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13TH INTERNATIONAL RESEARCH CONFERENCE HOLISTIC APPROACH TO NATIONAL GROWTH AND SECURITY

LAW PROCEEDINGS

General Sir John Kotelawala Defence University Ratmalana,

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© Sir John Kotelawala Defence University All rights reserved

This book contains the Conference Proceedings of the Law Sessions of the 13th International Research Conference of General Sir John Kotelawala Defence University, Ratmalana, Sri Lanka held on 15th and 16th of October 2020. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form, without prior permission of General Sir John Kotelawala Defence University, Ratmalana, Sri Lanka.

Published by General Sir John Kotelawala Defence University, Ratmalana, Sri Lanka

Tel: +94-71-021-9425 e-Mail: [email protected] Website: https://www.kdu.ac.lk/irc2020

ISBN 978-624-5574-15-5 Other Proceedings of the Conference: Defence and Strategic Studies : ISBN 978-624-5574-12-4 Medicine: ISBN 978-624-5574-13-1 Engineering: ISBN 978-624-5574-14-8 Management, Social Sciences and Humanities : ISBN 978-624-5574-16-2 Allied Health Sciences: ISBN 978-624-5574-18-6 Built Environment and Spatial Sciences: ISBN 978-624-5574-19-3 Computing: ISBN 978-624-5574-17-9 Basic and Applied Sciences: ISBN 978-624-5574-20-9

Published on 15th October 2020

Cover page designed by Malith Ileperuma

e-Book Version

Platinum Sponsors

Co Sponsor

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Patron, Conference Steering Committee Maj Gen MP Peiris RWP RSP USP ndc psc, Vice Chancellor

President, Steering Committee Brig N Hathurusinghe psc IG Hdmc

Conference Chair Dr L Pradeep Kalansooriya

Conference Secretariat Mr Sanath de Silva Ms NKK Mudalige Dr (Ms) NS Fernando Capt DDGR Karunarathne

Steering Committee Brig RGU Rajapakshe RSP psc Prof MHJ Ariyarathne Cmde JU Gunaseela psc Snr Prof SRD Alwis Senevirathne Col ULJS Perera RSP USP psc Snr Prof JR Lucas Col WMNKD Bandara RWP RSP USP psc Snr Prof ALS Mendis Capt (S) WM Senevirathna Snr Prof ND Warnasuriya Lt Col AK Peiris RSP Snr Prof RN Pathirana Squadron Leader WNI Yalagama Snr Prof SSSBDAA Jayawardane Prof CL Goonasekara Mr VD Kithsiri Dr UG Rajapaksha Dr KMGP Premadasa Dr (Ms) ADM Gunasekara Dr JMKB Jayasekara Mr MPC Wijesooriya Ms ND Ranasinghe

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Editorial Committee

Mr. WAAK Amaratunga – President Cmde JU Gunaseela USP psc Snr Prof Amal Jayawardane

Col ULJS Perera RSP USP psc Prof W Abeywickreme

Capt (E) MCP Dissanayaka Dr US Rahubadda

Maj (Dr) WMMS Bandara Mr PDDD Wickramasinghe Dr HL Premaratne

Dr S Fernando Ms BDK Anandawansa

Dr DDTK Kulathunga

Dr R Vijitha

Ms Lakshani Willarachchi

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Panel of Reviewers

Mrs JI Abegoonawardana Snr Prof Rohini Fernandopulle Maj JPWK Abeyawickrama Ms Madushika W.K Gamage Dr RMTB Abeyratne Dr AU Gamage Dr Bandula Abeysinghe Mrs Anjalee Gamage Dr Ujitha Abeywickrama Archt DWK Gayantha Dr MPKW Abhayasinghe Dr Ayantha Gomes Dr De Alvis Dr Kishara Goonerathne Mr WM Amaradasa Dr BGDS Govindapala Dr AATD Amarasekara Prof DMA Gunaratna Dr Niranga Amarasinghe Dr NK Gunasekara Mr WAAK Amaratunga Dr ADAI Gunasekara Dr KR Ambepitiya Prof CL Gunasekara Ms BDK Anandawansa Mr GP Gunasinghe Dr Anuradha Ariyarathne Dr MDEK Gunathilaka Dr Kusalika Ariyarathne Dr HRWP Gunathilake Prof MHJ Ariyarathne Mr MMLC Gunathilake Mrs Iresha Ariyasingha Dr Buddhika Gunawardana LCdr RDS Arunapriya Prof Sampath Gunawardena Prof Bandunee Athapattu Dr SHNP Gunawickrama Dr Iresha Attanayake Prof KBS Gunawickrama Dr ME Balasooriya Dr ADAI Gunesekera Mr DN Balasuriya Dr GN Duminda Guruge Col (Prof) Aindralal Balasuriya Mr SMB Harshanath Mr Ravimal Bandara Miss Ayesha Herath Dr Wasala Bandara Mr HMN Herath Dr RMPS Bandara Dr R Herath Dr AWMKK Bandara Dr Janith Hettiarachchi Mr KPSPK Bandara Dr B Hettige Dr Yapa Mahinda Bandara Dr Kanthi Hettigoda Lt Col (Dr) WMMS Bandara Mr Dulitha Hewadikaram Eng Prabath Buddika Dr Asiri Hewamalage Dr Thushara Chaminda Dr IMPS Ilankoon Dr SP Chaminda Dr RP Illeperuma Dr KVDS Chathuranga Ms WMKS Ilmini Dr Senarath Colombage Dr B Indrarathne Dr Amali Dalpadadu Ms JAD Jayakody Eng SU Dampage Dr JMKB Jayasekara Dr Damayanthi Dasanayake Dr Priyamali Jayasekara Dr WAR De Mel Ms BKM Jayasekera Ms LM De Silva Dr SD Jayasooriya Dr Sara De Silva Dr WJABN Jayasuriya Mr KSC De Silva Mrs JADUN Jayasuriya Prof Nelun de Silva Dr MRS Jayathilake Dr Dulantha de Silva Snr Prof Amal Jayawardane Dr Darshan de Silva Dr MM Jayawardena Dr Seneetha de Silva Dr Kaushalya Jayaweera Mrs MMKOK de Silva Dr Janathanan Jeyakumar Dr Anjula De Silva Dr Kasun Jinasena Mrs SCM de S Sirisuriya Ms Gayanthi John Ms R Devi Maj (Dr) Darshitha Jothipala Mr HKA Dharmasiri Dr Thilini Kananke Mrs Umanda Dikwatta Ms SU Kankanamge Capt MCP Dissanayaka Dr GD Kapila Kumara Ms AA Edirisinghe Capt DDGR Karunarathne Sqn Ldr Dinusha Edirisinghe Dr AMDS Karunaratna Dr EATA Edirisuriya Dr PPCR Karunasekara Dr Chamira Edusooriya Mr RDN Karunathilake Dr CD Ekanayake Mr RPS Kathriarachchi Dr Ruwan Ferdinando Dr Gnanaselvam Kisokanth Dr Sithara Fernando Dr Saman Koswatte Dr TGI Fernando Dr DU Kottahachchi Cdr Sarath Fernando Mr DMR Kulasekara Dr Lakshitha Fernando Dr DDTK Kulathunga Snr Prof PR Fernando Dr RP Kumanayake Dr Neil Fernando Mr PPNV Kumara Dr NS Fernando Archt WAPS Kumara

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Dr KMN Kumarasinghe Dr RMKT Rathnayaka Dr KDKP Kumari Maj RMRKK Rathnayake Dr GP Lakraj Dr RMKT Rathnayake Ms Esther Liyanage Maj RMM Pradeep Dr Mrs LS Liyanage Dr (Mrs) KKNP Rathnayake Dr Indika Liyanage Dr (Mrs) RMCLK Rathnayake Dr Sanka Liyange Dr AJIS Rathnayake Ms DD Lokuge Dr Saman Renuka Prof Rohan Lucas Dr Thusitha Rodrigo Mr Pasan Maduranga Dr GD Ishani Rodrigo Brig (Dr) PTR Makuloluwa Dr Nilan Rodrigo Dr Lasanthi Malaviarachchi Dr HSR Rosairo Dr Sarath Malawipathirana Dr AR Rupasinghe Dr Kritsada Mamat Dr Methsiri Samarakoon Mr KP Manuranga Mrs PWGDP Samarasekara Dr MKDL Meegoda Mr Rangajeewa Samarathunga Ms WDH Mel Mrs W Samaraweera Dr Thushini Mendis Dr Thisara Samarawickrema Snr Prof Susirith Mendis Ms KUJ Sandamali Ms Samanthi Menike Dr MS Sandanayake Dr TP Miyanwala Ms Niruka Sanjeewani Dr Nasmia Mubarak Ms NA Sanjeewani Ms NKK Mudalige Mr S Satheesmohan Dr IUK Mudalige Dr G Senanayake Dr Dulini Mudunkouwa Dr SP Senanayake Dr Janake Munasighe Dr Asela Senanayake Ms MRIK Munasinghe Ms Bhagya Senaratne Mrs Priyanga Munidasa Dr Thamarasi Senaratne Dr Dilini Nakkawita Mr Asantha Senavirathna Dr Chandrika M Nanayakkara Dr Niroshan Senevirathna Dr Vauna Navarathna Ms SMKS Senevirathne Mr SC Padmakumara Dr DMKN Seneviratna Dr HR Pasindu Snr Prof SRDA Seneviratne Snr Prof RN Pathirana Snr Prof Rizvi Sheriff LCdr KGC Pathmal Mr ARN Silva Mrs WPJ Pemarathne Dr Sanjeewani Silva Dr Janaka Perera Dr (Mrs) RMNT Sirisoma Dr Loshaka Perera Mr MA Siriwardhene Dr Ranjan Perera Mrs Tina Solomons Mr CJSAH Perera Dr KA Sriyani Eng Randika Perera Ms RDUP Sugathapala Ms GAD Perera Prof Athula Sumathipala Ms ADP Perera Dr S M T D Sundarapperuma Dr Namal Perera Mrs Wasana Uduwela Ms DR Perera Mrs DU Vidanagama Dr KS Perera Dr HR Vidanage Dr PKDD Pitigala Dr R Vijitha Mr ALI Prasanna Dr Meththika Vithanage Dr Wuditha Premadasa Mr WADGI Wanasinghe Dr Prasanna Premadasa Dr SSP Warnakulasuriya Dr GAS Premakumara Snr Prof Narada Warnasuriya Dr HL Premarathna Mrs ID Wattuhewa Archt MLNH Premarathne Mrs N Wedasinghe Dr WMAGHA Premarathne Dr BS Weerakoon Mr JMW Premarathne Snr Prof TR Weerasooriya Dr S Premaratne Prof DBM Wickramaratne Lt Col (Dr) Prasad H Premaratne Dr Wasantha Wickramasinghe Dr DSP Pulleperuma Dr Thiwanka Wickramasooriya Dr Malinda Punchimudiyanse Dr Ranga Wickremarachchi Dr KSR Pushpakumara Sqn Ldr (Rtd) Uditha Wicramarathna Dr US Rahubadda Mr RD Widanagamage Mrs RMNP Rajapakse Dr Sanika Wijesekara Ms Prasadi Rajapaksha Mr WLPK Wijesinghe Dr UG Rajapaksha Dr Namal Wijesinghe Dr Prabath Ranasinghe Ms MPC Wijesooriya Snr Plnr CP Ranawaka Mrs AI Wijethunga Ms RBWMH Rathnamalala Mrs MTN Wijetunge Dr Vishaka Rathnamalala Ms L Willarachchi Dr Sarath Rathnayaka Dr Trilicia Withanawasam

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Session Coordinators

Defence and Strategic Studies Brig RGU Rajapaksha RSP psc Col ULJS Perera RSP USP psc Maj RMS Rathnayake RSP Maj TVN de Saa RSP psc Ms Niruka Sanjeewani

Medicine Gp Cpt (Dr) RANK Wijesinghe Dr KSR Pushpakumara Dr TI Withanawasam Dr BCIJ Nanayakkara Engineering Capt (Rtd) Eng SU Dampage Dr WTS Rodrigo Mr SD Karunarathna Capt SAAAK Athukorala Management, Social Sciences and Humanities Mr WAAK Amaratunga Ms HMAGK Ekanayake Ms P Lankeshwara Ms T Kotelawala

Law Mr WS Wijesinghe Ms MRIK Munasinghe Ms AA Edirisinghe Allied Health Sciences Dr DU Kottahachchi Dr SP Senanayake Mr ARN Silva Ms UDH Kanchana

Built Environment and Spatial Sciences Dr AR Rupasinghe Ms KS Dinusha Ms NDI Vithana Mr HDS Asoka Computing Cmde JU Gunaseela USP psc Ms WPJ Pemarathne Mr DMR Kulasekara Mr GIF de Silva

Basic and Applied Sciences Dr SHNP Gunawickrama

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Table of Contents

Welcome Address ...... 1 General Milinda Peiris RWP RSP USP ndc psc Chief GUEST’S SPEECH ...... 3 Prof. GL Peiris Keynote Speech ...... 9 Prof. Kapila Perera Vote of Thanks ...... 13 Dr. L Pradeep Kalansooriya Session Summary ...... 16 Session Chair: His Lordship Jayantha Jayasooriya PC, Chief Justice of Sri Lanka Rapporteur: Mr Managala Wijesinghe, Dean, Faculty of Law, General Sir John Kotelawala Defence Universiy Sri Lanka, Its National Security and the Law ...... 18 His Lordship Yasantha Kodagoda PC The Rule of Law in the Globalized Society ...... 22 Mohan Peiris PC Holistic Approach to National Growth and Security: A Global and Local Perspective ... 29 Dr Charika Marasinghe29 The Need to Strengthen the Legal Framework to Ensure Security Concerns...... 34 Rear Admiral (Retd.) Shavindra Fernando PC Technical Session 1: Session Summary ...... 39 Session Theme: Expanding the Horizons of Commercial Law for National Prosperity . 39 Session Chair: Dr. Chathura Warnasooriya39 “Intellect Eclipsed”: An Analysis of the Unconscious Bias and its Impact on the Development of Intellectual Property Law...... 40 Hasini Rathnamalala# and Padmaja Wijesooriya Contracts formed during Frustrations and Force Majeures: An Anti-Crisis Shield for Consumer Protection against Boilerplate and Limited Liability Clauses ...... 46 S.M.Anuruddika G. Senevirathne The Effectiveness of the Piercing of Corporate Veil Under Sri Lankan Law: A Comparative Analysis of the Sri Lankan Law with UK Law...... 55 RMRKK Rathnayake Legal Implications of COVID-19: Force Majeure and Contractual Obligations in International Sale of Goods ...... 61 YP Wijerathna and BKM Jayasekera Copyright Protection of Application Programme Interfaces: An Analysis of the Sri Lankan Position ...... 68 Shenali C. Dias

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Technical Session II: Session Summary ...... 76 Session Theme: Emerging Trends in Public Law: Legal and Economic Perspectives ..... 76 Session Chair: Mohan Peiris PC Right of the Host State to Regulate the Environment and Investment Protection - A Changing Landscape ...... 77 NS Liyana Muhandiram The Failure of Guardians: Mount Lavinia Artificial Beach and Public Trust Doctrine ... 84 SPCT Abeysiriwardena, VR Algewatta and ALU Gamage#Faculty of Law, General Sir John Kotelawala Defence University How the Offence of Rape has been Overshadowed by Marriage and its Impact on National Growth of Sri Lanka: A Critical Analysis from Legal and Economic Perspectives ...... 92 SBYM Duneesha Siwrathne Establishing Rule of Law to Achieve Sustainable Development: The Pathway for National Growth in Sri Lanka ...... 101 TD Walgama Application of the Concept of Reparation in Transitional Justice in Sri Lanka ...... 108 AN Hettiarachchi and WDS Rodrigo Technical Session III: Session Summary ...... 115 Work-From-Home – The Legal Status of Sri Lanka...... 116 NKK Mudalige and AA Edirisinghe A Critique of Available Remedies for Industrial Disputes Arising out of COVID-19: A Comparative Analysis ...... 120 HGS Rosairo and HD Jayaweera Employment Security of Probationary Workers in Sri Lanka: A Comparative Legal Analysis...... 130 BAR Ruwanthika Ariyaratna Impact of Covid-19 to the National : A Comparative Analysis with the on Employees’ Rights ...... 136 AS Samarakoon, VP Liyanage and MR Premashantha Technical Session IV: Session Summary ...... 145 National Security and Freedom of Expression in Sri Lanka: Friends or Foes ...... 146 A N Bopagamage and PP Algama Regulating Food Advertisement in Sri Lanka and Curbing Childhood Obesity: The Way ...... 156 Geethani Jeewanthi Definitional and Interpretational Approach towards Economic Development on the Word ‘Income’ under Current Laws of Income : A Comparison of Sri Lanka and India ...... 165 RPD Pathirana Conceptualizing Local Governance in the Context of Citizen Participation: Towards a Participatory Approach of Local Government Institutions in Sri Lanka ...... 176 UAT Udayanganie

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Way towards Re-Introducing Criminal Defamation in Digital Diplomacy Affecting National Security: A Comparative Analysis with India...... 190 VP Liyanage and DAM Supunika Punishments under the Quarantine and Prevention of Disease Ordinance in Sri Lanka: Adequate to Fight a Pandemic? ...... 199 HLI Udani and UI Abeywickrama Effectiveness of Foreign Portfolio Investment with regard to Multinational Corporations in the Long Run ...... 205 ND Wanaguru Proportionality as a Separate Ground of Judicial Review: A Myth or Reality in United Kingdom and Sri Lanka ...... 210 HA Jinasena Abuses against Juvenile Offenders as National Security Threats; Rehabilitation and Reintegration of Juvenile Offenders in Sri Lanka ...... 220 DA Munaweera Need of Legal Recognition for Distance Working in PostCovid19 Sri Lanka: An Empirical Approach ...... 232 DND Kannangara and BANM Balachandra

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Welcome Address

Major General Milinda Peiris RWP RSP USP ndc psc

Vice Chancellor, General Sir John Kotelawala Defence University

Honurable Minister of Education, Professor This year’s theme ‘Holistic Approach to G L Peiris, the Chief Guest , Keynote Speaker, National Growth and Security” highlights the Secretary to the Ministry of Education, importance of maintaining a harmonious Professor Kpila Perera, Secretary to the blend in security and development in all Ministry of Foreign Affairs, Admiral Prof. national projects. As you are aware, this Jayanath Colombage, Deputy Vice Chancellor year’s conference is taking place amidst very (Def & Admin) Brig. Nanda Hathurusinghe, challenging circumstances, so much so that, Deputy Vice Chancellor (Academic) Prof. it becomes a landmark event of KDU in Jayantha Ariyarathne, Deans of the terms of its resolution to ensure the respective Faculties, Directors of Centres, continuity of events at KDU even under the Academics, Senior Military Officers, most trying circumstances. And this Administrative Staff, Students and all conference is also significant because the distinguished guests who are connected year 2020 marks 40 years of existence of with us in the cyber space. KDU since its inception in 1980. First and foremost, let me very warmly KDU, initially established as a tri-service welcome our chief guest, Hon Professor GL academy known then as KDA or Kotelawala Peiris, Minister of Education for very kindly Defence Academy, marked a significant accepting our invitation and for gracing this diversion in 2008 with its renaming as occasion as the chief guest of this inaugural General Sir John Kotelawala Defence session of our international research University. Since then, with the guidance conference 2020. and vision of His Excellency the President Gotabaya Rajapakse, as the then Secretary to Sir, we consider your presence here this the Ministry of Defence and the Chairman of morning, as one of the most renowned our Board of Management, KDU kept a giant scholars the country has ever produced in leap forward to become a fully-fledged the field of Law, as a great honour to KDU. university with nine academic faculties and Let me also warmly welcome our keynote a University Hospital with state-of-the-art speaker, Prof Kapila Perera, Secretary to the facilities. With this phenomenal change, Ministry of Education, who is having a very KDU began expanding its horizon to provide close affinity with KDU as an illustrious its high-quality higher educational member of our alumni association. opportunities to civilian students, thereby Then I also welcome Admiral Professor reducing the burden on other state Jayanath Colombage, Secretary to the universities of the country in supplying for Ministry of Foreign Affairs, and other the higher educational demand in the distinguished guests and invitees country. Today, the University is ready to participating on line as well. KDU, from its march forward steadfastly contributing to inception, was instrumental in handing the national needs combining the national down the core values of security to the security domain with higher educational development paradigm in Sri Lanka. needs of the country.

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Ladies and gentlemen, KDU international This year’s conference has attracted six research conference has been attracting hundred and fifty plus paper submissions, local and foreign presenters, participants which I believe is a very clear indication of and more importantly renowned scholars the right enthusiasm growing in the country and professionals of the highest caliber both towards research, particularly in locally and internationally. However, in this development and security domains. So we year, the global pandemic situation has are proud as a university to be able to stand restricted having them physically present at up resolutely to fulfill the needs of the KDU. But many of our invitees will join us on nation, especially at a time when such line to enrich the deliberations through this efforts are very much needed. I believe the novel experience of having the conference efforts of security-based education aiming at on a virtual platform. strengthening national development should be more cooperative in the future and KDU I reckon that this is a blessing in disguise for has always facilitated any research efforts us to travel on untrodden paths for new that strengthens the national security of our discoveries. KDU IRC has been instrumental nation. We urge the academic community of in establishing and strengthening the much Sri Lanka to join hands with us in all our needed research culture not only at KDU but future endeavours to support also in the whole country. especially through productive research in We have been attracting papers from almost diverse disciplines. all universities, from many research The organizers of the KDU international institutions and other organizations research conference intend to set the tone to representing even Batticaloa and Jaffna, initiate more collaborative research at which I reckon is a very encouraging sign. national and global levels. This research And the impact of the growing research conference is an ideal platform to make culture was evident during the first connections. I hope that authors of KDU and breakout of Covid 19 earlier this year, where various other local and international our staff and students were researching day universities will take the opportunity to and night for creating various products and interact and develop friendly relationships, inventions of our own to help the fight establish networks and to explore win-win against Corona. So, it is heartening to note situations. that in this year’s conference, there are many research papers reaching the I wish all the very best for the presenters conference secretariat, which involve the and hope you will enjoy every moment of student community of our nine faculties. this academic fusion taking place on two whole days. Therefore, we are proud that we have created a platform for emerging researchers Finally, let me once again welcome our chief and scientists for showcasing their research guest and the keynote speaker on behalf of outcomes at KDU research conference. And all KDU staff. I wish that presenters and it is our fervent belief that inculcating and participants would have all the courage to fostering the research culture and continue their pursuits with determination enhancing the quality and quantity of to link up with the international community research in various disciplines in the and work towards national growth and country can raise the resilience levels of development through their research. society and the nation as a whole. Thank you.

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Chief GUEST’S SPEECH

Prof. GL Peiris

Honourable Minister of Education,

Major General Milinda Peiris, Vice interruptions for 13 years adding to your Chanceller of the Sir John Kotelawala expertise as you go alone improving and Defence University of Sri Lanka, Admiral expanding towards what you are Professor Jayanath Colombage, Secretary to attempting. It is greatly to be admired the the Ministry of Foreign Affairs, Professor sense of perseverance and determination Kapila Perera, Secretary to the Ministry of that is greatly required in this country at Education, Deputy Vice Chancellors, Deans this moment and your performance is an of Faculties, Heads of Department, members inspiring example of what we all need to of the staff and students of this university, carry the country forward to even greater friends well wishers, ladies and gentlemen. I heights. am delighted to be present with you on this Now the theme that you have chosen for this occasion for the 13th International Research 13th International Conference is extremely Conference. I am no stranger to these appropriate from many points of view. You surroundings. I have been consistently have heard representation from many associated with your work during the countries as Major General Milinda Peiris, progress of your university until you have Vice Chancellor explained a moment ago. reached the stature that we all are proud of You are holding this conference in at this time. There is no doubt that with the exceedingly challenging circumstances. nine fully-fledged faculties that you already Again you have been to adapt to difficult have and your plans further to expand this circumstances.You are resorting to modern university particularly bearing in mind the technology to include and involve foreign priorities of this country at this moment. I participants in these deliberations even am particularly happy about your plans for though they are unable to present with us the establishment of a Faculty of Criminal physically on this occasion. The topic that Justice. I think that is certainly an area that you have chosen is the holistic approach to is worthy of focus and attention. So you have national growth and security. I think that is always assessed, evaluated very accurately extremely relevant to present day needs in the needs and priorities of our country in Sri Lanka today. the field of Higher Education. And you have been very quick to respond to those needs. The first point I would like to make is that That innovative approach is much to be there is an intimate connection between admired. And these are among the reasons national growth and security. It is fanciful to why I have particular pleasure in joining you talk of any kind of national growth without in these deliberations. There is one another the assurance of security. Security is a matter that I would like to mention. It is this necessary and indispensable foundation. that you are having this conference for the Without security it is impossible to achieve 13th consecutive time. It is our experience growth in any sector of the economy. The in this country that many good things are celebrated Political Scientist the late planned and inaugurated. It is much more Professor Harold Laski of the London School difficult to follow through. So the fact that of Economics said that the basic of a you have been able to do this without state is to provide security for its people.

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That is the ultimate reason for the existence convey to them in definite terms the of the nation state. The theory of the Social impression, the conviction that they are very Contract which has been developed by much part of the country. They belong, the writers like Lock and Rousseau emphasizes sense of belonging so that confidence should the fact that the public have given the be imparted to minorities, and at the same authority to state principally for the reason time, it is absolutely necessary to carry the to create conditions in which life can go on majority community with you. If you lead in an orderly and frank manner so that the them behind if you engender in the lines of citizens of that state can realize their fullest the majority community that they are not potential as human beings, develop important, they can be sidelined, they do not themselves and develop the community in matter, such an exercise in reconciliation is which they live. In order to do this the doomed to failure as empirical experience in essential condition is security. Without it those 4 years convincingly demonstrated. nothing at all can be accomplished. Now we What happened during that period? I think have seen empirical evidence of this in the the most alarming spectacle that we are recent past of our country through the 30- seeing in this country today is evidence that year conflict with the Liberation Tigers of is transpiring in daily basis before the Tamil Eelam. It was impossible to attract Presidential Commission that is going into substantial investment into this country. the catastrophic phenomenon of the Easter Every facet of Sri Lanka’s economy suffered Sunday Attack. Evidence has been given by grievously during that period. How can you one witness after another, the Inspector attract investors into a country which has General of Police, the Secretary to President, been thrown asunder by a ferocious war? the Secretary of Defence, all these people. Investment, international all this was Their evidence emphasizes the total affected by the ongoing conflict. I would also breakdown of this security apparatus in the like to make a reference to the concept of country. It is not mere debilitation or reconciliation which became very relevant weakening of security apparatus it was total and important after the end of the war in collapse of it. There was no security 2009. There was then naturally the feeling apparatus functioning in this country at all that we have to leave the pain and anguish in any realistic sense. So it led to the loss of of the war behind us. We have to emphasize 265 valuable lives of this country and unity and the solidarity and bring together crippling of many other citizens of our land. all the people of our cherished land Why did this happen? irrespective of caste, creed, ethnic or When the present President, His Excellency religious identity to emphasize the oneness was Secretary to the of the nation. That was the pith and Ministry of Defense, there was a very close substance of the concept of reconciliation. collaboration between the intelligence arm But it all went wrong during the Yahapalana and immigration. Whenever an application administration of 2015 to 2019. And it is was made by a foreign preacher somebody worth examining in an objective spirit the who wants to come and teach in this reasons why that endeavour failed so country, when visa was requested a very miserably. I think the basic reason is that the thorough background check was done. As authorities at that time forgot the Admiral Professor Jayanath Colombage sentiments, the feelings and aspirations of would bear witness the antecedent of the the majority community. Reconciliation of person applying for the visa was thoroughly course bases emphasis on minority examined. And if there was anything aspirations to make them comfortable, to

4 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law unsavory in the past of that person, if he has is no exposure, visibility or accountability. It been involved in any activity which led to is that brought about a situation that disharmony among communities, then the culminated in the total collapse of this immigration authority in close consultation security establishment. Madrasas can be all with the intelligence arm would turn down over the country. There are no Sunday such a request for visa in this country. That Schools. They are providing many of them whole apparatus was consciously and on daily basis. Nobody examines the deliberately dismantled. It did not happen curricula. There is no regulatory mechanism unwittingly or inadvertently. It was at all. So the seeds of racial hatred are sown deliberate government policy. So by those institutions. Of course there must intelligence personnel were made to feel be freedom with regard to imparting that they were in embarrassment. The less instruction. But clearly there must be some that heard from them, the less they were supervision, some control, some regulation. seen the better. That was the environment That was totally lacking. So the country then which prevailed at that time. paid the supreme price for the neglect of security in pursuit of narrow and particent Surely, if you are talking of national growth and political objectives to placate aggressive and security, the first thing to ensure is that minorities, not law abiding members of funds that are coming from abroad had to be minority communities, but people who were brought into the country through proper intent on the destruction of the very social channels. We have in this country such an fabric of the country. So that was our sad established conduit. The conduit is the experience. External Resources Department of the Central Bank of Sri Lanka. Of course This is true not only within the country, but resources are welcome. But they must come also in the conduct of our foreign relations. through the External Resources What happened there? Sri Lanka is unique Department. We must know the source, the among the nations of this world in origin of these fundsand where are these committing to a resolution in 2015 in the UN funds coming from? We must know the Human Rights Council. Sri Lanka became a purpose for which these resources are going co-sponsor of a resolution in condemning its to be applied, who is going to manage these own armed forces accusing its armed forces resources? There must be an auditor of the gravest crimes under international accounts. All of these were dispensed. You law and under the international had a situation where a university was built. humanitarian law because the preamble to What is the purpose for a university to resolution 13/1 of the 1st of September come up in Kattankudy. The facilities, the 2015 acknowledged with appreciation the buildings that are constructed, they are report of the High Commissioner for Human better than the buildings that you have here Rights. And the High Commissioner’s report at the Kotelawala Defence University. They makes the most damaging allegations are superior to the quality of the against the armed forces of this country. infrastructure in the universities of And the government of Sri Lanka endorsed and Peradeniya. If you go to Kattankudy all of them and called for a thorough blindfolded if the blindfold is taken off when investigation at the international level. The you get there, you will feel that you were in resolution gave responsibility to the Human the Middle East. The Palmyra trees, the Rights Council and to the Commissioner for architecture the overall environment. The Human Rights to keep Sri Lanka under sums of money involved are colossal. There constant review. So here was a government

5 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law which consciously, voluntarily, deliberately So this attitude which destroyed the very submitted the country to adjudication and foundations of our national security assessment in respect of its armed forces to manifested itself both in respect to domestic international tribunals where justice policy and the conduct of country’s foreign considered the inanity of what happened. relations during that period 2015 to 2019. There were pledges given. In resolution In such a situation you cannot possibly have 13/1 and 34/1 which are clearly contrary to national growth. You cannot have economic the highest law of this country, the advancement because security has broken constitution of Sri Lanka operating para 6 of down entirely. the first resolution 13/1 recommended that Just one another point I want to make before foreign judges of Commonwealth and other I conclude, and that is the reference to foreign judges should be entrusted with the militarization in the current political task of judging our armed forces and of discourse. Non-governmental organizations course, members of the civilian population. and elements of the opposition as well as This is not possible under Sri Lanka’s some prejudiced and biased foreign constitution because foreigners cannot commentators are finding fault with the role exercise judicial power in respect of our of the military in the conduct of national citizens. And then the High Commissioner affairs in Sri Lanka at this time. But no for Human Rights, Prince Hussein publicly objective observer of the Sri Lankan scene conceded that in respect no other country can doubt the fact. When it came to the has a Human Rights Council based in Geneva control of COVID-19, this country could not adopted so intrusive approach – so possibly have achieved what it did without intrusive, interfering directly with the vigorous involvement and cooperation domestic policy in that country. To what of the armed forces, particularly the extent did this go? The resolutions involved intelligence arm. We were able to control matters which are clearly within the domain the pandemic because the armed forces of the Sri Lanka’s parliament not the were able to identify those who have been business of foreigners. It called for infected, first the immediate circle and then constitutional reform. It called for the outer periphery. That is still being done, devolution of greater powers to provincial yesterday today it is being done. And the councils. It called for thorough overhaul of role of the armed forces is indispensable. Sri Lanka’s armed forces and the police. It Without them the situation would be far called for the repeal of the prevention of worse than it is. Why is there this kind of terrorism Act and its replacement by hostile attitude towards armed forces? I alternative legislation. Members of the Sri think people who subscribe to that point of Lankan armed forces and the Sri Lankan view failed to distinguish between the police force were to be subjected to special culture of east and west in this regard. criteria when they applied to join UN Cultural attitudes, assumptions and values Peacekeeping forces abroad and even to are in critical significance in this area. The enroll for programmes of training. So this is attitude in this country, the attitude of the the extent to which national dignity and public, of ordinary people, to the armed pride was compromised in order to placate forces is not what prevails in some western foreign interests whose aims and objectives countries. The armed forces are not looked were incompatible with the well-being of upon with fear. They are not regarded as this nation. instruments of oppression. On the contrary, after the war ended in 2009, it is in effect

6 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law the armed forces, they got involved very available in their institutions during next intimately, very vigorously in uplifting the three or four years, what are the skills which social conditions in the people affected in we are looking for? Because they are telling areas. They built houses. They made water me it is not that we do not have jobs to offer. available. They played a role in restoration We have jobs. But when we interview of agriculture. And I know personally people we find that they don’t have the skills because I have seen in my own eyes that which we want in our institutions. So we armed forces of this country even helped in don’t want to enhance a reservoir of angry the constructions of latrines, of toilets in and frustrated young people. We want to that part of the country. These are not ensure that there is a co-relation between regular functions of the armed forces. But the education that is imparted in our because of the culture of our country the institutions and the skills for which there is social morals the value system based upon an identifiable demand in the market place. empathy and compassion which is the So these are some of the adventures that we hallmark of Sri Lanka’s culture. That was the have embarked upon. We are also looking nature of the role that was performed by the critically at our curricula which are obsolete Sri Lankan military. It is this fundamental and anachronistic. They have not been fact that is not taken into account. In revisited for a very long period. There must critiques of the present scene who find fault be in line with the needs of our society with the armed forces forget their methods of teaching. There is far too much involvement in national activity on broader emphasis on rote learning in memory that scale. students have required to commit their notes to memory, retain in the memory and So these are some of the remarks that I reproduce it at the examination that is would like to make to you on this occasion. I antithetic of the education. Education comes am very happy that you are having this 13th from Latin words ‘educate’ which is draw International Research Conference. I am out not to force in vast volume of actual very happy that you have chosen a topic that material into mind of the students. So is extremely appropriate. You have chosen a purpose of the education is to develop the more relevant topic for this time. As the analytical and the critical faculty of the Minister of Education also with the student to encourage him or her to think for responsibility for higher education in this himself or herself and apply that volume of country, I am very proud of the knowledge to face the challenges of life. So achievements of your institution, what you in the midst of all of this, in confronting the have been able to accomplish within so brief formidable challenges, I am very confident a time span. The needs of higher education that your institution, Sir John Kotelawala in this country are very urgent when more Defence University will render an invaluable people are clammaering for access to higher service. So I congratulate to you on your education, in our ministry, with the active achievements of the past and I wish you well system of Professor Kapila Perera who is for the future. I know that you will continue rendering a yeoman service in that regard, to do your country proud. And I thank you we are trying to bridge the gap between sincerely for the honour that you have education and employment opportunity. We bestowed upon me by inviting me as the are talking to the major Chambers of Chief Guest for these deliberations. Commerce they provide the jobs in the private sector to ascertain from them the Thank you employment opportunities that will be

7 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

8 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

Keynote Speech

Prof. Kapila Perera

Secretary, Ministry of Education, Government of Sri Lanka

Ayubowan! Wanakkam! Assalamu Alaikum! disrupted. And the feeling of those delays The Vice Chancellor of General Sir John due to the lack of security, and the Cheif Kotelawala Defence University, Major Guest elaborated in deep sense of General Milinda Peiris, the Chief Guest today comprehension how security is important my honorable Minister, Ministry of for the national growth. If I look at what is Education, honorable Professor G.L. Peiris, this traditional approach that is often based Deputy Vice Chancellors, Deans of the on defensive security policies as we had Faculties, Heads of the departments, the during my time at different ages. We had Secretary to the Ministry of Foreign Affairs, always defensive security policies. However, Professor Admiral Jayanath Colombage, all the persistence of strong security measures the foreign participants who are joining this generates inecure feelings. I hope you agree 13th International Research Conference at with me. If there are strong security KDU, all the presenters, moderators, session measures that generate insecure feeling as it chairs and all the distinguished invitees. reveals the presence of threats. So these are Thank you very much for inviting me to some of the things that people quote. Then deliver the Keynote Speech under the theme again the democracy, well-being and ‘Holistic Approach to National Growth and freedom are some of the elements that we Security.’ I am indeed honored and feel that we reduce this feeling of insecurity privileged to be here having witnessed the by reducing both threats and activities that very first one 13 years ago, and it happened we feel. Even if you take a house if you feel to be General Milinda Peiris who was the this insecureness due to lack of security this Vice Chancellor then as Major General and might not allow you to think, generate we witnessed the presence of the Chief analytical skills. You are always worried Guest as the Ministry of Higher Education, about the security. How to provide security Ministry of Research and Technology. to your children and for yourself? And then it hinders and it slows down entire process I would like to start with this quote from the of nurturing, acquiring knowledge. And then Chief Guest, “We do not want to have a that it is halting the growth. so you start reservoir of angry uncontented people.” I from the small households or individuals was one who had gone through in 1971, of then if you take as a whole family, a village, a course not in the country in 1988 -1989 and township and then provinces as a country, it then in then 1983 as a university student, basically retards the national growth. So, and many times during my academic career therefore, we need to have this thinking of where there were disruptions to education, holistic approach to national growth and as holding back the desire to fulfill or acquire you and I understand there are necessary knowledge with my colleagues, peers and and essential conditions when we learn the rest of the people due to the lack of mathematics for certain things. The Cheif security. I know how I felt then as a student. Guest emphasized repeatedly the essential I think I was in grade 4 in 1971, and then in elements and in our academic mathematics 1983 in my second year at this very same there are sufficient and necessary premises, the education of ours were conditions or essential conditions for

9 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law forming mathematical theories there are development. So instances of participation certain things. Likewise, it is essential to in definition of security needs would make have security for national growth. citizens able to feel at the center of development goals. So therefore, unlike in When it comes to economics, always and the past where we did not think holistically even for decades, the GDP strongly criticizes and the interrelations between the security the measure of development. Still the role of and the national growth. Then we will fail. economic systems neglecting the goal of Even the theories in the literature highlights global capabilities and expansion holds this this one. economic growth or national growth. But the concession of development based on the As far as Sri Lanka is concerned the glorification of individual success and the contemporary security concerns that we pushed capital accumulation hardly allows face as an Indian Ocean country are broader reducing insecurity and increasing freedom. and more complex, that need not be So security becomes an individual good and elaborated, than any state in our history. relies upon ineffective defensive policies This will continue to exist. We can’t say that that we have practiced in the past unlike in this will stop today, tomorrow, next year or the present. So development, well-being, in ten years’ time because the geopolitics security and freedom are strictly and the race for the arms business and interrelated. Individual capabilities imply economic development, all these things will collective capabilities. Even in free market continue to grow, sometimes exponentialy. economies often human needs such as food, So therefore, national security cannot be housing, employment, health care, family neglected and cannot be just let it go as the policies, fresh water, security and safety can Cheif Guest mentioned, even in a fraction of be put in a market under regulation or a second, it is very important. Otherwise collective governance, and those things even there won’t be any growth. As the Secretary the Chief Guest highlighted. The need for to the Education, in the present context the water, need for food, how the security-- food role played by ensuring a secure security and water security ensure the environment for the student to go and sit getting this national security when you the examination. They are not in a position combine all these types of security the to concentrate on answering the questions if national growth under war conditions. So the place is not secure. So if we are not able these goods are often under political debate to hold the exams and continue to postpone, as they are critical for development and then we cannot achieve and we cannot social cohesion. The more they are shared predict national growth. So in this context among the large part of the population the the role played by the national security is to less we experience social conflict and be commended as the Ministry of Education. political instability. Security hardly is I know personally the quick response to achievable individually. It is the result of ensure secure examination centers for all of more holistic thinking. Individual security us for the future of Sri Lanka. Under these and freedom implies the security and conditions even the identification of COVID freedom of all. As I mentioned before these origin in the recent past, you have to have are interrelated. And if you look at or if you peace of mind to concentrate on everything. study research and in future research all That is basically if you only think of one these studies can help in understanding place, one center out of 2,646 examination human capabilities and pathways towards centers, then there will be lack of security in collective security and enhance different centers. So therefore, you have to

10 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law think holistically. Only the one aspect of officer cadets together and they understand securing one place will not enable for us to the security roles in the air, at sea, on land. I continue this one and therefore the results am sure that it could have been the catalyst will come in future in terms of national then. Now you bring the third aspect the growth. So the range that concerns arise day-scholars. So this is holistic thinking. Like from threats to system that allows society to I started at the beginning it was not there control intergroup and interpersonal then. We had three academies that did not conflict to more recently reorganized know each other, but how had it come concerns associated with threats to social during the time when the national security and economic systems. Once these events was at risk. So ultimately the beneficiary is start to influence the policy and the national growth. The honorable Minister, economy of a country with a national the Cheif Guest mentioned how difficult it resilience, that country will perish. One way was for Sri Lanka to attract foreign direct of addressing this emerging situation is by investments. As I think Minister of promoting more and more research and Enterprise Development, Foreign Minister, development. Foreign Secretary. If you don’t have security and thrust, nobody would come. But when KDU, boasting with diverse nine faculties you train together military and civilians and through two new faculties to come, the with hand and hand, it would provide an Faculty of Criminal Law and the Faculty of ideal platform. The importance of civil- Technology, is going to expand and provide military relations and how KDU is opportunities and platforms for you to instrumental in developing the above think, ponder in a military environment and mentioned areas is to be commended. By inviting day-scholars giving the signal that is promoting civil-military relations through very important for you to mix each other education, a country could raise the understand the role of the military or resilience levels, like I mentioned, of security for the civilians, 22 million people communities. Honorable Minister spoke at in this country, how important the national length and elaborated that you have to have security and the training in a military set up a strong commitment and the political will to achieve the common goal of national to ensure the security of this country. If growth. So the KDU is at the forefront of these elements, instruments fail, the first researching the development and security thing that is going to effect is the education related problems holistically. A holistic of the future generations. Even for me, the approach is needed to understand Oxford graduate, Rohdes scholar, I am a contemporary complex situations and pupil. And this has provided opportunities circumstances. University education could and the responsibility to the government to inculcate co-values of security and ensure the security. So all spheres of activity development such as human dignity, will simultaneously grow ultimately integrity, democratic participation, culminating in national growth. sustainable development, economic equity, mutual understanding and respect and These are the few thoughts that I have to equality of opportunity. The three flags that share with you. I would like to extend my are behind bring all three forces together, gratitude on behalf of the Ministry of thanks to the KDA then, and how important Education for having me and inviting me to this mutual understanding in the war was deliver the Keynote address and set the understood and it helped to coordinate platform for the next two day deliberations. things in a better manner. You trained And I wish all the success in the

11 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law deliberations and creating more networks the people who have submitted papers, and have future directions for years to come presenters, moderators, and session chairs. in this context of national security that you You are plying a very important role in this have chosen today. Whatever that you are context of national security and the national going to do, base national security at the growth. forefront. So divided we lose together we Thank you very much! win. And I wish all the very best and thank you very much for all the participants and

12 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

Vote of Thanks

Dr. L Pradeep Kalansooriya

Conference Chair, 13th International Research Conference, General Sir John Kotelawala Defence University

It is with deep appreciation and gratitude responsibilities and guided their staff that I present this vote of thanks on behalf amidst their very busy schedules. of the organizing committee of the 13th This year’s conference has attracted six International Research Conference of the hundred and fifty plus paper submissions, General Sir John Kotelawala Defence which is a very clear indication of the right University. enthusiasm growing in the country First of all, I convey my heartiest thanks to towards research, particularly in Professor G.L. Peiris the Minister of development and security domains. I take Education, a distinguished academic who this opportunity to thanks all authors spared his valuable time with us on this share their studies on National Growth occasion. Sir, your gracious presence and Security in our conference. I also amidst busy schedules is truly an greatly appreciate our panel of reviewers encouragement and it certainly added the on the valuable time spent to review this glamour and value to this important event. large number of papers. I’m sure that your valuable resnses would tremendeously Professor Kapila Perera, the Secretary to supports to authors on enhancing their the ministry of Education, also a research studies. distinguishable academic and a senior military officer is a proud product from Ladies and Gentlemen, as you witnessed, our own institute. Sir, I greatly appreciate this was a new experience in the new your willingness without any hesitation to normal, after the present pandemic, and be our Keynote speaker today. therefore it was huge challenge to organize, coordinate and conduct research I would also like to take this opportunity conference of this magnitude on virtual to extend my appreciation and gratitude to platform enabling a wider participation of the Vice Chancellor, Maj. General Milinda both local and foreign participants. I thank Peiris for all his guidance and assistance all our participants attending the provided throughout the event and this conference online despite numerous event wouldn’t have been a reality and a difficulties encountered due to the present great success without your courageous situation. leadership under the current challenging situation today. Further, it is with great pleasure that I acknowledge the tremendous support and I would be falling my duties if I don’t assistance provided by academic staff of mention the exceptional support and all the faculties with all the Heads of assistance provided by the two Deputy Departments going beyond their regular Vice Chancellors who were there behind duties to make this event a success. the team guiding us through a difficult Similarly, I take this opportunity to time. I also would like to thank the Deans appreciate the contribution of the of all the faculties who shared the administrative and non-academic staff

13 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law whose commitment was essentially Finally, I have no doubt that all of those required in achieving the overall success. attending the two days seminar will make the best use of the opportunity to enhance Our sponsors, the financial support given their horizons and establish new bonds by our Platinum Sponsors, People’s Bank and networking while sharing their own and Bank of Ceylon and Co-sponsor, Abans knowledge and experience in a friendly Private Limited is highly appreciated. learning environment. Last but not least the officer cadets and In conclusion, let me take this opportunity day scholars who formed a very virtual to profusely thank my co secretaries, who component of the organizing teams in stood alongside me throughout extending every sphere and I believe that it was a unexplainable support and assistance with great learning experience and exposure exceptional commitment. which would help them tremendously in similar undertakings in the future. Thank you so much. I wish you good luck and all the best.

14 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

Plenary Session

The Role of Law in National Growth and Security

1515 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

Session Summary

Session Chair: His Lordship Jayantha Jayasooriya PC, Chief Justice of Sri Lanka

Rapporteur: Mr Managala Wijesinghe, Dean, Faculty of Law, General Sir John Kotelawala Defence Universiy

Chair of the Plenary Session in Law was appeared both in original and appellate His Lordship Jayantha Jayasooriya PC, courts mainly in the areas of Public Law, Chief Justice of the Supreme Court of Sri Commercial Law, Land Law, Industrial Lanka. Law and Criminal Law. He was an Examiner at the , a The first speaker, His Lordship Yasantha visiting lecturer in the Faculty of Law of Kodagoda PC currently serves as a Judge of University of Colombo, Deputy President the Supreme Court of Sri Lanka. He served of the Sri Lanka Bar Association (BASL) as a Deputy Solicitor General from 2005 to and a member of the Sri Lankan 2015 and as an Additional Solicitor Delegation to the Universal Periodic General from 2015 to 2019 at the Attorney Review at the 8th Session of the Human General’s Department. He was the Rights Council of the . He President of the Court of Appeal of Sri served as the Attorney General of Sri Lanka from 2019 to 2020 until he was Lanka from 2008 to 2011 and as the Chief appointed to the Supreme Court of Sri Justice of the Supreme Court of Sri Lanka Lanka. Formerly, he was a Public from 2013 to 2015. Prosecutor, and a Criminal Appeals Counsel who served as a Law Officer cum The third speaker Dr. Charika Marasinghe Legal Advisor to the Government of Sri holds a Bachelor of Laws (LL.B.) Honours Lanka for about 3 decades. He served as degree from the University of Colombo, Sri the second in command of the Criminal Lanka, and is an Attorney-at-Law of the Division of the Attorney General’s Supreme Court of Sri Lanka and a Solicitor Department, and also as the Secretary cum of the United Kingdom. As a Chief Executive Officer of the Presidential Commonwealth Scholar, she obtained a Task Force for the Recovery of State Assets Master of Letters degree (M.Litt.) and a (Proceeds of Crime) located overseas. Doctor of Philosophy degree (D.Phil) in Additionally, he had functioned as the International Law from the University of Director of the Institute of Advanced Legal Oxford, specializing in International Studies of the Incorporated Council of Human Rights and Child Rights Law. In a Legal Education. career spanning over 35 years, she has served as a Senior Lecturer in the Faculty The second speaker Justice Mohan Peiris, of Law of the University of Colombo, as PC was called to the Bar in 1975 and Deputy Chairperson and a member of the joined the Attorney General's Department National Child Protection Authority, and a in 1981 as a State Counsel, later serving as trainer and a resource person in the field a Senior State Counsel for over 15 years. of human rights, child rights and women’s During this time, he received training at rights at diverse conferences and the National Institute of Trial Advocacy at institutions, both local and international. Harvard Law School, the Centre for Police She was the co-recipient of the ‘Women and Criminal Justice Studies at Jesus and Engaged Buddhism Award’ (2008) of College, Cambridge and at George the Buddhist Council of Midwest, USA, for Washington University. After leaving the conceiving a counselling programme for Attorney-General's Department he started Tsunami survivors, and the recipient of ‘An practicing in the Unofficial Bar. He

1616 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

Outstanding Woman in Buddhism Award’ He also appears before other judicial (2009) from Thailand, for exceptional tribunals for state and non-state entities. development of wisdom and compassion He has held many prestigious positions in the protection of child rights. At the both at international and domestic levels, invitation of the Sri Lanka-India including the posts of Additional Solicitor Friendship Society, Dr Marasinghe General of the Attorney General’s delivered the 2014 Mahatma Gandhi Department of Sri Lanka, Justice of Appeal Memorial Oration based on her personal at Court of Appeal of the Republic of Fiji, experiences as a human rights and child Senior State Counsel at Attorney General’s rights lawyer who had travelled Department of the Republic of Seychelles extensively in the former war affected and Legal Advisor at the Ministry of areas of Sri Lanka. Foreign Affairs in Sri Lanka. He has been awarded the North Humanitarian The final speaker of the session, Rear Operation Medal and the East Admiral (Retd.) Shavindra Fernando PC Humanitarian Operation Medal for his holds a Master of Laws in Public service rendered to the as International Law from the University of Judge Advocate General and Director Colombo and Master of Laws in Corporate General of Legal Services. and Commercial Law from Kings College, University of London. He is currently in Transcribed speeches of the plenary active practice as a President’s Counsel speakers are continued in the following practicing in both Superior Courts and pages. Courts of First Instance in the areas of

Criminal, Civil, Corporate and Public Law.

1717 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

Sri Lanka, Its National Security and the Law

His Lordship Yasantha Kodagoda PC

Justice of the Supreme Court

My Lord Chief Justice, the elected governments, the more serious Former Chief Justice Honourable Mohan threats and attacks on national security Pieris, Dr. Charika Marasinghe, President’s took place in 1971, 1988-1990 and from Counsel Mr. Shavendra Fernando, the Vice the mid 1970’s to 2009. During nearly Chancellor of General Sir John Kotelawala thirty years of armed conflict and Defence University, Major General Milinda terrorism, at times, the intensity of the Pieris, the Dean of the Faculty of Law, attacks was such, that territorial integrity distinguished participants, ladies and and sovereignty of the country were gentlemen. seriously affected. Lawful governments were prevented from executing the writ of National Security of a country means the governments. As a direct result of the security of the country itself and that termination of the armed conflict and the includes the security of the State, the perpetration of terrorism by the security of the people of the country and elimination of the organized presence of its property. The protection of National the Liberation Tigers of Tamil Eelam in the Security is critical for the survival of the Northern and Eastern provinces, since people and the State. Maintaining national 2009, Sri Lankans witnessed a decade of security is the foremost duty of the State. peace, ending that peace, it was most During the pre-independence era of Sri unfortunate that, on the morning of Easter Lanka, the threats to the nation and the Sunday of 2019, the people of Sri Lanka people, came from invading powers and came under a serious terrorist attack. colonial powers. Unlike the pre- Unlike, previous threats and attacks on independence era, attacks of evil forces national security, which had a political came from within the country during the undertone, this terrorist attack brought in post-independence era. One such key force a new dimension to the root causes of tried to fragment the country with the namely, religious view of creating a separate sovereign state fundamentalism coupled with lunacy like in one part of , and another radicalism and extremism. That terrorist sought to destabilize the State with the attack, if at all signalled to one pointer view of causing governmental and namely, that Sri Lanka needs to remain governance related structural changes vigilant all the time, as attacks on national while intimidating democratically elected security can be unleashed at any point of governments through violent means. They time and can be due to multiple reasons did so, through ultra-constitutional means and root causes. They can also take and in direct violation of the criminal laws multiple manifestations. of the country. These forces have unleashed violence of unimaginable It is unfortunate ladies and gentlemen, magnitude and severe loss of life and that during the post-independence era of damage to property were also inflicted. Sri Lanka, successive governments leading the state of Sri Lanka, had to necessarily Apart from the unsuccessful coup in 1967, give priority attention to the protection of in that overthrowing two democratically

1818 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law national security thereby, retarding a prerequisite would be the prevalence of national, social and economic appropriate national security legislation, development and growth. Sri Lanka has such legislation would have components of remained a middle-income developing both substantive and procedural criminal country for too longer a period. This has law. When national security legislation been mainly due to the considerable should seek to provide it’s a matter that is resources and time that had to be spent on dependent upon the threat and the nature the protection of national security. It was of attacks on national security. National also associated with the devastation security legislation, ladies and gentlemen, caused due to attacks on national security. generally contains the following key Ladies and gentleman, the State has features: multiple instruments in its arsenal to – They create offences that contain respond to attacks on national security prohibitions of certain harmful based on the nature of the attack, its conduct amounting to attacks on intensity, its source, cause, methodology, national security. previous experience and of course prudence. The State can selectfrom – They also impose legal requirements multiple responses that are available. They that compel persons to act in certain are, the military, policy, legal, law stipulated affirmative manners with enforcement, criminal justice, social and the view to protecting national political responses. While some of these security. measures are aimed at the protection of – Such legislations also stipulates national security through the prevention punishments for violation of these of such attacks, others are aimed at prohibitions including affirmative responding to attacks on national security duties. and mitigating harm. Some mechanisms – National security laws, ladies and maybe used to achieve both these gentlemen, also provide a legislative objectives. Social and political responses framework and thereby, facilitate the are primarily aimed at addressing the root conduct of investigations causes and thereby, preventing the intoconspiracies, preparation, emergence and the escalation of situations attempts, abetment and attacks on that may explode into attacks on national national security. security. – They also provide for the arrest and The focus this afternoon, ladies and detention of persons believed to have gentlemen, of this paper, is on the law as a been involved in the committing of response to threats and attacks on attacks on national security. national security. As you could appreciate the law, law enforcement and criminal – These laws also provide for the justice are key elements of any legal institution of criminal proceedings, system. The law itself and the processes of prosecution and trial of offenders and law enforcement and criminal justice, are the management of judicially imposed founded upon a key concept namely, the penal sanctions. Rule of Law. That is a forfeiture of our Among the multiple national security Constitution. To enforce a law legislations Sri Lanka has, are the enforcement and criminal justice response Constitution and the particular article 157, to threats and attacks on national security, Chapter 6 of the Penal Code, the

1919 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

Prevention of Terrorism Act, the Public attacks on national security. These laws Security Ordinance, the Convention on the are no longer in force. Suppression of Terrorist Financing Act, the National security legislation, ladies and Suppression of Terrorist Bombings Act, gentlemen, deviates in multiple ways from the Prevention of Hostage Taking Act, the routine laws in this country. Therefore, Offences Against Aircraft Act, Suppression some argue that they are stringent laws in of Unlawful Acts of Violence at Airports comparison with the routine laws of the Serving International Civil Aviation, country and are draconian in nature. I do Suppression of Unlawful Acts against the not necessarily subscribe to that view. Due Safety of Maritime Navigation Act and the to some of the deviations found in national Prevention and the Suppression of Crimes security legislation it is necessary to very against Internationally Protected Persons carefully look at the manner in which Act. The last six of these items of laws that national security legislation should be I read out, relate to Sri Lanka giving effect enforced as well as applied and to its obligations under counter terrorism interpreted. While some of the criticisms international conventions. It is pertinent against national security legislation may to note, ladies and gentlemen, that though be unfounded, it is to be noted that the not typically classified as national security very nature of certain pieces of national legislation, the Police Ordinance and the security legislation may lend itself to be Army, Navy and Airforce Acts can also be abused and misused for collateral applied to mobilize responses to protect purposes. Furthermore, it is most national security. Though not typically unfortunate that the very nature of certain classified as national security legislation, features of national security legislation the Computer Crimes Act and the Financial and the manner in which they are at times Transactions Reporting Act can also be sought to be enforced facilitates illegal helpful in mounting judicial responses to activities such as the perpetration of attacks on national security. Of course, torture and other extra judicial criminal ladies and gentlemen, the Code of Criminal activities which necessarily infringe Procedure Act provides a legislative fundamental human rights. Unfortunately, framework upon which criminal in this country there is ample evidence in investigations into attacks on national support of that contention.Therefore, in security could be launched, criminal my view, ladies and gentlemen, the proceedings may be initiated and development of national security instituted and persons responsible for legislation must, on the one hand, take into such attacks prosecuted. This list of laws, account cotemporary forms and ladies and gentlemen, is not complete if I manifestations on threat and attacks on don’t mention that in the by gone era, the national security of Sri Lanka and also emergency regulations promulged from the global theatre relating to terrorism. On time to time in terms of the Public Security the other hand, I need to underscore the Ordinance, the Proscription of the fundamental importance of national Liberation Tigers of Tamil Eelam Act of security legislation being unconditionally, 1978, the Criminal Law (Special and I repeat unconditionally, compliant Provisions) Act of 1962, the Criminal Law with our own Constitution and the Act of 1962 and the Criminal Justice doctrine of the Rule of Law. Restrictions, if Commissions Act of 1972 have also been any, on the enjoyment of fundamental used to respond in multiple ways to rights, should necessarily conform to the

2020 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law restrictions that may be imposed in terms that would be developed in the future is of Article 15 of the Constitution. They compliant with Sri Lankas obligations should also be proportionate to the under International Human Rights Law existing or imminently likely threats. and Humanitarian Law and of course, fully compliant with the Constitution of Sri Having said so, ladies and gentlemen, I Lanka. must finally emphasise that it is of paramount importance that Sri Lanka In that regard, ladies and gentlemen, I develops efficacious legislations to replace wish to recommend to you, for your the outdated and much maligned Public consideration, the Counter Terrorism Bill Security Ordinance and the Prevention of of 2018 which was developed necessarily Terrorism Act. Doing so would be by a team of Sri Lankan legal, Military, Law necessary to efficaciously protect Sri Enforcement, Intelligence and Security Lanka’s national security by enhancing the Professionals and also vetted by the potency of the state to prevent attacks and Supreme Court for its compliance with the also to respond to attacks through Constitution. efficacious criminal justice processes. It is I thank you ladies and gentlemen for your also necessary to ensure that such laws patient hearing.

2121 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

The Rule of Law in the Globalized Society

Mohan Peiris PC

Former Chief Justice

Your Lordship the Chief Justice, His ultimate concern, political security, which is Lordship Yasantha Kodagoda, the Vice of overarching importance, and economic Chancellor, Major General Milinda Pieris, security, which underpins all other Dr. Charika Marasinghe, Shavindra considerations, to military, cultural and social Fernando President’s Counsel, Members of perspectives, which reinforce efforts in other the Faculty, members of the academia and areas, and the promotion of international finally, perhaps, the most important of the security, which provides support for stakeholders, the officer cadets and the measures taken in a national context. students. My dear students, a holistic approach of My dear students, I’m pleased that his this nature requires a focus on both Lordship Justice Kodagoda did mention the internal and external security. Internally, it parameters within which the whole concept is essential to promote development, of national development and national continue reform, maintain stability, and security must be structured upon. And I create a safe environment. Externally, we think, I was equally pleased, when his should promote international peace, seek Lordship the chief justice was pleased to cooperation and mutual benefit, and strive observe that there must be the contours to to bring harmony to the world. The national development and national security. nation’s security in the context of In other words, we have to have parameters. terrorism; hSomeland security and the And it is within that context, that I propose to security of our citizens are both of place before you for your discussion certain paramount importance. All initiatives matters which I thought you might find taken in this respect must be people- interesting to listen to. My dear students, centered, and implemented for the people, you will appreciate that sustainable growth, I on the basis of the people’s needs, and am really coining this term ‘sustainable with the support of the people. Security growth’ from the expression sustainable issues, both traditional and non- traditional, must be taken into account. development, sustainable growth and The national security system we envisage security must take cognizance as his Lordship will integrate not only political security was pleased to observe, must take and homeland security, but also security- cognizance of and strike an appropriate related military, economic, cultural, and balance with the Rule of Law and be social concerns, science and technology, equipped to protect against potential information, and ecological resources. dangers in these very difficult contemporary times. There is, therefore, my dear students, National Security doesn’t mean posting an urgent need to take a holistic view of security personnel all over the country. national security and national development. That’s not what it is. Issues pertaining to development must be considered as an By adopting such an approach, a full indispensable adjunct to security issues. spectrum of security issues is assessed, Development provides a basis for security, ranging from people’s security, which is the whereas security constitutes a necessary

2222 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law condition for development. Our national and possible national breakdown. That’s a security must also be viewed in the warning we should take seriously. context of international security. For the A growing phenomenon that we see is sake of our global community with a rapid urbanization. It is undoubtedly one shared future, we should all work toward of the key megatrends driving change in our goal of satisfying the world’s security society across the world. The frequency, needs in a way that is beneficial to all. We direction and speed of urbanisation means will continue to improve our national that it must be at the forefront of the security system, strengthen our national strategic agenda for any country, but security capacity, and defend our particularly in emerging economies such sovereignty, security and national interest as ours. But this isn’t the only megatrend as it concerns our development needs. that impacts on the agenda of today’s town That is something we must understand. planner. Another is demographic change, Two decades into the new millennium, the where certain areas of our country are components of national security itself ageing while birth rates in other parts of needs to be redefined. The traditional view the country are making the average that national security is related only to population younger. The socioeconomic security of territory from external characteristics of the influx of people into aggression needs to be changed. Internal expanding cities raises important policy stability and order and comprehensive issues. Who is coming, and what do they national strength of the country are bring with them in terms of both tangible equally important factors in protecting and intangible assets, particularly the and maintaining the security of the nation skills to make them employable? This state. leads to another of our identified megatrends – technological breakthroughs We have been through a long-drawn – which (if managed well) holds the conflict in our country which led to promise to provide parts of the solution bloodshed and disorder and posed a for the future sustainable management of serious threat to national security. You the country. As HE the president observes, will agree that the path towards smart solutions to urban problems need minimizing social conflict depends on technology as an enabler and he keeps what measures are taken nationally in reminding of that need consistently. improving individual security. The essential components of such security are A question that I would wish to pose is as in the realms of food, health, education etc. to what opportunities a sustainable Security threats can also arise out of approach to development offer to environmental degradation. It has been communities in developed and emerging our experience that where there is a economies alike? Urbanization is not so multitude of problems relating to much of a threat to sustainability as many personal, economic, political or people think. The quality of growth that environmental security, there is a risk of countries can achieve is strongly linked to breakdown of national security. their power to address social, Policymakers will tell us that selected environmental and economic issues in a indicators of human security provide us cohesive and proactive manner, while with early warning on whether a country making the most of future opportunities. is heading towards social disintegration This is what we call the “new capitalism” – managing and developing all capitals

2323 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law holistically for the development of a mean any government under any law. It sustainable local economy. It is in this means the rule by a democratic law-a law context that I will focus on the imperatives which is passed in a democratically elected of the Rule of Law in our pursuit to a rapid parliament after adequate debate and movement of development and the discussion. Likewise, Sir Ivor Jennings growing need for national security. In the says- case of this modern approach to "In proper sense rule of law implies a governance, you might ask yourself the democratic system, a constitutional question whether there is room for the government where criticism of the Rule of Law? Is the rule of law simply government is not only permissible but rhetoric, or a universal principle? No also a positive merit and where parties doubt the Rule of law has gone through based on competing politics or interests turbulent times in contrast to the other are not only allowed but encouraged. concepts, and has been subject to the Where this exist the other consequences of severest of critique. Today Dicey's theory rule of law must follow". of rule of law cannot be accepted in its totality. The modern concept of the rule of I ask the question - Is the Rule of Law law is fairly wide and therefore sets up an simply rhetoric or a universal principle? ideal for any government to achieve. This You will recall that at one time of our concept was developed by the jurisprudential history, it was thought that International Commission of Jurists. It is any form of discretionary power was known as Delhi Declaration of 1959 which incompatible with the Rule of Law, as it was later on confirmed at Logos in 1961. was thought to be the sure way to arbitrariness. You will appreciate that According to this formulation. today that would perhaps be an "The rule of law implies that the functions overstatement of the principle, and a of the government in a free society should product of academic overreach. Today be so exercised as to create conditions in exercise of discretion is an indispensable which the dignity of man as an individual element in any modern administrative is upheld. This dignity requires not only structure. Discretionary power therefore the recognition of certain civil or political must be exercised in good faith and in rights but also creation of certain political, consonance with the Rule of law. In other social, economical, educational and words, we can never have unbridled cultural conditions which are essential to discretionary power. This must be borne the full development of his personality". in mind in deciding the parameters of national growth and national security. We According to Davis, there are seven have to remember the decision-making principal meanings of the term “Rule of process must be within the confines of law: (1) law and order; (2) fixed rules; (3) legality; procedural propriety; rationality elimination of discretion; (4) due process or reasonableness and as the Europeans of law or fairness; (5) natural law or would say – within the confines of the observance of the principles of natural doctrine of proportionality. It might be justice; (6) preference for judges and well to remember that this supplies to our ordinary courts of law to executive Courts themselves, who are trustees of the authorities and administrative tribunals; Rule of Law. and (7) Judicial review of administrative actions. So finally, it may correctly be said The topic is presented by relating to a real- that rule of law does not mean and cannot life story which brings out a well-known

2424 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law generalization by the executive to this My dear students, as academics say, few much misunderstood principle. A Greek political concepts have globally accepted Professor of International Law was asked meanings. As you heard in what the North by the United Nations to assist a country in African Ruler said of the concept of North Africa to fall in line with the democracy, this approach also applies to international standards followed in the the concept of rights, liberty, justice and treatment of political prisoners. The freedom and to law itself. Greek Professor, having spent quite some Amidst all the discussion of the national time in that country, had one day, to security and development, and the present his report to the Ruler of that enthusiastic discussion of the rule of law, country. Having done so, the Ruler we observe naked violations of the rules of observed that the important part of that equity and fairness. I would probably report required the Government to venture the observation that the term Rule conduct itself in consonance with the of Law is one to which lip service is paid established standards of democracy. The without pausing to think as to what these Ruler had point blank rejected such a simple but cogent words really means in proposition. The Ruler had said “you designing a holistic approach to national Greeks, you think you invented security and development. democracy, that has no meaning”. A few days later they re-presented the report We are reminded of Sir Ivor Jennings who with amendments. The amended report describe the Rule of Law as something required the Government to act in which threatens the fair distribution of accordance with human rights. The Ruler wealth and power. We have Prof. Titmuss was extremely displeased and went on to who says the Rule of Law is one which express his reservations by saying “I fear, would introduce a pathology of legalism the bodies such as Amnesty International into relations between the subject and or Human Rights Watch have influenced State. Prof. Morton Horowitz of the you unduly”. The meeting ended there. Harvard Law School says the Rule of Law The Good Greek Professor returned with enables the shrewd, calculating and his team and after much deliberation, re- wealthy to manipulate its form to their presented the report to the Ruler with a advantage. new formula. They presented the report Look around us, from East to West, from the third time, and this time, they required North to South, we see strife, turmoil, the Government “to act in accordance with aggression, death, devastation of life and the standards of the Rule of Law”. To their property, amidst our drive for growth and utter surprise, the Ruler was pleased, and national security. With all the mayhem he said “fine, that’s perfect, nobody will around us, academics seem to suggest that know what that term means”. How true the Rule of Law is a force entirely for the this is, for we see today, globally, the good, and which advances democracy. It is words ‘Rule of Law’ are generously spoken commonly said and heard that for rapid of notwithstanding the naked violation of development and the need for achieving the basic rules of equity and fairness. I effective national security requires the would not be wrong to say that this is a exercise of discretionary power. But this is term to which lip service is paid in not exactly true. We have seen the Rule of generous doses without stopping to think Law gaining tremendous popularity, of what these simple, but cogent, words notwithstanding its turbulent history. Its really mean. survival, it is said, has been attributed to

2525 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law the fact that it is entrenched in the legal national security. In the context of and political cultures in the civilized globalization and continuous economic world. How then could discretion be integration that we have seen in recent exercised, having regard to the times, the relationship between the overarching need to preserve the Rule of economy and national security has Law? How can we embark on rapid become increasingly interlinked. It is these development and preserve national connections that represent both security by the exercise of discretionary opportunities and potential threats to the power for the public good? country’s national security. The open and interconnected nature of our economy It might be interesting to note that leads to vulnerabilities from both internal Parliament and the Executive are also and external threats. Having recognized subject to the Rule of Law. We see this in this, economic security has emerged as an civilized jurisdictions all over the world. I important strategic priority for ask the question – is the system of justice governments. in a globalizing world under strain in finding accommodation for the Rule of Given these growing international Law? It must be borne in mind that the interdependencies within our national development process and concerns for security as well as recent concerns of the national security must be within the environment there is a recognized need confines of the law. Public officials are not for assessments of the potential risk that expected to exceed their power and are may emerge as a result of such economic expected to apply the law equally. National activity. growth, national development or national Some of the questions that emerge are; security cannot be at any cost. firstly, how can national security be To be able to sustain this balance, it is defined? Secondly, as to what can be necessary that we ensure access to justice. learned from academia about the relation Prof. Jeffrey Jowell, an eminent jurist, says between the economy of a county and the that the Rule of Law does not rule only by various aspects of national security? law. It is a much richer concept that must Understanding national security has be appreciated. The development process evolved over time. It has been shaped and and the national security framework must influenced by historical events. In broad be conducted within the structure of terms, stability, safety, protection and recognized rules and principles which freedom from fear, threat or conflict are restricts discretionary power. considered some of the core themes of national security. It can also be defined in Another question I have for you is whether terms of the values that people hold, such national growth and national security be as physical safety, economic welfare, achieved side by side? How do we manage autonomy and psychological wellbeing. these competing factors? The key to the answer is the principle of ‘sustainable National security today has become development’. The problem appears to be associated with preventing disruptive the equitable application of the principle effects on society, economic performance in the different circumstances we apply it or critical processes such as democratic to. As Justice Weeramantry puts it, the decision making. The interconnection difficulty is steering a course between the between national security and economic need for development and the need for growth has grown, as globalization and environmental protection which is part of

2626 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law economic integration have increased over equally. The application of the law must be the last few years. fair and impartial. It is therefore imperative that in arriving at decisions With the experience of successive wars with regard to national growth and and conflicts, and the proliferation of the national security, that the law must be Nation State throughout the 19th and 20th accessible. What I mean by that is that the centuries, realist explanation of behavior law that has been applied, must be easily among States dominated the discussion, understood. It must be clear. It must be highlighting the importance of national predictable. Secondly, the legal principles preservation. In terms of the realist that apply to national growth and the thinking, certain common themes appear maintenance of security must be applied in relation to national security, inter-state having regard to law, and not discretion. aggression, the fear and threat of violence Any decision making process must be from hostile States, and a focus on the exercised lawfully, fairly and reasonably. military and the ability to respond in order There must be equality before the law. to preserve itself and its security – in other National growth and national security words its territory. must take cognizance of human rights; any With the establishment of the League of disputes with arising out of or concerning Nations, there was a liberal school of national growth and national security thought inspired by writings by Emmanuel must be resolved without delay or undue Kant. National growth within a critical expense. Any inquiry or legal procedure political economy is the mutual pertaining to, arising out of or concerning constitution of the economic and political national growth or security – must be fair, sphere and the security threats posed by and must be compliant with the the unequal divisions of power and obligations in international as well as welfare. Academics supporting this theory national laws. are reluctant to treat the economy and I might wind up by reminding you of what national security as separate fields. If one Plato famously said; “if the law is the was to look at it through the lens of the master of government, and government is theory of critical political economy, the its slave, then the situation is full of security of the State may be threatened by promise; and may enjoy all the blessings the unequal divisions of power and and all what the Gods shower on the welfare, and by transnational corporations State.” The Rule of Law, ladies and that are able to influence these conditions. gentlemen, does not rule only by law – as I There is an overall consensus that poor said before it is a much richer concept. It is governance and corruption plaguing many again said by Prof. Jowell, that the Rule of developing nations are the principal Law in democratic governance is not a obstacles to progress. These obstacles theory of State but a simple practical guide invariably lead to the feelings of to the bare essentials of how power has to desperation, apathy and determinism. It is be exercised, even in the cause of national therefore necessary that we seek the growth and national security. That it is not protection of the Rule of Law as a guiding a monopoly of the developed world, but a concept in our quest for national growth fundamental need to recognize the dignity and security. Members of the public are of humankind. That it must be recognized expected to comply with the law. Public against other values such as the right to officials are not expected to exceed their life, to right to secure existence. And for power and are expected to apply the law

2727 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law that reason, could not be compromised indispensable principle of good arbitrarily. governance and to establishing a world order where all humankind can live in You will finally appreciate that to callously peace and in dignity. and recklessly disregard the Rule of Law in achieving national growth and national Thank You. security, can lead to national chaos. I want you to appreciate that it is a worthy objective to be upheld and an inexplicably

2828 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

Holistic Approach to National Growth and Security: A Global and Local Perspective

Dr Charika Marasinghe

Senior Consultant in Human Rights and Child Rights; Former Senior Lecturer, Faculty of Law, University of Colombo; Former Deputy Chairperson, National Child Protection Authority

Your Lordships, distinguished speakers, considered when treating them. We are the Vice Chancellor, faculty members and deliberating on the theme entitled holistic students, I thank the Vice Chancellor of approach to national growth and security General Sir John Kotelawala Defence at a critical turning point in the history of University, Major General Milinda Peiris, humanity. We are experiencing at first and the Dean of the Faculty of Law, for hand, the ramifications of our ignorance of honouring me with this invitation to the interdependence and deliver a talk on the timely topic, “Holistic interconnectedness of all phenomena. The Approach to National Growth and Security COVIDpandemic is challenging our A Global and Local Perspective”. existence as human beings on this planet earth. At the outset, I would like to say that I’m sharing my views today with you, not as an The COVID pandemic is challenging and academic, but as a human rights and child also questioning the way we humans have rights practitioner, who has followed a interacted with nature in all its integral non-adversarial approach, in making aspects. It is equally making us question various interventions in the human rights the way we have, all over the world, and child rights field. It is significant that governed our countries for decades in the topic I have chosen for my talk, thoughtless ways and exploited the highlights two important issues namely, natural resources of the planet for the sole national growth and security from a purpose of human flourishing and human holistic perspective. I would like to begin growth. We have not considered the long- my talk by examining the word ‘Holistic’, term effects of this on the natural world of because it is only when we possess a clear which we are an intrinsic part and on understanding of this word that we will be which we depend all our physical, even for in a position to do justice to the topic of that matter, spiritual needs. In other this conference. words, COVID-19 is putting a question mark over our very existence as humans The term ‘Holistic’ is derived from the on this planet. Humanity has more or less Greek word ‘Holos’, meaning ‘whole’. vested with the belief that it can conquer Holism expresses the idea that everything any enemy by the use of mighty forces, and is part of the whole, as all parts are the most sophisticated weaponry. With indissolubly interconnected. Nothing can this belief, many wars had been waged, exist independently of the whole or can be won or lost, across centuries by humans understood without reference to the against fellow humans. But, the war we are whole. If I may explain further by referring waging at this hour, globally, is a war to medicine, in medicine holism means against a tiny virus, not visible to our that the whole of a sick person;their mind naked eye. and the way of life, and not just their body and the symptoms of the disease should be

2929 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

A billion-dollar armoury of sophisticated inability to measure the real state and weaponry or a fearless armed force cannot quality of all aspects of life of the people fight on our behalf and rescue us from the and of the nation. crisis that we are faced with today. The Lately, we have seen some more holistic shere magnitude of the COVID-19 virus is approaches to this being applied by demonstrated by the fact that, COVID-19 certain countries. Bhutan for example, related deaths in the US have surpassed employees an indicator called gross American lives lost in World War-I. national happiness (GNH), to measure According to Geopolitical and their economic condition and well-being. It Geoeconomics analysts, the world is places a great importance on preserving experiencing very serious COVID-19 the nation’s ecological heritage. Some related economic crises such as, mass discussions are also underway in India, to unemployment, increased economic develop and ease of living in debts, which inequality and community desruption. We is aimed at measuring the quality of life are witnessing just the tip of the ice burg and sustainability, as well as economic and deeper challengers are yet to be health. Thus, it measures the all aspects of witnessed or experienced. lives that people truly value. Who can predict with certainty that the If we approach national growth from a COVID-19 will be the last of its kind to holistic perspective, I emphasise that it attack humanity. In this context, I believe, should encompass the sum total of human it is very opportune to approach the growth of our country. I would like to subject of national growth and security quote Article 27(1) of the United Nations from a holistic perspective and Convention on the Rights of the Child to comprehend where we have gone wrong substantiate my point. It states that, as human species, then perhaps we can “States parties recognise the right of every transcend this crisis with insightful child to a standard of living adequate for strategies strongly grounded in our Asian the child’s physical, mental, spiritual, philosophical traditions and values which moral and social development.” This recognise, that we are part of a process provision truly embodies the concept of that intrinsically connects and sustaining holism. In this holistic sense, I believe that us all in intricate patterns of mutual national growth should represent, reflect causality. and epitomise the total human personality Applying this eastern concept of development of its citizenry in five interdependence and interconnectedness domains; physical, mental, spiritual, moral, of all phenomena, let us now turn to the and social. The dangers of placing sole or two subjects of national growth and excessive emphasis on physical security. For decades we have understood development and ignoring the mental, these terms in the narrow sense of the spiritual, moral and social dimensions will words, for an example, national growth is in the long run cause serious harm to understood in terms of economic growth. national growth and society as a whole. It We have measured it with the yardsticks will also post unprecedented challenges to of Gross National Product (GNP) or Gross the security of a nation. While fostering Domestic Product (GDP). However, the national growth based on appropriateness of GDP as an indicator to interconnectedness and interdependence measure the economic well-being of a of all aspects of national life, we must nation is being questioned, due to its remember that this must include the most

3030 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law vulnerable, the marginalised and the For a nation to thrive security approach impoverished. The national growth of a from a holistic perspective should country has no meaning if it fails to fulfil embrace physical security, psychosocial the basic needs of the poor and the security, digital security and I would also marginalised. In other words, holistic add ecological security, specially in the approach to national growth must not COVID-19 pandemic context. I might add leave anyone behind and should not be that all nations are now completely driven by the exclusive needs of the most interlinked and national security cannot powerful and wealthy in our nation. be considered without considering international and global security. Does not The holistic approach to national growth holism take us in this direction? also means caring for the earth. It means preserving and fostering our biodiversity; I would like to recall that we are a nation the seeds, soil, water resources, the fauna that has lived with a 33 year long war and and flora, and clean air. It means above all two insurrections in the south. Although that we should not engage in selfish we have overcome three major violent exploitation of nature’s wealth. This will encounters, the war that we had been simply endanger our existence and the waging against each other, decade after existence of all the other species. The decade, generation after generation, holistic approach to national growth also continues in our hearts and minds. I would demands that we put an end to say the Sri Lankan psyche, we are corruptions, wastage and the misuse of the entangled in memories, stories, opinions nation’s resources and worth, and instead and views about what happened in the ensure their more equal distribution for past. We are engaged in an unending the well-being of all Sri Lankans. ongoing dialogue with ourselves and others, justifying our hostile reactions and Turning to the term ‘security’ in a unable to comprehend the way to simplified way, it can be defined as transcend our collective suffering and look activities involved in protecting a country, beyond. building or a person against attacks, danger, threats, etc. In the common We have failed to understand that our parlous, we anticipate a threat, a danger or hatred, anger, fear and ill will against each an attack from an enemy within or outside other have contributed to our collective the territorial boundaries of a country. In suffering. As a nation, we need to the presentday context, is it appropriate to investigate our collective suffering; the Sri confine the definition of security to this Lankan wounded consciousness, hateful narrow domain? Specially, considering the consciousness, egoistic consciousness, and security, the so-called security challengers dominant consciousness without blaming caused by the fourth industrial revolution, and accusing each other. This collective, namely the ‘internet revolution’ and also wounded, hateful, egoistic and dominant the new normal precipitated by COVID-19 consciousness has unfortunately set into pandemic. When approached from a every aspect of our life be it public or holistic perspective, security cannot be private. This I consider as the biggest taken in isolation and in a fragmented security challenge that we are facing at sense. On the premise that all phenomena this critical hourand also, the biggest are interdependent and interconnected, stumbling rock in achieving the vision of security too is very much intertwined with the present government, “Vistas of national growth and cannot be separated. prosperity and splendour”. From a holistic

3131 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law approach, if security is to be a progressive infrastructural development should go contributor to individual and national hand in hand with heartware; growth in growth, while upholding the rule of law, personal development and social values. equal application and equal protection of As we celebrated the 150th anniversary of the law, the entire security apparatus Mahatma Gandhi this month, I would like should contribute towards physiological to end my speech with three quotes by and psychosocial security of our people Mahatma Gandhi. The first quote by and eradicate fear, anxiety, freight, alarm, Mahatma Gandhi beautifully captures the panic from the hearts and minds of our Sri importance of individual growth vis-à-vis Lankan consciousness. material growth. “Historically we are a country that has proudly spoken of a When talking about the holistic approach cultural heritage that had struck a balance to national growth and security, I would between material growth and individual like to refer to Singapore, which became a growth from a holistic perspective. The first world nation from a third world concept of ‘Dhanyagara’; land of plenty, nation within just one generation. ‘Dharmadhweepa’; land of righteousness Singapore has come a long way since amply speaks of this cultural heritage. independence, and throughout its Mahatma Gandhi believed “real wealth is economic progress, the governments of in people, not in gold or silver and the true the date reiterated their commitment to veins of wealth are in flesh”. He said that promote a gracious society. Addressing the the final consummation of all wealth is in 1996 national day rally, then Prime producing as many as possible the most Minister Goh Chok Tong emphasised that number of full breathed, bright eyed, and Singapore should develop its economy, but happy hearted human beings”. The COVID that economic growth should be pandemic has taken us back from the complimented with personal development globalization drive that we embarked and embrace social graces. The Prime upon in 1977. I think it is putting us on a Minister further stated that, we need to go new dual carriage way called beyond economic and material needs and ‘Glocalization’ which reminds us to value reorient society to meet the intellectual, more what is local and more sustainable, emotional, spiritual, cultural and social both in terms of people and land. In this needs of their people. On the eve of the connection I would like to share the national day of Singapore in 2012, Prime second quote by Gandhi. He said, “I do not Minister Lee Hsien Loong emphasised that, want my house to be walled in all sides improving hardware like new housing, and my windows to be stuffed. I want the flats and more metro train lines is just one cultures of all lands to be blown about my aspect. He said, strengthening our house as freely as possible. But I refuse to heartware traits such as mutual respect, be blown off my feet by any”. Finally, I care and compassion meritocracy and would like to share this quote that has integrity is more important. some bearing on the security that we are Mr. Lee highlighted that Singapore’s aim is talking about. Mahatma Gandhi said, “I not about being a wealthy and modern have three enemies. My favourite enemy, society. He said just as important is the one most easily influenced for the nurturing a society that is caring. The better, is the . My second reflections of the prime ministers of enemy, the Indian people, is far more Singapore amply demonstrate that difficult. But my most formidable hardware; economic growth and opponent is a man named Mohandas

3232 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

Karamchand Gandhi. With him I seem to have very little influence.” Thank you very much for your beautiful presence at this conference. Thank you.

