JSA LAW JOURNAL VOLUME VI EDITORIAL COMMITTEE JAYARUWAN DISSANAYAKA RAKITHA ABEYSINGHE web: www.jsasl.org | mail: [email protected] i All rights reserved. © JSA Law Journal 2018 Volume VI Published by the Judicial Service Association of Sri Lanka ISSN 2357-2884 Disclaimer: Any views expressed in the JSA Law Journal are those of the individual author and are not to be attributed to the JSA Law Journal or the Editorial Committee. Unless expressly stated the views expressed are the author’s own and not of any institution the he or she represents. Printers: Sanghinda Printers & Publishers No. 06, Wijerama Road, Gangodawila, Nugegoda. e-mail: [email protected] Tel: 011-2802679 Cover Designer: MoLa Senevirathne Page Layout: Amila Sandamali Kannangara ii MESSAGE OF HIS LORDSHIP THE CHIEF JUSTICE CHIEF JUSTlCE’S CHAMBERS, w.%úksYaphldr ks,ueÈßh" SUPREME COURT, fY%aIaGdêlrKh" COLOMBO 12, fld<U 12" FAX : ++ 94 (0) 11 2437534 Y%S ,xldj' TELE : ++ 94 (0) 11 2422142 *elaia : ++ 94 (0) 11 2437534 E- mail : [email protected] ÿrl:kh: ++ 94 (0) 11 2422142 23rd November 2018 It is indeed a great pleasure to forward this message to be published in the 6th Volume of JSA Law Journal, to be launched at the Annual Judicial Conference organized by the Sri Lanka Judges' Institute in collaboration with the Judicial Service Association of Sri Lanka. Today, we live in a society that is rapidly evolving in all fields, including law. Globalization has changed the dynamism of the entire society, and thus there is greater emphasize placed on the importance of knowledge economy across the world. This demands that the members of the judicial fraternity too equip themselves with necessary tools to perform judicial work professionally and diligently. In this context the annual Law Journal published by the Judicial Service Association of Sri Lanka continues to provide a much needed platform for our judicial officers serving throughout the country, to address subjects of contemporaneous importance and relevance, Which touch upon issues related to our justice dispensation system. Whilst Commending the members of the Judicial Service Association of Sri Lanka and the Editorial Board for their untiring and sincere efforts, I wish them success in all future endeavours. H. N. J. Perera, Chief Justice iii EDITOR’S NOTE It is with great pleasure the JSA Law Journal volume VI – 2018 is published by the Judicial Service Association of Sri Lanka. Judicial education is one of the prime objectives of this law journal. Other than the educational and social values; the research capabilities and ability to present papers with academic value are enhanced through the publication of this law journal. Special reverential appreciation should be paid to His Lordship the Chief Justice for the encouragement given for this academic endeavor. This year, the journal comprises of two parts. Part one of the journal contains scholarly articles by the experts of various disciplines and articles written by the judges of the minor judiciary which were not submitted for the competition and Justice Amarathunga memorial Award. Part two of the journal consists of articles that were submitted for the competition and award. Those articles were evaluated by a panel comprised of His Lordship Justice L. T. B. Dehideniya, Judge of the Supreme Court, His Lordship Justice Arjuna Obeysekara, Judge of the Court of Appeal and Hon. Ruwan Fernando, Judge of the commercial high court, Colombo. Devotion of the members of the panel despite their busy schedules is absolutely appreciated. Entire procedure for the selection of the best article for justice Amarathunga memorial award was supervised by the Judges Institute. Supervision and guidance of Hon. Prashantha Silva, Judge of the High court and the deputy director of the Judges Institute is admired and acknowledged with gratitude. Further the co-operation of Mr. Anushka Senevirathna and Ms. Anandi Kanagarathnam is appreciated. Vehement protestation of gratitude is paid to the authors who have contributed with articles to the Law journal. Their Innovative thinking, willingness for sharing vision with others and dedication is acknowledged and appreciated. Special appreciation goes to the president, secretary, Assistant editor, members of the executive committee of the JSA and former editor of the JSA for the assistance given for the publication of the law journal. I would like to sincerely thank everyone who have supported for the fulfillment of this objective. The JSA law journal has become a platform for judicial officers to perform their skills and to present their views based on researches. It provides an opportunity for an intellectual dialog amongst stakeholders of justice delivery system. Upholding the noble concept of the rule of law and dispense of justice through constant legal education is another prospect. Contribution for the enhancement of legal jurisprudence by providing well researched articles which are up to the international standards is the expectation for