JSA LAW JOURNAL VOLUME VI - JUDICIAL SERVICE ...

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JSA LAW JOURNAL VOLUME VI

EDITORIAL COMMITTEE

JAYARUWAN DISSANAYAKARAKITHA ABEYSINGHE

web: www.jsasl.org | mail: [email protected]

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All rights reserved.

© JSA Law Journal 2018 Volume VI

Published by the Judicial Service Association of Sri Lanka

ISSN 2357-2884

Disclaimer:

Any views expressed in the JSA Law Journal are those of the individual author and are not to be attributed to the JSA Law Journal or the Editorial Committee. Unless expressly stated the views expressed are the author’s own and not of any institution the he or she represents.

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MESSAGE OF HIS LORDSHIP THE CHIEF JUSTICE

It is indeed a great pleasure to forward this message to be published in the 6th Volume of JSA Law Journal, to be launched at the Annual Judicial Conference organized by the Sri Lanka Judges' Institute in collaboration with the Judicial Service Association of Sri Lanka.

Today, we live in a society that is rapidly evolving in all fields, including law. Globalization has changed the dynamism of the entire society, and thus there is greater emphasize placed on the importance of knowledge economy across the world. This demands that the members of the judicial fraternity too equip themselves with necessary tools to perform judicial work professionally and diligently. In this context the annual Law Journal published by the Judicial Service Association of Sri Lanka continues to provide a much needed platform for our judicial officers serving throughout the country, to address subjects of contemporaneous importance and relevance, Which touch upon issues related to our justice dispensation system.

Whilst Commending the members of the Judicial Service Association of Sri Lanka and the Editorial Board for their untiring and sincere efforts, I wish them success in all future endeavours.

H. N. J. Perera,Chief Justice

CHIEF JUSTlCE’S CHAMBERS,

SUPREME COURT,

COLOMBO 12,

FAX : ++ 94 (0) 11 2437534

TELE : ++ 94 (0) 11 2422142

E- mail : [email protected]

23rd November 2018

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*elaia : ++ 94 (0) 11 2437534

ÿrl:kh: ++ 94 (0) 11 2422142

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EDITOR’S NOTE

It is with great pleasure the JSA Law Journal volume VI – 2018 is published by the Judicial Service Association of Sri Lanka. Judicial education is one of the prime objectives of this law journal. Other than the educational and social values; the research capabilities and ability to present papers with academic value are enhanced through the publication of this law journal. Special reverential appreciation should be paid to His Lordship the Chief Justice for the encouragement given for this academic endeavor.

This year, the journal comprises of two parts. Part one of the journal contains scholarly articles by the experts of various disciplines and articles written by the judges of the minor judiciary which were not submitted for the competition and Justice Amarathunga memorial Award. Part two of the journal consists of articles that were submitted for the competition and award. Those articles were evaluated by a panel comprised of His Lordship Justice L. T. B. Dehideniya, Judge of the Supreme Court, His Lordship Justice Arjuna Obeysekara, Judge of the Court of Appeal and Hon. Ruwan Fernando, Judge of the commercial high court, Colombo. Devotion of the members of the panel despite their busy schedules is absolutely appreciated.

Entire procedure for the selection of the best article for justice Amarathunga memorial award was supervised by the Judges Institute. Supervision and guidance of Hon. Prashantha Silva, Judge of the High court and the deputy director of the Judges Institute is admired and acknowledged with gratitude. Further the co-operation of Mr. Anushka Senevirathna and Ms. Anandi Kanagarathnam is appreciated.

Vehement protestation of gratitude is paid to the authors who have contributed with articles to the Law journal. Their Innovative thinking, willingness for sharing vision with others and dedication is acknowledged and appreciated. Special appreciation goes to the president, secretary, Assistant editor, members of the executive committee of the JSA and former editor of the JSA for the assistance given for the publication of the law journal. I would like to sincerely thank everyone who have supported for the fulfillment of this objective.

The JSA law journal has become a platform for judicial officers to perform their skills and to present their views based on researches. It provides an opportunity for an intellectual dialog amongst stakeholders of justice delivery system. Upholding the noble concept of the rule of law and dispense of justice through constant legal education is another prospect. Contribution for the enhancement of legal jurisprudence by providing well researched articles which are up to the international standards is the expectation for the future.

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IN MEMORY OF JUSTICE P.H.K. KULATILAKA A TRUE MENTOR

W. Rakitha G. Abeysinghe (LL.M) Col.Additional District Judge of Chilaw.

Assistant Editor of Judicial Service Association

It was the Criminal Law lecture at the first year in law at Sri Lanka Law college, Mr. Palitha Fernando P.C former Attorney General of Sri Lanka was teaching the offence of murder to the young minds, suddenly he was saying zuOqjka;S ;uhs ug

álla yß iekiSula ;sfnkafka tal;a ke;s fjkjd'Z [Maduwanthi, is only bit of comfort for me, I am losing it…] he was teaching cumulative provocation. This is a very sensational quoting articulated in the most famous case of Premlal V. Attorney General1 decided by Justice Kulatilaka where his Lordship was able to broaden the spectrum of interpretation of the defence ‘sudden provocation’ setting a milestone in criminal law norms in Sri Lanka.

I must say Justice Kulatilaka is to many one of the most famous judges of all time in Sri Lankan legal spheres. Law students, Judges and members of the legal fraternity certainly love him for his intriguing judgments. Justice Kulatilaka’s judgments certainly make for interesting reading.

His Lordship Justice Kulatilaka is judge who never refrained from carrying out his obligations towards the Judiciary of Sri Lanka. Justice Kulatilaka discharged his duties as long as his lordship felt that his Lordship can do the same in full steam. One who possesses such a sincere courage and erudite sprit for disseminating knowledge is a true blessing for the oncoming generations.

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It is a great privilege me to be able to write some thoughts about Justice Kulatilaka a true legal luminary. In this endeavour Justice Kulatilaka’s beloved wife Mrs. Kulatilaka and daughter Dr. Shalindra Ranasinghe has provided me with valuable information. I am grateful for those insights provided by them.

His Lordship Justice Peduru Hewa Kankanange Kulatilaka was born on the 5th of January 1939 in spellbinding Southern coastal city of Galle in Sri Lanka. He hailed from a distinguished family, his father was a wealthy businessman and mother was a caring house wife who nurtured Justice Kulatilaka and his seven siblings.

Justice Kulatilaka attended Mahinda College of Galle where he excelled in academic spheres. He was able to bring fame to his prestigious Alma mater by leading Mahinda in numerous intellect oriented extracurricular activities involved in Sinhala and English Senior debating and Senior General Knowledge teams.

Justice Kulatilaka persued his higher studies in the University of Peradeniya having gained entrance to the esteemed institution in 1959. After successfully completing the academic tenure in the University of Peradeniya, he obtained a Bachelor of Arts degree having specialized in Geography.

Justice Kulatilaka had an immense inherent passion for teaching; thus his Lordship’s immense desire for sharing knowledge was embodied in every stage of his life. His Lordship’s dream was fulfilled by becoming a teacher attached to a Government school. His first teaching appointment was in 1963 at Meda Mahanuwara Maha Vidyalaya in Kandy. In the year of 1966 he joined Ananda College Colombo. At the Ananda College Colombo, he was able to work under the guidance of Colonel Perusinghe and Colonel Rajapaksha. There he perfected his teaching skills adding a sense of discipline to it.

Justice Kulatilaka detested the means and modes of wasting time, and his eagerness to learn and teach intensified during his stay in Colombo. To make full use of his precious, he was ambitious enough to earn another degree, and that degree was a turning point in his life - opening the doors to the legal arena. His Lordship joined the University of Colombo to pursue Law. Justice Kulatilaka obtained his Literally Legum Baccalaureus (LL.B) from University of Colombo as an external student candidate on 20th February 1970. His Lordship passed the final examination of admission of the Advocates of the Supreme Court of Ceylon in 1971, and accordingly he was called to the bar.

On 6th September 1973 He was appointed to a post of Supreme Court Legal assistant attached to the ministry of justice. Those days this post was created to assist Supreme Court judges in their legal research work. While he was discharging his duties of the said office Justice Kulatilaka was able get acquainted with several Supreme

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Court Justices. He got the rare opportunity to witness the calibre and demeanour of apex court judges who immensely impressed him to become a Judge.

In the year 1976 all recruits for the post of Supreme Court Legal assistants were absorbed as State Counsel at the Attorney General’s Department. Accordingly Justice Kulatilaka became a state counsel on the 1st September 1976. Justice Kulatilaka prosecuted in many significant cases during his Lordship’s time at the Attorney General’s Department. Subsequent to his Lordship’s meritorious work at the Attorney General’s Department, his Lordship was promoted to a Senior State Counsel on 1st June 1984. Justice Kulatilaka was a vigorous prosecutor enriched with a vast knowledge on law. His Lordship’s brilliance in dealing with criminal matters was later well reflected in several landmark judgments.

Justice Kulatilaka’s noteworthy excellence rendered him to be called to the bench. Justice Kulatilaka was appointed as a Provincial High Court Judge in 1989. After a brief spell in the Provincial High Court of Colombo he was appointed as Provincial High Court Judge of Awissawella on 12th June 1989. During his Lordship’s tenure as a High Court Judge, his Lordship served in several Provincial High Courts in the island including Balapitiya , Kalutara and Colombo.

After displaying a decade of judicial excellence as a Provincial High Court Judge on 7th January 1998 his Lordship was elevated as a Judge to the Court of Appeal of the Republic. His Lordship’s immense experience as a Law Officer in the Attorney General’s Department and a Judge of the Court of Appeal has contributed to enhance the efficacy of the Judiciary in many aspects. His Lordship heard cases together with several renowned fellow Court of Appeal Judges including late Justice Ninian Jayasuriya, Justice Hector Yapa and Justice T.B. Weerasuriya.

Justice P.H.K. Kulatilaka, was an outstanding judge, complete in all respects. His Lordship’s uncanny ability mingled with extra-ordinary intellect is reflected and palpable in the most complex and difficult judgments. The issue under his Lordship’s judicial review have varied from, Criminal Law, Admiralty jurisdiction and civil law, Election petitions to Labour Tribunal matters. Overall analysis of his Lordship’s judgments highlights a pragmatist approach for real time issues. Therefore, Justice Kulatilaka can be classified as a Judge with “Legal pragmatism”.

It will be difficult to spell out the plethora of judgments which will bear testimony to his aforementioned judicial prowess. Kobaigane Murder Case (Ajit Samarakoon v. The Republic2) and Kamal Addaraarachchi Rape case (Kamal Addaraarachchi v. State3) are all time true sensational judgments decided by his Lordship Justice Kulatilaka.

In deciding the case of Premlal V.Attorney General4 Justice Kulatilaka observed a development in other jurisdictions where courts have taken a more pragmatic view

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on the mitigatory plea of provocation, and gave a novel consideration of aggravating factors of the prior course of relationship between the accused and his victim. This set up a new norm of legal precedence over the phrase of “sudden provocation”, broadening the earlier concepts on provocation which consisted of the single act which occurred immediately before the killing so that there was no time “for the anger to cool.”

His Lordship’s meticulous and analytical approach on matters containing complex evidence is really unique and commendable. It is evident on such rulings his Lordship profoundly utilizes and employs the pivotal rules and tests related to analysing of evidence. In the Embilipitiya Abduction and Murder Case (Dayananda Lokugalappaththi and others V. The State)5 His Lordship vividly illustrating the test of spontaneity, test of contemporaneity, test of belatedness, spontaneity and contemporaneity and test of probability and improbability to arrive at the decision.

Justice P.H.K. Kulatilaka’s judgments are testimony to the fact that he is a pragmatic judge who also decides well within the boundaries of the law. His lordship has been always mindful on the consequences of the judicial decisions to be rendered for their bearing on sound judicial norms. The dynamics of sociological theory of judicial behaviour are all pervasive in his judgments when it comes to social context judging. His Lordship’s sharp and analytical judicial thinking is evident in many reported Judgments Including Jayasooriya v. State [2001] 2 Sri LR 82; Attorney General v. Priyantha [2001] 2 Sri LR 98 ; Rajapakse v. The State [2001] 2 Sri LR 161; Sinha Ranatunga v. The State [2001] 2 Sri LR 173; Namaratne and another v. The State [2001] 2 Sri LR 274; Munirathne and others v. The State [2001] 2 Sri LR 383; Kumarasinghe v. The State [2001] 2 Sri LR 399; Nissanka v. The State [2001] 3 Sri LR 79; Udagama v. Attorney General [2000] 2 Sri LR 101; Gunapala v. Attorney General [2000] 2 Sri LR 131; David v. Gnanawathie [2000] 2 Sri LR 352; Premadasa v. State [2000] 2 Sri LR 385; Weerawardane v. State [2000] 2 Sri LR 391; Devananada v. Dayananda Dissanayake (Commissioner of Elections) [2000] 3 Sri LR 127; Premadasa v. State [2000] 3 Sri LR 385; Ranjith v. State [2000] 3 Sri LR 346; Jayawardena & others v. The State [2000] 3 Sri LR 192; Gunadasa alias Appuwa and another v. Attorney-General [1999] 1 Sri LR 253; Gamini v. The Attorney-General [1999] 1 Sri LR 321; Director-General for The Prevention of Bribery and Corruption v. Fernando [1999] 3 Sri LR 104; Sumanasena v. Attorney-General [1999] 3 Sri LR 137; Banda and others v. Attorney-General [1999] 3 Sri LR 169;Sunil v. Attorney-General [1999] 3 Sri LR 191; Moses v. State [1999] 3 Sri LR 401; Bandara v. The State [2001] 2 Sri LR 64.

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Justice P.H.K. Kulatilaka did not only excel in criminal matters but his Lordship has also shown brilliance in some judgments of a civil nature. In the case of M.V. “Ocean Envoy” V. Al-Linshirah Bulk Carriers Ltd6 interpreting the Admiralty Jurisdiction Act, No. 40 of 1983 Section 12 His Lordship stated that section 12 of the said act provides that where there is no provision or inadequate provision in the Act, the Admiralty Court shall have the power to make such orders for which the Court exercising admiralty jurisdiction in England had power to make. In the case of Upali Newspapers Ltd v. Eksatha Kamkaru Samithiya and others7 His Lordship held that “Article 170 of the Constitution read with Article 114 shows that the President of a Labour Tribunal is included in the definition of “Judicial Officer”. When one considers the judgments of Aneeza Umma v. Leelawathie and another [1999] 3 Sri LR 253; Rohana v. Shyama Attaygala & others [1999] 3 Sri LR 381; Baby v. Banda and others [1999] 3 Sri LR 417; Malani v. Somapala and another [2000] 2 Sri LR 197; Gunatilaka v. Lanka Sama Samaja Pakshaya & others [2001] 3 Sri LR 63 it is palpable that his Lordship has precisely decided civil law related issues in a vibrant manner.

His Lordship’s uninterrupted integrity and impartiality and his meticulous approach towards fact finding has even been recognized by the Executive branch of the Republic. While His Lordship was serving in the Court of Appeal, His Lordship was appointed as the Chairman of the Bindunuwewa Commission in 2001. Later His Lordship was appointed as the co-chair of the Tsunami Commission in 2005 along with Justice Hector Yapa.

Justice P.H.K. Kulatilaka retired in 2002 from the Court of Appeal at the age of 63 being the 2nd most Senior Judge of the Court of Appeal at that time. After retiring from a distinguished career in the Court of Appeal, Hon. Justice P.H.K. Kulatilake was been appointed as Deputy Director of Sri Lanka Judges’ Institute in 2002. In the year 2011 His Lordship was elevated to the position of Co-Director. His Lordship resigned from the Sri Lanka Judges’ Institute in 2014. Even afterwards he could not give up his service to the much loved Sri Lanka Judges’ Institute. He started working as a visiting lecturer. Hon. Justice Kulatilaka served the Judges Institute with distinction and, trained the new recruits and conducted in-service training to serving judges, both in civil and criminal fields. Justice Kulatilaka enjoyed teaching immensely disseminating his vast knowledge. He considered the junior judges as his own children in the judiciary system. He was never tired helping them. Being in the middle of a meal or a nap was never a bother to him if a junior judge sought some advice from him.

Justice Kulatilaka was knowledgeable in other fields like philosophy, literature, history and arts to name a few. At the Judges institute it was a common sight that

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Justice Kulatilaka carried Lord Denning’s books to his lectures. Justice Kulatilaka usually quotes anecdotes from Lord Denning’s books. Justice Kulatilaka observed judicial that temperament is paramount and that it is indeed hallowed. His Lordship taught that a judge must resemble a swan that glides patiently and gracefully amid storms above and churning waters underneath.

Apart from his work on the bench, His Lordship was a great husband and loving father. Justice P.H.K. Kulatilaka was fortunate enough to have a very caring wife whom he met in the University of Peradeniya, with whom his Lordship spent a period of 49 years of a happy married life. Justice Kulatilaka was also a great father of two children and a grand father of four grandchildren who were much loved by him and vice versa. His much loved career, wisdom, great memory and love for all came to a standstill when he was hospitalized on the 1st of August 2018. His will power, memory, and utmost medical care he received during this period could not defeat the ailing body & nature of aging. After spending six weeks in hospital he succumbed to his illness bringing tears to many eyes.

Justice P. H. K. Kulatilaka, his Lordship’s disarming smile and pleasant disposition, was always amiable and adorable. His Lordship was a true amicus, mentor and philosopher. He was characterized by great knowledge, wisdom, intellect and contemplation. His Lordship’s understanding of human psychology made him a brilliant and a complete Judge. Hon. Justice P. H. K. Kulatilaka, former Co-Director of the Sri Lanka Judges’ Institute was called to eternal rest on 15th of September 2018. Yet, the sweet memories of him will never fade and the rich reservoir of words spoken and written to all of us will remain for ever within us and will continue to enrich many generations to come.

Endnotes1 [2000] 2 Sri LR 4032 [2004] 2 Sri LR 2093 [2000] 3 Sri LR 3934 Ibid 5 [2003] 3 Sri LR 3626 [ 2002] 2 Sri LR 3377 [1999] 3 Sri LR 205

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President Mr. Ranga Disanayake

Vice Presidents

Mrs. Nirosha Fernando

Mr. Hasitha Ponnamperuma

Secretary Mr. M. M. M. Mihal

Assistant SecretaryMr. Prasanna Alwis

Treasurer Mr. Pasan Amarasena

EditorMr. Jayaruwan Dissanayaka

Assistant Editor Mr. Rakitha Abeysinghe

Web MasterMr. Anushka Senevirathne

Committee Members

JUDICIAL SERVICE ASSOCIATION Executive Committee - 2018

Mr. Manoj ThalgodapitiyaMr. Ruchira WeliwattaMiss. S.H.M.N.LakmaliMr. D.G.N.R.PremaratneMr. T.J.PrabakaranMr. Mr. M.Wijeweera Mr. Prasahantha Liyanage Mr. Udesh RanatungeMr. L.C.MadanayakeMrs. Chanima WijebandaraMrs. Lochanie WeerasingheMr. A.A.Anandarajah Mr. Sampath HewawasamMrs. Ruwanthika MarasingheMrs. K.D.N.V. Lankapura

Mrs. Thanuja JayatungeMrs. K.A.D.S.C.Perera Mr. S.G.C.Wickramanayake Mr. G.M.T.U.Suwandurugoda Mr. Isuru Neththikumara Mr. Sanjaya WijesingheMr. Pradeep FernandoMr. Suranga Munasinghe Mr. Keminda PereraMrs. Tharanga Rajapakse Mr. Lilan WarusawithanaMr. Nuwan GunasekaraMr. Trinity RajapaksheMr. Aruna BuddhadasaMr. D.M.R.D. Dissanayake

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CONTENTS

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Part - I

Child Marriages And Other Abuses under The Muslim Marriage 1-27 And Divorce Act Of Sri LankaJustice Saleem Marsoof PC

Child Abuse 28-31Professor Ravindra Fernando

The Logistician cum Lawyer 32-42Professor Prathibha Mahanamahewa, Dr. Lalith Edirisinghe

Copyright And The Conceptual Mismatch In Developing Countries: 43-65 The Sri Lankan PerspectiveDr Chamila S. Talagala

Judgment Writing 66-78R. S. S. Sapuvida

Importance of Safeguarding Banking Secrecy 79-87Dilini Nilanga Wilathgamuwa

The Right of the Accused to Speedy Trial 88-92Priyantha Liyanage

Applicability of the House and Town 93-103 Improvement Ordinance Chinthaka Srinath Gunasekara

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Part - II

Preventing Othello’s Error in Court: A Discourse on Demeanour 107-129Chanima Wijebandara

Are you an administrator ? 130-132D.M.D.C.Bandara

Globalizing Human Rights: An Asian Perspective 133-147Anandhi Kanagaratnam

Salient Features Pertaining To A Driving Licence 148-154 In Terms Of Motor Traffic Act. Manjula Karunarathna

An overview of the law relating to Parate Execution procedure 155-165 in Sri LankaNuwan Tharaka Heenatigala

Separating Shepherds from Butchers: Going Beyond 166-206the Traditional Role of the Demeanor of Witnesses when Assessing their Credibility and Reliability in Judicial Review of Evidence in both the Trial and Appeal Kushika Kumarasiri

Identifying the corpus in a partition action; issues and 207-216 suggestions of the duty of the court Lilan Warusavithana

The Role Of Jurors In The Context Of Social Media 217-225Keerthi Kumburuhena

An Equitable Balance Between Constructive Trust Law 226-243

Regime And Dynamic Legal Strategizing Dimension H.K.M Harshana de Alwis

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Part - I

JSA LAW JOURNAL - VOL VI

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CHILD MARRIAGES AND OTHER ABUSES UNDER THE MUSLIM MARRIAGE AND

DIVORCE ACT OF SRI LANKA

Justice Saleem Marsoof PC

A - Introduction

This article will focus on the much controverted and written about question of child marriage1, which is inherently related to the urgent need to establish a minimum age of marriage for the Muslims of Sri Lanka, and related issues of abuse that have taken center stage in the currently topical debate on the reform of the Quazi Court System and the Muslim Marriage and Divorce Act of Sri Lanka (MMDA)2. These issues also have cross-border dimensions, highlighted by recent scandals arising from incidents of Malaysian men crossing over to neighboring Muslim predominant provinces of Thailand to marry child brides.

Etymologically speaking, “marriage” had nothing to do with “age”, though the latter represents the last three letters of the word “marriage” and the question of age of marriage has now become a hot topic in the MMDA debate. The word “marriage” is derived from the Middle English word3 “marriage”, which first appeared in 1250–1300 CE, which in turn may be traced to the Old French, “marier” (to marry), and ultimately Latin, “marītāre”, meaning to provide with a husband or wife and “marītāri”, which means getting married. The history of marriage shows that it has evolved over the centuries from a manifestation of power, money and survival to a union based on mutual love and respect.4

It is important to note that Sri Lanka’s current Muslim Marriage and Divorce Act (MMDA) does not have any provisions laying down a minimum age of marriage, and child marriages are considered lawful5.Section 16 of MMDA provides that-

“Nothing contained in this Act shall be construed to render valid or invalid, by reason only of registration or non-registration, any Muslim marriage or divorce which is otherwise invalid or valid, as the case may be, according to the Muslim law governing the sect to which the parties to such marriage or divorce belong.”(emphasis added)


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Applying the above quoted provision, in Sideek v Shiyam6, the Sri Lankan Board of Quazis, which is the appellate body to which appeals and applications for revision from Quazishave to be made under the MMDA,held that the registration of a marriage contrary to the applicable Muslim Law and the provisions of MMDA is a nullity and of no force and avail in law. Conversely, if a Muslim marriage is valid according to the Muslim law of the relevant sect, its validity will not be affected by the failure to register the marriage. It is noteworthy that Section 98(2) of MMDA provides that “in all matters relating to any Muslim marriage…, the status and the mutual rights and obligations of the parties shall be determined according to the Muslim law governing the sect to which the parties belong.” It is clear that, subject to the other provisions of MMDA, the validity of a marriage and its consequences fall to be determined by principles of Shariah and Islamic fiqh,7 under which child marriages are considered valid and lawful.8

In any discussion of child marriage and it is implications, it will be important to bear in mind that the United Nations Convention on the Rights of the Childdefines a “child” as “every human being below the age of eighteen years.”9Reference must also be had to Article 16 of the Convention on the Elimination of All Forms of Discrimination against Women,10which provides that “[t]he betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage….”It is noteworthy that as long ago as in 1937, the Board of Quazishad the opportunity to consider some of the leading decisions and orders of the Quazi Courts concerning child marriage, and observed that “in the best interest of the Muslim Community this social evil should be eradicated by the creation of public opinion”11

It is manifest from the Report of the Committee appointed to consider and recommend amendments to the Muslim Marriage and Divorce Act12, that the two important factors that prevent a realistic estimate being made of the number of existing child marriages in Sri Lanka are, firstly the fact that most of them are unregistered and the Registrar General does not have any data regarding such marriages, and secondly, the prevalence of the practice of overstating the age of the bride when such marriages are contracted13. Bisthan Batcha, using 2012 Census figures, has come to the conclusion that nearly 6% of the estimated 117,048 Muslim female children aged between 12 – 17 years, were either married, widowed, divorced or separated, which is by no means a “negligible” number.14 The MMDA Committee, in its Report15 has adverted to the fact that in 2016, no less than 1777 marriages involving Muslim brides between 12 and 17 years were registered, and has gone on to observe16 that-

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“Judging by the reports of abuse of the provisions of the Muslim law, particularly the propensity of not registering marriages involving young girls or supplying wrong dates of birth to the Registrars at the time of registration, these figures of registered marriages may be described as the trip of the iceberg, and the problem of sexual abuse and exploitation of young women goes on unabated. It is therefore time to act.”(emphasis added)

B - Progression from Testimonial Capacity, Criminal Responsibility and the Age of Majority

As the saying goes, “age is no barrier to marriage”, and it has been often said that this saying applies to Muslim marriages as well. When to marry, if at all, and whom to marry are matters of choice, but according to Islam, marriage is considered obligatory when there is a chance of falling into sin17.However, it is important to remember that the law in general, andthe Muslim lawin particular,have taken into consideration age as well as the process of aging in formulating rules relating to the reliability of testimony of children and their liability under criminal and civil law, and it may be useful to refer to some of them.

The Evidence Ordinance18 does not generally preclude any child from testifying in a court of law. However, section 118 of the said Ordinance provides that all persons “shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions” by reason of their “tender years” or such other circumstances. However, in regard to criminal liability, the Penal Code19 does provide protection to juvenile offenders by specifically providing in section 75 thereof that nothing is an offence which” is done by a child under twelve years of age.”20 More significantly, section 76 of the Penal Code provides that nothing is an offence which “is done by a child above twelve years of age and under fourteen, who has not attained sufficient maturity of understanding to judge the nature and consequence of his conduct on that occasion.”21

As regards civil liability, the general threshold is the attainment of majority, which according to section 2 of the Age of Majority Ordinance22 is synonymous with “the attainment of eighteen years”. In most jurisdictions, majorityis regarded as the stage at which a minor reaches adulthood.The Roman-Dutch Law regards unassisted contracts (that is those that are not entered into by the father or other guardian of a minor on behalf of the minor) as void against the minor, and under English law they are deemed to be voidable at the instance of the minor. Prior permission of Court is required for any transaction relating to land or other immovable property belonging to a minor is to be valid and binding on the minor. Of course, a minor may attain majority at a younger age by “operation of law”23 The most important mode of


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attaining majority by operation of law known to the Roman-Dutch Law was the grant of the status of “major” through the issue of VeniaAetatis24, which is a licence that certifiesthe emancipation of the grantee from his minority status.

In terms of the Registration of Marriages Ordinance, which is better known as the General Marriages Ordinance25, only a person who has attained majority may enter into a contract of marriage on his or her own, and a minor cannot enter into a valid marriage without the consent of his or her father, or if he is dead or under legal incapacity or is overseas and is unable to make known his consent, without the consent of the mother or other guardian.26Of course, as provided in section 3 of the Age of Majority Ordinance, a person may attain majority “by operation of law” and may marry unassisted by the father, mother or other guardian even prior to attaining the age of eighteen. These provisions do not apply to a marriage between Muslims.In Assanar v Hamid27, the Supreme Court held that a Muslim may acquire the attribute of “soundness of mind”(rushd) and be emancipated from his or her state of minority and be for all purposes be deemed to have attained majority by “operation of law” with full capacity.

C - The Convention on the Rights of the Child and the ICCPR Act

Before considering the intricate issues of child marriage and the imposition of a minimum age of marriage for Muslims in Sri Lanka in greater detail, it may be worth the while to have a brief look at the UN Convention on the Rights of the Child,28 which is binding on Sri Lanka. Article 1 of this Convention defines a “child” in the following manner:-

“For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”(emphasis added)

There is no consistent definition of the term “child” in the legislation of other nations in our neighborhood. For example, the term “child” was defined in the Child marriage Restraint Act of 1929 of Pakistan as a male under 18 years of age and a female under 16 years, and in the Prohibition of Child Marriage Act 2006 of India as a male or female below 18 years. There is no definition of “child” in the Administration of Muslim Law Act 1968 of Singapore, but according to section 96(4) of the said Act, only a male or female above 18 years of age may lawfully enter into a contract of marriage, subject to the power of the Kadi under section 96(5) to solemnise the marriage of a girl below 18 in special circumstances.29 As far as Sri Lanka is concerned, it is noteworthy that the term “child” has been defined in the International Covenant on Civil and Political Rights (ICCPR) Act30 as “a person under the age of eighteen years”.

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It is important to note that the UN Convention on the Rights of the Child, as clearly set out in its preamble, has sought to give recognition to“the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. The Convention requires all State Parties including Sri Lanka, to respect and ensure the rights set forth in the Convention to each child within their jurisdiction without discrimination of any kind, “irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status”and to take all appropriate measures to ensure that the child is protected against all forms of discrimination.31

While Article 3(1) of theConvention on the Rights of the Child provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, “the best interests of the child shall be a primary consideration”, Article 14(2) requires all State Parties to “respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.” Article 15 requires State Parties to recognize the rights of the child to freedom of association and to freedom of peaceful assembly, and Article 16(1) provides that no child “shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.”

What is of relevance in the context of minimum age of marriage and child marriage is that in terms of the Covenant on Civil and Political Rights (ICCPR) Act of Sri Lanka,32 every child has the right to have his or her birth registered and to have a name and to be protected from maltreatment, neglect, abuse or degradation.33 Furthermore, the Act provides that in all matters concerning children, whether undertaken by public or private social welfare institutions, courts, administrative authorities or legislative bodies, the best interest of the child shall be of paramount importance.34

William Wordsworth once celebrated childhood with his famous words “The child is father of the man” in his poem which begins with the words, “My heart leaps up when I behold a rainbow in the sky”. This and other poetic works of Wordsworth have stressed in no uncertain terms the fact that childhood is the psychological and emotional foundation for adulthood. The child of today has the potential of becoming a leader or at least a useful citizen of Sri Lanka in the future. Undoubtedly, there can be no greater crime than ruining the most wonderful period of life of any human being - his or her childhood.


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D–Child Marriage and theMinimum Age of Marriage applicable to Muslims of Sri LankaIt is important to note that the term “child marriage” connotestwo different types of marriage-

(a) the marriage of a child who has not attained puberty (bulugh), which is contracted by the marriage guardian (wali) with or without the consent of the child; and

(b) the marriage of a “child” who has attained puberty (bulugh), contracted by the childwith or without the approval of the marriage guardian (wali), or by the wali (with or without the consent of the child).

The only provision of MMDA that deals with “child marriage” is section 23 of the Act, which prohibits the registration(as opposed to solemnization) of any “marriage contracted by a Muslim girl who has not attained the age of twelve years…unless the Quazi for the area in which the girl resides has, after such inquiry as he may deem necessary, authorised the registration of the marriage”. This provision does not prohibit the valid solemnisationof such a marriage without the Quazi’s authority, and as already seen, section 16 of MMDA expressly enacts that non-registration of a shariah consistent marriage in accordance with the provisions of MMDA will notrender the marriage void despite the failure to register such a marriage being an offence.

This means that a person may contact a valid marriage with a child, however young the child may be, if he does not want to have the marriage registered. Of course, in doing so, he runs the risk of being convicted of the offence of the failure to have the marriage registered, for which he will have to pay a nominal fine, but the marriage will still remain valid. In effect, as far as the current provisions of MMDA are concerned, age is not a barrier to marriage.

In this background, it may come as a surprise to many to hear that the concept of “age of marriage” is not altogether unknown to the shariah and fiqh, and in fact there is explicit reference to bulugh an-nikah (َحاَكِّنلااوُغَلَب) in the Holy Quran. However, before looking at this matter in greater detail, it is necessary to first understand the nature, characteristics and ramifications of sects or madhabs,since differences of sects and madhabs feature very much in any discussion of problems arising under the Muslim law of Sri Lanka.

The two great sects of Islam are the Sunni and Shiah sects, and the former consists of four ‘schools of thought’ (madhab), namely, the Hanafi, Maliki, Shaffie and Hanbali schools, and the Shiah sect too is divided into three major schools, known as IthnaAshari, Ismaili and Zeydi.35Section 25(1) of MMDA has equated the Shaffie

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school of thought(madhab) with sect by referring to it as “Shaffie sect” and Sri Lankan courts have taken the view that since Sri Lankan Muslims largely belong to the Shaffie sect, “the Shaffie doctrine is generally applicable”36 and that a Muslim party should be presumed to be a Shaffie unless there is evidence to the contrary.”37

As already noted, the validity or otherwise of a Muslim marriage or divorce must be determined by reference to the “Muslim Law of the sect to which the parties belong”38. This is despite the fact that, a fair number of Muslims in Sri Lanka either do not adhere to any sect or madhab, or are in fact unaware of, or are indifferent to, the existence of various sects or madhabs,and are in effect, sect-less. In fact, the classification of persons into sects or rigid divisions on the basis ofmadhabs is inconsistent with the Holy QuranSurah Al-An’am 6:159, in which God (Allah) says to our beloved Prophet Muhammad (PBUH)-

“As for those who divide

Their religion and break up

Into sects, thou hast

No part in them in the least:

Their affair is with God:

He will in the end

Tell them the truth

Of all that they did.”39

(emphasis added)

This is indeed a strong warning to all those who break up religion into sects and make rigid classifications according to themadhabto which a party to a dispute belongs, forcing such persons to “convert” from one madhab to another to avoid an inconvenient rule. Herein lies the main justification for seeking the amendment of section 16 of MMDA to make it shariah compliant. It must be stressed that there is no objection to any Muslim preferring to follow the teachings of any particular school of thought on his or her own volition, but what is objectionable in section 16 in the eyes of God (Allah), is the strict division of persons into one sect or madhab or another for the purpose of applying principles of Islamic law, which in effect takes away the flexibility of the teachings of various madhabs and not only divides or classifies the community (umma) into various sects or schools of thought, but also curtails juridical reasoning(ijtihad).Apart from the serious issue of failing to comply with a clear commandment of God contained in the Holy Quran, there are also great difficulties in applying section 16 of MMDA, foremost among them being the question whether section 16 is applicable at all to a person who does not abide by the teachings of any


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sect or madhab. Further difficulties concern the pragmatic issues that arise when one has to determine the validity of an inter-sect or inter-madhab marriage.40

As noted already, the concept of “age of marriage” is not altogether unknown to the shariah and fiqh. It is evident from the Holy Quran 4:5,Surah Nisaa that those in charge of orphans who are “weak of understanding” by reason of their tender age, are encouraged to feed and clothe them out of their own property, and to speak to them words of kindness. In the very next verse, namely Holy Quran 4:6, those in charge of orphans are commanded to-

“Make trial of orphans

Until they reach the age

Of marriage; if then ye find

Sound judgment in them,

Release their property to them.”41

(emphasis added)

It is significant to note that the Arabic term that is used in the above quoted verseto refer to the “age of marriage” isbulugh an-nikah (َحاَكِّنلااوُغَلَب) which means puberty.In the same verse there is also a reference to the concept of “sound judgment” that is attained at the “age of discretion” which in Arabic is known asrushd (اًدْشُر), and which falls in line with the concept of the age of majority.

Puberty (bulugh) signifies physical capacity and refers to the period at which a child’s sexual desires are aroused. This period differs for males and females, as well as from region to region and even person to person. For girls, puberty may be reached between 9 to 12 years, and for males it takes a little longer, and ranges from 12 to 15 years.42Islamic jurists hold that physical capacity by itself, is not enough for a person to handle the responsibilities of marriage, and hence, sound judgment (rushd) is equally important. It is noteworthy that Wood Renton CJ in Marikar v Marikar et al43 and Gratiaen J in Asanar v Hamid44 relied on Ameer Ali45to hold that if a minor child “should not be discreet at the age of puberty, he or she is presumed to be so on the completion of the eighteenth year, unless there is any direct evidence to the contrary.”

In this context, it is worth noting that the fact that the onset of maturity of intellect or sound judgment (rushd) is a gradual process has been recognised in the general law as well, wherein as already noted, a Judge is granted a discretion by section 118 of the Evidence Ordinance in deciding whether the evidence of a child of tender years may be acted upon, and a similar discretion is allowed to the Judge by section 76 of the Penal Code in determining the criminal liability of a child between 12 and 14 years.Under the general law, majority which signifies among other things the right

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to vote and participate in democratic governance, the competence to marry without the assistance of parents or guardians and other ramifications of adulthood including the full capacity to enter into contracts and other transactions and be fully bond by them, is attained at the age of 18.This shows that the capacity to take criminal responsibility in regard to one’s acts and omissions is the lowest level of maturity which then progresses to full capacity which comes only with the intellectual attribute of discretion (rushd) associated with adulthood. Of course, there may be persons older than 18 years whose mental state may be deficient as in the case of persons who suffer from insanity and other psychological conditions that will require continued protection under the law and require the guidance and assistance of a guardian (wali) even beyond the age of majority.

There seem to be no controversy that according to the Muslim law applicable in Sri Lanka, a child whether male or female, is capable of being given in marriage by its marriage guardian (wali) in the exercise of his power of matrimonial guardianship (known as jabr) before it attains puberty (bulugh), but a male child who has attained puberty is said to possess the capacity to marry on its own.According to the Maliki and Hambali schools of thought, only the father can exercise jabr, but under Shaffie and Hanaffi law the power extends to other “paternal kindred”.46

Although Islamic jurists are unanimous that a male child is capable of entering into to matrimonial bonds on his own after attaining puberty (bulugh),there is some juristic disagreement when it comes to a female child. While according to the opinion of Imam Abu Haniffa,a female child who has attained puberty may marry on her own, it is not so in the opinion of Imam Shaffie. The rigid view of the Shaffie school was reflected in Minhaj et Talibin by Imam Nawawi in the following words:-

“A father can dispose as he pleases of the hand of his daughter, without asking her consent, whatever her age may be, provided she is still a virgin. It is, however, always commendable to consult her as to her future husband; and her formal consent to the marriage is necessary if she has already lost her virginity. Where a father disposes of his daughter’s hand during her minority, she cannot be delivered to her husband before she attains puberty.”47

Section 25 of MMDA has mitigated the rigors of the Shaffie doctrine by enacting specifically that-

“25. (1) For the avoidance of doubt it is hereby declared thatno contract ofmarriage of a womanbelonging to the Shaffie sect is valid under the law applicable to that sect, unless—

(a) a person entitled to act as her wali—


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(i) is present at the time and place at which the contract is entered into; and

(ii) communicates her consent to the contract and his own approval thereof; or

(b) the Quazihas under section 47, authorized the marriage and dispensed with the necessity for the presence and the approval of a wali.

(2) A marriage which is invalid under the law referred to in subsection (1) shall not be registered under this Act.”(emphasis added)

Section 25 specifically deals with the marriage of a woman as opposed to a girl, in regard to whom specific provision has been made in section 23 of MMDA. This provision is quoted below:-

“23. Notwithstanding anything in section 17, a marriage contracted by a Muslim girlwho has not attained the age of twelve years shall not be registered under this Act unless the Quazi for the area in which the girl resides has, after such inquiry as he may deem necessary, authorized the registration of the marriage.”(emphasis added)

The contrast is between a girl who has not attained the age of 12 years, which is the outer limit of the period within which a girl attains puberty, and a woman who is a grown-up female above the age of 12 years. Hence, it may be concluded that section 25 was comparatively progressive in the sense that it made it compulsory to consult a woman above 12 years of age, in regard to her consent to a marriage, and section 23 was intended to be protective to the extent that it required the Quazi’s approval for the registration of a marriage of a girl below 12 years of age.

There is also some difference of juristic opinion regarding the right of a child to repudiate a marriage contracted prior to it attaining puberty. The Hanafi school gives the child the “option of puberty”(khyarul -bulugh) to repudiate the marriage on attaining puberty where the marriage was contracted by a marriage guardian(wali) who was neither the father or paternal grandfather of the child.The “option of puberty” is strictly a Hanafi law concept48 and there is no reference to it in Shaffie texts such as Minhaj-et-Talibin. However, the option was successfully (but questionably) invoked in Muheideenbawa vSeylathumma49which involved Shaffie parties, but it has been held in later cases that a child marriage of Shaffie parties will continue even after the girl so given in marriage attains puberty, as under Shaffie law she has no option of repudiating it.50 It was in view of the stringent rule of the Shaffie scholars that the Board of Quazis in the course of its judgment in the Muheideenbawacasecalled upon the Muslim Community to rally round to eradicate the “social evil” of child marriage

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through the creation of public opinion, a somewhat daunting task considering the community’s backwardness in education and attitudes.E – Analysis of Sri Lankan case law on Age of Majority, Age of Marriage and Age of Discretion

The question of age of majority, age of marriage and age of discretion has been dealt with by our Courts in the past. It will be useful to have a glimpse of the Sri Lankan case law in the context of the question whether a minimum age of marriage should be imposed by legislative reform, and if so, what is the suitable age for this purpose.In discussing these cases it would be important to bear in mind that they were decided prior to 1989 when the age of majority was reduced from the attainment of 21 years to 18 years, which is the current age of majority in terms of the Age of Majority Ordinance51. Central to this discussion will be the concepts of puberty (bulugh) and discretion (rushd) which were considered in outline in the previous section of this article in the context of the Holy Quran Surah Nisaa 4:6.

A good starting point for an analysis of Sri Lankan case law on the subject would be the decision of the Supreme Court in Marikar v Marikar et al.52 In this case, the the paternal uncle of a boy aged 17 sought an injunction on the basis that he was the marriage guardian (wali) of the boy, to prevent the father of a girl giving her in marriage to the boy with the consent of the boy’s mother but without the plaintiff ’s approval, the father and the paternal grandfatherof the boy being dead. The District Court refused relief to the plaintiff, and on appeal, the Supreme Court upheld the decision of the lower court. Wood Renton CJ expressed his opinion as follows:

“No relative except a father or paternal grandfather has the power of contracting any marriage for a boy or a girl under the age of puberty[Wilson’s Digest of Anglo-Muhammadan Law, third edition, p. 410, s. 403]. The plaintiff ’s action fails, therefore, on this ground alone. But, in my opinion, it fails upon another ground also. Ceteris paribus, capacity to marry under Muhammadan law is dependent on the attainment of puberty, provided-a condition satisfied by the evidence in the present case-that the pubes has also reached theage of discretion.”53(emphasis added)De Sampayo J, in his concurring judgment, stated that he would dismiss the

appeal on the basis that the two most affected persons, namely the boy and girl in question, were not parties to the case, but went on to set out his own views in regard to capacity to marry under Muslim law in the following manner:-

“Now, the age of capacity is the attainment of puberty, which is settled at fifteen years of age. This is sometimes, spoken of as the age of majority also, because, as a rule, capacity and majority coincide. But it is clear from the recognized


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text-books on the Muhammadan law that they are not necessarily the same, and that there are, so to speak, two kinds of majority: one is majority for the purposes of marriage and is the same as puberty, and the other is majority in the general sense, which is conditional on the possession of “discretion”, that is to say, sufficient judgment for managing property and conducting business. The latter kind of majority cannot be attained before fifteen years of age, and may not be even then, if the minor has no “discretion”.…. According to Muhammadan law, therefore, not only has CaderSaiboMarikar[the boy in question] attained the age of “majority” and become capable of contracting himself in marriage, but the authority of the plaintiff as guardian, if any, has ceased. But some difficulty arises out of the provisions of the [Age of Majority ]Ordinance No. 7 of 1865, which fixes the legal age of majority at twenty-one years. In my opinion the Ordinance has regard only to the attainment of legal majority for general purposes, or the majority which under the Muhammadan law is conferred by “discretion”, and does not affect the age of capacity for purposes of marriage.”(emphasis added)

In Narayanan v Saree Umma et al54which involved a mortgage bond which was put into suit against two persons professing Islam, one of the defendants took up the position that he was under the age of 21 years at the time of entering into the bond, and was therefore a minor within the meaning of the Age of Majority Ordinance55.The District Judge held that since the said defendant had married prior to entering into the bond, the Roman-Dutch law rule as to majority being attained by marriage applied to Muhammadans as well, and on that basis,pronounced judgment against the second defendant. On appeal, the Supreme Court took the view that the learned District Judge had erred, and while holding that a Muslim does not attain majority through marriage, decided that the Age of Majority Ordinance applies to Muslims since they are not expressly excluded from its purview. It is important to note that in rejecting a submission made by Mr. A. St. Y. Jayawardeneon behalf of the plaintiff that since under the Muslim law, a person who has reached the age of discretion (rushd) was able to bind himself by contract, he could do so still, whether he be regarded as a major or not,de Sampayo J., with whom Loose J. concurred, also referred to his opinion in Marikar v Marikar et al quoted above and observed that-

“Now, the general rule which incapacitates a minor from entering into an obligation accords with justice, and is eminently suitable to the circumstances of all the people in Ceylon. This, I think, furnishes one reason for not accepting Mr. Jayawardene’s argument, and there is another. The capacity to transact business and to enter into contracts depends upon the attainment of “majority” in the sense of the Muhammadan law. But the period of majority

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has been fixed by the Ordinance at twenty-one years of age even as regards Muhammadans, and consequently no such business can be transacted now by a Muhammadan under the age of twenty-one years. I think the plain object of the Ordinance, when it so fixed the age of majority, is to continue the legal disability of a person up to that age.”

Another decision worthy of consideration is that of the Supreme Court in Asanar v Hamid56, in which the question that arose was whether the plaintiff, who had received a gift of land (by Deed P1) from his father when he was12 years old, was bound by a purported sale of the said land (by Deed P3) executed in favour of the defendant when he was just over 19 years old and married, though not technically a major being below the age of majority of 21 years. Gratiaen J. (with whom Dias J. concurred) answered the question in the affirmative, and in the course of his judgment, differed from the view expressed by de Sampayo J in Narayanan v Saree Umma that a Muslim cannot attain majority by operation of law prior to completing the then prevailing age of majority of 21 years. For the purposes of his decision, Gratiaen J relied on section 3 of the Age of Majority Ordinance57, which provided as follows:-

“Nothing herein contained shall extend or be construed to prevent any person under the age of twenty-one [now eighteen(18)] from attaining his majority at an earlier period by operation of law”(emphasis added)

It was Gratiaen J’s opinion that since the plaintiff in all the circumstances of the case, had conducted himself in a manner to show that he had acquired the requisite intellectual maturity and discretion, he was de facto emancipated by the attainment of that degree of maturity that is usually associated with majority and its and he thereby become a major by operation of law. His Lordship observed-

“The question is whether a Muslim minor can, in accordance with the personal law by which he is governed, be emancipated on the happeningof some event before he reaches the age of twenty-one years, and thereby attain his majority “by operation of law” within the meaning of section 3. The scope of the Ordinance had been considered by a Divisional Bench of this Court in Muttiah Chetty v. Dingiri. “The intention”, said Chief Justice Hutchinson, “appears to have been to abolish any local law or custom which fixes any other age than twenty-one as the age of majority, but without prejudice to any rule by which a person may on the happening of any event attain majority by operation of law irrespective of his age”. In accordance with this very clear ruling, it follows and it had never been disputed that a minor who is governed by the Roman Dutch Law can, notwithstanding the provisions of the Ordinance, become


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emancipated before he is twenty-one on the happening of any event which is regarded by that system of law as determining the patria potestas.”58

The next decision that is relevant to this survey is that of the Supreme Court in AbddulCader v Razik59 which is interesting because in this case a Shaffie bride who was only 15 years and 2 months old, had contracted her marriage having “converted” herself to the Hanafi sect (madhab) andappointing her own waliin order to avoid the requirement of obtaining the approval of her father in circumstances where hewas strongly opposed to the marriage. Swan J., with whomJayatileke CJ agreed, adopted the opinion of de Sampayo J. in Narayanan v. Saree Umma et al,60and held that the conversion to Hanafi sect was genuine and that the contract of marriage(nikah)was valid.

On appeal, the said decision of the Supreme Court was affirmed by the Privy Council in A.H.M. Abdul Cader v A.R.A Razik et al.61 in which Lord Cohen, held that the principle of Muslim law that a Hanafi girl who has attained the age of puberty (bulugh) does not require a waliwas still in force in the Island since Article 64 of the Mohommedan Code of 1806 which required to approval of the parents of the bride had been repealed by Ordinance No. 27 of 1929 as amended by Ordinance No. 9 of 1934(Cap. 99), which had also expressly provided that such repeal “shallnot affect the Muslim Law of marriage and divorce, and the rights ofMuslims thereunder ”. Lord Cohen further observed as follows:-

Mr. Pritt argued that notwithstanding this provision their Lordships must look at the repealed Code and thaton anymatter covered by it must treat the Code as laying down the Mahommedanlaw which was incorporated into Ceylon. He found himself bound to admit that where the code was silent on any matter, recourse shouldbe had to text-books for the relevant Muslim Law, but he argued thatunless the Code was ambiguous on the point under consideration, recourseto the text-books on any matter covered by the code was not permissible.He relied on the observations of Schneider A.J. inRahimanLebbe andAnr. v. Hassan UssanUmmaand otherswhere he said that recourse to treatise is only had “to elucidate some obscure text in our writtenMohammedan Law or in corroboration of evidence of local custom ”.Their Lordships think that this was too narrow a limitation even when theCode was in force but in any event they agree with the SupremeCourt that the argument cannot prevail now that the Code has beenrepealed.”62

It is significant that the judicial decisions considered above show how the Sri Lankan courts have grappled with the question of minimum age of marriage in the backdrop of the important verse in the Holy Quran found inSurah

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Nisaa4:5. InMarikar v Marikar et al, as already noted, Wood Renton CJ interpreted the said verse perfectly well when he observed that the capacity to marry is dependent on the attainment of puberty (bulugh), provided that person concerned has also reached the age of discretion (rushd).

In my opinion, the view of de SampayoJ. expressed in his concurring judgment in Marikar v Marikar et aland in his later judgment in Narayanan v. Saree Umma et al, wherein he distinguished between two kinds of majority, the one relating to the capacity to marry, which was deemed to have been attained at puberty (bulugh) and majority in the general sense, which is conditional on the possession of “discretion” (rushd), “that is to say, sufficient judgment for managing property and conducting business”, appears to be contrary to common sense and public policy since it does not seek to distinguish between puberty (bulugh), which is the age at which a child first experiences sexual desires, and the age of discretion (rushd) which is the age at which the child can comprehend the responsibilities of marriage and be regarded as competent to enter into a contract of marriage.

Nor does it accord with the notion explained in the Holy Quran, 4:21 Surah Nisaathat the contract of marriage is a “solemn covenant”, as opposed to the Christian concept that a marriage is a sacrament, and signified by thepractice of expressing such covenant through the contract making formula of an offer (ijab) to marry and the acceptance (qabul) thereof in the presence of witnesses at a nikah ceremony.

It is also relevant to note that the Privy Council in A.H.M. Abdul Cader v A.R.A Razik et alsanctioned the “conversion” of a Muslim from one sect (or madhab) to another in order to overcome the problems that had arisen from the rigid classifications of persons governed by Muslim law according to the sect or madhabthey belong to, without making any effort to resolve the questions that could arise in determining the validity of marriages of persons belonging to different sects or madhabsand those who do not adhere to any sect or madhab (sect-less Muslims), which problems, it is believed, can only be solved by amending section 16 and other connected provisions of MMDA by deleting all references to sects or madhabs.

F – The concept of Public Interest or Public Benefit

In this state of authority, the question that would arise in the mind of any lawyer is whether the principle of “public interest” or “public benefit” (maslahahmusralah),may be adopted to resolve some of the questions that arise in the context of child marriage.For this purpose, it is necessary to understand the role the concept of maslahahmursalah plays in shaping up or developing associated concepts such as “Shariah” and “Fiqh” along with juridical methodology (Usul al-Fiqh) so as to provide them with the dynamism that is essential to meet modern day challenges.63 It


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is trite law that the concept of public interest or benefit(maslahahmursalah) may be utilized where there is no clear and explicit guidance in regard to any matter in the Holy Quran and Hadith, and there is no consensus of Juristic opinion that may be regarded as Ijma.64 As Kamali observes,65the concept of maslahahmursalah refers to-

“…..unrestricted public interest in the sense of its not having been regulated by the Law giver insofar as no textual authority can be found on its validity or otherwise. It is synonymous with isthislah, and is occasionally referred to as maslahahmutlaqah on account of its being undefined by the established rules of the Shariah.” (emphasis added)

If one thing is clear, the question of minimum age of marriage is fertile terrain for the use of maslahamuslahah, since as already seen, there is only one reference to it in the Holy Quran, Hadith being ambiguous, and no Ijma.

While the Holy Quran Surah Nisaa4:5clearly shows that Shariah law recognizes the concept of “age of marriage”, which is believed at least by Hanaffi jurists, to be reached when a child attains puberty (bulugh), but in this respect, Imam Shaffie differs from Imam Abu Haniffa in holding that, at least in the case of a girl, the attainment of puberty (bulugh) does not confer on her the capacity to marry on her own. This difference of juristic opinion between these two great Imams on the interpretation of the above quoted verse in Surah Nisaa, provides an opportunity to apply the concept of maslahahmursalah to decide how the law should be reformed and applied. It is significant to note that in the above quoted verse, the guardian is commanded not to give over any property belonging to an orphan until the orphan is possessed of “sound judgment” (rushd).

Since both capacity to marry (or to be given in marriage by the wali) and mahr (dower) are essential ingredients of a contract of marriage, the above quoted verse does raise the question as to whether the said verse was intended to prevent the handing over of mahr to a child being given in marriage until the child is possessed of sound judgment (rushd), which may be regarded as being attained between the ages of 16 and 18, and presumed by our courts, as already noted in Marikar v Marikar et al.,66 and Asanar v Hamid67, to be attained at the age of eighteen. As Wood Renton CJ observed at page 482 of his judgment in Marikar v Marikar et al., the “capacity to marry under Muhammadan law is dependent on the attainment of puberty, provided …….that the pubes has also reached theage of discretion.” This adoption of the criteria of the age of discretion (rushd) as a pre-requisite of legal competence to enter into the matrimonial bond and takeover the responsibilities of marriage and parenthood, is consistent with the Shariah and also public policy. In the same way as children below eighteen,as a general rule, need protection from their own immaturity as well as the

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unscrupulous elements in society, adults are generally presumed to be competent to handle their own affairs without assistance, except when they suffer from some incapacity such as insanity and other similar conditions requiring the protection of a parent or a guardian.

In this context, it is interesting to note that the question whether it is lawful for a Muslimto have consensual sexual intercourse with a girl below 12 years of age to whom he is married according to the Muslim law of the “sect to which the parties belong” though no approval of the Quazi was obtained under section 23 of MMDA prior to solemnizing the marriage, which was not registered,was considered by the Supreme Court of Sri Lanka in MukamaduLebbe v MohamadoTamby. In the course of his judgment in this case, Moncreiff, A.C.J. expressed doubt as to whether Section 363 of the Penal Code68 which made it an offence to have intercourse with a female under 12 years of age, was intended to apply “to a case of this kind.”69 However, the Muslim Law Research Committee70 has adopted the opinion of Professor H.M.Z. Farouque that “a man commits the offence of rape if he has sexual intercourse with a girl below twelve years of age even if she is his wife and irrespective of her consent”.71It is noteworthy that the legal position has been clarified by an amendment the Penal Code has undergone in 1995,72by which section 363(e) has been amended to read as follows:-

“A man is said to commit “rape” who has sexual intercourse with a woman under circumstances falling under any of the following descriptions-

(e) with or without her consent when she is under sixteen years of age, unless the woman is his wife who is over twelve years of age and is not judicially separated from the man.” (Empahsis added)

In view of this amendment, there cannot be any doubt that even the lawful husband of a Muslim girl below the age of twelve shall be guilty of rape, if he has sexual intercourse with her. This will make it imperative to consider amending section 23 of MMDA, which is in conflict with section 363 (e) of the Penal Code.

Dr. Ahamed Ibrahim has outlined some of the ill effects of child marriages in the following words:-

“Early marriages mean that the girls are not quite ready for married life. They will be poorly educated and if there is any trouble between the parties, the girls will be at a disadvantage. If the marriage breaks up, she will not be able to go out and earn a living for herself. Eventually it is the children who suffer because the mother being poorly educated and improperly trained is unable to bring up the children properly and adequately according to modern standards”.73


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HyshyamaHamin and Hasanah Segu Isadeen, have commented, on some of the serious issues child marriages can give rise to. They say-

According to women volunteers who assist affected women, one of the main reasons that husbands seek divorce from wives who are minors is because they are “unfit to have sex” and “unable to do housework”. The plight of young girls who are divorced becomes precarious. Education of young women and girls who get married early is more often than not discontinued, thereby significantly limiting their higher educational and economic opportunities. This compels them to be highly susceptible to grave financial difficulties in the event that husbands are unable or unwilling to provide maintenance, in case of death of husbands, polygamy, divorce or abandonment.74

Professor Savitri Goonasekara has pointed out that “since Sri Lanka became a party to the U.N. Convention on Consent to Marriage and the Minimum Age of Marriage, 1962 under which Sri Lanka is bound to take steps to abolish such customs, ancient laws and practices that conflict with the said Convention, there is a “clear basis for introducing reforms even if they conflict with traditional concepts of the Muslim Law in Sri Lanka”.75 What is probably of greater concern to Muslims of Sri Lanka is whether such reform could be accommodated within the Shariah, and the procedure in section 23 of the MMDA has provided a means of reconciling the principles of the Shariah with the needs of society with due regard to the best interests of the child. In this context, it is worth stressing, as AbdulalaMaududi does, that inregard to “such affairs, the function of the legislature is to understand the principles and fulfil the intention of the law-giver”.76

It has been noted that child marriages could be rationally justified in exceptional circumstances,such as when there is a philanthropic person willing to marry an orphan girl who has no one else to look after her needs including the need to provide her with education. Adoption, in the sense sanctioned by Islam77, may be a better way of dealing with such situations. The justification often advanced for giving female children in marriage when they are too young to even comprehend the responsibilities of marriage and motherhood, is the poverty of their parents, and if they are orphans, the difficulties in taking care of them and providing them with food, shelter, health care and education. It is also argued that when these children grow up, it will be more difficult to find them suitable partners, as they become less attractive to suiters.

These arguments overlook the collective and continuing responsibility of the community to help those in need, through zakat and sadaqa, and the fact that even though a marriage guardian (wali) is empowered by the teachings of the Shaffie school of thought (madhab) to give away their daughters in marriage before they attain the age of discretion (rushd),

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they too would find it difficult to help these girls when they are deserted or divorced by their husbands, and they are unable to help themselves due to their immaturity and lack of education or other skills. It is feared that in these circumstances, these girls may be driven by their circumstances to lead lives of ill repute.

Considering the above, the question may be posed as to whether the fiqhrelating to the minimum age of marriage may be developed through the concept of maslahahmursalah in the public interest so as to regard the attainment of the age of eighteen as the age at which a male or female may ordinarily be capable of entering in to a contract of marriage, as an attribute of majority. The protective powers of the marriage guardian (wali) would naturally come to an end when a child reaches the age of majority and embraces adulthood, unless the major suffers from some incapacity such as insanity. This does not mean that the major’s relationship with his or her parents would necessarily be severed or a bride will be deprived of her privilege of being contracted in marriage by her father or other guardian as her wali at the nikah ceremony. It only means that theapproval of the waliof a bride will no longer be an essential legal pre-requisite at the nikah ceremony. If the law is reformed in this manner and the minimum age of marriage is fixed at eighteen years to coincide with the attainment of majority, the question arises as to how section 23 should be amended.

