LSASL Magazine: Volume II 2022

ABOUT LSASL

Law Students’ Association of Sri Lanka (LSASL)

The Law Students’ Association of Sri Lanka (LSASL) is an independent, nonpolitical and non-profit body established in 2009, that represents the law student populace in Sri Lanka.

The social responsibility network among Association is also Students Association 16 Asian Australian Law Association (ELSA) as well.

Established late Justice prestigious student and governmental legal education institutions and its students.

The Association is built with the purpose of focusing on the development of the able to adapt the quality of future lawyers and the legal system in Sri Lanka.

The among the education at various legal education institutions. This in turn helps establish, maintain contact and promote goodwill and collaboration between law students both locally and internationally.

EDITORIAL BOARD

LSASL MAGAZINE VOLUME II

DIHANIE AMERASINGHE

Editor in Chief Academics Activities Secretary LSASL

VP of Academic Activities ALSA Sri Lanka

METHMUTU ABEYWICKRAMA

Research Officer

Academic Activities Department LSASL

SHENOLI GAMAGE Research Officer

Academic Activities Department LSASL

SUBODHI WEERASEKARA

Research Officer

Academic Activities Department LSASL

AKESHA EDIRISINGHE

Programs Officer

Academic Activities Department LSASL

AMAYA WIJESINGHE

Website Manager Academic Activities Department LSASL

THE ADVISORY PANEL 2021/2022

The Advisory Panel of The Law Students' Association of Sri Lanka (LSASL) for 2021-2022

The Law Students' Association of Sri Lanka (LSASL) is honoured to have prominent Attorneys at Law; Mr. Thishya Weragoda, Ms. Jerusha Crossette-Thambiah, Mr. Shamir Zavahir, Dr. Kushanthi Harasgama, Mr. Vishwa de Livera Tennakoon, Mr. Dharshana Edirisuriya and Ms. Saranee Gunathilake as our very first Advisory Panel.

THE ADVISORY PANEL 2021/2022

Mr. Shamir Zavahir

LL.B. (UK), Attorney at Law Coordinating Secretary & Director Justice Sector Reform Programme of the Ministry of Justice

Dr. Kushanthi S. Harasgama B.A. (Hons) (Kelaniya), LL.M. (Deakin), PhD (Monash) Attorney at Law, Senior Lecturer

Ms. Jerusha Crossette-Thambiah Attorney at Law, LL.B. (London), LL.M. (London) Legal Advisor to the Mayor of Colombo Legal Consultant | Gender Practitioner Lecturer

THE ADVISORY PANEL 2021/2022

Mr. Thishya Weragoda

LL.B. (London), LL.M. (London) MCIArb (UK), ACMA (UK), CGMA Attorney-at-Law

Mr. Vishwa de Livera Tennekoon

LL.B. (Hons) (London), LL.M. (Colombo) Attorney at Law

Ms. Saranee Gunathilake

THE ADVISORY PANEL 2021/2022

Mr. Dharshana Edirisuriya LL.B. (UK), MHRD (Colombo) Attorney at Law

MESSAGE FROM THE ADVISORY PANEL OF LSASL 2021/2022

It gives me great pleasure to pen these words for the Magazine by the Law Students’ Association of Sri Lanka, an association that encourages law students to bring forth their talent, and enhance their knowledge while honing their leadership skills. It is inspiring to note that the Association is taking the initiative to enhance the knowledge of its members by giving them opportunities to publish their work.

As an Advisor to the Law Students’ Association of Sri Lanka, I see this as a wonderful opportunity for students to engage in legal research and engage in writing, two skills they would be required to master along their long and winding legal careers.

A magazine, unlike a law journal, is encouraging to many first time writers. It provides a platform not only for legal content but also a platform to display other interests such as poetry and photography. For law students, to have interests other than the law will be refreshing to the mind.

I wish the Academic Activities Department and the National Council of the Law Students’ Association of Sri Lanka, the very best and reach new heights.

Mr. Thishya Weragoda Advisory Board Member of LSASL

2021/2022

MESSAGE FROM THE PAST PRESIDENT OF LSASL 2016-2018

Greetings for the next edition of the LSASL E Mag.

It gives me immense pleasure to write my gratitude to this year's LSASL National Council, for carrying on the legacy of LSASL to new heights.

This year I witnessed the return of the LSASL to its ground-level work after two years of pandemic-driven hibernation. I saw the coordination with external agencies and international donors come to light again. I saw the Academic and Social Service Departments conducting a series of programs and collaborations. In addition, I I got to see the LSASL growing in numbers in terms of volunteers and officers.

For an alumni, this promises the organization its future and growth.

I congratulate the National Council of 2021/22 for their endeavors so far and I wish them all the very best for what the future of LSASL may hold. Thank you.

Past President of LSASL

2016-2018

Madhava De Alwis

MESSAGE FROM THE PRESIDENT OF LSASL 2021/2022

The Law Students’ Association of Sri Lanka was established to facilitate meaningful engagement amongst law students whilst contributing to society. We have initiated numerous projects that enhance the knowledge and skill of law students across the country. The LSASL Magazine is one such project.

A magazine provides a platform for writers and other artistic expressions to take stage. This is a wonderful opportunity for law students to showcase their creativity outside the legal framework.

The second issue of the LSASL Magazine takes a closer look at some initiatives by other Departments of the Association and highlights events that took place during the year. In the following pages, you will learn about the Law and protection of the environment. A deep dive into the origins, evolution, and international conventions will broaden your knowledge on the subject.

The magazine features photographs, movies, and book reviews that will add colour to your reading experience.

I would like to congratulate the Academic Activities Department, headed by its Secretary, Dihanie Amarasinghe, for taking up the challenge of resuscitating the LSASL Magazine. It is a tremendous effort made by the Department members for the successful completion of this issue.

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MESSAGE FROM THE PRESIDENT OF LSASL 2021/2022

We hope you enjoy reading this issue and we look forward to your contributions for future publications.

Zakir President of LSASL 2021/2022

Zeenath

MESSAGE FROM THE EDITOR-IN-CHIEF AND SECRETARY OF THE ACADEMIC ACTIVITIES DEPARTMENT OF LSASL 2021/2022

It is with great honour and joy that I pen this message for the Volume II of the LSASL Magazine for the Law Students Association of Sri Lanka. The publication of this magazine officially marks the second volume and the revival of the official LSASL Magazine of the Association.

This year, the Academic Activities Department centered its projects around the intention to further provide law students with more access to educational information on various areas of law and to help improve the skills of law students to help make them well rounded individuals in the future and in the profession. This is what we were able to achieve with our first project of the year, which was a series of educative posts on the important judgments and cases of Sri Lanka. This series provided law students with summarised explanations of a diverse set of important Sri Lankan cases and judgments and their key takeaways.

For our second project, the Academic Activities Department took on the task of reviving the LSASL Magazine this year with the purpose of providing a platform for law students across the country to express and share their work, thoughts and opinions on various diverse matters of interest. We also wanted the magazine to provide its readers with informative and interesting content that educates and stimulates discussion among law students.

The magazine also aimed to act as a good opportunity for law students to exercise and practice their legal writing and research skills whilst also having the opportunity to publish their articles as well.

MESSAGE FROM THE EDITOR-IN-CHIEF AND SECRETARY OF THE ACADEMIC ACTIVITIES DEPARTMENT OF LSASL 2021/2022

Furthermore, The magazine was also published with the intention to promote the LSASL and to shed more light on the work and projects organised and conducted by the Association for those who are unaware of the LSASL and its work.

The publication of Volume II of the LSASL Magazine was only possible due to the combined efforts and support of several individuals to whom I would like to acknowledge and express my sincerest gratitude.

Firstly, I would like to thank my five Department Members who worked tirelessly alongside me to compile and publish this magazine. It is due to their hard work, efforts, and commitment that this magazine came to fruition and was able to be published this year.

Last but not least, on behalf of the Academic Activities Department, I would like to sincerely thank all our contributors to the magazine. Without your contributions and submissions, we wouldn't have a magazine to publish at all. Therefore, I would like to express my deepest gratitude and appreciation to every single contributor who contributed to this volume of the Magazine.

MESSAGE FROM THE EDITOR-IN-CHIEF AND SECRETARY OF THE ACADEMIC ACTIVITIES DEPARTMENT OF LSASL 2021/2022

Finally, the publication of this year’s magazine has been a challenging yet rewarding experience. I sincerely hope the magazine is enjoyable and valuable for those who were involved in it, contributed to it, and those who will now get to read it. I look forward to seeing how the LSASL Magazine progresses and grows in the years to come and I hope the LSASL Magazine continues to reflect what it intended to originally achieve.

Dihanie Amerasinghe

Editor in Chief of Volume II of the LSASL Magazine Academic Activities Secretary of LSASL 2021/2022

MESSAGE FROM THE SECRETARY OF THE MOOTING, DEBATING, AND NEGOTIATION DEPARTMENT OF LSASL 2021/2022

The Mooting, Debating, and Negotiation Department of the Law Students' Association of Sri Lanka consists of the Secretary, three Mooting Co-Ordinators, and two Department members. Our aim is to work together with the Mooting and Debating Societies of Public and Private Universities to improve the mooting, debating, and negotiation skills of law students across the Island. We have understood that there is an inequality in access to coaches, workshops, and resources across Universities in Sri Lanka. Our vision is to bridge this gap and provide all law students ample opportunities to improve their skills and succeed at Mooting, Debating, and Negotiation competitions, both at National and International levels.

In order to achieve our aims, we compiled a database of coaches that university teams could contact in order to prepare for the Debating and Mooting competitions in 2021. In February of 2022, we successfully completed the first ever LSASL Training Course on Mooting. We held online sessions on Introduction to Mooting, Written Advocacy, Oral Advocacy, and How Mooting can help enrich a legal career. The sessions were conducted by Ms. Saranee Gunathilake, Attorney at Law, Ms. Tavini Nanayakkara, Attorney at Law, Mr. Shamir Zavahir, Attorney at Law, and Mr. Sajith Bandara, State Counsel. We received positive feedback on this program from the participants and we are currently in the process of planning future programs for Law Students.

MESSAGE FROM THE SECRETARY OF THE MOOTING, DEBATING AND NEGOTIATION DEPARTMENT OF LSASL 2021/2022

In the future, we hope to expand our activities to provide awareness about alternative dispute mechanisms such as Arbitration, Mediation, and Negotiation. As the Mooting Department, we will continue to maintain a close relationship with University level organizations and provide our support and expertise when needed.

Rasara Jayasuriya Mooting, Debating and Negotiation Secretary of LSASL 2021/2022

MESSAGE FROM THE SECRETARY THE SOCIAL ACTIVITIES DEPARTMENT OF LSASL

2021/2022

The Social Activities Department, as its main function attempts to coordinate social activities for the engagement of all of the members of the LSASL. Its goal is to promote social skills and mediate interaction among members of the Association. Further, it attempts to facilitate participation across all elements of the Association and gear events appropriately locally and internationally and to liaise, gain opportunities, seek and provide information on social activities of other associations, institutions and organizations locally and internationally.

Along with the members of my Department, Shanuka Kadupitiyage and Shuffna Hudha, the Social Activities Department for the years 2021/2022 has so far initiated two social events.

On the 4th of December 2021, the Social Activities Department organized a webinar on “Stress and Time management” in collaboration with “Kalyana”. The Panelists of this webinar were Dr. Chintha Dissanayake, Charted Psychologist, Founder and Director of Oxford Psychometrics Ltd, and Ms. Shanelle De Almeida, Licensed Clinical Psychologist, Group Wellness Manager of Hemas Holdings. The aim of this webinar was to educate and provide knowledge to students and adults of all ages and professions on how to manage their stress, and time and on how to strive towards a balanced lifestyle, especially during these unprecedented times. It was undoubtedly clear that the event was a success, considering the number of participants and feedback.

MESSAGE FROM THE SECRETARY THE SOCIAL ACTIVITIES DEPARTMENT OF LSASL 2021/2022

On the 13th of February 2022, the Social Activities Department organized a Hawaiian-themed party for the members of the Association. The night was filled with laughter, music, good food, and games. The purpose, rather the aim behind this event was not only to raise funds for the Association but also to develop good relationships and bonds between all members of the Association and allow them to get to know their peers and colleagues in the profession. At the end of the night, we were successful in achieving both aims.

When considering the future of the Department and with the support of the rest of the Association, the Social Activities Department wishes to reach all the goals that have been set out and will attempt to organize more events to educate and bring all members of the Association and the general community of law students in Sri Lanka closer together in order to develop a strong community among law students of Sri Lanka.

Social Activities Secretary of LSASL 2021/2022

Yasara Kodagoda

John H. Jackson Moot Court Competition (JHJMCC) 2022

The John H. Jackson Moot Court Competition (JHJMCC) is a simulated hearing under the rules of the WTO dispute settlement system involving exchanges of written submissions and adversarial hearings before panelists on international trade law issues. The competition used to be known as the ELSA Moot Court Competition in WTO Law but was renamed in 2018 after John H. Jackson, an eminent scholar and a mastermind of the multilateral trading system.

The Competition is a simulated hearing of the WTO dispute settlement system. The teams prepare and analyse a fictitious case and present their arguments both for the Complainant and the Respondent in front of a Panel that consists of WTO and trade law experts. The competition is held entirely in English and teams of 2-4 law students are eligible to participate.

The John H. Jackson Moot Court Competition (JHJMCC) is an annually organised international moot court competition by the European Law Students’ Association in cooperation with the Asian Law Students’ Association (ALSA) and with the technical support of the World Trade Organisation (WTO). It is held annually with the participation of students from more than 35 countries around the world. This year marks the 20th Edition of the John H. Jackson Moot Court Competition (JHJMCC). This year, the competition was organised and held virtually.

This year, the Law Students' Association of Sri Lanka (LSASL) ALSA National Chapter Sri Lanka under the guidance of the Asian Law Students’ Association (ALSA) hosted the Asia Pacific Regional Rounds for the John H. Jackson Moot Court Competition (JHJMCC) 2022.

John H. Jackson Moot Court Competition (JHJMCC) 2022

The Asia Pacific Regional Rounds is made up of two rounds. They are the East Asia & Oceania Regional Round and the West & South Asia Regional Round. The Asia Pacific Regional Rounds first started with the East Asia & Oceania Regional Round which was held on the 16th of February to the 20th of February 2022. The West & South Asia Regional Round commenced from the 20th to the 24th of April 2022. Both rounds were organised and held successfully online.

The East Asia & Oceania Regional Round was held virtually on the online platform Coderblock, from the 16th of February to the 20th of February 2022. Similarly, the West & South Asia Regional Round was held from the 20th to the 24th of April 2022.

ALSA Sri Lanka was tasked to organise and coordinate the Asia Pacific Regional Rounds for the Competition. The Organising Committee for the Asia Pacific Regional Rounds comprised 15 Members in total. They were also tasked to recruit and allocate timekeepers to conduct the Asia Pacific Rounds this year.

The Organising Committee comprising of 15 members was headed by Ms. Zeenath Zakir, President of the Law Students’ Association of Sri Lanka ALSA Sri Lanka, and Ms. Dihanie Amerasinghe, Vice President of Academic Activities Law Students’ Association of Sri Lanka - ALSA

Sri Lanka from the ALSA National Chapter Sri Lanka along with Ms. Khaing Nyein Zin, Vice President of Academic Activities and Ms. Chel Hmone Htin, Director of Moot Court Competition from the ALSA International Board 2021/2022.

The Induction Ceremony of the Law Students’ Association Sri Lanka (LSASL) for

the year 2021/2022

The Induction Ceremony of the Law Students’ Association Sri Lanka for the year 2021/2022 was held on the 9th of April 2022 at the Sri Lanka Board of Tourism, inducting 53 Office Bearers for the very first time. The Chief Guest for the Induction Ceremony was the President’s Counsel and President of the Bar Association of Sri Lanka (BASL), Mr. Saliya Peiris. At the Induction Ceremony, the National Council for the year 2021/2022 was officially appointed along with the appointment of Office Bearers for each department under the LSASL. The facilitation of the outgoing National Council for the year 2020/2021 was also conducted during the ceremony.

The ceremony was attended by the honourable Chief Guest, Mr. Saliya Peiris, PC, Secretary of the Bar Association of Sri Lanka (BASL), Mr. Isuru Balapatabandi, members of the Advisory Panel, former National Council Members along with the incoming National Council, Department and General Members of the LSASL for the year 2021/2022. The LSASL Flag designed by Sanjula Hettiarachchi was officially revealed during the ceremony as well.

CONTRIBUTIONS

DO PARTITION ACTIONS AND DECLARATION OF TITLE/REI VINDICATIO ACTIONS HAVE THE SAME CAUSE OF ACTION?

Shane Foster and Piume Kulatilake Attorneys at Law

01. INTRODUCTION

What is sought to be examined through this Article is the question of whether declaration of title actions and partition actions have the same cause of action.1 This inquiry is important in a number of different respects, but chiefly, in respect of the question of advising a client as to which procedure they ought to adopt in order to be able to achieve the ends they seek to achieve through litigation and also the question of whether one suit bars the other.

02. PARTITION ACTIONS

The main object of partition actions is to partition or distribute the proceeds of a sale among the co owners of land according to their rights 2 Partition actions have a special character 3 It results in a decree binding in rem 4 Its procedure is sui generis, provided for by a specific Act of Parliament 5 Additionally, every party to a partition action has the double character of a Plaintiff and a Defendant 6 It is the sacred duty of a judge to investigate title in a partition action, which is not a duty placed upon a judge in any other type of action before the Court 7 It is also universally acknowledged that a partition action is not meant to resolve issues relating to the ownership of the subject matter 8

Section 2 of the Partition Law9 states that “Where any land belongs in common to two or more owners, any one or more of them, whether or not his or their ownership is subject to any life interest in any other person,

1 Section 5 of the Civil Procedure Code as amended interprets the term “cause of action” as “the wrong for the prevention or redress of which an action may be brought, and includes the denial of a right, the refusal to fulfill an obligation, the neglect to perform a duty and the infliction of an affirmative injury”

2 Vide Dr. Wijeyadasa Rajapakshe, The Law of Property Volume III, (3rd edn) 3

3 In the case of Pandiwela vs. Ashoka and Others (2008) 2 Sri LR 312 Sarath De Abrew, J. held that “The Partition Law is a specialised law seeking to award rights, title and interests in the land in suit to the parties concerned against all other suitors and against the world at large.”

4 Per Browne, A.J. in Batagama Appuhami vs. Dingiri Menika 3 NLR 129.

5 The Partition Law, (No 21 of 1977) Sect 21 as amended

6 vide Mariam Beebee vs. Seyed Mohamed 68 NLR 36 in this regard

7 In the recent case of Pathirennehelage Swarnasiri Nimal vs. Pathirennehelage Leelawathie and Others SC Appeal No. 178/2013 decided on 14.12.2016 it was held that the duty imposed on the judge in a partition case is a sacred one. The burden of seeking and getting evidence before Court, in the course of investigation of title to the land sought to be partitioned by parties before Court, prior to deciding what share should go to which party is more the duty of the judge than the contesting parties. This is the case even if the parties wish to enter into settlement and conclude the partition action.

8 In Nono Baba vs. Nona Hamy 3 NLR 12 Withers, J. held that the primary object of partition proceedings is not to try and determine contested questions of title but that it is really meant for persons whose shares are admitted to some extent.

9 (n 6)

may institute an action for the partition or sale of the land in accordance with the provisions of this Law” Hence,thecauseofaction arisesoutof thedifficultyofpossessingthesubjectmatterincommon,10 although such is not required to be specifically proved, but must at least be averred in the Plaint.11 In the case of Dingiri Amma vs. Appuhamy,12 Sirimane, J. held that a partition action is not founded upon the definition of a cause of action under section 5 of the Civil Procedure Code as amended but was founded upon the definition of an “action” in section 6 of the Civil procedure Code as amended.13 This is very much the opinion that Middleton, J. espoused in the case of Lebbe Marikar.14 In Marshal Perera vs. Elizabeth Fernando,15 where H. N. G. Fernando, J. stated that “If, therefore, any notion of a “cause of action” is involved in a partition suit pure and simple, it is this inherent right of a co owner for the time being which constitutes the “cause of action”. Therefore, it is submitted that in partition actions there is no “cause of action” proper in the strict sense of the words contained in section 5 of the Civil Procedure Code as amended. What a Partition Action may in fact constitute is an application for relief based on section 6 of the Civil Procedure Code as amended.