3333 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

The Need to Strengthen the Legal Framework to Ensure Security Concerns

Rear Admiral (Retd.) Shavindra Fernando PC

Deputy President, Bar Association of Sri Lanka; Former Additional Solicitor General; Former Judge Advocate General, Sri Lanka Navy

Your Lordship the Chief Justice, Justice immediately after the end of the 30-year- Kodagoda, Mohan Peiris, President’s old war, the economy grew at an annual Counsel, former Chief Justice, Dr. Charika average rate of 6.5%. It was particularly Marasinghe, ladies and gentlemen. impressive in the three years after the end of the war recording a GDP growth of 8% to It is not a very envious task to come as the 9.1% showing continued high growth fourth speaker after three eminent and trajectory. However, this momentum broke eloquent speakers have come and delivered with growth declining substantially to 3.4% very interesting speeches before me. in 2013. During the five-year period from However, I will try to live up to 2014 to 2018 the average annual growth expectations. First of all, I must say I’m increased to 4.2%. Moreover, growth had privileged to associate myself with the continued to moderate since 2015 ending International Research Conference of with 3.2 growth in 2018, the lowest in 16 General Sir John Kotelawala Defense years. Due to the economic impact of the University under the theme ‘Holistic Easter Sunday attacks in April 2019 growth Approach to National Growth and Security’. was expected to be 3% or less in 2019. I’m thankful to the Vice Chancellor, Major However, Sri Lanka managed to return to a General Milinda Peiris and the organizing sense of normalcy by stagnating at 3.7%. committee for inviting me to be a speaker of After an average growth of 2.3% in 2019, the plenary session in law to be held under economy contracted down to -1.6% in the the theme the Role of Law in National first quarter of 2020. This decline, a first in Growth and Security. I have decided to 19 years, was driven by weak performances speak on the topic ‘the Need to Strengthen of construction, textile, mining and tea the Legal Framework to address Security industries. This is due to the COVID-19 Concerns’. Sri Lanka as you know is a health crisis which impacted economy’s developing country with a population of activity severely since the first quarter of approximately 21.8 million, bearing a gross the year. High frequency indicators suggest domestic product or GDP per capita of 3852 the growth has faltered in the second USD in 2019. quarter, as curfews island wide impeded in After the conclusion of the war which economic activity and global demand plagued the country for 30 years, Sri Lanka remain weak. Moreover, the closure of experiences an economic growth at an airports to tourists between April and average of 5.3% from the period of 2010 to September brought tourism activity to a 2019. Although national growth has slowed standstill. Why I went through these down in the previous years, Sri Lanka statistics was to show that a security repurposed its peace dividend after the end situation or a national disaster could have of this war towards reconstruction and severe consequences to the national further growth. In the five-year period from economy or to national growth. 2009 to 2013, which was the period

3434 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

Ladies and gentlemen, the security of a state terms of the several articles of the is one of the prime responsibilities of a Constitution analyzed in this opinion and government towards its people. It is in this upon interpreting its content in the context context that under our Constitution, the of the Constitution taken as a whole, the President of the Republic is the Commander plenary executive power including the in Chief of all Armed Forces. He has defence of Sri Lanka is vested and reposed unfettered discretion and power of in the President of the Republic of Sri appointing the commanders of the armed Lanka. The minister appointed in respect of forces. Under article 33 (2) (g) of the the subject of defense has to function within Constitution President has power to declare the purview of that plenary power thus war and peace. Under article 33 (a) the vested and reposed in the president. president shall be responsible to Parliament So, the Constitution gives that power to the for the due exercise, performance and Head of State, the President of the Republic, discharge of his powers, duties and because of the importance of security of the functions under the Constitution and any state. National economy and national written law including the law for the time growth are largely dependent on the being relating to public security. In a security and stability of a nation. In Sri Supreme Court Determination SC Reference Lanka, our economy is dependent largely on 2 of 2003 five judges of the Supreme Court tourism and foreign investment. Those are including Chief Justice Sarath N Silva, held not the only factors but those are two key inter alia ”we have to express our opinion factors. Before a person could decide to accordance with the Constitutional make Sri Lanka his or her tourist determination made by bench of seven destination or where a foreign investor is judges of this court that executive power considering investing in Sri Lanka, one of being a component of the sovereignty of the the primary concerns would be the security people including the defence of Sri Lanka is and political stability of the country. In the reposed and exercised by the President and event that either a prospective tourist of any transfer, relinquishment or removal of foreign investor is not satisfied with the such power from the President will be an security and the political stability of Sri alienation of sovereignty which is Lanka it can be rest assured that he would inconsistent with Article 3 read with Article rather choose another destination for his 4 being entrenched provisions of the travel or investment. Therefore, the security Constitutions”. of the state has a huge impact on the In the same determination it was further economy of a country and thereby the held, and I quote, “those powers including national growth of the country. It is the checks and balances have to be pertinent at this stage to consider if there exercised by the respective organs of the are adequate laws to ensure that there is government in trust for the people for the security, and law and order in Sri Lanka. good governance of Sri Lanka and the While in a general context, the existing laws establishment of a just and free society as are considered sufficient to meet ordinary laid in the Directive Principles of State law and order situations, what needs to be Policy contained in Article 27 (1) of the examined is whether existing laws are Constitution. It is in this background that sufficient with regarding to dealing with a we state the opinion of this court in terms of situation of terrorist attacks or economic Article 129 (1) of the Constitution in respect attacks which maybe aimed at high political of the first question in the reference, that in targets or economic targets. In both these

3535 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law instances in the event of such an attack it force that could be used to deal with acts of could have severe consequences to the extremism and/or terrorism or to prevent a economy and national growth of the threat of such acts. As such it is imperative country. I will not endeavour to examine the to examine if the PTA is sufficiently normal penal laws that exist in our country stringent to cater to situations that could which could cater to a normal law and order pose a threat to the national security of a situation. During the last five decades Sri country. One of the main drawbacks of the Lanka faced the following emergency PTA is that offences as described in section situations. 2 of the Act mainly deal with hostile acts against specified persons. ‘Specified The 71 insurrection, communal violence in persons’ is interpreted in section 31 of the 1978 and 1983, the insurgency during 1987 Act and does not include ordinary civilians. to 1990, over three decades of terrorism up In a present day context, where countries to 2009 and the Easter Sunday terrorist have to deal with international terrorist attacks of 2019. In all five situations organizations that select civilian targets to mentioned above it was clearly established achieve its purposes it is my opinion that that the normal penal laws were grossly the PTA is grossly insufficient to control a insufficient to control the law and order of situation where a nation comes under a Sri Lanka and the security of our country. terrorist attack or to subsequently convict The Public Security Ordinance which has and punish its offenders. During the period been in existence since 1947 is one of the from 2015 to 2019, the then regime did not special laws that can be used during an consider the security of the country as a emergency situation. Under the Public priority. In facts steps were taken to repeal Security Ordinance, the President is the PTA and draft a Bill named Counter empowered to declare a state of emergency Terrorism Bill which was a diluted version and has the power to make regulations to of the existing PTA. This subsequently came ensure that the national security is not into public domain. compromised. Such regulations can derogate from normal laws. Such It is now public knowledge that the Easter regulations, although named regulations, bombings of April 2019 was made possible constitutionally has the force of law. largely due to the then regime’s lack of However, in the event the President preparedness to deal with such a situation declares an emergency he has to go before in which hundreds of lives were lost. It is Parliament and the continuance of pertinent to note that one of the reasons emergency would depend on the approval why the terrorists carried out such attacks of it by Parliament. In addition, under was to get international publicity and section 12 of the Public Security Ordinance finding Sri Lanka an easy target due to it empowers the President to call out the security not being given a high priority at forces in any area where he feels there is a the time. In this context, it is my view that threat to public security in order to assist strengthening the PTA or bringing new laws the police. With that the forces get police to strengthen the security of the country is powers. The Prevention of Terrorism Act or of a paramount importance. For this the PTA which came as a temporary purpose, after the Easter bombings, the Sri provision act in 1979 is now part of the Lanka Bar Association set up a committee to permanent laws of Sri Lanka. The PTA is the study the existing PTA, the proposed Bill; only law available at all times, including Counter Terrorism Bill and to examine a during periods where emergency is not in fresh and recommend new amendments to

3636 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law either to improve and strengthen the economy and national growth it is Prevention of Terrorism Act or to imperative to strengthen our legal recommend new laws to curb terrorist acts. framework to ensure not only the security In addition, recently the Justice Ministry has concerns but also to ensure that foreign appointed committees to look into investors or tourists as the case maybe feel amendments required to the existing civil, that Sri Lanka offers a safe and secure criminal and commercial laws. Therefore, it climate, a safe environment for them to is my view that it is imperative that reforms confidently choose Sri Lanka as one of their to the existing PTA should be prioritized. In destinations for investment or tourism. conclusion, I am of the view that if we are to Thank you ladies and gentlemen. look forward to a growth in our national

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T

Technical Sessions

3838 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

Technical Session 1: Session Summary Session Theme: Expanding the Horizons of Commercial Law for National Prosperity

Session Chair: Dr. Chathura Warnasooriya

Technical Session I on Law was held on the contemporary challenges in light of the sub theme of ‘Expanding the Horizons of feminist jurisprudential interpretations. Commercial Law for National Prosperity’ Second presentation was on Contracts and the session was chaired by Dr. Formed During Frustrations and Force Chathura Warnasooriya. Dr. Warnasuriya Majeure: An Anti-Crisis Shield for holds a Ph.D in Law from Brunel Consumer Protection against Boilerplate University London and an LL.M in and Limited Liability Clauses by SM International Trade Law from the Anuruddika G Senevirathne. Her main University of Wales Cardiff’s Institution. finding was the legal error in application Whilst practicing in all areas of general of force majeure and frustration principles commercial litigation, Dr. Warnasuriya has on contracts formed during impediments worked as an Associate at Global Solicitors, Wembley in the United RMRKK Rathnayake presented her Kingdom. He possesses experience in research on The Effectiveness of the international business and commercial Piercing of Corporate Veil under Sri negotiations in countries across the Lankan Law: A Comparative Analysis with . His expertise is broadly in the UK. Her research was an evaluation of the areas of Corporate and Commercial laws, adequacy of Sri Lankan statutory with particular emphasis on International provisions and case laws regarding the trade finance. He is also an Attorney-at- corporate veil piercing doctrine compared Law of the Supreme Court of Sri Lanka to the UK jurisdiction with over 18 years’ experience as a legal Co authored research paper was Counsel. He holds and has held a number presented by YP Wijerathna and BKM of visiting academic appointments and has Jayasekera titled Legal Implications of authored several works on Commercial COVID-19: Force Majeure and Contractual and International Law. He is intensively Obligations in International Sale of Goods. involved in International fora and has Main concern of their research was the given presentations and reports on unprecedented circumstances led by this contemporary legal issues at law pandemic pertinent to the liability for symposiums held in many countries. failure to fulfil contractual obligations in The first presentation was a co authored international commercial contracts. research papaer titled “Intellect Eclipsed”: Research presentation on ‘Copyright An Analysis of the Unconscious Bias and Protection of Application Programme its Impact on the Development of Interfaces: An Analysis of the Sri Lankan Intellectual Property Law by Hasini Position’ was the final presentation of the Rathnamalala and Padmaja Wijesooriya. technical session I. She discussed about Their main objective of the research is to the necessity of legislative intervention to analyze the historical development of address the IP issues on software industry intellectual property law and its and other businesses reliant on APIs.

3939 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

Paper ID: 418 “Intellect Eclipsed”: An Analysis of the Unconscious Bias and its Impact on the Development of Intellectual Property Law.

Hasini Rathnamalala# and Padmaja Wijesooriya

Faculty of Law, General Sir John Kotelawala Defence University, Sri Lanka

[email protected]

Abstract: The main objective of the research intellectual property law. For example, you is to analyze the historical development of are reading a copyright work bearing the intellectual property law and its trademark. You are contemporary challenges in light of the sitting on a chair protected by design rights feminist jurisprudential interpretations. The and marking the book with a pen the secondary objective is to examine the mechanism for which has, at some stage, been probable links between the areas in patented. Alternatively, you may be typing intellectual property law such as copyrights notes into a computer, which no doubt has law, patent law and application of the parts (such as the mouse) that are protected relevant theoretical paradigms of feminist by patents and design rights. (Bently and legal theory. The research methodology is Sherman, 2014) based on the exploratory research design, On the other hand, feminist legal theory adhering into the legal research methodology, (hereinafter referred to as FLT) could be which is mainly on library-based secondary recognized as one of the main jurisprudential data review. The outcome of this inter- schools of thoughts in legal philosophy. As disciplinary research is a policy paper to Minow and Verchik points out it is not as easy recognize the dynamics of historical task; precisely to point out the exact starting discrimination in order to overcome the point of FLT from world history. (Minow and contemporary challenges in gendered areas Verchik, 2016) Feminist legal theories of intellectual property law. emphasize the role of law in describing Keywords: Intellectual Property Law, society and in prescribing change, while other Copyrights Law, Feminist Legal Theory types of feminist theory might de-emphasize or even question the role of law in these areas I. INTRODUCTION (Minow and Verchik, 2016). Feminism has Intellectual property law(Herein after been described as a house with many rooms; referred to as IPL) is recognized as creating theorists have offered various ways to exclusive rights in a wide and diverse range analyse these chambers or schools of feminist of things from novels, computer programmes, theory. As they describe the world has been paintings, films, television broadcast, and shaped by men (who possesses larger shares performances, through to dress designs, of power and privileges) women and men pharmaceuticals, and genetically modifies should have political, social and economic animal and plant organisms. Intellectual equality. property law also creates rights in the various This research focuses on the link between IPL insignia that are applied to various goods and and FLT. While IPL providing legal protection services, from ‘FUJITSU’ for computers and to aesthetic and scientific works by authors, FLT ‘I CAN’T BELIEVE IT’S NOT BUTTER’ for focuses on guaranteeing equality between margarine. We are surrounded by and we men and women in areas such as constantly interact with the subject matter of

4040 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law employment, family relation, right to persist as long as the society applies women participation in public life and political the male standards and concludes it is participation. Historically women did not equality. Feminist historical analysis suggests enjoy right to participation in the democratic that women were systematically excluded process or economic and social life and it from sites of production, and, as assorted indicates in the concept of women in IPL, in crafts became masculine territory, women areas such as copyrights law, Patents and were not given the opportunity to develop Trademark laws. knowledge in those fields. (Halbert, 2006) This could be understood in light of certain Considering the above, the authors willing to FLT arguments and gendered assumptions on discuss on the IPL and its relationship with woman’s role in the society. For example, in FLT. the peak of the industrial revolutionary years, II. GENERAL INTERPRETATIONS women’s role mostly limited as ‘home- BETWEEN INTELLECTUAL PROPERTY LAW makers’ or ‘primary caregivers’ while men AND FEMINIST LEGAL THEORY were the ‘bread winners’. (Cook and Cusack, Intellectual property scholarship and feminist 2011) In the above scenario, even the concept epistemologies have proceeded upon parallel of Aristotelian Sameness theory could be but unconnected tracks. (Halbert, 2006) prevailed to some extent, as Halbert correctly Feminist scholars rarely, if ever, mention the points out above, women were not in a words copyright, patent, or intellectual position to contribute freely and openly in property; intellectual property scholars male constructed social and cultural arena. rarely, if ever, appeal to feminist Women historically have been shut out of the interpretations to better understand the law. industrial system of knowledge production, a (Halbert, 2006) As indicated above, it should system that takes place in factories, be noted that IPL’s basis is “new knowledge” laboratories, and research institutes. and FLT is based on the concept of equality (Halbert, 2006) between genders. In this research, the III. COPYRIGHTS LAW AND authors focus on the analysis of the APPLICABLE PRINCIPLES OF FEMINIST foundation of theories in IP law and its LEGAL THEORY impact on each other. For example, there is a Copyrights law is one of the major areas in link between equality and social construction IPL. Copyright is the term that used to on genders as accepted in FLT. On the other describe the area of intellectual property law hand, IPL’s basis, “new knowledge” It should that regulates the creation and use made of a be analysed in the gendered assumptions of range of cultural goods such as books, songs, FLTs in light of new knowledge and films and computer programmes. (Bently and ownership-based creations of literature, Sherman, 2014) Copyrights law could be science and aesthetic areas. defined as The rights specified under the The construction of culture, knowledge, statute include the exclusive right of science, politics, and public life as masculine reproduction, the "copy" right, as well as is premised upon the public/ private exclusive rights to distribute, publicly distinction significant in understanding the perform, publicly display, and adapt traditional place of women in the world. protected works. (17 U.S.C. § 106, 2005). (Halbert, 2006) It is one of the prominent Over the past century it has been the focal underlined theories in FLT. Further, FLT point of anxieties over law's ability to adapt within the discourse of jurisprudential theory to new technologies. Copyright law argues that substantive equality could not determines the number of literary and artistic

4141 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law copies that created by the author. Our post- copyright and patent protection is gendered, industrial era is marked by rapid then what is protected is the outgrowth of a technological changes in which our ability to gendered system rendered invisible until a reproduce and receive information grows feminist lens sheds light on the politics of this exponentially. (Joyce, 2013) Many of our otherwise "neutral" construction. First, a grandparents witnessed the development of feminist epistemology can be grounded in an the television as a novel feature and examination of craft labor done by women. communication through cables and satellite (Halbert, 2006) Craft labor focuses on labor would belong to a hazy future. Despite the performed by women involving "caring" -- the cable and satellite communication, today, we labor of the hand, brain, and heart. (Halbert, are linked to digital era where experiencing 2006) Masculine knowledge exists within a the physical distance to carry texts, images, capitalist mode of production, dividing and sounds with startling ease and rapidity. subject from object and knower from the (Joyce, 2013) known. What men do for recognition, women do for love. (Halbert, 2006) A masculine As elaborated by feminist legal theorists, social construction of knowledge means that women were perceived as homemakers. women and men primarily participate in an Hence knitting and cookery were considered already determined system framed by as essential elements in their stereotypical masculinity. (Halbert, 2006). gendered roles until recent. Therefore, traditionally, cooking recipes and the knitting Secondly, the author focuses on the historical patterns, quilts designs were shared from developments in gendered aspects in printing generations to generation or from county to phases of creations/authorships under country without any copyrights protection. copyrights protection. As the legal history However, in the commercial world, knitting and philosophy indicates, women’s abilities in and cookery as a trade lead significantly by tradable areas were not recognized similarly men as major income generating sources. to those of men. This was a famous realism in Cookery books and knitting books are the male-dominated printing presses during currently copyrights protected and the pre-world war II era that female authors considerably expensive. It is a noteworthy were ousted. To remedy this, feminists example on male construction in the area of started the printing presses on their own. The copyrights. Especially it is a generalization of aforesaid phase in the world history is women’s contribution as recognized by indicated by Halbert as the publishing societal norms such as caring and nurturing industry has traditionally been male nature goes without monetary value. dominated and has led many feminists to seek alternatives to the mainstream Halbert is one of the prominent authors in the publishing system. The most popular of these area of gendered aspects in American early feminist presses, The Woman's Press, copyrights law and she argues this issue in was forced to create new distribution several important ways. Firstly she connects channels after being vilified by the the social construction of gender to mainstream male-dominated publishing copyrights law. Theoretically speaking, industry. Feminists wishing to publish in the women stand outside, or on the periphery of, late 1960s and early 1970s met similar masculine creation. If creative work, either resistance to those writing in the early scientific or artistic, is to be protected legally, twentieth century. (Halbert, 2016) it will on balance be the work of men. (Halbert, 2006) If the very construction of Not only the area of printing but also the knowledge that is the basis for claims to whole concept of authorship was gendered in

4242 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law certain areas, for instance, the author of the universally for women in many fields famous “Mill on the Floss” Mary Ann Evans including attorneys engaged in litigation too. used the pen name George Eliot to write her V. LITIGATION AND FEMINIST LEGAL novels in a time when female novelists were THEORY seen as only romantic authors. Mary Ann wanted to be taken seriously therefore Legal practice has been recognized in appeared as a male-author to overcome the gendered parameters universally since its societal norms on then-female authors beginning. Internationally women were (Hughes, nd). allowed to study law and enter the bar relatively after a long time to that of men. IV. PATENTS LAW AND FEMINIST Pursuing legal education and a career, LEGAL THOERY especially in the legal practice were Patents could be defined as a limited influenced by perceptions and societal norms monopoly that is granted in return for the regarding women. (Mendis et. al., 2008) This disclosure of technical information (Bently affects inevitably on the IPL practice. and Sherman, 2014). It is our primary policy Further, the litigation process of IPL itself tool to promote innovation, which encourage denotes the gendered dimensions. As the development of new technologies, and indicated above in Hagen’s research “Essay increase the fund of human knowledge (Burk on Women and Intellectual Property Law”: and Lamely, 2003). To accomplish this end, The Challenges Faced by Female Attorneys the patent modelled to creates a general set Pursuing Careers in Intellectual Property, a of legal rules that govern a wide variety of case study based on Sandra, a five year technologies. intellectual property litigator, Hagen The authors utilize this part of the research to indicates that there are still many obstacles denote the contemporary challenges in for women as Sandra (the interviewee) puts gendered aspects in patent law practice. it, "dare to trespass" into the former boys' club of intellectual property litigation. As indicated by Hagen, based on an empirical Further Hagen adds a model (Rosenthal, research published on the legal practice on 1974) for a client and lawyer relationship in the theme, “Essay on Women and Intellectual Intellectual Property Law as client is on equal Property Law: The Challenges Faced by status with the attorney and participates Female Attorneys Pursuing Careers in actively in the professional relationship for a Intellectual Property”, based on the author, it more satisfied client. was indicates that less female lawyers are involved in the litigation process in American As the outcome of the above research carried intellectual property law, particularly patent out by Hagen, This type of interaction is law. As indicated by the above research, favoured by the trademark attorneys who bachelor's degree and proof of scientific and were interviewed, and may be an additional technical training equivalent to that received factor explaining why there are more female for a bachelor's degree in one of the trademark attorneys and why there are fewer recognized technical fields is needed to female intellectual property litigators. This qualify to patent litigation in American patent aspect of trademark law fosters an litigation. Though it is not required atmosphere in which the attorney and the everywhere in patent litigation, women in client work together to achieve the same goal. technological and technical sectors are less In light of the Hagen’s empirical survey, this recognized. The same issue applies part of the research indicates that though it is a different jurisdiction, the outcome is

4343 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law applicable beyond borders as it is very Bently, L and Sherman, B 2014, Intellectual apparently applicable in intellectual property Property Law, 4th Edition, Oxford University litigation universally. Press. VI. CONCLUSION Burk, DL 2006, Copyright and Feminism in Digital Media, American University Journal of Based on the above discussion, with three Gender, Social Policy & the Law, vol. 14, no. 3, main findings on feminist interpretations on pp. 519-550. intellectual property law authors entail in their concluding observations. Burk, DL 2007, Feminism and Dualism in Intellectual Property, American University Social construction of gender, unequal Journal of Gender, Social Policy & the Law, vol. bargain power in political relations and its 14, no. 3, pp. 183-206. institutional application were also common in the area of intellectual property law. Burk, DL 2011, Do Patent Have Gender?, Specifically in the areas of copyrights law, the Journal of Gender, Social Policy & the Law, vol. historical discrimination as indicated above 19, no. 3. undermined females as authors and Burk, DL and Lemley, M 2003, Policy Levers traditional knowledge bearers. in Patent Law, UC Berkley: Berkley Program in Secondly, this reality has made an impact on Law and Economics, Working Paper Series, women’s litigation in current IPL related viewed 11 May 2020, practice such as in trademarks and patent . barriers as well as socially constructed J Cook, R. and Cusack, S., 2011. Gender gender roles in legal practice made a negative Stereotyping Transnational Legal contribution in this regards. Further, this Perspectives. Pennsylvania: University of phenomenon could be described and termed Pennsylvania Press. as an “unconscious bias” Unconscious bias is a single term used by Justice Ruth Bader Gearhart-Sema, TL 2010, Women's Work, Ginsburg to describe generations-long Women's Knowing: Intellectual Property and societal attitudes on gender roles. However; the Recognition of Women's Traditional its impact on female litigators is irreparable. Knowledge, Yale Journal of Law and Feminism, vol. 21, pp. 372-404. Thirdly, to overcome the above contemporary challenges in the area of intellectual property Gupta, R 2011, Copyright v. Copyleft: A law, these historical discrimination and the Feminist Perspective on Marginalization contemporary challenges such as under Copyright Laws, NUJS L. Rev., vol. 4, “unconscious bias” should be taken to the no.65. limelight in order to eliminated further Hagen, K 1999, Women and Intellectual discrimination and for the betterment of the Property Law: The Challenges Faced by future of intellectual property law as whole. Female Attorneys Pursuing Careers in Bibliography Intellectual Property, Santa Clara Computer and High-Technology Law Journal, vol. 15, no. Bartow, A 2006, Fair Use and the Fairer Sex: 1, pp. 139-158. Gender, Feminism, and Copyright Law, American University Journal of Gender, Social Halbert, D 2006, Feminist Interpretations of Policy & the Law, vol. 14, no. 3, pp. 551-584. Intellectual Property, American University Journal of Gender, Social Policy & the Law, vol. 14, no. 3, pp. 431-460.

4444 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

Levit, N, Verchick, R and Minow, M 2016, viewed 16 June 2020, “Front Matter Feminist Legal Theory: A . Mergers, RP 2000, One Hundred Years of BIOGRAPHY OF AUTHORS Solicitude: Intellectual Property Law, 1900-

2000, California Law Review, vol. 88, pp. 2187. Mendis, N, Samararatne-Watson, D, Dawood, S and Rathnamalala, H 2008, 'Perceiving

Perception: A Study on the Perceptions of

Undergraduates in Law on the Relevance of Gender Roles in the Legal Education and Within the Legal Profession', Eleventh Authors are lecturers in the Faculty of Law, National Convention on Women's Studies, General Sir John Kotelawala Defence University, Colombo, 2008. Ratmalana. They are Attorneys-at-Law and currently reading for their M.Phil/Ph.D.s in Law. Pollack, M 2006, Towards a Feminist Theory Authors hold LLM and LL.B. (Hon) from the of the Public Domain, or Rejecting the Faculty of Law, University of Colombo. Hasini Gendered Scope of United States Rathnamalala holds LLM in Human Rights Law Copyrightable and Patentable Subject Matter, (University of Minnesota Law School-USA) and Wm. & Mary J. Women & L., vol. 12. No. 3, pp. her research areas are Human Rights Law, Jurisprudence and International Humanitarian 603, viewed 18 June 2020 Law. Padmaja Wijesooriya holds LLM in . University of Exeter, UK). Her research areas are Intellectual Property Law and Traditional Web Pages Knowledge. Hughes, AM, Mary Ann Evans and George Eliot: One Woman, Women in World History,

4545 13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

Paper ID: 378 Contracts formed during Frustrations and Force Majeures: An Anti-Crisis Shield for Consumer Protection against Boilerplate and Limited Liability Clauses

S.M.Anuruddika G. Senevirathne

[email protected] Abstract – All productions and consumptions Keywords - contract, frustration, force- are outcomes of various contracts between majeure, boilerplate-clauses, limited- producers, intermediates (whole-sellers, liability-clauses retailers, brokers, dealers, suppliers) and INTRODUCTION consumers. In a force majeure or frustrating situation barging power and freedom of The entire social fabric is a web of various and contract drastically get altered and curtailed for diverse contracts among different parties. Thus, consumers comparative to superior position of under impediment like frustration or force intermediaries due to rattle in economy. Such majeure situation wide range of contracts get impediments provide ideal opportunity for affected comparative to ordinary cause of them to include various exemption and limited business. Out of which sales of goods contracts liability clauses in contracts especially for becomes the foremost common, significant and standard form consumer contracts victimizing indispensable form of contract that becomes inferior consumers leaving no choice other than crucial for everyone in everyday life as well as consenting to such contracts. This paper looks exposed to a greater risk relative to other forms at primarily the legal validity of application of of commercial contracts in such impediments. force majeure and frustration principles on Besides, their necessity becomes clearly contracts formed during such impediments. apparent especially in frustrated and force Secondly, study examine how consumer majeure crisis. Thus, real robustness of the contractual rights were altered and curtailed by contract law is effectively able to test in such intermediaries through boilerplate and various force majeure and frustrated situations to limited liability clauses during force majures determine whether it is necessary to recalibrate and frustrations plus their legal implications. the existing doctrines or to develop new laws. Study discussed and reflected the gaps and laps Similarly, contract is a law based on the in domestic laws in such frustrated and force foremost notion of freedom of contract. Thus, majeure situations comparative to Polish and governing law of contract is basically depend on Singaporean laws. Research findings affirmed the intension of parties and rule of construction the legal error in application of force majeure or how contract was primarily constructed. Any and frustration principles on contracts formed contract stems and sustain through during impediments. Further, it was highlighted transactions and relationships between two or that domestic consumers encounter more parties. In a frustrated or force majeure comparatively higher legal risk than the Polish situation such transactions and relations and Singaporean consumers on such scenarios encounter drastic alterations comparative to and emphasised the vitality of strengthening normal sales of goods contract due to rapid domestic consumer protection legal framework reformations made to business models and also to remedy the same. due to formation of remote contracts rather than entering contracts through ordinary mode

of meeting face-to-face. Hence, most of the time contacts formed during force majeure or

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law frustrated context, contracting parties becomes contract law has overlooked the application and strangers instead of known parties. This legal implications of said two principles for becomes especially common and evident in contracts formed during such impediment. most crucial sales of goods contracts such as Once Lord Justice Denning stated, it is not food, pharmaceutical and hygiene product possible to expect from contractual parties to related consumer contracts due to their nature have ‘foresight of a Prophet, or his lawyer with of essentiality and scarcity on such conditions. the draftsmanship of a Chalmers’ but contrary Generally upon such market conditions Justice Viscount held that fate of contractual consumer demand for essential goods will arise parties depends ‘on the construction of while the production and supply of the same contract’ and denied the role of court on imply will get slowdown and disrupted significantly terms ‘what is just and reasonable’ into a due to endless predictable and unpredictable contract. This controversial approaches in causes such as closing of production entities, contract law in ordinary sense get further worst inaccessibility to raw materials and workers, for the contracts that are formed during an logistic and delivery issues both domestic and impediments due to the question of international (imports and ), problems applicability of the said principles of frustration pertains to harvesting and production, due to and force majeure. perishability of such items, storages and II. RESEARCH PROBLEM inventory limitations, etc. Simultaneously, the same said reasons confer extraordinary Contract law based force majeure clauses and bargaining power on sellers and other common law principle of frustration are the two intermediaries to dictate both conditions and predominant fundamental principles available warranties on such sales of good contract by for a contract on impediment either to absolve drastically curtailing buyers’ freedom of contractual obligation and liabilities of sellers contract leaving either less or no choice for and others intermediaries. Further, such them. impediments sets the landscape to deploy unfair commercial practise through restriction Correspondingly, the recent COVID-19 and curtailing consumer freedom and rights impediment upended global consumer reference to terms of contract. landscape and confinement measures forced consumers to shift to online purchases. This Although there are heap of literature and case move further exacerbated elderly and low- laws pertains to the aforementioned principles income consumers’ behaviour while resulting with respect to contracts formed either pre or online scams seek to take advantage of the post impediment situations, there is a serious crisis. E.g. Between the period of January 2020 lacuna in both domestic and international laws to mid-April 2020 Federal Trade Commission of on their applicability for a contract formed in United States received more than 22,000 the cause of an impediment. Thus, this study consumer complaints about COVID-19 related specifically focused on the research problem of frauds which amounts over USD 22 million legality in application of common law principle worth consumer losses (The Organization for of frustration and contract law principle of Economic Co-operation and Development, force majeure for contracts formed during an 2020). impediments and their legal implications especially on consumers at large. Accordingly, As a common practise on such impediments, four research questions were formulated 1) contracts already formed prior to such situation Does application of contract law principle of tends to rely on two major principles namely force majeure to a contract formed during an frustration and force majeure. Nonetheless, impediment is legally valid? 2) Does application of common law principle of frustration to a

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law contract formed during an impediment is IV. RESULTS AND DISCUSSION legally valid? 3) How does application of Principle of Force Majeure contract law principle of force majeure and common law principle of frustration affect on In a situation of impediment, party can rely first consumer contracts during an impediments? 4) on the force majeure clause if the formed What is the legal applicability of principles of contract comprised of such a clause. The word force majeure and frustrations to contract force majeure derived from French law which during impediment in Sri Lanka comparative to means irresistible super human or superior Polish and Singaporean laws and what are the force and typically these clauses refer as ‘acts recommendations suggested for domestic legal of god’ such as floods, fire, hurricanes, reforms. Thus, objectives of this study is to 1) earthquakes, tsunamis, and similar situations Examine the legal validity of applying contract like sudden and unforeseen lockdowns, curfews law principle of force majeure to a contract lasted for a certain period of time due to formed during an impediment 2) Examine the pandemic or epidemic diseases and other acts legal validity of applying common law principle of man which are disruptive and unforeseen of frustration to a contract formed during an such as industrial actions, strikes, insurrections, impediment 3) Explore and assess the legal riots, explosion and wars1 which are beyond the implications of application of contract law control of parties to contract. Therefore, force principle of force majeure and common law majeure is an event or situation which is principle of frustration on consumer contracts unforeseeable (at the time of formation of during an impediments 4) Compare and contract), unavoidable and impossible to contrast the legal applicability of principles of overcome by the parties to a contract2. Under force majeure and frustrations to contract English law, there is there is no blanket during impediment in Sri Lanka comparative to definition for force majeure rather it was left for Polish and Singaporean laws to make parties to define exactly what they consider to recommendations for domestic legal reforms. be force majeure in particular under a given contract. Hence, force majeure clauses should III. METHODOLOGY set out a list of matters that qualify under force This is a qualitative comparative research based majeure, with an explanation of contractual on critical analysis of domestic black letter law consequences along with specific conditions comparatively with Polish and Singaporean and exceptions. As stipulated by such clauses laws buttressed with empirical methodologies. either one or both parties to contract will Data gathered primarily through national and entitle to excuse or suspense of performance of comparative legislations, case laws, directives whole or part of the contract upon the and regulations made by respective occurrences of certain specific acts, events or jurisdictional statutory authorities. Those were circumstances that are reasonably beyond the further strengthen with peer reviewed law control of parties to contract. Additionally they journals, books, contributions and reviews will not become liable for failure to perform made by professional experts of contract and their obligations as articulated by the contract. commercial law areas. Research was mainly Consequently, due to the draconian effect of the restricted to contracts formed in the cause of doctrine unduly onerousness and impediment and to the application of expensiveness does not mount to impossibility frustration and force majeure principles in such contracts. The key limitation of the study is the 1 Gupta, H. (2020) Force majeure and frustration of absence of both domestic and international case contracts in Covid-19 emergency, Oireachtas Library and Research Services,1-8 law and research literature pertains to the main research problem. 2 McDermott, P. A & McDermott, J.(2017) Contract law, 2nd ed. Bloomsbury Professional, Dublin,21

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law of performance of contract and does not resistance to invoke this doctrine in a normal absolve parties’ obligations and liabilities under contractual context.5 such force majeure clauses. Thus, under Similarly, actions and decisions of state and temporary force majeure will suspend the public authorities trigger change of ordinary performance of contract while the definitive law in such frustrating and force majeure force majeure will either lead to cancel or situations tend to create opportunity for terminate the contract. English law requires to intermediaries including sellers of the supply satisfy number of conditions like causation chain of sale of goods to use the prevailing between force majeure and performance of condition to make use for unjust enrichment contract, mitigation efforts, notice of specially through inclusion, alteration and requirement and consequences of establishing exclusion of certain terms to contract which are force majeure event etc. Moreover, as a not possible or prohibited under normal cause common practise courts interpret such clauses of business. strictly. Legality of Application of Principles of Principle of Frustration Frustration and Force Majeure for Contracts On the other hand in absence of such force Formed During Impediments majeure clause in a contract common law Generally frustration does not require any principle of frustration coming to force. English explicit provision in the contract. However, law doctrine of frustration becomes applicable contract does not mount to frustration if a valid where performance of contract becomes contract term deals with the said or similar impossible, illegal or fundamentally or radically situation and parties have foreseen or have different than it was intended at the time of applied their mind to the frustrating event at formation of contract due to non-faulty of the time of formation of the contract. Similarly, contractual parties. Cases based in frustration force majeure clause only enforceable where broadly falls in to three subcategories; the said event or impediment is external, impossibility of agreed performance, unpredictable, irresistible and inevitable. Thus, impossibility of resulting the mutually agreed principle of frustration and force majeure purpose of the contract and significant change clauses becomes inapplicable where contractual in to mutually agreed state of affairs. Upon the parties have experience the frustration or force successful proof of frustration, it will majeure and if they are reasonably aware of the automatically discharge all obligations of the level of control or outcomes of the said contractual parties by immediately terminating impediment and respective implications on the the contract without any further steps. In intended contract at the time of formation of circumstances where total failure of contract. performance of contract taken place due to frustration, court most likely to order to return Thus, application of principles of frustration money what has already been paid.3 Whereas, and force majeure clauses become in partial frustration, such order only available fundamentally questionable for a contract that when court deem where part of the contract formed during a force majeure or a frustration mounts to a separate contract.4 Due to the because those principles stipulate as assigned high hurdle of establishing exceptional provisions to normal contractual “impossibility of performance” to avoid open context which come in to force in an unforeseen the flood gates under such claims, court shows extraordinary impediment situation to avoid the breach of contract. Thus, contracts formed

3 Fibrosa vs. Fairbairn [1943]AC 32 HL 5 Taylor vs. Caldwell (1863) 3 B & S 826; Ringsend 4 Ringsend Property Ltd vs. Donatex Ltd [2009] IEHC 568 Property Ltd vs. Donatex Ltd [2009] IEHC 568

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law during a frustration or force majeure such rights and consumer protection. But UCTA also conditions mounts to the normal contractual neither contain any special provisions pertains context rather than an exception contrary their to frustration or force majeure nor stipulate normal legal application. Therefore, two major application of the said law related to frustration remedies that are available for contracts that or force majeure conditions. Similar lacuna formed before or after a force majeure or prevails in the CAAA. Hence, domestic sale of frustration becomes rebuttable and goods and consumer protections laws seriously fundamentally non-applicable for contracts lacks laws and regulations relates to frustration formed in the cause of a force majeure or and force majeure conditions. frustration due to four reasons; first, event or In a frustration or force majeure condition impediment exist at the time of formation of sellers may enter exemption, limited liability contract. Secondly, event or impediment have and indemnity clauses to safeguard self-interest reasonably foreseen or experienced by the while further including other abusive contractual parties at the time of forming the boilerplate clauses to standard form contracts contract. Thirdly, contractual parties able to to exploit consumer rights and freedom by formulate their contractual terms inter alia means of ; (1) price gouging (2) pressuring the reasonably to suit the special contractual buyer to “take or pay” for the goods; where condition considering available options and “take” specified the amount of goods delivered possibilities to cater or mitigate the said by the seller which differ to buyer ordered impediment and its consequences. Lastly the quantity or to “pay” the seller the penalty for event or impediment contractual context full or partial non-acceptance of the delivered becomes the normal contractual context for goods, (3) where seller failed to deliver the such contracts. contractual goods and force the buyer to Contracts Formed During Frustration and Force “cover” by the substitution offered upon sellers Majeure and Consumer Protection During choice (4) instead of upgrading the quality of Impediment in Sri Lanka damage or defect goods with superior quality goods by replacing them with inferior quality There are three major legislations pertains to goods through “degradation”, (5) refusal and sales of goods and consumer protection in Sri restriction of buyer examination of goods Lanka; Sale of Goods Ordinance No.11 of 1896 before acceptance of the goods (6) inclusion of (hereinafter SOGO), Unfair Contracts Terms Act non-refundable payment terms, (7) No.26 of 1997 (hereinafter UCTA) and unreasonable time frames for deliveries, (8) Consumer Affairs Authority Act No.09 of prohibition or restriction on consumer order 2003(as Amended) (hereinafter CAAA). SOGO is cancelations, (9) providing incomplete and the bedrock statute for sale of goods but misleading information and advertising on provides little assistant to situations of force goods and (10) refusal or restriction certain majeure or frustrations. Hence, all roads will modes of payment for a buyer such as cash or leads to either force majeure clauses in credit cards etc. consumer contracts or common law doctrine of frustration pertains to those contracts that are Hence, lacuna in all three major statutes already formed prior and posy of such pertains to sale of goods and consumer impediment. Following the Unfair Contract protection on their applications and Terms Act of 1977 U.K., UCTA was formulated implications in the cause of frustration and based on the notion of test of reasonableness to force majeure, domestic unprotect buyers strike a balance between exemption, limited greatly felt to defend for themselves. Thus, liability and boilerplate clauses mainly contain present lacuna in domestic sale of goods and in consumer contracts to uphold consumer consumer protection laws often fall back in the

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law absence of an expression of contrary on one year.9But quazi-consumer protection intention by the parties by exposing consumers measures were enforced through prohibition of for greater domination and exploitation of the abusive clauses, providing additional sellers and intermediaries especially during warranties for defects and granting right for impediments. consumers to withdraw distance contract within 14 days. Consumer Protection During Impediment in Poland Consumer Protection During Impediment in Singapore Polish law does not permitted to alter or curtail or to suspend obligations and liabilities There are several statutes related to sale of enforced on seller or intermediaries in relation goods in Singapore under normal cause of to consumers which are applicable under business; Sale of Goods Act (Cap.393 of normal condition during frustration or force Singapore), Supply of Goods Act (Cap.394 of majeure even though it is difficult to fulfil them Singapore), Unfair Contract Terms Act (Cap.396 as usual. Similarly legislature enforced certain of Singapore), Sale of Goods (United Nations procedural measures such as; (1) to impose Convention) Act (Cap.283A of Singapore), monetary fines for infringement of consumers’ Misrepresentation Act (Cap.390 of Singapore) collective rights and interests or unfair use of and Price Control Act (Cap.244 of Singapore). contractual advantage6 (2) regarding failure to The Consumer Protection (Fair Trading) Act of comply with the obligation relates to maxim 2009 (CPTFA) applies to most of the consumer prices/price margins as stipulate by respective transaction excluding sale for land and houses authorities empower to impose a fine and for and prawn brokering. Section 2(1) of CPTFA repeated such failures to imposed a fine of ten defined the term “consumer” and it covers percent of trader’s preceding year annual consumers’ right to cancel regulated turnover7 during impediments. contracts10, lemon law remedies for the consumer and suing the supplier for unfair Simultaneously, the Office of Competition and practises11. The Consumer Association of Consumer Protection established a special Singapore (CASE) is the authorized agency to platform to report unfair commercial practises enforce consumer protection laws and The in terms of withdrawal8, return, refund and Competition and Consumer Protection exchange of goods and services on impediment. Commission of Singapore (CCCS) administer Also, due to the crucially of protecting small- and enforce CPTFA. scale businesses on such market vulnerability and simultaneously acknowledging their Singapore has no legislation on force majeure critical role amidst the impediment, those sole- and COVID-19 (Temporary Measures) Act traders whom does not acquire professional No.14 of 2020 (hereinafter CTMA) formulated character legally declared and treated to provide relief to certain scheduled contracts equivalent to consumers while temporarily formed prior to 24th March 2020 to temporary reducing their regulatory duties for a tenure of freeze legal rights and obligations of contracting parties until the said the law is in force and

9Article 62(1) of Anti-Crisis Shield Act 2020

10 Regulation 2 of The Consumer Protection (Fair Trading)

Act of 2009 - Regulated contracts referred to direct sales 6 Article 21 and 29 of Consumer Rights Act of 2014 contracts, long-term holiday product contracts, time share 7 Article 106 of Competition and Consumer Protection Act contracts and time share related contracts of 2007 11 Section 4 of The Consumer Protection (Fair Trading) Act 8 Article 12 and 27 of Consumer Rights Act of 2014 of 2009 defines unfair practise.

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

protection laws able to trace from 10th century onwards through Badulu Dem inscription. permitting to proceed under original contractual context when the condition become under control. Thus, CTMA will not applicable (Amarawansa Thero, 1969). Despite the said to contracts formed or renewed after 25th history, comparative to the selected two March 2020.Therefore, in order to ascertain the selected jurisdictions prevailing domestic sale relief provided under this statute it is vital to of goods and consumer protection laws by and establish the the contract was formed prior to large does not protect consumers/buyers the impediment. Also, force majeure clauses especially under force majeure or frustrated and Frustrated Contracts Act (Cap.115 of 1959) contractual contexts and greatly felt to fend for revised in 2014 (hereinafter FCA) will prevail themselves. Thus , it is necessary for legislature over CTMA. Hence, it is important to scrutinize to intervene to control the inclusion of the clauses in contract against the evidence consumer abusive and exploitative various available to determine whether non- exemption, limited liability, indemnity and performance of contract is occurred due to boilerplate clauses specially reference to COVID-19 or otherwise. Hence, Singaporean law standard form consumer contracts to uphold indirectly differentiated the contracts formed consumer rights and protection in general and prior to impediment and contracts formed particularly in impediment situations. during the cause of impediment. Further, Singaporean laws laid the statutory remedies Further, it is essential to address the lacuna in precedence order in an impediment. present law pertains to frustration and force majeure conditions with appropriate and Moreover, according to Section 5(c) of FCA, it effective statutory enactments similar to becomes applicable for sale of goods contract Frustrated Contracts Act in Singaporean law other than Section 7 of the Sale of Goods Act and by assigning a priority order on laws (Cap. 393) specific goods that becomes pertains to force majeure and frustration to perishable before the risk passed to buyer. The determine which should take precedence, Alliance Concrete Singapore Pte Ltd vs. Sato freezing of existing contracts until impediment Kogyo(S) Pte Ltd 12 decided that even though is under control, insertion of force majeure force majeure clauses were included in to clauses retrospectively for pre pandemic commercial contracts as boilerplate clauses contracts13 etc. Correspondingly, application of such clauses should interpreted in the their sanctions like penalties for traders who breach own wording and based on considering the consumer protection laws in impediment like difficulties encountered by the contract parties Polish law will support to averse consumer under the light to commercial law. Therefore, victimization on conditions. Similarly, the Singaporean both statutory and common laws options available under force majeure and were extended to grant better protection for the frustration in normal cause of business for contractual parties in general and also specially intermediaries able to get alter and increase for consumers at large. under change of laws with government Findings and Recommendations intervention on such pandemics14 therefore it is Although modern consumer rights and protection originated in United State of 13Hutchinson, G. B. (2020) Is the Coronavirus outbreak America, Sri Lankan written consumer frustration or event? Commercial Law Practitioner, 27(3), 42

14 Stuttaford, S. & Renton, A. (2020) Managing commercial

contracts during Covid-19 pandemic, Castletown law,1-3 12 Alliance Concrete Singapore Pte Ltd vs. Sato Kogyo(S) Pte Ltd [2013] SGHC 127

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law vital to strike a balance between among Gupta, H. (2020) Force majeure and frustration producers, intermediaries and consumers in of contracts in Covid-19 emergency, Oireachtas impediments. Furthermore, involving with Library and Research Services, 1-8 respective global consumer protecting bodies such as International Consumer Protection Enforcement Network (ICPEN) will help to protect e-consumer both within and beyond Hutchinson, G. B. (2020) Is the Coronavirus national boarders while uplifting consumer outbreak frustration or event? Commercial Law protection standards to international level Practitioner, 27(3), 42 during normal and impediment conditions. McDermott, P. A & McDermott, J. (2017) V. CONCLUSION Contract law, 2nd ed. Bloomsbury Professional, Although literally it apparent that sellers tend Dublin, 21 to become more victimize in impediments but Stuttaford, S. & Renton, A. (2020) Managing in reality buyers becomes the actual victims due commercial contracts during Covid-19 to necessity and high dependability of essential pandemic, Castletown law, 1-3 consumer goods, restriction on accessibility, The Organization for Economic Co-operation scarcity of goods and services, limitation of and Development (2020) Protecting online alternatives and substitutes for such essential consumers during COVID-19 crisis commodities. The outbreak of COVID- 19 pandemic and its resultant crisis created an Statutes ideal force majeure or frustration situation Anti-Crisis Shield Act 2020 of Poland which forced both legislature and law confronting host of hard questions to rethink Competition and Consumer Protection Act of how they can and should intervene in all 2007 of Poland dimensions of social life in ways which Consumer Affairs Authority Act No.09 of previously unimagined. 2003(as Amended). Therefore, crisis provided an impetus to review Consumer Rights Act of 2014 of Poland the ability and effectiveness of present contract law regimes for impediments and it is evident COVID-19 (Temporary Measures) Act No.14 of there is a gap and uncertainty in present 2020 contract law on how to address rights, remedies Frustrated Contracts Act (Cap.115 of 1959) and reliefs for contractual parties that are revised in 2014 formed amidst an impediments. Misrepresentation Act (Cap.390 of Singapore) Simultaneously, it necessary to have a more thorough look at how to legally address Price Control Act (Cap.244 of Singapore). domestic commercial contracts formed during Sale of Goods (United Nations Convention) Act an impediment and respective consequences (Cap.283A of Singapore) especially on domestic consumer contracts and consumer rights in such impediments. Sale of Goods Act (Cap.393 of Singapore) REFERENCES Sale of Goods Ordinance No.11 of 1896 Amarawansa Thero, Kotmale (1969) Lakdiva Supply of Goods Act (Cap.394 of Singapore) Sel Letters, Colombo: Gunasena & Co. The Consumer Protection (Fair Trading) Act of Canavan, R. The impact of Covid-19 on contract 2009 (CPTFA) for the sale of goods, University of London, 1-2 Unfair Contract Terms Act (Cap.396 of Singapore)

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Unfair Contract Terms Act of 1977 U.K. Ringsend Property Ltd vs. Donatex Ltd [2009] IEHC 568 Unfair Contracts Terms Act No.26 of 1997 Taylor vs. Caldwell (1863) 3 B & S 826 Cases ACKNOWLEDGEMENT Alliance Concrete Singapore Pte Ltd vs. Sato Kogyo(S) Pte Ltd [2013] SGHC 127 Author dedicate this piece of research writing to all whom taught her to think critically and act

humanly. Fibrosa vs. Fairbairn [1943]AC 32 HL

Ringsend Property Ltd vs. Donatex Ltd [2009] IEHC 568

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

Paper ID: 323 The Effectiveness of the Piercing of Corporate Veil Under Sri Lankan Law: A Comparative Analysis of the Sri Lankan Law with UK Law.

RMRKK Rathnayake

Faculty of Law, General Sir John Kotelawala Defence University, Sri Lanka

[email protected]

Abstract— This research intends to discover and A company is a body where the corporate and evaluate the adequacy of Sri Lankan statutory legal personality2 is separate from its provisions and case laws regarding the members composing it. Being a distinct legal corporate veil piercing doctrine compared to entity, the shareholders of the company are the UK jurisdiction. This also intends to find not personally liable for the debts of a out the reforms and solutions to amend the Sri company. The doctrine of corporate veil came Lankan Companies Act1and also to develop the in to force in Salomon V Salomon Co. Ltd 3 law relating to this field. This is especially case andlater this has become the landmark focused on to find a solution to the current case and judicial precedent to many cases with corporate issues in Sri Lanka. respect to separate legal personality. This case has introduced a concept of a fictional veil, This research has included the historical which is put between stakeholders and evolution of the concept of separate legal company. This artificial veil prohibits third personality and the veil piercing theory and parties from interfering in to the affairs of their current application in UK and Sri Lankan stake holders. The viewpoint of the judiciary jurisdictions. This research critically analyses toward the metaphorical veil has not always the development of the case laws and the been opposed. However, under exceptional statutory provisions regarding the veil circumstances and in some compelling piercing in the above mention jurisdictions, situations the court of law ignores the shelter based on the qualitative and traditional black of the veil and penetrating it. This called letter methodology. piercing or lifting of veil. Courts used to deny After analysing all above aspects, finally this the corporate protection when it has been research came to a conclusion, the current used as a sham4 for deliberate wrongdoings of statutory provisions in Sri Lanka regarding the a company5.Once the court has lifted upon this veil piercing is adequate. However, there is metaphorical veil shareholders or any member still a lack of judicial interpretations regarding of a corporation becomes liable for the this doctrine and need to regulate some set of company’s debts. As a common law country UK uniform rules to pierce the veil. This research is following judge made law. Its judge’s duty to comes into the end with the suggestions of interpret the law to ensure the corporate some minor reforms to the Companies Act No governance. Sri Lanka also follows the 07 of 2007 Sri Lanka and other generally footsteps of UK. The Civil Law Ordinance No. applicable Suggestions. 05 of 1852 Sri Lankainaugurates the

I. INTRODUCTION 2Wikramanayake Arittha., Attorney-at-Law, Company Law in Sri Lanka (2007), p.40 3 [1897] A.C 22 4 DHN food Distributors Ltd. V Tower Hamlets [1976] 1 WLR 852 1 Companies Act No 07 of 2007. 5 Gilford Motors Co Ltd v Horne [1933] Ch 935.

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law applicability of the English law into Sri Lankan in the UK with the Sri Lankan law to evaluate legal system. In Amarasekara v Mitsui & Co their relevance and adaptability in Sri Lanka. Ltd6 case the Supreme Court of Sri Lanka 3.To recommend necessary reforms to the accepted that English commercial law can be Companies Act No 07 of 2007of Sri Lanka in applied to the Sri Lankan Legal system. The the light of the comparative analysis in order comparative study is based on UK and USA to protect the innocent parties from the jurisdictions because they are consider as fraudulent acts of company shareholders. most significant common law jurisdictions as well as most prominent bodies of corporation law in the world.7 III.RESEARCH METHODOLOGY Under the statutory provisions, UK’s Limited To achieve the main purpose of this proposed Liability Act in 1855 provided guidelines research, it is important to deal with several regarding the protection of creditors and research methodologies. This paper is shareholders before enactment of regarding the doctrine of piercing of corporate the Companies Act, 2006 United Kingdom. veil and it has examined the evolution of the Shareholders of a company are personally corporate veil doctrine, The grounds piercing liable for the debts of a company. The the corporate veil in comparison with UK law Company’s Act of UK did not lay down the legal as well as the statutory provisions and case procedures to pierce corporate veil but laws regarding the piercing the veil of judiciary penetrate the veil under certain incorporation. This research is a doctrinal circumstances when necessities arise. The new research8 and researcher used traditional companies act No. 07 of 2007 is the governing ‘black-letter’9 methodology to examine law for corporate bodies of Sri Lanka. Although theoretical aspects of law relating to the it has some governing principles of corporate corporate veil piercing. limited liability and shareholder’s This research encompasses the qualitative responsibilities, when compared with the UK research methodology in a comparative jurisdiction, it is obvious that further reforms approach10. This includes the data gathered must be introduced to strengthen the Act. The through primary, secondary sources. Such as proposed research will be an attempt to if find legislative enactments (So-called primary any reforms needed or if so, what they need to sources)11, law reports, textbooks, journal be. articles, and etc. Apart from that the researcher used internet search engines such II.RESEARCH OBJECTIVES as Hein Online, Law Lanka, and Law net. In this research, quantitative research methodology 1.To critically analyse the adequacy of statutory provisions in the Companies Act No.07 of 2007 of Sri Lanka, grounds on veil 8McConville and Wing Hong Chui (2007)Research Methods for Law, Edinburgh University Press, piercing and new developments on veil pp.18-21. piercing to regulate the doctrine of corporate 9 This research aims to systematize, rectify and clarify veil in Sri Lanka. law on any particular topic by a distinctive mode of analysis to authoritative texts consists of primary and 2.To compare and analyse the statutory secondary data. provisions and the development of case laws 10 Julie Mason and Michael Salte (2007) Writing Law Dissertations: An Introduction and Guide to the Conduct 6 [1993] 1 SLR 22. of Legal Research, Person education Limited pp.182-190. 7 Cheng T.K., 'The Corporate Veil Doctrine Revisited: ‘A 11 Mike McConville and Wing Hong Chui (2007) Research Comparative Study of the English and the US Corporate Veil Doctrines’ ' [2011] 34(2) Boston College Methods for Law, Edinburgh University Press, International and Comparative Law Review 333 p.19.

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law did not use because this research did not base However, this topic of research could have on any numerical data which have been been more successful if there were enough collected through interviews of experts or did resources such as case laws, journal articles not distribute questionnaires. However regarding the corporate veil piercing in the Sri systematic analysis of case laws was based on Lankan context. the positivist paradigm of the doctrinal research. The main reason not to choose the quantitative method or a mixed method of IV.LITERATURE REVIEW qualitative and quantitative is, that the A company is a completely different legal previous researchers in this research area very personality. It is distinct from its members and rarely used the quantitative method or mixed the managers of the company and cannot be method of qualitative and quantitative because sued in respect of its liabilities. The foundation this research is based on the “positivist stone of separate legal personality of a paradigm”. company was established under English law in This research has included research methods the case of Salomon V Salomon Co. Ltd12. The like desk research method, case law research principal of distinct legal personality which is method, comparative method and deductive also called as doctrine of corporate veil has on reasoning method. The primary and the whole been applied by the courts since the secondary sources were mainly collected above judgment has been given. Later on through a desk research method. This method courts attempted to depart from this doctrine uses to examine the various grounds on when there were some hardships and piercing the veil of incorporation and various injustices caused. There is no closed list of theories and approaches adopted by UK circumstances to pierce the corporate veil13 jurisdiction. The case law method used to According to the Gower the judiciary would gather the information regarding the current lift corporate veil when it has been used as a law relating to veil piercing, various cloak to commit fraud or improper conduct14. approaches used by the courts to pierce the Pennington explained four inroads that the corporate veil and also to find out the new corporate veil can be pierced. They are developments of this theory introduced by the imposing taxation by government, when it is UK jurisdictions. The researcher used important to protect the public interest, or comparative method to compare and contrast where the company has been formed to bypass the similarities and differences between Sri certain law or contract and when company act Lankan and UK Jurisdictions. Finally, as agent or a trustee15. According to Arittha researcher has used deductive reasoning Wickramanayake16courts have been pierced method to utilise the findings of the research or lifted corporate veil in circumstances such for arriving conclusion and making as to prevent fraud17, prevent deliberate recommendations. avoidance of contractual obligations18, in a cases of deciding the premises of a company to When considering the validity and the reliability of the data used in this research, it is evident that those data are relevant and 12 directly associated with the research area. This [1897] A.C 22 13 Ottolenghi,s, ‘From peeping behind the corporate veil is because the data gathered through the to Ignoring it Completely’(1990) 53 MLR 338 primary and secondary sources, which are 14 Gower, Modem Company Law 4th ed., (1979), p.137. 15 Pennington, R., Pennington’s Company Law, 8th undoubtedly reliable. Finally, the researcher is ed.,(India,2006), pp.43-44 satisfied with the validity of her research being 16Wikramanayake Arittha., Attorney-at-Law, Company Law in Sri Lanka(2007), p. 41 able to achieve her objectives of the research. 17 Jones v Lipman [1962] 1 All ER 442. 18 Gilford Motor Co Ltd v Horne [1933] Ch 935.

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law apply specific status such as tax laws19, for the Corporation28Supreme Court held that the interests of national security20 or comply with company and its shareholders were distinct public policy21. legal entities and even though almost all the shares were held by a Government. In the case Under various eras UK judiciary has had of Visualingam V Liyanage29 Court held that different approaches regarding corporate veil. corporate veil will be lifted when companies’ The first period called the early conduct is illegal. This was emphasized also in experimentation period, from 1897 to the the case of Hatton national Bank V Second World War when the Salomonv. Sumathipala Jayawardhana and two Salomon22 was decided. In this period English others30. The section 03 of the Companies Act courts used to have different approaches to the No 07 0f 2007 Sri Lanka described the concept doctrine. The second period called heyday of of Limited Liability comes under the 31 and sec the doctrine, which is after the War and 87 limits the liability of the shareholders any continued until 1978, the year Woolfson v. act, default or an obligation of the company. Strathclyde Regional Council23was decided. The former shareholders’ liability limited In this period of time much of the vitality of the under Section 269 of companies act Sri Lanka doctrine has been used. Lord Denning has and they are not liable for the defaults of the done an enormous contribution regarding the company. The section 49 of Companies Act of interpretation on doctrine of corporate veil in Sri Lanka protect the shareholder’s rights over this era. He has introduced the single economic the share. On the other hand, Sec 219(1) unit theory. Under this theory court consider creates liability for wrongful trading of the mother corporation and its subsidiaries as directors and sec 375(1) provides guidelines a single economic unit. The third period, which to lifting of corporate veil under fraudulent is continuous up till today and doctrine uses trading. The scope of companies’ act of Sri disfavour fully24. In recent history cases of Lanka regarding the corporate veil is more Beckett Investment Management Group v generalised and it is clear that legislature has Hall25and Stone &Rolls v. Moore Stephens26 still not properly addressed the gray areas of and Prest V petrodel Resources Ltd27courts separate legal entity. There is no any measure did not hesitate to pierce the veil. regarding the piercing of corporate veil. It is In Sri Lankan scenario there are not much essential to reform law with appropriate legal cases decided in courts regarding the provisions meet the needs of society to protect corporate veil doctrine. It is also observed the innocent parties from fraudulent acts of courts have narrow down their approaches companies as well as to provide guidelines for when it comes to interpretation of separate judiciary to be act in much broader sense to legal personality. In the case of Trade ensure justice. Exchange (Ceylon) Ltd v Asian Hotels

V.ANALYSIS

19 Adams V Cape Industries Plc [1991] 1All ER 751. The statutory provisions reveal the prevailing 20 Daimler Co Ltd v Continental Tyre & Rubber Co Ltd policy of the state and diminish the judicial [1916] 2 AC 307. 21 ex p Factortame Ltd [1991] 3 All ER 769. discretion. The statutory requirements abide 22 [1897] A.C 22. the judges even the outcome of those 23 [1978] SLT 159. restrictions are contemplated. These statutory 24 Cheng T.K ., 'The Corporate Veil Doctrine Revisited: ‘A Comparative Study of the English and the US Corporate Veil Doctrines’ ' [2011] 34(2) Boston College 28 [1981] 1 SLR 67. International and Comparative Law Review pp.334-336 29 [1983] 2 SLR 31. 25 [2007] EWCA Civ 613. 26 [2009] 1 AC 1391. 30 [2007]1 S L R 181. 27 [2013] 3 WLR 1. 31 Companies Act No 07 of 2007.

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law exception removing the “shield of limited are considered as the backbone of commercial liability” which used by the company law and most important bases for economic shareholders and directors. It is also imposed developments. However, in the form of sanction for wrongdoings committed by those business these corporate monsters perform people. illegal acts such as shielding assets from creditors and other claimants, money When comparing the Sri Lankan Company Act laundering, corruption, hiding and try to take with the English Company Act there are some the undue advantage from the corporate similarities, such as sec- 993 of UK Act and sec- separate entity. Therefore, it is necessary to 375 of Sri Lankan act which both acts accept impose control over such misconducts and the criminal and civil liabilities. Apart from judiciary should play an important role that the sec 375(2) is equivalent to the sec sticking the balance between saving the 213-217 of insolvency Act of 1985 UK. Sri investments and ensuring justice to the Lanka act has gone much further than UK act society. One such control is piercing the veil of because not only liquidator but any creditor incorporation to identify the actors’ hind can make application to the court. When behind it and impose liability. considering the provisions of the Company Employment Rights Act 1996 UK, it seems Sri This research was focused on the adequacy of Lanka is lacking behind those provisions. statutory provisions in the Companies Act Sri When looking at the provisions of Companies Lanka34 regarding the piercing of corporate Act of Sri Lanka, it is observed “When justice veil, the development of statutory provisions required” is the basis Sri Lanka use to pierce and case laws in Sri Lanka in comparison to UK the veil of incorporation. This is contradictory law and if needed, to recommend necessary with the current position in the UK32. reforms to the Companies Act35 Sri Lanka. When considering the vagueness created by When considering the development of case law the judicial inroads, it is obvious that statutory regarding the piercing of corporate veil in Sri exceptions are on the rise and judicial Lanka, it is obvious that generally Sri Lankan pronouncements on the decrease regarding law is following the footsteps of UK and which the piercing of corporate veil. However, the is still hesitate to pierce the veil of most noted thing is Sri Lanka has influenced by incorporation by the judiciary. It is also the UK. evident even there are some applicable laws to pierce the corporate law, courts are still

unable to take the full advantage of those laws. Sri Lanka has very limited case laws36 which VI.RECCOMANDATIONS have dealt with veil piercing and its obvious courts always have more favour towards the Corporations represent the huge part of separate legal entity of a company37. In everyday life and multinational companies Ukwattha V DFCC Bank38 court has separated have been driving the economic globalization bank from his directors and accepted the throughout the world33. The separate juristic personality and limited liability of those companies are mostly discussed controversial 34Companies Act No 07 of 2007. topics in this modern business world. These 35 Ibid. 36This is mentioned in the recent book of K.Kanag- Isvaran et al, (2014).Company Law. 37Trade Exchange (Ceylon) Ltd v Asian Hotels 32Prest V Prestendol [2013] 3 WLR 1. Corporation [1981] 1 SLR 67, Supreme Court held that 33Alexandra Horvathova et al. (2016) Piercing the the company and its shareholders were distinct legal Corporate Veil US lessons from Romania andSlovakia, entities and even though almost all the shares were held Chicago and Journal of International and by a Government Comparative Law, 17(1),Article 7. 38 [2004] 1 SLR 164.

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law doctrine of separate legal personality in an within the country. Judiciary also need to extreme level. Recently in Sri Lanka, there are setup unique guidelines, rules or grounds to massive frauds taken place and it is pierce the corporate veil (This is also lacking questionable whether the court able to in UK jurisdiction). interpret the law properly. The recent case of When considering the statutory veil piercing in Perpetual Treasuries Pvt Ltd and Others V Sri Lankan context, it is evident that Sri Lankan Central Bank of Sri Lanka and Others39, The Companies Act has satisfactory provisions to petitioner company has changed its name safeguard the creditors of the company. before the day file the proxy and proxy was However, it needs to include more provisions having the old name of the company. The and mechanisms to protect minority rubber stamp of the proxy included a new shareholders. It is also recommend to require company name and registration no. The Court from parent companies to publish the details dismissed the case considering the separate of their subsidiaries annually, which is lacking legal entity between two companies and held behind the current act. the petitioner company is no longer exists. Finally, the most important thing is the public However, in the case of Visualingam V convenience in this matter. People need to be Liyanage40 and Hatton national Bank V aware regarding the remedies to take actions Sumathipala Jayawardhana and two others41 on the corporate fraud cases and other similar Courts have changed their direction and pierce matters and to switch the red light to the the veil when the instances of separate legal wrongdoers. entity used as a device to defend creditors or used for the illegal improper purpose. The limitation made to above cases by a recent judgement of DFCC Bank V Muditha Perera and Others42 court accepted the separate legal personality principle and upheld the decision of ‘Solomon’. In the Golden Key Case43, one of the biggest frauds committed in Sri Lanka, Court order to pierce the corporate veil and order directors to pay the depositors by selling their personal assets. However, when comparing the Sri Lankan scenario with UK jurisdiction it is evident that Sri Lankan case law need more developments when piercing the veil of incorporation. Especially not only to deal with the fraud cases. Judiciary must follow the new developments/ improvements in UK jurisdiction have invented and Sri Lankan judges need more education regarding this doctrine in a context of lots of frauds occurring

39 CA Writ 37/17, Decided on 01/06/2017. 40 [1983] 2 SLR 31. 41 [2007]1 S L R 181. 42 SC Appeal 150/2010 (25/03/2014). 43 SC. FR. No. 191/09 with Nos. FR. 192/09, 197/09- 206/09, 208/09-216/09, 225/09, 226/09, 244/09, 246/09-255/09, 315/09, 335/09, 372/09(10/03/14).

