fit

for adjudication by the Court of Appeal. The petition of appeal did not bear such a certificate

by an Attorney At Law and on this ground alone must be rejected.‘

General Manager Ceylon Electricity Board & Another v. V.P.Gunapala BASL

News 1991 March -Justice Gunasekera held as follows

―In regard to the second objection it is my view that there is no legal requirement to

state the question of law in the petition as long as on a reading of the petition it is clear that

there are points of law to be determined‖

T.G.N.Vasantha v. OIC Police Seeduwa BASL News March/August 2007

In this case Justices J. Balapatabedi and Eric Basnayake held that ―the certificate is



221

needed only on a situation where an appeal could be made on a point of law. Any party is

entitled to appeal against any judgment on any error of facts as well. In such a situation no

certificate need be filed.‖

It is respectfully submitted that the view taken by justice Gunasekera and Justice de

Alwis is the better view. It is also compatible with the fact that Act No.15 of 1979 has

deliberately omitted the certificate from the form of the petition of appeal and also the fact

that our courts are reluctant to dismiss matters that are brought before them without a

hearing being given. One does not know whether the above two cases have been cited

before their lordships in Vasntha‘a case (which is the latest in point of time). It appears that

those two cases have not been cited. To summarize the law as it stands today, although the

certificate is not necessary, but in the light of the decision in Vasantha‘s case, it is safe to

include the certificate in matters where the right of appeal is restricted to a point of

lawonly. In other instances such certificate would not be necessary.

Final Order

An appeal from an order of a magistrate‘s court shall be made within fourteen days

from the date of the order. An appeal could only be made against a „judgment‟ or a „final

order‟ by a person aggrieved who was a party to the case.[ section 320(1)] Computation of

time is given in section 321 (1) An appeal against an order of a Labour Tribunal shall be

made within thirty days of the date of the order. In computing the time the date on which the

order was made is included Sundays and Public holidays are excluded. If the appeal is

preferred by the employer and compensation has been ordered the full amount should be

deposited in cash as security at the tribunal and a certificate issued by the president to that

effect should not only be annexed to the petition of appeal but should also be averred

therein. When reinstatement is ordered equivalent of a year‘s salary or wages at the date of

termination of services must be deposited [section 31(D) of the Industrial Disputes Act]

When an appeal is filed, it is numbered and listed for hearing. The appellant will be

heard first and the respondent thereafter. If the appellant is not present court is required to

consider the appeal and make such order as it deems fit [section 325] Thus court cannot

dismiss an appeal for want of appearance.

In considering whether an order is a final order or not regard must be had to

the effect of the order. An order which does not dispose of the case, but merely suspends

the date of hearing is not a ‗final order‘. There is no definition of ‗judgment‘ given in the

Act. Some idea can be obtained as to what ‗order‘ constitutes a final order, by studying the

case of Anuruddha Ratwatthe & another v. The Attorney General 2003(2) SLR 39 In

this case the accuseds were remanded by the High Court on the day the trial commenced.

The appellants lodged an appeal against the order remanding them. High Court rejected the

appeal on the ground that the order was an ―interim Order‖ against which there is no right of

appeal. It was held by a bench of five judges that the order was a ‗final order‘ (in respect of



222

bail) appealable under section 451(3) of the code. His lordship Chief Justice Sarath N

Silva made the following observation

―The word ‗order‘ is not defined in the Code of Criminal Procedure Act. In the

circumstances it should in its ordinary sense be taken to mean a formal expression of

decision made by Court in respect of any matter together with the reasons for such decision.

An interim order is one made pending a final order in the same matter. Whether a

decision is to be considered as an order operating as an interim order or not has to be

considered from the perspective of the effect that order has, in respect of the matter pending

before Court and the parties to whom it relates.

In this instance the order of the High Court refusing the application for bail has the

effect of the accused being incarcerated and thereby deprived of their personal liberty.

Every day spent in incarceration constitutes deprivation of personal liberty. Looking at

the matter, from this perspective it is clearly seen that the order is final in its

effect………………….An appeal addressed to a superior court should as a rule be

submitted to that Court except where specific provision is made empowering the original

court to reject such an appeal.‖

Until recently, a view was held that the order of conviction is not a ‗final order‘.

The appeals lodged after conviction before sentence were rejected or sent back for

sentencing. This has resulted in a serious injustice. The conviction may be blatantly

wrongful. If the accused waits for the sentence he may entail a custodian sentence. Some

magistrate‘s as a rule do not grant bail pending appeal. Thus the accused will have to prefer

an appeal from jail. By the time appeal is disposed of the accused has spent the jail term. At

the end if the high court decides that the conviction was bad and acquit the appellant, is of

no avail. Who will compensate for the time the accused spent in jail? What about the

damage sustained by going to jail? The loss of reputation and ignominy suffered not only the

accused but also his children and family members. An irreparable damage is eventually done

in a matter where the learned magistrate has erred and had made a perverse, wrongful and

illegal order. This controversy was put right by Justice Thilakawarda in a recent case. In

here exhaustive judgment she made the following observations.

‗The purpose and ambit of section 4 of the High Courts of the Provinces (Special

provisions) Act No. 19 of 1990 is to grant a party aggrieved by any conviction,

sentence and /or a substantive right to appeal therefrom‘

‗the right of appeal is a fundamental human right enshrined by domestic and

international law. Article 12 of the Universal declaration of Human rights has

guaranteed the right to a fair trial, which includes the right for a review of that trial.

‗In terms of international law there is a right of appeal both after conviction as

well as after sentence and when such cases came as two separate appeals should



223

be consolidated and treated as one case‘.

Her ladyship also referred to section 31 of the judicature Act which states that „Any

party aggrieved by any conviction, sentence or order entered or imposed by a

magistrate‘s court may subject to the provisions of any law appeal there from to the court of

appeal in accordance with any law, regulation of rule governing the procedure and manner

for so appealing.‟ Gunasekara v. A.G SC Appeal No.114 A/2011 ; Sc Appeal 115/2011

Hc Chilaw and Mc Marawila [This case is reported in The Bar Association Law Journal

2012 at page 215]

Thus the law is now settled, that an appeal lies from a conviction of a

magistrate court before sentence is passed. Eventually when the sentence is passed which

if according to law is excessive the accused can prefer a second appeal against the sentence.

Appeals from orders made by PHC

A party aggrieved by an order made by the PHC in the exercise of its appellate

jurisdiction may now appeal there from to the Supreme Court with leave obtained either

from the PHC itself or from the Supreme Court. See Abeywardana v. Ajith de Silva 1998

(1) SLR 134. (This is a decision by a bench of five judges of the Supreme Court) An appeal

from an order of the PHC in the exercise of its revisionary jurisdiction should be made to the

Court Of Appeal. The petition of Appeal should be filed of record in the PHC. See also

Gunaratna v. Thambinayagam (1993) 1 SLR 134

Time frame for appeal to the supreme Court-

Question arose in fixing the time within which the appeal is to be filed in the

Supreme Court from PHC after obtaining leave. The rules were found to be silent on this

matter.

In the case of Polwatta Gallage Samantha Kumara v. Illandari Devage Inoka

Manohari SC Appeal No. 44/2005 [HC Kalutara 118/2003 & MC Mathugama Case

No.13390] Justice Raja Fernando, having observed the lacuna (regarding the time frame),

pronounced the following judgment regarding the period of time within which a petition of

appeal should be filed in the Supreme Court after obtaining leave.

―An appeal to the Supreme Court from an order of the provincial High Court

can be either with the leave of the Provincial High Court or with special leave obtained

from the Supreme Court upon a refusal of leave by the High Court.

……………………………………………….…………. A question arises in fixing the

time within which the appeal is to be filed in the Supreme Court for the reason that the



224

Rules are silent on the matter…………………… In determining the time for an

aggrieved party to lodge an application for special leave to the supreme Court where

no time limit is fixed either in the statute or rules ; this court has in the case of Tea

Small Holders Ltd. v. Weragoda (1994) 3 SLR 353 and in the case of Mahaweli

Authority of Sri Lanka v. United agency Construction (Pvt.) Ltd. (2002) 1 SLR 8 held

that the petitioner should make his application within a reasonable time, and relying on

the time period prescribed in the rules for similar applications has held that 42 days is

reasonable time ―

―On the same reasoning I am of the view that the time frame for a

petitioner to file an appeal should be 42 days from the date leave to appeal is

granted.”

Thus a longstanding lacuna with regard to the time frame of filing the appeal from

the PHC to the Supreme Court has now been settled.

Applications for Revision:

An application for revision consists of a petition and an affidavit. The petitioner

is the person making the application. He may also be called the applicant. As was pointed

out earlier one cannot invoke revisionary jurisdiction as a matter of right. The applicant has

to satisfy court that there is a prima facie case which justifies interference by the appellate

court. The applicant has to make every party that would be affected by the order of the

appellate court, respondents in the application. Why an affidavit? It is the evidence that is

placed by the applicant before court for it to consider the application. If the court holds that

there is no merit in the application, it may dismiss the application without notice to the

respondents. It is important that in these maters too the courts expect from the applicant

Uberrimae Fidei. That is, he must disclose all the facts. As explained earlier revision is a

discretionary remedy. The applicant can ask for interim relief if he can show court that

without the interim relief the final order will be rendered nugatory. He must also show the

exceptional circumstances and should be able to convince the PHC that the order of the

magistrate court if allowed to stand would result in a serious failure of justice, and therefore

intervention of the PHC is necessary. The procedure when interim relief is asked for is

different and the applicant is required to take some extra steps as found in the Appellate

Procedure Rules (cited below).

The procedure in making revision applications is given in The Court Of Appeal

(Appellate Procedure) Rules 1990. See Rule 3(b). Failure to comply with these rules may

result in the application being dismissed. Justice Mark Fernando after analyzing all the past

cases on the issue decided in the case of Kiriwanthie & another v. Navaratna & another

(1990) 2 SLR 393 that the rules must be normally complied with at the time of filling.

These rules should not be mechanically applied. It is sufficient if there is substantial

compliance. This being judged in the light of the object and purpose of the rule. It is in the



225

discretion of court to excuse the non- compliance or to impose sanction. Dismissal was not

the only sanction. This aspect was dealt in full in para 3(6) above.

An important averment that must be included in a revision application is that the

petitioner had or had not invoked the jurisdiction of the appellate court previously on the

same matter. If it had been invoked then the petition must contain an averment disclosing

relevant particulars of the previous application.[ Rule 3 (2) of The court of appeal

(Appellate Procedure ) Rules 1990].

Conclusion

Whatever be the rules that may have been promulgated the power of revision is so

wide and varied that, it is entirely in the discretion of court whether to disregard the rules

and proceed with an application if the court feels that justice according to law demands its

intervention and nothing less. This view has been affirmed in Kiriwanthi‘s case (op.cit.) in

which their lordships have, in effect held that the rules are directory and not mandatory.

Justice Sharvananda observedin the case of Mackinnon Mackenzie & Co. v. Grindlays

bank Ltd. (1986) 2 SLR 273 that ‗the rules of procedure have no other aim than to

facilitate the task of administering justice.‘ In the case of Distilleries Company Ltd. v.

Kariyawasam & others (2001) 3 SLR 119 Justice Nanayakkara held that ‗ The object of

the civil procedure Code is to prevent civil proceedings from being frustrated by any kind of

technical irregularity or lapse which has not caused prejudice or harm to a party. A rigid

adherence to technicalities should not prevent a court from dispensing justice. The court

should not approach the task of interpretation of a provision of law with excessive

formalities and technicality. A provision of law has to be interpreted contextually giving

consideration to the spirit of the law.‘ Afortiori then, when the PHC in the exercise of its

revisionary jurisdiction cannot ignore and allow an injustice to prevail for non-compliance

with the rules, when the order complained of is so patently illegal, vexatious, arbitrary and

has caused a failure of justice. When one weighs rules on the one hand and justice on the

other, scales will naturally tilt in favour of justice.

There really can be no peace without justice. There can be no justice without truth. And

there can be no truth, unless someone rises up to tell you the truth.

- Louis Farrakhan

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Administration of Justice

Basic Institutional Arrangements

Justice P.W.D.C. Jayathilake

Judge of the Court of Appeal

The Courts of first instance for the administration of justice in the Republic of Sri Lanka

(as provided by the Judicature Act No: 2 of 1978) shall be;

a) The High Court of the Republic of Sri Lanka

b) The District Courts

c) The family Courts

d) The Magistrate Court

e) The Primary Court

Sri Lanka is divided into Judicial Zones, Judicial Districts and Judicial Divisions for the

purpose of the administration of justice and territorial limits of those Zones, Districts and

Divisions shall be determined by the Minister of Justice from time to time in consultation

with the Chief Justice and the President of the Court of Appeal. A judicial zone may

comprise of one or more judicial districts whilst a judicial district comprises with one or

more judicial divisions. There may be one or more judicial zones within a province.

The High Court of Sri Lanka became the Provincial High Court with the introduction of the

Provincial Council System by the 13th

amendment to the Constitution of the Republic of Sri

Lanka in order to devolve the powers of the state. The High Court of the Republic of Sri

Lanka consisted of not less than ten and not more than sixteen judges at its commencement

in 1978. The number of judges was subject to change from time to time resulting in a rise to

75 at present. However, since no amendment was brought to change the minimum number,

ten shall still be considered the minimum.

There shall be a High Court for each province and each such High Court shall be designated

as the High Court of the relevant province as provided by article 154 P (1) of the 13th

amendment. i.e. The ‗High Court of Western Province‘. Such number of judges as may be



227

necessary to each such Provincial High Court shall be nominated from among judges of the

High Court of Sri Lanka by the Chief Justice.

Section 5(1) of the Judicature Act provides that there shall be in each Judicial District in Sri

Lanka, a District Court and a Family Court and in every judicial division a Magistrate‘s

Court and a Primary Court. The same section further provides that each such court shall be

holden by and before one person to be called the ―District Judge‖, ―Judge of the Family

Court‖, ―Magistrate‖ and ―Judge of the Primary Court‖ respectively. It is the Minister of

Justice who shall by regulations from time to time determine such convenient place or

places within such judicial district or division where each court to be held. But the power

possessed by every judge to hold court at any convenient place within his territorial division

has not been restricted.

Judicial Officers

The term, ―Judicial Officer‖ is defined in chapter 22 of the Constitution of the Republic of

Sri Lanka. Accordingly, judges of the Supreme Court and judges of the Court of Appeal,

judges of the High Court and any judge, presiding officer or member of any other court of

first instance are judicial officers in addition to other presiding officers or members of the

institutions created and established for the administration of justice.

The powers of appointment, promotions, transfers, disciplinary control and dismissal of

judicial officers have been entrusted with the Judicial Services Commission by article 111 H

of the Constitution. But the judicial officer referred to in the above article defined by article

111 M (a). According to the said interpretation, judicial officer means any person who holds

office as ―judge‖, ―presiding officer‖, or member of any court of first instance, tribunal or

institution created and established for the administration of justice or for adjudication of any

labor or other dispute but does not include a judge of the Supreme Court or of the Court of

Appeal or of the High Court. Accordingly, the judicial officers of the court of first instance

other than the High Court are appointed by the Judicial Service Commission.

The Judicial Service Commission may make rules regarding the schemes for recruitment

and training appointment, promotion and transfer of judicial officers. As per the regulations

made under such power, the judicial officers of the court of first instance other than the High

Court are appointed to Sri Lankan Judicial Service by the JSC. Such officers belong to five

ranks of classes and grades, namely, special class, class I grade I, class I grade II, class II

grade I and class II grade II. Prior to the establishment of Sri Lanka Judicial Service in

above manner, appointments were made according to the designation and the grade of the

particular Court. Those designations were namely, District Judge – special grade, District

Judge – grade I, District Judge – grade II, Magistrate and Judge of the Primary Court. The

classes and grades mentioned above were crated as to be parallel to the following

designations.



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District Judge - Special grade - Special class of the judicial service

District Judge – grade I - Class I grade I of the judicial service

District Judge – grade II - Class I grade II

Magistrate - Class I grade II

Judge of the Primary Court - Class II grade II

In practice, class II grade II appointments are at present not made. The reason for this is that

separate courts, do not operate by the name of ―Primary Courts‘. It has been provided in the

Judicature Act that when there is no Primary Court Judge appointed, the Magistrate of such

division shall exercise all jurisdiction of the Judge of the Primary Court. Therefore

appointments of judicial officers are made by recruiting to class II grade I of the judicial

service. Even though said grade is parallel to the designation of Magistrate, such officers are

directly appointed to the courts of higher grade, namely, District Magistrate Court and

District Court as the occasion may require. Judicial Service Commission is empowered to

make such appointments under section 6(1) of the Judicature Act.

While the number of Judges of the Supreme Court and the Court of Appeal is determined by

the Constitution, the number of High Court Judges is determined by the Judicature Act. The

salaries of the Judges of the Supreme Court, Court of Appeal and High Court are charged on

the consolidated fund, but those of the other judicial officers paid under the vote of the

ministry of justice. Therefore, there shall be a cadre approved by the management service

department of the treasury for necessary funds to be allocated. As it is the Minister of Justice

who determines the number of judicial districts and divisions, the ministry of justice is

aware of the carder to be existed. But the Judicial Service Commission has been empowered

to appoint as many Additional District Judges, Judges of the Family Court, Magistrate or

Judges of the Primary Court to the same District Court, Family Court, Magistrate‘s Court

and Primary Court respectively as the occasion may require. According to this, an approved

cadre of the Judicial Officers cannot prevail unless the Judicial Service Commission and

Ministry of Justice Act with mutual understanding and collaboration. There are instances

that Judicial Service Commission appoints ―Super Numery Judicial Officers‖ in excess to

the Additional Judicial Officers of the same station.

Acting Judges

When the Chief Justice or the President of the Court of Appeal temporarily unavailable to

discharge duties and functions of his office, President of the Republic of Sri Lanka shall

appoint another judge of the Supreme Court or the Court of Appeal as the case may be, to

act in the office of the Chief Justice or the President of the Court of Appeal respectively for

such period according to article 109 of the Constitution. If any judge of the Supreme Court



229

or of the Court of Appeal is temporarily unable to discharge duties and functions of his

office, the President may appoint another person to act as the judge of the Supreme Court or

the Court of Appeal during such period. The difference of those two provisions is that in the

first provision, appointing of an acting Chief Justice and an acting President of the Court of

Appeal is mandatory where as in the second, it is optional. As necessity has so far not arisen,

the second provision has not come into effect in practice. In the case of High Court Judges

there is no provision for acting appointments. Instead, the Minister of Justice has been

empowered to make recommendation to the president for appointments of High Court

Commissioners for a period of one year which could be extended so long as it is necessary.

Therefore when a High Court Judge takes leave for a short term and if there is no other High

Court Judge to cover up duties, Registrar of the High Court postpone cases as a practice.

When District Judges and Magistrates are on leave for short terms, acting appointment shall

be made. Even when the said officers are away from their respective stations on weekends

and public holidays, said necessity arises.

There were acting panels of lawyers approved by the Judicial Service Commission for each

Court. It was the practice that when District Judges and Magistrates apply for leave, they

recommended members from the acting panel to be appointed as the Acting District Judges

or Acting Magistrates for the particular stations during the absence of the permanent judge.

Even though there were no hard and fast rules governing the conduct of such Acting Judges,

traditionally they behave themselves in honorary manner. They used to refrain from

accepting cases and their fees from clients and even presenting themselves at their own

offices during such period. Later, it appeared that those traditions were not followed at times

and being a member of an acting panel was used to draw prominence amongst their

colleagues. This situation resulted in the dissolution of acting panels in District Courts and

Magistrate‘s Courts across the island. Therefore, Acting panels of lawyers do not exist at

present unless the JSC circular No: 307 of 12.06.2007 have been followed annually.

Court Staff

Prior to the 1978 Constitution, members of the Court staff were appointed from combined

service recruited by the Ministry of Public Administration. They were attached to the

Ministry of Justice and the Ministry of Justice did the attachment to the court staff and

transfers among and out of the courts. 1978 constitution created the new service namely,

―the Scheduled Public Officers Service‖ for the court staff. It was provided that

“scheduled public officers” shall appointed by the Judicial Service Commission.

Accordingly, appointments, promotions, transfers, exercising disciplinary control and

dismissals of the members of the court staff came under the preview of the Judicial Service

Commission. The term, ―scheduled public officer‖ is defined in article 111 M (a) of the

constitution and their categories in addition to the Registrars are specified in the fifth

schedule, namely, clerks, fiscals, interpreters, stenographers, typists and binders.



230

In 2006, a change was made in the public combined service, converting clerks, typists and

stenographers into a new service called ―Public Management Assistant Service‖ where they

were supposed to discharge a multiple duty including duties of all three categories. In the

PA circular 6-2006 issued revising the salaries of government servants, the said Public

Management Assistant Service was kept on a higher salary scale than the Scheduled Public

Officers Service which was on a higher salary scale prior to the said circular. The reason

given by the Salaries and Cadre Commission to placement of the Public Management

Assistant Service on a higher salary scale was that it was a newly established multiple duty

service. When the officials of the Judicial Service Commission secretariat had discussions

with the Treasury and the Salaries and Cadre Commission in regard to the lower salary scale

given to Scheduled Public Officers Service, it was suggested to convert the categories of

clerks, interpreters, stenographers and typists of Scheduled Public Officers Service to a

multiple duty service to place them on a higher salary scale. Subsequently the Judicial

Service Commission decided to create Court Management Assistant Service incorporating

all those four categories of Scheduled Public Officers and placed them on a higher salary

scale two steps above the Public Management Assistant Service by issuing J.S.C. circular

no. 301. Accordingly, clerks, interpreters, stenographers and typists of the Scheduled Public

Officers are on the same salary scale and are bound to discharge the duties of all those four

categories as the service requirement demand.

Accountants were appointed to High Courts after several decades of establishing the

Scheduled Public Officers Service. Prior to the appointment of Accountants to High Courts,

Registrars of High Courts handled the duties of Accountants. Sometime after the

appointment of Accountants, the Ministry of Justice appointed an Account Assistants to

assist the Accountants. After some time, the Ministry of Justice again appointed the officers

called Development Assistants to the court staff. Therefore, presently, there are officers

appointed by the Ministry of Justice in the court staff in addition to the members of staff

appointed by the Judicial Service Commission. But, according to the interpretation given

to the term “Scheduled Public Officer” in the Constitution, it has to be any Public

Officer employed in the Supreme Court, Court of Appeal or High Court or any Court

of first instance included in the category specified in the fifth scheduled (of the

Constitution) or such other categories as may be specified by order made by the

minister in charge of the subject of justice and approved by Parliament and published

in the gazette.

Justice in the life and conduct of the State is possible only as first it resides in the hearts and

souls of the citizens.

- Plato

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231

The Qualities

Required of a Judge

Nishshanka Bandula Karunarathna LL.M ( Wales )

Solicitor and Barrister (New Zealand)

High Court Judge, Civil Appellate High Court, Gampaha

The judge is "the pillar of our entire justice system," and the public has a right to demand

virtually irreproachable conduct from anyone performing a judicial function. Judges must

strive for the highest standards of integrity in both their professional and personal lives.

They should be knowledgeable about the law, willing to undertake in-depth legal research,

and able to write decisions that are clear and cogent. Their judgments should be sound and

they should be able to make informed decisions that will stand up to close scrutiny. Judges

should be fair and open-minded, and should appear to be fair and open-minded. They should

be good listeners but should be able, when required, to ask questions that get to the heart of

the issue before the court. They should be courteous in the courtroom but firm when it is

necessary to rein in a rambling lawyer, a disrespectful litigant or an unruly spectator.

The Role of the Judge

Judges play many roles. They interpret the law, assess the evidence presented, and control

how hearings and trials unfold in their courtrooms. Most important of all, judges are

impartial decision-makers in the pursuit of justice. We have what is known as an adversarial

system of justice - legal cases are contests between opposing sides, which ensures that

evidence and legal arguments will be fully and forcefully presented. The judge, however,

remains above the fray, providing an independent and impartial assessment of the facts and

how the law applies to those facts.

Many criminal cases - and almost all civil ones - are heard by a judge sitting without a jury.

The judge is the "trier of fact," deciding whether the evidence is credible and which

witnesses are telling the truth. Then the judge applies the law to these facts to determine

whether a civil claim has been established on a balance of probabilities or whether there is

proof beyond reasonable doubt in criminal cases to establish the guilt of the accused.



232

Defendants facing serious offences such as murder, opt to have a jury hear their case. The

jurors become the triers of fact and assess the evidence while the judge takes on the role of

legal advisor, explaining the law to the jurors.

If the defendant is convicted of a crime, the judge passes sentence, imposing a penalty that

can range from a fine to a prison term depending on the severity of the offence. In civil cases

the judge decides whether a claim is valid and assesses the damages, grants injunctions or

orders some other form of redress to the plaintiff. The way in which a judge conceives his

judicial role is the most significant single factor in the whole decisional process.

Role orientations are beliefs about ―the kind of behaviour proper for a judge‖. The attributes

of a good judge include professional, personal, and administrative components. Professional

attributes include knowledge of the law, legal analytic skills, ―good judgment,‖ and

intellectual concentration, whereas personal attributes include such qualities as integrity,

objectivity, and temperament. Many other judges have provided summaries of the qualities

of a good judge, and these usually include professional competence on legal abilities and

intellect, integrity, and judicial temperament. It means the judge should be neutral, decisive,

respectful, and composed. But these qualities are hard to define. Yet we all have a

conception of what a judge should be - a distinguished person presiding over a trial.

The classic image of judge as a neutral arbiter has its roots in the adversary system. The very

conception of courts, and the expectations we have of them, is derived from the adversary

process, especially the criminal trial. Trials are just too slow and costly for resolving the vast

volume of ordinary cases. They are, however, the last resort when all other efforts at

reaching agreement have failed.

Despite their relative scarcity, trials are still used for the ―important‖ high-stakes cases and

―notorious‖ cases. Criminal cases with a considerable public interest would be covered in

the news and perhaps televised. From these television reports, as well as movies, the public

derives its conception of what a judge should be. Full-blown trials exist today, but for a very

small percentage of cases. Yet this image of a judge in trial provides the standard for

measuring all judges.

The role of the judge in the adversary process is to preside over the proceedings and

maintain order. During a trial, the judge rules on whether the evidence the parties want to

use is illegal or improper. If the trial is before a jury, the judge gives instructions about the

law that applies to the case; if the trial is before the court, the judge determines the facts and

decides the case. In a criminal trial, the judge metes out the sentence to those convicted.

Note the role of the judge in this idealized conception, a passive umpire enforcing

procedural rules. For courts to be impartial, judges must be free to decide cases based upon

the laws and facts of the case uninfluenced by either external pressures or internal

preferences. Impartiality is impossible unless judges are independent and free from external



233

threats, intimidation, or fears of sanctions based upon their decisions. In some places in the

world, threats to impartiality can range from direct and drastic, such as threats on a judge‘s

life, to more subtle, such as denial of salary increases, promotions, staff, or equipment

needed to do the job.

Impartiality is also threatened to the extent that judges permit their personal conceptions of

justice to influence their decisions, rather than setting aside personal pre-dispositions in

deference to law as written.

The role of the judge is to apply the law to different sets of facts raised in various cases and

to rule accordingly. This ―law applier‖ role is important to litigants because following

precedent leads to consistency in decision making and, therefore, makes outcomes more

predictable, dispassionate and impersonal, communicating mainly through counsel and

viewing litigants as ―parties‖ in cases. Judges in trials in serious cases must listen intently to

testimony and ensure procedures are fair and impartial, including deciding what evidence to

admit.

The Qualities of a Good Judge

1. Judicial Temperament

This character trait encompasses both the ability to apply the law to the facts and to

understand how a judicial decision will affect the human beings appearing before the court.

It is the ability to communicate with counsel, jurors, witnesses and parties calmly and

courteously, as well as the willingness to listen to and consider what is said on all sides of a

debatable proposition.

A judge should exhibit the following aspects of proper judicial temperament: Patience,

open-mindedness, courtesy, tact, courage, punctuality, firmness, understanding, compassion,

humility and common sense. Those qualities should be demonstrated consistently. These

qualities should have consistently manifested themselves to all the court‘s ―stakeholders‖

interacting with the judge regardless of station in life, profession, type of case,

representation by counsel or lack thereof.

A judicial officer should be able to exercise forbearance under provocation, to deal with

others with sensitivity and without giving offense, and to assimilate data outside the judge‘s

experience without bias and without undue difficulty or stress. A judge should be able to

handle personal stress without unloading it on others; he or she should recognize that the

position is not only stressful but an official governmental position of public trust, with its

business conducted largely in full view; and that criticism and scrutiny are inherent in the

position.



234

2. Intelligence:

This is the ability to know and apply legal rules, analysis and procedures to different facts

and circumstances, and the ability to perceive and comprehend new concepts and ideas

quickly.

3. Ethics:

There should be no doubt about the judge‘s personal or professional ethics.

A judge should have demonstrated a personal standard of ethical conduct that stands out

among both the general citizenry and the fellow practitioners.

4. Courage and Integrity:

Legal ―Courage‖ is ―the willingness to do what the law requires the judge to do even though

the course the judge must follow is not the popular one‖. ―Integrity‖ is not being influenced

by the identity, race, gender, political status, wealth or relationship of the party or lawyer

before the judge. More basically it is not doing what the judge knows to be wrong. A judge

should possess both courage and integrity.

5. Experience and Education:

Prior professional activities, legal education, teaching, bar activities, and publications are

very important. The type and amount of experience necessary varies depending on the

judicial position.

Education and experience might be defined differently for appellate positions. For this

reason, careful attention should be paid when trial court judges apply for appointment to an

appellate court. The qualities which have led to success as a trial court judge may not predict

equal success at the appellate level. Appellate judicial candidates generally should have

credentials as appellate lawyers, both in brief writing and oral argument.

6. Suitability to Workload:

A judge should demonstrate his or her compatibility with the workload of the court. Those

who dislike writing opinions should not be recommended for appellate positions. Those who

dislike domestic cases or traffic cases would similarly be poor choices for the District and

Magistrate courts, respectively.



235

7. Continuing Legal Education:

A judge‘s history of attendance at continuing legal education programs should be considered

as a good indicator or a person‘s interest in remaining vigilant of the law. This factor is

perhaps the best indicator of whether a judge will be motivated to improve his or her

knowledge, willing to continue with his or her ―legal education‖ and be open to new ideas,

evolving attitudes, legal developments, and change in general.

8. Ability to Communicate:

This is the ability to express oneself clearly, concisely, and grammatically, whether orally or

in writing. It includes the ability to listen. All judges must have strong oral and written

skills. Candidates for appellate position require superior writing skills. A candidate for the

trial bench must be able to express him or herself well both orally and in writing.

9. Civic and Professional Responsibility:

This is contribution to the public and the legal profession through organized Bar and non-

Bar service organizations, volunteer activities, civic and cultural organizations.

10. Health:

A judge should be in sufficient physical and mental health to perform the duties of the

office, such that he or she will be able to render vigorous and effective service for the

foreseeable future. A prior history of stress-induced illnesses, migraine headaches, chronic

fatigue syndrome, or poor attendance in the present job should be warning flags and a judge

who is having such a background should not serve as a judge, as the ability to tolerate

conflict, pressure, and stress are essential

11. Character:

This most important overall quality is a key intangible. The judge should be of the best

character. He or she should have a positive reputation in every professional and residential

community. His or her background should be free of references to immorality or

indiscretions. He or she should be free of a history of substance abuse or substance

dependence, and free of indications domestic violence, publicly unacceptable conduct and

the like. Judges should be financially stable.



236

Judicial Role

The criminal justice system would simply break down if most cases went to trial. As case

volume increased, a more streamlined, disposition-oriented process supplanted the adversary

process for ordinary cases. The role of the judge as umpire gives way to reality for observers

more familiar with actual court processes. The reality is the judge in these cases, often does

not adjudicate, but rather compromises, teaches or reconciles the parties before him. The

Judge ratifies the compromise reached by prosecutor or defendant. This latter role is not

trivial because it provides a safeguard that the plea agreement was reached using a fair

process.

Misdemeanour cases have always been handled quickly and summarily without much

technicality. Approximately 80 percent of criminal cases are misdemeanours, and more than

70 percent of them are handled by magistrates in limited jurisdiction courts. These lower

criminal courts hear the bulk of criminal cases, including disorderly conduct, drunkenness,

prostitution, petty theft, and simple assault, and they are the courts with the most contact

with offenders; it is in these courts that the stereotype of ―assembly line‖ justice was created.

The biggest problem with our court system is the volume of cases. The volume is so large

that the courts have to rely on assembly line justice. It really is an assembly line. The police

officer prepares the initial papers and files them with the clerk. The clerk gives the papers to

the prosecutor. The paper then goes to the judge. The judge calls the case. There‘s a brief

discussion at the bench.

Think about this: If a court has 100 cases and each case takes 15 minutes that would take 25

hours. If each case takes only 5 minutes, it still takes 8 hours, so that‘s still not going to

work. Most courts end up at about 1-2 minutes per case. That‘s call assembly line justice.

These types of cases require facts to be established so that the law can be quickly applied;

sentences and financial penalties are limited so that dispositions can be expeditious. It is

better to divide this judicial role into two complementary parts, the ―adjudicator,‖ who

emphasizes deciding cases, and the ―task performer,‖ who emphasizes processing litigation

and maintaining smooth court operations. The ―disposition-oriented‖ or ―administrator‖ role

of this judge is to skillfully apply judicial procedures to achieve swift and consistent case

disposition. Clearing the docket then becomes very important, and the task is processing a

large number of individual cases, a more bureaucratic process not unfamiliar to executive-

branch administrative agencies. Judges must decide large numbers of lower-stakes cases

every day, rather than spending days or weeks on one case at trial, and so the procedures

must be streamlined. Consequently, judges may take a more active role in all phases of case

processing to move the case along while ensuring that the Lawyers, who are devoting the

proper attention to their clients.



237

Judges simply cannot rely on parties to frame disputes. Overcrowded dockets and

―overzealous litigants‖ lead judges to take a more ―active, largely discretionary approach to

pre-trial case management‖. Also it is interesting to find that judges who emphasized the

―administrator‖ role indeed, take a shorter amount of time, on average, to resolve cases.

Timely resolution is a positive outcome if it does not inhibit litigants from seeking

information, including clarification and follow-up questions, or make them feel that their

concerns are not taken seriously.

Judges do not have much time to spend reflecting and contemplating before making

decisions and are impersonal because there is not much time for communication with

litigants, even those who are not represented by counsel.

With the advent of more treatment-oriented problem-solving court processes, judges who

are assigned or more likely volunteer, for those courts assume a more active role as

treatment team leader. Spurred by the perceived inadequacies of the adversary process, some

legal leaders have promoted a more cooperative approach to dispute resolution. Particularly

in family law, once a fertile source of trials, there have been calls to abandon adversarial

proceedings.

Special Courts

Some types of cases, such as those involving juveniles, have never fit comfortably within

the traditional law-court framework. Separate courts for juveniles were created first in

Chicago in 1899 and served as a model for specialized family courts, which have

jurisdiction over not only juvenile cases, but also other cases affecting the family from

divorce to domestic violence. More recent ―problem-solving‖ courts originated from the

efforts of practical, creative, and intuitive judges and court personnel, grappling to find an

alternative to revolving door justice, especially as dispensed to drug-addicted defendants.

From the opening of the first drug court in, Florida in 1989, drug courts spread rapidly based

upon anecdotal reports of success in reducing recidivism and the infusion.

By the end of 2009, there were 2,459 drug courts and an additional 1,189 problem-solving

courts in the United States, such as mental health, domestic violence, truancy, child support,

homelessness, prostitution, re-entry, and gambling courts. The term ―problem-solving

courts‖ has passed into the language, even though most are not separate courts but separate

dockets or calendars of larger courts or divisions. In most instances, they involve a single

judge periodically handling a single type of case.

Problem-solving courts require judges to be more active, less formal, and personally

engaged with each offender, which creates a tension with the traditional role of the judge as

a detached, neutral arbiter. Indeed, the problem-solving judge going beyond ―situation



238

oriented‖ judge not only by taking into account the impact of their decisions on the litigants,

and perhaps the public at large, but also by becoming a partner in a ―therapeutic-oriented

response‖ to the litigants‘ underlying problems. The tension of these ―polar-opposite roles‖

provides the base for the charge that problem-solving judges become ―social workers‖ or

―therapists.

The judges often have an unusual amount of information about the people who appear

before them. These people, who are often called clients, rather than defendants, can talk

directly to the judges, rather than communicating through lawyers. And the judges monitor

these defendants for months, even years, using a system of rewards and punishments, which

can include jail time. Judges also receive training in their court‘s specialty and may have a

psychologist on the staff.

These judges are interested in the litigant‘s welfare, often making direct inquiries of

the litigant. Decisions are made in language understood by the parties, and there is open

communication because litigants can tell their stories. The judge may have direct dialogue

with the litigants, in direct opposition to the traditional conception of judge as passive

recipient of information from Lawyers. For example, problem-solving judges need to praise

and sanction defendants, rather than remain aloof, but this active engagement could create

the perception that they are not impartial. The problem-solving judge role is most

appropriate for special-jurisdiction courts.

Judicial Independence

The judiciary is independent from other branches of government. Therefore, judges are in "a

place apart" from the other institutions of our society. Governments appoint and pay judges,

but once appointed judges are shielded from bureaucratic control. Judges must be able to

make courageous, even unpopular decisions knowing that no one - a chief justice, another

judge, a government official or even the most powerful politician - can fire them or cut their

salaries as retaliation. Justice is not a popularity contest, and judicial independence also

protects judges who make controversial decisions that spark public outrage. The concept of

judicial independence is enshrined in the Charter, which guarantees everyone accused of

crimes that their case will be heard by "an independent and impartial judge". Independence

is vital to fostering public confidence in the fairness and objectivity of the justice system.

A number of measures are taken to protect this independence. Judges oversee the

administration of the courts and the government does not set hearing dates or assign a judge

to a particular case. An independent body should be there, to reviews judges' salaries,

benefits and retirement annuities and recommends improvements and changes. Judges also

enjoy security of tenure - superior court judges can remain on the Supreme Court bench until



239

age 65 and can be removed from office only after an independent investigation determines

they are unfit or guilty of misconduct and Parliament vote to remove the judge from the

bench. Finally, judges enjoy legal immunity and do not have to worry about being sued for

something they say or do while carrying out their duties.

Impartiality

It is not enough for the judiciary, as an institution, to be independent - individual judges

must be seen to be objective and impartial. In their personal lives, judges must avoid words,

actions or situations that might make them appear to be biased or disrespectful of the laws

they are sworn to uphold. They must treat lawyers, clients and witnesses with respect and

must refrain from comments that suggest they have made up their minds in advance. Outside

the courtroom, judges do not socialize or associate with lawyers or other persons connected

with the cases they hear, or they may be accused of favouritism. Judges typically declare a

conflict and withdraw from a case that involves relatives or friends.

Judges often choose to avoid most forms of community involvement. A judge may

undertake community or charitable work but cannot offer legal or investment advice. Judges

cannot take part in politics, either as a party member, fundraiser or donor, and many choose

to relinquish their right to vote. While judges have been more willing in recent years to

make public speeches or agree to media interviews, they refrain from expressing opinions on

legal issues that could come before them in a future case. Judges are forbidden from being

paid to do anything other than their judicial duties, but can accept appointments to serve on

royal commissions, inquiries and other official investigations.

It is important that judges should maximize the assistance they receive from counsel. There

are various techniques that experienced judges adopt in this regard. For example, in cases

involving the assessment of damages, judges, as a matter of routine, should require the

opposing counsel to provide them with detailed submissions as to the calculations for which

they respectively contend. Similarly, when it comes to formulating the orders in a particular

case, both sides should be required to specify, in detail, what they seek. Unless it is

unavoidable, counsel should not be permitted to thrust lengthy written submissions before a

judge with a casual observation that the judge can read those submissions later in chambers

and counsel will move on to some other subject. We are constantly told that counsels are

there to assist the judge. Obtaining maximum benefit from such assistance is part of the

judicial technique. Developing that skill will greatly improve the quality of your judicial

lives.

Reasons for judgments are not legal essays, or articles prepared for a law journal.

The purpose of a judgment is to make a decision about the issues that have been presented



240

for decision, and to express the reasons for such decision. Just as a judge who presides at a

murder trial does not undertake to provide the jury with a dissertation on the law of

homicide, but should confine his or her directions to such principles of law as the jury must

understand in order to decide the particular case, so the reasons for judgment of a trial judge

should address, and address only, the issues that require determination. The question: "Why

write judgments?" prompts another question: "Who reads them?" Your style of judgment

composition might be affected if, you ask yourselves who wants to hear or read what you

propose to say, and for what purpose. A succinct method of expressing judgments will be

valued by your audience just as you, as the audience, value the same quality in an advocate.

These observations are not intended to carry the suggestion that you suppress your

individuality or that you should conform to some tedious and inflexible routine. On the

contrary, the most important piece of practical advice I can give you is that you should enjoy

being a judge. The work of administering justice according to law is important and

honourable. The task of preparing reasons for judgment, oral or in writing, is often

demanding but it is also capable of giving intellectual satisfaction. Responding to the

challenge of being a just and efficient judge is a task worthy of any lawyer's mettle.

Justice and power must be brought together, so that whatever is just may be powerful, and

whatever is powerful may be just.

- Blaise Pascal

http://www.brainyquote.com/quotes/quotes/b/blaisepasc389019.html?src=t_justice

http://www.brainyquote.com/quotes/quotes/b/blaisepasc389019.html?src=t_justice

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241

Status of Proceedings in the

Magistrate’s Court

When an Incompetent Appeal is Lodged

Priyantha Liyanage LL.B, LL.M (Colombo)

Additional Magistrate, Colombo

―The trial of an offence triable summarily is to commence more than two

years after its commission. The fact indicated above give some idea of the

rate of progress of criminal trial in this country. But it‟s only fair by the

accused in this case to say that the delay in its disposal has been

occasioned more by the slothfulness of the prosecution than by any tactics

adopted by the defense‖.

Per T.S. Fernando C.J. in Banda V Purasingha1

The tactic adopted by the defense which contributed to the delay of the disposal of the

above case as observed by His Lordship T.S. Fernando C.J is an incompetent appeal

preferred against an order for which there is no right of appeal. This judgment was delivered

in 1958.Yet we still experience that albeit the right of appeal is internationally recognized2

the aim of an appeal every time is not to challenge the legality of the order or judgment but

to delay the fruit of the proceedings of the trial court. Therefore aim of this writing is to

examine what remedies that are available for a magistrate to have undisturbed proceedings

in circumstances where an appeal is lodged at an inappropriate time. This discussion

requires examining the statutory provisions and the case law.

Sec 320 of the Criminal Procedure Code (CPC) states that any person who is dissatisfied

with any judgment or final order pronounced by a magistrate may prefer an appeal to the

High Court for any error in law or in fact in the said judgment or final order. In terms of sec

316 no appeals can be filed except as provided by the CPC or any other law. Therefore no

appeal lies against an order which is not a „final order‟.

1 56 CLW 106 2 Art. 14 (5) of the International Covenant on Civil and Political Rights says ―Everyone convicted of a crime shall

have the right to his conviction and sentence being reviewed by a higher tribunal according to law”



242

A final order is an order which terminates the proceedings of the trial court3. Accordingly

interlocutory orders during the trial are not final orders. The problem here is that when an

appeal is lodged against such interlocutory order for which the right of appeal has not

recognized by express provisions by CPC or any other law4 does the filing a petition of

appeal itself terminate the proceedings of the trial court?

The general rule and the practice in criminal cases is that once an appeal is preferred against

an order or judgment the proceedings are suspended unless otherwise is provided by any

particular law.5 In AG V Sillem (11 English Reports 1208) Lord Westbury observed that

the effect of a right of appeal is the limitation of the jurisdiction of one court and the

extension of the jurisdiction of another. The general rule was perfectly articulated in the

local case of Edward V De Silva where it was held that ―once an appeal is taken from the

judgment or decree of an inferior court , the jurisdiction of that court in respect of that case

is superseded except in regard to the matters to be done and directions to be given for the

perfection if the appeal and the transmission to the court of appeal‖6Sec 323 (6) of the CPC

also provides that on the petition of appeal being lodged the magistrate shall transmit the

case record to the High Court.

The general rule applies subject to the qualifications provided in Sec 320 and accordingly it

has no application when the appeal is against an interlocutory order .In other words petition

of appeal may not disturb the trial or other proceedings of the original court. This situation

has been dealt with in few local judgments. In Banda V Purasinha(supra) the magistrate

refused the plea of autrefois acquit raised by the defense counsel and directed that the trial

should proceed. The accused appealed against this order to the Supreme Court. The Supreme

Court held that an appeal lies only from a judgment or final order pronounced by a

magistrate Court, and an interlocutory order is not an appealable order. T.S.Fernando J.

observed that the remedy available to a magistrate in such circumstance as follows;

“The magistrate should have continued the trial and after its conclusion forwarded the

record to this court as an appeal had been filed against his order rejecting the plea. The

decision to postpone the trial till this court had time to consider an interlocutory appeal has

resulted in delaying the trial of a case which had already been delayed to the point of

exasperation…..it is found the appeal is not competent the next step for the magistrate to

continue the trial.”

In Re Nancy De Silva7 where N appealed from an order of the Magistrate directing a motor

car which was produced by the police in connection with a complaint of robbery, to be

3 Cassim V Abdurasak 38 NLR 428. 4 For instance an appeal lies against interim payments made under Sec. 11 of the Maintenance Act. 5 For deviation of the rule See Proviso to Sec. 14 of the Maintenance Act which provides that maintenance orders

made under Sec 2 shall not be stayed for the reason that an appeal is preferred against such final order. However

interim orders made under Sec 11 are subject to the general rule since the legislature has omitted Sec 11 from that

proviso. However it is limited to the continuity of interim payment but not to proceed to the inquiry. 6 46 NLR 342 at page 343 7 70 CLW 80



243

returned to the alleged owner, the Supreme Court found that there is no right of appeal

against that order. It was also held that the proceedings can be instituted and continued even

where an appeal is pending and the record has been sent up to the Supreme Court, all the

Magistrate has to do in such an event is start another record. Since the Magistrate is not

entitled to refrain from transmitting the case record to the High Court as it has been held in

Application re appeal in P. C. Hambantota No. 43428it is advisable and safe to follow the

procedure prescribed in Re Nancy De Silva judgment.

Appeal against conviction before the sentence

As aforesaid an appeal lies only against a judgment or a final order. The judgment

constitutes the conviction, the reasons for conviction and the sentence9. In Kershaw V

Rodrigo10

it was held that findings of a verdict coupled with sentence is the judgment.