03. DECLARATION OF TITLE ACTIONS AND REI VINDICATIO ACTIONS

The declaration of title actions are also regularly referred to as rei vindicatio actions. This is not strictly accurate. Even though a prayer for a declaration of titleis generally included in a rei vindicatio action, there are declaration of title cases which do not fall within the realm of rei vindicatio actions proper. An example of this is a case where declaration of title is pleaded but the defendant is prevented from challenging the title due to an estoppel in terms of section 116 of the Evidence Ordinance as amended. In such cases, strict proof of title by the Plaintiff is not required, as would be wont in a rei vindicatio action. In Pathirana vs. Jayasundara,16 Gratian, J. stated that “a decree for a declaration of title may of course, be obtained by way of additional relief either in a rei vindicatio action proper (which is in truth an action in rem) or in a lessor’s action against his overholding tenant (which is an action based in personam). But in the former case, declaration of title is based on proof of ownership; in the latter, on proof of the contractual relationship which forbids denial that the lessor is the true owner” Thus, this examination of declaration of title actions is made with the caveat that this article is not referring to all forms of rei vindicatio actions, but those that are analogous to actions for declaration of title in respect of rights in rem

10 Vide Abeysundara vs. Babuna 26 NLR 459 in this regard which held that the cause of action upon which a partition action is based is inconvenience of common ownership

11 Vide the dicta of H. N. G. Fernando, J. in Marshal Perera vs. Elizabeth Fernando 60 NLR 229 wherein his Lordship stated that “The Partition Ordinance does not render it essential for the plaintiff to prove in such a suit that common possession, is inconvenient, nor have the Courts held that inconvenience of possession must be established. The Ordinancepresupposes an inherent right in anypersonwhois forthetime beinga co ownerto secure adivided holding for himself or else, in appropriate circumstances, to obtain his proportionate share in the proceeds of sale of the land”

12 72 NLR 347.

13 His Lordship went on to say that "If one regards a partition action as an action founded on some cause, even if it be not such a cause as would fall within the definition in section 5 of the Civil Procedure Code, then the cause of action would seem to be a recurring one, that is, it is due to a continuance of the common ownership which exists from day to day as the inconvenience of common ownership recurs day by day”.

14 Leader Law Reports “even if proceedings in partition are not strictly speaking actions as being proceedings for the prevention or redress of a wrong (section 5) they may, I think be deemed applications for relief from joint ownership obtainable through the exercise of the Court’s power (section 6)”.

15 60 NLR 229

16 (1955) 58 NLR 169

04. REI VINDICATIO ACTIONS

Rei Vindicatio is a remedy conferred by the Roman Dutch law to an owner of land to regain possession of his property. According to Voet, “From the right of ownership springs the vindication of a thing, that is to say, an action in rem by which we sue for a thing which is ours but in the possession of another”. 17 In a rei vindicatio action,the burdenisonthePlaintiff toprovetitletothelandinsuit irrespectiveof weaknesses of the Defendant’s case 18 But that does not require the Plaintiff to prove his title beyond reasonable doubt as in a criminal prosecution, or on a high degree of proof as in a partition action. The standard of proof of title is on a balance of probabilities as in any other civil suit. The stringent proof of chain of title, which is required in a partition action to prove the pedigree is not required in a rei vindicatio action

The full bench of the Supreme Court in Jinawathie v. Emalin Perera19 held that the Plaintiff in a rei vindicatio action shall merely prove that he has title to the disputed property and that such title is superior to the title,ifany, put forward bythe Defendant, or that he hassufficient title whichhe can vindicateagainst the Defendant 20 In a vindicatory action, the initial burden is on the Plaintiff to prove title to the property. If he fails to prove title, the Plaintiff’s action shall fail no matter how weak the case of the Defendant is. However,oncepaper titleto thepropertyisacceptedby theDefendant or proved by thePlaintiff,the burden shifts to the Defendant to prove on what right he is in possession of the property.

05. A CAUSE OF ACTION IN REI VINDICATIO ACTIONS

In Theivandran vs. Ramanathan Chettiar,21 Sharvananda, C.J. stated: “Ina vindicatory actiontheclaimant need merely prove two facts; namely, that he is the owner of the thing and that the thing to which he is entitled to possession by virtue of his ownership is in the possession of the Defendant. Basing his claim on his ownership, which entitles him to possession, he may sue for the ejectment of any person in possession of it without his consent”. 22 It is respectfully submitted that this fits in neatly with the definition of a “cause of action” in section 5 of the Civil Procedure Code as amended: a rei vindicatio action is constituted upon the wrongful act of the Defendant of possessing property without lawful right or without, at least, the leave and license of the true owner of the land and hence it is a “wrong for the prevention or redress of which an action may be brought”.

06. DISTINIGUISHING FEATURES OF DECLARATION OF TITLE ACTIONS AND PARTITION ACTIONS

A declaration of title action and a partition action are fundamentally different from one another. Partition Law deals with real property only; whereas a declaration of title can be prayed for in respect of movable

17 Vide page no 295 G. L. Peiris, The Law of Property in Sri Lanka Volume I (Revised 2nd Edition, Stamford Lake (Pvt) Ltd.).

18 H.N.G. Fernando. J, (as his Lordship then was) in Pathirana vs. Jayasundara (1955) 58 NLR 169 stated that rei vindication actions required “strict proof of the Plaintiff’s title”.

19 (1986) 2 Sri LR 121

20 Vide also Palisena vs. Perera (1954) 56 NLR 407 and Banda vs. Soyza (1998) 1 Sri LR 255.

21 (1986) 2 Sri LR 219

22 This was quoted with approval by G.P.S. de Silva, C.J. in Beebi Johara vs. Warusavithana (1998) 3 Sri LR 227, Candappa nee Bastian vs. Ponnambalam Pillai 7 (1993) 1 Sri LR 184, Wijetunge vs. Thangarajah (1999) 1 Sri LR 53, Gunasekera vs. Latiff (1999) 1 Sri LR 365, Jayasekera vs. Bishop of Kandy (2002) 2 Sri LR 406 and Loku Menika vs. Gunasekera (1997) 2 Sri LR 281

property also. Furthermore, in a declaration of title action/rei vindicatio action it is not possible for a party to pray for a partitioning of the land in issue. In the case of Lucihamy vs. Hamidu,23 the Court accepted that while rei vindicatio actions and partition actions may be similar in certain respects, this is not really the case, and that there is a clear delineation between the two types of actions.24 In the case of Fernando vs. Menikrala,25 Bonser, C.J. stated in appeal that the Plaintiff in a Partition Action obtains a title in rem whereas in a declaration of title action, all that the Plaintiff gets is a decision based on whether he had better title than the Defendant.

Also, whereas declaration of title matters are governed in the District Court by the Civil Procedure Code as amended, this is not the case for Partition matters. It has a sui generis procedure noted in the Partition Law as amended. An application of this may be seen in the case of Cathirina vs. Jamis,26 wherein it was held that section 85 of the Civil Procedure Code as amended does not apply to partition actions. The provisions of the Civil Procedure Code cannot be applied willy nilly to partition actions as was noted in the case of Munidasa vs. Nandasena,27 wherein it was held by Jayawickrema, J. that where “The Partition Law provides a specific remedy, the Plaintiff Respondent is not entitled to resort to provisions of the Civil Procedure Code”. 2829

07. CONCLUSION

It is therefore submitted that Partition Actions and Declaration of Title/rei vindicatio actions are in fact different and may not be equated to each other. Their causes of action are different and hence one action cannot bar the other.

23 26 NLR 41

24 In Lucihamy, hisLordshipBertramC.J.heldthat“Ordinarilyspeaking,theactionisnotbroughttoresolveaquestion of title; its object is increased convenience of possession. In the present instance when the action first started, there was no question of title. It was only when the ninth defendant intervened that a question of title arose. It has been held by the Privy Council in Ponnmama vs. Arumogam (1905) 8 N.L.R. 223 that a partition action may in fact be an action for the recovery of land, but, as was pointed out in another case (Hassen Hadjiar vs. Levane Marikar (1912) 15 N.L.R. 275), it is not necessarily an action of that character” 25 5 NLR 369 26 73 NLR 49. 27 (2001) 2 Sri LR 224

28 In the case of Samarasinha vs. Balahamy 5 N.L.R. 379, it was held by Moncrieff, ACJ. with Wendt, J. concurring that “So far as I am aware, the procedure of the Civil Code cannot be adapted to the procedure in a partition case.” 29 This is also exemplified by Section 71 of the Partition Law which appears to make specific provisions for default of the Plaintiff in prosecuting his claim in a partition action. It is clearly the position of the law then that the chapter on default of appearances in the Civil Procedure Code, Chapter XII, does not apply to actions under the partition law. In Dingiri Amma vs. Appuhamy Sirimane, J. held as follows: “But I must say, however, that I am very strongly of the view that the provisions of the Civil Procedure Code relating to the consequence and cure of defaults in appearing (Chapter 12) have no application at all to a partition action instituted under the Partition Act.”

COVID 19 (TEMPORARY PROVISIONS) ACT NO. 17 OF 2021 AN OVERVIEW

Sanjaya Kodituwakku Attorney at Law, LL. B (Colombo)

1.0 Introduction

It is undoubtedly true that Covid 19 is the worst Pandemic that we have faced during our lifetime up to now. It brought destruction not only to the economies of most countries, but also to the day to day lives of people around the world. Sri Lanka is one of the worst affected countries and by the end of the year 2021, the country was struggling to survive from the fall of its foreign currency reserves, mainly due to Covid 19 related issues.

One of the worst affected areas in Sri Lanka due to the Covid 19 Pandemic is the administration of justice system With the detection of first local patient who got infected with Covid 19 in March 2020, an island wide quarantine curfew was imposed and that lasted from mid March 2020 to the early part of May. Then with the emergence of the 2nd Wave of the Pandemic in October 2020 and the third wave after the Sinhala and Tamil New Year in 2021, quarantine curfew was imposed from time to time and travel restrictions such as inter Provincial travel bans too were imposed even after the lifting of the quarantine curfew.

As a result of these travel restrictions and other obstacles, the Court system was not functioning smoothly in Sri Lanka. Even though the Judicial Service Commission issued various circulars from time to time with directions as to the functioning of Courts during the pandemic, implementation of those guidelines was not very effective.

At the same time, a number of Attorneys at Law got infected with the disease, and as a result some passed away and some others had to obtain long term medical treatments due to various other complications that accompanied the disease. This was the same in the case of some of the litigants as well.

It is common ground that according to our laws of procedure, certain steps in cases have to be taken within a specific time frame 1 In addition to that, according to the Prescription Ordinance, certain actions have to be filed within a specific time frame.2 If such time limits are not adhered to, that would result in the dismissal of such appeals, applications as well as actions.

Therefore, there was a serious need for some legislation that could assist those who could not take such steps as stated above due to Covid 19 circumstances.

In addition to that, it was found that there were lot of people who could not come to Sri Lanka from abroad due to travel restrictions in such countries to give evidence in pending cases in Sri Lanka. Sometime even within Sri Lanka, persons could not travel due to various travel restrictions.

To remedy these types of situations, the Parliament enacted “Coronavirus Disease 2019 (Covid 19) (Temporary Provisions) Act No 17 of 2021. The Ministry of Justice had appointed a committee for the purpose of drafting this law and the draft Bill of the said committee was approved by the Ministry. When the Bill was presented to

1 For example, see Sections 754(4), 755(3), 757(1) of the Civil Procedure Code, Sections 321(1), 331(1) of the Code of Criminal Procedure Act No 15 of 1979 and Section 31B (7) of the Industrial Disputes Act No 43 of 1950.

2 See Prescription Ordinance No 22 of 1871, Sections 4 to 11

3

Parliament and placed on the order paper, its constitutionality was challenged before the Supreme Court.3 Accordingly, a three judge bench of the Supreme Court was constituted to determine the same. By majority judgment, certain clauses in the draft Bill were held to be unconstitutional and it was held that if they were to be made law, a two thirds majority of the Parliament (including those who are absent) should vote for the Bill and in addition to that, those provisions had to be approved by people at a referendum.4

Therefore, the Bill was re drafted according to the amendments suggested by the Supreme Court and the Bill become law of the land when the Speaker certified it on 23.08.2021.

2.0 Main Features of the Act

The Act seeks to remedy three situations (i.e.)

(a) Granting relief for those who failed to comply with prescribed time periods stipulated by law 5 (b) Designing alternative Courts, when certain Courts have to be closed due to Covid 19 Circumstances 6 (c) Conducting Court Proceedings using remote Communications technology.7

Before moving on to these features, it must be noted that the operation of the Act was made retrospective, and it operates for a period of two years starting from the 1st of March 2020.8 This means that the period of operation of the Act ceases on the 28th of February 2022. However, the Minister is empowered to publish a Gazette extending the period of operation of the Act for a further period not exceeding two years, and such Gazette has to be published within one month period prior to the period of expiration of the operation of the Act. This means that the Minister has to publish a Gazette by 28th of January 2022, if he seeks to extend the operation of the Act for a further period,9 The term “Minister’ is interpreted to mean “the Minister assigned this Act under Article 44 or 45 of the Constitution”, who is the Minister of Justice.10

As stated above, one of the prime objects of the Act is to grant relief to those who could not take necessary steps according to law and as a result have faced certain difficulties. This includes filing actions, appeals, applications or other legal proceedings before any Court, tribunal or other authority, and performing any act which is required by law to be done or performed within a prescribed time period.11

Therefore, it is very clear that even failure to tender income tax returns to the Department of Inland Revenue, failure to tender relevant lists and duplicate copies of the deeds to the Land Registry under the Notaries Ordinance and various other instances too are covered by this Section. However, Section 2(2) of the Act sets out circumstances in which such relief is not granted.

Part II of the Act deals with designation of alternative Courts. This applies to a situation where the ordinary functioning of any court of first instance is disrupted due to any Covid 19 Circumstance. In such a situation, the

SC SD 24/2021, Petitioner Aruna Laksiri Unawatuna

4 For example, provisions relating to applicability of the draft law to certain types of contracts were held to be unconstitutional (Clauses 5,6,7, and 8 of the Draft Bill). See Articles 83 and 84 of the Constitution

5 Part I, Section 2 of the Act 6 Part II, Section 3 of the Act 7 Part III, Section 4 of the Act.

8 Section 1(1) of the Act See also Article 75 of the Constitution which sets out the Power of Parliament to make laws having retrospective effect. 9 Section 1 (2) of the Act 10 Section 8 of the Act, See also Articles 44 and 45 of the Constitution. 11 Section 2(1) of the Act

Judicial Service Commission has the discretion to designate the nearest Court of concurrent jurisdiction as the alternative Court in place of such Court. For example, if the functioning of the District Court of Polonnaruwa is disrupted in such a circumstance, the Judicial Service Commission can designate the District Court of Hingurakgoda as the alternative Court.

When such an alternative Court is constituted, the matters that were pending and the new matters that are to be filed in and considered by the Court, the functioning of which is disrupted, have to be considered by the Court that is designated by the Judicial Service Commission. However, this Provision is not applicable to,

(a) any such action, prosecution, proceeding or matter which is fixed for judgment, order or other pronouncement by the Court, the functioning of which is disrupted. (b) any such action, prosecution, proceeding or matter of which the hearings have been concluded by the Court, the functioning of which is disrupted 12

When the Court in which functioning got disrupted due to Covid 19 circumstances resumed its ordinary functions, any such action, prosecution, proceeding or matter filed in, or considered by the alternative Court as stated above, can be transferred to the first mentioned Court. However, such a transfer shall not be made when, (a) the alternative Court has reserved such action, prosecution, proceeding or matter for judgment order or other pronouncement, or (b) all hearings of such action, prosecution, proceedings or matter have been concluded before such alternative Court.13

Part III of the Act deals with conducting of Court proceedings using remote communication technology. This is a very important and salutary provision to prevent laws delays due to the Pandemic. When any person is unable to appear in Court or the proceedings of the Court cannot be conducted under the ordinary procedure due to any Covid 19 Circumstances, the proceedings can be conducted by means of a live video or live television link created using a remote communication technology 14 For this purpose, the Rules of the Supreme Court and the Court of Appeal, presently made for Digital virtual hearings and any other rules of the Supreme Court and the Court of Appeal that may be made, should apply with necessary alterations.15

3.0 Interpretation of the Term “Covid 19 Circumstance” and the Burden of Proof

In order to seek assistance under Section 2 of Act No.17 of 2021, one has to prove that he has been a victim of a Covid 19 circumstance.16 In such a situation it is important to consider how the Act has interpreted the term “Covid 19 Circumstance”. According to Section 8 of the Act, “Covid 19 Circumstances” includes, (a) Covid 19; or (b) any other circumstance arising out of or consequential to the circumstances referred to Covid 19 17

It is clear that this is a very broad definition, and the use of the word “includes” instead of the word “means” shows that the intention of the legislature is to catch up almost all the situations relating to Covid 19 into the definition.18

12

Section 3(1) of the Act. 13 Section 3(2) of the Act 14 Section 4(1) of the Act. 15 Section 4(2) of the Act 16 Section 6 of the Act, See also Section 101 and 103 of the Evidence Ordinance as well. 17 Section 18 of the Act

For example, infection of Covid 19 to the relevant person, infection to a family member which results in the person being kept under quarantine, any circumstance in which such a person undergoes a period of quarantine, lockdowns, partial lockdowns, travel restrictions, and death of a family member due to Covid 19 can be termed as Covid 19 Circumstances.

Further according to section 7 of the Act, any guidelines, directions, circular, notice or decision whether in the printed or electronic form made by the Government in relation to any Covid 19 circumstance is admissible as prima facie evidence of their existence and needs no further proof. If a party to an action, challenges the admissibility of such document in a Court of law or any other tribunal, the burden of proof is on such party to prove the inadmissibility of such document.19

It is enacted that the period excluded as relief under Section 2 of the Act should not exceed 12 months. However, the Court has the discretion to extend such period up to a maximum of 18 months, which is to grant an additional 6 month period.20

4.0 Conclusion

It is clear that Act No.17 of 2021 is salutary piece of legislation which has the effect of granting some relief to the litigants who suffer from the 3 waves of the Pandemic. It is true that certain cases have not been heard for the last two years due to the closure of Courts, as a result of the pandemic. Witnesses in some cases have died or their memories have faded away due to their old age during the period. Therefore, this new law has given some consolation to the lawyers as well as litigants in Sri Lanka.

18 See Maxwell on Interpretation of Statutes (12th Edition), Lexis Nexis Butterworths pp 270 271 for a commentary of the distinction between the two words ‘means’ and ‘includes’.

19 See Izzadeen v Director General of Civil Aviation (1996) 2 SLR 348, Prematilake v Kularathne (1996) 2 SLR 257, Rev Dharmatilake Thero v Rev Buddharakkitha Thero (1993) 1 SLR 403, and X (Employer) v Deputy Commissioner of Labour (1991) 1 SLR 222 for the meaning of the term prima facie evidence.

20 Section 5 of the Act.

DIGITAL TECHNOLOGIES FOR A BETTER LEGAL SYSTEM IN SRI LANKA

Chamika Guruge Attorney at Law, LL. B (University of London) (Hons.), LL.M (Cardiff) (Hons.)

1.0 Introduction

Technology plays a fundamental role in contemporary judicial work and life, both on and off the bench. Along with immense benefits, it imports new challenges that increasingly impact upon courts, litigants, and witnesses. Its advancement has always been a transformative force in any sector. Legal departments and law firms are becoming more attentive to the cost efficiencies provided by modern technology because the effect of legal technology is rapidly transforming their way of operating their day today work.

Digital technologies have already begun a radical transformation of the justice system and legal profession. It is observed that becoming a digital lawyer in this rapidly transforming legal arena is a vital aspect to becoming successful. As a prompt response to the Covid 19 pandemic, many courts have quickly developed video conferencing facilities as a solution for the hearing process. In reality, some courts have struggled with this due to various factors while others have navigated the process with fewer complications. This article will concern itself with how these technological advancements would enhance the existing legal system in Sri Lanka.