Although section 23 of MMDA, as it stands at present, is applicable only to a girl below 12 years of age, it is felt necessary to amend section 23 to include within its ambit a boy or girl below 18 years, and to expressly prohibit the solemnization and registration of a marriage of a person below 18 years, unless the Quazi Court has exceptionally approved the marriage on the basis of the best interest of the minor child concerned. However, it is desirable to have a lower limit for the grant of approval for such marriages, and it is considered best to provide in section 23 that the Quazi’s power to grant approval for a minor child’s marriage should not be exercised unless and until such child has attained 16 years of age.

In fact, there is already some consensus emerging in the Muslim community on the urgent need to amend section 23 of MMDA in the said linesto empower the Quazi to inquire into and authorize such marriages of children between 16 and 18, where appropriate,in the best interest of the child in question.This suggestion has been made on the basis that it will thengive the opportunity for a child to complete its education at least up to the General Certificate of Education (Ordinary Level) Examination before it is given in marriage. These reforms will then be both consistent with the Shariahas well as the Constitution of Sri Lanka and other applicable statutory provisions, such as the Age of Majority Ordinance, and also accord with Sri Lanka’s


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international obligations underthe Convention on the Elimination of All Forms of Discrimination against Women and theConvention on the Rights of the Child.

The proposed reforms will also give due weight to the protection of the intellect (aql), which is one of the five essentials objectives of Shariah under the concept of the Maqasid Al-Shariah,the other four objectives of the Shariahbeing the (1) preservation of the self, or one’s Identity; (2) the protection ofone’s religion (Deen); (3) the preservation ofone’s lineage or pedigree and (4) the protection of one’s property or wealth.78Conferring on the QuaziCourt the power to authorize in exceptional circumstances the marriage of a person between the ages of 16 and 18 in the best interests of the person concerned will avoid the existing inconsistency between the provisions of the Muslim Marriage and Divorce Act (MMDA), the Constitution of Sri Lanka and other statutory provisions.

G - Conclusions

The age of marriage is not a mirage, as some claim. It is a reality that is adverted to in the Holy Quran, Surah Nisaa 4:6. However, at what age majority and its attribute of capacity to marry without the approval of a parent, guardian or court is attained, has not been explicitly laid down in the Holy Quran. It is this omission, that has given rise to juristic disagreement between Imam Abu Haniffa and Imam Shaffie in this regard. Perhaps a minimum age of marriage was not clearly prescribed in the Holy Quran since the Almighty God (Allah) intended to provide flexibility in this regard for national Rulers or Legislatures to prescribe a suitable age consonant with the needs of the timeand place. As Amina Hussan79 has observed,

“In ancient societies, pubescence was the age of marriage. Even as far back as 1275 there is a documented instance in England, when Sir Edward Coke determined that the age of marriage was the age of consent. At that time the age of marriage was 12. Life expectancy in many primitive and medieval societies was short by today’s standards. Men had a life expectancy of between 30 and 50 years and with so many women dying either through illness or in childbirth, it would have been surprising if they lived even that long. Therefore, it would have been considered practical in many ancient societies to consider marriage as being acceptable once the boy and girl hit puberty.”(emphasis added)

With improved health standards, life expectancy has considerably increased, and the growing complexities and demands of modern societies have made it incumbent on those who contemplate matrimony and parenting to prepare themselves to take on new responsibilities through education, skills development,

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personality and intellectual growth and generally greater preparedness for marriage. This makes it essential to resolve the existing conflict between the provisions of the Muslim Marriage and Divorce Act (MMDA)80 and the Constitution of Sri Lanka,the Age of Majority Ordinance81 and the Marriage Registration Ordinance.82The MMDA provisions which do not lay down a minimum age of marriage,have come into conflict with not only section 363(e) of the Penal Codebut also the public interest. Abuses arising from child marriage are facilitated in practice by the provisions in MMDA that permit marriages to be validly solemnized without registering the same, and the prevalent practice of falsifying the ages of children for the purpose of registering marriagesof children of tender years, which are statutory loopholes that need to be speedily remedied. There is urgent need to protect children and young persons from these social evils by amending the relevant legislative provisions.

In conclusion, it is necessary to point out that the United Nations International Children’s Emergency Fund (UNICEF) has, in one of its recent publications, described child marriages as a “fundamental violation of human rights”, as a “form of violence against children” and which “can lead to a lifetime of disadvantage and deprivation.” It has documented statistics that show that South Asia has the highest rates of child marriage in the world. According to its findings, 45 percent of all women aged 20-24 years reported being married before the age of 18. Almost one in five girls (17%) are married before the age of 15.83 However, the menace of child marriage is not confined to South Asia, and may be conceived as a global problem84, though very much more prominent and noticeable in South Asia region due to the greater numbers involved.

It is significant to note that in recent times some cases of cross-border child marriages and abuse have raised public concern. In one recent case, a 41 year old Malaysian man took a Thai Muslim girl who was only 11 years old, as his third wife. The nikah took place in one of the three southern provinces of Thailand, where thestrict Thai child protection laws that made it an offence for anyone to marry and have sex with a girl under 17 years, do not apply. The newly-wed couple crossed over to Malaysia as husband and wife on the same day, causing a national outcry in Parliament and protests on the streets. In Malaysia, a man can legally marry girls under 18 only with the approval of theSyariahCourt, and the Malaysian man involved in this notorious case who pleaded guilty to polygamy and conducting the marriage without the court’s permission, was fined 1,800 Ringgits.It is also reported that the imam who conducted the nikah in this case had got the man to promise that he will not have sex with the girl until she attained age, but medical examinations conducted in Malaysia showed that the man did not keep his promise.As far as Thailand was concerned, there was no issue, as cross-border child marriages are lucrative business,


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not only for imams who conduct nikah ceremonies but also for the facilitators of such unions.85Unless urgent action is taken to remedy the malady arising from the absence of more definitive provisions in MMDA relating to the minimum age of marriage, there is a danger of Sri Lanka succumbing to this type of cross-border child marriage and abuse.

There is a tendency in the Muslim community of Sri Lanka to side step problems of this nature that affect an important segment of Sri Lankan women on the basis that child marriages and abuse are essentially global issues, and it is not reasonable for international bodies and activists to demand reform only in Sri Lanka. While there is some superficial merit in this way of thinking, and there is considerable global awareness and even international initiatives to deal with the problem on a global scale, all that we can do as a nation is to put our house in order when we can. After all, those who are affected by the loopholes in the law that have facilitated child marriages and abuse among Muslims in Sri Lanka, are our own children.

Endnotes

1 Much has been written about the minimum age of marriage and child marriage in Sri Lanka. See for instance, S. Goonesekere and H. Amarasuriya, Emerging Concerns and Case Studies on Child Marriage in Sri Lanka (UNICEF, 2013)accessible at: https://www.unicef.org/srilanka/2013_Child_Marriage_Case_Studies.pdf, G. Chandrasekera, A Minimum Age of Marriage for all Citizen in Sri Lanka, (Women’s Education & Research Centre, 2017) http://www.wercsl.org/establishing-a-minimum-age-of-marriage-for-all-citizens/, Amina Hussain, The Age of Reason, the Age of Marriage, Sunday Times (9 April 2017) http://www.sundaytimes.lk/170409/plus/the-age-of-reason-the-age-of-marriage-236073.html,BBC News, The Wounded Victims of Sri Lanka’s Child Marriage Law (20 June 2017) https://www.bbc.com/news/world-asia-39898589 and Bisthan Batcha, Child Marriage in the Muslim Sri Lankan Community (31 October 2017),https://bisthanbatcha.wordpress.com/2017/10/31/child-marriage-in-the-muslim-sri-lankan-community/

2 Muslim Marriage and Divorce Act No. 13 of 1951 as amended by Act No. 31 of 1954, Act No. 22 of 1955, Act No. 1 of 1965, Act No. 5 of 1965, Act No. 32 of 1969, Law No. 41 of 1975 and Act No. 24 of 2013.

3 “Middle English” is the English that was in vogue between the 12th and 15th centuries. 4 See, Marriage, a History(2005), https://www.psychologytoday.com/intl/articles/200505/

marriage-history5 See,MukamaduLebbe vs MohamadoTamby 1 Muslim Marriage &Divorce Law Report

(hereinafter cited as M.M.D.L.R.) 40 and Muheidenbawa vs Seylathumma 2 M.M.D.L.R. 53.

6 Sideek v Shiyam, [ 2006] 1 Board of Quazis Law Reports 129.

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7 For the meaning of fiqh and the correlation between shariah and fiqh, see Saleem Marsoof MalahahMursalah as a basis for Muslim Law Reform in Sri Lanka, Meezan (Law Students’ Muslim Majlis, (2017) Vol 51 p. 32. See also, Razmara Abdeen, Sectarianism in Islam, Meezan (Law Students’ Muslim Majlis, (2017) Vol 51 p. 179.

8 See,MukamaduLebbe vs MohamadoTamby, supra note 5; Muheidenbawa vs Seylathumma, supra note 5.

9 Art. 1 of the UN Convention on the Rights of the Child, which was adopted in 1989 in terms of General Assembly resolution 44/25 of 20 November 1989 and became binding on all member states of United Nations except the United States in 1990. For detailed discussion of the Convention, see Part D of this article.

10 UN Convention on the Elimination of All Forms of Discrimination against Women adopted on 18 December 1979 and accessible at: https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx

11 See, Muheideenbawa vs Seylathumma, 2 M.M.D.L.R. 53 at page 55. The Quazi Board of Quazis consisted of M.H.M. ShamsudeenEsq, M.C. Abdul CaderEsq, M.I.M HaniffaEsq and M.M. Maharoof Esq.

12 This Committee is also known as the MMDA Committee or the Marsoof Committee. The Report of the MMDA Committee has been uploaded into the website of the Ministry of Justice and Prison Reform and is accessible at:https://www.moj.gov.lk/web/index.php?option=com_content&view=article&id=114&Itemid=230&lang=en

13 ibid., paragraphs 6.7.09 to 6.7.11 at pages 86 to 90. A more user-friendly version of the Report may be accessed at the hyperlink towards the end of the article entitled “MMDA - Colombo Telegraph Leaks Complete SaleemMarsoof Committee Report” (2 July 2018) at:https://www.colombotelegraph.com/index.php/mmda-colombo-telegraph-leaks-complete-saleem-marsoof-committee-report-leaked-report-redacted-incomplete-and-distorted/

14 See, Bisthan Batcha, Child Marriage in the Muslim Sri Lankan Community, supra note 1.15 Supra notes 12and 13at paragraph 6.7.10 pages 87 to 89, particularly in Table B.16 ibid., paragraph 6.7.10 at page 89.17 Al Islam.org, Importance of Marriage in Islam, at: https://www.al-islam.org/islamic-

marriage-handbook-syed-athar-husayn-sh-rizvi/importance-marriage-islam18 The Evidence Ordinance No. 14 of 1895, as subsequently amended.19 The Penal Code No. 11 of 1887, as subsequently amended. 20 It is noteworthy that this provision as it originally stood, provided for a liability threshold

of “eight years”, which was increased to “twelve years” by a recent amendment by section 2 of the Penal Code (Amendment) Act No. 10 of 1918.

21 This provision too was amended by section 3 of Act No. 10 of 1918 substituting for the words “eight years of age” that was then in the Penal Code, with the words “twelve years of age” and also replacing the words “under twelve” with the words “under fourteen”.


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22 The Age of Majority Ordinance No. 7 of 1865 provided that a person would be a major upon attaining 21 years of age, which was amended by Act No. 17 of 1989 substituting 18 years in place of 21 years as the age of majority.

23 ibid., section 3.24 A document issued by a prince or sovereignby virtue of which a person Is entitled to act

as if he was of full age. 25 The Marriage Registration Ordinance also known as the General Marriages Ordinance

No. 19 of 1907, as subsequently amended.26 ibid., section 22.27 Assanar v Hamid, (1948) 50 NLR 10228 The UN Convention on the Rights of the Childwas adopted in 1989 in terms of General

Assembly resolution 44/25 of 20 November 1989 and became binding on member states of United Nations except the US in 1990. The text of the Convention is accessible at: https://www.ohchr.org/en/professionalinterest/pages/crc.aspx For relevant Fact Sheet, see: https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-11.en.pdf

29 See, the Administration of Muslim Law Act 1968 of Singapore as amended by as amended by Act No. 29 of 2008. Rules made under the said Act now require the parties to a marriage to follow a preparatory course when either of the parties is a minor below the age of 21 years, which is the age of Majority in Singapore.

30 See, Section 10 of the International Covenant on Civil and Political Rights (ICCPR) Act No. 56 of 2007.

31 The UN Convention on the Rights of the Child, supra note 28, Art 2.32 The Covenant on Civil and Political Rights (ICCPR) Act, supra note 30.33 Ibid., section 5(1).34 ibid., section 5(2). 35 For an extremely interesting exposition of the various sects and schools of Muslim law,

see C.G. Weeramantry, Islamic Jurisprudence: An International Perspective, (1988), pages 46 – 58.

36 Affefudeen v Periatamby (1912) 14 NLR 295 at p.300 per Middleton J.37 See,MangandiUmma v LebbeMarikar(1908) 10 NLR 1;Marikkar v Marikkar(1916) 18

NLR 446;MohameduCassim v Cassie Lebbe(1929) 29 NLR 136; In re Nona Sooja(1931) 32 NLR 63;UmmulMarzoona v Samad (1979) 79 NLR 209.

38 See, section 16 of the Muslim Marriage and Divorce Act (MMDA), supra note 2. See also notes 6 and 7supra and the accompanying text.

39 Holy Quran Surah Al-An’am6:159 (Abdullah Yusuf Ali Translation).40 These problems are discussed in detail in the Report of the Committee appointed to

consider and recommend amendments to the Muslim Marriage and Divorce Act, supra notes 12 and 13, paragraphs 6.6.06 to 6.6.07 pages 75-76.

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41 Holy Quran Surah Nisaa 4:6 (Abdullah Yusuf Ali Translation).

42 The Beginning of Sexual Life: Bulugh and Rushd, Al-Islam.org, https://www.al-islam.org/religion-al-islam-and-marriage/beginning-sexual-life-bulugh-and-rushd

43 Marikar v Marikar et al, (1916) 18 NLR 481 at 482.

44 Assanar v Hamid,supra note 27.

45 Muhammadan Law Vol II pages 467 to 468.

46 For the Shaffie view, see Nawawi, Minhaj Et Talibin, Book 33, Chapter I, Section 4, at 285. For the opinions of the Hanafi, Maliki and Hambaliscools, see Hamilton, Hedaya Volume, I, Book II. Chapter II, 36-37.

47 Nawawi, Minhaj Et Talibin, Book 33, Chapter I, Section 4.

48 K.N. Ahmed, Muslim Law of Divorce (1978) 142.

49 Muheideenbawa v Seylathumma 2 MMDLR 53.

50 NabisaUmma et al. v Salih 2 MMDLR 118.

51 The Age of Majority Ordinance, supra note 22, provided that a person would be a major on attaining 21 years of age, which was amended by Act No. 17 of 1989 substituting 18 years in place of 21 years as the age of majority.

52 Marikar v Marikar et al, supra note 43.

53 ibid., at p 482.

54 Narayanan v Saree Umma et al (1920) 21 NLR 439.

55 The Age of Majority Ordinance, supra note 22.

56 Assanar v Hamid, supra note 27.

57 The Age of Majority Ordinance, supra note 22.

58 Assanar v Hamid, supra note 27 pages 105-6.The Latin term patria potestasrefers to the paternal power, which in Arabic is equivalent to the power of jabr.

59 (1950)52 NLR 156.

60 Narayana v Saree Umma et al, supra note 54.

61 (1952) 54 NLR 201.

62 ibid., at page 203.

63 See generally, Nyazee, Islamic Jurisprudence, Malaysian Edition 2003 (The Other Press) and Kamali, Principles of Islamic Jurisprudence, Islamic Texts Society,Cambridge, UK (1997 reprint). On maslahamursalah, see Abdulmalik, Maslaha Al Mursalah; the Concept, Sources, History and Benefits as a Source of Islamic Law, https://www.academia.edu/6236476/Maslaha_Al_Mursalah_the_concept_sources_history_and_benefits_as_a_source_of_Islamic_Lawpages 6 to 7. See also, for the Sri Lankan context, Saleem Marsoof, MaslahahMursalah as a Basis of Muslim Law Reform in Sri Lanka,[2016-17] Meezan Vol. 51 page 32, accessible online at: https://www.academia.edu/34598083/Maslahah_Mursalah_as_a_basis_for_Muslim_Law_Reform_in_Sri_Lanka


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64 Ijma is the third source of Islamic Law after the Holy Quran and Hadith, and means unanimous opinions of the Imams. Where in regard to any matter there is no clear guidance in Quran and Hadith, and there is no Ijma, maslahahmursalah, as an aspect of Ijtihad, becomes applicable.

65 Kamali, supra note 63, page 267.

66 Supra note 43.

67 Supra note 27.

68 The Penal Code, Ordinance No. 2 of 1883, as subsequently amended.

69 1 M.M.D.L.R. 40,42

70 In its report published in (1978)4 Colombo Law Review 57, 60.

71 H.M.Z.Farouque, ‘Muslim Law in Ceylon’, 4 M.M.D.L.R. 1, 12.

72 The Penal Code (Amendment) Act No. 22 of 1995.

73 World Muslim League, Volume III No. 1 63-64.

74 HyshyamaHamin and Hasanah Segu Isadeen, “Unequal Citizen: Muslim Women’s Struggle for Justice and Equality in Sri Lanka”, page 8, accessible at:www.musawah.org/sites/default/files/UNEQUAL%20CITIZENS%20Study%20-%20Hyshyama%20Hamin%20%26%20Hasanah%20Cegu%20Isadeen%20%28optimisé%29.pdf

75 Savitri Goonasekara, “Sri lanka Law on Patent and Child” (1987) at p. 318.

76 Abdulla Maududi, “Islamic Law and Constitution’, (1960) 78.

77 See further, Saleem Marsoof, Adoption of Children in Islam and the Muslim Law of Sri Lanka, [2008] Meezan pages 1 to 5 accessible at: https://www.academia.edu/34554763

78 The five ultimate objectives of the Shariah consist of the preservation of (1) the self, or one’s Identity; (2) reason or one’s intellect (akl); (3) one’s religion (Deen); (4) one’s property or wealth; and (5) one’s lineage.See, Dar Al-Ifta, Maqasid Al-Shari’ahaccessible at: http://www.dar-alifta.org/Foreign/ViewArticle.aspx?ID=499&CategoryID=3. For a clear explanation, see also Shaya’aOthman, Shariah and Maqasid al-Shariah – A Brief Overview,accessibleat: http://islamicstrategymanagement.blogspot.com/p/maqasid-al-shariah.html

79 Amina Hussain, The Age of Reason, the Age of Marriage, Sunday Times (9 April 2017), supra note 1.

80 Supra note 2.

81 Supra note 22.

82 Supra note 25.

83 See, UNICEF, Child Marriage, accessible at: https://www.unicef.org/rosa/what-we-do/child-protection/child-marriage.For a related link, see: https://www.unicef.org/protection/57929_58008.html

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84 According to a Humanium Report, in the United Statesmore than 3 million cases of child abuse are reported. A lot of them have been subject to physical violence, and almost 10 % of these have been sexually abused. The Humanium Report which highlights child abuse country by country is accessible at: https://www.humanium.org/en/abuse/

85 Reported in the Guardian by Hannah Ellis Peterson under the title The Dark Secret of Thailand’s Child Brides, accessible at the following link:https://www.theguardian.com/world/2018/sep/01/thailand-malaysia-muslim-child-forced-marriageSee also, for a further development, FMT Reporters, No Child can Consent to Marriage, Latheefa tells Wan Azizah, https://www.freemalaysiatoday.com/category/nation/2018/09/20/no-child-can-consent-to-marriage-latheefa-tells-wan-azizah/


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CHILD ABUSE

Professor Ravindra FernandoMBBS, MD, FCCP, FCGP, DMJ(Lond), FRCP(Lond) FRCP(Glasgow), FRCP(Edin), FRCPath(UK

Emeritus Professor of Forensic Medicine and Toxicology, University of Colombo Senior Professor of Forensic Medicine, General Sir John Kotelawala Defence University

Child Abuse can be defined as “Commissions or omissions leading to the actual or potential damage to the health and development and exposure to unnecessary suffering of a child.” A child is considered abused if treated in a manner unacceptable in a particular society at a particular time.

Often the abuser is a parent, related caregiver or a male friend of the mother. Occasionally it is caused by an unrelated person. It exists in all ethnic, religious, educational and socio-economic groups.

It is higher in families with more life stresses and limited socio-economic resources. Parents who abuse children may have been abused as children or spouses or may be addicted to drugs or alcohol.

Types of abuse can be classified as follows:

Physical abuse : Persistent repetitive injury to a child which is non-accidental in nature and often caused by a person in a position of trust.

Sexual abuse : The involvement of dependent, developmentally immature children and adolescents in sexual activities they do not fully comprehend, to which they are unable to give informed consent or which violate social taboos of family roles.

Neglect : Failure to provide adequate care, food, protection and the physical and emotional environment necessary for the healthy development of the child.

Emotional abuse : Act of commission or omission on the part of parents or other responsible caregivers that have caused or could cause serious behavioural, cognitive, emotional or mental disorders in the child (eg. rejection, isolation, terrorizing, ignoring, corrupting).

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Munchausen Syndrome

by proxy : Parents forcing the child into a having an inappropriate illness.

Intentional drugging or poisoning:

Child labour : The use of children of less as domestic aides or employees.

Conscription to armies: The use of children and adolescents in armed conflicts they do not truly comprehend or to which they are unable to give informed consent or which violates social taboos of family roles and which adversely affects the child’s right to unhindered growth and identity as a child.

Characteristic features seen in child abuse are:

1. Delay in seeking medical help by parents or care-giver.

2. Inconsistencies in history - lack of details, changing.

3. History incompatible with injury.

4. Parents or care-givers pre-occupied with other issues rather than the child.

5. Child’s interaction with the parent or care-giver is withdrawn, unhappy, frightened.

6. Hostility of parents and care-givers and lack of concern regarding incident.

It is important to diagnose child abuse without delay for the protection of child and other siblings from further harm and death, to ensure the further healthy development of the child and to ensure that the disordered parenting is corrected early to re-establish a healthy family relationship.

When doctors take the history from the parent or care-giver,

• It is necessary to take a detailed history of incident/s from parent or caregiver.

• Exclude other medical conditions which could produce similar injuries (eg. bleeding disorders, bone disorders).

• Take a detailed social history of the family and parents’ childhood.

• Take a detailed history of the child’s growth and development.

• Keep an open mind and avoid confrontation with parents or care-givers.

• Properly document events.

• Where possible, interview the child separately from the parents or care-givers.

• Record whatever the child says in his/her own words.

• Do not ask leading questions from the child.


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Medical examination of the child is extremely important. The doctor should examine and document the following:

1. General appearance: growth and development/demeanour (eg. failure to thrive, delayed milestones, short stature, crying child, withdrawn, frightened -‘frozen watchfulness’).

2. Injuries: There can be single or multiple injuries at different stages of healing.

(a) Abrasions: imprint abrasions of a lash mark- (from cane, ruler etc.).

(b) Contusions: face, ears, chest/ arms/ legs-multiple similar bruises resembling a grip mark.

(c) Lacerations: frenulum of upper lip.

(d) Haemorrhages

(e) Eye injuries including retinal haemorrhages

(f) Bite marks

(g) Burns and scalds: eg. cigarette burns, scalds in buttocks

(h) Fractures:

• Multiple fractures in different stages of healing.

• Single fracture with multiple bruises.

• Injury to metaphyses and epiphyses of bones-due to acceleration/deceleration forces when the child is shaken by the body, arms or legs.

• Rib fractures.

• Skull fractures with associated intra-cranial injury- sub-dural haemorrhage.

A skeletal survey is needed particularly when:

• The history is suggestive of abuse.

• Multiple bruises and localized pain are present in a limb.

• The child has a limp/refuses to use a limb.

• The child is very young - less than two years.

(i) Visceral injuries:

• Blunt blows to the upper abdomen could cause tears in the duodenum, jejunum, and pancreas.

• Injuries to liver and spleen less common.

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It is essential to consider a differential diagnosis and exclude the following:

Abnormal bleeding conditions: haemophilia, leukaemia,

Bone diseases: Osteogenesis imperfecta (inherited connective tissue disorder with bone fragility, osteoporosis, lax ligaments and fragile skin), Rickets (shows periosteal new bone formation, epiphyseal changes), Congenital syphilis, Osteomyelitis, Copper deficiency, Vitamin A intoxication.

Skin conditions such as contact dermatitis, impetigo, urticaria, nappy rash.

In apparent sexual abuse consider the possibility that children may themselves insert foreign objects and cause damage.

There should be laboratory investigations such as bleeding time, clotting time, platelet count and full blood count. Other investigations depend on the clinical findings.

Strategies for effective management are important to prevent child abuse. Awareness of the problem of abuse and recognition of different forms of abuse is essential when confronted with a case of abuse. It is recommended that if suspected of abuse, the child should be managed in a hospital ward. The siblings of the child should also be examined.

Protection of the child is of paramount importance. There should be a referral to Police, a Judicial Medical Officer, Paediatrician and a Probation Officer. Involvement of a multi-disciplinary team of professionals which may include a psychologist and a psychiatrist is required and a case conference must be held with all stakeholders.


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THE LOGISTICIAN CUM LAWYER

Prof. Prathibha Mahanamahewa Founder Dean Law, Kothalawala Defense University and Senior lecturer in Law, University of Colombo.

PhD in Law, University of Queensland, Australia. Currently, Dean Law, Faculty of Law, University of Technology Jamaica West Indies.

Dr. Lalith EdirisingheCommenced carrier in 1981 as a trainee Cadet Officer in Merchant Navy under Ceylon Shipping Corporation.

PhD in Transportation planning and Logistics Management. Editor of the Research for Transport and Logistics Industry and CINEC Academic Journal. Reviewer in many international journals. 37 years’ work experience in the fields of maritime; Marketing, supply chain management in both government and private sector organizations.

Introduction

Logistics, in general, is defined as the detailed organization and implementation of a complex operation. Before it became a buzz word in business community the logistics originated in the military as the indispensable activity of organizing the movement, equipment, and accommodation of troops. However, today this word mainly signifies the commercial activity of transporting goods to customers. On the other hand, a person who practises or studies law, a legal practitioner, attorney, legal officer, legal adviser, legal representative, or a member of the bar is considered as the lawyer. Therefore, from the outer perspectives one cannot realize a relationship between these two key words. This article attempts to appraise the connection between the two aspects. Logistics performance is strongly associated with the reliability of supply chains and the predictability of service delivery available to producers and exporters (Edirisinghe & Muller, 2013)

Logistics refers to a series of services and activities, such as transportation, warehousing, and brokerage, that help to move goods and establish supply chains across and within borders (Arvis, et al., 2016). As the terms suggest international logistics, transportation and supply chain are full of complicated series of processes. These activities are performed under different international trading contexts and the law that applies in such conditions is always a puzzle. Therefore, the distribution,

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transportation, and logistics industry is a tough environment governed by the laws of distribution. Yet, companies also need to face economic crime or fraud which forces them to navigate the regulatory minefield not only in their home country, but also in every single territory in which they hold operations. The fact is that 45% of transportation and logistics companies have experienced fraud in one form or another over the last two years. Although the damage is not counted in human lives, it remains damaging in many ways and includes substantial financial costs, as well as damaging employee morale, the vendor-supplier relationship, or the company’s competitive edge (Earle, 2013). Logistics is the function responsible for the flow of materials from suppliers into an organization, through operations within the organization and then out to customers (Edirisinghe, 2017). Maritime and logistics performance are complimentary phenomena. Improving logistics performance is at the core of the economic growth and competitiveness agenda (Arvis, et al., 2016).

Cargo theft may occur not only in freight-forwarding and storage operations, but also during transportation or in the process of loading and unloading. The risks of cargo theft have been increased by extensive subcontracting and use of owner-drivers. On the other hand, the industry is trying to reduce the risks of petty pilferage through sealed containers and track and trace systems. Up to 73% of the companies operating in the distribution, logistics, and transportation industry have been confronted with this type of fraud in one form or another (Earle, 2013). The global logistics market, in terms of revenue, is set to expand from US$8.1 trillion in 2015 to US$15.5 trillion by 2023, registering a compound annual growth rate (CAGR) of 7.5% from 2015 to 2024. By volume, the market is expected to clock in a 6.0% CAGR from 2016 to 2024 (www.transparencymarketresearch.com, 2018). With this kind of industry growth, the next few years will see a giant leap in the need for qualified workers in this field (Hughes, 2015) . Most logistics disputes are raised due to problems in practice and errors in operations and documentation. It is therefore important for any logistics firm to have a logistics lawyer as he/she would be the only one able to put the governance for the logistics operations in the firm in order to avoid such problems. Furthermore, the logistics lawyer is the most suitable person to resolve any disputes in logistics transactions (Hawawy, 2011).

The Role of Law in logistics

When the Icelandic volcano erupted in 2010, the reactive response of European transport ministries and civil aviation authorities resulted in uncertainty and delays in restarting air traffic. There was a failure to recognize in advance the potential threat presented by such ash clouds, along with inflexible aviation protocols and the


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absence of any pre-existing agreement on safe ash levels. Similarly, well-intentioned government initiatives such as air cargo screening can impede the efficient flow of transport networks (Sarah, 2012). There are many supply chain and transport concerns that have increased organizations’ risk profile. Therefore, legislation and regulation play a key role in the dynamic supply chains. Controlling logistics costs allows companies to maintain a competitive edge, since lower logistics costs translate into competitive external trade (Edirisinghe & Jayathilake, 2014). Apart from the basic operational costs the legal aspects sometimes create serious drawbacks when it is not handled by the competent law professionals.

In historical perspectives the word logistics commenced with the inception of military law in the west for planning and distributing goods for various military targets, but law related to commercial logistics existed in ancient Greece under “Lex Macatoria”. The word Logistics commercialised and inserted to the business law branch under English common law at the end of the second world war with the concept of Liza fare. Today the term law in logistics has been used by the general public as a synonym for the process of documents related to transportation of goods from the manufacturer to the end user of the product. However, in academia, the law in business logistics means the process of planning, implementing, and controlling the efficient, effective flow and storage of goods, services, and related information from the point of origin to the point of consumption for conforming to customer requirements.

The logistics and transportation of goods by sea, air, rail and road is increasingly global and is influenced by a legal method of national and international laws. This world of logistics and transportation is highly competitive and lucrative for companies to remain in this competitive field many clients of these companies have complaint to various authorities of mishandling and negligence activities done by relevant parties to the transportation contracts and other types of documents. There is a timely requirement for several companies involved in international transportation and procurement process for proper guidance from lawyer’s expertise and research this area of law. Companies could once rely on experts that specialised in specific fields like maritime law or rail transportation law with their experience and skills could prevent many legal suits against the company and their will and finally theses lawyers can save millions of dollars which spend for litigation. Therefore, Employers in Import and export business always recruit lawyers have completed their higher legal studies in logistics and transportation law Some countries have promulgated laws on logistics with the intent of better defining the sector and its operating environment (Arvis, et al., 2016).

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How the knowledge in law can help logistics?

Thanks to globalization, lean processes, and the geographical concentration of production, among other factors, supply chain and transport networks are more efficient than ever before. This increasing sophistication and complexity, however, is accompanied by increasing risk (Sarah, 2012). The legal department of each company must be fully equipped with all the International conventions and rules related to logistics and the domestic law because the company can save millions of dollars unnecessary paying for the parties in breach of a contract. Therefore, any documents prepared by the logistics department with simple mistakes and gaps in theses transportation documents the companies may face severe legal consequences in courts. There are several UN conventions and Hague rules as well as Multi model transportation law by UNESCO related to contracts of international transportation of good by sea and air. Sri Lanka in 1982 directly adopted The Hague rules to 1982 carriage of Goods by Sea act Sri Lanka. Attorneys possessed with clear knowledge in laws related to Logistics and transportation can instruct the companies involved in international export and import business about negotiating and bargaining of contracts, necessary clauses related to contracts and terms and conditions, disputes resolution clause, preparation and peruse documents related to international transportation etc. Therefore, logistics education and training play a key role. In any country there exists certain popular higher education stream. For example, in Sri Lanka, Engineering, Medicine, Accountancy, Information technology, and Marketing are the most popular higher education streams (Edirisinghe, Zhihong and Shen, 2016). However, logistics is still not a buzz word in the society as far as Sri Lanka is concerned.

Global Logistics Performance

The globalization has increased the need for interconnectedness for the respective countries to cross their borders (Edirisinghe, 2013). The Global Competitiveness Report considers twelve variables for ranking that comprise institutions, infrastructure, macroeconomic framework, health and primary education and higher education and training. Logistics performance both in international trade and domestically is central to the economic growth and competitiveness of countries, and the logistics sector is now recognized as one of the core pillars of economic development (Arvis, et al., 2016). Thanks to globalization any country is now interdependent rather than independent. In a global economy, no nation is self-sufficient thus many countries are involved at various levels in trading and manufacturing and lead to produce more efficiently in some sectors (Edirisinghe


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& Ratnayake, 2015). Global logistics entails trade-offs in facility location, distribution networks, the routing and scheduling of deliveries by different modes of travel (e.g., air, water, truck, rail), procurement, and the overall management of international supply chains. In an increasingly global economy, then, logistics has become a very important matter in the success or failure of an organization. It is an integral part of supply chain management that involves not just operations management considerations, but production engineering and regional science issues as well (Bookbinder, 2013). Although risks have increased, there are concerns about the ability of organizations to address this new risk profile (Sarah, 2012). However, the fact remains that the global integration in product, capital and labour markets has resulted in a more efficient allocation of economic resources in terms of global utilization. For every business, there are different logistics needs and diverse ways to evaluate operational success. A static logistics strategy will cause serious harm to customer service and the bottom line. It’s detrimental to not benchmark success or direction for improvement (PLS Logistics Services, nd). The results of Connecting to Compete 2016 point to Germany as the best performing country, with an LPI score of 4.23, and Syria as the lowest, with a score of 1.60 (Arvis, et al., 2016). Cargo logistics assigns one or more out of five key transport modes namely, water, air, rail, road, and pipelines. Shipping, the increasingly efficient and swift method of water transport, led to greatly reduced transport costs, and supported a vast increase in international trade (Edirisinghe, 2016). The liner shipping connectivity index illustrates trends in different countries (UNCTAD, 2017). The index, uses five components: the number of ships deployed to and from each country’s seaports, their combined container-carrying capacity, the number of companies that provide regular services, the number of services and the size of the largest ship.

Logistics insights and the logistics review of Sri Lanka

Logistics performance depends on the availability to traders of reliable supply chains and predictable service delivery. Global supply chains are becoming more complex, and the safety,

social, environmental, and other regulations affecting traders and operators are becoming more demanding (Arvis, et al., 2016). Most enterprises have logistics and transportation risk management protocols that can address localized disruptions. Global supply chain risks, however, can have cascading and unintended consequences that no one organization can mitigate (Sarah, 2012). The World Bank’s Logistics Performance Indicator (LPI) analyses countries in six components namely,

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The efficiency of customs and border management clearance

The quality of trade and transport infrastructure

The ease of arranging competitively priced shipments

The competence and quality of logistics services

The ability to track and trace consignments

The frequency with which shipments reach consignees within scheduled or expected delivery times.

From above key pillars, it is evidenced the enormous contribution of law under various perspectives. A global shipment commenced because of an international trading activity. In economic terms, shipping is a “Derived demand” of the international trading and not a direct demand (Edirisinghe, et al., 2016 b). It passes two borders namely in the originating country and in the destination country. It commonly uses multimodal transport system before reaches the consignee. Shipping is the most popular mode for cargo transportation. It is acknowledged that more than 90% of global trade is carried by sea (Edirisinghe, et al., 2015). From the business perspectives, the shipping has a dispersed international nature (Edirisinghe & Zhihong, 2016 a) It uses local and foreign infrastructure whether soft such as information technology or hard such as ports and terminals. Most experts agree that the 2008 financial crisis coincided with new trends in global trade, ending a phase when trade, and hence logistics, grew faster than production (Arvis, et al., 2016).

In the case of Boeing, the super-efficient 787 Dreamliner, 50 outside suppliers spread around the world account for 65 percent of the value of the aircraft (Chegg study, nd). The 2016 survey confirms that the policy agenda is becoming more complex. The demand for environmentally friendly logistics solutions, or green logistics, is gradually becoming a common feature in most advanced logistics environments (Arvis, et al., 2016).

Sri Lanka has made heavy emphasis on improving infrastructure to facilitate the hub concept (Edirisinghe & Wijeratne, 2015). Port of Colombo presently handle about 72% of transhipment containers from India.

The system, that proved its potential as an increasingly efficient and swift method of transport, led to greatly reduced transport costs, and supported a vast increase in international trade (Edirisinghe, 2016).

Therefore, students’ aspiration will be limited to such sectors only. It may need a long term strategic vision by MET institutes to systematically change the traditional trends. Many parents and school authorities may not be aware of the opportunities available in the transport and logistics sector for Tertiary Education in Sri Lanka


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(Edirisinghe, 2015). The maritime industry is already feeling the effects of seafarer recruitment challenges even though grey clouds of unemployment are very much in the existence particularly with respect to junior officers in the marine market place (Edirisinghe, et al., 2016).

Laws related to logistics

Supply chains are complex, but their performance is largely dependent on country characteristics, especially the soft and hard infrastructure and institutions that logistics requires to operate well, such as imports, regulations, procedures, and behaviours (Arvis, et al., 2016). With the expansion of electronic transactions and e-commerce around the globe the international carriage of goods industry has developed into a multi model transportation system combination of sea, air, rail and road in the last couple of years and benefited both the buyer and seller. In this context transportation and logistics industry requires an understanding of UN conventions, Hague Rules, Hague-Visby rules, Hamburg Rules, for transportation of Goods by sea. Warsaw Convention, Montreal Convention and added protocols for carriage of Goods by Air and UNESCO multi model law. In addition, all countries signed and ratified the above rules and conventions absorbed them to their domestic laws, regulations. On the other hand, it is necessary to know the laws related to marine and admiralty insurance and the relevant legal principles of supply chain management

The principles of trade and transport facilitation have been formalized and adopted in a number of international agreements under the aegis of United Nations bodies and specialized agencies (World Customs Organization, WTO). Instruments such as the TIR Convention, the Kyoto Convention, and more recently the WTO Trade Facilitation Agreement have been playing an important role in motivating, guiding, and providing clear technical targets for projects in developing countries. Other initiatives, not necessarily global, are also energizing the agenda (Arvis, et al., 2016)

Education in Logistics based Law

In the last decade, the logistics-based law was existed at primary stages because there was no undergraduate or post-graduate degree specialized for logistic and transportation Law in Public or International Universities. Currently, the Logistic and transportation law is only a subject in the degree or post-graduate degree in Sri Lanka. The field of logistics encompasses customs regulation, transportation insurance, documents related to carriage of goods by sea and air, military contracting, administrative law for transportation, and other topics. In this context, logistics is a

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branch of business law curriculum and many lawyers are unaware about this subject area of law. This field won a huge attraction during the introduction of open economy in 1980s’and the early 2000 in Sri Lanka. As a result, from a layman’s perspective, but not necessarily from an academia view point, every person mainly people involved in international trade considered the laws related to logistics. This establishment of various government ministries and departments related to export and import demanded for professionally qualified lawyers in this specialised area. This has resulted in the growth of international transportation industry, which is now one of the largest export revenue generates for Sri Lanka. Therefore, it is timely requirement to commence a law degree and post graduate law degree based in Logistic law. The rationale for a law is that logistics integrates many activities and may not be properly supported by a regulatory framework designed for industrial or commercial enterprises. There is still limited international experience in this respect. The World Bank has so far advised two countries, Greece and Morocco, in preparing a regulatory framework for logistics (Arvis, et al., 2016). Therefore, education in logistics-based law is undoubtedly a key driver in improved logistics performances.

What Do Transportation and Logistics Lawyers Do?

There is a big demand from the blue-chip companies and International shipping companies for lawyers who expertized the area of international transportation and logistics for resolve the burning issues raised by their client in the recent past. The following work is done by the logistic lawyers. • Preparation of transportation contracts and the documents related to insurance

for client shippers• Acting on behalf of clients in business negotiations with trucking and brokerage

companies • Representing clients in international shipping matters, including border crossing

issues, customs, and freight forwarding• Keeping up with pending transportation legislation and advising clients on these

matters• Representing international airport authorities in matters of everything from debt

issuance to rental car agreements to construction matters to aviation regulatory and compliance matters.

• Representing both trucker dealers and jet aircraft sales/broker companies in operations, expansions, and acquisitions

• Update the clients in relation to amendment of laws and regulations including by-laws related to logistics


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Conclusions

This article emphasised the need for expanding the legal logistics education beyond the general university curriculum. Multifaceted benefits for lawyers who are aware commercial laws and laws related to logistics. Many logistics companies do not pay much attention to develop competencies in law related to logistics and supply chain despite the potential risks associated in their business in this area.

Usually these companies designate this responsibility totally to consultancy firms because it is a specialized area. As a result, the company’s learning curve does not improve in logistics matters with a legal background even if the similar type of legal matters are frequent occurrences. Although the legal matters are highly complicated and should be handled by the qualified law professionals the respective staff in other departments such as marketing, operation and customer services should be able to at least analyse a case and understand its legal background to propose policy guidelines thus to avoid repetitions of that nature. This could also be considered an effective capacity building effort in a company that provides the respective staff with required skills to contribute in an effective manner.

Sri Lanka should transform a separate statuary body for logistics enhancing the necessary coordination between all border management agencies particularly to ease bottlenecks in customs and other border agencies (Edirisinghe 2013).

References

1. Arvis, J.-F.et al., 2016. Connecting to Compete 2016, Washington, DC 20433: The International Bank for Reconstruction and Development/The World Bank.

2. Bookbinder, J. H., 2013. Handbook of Global Logistics. 1 ed. New York: Springer-Verlag.

3. Chegg study, nd. International Business. [Online] Available at: http://www.chegg.com/homework-help/international-business-0th-hill-hult-11th-edition-chapter-1-solutions-9781259578113 [Accessed 21 04 2018].

4. Earle, M., 2013. Legal Issues in the Distribution, Transportation and Logistics Industry. [Online] Available at: http://www.pentalift.com/blog/legal-issues-in-the-distribution-transportation-and-logistics-industry/[Accessed 30 03 2018].

5. Edirisinghe, L., 2013. Cross-border Logistics Performance in Sri Lanka: The way forward. Colombo, International Conference on Business Management, pp. 1-17.

6. Edirisinghe, L., 2015. Enhancing the Power of Women in Logistics and Transport. Journal of Institute of Supply and Materials Management, 26(43 Anniversary).

7. Edirisinghe, L., 2016. Virtual Container Pool: Solution to Container Inventory Management. Logistics Conference 2016 Journal, pp. 179-204.

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8. Edirisinghe, L., Jayakody, N., Ranwala, L. & Shen, L., 2016. Factors that determines the students’ choice of maritime education and training with special reference to seafaring officers. Dalian, s.n.

9. Edirisinghe, L. & Jayathilake, S., 2014. Frontier Logistics Performance in Sri Lanka-The role play of the Customs. Ratmalana, General Sir John Kothalawala University, pp. 424-434.

10. Edirisinghe, L. & Muller, S., 2013. Converting Sri Lanka into a Commercial Hub in Asia An assessment of postwar progress with insights to the way forward - A Case Study. Colombo, s.n.

11. Edirisinghe, L. & Wijeratne, A., 2015. A Sustainable Commercial Hub in Sri Lanka: The Role of Automobile INdustry. Colombo, The Institute of Automobile Engineers of Sri Lanka.

12. Arvis, J.-F.et al., 2016. Connecting to Compete 2016, Washington, DC 20433: The International Bank for Reconstruction and Development/The World Bank.

13. Bookbinder, J. H., 2013. Handbook of Global Logistics. 1 ed. New York: Springer-Verlag.

14. Chegg study, nd. International Business. [Online] Available at: http://www.chegg.com/homework-help/international-business-0th-hill-hult-11th-edition-chapter-1-solutions-9781259578113[Accessed 21 04 2018].

15. Earle, M., 2013. Legal Issues in the Distribution, Transportation and Logistics Industry. [Online] Available at: http://www.pentalift.com/blog/legal-issues-in-the-distribution-transportation-and-logistics-industry/[Accessed 30 03 2018].

16. Edirisinghe, L., 2013. Cross-border Logistics Performance in Sri Lanka: The way forward. Colombo, International Conference on Business Management, pp. 1-17.

17. Edirisinghe, L., 2015. Enhancing the Power of Women in Logistics and Transport. Journal of Institute of Supply and Materials Management, 26(43 Anniversary).

18. Edirisinghe, L., 2016. Virtual Container Pool: Solution to Container Inventory Management. Logistics Conference 2016 Journal, pp. 179-204.

19. Edirisinghe, L., Jayakody, N., Ranwala, L. & Shen, L., 2016. Factors that determines the students’ choice of maritime education and training with special reference to seafaring officers. Dalian, s.n.

20. Edirisinghe, L. & Jayathilake, S., 2014. Frontier Logistics Performance in Sri Lanka-The role play of the Customs. Ratmalana, General Sir John Kothalawala University, pp. 424-434.

21. Edirisinghe, L. & Muller, S., 2013. Converting Sri Lanka into a Commercial Hub in Asia An assessment of postwar progress with insights to the way forward - A Case Study. Colombo, s.n.

22. Edirisinghe, L. & Wijeratne, A., 2015. A Sustainable Commercial Hub in Sri Lanka: The Role of Automobile INdustry. Colombo, The Institute of Automobile Engineers of Sri Lanka.


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23. Edirisinghe, L. & Zhihong, J., 2016 a. The Benefits of Container Exchange between Carriers: A Case Study. Moratuwa, Sri Lanka Society for Transport and Logistics.

24. Edirisinghe, L., Zhihong, J. & Wijeratne, A., 2015. Evaluation Of Expected Payoff Through Container interchange between shipping lines: a solution to container inventory imbalance in Sri Lanka. Int. J. Logistics Systems and Management, 21(4), pp. 503-533.

25. Edirisinghe, L., Zhihong, J. & Wijeratne, A., 2016 b. Container Inventory Management: Factors influencing Container Interchange. Sri Jayawardanepura, University of Sri Jayawardanepura, pp. 652-668.

26. Hawawy, M. E., 2011. The things you should know about logistics law. [Online Available at: https://www.logisticsmiddleeast.com/article-6480-the-things-you-should-know about-logistics-law[Accessed 01 04 2018].

27. Hughes, J., 2015. www.masterstudies.com. [Online] Available at: https://www masterstudies.com/article/Why-Study-Logistics-and-Transportation-Law/[Accessed 28 03 2018].

28. PLS Logistics Services, nd. Logistics Management Best Practices: All for Superior Customer Service. [Online] Available at: https://www.logisticsmgmt.com/wp_content/pls_wp_best_practices_092915.pdf [Accessed 21 04 2018].

29. Sarah, 2012. Logistics Management. [Online] Available at: https://www.logisticsmgmt.com/article/global_logistics_new_perspectives_on_global_risk [Accessed 21 04 2018].

30. www.transparencymarketresearch.com, 2018. Transparency Market Research.com/logistics. [Online] Available at: https://www.transparencymarketresearch.com/logistics-market.html [Accessed 28 03 2018].

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COPYRIGHT AND THE CONCEPTUAL MISMATCH IN DEVELOPING COUNTRIES: THE SRI LANKAN PERSPECTIVE

Dr. Chamila S. TalagalaLLB (Hons), ADMA (London), PG Dip in IPL (Hons), LLM (Hons), PhD in Law (Griffith)

Member of the Australian Centre for Intellectual Property Rights in Agriculture, Queensland Senior Lecturer in Law (Grade I) at the General Sir John Kotelawala Defence University, Sri Lanka

Former Advisor to the Ministry of Education, Sri Lanka

Introduction

With the internationalisation of intellectual property law, copyright has become an entrenched global norm in the modern context. Out of the 195 countries in the world, at least 164 are legally obliged to protect copyright in their respective jurisdictions. This is because, the World Trade Organization (WTO)1 requires all its members to be a party to the Agreement on Trade Related Aspects of Intellectual Property Rights 1994 (TRIPS Agreement 1994) which mandates that ‘Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto.’2 While the Berne Convention for the Protection of Literary and Artistic Works 1886 (Berne Convention) is the most important instrument determining international copyright, the Convention has undergone several revisions from 1886 to 1971, yet retaining and fortifying its core objective of protecting ‘in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works’. 3

The Berne Convention was an initiative of certain developed countries in Europe, such as France, Germany and Great Britain, which advocated copyright protection at the global level.4 As Professor Bently has observed:

The Europeans had developed, in the various versions of Berne, a set of international norms well-suited to their own cultural and moral values (particularly romantic authorship and natural law), and which met the demands of their own cultural industries, particularly those of established and reputable book publishers.

There is a clear mismatch of attitudes, ideas and desires between the developed and the developing world when it comes to copyright protection. This is mainly


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because, while most of the developed countries are producers of copyright protected works, the vast majority of developing countries are only users of those works. As such, the conflict between copyright owners’ rights and the interests of the users of copyright protected works, which is inherent in the copyright protection system itself, is clearly evident between the developed and developing countries in the context of global copyright protection. While this conflict came to light even at the time of the inception of the Berne Convention in 1886, it reached its high-water mark during the two last revisions of the Convention in the late 1960s and early 1970s.

The last revision to the Berne Convention, that is, the 1971 Paris Revision of the Berne Convention, was a compromise between the developed and developing countries, which involved extensive amendments to the Convention.5 One of the main outcomes of the Paris Revision of Berne was the so-called Berne Appendix, which contains a special copyright regime for developing countries. Of particular importance is that it allows Member States to introduce compulsory licensing schemes for reproduction and translation of copyright protected works. While copyright protection has remained a contentious issue between the developed and developing countries from the inception, the compromise achieved at the 1971 Paris Conference for the revision of the Berne Convention reveals that international copyright protection needs to be identified and addressed more or less as a balancing instrument between the interests of the developed and the developing world in line with the modern notion of copyright which has identified copyright protection as a balancing act between the rights of copyright owners and the interests of the users of copyright protected works.

The conceptualisation of copyright protection on the fundamental basis of its utility and economic value to the society at large has made copyright law a balancing instrument between the interests of the copyright owners and the interests of the users of copyright protected works. This is because, the prime objective of copyright (according to the Utilitarian and economic theorists) is fostering knowledge and its wide dissemination which is essential for human development, as well as, maintaining the market equilibrium in respect of intellectual goods. On the one hand, those who create intellectual works are required to be conferred with rights in order to encourage them (and others) to create more of these works and to avoid market failures. On the other hand, since extreme protection of these rights can hinder the dissemination of intellectual works, which in turn would affect the creation of intellectual works (because new intellectual works are created using existing intellectual works), there needs to be appropriate limitations placed on these rights in order to ensure that people (users) have a legitimate opportunity to access intellectual works. As such,

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the copyright law strives to strike a balance between the interests of those who create intellectual works (copyright owners) on the one hand and, the interests of those who use those intellectual works (users of copyright protected works) on the other, by protecting the rights of copyright owners and providing for certain exceptions thereto.

As pointed out above, copyright protection inherently and inevitably entails a mismatch: the mismatch between the interests of those who create knowledge (copyright owners) on the one hand and, the interests of those who use that knowledge (users of copyright protected works) on the other. While acknowledging that this mismatch can only be effectively dealt with through a delicate balancing act between these conflicting interests, this article attempts to examine whether the Sri Lankan Copyright law has been able to effectively deal with this situation. In other words, this article attempts to identify whether the Copyright law in Sri Lanka performs an effective balancing act between the interests of copyright owners and the interests of users of copyright protected works. As will be submitted, it appears that the Sri Lankan Copyright law has proved itself to be a failure in this connection.

I. Copyright Protection

Copyright protection was first introduced in Sri Lanka by the British during their colonial rule of the country from 1796-1948. It was completely based on the British model. While Sri Lanka became an independent nation in 1948, the British model of copyright protection continued to remain in Sri Lanka to the current day.

The British model of copyright emanated largely in response to the need for censorship of the press. Indeed, as Birrell has pointed out, it is through the means that were adopted by the Crown and the Church to carry out press censorship that copyright sprang in Britain.6 With the introduction of the printing press to Britain by William Caxton in 1476, publication of information became an easier task which paved the way for widespread dissemination of information in printed form. While this did not appear to delight the Government of the day, since those who were opposed to and were critical of the established order and doctrines of the British Crown and the Church during the period soon began to use printed matter as a powerful weapon to spread their ideas to the masses of general public, it became a serious threat to the peaceful subsistence of the Crown and the Church, particularly their ideologies.7 Apart from this, a free and unregulated press was not a tolerable and acceptable notion in the process of governance during that period. In fact, no sensible person in Britain, nor in the European continent at that time, thought of disputing press censorship and its need.8


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The rather usual and conventional strategy which was adopted by the British Government of the day to deal with this situation was to place restrictions on the printing of information and circulation of the printed matter through regulation of the printing trade. By and large, the regulation of the printing trade was aimed at granting certain privileges to some selected printers who were usually faithful to the Crown and the Church, and thereby rendering the printing of information their monopoly. In other words, printing was made an exclusive right of these printers so that no person other than these printers could print any information. Thus, through granting these exclusive rights of printing, the Government assumed that it could place proper controls and mechanisms to prevent the printing of information that was treasonable, seditious and heretical.9 In short, the idea was to have a ‘pre-publication licensing system’ to carry out press censorship.

Be that as it may, by the end of the 17th century, the strategy and the mechanisms employed by the British Government towards press censorship, particularly the prevention of the printing and dissemination of treasonable, seditious and heretical information, were proved to be ineffective. Also, by this time, liberalism had started to sway the thoughts and practices of the Government and thus, any monopoly, including that which was enjoyed by the printers, came to be seen as inimical and unsuitable. The upshot of this was the discontinuation of the hitherto exited ‘pre-publication licensing system’ in 1695, and the fall of the exclusive monopoly of the printers to print and publish information.

The ‘pre-publication licensing system’, which was designed to prevent the circulation of treasonable, seditious and heretical information, conferred printers with significant substantial economic benefits. While the ‘Stationers’ Company [in London] acquired a general monopoly over printing as well as over the printing of specific books’, the ‘individual printers acquired what was in effect a perpetual monopoly the publication of particular works.’10 The discontinuation of the ‘pre-publication licensing system’ in 1695 completely changed this position. As the printers ‘began to lose the control that they had long exercised over the book trade’, the extinction of the ‘pre-publication licensing system’, indeed, created a financial setback for the printers.11

The initial reaction of the printers in London to the discontinuation of the ‘pre-publication licensing system’ was to campaign for the restoration of their lost position through reinstatement of that system. Yet, these attempts proved to be failures. In light of this, these printers adopted a change in their course of action for securing their rights and interests which culminated in the passage of the Statute of Anne 1710 by the British Parliament.12

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Although the Statute of Anne 1710, is frequently referred to as the first copyright legislation in the world, it was not actually a copyright legislation.13 The statute never granted a copyright on authors but, provided authors and proprietors of books or manuscripts with the right to print and reprint copies or books thereof. Be that as it may, the Statute of Anne 1710 influenced copyright laws of many countries while also functioning as a ‘legal transplant’ in the United States and thus becoming the ‘source of Anglo-American copyright’.14 Moreover, primarily through the extension of its provisions, this statute also facilitated all subsequent developments in law relating to literary property in Britain which ultimately led to the emergence of the concept of modern copyright law in the mid-19th century.15

Before the mid-19th century, there was no law of copyright in Britain in the sense of the term it is recognized today. While there might have been an ‘agreement that the law recognized and granted property rights in mental labour’ during that period, ‘the nature of this legal category itself [remained] uncertain.’16 However, as Professor Sherman has observed, ‘[d]espite the fluidity and openness that existed during the 18th and 19th centuries, by the 1850s there was a much clearer idea of what copyright law was and how it differed from other areas of law which provided protection for mental labour.’17 In short, ‘by the 1850s or thereabouts modern [copyright law] had emerged as a separate and distinct area of law replete with its own logic and grammar.’18 By and large, this was foreshadowed in the provisions of the Copyright Act 1842 which was enacted by the British Parliament on 1 July 1842.

The conceptual basis of British Copyright law, as it is known today, which is fittingly referred to as the ‘modern copyright law’, 19 sprang during the mid-19th century as a result of economic needs of the British society. This was a culmination of a lengthy process which involved not only the consideration of economic transpositions in Britain alone, but deep philosophical, political, legal and social thoughts and concerns as well. Indeed, the debate over literary property that took place in Britain in the second half of the 18th century aptly demonstrates this position. The focus of this ‘costly, prodigious and protracted’ debate, which is popularly referred to as the ‘Literary Property Debate’ was on the status and nature of common law literary property.20

In particular, it was through the pre-publication licensing system mentioned earlier that the production and distribution of books were regulated in Britain prior to 1695. Under this system, (which was designed to prevent the circulation of seditious, heretical, obscene and blasphemous materials) ‘the individual printers acquired what was in effect a perpetual monopoly over the publication of particular works.’21 However, with the lapse of the pre-publication licensing system in 1695,


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this perpetual monopoly was lost and later through the Statute of Anne 1710 the printers were able to improve their position. Since the Statute of Anne provided that ‘authors and proprietors of “copies” (or manuscripts) with the right to print and reprint copies of their works’, as long as the printers ‘were able to convince authors to assign their rights to them, this had the effect of providing the [printers] with an opportunity to reclaim some of the control they had previously exercised over the book trade.’ 22 Be that as it may, the Statute of Anne was only able to provide printers with a very restricted form of monopoly when compared with what they exercised before 1695. This was particularly so, in view of the fact that the right to print and reprint books granted by the Statute of Anne was confined to a very limited period: fourteen years if the book was new, twenty-eight years if the author was alive at the end of the first fourteen years, and twenty years in the case of old books. ‘This meant that by the 1730s statutory rights over formerly profitable works had begun to lapse’. 23 In response to this, the printers resorted to various courses of action in the direction of regaining their lost position which they enjoyed prior to 1695. One such course of action was to ‘argue that while the rights which had been granted under the Statute of Anne expired fourteen (or twenty-eight) years after registration, these rights merely supplemented the pre-existing, perpetual rights of authors which existed at common law.’ 24 In short, the contention of the printers was that the common law (quite apart from the Statue of Anne) conferred authors with a perpetual property right over their books (in particular to print and reprint the books) which was not affected or altered by the provisions in the Statute of Anne. This in turn paved the way to the Literary Property Debate, of which the ‘central question in issue was whether authors, and through them [printers], had a perpetual common law copy-right in their works or whether their rights were confined to the statutory period provided under the Statute of Anne.’ 25

The Literary Property Debate becomes very important in the context of ascertaining the conceptual basis of modern copyright law. As Professor Sherman and Professor Bently have pointed out, although modern copyright law did not emerge as a separate and distinct area of law until the mid-19th century, the Literary Property Debate reflected the struggle of the law between conflicting demands of pre-modern and modern copyright law.26 In fact, during the course of the debate, it became apparent that the law believed that mental labour, which was to be the exclusive concern of copyright law, was fundamentally different from manual labour.27 While the debate generated a large body of literature both in support of and against the recognition of a common law property right in literary works, by the end of the debate ‘the law felt comfortable, in a way it had never done before’, in granting

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property rights to literary works.28 Along these lines, the Literary Property Debate ‘helped to secure (and close) the normative status of [modern] copyright law’. 29

The central question in the Literary Property Debate, i.e. whether authors had a perpetual common law copyright in their literary works or whether their rights in respect of literary works were confined to what was provided under the Statute of Anne 1710, was resolved by the House of Lords in Donaldson v Becket. 30 The decision in Donaldson v Becket, is the ‘first decision of the House of Lords to address the question of copyright’, and also ‘regarded as providing a conclusion to the literary property debate’. 31 In this case, the House of Lords conclusively rejected that there was a perpetual copyright in common law and held that the only basis for copyright was the provisions in the Statute of Anne.32 What is more important is that, the House of Lords in deciding so, identified copyright law as a balancing instrument of the interests of the society at large (including those of the authors, printers, booksellers and the reading public) rather than as a mere property right of the author.