Therefore any appeal before sentence is premature. In Ukku Bandage Thilekarathna V

O.I.C. Kekirawa11

it was held that an appeal should be preferred after the sentence is passed.

Accordingly an appeal against a conviction was dismissed and sent back the record to enter

the sentence.

However in Gunesekara V A.G12

it was held more recently that there is a right of appeal

both after the conviction as well as after the sentence. The court came to this conclusion

after considering the international laws. For instance Art 14 (5) of the International

Covenant on Civil and Political Rights says that everyone convicted of a crime shall have

the right to his conviction and sentence being reviewed by a higher tribunal according to

law. Art 12 of the Universal Declaration of Human Rights has guaranteed right to a fair trial

which includes the right for a review of that trial.

In the light of these authorities it is opined that in any event where an appeal has been

preferred after the conviction, the Magistrate is not refrained by any procedural law from

proceeding to pass the sentence since transmitting the case record will only contribute to

delay the proceedings and if the record is transmitted the higher forum will have to send it

back in order to pass the sentence. Therefore the record may be sent only after the sentence

in order to pursue the appeal. Had an appeal being lodged after the sentence as well the two

appeals may be consolidated and determined by the High Court in view of the Gunesekara V

A.G judgment (supra)

The execution of orders of the High Court under the Primary

Court Procedure Act

8 22 NLR 187 9 See Hendricus V Wijesooriya 47 NLR 378. 10 3 C.WR. 44 11 C.A 346/81 decided on 16.12.1992 12 SC Appeal No. 114A/2011 Decided on 09.07.2012



244

A practical difficulty faced by original court judges is that when an application, to execute

the order of the High Court Judge acting in revision, is made there is no way of knowing

whether an appeal has been lodged against the order of the High Court. Generally the party

resisting the execution furnishes a certified copy of the petition of appeal. The question that

arises here is whether a writ of execution can be issued when a petition of appeal has been

filed against the High Court order.

Again it is important to keep in mind that the general rule above referred to is applicable in

criminal matters. The proceedings under Sec. 66 of the Primary Court Procedure Act are

considered as quasi criminal in nature yet matters with regard to the execution of orders of a

Primary Court is very much civil in nature as per Sec 78 of the Primary Court Procedure Act

which deals with casus omissus.

In Kusum Kanthilatha V Indrasiri13

the Court of Appeal held that upon proof of an appeal

being preferred to the Court of Appeal against a judgment of the High Court acting in

revision in respect of an order made under Part VII of the PCPA, the original court should

stay its hand until the determination of the appeal. This view was held to be erroneous by

Ranjith Siva J. in R P Nandawathie V Mahindasena14

where it was held that mere lodging of

an appeal does not automatically stay the execution of the High Court order. It was also

observed that orders given by Primary Court Judges under Chapter VII should be executed

or implemented as possible without undue delay unless there is a stay order currently in

operation and there should be no automatic stay of proceedings for whatever reason,

otherwise that would negate and frustrate the very purpose for which these provisions were

enacted.

This conflict was resolved by a divisional bench of the Court of Appeal in O.I.C. Police

station Eheliyagoda V Jayantha Wickramasingha15

where His Lordship Justice Abdus

Salam (Sisira de Abrew J and D.S.C. Lecamwasam J agreeing) inclined to follow the

decision in R P Nandawathie V Mahindasena (supra). The divisional bench emphasized the

want of expeditious execution of orders made under Chapter VII of the PCPA since the

legislature expected only temporary orders from the PCJ in order to preserve the peace.

Accordingly the law that prevails now is filing of an appeal against the order of the High

Court does not ipso facto operates to suspend the jurisdiction of the Magistrate to execute

the order appealed against.

13 2005 1 SLR 411 14 CA CAPHC 242/06 15 2011 1 SLR 284



245

Membrum pro membro - An eye for an eye, a tooth for a tooth.

Law of Hurt and Grievous Hurt

For Medico-Legal Purposes

R.S.M. Mahendrarajah

District Judge/Magistrate, Kebitigollewa.

Whoever causes bodily pain, disease, or infirmity to any person is said to ‗cause Hurt‘ the

penal code enumerates eight kinds of Hurt, which are designated as Grievous Hurt. Hurt

which does not amount to ‗Grievous Hurt‘ is not described by any special term in the penal

code, but the expression ‗Simple Hurt‟ is used in practice.

In normal sense Hurt means to cause bodily injury and/or pain to another person in our penal

code defines Hurt as follows:

Section

310. Whoever cause bodily pain, disease, or infirmity to any person is said to ‗

cause hurt‘

311. The following kinds of hurt only are designated as grievous

a) Emasculation.

b) Permanent privation or impairment of the sight of either eye.

c) Permanent privation or impairment of the hearing of either ear.

d) Privation of any member or joint.

e) Destruction or permanent impairment of the powers of any member of joint.

f) Permanent disfiguration of the head or face.

g) Cut or fracture, of bone, cartilage or tooth or dislocation or sublimation of

bone joint or tooth.

h) Any injury which endangers life or in consequence or which an operation

involving the opening of the thoracic abdominal or cranial cavities is

performed.



246

i) Any injury which causes the sufferer to be in severe bodily pain or unable to

follow his ordinary pursuits for a period of twenty days either because of the

injury or any operation necessitated by the injury.

. Indrasena vs welikada police (1948) 49 NLR 319.

Dingihamy vs Jansz, Chif Inspector,Anuradhapura police (1951) 46 CLW 16

And Indian penal code defines Hurts as follows

Section 319:- whoever causes bodily pain, disease, or infirmity to any person is

said to cause hurt based on this, the essential ingredients of Hurt are

1. Bodily pain, disease or infirmity must be caused – Bodily pain, except such

slight harm for which nobody would complain is hurt for example, pricking a

person with pointed object like a needle or punching somebody in the face, or

pulling a woman‘s hair.

The duration of the pain is immaterial infirmity means when any body organ is not

able to function normally. It can be temporary or permanent. It also included state

of mind such as hysteria or terror.

2. It should be caused due to a voluntary act of the accused.

Grievous Hurt

Causes of severe hurt are classified under grievous hurt. The authors of the code

observed that it would be very difficult to draw a line between hurt and grievous hurt

but it was important to draw a line even if it is not perfect so as to punish the cases

which are clearly more than hurt. Thus section 320 of IPC defines Grievous hurt as

(Indian penal code section 320)

Section 320:- the following kinds of hurt only are designated as ―Grievous‖

1. Emasculation

2. Permanent privation of the sight of either eye

3. Permanent privation of the hearing of either ear

4. Privation of any member or a joint

5. Destruction or permanent impairing of powers of any member or joint

6. Permanent disfiguration of the head or face

7. Fracture or dislocation of a bone or tooth

8. Any hurt which endangers life or which causes the sufferer to he, during the

space of twenty days, in severe body pain or unable to follow his ordinary

pursuits.

Ramala vs state of Rajasthan 1963 CrLJ 387

Jagdish Chand vs state of HP, 1922 CrLJ 3076 (HP)



247

To make out the offence of voluntarily causing grievous hurt, there must be a specific

hurt, voluntarily inflicted, and coming within any of the eight kinds enumerated in this

section. A simple hurt cannot be designated as grievous simply because it was on a vital

part of the body, unless the dimensions or the nature of the injury or its effects are such.

That it actually endangers life.

To make out the offence of causing grievous hurt, there must be a specific hurt

coming within any of the eight kinds enumerated in this section. A simple hurt cannot

be designated as Grievous simply because it was on a vital part of the body, unless the

dimensions or the nature of the injury or its effects are such that (in the opinion of the

doctor) it actually endangers life.

The evidence of the medical is not indispensible for conviction. The court is not

absolved of the responsibility to form its own conclusion regarding the nature of the

injury, expert‘s opinion notwithstanding.

Hurt is much Narrower then ―injury” Hurt does not include mental harm, and is

can fined to such harm that causes bodily pain, disease or infirmity

Whereas ―injury” denotes any (bodily) harm in reputation or property is clearly

outside the definition of ―Hurt”

Anis Beg vs. Emperor A.I.R (1924) Act 215 (2) - If bodily pain caused as a direct

result of any act it is Hurt.

Emperor vs Maung po nayan 17 Cr. L.J 465

The King vs Dayaratne (1945) 31 CLW 68

The King vs Alahakoon (1942) Times of Cey.138

No 24/469 D.C (Criminal) Tangalle (1906)2 Leem.Rep.35

Injury

Any harm done to a person by the acts or omissions of another injury may include

physical hurt as well as damage to reputation or dignity, loss of a legal right, or breach of

contract. If the party causing the injury was either willful (Internationally causing harm) or

negligent then he/she is responsible (liable) for payment of damages for the harm caused.

Section 43 of our penal code defines injury as follows.

The word ―injury‖ denotes any harm whatever illegally caused to any person in body,

mind, reputation, or property.



248

Hurt must be distinguished from ―Assault” as defined in section 342.

Section 342 our penal code read as follows.

Assault

Whoever makes any gesture of any preparation, Intending or knowing it to be

likely that such gesture or preparation will cause any person present to apprehend that

he who makes that gesture or preparation is about to use criminal force to that person, is

said to commit ―an assault‖

Singapore penal code defines, Criminal force and assault as follows,

Criminal force and assault

Criminal force – A person uses criminal force to another person when he or

she intentionally uses force to the other person, without that person‘s consent,

in order to cause the committing of any offence, or intending by the use of

such force illegally to cause, or knowing it to be likely that by the use of such

force he will illegally cause injury, fear or annoyance to the person to whom

the force is used. The penalty for using criminal force to another person is

imprisonment for up to three months, or a fine of up to S$500, or both.

Assault – Whoever makes any gesture or any preparation, intending or

knowing it to be likely that such gesture or preparation will cause any person

present to apprehend that he who makes that gesture or preparation is about to

use criminal force to that person, is said to commit an assault. The penalty for

assault is the same as that for using criminal force.

Assault or use of criminal force with intent to outrage modesty – Whoever

assaults or uses criminal force to any person, intending to outrage or knowing

it to be likely that he will thereby outrage the modesty of that person, shall be

punished with imprisonment for up to two years, or a fine, or caning, or any

two of such punishments. This offence is sometimes inaccurately termed

'molest' by the media. If, in order to commit or to facilitate the commission of

the offence, a person voluntarily causes or attempts to cause to that person

death, or hurt, or wrongful restraint, or fear of instant death, instant hurt or

instant wrongful restraint, the punishment is imprisonment of not less than

two years and not more than ten years with caning. If the offence is

committed in a lift in any building, or against any person under 14 years of

age, the punishment is imprisonment for not less than three years and not

more than ten years and caning.



249

Explanation: - Mere word do not amount to an assault But the words which a person

uses may give to his gestures or preparation amount to an assault.

Simple hurt / cause hurt

Section 310 of our penal code defines hurts as follows.

Whoever causes bodily pain, disease, or infirmity to any person is said to ―cause hurt”

Simple hurt does not endanger to life. It is not serious

Simple hurt includes bodily pain, disease and infirmity. It may also include

mental shock.

Hurt is punishable, when r it is accompanied with other offence. Such as

voluntarily causing hurt .etc

Where the knife injury though was on the vital part of body, but the depth of

the injury was not given x-ray reports also did not show any bone cut the

injury was held simple.

An injury which cannot be endangering to life, is not a grievous hurt, but is a

simple hurt.

The accuser‘s act must cause bodily and not mental pain, in order that his

conduct constitutes hurt.

If bodily pain is caused as a direct result of any act.

Samul vs Rodrigo, SI, Jaffna Police (1948)38 CLW 77

Indrasena vs Welikanda Police (1948) 49 NLR 319

James vs Silva (1934) 44 NLR 300

The King vs Salamon (1936) 38 NLR 113

Hurt (wounding)

This is explained in section 310 of the penal code of Sri Lanka. Hurt us causing bodily

pain, disease or infirmity to a person. Hurt is broad category. Pain could be caused by

injuries on the surface of the body, such as, abrasion, contusions, lacerations, cuts, stabs

and internal injuries. A disease could be introduced to a person by administering a

poison willfully causing illness or even by introducing infective agents such as bacteria

or virus. Infirmity is the inability to do activities; the person was capable of performing

before being hurt in the absence of visible or detectable injuries or disease.



250

Non grievous

This is hurt minus grievous hurt

Grievous hurt

This is given in section 311 of the penal code and the amendment Act No 22 of 1995.

Grievous hurt is a legal concept that is operative in Sri Lanka and India. The

English criminal law uses the term ―grievous bodily harm‖ but in a different sense

in the term grievous bodily harm, the seriousness of the offence is judged not by

the gravity of injury but solely by the intention of the assailant. In fact this should

be the criterion in every case but such step would put great burden on the police.

The Indian and the Sri Lanka law ease this burden by having two categories such as

non-grievous (simple) hurt and grievous hurt. The entity of non grievous hurt is not

defined in the penal code but is obtained, by removing the entity of grievous hurt

form the entity of hurt. The medical practitioner has to decide whether the injury or

the wound comes within the category of grievous hurt. In addition to this

differentiation between grievous and non-grievous hurt the circumstances

accompanying on the nature of the weapon used. It is a matter of law to be decided

by the judge, whether the wound is grievous or non-grievous. It is the duty of the

medical officer to describe the wound and indicate to the court whether it fell into

one of the categories constituting grievous hurt. The judge would then decide

whether it is grievous or non-grievous. In giving medical evidence the doctor

should be careful not to mention hearsay evidence which would not be accepted in

courts unless it is confirmed by the person giving direct evidence.

The notes made by the surgeon on the bed head ticket and the radiologist‘s report

would we considered as hearsay. X-ray films taken under the supervision of the

medical officer would be direct evidence. Where a x-ray did not play an important

part in the diagnosis, which could confidently. Be made without it, it is not

necessary to mention the x-rays in the reports or when giving evidence. If however

the x-ray is a material piece of evidence relating to a foreign body or a deep-seated

injury in the bone, it is necessary to produce the x-rays.

Emasculation

This is the deprivation of a man of his virility or masculinity and any injury, which

does so, falls in to the category of grievous hurt. It refers to injuries resulting in loss

of one or more of the male external genitalia or other injury, which results in

impotence. A severe squeezing of the testicles completely cut injury of the shaft of

the penis or testicles or stab injury of spinal cord in the lumbo-sacral spine may

cause impotence.



251

Permanent privation of the sight of either eye.

The cardinal feature is that the privation should be permanent. Privation means

loss. Therefore only permanent loss of sight of whatever degree would amount to

grievous hurt. Temporary impairment of vision such as black eye or throwing of

irritant substance into the eyes would not be considered grievous.

The medical officer should be reasonably sure that the privation of sight did not

exist before the injury when declaring an injury as causing permanent privation of

sight. It is necessary to ascertain the lesion in the eye and decide whether such a

lesion could have been caused by tae assault committed for an example

hemorrhages form diabetic retinopathy could not have been caused by a blow on

the eye. However dislocation of the lens, retina or hemorrhage in to the eyeball

may result from a blow. Opacity of the cornea of the eye could have been caused

by acid being thrown at the eyes.

Privation of any member or joint

These are serious injuries resulting in loss of a member of the body. An example of

this type of injury would be cutting off a finger, toe, hand, foot, limb, nose, and ear

lobe. By privation of a joint is a place where is certain amount of unrestricted

movement such as flexion and extension, abduction and adduction and rotation.

Any of these movements could be restricted by complete fixation of the joint. Cut

injuries of the joint capsule resulting in alkalosis by fibrous tissue or excessive

bone formation would come under this category.

Destruction or permanent or impairing of the power of any member or joint

This covers much wider range of injuries than the previous one and the injuries in

the previous clause are more serious than those covered by this clause. Destruction

of the powers of the member entails the complete loss of function of that member

without however entailing its loss. This may occur in damage to bone, nerve,

muscle, or artery or vein. Permanent impairment of the powers of a member or

joint may result from wide variety of injuries such as cut injuries of the nerves,

joint capsules, blood vessels and muscles which can cause permanent stiffness,

limitation of movements or weakness of the limb. Even superficial injuries if

extensive may result in scar formation, which would finally cause contraction

resulting in limitation of movement or stiffness of a member or joint. The

impairment should be permanent and not temporary. Therefore it may be necessary

to review the patient several weeks later. By such time it may be possible to assess

the amount of recovery and decide whether there would be or would not be

permanent impairment or that the disability would have lasted for more than 20

days so that the condition would be Grievous under clause under the section.



252

Permanent disfiguration of the head or face

The cardinal features are disfiguration and permanency. Asymmetry of the face,

nose, eyes, ear lobes and asymmetrical lesions of the face such as scars, cuts,

discolorations, pigmentation, de-pigmentations, and thickenings would be

considered as disfiguration and could be included in the category of grievous hurt.

The important feature is that the individual. The age, sex, occupation and the

marital status of the individual may influence in making the decision of

disfiguration of the face. A scar, which would hardly be noticeable in middle-aged

laborers, may be considered as disfiguration in a young unmarried girl, film star

and in a television announcer. This is one category where the medical officer has to

use discretion. Extensive lacerated wounds caused by acid throwing and branding

with firebrands usually cause permanent disfiguration apart from the obvious

mutilation caused by cutting off a nose or ear. The possibility that the injury may

become less noticeable is inconsistent in making it grievous.

Cut or fracture, of bone, cartilage or tooth or dislocation or sublimation of

bone, joint or tooth.

Usually it is fairly easy to make the decision on this type of injury because in most

of the instance there is no doubt as to its nature. The diagnosis can be made

clinically or by x-ray examination. The cut or fracture of bone Cartilage or tooth or

dislocation or sublimation of bone to the duration between the assault and

examination. In recent dislocations there are raw bleeding areas in the tooth socket.

Attention to be paid to the lips because a blow sufficient to the victim had severe

protruding teeth. The margins of a recently fractured tooth are sharp and the surface

shows the pulp cavity. The margins of a tooth which have been fractured long time

ago, are smooth the discoloration of the non-fractured teeth is in contrast to the

freshly broken surface of habitual betel chewers and in hard smokers. The presence

of pyorrhoea and receding gums does not make a dislocation of tooth non-grievous

but would be an important factor in helping the court to decide on the amount of

forced used. Mere loosening of a too thin the of severe pyorrhoea cannot be

considered as a grievous injury. Many of these difficulties do not arise in the case

of fracture or dislocation of a bone. The diagnosis of a fracture of a bone may be

made clinically and confidently confirmed by x-rays.

The approximate age of the fracture can also be assessed from x-rays. Difficulties

are observed in the diagnosis of skull x-rays. Skull x-rays should be taken in

standard positions such as antero-posterior, lateral and town‘s view and in doubtful

cause it is necessary to obtain the interpretation of a radiologist. The marking made

by blood vessels on the cranium may be mistaken for fissure fractures by an

inexperienced medical officer.



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Any injury which endangers life or in consequence of which an operation

involving the opening of the thoracic, abdominal or cranial cavities is

performed

a) Any injury which endangers life

For life to be in danger there must be an immediate danger as a direct

result of the injury. Shock form any cause and damage to vital organs

cause immediate danger to life. Mere presence of infection without shock

would not endanger life. Mere breach of the skin, which could be a

potential site of entry for tetanus and gas gangrene organism by itself,

would not endanger life. Generalized peritonitis, extra-dural hematomas,

severe haemothorax or pneumothorax, severe lung contusions, leading to

respiratory failure are some of the conditions, which could be considered

as endangering life.

It is incumbent on the part of the grade medical officer or the part of the

grade medical officer or the surgeon or obstetrician treating the patient to

make arrangements to take a dying declaration or a dying deposition if the

patient‘s life is in danger.

b) Operation involving the opening of the thoracic, abdominal or cranial

cavities is performed

Any patient has undergone Craniotomy, thoracotomy or laparotomy as a

result of injury would be considered to be a case of grievous hurt. It

should be noted that the decision to perform craniotomy, thoracotomy,

Insertion of an inter-costal drainage or laparotomy is a decision made on

medical grounds. Inclusion of this section removed the difficulty that the

medical officers had in deciding whether an injury was grievous or non-

grievous or non-grievous in patients who had intra-cranial, intra- thoracic

and intra- abdominal lesions without endangering life

Any injury which causes the sufferer to be in severe bodily pain or unable to

follow his ordinary pursuits, for period of twenty days either because of the

injury of any operation necessitated by the injury

The medical officer should be careful not to be misled by patients who are

malingering when considering these two sections. Wounds can be deliberately

aggravated by patients and kept fresh and prevented from healing. The medical

officer must assess at the initial examination whether the wound is likely to take

more 20 days to heal and should ask the patient to report in 14 days time to assess

the degree of healing. The difficulty is removed if the patient is hospitalized



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because he is under observation at all the time. A patient remaining in the hospital

for 20 days or more for a wound on the orders of the medical officer would be

considered to be a case of grievous hurt.

The injuries that should be considered under this section should be the injuries

other than those in the operation in this section are those operation excluding

craniotomy, thoracotomy including insertion of aintercostal tube and laparatomy

such operation would be cleaning of a wound or arresting bleeding points, repair

of tendons and muscle, manipulation, reduction and immobilisation of fractures or

dislocation etc. under general or local anaesthesia.

The injuries, which prevent a person carrying out normal duties for 20

days are those that would not fall in to any of the above categories from the

decision to make an injury this category is purely a medical one.

NO 2594 D.C kurunegala (1899) Koch rep 41

Pre withers –j, it is not for the medical witness to say whether hurt is grievous or

not, he has to describe the nature and character of the injuries and it is for the

judge to find whether they are grievous.

Classification of wound

1. Abrasion

Abrasion is destruction of the epidermis of the skin. Abrasion are of immense

value in forensic medicine and are produced when a rough object or a sharp edge

scrapes the superficial portion of the skin (epidermis) as when a person falls,

slides on a rough road or when a sharp knife is drawn across the epidermis. Most

abrasions bleed slightly and from a scab when healed and do not leave a

permanent mark. There are three types of abrasions. Abrasions may be

accompanied by other minor or major internal injuries. Ante-mortem abrasions

have to be differentiated from post-mortem abrasions. Post-mortem abrasions lack

congestion, bleeding and the floor is pale white whereas in ante-mortem abrasion

the floor is red. Post-mortem abrasions are caused by ants, insects, Crustaceans

etc. abrasion may be self-inflicted, produced by blow, application of pressure or

due to falls.

2. Contusion

Contusion extravasations of blood into the following rupture of small

blood vessels (arterioles/veins). They can occur on the skin, in muscles,

connective tissues and internal organs. Bruises are produced when blunt

mechanical forces such as compression, traction and shearing are applied to skin,



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tissues and organs. Bruises in the living appear as tender, red bluish red or brown

swellings on the body surface. Bruises in internal organs cannot be detected by

tenderness on palpation and the person complains of pain in the area of bruise.

Bruises occur more readily in lax tissues than in firm and tissues, e.g. eyelid,

breast, vulva, buttocks etc. Bruises occur less frequently in scalp, palms and soles.

Females, elderly people, those with bleeding disorders and those who are

unaccustomed to physical work (clerks or office workers etc)bruise occurs easily

than manual labourers and athletes. The colour of the bruise changes with time

and are seen clearly in fair skinned people. Contusions are rarely self inflicted and

most often produced by direct blows or falls. Bruises in dead bodies may appear a

day or two after death. Hence the necessity for a repeat examination of bodies in

cases of assault is important.

3. Lacerated wounds

Laceration is splitting, tearing and stretching of tissues on the application of blunt

mechanical force. Lacerations are often accompanied with bruising. Lacerated

wounds are not produced by sharp cutting weapons. Lacerated wounds are

identified by the irregularity and the undermining of the margins, splitting of the

ends (fishtail appearance), and abrasion of the margins and the presence of tissues

across the edges. Often the area surrounding and underlying tissue are contused. It

is easy to differentiate ante-mortem laceration from post-mortem lacerations

because the latter will not have any vital reaction. Lacerations caused by blunt

weapons like clubs etc. are usually uncontaminated where as lacerations produced

by falls and in rode traffic accident are usually contaminated with sand, grit or

mud. Lacerated wounds are rarely self inflicted most often produced by direct

blows or falls. Lacerations may be accompanied with severe internal injuries

(scalp laceration with intra-cranial haemorrhages, chest laceration with

haemothorax, abdominal laceration with injuries to abdominal viscera etc.



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4. Fractures of long bones

Fracture is a break in the continuity of a bone or tooth. Fractures can be produced

by direct or indirect violence. In direct violence, Fractures takes place at the site of

impact of the blow. In indirect violence, Fracture takes place at a site, which is not

the site of impact of mechanical force.

Bone Fractures & Joint Dislocation

Two of the most common bone and joint injuries are fractures and dislocations. Both injuries

should be considered emergency situations and set into place as soon as possible by a trauma

specialist. Moving a fractured or dislocated bone may cause further damage to the bone and

surrounding blood vessels, nerves and tissue.

Types of Bone Fractures

Bone fractures can happen in a variety of ways, including accidents, repetitive stress

injuries, osteoporosis and tumors.

The most common types of bone fractures are:

Closed or simple bone fracture: a break in the bone in which the skin is still intact.

Open or compound bone fracture: a break in the bone in which the skin is

perforated by the bone or by a blow at the time of the fracture.

Segmental or multiple bone fracture: a break at two or more places on the same

bone.

Comminuted bone fracture: a break in which the bone is shattered into pieces.

The line of the bone fracture may be:

Transverse: Forms a right angle with the axis of bone.

Oblique: Runs slanted to the axis of the bone.

Longitudinal: Runs along the line of its axis.

Joint Dislocations

Joint dislocation is the displacement of a joint from its normal position, usually caused by a

blow, fall or other trauma. In addition to displaced bones, there may be damage to the joint

capsule and surrounding muscles, blood vessels and nerves. Symptoms of joint dislocations

include loss of motion, swelling and pain and sometimes a joint visibly out of place.



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Dislocation or sublimation of bone or joint

Dislocation and ‗sublimation‘ of a bone or joint are two different clinical entities. The

dislocation of bone means to ‗put out of joint‘ and could be easily diagnosed. Sublimation of

bone means ‗displacement of bone at a joint which is of a lesser degree than a dislocation.

(Luxate means dislocate; thus a subluxation is short of a dislocation)

However under the 1995 amendment both are considered to be Grievous injuries. All

dislocations and subluxations must be supported by X-rays. The procedure adopted will be

the same as for fractures.

What is important to note is that a fracture will still appear on the X-ray once reduced while

a dislocation will not appear on the X-ray once reduced.

In doubtful cases the opinion of an orthopaedic consultant must be obtained.

Cut or fracture of tooth.

Fracture of tooth refers to either a Fracture of the crown or a Fracture of the toot. The latter

results in mobility of the tooth. It also refers to a part of the crown getting chipped off.

Crown infraction means incomplete crack in the enamel with no loss of tooth substance.

There is 100% recovery without treatment,but yet grievous.

Even a Fracture of a carious tooth is a grievous injury. However the medical officer must

contend that the intensity of the blow was of a lesser degree.

A diagnosis of a Fracture of the root is made from dental X-rays.

MLR, MLEF AND PMR (H 1135,1135A)

The medico-legal report in compensation claims, (what is MLR)

The standard Medico legal report H 1135 (MLR) cannot be issued in cases of compensation

as the MLR is designed only to issue reports ‗Hurt‘ cases.

Further, most of these compensation claims are civil or private actions and in issuing private

reports, a medical officer cannot use forms issued by the government. Therefore, a medical

officer may prepare his report in a manner he thinks is most suitable for the case on his

letterhead or a half sheet of paper stating his credentials.



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The format of the report could be:

Part A-original injuries

Report as in Medico-legal report (H1135)

- Name, age, sex, address of injured person.

- Date of admission, date of examination & date of discharge.

- Bed head ticket or OPD/clinic reference number.

- Short history given by the patient.

- Detailed description of the injuries (size, site, shape, disposition etc) as in page 2 of MLR. Investigation findings like X-rays etc. (with reference numbers)

- Category of hurt (as in page 2 of MLR)

- How each injury was caused (as in page 3 of MLR)

a) Reference to weapons

b) Reference to the incident like traffic accident, fall, machinery etc.

c) Are the injuries sustained compatible with history given by patient, if not

given reasons.

d) Was the person smelling or under influence of alcohol or drugs.

Part B-summary of the nature of treatment given such as

Application of crepe bandages and plaster casts, surgical procedure, pain killers, antibiotics

and other drugs given, physiotherapy, duration of treatment in hospital, follow-up treatment

in clinic up to full or partial recovery.

Opinions of other consultants like Eye, ENT, Dental, Orthopedic, Neurosurgeon etc should

also be included.

Part C-past medical history

Any natural illnesses suffered by the patient at the time of the initial examination diabetes

mellitus, hypertension, liver disease, renal diseases etc should be mentioned including its

medical management and its effects on the injuries.

Part D- condition of patient at time of discharge

- Fully or party recovered.

- Injuries healed, partly healed or infected.

- What instructions given to patient by medical officer like dressing of wound

continuation of drugs, attending clinic, attending local hospital etc.

Part E-Review of patient

- Date & time of review.

- Condition of injuries on review with reference to each injury observed by your



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initial examination.

- Has the injured person carried out instruction given at the time of discharge?

a) Completely healed without any disablement.

b) Completely or partially healed with temporary total disablement.

c) Completely or partially healed with temporary partial disablement.

d) Completely or partially healed with permanent partial disablement.

e) Completely or partially healed with permanent total disablement.

Part F-Disablement (incapacitation)

In respect of injuries, mention the injuries falling under the following categories.

a) Permanent total disablement.

b) Permanent partial disablement.

c) Temporary total disablement.

d) Temporary partial disablement.

In respect of disablement indicate:

1) Is the disablement the direct of injury?

2) Were there any natural diseases that would have contributed to the injury? If so

what were those diseases and how and to what extend did they contribute?

3) Did alcohol or drugs result in or contribute to the injury? If so how?

4) Are there any factors on the part of the patient that could have contributed to the

disablement? If so what are they and how and to what extent did they contribute?

5) Was the patient suffering from any natural illness which could have contributed to

the disablement? If so what were they and how and to what extent did they

contribute?

6) The duration of each type of disablement.

7) Percentage loss of earning capacity.

Injury Pattern in fall

Injury pattern in falls depends mainly on:

1. Weight of the victim.

2. Distance of the fall.

3. Nature of landing surface such as hard or soft, smooth or rough, irregular with

projections, sloped down or a fluid medium.

4. Intervening objects between the places of the landing surface.

5. Anatomical area/ areas of the body hitting intervening object and the landing

surface.



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Thus, a fall by a heavy person over a long distance on to a hard surface with several hard

projections and hitting intervening objects and surfaces in its descent will leave severe

injuries.

In such a scenario, if the heads hits the landing surface, will result in fatal head injuries so

wound be injuries to the trunk and limbs on impact.

Description of injuries for Medico-Legal Purposes

Injuries should be accurately described in the Medico Legal report (MLR) and other

medico-legal documents. The form health 1135A may be used to draw the injuries.

Photographs may also be taken.

A general and a systemic examination should be done when examining a person for injuries.

There may be injuries in areas other than those that are not shown by the patient. Therefore a

complete examination should be done though out the body.

Non-technical simple descriptive terms should be used as often as possible on medico-legal

document as they are mostly handled by non-medical persons.

The following details should be noted.

1. Nature of the injury (and shape): e.g. liner abrasion, laceration, sutured

cut, oval shaped contusion.

2. General position in the body: e.g. front of left forearm, right side of face.

3. Exact dimensions (and shape): e.g. 5cm long, 5‖x2‖, circular with a

diameter of 1.5cm.

The depth should be noted measured in relation to tissue planes, in clinical cases. E.g.

superficial or skin deep, involving muscles, penetrating into abdominal cavity. It should be

measured in centimetres when it is for a PMR. This is especially important in stab injuries.

4. Exact position & direction

This is referred to in relation to anatomical position of the body or landmarks. The words

used by the general public should be used as much as possible. E.g. root of neck, bridge of

nose, tip of nose, tip of shoulder, outer end of eye brow, left angle of the mouth, 3rd

intercostals space, lower angle of scapula, bony prominence of elbow, inner border of

forearm.

The exact position on a surface should be referred to in two dimensions at right. E.g. 2cm

outward and 3 cm above the left nipple,4cm vertically above the root of ear, 3cm to the left



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of the midline and 1 cm above the eyebrow, 2 cm horizontally to the left from upper end of

the natal cleft.

The direction of a stab, gunshot or other penetrating injury should be given in three planes.

E.g. upward, inward and backward

(2) Significant positive and negative factors; e.g.

indicating

a. timing-healing, infection, active bleeding,

b. weapon-both sides sharp,

c. force-point or plane of maximum comminuting and maximum

depression, extending to the inner table of the skull and

d. Complications or effects of injury (when relevant) – involving the

middle meningeal artery, inability to move finger when tendons are

cut, whether there is an underlying haemothorax or not in a stab

injury of the chest.

Example of a description:

Grazed Abrasion in the left side of face, 3cm x 1 cm. The inner end is situated 4cm away

and 2cm above the angle of the mouth, and it is directed outward and to the left. A scab is

present. There is no evidence of infection. There is no evidence of underlying injury.

Medico-legal examination form (MLEF) and medico legal

report (MLR)

The MLEF is a police referral form. It has 3 parts out of which 2 parts (copies) are sent to

the doctor. The doctor fills and returns the ‗police copy‘ and retains the ‗medical officer‘s

copy. Any person who has allegedly been assaulted and sometimes alleged assailants are

produced with the MLEF (e.g. examination for drunkenness, injuries, rape assailants etc. If

the doctor comes across cases that have a criminal involvement (e.g. assault, road accidents,

abortion, rape etc) such cases should be reported to the police. So that they can take action

including issuing a MLEF. Accidents per se need not be informed (e.g. simple fall). A

doctor has a legal duty to inform attempted suicide. However his ethical duty may be

otherwise.

Based on the information provided by the doctor in the Medico-legal Examination Form

(MLEF), the police decide whether to and under what offence the assailant should be

prosecuted. An MLEF is NOT sent to court.

If there is a court case the doctor may be ordered to submit a Medico-Legal Report, since

summons for a MLR may take many month, the doctor when filling the MLEF should



262

document all information needed to fill a MLR in the back of the MLEF or another paper

and keep it with him or her. The MLR should be sent to the court under registered post, or

personally handed over and a receipt obtained. This is a form of documentary evidence

courts. The doctor is usually not summoned to the Magistrates Court to give oral evidence

but only asked to submit reports. He or she may be required to give oral evidence in the

High Court.

The Medical Officer is personally criminally responsible for maintaining copies of the

reports of persons he or she has examined. Failure to obey summons can lead to a warrant of

arrest. This duty and responsibility lies until the doctor dies. He should take all copies of

such documents with hum he is transferred from one station to another and when he retires.

The institute in which a doctor has worked earlier may keep copies and send certified copies

of reports deposited there on behalf of its former medical officers when they are summoned.

But this is a matter of courtesy and should not be assumed as a right.

Some question the doctor may be asked in courts *what injuries contributed to the

death*cause of death/category of hurt*amount of force used*whether injuries are consistent

with a pattern (e.g. fall, defence, self-inflicted/friendly hand etc) *How and when they were

caused *probable weapon*whether a given weapon could have caused such an injury

*volitional activity the person could have done after sustaining such an injury.

The doctor‘s interpretation of injuries may help the police investigation and the ISD to

decide whether a death was natural, accidental, suicidal, or homicidal. His evidence may

also help the judge/jury to reconstruct the crime. The doctor may also have to examine and

report on injuries for civil purposes such as compensation of victims who have been

subjected to industrial and road traffic accidents.

However the ideal situation would be to judge the seriousness of the offence from the

intention of the assailant by studying the weapon used number of blows inflicted and the

area of the body to which blows have been dealt.

After the examination of a victim of the medical officer is called upon to indicate to the

police in the medico-legal examination form (MLEF-Police) the seriousness of an injury

from a legal point of view so that the police may charge the assailant under the relevant

section of the penal code. This is referred to as the category of hurt.

The categories of hurt mentioned in column 12 of the M.L.E.F. are as follows

1) Non-Grievous.

2) Grievous.

3) Endangering life.

4) Fatal in the ordinary course of nature.



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Injuries that are ―necessarily fatal‖ do not come under the category of hurt,

for the victim is implied to be dead. In such circumstances the charge will be one of

―Homicide‖

In an early anonymous case, withers J. declared ―it is not for the medical officer to say

whether a hurt is Grievous or not. He has to describe the nature of the injury and the

character of the injuries, and it is for the judge to find out as to whether the injuries are

Grievous or not (1899) D.C Kurunegala 2594 Koch‟s Rep 41.

In spite of the above judgment and similar views expressed by judges of the Supreme Court

later, the medical officer is called upon to express an opinion as regards the category of hurt

both in the M.L.E.F. which is given to the police and in the medico-legal report (MLR-H

1135) which is submitted to the court for the trial.

Conclusion

It would be better for the doctor to stick to the scientific facts of the case while opening

about the nature of the said injuries and leave it to the Court to form their opinion based on a

holistic view of the case. Finally, it should always be borne in mind that the doctor‘s opinion

as to the nature of the injury, whether simple or grievous, is to guide the investigative

agencies only and the final decision rests with the Courts.

―An unjust law is itself a species of violence. Arrest for its breach is more so. Now the law

of nonviolence says that violence should be resisted not by counter-violence but by

nonviolence. This I do by breaking the law and by peacefully submitting to arrest and

imprisonment.‖

― Mahatma Gandhi, Non-violence in Peace and War 1942-49

http://www.goodreads.com/author/show/5810891.Mahatma_Gandhi




264

Issues Arising at the Enforcement of

Interim Measures of Protection

In International Commercial Arbitration

Kaweendra Iranthie Nanayakkara1

Introduction

Efficiency, Finality, Inexpensiveness and Confidentiality are the main four facets, which

make Arbitration a commendable Alternative Dispute Resolution (ADR) system and parties

have ever more placed their reliance on Arbitration to resolve their disputes. As an

alternative to the judicial system, arbitration has become more popular among business

community in solving their cross-border commercial disputes.

The process of arbitration is always conducted in an informal atmosphere giving

parties required confidentiality. Unlike in situations where judicial discretion is exercised,

party autonomy plays a major role in the course of arbitration. Since it is the parties who are

setting the wheels in motion, it is not uncommon to see that they do everything within their

capacity to have a favourable award.

Even though arbitration is said to be a speedy method of dispute resolution than the

judicial system, it also has its inherent drawbacks. Sometimes many reasons would intervene

and make the procedure slow and prolonged. However, due to the passage of time between

the initiation of arbitral proceedings and the granting of the final award, interim measures

invariably and often form an important instrument to prevent irreparable harm to a party and

make the outcome a mere pyrrhic victory.

During the course of arbitration, it may be necessary for the parties to obtain

interim orders intended to preserve evidence, to protect assets, or in some other way to

maintain the status quo, pending the outcome of the arbitration proceedings and such orders

1 Additional District Judge/ Add. Magistrate – District Court of Attanagalla. LL.B (Colombo), LL.M (Wales),

Diploma in Forensic Medicine and Science (Colombo).



265

could be obtained from arbitral tribunal as well as from the national courts.2 Hence, interim

orders for the successful final award has become a necessity.

It is important to note that such orders are identified by different names in various

legal entities. However, the obvious intention of them is to facilitate reaching a meaningful

final award in arbitration. UNCITRAL Model Law3 , UNCITRAL Rules

4 and WIPO

Arbitration Rules5 identify them as ―interim measures of protection‖ while in the Arbitration

Act 1996 [of England] it is known as ―provisional awards‖6. ICC Arbitration Rules 1998

recognize these as ―conservatory and Interim Measures‖ and in France – Code of Civil

Procedure as ―mesures provisoires ou conservatoires‖. However, it is interesting to note that

main institutional rules, such as UNCITRAL and WIPO used the term ―interim measures of

protection‖. This choice of words clearly denotes the fact that the intention of these interim

orders is to act as a protector of the arbitral process.

1.1 Types of interim measures

As interim measures have been identified by different names, there exist different

types of interim measures. Those types mostly determined by the usage and as well as by the

methods of obtaining such measures.

The foremost type of interim measure is the measure for preserving the status quo.

If there was no such protection available, most of the time, the final award would be useless

for the winning party. Likewise, measures for preservation of evidence are also of great

importance for the arbitration procedure. This can include the safety of material evidence

and securing evidence from witnesses who would not be able to present at crucial times. [i.e.

very sick or dying person]. Measures to regulate and stabilize, secure enforcement, provide

security for costs and orders for interim payments can be consider as other types of interim

measures commonly used in arbitration proceedings.7 When interim orders are to deal with

seizure of property they are often called attachments or holding orders. Sometimes ex parte

orders such as Mareva Injunctions8 and Anton Piller Orders

9 could be obtained from

national courts in support of arbitration10

.

2 Law and Practice of International Commercial Arbitration – By Alan Redfern and Martin Hunter 4th edition –

2006 at pg.332 3 Article 9 and 17 4 Article 26 5 Article 46 6 Section 39 7Interim Measures in Arbitration Proceedings – Justice Saleem Marsoof, P.C. (Article submitted for the LL.M

students by the Advanced Legal Studies Unit – Sri Lanka) 8 Ex Parte Mareva Injunction prevents defendant from dealing with his assets pending award. See William Wang‟s Article International Arbitration: The Need for Uniform Interim Measures of Relief- Available at

http://www.brooklaw.edu/students/journals/bjil/bjil28iii_wang.pdf 9 Anton Piller orders issued to preserve evidence. It allows applicant or his representative to enter the premises of

defendant to search for and retain in safekeeping documents or other materials relevant which are in the threat. 10 International Arbitration: The Need for Uniform Interim Measures of Relief – William Wang – Available at

http://www.brooklaw.edu/students/journals/bjil/bjil28iii_wang.pdf





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1.2 Need for interim protection in international commercial arbitration

As cement holds bricks together preventing them from falling apart, interim

measures help in safeguarding the position of the parties until such time the dispute is

determined and by doing that make certain that the final award can be enforceable and

meaningful.

Amendments adopted in 2006 to Article 17 (2) of the UNCITRAL Model Law

expressly provide a list of functions for which interim measures are apt.11

According to

Article 17 (2):

An interim measure is any temporary measure, whether in the form of an award or in

another form, by which, at any time prior to the issuance of the award by which the dispute

is finally decided, the arbitral tribunal orders a party to:

(a) Maintain or restore the status quo pending determination of the dispute;

(b) Take action that would prevent, or refrain from taking action that is likely to cause,

current or imminent harm or prejudice to the arbitral process itself;

(c) Provide a means of preserving assets out of which a subsequent award may be

satisfied; or

(d) Preserve evidence that may be relevant and material to the resolution of the

dispute.

1.2.1 Maintaining the status quo

Maintaining the status quo in arbitration until such time the final award is delivered

is of utmost importance and vital to the successful outcome of the arbitration. If not for

necessary steps taken at the correct moment, no amount of reimbursement would be

sufficient to repay the injured party. As Marsoof J‘ states, possible damages would

include12

-

… damages to reputation, loss of business opportunities and similar heads

of claim, which are real enough but difficult to prove and to quantify, even

if they are considered to be legally admissible.

Such order could be obtained either from Courts or from the arbitration tribunal

itself. However, there is some debate as to whether it is appropriate for the court to grant

such relief. In Channel Tunnel Group v. Balfour Beatty Ltd.,13

this issue was discussed at

length. The Court of Appeal decided that it had no power to grant an injunction in the light

11 Transnational Dispute Management – Vol. 3 Issue 5 Published in December 2006 by L. E. Foster and N. Elsberg,

- ‗Two new initiatives for provisional remedies in International Arbitration‘ 12 Interim Measures in Arbitration Proceedings – Justice Saleem Marsoof, P.C. (Article submitted for the LL.M

students by the Advanced Legal Studies Unit – Sri Lanka) 13 [1993] 1 All E.R. 664



267

of the arbitration agreement. However, the House of Lord‘s decision was that though it has

power to grant the requested injunction such granting is inappropriate. Nevertheless, an

interim order obtained in time would indeed be helpful in maintaining the status quo.

1.2.2 Preserving evidence and assets

To reach their final decision arbitrators would have to weigh and measure the

evidence placed before them. What would be the result if the crucial evidence were

unavailable for them to consider? It would invariably hamper the outcome and damage

would be irreparable. Therefore, it is imperative to preserve relevant and material evidence

and assets, which are essential in resolving the final dispute.

Sometimes one party to the arbitration might find it necessary to obtain evidence of

a person who is suffering from a terminal illness and not expecting to live long. Or else that

party might come to know or have a reasonable suspicion that the other party is about to

destroy some crucial evidence or going to sell or transfer the ownership of their assets,

which are crucial for the outcome of the final award. Since international commercial

arbitrations more often deal with matters worth more than several million dollars, it is

necessary to take every precautionary method to safeguard the validity of the final award. In

such situations, interim orders preventing such actions are necessary for a meaningful final

award.

1.2.3. Preventing doing things likely to cause harm or prejudice to the arbitral

process

‗Inexpensiveness‘ said to be one of the main qualities of arbitration. However, in

the commercial arena this situation has now changed. In view of the fact that the

international commercial disputes are dealing with millions or billions of dollars, arbitrators‘

fees have also become very high. For this reason, accuracy of the determination and

impartiality of reaching the final award is paramount. If a party to arbitration becomes aware

that something is about to happen or already happening to cause harm to the arbitral process,

that party should be able to take some precautions to prevent it. In such situations if a party

to the arbitration has to suffer and bear the consequences without any recourse, he will lose

faith in this system.

There may be instances where one party to arbitration sometimes intentionally or

unintentionally does things, which would damage the whole process. Likewise, one party

might come into possession of very strong evidence to the effect that the arbitrators are

biased and the final award invariably would be in other party‘s favour. Or else there may be

situations where the arbitrators are acting arbitrarily abusing their powers. With the

availability of interim measures of protection, the affected party is in a better position. Thus,

availability of interim relief in such situations to prevent likely or apparent harm definitely

has enhanced the credibility of the arbitration process. The aggrieved party can seek interim



268

protection either from the arbitral tribunal or from the local court.

Mere availability of interim measures would not help a party who is in urgent need

of such protection. Parties who opt for arbitration for resolving their disputes must be aware

of their rights for which they are entitled to during the arbitral process and where they can

seek them. By being aware of the difficulties that they invariably would face, one could save

lot of unnecessary expenditure and time.

