Editorial OFFICE BEARERS JSA 2016 W

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January - March |2016

When questioned about why he divorced his second wife Pompeia, after she was alleged to have committed adultery, Julius Caesar said to have

stated that “my wife ought not even to be under suspicion”, thus gave rise to the famous saying “Caesar’s wife must be above suspicion”.

And the fundamental principle that there should not even be a hint of bias or prejudice in the judicial process is as vital today as it was in 1889 when Lord Bowen famously compared judges to Caesar’s wife in Leeson vs General Council of Medical Education & Registration. [43 ChD 366]

Enhancing the public confidence in the judiciary and protect the dignity of its members is a timely need in the context of today’s volatile social and political environment. No time in the history of the country that the judiciary and the conduct of its individual members became news worthy and center of controversy like today. With the revolutionized mode of interaction and opinion making; so called social media culture, the challenges faced by the judiciary and other stake holders of the system of administration of justice is momentous. The question frequently posed and often goes unanswered is what is the strategy adopted by those who are responsible in protecting the dignity and independence of the members of the judiciary to combat this menace and uphold the office of the “Judge”.

With the birth and growth of the social media culture every individual with a cheap electronic device in hand is ready to make his or her opinion known to the entire world within seconds at the expense of another. It is a humongous task to tackle such issues while protecting the unalienable rights guaranteed to individuals under the Constitution, United Nations Declaration of Human Rights (UDHR) and other human rights components dealing with Freedom of Speech and Freedom of Expression etc. In such a backdrop it is considered an uphill task to protect the dignity of any members of the society, not only the members of the judiciary from implacable denigration and baseless allegations.

In the light of such a state of affairs the responsibility of individual members is extremely vital and often ought to remind themselves the true words of Lord Bowen that “Judges must be above suspicion”.

President

Ms. Inoka Ranasinghe,

Additional District Judge

Colombo.

Vice Presidents

Mr. Sujeewa Nissanka

District Judge, Kaduwela.

Mr. Hasitha Ponnamperuma

District Judge, Kegalle

Secretary

Mr. Ranga Dissanayake

Magistrate, Homagama.

Assistant Secretary

Mr. Bandula Gunaratne

Magistrate, Puttalam

Treasurer

Ms. Geethani Wijesinghe

Magistrate, Kurunegala.

Editor

Mr. Asanga Bodaragama

Magistrate, Elpitiya.

Asst. Editor

Mr. Uddala Suwandurugoda

District Judge, Warakapola.

Webmaster

Mr. Ravindra Premarathne

District Judge, Matale.

OFFICE BEARERS JSA 2016

Editorial

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It is with utmost pleasure that I forward this message to the JSA News Letter 2016.

Firstly I extend my sincere gratitude to all the members for re-electing me as the Secretary to the JSA for this year too.

While recalling certain points I emphasized at the annual general meeting held at the year end of 2015, I reiterate that there is a great responsibility left with all the judicial officers. I personally believe that the noble duty of securing independence of the judiciary and its dignity solely lies in the hands of the judicial officers. Independence and dignity of the judiciary is such that it cannot be obtained from any outsider but it is something that should be gained from the judicial conduct of each and every judge.

You may remember that in the year 2015, in addition to facilitating welfare of the members we proceeded to the extent of taking measures to protect the rights of the judges and ensure an environment in which judges can function independently. To make this a reality, last year JSA took initiatives to strengthen the economical and psychological independences of the judicial officers. We hope to continue this task further ahead and this year we mainly focus on implementing a salary structure for the judiciary which is separate from the other government officers.

In the meantime we have also identified the need to enhance knowledge and professional skills to uplift the independent and straight forward judicial decision making. Accordingly we hope to initiate measures to update legal knowledge of the judges. At the same time we expect to conduct programmes to share knowledge in order to maintain uniformity among all the judges in dispensing justice.

JSA dedicate itself to act for the best interest of the judges welfare while taking all possible steps to build up a judicial system in which judges would discharge duties and responsibilities according to the expectation of the society.

Ranga Dissanayake| Secretary |Judicial Service Association

Secretary ‘s Message

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It is with my greatest pleasure that I address you all, to convey my profound gratitude, firstly, to

the entire membership for electing me as the President of the Judicial Service Association, and

secondly, to all the committee members for working alongside me and supporting me throughout

the last few months. On this occasion I am truly privileged and honored to extend my best wishes

to the editor and all the academic contributors without whose efforts this newsletter would not

have been a success. I also wish to assure you that we, the committee, will work towards uplifting

the standards of the judiciary and work as a team to bring maximum benefits to its members.

Inoka Ranasinghe| President| Judicial Service Association

President’s Message

Mr. Majula Thilakarathne, former secretary of JSC and JSA has been appointed

as a High Court judge by the President and he took oath before His Lordship

Chief Justice and currently serving as High Court judge, Anuradapura.

Mr. Kamal Peiris, District Judge, Gampaha, scheduled to assume duties as the

Additional Secretary to the Ministry of Justice and he will be in charge of all

matters concerning judicial officers handled by the Ministry.

Mr. W. A. Wasantha Kumara, former Additional District Judge of Kuruneala ap-

pointed as the Academic Coordinator of the Sri Lanka Judges Training Insti-

tute. He has also functioned as the Editor of JSA on 2014.

Mr. Thilakathne Bandara, former Additional Magistrate of Negambo, appointed

as the Senior Assistant Secretary of JSC.

JSA wish them all in their respective appointments.

NEW APPOINTMENTS

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Address by His Lordship the Chief Justice K. Sripavan at JSA Annual Conference on 18th December 2015

Dear District Judges and Magistrates!

I personally consider this annual conference of Judges rather special as I am addressing you all as a group together for the very first time, since my

appointment as the Chief Justice of this country in February this year.

As I speak to you today, 33 Labour Tribunal Presidents are following training at the National Judicial Academy, Bhopal. This is the very first time that the Judges Institute in Collaboration with the Judicial Academy in Bhopal, has developed a special training program for all Labour Tribunal Presidents. The Judicial Service Commission having considered the importance of continuous judicial education to develop capacity of Judges, in order to equip each one of you to cope with the demands of the future and also to uplift the status of the judiciary, invested enormous amounts of money in providing in-house and overseas trainings for the entire judiciary.

This is the very first time that all judicial officers confirmed in service had been sent overseas for training. Over the last 11 months 183 Judges, i.e. – 40 High Court Judges, 110 District Judges and Magistrates

and 33 LT Presidents were sent to Delhi, Bhopal or Malaysia for judicial training. In addition, High Court Judges, District Judges and Magistrates; and Labour Tribunal Presidents were sent to Canada, Bangkok, Singapore, Hong Kong, Italy and Brazil for training. As you all know, 14 new High Court Judges were appointed since February 2015 out of which 13 High Court Judges are career judges. Career Judges have been recommended and appointed to both the Supreme Court and the Court of Appeal as and when vacancies arose. Three (03) career judges were appointed to the Court of Appeal this year and the name of the senior most High Court Judge has been recommended to His Excellency the President to be appointed to the Court of Appeal in the very near future. A career judge was elevated to the Supreme Court couple of weeks back and the ceremonial sitting was held two days ago. In addition, 22 Magistrates and 02 LT Presidents were newly recruited this year. 21 Judicial Officers have been promoted to Special Grade;21 to Class I Grade I and another 27 Judicial Officers were promoted to Class I Grade II very recently. Several training programs were conducted for court staff and IT registrars were sent overseas for training just to name a few initiatives taken by the Commission during the past 11 months.

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There are two main reasons why the JSC is emphasising on judicial training. Firstly, Judicial Officers often have little or no experience of decision making before their appointments except on personal matters. Secondly, as professional education would enrich Judicial Officers to perform quality decision making as well as add quality to their overall performance. Today, judicial education has also become a principal tool to enhance the accountability of the judiciary. This proposition is now accepted beyond doubt. Our Judges Institute therefore, is trying very hard to implement the above objectives.

In a modern democratic State, the functions of the Legislature, the Executive and the Judiciary are well marked and the scope and sphere of their respective activities is well defined. The strength and stability of a modern democratic State rests upon the vision and wisdom of the legislature on the one hand and the integrity, impartiality and the independence of the Judiciary on the other. The rule of law sustains democracy and it is equally true that to a bold and independent judiciary is assigned the task of maintaining the rule of law. The impartiality and independence of the judiciary, however, depends on the high standards of conduct followed by Judges. Only if the highest possible standards are adhered to, can the faith of the common man in the judiciary be maintained. The greatest threat to the independence of the judiciary is the erosion of credibility of the judiciary in the minds of public, for whatever reasons. Lord Denning once said: “Justice is rooted in confidence, and confidence is destroyed when right-minded go away thinking that ‘the Judge is biased’. When judges play politics, justice suffers.

Courts no doubt have to be jealous to guard against any interference with their functions but on the other hand they should not be too sensitive where no harm has been caused or was intended to be caused. There must be proper balancing of judicial independence on the one hand and the behaviour and conduct of Judges

who operate the justice delivery system on the other. The greatest asset and the strongest weapon in the armoury of the judiciary, is the confidence it commands and the faith it inspires in the minds of the people in its capacity to do even-handed justice and keep the scales in balance in any dispute. No profession can hope to exist in the world to come unless it serves the real needs of the society. Since we are standing on the threshold of a momentous era in the history of our country the work we are doing at present and will do in the future should amount to a sustainable contribution in shaping the future of our motherland.

It cannot be forgotten that the exalted position, which Judges enjoy is the result of the joint contribution made by the members of the Bar and the Bench. Therefore, Judges in a democratic State must function without any kind of fear and without any hope of favour. It is for the judiciary to clarify laws and to interpret them. Though the courts do not make laws but only declare what they are, their interpretations should take into consideration the growing sense of public justice, the equality of man and inborn dignity of the human being. It is for the judiciary to maintain what is called the supremacy of law.

As you will agree, success in the administration of justice depends on the cooperation of the three organs of the State. The executive appoints Judges of the Apex Courts and by the mode of selection determines the quality and efficiency of the Courts. The range and the depth of knowledge expected of Judges and lawyers have become far greater on account of the increase and complexity of case law and legislation as well as of the new developments in the legal sphere. If the legal profession is to be a national asset and not a vested interest, high standards have to be maintained, not only by the Judges but also by the members of the Bar.

Having said that, it is also necessary for all of us to remember that, judicial activism and judicial restraint

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are two sides of the same coin. Judicial restraint in the exercise of its functions is of great importance for the judiciary while discharging its judicial obligations under the Constitution. With a view to see that judicial activism does not become judicial adventurism and lead a Judge going in pursuits of his own notions of justice, ignoring the limits of law, the bounds of his jurisdiction and the binding precedents, the courts must act with proper restraint and self-discipline. The danger of the judiciary creating a multiplicity of rights without possibility of adequate enforcement is a real one. Judicial comity demands that a binding decision to which attention has been drawn by counsel should neither be ignored nor overlooked. There are real limits to what the judicial process should attempt to accomplish and the judiciary should resist the temptation to cross those limits.

We have to remember that our role is to uphold the majesty of the rule of law and this power is meant to be harnessed in public interest. There are certain tasks which it is not possible for the judiciary to perform. Complex problems of policy cannot be resolved with the limited resources available within the confines of the judicial process. These kinds of problems are incapable of resolution by judicially manageable standards and the courts must tread carefully when confronted by them. It is the duty of the courts to ensure that while exercising their powers, they do not overstep their permissible limits and act within the bounds of the Constitution and the law. Greater the power - greater is the need for restraint. No civilized system of justice can permit judicial authoritarianism and, therefore, the Judges at all levels, are expected to be circumspect and self-disciplined in the discharge of their judicial functions. Remember ego has no place in the discharge of judicial functions. Where ego takes over, rationality, logic, and legal rules suffer.

I would also like to use this forum to emphasis the need to see that the arrears of court cases which have mounted up till now get eradicated at the earliest. Human hope

has its limits and waiting endlessly is not possible in the current lifestyle. When delays become the order of the day, the public will lose confidence. As you all well know one of the causes for delay in the disposal of cases is “Judge-made”. Lack of punctuality, laxity, lack of control over the case file and court proceedings contribute in no small measure to the delay in disposal of cases. The grant of unnecessary adjournments on the mere asking adds to this problem. Court time is sacrosanct and no Judge or the member of the Bar has any right to waste it. The Judges at all levels must always respect the court time and remain punctual. No laxity in that behalf is permissible. Not adhering strictly to court timings is a serious aberration. It must be avoided at all costs. The delay in pronouncing judgments is yet another aspect on which we the Judges at all levels must address ourselves. It causes anguish to the litigant and can become a cause of “suspicion”. The inordinate delay in delivering judgments is almost inexcusable.

Effective January 2016, even the Hon. Judges of the Supreme Court will be sitting at least four (04) days a week. In addition there will be 03 benches constituted. We have been testing this out this month and will be strictly implementing when court sittings resume after the vacation. Therefore, I expect the same level of commitment from all Judges from lower courts to Appellate Courts. I also wish to underscore that promotions will be on both merit and seniority.

It must be borne in mind people give us high respect because we are Judges. If we do not dispense justice our office alone does not entitle us for that respect. It is in the manner of functioning rather than the position which earns esteem in today’s modern world. In conclusion let me say that it is my earnest desire that each and every one of you will conduct yourselves with self-restraint and dispense justice honestly, expeditiously and strive to restore some of the grandeur of our judiciary in the coming year.