II. Copyright Protection in Sri Lanka

As observed earlier, copyright protection in Sri Lanka is a British implant. One of the earliest instances where the British model of copyright came to be applied in Sri Lanka was through the Copyright Act 1842. The Copyright Act 1842 was an imperial legislation passed by the British Parliament on 1 July 1842. As Section 28 of this Act stated, the provisions thereof were to be extended ‘to the United Kingdom of Great Britain and Ireland, and to every Part of the British Dominions’. By virtue of the provisions in Section 2 of the Copyright Act 1842 (which was the interpreting Section of the Act) the words ‘British Dominions’ were to be construed to mean and include ‘all the Colonies, Settlements, and Possessions of the [British] Crown’ which were acquired by 1 July 1842 or were to be acquired thereafter. Quite undoubtedly, Sri Lanka had become a Colony of the British Crown by 1 July 1842. As history would irrefutably reveal, while a significant part of Sri Lanka, i.e. the former Dutch possessions in the country, became the ‘British Crown Colony of Ceylon’ in 1802, the entirety of Sri Lanka became a British colony in 1815.33 This status quo was maintained until Sri Lanka gained independence in 1948. Thus, under and in terms of the provisions in Section 28 of the Copyright Act 1842 read together with the provisions in Section 2 thereof, the British Copyright regime contained in this Act became applicable in Sri Lanka from 1842.

The Copyright Ordinance No.12 of 1908 was the first copyright statute enacted in Sri Lanka. In particular, this Ordinance was enacted by the Governor of Ceylon with the advice and consent of the Legislative Council of Ceylon. According to its Preamble, the Copyright Ordinance No.12 of 1908 was a statute enacted to ‘secure the right of property in literary and artistic works.’


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Be that as it may, Copyright Ordinance No.12 of 1908 was almost a verbatim reproduction of the Copyright Act 1905 of the Commonwealth of Australia which was in turn formulated based on a Copyright Bill that did not see passage in the British Parliament.34 Apart from this, Section 5 of this Ordinance provided that after the commencement of this Ordinance, ‘the Common Law of England relating to proprietary rights in unpublished literary compositions [were to] apply in Ceylon’, subject only to the other provisions therein. Hence, the Copyright Ordinance No.12 of 1908 was virtually a statute which assimilated British Copyright law.

The Copyright Ordinance No.12 of 1908 was superseded by the Copyright Act 1911, which was an imperial legislation enacted by the British Parliament. The Copyright Act 1911 became applicable in Sri Lanka by direct extension. In particular, Section 25(1) of this Act provided that ‘except such of the provisions thereof as are expressly restricted to the United Kingdom, [the Act] shall extend throughout His Majesty’s dominions …’. This direct extension of the Copyright Act 1911 was explicitly recognized in the Copyright Ordinance No.12 of 1912 enacted by the Governor of Ceylon with the advice and consent of the Legislative Council of Ceylon. This Ordinance also repealed the Copyright Ordinance No.12 of 1908.35

The Copyright Act 1911 was an important milestone in the entire history of British Copyright. The movement in Britain towards protection of literary property on a fitting conceptual basis, i.e. modern copyright law, was formally completed with the enactment of the Copyright Act 1911 on 16 December 1911. In short, this Act codified the concepts of modern copyright law into a single and comprehensive law.36 Although the Copyright Act 1911 was repealed and replaced in Britain by the Copyright Act 1956,37 it continued to apply in Sri Lanka until the Code of Intellectual Property Act No.52 of 1979 was enacted by the Sri Lankan Parliament on 8 August 1979.38

The Code of Intellectual Property Act No.52 of 1979 was the first intellectual property statute that was enacted by a fully independent Parliament in Sri Lanka. However, it contained a copyright law that almost reproduced the provisions in the Tunis Model Law on Copyright for Developing Countries which was formulated jointly by the World Intellectual Property Organization (WIPO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 1976. The Tunis Model Law on Copyright for Developing Countries was designed and developed in terms of a single common framework for protection of authors’ rights, that is, the Berne Convention for the Protection of Literary and Artistic Works, 1886.

The Intellectual Property Act No.36 of 2003 is the second copyright legislation enacted by a fully independent Sri Lankan Parliament. The copyright provisions in

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this Act comply with the obligations imposed by the TRIPS Agreement, 199439 and the Berne Convention (as revised). Apart from that, the Intellectual Property Act No.36 of 2003 incorporates copyright provisions in British law and United States law. For instance, the fair use doctrine contained in Section 11(1) of the Intellectual Property Act is almost a verbatim reproduction of Section 107 of the US Copyright Act 1976.40 Moreover, the US influence on the copyright provisions in the Intellectual Property Act is clearly noticeable from the usage of the term “copyrighted work” throughout the Act.

Since copyright in Sri Lanka is of British origin and the country still follows the British Copyright law tradition, the conceptual basis of copyright protection in Sri Lanka appears to be same as that of Great Britain. The primary basis of copyright protection under modern copyright law in Great Britain is premised on Utilitarian and economic aspects rather than on the Natural law theory. Same is the case in many commonwealth countries which follow the British Copyright law tradition. For instance, as the Intellectual Property and Competition Review Committee of Australia has very clearly pointed out, ‘[t]he general objective of the system of intellectual property law in Australia is utilitarian, and more specifically economic, rather than moral in character’.41 By and large, the situation in Sri Lanka appears to conform to this approach. In particular, as the Court of Appeal observed in the case of Vasantha Obeysekera v. Anthony Christopher Alles:42

The granting of Copyright … is in the nature of a privilege granted by law to certain types of creative works. Its primary purpose is to foster originality in literary, artistic and scientific productions and to afford legal protection to the author. The goal of the provisions pertaining to Copyright seems to be to encourage creation of and facilitate public access to works of intellectual interest to society. When an author releases a literary or artistic or scientific work he exposes his personality and reputation to public perusal. Such author in turn desires legal protection not only for his work’s economic value but also for the value of his literary, artistic or scientific reputation expressed within his work. 43

The aforesaid statement clearly indicates that the Sri Lankan Court of Appeal has presupposed that copyright in respect of a work constitutes a natural right of its creator, apart from the economic needs to protect the rights of a creator. The reason for this, as affirmed by the Court, is that the work emanates from the mind of its creator. ‘For example, a poem is seen as the product of a poet’s mind, of their intellectual effort and inspiration.’ 44 Accordingly, a work or a creation is perceived as an extension of the personality of its creator.


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III. THE MISMATCH

The Intellectual Property Act No.36 of 2003 is said to contain ‘a comprehensive set of provisions with regard, inter alia, to protected works, rights of the owners, exceptions to the rights, duration of copyright, assignments and licenses, related rights expressions of folklore, infringement and enforcement of rights and collective management.’45 The Act affords copyright protection for literary, artistic or scientific works which are original intellectual creations in the literary, artistic and scientific domain.46 These include, books, pamphlets, articles, computer programs, other writings, speeches, lectures, dramatic works, musical works, audio-visual works, works of architecture, drawings, paintings, sculptures, photographs, works of applied art, illustrations, maps,47 and derivative works such as, translations, adaptations, arrangements, other transformations or modifications of works, collections of works and, collections of mere data.48

The Intellectual Property Act No.36 of 2003 grants economic rights to the owners of copyright protected works which mean the exclusive right to carry out or to authorize, inter alia, the reproduction of the work; translation of the work; adaptation, arrangement or other transformation of the work; the public distribution of the original and each copy of the work; rental of the original or a copy of an audio-visual work; importation of copies of the work; public display of the original or a copy of the work; public performance of the work; broadcasting of the work; and other communication to the public of the work.49 The Act also protects the moral rights of authors, namely, the right to have his name indicated prominently on the copies and in connection with any public use of his work, as far as practicable; the right to use a pseudonym and not have his name indicated on the copies and in connection with any public use of his work; and, the right to object to any distortion, mutilation or other modification of, or other derogatory action in relation to his work which would be prejudicial to his honour or reputation.50

The main exception to the economic rights of the copyright owners under the Intellectual Property Act No.36 of 2003 is ‘fair use’.51 Unquestionably, fair use is the key mechanism used by the Sri Lankan Copyright law to strike a balance between the interests of the copyright owners and users of copyright protected works. While the doctrine of fair use provides the users of copyright protected works a valid defence for unauthorized use of those works, it permits the use of those works, which would otherwise be construed as infringements.52 In other words, the doctrine of fair use provides an important exception and a defence for certain type of uses of copyright protected works, which are considered as fair under the copyright law.

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The doctrine of fair use lacks a statutory definition in Sri Lankan Copyright law. Neither the Intellectual Property Act No.36 of 2003 nor the previous legislation on copyright in Sri Lanka define the term fair use. The situation is same in the United States and Great Britain.53 Therefore, the determination of whether a particular use is fair or not is left up to the courts. Given the fact that there is a dearth of reported case law on the doctrine of fair use in Sri Lanka, one would have to resort to the decisions of British and US Courts in order to have an understanding of the doctrine of fair use.

The British Copyright law uses the term ‘fair dealing’ to refer to the doctrine of fair use.54 However, there is a distinction between the doctrine of fair dealing in British Copyright law and the doctrine of fair use in US Copyright law, which relates to the scope of the two concepts. In particular, the scope of the doctrine of fair dealing in British Copyright law has been widely characterized as restrictive compared with the doctrine of fair use in US Copyright law.

Lord Denning’s decision in Hubbard v. Vosper,55 provides a classic description of the doctrine of fair dealing in British Copyright law. In particular, His Lordship observed:

It is impossible to define what is ‘fair dealing’. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as the basis for comment, criticism or review, that may be fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide.56

The decision of Justice Joseph Story in Folsom v. Marsh,57 is considered as the origin of the doctrine of fair use in US Copyright law, although the court did not define or describe the term ‘fair use’ in that case. However, in Triangle Publications v Knight-Ridder Newspapers,58 the US Court of Appeals (Fifth Circuit) observed that:

The question of fair use has been appropriately described as ‘the most troublesome in the whole law of copyright.’….. Although no definition of fair use that is workable in every case has ever evolved, a frequently quoted definition of fair use is ‘a privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner (by the copyright).59


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The doctrine of fair use is a creation of British Courts. It arose as an embryonic form of defence in the course of judicial interpretation of the provisions of the Statute of Anne 1710, to justify certain types of uses of copyright works on the basis that the purpose of those uses were to promote and develop ‘public good’.60 Later, for more than a century, the judges in both British and US Courts, who mutually influenced and cross-referenced each other, developed a basic framework for the doctrine of fair use and eventually, the doctrine made its full appearance in the US case of Folsom v. Marsh.61

The British copyright legislation first recognized the doctrine of fair dealing in the Copyright Act 1911. Yet, it became part of the statute law of Sri Lanka relatively at an early stage. In particular, the Copyright Ordinance No.12 of 1908, which was the first domestic copyright legislation in Sri Lanka, referred to fair dealing in its provisions.62 In the United States, fair dealing was first introduced to statute law in the Copyright Act 1976. Professor Beebe observes that the statutory provision on fair use in the US Copyright Act 1976 (Section 107) was largely drawn from Justice Joseph Story’s decision in Folsom v. Marsh.63

Scope of the Doctrine of fair use in Sri Lankan Law

Section 11(1) of the Intellectual Property Act No.36 of 2003 which deals with fair use provides:

Notwithstanding the provisions of subsection (1) of section 9, the fair use of a work, including such use by reproduction in copies or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research shall not be an infringement of copyright.

First of all, it is to be noted that the aforesaid provision refers to several purposes for which the use of a copyright protected work may be considered as fair, namely, criticism, comment, news reporting, teaching, scholarship or research. Thus, the question arises whether the scope of the doctrine of fair use is confined to those purposes listed in the provision. The answer to this question appears to be in the negative since Section 11(1) of the Intellectual Property Act No.36 of 2003 uses the term ‘such as’ prior to listing the several purposes. Dr Karunaratna endorses this view when he states:

The purposes of fair use referred to in this section are merely a set of examples. They do not constitute an exhaustive list. Thus, these provisions are obviously open-ended.64

Secondly, it is to be noted that Section 11(1) cited above, provides an exception to Section 9(1) of the Intellectual Property Act No.36 of 2003, which deals with

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economic rights of the copyright owners. Thus, the effect of Section 11(1) is to make an infringement of economic rights of the copyright owners lawful, if that infringement was for a use which is considered as fair. This raises the important question - what type of uses will be considered as fair? Unfortunately, the Intellectual Property Act No.36 of 2003 does not state or define what those uses are. Instead, Section 11(2) of the Intellectual Property Act No.36 of 2003 provides a set of criteria that a court should adopt to decide whether a particular use is fair or not. In particular, it provides:

The following factors shall be considered in determining whether the use made of a work in any particular case is fair use:-

a) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

b) the nature of the copyrighted work;

c) the amount of substantiality of the portion used in relation to the copyrighted work as a whole; and

d) the effect of the use upon the potential market for, or value of, the copyrighted work.

It is important to note that the aforesaid factors in effect determine the scope of the doctrine of fair use. Thus, these factors warrant examination in detail. Though, there is a distinct lack of case law in Sri Lanka, which addresses these factors in detail, the decisions of the US Courts can provide ample guidance for such examination, since Section 107 of the US Copyright Act 1976, which deals with the US doctrine of fair use, is closely resemblant of Sections 11(1) and (2) of the Intellectual Property Act No.36 of 2003. However, when making use of the provisions in Section 107 of the US Copyright Act to elucidate Sections 11(1) and (2) of the Intellectual Property Act No.36 of 2003, one should not lose sight of the fact that there are two main differences between the US provision and the Sri Lankan provision. Those are: (i) the factors that a court should consider in determining whether a particular use is fair or not under the US provision are non-exhaustive whereas, under the Sri Lankan Act the four factors appear to be rather exhaustive;65 (ii) the US provision (as amended in 1992) does not make a distinction between published and unpublished works in determining fair use, whereas, the Sri Lankan provision is silent on this aspect. It is to be noted that the silence of the Intellectual Property Act No.36 of 2003 with regard to the applicability of the doctrine of fair use to unpublished works can lead to legal uncertainty of the scope of the doctrine in Sri Lanka. In particular, Dr Hemaratna has observed:

Though sec. 11 and 12 of 2003 Act deal with fair use, it does not distinguish between published and unpublished works. Whether a work is published or


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unpublished should be a crucial element to determine the application of fair use under the Act.66

By the same token, Dr Karunratna has observed that the absence of provisions specifically referring to unpublished works ‘results in an issue as to whether “fair use” is applicable or not to the unpublished works in Sri Lanka’.67 However, he has also contended:

The answer to this issue is a matter of construction of the relevant statutory provisions. Section 11(1) employs the phrase ‘fair use of a work’ without distinguishing between the published works and unpublished works. The Act does not in general require publication as a prerequisite for copyright protection. Thus, it is arguable that ‘fair use’ operates in respect of all the protected works – published and unpublished where appropriate.68

Having identified the above-mentioned differences between Section 107 of the US Copyright Act 1976 and Section 11(2) of the Intellectual Property Act No.36 of 2003, it would now be appropriate to discuss the criteria laid down under Section 11(2) of the Intellectual Property Act No.36 of 2003 in relation to how the US Courts have interpreted the same criteria laid down in Section 107 of the US Act. For the purposes of analysis, the said criteria can be summarized as: (i) the purpose and character of the use; (ii) the nature of the work used; (iii) the amount used from the work; and (iv) the effect of the use on the market.

(a) The Purpose and Character of the Use

The judicial consideration of Section 11(2)(a) of the Intellectual Property Act No.36 of 2003 assumes that the user’s purpose of use of a work can have an impact on the probable harm caused to the copyright owner from that use.69 It also assumes that a commercial use of a work can seriously impair the potential market for a copyright protected work than its use for a non-commercial purpose. Thus, whether the impugned use is for a commercial or non-commercial purpose has a direct impact on determining fair use. In other words, if the impugned use is for a commercial purpose, the chances of that use being interpreted as fair use are remote than in the case of a use for a non-commercial purpose.

It is to be noted that the aforesaid consideration in determining fair use is quite unreliable. This is because, the term “commercial’ appears to be ambiguous, at least, when it comes to judicial interpretation. For instance, referring to the US Supreme Court decisions in Sony Corporation v. Universal City Studios70 and Harper & Row Publishers v Nation Enterprises,71 Professor Fisher has noted:

In various opinions in Sony and Harper & Row, the term [“commercial”] was used in three markedly different ways. Justice Stevens equated it with money making.

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Justice Blackmun, in his dissent, contrasted commercial activities motivated by ‘humanitarian impulse[s],’ implicitly defining commercial as selfish. Justice O’Connor eschewed Justice Blackmun’s inquiry into the user’s motivations and ventured a more objective definition: ‘The Crux of the profit/non-profit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from the exploitation of the copyrighted material without paying the customary price’. Each of these definitions is problematic, but more serious than their individual defects is the fact that the Court has not indicated which is authoritative.72

(b) The Nature of the Work

The essence of judicial consideration under Section 11(2)(b) of the Intellectual Property Act No.36 of 2003 is between factual and fictional work. In other words, whether the copyright protected work, which has been used, is “primarily informational” or “primarily creative”. The general judicial attitude in US Courts has been that works that fall into the latter category deserve more copyright protection than the works falling under the former. In other words, the scope of the doctrine of fair use becomes larger when the work in concern is primarily factual or informational rather than creative.73 For instance, the US Supreme Court in Campbell v. Acuff-Rose Music Inc.,74 has observed:

This factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when former works are copied.75

(c) The Amount Used

The judicial consideration under Section 11(2)(c) of the Intellectual Property Act No.36 of 2003 involves the inquiry of the amount and substantiality of the portion used by the user, measured in relation to the copyright protected work as a whole. This, in other words, means that if the amount, which the user has copied from the work is substantial both in terms quality and quantity, the chances of such use being interpreted as fair are too remote.

It is to be noted that the consideration involved here resembles one of the vexatious issues in copyright law. This is because, there is no hard and fast rule to decide how much of a copyright protected work can be copied for such copying to be construed as unsubstantial and for the use to be deemed as fair. Referring to the legal position in the United States in this connection, Professor Fisher has observed:

Since the inception of the fair use doctrine in this country, most courts have expressly considered the extent of a defendant’s copying in determining whether his activity should give rise to liability. Unfortunately, to date they have failed to devise a reliable method of determining how much is too much.76


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(d) Effect on the Potential Market

Section 11(2)(d) of the Intellectual Property Act No.36 of 2003 mandates courts to consider whether the use of a copyright protected work in the particular situation has an adverse impact on the potential market for that work. In other words, the judicial consideration under this provision is whether the particular use erodes the potential of the copyright owner to reap all the fruits of his mental labour incorporated in his work. One would logically see that this consideration becomes highly relevant for the determination of fair use since it is related to the economic incentives intended to be created by copyright law for the benefit of the copyright owners. Thus, in Harper & Row Publishers77the US Supreme Court observed that this factor is “undoubtedly the single most important element of fair use”.78

However, it is pertinent to note that Section 11(2)(d) of the Intellectual Property Act No.36 of 2003 suffers from abstruseness and imprecision more than the other limbs of Section 11(2). This is because, almost every free use of a copyright protected work will have an adverse impact on its potential market. Thus, if the test in Section 11(2)(d) is strictly construed, the determination of fair use will almost always tilt in favour of the copyright owner, which will render the distinction between fair and unfair uses of copyright protected work nearly useless.79

As revealed from the above discussion, there is a great deal of uncertainty about whether the fair use in Section 11 of the Intellectual Property Act No.36 of 2003 would help to address the interests of the users of copyright protected works. Also, permitted acts under fair use ‘tend to be narrowly defined around particular concerns or interests. Defined as immunities or defences, they are only applicable once infringement has been established, and the onus will be on the party invoking such a defence to show that it applies’.80 It is also not clear whether fair use would allow the use of a whole copyright protected work (as distinct to part of a work), and also whether such a work could be mass reproduced (or limited to a single copy). Apart from that, the specific acts of fair use enumerated in Section 12 of the Intellectual Property Act No.36 of 2003 tend to further restrict the scope of fair use specified in Section 11. This becomes quite clear from the provisions in Sections 12(1) and 12(2)(b) of the Intellectual Property Act No.36 of 2003. In particular, while enumerating the specific acts of fair use, the Intellectual Property Act clearly states in Section 12(1) that:

[T]he private reproduction of a published work in a single copy shall be permitted without the authorisation of the owner of the copyright, where the reproduction is made by a physical person from a lawful copy of such work exclusively for his own personal purposes.

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However, the permission granted under Section 12(1) mentioned above, is subject to the important qualification specified under Section 12(2)(b) of the Intellectual Property Act. In particular, Section 12(2)(b) states:

The permission under [Section 12(1)] shall not be extended to the reproduction … in the form of reprography of whole or a substantial part of a book or of a musical work in the form of notations.

As such, the permission under Section 12(1) does not apply where a copy is made of a whole or a substantial part of a book or of a musical work in the form of notations. Further, the permission under Section 12(1) also does not extend to reproduction (photocopying) of ‘any work, in case the reproduction would conflict with a normal exploitation of the work or would otherwise unreasonable prejudice the legitimate interests of the owner of the copyright’. 81 The upshot of this is that the Intellectual Property Act No.36 of 2003 broadens the mismatch between the rights of copyright owners and the interests of users of copyright protected works.

Conclusion

In any country, copyright law is a balancing act between the interests of the copyright owners and the interests of the users of copyright protected works. This is because, the prime objective of copyright is fostering knowledge and its wide dissemination which is essential for human development. On the one hand, those who create knowledge products are required to be conferred with rights in order to encourage them (and others) to create more of these products. On the other hand, since extreme protection of these rights can hinder the dissemination of knowledge, which in turn would affect the creation of knowledge (because new knowledge is built upon existing knowledge), there needs to be appropriate limitations placed on these rights in order to ensure that people (users) have a legitimate opportunity to access knowledge. As such, the copyright law strives to strike a balance between the interests of those who create knowledge (copyright owners) on the one hand and, the interests of those who use that knowledge (users of copyright protected works) on the other, by protecting the rights of copyright owners and providing for certain exceptions thereto. Yet, it is highly doubtful whether the Sri Lankan Copyright law has been able to strike this balance in a proper manner. In fact, it seems that the Sri Lankan Copyright law has favoured the rights of the copyright owners to the detriment of the interests of users when attempting to strike this balance, thus enlarging the mismatch. Apart from that, the fact that Sri Lanka has still not been able to make use of the faculties provided in the Appendix of the Berne Convention as revised by the Paris Act 1971 (particularly concerning compulsory licensing) also


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demonstrates that Sri Lankan Copyright law has failed to strike a proper balance between the rights of copyright owners and the interests of users.

The general will and acceptance of the people play a crucial role when copyright law strives to strike a balance between the rights of the copyright owners and the interests of the users of copyright protected works. For there to be the general will and acceptance of the people, the copyright law of a country should emanate in response to the needs of the people. However, in Sri Lanka, the situation is the quite opposite. As observed before, birth of copyright in Great Britain - the mother country of modern copyright which is followed in Sri Lanka, occurred as a result of the needs of its society. With the introduction of printing in Britain in 1476, the Government implemented press censorship through printers and to that effect, printers were conferred with certain exclusive rights to print and publish intellectual works. When this scheme of press censorship ended in 1695, the printers were distressed and thus, campaigned to regain their lost monopolistic rights. These campaigns culminated in the Statute of Anne 1710, a devise through which printers were able to obtain some limited rights in respect of printing and reprinting of books.

While realizing that these rights were inadequate, the printers contested that irrespective of the provisions in the Statute of Anne, authors (and their assigns) enjoyed perpetual rights over their intellectual creations at common law. This question was finally resolved by the House of Lords in Donaldson v Becket,82 which decisively rejected that there was a perpetual copyright in common law and held that the only basis for copyright was the provisions in the Statute of Anne.83 More importantly, while pronouncing so, the House of Lords gave a new light to the copyright law by acknowledging it as a balancing instrument of the interests of the society at large (including those of the authors, printers, booksellers and the reading public) rather than as a mere property right of the author. From thenceforth, copyright law developed as an instrument which accommodated the economic, political and social needs and interests of the British society, while attempting to strike a proper balance between these interests whenever they were in conflict to each other. Thus, in short, copyright in Great Britain is a home-grown concept.

In contrast to the situation in Great Britain, copyright in Sri Lanka is not a home-grown concept. What is found in Sri Lanka as copyright is a mere implantation of the concept of copyright that was home-grown in Great Britain in response to the various economic, political and social needs and interests of the British society. Apart from that, the copyright legislation in Sri Lanka have always remained ‘copied’ laws. While Sri Lanka had copied its copyright laws from Great Britain up to 1979, the modern trend has been to merely incorporate into the domestic law of the country,

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the minimum standards prescribed by international copyright instruments (to which Sri Lanka is a party) as promulgated in model laws or legislation in other developed jurisdictions. The upshot of this has been the inevitable broadening of the copyright mismatch.

Endnotes

1 The WTO has 164 members since 29 July 2016. See, World Trade Organization, ‘Members and Observers’ <https://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm> accessed on 20-11-2018.

2 Art 9(1), TRIPS Agreement 1994.

3 Preamble, Berne Convention as revised by the Paris Act 1971.

4 Lionel Bently, ‘Copyright, Translations, and Relations between Britain and India in the Nineteenth and Early Twentieth Centuries’ (2007) 82 Chicago-Kent Law Review 1181, 1240.

5 Peter K. Yu, ‘A Tale of Two Development Agendas’ (2009) 35 Ohio Northern University Law Review 465, 481.

6 Augustine Birrell, Seven Lectures on the Law and History of Copyright in Books (Cassell & Company Ltd, 1899) 51.

7 David Harvey, ‘Law and the Regulation of Communications Technologies: The Printing Press and the Law 1475-1641’ (2005) Australian and New Zealand Law & History Society E Journal 160, 165-166.

8 Augustine Birrell, Seven Lectures on the Law and History of Copyright in Books (Cassell & Company Ltd, 1899) 51-52.

9 See Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law: The British Experience, 1760-1911 (Cambridge University Press, first published 1999, 2003 ed) 11; David Harvey, ‘Law and the Regulation of Communications Technologies: The Printing Press and the Law 1475-1641’ (2005) Australian and New Zealand Law & History Society E Journal 160.

10 Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law: The British Experience, 1760-1911 (Cambridge University Press, first published 1999, 2003 ed) 11.




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13 Lionel Bently, ‘Introduction to Part I: The History of Copyright’ in Lionel Bently, Uma Suthersanen and Paul Torremans (eds), Global Copyright: Three Hundred Years Since the Statute of Anne, from 1709 to Cyberspace (Edward Elgar, 2010) 7, 7-9; Ronan Deazley, On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britain (1695-1775) (Hart Publishing, 2004) 46; LR Patterson, Copyright in Historical Perspective (Venderbilt University, 1968) 150.

14 Oren Bracha, ‘The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant’ (2010) 25 Berkeley Technology Law Journal 1427, 1427.

15 See Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law: The British Experience, 1760-1911 (Cambridge University Press, first published 1999, 2003 ed).


17 Brad Sherman, ‘Remembering and Forgetting: The Birth of Modern Copyright Law’ (1995) 10 Intellectual Property Journal 5.


19 Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law: The British Experience, 1760-1911 (Cambridge University Press, first published 1999, 2003 ed).

20 Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law: The British Experience, 1760-1911 (Cambridge University Press, first published 1999, 2003 ed). 9.





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26 Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law: The British Experience, 1760-1911 (Cambridge University Press, first published 1999, 2003 ed). 8-10.




30 (1774) Hansard, 1st ser., 17 (1774): 953-1003.31 Ronan Deazley, ‘Commentary on Donaldson v. Becket (1774)’ in L Bently & M

Kretschmer (eds), Primary Sources on Copyright (1450-1900) available online <www.copyrighthistory.org> accessed on 01-10-2017.

32 Ronan Deazley, ‘Commentary on Donaldson v. Becket (1774)’ in L Bently & M Kretschmer (eds), Primary Sources on Copyright (1450-1900) available online <www.copyrighthistory.org> accessed on 01-10-2017.

33 KM de Silva, A History of Sri Lanka (C Hurst, 1981) 210.34 Copyright Bill 1900. 35 S 2, Copyright Ordinance No.12 of 1912. 36 See Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law:

The British Experience, 1760-1911 (Cambridge University Press, first published 1999, 2003 ed) 128.

37 S 50, Copyright Act 1956.38 See Beverly Ann Mirando, Critical Analysis of the Provisions Governing Trade Marks

under the Code of Intellectual Property Act No.52 of 1979 (Vijitha Yapa Publications, 1999) 13.

39 DM Karunaratna, An Introduction to the Law of Copyright and Related Rights in Sri Lanka (Sarvodaya Vishva Lekha Publication, 2006) 8.

40 DM Karunaratna, An Introduction to the Law of Copyright and Related Rights in Sri Lanka (Sarvodaya Vishva Lekha Publication, 2006) 77.

41 Intellectual Property and Competition Review Committee, Review of Intellectual Property Legislation under the Competition Principles Agreement (Final Report, Commonwealth of Australia, September 2000) 22.


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42 (Unreported) CA No 730/92(F) decided on 22 March 2000.

43 (Unreported) CA No 730/92(F) decided on 22 March 2000, at 11-12.

44 Lionel Bently and Brad Sherman, Intellectual Property Law (4th ed, Oxford University Press, 2014) 37.

45 DM Karunaratna, An Introduction to the Law of Copyright and Related Rights in Sri Lanka (Sarvodaya Vishva Lekha 2006) 8-9.

46 S 6(1), Intellectual Property Act No.36 of 2003.


48 S 7, Intellectual Property Act No.36 of 2003.



51 S 11, Intellectual Property Act No.36 of 2003.

52 Carys Craig, ‘The Changing Face of Fair Dealing in Canadian Copyright Law: A Proposal for Legislative Reform’ in Michael Geist (ed) In the Public Interest: The Future of Canadian Copyright Law (Irwin Law 2005) 437.

53 See US Copyright Act 1976 (as amended); British Copyright, Designs and Patents Act 1988 (as amended).

54 See British Copyright, Designs and Patents Act 1988 (as amended).

55 [1972] 2 QB 84.

56 [1972] 2 QB 84, 94.

57 9F.Cas.342, C.C. Mass., 1841.

58 626 F.2d 1171 (1980).

59 626 F.2d 1171 (1980) 1174. See Also, Harper & Row Publishers v Nation Enterprises 471 US 539 (1985).

60 See Melissa De Zwart, ‘Seriously Entertaining: The Panel and the Future of Fair Dealing’ [2003] 8 Media & Arts Law Review 1, 5.

61 9F.Cas.342, C.C. Mass., 1841. See, Ariel Katz, ‘Fair Use 2.0: The Rebirth of Fair Dealing in Canada’ in Michael Geist (ed) The Copyright Pentalogy (University of Ottawa Press 2013) 93-156.

62 See S 23, Copyright Ordinance No.12 of 1908.

63 Barton Beebe, ‘An Empirical Study of US Copyright Fair Use Opinions 1978-2005’ [2008] 156(3) University of Pennsylvania Law Review 549, 560.

64 DM Karunaratna, An Introduction to the Law of Copyright and Related Rights in Sri Lanka (Sarvodaya Vishva Lekha 2006) 77.


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66 TSK Hemaratne, ‘Intellectual Property Law and E-Commerce in Sri Lanka: Towards a Jurisprudence based on Constitution, Roman-Dutch Law and Buddhist Principle’ (PhD thesis, Queen Mary, University of London 2005) 213.



69 William W Fisher III, ‘Reconstructing the Fair Use Doctrine’ [1988] 101(8) Harvard Law Review 1659, 1672.

70 464 US 417 (1984).

71 471 US 539 (1985).

72 William W Fisher III, ‘Reconstructing the Fair Use Doctrine’ [1988] 101(8) Harvard Law Review 1659, 1673-1674.

73 Dharam Veer Singh and Pankaj Kumar, ‘Photocopying of Copyrighted Works for Educational Purposes: Does it Constitute Fair Use?’ [2005] 10 JIPR 21, 23.

74 510 US 569 (1994).

75 510 US 569, 586 (1994).

76 William W Fisher III, ‘Reconstructing the Fair Use Doctrine’ [1988] 101(8) Harvard Law Review 1659, 1675.

77 471 US 539 (1985).

78 471 US 539, 566 (1985).

79 William W Fisher III, ‘Reconstructing the Fair Use Doctrine’ [1988] 101(8) Harvard Law Review 1659, 1671-1672.

80 Paul Edward Geller and Lionel Bently (eds) International Copyright Law and Practice, vol 2 (Release No. 25 LexisNexis, 2013), UK 117.

81 S 12(2)(e), Intellectual Property Act No.36 of 2003.

82 (1774) Hansard, 1st ser., 17 (1774): 953-1003.

83 Ronan Deazley, ‘Commentary on Donaldson v. Becket (1774)’ in L Bently & M Kretschmer (eds), Primary Sources on Copyright (1450-1900) available online <www.copyrighthistory.org> accessed on 01-10-2017.


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JUDGMENT WRITING

R. S. S. Sapuvida[Judge of the High Court of Southern Province – Tangalle (Civil Appeal / Criminal)]

[Former Judge of the High Court – (Civil Division) - the Republic of Fiji][Barrister and Solicitor – Fiji]

(A - Civil Jurisdiction)Outline

01. Some discussions and dialogues may have been taken place on “Judgment Writing” in the past and yet, they may have not been so appeared by way of paper medium in a Law Journal as such at least for the past few years. I really cannot recollect such an attempt in the recent past.

02. What is a judgment? In law, a judgment is a decision of a court regarding the rights and liabilities of parties in a legal action or proceeding. Judgment also generally provides the court’s justification of why it has preferred to make a particular court order.

“The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination.” – Black’s Law Dictionary

“judgment” means the statement given by the Judge of the grounds of a decree or order; - Interpretation - Section 5 of the Civil Procedure Code

03. Who would be so foolhardy as to write on the writing of judgments? Indeed, in one sense it might be a matter for surprising to many of you as to why we need articles on this subject for the reason that judgment writing is a task to which each judge or magistrate brings his or her own individual and unique style or way of narrating as to how he or she arrived into the final decision. So that there cannot be an exact frame of law or rules on how to write judgments. Yes, it is an art of presenting the brief outcome of an issue/issues between two or among more parties to a litigation take place in a court of law.

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04. I would justly say that this is a timely opportunity for all of us to recall the reason why from time to time we need to revisit these topics particularly this kind of a topic as we are constantly striving to write better judgments. That is why a dialog on judgment writing is so important. This article, though not visible on the header would also briefly cover the subject of writing interim or interlocutory orders or rulings as well.

05. I do not say that Judgment Writing is an easy task. It is not an inelastic magic as well. It takes a disproportionate amount of time of a judge. Judgment Writing is one of the two weighty functions of a judge. The second core function is to preside over proceedings in the open court room. It is as a result of these two fundamental roles that disputes of litigants are settled in a legally accepted method. The judgment of a court has a significant social and civil function and impact. It must also be remembered that what a judge or a magistrate says in the judgment is the most important part to the parties in any given case yet, not the way the matter was proceeded. However, the judgment of a court should not be displayed or exhibited to the parties or to the general public in any other manner until it is pronounced in court at the end of the trial. I will deal with this later in this article.

Categories of Judgments

06. There are two types of judgments and orders. The first is referred to as “ex tempore” rulings. The second is the written judgment at the end of the trial.

07. What is Ex tempore? It is a Latin expression which in law is taken to mean “at the time.” A judge or magistrate who hands down a decision in a case from the Bench then and there after the hearing of submissions from both the parties is delivering a decision “ex tempore.” An ex tempore order, being “off the cuff”, does not have the benefit of preparation and research and suffers from not having been thought out. In the District Court the judges are required to make spontaneous rulings or orders in interim applications mostly ex-parte. I strongly suggest that even in the cases of such nature, the preliminary order/s should not be given off-the-cuff unless it is expeditious to do so. The better way of passing orders even in such situations is to take time viz; a day or two to absorb the submissions and pass the preliminary ruling on it. Ex tempore rulings or orders should be therefore discouraged for that reason. It is always the better idea to allow the submissions to be “digested”, having supported with case law, and refer the relevant section/s of law before putting pen to paper, because, we are always deciding issues of the parties to the task which we must substantiate it to our own


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conscious. We are not supposed to pass rulings haphazardly for only to get rid of the matters or duck away them as they come before us constantly.

08. The other way where a judge or magistrate may deliver a decision is to reserve the decision and deliver it later in written form. In the law reports you will have observed before the judgment begins letters “cut. adv. vult” or “c.a.v.” both of which are abbreviations for “curia adversary vult” Which is a Latin expression meaning “the court wishes to be advised.” This indicates that the judge has reserved the decision in order to take time to consider the evidence, the submissions of the parties and research the law prior to delivering the written judgment.

Requirement of Written Judgments

09. It is not only desirable to take the time to consider the submissions and the law before delivering a judgment in writing but, it should also be kept in mind that the paramount basis for written judgments are in effect required by the law in both civil and criminal jurisdictions in any legal system and in ours’ it is mandatory by law.

10. It is not unusual for a court, and in particular, an appellate court, to commence its judgment with words to the effect that on such and such a date the court ruled in favour of a particular party with reasons in writing to follow at a later date. This practice is discouraged for the simple reason that subsequent exploration may put the court in the embarrassing situation of having pronounced in court a decision or ruling that is inconsistent with the results of subsequent study on the point.

11. Hence, to avoid all of those issues above, our civil procedure code mandates the judgments to be in writing.

12. Section 186 of the Civil Procedure Code reads; - The judgment shall be in writing and shall be dated and signed by the judge

in open court at the time of pronouncing it.

Pronouncement

13. When to pronounce the judgment? When we talk about judgment writing, it is also important to discuss about the pronouncement of judgments as well.

Section 184 of the Civil Procedure Code – 184.(1) – The court, upon the evidence which has been duly taken or upon the facts admitted in the pleadings or otherwise, and after the parties have been heard either in person or by their respective counsels or registered attorneys (or recognized agents), shall after consultation with the assessors

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(if any), pronounce judgment in open court, either at once or on some future day, of which notice shall be given to the parties or their registered attorneys at the termination of the trial. (2) – On the day so fixed, if the court is not prepared to give its judgment, a yet future day may be appointed and announce for the purpose.

14. Nevertheless, a judgment delivered two years and four months after the conclusion of the trial cannot stand -Kulatunga vs. Samarasinghe- [1990 (1) S.L.R. 224] A judge must not delay the judgment more than two months after the case had been closed –Tikiri Manike vs. Dionis [7 N.L.R. 337]

15. The duty imposed by section 184 (1) of the Civil Procedure Code to pronounce judgment in open court either at once or on some future day of which notice is given to the parties or their attorneys-at-law is a mandatory itself. There is no duty cast of the party to ascertain for himself the next date of judgment if such date has not been fixed in open court. The duty cast on the court to ensure that notice of the date of delivery of judgment is in fact given to the parties or their attorneys-at-law is all the grater when there is an inordinate delay of 2 years and 8 months. The case had not been called for a period of about 2 years. In circumstances such as these it would not be easy for even the attorneys-at-law to ascertain the actual date of delivery of judgment – David vs. Choksy [1996 (1) S.L.R. 302]

16. Judgment and decree are inter-connected. No judgment is complete without the decree to be followed. A judge can pronounce a judgment written by his or her predecessor in terms of the section 185 of the Civil Procedure Code. I have come across instances where the succeeding judge had sent the decree back to the predecessor for his signature. This is utterly unnecessary and wrong procedure. The decree in a case is merely the formal expression of the results arrived at by the

judgment and it is not necessary that it should be drawn up and signed by the judge who pronounces the judgment. It can be done by any judge of the court – Fernando vs. The Sindicate Boat Company [ 2 N.L.R. 206]

And it should be noted that, this principle equally applies in entering of and signing of the interlocutory decree or the final decree in partition actions as well.

The contents of a judgment

17. A judgment has two components. First there is the style or form of the judgment. Secondly there is the structure of the judgment. However, the structure, style, and form of a judgment in a civil case is completely different to that of a criminal matter.


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The structure of a judgment

18. It is recommended that the structure of a trial judgment should generally include the following steps;

i. a statement of the questions to be determined with particular reference to jurisdiction where necessary;

ii. a factual setting;

iii. the relevant law;

iv. proven facts from the evidence;

- facts not in dispute,

- ruling on facts in dispute and reasons;

v. apply proven facts to the law;

vi. conclusions with reasons;

vii. Final Orders of the court.

19. Our civil procedure code is not silent on this. It again explains in section 187 as follows;

- The judgment shall contain a concise statement of the case, the points for determination, the decision there on, and the reasons for such decision; and the opinions of the assessors (if any) shall be prefixed to the judgment and signed by such assessors respectively.

20. Mere answers to the issues without reasons discussed in the body of the judgment are not in compliance with the requisites of a judgment in terms of section 187 of the Civil Procedure Code. Each issue should be answered having examined the evidence germane to them. It should also be noted that a judge cannot pass the judgment without answering the issues once they are duly recorded at the commencement, during, or after the trial in contested cases. The judge cannot merely say “I accept the evidence of plaintiff, or the evidence of witness X, or the evidence of the defendant” by just reproducing the evidence in the body of the judgment but, shall explain as to why the court rely on the evidence of the plaintiff or the defendant or the particular witness/es.

Judgment which does not deal with the points in issue and does not pronounce a finding definitely on them is not a judicial pronouncement. – 7 N.L.R 337

21. Every judgment has its effect. The function of the court does not end at the delivery of the judgment. This is why in civil judgments in particular the final orders are mandatory. Every judgment should be followed by the decree.

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22. One would raise a point and ask; What does mean by the final orders in a civil judgment? Indeed, some of my judicial colleagues have asked this question from me at a law conference previously held when I referred to the same in one of my presentations. The simple answer to the question as to why the final orders in a civil judgment are necessary is precisely given in section 188 of the Civil Procedure Code thus;

S. 188 - As soon as may be after the judgment is pronounced a formal decree bearing the same date as the judgment shall be drawn up by the court in the form No. 41 in the First Schedule or to the like effect, specifying in precise words the order which is made by the judgment in regard to the relief granted or other determination of the action. The decree shall also state by what parties and in what proportions costs are to be paid, and in cases in the Primary Courts shall state the amount of such costs. The decree shall be signed by the Judge.

23. However, I have observed and come across many instances in civil judgments where the judge has just answered the issues and signed at the end of them with no specific final orders in it. This is absolutely wrong. The answers to the issues should always be followed by the final orders of the judgment.

24. Hence, the decree proper cannot be entered if there are no final orders specified in the judgment itself. This is necessary for the due compliance of the judgment.

25. Therefore, in order to include the final orders in the decree, they should have first been pronounced in the judgment. The decree contains what is included in the judgment. This is why the final orders in a judgment are mandatory. There shall be orders in the judgment which envisage as to which prayer or prayers in the plaint or the answer are comforted or dismissed. It is then only the court can enter the decree accordingly. I have come across many instances where the decree could not have been finalized since the judgment did not carry the final orders in it. When there are no specific orders in the judgment, the court cannot enter a valid decree which is the only executable instrument of the judgment-creditor in whose favor the judgment is finally entered and yet, cannot be executed against the judgment-debtor.

26. And so, the final orders in the judgment are equally important amongst the all other basic requirements of a judgment. Hence, at the end of the judgment state clearly and precisely the orders that are being made so that both the Registry and the parties are left in no doubt as to compliance.


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Giving Reasons

27. The obligation to give reasons for the conclusion reached and the orders proposed is fundamental to the judicial process. In that regard the observations of the Court of Appeal in Flannery and Another – v- Halifax Estate Agencies Ltd [2000] 1 All ER 373provide useful guidance for judicial officers. At page 377 the Court Said:

“We make the following general comments on the duty to give reasons:

(1) The duty is a function of due process and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties, especially the losing party – should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in Ex parte Dave) Whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.

(2) The first of these aspects implies that want of reasons may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself.

(3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter. Whether there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which the claims to recall, it is likely to be enough for the judge (having, no doubt, summarized the evidence) to indicate simply that he believes X rather than Y; indeed, there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judgment enters into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation whereas here there is disputed expert evidence; but it is not necessarily limited to such cases.

(4) This is not to suggest that there is one rule for cases concerning the witnesses’ truthfulness or recall of events, and another for cases whether the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same: the judge must explain why he has reached his decision. The question is always,

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what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword.”

[Italic added]

Style

28. Although individual style in terms of sentence formation and vocabulary is not a matter for me to discuss, there are a number of points which should be considered.

a. General observations

- grammar, expression, spelling

- use of the active voice rather than passive

- avoid sarcasm, humour, anger, morality, compassion

- Latin expressions (clear, concise, and simple)

- avoid lengthy and/or complex sentences

- avoid personal thoughts

- in appearances it should be “Counsel:” and not “Counsels:”.

b. Quotations

If you need to quote some material directly from a reported or unreported decision, from a textbook or a digest or from a publication with annotated case law, it must be made clear that you are quoting. Otherwise it becomes plagiarism. Unless the quotation is merely a couple of lines in which case quotation marks (“ ”) and acknowledgment is sufficient, the quotation should be clearly identified as such by either indenting, italics or bold print or all three. The source of the material should be accurately and fully stated.

c. Reproduction of evidence This is very common in some of the judgements which I have read both in the

civil and criminal divisions. The most famous “word” I have noticed in many of the judgments is; “nj;a”. I have extracted a passage from a criminal judgment of a high court to explain this scenario as the verbatim of it appears as follows;

“fuu kvqfõ me'id 04 jkafka urKlref.a nd, u,a,S jk wurisxyf.a kqjka

pdurh' 96'03'18 Èk iji ñh .sh whshd wrlal= fnda;,hla ìõj nj;a" rd;%S 8'00 g

muK mshodif.a ksjig hk nj mjid ksjiska msg;aj .sh nj;a" bkamiq urKlre

ksjig fkdmeñKs nj;a idlaIs foñka m%ldY fldg we;' urKlre .ek fiùug

.fï wh ksjig meñKs nj;a" ú;a;slre o ta w;r isá nj;a" biaf;damamqj <Õ

;snQ fld< lE,a,la fmkajd ú;a;slre fï l=ula oehs kqjka pdurf.ka úuiQ nj;a"

túg fld< fudlg o lshd kqjka pdur tlS fld< lE,a,g mhska .eiQ nj;a" miqj


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n,k úg tu fld<h y;rg kjd fïfi Wv ;nd ;snQ nj;a" tlS ,smsfha ;snqfKa

ú;a;slref.a ÈhKsh jk iqÔjdf.a w;a wl=re nj;a jeäÿrg;a m%ldY fldg we;'

iqÔjd ;udf.a mx;sfha bf.k .kakd nj;a" ;ud yd iqÔjd mdief,a § fmd;a udre

lr .kakd neúka tu ,smsfha ;snqfKa iqÔjdf.a w;a wl=re njg ;ud y`ÿkd .;a nj;a

idlaIslre jeäÿrg;a m%ldY fldg we;'ZZ

29. There, in the above passage I cannot imagine the purpose of reproducing such statements made by the witnesses in a judgment. There cannot be a meaning at all by doing it either. Rather than analyzing the evidence and deciding as to what fact or factors have been established or not on that particular portion of evidence pertaining to the charge/s, it is visible from this kind of practice, that some judges are used to reprint the evidence throughout the entire judgement and used to state what the witness said in evidence of its verbatim. This is not what is meant by scrutinizing or evaluation or examination of evidence by a trial judge.

Taking time

30. Having prepared your first draft, no harm you pause and return later to it. Sleep on it. When you return to it you will readily identify inaccuracies and errors. There will be omissions in the facts and the findings of fact may appear illogical. The sequence will appear wrong. You may realize that the conclusion cannot be supported or justified. Several drafts later you will have arrived at your written judgment. In the process you are also “editing” your judgment to eliminate repetition, irrelevant findings of facts and lengthy quotations. However, all of those needed to be done well in advance the date of the judgement.

Amendment of judgment

31. Section 189 of the Civil Procedure Code permits the court to make amendments to judgments, decrees and orders.

189 (1) – the court may at any time, either by on its own motion or on that of any of the parties, correct any clerical or arithmetical mistake in any judgment or order or any error arising therein from any accidental slip or omission or may make any amendment which is necessary to bring a decree into conformity with the judgment.

(2) – Reasonable notice of any proposed amendment under this section shall in all cases be given to parties or their registered attorneys.

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Inapt/ antagonistic/ inimical comments

32. I will now reconnect my thoughts with the comment I made in paragraph 05 above.

33. There have been instances where some judges had made adverse comments in open court with regard to their personal feelings over certain kinds of disputes which have later become a point for public scrutiny and critic or may have caused serious concern of the judicial service commission.

34. I have come to know about an incident in a case where a senior district judge has said in open court “Oh... this is that toilet case right? ”...and so on in an application made by a party seeking an enjoining order and an interim relief which made the entire audience in the court room and the litigant in particular into a ridicule and had gone to the extent that the matter was brought to the notice of all possible authorities to look into and had urged for an inquiry.

35. It may be a case involving a toilet and may have been appeared to the particular judge as a matter for him to laugh or taken as a matter of comic. But, for the party who is affected by such an agony that the bathroom of the upper floor draining through his apartment is a grievous and urgent situation to bring it to the court seeking the last recourse by an order of the court. The affected party may have had a serious issue to be tried and a justifiable course of action.

36. In a paper reproduced in (1990) 64 A L J 691 delivered by the then President of the New South Wales Court of Appeal, The Hon Mr. Justice Michael Kirby CMG at the First Australian conference on Literature and the Law at the University of Sydney in April 1990, had to say this;

“There are many other attempts at opinions in verse in the United States. Some of them have resulted in disciplinary action against the judge involved, when deemed to have gone too far even for the tolerant taste of American lawyers.

-In re Inquiry relating to Rome 218 Kan 198; 542 P 2d 676 (1975). In that case a Kansas State Court trial judge placed a prostitute on probation for soliciting an undercover policeman. He expressed his reasons in an opinion written in verse which led to an inquiry into alleged improper judicial conduct. See Jordan, 702. Lord Mansfield tried poetry in The King v Shipley (1784) 4 Dougl 73; 99 ER 774.”

37. Another matter that I have been worrying and wanted to state here is that there have been instances where some judges used to state in open court the width and breath of their judgment. If I take an example, it is alleged that one senior District judge in open court has said “I can write the order in this matter in a half an hour’s time and in just few lines without even wasting a full page of a half


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sheet”. zz^ug fï ksfhda.h msgq Nd.hlska" meh Nd.hlska fokak mq¿jkaZZ& But, later, it had been revealed that it had been taken nearly 04 months and number of postponements (05) to finally deliver the order for the same judge who made the above styled adverse comment. Isn’t this an example of a real boomerang?

38. Therefore, judges cannot take the lawsuits of parties for their hilarity. This will not only tarnish the image of the judiciary but, certainly a matter of prejudice over the dispute at hand well before handing down the ruling on it. We must listen to the submissions, and then make whatever the order/s we desire to pass mutely and irrespective of the type of the dispute that is to say even in a case involving a toilet. We must never indicate in open court or otherwise which colour it would be of our decisions until they are penned. This principle shall equally apply to both the interim applications and trial process as well for both civil and criminal divisions.

(B- Judgments in criminal jurisdiction)

Magistrate’s Court

39. The Code of Criminal Procedure Act 1979 (CCPA) provides provisions for judgments and verdicts. The Cap. XVII of the CCPA deals with the trials of cases where a Magistrate’s court has power to try summarily. Nowhere under CCPA it states anything regarding “judgment” by a Magistrate’s court. It only speaks of “verdict”. the word “verdict” in criminal jurisdiction usually means the decision of the Jury as to whether the accused is guilty or not. The difference between “judgment” and “verdict” should be in terms of the CCPA is that the verdict is the decision of the Magistrate stating only the fact whether the accused is guilty or not. The judgment is the statement of the judge which contains the reasons under which the verdict was arrived into.

Section 185 of the CCPA reads thus;

- If the Magistrate after taking the evidence for the prosecution and defence and such further evidence (if any) as he may of his own motion cause to be produced finds the accused not guilty, he shall forthwith record a verdict of acquittal. If he finds the accused guilty he shall forthwith record a verdict of guilty and pass sentence upon him according to law and shall record such sentence.

40. Thus, the CCPA does not speak of a “judgment” by a Magistrate. However, in my view when a Magistrate is acting in terms of and under section 186 of the CCPA, it should be considered as a judgment.

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Section 186 – Verdict

- Anything hereinbefore contained shall not be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case, but he shall record his reasons for doing so;

- Provided that, if the Magistrate is satisfied, for reasons to be recorded by him, that further proceedings in the case will not result in the conviction of the accused, he shall acquit the accused.

41. There again a Magistrate is required to give reasons only when he passes a verdict of acquittal and / or discharge if we look at strictly at the provisions hereinbefore discussed under and in terms of the CCPA.

High Court

42. Cap. XVIII of the CCPA deals with the trials by High Court.

43. Unlike in the Magistrate’s court, a judge of the High Court is required to pass a judgment under and in terms of section 203 and section 238 of the CCPA, irrespective of whether it is trial by judge of the High Court without jury or trial by jury respectively and also irrespective of whether it is an order for acquittal or conviction in terms of section 203 and only of a conviction of the accused in terms of section 238.

Section 203- Judge to pass judgment

- When the case for the prosecution and defence are concluded, the Judge shall forthwith or within ten days of the conclusion of the trial record a verdict of acquittal or conviction giving his reasons therefore and if the verdict is one of conviction pass sentence on the accused according to law.

Section238- judgment in case of conviction

- If the accused is convicted the Judge shall forthwith pass judgment on him according to law.

Conclusion

44. Nothing stated above should be read as an attempt to discourage anyone from developing his or her own style of judgment writing so that you are able to accurately and fairly apply the law to the facts and ultimately bring about a just result according to the circumstances of the case for which I have no moral right to interfere or to opine.

45. Let me conclude this paper by quoting from a paper reproduced in (1990) 64 A L J 691 delivered by the then President of the New South Wales Court of Appeal,


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The Hon Mr. Justice Michael Kirby CMG at the First Australian conference on Literature and the Law at the University of Sydney in April 1990:

“Individual opinion-writing and the dissenting judgment are the hallmarks of a system of justice which truly respects the independence of its judges and acknowledges the judge’s only masters to be the law and conscious. Diversity of Opinion - and one might add of judgment writing style – is a great strength of the common law judicial tradition. It provides a never-ending stream of ideas and of ways to communicate them. Ideas are the most powerful engines for change and progress. Continuity amidst constant of substantive law and orthodoxy amidst experimental variety in its exposition have helped to develop the of a rural society of feudal England into the formidable body of the common law today. It is a body of law laid down by the succeeding centuries of judicial opinion writing. It is this happy mixture of stability and movement which explains why that most lasting institutional legacy of the British Empire – the common law – continues to flourish in so many corners of the world and to serve in these fast-changing times the legal needs of a third of humanity. It is the privilege of each succeeding generation of judges of the common law to nurture and advance this precious legacy.”

46. To end with, I would humbly say that if I have been able to add at least a few different words to your vocabulary by this unpretentious effort that I took up to shape up the art of writing judgments, my utmost pleasure. Above all and in addition, let us endorse the brevity, simplicity and clarity – the most blessed trinity of good judgment style.

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IMPORTANCE OF SAFEGUARDING BANKING SECRECY

Dilini Nilanga WilathgamuwaSenior Assistant Director Legal and Compliance Department Central Bank of Sri Lanka

LL.M (Colombo), MA (Kelaniya), BA (Colombo)

Attorney – at – Law, Intl. Diploma in Compliance (UK)

Abstract

One of the most significant and well recognized rules of banking law is that a bank must maintain strict confidentiality towards the information of its customers which is known as banking secrecy. However, there are some exceptions for banking secrecy that are defined by the common law. In this article, it is expected to discuss on banking secrecy giving prominence to the existing literature, origin and foundation of banking secrecy, importance of lifting it, exceptions for the concept of banking secrecy and banking secrecy in Sri Lanka.

1. What is Banking Secrecy?

Banking secrecy is a legal principal in some jurisdictions that the banks are not allowed to provide personal and account information of their customers to third party subject to some conditions. Although, the meaning of banking secrecy is widely understood, there is no explicit definition at international level1. Savona2 states that banking secrecy is a professional obligation, meaning that financial institutions shall not expose a customer’s financial information and they even have the right to resist any third party’s inquiries in order to protect the customer’s wellbeing.

One of the conditions of the relationship between a bank and its customers is that the customers’ dealings and financial affairs will be treated as confidential. This rule, however, does not apply to the customers’ credit information which is shared rather freely among lending institutions. Also, due to certain laws (such as anti-terrorist and anti-drug-trade legislation) and tax treaties between nations, banks must release specific information to help fight against terrorism and illegal drug trade, and prevent tax-evasion and money laundering3.


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2. Origins and foundation of Banking Secrecy

The inception of the banker, customer relationship commence with the opening of an account by a customer with the respective banker. This relationship creates some reciprocal rights conferred and reciprocal obligations imposed to the banker as well as the customer. Accordingly, one of the most important and well established rules of the banking law is that a bank must observe strict confidentiality about its customer’s accounts4. In the beginning, the relationship between banks and customers were based on trust and confidence. At that time, the customer had trust and confidence that the banks would not divulge information about his financial transactions. Thereafter, this trust developed into a legal duty of the banker’s secrecy/confidentiality under the common banking law.

When dealing with the financial transactions of a customer, the bank receives, handle and process the valuable information relating to the customer’s financial status. Such information and knowledge reflect the private and public life of the customer and therefore, there may be a tendency to misuse this information by a third party. Hence, the concept of banker’s duty of secrecy/confidentiality was developed under the common law. Under this concept, the banks are not permitted to unlawfully disclose the information and financial condition of a customer and therefore, such information is protected from other parties such as individuals and states subject to some exceptions. The duty of confidentiality arises upon the opening of an account by a customer with a bank and it continues even after closure of the account.

However, in respect of a bank, banking secrecy is a professional obligation and a right while it is a privilege in respect for a customer. Hence, a bank has a right to resist an unauthorized party’s intervention on customers’ information in order to protect customer’s interest.

In 1930s, the first effective banking secrecy statute was introduced in Switzerland, due to the conflict that arose between Jews and German Gestapo. As a result, the Swiss government codified its practice of maintaining the secrecy of its customers’ accounts. Thus, the first banking secrecy law came into being5.

During the last few decades bankers have significantly expanded their activities which have greatly challenged the concept of banking secrecy. However, there are many reasons which emphasize the importance of banking secrecy at present. ‘Secrecy laws have served to shield persons from financial loss in countries plagued by instability, weal currency and run-away inflation rate. Secrecy laws have served to protect wealthy individuals or those who promote unpopular political causes by allowing them to hide their assets to avoid the threat of kidnapping or persecution’6.

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Further, banking secrecy prevents commercial competitors from trying to discover financial information about their opponents.

It is clear that an individual’s banking information directly reflects that individual’s economic situation, personal interests as well as political beliefs. Hence, the banking secrecy can be identified as a part of individual’s privacy rights7. On the other hand, banking secrecy can be identified as contractual obligation as the banks are supposed to be loyal to customers in terms of the principal of good faith. Further, some scholars have attempted to justify banking secrecy as professional secrecy as lawyer-client or doctor-patient. Due to the aforesaid different justifications of banking secrecy, its legal protection varies from country to country.

3. Exceptions for Banking Secrecy

It has been observed that there is a conflict between the need for secrecy and the need for disclosure of confidential information under the common law and legislative exceptions. In the same time Banks have to comply with the duty of secrecy as well as its exemptions at the same time when performing their banking business which is not an easy task. However, banks need to be vigilant and prudent when striking a balance between these two essentials as any errors made by banks will have costly repercussions. In older cases such as Tassel vs. Cooper8, Hardy vs. Veasey9, the court emphasized the duty of a banker not to disclose the information pertaining to his customers. Accordingly, banks were not permitted to disclose the information and if they did so, banks were liable for damages.