Interim Measures of Protection by Arbitral Tribunals and

Local Courts and Difficulties in Granting / Obtaining Such

Measures

2.1 Interim Measures of Protection by Arbitral Tribunals and Local Courts

Interim measures are an absolute necessity to protect what is at stake in the

arbitration. Regardless of whether evidence, real property, personal property or financial

assets need to be preserved, there must be an effective procedure for maintaining the status

quo. Without the protection of such provisional remedies, the outcome of the arbitration

could become meaningless to the winning party.14

A party to Arbitration, who is in need of an interim relief could either, seek it from

the arbitration tribunal itself or from the Courts. By inserting necessary clauses when

drafting the arbitration agreement, parties can confer broad discretionary powers to the

tribunal to award interim measures of any nature. At the same time, using the same method,

parties can opt to exclude the arbitrators‘ power to grant interim measures explicitly

reserving such rights only to the local courts. Nevertheless, almost all the major arbitration

institutions recognize the simultaneous powers of the arbitration tribunals in granting interim

relief.15

Similar to the instances where parties seek interim measures from the courts, a

party that turns to the arbitral tribunal for an interim remedy may expect the same standard

as applicable in the courts in granting an interim order. Thus, anyone who place reliance on

the arbitral tribunal in granting interim orders, should take precautions to set guidelines at

the time of drafting the arbitration agreement.

14 International Arbitration: The need for Uniform Interim Measures of Relief by William Wang – Available at

http://www.brooklaw.edu/students/journals/bjil/bjil28iii_wang.pdf 15 Article 21 of the AAA-ICDR International Arbitration Rules, Section 22of the AAA International Arbitration

rules, Rule 34 of the Commercial Arbitration Rules, Article 23(1) of the ICC Rules, Article 26 of the UNCITRAL

Rules, Article 15.4 of the LCIA Rules.




269

2.1.1 Involvement of Courts

Albeit, parties who wish to avoid judicial intervention to their disputes opt for

Arbitration, involvements of Courts have become essential for successful Arbitration.

Inexorableness of the support from the courts is now been largely accepted throughout the

commercial world.

When a party to arbitration finds it necessary to have an interim remedy prior to the

establishment of the arbitral tribunal, certainly their recourse would lie with the local court16

.

Invariably the appointing of arbitrators and compromising of the seat and the other

jurisdictional issues, which are necessary for arbitration, will consume considerable time. In

such a situation if a party has to wait until such ordeal comes to an end that party will be in a

very disadvantageous position within the arbitration process. Sometimes the damage would

be irreparable making the final award forever meaningless.

In Naval Gent Maritime Ltd. vs. Shivnath Rai Harnarain,17

the respondent Indian

company has all its assets located in India and arbitration proceedings initiated in England.

Issue was whether interim injunction could be granted in India. It was held that so long as

the territorial jurisdiction of the court is present, relief should not be declined on

technicalities, which are not representative of any equities in favour of the respondents.

Since the Respondent‘s properties are located in India, the umbilical cord of territoriality is

clearly visible. Recently the Indian Supreme Court in Bhatia International vs. Bulk

Trading S.A. and another,18

interpreting the Sec. 2(2) of the Arbitration and Conciliation

Act held that the section does not limit the applicability of Part I of the Arbitration and

Conciliation Act to international arbitration inside India. According to Jyoti Sagar, in his

article, Interim measures by Local Courts in arbitration held Overseas – Developments in

India,19

as a result of the above mentioned decision, now if the parties to arbitration

agreement do not specifically opt out Part I of the Arbitration and Conciliation Act, the

Indian Courts can order interim or conservatory measures provided for by sec. 9 even where

arbitration is pending overseas [outside the India].

The Paris Court of Appeal in Terex v. Banexi,20

had held that it has authority to

order interim relief pending arbitration on substantive issues. In Rotem Amfert Negevv.

16 In M/s. Sundaram Finance Ltd.V. M/s. NEPC India Ltd. [ AIR 1999 Supreme Court 565] at pg. 571 held that High Court had erred in coming to conclusion that it does not have jurisdiction to entertain application under sec. 9

of Arbitration and Conciliation act because the arbitration proceedings had not been initiated. The above case has

been followed by Delhi High Court in M/s. Buddha Films Pvt. Ltd.V. Prasar Bharati[AIR 2001 Delhi 241] 17 2000 (4) RAJ 512 (Del) 18[2002 (4) SCC 105] 19[Published in News and Notes from the Institute for Transnational Arbitration, 3 Vol. 16, No. 4 (Autumn 2002)] 20 CA Paris, Dec. 12, 1990 [1991 BULL. JOLY 595] see FOUCHARD GAILLARD GOLDMAN ON

INTERNATIONAL COMMERCIAL ARBITRATION, Part IV Ch. III Para 1309 (Emmanuel Gaillard & John

Savages eds., 1999)



270

Grande Paroisse21

, the Rouen Court of Appeal held that it has jurisdiction to order

protective measures ―regardless of whether or not the arbitral tribunal is constituted‖.

Another instance where the court intervention would be necessary is situations in

which the tribunal has no power to grant interim orders. When the interim order sought is

against a third party, the tribunal does not have jurisdiction to grant interim orders. Thus in

those circumstances one can request assistance from the national courts in support of

arbitration.

Sometime at the request of the arbitral tribunal itself, court assumes jurisdiction

over the arbitration. When the tribunal finds it necessary to record some vital statements or

take evidence from the people over whom the tribunal does not entertain its jurisdiction,

such requests seem to be made to court, to facilitate calling witnesses and recording their

evidence.

In addition, when a party to the arbitration finds that the tribunal is bias or corrupt

and that he will not get justice by requesting interim order from the tribunal, he can apply to

the local courts.

There are other instances where the arbitration tribunal may not have necessary

powers in granting interim orders as a result of the application of the domestic legislations.

The Greek Code of Civil Procedure22

states ―The arbitrator may not order, amend or revoke

interim measures of protection‖ while Italian Code of Civil Procedure23

states "The

arbitrator may not grant attachment or other interim measures of protection‖24

.

However, in India after the decision of the Delhi High Court in Arun Kapur vs.

Vikram Kapoor and Others,25

a decision delivered having considering the Channel Tunnel

Group Ltd. vs. Balfour Beatty Construction Ltd.,26

case, held the present law is that-

…the parties should be advised to approach the arbitrator for interim

relief unless and until the nature of relief intended to be sought falls

outside the jurisdiction of the arbitrator or beyond terms of the agreement

or reference of disputes.

In that judgment, it was further held that-

A party should always be discouraged to knock the door of the Court particularly when

the arbitrator is seized of all the relevant or even ancillary disputed.27

21 CA Rouen, Sept. 7, 1995, [1996 REV. ARB. 275] see FOUCHARD GAILLARD GOLDMAN ON

INTERNATIONAL COMMERCIAL ARBITRATION, Part IV Ch. III Para 1309 (Emmanuel Gaillard & John

Savages eds., 1999) 22 Article 889 23 Article 818 24 Law and Practice of International Commercial Arbitration – Alan Redfern and Martin Hunter – 4th Ed. Pg. 334

Sweet and Maxwell (7- 13) 25 [2002 (1) ARB. L.R. 256] 26[1993 (1) All E. R. 664]



271

Most legislation worldwide has accepted the intervention of courts when dealing

with arbitration. Some have accepted the wide jurisdiction meanwhile others have allowed a

restricted intervention28

.

2.1.2 Interim Orders by the Arbitration Tribunal

Powers of arbitral tribunal in granting interim / protective measures mainly depends

on the legislation of the seat of arbitration. Unless a party chooses institutional arbitration29

which can look after most procedural and jurisdictional questions through the institution‘s

procedural rules, in ad hoc arbitration, when party has a freedom of choice, arbitral

tribunal‘s powers would largely depend on the choice of procedural rules.30

In situations where a party to arbitration is in need to apply for an ex parte order

(without any notice to the other party) the arbitral tribunal would not be in a position to

entertain such application. The laws of the most popular arbitration seats and the rules of the

leading institutions do not currently expressly envisage such a power for arbitrators.31

27 Ibid at 27 28 Arbitration Act 1996 (of England) § 44, sets out a list of instances where the court exercise its powers in support of arbitral proceedings, Arbitration and Conciliation act 1996 (India) § 9 – A party may, before or

during arbitral proceedings or at any time after making of the arbitral award but before it is enforced ………, apply

to a court for (ii) for an interim measure of protection …..‖. France, New Civil Procedure Code Article 809 [This Article dealt with protective measures available from the Courts and can used in Arbitration]– ―The president may

at any time, even where confronted with serious objections, provide by way of summary interlocutory proceedings

for such protective measures as to keep the status quo of the matter as required……..‖. Singapore – Arbitration

Act, 2001 § 6 (3) – ―………, the court may for the purpose of preserving the rights of parties, make such interim or

supplementary orders as the court thinks fit in relation to any property which is or forms part of the subject of the

dispute to which the order under that subsection relates‖, Swiss Statute on International Law Article 183 (3) – ―The arbitral tribunal or the court may grant provisional or conservatory measures subject to the receipt of adequate

security from the requesting party‖. German Civil Procedure Code § 1033 – ―It is not incompatible with an

arbitration agreement for a court to grant, before or during arbitral proceedings, an interim measure of protection relating to the subject matter of the arbitration upon request of a party‖. Netherland Arbitration Act Article 1074

(2) – ―The agreement mentioned in paragraph (1) shall not preclude a party from requesting a court in the

Netherlands to grant interim measures of protection….‖. 29 Amendments in 1998 to the ICC Rules brought in addition which states that ―at the request of a party, [the

tribunal should] order interim or conservatory measures it deemed appropriate” see Yves Derains & Eric

Schwartz, A GUIDE TO THE NEW ICC RULES OF ARBITRATION (1998) / AAA International Arbitration

Rules § 22 – ―At the request of any party, the tribunal may take whatever interim measures it deems necessary in

respect of the subject matter of the dispute, including ……‖ / AAA Commercial Arbitration Rules Rule 34 –

―[t]he arbitrator may issue such orders for interim relief as may be deemed necessary to safeguard the property that is the subject matter of the arbitration without prejudiced to the rights of the parties or to the final determination of

the dispute‖. / LCIA Rules - under Article 13.1 the arbitrator can order the preservation, storage, or sale or other

disposal of any property or thing under the control of any of the parties and under Article 15.4 the tribunal also have power to order any party to provide security / UNCITRAL Rules [which can be adopted in ad hoc arbitration as

well in institutional arbitration] Article 26 (1) – ―At the request of either party, the arbitral tribunal may take interim

measures it deems necessary in respect of the subject matter of the dispute,…….‖ / ICSID Rules – ICSID

Convention, Article 47 – ―At any time during the proceeding a party may request that provisional measures for the

preservation of its rights be recommended by the Tribunal‖ 30 International Arbitration: The need for Uniform Interim Measures of Relief by William Wang – at

http://www.brooklaw.edu/students/journals/bjil/bjil28iii_wang.pdf 31 Law and Practice of International Commercial Arbitration – Alan Redfern and Martin Hunter – 4th Ed. Pg. 335

Sweet and Maxwell (7- 17)




272

However, according to the wording in article 17 B (1) of the UNCITRAL Model Law it

appears that the above situation has now been changed. According to article 17 B (1)-

Unless otherwise agreed by the parties, a party may without notice to any

other party, make a request for an interim measure together with an

application for a preliminary order directing a party not to frustrate the

purpose of the interim measure requested.

Yet, reference of subsequent articles will show that the ex-parte application only

allowed for the preliminary orders which only has a life span of twenty days32

and which

will never be enforced by a court.33

Nevertheless, through the arbitration agreement, parties

can confer immense powers to the arbitrators in granting of interim orders or leave the sole

jurisdiction to local courts.

2.2 Difficulties in granting / obtaining interim measures

Granting an interim order is not without risks and difficulties. The granting

authority whether it is the arbitral tribunal or Courts, should always be mindful of the fact

that the party who is successful in obtaining an order might use it merely to harass the other

party.

One such risk is that the interim order might represent the factual victory in the

main proceedings for the petitioner. However, the main intention of interim order is to make

the final award a meaningful one. If such order could decide the fate of the final award, the

consequences can often be irreparable. Additionally a party who is successful in obtaining

provisional remedy might use it as an offensive weapon to exert pressure on the opponent.

Likewise, it may also could be used as dilatory tactics to delay the general progress of the

arbitration.34

Article 17 A of the UNCITRAL Model Law clearly show that the drafters were

well aware of the risks in granting interim measures. Thus, they have imposed conditions for

granting interim measures in the following manner.

17 (1) The party requesting an interim measure under article 17 (2) (a) (b)

and (c) shall satisfy the tribunal that:

(a) Harm not adequately reparable by an award or damages is likely to

result if the measure is not ordered, and such harm substantially

32 Article 17 C (4) 33 Article 17 C (5) 34 International Arbitration: The need for Uniform Interim Measures of Relief by William Wang citing Provisional

Remedies in International Commercial Arbitration by Alex Bosch ed., 1994 – at





273

outweighs the harm that is likely to result to the party against whom

the measure is directed if the measure is granted; and

(b) There is a reasonable possibility that the requesting party will

succeed on the merits of the claim. The determination on this

possibility shall not affect the discretion of the arbitral tribunal in

making any subsequent determination.

(2) With regard to a request for an interim measure under article 17 (2) (d), the

requirements in paragraphs (1) (a) and (b) of this article shall apply only to the

extent the arbitral tribunal considers appropriate.

Apart from the above conditions, by way of Article 17 F, the requirement of

disclosure had been introduced to the Model Law. According to the Article 17 F:

(1) The arbitral tribunal may require any party promptly to disclose any

material change in the circumstances on the basis of which the measure was

requested or granted.

(2) The party applying for a preliminary order shall disclose to the arbitral

tribunal all circumstances that are likely to be relevant to the arbitral tribunal‟s

determination whether to grant or maintain the order, and such obligation shall

continue until the party against whom the order has been requested has had an

opportunity to present its case. Thereafter, paragraph (1) of this article shall

apply.

Above-mentioned conditions and requirements introduced by the 2006 amendment

ensure two things. One is that it prevents the party who is seeking an interim measure

making frivolous applications unnecessarily prolonging the arbitral process. The other is that

it guarantees the necessity of an interim measure in reaching a meaningful final award.

Thus, it could be said that this amendment has immensely facilitated the process of granting

interim measures.

Apart from the above-mentioned risks which have to be considered carefully, there

are many unavoidable difficulties in granting of interim measures.

One such main difficulty arises when the interim order involves a third party and

the order has a direct impact on that party. Such a situation invariably warrants involvement

of court in granting interim orders as the tribunal does not exercise jurisdiction over people

who are not subjected to the arbitration agreement. (E.g. when recording of evidence of a

third party is essential in resolution of the dispute). The Model Law makes it plain that an



274

arbitral tribunal may only ―order any party to take such interim measures of protection as the

arbitral tribunal may consider necessary…‖35

In Lance Paul Larsen v. Kingdom of Hawaii,36

arbitration was conducted by the

Permanent Court of Arbitration in Hague. The dispute stemmed from a federal lawsuit filed

in the United States Federal Court, District of Hawaii by a Hawaiian national, Lance Paul

Larsen, against the United States Government and the Hawaiian Kingdom Government as

co-defendants. The Arbitral Tribunal is asked to determine, on the basis of the Hague

Conventions IV and V of 18 October 1907, and the rules and principles of international law,

whether the rights of the Claimant, Mr. Lance Paul Larsen, under international law as a

Hawaiian subject are being violated, and if so, does he have any redress against the

Respondent Government of the Hawaiian Kingdom.37

Arbitral tribunal without any

ambiguity held that it has no jurisdiction against non-parties.

Likewise, when the interim order extends to a property, which is not the subject

matter of the dispute, the tribunal‘s powers are automatically restricted.

Parties to an arbitration agreement by their consent can confer sole authority to

arbitrators in granting interim measures and opt out the involvement of courts. In such a

situation if an interim order is required against the other party at a stage where the tribunal is

not being established, the party who is seeking the order would find it difficult to fulfill his

need. Although the Courts are bound to respect the party autonomy in the arbitration

agreement, it does not prevent the Court from entertaining the applicant‟s request for

an interim order.38

However, attitude of national Courts with regard to the interim orders

when parties have preferred arbitration has to be carefully considered. In McCreary Tire &

Rubber Co. v. CEAT Spa,39

U.S. Federal Court has held that the provisional reliefs are not

available from a Court when parties have provided for arbitration and further held that

seeking relief in Court amounts to a waiver of arbitration. Such attitude of Courts would

certainly put the seeking party in to difficulty. Nevertheless, at present, the above decision in

McCreary has been rejected by number of subsequent cases.40

Courts are of the view that

they should facilitate the arbitration rather than denigrate it. However, involvement of courts

also have its drawbacks likes the loosing party‘s right of appeal and that will definitely delay

the arbitration procedure making the whole scenario a difficult one.41

35 Law and Practice of International Commercial Arbitration – Alan Redfern and Martin Hunter – 4th Ed. Pg. 334 Sweet and Maxwell (7-15) 36 Available at http://en.wikisource.org/wiki/Larsen_vs._Hawaiian_Kingdom_2000-05-22 37"Lance Paul Larsen vs. the Hawaiian Kingdom" Permanent Court of Arbitration, The Hague, Available at: http://www.alohaquest.com/arbitration/synopsis.htm 38 Emphasis added 39 501, F. 2d 1032 (3d Cir. 1974) 40Carolina Power & Light Co. Ltd. v. Uranex 451 F. Supp 1044 (N.D. Cal. 1977 41 International Arbitration: The need for Uniform Interim Measures of Relief by William Wang – at


http://en.wikisource.org/wiki/Larsen_vs._Hawaiian_Kingdom_2000-05-22

http://www.alohaquest.com/arbitration/index.htm

http://www.alohaquest.com/arbitration/synopsis.htm




275

In Baksons Textile Industries Ltd. v. Hybro Industries Ltd.,42

Court of Appeal of

Sri Lanka had held that the parties have rights to come to Court and obtain an interim order.

2.3 Observations

Except in few occasions,43

reference of national laws and institutional rules with

regard to arbitration demonstrate that those laws and rules have clearly recognized the

arbitrators‘ powers in granting interim orders. However, the main question is whether the

party against whom the interim order granted would agree to abide by the order. In the event

that party is declining to obey the order that can be taken as a clear indication of prospective

conduct of that party and the aggrieved party would find it necessary to opt out from the

arbitration. Lack of necessary powers to compel the parties to abide by its orders ultimately

would lead to the failure of arbitration and time and money spent on initiation of arbitral

proceedings would become futile. Thus, there should be some procedure available to ensure

success of arbitration as an alternative dispute resolution method.

Issues, at the Time of Enforcement Of Interim Orders.

1. Public policy issues.

2. Lack of consistency between different legal systems.

3. Enforcement against non-signatories to the Arbitration agreement.

Since International commercial arbitration deals with commercial disputes

regardless of the nationality of parties, effectiveness of arbitration awards has a great value.

Unless those orders [awards] could be easily enforced, the financial impact on the party who

is seeking enforcement would be sometimes colossal and more often the damage would be

irreparable. In State Timber Corporation v. Moiz Goh (Pte) Ltd.,44

Sarath N. Silva CJ held

that ―….the phrase ‗arbitration proceedings‘ is not synonyms with proceedings before court

of justice for the enforcement of an arbitral award‖. This thinking of the Superior Court of

Sri Lanka demonstrate that if a party to arbitration does not accept the award / order with

consent, that the winning party‘s recourse will lie within a different set of procedure. If that

enforcement procedure were always prone to make it impossible for the applicant to get the

necessary result easily, the whole time spent on arbitration to come to the finding would

become a failure.

42 CA L.A. App. No. 51 / 97 43 Such as Sec. 38 of Arbitration Act [of England] 1996 – which confers the powers to the arbitrators only when the

parties have not agreed otherwise. / According to Italian Code of Civil Procedure Article 818 and Argentine Code

of Civil Procedure Article 753, arbitrators do not have necessary powers to grant interim orders. 44 [2002] BASL Law Report (BALR) pg. 44 at pg 49.



276

As Redfern and Hunter describe, getting an order enforced in the jurisdiction where

that order becomes meaningful is not always an easy task and a dissatisfied party may resist

any attempt by the winning party to obtain recognition and enforcement of the award.45

―Recognition‖ is a judicial decision which recognizes the legal validity of an

arbitral decision whereas ―Enforcement‖ is a judicial decision which gives practical effect to

an arbitral decision by imposing legal sanction against non-compliance with the recognized

award46

.

Recognition and Enforcement of foreign arbitral awards have proven to be a

difficult task. The winning party would most of the time find himself in a disadvantageous

position because of the lacuna of a uniform procedure. Sometimes even though there are

methods for recognizing and enforcing foreign judgments, those methods might not extend

to arbitral awards.47

The above-mentioned difficulties seem to have been identified by almost all the

laws and institutional rules dealing with arbitration. Most of those rules and laws have

separate chapters dealing with the issue of ―recognition and enforcement‖ of arbitral awards

[orders]. A perusal of these sections [Articles] reveal that they set out grounds for refusing

the recognition and enforcement of the arbitral award.

According to Article 36 (1) of the UNCITRAL Model Law (hereinafter: MAL), Recognition

or enforcement of an arbitral award, irrespective of the country in which it was made, may

be refused only:

(a) at the request of the party against whom it is invoked, if that party

furnishes to the competent court where recognition and enforcement is sought

proof that:

(i) a party to the arbitration agreement referred to in article 7 was

under some incapacity; or the said agreement is not valid under the law to

which the parties have subjected it or, failing any indication thereon, under

the law of the country where the award was made; or

(ii) the party against whom the award is invoked was not given proper

notice of the appointment of an arbitrator or of the arbitral proceedings or

was otherwise unable to present his case; or

45 Law and Practice of International Commercial Arbitration – Alan Redfern and Martin Hunter – 4th Ed. Pg. 334

Sweet and Maxwell (10-02) 46 Winnie (Jo-Mei) Ma, Public Policy in the Judicial Enforcement of Arbitral Awards: Lessons for and from Australia, citing Julian Lew, Loukas Mistelis and Stefan Kroll, ―Comparative International Commercial

Arbitration‖ (2003) 690 para 26-10 and Domenico Di Pietro and Martin Platte, ―Enforcement of International

Arbitration awards: The New York Convention of 1958 (2001) 22”. 47 The Judgments Regulation [EC 44/2001], the Brussels Convention [1968] and Lugano Convention provide for

recognition and enforcement of judgments [in England and Wales], but exclude arbitration from their scope. [Rix

and Kay Solicitors, www. rixandkay.co.uk power point presentation by Francis Wallace – 2008]



277

(iii) the award deals with a dispute not contemplated by or not falling

within the terms of the submission to arbitration, or it contains decisions on

matters beyond the scope of the submission to arbitration, provided that, if

the decisions can be separated from those not so submitted, that part of the

award which contains decisions on matters submitted to arbitration may be

recognized and enforced; or

(iv) the composition of the arbitral tribunal or the arbitral procedure

was not in accordance with the agreement of the parties or, failing such

agreement, was not in accordance with the law of the country where the

arbitration took place; or

(v) the award has not yet become binding on the parties or has been set

aside or suspended by a court of the country in which, or under the law of

which, that award was made; or

(b) if the court finds that:

(i) the subject-matter of the dispute is not capable of settlement by

arbitration under the law of this State; or

(ii) the recognition or enforcement of the award would be contrary to

the public policy of this State.

Application of above-mentioned provisions to interim orders in arbitration have

proven a somewhat difficult task. Many jurisdictions have refused to identify interim or

provisional orders as awards [for the purpose of recognition and enforcement] as identified

by above-mentioned provisions.

According to Di Pietro48

-

It is clear that even though the content of interim measures of protection may at times

coincide with the content of the final award settling the disputes between the parties, interim

measures differ radically from final awards. By definition, interim measures are temporary

in nature, while one of the main features of awards is that they decide definitively one or

more of the disputes submitted to the jurisdiction of the arbitral tribunal. The enforceability

of interim measures under the Convention [New York Convention] should therefore be

dismissed out of hand.

Hence, the party, though he received an order in his favour, would ultimately

become the loser.

48 Di Pietro Domenico [in his Article – What Constitute an Arbitral Award Under the New York Convention?] –

Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice

by Emmanuel Gaillard and Domenico Di Pietro [Reference editor – Nanou Leleu –Knobil] Cameron May

Publishers Chapter 5 at Pgs. 155 & 156



278

When one looks at the UNCITRAL Model Law and the amendments adopted in

2006,49

it is abundantly clear that the Model Law has acknowledged the above-mentioned

problem and brought in some relief in the following manner.

Article 17 H. Recognition and Enforcement

(1) An interim measure issued by an arbitral tribunal shall be

recognized as binding and, unless otherwise provided by the arbitral

tribunal, enforced upon application to the competent court, irrespective of

the country in which it was issued, subject to the provisions of article 17 I.

(2) The party who is seeking or has obtained recognition and

enforcement of an interim measure shall promptly inform the court of any

termination, suspension or modification of that interim measure.

(3) The court of the State where recognition or enforcement is sought

may, if it considers it proper, order the requesting party to provide

appropriate security if the arbitral tribunal has not already made a

determination with respect to security or where such a decision is

necessary to protect the rights of third parties.

Article 17 I. Grounds for refusing recognition or enforcement

(3) Recognition or enforcement of an interim measure may be

refused only:

(a) At the request of the party against whom it is invoked if the court

satisfied that:

(i) Such refusal is warranted on the grounds set forth in article

36(1) (a) (i), (ii), (iii) or (iv); or

(ii) The arbitral tribunal‟s decision with respect to the provision of

security in connection with the interim measure issued by the arbitral

tribunal has not been complied with; or

(iii) The interim measure has been terminated or suspended by the

arbitral tribunal or, where so empowered, by the court of the State in

which the arbitration takes place or under the law of which that interim

measure was granted; or

(b) If the court finds that:

(i) The interim measure is incompatible with the powers conferred

upon the court unless the court decides to reformulate the interim

measures to the extent necessary to adapt it to its own powers

and procedures for the purposes of enforcing that interim

measure and without modifying its substance; or

49 The Model Law was amended by UNCITRAL on 7th July 2006, at the 39th session of the Commission.



279

(ii) Any of the grounds set forth in article 36 (1) (b) (i) or (ii), apply

to the recognition and enforcement of the interim measure.

(2) Any determination made by the court on any ground in

paragraph (1) of this article shall be effective only for the purposes of the

application to recognize and enforce the interim measure. The court

where recognition or enforcement is sought shall not, in making that

determination, undertake a review of the substance of the interim measure.

Public Policy issues

Almost all legislation and institutional rules dealing with arbitration identify the

Public Policy Exception as one of the grounds for refusing the recognition and enforcement

of an order or an award. As per Seriki, H50

-

…public policy is an elusive concept that is difficult to define, because it manifests the

fundamental economic, legal, moral, political, religious and social standards of every

States. Accordingly, the degree of fundamentality of moral conviction or policy varies in

every case in various nations.

Hong Xiao J‘51

states, “The public policy exception to enforcement has two folds.

On the one hand, it serves as safeguard to the unbridled power given arbitrators; On the

other hand, it might be used as considerable latitude in refusing enforcement”. Many

scholars and Judges have identified ―Public Policy‖ as an ―Unruly Horse‖.52

According to

Lord Denning MR53

-

..the unruly horse of public policy can, and must, „come down on the side of justice‟

…with a good man in the saddle, the unruly horse can be kept in control.

This statement of Lord Denning MR illustrates that one must not make use of the

public policy exception merely to escape from giving due recognition to an arbitration order/

award and to refuse the enforcement.

Even though arbitration is a private dispute resolution method between two parties,

at the time of the recognition and enforcement of an order / award it always has to undergo

50 Seriki, H., Enforcement of Foreign Arbitral Awards and Public Policy – a Note of Caution, The Arbitration and Dispute Resolution Law Journal (2000) 9, pp. 195-196 [Extracted from below mentioned article] (Emphasis mine) 51 Judge of the People‘s Court of Chengdu Hi-tech Development Zone, Sichuan Province of China in her article

―Refusing Recognition and Enforcement of Foreign Arbitral Awards under Article V (2) of the New York Convention in China : From the Judicial Experience of Europe and USA‖ – US – China Law Review, ISSN 1548 -

6605, USA , July, 2005. Volume 2. NO.7 (Serial No. 8) – Available at

http://www.jurist.org.cn/doc/uclaw200507/uclaw20050707.pdf 52 In Richardson v. Mellish [1824] 2 Bing. 228; [1824-34] All ER 258 held ―… a very unruly horse, and when

once you get astride it you never know where it will carry you. It may lead you from sound Law. It is never argued

at all, but when other points fail‖. [Available at http://www.transnational-dispute-

management.com/samples/freearticles/tv1-1-article_67.h... Visited on 11/02/2009] 53Enderby Town Football Club Ltd. v. The Football Association Ltd.[1971] Ch 591, 607 (Extracted from Winnie

(Jo-Mei) Ma, Public Policy in the Judicial Enforcement of Arbitral Awards: Lessons for and from Australia)

http://www.jurist.org.cn/doc/uclaw200507/uclaw20050707.pdf

http://www.transnational-dispute-management.com/samples/freearticles/tv1-1-article_67.h

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the scrutiny of the State where it sought the recognition and enforcement. During such time,

one of the main challenges the arbitral award or an interim order has to face is that whether

it is contrary to the public policy of that State. Even the award/ order is devoid of any defect

which would render it fit for refusal of recognition or enforcement, if such award/ order is

contrary to public policy, the recognizing State would refuse the recognition and

enforcement however much disadvantage it cause to the winning party. Nevertheless, this

depends on the method uses by the national court in interpreting the issue of public policy.

One Court might take a very liberal approach in interpreting whilst the other taking a

narrower view. Thus, this inconsistency and uncertainty would also contribute to decide the

fate of the party who is seeking recognition and enforcement.

Some legal scholars in USA have expressed their doubt that the public policy

defence could become a ―catchall‖ means for parties seeking to vacate an international

arbitral award. In the same way the American Arbitration Association worries that, the

public policy clause would give the court system ‗considerable latitude in refusing

enforcement‘.54

According to Di Pietro and Martin Platte, public policy affects almost all

areas of law including arbitration. Public policy can restrict the types of disputes which can

be referred to arbitration and thereby determine which disputes are ‗arbitrable‘.55

Sri Lankan perspective56

Sec. 32 (1)(b)(ii) and Sec. 34 (1)(b)(ii) of Arbitration Act No. 11 of 1995 specify

the ‗public policy‘ defence in Sri Lanka with regard to the recognition and enforcement of

arbitral awards. Sri Lanka Arbitration Act follows the UNCITRAL Model Law on

International Commercial Arbitration.

In Kristly (Pte) Ltd v. State Timber Corporation,57

application made to the High

Court by the State Timber Corporation to set aside the award and the High Court made the

order based on the following grounds:

1. that the application for enforcement was not accompanied by a duly certified

copy of the award.

2. that the award was based on a forged certificate, hence it was contrary to

public policy; and

54 Bouzari, E. H., The Public Policy Exception to Enforcement of International Arbitral Awards: Implications for Post – NAFTA Jurisprudence, Texas International Law Journal (1995) 30, p. 208. [Extracted from ―Refusing

Recognition and Enforcement of Foreign Arbitral Awards under Article V (2) of the New York Convention in China

: From the Judicial Experience of Europe and USA‖ by Hong Xiao J] 55 Enforcement of International Arbitration Awards – The New York Convention of 1958 by Domenico Di Pietro

and Martin Platte (Chapter V pg. 179) 56 Content extracted from the Article by Justice Saleem Marsoof PC – Recognition & Enforcement of Arbitral Awards [Arbitration Law in Sri Lanka – by K. Kanag-Isvaran PC and S. S. Wijeratne 2nd Edition 2007 at pg. 161

onwards The Institute for the Development of Commercial Law and Practice publication] 57 [2002] 1 Sri. L. R. 225



281

3. that the claimant had been de-registered and lacked legal capacity at the time

of the reference to arbitration.

During the arbitration proceedings allegation with regard to the forged document

was discussed at length and the unanimous ruling of arbitrators was that the forgery should

be established beyond reasonable doubt. Genuineness of the impugned certificate was never

in issue.

An appeal was made to the Supreme Court against the order of the High Court.

Fernando J‘ in his judgment has held that the ‗refusing to consider the question of forgery

without a specific issue‘ by the arbitrators is justified and ‗therefore the High Court was not

entitled to review the decision on the ground of public policy in terms of sec. 32 (1)(b)(ii) of

the Act.58

According to Justice Saleem Marsoof, this case was an extremely curious case and

he questions as to why the tribunal has permitted evidence to be led on the issue of forgery if

there is no specific issue. He further notes that the Supreme Court also had adopted an

unnecessarily restrictive view of the powers of the High Court with regard to enforcement

because the language of Sec. 32 (1) (b) only requires the finding of High Court about the

public policy defence. He further states that even evidence regarding the forgery issue

produced before High Court for the first time, it is open to High Court to determine the issue

and to set aside the award on the ground that it is contrary to the public policy.59

According to Justice Marsoof‘s observations it is clear that now it is within the

jurisdiction of the High Court to determine whether the arbitral award / order is against the

public policy of Sri Lanka.

Lack of consistency between different legal systems

It is a common knowledge that each country is governed by different sets of laws

and rules. There are instances where one country possesses more than one set of legal

system to govern its nationals. Hence, uniformity between different legal systems seems

unheard of.

Globalization has made the world a small place. New technology, daily renewing

communication skills, rapidly developing travelling speed, have create many business

opportunities between different countries regardless of distance. Those interactions between

different counties in commercial transactions have automatically enhanced the risks of

misunderstandings and illegal activities among the parties. Naturally these things have

paved the way for legal actions. When a party to an international commercial transaction

58 [2002] 1 Sri L. R. at 227 59 Article by Justice Saleem Marsoof PC – Recognition & Enforcement of Arbitral Awards [Arbitration Law in Sri

Lanka – by K. Kanag-Isvaran PC and S. S. Wijeratne at pg. 162 and 163] - [2nd ed. 2007] – The Institute for the

Development of Commercial Law and Practice publication



282

seeks the protection of law he definitely has to deal with at least two different legal systems.

Even where parties have submitted their dispute to arbitration, during the course of

recognition and enforcement procedure, they will have to face the inconsistencies between

the different legal systems.

There may be many instances where this problem of inconsistency between legal

systems could arise. One main instance is the ―arbitrability‖ of the dispute. As Redfern and

Hunter describe in their book,60

generally the term ‗arbitrability‘ used to ―determine which

types of disputes may be resolved by arbitration and which belong exclusively to the domain

of the courts‖.

Arbitrability of a dispute may differ in each jurisdiction. A matter considered

arbitrable in country ―A‖ might not recognized as an arbitrable issue in country ―B‖. Such

inconsistency between different jurisdictions definitely frustrates the whole process of

arbitration.

Inconsistencies with regard to the requirements of contract law between different

jurisdictions may also affect the recognition and enforcement of arbitral order. While in

some countries a person below 18 years be recognize as a minor and there may be others

where the age limit would be 21. If two people from each of the above category enter into a

contract and submit their dispute to arbitration, the inconsistency with regard to the

contractible age between two jurisdictions would affect them at the time of the recognition

and enforcement of the arbitral order.

Sometimes, government policies with regard to tax concessions, different standards

about investments and investors, government quotas, time limits set out by different

legislations, could be considered as barricades to the development of business activities

between parties. Different standards within jurisdictions are in existence simply because the

competition between the countries. These competitions paved the way for inconsistencies

and as long as these competitions prevail, no harmonization would be possible.

In view of the fact that there is no equal distribution of basic resources throughout

the world, each country is compelled to depend on the other. Globalization has made it

impossible for a country to maintain a closed economy anymore. Commercial transactions

between countries have become a must. No government any more can prevent its citizens

from having international commercial dealings. Moreover, a government cannot make rules

and regulations as to how its citizens should live. Therefore, it is imperative to maintain

harmonization at least in the area of commercial transactions to ensure the smooth

functioning of the country‘s economy. Availability of such procedure would definitely

enhance the credibility of the arbitration process in international commercial world and

bring down the problems at the time of the enforcement of an interim order or a final arbitral

award, which has occurred simply due to the inconsistencies between legal systems.

60 Law and Practice of International Commercial Arbitration – Alan Redfern and Martin Hunter – South Asian

Edition 2006, Chap. 3-12



283

Enforcement against non-signatories to the Arbitration

agreement

Can arbitrators make an award against a party who is not a party to the arbitration

process? The answer is ―no‖. Arbitration is a private process between the parties who agreed

to submit their dispute to be resolved by arbitration. Final award therefore will be only

addressed to the parties of the arbitration.

There might be a situation where the arbitrators find it necessary to make an

interim order against a third party. Question is whether they have necessary powers to do so.

As an example, the arbitrators want a third party to stop destroying some of his own

property, which is crucial to the outcome of the final arbitration award. Or else, they may

want a third party to hand back something which is the subject matter of the arbitration and

without which the final award would be meaningless. Besides, a party may want to stop a

bank from paying a sum of money or freeze an account. In such situations, the party who is

seeking the interim order of the nature mentioned above must apply to the court.

In MD Army Welfare Housing Organization v. Sumangal Services Pvt Ltd,61

held

interim order issued by the tribunal may be addressed only to a party to the arbitration and

cannot be addressed to third parties. Moreover, in Lance Paul Larsen v. Kingdom of

Hawaii62

arbitral tribunal without any ambiguity has held that it has no jurisdiction against

non-parties.

According to the above-mentioned Court decisions, it is clear that the arbitrators do

not enjoy powers, which affects third parties. Likewise, they do not have power to enforce

orders.

When a party seeks an interim measure against a third party from a court, after

considering the seriousness and necessity of the relief, court would issue such order. Since it

is an order issued by a competent court, the party against whom the order delivered should

comply with that order. Even though present day courts are reluctant to interfere with the

arbitration process, they are always there to extend a helpful hand in matters, which are

outside the jurisdiction of arbitrators.63

However, for the courts to involve in the process of the enforcement, the particular

Court in the country where the enforcement being sought must have jurisdiction over the

parties. In the arena of international commercial arbitration the New York Convention has

acquired faith among many nations as an engine for recognition or enforcement of arbitral

awards. Hence, it is necessary to have an evaluation on the New York Convention regarding

the enforcement of interim measures in arbitration.

61[2003 (3) RAJ 447 (SC)] 62 Available at http://en.wikisource.org/wiki/Larsen_vs._Hawaiian_Kingdom_2000-05-22 63 See above Chapter 2, Sub para 2.1.1.- Involvement of Courts

http://en.wikisource.org/wiki/Larsen_vs._Hawaiian_Kingdom_2000-05-22



284

Applicability of the New York Convention on Recognition and

Enforcement of Foreign Arbitral Awards, to interim

measures

Article I paragraph 1 of the NY Convention sets out the application of the

convention.

This Convention shall apply to the recognition and enforcement of arbitral awards made in

the territory of a State other than the State where the recognition and enforcement of such

awards are sought, and arising out of differences between persons, whether physical or legal.

It shall also apply to arbitral awards not considered as domestic awards in the State where

their recognition and enforcement are sought.

Since the NY Convention does not define the term ‗arbitral award‘ one can argue

that any type of award, [irrespective of the fact that whether it is a final, partial or interim

award as long as it is identified with the word ‗award‘] rendered by an arbitral tribunal

should fall within the ambit of the Convention. If that is the case, all what the party seeking

recognition and enforcement with the aid of the NY Convention has to do is, to get the word

‗award‘ appear in the order rendered by the tribunal and by doing so he will very easily be

able to bypass all the obstacles created by an absence of a definition.

As Gary Born in his book International Commercial Arbitration describes, ―A

principal purpose of the Convention was to make it easier to enforce an arbitral award made

in one country in other nations‖. Nevertheless, controversy regarding the term ‗arbitral

award‘ had definitely seemed to impede the intention of establishing the New York

Convention being fulfilled.

Adequacy of Sri Lankan Arbitration Act, to deal with the issues of enforcement of

interim measures

Arbitration Law of Sri Lanka is governed by the Arbitration Act No. 11 of 1995, which

entered in to force on 01st August 1995. According to Hon. Wijeratne

64-

Arbitration Act of 1995 was the first Arbitration Law in South Asia to be based on the

United Nations Commission on International Trade Law (UNCITRAL) Model Law on

International Commercial Arbitration and inspired by the then draft Swedish Arbitration

Act.

However, Sri Lanka Arbitration Act is still based on the original version of the

Model Law and so far, no attempt had been taken to make amendments to incorporate the

changes adopted in 2006 to the Model Law.

64 Kanag-Isvaran K. (P.C) and Wijeratne S. S. - Arbitration Law in Sri Lanka – 2nd Edition 2007 – Article

―Arbitration in Sri Lanka‖ at pgs. 5, 6



285

The area of ‗Interim measures of protection‘ covers by the Sec.13 of the Arbitration

Act. The section states:

13 (1) An arbitral tribunal may, at the request of a party, order any

other party to take such interim measures as it may consider necessary to

protect or secure the claim which forms the subject matter of the dispute.

The arbitral tribunal may also order the party making such request to

provide the party ordered to take such interim measures, with security for

any expense, loss or damage that may be caused in taking such interim

measures:

Provided however that, other than in exceptional cases no such order

shall be made except after hearing the other parties.

13 (2) An order of an arbitral tribunal requiring the taking of interim

measures may be enforced by the High Court, on an application made

therefore(sic), by the party requesting the taking of such interim measures.

13 (3) An application to the High Court, under sub section (2), for the

enforcement of interim measures, shall be deemed not to be incompatible

with section 5 or the arbitration agreement or a waiver of the agreement.

Even though Sri Lanka ratified the New York convention on April 9, 1962 until

such time the Arbitration Act No. 11 of 1995 being enacted there were no legislations

available to implement the Convention within the country.

Nevertheless, unlike many States, Sri Lanka had acceded to the New York

Convention without any reservation. According to the new Arbitration Act, foreign arbitral

awards, irrespective of the country to which it was made shall be enforced by the High Court

subjected to the provisions of sec. 34 of the Act.65

Thereby, the drafters of the Act has made

Sri Lanka a country which is favourable to arbitration proceedings. Hence, it could be said

that Sri Lankan Courts have worked to ensure the success of the New York Convention.

“The need for Justice grows out of the conflict of

human interests. That is to say, if there were no

conflict of interests among mankind we should never

have invented the word justice, nor conceived the idea

for which it stands”.

Thomas Nixon Carver, Essays in Social Justice

65 Sec. 33 of the Arbitration act No. 11 of 1995



286

The Implications and Enforcement of

Competition Law in the South Pacific

Salvin Nand

Senior Lecturer, School of Law, University of Fiji*

Abstract

The economic characteristic of an economy, importantly its size and its remoteness from

trading partners greatly affects the competiveness and performance of a country‟s market.1

Accordingly, small insulated economies such as South Pacific Countries (SPCs) need to

formulate suitable policies that could compensate for at least some of these economic

concerns. This paper examines the application of competition law in the South Pacific

Region. It is recommended that in order for the SPCs to effectively implement regional

cooperation on competition law they need to enforce effective competition legislation and

efficient enforcement body. The enforcement authority must exemplify specific rules that can

successfully operate competition policies and represent the overall economic policies of the

South Pacific Region. To adapt to the restructuring of an economy, it is important for SPCs

to make necessary changes in their competition policy and competition legislation.

Keywords: Competition Law Policy, Development Impediments, Regional Cooperation.

Introduction

Even after gaining independence, South Pacific countries (SPCs) have remained dependent

on developed countries to benefit from export and import trades. Despite their limits of

natural and human resources, SPCs have an increasing desire to achieve optimum market

Mr. Salvin Saneel Nand LLM, (VUW), LLB, PDLP (USP), PGDPPG (UOF) is a Senior Lecturer in Law at the School of Law, the University of Fiji. His areas of interest lie in Intellectual Property, international competition

policy;Corporate Securities Laws and Public Policy issues. Email: [email protected] 1 Michal Gal ―The Effects of Smallness and Remoteness on Competition Law – The case of New Zealand‖ (2007)

14 Competition & Consumer LJ 16: available at http://www.lexisnexis.com (last accessed 02 April 2014).

mailto:[email protected]

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287

efficiency. In order to get this efficiency, the SPCs Governments have opted for single firm

approaches and granted exclusive rights to a number of companies for its services. The

increasing number of single firms started to cause market inefficiency as consumers were

feeling the rise in prices and short supplies and poor quality products. In short the Pacific

markets started to experience the presence of monopoly conduct and other anti-competitive

practices.

Recently the Pacific Island Forum Secretariat (PIFS) Ministers, during the 2007 Forum

Economic Ministers meeting (FEMM) at the Republic of Palau agreed to facilitate

Regulation and Regional economic Integration to improve regulation of foreign investment,

competition consumer protection and fair trading. These resolutions are clear reflection of

regional collaboration on prohibiting and suppressing anti-competitive practices at least in

the future. It was also noted that each of these themes suffer a number of problems, for

example; regulatory rules, weak institutions and implementation and regulatory processing

difficulties. However, the ministers failed to address in detail the challenges Pacific

countries will face in implementing competition law.

In light of the above conclusion, this paper attempts to analyze and examine the nature of

competition law in the SPCs and acts as an introductory guide by explaining the regional

cooperation of the South Pacific Region on competition law. Special attention is given to the

implications and effects of geographical, social and economic characteristics on the overall

economic development strategies of the SPCs.

The first part analyses the current competition regimes of the Pacific countries and shows

the influence of monopolies. Then the paper explains basic economic vulnerabilities

affecting economic performance of Pacific countries. The third part recommends a regional

cooperation for economic integration on competition law. This paper questions whether,

competition law is possible, but recommends that Pacific countries should first consider

accurately, whether and to what extent such complex law will be feasible. It is proposed that

SPCs should adopt either the Fijian or Papua New Guinea (PNG) competition law regime

for regional or sub-regional cooperation on competition law.

The Great Debate of Competition

A consumer thinks competition law is the means by which prices are controlled

while for a business competition it is the means of increasing turnover and profit.2

At the same time, in a market economy competition it is the means of sustaining

the efficient operation of markets and resources.3 Therefore competition ‗is better

than less‘ if allocative efficiency and consumer perspective of greater choice and

welfare is considered. One of the fundamental objectives of competition law is to

2 Jon Feil "Competition L a w and Policy: The Enforcement Role‖ in David and Goliath Competition Policy

(New Zealand Institute of Public Administration Seminar, 1 9 9 2 ) vol IX, 20. 3 Ibid.