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

Paper ID: 198 Legal Implications of COVID-19: Force Majeure and Contractual Obligations in International Sale of Goods

YP Wijerathna1 and BKM Jayasekera2

Faculty of Law, General Sir John Kotelawala Defence University, Sri Lanka

[email protected] Abstract - The year 2020 has been challenging pandemic on 11 March 2020. Hence, to contain for businesses worldwide with COVID-19 the virus, countries have resorted to various leading to the disruption of the global economy. measures to restrict movement, nationally and The unprecedented circumstances led by this internationally through national lockdowns, pandemic, inter alia, raise concerns pertinent to nationwide curfews, closure of the international the liability for failure to fulfil contractual borders and suspension of international travel. obligations in international commercial The unfavourable impact of COVID-19 on the contracts due to COVID-19. United Nations wide-spectrum of daily activities, particularly Convention on Contracts for the International on national and cross-border trade is Sale of Goods (CISG or Vienna Convention) tremendous. It has constrained the supply performs a significant role in the spectrum of chains. While only certain goods, such as international sales. Article 79 of the CISG grocery items, are in high demand, the demand reflects the legal concept of force majeure, for other types such as white goods has which provides a defence for non-performance decreased (PricewaterhouseCoopers, 2020). of contractual obligations in certain These unprecedented circumstances, inter alia, enumerated circumstances beyond the parties’ raise questions about the liability of parties to control. In this respect, the current research, international commercial contracts for failure through the doctrinal research methodology, to meet their contractual obligations due to reviews the application of force majeure to COVID-19. As the dilemma unfolds, the force grant relief for non-performance of contractual majeure clauses in contracts and the relevant obligations due to COVID-19 where a contract is laws could be useful to protect the parties. If a governed by the CISG. The study concludes that force majeure clause is absent in a certain COVID-19 is likely to be considered an contract, the parties will have to have recourse impediment beyond the control of the parties to the relevant laws. If the contract relates to under Article 79 of the CISG even though the international trade of goods, the CISG may likelihood of successful invocation of the article apply. In view of this, the current paper intends will vary depending on the circumstances of to examine the application of force majeure to each case. grant relief for non-performance of contractual Keywords— COVID-19, International Trade, , obligations due to COVID-19, in instances where Sale of Goods, Contractual Obligations, Force the CISG governs a contract. Majeure. II. METHODOLOGY I. INTRODUCTION This doctrinal research involved a close The novel Coronavirus disease 2019, commonly analysis of primary sources such as known as COVID-19, was initially identified in international Conventions and secondary December 2019 in Wuhan, China. Thenceforth, sources such as books, journal articles along this outbreak significantly grew across with online sources to offer a reasoned and international borders, leading the World Health coherent account of the relevant law. The Organisation to characterise COVID-19 as a researchers conducted an in-depth analysis of

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law the provisions of the CISG to address the countries (in French, German, Italian and even research question regarding how force majeure Chinese law), is not typically recognised in operates to grant relief for non-performance of common law countries (Balestra, 2020). A force contractual obligations due to COVID-19, where majeure is a civil law concept that has no settled the CISG governs a contract. The sole aim of this meaning in the common law. It must be doctrinal research is to describe the relevant expressly referred to and defined in a contract body of law and how it applies (Dobinson and (Dalmia, 2020). When a contract has no force Johns, 2007). In that sense, this research is majeure clause, there still may be protection for purely theoretical. the parties under doctrines of frustration, impracticality and impossibility, but the Since the area under scrutiny; contractual exceptions may be narrower than those offered obligations in light of the crisis created by by more specific force majeure clauses (Sircar, COVID-19 is a novel issue, the absence of 2020). Generally, most international judicial decisions on the particular matter to commercial contracts include a force majeure date, has been a limitation to the research. The clause (Balestra, 2020). research scope is restricted to the contractual obligations of the contracts that are governed The wording of a force majeure clause is crucial. under the CISG. The exact scope of the clause will depend upon the wording used to construct the clause. Force III. DISCUSSION AND ANALYSIS Majeure clauses come in many shapes and A. Force Majeure Clauses sizes., ranging from the simple clause providing It is an internationally recognised principle that for cancellation of the contract if the contracts must be entirely performed by both performance is interrupted by circumstances parties (pacta sunt servanda). However, if embraced within the term force majeure, to parties to a contract are unable to duly fulfil the clauses of immense complexity, including, inter contractual obligations due to the occurrence of alia, a list of excusing events, provisions for an event beyond their reasonable control, notices to be issued to the promisee and would the obligor be liable for the non- detailing the consequences of the force majeure performance or can that party claim event (McKendrick, 1995). exoneration? In such events, the law provides Generally, an elaborated force majeure clause relief through the operation of force majeure. may have three fundamental components The term force majeure refers to a superior (McKendrick, 2018). The first component is the force event such as acts of God or acts of war. In description of the events that invoke the clause. the law of contract, a force majeure clause is a The description of the force majeure events is type of clause which warrants a party to a commonly divided into two parts. The first part contract to suspend or terminate the contract consists of a list of certain events whereas the upon the development of a situation that second part includes a general provision that prevents, impedes or delays the performance of seeks to embrace events that are absent in the the contract (McKendrick, 2018). The objective specific list. The second component of a clause of a force majeure clause is two-fold; allocating includes obligations of the parties concerning risk and putting the parties on notice of events the reporting of the occurrence of the force that may suspend or excuse service (Dalmia, majeure event. This will cover the matters such 2020). Typically, force majeure events may as the person to whom the report is to be made, include fire, flood, civil unrest, or terrorist the time at which the report is to be made, the attack. form of the report and the consequences of The concept of force majeure which originates failing to report in a specified manner. Yet, it is from Roman law and is found in civil law to note that all force majeure clauses do not

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law have this component. The third component It applies to the sale of goods when both parties consists of the remedial consequences of the to the contract of sale have their places of occurrence of a force majeure event. A clause business in different States that are both can grant an extension of time, suspension or Contracting States unless the parties have variation or the termination of the contract. excluded its application under Article 6 of the CISG. However, even if one or both parties do In the absence of a definition of force majeure in not have their place of business in a contracting statute or common law, the parties to a contract State, the CISG may apply, “when the rules of are free to agree what will amount to a force private international law lead to the application majeure for the purpose of their contract, of the law of a Contracting State”, subject to the reporting obligations and what the limitation in Article 95 in the Convention. For consequences will be if such an event happens instance, if two parties in France and Sri Lanka (Longworth and Jones, 2020). The burden of have chosen French law as the law of the proof lies with the party that seeks to invoke contract, the CISG would normally apply since the force majeure clause. France is a contracting State although Sri Lanka B. The Effect of Force Majeure in Contracts is not. Further, when deciding the application of under the CISG during COVID-19 Crisis. the CISG, the nationality of the parties or the With the closure of international borders and civil or commercial character of the parties or of the implementation of different social the contract (for instance, the place where the distancing methods, the pandemic has led to a buyer takes delivery and whether the goods are financial slowdown across countries in many to move from one country to another country) sectors and has created obstructions of remains irrelevant. business. Given the situation, an inevitable However, if the fact that the parties have their concern arises concerning the inability to places of business in different States does not perform the contractual obligations in cross- appear either from the contract or from any border trade. Obligations such as provisions of dealings between, or from information goods or services are largely affected in the disclosed by the parties at any time before or at current circumstances. In view of this, this the conclusion of the contract, that fact is to be section of the research paper critically analyses disregarded. There are further limitations to the the function of force majeure during COVID-19 application of the CISG. The Convention does crisis to relieve those who are parties to not apply to certain types of sales, viz. sales of contracts that come within the purview of the goods bought for personal, family or household CISG. use, sales by auction, sales on execution or 1) The Sphere of Application of the CISG: The otherwise by authority of law, sales of stocks, CISG seeks to overcome the disparities between shares, investment securities, negotiable the different legal systems around the world, instruments or money, sales of ships, vessels, particularly between the civil law (French and hovercraft or aircraft and sales of electricity. German sub-traditions) and the common law Unless a contract expressly excludes the (English and American sub-traditions), through application of the CISG or the parties otherwise building a uniform law for the international sale so indicate, the CISG can automatically apply to of goods (Henseler, 2007). Prior to analysing transactions of a party with foreign buyers or force majeure under CISG, it is necessary to suppliers of raw materials, commodities and examine briefly, the sphere of application of the manufactured goods (McMahon, 2017). Convention. Articles 1-6 of the CISG details the 2) Force Majeure under the CISG: The term force scope of the application. The CISG applies to majeure is not explicitly used in the CISG. contracts in two ways. However, it is widely acknowledged that

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law archetypal instances of force majeure qualify as d) The non-performing party must show a common cause for exemption from liability that the non- performance is due to the under Article 79 of the CISG. Article 79(1) impediment. specifies as follows:

A party is not liable for a failure to perform any Also, pursuant to Article 79(4) of the CISG, if the of his obligations if he proves that the failure party in breach does not comply with the was due to an impediment beyond his control requirement of giving a notice to the innocent and that he could not reasonably be expected to party regarding the impediment and its effect have taken the impediment into account at the on the inability to perform within a reasonable time of the conclusion of the contract or to have time after the non-performing party knew or avoided or overcome it, or its consequences. ought to have known of the impediment, that Accordingly, an impediment beyond a party’s party will be liable to pay damages resulting control is considered the basis for force majeure from the non-receipt of such notice. (Alper, 2020). Scrutiny of Article 79(1) depicts The effect of Article 79 of the CISG is providing that there are four requirements to satisfy for a defence to the non-performing party of a successful invocation of the defence. contract a defence against an action for a) Presence of an impediment that is damages and not to terminate the contract beyond the party’s control. (Nicholas, 1989). Hence, if a party is excused from the non-performing, the party is not liable Whether circumstances amount to an for damages. However, the other party holds impediment in terms of Article 79 of the CISG is the right to avoid the contract in case of a determined based on the contractual allocation fundamental breach pursuant to other of risk, trade usages and the typical sphere of provisions under the title of remedies under the control of the party in breach (Linklaters, CISG (Bund, 1998). 2020). It is also noteworthy that the CISG imposes b) The impediment is unforeseeable. liability on the party relying of the breach of This means that the impediment was not contract as well. Article 77 of the CISG dictates foreseen at the time the contract was that the parties shall take reasonable measures concluded. Whether the requirement of to mitigate damages caused by the other party. unforeseeability is satisfied will be decided by In the event of noncompliance, the party in applying the objective standard of a reasonable breach will be entitled to claim a reduction in person in the position of the party in breach at damages. Further, it is notable that under the time, the relevant contract was concluded Article 79(3) of the CISG, temporary (Linklaters, 2020). impediments will only temporarily excuse the c) The impediment and its consequences obligor for the period for which the impediment could not have been reasonably overcome or exists. The excuse is not permanent. avoided. 3) COVID-19 pandemic and Article 79 of the For instance, it would be considered whether CISG: The kind of unforeseen disruption to lives the parties sought an alternative source of and businesses that the current world is goods or attempted to arrange an alternative experiencing due to COVID-19 is what one means of transport. This will also be expects a force majeure clause is constructed to ascertained with reference to the contractual respond to (Longworth and Jones, 2020). Alper allocation of risk. (2020) and Kuhne (2020) comment that in view of the early case law and Article 79(1) of the CISG, COVID-19 pandemic is likely to be

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law considered a force majeure event. Clearly, the seemingly remain impermanent. Hence, the impediment caused by COVID-19 is beyond the relief granted through Article 79 of the CISG for reasonable control of parties. It should also be non-performance in international contracts will relatively easy in most cases to prove the causal be in effect only until the crisis subsists. It link between non-performance and COVID-19; means if the other party has not avoided the that non- performance is due to an impediment contract; the party in breach will be liable to as a result of COVID-19. Whether the parties perform the contractual obligations when the could have avoided or overcome the impediment passes (Bund, 1998). consequences of COVID-19 would have to be In the event the parties to contracts that are decided by ascertaining the circumstances of subject to CISG wish to derogate from Article 79 each case (Alper, 2020). of the Convention, they can choose to include a As for precedent case law concerning a force majeure or hardship clauses in the pandemic, there is precedent CISG case decided contract and agree upon more flexible and by the China International Economic and Trade broader terms and consequence in view of a Arbitration Commission [CIETAC] (PRC) in force majeure event. Notably, contractual 2005 concerning the Severe Acute Respiratory guarantees also may constrain the degree to Syndrome (SARS) outbreak (Arbitration Award which parties can rely on this Article 2005, L-Lysine case, [2005]). In this arbitral (Linklaters, 2020). award, the tribunal decided that the seller could IV. CONCLUSION not claim SARS as a force majeure event and get excused from performance under Article 79 of In light of the analysis of Article 79 of the CISG the CISG since SARS had happened a few and the judicial precedent, force majeure can, months before the contract was signed. The seemingly, operate to excuse non-performance requirement of foreseeability was not satisfied. as a result of COVID-19 provided that the elements of the Article are duly fulfilled. Given Further, it is worth noting that, generally, under the precedent, Article 79, however, is unlikely Article 79 of the CISG, economic hardship alone to provide relief to non-performing parties of is not perceived as force majeure unless the contracts that were entered after COVID-19 was performance becomes unequivocally officially declared a global pandemic by the burdensome for one of the parties. For instance, WHO. In fact, parties to contracts that were a case decided in 2009 by the Belgian Supreme executed after the pandemic went viral will Court, Scafom International BV v. Lorraine Tubes presumably face difficulties in establishing that S.A.S., where the supplier of steel tubes claimed the impediment was not foreseeable. The that steel prices had abruptly risen; the element of foreseeability will not be an issue for Supreme Court, in connection with Article 79 of contracts that were executed before COVID-19 the CISG, ruled that: appeared in the globe since the contracting Changed circumstances that were not parties could not have possibly foreseen any reasonably foreseeable at the time of the massive economic interruption that a tiny virus conclusion of the contract and that are could cause in this ear of technology and unequivocally of a nature to increase the science. burden of performance of the contract in a One of the main grounds for non-performance disproportionate manner, can, under in this time of COVID-19 crisis would be due to circumstances, form an impediment in the the economic hardships. Yet, economic sense of this provision of the treaty. hardships are not commonly considered a basis It is also to be observed that the crisis created for force majeure, to invoke Article 79 of the by COVID-19, similar to that of SARS and Middle CISG. Yet, if a party that has highly been affected East Respiratory Syndrome (MERS) will to the detriment by a hardship that has been

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law triggered by COVID-19, this should be a ground https://www.lexology.com/library/detail.aspx? for force majeure to ensure justice and grant g=d63bbf8d-64ec-4595-ab87-633934115ab0 due relief that sufferer. [Accessed 16 Jun. 2020]. Dobinson, I. and Johns, F. (2007). Qualitative Legal Research. In: Research Methods for Law. Keeping the above discussion into Edinburgh: Edinburgh University Press, p.19. consideration, the implications of the COVID-19 in international contracts under CISG would Henseler, P. (2007). The Application in the have to be decided on the case-by-case basis. To Contracting States of the United Nations receive relief under the CISG for the Convention on Contracts for the International impediment created by COVID-19, parties are Sale of Goods (CISG). [online] http://www.hp- advised to adhere to the crucial requirements, legal.com/. Available at: http://www.hp- e.g., tendering reasonable notice of non- legal.com/images/stories/aktuelles/cisg_applic performance, take requisite measures to ation.pdf [Accessed 16 Jun. 2020]. mitigate the resulting losses of the pandemic, Kuhne, W.M. (2020). The Impact of COVID-19 on e.g., making negotiating to preserve the contract International Supply Contracts | Insights | DLA and other steps to that would be necessary to Piper Global Law Firm. [online] DLA Piper. allow establishing the losses, e.g., maintaining Available at: proper records and gathering evidence of the https://www.dlapiper.com/it/italy/insights/pu losses or delays. blications/2020/05/the-impact-of-covid-19- V. REFERENCES on-international-supply-contracts/ [Accessed 17 Jun. 2020]. Alper, G. (2020). COVID-19: Force Majeure Under CISG. [online] www.jurist.org. Available Linklaters (2020). Covid-19: Impact on at: commercial contracts – CISG | Publications | https://www.jurist.org/commentary/2020/05 Insights | Linklaters. [online] /gizem-alper-force-majeure/ [Accessed 16 Jun. www.linklaters.com. Available at: 2020]. https://www.linklaters.com/en/insights/publi cations/2020/march/novel-coronavirus- Arbitration Award 2005, L-Lysine case [2005] commercial-contracts/novel-coronavirus- (China International Economic & Trade impact-on-commercial-contracts/un- Arbitration Commission CIETAC (PRC)) convention-on-the-international-sale-of-goods- Available at: cisg [Accessed 16 Jun. 2020]. http://cisgw3.law.pace.edu/cases/050305c1.ht ml [Accessed 17 Jun. 2020]. Mckendrick, E. (2013). Force Majeure and Frustration of Contract. 2nd ed. London: Balestra, M. (2020). International Contracts and Informa Law. Coronavirus from an Italian Perspective. [online] Lex IBC. Available at: Mckendrick, E. (2018). Contract Law: Text, Cases https://www.lexibc.com/news/international- and Materials. 8th ed. Oxford: Oxford Unversity contracts-and-coronavirus-from-an-italian- Press, pp.398–400. perspective/ [Accessed 16 Jun. 2020]. McMahon, J.P. (2017). Guide for Managers and Bund, J.M. (1998). Force Majeure Clauses: Counsel: Applying the CISG. [online] Institute of Drafting Advice for the CISG Practitioner. International Commercial Law. Available at: Journal of Law and Commerce, 17, p.382. https://iicl.law.pace.edu/cisg/page/guide- managers-and-counsel-applying- Dalmia, V.P. (2020). The Doctrine of Frustration cisg#B.%20What%20is [Accessed 16 Jun. and Force Majeure: Covid 19 | Lexology. [online] 2020]. www.lexology.com. Available at:

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Nicholas, B. (1989). The Vienna Convention on from the Faculty of Law, University of Colombo International Sales Law. Law Quarterly Review, and an LL.M in International Business and 105, pp.233–235. Commercial Law from Ealing Law School, University of West London. She is currently PricewaterhouseCoopers (2020). COVID-19 reading for a PhD. Ms Wijerathna is also Outbreak Impact on Sri Lanka and qualified as a Notary Public, Commissioner for Recommendations. [online] PwC. Available at: Oaths and a Company Secretary. Her primary https://www.pwc.com/lk/en/assets/COVID- research areas are Company Law and Business 19-Impact-on-Sri-Lanka-PwC.pdf [Accessed 18 Law. Ms Wijerathna has published in numerous Jun. 2020]. scholarly journals. She has also presented Scafom International BV v. Lorraine Tubes S.A.S. research in national and international [2009] (Supreme Court) Available at: conferences and has won multiple research http://cisgw3.law.pace.edu/cases/090619b1.ht awards. ml [Accessed 17 Jun. 2020]. Sircar, M. (2020). Business Interruption and Contractual Nonperformance: Common Law Principles of Frustration, Impracticability and Impossibility. [online] Hutchison PLLC. Available at: https://www.hutchlaw.com/blog/business- interruption-and-contractual-nonperformance- common-law-principles-of-frustration- Co-author, B. Kalyani Mala Jayasekera is the impracticability-and-impossibility [Accessed 18 Head of the Department and Senior Lecturer in Jun. 2020]. Faculty of Law, General Sir John Kotelawala Defence University, Sri Lanka. She is having United Nations Convention on Contracts for the Bachelor of Laws (Honors) and Master of Laws International Sale of Goods.[online] Available at: (LLM) with specialization in International Law. https://www.uncitral.org/pdf/english/texts/sa Additionally, she is an Attorney-at-Law at the les/cisg/V1056997-CISG-e-book.pdf [Accessed Supreme Court of Sri Lanka, and a Notary 16 Jun. 2020]. Public, Commissioner for Oaths and Registered Author Biographies Company Secretary. She has been teaching Public International Law, Private International Law and Interpretation of statutes in undergraduate and post-graduate courses. She has published articles in book chapters, prominent law journals along with attending

and speaking at law conferences. She was an editor of KDU International Law Journal, KDU Co-author, Ms Yasoda Priyankari Wijerathna is Conference Abstract book and proceedings an Attorney-at-Law and a Lecturer in Law at the (Faculty of Law) and South Asian Law Review. Faculty of Law, General Sir John Kotelawala Defence University. She holds an LL.B (Hons)

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Copyright Protection of Application Programme Interfaces: An Analysis of the Sri Lankan Position

Shenali C. Dias

Chambers of Dr. HarshaCabral, President's Counsel

[email protected] Abstract - Application program interfaces Keywords - API, Copyright, Software, (APIs) are ubiquitous in our digital Interfaces, Fair Use experience as they are responsible for INTRODUCTION ensuring interoperability between software. However, the applicability of copyright law to Application Program Interfaces, more APIs has become a point of significant commonly referred to as APIs, have often contention. Last year the Supreme Court of been described as the glue that connects the the United States granted a writ of certiorari digital world. A more apt description is to review the U.S. Court of Appeals’ rulings on unlikely to be found as APIs are what ensure whether such software interfaces attract interoperability between different systems by copyright protection and whether the use of allowing for the seamless exchange of data an existing software interface in creating a between the said systems. Technological new program constitutes fair use. The advancements that are rapidly gaining questions raised in these legal proceedings traction such as the Internet of Things are have far ranging implications for the practices heavily reliant on APIs to achieve the level of and business models of the software industry interconnectivity required. Moreover, as of and any other businesses that rely on APIs for June 2020, there are over 23,100 web APIs network effects. This paper provides an recorded (ProgrammableWeb, 2020), a overview of the debate surrounding significant leap from the 2000 web APIs in copyright protection of APIs and then January 2010 (Santos, 2017). analyses the Sri Lankan Intellectual Property Considering how crucial APIs are to the Act, No. No. 36 of 2003 and case law relating digital experience, the question of copyright to copyright law within the country to in APIs is swiftly becoming the centre of consider the position of APIs under the global debate, particularly because a existing Sri Lankan intellectual property longstanding legal battle over APIs between regime. The analysis reveals that there are Google and Oracle has been granted certiorari several ambiguities and open questions by the United States Supreme Court to review under the Sri Lankan copyright regime which questions on copyright protection of APIs and create uncertainty as to whether APIs attract fair use in Google LLC v Oracle America, Inc. copyright protection. Further, it is unclear as (United States Supreme Court 2020). The to the applicability of the defence of fair use issues raised in this litigation are of to allow copying of APIs in limited significant relevance to other jurisdictions circumstances in the event of copyright regarding the treatment of APIs. This paper protection. This gives rise to the same proposes to analyse Sri Lanka’s copyright questions of law raised in the Google v Oracle regime to see whether it would raise similar proceedings. As such, it is recommended that questions of law as those raised in the Google the Legislature intervene and provide v. Oracle proceedings. guidance to address the uncertainty created II. RESEARCH METHODOLOGY for the country’s software industry and other businesses reliant on APIs.

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This paper provides a brief overview of the generate data by themselves but function as history of the API copyright debate and information pathways. common arguments raised in relation thereof. The use of APIs was initially limited to Thereafter, the provisions of the Sri Lankan achieving functional interoperability by Intellectual Property Act, No. 36 of 2003 and software industries but now there has been a case law relating to intellectual property are growing interest by businesses in leveraging examined to consider whether the Sri Lankan APIs to monetise data, create strategic intellectual property regime when applied to partnerships and gain access to more data to the context of APIs gives rise to the same create new products (Iyengar, Khanna, underlying ambiguities that gave rise to the Ramdath and Stephens 2017). For example, Google v. Oracle case. close upon 800 of the web APIs recorded AN INTRODUCTION TO APIs AND ISSUES (ProgrammableWeb, 2020) are related to UNDER COPYRIGHT LAW banks which signify a growing interest by banks to open up customer and payment data A Brief Overview of APIs to third party providers as part of the open APIs are sets of rules that allow one software banking movement. to communicate with another software. APIs Storms Ahead: The Oracle v Google Saga function in a number of contexts, including enabling internal interoperability with other The European approach to copyright in software of the same ecosystem and external functional aspects was established in the case interoperability with software developed by of SAS Institute Inc v World Programming third parties. In the absence of APIs, Limited (2012), wherein the Court of Justice developers would have to write new code of the European Union case held that Article every time they wanted their software to 1(2) of the Council Directive 91/250/EEC of interact with another software. To 14 May 1991 must be interpreted to mean circumvent this painstaking procedure, APIs that the functionality of a computer program are a set of instructions for a particular did not constitute a form of expression and software that, on a basic level, allows was therefore not protectable by copyright. developers to make interoperable software. Meanwhile, across the pond, copyright In essence, APIs ensure interoperability jurisprudence in the United States had largely without software developers needing to stabilised on the idea that features that were understand how the other party’s software commonly deemed functional or network works and obviates the need for the aspects of software were not subject to developer to develop new code each time she copyright protection after initial copyright wants to interact with a software system. battles addressing the same in the United In theory, APIs are purely functional as they States in the early 1990s (Menell, 2018). permit communication and facilitate data However, the question was once again raised exchanges between software rather than when Oracle America, Inc filed a case against generating data of their own accord. For Google, Inc (now Google LLC) in 2010 over 37 example, the Uber app utilises a Google Maps packages of code. Oracle America alleged that API to obtain location data from Google Maps. Google used Oracle’s JAVA APIs without The location data is generated by Google authorisation in its Android operating system Maps’ proprietary algorithm and the API acts and claimed approximately $9 billion in as a conduit for such information to be damages for lost revenue. transferred to the Uber app. Thus, APIs do not The trial court initially ruled that APIs did not attract copyright protection. In 2014, the

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

Court of Appeals for the Federal Circuit expression constitutes necessary expression; overruled the trial court’s ruling on the basis therefore, such APIs cannot be subject to that the JAVA API declarations attracted copyright protection (Balganesh, S., Nimmer, copyright protection due to the creativity D. and Menell, P., 2020). involved in their creation. Further, it has been argued that a ruling that Once again at the trial level, Google’s defence APIs attract copyright protection would have of fair use prevailed and the judgment was a stifling effect as it would confer on once again appealed to the Court of Appeals. copyright holders “a patent like veto The Court of Appeals for the Federal Circuit power…the ability of a copyright holder to held that the said use by Google did not control the operations of others’ products constitute fair use and remanded the case to merely because they use its programming the trial circuit for trial on damages. interface as a method for communicating or interoperating with the copyright holder’s Google subsequently appealed the case to the product” (Red Hat, Inc. Brief in Google v. Supreme Court to review the copyright and Oracle, 2019). Moreover, a lack of copyright fair use rulings of the Court of Appeal and protection would enable a more efficient certiorari was granted last year. The outcome development process as programmers can of this case is touted to have lasting copy and reimplement existing APIs without ramifications on the software industry and fear of claims of copyright infringement future technological innovation. (Electronic Frontier Foundation Brief in Common Arguments Regarding the Copyright Google v. Oracle, 2014). However, it must be Protection of APIs noted that the force of the interoperability The position of APIs under copyright law has argument greatly diminishes when APIs are been a point of contention. One school of copied for the purpose of creating software thought argues that APIs cannot attract that is deliberately not incompatible as copyright protection due to their functional specifically argued in Google v. Oracle (Brief nature. In the United States, copyright for SAS Institute Inc, 2020). protection of certain aspects of software has From a theoretical perspective, it has also historically revolved around the question of been posited that API developers cannot be functionality. In the United States case of included in the same category of creators of Lotus Development Corporation v Borland creative works as APIs are developed due to International Inc (1995), the Court held that necessity rather than due to seeking a specific the menu command hierarchy of a software reward for creative endeavour; therefore, cannot attract copyright as it merely allowed copyright protection is not necessary to users to control and use software without incentivise innovation (Sagdeo, 2018, p.255). requiring access to the underlying code. In An alternative school of thought believes that reaching this decision, the Court considered APIs should be afforded the same level of that if the menu command hierarchy received copyright protection as other software copyright protection, the same operation products. This is because it has been argued would have to be expressed in a different that there many different ways of expressing manner in every program. Therefore, by an API and the significant creative choices extension of this principle, APIs cannot taken by developers that amount to attract copyright as they serve a functional protectable expression under copyright law purpose. (Brief for the United States in Google v. A collateral argument is that APIs can only be Oracle, 2019). expressed in a standard manner and such

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Further, failing to confer copyright protection question was addressed by the Sri Lankan on APIs has been argued as undermining the Supreme Court in Director, Department of efforts and investments of proprietary Fisheries v. C. Aloy Fernando (2018) wherein software companies. (Brief for SAS Institute the Court had to make a finding of originality Inc, 2020). It has been contended that if APIs to see if a disputed work attracted copyright are protected by copyright, such a position prior to the proof of infringement. In coming expands the opportunities for software to its finding, the Court held that the companies to recoup their investments preparation of the work involved skill, choice through a variety of licensing options and of language and style, composition and they should be free to make such choices intellectual effort. This definition does not (Brief for SAS Institute Inc, 2020). necessarily preclude works made involving the sweat of the brow doctrine and leaves the IV. THE POSITION OF APIs UNDER SRI position open ended. As the lower threshold LANKAN COPYRIGHT LAW of the sweat of the brow doctrine is still open The outcome of Google v. Oracle would have under Sri Lankan law, the likelihood of APIs far reaching implications globally and should attracting copyright under Sri Lankan law is make academics and practitioners to look at significantly higher. their own legislation to see whether APIs The definition of a computer program is set attract copyright protection under their law. out under Section 5 of the Intellectual At this juncture, it necessitates the review of Property Act as a “set of instructions the Sri Lankan position on APIs and to expressed in words, codes, schemes or in any consider if the existing intellectual property other form, which is capable, when regime gives rise to similar legal issues as incorporated in a medium that the computer those encountered in Google v. Oracle. can read, of causing a computer to perform or Exploring the Question of Copyright achieve a particular task or result”. The term Protection of APIs under Sri Lankan Law computer is also defined under Section 5 of Under the Sri Lankan Intellectual Property the Intellectual Property Act to mean “an Act, No. 36 of 2003 (hereinafter ‘the electronic or similar device having Intellectual Property Act’), original computer information processing capabilities”. It is also programs are specifically protected as works interesting to note that these definitions in terms of Section 6(1)(a). reflect the same wording used in the Code of Intellectual Property (Amendment) Act, No. The definition of originality has differing 40 of 2000 which initially introduced standards globally and it has yet to gain copyright protection for software under Sri extensive judicial consideration in the Sri Lankan law. While the first API was Lankan courts on that specific question. developed in 2000, APIs only began to gain Under the Feist Publications Inc v Rural traction several years later. Telephone Service Co (1991) standard of the United States, a minimal level of creativity is As APIs are a set of instructions on how to needed for a work to constitute copyrightable communicate with software, they can, for the material. However, under the approach of the purposes of the Intellectual Property Act, be courts of the United Kingdom, even matters deemed to cause a computer to “achieve a that do not involve creative expression and particular task or result” by transferring simply involve the compilation of data may information. Returning to the Uber example, constitute copyrightable material (Cornish, T. when the app requires location data, it is one William, L. Aplin, D., 2013), often referred to of Google Maps’ APIs which achieves this by as the sweat of the brow doctrine. The facilitating the transfer of data from Google

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Maps. Thus, prima facie, APIs are protected without it, users would be unable to access or under Sri Lankan copyright law as they fall control the software’s functional capabilities. within the definition of a computer program Therefore, in theory, APIs can be deemed to under the Intellectual Property Act. fall within the category of a method of operation as they set out a method to allow However, it should be noted that on a strict interoperability between software systems. construction of the definition of a computer program, certain types of APIs may Further, Section 8(a) of the Intellectual potentially be excluded from copyright Property Act may also be interpreted to allow protection as the API does not always make a for a single work to be separated into “computer” perform or achieve a particular copyright protected and non-copyright result. The definition of a computer under the protected elements as Section 8(a) Intellectual Property Act seems to impose an specifically notes that the exempted implied restriction of the applicability of the categories do not obtain copyright protection Intellectual Property Act to scenarios “even if expressed, described, explained, involving physical devices with information illustrated or embodied in a work”. In light of processing capabilities. this, APIs may potentially be split into segments attracting copyright and purely Further, in terms of Section 8(a) of the utilitarian segments which do not attract Intellectual Property Act, copyright copyright. protection will not be extended to “any idea, procedure, system, method of operation, While it is an established principle of concept, principle, discovery or mere data, copyright law that an idea is not protected by even if expressed, described, explained, copyright but the expression thereof can illustrated or embodied in a work”. This attract copyright, it should also be noted that express removal of copyright protection for Section 8(a) allows for instances where the such matters is a new inclusion to Sri Lankan expression of an idea may, in certain intellectual property law as a comparative instances, not be subject to copyright. The provision was not included in the Code of wording of Section 8(a) may open the door Intellectual Property Act, No. 52 of 1979 as for the entry of an equivalent of the merger amended (‘Code of Intellectual Property’). doctrine, a judicial construct of U.S. copyright The Code of Intellectual Property was based law. Expounded in the United States Court of on the World Intellectual Property Appeals case of Morrisey v Procter & Gamble Organisation’s model law for developing Co (1967), the merger doctrine prevents countries (Cabral, 2004) and the said model courts from deeming a work as attracting law also did not include such a provision. copyright protection if there is only one or limited means of expressing the said works. While the wording of Section 8(a) of the This recognises that the idea and expression Intellectual Property Act has yet to receive have merged to the extent that they are judicial consideration in Sri Lanka, APIs have indivisible and, by virtue of such merger, the potential to fall within the wording copyright protection cannot be afforded to ‘method of operation’ in the aforementioned the work. However, whether Sri Lankan section due to their utilitarian nature. As per courts would accept such an interpretation or the United States case of Lotus Development reject the doctrine like their counterparts in Corporation v Borland International Inc the U.K. as in Ibcos Computers v Barclays (1995), ‘a method of operation’ refers to a Mercantile (1994) is to be seen. means by which a person operates something and therefore, the menu command hierarchy Thus, it is difficult to ascertain how the of software is uncopyrightable because, question of copyright protection of APIs

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law would be treated judicially in the event of a The utilitarian nature of APIs may support a legal dispute under Sri Lankan law. finding of fair use in terms of Section 11(2)(b) as APIs involve more than a series of creative B. The Potential Defence of Fair Use under Sri choices. Lankan Law Further, as per Section 11(2)(c), the degree of In the event of a finding of copyright copying is relevant. If the API is copied protection, standard industry practices such verbatim, it is unlikely to amount to fair use. as copying common elements would now be a However, if only features are copied and violation of the economic rights of the improved upon, there is a likelihood of copyright holder of the API. It is now coming to a finding of fair use. necessary to consider if the statutory formulation of the defence of fair use under Finally, assessing the market value and the Section 11 of the Intellectual Property Act can effect of use for the potential market or value be used to allow the industry to continue such of the copyrighted API in terms of Section practices. 11(2)(d) is heavily contextual. For example, if a monetised API is copied, there would be a Section 11(1) of the Intellectual Property Act market available for it. gives examples of purposes that constitute fair use which include criticism, comment, Thus, a finding of fair use in terms of Section news reporting, teaching, scholarship and 11 is heavily contextual and there is no clear research. It should be noted that Section 11 is indication under the Intellectual Property Act a non-exhaustive provision and can be that the copying of APIs would, in general, interpreted to include similar purposes. attract the defence of fair use under Sri Lankan law. Further, Section 11(2) sets out four factors to be considered; namely, the purpose and Implications of the Issues Pertaining to the character of the use, the nature of the Copyright Protection of APIs under Sri copyrighted work, amount and substantiality Lankan Law of the portion used and the effect of the use The wording of the Intellectual Property Act upon the potential market for or value of the and existing case law on intellectual property copyrighted work. It is interesting to note do not give rise to a clear stance on copyright that these factors reflect the same four factors on APIs. As noted in the Red Hat, Inc Brief in that are used in § 107 of the U.S. Copyright Oracle v Google (2019), technological Act and the outcome of the Google v Oracle innovation is likely to be disrupted if the saga could potentially be influential in future software industry is not certain as to where it interpretations of this section. stands. In the event APIs constitute On a first reading, of Section 11(2), it can be copyrightable works, players in the software argued that since APIs are used solely to industry may find that they are liable for achieve interoperability, there is no inherent inadvertent copying or they may find commercial value in copying the API itself. themselves reinventing the wheel by However, if under judicial consideration, the constantly having to create new APIs to avoid assessment of commercial use includes the copyright infringement. ancillary benefits that arise from the use of Further, the impact of such ambiguity may the API i.e. the ability to interoperate also be extended to businesses outside of the software due to the API and thereby software industry that are relying on APIs as improving the commercial viability of the a cornerstone for strategic expansions as it new software, it is likely to fail to satisfy opens the said businesses up to hitherto Section 11(2)(a).

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law unconsidered claims of copyright References infringement. Balganesh, S., Nimmer, D. and Menell, P. (2020) Google V. CONCLUSION v. Oracle Amicus Merits stage brief: Vindicating IP’s channeling principle and restoring jurisdictional APIs are often unconsidered and unseen balance to software copyright protection [online]. essentials in our digital lives. A determination Faculty Scholarship at Penn Law. 2148. Available at: APIs would have far reaching ramifications [Accessed on 6 June 2020] not only for the practices in the software Brief for Electronic Frontier Foundation as Amici Curiae industry but also other businesses that rely Supporting the Petitioner, Google v. Oracle (2014) (No. on APIs to facilitate growth via network 14-410). Available at: effects. [Accessed on 6 June 2020] Act, it is difficult to predict how APIs could be Brief for Red Hat, Inc as Amicus Curiae Supporting the treated. Whether APIs attract copyright, or Petitioner, Google v. Oracle (2019) (No. 18-956) only aspects thereof would attract copyright Available at: < and whether the fair use can be raised as a https://www.supremecourt.gov/DocketPDF/18/18- successful defence against infringement of 956/89492/20190225134815134_2019%2002%2025 %20AS%20FILED%20Red%20Hat%20Brief%20of%20 potential copyright in APIs are just some of Amicus%20Curiae.pdf> [Accessed on 6 June 2020] the questions that arise under our copyright Brief for SAS Institute Inc as Amicus Curiae, Google v regime within the context of APIs. Oracle (2020) (No.18-956) Available at: The circumstances are such that it behoves [Accessed on guidelines as to how APIs should be treated 13 June 2020] under the law. In the interim, one of the Brief for the United States as Amicus Curiae, Google v options available to the software industry to Oracle (2019) (No.18-956) Available at: safeguard themselves at this juncture would reducing the chances of attracting copyright [Accessed on 6 June 2020] protection. Failure by the Legislature to Director, Department of Fisheries v. C. Aloy Fernando provide clarification would result in the Sri SC/CHC/Appeal No. 36 of 2006 decided on 10.09.2018 Lankan software industry and all other Cabral, H (2004) Intellectual property law in Sri Lanka. industries that are looking to APIs for Colombo: Golden Graphics. strategic purposes to be left mired in Cornish, T. William, L. Aplin, D. (2013) Intellectual uncertainty and, in a worst case scenario, Property: Patents, Copyrights, Trademarks and Allied potentially subject to long drawn out legal Rights. London: Sweet & Maxwell. battles such as that of the proceedings Feist Publications Inc v Rural Telephone Service Co between Google and Oracle. (1991) 499 US 340 ACKNOWLEDGMENTS Google LLC v Oracle America, Inc. (United States Supreme Court 2020)

The Author would like to thank her fellow Ibcos Computers v Barclays Mercantile [1994] FSR 275 Warwick Business School alumnus, Mr. Vig Iyengar, K. Khanna, S. Ramdath, S. and Stephens, D. Kannan at Mosaik Analytics, for his invaluable (2017) What it really takes to capture the value of APIs feedback on the technical aspects of this [online] Available at: paper.

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law functions/mckinsey-digital/our-insights/what-it-really- 19th June 2020 is> [Accessed 20 June 2020]. Lotus Development Corporation v. Borland Biography of the Author International, Inc., 49 F. 3d 807, 815 (1st Cir. 1995), affirmed by an equally divided Court, 516 U. S. 233 (1996)

Menell, P (2018) Rise of the API Copyright Dead?: An updated epitaph for copyright protection of network and functional features of computer software. Harvard

Journal of Law & Technology, 206 – 489. Morrisey v. Procter & Gamble Co (1967) 379 F. 2d 675

Sagdeo, P (2018) Application programming interfaces The Author is a Junior Counsel in the and the standardization-value appropriation problem. Chambers of Dr. Harsha Cabral, President’s Harvard Journal of Law & Technology, 32 (1) Fall, pp. Counsel. She holds an LLB (Hons) from the 236-262 University of Warwick, an LLM in Santos, W. (2017) ‘API directory eclipses 17,000 API International Business Law from the National economy continues to surge.’ [online] University of Singapore and an MBA from the ProgrammableWeb. Available at: [Accessed 16 June 2020]. SAS Institute Inc v World Programming Limited (2012)

C-406/10

ProgrammableWeb (2020) Search the Largest API Directory on the Web [online] Available at:

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

Technical Session II: Session Summary Session Theme: Emerging Trends in Public Law: Legal and Economic Perspectives

Session Chair: Mohan Peiris PC

Technical Session II on Law was held on the The research titled ‘Establishing Rule of Law sub theme of ‘Emerging Trends in Public Law: to Achieve Sustainable Development: The Legal and Economic Perspectives’ and the Pathway for National Growth in Sri Lanka’ session was chaired by Mohan Peiris PC. He was presented by TD Walgama which was He served as the Attorney General of Sri focused on the development of a Lanka from 2008 to 2011 and as the Chief comprehensive framework with an effective Justice in Sri Lanka from 2013 to 2015. monitoring procedure and responsible institutions to achieve sustainable NS Liyana Muhandiram was the first development, which would lead its way to presenter of the technical session II. Her comply with international standards and research was on Right of the Host State to ultimately to national growth. Regulate the Environment and Investment Protection. She explored the legal Final research presented at technical session implications of each way by highlighting the IV was ‘Application of the Concept of most appropriate method to incorporate Reparation in Transitional Justice in Sri environmental concerns in the texture of Lanka’. It was a co authored research paper Bilateral Investment Treaties (BIT) in her by AN Hettiarachchi and WDS Rodrigo. They presentation. presented the paper suggesting adopt the victimcentric approach, thereby making it SPCT Abeysiriwardena, VR Algewatta and possible to address individual cases equally ALU Gamage presented their research titled and effectively rather than addressing The Failure of Guardians: Mount Lavinia grievances of specific communities. Artificial Beach and Public Trust Doctrine which was a timely research based on current Mohan Peiris, PC concluded the session by environmental concerns in the country. reflecting the importance of learning the law through a universal approach. Third presenter of the session was SBYM Duneesha Siwrathne. Her research was titled ‘How the Offence of Rape has been

Overshadowed by Marriage and its Impact on National Growth of Sri Lanka: A Critical Analysis from Legal and Economic Perspectives’. It was a interdisciplinary research which reflects both criminal law aspect and the economic impact of the offence of Rape. .

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Paper ID: 494 Right of the Host State to Regulate the Environment and Investment Protection - A Changing Landscape

NS Liyana Muhandiram

Department of Legal Studies, Open University of Sri Lanka

[email protected] Abstract - The increase in investment flows is I. INTRODUCTION one of the newest challenges in the pursuit of International Investment Law (IIL) and sustainable development. Generally, investors International Environment Law (IEL) are two establish their operations in countries that have distinct regimes that resulted from the less stringent environmental regulations to fragmentation of international reap maximum benefits from the investment. It law(Koskenniemi,2006). Until the principle of has been estimated that a 1% increase in sustainable development emerged foreign direct investment contributes to a environmental concerns were not integrated 0.04% increase in environmental pollution. In into the International Investment Agreements response to this challenge, countries have (IIAs)(Vinules,2012; Footer, 2009). revisited and re-framed their Bilateral Significantly, Part I of the Brundtland Investment Agreements (BITs) in a manner to Commission Report of 1987 and Principle 4 of balance the host state’s regulatory power the RIO Declaration recognize sustainable concerning its commitments to protect the development as a way-out to reconcile the environment with investment protection. tension between development and environment Accordingly, environment-related language has and accordingly affirmed that environmental been used by different states within the BITs to protection should be integrated into all preserve the regulatory power of the host state. development process to achieve the sustainable Such language can be identified mainly in seven development. As a part of IIAs, BITs are vitally ways; i) referring to the environment in important as more than 180 countries of the preambles of BITs, ii) reserving policy space for globe are a party to at least one the regulation of environment in general, iii) BIT(Footer,2009). reserving policy space for environmental The UNCTAD and various scholars have regulation for the specific subject matter, iv) identified many existing BITs as the first exceptional clause to indirect expropriation, v) generational BITs since they reflect mostly the none-lowering environmental standards to demands of the capital-exporting countries in attract investments, vi) environmental matters the developed world. They are not detailed in and investor-state disputes and vii) general nature. (World Investment Report,2015: promotion of progress in environmental Salacuse, 2015) One of the main criticisms protection and cooperation. The effect of each against these first generational BITs is that they way is different and therefore, this research are drafted in a way of hampering the State’s purposes to explore the legal implications of sovereign right to regulate the matters relating each way by highlighting the most appropriate to the environment, national security, public method to incorporate environmental concerns health, employment, and economic in the texture of the BIT. development. (Harten and et al,2010: Spears, Keywords—Bilateral Investment Agreements, 2010). When environmental state measures Regulatory power, Policy Space, Indirect which are taken to comply with the Expropriation, Non-Lowering Standards, investor- international environmental obligations of the state disputes host state negatively affect the protection of

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law investment, investors tend to make claims concerns have been integrated into modern against the host state. If the policy space for BITs. Each way of reference is different and the environmental concerns of the host state is not implication of them varies with the textual expressly stipulated in the BIT, non- formation of the BIT. The subsequent sections commercial concerns become less important in of the paper are dealt with it. The study the eye of the investor-state dispute settlement concludes by suggesting the most appropriate mechanism(ISDS) and many state measures get way of including environmental concerns halted at the arbitration. ( (Beharry and within the texture of BIT. Kurutzky,2015; Vinules,2012: Spears, 2010). Reseach Methodology With the realization of the fact that BITs are not Due to the analytical nature of the study, this harmless political declarations and they ‘bite’ research is primarily based on the qualitative state measures, countries like Venezuela, research approach. BITs signed by the Bolivia, and South Africa have rendered to countries were used as the primary sources and terminate their BITs while other states like books, refereed journal articles, arbitral Canada, United States, China, France, Norway, decisions, statements of the officials, conference and the United Kingdom tended to reframe the papers, and documents of non-governmental policy space in their BITs. organizations were used as secondary sources. The Second generational BITs preserve more RESULTS AND DISCUSSION regulatory autonomy and flexibility for host countries to adopt non-discriminatory According to a study done by the Organization measures having a bonafide intention for the for Economic Cooperation and Development general welfare. Such BITs have adopted the (OECD) in 2011, although only 6.5 percent of principle of sustainable development inter alia, the BITs concluded till 2010 contained the providing an explicit reference to the protection environment-related language in overall, an of the environment to restrain the discretionary essential dimension of the newly concluded IIAs power of the arbitral tribunals. This approach from the 1990s is that 89 percent of them has not only been followed by OECD members. include environmental concerns. However, Countires such as Ghana, India, Brazil, there are variations in the inclusion of Azerbaijan, and Serbia have also followed the environmental language in IIAs from BIT to BIT. same approach. These BITs purpose to balance For instance, Egypt, Germany, and the United the state’s environmental concerns with its Kingdom have less than 1% of the propensity of investment protection commitments and also inclusion of environmental concerns. assist the tribunals with precisely drafted BIT in Nonetheless, 83% of IIAs of Canada, 75% of IIAs interpretation. of New Zealand, 61% of IIAs of Japan, and 34% of IIAs of United States contain environmental Even according to Article 31.1 of the Vienna concerns in their BIT. Moreover, the modern Convention of the Law of Treaties(VCLT), the state practice has rapidly increased this ordinary meaning of the treaty is paramount tendency and the author of this research found important in treaty interpretation and potential that all the BITs concluded in 2017,2018, and conflicts between environmental concerns and 2019 contain environment-related language. investment protection can be considerably mitigated through the incorporation of explicit As the OECD study has pointed out, the way of reference to the environmental concerns. By inclusion of environment-related language can now, more than 50 countries have revisited be identified mainly in seven ways; i) general their BITs and revised their model BITs. language in preambles of BITs, ii) reserving policy space for the regulation of environment In this backdrop, the purpose of this study is to in general, iii) reserving policy space for the explore the ways in which environmental

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law environment regulation for the specific subject A state measure within the meaning of this matter, iv) exceptional clause to indirect exception clause would be legal, irrespective of expropriation, v) none-lowering environmental its non-compliance with other provisions of standards to attract investments, vi) BIT(Salacuse,2015: Dolzer,2012; Ranjan,2012). environmental matters and investor-state The effectiveness of this provision has been disputes and vii) general promotion of progress further strengthened in some BITs specifying in environmental protection and the nexus between the state measure and the cooperation(Gordan and Phol,2011). This policy objective. For instance, the phrase ‘as it expression proves that environmental concerns considers appropriate to’ in Article 9 of Rwanda- have come forward in treaty negotiations in the Arab BIT is having self-judging nature and does contemporary world. A BIT may use one or not as strict as the phrase ‘as it considers.’ It multiple references to the environment in any gives policy space for the host state to decide of the ways mentioned above. the limitations and legitimize its state measures which purpose to regulate the environment. General language in preambles of BITs Extending this flexibility further, Article 12(6) The preamble mainly deals with the objective of the US Model BIT has provided the procedure and purpose of the investment agreements. It for any party to consult the other party recognizes that the promotion of investment regarding any matter relating to the exception can be achieved inter alia without relaxing clause. This provides an opportunity for the environmental measures. Reference to parties to negotiate their differences in a environmental concerns or sustainable flexible manner. development in the preamble does not create Reserving policy space for environmental any right or obligation between the parties; it regulation for specific subject matter only appears hortatory and inspirational nature (Beharry and Kurutzky,2015). However, Moreover, a limited number of treaties reserves according to Article 31 (1) and (2) of the VCLT, policy rights for a particular purpose on the the preamble helps in interpreting the object environment in the performance requirement and purpose of the treaty. clause or national treatment clause. Performance requirements allow states to take Reserving policy space for the regulation of the measures necessary to protect the environment environment in general and natural resources(Ex-US model BIT, The most used expression on the environment Article8(3)(c): Canada- Moldova BIT, Article in second-generation BITs is reserving policy 9.2). Occasionally, some BITs might include space for regulating the environment. This is provisions that give retrospective effect to the famously identified as an exception clause. This exceptions of national treatment, including the clause is significant as it purposes to exempt environmental measures(Ex- Article 3.3 of certain transactions or people or situations Russia-Sweden BIT). In Congo-US BIT of 1990, from the applicability of the commitments in an Congo has reserved its right to make limited investment agreement to protect the interests exceptions in inter alia drinking water supply. of the host state. In some agreements, this These provisions further provide latitude for clause is referred to as the general exception, as the host state to validate the state regulation. environmental concerns, as beneficiaries of the Exceptional clause to indirect expropriation protective norms as human, animal, plant life, or health and some to sustainable development Moreover, explicit recognition of environmental and environmental protection or right to concerns that tighten the scope of expropriation regulate. is also a well-known way to reduce the tension between regulatory power and promotion of the investment(Gordon and Phol 2001:

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Ranjan,2012). When the text of the BIT does not to treaty. For instance, Article 17 (2) of Brazil- differentiate non-compensable regulation with Guyana BIT has provided a procedure for the compensable expropriation, the tribunal adopts parties to settle their issues relating to lowering three tests to determine the case; namely, the standards by consultation. However, in order to sole effect test, police power test, and reap the maximum benefit from this non- proportionality test. However, famous arbitral lowering environmental standard, a country awards such as Metalclad v Mexico, Tecmed v has to incorporate this standard into it’s all the Mexico and Santa Elena v Costa Rica are BIT commitments including the most favored evidence of the heavy burden placed on the nation’s (MFN)treatment. Otherwise, the MFN government to ensure legal certainty. treatment would enable investors to attract Furthermore, the police power test has been more favorable substantial protection given confused with the well-settled right of the State under another BIT of the host state. to expropriate foreign investment under Environmental matters and investor-state customary international law disputes lawfully(Ranjan,2012). Hence, to avoid these confusions the second generation BITs have ISDS mechanism is the most effective exempted bona fide and non-discriminatory international remedy available for the investor, state measures that purpose to ensure and also it facilitates attracting more foreign environmental protection from the indirect investors from the viewpoint of the host state. expropriation(Ex-Article 6.8 of Argentina-Arab As Vinuales points out, approximately 40 claims BIT, Annex B10 of Canada-Mongolia BIT and with environmental components have been Article 5.5 of India’s Model BIT). Further, BITs brought before arbitral tribunals from 2000- have provided precise limitations to the 2010. Second generation BITs have attempted indirect expropriation stipulating the proper to avoid the criticisms made on the ISDS criteria viz. economic impact of the state mechanism against its democratic deficit. For measure, the intervention of the reasonable instance, Model BIT of Canada and Model BIT of expectations of the investors, and character of USA have accepted amicus curiae briefs in their the state action which requires a case by case, BITs. In Biwater v Tanzania the tribunal fact-based inquiry. This criterion has been accepted the significance of the amici’s followed in the US Model, Canada-Mongolia BIT, contribution as it affirmed public interest in the and Japan-Argentina BIT. Moreover, this investor-state dispute, convincing the tribunal approach lessens the discretionary power given about sustainable development, right to water to the arbitrary tribunals to decide upon the and international corporate social disputes. responsibility. Moreover, Both in Methanex Corporation v United States and United Parcel None-lowering environmental standards Service of America Inc. v. Government of Canada Non-lowering measures are purposed to avoid the tribunal granted amicus standing to NGOs lowering environmental standards of the host and public interested groups to submit written state to attract investors. This provision came as submissions. a response to the ‘pollution heaven hypothesis’ In Addition to this, Brazil- Guyana BIT and the whereby, the host state purposes to attract US Model BIT have excluded the application of investors by lowering environmental or labour environmental concerns from the dispute standards(Footer,2009) Most of the recent BITs settlement mechanism. Further, Article 12.5 of include none lowering environmental standards the US Model BIT has introduced exhaustion of with the phrase that ‘it is inappropriate to local remedies as a precondition to ISDS and it encourage the investment by relaxing..’. The provides a forum for both the parties to have a scope of the clause may be varied with a treaty compromise. Further, US-Rwanda BIT,

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Argentina-Arab BIT, and India Model BIT have legitimized the right to regulate the allowed consultation of experts on environment of the host state. environment-related matters without prejudice CONCLUSION to the arbitration procedure with the approval of other disputing parties. More importantly, One of the vibrant features in the second India’s Model BIT provides direction for the generation BIT is the inclusion of environment- tribunal to consider the damage caused to the related language for the protection of the environment by the investor as a factor to environment within the BIT. Accordingly, the mitigate the compensation when monetary conflicting nature of environmental regulation damages are awarded. and investment promotion can be minimized by explicit reference to the environment. Since the General promotion of progress in investment treaty is the primary source in an environmental protection and cooperation investment dispute, if the treaty provisions are Furthermore, some BITs contain clauses that precisely drafted concerning the rights of both promote the furtherance and corporation of the host state and investors, the tribunal will be environmental objectives calling states to able to strike an appropriate balance between strengthen environmental standards. This the two. However, whether both parties have a expression is important when the treaty is similar bargaining power to finalize a BIT interpreted according to the holistic approach depends upon the circumstances. by the tribunal. Linking environmental concerns explicitly with In addition to these seven ways, the recent BITs the expropriation clause and general exception have identified the voluntary responsibility of clause would generate more latitude for host the parties to internalize the standards of states to legitimize their state measures without corporate social responsibility and OECD violating the treaty provision. Reference to the Guidelines for Multinational Enterprises. It is environment in the preamble is significant evident in Article 17 of Argentina- Brazil BIT, when the purpose and object of the treaty are Article 12 of India Model BIT, Article 17 of questioned. However, the preamble alone Japan-Argentina BIT, Article 10of Serbia Model would not be able to regulate the BIT. The Brazil-Guyana BIT is progressive in environmental concerns of the host state. this regard as matters relating to corporate Similarly, the clause relating to the general social responsibility have been excluded from promotion of progress in environmental arbitration. More importantly, the Morocco- protection and cooperation alone does not Nigeria BIT has provided standardization for provide sufficient policy space for the host state the companies in areas of resource exploitation to legitimize its state measures on and high-risk industrial enterprises that they environmental protection. Moreover, none- should maintain their certification to ISO 14001 lowering environmental standards prevent or an equivalent environmental management degrading the environmental quality of the host standard. If the investors are not obliged to state by its state measures and also by the prescribe standards, the host state can take investors. The effect of this provision is less action against the investors. This further obliges influential than the exception clause. Multiple parties to comply with the international references can be made in a BIT to properly environmental obligations that the host states balance environmental protection with or home states are parties. Furthermore, unlike investment promotion. The US Model BIT and other BITs, conducting environmental impact Morocco-Nigeria BIT of 2016 are more assessment prior to the establishment of the progressive in this regard as they contain investment has also been recognized under this environment impact assessment and BIT. Consequently, the text of the BIT has environmental management standards in BITs

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law extending the common ways of including Compañia del Desarrollo de Santa Elena S.A. v. environment-related language. However, such Republic of Costa Rica, (2000) ICSID Case No. expression would not unilaterally enable the ARB/96/1 state to legitimize their arbitral or political Cooperation and Investment Facilitation decision. The state bears the burden of proof of Agreement between the Federative Republic of these clauses and hence, investors’ rights will Brazil and the Co-operative Republic of Guyana not be jeopardized. of 2018 References Footer, M. (2009). (n.d.). Bits and Pieces: Social Agreement Between the Argentine Republic and Environmental Protection in the Regulation and Japan for the Promotion and Protection of of Foreign Investment. Michigan State Journal of Investment of 2018 International Law, 18. Agreement Between Canada and Mongolia for Gordon, K., & Pohl, J. (2011). Environmental the Promotion and Protection of Investments of Concerns in International Investment 2016 Agreements;Asurvey, OECD Working Paper. OECD Publishing. Agreement Between the Government of Canada and the Government of the Republic of Moldova Koskenniemi, M. (2006). (n.d.). Fragmentation for the Promotion and Protection of of International Law : Difficulties Arising From Investments of 2011 the Diversification and Expansion of International Law (UN Doc A/CN.4/L.682). The Agreement Between the Republic of Rwanda United Nation's Organization. and the United Arab Emirates on the Promotion and Reciprocal Protection of Investments of Metalclad Corp. v. United Mexican States, ICSID 2017 Case No. ARB(AF)/97/1, Award(Aug. 30, 2000) Agreement for the Reciprocal Promotion and Methanex Corporation v United States of Protection of Investments Between the America, (2005)44 ILM 1345,Part iv- chapter D Argentine Republic and the United Arab Model Text for Indian Bilateral Investment Emirates of 2018 Agreement 2016 Beharry, C. L., & Kuritzky, M. E. (2015). ‘Going Reciprocal Investment Promotion and Green: Managing the Environment Through Protection Agreement between the Government International Investment Arbitration. American of the Kingdom of Morocco and the Government University International Law, 30. of the Federal Republic of Nigeria 2016 Biwater Gauff (Tanzania) Ltd. v. United Harten.G,Public statement on the international Republic of Tanzania, ICSID Case No. investment regime - 31 August 2010 - Osgoode ARB/05/22 hall law school. (2014, November 24). Osgoode Canada Model Bilateral Investment Treaty for Hall Law School. the Promotion and Protection of Investments https://www.osgoode.yorku.ca/public- 2004 statement-international-investment-regime-31- august-2010 Chaudry, B. (2008). Recapturing Public Power : Is Investment Arbitration’s Engagement of the Sands,P (2012) Principles of International Public Interest Contributing to the Democratic Environmental Law, Cambridge University Deficit. Vanderbilt Journal of Transnational press Law, 41. Ranjan, P. (2012). Non-precluded measures in Indian international investment agreements and India's regulatory power as a host nation.

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Asian Journal of International Law, 2(1), 21-58. United Nations Trety Series(1969, May 23) https://doi.org/10.1017/s2044251311000129 Vienna Convention on the Law of Treaties Ranjan,P. (2014). Using the Public Law Concept United Parcel Service of America Inc. v. of Proportionality to Balance Investment Government of Canada, ICSID Case No. Protection with Regulation in International UNCT/02/1 Investment Law: A Critical Viñuales, J. E. (2012). Foreign investment and Reappraisal.Cambridge Journal of International the environment in international law. and Comparative Law,3(3) Cambridge University Press. Salacuse, J. W. (2015). undefined. Oxford World investment report: 2015. (2015). United University Press, USA. Nations (Un). Serbia’s Model BIT of 2014 Author Biography Spears, S. A. (2010). The Quest for Policy Space in a New Generation of International

Tecnicas Medioambientales Tecmed S.A. v. United Mexican States, ICSID Case No. ARB(AF)/00/2 The Treaty Between the Government of the The Author is a lectuer in Law, Department of United States of America and the Government of Legal Studies of the Open University of Sri the People's Republic of the Congo Concerning Lanka. Her reseach interest include the Reciprocal Encouragement and Protection International Investment Law, Commercial of Investment of 2014 Arbitration and Public International Law. She Romson, A. (2012). Environmental Policy Space holds LL.M in International Law (South Asian and International Investment Law (1st ed.). University, New Delhi) and LL.B from Faculty of Stockholm University Press. Law, University of Colombo. U.S. Model Bilateral Investment Treaty 2012

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Paper ID: 463 The Failure of Guardians: Mount Lavinia Artificial Beach and Public Trust Doctrine

SPCT Abeysiriwardena, VR Algewatta and ALU Gamage#Faculty of Law, General Sir John Kotelawala Defence University

#[email protected]

Abstract - Sri Lanka has been identified as one used to identify and clarify the status of the of the most visited tourist destinations due to project. environmental and the archaeological Keywords – Environmental Impact background. The projects that have been Assessment, Public Guardianship, Pubic carrying out by the government for the purpose Trust Doctrine of restoring the environment should entertain the process which is prescribed by the legal I. INTRODUCTION system of the country. The applicable legal As per the constitution, it is a fundamental duty authorities for the Mount Lavinia artificial of every citizen to protect nature and conserve beach project are the Coast Conservation Act No its riches. Even though safeguarding natural 57 of 1981, the National Environmental Act, and resources is declared as a fundamental duty the constitution which has laid down the under the constitution of Sri Lanka, at the same process applicable to the projects which may time it can be considered as a responsibility of adversely affect the environment. Carrying out the consumers of natural resources and human EIA(Environmental Impact Assessment) is the beings as a part of nature. Sri Lanka As an yardstick to estimate the environmental impact island, it is important to pay considerable which will result from the project. The power of attention to the coastal conservation when exercising the EIA is with the director-general launching projects which can adversely affect of the coast conservation. The sovereignty of the coastal environment. the people is exercised by the executive, Recently Sri Lanka has been started several judiciary, and the legislature. Fails to carry out a artificial beach development projects in west prescribed process by the authorities violate coastal areas such as Calido, Agulana, and the sovereignty of people thus results in the Mount Lavinia in order to control the coastal violation of public trust. As per the possible erosion of respective areas. This research is remedies filling a fundamental rights violation, mainly focused on the legal aspect which writ application, or can apply for an injunction. governs the artificial beach project in Mount This research will examine the relationship Lavinia, the practical issues of the project, and between the environmental impact assessment possible remedies to curb the current and and the public trust doctrine relating to the future violations in this area of study. The law Mount Lavinia artificial beach project and how requires carrying out an environmental impact the project has violated the public trust by not assessment prior to the conduct of development conducting an EIA thus violating the sovereign projects in environmentally sensitive areas. The power of people. The research is carried out to decision-making power of coastal related identify the existing legal framework of the matters lies with the authorities of central study area, to understand the practical issues in environmental and coastal conservation. In the developing the project, and to provide abuse of these designated powers results in recommendations as remedies to curb such violation of the public trust doctrine impliedly violations. The black letter approach has been protected by the constitution of Sri Lanka.

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II. RESEARCH PROBLEM resources required by the proposed development activity. Do the responsible authorities have acted within their capacity to protect the Analysis environmental rights in developing Mount The project of the creation of an artificial beach Lavinia artificial beach? in Mount Lavinia can be taken as an III. METHODOLOGY amalgamation of two components. The main component is the creation of the artificial beach The research is based on a qualitative study. in Mount Lavinia and the dependent component This Research paper complies with the mixed is the sand integration from the Ratmalana area research method. Primary and secondary with the purpose of creating the artificial beach. sources are used as a black-letter approach to identify and clarify loopholes and issues of the Sand filling project study area and as empirical approach expert The main project is governed under the information has been gathered by a senior Department of Coast Conservation and Coastal environmentalist was used in order to examine Resources Management (DCC&CRM) since it is a and understand the current status of the development activity carried out on the coastal project. All the existing literature including area which results in the project proponents to legislations, judicial decisions, juristic writing, adhere to the Coast Conservation Act No 57 of and other writing has been used as secondary 1981 and National Environmental Act No 47 of data. 1980. According to Section 42 of the Coast IV. DISCUSSION AND ANALYSIS Conservation Act(CCA) the term “development activity” has been interpreted as any activity Environmental Impact Assessment likely to alter the physical nature of the coastal EIA is a process of assessing the socio- zone in any way including the construction of environmental effects of a proposed buildings and works the, the deposit of wastes development project which likely to alter the or other material from outfalls, vessels, or by physical nature of the environment. The main other means, the removal of sand, coral, shells, object of conducting an EIA is to examine, natural vegetation, seagrass or other analyze, and assessment of positive and substances, dredging and filling, land negative impact of the planned activity. reclamation and mining or drilling for minerals, Environmental impact assessment is used to but does not include fishing. make decisions more transparent and to Further, the Act has laid down certain ground mitigate the negative impact of the relevant rules to protect the coastal area of the country development project and enhance the potential and has prescribed a permit procedure to be positive impact. attended before conducting a development The act has interpreted the EIA as a written activity within the coastal area. CCA Section analysis of the prediction of environmental 14(1) submits that any person cannot engage in consequence of a proposed development a development activity other than the activities activity under the Interpretation Section 42 of prescribed within the coastal area except under the Coast Conservation Act (CCA). This section the authority of a permit issued on behalf of the states that a development activity including the director. Further in favor of the sustainable avoidable and unavoidable adverse development Section 14(2) of the Act has environmental effects, alternatives which can authorized the minister to prescribe certain less harmful to the coastal zone along with the categories of development concerning the long reasons to reject such alternatives and term stability, productivity, and environmental irreversible or irretrievable commitments of

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law quality of the coastal zone which is allowed the Act seems to have given high discretionary without a permit issued under subsection (1). power to the Director-General (Ranasinghe and Gunawardena, 2020) After such authorization Section 16(1) of the said Act acquiesces that upon the application In the process of the EIA main actors are the for a permit to conduct a development activity project proponent and the Project Approving within the coastal zone the director shall Agency (PAA). The PAA is the administrative require the applicant to furnish an authority that guides the project proponent in environmental impact assessment (EIA) the EIA process and to obtain the approval. concerning the said activity and the duty to The fact that coast conservation being the both comply for the requirement is within the project proponent and the project approving applicant. The EIA process firstly mandated for agency violates the natural justice principle the large scale development projects and “nemo judex in causa sua” (no one is judge of environmental sensitive areas by the Gazette his own case). The project proponent and the no. 772/22 of 1933. It also prescribes the type deciding authority cannot be the same person of projects which require to conduct an EIA. whether such project is environmental adverse Further elaborates if there are less adverse or not. It violates the main rationale of environmental impacts initial environmental implementing such a procedure which is examination (IEE) can be prescribed instead of an EIA. to determine the environmental impact. In the process of obtaining the permit from the The creation of an artificial beach undoubtedly Director-General of the DCC&CRM for a project alters the physical nature of the coastal zone. conducting within the coastal zone the Director- Thus, according to the CCA, it mandates a General of the coast conservation should permit in order to carry out this project. require the applicant to furnish an EIA relating However, even though the objective of this to the said project. The purpose of conducting project is to protect the environment or the an EIA is to figure out the environmental impact project provides nourishment as a soft solution which will result due to the process of the to the beach, it does not justify the fact that the project. project does not require an EIA. It exists within the discretion of the Director-General to In the process of implementing a soft solution demand an EIA for the development activities. such as creating an artificial beach, the The EIA report is the authentic document to engineers and the related authority should determine whether the project will result consider where all sand will be collecting due to beneficially or detrimental to the environment. the waves of the beach. However, it has The effect on the environment due to a predicted that the area was “Wallawatta” but it proposed project cannot be predicted before is doubtful. It proves the fact that the project the process of EIA. Thus, the lack of furnishing was conducted without proper expert the requirement of the EIA report evidently knowledge. results in abuse of discretionary power which is Further, it can be identified that the project has given to the Director-General of the DCC&CRM. not been conducted in to a proper time scale Noncompliance with such given power amounts and as a result of that sand has been caused to to abuse of power. erosion due to the high tide in May to The Director-General has an absolute power to September. According to the DCC&CRM they prescribe projects which shall not require an have suggested a soft solution in order to EIA report, whether the EIA or the IEE should prevent coastal erosion. But this had affected be conducted and authorize a project to be adversely resulting in the great portion of filled conducted after furnishing the EIA or IEE. Thus, sand had gone away back to the ocean. Thus,

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law resulted in a complete change of the inborn National Environmental Act No.47 of environmental beauty of the beach. The long 1980(NEA). According to Section 23AA of the identified tourism destination has been National Environmental (Amendment) Act changed and the fisheries industry has caused a N0.56 of 1988, it has provided that all the detrimental effect due to this creation of prescribed projects that are decided to carry artificial beach. The result after the out is required to obtain the approval from an nourishment project is not better what appropriate Project Approving Agency (PAA). appeared prior to the nourishment identified as That duty of PAA as mentioned by Section 23BB the No action alternative principle. of the amended Act is to require the authorities to provide an Initial Environmental The sand mining project Examination (IEE) or an Environmental Impact The depending component of the Mount Lavinia Assessment (EIA) including all the particulars Beach nourishment project is the subordinate required by the Minister. activity which was conducted to procure the However, the commentators enunciate that required sand for the project. According to the responsible authorities for the sand mining report of the sand nourishing projects made by project which correlate with the main project of the DCC&CRM, it necessitates 150,000 cubic Mount Lavinia beach nourishment has not meters of sand for the project and it has been conducted a required EIA or IEE under the NEA extracted from the sea in Ratmalana. This area which could be deemed as an absolute violation at the sea in Ratmalana was 2 KM ahead from of the law. the coastal area and is famous for a vast amount of biodiversity which was created by a coral Public trust doctrine reef lagoon with four reef sites (Lack of As it was consolidated by the above-mentioned Environmental and Social Considerations in Mt. facts the Mount Lavinia beach nourishing Lavinia Beach Development Project – Ejustice, project is a total violation of the Coast 2020). Further, this area is most important for Conservation Act and the National the fishermen to engage in their fishing Environmental Act can be verified as a total activities as this place provides a sufficient fish abuse of powers by the authorities. According catch for the fishermen. However, due to the to Article 3 of the 1978 constitution, the sand dredging which was carried out between sovereignty is in the people and it is inalienable. the areas of Palagala and Degalmada reefs into The governmental authorities are the depth of 15−20 feet, it can be predicted that representatives who are appointed by the the reef lagoon will be filled by the sand up to people as trustees for a prescribed period of the 1st reef which runs parallel to the coastal time to hold the powers on behalf of the general area from Mount Lavinia to Colombo (Lack of public and as their representatives in the Environmental and Social Considerations in Mt. parliament. However, if these governmental Lavinia Beach Development Project – Ejustice, authorities use their powers ultra virus it 2020). As a result of this, the reef will be involves the violation of the Constitution and destroyed and the biodiversity surrounding the the rule of law. The doctrine of Public Trust was reef lagoon will be disappeared. introduced as a remedying process for the As this sand mining project adjacent to a reef people in a contravention of their power. lagoon, this can be considered as a highly However, the Constitution of Sri Lanka has not environmentally sensitive project, and also the expressly recognized the Public Trust Doctrine dredging activities were carried from 2Km from (PTD) and courts generally refer to the Articles the coastal area (outside of the coastal zone). of 3,4 and 12(1) of the constitution in applying Thus, the project should be conducted PTD regarding the situations where the regarding the laws that are provided by the governmental authorities breach the trust of

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law the general public. Basically, the Supreme Court by adhering to the PTD state should pay its in Sri Lanka apply the PTD other than the abuse attention to the sustainable development of discretionary public power, upon an demands through protecting, managing, and exploitation of the natural and national regenerating those resources. resources for private benefit and in a violation Violation of the Public Trust Doctrine of the sovereignty of the people (Samararatne, 2010) Sovereignty of the people shall be exercised through the legislature, executive, and the Focusing on the limb of exploitation of the judiciary and all the said actors should act on natural resources Bulankulama and six others v. behalf of the people for their benefit. The Mount Ministry of Industrial Development and seven Lavinia beach is a natural resource that belongs others [2000] (Eppawala case) case to every citizen as a whole. Authorities cannot Amarasinghe J elaborates the exact scope of the conduct any act which will adversely affect the PTD in the by explaining its said common natural resource. If the connection between the Article 3 of the authoritative actors are violating the law that Constitution. It affirms that as the sovereignty is will result in the violation of the public trust. in the people and it is inalienable, holders of the governmental powers who are considered as In the Eppawala case through the Guide for the trustees by the general public, should Implementing the EIA Process, No. 1 of 1998 exercise their powers solely upon the interest (P20), issued by the Central Environmental of the people. Further Amarasinghe J explains Authority has mentioned the purposes of governmental authorities should act as environmental impact assessment (EIA) are “to guardians and protect the natural resources by ensure that developmental options under relying on the approach adopted by consideration are environmentally sound and Weeramantry J in the case of Hungary V sustainable and that environmental Slovakia, [1997] which provides that natural consequences are recognized and taken into resources are needed to be used by the account early in project design. EIAs are authorities in trust of the public. intended to foster sound decision making, not to generate paperwork. The EIA process should Further, the use of PTD for protection on also help public officials make decisions that are natural resources which was identified in the based on understanding environmental Eppawla case was also adopted in Watte Gedara consequences and take actions that protect, Wijebanda V Conservator General of Forests and restore, and enhance the environment”. Others, [2009]. Through this case, Shiranee Tilakawardena J. has clarified the connection Case further states that “if they were to comply between PTD, sustainable development, and with the law they would have conducted an intergenerational equity in taking decisions EIA” explains that lack of an EIA report and the relating to natural resources. Moreover, the proposed agreement seeks to circumvent the government has an obligation to protect and law and its implementation is biased in favor of conserve the riches of the natural resources the Company as against the members of the which are for the purpose of the public use from public. exploitation. As a part of this obligation, the As per the National Environment Act, the government should make policies with a long governmental authorities should require to term view relating to the useful utilization of conduct EIA prior to the carrying out of the the natural resources by protecting the mass development projects. However, there are interests of the general public and the a number of development projects that were intergenerational use of those resources. conducted by the governmental authorities in Further, it also mentioned in the said case that Sri Lanka without satisfying the required

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law qualification of EIA, and the affected parties by to compel the party to refrain from carrying out the environmental impacts through these the specific project. projects have been filled cases in the respective The Centre for Environmental Justice (CEJ) has courts. Among them, the Centre for filed a court case against the entire Mount Environmental Justice & Ports Authority & 07 Lavinia Artificial Beach project holding the Others., [2017] (Colombo Port City Case) and number of PCA/WRT/128/2020 in Court of Center for Environmental Justice and 3 others V Appeal against the Coast Conservation Secretary, Ministry of Mahaweli Development Department (DCC&CRM), Central and Environment and 3 others, [2016] (Uma Oya Environmental Authority (CEA), Minister of project case) can be named as two main case Environment, Marine Environment Protection which took the advertence of the public. In the Authority (MEPA) and Attorney General based Uma Oya project case, the main consideration on sand pollution and failed sand filling in was the absence of a standard EIA before the Mount Lavinia without following the due carryout of the project which amounts to a procedure. And also under this petition, CEJ complete violation of the National seeks to grant a Writ of Mandamus based on Environmental Act. Thus, it can be identified as eight points under the environmental an abuse of powers by the authorities and as a degradation caused by carrying out this project result of that, the project causes several adverse (Press Release—CEJ Filed Legal Action on Mt. impacts to the environment and the residents of Lavinia Sand the areas of Badulla and Bandarawela. Filling and Beach Pollution CA/WRT/128/2020 The port city development project was also – Ejustice,2020). Moreover, the state is needed conducted without a proper EIA and the to be act upon the public benefit according to governmental authorities who are responsible the role of trusteeship. Nevertheless, when the for the project have given the approval government exploits the natural resources irrespective of the adverse impacts to the 575 through these so-called development activities acres of the coastal area opposite to the port it is clear that the public authorities neglect city. Thus, the natural resources of the country their obligation to act upon the benefit of the which belong to the general public have been public. Thus, the abandonment of the public exploited by the arbitrary use of the powers by benefit can be used as a criterion to measure the governmental authorities. that the governmental authorities have violated The Mount Lavinia sand mining project also a the public trust. definite violation of law as in the above- V. CONCLUSION mentioned projects which were conducted without holding a proper EIA. In the meaning of Sri Lanka is an island surrounded by the Indian the principle of trusteeship over natural and Ocean and it owns the world most attractive national resources state should be trustee over tourist destinations. Mount Lavinia is one of the natural resources on behalf of the people. If highly attracted coastal area which has a scenic the authorities are violating the law and abuse beauty and natural benthos. An artificial beach the powers of the people it involuntarily project in Mount Lavinia is carried out by the violates the principle of trusteeship Central Environmental authority to prevent the (Samararatne, 2010). The existing remedies for coastal erosion of Mount Lavinia beach. Due to the Violation of Public Trust Doctrine and the risk of environmental degradation enact the Fundamental rights of the people are filing a Coast Conservation Act and the National Fundamental Right case or Writ Case. The other Environmental Act to protect and foster the available remedy is to bring an injunction order coastal nature. Acts recommend Environmental impact assessment should be carried out prior to the projects of large scale and environmental

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law sensitivity area based projects. Sand pumping is Center for environment justice. 2020. PRESS RELEASE— the available soft solution for coastal erosion CEJ filed Legal action on Mt Lavinia sand filling and beach pollution CA/WRT/128/2020. [Online. Available with minimum environmental harm. Authority at:[Accessed 28 August 2020] coastal area. Even though the project is carried Center for Environmental Justice and 3 others V Secretary, out for environmental protection the authority Ministry of Mahaweli Development and Environment and 3 must be carried out proper EIA to examine and others [2016] 273/15 (SC(FR). analyze the positive and negative impacts of the Centre for Environmental Justice & Ports Authority & 07 project. Most of the large scale projects carried Others. [2017] 112/15 (CA). out in environmental sensitivity areas in Sri Ejustice.lk. 2020. Lack Of Environmental And Social Lanka did not carry out proper Environmental Considerations In Mt. Lavinia Beach Development Project – Impact Assessments and later on arises Ejustice. [online] Available at: [Accessed 3 July 2020]. party for the environmental-related projects Hungary V Slovakia [1997] GL 92 (ICJ). carried out within Sri Lanka because it is their duty to act according to the prescribed Ranasinghe, P. and Gunawardena, M., 2020. Importance Of Environmental Impact Assessments And The Turmoil In Our procedures and laws. Failure to perform their Coasts | Daily FT. [online] Ft.lk. Available at: duty arise the responsibilities. Under the [Accessed 3 July 2020]. parliament via the authorities. The sovereign Samararatne, D., 2010. Public Trust Doctrine: The Sri power of the people is transferred to the Lankan Version. [ebook] Available at: [Accessed act in a wrongful manner will automatically 3 July 2020]. breach the public trust. Protection of natural Watte Gedara Wijebanda V Conservator General of Forests resources in its riches are not only a and Others [2009] SLLR 3 (SC), p.337. responsibility of authorities but also citizen. But ACKNOWLEDGMENT the decision making, managing powers are entrusted with the authority. Mount Lavinia We wish to express our grateful thanks to Mr. artificial beach project highlighted the despotic Jagath Gunawardena, a veteran Lawyer and an decisiveness of the authorities and failure to Environmenralist for dedicating his valuable carried out proper EIA is a breach of the trust of time and sharing his ideas on the research topic citizens or the violation of the public trust and also for the endless encouragement to doctrine. The main fact this research proposed make this research fruitful. is that the Central Environmental Authority and Also, debt of gratitude is granted to Ms. Asanka coast conservation authority should highly Edirisinghe, Lecturer, Kotelawala Defense consider the fact that conducting a proper EIA University for the immense support and prior to a project and try to enhance the guidance that gave throughtout the effort that positive impacts while mitigating the negative made to complete the research. impacts unless the authorities violate the trust of the people and constitute the violation of Author Biographies Public Trust Doctrine. Ms. Chamthka Abeysiriwardhana is currently I. References following final year studies for her Bachelors of Laws( LLB Degree Programme) in General Sir Bulankulama and six others v. Ministry of Industrial Development and seven others [2000] SriLR 3 (SC), p.243. John Kotelawala Defence University. Interested

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law future research areas are criminal law, Ms. Ayeshcharya Gamage is currently following environmental law and Intellectual property final year studies for her Bachelors of Laws( law. LLB Degree Programme) in General Sir John Kotelawala Defence University. Interested Ms.Vishmi Algewatta is currently following final future research areas are Criminal law and year studies for her Bachelors of Laws( LLB Human rights law. Degree Programme) in General Sir John Kotelawala Defence University. Interested future research areas are Intellectual property law and family law.