Tournier vs. National Provincial and Union Bank of England10 can be identified as the most remarkable case in this regard. In this case, the English judiciary discussed the above concept and broadened it in a more extensive and practical manner in order to facilitate the new developments in the banking sector. As per the Banker LJ, ‘the credit of the customer depends very largely upon the strict observance of that confidence’ seems to be consistent with the rationale of the aforesaid concept. Further, it can be observed that Tournier case established that there is an implied agreement between the banker and the customer that banker should maintain strict confidentiality towards its customers subject to some exemptions. Accordingly, banker’s duty of confidentiality is not an absolute duty and therefore, disclosure of customer information was held to be permitted only;

• Where the bank is compelled by law to disclose the information

• When a banker owes a duty of disclosure to the public.

• If disclosure is required in the interest of the bank

• In the event that the customer has agreed to his/her information being disclosed.


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However, the above exemptions laid down in Tournier case confirmed in the case of Christofi vs. Barclays Bank Plc11.

As discussed, this decision clearly explained the extent of the banker’s duty of confidentiality. All information and transactions including securities and guarantees, debit or credit balances information obtained from outside sources in order to precede the banking business with the customer would be covered by this duty. In the case of Royal Bank of Canada vs. IRC12, Megarry J stated that ‘a banker’s duty of secrecy to its customers is not confined to ordinary banking transactions but would extend to any banking transaction which is effected for a customer, ordinary or extraordinary’.

4. Banking secrecy: International Perspective

It is clear that the banking system or transactions no longer depend on national boundaries. Hence, the concepts relating to banking system also vary from country to country in order to promote the global financial system. This situation is common to the concept of banking secrecy. Some countries such as Netherlands, Spain, Sweden and Japan do not have specific statutory provisions on banking secrecy.

Many other countries follow the implied contractual obligation as introduced by the common law. In some countries breach of banking secrecy is an offence. For example, in Switzerland, both the intentional and negligent disclosure of secret banking information is punishable by criminal penalties13. As a result, Switzerland is able to attract foreign capital and it is the world’s third large financial center. On the other hand, even though Switzerland is considered as ‘secrecy heaven’, both the Swiss Federal Code of Criminal Procedure and Civil Procedure imposed a public duty to testify and to produce documents. When consider the situation in USA, it could be observed that the scope of the banking secrecy varies from state to state and it is based on the right to personal privacy.

Some scholars are of the view that the classification of jurisdiction based on banking secrecy is not easy as data collection and accurate evaluation of the data is a difficult task. However, considering the secrecy level, Philip R.Wood tentatively classifies the jurisdictions as follows14.

Low Secrecy United StatesMedium Secrecy Australia, Britain, Canada, Ireland

Italy, Japan, Jersey, numerous otherCommonwealth countries includingIndia, Malaysia, Singapore, andScandinavian countries

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Quite High Secrecy Denmark, France and GermanyHigh Secrecy Austria, Greece, Liechtenstein,

Luxembourg, Portugal andSwitzerland (some cantons only)

Given the circumstances, some scholars argued that cross border banking could not be properly aligned with the concept of banking secrecy. Since the prominence is given to the banking, secrecy is different from jurisdiction to jurisdiction, it is not easy to strictly conserve the banking secrecy in cross border transactions. However, some countries have been attempting to resolve this issue by entering into international treaties. Further, there were some cases where mutual assistances were obtained even in the absence of treaties. This was discussed in the case of Spencer vs. The Queen15. Given the circumstances, it could be seen that most of the jurisdictions have realized that ‘the modern state could not properly function if its members could keep banking information secret’16 and therefore, it may not be prudent to maintain banking secrecy as a barrier for cross border transactions in this modern globalized economy.

5. Universal attempts on lifting of Banking Secrecy

As discussed, although the traditional boundaries of banking secrecy are being faded, banking secrecy is an essential element of individual privacy as well as the fight against money laundering. Hence, it is generally accepted that the banking secrecy is not supreme and it should be lifted in certain cases.

Accordingly, various international documents such as 1988 Vienna Convention, 1990 Strasbourg Convention, 2000 Palmero Convention, the FATF 40 Recommendations and EC Directives have emphasized the importance of lifting the banking secrecy. In terms of the provisions of the above documents, a party cannot refuse to act on the ground of banking secrecy. Further, when dealing with mutual legal assistance between parties, any party cannot raise banking secrecy as a ground for refusing cooperation. As per the FATF Recommendations, banking secrecy should be lifted by the way of obtaining information about their customers and reporting large and suspicious transactions17. Further, EC Directives also requires the identification of customers by banks when entering into business18. These provisions are intended to prevent banking secrecy laws act as hindrances of the investigation and prosecution of money laundering crimes.

Furthermore, due to the pressure given by aforesaid international documents, law enforcement authorities in the most of the jurisdictions have taken provisional


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measures to uplift the banking secrecy through procedural laws while adopting the legislations for supporting the fight against the money laundering.

6. Banking Secrecy in Sri Lanka

In many other countries including England, bankers’ duty of confidentiality/ secrecy about information in hand is an established principle of English common law. However, in Sri Lanka, these secrecy provisions have been recognized in section 77 of our Banking Act, No.30 of 1988 in line with the Tournier decision. In terms of this decision, every director, manager, officer or other person employed in a bank should observe strict confidentiality with regards to the information that come into their knowledge in the discharge of his duties subject to four exceptions19. These exceptions are almost similar to exceptions introduced in Tournier decision except in one situation. Section 77 does not recognize the common law exception that a banker may disclose information when it has a public duty to disclose. On the other hand, it may be still possible to argue that the exception given in the section 77 in relation to ‘performance of duties’ is wide enough to cover the public duty exception identified in the common law20.

The liability for the breach of banking secrecy varies from jurisdiction to jurisdiction. Some countries like Singapore, Hong Kong, Switzerland and Sri Lanka consider breach of banker’s secrecy as a criminal liability while many countries follow the implied contractual duty approach in line with the Tournier decision. Accordingly, any person who breaches the secrecy law mentioned in the Section 77 of Banking Act, shall be liable for conviction before a magistrate to imprisonment of either description for a term not exceeding three years or to a fine not exceeding one million rupees or to both such imprisonment and such a fine21.

When considering the legal regime of Sri Lanka, the exceptions for the banker’s duty of secrecy identified in the common law have been legitimized by various laws for the following purposes.

6.1 Prevention of Money Laundering and Suppression of Terrorism

There were global responses to curb money laundering and international terrorism which was activated by the 9/11 terrorist attacks in New York. Subsequently, most of the countries including Sri Lanka have taken appropriate measures to prevent money laundering activities by enforcing anti-money laundering regulations. In response, Sri Lanka also enacted following laws to provide necessary measures to combat and prevent money laundering.

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(i) Prevention of Money Laundering Act No. 05 of 2006(ii) Convention on the Suppression of Terrorist Financing Act No. 25 of 2005(iii) Financial Transaction Reporting Act No.06 of 2006Financial Transactions Reporting Act, No. 06 of 2006 (FTRA provides for the

setting up of a Financial Intelligence Unit (FIU) in the Central Bank of Sri Lanka as a national central agency to receive analyze and disseminate information in relation to Money Laundering and the Financing of Terrorism.

The FTRA obliges institutions to report to the FIU cash transactions above a value prescribed Rupees One Million, all electronic fund transfers above such sum are all suspicious transactions. Further, persons making reports under the Act are protected from civil or criminal liability22. The same provision could be seen in the Prevention of Money Laundering Act as well23. Further, under this Act, it is the banks’ duty to report if any suspicious transactions gone through its customers accounts24. This can be considered as an exemption for bankers’ duty of confidentiality/ secrecy to comply with any of the provisions of Banking Act, No.30 of 1988 or any other written law25.

6.2 Tax requirementsIn terms of the Inland Revenue Act No.10 of 2006, every bank is required

to maintain proper records of its customers and divulge such information when requested by Commissioner of Inland Revenue. In the event of such a request, no bank can refuse to disclose the information by using the secrecy provisions.

6.3 Supporting the court proceedingsWhen a court of law requires the disclosure of information from a bank

under the Evidence Ordinance in order to support the court proceedings, the bank should comply with such an order26. This has confirmed in the case of Agostinu vs. Kumaraswamy27.

Further, at the trial of a person for an offense under the Bribery Act, the court or the prosecutor may, notwithstanding anything to the contrary in any other written law, call any such witness, or use or produce any such documents28.

6.4 Maintaining financial system stabilityBy using the powers vested in the Monetary Board of the Central Bank of

Sri Lanka, the Director, Bank Supervision Department of the Central Bank is permitted to examine or request to submit information from licensed commercial banks operating in the country. If such a bank fails to produce the information, the bank shall be liable for criminal prosecution29. It can be argued that this provision of banking act can be considered as an exception of the banker’s duty of secrecy.


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6.5 Credit Information Bureau

The Bureau permits the request of credit and financial information available with lending institutions including license commercial banks, Central Bank, any governmental agency or institution declared by the Minister in-charge of the subject of finance and various institutions30 at any time.

6.6 Right to Information

In terms of the Article 14A of the constitution of the Democratic Socialist Republic of Sri Lanka, which inserted to the constitution by the nineteenth amendment in 2015, Right to Information is considered as a fundamental right in Sri Lanka. After enacting Right to Information Act, No. 12 of 2016 (RTIA), subject to the provisions of the section 5 of the RTIA, every citizen shall have a right to information which is in the possession, custody or control of a public authority31. Accordingly, banks established by or under any written law are also coming under the definition of the public authority32. Further, the RTIA highlighted that the provisions of RTIA prevail over other written law33. Thus, it is clear that the provisions of RTIA overridden the banker’s duty of confidentiality/secrecy recognized in section 77 of the Banking Act.

7. Conclusion

Even though there is no internationally accepted definition for banking secrecy, it is commonly understood that banking secrecy is an essential element of banking business. As discussed, due to the different justifications for the banking secrecy, its legal protection varies from jurisdiction to jurisdiction. Hence, some scholars argue that it is a hindrance for cross boarder banking while some argue that the concept of banking secrecy is being blurred in this globalized economic world. However, it is clear where banking secrecy should be lifted in the fight against money laundering in order to ensure a safe and secure society.

End Notes

1 He Ping, Banking Secrecy and Money Laundering, Journal on Money Laundering Control, Vol 7. No.4,2004, P.376.

2 Savona, E.U (ed.), Responding to Money Laundering: International Perspectives, 1997.3 http://www.businessdictionary.com/definition/bank-secrecy.html (Accessed on

23.10.2018).4 Wickrema.S.Weerasooriya, The Financial System, Banking and Cheque Law in Sri

Lanka, The Institute of Bankers Sri Lanka, 1998, P 243.

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5 G.J Moscarino and M.R Shumaker, ‘Beating the Shell Game: Banking Secrecy Laws and their impact on Civil Recovery in International Fraud Actions’, Journal on Money Laundering Control, Vol.1 No.1, 1997, P.42.

6 Savona, E.U (ed.), Responding to Money Laundering: International Perspectives, 1997, P. 185.

7 R. Pasley, ‘Privacy Rights vs, Anti Money Laundering Enforcement’, University of North Carolina, 2002.

8 (1850) 9 CB 509.9 (1868) LR 3 Exch 107.10 (1924) 1 KB 461.11 1998 1 WLR 1245.12 (1972) 1 All ER 225.13 M.G Corrado, ‘The Supreme Court’s impact on Swiss Banking Secrecy’, The American

University Law Review, The American University, 1988.14 Philip.R. Woods, ‘International Law of Bank Secrecy’, Current Legal Issues Affecting

Central Bank, Vol 5, Ed:Robbert .C Effors, International Monetary Fund, 1998, P.411.15 21 Dominion Law Report 756.16 Cranston Ross, Principles of Banking Law, 2002 p. 257.17 Article 10, The FATF Recommendations on Money Laundering, 1996.18 Article 3(1), Council Directive on Prevention of the use of the Financial System for

the Purpose of Money Laundering, 1991.19 Section 77, Banking Act No 30 of 1988.20 Wickrema Weerasooriya, ‘Banker’s Duty of Secrecy to Customers’ Banker’s Journal,

Vol. XIX, No.1,2000.21 Section 77, supra n. 12.22 Section 11, Financial Transaction Reporting Act No.06 of 2006.23 Section 16, Prevention of Money Laundering Act No.05 of 2006.24 Section 5(1), ibid.25 Section 77 (1) c, Banking Act No 30 of 1988.26 See section 90(A) to 90(E), Evidence Ordinance.27 59 NLR 132.28 Section 11, Bribery Act No.11 of 1954.29 Section 41, Banking Act No.30 of 1988.30 Section 7B (1), Credit Information Bureau Act No.18 of 1990.31 Section 3, Right to Information Act, No. 12 of 2016.32 Section 43, ibid.33 Section 4, ibid.


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THE RIGHT OF THE ACCUSED TO SPEEDY TRIAL

Priyantha LiyanageLLB(Colombo), LLM(Colombo), Accredited Mediator (Singapore Mediation Centre)

Additional Magistrate, Colombo.

“Justice Delay is justice Denied” is a famous legal cliché frequently voiced by judges and lawyers. It reflects the importance of timely justice. Delay in delivering justice affects not only the prosecution but the rights of the accused as well. Currently Speedy trial in criminal litigationis a fundamental right recognized in many jurisdictions.

International law on human rights and certain constitutions have recognized the right to speedy trial in criminal prosecutions. For instance Article 9(3) of the International Covenant on Civil and Political Rights, states that “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.”

Article 5(3) of the European Convention on Human Rights states that“Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article 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 pending trial.”

A Constitutional Right

Sixth Amendment to the American Constitution guarantees the right of criminal litigants to a speedy trial. As far as the Sri Lanka constitution is concerned there is no specific provision which grants the rightto speedy trial. However Art. 13(3) has enshrined the right to “fair trial”. The concept of fair trial has been broadly interpreted by the Indian Supreme Court so as to engulf the right to speedy trial

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albeit the Indian constitution too does not have a specific provision to that effect.Art.21 of the Indian Constitution guarantee the protection of life and personal liberty deprivation of which is permitted only according to procedure established by law.The procedure established by law should be adopted in a manner which ensures a fair trial. Speedy trial is an essential ingredient of a fair trial. Therefore it has been observed by the Indian Supreme Court that speedy trial is implicit in the above provision of the Indian constitution.

His Lordship the Chief Justice Bhagwati whose contribution to the development of Indian jurisprudence is immense, expounded the duty of the state to guarantee the right to a speedy trial in his judgment in the case of Hussainara Khatoon & Orsvs. Home Secretary, State Of Bihar1. His Lordship stated

“The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State. It is also the constitutional obligation of this Court, as the guardian of the fundamental rights of the people as a sentinel on the qui-vive, to enforce the fundamental right of the accused to speedy trial by issuing the necessary directions to the State which may include taking of positive action, such as augmenting and strengthening the investigative machinery, setting up new courts, building new court houses, appointment of additional judges and other measures calculated to ensure speedy trial.”

In the light of above reasoning it is observed that Art. 13(3) of the Sri Lanka constitution too implicitly recognize the right to speedy trial. The denial of timely justice is denial of fair trial and more over denial of justice entirely. Accordingly, the drafters of the present constitution might have had in their mind to ensure the right to speedy trial when they introduced the right to fair trial to the constitution. On the other hand Superior courts have often protected the right to speedy trial in circumstances where trial has been lengthened for unjustifiable reasons. Followings are two such instances. In Ananda Vs A.G2. the Appellant was charged with causing grievous hurt on 20.12.1976. He was convicted on 9.2.1982, to a term of 10 months rigorous Imprisonment. The appeal came up for argument on 28.4.1995.It was held that the accused has a right to be tried and punished for an offence committed within a reasonable period of time, depending on the circumstances of each case. A delay of over 18 years to dispose of a Criminal Case was observed to be much longer period by any standard and delays of this nature were generally regarded as mitigating factors. It appeared to the court that the Appellant has turned over a new leaf. The


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court also observed the appellant had spent a period of 9 months in remand custody from 4.5.81 - 9.2.82, in connection with the case and there was no indication on record to show that the Magistrate had considered this matter in passing the sentence of the Appellant. The wordings of Justice Rajaratnam . in Karunaratne Vs. The State3,illustrates the repercussions and the impact on the accused’s family of prolonged trial. In that case the accused was charged with committing the offence of Criminal Breach of Trust in May 1965. He was convicted in August 1972 and his appeal was heard in October 1975. Rajaratnam, J. during the course of his judgment observed “ I am certain that this was not a case where the sentence would have been suspended by the judge in view of the correct view he formed with regard to the gravity of the offence. But on the other hand, when a deserving sentence has to be confirmed ten years after the proved offence, I cannot disregard the serious consequences and dislocation that it can cause in the accuser’s family. If there was a final determination of this case within a reasonable time the accused by now would have served his sentence and come out of prison to look after his family. I find however, that the charge has been hanging over this accused for the past ten years till it reached a conclusion before us. The effect and consequences of this sentence cannot be totally disregarded when the sentence is imposed ten years after the proved offence ... . The fact that I am unable to lay my hands on any precedent does not deter me from considering this delay in the circumstances of this particular case as a relevant factor for the imposition of an appropriate sentence.”

Statutory Provisions and Case LawAvailability of statutory provisions in Sri Lanka enables to avoid irrational

postponements of trials in original courts. Criminal Procedure Code is not without provisions to protect the right of the accused to a speedy trial.Sec 263. (3)provides that an inquiry or trial in a Magistrate’s Court shall not be postponed or adjourned on the ground of the absence of a witness unless the Magistrate has first satisfied himself that,

the evidence of such witness is material to the inquiry or trial and that reasonable efforts have been made to secure his attendance, and has recorded the name of such witness and the nature of the evidence which he is expected to give.

In Adrian Dias Vs Weerasingham4 it was held that when, in a summary case, the prosecutor is not ready to proceed with his case on the date of trial, even after he has been given ample opportunity to place his evidence, an order of Court refusing postponement and “discharging” the accused operates as an acquittal. It is not open then to the prosecutor to institute fresh proceedings upon the same charge.

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In K. P. Karunawathie Vs K. P. Kusumaseeli5 after several dates of trail the Magistrate had refused a postponement of the trail and in discharging the accused had also ordered costs against the complainant. The complainant-petitioner sought the Attorney-General’s permission to appeal against the Magistrate’s orders to the Court of Appeal. The Attorney-General refused permission. Thereafter the complainant petitioner sought to revise the Magistrate’s orders.The court of appeal in this case refused to interfere with the orders of the Magistrate refusing to grant a postponement of the trial.

However the above judgments and the provision can be relied upon in circumstances where the prosecution has failed to take all reasonable efforts to bring their witnesses and the evidence of the witness is not material to the trial6. The magistrate is required to mention in the case record the existence of those factors set out in the above section.Failure to mention those factors has led the superior courts to set aside those orders7.

Other statutes like Release of remand Prisoners Act and the Bail Act are aimed at ensuring the liberty of the accused pending the trial and not the speedy trial.Therefore specific provisions are required to be introduced or innovative interpretations are necessary to discourage the prosecution’s unjustifiable applications to postpone the trials due to the fact that their official witnesses are engaged in various other duties undermining the authority of the court and their duty to assist the justice system of the country.

The significance and advantages of speedy trial was explained by the United States Supreme Court in Barker Vs Wingo8. Most importantly the court laid down four factors to be considered in measuring the gravity of the length of the trial. The court stated

“The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused. The inability of courts to provide a prompt trial has contributed to a large backlog of cases in urban courts which, among other things, enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the system.

A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such


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factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.”

In Strunk v. United States9, the USSupreme Court ruled that if the reviewing court finds that a defendant’s right to a speedy trial was violated, then the indictment must be dismissed and/or the conviction overturned. The Court held that, since the delayed trial is the state action which violates the defendant’s rights, no other remedy would be appropriate. Thus, a reversal or dismissal of a criminal case on speedy trial grounds means that no further prosecution for the alleged offense can take place.

It is worth to note that the responsibility of speedy justice is not solely upon the judiciary. Justice system consists of many other state organs whose contribution is vital for existence of an efficient and effective justice system. I might not earn criticism and lose goodwill when I mention that the experience of a Sri Lankan litigant who is a party to a criminal action is bitter when the time to receive justice is concerned. Criminal cases consume years for Attorney General’s instructions and reports from the Government Analyst.This can be identified as a major reason for backlog of criminal cases in original courts. Increase of carders in these institutions and establishing regional branches at provincial levels perhaps might make these institutions more efficient. Therefore timely justice is a collective effort of all organs affiliated to the justice system.

In conclusion it should be noted that justice delay might lead to circumstances where the citizens will seek extra judicial solutions when a wrong is committed. The remedy is establishing an efficient and effective justice system and not short cuts to dispose cases.

Endnotes

1 1979 AIR 1369, 1979 SCR (3) 532. See also Maneka Ghandi Vs Union of India 2 1995 (2)SLR 315 3 78 NLR 4134 55NLR1355 1990 (1) SLR 1276 Perera Vs Perera 43 NLR 1927 See Sivarajasingham Vs S. I. Point pedro 49 NLR 302,King Vs Fonseka 47NLR 207,

Perera Vs Perera (supra)8 407 U.S. 514 (1972) 407 U.S 5149 412 U.S. 434 (1973)

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APPLICABILITY OF THE HOUSE AND TOWN IMPROVEMENT ORDINANCE

Chinthaka Srinath Gunasekara (LLB, LLM-Colombo) District Judge, Horana.

Introduction

Sri Lanka inherited much legislation from the British colonial period, that were properly planned to address future concerns. As such, other than small amend-ments, many statutes have laid the foundation of the present legal system. Unfortu-nately, non-compliance of some legislations due to unawareness, neglect, deliberate acts, political influence, bias or favours etc: by the officials have created many prob-lems and legal issues today. In another words, misusing or non-application of the legal provisions at proper stage by the competent officers have caused severe damage to the social system. This note focuses on House and Town Improvement Ordinance, (hereinafter referred as Ordinance) as one example out of many.

The objective of selecting the ordinance for this note is based on several rea-sons. Though the ordinance is older than 103 years, statutory provisions are still very important today than the period it was enacted. The purpose of it was to pro-vide for better housing of the people and improvement of towns. The provisions for approval of plans, demolishing of unauthorised premises and obtaining a certificate of conformity for constructions, have been introduced in 1915. But even today, after more than 100 years, still big and unsolvable issues have arisen with regard to the unauthorised constructions all over the country. Another interesting fact is that, in addition to non-compliance of the provisions of the ordinance later, people tend to turn those illegal /unauthorised constructions for their own benefit and also as a defence in some civil cases. This demonstrates our people’s attitude towards the law. This short note focuses on decided appeals based on provisions of the ordinance and is not a comprehensive research based on it.


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Background of the House and Town Improvement Ordinance

19 of 1915(severally amended)

It is very clearly stated that the main objective of the act was social welfare based on better housing for the people and improvement of towns. The act covers urban and rural areas since the pradeshiya sabhas were not existent at that time. According to Hon. G.P.S. De Silva (The president court of appeal as he was then) in the case of Dharmawardena vs Walwattage1, mentioned that

The long title of the Ordinance we are here concerned with shows that the object is “to provide for the better housing of the people and the improvement of towns”. The Ordinance read as a whole, shows that it is primarily intended for the protection of the public and the imposition of the penalties is not for the purposes of revenue.

In fact, drafters intended to create proper houses and buildings according to a plan to enable a healthy environment.

I like to add the comments of Mr. Y.G.I Saman Kumara on his article based on Planning Law in Sri Lanka2 thus, according to the Sri Lankan context, a large number of legislations have been enacted for the provision of powers necessary for planning the urban as well as rural areas. Some of these legislations are designed to encourage people for development of urban lands. Others are designed for the control of development activities initiated by private sector parties in order to avoid environmental and health risks, security purpose, city beautifications and any other social requirement initiated by the planning agencies. There are more than 100 ordinances and acts passed by the parliament of Sri Lanka that directly or indirectly influences the urban environment and the livelihoods of the people.

This ordinance was enacted in 1915 when Sri Lanka was a colony under the British rule. The H&TI Ordinance has been the oldest as well as basis for all subsequent laws of urban planning and development. As stated in the ordinance, it was expected to deal with existing problems of insanitary conditions and urban overcrowding as well as to prevent such conditions in the future. As the economic situation of most industrial countries during this period is based on the free enterprises, the state control on urban development was minimum. Most legal provisions were enabling legislations for the local authorities to manage insanitary and overcrowding situation with private sector and other civil society organizations. The ordinance had been enacted to empower the urban local authorities that included municipal, urban and town councils. It had given powers to these local authorities for the implementation

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of H&TI Ordinance in addition to any powers of such local authority under any other enactment.3

It’s pathetic to note that, in the present context the available statutes are insufficient to control the issues arisen due to rapid increase of population, and urbanization. If competent authorities neglect to address these issues, repercussions have to borne by all. The capital of Sri Lanka is also in a bad situation presently due to increase of the population with environment problems. A research based on Colombo area4 has revealed the following outcome showing the present impact.

Squatting is seen in all parts of the country. The City of Colombo accommodates the greatest number of squatters. A survey carried out under the project called Sustainable Town Ships (2006) has identified 1506 slum and shanty settlements in the city of Colombo stretching out over nearly 1000 acres of prime city lands labelled as unfit for human habitation and out of these lands about 86% is owned by the state. The survey reveals that squatters have encroached valuable lands, crown lands, wet lands and environmentally sensitive lands. Unauthorized structures spring up on private lands due to ignorance of the law, or non-compliance with the rules and building regulations laid down by the Urban Development Authority. These rules and regulations are valid for the declared areas under the Urban Development Authority Law NO. 41 of 1979. Being a gazetted area, Colombo is subject to the regulations of the Urban Development Authority Law, all constructions should comply with those legal provisions, if not; they are identified as unauthorized housing constructions. All building plans for new constructions have to be approved by the Colombo Municipal Council.

A study on unauthorized construction of houses in Colombo Chapter I in Sri Lanka during the period of 1970 to 1977, then the government distributed ownership of housing property among the people under the Rent Act No.7 of 1972 and Ceiling on Housing Property Law No 1 of 1973, resulting in the decline of housing construction. After 1977 when the government liberalized the economy, the housing property policy was spelt out mainly under the National Housing Development Authority Law, Urban Development Authority Law No.41 of 41 Of 1978, Condominium Property Law No.39 of 2003, and the concept of Swarna Boomi, which motivated people to construct houses. In Sri Lanka, unauthorized constructions are found both in urban and rural areas in every part of the country. According to urbanization scholars, “the problems associated with urbanization are most prominent in the greater Colombo area, Colombo is the main administrative and transport centre, which has led to the massive growth and domination of the urban hierarchy, which persists even today. The consequences of this centralization have increased in terms of the population


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growth and subsequent competition for housing, land and services. The situation in the shanty settlements around Colombo has become a serious problem. Less than 25% of wastewater in the Colombo Municipal Council area is treated and more than 900 tons of solid waste are collected and disposed of daily through open dumping without any sanitary precautions (COHRE - 2003). Lands within the Colombo Municipal Council area are more valuable resource than elsewhere in the country. Due to the fact those, locations of the Colombo port, many government departments, private sector establishments, wholesale trading outlets, central bus stand, court complex, and banks, so on have raised land values in this area. Colombo provides more services in terms of education, health, and recreation than any other place in Sri Lanka. Colombo has a well-organized network of highways linking various provinces and the city serves as the distributing hub for various commodities. There are many unauthorized constructions in the formal sector housing, commercial, and industrial activities by other income groups as well.5

This study shows the severity of a part of Colombo area but it is not a secret that this has become common to other areas too. It should be borne in mind that there is no lacuna in the law but non-compliance of the same is the real problem. Here, it is not expected to re-produce the whole ordinance but to revisit some provisions among the significants out of 114 sections.

Some Significant Provisions Of The Ordinance

Section 3 explains the scope of the applicability of the ordinance to all the local government areas. Thus,

a. within the administrative limits of any Municipal Council, Urban Council or Town Council;

b. within any other limits in which it shall be declared to be in force by resolution of Parliament. Since the Pradeshiya Sabhas were introduced instead of town councils at later stage (No.15 of 1987). Applicability of the ordinance has been cleared out by the supreme court by the Judgement of Saranguhewage Garvin De Silva vs Lankapura Pradeshiya Sabha and others6. (This case will be discussed later).

According to section 5, no person shall erect or re-erect any building within the limits administered by a local authority, except in accordance with plans, drawings, and specifications approved in writing by the Chairman. The duty of the chairman has been clearly explained under the section 5, whilst he has no way to act other than following the law. Thus,

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1. The Chairman shall not-a. approve any plan or specification of any building; or

b. consent to any alteration in any building,

which shall conflict, or cause such building to conflict, with the provisions of this Ordinance or any other enactment.2. Where any proposed alteration in any building involves the addition of any

room or storey to the building, the Chairman may refuse to consent to any such alteration unless the whole building or any part thereof is brought into conformity with this Ordinance or any other enactment.

3. The Chairman shall not refuse his approval or consent except on the grounds indicated in this section, or on the ground of non-compliance with any requirement made under section 8.

4. An alteration shall be deemed to cause a building to conflict with any provision of this Ordinance or any other enactment in any case in which the construction of the building, in such a manner as to include the alteration, would be in conflict with such provision,

5. The Chairman or the health officer, or any officer authorized generally or specially in that behalf by the Chairman or the health officer, may at any time during any building operations make an inspection thereof without giving previous notice of his intention so to do, and for the purpose of such inspection may enter upon the premises upon which such operations are proceeding7.

Section 13 explains the offences as follows,1. Any person who shall-

• commence, continue, or resume building operations in contravention of any provision of this Chapter;

• deviate from any plan or specification approved by the Chairman without his written permission;

• execute any building operation in contravention of any of the provisions of this Ordinance or of any local by-law;

• fail to comply with any lawful order or written direction of the Chairman;• fail to remove or pull down any building or alteration to any building erected

or made for a temporary purpose under a permit issued by the Chairman, within the time specified in such permit; or

• cause any other person to do any of the acts above enumerated, or if such person cannot be found,


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the owner of the building in question, shall be liable on summary conviction to a fine not exceeding three hundred rupees, and to a daily fine of twenty-five rupees for every day on which the offence is continued after conviction.

Orders for Demolition or Alteration and the Closing order issued by the Magistrate.

Magistrate can issue a mandatory order under section 13 (2) in any case in which any person is convicted under this section, the Magistrate may, on the application of the Chairman, make a mandatory order requiring such person, or the owner of the building, or both, within a time limited in the order, to demolish the building in question, or to alter it in such a way as to bring it into accordance with law, and in the event of such mandatory order not being complied with may authorize the Chairman to demolish, alter, or otherwise deal with the building in such a manner as to secure compliance with the order, and to recover the expenses thereby incurred in the same manner and by the same process as a rate.

Where an order is made under this Chapter for the demolition of an obstructive building or part of an obstructive building, and either no appeal is made against the order or an appeal is made and either fails or is abandoned, the authority making the order may acquire the land on which the obstructive building or the part in question is erected8.

Certificate of conformity.

The requirement of the COC has been emphasized under the section 15

1. No building constructed after the commencement of this Ordinance shall be occupied, except by a caretaker, until the Chairman has given a certificate that such building, as regards construction, drainage, and in all other respects, is in accordance with law.

2. Any person who has erected any building may apply in writing to the Chairman for such certificate, and thereupon the Chairman, after such inquiry as he shall consider necessary, shall, within thirty days of the receipt of the application, either grant the certificate or inform the applicant of his refusal to do so and of the grounds of his refusal.

3. Any person who occupies or allows to be occupied any building in contravention of this section shall be guilty of an offence, and shall be liable to a penalty not exceeding twenty-five rupees for each day during which the contravention continues.

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The above shows how powerful the ordinance is? When there is an erection within the locality, if the local authority follows the provisions laid herein properly, there will not be a question of unauthorized constructions. On the other hand, if the local authority gives approval by unlawful way in contravention to the ordinance, that decision also could be challenged. The remedial measures also available in the ordinance9, in case the local authority fails to perform their duties properly.

If the Minister, on representations being made to him in that behalf and after inquiry, is satisfied that the Chairman of any local authority has failed to exercise his power or to perform his duty under any of the provisions of Chapter I of Part II of this Ordinance the Minister may, by Order published in the Gazette, direct the Commissioner of Local Government or any other person to exercise such power or perform such duty in like manner as the Chairman. Such Order shall have the force of law.

Sri Lanka at present is faced with severe problems, that hinder the development of the country namely, environment and water pollution, garbage disposal issues, frequent flooding, earth slips, traffic jams, to name a few. All these are man-made problems that have been accumulated and escalated due to non-compliance of the ordinance at proper stage. These results in people being ignorant to follow the provisions and tend to erect building at their wish causing damages to the nature and environment. Any person who visits the hill country or sea side, is able to witness the ill effect of such haphazard construction activities.

Application in court cases

Where there is a land dispute with a party, in some instances, parties have used the above provisions as defences. Specially in rent and ejectment cases, where the leased premises are an unauthorised construction, plaintiff takes the position that since the premises is unauthorised one due to non-approval of the plan or non-availability of the COC, then that house or building liable to demolish and also illegal premise, there is no valid tenancy agreement. In the case of Malwaththage vs Dharmawardena10 Supreme Court has discussed the applicability of the ordinance where they considered the court of Appeal Judgement of Dharmawardena vs Walwattage11 case.

The plaintiff instituted action for a declaration of title to the premises in suit, for ejectment of the defendant, for an order on the defendant to demolish the ‘unauthorised shed’ occupied by her and for damages. The defendant claimed that she was the lawful tenant of the premises in suit having first come into occupation under the plaintiff ’s father. The plaintiff ’s position was that the premises were unauthorised


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under the provisions of the Housing and Town Improvement Ordinance and that accordingly the contract of tenancy was illegal being in breach of statutory provisions.

It was held by the court of appeal that One of the essential requisites of a contract of letting and hiring is that the thing should be capable of being let.

“A lease like any other contract must be legal; it must not be prohibited by statute. An illegal lease is invalid on account of its content. In the instant case there is an express statutory prohibition in the Housing and Town Improvement Ordinance against the occupation of a building in respect of which no certificate of conformity has been obtained. The premises in suit was such a building and the landlord could not have delivered to the tenant the use and occupation of the premises let as is required in a contract of letting and hiring. The contract of tenancy is tainted with statutory illegality and is ineffective to create rights. The provisions of the Rent Act do not apply to a contract of tenancy rendered illegal by statute. (The applicability of the maxim in pan delicto potior est conditio defendant is considered). accordingly allow the appeal, set aside the judgment of the District Court and direct that decree be entered for the ejectment of the defendant, her servants, agents and all those holding under her from the premises in suit”

Even in the appeal that decision was upheld and held that the contract was illegal as the building being an unauthorised one, was incapable of being let. An illegality cannot give rise to tenancy rights nor can the Rent Act be used to cover up and rectify an illegality under the Housing and Town improvement Ordinance. (3) There is an express statutory prohibition against occupying a building which is unauthorised and built in contravention of the provisions of the Housing and Town Improvement Ordinance (sections 56(1), 7(1) and 13(1)] and liable to be demolished.

In the recent case of W.G.N.S. Ranaweera vs S.K. Karunaratne and others12, it has discussed the burden of proving the facts. In this case plaintiff has sought a declaration of title to the subject matter of the action and ejectment of the defendant who claimed to be a tenant under the predecessor in title of the plaintiff. The basis on which the plaintiff sought the ejectment of the defendant is that the premises which is purported to be under a contract of tenancy, is an unauthorized construction. The learned district judge dismissed the plaintiff ’s action on the basis that the allegation of the premises in question being unauthorized had not been established.

Hon. Salam J. has mentioned that the above issue raised at the instance of the plaintiff clearly shows that the plaintiff has taken upon the burden of establishing the unauthorized nature of the building which the defendant claims to occupy as a tenant.

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“ I am in total agreement with the learned counsel for the defendant respondent that to succeed in an action of the present nature the plaintiff must establish that the building of the premises in suit had been constructed after the coming into operation of the Housing and Town Improvement Ordinance No 19 of 1915. The very reason that the said Ordinance had come into operation on 1 - 2 - 1915 renders any building constructed before that date without a plan, drawing and specification approved in writing by the Chairman of the local authority as being an authorized construction. Hence, the plaintiff has to establish that the premises in question has been constructed contrary to Section 15 of the Housing and Town Improvement Ordinance and the plaintiff has failed to establish this aspect of the matter and therefore in my opinion, the finding of the learned district judge as to the failure of the plaintiff to establish the main ingredient that constitutes the cause of action is faultless and calls for no intervention of this court by way of exercising the appellate jurisdiction.”

Applicability to Pradeshiya sabhas

The aforementioned case of Saranguhewage Garvin De Silva vs Lankapura Pradeshiya Sabha and others13, The Supreme Court restricted the appeal to the substantial question of law thus, Whether the provisions of the Housing and Town Improvement Ordinance (as amended) apply to the entirety of a Pradeshiya Sabha area, without exception. It was considered in the case that Section 3 of the Ordinance limits the application of the Ordinance to the administrative limits of any Municipal Council, Urban Council or Town Council or any other limits in which it shall be declared to be in force by resolution of Parliament. There is no reference to Pradeshiya Sabhas in the Act, since at the time of its enactment, Pradeshiya Sabhas did not exist. It is evident that the applicability of the Ordinance is limited to Municipal Councils, Urban Councils and Town Councils. It specifically excludes Village Councils, unless the Ordinance has been declared to be in force within the limits of a Village Council or part thereof, by resolution of Parliament.

Further after analysing the pradeshiya sabhas act and the rules of interpretations, the court was of the view that for the interpretation given to provision in this way would result in Village Councils being deemed to be Town Councils. The clear intention of the legislature to consider as distinct the separate regimes of law applicable to Town Councils and Village Councils is also evident in Section 225(2) of the Pradeshiya Sabha Act, wherein by-laws made by a Town Council continue in force only in respect of Town Councils deemed to be Pradeshiya Sabhas, and by-laws made by a Village Council continue in force only in respect of Village Councils deemed to be Pradeshiya Sabhas.


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Further, focusing on the judgement of the Court of Appeal, following passage has been quoted by the Supreme Court.

…. “By the above provision, the applicability of the said Act is limited to the Municipal Council, Urban Council and Town Council areas. In other words, it specifically excludes Village council areas. The said law has specifically provided that if this law has to be extended to other areas other than those are covered by Municipal Council, Urban Council or Town Council it has to be by a resolution of Parliament. Even though the Pradeshiya Sabhas are established under the Pradeshiya Sabhas Act, each Pradeshiya Sabha is assigned a name (Section 2(1)). If a Pradeshiya Sabha is constituted comprising of a Town Council area the Housing and Town Improvement Ordinance will be applicable to that Pradeshiya Sabha area. But if a Pradeshiya Sabha is constituted comprising of a Village Council area the Housing and Town Improvement Ordinance will not be applicable to that Pradeshiya Sabha area unless by resolution of Parliament it is declared that the said Act is in force in that Pradeshiya Sabha area.”

The supreme court was of the opinion that the Court of Appeal has properly analysed the applicable law and also held that Section 3 of the Ordinance makes it clear that the Ordinance does not apply within Village Councils, and there is no evidence that Parliament has passed a resolution declaring that the Housing and Town Improvement Ordinance is applicable within the area in which the building is situated. It is clear that Ordinance will apply for some pradeshiya Sabhas whilst some areas were not covered presently.

Brahakmanage Elmo St Ivor Perera and others vs Wattala pradeshiya sabha14 is a case of a situation like that local authority has given the approval but which cannot be legally approved. Appellants were seeking for a writ of mandamus.

The Complaint of the appellants is that the 3rd and 4th Respondent - Respondents who are said to be the owners of the said property (Lot 1 A on plan No. 4617, Deed of transfer No.1375 dated 2008-01-30 attested by B. Yogeswari Notary public) have unlawfully engaged in an unauthorized construction in the said premises violating the prevailing laws. Underlying reason as to why the Petitioners are particularly aggrieved is the fact that the said constructions have posed a danger to them as they are exposed to accidents when turning from Alwis Town road to 2nd Cross road. The risk of exposing the Appellants for danger has assumed a serious level as the said unauthorized construction is situated right at the said turning point. This Court observes that although the Respondents state that the relevant construction has been duly approved, they have failed to satisfy this Court that the relevant Pradeshiya Sabha has acted within their legal power in granting the impugned approval.

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It also further held that, the conduct of the 3rd and 4th Respondents during the proceedings both in the Provincial High Court as well as in this Court. It, is the view of this Court that they had taken all endeavours to drag this case indefinitely without attempting to take any meaningful step towards bringing their manifestly unauthorized construction to be in conformity with prevailing laws. In these circumstances this Court orders the 3rd and 4th Respondent to pay as costs Rs. 300,000 to the Appellants.

It seems that public rights were preserved by the court when the local authority acted contrary.

Conclusion

Sri Lanka is a multinational and multi-cultural country which gets a considerable income through tourism emphasizing its' environment and natural beauty. It is of utmost importance preserving the limited land resource available. Proper housing and town plan system seems to be a difficult endeavour at present, but the control of unhealthy and unpleasant constructions is a highly felt need of the day. For that purpose, it is a responsibility of all concerned to activate the provisions of the said ordinance.

Endnotes

1 1987 (1) SLR 572 http://www.academia.edu/11633529/Planning_Law_in_Sri_Lanka3 ibid4 A Case Study at Mattakkuliya And Mahawatte Areas Dissertation Submitted to the

University of Sri Jayewardenepura as a Partial Fulfillment for the Requirements of the Final Examination of the M.Sc. Real Estate Management and Valuation Degree by A A W N Adikari.

5 Ibid, Date of Submission : 25. 04.20116 SC Appeal 10/2009, Decided on 15.12.2014.7 Section 118 Section 679 Sec114(1)10 1991 (1) SriLR 14211 supra12 Hon. Salam, J ( CA 913/99 (f)-10.09.2013)13 supra14 Hon.P.P Surasena, J (P/CA)( CA(PHC) 27/11/18 -23.02.2018)

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Part - II

JUSTICE NIMAL GAMINI AMARATHUNGA MEMORIAL AWARD

WINNING ARTICLE

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PREVENTING OTHELLO’S ERROR IN COURT: A DISCOURSE ON DEMEANOUR

Chanima WijebandaraAttorney-at-Law (Sri Lanka Law College, 2003), LLB (The Open University of Sri Lanka, 2005),

LLM in Criminal Justice Administration (The Open University of Sri Lanka, 2016), Diploma in Forensic Medicine (University of Colombo, 2014), State Counsel,

Attorney General’s Department (2005 to 2007), Judicial Officer, (From November 2007 to date).

Abstract:

Othello’s error of judgment on demeanour took Desdemona’s life unjustly. Yet, demeanour stands a legitimate device for the judges to make judgments on credibility of witnesses in Courts of law. Despite the scepticism raised by legal scholars from as early as the 1940s and the continued debate on its reliability, gaining momentum by 1990s, the test of demeanour survives to date as a much relied upon principle in Law of Evidence in most jurisdictions including Sri Lanka. The hesitance of our Appellate Courts in overturning decisions of trial courts on the basis of the privilege trial judges have in observing the physical appearance, behaviour and mode of delivery of a witness indicates that the debate on demeanour has not yet reached the Sri Lankan legal arena. This paper presents a discourse on demeanour from a perspective of interrelated disciplines of law and literature with the intention of stirring a meaningful discussion among the judges, legal scholars, practitioners. While introducing the basic concept of demeanour in law of evidence in terms of legal provisions and judgments of Sri Lanka and other jurisdictions, it presents the latest findings of scientific, psychological and sociological research conducted on the subject. Examples are drawn from creative literature, a Shakespearean play, an ancient Greek tragedy, and a Gothic novel of the Romantic Era and a short poem from Mother Goose Collection to demonstrate how making judgments on demeanour can prove to be irrational resulting in miscarriages of justice. The paper concludes by suggesting that due to this proven unreliability the test of demeanour should be dispelled with altogether by adjudicators of courts of law.


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Key Words: Law and Literature, Law of Evidence, Real evidence, Witnesses, Test of

Credibility, Demeanour, Psychology.

IntroductionEvidence from both legal literature and creative literature1 would prove that

the inclination of judging people by their demeanour and deportment has been an inherent trait of mankind traceable to early times. Marking its emergence as an animalistic behaviour and a primitive practise it has entered in to the legal systems establishing itself as a significant principle in law of evidence. The triers of fact – the judges of trial courts are legally entitled to employ their observations on demeanour of a witness to make judgment on the truthfulness of their testimony. This principle bestows an almost godlike superiority on the trial judge. The Appellate courts have ever been hesitant to overturn a judgment of trial court on account that the trial judge alone has had the privilege of observing the demeanour of witnesses.

However, alongside the wide acceptance and usage of the principle of demeanour evidence an opposing school of thought has also been present from as early as the 1940s2. The reliability and accuracy of demeanour as a device of gauging the credibility of a witness in a court of law has been continually questioned by academics in the international legal arena3. The advancement of scientific research on human psychology and behaviour has acted in confirmation of this initial scepticism raised by these scholars. It has put courts in many jurisdictions on caution and the judges have begun to the deviate from applying this test in the recent times. Despite the existence of extensively researched repertoire of literature on this issue, the Appellate Courts of some countries including Sri Lanka still rely heavily on the trial judges’ insight in reading a person by outward appearance. Thus, this paper brings forth and analyses literature from legal to creative, from ancient to most recent, in an endeavour to stir an academic discourse on the suitability of demeanour as legal device to judge credibility of witness testimony among the legal professionals and the judiciary of our country.

Part I of the paper introduces the concept of demeanour in the Law of evidence. It brings together different definitions given to the word demeanour by several scholars. The legal provisions in Sri Lanka that enables the trial judges to observe, record and draw assumptions on the credibility of the testimony based on the demeanour of a witness. And judgments of the Appellate courts that indicate the level of importance given to the test of demeanour will also be highlighted. Part 2 explores the topic from an interdisciplinary perspective of law and literature.

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Four chosen pieces from creative literature, Euripides’ Hippolytus a Greek tragedy, Shakespeare’s play Othello, Mary Shelly’s Frankenstein or The modern Prometheus a Gothic novel of the Romantic Era and I do not like thee Doctor Fell a short poem from Mother Goose Collection, will be brought in to demonstrate how making judgments on demeanour can prove to be rash and irrational resulting in miscarriages of justice. Part 3 discusses views against Demeanour Evidence. In Part 4 the paper concludes that demeanour is an unreliable tool for assessing witness credibility. It is suggested that dispelling with the test of demeanour entirely would prove to be a progressive advancement in preventing miscarriage of justice.

Part 01

Demeanour from a Legal Perspective

Definition of Demeanour

In a literal sense the word “demeanour” itself is defined in different dictionaries as meaning “Outward behaviour or bearing4, a way of looking and behaving5, the way a person behaves towards others; conduct, bearing, appearance, or mien6. Demeanour of witnesses testifying in court is considered as a form of evidence that can be utilised by the trial judge in deciding the credibility of the witness. Thus, Demeanour is regarded as an ancillary of oral evidence. However, it is necessary to look in the technical legal definitions in order to understand the full scope of the concept.

Black’s Law Dictionary defines demeanour as follows:

“As respects a witness or other person, relates to physical appearance; outward bearing or behaviour. It embraces such facts as the tone of voice in which a witness’ statement is made, the hesitation or readiness with which his answers are given, the look of the witness, his carriage, his evidences of surprise, his gestures, his zeal, his bearing, his expression, his yawns, the use of his eyes, his furtive or meaning glances, or his shrugs, the pitch of his voice, his self-possession or embarrassment, his air of candor or seeming levity”7.

Murphy P. (1995)8 under the heading of “Demeanour of Witnesses” in his book “Murphy on Evidence” states that the court may consider not only what is said by a witness but also ‘the way in which it is said’ in deciding the credit of the witness and the weight to be given to his evidence. He states that this would include “the attitude of the witness to the court, his general demeanour, his apparent frankness, evasiveness or other reaction to questioning (particularly hostile interrogation during cross-examination) and his apparent power or lack power of recollection”.


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Stone’s (1991) Definition as cited by Chris Fife-Schaw, in The Influence of Witness Appearance and Demeanour on Witness Credibility: A Theoretical Framework (1995)9 is as follows.

“Demeanour excludes the content of evidence, and includes every visible or audible form of self expression manifested by a witness whether fixed or variable, voluntary of involuntary, simple or complex”

SS (Sri Lanka), R (On the Application Of) v The Secretary of State for the Home Department10 in the Court of Appeal (Civil Division), Royal courts of Justice, London describes the word as follows:

“the term “demeanour” is used as a legal shorthand to refer to the appearance and behaviour of a witness in giving oral evidence as opposed to the content of the evidence.

The above judgment quotes Lord Shaw in Clarke v Edinburgh & District Tramways Co Ltd.11 who describes the concept as,

“witnesses ... may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page.”

Classification of Demeanour Evidence

Modern writers classify (i) Material Objects, (ii) Appearance of Persons, and (iii) Demeanour of witnesses under the category of real evidence.12 Demeanour evidence, is described as “a species of real evidence consisting of behaviour of witness on the witness stand and which may be considered by trier of fact on issue of credibility” in the Black’s Law Dictionary13. E.R.S.R. Coomaraswamy in “The Law of Evidence”14 regards demeanour of witnesses as falling under the definition and scope of real evidence. In support of this classification Coomaraswamy refers to the notion of Nokes in “An Introduction to Evidence” (4th Ed. 1920) and “Real Evidence” (1949) that “real evidence consists of things which are examined by the court as means of proof ”. He cites Nokes’s suggestion that real evidence might be described as –(1) The physical appearance and demeanour of witnesses when in court, and of

other persons and animals present in the court or its precincts for examination by the tribunal;

(2) Material objects, other than those deemed to be documents, produced for such examination; and

(3) Any place, property or thing which is lawfully examined by the tribunal out of court.15

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Murphy P. (1995)16 also categorises demeanour as a form of real evidence in common use. He describes real evidence as the name usually given to quite diverse forms of evidence which have in common the characteristic that the tribunal of fact is invited to observe and draw conclusions from things, persons, places or circumstances, and so to act on its own perception for any necessary evidential purposes.

Sri Lankan Law on Demeanour

The legal provision enabling trial judges to record demeanour of a witness testifying in a criminal court is provided in the Code of Criminal Procedure Act No. 15 of 1979. Chapter XXII of the Code “On the Mode of taking and Recording Evidence in Inquiries and Trials” contains the following provision:

Section 273 (4) Every Judge recording the evidence of a witness may record such remarks as he thinks material respecting the demeanour of such witness while under examination.

The Civil Procedure Code contains the corresponding provision applicable in civil trials.

Section 173 The court may record such remarks as it thinks material respecting the demeanour of any witness while under examination.

Judgments of Superior courts of Sri Lanka reveal that heavy reliance is made on the trial judges’ capacity of reading physical countenance of witnesses. In The Attorney General, Vs. Sandanam Pitchi Mary Theresa, S.C. Appeal No. 79/2008 decided on 06.05.2010, the importance of demeanour observed by the trial judge was highlighted.

“Appellate judges have repeatedly stressed the importance of the trial judges’ observations of the demeanour of witnesses in deciding questions of fact (Vide, R. v. Dhlumayo (1948)2 SALR 677 (A); Merchand v. Butler’s Furniture Factory (1963)1 SALR 885).”

“The trial judge has a unique opportunity to observe evidence in its totality including the demeanour of the witness. Demeanour represents the trial judges’ opportunity to observe the witness and his deportment and it is traditionally relied on to give the judge’s findings of fact their rare degree of inviolability (Vide, Bingham, ‘The Judge as Juror’ 1985 p.67). Lord Loreburn in Kinloch v. Young (1911) SC (HL)1 observed that ‘...this house and other courts of appeal have always to remember that the judge of first instance has had the opportunity of watching the demeanour of witnesses – that he observes, as we cannot observe the


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drift and conduct of the case; and also that he has impressed upon him by hearing every word the scope and nature of the evidence in a way that is denied to any court of appeal. Even the most minute study by a court of appeal fails to produce the same vivid appreciation of what the witnesses say or what they omit to say’.”

Athaudage Premadasa Vs. Attorney-General C.A. No. 17/2017 decided on 04th April 2018, a murder case with no eye witnesses, based on the evidence of a witness who has last seen the deceased in the company of the accused and also a dying declaration made by the deceased to the same witness and another. Although, the appeal of the accused-appellant was allowed and the conviction entered against him and the sentence of death imposed was set aside considering several infirmities of the judgment of the learned High Court Judge, the following observation was made in relation to the opportunity available to a trial judge in observing the demeanour of witnesses:

“This Court is mindful that credibility of a witness is clearly a question of fact and an appellate Court would be reluctant to interfere with a finding of fact by a trial Court, in view of the priceless advantage it had in observing the demeanour and deportment of the witnesses.”

“In the instant appeal, the learned High Court Judge who delivered the judgment had no opportunity of observing the demeanour of the two lay witnesses. She has considered their testimonial trustworthiness upon perusal of the transcript and therefore her determination on credibility could not be equated to a finding of fact made on the credibility of a witness based on demeanour and deportment.”

S.C. Appeal 149/2013 decided on 28.01.2016 was in relation to an action filed for a declaration of title to the land described in the first schedule to the plaint and eviction of Defendant Respondent from a portion encroached from the eastern boundary of Plaintiff Appellant-Petitioner’s land and also for demolition of the building/wall standing thereon. Plaintiff-Appellant-Petitioners by this appeal sought to set aside the judgment of the Western Provincial High Court of Civil Appeals. The learned trial Judge has considered the evidence led at the trial and dismissed Plaintiff ’s case. It was stated that:

“This court being the Apex Court does not wish to interfere with several factual positions dealt with by the Original Court. Unless perverse orders are made by the lower courts it would not be in order for a Superior Court to interfere with factual matters.” …..Original Court has the advantage of hearing testimony of a witness and observe the demeanour

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of a witness. Unless substantive material is placed before court, to hold otherwise, I do not wish to interfere with the views expressed by the trial Judge. An Appellate Court will not interfere with findings of a trial Judge on question of fact.”

The judgment cited the following dictum in Fradd V. Brown & Co. Ltd., 20 NLR 282

“Where the controversy is about veracity of witnesses, immense importance attaches, not only to the demeanour of the witnesses, but also to the course of the trial, and the general impression left on the mind of the Judge of first instance, who saw and noted everything that took place in regard to what was said by one or other witness. It is rare that a decision of a Judge of first instance upon a point of fact purely is overruled by a Court of Appeal”.

Position in Other Jurisdictions

India:

Section 280 of the Code of Criminal Procedure 1973 (No 2 of 1974) of India provides:

When a presiding Judge or Magistrate has recorded the evidence of a witness, he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination.

There is a similar provision regarding recording of demeanour of witnesses in the Civil Procedure Code in Order XVIII Rule 12 which reads as follows:

The Court may record such remarks as it thinks material respecting the demeanour of any witness while under examination .

A perusal of Indian judgments would show that the Indian Courts have heavily relied on demeanour as a test of credibility.

Madras High Court, in the case of Senthil alias Senthilkumar vs State in its judgment dated 27 March, 2018 has discussed a number of factors that a trier of fact may rely on when assessing the credibility of a witness, including “The demeanour of the witness while giving testimony, including such matters as the manner of speech, pauses, physical demeanour and apparent confidence of the witness”. However, it is also expressed that “The consideration of these factors by a trier of fact will inevitably be influenced by the personality, education, intelligence, personal experiences and values of the trier of fact”.


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In the case of Amal Kumar Mahanta alias Amal Neer ... vs Smti Dolly Benerjee & Anr on 20 July, 2016 the Gauhati High Court pronounced the following observation:

“…such practice has been in vogue in our Country since long. Hindu Jurisprudence prescribed that Judge is required to note the change in colour and gesture of a witness at the time of recording his deposition. A reference to that effect is available in Verse No.26 of Chapter-8 of the Manusamhita. (The mind of a witness has to be read from the shape, gesture, laboured speech, variation in his eyes and face etc.).”

It is required for the observations on demeanour to be recorded by the trial judge as and when the oral evidence is recorded by the trial judge as and when the oral evidence is recorded. Thus, the fact that the judge has in fact given his mind to demeanour of a particular witness is not a mere assumption or an abstract idea applied invariably to each and every case by the appellate court judges. In the same case it was stated that:

“A Court while recording deposition of a witness is not to act like a post office. He is not only required to record the statements as are originally made by the witnesses, but he is also to record at the same time his facial changes and changes of body gesture because he being the Court of first instance has only the scope to encounter the witness. A First Appellate court or Second Appellate Court will have to rely upon the observations made by the learned Court of first instance only. This is why it is imperative for a Judge in original proceeding to record the demeanour of witness at the time of his deposition before the Court as has been done in this case.”

In this case, the Court of first instance has had the occasion to notice the facial changes of the witnesses at the time of deposition and had noted that demeanour of the petitioner being PW-1 was changing from time to time and he was changing his statements. It was the view of the Appellate court that “such change of demeanour of witness or facial changes are only indications of his mind.”

N.R. Bhat Vs. State by CBI/SPE, Bangalore17, decided on Apr-21-2016, is a case where the Demeanour of witnesses was discussed extensively. It lays down the manner in which the observations ought to be recorded and the stage when the assessment should be made.

“The observations regarding demeanour of a witness should be noted down during or at the closure of the examination of the witness. The Judge recording the observations of a demeanour should avoid making

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any observations about the credibility of the witness, at that stage. It is desirable to record the observations about the demeanour at the earliest stage. The observations regarding demeanour of the witness may be taken into consideration in assessing the evidence of a witness and cannot be regarded as conclusive.”

“ When recording the evidence of a witness, the judge should be quite attentive and keenly observe the manner in which the witness is giving evidence so that he is in a position to record his observations if any, about the demeanour of the witness. 3) The demeanour of a witness is his bearing or outward behaviour at the time of giving evidence and quite distinct from the impression made on the judge by his demeanour”.

The judgement refers to the book on Appreciation of Evidence in Criminal Cases by Justice U.L. Bhat, where it is stated that “the manner of giving evidence is also material, e.g., promptness and frankness in answering question, readiness to speak to all circumstances, hesitancy in giving answers, overzealousness in giving answers which may help one party, sudden improbable failure of recollection when dealing with significant and embarrassing questions on some tell-tale signs. Confusion, embarrassment, hesitancy, contradictory answers are not necessarily proof of dishonesty in a witness; they may be due to timidity, fright in court, natural effect of intimidating atmosphere and cross-examination. Trial Judge should not too readily adopt any impression as to demeanour of witness without testing it against the whole of his evidence”.

In Sirangi Shoba v. Sirangi Muralidhar18 decided on 19.10.2016, Andra Pradesh High Court held that Skype Technology and video conferencing would facilitate the observation of demeanour of a witness more accurately.

“…by preserving (and making available) matters wich are not apparent from written record such as demeanour, voice inflections, body language and the like, the judges can form a better view of the witness ad that would lead to better appreciation in evidence for a rational conclusion. The judge can even focus on a close-up of the witnesses face in order to better observe facial expressions. These can be re-run and replayed with ease.”

United States of America:

Federal Rule of Civil Procedure Rule 52(a) requires the reviewing court to “give due regard to the trial court’s opportunity to judge the witnesses’ credibility. Daphne O’Regan, (2017) in “Eying the Body: The Impact of Classical Rules for


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Demeanor Credibility, Bias, and the Need to Blind Legal Decision Makers”19, speaks of how the reliance on demeanour remains in the American Legal system despite errors of judgments occurring.

“The Greek word for voice (phone) focuses not on content, but on pitch and tone. Conviction and death of the innocent raise a terrible possibility: these two voices do not exist. Yet the promise of delivery and assessment of demeanor credibility–central to the structure of the Athenian and the American legal systems—is, in essence, that they do. Fundamental to the structure of trial and modern appeal is the presupposition that the body and voice of the speaker can, and must, function as the touchstone of truth.”

O’Regan’s paper brings forth several judgments to demonstrate the opinion of Federal Courts on demeanour.

FED. R. CIV. P. 52(a)(6). “[D]emeanor of an orally-testifying witness is ‘always assumed to be in evidence.’ It is ‘wordless language.’”

Broad. Music v. Havana Madrid Rest. Corp., 175 F.2d 77, 80 (2d Cir. 1949). “Standards of review favor trial courts’ observations of demeanor”.