288

promote competition by addressing anti-competitive behaviors and by ensuring that the

benefits of trade liberalization are not undermined by anti-competitive conducts.4

Competition law and trade liberalization have common goal to promote efficiency and

economic development. On one hand, competition law/policies control anti -competitive

practices of companies, on the other ―trade policy fosters this goal primarily through

the reduction of government imposed barriers to international commerce.‖5

Competition law is a difficult issue and it will be some time before SPCs will be

able to develop and implement appropriate competition law. Although introducing

competition laws can be rather a long term goal for most SPCs. The SPCs should

commence the socialization process for competition law at a medium term.6 Michal

S.Gal in her book, ―Competition policy in Small Market Economics‖, and Rory

McLeod in his report to Global Forum on Competition(―Competition policy in Small

economics: Issues Arising for New Zealand‖), argued that small economies face an

inherent tension in the development of their competition policy. For example‖ small

economy can only support a small number of competing firms and that many of the

firms in a small economy will struggle to attain minimum efficient scale when

catering to domestic only.7 Smallness is comparative notion. For example, New-Zealand

sometimes describes New-Zealand‘s economy as small, yet it seems large when

viewed from the perspective of Fiji. However, ―there will often be limited competition

in the domestic market because remoteness discourages foreign producers and

services, and the domestic market may be too small to support more than one

producer.‖8

Furthermore, Gal pointed out that small economies have three main economic

characteristics. That small economy has ―high industrial concentration levels, high

entry barriers and has inefficient levels of production.‖9 These completion problems

are aggravated when SPCs inherent disadvantages (geographical) are viewed together.

More importantly, Michal Gal explains that for a small economy it is important that

the ―goals of competition policy should be clearly defined and that economic

efficiency should be given primacy over other goals.‖10

While McLeod suggests that

4 Price Water House Coopers "Competition L a w for Developing E c o n o m i e s ‖ (Asia-Pacific E c o n o m i c Cooperation Trade and Investment Commit tee , S i n g a p o r e , August 1 9 9 9 ). 5 WTO Working Group on the Interaction between Trade and Competition Policy Synthesis Paper on the

Relationship of Trade and Competition Policy to Development and Economic Growth (WTIWGTCPIW80,

Geneva, 1998) Para 29. 6 Spier Consulting Regulation and Regional Economic Integration: A Benchmark Study and Way Forward (Prepared for Pacific Island Forum Secretariat, 2006). www.forum.org.fi (last accessed, 15 April 2 0 1 4 ). 7 Michal Gal "Competition Policy for Small Market Economies" (Harvard University Press, Cambridge,

2001) 46-48; Organisation for Economic Co-operation and Development Competition Policy in Small Economies: Issues Arising For New Zealand (Paris, 2002) 8. 8 Geoff Leane Barbara Von Tigerstrom (Ed) International Law Issues in the South Pacific (Ashgate

Publishing L i m i t e d , England, 2005) 235. 9 Michal Gal "The Effects of Smallness and Remoteness on Competition Law - The case of New Zealand"

(2007) 14 Competition & Consumer LJ 16; available at http://www.lexisnexis.com (last accessed 10 April

2014). 10 Ibid.

http://www.forum.org.fi/

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289

small economies like SPCs completion law needs a ―flexible set of instruments that

can be applied on a case-by-case basis to reduce competition concerns while

promoting efficiency.‖11

Finally both Gal and McLeod recommended that for small

economies to benefit from competition law they need to consider many issues. Firstly

small economies should fully consider the efficiency consideration.12

Secondly small

economy should avoid adopting simple rules as market indicators and should not

include rigid per se rules in competition law.13

All in all small economies need to be

more cautious than bigger economies when enforcing competition law because market

efficiency comes at a higher price.

South Pacific Approach to Competition Law

At present Fiji (Commerce Act 1998)14

and PNG (Independent Consumer and Competition

Act 1992)15

are the only two SPCs which have complex competition legislation and

administering bodies for competition law, namely the Commerce Commission (Fiji) and the

Consumer and Competition Commission (of PNG). Countries such as Samoa, Solomon

Islands, Tonga and Palau have competition legislation which only monitors specific issues,

while they are yet to be proclaimed. Also the competition legislation of these countries fails

to monitor and prevent basic anti-competitive behaviors. Moreover, there are regional

understandings on anti-competitive behaviors mainly through PICTA trade agreements.16

Nearly all SPCs have legislation to protect consumer welfare and promote fair trading

among traders. Due to the scope and limitations of this research paper only competition

related legislation will be considered and discussed.

Fiji and PNG have existing authoritative legislation on competition law, while other Pacific

Countries have specific legislations prohibiting specific anti-competitive conduct. This is

because most SPCs only experience ―significant problems in specific sectors or only

periodically and that business conducts such as ‗mergers and acquisitions occur

infrequently‘.‖17

Rather more important problems for the South Pacific market are that,

traders create market manipulation and deceive the uninformed consumers through

inadequate labeling of products and by selling poor quality products.18

However, these

challenges are addressed by fair trading and consumer regulations. Therefore, lack of

11 OECD Global Forum on Competition ― Competition P o l i c y in Small Economies: Issues Arising For New

Zealand‖ 2002, Paris. 12 Gal above n 9. 13 Ibid. 14 Commerce Act 1998 (FJ). 15 Independent Con su mer and Competition A c t 1992 (PNG). 16 Pacific Island Countries Trade Agreement ( Nauru, 2001) art 2 (c), 7(7), 8 (4), 14 (3). 17 Castalia Strategic Advisors Regulation and Regional Economic integration: Regional options/or

Economic Regulation (prepared for Pacific Island Forum Secretariat, 2007) 15 www.forum.org.fj

(last accessed 5 March 2014). 18 Ibid.

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290

competition regulations does not concern many SPCs economies because their small market

for goods and services are controlled or distributed by the governments themselves.19

More

competition is better than less. The Pacific countries should implement their regional

integration on competition law. Even though it will be a long time before regional

cooperation will be transferred from paper, SPCs should act closely to limit the effect of

anti-competitive firms like monopolies.

South Pacific Monopolies

Monopolies have in recent years attracted considerable Governmental and academic debate

due to its nature and its effect on Pacific markets. While the concept of monopoly and its

effect on the efficient market is complex, the present research only explains the basic

reasons why monopolies are preferred and accommodated in the SPCs. A monopoly is

usually described as a single seller selling a unique good or services with ‗no close

substitutes‘. Also a monopolist has a high degree of control over the price at which the

product is sold and has the ability to exclude competition.20

In Burns Philip Company

Limited v Lees Trading Company Limited, the court held that ―…while monopolistic

companies are providers of vital goods or services monopolies can also increase or set

virtually their own price at will.‖21

There are a number of important reasons or barriers to

entry which can be used to explain why there is only one firm in a market selling a product

while other firms are excluded. Firstly, often companies have control over key

resources/input. For example the mining companies in Fiji and PNG, as these companies

have control over the gold and copper supplies which gave them monopoly over the sale of

these resources.

Secondly, to set up a particular company requires a high amount of capital and usually on

firm tends to afford such costs. A good example is the oil producers, ―as it would be

impossible for a few firms to break into the industry unless it had vast sums of money to

spend on the necessary infrastructures.‖22

Thirdly, there exists what is known as ‗legal

monopoly‘, where a Government grants a particular firm exclusive right to produce or

supply goods or services.23

Many of the SPCs Governments have granted exclusive rights to

public franchises such as the Post Office for delivering letters. Finally, most SPCs have

granted exclusive licenses to companies to provide goods or services for which these

19 Castalia Strategic above n 17. 20 George Schaffer Monopoly and Competition ( 2Ed, Longman Group Limited, London,

1970) II. 21 Burns Philip Company Limited v Lees Trading Company Limited (25 November 1997) CA 643/1985

(HC Fiji) Scott 1. (The court gave examples of sugar or public transport in the Fijian context). 22 Douglas McTaggart, C h r i s t o p h e r Find ly, Michael Parkin, Economics (4ed, Pearson Education Australia, Australia, 1953,220. 23 Ibid.



291

companies have monopolies.24

For example the electricity authority, the water utilities, and

is some SPCs, the telecommunication companies are granted long term contract licenses to

enjoy monopolistic profits. Therefore, the presence of anti-competitive firms greatly affects

the competitiveness and performance of the SPCs markets.

Pacific Island Countries do not suffer from large mergers or takeovers, among firms, but the

existing monopolies have recently provoked a number of judicial rulings in different island

states. In National Capital District Interim Commission v Crusoe Pty Limited25

the court

held that ―the opposite of competition is monopoly, oligopoly and autocracy.‖ In recent

years the government owned telecom monopolies in most SPCs have experienced

competition. Thus the existences of competition policies have challenged the Pacific

Governments to grant operation licenses to new competitors. This is evident in Fiji, Vanuatu

and PNG through the recent court decision against the government protected telecom

monopolies, while in other SPCs, there are strong public concerns to deregulate such

monopolies.

The leading decision on promoting fair competition in Vanuatu was declared through

Telecom Vanuatu Limited v Minister for Infrastructure and Public Utilities.26

The court by

explaining the public policy of consumer welfare concluded that ―…the telecommunication

services… were not available to as wide a section of the Vanuatu public… as possible,

subject to paying the applicable general fee.‖27

In Fiji (most technologically developed

amongst SPCs) the telecommunication industry is made up of three major monopolies which

have exclusive license protection. They are Telecom Fiji Limited, Vodafone Fiji Limited

and the Fiji International Telecommunication Limited (Fintel). Both ―FINTEL and Telecom

Fiji operate under the umbrella of Amalgamated Telecom Holdings; a company set up under

the privatization of the state‘s telecommunications holdings.‖28

In 2003 the American info-tech company (TELPAC) launched a lawsuit against the Fijian

Government which amounted to US$100 million in damages. However the court declined to

ruled in favour of FINTEL, since FINTEL was a foreign owned company and was only

operating to provide internet Kiosk services.29

When FINTEL changed its nature of business

by introducing a call back service, a Government license was required. However exclusive

licenses were granted only to selective protective telecommunication companies. In

Summation, this case showed the Government‘s preference to keep telecom as a monopoly.

24―Economics” above n 22. 25 National C a p i t a l District Interim C o m m i s s i o n v Crusoe Pty Limited 1993] PNGLR 1 3 9 (NC) Brunton J. 26 Telecom Vanuatu Limited v Minister/or Infrastructure a n d Public Utilities (S Apli12007) C A 32/2006 (CA Vanuatu). 27

Ibid. 28 "Big Law Suit Challenges Fiji bid to keep Telecom monopoly‖ (12 April 2002) Pacific Magazine

Suva 1; http://www.paciticmagazine.net (last accessed 2S April 2014). 29 State v Fiji Island Trade & Investment Bureau , Ex parte T E L P A C (9 October 2003) HBJOO120/2002 ( HC

Fiji) Jitoko J.

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292

This is because ―sometimes there is a need to induce the providers to invest, which can often

be substantial and that it is unlikely to occur in a fully competitive business environment.‖30

Moreover in PNG the legal battle between Telikom PNG Limited v Independent Consumer

and Competition Commission31

concluded on a high note by promoting competition in the

PNG market and once and for all ended the government supported Telikom Monopoly. This

case is the leading legal authority for the PNG legal system which gives effect to the newly

enacted competition legislation (Independent Consumer and Competition Commission

Act32

). This legal authority is a good precedent, as it explains the effectiveness of

competition law and misuse of market power in small economies.

Overview of the South Pacific Economy and Challenges

Developing SPCs jointly occupy an area of over 30 million square kilometers of the

Pacific Ocean, but in fact have a total land area of about 525 thousand square

kilometers. Given the small size of the SPC domestic market, their limited level of

economic development and the high level of technological difficulties in production

processes, SPCs have significant dependence on imports for processed and

manufactured products.33

Pacific Countries are vulnerable to many obstacles, which

considerably affect their economic Development. One might say that these SPCs are

disadvantaged three times over‘.34

The latest Asian development Bank survey shows that

seven of the SPCs are regarded as weak performers countries (FSM, Kiribati, PNG, the

Marshall Islands, Solomon Islands, and Vanuatu), while Nauru, Tonga and Tuvalu

were characterized as fragile and in particular are at significant risk.35

Although the

Cook islands , Fiji Islands, Palau, and Samoa have performed stronger overtime

however due to their geographical, environmental, social, and political factors, even

these countries are at particular risk.36

There is no exact definition of a ‗small‘ state or economy, but an appropriate

definition depends on the context and the particular issues being examined.37

In the

context of trade and economic development the size of a country can be measured

by its population, by measuring a country‘s GDP, by calculating the total land area,

30 The Telecom Fiji Limited.com www.tfl.com (last accessed 28 April 2014). 31 Telikom PNG Limited v Independent Consumer and Commission (22 June 2007) WS1599/2006 (NC Papua

New Guinea). 32 Independent Consumer and Competition Act 1992 (PNG). 33 Paula Ciriklyasawa, Senior Economist ―Fiji Island Background Country Report: Winning National Strategies for

Export Development‖ (Paper presented to the World Export Development Forum, Monteux Switzerland, 8-11 October 2007). 34 Geoff Lane Barbara Von Tigerstrom (Ed) International Law Issues in the South Pacific (Ashgate Publishing

Limited, England, 2005) 233. 35 Asian Development B a n k Working in Fragile Environments A Mid Term Review of the Pacific Strategy

2005-2009 (Manila, 2008) 20. 36 Abid. 37

Leane above n 34, 234.

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or by taking a comparison of all of these four variables to consider the size of the

particular economy.38

However many, researchers prefer to use the population as the size

indicator variable.39

Nevertheless for the SPCs, it does not matter which variables are

used to consider its economic size because whatever variables are considered, SPCs

can be judged small. There are many disadvantages associated with being economically

and geographically small. Firstly, small geography means countries have limited natural

resources and in the SPCs these limited resources are not fully utilized for production

and export. For instance, the land ownership problems and political instabilities are

the two major inhibiting factors. Therefore, the smallness of an economy significantly

affects a country‘s comparative advantage.

Most of the SPCs are physically remote and isolated from their trading partners, as

SPCs struggle to benefit from export and import trades.40

Since SPCs are mainly

isolated from their trading partners and are scattered far apart from each other, the

only means of transport available for SPCs is either by sea or by air, which is quite

expensive.41

Above all the smallness of the SPCs only allows them to accommodate

small and fragmented cargoes which increase the per unit cost of production.42

Since

SPCs are mainly located out of major sea or air transport routes they fail to benefit

from modern and technologically advanced means of transport.43

In addition, SPCs are highly dependent on foreign sources to aid their economic

deficit caused by high import expenditure compared to low export revenues.44

For

example Pacific Island Countries receive bi-lateral grant assistance from developed

countries such as Australia, New-Zealand, United States, Japan, and the European

Union. Also Financial bodies like the World Bank and International Monetary Fund

have significantly provided financial assistance to the SPCs. In addition the Asian

Development Bank alone provided $462.4 million dollars for the SPCs during the

period of 2005 to 2007 known as official development assistance in order to help

SPCs bridge their annual fiscal deficits.45

Despite such aid SPCs countries have failed to

experience high economic growth. An empirical study on the South Pacific titled ―Aid

has failed the Pacific‖ highlighted that most of the aid, which totaled US$50 billion

during 30 years (1951-2000).46

The study showed that the aid was spent on

government consumption by elites and bureaucracy, and often diverted from the

38 Ibid, 234. 39 Lino Brigulio "Small Island Developing States and their Economic Vulnerabilities" (1995) 23 World

Development 1615, 1617. 40 Ibid. 41 Brigulio above n 39. 42 Brigulio above n 39. 43 ibid, 1678. 44 Brigulio above n 39, 1679. 45 Asian Development B a n k above n 13, 2. 46 Jayaraman and Evan Lau Does External Debt lead to Economic Growth in the Pacific island Countries:

An Empirical S tu dy . (Working p a p e r , University o f the South Pacific Department of Economics, 2008.)



294

intended purposes, despite the fungible nature of foreign aid.47

Although, external

borrowing brings economic growth its fungible nature increases the external debts for

the SPCs.

Consequently, the characteristics of smallness and isolation from major world markets

have been exacerbated by a number of a man made challenges. Among the

common examples are ―increasing globalization, limited market access, political

insatiability, a deteriorating security situation, poor governance, limited access to land

and slow public sector reforms.48

If all these factors are added then the once labeled‖

Pacific Paradox‖ becomes true and the figures in table two are justified. As to why

SPCs have very little GDP per capita growth for the past three years compared to

other Asian countries. Overall, vulnerabilities in this context means ―exposure to

exogenous shocks‖ over which the PSCs have very little or no control and have

―relatively low resilience to withstand and recover from these shocks.49

The Case for Regional Cooperation

The SPCs are small and have limited human and natural resources , to function

effectively on the world trading arena. Therefore the SPCs decide to create regional

cooperation among Pacific countries. In 1947 the SPCs agreed to form the South

Pacific Commission, as this marked the first sign of Pacific regionalization.50

The

main purpose of the Commission was to ―provide research and counseling services in

health, social, and economic development to island governments.51

However, due to

political reasons the South Pacific Commission failed. To fill the political gap the South

Pacific Forum (SPF) was established in 1971. Later the SPF established the South

Pacific Bureau for Economic Co-operation, now the South Pacific Forum Secretariat

(SPFS).

In July 2006 during the Forum Economic Ministers Meeting (FEMM), the Pacific Islands

Forum Secretariat (PIFS) introduced a proposal to have regional economic integration on

Competition law.52

Then one year later, the Ministers of PIFS in July 2007 agreed to

reaffirm their support for the ―establishment of regional or sub-regional Competition,

Fair Trading and Pricing and Access regulatory Authority.‖53

The Minister‘s relied on

47 Ibid. 48 Regulation a n d Regional Economic Integration: Regional Opt ions for Economic Regulation above n 6. 49 Leane above n 34, 235. 50 Pacific Islands www.britannica.com (last accessed 22 February 2014). 51 Norman Padelford "Regional Cooperation in the South pacific: Twelve Years of the South Pacific

Commission" (1959) 13 International Organization 383-384, 52 Regulation an d Regional Economic Integration: A Bench Mark Study and Way Forward above n 31. 53 Pacific Islands Forum Secretariat Regulation and Regional Economic Integration: Regional Options for

Economic Regulation (PIFS(07) FEMP.04, Koror, 2007) Para 3 www.forum.org.fj (last accessed 5 April 2014).

http://www.britannica.com/




295

two individual reports to implement a long term regional goal on competition and

other economic priorities. During the FEMM in 2006, the Spier Consulting group

submitted the report titled;(Regulation and Regional Economic Interaction: A

Benchmark study and Way Forward). During the FEMM in 2007, the Castalia

Strategic Advisor submitted a report titled; (Regulation and regional Economic

Integration: Regional Options for Economic Regulations). Therefore, these two reports

will be heavily relied on to explain the approach the SPCs have decided for

Competition Law.

At the outset of these two reports it shows that SPCs are inviting their respective

governments to encourage ―fair and effective competition in order to provide

consumers with the greatest range of choice among products and services at the

lowest cost.‖54

It is the desire of the SPCs to implement a medium to long term

Regional or Sub-Regional Regulatory and Advisory Authority. As the authority will

advise and implement competition, pricing, access, fair trading and consumer protection

matters for the SPCs. However each Pacific Government‘s should work collectively

and independently in making real the goal of regional integration.

The reports proposed that the Regional Regulatory and Advisory body will advise the

SPCs by deploying a cost-effective combination of full-time and contracted staff or

by seeking assistance from Australia or New Zealand to train regulatory staff.55

Also

the report shows that the current difficulties of regulatory rules, organizations,

processes and implementation issues will be eliminated through regional cooperation.56

As a result, The SPCs can create a workable frame on economic integrations for

future regional integrations. Moreover, the PIFS recommends implementing a regional

regulatory body either by duplicating the New-Zealand Commerce Commission or the

Papua New Guinea Independence Consumer and Competition Commission. In addition,

the report illustrates that SPCs will only benefit from competition law if they adopt

a model law which is specially developed for the region. Therefore, the SPCs

governments can easily modify the rules if necessary in light of their specific

circumstances.57

By recognizing that smaller countries have specific policy needs and

have certain economic vulnerabilities, the PIFS totally disagreed with simply copying

a competition legislation model from larger jurisdictions.58

However, the PIFS agreed

54 Pacific Island Forum Secretariat Regulation and Regional Economic Integration: A Bench Mark Study and

Way Forward (PlFS (06) FEMH.07, Honiara, 2006) 4 55 Pacific Forum Secretariat Consumer Protection ( SPFS (00) FEMN.21, A l o f i ) 17 www.forum.org.fj (last accessed 5 April 2014). 56 Castalia Strategic Advisors Regulation and Regional Economic integration: "Regional options for Economic Regulation" (Prepared for Pacific Island Forum Secretariat, 2007) 40 www.forum.org.fj (last

accessed 1 5 April 2014). 57 Ibid. 58

Castalia Strategic above n 62.





296

to consider the New Zealand, Australia, Papua New Guinea or Fijian Competition

Regimes.

Competition Model

Since Fiji and Papua New Guinea has somewhat the same economic and social

features of other SPCs, this paper recommends that adopting either the Fijian or

PNG competition regime will best suit the needs of other countries at a regional

level. In Fiji the policy objective of promoting competition is principally affected

through two main legal instruments: The Fair Trading Decree59

and The Commerce

Act.60

The Commerce Act established an independent statuary authority (Commerce

Commission) to monitor and deter anti-competitive actions. The prime objective of the

Commerce Commission is to promote effective competition in the interest of the

consumers.61

The Commission also ensure non-discriminatory access to monopoly and

near monopoly infrastructure. Moreover the Commission allows authorization and

notification of certain restrictive trade practices and recommends appropriate prices in

markets where competition is limited.62

At the same time the Fair Trading Degree

seeks to promote consumer welfare by prohibiting anti-competitive behaviors and

unfair business practices in the Fijian market.63

The Papua New Guinea Government took a different approach compared to Fiji and

enacted the Independent Consumer and Competition Commission Act (ICCC Act). The

ICCC Act introduced a new competition regime to regulate a number of State owned

utilities.64

The Act declared electricity services, telecommunications services, ports and

harbours services, postal services and third part vehicle insurance to be regulated.65

The ―Act‖ also introduced a statutory regulatory body, the Independent Consumer

and Competition Commission. The Commission aims to enhance and the protect

consumer welfare of Papua New Guinea citizens by promoting competition, fair

trading and economic efficiency.66

The Act also promotes the regulation of product

price, quality reliability of significant goods and services.67

While competition rules are

complex, the FEMM declared that the Fiji and PNG competition regime have

achieved some success in terms of its applicability and understanding by

stakeholders.68

Therefore, it is essential for small economics like SPCs to adopt or

59 Fair Trading Decree 1992 (FJ). 60 Commerce Ac t 1998 (FJ). 61 Fair Trading Decree 1992 (FJ). 62 Commerce Ac t above n 60, s9. 63 Fair Trading Decree above n 61. 64 Independent Con su mer a n d Competition A c t 1992 (PNG). 65 Ibid. 66 Independent Con su mer and Competition a b o v e n 64, 8 4. 67 Ibid, s4. 68 Regulation a n d Regional Economic In tegra t ion : A Bench Mark Study and

Way Forward above n 31,3.



297

implement such a competition regime which can be easily amended to suit the

changing circumstances of Pacific countries.

Conclusion

South Pacific Island nation‘s economies are unique and vulnerable and therefore need

special care from both their own Governments and by international trading partners.

Economic difficulties through geographical complexity are aggravated by manmade

difficulties which adversely affect the fragile SPCs economies. This paper argued that

SPCs need better and strong competition law since only two of the fourteen Pacific

Island Countries have stronger competition law. In light of the recent regional

economic integration on competition, foreign investment, pricing, access, consumer

protection and fair trading showed the regional caliber of SPCs.

Despite the efforts of regional cooperation, SPCs are faced with inherent tension in

small economy industries, as Gal described this as the ―basic conflict‖ created by

smallness. Therefore, SPCs will have to pay greater attention on specific issues when

implementing competition law and competition policies. One of the many immediate

considerations for SPCs is choosing the appropriate competition model and calculating

its effect to their small markets. However , the knowledge, approach and resource -

sharing forms of regional cooperation could benefit the SPCs. As the advantages of

regional cooperation among the Pacific countries are evident from previous regional

integrations.

―I believe [...] that while all human life is sacred there‘s nothing wrong with the death

penalty if you can trust the legal system implicitly, and that no one but a moron would ever

trust the legal system.‖

― Neil Gaiman, American Gods

http://www.goodreads.com/author/show/1221698.Neil_Gaiman




298

Application of Expert Evidence

In the Criminal Justice Arena

Purnima Parana Gamage,

Magistrate, Negombo.

A man of science, nevertheless he performed a series of experiments can refuse to come to

a conclusion, might he find no inter connection of his theory and practice.

But can a Judge say non liquet and refrain from deciding the case?

Even where the material placed before him is totally out of the spheres of his knowledge and

understanding, a Judge nevertheless has to determine the guilt or the innocence of the

accused.

As the criminal Justice system in any given jurisdiction concentrates in convicting

the guilt while ensuring the acquittal of innocence, the rules of evidence indubitably

provides for tribunals to resort to in such instances, to Expert Evidence, subject to further

and other rules of evidence.

Forensic Science is the scientific method of gathering and examining information about the

past.

In criminal law enforcement, Forensics is done to congregate specimens from the

scene of crime which the investigator deems essential to reconstruct the crime before the

jury and the tribunal. Interestingly before the tribunal, the crime is reconstructed through the

evidence of the expert who is the person of special skill and knowledge in the field to

explain the nature of existence, who will explain the cause and the effect inter connected

with the specimen.

One of the fundamental principles of Forensics is the Locards principle which

assumes that the every criminal leaves a trace at the crime scene. As Dr. Edmond Locard

supposes

….When he wants it, wherever he touches, whatever he leaves, even



299

without consciousness, will serve as a silent witness against him his

finger prints or his foot prints , but his hair, the fibers from his cloths,

the glass he breaks, the tool mark he leaves, the paint he scratches, the

blood or semen he deposits or collects. All of these and more bear mute

witness against him. This is evidence that does not forget. It is not

confused by the excitement of the moment. It is not absent because

human witnesses are. It is factual evidence. Physical evidence cannot

be wrong. It cannot perjure itself, it cannot be wholly absent. Only

human failure to find it study and understand it can diminish its

value….‖1

However with the passage of time some forensic techniques, believed to be scientifically

sound at the time they were used, have turned out to have much less scientific merit or none.

Some such techniques include,

a) Comparative bullet-lead analysis was used by the FBI for over four

decades, starting with the John F. Kennedy assassination in 1963. The

theory was that each batch of ammunition possessed a chemical makeup

so distinct that a bullet could be trace back to a particular batch or even a

specific box. Internal studies and an outside study by the National

Academy of Sciences found that the technique was unreliable, and the FBI

abandoned the test in 2005.

b) In at Least two cases bite - mark evidence has been used to convict people

of murder who were later freed by DNA evidence.

Hence the criminal justice administration in various jurisdictions has evolved over time to

receive expert evidence in emerging bio-technological fields through rules of evidence

aimed at a fair justice.

In this exercise three factors relevant to determining the admissibility of expert opinion

evidence were summarized by King CJ in the Australian case of Bonython.2

(1) Whether the subject matter is such that a person without

instruction or experience in the area would be able to form a sound

judgment on the matter without the assistance of a witness possessing

special knowledge or experience in the area.

(2) Whether the subject matter forms part of a body of knowledge or

experience which is sufficiently organized or recognized to be accepted as

a reliable body of knowledge or experience, a special acquaintance with

which by the witness would render his opinion of assistance to the court.

1 Dr. Edmond Locard 1942 Crime Investigation: physical evidence and the police laboratory. Interscience

Publishers,Inc. : New York 2 (1984) 38 SASR 45, 46 to 47 (Supreme Court of South Australia).



300

(3) Whether the witness has acquired by study or experience

sufficient knowledge of the subject to render his opinion of value in

resolving the issues before the court.

A fourth requirement is that the expert must be capable of providing an impartial

opinion in recognition of the fact. An expert‘s overriding duty is to the court and not to the

party calling him to testify as stated in Field v Leeds City Council 3.

The Law Commission for England and Wales in its Consultation paper no 190 of 2010

reflects the basic premise that expert evidence must satisfy a minimum standard of

evidentiary reliability to be admissible in criminal proceedings, whether the party adducing

it is the prosecution or the accused. Indeed, the common law, though vague in this area,

already recognizes that expert evidence of insufficient reliability should not be admitted.4

The question, as to its view, then is not whether there should be an admissibility

threshold for expert evidence in criminal proceedings but: what is the best way to address

the problem of determining sufficiency of evidentiary reliability?

The Commission proposes four realistic options:

(1) Exclusionary discretion without guidance.

Expert evidence would simply be treated like other evidence generally, so

permission to adduce expert evidence could be refused if its probative

value is outweighed by the danger that its admission would mislead,

distract or confuse the jury5.

(2) Exclusionary discretion with guidance.

Permission to adduce expert evidence could be refused on the general

ground that its probative value is outweighed by the danger that its

admission would mislead, distract or confuse the jury, but specific

guidance would be provided to assist the trial judge in his or her

determination of reliability.

(3) An admissibility rule requiring consensus amongst experts in the field.

This option would introduce a preliminary admissibility test for expert

evidence which would equate evidentiary reliability with expert

consensus.

(4) An admissibility rule requiring the trial judge to assess the evidentiary

reliability of the tendered evidence.

The legal perception on Expert evidence in Federal Court of the United States of America

can be summarized as follows.

3 [2001] 2 CPLR 129 4 Ciantar [2005] EWCA Crim 3559, 5 Any admissible prosecution evidence may be excluded as a matter of judicial discretion by the application of s

78(1) of the Police and Criminal Evidence Act 1984.



301

Rule 702 of Federal rules of Evidence: Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or

education may testify in the form of an opinion or otherwise if:

(a) the expert‘s scientific, technical, or other specialized knowledge will

help the trier of fact to understand the evidence or to determine a fact in

issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts

of the case.

On 25th

June 2009 the US Supreme Court issued a 5-TO-4 DECISION IN Melendez-diaz vs.

Massachusetts6 stating that crime laboratory reports may not be used against criminal

defendants at trial unless the analysts responsible for creating them give testimony and

subject themselves to cross-examination. Writing for the majority, Justice Antonin Scalia

referred to the National Research Council report in his assertion that ―Forensic evidence is

not uniquely immune from the risk of manipulation‖

Followed by this the Advisory Committee on Proposed Rules amending the Rule 702 has

observed following facts in its report submitted in December 2011.7

Rule 702 has been amended in response to Daubert v. Merrell Dow

Pharmaceuticals, Inc.,8

and to the many cases applying Daubert,

including Kumho Tire Co. v. Carmichael9. In Daubert the Court charged

trial judges with the responsibility of acting as gatekeepers to exclude

unreliable expert testimony, and the Court in Kumho clarified that this

gatekeeper function applies to all expert testimony, not just testimony

based in science.

Daubert set forth a non-exclusive checklist for trial courts to use in

assessing the reliability of scientific expert testimony. The specific factors

explicated by the Daubert Court are

6www.supremecourt.gov./opinions cited as 557 U.S. 305 (2009) 7 http://www.law.cornell.edu/rules/fre/rule_702 8 509 U.S. 579 (1993), cited at opcit 39 9 119 S.Ct. 1167 (1999). cited at opcit 39

http://en.wikipedia.org/wiki/Case_citation



302

(1) whether the expert's technique or theory can be or has been tested—

that is, whether the expert's theory can be challenged in some objective

sense, or whether it is instead simply a subjective, conclusion-nary

approach that cannot reasonably be assessed for reliability;

(2) whether the technique or theory has been subject to peer review and

publication;

(3) the known or potential rate of error of the technique or theory when

applied;

(4) the existence and maintenance of standards and controls; and

(5) whether the technique or theory has been generally accepted in the

scientific community.

Courts both before and after Daubert have found other factors relevant in

determining whether expert testimony is sufficiently reliable to be considered by the Trier of

fact. These factors include:

(1) Whether experts are ―proposing to testify about matters growing

naturally and directly out of research they have conducted independent of

the litigation, or whether they have developed their opinions expressly for

purposes of testifying.‖10

(2) Whether the expert has unjustifiably extrapolated from an accepted

premise to an unfounded conclusion.11

, noting that in some cases a trial

court ―may conclude that there is simply too great an analytical gap

between the data and the opinion proffered.

(3) Whether the expert has adequately accounted for obvious alternative

explanations as in Claar v. Burlington12

where the testimony excluded

where the expert failed to consider other obvious causes for the plaintiff's

condition and in Ambrosini v. Labarraque13

where the possibility of some

un-eliminated causes presents a question of weight, so long as the most

obvious causes have been considered and reasonably ruled out by the

expert.

10 Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995) 11 General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) 12 N.R.R., 29 F.3d 499 (9th Cir. 1994) 13 101 F.3d 129 (D.C.Cir. 1996)

http://www.law.cornell.edu/jureeka/index.php?doc=F3d&vol=43&page=1311



303

(4) Whether the expert ―is being as careful as he would be in his regular

professional work outside his paid litigation consulting.‖as held in

Sheehan v. Daily Racing Form, Inc.,14

since Daubert requires the trial

court to assure itself that the expert ―employs in the courtroom the same

level of intellectual rigor that characterizes the practice of an expert in the

relevant field‖.

(5) Whether the field of expertise claimed by the expert is known to reach

reliable results for the type of opinion the expert would give. Daubert's

general acceptance factor does not ―help show that an expert's testimony is

reliable where the discipline itself lacks reliability, as, for example, do

theories grounded in any so-called generally accepted principles of

astrology or necromancy.‖ Similarly in Moore v. Ashland Chemical,

Inc.15

, a clinical doctor was properly precluded from testifying to the

toxicological cause of the plaintiff's respiratory problem, where the

opinion was not sufficiently grounded in scientific methodology and in

Sterling v. Velsicol Chem. Corp.16

, rejecting testimony based on ―clinical

ecology‖ as unfounded and unreliable.

The Code of Criminal Procedure Act governs the procedure in admitting expert evidence in

criminal proceedings, in Sri Lanka , particularly by section 414.

Interestingly the section permits certain reports to be admissible in evidence, without calling

the person making such report unless there is an issue regarding the identity of subject of the

examination and as long as the defense does not require the testimony in open courts by the

Analyzer.

However do such reports presented in court acquire the same credibility and evidential

value as much as evidence testified in courts acquire ?

This issue has been severally discussed in Sri Lankan Courts.

In Perera Vs. Dharmarathne, Excise Inspector 17

the Court held that it is the duty of the

Court under section 414(6) proviso of the Criminal Procedure Code to summon the

Government Analyst if either party to a case makes application that he should be summoned

to give evidence with regard to his report.

On the other hand this decision was distinguished in the case of King Vs. Gunawardena 18

on the subject holding as follows.

14 104 F.3d 940, 942 (7th Cir. 1997) 15 151 F.3d 269 (5th Cir. 1998) 16 855 F.2d 1188 (6th Cir. 1988) 17 (1946) 47 NLR 381 18 (1951) 52 NLR 103






304

The provisions of section 414(6) of the Criminal procedure Code which

makes admissible in evidence the report of the Government analyst

upon any matter or thing duly submitted to him for examination or

analysis, are not confined to matters or things submitted to him for

―chemical Analysis‖. Therefore his report on a question of ballistic is

admissible in evidence without calling him, subject to the proviso

……………….

It is the duty of the Trail judge in such cases to tell the jury that they

should appreciate that in considering the weight to be attached to the

report it had been admitted without being tested by cross examination.

It is also the duty of the Judge to draw attention to any surrounding

facts or circumstances which may tend to support or negative the

correctness of the facts or inferences stated in the report………….

Where the AG has committed a case for trial before a higher Court ,

merely placing the report of the Government analyst as an exhibit in the

list of productions without adding the name of the Government analyst

to the list of witnesses, it is open to question whether the prosecution

can request the court to summon the Government analyst as a witness

for prosecution ( as oppose to above case Perera Vs. Dharmarathne,

Excise Inspector ) 19

the right of the defense to request the court under

the section…………… to summon that officer as a witness for the

defense cannot be questioned.

Similarly in a prosecution for possession of unlawfully manufactured liquor under the

Excise Ordinance where the sole evidence relied on by the prosecution was the report of the

Government analyst that the liquor in issue does not fall within the categories of excisable

articles as specified in the Act, the Court in Ebert Fernando Vs. Goonawardena 20

held that

the Government Analyst report was not sufficient to prove beyond reasonable doubts that

the liquor in question was unlawfully manufactured.

Although the section 414(3) defines any Medical Officer within the section 414(1), in

Darmasena Vs. OIC Kadugannawa Police21

in a prosecution for causing grievous hurt, a

medico-legal report of Lecturer in Forensic Medicine who is not employed under the

Government as a Medical Officer was held to inadmissible in evidence.

Further in Gamini Dolawatte Vs. AG22

it was held that while a medico-legal report is

admissible under section 414(1) of the Criminal Procedure Code , hearsay evidence by way

19 emphasize added 20 (1957) 58 NLR 22 21 (1971) 73 NLR 359 22 1988 (I) SLR 221



305

of case history embodied in such a report is not admissible as such history is information not

ascertained by the Doctor from his own examination of the injured.

An interesting point regarding the evaluation of expert evidence given in the lower court by

a Appellate Court was discussed in the case of The Queen Vs. Baron23

which was followed

in Karunathilake Vs. Karunathileka 24

. Accordingly in examining witnesses it is the duty of

the Judge to elicit from him and record who he is, what his station in life is, and where he

lives so that the Appeal Court may have some material to form an opinion as to their means

of knowledge and credibility.

The Evidence Ordinance governs the admissibility and relevance of Expert Evidence given

in the criminal proceedings.

Although in one hand the Ordinance provides for admission of opinions and on the

other hand provides Expert opinion to be relevant under the section 45 and 46 of the

Ordinance as required by the ordinance to be relevant in order to legitimize the reception of

such opinion, reception of opinion is strictly limited by the parameters of the same section.

A) For example in the light of the section the matters in respect of which expert

opinion is admissible are any one or more of foreign law, science , art, the identity

or genuineness of handwriting or finger impressions , palm impressions or foot

impressions. Although one may feel that term ―science‖ and ―art‖ shall be

interpreted to intrude almost everything and anything under the sun and moon, The

Sri Lankan Courts clearly suggests boundaries of the subject matter.

Accordingly in Regina Vs. Pinhamy 25

where the expert opined that skull produced

in the case was that of the deceased by super imposition of an enlarged photograph

of the deceased on the photograph of the skull, the Court of Criminal Appeal

rejected the evidence on the basis that identification of deceased persons by super

imposition of photographs has not been established as a science or art within the

purview of section 45.

Similarly the expert evidence of behavior of tracker dogs is ousted where in an

earlier case Regina Vs Meerasaibo 26

the Court has refused to accept opinion of the

police witness as to the behavior of the police cannel since it is not an established

science or art. Further in Kanapathipillei Vs. The Queen 27

the Court of Criminal

Appeal elaborated that very convincing expert evidence is required to bring in

behavior of the police dog to the case as a relevant fact and this view was followed

in Gunawardena Vs. The Republic 28

where the accused a police sergeant was

23 (1874- 1915) 02 NLR 192 24 (1951) 52 NLR 300 25 (1955- 1956) 57 NLR 169 26 Evidence Ordinance with selected cases . Ekanayaka Jayawardena 2008 27 (1955) 56 NLR 397 28 1981 (II) SLR 315



306

charged with Murder of his alleged mistress at Galenbidunuwewa, acquitting the

appellant.

Interestingly this position expanded in the famous case of The Queen Vs.

Kularathne 29

where conflicting opinions of both experts depend on an examination

of potassium content in the seven deceased‘s stomachs whose antecedents were

unknown. Both witnesses agreed that they would not contribute an article to any

scientific paper commanding any inference on the basis of the experiment made

with the seven stomachs. The Court held among other points, that expert evidence

led in this case did not amount to any scientific method of ascertaining a fact and

would have tended to misled the jury and its effect would have been damaging and

prejudicial to the first accused.

B) The section also requires that the person offering the opinion should be especially

skilled in the relevant field.

Whether the witness is especially skilled within the purview of the section is a

question of fact to be decided by the courts as held in Charles Perera Vs. Motha 30

.

Accordingly in the case of Fernando Vs. SI Kalubowila 31

it was decided where the

conviction was based on opinion of Sub Inspector specially trained by the Excise

Department for identifying excisable articles that the particular SI is not an expert

in terms of section 45 and hence his evidence is not relevant.

Quite opposing in the case of Solicitor General Vs. Victoria Fernando 32

where the

issue was whether the liquid is fermented toddy or not, T S Fernando J. regarded as

relevant the opinion of an Excise inspector who had 10 years experience in the

detection of similar offences. Similarly in Somalingam Vs. Jayawardena 33

, in a

prosecution for selling masoor dhal in excess of the maximum retail price, an

Inspector of Food who has sufficient experience and knowledge was held to be

competent to give evidence as an expert in order to establish the subject matter.

Hence it is not essential that the person should be proved to have series of

professional training to be regarded as an expert, rather the experience and practical

knowledge may serve to distinguish as an expert. However it is to be noted that the

fact that the witness has not been testified in a Court house before is no bar at all to

receive his expert evidence34

.

29 1976 CLW 01 30 (1964) 65 NLR 295 311959 CLW 93 32 (1964- 1965) 67 NLR 159 33 (1968) 70 NLR 214 34 1937 CLW 51



307

It is established practice that when an Expert is called upon to express his opinion,

the party calling him should elicit from him his qualifications and experiences in

order to establish his expertise. For example it was queered in the case of

Banddappuhamy Vs. Ekanayaka 35

whether failure to prove the competency of the

witness called as an expert renders his evidence irrelevant. This was further

elaborated in Solicitor General Vs. Podisira 36

where the Court held that it is the

duty of the prosecution to establish the expertise of the crown witness before

leading evidence.

On the other hand although the party calling the witness establishes his expertise, it

is the duty of the court to satisfy itself as to the expertise of the witness as done in

the above case.

As held in The Queen Vs. Kularathne in evaluating expert evidence, it is of crucial

importance that proper and correct directions to be given to the jury as to the expert

evidence and nothing should be passed to them as the opinion of the expert which is in fact

not.

E R S R Coomaraswamy37

identifies three purposes which are to be served by expert

evidence in a criminal case in the light of an English case.38

I. To establish that a crime has been committed, as in the case of a

fire , to determine whether it was accidental or caused by arson

II. To indicate how a crime was committed and when it was done ,

for example a murder or homicide done in self defense and the

time of death

III. To prove the guilt of the accused, though the case is seldom

decided by scientific evidence alone. The scientific evidence

must be consistent with the other evidence to make an overall

assessment.

Apparently there is few case law principals developed in the Sri Lankan legal system

regarding evaluation of expert evidence or the weight which may properly be attached to the

opinion of experts which remains to be considered by the tribunal to guarantee that evidence

in fact relied on by the forum is reliable perse.

(i) The primary responsibility of deciding the matters in dispute is that of the

Judge. In Gratian Perera case39

, Sinnathambi J. observed that it is the

function of the Court to decide on a matter of such nature with the

35 1959 CLW 93 36 (1964- 1965) 67 NLR 592 37 E R S R Coomaraswamy, THE LAW OF EVIDENCE ( With special reference to the Law of Sri Lanka)

Volume I : 2nd Edition , Stamford Lake, Pannipitiya : 1989 38 1974 Crim. Law Review at 276 39 Gratian Perera Vs. The Queen (1960) 61 NLR 522



308

assistance of an Expert, but it is not proper to act solely of the opinion of

the Expert and the decision being the judge‘s, he should not delegate his

function to the Expert, the opinion of the Expert is relevant, but decision

must nevertheless be the judge‘s.

This line of thought has been constantly upheld by Superior Courts of Sri

Lanka and in Jagathsena Vs. G D D Perera 40

Ranasinghe J. observed

following Lily Perera Vs. Chandani Perera 41

that approach of the Court

which should be for Expert Evidence is regulated by authorities and that

it is the duty of the Court to form its own opinion on the issue which to

sought adduce such evidence.

(ii) Since the ultimate decision is that of the Court the expert should give

reasons in support of his opinion, so that the Court may have the

opportunity of evaluating the reasons and assessing their validity. For

example in the case of Charles de Silva Vs. Ariyawathie de Silva 42

Abeyweera J. observed that Examiner of Questioned Documents EQD

should be able to, while testifying whether the signature in issue is placed

by the same person in both documents, to justify his conclusion giving

reasons that his signature may show a slight difference with factors such

as time , place and circumstances under which it is placed, along with

physical and mental states of the person placing it.

(iii) The opinion of an Expert is relevant but not conclusive. In pinhamy43

case it was observed that ―the medical witnesses‖ evidence alone is not

conclusive of the identity of the deceased. It can only be taken as an item

in the chain of evidence that was led to establish the deceased‘s identity‖.

It was held in Charles Perera Vs. Motha44

that the Experts opinion is only

relevant fact to be taken in to account in forming the opinion of the Court.

On the other hand the trial judge would not be justified in brushing aside

the expert‘s opinion lightly without adequate reason though it does not

mean that the trial judge is prevented from bringing an independent mind

to bear on the question. This view was upheld in Samarakoon Vs. Public

Trustee 45

by Weerasooriya J with who HNG Fernando J agreed.

(iv) Sri Lankan Courts have a propensity to accept the view of that expert

testimony be accepted only if it is supported by independence evidence. In

Soyza Vs. Shunmugam46

Hutchinson CJ observed that with his wide

experience he is inclined to treat the expert‘s opinion as nothing more than

40 1992 (I) SLR 371 41 1990 (I) SLR 246 42 1987 (I) SLR 261 43 The Queen Vs. Pinhamy (1956) 57 NLR 169 44 (1964) 65 NLR 294 45 (1964) 65 NLR 100 46 (1874- 1915) 10 NLR 355



309

slight corroboration of a conclusion arrived at independently and in any

event, never so strong as to turn the scale against a person charged with a

criminal act if the other evidence is not conclusive. Similarly in the case of

The King Vs. Perera47

where the isuue was identifying hand writing in a

chit alleged to written fraudulently, while no witness state that he was seen

to write or sign that chit, Jayawardena J. held that it is unsafe to convict

the Accused solely on EQD evidence. In Martines Vs. Doole48

it was held

that conviction could not be justified since the Accused found guilty solely

on the evidence of palm print which was placed at the window of the

house-broken room.

On the other hand the Court is reluctant to rely on expert evidence where

other evidence adduced is controversial regarding the genuiness of the

document as in Cader Saibo Vs Ahamed49

where the court held that it is

improper to come to a conclusion by merely comparing admitted

signatures and the document.