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Discrimination Of Women, CEDAW Convention And The ROLE OF THE JUDICIARY

Chamath Madanayake (LL.B, LL.M, Dip in Forensic Medicine)Additional District Judge|Kalutara

Ignorance of rights and the applicable legal procedures in courts, lack of resources, the high costs of litigation and the inaccessibility

of courts prevent women from seeking justice. Social antagonism at women claiming rights or intimidation not to take the dispute outside their community further discourages women from pursuing legal action. Ineffective investigations, narrow interpretation of evidence by judges, lenient punishment meted out to those convicted of offences against women, the attitudes or perceptions on gender equality of judges and the gender based myths and stereotypes may result in denying women their remedy before the courts both in criminal and civil litigation. In these circumstances, the Judiciary plays a vital role in protection and promotion of women’s rights.

Universal Declaration of Human Rights envisages that ‘All human beings are born free and equal in dignity and rights’1 .It further stipulates that ‘everyone is entitled to all the rights and freedoms set forth in the declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or

1. Article 1

other status.2 It ensures that all are equal before the law and are entitled without any discrimination to equal protection of the law.3

Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) emerged as the first legally binding international instrument for the protection of human rights of women. It was adopted by the United Nations General Assembly in 1967 and Sri Lanka ratified the Convention in 1981. The convention is considered a milestone in the process of creating gender equality and eliminating discrimination. With the ratification, State parties accept a range of legally binding obligations to eliminate all forms of discrimination against women and ensure equality between men and women at their domestic levels. Courts, as an organ of State are also bound by the obligations set out by the CEDAW Convention. The duties of courts in this respect are two fold, firstly to protect women from being discriminated by others and secondly to prevent women being discriminated by its own conduct.

CEDAW defines ‘discrimination against women’

2. Article 23. Article 7

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to include ‘any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.4 (emphasis added)

State parties to CEEDAW condemn discrimination against women in all its forms and have agreed to pursue by all appropriate means to eliminate discrimination against women.5 The UN Committee on CEDAW identifies direct discrimination as well as indirect discrimination.6 Direct discrimination against women constitutes different treatment explicitly based on grounds of sex and gender differences while indirect discrimination occurs when a law, policy, programme or practice appears to be neutral as it relates to men and women, but has a discriminatory effect in practice on women, because pre-existing inequalities are not addressed by the apparently neutral measure.7 It further recommends that State parties have an obligation to ensure that women are protected against discrimination

4. Article 1 of CEEDAW5. Article 2(f)6. General Recommendations No 28 on the core obligations of

State Parties under Article 2 of CEDAW7. Paragraph 16 of General Recommendations 28 on CEDAW

TJudiciary plays a vital role in protection and promotion of women’s rights.

he

committed by public authorities, the judiciary, organizations, enterprises or private individuals in the public and private spheres. (emphasis added) Therefore it is the duty of all courts to assure in all matters, that women are not discriminated either by public bodies, private institutions or private individuals.

The guiding principle behind CEDAW is to attain substantive equality, namely equality of opportunity, equality of access to opportunity and equality of results. Equality of results should be reflected in the actions taken by courts by bringing in actual changes for women in every matter or action. This should be reflected at all stages of a case, namely consideration of bail, trial, judgment, sentencing, declaration of civil rights etc.

Articles 2,3 and 4 oblige the states to enact a policy of non discrimination through which the principles of equality will be embodied in national Constitutions and other laws, create enabling conditions and take affirmative actions. The Constitution of Sri

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Lanka guarantees that no Citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth.8 It further provides for special provisions to be made by law, subordinate legislation or executive action for the advancement of women.9 If the Constitution itself permits special laws to be enacted to protect women, it implies that the legal framework of the country should always ensure the protection of the rights of women. Even though Article 12(2) seems to provide equal status for men and women, implication derives from Article 12(4) is that the law should facilitate women in situations where the gender neutral nature of such law itself places women in an unequal status due to disadvantageous positions hold in society.

State parties should ensure that women whose rights have been violated are afforded accessible and timely remedies with legal aid and that they are given a fair hearing before a competent court or tribunal.10 The Convention casts a duty on courts as an organ of State to ensure conformity with the obligation to refrain from engaging in any act or practice of discrimination against women.11 The obligation imposed under Article 2(e) on States to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise require the Courts to supervise such actions when discriminatory actions are challenged.

The Convention requires the States to formulate policies of eliminating discrimination against women. Such policies should ensure that all branches of government (executive, legislative and judicial branches) assume their respective responsibilities for implementation of such policies.12 General Recommendations of CEDAW Committee further

8. Article 12(2) of the Constitution of the Democratic Socialist Republic of Sri Lanka (1978)

9. Article 12(4) of the Constitution10. Paragraph 34 of the General Recommendations No. 28 to

CEDAW11. Article 2(d) of CEDAW12. Paragraph 25 of General Recommendations No. 28

requires the State Parties (courts as an organ of State) to ensure that all government bodies and organs are fully aware of the principles of equality and non discrimination on the basis of sex and gender.13 In order to ensure practical realization of the rights of women, increasing awareness and sensitization among judicial officers on the discrimination of women and a change in attitudes in favour of a more gender equal approach is required. The judges are to be enlightened of the need to have non discrimination against women in matters connected with their rights. Such action would promote their skills and change their attitudes. The Concluding Observations of the CEDAW Committee on Sri Lanka has recommended the State to carry out additional educational and awareness raising trainings for the judiciary and public officials.14

States Parties have undertaken to incorporate the Convention in their domestic legal systems or to give it otherwise appropriate legal effect within their domestic legal orders in order to secure the enforceability of its provisions at the national level.15 Keeping with the said obligations Sri Lanka so far has not enacted domestic legislation. However according to the above recommendation of the Committee Sri Lanka is bound to give the Convention appropriate legal effect within its domestic legal orders to achieve the objects of the Convention. Therefore all Courts of law in Sri Lanka through their judgements and orders should enforce and ensure the applicability of the provisions of the Convention.

Many States with a dualist tradition do not translate the provisions in to the domestic legislation assuming that such a move would be in contravention of the state sovereignty . The CEDAW Committee in commenting on the judgment in Vertido vs Phillipenes, held that ‘ no other issues pierce the veil of state sovereignty as much as the issues concerning

13. Paragraph 17 of General Recommendations No. 2814. Paragraph 25, Concluding Observations on Sri Lanka of

CEDAW Committee, February 201115. Paragraph 31 of General Recommendations No. 28

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women and children’.16 Increasingly, though, especially in countries with a commonwealth tradition of law, judiciaries are stepping in to the breach, appealing directly to international law where national legislation does not exist.17 In the case of Vishakha and Others vs State of Rajasthan and Others18 the Supreme Court of India drawing on Recommendation19 of CEDAW basically legislated on sexual harassment, requiring State companies and corporations to have a policy on sexual harassment. Other judiciaries that have drawn directly on international law with regard to women’s issues even in the absence of such domestic legislation are Botswana in Unity Dow vs Attorney General of Botswana19, the Nigerian Supreme Court in Muojekwu vs Ejikeme,20 Mauritius Supreme Court in Bhewa vs Government of Mauritius21 and the Malaysian Supreme Court in Noorfadilla Binit Ahmad Saikin vs Chayed Bin Basirun and Others.22

The Bangalore Principles laid down guidelines on how to incorporate human rights norms in judgments in the absence of national action or where national legislation or practice conflict with these standards.23

Principles 4 and 7 acknowledge that “it is within the proper nature of the judicial process and well-established judicial functions for national courts to have regard to international obligations which a country undertakes, whether or not they have been incorporated into domestic law, for the purpose of removing ambiguity or uncertainty from national constitution, legislation or common law” or if the national law is uncertain or incomplete.

Therefore CEDAW being a legitimate source of law, can be applied by our courts in domestic judicial decisions as a guide on interpretation, to resolve

16. CEDAW/46/D/18/200817. Dr. Radhika Coomaraswamy, Grotius lecture delivered on

10.04.201418. AIR 1997 SC 301119. (1992) L.Rep Commonwealth,62320. (2000) 5 N.W.L.R. 40221. (1991) LRC (Const)22. (2012) 1 MLJ 83223. P.N.Bhagawati, “Bangalore Principles”, 14, Commonwealth

Law Bulletin, 1196 (1988)

ambiguities and fill gaps in domestic laws and as a source to define concepts of equality and discrimination.

The Courts are bound to apply the principle of equality as embodied in the Convention and to interpret the law, to the maximum extent possible, in line with the obligations of States Parties under the Convention. However, where it is not possible to do so, courts should draw any inconsistency between national law, including national religious and customary laws, and the States Party’s obligation under the Convention to the attention of the appropriate authorities since domestic laws may never be used (by courts) as justifications for failures by States parties to carry out their international obligations.24 (emphasis added)

In terms of Article 15 States parties shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals. States parties have agreed that all contracts and all other private instruments of any kind with a legal effect which is directed at restricting the legal capacity of women shall be deemed null and void. Therefore it is the duty of courts to uphold this provision in administering justice.

Discrimination against women could occur through acts or omissions of State parties. Thus discrimination can occur through the failure of States to take necessary legislative measures to ensure the full realization of women’s rights, the failure to adopt national policies aimed at achieving equality between men and women and the failure to enforce relevant laws.25 (emphasis added) Therefore it is the duty of all courts to refrain from giving effect to negative attitudes or perceptions on gender equality, apply the provisions of CEDAW Convention, to widely interpret its provisions to uphold gender equality and to fully enforce them in order to eliminate all kinds of discrimination against women. Failure to do so by any court may result in discrimination against women, by its own actions.

24. Paragraph 33 of General Recommendations No. 2825. paragraph 5 of ibid

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A definite degree of coercion to provide information is tolerated to enable a stable society. Therefore continuing balance between individual human rights and public confidence pertaining to administration of criminal justice is essential. However our Constitution or any other international instruments protecting human rights are not acted as barrier for the development of law on this context. 3

In the case of Rock vs. Ireland4 Hamilton CJ stated,

“There is no doubt that the right to silence and the presumption of innocence in a criminal trial are implicit in the terms of the Constitution ……. The right to silence is not absolute but is subject to public order and morality.”

Historical Origin Of Right To Silence And Presumption Of Innocence

The origin of right to silence goes back to the middle ages in England. During the 16th Century in English courts there was a method of Star Chambers5 and it developed the practice of compelling accused to take an oath known as the “ex-officio oath” and, the accused had to answer questions, without even a formal charge, put by the judge and the prosecutor. According

3. Article 13(5) of the Constitution4. (1997) 3 IR 4845. Law commission of India on Article 20(3) of the

Constitution of India and the Right of silence

Need To Revisit The Protective Clauses In Fair Trial

Bharathie Rasanjula Wijerathne,| LLM (Colombo) BSc. Additional Magistrate| Kalutara.

Lord Hewart CJ in Rex v Sussex Justices; Ex parte McCarthy,1 stated;

“…it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Fundamental and direct end of adjective law is securing the proper execution of the substantive law.2 The rationale behind this is importance of identifying the real culprit of offence and fair trial. A fundamental element of the right to fair trial is that every person should be presumed innocent unless and until proved guilty following a fair trial. The presumption of innocence is person must not be convicted where there is a reasonable doubt about his guilt. It seeks to eliminate the risk of conviction based on factual error.

When the perusal of present crime scenario in the sociological approach, it is manifestly clear that the necessity of adapting fair criminal justice process according to culture, time and society. On the other hand considerable amount of public money is spent for the process of administration of criminal justice by the government. The individuals are entitled to personal liberty and privacy, but only up to a certain point.

1. [1924] 1 KB 256, [1923] All ER Rep 2332. Jeramy Benthum, British philosopher, jurist, and social

reformer.

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to this practice, if an accused person refused to give answer, he was tortured and compelled to answer. As a result of harsh, inhuman way of torture, innocence also compelled to admit offences. Due to unfairness of this practice, it was later abolished and established this practice of the accused has a right against the self incrimination.

The right relating to Presumption of innocence was commenced well before the 13th century and earlier it was considered as a part of Roman law principle. In Latin it was referred as Ei incumbit probatio qui dicit, non qui negat (the burden of proof lies with who declares, not who denies).

As recognized by the Article 11(1) of the Universal Declaration of Human Right in 1948,

“Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”.

In the decided case of Woolmington vs DPP 6 “Lord Snkey” had stated that the golden thread of English Criminal law is that the burden on the prosecution. In the time of Woolimington came before House of Lords, the insanity was the only defence that the accused was required to prove under the common law.7 This was commenced with the Mc’Naughten Rule. 8 If the defendant insane at the time of the crime is committed, he is not responsible for his action. The basic test for determining whether a defendant was insane at the time of crime is committed, is called the Mc’Naughten Rule. According to this Mc’Naughten Rule, at the time of committing crime the accused must have been suffering from a defect of reason and not known the nature and quality of his act.

6. (1935) AC 4627. Evidence in Context, 3rd Edition 2012 ROUTIEDGE

Publication, Jonathan Dock and Claire Mc Gourlay, p418. Crime And Criminology, Eighth Edition, Sue Titsu

Ried p128

Therefore it was admitted that the presumption of innocence and right to silence were accepted as part and parcel of English Common law principles.