The Seventh Circuit in United States v. Nobles : “The trial judge has the best opportunity to observe the verbal and nonverbal behavior of the witnesses focusing on the subject’s reactions and responses to the interrogatories, their facial expressions, attitudes, tone of voice, eye contact, posture, and body movements, as well as confused or nervous speech patterns in contrast with merely looking at the cold pages of an appellate record. We refuse to second-guess the trial judge on matters of credibility . . . .”

England:

SS (Sri Lanka), R (On the Application Of) v The Secretary of State for the Home Department20 in the Court of Appeal (Civil Division) Royal Court of Justice, London on Appeal from The Upper Tribunal (Immigration ‘And Asylum) Chamber, considered Demeanour of an Asylum Seeker. The main ground for the appeal had been the time lapse between the hearing and the judgment. When this main argument failed, the counsel for the appellant had taken up a fresh argument that the failure of the FTT judge to record his impression of whether the appellant appeared from his demeanour to be a credible witness may reflect the fact that, by the time he prepared the determination, the judge’s memory of how the appellant gave his oral evidence

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had dimmed with the passage of time. As demeanour was considered a vital matter to take into account in assessing the credibility of a witness, particularly when the issue of credibility is central to the determination as it often is in asylum cases, it was submitted that this is a reason to hold that the determination is unsafe and to remit the case for a rehearing. This premise of the appellant had led the Court of Appeal to make a comprehensive deliberation on the issue of Demeanour, explaining why the fact that the FTT judge did not base his credibility findings on his impression of the appellant’s demeanour is a merit and not a defect of the decision.

Canada:

In their book, under the heading “The Perils of Relying on Demeanour Evidence”21 citing the dictum of Justice O’ Halloran in the 1952 case of Faryana v Chorny “the law does not clothe the trial judge with a divine insight into the hearts and minds of witnesses”, they state that “yet case after case makes reference to the special position of trial judges as tries of fact”. The book quotes several judgments pronounced by the Appellate Courts and Supreme Court of Canada, to demonstrate the weight given to a trial judge’s observation of demeanour. Justice Carthy of the Court of Appeal for Ontario in R. v Francois (1993), 14

O.R. (3d) 191 t 202 (C.A.) :“I cannot see the complainant, hear that voice as it offers explanations, or observe the body language that we all use to separate truth from fiction in face-to-face encounters.

Madam Justice L’Heureux-Dube in Laurentide Motels v Beauport (City), (1989) 1 S.C.R. 705 at 799 :“An Appellate Court which has neither seen nor heard the witnesses and as such is unable to assess their movements, glances, hesitations, trembling, blushing, surprise or bravado, is not in a position to substitute the wheat from the chaff and looking into the hearts and minds of witnesses in an attempt to discover the truth.

Supreme Court of Canada in approved the trial judge’s following reasoning in disbelieving the accused and the defence witness R. v Jabiaranha, (2001)3 S.C.R. 430 at para 29:“The accused and the defence witness exhibited classic signs of discomfort when challenges on points and then would elaborate the details. Each was evasive at times or his eyes shifted around. Thus in certain point…each by the story and his demeanour, displayed signs of untruthfulness.”


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Part 2

Demeanour from a Literature perspective

Several examples can be drawn from creative literature to illustrate that observing demeanour to decide the truthfulness of a person has been an ancient practice in day to day life as well as in legal proceedings. These works would also bare wisdom on how demeanour can be most easily misread resulting in great misdemeanours. They also throw light on the fact that sometimes people can harbour irrational likes and dislikes based on mere face value and countenance. In this section, four such examples will be discussed

Othello’s Error of Judgment on Desdemona’s Demeanour

William Shakespeare’s tragic play Othello provides a classic example of how irrational a judgment on appearances can be.

Act 5, Scene 2

DESDEMONA

And have you mercy too! I never did Offend you in my life; never loved Cassio But with such general warranty of heaven As I might love: I never gave him token.

OTHELLO

By heaven, I saw my handkerchief in’s hand. O perjured woman! thou dost stone my heart, And makest me call what I intend to do A murder, which I thought a sacrifice: I saw the handkerchief.

DESDEMONA

He found it then; I never gave it him: send for him hither; Let him confess a truth.

OTHELLO

He hath confess’d.

DESDEMONA

What, my lord?

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OTHELLO

That he hath used thee.

DESDEMONA

How? unlawfully?

OTHELLO

Ay.

DESDEMONA

He will not say so.

OTHELLO

No, his mouth is stopp’d; Honest Iago hath ta’en order for’t.

DESDEMONA

O! my fear interprets: what, is he dead?

OTHELLO

Had all his hairs been lives, my great revenge Had stomach for them all.

DESDEMONA

Alas! he is betray’d and I undone.

OTHELLO

Out, strumpet! weep’st thou for him to my face?

Desdemona weeps on being told that Cassio is dead as she is now unable to prove her innocence and not. But Othello misreads her demeanour as a sign of infidelity and kills her. American psychologist Dr. Paul Ekman coined the phrase Othello’s error in his book Telling Lies (1985). He states that the Othello error occurs “when the lie catcher fails to consider that a truthful person who is under stress may appear to be lying” their non-verbal signals expressing their worry at the possibility of being disbelieved. Othello made the mistake of assuming that he understood the source of Desdemona’s anguish. He assumed that his wife’s sobs when confronted were a sign of her guilt; he didn’t understand that her grief was rooted not in guilt, but in her knowledge that there was no way to convince her husband of her innocence22. According to Dr. Ekman “Our emotional state, our attitudes, our expectations, what we want to believe, even what we don’t want to believe can all bias how we interpret an expression or more specifically what we think caused the emotion shown by the expression”23. The police and other law enforcement people Dr. Ekman, has tested


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generally start from the position that everyone is lying and consequently commit the

Othello error repeatedly.24

Hippolytus Hippolytus, an ancient Greek tragedy written in 428 B. C. E. by Euripides also demonstrates the danger of misreading demeanour. In this play, cursed by goddess of love Aphrodite, Phaedra wife of king Theseus falls in love with her step son Hippolytus. An ardent follower of Artemis the goddess of chaste, he does not reciprocate, and Phaedra commits suicide by hanging. Her suicidal note to Theseus falsely implicates Hippolytus for having raped her. Based on Hippolytus’ countenance Theseaus disbelieves the truthful verbal denial of Hippolytus. As a result, he curses Hippolytus to die.

THESEUS

A wizard or magician must the fellow be, to think he can first flout me, his father, then by coolness master my resolve.

HIPPOLYTUS

Father, thy part in this doth fill me with amaze; wert thou my son and I thy sire, by heaven! I would have slain, not let thee off with banishment, hadst thou presumed to violate my honour.

THESEUS

A just remark! yet shalt thou not die by the sentence thine own lips pronounce upon thyself; for death, that cometh in a moment, is an easy end for wretchedness. Nay, thou shalt be exiled from thy fatherland, and wandering to a foreign shore drag out a life of misery, for such are the wages of sin.

HIPPOLYTUS

Oh! what wilt thou do? Wilt thou banish me, without so much as waiting for Time’s evidence on my case?

THESEUS

Ay, beyond the sea, beyond the bounds of Atlas, if I could, so deeply do I hate thee.

HIPPOLYTUS

What! banish me untried, without even testing my oath, the pledge offer, or the voice of seers?

THESEUS

This letter here, though it bears no seers’ signs, arraigns thy pledges; as for birds that fly o’er our heads, a long farewell to them.

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HIPPOLYTUS aside

Great gods! why do I not unlock my lips, seeing that I am ruined by you, the objects of my reverence? No, I will not; I should nowise persuade those whom I ought to, and in vain should break the oath I swore.

THESEUS

Fie upon thee! that solemn air of thine is more than I can bear. Begone from thy native land forthwith!

Hippolytus’ unjust death and Theseus’ mistake—believing the truth to be a lie—derive from a fatal shortcoming in human speech: it bears no mark of truth or falsity. Instead, Theseus can only wish that “[a]ll men should have two voices”–one for unjust statements, the other for the truth—so “we should never be deceived25.”

Frankenstein or the Modern Prometheus

Mary Shelly’s Frankenstein or the Modern Prometheus (1818), is a gothic novel that deals extensively on prejudicial impressions formed by physical appearances. Descriptions of the countenance of each character and how they were interpreted are described in detail. The life infused creature created from body parts of the dead by Dr. Victor Frankenstein turns out to be an ugly monstrous creature. Frankenstein is horrified by the demeanour of his own creation and runs away in fear at first sight of life awakening in the creature.

“…I saw the dull yellow eye of the creature open; it breathed hard, and a convulsive motion agitated its limbs26.”

The Murder Trial against Justine on the allegation of murdering William, Victor’s youngest brother in Chapter VIII reflects upon how demeanour of witnesses as well as the accused could mislead and prejudice the judges in to convicting the innocent. It also shows how people’s demeanour could change according to how they are perceived by others.

“The appearance of Justine was calm. She was dressed in mourning; and her countenance, always engaging, was rendered, by the solemnity of her feelings, exquisitely beautiful. Yet she appeared confident in innocence, and did not tremble, although gazed on and execrated by thousands; for all the kindness which her beauty might otherwise have excited, was obliterated in the minds of the spectators by the imagination of the enormity she was supposed to have committed. She was tranquil, yet her tranquillity was evidently constrained; and as her confusion had before been adduced as a proof of her guilt, she worked up her mind to an appearance of courage27.”


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One main items of evidence against Justine was her demeanour misread by witnesses and the jury. “On being charged with the fact, the poor girl confirmed the suspicion in a great measure by her extreme confusion of manner28”.

“She had been out the whole of the night on which the murder had been committed, and towards morning had been perceived by a market-woman not far from the spot where the body of the murdered child had been afterwards found. The woman asked her what she did there; but she looked very strangely, and only returned a confused and unintelligible answer. She returned to the house about eight o’clock; and, when one inquired where she had passed the night, she replied that she had been looking for the child, and demanded earnestly if anything had been heard concerning him. When shown the body, she fell into violent hysterics, and kept her bed for several days29”.

“Justine was called on for her defence. As the trial had proceeded, her countenance had altered. Surprise, horror, and misery were strongly expressed. Sometimes she struggled with her tears; but, when she was desired to plead, she collected her powers, and spoke, in an audible, although variable voice30”.

Further, the judgment of the magistrate with regard to the guilt of the suspect Dr. Frankenstein on the allegation of murder of Clerval, Victor’s closest friend, is to a large extent influenced and swayed by observance of his demeanour at the inquest proceeding. The following extracts Victor describes how his countenance was scrutinised by the judge Mr. Kervin.

“………. when the mark of the fingers was mentioned, I remembered the murder of my brother, and felt myself extremely agitated; my limbs trembled, and a mist came over my eyes, which obliged me to lean on a chair for support. The magistrate observed me with a keen eye, and of course drew an unfavourable augury from my manner.”31

“Mr. Kirwin on hearing this evidence, desired that I should be taken into the room where the body lay for interment, that it might be observed what effect the sight of it would produce upon me. This idea was probably suggested by the extreme agitation I had exhibited when the mode of the murder had been described. I was accordingly conducted, by the magistrate and several other persons, to the inn.”32

“Mr. Kirwin regarded me with a troubled countenance. He could not help regarding my exclamation as a presumption of my guilt, ……33.”

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Irrational Dislike for Doctor Fell

I do not like thee, Doctor Fell,

The reason why – I cannot tell;

But this I know, and know full well,

I do not like thee, Doctor Fell

This short poem published in the Mother Goose Collection of Nursery Rhymes reflects on the non-availability of a presentable reason for an instinctive and insuperable dislike34. William Hazlitt in his essay on “Disagreeable People”35 observes that the mind is a finer instrument than we sometimes suppose it, and is not only swayed by overt acts and tangible proofs, but has an instinctive feeling of the air of truth. Hazlitt further states in another of his essays that we do not like certain people though we have known them long, and have no fault to find with them, so we say perhaps their appearance is so much against them36.

Part 3

Views against Demeanour Evidence

The tendency to distrust demeanour as a reliable test has been present from early times. Britt S. H. (1940) in “Rules of Evidence – an Empirical Study in Psychology and Law”37 has conducted a research begun in 1935on the rules concerning the impeachment of witnesses. His study has shown that psychologists have little faith on the Rule that “The demeanour of the witness while testifying may furnish evidence as to his testimonial quality. Bingham in 1985 has written in “Current Legal Problems”38 that the current tendency is on the whole to distrust the demeanour of a witness as a reliable pointer to honesty. He states that when a witness leaves a judge with a profound conviction that he is, or is not, telling the truth, this may ultimately be based on impression, and not on anything that he has said or failed to say and therefore the impression cannot be explained or justifies in rational terms”39. Even Nokes has stated that “A forthright witness may be preferred to a nervous and hesitating witness, but due allowances must be made for the fact that there are plausible liars and honest men, who may be nervous in the box.”40

In book, “Legal Practice and Cultural Diversity”41 the validity of the test of demeanour has been considered in the context of a debate whether the Muslim women should be allowed to wear the niqab in the Canadian courts when testifying. A main argument against the niqab had been that the trial judge is deprived of the right to observe demeanour of the witness. It brings forth facts to show that there is growing case law and academic research that points to the unreliability of


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demeanour evidence and states that judges must seriously question reliance on this antiquated method of assessing behaviour. It concludes that “given the unreliability of depending solely on demeanour evidence, women whose faces are covered by the niqab should not then pose an insurmountable problem to the dispensation of justice in a courtroom setting”.

Paul Ekman, described by Oliver Sacks in Would you lie to me?42 States that “There is no tell-tale, sure-fire, absolutely reliable sign of lying. Nothing in demeanour or physiology which is always present when someone lies and always absent when someone is truthful has yet been discovered”. “Many people believe they can identify lies from demeanour: what is said, how it is said, gaze direction, posture, gesture and/or facial expression. There are many false clues in circulation, based upon conjecture, anecdote or imagination, and endlessly repeated in the media. But tests carried out by my colleagues and myself showed it is not valid, though some people still swear by it”.

Mark Williams Pontin (2009), in Lie Detection43 states “Yes, our faces reveal what emotions we’re experiencing, if you can read the signs. What our faces don’t necessarily reveal is what triggered that emotion.” If you don’t know that, interpretation can go far astray”. Pontin quotes Ekmans’ warning , “Rule out all the possible explanations before you conclude that what you’re seeing is a sign of lying about a criminal act,” “Because very often, it’s not.”

Part 4

Discussion

In proceedings of courts of first instance in Sri Lanka, it can be often observed that the demeanor recorded by the trial judges would comprise of remarks such as “the witness is crying while testifying, witness trembles in the witness box, the witness is emotional, witness testifies in an arrogant manner, witness keeps his eyes down while answering, witness evades the question, witness takes a long time to think44. However, these are very general observations which cannot be safely utilised to interpret accurately the mind of a particular witness. On the other hand, even though the section 273 (4) of the Code of Criminal Procedure states that “the judge may record such remarks” respecting the demeanour of the witness often the demeanour remains an abstract concept in the mind of the trial judge. Although the record would not bare in black and white any such remarks, the trial judges would sometimes make an umbrella statement of a particular witness at the judgment stage to the effect that he or she decides from “the way the witness gave evidence”45, meaning demeanour and deportment, in court that the witness’s testimony is either truthful or untruthful. If the judgment refers to the demeanour of a particular witness

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whereas the record does not, it would raise a doubt whether the judge had indeed observed such countenance and whether he actually remembered accurately what was observed until the judgment day. This issue would be of specially concern where there is a significant time laps after hearing of the evidence of the particular witness and writing of the judgment.

Many of Sri Lankan appellate court judgments also do not make any reference to a specific observation on demeanour entered in to the record by the trial judge and how it was interpreted by the trial judge. Instead, the Appellate court would make a general statement drown on an assumption that all trial judges have observed the demeanour of the witnesses at the trial, and therefore the judgment should not be interfered with. But what exactly the trial judge has observed in each individual case remains in the dark. What conclusions the trial judge made regarding the credibility of a particular witness based on this test would also remain in the dark. This would compromise the transparency of the judgment process which should be reflected in a judgment as a legal requirement. It would render the test of demeanour an abstract concept.

Preconceived notions and generalisation of the relationship between peoples’ demeanour and their interpretation would be a dangerous practise. Unarguable human beings are entirely different from each other in terms of their social, cultural and religious backgrounds, upbringing, level of education, exposure and experience, age, personality and temperament to name a few. And also, with the availability and easy access to print and web based literature on scientific and sociological studies on body language would affect the way people behave; their natural demeanour could have been replaced with acquired demeanour, they could have the potential of adopting premeditated behaviour to camouflage their true emotions. Further, the behaviour and conduct of those who have undergone professional training on subjects such as fine arts including drama, voice control and personality development would be refined and fine-tuned making them capable of presenting their facts in a convincing manner.

Conclusion

Having analysed a number scholarly studies, academic writings and judgments both local and foreign on the issue of demeanour spanning from 1940 to 2018, it is can be seen that most of the modern writers point towards the supposition that demeanour can be deceptive, hence dangerous as a legal tool for the assessment of credibility of a witnesses testimony in a court of law. This indicates that the importance of the role of demeanour as a devise for deciding credibility of witness testimony in


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courts is diminishing with the emergence of new scientific, psychological knowledge and development of new legal perceptions.

Hippolytus, Desdamona and Justine who’s undoing were due to no fault of theirs’ but errors of judgment made by those who erroneous believed that they knew the art of reading demeanour, intensified by misleading false information furnished by surreptitious people are the best examples that can be drawn from creative literature to prove the risks and dangers of making judgments based on physical appearance and behaviour. In order to prevent such tragedies and miscarriages of justice in courts as well as in day to day situations in real life it is necessary to identify the unreliability of the concept. A life taken or belittled on an error of judgment cannot be resurrected ever. Thus, the legal professionals, scholars and judges should be mindful and cautious when making judgment on people based on a debatable legal principle as such. If still unconvinced of its unreliability, it is best that the precautionary principle46 be adopted to prevent potential harm from this under-explored complex legal principle until the much needed comprehensive empirical and secondary evidence based studies are conducted specifically in relation to the Sri Lankan context.

Bibliography:

1. O’Regan D, “Eying the Body: The Impact of Classical Rules for Demeanor Credibility, Bias, and the Need to Blind Legal Decision Makers”, 37 Pace Law. Review. 379 () Available at: http://digitalcommons.pace.edu/plr/vol37/iss2/1

2. Demeanour evidence as the backbone of the adversarial process http://www.lawsociety.org.nz/__data/assets/pdf_file/0006/76812/LawTalk-837-

WEB.pdf Demeanor Credibility: https://scholarship.law.edu/cgi/viewcontent.cgi?article=1

388&context=lawreview 3. The Trial process; Demeanor Evidence and Admissibility: https://learning.uonbi.ac.ke/.../The_Trial_Process,_demeanor_evidence_and_

admissibility 4. The Role of Demeanor Evidence in Determining Credibility of Witnesses in

Fact Finding: The Views of ALJs Gregory L. Ogden: h t t p s : / / d i g i t a l c o m m o n s . p e p p e r d i n e . e d u / c g i / v i e w c o n t e n t .

cgi?article=1178&context=naalj5. Olin Guy Wellborn III, Demeanor, 76CornellL.Rev. 1075 (1991) Available at:

http://scholarship.law.cornell.edu/clr/vol76/iss5/3 6. SS (Sri Lanka), R (On the Application Of) v The Secretary of State for the Home

Department [2018] EWCA Civ 1391 (15 June 2018)

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BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Available at http://www.bailii.org/ew/cases/EWCA/Civ/2018/1391.html Accessed on 18.10.2018

7. Attorney General, Vs. Sandanam Pitchi Mary Theresa, S.C. Appeal No. 79/2008 decided on 06.05.2010

8. Coomaraswamy E.R.S.R., The Law of Evidence, Lake House Investments LTD, Sri Lanka.

9. Brit (1940), Rules of evidence – An Empirical Study in Psychology and Law, Vol. 25 Cornell Law Review, page 556 available at http://scholarship.law.cornell.edu/clr/vol25/iss4/4 ,

10. Bingham (1985) “Current Legal Problems”, Olin Guy Wellborn III,Demeanor, 76CornellL.Rev. 1075 (1991) Available at: http://scholarship.law.cornell.edu/clr/vol76/iss5/3

11. Murphy P. (1995), “Murphy on Evidence”, 5th Edition (Second Indian reprint 2000), Universal Law Publishing Co. Pvt. Ltd. Delhi,

12. Grillo R., Ballard R., Ferrari A., Hoekema A. J., Maussen M., Shah P. Available at bahkt_-_objection_your_honour.pdf, Page 118

13. Phillips B. Body Language: Why You Should Avoid Othello’s Error (2014) available at http://www.mrmediatraining.com/2014/04/03/body-language-why-you-should-avoid-othellos-error//

14. Paul Ekman, described by Oliver Sacks Would you lie to me? https://www.theguardian.com/uk/2003/apr/27/ukcrime9

15. Shelly M, Frankenstein,(2003) Revised edition, Penguin Books, England,16. Jacox F. About not loving Doctor fell; And the Reason Why, The New Monthly

Magazine. Vol.137 By william harrison ainsworth

Endnotes

1 Shakespeare’s Othello, Euripides’ Hippolytus, Mary Shelly’s Frankenstein

2 Brit (1940), Rules of evidence – An Empirical Study in Psychology and Law, Vol. 25 Cornell Law Review, page 556 available at http://scholarship.law.cornell.edu/clr/vol25/iss4/4 , last accessed on 17.11.2018, Bingham (1985) “Current Legal Problems”, Olin Guy Wellborn III,Demeanor, 76CornellL.Rev. 1075 (1991) Available at: http://scholarship.law.cornell.edu/clr/vol76/iss5/3

3 ibid

4 https://en.oxforddictionaries.com/definition/demeanour

5 https://dictionary.cambridge.org/dictionary/english/demeanour

6 https://www.collinsdictionary.com/dictionary/english/demeanour


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7 http://blacks_law.enacademic.com/25679/demeanor , accessed on 05.11.2018

8 Murphy P. (1995), “Murphy on Evidence”, 5th Edition (Second Indian reprint 2000), Universal Law Publishing Co. Pvt. Ltd. Delhi, page 532

9 Available at http://journals.sagepub.com/doi/abs/10.1177/002580249503500204?journalCode=msla Accessed on 19.10.2018

10 [2018] EWCA Civ 1391 (15 June 2018) Royal Courts of Justice Strand, London, WC2A 2LL 15/06/2018 Case No: C5/2015/4127

11 1919 SC (HL) 35, 36,

12 Volume II (Book I), Lake House Investment LTD, page 16

13 blacks_law.enacademic.com/25679/demeanor accessed on 05.11.2018



16 Murphy P. (1995), “Murphy on Evidence”, 5th Edition (Second Indian reprint 2000), Universal Law Publishing Co. Pvt. Ltd. Delhi, page 531

17 Available at www.legalcrystal.com/1182914 last accessed on 15.10.2018

18 Available at https://www.casemine.com/judgement in/58ae762e4a9326593c4a1698

19 37 Pace Law. Review 379 Available at: http://digitalcommons.pace.edu/plr/vol37/iss2/1

20 [2018] EWCA Civ 1391 (15 June 2018) Royal Courts of Justice Strand, London, WC2A 2LL 15/06/2018 Case No: C5/2015/4127

21 Grillo R., Ballard R., Ferrari A., Hoekema A. J., Maussen M., Shah P. Available at bahkt_-_objection_your_honour.pdf, Page 118, Accessed on 19.10.2018

22 Phillips B. Body Language: Why You Should Avoid Othello’s Error (2014) available at http://www.mrmediatraining.com/2014/04/03/body-language-why-you-should-avoid-othellos-error/

23 ibid

24 Paul Ekman, described by Oliver Sacks Would you lie to me? https://www.theguardian.com/uk/2003/apr/27/ukcrime9

25 O’Regan D, “Eying the Body: The Impact of Classical Rules for Demeanor Credibility, Bias, and the Need to Blind Legal Decision Makers”, 37 Pace Law. Review. 379 () Available at: http://digitalcommons.pace.edu/plr/vol37/iss2/1

26 Shelly M, Frankenstein,(2003) Revised edition, Penguin Books, England, Page 59

27 Ibid Page 83

28 Ibid page 80

29 Ibid page 24

30 ibid

31 Ibid page 180

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32 Ibid page 180

33 Ibid page 184

34 Jacox F. About not loving Doctor fell; And the Reason Why, The New Monthly Magazine. Vol.137 By william harrison ainsworth

35 Ibid

36 ibid

37 Britt S. H. (1940) Rules of Evidence- An Empirical Study in Psychology and Law, 25CornellL.Rev. 556 (1940) Available at: http://scholarship.law.cornell.edu/clr/vol25/iss4/4

38 Coomaraswamy E.R.S.R., The Law of Evidence, Volume II (Book 2), Lake House Investments LTD, Sri Lanka, page 1062

39 Ibid page 1063


41 https://books.google.lk/books/isbn0754675475

42 Paul Ekman, described by Oliver Sacks in Would you lie to me? https://www.theguardian.com/uk/2003/apr/27/ukcrime9

43 https://www.technologyreview.com/s/413133/lie-detection/

44 English Translation of the Sinhala phrases: zzidlaIslre y`vñka idlaIs fohs" fjõ,ñka

idlaIs fohs" ye`.=ïnrj idlaIs fohs" wdfõ.YS,Sj idlaIs fohs" ìug fk;a fhdudf.k

ms<s;=re fohs" m%Yakh u.yßñka idlaIs fohs" È.= fõ,djla l,amkd lrñka isg idlaIs

fohs'ZZ

45 English Translation of the Sinhala phrase: zzwêlrKfha § idlaIslre idlaIs ÿka ú,dYh

wkqjZZ

46 Precautionary principle is defined as “When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically.”


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ARE YOU AN ADMINISTRATOR ?

D.M.D.C.Bandara Senior Assistant Secretary

Judicial Service CommissionLLM(Colombo), MA(Economics/Kelaniya), Diploma in Public Administration(SLIDA)

Former Assistant Secretary (SLAS III) to the Public Service Commission Former Captain/Legal Officer to the Sri Lanka Army

Abstract

High Court Judges, District Judges and Magistrates are considered as Heads of the respective departments by virtue of their appointments. Therefore, they have to perform the role as an administrator. The objective of this article is to facilitate them in the process of approaching the complexity of the problems occurred on daily basis when handling official matters by identifying their root cause. Furthermore, the reading of this article would give an opportunity to see through ones scope as an administrator, rethink and refresh the role of it by rectifying errors so that the institutional administration follows the right direction to provide more efficient service to the public.

Key words :Administration – The activities that are done in order to plan, organize and run an

institution.1

Discretion – The freedom or power to decide what should be done in a particular situation.2

Nepotism – Giving unfair advantages to your own group if you are in position with power and authority.3

On surface value, the difference between controlling and administration may appear as similar but when considering their respective meanings, it can be concluded that those two words refer to two different perspectives. Basically, controlling can be done at one’s own discretion. On the contrary, administration is a system governed by laws, rules, regulations, policies and principles of an institution. Therefore, one

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can argue that there is no discretion within the course of administration, but the administrator recurrently applies his discretion with good faith. In other words, no hidden aims and objectives affect the discretion of a good administrator, whereas, the controller’s discretion is always influenced by nepotism and corruption. Since administration is based on a strong value system, it cannot be malfunctioned by such deviating factors. This brings absolute equal treatment for everyone.

With a sound understanding of the importance of proper administration a Head of an institution can establish good governance within his office premises. The foundation of good governance is responsibility. The person who holds responsibility over his/her duty is accountable for his/her duty. If he/she is a responsible and accountable person his/her duties become transparent and this transparency enables him/her to respond confidently. Such an officer can have a higher integrity. If the Head of an institution is engaged in nepotism, the type of integrity expected from him/her is obviously questionable. When the said administrator is bias, the basic principles of good governance fall apart. In order to produce a group of upright and honest subordinate officers within the institution it is mandatory that the Head should be free of the influence of nepotism.

A good administrator has a capacity to take accurate and timely decisions. The conventional bureaucratic thinking pattern hinders the creativity of many administrators, as it limits the person in understanding the current social dynamics and public conscience. Being an art at one time and a science at another, administration has twofold structures of decision making; line structure and parallel structure. However, an efficient administrator can transcend the boundaries whenever possible. According to the writer, the decision making should not be done only on prima facie basis. At the same time, it should not be limited to the pre-experiences. Consequently, a good administrator follows a holistic approach considering the substantive facts. It eradicates the root cause of problems so that the same issue never recurs. Such a decision making mechanism would not please everybody. But avoiding the factors like personnel bias is essential for the development of any institution. When the decision is taken for the benefit of the majority there might be several opponents whom good administrator should skip. If he/she goes to satisfy all, it will affect the stability of the institution and also he/she is rejected as a timid and inefficient administrator by the majority. Thus, one should creatively adhere to the apparatus of administration, then ordinary administrative rules and regulations in order to gain mastery of decision making.

Furthermore, nepotism disturbs the process of making straight forward decisions. When an administrator is subjected to the conflict of interest, the decision


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undergoes a bias towards one party. For instance, if somebody has a close relationship with one of the interviewees it might affect the final decision of the interview board. A historical evidence can be found in ‘Mihintale’ rock carvings to prove the fact. It portrays that ‘one who is in alliance with monastery priests should not be a member of management board of monastery’,4 It indicates that our ancestors too had this concept in their mind.

Ignoring an offence committed by a supportive subordinate staff member or not taking proper disciplinary action against him/her would bring a disastrous effect to the trustworthiness of the authorities. They should not attempt to convince the others that it is a minor offence due to unawareness. If the staff has no faith in the authority it disturbs the stead fast administration in the institution. Apart from that, a good administrator must be free of corruption. If he/she obtains facilities in an unlawful and illegal manner, he is unable to take stern actions against those who help him/her in his/her disgraceful act. In such a circumstance, the degradation of the administration of that institution is unavoidable. Some other officers would take the opportunity to commit the same offence in different ways. This motivates misconduct in other officers and altogether disrupts the internal discipline of the institution. The final result is the collapse of the entire institutional administration.

In conclusion, an administrator who gives life to a very important role should be a person with an exemplary behavior. As this article suggests the administrator should firstly understand the difference between an administrator and a controller. It offers him/her a helping hand to keep his discretion unspoiled by nepotism and corruption. When he/she is able to do so he/she is affordable to take correct decisions and maintain good governance in his institution which will lend his/her subordinates to the path of success.

Endnotes

1 Oxford Advanced Learners’ Dictionary, © 2018 Oxford University Press2 Oxford Advanced Learners’ Dictionary, © 2018 Oxford University Press3 Oxford Advanced Learners’ Dictionary, © 2018 Oxford University Press4 The article, ‘SIYALU PAU WIDAYAKE JANADIPATHI KRAMAYEDA?’ written by

Dr. Lalithasiri Gunaruwan, Published in Lankadeepa News paper in April.2018

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GLOBALIZING HUMAN RIGHTS: AN ASIAN PERSPECTIVE

Anandhi KanagaratnamMagistrate/Senior Assistant Secretary Judicial Service Commission /Secretary to Hon. Chief Justice

Attorney-at-Law, LLB (OUSL), LLM (Colombo), Post Attorney’s Diploma in International Trade Law (Sri Lanka Law College), Post Graduate Diploma in Airline Studies (IATA Singapore)

Abstract

Today, the greatest challenge to the assertion about the universality of “Human Rights” is coming from Asian countries. The reasons behind this assertiveness are manifold. “Human Rights”, is said to simply reflect western thought, not embracing values of Asian cultures. It is also said that international action on “Human Rights” reflects a deep political division among governments. Further, it is widely believed that it is the United States (USA) and NATO countries that determines the agenda of the United Nations (UN) and “Human Rights” discourse thereby asserting political dominance over the rest of the world. It is observed that the USA while refraining from ratifying some fundamental “Human Rights” treaties, has continued to promote a very ideological view of “Human Rights”. USA is the only country in the world, apart from Somalia, that has not ratified the Convention on the Rights of the Child (CRC) and one of the few countries that has not ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEADAW). It has also refused to ratify the International Covenant on Economic Social Cultural Rights (ICESCR). Further, according to Human Rights Watch there are currently more than 20,000 prisoners in the USA, housed in special super-maximum-security units who live in inhuman conditions being subject to torture and all kinds of humiliation. Further, the recent decision by the US government to separate migrant children from their parents and intern them reflects the serious “Human Rights” problems within the country. However, for the political establishment as well as public opinion, “Human Rights” violations are supposed to happen outside the USA.

As the underlying idea of “Human Rights” rests on the assumption that they are universal, the main thrust of this article is to examine the concept of “Human Rights”,


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from the perspective of ancient philosophy and world religions which had their origin in Asia and the Middle East. Article also analyses the way in which “Human Rights” doctrine and consciousness became globalized following World War II and the adaptation of Universal Declaration of Human Rights (UDHR). Thereafter, the extent to which globalization of “Human Rights standard had overlooked the complexity of local conditions and constraints in the developing or under developed Asian countries and the neo-liberal reform agendas of international financial institutions and the mechanisms by which their macroeconomic decisions are forced on Asian countries are dealt with in the article. This is followed by an analysis of how in modern times fundamental rights are recognized and protected by incorporating Bills of Rights in written Constitutions around the world and the article concludes that “Human Rights” are neither Eastern nor Western, but universal. However, global standards must be enforced having considered the diversity and complexity in non-western States.

Introduction

The belief that everyone, by virtue of his or her humanity, is entitled to certain “Human Rights” though fairly new has its roots in earlier traditions and documents of most of the world’s major cultures. It has been a “part of the religious and cultural heritage of man”. “Human Rights” which is in the forefront of political, philosophical, social and legal discourse today, is difficult to define. However, it generally refers to those rights which are inherent in all human beings, whatever the nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status.1 These rights are all interrelated, interdependent and indivisible and are based on shared values like dignity, fairness, equality, respect and independence.2

The expression “Human Rights” propelled onto the global stage and conscience following the World War II and with the founding of the UN in 1945, is now a cultural phenomenon of all history. The worst carnage of innocent human beings in our recorded history was seen during world war II where hundreds of thousands of innocent human beings were done to death by resorting to hitherto unknown methods of mass killing. Subsequent events reveal that during the agonizing days of the war, the intelligentsia of Europe and America perceived that the promotion and protection of “Human Rights” was the surest safeguard against the resurgence of tyranny. Thus, contemporary “Human Rights”, as defined in UDHR, arose from World War II as resistance to totalitarian regimes of fascist or communist inspiration. The concept of “Human Rights” first emerged within the UN as a set of guiding principles and norms defining the nature of political legitimacy and social welfare.

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It was thereafter proclaimed by the General Assembly as the ‘‘common standard of achievement for all peoples and all nations.’’ Never in historical experience has there been a universal acceptance of minimum norms in relation to individual rights comparable to UDHR, and never in history has the awareness of such a set of norms permeated so widely through the global community.3

Intercultural Evolution of Human Rights

The gradual evolution of the recognition and protection of “Human Rights” are the product of political history of countries and thus it is important that the background to “Human Rights” be known to provide the setting against which “Human Rights” can be properly understood. The great historical and constitutional struggles, the currents of philosophical thought, the guiding light of religious teachings, the principles of the rule of law, and social, cultural, political and economic forces, are the springs that have fed the stream of “Human Rights”.4

Throughout much of history, people acquired rights and responsibilities through their membership in a group – a family, indigenous nation, religion, class, community, or state.5 Most societies have had traditions similar to the “golden rule” of “Do unto others as you would have them do unto you.” The Hindu Vedas, the Babylonian Code of Hammurabi, the Bible and the Quran are four of the oldest written sources which address questions of people’s duties, rights, and responsibilities.

Every human being is vested with certain duties and upon their due performance depends the well-being of himself and the society. The notion of rights had no independent existence but rested upon a bed-rock of duty. Thus, the concept of duty to God from whom rights are derived and the notions of human dignity which have in many ways contributed to the development of “Human Rights” have their place in the teachings of Hinduism, Buddhism, Christianity and Islam.6

The concept of Dharma the central doctrine of Hindu thought, is intended to bring about the gradual development of man to enable him to reach the goal of human existence.7 It is the way in which the cosmos, the whole universe, or the balance in the cosmos is maintained.8 Although the duty towards others is the fundamental underpinning of Hindu thought, examples within Hinduism also exist regarding “rights”. The word dharma can also be translated to mean ‘rights’ when used in the context of a crisis. For example, according to Hindu religious text Mahabharata, the people have a right to ‘gird themselves up and kill a cruel King, who does not protect his subjects, who extracts taxes and simply robs them of their wealth and there is a right to rebel against a King if he does not fulfil his duty to protect the people.9


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Buddhism treated the welfare of all human beings as a state duty and to this end Buddhist rulers, notably Emperor Asoka, appointed throughout the length and breadth of his Kingdom a vast number of officials, whom today we could refer to as human rights commissioners, to promote the welfare and happiness of servants and masters, of Brahmans and the rich, of the poor and of the aged.10 They were engaged in the prevention of wrongful imprisonment and in considering cases where hardship was caused through a person being stricken with calamity or through age or infirmity. 11

Similarly, in Christianity there is a comprehensive theory for human duty than “Human Rights”. The ‘Ten Commandments’, prescribe a series of duties that each person owes to others. This suggests that although the idea of rights has been much of the focus, it is the concept of duty which is expressly stated and encouraged in the religious text. In this context it seems rights are simply the reciprocals of these divinely ordained moral duties.12

According to Islam “Human Rights” are rights granted by God and not by King or Ruler or any legislative assembly and such rights cannot be withdrawn or conferred.13 Islam lays down some universal fundamental rights for humanity as a whole which are to be observed and respected under all circumstances within a state or outside or whether at peace or at war.14 Certain rules of conduct were owed by all humans to God, and once these were fulfilled there was an automatic fulfillment of man’s duties towards his fellow man.15 Thus, according to Islamic teachings certain rights are inalienable and the rulers therefore hold their power upon trust and only so long as they honour that trust. These principles were central to Islamic political theory.16

It is also recoded that in 539 B.C., when the armies of Cyrus the Great, the first King of ancient Persia, conquered the city of Babylon, that he freed the slaves, declared that all people had the right to choose their own religion, and established racial equality.17 From Babylon, the idea of “Human Rights” spread quickly to India, Greece and eventually Rome.18

Precursors to Present Day Human Rights Documents

The Magna Carta of England and Bills of Rights of the US are products of the society of the time. King John of England was prevailed upon to sign the Magna Carta to affirm the privileges of the Barons, which came to be exalted down the centuries as the charter of English liberties. The Magna Carta in Article 40 contained the promise: “To none will we sell, to none deny or delay, right or justice.” One of the most significant provisions in the Magna Carta is Article 61, which stated that,

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a representative council of 25 barons would have the power, if the King transgressed any clause, to demand justice and if the King failed to correct his error, the barons were given authority to “distrain and oppress us in every way in their power.”

The American War of Independence resulted in the Declaration of Independence of 4th July 1776 and the proclamation later of the Constitution of USA which remains in force up-to-date. The first ten Amendments to this Constitution were adopted in 1791. These Amendments and the XIV Amendment which guarantees the due process of law and equality before law constitute the American Statement of Civil Liberties.

Similarly, the French Revolution that took place inspired by the writings of persons such as Montesquieu and Rousseau, resulted in the Declaration of the Rights of Man of 1789 followed by the later Declaration of 1793. The Preamble of the French Constitution declared, that “men are born and remain free and equal in rights.”

Thus, the Magna Carta (1215), the English Bill of Rights (1689), the French Declaration on the Rights of Man and Citizen (1789), and the US Constitution and Bill of Rights (1791) are considered the written precursors to many of today’s “Human Rights” documents.19

Internationalization of Human Rights

After the First World War, tentative attempts were made to establish a “Human Rights” system under the League of Nations. However, these attempts were unsuccessful and ended abruptly with World War II. It took the trauma of that war, to cement international consensus in the form of the UN as a bulwark against war and for the preservation of peace.

The core system of “Human Rights” promotion and protection under the UN has a dual basis: the UN Charter, adopted in 1945, and a network of treaties subsequently adopted by UN members. The Charter-based system applies to all 193 UN Member States, while only those States that have ratified or acceded to particular treaties are bound to observe that part of the treaty-based system to which they have explicitly agreed.

The UDHR elaborated “Human Rights” and provided a common standard of achievement for all peoples and all nations. It recognized, that “the inherent dignity and equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world… it is essential… that “Human Rights” should be protected by the rule of law.” State responsibility for the protection of “Human Rights” within its jurisdiction was clearly recognized. The two Covenants – International Covenant on Civil and Political Rights (ICCPR) and


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ICESCR considering the obligation of the States under the UN Charter, agreed to the respect and protection of the basic rights. The ICCPR specifically mentions the inherent right to life, right against torture, prisoner’s rights, right to fair and speedy trial, guarantee against retroactive penal laws and testimonial compulsion etc. It also mentions in Article 4 that certain basic rights, such as right to life are non-derogable even during national emergency, and derogation of other rights when permissible is also to be limited to the extent necessary.

Some other important instruments are: International Convention on the Elimination of All Forms of Racial Discrimination (CERD), Convention Against Torture (CAT), CEDAW, CRC, Declaration on the Rights to Development, and Vienna Declaration and Programme of Action, 1993.

The Vienna Declaration adopted at the World Conference on Human Rights in 1993 recognized and reaffirmed the interdependence between democracy, development and “Human Rights”, and the universality, indivisibility and interdependence of the “Human Rights”.

The Paris Principles have been formulated in 1991 to emphasize the need of an autonomous national institution to monitor the status of “Human Rights” and to work for their protection. The State responsibility for the protection of “Human Rights” by the rule of law is to be discharged by appropriate legislation and its implementation by credible national institutions, of which judiciary is primary.

The Stockholm Conference, 1972 initiated worldwide participation and partnership in creating awareness to preserve the environment from further damage. Rio Earth Summit, 1992 carried forward the programme and emphasized the need for sustainable development to ensure the health and productive life of human beings and harmony with nature. Vienna Declaration, 1993 affirmed the right to development to meet equitably the development needs of the present and future generations. The World Conference on Human Rights recognized the serious threat to the human right to life from illicit dumping of toxic and dangerous waste. All States were called upon to vigorously implement the Conventions relating to them. The ILO Convention 169, the major international convention concerning indigenous peoples, and a forerunner of the Declaration on the Rights of Indigenous Peoples, includes also the value of environment in their systems of protection.20

The Millennium Declaration by the world leaders contains the pledge to meet the challenges of the new millennium, which reiterates the State obligation to protect “Human Rights”. Experts have recognized that respect for “Human Rights” is a precondition for sustainable development.

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Asian Perspective

“Asia” is a vast continent which house diverse political entities (states) and their people, with drastically different cultures and religions, and unevenly developed (or undeveloped) economies and political systems. Over the last few decades it has been subjected to growing international scrutiny. Conflicts (the Vietnam War, the civil conflict in Cambodia and Sri Lanka), crises (Indonesian occupation of East Timor), killings and popular uprisings (from Tiananmen Square to Burma) have captured the attention of the international community and ghastly brought to the fore “Human Rights” violations in the continent. Thus, today the greatest challenge to the assertion about the universality of “Human Rights” is coming from countries in Asia.

There is a belief among Asian States that the countries of the North Atlantic21 , particularly the USA determines the agenda of the UN Security Council and “Human Rights” discourse thereby asserting political dominance over the rest of the world. In addition to political control, it is argued that the North Atlantic countries control economic power and international economic policy through the Bretton Woods institutions such as the World Bank and the International Monetary Fund. The Asian countries also specifically question the universality of “Human Rights” claiming that political and civil rights as articulated by “Human Rights” documents are a product of the western enlightenment and that cultural reality of many societies requires a different approach. Thus, cultural relativism is put forward as an alternative.

The other argument put forward by Asian States is that globalization strategy emphasizes political and civil rights over economic and social development. It is stated that for developing countries, economic and social rights are more important, and if political and civil rights have to be curtailed for economic and social advancement, then it is the right of the individual nation to determine their course of action. Thus, emphasis on economic and social development is seen as a precursor to the enjoyment of all form of other rights. Any action which furthers the development process, even at the expense of other rights is therefore seen as justifiable.

Asian countries also argue that “Human Rights” articulated in international documents highlights the individual, while the basis of Asian societies is the community and the individual’s duty towards the community.

In addition, “Human Rights” doctrine is challenged by those who argue for the sanctity of the nation-state, since “Human Rights” discourse and structure challenges the inviability of the nation-state.22 Therefore, there is resistance among Asian countries to the notion that “Human Rights” anywhere are a matter of international concern, justifying international action.


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There is also increasing doubt among Asian Countries regarding forthright commitment by international community with regard to protection of rights and particularly humanitarian interventions, since in most instances it is induced by hegemonic power of some States, particularly to serve the interests of powerful countries like the USA.23

However, the reactions of the international community to the conflicts, crises and uprisings mentioned in a preceding paragraph, has led to changes in country attitudes and approaches. China, for example, published its first White Paper on “Human Rights” in 1991, after the Tiananmen Square killings, and Indonesia made concessions that led to the independence of East Timor. The international community played a crucial role in the resolution of the conflict in Cambodia, by structuring the dialogue between the parties and by insisting on the inclusion of a “Human Rights” component in the 1991 Paris Peace Agreements.

Thus, commitment to democracy and “Human Rights” continues to gain ascendancy in the Asian continent. A declaration of fundamental rights is seen in most modern constitutions 24 around the world because constitutional guarantees are necessary today to prevent tyranny of the majority.

Human Rights Protection under Sri Lankan Laws

Even before fundamental rights were guaranteed in our Constitution, under the doctrine of the Rule of Law (which has been part of the common law of Sri Lanka), where a person’s fundamental rights, such as those of personal freedom, freedom of speech, of peaceful assembly and of association, were infringed without legal justification, he could always seek remedy according to the law of the land.25The essential features in our Criminal Law such as the presumption of innocence, proof beyond reasonable doubt, the right to a fair trial, right to be informed of the reason for arrest and the right not to be deprived of personal liberty except according to procedure established by law, have been in existence for a very long period of time. Provisions of the Penal Code, the Criminal Procedure Code and the Evidence Ordinance contained safeguards that strengthened the machinery available to preserve Fundamental Rights. In the Bracegirdle case26 decided during colonial period, Chief Justice Abrahams said that under our law “there is definitely a body of well-known legal principles, excluding arbitrary executive action. No member of the executive can interfere with the liberty of the citizen except on the condition that he can support the legality of his action before a Court of Justice.”

While a Fundamental Rights chapter was for the first time included in the 1972 Constitution, there was no procedure laid out for the enforcement of fundamental

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rights. However, the Second Republican Constitution of 1978 extended the scope of fundamental rights in Sri Lanka to a great extent.

A perusal of the Preamble reveals that the fundamental rights enshrined in chapter III espouse and are founded on two broad principles, rooted in democratic governance and the rule of law, i.e. liberty/freedom and equality.

Article 3 of the Constitution provides that sovereignty is in the people and is inalienable and that sovereignty includes the powers of Government, franchise and fundamental rights.

Article 4 stipulates the manner in which the sovereignty of the people shall be exercised and provides in sub-article (d) thereof that:

the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner hereinafter provided.

Freedom of thought, conscience and religion,27 freedom from torture,28 right to equality,29 freedom from arbitrary arrest, detention and punishment,30 the freedom of speech, expression, assembly, association, culture, occupation and movement31 and right of access to information32 are among the fundamental rights guaranteed under the Constitution. The right to apply to the Supreme Court in respect of the infringement or imminent infringement of one’s fundamental rights by executive or administrative action has itself been given the status of a fundamental right. The rights guaranteed by Articles 10, 11, 12(1), 12 (3) and 13 of the Constitution are available to all “persons”, i.e. both natural and juristic persons, while the rights guaranteed in Articles 12(2) and 14 are available only to citizens. Further, the rights declared by Article 10 and 11 are absolute and not subject to any restriction. These two Articles can be amended only by a two-thirds majority in Parliament and approval by the People at a Referendum.33

Right to equality is dealt with in Article 12, which states: “All persons are qual before the law and are entitled to the equal protection of the law.” Thus, the two basic concepts are, “equality before the law” and “equal protection of the law”. While the first concept is negative, implying the absence of any special privilege in one’s favour, the latter is positive in content, meaning the application of the same law without any kind of discrimination to all alike.

The 1978 Constitution, does not contain a provision expressly guaranteeing the right to life. Article 13 (4) only prohibits punishment with death except by order of competent court made in accordance with procedure established by law. However, in Kottabadu Durage Sriyani Silva v Chanaka Iddamalgoda34 the Supreme Court


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held that the right to life was impliedly recognized in the Constitution, especially in Article 13(4). Where an infringement of the right to life was concerned the Court must interpret the word “person” contained in Article 126 (2) broadly, so as to include an heir or dependent of the person who had been put to death.

The Directive Principle of State Policy found in Chapter VI of the Constitution expressly declares that they do not confer legal rights and are not enforceable in any court of law.35 No question of inconsistency with the Directive Principles may be raised in any court or tribunal.

In Re the Thirteenth Amendment to the Constitution Bill36 Sharvananda CJ, observed that “…although the Directive Principles are not enforceable in courts of law, that shortcoming did not detract from their value as projecting the aims and aspirations of a democratic government. The Directive Principles require to be implemented by legislation and took the view that the two Bills represented steps in that direction.”37

When considering the question of the inter-relation between fundamental rights and Directive Principles of State Policy Wanasundera J, in Seneviratne V UGC38 stated that:“…….all relevant provisions of the Constitution must be given effect to when a constitutional provision is under consideration and, when relevant, this must necessarily include the Directive Principles. It has been said that the Directive Principles are in the nature of an instrument of instructions which both the legislature and executive must respect and follow……”

Under Article 126, the Supreme Court has sole and exclusive jurisdiction to hear and determine any questions relating to infringement or imminent infringement by executive or administrative actions of any fundamental rights declared and recognized in chapters iii and iv of the Constitution. Article 17 read with Article 126 entitles a person to seek redress from the Supreme Court in respect of any infringement or imminent infringement of a fundamental right by making an application to the court personally or by an Attorney at Law. There have been a number of cases where an Attorney at Law has filed action on behalf of the victim.39 There have also been several other cases where the Supreme Court has taken a sympathetic view of standing allowing claims even where the petitioner shares the interest with others, or the public at large.40

On the question of standing in Bulankulama’s case the Supreme Court observed: “… the petitioners, as individual citizens, have Constitutional right given by Article 17 read with Articles 12 and 14 and Article 126 to be before this Court. They are not disqualified because it so happens that their rights are linked to the collective rights of the citizenry of Sri Lanka – rights they share with the people of Sri Lanka. ….such collective rights provide the context in which the alleged infringement or imminent infringement of the petitioner’s fundamental rights ought to be considered…..”

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In a recent case Noble Resources International Pte Ltd V Hon. Ranjith Siyambalapitiya41 the Supreme Court held that “.. the Petitioner Company per se which is incorporated in Singapore has no locus standi to invoke the jurisdiction of this court, for the violation of its Fundamental Rights”. Despite this, the Court considered the merits of the application since some of the events that took place in the award of the tender to the 22nd Respondent, “shock the conscience of the Court”, especially when the awarding of the tender involves “public funds”. The Court in the anxious considerations of its role as a Court of Equity and also a Court of Justice confronted the “travesty of justice” that will result if a Petitioner whose fundamental right has been “infringed or threatened to be infringed” is denied redress due to the upholding of a preliminary objection.

The Supreme Court has also interpreted the provisions of the Chapter on Fundamental Rights in a manner to give recognition to economic and social rights. The Court has recognized the obligations of the State vis-à-vis protection of natural resources on behalf of the public42, the right to livelihood43, the right to health44 and access to water45.

Sri Lankan Supreme Court has also increasingly resorted to international norms to interpret the Constitution. In Bulankulama’s case the court referred extensively to international law and concepts on sustainable development. The Court referred to the Stockholm Declaration of 1972 and the Rio De Janeiro Declaration of 1992 and stated that the proposed agreement must be governed by the principles set out in these two documents.

In Weerawansa v Attorney General46 the Supreme Court referred to Article 27(5) stating that the State must respect international law and treaty obligations in its dealings with its own citizens, especially where their liberty is involved. The Court referred to the ICCPR and noted that Sri Lanka was a party to both Covenants and the First Optional Protocol. Human Rights under Indian Constitution

Justice, liberty, equality and fraternity are promised to be secured to all citizens assuring the “dignity of the individual and unity and integrity of the nation”, in the Preamble of the Constitution. The Indian Constitution was framed embodying the universal principles of “Human Rights”, and it also prescribes the principles fundamental to establish a welfare state.47 The Indian Constitution promulgated in 1950 was contemporaneous with the UDHR and incorporated substantial provisions of this international instrument. In the Indian Constitution a large part of “Human Rights” are named as Fundamental Rights, and the right to enforce fundamental rights itself has been made a fundamental right.


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The Part IV of the Constitution containing the Directive Principles of State Policy provides a long list of human, civil and economic rights for the people and form the bedrock of “Human Rights” in India. The main purpose of this charter of positive rights is to ensure social, political and economic justice to all by laying down basic principles of governance.48 These principles are intended to be kept in mind both by the legislatures in enacting laws and by the executive authorities in enforcing laws. Although these principles are not enforceable by any Court yet they are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws for the general welfare of their men, women and children.49 These rights are: i)Providing adequate means of livelihood50 ii)Equal pay for equal work for both men and women51 iii)Adequate protection of the health and strength of workers, men and women52 iv) Equal Justice and free legal aid53 v) Living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities54 etc.

While fundamental rights enumerated in Article 14 to 32, guarantees the civil and political rights of individuals, the directive principles mandate the State to secure their economic, social and cultural rights. The above together correspond to the provisions of the UDHR, ICCPR and ICESCR.55

Part IVA which contains only Article 51A enumerates the fundamental duties of the citizens, which were earlier implicit in the constitutional scheme. Parts III, IV and IVA together form a compendium and indicate the nature of polity in which every citizen along with the government has a role to fulfill the constitutional promise.56

The right to equality (Article 14), right to freedoms (Article 19), protection against retroactive penal laws and testimonial compulsion (Article 20), and the right to life and liberty (Article 21) are the core rights embodying the basic freedoms. The Constitution permits only reasonable restrictions by legislation in specified situations, and Article 359 expressly makes Article 20 and 21 non-derogable. The Indian Supreme Court by relaxing the rules regarding locus standi had provided direct access to even the most vulnerable persons through social activists in the form of public interest litigation.57 Preservation of environment, ecology, biodiversity, wildlife, marine life and forests are treated as facets of right to life.

Right to corruption free governance was recognized as a “Human Right” based on Article 14 and 21. The Indian Supreme Court enforced probity in public life by enforcing accountability of high public men in the Hawala case58.

To curb sexual harassment at the work place, the Supreme Court, in the Vishaka case59 formulated guidelines and provided a mechanism to deal with such instances, declaring it to be law in accordance with Article 141 till legislation is enacted. This was done in exercise of the power under Article 32 read with Article

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142, and reliance was placed on CEDAW.60 The decision in Visaka case also developed a canon of construction, that international instruments and norms can be used to fill gaps and to enlarge the scope of constitutional guarantees, except to the extent of inconsistency between them.61

Conclusion

The recognition and protection of “Human Rights” is a result of a long process that had its origins many centuries ago. Over seven centuries elapsed from the Magna Carta of 1215 to the Universal Declaration of Human Rights in 1948. It was the product of wars, revolutions and other social movements in the course of which many human lives were lost and tremendous amount of property destroyed. Most importantly, it was the product of the experiences of the People inspired, nurtured and cultivated by the writings of the intelligentsia. These social values proposed that society should be based upon a firm respect for the individual and his rights, and that the Governments are there to serve the individual and not vice versa. “Human Rights” are thus, neither Eastern nor Western in origin. They are universal and whether they are civil, political, economic, social or cultural, they are interrelated and indeed indivisible. However, one of the most daunting question before the international human rights community today is, how best “Human Rights” could be protected and promoted in developing Asian countries given the realities and dynamics of development in international political economy. Thus, it is important that global standards are enforced taking account of the complexity and diversity of the most fragile and vulnerable social groups and States.

Endnotes

1 Available at: https://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx, accessed on 9.9.2018

2 Ibid 3 C.G. Weeramantry, Justice Without Frontiers: Furthering human Rights, p.34 Ibid5 Available at: www.academia.edu/9879314/A_Glance_at_the_East_Asian_Perspective_of_

Human_Rights, accessed on 9.9.20186 Ibid7 Ibid8 Ibid 9 Mahabharata (Anusasanaparva 61.32-33)10 Supra Note 2 11 Ibid


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12 Witte, ‘Law, Religion and Human Rights’, (1996) 28 Columbia Human Rights Law Review 1, at p. 27

13 A.H.G. Ameen, Human Rights – An Islamic Perspective14 Ibid 15 Ibid16 Ibid 17 Available at: https://www.activesustainability.com/sustainable-development/brief-history-

human-rights/, accessed on 9.9.201818 Ibid 19 Available at: http://hrlibrary.umn.edu/edumat/hreduseries/hereandnow/Part-1/short-

history.htm, accessed on 9.9.201820 Supra Note 1621 12 founding members in 1949: Belgium, Canada, Denmark, France, Iceland, Italy,

Luxembourg, the Netherlands, Norway, Portugal, UK and USA. At present NATO has 29 members.

22 Available at: ccbs.ntu.edu.tw/FULLTEXT/JR-PHIL/ew104084.html, accessed on 9.9.201823 Ibid24 Jayampathy Wickramaratne, Fundamental Rights in Sri Lanka, p.1225 J.A.L. Cooray, Constitutional and Administrative Law of Sri Lanka, p.60826 39 NLR, 19327 Article 1028 Article 1129 Article 1230 Article 1331 Article 1432 Article 14 A33 Article 8334 SC Minutes of 10.12.2002 and 8.8.200335 Article 2936 (1987) 2 SLR 31237 Ibid38 (1978-79-80) 1 SLR 18239 Sunil Rodrigo V Chandrananda de Silva1997 3SLR 265, Nalika Kumudini V Nihal

Mahinda 1997 3 SLR 33140 Visvalingam V Liyanage 1984 2SLR 123, Ansalin Fernando V Sarath Perera 1992 1SLR

411, Sunila Abeysekera V Ariya Rubasinghe 2000 1 SLR 31441 SC FR No 394/2015, SC Mutes 24.06.201642 Bulankulama and Others v Secretary for Industrial Development and Others (2000) 3

SLR 243

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43 Jayasinghe v Attorney General (1994) 2 SLR 7444 Gerald Mervin Perera v Suraweera SCFR 328/2002, SC Minute of 4.4.200345 Dissanayake v Minister of Irrigation and Water Management SCFR 329/2002 minute of

30.09.2002 46 (2000) 1 SLR 38747 Available at: https://www.researchgate.net/publication/291984579_JUDICIAL_

PROCESS_AND_HUMAN_RIGHTS_IN_INDIA, accessed on 9.9.201848 Ibid49 Article 3750 Article 39 (a) 51 Article 39(d) 52 Article 39(e)53 Article 39 A54 Article 4355 Supra Note 4756 Ibid57 Ibid58 AIR 1998 SC 88959 AIR 1997 SC 301160 Ibid 61 Ibid


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SALIENT FEATURES PERTAINING TO A DRIVING LICENCE IN

TERMS OF MOTOR TRAFFIC ACT.

Manjula KarunarathnaB.Com(Sp.) Marketing, University of Sri J’pura, Addl. Magistrate- Gampaha.

The provisions relating to this aspect are mainly described (from section 122 to section 139) under Chapter VII of the Motor Traffic Act (as amended). By this article, it is expected to discuss some salient features pertaining to a Driving Licence that had drawn the attention of Courts frequently.

Validity of a Driving Licence in terms of Motor Traffic ActThe legal position pertaining to this is described in Section 126 of the Motor

Traffic Act (as amended) and under that I wish to refer to section 126 of the Motor Traffic Act No. 14 of 1951(principal enactment) which reads as follows.

126 (1) Subject to the provisions of subsections (2) and (3), every driving licence issued under this Part shall be effective without renewal during the lifetime of the holder thereof.