(v) Where an opportunity of cross examining the Expert is unavailable, the

weight attaching to his opinion is, of course, reduced. Hence in Rathinam

Vs. The Queen 50

expert evidence regarding a blast material was rejected

on the basis of hearsay evidence since the Ballistic Expert was not called

as witness before the High Court, instead produced his report submitted to

the Magistrate Court as a part of the brief.

Similarly in K C Perera and Three Others Vs. Republic Of Sri

Lanka 51

it was held that Where there is any matter that needs

clarification in the opinion of an expert witness, on a highly technical

science like Ballistics the proper course would have been to have the

expert as a witness and asked him to clarify any matters that were in doubt

or needed clarification.

The wise one fashioned speech with their thought, sifting it as grain is sifted through a sieve.

- Lord Buddha

47 (1917- 1937) 31 NLR 449 48(1917- 1937) 35 NLR 401 49 (1948- 1949) 50 NLR 303 50 (1972) 74 NLR 317 51 (1978) 79 NLR 244



310

Plea of Non Est Factum

IT IS NOT (MY) DEED

Thushara Rajasinghe

Judge of the High Court,

Republic of Fiji Islands,

“A word is dead, when it is said, Some say,

I say, it just begins to live

That day,

(Emily Dickinson, 1900)

Introduction

Not only the words, but also the actions of human beings do not die or perish with its

completion. A word is completed when it is said, and an action is completed when it is

performed, however, with the completion, it creates a new form of existence base on moral

responsibilities and obligations toward the word.

Every human action is a result of a contributory function of the members of human body.

This contributory function of human body does not limit to the physical organs but also

requires the functioning contribution of human mind, which actually designs the ownership

of the said action. As Emily Dickinson wrote every completed human actions and words

begin to live a new phase of life imposing consequential moral responsibilities and

obligations upon the author of such actions and words. These consequential moral

responsibilities and obligations have been recognised and codified into the legal systems of

the societies in order to prevent people from avoiding and ignoring these responsibilities and

obligations of their completed actions towards the world.



311

In order to excuse oneself from these consequential responsibilities and obligations of one‘s

action, it is required to satisfy that he does not actually perform that action. It has been

recognised that if a person was able to successful satisfy that his mind was not effectively

contributed to the completion of his physical action, he is permitted to excuse himself from

the consequential responsibilities and obligations of such an action. Accordingly a person is

allowed to claim that he is not liable for his signature or the execution of any documents on

the ground that his mind was not accompanied with his signature or his act of execution.

This claim of disown his own signature is known as the plea of non est factum, literary

known as ―It is not (my) deed.‖ The purpose of this paper is to discuss the main components

of the plea of non est factum.

What is non est factum

The plea of non est factum originally applies as a defence of a person, who sought to be held

liable but did not actually sign the document. However, this plea has been applied since the

16th

Century in certain instances where a person who actually signed a document and claims

that it is not his signature on the ground of lack of his consent. At the initial phase of the

evolution of this concept, it was applied for those who were unable to read due to blindness

or illiteracy, and therefore has to trust someone to tell them or direct them what they have

signed. Over the years, the application of the plea of non est factum has been extended to a

person of full age and understanding, who can read and write but due to no fault or

negligence of his own, forbears to read and understand the document before sign it, to

repudiate his signature under certain circumstances.

Byles J in Foster v Mackinnon52

articulately defined the plea non est factum, where his

lordship held that; “ it seems plain, on principle and on authority, that, if a blind man, or a

man who cannot read, or who for some reason ( not implying negligence) forbears to read,

has a written contract falsely read over to him, the read misreading to such a degree that

the written contract is of a nature altogether different from the contract pretended to be read

from the paper which the blind or illiterate man afterwards sign, then at least if there be no

negligence, the signature so obtained is of no force. And it is not invalid not merely on the

ground of fraud, where fraud exists, but on the ground that the mind of the signer did not

accompany the signature; in other words, that he never intended to sign, and therefore in

contemplation of law never did sign, the contract to which his name is appended”.

The judicial approach on the plea of non est factum is founded on the ground that such

exemption embodied in this defence should not unsettle the confidence of those who

habitually rely on the signatures, especially in commercial and trade activities. A more

liberal and free approach of the plea might adversely affect the confidence and the

credibility of commercial and trade activities as much of those activities are rely on signed

and executed documents.

52 (1869) LR 4 CP 704,



312

The plea of non est factum constitute two conflicting objectives. The first is the relief to a

signer whose consent is genuinely lacking. The second objective is the protection to

innocent third parties who have acted on an apparently regular and properly executed

document53

. In order to achieve these two conflicting objectives, the judicial approach on

the application of plea of non est factum requires a great amount of compromise and

flexibility.

Absence of the Consent

According to the definition given by Byles J in Foster the main determining element of the

plea of non est factum is the difference between what the signer believed to be signed and

what in fact he actually signed. The test of determining of the degree of difference between

what the signer believed and what he has actually signed has elaborated by Byles J in his

abovementioned passage, where his lordship held that “ the misreading to such a degree

that the written contract is of a nature altogether different from the contract pretended to be

read from the paper which the blind or illiterate man afterwards signs”. It was held that the

absence of the mind of the signer to the actual contents of the document renders the

document void. Having articulated the legal position of the issue of difference between the

actual contents of the document and what the signer intended to be signed, Byles J further

held in Foster that; “ in the present case, the defendant never intended to sign that contract,

or any such contract. He never intended to put his name to any instrument that then was or

thereafter might become negotiable. He was deceived not merely as to the legal effect, but as

to the actual contents of the instrument‖.

In Hunter v Walters54

, having discussed the principles adopted in Foster, held that the

determining factor is not the contents of the document, but the character of the document. If

a person executed a document upon the misrepresentation of its contains or facts, not the

actual nature or character of the document, he is barred from seeking assistance of the plea

of non est factum. Lord Hatherley LC in Hunter found that; “I apprehend that if a man

executes a solemn instrument by which he conveys an interest, and if he signs on the back a

receipt for money- a document which, as the Vice – Chancellor observes, could not be

mistaken – he cannot affect not to know what he was doing, and it is not enough for him

afterwards to say that he thought it was only a form. That merely amount to saying that a

misrepresentation was made to him, under which he executed a deed; still the deed may

have been exactly what he intended to execute, though he intended it to be used for a totally

different purpose. But this does not affect the deed. The fraud of the person who used the

deed for a different purpose does not make it less the deed of the person who executed it”.

53 Saunders ( Executrix of the estate of Rose Maud Gallie ( Deceased) v Anglia Building Society (1970) 3 All ER

961 54 (1871) 7 Ch App 75,



313

The principles enunciated in Hunter were further consolidated in an affirmative form in

Howatson v Webb55

. Chancery Division in Howaston has extensively discussed the legal

principles enunciated in Foster, Hunter and National Provincial Bank of England v

Jackson56

in respect of the distinction of what the signer actually signed and what he

believed to be signed. Having done such a comparative review of those leading authorities

on this issue, Warrington J in Howatson expounded that though a man might be misled as to

the nature of the deed, yet if he knew the character of the deed, he cannot succeed upon the

plea of non est factum. Warrington J held that; “he was told that they were deeds relating to

the property to which they did in fact relate. His mind was therefore applied to the question

of dealing with that property. The deeds did deal with that property. The misrepresentation

was as to the contents of the deed, and not as to the character and class of the deed. He

knew he was dealing with the class of deed with which in fact he was dealing, but did not

ascertain its contents. The deed contained a covenant to pay. Under those circumstances, I

cannot say that the deed is absolutely void”.

The abovementioned passage of Warrington J has narrowed the scope of the application of

plea of non est factum. It has specifically divided the character or class of the document with

the contents of the document. This distinction creates confusion as of the certainty of the

composition of actual character of the document against the actual contents of the document.

With the decision of Howaston, it was affirmed that the difference of actual contents of the

document and what the signer actually thought of it, was not considered as a determining

factor in the defence of non est factum.

In Gallie v Lee and Another57

the Civil Division of Court of Appeal has considered the

actual scope of the plea of non est factum in an inclusive approach. Lord Denning in Gallie

has deliberated the distinction between the character of the document and the contents of the

document in an expressive and eloquent manner. Lord Denning refused to accept this

distinction between the class and contents of the document as expounded in previous

authorities on three main grounds. The first ground is that this is not a sensible distinction. A

mistake as to contents may be just as fundamental as a mistake as to class and character.

Secondly, this is not really a distinction as a document takes its class and character from its

contents, wherefore, a mistake as to the one is often also a mistake as of the other. The third

ground is that the authorities mentioned above were actually decided not based on such a

distinction. Having refused to accept such a distinction, Lord Denning defined the plea of

non est factum as that; “whenever a man of full age and understanding, who can read and

write, signs a legal document which is put before him for signature – by which I mean a

document which, it is apparent on the face of it, is intended to have legal consequences-

then, if he does not take the trouble read it but signs it as it is, relying on the word of

another as to its character or contents or effect, he cannot be heard to say that it is not his

document”.

55 (1907) I Ch 537, 56 (1886) 33 Ch D 1, 57 (1969) 1 All ER 1062,



314

The position adopted by Lord Denning in Gallie in respect of the distinction between class

and the contents, was affirmatively upheld in the House of Lords in Saunders ( Executris

of the estate of Rose Maud Gallie ( deceased) v Anglia Building Society58

, where

Viscount Dilhorne held that ; „ the difference between what a documents is thought to be

may be in substance or in kind. It will not suffice if the signer thought that in some respect it

would have a different legal effect from what it has; nor will it suffice if in some respects it

departs from what he thought it would contain. The difference whether it be in kind or in

substance, must be such that the document signed is entirely- the word use by Byles J (

1869) LR 4 CP at 711) or fundamentally different from that which it was thought to be so

that it can be said that it was never the signer‟s intention to execute the document” .

Having concurred with Viscount Dilhorne and upholding Lord Denning‘s conclusion in the

Court of Appeal, Lord Wilberforce in his speech in Saunders found that the essential

element is the consent of the signer to the purported transaction in the document either it is

in substance or in kind. It appears that Lord Wilberforce and Viscount Dilhorne while

departing from the distinction of class of the document and the contents of the document,

specifically held that the essential component in the plea of non est factum is the lack of

consent by the signer to the purported transaction in the document whether it is in character

or contents.

The test of ascertaining of the intention of the signer is more subjective rather than

objective. Lord Pearson in his speech in Saunders outlined that the test is that what is

actually in his own mind rather than the intention which he manifests to others or the

intention that a reasonable man would infer from his words and actions. However, Lord

Pearson made no attempt to formulate a rule as such. His lordship expressed in his

observation that in some instances objective test would be more appropriate than the

subjective approach.

Negligence by the Signer

The second component that constitutes the plea of non-est factum is the absence of

negligence by the signer. It appears that a person could not be able to claim the defence of

non est factum if his signing of the document was due to his own negligence. Beside the

issue of negligence, the court is further required to consider that whether the person who

negligently signed a document is estopped from claiming the plea of non-est factum against

an innocent third party.

Sir Mellish L.J. in Hunter raised his concern of estoppel between the signer and the third

person, where he stated that; “ in my opinion, it is still a doubtful question at law, on which I

do not wish to give any decisive opinion, whether, if there be a false representation

respecting the contents of a deed, a person who is an educated person, and who might, by

very simple means, have satisfied himself as to what the contents of the deed really were,

58 (1970) 3 All ER 961,



315

may not, by executing it negligently be estopped as between himself and a person who

innocently acts upon the faith of the deed being valid, and who accepts as estate under it”.

The degree of negligence had been considered as carelessness or mere negligence that has

not arisen out of any specific duty of care. However, this simple approach was elevated to a

higher degree of negligence in Carlisle and Cumberland Banking Company v Bragg59

,

where Williams LJ while differentiating the consequences of bills of exchange and other

forms of deed, found that; “ I do not know whether the jury understood that there could be

no material negligence unless there was a duty on the defendant towards the plaintiff”. The

dictum of Williams LJ conditioned that the negligence must be derives from a duty of care

to the third person who ultimately relies on the document.

Buckley LJ in Bragg further extended the issue of negligence toward another dimension,

where he found that the negligence has nothing to do with the question of whether the deed

is in fact the deed of the defendant. Negligence has only to do with the question of estoppel.

Buckley LJ‘s observation creates a misperception that the issue of negligence derives out of

a duty of care, creates an estoppel, which is required to be determined separately and

irrespective of the outcome of plea of non est factum.

Lord Wilberforce in Saunders was critical on the principles laid down in Bragg, where he

refused to accept it. His lordship found that the principles enunciated in Bragg could

confuses the degree of careless conduct which could disentitle a man from denying the

effect of his signature. Such legal negligence derives out of a duty of care comprises with

different form of standard and scope than of mere carelessness. Having dismissed the

principles expounded in Bragg, Lord Wilberforce held that; “ in my opinion, the correct

rule, and that which in fact prevailed until Bragg‟s case is that, leaving aside negotiable

instruments to which special rules may apply, a person who signs a document, and parts

with it so that it may come into other hands, has a responsibility, that of the normal man of

prudence, to take care what he signs, which, if neglected, prevent him from denying his

liability under the document according to its tenor. I would add that the onus of proof in this

matter rests on him, ie to prove that he acted carefully and not on the third party to prove

the contrary.

Lord Pearson in his speech, while refusing to the accept the principles outlined in Bragg,

discussed the issue of estoppel by negligence. His lordship affirmatively held that the phrase

estoppel by negligence gives a misleading perception and not applicable in the plea of non

est factum. Lord Pearson pointed out that in the normal circumstance; the estoppel arises

from a representation and not by words or conduct, thus, the phrase estoppel by negligence

is inaccurate. His Lordship further elaborated that an estoppel must be pleaded and proved

by the party relying on it. In relation to the plea of non est factum, this could put the burden

of prove on the wrong party.

59 (1911) 1 KB 489,



316

In conclusion, it appears that in Saunders, having discussed the previous position of law

which was more confusing than clarity, has rightly defined the plea of non est factum with

its essential components in an inclusive manner. The two main components that is required

to be established in order to seek the assistance of plea of non est factum are that the

document signed is fundamentally difference from what the signer actually thought of it,

either its class or the contents and that he had signed such document not due to his own

negligence.

―Justice implies knowledge of the right and proper place for a thing or a being to be; of right

as against wrong; of the mean and limit; of spiritual gain as against loss; of truth as against

falsehood.‖

― Syed Muhammad Naquib al-Attas, Islam The Concept of Religion and the Foundation of

Ethics And Morality

http://www.goodreads.com/author/show/684492.Syed_Muhammad_Naquib_al_Attas





317

Sovereignty and Belief

Thoughts on H.L.A. Hart, the Rule of Recognition, and the Crisis in Iraq

Dr. Charles J. Reid, Jr.

Professor of Law

University of St. Thomas, Minnesota

I. The Problem Stated

The on-going crisis in Iraq is many things. But at its heart, it is a struggle to define the

Iraqi nation. Sunnis, Shiites, Kurds, Islamic extremists and committed secularists are all

contesting over basic questions of sovereignty - of what will it consist, who can legitimately

exercise it, and how shall it be exercised. But for sovereignty to work, for its commands

finally to be efficacious, the people subject to the ruling authority, or at least a sufficiently

large number of them, must believe in the sovereign. They must, in other words, look upon

the sovereign and judge its work to be good. To appreciate this connection between

sovereignty and belief, we might consider the work of the great English legal philosopher,

H.L.A. Hart (1907-1992). Hart studied the nature of sovereignty and understood it to be the

cornerstone of his concept of law.

There are two types of rules that comprised the law of modern states, he asserted;

Primary rules, which establish duties and affirm obligations1 and secondary rules, which

prescribe procedures and channel the ways in which we comply with the law.2 An example

in American law might be the requirement to obtain a search warrant under the Fourth

Amendment to the Constitution. The Fourth Amendment creates the primary rule, namely,

the obligation for police officers to obtain a warrant prior to conducting a search; while the

rules that create and govern the procedures by which the warrant is obtained (the

requirement of probable cause, the presentation of evidence to the magistrate, the taking of

affidavits or other forms of proof) constitute secondary rules.3

1 H.L.A. Hart, The Concept of Law, 3d. ed. (Oxford, UK: Oxford University Press, 2012), pp. 91-94. 2 Id., pp. 79-99. 3 For a thoughtful discussion of the Fourth Amendment and theories of legal positivism, including Hart‘s, see

Morgan Cloud, Pragmatism, Positivism, and Principles in Fourth Amendment Theory, UCLA Law Review (1993),

pp. 199, 283-286.



318

Hart well understood the complexity of modern constitutional states and

knew that they all had in common a foundation which he termed the Rule of Recognition.4

The Rule of Recognition, which might best be called the primordial secondary rule,

empowers the entire system and all who operate within it.5 Again adverting to American

law, the Rule of Recognition, ultimately, is the United States Constitution.6 It is, after all,

from the Constitution that states derive their power vis a vis the federal government, it is to

the Constitution that the powers and duties of all governmental officials are traced back.

And it is from the Constitution that citizens derive their rights.7

How does the Rule of Recognition come into being? What is the social

glue that sustains it, that keeps the legal order from flying apart? Here, Hart becomes

vague.8 He explains that the Rule of Recognition can never be derived from other rules.

Otherwise, those other rules would become the Rule of Recognition.9

Finally, he says, the Rule must rest upon a strong notion of acceptance: as

he puts it, the Rule of Recognition ―must be generally obeyed . . . [and] its rules of change

and adjudication must be effectively accepted as common public standards of official

behavior by its officials.10

And whence are obedience and acceptance derived? Obedience, he argues,

finally rests on social rules. Some social rules, he acknowledges, constitute mere etiquette,

or social expectations. But there are some social rules the violation of which arouse

sufficient concern that transgressors might be justly and publicly criticized, or in serious

cases, sanctioned by public authority.11

We might shun someone with bad table manners, we

might not invite the boorish guest to return to our home, but the true transgressor will face

4 Hart, supra, pp. 100-110. 5 Stephen Perry, Hart on Social Rules and the Foundations of Law: Liberating the Internal Point of View, Fordham

Law Review 75 (2006), pp. 1171, 1183-1184. 6 Here I take issue with Scott J. Shapiro, who asserts that there is little about the United States Constitution which

resembles a Rule of Recognition since there is nothing in the text that expressly declares itself as such. See Scott J.

Shapiro, Legality (Cambridge, MA: Harvard University Press, 2011), pp. 84-85. This misses Hart‘s point about

acceptance. The Rule of Recognition depends upon an unspoken consensus that a particular Rule or collection of

Rules should serve as the primordial foundation of all powers. There is much less about the British Constitution that

declares thou art hereby empowered, yet Hart would not deny the British Constitution Rule of Recognition status. 7 On the role of constitutions in the modern state generally, see Kaarlo Tuori, Ratio and Voluntas: The Tension

Between Reason and Will in Law (Burlington, VT: Ashgate, 2013), p. 207 ( The constitution contains the central

meta-norms of positive law. And again: The constitution [therefore] defines the rule of recognition of the legal

order ). Id. 8 Hart himself persistently abstains from giving any serious example of the complete rule of recognition in a legal

system. Reidar Edvinsson, The Quest For the Description of Law (Berlin: Springer Verlag, 2009), p. 16. 9 As Hart states it, the Rule of Recognition is the rule which, in the last resort, is used to identify the law. Hart,

supra, p. 111. 10 Hart, supra, p. 116. Cf., Uta Bindreiter, Why Grundnorm? A Treatise on the Implications of Kelsen‘s Doctrine

(The Hague: Kluwer Law International, 2002), p. 70 (further developing Hart‘s concept of acceptance and contrasting it with Hans Kelsen‘s Grundnorm). 11 Hart, supra, pp. 55-56.



319

more serious consequences (civil litigation, fines, even criminal sentencing in the most

extreme cases).12

It is acceptance, furthermore, that distinguishes the law which actors in a

particular legal system feel obliged to obey and apply from other, ―external‖ legal orders to

which they have no allegiance.13

To make the point dramatically, it is acceptance of the

binding character of its precepts and principles that distinguishes the law American lawyers

and judges use and apply from a purely antiquarian collection of laws, like the Code of

Hammurabi, or that of the Ripuarian Franks.

The authorities empowered with executing the law or with enforcing

compliance with its demands, must at some level internalize the Rule of Recognition; they

must acknowledge that it binds and confines and restrains their action within prescribed

limits.14

The Rule of Recognition becomes the Rule of Recognition, therefore, because

individuals who function within it feel they are bound to apply it and comply with it,

whether out of an internalized sense of rightness, or out of a pragmatic fear of punishment.

And where the Rule of Recognition fails to achieve acceptance, the system fails.15

Hart, however, did not push his analysis beyond the question of

acceptance and social rules. He acknowledged that morality has historically played a large

role in creating and sustaining legal orders, but he found no necessary connection between

any particular belief system and the rule of law.16

My intention in this paper is to attend to this seeming gap in Hart‘s

thought, not in order to refute Hart but to suggest a way of deepening this analysis. I contend

that the Rule of Recognition, at least a Rule of Recognition capable of sustaining stable,

enduring governments, qualifies as the Rule of Recognition because a sufficiently large

enough segment of society believes in it, trusts in it, sees it as coherent and consistent with

society‘s higher purposes and self-understanding.17

I propose to use the on-going crisis in

12Id. pp. 57-58. Cf., Kenneth Einar Himma, A Comprehensive Hartian Theory of Legal Obligations: Social

Pressure, Coercive Enforcement, and the Legal Obligations of Citizens, in Wil Waluchow and Stefan Sciaraffa,

eds., Philosophical Foundations of the Nature of Law (Oxford, UK: Oxford University Press, 2013), pp. 152, 169

(explaining that acceptance includes a convergence of consent and other factors, such as belief ). Id. 13 For a useful summary of this idea see James Paul Maniscalco, The New Positivism: An Analysis of the Role of

Morality in Jurisprudence, Southern California Law Review 68 (1995), 989, 1000-1010. 14 Hart, pp. 102-103. 15 Hart, p. 103 ( [W]e must distinguish a general disregard of the rules of the system. This may be so complete in

character and so protracted that we should say, in the case of a new system, that it had never established itself as the

legal system of a given group, or, in the case of a once-established system, that it had ceased to be the legal system

of the group ). Id. To be sure, Hart concedes that despotisms might also have their rules of recognition, and that

these rules might consist in dread, terror, and fear at the bottom and cruelty at the top. But we know from history

that these sovereignties are unstable and that the worst of the great dictatorships collapsed soon enough from the

weight of their own barbarism. Cf., Lynne Henderson, Authoritarianism and the Rule of Law Indiana Law Journal

66 (1991), pp. 379, 400-402 (further exploring the rule of law under authoritarian governance). 16 Hart, pp. 200-201. 17 I am here developing criticism first suggested by Neil MacCormick, Natural Law and the Separation of Law and

Morals, in Robert P. George, ed., Natural Law Theory: Contemporary Essays (Oxford, UK: Oxford University



320

Iraq as a means of explaining what happens when these jurisprudential principles are

ignored by relevant decision-makers.

II. Belief Systems and Acceptance

My argument, therefore, is that the Rule of Recognition, to qualify as

such, must be believed in as right. Notice that I am not saying that the system must conform

to the standards of some larger, objective theory of morality. Nor am I saying that everyone

need believe in the rightness of the system. Indeed, the system itself may prove terribly

oppressive to segments of the society.18

However, without belief in its rightness, finally, the

system loses its grip on the popular imagination, and people come to regard it with disbelief,

followed by disrespect, and disobedience

Consider the ways in which societies have reinforced their Rules of

Recognition and there will be found at their core a commitment to a shared set of beliefs and

values. I am thinking first of the Roman state religion of the Antonine period. This period in

Roman history, celebrated by Edward Gibbon as the apex of human achievement until his

own day, corresponded to most of the second century, CE.19

The Empire stretched from the Tigris and Euphrates Rivers in the East to

the lower Nile in the South, north and west to the Rhine, and on to the Scottish frontier.20

It

was a large and disparate collection of distinct people, languages,21

and local religious

beliefs.22

Press, 1992), pp. 105, 113-114, who argues that laws, like other social institutions, are fully intelligible only by

reference to their ends or values and that the Hartian positivist must concede that a conception of the good usually

informs their acceptance of the legal order‘s validity. Cf., Jules Coleman, Authority and Reason, in Robert P.

George, ed., The Autonomy of Law: Essays on Legal Positivism (New York: Oxford University Press, 1996), pp.

287, 287-288 (proposing that moral principles might be seen as part of a legal order‘s rule of recognition). 18 In this I concur with Hart, who asserts: These painful facts of human history [slavery, totalitarianism] are enough

to show that, though a society to be viable must offer some of its members a system of mutual forbearances, it need

not, unfortunately, offer them to all. Id., p. 201. 19 Edward Gibbon, The Works of Edward Gibbon: The History of the Decline and Fall of the Roman Empire, vol. I

(New York: Fred DeFau, 1906), pp. 35-105. Cf., Aldo Schiavone, The End of the Past: Ancient Rome and the

Modern West (Cambridge, MA: Harvard University Press, 2000), p. 18 ( for Gibbon, the age of the Antonines

remained the culmination of the Roman Empire ); and J.G.A. Pocock, Barbarism and Religion, vol. III, The First

Decline and Fall (Cambridge, UK: Cambridge University Press, 2003), pp. 7-16 ( The Problem of the Antonine

Moment ). 20 Patricia Southern, The Roman Empire From Severus to Constantine (London: Routledge, 2001), p. 14 ( The

Empire reached its greatest extent in the first decades of the second century AD, in the reign of Trajan ). Id. 21 Peter Garnsey and Richard Saller, The Roman Empire: Economy, Society, and Culture, 2d ed. (Berkeley, CA:

University of California Press, 2014), p. 225 ( Hundreds of local languages were spoken across the Empire ). Id. 22 A sense of the religious diversity that prevailed can be obtained from William Van Andringa, Religions and the

Integration of Cities in the Empire in the Second Century AD: The Creation of a Common Religious Language, in

Jörg Rüpke, ed., A Companion to Roman Religion (Malden, MA: Blackwell, 2011), pp. 83, 83-84.



321

There were always strong centrifugal forces working against imperial

power, and the Emperors attempted to confront these forces in various ways. They promoted

the construction of good roads, of course, and aqueducts, and other public works as means

of promoting a high level of general prosperity.23

And the Emperors gave local groups wide

latitude to practice their own religions. At the same time, however, they attempted to impose

a mild, unifying feature: People were required to make periodic sacrifice to the imperial

genius and take vows of loyalty.24

Jews were exempt.25

When Christians sought to exempt themselves, they

encountered episodic difficulties with the authorities. Why? Because where Christians

insisted upon undivided loyalty to their God, 26

the Roman authorities saw a threat to the

belief and value system that underpinned their Rule of Recognition.27

Gibbon blamed Christianity, and the political other-worldliness it

promoted, for the decline of Roman authority in the West. We know now that this thesis is

untenable. Still, shared religious practice, and the belief system it embodied and promoted,

no doubt helped to inculcate the loyalty the Roman Rule of Recognition required for success

and contributed to the long-term endurance of the Roman state.28

Now, let‘s move forward in time to the British Constitution as it emerged

from the Glorious Revolution of 1689. The British certainly viewed their state religion (the

Anglican Church) as an integral feature of their constitutional order.29

After all, the Glorious

Revolution was concerned, at its heart, with the expulsion of King James II because of the

barely disguised secret that he had become Catholic.30

23 For a highly imaginative reconstruction of this world, consult generally Elizabeth Speller, Following Hadrian: A

Second-Century Journey Through the Roman Empire (Oxford, UK: Oxford University Press, 2003). 24 Peter Herz, Emperors: Caring For the Empire and Their Successors, in R pke, Companion to Roman Religion,

supra, pp. 304, 312. Cf., George Heyman, The Power of Sacrifice: Roman and Christian Discourse in Conflict

(Washington, DC: Catholic University of America Press, 2007), p. 29 (Cicero and generations of Roman thinkers

thereafter believed that the success of the state and the success of religion were intimately connected ). Id. 25 Jack N. Lighthouse, Roman Diaspora Judaism, in R pke, Companion To Roman Religion, supra, pp. 345, 346. 27 I have in mind in particular the correspondence between Pliny the Younger and the Emperor Trajan on Pliny‘s

arrest and execution of groups of Christians. See Lawrence J. Johnson, Worship in the Early Church: An

Anthology of Historical Sources, vol. I (Collegeville, MN: Liturgical Press, 2009) pp. 83-85 (translating these

documents). 28 None of this suggests that the Roman system was moral in our sense of the word. It practiced widespread

slavery, it engaged in a form of infanticide (the exposure of infants), and it gloried in the slaughter of the

gladiatorial games. I mean only to suggest that widely shared belief in the rightness of the political order

contributes to the stability of that system‘s law. It is significant, furthermore, that Christians, when they gained control of the levers of governance over the course of the fourth century imposed many of the details of state

religion, now substituting Christian worship and Christian practice. 29 William Gibson, The Church of England, 1688-1832: Unity and Accord (London: Routledge, 2001), p. 28,

describes the Glorious Revolution as an Anglican Revolution. Cf., Peter Hinchliffe, Church-State Relations, in

Stephen Sykes, John Booty, and Jonathan Knight, eds., The Study of Anglicanism (London: SPCK, 1998), pp. 392,

392 ( The Church of England is often said to be part of the British Constitution ). Id. 30 Robert Royal, The God That Did Not Fail: How Religion Built and Sustains the West (New York: Encounter

Books, 2010), pp. 184-185.



322

Still, the Anglican Church did not lie at the heart of British

constitutionalism in the way that another feature did, and that was the British devotion to

history as a normative enterprise.31

This was, after all, the age of the Ancient Constitution,

made famous by J.G.A. Pocock.32

In the course of the seventeenth century, certain

documents were seized upon and imparted with new meaning. Magna Carta was such a text.

It was an important grant of liberties in the medieval period, 33

to be sure, but it did not

become the foundational Charter of English Liberties, at least not until much later.34

Once again, we see at the core of sovereignty the component of belief. The

Ancient Constitution was not merely accepted. It was believed. It was internalized and made

a part of the legal order. Affirming the Ancient Constitution became an act of political self-

definition - a way in which the British people marked off what it meant to be British.35

And

so it became part of that great unwritten tradition – the present British Constitution.36

If we move across the Atlantic, to the United States, we find that

acceptance of the American Rule of Recognition is not grounded in history, nor even in a

state religion, but in a set of propositions.37

The Declaration of Independence was the first

articulation of these founding principles.38

All men were created equal, the Declaration

31 The foundations of this manner of thinking about history and normativity are traced in Harold J. Berman, The

Origins of Historical Jurisprudence: Coke, Selden, Hale, Yale Law Journal 103 (1994), pp. 1651-1738. 34 Colin F. Wilder, The Importance of Beginning Over and Over: The Idea of Primitive Germanic Law, in Maarten

Delbeke and Minou Schraven, eds., Foundation, Dedication, and Consecration in Early Modern Europe (Leiden:

E.J. Brill, 2012), pp. 363, 371-372; and Andy Wood, The Memory of the People: Custom and Popular Senses of the

Past in Early Modern England (Cambridge, UK: Cambridge University Press, 2013), p. 90. 35 For recent examples of scholarship making this point, consult, Janelle Greenberg, ‘St. Edward‘s Ghost:‘ The

Cult of St. Edward and His Laws in English History, in Stefan Jurasinski, Lisi Oliver, and Andrew Rabin, eds.,

English Law Before Magna Carta (Leiden: E.J. Brill, 2010) ( the ancient constitution was the result of . . . deep-

seated beliefs about the past ); Alexander Somek, The Cosmopolitan Constitution (Oxford, UK: Oxford University

Press, 2014), pp. 47-51; and David Craig, Burke and the Constitution, in David Dwan and Christopher J. Insole,

eds., The Cambridge Companion to Edmund Burke (Cambridge, UK: Cambridge University Press, 2012), pp. 104,

106 (discussing Burke‘s commitment to the ancient constitution). 36 See, for example, Peter James Stanlis, Edmund Burke and the Natural Law (Ann Arbor: University of Michigan

Press, 1958), p. 98 (harmony of British constitution, reverence for the past, and a dynamic approach to the future). 37 I must emphasize that I am speaking here specifically about the acceptance of the Rule of Recognition. My larger

claim, after all, is that acceptance depends upon an underlying set of values, principles, and beliefs, and that in the

American constitutional order these values and principles are derived from founding documents like the Declaration

of Independence. It is necessary to be clear on this point, since there is considerable debate over whether a Rule of

Recognition might ever consist of principles which are in their nature elastic. See, Robert J. Summers, Essays in

Legal Philosophy (Berkeley: University of California Press, 1968), pp. 58-59 (rejecting the possibility of the Rule

of Recognition ever consisting of flexible principles); Anthony J. Sebok, Legal Positivism in American

Jurisprudence (Cambridge, UK: Cambridge University Press, pp. 273-277 (reviewing the state of the debate and

offering a qualified endorsement of Summers‘ position); and Philip Soper, Legal Theory and the Obligation of a

Judge: The Hart/Dworkin Dispute, in Marshall Cohen, ed., Ronald Dworkin and Contemporary Jurisprudence

(Totowa, NJ: Rowman and Littlefield, 1984), pp. 3-27 (investigating the relationship of a strict rule of recognition

and flexible understandings of individual rights and liberties). 38 Scott Douglas Gerber, To Secure These Rights: The Declaration of Independence and Constitutional

Interpretation (New York: New York University Press, 1995), p. 15 (connecting the Declaration of Independence

with the statement of principles that informed the drafting of the United States Constitution).



323

announced to the world, 39

and were endowed by their Creator with certain inalienable

rights, including life, liberty, and the pursuit of happiness.

The Constitution and the Bill of Rights became their fuller, more robust

articulation.40

Freedom of speech, freedom of religion, a commitment to limited and

representative government - these are among the foundational principles given incomplete

voice in the Declaration and found more fully expressed in the American Constitution.41

A nation established and governed by a set of propositions was a

fortuitously appropriate Rule of Recognition for a land that came to be peopled by

immigrants. By immigrating to the United States, one shed one‘s old loyalties, of course, but

the nation that received these new arrivals was not closed to full participation by ancestral

ties of blood and soil.42

No, the United States was a propositional nation, and newcomers

pledged to uphold and defend these ideals on the same footing and with the same rights and

responsibilities as those whose families had lived in America for generations.43

The American Rule of Recognition has proven to be remarkably elastic

and enduring, doubtlessly because of its propositional character. The propositions embedded

in the Declaration of Independence offered a basis upon which to criticize repugnant social

institutions. Frederick Douglass set the tone with his famous oration of 1852, ―What Is the

Slave to the Fourth of July?‖44

Elizabeth Cady Stanton and the Seneca Falls Declaration of

1848 set a similar tone where women‘s rights were concerned.45

And, more recently, these

propositions have formed the backdrop against which all forms of discrimination on the

basis of immutable characteristics - racial, ethnic, even gender and sexual - have come to be

criticized and de-legitimized.46

40 Albert Rosenthal and Louis Henkin make the important point that the Constitution, at least as ratified in 1789,

omitted the principle of equality so forcefully stated by the Declaration of Independence thirteen years earlier. See

Albert Rosenthal and Louis Henkin, Constitutionalism and Rights: The Influence of the United States Constitution

(New York: Columbia University Press, 1990), p. 3. It required the Fourteenth Amendment, ratified eighty years

later, to give full expression to the principle of equality. On this last point, the scholarship is prolific. See, for

instance, Rebecca E. Zietlow, Enforcing Equality: Congress, the Constitution, and the Protection of Individual

Rights (New York: New York University Press, 2006), p. 165. 41 See, for instance, Timothy E. Sandefur, The Conscience of the Constitution: The Declaration of Independence

and the Right to Liberty (Washington, DC: The Cato Institute, 2014), p. 2 (arguing that the Declaration of

Independence endorsed as the primary constitutional interpretive principle the ideal of liberty ). 43 Alan Wolfe, Return to Greatness: How America Lost Its Sense of Purpose and What It Needs to Do to Recover It

(Princeton, NJ: Princeton University Press, 2005), p. 154 ( The other way of understanding what is at stake when

immigrants arrive is creedal; from this point of view, America is not defined by any particular culture but instead by

the beliefs to which all Americans are expected to subscribe ). Id. 44 For an analysis of this watershed speech, see James A. Colaico, Frederick Douglass and the Fourth of July (New

York: Palgrave Macmillan, 2006), especially pp. 7-107. 45 Charles J. Reid, Jr., The Journey to Seneca Falls: Mary Wollstonecraft, Elizabeth Cady Stanton, and the Legal

Emancipation of Women, University of St. Thomas Law Journal 10 (2013), pp. 1123, 1171-1184. 46 See, for instance, Jonathan Rauch, Gay Marriage: Why It Is Good For Gays, Good For Straights, and Good For

America (New York: Henry Holt, 2004), p. 95 (citing the equality of language of the Declaration of Independence

in favor of same-sex marriage).



324

I have schematically suggested ways in which the Rules of Recognition of

three legal orders, separated greatly by time and geography depended, each in its own way,

on belief. The Romans intuited that a widely dispersed imperial power needed some

ceremony that might concentrate the minds of distant provincials on the centrality of Rome.

The British looked inward, to the history of the British people, and found there a ground for

believing in the rightness of the British Constitution. And the United States, a new nation,

founded on ideas and not on ties of conquest or kinship, became the most obvious of these

three societies in connecting belief with acceptance of the Rule of Recognition. The United

States, after all, is above all else, a propositional or ―creedal‖ nation, holding most dear

fidelity to grand constitutional principles.

III. Iraq

So far I have said a good deal about the Rule of Recognition; what it

means to accept it and the role belief plays in that process; and how belief interacted with

sovereignty to create stable Rules of Recognition in three vastly different societies - the

Roman Empire; Britain since the seventeenth century; and the United States. I have,

however, said nothing so far about Iraq. So let us see now, what I have said squares up

against the experience of that nation.

We should begin with the Ottoman period, in the latter eighteenth and

nineteenth centuries. The territory that would later become Iraq was divided into three

loosely-governed provinces - Mosul in the North, Baghdad in the center, and Basra in the

South.47

The writ of Ottoman authority ran weakly there.48

These were decentralized

provinces, where much power resided in local, tribal, and nomadic groupings.49

Militarily,

the region amounted to an exposed frontier, under frequent assault from the Persian Empire

to the East.50

As in present-day Iraq, the Kurdish population tended to live in the northern

territories; the Sunnis in the center and West; and Shiites in Basra and points South.51

By the

middle eighteenth century, the British had established a trading presence in Baghdad that

would endure for the better part of two centuries.52

47 Charles Tripp, A History of Iraq (Cambridge, UK: Cambridge University Press, 2000), pp. 8-15. 48 See, for instance, Dina Rizk Khoury, State and Provincial Society in the Ottoman Empire: Mosul, 1540-1834

(Cambridge, UK: Cambridge University Press, 1997), p. 9 (describing a system of weak administrative controls

even though Mosul grew culturally more Ottomanized over the course of the eighteenth century). 49 Thabit A.J. Abdullah, Merchants, Mamluks, and Murder: The Political Economy of Trade in Eighteenth-Century

Basra (Albany, NY: State University of New York Press, 2001), p. 99 ( If there is one word that best describes the

political situation in Iraq in the eighteenth century, it certainly must be ‗instability.‘ ) Id. 50 Bruce Masters, The Arabs of the Ottoman Empire, 1516-1918: A Social and Cultural History (Cambridge, UK:

Cambridge University Press, 2013), p. 32. 51 Ebubekir Ceylan, Ottoman Origins of Modern Iraq: Political Reform, Modernization, and Development in the

Nineteenth-Century Middle East (New York: Palgrave Macmillan, 2011), p. 35 (on the geographic distribution of

Shiites, Sunnis, and Kurds). 52 Lyndon Moore, Iraq: Islamic Period, in Joel Mokyr, ed., The Oxford Encyclopedia of Economic History

(Oxford, UK: Oxford University Press, 2003), pp. 151, 152.



325

The Ottomans over the course of the nineteenth century53

attempted to exert more

centralized control over these frontier lands.54

Ottoman plans, however, were frustrated with

the outbreak of World War I.55

The so-called War to End All Wars brought mostly horror

and tragedy to the land that became Iraq. German, Russian, Turkish, and British armies vied

for control and all of them suffered grievous losses.56

Still, by 1916, the Triple Entente resolved that victory, if it should come,

must see a dismemberment of the Ottoman Empire.57

In May of that year, the British and the

French, with the quiet assent of their Russian allies, concluded the Sykes-Picot Agreement,

by which the two nations parceled out for themselves zones of control in what they hoped

would be a remade Arab Middle East.58

The French claimed Lebanon and Syria, while the

British extended their interests in the Persian Gulf and asserted control over Iraq and

modern-day Jordan.59

The twentieth-century history of Iraq can be briefly summarized as

featuring the continued efforts, now proven to be fruitless, to hold together a territory that

lacked the cohesive belief-structure required for nationhood. First the British, then a feckless

monarchy, and finally the Baathist regime led by the bloody-minded Saddam Hussein each

in its turn attempted and failed to hold the country together.60

53 The nineteenth-century efforts took the form of enforced nomadic settlements, efforts which encountered

sometimes fierce local resistance. See Yitzhak Nakash, The Shiis of Iraq (Princeton, NJ: Princeton University

Press, 1994), pp. 32-34. 54 The career diplomat and Grand Vizier Mustafa Reşid Pasha were primarily responsible for what became known

as the Tanzimat Reforms, which borrowed heavily and deliberately from Western models. Efforts were made to

enhance tax collection, impose military conscription, dispense impartial justice, and provide governmental assistance to the neediest. See Linda T. Darling, A History of Social Justice and Political Power in the Middle East:

The Circles of Justice From Mesopotamia to Globalization (New York: Routledge, 2013), pp. 162-163. By the

close of the nineteenth century, for a variety of reasons, the Tanzimat reforms lost their momentum. See Gökhan

Çetinsaya, Ottoman Administration of Iraq, 1890-1908 (New York: Routledge, 2006), pp. 10-13. 55 The Ottomans initially miscalculated the military situation and in fact mobilized their Iraqi forces for combat on

the Russian front. See Youssef H. Aboul-Enein, Iraq in Turmoil: Historical Perspectives of Dr. Ali Al-Wardi

(Annapolis, MD: Naval Institute Press, 2012), p. 61; and Tareq Y. Ismael, The Rise and Fall of the Communist

Party of Iraq (Cambridge, UK: Cambridge University Press, 2008), p. 5. 56 On British-Ottoman fighting in Iraq, see Lawrence Sondhaus, World War I: The Global Revolution (Cambridge,

UK: Cambridge University Press, 2011), pp. 368-373; on the Ottoman defeat of the Russian incursion into

Mesopotamia, see Tim J. Watts, Kh naq n (3 June, 1916), in Spencer C. Tucker, ed., The Encyclopedia of World

War I (Santa Barbara, CA: ABC-CLIO, 2005), p. 637. 57 Michael A. Reynolds, Shattering Empires: The Clash and Collapse of the Ottoman and Russian Empires, 1914-

1918 (Cambridge, UK: Cambridge University Press, 2011), pp. 140-141. 58 A.S. Kanya-Forstner, The War, Imperialism, and Decolonization, in J.M. Winter, Geoffrey Parker, and Mary R.

Habeck, eds., The Great War and the Twentieth Century (New Haven, CT: Yale University Press, 2000), pp. 231,

237-238. 59 J.E. Peterson, Britain and the Gulf, in Lawrence G. Potter, ed., The Persian Gulf in History (New York: Palgrave

Macmillan, 2009), pp. 277, 288. 60 As one commentator put it, the problem faced by successive Iraqi regimes has been the multiplicity of Iraqi

nationalisms and the clashing visions of Iraq. Fanar Haddad, Sectarianism in Iraq: Antagonistic Visions of Unity

(Oxford, UK: Oxford University Press, 2011), p. 34.



326

But the twentieth-century history of Iraq made plain that sectarian and

ethnic interests were always first in the hearts of ordinary Iraqis.61

Shiites continuously

strengthened their self-identity, a process that was only fueled by their oppression at the

hands of Sunni ruling elites.62

The Kurds, who have been the victims of persecution dating

back hundreds of years,63

were also targeted for ethnic cleansing by Saddam Hussein and

were made more cohesive as a result.64

The Sunnis, who for much of the twentieth century

governed Iraq, experienced reprisals in the decade since the American invasion and now

also have a well-developed sense of grievance that is partially expressed in the on-going

violent insurrection against the Shi‘ite dominated central government in Baghdad).65

(In this

toxic mix, smaller minorities, such as Christians, barely have room to breathe).66

This returns us to the question of sovereignty. Sovereignty requires

acceptance of a commonly-agreed upon Rule of Recognition. And that Rule of Recognition,

in order to be effective, must be seen to be good. It must reflect the values and interests of

the nation and be seen to do so.

And this is the great tragedy of the American invasion of Iraq. President

George W. Bush and his closest advisors, at the time they launched the War in 2003,

imagined that they could easily transpose the American style democracy they were familiar

with to Iraq.67

They failed to appreciate that acceptance of sovereign authority arises not

61 Liam Anderson and Gareth Stansfield, The Future of Iraq: Dictatorship, Democracy, or Division? (New York:

Palgrave Macmillan, 2004), p. 6 (observing concerning the twentieth century that Iraq never succeeded in becoming

. . . a nation thanks to often violent ethnic, tribal, economic, and sectarian divisions ). Id. 62 See, for example, Yusri Hazran, The Rise of Politicized Shi‘ite Religiosity and the Territorial State in Iraq and

Lebanon, Middle East Journal 64 (2010), pp. 521, 522-523; and Vali Nasr, When the Shiites Rise, Foreign Affairs

85, no. 4 (July/August 2006), pp. 58-71 and 73-74 (making the case that the troubles in Iraq have given rise to a

pan-Shiite consciousness that crosses borders); and Vali Nasr, The Shia Revival: How Conflicts Within Islam Will

Shape the Future (New York: Norton, 2006) pp. 185-210 (chapter entitled Iraq: The First Shia State ). 63 Mahir A. Aziz, The Kurds of Iraq: Nationalism and Identity in Iraqi Kurdistan (New York: Palgrave Macmillan,

2011), p. 10 ( The Kurds claim to be the largest nation without a state ). 64 Ofra Bengio, Nation-Building in MultiEthnic Societies: The Case of Iraq, in Ofra Bengio and Gabriel Ben-Dor,

eds., Minorities and the State in the Arab World (Boulder, CO: Lynne Rienner Publishers, Inc., 1999), pp. 149,

151-158. 65 Nir Rosen, Aftermath: Following the Bloodshed of America‘s Wars in the Muslim World (New York: Nation

Books, 2010), p. 245. This resistance turned especially deadly in the battle for Fallujah, fought between American

forces and the Sunni resistance. See Michael Schwartz, War Without End: The Iraq War in Context (Chicago:

Haymarket Books, 2009), pp. 233-236. 66 The perilous condition of Christians is captured in some recent news stories out of Iraq. See, for instance, Alissa

J. Rubin, ISIS Expels Last Iraqi Christians From Mosul, New York Times, July 19, 2014; Ronald S. Lauder, Who

Will Stand Up For the Christians? New York Times, August 20, 2014; Ross Douthat, The Middle East‘s Friendless

Christians, New York Times, September 14, 2014; Rana F. Sweis, Christians of Mosul Find Haven in Jordan, New

York Times, October 27, 2014. 67 See, for example, President George W. Bush‘s speech to the United Nations in 2004. The Reach of War: The

President; Bush, at the UN, Calls For Action to Widen Liberty, New York Times, September 22, 2004. As late as

the fall of 2009, Deputy Secretary of Defense Paul Wolfowitz was still claiming that he liberal democracy will

eventually triumph in Iraq. See Paul Wolfowitz, Realism, Foreign Policy, September/October, 2009, pp. 66, 72.