Revisit Of Theory And Privileged Criminals

Now the practice of the Star Chambers has been completely changed. The presumption of innocence is specifically enshrined in Article 6 of European Convention of Human Rights. However it is not recognized as an absolute since legislatures may reverse the burden of proof within reasonable limits which take account of the importance of what is at stake and of maintaining the rights of the defendant. Introducing a more practical criminal justice process to minimize the damage to the society from criminal activity is a necessary requirement.

In procedural Criminal Law, the basic principle is that the duty with the prosecution to prove the accused’s guilt. Well organized, well planed offences with aid of latest technological development is the main challenge in the present criminal justice process. The prosecution has been given the overall burden in criminal justice process. The accused and judge are passive characters in this adversarial system and it only considered whether that the person brought before the court had committed the particular crime or not. It could be defined as the right not to have anything to do with courts and that one can live quietly, privately and free from the compulsion to provide information to state. Our present system is not concerned about revealing the real offender of the crime when the accused is discharged. As a result of this practice, most criminal cases are ended up with acquittal while the victims are suffering.

Contrary to this principle in countries which followed the inquisitorial system, the accused is expected to contribute discovery of truth. However finally both systems are targeting the final result of proper administration of criminal justice process and prevention of miscarriage of justice. Administrating a proper criminal justice

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process is commenced at the investigations stage and expanded to convictions, sentences, successful reintegration and restoration of the criminals and victims to the society.

With the development of technology, many hi-tech offences are introduced. Hence it is difficult to conduct investigations and brought evidence before court following traditional procedure. Its antecedents are outdated in our complex society and the reason for its existence has fallen away. It is also cumbersome and high expensive practice.

On the other hand expert’s assistance and opinion is necessary for the field of investigations such as Computer Forensic, Forensic DNA analysis and other forensic sciences. The computer offences are committing in the cyber space and evidence is computer data. Therefore knowledge about the criminal activity is always with the accused. Any person with sufficient experience and desire is able to commit computer crimes in abundant personal room without leaving evidence perceived by senses of a lay person. If there is no direct evidence, the criminal court has to depend on circumstantial evidence such as DNA, finger print and computer data. Circumstantial evidence is especially significant in litigation of issues related to information technology, where the technological complexity and novelty, the frequent absence of an adequate paper trail, and the lack of legal precedents, make direct proof of ingredient of the offence is difficult. In order to overcome these problems, many legislations were passed by the Parliament of Sri Lanka. Computer Crimes Act No. 24 of 2007, Evidence (Special Provisions) Act No 14 of 1995 and Electronic Transaction Act No. 19 of 2006 are some of them.

In the decided case of Benwell Vs Republic of Sri Lanka9 disclosed us the necessity of introducing new laws according to the development of technology.

9. (1978/79) 2 SLR 194

“Computer evidence is in a category of its own. It is neither original evidence nor derivative evidence and in

admitting such a document a Court must be s a t i s f i e d

that the document has not been tampered

with. Under the law of Sri Lanka computer evidence is not admissible under any section of the Evidence Ordinance and certainly not under section 34”

Though the offensive act may also be committed against an individual, his/her property or reputation, crime is considered as an offence against the state. The protection of an accused against abuse of his rights is the aim of right of silence and presumption of innocence. “It has now become a device which shields the truth from the light of day and itself leads to abuse of the process of criminal justice”. 10

“No man is punishable or can lawfully be made suffer in the body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of land.”11

In Sri Lankan courts, the case of Liyanarachchi & Others Vs. OIC Hunnasgiriya12 it has been decided that,

“It certainly leaves an impression that an accused would remain silent at his peril. The presumption of innocence which is an expression of the privilege against self-incrimination is a recognized principle of criminal

10. The right of Silence is the game worth the candle? K van Dijkhorst

11. A. V. Dicey, Law of the Constitution.12. (1985) 2 SLR 256

14


justice in Sri Lanka. The presumption carries with it the corollary of the right to silence. The failure of an accused to give an explanation when one is expected may give rise to discretionary presumptions as provided by law but one must not choose words which may give an accused an impression that he must testify if he wants to stand a chance of an acquittal.”

On the other hand section 114(g) of the Evidence Ordinance says that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavorable to him.

Today most grave offences are ended up as undisclosed tragedies. This is adversely affected to the public confidence regarding the law and order of the country. “Offenders are the threat to the society. State machinery is operative to prevent the crime and penalize the offender. However it is a matter of concern for all that innocent must not suffer in the name of justice”.13

From 18th and 19th centuries it was accepted that the prosecution duty of proving the guilt of the accused beyond reasonable doubt and accused’s fundamental legal right to silence. Then this was changed in England and there was a growing body of opinion that such a burden did not include a duty to disproving defences was on the accused.14 Therefore it is very important to balance between protecting the community from criminal act and protecting the rights of individuals. The law enforcement agencies would only charge those after obtaining sufficient evidence, and that while they are investigating the cases, they do not presume them to be guilty but once they reach trial stage, they might well be factually guilty.15 Therefore, for the purpose of drawing inference of factual guilt, it is significant to havean unbiased, independent and reliable investigation

13. The Adversarial v. Inquisitorial Models of Justice Prof. Madhav Prasad Acharya www.ksl.edu.np/cpanel/pdf/adversial.pdf 03.11.2015

14. Evidence in Context, 3rd Edition 2012 ROUTIEDGE Publication, Jonathan Dock and Claire Mc Gourlay, p41

15. Criminal Procedure Code 2010www.sal.org.sg/...... 17.11.2015

process. In England Criminal Justice and Public Order Act 1994 and the Criminal Procedure and Investigations Act 1996 were introduced to prevent ambush defences at criminal trials.

Sri Lankan courts have taken their every possible endeavor to get maximum benefit from the deviations of above traditional common law principles according to the importance of the situation to protect law and order. Unfortunately attention has not been given by our legislature to introduced specific statute to gain this benefit. On the other hand the Constitution of Sri Lanka is in positive attitude in developing laws with necessity for the social benefit.

In the proviso to the Article 13(5) of the Constitution is a very important provision which encourage development of this subject.

“Provided that the burden of proving a particular fact may, by law, be placed on an accused person.”

Contrary to our system, truth finding is the main goal in the inquisitorial system of law. Whereas adversarial theory dictates that the truth is more likely to be elicited through the sharp clash of proof. Therefore adversarial system consider as a foot ball game (fight theory) and judges act as passive umpires.

“Adversary theory suggests that if the judge diverges from passivity by attempting to develop the evidence at trial, or to arrange the compromise of the case, he runs a serious risk of undermining his ability to evaluate neutrally the adversaries’ presentation.”16

This is a position of common law that continue to govern, when the parties in even terms. According to this rule, neither party to the case is in authority. This case was summarized by the Cave J in the English case of R vs. Mitchell.17

‘Undoubtedly, when persons are speaking on even terms

16. Granville William The Proof of Guilt 3rd Edition London Steven & Sons 1963p 187

17. (1892) 17 Cox CC 503,508

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and a charge is made, and person charged says nothing, and express no indignation, and does nothing to repel the charge, that is some evidence to show that he admits the charge to be true.’

Even the countries follow the common law not always consider “right to silence” as a absolute right. In some circumstances, an adverse inference may be drawn by the court against the accused who elect to remain silent during police questioning and who fail or refuse to mention a fact they ought to reasonably have mentioned and which is later relied as their defence.18

Finality and Conclusion

Therefore the aim to obtaining truth of the matter through extensive investigation and examination of all evidence is the most practical way of truth finding mechanism and identification of criminals and prevent social agony. The endeavor of disclosing truth through the open competition between the prosecution and the defense to make the most compelling argument of their cases is subjected to reconsider with present criminal tendency. The final result seeking from the criminal justice system of country is value more highly the community’s gain through the proper conviction of those who are guilty of an offence rather than the protection of the accused individual’s autonomy. At the end of lengthy trial if the accused has been given the opportunity to come with ambush defences or technical error of the prosecution case, it vitiates the whole process of administration of criminal justice system. As discussed from the beginning, the process of criminal justice is not considered as a game which has equal chance of conviction or acquittal. If there is specific offence which suffers society, the culprits must be identified and appropriate punishment should be imposed according to the law.

18. Evidence Amendment (evidence of Silence ) Act 2013 New South Wales.

Law is order, and good law is good order

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HEADNOTES OF RECENT UNREPORTED CASES

Mahie Wijeweera |Distrct Judge, Tangalle.

RAMESH, alias SASI KUMAR V. ATTORNEY GENERAL

COURT OF APPEALH.N.J. Perera, JA. H. M. D. Nawaz, JCourt of Appeal Case No: C.A.16/2013HC Batticaloa Case No. HCB/2536/08Decided on 27.03.2015

Charge of Murder: Death caused by Stab Injury: Sudden and temporary loss of self-control: Will intent to kill negate plea of provocation?: Plea of Grave & Sudden Provocation not raised by the Accused as a defense: Defense of Total Denial: Duty of Court to look into the Defense of Grave & Sudden Provocation nonetheless: Reasonable Man: Subjective and Objective Tests: Section 105 of the Evidence Ordinance: Exception 1 to Section 294 of the Penal Code

The Deceased died as a result of 2 stab injuries caused by the Accused. The stabbing was the result of an altercation occurred right after the Deceased slapped the Accuser’s mother and assaulted his pregnant sister. The Accused was under the impression his sister already dead as a result of the assault by the Deceased, at that time of stabbing. Accused chose not to plead any special defense though, but made a Dock Statement explaining the incident without admitting he stabbed the Deceased.

Held: Hon. Nawaz J.

(1) Trial Judge must direct his or her mind to ascertain whether there are extenuating circumstances that

would bring the case against the accused within a general or special exception notwithstanding the accused has not raised such defense.

(2) If the existence of the extenuating circumstances stipulated in the exceptions and provisos of the Penal Code emerges at the trial, whether it be that of the prosecution or defense, Section 105 of Evidence Ordinance will have no application in such a situation. In such a situation there will be no burden as required by Section 105 as the extenuating circumstances have already emerged at the trial.

(3) Test of Subjective Man or Objective Man

Sri Lankan Law which Prevailed: Test to be applied is objective one, influenced by English Law at the time. Muthu Banda v the Queen.1

Current Law in England: In AG for Jersey v Holley2 it was held current English law reflected by Professor Ashworth’scomment: ‘The proper distinction is that individual peculiarities which bear on the gravity of the provocation should be taken into account whereas individual peculiarities bearing on the accuser’s level of self-control should not.

Current Law in India: Indian Supreme Court has modified the purely objective test by placing the ordinary person in the “same class of society as the accused” Nanavat.3

1. 56 NLR 2172. (2005) UKPC 233. AIR 1962 SC 605

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(4) The conviction for murder was substituted to one of culpable homicide not amounting to murder as mensrea for murder was absent due to grave and sudden provocation.

Hon. Nawaz J,4 ‘’It is necessary to revisit our concept of a reasonable man. He has to be attributed with such characteristics of the accused as would impact on the gravity of provocation to the reasonable man, as has been modified in England and India.’’

Writer’s note: Our courts were always receptive to the developments of English criminal law. Ex: The concept of suddenness in the defence of ‘grave and sudden provocation’ has been watered down by the ‘doctrine of continuing or cumulative provocation’ by our Courts in cases such as Samithamby V. The Queen,5 Gamini Silva V. AG,6 and Premlal V.AG, despite being fundamentally against the law prevailed at the time of enactment of Penal Code (see Stephen, J.E, Digest of the Criminal Law ). 7 It is open to apply such developments based on casus omisus.

ORIENT FINANCIAL SERVICES CORPORATION LTD V. RANGE

FOREST OFFICER

SUPREME COURTHon. Tilakawardane, J.Hon. Ekanayake, J.Hon. Dep, PC, J.SC Appeal No. 120/2011CA (PHC) APN No. 26/2011HC/AMP/REVISION/343/2009MC Ampara No. 31773Decided on 10.12.2013

Vehicle Inquiry: Confiscation of vehicle: Section 40A of the Forest Ordinance: Owner of vehicle within the meaning of section 40 of the Forest Ordinance: Is it the Absolute or Registered Owner? Right to be heard 4 C.A.16/2013,27.03.20155 75 N.L.R 496 1998, 3 SLR 2487 3rd edn, Arts 224 and 225 (1883)

of the absolute owner in an inquiry: Applicability of section 433A of the Criminal Procedure Code to a vehicle inquiry under the Forest Ordinance

The Magistrate after an inquiry confiscated the vehicle used in committing a forest offence. The registered owner, being the accused, did not claim the vehicle in the inquiry but the absolute owner did. The Magistrate confiscated the vehicle based on following reasons.

• Intermsof theleaseagreementtheabsoluteownercan recover the loss from the registered owner.

• After the conviction of the registered owner,absolute owner had failed to terminate the lease agreement.

• If thevehicleisgiventotheabsoluteownertherewas a possibility it could end up with the accused in the capacity of registered owner.

The High Court and Court of Appeal affirmed the order by the Magistrate to confiscate the vehicle. Court of Appeal,inter alia, decided the owner envisaged in section 40 of Forest Ordinance is the registered owner and not the absolute owner. In other words, Court of Appeal stripped the absolute owner of its right to be heard in a vehicle inquiry. The Absolute owner appealed to the Supreme Court to revise that order.