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

Paper ID: 416 How the Offence of Rape has been Overshadowed by Marriage and its Impact on National Growth of Sri Lanka: A Critical Analysis from Legal and Economic Perspectives

SBYM Duneesha Siwrathne

Faculty of Law, General Sir John Kotelawala Defence University

[email protected]

Abstract - Marital rape is no rape in Sri Lanka social costs. With due respect to legal and under Section 363(e) of the Penal Code. Apart economic perspectives, the author attempts to from the slightest enlightenment furnished by draw the diligence of the judiciary and the legal the Prevention of Domestic Violence Act No. 34 authorities to recognize a rapist as a rapist of 2005, there are no significant legal provisions irrespective of the bond which they share with within the Sri Lankan legal framework with the victim. reference to marital rape. The main objective of Keywords - Marital rape, Criminalization, this paper is to highlight the necessity of National Growth, Social cost criminalizing marital rape in Sri Lanka rather than limiting it to a judicial separating INTRODUCTION mechanism followed by a judge’s verdict which Rape is viewed not merely as a heinous crime is prevailing at present. Apart from the legal against women but also a felony which often perspective, the paper attempts to propose a impacts the victims' psyche as well. The crime is better way in achieving this criminal reform expressly forbidden in pursuant to section 363 through the address of marital rape from an of the Penal Code 1883 (No.2, 1883). economic viewpoint by emphasizing on how However the exact identical crime is held lawful the externalities arising from the offense affects by S.363(e) if perpetrated against his own wife. the national growth of Sri Lanka. In achieving There have been several customary ideas this purpose, the doctrinal research concerning the development of this clause methodology was employed and such within the legal history, including Blackstone's qualitative and quantitative data which were Spousal Unity Theory, which argued that collected by books, journal articles, and reports husband and wife are deemed to be a single demonstrated the inadequacy of Sri Lankan body after marriage of which the husband legislative provisions on marital rape compared retains shared control and the privacy theory to foreign nations. International comparison which claims that the conviction of husbands research methodology was used for analytical for spousal rape neglects the dignity and purposes where UN treaties, case laws and privacy in marriage. However it must be legislations from USA and UK were cited. noted that all these concepts are antiquated Information acquired through said sources and the laws relying on these philosophies need provided that the marital rape victims in Sri to be reassessed. Lanka are addressed by judiciary solely on the Since rape against married women is no rape in grounds of domestic violence which had no Sri Lanka, a Sri Lankan woman who is being reference to marital rape which was ought to be victimized by marital rape would rarely speak the justifiable defence in a legal proceeding. As out against her husband without an existing a result there would be a downgrade in national legislation to protect her, particularly in a growth with the augmentation of private and

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law culture like Sri Lanka that is filled with a CURRENT SOCIAL BACKGROUND ON MARITAL number of patriarchal lenses. RAPE AND ECONOMY OF SRI LANKA The prevailing modern justification for Sri Lanka which is located in South Asia is decriminalizing marital rape is based on the comprised of a variety of cultural beliefs. Thus notions of irrevocable marriage consent, these cultural beliefs inevitably stand as difficulty in proof and the likelihood of misuse. barriers in achieving the rule of law. As a result, But it is to be considered that this vulnerable the legal framework of Sri Lanka is brimmed group who face both physical and mental with a bunch of loopholes. Sexual harassment trauma is more likely to cause a negative impact and marital rape falls under this category where on the society which ultimately damages the cultural beliefs are in favour of the men. national growth of the country. It is therefore of Consequently the data acquired by surveys national importance that this group of women (Fig.1) assess an elevation of rape incidents be permitted to access justice by giving where most of the victims are not know. solutions to override the said concepts. RESEARCH METHODOLOGY Methodology The paper employed doctrinal research methodology to acquire secondary quantitative data and both primary and secondary qualitative data. Comparative research methodology was employed to gather secondary qualitative data and case laws from USA and UK jurisdictions were mainly utilized for analytical purposes. USA was chosen by the author to manifest the significance of economic Fig.1 – Percentage of men reporting and legal position of USA by pointing out that perpetration of rape against female partners even the country which holds the nominal rank and non-partners, by type and site (Fulu et al., no.1 in year 2019 on its Gross Domestic Product 2013, p.31) has criminalized marital rape. On the other hand UK law was cited to point out that UK law A bulk of rape cases in Sri Lanka are detected in from which Sri Lanka received many of the remote regions where females are uneducated, traditional justifications for not criminalizing unemployed, and poverty-stricken. Girls under marital rape has now developed its legal these circumstances enter into marriage jurisprudence to a position where marital rape arrangements as soon as they hit their is no longer an exemption to rape. puberty and are not conscious of the society at all. They spend the remainder of their lives Methods under the control of their spouses and they get Qualitative primary data were collected by UN harassed if they unconsent for sexual treaties, the Constitution, Penal Code No.2 of intercourse and such harassments are 1883, Domestic Violence Act No.35 of 2005 of encountered as marital rape. However in the Sri Lanka, Sexual Offenses Act 2003 of United context of Sri Lanka ‘sex’ on its own being a Kingdom and case laws of Sri Lanka, USA, and taboo matter of subject, rape enclosed in a UK. Qualitative secondary data were collected marital relationship is deemed to be an by books and journal articles while quantitative extremely privacy related topic. As a result, all secondary data were collected by pre done the abused women usually duck out from surveys and reports. getting exposed to legal and social

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law environments. There are a variety of causes A. Case Laws which discourage those women from The importance of discussing the legal issue confronting this issue including anxiety, came into consideration along with the embarrassment, family rejection, fear of losing declaration by Lane CJ in the case R v R in which kids, hostile attitudes and potential abuse by he said that it is the right time for the law to the police. consider a rapist as a rapist irrespective of the The consequences in a court room is no relationship he shares with the victim [R v R different. The emotional anguish which a rape (1991) UKHL 12]. Moreover it is important to survivor undergoes through repeated cross- understand that marital rape cannot act as an examination proceedings at courts is exception to equality and justice. In People v unbelievable. A woman compelled to provide Liberta (1984) it was held that married women details on how her husband raped her would be hold the right over their bodies same as of subjected to various discomforts by lawyers at unmarried women. the trial. Therefore, considering the current Marital rape is an illegal offence in all states of state of affairs, the women choose not to voice the USA, which is considered as the most themselves against marital rape. powerful country in the world. Amendments on On the other hand as long as the economy of Sri criminalizing marital rape in the United States Lanka is concerned, over the past three years, were enforced in mid-1970s. The first case in the growth rates of Sri Lanka have begun to the United States that challenged marital rape decline. The rate was 3.4% in 2017, reportedly was Oregon v. Rideout in 1978 (Jackson, 2015). the biggest downfall in 16 years and a Husband was offended for assaulting his own dropdown of 3.2% was reported in 2018 wife whereas they were living together. Since (Central Bank of Sri Lanka, 2019, p.4). It is clear the state changed its law in 1977 to rule out that the economy of the country is rather marital rape immunity, the husband was decelerating than accelerating and thus the discharged completely of raping his wife. legislative branch of the country should However as a result of the increasing number of perform their fair share in order to abet the marital rape in the USA, the government in economy. 1993 amended the marital rape as a crime in all 50 states. Along with the acknowledgement of How the criminalizing of marital rape could marital rape as a crime by many developed assist the upliftment of the country’s overall states, the significance of criminalizing marital national growth will be discussed by this paper rape in Sri Lanka has arisen. under the economic viewpoint. Manohari Pelaketiya v. Ministry of Education I. LEGAL VIEWPOINT ON MARITAL (2016) case held that, continuous threat and RAPE abuse against women could compel them In contrast of the traditional theories on towards both psychological and physical marriage which showcase the features of traumas. Although the judgments of Sri Lankan domination, the modern theory of law have well recognized that the substantive companionship indicates that the exercise of enforcement of the human rights of women is equality throughout the marriage contributes important, this aim would not be accomplished for a better marital satisfaction (Wilcox & Nock, with no existing penal laws to criminalize all 2006). Many recent landmark judgements all types of rape against women regardless of the over the world have got influenced by this relationship shared with the offender. modern theory and as a result many laws have B. International Law been implemented both nationally and internationally.

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When it comes to treaty law, A.16(1) of UDHR as ‘marital rape’ and as a result the issues are provides that, “men and women are entitled to attempted to be settled through counselling. equal rights as to marriage and during the There are constitutional guarantees established marriage” (Universal Declaration of Human by the Sri Lankan Constitution under the notion Rights, 1948) and it is been replicated by of equality under which the concept of marital A.24(3) of ICCPR (International Covenant of law could be discussed. Accordingly A.11 Civil and Political Rights, 1966). A.1 of CEDAW provides for the fundamental right of freedom states that "discrimination against women shall from torture (Constitution of Sri Lanka 1978, mean any exclusion made on the basis of sex s.11), A.12(1) protects all human beings before ……., irrespective of their marital status” the law and are considered equal (Constitution (Convention on the Elimination of All Forms of of Sri Lanka 1978, s.12) and A.27(1)(a) Discrimination against Women, 1979) while A.2 guarantees to accomplish full comprehension of provides that state parties should disapprove fundamental rights. all forms of discrimination against women by taking appropriate policy measure without any Regardless of the existing constitutional delay. A.16(1)(c) of CEDAW promotes equality guarantees, there is a resistance of the of rights throughout the marriage. legislators to criminalize marital rape as a penal crime, under all cases and it was demonstrated CEDAW in its concluding observation on the 8th by the Report of the Leader of the Opposition periodic report to Sri Lanka (2017) provided a Commission on the Prevention of Violence recommendation to criminalize marital rape in against Women and Girl Child, 2014 which the absence of consent. As a result, discussions stated that when Sri Lanka tabled the Penal were brought up to criminalize marital rape in Code Amendment in 1995, marital rape was 2017 by then Minister of Justice and Foreign mentioned by excluding the caveat on judicial Employment, Mrs. Talatha Atukorale. But separation, yet as a result of the Parliament's unfortunately no concrete steps were strong disapproval the clause turned out getting implemented and the justice got diminished by disregarded. (Commission on the Prevention of getting limited to a mere discussion. Violence against Women and the Girl, 2014, However as a member of CEDAW, Sri Lanka has p.32). indicated its mutual intention to cooperate with D. Understanding the Reality the Convention and, as such, ratification should be viewed as an obligation to meet the duties of In opposition to what the majority tend to the State to take effective steps that are believe, existing law in Sri Lanka which consistent with the duties of the Treaty. safeguard husbands who rape their spouses is not a portion of Sri Lankan culture. In fact it was Moreover United Nations’ Sustainable imported from British law at the time when Sri Development Goal 05 ensures to accomplish Lanka was a colony of Great Britain. A former gender equality by 2050 (since it is unable to be British Chief Justice, Sir Matthew Hale in 1736 accomplished by 2030). by publishing a treatise namely, History of the C. Domestic Law Pleas of the Crown, stated, the spouse of a wife cannot himself be blameworthy of an actual Currently marital rape is not a crime in Sri rape upon his wife, on consequences of the Lanka. Under the common law it is illegal only marital assent which she has given, and which when the judiciary declares a legal separation. she cannot withdraw (Hasday, 2000). The The Prevention of Domestic Violence Act No. 34 British colonies received independence a few of 2005 furnishes a slight enlightenment in years later but yet continued to cherish this protecting women who get abused by the slightest bit of male privilege within their own husbands. But these cases do not get recognized legal statues for centuries.

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Unfortunately Sri Lanka being a country among There is no permission granted by law in order them is still faithfully sustaining this colonial to permit another to cause a bodily injury to fixation while Britain (Sexual Offenses Act herself. Therefore there is no solid foundation 2003) and many former colonies have realized to protect the notion of irrevocable consent in that the marriage should not act as an marriage. A woman should have the right to ingredient which a woman will have to sign her dissent for sexual intercourse when she’s sick, body away to the husband. Therefore from the pregnant or when the husband is intoxicated. legal point of view, Sri Lankan law makers B. Blackstone’s Marital Unity Theory should not get disrupted by the cultural myths in between the procedure of criminalizing The English law concept of Marital Unity marital rape. Additionally with respect to Theory and the Roman Dutch law concept of A.27(15) of the Constitution, Sri Lanka holds a marital power where the wife was considered a state obligation to ensure the protection of minor within the matrimonial home remained women from marital rape during marriage by valid until mid-19’s and started to diminish implementing laws. along with the introduction of Married Women’s Property Rights Acts in many II. CRITICISM ON THE jurisdictions. JUSTIFICATIONS WHICH EXCEPMT MARITAL RAPE FROM THE In the context of Sri Lanka this concept remains OFFENSE OF RAPE contrary to the fundamental right, A.12 of the Constitution. A. Irrevocable Consent C. Lack of significance compared to non- It is quite interesting how Lord Hale has marital rape presented his claim with no valid logic, jurisprudence, case law, or legal justification. He Marital rape is disregarded from criminalizing stated that the wife instinctively gives her legal on the belief that it is not an extreme offense identity to the husband when she gets married compared to non-marital rape and is not and it enables for all sexual actions that would prevalent. But the results of a study done by not be able to be withheld at a further stage due WHO on Sexual Violence reveals that rape by an to any other cause. He implemented the intimate partner is neither endemic to any principle of "implied consent" to be specific area of the world nor it is uncommon irrevocable throughout the union, which begins (World Health Organization, 2011, p.1). when the woman consents to begin the Another survey implemented in Sri Lanka matrimonial relationship, and persists until the shows a value of 15.5% of men having reported matrimonial agreement ends by way of a on raping their wives (Fig.1). Thus the situation divorce. This confirms that once a girl enters should not be disregarded by law believing it to into a matrimonial relationship, she eventually be insignificant. loses her freedom to deny sex at a particular D. Privacy in Marriage instance with her spouse and since sex has been expanded as a marriage related obligation of a The prevention of intrusion into the sacred woman, her human right to bodily autonomy union of marriage by legislation is a poor and right to consent hereby remains argument since under the modern day family questionable. In R v R Lord Keith at House of law, divorces are already being handled by Lords declared that the notion of Hale cannot be civil courts. Additionally the intervention applied strictly in the modern context at all the by law is not harmful to relationships where circumstances. non-consensual intercourse result in causing a harm, because the law has a legitimate concern This theory is incompatible with the concept of in coping with sexual assault as the lawful consent interpreted in other types of laws.

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law guardian of the fundamental right to life. Thus capital, irrespective of the original allocation of it is absolutely rationale for the law to interfere entitlements, as long as the entitlements are in coping with marital rape. well specified (Medena 2009). Assumption of the transaction cost as nil also has important E. Difficulty in Proof consequences on law. Regardless of the original Initially, a felony should not be dismissed on the distribution of entitlement and regardless of the basis that it would be tough to verify. Secondly, law regulating the usage of capital, the parties marital rape is not hard to ascertain. must bargain with no cost for the Establishing rape is often premised on maximally efficient resource distribution (Cole circumstantial evidence. And if the crime is & Grossman 2011). perpetrated according to the prevailing Coase tackles with a variety of key issues perception, yet it is often hard to prove since in including the efficient sharing of land rights, most instances the woman is being raped by an property within the negotiating parties, the individual whom she probably knows and if a question of shared social cost and externalities. female is a survivor of marital rape it implies According to the theory, a minimum of two that there is a historical record on sexual abuse parties are required for production of an which in fact could be verified using forensic external cost, i.e. a person to create it and the evidences. other to bear it. Although forensic evidences might not be On the application of the theory to the case of credible, the physical examination shall not be marital rape, the first is that the woman has the used as a basis to decriminalize the crime as right to her private property, which is her body, there are many other mechanisms to assert it and the second is that the husband has the including testimonies of witnesses’ digital marital right to have intimate intercourse with evidences etc. and such mechanisms should be his wife. There is a question of concern at this included in the Evidence Ordinance. moment of time when the woman does not F. Probability of Misuse agree to sexual intercourse. Following the One of the major justification that goes parallel principle of Coase, the author attempts to allow with the previous justification (difficulty in the participation of the two parties by seeking proof) on not initiating marital rape as an to guarantee the most effective division of offense is by relying on the contention that rights. The outcomes of such participations women might use the law to accuse the differ according to the existing laws on marital husband based on egocentric motives. Although rape. the case law has provided a relatively fair • In a country where marital rape is rationale on this, the legislation is intended to illegal recognize misleading allegations and therefore such notions are not able to be conjectured Initially the property privilege at this point until laws surrounding marital rape are rests within the wife by overriding the marital enforced. Moreover the malicious prosecution right of the husband. Accordingly if the husband could be proved by the defendant in a case of seeks intercourse without the permission of his misuse by the plaintiff. wife by exceeding his marital right, he’ll be offended by the felony of marital rape. The III. ECONOMIC VIEWPOINT husband hereby endures a heavy cost by getting A. Coase Theorem imprisoned and by having to compensate the spouse. On the other hand if he outdo his right The theory of Coase is a legal economic theory yet with the consent of his wife the cost will be that clearly claims that if the transaction cost is comparatively lower than the former. The nil, there would be an efficient distribution of author therefore validly concludes that the

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law coercion implies a greater burden for the society depending on the circumstances. husband relative to not committing marital However a variety of externalities could occur rape. Thus the exercise of marital rape is specifically in a country like Sri Lanka where not economically efficient under this legal the law does not criminalize marital rape and framework. which most of those externalities happen to be negative costs rather than benefits. For • In a country where marital rape is legal instance, the wife's sense of anxiety will make At this point, neither party has an overriding her feel gloomy resulting a pressure privilege on the exercise of their rights over the towards her to kill herself or to cause a other. On the belief that the husband holds detrimental harm on her kids. Thus the private the right over his wife's property and if he costs in combination with externalities asserts his marital right to intercourse despite contribute to create a collective social cost, the wife's approval, it is extremely probable and which has a profound impact on the entire inevitable that she may incur a range of private community. expenses that would potentially harm her • PMC = Private Marginal Cost private property. Additionally the psychological trauma and loss of feeling of protection on • XMC = External Marginal Cost getting assaulted by a close companion would • SMC = Social Marginal Cost often result in an unbridgeable harm and a social cost. The crime of marital rape thus • PMD = Private Marginal Benefit results in a large social cost causing a reduction • SMD = Social Marginal Benefit in the overall national growth. • S = Supply When we equate the expense incurred by the woman to the husband's expense of not having • D = Demand the opportunity to satiate his desire, the author may soundly conclude that the wife's X cost will be greater. The least cost alternative will thus in not letting the wife being raped, i.e. P3 by criminalizing marital rape. Consequently, regardless of the regulatory context and the P2 original distribution of individual rights, author observes that the marital rape is not cost P1 effective. Marital rape therefore should be criminalized in Sri Lanka for that cause.

B. Cost Analysis 0 The economic cost of marital rape is of two Q1 Q2 Y Fig.2 – types, i.e. private and social cost. Private costs Graph on marginal social cost of are the expenses that only impact on marital rape an individual with no interference of the society. Social cost is the overall cost of the As shown in the figure above, if the private cost society, i.e. the combination of all the private is solely regarded, the expense generated would costs and external costs. be minimal (a). Yet along with the augmentation of such privately owned cost by The burden of the husband's assault in the first the victimized wife, negative externalities are place will have to be borne by the woman and been created (XMC). When such negative therefore the cost is private. It has no direct externalities get combined with the private implications on the society but might impact the

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law cost, the social cost increases (a + XMC= b) and considering the severe implications of the as a result the overall social welfare decreases crime, the author concludes marital rape as a by having a negative impact on the national gross breach of fundamental human rights growth of the country. guaranteed by the supreme law of the country and it should be avoided by the establishment But if we place a law at the exact similar of an economically efficient law which setting, the negative externalities will not preserves the victims' rights and privileges in generate any impact, since the laws contribute order to increase the national growth of the towards the positive externalities. Owing to country by way of a holistic approach. the criminal offense of marital rape, the husband will be rigid in exercising his deeds, RECOMMENDATIONS while the wife would feel secured. As a result a The following recommendations are formulated happy family background will be created by by the author depending on the findings and reducing the overall cost at the end. conclusion. CONCLUSION A method needs to be implemented to collect Regardless of marital rape being not recognized statistical data on marital rape cases and the as a crime, Sri Lankan women put up with the authority collecting such data should analyze ongoing issue which is most frequently the private costs and the social cost causing unreported.Due to the lack of legal provisions thereby separately for the law making bodies to these victims tend to experience various post- understand the significance of introducing a law trauma symptoms that encounter many types of to criminalize marital rape. extreme abuse by creating a private cost. Along Amendments to the penal code shall be brought with the generation of negative externalities by out by criminalizing marital rape under any marital rape, a social cost is produced (private circumstance whether they are living together cost + negative externalities) that economically and not separated or the victim is under a de affects the whole community by having a facto separation. negative impact on the national growth. Notwithstanding this economic viewpoint, Burden of proof in Sri Lanka with reference to many traditional and modern theories marital rape should be beyond reasonable obstruct the path towards criminalizing marital doubt unless the victim can provide evidences rape. The author concludes the theories to be such as digital evidences i.e. CCTV footage, invalid since there is no law which permits a independent eyewitnesses, forensic evidences, person to cause bodily injuries to a woman. For vicious history of husband and previously that reason, the United Nations has declared the reported sexual crimes by husband etc. importance of the practical realization and Accordingly the Evidence Ordinance needs to understanding of women’s rights. Nonetheless be amended. the practical realization of women rights Government guidance should be provided for become an unachievable goal if no laws exist institutions to implement social practices in against all forms of harassments and violence order to change the attitudes of the society faced by women despite of the relationship she related to marital rape. Additionally gender shares with the to its Optional protocol 1, to sensitive pedagogy practices for law makers, ICCPR and to UDHR holds a responsibility to law students, lawyers and judges should be fulfil and protect the international women provided. human rights embodied in the treaties The Victims should be authorized to enter the positive outcomes on criminalizing marital rape litigation process by supplying necessary legal could be cited from economically developed aids along with the fulfillment of medical countries such as USA and UK. Finally by

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law requirements and counseling services and Journal Articles whilst the litigation procedure the dignity and Hasday, J, (2000), ‘Contest and Consent: A Legal anonymity of the victim should be safeguarded History of Marital Rape’ California Law Review, in order to encourage the victimized parties to 88(5), p.1373. make a voice by breaking the current social norms on marital rape. Jackson A, (2015), 'State Contexts and the Criminalization of Marital Rape across the

United States', Social Science Research (2015) References 51, pp. 290-306. Primary Sources Wilcox, W., & Nock, S. (2006). ‘What's Love Got to Do with It? Equality, Equity, Commitment Case Laws and Women's Marital Quality’, Social Forces, Manohari Pelaketiya v. Secretary, Ministry of 84(3), pp. 1321-1345. Education and Others (2016) S.C. Application Reports No. 76/2012 Central Bank of Sri Lanka. (2019) Annual Report People v. Liberta (1984) 485 N.Y.S.2d 207 2018, Sri Lanka. R v. R (1991) UKHL 12 Fulu, E., Warner, X., Miedema, S., Jewkes, R., Treaties Roselli, T. and Lang, J. (2013) Why Do Some Men Convention on the Elimination of All Forms of Use Violence Against Women and How Can We Discrimination against Women, 1979, Prevent It? Quantitative Findings from the United (resolution 34/180) adopted 18 December Nations Multi-country Study on Men and 1979. Violence in Asia and the Pacific, Bangkok. International Covenant on Civil and Political Commission on the Prevention of Violence Rights (ICCPR) 1966, (resolution 2200A) against Women and the Girl Child. (2014) adopted 16 December 1966. Report of the Leader of Opposition's Commission on the Prevention of Violence against Women The Universal Declaration of Human Rights and the Girl Child. Sri Lanka. (UDHR) 1948, (resolution 217 A) adopted 10 December 1948. World Health Organization, (2011) Violence against women– Intimate partner and sexual Legislations violence against women. Geneva. Penal Code Ordinance 1883 (Sri Lanka) AUTHOR BIOGRAPHY Sexual Offenses Act 2003 (UK)

Constitution of Democratic Socialist Republic of

Sri Lanka 1978 (Sri Lanka)

Secondary Sources

Books

Cole, D. & Grossman, P., 2011, Principles of Law and Economics, Pearson Prentice Hall, New Duneesha Thathsaranee Siwrathne is a final Jersey. year law undergraduate at General Sir John Kotelawala Defense University. Medema, S., 2009, Legal Fiction: The Coase Theorem and the Evolution of Law and Economics, Princeton University Press, New Jersey.

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Paper ID: 379 Establishing Rule of Law to Achieve Sustainable Development: The Pathway for National Growth in Sri Lanka TD Walgama

Faculty of Law, General Sir John Kotelawala Defence University

[email protected]

Abstract - Rule of Law is a fundamental Keywords— Rule of Law, Sustainable Development, constitutional principle that should be National Growth respected by all states. The importance of INTRODUCTION establishing rule of law to achieve sustainable development is highlighted in international law. Rule of Law establishes that every person is United Nations mechanisms have also identified subject to law and is bound by the laws and that establishing rule of law through the regulations of the country and held accountable protection of human rights, eradication of in its face. Rule of Law ensures the equal poverty and equitable exploitation of resources distribution of resources, protection of human would lead countries to achieve sustainable rights and access to justice. Rule of Law development. Thus rule of law, while ensuring becomes a crucial aspect in sustainable social and economic development guarantees development which aims to meet the environmental protection through the proper development needs of the present generation operation of law. The role of the government while conserving the resources for the future and its effective functioning is considered generations. Though the importance of paramount within this scope and all citizens establishing rule of law in order to facilitate owe a duty to enjoy their rights without causing sustainable development has been broadly damage to the environment. In this manner it is identified in international law, in Sri Lanka it is seen that rule of law becomes the centre point seen that certain barriers are imposed in for sustainable development and Sri Lanka ensuring rule of law which has thereby caused a should be concerned in establishing rule of law hindrance in the achievement of sustainable to facilitate the achievement of sustainable development. This research has attempted to development goals 2030 set by the United address this research problem by evaluating the Nations. Thereon this paper discusses the international and domestic frameworks of rule importance of establishing rule of law in the of law and sustainable development. In such a pathway of achieving sustainable development. background this research has been conducted Attention is paid to international standards on with the main objective of analysing the the concept and thereby loopholes in the relationship between rule of law and existing national legal framework have been sustainable development and discussing how identified. Moreover the role of judiciary and establishing rule of law would lead to administrative institutions in enabling justice sustainable development thereby national and proper enforcement of law is highlighted. It growth in Sri Lanka through the compliance to is noted that Sri Lanka must develop a international standards and effective comprehensive national framework with an functioning of the government. The research effective monitoring procedure and responsible has identified the loopholes in the existing legal institutions for the achievement of sustainable framework and thereby would suggest development which would lead its way to mechanisms to stabilize the law related to the comply with international standards and concepts. ultimately to national growth.

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METHODOLOGY principles. The United Nations Secretary- General defines rule of law as a principle of To achieve the said objectives the black letter governance in which all persons, institutions approach has been adopted with the aid of and entities, public and private, including the primary sources such as international State itself, are accountable to laws that are instruments forwarded by the UN, international publically promulgated, equally enforced and and national statues covering aspects of independently adjudicated, and which are sustainable development, the constitution and consistent with international human rights judicial precedents which has applied the norms and standards. It requires, measures to established laws with a view to recognize the ensure adherence to principles of supremacy of law related to the two concepts. Secondary data law, equality before the law, accountability to has been collected through scholarly articles, the law, fairness in the application of the law, text books which have elaborated the legal separation of powers, participation in decision- aspects of sustainable development. Working making, legal certainty, avoidance of papers and review reports of public authorities arbitrariness and procedural and legal of Sri Lanka have also been used to analyse the transparency (UNSC Report 2004). progress and mechanisms of attaining sustainable development in Sri Lanka. Through International Standards on sustainable such analysis conclusions have been reached as development to how Sri Lanka could facilitate means to The concept of sustainable development has establish rule of law with a view to achieve been bought to light with the various economic sustainable development thereby lead the developments across the globe and the country to national growth. recognition of the possible environmental Rule of LAW threats of such developments. The World Commission on Environment and Development Rule of Law is a basic constitutional principle defines sustainable development as the which states that every individual is subject to development that meets the needs of the Law and all citizens are equal before Law. The present without compromising the ability of principle enumerates that the government itself future generations to meet their own needs. Rio is subject to Law and cannot act arbitrarily in its Declaration in the same manner recognizes the own will. The concept was first enumerated rights of states to exploit their resources in a Dicey whereby he provided three basic manner that does not cause harm to other definitions to Rule of Law. Accordingly the jurisdictions and recognizes that right to principle establish that no man could be development must be enabled in an equitable punished unless in accordance with the law in a manner to meet developmental and formal court of law, no man is above the law environmental needs of present and future and a person of whatever rank or status is generations. (Rio Declaration 1992). Through subject to the ordinary course of law and that various other developments such as Agenda 21 the English Constitution is mostly a court based which was specifically aimed at sustainable constitution which has recognized the rights of development by implementing developments private persons that any other written law. goals for the 21st century and The Millennium Detaching from the initial interpretation many Development Goals for 2015, the international scholars developed the concept to include the standards on sustainable development has absence of arbitrary power of the government, constantly been developed. As the law stands the supremacy of parliament, independence of today Agenda 2030 has specified the the judiciary. Hence latter developments of Rule sustainable development goals for all UN of Law have established an umbrella term member states calling for a national and which embeds long standing constitutional

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law integrated approach to achieve the 17 safety of people along with satisfaction of their sustainable development gaols which concerns needs. Strengthening penal legislation and the many social and economic aspects. criminal justice system as a whole alongside achieving transitional justice would enable LINK BETWEEN SUSTAINABLE sustainable development through establishing DEVELOPMENT AND RULE OF LAW peace and stability. Rule of Law ensures Sustainable Development suggests integration accountability, fairness and reducing between economic development, social corruption. Arbitrary actions of public development and environmental protection. It authorities are avoided through check and includes protecting natural resources, having balances within the three organs of equal access to resources, eradication of government. Protecting natural resources is poverty and the protection of human rights. integral to sustainable development. Rule of law Establishment of Rule of Law on a national guarantees that environmental rights and basis would ensure that the rights of equality of regulations, administrative protection of the all citizens are protected in all aspects through environment are in line to sustainably protect the elimination of inequalities and disparities the environment. which would lead to sustainable development, In this way rule of law becomes the centre point in turn achieving national growth. The of sustainable development in ensuring equality relationship between the two concepts were of distribution of all resources, providing equal agreed on in The Declaration of the High-level access to justice and eradication of poverty. Meeting on the Rule of Law which highlighted States should work towards establishing rule of that “rule of law and development are strongly law through integrated policies and such would interrelated and mutually reinforcing, lead to economic and social development advancement of the rule of law at the national thereby achieving sustainable development. and international levels is essential for sustained and inclusive economic growth, BARRIERS ON ACHIEVING SUSTAINABLE sustainable development, the eradication of DEVELOPMENT IN SRI LANKA poverty and hunger and the full realization of The Sri Lankan law on sustainable development all human rights and fundamental freedoms, was silent until the enactment of the including the right to development, all of which Sustainable Development Act No 19 of 2017. in turn reinforce the rule of law”. Further Sri Lanka’s vision for sustainable development Sustainable Development Goal 16 articulates involves “Achieving sustained economic growth the key role that governance and the rule of law that is socially equitable and ecologically sound, play in promoting peaceful, just, and inclusive with peace and stability” (National review societies and in ensuring sustainable report on the implementation of the sustainable development (UNDP 2016). development goals of Sri Lanka 2018). Though Rule of Law is discussed in a multiplicity of the act has been introduced in par with the aspects within the scope of sustainable introduction of the sustainable development development. Protection of the property rights goals of UN in 2015, the act does not contain of citizens, creation of business opportunities explicit provisions on enabling sustainable and elimination of income disparities would development. Sustainable development in Sri assist states in reducing poverty, achieving Lanka mainly focuses on eradication of poverty, economic development. Equal access to justice, ensuring economic competitiveness, social protection of human rights and equal access to development, good governance and ensuring a public services being components of rule of law clean and healthy environment. Though Sri lead countries for social justice and Lanka has been able to achieve the set goals to a development. Rule of Law enables the physical certain extent problems exist in relation

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law depletion of the environment due to to voice their concerns collectively on the basis development projects, improper land usage due of equality enabling rule of law and achieving to increase in urban population, regional sustainable development. income disparities and poverty, fiscal As noted in Bulankulama and others vs. disparities and the ineffectiveness of the Secretary, Ministry of Industrial development delivery of public services. (National review and others (2000) (SC Application No 884/99 report on the implementation of the sustainable (FR)), citizens should be allowed to forward development goals of Sri Lanka 2018) applications on the breach of fundamental It is seen that the absence of a proper legal rights as the court should not only be concerned framework, non-adherence to the existing on who forwards the application rather on the administrative and legal regulations are the fact that the matter is bought before court to main barriers for achievement of sustainable ensure justice. The concept of sustainable development in Sri Lanka. The establishment of development has been discussed in the case rule of law through a strong legislative and following the position that UN principles and judicial framework would compel every conventions on sustainable development stakeholder to comply with the standards of though forms a part of soft must be adhered by environmental regulations which would Sri Lanka being a member state of the UN either establish equality and reduce the damage through express recognition or the adoption to caused to the environment. Rule of law thereby the domestic law through superior courts in becomes a mechanism of achieving sustainable their decisions. Similarly in the case Ravindra development through a system of regulation Gunawardena Kariyawasam vs Central and justice. (Desai & Berg, 2013). It imposes Environment Authority (2019) (SC Application restrictions on the use of power through fair No 141/2015) superior courts have established and equal rules and focuses on the rights of that the courts does not exhibit any hesitation poor and marginalized in seeking redress for in applying the Rio Deceleration in the domestic grievances through legal and social institutions context to ensure that development projects are (UNDP 2016). Hence a greater role in enabling initiated in environmentally sustainable sustainable development falls on the manners. The case Watte Gedara Wijebanda v government and other regulatory bodies to Conservator General of Forest and eight others establish equality in access to justice and (2007) (SC Application No. 118/2004) has also resources through transparent policies which elaborated that irrespective of the fact will lead to intra generational and inter- international instruments are nonbinding in generational equity part and parcel to character they form a greater part of the sustainable development. environmental proetcion law regime of Sri Lanka. Thus the role of judiciary in giving JUDICIAL ACTIVISM domestic recognition to international principles The role of the judiciary in Sri Lanka has been on environmental law is highlighted. minute in the arena of sustainable development. The importance of recognition of the concept Citizens should be given equal access to justice was further understood in Gabčikovo- enabling public interest litigation on the basis of Nagymaros Project, Hungary v Slovakia (1997) the collective rights of the citizenry. In the ICJ Rep 03, where it was discussed that new judicial public interest concepts have been developed within the scope litigation has enabled citizens to raise their of environmental law and they must be given voice against unsustainable development due recognition not for the mere purpose of it activities of the government and private but for that they attempt to reconcile the institutions subjecting such actions to judicial environment and development with respect to review. Public interest litigation allows citizens

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law human happiness and welfare. Further the paving its path to rule of law there achieving courts should ensure equality in property national growth in the long run. ownership, gender equality and human rights MENDING THE LOOPHOLES empowerment so that equal opportunities are provided for business and occupation providing Though the role of legislation and judiciary in for economic development which would the process of achieving sustainable ultimately lead to sustainable development. development is understood there are practical Facilitating access to legal information and to problems in its implementation. Even though institutions of the rule of law provides means the sustainable development act has been for the poor to take advantage of economic enacted in the year 2017 vagueness as to the opportunities and resist exploitation, achievement of sustainable development and particularly by making local institutions the procedure for such achievement has accessible (Golub, 2010).Thereon the need of remained a doubt. Thus the mere enactment of judicial interference in unsustainable laws is not sufficient to lead the country development projects would protect natural towards sustainable development. The role of resources for the present a future generation the government is paramount in providing with respect to international and domestic incentives and other subsidiaries to the people standards. Judicial decisions on environmental with low income levels, providing for their basic related issues must safeguard the health and human needs, reducing financial disparities to safety of people, ensure viability of their enable equality. Accordingly short term goals occupations and protect the rights of future should be set guiding the procedure through generations (Eppawala case). which the long term goals could be achieved. Furthermore in such goal setting international The judiciary has a role to play in ensuring the standards must be respected and followed. effectiveness of the criminal justice system as a Agenda 2030 has identified the need of means to facilitate peace and security of the establishing rule of law as paramount to the citizens. Analysis within this purview suggests achievement of sustainable development, that among the different determinants rule of thereon these procedures must establish rule of law, the control of violence has exhibited the law leading to national growth and achieving its strongest connection to economic growth ultimate goal ‘leaving no one behind’. Hence an particularly in developing countries (Haggard integrated national approach of establishing the and Tiede, 2011). Ensuring the security of the law, ensuring social and economic development citizens is to be achieved both in the aspects of while preserving the natural resources is called establishing peace by avoiding conflict and for. violence and the fulfilment of basic needs on the basis of equality. The judiciary should work Policies for sustainable development should be towards avoiding corruption and arbitrary framed to strengthen the laws on over actions by public authorities. The exercise of exploitation of resources, formation of executive power is subject to judicial review institutes to administrate the enforcement and and the judiciary shall maintain its practise of such laws and empowering people independence in deciding on matters that affect on their rights. Limits should be set on the rights of public. This mechanism is enabled consumption and production so as to retain through the system of checks and balances sustainability. Sri Lanka could take lessons from embedded in the concept of separation of countries such as New Zealand, Mexico and powers part and parcel of rule of law. Thus Norway who have imposed such regulations judicial activism would enable equality of with the aim of suitability. Further the resource distribution, ensuring peace and resources in the country should be protected stability and avoiding arbitrary use of power effectively through proper administrative

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law functioning, independent from political motive. principles would in itself lead the country Administrative regulations should be practised towards equality and justice achieving rule of effectively to ensure that corporate bodies are law which ensure an equal distribution of given the jurisdiction to act against harmful resources, peace, stability and environmental effects to the environment. Organizations both protection which would ultimately lead the and public and private should be established country towards sustainable development under government regulations and authority thereon achieving national growth. with the aim of functioning as independent Conclusion institutions to afford a greater protection to the environment. Empowering citizens on their Sustainable development aims the satisfaction community rights would provide them the of the needs of the present generation without opportunity to voice their concerns and compromising the needs of the future participate in decision making process. Thereon generations. Though states aim towards they will understand the role they play through sustainable development they are met with a balance of rights and responsibilities towards obstacles due to environment depletion, lack of the achievement of sustainable development. social and economic development. Hence establishing rule of law would be the main As an independent judiciary the courts should mechanism through which countries could always be led by the constitutional principles create an environment of equality, satisfaction aimed at protecting the rights of the citizens of human rights and establish peace and and the environment. The shared responsibility stability. Rule of law would ensure that in protecting the environment should be upheld disparities in income distribution are in all circumstances. International standards eliminated, citizens are provided equal and instruments on sustainable development opportunities to exploit resources, peace and should be expressly recognized by the judiciary stability is provided and that their rights are through application in superior courts. Criminal protected while conserving the environment. sanctions should be imposed on environmental Thereby rule of law is paramount as it respects misconduct and public interest litigation should the constitution and the laws of the country be enabled. Similarly jurisdiction should be which are in fact aimed towards protecting the given for civil authorities to take actions against citizens and ensuring their welfare. unfavourable environment actions. Sri Lanka should initiate a proper mechanism which To establish rule of law in Sri Lanka the would guide the achievement of sustainable government must implement laws for development goals by the year 2030 along with environmental protection, ensure a proper monitoring and evaluation procedure. administrative authorities are in proper Such procedures would ensure that Sri Lanka function taking actions against environmental stands in line with the UN regulations on malpractice and the judiciary works towards environmental protection and sustainable the establishment of rights of the people and development through the achievement of peace, the environment. Compliance to international stability and strong institutions (Sustainable standards would signal that Sri Lanka is on its Development Goals Goal 16) way to the achieve the sustainable development goals by 2030. Hence it can be concluded that It is evident that the government of Sri Lanka establishing rule of law is integral to has a critical role to play in enacting proper sustainable development and Sri Lanka laws, monitoring compliance to them and in complying to international standards must administering justice in relation to the work towards establishing rule of law through achievement of sustainable development. an integrated national approach with specified Respect upon the fundamental constitutional tasks, monitoring and evaluation so as to fulfil

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law the needs of the present generation and migration/generalassembly/docs/globalcompact/A_CONF conserving its resources for the future in order .151_26_Vol.I_Declaration.pdf to facilitate national growth and security in the United Nations General Assembly, Report of the World long run. Commission on Environment and Development - Our Common Future, Viewed on 08 July 2020, REFERENCES https://sswm.info/sites/default/files/reference_attachme nts/UN%20WCED%201987%20Brundtland%20Report.p Bulankulama and others vs. Secretary, Ministry of df Industrial development and others (2000) (SC Application No 884/99 (FR)), United Nations Secretary General, The Declaration of the High-level Meeting on the Rule of Law, Viewed on 08 July Desai, Deval & Berg, Louis-Alexandre. (2013). Overview on 2020, https://www.un.org/ruleoflaw/high-level-meeting- the Rule of Law and Sustainable Development for the on-the-rule-of-law-2012/ Global Dialogue on Rule of Law and the Post‐2015 Development Agenda United Nations Secretary General, The rule of law and transitional justice in conflict and post-conflict societies, Gabčikovo-Nagymaros Project, Hungary v Slovakia, [1997] Viewed on 08 July 2020, ICJ Rep 3, 5th February 1997, United Nations [UN]; https://www.un.org/ruleoflaw/blog/document/the-rule- International Court of Justice [ICJ] of-law-and-transitional-justice-in-conflict-and-post- Golub Stephan, 2010. ‘What is legal empowerment?: An conflict-societies-report-of-the-secretary-general/ introduction, Legal empowerment: practitioners' Watte Gedara Wijebanda v Conservator General of Forest perspectives. Rome: International Development Law and eight others (2007) (SC Application No. 118/2004) Organization, Viewed on 10July2020, https://www.files.ethz.ch/isn/138100/Golub_Introductio Acknowledgment n.pdf I would like to offer my sincere gratitude to the Haggard, S. and Teide, L. (2010), The Rule of Law and lecturers in the Faculty of Law, General Sir John Economic Growth; Where are we? Conference on measuring rule of law, University of Texas Kothelawela Defence University for their constant guidance and support throughout the Ministry of Sustainable Development, Wildlife and compeletion of the paper. Regional Development, Sri Lanka Voluntary National Review on the Status of Implementing Sustainable Author Biography Development Goals, Viewed on 06 July 2020, https://sustainabledevelopment.un.org/content/documen ts/19677FINAL_SriLankaVNR_Report_30Jun2018.pdf

Ravindra Gunawardena Kariyawasam vs Central Environemnt Authority (SC Application No 141/2015 Stephan Haggard and Lydia Tiede, (2011), The Rule of Law and Economic Growth: Where are We?, World Development, 39, (5), 673-685 Thamasha Walgama is a final year United Nations Development Programme, Rule of Law – undergraduate in General Sir John Kothelawela Annual Report 2016, Viewed on 06 July 2020, Defence University. She takes a keen interest in https://www.undp.org/content/undp/en/home/libraryp the areas of Constitutional Law, International age/democraticgovernance/access_to_justiceandruleoflaw /rule-of-law-annual-report-2016.html Law and Administrative Law. This research deals with the concepts of Rule of Law and United Nations General Assembly, Report of the United Sustainable Development with a view to archive Nations conference on environment and development, Viewed on 08 July 2020 National Growth in Sri Lanka. https://www.un.org/en/development/desa/population/

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Paper ID: 732 Application of the Concept of Reparation in Transitional Justice in Sri Lanka

AN Hettiarachchi and WDS Rodrigo#

Faculty of Law, General Sir John Kotelawala Defence University

#[email protected] Abstract - This study discusses the application ess the individual cases equally and of the concept of Reparation as an element effectively rather than addressing the of Transitional Justice (TJ) in the social grievances of specific communities. transformation process especially after fragile Key Words - Transitional Justice Reparation, circumstances in the society.The objective of Victim Centric Aprroch this study is to analyze the application of Reparation in TJ processes in Sri Lanka in the I.INTRODUCTION post-conflict context.The term reparation refers Transitional Justice (TJ) consists of Judicial and to the measures to satisfy victims, such as non – Judicial processes in order to address revealing the truth, holding perpetrators public grievances by way of Criminal accountable, and ceasing ongoing violations. Sri Prosecution, Truth Commissions, Reparations Lanka recognizes the concept of reparation and different kinds of Institutional aiming to assist victims by way of providing Reformations. The concept of TJ came into material and symbolic support.This recognition practice in the aftermath of World War Two empowers affected communities to claim their (WWII). Further, it has been applied in the case legal rights as equal citizens. The study, of organized genocide, ethnic cleansing, or therefore, emphasizes the needs of a Victim apartheid of South Africa. Reparations are often Centric Approach and the need to restrict a piece of the corrective recommendations politically initiated administrative measures in made in the TJ processes. It has been used the reparation process.Introduction of the systematically and alternatively to correct Reparation Act No 34 of 2018 to establish the certain well-orchestrated injustices by one Reparations Office can be regarded as a community over other communities in the form significant move to synchronize the reparations of forcible family separations, systematic sexual process in Sri Lanka with international abuse, systematic genocide or mass killing and standards.However, inconsistency in the prolong colonialism. The International Centre application of the concept of reparation is still for Transitional Justice defines reparations as noticeable.This study is a library study based “measures to satisfy victims, such as revealing on the secondary sources of domestic and the truth, holding perpetrators accountable, and international legal instruments, scholarly ceasing ongoing violations” in cases of massive articles, and judicial decisions.The study or systemic rights violations.Therefore, elaborates International standards on the reparation is an essential part of TJ and assists concept of Transitional Justice (ICTJ) to find a victims by way of providing material and gap in the Sri Lankan process of reparation in symbolic support which helps to treat victims the light of the Victim Centric Approach.The as equal citizens and build trust among study emphasizes issues related to discriminated and marginalized communities international standards and domestic with others. Sri Lanka had applied the concept applications within the concept of as a tool to assist victims of both man-made and reparations.Finally, this study suggests that the natural disasters. The effort to provide reparation process in Sri Lanka should adopt justice to the victims of the three-decades -long the Victimcentric Approach,therebyable toaddr warand reformation inthe Meetotamulla garbag

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law e dump tragedy, resettlement and restitution towards a peaceful and just society treating provided to victims of the 2004 Tsunami and victims at its foremost.Therefore, victim-centric the Meeriyabedda landslide are a approach with equal and fair application of the few examples of that. Further, an institution concept is at a greater challenge. such as the Rehabilitation of Persons, C. International Law Aspect of Reparations Properties and Industries Authority in the Transitional Justice Process and Its (REPPIA) and other government entities had Issues also worked to grant reparations for the people. However, Sri Lanka has never dealt with the The application of the concept of reparation in entire gamut of reparations but merely International law goes back to the Permanent addressed particular aspects of it by providing Court of International Justice (PCIJ) decision in inconsistent forms of compensation or the Factory of Chorzow Case and in this restitution. Reparation is a multi-faceted case, it was stated that “Reparation must as far process which is not restricted to financial as possible wipe out all the consequences of the payment but includes acknowledgment illegal act and re-establish the situation which of previous abuses, rehabilitation of victims, would in all probability have”.Further, it is and moreover, recognizes their dignity with stated that any act contrary to international law rights. The Sri Lankan application of the would give an obligation to restitution and this concept of reparation for victims of ethnic dictum has been widely accepted and or religious-based violence had further reaffirmed in later ICJ decision in the escalated the fragile situation of cases of Gabcikovo – Nagaymaros, the Armed its execution challenging the equal application Activities on the Territory of the of the concept among all communities. Congo and Papamichalopoulos v. Greece.Later,the United Nations Commission on II. METHODOLOGY Human Rights also recognized the right to This research is mainly a qualitative research remedy and reparation for victims in carried out by the reference of scholarly its guidelines in 2005.Further, the annual textbooks, journals, conference papers, and session of the General Assembly adopted these statutes.Open domain data were used for the principles in March 2006. Accordingly, analysis.This is a reform-oriented legal reparation mechanisms include restitution, research. Further, the study has referred to the compensation, rehabilitation, satisfaction and present Constitution of Sri Lanka, guarantee of non – repetition.These administration circulars and national policies principles were adopted in the Roman Statute especially the Office for Reparations Act No 34 of the International Criminal Court (ICC) and of 2018.Moreover, international standards, the International Convention on the Protection international legal instruments like the United of All Persons from Enforced Disappearances National Principles of Reparation, reports of the later. United Nations Human Rights Council,and Restitution refers to actions restore the victim International Law Commissioned reports were to the original situation before the gross used for the comparative analysis of the study. violation of International Human Rights Law III. DISCUSSION and International Humanitarian Law.Compensation refers to providing any Reparation is a critical component in TJ within economically assessable damages as proper and a transition expectation to correct previous proportional to the gravity of the violation and wrongs and prevent future repeats.If designed circumstances of each case.Rehabilitation refers and implemented in a holistic,comprehensive, to medical and psychological care as well as and complete manner, reparations treat all legal and social services. Satisfaction refers to a citizens equally and direct the transition

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law broad range of measures such as verification of people. Therefore, reparation focuses on the facts and full and public disclosure of the truth. victims as its foremost consideration. Finally, Non – Repetition refers to include broad D. The Reparations Policies in Sri Lanka and structural measures of a policy nature such as identified issues. institutional reforms to avoid the recurrence of such incidents. 1. Ad hoc Reparations Initiatives Accordingly, certain countries legally Since the end of the war, several man-made and established the concept of reparation through natural disasters have resulted in death, Truth Commissions such as the Truth displacement, and Commission of South Africa, Colombia, and devastation, consequently leading to the Sierra Leone. Moreover, the concept of provision of compensation. Further, authorities reparation included in the regional Human involved in that have used rights treaties such as the European Convention inconsistent schemes. Although reparations are on Human Rights and American Convention on largely focused around the war, ethno- Human Rights and the South African Coalition religious conflict, and other forms of violence, for Transitional Justice ( SACJT). They affirm the it has been used in the post-disaster situations rights to legal remedy and state that right to to avoid discrepancies creating discrimination remedy and fair compensation in the form of and inequities of victims. Ad hoc in nature reparations. SACJT includes reparations, compensation could be observed in both man- prosecutions, pardons, and truth-seeking and made and natural disasters in Sri Lanka as payment by way of urgent interim reparation illustrated in Table 1 below. for health, education, and economical loses. Table: Different Reparations Schemes in Sri Further, reparation actions were Lanka. empowered with the introduction of the National Unity and Reconciliation Act. Incident Damage Compansation However, international legal instruments do not Rs. 2 million each as clearly articulate or interpret the term victim 4 Deaths, 80 compensation for reparations. It is therefore flexible in injured and for deaths, application to different contexts. For example, Aluthgama 23 homes while those the International Humanitarian Law does not and Beruwala were fully who sustained define the term victim while some legal regimes Incident in damaged and injuries prefers to use the term survivor instead of a June 2014 2,017 homes during the victim. Further, the four pillars of TJ are partially clashes would interdependent on each other. damaged Therefore, efforts at truth and justice are receive Rs. meaningless if victims find no answers to their 500,000. issues, and their perpetrators are not being Rs.100,000 punished. Therefore, reparations on their 39 deaths and for death and Koslanda own can be seen as merely paying off victims if nearly 100 Rs.10,000 Landslide in they are not complemented with efforts to homes each for October 2014 provide meaningful measures of truth and buried school justice. These insights of international legal children instruments reflect that reparation helps Explosion in 1 death and Rs.100,000 victims to rebuild their lives in a situation the Armory at several provided for where the state gets its obligation towards its the Salawa others the deaths Army Camp in injured, 174 and Rs.25,000

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June 2016 houses each for ‘Most Affected Persons Compensation Scheme completely injuries for Government Servants’, destroyed, the maximum compensation amount granted 1,032 houses for a death was Rs.200,000 and Rs.100,000 was partially granted for an injury where lack of uniformity damaged and could be observed. The examples mentioned 1,325 above show the lack of uniformity in terms of residents compensation to the victims. Reasons for this displaced lack of uniformity could be identified as public outcry, pressure, and political influence etc. Rs.100,000 as These influences decided the final outcome of compensation the reparation effort.However, the National for a death Involuntary Resettlement Policy (NIRP) was 32 deaths and which was Meethotamulla introduced to discuss shortcomings related to 145 houses subsequently garbage resettlement and compensation. Finally, the and increased to tragedy in Lessons Learnt and Reconciliation Commission destroyed or Rs.1,000,000 April 2017 (LLRC) also stated “restitution and damaged with cabinet compensatory relief”, which emphasizes the approval after adoption of a Victim-Centric Approach while protests by ensuring the transparency and equality in the the victims reparation process despite the ethnic Ethno- background of the people. 3 deaths and religious Rs.100, 000 property of 2. Office for Reparations violence in was paid for 465 persons areas in Kandy each death The present constitution of damageed in March 2018 Sri Lanka guarantees the equal right and equal protection before the law under its fundamental Government right chapter. Further, statutory protection of promised to the breach of such right also provided with pay Rs 1 290 deaths effective remedy dignity of all victims of past Easter Sunday million each and over conflicts and protection of their rights is also attacks in for a victim 500 persons available in the Sri Lankan legal system. April 2019 and Rs injured Further, Sri Lanka accepted and recognized the 100000 each right to reparation as a component of the Sri for funeral Lanka transitional justice process in line with expenses. the United Nations Human Rights Council Source: National News Papers in Sri Lanka Resolution 30/1 in 2015. Accordingly, the Office for Reparations was established under Act No Other than that REPPIA was established in 1987 34 of 2018 as an independent as a consequence of the 1983 July riots with authority.Accordingly, the Office is the objective to assist affected people with empowered to formulate, design financial assistance. It had several schemes - and implement reparations policies in Sri one was the ‘Most Affected Persons Lanka.The Office receives the applications from Compensation Scheme for General Public’. an aggrieved person of a wide range such as The maximum compensation amount children, youth, women and disabled.The Act granted for a death under this scheme was refers to both individual and collective Rs.100,000 and Rs.50,000 was given for an reparations. However, reparations will not be injury. On the other hand under the scheme

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law granted to individuals or groups because they manifesto.The schemes introduced have the belong to a certain political party, movement, indirect ethno religious interest which state institution, or formation. Section 12(2) contributes to lose public confidence. and (3) of the Act states that reparations shall E. Comparative Study with International not prevent victims from pursuing legal remedy Standard. against violations and such victims shall be advised by the Office’s outreach units of their International legal instruments have accepted ability to appear before any that reparation is a state responsibility in which other proper authority, person or body. it gets a legal obligation to provide reparation for its actions. International Coalition of Justice Further, section 10(2) of the Act, states that the Process (ICJT) has recognized that different office for reparations may set up a number victims have different needs and those of (temporary or mobile) regional units as needs can be changed over time. Therefore deemed necessary to ensure that reparations types of reparation also vary according to the are accessible to all aggrieved persons. victim’s economic status, social class, gender, Therefore, it is important to keep the Office for age, and identity.For example, women and Reparations under the central government to children's needs differ from the needs of discharge fair and equal execution of its duties a disabled person as the need additional care. to the people. However, the execution of the Accordingly, the Sri Lankan application of the work through the provincial council is possible concept of reparation is far distant from under the present framework.However, there this understanding of the Victim-Centered were several criticisms against the office for Approach. A victim-centered reparations reparation as it was mainly focused on the program ensures that victims and their needs, matter of rehabilitation of ex – combatants. interests, and rights are always at the center of Further, there were other issues relating to the attention and constitute the goal of each policy. planning and budgeting stages. Other than that Here, “victims” are not just a homogeneous this study highlights several existing actors group or specific ethno-religious groups. including REPPIA and others who have a role in Sometimes victims can be a certain people or administering some forms of reparation. As this community in general. paper has repeatedly highlighted, reparations in SriLanka areadministered through numerous p An inclusive approach recognizes the political olicies and bodies, resulting in an ad hoc system right of every victim in common. However, it is that does not meet the needs of victims in any a challenge to find victims in an equal way in a comprehensive manner. Other than that those diverse society with the complexity of their decisions are subject to change based on public situations. For example, the distinction between outcry and political interests which victim and perpetrator is difficult in the light of always damage the trust and confidence of the the child . Therefore, the discretion people about the conduct of the reparation of concerned authorities may lead to office.Some inconsistency in the government inconsistent and non-comprehensive efforts at reparations also raise questions as to reparation process. Further, the examples whether successive governments provided mentioned above also show clear discrepancies reparations as a substitute to genuine attempts in response and reparations provided due to at truth and justice in Sri Lanka.The main issue factors such as political influence, public outcry, of the reparation in Sri Lanka is nothing else but and victimisation. Accordingly, institutions public outcry and political interests where like ICJT affirm that the transitional justice those reparation schemes come as process should give access to victims for legal an attractive political promise or political remedies such as a claim for their Fundamental agenda in the election Rights (FR). Sri Lanka can learn from the South

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African Coalition for Transitional Justice Acknowledgment ( SACJT) model which constitutionally This study would not have been conceivable empowered body in order to make sure the without the generous support given by efficient function of the newly established office numerous individuals throughout. We extent for reparation in this regard other than the our thanks to every one of them. Most expensive and complex process available to importantly, we would like to express sincere claim FR with the help of Article 126(2) of the gratitude to the Mrs.B K M Jayasekera AAL, the Sri Lankan constitution. Head of the Department(Civil), Faculty of Law, IV. CONCLUSION KDU for the kind support and assistance given to make this study a success. Sri Lanka had administered the concept of reparation through numerous policies and References administrative institutions. Yet, the absence Factory at Chorzow case , Germany v. Poland, of the key principles such as equity, non- [1928 ],PCIJ, Ser, A ,No .9 p.21. discrimination, and gender sensitivity in the process still can be observed. Comprehensive Gabcikovo – Nagymaros Project Case (Hungary application of the TJ, therefore, encourages v. Slovakia) , [1997], ICJ. Report 1997, p.7 , truth, justice, reparation, and non-recurrence of paras 149- 152. such events and reparation will be the one Armed Activities on the Territory of the Congo major element bringing justice to the victims. Case (Democratic Republic of the Congo v. Setting up the office for reparations raises Uganda),[2005]ICJ, Report 2005,p. 82 , para259. expectations which still need care, Papamichalopoulous v. Greece ,[ 2002] ( Article consideration, and commitment to address the 50) , ECHR, Ser. A, No 330. grievances of victims and affected communities in order to direct the reparation The Constitution of the Sri Lankan Socialist process in the victim-centric approach. Republic, 1978, Article 17 and 126 (20). Moreover, it needs legal and policy frameworks Rehabilitations of Persons, Properties and to integrate international law and standards of Industries Authority Act No 29 . of 1987. victim-centric and rights-based framework in the reparation process that avoids the creation National Involuntary Policy No 10 of 2000. of victim hierarchies. Office for Lessons Learnt and Reconciliation Commissions reparations should adopt an inclusive process – 2011. with transparency where all the communities have their trust and confidence towards it. The National Policy on Durable Solutions for confidence-building between the institutions Conflict Affected Displacement No 05 of 2016. and the communities could be done through Bureau of the Commissioner General Of policy reforms and as well as healthy Rehabilitations Act No 03 of 2006. execution of its duties. Further, continuous The Disaster management Act No 13 of 2005. application of the concept of reparation in a victim-centric approach when and where The Office for Reparations Act No 34 of 2018. needed would generate experiences and lessons Consultation Task Force on Reconciliation learned that further develop the concept. Mechanisms Act 03 of 2016. Finally, as the public trust doctrine encourages victims, the affected communities and civil Report of International Law Commission on society should monitor the workings of the Stare Responsibility, Draft Articles , designated institutions with regular interaction 2001,para11. to raise concerns to improve the process.

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Statute of the International Court of Justice – Hamber, B and Wilson R, Symbolic Closure 1946. through Memory, Reparation and Revenge in Post Conflict Socities, 2002, p 35- 53. Rome Statute on International Criminal Court - 2002. Rohith A and Mari j , Transitional Justice in the Twenty First Centaury , Cambridge University International Covenant on Civil and Political Press ,2006, p 120 – 42. Rights – 1976. Louise Arbour, “Economic and Social Justice for International Covenant on Economics , Cultural Societies in Transition,” New York University and Social Rights – 1976. Journal of International Law and Politics 40 De Greff P ,The Hand Book of Reparations, (2008):1-27. Oxford University Press, 2008. P 23. Pablo De Greiff (ed.): The Handbook of Reparations (Oxford University Press 2006).

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Technical Session III: Session Summary Session Theme: Contemporary Challenges and the Role of Private Law

Session Chair: Dr. Dan Malika Gunasekera

Technical Session III of Law was themed LLB Programme conducted at IDM Nations ‘Contemporary Challenges and the Role of Campus, Sri Lanka. Private Law’. it was chaired by Dr. Dan Malika First research presentation was on a very Gunasekera. Dr. Gunasekara passed timely topic during the pandemic situation. Examinations of the Incorporate Council of Title of the presentation was ‘Work-From- Legal Education (Bar) from 1993-1995 at Sri Home – The Legal Status of Sri Lanka’ and it was Lanka Law College, Colombo and called into the authored by AA Edirisinghe and NKK Mudalige. Bar in December, 1996. He Obtained Master of They recommended an overarching statute to Laws (LL.M) in International Law with provide legal guidelines to the Work From “honours cum laude” from University of Home condition of Sri Lanka. Utrecht, the Netherlands in 2001, and Doctor of Philosophy (Ph.D) in International Commercial Another labour law aspect which is timely Maritime Law between 2002-2005 with during the pandemic situation was addressed “honours cum laude” from University of by the research titiled ‘A Critique of Available Hamburg, Germany in 2008. He received a Remedies for Industrial Disputes Arising out of scholarship from International Max Planck COVID-19: A Comparative Analysis’ by HGS Research School for Maritime Affairs, Hamburg, Rosairo and HD Jayaweera. Germany from 2002-2005 to complete his PhD Third presenter of the session III was BAR studies. Currently he renders his services in Ruwanthika Ariyarathna who presented her diverse disciplines such as Senior Visiting research on ‘Employment Security of Lecturer, Faculty of Management, Humanities & Probationary Workers in Sri Lanka: A Social Sciences at Colombo Nautical & Comparative Legal Analysis’. Engineering College (CINEC) Campus, Malabe, ‘Impact of Covid-19 to the National Economy of Sri Lanka, Senior Visiting Lecturer: Department Sri Lanka: A Comparative Analysis with the of Economics, Faculty of Arts, University of United Kingdom on Employees’ Rights’ was the Colombo, Faculty of Law, Dalian Maritime final presentation of the session which also University, China, Senior Visiting Lecturer for focused employees’ rights during the COVID University of Bedfordshire, UK in its LLB situation. Programme conducted at CINEC Campus, University of Staffordshire, UK in its LLB All the research presentations were on Programme conducted at APIIT Sri Lanka and contemporary issues on Labour Law in this University of New Buckinghamshire, UK in its session.

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Paper ID: 651 Work-From-Home – The Legal Status of Sri Lanka

NKK Mudalige and AA Edirisinghe#

Faculty of Law, General Sir John Kotelawala Defence University

#[email protected] Abstract — Work from Home (WFH) is not a parties to the employment relationship. On the novel concept theoretically. However the other hand, the implementation of management practical application of WFH did not impact on and control during work from home, working many types of employment in the world until hours, contacting hours and facilities should be the COVID 19 situation. During WFH, the considered when formulating legal guidelines contract of employment still exists between the to work from home. Finally, a proper legal employer and the employee, subject to few guideline for both private and public sector in modifications. The place of work is different Sri Lanka was recommended in the research in from usual employment and still the employer order to protect all the parties in the has the control over the employee’s service. employment relationship which is a much However, it is pertinent to identify the legal needed gap that required to be filled. framework with regard to WFH, specifically in Keywords – Work from Home, Employment Sri Lanka due to many reasons. During the last Relationship, Protection of Labour Interests, few months, it was observed manipulation of Legal Guideline for work from Home labour, deduction of salaries, lay offs and unlawful termination which have not been I. INTRODUCTION addressed though a solid legal protection. WFH The year of 2020 has surprised the is also such initiation that was operated during conventional lifestyle of the society including COVID 19 situation without much expressed the job market. Although concepts such as work legal basis or guidelines. Therefore, the problem from home (WFH) has already been recognized addressed in this research paper is whether the as a method of doing jobs by management legal status of Sri Lanka with regard to work studies, it wasn’t good enough to obtain from home condition is adequate enough to attention until the lockdown situation due to protect the interests of both the employer and Covid 19 pandamic (International Labour the employee. Methodology followed in the Organization, 2020). research was the black letter approach Dingel and Neiman (2020) use occupational predominantly. However, the socio legal descriptions from the Occupational Information approach was also followed through Network (O*NET) to estimate the degree to observation and semi structured interviews which different occupations in the United States conducted. Moreover, the international can be done remotely (International Labour standards on work from home was taken as a Organization, 2020). They then aggregate these prototype to recommend a proper legal estimates using US employment in occupational mechanism for work from home condition. categories as weights. Their preferred estimate Analysis revealed that both the private sector is that 34% of American jobs “can plausibly be and the public sector lack proper legal performed from home.” (International Labour guidelines in terms of work from home Organization , 2020). South Asia’s case is condition. Moreover, the types of employment different from the above statistics, but is which cannot be functioned through work from relatable. Based on data from labour force home should also be considered and provided surveys, the ILO estimates that 7.9% of the with a relief to protect the interests of both world’s workforce worked from home on a

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law permanent basis prior to the COVID-19 According to the common law theories pandemic, or approximately 260 million introduced by cases such as Regina vs. Walker workers (International Labour Organization, (1958) and Ready Mixed Concrete (South East) 2020). The ILO estimates that while not all Ltd v Minister for Pensions and National occupations can be done at home, many Insurance (1968) the element of control and could ̶ approximately one in six at the global other related facts considered to seek the level and just over one in four in advanced contract of employment is inapplicable in a countries (International Labour Organization, situation of WFH. However the ‘right to control’ 2020). should be established by the employer in the WFH situation also in order to continue the Obviously the law on WFH was silent in many contract of employment, instead of ‘actual jurisdictions and Sri Lanka is no exemption to it. control’. Therefore the WFH guidelines should In the meantime the requirement of proper include provide the authority to the employer guidelines with regard to WFH popped up due to maintain the ‘right to control’ the employee to unfairness and unbalanced experiences faced for a certain extent. by the actors in the contract of employment; namely, the employer, employee and the State. Moreover it is required to expressly mention It was observed that none of the about the The default place of work which can abovementioned stakeholders were upto the be understood as the place or location where standard level of performance due to lack of the work would typically be expected to be guidance from legal framework in terms of carried out, taking into account the profession WFH. and status in employment (International Labour Organization, 2020). In case of WFH WFH is considered in this research, situation the default place of work will be employment in which the work is fully or partly different. However in order to maintain the carried out on an alternative worksite other same contract of employment with the same than the default place of work, specially at the level of control, it should be mentioned ‘home’ residence of the employee. of the employee as the alternative place of work II. METHODOLOGY during the WFH. The research was carried out using three Hours of work during WFH is another aspect methodological approaches. The black letter that requires consideration in this research. In approach of research and the international and Sri Lanka, for the private sector employees who comparative research methodology were used are covered under the Shop and Office based on legislative enactments and Employees (Regulation of Employment and international legal standards as primary Remuneration) Act No. 19 of 1954 (as sources and books, journal articles, conference amended), the maimum hours of work is proceedings, theses, and online resources as stipulated as 08 hours according to Section 3 secondary sources. The international standards (1) of the Act. However there is no practical are used as the yardsticks or benchmarks way of calculating the hours of work of an against which the efficacy of the Sri Lankan law employee in a WFH situation. Therefore the is ascertained. The empirical research conventional requirement of hours of work methodology was used to analyze the law in should be dispensed with in a WFH situation. context through the observations made by the Instead it can be adopted a ‘dealine system’ researchers. protecting both the employer and the employee. III. ANALYSIS Assigning a task with all the responsibilities and clear instructions should be the duty of the The usual ‘Contract of Employment’ sometimes employer and the employee should achieve it is not compatible with the needs of WFH.

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law within the given timeframe. Technology can be industrial disputes. The State should be vigilant used as a tool to communicate in this regard. on this regard since both the employer and the However the law can prescribe a minimum employee are under a lot of pressure from hours of work to selected employements such challenges in the employment. Industrial as administration, clerical ect, in which the Dispute Act No. 43 of 1950, should be amended hours of work can be calculated using accordingly to cater such needs of the employer technology. According to Harvard business and the employee. review, there can be several challenges in self It is prohibited that the application of this management under the WFH condition modality implies a reduction in the rights of the (Carucci, 2020). Therefore the understanding of worker, especially in their remuneration the situation should be mutual between both according to the telework law of chile. However the employer and the employee. Otheriwise it when the WFH situation occurred due to a may trigger industrial disputes due the pandemic situation, the employer might also be unsatisfied workforce in the country. in trouble in terms of the income. Therefore the Moreover, the telework law of Chile, the employer may also need a relief in terms of employer is allowed to operate a mechanism for payment of wages or salary to the employee. recording compliance with working hours will According the ILO’s Home Work be at the employer's expense. However the it is Recommendation (R184) of 1996, it can be limited to selected types of employments only. regularize a mimimum wage to be paid to the Other employees are free to allocate their hours employees or if the situation permits the of work and they are entitled to the right to minimum wage must be a result of collective disconnection. The right to disconnection bargaining and mutual understanding. consists of the fact that workers are not obliged to respond to communications, orders or other Types of Employment which cannot be requests from the employer for a period of at functioned through WFH is also a pertinent least 12 consecutive hours in any given 24-hour discussion in this research. There should be a period (Koehier, 2020). On the other hand the proper mechanism to manage those industries. ILO’s Home Work Recommendation (R184) of Both the employer and the employee are not in 1996, provides that a deadline to complete a a position to perform and to serve or produce, if work assignment should not deprive a the situation doesn’t support to work at the homeworker of the possibility to have daily and default place of work. Such industries include weekly rest comparable to that enjoyed by but not limited to, hotel, plantation and other workers. manufacturing. Costs of operation, functioning, maintenance Finally the employer’s duty of care to check on and repair of equipment should be borne by the the worker should be established through a employer in case of WFH. According to the ILO’s proper legal guideline apart from the above Home Work Recommendation (R184) of 1996, analysed factors. it is required to keep records of the employees IV. CONCLUSION AND RECOMMENDATIONS who are working from home, time allocated, In conclusion it is important to address rate of remuneration, costs incurred, following aspects in a proper legal guideline deductions of remuneration (if any) by the sponsored by the State; to both employer and employer. The administration would be employee: effective in such record keeping according to the international standard.s Default place of work and the alternative place of work should be defined within the contract of During WFH situation, there should be a proper employment mechanism to prevent, settle and investigate

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Parameters of WFH arrangements and potential, Geneva: International Labour performance objectives and expectations Organization. should be clear and discussed on a regular Koehier, K., 2020. Chile Telework Law, Santiago: basis. Dentons. Hours of work and the right to disconnection Ready Mixed Concrete (South East) Ltd v should be clear. Minister for Pensions and National Insurance Facilities provided by the employer should be (1968) QB. clearly communicated and the costs should be Regina vs. Walker (1958) L.J.M.C. borne by the employer.