1 Junko Narimatsu, Aneesha Mendis and Jagath Senevirathna, ‘Digitalization is the way forward for Sri Lanka’ (World Bank Blogs, 17 May 2021) <https://blogs.worldbank.org/endpovertyinsouthasia/

2.0 Recent Rise of Digitalization in Sri Lanka

In early 2020, as a result of the island wide lockdown, most of the essential services including food supply chain, education and many other government services were severely disrupted. For example, in the food supply chain both the sellers and consumers had to face adverse effects of the pandemic. Traders were encouraged to deliver food items to doorsteps by following strict health guidelines. However, the government later advised the traders to register themselves at the Divisional Secretariats or local level administrative units before providing their services.

But that process had significantly affected due to the closure of the government offices and more importantly, there was no means to submit, and process permit requests electronically. However today, with the collaboration of the Information and Communication Technology Agency (ICTA) and various parties, the Government has been able to address such issues by introducing digital technologies.1

Similarly, Due to the Coronavirus pandemic, a large component of the legal structure has shifted to an online approach during the last year. Also,

digitalization way forward sri lanka> accessed 8 November 2022.

as a result of the digitalization of the legal framework, multiple new trends have emerged too. The rise of the digital legal system offers the delivery of justice in an efficient manner at a very low cost for courts themselves, litigants and attorneys. Therefore, digital justice promises to be a welcome transformation indeed.

E filing of written submissions in the Court of Appeal and the Supreme Court, which was introduced for the convenience of litigants during the COVID 19 pandemic, also demonstrates the advancement of technology in the justice system. Nonetheless,incomparisontotheadvancesmade by other court systems, the Sri Lankan legal system must consider a number of different aspects in its journey toward digital transformation.2

3.0 The Impact of Technology on Courts and the Judiciary

As part of the gradual digitalization reform of the country, the legal system also required rapid reform. The use of remote court hearing techniques via video conferencing or web conferencing has been a central feature of the judiciary's response to the pandemic. It is recognized by courts systems in many jurisdictions that to deliver justice in an efficient manner they have to improve both their approaches and host systems.

Further, it is examined that to modernize their systems and approaches they must digitize them. It is also observed that one difficulty of digitalization is that courts often lack the budget to introduce those technological advancements. However, Courts can improve their systems by using open sources and widely used software. Thereby courts could promote sustainability by providing external services, open sources and clouds while addressing other legal and organizational barriers such as e filling and e services submission process.3

It is to be noted that digitalization has different aspects. Some of them are the storage of data, exchange of data, improving the structure and integration of information and speeding up communication. These aspects would ensure the reduction of transaction costs and unreasonable delays in legal proceedings. It has become evident that both litigants and legal practitioners must have access to justice online, from their laptop at home.

The increasing digitization of our living environment has far reaching implications for private law and the enforcement of private rights. The legal system has changed dramatically in the last few years: the modern client shops online, looks for first legal aid online, and many lawyers communicate with their clients via the Internet.4

Policymakers have been concerned about the reform program's impact on access to justice, but

2 Justice Shiranee Thilakawardena, ‘From digitalization to the digital transformation of the justice system: An Overview Part 1’ Daily FT (Colombo, 31 March 2021)

<https://www.ft.lk/columns/From digitisation to the digital transformation of the justice system An

overview Part I/4 715604> accessed 8 November 2022.

3 World Justice Forum, ‘Working Sessions Summaries’ (World Justice Forum Report, 2019).

4 Martin Fries, ‘Man versus Machine: Using Legal Tech to Optimize the Rule of Law’ (2016) SSRN Electronic Journal

their efforts have been hampered by the lack of standard frameworks for evaluating the impact of these initiatives on access to justice. At the same time issues on data privacy and security have been prevalent with the introduction of these moderntechnologies.Digitalizingcourtshavethe ability to capture more data in order to better understand what works in terms of assisting persons in obtaining justice.

However, to do this, it is fundamental to develop an evaluation framework for digital reform efforts capable of measuring access to and the fairness of the justice system. It is also examined that existing frameworks lack objective measures of procedural justice and they do not include measures of substantive justice and systemic bias in the court system. Some of the technologies and methods of digitalization that can be adopted are discussed below.

● e Filing and Electronic Exchange of Procedural Documents

Front office technologies for civil lawsuits including e filing and other methods can be used for exchanging procedural material electronically. In the course of court proceedings, these technologies enable the exchange of data and documents created and maintained in electronic devices. E filing (i.e., the filing of procedural documents), e summoning, e delivery of deeds, e payment of court fees, and all other solutions that enables the establishment of electronic channels of communications between courts, lawyers, and litigants in civil lawsuits will bebenefittedfromtheelectronicexchangeofdata and documents in the course of judicial proceedings because it will increase the efficiency and legal certainty.

● Virtual courts

Is it really necessary for a police officer or a government servant to take hours of his valuable work to deliver a five minute testimony? Also, should an expert witness have to travel long distances across the country just to testify for a few minutes? These are the types of questions that are fueling the virtual courtroom's ascent. The impact of the virtual courtroom would be felt in many ways. The speed and quality of justice would definitely improve. It is observed that thousands of court hearings have been postponed todayduetotheabsenceofofficialwitnesseswho could testify. Obtaining this testimony would be considerably easier with a virtual courtroom, and more trials might be completed. This would also save money by not having to transport as many inmates to numerous hearings and trials daily.

● Online dispute resolution (ODR)

ODR provides a new method for resolving civil claims and disputes. ODR avoids overburdening courtrooms by using an online platform outside of the traditional court system. Rather, the case is resolved remotely by a judge or mediator and the two parties using online video conferencing technologies such as Skype or Zoom. ODR is already available in some Nordic countries, where it is accessible through the same online portal that citizens use to pay taxes, request social security, and interact with the government in other ways. Expansion of this method into other regions is expected in the coming years. The purpose of implementing ODR is to not only introduce technology into the courts but also to use it to improve the court process and to use court modernization as a chance to examine core

court processes and systems.5 The aims of ODR are to allow faster case resolutions, increased litigant engagement, more equitable outcomes, and increased court efficiency.

● Artificial intelligence

Artificial intelligence is a subset of computer technology that is trying to emulate human behaviour, and this would provide a number of opportunities for solving justice problems. In a data driven world, data transformations that integrate AI are a very crucial way for organizations to enhance speed and accelerate time to value. Artificial intelligence (AI) offers a plethora of possibilities for resolving legal issues. The use of information technology in courts as a tool for direct aid for judges, prosecutors, and clerks, court administration and case management, and communications between courts,professionals,andcourt usershas beenthe most integrated into the legal profession thus far. The advent of artificial intelligence (AI) to legal technology has transformed the sector, as well as digital applications such as contract administration, timesheets, research, and legal analytics.

● Improved client service and online legal services

In manyjurisdictions,legalservices have become more accessible as a result of the progression in artificial intelligence. The number of online platforms that allow potential clients to contact lawyers for fundamental legal services, such as trademark registration, registration, and

5 Sajith Karikkandathil, ‘How Digital Justice is Transforming the Justice System’ (Microsoft News, 30 October 2016).

execution of wills, leases, and contracts, are gradually expanding. Legal technology has introduced novel opportunities for optimizing the lawyer client connection. Various portals and collaboration platforms aid the systems, allowing for faster turn around times, virtual presence and availability, transparency into matter status, content sharing, research, and audio/video capabilities, as well as advanced security technology.6

4.0 Key benefits of digitalization of the Sri Lankan Legal System

These technological advancements and distance litigation services have numerous advantages. They would enable filing written submissions, petitions and other related documents to the courts in electronic form, litigants can also monitor the status of their applications via online, judgments and orders can be obtained easily, and a huge amount of time and costs can be reduced by the introduction of these novel technologies. When sentencing convicts with similar profiles, digital justice can assist judges in making more appropriate sentencing decisions.

Litigants can interact with the justice system in novel and improved ways with the assistance of online portals. For example, Court staff can provide information and advice, a method for paying fines and fees, and a list of opening hours via a portal, while citizens can schedule hearings for minor offences. Also, it is observed that paper based procedures create opportunities for corruption in many jurisdictions. Charge sheets

6 DiganathRajSehga,‘Digitalizationanditsimpacton the Indian legal system’ (Ipleaders, 16 September 2021) <https://blog.ipleaders.in/digitalization impact indian legal system/> accessed 8 November 2022.

and other documents may be altered or simply disappear. Cases may be dismissed due to missing documents before the defendant's guilt or innocence is determined. Attorneys and judges can use digital technology to access information remotely, such as online legal documents, briefs, caserecords,andup to datehearingschedules,as wellascommunicateandcollaborateinreal time. This type of remote interaction between judges andattorneysisalreadytakingplaceinplaceslike Israel and the Netherlands.

5.0 What’s holding back the growth of digital justice in Sri Lanka?

Even though there is a lot of momentum behind it in other jurisdictions, In Sri Lanka digital justice still has a long way to go. It is observed that the rule of law is a drawback in some countries including Sri Lanka. Also, certain digital technologies may not be permitted in the courts. On the other hand, the lack of required facilities and infrastructure are also hindering the digitization process. More importantly, it would be a challenge to train the judges and court staff to use digital technologies if the training is underfunded, which may also delay the adoption of digital technologies into the legal system.

On the other hand, the computer literacy of the vast majority of the Sri Lankan population is very low. The level of automation in record rooms is still in its early stages, with more than half of all questions requiring human intervention. The use of digital solutions like robots, bots, chatbots, more advanced Virtual Agents with Artificial

7 ABC Legal Services, ‘Legal Tech: Innovation and Access to a Digital Justice System’ (ABC Legal Services Blog, 14 October 2020)

Intelligence, and machine learning at the help desk are currently limited. As a result, each and every inquiry must be handled by a human, adding to their workload and preventing them from learning about more complex technical solutions. Even if everyone has proper access to these technological advancements, the basic challenge with this issue is that not everyone is comfortable with the new tools and methods of justice delivery. The main objective of digitalization should be to make justice more accessible to all members of society.

Aside from the growing need for widespread use of technology in court services, jurisdictions can reduce unreasonable delays by encouraging the use of alternative dispute resolution (ADR) and online dispute resolution (ODR) instead of pursuing traditional methods through the courts.7 Therefore it is recommended that Sri Lanka should also introduce alternative methods of dispute resolutions by using these modern technologies.

6.0 Conclusion

Legal systems are transitioning from legacy IT systems to digital technologies, which is redefining how justice is delivered. This could mean the return of large law firm lawyers to embody the most respected form of legal services. Without the development and implementation of fundamentally new legal structures with a long term commitment, success in the digital economy will be impossible. The legal identity of technologies, copyright and

<https://www.abclegal.com/blog/going digital in a post covid 19 justice system> accessed 8 November 2022.

related laws and insurance, in particular, must all be thoroughly examined.

Greater access to judicial services or institutions is a necessary prerequisite for improving the value they provide, but it does not guarantee that the judicial system will have a positive impact on economic growth and social development. Legality and legitimacy of judicial actions are critical prerequisites for ensuring positive effects on economic growth and social development.

It is also worth noting that these models will be formed at the worldwide level rather than at the level in individual countries, ensuring that the rules are universal. Further, it is unarguable that digital technology will have a considerable impact on legal practice. What remains to be seen is how the profession will react to this. Professional monopolies are crumbling under the weight of digitalization, and non legal competitors are increasingly filling new roles in the market. The digitization of our living environment has tremendous effects on the legal system and the judiciary Sri Lankan.

Finally, as courts become more digital, it is critical to ask technology businesses capable of building digital solutions to guarantee that the settlements achieved will respect people's rights. The ability of the developing world to access technology frameworks, the effectiveness of existing systems, institutional bias in online systems, and potential pushback from the judiciary are all concerns voiced by audience members about court digitization efforts.

Species on the Brink (Law and the Environment)

By: Subodhi Indrachapa Weerasekara

“Imagine a planet that has no bird sound, no bees to pollinate, no clean and running rivers, no forested mountains, no clean oceans and beaches, no clean air to breathe. Sapiens are driving our mother earth to this destiny. We know we cannot live alone. We are part of the nature and ecosystems. We are part of the social, cultural, economic and governance system. Unless we respect the rights of the other species, other humankind, there is less hope for our own future. Together, we can change this destiny”

Centre for Environmental Justice (2019)

1.0 Defining the Environment

Environment refers to all life forms found within forested areas and the ecological roles they perform. It encompasses not just trees, but the multitude of plants, animals, microorganisms and their associated genetic diversity.

The environment mainly consists of the natural environment and the built environment.

The natural environment or natural world encompasses all living and non living things occurring naturally, meaning in this case not artificial. The term is most often applied to the Earth or some parts of Earth. This environment encompasses the interaction of all living species, climate, weather and natural resources that affect human survival and economic activity. The concept of the natural environment can be distinguished as components:

• Complete ecological units that function as natural systems without massive civilized human intervention, including all vegetation, microorganisms, soil, rocks, atmosphere, and natural phenomena that occur within their boundaries and their nature.

• Universal natural resources and physical phenomena that lack clear cut boundaries, such as air, water, and climate, as well as energy, radiation, electric charge, and magnetism, not originating from civilized human actions.

In contrast to the natural environment, is the built environment. Built environments are where humans have fundamentally transformed landscapes such as urban settings and agricultural land conversion, the natural environment is greatly changed into a simplified human environment. Even acts which seem less extreme, such as building a mud hut or a photovoltaic system in the desert, the modified environment becomes an artificial one. Though many animals build things to provide a better environment for themselves, they are not human, hence beaver dams, and the works of mound building termites, are thought of as natural 1

The Section 33 of the National Environmental Act2 defines the environment as ‘the physical factors of the surroundings of human beings, including the land, soil, water, atmosphere, climate, sound, odors, tastes and the biological factors of animals and plants of every description’.

2.0 Biodiversity in Sri Lanka

1 Wikipedia, ‘Natural environment’ <https://en.wikipedia.org/wiki/Natural_environment> accessed on 6 January 2022 2 Act No 47 of 1980 (as amended).

Sri Lanka is one of the smallest, but biologically diverse countries in Asia. Consequently, it is recognized as a Biodiversity hotspot of global and national importance. Its varied climate and topographical conditions have given rise to this rich species diversity, believed to be the highest in Asia in terms of unit land area.

An interesting feature of the species diversity in Sri Lanka is its high degree of endemism, which is observed in several taxonomic groups. Even more interesting is the distribution of endemics. A large proportion is found in the wet zone in the southwestern region of the island.

Twenty three percent of the flowering plants are endemic and most of them are confined to the wet evergreen and wet montane forests of the central and southwest part of the country. Vegetational analysis has resulted in the identification of fifteen different floristic regions with the great majority being found in the wet and intermediate zones. The presence of many floristic regions within a relatively small area is a reflection of the high level of ecosystem diversity in the country.

The fauna of Sri Lanka is as diverse as the flora. While sharing common features with the neighboring subcontinent, the fauna exhibits very high endemism among the less mobile groups. With taxonomical revisions and descriptions of new species the number of species in each group keeps changing 3

3.0 Safeguarding the Environment in the Past

Sri Lanka has a rich tradition of environmental conservation, which had its origins in religious teachings and in customs and practices followed through time.

History proves that our exceptional leaders in the ancient times treated the species of the environment with equal rights and justice. The legend of King Elara is the ideal example that can be provided.

“King Elara was a king of the Chola Dynasty of the Chola Kingdom of South India. He conquered a part of Sri Lanka including the ancient Royal Capital of Anuradhapura and ruled it from BC 205 to BC 161. He was a just king. In other words, he was fair to everyone. His great sense of justice led him to have a ‘Justice Bell’. This was a bell which hung above his bedhead with a very long rope hanging out of the window. Anyone who had a complaint could ring this bell. The King would look into it and see that they were given a fair solution to the problem. A cow rings the ‘Justice Bell’. One day, King Elara heard the ‘Justice Bell’ and when he went outside to see who was ringing the bell, he was amazed to see that it was a cow. He also saw a dead calf lying on the road a little way from the palace. It was obvious to the King that the mother of the dead calf was ringing the bell and asking for justice. The King promptly made inquiries as to who killed the calf. To his horror he found that his son had killed the calf. The prince had been returning from a trip to the Tissa or Thisa wewa (tank) and had been driving his chariot rather recklessly. He had run over the calf with a wheel of his Royal Chariot. On seeing that it was a calf and not a human being he had gone on his way. As hard as it was for the King, his sense of justice and would not allow him to let his son, the prince, go unpunished for his crime. He had the prince put to death by having the Royal Chariot run over him. After this, the King shut himself up in the palace for days and mourned for his son.”

4.0 Religious Teachings

All religions play a role in safeguarding the rights of all beings. The environment has also been a disciple of all the religions and has received the blessings herself too. Many instances manifest the undeniable truth of this.

In Buddhism, the Kutadanta Sutta states that it is the responsibility of the government to protect trees and other organic life and that government should take active measures to provide protection to flora and fauna. According to Hinduism, when a person is engaged in killing creatures, polluting wells, and ponds and tanks, and destroying gardens he goes to hell (Padmapurana, Bhoomikhanda 96.7 8).

3 Environment Lanka, ‘Biodiversity Environment Sri Lanka’ (Environment Lanka) <http://environmentlanka.com/biodiversity/#> accessed on 6 January 2022

C.G. Weeramantry in “Tread Lightly on the Earth, Religion, The Environment and the Human Future” [Stamford Publication, 2014] cites various religious texts to emphasis that several religions speak of the need to protect the environment and follow sustainable development. He states (at page 228) “trusteeship of the universe is recognized in Islam and any violation of it by man is accountable and subject to punishment as the Qur’an states “It is He who made you trustees of the earth…Indeed your Lord’s retribution is swift, yet He is forgiving and kind (6:165)”

5.0 Under the Ruling of Kings

In centuries past, during the time of the Sinhala Kings, forests and animal life were an important part of the social fabric. They were accorded a special status and protected under the law of the land. Commenting on this aspect of social life, John D’ Oyly (1835) states that “Within Mahanuwara itself there was no doubt that the forest was strictly interdicted as a royal preserve the ditch marking the limits of the city went round the king’s great thicket, Udawattekale, and people were not allowed even to gather firewood and withes in it.”

Like the Udawattekalle, other forests were also owned directly by the king, and considered Crown property or Rajasan taka. Any sort of activity within these. “Tahansi Kalle”, or “Forbidden Forests”, was strictly prohibited. Almost every province of the Kandyan Kingdom had several such “protected areas”, where any kind of cultivation, felling of trees, hunting or fishing were strictly prohibited, and punishable by a heavy fine. The king ensured that these laws were enforced by a regular Forest Department, comprising the “Kalle Korales” appointed by him. It was the duty of these officers to ensure that the Crown forests were not damaged in any way.

Historical chronicles recorded that; animals too were given special protection. The “Niti Nighanduva”, which is the repository of ancient Sinhala law, records that all elephants were regarded as the property of the Crown, and killing an elephant was perceived as one of the most atrocious of all crimes. In keeping with the prevalent social fabric, hunting and killing of animals appears to have been generally looked down upon, for the “Niti Nighanduva” states that animal slaughter was outlawed during the last 50 years of the Kandyan Kingdom, on the grounds that it was contrary to Buddhist principles.

Respect for forests and all forms of animal life was thus not only deeply enshrined in the moral and legal codes of the ancient Sinhalese, but it was also a part of their way of life.4

6.0 The Need to Enforce Laws to Protect Fauna and Flora

The environment is extremely important for any human to have a healthy life as well as economic growth. According to the views of Sarath N. Silva in 2009, “environmental law developed only during the last two decades and in the early part of the 20th century there was little concern with protecting the environment. Instead, natural resources were exploited in order to enhance the economic capacity of the people. The thinking has changed, and we now know that if natural resources are not managed properly and if pollution is not controlled, the economic gains would be of little use”. In that context, identifying the economic cost of environmental harm and pollution is important.

Most of the time the polluter will pay no charge during his period, however his ignorance will lead to a limitation of certain opportunities for the future generation. This is contrary to the popular sustainable development principle under international environmental law. According to the World Commission on Environment and Development sustainable development means ‘development that meets the need of the present without compromising the ability of the future generation to meet their own needs’. Basically, it emphasizes a ‘participatory, multistakeholder approach to policy making and implementation, mobilizing public and private resources for development and making use of

4 Ministry of Mahaweli Development and Environment, ‘Conservation in Ancient Sri Lanka Clearing House Mechanism Sri Lanka’ (Ministry of Mahaweli Development and Environment, 2016) <http://lk.chm cbd.net/?page_id=178 > accessed on 6 January 2022

the knowledge, skills and energy of al social groups concerned with the future of the planet and its people’. In this regard, it focuses more on the rights of the future generation in use of the environment and its protection 75

Some principles from the Rio De Janeiro Declaration can be cited as follows.

“Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature (Principle 1 Rio De Janeiro Declaration). In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it (Principle 4 Rio De Janeiro Declaration)”

With consideration to all of these, it’s crystal clear that the enactment and enforcement of laws to protect the environment has been a mandatory task.

7.0 Origin and Evolution of Laws to Protect the Environment in Sri Lanka

Environmental law is a body of law, which is made up of a series of complex and interlocking statutes, common law, treaties, conventions, regulations and policies which, very broadly, operate to regulate the interaction of humanity and the rest of the biophysical or natural environment, for the purpose of reducing or minimising the impacts of human activity, both on the natural environment and on humanity itself. Environmental law draws from and is influenced by principles of environmentalism, including ecology, prevention, conservation, responsibility, sustainability and cooperation.6

Modern environmental law in Sri Lanka has evolved from and has been moulded by the principles of Roman Dutch Law, English Law, legislation, international treaties and judicial decisions 7

The modern history of environmental law and policy in Sri Lanka can be traced back to mid 19th Century. In 1848, The Timber Ordinance was introduced to preserve forests for timber production. In 1873, the protection of natural forests above 5,000 feet as reserves was advocated. The Forest Ordinance of 1885 afforded some protection of forests, primarily for sustainable wood production but also afforded limited protection of wildlife in forest reserves. This was developed further in 1907 with the enactment of Forest Ordinance No. 16 of 1907 with some protection for forests and products in reserved forests, village forests and for the controlled exploitation of timber. In 1938, the clearing of forests above 5,000 feet was prohibited.

In 1929, the first authoritative forest policy statement on species protection was issued and in 1937 the Fauna and Flora Protection Ordinance (FFPO) was enacted. However, the Ordinance only applied to State land and did not apply to privately owned land. In 1964, through an amendment to the 2 FFPO, nature reserves and jungle corridors were formally recognized as protected areas and national reserves.

In 1982, the Mahaweli Environmental Project established a network of protected areas in the upper catchment areas of the Mahaweli River. In 1988, the National Heritage Wilderness Area Act No. 3 established a national heritage protection scheme for those forests possessing a unique ecosystem, genetic resources or outstanding natural features.

Amendments to the Fauna and Flora Protection Ordinance in 1993 added refuges, marine reserves and buffer zones as additional categories to the definition of a “national reserve”.

5 G Liyanage, ‘‘Applicability of the International Environmental Law Principles to the Sri Lankan Environmental Laws: Special Reference to Principle of Polluter Pays and Inter Generational Equity’ (2017) 14(4) South East Asia Journal of Contemporary Business, Economics and Law 70.

6 S Tilakawardane, N Udalagama, N Dissanayake and L Wimalachandra, Judges & Environmental Law A Handbook for the Sri Lankan Judiciary (Environmental Foundation Limited 2009). 7 ibid.

Sri Lanka’s Constitution contains two references to the environment. Firstly, under the ‘Directive Principles of State Policy’ in Chapter VI, the State is required to ‘protect, preserve and improve the environment for the benefit of the community’ [Article 27(14)]. These Directive Principles are supposed to ‘guide Parliament, the President and the Cabinet of Ministers in the enactment of laws and the governance of Sri Lanka’ [Article 27(1)] Secondly, under the Article on ‘fundamental duties’ in the same chapter, it is the duty of every person in Sri Lanka to protect nature and conserve its riches’ [Article 28(f)]: There is thus a shared responsibility between the State and the community to ensure environmental protection.

Although it is expressly declared that the Directive Principles and Fundamental Duties ‘do not confer or impose legal rights or obligations and are not enforceable in any court or tribunal’ (Article 29), no part of the 3 Constitution can be dismissed as redundant. These Directive Principles have today been linked to the ‘public trust’ doctrine and should guide State functionaries, from lowest to highest, in how they exercise their powers. At the same time, the ‘fundamental duties’ of citizens are often cited by petitioners in public interest litigations to justify their locus standi to file environmental cases.

Articles 11, 12 and 13 of the Fundamental Right Chapter set out rights available to every ‘person’ while Article 14 sets out certain additional rights available to every ‘citizen’. Article 15 sets out the circumstances in which such rights may be restricted. Unfortunately, there is no explicit reference to the environment in the ‘Fundamental Rights’ chapter (Chapter III). Neither is there an expressly declared ‘right to life’ in the Constitution.

Judicial decisions have contributed significantly to the development of environmental law. There has been growing awareness among courts, and judges have recently shown an increased willingness to intervene in environmental matters, as evidenced in the recent past 8

8.0 International Environmental Agreements

8.1 Introduction

A broad range of environmental problems are now governed by Multilateral Environmental Agreements (MEAs). These include atmospheric pollution, marine pollution, global warming and ozone depletion, the dangers of nuclear and other extra hazardous substances and threatened wildlife species. These are all now the subject of international concern. In many cases pollution generated from within one particular state has a serious impact on the states. Environmental problems cannot be resolved by states acting on their own and international cooperation is vital for many modern environmental challenges to be dealt with effectively.9

An international environmental agreement or sometimes environmental protocol, is a type of treaty binding in international law, allowing them to reach an environmental goal. In other words, it is "an intergovernmental document intended as legally binding with a primary stated purpose of preventing or managing human impacts on natural resources."

An agreement between two nations is known as a bilateral environmental agreement. If the agreement is made among three or more nations, it is called a multilateral environmental agreement (MEA). Such agreements, primarily produced by the United Nations, cover subjects such as atmospheric policies, freshwater policies, hazardous waste and substance policies, the marine environment, nature conservation policies, noise pollution and nuclear safety.10

8 Justice K Sripavan, ‘Judicial Innovations in Environmental Jurisprudence Sri Lankan Experience’ (Asian Judges Network on Environment) < https://www.ajne.org/sites/default/files/event/2052/session materials/kanagasabapathy sripavan judicial innovations in environmental jurisprudence sri lankan exper.pdf> accessed 9 January 2022. 9 (n 6).

10 Wikipedia, ‘International environmental agreement’ (Wikipedia) <https://en.wikipedia.org/wiki/International_environmental_agreement> accessed 9 January 2022.

8.2 Ramsar Convention on Wetlands 1971

The Convention on Wetlands is an intergovernmental treaty adopted on 2 February 1971 in the Iranian city of Ramsar, on the southern shore of the Caspian Sea. Thus, though the name of the Convention is written “Convention on Wetlands (Ramsar, Iran, 1971)”, it has come to be known popularly as the “Ramsar Convention”. Ramsar is the first of the modern multilateral environmental agreements on the conservation and sustainable use of natural resources, and compared with more recent ones, its provisions are relatively straightforward. It is unusual in establishing commitments at site level as well as at the level of national policy.The mission of the Ramsar Convention, as adopted by the Parties in 1999 and refined in 2002, is “the conservation and wise use of all wetlands through local and national actions and international cooperation, as a contribution towards achieving sustainable development throughout the world” 11

8.3 Vienna Convention for the Protection of the Ozone Layer, 1985

The Vienna Convention was the first convention of any kind to be signed by every country involved, taking effect in 1988 and reaching universal ratification in 2009. This speaks to the enormity of ozone depletion at the time and the willingness of countries around the world to work together to solve it. The Convention aimed to promote cooperation among nations by exchanging information on the effects of human activities on the ozone layer. In doing so, the creators of the Convention hoped policymakers would adopt measures to combat those activities responsible for ozone depletion.12

8.4 Convention on Biological Diversity, 1992

The objectives of this Convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.13

8.5 Kyoto Protocol, 1997

The Kyoto Protocol implemented the objective of the UNFCCC to reduce the onset of global warming by reducing greenhouse gas concentrations in the atmosphere to "a level that would prevent dangerous anthropogenic interference with the climate system" (Article 2). The Protocol was based on the principle of common but differentiated responsibilities: it acknowledged that individual countries have different capabilities in combating climate change, owing to economic development, and therefore placed the obligation to reduce current emissions on developed countries on the basis that they are historically responsible for the current levels of greenhouse gases in the atmosphere.14

9.0 Practical Limitations encountered in carrying out the Relevant Litigation

"Human beings are entitled to a healthy and productive life in harmony with nature”.15

11 Ramsar Convention Secretariat, An Introduction to the Ramsar Convention on Wetlands (5th edn, Ramsar Convention Secretariat 2016).

12 UNEP Ozone Secretariat, ‘The Vienna Convention for the Protection of the Ozone Layer’ (UNEP, 2022) from <https://ozone.unep.org/treaties/vienna convention> accessed on 9 January 2022.

13 United Nations ‘Convention on Biodiversity, key international instrument for sustainable development’ (United Nations) <https://www.un.org/en/observances/biological diversity day/convention> accessed on 9 January 2022.

14 Wikipedia, ‘Kyoto Protocol’ (Wikipedia) <https://en.wikipedia.org/wiki/Kyoto_Protocol> accessed on 9 January 2022.

15 Agenda 21, UN Doc A/CONF.151/26, Annex I, Principle 1 (June 13, 1992).

The environmental legislation has not always been practical, either because the laws are too ambitious or unrealistic in certain parameters, or because they have lacked effective instrumentation and institutional support. Some environmental regulations have not succeeded as they do not match the technical requirements and economic reality of the country or region, or because they do not take the institutional capabilities of the society that has to implement them into consideration.16

The Democratic Socialist Republic of Sri Lanka is grappling with conservation of its natural resources. Sri Lanka's environment has been degraded by plantation agriculture, temporary cultivation and, in recent decades, ethnic conflict and industrial growth. The country faces compound challenges in enforcement of environmental laws and regulations. Sri Lanka's actions to protect natural resources directly affect future sustainability of agriculture and development that could alleviate the poverty of its people.

Due to the tension between environmental protection and economic development in Sri Lanka, enforcement of environmental laws presents special challenges. Changes in social attitude about use of the environment come slowly and sometimes grudgingly. Enforcement of environmental laws is often at odds with traditional uses of natural resources by indigenous people and with income producing uses by owners and investors. Environmental law enforcement has received new emphasis from local police officials, magistrates and lower court judges 17

The impracticality of some areas of the law starts with the issues arising from the occupations of rural people. A fisherman who makes a living by selling the fish he catches can be brought before a court and punished for his actions. The farmer who finds a living through chena cultivation faces the same plight at times. It might be true that these acts cause harm to the fauna and flora and that the enforcement of the law is mandatory for the protection of the environment. Nevertheless, the bodies enacting the laws should step down to the ground level and seek out the reason as to why these people are engaged in these activities. These are the occupations that have been handed over to them by their ancestors. The legends of these trace back to times unimagined. If authorities enforce laws, all of a sudden, the livelihoods of these people will be taken from them within minutes. This will make matters more complex tenfold.

Another similar scenario can be cited as follows.

Hunting used to be the traditional method of sustenance for ancient Veddahs, but it is no longer sustainable due to restrictive forest and wildlife conservation laws. Now, the Veddah community requires a permit to enter local forests, which have been increasingly marked out as National Reserves. Under current laws, Veddah community members are only allowed to carry bows and arrows to collect bee’s honey and pick herbal plants, and they must obtain special permission to carry their traditional Keteriya an indigenous axe when entering a Forest Reserve.

The law also prohibits Veddah from hunting wild animals in sanctuaries and national reserves, pushing them to adopt new means and ways of sustenance that challenge the traditional ways of life which have prevailed since the time of their ancestors 18

Thus, it’s imperative that the protection of the environment be coin sided with the practicality of its surroundings.

10.0 Some Notable Sri Lankan Judgements related to Fauna & Flora

16 S Singh and S Rajamani S, ‘Issues of environmental compliance in developing countries’ (2003) 47(12) Water Sci Technol

17 Jane Schukoske, ‘Enforcing Environmental Laws in Sri Lanka Through Fundamental Rights Litigation’ (2009) SSRN Electronic Journal.

18 Dr Kokila Konasinghe, ‘Climate justice for Vanniyalaththo: the tragic tale of the men of the jungle in Sri Lanka’ (The Association of Commonwealth Universities, 2021) <https://www.acu.ac.uk/get involved/cop26 commonwealth futures climate research cohort/themes climate justice/kokila konasinghe/> accessed on 10 January 2022

▪

Centre for Environmental Justice v. Anura Satharasinghe et. al, W.P. 291 of 2015, Sri Lanka Court of Appeal (16 November 16, 2020) (Wilpattu forest case).

Bulankulama v. Min. of Industrial Development (Eppawala case), S.C. Application No. 884/99 (F/R). ▪

▪

Environmental Foundation Ltd. And Others vs. Mahawali Authority of Sri Lanka and Others. ▪

▪

▪

▪

▪

Ravindra Gunawardena Kariyawasam v Central Environmental Authority and others (Chunnakam Power Plant Case), FR Application No. 141/2015 (SC., 2019).

Watte Gedara Wijebanda v Conservator General of Forest and eight others, FR Application 118/2004 (SC., 2007).

Jayawardena v Akmeemana Pradeshiya Sabha & Others 1998 1 SLR 316 Violation of Sections 23A E and S.26 of NE Act.

Dissanayake and Others v Geological Survey and Mines Bureau and Others 2011 2 SLR 354.

ENVIRONMENTAL FOUNDATION LIMITED vs URBAN DEVELOPMENT AUTHORITY OF SRI LANKA AND OTHERS (Galle Face Green case).

In conclusion, as the Great Arahath Mahinda Thero to King Dewanampiyatissa once said at Mihintale, “Your majesty, the birds that glide the skies and the animals that roam the forest have an equal right to live and move anywhere in this country as you have. The land belongs to the people and all other living beings. You are only its trustee”.

C.G.

WEERAMANTRY;

“A JUDICIAL GIANT IN INTERNATIONAL LAW”

By: Shenoli Gamage

Sri Lankabhimanya Christopher Gregory Weeramantry, an outstanding Judge and Jurist of Sri Lanka’s legal fraternity was known to be a renowned scholar and the Vice president of the International Court of Justice, who played a crucial role in strengthening and expanding the rule of international law.

Born on the 17th of November 1926 in Colombo, the late Justice C.G. Weeramantry earned his primary education at the Royal College, Colombo, where he excelled in both academics and extracurricular, held notable roles within the school premises. He showed exemplary leadership as a senior prefect and held notable roles in school such as the editor of the Royal College Magazine, Chairman of the Senior Literary Association and won many class and school prizes as well as earned the Governor’s Scholarship, Principal’s prize and the Empire Essay Prize awarded by the Royal Empire Society in 1943.

He gained a Bachelor of Arts with Honors from the newly established University of Ceylon and proceeded to obtain an LLB and LLM from King’s College London. After the completion of his exams at the Law College of Colombo, he took oaths as an advocate of the Supreme Court of Ceylon in 1948.

As the late Justice Weeramantry began his law practice in Colombo that continued until 1965, he was appointed as the Commissioner of Assize, holding the post until 1967 when he was called to the bench as a Judge of the Supreme Court of Ceylon. As he bid farewell from the Supreme Court in 1972, he moved to Australia where he was an emeritus professor at Monash University, having previously served as Sir Hayden Starke's Chair of Law at the institution from 1972 to 1991.

Justice Weeramantry then went on to serve as a Lecturer and Examiner at the Colombo Law College and a member of the Council of Legal Education in Ceylon. Justice Weeramantry not only had served as a visiting professor at the University of Colombo but also at distinguished foreign institutions such as Harvard University, University of Hong Kong, University of Florida, University of Papua New Guinea, University of Stellenbosch and University of Tokyo. He was an honorary member of the Advisory Committee of the Environmental Law Institute and was the Chairman of the International Council, Institute of Sustainable Development, McGill University.

Justice Weeramantry was appointed as a Judge of the International Court of Justice (hereinafter ICJ) in The Hague in 1991, which marked a golden milestone in his legal career, later becoming its Vice president in 1997. He then presided as Vice president over several important cases before the court, including a case on the illegality of the use and threatened use of nuclear weapons. He served the ICJ as an Ad hoc Judge during the period between 2000 to 2002. Weeramantry served at the Legal and Human Rights Advisory Board of the Genetics Policy Institute and was the President of the International Association of Lawyers Against Nuclear Arms. In addition, C.G. Weeramantry served as a councillor for the World Future Council, and as the honorary patron and as an international advisor of the Centre for International Sustainable Development Law.

Justice Weeramantry needs no introduction to Sri Lanka. He is without doubt the country’s most renowned Jurist. His writings have contributed immensely to changing views on the many subjects he has written. He has won international recognition for his work, through awards such as the UNESCO Prize for Peace Education, the Right Livelihood Award (Alternative Nobel Prize) and the Lifetime Achievement Award of the Nuclear Age Peace Foundation.1 He was also awarded an honorary Doctor of Laws from Monash University in 2001 and was made an Honorary member by the Order of Australia in 2013 for his service for Law.

Judge Weeramantry’s contribution to international law was considered so noteworthy that when the City of The Hague celebrated its 750th Anniversary in 1996, he was selected as the personality representing The Hague’s excellence in international law, one of 18 areas in which The Hague had achieved distinction over the years.

During his time with the ICJ, he helped to establish environmental law as an independent branch of international law. Surrounded by Westphalian positivism with its linear line of thought in the high portals of the ICJ,

1 'Pressreader.Com Digital Newspaper & Magazine Subscriptions' (Pressreader.com, 2022) <https://www.pressreader.com/sri lanka/sunday times sri lanka/20141116/282183649348470> accessed 7 February 2022.

Weeramantry pioneered a legal philosophy that challenged the status quo and that promises to live through the scholarly judgments penned by him. The mark he leaves extends to various areas of jurisprudence, including international environmental law, among others.2

Judge Weeramantry’s tireless advocacy for peace and intercultural understanding was evident in his scholarly career. Apart from holding numerous professorships at prestigious universities, he was the author of numerous books and articles on subjects such as human rights, equality and religious understanding.3

Weeramantry’s nine years in the ICJ were characterized by several key judicial opinions which enriched the judicial methodology of the court amidst ushering in a breadth of creative borrowing from diverse sources. He is most well known for his dissent in the ‘Nuclear Weapons Advisory Opinion 1996’, 4 where he held the use of nuclear weapons to be illegal in all cases. Two decades later, the judgment is yet regarded as the judicial bible of pacifism and humanitarianism.5 Holding the employment of nuclear weapons to be a negation of humanitarian law and one with the potential of striking a mortal blow on human existence itself, Weeramantry, through citations from various traditions and schools of thought, established a convincing narrative on dangers posed by nuclear weapons, hence prohibited their usage even as a self defence strategy.

In the Gabcikovo Nagymaros Project Case,6 which took place in 1997 at the ICJ, Vice President Weeramantry in his separate opinion addressed three questions that dealt with environmental law aspects. To the first question which concerned sustainable development, he stated that both the right to development and the right to environmental protection are principles currently forming part of the corpus of international law, and they could operate in collision with each other unless there was a principle of international law that indicated how they should be reconciled.

He stressed the importance of the continuous environmental impact assessment of a project as long as it continues in operation on the second question. The duty of environmental impact assessment is not discharged merely by resort to such a procedure before the commencement of a project. Standards to be applied during such monitoring are standards prevalent at the time of assessment and not those in force at the project commencement. The third question was whether principles of estoppel which operate between parties were appropriate in matters relating to the environment which did not merely concern them, but to a wider circle question involving duties of an erga omnes nature may not always be appropriately resolved by procedures fashioned for inter parties disputes. Judge Weeramantry drew attention to the fact that this aspect needed careful consideration.

Justice Weeramantry on his involvement in issues relating to local politico legal reforms in recent times was deemed noteworthy. The submissions he made to the Presidential Commission on LLRC in 2010 was very relevant in order to create an inclusive Sri Lankan Nation.

He stressed, “In order to promote unity and reconciliation, two areas urgently needing attention are institutional and administrative measures relating to peace education and legislative measures essential for building confidence and trust”

He also stressed that Sri Lankan Judges, unlike western Judges, possessed the benefit of cross cultural perspectives. As per his words, “A Western judge tends largely to grow up in a mono cultural setting and does not, in general, have this diversity of background. When it comes to administering the law this diversity of background gives the Sri Lankan judge the advantage of a great deal of tradition and cross cultural perspectives. To my way of thinking

2

'Remembering Justice CG Weeramantry, Humanist Par Excellence' (The Wire, 2022)

<https://thewire.in/uncategorised/justice c g weeramantry> accessed 7 February 2022.