Held:

(1) The owner includes the registered owner as well as the absolute owner. Thus the absolute owner has a right to be heard at a claim inquiry.

(2) However when it comes to showing cause as to why the vehicle should not be confiscated, only the person who is in possession and control of the vehicle could give evidence to the effect that the offence was committed without his knowledge and he had taken necessary steps to prevent the commission of the offence.

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(3) There was no need to interfere with confiscation since the Magistrate afforded an opportunity to the absolute owner to show cause and only after considering the totality of evidence the order was made.

Hon. Priyasath Dep J:

“The owner, contemplated under Section 40 of the Forest Ordinance read with Section 433A of the Code of Criminal Procedure Act includes the registered owner as well as the absolute owner. The absolute owner has a right to be heard at a claim inquiry.’’(Emphasis mine)

Writer’s Note:

• Dicta in Orient FinanceV. RFO8 wasrecently followed in People’s Leasing Company Limited V. The Forest Officer9 as current law. Though the Supreme Court has not quashed the confiscation it overruled the ratio of Orient Financial Services Corporation Ltd. V, RFO.10 The overruled Court of Appeal judgment was published on an earlier occasion in JSA Newsletter.11

• Atthedateof theoffencecommittedpertainingto Orient Finance (supra), Forest Ordinance (Amendment),12 which deemed Section 433A not applicable to forest offence, was not in force. The implication of this amendment has not made any impact to the ratio decidendi of Orient Finance (supra) judgment, as evidenced from People’s Leasing case. In that case the accused were charged after the amendment but Hon. Chitrasiri J applied the ratio of Orient Finance (supra) nevertheless.

.

8. S.C. Appeal No.120/2011,10.12.20139. C.A. Revision NO.CA(PHC) APN 106/2013,22.01.201510. CA(PHC)APN NO.26/2011,28.04.201111. http://www.jsasl.org/docs/Judgements/CA_PA_26_2011.

pdf12 Act No 65 of 2009

H. G. SUJITH PRIYANTA V. ATTORNEY GENERAL

COURT OF APPEALK.T.Chitrasiri, J.W.M.M.Malanie Gunaratne, J.C.A.[PHC] NO.157/12HC.COLOMBO HCRA 834/11MC GALLE 41311Decided on February 19, 2015

Vehicle Inquiry: proviso to section 40 of the Forest Ordinance: Registered owner’s verbal instructions to the driver not to commit any forest offence: Is it sufficient discharge of registered owner’s liability: Defective Charge Sheet: Accused unconditionally pleaded guilty to the charge: Right of the appellant, who is not a party to the main case, to bring that defect to the notice of Appellate Court: Collateral attack on the order of the court accepting the plea, in the appeal of vehicle inquiry by a third party: Effect of the defect in the charge sheet on confiscation

Two accused have been convicted of an offence under the Forest Ordinance subsequent to an unconditional plea of guilty tendered by them. The Appellant, the registered owner, claimed the vehicle before the Magistrate on the basis he has given verbal instructions to the driver (Accused) not to transport timber without a permit. He has also stated that he terminated the services of the said driver after the incident.The Appellant sought to revise the confiscation order because it was done despite his repeated instructions to the driver not to commit any offence.

The appellant also canvassed the legality of conviction, claiming the charge that had been readbefore the act of finding guiltybeing defective.

Held: Hon Chitrasiri J.

• mereverbal instructions given to the driver is not sufficient to establish that the owner has taken the necessary precautions to prevent the offence being committed

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• TheAppellantisnotentitledtoraiseanissueasto the defects in the charge after the accused have pleaded guilty to the charge.

AZAN MOHAMAD RIZWAN V. ATTORNEY GENERAL

COURT OF APPEALK. T.Chitrasiri, J.Malinie Gunaratne, J.C.A. Revision No.CA [PHC] APN 141/2013H.C.Ratnapura HC 25/2010M.C.Pelmadulla Case No.33332Decided on 25.03.2015

Proper Sentence: Consideration: Starting point within the prescribed punishment: Section 303 as amended by Criminal Procedure (Amendment) 47 of1999

The Accused, upon pleading guilty for committing culpable homicide not amounting to murder, punishable under Section 297 of the Penal Code, was sentenced to 12 years rigorous imprisonment. Accused contended the sentence was excessive.

Held: Hon. Chitrasiri J

• The judges are to pass lawful and appropriatesentence being mindful to the objective of sentencing when exercising the discretion given to them under the law.

• Thecourt shalldecide first,ona startingpointwithin the prescribed punishment.A mere statement to say that the court has considered aggravating and/or mitigating factors will not be suffice.

• Startingpoint couldbedetermined consideringthe seriousness of the crime and the circumstances under which the particular offence is committed.

• Thereafter, it is the duty of the judge to comedown the period after considering the mitigating

factors and then to increase it from that point after looking at the aggravating factors or vice versa

Writer’s Note:

Hon. Chitrasiri J dealing with sentencing in general, gave detailed and invaluable guidelines into various aspect of sentencing, and I humbly invite you to read full text to gather in depth knowledge into subject.

S. S. B. D. G. JAYAWARDENA V. K. N. DEEN

COURT OF APPEALW.M.M. MalanieGunarathne, JP.R.Walgama, JCA(PHC) 149/2014HC Nuwaraeliya Case No. HC/NE/29/13MC Nuwaraeliya Case 32649Decided on 17 -06-2015

State Land Recovery of possession Act: Land let on 50 years lease: Lease agreement registered in the Land Registry: Lease Rental paid though irregularly: Receipts of lease rental presented to the court: Does it amount to ‘Permit’

Claimant, the Chairman of the Tea Research Institute, sought an order for eviction by virtue of Section 5 of theState Land Recovery of possession ActNo. 07 of 1979 claiming the Respondent is in unlawful possession of land.

The Respondent stated he is in possession of said land upon a fifty (50) year Lease Agreement, entered between the Institute and himself, which is registered in the Land Registry. The Respondent has tendered lease agreement and receipts of the payment of monthly rental paid, though irregular lily, as evidence of holding a valid permit. His position was, it is not possible to evict him without recourse to civil action, as he is a lessee.

The learnt Magistrate accepted this position and dismissed the Claimant’s application, declaring the Respondent has valid permit, i.e. lease agreement.

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In the revision, High Court has decided it has no jurisdiction to rule on the matter, as this is concerning state land and only the Court of Appeal can determine such matters.

Held:

• Themerefactthatsuchacivilactionispossibledoes not have the effect of placing the dispute outside the purview of the State Lands (Recovery of Possession) Act.

• The lease agreement has been terminated bythe Claimant due to irregular payment of lease rentals. Since there is no valid lease it is possible for the Claimant to come to court under State Lands (Recovery of Possession) Act.

• TheAppellantsinvoketherevisionaryjurisdictionof the High Court to set aside the order of the Magistrate in terms of Article 154 P(3)(b)and 13th Amendment to the Constitution has no relevance to the case in hand. The judgment of SolimuttuRasu VS. Superintendent of Stafford Estate13 (High Courts cannot issue writs pertaining to state lands) has no application to this kind of revisions in High Courts.

• Theratioof followingjudgmentwasappliedincoming to the above conclusion.

‘’Subsequent payments made by the occupant to the owner does not cure the deficiency of not having a written permit or authority granted by the State according to law to remain on a state land. ‘’M.R.M. Ramzeen, Competent Authority vsMorgan (PVT) LTD14 (emphasis mine)

13. SC App 21/13 (SC Special LA 203/12 14. S.C. Appeal 214/12,27.06.2013

AMBAWA THRIFT CREDIT CO-OPERATIVE SOCIETY V. D.M. SUMANA DASANAYAKA

COURT OF APPEALK. T.Chitrasiri, J.Malinie Gunaratne, J.C.A.[PHC] NO.168/2011H.C. Kurunegala HCR NO 25/2008MC Kuliyapitiya 20976Decided on 16th January 2015

Section 59 of the Co-operative Societies Act No.05 of 1972 (amended by 11 of 1992): Non payment of the sum mentioned in the arbitral award: Recovery of the sum by way of a fine: Default sentence under sec. 291 of Criminal Procedure Code for non-payment: Right of the Society to Recover Money due even after the accused Undergone Imprisonment for Non-payment: 15 of Criminal Procedure Code: Warrant of distress

Anapplication was filed under Section 59 of the Co-operative Societies16 act in the Magistrate’s Court in order to recover a sum declared by an arbitral award. The Magistrate made order directing the Accused to pay the amount claimed, by way of installments. As the accused has not complied with this order Magistrate directed the accused to pay the said sum of money by way of a fine, with default sentence in the event she fails to make the said payment. Consequently, Accused was sentenced to imprisonment for non-payment of the fine.

After the accused was released from jail having served the sentence, plaintiff made application in the Magistrate’s Court, moving for an order directing the Accused to pay the money mentioned in the arbitral award. The Magistrate and the High Court judge refused to make an order requiring the accused to pay the sum on the basis the accused had already undergone a prison term for the non payment of the fine.

15. Sec.291 (2)16. Act No.05 of 1972

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Held: Hon. K. T.Chitrasiri, J.

• The intention of the legislature in amendingsection 59 of the Co-operative Societies Act by enacting theAct No.11 of 1992 is to pave the way to recover money awarded by an arbitrator even in the event an accused has undergone a prison term in default of payment of the fine imposed in lieu of sum of the award.

• In light of that court is bound to exercise itsdiscretion and to make order under section 291(2) to sell any movable property belonging to the accused although an order had been made to imprison the accused in default of the payment of a fine.

M. A. SURAMYA DAMAYANTHI PERERA V. HON. ATTORNEY GENERAL

COURT OF APPEALH.N.J.Perera, JA.H.M.D.Nawaz, JC.A.Case No:-320/2012H.C.Colombo Case NO:-237/01

Decided on 08 May 2015

Evaluation of Evidence: Pre-planned raid by Police: Corroborative evidence: section 134 of the Evidence Ordinance: Number of witnesses needed to prove a fact: Contradictions per se and inter se

The accused was arrested by a team of Police officers conducted a raid following information of drug related offence. The Accused was convicted of the indicted offences under section of the Opium and Dangerous Drugs Ordinance and sentenced for life based on the sole evidence of police officers who conducted the raid. It was contended that the trial Judge has arrived at the said conclusion without taking into consideration vital and glaring contradictions.

Held:

• Corroborationisrequiredanditisonlythenthedefense will have the opportunity to challenge the veracity and the credibility of the prosecution witnesses and get an opportunity to contradict the said witnesses.

• Inthistypeof casesthepoliceofficers,whoaretrained officers of state, are the main witnesses. Therefore the courts are duty bound to be careful in accepting and acting upon the evidence on face value alone.

Hon. H.N.J.Perera‘‘In fact as a matter of inveterate practice, more than cautiousness, especially in drug related offences, where raids are conducted by trained police officers, it is fair to require corroboration.’’ (Emphasis mine)

It was quoted with much approval following passage from Coomaraswamy’s Law of Evidence. ‘‘In the great many cases, the police agents are, as a rule unreliable witnesses. It is always in their interest to secure a conviction in the hope of getting a reward.’’

Writer’s Note: It is arguable whether the ratio in this judgment is in conflict with AG vs. Devunderage Nihalby Suresh Chandra J where SC held that there is no such requirement in law that the evidence of a Police officer who conducted an investigation or raid need to be corroborated.

WALPITAGAMAGE SAMIE V. WINIFRIDA NANAYAKKARA

COURT OF APPEALH.N.J.Perera, JC.A.Case NO:-194/99(F) D.C.Colombo Case No:-4084/ZL Decided on 27 May 2015

Ex party decree: Decree executed and possession handed over to Plaintiff: Ex parte decree vacated after inquiry: Order vacating ex parte decree silent with regard to possession: Duty of the Court to restore possession of

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a person dispossessed by a wrong order of the same court: ex meremotu

The deceased Plaintiff instituted action against the defendants for declaration of title and ejectment from the premises in suit. Ex-parte decree was entered against the said defendants and the possession of the premises delivered to plaintiff as the defendants had not filed papers to purge their default upon the service of the decree.

Pursuant to an application by the Defendant, ex parte decree was vacated by the same court without any order for the restoration of possession of the defendant, most likely due to an omission. The substituted plaintiff appealed against the said order to Court of Appeal, which was dismissed subsequently.

Thereafter the defendant filed another application in the District Court for the restoration of possession, which was allowed by the court after an inquiry. This appeal is against the said order made for the restoration of possession.

Held:

The same court which delivered the wrong order has inherent power to correct the wrong under section 839 of CPC. The ratio of SirinivasaThero17 Ariyananda V. Premachandra18 was applied in the present case.

FRANCIS SAMARAWICREMA V. HILDA JAYASINGHE

2009 - Volume 1, Page No - 293

Writer’s note:

All other cases in this note are unreported and recent except this case. However, in my humble opinion, the reported head note has not done justice to the importance of this exemplary judgment by Marsoof J, with concurrence of His Lordship Sarath N Silva CJ and Thilakawardena J. Hence, following important facts determined by the case at hand are reproduced below.