(2) A driving licence which is cancelled under the succeeding provisions of this Part shall cease to be effective on the date of the cancellation thereof.

(3) A driving licence which is suspended for any period under the succeeding provisions of this Part shall not be effective during the period of such suspension (emphasis is mine).

The aforesaid section was repealed by Act No. 21 of 1981 which came into force on 23rd March 1981 and the new section that was introduced provides that every driving licence shall be valid for such period as may be prescribed and be renewed thereafter.

In this back ground I wish to draw my attention to section 126 of the Motor Traffic Act, as amended by Act No. 21 of 1981 which reads as follows.

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126(1) Subject to the provisions of subsections (2) and (3), every driving licence issued under this Part shall be valid for such period as may be prescribed, and every such driving licence may be renewed for such period or periods, upon the payment of such fee, as may be prescribed.

(2) A driving licence which is cancelled under the succeeding provisions of this Part shall cease to be effective on the date of cancellation thereof.

(3) A driving licence which is suspended for any period under the succeeding provisions of this Part shall not be effective during the period of such suspension (emphasis is mine)

Considering the above amendment of law, my attention is drawn to the judgment of Justice Sarath N. Silva, Judge of the Court of Appeal (as he then was) in Gunaratne Vs. Kotakadeniya, Commissioner of Motor Traffic and others (1992) 2 SLR 14 wherein it was held,

“In terms of section 126(1) as it originally stood in the Act, every driving licence that is issued is “effective without renewal during the lifetime of the holder” unless it is cancelled or suspended under the provisions of the Act. This section was repealed by Act No. 21 of 1981 which came into force on 23.3.1981 and the new section that was introduced provides that every driving licence “shall be valid for such period as may be prescribed” and be renewed thereafter. The Petitioner contended that the licences issued prior to 23.3.1981 continue to be valid without renewal during the lifetime of the holder. I note that there is no provision in the repealing statute that relates back to the licence issued under the former section. These licence holders had acquired a right subject to the limitations that were specified to have an effective licence without renewal during their lifetime. Therefore, in my view section 6 (3) (b) of the Interpretation Ordinance will apply and that right will subsist in the absence of any statutory provision to the contrary in the repealing statute. The period of validity of licenses has so far not been prescribed under section 126 (1) enacted in 1981. Therefore, even the licence issued on and after 23.3.1981 continue to be effective without any limitation as to time.” (emphasis is mine)

After the aforesaid Judgment of the Court of Appeal, the Legislature had taken steps introduce further amendments to the Motor Traffic Act, by Act No.44 of 1992.

Considering the above amendment of law, I wish to refer to the Preamble of the said amendment which reads as follows.

“WHEREAS it is the policy of the Government of Sri Lanka, that it is necessary in the interests of the safety of the users of the highway to prescribe a minimum standard of driver competence and vehicle fitness, to ensure that


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(a) every vehicle permitted to be used on any highway ; and

(b) every person permitted to drive or maintain control over any such vehicle on such highway, shall conform to or possess such minimum standard of competence or fitness as may be prescribed in that behalf by law: NOW, therefore, be it enacted by the Parliament of the Democratic Socialist Republic of Sri Lanka as follows:”(emphasis is mine)

Under and in terms of the intention of the Legislature as shown above, the following new sub section was inserted immediately after section 126 of the principal enactment as follows.

“126 (A) (1) Notwithstanding anything to the contrary contained in this Act, the Minister may, by Order published in the Gazette, declare that every driving licence issued or deemed to be issued under this Act, bearing a serial number specified in the Order, shall be replaced with a driving licence in the form of a card in the prescribed form and fix such date as he may deem suitable for the invalidation of the first mentioned licence, so issued, notwithstanding that such licence has been issued for a specified period or for the lifetime of the holder.

(2) Where an Order under subsection (1) is made, every person who holds a driving licence bearing a serial number specified in such Order, shall make an application to the Commissioner for the replacement of such licence with a driving licence in the form of a card in the prescribed form on or before the date fixed for the invalidation of such licence.

(3) Every application made under subsection (2) shall be accompanied by-

(a) the prescribed fee in respect of the replacement of the driving licence;

(b) two copies of a photograph of the applicant of such size as may be prescribed and taken not earlier than six months before the date of the application; and

(c) the driving licence sought to be replaced.

(4) Where an application is made for the replacement of a driving licence under this section, the Commissioner shall issue to every person who makes such application under subsection (2), a temporary driving licence in the prescribed form. Such temporary driving licence shall be valid until a driving licence in the form of a card is issued to such person under this section.” (emphasis is mine)

Under and in terms of the aforesaid amendment, the Minister by Order published in the Gazette No. 729/6 dated 26th August 1992 had cancelled almost

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all the Driving licences from the specific dates which were described in the second column (including DL No. 1-540000) and re-issued driving licenses subject to the prescribed fees.

Under and in terms of the aforesaid Gazette No. 729/6 dated 26th August 1992, all the re-issued Driving Licences (under the MTA 33 (b) form) are renewable.

Pertaining to the date of renewal aforesaid, under and in terms of the Gazette Notification No. LDB-24/5(ii) dated 24th April 1987, a Driving Licence issued for Motor Coaches, Motor Lorries and in addition motor Ambulances and Motor Hearses and Motor Tricycle Vans,

• shall be valid for a period of three years from the date of its issue.

• a Driving Licence on which the date of renewal is specified, is renewable for a further period of three years from that date.

• a Driving License on which the date of renewal has not been specified shall be valid for a period of one year from the date of publication of these regulations or for one year after the expiry of three years from the date of issue of that licence whichever occurs later.

However, due to a misunderstanding of the intention of the Legislature [Under and in terms of the preamble of the Motor Traffic Act, as amended by Act No.44 of 1992, pertaining to minimum standard of driver competence and/or fitness] the relevant authorities have not taken steps to Gazette the validity date of renewal of other classes of Driving Licences which are not covered under the said Gazette Notification No. LDB-24/5(ii) dated 24th April 1987.

Under the above circumstances, the legislature had taken further steps to amend the said section 126 of the Motor Traffic Act, by Act No. 08 of 2009.

Under and in terms of the aforesaid Motor Traffic (Amendment) Act No.08 of 2009 the period of validity of licences has been prescribed under section 126 (1) in respect of motor vehicles,

(a) belonging to the classes specified in items 4(i), 4(ii), 5, 6(i), 6(ii), 7, 9 and 10 of the Schedule to section 122(Heavy Vehicles), shall be valid for a period of four years.

(b) belonging to the classes specified in items 1(i), 1(ii), 2, 3 and 8 of the Schedule to section 122 (Other than the Heavy Vehicles) shall be valid for a period of eight years.

Accordingly, the legislature has intentionally prescribed the period of validity of the Driving Licenses issued,


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• pertaining to the Heavy Vehicles- Three years to Four years.

• pertaining to the vehicles other than the Heavy Vehicles- for Eight years.

Therefore, validity date of renewal of other classes of Driving Licences which are not covered under the said Gazette Notification No. LDB-24/5(ii) dated 24th April 1987 up to the year 2009, should be Eight years from the date of its issue and after the aforesaid period such Driving License shall get automatically canceled by operation of law.

Accordingly, at present every Driving License issued pertaining to,

a. Heavy Vehicles- Four years from the date of issue.

b. Other than the Heavy Vehicles- Eight years from the date of issue.

Deemed as cancelled.

The instances where a Driving Licence should be suspend by the Court

Under and in terms of the Motor Traffic Act there are five instances where the Court should be suspending a Driving Licence.

1. Where a driver of a motor vehicle contravenes the provisions of subsection (1) of section 145 and thereby causes injury to any person, his driving licence should be suspend for a period of six months. (Under and in terms of the Section 145(3) of the Motor Traffic Act)

2. Where a driver of a motor vehicle contravenes the provisions of subsection (1) of section 145 and thereby causes grievous injury to any person, his driving licence should be suspend for a period of six months. (Under and in terms of the Section 145(4) of the Motor Traffic Act)

3. Where a driver of a motor vehicle contravenes the provisions of subsection (1) of section 145 and thereby causes the death of any person, his driving licence should be suspend for a period of twelvemonths. (Under and in terms of the Section 145(5) of the Motor Traffic Act)

4. when that person (the Driver) drew a vehicle on a highway after he has consumed alcohol or any drug, his driving licence should be suspend for a period not exceeding twelve months. (Under and in terms of the Section 216 of the Motor Traffic Act).

5. when that person (the Driver) contravenes the provisions of subsection (3) of section 151 drew a vehicle on a highway negligently or without reasonable consideration for other persons using the highway, his driving licence should be suspend for a period of six months. (Under and in terms of the Section 217(2) of the Motor Traffic Act).

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The instances where the Driving Licence should be cancelled by Court

Under and in terms of the Motor Traffic Act there are Four instances where the Court should cancel the Driving Licence.

1. when that person (the Driver) intended for the carriage of persons for fee or reward on a highway after he has consumed alcohol or any drug. (Under and in terms of the Section 216(A) of the Motor Traffic Act)

2. when that person (the Driver) drives a motor vehicle on a highway after he has consumed alcohol or any drug and thereby causes injury to any person. (Under and in terms of the Section 216(B) of the Motor Traffic Act)

3. when that person (the Driver) drives a motor vehicle on a highway after he has consumed alcohol or any drug and thereby causes death to any person. (Under and in terms of the Section 216(B) of the Motor Traffic Act)

4. when that person (the Driver) is guilty of any offence, for which no other punishment is expressly provided in this Act, on a third or subsequent conviction. (Under and in terms of the Section 224 of the Motor Traffic Act)

When a Driving Licence cancelled by the Court, the remedy available to the said person (the Driver).

The procedure pertaining to this is described in Sub Sections 137(5) to 137(9) of the Motor Traffic Act (as amended) and under that I wish to draw my attention to the aforesaid sub sections 137(5) to 137(9) of the Motor Traffic Act (as amended) as follows.

137(5) The court which has made order cancelling the driving licence of any person may, on the application of that person made at any time after the expiry of a period of two years reckoned from the date of cancellation, and after such inquiry as the court may consider necessary, make order authorizing him to apply to the Commissioner for a new driving licence in accordance with the provisions of this Act.

(6) The court shall notify the Commissioner and the police of the receipt of any such application and shall afford the Commissioner and the police an opportunity of being heard and of making representations against the grant of the application and of adducing evidence in support of any representation so made. Notice on the police may for the purposes of this subsection be served on the Assistant Superintendent of Police of the area in which the court is situated.


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(7) The court shall, in the consideration of any such application have regard to all the circumstances of the case with particular reference to the fitness of the applicant to hold a driving licence.

(8) Any such application may, if refused, be renewed at any time after the expiry of a period of two years reckoned from the date of refusal, and further applications may in like manner be made to the court at successive intervals of not less than two years reckoned from the date of the last refusal. All the other provisions of this subsection, relating to the first application made by any person thereunder after the cancellation of his driving licence, shall apply equally to any other application made by him after the refusal of the first application

(9) Where any court makes order under this subsection authorizing any person to apply for a new driving licence, such person may make application for the certificate under section 124 and the provisions of this Part relating to the issue of driving licenses shall apply accordingly. Where a new driving licence is issued to any such person the Commissioner shall make an entry in the new licence to the effect that it is issued in consequence of an order under this section, but shall not set out there in any particulars relating to any previous conviction of that person. (emphasis is mine).

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AN OVERVIEW OF THE LAW RELATING TO PARATE EXECUTION PROCEDURE IN SRI LANKA

Nuwan Tharaka HeenatigalaAdditional District Judge-Kandy

Post Attorney Diploma in Corporate Law-Sri Lanka Law College, Post Graduate Diploma in Human Rights-University of Colombo, Diploma in International Relations-BCIS

IntroductionLegal relationship between the bank and the customer begins with the consensus

of the contract that applies to them. The implementation of the contract was initially intended for the realization of the purpose of the parties. Parate Execution is one form of enforcing banks’ rights under a contract with the customer. Parate execution is a procedure special to banks, which allows the resale of property mortgaged to the bank. The mortgage is organized without going through court proceedings and the institution itself is given the power to hold an auction for the sale of the property by the appointed auctioneer. “Parate” is a Dutch term which means “immediate” and “parate execution” basically means a debt recovery process outside the normal law.

In Sri Lanka Parate execution procedure was adopted by the Bank of Ceylon1 and People’s Bank2 and has now been taken up by private commercial banks. The Recovery of Loans by Banks (Special provisions) Act No.4 of 1990 empowers all commercial banks while the Bank of Ceylon and the People’s Bank have their own Acts.

The Recovery of Loans by Banks (Special provisions) Act No.4 of 1990This special statute which is categorized as special debt recovery legislation

was the product of a report issued in 1983 by a Debt Recovery Committee, chaired by Mr.D Wimalaratne, a retired Supreme Court Judge. The legislation was not enacted until 1990, because of very strong opposition from the pressure groups such as Sri Lankan Bar Association which argued that the proposed legislation was “discriminatory, draconian in their nature and harsh and superfluous”. Yet despite all opposition, both statutes became law from 1990.


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The preamble of the said act states that it’s “AN ACT TO PROVIDE FOR THE RECOVERY OF LOANS GRANTED BY BANKS FOR THE ECONOMIC DEVELOPMENT OF SRI LANKA ; AND FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO”3

According to the interpretation of the Recovery of Loans by Banks (Special provisions) Act No.4 of 1990 [hereinafter mentioned as the ‘said Act’] as amended by Act No. 24 of 1995 the “Bank” means:4

(a) a licensed commercial bank within the meaning of the Banking Act, No. 30 of 1988, other than any bank established under the provisions of the Regional Rural Development Bank Act, No. 15 of 1985:

(b) The Development Finance Corporation of Ceylon established by the Development Finance Corportion of Ceylon Act (Chapter 165) ; and

(c) The National Savings Bank established by the National Savings Bank Act, No. 30 of 1971.

Whenever default is made in the payment of any sum due on any loan, whether on account of principal or of interest or of both, default shall be deemed to have been made in respect of the whole of the unpaid portion of the loan and the interest due thereon up to date; and the Board may in its discretion, take action as specified either in Section 5 or in section 4 ;Provided, however, that where the Board has in. any case taken action, or commenced to take action, in accordance with section 5, nothing shall be deemed to prevent the Board at any time from subsequently taking action in that case by resolution and section 4 if the Board deems.5

According to the sec 5A of Recovery of Loans by Banks (Special Provisions) Act No.4 of 1990 as amended by Act No.1of 2011 No action shall be initiated in terms of section 3 of the principal enactment for the recovery of any loan in respect of which default is made, nor shall any steps be taken in terms of section 4 or section 5 of the aforesaid Act, where the amount of such loan is less than rupees five million, and provided that at the time of default when calculating the amount due and owing to the Bank on the loan granted to such defaulter, the interest accrued on such loan and any penalty imposed thereon, shall not be taken into consideration.

This provision was further amended by Act No. 19 0f 2011 and after the said amendment Section 5A the Recovery of Loans by Banks (Special Provisions) Act No.4 of 1990 as amended by Act No.1of 2011 and Act No.19 of 2011 reads as follows:

5A. (1) No action shall be initiated in terms of section 3 of the principal enactment for the recovery of any loan in respect of which default is made, nor shall any steps be taken in terms of section 4 or section 5 of the aforesaid Act, where the principal amount borrowed of such loan is less than rupees five million:

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Provided however, at the time of default when calculating the principal amount borrowed due and owing to the Bank on the loan granted to such defaulter, the interest accrued on such loan and any penalty imposed thereon, shall not be taken into consideration.

Where a borrower is dead and probate of his will or letters of administration to his estate have not been issued to any person, the District Court of Colombo or the District Court of the district in which the property, mortgaged to the Bank by the borrower, is situate, may upon application made in that behalf by a bank and after service of notice of the application on such persons, if any, as the court may order, and if satisfied that the grant of probate or the issue of letters of administration is likely to be unduly delayed, appoint a person to represent the estate of the borrower for the purposes of this section ; and the provisions of section 4 shall not apply in the case of any default made by such borrower unless and until a parson is appointed under this subsection to represent the estate of such borrower.6

Notice of every resolution under section 4 authorizing the sale of any property shall be published in the Gazette and in at least three daily newspapers, in the Sinhala, Tamil and English languages and copies of such notice shall be dispatched to the borrower, if he is alive, and to every person who has, in respect of that property, registered his address as required by section 2 and if that property consists of the interest of a lessee under a lease from the State, to the Land Commissioner.7

Notice of the date, time and place of every sale authorized by a resolution under section 4 shall, not less than fourteen days before the date fixed for the sale be published in the Gazette and copies of such notice shall be dispatched to the borrower, if he is alive, and to every, person to whom notice of any resolution is required to be dispatched under section 2, and posted on or near the property which is to be sold8. If the amount of the whole of the unpaid portion of the loan, or the amount of the installment in respect of which default has been made together with interest payable and of the moneys and costs, if any, recoverable by the Board under section 139 is tendered to the Board at any time before the date fixed for the sale, the property shall not be sold, and no further steps shall be taken in pursuance of the resolution under section 4 for the sale of that property.10 The Board can fix an upset price below which the property shall not be sold to any parson other than the bank to which the property is mortgaged.11

In any case where two or more loans have been granted by a bank on the security of the same property and, default made in the payment of any sum due upon any one or more of such loans, the foregoing provisions of this Act shall apply notwithstanding that default may not have been made in respect of the other loan


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or any of the other loans and the Board may, in any such case, by resolution under section 4 authorize the sale of the property for the recovery of the total amount due to the Bank in respect of both or all of the loans, as the case may be, and these provisions shall apply accordingly12. According to Section 12[2] of the said Act the provisions of the said Act shall not prohibits a bank from recovering the amount due on a mortgage bond in accordance with the previsions of any other written law.

If the mortgaged property is sold, the bank shall, after deducting from the proceeds of the sale the amount due on the mortgage and the moneys and costs recoverable under section 13, pay the balance remaining, if any either to the borrower or any person legally entitled to accept the payment due to the borrowers or where the Board is in doubt as to whom the money should be paid into the District Court of the district in which the mortgage property is situate.13

If the mortgaged property is sold, the Board shall issue a certificate of sale and thereupon all the right, title, and interest of the borrower to, and in, the property shall vest in the purchaser ; and thereafter it shall not be competent for any person claiming through or under any disposition whatsoever of the right, title or interest of the borrower to, and in, the property made Or registered subsequent to the date of the mortgage of die property to the bank, in any court to move or invalidate the sale for any cause whatsoever, or to maintain any right title or interest to, or in, the property as against the purchaser14. A certificate signed by the Board under section 15[1] of the said Act shall be conclusive proof with respect to the sale of any property , that all the provisions of this Act relating to the sale of that property have been complied with. If the purchaser is some person other than the bank, the certificate shall be substantially in the prescribed form and, if the purchaser is the bank, the certificate shall be substantially in such other form as may be prescribed. Every certificate of sale shall be liable to stamp duty and charges as if it were a conveyance of property and to any registration and other charges authorized by law, all of which shall be payable by the purchaser. Where the property sold consists of the interest of a lessee under a lease from the State, then, if the purchaser of the property is some person other than the bank, the certificate of sale shall not be signed by the Board unless the Land Commissioner, in the exercise of his discretion, has approved the purchaser.

The purchaser of any immovable property sold in pursuance of the provisions of the said Act shall, upon application made to the District Court of Colombo or the District Court having jurisdiction over the place where that property is situate, And upon production of the certificate of sale issued in respect of that property under section 15, be, entitled to obtain an order for delivery of possession of the that property.15 Every such application shall be made and shall be disposed of, by way

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summary procedure, in accordance with the. provisions of Chapter XXIV of the Civil Procedure code ; and on all documents filed the purpose of each such application and on all proceedings held thereupon, stamp duties and other charges shall be payable at the respective rates payable under any written law for the time being in force on applications for, and proceedings connected with, of incidental to, the execution of a decree of a District Court for the delivery of possession of any immovable property of the same value as the property to which such application relates.16 Where the any immovable property sold in pursuance of the preceding provisions of this Act in the occupancy of the borrower or some person on this behalf or of some person claiming under a title created by the borrower subsequently to the mortgage of the property to the bank the District Court shall order delivery to be made by putting the purchaser or nay person whom he may appoint to receive possession on His behalf, in possession of the property and Where any immovable property sold in pursuance of the preceding provisions of this Act is in the occupancy of tenant or other person entitle to occupy the same , the District Court shall order delivery to be made by affixing a notice that the sale has been taken place , in the Sinhala , Tamil and English languages, in some conspicuous place on the property, and proclaiming to the occupant by beat of tom or any other customary mode or in such manner as the court may direct, at some convenient place , that the interest of the borrower has been transferred to the purchaser The cost of such proclamation shall be fixed by the court and shall in every case be prepaid by the purchaser.17 According to section 16[5] of the said Act Every order under subsection (3) or subsection (4) shall be deemed, as the case may be, to be an order for delivery of possession made under section 287 or section 288 of the Civil procedure Code, and may be enforced in like manner as an order so made, the borrower and the purchaser being deemed, for the purpose of the application of any provisions of that Code, to be the judgment debtor and judgment creditor, respectively.

Where the property sold has been purchased on behalf of the bank, the Board may at any time before it resells that property, cancel the sale by an endorsement to that effect on a certified copy of the certificate of sale, upon the borrower or any person on his behalf paying the amount due in respect of the loan for which the property was sold (including the cost of seizure and sale) and interest on the aggregate sum at a rate not exceeding the prescribed rate per annum. Such an endorsement shall, upon registration in the office of the Registrar of lands, re-vest the said property in the borrower as though the sale under this Act has never been made.18 If the property so sold has been purchased on behalf of the bank and the sale is not cancelled under section 17, the- Board may at any time re-sell the properly and transfer to the purchaser by endorsement on a certified copy of the certificate referred to in


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subjection (3) of section 16, all the right, title and interest which would have been acquired by the purchaser at the original sale.19

Any person who without reasonable cause, resists, obstructs or prevents a person authorized by the land by a resolution under section 4 to sell and property mortgaged to the bank from carrying out such sale “Shall be guilty of an offence and shall on conviction after trial by a Magistrate, be liable to imprisonment not exceeding six years, or to a fine not exceeding five thousand rupees, or to both such imp imprisonment and fine.20

Important Judicial Decisions on Parate Execution Procedure in Sri Lanka

Even though the procedure relating to Parate Execution and provisions in The Recovery of Loans by Banks (Special provisions) Act No.4 of 1990 considered as a draconian piece of legislation Superior courts in Sri Lanka narrows down banks ability to use these provisions in recovery of loans. Decided cases explained hereinafter will illustrate how our Courts restrict some provisions in the said Act.

Definition of ‘principal amount borrowed due and owing to the bank:-

By Amendment Act No.19 of 2011 which was certified on 31.3.2011 the word “amount” in the section 5A of the said Act was replaced with words ‘principal amount borrowed’. Before the enactment of Act No.19 of 2011, when the borrower of a loan was in default the bank had to calculate, at the time of default, the amount due and owing to the bank on the loan granted to the borrower. However the amount so calculated did not include the interest and any penalty imposed on the borrower. After the enactment of Act No.19 of 2011, the words ‘at the time of default when calculating the principal amount borrowed due and owing to the bank’ must be carefully considered. After the enactment of Act No.19 of 2011, when a borrower of a loan is in default, the bank has to calculate, at the time of default, the principal amount borrowed due and owing to the bank. Then there is a question regarding that what is meant by the phrase ‘principal amount borrowed due and owing to the bank?

In Sumudu Sanjeevani Nanayakkara Vs Hatton National Bank PLC & others21 it was held “that prior to and after the enactment of Act No.19 of 2011, if the original amount of the loan granted was less than Rs.5 million, the bank cannot, in a case of default, sell the property mortgaged by public auction; and that after the enactment of Act No.19 of 2011, if the balance amount of the original amount of the loan is less than Rs. 5 million, the bank cannot, in a case of default, sell the property mortgaged by public auction in terms of Section 4 of the Act even if the original amount of the loan was Rs.5 million or above”22 Therefore if the balance due amount of the

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original loan amount is less than Rs 5 Million banks cannot adopt Parate Execution procedure to recover such due.

Whether any property mortgaged other than by borrower will be subject to parate execution :-

In 2005, in a Five-Judge Supreme Court decision headed by the then Chief Justice Sarath Silva [with one dissenting judgment] the Court refused to recognize that any property mortgaged other than by borrower will be subject to parate execution. In other words, third party mortgages would be excluded from the right to parate execution.23

However, the law referred to in the aforesaid decision in Chelliah Ramachandran v. Hatton National Bank had been slightly varied by a subsequent decision of the Supreme Court. This deviation had been pronounced in the case of Hatton National Bank Limited v. Samathapala Jayawardena and 2 others24. In that decision His Lordship Justice C.N.Jayasinghe held with Shiranee Tilakawardena J and Saleem Marsoof, J agreeing that:-

“To pierce the corporate veil is an expression that I would reserve for treating the rights or liabilities or activities of a Company as the rights or liabilities or activities of its shareholders. To lift the corporate veil or look behind it, on the other hand, should mean to have regard to the shareholding in a Company for some legal purpose”. As far as this case is concern, it is quite obvious that the 1st and 2nd Respondent being Directors of Nalin Enterprises (Pvt) Ltd, benefited from the facilities made available to the said Company by the Petitioner Bank, and to that extent they cannot claim that the mortgage which secured the facilities fall within the category of “third party mortgage” as contemplated in the majority judgment of this Court in Ramachandran v. Hattaon National Bank”

In the circumstances, it is clear that the provisions contained in the Recovery of loans by Banks (Special Provisions) Act No.4 of 1990 is applicable only to the properties of the principal borrowers of a facility obtained from the institutions referred to in the Act and to the properties owned by the directors of a company registered under the Companies Act when such company is the principal borrower of the facility that had been defaulted and if the said directors benefited from the facilities made available to the said Company. The aforesaid position in law referred to in H N B Vs. Samatapala Jayawardena and two others had been followed in the cases of Yashodha Holdings (Pvt) Limited Vs. Peoples Bank25 and Samatapala Jayawardena Vs. Sampath Bank and another 26as well.


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Whether a bank can proceed to parate execute the property mortgaged to it, in terms of the Recovery of Loans by Banks (Special Provisions) Act No.4 of 1990 when there is an application under the Companies Act to wind up a company?:-

This question arose in DFCC Bank Vs Seylan Bank & 5 Others27 and it was held that the property belonging to the company sought to be wound up is not liable to be auctioned in terms of the Recovery of Loans by Banks (Special Provisions) Act No.4 of 1990 and the sections 260 and 261 of the Companies Act No.17 of 1982 should apply in this regard. Further it was held that merely because the words “Special Provisions” are found in the title to an Act, provisions of such an Act cannot have the effect over the other enactments unless clear provisions are found to that effect in the subsequent law. The rationale behind the said decision was that a grave and irremediable loss and damage would be caused to the rest of the creditors of a company sought to be wound up, if one creditor is permitted to dispose of the property of the company after the winding up proceedings had begun.

Certificate of sale is conclusive proof in respect of the property:-

Section 16(1) of the said Act no doubt provides, upon production of the certificate of sale issued in respect of that property under Section 15, entitle the Bank to obtain an order for delivery of possession of the property which was subjected to Parate Execution. It was held in Hatton National Bank PLC Vs Hikkaduwa Gamage Thejasiri Gunethilake28that in Act No. 4 of 1990 has not provided for a right of appeal against an order made by the District Court in terms of Section 16 of the said Act and Certificate of sale is conclusive proof in respect of that property and as regards its sale being duly complied with in terms of the Act. As such the certificate of sale cannot be challenged, if and when it is issued in terms of the said Act. Justice Anil Gonneratna further observed that:-29

“The law as contemplated in Act No. 4 of 1990, and as amended, need to be strictly interpreted. The words employed by the said statute cannot be given any extended meaning other than to achieve the purpose of the statute. As such as observed in this Judgment the intention of the legislature was to expedite debt recovery under a special jurisdiction exercised by the District Court.”

In Amaradasa Liyanage Vs Sampath Bank PLC30it was held that minor procedural irregularities can be readily rectified and that, given the nature of the inadequacy, it does not merit a declaration that the validity of the Certificate of Sale is undermined and a Certificate signed by the Board “shall be conclusive proof with respect to the sale of any property that all the provisions of this Act relating to the sale of that property have been complied with.

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In Haji Omar v Wickramasinghe and Another31where the Petitioner argued that the Certificate of Sale could not be issued as the notices were irregular and that the resolution passed by the Board was not in conformity with the Act. In this case, Fernando J stated that:-

“Section 15 (1) of the Act provides that upon the issue of the certificate the title of the borrower vests in the purchaser, and section 15 (2) makes the certificate “conclusive proof with respect to the sale . . . that all the provisions of [the] Act relating to the sale . . . have been complied with”. That includes the passing of the resolution, the notice of sale, the payment of the price, and the sale”

Whether the Court where the property is situated has jurisdiction to issue injunctions or stay orders in respect of Auction sale under Parate procedure?-

This issue was discussed in a reported judgment NATIONAL DEVELOPMENT BANK VS. RUPASINGHE AND OTHERS32whereas the learned District Judge in his order has come to a finding that as the property that was sold is situated within the jurisdiction of the District Court of Mawanella, the District Court of Mawanella had jurisdiction. It was held that the main dispute was not in respect of the ownership but was in respect of the bank’s decision to proceed with the parate execution. The culmination of the petitioner taking such steps was based on the resolution that was adopted in Colombo at the address of the bank in Colombo. Thus a cause of action if any would have accrued at the bank’s address in Colombo. In the circumstances the District Court of Mawanella had no jurisdiction to hear and determine this action and accordingly no interim injunction could be issued by the Court.

Conclusion

The ambit and purpose of the Recovery of Loans by Banks Act is, in essence, to recover monies due to the Bank while ensuring that the Bank does not enjoy an unjust enrichment. The provisions of the Act, by allowing parate execution, is to facilitate the process of collecting monies due, without lengthy court proceedings, and to do so in a fair and reasonable manner. Even though the courts have narrowed some limits of this procedure in many cases it was held that this objective should therefore not be hindered by minor procedural irregularities such as the absence of the signatures of all Board members on the Certificate of Sale, for such minor irregularities cannot have much impact on the rights of the borrower. Today it is ‘perhaps’ described as an extra judicial sale arising from an extra Judicial Order. However the legislature thought it fit to enact laws to facilitate and expedite debt recovery, as large sums of money due to Banks on loan facilities, remained unsettled. Sometimes people might


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file actions to stay an auction without any merits and to just trying to delay that recovery process. Therefore a Court has to be vigilant to ensure that the party is seeking the stay order with good faith and for good reason. If not the purpose of enacting these special legislations to expedite loan recovery for banks will be in futile.

Endnotes

1 By the Bank of Ceylon (Amendment) Law 10 of 1974, the Bank was empowered with the right of parate execution of mortgaged property to facilitate recovery of moneys in default in circumstances where loans/overdrafts are secured against the mortgage of property

2 Section 29a to 29r of the People’s Bank Act No. 29 of 1961 as amended by Act No. 32 of 1986

3 Long Title to the Act No. 04 of 1990

4 Section 22 of the said Act


6 Section 7[2] of the said Act



9 This will include all moneys expended by a bank, in accordance with the covenants contained in the mortgage bond executed by the person to whom the loan was granted, in the payment of premium and other charges in respect of any policy of insurance effected on the property mortgaged to such bank, and in the payment of all other costs and charge, authorized to be incurred by the bank, under the Covenants contained in such mortgage bond and executed by the borrower and the costs of advertising the sale and of selling of the mortgaged property








17 Section 16[3] & [4] of the said Act




21 SC Appeal 53/2017 decided on 28/11/2017

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22 Page 9 of SC Appeal 53/2017

23 Chelliah Ramachandran vs Hatton National Bank, Supreme Court Appeal Nos 5 and 9/2004 -S.C. Spl. Leave No. 32 & 33, decided on 1 April 2005

24 2007 [1] SLR 181

25 CA/Writ/Appl./No. 1268/1998 decided on 29/02/2008

26 C. A. 19/2005 D. C. Colombo 20533/L



29 Page 13 in SC Appeal 189/2012


31 2002 (1)SLR 113

32 2005 (3) SLR 92


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SEPARATING SHEPHERDS FROM BUTCHERS: GOING BEYOND THE TRADITIONAL ROLE OF THE DEMEANOR OF

WITNESSES WHEN ASSESSING THEIR CREDIBILITY AND RELIABILITY IN JUDICIAL REVIEW OF EVIDENCE IN BOTH

THE TRIAL AND APPEAL

Kushika KumarasiriSupernumerary Additional Magistrate of Colombo, LLB (Open University of Sri Lanka), LLM (General Sir John

Kotelawala Defense University of Sri Lanka), PGD (Forensic Medicine and Toxicology, Faculty of Medicine, University of Colombo, Sri Lanka), Attorney –at –Law (Sri Lanka Law College) and a Former State Counsel

(The Attorney General’s Department of Sri Lanka, 2008 – 2015).

Abstract

The human mind and its coordination with the human body thus are extraordinary creations of the Mother Nature, whose real selves are so elusive. It will hardly be mooted that the study of the human mind and its coordination with the human body can be so vast that it may never reach its depth. Hence one can never decide for doubtless certainty as to what the other thinks and especially whether the other is uttering the truth or not merely by observing the body language. During a litigation there can be any actors and actresses on the witness box in the guise of truthful witnesses regarding a particular issue giving conflicting evidence asserting that they are in the right.

As articulated by Justice O’Halloran in the Court of Appeal of British Colombia, with whom Justices Robertson and Bird concurred “the credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and

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successful experience in combining skillful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say “I believe him because I judge him to be telling the truth”, is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.”1

Nevertheless, the quest of this article is to go on an adventure into judicial and legal literature to see if it is possible to find that elusive truth on a balance of probability and beyond reasonable doubt and to see whether it is possible to discover the true nature of the words that comes out of the human mouth as portrayed on the human face as a production of manufacture of the human mind for the limited purpose of judicial review of evidence in both the trial and appeal.

Introduction

The beauty of the outcome of a judgement is that it is similar to an artistic creation. The Picasso of it is the Judge who sits on the elevated pedestal called the Bench and hears, tries and finally decides the case. The Witnesses who testifies at the trial adds the colours to the judgment through their sworn testimonies and depositions and documents during the trial and it is the duty of the Trial Judge to select the most appropriate colours or the evidence suitable to be added to make the scales of justice even and hence make the art, which is the judgment, meaningful thus beautiful.

As far back as the judicial system and the administration of justice goes Witnesses creates anarchy in the mind of the trial judge by trying their level best to be the best impressionists of the truth even when actually they know deep down in their subconscious minds that they are telling a lie to create the best impression in the mind of the trial judge as to the truth of what they are telling. This is the bitter truth of the human nature. Nobody wants to be branded as liars and every cause is just.

However, as the witnesses cannot possibly have a photographic memory of the incident they had witnessed it will not be possible too for a Judge to have photographic memory of the demeanor of a witness unless the Judge records it. Even if a Judge records his observations as to the demeanor of the witness can it never be argued that his observations are accurate? Is the human face a mirror image of the human soul? For like the Witnesses the Judges too possess different powers of observation and in the absence of expert research to guide the Judge as to how to interpret a certain bodily language of the witness to determine the witness to be lying about one aspect and telling the truth about the other there is always a doubt as to the findings of the trial judge based on demeanor.


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However is there really such a turmoil as we fear which lets the untruthful witness hide his or her untruth inside the robes of our Lady of Justice holding the scales?

In 2006 Stephen Porter2 was scheduled to give a speech at a Canadian Judicial Education Conference about deception detection. Prior to his speech he gave a questionnaire to the 20 Judges who participated at the conference and requested them to write down their answers relating as to how each of them assess the credibility of their witnesses in the court room. The Judges were also requested to indicate in the questionnaire “their beliefs about verbal.., vocal…, and non –verbal behaviours as they might relate to deception.” Porter was able to discover from the answers given that the 20 Judges were “highly variable” and that there were no uniformity or consensus as to how they deduce the deceptive behavior of a witness. Porter finally concludes from that impromptu research that “Judges hold no consistent strategies for assessing credibility and exhibit individual biases that must influence their perceptions of specific individuals.”

It has been emphasized by Judge Freedman that “Demeanor is of the utmost importance in the determination of the credibility of a witness. The innumerable telltale indicators which fall from a witness during the course of his examination are often much more of an indication to judge or jury of his credibility and the reliability of his evidence than is the literal meaning of his words….” observation of the demeanor of the witness confers on the fact finder [a superior advantage]” in ascertaining the truth at trial. The assumption that “telltale indicators” will be displayed by a perjurious witness reflects the oft-quoted, nearly three-thousand year old description of a liar: “He does not answer questions, or they are evasive answers; he speaks nonsense, rubs the great toe along the ground, and shivers; his face is discolored; he rubs the roots of the hair with his fingers.”3

And it has been decided that “Many people possess the trait of being loose tongued or willing to say something behind a person’s back that they dare not or cannot truthfully say to his face or under oath in a courtroom. It was probably for this reason... that [the right of confrontation] was given to every person accused of crime.”4

With all due respect to the above contentions, this is the carte blanche fallacious belief as will be evident in the succeeding discussion. For Human experiences and exposures differ from one to the other which makes their perspective about people differ too hence unless one is a psychology, a psychiatry or anthropology guru it is an uphill task to discover the true meaning of a Witness’s demeanor.

Judges try to venture into these unknown waters to find that missing pearl. But do they actually find it? Or do they just get lost in the watery labyrinth? Let’s find out.

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Judicial Stereotyping of Witness Credibility and Reliability

Stephen Porter and Leanne ten Brinke5 argues with what they call the ‘Dangerous Decisions Test Theory’ that Judges initially decides the trustworthiness of the witness based on intuition. The Judges are highly motivated as to the correctness of their initial judgment as to the trustworthiness of the witness based on the assimilation of evidence which can be subject to variation. For example the intuition can be over - valued by supporting evidence and under - valued by contradictory or ambiguous evidence and finally based on the over – value and the under – value placed on the evidence the Judge places high confidence in his initial assessment.

Nevertheless it is the author’s view that the fact finder or the judge must be cautious in placing high reliance on the demeanor or the nonverbal behavior in deciding the credibility and the reliability of a witness. The fact finder or the judge must not jealousy guard his/her ability to see through a lying witness for expert and experienced liars are not always transparent through demeanor and may easily fool the fact finder or the judge into thinking that his/her testimony is the truth. The fact finder or the judge must always be aware that demeanor can be deceptive and when deciding on the credibility and the reliability of a witness standing on this premise and it is prudent for the fact finder or the judge to be open minded and rational and every decision on credibility and reliability must be based on reason and justification.

What is meant by the Credibility, Reliability and the Demeanor of a Witness?

Credibility may be defined as “the quality or power of inspiring belief.”6 Credibility “involves more than demeanor. It apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence.”7

According to Black’s Law Dictionary “demeanor” means “As respects a witness or other person, relates to physical appearance. People v. Vaughan, 131 Cal. App. 265, 21 P.2d 438. It embraces such facts as the tone of voice in which a witness’ statement is made, the hesitation or readiness with which his answers are given, the look of the witness, his carriage, his evidences of surprise, his gestures, his zeal, his bearing, his expression, his yawns, the use of his eyes, his furtive or meaning glances, or his shrugs, the pitch of his voice, his self-possession or embarrassment, his air of candor or seeming levity. Rains v. Rains, 17 N.J. Misc. 310, 8 A.2d 715, 717.”8

Another definition of “demeanor” is that “Demeanor evidence refers to the non-verbal cues given by a witness while testifying, including voice tone, facial expressions, body language, and other cues such as the manner of testifying, and


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the witnesses’ attitude while testifying.”9 The word “reliable” had been defined in the Black’s Law Dictionary 10 to mean “Trustworthy, worthy of confidence. Quinn v. Daly, 300 Ill. 273, 133 N.E. 290, 291.”

In R. v. Morrissey11 it has been held that “credibility is not synonymous with ‘reliability’: ‘When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony. Obviously, a witness whose evidence on a point is not credible cannot give reliable evidence on that point.”

Is the Demeanor of a Witness in the Trial Court important in determining Witness Credibility and Reliability?

It has been opined that the popular legal premise is that the demeanor of a witness is of great value to the trier of fact12 and it is equally important to view the demeanor of a witness to give accurate judgment as to the credibility of a witness and such judgments where the trier of facts have been given the opportunity to view the demeanor of a witness is more correct than that of the trier who had not witnessed it13. And contrarily it has also been opined that an honest witness may innocently convey an inaccurate account of an incident because of a mistaken perception or error of memory.14

It has been stated that “all of us know that, in everyday life, the way a man behaves when he tells a story – his intonations, his fidgeting or composure, his yawns, the use of his eyes, his air of candor or of evasiveness – may furnish valuable clues to his reliability. Such clues are by no means impeccable guides, but they are often immensely helpful. So the courts have concluded.”15

It has been articulated by Blumenthal that “No opinion, however, suggests that demeanor is a guide to the actual truth of a witness’s testimony, that ideal goal of trial, but to the weight that should be accorded to that testimony. This theoretical leap from measuring the reliability of a witness, as judged by his demeanor, to a measure of the underlying truth of the testimony is the underpinning of the very concept of demeanor evidence. Triers of fact subscribe to an extreme version offalsus in uno, falsus in omnibus when they make judgments of perjury or deception on the basis of a witness’s gaze, his “nervous” smile or his shifting posture.” Furthermore he states that “In other words, a wipe of the hand, a lick of the lips, or a stammer in a witness’s speech will yield a judgment of deception far more often than a deception on the part of that witness actually occurs.” It is the view of Blumenthal that “a defendant who gives testimony in a calm, straightforward manner, could be perceived by the presiding judge as calculated, unrepentant, impertinent, and brazen in the defendant’s

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disregard for the process of justice. This composure, however, could as easily be due to repetitious practicing of testimony with counsel.”16

However, it has been held by U.S. Circuit Judge Learned Hand that “It is true that the carriage, behavior, bearing, manner and appearance of a witness — in short, his “demeanor” — is a part of the evidence. The words used are by no means all that we rely on in making up our minds about the truth of a question that arises in our ordinary affairs, and it is abundantly settled that a jury is as little confined to them as we are. They may, and indeed they should, take into consideration the whole nexus of sense impressions which they get from a witness. This we have again and again declared, and have rested our affirmance of findings of fact of a judge, or of a jury, on the hypothesis that this part of the evidence may have turned the scale. Moreover, such evidence may satisfy the tribunal, not only that the witness’ testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies.”17

However Circuit Judge Frank in the same judgment points out the danger in basing a decision of a judge solely on demeanor evidence and also how to overcome it. According to Circuit Judge Frank “I agree with Judge HAND that (at least in some cases) a trial judge should be allowed to find that a plaintiff has discharged his burden of proof when the judge disbelieves oral testimony all of which is adverse to plaintiff, solely because of the trial court’s reaction to the witnesses’ demeanor and there is no evidence for plaintiff except that “demeanor evidence.” But I think it most unfortunate to hold that this rule applies in judge trials and not in jury trials. Such a distinction should be avoided if possible. But I read Judge HAND’S opinion as saying it is unavoidable for the following reason: If, in a jury trial, the jury, solely on the basis of its evaluation of credibility as affected by the jury’s reaction to a witness’ demeanor, were allowed to bring in a plaintiff ’s verdict, then necessarily (says Judge HAND) the judge in that same trial could also properly take into account demeanor in passing on the defendant’s motion for a directed verdict; but, were that true, the judge’s action on the motion could never be reviewed, as demeanor cannot appear in the printed record on appeal. I cannot accept that distinction for the following reasons: Judge HAND argues from the alleged unreviewability of a directed verdict in a case like this, if demeanor were a factor. But this argument cuts too far. For, if Judge HAND is correct, the same difficulty will attend the review of any directed verdict in any case where any important evidence consists of oral testimony. In any such case, one could say, as Judge HAND says here: If the jury (should the case go to the jury) could rely on


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“demeanor evidence,” then necessarily the trial judge could do likewise, on a motion for a directed verdict; and, if he could, no directed verdict would be reviewable when important testimony is oral. But this is exactly not the rule in the federal courts: The well-settled rule is that, in passing on a motion for a directed verdict, the trial judge always must utterly disregard his own views of witnesses’ credibility, and therefore of their demeanor; that he believes or disbelieves some of the testimony is irrelevant. When asked to direct a verdict for the defendant, the judge must assume that, if he lets the case go to the jury, the jurymen will believe all evidence — including “demeanor evidence” — favorable to the plaintiff. In other words, the judge must not deprive plaintiff of any advantage that plaintiff might derive from having the jury pass upon the oral testimony. 18

It has also been stated that the demeanor or the appearance and nonverbal behaviour of a witness is important in two ways – firstly it indicates whether the witness is sincere or not and secondly the quality of his perceptions and memory. All in all it means the willingness of a witness to tell the truth and his capacity to tell the truth.19

It has also been said that “general advice is useful in ensuring a relaxed witness who will testify clearly and who will not be sidetracked or flustered by a cross examiner. Such general advice is also relatively innocuous in terms of distorting testimony, because it is non - substantive. In some situations, however, calming and relaxing a witness tends to induce an unwarranted degree of certainty in the witness’s testimony. Such preparation may unwittingly turn a skeptical witness into a true believer.20

It has been concluded that in determining the validity of a testimony of a witness, the witness’s appearance and nonverbal behavior may be subject to deception and the trier of facts must be able to appraise the accuracy of a witness’s beliefs, perception and the memory as well as honesty to decide on his or her sincerity.21

It has been noted that “in spite of the confidence that the average person has in his or her ability to detect liars by their nonverbal behaviours, there is little justification in research literature to support such beliefs. If untrained observers, such as the ordinary juror, make decisions about the truth of a witness’s statement solely on the basis of his stuttering or eye contact etc., their accuracy of judgments will probably be no better than chance.”22

In the case Coy Vs Iowa23 the Appellant was accused of sexually assaulting 13yrs old girls. At the trial the evidence of the victims were led by placing a screen between the Appellant and the victims. The Appellant was convicted of “lascivious acts with a child”. The Appellant appealed to the Iowa Supreme Court stating that

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he was denied of the right “to be confronted with the witness against him” which is a right he is constitutionally entitled to under the Confrontation Clause in the 6th Amendment to the US Constitution. The Iowa Supreme Court rejected this contention. The Appellant appealed against this decision to the US Supreme Court and it was held by the US Supreme Court that “the Confrontation Clause by its words provides a criminal defendant the right to “confront” face to face the witness giving evidence against him at the trial. The core guarantee serves the general perception that confrontation is essential to fairness, and helps to ensure the integrity of the fact finding process by making it more difficult for witnesses to lie.” Hence the Appellant’s right to face to face confrontation was violated by the court by placing a screen between him and the witnesses.

It has also been held in the cases of Kentucky Vs Stincer 24 and Mattox Vs United States25 that “the primary object of the [Confrontation Clause] was to prevent depositions or ex parte affidavits…. being used against the prisoner in lieu of personal examination and cross examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”

It has also been held in the case of Broadcast Music Inc. Vs Havana Madrid Restaurant Corp26., that “….the demeanor of an orally – testifying witness is always assumed to be in evidence. It is wordless language. The liar’s story may seem uncontradicted to one who merely reads it, yet it may be contradicted in the trial court by his manner, his intonations, his grimaces, his gestures and like – all matters which cold print does not preserve and which constitute lost evidence so far as upper court is concerned. For such a court, it has been said, even if it were called a rehearing court is not a seeing court only were we to have talking movies of trials could it be otherwise. A stenographic transcript correct in every detail fails to produce tones of voice and hesitations of speech and often makes a sentence mean reverse of what the words signify. The best and most accurate record is like a dehydrated peach, it has neither the substance nor the flavor of the fruit before it was dried. It resembles a passed flower. The witness’ demeanor, not apparent in the record, may alone have impeached him.”

Hence there is a conflict of views as to the importance that should be placed upon the demeanor of witness for some doubt whether the demeanor correctly reflects the honesty of the witness if he/she had been coached to hide the truth.


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Nevertheless, in the cases of Southall Vs General Medical Council27 and Vasanta Marni Suddock Vs the Nursing and Midwifery Council28 it has been held by the English Courts the following criteria to be guidelines in evaluating the credibility of witnesses in the appellate forum;

(i) “Findings of fact, particularly if founded on an assessment of the credibility of witnesses, are virtually unassailable. The Court must be satisfied that they are plainly wrong before it will interfere;

(ii) The Court should only reverse a finding on the facts if it can be shown that it was sufficiently out of tone with the evidence to indicate with reasonable certainty that the evidence had been misread;

(iii) Where issues of credibility and reliability are key to the decision under challenge, the first instance body has the considerable advantage of seeing and hearing the witnesses, and therefore it is in a better position than the appellate body to judge their credibility and reliability. Its decision on such matters is more likely to be correct than any decision of a court which does not have that advantage. Given that the advantage is very significant, the appellate court should be slow to interfere with findings on credibility or reliability.”

In the case of American Tobacco Co. v. The Katingo Hadjipatera29, it has been decided as follows; “We accept, as we must, those of the trial judge’s inferences of fact which he drew directly from his estimates of the credibility of witnesses whom he observed as they testified in his presence, i.e., his inferences (sometimes called ‘testimonial inferences’) that certain facts existed because he believed some witness or witnesses who testified before him that those facts did exist. We are not required, however, to accept a trial judge’s findings, based not on facts to which a witness testified orally, but only on secondary or derivative inferences from the facts which the trial judge directly inferred from such testimony. We may disregard such a finding of facts thus derivatively inferred, if other rational derivative inferences are open. And we must disregard such a finding when the derivative inference either is not rational or has but a flimsy foundation in the testimony.”

In NLRB Vs Dinion Coil Co30, it has been explained that there are no rules to follow but those of experience: “Methods of evaluating the credibility of oral testimony do not lend themselves to formulations in terms of rules and are thus, inescapably, ‘un-ruly.’ In his brilliant discussion of evidence, Sir James Stephen illuminated the difficult task of a trial judge who, observing a witness in the brief period when the witness appears in court, tries to ascertain how far the witness’ ‘powers of observation and memory enable him to tell the truth’ and ‘how far the innumerable motives, by anyone of which he may be activated, dispose him’ to do so.

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‘No rules of evidence can perceptibly affect this difficulty,’ Stephen remarked. ‘Judges (i.e., trial judges) must deal with it as well as they can by the use of their natural faculties and acquired experience, and the miscarriages of justice in which they will be involved by reason of it must be set down to the imperfection of our means of arriving at truth. Insofar as [this power of discernment] can be acquired at all, it is to be acquired only by experience, for the acquisition of which the position of a judge is by no means peculiarly favourable. Such observations are seldom, if ever thrown by those who make them into the form of express propositions. Indeed, for obvious reasons, it would be impossible to do so. The most acute observer would never be able to catalogue the tones of voice, the passing shades of expression or the unconscious gestures which he had learnt to associate with falsehood; and if he did, his observations would probably be of little use to others. Every man must learn matters of this sort of himself, and though no sort of knowledge is so important to a judge, no rules can be laid down for its acquisition. No process is gone through, the correctness of which can be independently tested. The judge has nothing to trust but his own nature and acquired sagacity.’ Sir Henry Maine agreed with Stephen. He said that there are no ‘rules to guide’ a “judge of the Fact’ in ‘drawing inferences from the assertion of a witness to the existence of the facts asserted by him.’ [I]t is the rarest and highest personal accomplishment of a judge to make allowance for the ignorance and timidity of witnesses, and to see through the confident and plausible liar. This lack of rules (‘unruliness’), with its concomitant wide discretion in the fact-trier, yields inherent difficulties not surmountable by a reviewing court, regardless of whether the fact-trier by a judge, a jury, or a trial examiner.”

In an adversarial system of administration of justice Pennington and Hastie31

argues in their ‘Story Model Theory’ that “decision makers construct ‘stories’ of the events in question based on information provided by the prosecution and defense that may or may not accord with factual reality. These stories are then assessed in terms of their coherence and how well they accommodate all of the presented evidence to determine the degree of the validity of the narrative.”

Wagenaar, Van Koppen, and Crombag’s32 ‘Anchored Narratives Model’ is similar to the ‘Story Model’ of Pennington and Hastie’s, ‘Story Model’, but it emphasizes that “generated stories must be anchored by common sense generalizations about the world.”

Nevertheless it was emphasized by De Paulo that “The psychological literature explicitly sums up the problem with the legal schema: Sometimes the cues that [people] should be using ... are cues that they do not even notice. Other cues that might potentially be quite informative may be noticed, but regarded as insignificant


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and therefore ignored, or-worse, yet used in exactly the wrong ways.... This less-than-perfect correspondence between cues that really are indicative of deception (actual cues) and cues that are believed to be indicative of deception (perceived cues) has important implications.... If a completely innocent truth teller happens to engage in behaviors that others perceive as signs of deception ... that person risks being labeled a liar. Both for liars ... and for truth tellers... it is more important to know about the cues that people interpret as signs of deceptiveness and truth than it is to know about the cues that really are signs of deceit…. The studies showed that some of our favorite cultural stereotypes about liars do not withstand the test provided by the existing empirical data.... [T]he studies that have been conducted so far do not support the notion that liars have shifty eyes-nor even shifty bodies; neither glances nor shifts in posture occur significantly more often when people are lying compared to when they are telling the truth.”33

Hence it can be argued that the demeanor of a witness plays not such a pivotal role as we imagine in assessing the credibility and the reliability of evidence given by a witness.

Difficulties encountered in Assessing the Demeanor of a Witness in the Trial Court in determining Witness Credibility and Reliability and how to Overcome such Difficulties

In 1938 the British Prime Minister Neville Chamberlain made a statement to the general public stating that “I got the impression that here was a man who could be relied upon when he had given his word.” This statement was made by the British premier following a meeting with Adolf Hitler who had sworn to Chamberlain that he will never invade Czechoslovakia.34 History itself is evidence to the fact that Chamberlain was completely deceived by the Hitler’s duplicity when he had made this public statement.

It has been stated that society at large are not very good at recognizing or detecting deception when judging whether someone is telling the truth about a particular incident or not. Since judges too are members of this society they too can also be victims of deceptive con men and brilliant actors on the witness box in any litigation.35

It is believed that “finding facts is not based on technique, or, indeed, upon precepts or principles of any kind; it is based on a judge’s essentially personal and human qualities of judgment of character, temperament, and reliability, of wisdom, of sympathy and understanding, combined with hard work and concentrated thought – in short, on the faculties, qualities, skills, and experience, that make a juror a good juror…”36

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There are many difficulties confronted by a trial judge when assessing whether a particular witness is telling the truth or not especially when there are conflicting evidence such as conflicting evidence as to the occurring of a certain incident. It is an accepted norm in appeal that it is the trial judge who is best able to judge whether a witness is telling the truth or not since he/she had the opportunity to see the demeanor of the witness when giving evidence. But can the trial judge decide who is telling the truth and who is lying by merely observing the demeanor of the witnesses who gives evidence before him?

It has been stated by Jerome Frank that the unavoidable task of a trial judge is that “[W]henever there is a question of the credibility of witnesses — of the believability, the reliability, of their testimony — then, unavoidably the trial judge or jury must make a guess about the facts.”37

It has been opined that trial judges generally consider the following factors in assessing the credibility of a witness. They are namely:

• “Honesty: Is the witness making a good faith effort to fully and accurately give evidence, or conversely, is the witness deliberately lying or at least not disclosing certain information?

• Memory: How accurate and complete is the memory of the witness?

• Suggestibility: Has the memory of the witness been distorted as a result of conversations or questions with others?

• Communication Ability: How well does the witness understand the questions and how well is the witness able to communicate about the matters at issue?”38

Jerome Frank is of the view that a witness may give an inaccurate account of a particular incident for the following reasons; “1. He may have erred in his original observations of the past event. 2. Or in his subsequent memory of what he observed. 3. Or in the way his memory of his original observation is communicated to the trial court.”39

Frank goes on to state that the experiments conducted by psychologists and psychiatrists as to what causes and what are the reasons for “errors in perception, memory and communication” have been conducted within laboratories and not within court room conditions and hence the findings are not “court wise.”40

Jerome Frank believes that it is “ridiculous” to “expect an ordinary man, unfamiliar with court room ways, to give accurate testimony when hampered by the exclusive use of the question – and – answer method, especially when this is accompanied by brow – beating in cross examination.”41


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In the Equal Treatment Bench Book of the Supreme Court of Queensland42 it has been stated that “It may be necessary to receive expert evidence in this regard. The areas of potential misunderstanding are likely to include, politeness, body language, power dynamics, metalinguistic factors such as pitch, volume and silence.”

In questioning the unreliability of the demeanor of a witness it is stated by Justice McKenna as follows;

“I question whether the respect given to findings of fact based on the demeanor of the witness is always deserved. I doubt my own ability and sometimes that of other Judges to discern from a witness’ demeanor or the tone of his voice whether he is telling the truth. He speaks hesitantly. Is that the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help.”43

In reply to the above statement Justice McKenna also reveals as to how he assess facts when he exercises his judicial mind in a litigation as follows;

“This is how I go about the business of finding facts. I start from the undisputed facts which both sides accept. I add to them such other facts as seem very likely to be true, as for example, those recorded in contemporary documents or spoken to by independent witnesses like the policeman giving evidence in a running down case about the marks on the road. I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points. I rely as little as possible on such deceptive matters as his demeanor. When I have done my best to separate the true from the false by these more or less objective tests, I say which story seems to be the more probable, the plaintiff ’s or the defendant’s?”44

Justice Wells also speaks of how he too assess the credibility and reliability of a witness who gives evidence before him in a litigation as follows;

“One reaches conclusions about individual witnesses by considering them as persons and by drawing conclusions about them from the substance of their testimony. I suppose the most subjective function a Judge is called on to perform is to assess the personal worth of a witness; we must assess whether he is frank and honest, whether he can be relied on to report accurately and comprehensively what he has been asked to recall. It would not be possible short of writing a full scale thesis to examine all the various forms of expression or demeanor or circumstance which leads us to reach conclusions about the credibility of a witness. We each, I am sure,

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have our own highly personal reasons for accepting or rejecting a witness; all we can be sure of is that those reasons will vary from person to person, and from case to case. I have found somewhat to my surprise that it is only comparatively rarely that the credibility of a single witness determines the outcome of an entire case. So often the overwhelmingly clear structure of the facts taken as a whole will, disengaged from the testimony of the particular witness under evaluation, provide a setting in which the value of the witness’ testimony may be readily fixed. It is for that reason it is so important by the preparation of a chronological table and a recapitulation of facts not in dispute to build a broad picture of events or causes of conduct under inquiry so that every piece of evidence in the case can be reviewed in context and not in the void.”45

It has been noted by the American Judge Davidson that “[I]n most cases, I would start by looking at the undisputed facts and what has been established by documents .... I generally regard a witness’ interest or lack of interest in the outcome of the case as important and employee witnesses who have no interest in the outcome, but testify against their employer’s interests, often get a point up from me for that. I look at inconsistencies next and try to weigh their importance and to determine what may be due to poor recollection or perception and what may not. In this regard, I find the old maxim “false in one, false in all” generally unappealing. If I become convinced that a witness has lied deliberately, I am inclined to discredit that witness in all respects except where corroborated. But if I am convinced that I can’t credit a portion of the witness’ testimony because of poor recollection or perception, I may credit that witness’ testimony in other important respects. Very often I conclude that the facts lie somewhere between the individual recollections of each of the witnesses. Corroboration, particularly by document, by an opposing witness, or by disinterested witnesses, gets substantial weight. I put demeanor low on my list. In most cases I don’t find it helpful. So much of what we observe is ambiguous in significance.... [B]ehaviours which can indicate lying can also indicate powerlessness, nervousness, etc. But... [Changes in demeanor, while the witness is on the stand, mean more to me than consistent behavior. If a confident witness loses his poise when confronted with what appears to be a document he had forgotten about and cannot explain, that change in demeanor will impress me. But even then, the change in demeanor rarely stands alone. It is usually accompanied by evasiveness, defensiveness, excessive rationalization, all of which appear on the face of the record and give an independent basis for resolving credibility.” 46


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Dangers of Deciding the Credibility and Reliability of a Witness solely on Demeanor

According to Hazel Genn 47 in her “Assessing Credibility”, within the anatomy of a lie it seems that there are “two primary ways to lie:

1 To conceal – withholding information without actually saying anything that is untrue.

2 To falsify – presenting false information as if it were true.”

Genn is of the view quoting Ekman’s argument 48 that “it is hardest to detect a lie in the following circumstances:

• When the liar and the recipient have never met before. It is harder for the recipient to avoid making mistakes about individual quirks of behaviour.