3 'Christopher Gregory WEERAMANTRY (1926 2017)' (Records Archives, 2022)

<https://www.monash.edu/records archives/archives/officers and awards/tributes to monash identities/christopher weeramantry> accessed 7 February 2022.

4 Nuclear Weapons Advisory Opinion (1996) ICJ 2. 5 (n 2).

6 Gabcikovo Nagymaros Project Case (1997) ICJ Rep 3.

the law can be greatly advanced specially to suit the needs of the 21st century…. This diversity of background can assist greatly in enriching the law”.7

The late Jurist C.G. Weeramantry was a pioneer in founding two prestigious institutions which contributed to the legal fraternity of the country:

1. Weeramantry International Centre for Peace Education and Research

The Weeramantry International Centre for Peace, Justice and International Law (“Weera Centre”) is an initiative organization led by a group of working professionals who were willing to take forward the bright and illuminating legacy of the great teacher, lawyer and Judge; His Excellency Christopher Gregory Weeramantry.8

The research centre comprises a group of volunteers driven by unending love for international law and pure deference for the life and work of Christopher Weeramantry. The organization’s vision is to promote knowledge with value and order with justice. Their mission is to conduct stimulating academic events and to contribute to the peace oriented policy making process. These working professionals have mandated themselves to undertake rigorous advocacy for human rights within and without the court of law.

The immediate plans within the organization include conducting fruitful, purpose based activities and spreading the message of peace, co existence and mutual respect. While the organization works to pursue this, they aim to bring the legal fraternity closer to international law, because, according to them, the discipline is yet to get its due in many parts of the world.

2. The Law Students’ Association of Sri Lanka (LSASL)

The Law Students’ Association of Sri Lanka (LSASL) was established by Professor Weeramantry in 2009. The organization is a non political and non profit body representative of the law student population of Sri Lanka, and it is the only student association that represents all private and governmental legal education institutions to this date. The LSASL acts as the National Chapter of the Asian Law Students Association (ALSA), which is an amalgamation of law students across 15 Asian countries that has further partnered with the Australian Law Students’ Association (ALSA) and the European Law Students’ Association (ELSA).

The association was built with the purpose of focusing on and developing the social character of Law students in order for them to be able to adapt to the ever evolving society. This organization has committed to the ideals of legal scholarship and social responsibility and thus, believes that it will improve the quality of future lawyers and the legal system of Sri Lanka. The LSASL facilitates academic coordination and cooperation among a vast number of law students in Sri Lanka who receive their legal education across various institutions. It also helps to establish and maintain contacts, promoting goodwill and collaborative skills between law students on both local and international platforms.9

We have witnessed that his excellency, the late Justice Christopher Gregory Weeramantry donned in different personas of; an anti colonialist, a universalist, a humanist, a Judge, a scholar and educator par excellence, a peacebuilder, an environmentalist and a revolutionist in his own unique way.

Justice Weeramantry was a Jurist of striking range, depth, independence and erudition. He was a man of immense kindness and gentility around all those who loved and admired him dearly. The demise of this international jurist has left a void in public international law that will be difficult to fill, and the honour and legacy of this personality will continue to greatly inspire generations to come.

7 'Tribute To Justice Weeramantry: A World Free of War, Hate and Prejudice' (Groundviews, 2022) <https://groundviews.org/2017/01/10/tribute to justice weeramantry a world free of war hate and prejudice/> accessed 7 February 2022.

8 'About CG Weeramantry' (Weeramantry Centre for Peace, Justice and International Law, 2022) <https://weeracentre.org/about judge weeramantry/> accessed 7 February 2022.

9 LSASL Blog <https://lsaslblog.wordpress.com/> accessed 2 February 2022.

BOOK REVIEW

BOOK OF THE MONTH: BECOMING - MICHELLE OBAMA

Becoming - Michelle Obama Book of the Month:

Becoming by Michelle Obama was written and published on 13 November 2018. It is the memoir of former First Lady of the United States Michelle Obama and is described by the author as a deeply personal experience. The book talks about her roots and how she found her voice, as well as her time in the White House, her public health campaign, and her role as a mother.

Michelle LaVaughn Robinson Obama is an American attorney and author who served as First Lady of the United States (FLOTUS) from 2009 to 2017. She was the first African-American woman to serve in this position. She is married to the former US President Barack Obama, who was the first African American to be elected President of the United States.

MOVIE REVIEW

MOVIE OF THE MONTH: ON THE BASIS OF SEX (2018)

PhotobyAjeetMestryonUnsplash

On the Basis of Sex (2018) Movie of the Month:

On the Basis of Sex is an American legal drama film based on the true story of Ruth Bader Ginsburg, her struggles for equal rights, and the early cases of a historic career that lead to her nomination and confirmation as U.S. Supreme Court Associate Justice. It follows the life and and early cases of Supreme Court Justice Ruth Bader Ginsburg, who served as an Associate Justice of the United States Supreme Court from 1993 to her death in 2020, and became the second woman to serve on the US Supreme Court. The movie is directed by Mimi Leder and written by Daniel Stiepleman (Ginsburg's real-life nephew) starring Felicity Jones as the late Justice.

PhotobyYasinAribugaonUnsplash

Podcast of the Month: Bloomberg Law Podcast

The Bloomberg Law podcast, which is hosted by Emmy Award–winning journalist June Grasso, analyzes a plethora of legal issues and major cases in the news. While the show doesn’t release episodes on a set schedule, you can usually expect a few releases each month. The episodes examine different areas of law through interviews with legal scholars and practising attorneys.

The podcast can be accessed online for free by visiting the website, https://www.bloomberg.com/podcasts/series/law. It can also be accessed on Spotify, Apple and Google Podcasts as well.

PhotobyJonTysononUnsplash

ARTICLE SUBMISSIONS

THE IMPORTANCE OF LANGUAGE IN PROTECTING SRI LANKA’S NATIONAL INTERESTS

By: Shanuka Kadupitiyage

Amongst the many circumstances that are plaguing the country’s economic and political arena, Sri Lanka has managed to create yet another controversy with the Sri Lanka Rupavahini Corporation changing its trilingual logo to a monolingual one, displaying only the Sinhala language following a resolution by the new Chairman and the Board of Directors.

Needless to say, the action has amassed some backlash and discontent, although most of the outrage has been muffledgiven the current economic crisis taking priority innews headlines. Although under reported, thedecision will no doubt harbour major repercussions in the country’s political climate. In fact, this decision, which clearly reflects an apparent ‘Sinhala first’ messaging, may be interpreted as another clear example of Sri Lanka’s self destructive view in terms of language, culture which could have long term and short term harm to the protection of its national interests.

1.0 Crucial for the Country

National interests are key goals that a country wishes to achieve and is a term that is used frequently in the study of international relations and diplomacy. To name a few examples, it is in Sri Lanka’s national interests to achieve economic independence, protect its archaeological and cultural legacy and ensure its sovereignty and independence. Being the small nation it is, Sri Lanka depends on its ability to build diplomatic ties with the international community in order to protect these interests.

Language plays a crucial role in this effort, and its relevance goes far beyond the advantage of having diplomats and delegates who are competent in international languages. Sri Lanka’s attitude regarding languages within its own borders is also a critical factor in protecting its national interests.

2.0 All about Image

‘Image’ is another term widely used in the field of diplomacy, but it is also relevant in the field of public relations. For Sri Lanka to have advantage in the international arena, a positive image needs to be projected and associated with the country’s identity. In a nation that’s culturally and ethnically diverse as Sri Lanka, showcasing harmony and coexistence among its people can play a major role in doing so. Not only that, but it would also provide good cushioning to dilute negative views towards the country if any ethnically charged conflict does arise.

It would also assist in creating a more united people which can help reduce conflict, increase trade and economic growth between ethnic groups, and overall strengthen the nation within its borders from external influences and pressures, assisting in its unified growth. Political advantage may be another added advantage as well.

Actions and stances taken bystate media andotherorganisations playa largerole inprojecting thispositive image. One example of which could have been the previous logo of Sri Lanka Rupavahini (emphasis added), which included all three main languages spoken within the country. The switch towards a ‘Sinhala only’ logo tarnishes said projected image and projects an apparent linguistic and ultimately racial bias.

Projecting such an image can have certain repercussions to the view of Sri Lanka in the eyes of the international community, especially as the country has failed to completely shake off the tarnished image caused by three decades of civil war between the nation’s ethnic majority and minority as well as the 2019 riots subsequent to the Easter Sunday bombings.

This may lead to certain disadvantages when dealing with the world, including when in the process of obtaining economic assistance in the form of development funds and obtaining eligibility in special international trade tariff schemes such as GSP+.

3.0 Preventing ‘Tribalism’

Such dividing actions will no doubt aggravate a form of ‘tribalist’ reaction within a portion of the country’s population, which can have severe repercussions to the protection of Sri Lanka’s cultural heritage.

For example, many Buddhist historical monuments exist in the northern and eastern provinces, regions where Sri Lanka’s ethnic minority is a majority. The same can be said of many Tamil and Islamic historical monuments exist in Sinhala majority regions.

Asthe‘Sinhalafirst’mentalityspreads,itwillnaturallycreateadefensivereactionfromminoritygroups,resulting in both groups from failing to see each other’s cultural heritage, including each archaeological and historical monuments from both communities as a collective Sri Lankan cultural heritage. This would result in an apathetic view of each ethnic group’s historical monuments, which will undoubtedly affect the protection they could potentially receive from external threats, be it the looting of valuable artefacts or vandalism.

However, this is only scratching the surface in terms of how the existing ethnic tensions and racial biases prevailing in the country have already harmed Sri Lanka’s unique and priceless archaeological heritage. For defence of which needs to also be done on international waters, against other nations who may wish to overwrite Sri Lanka’s history in the eyes of the international community through biased archaeological research, strong arming soft power in the region.

Sri Lanka needs capable archaeologists who are proficient in English to defend and refute purposefully ‘mistaken’ observations made with such purposes. Accurate peer review cannot happen if the experts in the field are unable to arteculate themselves in the international community.

4.0 Not Just One

While it is true that protecting the Sinhala language and the unique culture of the Sinhalese ethnic group is important, even essential. Especially with its relevance in Sri Lanka’s overall heritage and given the fact that it is a language that relies on the Sri Lankan Sinhalese people for its existence; a small minority in the global population.

However, it is clear that the current policy of exclusivism and putting ‘Sinhala first’ is not the correct approach if the Sinhala language and its essence is to truly be protected. A more collaborative spirit, that is willing to share and accommodate, as well as co exist is necessary, not only for the protection of the language and its culture, but also for Sri Lanka and its future survival as well.

UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IN LIGHT OF DOMESTIC LEGISLATION OF SRI LANKA AND THE UNITED KINGDOM

By: Maldini Herath1

ABSTRACT

This paper explores the UN Convention on Contracts for the International Sale of Goods (CISG)2 in light of Sale of Goods Acts in Sri Lanka and the United Kingdom. As Sri Lanka and the United Kingdom have not yet ratified the CISG, the paper delves into strengths of this International Convention. A close study has been done on the provisions of the domestic sale of goods legislation of Sri Lanka and the United Kingdom. This analysis is followed by an examination of the key provisions of the UN Convention on Contracts for the International Sale of Goods. Subsequently the advantages of ratifying this Convention have been detailed out with an unbiased critique of the CISG. This has been followed by a study of selected case law that had referred to the CISG. Finally, the author has observed whether Sri Lanka and the United Kingdom should ratify this Convention and the paper concludes with the firm belief of the author that these two jurisdictions should ratify the CISG to benefit from various provisions in the UN Convention.

Keywords: CISG, Sale of Goods, International Trade

1.0 Introduction

The United Nations Convention on Contracts for the International Sale of Goods promotes the harmonization of international sales law.3 The CISG has been compared to a construction site, with stages of education, critique and development.4 The drafters of the CISG believed that a uniform law would reduce transaction costs by eliminating the ignorance of foreign laws.5 Thus the objective of the CISG is to facilitate smooth international trade.6 In fact, the CISG is an institutional arrangement that contributes to reducing the transaction costs in international trade.7 Globalization requires the awareness of other legal systems.8 And the CISG aims to unify the law on international sale of goods.9 The CISG also diminishes contractual challenges over the choice of subsidiary applicable law.10

1 Legal Apprentice, LLB (UOC).

2 Hereinafter CISG.

3 ‘United Nations Conventionon Contractsfor theInternational Sale of Goods’ (1980) <http://cisgw3.law.pace.edu> accessed 30 January 2022

4 Peter Schlechtriem, ‘Interpretation, Gap Filling and Further Developmentof the U.N. Sales Convention’ (2004) 16 Pace Interntional Law Review.

5 Marco Torsello, ‘Substantive and Jurisdictional Aspects of International Contract Remedies’ (2005) 25 International Review of Law and Economics.

6 Mark Cantora,‘TheCISGafter Medellin v.Texas(2009)8JournalofInternationalBusinessand Law.

7 Lisa Spagnolo, CISG Exclusion and Legal Efficiency (Kluwer Law International 2014).

8 Bruno Zeller,‘TheUNConvention on Contractsfor the International Sale of Goods (CISG) A Leap Forward towardsUnified InternationalSalesLaw’ (2000)12 Pace International Law Review < http://digitalcommons.pace.edu/pilr/vol12/iss1/4> accessed 08 February 2022

9 Alexander S.Komarov,‘Internationality,Uniformity and Observance of good faith ascriteriain interpretation of CISG:Someremarkson article7(1)’ (2005) 25Journalof Law and Commerce <https://uncitral.un.org/sites/uncitral.un.org/files/media documents/uncitral/en/komarov.pdf> accessed 6 February 2022

Another objective of the unification of substantive trade law is maintaining global peace.11 At the 2005 UNCITRAL colloquium, it was observed that the CISG is a neutral and modern framework for the contract of sale, functioning as the pillar of international trade in many nations.12 State parties to the Convention vary from the least economically developed to the most developed, and many legal traditions of the world are represented among them.13

This paper explores the strengths of the CISG as opposed to domestic legislation of UK and Sri Lanka. To do so, the domestic statutes of these respective jurisdictions have been compared with each jurisdiction, with a subsequent study of the ‘international’ element of the CISG. The author believes that UK and Sri Lanka should ratify the Convention.

2.0 The English Sale of Goods Act 1893, and the Sale of Goods Ordinance No.11 of 1896 of Sri Lanka

Both UK and Sri Lanka have not yet ratified the CISG.14 And these jurisdictions have almost identical Sale of Goods Acts respectively. This would be evident by the following analysis of the provisions of the UK Sale of Goods Act 1893, and the Sale of Goods Ordinance No.11 of 1896 of Sri Lanka.

Provisions pertaining to the formation of contract are embodied in Sections 2, 3 and 4 of the UK Act15 and the SL Ordinance16 respectively. It is important to note that both the Sections and the subject matter in the Sections are identical in the statutes of the two jurisdictions. Section 2(1) of the UK Act states that a contract of sale of goods is a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the ‘price.’17 While Section 3(1) of the Act states that the capacity to buy and sell is regulated by the general law concerning capacity to contract and to transfer and acquire property.18 Moreover, Section 4(1) indicates that a contract of sale could be in writing, by word of mouth, partly in writing and partly by word of mouth, or even be implied from the conduct.19 Similar provisions pertaining to the formation are embodied in Sections 2, 3 and 4 of the SL Ordinance.20

Provisions relating to ‘price’ are also identical in Section number and subject matter in the two jurisdictions. Section 8(1) of the UK Act highlights that the price in a contract of sale could be fixed by the contract, could be left to be

10 Frank Diedrich, ‘Maintaining Uniformity in International Uniform Law via Autonomous Interpretation: Software Contracts and the CISG’ (1996) 8 Pace International Law Review <https://digitalcommons.pace.edu/pilr/vol8/iss2/2> accessed 30 March 2021

11 Ulrich Magnus, ‘The Vienna Sales Convention (CISG) between Civil and Common law Best of all Worlds?’ (2010) 3 Journal of Civil Law Studies <https://digitalcommons.law.lsu.edu/jcls/vol3/iss1/6> accessed 4 January 2022.

12 Michael J. Dennis, ‘Modernizing and harmonizing international contract law: the CISG and the UNIDROIT Principles continue to provide the best way forward.’ (2014) 19 Uniform Law Review < https://academic.oup.com/ulr/article/19/1/114/1661968> accessed 9 February 2022

13 Michael J. Dennis, ‘Modernizing and harmonizing international contract law: the CISG and the UNIDROIT Principles continue to provide the best way forward.’ (2014) 19 Uniform Law Review < https://academic.oup.com/ulr/article/19/1/114/1661968> accessed 9 February 2022

14 A. Kritzer, ‘CISG: Table of Contracting States’ (Institute of International Commercial Law, July 12, 2021) <https://iicl.law.pace.edu/cisg/page/cisg table contracting states> accessed 30 March 2022

15 UK Sale of Goods Act 1893.

16 Sale of Goods Ordinance No.11 of 1896, Sri Lanka.

17 UK Sale of Goods Act 1893, s 2(1).

18 ibid, s 3(1).

19 UK Sale of Goods Act 1893, s 4(1).

20 Sale of Goods Ordinance No.11 of 1896, Sri Lanka.

fixed in a manner agreed by the contract or could even be determined by the course of dealing between the parties.21 And as per Section 8(2) where the price is not determined as mentioned in subsection (1) the buyer must pay a reasonable price.22

Sections 17(1) and 18(1) of the UK Act and SL Ordinance respectively govern the transfer of property under a sales contract. Here too, the two statutes have identical subject matters pertaining to the transfer of property. Accordingly, Section 17(1) of the UK Act states that where there is a contract for the sale of Ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.23

On the other hand Section 20(1) of the UK Act states that unless otherwise agreed, the good remain at the risk of the seller until the property in them is transferred to the buyer, but when the property in them is transferred to the buyer goods are at the risk of the buyer whether delivery has been made or not.24 And as per Section 20(2) where delivery has been delayed through the fault of either buyer or seller the goods are at the risk of the party at fault.25 Almost identical provisions are in SL Ordinance under Section 21.

Provisions relating to ‘Title’ of the property are found in Sections 21, 23 and Sections 22, 23 in the UK Act and the SL Ordinance respectively. Accordingly Section 21(1) of the UK Act states that subject to the Act, where goods are sold by a person who is not their owner, and who does not sell them under the person without authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct is precluded from denying the authority of the seller to sell.26 And Section 22(2) further states that nothing in this Act affects the provisions of the Factors Acts or any enactment enabling the apparent owner of goods to dispose of them as if he were their true owner; the validity of any contract of sale under any special common law or statutory power of sale or under the order of a court of competent jurisdiction.27

Section 34(1) in both statutes refers to Rights of the Buyer.28 And 34(1) states that where goods are delivered to the buyer, and he has not previously examined them, he is not deemed to have accepted them until he has had a reasonable opportunity to examine them for the purpose of ascertaining whether they are in conformity with the contract. Rights of the seller include the unpaid rights of the seller.29 And Section 39 of both UK Act30 and SL Ordinance31 embody similar provisions concerning the unpaid rights of the seller.

It is the integral duty of the seller and the buyer to deliver the goods, and to accept and pay for them, in accordance with the terms of the contract of sale. And this is provided for by Section 27 of the statutes in both jurisdictions. It is important to highlight that the SL Ordinance32 is almost identical to the UK Act on Sales of Goods33 in this regard.

In addition, similar provisions remain in both UK and SL statutes pertaining to types of goods, and Conditions and Warranties under a sale of good contract.34

21 UK Sale of Goods Act 1893, s 8(1).

22 ibid, s 8(2).

23 ibid, s 17(1).

24 ibid, s 20(1).

25 UK Sale of Goods Act 1893, s 20(2).

26 UK Sale of Goods Act 1893, s 21(1).

27 ibid, s 22(2).

28 UK Sale of Goods Act 1893; Sale of Goods Ordinance No.11 of 1896, Sri Lanka, s 34(1).

29 UK Sale of Goods Act 1893, s 34.

30 ibid, s 39.