The employer should have the duty of care towards the health and safety, welfare and AUTH OR BIOGRAPHIES other related aspect. Remuneration should be expressly agreed upon by the both parties. It is suggested to follow the guidelines provided by the ILO’s Home Work Recommendation (R184) of 1996, apart from other international standards to create a proper legal mechanism to cover WFH in order to protect the interests of all the parties in the industrial relations. Authors are senior lecturers of Faculty of Law, References General Sir John Kotelawala Defence University. Both have completed their Bachelor of Laws

Degree from University of Colombo and both Carucci, R., 2020. How to Manage an Employee are Attorneys at Law. who is stuggling to Perform Remotely. Harvard NKK Mudalige has completed the LLM Degree Business Review, pp. 2-6. from General Sir John Kotelawala Defence Dingel, J. B. & Neiman, 2020. How Many Jobs University and Masters in Labour Relations and Can be Done at Home?. Working Paper 26948. Human Resource Management from University of Colombo. She is currently reading for the International Labour Organization , 2020. Mphil/PhD Degree at the University of COVID-19 and the World of Work: Impact and Colombo. Her research interests are labour law Policy Responses, s.l.: ILO. and enviormental law. International Labour Organization, 2020. AA Edirisinghe has completed the LLM Degree Defining and measuring remote work, telework, from University of West London (UK) and MPhil work at home and home based work, Geneva: Degree from University of Colombo. She is an International Labour Organization. enthusiastic researcher in Environmental Law, International Labour Organization, 2020. Animal Welfare and Labour Law. Working From Home, Geneva: International

Labour Organization. International Labour Organization, 2020. Working from Home: Estimating the worldwide

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A Critique of Available Remedies for Industrial Disputes Arising out of COVID-19: A Comparative Analysis

HGS Rosairo# and HD Jayaweera

Faculty of Law, General Sir John Kotelawala Defence University

#[email protected] Abstract- The recent pandemic due to COVID- Keywords- Contract of Employment, 19 has affected the whole world at large. Aside Unforeseeable Circumstances, Industrial from the obvious health issues arising from Disputes, COVID-19, Emergency Regulations COVID-19, there is also another less obvious INTRODUCTION issue; unemployment. Sri Lanka initiated curfews on 20th March 2020, a week after the With the drastic loss of businesses, many first confirmed patient was discovered. This employers were forced to cull their workforce was followed by almost two months of to significantly lesser numbers in order to meet continuous curfews, with the announcement of quarantine standards as well as ensure that the businesses partially re-opening close to mid- business makes ends meet. May. This clearly amounts to almost two entire With this aforementioned situation, many months that businesses in Sri Lanka were not industrial disputes (“ID”) arose, and continue to allowed to operate, except those deemed arise, which fall within the definition of an ID essential commodities. This has resulted in a given within the Industrial Disputes Act vast array of Industrial Disputes. A key example (Industrial Disputes Act No. 43 of 1950) would be workers being laid off in many (hereafter “IDA”). businesses, simply because there is no revenue The justifications for the restriction of this work to pay salaries. This work is a doctrinal and purely to industrial disputes which occur due to library research of a qualitative nature, and, unforeseeable circumstances arising from shall consider the just and equitable remedying COVID-19 are as follows; firstly, it being the of Industrial Disputes arising out of COVID-19, latest such unforeseeable circumstance to affect as an unforeseeable circumstance. Therefore, Sri Lanka on a nationwide level. Secondly, the the goals of this work are, firstly; to verify global impact of the said pandemic. Thirdly, the whether the ADR methods award more just and implicationsandimpactsofCOVID-19 equitable reliefs rather than general courts. particularly to industries on a global scale. Secondly, to discover whether the ADR methods Fourthly, the extended duration of inability to are the sole alternative to address the perform industrial functions due to the said aforementioned issue. An important question to pandemic. Fifthly, the primary as well as answer in this context is whether the ADR secondary effects of industrial breakdowns methods prescribed by the Industrial Disputes arising from COVID-19. Act No. 43 of 1950, namely Labour Tribunals (“LT”), Industrial Courts (“IC”) and Arbitration This work shall analyse the IDR processes continue to fulfil the aforesaid within the IDA, namely LT, IC and Arbitration, purposearisingfromunforeseeable in contrast to the ordinary litigation processes circumstances. The authors firmly believe that of Sri Lanka with the ultimate objective of the yield of this work will be instrumental for discovery/ settling the question of whether the responsible policy-making authorities to better IDR processes are competent to grant equitable discern the best legal approach to remedy reliefarisingduetounforeseeable circumstances, labour disputes arising out of similar namely grievances arising due to COVID-19 in unforeseen circumstances in the future. contrast to the ordinary litigation process of SL.

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Therefore, the goals of this work are, firstly; A frustration of a contract was defined within whether the Alternative Dispute Resolution Davis Contractors Ltd v. Fareham Urban District (“ADR”) methods award more just and Council. The facts of this judgement are, in brief, equitable reliefs rather than general courts. that the appellants contracted to build houses Secondly, to discover whether the ADR methods for the respondents. However, due to the arethesolealternativetoaddressthe shortage in labour and material (due to the aforementioned issue. Suez Canal conflict in which the UK was involved) the contract took longer to complete, It is noteworthy that although this work as well as being more expensive than that addressed the presumption that the IDR anticipated within the aforesaid contract. The process awards greater justice and equity in court held that the contract was not frustrated, comparison to ordinary litigation within the since the fact that a contract becomes difficult initial portion, it is a necessity to examine to perform is not sufficient to prove frustration whether in the present context, the (Davis Contractors Ltd v. Fareham Urban aforementioned presumption prevails true. District Council, [1956]). Furthermore, in the event that the aforementioned presumption is disproved, this It was declared in the aforesaid judgement that work tests whether an alternative method exist, “frustration occurs whenever the law which is capable enough to cater for resolution recognises that without default of either party a of an industrial dispute with justice and equity contractual obligation has become incapable of in light of the present context, namely industrial being performed because the circumstances in disputes occurring due to unforeseen which performance is called for would render it circumstances arising out of COVID-19. a thing radically different from that which was undertaken by the contract” (Ellis, 2020). In Research Problem essence, from the point of view of the party Whether the IC, LT and Arbitration processes moving for frustration; Non haec in foedera are competent to remedy industrial disputes veni; ‘it was not this that I promised to do’ arising due to unforeseeable circumstances; (Davis Contractors Ltd v Fareham Urban namely grievances due to COVID-19, in contrast District Council: HL 19 Apr 1956 - swarb.co.uk, to the ordinary judicial process? 2019). THE SITUATION OF THE ORDINARY COURTS The central aspect of this principle is what IN RELATION TO INDUSTRIAL DISPUTES constitutes‘radicallydifferent’.Inthe DURING THE COVID-19 PANDEMIC TIME aforementionedjudgement,LordReid The ordinary courts are bound to a great extent determined the test of ‘radically different’ to be to apply positivistic approaches to legal issues. considered as follows; the contract must change In this context, if a valid contract exists between in the obligation undertaken to the extent that the parties of the dispute, the ordinary courts the performance is different from the obligation would be compelled to follow such contract. contracted for, and contain a significant change in circumstances of performance (Ellis, 2020). As mentioned above, the COVID-19 pandemic has left many employees incapable of The danger this causes is the result of a performing the obligations under the contract frustration of contract; if frustration of contract of service. However, the pursuance of litigation is proved before courts, the contract of service by an employee for an industrial dispute carries of an employee could potentially be terminated, the risk of void of contract via frustration. The which is the opposite of the outcome that the effect of frustration is to discharge the parties employee seeks by pursuing litigation (to from all future obligations (Is your contract preserve the contract of service). frustrated2020).

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The relationship between an employer and process, this discretion may enable him to allow employee contains a vast power difference, in them to do so. which the employee holds significantly less In Aislaby Estate v Weerasekara case, it was power than the employer (bargaining power). held that, should the minister, at a later date, In addition to this, the situation generated by decide that a certain industrial dispute should unforeseen circumstances such as COVID-19 be referred to arbitration, he may do so. It was increase this power gap, by which the employee held further that the mere fact that he has is in some instances unable to perform his refused to exercise his power does not mean contractual obligations. In this context, if the that he has exhausted his power for a later employee was to seek remedy for an ID via the stage (Aislaby Estate v Weerasekara, [1973]). ordinary judicial process, the ordinary courts, by the threat of frustration of contract, It was again held in Wimalasena v Navaratne & pressurise the employee even more than the Two Others that the minister also has power to contract of service already does. This refer a dispute for settlement even though an significantly reduces the chance of the inquiry was pending in the for employee obtaining relief which is due, and is the same dispute (Wimalasena v Navaratne & clearly a significant restriction to the goal of Two Others, [1979]). achieving justice and equity. Upon analysis of the above powers of the It is therefore clear that an employee with a Minster of Labour, it may seem that he has a valid contract of service is not likely to be considerable power to interfere in the successful in obtaining a just and equitable industrial dispute settlement process. However, remedy via the ordinary courts of the land, he is bound to do so within the constraints of especially in unforeseen circumstances such as justice and equity. This is especially applicable COVID-19. Therefore, this work will now to the plethora of ID arising out of the COVID-19 address the assurances within the IDR crisis.The aforementioned crisis has resulted in mechanism, which greatly increase the ability of large numbers of persons aggrieved from just and equitable relief, in contrast to the similar situations. In this situation, the Minister aforementioned litigation method. is bestowed with the unique ability to use aforementioned discretion to streamline the

process (e.g. where feasible, refer parties to THE USE OF JUST AND EQUITABLE conciliation) and prevent congestion of the both PRINCIPLES WITHIN THE INDUSTRIAL the IDR process and court logs. DISPUTE RESOLUTION PROCESS TO Therefore, it can be said that, the ultimate goal MITIGATE THE RIGIDITY OF THE ORDINARY of just and equitable principles is better LITIGATION, IN RELATION TO COVID-19 facilitated by the powers of the Minister. SITUATION JUSTICE AND EQUITY IN ARBITRATION

Section 3(1) (d) of the IDA1 states that the THE MINISTER’S ROLE AND ITS EQUITABLE Commissioner of Labour is empowered to refer NATURE any dispute of an industrial nature for The reference to compulsory arbitration by the minister is a decision subject to administrative 1 "if the parties to the industrial dispute or their representative consent, refer that discretion. This is evident in the wording of dispute, by an order in writing, for settlement by Section 4(1) ["the minister may..."]. This would arbitration to an arbitrator nominated jointly by such parties or representatives, or in entail that if the minister is of the opinion that the absence of the parties are capable of settling the dispute such nomination, to an arbitrator or body of arbitrators via conciliation, without a lengthy arbitration appointed by the Commissioner or to a labour tribunal".

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law settlement via arbitration (Industrial Disputes terms of a contract he/she has entered3 Act No. 43 of 1950). Section 4(1) of the IDA2 (Industrial Disputes Act No. 43 of 1950). This details the power vested in the Minister of becomes a specialty when considered in light of Labour to refer any dispute to an arbitrator or the fact that the ordinary courts can only labour tribunal (ibid). enforce existing legal and contractual obligations and rights and duties, unless such There is a significant difference between the terms are determined by the court to be harsh two forms of arbitration. Regarding compulsory and unreasonable. Arbitration, it is noteworthy that parties of a dispute can only be entered into compulsory Therefore, although the ordinary courts are arbitration by the Minister’s authority only if restricted to consider equitable principles only there is a dispute actually existing, and not for in the event that the terms of a contract are additional matters apprehended by the Minister harsh and unreasonable, the LT is kept free to be resolved. In the context of a crisis such as from such restrictions, and can better consider COVID-19, as well as proximity of the election, the point of view of the workman in order to the Minister is left considerably vulnerable to grant relief that best meets equitable principles influences.However,concernoversuch required in a crisis such as COVID-19. influencesisunfounded,sincethe Another special attribute is the binding upon aforementioned distinction acts as a barrier to the LT to hear every material in question. creating imagined disputes/ disputes fabricated Failure to do so will be considered an error in with ulterior motives, and thereby ensure law. Furthermore, the LTs are bound to make justice and equity. all inquiries and hear all evidence as they It is noteworthy that the role of arbitrators is consider necessary4 (Industrial Disputes Act No. not identical to that of judges of the ordinary 43 of 1950). This duty of the LT raises an issue courts. The arbitrators will inevitably use their as to whether the labour tribunals are in fact a own inherent beliefs of justice in line with their judicial body. It has been established by both own morality in giving awards. Such humane Walker Sons and Company Ltd v Fry5 and U.C. and moral consideration is especially vital in Panadura v Cooray6 that although an resolving ID arising from unforeseen employee's plea must be heard by a LT with circumstances such as COVID-19. Therefore, sympathy and understanding, the tribunal must they can go beyond established legal principles nevertheless act judicially (Walker Sons and and common law principles used in the Company Ltd v Fry, [1967]) (U.C. Panadura v ordinary courts of Sri Lanka to give more just Cooray, [1971]). This is a stark contrast and equitable awards, compared to the rigid between ordinary courts and the LT, the and positivistic approaches used by common ordinary courts employ a purely positivistic law, as per the present line of argument of this approach, but the LT remains free to consider work. other aspects such as sympathy and understanding for the grievances, especially in JUSTICE AND EQUITY IN LABOUR situations such as the COVID-19 crisis, wherein TRIBUNALS it is necessary to place heavy emphasis on A specialty of a labour tribunal is their power to humanity and morality, instead of positivistic grant relief to a workman beyond the agreed approaches.

2 "the Minister may, if he is of the opinion that an industrial dispute is a minor dispute, refer it, by an order in writing, for settlement by 3 Section 31B(4), Industrial Disputes Act No. 43 of 1950 arbitration to an arbitrator appointed by the (as amended) Minister or to a labour tribunal, notwithstanding that the 4 Section 31C(1), Industrial Disputes Act No. 43 of 1950 parties to such dispute or their 5(1967) 70 N.L.R 71 representatives do not consent to such reference". 6(1971) 66 N.L.R. 14

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JUSTICE AND EQUITY IN INDUSTRIAL Therefore, another assurance of justice and COURTS equity is present to the parties of an industrial dispute. In thecontextoftheCOVID-19crisis,the There is a stark contrast between the ordinary aforementioned ability to refuse a hearing is a courts and the IC in terms of the ability to risk run by parties which are aggrieved by refuse a hearing, and lack thereof, respectively. industrial disputes. This was addressed in the judgement of The Shell Company of Ceylon Ltd V. H. D. Perera7, However, the inability of IC to refuse as wherein it was held that the Industrial Court aforementioned, ensures the performance of has no inherent absolute jurisdiction due to the justice. fact that it derives its jurisdiction from the One of the most significant is the fact that an order of reference made by the government award by an IC cannot be repudiated. It is (through the minister) and therefore it does not possible for any party to apply to the minister have the power to ignore the order of reference to set the award aside or replace it with a (The Shell Company of Ceylon Ltd V. H. D. modification of terms and conditions9 Perera). (Industrial Disputes Act No.43 of 1950). It is clear that if those who hear a dispute are However, once the minister receives such an also vested with the ability to refuse a hearing appeal, he can only refer it again to another for a dispute, the objective of justice and equity (new) IC for consideration. is defeated. This is apparent, for an example, The revisionary jurisdiction of the IC in the within the Supreme Court. According to the above aspect is very much limited. The IC has 4 Constitution of Sri Lanka8, the SC has the options in such a situation10. It may either aforementioned power to refuse a hearing for a confirm the award, set aside the award, replace breach (or imminent breach) of fundamental the award with another, or modify the award to rights occurring within an industrial dispute better reflect the principles of justice and equity arising out of COVID-19, if the 30-day limit from (Industrial Disputes Act No. 43 of 1950). the date of knowledge of the breach (or imminent breach) is exceeded (Constitution of What is worthy of recognition herein is the fact the Democratic Socialist Republic of Sri Lanka). that the minister has no arbitrary power or In such an instance, the aggrieved party simply right to affect the decision of an IC. The most he loses the ability to have it grievances heard and could do is to, in a way, request the IC to re- remedied. If the IC is also permitted to consider the decision. This is an important step determine whether the dispute is heard, the in the process, and it ensures to a great extent aforementioned goal of justice and equity is that justice and equity is carried out in the ICs. once again perished. It can be said that the LT, The option to re-consider is a benefit for the IC and Arbitral Tribunals are in existence purely offended party to seek equity, and uses the to prevent the possibility of a miscarriage of principle ‘those who ask for equity must have justice and equity mentioned above (if LT, IC or acted equitably’. This is evident in the context of Arbitration were also empowered to refuse a COVID-19; an employee who is ideally to be hearing similarly to the ordinary courts, there present at his place of employment cannot be would in fact be no use for them). Therefore, reasonably expected to violate the curfew rules the judgement in The Shell Company of Ceylon by being present at his place of employment. Ltd V. H. D. Perera, aligns with the above Therefore, he has in fact acted equitably as per argument to meet the ends of justice and equity. his contract of employment in this particular

7 70 N.L.R. 108 8 Article 126 (2), Constitution of the Democratic Socialist 9 Section 27, Industrial Disputes Act No.43 of 1950 Republic of Sri Lanka 10 Section 28(1), Industrial Disputes Act No. 43 of 1950

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law situation, even if the only equitable act expected once again contribute to the impracticality of is to do absolutely nothing. the arbitration process, especially in light of the special circumstance arising out of the COVID- IN FACT: THE LIKELYHOOD OF IDR BEING 19 pandemic. IMPRACTICAL IN THE PRESENT CONTEXT In such a situation, the saturation of the IDR The aforementioned facts present that the IDR process would render it unable to fulfil the methods are in fact favourable in comparison to goals of justice and equity in an ideal manner. the ordinary litigation process, in consideration Therefore, this work argues that the alternative of the particulars of the issue. However, due the methods addressed hereafter would present the pressing need of circumstances, it is possible ideal solutions to the objective of fulfilling the that the IDR, once again, may not be the ideal principles of justice and equity in the resolution solution to further cater for practical issues ofIDoccurringduetounforeseeable arising, in terms of labour disputes, from the circumstances such as COVID-19. COVID-19 situation. ALTERNATIVE SOLUTIONS OTHER THAN IDR Individual analysis of each such dispute would AND OC TO ISSUES DUE TO UNFORSEEABLE result in a significantly longer period of time for CIRCUMSTANCES CREATED BY COVID-19 parties to obtain relief, in such an unforeseeable situation. For example, as aforementioned As aforementioned, there is a clear potential for under 4.1, the equitable role of the Minster, a lack of proper equity by the ordinary courts although commendable, is not the optimum due to its positivistic limitations, in the context solution to the issue due to the overburdening oftheaforementionedsituationof unforeseeable of the Ministry by reference of such disputes. circumstances. It is also clear by the arguments raised above that the IDR methods are one Although the role of the Minster in the IDR remedy to the issue, as it was seemingly process, as well as the powers and mechanisms intended by the IDA. However, there is another of the LT, IC and Arbitration proceedings would potential remedy for the situation, and one that ordinarily greatly increase the ability to gain carries a greater assurance of equity to those just and equitable relief, it is possible that the aggrieved by such unforeseeable circumstances. sheer volume of such ID due to the unforeseen That potential remedy is simply to enact circumstances arising out of the COVID-19 legislation which would remedy the issue. pandemic, the time taken for each and every However, as addressed hereafter, this raises an aggrieved party to obtain just and equitable issue as to whether enactment of a new relief would increase by tremendous amounts. legislation is a practical approach. The arbitration process is such that certain facts THE RIGORS OF ENACTING LEGISLATION TO which would be inadmissible in ordinary REMEDYTHESITUATIONUSINGTHE litigation are admissible in an arbitration ORDINARYPROCESSOFLEGISLATIVE proceeding11 (Allen, n.d.). Therefore, although ENACTMENT such rules of evidence would greatly increase the possibility of equity, the requirement of The ordinary legislative process for an scrupulous examination of a comparatively enactment of an Ordinary Bill, followed by the greater amount of evidence would greatly Legislature of SL, is briefly as follows; lengthen the arbitration process, which would After 14 days from the date of publication of the Bill in the Gazette12 (Constitution of the 11 R. Clayton Allen, ‘Arbitration: Advantages and Democratic Socialist Republic of Sri Lanka), a Disadvantages’ (Allen & Allen) < https://www.allenandallen.com/arbitration-advantages- Bill is placed in the Order Paper for the First asnd-disadvantages/#:~:text=in%20your%20browser.- ,Disadvantages%20of%20Arbitration,is%20an%20errone 12 Article 18, Constitution of the Democratic Socialist ous%20arbitration%20decision.> accessed 2 July 2020 Republic of Sri Lanka, 1978

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Reading. After the Bill is introduced, it is the pandemic. Therefore, it can be expected that printed by Parliament and referred to a sectoral the debate conducted upon such a Bill, in oversight committee13 (, accordance with Standing Order 56, may raise n.d.). This is followed by the Second Reading, many issues to be discussed which, when within seven days from the aforementioned Fist coupled with the potential feedback from the Reading. A debate shall be conducted on the populace, may considerably increase the time Bill14 (Parliament of Sri Lanka, n.d.) at the end of taken for the Bill to obtain enactment. which the Bill shall be passed by a vote15 Therefore, it is clear that due to the time (Parliament of Sri Lanka, n.d.).. At this stage, the constraints, the approach of ordinary legislation bill shall be referred to a committee of the is apparently not the ideal solution. whole Parliament (or to a select committee or On the other hand, there may be negative to a legislative standing committee)16 repercussionsofanActbeingpassed (Parliament of Sri Lanka, n.d.) Following this, expeditiously, without the proper necessary when the committee of the whole Parliament consideration. Such an Act would be rigid, and has considered the Bill, the Chair shall report not possess the flexibility to deal equitably with the Bill along with any amendments that were the industrial disputes which may arise at the made17 (Parliament of Sri Lanka - Government time of enactment, as well as in the very near Bills, 2018). future, due to COVID-19, during the attempts of This is followed by a Third Reading upon a the State to return to the norm. motion made, and a vote of taken upon it. One solution to an Act being rigid and inflexible Approval is then sought for the entire Bill. The to suit the dynamic requirements of a Bill then becomes law, upon receiving the legislation would be amending the said endorsement of the Speaker18 (Constitution of legislation, as has been done in many instances. the Democratic Socialist Republic of Sri Lanka, However, this would once again give rise to the 1978). same issue Although the average time taken for a aforementioned,namelythattheproper legislation to be enacted would approximately consideration and debates arising therein be within several weeks, the gathering of the would consume a copious amount of time. Parliament is further delayed due to the Therefore, in light of the above arguments, it is nationwide precautions taken due to the abundantly clear that the enactment of an COVID-19 pandemic. Therefore, it can be ordinary legislation does not meet the criteria reasonably expected that the time taken for an of speed and versatility that is required to enactment of ordinary legislation would be provide equitable relief to both existing as well significantly greater. Therefore, with the as imminent industrial disputes arising from requirement of immediate relief such as in the the unforeseen COVID-19 situation. Therefore, particular context, the enactment of ordinary this work shall hereafter seek a more practical legislation would not be the practical solution. remedy to the aforesaid lacuna of law in respect Furthermore, many Ministries are experiencing of ID in an unforeseeable circumstance. a wide variety of unique industrial issues due to RECOMMENDATIONS

13 As per Standing Order 50(2) In an unforeseen situation such as COVID-19, 14 Standing Order 56 the ideal method to enact legislations in a 15 Standing Order 47 16 Standing order 57 relatively expeditious manner, to fulfil the goals 17 ‘Government Bills’ (Parliament of Sri Lanka, 25th April of justice and equity, is the enactment via 2018) < https://www.parliament.lk/en/how-parliament- Emergency Regulations. works/government-bills> accessed 3rd July 2020 18 Article 80, Constitution of the Democratic Socialist Republic of Sri Lanka, 1978

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The COVID-19 pandemic hit Sri Lanka at a The power given to the President via the PSO critical weak instance of the legislative indeed enables for the swift enactment of framework. Specifically, the time between a legislation, which is especially required in a Presidential Election and the corresponding situationwhereintheParliamentlies temporarily Parliamentary Election. Therefore, due to the dormant. Therefore, the President may enact COVID-19 pandemic, there had been a legislation with the advice of the Ministries constitutional crisis regarding the date of upon the pressing concerns arising due to the parliamentary elections, and as of the moment COVID-19 situation relating to ID, with the of creation of this work, a date has been fixed flexibility and versatility for just and equitable for the election. However, it can be expected redress required for the present issue, that the time taken for an enactment of especially in a situation where the power of legislation will be extended significantly until Parliament is problematic. such new Parliament establishes its power. CONCLUSIONS Therefore, this is another reason for which the ordinary legislative process is impractical, in This work addressed the limitations of the such a context, for the required need. This is a ordinary litigation process in the context of time at which the President has been appointed, industrial disputes arising out of contracts of but the Parliament lies dormant in its ordinary service, occurring due to the COVID-19 functions. In such situations, the Presidential pandemic in Sri Lanka. Powers by virtue of the Emergency Regulations This work emphasized the potential are the best bet at justice and equity. disadvantages within the ordinary litigation The president is vested by the aforesaid power process, such as frustration of contract, as well tolegislatebythePublicSecurity as the comparatively higher potential of just Ordinance19(hereafter “PSO”). The PSO declares and equitable relief within the IDR process. the justifying threshold of such regulation to be However, as aforementioned, there are inherent appearance to the President as necessary or impracticalities arising from this ordinarily far expedient in the interest of public security and more equitable process, such as over-burdening inter alia, for the preservation of public order in of the IDR process, which condemns the IDR the community, as well as for the maintenance methods from being ideal solutions for of supplies essential to the life of the addressing the issues at hand. community20 (Public Security Ordinance No. 25 Furthermore, this work addressed relative of 1947). temporary unavailable nature of the Parliament Furthermore, among the areas regarding which in order to enact legislation to remedy such the President may exercise such power, explicit issues, due to the critical transition period, reference is made to amending, suspending namely the period between the assumption of operation, or applying any law21 (Public office of a President and the corresponding Security Ordinance No. 25 of 1947). In addition, election of the Parliament. Regardless of the such regulations are given immunity from the above, this work also addressed the judiciary within the PSO itself22 (Public Security impracticality of the process of ordinary Ordinance No. 25 of 1947). legislation for the proper settlement of the issues at hand in such a context as COVID-19 pandemic. 19 Public Security Ordinance No. 25 of 1947 (as amended) 20 Section 5, Public Security Ordinance No. 25 of 1947 (as Thereby, in light of the above facts and amended) arguments, this work argues in favour of the 21 Section 5(2)(d), Public Security Ordinance No. 25 of Emergency Regulations, in order to enact such a 1947 (as amended) 22 Section 8, Public Security Ordinance No. 25 of 1947 (as law which would demonstrate the versatility amended)

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law coupled with expediency required to address [Accessed 1 July 2020]. such as the context of the situation addressed Ellis, L., 2020. Frustration of Contract: Law, within this work. Discharge & Consequences | Solicitors London. This work presents the stance that, in the event [online] Hall Ellis Solicitors. Available at: of an unforeseeable situation during which the [Accessed 1 July 2020]. prescribed within this work, namely the path of Industrial Disputes Act No. 43 of 1950. 48. Emergency Regulations, rather than the other methods considered in this work, contain the Industrial Disputes Act No. 43 of 1950. 48. ideal capacity to cater for the inevitable Industrial Disputes Act No. 43 of 1950. 3(1) (d). industrial disputes arising from such an Industrial Disputes Act No. 43 of 1950. 31B (4). unforeseeable situation. Industrial Disputes Act No.43 of 1950. 27. REFERENCES Industrial Disputes Act No. 43 of 1950. 31C (1). Allen, C., n.d. Arbitration: Advantages and Disadvantages. [online] Allen & Allen. Available Industrial Disputes Act No. 43 of 1950. 28(1). at: Parliament of Sri Lanka, n.d. . %20erroneous%20arbitration%20decision> [Accessed 3 July 2020]. [Accessed 2 July 2020]. Public Security Ordinance No. 25 of 1947. 5. Aislaby Estate v Weerasekara [1973] NLR 77, Public Security Ordinance No. 25 of 1947. p.241. 5(2)(d). Clarke Willmott LLP. 2020. Is Your Contract Public Security Ordinance No. 25 of 1947. 8. Frustrated?[online]Availableat: [Accessed 2 July Fareham Urban District Council: HL 19 Apr 2020]. 1956 - Swarb.Co.Uk. [online] Available at: [Accessed 30 May 2020]. Constitution of the Democratic Socialist The Shell Company of Ceylon Ltd V. H. D. Republic of Sri Lanka. 18. Perera NLR 70, p.108. Constitution of the Democratic Socialist U.C. Panadura v Cooray [1971] NLR 66, p.14. Republic of Sri Lanka, 1978. 80. Walker Sons and Company Ltd v Fry [1967] Davis Contractors Ltd v. Fareham Urban District NLR 70, p.71. Council [1956] AC p.696. Wimalasena v Navaratne & Two Others [1979] Ellis, L., 2020. Frustration of Contract: Law, S.L.R 2, p.10. Discharge & Consequences | Solicitors London. [online] Hall Ellis Solicitors. Available at:

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ACKNOWLEDGEMENTS Victor’s Moot 2018, and the national rounds of Henry Dunant Memorial Moot Court The authors give special acknowledgements to Competition 2019. His research areas include Dr. Chamila Thalagala and Mrs. J.A.D Jayakody Labour Law, Corporate Law, , as well as Mrs. Namudi Mudalige, for their International Humanitarian Law as well as Law invaluable guidance for the completion of this of the Sea. work. The authors further give thanks to all staff of the Faculty of Law, General Sir John H.D. Jayaweera is an undergraduate of the Kotelawala Defence University, as well as our Faculty of Law of General Sir John Kotelawala dear colleagues for their guidance and support Defence University, Ratmalana, Sri Lanka. He is in the completion of this work. currently reading in his fourth academic year. He also holds ‘Visharad (Instrumental-Violin)’ Author Biographies degree from the University of Lucknow, India. He also has achieved the Preliminary Certificate of Business English (BEC) and the ‘Council of Europe Level B1’ achievements from the University of Cambridge in 2013. He holds a Diploma in Accounting and Business by the Association of Accounting Technicians of Sri Lanka (AAT) and is a passed finalist. He is also currently studying in the Operational Level at H.G.S. Rosairo is an undergraduate of the theCharteredInstituteofManagement Faculty of Law of General Sir John Kotelawala Accountants [CIMA(UK)].His research areas Defence University, Ratmalana, Sri Lanka. He is include Corporate law, Constitutional Law, currently reading in his fourth academic year. Administrative Law and Labour Law. His other interests include debating, mooting and sports. He has participated in the Hulftsdorp debates in 2017, as well as the

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Paper ID: 270

Employment Security of Probationary Workers in Sri Lanka: A Comparative Legal Analysis

BAR Ruwanthika Ariyaratna

Department of Legal Studies, The Open University, Sri Lanka

[email protected] Abstract - Employment security is one of the Probationary employees, contract of most important factors which help to create an employment efficientandasatisfactoryworking environment. I. INTRODUCTION Probationary employment is one of the challenging employment types which indicates A contract of employment reflects the rights, uncertain nature of job status in the labour duties and liabilities of the employer as well as relations. Although, the main objective of the the employee (Adikaram, 2009). However, probationary period is to assess the employee’s based on the nature, terms and conditions of suitability for the continuation of employment, the contract, it can be categorized into different some employers misuse probation employment tyjpes of employment. Employees get different by terminating probationers in mala fide. The entitlements according to their employment underlying question is whether the employer categories. Though, in the legal sense, these has sole discretion to terminate a probationary categories or ‘labels’ may have significant employee without assessing him adequately or consequences on employees rights and benefits without giving proper reasons. In the Sri because, employers use such categories to avoid Lankan context, there is no proper legislative and overcome certain statutory obligations guidance to regulate probationary employment (Egalahewa, 2018). and therefore, a series of cases provide different Probationary employment is one of the interpretations with regard to the employer’s controversial employment types which discretion on deciding whether the employee’s indicates uncertain nature of job status in the conduct is satisfactory or not. In contrast, the labour relations. Probationary period is South African legal framework envisages clear considered as a trial period and therefore, it statutory measures to safeguard the raises a question whether the employer has employment security of the probationary unlimited discretion to keep or dismiss a employees against the malafide acts of probationer (De Silva, 1998). This research employers. The South African Labour Relations investigates how Sri Lankan and South African Act in 1995 contains specific provisions in legal frameworks address this issue and finally relating to the duration of probationary period it suggests possible recommendations to and dismissal of probationary employees. enhance the employment security of Therefore, this research aims to analyse the Sri probationary workers in Sri Lanka. LankanandSouthAfricanjurisdictions II. METHODOLOGY comparativelyandsuggestpossible recommendations forSriLankanlaw with This Research is a normative research which regardtothe employment security of the consists of a literature review and a probationary employees. Qualitative research comparative analysis. As primary sources, method has been utilized to achieve the relevant legislative enactments and decided aforementionedresearchobjective. case law have been used. Moreover, textbooks, Keywords— Employment Security, journal articles, web resources and statistical analyses have been referred to as secondary

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law sources to enhance the research. The South uncertain period which is totally depend on the African jurisdiction has been selected for the discretion of the employer. comparative analysis, considering their However, Fernando J in State Distilleries structural similarities to that of the Sri Lankan Corporation v Rupasinghe(1994, 2 SLR 365) legal framework on industrial relations. case stated that, Particularly, the Labour Relations (Amendment) Act No. 12 of 2002 in South “The concept of probation is a period of trial, at Africa has been taken as the main legislative the end of which the employer must judge the example for the comparative study. performance of the probationer; there can be no proper trial of probationer unless the III. RESULTS AND DISCUSSION employer has given him adequate information A .The definition of a probation and instructions, both as to what is expected of him, and as to his shortcomings and how to The definition of a probation is, overcome them…” “a fixed and limited period of time for which an So, it is evident that, the court has emphasized organization employs a new employee in order not only the probationer’s duty, but also toassesshisattitudes,abilitiesand characteristics employer’s obligation to give particular and the amount of interests he shows in his job instructions to the employee during this period so as to enable employer and employee alike to of time. make a final decision on whether he is suitable and whether there is any mutual interest in his B .Sri Lankan Legal Approach on the permanent employment…” (De Silva, 1998) Employment Security of Probationary Workers Thus, generally, the period of probation is fixed In the Sri Lankan context, there is no legislative and limited period of time which is subjected to provision or guidelines for regulating the status the supervision of the employer. Also it is of probationary employments. Also, there is no notable that, the employer has the right to clear provision of the labour laws on the terminate the probationers and the only duration of probationary period in Sri Lanka. exception of this rule is where the employee can The Employment of Trainees (Private sector) prove mala fide of the employer. The status of Act No. 8 of 1978 provides that employers and probationers was recognized by the Indian workers may enter a contract of training for up Court in Venkatacharya v. Mysore Suger Co. Ltd to maximum one year (Adhikaram,2009). This (1956, IILG 46) as “a probationer is not in the provision is not directly relevant for the same position as others in service. He is in a probationary employment. state of suspense attended Therefore, a question arises as to whether a withtheuncertaintyofaninchoate probationer’s services could be terminated arrangements.” As observed by the Sri Lankan before the expiry of the probationary period in court in Richard Piris& Co. v. Jayathunga (Sri Sri Lanka? Usually, a period of probation is set Kantha Law Report, Vol. 1, P 17), the out in the contract of employment for the probationer should satisfy the employer before purpose of enabling the employer to assess the the employer decides to affirm him in his capacity and capability of the workman. So, employment which would place the employer during this ‘period of testing’, except where the under various legal restraints and obligations, contract provides, the probationer should have and any employer should have the right to a right to demonstrate his performance and discontinue a probationer if he does not come skills to satisfy the employer without a risk of up to the expectations of the employer. termination (De Silva, 1998; Egalahewa, 2018). Accordingly, it can be witnessed that, the court However, a series of cases provide evidence for also distinguish the period of probation as an

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law accepting the dismissal of a probationary of the employee if he is not satisfied with the during the contractual period. employee’s work and conduct. If the employer act mala fide, he will be liable for unfair This traditional view has been clearly stressed termination”. Thus, as expressed in the in Richard Piris & Co. v. Jayathunga case. The Jayathunga case the only remedy entitled by Court of Appeal held that “if the employer could the probationer is compensation. have terminated the services of the workman at the end of the term without showing good However, in State Distilleries Corporation v cause, I see no reason why the same provision Rupasinghecasethecourthastakena progressive should not apply he terminated his services approach towards the probationary employees during the period of probation.”. According to (Egalahewa,2018). As per the Fernando J this decision it can be observed that, the court pointed out, considered that the probationer is almost at “If the employer is found wanting in respect of the mercy of the employers’ whims and he has his work, conduct, temperament, compatibility no remedies where he is terminated either with the organization and his fellow employees, before or at the end of his period of probation or any other matter relevant to his employment, (Arulanatham and Dissananyaka, 2010) the employer is entitled to dismiss him. Moosajees Ltd. v. Rasiah(1986, 1 S.L.R. 365)also However, that right is not absolute, unfettered shadowed the Jayathunga case and held that, or unreviewable.Whiletheemployeris “the employer is the sole judge to decide undoubtedly the sole judge as to whether the whether the services of a probationer are probationerhasprovedhimself,yethis subjective satisfactory or not. The employer is not bound decision is liable to limited scrutiny and to show good cause where he terminates the review.” services of a probationer at the end of the term Accordingly, it is noteworthy that, After ten of probation, or even before the expiry of that years from Jayathunga case, the Rupasinghe period.” Therefore, in summary, Rasiah case decision has challenged the traditional emphasizes that, the court can only intervene viewpoint of the court and emphasized that the termination of a probationer, if there was even though the common law recognizes an mala fides. Where there is no allegation of mala absolute right to terminate a probationary fide the court could not intervene the employee, under the Industrial Dispute Act of employer’s decision at all. In 1957 the legislature has restricted the powers CeylonCeramicsCorporationV.Premadasa of employerconsiderably.Therefore,the (1986,1S.L.R. 287 the courthas demonstrated probationary employee now has aright to the same view as “the services of the challengeanunreasonableterminationand probationer can be terminated using the period demandre-instatement(Arulanathamand of his probation if his services are not Dissananyaka, 2010). considered satisfactory. Such termination is not unlawful or unjustifiable provided it is bona Continuation of a probationer after the expiry fide”. of the period of probation is another question which arises in relating to probationary The case University of Sri Lanka v. Ginige employment (De Silva, 1998). In Hettiarachchi (1993,1 SLR 362) decided in 1993 re- V. Vidyalankara University(76 N.L.R. 47)it was emphasizes the dicta in Richard Piris&Co. v. held that, a person appointed to a post on Jayathunga above (Arulanatham and probation cannot claim automatic confirmation Dissananyaka, 2010) . Accordingly, the court on the expiry of the period of probation, unless has upheld the traditional approach and states the letter of appointment provides that the that “during the period of probation the appointee shall stand confirmed in the absence employer has the right to terminate the services of an order to the contrary. If a probationer is

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law allowed to continue on probation after the (a) given the employee appropriate evaluation, period has expired, he continues in service as a instruction, training, guidance or counselling; probationer. However, in Rupasinghe decision and again challenged this traditional approach. As (b) after a reasonable period of time for per the dicta of Fernando J, there is no inflexible improvement, the employee continues to rule providing for the automatic renewal of perform unsatisfactorily. probation and that an inference of renewal can only be drawn in those cases in which the This innovative provision of the South African circumstances justify it. Labour RelationAct isevidentthat,the employees of probation are still employees and the B .South African Legal Approach on the employer is not the sole judge to determine Employment Security of Probationary Workers dismissal of probationers (The South African The significant feature of the South African legal Labour Guide, n d). In Palace Engineering (Pvt) framework is, it has given statutory security for Ltd vs Thulani Ngcobo and Others case the South the probationary employees under the Labour African Labour Appeal Court upheld the status Relations (Amendment) Act No. 12 of 2002 of the guidelines enshrines under the schedule (Baloyi & Crafford, 2006) . According to the 8 as follows; Section 186 of the definition of the term ‘unfair “Reasonsfordismissingprobationary employees labour practices include “unfair conduct by the less onerous but the dismissal must still be for a employer relating to the promotion, demotion, fair reason that passes muster against the entire probation or training of an employee or relating provisions of the item 8 (1) of the Code of Good to the provision of benefits to an employee”. Practice” Moreover, Code of Good Practice – Dismissal, The Act further emphasises that “the procedure contained in Schedule 8 to the Labour Relations leading to dismissal should include an Act specificallyprovidesacomprehensive investigation to establish the reasons for the guidelines for the employment and dismissal of unsatisfactory performance and the employer probationers.Accordingly,theActgives should consider other ways, short of dismissal, discretion on the employer to determine the to remedy the matter. Also, in the process, the length of the probationary period with employee should have the right to be heard and reference to the nature of the job and the time it to be assisted by a trade union representative takes to determinetheemployee’ssuitabilityfor or a fellow employee.” continued employment. Further, during the probationary period an employer should give C. Comparison of Sri Lankan and South an employee reasonable evaluation,instruction, African Approaches. training, guidanceorcounselling in order to After considering the legal background of both allow the employee to render a satisfactory Sri Lankan and South African jurisdictions in service (Baloyi & Crafford, 2006). relating to the job security of probationary Most importantly, the Act provides very clear employees, the researcher has summarised all guidelines for the dismissal of probationers. As the findings in to the following comparative per the Guideline 8 (2) of the Schedule 8 of the table. Act, Table 1. Comparison of Sri Lankan and After probation, an employee should not be South African Approaches dismissed for unsatisfactory performance Key Factors Sri Lanka South Africa unless the employer has- Legislative No legislative Regulatethe Protection protection dismissalof

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for probationary the employers’discretionofterminating probationers employees probationary employees has been changed by throughthe time to time and as a result of this uncertain Labour nature, employers are tending to misuse the relation Act probationary employment. In contrast, South African approach can be illustrated as a Duration of No specific Schedule 8 of progressive way forward because it clearly Probationary provision the Labour makes an obligation on employers to conduct Period Relations Act proper evaluation and give reasons before gives termination of the probationers. discretion on the employer Therefore, in order to enhance the employment to determine security of the probationary workers in Sri the length of Lanka, this paper suggests that the misuse of the probationary employment should be prevented probationary through a statutory intervention in Sri Lanka period similar to the South African approach. Therefore, as a statutory intervention, the Dismissal Depends on Statutorily dismissal of probationary employees without (right to give the Court make an proper evaluation and without giving reasons reason) interpretatio obligation on can be identified as an unfair labour practice. ns. employers to Hence, this paper recommends an amendment Rupasinghe carry an to the Section 32 A of the Industrial Dispute Act decision has appropriate No 43 of 1950 in order to include the unfair taken some evaluation and dismissal of probationary workers as an unfair progressive give reasons labour practice. Then it will be a good move for approach (Guideline 8 employment security of the probationary (2) of the workers in Sri Lanka. Schedule 8 of the Act) REFERENCES Right to be No specific Statutorily Books and Journals heardand provision or provides that Adikaram, A. S. (2009). Labour Law and assisted by a court right Relations: A Human Resource Management tradeunion decision (Guideline 8 Approach (1st ed.). Stamford Lake Publications representativ (4) of the e Schedule 8 of Arulanantham, J., &Dissanayaka, D. (2010). the Act) Contract of employment : cases and commentaries : case book on labour law. S. Scharenguivel (Ed.). Law and Society Trust. IV. CONCLUSION AND RECOMMENDATIONS Baloyi, Z., &Crafford, A. (2006). Problems According to the findings of the comparative surrounding probation in the South African analysis between Sri Lankan and South African public service. SA Journal of Human Resource legal frameworks it is evident that lack of Management, 4(1). proper statutory protection against the https://doi.org/10.4102/sajhrm.v4i1.80 arbitrary conduct of the employers is the major De Silva, S. R. (1998). The Contract of drawback with regard to the employment Employment.TheEmployer'sFederation of security of probationary workers in Sri Lanka. Ceylon. Judicial decisions and interpretations regarding

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Egalahewa, S. (2018). A General Guide to Sri Venkatacharya v. Mysore Suger Co. Ltd (1956, Lanka Labour Law (1st Ed.). Stamford Lake IILG 46) Publication. Author Biography The South African Labour Guide. (n.d.). Your Guide to Labour Law in South Africa | Labour Guide. https://www.labourguide.co.za/ Case Law CeylonCeramicsCorporation V. Premadasa(1986,

1 S.L.R. 287 I’m an attorney-at-Law and a lecturer in law Hettiarachchi V. Vidyalankara University (76 attached to the Department of Legal Studies, N.L.R. 47) The Open University of Sri Lanka. I have done Moosajees Ltd. v. Rasiah(1986, 1 S.L.R. 365) my LL.B Degree in the Faculty of Law, Palace Engineering (Pvt) Ltd vs Thulani Ngcobo University of Colombo in year 2012. Then I and Others completed LL.M in 2017 with a merit pass in the same university. Currently, I’m teaching labour Richard Piris& Co. v. Jayathunga(Sri Kantha Law law for the LL.B students and doing several Report, Vol. 1, P 17) researches i relating to the various aspects of State Distilleries Corporation v Rupasinghe labour law. (1994, 2 SLR 365)

University of Sri Lanka v. Ginige (1993,1 SLR 362)

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Paper ID: 27 Impact of Covid-19 to the National Economy of Sri Lanka: A Comparative Analysis with the United Kingdom on Employees’ Rights

AS Samarakoon, VP Liyanage# and MR Premashantha

General Sir John Kotelawala Defence University

#[email protected] Abstract— Impact of Covid-19 on labour rights Keywords— Covid-19, National Economy, Sri and national economy has become a prominent Lanka issue at present. Therefore, this research aims I. INTRODUCTION at finding out whether there are sufficient laws to secure labour rights in such unforeseeable Sui generis nature of contract of employment in situations. The effect of the lock down in the Sri Lanka promotes the ideals of social justice. country due to the pandemic has caused the Further, the welfare States have intervened to demand shock, supply shock and financial the employer-employee relationships since shock to occur at the same time which has parties do not have equal bargaining power and adversely affected the national economy. The the imbalance of bargaining power will lead to research problem is whether the prevailing exploitation. In Sri Lanka, the private sector is labour legislations are adequate to address the the main contributor to the national economy.1 issues arising out of unexpected situations, Therefore, the private sector has the highest specifically due to Covid-19 while contributing capability of influencing the national economy to the national economy. The objectives of this and the national growth. research are to identify the impact of Covid-19 As aresultoftheCovid-19 pandemic, the national to the national economy and labour rights, economy of SriLanka was highly affected which identify whether the Sri Lankan labour laws are led to the reduction of national growth.2 sufficient to address such issues and to propose Specifically, the Colombo Stock Market necessary amendments to the existing legal washighlyaffectedbythisunforeseeable regime to fill the gaps. The methodology of this pandemic which ultimately resulted in researchisacombinationofBlack-Letter reduction of the national growth leaving both methodologyandComparativeResearch short term and long term issues. Additionally, MethodologywiththeUnitedKingdom. profits of the companies were drastically Moreover,thisresearchwould employ a reduced because of qualitative analysis of primary data including thetemporarysuspensionofbusiness the 1978 Constitution of Sri Lanka, the transactions and therefore many issues relating Industrial Disputes Act No. 43 of 1950, Wages to labour rights have arisen. Here, it should be Boards OrdinanceNo.27of1941,Termination of noted that a balance should be struck between Employment of Workmen Act No.45 of 1971, the interests of both employers and employees Employees’ Provident Fund Act No.15 of 1958, in order to overcome the issues arising out of Employees’ Trust Fund Act No.46 of 1980 and the Gratuity Act No.12 of 1983 and secondary 1Central Bank of Sri Lanka, (2019), Economic and social data including journal articles and web articles. statistics of sri lanka. [online] Statistics Department. Available Finally, the research concludes with a view that at://www.cbsl.gov.lk/sites/default/files/cbslweb_docume the existing industrial laws are insufficient to nts/statistics/otherpub/ess_2019_e.pdf [Accessed 1 June address unforeseeable situations in a way 2020]. 2 Janz, J. (2020). ‘The impact of covid 19 on the sri lankan which would contribute to national economy Economy’[online]pulse.Availableat: and to the national growth. http://www.pulse.lk/everythingelse/the-impact-of-covid- 19-on-the-sri-lankan-economy/ [Accessed 1 June 2020].

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law unforeseeable situations and reduce the the Gratuity Act No. 12 of 1983 and secondary impacts to businesses. Moreover, it would be data including journal articles and web articles. effective to relax the existing labour legislations III. RESULTS AND DISCUSSION to balance theinterestsoftheemployer-employee relationship. A. Impact of labour legislations on national growth Furthermore, it is also significant to note that ILO standards and recommendations have also Labour legislations are the laws authorised by been introduced to cover the Covid-19 the governments for the purpose of providing situation. Hence, workerswhoseemployment is monetary and social equity to the employees in terminated due to the economic impact of businesses. More specifically, these laws Covid-19 or for health and safety issues should provide rules to businesses or industries to be entitled to a severance allowance or other address issues that might arise relating to separation benefits, unemployment insurance wages, E.P.F., benefits or assistance to compensate for the E.T.F,paymentofgratuityandworking conditions loss ofearningsincurredasaresultofthe of labours. termination. Additionally, workers who are As indicated by Mr. V .V. Giri, labour legislation absent from work for the purpose of quarantine is “a provision for equitable distributions of or for undergoing preventive or medical care profits and benefits emerging from industry, and whose salary is suspended should be between individualists and workers and granted a (sickness) cash benefits.3 affording protection to the workers against II. METHODOLOGY AND EXPERIMENTAL harmful effects to their health safety and DESIGN morality”.4 This highlights that a balance should be struck between the interests of employers The research methodology would be a and employees. combinationofBlack-Letter(Doctrinal) MethodologyandaComparative Research Labour legislations are formed upon the Methodology with the United Kingdom. The principles of social justice, social equality, Black-Letter methodology is used to provide a national economy and international uniformity. descriptive analysis on the area. Under the Thus, when considering the above facts the ComparativeResearchMethodology,a importanceoflabourlegislationscanbe identified. comparative analysis between Sri Lanka and In other words, the objectives of labour the United Kingdom will be conducted to legislations can be identified. This includes identify the differences in both jurisdictions improving industrial relations between relating to the industrial law. Further, the employersandemployees,minimizing industrial research would employ a qualitative analysis of disputes, reducing the possibility of workers primary data including the 1978 Constitution, being exploited by employers or management, Industrial disputes Act No.43 of 1950, Wages assisting workers in getting fair wages, Boards OrdinanceNo.27of1941,Terminationof reducing conflicts and strikes, ensuring Employment of Workmen Act No.45 of 1971, jobsecurityforworkers,promoting Employees’ Provident Fund Act No. 15 of 1958, environmental-friendlyconditionsinthe Employees’ Trust Fund Act No.46 of 1980 and industrial system, fixing working hours and also providing compensation to workers who are victims of accidents.

3 International Labour Organization, (2020), ILO Standards andCovid19.[online]Availableat: 4 Chand, S. ‘Necessity and Importance of Labour Law and https://www.ilo.org/wcmsp5/groups/public/--- Principles’.[online]Availableat: ed_norm/--- https://www.yourarticlelibrary.com/law/necessity-and- normes/documents/genericdocument/wcms_739937.pdf importance-of-labour-law-and-principles/34381 [Accessed 4 September 2020]. [Accessed 4 June 2020].

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have a U.K. bank account and who have started a PAYE payroll scheme on or before 28th Labourlawsintroducereasonableness standards February 2020. Moreover, the employees retain in employment contracts to assist in defeating the right to statutory sick pay, unfair dismissal coordinating failures inside the business and rights and rights to redundancy payments. can add to positive efficiency and work impacts Furthermore, the Self Employed Income over the more extensive economy. Support Scheme was introduced to provide Generally,inindustrializedeconomies, grants to self-employed individuals for three legislations introduced mechanisms to reduce months. According to this, self-employed risks in labour market. In the present low-and individuals or employees who are part of middle income nations, labour law reforms can partnerships will receive a grant 80% of their help to construct institutional limits in zones gross average monthly profits. which incorporate social protection, aggregate dealing and debate goals and can add to the Another important grant by the U.K. formalizationofemployment whichisa government is the changes made to Statutory significantadvanceindecreasingfinancial Sick Pay in response to Covid-19. Currently, this instability implying the effect to the national is payable not on a permanent basis. This is growth. payable to employees who have been advised to self-isolate under the guidance of the B. U.K. legal regime on rights of employees government. The Emergency Volunteering pertaining to unforeseeable situations Scheme is also another initiative of the U.K. Due to the consequences of Covid-19 pandemic, government to safeguard rights of employees in industrial law in the U.K. has undergone many Covid-19 situation. This scheme allows changes.5ThisincludesCoronavirusJob Retention employees to take emergency volunteer leave Scheme, Self-Employment Income Support in two to four weeks statutory unpaid leave in Scheme, Changes to statutory sick pay, any period of sixteen weeks and Emergency Volunteering Scheme and changes employeeswhovolunteerthroughan authorized to Off-Payroll Working etc. More importantly, authority will be compensated for U.K. has passed the Coronavirus Act 2020 to lossofearningsduringthisperiod. grant emergency powers to the government to Simultaneously, the employees who have not handle the pandemic.6 The Act gives taken their statutory annual leaves will be discretionary powers to the government to allowed to take it to the next two years with the relax regulations in various sectors as a introduction of the Working Time precautiontolimit the (Coronavirus) (Amendment) Regulations 2020. spreadingofthediseaseincludingnational health Moreover, the employment tribunal service for care services and social care.7 England,WalesandScotlandhasissued guidance The Coronavirus Job Retention Scheme was on conducting tribunals during the Covid-19 introduced by the Coronavirus Act 2020 which pandemic.8 Accordingtoit,ifthe tribunal thinks it indicates the eligibility and entitlements under is just and equitable, hearings it. It applies to all employers in the U.K. who maybeconductedbymeansofelectronic communications to prevent parties from being

interacted with others specifically in the Covid- 5 JDSUPRA (2020). ‘UK Employment Law Changes and Response to Covid-19’. [online] Available at: 19 situation. Sending applications to tribunal https://www.jdsupra.com/legalnews/uk-employment- through electrical means is encouraged since law-changes-and-response-13552/ [Accessed 4 June 2020]. 6Coronavirus Act 2020. United Kingdom. Available 8 CIPD (2020) Recent and Forthcoming Legislation, at:http://www.legislation.gov.uk/ukpga/2020/7/content Available at: s/enacted/data.htm [Accessed 4 June 2020]. https://www.cipd.co.uk/knowledge/fundamentals/emp- 7 ibid law/about/legislation-updates [Accessed 4 June 2020].

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law judges need not to work in the tribunal Moreover, under Section 31E of the Industrial building. Additionally, changes have been made Dispute Act (Part IVB), the Act shall not apply to to statutory rates and compensation limits and workers in a workplace which has less than there is a rise in the national/ minimum wage in fifteenworkmen one month preceding the the U.K. Precisely, limits were imposed relating retrenchment of any workman, or to workmen tocompensationlimitsincludingunfair in businesses which is seasonal in character or dismissalandstatutoryredundancypay, to retrenchment of any workmen who have statutory sick pay and national minimum wage been employed for less than one year in any rates. industry. However, as per Section 31E(2), if the Minister is of the view that an industry is likely Consequently, as a whole when analysing the to affect that industry in a manner as to cause U.K. legal regime on rights of employees serious repercussions to it, the Minister shall relating to unforeseeable situations, specifically either declare that this part shall not be applied Covid-19 situation, it is clear that the U.K. has or shall apply subjected to some conditions. immediately taken many initiatives in response Moreover, according to Section 31F, the to the pandemic to protect rights of employees, employer holds a duty to give notice on at least to a considerable extent. retrenchment to the workmen or the union C. Sri Lankan legal regime on rights of before one month and a copy employees pertaining to unforeseeable shouldbesenttotheCommissioner. situations However,thesesectionsapplyonlyto disciplinary The 1978 Constitution, being the supreme law retrenchment. of the country, recognizes the fundamental right Ontheotherhand,theTermination of of every citizen to ‘freedom to engage by EmploymentofWorkmenAct(hereinafter himself or inassociationwithothersinanylawful referred to as the Termination Act) would be occupation,profession,trade,businessor important to identify the methods of enterprise’ in Article 14(1)(g).9 Further, this is termination of employees in a workplace strengthened by Article 27(2) (a) which states including the rights of employees, specifically that “The state is pledged to establish in Sri with regard to the Covid-19 situation. Lanka a democratic society, the objectives of According to the Act, non-disciplinary which include the full realization of termination occurs in relation to fundamental rights and freedoms of all closureofbusinessandretrenchment.In pursuant persons.”10 Even though according to Article 29, to Section 2(2) (e), the Commissioner may, in none of the provisions (Directive Principles of his absolute discretion, decide the terms and State Policy and Fundamental Duties) is conditions subject to which his approval should enforceable before a court of law or tribunal11 be granted including particular terms and no part of the Constitution can be dismissed as conditions relating to payment by employer to redundant.12 Simultaneously, Article 27(2) (c) the workman of gratuity or compensation for has directed the state to ensure adequate termination of employment. Section 2(4) (a) standard of living to all citizens and continuous also accepts the ability to terminate improvement of living conditions. employment of workmen on non-disciplinary grounds based on temporary(lay 9 The Constitution of the Democratic Socialist Republic of Sri off)orpermanentnon employmentandnon- Lanka1978,C3.Availableat: https://www.parliament.lk/files/pdf/constitution.pdf employmentdueto closure of the business, trade [Accessed 4 June 2020]. or industry. 10 ibid 11 ibid, Article 29. Furthermore, according to Section 6A of the Act, 12 Ravindra GunawardenaKariyawasamv.Central Environment Authority and Others. [2019] (Supreme Court the Commissioner holds power to order an of Sri Lanka).

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law employer to pay compensation to a workman can be categorized into issues under terms and on or before a specified date in consequence to conditions of contract of employment, issues the closure of business. Thus, it could be argued relating to termination of employment and that this section can be utilized as a remedy issues with regard to new forms of available in unexpected and unforeseeable employment. When analysing the issues situations, in particular, the Covid-19 situation. relating to terms and conditions of Consequently, it could be argued that the employment, salary issues, non-contribution of Termination Act has impliedly promoted job EPF and ETF and payment of gratuity issues security in ordinary situations to some extent have arisen. Thus, it is important to identify the but not to completely cover unexpected and legal aspect of these issues. unforeseeable situations. Firstly, there can be contracts in abeyance When analysing the Sri Lankan context, it is where contract is temporarily suspended and important to identify the changes occurred in contracts due to frustration where contract is the stock market on 11th of May 2020 due to terminated due to a reason beyond the control the Covid-19 pandemic which led Sri Lanka to of parties such as the Covid-19 pandemic. Here, experience a halting of trading at the Colombo both the employers and employees are not at Stock Exchange within a few minutes of its fault. Even though frustration is not a part of regular trading time after the lockdown on that the Sri Lankan legal system some argue that the day. It has occurred 5% dip within 10 minutes supervening impossibility of performance has and according to the analysts, the market fell led to the termination of contract.15 Another due to the fear of foreign investors exit from the issue is with regard to the termination of risky assets which directly affected the national services of probationers due to the pandemic by economy.13 As mentioned above, since both reason of the low income of the businesses. local and foreign investors are looking at Thus, another issue arises as to whether an leaving from risky assets due to the global employer is bound to contribute to EPF and ETF pandemic the end result would be the fall of the which is basically calculated on the basis of domestic economy which eventually will affect earnings of the month where the pandemic has the rights of workmen which directly or resulted in low income of businesses. In indirectly connected to listed companies of the addition, Section 5(1) of the Gratuity Act16 and as a whole to the states that an employer who employees fifteen economic growth of Sri Lanka.14 or more workman during twelve months preceding termination of services of workman Additionally, Covid-19 has led to imposition of and workman who has completed five curfews and reduction in demand for exports completed years under the employer shall pay which has resulted in unemployment in Sri gratuity to such workman. However, here a Lanka, especially with regard to small and question arises as to whether what will happen medium businesses and industries. As a result, if there is a break in the services of employees lower pay will be given to employees because of due to absence from work due to the pandemic the low income of these businesses which will because to be entitled for gratuity workman ultimately affect employee rights.

It could be identified that three main labour 15 Law Net. ‘Frustration of Contract (Termination of Service issues have arisen due to the pandemic. This by Operation of Law and Impossibility of Performance) The Legal Consequences’. [online] Available at: https://www.lawnet.gov.lk/1960/12/31/frustration-of- 13 News1st. (2020). The colombo stock market closes contract-termination-of-service-by-operation-of-law-and- within a few minutes of trading. [online]. Available at: impossibility-of-performance-the-legal-consequnces/ https://www.newsfirst.lk/2020/05/11/the-colombo- [Accessed 5 June 2020]. stock-exchange-stops-trading-within-seconds/ [Accessed 16Payment of Gratuity Act 1983, Available at: 5 June 2020]. http://www.mostr.gov.lk/web/images/pdf/acts/payment 14 ibid. _of_gratuty.pdf [Accessed 5 June 2020].

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law should complete a continuous five years period The proposal introduced in Sri Lanka in relation in employment. to the pandemic suggests that employees should notbeterminatedduetothepandemic, When considering the issues relating to employment should be continued with social termination of employment relating to the distance and contributions shall be made to EPF pandemic, employees are terminated on non- and ETF. It is of importance to note that even disciplinary grounds such as closure of the thoughatemporaryproposalhasbeen introduced business,retrenchmentandlay-off.Some in Sri Lanka to address the issues on employee employers may even issue letter of vacation of rights arising due to the Covid-19 pandemic, it post due to absence of workers even if there is does not effectively address all the employee non-availability of curfew passes and non- rights.19 availability of transport facilities to workmen due to the pandemic. The legal aspect of this can On this basis, the necessity to repeal the current becoveredundertheTerminationAct. domesticlegalframeworkwhichprotects AccordingtotheAct,noemployershall terminate workmen rights with a view to the future to the scheduled employment of any workmen face such unexpected situations such as Covid- without the prior consent in writing of the 19 is visible and it should be recognized as a workman or prior written approval of the legal lacuna that should be filled undeniably. Commissioner.17 Further, it is important to note IV. OBSERVATIONS AND RECOMMENDATIONS that employers cannot simply issue a letter of vacation of post to an employee unless the When comparing with the U.K. legal regime, it is employeeisabsentfromworkbeyond a clear that there’s a clear gap in the Sri Lankan reasonable time periodortimeperiod mentioned legal regime with regard to providing recourse in the letter of appointment or employee has to safeguard rights of employees in the intention to abandon the employment. unforeseeable situations, especially with regard to Covid-19 situation which has highly affected On the other hand, the main issue regarding the national economy. Therefore, following new forms of employment such as online recommendations were made in order to workers is whether they can be regarded as effectively address the prevailing gap in the employees. In Uber London Ltd, Uber Britannia existing legal regime of Sri Lanka while Ltd v Mr. Y Aslam, Mr. J Farrar, Mr. R Dawson comparing the both jurisdictions. and Others18 the issue was whether Uber taxi drivers were employees or not where the Court ● When considering the industrial of Appeal of England and Wales held that they relationship between employer and were employees even though they work using employee, it is evident that employees digital technology apps. However, it should be are generally unaware of their labour noted that with regard to the present situation, rights. Hence, it could be suggested that not only the rights and interests of employers an effective mechanism or programme and employees should be considered, but also should be introduced to make the businesses should also be protected. Hence, awareness among employees in a balance of interest should be stuck between businesses or industries by supporting the two. greater social protection while balancing the interests between employers and employees. This could be 17 Termination of Employment of Workman 1971, Available at : http://www.commonlii.org/lk/legis/consol_act/toeow15 19 DailyFT (2020) Ceylon Federation of Labour Fumes over 4449.pdf [Accessed 5 June 2020]. tripartite deal on pro-rate wages during Covid-19, Available 18 Uber London Ltd, Uber Britania Limited v. Mr.Y Aslam, at: http://www.ft.lk/front-page/Ceylon-Federation-of- Mr.J farrar,Mr.R Dawson and Others. [2018] Employment Labour-fumes-over-tripartite-deal-on-pro-rate-wages- Appeal Tribunal Appeal No. UKEAT/0056/17/DA. during-COVID-19/44-700422 [Accessed 6 June 2020].

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achieved by enhancing health and safety unforeseeable situations, because firstly in the work place by adopting therightsofemployersshouldbe occupationalhealthandsafety measures, protected in order to protect the rights adopting work arrangements such as of employees. flexible working hours and by ● To address this issue, at least an online safeguarding rights of the migrant parliament could have been convened to workers. pass a special labour legislation which is also to be applicable retrospectively based on the concept that prevention is ● In Sri Lanka, there are many labour better than cure. legislations to address issues relating to industrial relations in various aspects. V. CONCLUSION However, when analysing the Sri The study reveals that the existing industrial Lankan context it is clear that there is laws are not sufficient to address the issues no single labour legislation to address relating to rights of employees in unforeseeable the rights of employees arising out of situations including Covid-19 in a way which unforeseeable situations.Thus,itcouldbe would contribute to the national economy and recommended that a new legislation be national growth. In Sri Lanka, even though a passed to protect the rights of both the proposal has been introduced as a remedy to employerandemployeesin address employee rights, it has failed to address unforeseeable situations, specifically many employment issues within the practical with regard to the wages and to secure context. the retirement benefits of the private sector. Thus, it would be effective to Therefore, as a whole when analysing the above include a provision on providing facts it is clear that there are many unaddressed employees with paid sick leave for issues that have arisen due to the Covid-19 employees of covered employment pandemic which should be addressed promptly including duration of the leave and in order to protect employee rights while calculation of pay which is to be balancing the interests of employers and effective fromaspecificeffectivedate. employees. Hence, it would be effective to relax Additionally, it should include an labour legislations to effectively address these interpretationclausewithoutany issues. ambiguities.Itshouldcoverthe REFERENCES definitions of ‘covered employees’ to be Central Bank of Sri Lanka, (2019), Economic and applicable to both public and private social statistics of sri lanka. [online] Statistics sector and ‘eligible employees’ to be Department.Available applicable to all employees of covered at://www.cbsl.gov.lk/sites/default/files/cbslw employment. eb_documents/statistics/otherpub/ess_2019_e. pdf [Accessed 1 June 2020]. ● Due to the Covid-19 pandemic, it was Chand, S. ‘Necessity and Importance of Labour identifiedthatthereweremany violations Law and Principles’. [online] Available at: of employee rights specifically https://www.yourarticlelibrary.com/law/nece duetonon-disciplinary termination, ssity-and-importance-of-labour-law-and- whichviolatesemployeerights. principles/34381 [Accessed 4 June 2020]. Therefore, it could be suggested that the CIPD (2020) Recent and Forthcoming existing legal regime on industrial law Legislation, Availableat: shouldberelaxedtoinclude

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law https://www.cipd.co.uk/knowledge/fundamen Ravindra Gunawardena Kariyawasam v. Central tals/emp-law/about/legislation-updates Environment Authority and Others. [2019] [Accessed 4 June 2020]. (Supreme Court of Sri Lanka). Coronavirus Act 2020. United Kingdom. Termination of Employment of Workman 1971, Available at: Available http://www.legislation.gov.uk/ukpga/2020/7/ at:http://www.commonlii.org/lk/legis/consol_ contents/enacted/data.htm [Accessed 4 June act/toeow154449.pdf [Accessed 5 June 2020]. 2020]. The Constitution of the Democratic Socialist DailyFT (2020) Ceylon Federation of Labour Republic of Sri Lanka 1978, C3. Available at: Fumes over tripartite deal on pro-rate wages https://www.parliament.lk/files/pdf/constituti duringCovid-19,Availableat: on.pdf [Accessed 4 June 2020]. http://www.ft.lk/front-page/Ceylon- The Constitution of the Democratic Socialist Federation-of-Labour-fumes-over-tripartite- Republic of Sri Lanka 1978, C6. Article 27(2)(a). deal-on-pro-rate-wages-during-COVID-19/44- Available at: 700422 [Accessed 6 June 2020]. https://www.parliament.lk/files/pdf/constituti Janz, J. (2020). ‘The impact of covid 19 on the sri on.pdf [Accessed 4 June 2020]. lankan Economy’ [online] pulse. Available at: Uber London Ltd, Uber Britania Limited v. Mr.Y http://www.pulse.lk/everythingelse/the- Aslam, Mr.J farrar,Mr.R Dawson and Others. impact-of-covid-19-on-the-sri-lankan- [2018] Employment Appeal Tribunal Appeal economy/ [Accessed 1 June 2020]. No. UKEAT/0056/17/DA. JDSUPRA (2020). ‘UK Employment Law Changes ACKNOWLEDGEMENT and Response to Covid-19’. [online] Available at: https://www.jdsupra.com/legalnews/uk- We would like to extend our sincere gratitude employment-law-changes-and-response- to our parents who assisted us in successful 13552/ [Accessed 4 June 2020]. completion of this research. Law Net. ‘Frustration of Contract (Termination AUTHOR BIOGRAPHIES of Service by Operation of Law and Impossibility of Performance) The Legal Consequences’. [online] Available at: https://www.lawnet.gov.lk/1960/12/31/frustr ation-of-contract-termination-of-service-by- operation-of-law-and-impossibility-of- performance-the-legal-consequnces/ [Accessed

5 June 2020]. A.S. Samarakoon is a LL.B. graduate of General News1st. (2020). The colombo stock market Sir John Kotelawala Defence University and closes within a few minutes of trading. [online]. currently studies as a preliminary year student Available at: at the Sri Lanka Law College. Her research areas https://www.newsfirst.lk/2020/05/11/the- are Commercial Law, Criminal Law and Labour colombo-stock-exchange-stops-trading-within- Law. seconds/ [Accessed 5 June 2020]. Vishna Pulnadie Liyanage completed the LL.B. Payment of Gratuity Act 1983, Available at: degree at General Sir John Kotelawala Defence http://www.mostr.gov.lk/web/images/pdf/act University. She is a preliminary year student of s/payment_of_gratuty.pdf [Accessed 5 June the Sri Lanka Law College. Her research 2020].

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law interests include Environmental Law, Criminal Intermediate year student at Sri Lanka Law Law and Constitutional Law. College. His current research interests include Criminal law and Constitutional Law and MR Premashantha completed his LL.B. degree Labour law. from General Sir John Kotelawala Defence University in 2020 and currently studies as an

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Technical Session IV: Session Summary Session Theme: Role of Law in Pursuit of Justice

Session Chair: Shavindra Fernando, PC

Theme of the technical session IV which was the Seondly, Geethani Jeewanthi presented her final session of the day 02 was ‘Role of Law in research on food advertising that leads to Pursuit of Justice’. It was chaied by Shavindra childhood obeysity. Title of her research was Fernando, PC. Rear Admiral (Retd.) Shavindra ‘Regulating Food Advertisement in Sri Lanka Fernando PC holds a Master of Laws in Public and Curbing Childhood Obesity: The Way InternationalLawfromtheUniversityof Colombo Forward’. She addressed about the lacunas in and Master of Laws in Corporate and the legal frameworkreadingthisissueonfood Commercial Law from Kings College, University advertising and oberysity of chidren. of London. He is currently in active practice as a Third presentation titled ‘Definitional and President’s Counsel practicing in both Superior Interpretational Approach towards Economic Courts and Courts of First Instance in the areas Development on the Word ‘Income’ under of Criminal, Civil, Corporate and Public Law. He Current Laws of : A Comparison of also appears before other judicial tribunals for Sri Lanka and India’ was done by RPD state and non-state entities. He has held many Pathirana. She discussed the the vital role of prestigious positions both at international and income tax as a major income of the country domestic levels, including the posts of and its impact on economic development, Additional Solicitor General of the Attorney through the lens of interpretation. General’s Department of Sri Lanka, Justice of Appeal at Court of Appeal of the Republic of Fiji, Final presentation of the conference in the Senior State Counsel at Attorney General’s sessions of law was done by UAT Udayanganie. Department of the Republic of Seychelles and Her research title was ‘Conceptualizing Local Legal Advisor at the Ministry of Foreign Affairs GovernanceintheContextofCitizen Participation: in Sri Lanka. He has been awarded North TowardsaParticipatory Approach of Local Humanitarian Operation Medal and East Government Institutions in Sri Lanka’. She Humanitarian Operation Medal for his service provided a conceptual basis for rendered to the Sri Lanka Navy as Judge institutionalizing citizen participation in the Advocate General and Director General Legal local government system under existing Services. constitutional structure. First presentation of the session was titled Sessionchairappreciatedtheeffortsof researches ‘National Security and Freedom of Expression and wished well for their future endeavours. in Sri Lanka: Friends or Foes’. It was presented by AN Bopagamage and PP Algama.

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Paper ID: 668 National Security and Freedom of Expression in Sri Lanka: Friends or Foes

A N Bopagamage# and PP Algama

Sri Lanka Administrative Service

#[email protected]

Abstract— Freedom of expression is a corner framework essentially. Employment of such post of democracy. Article 19 (2) of the restrictions has furthered national insecurities. International Covenant on Civil and Political Keywords— Freedom of expression, Rights provides the international norm. Second national security, Emergency regulations Republican Constitution of Sri Lanka guarantees the same in Article 14 (1) (a). It is I. INTRODUCTION subject to derogation in the interest of national Expression refers to the manners of security as accepted nationally and communicating and sharing thoughts, feelings, internationally. Sri Lanka has encountered experiences and opinions. “Freedom” is the three bouts of organized violence which absence of control, interference and restriction. endangered national security. This essay (Jayamanne, 2004) Freedom of Expression is examines whether restriction of freedom of the ability to freely express oneself without expression in the interest of national security in being subjected to retaliation, interference, and Sri Lanka was within international standards. partial or complete censorship or legal sanction. Article 15 (7) of the Constitution, Public Most importantly, freedom of expression Security Ordinance (PSO), Prevention of embodies the liberty to effectively seek and Terrorism Act and Proscribing of LTTE Act receive information for meaningful expression. provide limitations on freedom of expression in Conscious restriction of the freedom of the interest of national security. Emergency expression lest other personal liberties are regulations (ER) proclaimed by the President as infringed, is another element of the same. per PSO have been employed predominantly to Freedom of expression is recognized as a restrict the same. Such restriction has mostly fundamental human right. According to been censorship exercised by presidentialy Westhuizen, it is regarded important as speech appointed bodies. Sri Lankan Judiciary is not is an expression of self. The desire to empowered to consider validity of ERs unless a communicate, to express one’s feelings and citizen petitions about an infringement of his thoughts, and to contribute to discussion and fucndamental rights by the same. Judiciary has debate is an essential characteristic of human usually been deferential of administrative nature. (Westhuizen, 1994) The freedom of actions performed under ERs. Necessity and expression is one of the main pillars upon proportionality are two internationally which a free and democratic society is built. recognized requirements for limiting freedom Thus, Thomas Jefferson in 1787 noted that of expression in the interest of national “….were it left to me to decide whether we security. Supreme Court recognized the should have a government without newspapers requirement of necessity in Joseph Perera case or newspapers without a government, I should though this precedent was not followed in later not hesitate a moment to prefer the latter. “ As a cases. It is concluded that circumscribing democracy necessarily implies the presence of a freedom of expression in the interest of national “market place of ideas”, it is universally security was not within the international accepted that freedom of expression is a sine qua non for a democratic political system. (The

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Open University of Sri Lanka, 1998) In a – 2009). Subsequently, freedom of expression democratic political system where sovereignty has been subjected to limitations for the benefit of the people is exercised by franchise, the of national security during such insurgencies freedom of expression is a salient determinant and other instances. of such exercise. This is evident when perusing Hence this article endeavors to survey whether the shared history of democracy and freedom of restriction of freedom of expression in the expression. interest of national security in Sri Lanka was Article 19 of the Universal Declaration of within international standards. In this context Human Rights provides that “Everyone has the the authors have identified following research right to freedom of opinion and expression” and objectives: define the gamut of freedom of furthers the same by stating that “this right expression ensured by 1978 Constitution; includes freedom to hold opinions without survey legislation enabling restriction of said interference and to seek, receive and impart liberty in the interest of national security; and information and ideas through any media and explore judicial review of such restrictions. This regardless of frontiers.” (United Nations, 1948) study is limited to eventualities post enactment Similarly Article 19 (2) of the International of the 1978 Constitution and “public order” has Covenant on Civil and Political Rights (ICCPR) also been considered an aspect of national states that “Everyone shall have the right to security for the purpose of this study. freedom of expression; this right shall include II. THEORETICAL FRAMEWORK freedom to seek, receive and impart information and ideas of all kinds, regardless of A.The State, National Security and Human Rights frontiers, either orally, in writing or in print, in Legitimacy of a State can be measured by the the form of art, or through any other media of implementation and protection of natural his choice.” (UN General Assembly, 1966) Sri rights. (Locke, 2014) According to Donnelly, Lanka, a party to the ICCPR, guarantees the state is simultaneously ‘Principal Violator’ and same by Article 14(1) (a) of the 1978 ‘Essential Protector’ of human rights of the Constitution. Such constitutional guarantee has people. Pacta sunt servanda (cooperation on a direct relevance to the exercise of the the basis of honouring agreements) is an franchise, without which the people’s important universal goal of the international sovereignty cannot be properly exercised. society (Bull, 1977). Article 26 of the Vienna (Marasinghe, 2018) Efficacy of Article 14(1) (a) Convention on the Law of Treaties 1969 was furthered by the nineteenth amendment to establishes that “every treaty in force is binding the Constitution which inserted Article 14A upon the parties to it and must be performed by ensuring the Right to Access to Information. them in good faith”. Sri Lanka is a signatory to Nonetheless, freedom of speech and expression the ICCPR and has ensured constitutional is not absolute in Sri Lanka. Neither is it guarantees for several key rights including the according to the ICCPR. National security, freedom of expression. But, freedom of among some other factors, is a key expression is not absolute as mentioned above. consideration that may restrict the freedom of It may be restricted in the context of national expression along with the right of access to security as per the Johannesburg Principles and information. Post-independent Sri Lanka has due to a state of emergency provided by Article endured at least 4 of the ICCPR. Said principles acknowledge the threecountsofinsurrectionsand/or insurgencies. enduring applicability of the Siracusa Principles Namely, 1971 insurgency led by Janatha on the Limitation and Derogation Provisions in Vimukthi Peramuna (JVP), second (1978- 1989) the International Covenant on Civil and Political JVP insurrection and (1983 Rights and the Paris Minimum Standards of

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Human Rights Norms in a State of Emergency. includes freedom of the press and propagation (ARTICLE 19, 1996) of ideas. B. Constitution, Parliament and Judicial Review In Amaratunga v. Sirimal and Others (Jana Ghosa Case) [1993] 1 Sri LR 264, the Supreme Court Rule of law is the norm any State seeks to observedthat“speechandexpression” protected achieve and fulfill; and simultaneously the by Article 14(1) (a) extends to forms of principle against which the legitimacy of a State expression other than oral or verbal including can be measured and evaluated according to drumming, clapping, placards, picketing, display Locke. Constitution of a nation is “both a of any flag or sign etc. In Karunathilaka v. testament of a nationandaworkhorseofanation”. Dayananda Dissanayake [1999] 1 Sri LR 157 the (Marasinghe, 2018) The ideal of limited court held that right to vote is one form of government, or constitutionalism, is in conflict “speech and expression” protected by Article 14 with the idea of parliament sovereignty. (Kahn, (1) (a). 2002) This tension is particularly apparent where constitutionalism is safeguarded through In Visvalingam v. Liyanage [1984] 2 Sri LR 123 judicial review. (Ginsburg, 2003) Oliver Holmes shareholders of a newspaper banned by the of the American realist school of thought CompetentAuthorityunderEmergency asserts that law is a creation of the judiciary, as Regulations claimed that freedom of speech and the statutory provisions assume substance only expression was infringed on the basis that following interpretation and elucidation with freedom of the recipient is incorporated in the respect to socioeconomic circumstances and same. A five member bench of the Supreme adaption as appropriate by the judiciary. Hence, Court held that Article 14 (1) (a) includes the empirical data was drawn from the 1978 freedom to receive information. Similarly, in Constitution, Parliamentary Acts and case law Fernando v. SLBC [1996] 1 Sri LR 157 the court in order to conduct this qualitative study within upheld the contention that sudden stoppage of the aforementioned framework. Non-Formal Education Programme has infringed the petitioner’s right entrenched by III. Discussion Article 14 (1) (a), if such stoppage was done A. Scope of Freedom of Expression in Sri Lanka without consent of the producers of said As discussed above Article 14(1) (a) of the programme. In Joseph Perera case Sharvananda Constitution entrenches that “Every citizen is CJ observed that “Freedom of speech and entitled to –thefreedomofspeechand expression expression consists primarily not only in the including publication”; though it does not liberty of the citizen to speak and write what he provide which forms of expressions are chooses, but in the liberty of the public to hear covered. According to Article 19 of the ICCPR and read…” and the Court further held that expression is not limited to speech and includes Freedom of speech and expression means the numerous other methods. In Joseph Perera v. right to express one's convictions and opinions Attorney General ([1992] 1 Sri LR 199), freely by word of mouth, writing, printing, Sharvananda CJ described; pictures or any other mode. It includes the Freedom of speech and expression means the expression of one's ideas through banners, right to express one's convictions and opinions posters, signs etc. It includes the freedom of freely by word of mouth, writing, printing, discussion and dissemination of knowledge. It pictures or any other mode. It includes the includes freedom of the press and propagation expression of one's ideas through banners, of ideas, this freedom is ensured by the freedom posters, signs etc. It includes the freedom of of circulation. The right of the people to hear is discussion and dissemination of knowledge. It within the concept of freedom of speech.