• When the liar can anticipate when he has to lie. In these situations the lies can be prepared and rehearsed so that the liar presents a seamless and internally consistent story. Repeated preparation of evidence increases confidence and decreases fear of being detected.

• When the lie only involves concealment. This is generally harder to detect than falsification because nothing has to be said and emotion about concealment may be less.

• When the liar and the recipient come from different cultures or backgrounds. The recipient will make more errors in judging clues to deceit.

• When the recipient is impersonal or anonymous. This decreases the deception guilt felt by the liar who will therefore display fewer signs of emotion around the lie.

• When the liar and recipient do not share the same values. The liar will feel less guilt about lying and therefore reduced emotion surrounding the lie.

• When there is no severe punishment for being caught lying. Apprehension detection will be low, although there is the possibility of carelessness.”

If no trier or finder of facts can correctly judge whether a witness to a particular incident is telling the truth or not solely on demeanor, there is danger in coming to a judgement based on the mere demeanor of a witness such as his/her appearance and non - verbal behavior inside a court room. An example of such an error of judgment is possible can be illustrated by the following incident which was experienced by the Hon. Justice Peter McClellan when he heard and reviewed evidence given at the Royal Commission into British Nuclear Tests in Australia.

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One day in a hot afternoon during the proceedings a gentleman dressed in a Hawaiian shirt and a pair of shorts and also wearing a pair of very dark sunglasses, which he had never taken off when giving evidence too, had appeared before the Commission in Brisbane to give evidence with regard to the British nuclear operations conducted in Australia. Oddly enough this gentleman had been carrying a plastic bag with a certain number of rocks inside it and he had given his evidence in a “soft and stumbling” voice and his demeanor was observed by Justice McClellan as follows;

“His delivery was emotional and at times confused. He certainly did not look me or Justice Jim McClelland in the eye.”

When this gentleman gave evidence it must be noted that the court room was crowded with people, “a media contingent comprising of journalists from Australia and the United Kingdom” were watching and recording the proceedings.

This witness had told the Commission, in the manner, as observed above, that he was a truck driver employed by the army and he was ordered by his superior officer to load his truck with atom bombs and to drive to a coordinated location in the Maralinga desert and there he was told to wait until the arrival of a bulldozer which will dig a hole for him in the desert for him to unload his bombs into. Then he was ordered to light a match and set the bombs alight. He was ordered to wait till all the bombs were burnt and thereafter to bury the remains. He had gone to the coordinated spot on the Maralinga desert as ordered and a bulldozer had arrived and had dug a hole for him in the desert and he had unloaded the bombs into the hole and had set the bombs on fire but the bombs had not ignited. Therefore he had gone to the base camp and had informed his commander that the bombs were not burnt as ordered. Then the commander had asked him as to whether he had taken any water to which the witness had answered in the negative. Thereafter the commander had instructed the witness to go around to the back of a shed in the camp and to get some beer bottles and to fill them with water and to return to the hole into which he had unloaded the bombs and to throw the water bottles at the bombs and the bombs will ignite and thereafter to bury the remains as ordered. The witness had done as directed and was able to set the bombs on fire and bury the remains.

No one had taken this evidence seriously and the witness was laughed at when he had finished giving his evidence.

Justice McClellan later expressed his surprise as to the outcome of this witness’s evidence as follows;

“To my amazement six months later the research staff came to tell me that they had found records which confirmed the soldier’s story. He had been posted to Woomera and not Maralinga. At Woomera they


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had been carrying out a major testing program on the casing design for atomic and later hydrogen bombs. There were many designs which had been mocked up in magnesium. In fact he had been sent to destroy casings which were being discarded and which the British wanted to keep secret from the Russians. The “beer bottles”? The casings were made of magnesium which will react with water and ignite. He had been telling the truth.”49

This is a true account of an incident faced by a finder of facts as to how he was almost misled by the demeanor of a witness as to the truth of what he had experienced. Hence demeanor can be deceptive.

Justice McClellan is of the view that there are two “levels” of truth. He refers to them as the “real” truth and the “perceived” truth. He defines the “real” truth to mean what has really happened and explains the “perceived” truth to mean what has been observed by the witnesses as to what has actually happened. Justice McClellan says that perceived truth can come out in many forms such as through mediums like the print and electronic media, personal exchanges between people regarding the occurring of the incident which can be hearsay accounts, and expert views expressed by witnesses who have expertly analysed the incident or its problem.50

It has been accepted by the legal community that an experienced trier of facts can discern whether a witness is telling the truth or not based on the observations of his demeanor during trial especially when giving evidence at the cross examination. However psychologists holds a different belief. They are of the view that a truthful witness may hide the truth in internal contradictions in their evidence due to stress imposed upon them by a “hostile advocate” and also as a result of resentment at a lengthy tedious litigation process where the truth is a “commonly a casualty in the litigation process.”51

There is a popular saying that actions speak louder than words. But is it always so? It has been concluded by Ekman that “most liars can fool most people most of the time.”52 And also it is said that that there is no “universal cue that enable us to tell when a person is lying.”53 Hence is it that demeanor will only “reveal incompetent liars?”54

This is another example of the dangers of judging on demeanor. In the case of Coombe Vs Bessell55, the magistrate had decided the credibility of the appellant as a witness who had given evidence before him placing a “principal importance” on his demeanor. It was held by the particular magistrate as follows;

“Demeanor was quite noticeably different when describing matters that were more in the nature of being common ground – rather than

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in contention and then he appeared, I think, to be describing them from true recollection. He was a very uneasy witness – a tremor noticeable in his voice – throughout the giving of much of his evidence – as one example of why I thought he was an uneasy witness and that characteristics was particularly notable during the parts of his evidence that tended to be controversial. He dwelt, at times, in his evidence, on how things might have been if Mrs. Coombe had been reasonable – and that betrayed, I think, a very defensive aspect – to his evidence.” The Appellant was convicted in the Magistrate Court.

In the appeal the Appellate Court upheld the appeal and overturned the decision of the magistrate when it was revealed by the appellant’s counsel that a speech impediment of which the appellant had been suffering at the time of his trial had resulted in his “odd demeanor” which was not “disclosed to the magistrate or to the applicant’s solicitor because the applicant did not think it was relevant.”

Instances like the evidence given at the Royal Commission into British Nuclear Tests in Australia as mentioned above and now the latest Coombe trial, it seems that demeanor evidence must be relied upon by a trial judge when deciding the credibility of a witness as a last resort and even that with utmost caution for if not the final result could be tragic.

Is the Human Mind Infallible and Fool Proof?

Human mind cannot play an incident stored in its memory like a video tape recorder. The Australian Psychological Society says that “Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time encoding, during the period of storage, and during any attempts at retrieval.”56

It has been held in the case of Longman Vs The Queen57 that “The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to ‘remember’ is well documented. The longer the period between an ‘event’ and its recall, the greater the margin for error. Interference with a person’s ability to ‘remember’ may also arise from talking or reading about or experiencing other events of a similar nature or from the person’s own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine.”


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Is the Shifty and Shrugging Witness telling the Truth? When and How to decide the Credibility and Reliability of a Witness

It has been held in the case of Kinloch Vs Young58 that “one thing is clear, not so much as a rule of law but rather as a working rule of common sense. A trial Judge has, except on rare occasions, a very great advantage over an appellate Court; evidence of a witness heard and seen has a very great advantage over a transcript of that evidence; and a Court of Appeal should never interfere unless it is satisfied both that the judgment ought not to stand and that the divergence of view between the trial Judge and the Court of Appeal has not been occasioned by any demeanor of the witnesses or truer atmosphere of the trial (which may have eluded an appellate Court) or by any other of those advantages which the trial Judge possesses.”

This is the traditional view of the appellate courts when deciding on the credibility and reliability of the evidence presented by witnesses before the courts of law. The appellate courts are ordinarily reluctant to interfere with the findings of the trial judge when it comes to the credibility and the reliability of witnesses based on the premise that it is the trial judge who had the golden opportunity to witness the demeanor of the witness and hence he/she is the best judge to decide whether the particular witness is telling the truth or not.

However, just because the witness is shifting and shrugging on the witness box and not looking at the Judge straight in the eye does it always mean that he/she is a liar?

It must be noted that not all persons are familiar with the atmosphere of a court room. The court room could be packed with people and the media, the defense counsels could be hostile and the Judge could be shouting from the Bench or glaring at his audience. Is such an atmosphere friendly towards the witness who had come to courts for the first time to give evidence regarding a traumatic experience he/she had witnessed or experienced? Definitely not.

A lengthy cross examination of a defense counsel which drags on for hours and hours and complicated questions put to the witness could confuse even an honest witness compelling him/her to shift and shrug in the witness box as a result of the hostile environment created by the court itself. This is a very practical situation that any witness may possibly face when giving evidence especially for the first time unless such a witness had been trained to expect such a possibility.

Professor Olin Wellborn comments that “taken as a whole, the experimental evidence indicated that ordinary observers do not benefit from the opportunity to observe nonverbal behavior in judging whether someone is lying. There is no evidence that facial behavior is of any benefit; some evidence suggests that observation of

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facial behavior diminishes the reliability of lie detection. Nor do paralinguistic cues appear to be of value; subjects who receive transcript consistently perform as well as or better than subjects who receive recordings of the respondent’s voice. With respect to body cues, there is no persuasive evidence to support the hypothesis that lying is accompanied by distinctive body behavior that others can discern.” 59

So far this view had not been questioned by any subsequent scientific experiments or research as far as the author’s knowledge goes at the time of writing this article.

Gleeson CJ once stated that “reasons for judgment which are replete with pointed references to the great advantage which the trial judge has had in making the personal acquaintance of the witnesses seem nowadays to be treated by appellate courts with a healthy measure of skepticism. What might be called the Pinocchio theory, according to which dishonesty on the part of a witness manifests itself in a manner that does not appear on the record but is readily discernible by anyone physically present, seems to be losing popularity.” 60

Once Brown LJ confessed that “so the main job of the judge of first instance is to decide the facts. How does he do it? When there is a conflict of evidence between witnesses, some judges believe that they can tell whether a witness is telling the truth by looking at him and listening to him. I seldom believed that…..”61

In the cases of Onassis Vs Vergottis62 and David Piper Vs Mark Hales63 it has been held that “credibility involves wider problems than mere demeanor which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or an untruthful person? Secondly, is he though a truthful person telling something less than the truth on this issue, or though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so has his memory correctly retained them? Also has his recollection been subsequently altered by unconscious bias or wishful thinking or by over much discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it


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so probable that it is on a balance more likely that he was mistaken? On this point it is essential that the balance of probability is put into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”

And in the same decision of Onassis Vs Vergottis64 it has been further held that “every judge is familiar with cases in which the conflict between accounts of different witnesses is so gross as to be inexplicable save on the basis that one or more of the witnesses are deliberately giving evidence which they know to be untrue… more often dishonest evidence is likely to be prompted by the hope of gain, the desire to avert blame or criticism, or misplaced loyalty to one or other of the parties. The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case:

1. The consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;

2. The internal consistency of the witness’s evidence;

3. Consistency with what the witness has said or deposed on other occasions;

4. The credit of the witness in relation to matter not germane to litigation;

5. The demeanor of the witness.

The first three of these tests may in general be regarded as giving a useful pointer to where the truth lies. If a witness’s evidence conflicts with what is clearly shown to have occurred, or is internally self – contradictory, or conflicts with what the witness has previously said, it may usually be regarded as suspect. It may be unreliable, and not dishonest, but the nature of the case may effectively rule out that possibility. The fourth test is perhaps more arguable….”

In the cases of Wetton (as Liquidator of Mumtaz Properties) Vs Ahmed and Others 65 and Excelerate Technology Ltd Vs Cumberbatch and Another66 it has been held that “there are many situations in which the court is asked to assess the credibility of witnesses from their oral evidence, that is to say, to weigh up their evidence to see whether it is reliable. Witness choice is an essential part of the function of a trial judge and he or she has to decide whose evidence, and how much evidence, to accept. This task is not to be carried out merely by reference to the impression that a witness made giving evidence in the witness box. It is solely not a matter of body language or the tone of voice or other factors that might generally be called the ‘demeanor’ of a witness. The judge should consider what other independent evidence would be

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available to support the witness. Such evidence would generally be documentary but it could be other oral evidence….”

In the case of Armagas Ltd Vs Mundogas S.A. (The Ocean Frost),67 it has been held by Lord Goff that “speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.”

In the case of Bharwada Bhoginbhai Hirjibhai vs State Of Gujarat68 The Supreme Court of India has held that “We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned counsel for the appellant. Over much importance cannot be attached to minor discrepancies. The reasons are obvious:

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 attuned 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 one 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 guess work 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.


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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, get confused regarding sequence of events, or fill 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 witnessed by him-Perhaps it is a sort of a psychological defense mechanism activated on the spur of the moment.

Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all-important “probabilities-factor” echoes in favour of the version narrated by the witnesses.”

In the case of Bhagwah Jagannath Markad and Others Vs State of Maharashtra69 the Supreme Court of India has held that “while appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence …… It is not every discrepancy which affects creditworthiness and trustworthiness of a witness ……. The court has to sift the chaff from the grain and find out the truth …. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and such the normal discrepancy does not affect the credibility of a witness.”

Identifying Pinocchio; Two examples of Testing and Assessing the Veracity of a Witness’ Evidence

In the case of Jane Laporte, Nicolas Christian Vs Commissioner of Police Metropolis70, on 24.2.2011 Haringey London Borough Council held a full council meeting at the Haringey Civic Centre to debate on the proposed cuts to the council’s budget and services. While the council was in session a considerable number of protestors surged into the Civic Centre building and the police already on guard unsuccessfully and vainly attempted to suppress the protestors and the protestors entered the building, broke down the council chamber doors and a significant

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number of them entered the chamber in which the council members were gathered to hold the debate, despite the police barricade. The protestors who were able to enter into the chambers started shouting and the councilors could not hold the debate. The councilors exited the chamber via the fire exit and they reassembled inside a staff canteen area and continued the debate. The protestors discovered that the councilors were holding the debate in the canteen and they gathered outside the canteen and started to bang on the canteen doors demanding to be let in. Then someone set off the fire alarm and the locks on the canteen doors were released. There were two doors leading into the canteen area where the councilors were gathered and the protestors were able to enter through the first set of doors. But by the time they reached the second set of doors Inspector Wakeford shouted “breach of peace” he ordered his officers to “take one person each” As the police were moving the protestors out of the corridor Ms. Laporte is seen on film shouting “what the fuck are you doing?””

In this case “the video evidence shows that the police officers were, at the very least, physically ushering the protestors down the main stairs.”

In this case the position of the claimants was that the “actions of the police in using force to remove the protestors, even from the canteen, were unlawful and that they had gone beyond the boundaries of legitimacy when they were bundling them down the stairs.” The defendant in contrast argued that “it was entirely permissible for the police not only physically to expel the protestors from the upper floors down the main staircase but also out of the building completely.” The defendant further contended that they were justified in the use of force because there was an “ongoing or imminent breach of the peace.”

Inter alia, the High Court of Justice of England and Wales Queen’s Bench Division considered the evidence relating to the breach of peace. But it was a difficult task to determine whether there was actually “an ongoing or imminent breach of peace” as contended by the defendant because;

“i. The events in question unfolded at different times and in different parts of the building often in crowded and confused conditions in which no single witness would be in a position to make a confident assessment of everything or even most of what was going on.

ii. Inevitably, to varying degrees, protestor witnesses were inclined to interpret events in the way most favourable to their own standpoints and police witnesses were inclined towards justifying their actions retrospectively by over stating the affairs at the Civic Centre.

iii. Emotions at the time were running high on both sides and objectivity was further impaired as a result.


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iv. The incident took place about three and a half years before these claims came to court by which time recollections could be expected to have been weakened and rendered more unreliable by the passage of time.”

Hence the court did not consider the statements of the witnesses in isolation but also went through the video footage and held that “it was clear from the video footage that sustained and heavy physical force was used to overcome the resistance of the officers in the corridor.”

The court also considered the recordings of the calls received from the police officers at the Civic Centre which were recorded on a “computerized system known as the CAD.” It was revealed from the evidence presented before the court that “the operator of the system on the evening in question recorded no request for urgent assistance. He or she recorded two requests for assistance from the two officers in the corridor but neither was labelled as urgent.” Also “no officer was called to give evidence that it was he or she who made the urgent call and no audio recordings have been produced.”

Thus the court concluded that there was no urgency as contended by Inspector Wakeford in his evidence.

It was also discovered that seven police officers had made entries in their notebooks to the effect that “described themselves as running into the building and through the reception area.” But the CCTV evidence revealed that “their progress was generally somewhat slower than this.”

The police officers had given evidence to the effect that they “recalled seeing a significant number of protestors outside the Civic Centre at the time of their arrival.” But “no such activity is to be seen in the clear view provided by the CCTV footage at the material time.”

The police officers gave evidence that the “fire alarm was still sounding and this was adding to the confusion as they were escorting the protestors down the stairs from the third floor landing.” The court held that “again this is contradicted by the film footage which reveals that the alarm had stopped sounding some considerable time earlier at a time when the TSG officers were going through the foyer and before they had even reached the corridor.”

Finally the court decided that the evidence given by the witnesses were exaggerated but was able to “sift the grain from the chaff ” by referring to and placing reliance on the “CCTV footage and still photographs.”

Nevertheless the court held that there was a breach of peace.

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In the case of United Sates Vs Hiss71 the US Court of Appeals Second Circuit considered the following evidence in assessing veracity of the statements made by one Alger Hiss.

In this case Alger Hiss was accused of turning over confidential documents and copies thereof belonging to the State Department to Whittaker Chambers a Communist. Hiss testifying before the Grand Jury of the United States sitting in the Southern District of New York stated that he “never turned over any document of the State Department or any other Government Organisation, or copies of such documents, to Whittaker Chambers or to any unauthorised person.” He further stated testifying before the same Grand Jury that “he thought he could definitely say that he did not see Mr. Chambers after January 1, 1937.”

He was charged for the crime of perjury and was thereafter tried and convicted for the same. Hiss appealed against the judgment and the sentence thereon.

It was revealed by a testimony Whittaker Chambers had given before the Committee on Un - American Activities of the House of Representatives which had been “conducting investigations as authorised of matters which included subversive activities of governmental employees and others” that from 1934 to 1938 he had been a member of the Communist Party of the United States and had been in association with a communist group in Washington whose objective is to “infiltrate its members into responsible government positions; an ultimate goal was espionage.” Hiss had been an active member of this group and was an “assistant to Mr. Francis B. Sayre, Assistant Secretary of the State.”

After this testimony Hiss on his own motion appeared before the Committee and denied ever being a “communist or a communist sympathizer” and also denied ever having known or seen Whittaker Chambers even when he was shown a picture of him.

Hiss thereafter demanded a confrontation with Chambers. Chambers was recalled to give evidence before the Committee again. During his testimony Chambers gave evidence “in considerable detail concerning appellant’s (Hiss’) places of residence and their arrangements and furnishings, as well as about his habits and family.”

Hiss also appeared before the Committee and he was introduced to Chambers and was asked whether he had known Chambers before this introduction. In reply Hiss requested that Chambers should say something. Then Chambers was asked a question to which Chambers had replied and Hiss had walked towards Chambers and asked him to open his mouth wider when giving answers to the questions asked from him and Chambers had done as requested. Thereafter Chambers was


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asked to read something which too he had done as requested. After a repetition of these proceedings Hiss had stated to the Committee that “the voice sounds a little less resonant than the voice that I recall of the man I knew as George Crosley. The teeth look to me as though they had been improved upon or that there has been considerable dental work done since I knew George Crosley, which was some years ago.” The Committee inquired from Chambers as to whether he has had “extensive dental work done” to which Chambers replied in the affirmative. Hiss further stated before the Committee that “.... I feel very strongly that he is Crosley, but he looks very different in girth and other appearances - hair, forehead, and so on, particularly the jowls.”

Hiss also stated that he had sub leased an apartment of his in Washington to Crosley but he had paid no rent in cash and Hiss had also let Crosley borrow an old Ford car owned by him when Crosley wanted to rent a car. Crosley had rented the apartment and used the car during the summer of 1935 and Hiss had seen Crosley and had several times associated with him during that period. Hiss identified Whittaker Chambers as George Crosley a former acquaintance of his, during the proceedings before the Committee.

Later on Hiss filed suit against Chambers to “recover damages for alleged tort” with regard to the accusations Chambers made against Hiss at the Committee proceedings, in the United States District Court in Maryland.

During pre - trial proceedings Chambers in support of his accusations against Hiss produced before court “forty - three typewritten documents and four memoranda written with pencil.” It was conceded that the memoranda were handwritten in the handwriting of Hiss and it was revealed that the typewritten documents were typewritten on a “Woodstock typewriter which had belonged to Mr. and Mrs. Hiss and had been kept in their home in Washington.” It was revealed that “these typewritten papers were copies of confidential documents in the State Department which Mr. Hiss could have obtained, and the penciled summaries were of similar documents which obviously he did have at least long enough to enable him to make the memoranda.”

Chambers also produced before court “.....two rolls of developed micro - film, which had been made of other confidential documents from the State Department, and three rolls of undeveloped micro - film, one of which was found to have been light struck.”

Chambers testified that Hiss “abstracted” confidential documents from the State Department and gave them to Chambers. Chambers “micro - filmed” the documents and returned the originals to Hiss and also that “ Mr. Hiss would take

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home each night from the State Department confidential documents which Mrs. Hiss would copy on a Woodstock typewriter they had in their house. These copies would accumulate, and when Mr. Chambers called at the Hiss home on one of his fortnightly visits he would pick up what copies they had, together with any originals Mr. Hiss had that day brought home.”

During the trial it was revealed that the documents produced by Chambers, except one, was typewritten or copied on the Woodstock typewriter belonging to Hiss. It was also revealed that “aside from dental repairs, probably extensive than the average person requires during such a period, there was nothing to show any change in the appearance of Mr. Chambers which should be unexpected in a man of his age during about ten years between the time the appellant (Hiss) admitted having last seen him and known him as Crosley and the time in 1948 when he denied that he could recognize Mr. Chambers.”

The court held that in consideration of all the available evidence that the documents “of which Mr. Chambers produced copies were all available to Mr. Hiss at the State Department and that finding, coupled with the admitted fact that they were copied on a typewriter which the jury could tell was used for that purpose when in the possession of Mr. Hiss in his home, supplied circumstances which strongly corroborated the testimony of Mr. Chambers.”

It is evident from these two examples that a court should not assess the veracity of a fact based solely on the oral evidence of an eye witness in isolation but it is always prudent to consider all the evidence presented by both the prosecution and the defense, the plaintiff and the defendant collectively together and along with other supplementary evidence such as trace evidence, documentary evidence, audio and video recording evidence etc. and identify the inherent contradictions and consistencies, in testing and assessing and finally determining the veracity of the evidence given by a witness.

Is an Appellate Court justified in revising or overturning the decision of a Court of First Instance on Facts as well as the Law?

In Sri Lanka, primarily the appellate jurisdiction is vested in the apex courts in terms of Article 127 (1) of the 1978 2nd Republican Constitution of Sri Lanka which reads thus that “The Supreme Court shall, subject to the Constitution, be the final Court of civil and criminal appellate jurisdiction for and within the Republic of Sri Lanka for the correction of all errors in fact or in law which shall be committed by the Court of Appeal or any Court of First Instance, tribunal or other institution and the judgements and orders of the Supreme Court shall in all cases be final and conclusive in all such matters.”


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In terms of Article 138 (1) of the same “The Court of Appeal shall have and exercise subject to the provisions of the Constitution or of any law, an appellate jurisdiction for the correction of all errors in fact or in law which shall be [committed by the High Court, in the exercise of its appellate or original jurisdiction or by any Court of First Instance], tribunal or other institution and sole and exclusive cognizance, by way of appeal, revision and restitutio in integrum, of all causes, suits, actions, prosecutions, matters and things [of which such High Court, Court of First Instance] tribunal or other institution may have taken cognizance : Provided that no judgement, decree or order of any court shall be reversed or varied on account of any error, defect or irregularity, which has not prejudiced the substantial rights of the parties or occasioned a failure of justice.”

It has been the view of legal scholars such as Cassandra Burke Robertson, Chad M. Godfather, Paul D. Carrington, Daniel J. Meador, Maurice Rosenburg, Aaron Andrew P. Bruhl, who are authors of many a researched article on the Right of Appeal, that they had “identified” that the role of the appellate courts is inter alia, “correcting legal and factual errors, encouraging the development and refinement of legal principles, increasing uniformity and standardization in the application in the application of legal rules and promoting respect for the rule of law.”72 And also it has been opined that “Appellate Courts are needed to announce, clarify and harmonize the rules of decision employed by the legal system in which they serve.”73

In the case of Dunn Vs Dunn’s Trustees74 it has been held that, “where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion; the appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence; the appellate court, either because the reasons given by the trial judge are not satisfactory, or because it mistakably so appears from the evidence may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses; and the matter will then become at large for the appellate court…..”

In the cases of Onassis Vs Vergottis75 and Thomson Vs Kvaerner Govan Ltd76 it has been held quoting Lord Macmillan that “the appellate court has before it only the printed record of evidence. Were that the whole evidence it might be said that the appellate judges were entitled and qualified to reach their conclusion upon the case. But it is only part of the evidence. What is lacking is evidence of the demeanor

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of the witnesses, their candor or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial. This assistance the trial judge possesses in reaching his conclusion but it is not available to the appellate court. So far as the case stands on paper, it not frequently happens that a decision either way may seem equally open. When this is so…. then the decision of the trial judge, who has enjoyed the advantages not available to the appellate court, becomes of paramount importance and ought not to be disturbed. This is not an abrogation of the powers of a court of appeal on questions of fact. The judgment of the trial judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong…”77

Rather similarly, it has been held by Lord Greene M.R. that “Puisne judges would be the last persons to lay claim to infallibility, even in assessing the demeanor of a witness. The most experienced judge may, albeit rarely, be deceived by a clever liar or led to form an unfavourable opinion of an honest witness and may express his view that his demeanor was excellent or bad, as the case may be….. I may further point out that an impression as to the demeanor of a witness ought not to be adopted by a trial judge without testing it against the whole of the evidence of the witness in question. If it can be demonstrated to conviction that a witness whose demeanor has been praised by the trial judge has on some collateral matter deliberately given an untrue answer, the favourable view formed by the judge as to his demeanor must necessarily lose its value…”78

In the case of Barbara Fox Vs Megan Percy79 it has been held that “….. In some, quite rare cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process. It is


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true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Societe d’Avances Commerciales (Societe Anonyme Egyptienne) Vs Merchants’ Marine Insurance Co (The Palitana) 80 “I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanor.” Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.”

Hence the Appellate Courts offers guidance to the Courts of First Instance as to how to come to correct judgments minimizing errors committed by them in evaluating facts through judicial review of facts as well as the application of law, in appeal and they are not estopped from doing so merely because they are to not valuable witnesses of demeanor.

In the case of Crowell Vs Benson81 in the US Supreme Court Hughes CJ held that “in cases brought to enforce constitutional rights, the judicial power….necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function. The case of confiscation is illustrative, the ultimate conclusion almost invariably depending upon the decisions of questions of fact. This court has held the owner to be entitled to “a fair opportunity for submitting that issue to a judicial tribunal for determination upon its own independent judgment as to both law and facts.””

In a subsequent case Hughes CJ stressed and explained this concept further in the US Supreme Court decision of St. Joseph Stock Yards Co. Vs United States82 in the following words, “but to say that their findings of fact may be made conclusive where constitutional rights of liberty and property are involved, although the evidence clearly establishes that the findings are wrong and constitutional rights have been

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invaded, is to place those rights at the mercy of….officials, and seriously to impair the security inherent in our judicial safe guards… but this judicial duty to exercise independent judgment does not require or justify disregard of the weight which may properly attach to findings upon hearing and evidence. On the contrary, the judicial duty is performed in the light of the proceedings already had, and may be greatly facilitated by the assembling and analysis of the facts in the course of the ….determination.”

Hence it can be concluded that in exercising the sacred duty to safeguard the constitutional rights of life, liberty and property of the ordinary people and thus when exercising the right to independent judgment the first instance judiciary is entrusted with the sacred duty to hear and consider all the relevant facts extensively, placed before the courts and other judicial tribunals respectively and the upper or the appellate judiciary has the reciprocal duty to ensure that the first instance judiciary exercises this duty with responsibility by judicial review of both the facts and the law and identify and correct the mistakes made which task is pivotal to safe guarding the constitutional rights of life, liberty and property of the individual and they should not hesitate in exercising this duty placing undue high regard on the fact that the original fact finder is the best judge of demeanor.

Standard and Burden of Proof and its relationship with the Credibility and reliability of Witnesses

Evidence Ordinance of Sri Lanka interprets a “fact”. And according to Section 3 of the same “Fact” means and includes -

(a) any thing, state of things, or relation of things capable of being perceived by the senses ;

(b) any mental condition of which any person is conscious ;

In terms of Section 3 of the Evidence Ordinance as amended “A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man might, under the circumstances of the particular case, to act upon the supposition that it exists.” And in terms of the same “A fact is said to be disproved when, after considering the matters before it, the court either believes that it does not exist, or considers its non-existence so probable that a prudent man might, under the circumstances of the particular case, to act upon the supposition that it does not exist.” And also in terms of the same “A fact is said not to be proved when it is neither proved nor disproved.”

Dixon J refers to “Standard of Proof ” thus; “The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its


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occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.... Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.”83

Cross refers to “burden of proof ” as; “The obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue, due regard being had to the standard of proof demanded of the party under such obligation.”84

When a fact finding and a decision making process “involves a decision under uncertainty” a set of guidelines or rules are formed and they are as a whole known as the burden of proof.85

One mode of fact finding in an adjudication process in justifying the burden of proof is called the “Gambling mode” which had been best described as “gambling on the truth”. Gambling mode is based on mathematical calculation to decide whether the occurrence of a particular incident is probable or not rather this mode uses mathematical precision to decide between two conflicting incidents as to which incident is probable than the other.86

It has been decided in the case of Smith vs Rapid Transit Inc.,87 that “….the mathematical chances somewhat favor the proposition that a bus of the defendant caused the accident. This is not enough. A proposition is proved by a preponderance of the evidence if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal not withstanding any doubts this may still linger there.”

Another mode of deciding on the burden of proof is the epistemic mode where there are contested accounts of an incident and the court as a fact finder considers all the rival contesting claims and decide what are the probable scenarios and what

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are the improbable scenarios based on the available evidence. The court rule out the improbable scenarios from amongst them and select the most probable scenario.88

In such a case the court may need to consider all the evidence. In the case of Old Chief Vs United States 89 US Supreme Court held that “the accepted rule that the prosecution is entitled to prove its case free from any defendant’s option to stipulate the evidence away rests on a good sense. A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it. People who hear a story uninterrupted by gaps of abstraction may be puzzled at the missing chapters, and jurors asked to rest a momentous decision on the story’s truth can feel put upon at being asked to take responsibility knowing that more could be said than they have heard. A convincing tale can be told with economy, but when economy becomes a break in the natural sequence of narrative evidence, an assurance that the missing link is really there is never more than second best.”

It has been held by Lord Denning in the case of Miller Vs Minister of Pensions90 that the burden of proof in criminal cases are “well settled” to the effect that “it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable,” the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

In Civil litigations, the United States in case of Wright Root Beer Co. v. Fowler Products Co.,91 the First Circuit Court of Appeal has held that “The jurisprudence is well settled that one entitled to recovery must make and establish his claim to a legal certainty. It does not suffice for the plaintiff to make out a case that is merely probable; he must establish his claims to a legal certainty by a reasonable preponderance of the evidence.”

In the case of Southern Farm Bureau Cas. Ins. Co. v. Florane92, the Third Circuit Court of Appeal had further stated that “Proof by a preponderance of the evidence requires that the evidence as a whole show that the fact sought to be proved is more probable than not.”

In the case of Gower Vs Gower 93 Bucknill LJ has held that ……in a civil action a matter may be proved on a balance of probabilities and the court may decide one way or the other on a very small margin of preference…..”


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In the case of Bater Vs Bater94 Denning LJ has held that “….. The degree of probability which a reasonable and just man would require to come to a conclusion – and likewise the degree of doubt which would prevent him from coming to it – depends on the conclusion to which he is required to come.

In the same case Lord Denning quotes Sir William Scott in Loveden Vs Loveden95 with approval quoting as follows; “the only general rule that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion.”

This was the opinion held by Allen and Stein 96 when they wrote that, epistemic approach coupled with common sense that confirm to the “people’s normal cognitive practices” should be the most “attractive” norm in fact finding and further they went on to quote from Cohen on Freedom of Proof in Facts in the Law97 that “we need only a reasonable laymen, not a logician or statistician, to determine what is beyond reasonable doubt.”

Hence when deciding on the credibility and reliability of a witness’ evidence the court or the fact finding tribunal must not consider the evidence presented to see that there is a case beyond reasonable doubt or a balance of probability based on mathematical precision for there can never be a mathematical formulae to judge whether a witness is telling a lie or the truth but the judge or the fact finder must consider the evidence presented collectively as a whole and based on common sense and rationality and the individual circumstances of the case decide whether the story narrated by the witness as to the happening of an incident is impossible or probable beyond a reasonable doubt or on a balance of probability. This all depends on the competence, knowledge, maturity and ability, training and experience of a fact finder or a judge to reason out his decision.

Conclusion

It is apparent from all of the above that there is no scientific research or any scientific or indisputable judicial guidelines to determine from the manner of giving evidence by a witness such as his nonverbal behavior that the witness is telling the truth or uttering falsehood. In the absence of scientific research it will not be correct to say that even through experience a particular Judge is correctly able to determine the credibility and the reliability of a witness merely by observing his or her demeanor or his nonverbal behavior on the witness box. No witness can be expected to remember an incident as it had happened exactly to the effect that he or she can replay it on his/her mind as a human video tape recorder during trial for it is impossible and powers of observation and what detail is important and what is not to be remembered differs

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from person to person. Even the details of demeanor of a witness which may be considered important will differ from Judge to Judge too since not all the Judges are well equipped with equal experience, expertise and perceptions about life and people and also their powers of observations may differ as well. No witness can be expected to recall all the minute details about how an incident had occurred especially many years before and similarly no Judge can be expected to record or remember all the minute details with regard to the witnesses’ demeanor when giving the final judgment unless it is accurately observed and recorded as a still photograph which is rather doubtful as evident from the above discussion. Hence the appellate court is in no better position than a trial judge to be a judge of the truthfulness of the facts as narrated by the respective witnesses.

Therefore in consideration of the preceding research and discussion the author is of the belief that when deciding whether a witness is credible and reliable or not it is prudent for the appellate court judge to take into consideration all the facts available and assess the overall evidence as recorded by the trial judge that is the disputed, undisputed and indisputable facts and see whether there are consistencies and inconsistencies inter se and per se between the facts disputed and undisputed and indisputable. And finally the court must decide what disputed facts are consistent with the undisputed and indisputable facts when deciding the credibility and the reliability of the witnesses. There may be discrepancies between the disputed and the undisputed and the indisputable evidence or facts but the court must decide whether such discrepancies affect the core of the issues in dispute and which must be tried and decided by the court and finally decide whether such discrepancies and consistencies between the disputed and the undisputed and indisputable facts which goes into the core roots of the issues to be tried and decided affect the probability factor of the case. Which means does the discrepancies and the consistencies inter se and per se between the disputed and the undisputed and indisputable facts or evidence makes the case improbable or probable? This can be a formulae for judging the credibility and the reliability of a witness which can be used by both the trial judge and the appellate judge. Hence demeanor of a witness will no longer play a prominent part in a trial court for the appellate court to give it so much of importance to consider that the findings of the trial judge as to the demeanor inarguable.

Whether a case may be civil or criminal, the evidence presented by the witnesses must show or prove to the court that what the witnesses says as to what has actually happened is probable or not under the given circumstances of the incident. Which means that there should be a probability as to the occurring of the incident. Nevertheless the degree of probability might differ according to the standard and


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burden of proof between civil and criminal cases. But however, the evidence presented by the witnesses must prove to the court that a reasonably prudent and matured man under the given individual circumstances would readily without hesitation believe that there is a reasonable probability that the incident has happened the way the witnesses says it has happened.

The assessment of facts by a fact finder or a judge must be meticulous, based on reasonable judgment and finally justified. Hence it can be finally concluded that the Appellate Judge is on the same footing as a Judge of the First Instance in appraising evidence led in a Trial Court.

Finally the author would conclude with the following quote as it has been held by Judge Regan in Bryant v. Hartford Acc. & Indem. Co98., Fourth Circuit Court of Appeal recently observed: “Law, like other inexact social sciences, must be content to test the validity of its conclusions by the logic of probabilities rather than the logic of mathematical certainty.”

Endnotes

1. Faryna v. Chorny [1951] B.C.J. No. 152; [1952] 2 D.L.R. 354

2. Stephen Porter and Leanne ten Brinke, Dangerous Decisions: A Theoretical Framework for Understanding How Judges Assess Credibility in the Court Room, Department of Psychology, Dalhousie University, Nova Scotia, Canada, Legal and Criminology Psychology Journal (2009) 14, 119 – 134, The British Psychology Society.

3. Government of the Virgin Islands v. Aquino, 378 F.2d 540, 548 (3rd Cir. 1967)

4. Coy v. Iowa, 487 U.S. 1012, 1019 (1988). See also, Commonwealth v. Ludwig, 594 A.2d 281, 284 (Pa. 1991)

5. Stephen Porter and Leanne ten Brinke, Supra 3

6. Indiana Metal Prods. v. NLRB, 442 F.2d 46,51 (7th Cir. 1971)

7. Carbo v. United States, 314 F .2d 718, 749 (9th Cir. 1963).

8. Henry Campbell Black, M.A., Black’s Law Dictionary, Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, Revised 4th Edition, St. Paul, Minn. West Publishing Co.(1968) Pg. 517

9. Gregory L. Ogden, The Role of Demeanor Evidence in Determining Credibility of Witnesses in Fact-Finding: The View of AU’s, 20 J. NAALJ 1, 2 (2000) (survey results).

10. Henry Campbell Black, M.A., Black’s Law Dictionary, Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, Revised 4th Edition, St. Paul, Minn. West Publishing Co.(1968) Pg. 1531

11. (1995) 22 O.R. (3d) 514

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12. Laurentide Motels v. Beauport (City) (1989) 1S.C.R. 705, it has been held by Supreme Court Justice L’Heureux-Dube´ stating that judges should consider “‘the movements, glances, hesitations, trembling, blushing’ in assessing the credibility of witnesses.”

13. Samaraweera Vs Jayawardana 4 NLR 106; Jagathsena Vs Banadaranayake [1984] 2 SLR 397

14. Olin Guy Wellborn III, Senior Professor of Law and Associate Dean for Academic Affairs, the University of Texas School of Law, A.B.1970, J.D. 1973, University of Harvard, Demeanor, Cornell Law Review, Vol 76, Issue 5 , July 1991

15. Jerome Frank, Courts on Trial, (1950)

16. Jeremy A. Blumenthal, J.D., Ph.D., A Wipe of the Hands, A Lick of the Lips: The Validity of Demeanor Evidence in Assessing Witness Credibility, Nebraska Law Review volume 72 ,Issue 4, 1993, Article 8

17. Dyer v. MacDougall 201 F.2d 265 (2d Cir. 1952)

18. Supra 18

19. Edmond H. Cooper, Directions for Directed Verdicts; A Compass for Federal Courts, 55 Minnesota Law Review 903 (1971)

20. Professor John S. Applegate, Witness Preparation, 68 Texas Law Review 277 (1989)

21. Stephen Porter and Leanne ten Brinke, Supra 3

22. A. Daniel Yarmey, Ph.D., University Professor Emeritus, University of Guelph, Canada, Department of Psychology,

The Psychology of Eyewitness Testimony 169 (1979), New York Free Press; “Even professionals who have to make daily decisions whether people are lying do not demonstrate high accuracy when detecting deception. (Meissner and Kassin 2002; O’Sullivan and Ekman 2004)”, A.D. Reidlich and C. Meissner, Techniques and Controversies in the Interrogation of Suspects; The Artful Practice Versus The Scientific Study; J.L. Skeen, K. Douglas and S. Lilienfeld (Eds.) Psychological Science in the Court Room; Controversies and Consensus, New York, The Guildford Press pg. 124 - 149

23. United States Supreme Court, Decided on June 29, 1988 No 86 – 6757 see also Morales Vs Artuz (2002) US. App (2nd).

24. 482, U.S. 703 (1987)

25. 156, U.S. 237 (1985)

26. 175, F. 2d. 77,80 (2d.Cir. 1949)

27. [2010] EWCA Civ. 407

28. [2015] EWHC 3612 (Admin) (11, December 2015)

29. 194 F.2d 449,451 (2d. Cir. 1951)

30. 201 F.2d at 488, 90 (1952)


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31. N. Pennington and R. Hastie Explaining Evidence; Tests of the Story Model for Juror Decision Making. Journal of Personality and Social Psychology (1992) 62, 189 - 206

32. W.A. Wagenaar, P.J. Van Koppen and H.F. M. Crombag (1993) Anchored Narratives; the Psychology of Criminal Evidence, New York, St. Martin’s Press.

33. Bella M. DePaulo et al., Deceiving and Detecting Deceit, in The Self and Social Life 323 (Barry R. Schlencker ed., 1985) (reviewing research)

34. British Prime Minister Neville Chamberlaine’s Peace in Our Time speech delivered at the Heston Aerodrome near London, UK on September 30th 1938.

35. J.P.O. Barry, Judge of the Family Court of Australia The Methodology of Judging, [1994] JCULawRw 7; (1994) 1 James Cook University Law Review 135, classic.austlii.edu.au/au/journals/JCULawRw/1994/7.pdf, 14/5/2018

36. Judge Wells, Supreme Court of South Australia The Finding of Facts, 1983 Canberra Judicial Conference.

37. Jerome Frank, Courts on Trial (Princeton: Princeton University Press, 1949) at 16.

38. Alan W. Mewett & Peter J. Sankoff, Witnesses (Carswell: Toronto, 1991 & updated) c. 11 and S. Casey Hilt et al., McWilliams Canadian Criminal Evidence (Aurora, Ont.: Canada Law Book, 2004) c. 27.

39. Jerome N. Frank, “Judicial Fact – Finding and Psychology”, Yale Law School Faculty Scholarship Repository, Faculty Scholarship Series 1-1-1953, Paper 4093, http://digitalcommons.law.yale.edu/fss_papers/4093, 14, Ohio State Law Journal 185, 1953

40. Jerome N. Frank Supra 38

41. Jerome N. Frank Supra 38

42. Supreme Court of Queensland, Brisbane, Australia, Supreme Court of Queensland Library (2006)

43. Justice McKenna, paper delivered at the University College Dublin, 21 February 1973 which was published in the Irish Jurist Vol IX New Series Pg. 1 which was adopted by Lord Devlin in his book, The Judge.

44. [2010] EWCA Civ. 407

45. 175, F. 2d. 77,80 (2d.Cir. 1949)

46. J.P. Timothy, Demeanor Credibility (2000) 49 Catholic University Law Review 903

47. Hazel Genn, “Assessing Credibility, People only correctly judge whether someone is lying 50 per cent of the time. Why is it so hard to tell if someone is telling the truth? And how can tribunals improve their rate of detecting deceit? HAZEL GENN explains.” A Professor of Socio-Legal Studies at University College London. https://www.judiciary.gov.uk/wp-content/uploads/.../genn_assessing-credibility.pdf, 8/5/2018

48. Professor Paul Ekman, Telling Lies (2001), and Daniel McNeill, The Face (1998).

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49. Hon. Justice Peter McClellan, Chief Judge at Common Law, Supreme Court of New South Wales, Australia.

Who is telling the truth? Psychology, common sense and the law, Local Courts of New South Wales, Annual Conference 2006, 2 – 4 August 2006

50. 201 F.2d at 488, 90 (1952)

51. 201 F.2d at 488, 90 (1952)

52. P. Ekman, Telling Lies: Clues to Deceit in the Marketplace, Politics and Marriage, Norton, New York 1985

53. M.G. Frank, Assessing Deception: Implications for the Courtroom, (1996) 2 TJR 315

54. J. Ellard, A Note on Lying and its Detection, (1996) 2 TJR 303

55. Tasmanian Supreme Court, 31 May 1994 (unreported)

56. Guidelines Relating to Recovered Memories, the Australian Psychological Society, 2000

57. (1989) 168 CLR 79

58. [1968] 2 Lloyd’s Reports 403

59. Olin Guy Wellborn III, Demeanor, (1991) 76 Cornell Law Review 1075

60. AM Gleeson, Judging the Judges, (1979) 53 ALJ 344

61. Patrick Browne, Judicial Reflections, (1982) 35 Current Legal Problems 5


63. [2013] EWHC B1 (Ch.)

64. Supra 63

65. [2011] EWCA Civ. 61

66. [2015] EWHC b1 (Mercantile) 16 January 2015


68. 1983 AIR 753 (24 May, 1983)

69. Criminal Appeal no 1516 of 2011 (4 October 2016)

70. [2014] EWHC 3574 (QB)

71. 185. F. 2d 822 (2d Cir. 1950)

72. Cassandra Burke Robertson, “The Right to Appeal”, 91 North Carolina Law Review 1219 (2013); “Appellate Review of Discovery Orders in Federal Court: A Suggested Approach for Handling Privilege Claims 81 Wash. L. Rev. 733 (2006);Forum Non Conveniens on Appeal: The Case for Interlocutory Review, 18 Sw. J. Int’l L. 445 (2012); Chad M. Godfather, “Error Correction”, 85 Ind. L.J 49 (2010), Paul D. Carrington, Daniel J. Meader and Maurice Rosenburg, “Justice on Appeal”, 3 (1976); and Aaron Andrew P. Bruhl, “Deciding When to Decide: How Appellate Procedure Distributes the Cost of Legal Change”, 96 Cornell L. Rev. 203 (2011).


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73. Cassandra Burke Robertson, “The Right to Appeal”, 91 North Carolina Law Review 1219 (2013); Paul D. Carrington, Daniel J. Meader and Maurice Rosenburg, “Justice on Appeal”, 3 (1976).

74. [1930] S.C. 131

75. Supra 63

76. [2003] UKHL 45

77. Thomas Vs Thomas 1947 SC (HL) 45

78. Yuill Vs Yuill [1945] 1 All E.R. 183 (CA)

79. [2003] HCA 22; 214 CLR 118 (30 April 2003)

80. (1924) 20 LIL Reports 140

81. 285 U.S. 22 (1932)

82. 298 U.S. 38 (1936)

83. Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336,

84. J.D. Heydon, Cross on Evidence, 11th Edition, LexisNexis Butterworths (2017)

85. Ronald J. Allen and Alex Stein, “Evidence, Probability and the Burden of Proof ”, Arizona Law Review, vol. 55, 2013, pg. 557 - 602

86. Ronald J. Allen and Alex Stein, Supra 86

87. 317 Mass 469, 58 N.E. 2d 754 (1945)


89. 519 U.S. 172 (1997)

90. [1947] 2 All E.R. 372

91. 196 So.2d 615, 618 (La. App. 1st Cir. 1967).

92. 173 So.2d 545, 548 (La. App. 3d Cir. 1965).

93. [1950] 1 All E.R. 804

94. [1950] 2 All E.R. 458

95. (1810) 2 Hag Con. 1; 161 E.R. 548; 27 Digest 296.


97. L. Jonathan Cohen, “Freedom of Proof, in Facts in the Law”, 16 Archives for Philosophy of Law and Social Philosophy 1, 21 (William Twinning Ed., 1983)

98. 158 So.2d 263, 265 (La. App. 4th Cir. 1963)

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IDENTIFYING THE CORPUS IN A PARTITION ACTION; ISSUES AND SUGGESTIONS OF THE

DUTY OF THE COURT

Lilan WarusavithanaDistrict Judge/Magistrate of Tangalle.

“It is unfortunate that these proceedings which commended in 1952 should now after the lapse of six years have to be set aside and that the parties have to incur expense which would easily have been avoided had their lawyers been careful, and had the Court itself shown vigilance in seeing that provisions of the Act were observed.”

- Basnayake C.J (in Brampy Appuhamy Vs. Menis Appuhamy 1)

Introduction

The importance of identifying the corpus of a partition action has been emphasized in many superior court decisions and the above judicial dictum held in Brampy Appuhamy case has enlighten the duty of the trial judge to follow the provisions in the Partition Act provided for identifying the corpus. Therefore the importance of the identification of the corpus and several aspects which the trial judge should consider in deciding the same will be addressed in this article.

To whom with the duty to identify the corpus is entrusted?

Section 16 of the Partition Act provides for the initial duty of the trial judge to issue a commission to survey the land which the action relates. The uniqueness of a partition action which is considered as an action in rem, morefully shown by not allowing the parties to rely upon their own plans unlike in rei vindicatio action and to survey the land by court commissioner who has been duly appointed to the panel of surveys under the provisions of the Partition Act. Section 18 the Partition Act


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requires the surveyor to duly execute the commission issued to him and return the plan with a report verified by affidavit stating specific facts provided in section 18(1)(a) of the Act.

Therefore in a partition action there are certain duties cast on the court quite apart from objections that may or may not be taken by the parties and the courts are expected to make sure that all the parties will strictly comply with the provisions relating to the identification of the corpus.

In Kodituwakku v. Anver and others 2 it was held that in addition to the duty that is cast on the court to resolve the dispute that are set out by the parties in their issues, the court has a supervening duty to satisfy itself as to the identity of the corpus and also as to the title of each and every party who claims title to the same. It was held in Sopinona v. Pitipanaarachchi3 that clarity in regard to the identity of the corpus is fundamental to the investigation of title in a partition case, without proper identification of the corpus it would be impossible to conduct a proper investigation of title.

It is expected the surveyors to strictly adhere to the directions given in the commission and locate and survey the land. When the surveyor is unable to survey the land according to the commission issued, he is required to report the same to the court and seek further instructions form the court. It was held in Uberis v. Jayawardene4 that;

“It is the duty of a surveyor to whom a commission is issued to adhere strictly to its terms and locate and survey the land he is commissioned to survey. It is not open to him to survey any land pointed out by one or more of the parties and prepare and submit to the court the plan and report of such survey. If he is unable to locate the land he is commissioned to survey, he should so report to the court and ask for further instructions.”His lordship Basnayake C.J in Uberis5 case emphasized the trial judges’ role

in formulating terms of the commissions and held that since the commissions are instruments of the court, the trial judges are expected to give their personal attention to prepare the same.

“Another matter I wish to stress is that judges of the first instance should give their personal attention to the formulation of the terms of the commission issued in proceedings for the partition of land not leave it to be done mechanically by a member of the clerical staff attached to the court. A commission is an instrument issued by the court and should receive its careful consideration and specify in detail what the survey is required to do”

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The common practice adopted at present is that a party who seeks the commission, formulate its terms and the court automatically issues it to the surveyors. However as it was held in the aforesaid decision, the duty of the trial judge will remain to ensure the issuance of a proper commission and it is not open the trial judge to put any blame on the parties at the stage of judgment for not formulating the commission preciously.

The provisions of the Partition Act, provide that the plan and the report tendered by the commissioner (or the Survey General) to be used without further proof as evidence of the facts contained therein at any stage of the partition action6. Therefore even without summoning the surveyor, the court is empowered to consider facts contained in the plan and the report of the commissioner. Considering the evidential value of the report of the plan, it was held in Sopaya Silva v. Magilin Silva7 that the court should insist upon the requirement of the surveyor to express an opinion in his report whether or not the land surveyed by him is the land sought to be partitioned.

“Section 16(1) of the Partition Law requires that a commission be issued “to a surveyor directing him to survey the land to which the action relates”. It implies that the land surveyed must confirmed substantially with the land as described in the plaint (and in respect of which a lis pendens has been registered) as regards the location, boundaries and the extent. Further, it is for this reason that section 18(1)(a)(iii) requires the surveyor to express an opinion in his report whether or not the land surveyed by him ….is substantially the same as the land sought to be partitioned as described in the schedule to the plaint. Considering the finality and conclusiveness that attached in terms of section 48(1) of the Partition Law to the decrees in a partition action, the court should insist upon a due compliance with the requirement by the surveyor.”

However it has been continuously held that even the failure of the parties to summon the surveyor would not permit the trial judge to conclude that the corpus is identified. Aforesaid issue was considered in Dewayalage Susirilatha and others v. Mahamadu Abdul Hasan and others8 where the respondents argued that the preliminary plan and the report of the commissioner were marked in evidence and accepted by the appellant without any objections at the trial and therefore the same would amount to a waiver of any objection regarding the identification of the corpus. The said argument was rejected by the Court of Appeal and it was held that;

“ The respondents mentioning the proviso to section 18(2) of the Partition Act had said no application was made on behalf of the appellants to summon the surveyor to identify the land surveyed and to


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see whether it is the same land described in the schedule does not make a good argument. It is the duty of the trial judge to identify the land to be partition first. Whether the defendants have made an application or not is totally irrelevant.”

A similar view was also taken in Wickremaratne v. Albenis Perera9 where it was held that;

“In a partition action, there are certain duties cast on the court quite apart from objections that may or may not be taken by the parties. And this includes the supervening duty to satisfy itself as to the corpus and also title of each and every party who claims title to it.”

Therefore the duty of the trial judge to satisfy himself in respect of identifying the corpus will not be fulfilled even the parties to the action admit the corpus to be partitioned and make no point of contest regarding the same.

Steps to be taken in disclosure of difference in the extent

The corpus sought to be partitioned in Brampy Appuhamy v. Menis Appuhamy10 was described in the plaint as a land about six acres in extent, and a commission was issued to a surveyor to survey a land of that extent. The surveyor however surveyed a land of only 2 acres and 3 roods. The trial judge proceeded with the case and interlocutory decree was entered in respect of the surveyed 2 acres and 3 roods without any question being raised by any of the parties as to the wide discrepancy between the extent of the land described in the plaint and the land depicted in the preliminary plan. His Lordships Basnayake C.J emphasizing the importance of strict adherence of the directions given in the commission held that;

“In the instant case the plaintiff sought to partition a land of about 6 acres in extent and the surveyor was commissioned to survey a land of about that extent. His commission gave him no authority to deviate from the instructions issued to him, when the surveyor proceeded to execute his commission and was unable to locate a land of about 6 acres he should have reported that fact to the court and asked for its further directions. Without doing so he proceeded to survey a land of 2 acres and 3 roods in extent. He has therefore not duly executed his commission.”11

It was further held that the elaborate provisions contain in the Partition Act designed to ensure that the land which is partitioned is the land which is described in the plaint except where a defendant avers that that land is only a portion of a lager land which should have been subject matter of the action or that only a portion of the land so described should have been made such subject matter. When such position is

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taken by a defendant, a fresh commission has to be issued for the survey of the extent of land averred by the defendants.

In Sirima Shanthi Mendis v. Adhikaram Mudiyanselage Punchi Amma12 it was held that the failure of the parties to question the surveyor on the discrepancy of the extent or to move for an alternative commission will not absolve the duty of the court to conclude that the land sought to be partitioned is properly identified. Similar view was taken in Dias v. Yasatilake13 where it was held that;

“Just because Mr. Amendra(L.S) was not cross examined by the defence and that there had been no objection by anybody when carrying out the survey the learned judge cannot conclude that the corpus was lot No 1 in plan X. in my view it is an erroneous conclusion.”When the land described in the preliminary plan is significantly larger than the

land described in the plaint it is of extreme importance the trial judge to direct the parties to register fresh lis pendens in respect of the lager land. Failure to comply with the said requirement itself considered as a major infirmity to set aside the judgment of the trial court.

Apart from having fresh lis pendens, the court should make sure that all the interested parties of the lager land are before the court prior to proceed with its determination of the ownership of the subject matter. His Lordship Marsoof J in Sopi Nona v. Cornelis14 expressed strong views with regard to the importance of registering fresh lis pendens and adding necessary parties.

“It has been expressly provided in section 23(3) of the Partition Act of 1951 that where a survey made on a commission issued by court in a partition case “disclose that the land described in the plaint is only a portion of a larger land which should have been made the subject matter of the action, the court shall specify the party to the action by whom, and the date on or before which, and application for the registration of the action as a lis pendens affecting that larger land shall be filed in court” to enable the filing of lis pendens showing the lager land and taking other mandatory steps under the Act, which are necessary to ensure that all interested parties are before court……..in the absence of material to show that section 23 of the Partition Act was complied with, raises serious doubts as to the regularity and legality of the impugned decision of the District Court in this case” However in the case of Sopaya Silva15 the Court of appeal by taking a different

view held that it is not open the trial judge to dismiss the action on the point of wrong registration of the lis pendens when there is no contest between the parties in respect of the same. It was further held that;


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“An examination of the proceedings reveal that the parties were not at issue regarding the due registration of the lis pendens. Even the District Judge did not raise this matter as an issue at the trial. Therefore no party had an opportunity to address court as to the regularity of defects in the lis pendens that was registered. It appears that the discrepancy in extent of the land as described in the lis pendens and the preliminary plan was discovered by the district judge at the stage of writing the judgment and that he proceeded to make the order without hearing the parties. The procedure adopted by the District Judge is in violation of a basic rule of natural justice which requires that the parties be afforded a due hearing before a determination is made. This appeal has to succeed on that ground alone.”

The above judicial dictum held in Sopaya Silva case16 emphasizes the responsibilities of a trial judge at the initial stages of a partition action and when there are no points of contests between parties in respect of the registration of the lis pendens, it further suggests to allow the parties to correct the said defect without dismissing the partition action at the stage of the final judgment.

It is also important to note that inconsistency in extent will not affect the question of identify if the portion of the land conveyed is clearly described and can be precisely ascertained.17

Apart from the aforesaid discussions regarding the surveyors’ responsibility and due registration of lis pendens, the case of Sopaya Silva18 has provided an important guidelines to the trial judge when there is a different in the extent of the land to be partition with the plaint. It was held that;

“On receipt of the surveyor’s return to the commission, which disclosed that a substantially larger land was surveyed, it was incumbent on the trial judge to decide on one of the following course of action, after hearing the parties,i) To reissue the commission with instructions to survey the land as

described in the plaint. The surveyor could have been examined orally as provided in section 18(2) to consider the feasibility of this course of action;

ii) To permit the plaintiff to continue the action to partition the lager land as depicted in the preliminary survey. This course of an action involves the amendment of the plaint and the taking of other consequential steps including the registration of a fresh lis pendens;

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iii) To permit any of the Defendants to seek a partition of the larger land as depicted in the preliminary survey. This course of action involves an amendment to the statement of claim of that defendant and taking of such other steps as may be necessary in terms of section 19(2)”

The power of the court to call further evidence

The above discussion confirms the duty of the trial judge to satisfy himself in respect of identifying the corpus in a partition action and for the said purpose, the court is empowered to call further evidence even after the parties have closed their case. In Jayasuriya v. Ubaid19 it was held that;

“There is no question that there was a duty cast on the trial judge to satisfy himself as to the identity of the land sought to be partitioned, and for this purpose it was open to him to call for further evidence in order to make proper investigation. In Thayalnayagam v. Kathiresapillai Hutchinson C.J said;

‘In a partition action such as this is, I think that the judge has power, and that in some cases it may be his duty, even after the parties have close their case, to call for further evidence. But if he does, he must do it in a regular manner”20

The power of the court to call further evidence was also accepted in Balachandra Arachchige Dona Gunawathie v. Ratnayake Mudiyanselage Punchi Banda21 and it was held that;

“Unlike the judgments in other cases, the judgments in partition actions binds not only the parties to the action but also the whole world. Therefore judges in partition actions are burdened with severe responsibility in investigating the title of parties. The mere fact that the 6A-defendant-appellant has failed to prove that the land shown in the preliminary plan consists of portions of another land does not in any way lesson the responsibility and the duty of the court to find out and to be satisfied that the commissioner has properly surveyed the land sought to be partitioned as described in the schedule to the plaint or not. For this purpose it was always open to the learned trial judge to call for further evidence in order to make proper investigation.”