17. 63 NLR 31 18. 2000,2 SLR,218

Held:

• Standardof proof requiredinprovingfraudincivil case

“The more serious the allegation the higher the degree of probability that is required.”Denning, L.J. in Hornal v. Neuberger Products Ltd.19 and Bater v. Bater.20 It was held in the light of these decisions while the civil standard (preponderance of evidence) is generally applicable, the more serious the imputation, the stricter is the proof required. However, as a matter of rule, a lesser degree of proof than applicable in proving criminal offences is applicable in civil cases.

• TheModeof Proof of executionof documentrequired by law to be attested

It was decided that the notary is an attesting witness under s.68 of the Evidence Ordinance and is competent to prove the execution of the deed

• Quantum of Evidence needed in Proof of Document required by law to be attested when Fraud is alleged

In cases fraud is alleged against the notary, one or both attesting witnesses, provided they are living and able to testify, must be called to the witness box.

• DeclarationbyaNotaryintheAttestationClause

If notary was dead when the case went into trial, that he read over and explained the instructions to the executants would be prima facie evidence of the truth of that declaration. The ratio of Subramaniam v. Thanarase21 applied.

• Evidence Ordinance: Section 33: Discretion of the Court to admit Evidence under s.33

Court has discretion with respect to a witness whose presence in court cannot be obtained without an amount of delay or expense. Court has no discretion whatsoever in other situations, i.e. dead witness.

19. 1957(1)Q.B.258,20. (1951)P.35 at 3721. 61 NLR 355

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THAT I should not be grieved, O Athenians, at what has happened, namely, that you have condemned me, as well as many other circumstances concur in bringing to pass, and moreover this, that what has happened has not happened contrary to my expectations; but I much rather wonder at the number of votes on either side. For I did not expect that I should be condemned by so small a number, but by a large majority; but now, as it seems, if only three more votes had changed sides I should have been acquitted. As far as Miletus is concerned, as it appears to me, I have been already acquitted, and not only have I been acquitted, but it is clear to everyone that had not Anytus and Lycon come forward to accuse me, he would have been fined a thousand drachmas, for not having obtained a fifth part of the votes.

The man then awards me the penalty of death. Well. But what shall I, on my part, O Athenians, award myself ? Is it not clear that it will be such as I deserve? What then is that? Do I deserve to suffer or to pay a fine, for that I

have purposely during my life not remained quiet, but, neglecting what most men seek after,—money-making, domestic concerns, military command, popular oratory, and moreover all the magistracies, conspiracies and cabals that are met with in the city,—thinking that I was in reality too upright a man to be safe if I took part in such things, I therefore did not apply myself to those pursuits, by attending to which I should have been of no service either to you or to myself; but in order to confer the greatest benefit on each of you privately, as I affirm, I thereupon applied myself to that object, endeavoring to persuade every one of you not to take any care of his own affairs, before he had taken care of himself, in what way he may become the best and wisest, nor of the affairs of the city before he took care of the city itself, and that he should attend to other things in the same manner

What treatment then do I deserve, seeing I am such a man? Some reward, O Athenians, if at least I am to be

ON BEING DECLARED GUILTY Socrates (469–399 B.C.)

Born about 469 B.C., died in 399; for a time followed his father’s art as a sculptor; served in three campaigns; President of the Pyrtanes in 406 and opposed the Thirty Tyrants; his philosophical precepts, as those of the wisest man of his time, known to us only in the writings of his disciple, Plato. After a majority of voices had declared him guilty, Socrates resumed his address as reported by Plato in the “Apology”.

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estimated according to my real deserts; and moreover such a reward as would be suitable to me. What then is suitable to a poor man, a benefactor, and who has need of leisure in order to give you good advice? There is nothing so suitable, O Athenians, as that such a man should be maintained in the Prytaneum, and this much more than if one of you had been victorious at the Olympic games in a horse race, or in the two or four-horsed chariot race; for such a one makes you appear to be happy, but I, to be so: and he does not need support, but I do. If, therefore, I must award a sentence according to my just deserts, I award this, maintenance in the Prytaneum.

Perhaps, however, in speaking to you thus, I appear to you to speak in the same presumptuous manner as I did respecting commiseration and entreaties: but such is not the ease, O Athenians, it is rather this. I am persuaded that I never designedly injured any man, tho I can not persuade you of this, for we have conversed with each other but for a short time. For if there was the same law with you as with other men, that in capital cases the trial should last not only one day but many, I think you would be persuaded; but it is not easy in a short time to do away with great calumnies.

Being persuaded then that I have injured no one, I am far from intending to injure myself, and of pronouncing against myself that I am deserving of punishment, and from awarding myself anything of the kind. Through fear of what? lest I should suffer that which Miletus awards me, of which I say I know not whether it be good or evil? instead of this, shall I choose what I well know to be evil, and award that? Shall I choose imprisonment? And why should I live in prison, a slave to the established magistracy, the Eleven? Shall I choose a fine, and to be imprisoned until I have paid it? But this is the same as that which I just now mentioned, for I have not money to pay it. Shall I then award myself exile? For perhaps you would consent to this award. I should indeed be very fond of life, O Athenians, if I

were so devoid of reason as not to be able to reflect that you, who are my fellow citizens, have been unable to endure my manner of life and discourses, but they have become so burdensome and odious to you, that you now seek to be rid of them; others, however, will easily bear them; far from it, O Athenians. A fine life it would be for me at my age to go out wandering and driven from city to city, and so to live. For I well know that, wherever I may go, the youth will listen to me when I speak, as they do here. And if I repulse them they will themselves drive me out, persuading the elders; and if I do not repulse them, their fathers and kindred will banish me on their account.

Perhaps, however, some one will say, Can you not, Socrates, when you have gone from us, live a silent and quiet life? This is the most difficult thing of all to persuade some of you. For if I say that that would be to disobey the deity, and that therefore it is impossible for me to live quietly, you would not believe me, thinking I spoke ironically. If, on the other hand, I say that this is the greatest good to man, to discourse daily on virtue, and other things which you have heard me discussing, examining both myself and others, but that a life without investigation is not worth living for, still less would you believe me if I said this. Such, however, is the case, as I affirm, O Athenians, tho it is not easy to persuade you. And at the same time I am not accustomed to think myself deserving of any ill.

If, indeed I were rich, I would amerce myself in such a sum as I should be able to pay; for then I should have suffered no harm, but now—for I can not, unless you are willing to amerce me in such a sum as I am able to pay. But perhaps I could pay you a mina of silver; in that sum then I amerce myself. But Plato here, O Athenians, and Crito, Critobulus, and Apollodorus bid me amerce myself in thirty minæ, and they offer to be sureties. I amerce myself then to you in that sum; and they will be sufficient sureties for the money.

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‘Quia timet’ (because he fears/apprehends) -BEYOND LAND DISPUTES..?

Chinthaka Srinath Gunasekara, L.LB/LL.M (Colombo)District Judge|Welimada.

Quia timet is an action where a party can seek equitable injunctive relief preventing future harm to a specific right. In another words,

any party can invoke this civil action prior to the actual harm occurs. It is a declaratory decree issued to prevent a substantial damage. There is a misunderstanding among some that quia timet is an action pertaining to land disputes. The reason may be that most court cases based on quia timet are land matters.

Purpose of this article is to identify the scope and limits of quia timet action with a reference to some foreign and Sri Lankan judgments, since it still remain as a part of our law. In another words quia timet is an injunction to restrain wrongful acts which are threatened or imminent but have not commenced yet. “quia timet” is Latin for “because he or she fears”.

It is not a secret that the Roman Dutch law, much influenced by the English law, is the common law here. Common law remedies are basically formed with monetary redresses. When monetary remedies are not adequate and not a remedy to the cause of civil actions, injunctions play a vital role. Injunctions are introduced under the equity principles of the English law. There is no doubt that action quia timet is maintainable in Sri Lanka.1 Several Sri Lankan judgments have enumerated the scope of the said action in many occasions. In the recent case of Geekiyanage Thanuja sanjeewani and Others vs Geekiyanage Nirosha Prasadini and another2, The Supreme Court of Sri Lanka held that,1. Prof. G. L. Pieiris, The Law of Property in Sri Lanka,

vol. I, p.3792. SC (HCCA)LA No.346/2013, decided on 31.03.2015, per

Priyasath Dep, PC,J

“The change of circumstances, emergence of new grounds as a result of committing or threatening to commit acts or nuisance entitle a party to invoke the jurisdiction of the same court in spite of the previous refusal and the court has jurisdiction to entertain such application. These actions are referred to as quia timet actions incidental to the main actions.”3

Then it is evident that even in Sri Lanka quia timet is accepted for any type of causes of action subjected to where no specific remedy avail. An injunction could have been granted at any stage of a case.4 Then it is evident that quia timet actions could be invoked incidentally as well as separate actions to prevent future irreparable harm where the infringed right could not be recovered through money.

The requisitions are revealed in the English case of Fletcher vs Bealey5 which is considered as a one of foundation cases based on quai timet action. Facts of the case in a nutshell;

The plaintiff is a paper manufacturer drawing water from the river. The defendant is up river who stores vat wastes that could potentially ooze out into the river which would cause problems relating to the quality of the plaintiff ’s paper. Plaintiff is seeking a remedy ensuring that the vat waste does not leach into the river. Defendant is leasing the land and the lease is closer to expiration. The

3. At page 7, (emphasis added by me)4. Kalinga Indatissa, The Law of Injunctions, 2006 p.35. 1885 28Ch.D 688 (Chancery Division UK)

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Court realizes that here is an absence of current harm so it adds an opportunity to show proof of imminent harm and proof that the apprehended damage would be substantial when it comes.

The principle from the above case is, in the absence of actual damages a quia timet injunction will only be granted if proof is made that the damage is immediate.6

In the case of Hooper vs Rogers7 plaintiff received damages instead of quia timet. Reason is that a primary condition of maintainability of quia timet action is that no alternative remedy is available. This has been accepted in the Sri Lankan case Fernando vs Fernando8

by Ennis (ACJ), with Sampayo J, since the plaintiff had an immediate and adequate remedy in a partition action. Further, another restriction has been revealed in the case of Palmer vs Nova Scotia forest Industries9 by the Supreme Court of Nova Scotia.10 Facts of this case in brief are;

The plaintiffs filed for a quia timet injunction asking the court to restrain the defendants from spraying dioxin near their homes. But action failed. The reason was the risk to health, if proven would have constituted irreparable harm in this case and injunction would have been an appropriate remedy to subdue that risk. However, Justice Nunn did not find that the plaintiffs established an imminent danger to their health.

Isenberg vs East India House Estate11 is another English case in which principles for quia timet enumerated thus,12

1. The plaintiff must show a strong probability that he will suffer grave damage in the future. This is a restraining principle.

2. If damages were to occur, compensation will not be sufficient or adequate to remedy the situation.

6. Prof. Stephen Smith, 2007, www.Isa.mcgill.ca7. 1975 Court of Appeal UK8. (1919)21 NLR 1589. 1984 NSTD/ Nova Scotia Supreme Court, Canada10. a Province of Canada11. 1863(3) De G.J & S 26312. Remedies, Joshua Krane, www.lsa.mcgill.ca

3. When the defendant has acted unreasonably the court may order the defendant to restore the status quo and expense his profits from his unreasonable behavior.

4. The defendant must know exactly what he has to do to carry out the order.

The patents court in UK recently in the case Merck sharp Dohme Corp and Bristol-Myers squibb pharmaceuticals Limited vs Teva Pharma BV13, a quia timet injunction was granted to stop threatened and intended patent infringement.

Justice Birss of high Court of Chancery Division Patent court has concluded his Judgment stating that;

“I find that this action was justified. I should grant an injunction to restrain Teva from infringing the patent and SPC. This injunction is not an interim one. It is permanent in the sense that it remains while the patent and the SPC are in force and will expire with the expiry of the SPC.” 14

Even in India, judges have given a broad interpretation to the quia timet injunction, In the case of High Court of Judicature vs Bsa-Regal Group Ltd.15 (Reported on 30.10.2012).

“It would be wrong understanding of the law to state that infringement can be prohibited only when the torts are perfected. The principle of quia timet is not only confined to the trade mark infringements as propounded by the learned counsel for the defendants. The said submission is also misplaced and rejected as meritless. The principle of quia timet is applicable to any tortuous liability wherever there is an apprehension of infringement likely to happen. This can be seen even in the cases of trespass where the injunctions are sought even when there is threat of invasion in the property of some one.”16

13. 2013 EWHC 1958(pat), www.pillsburylaw.com14. www.Bailii.org15. In the High Court of Judicature, Madras, www.

indiankanoon.org16. per JusticeK.Chandru (emphasis added)

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The power of jurisdiction has been given to the District courts of Sri Lanka for granting injunctions under the Judicature Act of 2 of 1978. Prior to that, The Administration of Justice Law No. 44 of 1973(amended) and The Civil Procedure Code made provisions for granting injunctions.

As at now there is only one High Court designated to hear the civil Jurisdiction conferred by Act No. 10 0f 1996.17 That is the High Court in the Western province as declared by the gazette No.943/12 of 01.10.1996. In view of the changes introduced by Act No. 10 of 1996, the Provincial High Court established under the 13th amendment to the constitution and declared as a court exercising civil jurisdiction, will also have the power to grant injunctions.18 Article 143 of the constitution empowered The Court of Appeal of Sri Lanka to grant Injunctions. But no inherent power on the court since the power has limited to the extent set out in section 143.19

It is noteworthy that though such statutory provisions avail on injunctions, it is discretionary power vested with competent courts to grant them subjected to the circumstances depending on each and every case. Let us see, how Sri Lankan Courts have looked /accepted the quia timet.