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In Environmental Foundation Ltd. v. Urban demonstrate that the restriction is prescribed Development Authority SC (FR) Application No. by law and is necessary in a democratic society 47/04 the right to information was recognized to protect a legitimate national security as part of the freedom of speech and interest. expression. Right to access to information was Threats to national security is a common guise entrenched in the Constitution as Article 14A by employed by government mechanisms to the nineteenth amendment. restrict or repress derogable rights including B. Restrictions on freedom of expression in Sri freedom of expression. Nevertheless, the Lanka Supreme Court in Joseph Perera v. AG held that it is not competent for the President to restrict 1) 1978 Constitution and International (via Emergency Regulations), the exercise and Instruments: Article 14 (1) (a) is subjected to operation of the fundamental rights of the restrictions provided in Article 15 (2) and 15 citizen beyond what is warranted by Articles 15 (7) of the Constitution. Article 15 (7), directly (1) to (8) of the Constitution. Rather than relevant to this study, provides that the recognizing obvious problems of governance freedom of speech and expression is subjected and the need for accommodation, the Sri to limitations “prescribed by law in the Lankan state has frequently responded to interests of national security, public order…” expressions of grievances with repression and Such restrictions are also sanctioned by violence, which have been viewed simply as law international standards and obligations due to and order or security problems. (Uyangoda, pacta sunt servanda. Article 19 (3) of the ICCPR 2001) Although successive governments have similarly provides that exercise of freedom of stressed that militancy would be countered expression is subjected to restrictions democratically, infusing authoritarian means “provided by law” for the protection of national into the country’s democratic institutions has in security or of public order”. According to Article practice been considered the best way to 29 of Siracusa Principles on the Limitation and confront it. (Warnapala, 1994) Following Derogation Provisions in the International legislations have been instrumental in Covenant on Civil and Political Rights, national restricting the freedom of expression and security may be invoked to justify measures freedom during the period considered in the limiting certain rights only when they are taken study. to protect the existence of the nation or its territorial integrity or political independence 2) Emergency Regulations and Prevention of against force or threat of force. (American Terrorism Act: Pre-independence Public Association for the International Commission of Security Ordinance No 25 of 1947 (PSO) was Jurists, 1985) Articles 30 and 31 describe that passed as an urgent bill in ninety minutes national security as a pretext for restricting amidst warning from the floor of the House that enjoyment of freedom of expression cannot be it requires careful consideration. (Manoharan, vague or arbitrary, cannot be used to prevent 2006) This legislation was enacted to deal with merely local or relatively isolated threats to law 1947 general strike. Emergency provisions, and order and that adequate safeguards and popularly known as “Emergency Regulations” effective remedies must be in place against (ER), are declared under the PSO “in the abuse of such restriction. This is furthered by interests of public security and the preservation Johannesburg Principles (ARTICLE 19, 1996) of public order or for the maintenance of which provides that: supplies and services essential to the life of the community”. (Sri Lanka Parliament, 1947) The No restriction on freedom of expression or President of the Republic is empowered to information on the ground of national security proclaim a state of emergency as per Article may be imposed unless the government can

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155 of the Constitution. The Parliament has 14 in any unlawful activity” and there was no days to approve such proclamation and then the provision for appeal or refute for any measure only has to be sanctioned monthly by organization denounced as such. Section 4 (e) the Parliament thereafter. Emergency of the Act inhibited the freedom of expression regulations are valid for a month but the by providing that any person who “makes, President is vested with the power to renew prints, distributes or publishes or is in any way and modify a regulation. Therefore, the ER and concerned in the making, printing, distribution the related orders automatically lapse. or publication of any written or printed matter (Coomaraswamy & Los Reyes, 2004) Though which is or purports to be published by or on Article 155 Parliament is only empowered to behalf of such organization or by any member consider a proclamation’s validity and not the thereof” is guilty of an offence. This Act was actual emergency regulations, section 5(3) of repealed as it did not produce the desired the PSO provides that parliament may revoke, results; eradication of militant activities by such alter, or amend a regulation through a proscribed organizations or preventing people resolution of Parliament. However, the from joining them as then Justice Minister Parliament so far has not exercised that Devanayagam observed at the Parliament. authority and has acted as a mere rubber stamp (Parliament of Sri Lanka deb, 1979) with regard to emergency regulations Prevention of Terrorism (Temporary proclaimed by the President. (Coomaraswamy Provisions) bill was introduced as “urgent in & Los Reyes, 2004) Further, as provided by national interest” as per Article 122 (1) (b) of Article 154J (2) of the Constitution judiciary the Constitution and Supreme Court was to cannot inquire any proclamation issued under determine the constitutionality thereof within the PSO, the imminence or grounds thereof. twenty-four hour (or a period not exceeding Such inability to test the appropriateness of three days as specified by the President) emergency regulations has resulted in PSO according to Article 122 (1) (c). (Article 122 being considered a draconian law. This was repealed by the Nineteenth Amendment to disability of judicial review of ER is noted in the Constitution Sec.30) It was ruled that the landmark case Joseph Perera v. AG; “He [the bill did not require approval of the people at a President] is the sole judge of the necessity of referendum and that the bill was not within the such regulation and it is not competent for this scope provided in Article 83 of the Constitution. court to inquire into the necessity for the Manoharan (2006) notes that Tamil United regulations bona fide made by him.” This Liberation Front (TULF) parliamentarians had disability has attached significance to boycotted the House in protest of redrawing fundamental rights chapter as the citizens have Vavuniya electoral district during the passage of the locus standi to apply for redress as per the bill. Eventually, this bill, viewed the key to Article 126, when emergency regulations may tackling Tamil terrorism by Sinhala majority at infringe rights assured by the Constitution. the time (Balasuriya, 1987) was passed and Nevertheless, the ERs with regard to restricting Prevention of Terrorism (Temporary freedom of expression cannot be made “beyond Provisions) Act No. 48 of 1979 (PTA) became what is warranted by Articles 15(1) to (8) of the law with a restriction on freedom of expression Constitution”. (Joseph Perera case) by virtue of Section 2 (h) which provides that Proscribing of Liberation Tigers of Tamil Eelam any person who “by words either spoken or and Other Similar Organizations Act No. 16 of intended to be read or by signs or by visible 1978 empowered the President to proscribe representations or otherwise causes or intends any organization which in his opinion to cause commission of acts of violence or “advocates the use of violence and is either religious, racial or communal disharmony or directly or indirectly concerned in or engaged feelings of ill-will or hostility between different

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law communities or racial or religious groups” is of planning an unrest during a public meeting liable for “imprisonment of either description following issue of a leaflet that criticized the for a period not less than five years but not government. Previous stance of the Court exceeding twenty years”. However, above changed and freedom of expression and speech provision was made law despite the fact that was held to be an enforceable right and that Article 15 (2) also dictates that freedom of judiciary retained the prerogative to consider speech and expression entrenched by Article 14 the validity of any restriction upon freedom of (1) (a) is subject to restrictions “in the interests expression by President-made ERs. Therefore of racial and religious harmony”. But the PSO the ER 28 requiring the permission of the police and PTA further restrict the freedom of for exercise of freedom of expression via expression. (Gunasekara, 2014) Judicial review distribution of any posters, handbills or leaflets of such instances where the petitioners alleged was considered “pre-censorship” and hence infringement of their fundamental rights and ruled ultra vires. Hence the Supreme Court hence challenged administrative actions in recognized the concept of necessity in deciding accordance with Article 126 of the Constitution whether regulations restricting freedom of are discussed below. speech and expression are constitutionally valid. (Wickramaratne, 2013) 3) Related Case Law: In above mentioned Visuvalingam v. Liyanage the order made by the Petitioner claimed that his freedom of Competent Authority under regulation 14 of ER, expression has been infringed as he was which empowers a presidentially appointed compelled to cease publication of news items, body to prevent or restrict publications in the inter alia, relating to the conduct of military interests of national security, public order and operations and related matters pertaining maintenance of essential services, to close the thereto in the “Janajaya” newspaper of which he newspaper “Saturday Review” was challenged. is the Chief Editor and Publisher due to ERs The Supreme Court noted that said newspaper proclaimed by the President as per Section 5 of “highlights the atrocities and excesses of the the PSO, in Wickramasinghe V. Edmund police and the armed services.” The Court held Jayasinghe, Secretary, Ministry of Media, that during the state of an emergency the state Tourism and Aviation [1995] 1 Sri LR 300. The is entitled to restrict freedom of expression and Court veered from the perspective in Joseph that judicial review should abstain from Perera case stating that the facts therein are interference therein noting; significantly different and refused leave to proceed stating “the impugned censorship has Freedom of speech, press and assembly are been imposed at a time of national crisis and in dependent upon the powers of Constitutional the context of an ongoing civil war. Its validity government to survive. If it is to survive it must has to be considered having regard to the have the power to protect itself against reality of the current situation”. Similarly in unlawful conduct and under certain Sunila Abeysekera v. Ariya Rubasinghe, circumstances against incitements to commit Competent Authority and Others SC Application unlawful acts. No. 994/99 Court observed that the impugned In Joseph Perera v. AG, Joseph Perera a member regulations were framed at a time of national of the Revolutionary Communist League and crisis and in the context of an ongoing civil war organizer of the "Young Socialist" in Chilaw, his and hence validity of such has to be considered brother and the speaker who was to deliver a with regardto the reality of said circumstances. lecture on “Popular Frontism and Free The Emergency(ProhibitiononPublicationand Education” at a meeting organized by the TransmissionofSensitiveMilitaryInformation) Revolutionary Communist League were placed Regulation (1998) prohibited the publication of under a preventive detention on the allegation “any publication pertaining to official conduct,

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law morale, the performance of the Head or any prejudicial to preservation of public order is member of the Armed Forces or the Police unreasonable. Hence, raising the necessity of Force or of any person authorised by the applying the concept of necessity recognized in Commander - in - Chief of the Armed Forces for Joseph Perera case. the purpose of rendering assistance in the C. Sri Lankan Experience and International preservation of national security” and the Standards petitioner alleged that objective of the disputed ER which restricted her freedom of expression Sri Lankan practice of governmental was to prohibit publication of information interference with freedom of expression embarrassing to the Government, than attracted far and wide criticism following the protection of national security. As mentioned ban on publication or broadcast of war related above the Court upheld the ER in consideration news in 2000. And 2014 Tissainayagam of security interests given the circumstances at incident too was condemned as beyond the time. “We must not lose sight of priorities” permissible restrictions set out by the ICCPR. commented Amarasinghe J in Sunila Fact Sheet No 32 of the UN Office of the High Abeysekera v. Ariya Rubasinghe. Commissioner for Human Rights citing the (Wickramaratne, 2013) Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR states that In Siriwaedena v. Liyanage (Aththa case) FRD any limitation to the human rights must be (2) 310 publication of the leftist newspaper authorized by a prescription of law and the law “Aththa” was banned and the press in which the must be adequately accessible so that newspaper had been printed was closed by the individuals have an adequate indication of how order of the Competent Authority under ERs. the law limits their rights and must be The petitioners contended that this order, formulated with sufficient precision so that infringing the freedom of expression, was made individuals can regulate their conduct. to prevent “Aththa” from campaigning against the Government in the impending referendum Article 4 of the ICCPR provides that in a “state through the pretext of “preservation of public of public emergency which threatens the life of order”. The Court stated that the phrase “for the the nation”, a state “may take measures preservation of public order” should be derogating from their obligations under the interpreted to mean “for the purpose of Covenant to the extent strictly required by the preventing disorder”. Wimalaratne J exigencies of the situation” (Callarmad, 2015). commented that “taking also into account the The Article 4 of the ICCPR does not define the history of escalating post-election violence in state of emergency and different States have this country, and the mounting tension prior to different ways of dealing with the state of the Referendum I am of the view that the emergencies within their own domestic legal decision of the Competent Authority was not regimes. (Oraá, 1992) It purports to reduce and unreasonable…” Wickramaratne (2013) eventually avoid abuse of emergency powers by respectfully submits that above conclusions are State parties through availing themselves of the untenable as the Court of law could not have right of derogation too easily. To invoke Article taken judicial notice of “the history of escalating 4, two fundamental conditions must be met: the post-election violence” and “mounting tension situation must genuinely amount to a public prior to the Referendum” as Competent emergency which threatens the life of the Authority had not stated that such were taken nation and; the State must have officially into account when making the impugned proclaimed a state of emergency. States must orders. Further, if only some of the material also provide “careful justification for not only “could have incited persons to breaches of the their decision to proclaim a state of emergency, peace” concluding that whole publication was but also for any specific measures based on

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law such a proclamation”. (Callarmad, 2015) Any derogable in the interest of national security. derogation to the freedom of expression Sri Lanka in order to combat two youth otherwise is unlawful. In Sri Lanka, right to insurrections and mainly the Civil War has freedom of expression has been restricted enacted and enforced legislature that may under ERs in states of emergency, mostly in the restrict freedom of expression. The State has form of “prior censorship” as mentioned above. subjected the right to freedom of expression to The Parliament is empowered only so far as to circumscription in the name of national security consent or dissent the proclamation of and public order and; consequently attracted emergency once issued by the President within national and international criticism. A critical 14 days. The Judiciary is not entitled to review survey of such restrictions manifested that ERs the decision to proclaim emergency or the proclaimed by the President under the PSO content unless a petition with locus standi is have been employed for the most part. A review brought before it. of case law displayed that on most instances the Court upheld the restrictions on freedom of The ICCPR provides right to freedom of expression and speech deferential to the expression may be circumscribed only to the government security interests. Nevertheless, extent that is required by the emergency such restrictions were not unreservedly within situation. Secondly, the principle of the framework established by major proportionality which came as a yardstick to international instruments on the same. The test determine the legality of State interference with of proportionality and approach of necessity, the people’s rights (Oraá, 1992) must be required by international standards, have often considered in this regard. According to been overlooked in circumscribing the freedom Callarmad (2015) the Court is required to of expression. The vicious and well –organized consider whether the restriction in question is nature of the LTTE and having to counter the ‘least restrictive means’ for achieving the organized violence from two fronts relevant purpose, in this case “in the interests of simultaneously, second JVP insurrection and public security and preservation of public LTTE, prompted stern action. Nevertheless, order”. This question was raised by conveniently available limitation of freedom of Wickramaratne (2013) with regard to the Court expression curbed the urge for more upholding the complete ban and closure of the democratic means of redressing the root cause Aththa newspaper and printing press in of such social eruptions. Siriwardene v. Liyanage, when only “some” of the material could have been injurious. V. REFERENCES Welikala (2015) states that “one of the major American Association for the International weaknesses in the way our constitution Commission of Jurists, 1985. Siracusa Principles. articulates the freedom of expression is that the [Online] Available at: https://www.icj.org/wp- requirement of ‘necessity’ in ICCPR Article 19 content/uploads/1984/07/Siracusa-principles- (3) for the restriction of this right is absent in ICCPR-legal-submission-1985-eng.pdf the Sri Lankan framework for restrictions”. [Accessed 14 May 2020]. IV. CONCLUSION ARTICLE 19, 1996. The Johannesburg Principles Right to freedom of expression is assured to Sri on National Security, Freedom of Expression and Lankans by virtue of Article 14 (1) of the 1978 Access to Information, London: ARTICLE 19. Constitution. Judicial review has established Balasuriya, F. T., 1987. Youth, Insurrection and that said right can be exercised in numerous Democracy in Sri Lanka: 1971 - 1987 - Can Sri way and, is not limited to speech. As also Lanka Avoid Blood Bath of Youth?. Logos, 26(2). established by the ICCPR, the Constitution asserts that said constitutional guarantee is

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Callarmad, A., 2015. Freedom of Expression and Ordinance.Online]Availableat: National Security: Balanacing for Protection. https://www.lawnet.gov.lk/1947/12/31/publi [Online] Available at: c-security-4/ [Accessed 28 June 2020]. https://globalfreedomofexpression.columbia.e The Open University of Sri Lanka, 1998. Case du/wp-content/uploads/2016/01/A- book on Fundamental Rights. Colombo: The Callamard-National-Security-and-FoE- Open University of Sri Lanka. Training.pdf [Accessed 28 July 2020]. UN General Assembly, 1966. International Coomaraswamy, R. & Los Reyes, C., 2004. Rule Covenant on Civil by emergency: Sri Lanka's postcolonial andPoliticalRights.[Online]Availableat: constitutional experience. International Journal https://www.refworld.org/docid/3ae6b3aa0.ht of Constitutional Law, 2(2). ml [Accessed 24 July 2020]. Ginsburg, T., 2003. Judicial Review in New Warnapala, W., 1994. Ethnic strife and politics in Democracies: Constitutional Courts in Asian Sri Lanka : an investigation into demands and Cases. s.l.:Cambridge University Press. responses. New Delhi: Navrang. Gunasekara, L., 2014. Freedom of Expression & Welikala, A., 2015. SECURING THE FREEDOM OF the mass media: Weak support for democracy EXPRESSION IN THE NEW SRI LANKA: by news media. In: SL: State of Human Rights. ESSENTIAL INSTITUTIONAL REFORMS. [Online] Colombo: Law & Society Truste. Available at: Jayamanne, N., 2004. FREEDOM OF https://groundviews.org/2015/01/17/securin EXPRESSION AND RIGHT TO INFORMATION. g-the-freedom-of-expression-in-the-new-sri- lanka-essential-institutional-reforms/ Kahn, P. W., 2002. The Reign of Law: Marbury v. [Accessed June 2020]. Madison and the Construction of America. s.l.:Yale University Press . Westhuizen, J. V., 1994. Freedom of Expression. In: J. D. B. d. V. D. D. David van Wyk, ed. Rights Locke, J., 2014. Two Treaties of Government. and Constitutionalism: the new South African [Online] Available at: legal order. s.l.:Clarendon Press, p. 269. http://www.yorku.ca/comninel/courses/3025 pdf/Locke.pdf [Accessed 20 July 2020]. Wickramaratne, J., 2013. Fundamental Rights in Sri Lanka. Second ed. Colombo: Stamford Lake Manoharan, N., 2006. Counter Terrorism (Pvt) Ltd. Legislation in Sri Lanka : Evaluating Efficacy. [Online] Available at: Author Biographies https://www.eastwestcenter.org/system/tdf/p rivate/PS028.pdf?file=1&type=node&id=32164 [Accessed 2020 May 20]. Marasinghe, L., 2018. In: The Evolution of Constitutional Governance in Sri Lanka. Colombo: Vijitha Yapa Publications, pp. 297- 298. Oraá, J., 1992. Human Rights in States of Emergency in International Law. Oxford: Clarendon Press.

Parliament of Sri Lanka, 1979. Hansard Arunoda N. Bopagamage is an officer of the Sri (Parliamentary Debates). s.l., s.n. Sri Lanka Lanka Administrative Service and the Assitant Parliament, 1947. Public Security Divisional Secretary, Colombo. Previously he

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law was attached to Ministry of Finance and Managemnet. Previously she served as the Ministry of Public Administartion as an Assistant Director (Corporations and Statutory Assistant Director. He holds a BSc in Boards) of the same Ministry. She holds a Management Information Sytems from Master of Arts in International Relations from University College Dublin (Ireland) and an LLB Colombo University and a BSc (Physical from Open University of Sri Lanka. He is Sciences) from University of Sri currently reading for a Master of International Jayewardenepura. She is currently reading for a Relations at University of Colombo. Master of Economics at University of Colombo and an LLB at Open University of Sri Lanka. Pranidhi P. Algama Bopagamage is an officer of the Sri Lanka Administrative Service. She is the Assistant Secretary (Parliamentary Affairs, HR

& IT) of Ministry of Industries and Supply Chain

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Paper ID: 669 Regulating Food Advertisement in Sri Lanka and Curbing Childhood Obesity: The Way Forward

Geethani Jeewanthi

The Open University of Sri Lanka

[email protected] Abstract- Advertising and marketing of overweight in 2019. Even though once it was unhealthy foods and beverages to children has considered as a problem faced by developed affected the dietary preferences, food choices of (high income) countries, it is now even children. Both foreign and local studies have increasing in developing (low and middle also proved a positive relationship between the income) countries. It is noted that the number times spending TV advertisement with the junk of overweight children below age 5 has food habit which leads to the obesity of increased by nearly 24% in the African region. children. In this context, this paper will discuss Furthermore, since 2000 almost half of the the legal frameworks at international level and children below age 5 who lived in the Asian Sri Lankan and the different practices adopted region were obese or overweight in 2019. by othercountriesandwillsuggest In the Sri Lankan context, a study done by recommendations for a better legal framework Katulandaetalin2005reportedthat percentages forSriLanka. Even though this study of Sri Lankans being overweight as 25.2%, multidimensional by nature, this study only obese as 9.2% and abdominal obesity as 26.2%. focuses on understanding the legal framework Focusing only the urban population of Sri of Sri Lanka on this issue. This legal research is Lanka, Somasundaram et al has conducted a based on legal material and has utilized the researchin2019 andconcludedthatthe qualitative methodology of data analysis to percentages as overweight as being 37.5% and reach findings. The international conventions, obese as 15.8%. A study done in relation to WHO guidelines, journal articles and books children the overweight and obesity prevalence have been used as primary sources and the among children in Sri Lanka shows different research conducted by the other researches ranges with provincial and gender variations. have been used as secondary data. Finally, it can According to that study, among boys and girls be concluded that the Sri Lankan legal system between 8 and 10 years this was 4.3% and has taken effort to address this problem. 3.1% respectively and obesity prevalence However, there are many lacunas can be among primary school children in Colombo identified in implementation level. district is 5.1%in 2008(Mohomad S.M, 2015). Key words- Right to safe, food Childhood II. RISK OF BEING OBESE obesity, Advertising regulations More than 75% of obese children will become I.INTRODUCTION obese adults (Litwin, 2014) and it can affect any According to the World Health Organization organofthebodyfromheadtotoe (WHO) statistics, obesity has tripled since 1975 (Wickramasinghe, 2016).Those who were worldwide and it is noted that most of the obese at a very young age are at higher risks for world population dies due to overweight and associatingchronicdiseasessuchas obesity than due to underweight. These figures hypertension, dyslipidaemia, type 2diabetes, are quite similarly applicable to children across heartdisease,stroke,gallbladderdisease, the world and it was reported that 38 million osteoarthritis,sleepapnoeaandrespiratory children below the age of 5 were obese or problems,andcertaincancers(Markus

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Juonala,2011, Kelsey, 2010 , Singh A.S. ,2008). Children spend more time in front of different Research has also shown that childhood obesity types of media including mobile phones, can leave a permanent imprint on the health of computers and television. Media is a powerful the individual, so that even if the body mass tool which leading to changing an idea and index (BMI) is controlled later in life they have perception of individuals. It can be noted that in an increased risk for Non Communicable the Sri Lankan context, Television is the most Diseases(NCD)relatedcomorbidities popular media for which people have easy (Wickramasinghe,2016).Obesityaffects children access. Different channels telecast varieties of physically, as well as psychologically. programme on Television targeting different Psychological effects intensify with increasing segments of the public. TV channels broadcast age. Bullying, peer rejection, lack of friends and programme as a business and one of the best lack of self-confidence could be seen at school ways of earning a good income is the telecasting andlowjobopportunitiesandlackof of advertisement in between programmes. The companionship later in life (August GP et al, objective of publishing an advertisement is to 2008). Moreover, this obesity epidemic also has promote a product or a service and the many economic consequences (Wang. Y and selection of the time slot for telecasting the Lim H, 2012). Therefore, addressing weight advertisement varies according to the product. gain during childhood is an important priority For example if the product is about a sweet food for countries because doing so reduces the item for children, the advertisement telecast growing burden that obesity imposes on the during a child programme If the advertisement health care system, on employers and the is about sports items, it is telecast during a economy, and on affected individuals and their sports programme. The advertisements have families (WHO report, 2016). the power to change the ideology of people,s mind compelling them to buy unnecessary III. BAD ADVERTISING AS A CAUSE FOR things. Systematic reviews find moderate to OBESITY AMONG CHILDREN strong evidence that these promotions Taking high dense of calories than required influence children’s food preferences, purchase level will lead to obesity and therefore, requests, and actual consumption patterns, to selection of food that a child eats determines the detriment of children’s diet-related health the BMI level of the child. However, in this (Gerard Hastings et al, 2003). The children tend context it is essential to see whether there is a to believe what is shown on TV. Another positive relationship between the bad concern is that children are particularly advertising of the food and the selection of food. vulnerable to advertising, with children under Studies have proved that advertising and the age of seven years generally unable to marketing of unhealthy foods and beverages to distinguish between editorial and promotional children as an important, modifiable risk factor content(SoniaLivingstone&Ellen Helsper,2004), affecting the dietary preferences, food choices, and most children developing a critical and weight of children(Gerard Hastings et al, understanding of advertising around the age of 2006). Large, multinational food companies 12 years. When an advertisement shows that a spend massive sums of money on advertising child gets the power and flies in the sky after and marketing their products to young people drinking some artificial drink the viewer, (the (Jon Leibowitz et al, 2012, Lisa M. Powell et al, child) believes it as a truth and pushes their 2013), and the majority of this publicizing is for parents to buy that drink. unhealthy goods such as sugar-sweetened Fernando T et al (2019) proves the link cereals, soft drinks, confectionery, and fast between TV viewing and the obesity in a study food(Georgina Cairns et al,2008). conducted previously by using a Sri Lankan school aged children. This particular study was

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law done to investigate the connection between could be justified as it allows the author to obesity among school children and television provide a complex textual description on the advertisements and further to see the link different texts writing on the subject matter. between the food habit and advertisement and Among the it proves that there is a positive relationship differentmethodsunderthequalitative between the times spending TV advertisement methodology, the author utilized the content with the junk food habit which lead to the analysis method for this research. The author obesity of children. Fernando T et al (2015) used many contents which are in different again found by the other study that most of the places for this study. The international level and advertisements on all television channels for the practices of the other countries have looked children were food that contained high-fat and out by the international human rights high-sugar foods. Further they found that instruments, WHO guidelines and different children in Sri Lanka have a high-level exposure other reports. The domestic situation has been to advertising for unhealthy food products. By analyzed using the Constitution, other statutes, proving this positive relationship between TV case reports and other studies done in the same viewing and childhood obesity, Samaraweera, area. Apart from that books and journal articles G.R., & Samanthi, K. (2010) also found that, food have also been used for the analysis. demand of children is created by children by VI. DISCUSSION AND FINDINGS themselves and by parents for their children. A.State party obligation under international law Any government of any country has the responsibility of protecting children of their Sri Lanka is not an isolated country in the jurisdiction and the enabling proper legal world, and it has immense responsibilities, regulationstominimizeadvertising obligations and recognition throughout the malpracticesisoneofthewaystoprotect children. world by accepting and ratification many of the major international conventions. This state IV.OBJECTIVE OF THE STUDY obligation to take actions to regulate In this context this paper will discuss the legal advertisement seen by children has discussed frameworks at international level and Sri in international convention and Convention on Lankan level. Finally, this paper will discuss the the Rights of the Children (CRC) can be named different practices adopted by other countries as one of the best instrument dealing in this and suggest recommendations for a better legal aspect. According to the provisions of the CRC framework for Sri Lanka. The main research parents or the guardian are under the primary questions will be: What is the level of state part obligation to safeguard their child’s health and obligations to address this issue? What are the development. It is also the duty of the state to laws implemented in Sri Lanka on this issue? assist and provide facilities and services (Article How far we can appreciate the Sri Lankan law? 18(2)). Article 24 of the CRC specifically focuses What are the good practices of other countries on the Right to health of the children. The and how far we can adopt those in Sri Lanka? General Comment 15 issued by the United Nation Committee on the Child Rights which V.METHODOLOGY provide a wide interpretation to the Article 24 Even though this study is multidimensional by of the CRC defined in article 24 as an inclusive nature, this study only focuses on right, extending not only to timely and understanding the lacunas of the legal system of appropriate Sri Lanka which has contributed to this food prevention,healthpromotion,curative, safety problem. This legal research has been rehabilitative and palliative services, but also to based on the documents and has utilized the a right to grow and develop to their full qualitative methodology of data analysis to potential and live in conditions that enable reach findings. Selecting of qualitative approach

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law them to attain the highest standard of health regulate advertising of unhealthful foods”. through the implementation of programmes Partnership between commerce and that address the underlying determinants of government was suggested as a substitute to health. The state responsibility initiated under self-regulation. the term ‘adequate nutritious foods’ written in Additionally, The World Health Organization the Article 24(2)(c) has been broadly (WHO), in 2010 issued some recommendations interpreted as follows. on Marketing of Foods and Non-Alcoholic “States should also address obesity in children, as Beverages to Children that invited all member it is associated with hypertension, early markers states to initiate policy measures to call on of cardiovascular disease, insulin resistance, member states to decrease children’s exposure psychological effects, a higher likelihood of adult to, unhealthy food marketing. obesity, and premature death. Children’s Further,theInternationalChamberof Commerce exposure to “fast foods” that are high in fat, also set some observations which sugar or salt, energy-dense and micronutrient- shouldbeutilizedwhenusingmarketing poor, and drinks containing high levels of communicationsaddressingchildren. It caffeine or other potentially harmful substances emphasis that: the particular communication should be limited. The marketing of these should not undermine positive social behavior, substances – especially when such marketing lifestyles and attitudes; the Products is focused on children – should be regulated unsuitable for children or young people should and their availability in schools and other places not be advertised in media targeting them; and controlled.” advertisements directed to children or young Further by giving particular reference to the people should not be inserted in media where responsibility that should be fulfilled by private the editorial matter is unsuitable for them. sector under the CRC the general comment B.Sri Lankan legal framework emphasis that The current regulatory framework of Sri Lanka “All business enterprises have an obligation of pertaining to regulating of advertisement can due diligence with respect to human rights, be listed as follows. The Food Act No 26 of 1980 which include all rights enshrined under the can be identified as major legislation in this Convention. Among other responsibilities and in regard. Section 3 (1) of the Food Act stating all contexts, private companies should: comply that, “No person shall label, package, treat, with the International Code of Marketing of process, sell or advertise any food in a manner Breast-milk Substitutes and the relevant that is false, misleading, deceptive or likely to subsequent World create an erroneous impression, regarding its HealthAssemblyresolutions;limit character, value, quality, composition, merit or advertisementofenergy-dense, micronutrient- safety.” It is also mentioned in the Section 4 of poorfoods,anddrinks containing high levels of the Act that, “Where a standard is prescribed caffeine or other substances potentially for any food, no person shall label, package, sell harmful to children.” or advertise any food which does not confirm to that standard in such a manner as is likely to Further the Special Rapporteurs on the Right to be mistaken for the food for which the standard Health and Food, identified as the central has been prescribed. person working on this Right, has highlighted the link between an unhealthy diet, obesity and Under provisions of the Food Act the ministry non-communicable diseases in his annual has the power to issue gazette notification report. He supplementary that “states have a regarding any matter concerning to this Food positive duty, under their duty to protect, to Act and up to now many gazette notifications

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law have passed. Food (Colour Coding for Sugar optimize the educational performance among levels) (Gazette Number 1965/18) is one such school children by improving their nutritional important regulation. This regulation is status. According to the provisions of the above effective from from 01-08-2016. According to circular, while it this regulation “No person should advertise promotetheavailabilityofhealthyfoods, carbonated beverage, Ready to serve beverages (grains,vegetables,fruits,foodscontain other than milk-based products, Fruit Nectar proteins,porridgeandhealthydrinks) it is clearly and Fruit Juices unless it labeled in with the banded from selling high fat foods numerical description of the sugar content, (Sausagespastries),Highsurgeitems, (Chocolate, description of the relative sugar level and Toffees, Donuts, ice packets and syrups and colour code (Red, amber and Green). flavored drinks), High salty food items (Pizza, Tipi Tip, Bites, Vegemite and Marmite), Junk Food (Sweeteners) Regulation 2003 (Gazette food and Zero Calorie Items. Further it is NotificationNumber1323/1issuedon required to limit the Deep-fried food items such 2004.01.12) is also important in this aspect. It as roles and cutlets. stated that “No person shall advertise any sweetener other than a permitted sweetener for National Child Protection Authority has recently use in or on any food. It is also recommended developedtheNationalPolicyonChild Protection to display in writing on the label of the package (2017) and one of the objective of this draft contained that food about the description about policy is to ensure delivery of effective services the sweeteners used in clear and legible and secure a supportive environment that manner. It is also mentioned in the gazette that prevents and reduces harm to children from a even thoughsomesweetenersarepermitted wide range of threats to their protection, and (example: aspartame), since it is not good for promotes their safe and healthy development, children and the word ‘not recommended for with benefits for individuals, families and wider children’ should be printed in clear and legible society. Creating an environment which helps letters. vulnerable children to choose their healthy food, rather than get caught into food Secondly the Consumer Affairs Authority Act advertisements can be considered as one such also provides certain regulations in this regard. initiative taken by relevant parties. According to one such regulation, advertising of infant (below 1 year) milk powder is totally In additiontotheabovelegislations,The banded. Further Direction number 7 issued on Intellectual Property Act, 2003, protects the 2007 required every advertisement in respect trademarks of the industry and if anyone uses of the sale of any article published in any media their trade names to mislead consumers that to mention the retail price of such an article. companycansueagainstthewrongdoer according to the provisions of the Act. Likewise, Cosmetic, Thirdly, Health Ministry together with the Devices and Drugs Act, (1980), and Obscene Education Ministry has approved the Canteen Publications Ordinance (1983), also Policy in Sri Lanka by maintaining the norm addressesthemisleadingadvertisementin that, when school food environment can be general made healthy, it influences students to make healthy food choices and develop healthy eating One of the other approaches which need to be habits (Mensink F, 2012). The initial Policy was addred in this study is the legality of using approved in 2007 and late in 2011. Another childreninadvertisements.Inthecurrent context Circular number 2011/03 was issued by the where the promotional strategy has shifted Ministry of Education regarding the foods from ‘marketing for the children’ to ‘marketing which should be available in school canteen. by the children’ (Sudeep. L, 2017) One of the key objectives of this policy is to andthetimewhenmarketershavebeen

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law researching for the best tool to influence juice, cake, energy drink, biscuits, cookies, children it is vital to study the regulatory chips,) was determined as the foods and framework which concerns using children in beverages that are not allowed to be advertised advertisements.Whenparentswere questioned during children programs, orange category about this, 43 % of parents, agreed while 40% (foods such as "nuts, breakfast cereals, crackers, of them were neutral. Currently Sri Lanka does whole milk, dough products, dairy products, not have any of the law to regulate this matter. fat...) as foods and beverages allowed to be As children are in capable of providing consent advertised if the specified criteria are satisfied according to the general principles of law, and green category ("fresh fruits, vegetables, parents or guardian’s consent is required meat, fish, eggs...") as foods and beverages before a child is taken for an allowed to be advertised. advertisement.Otherthanthis,SriLankan Sweden has the strictest regulation with a ban Rupavahinie (Television) corporation code of on radio and television commercial advertising advertising standards and practice code, which which targets below the age of 12 was drafted long time back (1985) has some .Furthermore; in 2013 all the companies’ came guidelines in this regard. It emphasizes the to an agreement of self-regulation which following: banned advertising of unhealthy foods and “No products or service may be advertised and beverages for children below 16 years old. In nomethodofadvertisingmaybeusedin Belgium it is not allowed to broadcast any association with a programme intended for commercial 5 minutes before and after the children or which large numbers of children are Children’s programe. In Chile, promotional and likely to see, which might result in harm to advertising targeted children below 14 years them physically, mentally or morally, and no old for High Fat, Sugar and salt foods (HFSS) method of advertising may be employed which foods is limited in media. The takes advantage of the natural credulity and Quebecgovernmentimplementedalaw sense of loyalty of children.” However,weshould controlling junk-food advertising for kids under understand that, these are only guideline or 13 years old in both electronic and print media practicewhichdoesnothaveanylegal in 1980. In Mexico,aregulation passed to enforceability. Therefore,itisverymuch restrictpromotingofunhealthyfood important to regulate this area of law. advertisements in specific time of the day if the 35% of the audience under 13 years old. By C. Good practices of other counties going a step further, in 2017 the United Whenlookingatthepracticesofother jurisdictions Kingdom introduced stringent their rules the following observations can be noted. In limiting child’s exposure even for virtual spaces. Turkey "Regulation on Procedures and According to this new law it is not allowed to Principles of Broadcasting Service" was advertise HFSS food amended in 2018. With the amendment it has advertisementsonwebsitestargeting children. been explained how the advertisements on VII. CONCLUSION AND RECOMMENDATION. foods and beverages which can lead to bad health of the children are limited when children Even though international regime suggests an program is broadcasting. They have taken the obligation that should be fulfilled by the State Food Profile Model and the prepared Foods and party it cannot be seen that the responsibility is Beverages List from the Ministry of Health and fulfilled in an equal manner everywhere. One of according to that they have classified all the the major reasons for this failure can be advertisement into three categories by identified as the level of enforceability of such allocating red, orange and green colours. Red international recommendations. The General category (foods such as "chocolate, sugar, fruit Comments issued under the Conventions on the

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Rights of the Child (CRC) are considered as a displayed intheadvertisement.Forexample,itis broader interpretation for the articles of the compulsory to mention the level of the sugar convention, but general comment is not per se content and the relevant color codes in the label enforceable before law. This quite similar with of any artificial drinks. However, showing these the implementation of right to safe food under details is not compulsory and it is only the the International Covenant on the Economic, displaying pricethatiscompulsoryinthe Social and Cultural Rights (ICESCR) where it advertisement. required state party ‘take action’ in ‘progressive Finally, it can be concluded that Sri Lanka can to full realization’ of the rights mentioning in learn many lessons from other jurisdiction to the ICESCR. Furthermore, the regulate the advertising targeted on children. In recommendations issued by the WHO belong to this context the government, as the main and the category of soft law the most capable body implementing rules and whichdoesnotarisehighpower f regulation, should come front and take the enforceabilitylikehardlawssuchas Conventions. initiative of drafting new rules and regulations. Referring to the WHO guideline of 2012 the It is also the duty of the private commercial WHO in 2016 at the Global Commission on sector to take prompt actions by enabling self- Ending Childhood Obesity highlighted the regulations aiming of cultivating healthy food letdown of WHO member states in habits among children rather that running implementing the above WHO’s behind only profit. recommendations. REFERENCE Nevertheless, it is apparent that, even though Sri Lanka has taken some efforts to regulate the August GP, Caprio S, Fennoy I, Freemark M, advertising it is not sufficiently effective to Kaufman FR et al. Prevention and Treatment of address the bottom-line problems in Sri Lanka. Pediatric Obesity: An Endocrine Society Clinical In their study, Reeva and Magnusson (2018) Practice Guideline Based on Expert Opinion. comparedthelegalframeworksofsix Journal of Clinical Endocrinology and jurisdictionandidentifiedthreemodelof Metabolism. 2008 93:4576- 4599. regulatoryframeworkswhichrestrictfood http://dx.doi.org/10.1210/jc.2007-2458 marketingforchildrennamely:statutory PMid:18782869 regulation, where a government develops and Ferando, T. A., Achala Abeykoon, A. M. S. and implements the regulation; co-regulation, Pushpika Kumari Ganegoda, G. A. (2015) ‘Let where the regulatory procedure is shared by the children be fed ethically: an explorative public and private bodies; and self-regulation, study on children’s advertising and advertising where the industry itself writes, monitors, and regulations in Sri Lanka’, Media Asia, 42(1–2), enforces the rules. Sri Lanka has few statutory pp.106–114.doi: regulations anditisonlytheRupavahinie 10.1080/01296612.2015.1072353 (Television) corporation code of advertising Fernando, T, Wockramasinghe. T, Wijethunga. that can be named as self-regulation which they L.D.L,Jeewanthi.M.K.G,Nuwansala. H.U.C,(2019) limit themselves in using children in Media Socialization of Children on Eating advertising. Many of the statutory regulations Habits: A Study of How Television Content prevailing in Sri Lanka are not much effective in Nourish Their Lives,World Journal of Social protecting the health right of the children. Even Sciences Research 6(4) p.444 though thereareregulationsaboutthefood standardizing, banningofcertainchemicals, Georgina Cairns et al., The Extent, Nature and listing out approved chemicals that could be Effects of Food Promotion to Children: A Review added to food, the awareness of the public is of the Evidence to December 2008, WHO 1, 14 less, and details of this regulations are not (2009)

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Gerard Hastings et al., The Extent, Nature and Mohomad,S.M. (2015) ‘Childhood Obesity: Effects of Food Promotion to Children: A Review Epidemiology, Determinants, and Prevention’, of the Evidence, WHO (2006); INSTITUTE OF Journal of Nutritional Disorders & Therapy, 5(2). MEDICINE OF THE NATIONAL ACADEMIES, doi: 10.4172/2161-0509.1000156. FOOD MARKETING TO CHILDREN AND YOUTH: Reeve, B & Roger, M Regulation of Food THREAT OR OPPORTUNITY? 226–318 (J. Advertising to Children in Six Jurisdictions: A Michael McGinnis et al., eds., 2006) [hereinafter Framework for Analyzing and Improving the INSTITUTE OF MEDICINE, FOOD MARKETING]. PerformanceofRegulatoryInstruments Jon Leibowitz et al., A Review of Food Marketing (February27,2018).ArizonaJournalof to Children and Adolescents F.T.C. 5 (2012) International and Comparative Law, Vol. 35, No. (discussing that in 2009 companies spent US 1, 2018; Sydney Law School Research Paper $1.8 billion on advertising to people between 18/09. Available at the ages of 2 and 17 years in the United States SSRN: https://ssrn.com/abstract=3131414 alone) Samaraweera, G.R., & Samanthi, K. (2010). Katulanda,P. , M. A. Jayawardena, M. H. Sheriff, TELEVISION ADVERTISING AND FOOD G. R. Constantine, and D. R. Matthews, DEMAND OF CHILDREN IN SRI LANKA: A CASE “Prevalence of overweight and obesity in Sri STUDY FROM GALLE DISTRICT Lankan adults,” Obesity Reviews, vol. 11, no. 11, Singh, A.S. et al., Tracking of Childhood pp. 751–756, 2010 Overweight into Adulthood: A Systematic Review Kelsey et al., supra note 4, at 1; Natalie The et of the Literature, 9 OBESITY REV. 474, 483 al., Association of Adolescent Obesity with Risk of (2008). Severe Obesity in Adulthood, 304 J. AM. MED. Somasundaram, N. et al. (2019) ‘High ASS’N 2042, 2042 (2010); Prevalence of Overweight/Obesity in Urban Sri Lisa M. Powell et al., Nutritional Content of Food Lanka: Findings from the Colombo Urban andBeverageProductsin Television Study’, Journal of Diabetes Research, 2019, pp. Advertisements Seen on Children’s Programming, 1–9. doi: 10.1155/2019/2046428 9 CHILDHOOD OBESITY 524 (2013). Sudeep, L (2017). Consumer perception on Litwin SE. Childhood Obesity and Adulthood ethics of using children in advertising. SAMVAD: Cardiovascular Disease: Quantifying the SIBM Pune Research Journal. XIII. P.36 Lifetime Cumulative Burden of Cardiovascular Wang, Y. and Lim, H. (2012) ‘The global Risk Factors. Journal of the American College of childhood obesity epidemic and the association Cardiology. (JACC). 2014;64(15):1588-90. between socio-economic status and childhood Markus Juonala et. al., Childhood Adiposity, Adult obesity’, International Review of Psychiatry. Adiposity, and Cardiovascular Risk Factors, 365 Availablat: NEW ENG. J. MED. 1876, 1882 (2011); L.J. Lloyd https://www.tandfonline.com/doi/abs/10.310 et al., Childhood Obesity and Risk of the Adult 9/09540261.2012.688195 (Accessed: 2 August Metabolic Syndrome: A Systematic Review, 36 2020). INT’L J. OBESITY 1, 1 (2012); Wickramasinghe, V. P. (2016) ‘Management of Mensink F, Schwinghammer SA, Smeets A. The Childhood Obesity: A rational approach’, Journal healthy school canteen programme: a of the Postgraduate Institute of Medicine, 2(0), p. promising interventiontomaketheschoolfood 22. doi: 10.4038/jpgim.8084. environment healthier. J Environ Public Health. WHO | Facts and figures on childhood obesity (no 2012;2012:1-8. doi:10.1155/2012/415746 date)WHO.Available at:

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law http://www.who.int/end-childhood- obesity/facts/en/ (Accessed: 25th July 2020). Ms. M.K.Geethani Jeewanthi obtained her LL.B WHO Report, Report of the Commission on and LL.M Degrees from the Faculty of Law, Ending Childhood Obesity, WHO 1, 2 (2016), University of Colombo and serving as a lecturer at the Department of Legal Studies, Open http://apps.who.int/iris/bitstream/10665/204 University of Sri Lanka. She has also completed 176/1/9789241510066_eng.pdf. the Post Graduate Diploma in Criminology and AUTHOR BIOGRAPHY Criminal Justice offered by the University of Sri Jayawardhanapura. Currently she is reading for her Mphil/PhD at the Faculty of Graduate

Studies, University of Colombo.

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Paper ID: 672 Definitional and Interpretational Approach towards Economic Development on the Word ‘Income’ under Current Laws of Income Tax: A Comparison of Sri Lanka and India

RPD Pathirana

Department of Commercial Law, Faculty of Law, University of Colombo

[email protected]

Abstract- The research paper looks at the vital role Firstly, it is necessary to examine the gradual of income tax as a major income of the country and development of the definition. The term ‘income’ impact to the economic development, through the in English is based on Common Law jurisdiction lens of interpretation. Hence, the primary aim of developed for judges’ interpretation. Towards this paper is to set out the conceptual framework the 19th century, judges formulated many rules within the parameters of its definitions. The paper identifying eight features that income must advances the argument that Sri Lanka should show. However, the main weakness of the establish an inclusive taxpayer friendly approach English based concept of income is that it even definition to effectively address many issues excludes gains on the recognition of investment relating to income tax law. assets, but does not include unrealized changes Key Words- Income, conceptual Framework, in asset values.1 interpretational spheres Most strikingly, the definitions adopted by the authorities in relating to the word ‘income’ is far I INTRODUCTION from clear and does not offer a precise In any legal context, definitions lay the foundation definition.2 In the leading case of London County of its applicability and decide its scope. The Council v Attorney General3, judiciary through its interpretations has “The question was whether the Council was bound undertaken subsequent development. By the rules to account to the Crown for the whole of the of interpretation, judges can widen its scope. Income Tax deducted from the dividend on Therefore, the paper addresses two sub research Metropolitan Stock, or only for so much as was questions. Firstly, how have both jurisdictions attributable to the sum raised by rates. That defined the concept through countries legislations question was ultimately determined in favor of and Case Law jurisprudence? Secondly, this paper the Council after two adverse decisions. A further addresses the question that, the alterations that question has now arisen. The Council is the need to be interpreted to income tax law within owners of property, which they occupy themselves these definitional and interpretational spheres. and use for their statutory purposes. It is valued at £118,000 a year, and assessed at that value II DEFINITION OF THE TERM ACROSS under Schedule A. Having paid Income Tax under JURISDICTION Schedule A in respect of this property the Council claim to recoup them by retaining an equal

amount out of so much of the Income Tax A. The Common Law Jurisdiction: Both Sri Lanka and India are based on Common Law Principles.

1 Kevin Holmes, Supra note 6, p 240 2 Ibid 3 London County Council v Attorney General 1901 AC 26

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law deducted from the dividend on Metropolitan Stock “No doubt if the Appellant had to find lodgings for as is attributable to the sum raised by rates.”4 himself he might have to pay for them. His income goes further because he is relieved from that Lord McNaughton has emphasized that, ‘Income expense. However, a person is chargeable for tax, if I may be pardoned for saying so, is a tax on Income Tax under Schedule D, as well as under Income. Therefore, if an item of money is not Schedule E., not on what saves his pocket, but on income within the meaning of the act, it is not what goes into his bank brings in nothing which subject under the IRA. In addition, income tax is a can be reckoned up as a receipt, or properly tax on income and not a tax on anything else.’5 described as income.”12 Emphasizing the uncertainty of the term; in the In AG of British Columbia V Ostrum, the Privy case of Bond V Barrow Haematite Steel Co6, Council held that, there is no way to cutting Farewell J. stated that, down the general and plain meaning of the word ‘The word ‘income’ is of such elusive import that it income. That was the argument established by cannot be defined in precise terms, which would the court with regard to this case.13 adequately meet legislative requirements.’7 In addition, Arguably, the judge did not want to restrict the ‘The expression was intended to include, and does definition and he kept it as open to include wider include, ‘all gains and profits derived from scope. Therefore, it is observed that, there is personal exertions, whether such gains and profits indeed no concise and complete form of are fixed or fluctuating, certain or precarious, expression, which would adequately serve for whatever may be the principle or basis of taxation purpose.8 calculation.’14 Judicial interpretations emerging from tax cases Further, in Vander Berghs Ltd V Clark15 and Lord has unanimously pointed out that the term Macmillan the Court held that, ‘income’ is used in the taxing statutes in its ordinary sense, except where it expressly extends The income tax Acts nowhere define ‘income any or restricts that sense. In taxation, unlike in more than they define ‘capital’, they describe economics, the term ‘income’ has been much sources of income and prescribe methods of discussed by judges of eminence. ‘The definition computing income, but what constitutes income of ‘income’ is not a term of art in the context of they discreetly refrain from saying.’16 taxation.’9Further, economists have divided the subject of income into two groups as flow of The decision in every case seeks to answer the services from wealth and human beings and flow question on income and sometimes ended by of commodities and services.10 deciding what not income is. When the nature of a receipt is not explicit, in the absence of a 11 In Tennant v Smith where, in evaluating the comprehensive definition, the true nature of the concept of income, it was held that, receipt has to be ascertained by reference to principles laid down in decided cases to distinguish income from capital. There is no

4 5 Ibid 6 Bond V Barrow Haematite Steel Co 1902 – 1Ch 353

7 Ibid 8 Ibid 9 A term of art has a particular meaning in its own special 12 Ibid context. 13 AG of British Columbia V Ostrum12 TC 586 10 William Hewett, The Definition of Income, ( vol15, American 14 Ibid E.R.,1925) 15 Vander Berghs Ltd V Clark (1935) UKHL TC_19_390 11 Tennant v Smith 1892, 3TC 158 16 Ibid

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simple definition of the words profits, which will The Sri Lankan Context fit all cases.17 The 2017 Act of Sri Lanka does not define the The income tax is a tax on income, which from word Income. Accordingly, the interpretation various sources, estimated according to sets of section 217 of the 2006 Act provides a definition pocket and the benefit which the appellant to the term ‘income’ as ‘profits or income’.23 derives from having a rent-free house provided for Similarly, the 2017 Act does not present the him by the rules.18There are three types of proper definition under the interpretation income; ‘Namely, Personal service, property and section, but enumerate sources under section five trade, profession or vocation.’19According to the to section eight. meanings, labour defines as, ‘personnel labour Accordingly, it is significant to identify that, salary or wages’ the second represents income section 3 of the 2006 Act and sections 5, to 8 of from ‘capital’ alone and the third category the 2017 Act stipulate a source – based approach; combines both ‘capital’ and ‘labour’. These income chargeable to tax. However, these categories are helping to assess the income illuminations have been further illustrated in the easily.20 next chapters of the thesis. The sources of income “The income tax, ‘whatever way it is charged, is include in the above- mentioned sections of the however, one tax. In every case, the tax is a tax on both Sri Lankan 2006 Act and 2017 Act. They are income, whatever may be the standard by which only the income from any of these sources that the income is measured under different heads.”21 can be charged to income tax.24 The above sections do not attempt to define the ‘income’, Decided cases suggest that, it is to the decided but has stated the characteristics of each cases that one must go in search of light, while source.25The lists are not an exclusive list and some case is found to turn upon its own facts. On provide a precise answer to concept of income in that point is no reliable criterion emerges, even so this regard. However, both the acts do not the decisions are useful as illustrations. The provide a wide and a precise definition of income concept of income is a very wide and vague term, alone.26 Therefore, it is observed that, there is no which has been covered in all other concepts of definition of the words ‘profits and Income’ in the Income Tax law alone.22 Sri Lankan Act, but only an enumeration of its B. A Comparison of the Definition of ‘Income’ Under sources, which is heads of income. Both Legislations

The Indian Context

17 It should be distinguished from the term ‘capital’ as In 1939, the Indian Income Tax Act defined the illuminated by Pitney J in the American case of Eichon v word ‘income’ under Section 6 (c) of section 2 of McComber.1919, 252 U.S. 189, at 206-207-“The the 1922 Act for the first time. Later, the Finance fundamental relation of capital to income has been much Act, 1955, substituted the definition and its discussed by economists. The former (Capital) Being scope expanded. Further, the 1961 Act likened to a tree on the land, and the latter (income) to the frits or crop” broadened the scope of this definition and develops the idea of the concept. According to 18 Manukriti Nandwa , ‘Top Three Concepts of Income (With Measurement’http://www.accountingnotes.net/financial- the definition of ‘income’, ‘it starts with the word statement/income-concepts/top-3-concepts-of-income-with- measurement/5302 accessed on 04 -05 -2016 23 Inland Revenue Act 2006, S. 217 19 Ibid 24 M.S.M.T. Samaratunga, The Main Principles of Income 20 Definition of All-Inclusive Income Concept’, , (a Stamford publication, 2013),Pp8- 10 ,https://www.investopedia.com/terms/a/all-inclusive- 25 The Inland Revenue Act 2006, S. 3 income-concept.asp. Accessed on 04 -05 -2016 Trade, business, profession, vacation and etc. 21 Ibid 26 Cecil Aluthwela, A critical Appraisal of some Aspects of 22 Lord Macmillan in Vander Berghs Ltd V Clark 19 TC 390 Income Tax, (A Stamford Lake Publication, 2011), Pp 3-5

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‘includes’.27 Therefore, the list is considered as an category has been specifically mentioned in the inclusive list. The reception of this principle in numerous clauses of Section 2 (24), the inclusive Indian Law is illustrated by the section 2 (24). definition of ‘income’ will only include ‘real The part of the definition is reproduced below. income’, that is, income, which has really accrued or arisen to the assesse.

“The Section 2 (24) "income" includes-(i) Profits and gains; (ii) Dividend (ii) voluntary The above provision, conferring to Indian Law, contributions received by a trust created wholly or some of the broad aspects under the concept has partly for charitable or religious purposes or by an been incorporated to the section.34 The word institution established wholly or partly for such ‘income’, ‘in the context of the 1961 Act, is an purposes [or by an association or institution expression of art, but even the Act does not attempt referred to in clause.”28 to define the term exhaustively.’35 Arguably, the definition in Section 2 It merely enumerates certain items, ‘some of which cannot ordinarily be considered as income (24) of the Act can be considered as a but are statutorily to be treated as such.’29 The comprehensive definition. expression of income does not in the context of It is very important to consider the statutory the Income Tax Act 1961, ‘mean only realisation interpretations for deep explanation as to follow of monetary benefit. Therefore, the definition of the guidelines for Sri Lankan context. Sri Lanka ‘income’ under the above section being an does not inclusive definition, the meaning of the word ‘income’ is undoubtedly very wide.’30 Whether a have such definitional approach on the concept. particular type of receipt is income or not has to It is well established that under the Indian Law, be decided having due regard to the nature of the the concept of income is an inclusive definition receipt by applying the relevant test. Thus, in and not an exhaustive definition. It is important Indian context, the well settled concepts, to perceive through case interpretations why it interpretations and meanings have been should be exhaustive. identified after the evaluation of Indian Income C. Explore the Concept under the Case Tax Law.31 The concept of income is broadly Law Jurisprudence: An Interpretational defined and interpreted by Section 2 (24). Approach ‘Hence, any kind of income earned by the assesse attracts income tax the point of earning and tax Sri Lanka law is not concerned with how the income is expended.32 The Act makes an obligation to pay tax on all income received. According to the Sri Lankan legislations has failed to provide a Indian Act, income earned legally, as well as precise definition for the word ‘income’, which is tainted income alike.’33 Unless a particular in long usage has made every one familiar with the ordinary meaning in Sri Lanka. The meaning given by usage is sufficient in most cases to 27 The Income Tax Act 1961, Ss. 2 (24) 28 Ibid distinguish between income and capital. The 29 Ibid 30 Sukumar Bhatacharya, Indian Income Tax Law and Practice, (18thedn. Indian Law House, New Delhi, 1995- 96), 1-3 34 “Income is a periodical monetary return with some sort of 31 S Narayanam, ‘The Literal Rule revisited’, (2013), vol 262, regularity. It may be recurring in nature. It may be broadly Current T.R., 57 -64 defined as the true increase in the amount of wealth which 32 Thomas Piketty & Nancy Qian, ‘Income Inequality and comes to a person during a fixed period of time”. Kanga & Progressive Income and India1986- 2015’, Palkiwala, The Law and Practice of Income Tax,Arvind P. (2009), vol 63, American E.J., 53 -62 Datar (ed) (10thedn, Sanat Printers, Haryana, 2014), 33 CIT V Thangamani 309 ITR 15 35 Ibid

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law difficulty of definition is apparent from the buildings on his tea estates as being deductible in classification of profits and income under the computing his income, which is liable to taxation. sources of the Inland Revenue Act. Therefore, The Assessor refused to allow the deduction, which with regard to the Sri Lankan Law, profits and was claimed. The appellant appealed to the income for the purpose of tax is not Commissioner of Income Tax who upheld the conterminous with the ordinary meaning of assessment of the Assessor and refused the profits and income.36 deduction for the ‘reasons given.”39

Moreover, the decisions in every case Sri Lanka seeks to answer the question, what is income and Soertz J opined that, sometimes ended by deciding what is not an income is. Therefore, most receipts are readily identifiable as being either the receipt of income ‘when ascertaining the profits or income of any or receipt of capital. Nevertheless, differentiation person from any source by deducting all outgoings of income from capital by definition is difficult. and expenses incurred in the production thereof, Therefore, a receipt is of an income or capital no allowance can be made in respect of premises nature has to be answered after considering all such as a tea-factory building employed in the relevant facts.37 Consequently, when the producing income, for depreciation by wear and nature of a receipt is not explicit in the absence of tear. Therefore, no allowance can be made in a comprehensive definition, the true nature of respect of premises such as a tea factory building the receipt has to be ascertained by reference to employed in producing income for depreciation by principles laid down in decided cases to wear and tear.’40 distinguish income from capital. In Commissioner Inland Revenue V Tea Furthermore, profits and income are used Propaganda Board41, intermixed but are not synonymous. Profits have its antithesis. There can be a loss instead “The Tea Propaganda Board money was mainly of profit. Therefore, the difference between derived from monthly contributions from the income and source of income assumes Principal Collector of out of the special importance when tax is charged income. duty levied on tea exports under Tea In the Supreme Court case of Thornhillv Propaganda Ordinance. At the hearing before the Commissioner of Income Tax, ‘was a case stated Supreme Court, it was held that the Tea for the opinion of the Supreme Court by the Board Propaganda Board was not a ‘Governmental of Review constituted under the Income Tax Institution’ within the meaning of ‘income’ under Ordinance.’38 Income Tax Ordinance. Several non – Governmental institutions received assistance from According to facts, as stated, are as follows, the Government and the contributions from the Customs Export Duties. The Tea Propaganda Ordinance did not make the Tea Propaganda “The appellant was assessed under the Income Tax Board a Government undertaking and it was not Ordinance for the year of assessment 1937-38 as liable to exemption under Income Tax Ordinance. being liable to pay a tax of Rs. 5,258.16 on a taxable The receipts from the export duty were not ‘profits’ income assessed at Rs. 19,159. The appellant within the meaning of Income Tax Ordinance. They claimed an allowance of Rs. 8,893 being the amount of the depreciation in the value of the

39 Ibid 36 E. Goonaratne, Supra note 193, p 14 40 Ibid 37 Ibid 41 Commissioner Inland Revenue V Tea Propaganda Board 3 38 Thornhillv Commissioner of Income Tax CTC Vol. 1 (1940) Cey TC 213

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law were not an advantage or pecuniary gain from resident in Ceylon; he managed the estate and business carried on by the Board.”42 sent monthly accounts to the appellant. In 1956 the appellant and the respondent desired to The question was to answer whether the terminate their association and following upon contribution made by the government to the some discussions which took place in India funds of the Board was assessable to tax as between them, a written agreement was prepared profits of business. The decision of the Court was and executed in Ceylon by an attorney for the that the contribution by the government was a appellant and by the respondent personally.” receipt of income of the Board but not a profit of business. The appellant was assessed to Ceylon Profits Tax in respect of his share of the estate for three years: In Commissioner of Income Tax V J. Cowasjee each of these assessments related to the previous Nilgiriya43 accounting year. He claimed that the respondent “The respondent assesse, who was a partner in a was liable to pay this sum under the terms of firm of architects in terms of the partnership agreement. The respondent denied the claim agreements purchased the deceased partner’s contending that agreement was limited to income share from his widow for a sum of Rs. 106,000. tax and did not extend to profits tax‘46 Provision was made, however, for monthly instalments of $ 50, which in the aggregate would almost amount to the purchase price. The The Court held that, ‘they would have done the instalments were to be paid only for a period 13 latter and that the omission to do so is consistent years. There were also other variations, such as the only with an intention that Profits tax should be firm ceased to carry on business or if the assesse – covered. In view of the above discussion, several respondent ceased to be a partner in either event observations were made based on judicial for reasons beyond his control his liability was to interpretations in Sri Lanka.’47 terminate. The assesse respondent had been The Sri Lankan Inland Revenue Act does not assessed to Income Tax and Profits Tax and define income and profit and it merely claimed the payment of $ 600 per annum to the enumerates the sources of profits and income deceased partner’s widow as deductible ‘annuities’ that is chargeable with income tax. In the absence within the meaning of the Income Tax Ordinance of any definition of what is profit or income in the 44 and the Profits Tax Act.” Act, the principles to be adopted ‘must be Therefore, the above payment was not an considered according to the general concepts and ‘annuity’ under definition of income of the meanings. Commercial principles and practices Income Tax but was of a Capital nature and and accounting standards will be applied subject therefore not deductible. to the over application of the tax law. In V.N. Shockalingam Chettiar V A.K.R. Karuppan Chettiar45“The appellant and respondent, who are India related to each other as father in law to son in law, Comparatively, number of cases in Indian law owned an estate known as the Kalugala Estate in illustrates the phenomenon of interpreting the equal shares. The appellant was residing in India word Income. This part emphasized the and only rarely visited Ceylon. The respondent was significance of the definition through selected cases. 42 Ibid 43 Ibid 44 Ibid 45V.N. Shockalingam Chettiar V A.K.R. Karuppan Chettiar, privy Council Appeal No. 30 of 1964, S.C. 517 / 1960 46 Ibid 47 Ibid

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The Supreme Court in CIT V Karthikeyan (G.R.) clauses therein are not exhaustive of the held that,‘the use of the inclusive definition is not meaning of income.’50 to restrict the meaning only to widen its In Navinchandra Mafatlal v CIT51, network.’48 “The Supreme Court observed thus: What, then, is According to the case, the ordinary, natural and grammatical meaning of ‘The assesse participated in an All India Highway the word income‘? According to the dictionary, it Motor Car Rally and on being declared a winner, means a thing that comes in‘. In the United States received an amount of Rs. 22,000 as prize money. of America and in Australia both of which also are The Income-tax officer included the prize money in English speaking countries the word income is his income for the relevant assessment year relying understood in a wide sense to include a capital upon the definition of 'income ‘in clause (24) of gain. In each of these cases very wide meaning was Section 2 of Income Tax Act. On an appeal ascribed to the word income ‘as its natural meaning. preferred by the respondent-assesse the Appellate Assistant Commissioner held that as the Rally was Under the relevant observations of learned Judges not a race, the prize money cannot be treated as deciding the case clearly indicate that such wide income within the meaning of section 2(24) (ix). meaning was put upon the word income‘ not The Tribunal on an appeal by the Revenue held because of any particular legislative practice that the Rally was not a race and as it was a test of either in the United States or in the skill and endurance, it was not a 'game' within the Commonwealth of Australia but because such was meaning of Section 2 (24) (ix). The High Court on the normal concept and connotation of the a reference at the instance of the Revenue, ordinary English word income. Its natural meaning upholding the findings of the Tribunal, observed embraces any profit or gain, which is actually that the expression 'winnings' connotes money received. The argument founded on an assumed won by betting or gambling and therefore the legislative practice being thus out of the way, there prize money not represent 'winnings' Allowing the can be no difficulty in applying its natural and Appeal, the Court held that, the expression grammatical meaning to the ordinary English 'income' must be construed in its widest sense. The word income. As already observed, the word should definition of 'income' is an inclusive one. Even if a be given its widest connotation in view of the fact receipt does not fall within sub-clause (ix) or any that it occurs in a legislative head conferring of the sub-clauses of Section 2 legislative power. Since the definition of income in Section 2(24) is an inclusive one, its ambit should (24) of the Act it may yet constitute income. The be the same as that of the word income occurring idea behind providing inclusive definition in Sec. in Entry 82 of List I of the Seventh Schedule to the 2(24) is not to limit its meaning but to widen its Constitution.”52 net.’49 In another decided case the Court held that, ‘the The case emphasized that, ‘this Court has full scope of the expression should not be limited repeatedly said that the word 'income' is of to the technical concept of income in widest amplitude and that it must be given its contradiction to capital as understood in the natural and grammatical meaning. Hence, it Income Tax Act. It is important to highlight that partakes of the nature of income and the several all receipts are not assessable to tax. The income tax authorities cannot assess all receipts; they can 48 CIT V Karthikeyan (G.R.) (1993) AIR 1671, (1993) SCR assess only those receipts that amount to income.

(3) 328 50 Ibid 51 Navinchandra Mafatlal v. CIT, AIR (1955) SC 58. 49 Ibid 52 Ibid

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Therefore, before they assess a receipt, they must Further, in Emil Webber V CIT57, the Supreme find that to be income. They cannot find so unless Court held that, they have some material to justify their finding.’53 “The definition of 'Income' in clause (24) of The profits and gains chargeable to tax under the Section 2 of the Act is an inclusive definition. It Act are those which have been either received by adds several artificial categories to the concept of the assesse or have accrued to the assesse during income but on that account, the expression the period between the first and the last day of 'income' does not lose its natural connotation. It is the year of account and are receivable. Income repeatedly said that it is difficult to define the received or income accrued is both chargeable to expression ‘income’ in precise terms. Anything, tax. It can be concluded that whether the income which can properly be described as income, is has really accrued or arisen to the assesse must taxable under the Act unless, of course, it is be judged in the light of the reality of the exempted under one or the other provision of the 54 situation. Act.”58

The main process is to follow for being ‘However, the inclusive definition adds several understood to that mater should comprehend the artificial categories to the concept of Income but judgments, which has already explained the on that accounts, the expression “income” does concept. The word income is wide and vague in not lose its natural connotation. This decision its scope. It is a word of elastic import and its makes sense, as it is obvious. It has been held that extent and sweep are not controlled or limited by the Terminology used by the parties in describing the use of words “profits and gains”. The Court a particular receipt as income or otherwise in reiterated very clearly by the cases mentioned their correspondence or the treatment by the above. parties in their accounts of the receipts as income It is expanded, no doubt, into income profits and receipts, though helpful, is not decisive of the gains but the expansion is more a matter of character of the receipt.’59 words than of substance. ‘The word “income” is of the widest amplitude and it must be given its natural and grammatical meaning.55 It is very Whether a particular type of receipt is income or clearly understand that, the word “Income” is not has to be decided having due regard to the very difficult to define than other concepts after nature of the receipt by applying the relevant researching number of cases. Thus, there is no test. Nevertheless, ‘anything, which can properly doubt that the existence of the concept is an be described as income, is taxable under the essential requirement and that this requirement Indian Act unless expressly exempted.’60 has been received in the Indian Jurisdiction. It might still be income, if it partakes of the nature 57 Emil Webber V CIT (1993) 200 ITR 483 of income. Income is not restricted to the classes 58 Ibid of receipts mentioned in the definition but also 59 Ibid includes in its ambit the meaning of the terms as 60 In Rani AmritKunwar v CIT , (1946) 14 ITR 561 generally understand.56 (All) (FB) Braund, J. observed that the simple test is whether in the ordinary parlance of language what the assesse receives is “income’ or not. One cannot dream of suggesting that every payment 53 Lal Chand Gopal Das V CIT (1963) 48 ITR 324 (India) made by one person to another is necessarily, the 54 Ibid recipient’s income, since it may be as Viscount 55 Ibid Dunedin said in Maharajkumar Gopal Saran 56 GirishAhuja& Ravi Gupta, A Compendium Of Issues On Income Tax And , (7thedn, Bharat Law House Pvt Narain Singh v CIT, (1935) 3 ITR 237 (PC), merely Ltd, New Delhi 2015),Pp 25 -30 a casual payment or as Sir George Lowndes

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It is mentioned that, ‘the Act does not provide that obligation, which has paid by the director or whatever a person receives must be regarded as other person.’65 income liable to tax.’61It may be mentioned here Moreover, the section 2 (24) of the Act is a that Section 10 of the Act enlists certain items, complete definition and it merely enumerates, which are not includible in the total income of the ‘certain items, some of which cannot ordinarily recipient. The fact that a specified receipt is be considered as income but are statutorily to be shown as exempt from income – tax may prima treated as such.’66Moving on to the other terms facie indicate that it is income, but it is not used in Section 4, the term “income” has been inclusive.62 defined in the Act in section 2(24). Instead, In Diwan Rahul Nanda vs. Deputy Commissioner of income has been defined as including a number Income Tax63, stated that of enumerated items such as profits and gains, dividend, the value of perquisites, capital gains, “Any kind of benefit or perquisite given by the winnings from lotteries, and sums received company which enriches the pocket of the director under insurance policies. The 1961 Act has or person having substantial interest in the included some very specific matters in the company is included in his with definition of income, when it is after all an regard to the Section 2(24) of the Act. However, it inclusive definition. The reason perhaps is to is further applicable on the situations when the avoid any future litigation over whether these benefit or perquisite is directly enjoyed by the items are income or not. That apart, the courts individuals referred in the said provision and for have liberally construed the concept of income those situations when sum is paid by the company and always followed this thumb rule: if anyone to a third person.”64 has earned it, it is income. Be assured that Moreover, Section 2(24) (IV) of the Income Tax whatever comes into hands because of the sweat Act, 1961, defines the term ‘perquisite’ under the of your brow or the application of your definition of Income, multifarious talents, it is going to be considered as income. A number of cases illustrate the “It has been included the value of any benefit or phenomenon of interpreting of concept of perquisite, which convertible into money or not, income within the income definition.67 obtained from a company either by a director or by a person who has a substantial interest in the company. Further, it has been incorporated that a However, the research concluded that Indian law relative of the director or such person, and any has defined the concept of income in an inclusive sum paid by any such company in respect of any way under the section 2 (24).