the future. v IN MEMORY OF JUSTICE P.H.K. KULATILAKA A TRUE MENTOR W. Rakitha G. Abeysinghe (LL.M) Col. Additional District Judge of Chilaw. Assistant Editor of Judicial Service Association It was the Criminal Law lecture at the first year in law at Sri Lanka Law college, Mr. Palitha Fernando P.C former Attorney General of Sri Lanka was teaching the offence of murder to the young minds, suddenly he was sayingzuOqjka;S ;uhs ug álla yß iekiSula ;sfnkafka tal;a ke;s fjkjd'Z [Maduwanthi, is only bit of comfort for me, I am losing it…] he was teaching cumulative provocation. This is a very sensational quoting articulated in the most famous case of Premlal V. Attorney General1 decided by Justice Kulatilaka where his Lordship was able to broaden the spectrum of interpretation of the defence ‘sudden provocation’ setting a milestone in criminal law norms in Sri Lanka. I must say Justice Kulatilaka is to many one of the most famous judges of all time in Sri Lankan legal spheres. Law students, Judges and members of the legal fraternity certainly love him for his intriguing judgments. Justice Kulatilaka’s judgments certainly make for interesting reading. His Lordship Justice Kulatilaka is judge who never refrained from carrying out his obligations towards the Judiciary of Sri Lanka. Justice Kulatilaka discharged his duties as long as his lordship felt that his Lordship can do the same in full steam. One who possesses such a sincere courage and erudite sprit for disseminating knowledge is a true blessing for the oncoming generations. vii It is a great privilege me to be able to write some thoughts about Justice Kulatilaka a true legal luminary. In this endeavour Justice Kulatilaka’s beloved wife Mrs. Kulatilaka and daughter Dr. Shalindra Ranasinghe has provided me with valuable information. I am grateful for those insights provided by them. His Lordship Justice Peduru Hewa Kankanange Kulatilaka was born on the 5th of January 1939 in spellbinding Southern coastal city of Galle in Sri Lanka. He hailed from a distinguished family, his father was a wealthy businessman and mother was a caring house wife who nurtured Justice Kulatilaka and his seven siblings. Justice Kulatilaka attended Mahinda College of Galle where he excelled in academic spheres. He was able to bring fame to his prestigious Alma mater by leading Mahinda in numerous intellect oriented extracurricular activities involved in Sinhala and English Senior debating and Senior General Knowledge teams. Justice Kulatilaka persued his higher studies in the University of Peradeniya having gained entrance to the esteemed institution in 1959. After successfully completing the academic tenure in the University of Peradeniya, he obtained a Bachelor of Arts degree having specialized in Geography. Justice Kulatilaka had an immense inherent passion for teaching; thus his Lordship’s immense desire for sharing knowledge was embodied in every stage of his life. His Lordship’s dream was fulfilled by becoming a teacher attached to a Government school. His first teaching appointment was in 1963 at Meda Mahanuwara Maha Vidyalaya in Kandy. In the year of 1966 he joined Ananda College Colombo. At the Ananda College Colombo, he was able to work under the guidance of Colonel Perusinghe and Colonel Rajapaksha. There he perfected his teaching skills adding a sense of discipline to it. Justice Kulatilaka detested the means and modes of wasting time, and his eagerness to learn and teach intensified during his stay in Colombo. To make full use of his precious, he was ambitious enough to earn another degree, and that degree was a turning point in his life - opening the doors to the legal arena. His Lordship joined the University of Colombo to pursue Law. Justice Kulatilaka obtained his Literally Legum Baccalaureus (LL.B) from University of Colombo as an external student candidate on 20th February 1970. His Lordship passed the final examination of admission of the Advocates of the Supreme Court of Ceylon in 1971, and accordingly he was called to the bar. On 6th September 1973 He was appointed to a post of Supreme Court Legal assistant attached to the ministry of justice. Those days this post was created to assist Supreme Court judges in their legal research work. While he was discharging his duties of the said office Justice Kulatilaka was able get acquainted with several Supreme viii Court Justices. He got the rare opportunity to witness the calibre and demeanour of apex court judges who immensely impressed him to become a Judge. In the year 1976 all recruits for the post of Supreme Court Legal assistants were absorbed as State Counsel at the Attorney General’s Department. Accordingly Justice Kulatilaka became a state counsel on the 1st September 1976. Justice Kulatilaka prosecuted in many significant cases during his Lordship’s time at the Attorney General’s Department. Subsequent to his Lordship’s meritorious work at the Attorney General’s Department, his Lordship was promoted to a Senior State Counsel on 1st June 1984.