In the case of De Silva vs Dheerananda Thero,20 it was held that the trustee of a Buddhist temple may maintain an action quia timet to set aside a deed by which a priest, claiming by virtue of papillary succession, transferred land belonging to the temple even though the trustee’s enjoyment of the land has not been interfered with. Further, in the case The Ceylon Land and Produce CO., LTD. v. Malcolmson21 it was held that where a person takes a mortgage of a land belonging to another from a third party and puts such mortgage in suit and obtains decree thereon, the true owner has a sufficient cause of

17. High Court Of the Provinces (special Provisions) Act.18. Kalinga Indatissa, The Law of Injunctions, 2006, p.12,1319. Ibid.@ p.75,7720. 28 NLR 257,21. 12 NLR 16

action against such person to maintain an action quia timet.Woodrenton J. has further stated that,

“It is indisputable that an action quia timet is maintainable in Ceylon. Sir John Phear says in Fernando v. Silva, and there are many later decisions to the same effect. In regard to the circumstances under which such actions are maintainable, following passage occurs in the judgment of Phear C. J. in Fernando v. Silva. If nothing has yet happened to prevent, or to interfere with, the plaintiff ’s present enjoyment of his property, where no cause has yet occurred to render it necessary for him to have actual recourse to a Court of Justice for remedy, yet it may sometimes be right that he should be afforded an opportunity of making use of that evidence which, he has at hand to establish title against a person who only threatens and does not yet disturb it. It is, however, only in a case of this kind that a suit should be entertained quia timet, as the old English phrase is. “I cannot think that in this passage Sir John Phear could have meant to hold that under no other circumstances would an action quia timet lie in Ceylon.22”

Selvam vs Kuddipillai23 is another important case in this regard. The Graetian J was of the view that,

“An owner of immovable property is entitled to enjoy it without disturbance and without fear of unjustifiable interference from outsiders. If his enjoyment is disturbed by forcible ouster, the remedies of a Rei vindicatio action or (in appropriate cases) of a possessory action are available to him ; if it is seriously threatened, he may demand in quia timet proceedings a declaration of his rights so as to prevent in anticipation the apprehended invasion of his rights of ownership.”

Facts of the case were that the plaintiff, who claimed to be the owner of certain immovable property, alleged

22. Per woodrenton J23. 55 NLR 426

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that the defendants, disputing his claim to be the sole owner, wanted him to pay them the value of their share of the property. He has instituted the present action claiming a declaration that he was the sole owner of the property. He admitted that, notwithstanding the dispute as to title, he had continued to possess the property and enjoy its produce exclusively. The trial judge dismissed the action on the ground that it was premature. But in the appeal it was further held that the plaintiff had a “cause of action” within the meaning of section 5 of the Civil Procedure Code and was, therefore, entitled to maintain the action.

Under the section 24 of the Interpretation Ordinance (as amended in 1972) an injunction or enjoining order (may be interim injunctions also) could not be granted against the state. Prior to that Crown had no immunity. In the case of The Attorney-General, (Appellant) vs Sabaratnam (Respondent)24 it was held that,

“A party who has a concrete dispute with another may obtain in anticipation a declaration by Court that his opponent does not have a good cause of action against him. The jurisdiction of Court to grant a declaratory decree is, of course, discretionary, and would not be exercised for the purpose of making premature pronouncements as to future contingent rights of litigants.”

‘‘The Crown enjoys no special immunity from declaratory decrees in cases where they would be appropriate in actions between private litigants.”

“The plaintiff, when he was a Public Works Department overseer, had been called upon by the Director of Public Works to refund a certain sum of money which was alleged to have been over-paid to him. Plaintiff denied that there-had been any over-payment, but the Director persisted in his claim for a refund. Even after he retired from the public service, the government refused to withdraw its claim for a refund and, the plaintiff

24. 57 NLR 481

alleged, was withholding payment of arrears of salary and pension due to him. He instituted the present action asking for a formal declaration in his favor that, inter alia, he was not liable to refund any sum of money.”

Further held that the action quia timet maintainable.

One of the land mark cases pertaining to injunction is Felix Dias Bandaranayake vs State Film Corporation25

which is cited even today as an authority and also very important about the quia timet action. Justice Soza has cited following comments in this regard.

The plaintiff is a former Minister of Justice. He held, apart from the portfolio of Justice, a number of other portfolios including Finance and Public Administration. He has been in active politics for several years and since the year 1960 was a Member of the House of Representatives and, after the Constitution of 1972 was promulgated, of the National State Assembly. Throughout his political career he has been a member of the Sri Lanka Freedom Party and a Cabinet Minister when Mrs. Sirimavo Dias Bandaranaike was the Prime Minister. At the General Elections of 1977 however he suffered his first setback in politics when he failed to secure election.

The plaintiff complains in paragraph 5 of his plaint filed on 26.5.1980 that in or about March 1980 he became aware that the defendant State Film Corporation was intending to release for public exhibition a film entitled “Sagarayak Meda” which was defamatory of him in that

(a) The Minister of Justice portrayed as a character in the film was intended to refer to and represent him and was likely to be identified with him by members of the public who saw the film.

(b) The person playing the role of the Minister in the film was portrayed as a dishonorable person given to abusing and misusing his official position and authority for personal ends and as an untrustworthy and contemptible character.

25. 1981 (2) SLR 287

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The particular incidents and episodes in the film and the film as a whole were calculated to bring him to contempt and hatred and to cause serious injury and damage to his reputation. In paragraph 8 the plaintiff avers that the Minister of Justice in the film was shown in various episodes as one who used his official position and authority for private ends by directing the Bribery Commissioner in an unlawful manner in respect of a pending prosecution for bribery and as one who was deceitful and untrustworthy and as one who interfered with the work of the Bribery Commissioner to such an extent that official was driven to resign in protest. In paragraph 10 the plaintiff pleads that the alleged incidents and episodes concerning him in the film both false and defamatory and were calculated to expose him to odium and obloquy and cause irreparable damage to his reputation and political future. The plaintiff therefore prays in his plaint for a permanent injunction restraining the defendant, its servants and agents and all persons acting under its authority from-

(a) releasing the film “Sagarayak Meda” for exhibition or showing to the public at any cinema, theatre or other public place, or to any persons in private, and,

(b) exhibiting, showing, screening or otherwise publishing the said film at any public or private performance otherwise than under any statutory power or authority.

He also prays for an interim injunction in the same terms.The matter of the application for an interim injunction came up for inquiry before the learned District Judge on 27.1.1981 until which date the operation of the enjoining order had, from time to time been extended. After hearing the parties the learned District Judge

refused the application for interim injunction and dissolved the enjoining order.

Under the Civil Procedure Code only two types of procedure contemplated for actions in Court - regular procedure and summary procedure. The Code defines an action as a proceeding the prevention or redress of a wrong. Every application made to the Court for relief or remedy obtainable through the exercise of the Court’s power or authority or otherwise to invite its interference constitutes an action. There can even be an action within an action as Bertram C. J. held in the case of Subramaniam Chetty v. Soysa. Hence the application for an injunction is an action.26

One of the principal difficulties in dealing with this case is that we do not know what the

film when finally exhibited will contain. We do not know exactly what particular’

scenes and sequences, episodes and incidents will be portrayed nor how much of it will be fact and how much comment; nor indeed the nature of such fact and comment. Despite this ignorance, we have to deal with

the plaintiff ’s application for an interim injunction as best we can. The application is, it is well to remember, for an injunction quia

timet.27

It is necessary first of all to have a clear picture of the legal principles that are applicable to the question before us. The jurisdictional provisions have already been noted. This is an action instituted in the District Court and the application for an interim injunction was made at the time the plaint was filed. So section 54(1) (a) and (i) of the Judicature Act No. 2 of 1978 and sections 662 and 664 of the Civil Procedure Code apply. If it appears from the plaint that the plaintiff demands and is entitled to a judgment against the defendants,

26. Emphasis added by me.27. Emphasis added.

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restraining the commission of an act or nuisance, which would produce injury to him the Court may, on its appearing by the affidavit of the plaintiff or any other person (and that would include the defendants as I have already pointed out) that sufficient grounds exist therefore, grant an interim injunction restraining the defendants from committing any such act or nuisance. The plaintiff must therefore have a clear legal right which is being infringed or about to be infringed.

If a prima facie case has been made out, we go on and consider where the balance of convenience lies Yakkaduwe Sri Pragnarama Thero v. The Minister of Education. This is tested out by weighing the injury which the defendant will suffer if the injunction is granted and he should ultimately turn out to be the victor against the injury which the plaintiff will sustain if the injunction were refused and he should ultimately turn out to be the victor. The main factor here is the extent of the uncompensatable disadvantage or irreparable damage to either party. As the object of issuing an interim injunction is to preserve the property in dispute in status quo the injunction should not be refused if it will result in the plaintiff being cheated of his lawful rights or practically decide the case in the defendant’s favor and thus make the plaintiff ’s eventual success in the suit if he achieves it a barren and worthless victory.

Lastly as the injunction is an equitable relief granted in the discretion of the Court, the conduct and dealings of the parties (Ceylon Hotels Corporation v Jayatunga) and the circumstances of the case are relevant. Has the applicant come into Court with clean hands? see Duchess of Argyll v Duke of Argyll.

Has his conduct been such as to constitute acquiescence in the violation of infringement of his rights as the Court of Appeal in England found in Monson v Tussauds Limited or waiver of his rights to the injunction? Is it proper or necessary to issue an injunction as, for example, when there is very little prospect of the film

being exhibited in the near future? Row’s Treatise on the Law of Injunctions 3rd Ed. Vol. 1 p. 166 and Halsbury’s Law of England 4th Ed. Vol. 24 p. 552 paragraph 984. These are germane questions when the Court is called upon to exercise its discretion to grant an equitable remedy such as injunction. In Fletcher v Bealey28 the guidelines that should be followed by a Court when dealing with an application for an injunction quia timet when infringement of the plaintiff ’s rights is only apprehended were succinctly laid down by Pearson, J. who said as follows at page 698:

“I do not think, therefore, that I shall be very far wrong if I lay it down that there are at least two necessary ingredients for a quia timet action. There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial. I should almost say it must be proved that it will be irreparable, because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed, the damage will be suffered, I think it must be shown that, if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the plaintiff to protect himself against it if relief is denied to him in a quia timet action.”29

“In the instant case the plaintiff is complaining about scenes and episodes in a film he has not seen. Apparently he is going on what others have told him. He is anxious to see the film himself to pick out what is defamatory of him. There are no affidavits before the Court of what the film contains from persons who have seen it screened. In any event the exhibition of the film is a long way off. In these circumstances too an interim injunction cannot issue.30’’

28. Previously mentioned.29. Per Soza J. @ p.301 to 30430. @ p.313

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The requisites of a quia timet action have been properly discussed under the circumstances with the facts of the case. This judgment is a turning point in our legal system. This is a good example for the extension of quia timet up to the area of Delictual liability. Any way Plaintiff has the burden of proving the required elements.

Arlis Appuhamy vs Kahavidane31 is another important judgment delivered after the enactment of Judicature Act. Facts in brief is as follows,

The plaintiff complained that the defendant had commenced construction of a bakery and hotel very close to her residence and that the establishment of such bakery and hotel would cause a nuisance. The action was in the nature of a quia timet action. A permanent injunction was also sought. It was held that by Hon G.P.S. De Silva J.,

“The noise, smell and smoke from running a bakery would constitute a nuisance and cause discomfort and injury to health. The action was quia timet in character and not based, on a nuisance which existed but an apprehended nuisance. However for this reason the action is not misconceived.”

In a quia timet suit the plaintiff must show a strong case of probability that the apprehended mischief will, in fact, arise. If there is evidence that the plaintiff ’s fears in regard to a threatened nuisance are not imaginary but well founded and reasonable, a court would be entitled to grant a declaration and an injunction, in appropriate circumstances.

Although at the stage of the institution of the action, the defendant had only commenced the construction of the building, which was used as a bakery and hotel, the evidence led at the trial establishing the existence of the nuisance is

31. 1983 (2) SLR 493

relevant because this evidence was clear that the smoke and noise emanating from the bakery caused inconvenience to the plaintiff and was injurious to her health. These facts are very relevant to show that the apprehension entertained by the plaintiff at the date of the institution of the action; was justified and her fears were well founded.

It seems that plaintiff succeeded the quia timet action.

In the case of Raki vs Casie Lebbe32, the first defendant on a writ, against the second defendant caused the fiscal to seize and sell the land in dispute as a land belonging to the second defendant, and bought it himself. The plaintiffs are claiming the land, as they brought the present action for declaration of title against the two defendants.

In this case the first defendant, as judgment-creditor of the second defendant, seized and sold in execution certain lands as the property of the second defendant, which the plaintiffs seek to vindicate in this action. The sale was not confirmed, nor the fiscal’s conveyance issued to the first defendant who was the purchaser.