31 Sale of Goods Ordinance No.11 of 1896 Sri Lanka, s 39.

32 Sale of Goods Ordinance No.11 of 1896 Sri Lanka, s 27.

33 UK Sale of Goods Act 1893, s 27.

3.0 United Nations Convention on Contracts for the International Sale of Goods (CISG)

The purpose of the Convention could be gleaned from the preamble to the Convention. Accordingly, uniform rules on contracts for the international sale of goods lifts legal barriers in international trade and promotes the growth of international trade.35 Article 1 lays out the application of the Convention. Accordingly, the Convention applies to contracts of sale of goods between parties whose places of business are in different States: either when the States are Contracting States; or when the rules of private international law require its application.36

Article 1(3) emphasizes that neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration when determining the application of the Convention.37 This depicts how the Convention aims to mitigate any prejudice. It is noteworthy that as per Article 4, the Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract.38

Article 6 allows the parties to either exclude the application of the Convention or, subject to Article 12, derogate from or vary the effect of any of its provisions.39 And Article 7 emphasizes that the international character, the need to promote uniformity and the observance of good faith in international trade should be considered in interpretation.40 Moreover as per sub section 2 questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.41 Article 11 states that a contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. And it could be proved by any means, including witnesses.42

Article 95 of the CISG provides that any state could declare at the time of the deposit of its instrument of ratification, acceptance, approval or accession that it will not be bound by subparagraph (1) (b) of article 1 of this Convention.43

When comparing theCISGwith theUKand SLstatuteson salesof goods,theCISGstandsoutfor its‘international’ character. And unlike these domestic statutes which govern sales of goods transactions within national jurisdictions, the CISG governs and facilitates efficient cross boundary sale of goods transactions.

In fact, the United Kingdom has not ratified the Convention believing that the Convention will lead to a diminished role for English law within the international trade.44 It can be argued that the techniques of interpretation must be

34 UK Sale of Goods Act 1893; Sale of Goods Ordinance No.11 of 1896, Sri Lanka.

35 United Nations Convention on Contracts for the International Sale of Goods (CISG) 1980, Preamble.

36 United Nations Convention on Contracts for the International Sale of Goods (CISG) 1980, art 1.

37 ibid, art 1(3).

38 ibid, art 4.

39

United Nations Convention on Contracts for the International Sale of Goods (CISG) 1980, art 6.

40 ibid, art 7.

41 ibid, art 7(2).

42

United Nations Convention on Contracts for the International Sale of Goods (CISG) 1980, art 11.

43 ibid, art 95.

44 Wenqiong Liang, ‘Does the CISG put too much emphasis on promoting performance of the contract? A comparison with the English law’ (2015) 1 international journal of management and applied science < http://www.iraj.in/journal/journal_file/journal_pdf/14 119 142614224631 36.pdf> accessed 19 February 2022

chosen to achieve "the international character of the Convention".45 The drafters of the CISG deemed that unification of international sale law would promote international trade.46

4.0 Feasibility and Desirability of the CISG

The feasibility and the desirability of the CISG have been analyzed considering the following advantages of the CISG.

a) Promotes Uniformity

The different standards of international trade in national jurisdictions, necessitates uniform laws for commercial contracts.47 The CISG provides harmonized and uniform sales law reducing doubt and expenditure. Influential nations such as the United States, China, Germany, Russia, and Japan are all member states to the Vienna Convention. All members of the G12 except the United Kingdom are members of the CISG.48 And eleven out of fifty five countries in Africa are contracting states to the CISG. There are mechanisms to uphold uniformity even though the CISG is criticized for its vagueness and general clauses.49 Article 7 requires that the CISG is interpreted considering its international character which encourages uniformity.50

b) Accessibility

The text of the CISG is available in six authoritative languages and has been translated into many others. English being the lingua franca of international trade, court decisions, arbitral awards and scholarly writings are written or translated into English. These are easily accessible in books, journals and websites. Thus, it is reasonable to expect judges and arbitrators to have access to necessary information on the CISG.51 This would facilitate predictability and save cost and time. Although foreign decisions lack binding effect on national courts, their persuasive authority is recognized today. Furthermore, the CISG Advisory Council issues opinions and provides guidelines for uniform interpretation of the Convention in complex matters. Courts applying the CISG could benefit from international scholarly writings on the Convention.52 UNCITRAL has established a database in Vienna for collecting judgments

45 Bruno Zeller, ‘The UN Convention on Contracts for the International Sale of Goods (CISG) A Leap Forward towards Unified International Sales Law’ (2000) 12 Pace International Law Review < http://digitalcommons.pace.edu/pilr/vol12/iss1/4> accessed 08 February 2022.

46 Gilles Cuniberti, ‘Is the CISG Benefiting Anybody?’ (2007) 39 Vanderbilt Journal of Transnational Law <https://www.researchgate.net/publication/228282395_Is_the_CISG_Benefiting_Anybody> accessed 14 February 2022

47 Rita Mawufemor Tsorme, ‘Ratification of the CISG: A Way Forward to Ensure Success of the African Continental Free Trade Area (AfCFTA)’ (2021) 107 Journal of Law, Policy and Globalization < www.iiste.org> accessed 25 February 2022

48 ibid.

49 Ingeborg Schwenzer and Pascal Hachem, ‘The CISG Successes and Pitfalls’ (2009) 57 The American Journal of Comparative Law < https://www.jstor.org/stable/25652649> accessed 23 February 2022.

50 Bruno Zeller, ‘The UN Convention on Contracts for the International Sale of Goods (CISG) A Leap Forward towards Unified International Sales Law’ (2000) 12 Pace International Law Review < http://digitalcommons.pace.edu/pilr/vol12/iss1/4> accessed 08 February 2022

51 Ingeborg Schwenzer and Pascal Hachem, ‘The CISG Successes and Pitfalls’ (2009) 57 The American Journal of Comparative Law < https://www.jstor.org/stable/25652649> accessed 23 February 2022

52 Alexander S. Komarov, ‘Internationality, Uniformity and Observance of good faith as criteria in interpretation of CISG: Some remarks on article 7(1)’ (2005) 25 Journal of Law and Commerce<https://uncitral.un.org/sites/uncitral.un.org/files/media documents/uncitral/en/komarov.pdf> accessed 6 February 2022

and scholarly writings on model laws and conventions of the UNCITRAL.53 International case law databases provide access to resources on the CISG in the languages of the member States.54

c) Reduction of Cost

The CISG reduces transaction costs, resulting in lower prices for imported and exported goods.55 This favors Small and medium sized enterprises.56 Cost reduction in performance and litigation, in plural legal systems increases efficiency. In fact, the CISG shifts costs to the least cost avoider.57 The lower information costs, accessibility costs, contract management costs and certainty in the choice of law risks promote social welfare.58

The CISG is ideal for cross border transactions. It also features a balanced system of contractual remedies that facilitate interaction between buyer and seller in remedying any deficiency in performance. These mechanisms are usually not available under national law.59

d) Predictable

The CISG allows the application of predictable sales law. The uniformity in the CISG minimizes uncertainty and costs in cross border transactions.60 Article 1 of CISG eliminates legal uncertainty about the applicable law in a dispute. Reduction of legal uncertainty relating to the choice of law, and lowered negotiation and drafting costs can be classified as ex ante transaction cost savings.61 The provisions of CISG guarantee legal certainty and contribute to good faith in international sales law.

e) Neutrality and Clarity

The CISG, being a uniform text, is by its own nature neutral and therefore no party may claim an advantage by applying it. Formal treaty adoption opens the door to the application of the CISG either as a default regime or by parties’ choice. The Digest of Case Law on CISG provides a comprehensive overview of the main trends in the interpretation of the provisions of the Convention. And uniformity in sales law provides specific answers to issues by increasing the legal predictability of international transactions, especially with respect to legal systems of countries that are newcomers in global markets.62

53 Frank Diedrich,‘MaintainingUniformity in InternationalUniform Law via Autonomous Interpretation: Software Contractsand theCISG’(1996) 8 Pace InternationalLaw Review <https://digitalcommons.pace.edu/pilr/vol8/iss2/2> accessed 30 March 2022.

54 Martin F.Koehler and Guo Yujun,‘TheAcceptance of theUnified SalesLaw (CISG)in DifferentLegalSystems’ (2008) 20 Pace International Law Review <https://digitalcommons.pace.edu/pilr/vol20/iss1/3/ > accessed 4 January 2022.

55 Luca G. Castellani, ‘The adoption of the CISG in Portugal: benefits and perspectives’ (2013) 2 Red Journal <https://cije.up.pt/en/red/previous editions/2013 nordm 2/the adoption of the cisg in portugal benefits and perspectives/#:~:text=Positive%20consequences%20of%20the%20adoption%20of%20the%20CISG,of%20that%20 text.%20Table%20of%20contents%201.%20Introduction.> accessed 23 February 2022

56 ibid.

57

Lisa Spagnolo, CISG Exclusion and Legal Efficiency (Kluwer Law International 2014).

58 ibid.

59

Luca G. Castellani, ‘The adoption of the CISG in Portugal: benefits and perspectives’ (2013) 2 Red Journal <https://cije.up.pt/en/red/previous editions/2013 nordm 2/the adoption of the cisg in portugal benefits and perspectives/#:~:text=Positive%20consequences%20of%20the%20adoption%20of%20the%20CISG,of%20that%20 text.%20Table%20of%20contents%201.%20Introduction.> accessed 23 February 2022

60 Lisa Spagnolo, CISG Exclusion and Legal Efficiency (Kluwer Law International 2014).

61 Lisa Spagnolo, CISG Exclusion and Legal Efficiency (Kluwer Law International 2014).

62 Luca G. Castellani, ‘The adoption of the CISG in Portugal: benefits and perspectives’ (2013) 2 Red Journal <https://cije.up.pt/en/red/previous editions/2013 nordm 2/the adoption of the cisg in portugal benefits and

f) Aids Arbitration

Some practitioners opt to use CISG when a contract contains mandatory arbitration.63 These practitioners deem that CISG is easier for international arbitrators to understand and apply. Arbitration proceedings could promote uniform legal interpretation and application of the CISG.64

g) Allows Opt Out

CISG also allows parties to opt out of certain provisions in CISG. For instance, when one is uncomfortable with waiving the statute of frauds, then one could opt out of Article 11.65 Moreover if one refuses to contend with evidence of course of dealing, then one could opt out of Article 9. Parties may opt out of the Convention or vary any of its provisions, thus providing maximum flexibility to fit any business need.66 In 2008, the US can be categorized as at one end of the spectrum with ‘automatic’ opt outs from the CISG in practice, as opposed to China which is a ‘pro CISG’ jurisdiction.67 A survey indicated that 16% of US lawyers exclude the CISG ‘principally’ due to unfamiliarity.68 Yet, the element of vagueness in the CISG also facilitates flexibility in application.69

5.0 Critique of the CISG

Some literature on CISG claims that strict uniform application is not achievable. And according to Honnold as per the realists, even uniform laws, would not yield a uniform result.70

The degree of familiarity of CISG in practice is very low.71 And parties often prefer to retain its own domestic law in a contract where possible.72 In fact, certain parties are not yet convinced of the advantages of the CISG, compared to domestic sales laws. And many developing and transitioning nations refuse to recognize CISG in fear of giving western businesses undue advantages.73

Another criticism of the CISG is the vagueness of some of the provisions in the Convention such as Article 7 on statutory interpretation and good faith.74 On the other hand the information costs of familiarizing with the CISG

perspectives/#:~:text=Positive%20consequences%20of%20the%20adoption%20of%20the%20CISG,of%20that%20 text.%20Table%20of%20contents%201.%20Introduction.> accessed 23 February 2022

63 George Philippopoulous, ‘Awareness of the CISG among American Attorneys’ (2008) 40 Uniform Commercial Code Law Journal.

64 Nils Schmidt Ahrendts, ‘CISG and Arbitration’ (2011) 3 Belgrade Law Review <https://anali.rs/xml/201 /2011c/2011 3e/Annals_2011_211 223.pdf> accessed 12 January 2022.

65 Sam Wieczorek, ‘Opting out of CISG: Always the best approach?’ <http://www.chengcohen.com/wp content/uploads/Opting out of CISG1.pdf> accessed 24 February 2022

66 Luca G. Castellani, ‘The adoption of the CISG in Portugal: benefits and perspectives’ (2013) 2 Red Journal <https://cije.up.pt/en/red/previous editions/2013 nordm 2/the adoption of the cisg in portugal benefits and perspectives/#:~:text=Positive%20consequences%20of%20the%20adoption%20of%20the%20CISG,of%20that%20 text.%20Table%20of%20contents%201.%20Introduction.> accessed 23 February 2022

67 Lisa Spagnolo, CISG Exclusion and Legal Efficiency (Kluwer Law International 2014).

68 ibid.

69 Ulrich Magnus, ‘The Vienna Sales Convention (CISG) between Civil and Common law Best of all Worlds?’ (2010) 3 Journal of Civil Law Studies https://digitalcommons.law.lsu.edu/jcls/vol3/iss1/6 accessed 4 January 2022.

70 Honnold “The Sales Convention in Action Uniform International Words: Uniform Application?” 1988 Journal of Law and Commerce.

71 Ingeborg Schwenzer and Pascal Hachem, ‘The CISG Successes and Pitfalls’ (2009) 57 The American Journal of Comparative Law < https://www.jstor.org/stable/25652649> accessed 23 February 2022.

72 ibid.

73 ibid.

74 Nathalie Hofmann, ‘Interpretation Rules and Good Faith as Obstacles to the UK's Ratification of the CISG and to the Harmonization of Contract Law in Europe’ (2010) 22 Pace International Law review < https://digitalcommons.pace.edu/pilr/vol22/iss1/4> accessed 21 February 2022

differ on the jurisdiction of the lawyer. Education, litigation exposure and influence on domestic law are also determining factors of information cost. Exposure to the CISG via litigation or arbitration work compels lawyers to invest in CISG information costs.75 Moreover, bargaining power also reduce exclusions.76 A stronger ‘pro CISG’ party can insist on the CISG. And the cost related to time and effort in familiarizing with the CISG leads to excluding the application of the CISG by many nations.77

6.0 Should the UK ratify the CISG?

Some opine that the delay of the legislative process prevents the UK from becoming a contracting state of the CISG.78 The non ratification of the CISG by the UK is of great significance to the EU because the contracting states of the CISG within the EU include some of the major trading partners of the UK such as Germany, France, the Netherlands, Belgium, Spain, and Italy 79

Due to the lack of English case law regarding certain provisions, English lawyers are cautious about promoting the Convention without knowing how English courts would apply and interpret the Convention.80 In fact the German jurists consider that the CISG is simpler and more comprehensible than the new German Civil Code while the US deem that the CISG is "transparent."81

There is growing case law on the CISG by courts of foreign countries, including common law nations such as Australia, New Zealand and the United States.82 All of the member states of EU and the NAFTA have ratified the CISG. And China is one of its oldest members.83 If UK ratifies the CISG, jurisprudence by English courts could increase the acceptance of the CISG within the international business community.84 Among several reasons why the UK is so reluctant to adopt the Convention, an often raised concern is that the CISG is less suitable to commodity sales.85

The fear also lies that the judiciary of the United Kingdom would interpret the provisions of the CISG literally, thus failing to consider the history of the Convention at the Vienna Conference, and its objective to achieve uniformity.86

75 Lisa Spagnolo, CISG Exclusion and Legal Efficiency (Kluwer Law International 2014). 76 ibid.

77 Jacob S. Ziegel, ‘The Future of the International Sales Convention from a Common Law Perspective’ (2000) 6 New Zealand Business Law Quarterly.

78 Sally Moss,‘Why theUKhasnotyetratified theCISG’(2005) 25 JournalofLaw and Commerce.

79 Nathalie Hofmann, ‘Interpretation Rules and Good Faith as Obstacles to the UK's Ratification of the CISG and to the Harmonization of Contract Law in Europe’ (2010) 22 Pace International Law review <https://digitalcommons.pace.edu/pilr/vol22/iss1/4> accessed 21 February 2022 80 ibid.

81 Martin F.Koehler and Guo Yujun,‘TheAcceptance of theUnified SalesLaw (CISG)in DifferentLegalSystems’ (2008) 20 Pace International Law Review <https://digitalcommons.pace.edu/pilr/vol20/iss1/3/ > accessed 4 January 2022.

82 Nathalie Hofmann, ‘Interpretation Rules and Good Faith as Obstacles to the UK's Ratification of the CISG and to the Harmonization of Contract Law in Europe’ (2010) 22 Pace International Law review < https://digitalcommons.pace.edu/pilr/vol22/iss1/4> accessed 21 February 2022

83 Bruno Zeller, ‘The UN Convention on Contracts for the International Sale of Goods (CISG) A Leap Forward towards Unified International Sales Law’ (2000) 12 Pace International Law Review < http://digitalcommons.pace.edu/pilr/vol12/iss1/4> accessed 08 February 2022.

84 Nathalie Hofmann, ‘Interpretation Rules and Good Faith as Obstacles to the UK's Ratification of the CISG and to the Harmonization of Contract Law in Europe’ (2010) 22 Pace International Law review < https://digitalcommons.pace.edu/pilr/vol22/iss1/4> accessed 21 February 2022

85 MichaelBridge, ‘ALaw for InternationalSales’(2007)37Hong Kong Law Journal.

86 FrancisA. Mann,‘TheInterpretation of Uniform Statute’ (1946)62 Law Quarterly Review.

Yet, if the UK ratifies the CISG, jurisprudence by English courts would encourage common law states such as Australia, New Zealand and the United States to be more willing to apply the CISG under emerging precedents from the UK.87

7.0 Should Sri Lanka ratify the CISG?

The ratification of the CISG globally contributes to the success of the CISG. Yet, reservation by States during the adoption of the Convention limits the effect of the CISG on the unification of Sales law.88 The inclusion of CISG could create a strong negotiating position for the client if the opponent counsel is unaware of the CISG.89 It has been observed that the substantive content of the CISG is better suited to international sales than national sales laws that are often focused on domestic trade.90

Consideration is not required under the CISG.91 While Oral contracts suffice under the CISG, contracts are not required to be evidenced in writing.92 The CISG also removes the parole evidence rule.93

The drafters considered that a requirement of declaration of avoidance by notice would provide both parties with clarity on their positions. This is important in international trade between parties from different legal backgrounds, involving long distances.94 Notice of avoidance would also allow the seller to re sell or make other arrangements immediately, thus enabling the seller to act to prevent wastage, loss or expense to the goods when the buyer refuses to accept them on delivery.95 Notice of non conformity allows parties to determine the best way to resolve the deficiency in a timely and efficient manner. It enables the seller to offer a cure to the problem pursuant to Article 48 CISG, rather than leading to unnecessary losses.96

8.0 Selected Case Law on the CISG

In Jin Gao Min Si Zhong Zi,97 the Appeal Court held that, since the buyer and the seller were respectively located in Canada and China, which were both Contracting States to the CISG, and since the contract refrained from excluding the application of the CISG, the dispute should be governed by the CISG.

In the case Roser Technologies, Inc. v. Carl Schreiber GmbH,98 the States of both the buyer and the seller were signatories to the CISG. Hence the court held that the Convention governed the agreements. By applying CISG Article 8, the court discovered that the purchase orders of the buyer did not incorporate the standard conditions of the seller.

87 Monica Kilian, ‘CISG and the Problem with Common Law Jurisdictions’ (2001) 10 Journal of Transnational Law and Policy <http://www.law.fsu.edu/journals/transnational/vol102/kilian.pdf.> accessed 26 February 2022.

88 Nathalie Hofmann, ‘Interpretation Rules and Good Faith as Obstacles to the UK's Ratification of the CISG and to the Harmonization of Contract Law in Europe’ (2010) 22 Pace International Law review < https://digitalcommons.pace.edu/pilr/vol22/iss1/4> accessed 21 February 2022

89Sam Wieczorek, ‘Opting out of CISG: Always the best approach?’ <http://www.chengcohen.com/wp content/uploads/Opting out of CISG1.pdf> accessed 24 February 2022

90 Jacob S. Ziegel, ‘The CISG was not designed to offer a superior sales regime to national laws, but as a neutral alternative’ (1993) 66 Journalof ContractLaw.

91

Lisa Spagnolo, CISG Exclusion and Legal Efficiency (Kluwer Law International 2014).

92 ibid.

93

Lisa Spagnolo, CISG Exclusion and Legal Efficiency (Kluwer Law International 2014).

94 ibid.

95 ibid.

96

Lisa Spagnolo, CISG Exclusion and Legal Efficiency (Kluwer Law International 2014).

97 Jin Gao Min Si Zhong Zi [2013] People’sRepublicof China:High People’sCourtof Tianjin Municipality 1742.

98 Roser Technologies, Inc. v. Carl Schreiber GmbH [2013] United States: District Court for the Western District of Pennsylvania 1744.