Paul Wolfowitz, in particular, has been described as a romantic Wilsonian who believed that democracy was a



327

from the adoption of democratic processes or abstract assent to niceties of manner and form,

but from an internalized sense of rightness.68

They did not appreciate, in other words, that a

nation‘s history and culture are decisive to the kind of government the people will

eventually affirm.69

Their failure amounts to a test-case for the practical implications of

jurisprudence. Had they thought seriously about Iraq‘s history and the various competing

sectarian forces harbored within these essentially artificial boundaries, they might not have

invaded at all, or, had they still done so, they would have very different plans for what a

post-Saddam-Hussein government should look like.

What, then, to do? The situation in Iraq has deteriorated gravely over the

course of the summer and fall of 2014. The radical Islamist movement known as the Islamic

State must be defeated. This is a nihilistic group, which cannot be part of any settlement.70

Once that is accomplished, however, Iraq is a crisis that cries out for a

comprehensive international resolution.71

Such a resolution must not attempt to cement back

Iraq‘s fractured nationhood. Centrifugal forces are too powerful. Sunnis, Shiites, and Kurds

must be permitted to go their separate ways. After all, as we have been discussing, the

essential prerequisite for sovereignty, for acceptance of the Rule of Recognition, is missing.

And that is a shared system of values and beliefs.

Ideally, any international involvement should engage the regional powers

most affected. Most especially, it must include Iran, which has strong ties with Shiite Iraq.

For their part, the Iranians must demonstrate responsibility and self-control. Saudi Arabia

must also be included. The Saudis have given support and succor over the years to Sunni

resistance and should now be called on to use their good offices to restrain their allies.72

universal idea. Mohammed Shareef, The United States, Iraq, and the Kurds: Shock, Awe, and Aftermath (New

York: Routledge, 2014), p. 31. 68 Michael Harland, Democratic Vanguardism: Modernity, Intervention, and the Making of the Bush Doctrine

(Lanham, MD: Lexington Books, 2013), pp. 1-7 (setting out the thesis that the ideological underpinnings of the

Bush doctrine - commitment to an immediate, democratic universalism - lay at the roots of its failure in action). 69 One could do worse than consult an older line of conservative thought, typified by Sir Henry Bolingbroke (1678-

1751), who maintained that the form of government is immaterial provided that it is agreeable to the spirit of the

nation governed, and is well administered. Preserved Smith, A History of Modern Culture, vol. II (The

Enlightenment) (Cambridge University Press, 2014) (reprint of 1934 edition), p. 199. In my estimation, well

administered must include accommodations for fundamental human rights. 70 On the threat posed by the Islamic State, there is a prolific literature. One might consult, among many others, A

Very Capable Terrorist Organization, The Gulf, August 1, 2014; Ravi Joshi, Iraq and Regional Implications -

Analysis, Eurasian Review, July 5, 2014; and Katrin Kurtz and Christoph Reuter, The Disturbing Rise of the

Islamic State, Der Spiegel Online, August 11, 2014. Cf., Chris Mansur, Eliminating the Scourage of Islamic State

in Iraq, Eurasian Review September 6, 2014 (making the case for urgent and comprehensive military intervention). 71 Without a serious, regional, multi-lateral involvement, the great danger, of course, is that the Islamic State might

prevail. See Gerard M. Gallucci, What If the Islamic State Wins? Analysis, Eurasian Review (November 14,

2014). 72 At present, of course, Iran and Saudi Arabia are competitors for influence in Iraq. See, for instance, Jelle

Puellings, Fearing a ‗Shiite Octopus:‘ Sunni Shi`a Relations and the Implications for Belgium and Europe



328

Finally, the Turks must be reassured that any new ―Kurdistan‖ will not become hostile to

their interests.73

What is needed, in other words, is statesmanship. And statesmanship begins

with an appreciation that legal theory matters. And if we do that, we will conclude that

sovereignty and the rule of law itself rest ultimately on the belief systems of the people.

IV. Conclusion

What have we learned from this study? I believe that several lessons are possible,

implicating not only legal theory, but its tangible application in one of the world‘s most

troubled regions.

(1) The Rule of Recognition must embody an underlying belief in its

rightness. It must be consistent with the values of those who apply it and those who must

lead their lives under its constraints.

(2) That value system must be shared by a strategically significant portion

of the population. Where there is a lack of consistency between popular value systems and

the Rule of Recognition, the possibility of instability is always present. In extreme cases, the

door is even opened to revolution.

(3) Jurisprudence, legal theory, thus has real world applicability.

Tragically, this is illustrated in the case of Iraq. In that nation, we have witnessed rejection

of the values of secular nationhood and the substitution of loyalties to faith or ethnicity.

(4) It is not always possible to build a multi-ethnic, secular state quickly

and automatically. The type of governance that should prevail in what is present-day Iraq

should be realistically suitable to prevailing value systems (provided, of course that the

extremists of the Islamic State are defeated).

(5) Iraq is a case suitable for resolution by international settlement.

Regional powers have too large a stake in the settlement to be excluded, but they must

behave properly in any settlement. The government or governments that arise from such a

settlement must be respectful of human rights, but should also be consistent with the values

and beliefs of the affected populations. The international community, ideally through the

United Nations, should serve as guarantor of the settlement that is finally achieved.

(Brussels: Egmont Papers, 2010), pp. 5-7 (stating the depth of the problem); and Simon Mabon, Saudi Arabia and Iran: Soft Power Rivalry in the Middle East (New York: Palgrave Macmillan, 2013), p. 69 (describing the types of

competition the two states engage in with respect to Iraq). 73 See generally Michael M. Gunter, The Kurds Ascending: The Evolving Solution to the Kurdish Problem in Iraq

and Turkey (New York: Palgrave Macmillan, 2008) (who remains optimistic that common ground might be found

between Turks and Kurds).



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Justiciability of Social, Economic and

Cultural Rights in Sri Lanka

Prospects and Challenges1

Wasantha Seneviratne2

Abstract

In the aftermath of the war every Sri Lankan aspires to see a rapid

development in the country and Sri Lanka to become a hub in Asia. This

aspiration is based on achieving a high level of social and economic

development in the country. Unlike civil and political rights, branded as

„negative rights‟ or „costless rights‟, realization of the „resource related‟

social economic and cultural rights in the near future is a tremendous

challenge. Sri Lanka being a state party to the International Covenant on

Economic, Social and Cultural Rights of 1966 it is bound to incorporate her

international obligations to the domestic law of the country. Although the

Constitution of the country includes important provisions on the protection

and promotion of the fundamental rights of people of Sri Lanka the

justiciability of social and economic rights remains a daunting challenge due

to a number of reasons. The research problem of this Article is to identify

these reasons and to explore ways of meeting the problem of justiciability of

social, economic and cultural rights in Sri Lanka. This paper is based on a

comparative study. Examples are drawn from well-developed legal systems.

The established jurisprudence of other countries, regional and international

bodies on this issue are analyzed. The justiciability of social, economic and

cultural rights is not a specific question to Sri Lanka but a common challenge.

Nevertheless, in recent years, an increasing number of countries have included

social and economic rights in their constitutions. Domestic, regional and

international judicial bodies have adjudicated social and economic rights

claims positively using a value coherent approach. Sri Lanka should keep a

breast with these emerging trends and take appropriate steps to introduce

necessary changes to our domestic law. Our courts should be allowed to

1This paper was presented at the International Research Conference held at the Kotalawela Defence University of

Sri Lanka in August 2013. The Chairperson of the panel was Hon. Justice Priyantha Perera, Former Judge of

Supreme Court of Sri Lanka. 2 Wasantha Seneviratne, M.Phil in Law, LL.B (Hons.) Attorney-at-Law, Senior Lecturer, Department of Public

and International Law, Faculty of Law, University of Colombo, Sri Lanka



330

adjudicate and uphold social, economic and cultural rights of people in this

country by carrying out a balancing exercise and applying the standard of

reasonableness through needed legal and institutional reforms. This paper

discusses these reforms to be introduced to our country in order to realize the

aspirations of Sri Lankans in terms of having fulfilled their economic and

social rights.

Key Words – justiciability, positive rights, negative rights, social, economic and cultural

rights

Introduction

Sri Lanka is now in a transitional phase moving from war to positive peace in the aftermath

of the cessation of thirty years protracted civil war between the armed forces of the State and

the militants of the Liberation Tigers of Tamil Ealam (LTTE). At present, one of the serious

challenges before the country is to achieve sustainable development through all possible

legal means to make our motherland a powerful centre in the region and the world. Assuring

a dignified life for all Sri Lankans through satisfactory realization of their basic human

rights has become an essential need of the hour. In the aftermath of the war every Sri

Lankan aspires to see a rapid development in the country and Sri Lanka to become a hub in

Asia. This aspiration is based on achieving a high level of social and economic development

in the country. For this, economic, social and cultural rights (ESCRs) of people should be

protected and promoted adequately. However, as it is discussed in this Article, realization of

the ‗resource related‘ social and economic rights in the near future is a tremendous challenge

due to various reasons. The objectives of this Article are to identify these reasons and to

explore ways of meeting the problem of justiciability of social, economic and cultural rights

in Sri Lanka.

This Article is based on a comparative study. Examples are drawn from well-developed

legal systems, i.e., Inter-American human rights protecting system, South Africa, India,

Canada and Argentina. Accordingly, the established jurisprudence of selected jurisdictions

on this issue is analyzed. The justiciability of social and economic rights is not a specific

question to Sri Lanka but a common challenge. Nevertheless, in recent years, an increasing

number of countries have included social and economic rights in their constitutions and the

courts have been proactive in deciding to uphold ESCRs of people when such rights are

infringed or under imminent threat. The below sections of the Article will examine some of

these developments.



331

Indivisibility, Interdependency and Inter-relatedness of

Human Rights

Human rights are inherent entitlements of people. These are birth rights of every human

being and very broad in nature. The concept of human rights has now transformed to be a

sound legal regime due to several initiatives taken by the United Nations after the World

War Two. The Charter of the United Nations has recognized the need to protect and promote

human rights worldwide and includes a number of provisions requiring the membership of

this world organization to follow.3 The UN

4 Human Rights Commission was created in 1946

for pursuing the UN Charter and worked on drafting the International Bill of Rights. The

initial international document drafted by the Commission was named as the Universal

Declaration of Human Rights (UDHR). The UN General Assembly adopted it on 10th

December 1948.5 It was proclaimed by the UN General Assembly as ―a common standard of

achievement for all peoples and all nations.‖

This was momentous because the UDHR being the first international instrument of human

rights and paved the way to recognize the universality of human rights.6 It basically includes

two categories of human rights: civil and political rights and economic, social and cultural

rights. The thirty articles of the UDHR can be divided into 2 parts. While first part (Articles

1-21) guarantees civil and political rights the second Part (Article 22-30) recognizes various

economic, social and cultural rights. Being a declaration the UDHR is described as a soft

law instrument. 7 Therefore, in the legal sense, it is a non-binding document on States.

8

However, it is widely accepted that the UDHR has turned to be customary international law

over the period of time through extensive state practice and strong psychological acceptance

of the rights included therein as law (opinion juris sive necesstats)9 by States. As a result, it

has become much harder than even a hard law instrument. Since its adoption, it has

developed to be a major factor in international law. Many of the rights in the Declaration

formed the groundwork for subsequent international human rights conventions, i.e., the

International Covenant on Civil, and Political Rights and the International Covenant on

Economic, Social and Cultural Rights. It was the pioneering document, which led the

adoption of many regional human rights documents such as the European Convention of

Human Rights, the European Social Charter, the African Charter of Human and Peoples

3 See, Preamble and Articles 1(3),13(2), 55(3), 56, 62(2) and 68(1) of the UN Charter.

4 UN denotes United Nations.

5 See the Resolution passed by the UN General Assembly - GA Res/ 2174 of 10th December 1948.

6 The UDHR, although not a legally binding treaty, is regarded as the most fundamental expression of international

human rights standards. 7 International Conventions represent hard law whereas Declarations, Guiding principles and Guidelines include

soft law. This classification is made due to the legally binding nature of the said instrument by States through

individual action of signature and ratification. 8 Being a declaration adopted at the UN General Assembly individual states have not become state parties by

signing and ratifying the UDHR. 9 Customary international law is recognized as a primary source of international law and has included in the Article

38(1) of the Statute of the International Court of Justice. See Article 38 (1)(b) ‗International Custom, as evidence

of a general practice accepted as law‘.



332

Rights, and the ‗Helsinki Accords‘. Moreover, the UDHR has been referred to by national

courts and by the International Court of Justice in numerous occasions. In Sri Lanka, the

Supreme Court of Sri Lanka has referred to the corresponding articles of the UDHR in

exercising its fundamental rights jurisdiction. For an example, in Bulankulama and Others v.

the Attorney General case10

(Eppawela case) the judges interpreted the relevant Articles of

the fundamental rights chapter of the Constitution of the country in light of the relevant

provisions of the UDHR.

After eighteen years of its adoption, it was decided that the rights in the Declaration were to

be separated into two separate covenants. Accordingly, two separate covenants in order to

give a more legal character and binding nature to the human rights stipulate din the UDHR.

The result has been the adoption of the International Covenant on Civil, and Political Rights

of 1966 (ICCPR) and the International Covenant on Economic, Social and Cultural Rights

of 1966 (ICESCR).11

The ICCPR includes civil and political rights, which are concerned to

protect the individual from the arbitrary exercise of power by the State. Catalogues of civil

and political rights generally include: rights pertaining to the life, integrity, liberty and

security of the person, rights with respect to the administration of justice, right to privacy,

freedom of religion and belief, freedom of opinion and expression, freedom of movement

and residence, freedom of assembly and association and the right to political participation.

These rights were called as first generation rights. The realization of these rights generally

does not invoke a high financial cost for a State and actions to be taken positively.

Therefore, civil and political rights are also described as negative rights. That means the

State is basically required to refrain from action interfering with the freedom of individuals

to pursue happiness and prosperity. However, now it has been recognized that the protection

of civil and political rights requires not only State abstention from interference but also the

commitment of significant resources and the ongoing maintenance of developed

infrastructure.

The ICESCR includes economic, social and cultural rights (ESCR). This category of rights

is concerned with the economic, social and cultural well-being of persons. Some examples

for these types of rights are the right to work and to just and favourable conditions of work,

trade union freedoms, the right to an adequate standard of living, including food, clothing

and housing, the right to health, rest and leisure, the right to education and the right to take

part in the cultural life of the community. These rights were called as second generation

rights. These rights are also known as ‗positive rights‘ or ‗distributive rights‘ since States

require taking positive actions and the allocation of considerable amount of resources in

order to realize them. An active response is required by the State to devise and implement

strategies and programmes and to commit resources to promote the progressive realization

10

Bulankulama and Others v. Minister of Industrial Development (Eppawala case), S.C. Application No. 884/99

(F/R). 11

In the context of the Cold War, there were deep ideological differences between ―individualistic‖ Western and

socialist concepts of human rights. Marxist theory endorsed State dominance of economic and social life. Civil

and political rights were regarded as capitalistic concepts which accorded the individual too great prominence in

society. With the end of the Cold War, the debate over the hierarchy between civil and political and economic,

social and cultural rights has become less significant.



333

of economic, social and cultural rights. It may become a burden on a country to maintain a

higher level of economic and social rights and probably link with the level of development

of a given country. Nevertheless, the Preamble to both Covenants emphasizes the

interdependence of the two categories recognizing that:

... in accordance with the Universal Declaration of Human Rights, the ideal of free

human beings enjoying civil and political freedom and freedom from fear and want can

only be achieved if conditions are created whereby everybody may enjoy his civil and

political rights, as well as his economic, social and cultural rights...12

There were various reasons for this division, such as the different nature of the rights, and

the different measures required to secure their implementation. Nevertheless, any clear

distinctions can be made between the two categories of human rights are not accepted as

wise since both categories of rights are essential for a dignified life for all human beings.

Both categories entail legal obligations on the part of States. At least to some extent, the full

realization of civil and political rights without the enjoyment of economic, social and

cultural rights is impossible. Indian Supreme Court has diligently pointed out the integral

nature of both categories of rights and their interdependence in several cases.13

The Teheran

International Conference on Human Rights of 1968, the Declaration on the Right to

Development of 1986 and the Vienna Declaration and Programme of Action of 1993

highlight the fact that all human rights are universal, indivisible and interdependent and

interrelated. Therefore this Article emphasize the justiciability of economic and social rights

in countries with particular reference to Sri Lanka in order to ensure a full pledge dignified

human life for everyone.

An Overview of Economic, Social and Cultural Rights

'Socio-economic rights' are defined as entitlements that 'give rise to the shared concern of

ensuring societies where everyone has a minimum decent standard of living consistent with

human dignity (the "bare necessities of life").'14

Numerous economic, social and cultural

rights are capable of immediate application by the judicial and other organs of the State such

as equal remuneration for work of equal value, rights to form and join trade unions and to

strike, protection of children from economic and social exploitation, the provision of

compulsory primary education. Protection of the full range of human rights requires for

people to have a full, free, safe, secure and healthy life. Right to live a dignified life can

never be attained unless all basic necessities of life such as work, food, housing, health care,

education and culture are adequately and equitably available to everyone. Economic, social

and cultural rights are often viewed as effectively ‗second-class rights‘ only to be fulfilled

12 See Preambles of the both the Covanants. 13 See for example Asian Games, Banduamukthmocha cases for judicial opinions to this effect. 14 See Frans Viljoen, 'The Justiciability of Socio-Economic and Cultural Rights: Experiences and Problems' (2006)

1 (unpublished, cited by , See also, 'Statement from Seminar on Social, Economic and Cultural Rights in the

African Charter (Adopted in Pretoria, 13-17 September 2004' (2005) 5 African Human Rights Law Journal 182,

('Pretoria Statement').



334

progressively over the period of time. However, as mentioned above the indivisibility and

interdependence of civil and political rights and economic, social and cultural rights as

fundamental tenets of international human rights law are recognized widely domestically as

well as internationally. Although ESC rights have received less attention than civil and

political rights, far more serious consideration than ever before is currently being devoted to

them. Economic, social and cultural rights are designed to ensure the protection of people as

full persons.

The International Covenant on Economic, Social and Cultural Rights of 1966 (ICESCR)

provides the most important international legal framework for protecting economic, social

and cultural rights. The below discussion examines selected rights embodied in the ICESCR.

Article 1 stipulates that all peoples have the right of self-determination. By virtue of this

right they should be allowed to freely determine their political status and freely pursue their

economic, social and cultural development. Article 2 emphasizes the obligations of States

parties. Accordingly state parties to ICESCR should assure these rights to the maximum of

its available resources, with a view to achieving progressively the full realization of these

rights by all appropriate means without discrimination of any kind as to race, colour, sex,

language, religion, political or other opinion, national or social origin property, birth or other

status. States should enact necessary laws ad should undertake legislative action in some

instances, particularly when existing laws are clearly incompatible with the obligations

assumed under the Covenant. It is important to examine the meaning of the following phrase

‗to [achieve] progressively the full realization of the rights‘. It is interpreted as

notwithstanding their level of national wealth, to move immediately and as quickly as

possible towards the realization of economic, social and cultural rights. This clause should

never be interpreted as allowing States to defer indefinitely efforts to ensure the enjoyment

of the rights laid down in the Covenant. The Committee on Economic, Social and Cultural

Rights says that all existing resources must be devoted in the most effective way possible to

the realization of these rights ‗to the maximum of its available resources‟. Limburg

Principles on the Implementation of the International Covenant on Economic, Social and

Cultural Rights requires ensuring minimum subsistence rights for everyone regardless of the

level of economic development in a given country. The meaning of ‗available resources‘ is

applied both to domestic resources and to any international economic or technical assistance

or cooperation to assure to everyone the satisfaction of subsistence requirements, as well as

the provision of essential services.

Maastricht Guidelines elaborates the role and responsibility of the State pertains to envisage

remedies and other responses to violations of economic, social and cultural rights.

Furthermore, the Maastricht Guidelines emphasize that the overall responsibility for human

rights violations rests upon the State and the State accordingly is obliged to provide effective

and necessary remedies. The Guidelines also draw attention to the fact that economic, social

and cultural rights are justiciable, and that victims should be able to seek and have remedies

at the municipal, regional and international levels.15

Consequently all victims of violations

15 Guideline 22.



335

are entitled to restitution, compensation, rehabilitation and satisfaction or guarantees of non-

repetition. 16

Very importantly this Convention highlights the equal rights for men and

women in Article 3. Accordingly both men and women should be guaranteed the same legal

entitlement to these rights. Article 4 of the ICESCR imposes limitations solely for the

purpose of promoting the general welfare in a democratic society. Such limitations should

be determined by law. Article 6 stipulates the right to work and require everyone to be

guaranteed the opportunity to gain his/her living by work which he/she freely chooses or

accepts. Technical and vocational guidance and training programmes should be provided

and policies and techniques should be established to achieve steady economic, social and

cultural development and full and productive employment. It is significant to set the

necessary conditions safeguarding, fundamental political and economic freedoms to the

individual to achieve the full realization of the right to work. We should remember that the

right to work is fundamental to the enjoyment of certain subsistence and livelihood rights

such as food, clothing, housing, etc. Right to work embraces both the right to enter into

employment and the right not to be unjustly deprived of work. Article 7 embodies the right

to just and favourable conditions of work. To guarantee this right a fair and reasonable

salary should be paid to all workers, an equal salary should be given for work of equal value,

ad should ensure decent living for workers and their families, provide safe and healthy

working conditions, equal opportunity for everyone to be promoted in their employment,

rest, leisure and reasonable limitation of working hours and periodic holidays with pay and

wages for public holidays. Article 8 includes the right to form and join trade unions and the

right to strike according to the laws of the particular country. Article 9 is of particular

importance to a country like ours. It requires providing the right to social security and social

insurance in order to protecting people in circumstances such as old age, disability, ill health

or other situations not allowing them to earn a decent living. The Committee on Economic,

Social and Cultural Rights requested member States to maintain social security schemes in

the areas such as medical care, cash sickness benefits, maternity benefits, old-age benefits,

invalidity benefits, survivors' benefits, employment injury benefits, unemployment benefits

and family benefits. The Committee has devoted particular attention to women, older

persons and persons with disabilities. Since family is the natural and fundamental group unit

of society, Article 10 stipulates rights pertain to the protection and assistance for the family.

It requires inter elia to assure the care and education of dependent children, to take special

measures of protection and assistance on behalf of all children and young persons,

particularly children and young persons should be protected from economic and social

exploitation. This Article refers to the special protection needs of mothers before and after

childbirth for a reasonable period of time with required maternity benefits to be provided

with and also to ensure that marriages to be entered into with the free consent of the

intending spouses. Article 11 incorporates the right of everyone to an adequate standard of

living for himself and his family, including adequate food, clothing- and housing, and to the

continuous improvement of living conditions. To guarantee this right the Committee on

Economic, Social and Cultural Rights obliges States to take the necessary measures. Article

16 Guideline 23.



336

12 includes the right to the highest attainable standard of physical and mental health, the

reduction of the stillbirth-rate and of infant mortality and for the healthy development of the

child, improvement of all aspects of environmental and industrial hygiene and the

prevention, treatment and control of epidemic and other diseases. Article 13 importantly

stipulates the right to education. It requires primary education to be made compulsory and

available free to all whereas secondary education including technical and vocational

secondary education is provided generally available and accessible to all. However, tertiary

education should be made equally accessible to all on the basis of capacity. Article 15

includes the right to culture and to benefit from scientific progress and to take part in

cultural life and to enjoy the benefits of scientific progress and its applications.

The Optional Protocol to the International Covenant on Economic, Social and Cultural

Rights is an international treaty establishing complaint and inquiry mechanisms for the

ICESCR. It was adopted by the UN General Assembly on 10 December 2008. It requires ten

ratifications in order to come into entry. It has 17 state parties and 45 signatories. It entered

into force on 5 May 2013.

Issue of Justiciability of Economic and Social Rights

Philip Alston points to the "vagueness of many of the rights as formulated in the Covenant

[on Economic, Social and Cultural rights] and the resulting lack in the clarity as to their

normative implications," as a key problem for the "underdeveloped justiciability" of such

rights.17

There has been a popular perception that economic, social, and cultural rights were

‗legal‘ rights, on the basis that they were not of ‗immediate application‘ but merely

aspirations of ‗progressive realization‘ (subject to resources). Whereas civil and political

rights were considered ‗law‘ for their ‗immediate applicability‘ (requiring from the state

negative action only-a ‗hands off‘ obligation), economic, social, and cultural rights were

seen as ‗needs‘ requiring positive action and interventionist policies. At best, economic,

social, and cultural rights were perceived as directives and not as giving rise to legally

binding duties. Even in the event that one could consider that economic, social, and cultural

rights entailed ‗obligations of some sort‘, it was pointed out that those were ‗obligations of

conduct‘ in contrast to civil and political rights which entailed essentially ‗obligations of

result‘. 18

Few interrelated features of socioeconomic rights contribute to the perception of non-

justiciability. Firstly, the vagueness with which international instruments define these rights.

Their vagueness functions as a negative feedback cycle, both resulting from and causing the

perception of non-justiciability. These prevent judges from applying them and developing a

17

Philip Alston, ‗No Right to Complain About Being Poor: The Need for an Optional Protocol to the Economic

Rights Covenant‘, in The Future of Human Rights Protection in a Changing World 86 (Asbjorn Eide & Jan

Helgesen eds., 1991). 18

Monica Feria Tinta, Justiciability of Economic, Social, and Cultural Rights in the Inter-American System of

Protection of Human Rights: Beyond Traditional Paradigms and Notions, (2007) Vol. 29 Human Rights

Quarterly, pp.433-444.



337

jurisprudence that clarifies their content. The second is the view that these rights impose

imprecise positive obligations to protect and fulfill rights. The positive steps states must

take, in contrast to the negative protections extended by civil and political rights, interfere

with their justiciability in several ways. Courts have more difficulty monitoring a

government's obligation to take positive steps than its duty simply not to interfere with

individuals' existing entitlements. This problem waxes where, as with the catalog of rights

provided for in the ICESCR, no convention or other source of law explicitly defines what

sorts of positive steps a state must take to comply. 19

There are a number of advantages of enhanced justiciability of ESCRs. It would have the

effect of enhancing the domestic justiciability of the same (and indeed all) sets of rights.

This is because domestic judicial organs can scarcely ignore the developments of

international law relative to the cases before them.20

According to Alston:

…[t]he mere possibility that complaints might be brought in an international forum

is likely to encourage governments to ensure that more effective local remedies are

available in respect of economic and social rights issues (thus making it less likely

that the international forum will be able to accept jurisdiction). For the same,

reason, individuals are given an incentive to explore potential domestic remedies

with which they might not otherwise have bothered. 21

ESCR jurisprudence can be expanded in two ways. First, civil and political rights have been

shown to possess socio-economic dimensions. These rights have been interpreted to extend

the right to non-discrimination and equality into the socio-economic arena (e.g. Prevention

of forced evictions, exclusion of minorities from social programs or education). ESCRs

themselves have been directly derived from civil and political rights. (e.g. the right to life

implies the right to water and food). This form of jurisprudence is most evident in North

America, South Asia (particularly India) and in the decisions of international human rights

bodies.

In India, the development of the jurisprudence of ESCRs is inextricably linked to the

development of a new form of legal action that is the public interest litigation (PIL) a non-

adversarial approach, ESCRs in India have been defined through judicial interpretation of

the Right to Life guaranteed under Article 21, rather than any direct guarantees in the Indian

Constitution. The development of progressively justiciable socio-economic rights in the

Inter-American and European systems and the global level are noteworthy. The adoption of

the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

19David Marcua, ‗The Normative Development of Socioeconomic Rights through Supranational Adjudication‘,

Vol. 42 Stanford Journal Of International Law, 2006, p,59-60. 20 Michael Kirby, 'The Growing Rapproachement between International Law and National Law' in Antony Anghic

and Garry Sturgess (eds), The Third World and International Order: Law, Politics, and Globalization (Martinus

Nijhoff, 998) 333, 354. 21 Philip Alston, 'No Right to Complain about Being Poor: The Need for an Optional Protocol to the Economic

Rights Covenant' in Asbjom Eide and Jan Helgesen (eds), The Future of Human Rights Protection in a Changing

World: Fifty Years since the Four Freedoms, (Norwegian University Press, 1991) p, 92.



338

(ICESCR) witnesses the sustained efforts towards the justiciability of ESCRs. Moreover, the

justiciability of socio-economic rights enhances the progressive development of associated

norms under the Charter and provides a means of ensuring state accountability and the

culture of justification.22

The injury-specific remedies that would result from litigation on

socio-economic rights violations would make justiciability an extremely useful and

attractive supervisory method.23

Finally, the justiciability of socio-economic rights is a

means for reclaiming equality for the marginalized and impoverished groups of people who

have no other viable avenue or financial resource to influence political decision making

processes. It is perhaps the most viable means through which they can voice their grievances

and oppose systemic exclusions that they face.24

Developments in Jurisprudence in selected jurisdictions

When the direct justiciability of socio-economic rights with the indirect approach proves

difficult South African courts have adopted an indirect approach. The interplay of the direct

and the indirect approaches to socio-economic rights justiciability is such that the former,

which is the end, can be enhanced through the use of the latter as a viable instrument.

However, in order to enhance the direct justiciability of the socio- economic rights and

freedoms of the African Charter there is a need to establish more normative clarity about the

rights guaranteed in the Charter and correlative state obligations.25

The indirect approach is

based upon the expansive interpretation of the more established and explicitly protected

rights (often civil and political or cross-cutting). The state's failure to respect, protect,

promote and/or fulfill these rights may result in violations of one or more socio-economic

rights or vice versa, and remedies to violations of one group of rights may prove effective

and adequate to redress violations of the other group. Right to equality and non-

discrimination the right to judicial protection and remedy and the right to due process are

interpreted by the South African Courts to make ESCRs justiciable. The equality guarantee

is therefore a thread that draws together all categories of human rights. The notion of

equality dictates the distribution of public resources for the protection and promotion of, for

instance, the right to health, labour rights, the right to education and other social goods and

services to everyone at equal measure.26

Therefore, the equality guarantee is not only a

fundamental right in its own right, but it is also a value that underlies the remainder of

human rights corpus. It is important to examine few cases decided by the Constitutional

Court of South Africa with a sharp focus on the justiciability of ESCR.

The Constitutional Court of South Africa has addressed the Constitution's social rights

provisions in numerous cases. Nevertheless, the core of its substantive jurisprudence has

22 Takele Soboka Bulto, ‗The Utility of Cross-Cutting Rights in Enhancing Justiciability of Socio-Economic Rights in the African Charter on Human and Peoples' Rights‘, (2010), Vol. 29( 2) The University of Tasmania Law

Review, p. 150. 23Ibid, p. 151. 24 Ibid, p.152. 25 Ibid, 160. 26Ibid, p. 162-65.



339

typically been identified from three fundamental cases: Soobramoney, Grootboom, and

Treatment Action Campaign (TAC).27

These initial cases established how the Court will

evaluate constitutional claims under socio-economic rights, with more recent cases

expanding and clarifying the full capacity of courts as remedial bodies in the area of socio-

economic injustice.28

In Soobramoney, the Constitutional Court faced a challenge to an

established hospital policy prioritizing access to dialysis treatments.29

A terminally ill

patient excluded by the policy from life-sustaining treatment sued under Section 27, the

right of access to healthcare, and other provisions. The Court affirmed the judicial

enforceability of social rights but held that neither the right of access to healthcare nor the

right to emergency medical treatment required the Court to overturn the otherwise

reasonable medical decisions of doctors and administrators faced with limited financial

resources. The Grootboom case addressed the right to housing for squatters in an informal

settlement outside Capetown.30

Ms. Irene Grootboom, along with 510 children and 389 other

adults, made a claim under Section 26, the right of access to adequate housing, and Section

28, the rights of children, seeking provision of adequate housing for adults and children

pending permanent accommodation. The Court concluded that governmental housing

programs violated the Constitution by failing to develop and implement a ‗comprehensive

and coordinated programme‘ to advance a constitutional right; particularly programs that

failed to address the housing needs of people ‗with no access to land, no roof over their

heads, and who were living in intolerable conditions or crisis situations. The order issued by

the Court required the government to remedy the program's failings, and assigned the

Human Rights Commission, an independent national body, to monitor and report on the

status of the changes.31

In the TAC case, the Court declared unconstitutional a government

program that restricted distribution of medication that dramatically decreased the

likelihood of mother-to-child transmission of Human Immunodeficiency Virus (HIV).32

The

Court ordered the government to ‗implement within its available resources a comprehensive

and coordinated programme‘ to address HIV transmission issues. It also ruled that the

government must devise a program that includes reasonable measures for counseling and

testing pregnant women for HIV, immediately remove the restrictions that prevented the

medication from being distributed widely, and ‗permit and facilitate‘ the use of such

medication for the purpose of reducing the transmission of HIV.33

In addition to these core

judgments, the Constitutional Court decided Occupiers of 51 Olivia Road Berea Township

v. City of Johannesburg, a case that may have even more practical effect. The plaintiffs

sought to halt otherwise legal government evictions of people residing in unsafe buildings in

Johannesburg. The Court held that the comprehensive program requirement announced in

Grootboom and TAC must include a meaningful process of engagement with the affected

27 Eric C. Christianse, Using Constitutional Adjudication to Remedy Socio-Economic Injustice: Comparative

Lesson From South Africa, Vo. 13 UCLA Journal of International Law & Foreign Affairs, 2008, p.369. 28Ibid. 29 Soobramoney vs. Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC), 1997 (12) BCLR 1696 (CC) 30 Government of the Republic of South Africa and Others vs. Grootboom (Grootboom) 2001 (1) SA 46 (CC), 2000

(11) BCLR 1169 (CC) 31 Ibid. 32 Minister of Health v. Treatment Action Campaign & Others (No. 2), 2002 (5) SA 721 (CC). 33Ibid.



340

community. Berea Township further limited the government's capacity to evict legal and

illegal residents unless a ‗good faith‘ negotiation and consultation process had occurred and

allowance had been made for the homelessness that could result from the action.34

The judicial activism of Indian Supreme Court with regard to the justiciability of ESCRs is

commendable.

India

India's jurisprudence in terms of the protecting and enforcing social and economic rights

also demonstrate striking developments on the issue at question. The Indian Constitution, in

its desire to ensure the welfare of the Indian people and social justice protects civil and

political rights as well as economic and social rights.35

However, it does make a distinction

between the two sets of rights. Part III of the Constitution enshrines fundamental rights,

including the traditional civil and political rights. These fundamental rights are directly

enforceable and justiciable before a court of law. Economic and social rights, on the other

hand, are incorporated in Part IV as Directive Principles of State Policy (DPSP) similar to

that of Sri Lanka. Article 37 of the Indian Constitution states that these DPSP shall not be

enforceable by any court but they are nevertheless fundamental in the governance of the

country. Article 38 reaffirms it is the state's duty to strive to promote the welfare of the

Indian people by securing and protecting a social order of justice. An important element in

the enhancement of the protection of socio-economic rights in India was the public interest

litigation movement.36

One of the first cases in which the Supreme Court explicitly

recognized the right to health (in this case of a worker) as an integral part of a meaningful

right to life is the Consumer Education and Research Centre v. Union of India case.37

In

subsequent cases, the Supreme Court has expanded the fundamental right to life, obliging

the state to create the conditions necessary to ensure good health.38

Another important

judgment relating to the right to health is the case of Paschim Banga Khet Samity v. State of

West Bengal.39

In that case, an agricultural labourer fell off a train and seriously injured his

head. In seeking treatment, he was turned away by seven state-run hospitals because they

lacked the necessary facilities for treating that type of injury or because of a lack of vacant

beds. The Supreme Court had to address the question whether this non-availability of

facilities for emergency medical treatment resulted in a breach of his fundamental right to

life guaranteed under Article 21 of the Constitution. The Supreme Court first stated that the

Constitution envisaged the establishment of a welfare state, at federal and state level, in

which it was the primary duty of the state to secure the welfare of the people, including the

34 Occupiers of 5 Olivia Road Berea Township and 197 Main Street Johannesburg v. City of Johannesburg &

Others (No. CCT 24/07) (2008) ZACC 1 (South Africa), at paras. 20-22. 35 Jennifer Sellin, Justiciability Of The Right To Health - Access To Medicines: The South African And Indian

Experience, 2 Erasmus Law Review. 2009, p. 445. 36Ibid. 37Consumer Education & Research Centre vs Union Of India & Others on 27 January, 1995 AIR 922, 1995 SCC (3)

42. 38 Jennifer Sellin, p.445. 39Paschim Banga Khet Samity v. State of West Bengal (1996) 4 SCC 37. at para. 4



341

provision of adequate medical facilities. It further stated that the preservation of human life

was of paramount importance and that, under Article 21, the state had an obligation to

safeguard the right to life of every person. The Court thus re-conceptualized the right to life

to impose a positive duty on the state. In the present case, the labourer's right to life under

Article 21 of the Constitution had been breached and he was awarded compensation by way

of redress. In addition, the Supreme Court ordered a number of remedial measures to

prevent a recurrence of such incidents in the future. In light of its case law and creative

interpretation of the fundamental right to life, the Indian Supreme Court has played a crucial

role in acknowledging the justiciable nature of the ESCRs. The Supreme Court has

interpreted the fundamental right to life in such a manner to include a number of social

elements.

Accordingly, the Supreme Court expanded the fundamental right to life to include positive

obligations for the state. It has, furthermore, issued instructions to the government to fulfill

its obligations under the Indian Constitution. Thus the Indian Supreme Court has been very

progressive by interpreting the right to life to include socio-economic rights. According to

Murlidhar of the Supreme Court of India, this expanding ESCR jurisprudence has

manifested itself in two ways. First, civil and political rights have been shown to possess

socio-economic dimensions. These more traditional rights have been employed in a fashion

to extend the right to non-discrimination and equality into the socio-economic arena (e.g.

Prevention of forced evictions, exclusion of minorities from social programs or education).

In other cases, ESCRs themselves have been directly derived from civil and political rights

(e.g. the right to life implies the right to water and food). This form of jurisprudence is most

evident in North America, South Asia (particularly India) and in the decisions of

international human rights bodies. In India, the development of the jurisprudence of ESCRs

is inextricably linked to the development of a new form of legal action, variously termed as

public interest litigation (PIL) and social action litigation together with the pioneering role

played by the Supreme Court of India. This form is characterised by a non-adversarial

approach, the participation of amicus curiae, the appointment of expert and monitoring

committees by the court, and the issue of detailed interim orders by the Supreme Court and

the High Courts. ESCRs in India have been defined through judicial interpretation of the

Right to Life guaranteed under Article 21, rather than any direct guarantees in the Indian

Constitution. The expanded notion of the right to life has enabled the courts, in its PIL

jurisdiction, to overcome objections on grounds of justiciability to its adjudicating the

enforceability of ESCRs. Subsequently, rights to work, health, shelter, education, water and

food are regularly litigated. Expressions such as ‗basic necessities of life‘ ‗bare minimum

expression of the human self‘ and ‗human dignity‘ found in several of the judgments have

explored the import of ‗life‘ in Article 21. In reading several of the related rights of dignity,

living conditions, health into the ambit of the right to life, the court has overcome the

difficulty of the justiciability of these as economic and social rights, which in their

manifestation as Directive Principles of State Policy (DPSP), are considered non

enforceable. Olga Tellis v. Bombay Municipal Corporation (BMC) 4 is a case in point. The

judgment handed down in this case expanded the right to life guaranteed under Article 21 of



342

the Constitution to include within its scope, the right to livelihood, which in this context

translated into the right to be allowed to remain on the pavements. The Supreme Court held

that

an equally important facet of the right to life is the right to livelihood because no

person can live without the means of livelihood. If the right to livelihood is not

treated as a part of the constitutional right to life, the easiest way of depriving a

person of his right to life would be to deprive him of his means of livelihood to the

point of abrogation.

Although the final orders in Olga Tellis found that the BMC Act of eviction of pavement

dwellers was valid (under Article 14 and 19 of the Constitution) and that pavement dwellers

should be evicted, the Supreme Court also laid down that this could be done only after

arranging alternative accommodation for them. In a sense, therefore, by imposing this strong

condition of providing alternate accommodation before eviction, the Supreme Court was in

fact upholding the right of the pavement dwellers to shelter. In its interpretation of Article

21, the Supreme Court has also facilitated the emergence of an environmental jurisprudence

in India, while also strengthening human rights jurisprudence. In several decisions, the right

to a clean environment, drinking water, a pollution free atmosphere etc. have been given the

status of inalienable human rights and, therefore, fundamental rights of Indian citizens. The

Court has also hinted at recognising the environment as intrinsically worthy of protection.

This new thinking is reflected in the Court‘s reasoning in Rural Litigation and Entitlement

Kendra, Dehradun v State of Uttar Pradesh6, one of the first environmental complaints that

were addressed to it. The Court issued interim orders halting the operation of limestone

quarries in the Dehradun valley in the state of Uttar Pradesh, on the ground that mining had

a deleterious impact on the surrounding environment. Although the Court did not

specifically mention Article 21 in this case, it based its five comprehensive interim orders on

the judicial understanding that environmental rights were to be implied into the scope of

Article 21. This was later emphasized upon in L.K. Koolwal v State of Rajasthan7 where the

Rajasthan High Court recognised the right to health and clean environment. The Court held

that the Municipality had a statutory duty to remove the dirt, filth etc from the city within a

period of six months and clear the city of Jaipur from the date of this judgment. A

committee was constituted to inspect the implementation of the judgment. A noteworthy

contribution in the L.K. Koolwal judgement has been the Court‘s elaboration of Article 19

(1) (a)-guaranteeing freedom of speech-to include the ―right to know‖. In this case, the

Court extended the right to know to entitle the petitioner to full information about the

municipality‘s sanitation programme, or the lack thereof.

The proactive role played by Indian courts is further exemplified in Municipal Council

Ratlam v Vardhichand and ors case.40

This case concerned a municipality that had failed to

construct drains; filth and dirt had accumulated, and people could not remain in the locality

due to the noxious nuisance. A magistrate passed an order, saying, ‗Construct a drain‘, but

40 AIR 1980 SC 1622



343

the municipality responded, ‗we have no money‘. It was appealed to the Supreme Court. The

Court held, among other things, that the ‗right to life‘ of the person is affected;

environmental pollution affects individual right to breathe fresh air, sanitary conditions are

essential for the proper enjoyment of this right. The Supreme Court through Justice Krishna

Iyer, upheld the order of the High Court and directed the Municipality to take immediate

action within its statutory powers to construct sufficient number of public latrines, provide

water supply and scavenging services, to construct drains, cesspools and to provide basic

amenities to the public. Justice Iyer observed ‗decency and dignity are non-negotiable facets

of human rights and are a first charge on the local self-governing bodies‟.

The protection and justiciability of socio-economic rights have similarly been enhanced in

numerous other jurisdictions through the use of the protection against non-discrimination.

The Canadian Supreme Court extended the protection of the equality provision (s 15) of the

Canadian Charter of Rights and Freedoms to socio- economic rights. In Eldridge v British

Columbia (Attorney General), the failure on the part of the Medical Services Commission

and hospitals of British Columbia to provide sign language interpretation for the deaf as part

of publicly funded scheme for the provision of medical care was found to be in violation of

the equality clause (s 15(1)) of the Canadian Charter. It was held in this case that

'Discrimination can accrue from a failure to take positive measures to ensure that

disadvantaged groups benefit equally from services offered to the general public.

In the US, relying on civil and political rights and the right to non-discrimination, advocates

have challenged prison conditions, the denial of social security, the criminalisation of

homelessness and segregation in education and housing10. As noted by Mario Foscarinis,

Director of The National Law Centre on Homelessness and Poverty, ‗the trend has been to

pass laws which make it a crime to sleep in public or to sit down on public sidewalks, things

that people who are homeless end up having to do because they have no place else to be‘. In

a landmark case, Pottinger v City of Miami11, six thousand homeless people in Miami

launched a class action alleging that police arrests and destruction of their property

interfered with ‗life sustaining‘ activities such as sleeping and eating. The evidence revealed

a systematic police practice of arresting homeless individuals, destroying their personal

property and even eliminating their food resources to prevent homeless individuals from

congregating. Justice Atkins in his judgment, found the police actions unconstitutional

because they constituted cruel and unusual punishment, violated due process rights and were

violations of privacy and the right to travel under the equal protection clause. A settlement

was eventually reached with the City of Miami whereby police cannot arrest a homeless

individual if no alternative accommodation is available.

The Constitution of Argentina also is significant to guaranteeing ESCRs. In 1994, an

amendment made to the Constitution facilitated the protection on ESCRs and created new

means of legal protection through a collective amparo action, which allows individuals to

file for the protection of a group. These changes are an indication that judicial interpretations



344

of international treaties handed down by relevant bodies would be binding law in Argentina.

Therefore, while the Argentine Constitution makes no explicit recognition of social rights, it

does have to take into account any ESCR decision taken by the Inter-American Court of

Human Rights or the Inter-American Commission on Human Rights. A landmark case in

Argentina is the Viceconte case, which successfully compelled the government to provide a

vaccine to prevent an endemic fever.