The first issue settled was whether the plaint disclosed a cause of action, and upon that issue, and on the ground that the plaintiffs had no present cause of action, the District Judge dismissed the plaintiffs’ action, holding on the authority of Fernando v. Silva et al. that the plaintiffs had misconceived their action, and should have proceeded under section 247 of the Civil Procedure Code.

The plaintiffs appealed, and for them it was argued that the plaint disclosed there was a seizure and sale of their property by the first defendant, which amounted to a denial of their right, and gave them a cause of action under section 5 of the Civil Procedure Code. Middleton J. was of the view that,

“Ismail Lebbe v. Omer Lebbe decided that a seizure by the Fiscal amounted in law to dispossession.

32. 14 NLR 441

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Further, that the plaint showed that there was a real ground for apprehension of prospective injury by estoppel, and that the action would lie quia timet.33”

It is clear that the requirements to properly grant such injunction are,

1. Legal cause of action,

2. Proof of an irreparable harm.

3. Proof of imminent danger

4. Action should not be premature

5. Proof that apprehended damage will be substantial.34

Nowadays quia timet action appears to be almost abandoned as a result of recent development of the law of injunctions.35 But it could be used in many ways. Traditionally the quia timet injunction was only available in relation to equitable rights, but is now seemingly available in respect of all matters by virtue of the injunctions provisions of legislation implementing the judicature systems.36 Considering the rapid development of Commercial Law, Law of Intellectual Property affiliated with International Trade Law and Environmental Law with present globalization, quia timet is still very important. Indeed, It is still available for utilization as a preventive action in proper cases in addition to land disputes.

33. Emphasis added by me.34. Prof.Berryman, Remedies, 4th edition, www.web2.

uwindsor.ca35. Wijedasa Rajapakshe, The law of Property ,Vol.III, p.39136. Equitable Remedies, By Associate Prof. Cameron Stewart,

Sydney.edu.au

An English protest chant, around 1600, to object against the British Monarchy’s habit of building fences around and on land previously owned to the public as common land.

The law demands that we atoneWhen we take things we do not own.But leaves the lords and ladies fine Who take things that are yours and mine.

The poor and wretched don’t escape If they conspire the law to break. This must be so but they endure Those who conspire to make the law.

The law locks up the man or woman, Who steals the goose from off the common. And geese will still a common lack Till they go and steal it back.

Who Steals The Goose From Off The Common

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Rajindra Jayasuriya | LLM ColomboMagistrate| Balapitiya

The presumption of innocence unless proven otherwise, can only be rebutted by the prosecution proving the case against the accused beyond reasonable doubt. However, after the conclusion of the prosecution’s case, if the judge is of the view that a prima facie case is presented against an accused in a criminal trial, he should call for the defence. Then an accused person can give evidence from the witness box and call other witnesses on behalf of himself and remain silent to the charges against him/her or Make an unsworn statement from the Dock. Such statement made from the Dock is called a “Dock Statement”.

As a Dock Statement is unsworn and not subject to cross examination, it’s credibility is often questioned. These characteristics of Dock Statement have given an opportunity for the accused to lie with impunity. The right has often been abused in practice; for example by being used to introduce inflammatory or otherwise inadmissible materials causing great injustice to the prosecution. Although the fact that a statement made from the dock is unsworn and not subject to cross examination undoubtedly affect the weight which could properly be attached to such statement, yet, a judge is duty bound to consider the same in the judgment subject to the aforesaid infirmities under our legal system.

The right to a Dock Statement has been habitually

Right of an accused person To make an unsworn statement From the dock under Sri Lankan Legal System

or otherwise used for many centuries and now it has become an inveterate practice of the courts of criminal Jurisdiction in the country. Hence it is important to find out how this concept has been introduced to our legal system.

Has the Dock Statement been recognized by statute/ written laws in the country?

The Code of Criminal Procedure Code Act no 15 of 1979 sets out the procedure in respect of criminal matters in general. In a summary trial before a magistrate an accused person can give evidence if he desires or call other witnesses on behalf of himself under Section 184 of the said code. Similarly, in a Non- Jury and a Jury trial before High court, after the conclusion of the prosecution’s case, if a prima facie case is presented, the accused should be called for defence under sections 200 and 220. Further Sec. 201(2) (in a Non-Jury trial) and Section 221(2) (in a Jury trial) states that the prosecution has the right to cross examine all the witnesses called by the defence. However, a close study of the said code shows that there is no provision which expressly refers to a right of a Dock Statement.

However, section 151 of the said code states, that the magistrate must give an opportunity to an accused to reply to the charges against him/her, if desires, after the

34


closure of the prosecution’s case in a Non – Summary inquiry. Such statement should be properly recorded by a magistrate and is submitted later by the prosecution as evidence under section 219 of the Criminal Procedure code in the High Court as a “statutory statement”. Such a statement is made without an oath and also it cannot be subjected to any questioning even by the Judge. Therefore, it shows that the above section implies a Dock Statement indirectly.

Section 120(6) of the Evidence Ordinance recognize an accused person as a competent witness to give evidence on behalf of himself, however, it does not contain a provision or clause which recognize the right of an accused person to make an unsworn statement from the dock expressly or impliedly.

Hence, it is clear that there is no provision for an accused person to make a Dock Statement in the courts of criminal jurisdiction of the this country except in a preliminary (Non Summary) inquiry before a Magistrate.

Dock Statement; An irretrievably entrenched practice in our legal system

Although our procedural laws are silent on the right of a Dock Statement, The said concept has somehow found its way in to the legal system of the country and now been admissible in evidence even today. It is clear that it must have gained its recognition by practice.

In the year of 1918, the evidential value of an unsworn statement was first discussed in the landmark case, The king Vs Vallayan Sittambaram (20 N.L.R 257). In this case the accuser’s request to make an unsworn statement from the Dock was refused by the trial judge on the basis that there is no legal provision for the same to be allowed. However the Court of Criminal Appeal took a different view and held that refusing to give an opportunity to the accused to make an unsworn statement at the trial itself is an irregularity causing failure in justice. Further, it was held that since the law is silent in the

subject, it must be regarded as a “Casus Ommisus” as per section 6 of the old criminal procedure Act and therefore should have recourse to English Law. Since the English Law was clear on the subject of law, it was held that the English Law should be followed. Hence, the Dock Statement received the legal recognition it was lacking not by statute but by interpretation of law by our superior courts.

After the aforesaid landmark judgment, there were several other important judgments that discussed the evidentiary value of Dock Statements. The Queen v. Mapitigama Buddharakkita Thera and 2 others (63 N.L.R 433) and Rex vs. Kularatne [(1968) 71 N.L.R 529], Srilal DeSilva and Another Vs The Republic of Sri Lanka [(1988) 1 Sri L.R 299], Gangananda vs. The State [(1995) 2 Sri L.R 373], Ahelepola Vs O.I.C Police Station, Kandy and Another [(1998) 1 SLR 295] are some important judgments among them.

As the concept of Dock Statement was introduced to our legal system by recourse to English law principles, it is significant to find out the legal stance for the dock statement has received from England.

History of the Right to a Dock statement in England

In the early days of England an Accused person was placed at a very unfair state in a court of law. An accused was not protected by right to a fair trial or right to representation by counsel. They were convicted solely on their confessions which were taken out by inflicting pain on them by various methods. This Unfair state of law later led to the concept that no person should be convicted on one’s own confession. Hence, English courts decided that an accused is not competent to give evidence in a court of law as there was a possibility of the accused admitting to the commission of the offence by threat or otherwise. This created a legal bar for an accused to give evidence in a court of law even if he desired to. However, severe criticism on the subject led the courts to consider giving an accused a right to give

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evidence for one’s own defence. Hence, the English courts then introduced a right of an accused to make an unsworn statement from the dock.

Although by the Criminal Evidence Act of 1898, incompetence of an accused as a witness was removed, However by the proviso to the section 1(H) of the said act the Dock statement which was only in the practice for so long has been given legality and was accepted as evidence.

From the stand point of policy, it would appear that the dock statements did not lose its recognition even after the accused was given acknowledgment as a competent witness to testify on his own behalf. It might well have been thought that, once the law recognized the accused as a competent witness, if he wishes to avail himself of the right to make any statement about the relevant events to the proceedings, the accused like any other witness should give evidence on oath from the witness box. Many were under the impression that a further right to make an unsworn statement from the dock led to a conflict in policies. The merits and demerits of Dock statement was often under debate in England and the right to a Dock statement which at first was used as an inveterate custom and later was given recognition by statute was finally abolished from the English legal system by the Criminal Justice Act of 1982. Thus, since the concept of Dock statement originated from English law and was introduced to our country by recourse to English law principles when there was no statutory provision enabling such concept in Sri Lanka, the question now is whether it’s justifiable that we keep using it as an inveterate practice when England itself has abolished the same as unreasonable and not in the interests of justice.

Admissibility of Dock Statement as evidence in Sri Lanka

As per discussed, in The king Vs Vallayan Sittambaram (20 N.L.R 257), as there were no written provision in

respect of an unsworn statement to be found in our law of evidence or procedure, our Superior courts took the view that it was an ideal situation to have recourse to the English Law. The Code of Criminal procedure Act No 15 of 1898 which was in effect before the current Code of Criminal Procedure (Act No 15 of 1979) contains provision that gives our courts recourse to English Law when the Act is silent on a particular question (Section 6). However, the Code of Criminal Procedure Act No 15 of 1979 does not carry any provision similar to section 6 of the earlier code. According to Section 7 of the current code of Criminal Procedure, where the code is silent on a particular issue, our courts have the discretion to follow reasonable procedure to uphold justice as long as it does not contradict any provisions of the said code. Thus, one can argue that under the Code of Criminal Procedure Act No 15 of 1979 our courts are no more bound to follow the English law principles on issue where the code is silent. Therefore, though it was decided that the right to make a Dock Statement should be given recognition as it was accepted in England, the question is whether we should still follow the rule set in the said judgment even after the implementation of the Code of Criminal Procedure of 1979.

On the other hand, Section 100 of the evidence Ordinance No 14 of 1895 also has importance in this subject. Though the procedural laws have changed to discontinue any connection with the English Law, the law of evidence has not being altered in the area. Section 100 of the Evidence Ordinance still gives recourse to English Law principles where there is an oversight in our law in respect of evidence. However, one should not forget that the laws in relation to Dock Statements have being abolished in England for quite some time now and a right to a Dock Statement is no more allowed in the English Courts. Equally, if we are to follow English law principles under section 100 of the Evidence Ordinance, one shouldn’t forget that there is no principle of law in England that allows an accused person to make an unsworn statement from the Dock.

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inadmissible. In addition, opinions can only be given by a witness who is expertise on a particular field. As an accused is free to say anything he likes without any interruption from anyone as long as he desires to when making a Dock Statement these restrictions imposed under section 60 of the evidence Ordinance can easily be violated.

Though a judge can disregard the non relevant facts and hearsay evidence in the judgment, such statement can change the mindset of the judge and create a doubt in the judge’s mind regarding the case of the prosecution. The situation can be even worse before a jury. Consequently, a dock statement can do immense damage to the prosecution at the last stage of a trial, a damage that could have been corrected if they could only cross examine the witness on the truth of his statement. This whole concept Dock Statement, therefore, can lead the entire mechanism of finding the truth in to astray and lead to a failure in justice. This will affect the society at large as people will ultimately lose their faith in the rule of law.

Should the Dock Statement be retained?

This concept of Dock Statement may have been useful historically, but it is no longer necessary and, notwithstanding the judicial direction referred to, it gives great advantage to the accused. Even If the said right is abolished the accused would not be compelled to give evidance as he will still be protected by the right to remain silent. He could still refrain from giving evidence. The right to make an unsworn statement, however, gives him the great and unjustified advantage of having it both ways. It permits him both to say something and yet not to answer questions to test what he says.

After a close scrutiny of our Code of Criminal Procedure and The Evidence Ordinance, one can argue that the legislature never intended to make the right of Dock Statement legal.

Is the right to a Dock Statement violates any provision of Statute/Written laws in the country?

As discussed earlier, an accused has been acknowledged as a competent witness by section 120(6) of the Evidence ordinance. The said section further states that accused may give evidence in the same manner and with the like effect and consequences as any other witness. One can argue that the legislature by this section intended the accused to testify subject to cross examination as any other witness.

On the other hand, as per section 4(1) of the Oath and Affirmation Ordinance, No 9 of 1895, all witnesses who gives or be required to give evidence before any court shall first make an oath. Accordingly, as an accused is a competent witness, he should give evidence under an oath for such evidence to be considered by court. In this sense, can an unsworn statement from the dock be considered or accepted as evidence? The Oath and Affirmation Ordinance was enforced prior to the implementation of the Evidence Ordinance, and therefore if the legislature desired that the accused should be given immunity from the aforesaid section of the Oath and Affirmation Ordinance, they would have included a section doing so in the evidence Ordinance. Since no such section can be found, it seems that the legislature has intentionally evaded that opportunity. As per the provisions of this act a Dock statement can be called as a clear violation of the statutory requirements necessitated by law.

According to section 138 of the evidence ordinance the adverse party has right to cross examination. However, in an instance where the accused uses his right to make a dock statement, the adverse party is being deprived from this Statutory right.