In Beth Schiffer Fine Photographic Arts, Inc. v. Colex Imaging, Inc., 99 since the buyer had not entered into a contract with the Italian manufacturer, the court dismissed the CISG claims of the buyer against the manufacturer.

In Semi Materials Co. v. MEMC Elec. Materials Inc., the court explained the difference between Articles 74 and 76 CISG.100 Accordingly Article 74 governs compensatory damages and provides the measurement of damages where a breach of contract is found, while Article 76 addresses circumstances where a contract has been avoided.

In another decided case, the plaintiff is a producer and vendor of lamps having place of business in Poland. In 2008, the plaintiff sold lamps to the defendant, whose business was in Austria, who then resold them to a sub purchaser, also with place of business in Austria.101 The court of first instance held that the 2008 and 2014 contracts between the parties were governed by the CISG. And the Court of Appeals confirmed the applicability of the CISG.102

9.0 Conclusion

The CISG adds predictability, stability, efficiency, and neutrality to transactions. Its substantive rules promote efficient behavior.103 Yet, the future of the CISG relies on the business and legal communities applying the Convention.104 It is evident from the above analysis that the CISG improves legal certainty and reduce the litigation or pre litigation costs of the parties.105 The text of the CISG embodies supranational collective terms formed out of compromises between State delegates.106 In fact, the CISG contributes to international discussions, creating an international community of science and scientists.107 Hence, it is important to reiterate that UK and Sri Lanka would undoubtedly benefit from ratifying the Convention, without further delay.

99 Beth Schiffer Fine Photographic Arts, Inc. v. Colex Imaging, Inc. [2012] United States: District Court for the District of New Jersey 1745.

100 Semi Materials Co. v. MEMC Elec. Materials, Inc [2011] United States: District Court for the Eastern District of Missouri, Eastern Division 1746.

101 1 R 192/16m 24 [2017] Austria: Higher Region Court, Vienna 1747.

102 ibid.

103

Lisa Spagnolo, CISG Exclusion and Legal Efficiency (Kluwer Law International 2014).

104 Monica Kilian, ‘CISG and the Problem with Common Law Jurisdictions’ (2001) 10 Journal of Transnational Law and Policy <http://www.law.fsu.edu/journals/transnational/vol102/kilian.pdf.> accessed 26 February 2022

105 Gilles Cuniberti, ‘Is the CISG Benefiting Anybody?’ (2007) 39 Vanderbilt Journal of Transnational Law <https://www.researchgate.net/publication/228282395_Is_the_CISG_Benefiting_Anybody> accessed 14 February 2022.

106

Frank Diedrich, ‘Maintaining Uniformity in International Uniform Law via AutonomousInterpretation: Software Contracts and the CISG’ (1996) 8 Pace International Law Review <https://digitalcommons.pace.edu/pilr/vol8/iss2/2> accessed 30 March 2022

107 Ulrich Magnus, ‘The Vienna Sales Convention (CISG) between Civil and Common law Best of all Worlds?’ (2010) 3 Journal of Civil Law Studies https://digitalcommons.law.lsu.edu/jcls/vol3/iss1/6 accessed 4 January 2022.

SOCIAL MEDIA IS EMPATHETIC

By: Chrishalle Augustin, Freelance Journalist at Daily Mirror

1.0 Introduction

"Social Media" is a term seen as argumentative or controversial due to its functions and purposes being unacceptable globally. Many have misunderstood social networking and social media as by coming to know only about certain wrong / unhealthy moves in it. This is what has made this topic a debatable one concerning whether it is good or bad to be a part of social media.

However, the COVID 19 pandemic has changed this ideology as it made the world realise that the situation would’ve been worse if not for social media, which kept everyone connected during the times of pandemic. Social media platforms contribute far more than what is seen in general. Especially during the pandemic, it helped the world remain connected, largely increasing usage during the pandemic. As almost 90% of people remained home, they turned to social media to maintain their relationships and to access entertainment to pass the times.

Social media platforms and social networking services have been used to communicate, find news, share opinions, learn new skills, watch movies and series, spread information, and to find humour and distraction from the pandemic via memes. According to some studies the most recorded online activities during the pandemic period are online communication and online learning, online business and uploading content based on one’s skills. This is how many began to see social media as a user friendly and useful platform for its effectiveness. With time, it also gathered positive responses worldwide.

2.0 Online Communication and Entertainment

Social Media platforms became the primary source of communication since the outbreak of the pandemic as it became helpful for the public to stay connected with their family, friends and loved ones across the world. When the global lock up occurred, not everyone was fortunate enough to stay with or close to their family and loved ones. As it was a span of isolation many were at a higher risk for being exposed to being emotionally drained out and mental conditions such as depression, anxiety, long term distress which they found hard to cope up with. Yet with time they began to distract their mind from such stressing moments only by being part of the digital space.

“If not for social media I would’ve suffered from loneliness as I was away from my family when the lockdown happened. It was the video calls that I made and memes I shared with my family and friends kept me waking up to another day.”, stated a youngster in her mid 20s. The aforementioned comment can be related to many who were into such situations of despair. Nonverbal communication (facial expressions / gestures) becoming the most common method of communicating at this time, it extremely challenged the public to adapt this method which generated a lot of mistrust, misinterpretation, lack of linguistic understanding, and failure to comprehend. However, the only way for an individual to freely hold a verbal communication in the pandemic was calls / texts that took place via social media.

“Memes” can now be described as a term that is loved and called a stress buster by many and also seen as a comedy feature in pop culture as it targets audiences of all age groups. To say in other words, the meme culture plays a pivotal role in social media as it has its own set of fans who see it as a separate platform of communication which directly deals with and conveys our day to day emotions and the reality in a very catchy manner. Memes can be categorised as funny, emotional, social, reactionary and

nostalgic. It is because of memes, almost the entire world was able to cheer up and accept the reality moving on with hopes for a better future soon.

The global pandemic impacted the theatrical and home/mobile entertainment, as movie theatres and production studios temporarily closed. As millions quarantined, viewers were forced to stay home for their video entertainment. Coinciding with the pandemic, was the emergence of new streaming video services from such prominent studios as Netflix and Amazon. Many who did not have access to watch movies in the theatre or on television had the privilege of watching movies of various languages. It connected audiences from different regions and even created fans across the world.

Studies state that social media messaging and calling and other online activities has been occurring not only on the mainstream social media platforms but also through many other rarely used apps. This shows that the individuals were either bored of using the same apps or wanted to communicate via different platforms which had more fascinating features. It is also discovered that many who weren’t much aware about digital communication were able to learn to use it effectively in this time. The number of subscribers of the digital space has drastically increased during the pandemic as it got everyone across the world to be part of it both directly and indirectly.

3.0 Online Learning and Business

When we say “Online learning” what comes first to our mind is the school lessons or the college lectures that are conducted online. Apparently, this changed at the time of pandemic whereas online learning also included self education on various subjects and skills. YouTube and Instagram happened to be major learning platforms as experts began to upload content based on their skills. It includes templates or videos of several areas such as current affairs, food, health, studies, sports, fitness, beauty, art etc. This turned out to be an easier and more appealing option for learning and coaching. Its chance of having access to receive direct feedback from the participant paved the way to maintain or upgrade the manner of conducting sessions. Also, this method seemed inexpensive and created numerous opportunities for courses and jobs. Even though it was hard for the ones who lacked knowledge and experience of the digital space to take part in it, yet so many of that category were able to get used to the rudimentary steps in it during this time.

It should be said that the pandemic opened the doors wider for online entrepreneurs. As the situation kept everyone indoors, consumption of grocery and other products was held online. This happened to be a chance for the entrepreneurs to promote and sell their goods online.

During the peak of the spread of the disease the public became way conscious about the cleanliness of their environment and the items that they consumed. Keeping this in mind the online business holders kept their business going safe along with the health guidelines being followed correctly, which was more convincing for the consumer to go ahead with the next step.

“I was able to do my cake business online during the pandemic. Of course, I was doubting whether it would work effectively but it took place safely and I received positive feedback from my customers. I am glad that I was able to satisfy my customers even during a tough time like that.”, stated a baker. E learners and entrepreneurs discovered many easier ways to learn and attend with business online as it became the new normal with the pandemic. Seeing this as a new trend, many individuals started being part of either of these two categories.

4.0 Conclusion

The overall idea of this article is to highlight the way we all were connected and occupied only because of social media during / post pandemic. Social media immensely contributed to many other sectors apart from the ones that are discussed above.

In fact, it happened to be social media's responsibility in assuring the individuals were connected to their family through it. Even though there are some who aren't maintaining an own social media account, they too had a chance to be part via someone else's for a call or message. To say in short, in general, social media's contribution during the pandemic had impacted in keeping the public mentally stable, progressing in their career with the help of digital space and reminding the public that it is worth waking up to another as they still have an option to connect to their family via social media.

COVID 19 AND ITS EFFECTS ON UNIVERSITY LIFE: IN THE SRI LANKAN CONTEXT

By: Subodhi Indrachapa Weerasekara

This article examines the impact of Covid 19 on university life, mainly based on the views and opinions of health experts and university lecturers.

1.0 COVID-19’s Impact on University Life

The university is a buzzing cultural club with a diverse range of students from all around the country. It is a place that pushes university students to step into uncharted horizons of their lives. Sad to say COVID 19 shook university life and caused ripples in its normalcy and functioning. Universities in Sri Lanka were closed for academic activities from 13th March 2020 on the instruction of the University Grants Commission. The dormitories and classrooms were destined to remain lifeless for the unforeseeable future. Doom and gloom fell on all. The universities hastily started to move into crisis management. They reacted promptly to the disruption the COVID 19 virus was causing, and emergency solutions were adapted.

With the novel coronavirus becoming a national threat day by day, students were thrown into the harsh waters of new technology. LMS, Moodle, Zoom became the new lecture hall. In Sri Lanka, majority of the students who enter the university are from low and middle income families. As a result, most of them face a lack of adequate infrastructure and technical support. Internet facilities and devices are not readily available for most of the students. Students struggle financially to accommodate the needed equipment. Though access to reliable internet connection has become mandatory, students are still grappling and are entrenched in the hassles of inequalities in digital access.

The increasing risk here is that because of all of this, the ultimate consequence is that the education of the students is in jeopardy. Because online education is not capable of bestowing a fully robust student experience that covers all facets of university life.

2.0 COVID-19’s Impact on University Students in the context of Mental Health and Recommendations to help get through such Difficulties

The mental health of university students at this time, where we are dealing with this deadly virus is one of the main discussion points today. With regard to this, experts in the field shared the following with us.

During the Covid 19 pandemic; isolation, loss of income, fear uncertainty of the future, changes in university life, not being able to continue education is triggering mental health conditions or the ones that were existing.

Mental health includes how we feel, think and act, how we manage stress and adapt. The main components are emotional wellbeing, social wellbeing and psychological wellbeing. During the pandemic, university students have found it difficult to manage these components cause, stress, anxiety and many other Mental health conditions. Stress in university students in particular may cause the following symptoms of emotional and stress related challenges,

• Changes in appetite, energy, desires, and interests

• Difficulty concentrating and making decisions

• Difficulty sleeping / sleeping too much

• Physical reactions, such as headaches, body pains, stomach problems

• Lack of motivation and drive to

However, it’s important to keep in mind, it is natural to feel stress, anxiety, grief, and worry during the COVID 19 pandemic. However, if these do have an impact on our daily functioning and daily tasks, responsibilities and social wellbeing, it is indicative that one might need to focus or work towards managing this stress, connecting with your own support system and reach out for professional help if it is not manageable.

Recommendations

▪

Listen to your body; start building awareness on bodily sensations, feelings and any other psychical symptoms that are indicative that you might need a break.

▪ Having a daily routine or task list that is realistic and broken down into smaller steps if it is an overwhelming amount of work.

▪ Have an after classes/work routine. Make sure there is a clear transition between classes and free time. Studying from home blurs out this separation or transition, therefore, if possible, separate your room from your study area, have a designated area to have classes and leave that place once you start your after class routine.

▪

Practice a mindful morning routine, where you pick a few tasks, such as brushing your teeth and eating, and pay attention to each of the steps taken to brush your teeth or eat. Be present in each of those steps.

▪

▪

Journal / paint / scribble thoughts, emotions, worries and anything that comes into your mind

Practice grounding techniques such as Sensory grounding exercise 5,4,3,2,1

o Describe 5 things you can see in the room.

o Name 4 things you can feel (“my feet on the floor” or “the air in my nose”).

o Name 3 things you hear right now (“traffic outside”).

o Name 2 things you can smell right now (or 2 smells you like).

o Name 1 good thing about yourself.

Use the breath; Put a hand over your heart and a hand over your belly and breathe deeply, following the breath into your belly, focusing on the connections of your hands with your body and the gentle rise and fall of the movement as the breath comes in and out. ▪

Physical grounding; Stand against a wall. Physically push against it. Feel your feet rooting into the ground and your hands against the wall. Then feel your muscles. What does it feel like when they tense, what is the sensation of relaxing your muscles? ▪

Having a worry time, carving out a time for the day to think about your worries and create a worry list

Having daily study goals

Doing a relaxation activity before or after zoom classes

Having a bedtime routine with no devices

Amanda Piyaratne

Psychologist

MPhil in Clinical Psychology (SL) BSc in Psychology (UK)

With COVID 19, one of the important aspects of life of the students that was majorly affected would be the social life aspect. University life has different meanings for different individuals. It could be a place where we connect with others/ friends, it could be a place where master certain skills and for another it could be their escape. Now with the impact of COVID 19, these meaningful interactions of a normal university life have been lost or drastically changed. This has brought out many psychological challenges in students. There’s worry and Anxiety about the future, friendships, academics; there could be worry towards the wellbeing of the loved ones, hopelessness with the goals and the targets been challenged. when we are asked to soldier on, our lives could become overwhelmed and worry and anxiety might become something we will have to live with every day and if this dysregulates it could bring out other psychological challenges where the root would be worry and anxiety.

Uttara Gunasunghe Ilangakoon Master of Philosophy in Clinical Psychology (UOC) Clinical Psychologist

The impact of Covid 19 will vary depending on the way we face it. Change is inevitable and so is the unprecedented pandemic. However, we must train our minds to be resilient and adapt accordingly. Life is such that we will encounter ups and downs. In such times we must not panic. We must consciously feel the moment, breathe deep and become more aware about the circumstance. This will enable the pranic energy movement consistent and will attract positive thoughts. If the students think negatively about the situation, then it is likely that the mind will get programmed to a negative frequency with a lot of negative emotions. If this happens it will have a drastic impact on mental health. Therefore, it is important to increase the positive vibe by engaging in activities that enhance the flow of happy hormones such as serotonin. Activities such as yoga, dancing, drawing, exercising, spending time in nature will be very beneficial. Also, it is important to be mindful about diet, sleep and hygiene as well. Taking good care of self and inculcating self love can help you immensely. Positive affirmations such as "Everything shall pass by", "I'm a victory" will help the mind to attract positivity. The lockdown period was not an easy time. There is no doubt that it was extremely stressful. EFT technique is encouraged for releasing stress during such tough times.

The mind is the forerunner of everything. Therefore, I strongly believe that we could fight against covid 19 and work towards a positive and strong mindset.

Dr. Kalharie N. Pitigala Child, Adolescent & Counseling Psychologist (Visiting Consultant) Asiri Hospital Holdings PLC

3.0 The Viewpoint of University Lecturers and Students

The people who can give us the best first hand experience are the ones who are directly in this predicament.

Covid 19 pandemic has stunned the world once again as influenza pandemic did a century ago. This time it has come with a greater magnitude when it comes to the spread of the disease as almost all the countries have been affected speedily. There are many reasons behind it. Namely, overcrowding, enthusiasm in travel, non compliance with preventive health advice etc. At present it has been going on for more than two years. The world at large is finding it a challenge to contain the spread of the disease despite all the restrictions, health guidelines and vaccines.

Therefore, the whole world lives in a new norm where there are new strategies adopted to live with the covid 19 infection. Covid 19 pandemic has had its influence in every community in society disabling them from living their usual lifestyle. One of the very susceptible had been the university student population in our country.

Exuberant university students are the cream of society who seek knowledge and wisdom. The pandemic has hampered them in many ways during their undergraduate learning. They have not been able to move with the teachers and peers and other necessary associates, as freely as they used to do in the past. Communication has been restricted to a great degree as freedom of movement is restrained. Freedom of expression is a very important part of university learning, but due to the pandemic situation it is hindered because of obvious reasons. Having the face covered with a face mask most of the time leaves them with unspoken feelings by facial expression. Social distancing has further made them distant. They have not been able to enjoy their youth as much as they wanted. All in all, the whole university student population has been living in a relatively depressive environment for the last two years and it has created many negative psychological and physical issues in them.

Transition from onsite lectures to online lectures is a new experience for the university students as well as the teachers in our country. In my opinion and experience it may not be the ideal setting for university teaching and learning. There is a huge communication gap when delivering online lectures. There is greater room for the students to have wavered attention without the teachers’ knowledge. It is obvious that the lecturer is not able to gain response from the students as much as during physical lecturing. In addition, the students will have lesser opportunity to clarify their doubts straightaway by asking questions then and there. Arranging practical classes through the online teaching platform is not ideal for learning. Just as the students are finding it difficult to grab the contents of a lecture, the lecturers also face a challenge to deliver, and to be affirmed of whether the students received the contents of the teaching schedule through online lectures. Furthermore, the technical difficulties students face in the Sri Lankan context also is a significant drawback. Many students forced to continue on line learning at home had many difficulties in joining the live teaching schedules and submitting the tutorials on time, due to unavailability of proper internet connections or devices.

Even though this is the case, online teaching programs have a few positive aspects as well. Firstly, it is lucky that we are experiencing this pandemic during the modern era as we could continue teaching activities in some form through internet though the facilities are not equally distributed in a third world country like Sri Lanka. Just imagine if we did not have this communication method by now the whole teaching process would have come to a standstill as it might have happened a century ago during the influenza pandemic. The next most commendable point is the fact that university departments relying on services from visiting lecturers are able to do so easier than earlier and the visiting lecturers too find it more comfortable. Another positive fact is that the students can engage in self learning activities as a good many learning materials are available online with proper guidance from the lecturers. However, overall, in the students

and teachers’ perspective, changing from onsite lectures to online lectures has had a challenging negative impact on the academic environment of the universities.

When it comes to the student performances during new norm, it is not as good as pre pandemic era due to obvious reasons. The students’ engagement in the teaching activities is very low. Moreover, monitoring their work is a difficult task for the teachers. The practical sessions have not been up to the standards as we need to adhere to social distancing, preventive measures and bio bubble. We have to deviate from some of the usual assessment methods to accommodate the current situation hence the students have found it difficult to adjust to the changes yet. Due to these reasons the overall performances of the university students have come down significantly during their assessments.

If this pandemic continues for a few more years according to the WHO predictions, the teaching methods, learning methods and the assessments will remain a challenge to the university community. However, living through the pandemic will open up new strategies in dealing with these key areas of university education and only time will reveal the outcome.

Dr. Prasanna Weerawansa

MBBS,

MD (Internal Medicine)

Senior lecturer and consultant physician Department of Medicine Faculty of Medicine and Allied sciences University of Rajarata

The Covid 19 pandemic has a huge impact upon the university student in terms of physical and mental wellbeing. In 2020, with the spread of the covid 19 in Sri Lanka, universities closed down and initiated online teaching and learning. At the very beginning it was not easy for students to get used to online education because all the students did not have internet facilities and computers. Later with the available resources students got themselves adapted to online education and they started spending more and more time in virtual classrooms. After spending more and more time in virtual classrooms students lost their interest at one point. Nowadays the number of students attending lectures is very low relative to earlier days.

Also, the students, due to the Covid 19 pandemic, lost the chance to spend time at the university. As students lost spending time with friends, it made the students feel pressurized. The students had no means to reduce their stress levels. Even when it comes to evaluations the performance of the students was not promising.

But at the same time a few students blended with online education well and balanced the day to day life. On a positive note, students’ ability to work with technology improved and they had more time to spend with their families.

The transition from onsite lectures to fully online lectures was a bit difficult at first as using different teaching aids was a challenge. Earlier in physical lectures the lecturers followed the student centered teaching methods. But when it comes to using online platforms for teaching the lecturers had to figure out new teaching modes and even when it comes to evaluation, were required to find out methods which are very efficient.