At a Workshop for Judges on the Justiciability of Economic, Social and Cultural Rights in

South Asia in 2001 Chief Justice S.P. Bharucha of Indian Supreme Court referred to a South

Asian judicial phenomenon whereby courts took steps to convert certain elements of

directives/principles of State policy into enforceable fundamental rights. It was said that the

courts must be mindful of the need to ensure that their decisions are capable of enforcement,

in order to preserve the credibility of the judicial system. Justice P.N. Bhagwati, in his

keynote address, shared information about different approaches followed by courts in order

to ensure protection of economic, social and cultural rights, and also highlighted the need for

close cooperation among all members of the legal community.41

At this Judges‘ workshop

on ‗the Justiciability of Economic, Social and Cultural Rights in South Asia‘ the participants

agreed that the issue of the justiciability of economic, social and cultural rights was

inseparable from the question of enforceability and the existence of adequate remedies. The

judiciary was urged to make use of appropriate judicial decisions of their own and of foreign

jurisdictions. Judges were encouraged to participate in national, regional and international

workshops and seminars in the area of economic, social and cultural rights, where they

could exchange ideas with a view to strengthening capacity with regard to, and increasing

sensitivity towards, economic, social and cultural rights.42

The workshop recognized that human rights were indivisible and interdependent and that the

rights enshrined in the International Covenant on Economic, Social and Cultural Rights and,

where relevant, the directives/fundamental principles of State policy contained in some

national Constitutions represented statements of clear legal obligation for the States

concerned. It was agreed that the principles set out in those documents gave direction to the

States concerned and give content and meaning to the fundamental rights enshrined in those

Constitutions. In Sri Lanka too, ESCRs are included in the Principles of State Policy and

fundamental duties in Article 27 and 28 in Chapter VI. Nevertheless, Article 29 of the

Constitution stipulates them as non justiciable.

The provisions of this Chapter do not confer or impose legal rights or obligations

and are not enforceable in any court or tribunal. No question of inconsistency with

such provisions shall be raised in any court or tribunal.43

41 Chief Justice of India, Presidential Address, Workshop for Judges on the Justiciability of Economic, Social and

Cultural Rights in South Asia, New Delhi, 17-18 November 2001.

2. Statement of Conclusions - Workshop for Judges on the Justiciability of Economic, Social and Cultural Rights in

South Asia . 42Ibid. 43 See Article27, 28, 29 of the Constitution of Sri Lanka.



345

The workshop for South Asian judges considered the following factors as relevant to the

issue of justiciability that had a negative impact on the realization of economic, social and

cultural rights:

(i) the inability of a large majority of persons in every society to have access to

justice, and the failure of States to remedy that inability;

(ii) the lack of awareness, and in some cases the absence of interest in learning

more, about international human rights standards on the part of the legal

community;

(iii) the lack of understanding of the nature and legal and policy implications of

international commitments, including the legal obligations of international

corporations, undertaken by States;

(iv) in certain cases, the absence of awareness and the indifference of government

officials in the implementation of those commitments;

(v) inadequate follow-up to public commitments such as plans of action and

pronouncements made in international forums; and

(vi) the lack of ratification by some States of the International Covenant on

Economic, Social and Cultural Rights and the failure to implement it fully of

some States which had ratified it.

The participants referred to the Principles of the Bangalore Declaration and Plan of Action

and urged the members of the judiciary in South Asia to interpret domestic law in

conformity with international human rights instruments, including the International

Covenant on Economic, Social and Cultural Rights. They recalled the responsibility of

national human rights institutions to play a proactive role in monitoring the performance of

the legislative and the executive branches of the State in the area of economic, social and

cultural rights.44

To ensure the justiciability of economic, social and cultural rights, the

workshop urged courts to make a conscious effort to adopt new strategies and techniques. In

order to meet the new challenges, the judiciary was encouraged to make use of the available

innovative means, such as court- appointed fact-finding commissions, to ascertain factors

bearing a negative impact on economic, social and cultural rights.45

Inter-American System of Protection of Human Rights also presents noteworthy

developments in relation to the jusitciability of ESCRs. The Inter-American organs have

consistently developed jurisprudence following what may be called ‗the indivisibility and

interdependence of rights approach‘. The right to life or right to humane treatment appears

interwoven with the right to health, the right to livelihood, the right to food, or the right to

44 See the Statement issued at the end of the Workshop for Judges on the Justiciability of Economic, Social and

Cultural Rights in South Asia, New Delhi, 17-18 November 2001. 45 Ibid.



346

education. The right to existence of indigenous populations (with their own social and

cultural specificities) has appeared in the interpretation of the right to life, the right to

integrity, and the right to property, linked to the right to health, to education, and to the

social and cultural rights of such populations.46

Article 1 of the American Convention,

concerned with the obligation to respect and ensure rights within the Convention, has given

rise to obligations to develop programs that address economic, social, and cultural rights.47

Freedom of association has been construed in cases involving workers by necessary

reference to trade union rights. The right to life, in accordance with the jurisprudence of the

Court, has been construed to include the notion of a "dignified and decent existence," which

necessarily encompasses ensuring basic economic, social, and cultural rights. Equal

protection and non-discrimination have similarly been construed in light of economic,

social, and cultural rights, including the just, equitable, and satisfactory conditions of work;

the right to social security; the right to a healthy environment; and the right to have access to

basic public services.48

The Inter-American Court in a number of important cases has held that economic, social,

and cultural rights could be made justiciable by means of interpretation. For an example, the

Villagr~n Morales et al case,49

a case concerning street children and the first international

case directly concerning the rights of the child in the jurisprudence of the Court, the Inter-

American Court examined facts reflecting the drama of children living in the streets of

Guatemala. These children ‗fought to survive alone and were fearful of a society that did not

include them‘. They were subject to unspeakable systematic violence perpetrated with

impunity, including torture and willful killing, at the hands of state agents. In fact, this case

raised gross violations of the right to life. The children had been executed with extreme

cruelty and their remains were left in the woods by their assailants, showing signs of having

been tortured and being bitten by wild beasts. The Street children case compelled the Court

to reflect on the meaning and scope of the right to life (and the duties of the state) of

victimized children who had been, even prior to their killings, already ‗deprived of creating

and developing a project of life and even to seek out a meaning for their own existence.‘50

Perhaps the most sweeping aspect of the Court's decision in the Villagrin Morales et al case

was the reasoning related to the protection of the right to life of these children.51

The Court

highlighted that such deprivation of life is even graver in cases concerning children. But the

analysis of the Court went further. It reflected upon the very scope of the right to life in the

face of the reality experienced by these minors in the streets of Guatemala City. Both the

46 Monica Feria Tinta, Justiciability of Economic, Social, and Cultural Rights in the Inter-American System of

Protection of Human Rights: Beyond Traditional Paradigms and Notions, (2007) Vol. 29 Human Rights

Quarterly, pp.431. 47 See, Article 1 of the American Convention on Human Rights. 48 Monica Feria Tinta, Justiciability of Economic, Social, and Cultural Rights in the Inter-American System of

Protection of Human Rights: Beyond Traditional Paradigms and Notions, (2007) Vol. 29 Human Rights Quarterly, p. 431

49―Street Children‖ (Villagrán-Morales et-al.) v. Guatemala, Inter-American Court of Human Rights, November

1999. 50 The Villagr~n Morales et al case, The Inter American Court referred to this principle of evolutive interpretation

in its construction of Article 19 of the Convention in its first decision concerning Article 19. 51 Monica Feria Tinta, p.432.



347

systematic nature of the persecution, torture, and killings of these children by state agents, as

well as the denial of a dignified existence to these children under the jurisdiction of the state

of Guatemala, were examined by the Court. From this analysis, the right to life included the

notion of the right to a dignified.52

The practice of the Inter-American organs proves that economic, social, and cultural rights

are as justiciable as any civil and political right. The jurisprudence of the Inter-American

Court on Human Rights shows that the only adequate way to redress human rights violations

is to look at rights in an integrated manner, taking full account of the fact that human rights

are indivisible, interdependent, and interrelated. 53

Conclusion

As we examined above the realization of economic, social and cultural rights is not that

easy. These are resource related rights and states are obliged to actively take several

measures for effective implementation of these rights. The justiciability of social and

economic rights is not a specific question to Sri Lanka but a common challenge. As we

examined above, domestic, regional and international judicial bodies have adjudicated

social and economic rights claims positively using a value coherent approach and an

indirect approach. The emerging trend in case law jurisprudence in a number of countries

demonstrate the enthusiasm shown by the judges of these countries to decide in favour of

the justiciability of ESCRs, which illustrate the potential for future legal action. The case

studies explored in this Article reveal an expanding ESCR jurisprudence wherein courts

have played a role in supervising positive obligations, particularly where government action

has been distressingly inadequate. Establishing ESCRs remains a major struggle in many

places where these rights are not enshrined in the constitutions or laws or where

international law is not incorporated within the domestic law. The principal strategy in such

circumstances has often been to ask courts to acknowledge the socio-economic dimensions

of civil and political rights since these are more likely to be actionable as the above

discussed case law illustrate to us.

In Sri Lanka many things yet to be done to establish strong jurisprudence with regard to the

justiciability of ESCRs. The Constitution of Sri Lanka is lacking a direct provision on the

‗Right to Life‘. Although there are decisions by the Supreme Court of Sri Lank to the effect

that acknowledging that the Right to life as impliedly in when interpreting the provisions of

the fundamental rights chapter of the Constitution of 1978 it has been established through an

exercise of overarching interpretation. Although some developments are emerged in terms

52 The Court acknowledged that ‗The right to life is a fundamental human right, and the exercise of this right is

essential for the exercise of all other human rights. If it is not respected, all rights lack meaning. Owing to the fundamental nature of the right to life, restrictive approaches to it are inadmissible. In essence, the fundamental

right to life includes, not only the right of every human being not to be deprived of his life arbitrarily, but also

the right that he will not be prevented from having access to the conditions that guarantee a dignified existence.

States have the obligation to guarantee the creation of the conditions required in order that violations of this

basic right do not occur and, in particular, the duty to prevent its agents from violating it.‘ 53 Monica Feria Tinta, p. 459.



348

of locus standi we still are far behind from an expanded public interest or social action

litigation. Although certain attempts were made to introduce inherent right to life (Article 8)

in a proposed Draft Constitution Bill in 2000 August it did not become a reality. That draft

Constitution in fact has included many ESCRs, such as Article 11- Right to Equality in

broader terms, Article 22 - Special rights of children (Health, Nutrition, Education), Article

24 – Social Rights (Health, Food, Water, Social Assistance, Non-eviction, protection of the

environment and prevent environmental damages and pollution, Article 30- public interest

and Article 171 – FR Jurisdiction of the SC. Sri Lanka should keep a breast with these

emerging trends and take appropriate steps to introduce necessary changes to our domestic

law. Our courts should be allowed to adjudicate and uphold social and economic rights of

people in this country by carrying out a balancing exercise and applying the standard of

reasonableness through needed legal and institutional reforms. Therefore, as discussed in

this Article Sri Lanka should introduce the necessary reforms in order to realize the

aspirations of Sri Lankans in terms of having fulfilled their ECSRs. There is thus need to

adopt measures that elaborate the nature of responsibilities of the state in connection with

ESCRs. First, it is essential to inculcate a culture where the principle of equality is

concomitant with the progressive realisation of rights. Second, it is of crucial significance

that the principle of legitimate expectation in the ESC rights context be used especially

when a government promises something, it should be held to account. Third, the socio

economic entitlements should be developed in a way that it translates into direct benefits

thereby making ECRs enforceable.

Die when I may, I want it said of me by those who knew me best that I always plucked a

thistle and planted a flower where I thought a flower would grow.

- Abraham Lincoln



349

Role of the JMO

In criminal justice system of Sri Lanka

How to get his service in an efficient manner

Dr. Ajith Tennakoon MD (USSR), DLM, MD (SL),

Dip.RCPA(Aus), MFFLM(UK)

Chief Consultant Judicial Medical Officer

Institute of Forensic Medicine and Toxicology, Colombo

Who is a Judicial Medical Officer (JMO)?

Judicial Medical Officer is an expert professional, board certified as a specialist in

Forensic Medicine by the Post Graduate Institute of Medicine (PGIM) of the University of

Colombo. He is a specialist medical officer attached to the Ministry of Health. Becoming a

Specialist in Forensic Medicine is a long and strenuous process. After graduation with the

basic medical degree one has to complete the internship, followed by compulsory working

experience for at least one year after the internship and has to get selected into the in-service

training in forensic medicine by passing the selection test. After two years of in-service

training in recognized medico legal center under the supervision of board certified specialist

has to pass the Diploma in Legal Medicine which is a prerequisite at present to get enroll

into the program leading to MD (Doctor in Medicine) in Forensic Medicine. Then candidate

has to complete another two years in service training one year of which has to be in a

Department of Forensic Medicine of a Medical Faculty to get teaching skills.

On successful completion of training the candidate has to get through a very competitive

examination to obtain the MD in which an eminent foreign forensic expert will be in the

examiners panel to maintain the standards of the examination in par with developed

countries. When successful, the candidate has to submit a research proposal and also to have

two years post MD training under supervision of experts. One year of this training should be



350

in a recognized overseas center and one in a local center. Then only the candidate will be

board certified as a specialist in Forensic Medicine. Assuming that a candidate will pass all

exams at first attempt it will take minimum of seven years to become a specialist after

graduation in basic medical degree.

Specialists who are attached to the Ministry of Health are ONLY given the designated post

―Consultant Judicial Medical Officer‖. At present they are positioned in all provincial and

General Hospitals in the country except in a few in North and East, and in some base

hospitals. They are 30 odd in number at present though the identified cadre position in the

Ministry of Health is 65. Unfortunately Forensic Medicine at present is not an attractive post

graduate subject among young medical graduates. Very few take up this field as a carrier

every year.

The Ministry of Health to overcome this problem has appointed ordinary medical officers

mostly who are after internship as a Medical Officer- Medico Legal (MO- Medico Legal) to

carry out the medico legal duties. These doctors were given one month very basic training in

the Institute of Forensic Medicine and Toxicology (former known as Office of the

JMO/Colombo) on medico legal duties and allowed to work in small hospitals. These

MO/MLs are working under the supervision of the consultant of the area in peripheral

hospitals. They also work in the consultants centers. Doctors who hold Diploma in Legal

Medicine only are called ―Assistant JMOs‖. These consultants, AJMOs and MOs provide

medico legal service throughout the country.

In addition to this in teaching hospitals where medical faculties are located, board certified

specialists in Forensic Medicine attached to Ministry of Higher Education are working as

senior lectures and professors in the Departments of Forensic Medicine of the Faculties of

Medicine. These specialists also provide medico legal service to some police areas (five

police stations in Colombo) or ten days in month basis (in Karapitiya, Kalubowila,

Peradeniya and Ragama). This will help them to collect teaching materials necessary for

teaching students.

Consultant Judicial Medical Officer is the official designation given only to specialists

working in Ministry of Health in every province and districts of the country.

JMO as an impartial expert member in criminal investigation

team

He is a very important member of the team of criminal investigation. It is important to

understand his role by the other members of the team in order to get his service in most

appropriate manner. In following circumstances it is important to get his service in very

early stage of investigation.



351

In a suspected death

a. Crime scene investigation:

It is important that forensic doctor visits the scene at earliest. The magistrate should instruct

the Police whenever possible to take JMO to crime scene. Delay of Magistrate‘s visit should

not be a reason not to call JMO to visit the crime scene early. JMO is the best person to

advice and supervise on certain activities to carry out in identifying and collection of vital

evidences on the dead body as well as in the vicinity. He also may advice on proper

transportation of the body to the mortuary. There is a specially equipped crime scene mobile

unit in the Institute of Forensic Medicine and Toxicology for this purpose.

b. Conducting an autopsy

Autopsy is a scientific examination of a dead body including external examination,

opening into all body cavities, evisceration and dissection of all internal organs,

taking samples for various ancillary investigations in order to find the answers to

following questions by available medical evidence. This can be done only in the

mortuary with at least basic facilities. Field post mortems are not conducted now.

Autopsies are also not conducted in night unless it is an exceptional situation.

- Identification of the deceased

- Types of injuries

- Types of weapons caused those injuries

- What is the fatal injury/injuries

- Cause of death.

- Contributing diseases to the death

- Positions of the victim and assailant

- Volitional activities.

- Consumption of alcohol or any drug prior to the death

- Presence of evidence of sexual assault

- What has not happened and what has happened.

In a case of sexual assault:

Other than the victim forensic doctor is the most important witness in a trial in sexual assault

case. It is the responsibility of the Police to get medico legal examination done at earliest. It

is important to understand the various types of opinion given by the doctor initially in the

MLEF (Medico Legal Examination Form) and later in the MLR (Medico Legal Report).

Especially with regard to the types of injuries in genital organs and types of penetration etc.



352

In a case of Child Abuse

Prompt and proper medico legal examination of victim of child abuse is also very important.

It should be done preferably by a specialist whenever possible. In some cases children will

be admitted to pediatric wards and managed by a team consisting a pediatrician, psychiatrist

and JMO. Medico legal examination and sending a Medico legal report to the courts is the

responsibility of the JMO. This team with the Police investigating officer and the probation

officer sometime conducts a case conference in order to identify various issues pertaining to

best interest of the child and his physical and psychological wellbeing. JMO may indicate

some of these decisions in his MLEF and MLR as recommendations. These

recommendations may also be delivered to the knowledge of the Magistrate through the

Police or the probation. It is important that the judiciary consider these recommendations.

Referring a person for a medico legal examination by the courts

Very often people (victims or suspects of crimes) are referred by the courts to JMO for

medico legal examination. It is very important to indicate the reason for referral and

expected type of examination very clearly in a separate letter addressed to the JMO. (Please

refer circular No. 270 of 19th

December 2001 issued by the JSC)

Getting a MLR or PMR to courts

It is important to get MLR or PMR to the case file as early as possible to avoid delay in

court hearing in Magistrate level. Doctor will prepare a Medico Legal Report based on

notes he made in the Doctors copy of the Medico Legal Examination Form. In order to trace

the particular MLEF from many files the doctor needs 05 vital informations.

1. Patients name

2. MLEF number

3. Date of issue

4. Issuing Police

5. Doctors name who examined (JMO)

6. SR number (if present )

Other information like Bed Head ticket number (BHT), Date of examination and others

will not be helpfully as MLEFs are filed in such a way that above information cannot be

used to trace the particular MLEF.

It is very important that the case is filed ONLY with the Police copy of the MLEF.

After the medico legal examination this copy will be return to Police. It‘s very

unfortunate that some cases are filed with a copy of a diagnosis card issued to patient by

clinicians for treatment purpose. Clinicians (surgeons, physicians and others) do not

conduct medico legal examination on patient but only JMOs. Problem is once the case

is filled with diagnosis card summons are issued to clinician to send MLR because his

name stamp appears in the diagnosis card. Obviously he cannot send the report as he



353

has not done medico legal examination or he does not have any records about the

patient. Therefore, it is important to make sure that the police copy of the MLEF is in

the case file and summons to be issued to particular JMO whose name appears in the

MLEF.

When the post mortem report (PMR) is required following information are necessary.

1. Deceased‘s name.

2. Date of performing the autopsy

3. Place of autopsy.

4. SR number (if known)

The Forum of the Consultant JMOs of the ministry of health has prepared a notice to be

sent to doctors instead of summons when a MLR or PMR is called. It has being accepted by

the Judicial Service Commission and now being used by most of the courts. It is very

important to correctly fill the notice. Registrars and the staff of courts should be educated

about these facts.

It is also important to make sure that the summons are delivered to the doctor in due time.

Very often the Police does not deliver it timely but send a police message at last movement.

If possible contacting the doctor in form of letter with the notice is the best way to avoid

unnecessary delay in getting a report.

It is important to file these reports correctly to the case records. We have found several

instances where reports are not filed properly or been missing from the files and doctors are

being issued warrants for not sending reports. It is important to send an acknowledgment for

reports (MLR or PMR) in a form of ―certificate of receipt of medical reports‖ (Health 42a)

which will be sent alone with any medical report to courts. This should be signed by the

registrar and send back to the doctor.

Tracing a doctor to get a report may be a problem at times. Best way to trace a doctor is to

contact the Police Post or the head of the institute of the hospital where the medico legal

examination or the autopsy was done. Area CJMO is also may help to trace the doctor. In

failure only the DGHS should be contacted.

It is recommended that Magistrates have a good relationship with the area consultant JMO

in order to get medico legal and various administrative advices. Names and the contact

numbers of all consultant JMOs are given below.



354

No. Name of the CJMO Station Contact Nos

1 Dr. Ajith Tennakoon IFMT 0717961615,

2 Dr. H.M.S.K.Senanayake TH-Anuradhapura 0718195569

3 Dr. Keerthi Gunathilake BH Gampaha 0777575844,

4 Dr. Bandula Abeysinghe CSTH 0718153242

5 Dr. P.R. Ruwanpura TH Karapitiya 0714941412

6 Dr. Maxi Fernando TH Kaluthara 0777465605

7 Dr. M. Sivasubramanium TH Kandy 0718609434

8 Dr. D.L. Waidyarathna TH Mathale 0718423041

9 Dr. P.B. Dassanayake BH Panadura 0714064655

10 Dr. D.K. Wijewardana BH Kuliyapitiya 0714416748

11 Dr. H.T.K. Wijayaweera GH Badulla 0777900472

12 Dr. H.P. Wijayawardana CNTH 0714199951

13 Dr. Uthpala Atygalla IFMT 0773537442

14 Dr. S.P.A.Hewage IFMT 0773111753

15 Dr. D.D.Samaraweera GH Mathara 0777910860

16 Dr. Banda Y.M.G.I. BH Chilaw 0718197102

17 Dr. S.D.C.Perera On overseas leave 0718100161

18 Dr. Sumith Ambepitiya TH- Karapitiya 0718194323

19 Dr. M.N. Rhuhul Haq BH- Negambo 0771039211

20 Dr. Ajith Jayasena GH Kurunegala 0773438345

21 Dr. A. Dayapala BH Avissawella 0724158935

22 Dr. Tikiri Gunathilake GH Rathnapura 0776001496,0777705997

23 Dr. Prabath Senasinghe BH Peradeniya 0718162556

24 Dr. A.M.A.T.R. Alagiyawanna BH Kegalle 0714493323

25 Dr. Sisira Senevirathna BH Hambanthota 0772609496



355

26 Dr. Sriyantha Amararathne BH Putlama 0777902337, 0719901801

27 Dr. Rajaguru C.K. BH- Monaragala 0773062964. 0718068718

28 Dr. Muditha Kudagama BH- Nuwaraeliya 0777315623

29 Dr. Kumarasiri Mahasen BH- Nawalapitiya 0773212964

30 Dr. Mayoradhan U TH-Jaffna 0772988871

31 Dr. Sujeewa Wikramarathna GH- Baticoloa 0713392730

32 Dr. W.A.S.R. Rajapaksha GH- Polonnaruwa 0714492887

God and nature first made us what we are, and then out of our own created genius we make

ourselves what we want to be. Follow always that great law. Let the sky and God be our

limit and eternity our measurement.

- Marcus Garvey



356

The Shifting Facet of the

Ethical Dimension

Corporate Social Responsibility Today

Dulani Weeratunga (LL.B, LL.M)

Additional Magistrate, Colombo.

Introduction

In the modern milieu, the speed of development and change in infrastructure and

connected effects have required companies to be more flexible and responsible in different

spheres compared to the situation of a company a decade ago. The modern economic trends

have elevated the performance of a company to a new vista and companies have to deal not

only with the changing local needs but also with the rapid developments in the global

economy being constantly aware of the technological advancements, the intensification of

access to information, transformations in the international spheres of business and more

importantly perhaps, of the escalating environmental damage and degradation. Apart from

these external factors, a company has to address the changes that occur within the

organization itself. These internal changes may be due to an initiative taken by the company

to respond to the external variations or simply may be due to the need to improve. Business

outsourcing, where even the core business activities may be outsourced, is one of the key

aspects that has arisen in this context and has gained priority over the traditional business

practices.

On another level, the adoption of new technology, breakthrough research and development

procedures have contributed to upgrade and enhance the performance of the company. Thus,

companies experience reduced costs, greater flexibility and enhanced quality which results

inevitably in accelerated competition between the products and the services on offer. Most

consumers today, especially in affluent communities, are able to choose their commodities



357

from a variety of products. The progress in technological advancements have not isolated

the individual consumer and therefore, the consumer today is more empowered to question

the commodity he is presented with and is more at a liberty to refuse and choose.

It is in this context that the concept of Corporate Social Responsibility (hereinafter referred

to as ―CSR‖) has gained recognition and value. Business leaders have begun to appreciate

the significance of the social perception regarding the reputation of a business as a

contribution to the competitive advantage. The role played by the consumer today is

unarguably more sophisticated and more demanding in comparison to their counterparts

several years ago. The empowerment of the consumer may be due to the easy access of

information that is consequential to the economic and technological growth or to the

activities of the State itself.1

Defining CSR

It has been progressively identified that ―The social responsibilities of companies range

from compliance with health and safety regulations for employees, to environmental

protection to corporate governance. Companies too are endowed with economic, social,

ethical and environmental responsibilities, some of which require compliance with the law,

others requiring discretionary action to ensure that the company does not knowingly operate

to the detriment of the society. At the heart of the CSR movement are the issues of

transparency and accountability so that the stakeholders and the company itself audits and

reports on its ethics and financial, social and environmental affairs.‖2

The World Business Council for Sustainable Development defines CSR on similar lines as a

―continuing commitment by business to behave ethically and contribute to economic

development while improving the quality of life of the workforce and their families as well

as of the local community and society at large.‖3

The European Commission recognizes CSR as ―a concept whereby companies integrate

social and environmental concerns in their business operations and in their interaction with

their stakeholders on a voluntary basis‖4 and the Institute of Chartered Accountants in

England and Wales contemplates that ―Corporate Responsibility is about ensuring that

organizations manage their businesses to make a positive impact on society and the

environment whilst maximizing value for their shareholders.‖5

It is submitted that although the definitions are not unanimous the underlying premise is that

a corporation should act beyond its business interests and should endeavour to safeguard the

interests of a wider category of persons. These definitions necessarily identify that CSR is an

1 See for example The Consumer Affairs Authority Act, No.9 of 2003 2 McIntosh, Leipziger, Jones and Coleman, Corporate Citizenship, Pitman Publishing, (1998) p284 3 http://www.wbcsd.org/templates/TemplateWBCSD5/layout.asp?type=p&MenuId=MTE0OQ [29/08/2008] 4 http://ec.europa.eu/enterprise/csr/index_en.htm [29/08/2008] 5 http://www.icaew.com/index.cfm?route=127637 [07/12/2007]



358

external factor that requires to be integrated into the internal activities of the organization in

order to be perceived as a socially responsible corporate citizen.

CSR and the changing face of the ethical dimension

CSR has its roots deeply embedded in corporate ethics6. As such, CSR was thought to be of

only ethical value and was considered a practice which companies undertook simply

because it was ethical to do so. There was no coercion behind it. However, this idealism

changed drastically with the inset of globalization and the developments in the information

technology contributed by providing an arena for discussion, thought and most importantly,

access. Consumers became more informed of the products and were at a liberty to choose

thereby accelerating competition among corporations. The empowerment of the consumer

placed them on a higher bargaining position and facilitated a situation to question the

products that were made available to them, which in turn elevated the relationship between

the company and the end user to a distinctive dimension. It is submitted that this

independency of the consumer who was free to question the product required the companies

to be more aware of not only the quality of the end result but also of the quality of the

associated processes and business conduct.

The State by enacting legislation, that mandates compliance, required companies to be

responsible on a more mandatory and a legal sphere. Legislation has also facilitated a forum

where the consumer is empowered to assert his rights.

Another occurrence that has a direct impact on CSR is globalisation where the acceleration

of environmental degradation, overuse of resources, over consumption and overpopulation7

cast a tremendous duty upon a corporation to be socially conscious and responsible.

Corporate ethics as well as State intervention play a vital role in carrying out CSR initiatives

to overcome these predicaments by ensuring that corporations act in a socially responsible

manner.8

The most significant result of all the above factors is the increased competition, which

prompts companies to adopt CSR at least to maintain the competitive advantage. Jack

Welch9 is of the opinion that ―social responsibility begins with a strong, competitive

company‖ and that ―Only a healthy enterprise can improve and enrich the lives of people

and their communities.‖10

Therefore, competition is a catalyst for companies practicing CSR

while CSR would undoubtedly contribute to increased market share.

6 See generally, McIntosh, Leipziger, Jones and Coleman, Corporate Citizenship, Pitman Publishing, (1998); Thilakarathne, Indeewara, ‗Indigenisation of Creative Capitalism‟, Sunday Observer, 14th September 2008, p33 7 Brown, Doug ―Insatiable is not Sustainable‖, Praeger Publishers (2002), p202 8 This is mainly through enacting social and welfare legislation, for example environmental legislation, labour

legislation etc. 9 Former CEO of General Electric, vide: Welch Jack and Byrne A. John, jack, Warner Books, (2001) 10 Ibid, p381



359

It stems from the above that a company cannot be concerned only about protecting the

environment or philanthropical activities under the pretext of practicing CSR for the modern

era neither permits to adopt CSR in isolation nor recognizes it having only an ethical value.

The forces that drive CSR have diversified, multiplied and mandated that the individual

company cannot allow only ethical considerations to dominate. The broader perspective of

CSR includes human rights, child rights and labour rights, supplier chain considerations and

legislation as well. In brief, CSR is concerned with the internal environment including the

employees of the company as well as being responsible to the external environment of the

company.

The Sri Lankan perspective

In the Sri Lankan milieu, CSR continues to play an important role. Government and semi-

government organizations along with private sector organizations are incorporating good

corporate citizenship into the mainstream business activities and the need to be accepted as a

conscientious corporate citizen has resulted in numerous social welfare projects of varying

capacities.11

Despite these numerous social conscious projects carried out by various

organizations, the Sri Lankan consumer perspective in respect of CSR continues to be

marginal and the popular belief seems to be that companies are not genuinely concerned.12

However, the increasing CSR projects undertaken by organizations would help in changing

this perception to a certain extent since consumers would undoubtedly associate the socially

responsible factor with the organization product or service.

In considering CSR and philanthropy although the former may certainly have its roots in the

latter philanthropy is only one aspect of CSR. With the rapid globalization and changing

market conditions CSR has become a more challenging concept than mere philanthropical

activity and these two are essentially different perceptions in the modern global parlance to

which Sri Lanka is no exception. Sri Lankan corporations have to accept this truth.

To be successful then, CSR has to be strategically incorporated into the core business of the

company. If this is not feasible, a strategic long-term vision is required to implement CSR in

a beneficial manner. In addition to strategy, sustainability is the other key word and these

two are interconnected and inter-related with CSR. The difference between a normal social

service project and implementation of CSR effectively lies in this interconnection since a

normal social service project would certainly lack a ―sustainable development strategy.‖13

The idea therefore should not be to implement CSR as an isolated exercise or outsource this

11 See above. And also the Unilever oral health care camps in Hambantota and Malkaduwa. ‗Unilever‟s Signal a

boon to 15,000 families in Malkaduwa‟, Financial News, Sunday Observer, 14th September 2008, p44, the Dialog

Telekom PLC‘s scholarship scheme for the top scorers in physical science streams at the Advanced Level Examinations; ‗Dialog Merit Scholarship Awards ceremony‟, Financial News, Sunday Observer, 05th October

2008, p 44 12 Vide: Study by the International Alert in 2005, http://www.international-

alert.org/pdf/peace_through_profit_sri_lanka_csr.pdf

[02/09/2008] 13 Whybrow, Samantha ‗The CSR Debate‟, The Nation Economist, The Nation, 31st August 2008, p4



360

activity so that the Company concentrates on its core business but to integrate CSR

strategically into the core business so that the company gains improved image, customer

loyalties, and increased market share while improving itself ultimately. Such strategic

adoption would also assist to eradicate misconceptions and mistrust associated with

companies that perform CSR.

Since a detailed evaluation of the driving forces of CSR is not required at this point, it is

sufficient to say these factors continue to be applicable in the Sri Lankan context as well. As

stated previously, a single legislation mandating CSR is not feasible in any context.

Organizations should be given the freedom to operate and legislation should not stifle their

activities but facilitate them. However, it is firmly believed that there should be a degree of

induction since according to Justice Weeramantry, ―inadequate legal policing of corporate

activity leaves enormous room for fraud and victimization of the public and tends to create

in the consumer and the citizen the feeling that the law is impotent to hold back financial

might from day to day abuses of power.‖14

The Sri Lankan experience reveals that social welfare legislation seek responsibility in

addition to compliance. Especially in the sphere of labour law, employers are required to be

responsible to the labour force. This may be by providing dispute settlement mechanisms,

recognizing the right to organize, compensation or protecting child rights and human rights

while promoting gender equality in the organization. This is further strengthened by the fact

that Sri Lanka is a signatory to all the core conventions of the International Labour

Organization.15

Hence, the responsibility cast on the State in ensuring the welfare of the

workforce ultimately mandates organizations to be responsible to its labour component to

the extent that in some occasions it has been criticized that labour legislation overly stresses

the welfare of the employee.16

The drawback in respect of environmental legislation is the absence of a separate legislation

that deals with pollution. Many countries have enacted special laws to address specific

pollution problems. For instance, the US passed the ―G.R.E.E.N Act‖ recently, which

addresses energy efficiency to promote environmental and social concerns.17

Nevertheless,

the establishment of the Central Environment Authority with wide powers under the NEA

addresses this problem to a certain extent. In respect of marine pollution, new developments

should be addressed while strengthening the compliance mechanism. There is a great

potential in this aspect and efficient monitoring would effectively implement CSR into an

organization.

The Companies Act No.7 of 2007 endorses the concept of CSR in a broader manner than

that of its predecessor. The codification of director‘s duties, the introduction of the solvency

test and the additional disclosure and reporting mechanisms have resulted in greater

14 Weeramantry C.G., ‗The Law in Crisis‟, Capemoss, (1975), p226 15 http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?(Sri Lanka) [27/07/2008] 16 Amerasinghe, Franklyn ‗Industrial Law and Relations in Sri Lanka – Meeting Contemporary Challenges‘,

www.lawnet.lk 17 As stated in http://www.enterprisecommunity.org [20/10/2008]



361

transparency and enhanced flexibility of the activities of the company. A company is thus

mandated to be responsible for its activities and where the circumstances so requires, the

directors and officers of the company are held personally liable for certain offences.18

On a broader level, the role of the judiciary in interpreting legislation also has a crucial

effect since progressive thinking in this respect would enhance the responsibilities endowed

on an organization or a body corporate.

Mandating CSR – the way forward

The practice of CSR has been induced by various factors such as economic, global and

social, which have slowly begun to overshadow the singular ethical dimension it possessed

at the beginning of the century. Globalization and rapid advancement of technology has

inevitably made the consumer or the end-product user more sophisticated thereby putting the

corporations in a more vulnerable position compared with the situation in the past. In

addition, most corporations have taken up the initiative to be socially responsible by

contributing to the society in which it operates. Emerging as a responsible corporate citizen

has become the norm compared to the situation earlier where CSR was thought to be only a

marginal issue.

The mandating of CSR would necessarily depend on the inherent characteristics of CSR, the

main being the ethical flavour that is associated with it from the inception. Therefore, to

recommend the State should mandate CSR compulsory would be futile. In addition, business

autonomy should be preserved and compelling organizations to adopt CSR would

unnecessarily restrict the activities of the company. It is submitted that the solution is to

provide an induction and compel companies to be responsible for its activities on identified

areas such as environmental concerns, human rights etc. Although the existing legislation

does address these areas, in many instances the laws are archaic and therefore outdated.

Hence, it would be beneficial to evaluate the modern economic and business practices and

incorporate these modifications to the existing legislation. However, a straightforward

mechanism in dealing with pollution which reflects international thinking would be

beneficial in furthering CSR.

In addition, a significant contribution could be made by CSR in the sphere of the United

Nations Millennium Development Goals19

where the objectives deal with eradicating

poverty, eliminating gender discrimination, increasing child welfare and the sustainable use

of the environment. It is submitted that globally and locally, there is a lot of potential for the

large organizations, especially multi- national corporations, to support these objectives by

contributing to the development and welfare of poor countries or communities. This may be

by commencing business by investments thus creating employment opportunities as was the

18 See generally the provisions relating to directors, Companies Act No.7 of 2007 19http://www.un.org/millenniumgoals/pdf/The%20Millennium%20Development%20Goals%20Report%202008.pdf

[20/08/2008]



362

case with the Bata involvement with the Thai Business Initiative in Rural Development in

Thailand20

or providing assistance to rural supplier-communities to improve the raw material

required for production as was done by Unilever in Uttar Pradesh in India21

. It may even be

more philanthropical in nature as could be illustrated by Phillips Van Heusen‘s initiative to

fund educational programs in the highlands of Guatemala in order to support the education

of the indigenous people22

. The idea is to be more vigilant and contribute to the betterment

of the society so that the organization‘s impact on the society becomes a positive one.

In addition, consulting agencies and other monitoring mechanisms should be implemented

and encouraged to monitor CSR projects and advice companies to strategically adopt CSR.

Educating the public sentiment is equally important so that the genuine CSR projects do not

attract skepticism.

In conclusion, it is submitted that the ethical dimension of CSR has been overshadowed by

the emerging new development factors. Although legislation cannot mandate CSR it

significantly requires companies to operate within the parameters and demand compliance

on several core areas. As Cicero has stated,23

―The good of the people is the supreme law‖

and therefore the crucial element is to preserve the ethical flavour while accommodating the

growing global, market and economic forces that drive CSR which authenticates a

responsible corporate citizen.

But how is this legal plunder to be identified quite simply? See if the law takes from some

persons what belongs to them, and gives it to the other persons to whom it does not belong.

See if the law benefits one citizen at the expense of another by doing what the citizen

himself cannot do without committing a crime

- Frederic Bastiat, The Law

20 McIntosh, Leipziger, Jones and Coleman, Corporate Citizenship, Pitman Publishing,(1998) p215 21 Ibid p216 22 ibid p218 23 vide: The Bar Association Law Journal, Vol.XII (2006) p22



363

Interrogation of Witnesses

By Judges in Judicial Proceedings

Not a carte blanche

Mrs. Dilrukshi Dias Wickramasinghe,

President‟s Counsel.1

In the seminal case of R. v. Sussex Justices, ex-parte McCarthy2 Lord Hewart, Lord Chief

Justice of England and Wales stated that:

“It is not merely of some importance, but it is of fundamental importance that

justice should not only be done but should manifestly and undoubtedly be seen

to be done.”

The Sri Lankan judicial system, similar to many common law systems, follows an

adversarial system, where parties to the suit have the primary responsibility of defining and

advancing the dispute which is commonly referred to as ‗party prosecution‘. This is

significantly different to the inquisitorial system or ‗judicial prosecution‘ practiced in civil

law countries, where the judge has a primary responsibility to investigate the dispute. In

both systems, intervention by the judge must be manifestly fair and appear free of bias to an

impartial and informed observer of judicial proceedings.

The judge in an adversarial system is the fact-finder of the dispute. He or she must therefore

remain neutral and passive during the proceedings. The judge must permit both sides equal

opportunity to present their respective cases, dispassionately examine the evidence and

remain uninvolved to avoid reaching a premature decision. However, since it is the duty of

the judge as the fact-finder to determine the dispute based on the evidence, section 165 of

the Evidence Ordinance empowers the judge to put questions or order production of

documents and things during judicial proceedings. Nevertheless, the said power is not

infinite, but is subject to limitations and only enables the judge to clarify facts for the

purpose of eliciting the evidence.

1 LLM (Monash); Former High Court Judge of Fiji Islands; Additional Solicitor General at the Attorney General‘s

Department of Sri Lanka. 2 [1924] 1 KB 256



364

Section 165 of the Evidence Ordinance reads thus:

165. The Judge may, in order to discover or to obtain proper proof of

relevant facts, ask any question he pleases, in any form, at any

time, of any witness, or of the parties, about any fact relevant

or irrelevant; and may order the production of any document

or thing ; and neither the parties nor their agents shall be

entitled to make any objection to any such question or order,

nor, without the leave of the court, to cross-examine any

witness upon any answer given in reply to any such question:

Provided that the judgment must be based upon facts declared

by this Ordinance to be relevant and duly proved:

Provided also that this section shall not authorize any Judge to

compel any witness to answer any question, or to produce any

document, which such witness would be entitled to refuse to

answer or produce under sections 121 to 131 both inclusive, if

the question were asked or the document were called for by the

adverse party; nor shall the Judge ask any question which it

would be improper for any other person to ask under section

148 or 149; nor shall he dispense with primary evidence of any

document, excepting the cases herein before excepted.

A plain construction of the aforesaid section reveals three limbs. Firstly, the power of

questioning the witness; secondly, ordering the witnesses to produce documents and

things; and thirdly, the limitations and parameters within which the aforesaid two

limbs function.

Although the adversarial system as followed in Sri Lanka requires the judge to be a

passive listener and remain neutral during the proceedings, the above section offers

an opportunity to the judge to put questions to witnesses both relevant and irrelevant

in order to ascertain the truth. The statutory provision further enables the judge to

ask questions at any time, in any form as he or she pleases. Moreover, the judge is

permitted to request the production of any document or thing for the discovery of

proof of any relevant fact.

Albeit the apparent wide powers envisaged in section 165 of the Evidence Ordinance,

a surfeit of judicial authorities both local and foreign have interpreted the section by

limiting its scope of questioning by the judges. Additionally, the first proviso of the

section also prohibits the judge from indiscriminately using answers given to

irrelevant questions, by specifying that the judgment must be based upon facts

declared by the Evidence Ordinance to be relevant and duly proved. Judicial

questioning is further limited by the aforesaid second proviso where the judge is



365

bound by the limitations extended in privileged communications set out in section

121 to 131, and section 148 and 149. These limitations exclude questioning on

evidence relating to communications during marriage, affairs of State, official

communications, information as to commission of offences, professional

communications, confidential communications with legal advisors, production of title

deeds, etc. The second proviso restricts questioning on any matter that falls within

the ambit of these limitations.

It could thus be seen that the judgment should be based on relevant facts and duly

proved, the judges interrogation cannot contravene sections 121 to 131 and 148 and

149 and, generally, primary evidence of documents must be given when ordered

production of documents.

Coomaraswamy3 discusses the role of a judge in applying section 165 of the

Evidence Ordinance as follows:

“The functions of a judge, with regard to evidence, have been declared to be

of a three-fold nature:

(a) To exclude everything that is not legitimate evidence; and then when

judgment is given,

(b) To ascertain clearly what the evidence is which he has before him, and

(c) To estimate correctly the probative force of that evidence.”

The Indian Evidence Ordinance has the identical provision and Sarkar discusses the

provision as follows:

―The true meaning, scope and object of the section will be clear from the following

extracts from the speeches and writings of SIR FITZJAMES STEPHEN, the framer

of the Act, and other commentators:

„Passing, however, from the case of English barristers, to the case of

pleaders and vakils and the courts before which they practice, I would

appeal to everyone who has experience of the subject, whether the

observations referred to are not strictly true, and whether the main

provision founded upon it there the provision which empowers the court to

ask what questions it pleases, is not essential to the administration of

justice here. In saying that the Bench and the Bar in England, cases are

fully prepared for trial before they come into court, so that the judge has

nothing to do but to sit still and weigh the evidence produced before him.

In India, in all enormous mass of cases, this neither is nor can be so. It is

absolutely necessary that the judge should not only hear what is put

before him by others, but that he should ascertain by his own inquiries

how the facts actually stand. In order to do this, it will frequently be

3 E.R.S.R. Coomaraswamy, The Law of Evidence Vol II (Book 2) (Stamford Lake Publication, 1989) 863



366

necessary for him to go into matters which are not themselves relevant to

the matters in issue, but may lead to something that is, and it is in order to

arm judges with express authority to do this that s 165, which has been so

much objected to, has been framed‟. [Stephen‘s Speech on 12th

March

1872 when presenting the Report of the Select Committee]”.4

This section has been the subject of analysis wherein it has been explained as

follows:

“This Section is intended to arm the Judge with the most

extensive power possible for the purpose of getting at the truth.

The effect of this Section is that in order to get to the bottom of

the matter before it, the Court will be able to look at and enquire

into every fact whatever” and thus possibly acquire valuable

indicative evidence (v. post) which any lead to other evidence

strictly relevant and admissible. The Court is not, however,

permitted to found its judgment on any but relevant statements,

because such permission would lead to reliance on second-hand

reports, would waste time and open a wide door for fraud. And

the discretion given is exercisable subject to correction by the

Court of Appeal”.5

This article sets out a plethora of authorities on judicial intervention with the expectation

that it would be a point of quick reference for judges presiding in original courts. The author

has intentionally reproduced the obiter dicta or the ratio decidendi of the relevant

paragraphs for easy and quick reference by the judges.

As far as in 1885, in the case of Queen-Empress v Hari Lakshman6 it was held that

„under section 165 of the Indian Evidence Act I of 1872, a Judge has the power of

asking irrelevant questions to a witness, if he does so in order to obtain proof of

relevant facts; but if he asks questions with a view to criminal proceedings being

taken against the witness, the witness is not bound to answer them, and cannot be

punished for not answering them, under Section 179 of the Indian Penal Code (Act

XLV of 1860)‟.

Nagalingam J. in the case of The King V Namasivayam et al.,7 held that ‗although a Judge

has very wide powers of asking any questions he pleases in any form and at any time of any

witness, those powers should not be so used as to afford ground for the legitimate criticism

that the accused persons have not had the benefit of a fair trial‟.

4 S. Sarkar and V. R. Manohar, Sarkar on Evidence (14th edition., Wadhawa and Company Law Publishers, 1993)

2150 5 Sir J. Woodroffe, S. A. Ali and V. K. Rao Sir John Woodroffe and Syed Amir Ali Law of Evidence: Sections 115-167 (18th edition., Butterworths, 2009) 901 6 (1885) 10 Bom. 185 7 (1948) 49 NLR 289



367

In the case of Sabhapathi vs. Huntley8 it was said that where a judge examines a witness

under section 165 of the Evidence Ordinance and the evidence given in answer to the

questions is adverse to either party, leave should be given to that party to cross-examine the

witness upon his answers

In King v. Dharmasena,9 Canekeratne J opined that:

“It is, of course, always proper for a Judge-he has the power and it "is his

duty at times-to put such additional questions to the witnesses as seem to him

desirable to elicit the truth. The part which a Judge ought to take while

witnesses are giving their evidence must, of course, rest with his discretion.