Analysis

suggested in the same case, a mere windfall. Such Chapter three discussed the concept of income a sweeping proposition would be absurd. Many under both countries perspectives. The profits or things have to be considered. Sukumar income under the income tax is the net profits Bhatacharya, Indian Income Tax Law And Practice, and income calculated in accordance with the (18thedn. Indian Law House, New Delhi, 1995- 96), Pp 1-3 provisions imposed by the Inland Revenue Act of 61 Chaturvedi and Pithisaria, Income Tax Law, Vol 5 (7thedn, 2004), Pp66 -67 62 Ibid 63 Diwan Rahul Nanda Vs. Deputy Commissioner of 65 Ibid Income Tax, [2008] 25 SOT 454 (Mum) at para 14. 66 Income Tax Act 1961, Ss. 2 (24) 64 Ibid 67 Ibid

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Sri Lanka and by applying the legal and is more systematically drafted and is far wider in commercial principles and practices. scope than the Sri Lankan context. Indeed, income is artificially defined to include various The Sri Lankan Inland Revenue Act does not items. Any kind of income earned by the assesse define income and profit and it merely attracts income tax at the point of earning and enumerates the sources of profits and income that tax law is not concerned with how the income is is chargeable with income tax. In the absence of expended. The latter are statutorily fixed for a any definition of what is profit or income in the specified purpose. An analysis and judgement of Act, the principles to be adopted ‘must be the facts of the cases would help to determine determined in accordance with the ordinary the different aspects of the concept of income, concepts.’ the situation of improvement was involved in The research identified that, the Indian Income those cases, and how the Courts dealt with them. Tax Act attempts to provide an inclusive Most importantly, neither the English Law, on definition under section 2 (24). ‘Section 2 (24) of which the Sri Lanka’s tax law has largely relied, the Indian Act starts with the words ‘income nor the authorities from most other jurisdictions includes’ and any kind of the income earned by provide a precise answer to concept of income in the assesse attracts income tax at the point of this regard. earning and tax law is not concerned with how the income is expended. The Act makes an obligation to pay tax on all income received. The Act This confusion could result in vagueness and can considers income earned legally as well as tainted have different meanings and interpretations at income alike. Anything which can be properly different times. Since the term ‘income’ is not described as income is taxable under the Act defined in the Act, one has to rely on its ordinary unless exempt under one or the other provisions meaning as used in society and render it of the Act.’ accordingly. Yet, in keeping this confusion in mind, one should realize that this definition in The Indian Income Tax Law has given a wide the Act and dictionaries is adequate to recognize scope and interpretations through the Act and the term ‘income’. Therefore, it is noteworthy to case law jurisprudence on the area of concept of follow the Indian cases and their interpretations income, compared to Sri Lankan Income Tax Law. for determine the different aspects. All parties who are interested in the income tax would be able to get different perspectives and concerns with relating to such explanations. It D. the Summary of the paper should be given its widest connotation in view of the fact that it occurs in a legislative head conferring legislative power. It is not the gross This paper emphasized that Sri Lankan law does receipt but only the net receipts arrived at after not define income but it merely enumerates the deducting the related expenses incurred in sources of profits and income that is chargeable connection with earning such receipts, which are with income tax. In the absence of any definition made the basis of taxation under the Indian Law. of what is profit or income in the Act, the principles to be adopted ‘must be determined in accordance with the ordinary concepts.’ Hence, under the Income tax Act, 1961 the word income has been comprehensively defined, though in an inclusive way. Therefore it is The research identified that, the Indian Income important to recommend that, Sri Lankan law Tax Act attempts to provide an inclusive should be amended with a section similar to definition under section 2 (24). With regard to 2(24) of Indian Act. Moreover, the section 2(24) the cases decided under Indian Income Tax Law,

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Paper ID: 677 Conceptualizing Local Governance in the Context of Citizen Participation: Towards a Participatory Approach of Local Government Institutions in Sri Lanka

UAT Udayanganie

Department of Public and International Law, Faculty of Law, University of Colombo

[email protected] Abstract: This paper, provides a conceptual particular, this conceptualization will assist in basis for institutionalizing citizen participation the evaluation and understanding of the in the local government system under the patterns of decentralization and citizen existing constitutional structure. To achieve this participation in local governance in Sri Lanka. objective, the study employs the assumption After discussing these issues from a theoretical that effectivemechanismofdecentralization perspective, the author examined a complex accommodates more spaces for citizens for relationshipbetweendevelopment, engaging in the process of decision making and decentralization and citizen participation in as a result, participatory democracy could be democratic local governance with specific institutionalized. In the discussion, two sub- reference to Sri Lanka. The study employs a questions need to be addressed as to how qualitative method and uses secondary sources decentralization facilitates the promotion of such as journal articles, working papers, citizenparticipationandwhycitizen participation legislation etc. is significant in the context of local government. Key Words: Participatory Democracy, Local Answering these questions, this paper seeks to Government Institutions, Decentralization advance the argument that due to weaknesses of the existing representative democratic I.INTRODUCTION system, the necessities of local communities The local government system of Sri Lanka has a have not been represented and therefore there long history which dates to the 3rd century B.C. is a requisite for an alternative mechanism In the advent of the colonialism, the British throughwhichentirelocal communities can be rulers changed the traditional system of local participated and represent their needs. The administrationwithoutconsideringthe bottom-up approach of decentralization characteristics of the home-grown system of it. facilitates the creation of such a mechanism. Even thoughthecountry wasgranted Accordingly, the paper seeks to provide an independence from the British in 1948, Sri overview, scope and applicability of the Lanka continues to live with the colonial concepts of participatory democracy and heritage of an imposed local government decentralization by reviewing their definitions system. Perceived from a policy perspective, the and critically assessing both their conceptual idea of reforming the current local government coherence and utility as realistic and policy regime has been on the political and policy tools. It seeks to analyze these concepts to agendas of the Sri Lankan Government since assess the extent to which such practices are independence. However, such reforms have not being implemented; and the problems and materialized to date. Particularly, the Chocksy challenges faced during their implementation. Commission of 1954, the Moragoda Committee This analysis facilitates to understand how, and of 1978, the Presidential Commission on under what conditions,citizenparticipationand Reforms of Local Government of 1998 and the decentralized governance can contribute to the National Policy on Local Government in 2009 more inclusive local governance system. In can be cited as important policy initiatives in

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law this regard. Nevertheless, the potential of a the democratic citizen is defined as ‘one who multilevel system of the governance to has the right(power)toshareintheofficeof empower the people and the nation is yet to be deliberating and judging with skill’. realized. Theoretically,localgovernmentsshould Accordingly, a citizen is defined as ‘one who facilitatepeople’sparticipationinlocal participates in judgingandruling’ (Winthrop administration. Though, other than electing 1978). This participation makes democrats their representatives at local government more able citizens, and participatory elections, people’s participationatthe grassroot democracy is made better because the level falls far behind when compared with other participants are made better. Aristotle countries such as India and the UK. emphasized participation by judging. The lawmaker is sovereign in theory, but the judge II.METHODOLOGY is sovereign in practice (Winthrop 1978). Local governance and participatory democracy- Tracing the historical evolution of the concept, related literature provide some guidance for the modern participatory democracy was use of different types of methodologies when developed during the 1960s and 1970s in researching issues connected with citizen America. According to Mansbridge, the term participation. Theoretical, comparative and was used for the first time as the Student for the empirical methods have all been used to Democratic Society (SDS) (1975). The whole researchlocalgovernanceandcitizen idea of the concept is that in the decision participation. It appears that there is no making process, specific limitationastothetypesofresearch onissueshavingsocialimplicationsand methodologies that can be applied to address consequences must be conducted in public and issues relating to local government institutions participative ways. Further, the revitalization and citizen participation. Arguably, this means of the concept could be seen with the new that research on issues associated with LG’s and global movement in the late 1990s and early people’s participation is an open field from a 2000s with some innovative experiences such methodological perspective. Hence, this paper as participatory budgeting in Porto Algerian purely based on doctrinal research including a Brazil. Thenewapproachoftheconceptis literature review and comparative legal concentrated on local and communitarian views research method.Asmethodsofdatacollection, of democracy by highlighting bottom- up social secondaryresourceswere mostly used and protagonism (Florida 2013). primarysourcessuchasconstitutions, legislativeenactmentswereusedwhere Moreover, the idea of Barber’s strong necessary. democracy (1984) facilitates to shape the concept in a different approach with an III.DISCUSSION inherent view. This approach identified A. ConceptualUnderstandingof democracy as ‘Politics in the participatory Participatory Democracy mode’. His approach is greatly practical due to The original view of citizen participation goes its suitability to mix with participatory back to the times of Aristotle. Modern political institutional structures. According to him, theory gives democratic participation by ‘Strong democracy tries to revitalise citizenship teaching that government is legitimate only if it without neglecting the problems of efficient originates in the consent of the governed. But government by defining democracy as a form of the socialcontracttheorythatinstitutes government in which all the people govern government signifies the surrender of natural themselves in at least some public matters at rights to govern or not to govern ourselves as least in some of the time’( Barber 1984). It is we choose (Winthrop 1978). In that approach, clear that in some phases citizen participation

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law should be encouraged but at the same time, important aspect and apart from that the there should be a balancing approach towards development of civic skills, the increase in it. Therefore, this approach provides a public engagement, and the opportunity to platformforbringingrecommendations meet and discuss neighbourhood issues and towardswaysweshouldincorporate problems are some of the other issues which participatorydemocraticmethodsintothe can be taken into consideration. legislationandtheidealstage. Following When directing the definition of Habermas on statement is justifies the central part of his idea. participatory democracy, at the level of abstract “I have insisted that strong democracy entails principles and that is characterized by the both the intimacy and the feasibility of local autonomy of the discourse, the equality of participation and the power and responsibility participants in the discourse and the openness of regional and national participation[…]This is of the discourse in more specific ways. not to say that strong democracy aspires to According to civic participation and self-government on all Pateman’sbookon‘Participationand Democratic issues at all times in every phase of government Theory’ the aim is to reconstruct a tradition in , both national and local. Rather it projects some political thought that is committed to the idea of participation some of the time on selected institutionalizing opportunities for issues. If, all of the people can participate some participation. Here, the equal opportunity to of the time in some of the responsibilities of participate in decision making becomes a governing, then strong democracy will have defining criterion of the participatory ideal as realized its aspirations” (Barber 1984). well as an institutional means for realizing this ideal. When considering all these discussions, Above explanation proves the participatory five essentials have been identified to the democracy is not a new concept that has been concept; that is promotion of a new mode of reshaped over the years per contemporary decisionmaking(deliberation);the requirements. strengthening of the direct mode of decision Concerning the process of participatory policy making; the democratization of the local level making, A.N.K.Michels& Laurence DeGraaf (local democracy);thedemocratizationof (2010) have traced the idea that citizen functionally defined units of the political system involvement has many positive effects on (segmentation);andtheimplementationof democracy and it upgrades the quality of the representation as delegation (1970). democracy. Threefold effects emphasize; more Fung & Wright in their article on Deepening responsibility for public matters, increase Democracy:InnovationsinEmpowered public engagement encourages diversity of Participatory Governance (2001) have explored opinions and contributes to the higher degree fivecasesofrecentdevelopmentsin of legitimacy of decisions. As devices of citizen participatorygovernancewhichare participation,theyemphasizecollaborative neighbourhood governance council in Chicago, governance, citizen advisory committees and WisconsinRegionaltrainingpartnership (WRTP), participatory budgeting as valuable elements of Habitat Conversation Planning under democratic decision making. Endangered Species Act, participatory budget However, it is important to consider the idea Porto Alegre, Panchayat Reforms in West presented by Dhal. He encountered, an increase Bengal and Kerala India. Considering these five in political activity among the lower socio- initiatives authors have identified the common economic classes which could lead to more concept which is called Empowered authoritarian ideas and thus to a decline in Deliberative Democracy (EDD). He further, consensus on the basic norms of democracy explains that these four reforms differ (1956). Democratic citizenship is the most

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law dramatically in the details of their design, issue The recent discourse of people-centered areas, and scope; they all aspire to deepen how development underlines the assumption that ordinary people can effectively participate in people should be the architects of their own and influence policies which directly affect their future (Burkey 1993). Sen and Nussbaum argue lives (Fung and Wright2001).Those that the role of social capital,capabilities, mechanisms are participatory because those freedom and the ability of ordinary people to were initiated based on the commitment and manage development themselves should be capacities of ordinary people to make sensible focused in this discussion (Clark 2005). Under decisions through reasoned deliberation and the capability approach provided by them, the empowered because they attempt to tie action ten capabilities are goals that fulfill or to the discussion. As he observed, the correspondtopeople’spre-political entitlements. institutional reform strategy was considered as Therefore, they say of people are entitled to the the prime success of these mechanisms. ten capabilities on the list (Nussabaum 2011). By defining them as objectives, Nussbaum John Gaventa (2001) has taken a different point highlights their politically normative character. of view on citizen participationinlocal Each of these ten practical orientations of governance. His approach is closely related to human lives must be part of the political rights of citizenship and democratic programmes of all the countries in the world governance. Concerning grass root level with variations, thresholds, particular participation, two factors are essential, the highlighting of certain particular capabilities, nature of democracy and skills and strategies etc. According to Gaventa, ‘a first key challenge for achieving it. He has pointed out six for the 21st century is the construction of new prepositions to achieve participatory relationships between ordinary people and the democracy and the six propositions and some institutions especially those of government of them are as follows; building up a new which affect their lives. relationship between ordinary people and the institutions and rebuilding relationshipbetween Based on the above investigation of the citizen and local government focused on new significance of the concept, it is suggested that forms of participation, responsiveness and by providing more spaces for citizens in the accountability (Anarchies communitarian governance process it enhances the quality of model on radical grassroot democracy and democracy while protecting the rights of the optimist conflict model) and new forms of people. Therefore, in assuring local democracy citizen engagement should be encouraged. citizen participation is placed as a core According to Gaventa, the forms participation component. hasgonebeyondits traditional approaches and it B. Participatory Democracy in Action is necessary to introduce new forms. The application of participatory democracy can It is worth quoting the idea mentioned by Clark be seen in certain mechanisms that are andStewart (Gaventa2001)that ‘Representative implementing by local government authorities. democracy and participatory democracy have One of the mechanisms is participatory been argued as mutually exclusive opposites. planning. Many countries have provided An active conception of representative institutional space for public participation democracy can be reinforced by participatory through their legislation in grass- root level. democracy all the more easily in local The State of Kerala in India has put forth a government because of its local scales and its prominent example of the People’s Plan closeness to the local communities’. This Campaign (PPC) that offeredapro-active statement reflects that participatory democracy methodology for decentralized planning with can be interpreted broader manner. direct participation by citizens. Many other

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law countries including South Africa, Ghana, Uganda politicalpartiesandinstitutionsthatare and Tanzania are some of the countries which responsible for the design of decentralization experiencing community based planning. policies. He rationalized his examination of this factor on three variables: whether the legal Participatory budgeting is another instance of framework and the informal relationship the applicability of PD. It is a different way to established allows for future changes within manage public money and to engage people in decentralizationpolicies,thesequenceof government and a democratic process in which decentralization;andtheeconomic community members directly decide how to circumstances under which national and sub- spendpartofapublicbudget.Itenables taxpayers national governments negotiate. to work with the government to make the budget decisions that affect Local government can be defined as ‘a sub- nationallevelofgovernment,whichhas Mini Publics are one of the mechanisms which jurisdiction over a limited range of state provide an opportunity for citizens to deal with functions, within a defined geographical area public issues. The concept of mini-public was which is part of a larger territory. The term first proposed by Robert Dahl in 1989. refers to the institution, or structures, which However, the roots of such processes can be exercises authority or carry out governmental traced back to the Greek political system when functions at the local level. On the other hand, positions of political authority, including the the term local governance refers the process selection of magistrates and council were often through which public choice is determined, made by random selection. It is the random policies formulated and decisions are made and selection of citizens which is one of the defining executed at the local level, and to the roles and features of the mini-public. Escobar and Elstub relationships between the various stakeholders (2017) identified several features which which make up the society’( Mirror 2002). characterize mini publics. Firstly, the purpose of the approach being to gather together a These two concepts are different. ‘microcosm of the public’ with each citizen Decentralization reinforces and legitimizes local having the same chance of being selected to governance processes when it is correctly done. take part, secondly, those that take part are Therefore, the decentralization is identified as a remunerated for their efforts, thirdly, facilitator to effective local governance. In line discussions are facilitated and finally a number with the main objective of the research, further of so-called experts provide evidence to the discussionrelatestothelinkbetween participants who in turn question (or cross decentralizationandtwosignificantissues examine) them. Goodin (2008) described them whicharelocaldevelopmentandcitizen asdemocraticinnovationsconsistingof ordinary, empowerment. nonpartisan members of the public designed to D. DecentralisationinSriLanka:A General be ‘groups small enough to be Overview genuinelydeliberativeandrepresentative enough to be genuinely democratic’. These The public debate over local government in Sri examples depict a picture as to how to apply PD Lanka has been dominated by the ethnic in action. conflict in the country. For the last 20 years, efforts to change and reform local governments C. DecentralizationandLocal in the country have focused on devolution as a Government means to provide increased representation for Gomez (2003) proposes that a cross- regional the Sri Lankan Tamil ethnic minority and analysis of decentralization process should be resolve their demand for an independent state. based on vertical and horizontal relationships As a result, there have been few efforts over the which can be established among the executive, last fifteen years to improve local

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law representation and development. Although amendmenttotheConstitutionaimsto there have been many changes in local introduceanewsystemofmulti-level governance, government over the last 25 years most have it has become a superimposition of new been cosmetic in nature, changing the names of devolved structure on an existing de- offices, and councils but having little impact on concentrated one. Ambiguity in the division of the power relations between the national powers and functions has allowed the centre to government and local governments or in the conquer the powers of local authorities. As a efficiency of local governments. Robert C. Oberst result, both provincial councils and sub- (2003) national governance system (Local Government) have become complex and It is significant to examine the applicability of fragmented. the concept of decentralisation under the existing legal framework. After the 13th 1. Problematizing citizen participation amendment to the Constitution, provincial in Local Government Councils were established as the second tier of One of the basic justifications for the government within the unitary decentralization is building up a close framework.Close examination of this devolution relationship with other levels of governments process reveals that the functions of Provincial such as provincial and local governments by Councils were not considered as a whole. creating a sophisticated environment. Citizens Though the process of devolution is a matter of know their problems better and represent the addressing through the entire system of best channel for people to take part in the governance, it did not consider other related decision-making process that affects their daily matters rather than providing a solution to the lives. Local level participation will provide ethnic problem. As a result, local government citizens as agents to claim their rightful places became the subordinate institutions of as makers and shapers of development Provincial Councils initiatives rather than users and choosers withoutconferringanyadditionalpowers. (Cornwall and Gaventa 2001). Sneddon and However, constitutional recognition was gained Fox argue that the broadening of State initiated through a statutory provision. Item 04 of the forums of participation ‘to more overtly Provincial List, Local government specify the political actions’ and connecting geographically scope of devolution to provinces. However, 13th specific local state-society engagement amendment would seem to have marginalised practices to wider political economic processes the local authorities in the intergovernmental at the national and transnational level. The contexts of multilevel governance it established. arguments that call for increasing citizen The ‘provincialization’ of the supervision of participation related to local governance are local authorities did not lead to a service threefold. Firstly, it is argued that it will delivery relationship with the provincial improve the efficiency and efficacy of public council. The establishment of a provincial tier services. Secondly, it means to render local was essentially a transfer of state powers government more accountable. Finally, it should hitherto exercised at the national level to the deepen democracy as it will reinforce new governance entities at the provincial level. representative democratic institutions with However, setting out the role and functions of participatory forms (Gaventa and Valderrama the primary level of government comprised of 1999). Participation should be aligned to the the local authorities is neglected in the process notion of citizenship, social justice and of devolution. development as social change rather than its use as a technical fix for problems of poverty These issues lead to failing the system of local and inequality. The implementation of government in Sri Lanka. Though the 13th

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law approaches to enhance the citizen participation citizens’ legal basis to demand to be involved in within the local planning, budgeting and administration of local sphereisvariedindifferentscenarios. government. Therefore,itisproblematictoconceptualize Sri Lankan legal framework on local governance (Veltmeyer 1997). does not provide a proper institutional and However,therepresentativegovernment legal space for citizen participation in the gradually neglected active citizenship. People decision making process. The only decision they becameactiveduringelectiontimeand thereafter can take at the election when they are choosing they are totally neglected by their elected their representatives. Constitution as supreme representatives from the governance law of the country does not guarantee the process.Inarepresentativedemocracy, theorists participation of marginalised people in the like, Dhal, Berelson and Eckstein argue for the country. Similarly, the relevant legislation of importance of the electoral system in local authorities is silent on this issue. Though, maintaining the democratic process. Dhal the discussion had emerged in the recent past, asserts that ordinary citizens can have some it also was limited for a debate only. In this sort of control over the Universal Suffrage context, designing a new legal framework for through the vote. Though Bentham and Mill citizen participation in local have the same arguments, Mill has gone beyond governanceisimmenselyrelevantand important that and argued for the need to have a well- for securing democratic governance in Sri informed citizenry which was very active in Lanka. Specially, the paper advocates to public life-in voting, in local government and institutionalisingparticipatoryformsin jury service. development planning and budgeting. According to Rousseau, democracy depends on 2. Conceptualizing Decentralization and the participation of each citizen in the process CitizenParticipationinLocal of decision making. He argues that the relations Governance in Sri Lanka: An analysis established between citizen and the state 2.1 Analysis under the Constitution institutions were absolutely crucial for the democratic process. Therefore, citizens must be The well-designed constitution might help educatedtoparticipate. Cole’smodelof democratic institutions to survive, whereas a participatory democracy was based on a badly designed Constitution might contribute to vertical and horizontal structure of the breakdown of democratic institutions. The government, which had to be, organized ‘from preamble of the constitution set out the goals of the grass roots upwards and (be) participatory the constitution. According to the preamble of at all levels in all its aspects’. Further, he theSriLankanConstitution,following emphasizes that the purpose of the vertical aspirationsshouldbefulfilled;Strengthens structure was the control of the economy and institutions of governance; assures a wider the horizontal structure encouraged the sharing of power; enshrines democratic values, participation of whole society (Pateman 1970). social justice and human rights; facilitates Therefore, participatory forms should carefully economic, social and cultural advancement; and institutionalize when designing the legal promotes peace, ethnic harmony and good framework for it. governance.Ifweprovideabroader interpretation of the phrase which ‘strengthens Legal and policy frameworks for participation institutions of governance’, it will justify the are considered as an important aspect or central argument of the thesis. Further, the enabling conditions for interaction between preamble providesthatSriLankaisa Democratic citizen and local government (McGee and LOGO Socialist Republic. The opening words of the 2003). This legal framework work will provide preamble, ‘We the people of Sri Lanka’ signify

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law that the power is granted by them, and are to be issue yet. Republicanism simply means that the exercised directly on them and for their benefit. supreme power rests in the body of citizens This raises a question that is all the entitled to vote and exercised by constitutional provisions to cover the needs and representatives they elect directly or indirectly interests of entire Sri Lankans or is it for the and by an elected or nominated president. class of people who have drafted. The Republicanism as an ideology will, therefore, be underpinning concept of social contract theory considered as being centrally concerned with is upheld by the Constitution. However, the ‘political participation, civic virtue and mixed question is whether the preamble is a part of constitution’ (Laborde and Maynor 2005). the constitution or not. In search of an answer However, the ultimate goal of the system was to this question, Sri Lanka not simply to encourage the doesnotclearlyprovideanansweror actofcivicinvolvementthroughpolitical interpretation for this. participation, which purely served as ‘a means or an intermediate end’ (Brett and Bleakley Generally, Preambles often outline a society’s 2006). Though, the framers did not define the fundamental goals. These may be universal word ‘republic’ they undoubtedly meant a form objectives, such as the advancement of justice, that relies on the consent of the people and fraternity, and human rights; economic goals, function throughrepresentativeinstitutionsand suchasnurturingasocialistagendaor advancing a distinguished form of monarchy and free market economy; or others, such as aristocracy. maintaining the union (Orgad 2010) . Article 3 of the Constitution designates the But,undertheIndianconstitutional sovereignty of the people and Article 4 sets out jurisprudence, in Kesavananda Bharathi (1973 4 the exercise of sovereignty. It may be argued SCC 225), the Supreme Court held that the that the phrase ‘The people’ mentioned in the preamble was as much a part of the preamble of the constitution further re affirmed Constitution as any other provision therein. The when reading Article 3 and 4 together. It has supreme court of India enunciated the doctrine stated that ‘In the Republic of Sri Lanka of the basic structure of the Indian Constitution sovereignty is in the People and is inalienable. in this case. It was decided that there are Sovereignty includes the powers of certain principles within the framework of the government, fundamental rights and the Indian Constitution which are inviolable and franchise.’ These provisions underlie that hence cannot be amended by the Parliament. popular sovereignty is the basis of Sri Lanka’s These principles were commonly termed as constitutional system. The concept asserts that Basic Structure. sovereign power is vested in the people and In the light discussed above aims, it can be that those chosen to govern, as trustees of such argued that Constitution accommodates the power, must exercise it in conformity with the establishmentof amechanismfor general will. Benjamin Franklin expressed the decentralisationwhileassuringcitizen concept when he wrote, ‘in free governments, participation in the decision making process in the rulers are the servants and the people their local governance in order to provide a value superiors and sovereigns’ (Jefferson 2018). In coherent based interpretation to enshrine its describing how Americans attempted to apply vales. However, it is doubtful whether values this doctrine prior to the territorial struggle set out in the preamble are legally binding or over slavery that led to the Civil War, political not in the Sri Lankan context. scientist Donald S. Lutz noted the variety of Therefore, though it is necessary to assure American applications: To speak of democratic and republican values under the popularsovereigntyistoplaceultimate authority Constitution, enforceability has become an in the people. There are a variety of ways in

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law which sovereignty may be expressed. It may be 2.3 Analysisundertheinstitutional framework immediate in the sense that the people make Decentralized structure of the political system the law themselves, or mediated through in Sri Lanka, especially with regard to the representatives who are subject to election and policies and institutions at the local level and recall; it may be ultimate in the sense that the their capacitiestomanage diversity,tomitigate people have a negative or veto over legislation, ethno-political tensions and to accommodate or it may be something much less dramatic. In the interests of different identity groups have short, popular sovereignty covers a multitude of not accomplished its primary objectives institutional possibilities. In each case, however, (Bigdon 2003). Therefore,itrequiresaproper popular sovereignty assumes the existence of institutionalization, which means strong local some form of popular consent, and it is for this administration,strongdemocratic reason that every definition of republican representativeinstitutions andvibrantcivil government implies a theory of consent (Lutz society. One of the main problems associated 1980). with the institutional structure is that there is 2.2 Analysis under the legislative framework no space to obtain the citizen’s contribution in the governance e process. Though, it has Local government system in Sri Lanka is mainly recognized as a significant feature, any reform based on three major legislations which are does not attempt to establish such an Municipal Council Ordinance, Urban Councils institutional flat form. In this background, it is Ordinance and Act. However, reasonably argued that after voting, people exceptPradeshiyaSabhaActothertwo legislation have deviated from the institution and their dated back colonial period. Except for few general will not get the necessary amendments, there were no substantive representation. amendmentswithregardstopowerand functions of the Councils. These two legislation do not On the other hand, local representatives have to support to better decentralization due to its depend on financial support provided by the narrow scope of powers and functions. Due to Central Government and Provincial Councils. the out dated nature of major legislation, they Therefore, sometimes, they cannot implement do not have any capacity to promote local development progrmmes according to the economic development or citizen participation. requirements of local communities. In such a In service delivery aspect, they are success to situation social contract is under a threat and some extent. no properagreementexistsbetweenthe UnderthePradeshiyaSabhaAct1987,its government and citizens. Institutional structure preamble has stated that ‘…Pradeshiya Sabhas is key to assure a good contract between the with a view to provide greater opportunities for government and the citizen. the people to participate effectively in decision- 3. TowardsParticipatoryLocal making process relating to administrative and Governance: Issues in Sri Lanka developmentactivitiesatalocallevel;…’. According to the preamble, one of its prime Local governance is widely recognized as the objectives was to enhance citizen participation best training ground in which the citizen can in the development related decision making learn the art of governance through their own process. However, the weakness was the Act experiences and the reality that exists around doesnotclearlyarticulatethenormative them. Local government which is the third layer background relatedtoit.Therefore,itis submitted of country’s administration is also always, in all that the principal legislation should circumstances,consideredastheimportant beamendedinordertoincludenecessary vehicle and the only the means to provide state principles of autonomous local government. benefits and services to the local citizens In fact, “no political system is considered complete and

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law democratic if it does not have the system of councils.Inaddition, various other central local governance government establishments such as District Secretariat, Divisional Secretariat, and Grama -Havenga-2002,UniversityofPretoria Niladari are directly involved in local (Wijesundara 2017) government affairs undermining the Abelson proposes four key basic elements of autonomous status of local government deliberative participation; (1) representation; institutions. This dualistic control of the Centre (2) structure of procedure; (3) Information; and Provincial Council not only undermines, but (4)The outcomes and decision arising from the also defeats the fundamental objectives of the process (Abelson et al 2003). What is missing is Local Government system. Therefore,itis argued public involvement in project implementation that the role of the Central Government which is important to make sure what is being shouldbebasedonthe‘Principle of Subsidiarity’ implemented is decided in accordance with with the direct and continuous involvement of decisions taken in the participatory meetings. citizens in the process of decision-making at The corollary is being the gradual emergence local levels. However, this issue has never been and integration of the voices of ultimate challenged even before the Supreme Court of beneficiaries of development plans; local Sri Lanka. citizen’s voices, their participation and into the Other weaknesses of the existinglocal decision making process. Such relationships government system in Sri Lanka include sharpen the active civic participation or political dependence for resources, lack of engagements in the decision making process of dynamism, lack of accountability and development activities while opening doors for responsiveness as well as the absence of participatory governance. peoples’participation. Whatever theoretical Perhapsthebestplacetoobserveand understand underpinnings are embedded in the system of the impact with the broad forms of active local government, Sri Lanka has not developed engagement by citizens in policy formulation a culture of governance with a pre-requisite of approval, implementation, monitoring and citizen’s participation (Social Scientists overall decision making is at the local level, Association 2011). where the concerns of the ‘grassroots’ Though it should be a voice of all social and orlocalityintersectmostdirectlywith governance ethnic groups in the society, SriLanka and the government. Hence, local government represents the lowest participation rate of as the most suitable administrative women in local politics (Kodikara 2009) and is structureanddecentralizationasthemost less than 2% (Women and Media Collective powerfulreformingmechanismopened 2015). In the present framework, estate Tamil influential space for the wider and deeper workers and indigenous community people are active participation of citizens at the local level, severely ignored by the system. Against this and would laythemostviableand sustainable backdrop, it is necessary to investigate whether foundationforoveralldevelopmentefforts. the local government has the potential to However,participatorygovernancewillnot facilitate social transformation and provide become a reality if there is no distribution of opportunities for local communities, as well as resources to the local communities in parallel. marginalised, and socially-excluded groups to Withinahighlycentralisedgovernment structure, enjoy equal benefits of democracy through local government has been subjected to the promoting their participation in the decision dominance of the centre in Sri Lanka. At makingprocess.Arguably,theexisting framework present, it is an item under the list of Provincial of local government institutions in Sri Lanka Council. Therefore, local governments are to be does not serve this purpose. In this context, it is controlled and supervised by the provincial

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law essential to provide a legal and policy democracy is established, participatory framework for ensuring citizen participation at approaches are essential. local level. REFERENCES IV.CONCLUSION Abelson et al, J. (2003). Deliberations about Autonomy, accountability and citizen Deliberative Methods: issues in the design and participation are core components of local evaluation of public participation process. democracy.Both representative and Social Science and Medicine. 244 participatory democracy provides a room for Barber,B.R.(1984).StrongDemocracy: strengthening local democracy. An examination Participatory Politics for a New Age. Berkeley, of the applicability of both concepts revealed University of California Press.1 that they have their own merits and demerits. Further, the discussion proved that Bigdon, C. (2003). Decentralization, Federalism representative democracy in itself has failed to and Ethnic Conflict in Sri Lanka An Assessment ensure local democracy by accommodating of Federal Proposals. Devolution Policy and the citizens to involve decision making process. Realities of Recognition of Minorities at the Local Level. Heidelberg Papers in South Asian While recognizing the valuable contribution and Comparative Politics. Working Paper No.14. made especially local government and 14-19 participatory democracy scholars, the following two observations can be drawn in light of the Brett A.S. & Bleakley, H. (ed.). (2006). overall review which is conducted in this paper Rethinking the foundations of modern political in the context of institutionalizing participatory thought. Cambridge University Press. 42 democracy. First, the representative democracy Burkey, S. (1993). People first: a guide to self- has failed to involve citizens in the decision reliant, participatory rural development making process at the local level within its .London: Zed Books traditional setting and institutional framework Chambers. R. (1997). Whose reality counts? suggested for accommodating citizens to Putting the first last .London: Intermediate involve with it. Second, the existing literature Technology Publications provides evidence for the need to search for a suitable approach for institutionalizing citizen Clark, D.A. The Capability Approach: Its participationandparticipatorydemocracy builds Development,CritiquesandRecent a foundation for providing legal, policy Advances.GlobalPovertyReaserchGroup. institutional framework. Social Contract Theory Working Paper Series-32.3 has been integrated by the Constitution of Sri Clarke,M and Stewart, J.(1998).Community Lanka and it is articulated as people’s Governance, Community Leadership and the New sovereignty. Hence, through a decentralization Local Government, University of Birmingham, mechanism the power can be enjoyed by the Institute of Local Government Studies citizens either by themselves or by their representatives. Therefore, the legal framework Cornwall A & Gaventa, J. (2001). Bridging the is based on both participatory and Gap:Citizenship,Participationand representative democratic approach is not Accountability. PLA Notes 40.32-35 contradicted with the constitutional setting. Dhal, R.A. (1956). A Preface to Democratic In light of these theoretical underpinnings, this Theory. Chicago: The University of Chicago paper advanced the need for adopting a Press .51 cooperative approach for strengthening the Escobar, O and Elstub, S. (2017). Forms of Mini- local government system for institutionalizing publics:Anintroductiontodeliberative citizen participation. Hence, representative

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law innovations in democratic practice. Research Goodin,R.E.(2008). Innovating Democracy: andDevelopmentNote.4.1 Democratic Theory and Practice after the Jefferson, T. Florida, A, 2013, Participatory Democracy vs. (http://etext.virginia.edu/jefferson/quotations Deliberative Democracy: Elements for a /jeff0300.htm ) UVa Library Possible Theoretical Genealogy Two Histories. Kodikara, C. (2009). The Struggle for Equal Some intersections 07th ECPR General Political Representation of Women in Sri Lanka, Conference: Four Decades of Democratic A Stocktaking Report for the Ministry of Child Innovation Research: Revisiting Theories, Development and Women’s Empowerment and Concepts and Methods, Historising Deliberative the United Nations Development Programme.13 Democracy Laborde,C.&Maynor,J(ed).(2005). Fung,A&Wright,E.O.(2001).Deepening Republicanism and political theory. John Wiley & Democracy:InnovationsinEmpowered Sons.3 Participatory Governance, Politics & Society, vol.29 No.1.5-41 Lutz, D.S. (1980).Popular Consent and Popular Control: Whig Political Theory in the Early State Gaventa J and Valderrrama, C. (1999). Constitutions. Louisiana State Univ. Press.38 Participation, Citizenship and Local Governance’ Mansbridge,J.1975.TheLimitsof [online]Backgroundnotepreparedfor workshop Friendship.In:Pennock,J.R&Chapman, on ‘Strengthening Participation in Local J.Weds.ParticipationinPolitics.New York: Lieber- Governance’, Institute of Development Studies Atherton,, 246-275 frameworks for citizen participation: Synthesis Gaventa,J.(2001). Towards Participatory Local report. Governance: Six Prepositions for Discussion. the Ford Foundation, LOGO Program Officers' Michels A.N.K & Graaf,L.D.(2010). Examining Retreat, Buxted Park, Sussex, England, June 13 - Citizen Participation: Local Participatory Policy 15, 2001. The workshop was carried out in Making and Democracy, Local Government conjunction with the IDS Learning Initiative on Studies.Vol.36 No.04.1 LocalGovernanceNetwork Mirror, K.L (2002). Advantages and (LogoLink) Municipal Governance: Suggested Approaches Nussbaum, M. (2011). Creating Capabilities: for Cross Regional Analysis. Studies in The Human Development Approach, Cambridge Comparative International Development. Vol.38 Harvard University Press.169 No. 3. 57‐80

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Oberst, R.C. (2003). Decentralization and Local increase.(2015). Women and Media Collective. Government in Sri Lanka, Local Democracy and Research International.115 Veltmeyer, H. (1997). Decentralization as the Olsen, H.B. (2007). Concept Paper on InstitutionalBasisforCommunityBased Decentralization and Local Governance.8 Participatory Development: The Latin American BudgetPracticesforTransparentand Orgad, L. (2010).The Preamble in Constitutional AccountableLocalGovernance.Governance Interpretation. The Author 2010. Oxford Programme. Centre for Policy Alternatives Sri University Press and New York University Lanka. Theory, Cambridge University Press Cambridge Winthrop, D. Winter 1978. Aristotle on Policy Brief on Democracy and Governance 1. Participatory Democracy. Polity. Vol 11(02), (2011) Social Scientist Association .4 153 Political Representation of Women at Local Government–Towardsensuring 30%

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Poster Session

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Paper ID: 23 Way towards Re-Introducing Criminal Defamation in Digital Diplomacy Affecting National Security: A Comparative Analysis with India

VP Liyanage# and DAM Supunika

Faculty of Law, General Sir John Kotelawala Defence University

#[email protected] Abstract— At present, defamation in Digital while protecting the national security of the Diplomacy which is also known as cyber State and balancing strong inter-state diplomacy or E-Diplomacy has become a relationships within digital diplomacy at least significant issue due to its liberty and speedy to a certain extent. dissemination of expressions in real time Keywords— Defamation, Digital Diplomacy, regardless of their validity. Thus, this research National Security aims at finding out the possibility of re- introducing the statutory right of criminal I. INTRODUCTION defamation in Sri Lanka regarding digital “Let us never negotiate out of fear, but let us diplomacy affecting national security. The never fear to negotiate.” objectives of this research involves identifying -John F. Kennedy- whether defamatory statements which affect the national security in digital diplomacy could Diplomacy is a crucial element which ‘allows a be covered by reintroducing criminal statetoaccomplishtheirforeignpolicy defamation laws to the existing legal framework objectivesandcoordinatetheirendeavour of Sri Lanka and to introduce necessary through dialogue and negotiations to influence amendments to the existing legal regime to fill the behaviour and subsequent decisions of the gaps in the current system of law. The foreign governments.’1 At present, it has methodology of this research is a combination evolved into a digital platform by way of so- of Black-letter methodology and the called digital diplomacy. This comparative research methodology. These couldbeconsideredasa strengthening point in methodologies are used in order to provide a traditional diplomacy. Digital diplomacy means descriptive legal analysis on the area. Moreover, the utilization of digital tools of communication this researchwouldemployaqualitative analysis (which is also referred to as social media) by of primary data including Constitutional diplomats to communicate with each other and provisions, Penal Code provisions, the also with the general Computer Crimes Act and judicial decisions and public,2throughvirtualcommunications secondary data of journal articles, books and methodswherestakeholdersbuildcomplex the internet. Additionally, this research will relationships among each other, even before discuss the Indian legal regime relating to the the physical presence of them. Furthermore, it said subject area to highlight the differences in has effectively minimizedtheexclusivepolicy the Sri Lankan and Indian legal regimes. The control of States and created a platform for studyindicatesthesignificanceof reincorporating people to express their opinions directly and in criminal defamation laws with necessary amendments to the Sri Lankan legal system with a view of addressing the prevailing issues relating to digital diplomacy affecting national 1 Ross, A.. Digital Diplomacy and US Foreign Policy. Journal of Diplomacy 6(3-4): 451-455. security. Finally, the study concludes providing 2 Lewis, D.. Digital Diplomacy. Gateway House. effective recommendations to the said issue accessed 28 May 2020.

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law real time3 towardsgoodgovernance by introducinganexpressrighttocriminal incorporating a common pool of ideology of the defamation relating to issues arising with generalpublicwithoutfollowingthe dictatorship regard to national security in digital platforms. ideology. II. METHODOLOGYANDEXPERIMENTAL For instance, in India, the Indian Foreign DESIGN Secretary handles their official Twitter accounts Theresearchmethodologywouldbea to clarify the questions and take suggestions as combination of Black-Letter Methodology and well as to interact with people who want to let Comparative Research Methodology. Under them know the information about family this, a comparative analysis between Sri Lanka members who were stuck in Libya. And as a and Indian jurisdictions is conducted in order to result, 18,000 Indian citizens were rescued distinguish the concepts in law. Moreover, the from Libya during the 2011 civil war. Here, research would employ a qualitative analysis of Prime Minister Narendra Modi has called his primary data such as constitutional provisions, ambassadors to “remain ahead of the curve on other relevant statutory provisions and judicial digital diplomacy”4 because of its aspect of decisions and secondary data of journal articles, massive beneficiality towards the unpredictable books, research papers and the online sources. situations that arise between inter States, even sometimes States are reluctant to use digital Specifically, the Sri Lankan context is analyzed diplomacy due to its risks or the challenges that based on the primary sources including the they have to face by using it. Moreover, the 1978 Constitution, Penal Code No. 2 of 1883 recent proposed Agreement between Sri Lanka and the Computer Crimes Act No.24 of 2007, and USA which is called as the Millennium whereas the Indian context is analysed Challenge Corporation Agreement led to a wide referring the Indian Constitution 1950, the publicdiscussionwhichresultedin dissemination Indian Penal Code Act No.45 of 1860 and the of information in digital platforms via videos, Indian Code of Criminal Procedure 1973. posts, articles etc on the aftermath of the The extent of this research is limited only to the Agreement if the proposed Agreement was to Sri Lankan and Indian jurisdictions. Moreover, be executed. This resulted in reconsideration of onlyalimitednumberofjudicial pronouncements the decision of signing the said Agreement will be discussed in both the Sri Lankan and because it highlighted the adverse impacts to Indian contexts, because the research area is the national objective, sovereignty and national broad. Another limitation is that the security which ultimately made the proposed researchislimitedtotheBlack-Letter Agreement rendered inoperative. MethodologyandComparativeResearch Therefore, Sri Lanka, being a middle income Methodology. country can get the full benefit out of its cost III. RESULTS AND DISCUSSION efficiency, if Sri Lanka has strong legal A. Effect of defamatory statements in Digital safeguards. Furthermore, when analysing the diplomacy Sri Lankan domestic legal system, the criminal defamation laws which had been repealed from At present, digital diplomacy has become an the Penal Code has led to the necessity of re- emerging trend involving both merits and demerits. On one hand, it facilitates two ways 3 Jayatilaka,C. The Effects of Digital Diplomacy on communication, creates open conversations International Relations: Lessons for Sri Lanka, through social media platforms such as Twitter, accessed 28 May 2020. etc which pave the way for a State to 4 Lewis, D.. Digital Diplomacy. Gateway House. communicate withboththelocalandinternational accessed 30 May 2020.

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law community, extend diplomatic networks and (a) of the Constitution,7 it will affect not only the relationships,leadstotransparencyand national security, but also the decreases financial and other related costs. And breakdownoflonglastinginter-state as a small state, Sri Lanka can reduce the relationships among nations, because of their financial cost when executing foreign policies as lack of knowledge about the risks involved in well as by promoting national interest to the digital platforms. It may lead to complex crises internationalcommunitywhilegradually in relation to the physical war, even though the influencing public opinion. root causes might occur in the virtual environment. On the other hand, best practices on digital diplomacy involve many challenges including For instance, recently, the former Minister of confidential information leakage, hacking of the Finance has tweeted stating that “Pictures from accounts, user anonymity, accountability of the UL 504 from London taking passengers to information and dissemination of digital Shanghai via Colombo: the Sri Lankan crew content within a short period of time in a seen posing with the Chinese flag! The question massive community regardless of their is why China did not choose one of their own geographical location and validity of the airlines to carry their citizens home. They have information.. The scandal of WikiLeaks is over a dozen international carriers!”8 For illustrative of this.5 In this case, WikiLeaks instance, this statement might adversely affect published secret files which included some of a the long lasting inter-state relationships with massive collection of confidential emails from China based on the subjective interpretations of Syrian government officials and an overview of the general public. Further, this might affect U.S. military detention policies. This was more because the person who had tweeted the criticized by former President Barack Obama as above statement is one of the credible political a threat to the U.S. national security.6 Thus, at figures in the country. As a result it may present modern diplomacy is facing many adversely affect the national security of the changes at a fast rate which ultimately will country which might lead to inter-state wars disruptively affect the national security and between countries. inter-state relationships between States, if Moreover, at present there are many instances digital diplomacy is not maintained properly. relating to creating and attempting to trend Moreover, this will also affect international hashtagsrelatingtotheLTTEterrorist movement politics and the public will try to act as virtual such as #eelam ,#eelamlibrary, #backtoeelam diplomats by influencing diplomacy etc by LTTE friendly diaspora community , even subjectively, because of their own experience, though the Sri Lankan Military had successfully educational background, age and gender etc defeated the said terrorist group more than 10 through digital platforms, with groundless years ago. Therefore, the said LTTE movement arguments and opinions which will lead to might arise strongly in the digital platform by conflict of national interest. way of a bottom up approach in near future Moreover, if the general public tries to respond which may be a challenge to Sri toinformation relatingtonationalinterest Lanka’snationalsecurity.The Republic of Kosovo according to their own perspectives by going would be illustrative of this. It being a newest beyond the limitations specified in Article 14(1) middle income country and having lack of state recognition in the international arena after declaration of its independency from Serbia, 5 Wikipedia, WikiLeaks, accessed 28 May 2020 7 The Constitution of the Democratic Socialist Republic of 6 Michael Ray,‘WikiLeaks’, Encyclopaedia Britannica (edn Sri Lanka 1978, Art.14(1)(a). 2020) 8https://twitter.com/mangalalk/status/12503242454747 accessed 28 May 2020. 54560?lang=en.

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law has acquired through part of their requires to be made or published opinion governmental digital campaign which is led by expressed in good faith respecting the conduct individuals & non-state actors by way of of a public servant and touching any public creating digital content such as videos, question and publication of true reports of hashtags, blog post related to images, courts. Section 500 of the Penal Code11 on the landmarks information etc according to their other hand provides for the punishment for interests and passion as well as pointing out the defamation which states that whoever defames location as State in online maps in order to anothershallbepunishedwithsimple acknowledge the international community imprisonment for a term which may extend to positively about the existence of Kosovo’s two years or with fine or with both highlighting identity as an independent that criminal defamation has been recognized Statewhileallowingtheinternational community in India. to generate it in digital platform instead of high Article 19(1) (a) of the Indian Constitution12 costly diplomatic methods to gain state guarantees the right to freedom and expression recognition. Moreover, it is crystal clear that of citizens of India. Simultaneously, Article means of digital diplomacy is strong enough to 19(2) confers certain restrictions to be imposed create a revolutionary footprint either by on all fundamental rights including freedom of building up a nation or destroying a nation. speech and expression. These restrictions relate Thus, itisnecessarytoprovideeffective to “interest of sovereignty and integrity of India, recommendations to address the said issue security of state and friendly relations with under the concept of defamatory publications to foreign states.”13 Furthermore, according to avoid adverse interferences to the national Section 199(1) of the Indian Code of Criminal security. Procedure,14 “no court shall take cognizance of B. Indian legal regime relating to defamation an offence punishable under Chapter XXI of the and digital diplomacy Indian Penal Code except upon a complaint made by a person aggrieved by the offence.”15 India is a country which recognizes Further, as per the Section 199(2), if an offence criminalizing falling under Chapter XXI of the Indian Penal defamationintheirPenalCode.Themain Code is committed against a person who is the argument was whether defamation should be President, Vice-President, Governor of a State, considered as a wrong which falls under the Administrator of a Union territory or a Minister category of civil, criminal or both.9 Section 499 of the Union or of a State or of a Union territory, of the Indian Penal Code10 provides for or any other public servant employed in defamation which states that person is said to connection with the affairs of the Union or of a defame another whoever by words spoken or State regarding his conduct in discharge of his intendedtobereadorbysignsorvisible public functions, a Court of Session may take representationsmakesorpublishesany cognizance of such offence upon a complaint in imputation relating to any person intending to writing made by the Public Prosecutor.16 harm or knowing or having reason to believe that the imputation will harm the reputation of In Subramanian Swamy v The Union of India17, the person. Further, the said section provides several petitioners were politicians who were for some exceptions which express that it is not charged with criminal defamation. The issues defamation to impute truth which public good 11 ibid. 12 The Constitution of India, 1950. 9Chaudhary, P., Defamation in India - IPC Section 499/500 13 ibid. vs FreedomofSpeech,(edn 2017) 14 The Indian Code of Criminal Procedure, 1973 accessed 29 May 2020. 16 ibid. Section 199(2). 10 Indian Penal Code Act No.45 of 1860. 17 Writ Petition (Criminal) No.184 of 2014.

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law that were discussed in this case were whether Procedure, no court shall take cognizance of the Sections 499 and 500 of the Indian Penal Code offence except upon a complaint made by the is in line with Article 19(2) of the Constitution aggrieved person. This is because‘aggrieved and theissueofsupremacyoverlargerpublic person’ does not mean the person defamed. And interestoverindividualinterest. Here,the according to Section 499 of the Penal Code, any Supreme Court was of the view that it was a person whose reputation has been damaged reasonable restriction on the right to freedom can sue for defamation. Here, ‘any person’ may of expression while further emphasizing that refer to a single individual, an association or the Penal Code provisions are not collection of persons or a company. Therefore, disproportionate. Additionally, the court held it seems that locus standi can be brought in that proportionality and reasonableness of a light of the concept of Public Interest Litigation. restriction should not be considered from the However, when analysing the decided cases in viewpoint of the person upon whom the India, it is clearthatthisdependsonthefactsand restrictions are imposed but considering the circumstances of each case. Maulik Kotak v viewpoint of the interest of the general public. State of Maharashtra19 demonstrates this. In this case it was held that a complaint for Apart from this, recently, the ‘Times of India’ defamation should be filed by the aggrieved has reportedanarticlerelatingtocriminal person and by the person defamed and not by defamation which stated that a Delhi Court has any other person who was not defamed. directed the Chief Minister Arvind Kejriwal to appear before it for a complaint filed against C. Sri Lankan legal regime relating to him for retweeting a defamatory video against defamation and digital diplomacy the Prime Minister Narendra Modi.18However, Article 14(1)(a) of the Sri Lankan Constitution this casewasbroughtintheperspectiveof guarantees “the freedom of speech and maintaining political stability. expression including publication to every When analysing the above facts, it is clear that if citizen in Sri Lanka.”20 As the Indian an issue relating to political interest arises due Constitution has imposed certain restrictions to a defamatory statement in digital diplomacy, on the freedom of Indian jurisdiction has a remedy to resolve it speechandexpression,theSriLankan through criminal defamation. Therefore, this Constitutionhasalsoimposedcertain restrictions could be considered as a merit, because it is with regard to freedom of speech, expression better to have at least something rather than and publication under Articles 15(2) and 15(7) not having any mechanism to address the issues of the Constitution.21 According to Article 15(2), arising in the digital platform. Yet, the true aim Article 14(1)(a) shall be subjected to certain should be to maintain the national interest and restrictions in the interest of racial and the national security rather than protecting the religiousharmonyorinrelationto parliamentary individual interests which are beneficial for privilege,contempt of court, defamation, their own survival. incitement to an offence.22 Further, accordingtoArticle15(7), therearesome Moreover, it is important to identify the locus restrictionsimposedonArticle14which includes standi in relation to criminal defamation cases. the interest of national security and public As per Section 199 of the Code of Criminal order. And it should also be noted that the Constitution, being the supreme law of the 18(2019) 'Defamatory video: Delhi CM Arvind Kejriwal asked to appear before court on December 13', The Times of India, 30th November 19 Criminal Writ Petition No.428 of 2007. accessed 30 May 2020. 22 ibid Art.15(2).

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law country, should be given priority over all other part of the Penal Code. Thus, the amendment laws of the country. Therefore, every which repealed the defamation chapter in the publication should be subjected to the Penal Code has created a gap in the existing limitations prescribed in the Constitution, even legal system that needs to be addressed to though new trends have emerged as a result of secure national security while maintaining the new technological developments. inter-state diplomatic relationships strongly through digital platforms. ComputerCrimesActNo.24of2007was introducedtoidentifycomputercrimes, IV.OBSERVATIONSAND RECOMMENDATIONS procedureforinvestigationandprevent Therefore, when analysing the above facts it can computer crimes and matters connected beobservedthatdefamatorystatements thereto. This Act covers offences relating to published in digital platforms which relate to hacking in digital platforms.23 Additionally, theinterestofnationandinter-state relationships Section 6 of the said Act deals with computer is not widely addressed by the Computer crimes committed against national security, Crimes Act and the Penal Code does not public order & national economy. However, it stipulate any provision for defamation, even does not extend to cover though the Constitution contains provisions on defamatorystatementspublishedindigital restrictions imposedonprotectionagainst platforms, specifically activities which generate defamatory statements which can affect the the digital diplomacy against the interest of the nationalinterestandnationalsecurity. State as well as national security of the State. It Consequently, following recommendations could be argued that even though civil were made after identifying loopholes in the actionscanbepleadedbywayofdelictual actions law while comparing the Sri Lankan and the for defamation, it is not sufficient for instances Indian legal systems. which involve national interest and national security of the state. This has led certain issues Incorporate a clear and a wide definition of to go unaddressed since there is no provision criminal defamation than what is included in on criminal defamation in the Penal Code at the Indian Penal Code to the Sri Lankan Penal present24, even though earlier there were Code which is not inconsistent with the provisions on criminal defamation under supreme law of the country: the Constitution, Chapter XIX of the Penal Code 1883 which was because if an overlap arises between the two it titled as ‘OF DEFAMATION’, particularly which will affect the Rule of Law and the public was identical to the defamation Chapter in the interest. Thus, it Indian Penal Code. Section 479 of this Chapter wouldbeeffectivetoincludethephrase “national provided for the offence of defamation whereas security” to the proposed provision to Section 480 provided for the punishment for giveprominencetoaddresstheissues defamation. In the case of Sinha Ratnatunga v specificallyarisingwithregardtonational security The State25 it was held that a statement may be through digital diplomacy. defamatory, even though the readers do not Re-introduce or propose an amendment to the believe it to be true and it was further held that Penal Code which makes everyone liable for the Penal Code makes the requisite criminal criminal defamation irrespective of their status intention or knowledge an additional ingredient or the position, specifically with regard to for defamation. This emphasizes the situation issues relating to national interest and inter- prior to 2002 where criminal defamation was state relationships. According to Section 199(2) of the Indian Code 23 Section 3 of the Computer Crimes Act No.24 of 2007. of Criminal Procedure, it could be identified 24 This was repealed by the Penal Code (Amendment) Act No.12 of 2002. that personsholdinghigherofficesofthe 25 [2001] 2 Sri LR 172.

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law government have been given immunity from the Penal Code was inadequate to facilitate the making defamatory contents in digital emerging new trends of offences with regard to platforms which affect the national security and unauthorizedaccesstocomputers,the Computer inter-state relationships. Therefore, it would be Crimes Act has not extended to cover the effective to defamatory acts in digital diplomacy in order to imposeliabilityregardlessoftheirhigher safeguard the national security and inter-state positions. If not it could be considered as them relationships. Therefore, it would be effective to havingunequalaccesstolawwhichis inconsistent re-introduce criminal defamation to the Sri with the Constitutional provisions and would be Lankan legal system in a way that issues arising a violation of the concept of Rule of Law. out of digital diplomacy can also be addressed. UnlikeintheIndiansituation,itwouldbe effective ACKNOWLEDGEMENT to authorize Public Interest Litigation We would like to extend our sincere gratitude inordertoallowapersontorepresent a to our parents for their encouragement and community with regard to defamatory issues support given by them and for helping us and arisinginrelationtonationalsecurity, specifically guiding us in successful completion of this in digital platforms, because it is the obligation research. Further we are thankful to everyone of every citizen “to uphold and defend the who supported us in every possible way. Constitution and the law”26 and “to further the national interest and to foster national unity.”27 REFERENCES Communication professionals can be hired by V, B., 2020. Digital Diplomacy And Its Effect On the governmentofficialstoruntheirsocial InternationalRelations.[Online] mediaaccountsonbehalfofthemwhile Digitalcollections.sit.edu.Availableat: maintaining confidentiality. https://digitalcollections.sit.edu/cgi/viewconte nt.cgi?article=3619&context=isp_collection Social media training courses can be conducted [Accessed 5 May 2020]. effectively to educate diplomatstoprotect national security. Jayatilaka, C., 2020. The Effects of Digital Diplomacy on International Relations; Lessons The standards of the contents of Twitter and forSriLanka[online]TheLakshman Facebook pages should be maintained regularly KadiragamarInstituteAvailableAt: to overcome national security issues that might https://lki.lk/publication/the-effects-of-digital- arise relating to digital diplomacy. diplomacy-on-international-relations-a-lesson- Increase judicial activism in Sri Lanka in a for-sri-lanka/ [Accessed 7 June 2020]. manner which will allow the judiciary to play an Chaudhary, P., 2020. Defamation In India – IPC active role in interpreting issues falling under Section 499/500VsFreedomOfSpeech. [Online] criminal defamation. ClearIAS.Availableat: https://www.clearias.com/defamation- freedom-speech/ [Accessed 29 May 2020]. V. CONCLUSION GlobalFreedomofExpression.2020. The study reveals that criminal defamation is Subramanian Swamy v. Union of India - Global not a part of the Sri Lankan legal regime after it Freedom of Expression [online] Available At: was repealed by the Penal Code (Amendment) https://globalfreedomofexpression.columbia.e Act No.12 of 2002. Even though the Computer du/cases/subramanian-swamy-v-union-india/ Crimes Act was brought because provisions of [Accessed 30 May 2020].

26 The Constitution of the Democratic Socialist Republic of Computer Crimes Act No.24 of 2007 Sri Lanka, Art. 28(a). 27 ibid Art. 28(b)

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The Times of India. 2020. Defamatory video: http://mja.gov.in/Site/Upload/GR/Title%20NO Delhi CM Arvind Kejriwal asked to appear .43(As%20Per%20Workshop%20List%20title before court on December 13 The Times of %20no43%20pdf).pdf [Accessed 30 May 2020]. India, 30th November [online]Availableat: The Constitution of India, 1950. https://timesofindia.indiatimes.com/city/delhi /defamatory-video-delhi-cm-arvind-kejriwal- The Constitution of the Democratic Socialist asked-to-appear-before-court-on-december- Republic of Sri Lanka, 1978. 13/articleshow/72308358.cms [Accessed 30 The Indian Code of Criminal Procedure, 1973. May 2020]. Bridget, V. (2017). ‘Digital Diplomacy and Its Twitter.com.2020.Twitter.[Online] Availableat: EffectonInternationalRelations’[online]. https://twitter.com/mangalalk/status/125032 Independent Study Project (ISP) Collection. 4245474754560?lang=en[Accessed2 Availableat: September 2020]. https://digitalcollections.sit.edu/isp_collection Lewis, D., 2020. Digital Diplomacy - Gateway /2596 [Accessed 8 June 2020]. House. [online] Gateway House. Available at: Wikipedia.(2020). [online] WikiLeaks. https://www.gatewayhouse.in/digital- Available diplomacy-2/ [Accessed 2 September 2020]. at:https://en.wikipedia.org/wiki/WikiLeaks Indian Penal Code Act No.45 of 1860. [Accessed 30 May 2020]. Ray,M.(2020).WikiLeaks.Encyclopaedia Westcott, N. (2008). Digital Diplomacy: The Britannica,[online]Availableat: Impact of the Internet on International https://www.britannica.com/topic/WikiLeaks Relations. Research Report, [online] Volume 16. [Accessed 28 May 2020]. Available at: https://www.oii.ox.ac.uk/archive/downloads/ Rashica, V. (2018). The Benefits and Risks of publications/RR16.pdf [Accessed 20 June Digital Diplomacy. SEEU Review, 13(1), pp. 75. 2020]. Ross, A.(2011). Digital Diplomacy and US Labreche, G., 2020. Digital State-Building In Foreign Policy. The Hague Journal of Diplomacy Kosovo.[Online] Researchgate. Available 6(3-4): 451-455. at:https://www.researchgate.net/publication/ Schwarzenbach, B. (2015).‘Twitter and 335277515_Digital_State-Building_in_Kosovo diplomacy: How social media revolutionizes [Accessed 2 September 2020]. interactionwithforeignpolicy.Diplo Foundation’

. [Online] Available at: AUTHOR BIOGRAPHIES https://www.diplomacy.edu/twitter-and- diplomacy-how-social-networking-changing- foreign-policy [Accessed 20 January 2020].

Sinha Ratnatunga v The State [2001] 2 Sri LR 172. Subramanian Swamy v The Union of India [Writ Vishna Pulnadie Liyanage has completed the Petition (Criminal) No.184 of 2014]. LLB degree at General Sir John Kotelawala ‘Summary of papers of Judicial Officers on Defence University. She is a preliminary year Defamation: its civil and criminal liability’ student of Sri Lanka Law College. Her research [online]Availableat: interests include Environmental Law, Criminal Law and Constitutional Law.

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Danagala Athukoralage Madushani Supunika Preliminary year student of Sri Lanka Law has completed the LLB degree at General Sir College. Her research interests include Criminal John Kotelawala Defence University. She is a Law and Intellectual Property Law.

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Paper ID: 103 Punishments under the Quarantine and Prevention of Disease Ordinance in Sri Lanka: Adequate to Fight a Pandemic?

HLI Udani# and UI Abeywickrama

Sri Lanka Law College

#[email protected]

Abstract – The society needs more laws to then during the colonial period many things protect the people from COVID-19. Recently, were introduced.193 Among them Quarantine the increasing number of people who are and Prevention of Disease Ordinance was violating the quarantine laws in Sri Lanka due enacted in 1897.194 Further, this ordinance was to the insufficient punishments that comes introduced to prevent the introduction of under the Quarantine and Prevention Disease plague and all contagious or infection diseases Ordinance No.03 of 1897. In this situation, the to Sri Lanka and the spread of such diseases in national security fails to punish people and outside Sri Lanka. The above mentioned because the legislature has not given sufficient Ordinance contains twelve sections and the attention to this matter. In this research it is Minister of Health and Indigenous Medical expected to understand how the current Services were granted power to make legislature has supported in punishing the necessary regulation thereunder. general public who violated quarantine laws in However, Sir Lanka has witnessed many large the current context of Sri Lanka. Further, in out breaks of emerging and re-emerging this research it is expected to address the infectious diseases like plague, cholera, yellow research problem of, whether the prevention fever, typhus and small pox and etc. in past measures should help national growth and the years. In 2019 novel coronavirus named as security through the provisions of COVID-19 by the WHO has spreaded in the punishments under Quarantine and Prevention wholeworldtodayincludingSriLanka. of Disease Ordinance in Sri Lanka is enough in Currently,topreventandcontrolthis pandemic, expected level. This research is mainly based Sri Lanka is governed under the on both primary and secondary data. By QuarantineandPreventionofDisease Ordinance analyzing those data, it defines the No. 03 of 1897. issueswithregardtotheOrdinance and recommendations and conclusion will provide Legalframeworksareimportantduring solutionforpunishmentsregardingthe emergency situations as they can delineate the quarantine laws. So it will be better to re-enact scope of the government’s responses to public quarantine laws which should be suitable for health emergencies and also, the duties and the present and future time period in Sri rights of citizens. Therefore, the section 05 of Lanka. the Quarantine Ordinance described regarding the punishments of guilty person who are Keywords- Pandemic epidemic laws, committing offences against above ordinance. National growth and security, Quarantine Whether it mentioned several punishments in and Prevention of Disease Ordinance the Ordinance it was questionable though INTRODUCTION these punishments are adequate to fight a Background to study 193 Dr.Sunil De Alwise, Health issues in Sri Lanka, History of health system of Sri Lanka began www.bidti.lk 194 Quarantine and Prevention of Disease Ordinance during the king Pandukabhaya's period and No.03 of 1897.

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law pandemic in 2020. By breaching quarantine internationalstandardsonrelevantlaws, laws people were violating fundamental rights: knowledgeonexpertisetookasprimary sources. right to life. For example, many were hiding The Quarantine and Prevention of Disease their travel Ordinance No.03 of 1897, the Public Security history,breachedthecurfewrulesand Ordinance No 25 of 1947, the Disaster importantly theincidentthathappened in Management Act No 13 of 2005, Penal Code Suduwella area in Ja-Ela; government had to No. 2 of 1883 and Quarantine Act of Canada quarantine sailors from Welisara Navy referred as primary sources. And also data Camp.195 gathered in library base by going through Journal articles, internet articles etc. as Thesekindofviolationsshowsthatthe secondary sources. Furthermore, qualitative punishments that comes under the quarantine data gathered from primary and secondary ordinance should be renewed according to the sources. current situations. This research conducted on black letter Research problem method andInternationalcomparativeresearch In this research, it is intended in exploring the method. Also this research paper filled the following question: Why the Quarantine and gaps of QPDO related to the punishment for Prevention of Disease Ordinance in Sri Lanka those who are violating the quarantine law and has not implemented laws to control the how to implement the legislations regarding situationin2020byusingmoresevere this matter. punishments? III. ANALYSIS Research objectives Issue of the Quarantine and Prevention of To find out the existing laws that emphasiz the DiseaseOrdinancesectionregarding penalizing applicability of the Quarantine and punishments Prevention of Disease Ordinance. UndertheQPDO,section5definethe To pinpoint the issues regarding the punishing punishments of violating quarantine laws and section of Quarantine and Prevention of it says that, ‘if any person is guilty of an offence Disease Ordinance relating to national growth against this Ordinance, he shall be liable on and security. convictionbeforeaMagistratefor imprisonment To suggest recommendations to Quarantine or either description for a term not exceeding and Prevention of Disease Ordinance to control six months or to a fine not exceeding one the pandemic situation in Sri Lanka. thousand rupees, or to both. Furthermore, nothing in this section contained shall affect II. METHODOLOGY the liability of any person to any punishments This research has mainly recognized as a or penalty to which he is liable under any Doctrinallegalresearchthereforegives enactment other than this Ordinance, but so accentuationonsubstantivelawrules, principles, that a person shall not be punished twice ideas and legal theories. Mainly this study forthesameoffence.’Inhere,these continued around lawful suggestions and legal punishmentsarenotenoughtofighta pandemic claims on the lawful recommendations of the because comparing to the present the Courts, and other traditional legitimate punishmentsshouldbedeveloped.The materials. The qualitative data utilized in this communityshouldfearforviolatingthe research.Thestatutes,casereports, quarantinelawsbyknowingthetough punishments. In some developed countries, they enacted new quarantine laws and 195 COVID-19 pandemic in Sri Lanka, www.wikipedia.com

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law punishments only for COIVD-19. This way the relevant to the pandemic situation but Sri relevant authorities were able to reduce the Lankan government did not use it. However, quarantine lawviolatorsandcontrolthesituation above mentioned legislations help to prevent according to their will. andcontroltheCOVID-19thoughthe punishmentsarenotenoughtofighta pandemic. Existing other legislations in Sri Lanka to reduce the quarantine law violators Comparison of quarantine laws between Canada vs. Sri Lanka In Sri Lanka there are several legislations to controlandpreventquarantinediseases. Most of the countries enacted new laws to However, when dealing with the COVID-19 the control and prevent the covid-19. Among them, government mainly base on QPDO and for Canada introduced an Act to prevent the punishments the relevant authorities base on introduction and spread of communicable penal code and PSO and also DMO can be used. diseases in 2005.under that the Quarantine Act Other than QPDO, in Penal Code chapter 19 of Canada define ‘every person is guilty of an discusses about the punishments and offences offence if they cause a risk of imminent death affecting the public health, safety, convenience, or serious bodily harm to another person while decency and moral. Under that, in section 262 willfully or recklessly contravening this Act or define the punishments for negligent act likely the regulation and moreover, if any person to spread infection of any disease dangerous to who commits an offence above section is liable life and it says that ‘whoever unlawfully does on conviction on indictment, to a fine of not any acts hall be punished with imprisonment more than $1,000,00 (Rs. 184,740,000/-) or to of either description for a term which may imprisonment for a term of not more than extend to six months or with fine or with both’. three years or to both and on summary And also,underthesection263definethat, conviction, to fineofnotmorethan$300,000(Rs. ‘whoever maliciously does any act which is, 55,422,000/-) or to imprisonment for a term of and which he knows or has reason to believe to notmorethansixmonthsortoboth’. Considering be, likely to spread the infection of any disease these punishments, Sri Lanka is having slight dangerous to life, shall be punished with punishments as mentioned above. However, imprisonment of either description for a term the importance in here that these laws have which may extend to two years, or with fine, or helped those countries to reduce the law withboth’.Further,disobediencetoa quarantine violators while number of Sri Lankan rule, punishments comes under section 264 quarantinelawviolator wereraisedup. and it says that, whoever knowingly disobeys Therefore, above international laws can be any rule shall be punished with imprisonment adaptedtoQuarantineandPreventionof Disease of either description for a term which may Ordinance in Sri Lanka. extend to six months, or with fine, or with IV. RECOMMENDATIONS both. • Making sure that the quarantine laws Other than that, section 16 (3) of PSO address alltheloopholesidentifiedincurrent describes that, ‘if any person contravenes an QuarantineandPreventionofDisease Ordinance order made he shall be guilty of an offence and No 03 of 1897 shall on convictionaftersummarytrialbeforea Magistrate, be liable to rigorous imprisonment UndertheQPDOsection5definethe punishments for a term not exceeding one month or to a fine of violating quarantine laws and those not exceeding one hundred rupees or to both punishments are not enough to fight a suchimprisonmentandfine’.Alsosome pandemicbecausethisOrdinancewas punishments were mentioned in the DMO established during the colonial period and now Sri Lanka is passing the 21st century. But the

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law legislations were not developed according to this Act could be used to reduce the violators of the time period. Therefore, above mention quarantine laws but the government did not section should be amended and made use the laws that contain in this Act. Further in necessary regulations. Disaster Management Act section 24 explain that, ‘every person who assaults, obstructs, • Developing the punishments of curfew rule threatens, intimidates, abuses or insults any under the Public Security Ordinance No 25 of person exercising any power or discharging 1947 any duty conferred on or imposed on such Under the PSO section 16 explains the curfew person by this Act, shall be guilty of an offence andthepunishments.Initsection16 subsection 1 under this Act and shall on conviction after defines the curfew as, ‘no person in such area summary trialbeforeaMagistratebeliableto shall, between such hours as may be specified imprisonment of either description for a term in the order, be on any public road, railway, not exceeding twoyearsortoafinenot exceeding public park, public recreation ground or other twenty five thousand rupees, or to both such public ground or the seashore except under imprisonment and fine’. The reason for the authority of a written permit granted by recommending this Act is that, it was enacted in such person as may be specified in the order’. the very recent past with comparing to Further,inthesamesectionsubsection3 QuarantineanPreventionofDisease Ordinance describes the punishments for violating the and also the punishments were adequate to curfewanditsaysthat,‘ifanyperson contravenes control the situation. an order made under this section, he shall be • Holding awareness program regarding guilty of an offence and shall on existing quarantine laws and punishments convictionaftersummarytrialbeforea Magistrate, be liable to rigorous imprisonment Continuingly, informed on problems related to for a term not exceeding one month or to a fine violating quarantine law and the sections that not exceeding one hundred rupees or to both lay down in Quarantine and Prevention of such imprisonment and fine’. Further, looking Disease Ordinance. Then what punishments in to these punishments show that these were that the Quarantine Ordinance can take against enacted during the colonial period and not thecommunitywerementionedinthe Ordinance adequate to current situations. Due to the lack but the community is not aware about this. So, of punishments the community violate the it provides opportunity to violate the curfew rules and in here, it’s so hilarious to say quarantine laws that the community should that 40,095 people violated the curfew rules in follow. Sri Lankan health system, Sri Lanka Sri Lanka while other countries patients rate Army, Police officers and relevant authorities were increasing in same amount. Considering shall hold awareness programs regarding the abovesituation,theselawsshouldbe developed sections of offences and punishments by using and the punishments should be re-enacted. socialmedia,governmentalandnon- governmental organizations meetings. For an • Using the punishments which come under the instance, Tamil Nadu police released a prank Disaster Management Act instead of video showing lockdown violators put in an Quarantine and Prevention of Disease ambulance with a (mock) covid-19 patient. Ordinance. This will give worth opportunity to reduce The Disaster Management Act was enacted for violating quarantine laws and will support to whereas human life, property and control the pandemic. environment ofSriLankaisbeingthreatenedand • Introducing international laws to domestic endangered due to certain disasters taking laws place within the territory of Sri Lanka. Though

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As mentioned above, Quarantine Act of Canada QuarantineandPreventionofDisease Ordinance helped to reduce the law violators. Therefore, No.3 of 1897 above international laws can be adapted to Public Security Ordinance No. 25 of 1947 QuarantineandPreventionofDisease Ordinance in Sri Lanka. Disaster Management Act No.13 of 2005 V. CONCLUSION Penal Code No.2 of 1883 According to the analysis it was understood Quarantine Act of Canada of 2005 that there have been the QPDO as the key Articles support that has been given through the Sathmi W, Quarantine law: An array of powers legislature for the punishment to the general for public health and safety, [online]. Available public who violates quarantine laws in peak at: www.dailynews.lk (Access on 18th June, 2020) period of COVID -19 in Sri Lanka. The laws in the ordinance has been established in the Viduravi A, section16ofPublicSecurity colonial period of the country and still no any Ordinanceoncurfewandrecallingthe required amendments were done based on parliament(online).Availableat: that. Considering the number of cases has been https://groundviews.org (Access on 18th June, reported only in the period of quarantine in 2020) the recent past started in 20th March 2020, it Rakesh PS, The Epidemic Disaster Act of 1897: can be concluded that the provisions under the public health relevance in the current scenario QPDO and has not been (online). Available at Indian journal of medical able to punish the people who violate the laws ethics. (Access on 02nd June, 2020) specially during the curfew period because of there are insufficient laws to penalize. ABBREVIATION Finally, the punishment section of QPDO QPDO- Quarantine and Prevention of Disease ordinance fails to punish people because the Ordinance quarantine laws are aged. Mainly many states PSO- Public Security Ordinance still have lack of implementation strategies such as providing punishments and preventive DMA- Disaster Management Act measures to reduce to violating quarantine WHO- World Health Organization laws. In this situation the general public do not ACKNOWLEDGEMENT respect the laws because of those punishments are not tough to them. According to the above The preparation of this research would not facts, mainly Sri Lanka using quarantine have been possible without the help of number ordinance and penal code to punish those of people. First, we would like to extend our people who violate the laws. Finally, this profound gratitudeto Ms. AA Edirisinghe research tries to give awareness to the general (lectureratGeneralSirJohnKotelawala Defense public regarding the punishments under University) for her unending support and quarantine laws. As a conclusion, this paper guidance throughout the process of writing. suggests to implement quarantine laws in Sri Specially, this thesis would not have been Lanka based under punishments and adopt possible without our family members who international laws to the domestic laws to help were always with us in completing this national growth and security of Sri Lanka. research with frequent encouragements. REFERENCE Thank you! Legislations AUTHOR BIOGRAPHIES

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

University. Diploma in diplomacy & world affairs, BIDTI Student of Sri Lanka Law College. UI Abeywickrama - Graduated from faculty of law,GeneralSirJohnKotelawalaDefence University. Student of Sri Lanka Law College

HL Isuri Udani - Graduated from faculty of law, General Sir John Kotelawala Defence

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Paper ID: 189 Effectiveness of Foreign Portfolio Investment with regard to Multinational Corporations in the Long Run

ND Wanaguru

General Sir John Kotelawala Defence University

[email protected] Abstract - This study was conducted to further development of the country's exploretheapplicationofPortfolio economy. Investments in situations where Foreign Keywords: Direct, Portfolio, Investment, Direct Investment (FDI), although stable, Multinational does not seem to be compatible with the conductofMultinationalcorporations within RESEARCH PROBLEM AND OBJECTIVES a country. In this study the research Research Problem question that appears would be, “Is it Foreign Direct Investment is considered to possible to use portfolio investment by becomparativelystablethanForeign multinational corporations in the long run Portfolio Investment. However, there is a when direct investment is chosen to be tendency that multinational corporations withdrawn?”. This study aims to discuss withdraw from Foreign Direct Investment variousbenefitsandascertainthe in the long run. In such a backdrop is it effectiveness of the Portfolio Investment by possible to use Foreign Portfolio including world examples of developing Investment which is considered to be less countries and at the same time investigates stable than Foreign Direct Investment. the position of portfolio investment by the statepartiesandthemultinational Research Objectives corporations when difficulties arise on FDI ➢ To identify the benefits of Foreign in the long run. To collect data for the study, portfolio Investment secondary data will be gathered using the Black Letter method. FDI and Portfolio ➢ To investigate the position of Investment are two different types under Foreign Portfolio Investment among InternationalInvestmentLaw.FDIis covered multinationalcorporationsand bycustomary international law whereas between states Portfolio is not. While FDI tends to be more ➢ Toidentifythereasonsfor stable, Portfolio measures up to it by having withdrawalfromForeignDirect benefits with regards to income, liquidity Investment in the long run etc. This study mainly analyzes the situationsinMalaysiaandIndia.In conclusion, after analyzing the positive and negative METHODOLOGY aspects of both types of Investment, it can The studyisbasedonForeignDirect be when difficulties arise with FDI, the use Investments and Portfolio Investment and of portfolio Investment can help mitigate discussed the effectiveness of using issues that arise. It is recommended for Portfolio Investment when there are developingcountriestomakeuseof withdrawals of Direct Investment. Basically, PortfolioInvestmentinamoreliberal manner it means to mitigate the negative effects to take advantage of its benefits for the that could arise from direct investment and

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law to ensure the growing economy (India). Both these states smoothflowofeconomywithoutany use state policies towards the FDI and even distractions. This study was done using though FDI is more stable use portfolio library research and to collect data for the investment in a study it used several secondary sources to moreliberalwaytotakecompatible clarify the question “Would it be possible to advantages. use Portfolio Investment by multinational II.FOREIGN DIRECT INVESTMENT corporations in the long run when Direct Investment is chosen to be withdrawn?”. Simply this is defined as investment of For data analysis in this study, qualitative physical assets or the money which passes data wasanalyzed.Thisdatawasgathered by the home state which is the state of the throughinternetarticles,books,judicial investorpassestohoststateasan investment. decisions,treatiesandsomeother As mentioned by the IMF and OECD, direct information supplied by websites as well. investment means obtaining a lasting Thelimitationsofthestudyarethat interest by a resident entity of one economy quantitative data is not deeply analyzed and (direct investor) in an enterprise that is it only g two major examples as Malaysia resident in another economy (the direct and India. investment enterprise). These are utilized in the open market economies. FDI’s I.INTRODUCTION influences to the host state more likely a International investment law has two parts capital investment. Mergers, acquisitions, which can be divided as Foreign Direct logistics, retail and other forms of areas Investment and Portfolio Investment. In the suppliestheexamplesfortheFDI. internationalspherethenatureof investment Traditionally FDI includes only the physical is more focused on FDI and Portfolio assets but in the modern context it has been investments are not taken into expanded to several non-physical assets consideration. Accordingly, Foreign Direct and intangiblerights.Moreover,theseare Investments are protected under customary protected under customary international international law because there are enough law and Intellectual property, Contractual treaties and laws to govern it. At the same and Administrative rights are discussed in time Portfolio Investments are not under them. customary international law.Thereare III.PORTFOLIO INVESTMENT arguments on these as well. In history there are instances where portfolio investments Portfolio investment is based on shares, are identified by treaties. Therefore, it is a debentures, bonds, etc. With regard to IMF, proved fact that FDI is more stable than the portfolio investment is defined as cross- portfolioinvestments.Toclarifythe border transactions and positions involving problem,itisnecessarytoknowabout debt or equity securities, other than those definitions of both FDI and FPI. Accordingly, include in direct investment or reserve the issue here takes the view that, when assets. On the other hand, it is known as hot there are difficulties with FDI, the host money as well. states can mitigate the position through In terms of the international investment law several statepoliciesaccordingtothestate’s FDI or FPI investments protected under economy and can choose the way of several treaties. Among those treaties’ Portfolio investments”. Here it mainly portfolio investments are included in some. considers about two countries as examples; Portfolio investments have distinguished one which once ledtoeconomiccrises features from primary shares in certain (Malaysia) and another which has fast companies which use foreign investment as

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law a vehicle. These are not under shares which investment with financial assets. Moreover, are ordinarily traded but are instruments the management of project are efficient in that directly connected with the companies FDI than the portfolio investments. With all assharesorindirectlyconnectedas these facts entry and exit are not easy thing promissorynotesandbonds.Amajor purpose for FDI but it is relatively easy for portfolio of having portfolio investment is to raise investments. FDI results in transfer of capital for ventures. It can be done by funds, technologyandotherresourcesbut savingorcirculatingaboveinstruments portfolios are results in capital inflow. through stock exchange or through other V.EFFECTIVENESSOFPORTFOLIO markets.Thisshouldbeencouragedto include INVESTMENT IN HOST STATES under investment treaties because to increase the capital flows, and also it is the Sudden withdrawal of portfolio funds from interest of the developing countries to Asian countries has been affected to the encourage their flows. On the other hand, Asian Economic crises which held in 1997.It there is an argument against to include proves the fact that portfolio investment is portfolioinvestmentsinthetreaties. unstable in the meaning of FDI and it can be Accordingly host state has a duty to protect withdrawn at any time as investor wishes. theseunascertainableholdersofthe On the other hand, FPI is lacking some instrumentsanditcontinuouslychange their characteristics that can be protected under identities. In fact, they can pull out of a the international policy protection as well. state. Therefore, value of these instruments Although these facts are established when can be questioned in view of the financial there are difficulties towards the FDI then crises which caused in the previous mass host states are mitigating those difficulties departure of portfolio capital. and using portfolio investments to their economic systems. Countries such as China, In the case of Fedax vs. Venezuela domestic Malaysia, India and Sri Lanka are using holders of promissory notes, who were not portfolio investments in the above manner. entitled to protections have transferred the notes to another foreign citizens of a Malaysia uses three types of capital control country with an investment treaty. After measures. They are indirect capital that they becomeentitletoclaimagainstthe controls, control on the capital account and particular state because the treaty direct capital control. The beginning of the protected portfolio investments. East Asia’s financial crises was serious thing which happend in 1997 on Thai baht. Here IV.COMPARISON OF FDI AND FPI they invested short term investments and Both FDI and portfolio investments involve after they pulled out all the money exposure the situations funding in another country had led to gushing default and after that but these two have distinguish features in currency devaluations started. Malaysian nature of holding, the degree of control and ringgit, Indonesian rupiah and Philippine term etc. Accordingly, in FDI the degree of peso were affected as a result of this issue. control is high as investor obtaining both In the post-crisis’s era both FDI and management rights and ownership rights, portfolio have helped to overcome the issue portfolioinvestmentshaveonlythe and balance payment theory which ownership rights the control is very less. determined the mobility differentiate hot Role of investors in FDI is active and in money and FDI. The statistics for portfolio it is passive. FDI is a long-term Dependent Variables (1991-2004) proved investmentwithphysicalassetsand that introduction of capital controls was portfolioinvestmentisashort-term helped to promote

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law soundenvironmentforportfolio investments. barriers as well. So, that means they have Without portfolio investment it their own state policies with difficulties isnoteasyforMalaysiatogrow economically towards FDI. Therefore, they have given solely with the use of FDI. more liberal way to FPI. In respect of these examples it can be justified that sound economic states such as USA, England, France can use 100% FDI but if the states having difficulties on FDI they can mitigate their positions and can use portfolio investments as well. VI.BENEFITSOFPORTFOLIO INVESTMENT Benefiting by using portfolio investment is a far-reachingandfutureadvantage. Sometimes, it would give advantages to another generation. On the investors side a Normally in developing countries they need wise investment can guard his initial money to their own growth. All Asian investment and state parties can grow their countries have same features on this economies within a short term. Not only the section. India is known as the fast-growing profits gained through shares, there are major economy in the world and they have certain privileges. 7.4% GDP rate for 2019 as well. Here India A.Diversification has taken several steps to liberalize their foreign investments and as a result of that When investing an investor needs to can improvetheirbusinesses.Inbound allocate capital in a correct manner in order investment routes are there that global to reach the benefits in financial market. In investors can go beforetheirattractive a creation of diversified PI it can spread destination points. FPI framework investors capital across more than one investment given chance to make their investments in category. On the other hand, can diversified listed equities and other securities. For this into multiple asset classes will help they need to register and take the license safeguard investors capital and at the same which were granted by Indian custodian in time host states can develop several its manner specified as a DDP through industries in a short period of time by using regulations, 2014. Each investor needs to hot money. obtain a tax file. India recently change their B.Potential tax exemptions as long-term capital gain tax wereremovedwithSingaporeand Mauritius. It is known as a major advantage to the India has a restrictive FDI regime. With investor. Individuals may be unprepared for regard to Indian ventures it was ranked 57th their investments. Basically, what they do is in the GCR 1999.Even the banking sector placing money in bank saving accounts. It is needs to use reciprocal investment rights a protected way but compared to share but government pauses restrictions on FDI. market and other portfolio investments Lack of clear cut and transparent sectoral they cannot grow profits in the financial policies for FDI and high rates on market. By having PI the position is to imported capital good used for export, potentially earn sizable profits and limited scale of export processing zones can individuals can prepared for their own be known as difficulties in FDI sector. future targets. Accordingly, to the host Specially there is no liberalization in exit states also can make and safeguard

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law the investments by attracting investors by Reference List providing more facilities. Bajpai, N & Sachs, JD, ‘Foreign Direct C.Income Investment in India: Issues and Problems’ (Harvard University 2003) Stocks will create steady income stream for many distributions. Investing in bonds and (Balance of Payments Division IMF securities are other ways to make income Statistics Department), 19-23 January 2015, through PI. International Monetary Fund, ‘Portfolio Investment’, viewed 03 July 2020, D.Liquidity shares, securities and etc. can be traded Duce, M & Espana de B, ‘Definitions of based on supply and demand. Therefore, in Foreign Direct Investment (FDI)’ [2003] PI’s both investor and the host states can convert these instruments to cash if Fedax vs. Venezuela [1998]37 ILM 1378 necessary. Lajuni, N, Yee, O, A, & Ghazali, M, F, ‘Capital VII.CONCLUSION Controls: Impacts on Foreign Direct Investment and Portfolio Investment in FDI is an investment basically used physical Malaysia’ [1991-2004] assets and other intangible rights in another country.Hereittransferredfunds, resources, Netherland- Venezuela, Bolivarian Republic technology etc. Accordingly, the investors of BIT [1991] have active management on these Rajesh, H, Gandhi & Karamjeeth Singh, investments. Foreign Portfolio investment ‘Foreign Portfolio Investment in India’ means investment which made through Performance Magazine (India) financial assets. From portfolio investments it can gain short term profits and investors Sonarajah, M, (3edn),2010, The do not have control over the investment. International Law on Foreign Investment, Direct investments are more stable than the Cambridge University Press, pp. 314-316 portfolio investments there are some Surbhi, S, Differences Between FDI and FPI instances that portfolio investments are (Key Differences ,24 May 2017), viewed 04 recognized by treaties. Fedax vs. Venezuela July2020, case is an example for the above recognition the FDI is more stable than portfolio Terzo, G, What Are the Benefits of Having an investments, multinational companies can Investment Portfolio (Tinance Zacks), withdraw the direct investment in the long viewed03July2020, run. Therefore, when there are difficulties www.finance.zacks.com/benefits-having- towards the FDI the host states can mitigate investment-portfolio-3985.html the position by using their states policies and can make considerations on the Author Biography portfolio investments as done by the Author is an undergrate at the General Sir Malaysia and India as an example. Thus, John Kotelawala Defence University, portfolio investment can make Ratmalana. She is reading for her LLB in the replacements in terms of FDI and it has third year. more hidden advantages in short term.