Further, section 60 of the Evidence Ordinance states, a witness whose giving evidence in a court of law should only refer to the fact which they have either seen, heard or perceived by any other sense. Hearsay evidence is

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Further, as per discussed, it clearly violates certain provisions of The Code of Criminal Procedure, Evidence Ordinance and Oath and Affirmation Ordinance.

The concept was introduced when the accused person was not given a fair trial or representation by counsel. However, laws have been changed now for the better and we clearly have provisions under our law which protects the rights that was deprived from an accused person before. An Accused is at a disadvantage when he is exposed to give evidence without the proper directive questioning by his counsel. He can misunderstand the

advice already given by the counsel and say something that will actually frame him to the charges against him. Therefore, the said practice of dock statement not only can harm the adverse party but it can do irreparable damage to the accused person as well.

For the above reasons I believe that it’s time for us to reconsider implementing necessary amendments to the procedural laws of the country to abolish the right of an accused person to make an unsworn statement from the Dock.

J. S. C. Circular No. 112My No. JG.259 To all High Court Judges, District Judges, Magistrates and, Primary Court Judges.

SECURITY IN COURT HOUSES

In the light of certain incidents that have occurred within court premises in recent times, the I.G.P. has informed, that he will be able to provide extra security if the police is informed in advance of cases in which such occurrences are likely to take place. It may be possible for the Judicial Officers to identify such cases having regard to the suspects who are to be produced in court on a particular day since there would also be some past incident which is likely to provoke-the occurrences of such incident. Both the Commissioner of Prisons and the Court concerned will be in a position to request additional security from the police on such dates. Therefore the Commission has directed me to request you to inform the police and prison authorities in advance when any danger is anticipated.

Secretary Judicial Service Commission

Office of Judicial Service Commission July 25 1994.

Copies to: S/J-Ref .his 1r NLL/A2/50/92. Dated 28.6.94 addressed to Hon. the C.J. Director SLJI. I. G. P. Commissioner of Prisons.

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“Sic utera tuo ut alienum non laedas”( a man must not make use of his property unreasonably and unnecessarily to cause inconvenience to his neighbors ) - Salmond -

The law relating to Public Nuisance In Sri Lanka.

Manjula Karunarathna| District Judge| Hambanthota.

Chapter IX of the Code of Criminal Procedure Act No 15 of 1979 deals with orders for removal or abatement in cases of nuisance. For the easy reference and the practical purpose, I would like to discuss the aforesaid chapter in a point form as follows.

1) Can the Magistrate act on a petition filed by the private party under and in terms of chapter IX?

Yes, The Magistrate can act on the report filed by the police and on a report or information filed by a private party.

2) Can the Magistrate make Conditional Orders against statutory Bodies and Local Government institutions?

Yes, See, M.M. Khalid and three Others Vs. Chairman, Sri Jayawardenapura - Kotte Urban Council 1996 SLR (3) 62 and H. Premasiri and others Vs. Dehiwala Mt. Lavinia Municipal Council CA No 642/99

3) Can a person defend a public nuisance by long and continuance conduct of his business ?

No, See, Forrest Vs. Leefe ( 13 NLR 119 ).

4) If the Respondent had the Environmental Protection License at the time when the complainant complained to the Magistrate Court, then had the Magistrate Jurisdiction to entertain and determine the application under and in terms

of section 29 of the National Environmental Act?

No, However, if the Complaint, is Respondent violated the conditions of that Environmental Protection License, the Magistrate had jurisdiction to entertain and determine the application. See, Keangnam Enterprises Ltd Vs. Abeysinghe and other ( 1994 (2) SLR 271 )

5) When the Magistrate making his orders under this chapter can he consider Indian Judegments?

Yes he can. However the Magistrate should consider that, whether the wording of the two sections (Sri Lankan CPC and the Indian CPC) are in identical terms. If those two sections are not in identical terms, the Magistrate should not consider Indian judegments. See, Greena Fernando Vs. Teckla Saparamadu. ( 1990 (1) SLR 270 )

6) Is it necessary to take evidence before issuing a Conditional Order?

Yes. It is advisable according to Section 98 (1) of the CPC.

7) Can the Magistrate do a inspection of the scene of dispute?

Yes. See, Samaranayake Vs. Wijesinghe ( 52 NLR 516)

However the inspection must be carried out with

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great care, and should not be made an occasion for the taking of fresh evidence, if anything is said or done which amounts to taking of fresh evidence and the correction any doubts in the minds of the court, that evidence should be repeated from the witness box, so that no prejudice may be caused to the accused. Singho Vs. Buljens ( 48 NLR 285 )

8) Should the Magistrate consider the deference between private nuisance and public nuisance, when he is making his orders under this Chapter?

Yes. See, Somapala Fernado Vs. S.C. Fernando 2002 (3) SLR 388, Nair Vs. Costa (28 NLR 386), Saram Vs. Senevirathna (21 NLR 190)

9) What are the orders can be issued by the Magistrate under and in terms of Chapter IX of the Criminal Procedure Code?

a) Conditional Order under Section 98 (1) of the CPC.

b) Final Order under Sections 100 and 101 of the CPC.

c) Injunction Order under Section 104 of the CPC

d) Absolute Order under Section 106 of the CPC.

10) Nature of the Conditional Order.

(a) Requirements.

I. Receiving a report or other information.

II. Taking Such evidence ( if any ).

III. Magistrate should satisfied himself, that there is a public nuisance under and in terms of section 98 (1) of the CPC.

(b) Requisites

I. Conditions.

II. Time period.

(c) If the Magistrate is not satisfied himself, he can refuse to grant the conditional order, as prayed for by the complainant, thereby concluding the proceedings.

11) When a Conditional Order issued and served ( under and in terms of section 99 of the CPC) to a Respondent what shall he do?

The Respondent should appear before the relevant Magistrate Court and move to have the order set aside or modified before the expiration of the time fixed by that order.

12) Inquiry

a) Who should begin the case?

Respondent should begin the case, by adducing evidence.

Vide, Greena Fernando Vs. Teckla Saparamadu. ( 1990 (1) SLR 270 )

W. Kularatna Vs. V.Dharmadasa (CA No 153/97, decided on 4/5/2001 )

b) There after, is it necessary to adduce evidence by the complainant?

Yes. Because, the overall burden of establishing a public Nuisance lies with the complainant. Vide, W. Kularatna Vs. V. Dharmadasa ( C A No 153/97, decided in 4/5/2001 ).

13) The Final Order Under section 101 of the criminal procedure code.

(a) If the Magistrate is satisfied that, the Conditional order is not reasonable and proper?

I. He shall rescind it, or.

II. He shall modify it in accordance with the requirements of the case, and in the latter case the order as modified shall be made absolute.

(b) If the Magistrate is satisfied that, the conditional order is reasonable and proper?

The conditional order should be made absolute as it is.

(c) There are two situations, that the conditional order should be made absolute as it is,

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I. If the Respondent not act upon the provisions laid down in Section 100 of the CPC or,

II. After the inquiry, if the Magistrate is satisfied that the conditional order is reasonable and proper (up on the provisions laid down in section 101 of the CPC)

14 ) When the conditional order is made absolute by the Magistrate, he may make further order/ orders under section 105 of the CPC.

15) Thereafter, the Magistrate is obliged to issue notice on the Respondent once again under and in terms of the section 102 read with section 99 of the CPC. However, once the conditional order is made absolute by the Magistrate, under section 101 (After the inquiry) it is not necessary to give notice to the Respondents once again.

16) If the Respondent disobey the order under sections 100 and 101 of the CPC, what is the procedure ?.

(a) The Magistrate should satisfied that the Respondent is aware of an order,

(b) Impose the penalty under section 185 of the Penal Code,

(c) The Magistrate should make an order under section 103 (1) of the CPC (if necessary)

17 ) Injunction order under section 104 of the CPC.

In addition to the aforesaid conditional order when there is an imminent danger or injury of a serious kind to the public the Magistrate may issue an injunction order. However, the Magistrate cannot grant a final relief as a Injunction order under and in terms of section 104 of the CPC. If so it is meaningless.

Vide, Keangnam Enterprises Ltd Vs. Abeysinghe and Others ( 1994 (2) SLR 271.

Because I could not stop for Death-- He kindly stopped for me-- The Carriage held but just Ourselves-- And Immortality. We slowly drove--He knew no haste And I had put away My labor and my leisure too, For His Civility--

We passed the School, where Children strove At Recess--in the Ring-- We passed the Fields of Gazing Grain-- We passed the Setting Sun--

Or rather--He passed us-- The Dews drew quivering and chill-- For only Gossamer, my Gown-- My Tippet--only Tulle--

We paused before a House that seemed A Swelling of the Ground-- The Roof was scarcely visible-- The Cornice--in the Ground--

Since then--’tis Centuries--and yet Feels shorter than the Day I first surmised the Horses’ Heads Were toward Eternity--

Because I could not stop for Death-- - Emily Dickinson -

Born in 1830 in Massachusetts, Emily Dickinson lived in almost total physical isolation from the outside world and is now considered, one of the founders of a uniquely American poetic voice.

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1) As a result of the repeated requests we made in relation to appoint a judicial officer for the post of Additional Secretary to deal directly with resolving matters pertaining to judges, Ministry of Justice took steps to create such a post for the coordination of judges issues with the ministry and by now, our member Mr. Kamal Peries who is a senior District Judge has already been appointed to the post.

2) With the intervention of the JSC, JSA was able to get the approval for the full payment of the course fee to the selectees for the LLM programme of the University of Colombo by the Ministry of Justice. By now all the course fees have been fully settled by the Ministry.

3) Upon decision taken by the executive committee on the 01/02/2016 regarding the increase of the membership fee from Rs 250.00 to Rs 500.00, ideas were called from the entire membership. Except one member all others consented to the said decision and thus members of the executive committee unanimously decided on the 27/02/2016 to increase the membership fee up to Rs 500.00.

(this has already been informed to our members)

4) Subsequent to a discussion held the Secretary to the president agreed in writing to admit all the requested judges children to the very schools that they have requested before the end of the first term of the schools.

5) Judges have long been requesting for a salary structure separate from the other government officers. In responding to it to some extent, the circular No 3/2016 of 25/02/2016 issued in relation to the salary revision of the public officers by the Ministry of Public Administration and management , states that a separate circular will be issued in respect of the salaries of the judicial officers. JSA pays its deep concern on this matter and we took steps to discuss with the JSC and in accordance with the instructions given by the Hon

Chief Justice we were able to prepare our suggestions as to how the salaries and allowances of the judges should be formulated and we have handed it over to the JSC. Therefore we are pleased to inform you that we have been taking all possible actions to introduce a circular incorporating a separate salary structure which is best fitting to the service and the status of a judge.

6) We came to know that some judges have come across many difficulties regarding the available facilities and also regarding court administration. It was reported to the JSA that due to the lack of knowledge on administration when functioning as departmental heads and also due to the reason that there is no uniformity in certain administrative functioning among many judges, several junior judicial officers had undergone many problems. Being mindful of this fact executive committee members assembled on the 27/02/2016 passed a resolution to conduct knowledge sharing programmes provincially with the participation of senior judicial officers. We hope to launch this programme in the future with the approval of the JSC.

7) We have made several appeals to the JSC requesting not to appoint retired High Court judges and lawyers as High Court Commissioners. In response to it JSC took a policy decision not to appoint retired High Court Judges as High Court Commissioners for areas other than North and East. Although this decision was slightly changed in the recent past, Hon Chief Justice at a meeting held with us specifically informed us that this will not happen in the future. Due to the language issues appointing of retired High Court judges who are conversant in Tamil language is compelling. However we passed a resolution and submitted to the JSC requesting to appoint senior most judges in the minor judiciary who are conversant in Tamil language as High Court Commissioners for the North and East areas too.

Secretary’s Report

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On 14th January 2016, Hon. Pradeep Jayathilake assumed duties as the Secretary of the Judicial Service Commission.

Hon. Jayathilake was a proud old boy of Sri Sumangala Vidyalaya, Wariyapola and D.S. Senanayake College, Colombo. He entered Sri Lanka Law College in 1990 and he was called to the Bar in 1993. After a brief stint in the Bar he joined the judiciary on October 2000.

He was first appointed as a Primary Court judge, Kandy and later served in various stations in Sri Lanka before assuming his current office.

Hon. Jayathilake completed his LLM degree in University of Colombo and he holds a Post Graduate Diploma in Intellectual Property Rights from University of Wales, and a Post Graduate Diploma in Conflict Resolution and Peace Studies from University of Peace, Costa Rica. He is currently reading for his Master of Philosophy Degree.

Hon. Jayathilake also holds a Post Graduate Diploma in Film making form University of Pune, India and Diploma in Mass Communication (Drama) from State Institute of Theater Arts. He also holds a Diploma in Western Music from Royal Trinity Institute of Music, Landon, UK.

Hon. Jayathilake was always an active member of JSA and served as editor, treasurer and secretary several times.

JSA congratulate Hon. Pradeep Jayathilake on his new appointment.

HON. PRADEEP JAYATHILAKESecretary – Judicial Service Commission.

January - March |2016Cover Design: MoLa SENEVIRATHNA| Layout : AMILA SANDAMALI KANNANGARA

e-mail: [email protected],web:www.sannasgala.lk

Editorial OFFICE BEARERS JSA 2016 W

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