But with the utmost respect to the Judge, it was, I think, unfortunate that he

took so large a part in examining the appellant. Though he was endeavouring

to ascertain the truth, in the manner which at the moment seemed to him most

convenient, there was a tendency to press the appellant on more than one

occasion. The importance and power of his office, and the theory and rule

requiring impartial conduct on his part, make his slightest action of great

weight with the jury. If he takes upon himself the burden of the cross-

examination of the accused, when the Government is represented by

competent counsel, and conducts the examination in a manner hostile to the

accused and suggesting that he is satisfied of the guilt of the accused, as

some of the questions do, the impression would probably be produced on the

minds of the jury that the Judge was of the fixed opinion that the accused

was guilty and should be convicted. This would not be fair to the accused, for

she is entitled to the benefit of the presumption of innocence by both Judge

and jury till her guilt is proved. If the jury is inadvertently led to believe that

the Judge does not regard that presumption, they may also disregard it”.

(Emphasis mine)

In R v Wijedasa et al.,10

Dias S.P.J held that a judge is clearly entitled to put questions to the

witnesses under section 165 of the Evidence Ordinance as long as such questions do not

afford grounds for the legitimate criticism that the accused had not had the benefit of a fair

trial or that unfair or hostile cross-examination of the accused by the trial judge might

amount to a miscarriage of justice. Dias J. further held that ‗a trial judge must be allowed

the utmost freedom to ask questions, provided it is done fairly; and we have neither the

power nor the inclination to ignore either the letter or the spirit of section 165 of the

Evidence Ordinance‟.

8 (1935) 38 NLR 171 9 50 NLR 509 10 52 NLR 29



368

In The Queen v. Hethuhamy,11

Gratiaen J. stated that “although a presiding Judge is

entitled to interrogate a witness for the prosecution, it is generally far more satisfactory to

leave the conduct of the case on any vital point of controversy in the hands of the

prosecuting counsel, who must make his own decision whether or not to apply to the Judge

for permission to cross-examine as an adverse witness a man whom he has advisedly

called”.

In the case of The Queen v Nimalasena De Zoysa,12

it was held that:

“The mere fact that the trial judge has, by availing himself of the power vested in

him by Section 165 of the Evidence Ordinance, put a large number of questions to

a witness is not a ground for quashing a conviction, even if the number of questions

is greater than that put by the prosecution or the defence. To quash the conviction

the Court of Criminal Appeal must be satisfied that the multiplicity of the question

asked by the trial Judge resulted in a miscarriage of justice‖.

Queen v Abeyratne,13

it was held that ―the words „in order to discover or to obtain proper

proof or relevant facts‟ in Section 165 of the Evidence Ordinance place a limitation on the

powers of a judge to ask any question he pleases in any form of any witness or of the parties

to a case”.

In the case of G.W.Perera et al. v Naganathan,14

Silva J. held that: „if the statements to the

Police were produced in terms of Section 165 of the Evidence Ordinance in order to

discover or obtain proper proof of relevant facts, and the Magistrate made use of such

statements which he caused to be produced of his own motion in arriving at his verdict

under Section 190 of the Criminal Procedure Code, acting on such evidence was a flagrant

violation of the provisions of section 122(3) of the Criminal Procedure Code‟.

In The Queen v Sinnathamby,15

in a prosecution for murder, Sansoni J. held that

‗The medical evidence as to the unsound mental condition of the accused was

elicited by the Judge for the first time after the accused himself had given evidence.

The judge closely questioned the accused in such a way as to lead the Jury into the

belief that his evidence was totally unworthy of credit‟.

Whilst ordering the case for retrial, Sansoni J. held that the medical evidence should have

been given before the accused was called to give evidence.16

11 57 NLR 255 12 60 NLR 97 13 (1963) Vol LXIV (part 6) C.L.W. 68 14 66 NLR 438 15 68 NLR 193 16 ibid



369

H.N.G Fernando CJ in the case of Sethuwa et al v. Queen,17

stated that the Judge must not

take on the examination of a prosecution witness in such a manner that the whole of the

evidence incriminating the accused is elicited in answer to questions put by the Judge. In

such a case, the Jury can scarcely resist the impression that the Judge is presenting the

evidence of the witness as being evidence in which the Judge himself has confidence.

G.P.A. Silva SPJ in the case of Senanayake v. De Silva,18

held:

“We shall now address our mind to the criticisms made by counsel in regard

to the questioning of this witness by the Court. While the widest powers in

regard to examination of witnesses are undoubtedly conferred on the Court by

section 165 of the Evidence Ordinance, these powers are not without certain

limitations. There are certain unfortunate circumstances in the particular

facts of this case which in our view bring this case within the scope of these

limitations.

G.P.A Silva SPJ referred to a number of cases in which such limitations exist.19

He further

elaborated that one of the well-recognized limitations of the powers of the Court under this

section is that the Court "must not question the witness in the spirit of beating him down or

encouraging him to give an answer”. The court referred to a number of authorities20

and

concluded that

“While in the present case there would perhaps be room for saying that the

questioning is not quite of this nature, the additional circumstances to which

we shall refer remove any uncertainty on the question whether this was not

a case…”.

In the case of The Queen vs. Mendis Appu21

it was held that powers conferred by section

165 of the Evidence Ordinance are limited and are not meant to be used for the purpose of

discrediting a witness or an accused person.

Subasinghe vs. Jayalath22

and Queen vs. Julis23

also discussed the power of the Judge to

interrogate witnesses and discussed the limitations.

Kulatilake J. in the case Wijeratne Banda vs. State,24

held that the trial judge in order to

discover or to obtain proper proof of relevant facts may ask any question at any time of any

witness or of any person about any fact relevant or irrelevant.

17 72 NLR 573 18 75 NLR 409 pp. 432-434 19 The Queen v David Perera (1962) 66 N.L.R. 553 at 556-7; The Queen v Mendis Appu (1960) 60 C.L.W. 11; Sunil

Chandra Roy v The State (1954) A.I.R. Calcutta 305 p. 317. 20 Monir, Evidence (4th Edition Vol. II) 949. See also Sunil Chandra Boy v. The State 1954 CAL 305 21 (LX vol. C.L.W. 11) 22 69 NLR 121 23 (LXV vol. C.L.W. 89)



370

In the case of Jones v National Coal Board25

which relates to a personal injury claim, both

parties complained in the appeal that they were unable to put their cases properly before the

judge. In this case Lord Denning set out the role of the judge as follows:

“The judicial function of dealing with cases justly in an adversarial system

requires a first instance judge „to hear and determine the issues raised by the

parties, not to conduct an investigation or examination on behalf of society at

large.‟ That does not mean the judge is „a mere umpire to answer the question

„How‟s that?”.

Lord Denning MR further said: „His object, after all, is to find out the truth,

and to do justice according to law; and in the daily pursuit of it the advocate

plays an honourable and necessary role. Was it not Lord Eldon LC who said

in a notable passage that „truth is best discovered by powerful statements on

both sides of the question‟? And Lord Greene MR who explained that justice

is best done by a judge who holds the balance between the contending parties

without himself taking part in their disputations?

. . and „A judge‟s part . . is to hearken to the evidence, only himself asking

questions of witnesses when it is necessary to clear up any point that has been

overlooked or left obscure; to see that the advocates behave themselves

seemly and keep to the rules laid down by law; to exclude irrelevances and

discourage repetition; to make sure by wise intervention that he follows the

points that the advocates are making and can assess their worth; and at the

end to make up his mind where the truth lies. If he goes beyond this, he drops

the mantle of a judge and assumes the role of an advocate; and the change

does not become him well. Lord Chancellor Bacon spoke right when he said

that: „Patience and gravity of hearing is an essential part of justice; and an

over-speaking judge is no well-tuned cymbal.” (Emphasis mine)

In the case of Gunning v R26

it was held that the judge had deprived the defendant of the

opportunity of developing the defence. It was held that ―the judge is not an advocate. Under

the English system…..he is much more like the umpire at a cricket match. He is certainly not

the bowler, whose business is to get the batsman out. In this case it was reported that the

judge asked 165 questions, compared with 172 asked by the defence counsel”.

Kirby ACJ in the case of Galea v Galea27

followed a robust approached and summarized the

following guidelines to determine the extent of intervention by judges in judicial

proceedings. In the words of His Lordship:

24 (1993) SLR 86 25 (1957) 2 QB 55 26 (1980) CA 27 (1990) 19 NSW LR 263 pp. 281-282



371

“1. The test to be applied is whether the excessive judicial questioning or

pejorative comments have created a real danger that the trial was unfair. If

so, the judgment must be set aside.

2. A distinction is drawn between the limits of questioning or comments by

a judge when sitting with a jury and when sitting alone in a civil trial.

Although, there is no relevant distinction, in principle, between the judicial

obligation to ensure a fair trial whatever the constitution of the court,

greater latitude in questioning and comment will be accepted where a judge

is sitting alone. This is because it is conventionally inferred that a trained

judicial officer, who has to find the facts himself or herself, will be more

readily able to correct and allow for preliminary opinions formed before the

final decision is reached.

3. Where a complaint is made of excessive questioning or inappropriate

comment, the appellate court must consider whether such interventions

indicate that a fair trial has been denied to a litigant because the judge has

closed his or her mind to further persuasion, moved into counsel‟s shoes

and “into the perils of self-persuasion”.

4. The decision on whether the point of unfairness has been reached must

be made in the context of the whole trial and in the light of the number,

length, terms and circumstances of the interventions. It is important to draw

a distinction between intervention which suggests that an opinion has been

finally reached which could not be altered by further evidence or argument

and one which is provisional, put forward to test the evidence and to invite

further persuasion.

5. It is also relevant to consider the point at which the judicial interventions

complained of occur. A vigorous interruption early in the trial or in the

examination of a witness may be less readily excused than one at a later

stage where it is designed for the legitimate object referred to in Jones,

namely of permitting the judge to better comprehend the issues and to weigh

the evidence of the witness concerned. By the same token, the judge does

not know what is in counsel‟s brief and the strength of cross-examination

may be destroyed if a judge, in a desire to get to what seems crucial, at any

stage prematurely intervenes by putting questions.

6. The general rules for conduct of a trial and the general expression of the



372

respective functions of judge and advocate do not change. But there is no

unchanging formulation of them. Thus, even since [Jones in 1957 and the New

South Wales case of Tousek v Bernat in 1959], at least in Australia, in this

jurisdiction and in civil trials, it has become more common for judges to take

an active part in the conduct of cases than was hitherto conventional. In

part, this change is a response to the growth of litigation and the greater

pressure of court lists. In part, it reflects an increase in specialization of the

judiciary and in the legal profession. In part, it arises from a growing

appreciation that a silent judge may sometimes occasion an injustice by

failing to reveal opinions which the party affected then has no opportunity to

correct or modify. In part, it is simply a reflection of the heightened

willingness of judges to take greater control of proceedings for the avoidance

of the injustices that can sometimes occur from undue delay or unnecessary

prolongation of trials deriving in part from new and different arrangements

for legal aid. The conduct of criminal trials, particularly with a jury, remains

subject to different and more stringent requirements.” (Emphasis mine)

In the aforesaid judgement Priestley and Meagher JJA agreed with the judgement however,

Meagher JA stated that:

„Whereas in the present case, a judge is confronted by a witness who is

both deceitful and evasive, there is no principle that he is not at liberty to

express his measured displeasure at being trifled with. There is no

principle that he must endure the ordeal with ladylike serenity. Indeed in

Vakauta (at 611; 635; 68, 939) Brennan, Deane and Gaudron JJ state

that to maintain a total silence in such situations „would not represent a

model to be emulated‟. More than that, a timely intervention serves the

interest of the party leading such evidence, as it provides him with a

chance to mend the damage already inflicted. In my view, if a reasonable

disinterested bystander had heard the passage at arms complained of in

the present case he would not have reasonably apprehended that the trial

judge was prejudiced, he would only have noted that an exceptionally

irritating witness had eventually succeeded in irritating the judge‟.28

The 2004 Privy Council decision in the Cayman island case of Luis Roberto Demarco

Almeida v. Opportunity Equity Partners Ltd,29

also sets out bounds of judicial intervention.

The case entailed inter alia an action for damages brought by a dismissed employee. The

litigation involved allegations of bad faith and fraud. The judgment was entered in favour of

the defendant, where the trial judge concluded that evidence was found to be ―manufactured

28(1990) 19 NSW LR 263 pp. 283-284 29 Privy Council Appeal No 48 of 2004



373

and false in all material respects‖. The plaintiff sought a new trial on the basis of bias,

alleging predominantly the judge‘s „excessive interventions during the examination of the

witnesses and usurpation of a counsel‟s role during oral evidence‟. (Emphasis mine)

Although the Court of Appeal rejected the allegation of bias, it ordered a re-trial on the basis

that ‗an informed and impartial observer could conclude that a fundamental failure of justice

had in fact occurred. Privy Council however setting aside the Court of Appeal‘s Order held

that “judge was seriously at fault in the way he conducted this trial” (Emphasis mine) and

found fault with the judge's objectionable interventions during cross-examination,

exaggerated and unnecessary references to forgery and unreasonable conclusions

about the plaintiff's evidence, but set aside the order of the Court of Appeal on the basis

that the case had no merit and that was the cause for the failure of the case and not due to the

fact of an unfair trial by the judge. (Emphasis mine)

In the above case the Privy Council also made the following observations:

“.................. The Court of Appeal rejected the judge‟s findings, it seems

[877-879] because the judge unwisely referred to “false documents” [497]

and again (still more unwisely) to “forgery and uttering false documents”

[511]. He would have been well advised to have limited his conclusion to

stating that Ms Dantas had, in consultation with her brother and with the

assistance of some of Opportunity‟s employees, embarked on a deceitful

plan to make Mr Demarco think that he owned a $500,000 investment in the

Opportunity Fund, whereas in fact it remained under the control of Ms

Dantas and her brother. ..........”30

(Emphasis mine)

“The judge was however found by the Court of Appeal to have been

responsible for a “fundamental failure of justice” [905]. Like the Court of

Appeal their Lordships have deferred this issue until the end of their advice,

but they consider that it is the most important issue in the appeal, and it

overshadows all the other issues. The parties‟ right to a fair trial is so

fundamental that any conclusion as to the judge‟s findings of fact reached

without regard to the fairness of the trial can only be provisional and

precarious”.31

(Emphasis mine)

However, the Privy Council held that the attitude towards judicial intervention has changed

a good deal since the decision of Lord Denning in 1957 in Jones (Supra), and the guidelines

set out by Kirby A-CJ in 1990 the case of Galea (Supra).

30 Ibid ¶ 80 31 Ibid ¶ 89



374

More recently, in the case of Michel v. The Queen32

Lord Brown, giving the report of the

Privy Council, observed of the chairman‘s role as follows:

“Of course he can clear up ambiguities. Of course he can clarify the answers

being given. But he should be seeking to promote the orderly elicitation of the

evidence, not needlessly interrupting its flow. He must not cross-examine

witnesses, especially not during evidence-in-chief. He must not appear hostile

to witnesses, least of all the defendant. He must not belittle or denigrate the

defence case. He must not be sarcastic or snide. He must not comment on the

evidence while it is being given. And above all he must not make obvious to all

his own profound disbelief in the defence being advanced.”

Sarkar makes a comparative analysis of English Law and Indian Law and states that:

“Judge‟s Power to Interrogate Witness [English and Indian Law].-

Although this section appears to give the judge a somewhat wider latitude

than similar powers under the English Law, the provisions of this section

are in substantial agreement with that law. The judge has a discretionary

power of putting to witnesses such questions as he thinks the interests of

justice require”33

Further, Sarkar makes reference to a number of cases which enumerates the power

of a judge to interrogate a witness.34

Sarkar opines that “questions by a judge may be based, not only on matters arising

in the case, but on his own local or scientific knowledge”35

and refers to a number

of cases as to the desirable limits of judicial intervention in the examination and

cross-examination of witnesses.36

Following are few more foreign cases where the intervention by judges‘ were discussed:

R v Inner West London Coroner ex p Dallaglio37

The coroner enquiring

into the Marchioness disaster gave a press interview in which he described a

relative of one victim as "unhinged by grief" and others as "mentally unwell".

32 (2009) UKPC 41 33 Sarkar op. cit. 2153 34 Middleton v Barned (1849) 18 LJ Ex 433. See also R v Hopper (1915) 2 KB 431; R v Waston 6 C&P 653 R v

Remnant Rus & Rly 136 35 Sarkar op. cit. 2153. See also R v Antrim (1895) 2 IR 603; Shortt v Robinson 63 JP 295 36 Yuill v Y. (1945) 1 All ER 183 CA; Jones v. National Coal Board (1957) 2 All ER 155 CA. 37 (1994) 4 All ER 139, CA

http://regulatorylaw.co.uk/cgi-bin/getcitation.py?q=%5B2009%5D%20UKPC%2041



375

These and other relatives sought judicial review of the coroner's decision to

continue with the inquest, and it was held that the coroner's comments had

been injudicious, insensitive and gratuitously insulting giving rise to an

appearance of bias.

Locabail v Bayfield Properties38

. Guidance was laid down as to the type of

interest that might disqualify a judge, magistrate or juror from hearing a

particular case. It was held that there should be automatic disqualification if

any pecuniary interest exists. The question is not whether the judge has some

link with a party involved in a case before him, but whether the outcome of

that case could, realistically, affect the judge's interest. It was further held that

a judge should not disqualify him/herself because of religion, ethnic or

national origin, gender, age, class, means or sexual orientation of the judge,

social or educational, or service or employment, background or history, nor on

his political associations or membership of social or sporting or charitable

bodies.

R v Marylebone Magistrates' Court ex p Perry 39

The defendant was guilty

of disorderly conduct after an anti-apartheid demonstration. At his trial he

gave evidence which included a long denunciation of the evils of apartheid;

after 15 minutes the magistrate said he intended to "improve the shining hour"

with some other work, and spent the next ten minutes signing warrants. It was

held that there is a fundamental judicial duty for the court to give the case in

hand its undivided attention.

In 1852, the case of Dimes v Grand Junction Canal40

gave an

interpretation of judges‘ impartiality. Lord Cottenham (LC) held a substantial

block of shares in a canal company that brought a case in equity against a

landowner. His holding was then discovered and an application made to have

the Chancellor's decision set aside. The court held that although there was no

suggestion that the Lord Chancellor had in fact been influenced by his interest

in the company, no case should be decided by a judge with a financial interest

in the outcome. The Chancellor's orders would therefore be set aside as such,

but those of the Vice-Chancellor (to the same effect) were confirmed.

The Judges ―track record‖ of antipathy towards the defendant‘s expert

witnesses in personal injury cases, and his attitude towards them in the

38 (2000) 1 All ER 65 39 (1992) Crim LR 514, DC 40 (1852) HL



376

particular case under appeal may warrant a retrial.41

It has been held that in

some instances, there may be no ―track record‖ but a judge may intervene in a

way that appears to show impatience, incredulity or hostility to one party or

his witnesses42

In Heffer v Tiffin Green,43

was set aside on the grounds that the judge has

(in Henry LJ‘s words), decided the case “without sufficient regard being paid

to the building blocks of the reasoned judicial process”.

In Jones v National Coal Board44

it was held that a retrial would have to be

ordered because the judge misconducted himself at trial by over-frequent

interventions and usurpation of the role of counsel:

The statutory provisions set out in section 165 of the Evidence Ordinance permit judges to

question witnesses and accused to elicit truth during judicial proceedings and order the

production of documents and things subject to the limitations stated therein. In essence the

judicial authorities safely conclude that the judge‘s right to intervention has limitations, and

the Judge should not consider that they have been given a carte blanche where the rules of

the evidence could be ignored when exercising the powers vested under section 165 of the

Evidence Ordinance.

The law is an adroit mixture of customs that are beneficial to society, and could be followed

even if no law existed, and others that are of advantage to a ruling minority, but harmful to

the masses of men, and can be enforced on them only by terror.

- Peter Kroptokin, Words of a Rebel

41 Vakauta v Kelly (1989) 167 CLR 568 42 Galea v Galea (1990) 19 NSW LR 263 43 (1998) All ER (D) 750 44 (1957) 2 QB 55



377

The Law of Public Nuisance

In a Nutshell

Geethani Wijesinghe (LLM Colombo)

District Judge, Mahiyangana

History of the Law of Public Nuisance runs back to couple of centuries. It is initially used

to protect the public health and the ordinary comfort and welfare of the people. Today it has

a new dimension as a popular tool of protecting the environment.

Law of Public Nuisance is widely used in Sri Lanka and in other South Asian countries,

especially in India in protecting human health and environment. Therefore, it is worthwhile

to discuss the salient features and the applicability of this law.

1. What is Public Nuisance?

The term ‗Public Nuisance‘ is defined as an offence in section 261 of the Penal Code of Sri

Lanka.

The above section defines public nuisance as any act, or an illegal omission, which causes

any common injury, danger or annoyance to the public or to the people in general who dwell

or occupy property in the vicinity, or which must necessarily cause injury, obstruction,

danger or annoyance to persons who may have occasion to use any public right.

This is the penal section under which and anybody who causes a public nuisance could be

punished. However, the public who is subjected to the injury, danger or annoyance by such

nuisance needs a better remedy than punishing the offender. In that context, Chapter IX of

the Code of Criminal Procedure Act No.15 of 1979 comes into the picture. Chapter IX (from

section 98 to 106) of the Code of Criminal Procedure Act provides for remedies for public

nuisance by empowering Magistrates to abate such nuisances.



378

There are two kinds of nuisances namely Private Nuisance and Public Nuisance. As this

article focuses on the aspects of Public Nuisance, it is important to know the difference

between the two kinds.

Private Nuisance constitutes a tort or civil wrong which affects a particular individual while

Public Nuisance is considered as a criminal offence which affects a community or public at

large. The following authorities are important in understanding the difference between

private and public nuisance.

1.1 Barking of a dog which affects a single family is not a Public Nuisance

Nair vs. Costa (28 NLR 385)

Appellant is the owner of a dog and has been convicted under section 283 of the Penal Code

with committing a public nuisance. He was charged for failing to take necessary precautions

to prevent his dog barking continuously at night and thereby disturbing the repose of the

public who dwell or occupy property in the vicinity, and causing annoyance to them. The

evidence showed that the only person who complained of the barking was the Police

Magistrate of Matale.

It was held by Dalton J, that the Magistrate who tried the case has not directed his mind to

the essential difference between a private nuisance and a nuisance to the public or the people

in general as set is out in section 261.1

It was further held that a in a similar case reported long ago, known as ‗The Dog Case”

(1872 (P. C, Colombo, 3,901, (1872) Grenier's Reports, p. 25- Creasy C. J) that it is

necessary that the nuisance should be such as to annoy tire neighboring community

generally and not merely some particular person. In that case the plaint alleged that the

howling of the defendant's dog disturbed the repose of the public, but the proof adduced

established that the inmates of one house only were disturbed. That, it was held, was

insufficient to support the conviction.2

In De Silva v. De Silva. (1915) 1 (C.W.R.) 98, the Magistrate had ordered the removal of a

coconut tree as likely to fall and cause injury to persons living or carrying on business in the

neighborhood or passing by. De Sampayo J. on the same reasoning, held that, the section

provided for a case in which the part of the public living in the place where the nuisance

exists are generally affected, and that a single man and his family who complain against the

next door neighbor are not within the contemplation of the section.3

1 28 NLR 385 at pg 386 2 ibid 3 ibid



379

1.2 A tree standing on a neighbour’s land which is likely to fall is not a Public

Nuisance.

Sinna Gura vs. Inspector of Police, karawanella (61 NLR 186)

The evidence in this case showed that the damage which was likely to be caused by the Jak

tree in question would be confined to the complainant and the members of his family.

It was held by Sinnetamby J. that the section 105 of the Criminal Procedure Code

(corresponding section in the old Criminal Procedure Code) applies to public, and not to

private, nuisances. A Magistrate, therefore, is not entitled to make an order under that

section in respect of a tree standing on a neighbour's land although it is likely to fall down

and damage buildings of the complainant and injure members of his family.4

1.3 Nuisance affecting one household would not amount to a Public

Nuisance.

Somapala Fernando vs. S.C. Fernando 2002 (3) SLR 389

The Complainant complained that the Respondent is about to construct a brick kiln close to

his house, and that if constructed it would emit smoke and pose a threat to the health of the

inmates of the house. And the smoke would cause loss of his property and the burning of

tyres close to his house would cause pollution of the environment. The Magistrate's Court

discharged the Respondent after an inquiry. The High Court acting in revision quashed the

order of the Magistrate's Court and directed the Magistrate to order the Respondent to

demolish or terminate operations, and remove the brick kiln.

It was held that the evidence led in the Magistrate's Court at best goes to prove a private

nuisance as opposed to a public nuisance, the only witnesses being the husband and wife.5

2. Applicability of the term ‘Public’

The definition under section 261 of the Penal Code says that the acts which are mentioned in

the section should affect the ‗public‘ or ‗the people in general who dwell or occupy property

in the vicinity‘. This reflects that the nuisance could be one which affects the public at large

or a particular community in the vicinity, which is the common scenario. Section 98 (1) of

the Code of Criminal Procedure Act stipulates the instances where a Public Nuisance could

arise and both the terms ‗public‘ and ‗community‘ used therein as well. Section 98 (4)

further clarifies that a ‗public place‘ includes property belongs to the State, a corporation or

vested in any public officer or Department of state for public purposes and ground left

unoccupied for sanitary and recreative purposes.

4 61 NLR 186 at p.187 5 2002 (3) SLR 389 at p.392



380

2.1 ‘Public’ does not always mean public at large. Even the community in the

vicinity who affects by the nuisance can effectively get the remedy under

these provisions

Saram vs. Seneviratne (21 NLR 190)

The Appellant is the proprietor of an oil store at Charlce Place, Colepity, where coopering is

carried on during the day and sometimes also in the night. The noise created by the constant

hammering on barrels is calculated to injure the health and physical comfort of the person's

resident in the neighborhood. Neighbors sought relief under chapter IX of the Criminal

Procedure Code and the Magistrate ordered the appellant to abate the nuisance.

It was decided by De Sampayo J, that a nuisance which affects only those who living in the

neighborhood and not necessarily the public in general, may be the subject of proceedings

under this chapter.6

The relevant sections of the Code of Criminal Procedure Act reads as that any trade or

occupation or the keeping of any goods or merchandise should by reason of its being

injurious to the health or physical comfort of the community be suppressed or prohibited.

Though in some paragraphs of the same section refers to the word ‗public' here it speaks

about the community.

2.2 Placing of a bag of rice alongside the public road is not a Public Nuisance

Lewis vs. Meera Lebbe (3 NLR 138)

A person, who was unloading a boat laden with rice in bags, placed a bag of rice on the road

alongside the canal. The plaintiff's horse and carriage came along the road at a walking pace.

Just as they came near the spot where the bag was lying, the defendant tried to pull the bag

further away from the wheel track, and this act was supposed to have caused the horse to

shy. The horse turned suddenly round, the driver fell off the box, and the horse, being thus

left uncontrolled, ran away and damaged the carriage and harness.

Plaintiff claimed that this is an act of a public nuisance and negligence. Bonser, CJ held that

the mere placing of a bag of rice by the roadside is in itself an unreasonable user of the road,

or necessarily a public nuisance.7

3. Procedure stipulated under Chapter IX of the Code of

Criminal Procedure Act No.15 of 1979

While section 261 of the Penal Code broadly defines what a Public Nuisance is, section

98(1) of the Code of Criminal procedure Act (hereinafter referred to as the Code) describes

6 21 NLR 190 at pg 191 7 3 NLR 138 at pg 140



381

what the types of activities which amounts to public nuisance. This section consists of five

sub sections and a Magistrate should see whether the information he receives falls within the

ambit of such five categories. Having considered so, the Magistrate is empowered to issue a

conditional order requiring the person who is causing such public nuisance to abate the

same. The nature of the conditional orders is further specified in the same section.

Once a conditional order is made, it should be served on the person against whom the order

was made, in the manner in which the summons is being served. Under section 99 (2), there

are provisions to the effect that a copy of the order to be posted in such a place as the court

may consider fittest for conveying information to such person, in the event the conditional

order cannot be served.

Upon receiving the conditional order the person against whom the order is made has two

options to be followed.

a. Comply with the conditions mentioned in the order, or

b. Appear before the Magistrate and move to have the order set aside or modified.

It is a misconception that the person who received the conditional order, has no option but to

comply with it forthwith. If he intends to move court to set aside or to modify the order, he

does not have to comply with the conditions until the conditional order is made absolute at

the end of the inquiry. If the Magistrate considers that the immediate measures should be

taken to abate the public nuisance, he is empowered under section 104 of the Code, to issue

an injunction forthwith against whom the order was made.

Upon receiving the conditional order, if such person, within the stipulated time moves court

to have the order set aside or modified, the Magistrate should fix the matter for inquiry.

After a due inquiry, in the event the conditional order make absolute, the Magistrate should

give notice to such person requiring him to comply with the conditions of the order. A

person shall be punishable under section 185 of the Penal Code in the following instances;

a. Having receiving the conditional order and without complying it, if he fails to

appear before court and moves to have the order set aside or modified,

b. If he fails to comply with the order once it is made absolute.

This is a very effective provision where the industries are involved in polluting the

environment and thereby creating public nuisances. Section 100 (2) (1) of the Code provides

that when such person is a corporate body, every Director is liable for the penalty under

section 185 of the Penal Code, unless he proves that such default is not due to an act or

omission on his part.

When the notice of the absolute order was served on a person who is creating a public

nuisance and if he fails to perform required acts within the stipulated time frame, the



382

Magistrate is empowered by section 103 of the Code to cause it to be performed and recover

the cost of performing from such person. Magistrate is further empowered to order any

person not to repeat or continue a public nuisance under section 105 of the Code.

4. Important information and relevant authorities to be

considered in dispensing justice under the law of Public

Nuisance.

4.1 Can a Magistrate receive information by his own senses? Yes

Forest v. Leefe (13 NLR 119)

The Respondent was Messrs. Clark, Spence & Co., Galle who is carrying out coopering

operations in the vicinity of the Magistrate‘s Court, Galle, making it impossible for the

Magistrate, Lawyers, the staff and the witnesses to hear each other in court proceedings.

Magistrate initiated the proceedings of the public nuisance and the case was heard by

another Magistrate.

It was argued by the Respondent that the procedure is irregular as the Magistrate himself has

initiated the proceedings. Middleton J held, that a public nuisance as described in section

261 of the Penal Code is an offence under the Code, and this would enable the Magistrate to

act on his own knowledge or suspicion under section 148 (c), and that no objection to his

obtaining information direct through his own sense of hearing of the fact of its presumptive

existence and acting thereon under section 105 and making a conditional order.8

4.2 When it is prayed for a removal of an obstruction from a public place,

first it should be proved that the place is ‘public'

Sandrasegra vs. Sinnatamby (25 NLR 139)

A well was sunk about forty years ago in the outer courtyard of a Hindu temple where the

people of the Mukkuwa caste worshipped. Christian Mukkuwas had also drawn water from

the well without any objection during this period. Later the Hindu Mukkuwas refused to

allow the Christian Mukkuwas to draw water from the well, and enclosed the well with a

fence. A riot took place, and the fence was pulled down. It was re-erected by the Hindus.

The Manager applied to Court for a conditional order under section 105 of the Criminal

Procedure Code that the obstruction be removed, and that the well be thrown open for public

use until the Hindu Mukkuwas establish their exclusive right to the well.

8 13 NLR 119 at pg 124



383

It was held by Jayawardene A.J, that under section 105 it was essential that the person

asking for an order should establish that the place from which the obstruction is to be

removed is a public place.9 Christian Mukkuwas were failed in proving the well is a public

place by grant executed according to the law, by immemorial usage or by dedication

otherwise than by Deed.

4.3 Particular trade and the place should be specified in the order

Cader Saibo vs. Branha ( 2 NLR 302)

Oder issued by the Magistrate in this case states that ‗to suppress or remove the tannery

within fifteen days‘

It was held by the Lawrie J. that an order by a Police Magistrate to suppress a public

nuisance must specify the particular trade or occupation, and the place in which it is carried

on10

and that it has been made to appear to the Magistrate that the trade is injurious to public

health or comfort for causes stated.11

4.4 Conditional order should specify the enactment under which it is made;

but it will not necessarily invalidate the proceedings

In the Forest vs. Leefe it was argued that the conditional order, which was afterwards made

absolute, is bad on the face of it. Order reads as follows;

‗Whereas it has been made to appear to me that you are carrying on, as Manager of Messrs.

Clark, Spence & Co., Galle, the trade or occupation of coopering, and the noise proceeding

from the coopering yard seriously interferes with the business of this Court, it being

frequently impossible to hear what is being said.‘

It does not state the enactment under which it is made. It was held by Hutchinson, CJ that it

is, of course, irregular and that it should have followed the words of the enactment by

alleging that the coopering is injurious to the physical comfort of the community.12

However, it was decided that the judgment of the magistrate should not be set aside due to

this irregularity as it does not warrant any failure of justice. It was further held that the

appellant had ample notice what the complaint against him was and he made no objection to

the form of the order then or in his petition of appeal and therefore this objection should not

prevail now.13

9 25 NLR 139 at pg 142 10 2 NLR 302 at pg 302 11 2 NLR 302 at pg 303 12 13 NLR 119 at pg 123 13 ibid



384

4.5 Respondent has the right to begin at the inquiry

Greena Fernando vs. Teckla saparamadu (1990) 1 SLR 270

The complainant filed a report in terms of section 98(1), complaining that the Respondents

obstructed a water course that went across a road and their respective gardens. Thereupon

the learned Magistrate made a conditional order against respondents not to interfere with the

watercourse and to allow it to take its original course. One Respondent sought to have the

order set aside in terms of section 98(2) of the Code of Criminal Procedure Act. The learned

Magistrate having taken evidence at the inquiry, made the conditional order absolute.

The Respondent appealed on the sole ground that the Magistrate had misdirected himself on

the question as to which party should "begin" in the proceedings under section 101(1). The

Magistrate had made order that the Respondent should begin.

It was held by P.R.P. Perera J. that on a consideration of the relevant provisions and the

scheme of the Code of Criminal Procedure Act, No. 15 of 1979, it would appear to be clear

that the party who moves to have the order set aside or modified must in the first instance

adduce evidence to show that the order is not reasonable and proper.14

4.6 It is irregular to hold an inquiry without issuing a conditional order at the

first instance

Elal Jayantha vs. Officeri- in- Charge, Police Station, Panadura (1986) 1 SLR 334

On receiving a report by Police that appellant was committing a nuisance to the neighbours

by working a metal crushing machine which emitted a deafening noise and dust carrying

particles of metal thus creating a health hazard, the Magistrate held an inquiry and made a

finding that in fact a nuisance had been created. Upon receiving the information Magistrate

first issued notice on both parties and held an inquiry thereafter.

Seneviratne J. held that it is quite clear that the Chap. IX, under which this report was made

to Court required the Magistrate to preliminarily satisfy himself in terms of section 98(1) of

the Code, and then to make a conditional order. After such conditional order is made section

98(2) operates.15

4.7 Burden of proof of the Public Nuisance lies with the complainant

Walahenage Kularatne vs. Wipula Dharmadasa (Weligama Metal Quarry Case)

CA (PHC) No. 153/97- Decided on - 04/05/2001

14 (1990) 1 SLR 270 at p 274 15 (1986) 1 SLR 334 at p 336



385

Proceedings were instituted on an information report filed in the Magistrate Court under the

section 98 of the Code of Criminal Procedure Act. It was alleged that the quarrying

operations carried by the Respondent is injurious to the health or physical comfort of the

community. The Magistrate made a conditional order requiring the Respondent to

suppress/remove the quarrying operations acting under section 104 (1). After an inquiry the

conditional order was made absolute.

The Respondent thereupon, sought to revise the said order before the Provincial High Court

and the High Court Judge set aside the Order of the Magistrate.

Having aggrieved by the said order the Complainant appealed to the Court of Appeal. It was

argued before the Court of Appeal that the order of the learned High Court Judge was

erroneous for the reason that he has placed the burden of proving the public nuisance on the

Complainant when in terms of Section 98 (2) the burden is on the Respondent.

It was held by Jayasinghe J. that in the final order the learned Magistrate has to consider the

entire case in the light of the evidence placed by both the Appellants and the Respondent;

both at the stage the conditional order is made and evaluation of evidence before final order

and has to decide whether the acts complained of constitute a Public Nuisance. To do this he

has to have in mind the overall burden cast on the Appellant. (Complainant)

4.8 When a person asserts a bona fide claim to the property as private, an

opportunity should be given to prove the same

Hendirick Mendis vs. Sri Chandrasekera Mudliyar (12 NLR 33)

This is an appeal against an order made absolute for the removal of an obstruction to a road.

The order seems to have been intended to be made under section 105 of the Criminal

Procedure Code. There was no strong evidence to support the findings that the road is a

public way.

The appellant's objections are that he made a reasonable claim in good faith that the road is

his private property, over which the public have no rights.

It was held by Hutchinson, CJ that this is eminently a case in which the appellant should

have been given an opportunity of bringing an action against the man who is asserting his

right to use the road; in that action the question can be tried whether the defendant has a

private right, or whether he has a right as a member of the public, or whether he has any

right at all.‘ Therefore it was decided that the Magistrate ought to have given him an

opportunity of proving that claim by a civil action; and also that the road is one which is or

may be lawfully used by the public, which was chiefly directly to the question whether the

road was a public road or not.16

16 12 NLR 33 at pg 34



386

5. Selected authorities on the nature of evidence of a

Public Nuisance

5.1 Disturbing noise is sufficient evidence of injurious to the health of people.

In Forest vs. Leefe, it was decided that existence of a noise which, in witnesses‘ opinion, is

a nuisance to those having duties to perform in a public Court and prevent the hearing of the

proceedings, is sufficient to show that their physical comfort is interfered with and injured.

It affects the comfort of all who have business to transact in the public Police Court, and this

is sufficient evidence of its injury to the community in general.17

5.2 In the case of a nuisance from smells, it is sufficient to prove that they are

offensive to the senses

Held in R. v. Neil [ 2 C. & P. 435.]18

5.3 Emission of noise could be a public nuisance

Al Haj M.T.M. Ashik and Four Others, trustees of Kapuwatta Mohideen Jumma Mosque,

Denipitiya weligama vs. R.P.S. Bandula, OIC Weligama (SCFR Application No. 38/2005)

Decided on – 9/11/ 2007

A Fundamental Rights Application was instituted by the Trustees of the Kapuwatta

Mohideen Jumma Mosque complaining that the Weligama police has imposed certain

restrictions on use of loudspeakers and had not imposed such restrictions on two other

mosques in the area.

It was held by Sarath N. Silva CJ, among other findings, that the emission of noise by the

use of amplifiers, loudspeakers or other equipments or appliances which caused

annoyingness to the public or to the people in general who dwell or occupy property in the

vicinity be considered a public nuisance in terms of section 261 of the penal code and that

the police should entertain complaints and take appropriate action for the abatement of such

public nuisance.

17 13 NLR 119 at pg 124 18 13 NLR 119 at pg 125



387

6. Possible invalid defences taken up in Public Nuisance

cases

6.1 Particular act is being done for a long time, and the community settled in

the vicinity at a later stage

Forest vs. Leefe (13 NLR 119)

It was argued in this case for the Respondent that where a thing has been done for a great

many years, a right to go on doing it is acquired, even though it may have become a

nuisance, and that if people then go and live within reach of it, they must put up with it.

Hutchinson, CJ held that it is not the law that a man can by long continuance of his practice

acquire a right to carry on a business in such a way as to be a public nuisance. If the place

where he carried it on was at first surrounded by land on which there were no dwellings, but

houses gradually approach it so that it becomes a nuisance to the inhabitants, they have a

tight to have it abated. He cannot by making injurious noises or smells for a long time

deprive the public of the right to live peaceably and comfortably on the land near him. The

doctrine that a man who " goes to " a nuisance has no legal right to have it abated is not now

accepted; the only question is whether or not the thing complained of is a nuisance.19

6.2 Bona fide claim by the Respondent

It is argued in the same case (Forest vs. Leefe) that the Appellant set up a bona fide claim of

right, and so the Magistrate's jurisdiction was ousted. It was held that a man cannot set up a

bona fide claim of right to commit a public nuisance, unless he is empowered by statute to

do so.20

6.3 A public nuisance is not excused on the ground that it causes some

convenience or advantage

This is specifically mentioned in section 261 of the Penal Code and an accepted principle in

the law of public nuisance.

6.4 Do the provisions of National Environmental Act oust the jurisdiction of a

Magistrate acting under section 98 of the Criminal procedure Code? No

This is an invalid defence which is taken up by Respondents often in the Magistrate‘s Courts

in respect of trade or industries which possess environmental Protection Licenses. The

Judgment of Keangnam Enterprises Ltd vs. Abeysinghe and Others (1994) 2 SLR 271, is

used to substantiate the above point of law, which contains a misleading head note on the

19 13 NLR 119at pg 122 & 123 20 13 NLR 119at pg 123



388

Law Report. The relevant portion of the head note of the Sri Lanka Law Report reads as

follows;

‗If the Petitioner-Company had the Environmental Protection Licence at the time when the

Informant-Respondents complained to the Magistrates' Court, then the Magistrate would

have had no jurisdiction to entertain and determine the application (section 29 of the

National Environmental Act). As the Petitioner-Company has the licence now it can make

the appropriate application to the Magistrate.‘21

But a careful reading of the contents of the judgment would reveal that Ananda Grero J. was

not of the view that National Environmental Act ousts the jurisdiction conferred on the

Magistrate under section 98 of the Code.

The Respondent Company had established a metal quarry and the Informant filed papers in

the Magistrate's Court complaining of a public nuisance created by the the operation of the

said quarry, and sought reliefs under Sections 98(1) and 104(1) of the Code of Criminal

Procedure Act. The learned Magistrate granted an injunction restraining the operation of the

quarry and also entered a conditional order for the removal of the public nuisance caused by

the said quarry.

Thereafter the Respondent-Company made an application in revision to the Court of Appeal

and the main argument was that the Magistrate had no jurisdiction to make any order under

Chapter IX of the Code of Criminal Procedure Act in view of the provisions of the National

Environmental Act.

It is mandatory to obtain a license from the Central Environmental Authority under the

provisions of Section 23(A) of the National Environmental Act in order to carry out

operations of the quarry in question. But no license has been obtained by the Company when

it commenced of its operations.

Though the Respondent Company was without a license at the time when the case was filed

and argued before the Magistrate‘s Court, they have produced a License in the cause of the

argument before the Court of Appeal. Therefore the main issue which had been discussed in

the case was the implications of not having a license at the commencement of the

operations. That is why the court has decided that if the Respondent had a license when they

appeared before Magistrate, they could have invoked relief by using the License. It does not

mean that the Magistrate does not have jurisdiction to hear a case under section 98 of the

Code of Criminal Procedure Act. The said view is reflected from the following quotation

from the Judgment.

‗This Court is of the view that in order to invoke the provisions of the Act (National

Environmental Act), the Petitioner-Company should possess a license granted by the

Authority. It is only the license granted by the Authority in terms of the Act which paves the

21 (1994) 2 SLR 271 at pg 271



389

way to the Petitioner-Company to rely upon the provisions of the Act, when it appeared

before the learned Magistrate‘22…..‘If the Petitioner-Company had the licence granted by

the Authority at the time the Informant-Respondents made their application to the

Magistrate's Court, and at the time the learned Magistrate made his orders, and when

submissions were made on behalf of the Petitioner-Company that the learned Magistrate had

no jurisdiction to entertain and make a determination on such application, then it could be

held that the Petitioner-Company was entitled to invoke or rely upon the provisions of

the Act; but not otherwise.(emphasis added) In the circumstances, it could not be held

that the learned Magistrate had no jurisdiction (emphasis added) to entertain and make

orders under Chapter IX of the Code in view of the provisions of the Act; and more

particularly in view of Section 29 of the Act.‘23

Court further held that even in the instance that the company has the license and if

conditions are violated and such violation becomes a nuisance to the people living in the

neighborhood, it would then be possible for such people to make an application under the

provisions of Chapter IX of the Code to abate such nuisance.24

However, this confusing situation had been cleared by the following subsequent judgments

by the Court of Appeal, and there is no ambiguity on the point, at present.

R. Premasiri Weerasekera and four others vs. Keangnam Enterprises Limited - Court of

appeal case No. CA (PHC) APN No. 40/2004- Decided on -26th

May 2009

The Respondent has established a metal quarry and the Petitioners complained of a public

nuisance caused by the activity of the said quarry under section 98 (1) of the Code of

Criminal Procedure Act. After receiving such information, the Magistrate issued a

conditional order abating the operations of the quarry. While complying with the order, the

Respondent raised a preliminary objection quoting the decision of Keangnam vs.

Abeysinghe contending that the Magistrate has no jurisdiction as the company has obtained

an Environmental Protection License. The Magistrate over-ruled the preliminary objection

and the Respondent sought relief from the High Court and got the order of the Magistrate

quashed. Thereafter the Petitioners moved the Court of Appeal in revision against the order

of the high Court.

Anil Gunaratne J. held that the only way in which the jurisdiction of the Magistrate could be

ousted is to include clear, specific provisions to oust such jurisdiction. One cannot by

reading section 29 of the National Environmental Act conclude that the Magistrate‘s

jurisdiction has been ousted. It is further held that there is no inconsistency or repugnancy

between the provisions of the code of Criminal Procedure pertaining to nuisance and of the

National Environmental Act. The Code is geared to remove or abate nuisances whilst the

National Environmental Act seeks to control pollution and noise.

22 (1994) 2 SLR 271at pg 280 23 ibid 24 (1994) 2 SLR 271at pg 281



390

Singalanka Standards Chemicals Limited vs. Thalangama Appuhamilage Sirisena and

others – CA 85/98 Decided on- 01/10/2009

Similar objection was taken by a Respondent Factory which was manufacturing Aluminum

Sulphate (Alum) and thereby creating a public nuisance to the neighboring community.

Ranjith Silva J. analyzed in detail the relevant legal principles and has made it crystal clear

that the National Environmental Act does not oust the jurisdiction of a Magistrate vested

under section 98 of the Code of Criminal Procedure Act. It is stated that ‗the jurisdiction to

try public nuisance matters should go unhampered and undeterred or untrammeled by the

ordinary rules which apply in ordinary matters to restrict the jurisdiction of the Magistrate‘s

Court.

Punishment is now unfashionable, because it creates moral distinctions among men, which,

to the democratic mind, are odious. We prefer a meaningless collective guilt to a meaningful

individual responsibility

- Thomas Szasz