Therefore considering the aforesaid judicial decisions it can be concluded that the trial judge is vested with power to call further evidence at any time prior to the judgment if the evidence before the court is not sufficient to fulfill the duty of the court to identify the land sought to be partitioned. Considering the time and the


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cost spend by the parties and the court in a partition action, it is the duty of the trial judge to remedy certain lapses by calling further evidence in view of providing justice to the litigants. However in doing so, the trial judge should act under the prevailing circumstances and should bear in mind that it is not open him for a voyage of discovery of evidence.

Conclusion and Suggestions.

The purpose of casting a duty upon the court to identify the corpus was discussed in Jamaldeen Abdul v. Abdul Majeed22 and elaborating the importance of executing the final judgment His Lordship Marsoof J held that;

“The identity of the subject matter is of paramount importance in a rei vindicatio action because the object of such an action is to determine ownership of the property, which objective cannot be achieved without the property being clearly identified. Where the property sought to be vindicated consists of land, the land sought to be vindicated must be identified by reference to a survey plan or other equally expeditious method. It is obvious that ownership cannot be ascribed without clear identification of the property that is subjected to such ownership, and furthermore, the ultimate objective of a person seeking to vindicate immovable property by obtaining a writ of execution in terms of Section 323 of the Civil Procedure Code will be frustrated if the fiscal to whom the writ is addressed, cannot clearly identify the property by reference to the decree for the purpose of giving effect to it. It is therefore essential in a vindicatory action, as much as in a partition action, for the corpus to be identified with precision.”

Following conclusions can be suggested on the issue of identifying the corpus after considering the above discussed provisions in the Partition Act and the judicial decisions,

• It is the duty of the court to identify the land to be partitioned and the court should fulfill the same irrespective of admissions or the points of contests of the parties;

• The court should insist the surveyor to comply with the mandatory provisions provided in the section 18 of the Partition Act;

• The trial judge should give his personal attention in formulating terms of the commission;

• When the surveyor has surveyed a larger land to the land described in the plaint, the court should follow the course of actions laid down in Sopaya Silava case;

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• If the court is in opinion that further evidence should be called to identify the corpus, it is always open the trial judge to do the same at any stage prior to the judgment;

The authorities and the provisions discussed in this article clearly confirm the vital role of the trial judge in a partition action to identify the corpus and failure to entrust the said duty would ended up with a pathetic result which the only available remedy to dismiss the case after a long litigation.

Therefore it is suggested to hold an inquiry on the date of considering the plan and ascertain whether the land to be partitioned can be identified with available materials. If it is found that further clarification should be obtained from the surveyor, it is further suggested to summon the surveyor to the proposed inquiry. At the conclusion of the inquiry the court should record its findings in respect of identifying the corpus and the same will benefit all the parties to decide to proceed with the case or not. It is further suggested to narrate all the issues regarding the identification in order the parties to decide the evidence which should be led at the trial to answer the said issues.

Endnotes

1 Brampy Appuhamy Vs. Menis Appuhamy 60 NLR 337

2 Kodituwakku v. Anver CA 13/81, CA Minutes of 10.12.1985

3 Sopinona v. Pitipanaarchchi (2010) 1 Sri.LR 87

4 Uberis v. Jayawardene 62 NLR 217

5 Ibid 4

6 Section 18(2) of the Partition Act.

7 Sopaya Silva v. Magilin Silva (1989) 2 Sri.LR 105

8 Dewayalage Susirilatha and others v. Mahamadu Abdul Hasan C.A. Appeal No 561/2000(F) decided on 01.07.2016

9 Wickremaratne v. Albenis Perera (1986) 1 Sri.LR 190

10 Brampy Appuhamy v. Menis Appuhamy 60 NLR 337

11 The court further pointed out the duty of the attorneys at law in this regard where it was held that; “the proctors for the parties must take the blame for the present situation. It is their lack of care that has rendered a retrial necessary. We refrain from ordering the proctors to pay the cost of their clients in the hope that they will not charge fees from their clients in the retrial that has been rendered necessary”

12 Sirima Shanthi Mendis v. Adhikaram Mudiyanselage Punchi Amma SC. Appeal No 169/2010, decided on 23.02.2012


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13 (2005) 3 Sri.L.R 169

14 Sopi Nona v. Cornelis 2010 BALJ Vol XVI 109

15 Ibid 7

16 Ibid 7

17 Yapa v. Dissanayake (1989) 1 Sri.L.R 361

18 Ibid ..

19 Jayasuriya v. Ubaid 61 NLR 352

20 It was further emphasized the power of the court to summon the surveyor to whom the commission was issued and drew the attention to the obvious requirement that any plans which the parties may seek to put in evidence must be marked if necessary for their case, and duly proved if objected to.

21 Balachandra Archchige Dona Gnanawathie v. Ratnayake Mudiyanselage Punchi Banda 763/764/765/99(F) decided on 02.12.2015

22 Jamadeen Abdul v. Abdul Majeed (2010) 2 SLR 333

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THE ROLE OF JURORSIN THE CONTEXT OF SOCIAL MEDIA

Keerthi Kumburuhena LL.M (Aberdeen), Magistrate, Bandarawela.

Serving as a juror is a prestigious position and considered a ‘liability’ of citizen1 and therefore jurors should avoid improper dealings with the accused in person or over the phone or internet including social media as such communication could impact upon their independence. Jurors who communicate with the parties upon the subject of the trial would be guilty of contempt of Court. In other words, comments made by jurors in respect of pending legal proceedings in which they are a part of, constitute an offence. Once an American juror was found guilty of contempt of Court for posting the following comment on Facebook,

“Actually excited for jury duty tomorrow…it’s gonna be fun to tell the defendant they’re guilty…: P”.2

Jurors should be more concerned of their behaviour in social media. If jurors were found guilty for contempt of Court committed by improper communication via social media upon the subject of the trial, they could be served with a custodial sentence and their service as a juror would be terminated. Jurors should keep in minds that if they were to suffer a term of imprisonment more than one month, they would never be able to serve as jurors forever.3 According to a research, 62% of the jurors were not aware of recent prosecutions of jurors. In other words, only 38% of jurors were aware of news and stories about jurors acting improperly.4

Offence Defined

In case where the jury is permitted to separate during the course of any trial, Court has to assure that the jurors may be first sworn in or affirmed not to communicate with any person other than a fellow juror upon the subject of the trial during such separation.5 According to Section 227 (3) of the Code of Criminal Procedure Act No.15 of 1979 of Sri Lanka,


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“If any such juror shall hold any such communication with any person other than a fellow juror or if any person other than a fellow juror shall hold any such communication with any such juror, such juror or person as the case may be deemed to be guilty of a contempt of Court and shall be punishable accordingly”.6

Not only the jurors but also any other person or entity has no unfettered right to publish judicial proceedings.7

Recent Sentencing Of Jurors Many jurors around the world are being sentenced due to improper

communication of criminal matters they are involved in as jurors. The reason for such sentencing is the substantial risk of prejudice bearing upon the case.

In Attorney-General v Joanne Fraill,8 the British Court sentenced a juror to eight months imprisonment after being found guilty of contempt of Court as she had communicated with a defendant through Facebook. In 2017, the Attorney General of UK Jeremy Wright QC had requested Judges, solicitors and victims’ groups to submit evidence about the impact of social media on criminal trials. In Attorney General v. Stephen James Pardon,9 a juror was sentenced to a period of four months’ imprisonment for disclosing juries’ deliberations to a defendant.10

Even obtaining information about a defendant’s previous conviction from the internet could create a potential risk of being prejudiced in respect of such defendant.11 In Attorney General v. Theodora Dallas,12 a juror was jailed for six months for contempt of Court as she had conducted a research on the accused over the internet and found information regarding a previous conviction of the accused and then disclosed them to other jury members. Misuse of the internet by a juror is always a serious irregularity and an effective custodial sentence is virtually inevitable to ensure that the integrity of the process of trial by jury is sustained.

In Regina v. Adem Karakaya,13 Court held that the material obtained by the juror from the internet after the jury had retired, contravened the principles which prohibit the use of information, potentially relevant to the outcome of the case, privately obtained out of Court by a juror, as well as the reception of further material after the jury’s retirement.

The Imposition Of Penalties Upon Them

In view of the Judicature Act No. 02 of 1978 of Sri Lanka, every High Court shall have the power and authority to take cognizance of and try in a summary manner any offence of contempt committed against or in disrespect of its authority, and on

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conviction, to commit the offender to jail for a period not exceeding five years or a fine not exceeding five thousand rupees or both such imprisonment and fine.14

In addition to the High Court, Article 105 (3) of the Constitution has conferred powers to the Court of Appeal to punish for contempt of any Court, Tribunal or Institution a term of imprisonment or a fine or both as the Court may deem fit.15 The said Article shall not prejudice or affect the rights vested by any law in such other Court, Tribunal or Institution to punish for contempt itself.16

The Removal Of Errant Jurors

If the accused or prosecution notices that a juror’s conduct was improper, they could immediately report it to Court. In terms of Section 211 of the Code of Criminal Procedure Act No.15 of 1979, parties could object the appointment or continuation of a juror inter alia if there is some presumed or actual partiality in the juror,17 or if the juror was convicted of any offence which in the opinion of the judge renders him unfit to serve on the panel of jurors18 or any other circumstances which in the opinion of the judge renders him unfit as a juror.19 For instance, in the aforesaid matter of Attorney-General v. Joanne Fraill,20 the defendant Sewart informed Court through her solicitor about the Facebook communication between her and the juror Frail.

Every objection raised against a juror shall be decided by the Judge and such decision shall be recorded and be final.21 If the objection is allowed, then the place of such juror shall be substituted by any other juror.22 If in the course of a trial by jury at any time before the return of the verdict, any juror from any sufficient cause is prevented from attending throughout the trial, the Judge may either order a new juror be added or discharge the jury and order for a new jury to be selected.23 Consequently, if a juror was to deliberately avoid attending proceedings after having communications with the accused upon the subject of the trial or being unduly influenced by such communication, then he or she could be removed by Court with immediate effect.

Proof Of Communication With The Accused

Jurors’ contempt of Court by communicating with the accused upon the subject of the trial could now be easily proved as digital evidence is admissible in our Courts. According to Section 5 (1) of the Evidence (Special Provisions) Act No. 14 of 1995 of Sri Lanka, in any proceeding where direct oral evidence of fact would be admissible, any information contained in any statement produced by a computer and tending to establish that fact shall be admissible as evidence of that fact.24 Hence, messages or chat history between jurors and the accused found on the Facebook,


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Twitter, LinkedIn, WhatsApp, Skype, Viber or any other communication platform could be used against jurors if such conversations were made upon the subject of the trial. Although not particular in the realm of juror contempt, it was held in many cases that digital evidence could be admitted in Sri Lanka.25

According to Section 4 (1) of the said Act, in any proceeding where direct oral evidence of a fact would be admissible, any contemporaneous recording reproduction thereof, tending to establish that fact shall admissible as evidence of that fact. In Abeyagunawardane v. Samoon and Others,26 it was held by the Court of Appeal, that admission of video recordings was governed solely under the Evidence (Special Provisions) Act No. 14 of 1995. Additionally, even audio itself has been admitted by Courts. In Abu Bakr v. Queen,27 it was held that contemporaneous recording of speeches could be admitted as evidence. In the matter of In re S.A. Wickramasinghe 1954, Court held that an electrical recording of speech made on a tape recorder could be admitted as evidence.28

Freedom Of Speech Enjoyed By Jurors And Its Limits According to Article 14 (1) (a) of the Constitution of Sri Lanka, every citizen

is entitled to the freedom of speech and expression including publication.29 Article 19 of the Universal Declaration of Human Rights says: ‘everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’.30 Hence, jurors could exercise the said right to freedom of expression without interference. However, exercise and operation of the right to free speech is subject to restrictions mentioned in Article 15 (2) of the Constitution. Accordingly,

‘The exercise and operation of the fundamental right declared and recognized by Article 14(1)(a) shall be subject to such restrictions as may be prescribed by law in the interests of racial and religious harmony or in relation to parliamentary privilege, contempt of Court, defamation or incitement to an offence’.31

The consequence is, that the juror concerned loses his freedom of expression laid down in Article 14 (1) (a) of the Constitution, if he is found guilty of contempt of Court which is a restriction imposed upon him by Article 15 (2). Therefore, the jurors’ Facebook posts regarding judicial proceedings should be fair.

‘Active’ And ‘Passive’ Awareness Of The Case

There is a distinction between the active searching and the passive awareness of a case. Professor Cheryl Thomas has defined the former as jurors actually seeking for

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case-related information, while the latter as jurors seeking information concerning their case online during trial.32 In addition to the Facebook and internet, jurors could be actively or passively aware of the stories related to their case in newspapers, television and radio. On many occasions jurors were questioned even for the use of their mobile phones during deliberations.33

When it comes to the internet, not only the Facebook but also other social networking systems such as Twitter, LinkedIn, WhatsApp, Skype and Viber could provide facilities where juror could be either actively or passively aware of the case and of the accused. If a juror is personally aware of any relevant fact, it is his duty to inform the Court regarding that and in such a case he may be sworn and examined in the same manner as any other witness.34

The main responsibility of the Jurors is to decide as to which view of the facts is true and then to return the verdict.35 In other words, their role is to determine all questions of facts pertaining to the case.36 Generally speaking, in a criminal proceeding, the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character.37 In Roshan v. The Attorney General,38 it was held that evidence concerning the bad character of the accused is extremely prejudicial to the interests of the accused and would adversely affect the right of an accused to a fair trial.39

However, if a juror becomes aware of the bad character of an accused via social networking, it might affect the impartiality of the juror when determining the questions of fact as to whether the accused may be guilty of the crime. Hence, a juror’s active involvement of personal research on the bad character of the accused may leave reason for the accused to object the appointment or the continuation of the said juror through the proceedings.

In contrast, an argument could be advanced by a juror that although he was engaged in active research about the accused, the outcome of research had not been disclosed to fellow jurors. In other words, a juror could defend himself by proving that there would be no improper disclosure of information to other members of the jury or third parties. Such a defence may sometimes mitigate the seriousness of the offence of contempt of Court if there is no miscarriage of justice. In Regina v Jay Marshall and Robert Crump,40 it was held that, in order to convict a juror for contempt of Court, there should be a real possibility that the jurors or any of them may have been influenced improperly by the online materials.

Preventing Juror Contempt

The contempt of Court by Jurors could be prevented by providing more information to jurors what they should do and what they should not do during jury


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service. According to the Criminal Procedure, the jury should be guided and directed by the Judge.41 Especially where the jury is allowed to separate during the course of trial, in addition to the advice to avoid holding improper communication upon the subject of the trial, the Judge could advice not to engage in active research on the aforesaid subject and not to disclose the outcomes of such research to fellow jurors or third parties. Such an advice would essentially support the jurors to be aware of their limits in the realm of social media.

Furthermore, the Judge could specifically guide the jury on which active searches are prohibited, and which are permissible. For instance, jurors could look for information about the aspects of their jury service, Court locations and transport services.42 The Judge has to advice the jury to refrain from the active searches such as inquiring about the Judge, prosecuting and defence counsel, legal terms and aspects of the case because such a type of active searches could have an impact upon the jurors’ impartiality.

Additionally, guiding booklets could be provided to the jury which would direct them to avoid carrying any mobile phones, laptops, iPods or any such device with the capability of connecting the internet to the jury room.43 For instance, the UK Jury Service Booklet mentions that,

“The judge will tell you that you do not discuss the evidence with anyone outside of your jury either face to face, over the telephone or over the internet via social networking sites such as Facebook, Twitter or Myspace. If you do this, you risk disclosing information, which is confidential to the jury”.44 Not only inside the Court room, but also when the Jurors are away from Court,

they should not discuss the case with anyone either face to face or over the telephone or over the internet via chat lines such as the Facebook, etc.

In addition to guiding booklets, online information could be used to warn Jurors to avoid improper communication upon the subject of the trial. For example, the UK Government Information Portal contains a separate section for Jury Service which includes explanations on adverse consequence of discussing matters pertaining to the trial with anyone other than fellow jurors. It says:

“Don’t discuss the trial with anyone until it’s finished, except with other jury members in the deliberation room. After the trial you mustn’t talk about what happened in the deliberation room, even with family members. You can talk about what happened in the Courtroom. Don’t post comments about the trial on social media websites like Facebook or Twitter - even after the trial’s finished. This is contempt of Court and you can be fined or sent to prison”.45

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If a juror was to obtain information from some outside source such as the Google, Facebook, Twitter, or from any traditional source such as books that would not be fair to the defendant or to the public to whom he represents. It would not in other words be a fair trial.46 Due to curiosity or bad faith, jurors in certain occasions, ignore the instructions given by the Judges.47 Therefore, in the prevention of juror contempt, jurors should have a higher degree of self-control as well.

Conclusion

Serving on a Jury does not mean jurors are completely prohibited from using any communication devices while doing jury service. It would be unreasonable if social media is not accessible to jurors, simply because they are serving on a jury. Therefore, Jurors could use any communication facilities like phones and internet including social media as long as they are not discussing the subject matter of the trial with any person other than a fellow juror.

Jurors should ensure that there is no miscarriage of justice which resulted by their personal communication with the accused or any person other than a fellow juror upon the subject of the trial. They should exercise self-restraint in respect of communication including social media. Court could prevent this issue by providing specific guidelines to jurors to avoid being involved in improper communication and in active research upon the subject of the trial during the pendency of the action.

Bibliography

1. Cheryl Thomas, ‘Avoiding the Perfect Storm of Juror Contempt’ [2013] 6 Crim. L.R. 483,490.

2. GOV.UK, ‘Jury service’ <https://www.gov.uk/jury-service/discussing-the-trial> accessed on 05 September 2018.

3. HM Courts and Tribunals Service UK, Your Guide to Jury Service (HMCTS 2011) page 6, <https://formfinder.hmctsformfinder.justice.gov.uk/5222-eng.pdf>accessed on 17 September 2018.

4. Judicial College, Crown Court Bench Book: Directing the Jury, (First supplement, Judicial College, October 2011) 10.

5. Marcy Zora, The Real Social Network: How Jurors’ use of Social Media and Smart Phones affects a Defendant’s Sixth Amendment rights, (2012) 2 Illinois law review 577, 594.

6. Martha Neil, ‘Oops. Juror Calls Defendant Guilty on Facebook, Before Verdict’ American Bar Association Journal (Sept. 2, 2010) <http://www.abajournal.com/news/article/oops._juror_calls_defendant_guilty_on_facebook_though_verdict_isnt_in> accessed 23 August 2018.


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Endnotes

1 Code of Criminal Procedure Act No. 15 of 1979 of Sri Lanka, s 244.2 Martha Neil, ‘Oops. Juror Calls Defendant Guilty on Facebook, Before Verdict’ American

Bar Association Journal (Sept. 2, 2010) <http://www.abajournal.com/news/article/oops._juror_calls_defendant_guilty_on_facebook_though_verdict_isnt_in> accessed 23 August 2018.

3 Code of Criminal Procedure Act No. 15 of 1979 of Sri Lanka, s 245 (k).4 Cheryl Thomas, ‘Avoiding the Perfect Storm of Juror Contempt’ [2013] 6 Crim. L.R.

483,490.5 ibid s 227 (2).6 Code of Criminal Procedure Act No. 15 of 1979 of Sri Lanka, s 227 (3).7 Hewamanne v De Silva [1983] 1 Sri.L.R. 1, 68 (Wanasundera J).8 Attorney General v Joanne Fraill, Jamie Sewart [2011] EWHC 1629 (Admin), [2011] 2

Cr. App. R. 21. para [54]- [57] (Lord Judge CJ).9 [2012] EWHC 3402 (Admin).10 ibid [20] (Lord CJ).11 Ketan Thakrar, Rizwan Yusoof v Regina [2008] EWCA Crim 2359 [17] (Hooper LJ).12 [2012] EWHC 156 (Admin); [2012] 1 W.L.R. 991; [2012] 1 Cr. App. R. 32; [2012] A.C.D.

21.; para [40]-[47] (Lord CJ).13 [2005] EWCA Crim 346, [2005] 2 Cr. App. R. 5 [27] (Judge LJ).14 Judicature Act No. 02 of 1978 of Sri Lanka, s 18.15 The 1978 Constitution of Sri Lanka (as amended in 2015), art 105 (3).16 ibid 105 (3) Proviso.17 Code of Criminal Procedure Act No.15 of 1979, s 211 (a).18 ibid, s 211 (d).19 Code of Criminal Procedure Act No.15 of 1979 of Sri Lanka, s 211 (f).20 Attorney General v Joanne Fraill, Jamie Sewart, [2011] EWHC 1629 (Admin), [2011] 2

Cr. App. R. 21.21 ibid s 212 (1).22 Code of Criminal Procedure Act No.15 of 1979 of Sri Lanka, s 212 (2).23 ibid s 215.24 Evidence (Special Provisions) Act No. 14 of 1995, s 5 (1).25 Marine Star (Pvt) Ltd v Amanda Foods Lanka (Pvt) Ltd, [H.C. (Civil) 181/2007/MR]

(K.T. Chithrasiri, HCJ); Millennium Information Technologies Limited v DPJ Holdings (Private) Limited [HC (Civil) 257/2009/MR]; and People’s Leasing Company Limited v Muthuthantrige Iran Fernando and Others, [H.C. (Civil) 201/2008/MR] (Ruwan Fernando HCJ).

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26 [2007] 1 Sri. L.R. 276, 287 (Imam J).27 (1953) 54 NLR 566 (Gunasekara J).28 (1954) 55 NLR 511 (Gunasekara J).29 The Constitution of Sri Lanka, art 14 (1) (a).30 Universal Declaration of Human Rights 1948, art 19.31 The Constitution of Sri Lanka, art 15 (2).32 Cheryl Thomas, ‘Avoiding the Perfect Storm of Juror Contempt’ [2013] 6 Crim. L.R. 483, 492.33 R. v Kevin McCluskey (1994) 98 Cr. App. R. 216.34 Code of Criminal Procedure Act No. 15 of 1979, s 225.35 s 232 (a).36 s 232 (c).37 Evidence Ordinance 14 of 1895 (as amended in 1999), s 54.38 [2011] 1 Sri. L.R. 364. 39 ibid, 379 (Sarath de Abrew J). 40 [2007] EWCA Crim 35, [12] (Hughes).41 ss 229, 220 (1), 217, 224 (1), 231, 235(2).42 Cheryl Thomas, ‘Avoiding the Perfect Storm of Juror Contempt’ [2013] 6 Crim. L.R.

483,493.43 HM Courts and Tribunals Service UK, Your Guide to Jury Service (HMCTS 2011) page

6, <https://formfinder.hmctsformfinder.justice.gov.uk/5222-eng.pdf>accessed on 17 September 2018.

44 ibid page 4. 45 GOV.UK, ‘Jury service’ <https://www.gov.uk/jury-service/discussing-the-trial> accessed

on 05 September 2018.46 Judicial College, Crown Court Bench Book: Directing the Jury, (First supplement, Judicial

College, October 2011) 10.

47 Marcy Zora, The Real Social Network: How Jurors’ use of Social Media and Smart Phones affects a Defendant’s Sixth Amendment rights, (2012) 2 Illinois law review 577, 594.


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AN EQUITABLE BALANCE BETWEEN CONSTRUCTIVE TRUST LAW REGIME AND

DYNAMIC LEGAL STRATEGIZING DIMENSION

H.K.M Harshana de AlwisDistrict Judge/Magistrate of Kebithigollawa

Unique cross operation of the sphere of Land Law governed by Roman Dutch Law in conjunction with the English Law equity in the sphere of Constructive Trusts under Chapter IX of the Trusts OrdinanceNo. 17 of 19171, multiple categories constructive trusts and unlimited scope of the sphere of Constructive Trusts in terms of Section 96 of the Trusts Ordinance permitting un-expressed or residuary trusts provide fertile soil for our competent attorneys in our systemto use this equitable sphere as a dynamic tool of legal strategizing. Especially on account of complicated disputes involving land fraud, deception and informal agreements for various ends, the pragmatic significance of equitable regime of constructive trusts can not be ignored in relation to Sri Lankan land law litigants who suffer deprivation their equitable rights. Being driven by various socio-economic factors such as informal finance, family relationships, confidence-based transactions etc.

People are compelled to entertain intentions contrary to express notarially executed documentation or otherwise. Thus, such compelling and genuine scenarios are not frown upon by Court over many years but a heavy caution is exercised owing to the potential of the constructive trust law being abused in pursuance of ulterior motives of legal strategizing. Pursuant to hyper expansive capacities of this equitable regime, Constructive Trusts arguments are often engineered by our competent legal professionals with dynamic creatively for the purpose of giving effect to the ends of their clients however ulterior or ingenuine those may be. Thus, constructive trusts are also engineered in a manner interfering with Law relating to Co-ownership, Partition Law and succession Laws relating to intestate dispositions. Whether or not such arguments could be finally entertained by Court genuine unequivocal inferences of equity demonstrated in attendant circumstances can neither be lightly

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dealt nor refused2. At times these arguments extend to Stand Land Statutes like Land Development Ordinance in express contravention with the intention of legislature and needless to state that such efforts are focused in frustrating a genuine legal process of which the ultimate end is merely place the burden of litigation on the genuine party as pressure strategy.

In the lights of the above, it is obvious that the scope of operation of this constructive law regime must operate within desirable restrictions and the Atristotilian dictum that passion must not supersede reason seems the desirable guide for the legal strategists. Lord Chancery’s exception to the rule in equity, which is Law of Equitable Trusts, is defined as one of facets of Modern Natural Law in operation. As if the natural was criticized for being the harlot at disposal of everyone within its unlimited scope3, it is the paramount duty of court prevent the abuse of constructive law regime and permit its operation in desirable limits in the process of giving life to this inevitable equitable regime that must never be lightly perceived.

The constructive trusts in terms of chapter IX of the Trusts Ordinance are developed on two striking fundamental elements. They are the ‘attendant circumstances’ demonstrating an intention of authors contrary to the express documentation and the exception to rule of exclusion of parole evidence against notarially executed documentation under Section 91 and 92 of the Evidence Ordinance as well as the exception to requirement of formalities under Section 5 of the Trusts Ordinance and Section 2 of the Prevention of Frauds Ordinance. On account of the unlimited scope of equitable concerns involving constructive trusts, desirable limits have been maintained by our superior courts by contextual bound interpretation to attendant circumstances and thereby exercising a contextually bound discretion over whatever the unlimited equitable interpretation resorted.

This is observed in series Sri Lankan cases in the sphere of constructive trusts ranging from Land mark cases of Valliamma vs. Abdul Majeed, Daywathie vs. Guneskera4, Mendis& others vs. Parameswami5 to recent cases like BertnedetteValanberg vs. Hapuarchchige Antony, SarojaNisansala6 vs. Aberfoyle, SenadheerageChandrika7Sudharshani vs. MuthukudaHerathetc. Although a considerable part of said development revolves around Section 83 and 84 of Trusts Ordinance depending on the contextual equity,the potential our other different categories of constructive trusts being resorted is also analyzed by our court within desirable limits. This tendency could be observed in the approach of our superior courts in respect of residuary trusts or unexpressed constructive trusts under Section 96 of the Trusts Ordinance as explicit in cases like Seelachy vs. Visuvanathan8, where it was discerned that said Section is residuary one without any limitation in recent


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aftermath of enactment of Trusts Ordinance and Jonga vs. Namduwa.9 The pre-trust ordinance approach involving Implied Trusts under Roman Dutch Law with the controversial view that English Trusts are the offspring of Roman feideicommissa as well as of pre-trust ordinance terminology of Implied Trusts and subsequent specific terminology under Trusts Ordinance such as Constructive Trusts, Resulting Trusts being used interchangeably in original courts seem to have developed a further confusion in addition to legal strategizing arguments. Undoubtedly, the legal strategizing applications involving injunctive relief over Constructive causes of action, cross interference of constructive claims against Co-owners in the partition law context, constructive trust claims in relation to special laws like Land Development Ordinance etc. to disguised and hidden relief creates the operation of this regime complex and complicated. Thus, the purpose of this research paper is as follows:1. Ascertaining a desirable guideline for the original court in entertaining causes

of action under Constructive Trusts in the first instance especially in the light of applications involving injunctive relief, hidden relief etc.;

2. Distinguishing genuine causes of action under constructive trusts from misleading legal strategizing claims with ulterior motives and ascertaining the subjective concerns or the mind set up of legal strategists for the purpose cautious handling of such scenarios;

3. Comprehending the range and scope of the constructive trusts Ordinance in view of the various categories under chapter IX and the possibility cross interference of thepotential of Constructive Trust claims to exist in harmony with Laws relating to Co-ownership, Intestate succession laws in the interests of equity; In accomplishing said objectives, two pragmatic instances involving

constructive trust cases with legal strategizing shape confronted by an original court in a remote and isolated jurisdiction will be analyzed in detail. A brief analysis of the historical evaluation in sphere of equitable constructive trusts, the approach of our superior courts over the same and its multiple categories under chapter IX are ascertained in the process.

The Nature and Evolution of Constructive Trusts in Sri Lanka

The nature of Constructive Trusts frequently resorted by Sri Lankan Court mainly revolves around Constructive Trust in terms of Section 83 and Resulting Trusts under Section 84 of the Trusts Ordinance. However, Chapter IX of the Trusts Ordinance reflects 15 categories of Constructive Trusts, which is of broader scope in Comparison of English Law Trusts have considerably enlarged the of Ceylon.10Almost all said Constructive Trusts are grounded on the following striking elements:

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1. “Attendant Circumstances” that demonstrate transferor or testator(bequeathing) did not intend to dispose of the beneficial interest to the property concerned;

2. Exception to the exclusion parole evidence in disproving a notarially executed document in terms of Section 91 and 92 of the Evidence Ordinance;

3. Neither formalities in respect of express trust under Section 4 and 5 of the Trusts Ordinance nor Section 2 of the Prevention of Frauds Ordinance is applicable when the circumstances operate to effectuate a fraud in terms of Section 5(3) of the Trusts Ordinance;

The land mark cases of ValliammaActchchi vs. AbdhulMajeed, where the original action was instituted upheld that oral evidence was admissible to establish the trust on the basis that the formalities required in constituting a valid trust relating to land is found in Section 5 of the Trusts Ordinance but not in Section 2 of the Prevention of Frauds Ordinance and therefore, under Section 5(3) formalities pertaining Section 5 of the Trusts Ordinance is inapplicable when a fraud is effectuated and even a writing is unnecessary that Section 91 and 92 of the Evidence has no-application in this regard. The underlying principles demonstrate the following equitable application of the law;

i. The widow seeking to ignore oral trust between her diseased husband and the Plaintiff-Respondent and to retain the property in question is effectuating a fraud. Thus, definition of fraud seems lighter that disregarding of the oral trust is sufficient to establish trust;

“She was no doubt entitled to require that the trust be proved against her, who may have had no personal knowledge about the matter, but, once the trust is established, it would be a fraud on her part to ignore the trust and to retain the property for the estate11.”

ii. The general application Section 2 of the Prevention of Frauds Ordnance, which is the general provision covering formalities as to agreements pertaining to immovable property was distinguished from the from trusts under Trusts Ordinance on the basis that Section 5 is special/specific section governing the formalities in relation to trusts. Thus, such formalities are not applicable on account of the fraud.

iii. Even a writing was unnecessary in establishing a trust that Section 91 and 92 of the Evidence Ordinance, which excludes the admission of oral evidence against written grants and dispositions of immovable property;

iv. Although the principle ex-turpicausa non orituractio (no-polluted hands could touch the fountains of justice) as the alleged intention of the Plaintiff and the


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diseased husband of the Respondent widow was to defraud unsecured creditors on the basis no-creditor was defrauded and/or the fraudulent intention was not in fact carried out it was observed that said doctrine has no-application;

In Valliamma case, the no-specific reference was made to Constructive Trusts in terms of Chapter IX of the Trusts Ordinance. In far extensive equitable application in Daywathie vs. Gunesekera12, where the outright transfer in favour of the 2nd Defendant mother in consideration of sum advanced to the Plaintiff upon the oral understanding to re-convey in being paid full the sums advanced, the Court of Appeal refused applying constructive trusts on the basis that the agreement in question was pure and simple agreement to re-transfer. However, in the Supreme Court, the equitable law application was extended with direct reference to constructive trusts in terms of section on the basis that;

a. The most material terminology used in Section 83 of the Trusts Ordinance, is that it cannot be reasonably inferred with the attendant circumstance that the transferor did not intend to dispose of the beneficial interest therein;

b. The Prevention of Frauds Ordinance and Section 92 of the Evidence Ordinance do not bar parole evidence to prove a constructive trust and that the transferor did not intend to dispose of the beneficial interest of the property;

c. Extrinsic evidence to prove attendant circumstances can be properly received in evidence to prove a resulting trust;

d. The relaxation of the rule as formalities in relation to express trusts by the provisions of Section 5(3) of the Trusts Ordinance, so as to effectuate a fraud had already persuaded court to treat Section 5(3) as an exception to the application of Section 2 of the Prevention of Frauds Ordinance and Section 92 of the Evidence Ordinance as demonstrated cases ranging from Theevapillai vs. Sonnapillai13, Valliamma vs. AbdhulMajeed, Fernando vs. Thamel 47 NLR 297 etc.

Careful scrutiny of said parameters pertaining constructive trusts in said cases demonstrate that underlying rationale for said criteria is an equitable interpretation of both Section 2 and Prevention of Frauds Ordinance and Section 91 and 92 of the Evidence. This is because the purpose of Prevention of Frauds and said evidentiary provisions is to prevent frauds and it would defeat very purpose said laws if the same provisions are used indefending a fraud or any ulterior motive of such nature.

His Lordship Weeramantry quoting Ohlmus vs. Ohlmus (1906) 9NLR 183 In the word of Grenier A.J Equity always relieves in the case of fraud and it seems to me

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a monstrous proposition that an Ordinance, which was intended to prevent frauds should be invoked in order that a fraud may be perpetrate under its shelter”14

In the recent Supreme Court decision of SeenadheerageChandrikaSudharshani vs. MuthukudaHerath15, the rationale for the relaxation of the exclusion of parole evidence rule is twofold;

a. If parole evidence is barred it would be impossible to prove constructive trusts and the chapter IX of the Trusts Ordinance would be rendered nugatory;

b. Courts have been disposed towards treating the circumstances, which give rise to a claim that a constructive trust has arisen, as falling within the ambit of provisos to Section 92 of the Evidence Ordinance;

A comparison of English Law Constructive trusts with Sri Lankan constructive trusts regime nearly forty years ago revealed that, the categories of resulting and constructive trusts in Ceylon are wider than in English Law16. On the basis that there are only two types of trusts known to the English Law namely constructive trusts and resulting trusts, apparently Sections 83 to 96 of the Trusts Ordinance, which describe 15 categories of trusts has considerably enlarged the Law of Ceylon17.

Influential Categories of Constructive Trusts in Sri Lanka:

1. Implied Trusts under Section 83 of the Trusts Ordinance:

83. *Where the owner of property transfers or bequeaths it,

*and it cannot reasonably be inferred consistently with the attendant circumstances that he intended to dispose of the beneficial interest therein,

*the transferee or legatee must hold such properly for the benefit of the owner or his legal representative.

This is the commonest category of constructive trust resorted in Sri Lanka, which has already been ascertained. Perera vs. Fernando and others 2011 BLR 263

2. Resulting Trusts under Section 84 of the Trusts Ordinance:

• Where property is transferred to one person

• for a consideration paid or provided by another person,

• and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee,

• the transferee must hold the property for the benefit of the person paying or providing the consideration.


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The person relying on Section 84 of the Trusts Ordinance must only prove;a. he provided consideration;b. It was not for the benefit of the transferee18.

The English Law Doctrine of Presumption of Advancement is the exception to this rule where the transferee and the person who provided consideration standing in Loco-parentis relationship and such relationship negate intention to retain beneficial interest. Based on the loco-parentis relationship, in Muthalibu vs. Hameed19, in pursuance of the pre-trust ordinance case Fernando vs. Fernando, Dias SPJ held that the doctrine on advancement is and always has been part of the law of Ceylon. In BernedetteValenberg vs. Hapuarachchige Antony20 it was held that the presumption of advancement in favour mistress though available in England is not part of Sri Lanka that Section 2 of Trusts Ordinance cannot be utilized to bring in English Law Section 2 of the Frauds Ordinance is not meant to govern trusts arising under chapter IX of the Trusts Ordinance i. e. constructive or implied trusts. A person has therefore to make out a case falling within the provisions of ss 83 to 96 of the Trusts Ordinance.

In Mendis vs. Paramaswami21, It would appear from the language of section 84 of the Trusts Ordinance that the state of mind that is relevant for the purposes of that section is the state of mind the person paying the consideration had at the time he paid it. That state of mind must be established by contemporaneous statements or declarations. Statements made long after the transaction are not relevant. Under our Evidence Ordinance evidence may be given in any suit of the existence or non-existence of every fact in issue, and of such other facts as are declared to be relevant by that Ordinance and of no others. (Section 5).( pg. 307)

Constructive Trust upon Transfer for Illegal Purpose:

Constructive trusts in terms of Section 86 of Trusts Ordinance seems to provide an exception to ex turpicausa non-orituractio(no-polluted hands could touch the fountains of justice such as imparidelictioportioest condition defendentis (when both parties are at fault-transferor is not so guilty as the transferee). In Valliamma’s case exturpicausanon-oritur action rule was argued against the transferor and although no-specific reference was made to Section 86 of the Trusts Ordinance, a distinction was made between situations where an intention to defraud was entertained but in fact no-creditor was actually defrauded.

86. *Where the owner of property transfers it to another for an illegal purpose, *and such purpose is not carried out into execution, or the transferor is not as guilty as the transferee, *or the effect of permitting the transferee to retain the property might be to defeat the provisions of any law,

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*the transferee must hold the property for the benefit of the transferor.In the recent case of SAROJA NISANSALA Vs. ABERFOYLE22Her Ladyship

ShiraniThilakawardena”A significant development in the modem law is that an unlawful intention, bilaterally entertained, is no longer an absolute bar to restitution. This principle was recognized for South African law in 1939 in Jajbhay v. Cassim where Stratford, C.J. declared that “the rule expressed in the maxim in pari delicto potiorest condition defendent is is not one that can or ought to be applied in all cases ... It is subject to exceptions which, in each case, must be found to exist only by regard to the principle of public policy. “Watermayer, J.A. said: “the principle underlying the general rule is that the Court will discourage illegal transactions, but the exceptions show that where it is necessary to prevent injustice or to promote public policy, they will not rightly enforce the rule.” This view has been authoritatively accepted as applicable to the law of Ceylon.”

In the aforesaid premises Her Ladyship Hon. Dr. ShiraniBandaranayake observed that An unlawful intention bilaterally entertained is no longer an absolute bar to restitution.

Advantage Gained by a Fiduciary:

Advantage gained by fiduciary.

90. Where a trustee, executor, partner, agent, director of a company, legal adviser, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained.

Illustrations to this Section demonstrate that this is the corresponding provision to the Criminal Breach of Trust under Section 388 of the Penal Code read with 389 of the same.

Advantage Gained by Qualified Owner: Section 92 seems an extension of the trust defined in terms of Section 90 in connection with fiduciaries. However, especially in the context where this extends constructive trusts in relation laws pertaining to co-ownership and partition law context this provision reflects potential to be read in conjunction with Section 96 of the Trusts and an application could be extended to multicity contexts.


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Un-expressed Trusts/Residuary Trusts where a Person in Possession not having Whole Beneficial Interest

Constructive trusts in cases not expressly provided for.

96.In any case not coming within the scope of any of the preceding sections where there is no trust, but the person having possession of property has not the whole beneficial interest therein, he must hold the property for the benefit of the persons having such interest, or the residue thereof (as the case may be), to the extent necessary to satisfy their just demands.

In Jonga et al Vs. Nanduwaet al23, where the 1st plaintiff transferred the land pertaining to the dispute to the defendants with the right reserved for repurchase (or redeem) the property within 8 years on payment of a certain sum of money and subsequently the rights of the 1st plaintiff was assigned to the 2nd plaintiff, Hon. Justice Keuneman in view of illustration (c) to said Section 96 observed the following reasons as to why the factual context is not a constructive trusts expressly covered by the chapter: i. This is not a case where the transferee is can be regarded as a trustee. Section

3(a) of the Trusts Ordinance defines the term trust and no-questions of beneficial ownership and equitable rights arise in the present case;

ii. While the language in the document negatives the existence of mortgage/security as the same presupposes the continuing existence of debt;

iii. The dominium in the property passed to the defendant;In said circumstances, His Lordship Keuneman held that the scope of Section

96 of the Trusts Ordinance is a Section of wide application under the following premise;

“The very terms of the grant here set out the condition, and the defendant must be regarded as having taken possession under the grant coupled with the condition. I think the defendant, who entered into possession under these circumstances, owed this duty to the first plaintiff, viz., to have the property available for the condition to be carried into effect. I do not regard this as a mere personal right vested in the first plaintiff, In fact the defendant did not receive the “whole beneficial interest but only the beneficial interest burdened with the condition, and this fractional portion deducted enured to the benefit of the first plaintiff. Although, in strict law, if this was treated merely as a contract, the condition could be defeated under the Ordinance of Frauds, yet in equity the obligation in the nature of a trust can be enforced. I hold that the present case comes within the scope of section 96 of our Trusts Ordinance which is a section of wide application”.

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In this regard, His Lordship Hearse also observed in this regard that section 96 is taken from India and there it has been held that “beneficial interest “appearing in the section must not be given a restricted meaning. In my opinion the section is wide enough to cover the facts of this case. (@ pg. 131)

In Seelachchy vs. Visuanathan 23 NLR 97, where a wife governed by Thesawalami claimed that Thediathettam property acquired by her spouse in consequence of marriage had been donated to their son by said spouse irrespective of half share of said property to which she is entitled under thediyathettamand subsequently the defendant purchased the property from a public auction of mortgage execution entered against said donee son. Although the wife instituted vindicatory action claiming her half share on the basis of constructive trusts under Section 96 of the Trusts Ordinance, the majority comprising of Bertrum CJ held that despite constructive being established in her favour, such constructive trust could not prejudice a bona fide purchaser.

…… I hold that when the plaintiff ’s husband purchased the property now under consideration, he acquired it, in consequence of his marriage contract, subject to a constructive trust in favour of his wife, and that his wife was entitled to sue him for a formal conveyance of her interest, ors as Voet puts it, subject to a necessitascommunicandi.But the right so acquired by the wife could not prejudice any bona fide purchaser claiming from the donee of her husband, even though the gift to this donee was a breach of this constructive trust. (See sections 98, 65, 66, and 118 of the Trusts Ordinance.}The property was, in fact constructively and equitably partnership property. The view of the English principles of equity, now, if not previously, so.far as they relate to this subject, formally adopted into our legal system by the Trusts Ordinance, is admirably expressed in the passage cited by Mr. Bawa from Story’s Equity Juris-prudence;;--In cases, therefore, where real estate is purchased for partnership purposes, and on partnership account, it is wholly immaterial, in the view of a Court of Equity, in whose name or names the purchase is made and the conveyance is taken; whether in the name of one partner or of all the partners; whether in the name of a stranger alone or of a stranger jointly with one partner. In all these cases let the legal title be vested in whom it may, it is in equity deemed partnership property, not subject to survivorship; and the partners are deemed the cestuis qui trust thereof.

“A Court of law may, nay must in general, view it only according to the state of the legal title. And if the legal title is vested in one partner, or in a stranger, a bonafide purchaser of real estate from him, having no


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notice, either express or constructive, of its being partnership property, will be entitled to hold it free from any claim of the partnership. But if he has such notice, then in equity he is clearly bound by the trust, and he takes it cum onere, exactly like every other purchaser of a trust estate,,. Story-Equity Jurisprudence, s. 1207.

Attendant Circumstances

Discernably the Constructive Trusts seems the modern operation of natural law that the scope of equity and the same is inevitably reflected in Attendant Circumstances the scope of which is unlimited. Thus, analysis of Attendant Circumstances that have been considered so far by Courts would provide vital guide lines in ascertaining desirable application constructive trusts as opposed to mere legal strategizing:

An explicit definition of ‘‘attendant circumstances” was observed Hon. Justice Prasanna Jayawardena PCJ in said Case with reference to Black’s Law Dictionary and cases like Muttamah vs. ThyagarajaI. “The words ‘attendant circumstances’ can broadly be described as meaning the

facts surrounding transaction”. In Black’s Law Dictionary (9th Edition) II. The word ‘attendant circumstances’ as used in American Law, have been defined

as “A fact that is situationally relevant to a particular event or occurrence.III. In Muttamah vs. Thiyagarajah Hon. Justice Basnayake CJ “attendant

circumstances” are to my mind the circumstances that precede or follow the transfer but not too far removed in point of time to be regarded as attendant, which the expression in this context may be understood as “accompanying” or connected with”

IV. His Lordship in view of said definition observes:Whether a circumstance is attendant or not would depend on facts of each

case. Thus, they are contextually bound.

Objective Test and Reasonable Man’s Test in relation to Attendant Circumstances:

In Senadheera’s Case, the test of evidence in terms of Section 83 of the Trust Ordinance denied the following test or the criteria in proof of attendant circumstances:

a. The Court must be satisfied that the attendant circumstances clearly point out the conclusion that the owner did not intend to dispose of the beneficial interest. If the attendant circumstances, unequivocally point out that conclusion, a constructive trust would have arisen;

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b. However, if the attendant circumstances fail to unequivocally establish that the owner did not intend to dispose of the beneficial interest or in order words there is doubt as to conclusion court usually, reject that a claim, a constructive trust exists;

c. Section 83 requires to withstand the Objective Test. Thus, it must be plainly clear to the reasonable man that the owner did not intend to part with the beneficial interest in the property. A secret intention or hidden intention to retain the beneficial interest will not do;

d. The transferee is judged as judged here as standing in the shoes of reasonable man. If a reasonable man must have known from the attendant circumstances that the owner did not intend to dispose of the beneficial interest, the transferee is deemed to hold the property upon a constructive trust

e. In pursuance of the objective test, more reliance on facts can be ascertained from the evidence rather than the unsubstantiated claims from the witness box;

Pragmatic Guide Line in Determining Genuine Constructive Trust

While the first factual scenario seemed to have been focused entirely upon legal strategizing purposes for applying pressure when no-real legal remedy is available to the Plaintiff the 2nd factual scenario reflected an unequivocal inference of equitable concerns that shocks the conscience of court and thereby permits amendment of pleadings in terms of constructive trusts.1st Factual Scenario:

Although Injunctive Relief based on constructive or implied trust was pleaded, no-specific provision in the Trust Ordinance wasreferred in the pleadings. Thus, it was open to Court to determine under which provision of the Trust Ordinance Constructive Trust is created. However; the striking feature was that an Implied Trust was pleaded under Land Development Ordinance No. 19 of 1935 as amended, despite Section 169 of the Trust Ordinance, which expressly oust both trust and equitable charge. Not only said Section 169 but also Section 170 of the Land Development Ordinance that expressly oust the operation of Laws of Succession prevents all causes of action pleaded invalid. This application hyper confusing nature as the registration of lispendence through Court was prayed with the underlying intention of converting this action to partition action.

However, a strong equitable concern was raised by pleading a document wherein the original grantee under Land Development Ordinance along with all heirs who were entitled to succeed agreed that he names the 1st Defendant as his successor


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solely upon the understanding that she holds the property for and on behalf of all property. In fact a specific portion of land had already been alienated. to a 3rd party with the approval of divisional secretary under the ordinance. The Plaintiff seeks to prevent further alienation

In ascertaining rationale behind our competent attorney to adopt a disguised and misconceived design of action attention was placed on the following:• The term “Implied Trust” seems to have originated from the pre-trust ordinance

law pertaining to constructive trusts. Hon. Late Justice Weeramantry24, under the chapter Implied Trusts and Roman Dutch Law analyses the scope of said implied trusts. The question whether the doctrine of implied is part of Roman Dutch Law trusts, which has not evolved any technical terms corresponding to implied, resulting or constructive trusts, was exhaustively considered by Berwick D.J in his judgment Ibrahim Saibo vs. The Original Bank Corporation, which was adopted by the Supreme Court full bench25 of which the conclusion being that the doctrine of implied trusts is in the substance part of Roman Dutch Law. It was further held that parole evidence may be admitted without violating the Ordinance of Frauds in order to establish and create a resulting or constructive trust.

• Hon. Weeramantry further discerns that the Judgment went on the questionable basis that that the English Law Trusts are the off-spring of Roman Dutch Law, enlarged and from Roman Dutch fedeicommissa, but it is a useful guide as showing that even before the introduction of the Trusts Ordinance our law recognized the principle that the statute could not be used to effectuate a fraud26.

• It is clear that the attempt of our competent is attorney to exploit nature of the term ‘Implied Trusts’ as opposed to Constructive Trusts under the Trusts ordinance and thereby design the perception of the judge being driven into the confused notion that implied trust as opposed to constructive trusts may operate in a broader scope even extending to specific statutes irrespective of express

• prohibitions under Land Development ordinance. • Simultaneously, action is designed with the intention of developing a further

obscure perception of the judge where injunctive relief is connected with a hidden prayer for lispendence. Needless to state that this is a preposterous prayer in which this action Land Development Ordinance is attempted to be converted into a partition action in a manner defeating the provisions of the said Ordinance.

• Overall point of view of this factual scenario clearly demonstrate that focus of this action is exclusively focused on the hidden lispendence registration wherein a lispendencewas sought to be registered by Court and thereby prevent any further transactions in connection with the relevant folio in the land registry.In

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other words, the most interesting pleadings in relation to Implied Trusts and/or constructive trusts and reference to equitable relief are in fact designed to create a distorted perception of the judge and consequently, obtain hidden lispendence relief along with the notice of interim injunctions.

The significance of this action of which the soles purpose is nothing but legal strategizing provides valuable insights to Court in order to develop desirable guide lines in entertaining constructive claims based on equity. The nature of the statutes like The Land Development Ordinance is characterized two striking elements:1. In terms of Section 169 of the Ordinance, no trust or equitable charge shall be

created, declared, recognized or enforced in respect of any land alienated under this Ordinance. Thus, paramount intention of the legislature especially in the context where this ordinance focuses on state lands permits and state grants, was to prevent operation of any trust or equitable claim.

2. In terms of Section 170 of the Land Development Ordinance, it is declared that the succession to be governed entirely by this ordinance but not otherwise. Thus, no-written law, which provides for succession to land upon intestacy and no other law relating to succession to land upon intestacy shall have any application in respect of any land alienated under this Ordinance. Under Section 170(2) of the Land Development Ordinance, even the operation of Wills Ordinance is expressly excluded.

3. The invariable implication that could be drawn from these provisions is that when the legislature intends to exclude the operation equitable operation of trusts/constructive trusts from a certain sphere of law it is done through express provisions.

4. This is because other statues governing succession rights such as Matrimonial Rights and Inheritance Ordinance does not possess any corresponding provisions of this nature and therefore, this provide an opportunity for equitable regime of constructive trusts being resorted in desirable contexts. Although this is a construction involving the doctrine of ex pressiounisestexlusioalterus27, which is in fact a dangerous master but an obedient servant28, whenever a statute concerning land does not expressly oust the operations of equity or constructive trusts, the obvious conclusion that the legislature does not intend to treat the equitable rights lightly can be inferred. Therefore, without an express outer it may be presumed that the legislature does not intend to oust neither a trust nor an equitable charge of such nature.


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2nd Factual Scenario:

The Plaintiffs, who are two siblings of the family to which the Defendant belongs all sharing same parentage, sought Injunctive relief against the defendant and his wife who are alleged to have been wrongfully occupying the business premises developed/improved by the Plaintiffs along with the diseased mother. In fact, as alleged, the mother commenced business and 2nd Plaintiff subsequently joined business upon finishing her ordinary level examination. Both farther and mother died intestate. The causes of action of the Plaintiffs is focused on final relief in the nature of rei-vindicitio and/or declaration of title on the basis that the Plaintiffs had developed business along with the mother while the Defendant did not take part in any business activity. The 1st Defendant had left the house 28 years ago. However, no-reference have been made to the effect that 1st and 2nd Plaintiffs and 1st Defendants are in fact co-owners. Moreover, mere reference to the death of farther and mother and 1st Defendant’s leaving the house did not exclude the possibility of 1st and 2nd Plaintiff ’s and 1st Defendant being intestate heirs entitled to equal share of the property in question under the Matrimonial Rights and Inheritance Ordinance. Despite the specific relief pleaded demonstrating that this action is a rei-vindicatio action or a declaration to title, neither-documentary or title nor the fact that the Plaintiffs are the owners of the were specifically pleaded. None of the factual circumstances gave rise to any adverse possession of the 1st and 2nd Plaintiffs and neither a manifestation of intention to possess adversely nor any proof of un-equivocal act was pleaded on the premise of prescription. The fact that the Plaintiffs had been in possession for a considerable period of time and being ousted one month prior to the institution of this action would have given this action features of a declaration of title action. However, the failing to eliminate the inevitable conclusion that the parties to this action are co-owners provided a confusing appearance to this action and therefore, action was neither a declaration of title/rei-vandicatio nor a partition action. The entire relief took form of equitable shape with no-substantive cause of action. However, striking factual scenario giving equitable rights to the Plaintiffs were specifically pleaded. Said facts are;

A. A loan facility obtained collectively by the diseased mother and the 2nd Plaintiff for the improvement of business in the premises in question and said loan was fully settled by the 2nd Plaintiff three months before the institution of this action;

B. Another Loan Facility was obtained by the 2nd Plaintiff immediately upon settling the said loan. This 2nd loan was after the death of the mother leaving the remainder of intestate rights on 1st and 2nd Plaintiff ’s as well as on the 1st Defendant and documentation in proof of this was annexed in support;

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Said circumstances, especially prior loan for the improvement of the premises depicts an equitable claim however contrary the same may be to basic principles of land law and or rei-vindicatio actions. It noteworthy that legal strategizing mind frame of attorneys drafting and designing this action have been clouded by misconstrued equitable cause of action based on injunction. It is obvious that the intention was to confuse the factual scenario with equitable basis of injunctive relief under the English Law and thereby strategically induce court provide relief in the 1st instance being moved by perception of the judge as to factual scenario fully couloured with equitable flavor.

Undoubtedly the skills of competent attorneys would be better utilized if a deviation is possible from ingenuine legal strategizing mind frame or at least a balance between strategizing and genuineness is maintained. This is because from a genuine perspective, the following cause of action and relief is discernable in the sphere of equitable constructive trusts:a. Section 92 of the Trust Ordinance specifically relates to co-ownership context

involving the advantage gained by the persons having qualified interest such as co-owner, mortgager or any such other person. Even though this section is more advantageous to 1st Defendant in this factual context the moment this provision is read in conjunction with Section 96 of the Trusts Ordinance, which relates to constructive trusts that are not expressly provided by the ordinance, the genuine equitable consideration could be given effect.

b. The 1st and 2nd Plaintiffs were deprived and/or ousted of possession one month prior to the institution of this action. Apparently, the 1st Defendant being a co-owner is not entitled to the whole beneficial interest but only entitled to proportionate co-owned share and thus, he should hold the property in trust for 1st and 2nd Plaintiffs who are other co-owners under Section 96 of the Trusts Ordinance.

c. The most vital question is what is the effect of the Loan Facilities obtained and paid by the Plaintiffs for the improvement of business in the premises/land in question that constitute attendant circumstances creating fertile ground for a constructive trust claim.

d. This is an ideal instance in which 1st Defendant must hold the property in trust for the Plaintiffs and the attendant circumstances reflects that the Plaintiffs are entitled to a further equitable share out of co-owned property beyond the specific proportionate share to which they are entitled under Matrimonial Rights and Inheritance Ordinance.

e. This action should have been instituted with mixed causes of action with one being in the partition/co-ownership context and other in the constructive


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trust, which have not been specifically covered by the Chapter IX of the Trusts Ordinance. The interference or the cross application of co-ownership/partition law with constructive trusts seems essential in providing an equitable relief when compensation for improvement in co-ownership/ partition context does not provide specific relief in this regard.

f. The possessory restoration and the alleged breach of peace issues could have been dealt in an action under Section 66 of the Primary Courts Procedure Act and claiming relief of such nature in this injunctive action is contrary to basic established principle in Pounds et al vs. Ganegama. It was subsequently revealed that in fact a Section 66 Action had been instituted at the time this action was instituted.

g. The aforesaid discussion reflect that in the lights of approach of Jonga vs. Nanduwa and Seelachchi vs. Visuanathan in relation to unexpressed or residuary Section 96 of the Trusts Ordinance, a genuine attempt could be made to seek an additional share beyond the share which the Plaintiffs are entitled under Matrimonial Rights and Inheritance Ordinance.

h. Even though interference of equitable relief under constructive trust law regime that involves English Law origin with the co-ownership in the Land Law regime based Roman Dutch Law origin would be a highly controversial legal scenario. It is a worthy question to be tested by the Superior Court. If this action is designed and or engineered from genuine point rather than focusing delusionary tactics irrespective of the possibility of limited success, a settlement may be reached in pursuance of equitable claim which in black and white form in the Court record.

Conclusion:

The question whether operation of constructive trusts in terms of Section 96 of the Trusts Ordinance or otherwise be applied in cross interference with laws relating to Co-ownership, intestate succession involving Matrimonial rights and Inheritance Ordinance etc. is a worthy question to be determined by our superior courts. However, such argument may be entertained by original court and relief may be granted in the first instance only upon strong attendant circumstances drawing unequivocal concerns of equity in a manner shocking the conscience of court. Equitable interpretations of law that ultimately resulted in exceptions to inadmissibility of parole evidence rule under Section 91 and 92 of the Evidence Ordinance as well as the Section 2 of the Prevention of Frauds Ordinance and multiple means by which said interpretations are demonstrated in the unlimited scope of equity under constructive trusts chapter. Thus, the constructive trusts irrespective of the specific category, remains worthy tool to be utilized by legal strategists in pursuance of strong equitable concerns. However,

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ulterior motives narrows the scope of mind of the legal strategists that ultimately deprives their clients from relief to which they are entitled.

Endnotes

1 AN ORDINANCE TO DEFINE AND AMEND THE LAW RELATING TO TRUSTS NO. 9 of 1917 as amended by 4 of 1918, 1 of 1934, 7 of 1968, 30 of 1971, 6 of 201

2 Said observations are based on several practical instances in which constructive trusts arguments is given effect in the isolated jurisdiction of Kebithigollawa

3 Wikipedia.org, Alt Niels Christian Ross, Leading Exponents of Scandinavian Legal Realism criticizing Natural Law

4 1991(1) Sri LR 1155 62 NLR 3026 2011(2) Sri LR 3407 Sc. Appeal 173/2011 dated 6th April 2016 by Lordship PrasannaJayawardena PCJ 8 23 NLR 979 [1944] 45 NLR 12810 L.J.M Cooray, The Reception in Ceylon The English Trusts, An Analysis of the Case Law

and Statutory Principles relating to Trusts and Trustees in Ceylon, 197111 Pg. 293 Ibid, Valliamma case 12 1992 (1) SLR 11513 [1921] 22 NLR 316 14 Weeramantry, the Law of Contracts, Sec 670, pg. 63715 SC. Appeal 73/2011 dated 6th April 2017 by Hon. Justice PransannaJayawardene PCJ16 L.J.M Coorey, The Reception of English Trusts in Ceylon, pg. 124, (in analysis of Sections

83 to 96- particularly analysis of Sections 86 to 89 and 92 to 96)17 Ibid 10, pg. 21418 Pg. 8, CA, No. 396A & 396B, His Lordship Chitrasiri quoting L.J.MCooray19 52 NLR 9720 1990(1) SLR 9021 62 NLR 30222 2011 (2) SLR 34023 45 NLR 12824 Weeramantry, the Law of Contract, Sec 669, pg. 63625 [1874] 3 NLR 14826 Ibid pg. 63627 Bindra, Interpretation of Statutes, Pg. 774, 770 quoting Colqhoun vs. Brooks [1888] QBD 52 28 Ibid 22, pg. 773

JSA LAW JOURNAL VOLUME VI - JUDICIAL SERVICE ...

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