At the initial point gathering all the students to virtual classrooms was a challenge as students were in a transition mode with the pandemic. Even evaluations had to be conducted via online, which was the most difficult part of online education.

Students were exposed to a new level of education via online teaching and learning. Relative to physical lectures, virtual classrooms created the need for students to search for new knowledge as it became mandatory to learn new avenues. But with time motivation levels got decreased, and students felt a bit isolated. Therefore, the effectiveness of online teaching and learning came to a diminishing point.

At the starting point students were highly opposed to the thought of online education. But with time they realized that wasting years of life waiting for physical teaching is not a good decision. So, students changed their mind sets with time. But with the passage of time, students are of the view that it’s not beneficial to them to lose all their time to online classrooms. They do miss physical classrooms and the freedom they used to have.

Pandemic was very difficult at the beginning. At some point as university lecturers, we had to start working physically at the university which was a bit difficult with the condition of the country. Mindset was highly affected and searching for new online methods to provide teaching in an efficient manner was a challenge.

Ms. H.M.N.K. Mudalige Lecturer Department of Business Finance Faculty of Management University of Peradeniya

4.0 Student Opinions

Covid 19 has brought about a tremendous shift in my life. Due to having lectures online, it interfered with my concentration, and I came to realize how much the aspects of physical classes I took for granted. It mostly affected my mental health as I was not used to being at home for lengthy periods of time and being restricted by simple pleasures of life like going to university with friends. However, as time went on, I learnt to appreciate the positives of being at home, such as appreciating the time you spend with your family and the ease of going from one lecture to the other lecture. Instead of harping on the negatives, it’s much better to learn how to cope and live in this time period as it’s safe to say that corona is here to stay for a while.

Since COVID 19, we were taught via zoom. Though lectures were conducted as usual, our clinical teachings were all postponed. Online classes have both pros and cons, I would say. The good thing about them was that we were somewhat less stressed and relaxed during classes. As the lectures were recorded, we could listen to them again and again for clarification. Even a student with anxiety or social phobia could ask questions directly from the lectures via the chat option. The bad things are mainly that no one was looking at us so we could do extra work or even not listen to lectures. As attendance was not marked, we were not much interested in some lectures, and recorded discussions were not as interesting as live classes. As a result, some students got low marks after that, mainly because at university we have extra classes from brighter students closer to exams, which we couldn't have due to this pandemic.

We have our clinical sessions at hospitals, and as the COVID number was rising, our clinicals were somewhat compromised. I think that is a disadvantage for us because less clinical exposure can affect patients' health in an adverse way and also make doctors less competent. So, to overcome that, we had to work very hard during the restricted clinical sessions.

Also, almost all the university entertainment activities were stopped. Most of the functions were postponed, including convocations. Even the sports premises were not open to students. No trips were allowed. As a result of COVID 19, our university life was severely hampered.

In terms of how COVID 19 affected me it was mostly the availability of materials, because we were not able to access any library facilities. We could not even take photocopies and it was really troublesome to find such books. On how it affected me socially I couldn’t gather with my friends and that caused us to miss the best time of our university life. In terms of personal impact, it was rather a good time to think about many things because we didn’t have time to think about stuff when we were busy with our onsite schedules, like what I wish to in the future. There was more time and space to think about myself. Overall, it was a really challenging time period.

Two months into starting university, the pandemic hit us. Our batch was the first to experience a pandemic in their first year, while the seniors had already experienced some sort of normal university life. At first, it was very hard to adjust because we were used to listening to someone teach us, being in a physical class and being with our friends. Looking at the computer screen was really tiresome, and the eyes of some of us got weak. Because law is a philosophical subject, we need to listen to the lecturer to understand it, but with the internet failures, it was difficult to catch up with them at times. The hype, the euphoric feeling we had, had vanished. Our productivity was reduced to a large extent. I missed a huge part of my university life.

5.0 How University Students should view the COVID-19 Pandemic as a Template for How They will face the Challenges in the Work Field

If the past couple of years have taught us anything it is that a confluence of factors poses an unprecedented threat to the current and future of everyone. This is no different when it comes to students who are currently learning and students who are transitioning into the workplace. The impact of the pandemic has not only brought physical threat but has also caused inconceivable strains on the social & emotional health of students directly and indirectly, leaving devastating consequences for overall health. In my opinion there is no one size fits all approach to how university students should view the pandemic as a template for how they would face challenges or overcome those challenges in the workplace. It is all about understanding and accepting that we live in a volatile, uncertain, complex and ambiguous world that is ever so demanding and subject to change and then building our capacity to respond to those unique challenges in a resilient manner. Having or cultivating a growth mindset that is open to learning and proactively responding to perceived challenges are vital.

Why? Because each individual is unique and has their own individual differences when it comes to knowledge, skills, abilities, and other personality characteristics that may contribute to being reactive or proactive in how they respond to those challenges. Furthermore, it is very important that we highlight the role of nature and nurture. Each individual is different biologically and also when taking into account the family and socio cultural upbringing and context (i.e., beliefs and attitudes), we should not underestimate the role these factors play when students perceive and react or cope with life circumstances.

This helps us understand the interdependent and interrelated nature where a student's physical (biological), mental & social aspects of health are dependent on each other. This view is consistent with the definition of “health” as set out by the World Health Organization that considers health to be composed of; social, physical and emotional health. Point being an effect on one area can have direct and indirect influences on the others. So, for the purpose of the question, it is important to view a student from a bio psycho social lens

The ensuing issues of Mental Health concerns preceded by the pandemic is obvious. Apart from the direct effect the virus itself has on physical health, students at large have been subject to considerable degrees of fear, worry, stress & anxiety. The physical distancing, which is a priority at this point, has further proliferated concerns for Mental Health given the psycho-social consequences of self-isolation and loneliness. These concerns are magnified for pre-determined “At risk students”, who already experience mental ill health. Notwithstanding, the students who have other pre existing health concerns are now considered to be, “At risk” included.

From a psychological perspective fear, worry and anxiety are normal reactions to this abnormal situation. This is typically what one would call the Fight Flight Freeze response of the brain, a built in function to protect one from perceived or real harm to ensure survival. From a public Mental Health perspective, it is a major concern as elevated levels of stress and anxiety can directly affect health negatively, whilst further increasing Mental Health concerns and risks associated with risky behaviors (i.e. Use of alcohol & drugs, self harm or attempts at taking one’s own life).

In terms of direct psychological implications on physical health, it is important to note how stress and anxiety affects one’s health. Stress, although commonly used in an ad hoc manner, is a phenomenon & process. It is a physiological response to a perceived or real threat. The process highlights one’s appraisal of danger (In this case the virus) perceived to be harmful to health. Stress and anxiety in this sense are the outcomes. Note that the stress response or the way we perceive the threat or the potentially harmful effects of the virus is highly individual and so the level of one’s stress will depend largely on factors such as personality and other socio economic factors that determines one’s fate in this context (fears associated with income or providing for one's family in the future).

Regardless of one’s situation the biological response which occurs within our bodies remains the same. For instance, imagine one walking through a forest only to encounter a bear. There are three ways to react to this situation: fight, flee or freeze. Biologically the brain will release hormones such as Adrenaline and Cortisol to prepare an individual to boost energy, curb the

digestive system to conserve energy and to fight back or flee from the situation. In the context of the pandemic, this stress response remains the same albeit being secluded to isolation and fear surrounding uncertainty which could further exacerbate levels of stress.

Understanding the biology behind the stress response is of paramount significance to our health.

For instance, the release of hormones such as adrenaline & Cortisol directly suppresses the digestive and Immune system. Although this response will be helpful in the context of controllable events like running away from a potential threat or working towards a deadline, it is not helpful in coping with an externally uncontrollable situation such as a pandemic. In the work context, there will be similar situations where a student will not have control over solving a problem but will need to adjust to the problem or situation emotionally. This means changing one’s mind and behaviors and adjusting to the situation emotionally.

The suppression of our immune system can also make one more vulnerable to disease, whilst suppression of the digestive system can have an effect on one’s appetite. Appetite, which determines food intake will have direct consequences on immunity. Furthermore, the effects of adrenaline, which is meant to sustain high levels of energy, could affect sleep. If left unmanaged, lack of sleep could have further consequences on mood and productivity. This is a cycle that can give rise to many other problems such as low mood, lack of focus or irritability, which could further affect one’s relationships at home or with other peers or colleagues from work.

Whilst recognizing these aspects in an individual and familial setting, it is important to acknowledge the devastating consequences that the aftereffects could have on a society as a whole. For instance, sustained fear and worry due to uncertainty can lead to distress which can in turn affect health. This in turn could have an impact on levels of productivity and engagement, which affects one's work. The cumulative effect of these patterns is devastating for organizations and the economy; as employee engagement, motivation and productivity continues to drain.

Sri Lanka as a nation has been through trying times such as the civil war, the tsunami and the easter attacks of 2019 to name but a few. We are a resilient nation (i.e. ability to bounce back). However, it is important to note that Mental Health concerns remain stigmatized, and the conversation is most often one of taboo. Consequences? Rise in suicide and self harm rates, rising levels of substance abuse and misuse, self sabotaging behaviors, which directly and indirectly leads to loss of productivity and engagement and somatization of mental health concerns. One can only predict the consequences that the future holds; as anxiety, stress, financial strife, grief and general uncertainty continue to increase in the short and long term.

Way forward?

As our students seek to adjust to the new normal, the challenge ahead seems insurmountable. It will be one of inherent strength and collective resilience. However, much can be done to minimize the emotional strain that looms large on our communities and addressing the inequities associated with accessing Mental Health related support can be of paramount significance.

Last but not least, it's important to prepare ourselves for a Marathon and not a sprint. The next few years will indeed be straining, however effectively coping and adapting to the challenges will be beneficial in the short and long term. That said, it is important to be aware of the main ways of coping, problem focused vs emotion focused. Whilst the problem focused strategies focus on directly addressing/minimizing the effects of the stressors, emotion focused coping helps us adjust to and manage situations. In the current context, it is important to note that the direct effects of the virus can be managed by adopting problem focused behaviors such as staying in, washing hands, maintaining good hygiene, eating balanced and healthy meals, maintaining structure and routine. These are problem focused and controllable behaviors. In terms of managing the direct and indirect consequences that come with adapting to the new normal it is important to adopt positive emotion focused behaviors as opposed to negative emotion focused behaviors. Negative emotion focused coping includes worrying, rumination, substance use or abuse. These coping behaviors can add to distress. Whereas positive emotion focused coping strategies can allow one to mentally prepare oneself to make better decisions in solving problems at home and whilst working virtually. These include engaging in self soothing activities such as relaxation, meditation or self care, maintaining a journal, expressive writing and at last but not least staying connected to friends and family whilst also reaching out for emotional support or obtaining Professional Mental Health when needed.

Key takeaway points?

a) Mental health is as equally important as physical and social health and students when in the workforce if faced with challenges should not hesitate to reach out and get the mental health support they need.

b) Students with pre existing health or mental health conditions are at a higher risk due to mental health inequities (which includes issues pertaining to accessibility), so taking extra care of overall health and wellbeing is crucial. It is imperative to focus on good nutrition, healthy lifestyle changes that require self-discipline and good habits.

c) Building a growth mindset that is ready to accept continuous change which requires a mindset of “learning or lifelong learning” is paramount. This mindset shift will be imperative as a first step for students or the future workforce to bounce back from adverse life events which is also called resilience. Resilience coupled with learnt optimism is and will be the way forward in this ever so complex and continuously changing world that requires students to continuously adapt and change.

Why? When one has cultivated this mindset the likelihood of distress will be lower and the negative impact on their mental and overall health and wellbeing will also be lower.

Unamboowe Abeyratne

MSc Psychology (The University of Nottingham)

MSc Management Psychology (The University of Nottingham)

IBM BA (HONS) (The University of Nottingham)

Certificate of Counselling & Psychotherapy (IMH)

Certificate for Life Coaching (University of Cambridge Continuing Education Faculty)

Management Psychologist, Founder of Edhati Consultancy

Iranjali

CROSSWORD L E G A L

Across

4. The act of legally forcing somebody to leave a house or a land.

6. The country that a person treats as their permanent home, or lives in and has a strong connection with.

10. A formal written or spoken statement saying what you know to be true, usually in court

12 A person who appeals against a decision made in court

13 A public statement that is made without giving proof and accusing somebody of doing something that is wrong or illegal

14 An official order given by a court that demands that something must or must not be done

17 The action of giving a legal status by a notary

1 A statement made by somebody or for somebody, who is accused of a crime.

2 Done for, or at the request of, one side in a case only, without prior notice to the other side.

3. The act of stating officially that something, usually a marriage, is not legally recognized

5. One of the people or groups of people involved in a legal agreement or argument

7. An official or formal statement, especially about the plans of a government or an organisation.

8. Something wrong that somebody does to somebody else that is not criminal, but that can lead to action in civil court.

9 A law that is passed by a parliament, council etc and formally written down.

11 A person who makes a formal complaint against somebody in court.

15 The action of a person being taken into custody by a police officer and charged with a crime

16. The act of committing a serious crime such as murder or rape

"Poetry is language at its most distilled andi most powerful"

Poem Tof he Month

"PLEASE STAY ALIVE"

By B.M. Vimansa Sandeepani

As the night is stained deeper The streets scream quieter The warmth of the cup She appreciates, but Her eyes too anxious To glimpse at the Shadow that dismays her Her cry Shushed by the wild rain Thus nature betraying her

It pulls away Steps back, startled by itself

Liquid life pouring Mixing with her coffee An augury was correct for once She wished it a dream The fear that once was Are no longer Only grief

She screams quietly "Please stay alive"

PHOTOGRAPHY

COLOMBO CITY

BY THIVANKA WIJESINGHE

FREEDOM

BY DULITHI JAGODA

BY GAYATHRI KARANNAGODA

WILDLIFE & NATURE

PhotobyBenjaminRaffetsedonUnsplash

BY DULITHI JAGODA

BY FARAH NAWSHARD

BY THIVANKA WIJESINGHE

BY GANGULALI DE SILVA DAYARATHNA

CASELAWOF THEMONTH

BY AKESHA EDIRISINGHE

A Petition, dated on the 7th of March 2017, was brought by a minor of age (at the time of petition) and his parents against the teachers and authorities of a public school. A Full Bench of Sisira J. De Abrew, Murdu N.B. Fernando and S. Thurairaja JJ. allowed an application that was filed in the matter of violation of the fundamental rights guaranteed under Articles 11, 17 and 126 of the Constitution.

Hewa Maddumage Karunapala v Jayantha Prema Kumara Siriwardhana Case No. SC/FR/97 of 2017, decided on 12th February 2021.

PhotobyTingeyInjuryLawFirmonUnsplash

On 13th February 2017, the Petitioner attended school as usual. The 1st and 2nd periods of the day were allocated for agriculture and the Petitioner was made part of one of three groups in class and was directed to plow a designated area of the school grounds at the plant nursery to plant vegetables. During the execution of this exercise, he had felt fatigued and had sat on a half wall near the plant nursery for a short amount of time prior to resuming this activity. He further stated that while he was washing his hands and tools, two students approached him and told him that the Respondent asked him to come to his office. The Respondent too admitted, adding that he summoned the Child Petitioner upon seeing him being seated on the culvert during the previous period, and reminded him that the Principal had previously warned them not to sit on that specific culvert as it was dangerous and questioned him as to why he had done so even after the warning.

It was observed by the material submitted that the Respondent had slapped the child petitioner across the face and the blow landed on his face, upon his left ear after which he felt excruciating pain, and severe discomfort, and was startled and disoriented.

The Petitioners stated that when the matter was taken up with school authorities, they had not taken any interest regarding the matter at hand. When the Respondent was informed about the petitioner’s condition, he did not take it seriously, hence the class teacher was informed shortly about the incident and wanted to go home as he was in pain. However, the class teacher did not pay attention and advised him not to exaggerate and tell the incident to his parents.

It was further alleged that no staff member offered any form of medical assistance to the Child Petitioner; he himself had bought two panadol pills as painkillers from the school canteen. Therefore, Petitioners argued that the teacher’s actions amounted to torture, cruel, inhuman degrading treatment or punishment as prohibited by Article 11 of the Constitution.

The Respondent vehemently denied the fact that he assaulted the Child Petitioner. However, he stated that the assault was directed at the upper body and the Child Petitioner seemed to have been at fault for ducking in the last moment. The Respondent seemed to have quite calmly explained that there were other places where the Child Petitioner could sit down if he felt tired and not on top of the derelict wall and that he further explained that only a disorderly or “rowdy” person would behave in such a manner. Further, he stated that the Child Petitioner failed to promptly inform the school Principal and the medical centre about his alleged complaints and that the Child Petitioner has only done so several hours following his return home.

The Court discussed Article 11 of the Constitution, Article 37 of the Child Rights Convention, Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights, and Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which dealt with the Violation of Fundamental Rights (Corporal Punishment and torture).

In addition, the Court cited the United Nations Committee on the Rights of the Child’s General Comment no. 8 (2006) on the Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading Forms of Punishment. It directly quoted a number of Convention articles including articles 19 and 28 and paragraph 11 of General Comment no. 8, which provided a definition of corporal punishment.

The Court further relied on the judgment of Bandara v Wickremasinghe (1995) 2 SLR 167 where it was held that,

“I agree that discipline of students is a matter within the purview of schoolteachers. It would follow that whenever they purport to maintain discipline, they act under the colour of office. If in doing so, they exceed their power, they may become liable for infringement of fundamental rights by executive or administrative action.”

4 of Circular No. 12/2016 reportedly prohibits the use of corporal punishment in government schools and lists positive disciplinary measures to be used by teachers. However, this would not apply to all schools and has not been legislatively confirmed. According to national campaigners, the Supreme Court’s judgment does not outlaw corporal punishment in schools and is unlikely to be followed by law reform. The Government is officially committed to reforming its laws to prohibit corporal punishment in all settings. In reporting to the Committee on the Rights of the Child in 2017, the Government acknowledged that there was a legislative gap and stated that “introducing a law to combat corporal punishment” was a priority issue. However, as of February 2021, no child-related bills appeared to have been tabled in Parliament.

In view of the clear scientific evidence for the obvious ineffectiveness and potentially harmful long-term effects of corporal punishment in children,

what is probably the need of the hour is a clear, explicit and unequivocal legal declaration on the matter in question.

The Court allowed the application, finding that the Fundamental Rights of the Child Petitioner enshrined in Article 11 of the Constitution had been violated by the Respondent and the State. After careful examination of all facts and relevant matters, especially the permanent lifelong damage to the Child Petitioner’s hearing ability, the Court ordered compensation of Rs. 150,000 from the Respondent to the Child Petitioner and a further sum of Rs. 5,00,000 by the State to be paid to the Child Petitioner.

S T U D Y

T I P S

Tip 1

Follow a consistent study pattern and plan. Once you identify your most productive time of the day, map out and divide your syllabus for each subject and allocate a time and day to studying and make short notes for it.

Tip 2

Use the PQ4R study strategy to help you digest the content you study. This approach has six steps: a) Preview: Skim the material. Read the titles, headings and other highlighted text. b) Question: Think through questions that pertain to the material. c) Read: As you work through the material, try to find answers to your questions. d) Reflect: Consider whether you have any unanswered questions or new questions. e) Recite: Speak aloud about the things you just read. f) Review: Look over the material one more time.

Tip 3

Make a Study Group - While you are limited to your own take on a concept when you study on your own, a study group opens you up to different opinions, so all options are challenged and therefore developed.

The law can be interpreted differently. Being aware of these differences, open to varied viewpoints, and willing to have meaningful conversations about them, cannot only help you prepare for life as a lawyer, but will also make you a more tolerant person. Your creativity skills will also get a work out when your group has to come together to solve a problem.

Tip 4

Try to Minimise your Stress Levels In order to distract yourself from the stress you get as a law student, try these easy steps such as maintaining a healthy diet, cutting down on your coffee intake, taking up a hobby such as journaling, and getting adequate sleep. Being a law student does not mean that you should give up the things you enjoyed once before learning Law!

Tip 5

Use Online Flashcards to Study &amp; Memorise

Key Notes - Create online flashcards with important laws and statutes you need to memorise for your exam. Once you have created your first deck of Online Flashcards, you can review them and change the order to test yourself properly. In this way, your brain is stimulated to a high degree which in turn will improve your memorization skills.