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law Paper ID: 353 Proportionality as a Separate Ground of Judicial Review: A Myth or Reality in United Kingdom and Sri Lanka

HA Jinasena

General Sir John Kotelawala Defence University

[email protected] Abstract— Administrative Law (AL), is the and proportionality in United Kingdom (UK) and law which controls the governmental power Sri Lanka (SL) to identify whether the that is exercised by the Administrative application of proportionality in above Authorities (AAs). The major purpose of AL jurisdictions is a myth or reality. Also this is to retain the governmental power within paper will discuss the importance of their legal boundaries with prima facie identifying new grounds of JR while intention of upholding the rule of law and to emphasizing the significance of protect the citizens against the abuse of proportionality as a ground which does not such power. Under Judicial Review (JR), the expand the boundaries of JR. In carrying out court exercises its inherent power to the research, author uses both primary and determine whether the actions taken by the secondary sources which include statutes, AAs are lawful or unlawful and to award case laws, books, journal articles, websites suitable remedy. The Doctrine of Ultra Vires and internet articles. is considered to be the central principle of Keywords — Administrative Law, Judicial AL. However, with the developments in Review,Unresonableness, relation to current changing patterns of the Proportionality field of AL, courts have identified other grounds of JR such as Unreasonableness, I. INTRODUCTION Irrationality, Proportionality, Legitimate In the modern society, complications Expectation and Public Trust Doctrine in between the AAs and the citizens have order to challenge the decisions of the AAs. become a common issue. In order to govern Nevertheless, some these complicated relationships, AL has arguethattheseidentifications unnecessarily becomeanecessarymechanism. expand the boundaries of JR. Especially Traditionally,AAs havemainlyreceived their with regard to Unreasonableness and powers by Parliamentary Acts and their Proportionality, some scholars argue that responsibilityistoexercise their powers these two grounds are identical and within the four corners of the Act. In identificationofproportionalityasa addition to statutory power, AAs exercise separategroundisanunnecessary expansion discretionary powers since, in a welfare of the boundaries of JR. On the other hand, society AAs must necessarily take decisions some argue that these grounds to face different circumstances. Therefore, havetheiruniquefeaturesand the main objectiveofAListokeep the proportionality provides a better protection governmental power within their frontiers in safeguarding individual rights. Therefore, and to protect the common citizens from in the presentt context the problem is any abuse of governmental power exercised whether the application of proportionality by the AAs (Talagala, 2011). in order to challenge the decisions of the The ultimate remedy of AL is to achieve AAs is a myth or reality. In this regard, this administrative fairness by seeking a writ. To paper will provide a comparative analysis seek a writ there must be a ground of JR which about position of unreasonableness, irrationality

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law has recognized by the courts. The Doctrine of For the purpose of this research qualitative data ultra vires is considered to be “the central collection methods were used and a library principle of AL”. Moreover, the principles of based research was also conducted for natural justice also can be identified as a well- further information. In order to collect established ground of JR. “Though the doctrine primary data, statues and number of case of ultra vires was considered as ‘the central laws in UK and SL were used. The data principle of AL’ it has moved from ultra vires rule to concern for the protection of individuals gathered from books, journal articles, blogs and for the control of power rather than powers and internet articles were used as or vires” (Oliver, 2000, p.543). As a result, secondary sources to enrich this research. judiciary has recognized several grounds of JR to be compatible with emerging situations in order to promote good administration. Moreover, a comparative analysis was The analysis of unreasonableness and conducted between UK and SL, to evaluate proportionality under UK Human Rights Act theapplicationoftheprincipleof 1998 has a long history of scholarly debate and unreasonableness and proportionality as judicialarguments.Itisarguedthat grounds of JR in each judicial system and to proportionality review in the context of the examine whether the unreasonable has been European Convention on Human Rights (ECHR) replaced by the proportionality. goesmuchfurtherthanWednesbury III. WEDNESBURY UNREASONABLENESS Unreasonableness (WU) in requiring the court to consider whether a ‘fair balance’ has been The principle of unreasonableness as a ground struck as between the rights of an individual and of JR was emerged in the case of Associated the interest of the community (Srirangam, ProvincialPictureHousesvWednesbury 2016). Therefore, it is important to analyze Corporation (1948). Corporation was acting these two concepts comparatively to identify under the Sunday Entertainment Act's authority whether the and accordingly Corporation may allow the recognitionofmoreEuropeanfriendly opening of cinemas on Sundays subject to proportionalitytestwouldbean unnecessary conditions as the authority thinks fit. Provincial Picture Houses have been granted a license to expansion of the frontiers of JR and whether operate a cinema subject to the condition that it is a myth or reality in the present context. no children under 15 years of age are allowed. Inthispaper,SectionIIprovidesthe methodology The court held that the Corporation had made and Section III and IV respectively explains the an unreasonable decision and no reasonable origin and development of the WU and authority could have come to take such Irrationality in the context of UK and SL, as WU decision. When giving the judgment Lord and Irrationality are necessary to explain the Greene defined unreasonableness as "a concept of Proportionality. Further, Section V general description of things that must not discusses the origin and development of the bedone".Thereaftertheconceptof proportionality in the context of UK and SL and Section VI explores the comparative analysis unreasonablenesswasknownas between UK and SL in relation to status of these Wednesbury Unreasonableness. two concepts while focusing to answer to the When a decision taken by the AA is not questions of “Has the unreasonableness been reasonable, the court can challenge the replaced by the proportionality?” and ‘Whether decision based on unreasonableness. In the concept of proportionality is a myth or order to determine whether a decision is reality?” by giving special reference to UK and reasonable, the court will consider whether the SL. Section VII suggests recommendations and decision is within the range of reasonable finally Section VIII provides the conclusion. responses that the decision- II. METHODOLOGY makermighthavehadinthe circumstances (Law Wales, 2016).

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law After the introduction of WU English courts have theConstitutionwasinfringed.Justice referred to this principal when giving Sharvananda stated that the Commissioner judgments. In the case of West Glamorgan was wrong and unreasonably refused ELJP County Council v Rafferty (1987), under registration as a political party. Further, in Caravan Sites Act the council had a duty to Flying Officer Ratnayake v Commander of the Air provide camping sites for gypsies. However, Force and others (2008) the petitioner was a a group of gypsies was being evicted by the flying officer of Air Force and he argued that he council from council land without providing was dismissed without being convicted by a an alternative and adequate Court Martial. According to Air Force Act accommodation. Lord Gibson stated that the dismissal of an officer from the Air “that the council decision was not a decision Force can be done only upon a conviction a reasonable council could reach”. by a Court Martial. While citing the Lord Moreover, in Regina v Newham London Greenes’ explanation on how to exercise Borough Council, ex parte Sacupima and discretion reasonably? In Wednesbury case, others (2001), the council was under a Abrew J. stated that the decision of the statutory obligation to provide temporary respondent is unreasonable. houses for homeless families. To fulfill this Analyzing above cases it can be said that, obligation some of the homeless families when giving the judgment not only in past were sent to different seaside towns. Those in recent time also Sri Lankan courts have towns were nearly 100 miles far from recognized unreasonableness as a ground of London city and exceptions were made only JR. As a result, an aggrieved party was able when such a move would seriously threaten the to rely on unreasonableness and prove that health of a person. Lord Latham stated that “the the decision taken by the AA is not council's rigid policy, which took no account reasonable. Further, it has allowed judiciary of the effect on an to create standards in accordance with current adultperson'semployment,achild's trends. education, or a person's ongoing medical Althoughjudiciaryhasrecognized care, was WU”. From above cases it can be unreasonableness as a ground of JR it raises concludedthatEnglishcourtshave recognized Unreasonableness as a ground issues concerning certainty or clarity. This of JR. is because unreasonableness as a ground of JR is very ambiguous and broad concept. Also Dr. Shivaji Felix (2006) states that Thus, many scholars (Peiris, Zamir) have Wednesbury principle has become one of defined unreasonableness in their own the most acceptable principles in English ways. law (EL). For instance, Professor G.L. Peiris (1987) Since Sri Lankan legal system greatly influenced states,unreasonableness,“isa bytheEnglishALdevelopments,when comprehensive term which embraces a discussingabouttheapplicationof wide variety of defects including unreasonableness in SL, eventually courts have misdirection, improper purpose, disregard referred to this principle when giving decisions and it can be proved through several case laws. of relevant considerationsandadvertenceto InthecaseofGooneratneandothers v immaterial factors”. Accordingly if the CommissionerofElection (1987) the decisions taken by the AAs are based on Commissioner refused to register the Eksath above four factors the judiciary can quash Lanka Janatha Pakshaya (ELJP) as a recognized the decision based on unreasonableness. political party. The plaintiff argued that the ProfessorZamir(1992)defines, decision given by the Commissioner is unreasonable and his right under Article 12 of “Unreasonableness is different from other

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law grounds for the review of administrative made without reasoning their conclusion. discretion,notably,irrelevant Sometime courts have quashed the decisions by considerationsandimproperpurposes. just saying unreasonable without giving proper Irrelevantconsiderationsandimproper reasoning. purposesexaminetheadministrative As a result of these disadvantages and process…Ontheotherhand, broadness of the principle of unreasonableness, unreasonableness,accordingtothe courts had to find alternatives and they traditional view, does not seem to examine introduced two aspectsknownasirrationalityand the process, but rather the end product”. proportionalitywhichareevolvedfrom unresonableness. Accordingly, he completely distinguishes unreasonablenessfromirrelevant IV. IRRATIONALITY considerationandimproperpurpose. The concept of irrationality arises from the case However,ProfessorPeirisconcludes of Council of Civil Service Union v Minister of Civil unreasonablenessincludesabovetwo factors Service (1984) (GCHQ case). In this case Lord as well. Likewise, many scholars have Diplock has referred to irrationality rather than defined unreasonableness in different ways unreasonableness. He explained that, “it applies as there are no rigid and coherent toadecisionwhichis sooutrageousinits defiance standards toshowcasewhattheprincipleof of logic or of accepted moral standards that no sensible person who had applied his mind to the unreasonableness is. What was reasonable question to be decided could have arrived at it”. before 50 years ago might not be Further he stated that, “irrationality by now reasonable today and also what is canstandonits’ownfeetasanacceptable ground reasonable today might not reasonable after on which a decision may be attacked by JR”. 50 years of time (Marked by Teachers). By analyzing the decision in GCHQ case, some Moreover, it can be said that the principle of scholarsarguedthatthisisstill unreasonableness, unreasonableness gives judiciary an in contrast, some scholars argued that it is a unnecessary power to interfere with separate ground of JR. administration decisions and judges tend to For instance, Dr. Felix (2006) states that “since apply subjective approach when deciding then the Wednesbury principle has moved on to cases. As a result, the tendency towards become one of the major grounds of review in increasing uncertainty in the law has become English AL and the principle has been equated major issue. with irrationality”. Alsohehascited,“the Furthermore, this principle has been misused in Wednesbury principle, commonly regarded as a many courts, Paul Craig (2010) declares synonymforjudicialreviewengaging irrationality, analyzing 200 cases, and the court cites was subsequently to become one of the most Wednesbury principle but in fact applies a more widely accepted principles of English AL” lenient test. Some cases deploy terms such as (Forsyth & Hare, 1998). However Wade and ‘higher scrutiny’ or ‘anxious scrutiny’ without Forsyth argue the interpretation in irrationality precisely elaborating the meaning of these is different from WU and this is also known as terms. According to Craig, in many cases courts anxious scrutiny. have applied different terms without The significance of recognizing irrationality as a mentioning the separate ground of JR is that, petitioners can termunreasonablenessbutappliedsame rely upon irrationality and prove that the principles of unreasonableness. He argues that decision taken by the AA is not rational and seek by way of higher scrutiny or anxious scrutiny a writ. Both English courts and Sri Lankan courts have referred to the same principle of courts have recognized irrationality as a ground unreasonableness. Also some cases merely of JR. In recent case of Obar Camden Limited v conclude that a decision is or is not reasonable, The London Borough of Camden (2015) does or does not defy logic, was or was not a decision that a reasonable authority could have Camden Borough Council had granted full

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law permission to convert a public house into impose some residential flats subject to several obligationsonindividualrightsofthe citizen. conditions. The plaintiff argued that the In that occasion judiciary examined the decision of the council was irrational. The proportionality between the decision of the court submitted the decision in favor of the AA and the individual right which has been plaintiff and quashed the decision of the limited. Further, AAs are always under an Council. obligationtomaintainasenseof proportionandbalancebetweenits decisions Further,inSesadiSubasinghe(appearing and the public interest, so that the through her next friend) v Principal, authoritywillbeabletoguaranteeits decisions Vishaka Vidyalaya and 12 others (2011), the have had minimum impact to the public father of the petitioner complained that his interest. According to Craig and De Birca child was initially selected to the Visakha (1998), a test with four elements can Vidyalaya yet later rejected from the final berecognizedtodeterminethe list by the panel. The court held that the proportionality of a decision. rejection of the child was highly unreasonableandirrational. Whether,intheapplicable circumstances, the Whengivingthejudgmentjustice Gooneratne disputed measure is the least restrictive; stated that, “irrationality is one Whetherthereiscorrespondence between the ofthecommonlawgroundsofJRof importance attached to a particular aim and the administrative action. It is presumed that means adopted to achieve it and whether such public authorities are never empowered to means are necessary for its achievement; exercise their powers irrationally therefore irrational action byapublicauthority is Whether the impugned act is suitable and considered to be ultra vires”. necessary for the achievement of its objective and whether it does not impose excessive From above two recent cases it is clear that burdens upon the individual; and irrationalityasagroundofJRisstill recognized Whether there is any balance between the by the English and Sri Lankan courts. costs and benefits of the measure under V. PROPORTIONALITY challenge. Proportionalityisaconceptwhich originated In the case of Bank Mellat v H M Treasury and well established in European (2011) Lord Sumption identifies another AL.LordDiplockintroducedthe test for proportionality which commonly proportionality into EL in GCHQ case. In this used in modern context. case he has widened the grounds of JR by (i) Legitimate aim; referring to other grounds as irrationality, illegality and procedural impropriety. The (ii) Suitability (rational connection); concept of proportionality can be said as an (iii) Necessity; aspect which resulted from WU. Zamir (1992)statesthat,“theconceptof (iv) Proportionality in the narrow sense. proportionality is a basic element in fair The position of proportionality as a ground administration.Administrativepower should of JR in UK, obtained mixed responses not be exercised in a manner which before the enactment of Human Rights Act inflictsinjuryonprivateinterests 1998 (Felix, 2006). Sovereignty of the unproportionally to public needs”. parliament can be shown as a reason for Basically, proportionality mainly this situation since proportionality as a considered about individual rights. The ground of JR is much towards judicial decisions taken by the AA may sometimes activism. However, after the enactment of

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law Human Rights Act in 1998 (HRA), courts haveutilizedseveraladministrative proportionality has become a valid ground principlesmostlythenaturaljustice, of JR since it specifically deals with proportionality, reasonableness and public individual rights. In the case of R (Daly) trust doctrine (Gomez, 2006). In particular, vSecretaryofStatefortheHome Article 12(1) of the 1978 Constitution Department(2001)thesecretaryhas which recognizesabroadconstitutionalright introduced a new policy with regard to namely,“Righttoequality”hasbeen searching cells stating that prison officers interpretedbycourtsutilizing administrative are empowered to examine the prisoners principles. Therefore, when there is a FR legal correspondents in the absence of a petition, courts tend to utilize prisoner concern. HouseofLordsby administrativeconceptstojustifytheir examining the legality of the new policy decisions by following right based stated that excluding prisoners was not approach. It exihibits that there is a mix proportionatewiththerightsofthe prisoners betweenFRjurisdictionandwrit jurisdiction as the policy infringed a prisoner’s common in Sri Lanka (Gomez, 2006). law right under the ECHR. Further, in In AbeysekaravCompetentAuthority (2000) AvSecretaryofState for the Home the claimant challenged the legality Department(2004)applicants were ofcertainregulationssorttoimpose foreigners who had not been subjected to censorship of the transmission of sensitive criminal charges, had being imprisoned and military information. The claimant argued kept without a trial. They challenged the that freedom of expression under Article lawfulness of their detention on the basis 14(1)(a) has been violated. Supreme Court that it was contrary with the terms of ECHR. heldthat,theregulationswerenot House of Lords stated that the decision was disproportionate. FurtherinIndrajith disproportionate. Rodrigo v CECB (2009) it was based on an From above cases it can be concluded that application to a Labour Tribunal about a English courts have challenged the termination of a workman. Court held that, decisions oftheAAbasedonproportionality. the defendant decision to terminate the Moreover, it can be argued that in every plaintiffwasnotdisproportionate.By aspect English courts have used this analysing these cases, it can be said that the concept with regard to individual rights. conceptofproportionalityhasbeen accepted Since UK has a separate act which includes as a valid ground for JR and it is not a myth human rights, in enforcing those rights, but a reality in SL. proportionality as a ground of JR has VI.UNREASONABLENESSAND become a useful mechanism. Therefore in PROPORTIONALITY IN THE UK AND SRI present, the court uses the rights based LANKAN CONTEXTS approach and as a result human rights can be empowered by Even though, Sri Lankan courts have used writs.Itisfacilitatedbyunwritten proportionality in FR petitions it has not constitutioninUK(Udayanganie,2013). become the sole ground for their decisions. Accordinly, it is evident that application of The importance of proportionality is proportionality is a not a myth in the UK. whether it has been able to recognize a right, which is not recognized by the In SL, similar to the cases which pointed out Constitution. under unreasonableness, most of the cases whichrefertoproportionalityareFR Unlike the UK, there is no separate Human petitions. This is mainly because, when Rights Act in SL. However, Chapter III of the interpreting constitutional provisions 1978 Constitution of Sri Lanka mainly

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law focuses about FRs of the citizens. According throughEuropeanizationofUKand to Article 17 of the constitution, if there is a Internationalization of Sri Lanka. Therefore, violationofFRbytheexecutiveor limitations on FRs should be proportionate administrative action recognized by the to the value of relevant right (Udayanganie, constitution, a person can file an application 2013). in the Supreme Court under Article 126. When answering the question “Has the Therefore, it is argued that there is no need unreasonableisreplacedbythe proportionality?.”, to mix wirt jurisdiction and FR jurisdiction there are mixed responses by many with each other since, written constitution scholars (Taggart, Zamir, Felix). In R v in SL helps in laying down the writ Cambridge Health Authority, Ex parte B jurisdiction and FR jurisdiction as two (1995) court decided proportionality separate grounds. Therefore, there is no cannot be considered as a separate ground necessity to protect FR through writs of JR. Furtherheldthat,“Wednesbury (Udayanganie, 2013). reasonableness and proportionality are Nevertheless, the question is, whether all different tests. The test of proportionality is FRs of the citizens are recognized by the not needed in the English legal system. Constitution or not. The answer is clearly Wednesbury test provides a sufficient test”. ‘NO’ because, only a limited number of This case was decided before the arrival of rights havebeenrecognizedbythe1978 HRA and it exhibits that courts have refused Constitution.Thus,theimportanceof to consider proportionality as separate recognition of proportionality comes into ground of JR. However, even after the force, when a decision of an AA violates arrival of HRA some judges [Smellie CJ., individual rights which are not recognized Lord Walker in Pro-Life Alliance (2003), by the Constitution. Wild J. in PowercoLtdvCommerce Commission (2005)] refused to recognize For instance, in Bulankulama and Others v. proportionality as a separate ground for JR. Secretary,MinistryofIndustrial In R (Pro-Life Alliance) v BBC & Others Developmentandothers(2000), (2003) Lord Walker stated “Wednesbury AmerasingheJ.states,theproposed test for all its defects had the advantage of agreement for exploration and mining of simplicity and it might thought phosphateislikelytoresultin unsatisfactory that it must now be replaced disproportionatelyandunreasonably by a much more complex and contextually damaging the surrounding environment. sensitive approach”. Further, he identifies the importance of protecting international rights under the Nevertheless, many scholars in the past and Stockholm Declaration on the Human presentupheldtheviewthat Environment (1972) and the Rio unreasonableness should be replaced by the Declaration on Enviroment and proportionality.Forinstance,inR (Alconbury Development (1992) in exploiting natural Developments Ltd) v SS for Environment resources. Therefore, it can be said that (2001) the court held that even without when recognizing rights which are not reference to the 1998 act the time has come identified by the Constitution, to recognize proportionality as a partofEL. proportionality can be used as a useful “Trying to keep Wednesbury principle and mechanism to enforce and absorb such proportionality in separate compartments rights. seems to be unnecessary and confusion”. Moreover, in R v Secretary of State for the As a result it is argued that, proportionality Home Department (2002) court recognized came forward in the phase of human rights proportionality as a part of EL.

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law ReferringtotraditionalWednesbury reasonableness at some point. As standards Lord Cook held “I think that the mentioned in R v Secretary of State for day will come when it will be more widely Foreign and Commonwealth Affairs (2015) recognized that the Wednesbury case was “proportionalitychallengewherea an unfortunatelyretrogressivedecisionin fundamental right is not involved”. Further, English Administrative Law”. A modern accordingtoTaggart(2008),where scholar Gewanter (2017), while agreeing to administrativedecisionsinvolverights, majorityacademicviewstatesthat proportionalityshouldreplacethe proportionality will eventually replace WU. unreasonableness test as a distinct head of Also he stated that “…what is understood to review. Proportionality involves a more be proportionality review currently will not intense analysis of the decision and the be the standard used in future cases. merits of a decision will be more relevant. Instead, it will bear the hallmarks of both Such an intense analysis is justified when current Wednesbury and proportionality, rights are involved. Where rights are not becoming a new hybrid doctrine”. In recent involved, but rather ‘public wrongs’, the cases of orthodox WU will be the only appropriate KennedyvInformationCommissioner (2014) head of review as an intense review is not and Pham v Secretary of State for the Home justified (Ferrere, 2007, p.39-40). Department(2015)courtshave recognized In SL, although proportionality acts as an proportionalityasageneral effective mechanism, still there is no groundofJRwhichconfirmsthat evidence to prove that courts have replaced proportionality has become a reality in the the unreasonableness by proportionality. UK. Even so, sooner proportionality will find its Not only English scholars but also Sri proper place in both UK and SL as Dr. Felix Lankan scholars(Felix,Peiris)claimedthat (2006) states it will only be a matter of unreasonableness must be replaced by time. Nonetheless, the proportionality did proportionality. Dr. Felix (2006) in his not completely replace the unreasonabless, article states “Wednesbury standard of from above judicial proceedings and review has outlived its utility and is of scholarly argumentsitisunarguablethatthe marginal relevance in contemporary application of proportionality as a separate judicial review in Sri Lanka”. Further he ground of JR has become a reality in the states, althoughcourtshaverecognized present conext. unreasonableness in many cases, when the As mentioned earlier unreasonableness is cases analyzed critically, it exemplify in very broad and it’s an umbrella term most ofthecasescourtshaverelied on concept which can include many concepts. proportionalityratherthan In this regard proportionality is not a novel unreasonableness. Prof. Peiris (1987) also concept and it has been already in existence argued, in modern law unreasonableness as a part of unreasonableness. Further, it’s a would certainly acquire less significant than well-known fact that it was derived from is actually was. unreasonableness as a narrowed concept in From above scholarly arguments and cases ordertoavoiddefectsofthe it is evident that in UK, there is a unreasonableness. As both concepts have replacement of unreasonableness by many similar characteristics Dr. Nehushtan proportionality to some degree. However, (2017)statesproportionalityand still proportionality has not been able to unreasonableness are non-identical twins. completely eliminate unreasonableness VII. RECOMMENDATIONS because, there’s a still room for

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law When considering individual rights, it is Moreover, by analysing all the cases and clear that proportionality provides a more scholaryargumentsitisevidentthat sufficient test than WU. In the Sri Lankan proportionality as a separate ground of JR is context, courts tend to follow right base not a myth but a reality in both UK and Sri approach and in this regard proportionality Lankan AL. At the same time it is important can be utilized as a useful mechanism in to note that the proportionality test should identifying individual rights which are not not be a myth in a country like SL, becuase recognizedbythepresent Constitution. when decisions of the AAs affect the rights However, when incorporating international of citizens which are not recognized by the rights to domestic legal system, judiciary Constitution, affected parties must be must be very mindful not to incorporate privileged to challenge such decision and rights which contradict with the seek a remdy. In this regard proportionality constitutional provisions since, the would be an adequate mechanism to fulfil Constitution is the supreme law of the the said requirement. country.

VIII. CONCLUSION REFERENCES The ultimate goal of AL is to protect the Craig, P. (2010). Proportionality, Rationality citizens from abuse of power by the AA and and Review. New Zealand Law Review, upheld Rule of Law. In order to achieve its pp.265-301 goal, courts have recognized new grounds of JR other than traditional grounds. In a Craig, P. and Birca, G. (2015). EU Law: Texts, modernsociety,introductionofnew grounds CasesandMaterials.6thed.Oxford University of JR is essential because, in some occasions Press traditional grounds may not be compatible Felix, S. (2006). Engaging Unreasonableness with emerging situations. In every concept and Proportionality as Standards of Review there are pros and cons, thus in order to in England, India and Sri Lanka. Acta avert negative impacts, new grounds must Juridica 95, pp.94-116 come into force. That is the only way where Ferrere, R. (2007). Proportionality as a the law prevails in a developing society. Distinct Head of Judicial Review in New It is true that unreasonableness provides a Zealand.[Online]Availableat: sufficient test to challenge administrative https://www.otago.ac.nz/law/research/jou decisions, however when it comes to rnals/otago036271.pdf [Accessed 03 July individualrightsproportionalitymay 2020] providemoreadequatetestthan Gewanter, A. (2017). Has Judicial Review on unreasonableness. Especially in a country SubstantiveGroundsEvolvedfrom like SL where there is no separate human Wednesbury towards Proportionality. 44 rights act, proportionality would be a useful Exeter Law Review Vol. 44, pp.60-75 mechanism to enforce and safeguard such rights in case of a violation by the AAs. Gomez, M. (2006). Blending Rights with Therefore, it can be said that, recognition of Writs: Sri Lankan Public Law's New Brew. proportionality as a separate gorund would Cape Town, South Africa: Juta, pp.451-477 not be an unnecessary expansion of the Jowell, J. (1996). Is proportionality an alien frontiers of JR because, itisapart of concept?. 2 Eur. Pub. L. 401 unreasonableness which acts as a useful mechanism to enforce individual rights. Law Wales. (2016). what is the test for Unreasonableness? [Online] Available at: https://law.gov.wales/constitution-

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law government/public-admin/intro-admin- Taggart,M.(2008).Proportionality, law/welsh-government-guidance-on-making- Deference, Wednesbury. New Zealand Law good-decisions/Is-the-decision- Review, pp.423-481 reasonable/what-is-the-test-for- unreasonableness/?lang=en#/constitution- Talagala, C. (2011). The Doctrine of Ultra government/public-admin/intro-admin- Virus, and Judicial Review of Administrative law/welsh-government-guidance-on-making- Action. Bar Association Law Journal Vol. good-decisions/Is-the-decision- XVII, p.1 reasonable/what-is-the-test-for- unreasonableness/?tab=overview&lang=en Udayanganie, U. (2013). Expanding the [Accessed 29 June 2020]. Scope of Judicial Review using Constitutional Interpretation in Sri Lanka: A Marked by Teachers. The Wednesbury test, Comparative Study of the Development of for all its defects, had the advantage of Judicial Review in UK. GSTF International simplicity, and it might be thought Journal of Law and Social Sciences (JLSS) unsatisfactory that it must now be replaced Vol.3 No.1, pp.48-55 (when human rights are in play) by a much more complex and contextually sensitive Wade,W.(1998).SirJohnLaws 'Wednesbury'. approach[Online]Availableat: In: Forsyth, C. ed. and Hare, I. ed., The http://www.markedbyteachers.com/university- Golden Metwand and the Crooked Cord: degree/law/the-wednesbury-test-for-all-its- Essays in Honour of Sir William Wade QC. defects-had-the-advantage-of-simplicity-and-it- Oxford University Press, pp.185-201 might-be-thought-unsatisfactory-that-it-must- now-be-replaced-when-human-rights-are-in- play-by-a-much-more-complex-and- Zamir, I. (1992). Unreasonableness, Balance contextually-sensitive-approach.html of Interests and Proportionality, 11 Tel Aviv [Accessed 30 June 2020]. U. Stud. L. 131 Meng, C. (2006). Judicial Review [Online] Acknowledgment Available at: I would like to acknowledge Mrs. LM De https://llbpubliclaw.blogspot.com/2006/05/ju dicial-review.html [Accessed 01 July 2020]. Silva, lecturer in law at General Sir John Kotelawala Defence University, Sri Lanka, Nehushtan, Y. (2017). UK Public Law Non- for the continuous support and guidance IdenticalTwins:Reasonablenessand providedtocompletethisresearch Proportionality. Israel Law Review Vol. successfully. 50(1). Cambridge University Press Author Biography Peiris,GL.(1987).Wednesbury Unreasonableness: The Expanding Canvas. CambridgeLawJournalVol.46(1). Cambridge University Press, pp.53

Sidebotham, N. (2001). Judicial Review: Is

There Still a Role for Unreasonableness? [Online]Vol.8(1)Availableat: HA Jinasena is a third year undergraduate http://www5.austlii.edu.au/au/journals/MurU in law at General Sir John Kotelawala EJL/2001/5.html#n2 [Accessed 01 July Defence University, Sri Lanka. 2020].

Srirangam, V. (2016). A Difference in Kind – ProportionalityandWednesbury. IALS Student Law Review Vol. 4(1), pp.46-66

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law Paper ID: 447 Abuses against Juvenile Offenders as National Security Threats; Rehabilitation and Reintegration of Juvenile Offenders in Sri Lanka

DA Munaweera

General Sir John Kotelawala Defence University

[email protected] Abstract - Not every child or youth is system and to provide fortunate enough to have a childhood they necessarylegislativeandinstitutional would like to remember. A handful of approaches for rehabilitation in order to youngsters tend to end up in prison, as juvenile properly reintegrate juvenile offenders for the offenders. All too often, the concern offered by enhancement of juvenile justice through the the government for children does not extend to protection of juvenile offenders as a solution those juvenile offenders who are yet for the issue of effectively punishing juvenile vulnerable children when caught up in the offenders and preventing abuses against wrong side of law despite the fact that they are juvenile offenders that has become far more also a portion of this society and the future of complex and sensitive in its entirety whilst the country. Abuses against juvenile offenders striking a balance between juvenile justice and who are perceived to be threats to the national protecting national security. The objective of security of the country that seem to be a this study will be achieved by the utilization of phenomenon in the global context therefore both qualitative and quantitative research remains as a hidden layer in Sri Lanka with methods that involves a broad assessment of less concern. Hence, it is of vital importance to current legal instruments, their gaps and their every human being in the society to establish a adequacy to a relevant extent. stable foundation that could raise juvenile Keywords— Juvenile Offenders, Juvenile offenders as productive adults with a Justice, Rehabilitation guarantee of a brighter future. It is true that, the deliberation drawn towards the juvenile I. INTRODUCTION offenders and juvenile justice in Sri Lanka by Sri Lanka being a country that has committed the government and the society have been for the guaranteeing of rights of children to increased to a considerably higher level due to develop to their full potential in a safe and the initiatives taken in the view of caring environment and to eradicate all forms reintegrating juvenile offenders into the of abuse and violence against children society through rehabilitation making the however, faces the crucial issue of juvenile punishments more effective. However with the offenders. Juvenile offender being alluded as a rise of the rate of juvenile offenders and abuses child under the age of 18 years and charged of towards them in the recent years, it may be committing a crime or any illegal activity, as precisely pointed out that the existing policies per the statistics of the Department of Prisons and laws are not sufficient enough to reflect a for 2017 reveal that the young offenders who proper solution for the protection of juvenile are in the number of 428 are of age 16 and justice leading to the question, how a below (Joseph, 2019). In Sri Lanka criminal considerable concern with efficacy could be law pertinent to children and youngsters, who devised in the country regarding this issue. are resolved as not mature enough to be Therefore, this study intends to critically considered answerable for criminal acts is the analyse the prevailing legal framework and to juvenile justice. According to this juvenile assess the institutional initiatives relating to justice system it attempts to rehabilitate and juvenile offenders, failures in the existing

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law reintegrate children who are under the by the judicial decisions from the Indian purview of juvenile justice law instead of Jurisdiction and verifiable data acquired severely punishing them (De Silva, 2010) as a through the adoption of quantitative research result of seeking a way to win the struggle that method which obtained statistical data from has been experiencing by every nation on the records and reports of the Department of initiating a form to effectively punish a Prisons and the Training School for Youthful juvenile. The question that is of grave Offenders with regard to the rate of increment significance with regard to juvenile offenders of juvenile offenders in the rehabilitation phenomenon is apart from the society’s sole centres. Through the employment of both the perspective that juvenile offenders are a threat qualitative and quantitative research methods despite of recognizing the abuses against the this study was able to assist certain claims and juvenile offenders as the real threat to the comeintocertainconclusions.Thekey limitation national security is to pause and think about of the study was that the findings how did these children or youngsters end up in werenotbasedondataobtainedfrom interviews. becoming a threat to the society as well as to III.JUVENILE OFFENDERS their own self. Therefore this research aims to seek the root causes for a child to become a To begin with, it is pertinent to discuss and threat as a juvenile offender, to evaluate the understand as to how the notions of juvenile adequacy of utilizing necessary legislative and and juvenile offenders are perceived and institutional approaches to rehabilitate and shaped under the Sri Lankan legal perspective. reintegrate juvenile offenders into the society With the understanding of the vital importance as productive citizens, to formulate a proper to define a child in order to provide the legal framework to safeguard and make necessary protection to a child or a youngster juvenile offenders acceptable to the society under juvenile justice there are several and to draw the deliberation of the authorities statutes in Sri Lanka that deal with children to recognize the importance of protecting specifically such as; Adoption of Children’s Act juvenile justicebyputtingforwardfurtherlegal No. 24 of 1956, Children and Young Persons recommendationsandproperinstitutional Ordinance (CYPO) No.48of1939,Conventionon practices for the minimization of unfavourable Prevention and Combating Trafficking in impacts to this vulnerable party as well as to Women and Children for Prostitution No.30 of the society. 2005 and EmploymentofWomen,Young persons and Children Act No.47 of 1956 and II. METHODOLOGY Lanka Children. CYPO being the main domestic For the purpose of achieving the objective of legal instrument with regard to juvenile justice the research and for the completion of the has defined a child as a person beneath the age study a blend of both qualitative and of 14 years and a youngster as a person quantitative research methods were between 14 and 16 years (Children and Young accompanied. The qualitative research method Persons Ordinance 1939) whereas, Children’s was adopted by utilizing Charter has defined a child as a person beneath primarysourcessuchasthe Constitution, the age of 18 years. Be that as it may, juvenile legislations, conventions, statutes and judicial offender can be alluded as a child or a decisions and secondary sources youngster who is charged of committing a suchasbooks,journals,webarticlesand crime or be part newspapers respectively that has identified ofunlawfulactivityandwhoiswithan legal issues associated with juvenile offenders antisocial,hostile,violentanddisobedient and juvenile justice through the data obtained. behaviour where the offences they commit can Theargumentoftheresearchwasalso supported range from petty offences such as begging, sale

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law oftobacco,pettystealing,vagrancy, prostitution, Whilst prohibiting imprisonment of children trafficking of heroin or narcotic drugs, except in cases where the court confirms they consuming alcohol in a public place, causing are of unruly or debased character that they mischief, force, criminal force, assault and cannot be detained by a remand home or a simple hurt to serious crimes such as certified school by the CYPO (Children and robbery,grievoushurt,physicalassault, murder, Young Persons Ordinance 1939), it along with sexual abuse and offences against State such as the Prisons Ordinance also provides for a terrorism (Niriella, 2020). partition of juvenile prisoners from adult prisoners (Prisons Ordinance 1877). As per A. Legal Framework pertaining to Juvenile Section 75 of the Penal Code that has provided Offenders in Sri Lanka in light of Juvenile Justice several sections with regard to offences Juvenile Justice being the criminal law committed by children has described 8 years applicable to juvenile offenders there are as the minimum age of criminal responsibility several legislative enactments that have been (Penal Code 1995). Under Section 76 it also established to deal with the law relating to provides that those who are above 8 years but juvenile justice in Sri Lanka. The law below 12 years cannot be punished except pertaining to the administration of juvenile where they have attained sufficient maturity justice is contained fundamentally in the (Penal Code 1995) and likewise, as per Section Children and Young Persons Ordinance No. 49 288 of the Code of Criminal Procedure persons of 1939 which is applicable to persons below under the age of 18 years cannot be imposed the age of 16 years. This Ordinance also with death sentence (Code of Criminal accommodates the foundation of juvenile Procedure Act 1979). It is obviously critical to courts for the hearing of any charge against a remember that the Constitution of Sri Lanka as child or youngster, aside from where the well provides specific rights that can be alleged charge is on murder, attempt to enjoyed by a child in a similar manner as other murder, culpable homicide not amounting to citizens. murder, attempt to commit culpable homicide B. Issues in the existing Legal Framework or on robbery (UNICEF, n.d.). In addition CYPO has also stipulated provisions with regard to Age is the central factor of the classification of the procedures involving children in the adults and children in any circle. As per the juvenile court that are Magistrate Court and prior discussion it is apparent that in Sri Lanka Primary Courts which exercise juvenile justice there exist a confusing and an incompatible such as, these courts should be presided over situation with regard to defining a child and a by a Juvenile or Children’s Magistrates and that youngster. A child who is defined under CYPO the Children’s Magistrate is required to clarify as a person beneath the age of 14 years and a the substance of the supposed offence in youngster as a person between 14 and 16 simple language. In addition, Youthful years is not the same under Children’s Charter Offenders (Training Schools) Ordinance No. 28 of Sri Lanka which defines a child as any of 1939 and Probation of Offenders Ordinance person under the age of 18 years. However, No. 42 of 1944 provide for under CYPO persons between 16 to 18 years thedetentionofjuvenileoffendersand probation are not considered as a juvenile. Furthermore, of juvenile offenders respectively. in the YouthfulOffenders (Training Schools) Furthermore, the Penal Code Act No. 2 of 1882, Ordinance No. 28 of 1939 it has provided those Code of Criminal Procedure Act No. 15 of 1979 who have arrived at the age of 16 and who and the Prisons Ordinance No. 16 of 1877 in have not yet arrived at the age of 22 as the samemannercontainseveralprovisions youngsters (Youthful Offenders Training applicable to juvenile offenders (UNICEF, n.d.). Schools Ordinance 1939). In the same manner,

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law the Sri Lankan Penal Code which sets 8 years the act fails to specificallymention the as the minimum age of criminal liability roleofPOsin facilitatingthe provides that children above 12 years can be reintegrationofjuvenile offenders to the charged with criminal liability despite society. considering if they have attained sufficient Another key gap in observance of the law and maturity to understand the nature of their enforcement is that special Juvenile Courts conduct although a person under 14 years and dealing with offences committed by juveniles person under 18 years is defined as a child hasnotbeenofferedimpacttoona countrywide who is immature or irresponsible under the premise. In fact, there is just a single Juvenile CYPO and Children’s Charter. It is also Court and that is in Colombo. noteworthy that in the situation where the age 16 has been made the minimum age to have Moreover, the delays in the adjudication of sexual consent legally, the provision of 12 cases that occur every now and again have years as the minimum age to marry of a antagonistic results on juvenile offenders, Muslim girl under the Muslim Marriage and especially when they have not been discharged Divorce laws could be in contradiction where on bail and are sent to remand homes on having sexual intercourse with a girl under 16 pending trial (De Silva, 2010). When dealing years is made a punishable offence on the with juvenile offenders the interruptions that ground of statutory rape under the Penal Code may occur in the schooling will then that could lead to a minor married to a Muslim consequently be a grave negative outcome of girl a juvenile offender for committing rape the law’s delay. wrongfully. These befuddling situations have C. Child’s Perspective; What causes for a child to made the undertaking of become a Juvenile Offender executingjuvenilejusticestandards “Children are like clay, that can be moulded troublesome, uncertain and also inconsistent. into any shape” It is of fundamental concern to When children coming into contact with the examine the personal, social and financial justice system there are several shortcomings impacts which would conceivably be added to that would violate the rights of juvenile make a child a juvenile offender instead of offenders as children such as according to the letting this get out of hands as humans in the CYPO it is not required to explain a child about society who should rather stop and think for a the progress of his or her case or about the while why these children have become judicial process. offenders at such a young age making them Whenitcomestojudicial proceedings, ended up in correctional centres for juvenile provisions regarding therighttolegal offenders. In response, it is justifiable to be in representation of children are not provided the opinion that these children could have a under the CYPO. blend of numerous reasons which especially includes abuses against children that drove According to Section 42(2) of CYPO a detention them to choose a criminal way of life where order made by an approved or certified school adults could partly be held liable. lasts for a 3 years period of time which is longer than the period an adult would be When looking into visible personal and social detained for a similar offence (Children and factors several causes for a child to become a Young Persons Ordinance 1939). juvenile offender can be found. Due to broken families, living with an abusive parent or Although the probation officers (PO) are parents and living with a divorced parent a tasked to ensure care and protection of child would not be able to receive enough love, children in the justice system under the CYPO care and acceptance which are essentially

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law required for their potential to become a good movies that represent sex and violence in a human. Apart from these, living with a family greater level which could make a child to of criminals or having a mother who is a sex experience those things happen in the movies worker would lead for the rejection of a child in reality. Moreover, economic aspects also from the society. In the same sense there is a have a significantcontributionintheoffences high possibility for orphans who have been committed by juveniles. When poverty comes rejected from his or her own parents to into scene there are several neglects of the become part of criminal gangs during their basic needs of children that can be identified path of seeking for belonginess, acceptance such as inability to provide children with and their own happiness. As per the records of proper education and other basic necessities in a Child Activity Survey which was done in the life which could lead a child to commit offences year 2016 it has revealed that children under such as theft in order to fulfill their desires the age group of 5 to 17 years, 3% of children whereas, in the similar manner but for live with father only, 15.7% live with mother different intention children of rich families only and 3.5% of children live without both the with busy working parents tend to involve in parents (Child Activity Survey, 2016). Apart such petty offences for the sake of being from these visible factors there are some other distant from feelings of isolation or for the causes that are overshadowed in the society sake of fun (Niriella, 2020). which would impact a child personally and For further clarification on the importance of socially. Domestic violence that could be considering the root causes of making a child termed as family violence would abuse a child to become a juvenile offender by looking into mentally and physically; mentally through Indian judicial decisions the very recent case verbal abuse, emotional Mukesh v. State (Mukesh Singh v State, [2017]) abuse,neglectofeducationalneeds, famously known as Nirbhaya Judgment can be psychological maltreatment and physically taken into account. Firstly, it is important to through injury upon child which includes note that while sentencing the four adult burning, hitting, beating and harming. This defendants to death by hanging on the situation gets far dirtier when a child gets convictions for rape, murder and assault the sexually abuse by an adult or a relative when juvenile convict was given only imprisonment she or he is with a lower protection where they of three years as per Juvenile Justice Act of have beenleftalonebytheirparents intentionally India. The second fact to be noted is as per the or unintentionally for instance having a record of the Juvenile Justice Board that tried mother who is working as a migrant worker. him, the investigation conducted by them in As per the records of NCPA in 2015 among seeking for the causes that made the juvenile their complaints, 2317 were regarding cruelty offender in this case brutal. Evidence revealed to children, 885 neglecting of children, 735 on that the offender was weighed down by sexual harassment and 433 were on rape poverty since his childhood he was a person (National Child Protection Authority Report, who has fled from home as a small boy and on 2015). Besides the aforesaid causes, illiteracy, the day of the fateful night of the crime he was immaturity, moving into a strange landed on the bus where the victim was raped society,irresistibleimpulsesandearly by mere chance (Press Trust of India, 2017). psychological maturity could also impact a child negatively. In spite of the hardship in prioritizing the specific causes to become juvenile offenders Modern day technology also seems to have a the above causes can be recognized as having role in causing a child to become a juvenile much contribution to the issue leading to come offender with the bad influence of present-day into a conclusion that one day the victims of

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law child abuse may repeat the violent acts they 400 334 364 experienced as a juvenile offender or as well as 253 an adult offender. 200 118 132 144 64 D. National Security Perspective; Abuses against 37 47 24

Juvenile Offenders as National Threats Admissions 0

Number of Number Direct 2015 2016 2017 2018 2019 According to the criminal law framework in Year Male the country, the offences committed by juveniles cannot be disregarded any longer due Source: Department of Prisons, 2020 to the statistics that have demonstrated an expansion of juvenile in the Above chart shows the number of direct recent years. Very high number of children and admissions of unconvicted prisoners that have youngsters fall prey to allurements and has been made in the years of 2015, 2016, 2017, consequently violated the law (Chirlesan and 2018 and 2019of those who are under the age Chirlesan, 2013). Not just the quantity of group of below 16 years. wrongdoings committed by youngsters has However what is of vital importance to be the expanded yet additionally the degree of their topic of discussion is the abuses faced by violence. juvenile offenders under the purview of the Figure 1: Drug offenders according to age legal framework relating to juvenile justice group, instead of giving so much gravity for the topic of threats done by the juvenile offenders to the 2015-2019 society through the offences committed by them, as being persons who are incapable of 2000 1832 attaining sufficient maturity to understand the 1500 nature and the consequences of their conducts.

944 952 Hence, it may be unfair and wrong to ignore a 1000 731 child for the reason of becoming an offender in 588 a situation where the juvenile offender being 500 under the age of 8 years since it is considered

0 to be the minimum age to have mens rea to of Offenders Number Drug 2015 2016 2017 2018 2019 commit a crime. Year Be that as it may, it can be observed that abuses against juvenile offenders could be the Source: Department of Prisons, 2020 most controversial issue which is not yet For Instance, the above chart shows the resolved because more than the reasons that increment of drug offenders who are under the made a child or a youngster a juvenile age group of 16 and under 22 years during the offender, the abuses faced by the juvenile last five years. offenders when they are detained or when they are being ignored by the society as well as According to the statistics of the Department of from the juvenile justice system of the country Prisons for 2017 reveal that the young can be of greater impact for them to be serious offenders who are in the number of 428 which offenders leading to the issue of threats to represent 384 males and 64 females are of age national security. 16 and below (Department of Prisons, 2020). When looking into the issue of abuses against Figure 2: Direct Admissions of Unconvicted juvenile offenders several violations of their Prisoners according to Age Group 2015-2019 rightsandabusescanberecognized significantly.

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In case of child combatants who are being re- transmitted diseases in situations where poor institutionalized in Sri Lanka for being direct girls are forced to sell their bodies. In contrary participants of war which was front by the to such situations there are also some other Liberation Tigers of Tamil Eelam (LTTE are situations where young people being rejected often detained on groundless suspicion and in their villages when they get released from frail evidence for the fact of being a part of an institutes that have been established for the armed group or for being a relative of a treatment of juvenile offenders such as terrorist family member. Due to gaps in the certified or approved schools. Accordingly, it existing legal and institutional framework with can be observed that there is a direct nexus regard to juvenile offenders also some issues between child abuse and juvenile offenders have arisen such as making juvenile offenders where it can be clearly assumed that child share the same cells with adult prisoners abuses cause an abused child to become a during remand which could lead to additional violent juvenile offender later in the future. risks of physical and sexual violence as well as IV. REHABILITATION AND REINTEGRATION making their behaviourworsebymakingthem OF JUVENILE OFFENDERS accompaniedbyexperiencedoffendersor criminals. In the same manner with law’s delay Discipline, punishment and imprisonment are negative impacts to their education may occur from numerous points of view are as old as the depriving their right to freedom which historical backdrop of the humankind. includes their right to education and also their Although modern world has experimented right to employment which could abuse a child intensely with or a youngster mentally. Most importantly theideaandthoughtofdisciplineand because of the ignorance of the society and the punishment; in case of juvenile offenders the juvenile justice system of the country with ultimateaimneedstoconsistentlybeat regard to the protection of a child that could endeavour at rehabilitation and reintegration lead children or youngsters to face serious (Paper Due, 2014). Due to the reason of taking abuses and threats as mentioned earlier can a therapeutic approach rather than a harsh or make the worse type of juvenile offenders with a punitive approach by the Juvenile Justice so much hate towards the society they live in. Courts in imposing punishments towards Violent young offenders are often known to juvenile offenders as the first option they are have come from homes of criminal parents sent to correctionalcentresprioritizingthe where children have been forced to act as importanceofrehabilitationinorderto properly couriers for drugs (Joseph, 2019). reintegrate them into the society. Mental Consequently there have been very recent growth of children, development of instants where children have been found while professional training opportunities, moulding transferring heroine or any narcotic drug in towards good behaviour and qualities and to public places such as in buses, trains and near make a juvenile offender acceptable to the schools. Indeed, this can be considered as the society (Gunawardhana,2020)canbe main reason for the birth of many drug considered as the aims of each and every addicted or alcoholic juveniles. Although rehabilitation process conducted by all the prostitution is described as one offence that is institutions established for the purpose of committed by juvenile offenders the treating juvenile offenders in Sri Lanka. consequence of engaging in prostitution could A. The existing Rehabilitation System for make a juvenile offender a victim of mental Juvenile Offenders and physical abuse with interrupted education, The rehabilitation of juvenile offenders waiting broken families and lifestyles, mental illnesses on the probation or in custodial care is as well as health problems such as sexually

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law managed by the Department of Probation and 23 Child Care (Gunawardhana, 2020). In Sri Lanka 25 20 18 juvenile offenders are rehabilitated in remand 20 16 15 homes, certifiedschoolsandapprovedschools. 9 Therefore, it can be stated that there are three 10 types of correctional institutions that are built Admissions 5

Number of Direct up for the rehabilitation of children and young 0 2015 2016 2017 2018 2019 persons during the period of punishment Year under the Children and Young Persons

Ordinance (CYPO). At present there are 18 remand prisons where two centres have been Source: Department of Prisons, 2020 operating at Pallansena and Taldena for juvenile offenders as Correctional Institutions for Youthful Offenders. Furthermore, there are The above chart shows the number of direct four Certified Schools that are located in admissions that have been made to the Makola, Hikkaduwa, Training School for Youth Offenders at KeppetipolaandRanmuthugalaandone Training Homagama in the years of 2015, 2016, 2017, School in Watareka, Homagama. For a period 2018 and 2019 of those who are under the age not exceeding one month a juvenile offender group of 16 and below 17 years. who is under the age of 16 years could be sent to a remand home whereas for a maximum B. Issues in the existing Institutional Framework period of three years a young person could be and the Rehabilitation System sent to a certified or approved school whereactivitiesonrehabilitationare Throughtheassessmentofinstitutional practices conductedduringthatperiod.Itisalso including the prevailing rehabilitation system importanttonotethefurnishing of formal with regard to juvenile justice in Sri Lanka education and vocational training to children several gaps can be identified. while they are staying at these institutional In the adoption of rehabilitation for the centresthatarefortreatmentof uvenile juvenile offenders in order to reintegrate them offenders where systematic vocational training it is confronted with numerous issues that which includes motor mechanism, carpentry, arise on thegroundsofbothpracticalandlegal sewing work, agriculturalworketc.and standards. education through the government schools in the surrounding with some necessary facilities. Duringthevocationaltrainingprograms conductedincorrectionalcentresforthe rehabilitationofajuvenileisbasically centralized Figure 3: Direct Admissions at the Training upon training them only on home School for Youthful Offenders, Homagama science,engineeringworkandsewing. according to the Therefore, it is clear that there is a lack of a proper and a well-advanced vocational age group 2015-2019 training programs in the certified or training schools. Despite the fact that the number of the admissions of juvenile offenders are on raise the institutional correctional framework’s capacity has not reached out in shape at a similar rate. Because of this reason various functional issues have been made with respect

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law to the institutional rehabilitation programs in are not provided with proper educational Sri Lanka. Lower standards in the institutes, facilities and legal assistance shortage of institutes, the insufficient Besides the aforesaid issues due to the allocation of space to conduct particular inadequacy of the legal framework prevailing activities that helpstheprocessofrehabilitation, with regard to juvenile justice as well give rise overcrowding, hardships in giving appropriate to certain specific issues in the rehabilitation consideration and assurance to the juveniles, system. Infringement of child rights which challenges in leading the treatment programs includes ill-treatment, torture and their right in a legitimateway,thecurrentrecovery to privacy and health, interruptions in strategies that do not sufficiently address the education due to law’s delays can be added to issues of the juveniles, monetary constraints of the list of defects in the laws regarding the running great rehabilitation programs, lack of rehabilitation and reintegration system in Sri stafforthelackofpreparationand qualifications Lanka. of the existing staff and the denial ofthechildrenafterrehabilitationbythe society V. CONCLUSION as well as by their own relatives can be added Children being the future of the country, every to list of practical issues in the prevailing child should be provided with a decent rehabilitation system in the country. childhood through the strengthening and Also, another prominent issue with regard to guaranteeing of their rights and pride which the probation and correctional centres where may pave the path for development of the rehabilitationprocessesareconducted is nation. Hence, it is the responsibility of each children as juvenile offenders who are within and every adult citizen in the society to protect the justice system are not provided with children from social evils regardless of proper educational facilities and legal whether they are victims of abuse or juvenile assistance offenders. Besides the community-based protection of children, rehabilitation The partitionthatisrequiredtobe incorporated institutions also play an active role with regard between adult prisoners and juveniles during to the protection of juvenile justice in the remand is likewise not strictly adhered in country. It could be stated that when the every case. In the same manner, juveniles are juvenile justice system draws once in a while accompanied by adults in theirdeliberationstronglytowards remand. rehabilitation and reintegration it becomes a Another unacceptable practice which is in need win-win situation for the child offender as well of earnest revision is that of setting youngsters as to every other person in the society. who are taken into police custody except for Therefore from the perspective of the national reasons of criminal offences along with the security of the country also adhering to individuals who have carried out such rehabilitation instead of punitive punishments offences. could help mitigate threats towards the national security where rehabilitation operates Moreover, the knowledge gap and inadequate as a fruitful process of managing the violent trainingofpoliceofficersregarding nature of a juvenile offender by conducting in- requirements pertaining to justice of children. depth analysis in seeking for the root causes Also,withregardtotheprobationand that transformed a child to an offender as well correctionalcentreswhererehabilitation as by focusing on their special needs and processes are conducted; children as juvenile measures that are to be taken according to the offenders who are within the justice system nature and the offence of each juvenile where

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law it is evidenced that criminal acts of most of the • Establishingtherighttolegal juvenile offenders are symptoms of grave representation ensuring that the best emotional and physical abuse. For the sake of interests of children are protected in the protection of juvenile justice and the matters regrading juveniles in the national security the relevant legal authorities justice system. as well as the society must do better in • Strengtheningthelegalframework addressingthecriticalissuesthatafflict children. pertaining to the protection of children VI. RECOMMENDATIONS from all kinds of abuse with a special With the pressing need to scrutinize and reference to the protection of juvenile minimize the institutional challenges faced by offenders and filling the knowledge the country and for the issues in the existing gaps between police officers and Legal Frameworkpertainingtojuvenile probation officers with regarding to offenders in light of juvenile justice in Sri the laws on juvenile justice. Lanka following recommendations can be • For the partition issue of preventing provided; the juvenile offenders being mixed • For the shortfall in the definition of a with adult prisoners during remand, child the Sri Lankan legal framework laws should be implemented on the relating to children should clear the relevant authorities to look into this confusion and ambiguity in the term matter strictly without any mistake. ‘child’. As being a member state to the • It is clear that although juvenile justice Convention on the Rights of the Child isupheldinSriLanka,itlacks legislations (CRC) Sri Lanka is lawfully bound to and enactments relating to implement into its domestic legal juvenilejutice.Henceaspecial legislative framework the declarations of the enactment can be formulated Convention. Hence, a new definition whichstipulatesprovisionsfor the can be proposed to the term ‘child’ that protection,treatmentand is in align with the CRC definition of rehabilitationandreintegrationof child. juvenile offenders in the purview of • In the same manner, any person under juvenile justice. the age of 18 years should be uniformly In the perspective where rehabilitation and defined as a child and the Penal Code reintegration are considered as essential for should be amended to increase the the protectionofjuvenileoffendersand minimum age to 12 years as to hold a guaranteeingtheirrightstheexisting child criminally liable. rehabilitation system has been overshadowed • Scrutinizing juvenile court activities by certain issues as mentioned in the research. along with introducing a proposal to Therefore, in order to resolve such issues establishjuvenilecourtsona following recommendations can be provided; countrywide premise and revising the • Firstly, it is important to note the legal standards and regulations in absence of a Rehabilitation Act for the order to diminish the delays in the laws treatment and rehabilitation of juvenile can be recommended to resolve the offendersinSriLanka.Hence,the functional issues in the juvenile court rehabilitation processes for juvenile proceedings. offenders should be based on a special rehabilitationpolicythataimsto regulate

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training programs for the Statutes and Statutory Instruments rehabilitationbyidentifying their Penal Code of Sri Lanka specialneeds,tostandardize rehabilitation processes,toprescribe Children and Young Persons Ordinance Act minimum qualifications for the staff No.48 of 1939 dealingwithjuvenileoffenders,to Prisons Ordinance No.16 of 1877 establish and improve well-advanced Code of Criminal Procedure Act No. 15 of 1979 vocational training programs that help theprocessofrehabilitation,to introduce YouthfulOffenders(Training Schools) proposals for the institution Ordinance No.28 of 1939 ofmorerehabilitationcentres,to allocate Secondary Sources financial facilities to provide the juvenile with their special needs and Journal Articles necessities as well as to provide De Silva, N., 2010. Juvenile Justice System in Sri enough space in such centres, and to Lanka. Protecting Rights for Brighter Futures, provide after care programs that can [online]Availableat: be conducted after reintegrating a [Accessed 5 July 2020] • Moreover, a juvenile justice scheme Niriella, J., 2020. Rehabilitation and Re- should be well established through the Integration of Juvenile Offenders in Sri appointment of a Juvenile Justice Board Lanka. US-China Law Review, 8(2), p.499 and Special Juvenile Police Units to deal Department of Census & Statistics; Ministry of with juvenile offenders. National Policies and Economic Affairs, Child • Filling the knowledge gaps between Activity Survey 2016 police officers and probation officers National Child Protection Authority Report, with regarding to the laws on juvenile 2015 justice. UNICEF,n.d.JuvenileJusticeInformation • Finally, it is clear that as the most Portfolio. Sri Lanka: State Party Reports important suggestion with regard to administration of juvenile justice which includes the treatment and protection Chirlesan, G. and Chirlesan, D., 2013. Juvenile of juvenile offenders should be Delinquency and the Threat to national strengthened from a policy, Security: Possible Causes and institutional and a legislative remedies. International Conference “The Future viewpoint. of Education”, [online] ISBN 978-88-6292-386- 6(3).Availableat: BIBLIOGRAPHY [Accessed 11 July 2020] Mukesh Singh v State [2017] 6 (Supreme Court of India), 1 Websites and Blogs

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Paper Due, 2014. Importance of Rehabilitation ABBREVIATIONS for Juvenile Offenders. [online] 5(#35442849), CYPO- Children and Young Persons Ordinance p.7.Availableat: CRC- Convention on the Rights of the Child [Accessed 12 July 2020] BIOGRAPHY OF AUTHOR OPERATIONALISSUESININSTITUTIONAL

TREATMENTANDCOMMUNITY-BASED TREATMENTMETHODSFORJUVENILE OFFENDERS IN SRI LANKA. [Blog] 118TH

INTERNATIONALTRAININGCOURSE PARTICIPANTS’PAPERS,Availableat: [Accessed 13 July 2020]. Newspaper Articles Joseph, D., 2019. Criminal tendencies in Author is a final year undergraduate of the youthful offenders. Sunday Observer, [online] Faculty of Law, of General Sir John Kotelawala Availableat: Defence University. With her special interest in [Accessed 5 July 2020] conferences. The areas of interest are Human Rights Law, Women’s’ Rights, Child Rights and PressTrustof India.2017.Nirbhaya gangrape Humanitarian Law. case: The juvenile convict is a cook now, has a new name. India Today, [online] Available at: [Accessed 11 July 2020].

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Paper ID: 464 Need of Legal Recognition for Distance Working in PostCovid19 Sri Lanka: An Empirical Approach

DND Kannangara# and BANM Balachandra

General Sir John Kotelawala Defence University

#[email protected]

Abstract— The COVID-19 pandemic This lead to a lacuna within the legal system immensely affected the employer-employee paving way for the need of legal and relationships within the industrial sector regulatory framework to promote distant leading to drastic issues with regard to workingconceptwithregardto maintenance labour relations providing room for of labor relations. distance working concept. Though the The virtual pause of business activities Home Work Convention,1996functionsasan functioned as the basis and resulted in the international legislation which regulate identification of the decrease of the distant workers, it is pertinent that Sri expected future income. This leads the Lanka has not signed and ratified the empoyers towards harsh and arbitrary convention due to existing controversies decisions on employee management. such as the absence of a proper procedure However, this paper analyses the of claiming compensation, occupational significance of adhering to the fundamental safety and health for distant workers, principlesoflawprio to arbitrary decisions mechanism of evaluating the exact hours of and further the job work and issues with regard to salaries, securityoftheemployeesshoudbe social security ensured.Therefore, it is necessary to discuss andgratuity,jobsecurityandsocial problems how far is it justifiable to allow pay cuts and faced by women employees etc. Therefore, employmentterminationsbasedon the entire research focuses on the need of extraordinary circumstance such as Covid- an effective legal and regulatory framework 19 pandemic. The entire research paper which safeguards the rights of distant deals with the lacuna of Sri Lankan law on workers recommending to enact a separate distant working concept highlighting the legislation which ensures the rights of issues of direct incorporation of Home distant workers while strengthening its Work Convention emphasizingtheneedofa regulatory framework in advance. separate legislation which ensures the Keywords -Legalandregulatory rights of distant workers. framework,Distant-workingconcept, II. METHODOLOGY Home Work Convention The required data has been collected using I. INTRODUCTION primaryandsecondarysources.When This research paper focuses on the required refering to primary sources, the relevant improvementsofSriLankanlegal framework statutes were used throughout the research within Post-Covid19 Sri Lanka. It is obvious together with available case laws and the that the traditional system which managed secondary sources include the journal employer-employee relationships articles and reports in relation to labour subjectedtoarapidchangewithinthe standards. Furthermovingaheadfrom recentlyexperiencedpandemicsituation. blackletter approach the research also 232

13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law paved the way for gathering empirical data regularizing labour relations by resolving with the objective of addressing the issues disputes among tri-parties namely in a practicalbasisviainterviews.The Employers, Employees and the Government. interviews were held with the authorites of Thedistant-workingconceptwhich acquired International Labour Organization, Trade the attention of post covid-19 Sri Lankan Unions, Employers’Federations as well as society lead to the discussion of pros and leading Academics in the field of Labour cons of the applicability of Home Work Law and these interviewerswereselected Convention (HWC) 1996, (No.177) which purposefully in order to accomplish the was introduced by ILO and classified under objectiveof theresearchpaper via the category of conditions of employment innovativerecommendationswhich referring to specific categories of preserve the authenticity and credibility of employees. Ithasalsobeenidentifiedthatthis the research. convention has been signed and ratified by III. DISCUSSION ten countries around the world such as Albania,Argentina,Belgium,Bosnia, With the current wave of Covid-19 Bulgaria,Finland,Ireland,Netherlands, North Pandemic theconventionalmodelofworking Macedonia and Tajikistan. subjected to a drastic change leading to the needofspecificlegalandregulatory However, Sri Lanka hasn’t ratified this framework which regulates the employees convention yet due to existing controversies who are being subjected to the newly such as the absence of a proper procedure emerged distant-working concept. of claiming compensation, occupational safety and health for distant workers, When referring to the Sri Lankan context, it mechanism of evaluating the exact hours of isobviousthatthegovernmenthas work and issues with regard to salaries, introducedspecifichealth guidelines in social security and gratuity, job security as order to ensure the safety of employees well as matters with regard to issues of withintheofficeenvironmentvia the maternity benefits and social problems implementationofprecautionary faced by women employees and threats mechanisms which regulate the spreading against freedom of association which means of Corona virus. This situation has provided the absence of an exact procedure of joining room for the employers to formulate special trade unions are among the major concerns regulationsinordertoregulatethe employees which need to be addressed within legal resulting them to decide working hours as framework. Though the inspections are to well as number of employees which can be be carried out in actual workplaces, the accommodated. (Epidemiology Unit - process of inspecting the work done at Ministry of Health - Sri Lanka, 2020) residential levels require a special However, the absence of a proper legal and procedure of inspection in advance. regulatory framework within Sri Lanka has According to the preamble of the HWC worsened the issue leading to the arbitrary (1996) it’s evident that there exists many decisions of the employers irrespective of internationallaborconventionsand hazardous impact of it towards working Recommendations laying down standards sector. When referring to international legal of generalapplicationconcerningworking framework,itisobviousthatthe International conditionswhichareapplicablefor Labour Organization (ILO) which is a part of homeworkers such as Equal Remuneration United Nations forms the relevant rules and Convention 1951 (No.100), Discrimination regulations which are essential in case of

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law

(Employment and Occupation) Convention employmentsbasedonacontractof 1958 (No.111), Minimum Age Convention employment they should be either directed 1973 (No.138), Freedom of Association and to partly or occasional distance working ProtectionoftheRighttoOrganize conceptandaccordingtotheHWC Convention1948(No.87)andRightto (1996,art.1(b))specifiesthefactthat OrganizeandCollectiveBargaining personswithemployeestatusdonot become Convention1949(No.98)andthese homeworkers within the meaning of conventions are among the fundamental thisconventionsimplybyoccasionally conventions of ILO. performing their work as employees at home, rather than at their usual work During an interview conducted on 3rd July places. However, the pandemic situation 2020 the senior expert in legal and leads to the turning point within the regulatory reforms, Ms. Shyama Salgado industrial sector as well as the entire stated that the time has ripen up to initiate business world leading to the increased a socialdialogueontheemerging recognition of the second jurisprudencewithregardtodistant working categoryofemployeeswhoaretobe recruited concept together with the special focus as distant workers and this will also pave towards the process of digitalization and the way for the need of resolution of facilitation ensuring socio-political and numerous issues prevailed with regard to economiccommitmentsalongwith employeesincaseofremuneration, International labour standards prior to the discrimination, freedom of association as process of incorporation of the home-work well as recognition of their rights though it convention. She further prided over the fact mighttakeaconsiderableperiodfor adaption that any convention cannot be incorporated of this newly emerged concept of distance solely without a comparative analysis on working within the community. existing jurisprudence. Though the aforesaid HWC (1996) functions As per the HWC (1996,art.1), if a person as a statute which provides for the legal engages in occupation in his or her home or protection of the rights of distant workers, in other premises of his or her choice, other the Article four of the convention leads to than the workplace of the employer for the confusion whether it actually remuneration which results in a product or safeguards the rights of distant workers in servicespecifiedbytheemployer irrespective case of practical application withinSri of who provides the equipment, materials Lankancontext. According to the second or other inputs used, unless this person has limb of Article four of the convention, the the degree of autonomy and of economic equality of treatment independence necessary to be considered isexpectedtobepromoted.Eventhe reference an independent worker under national towards The Constitution of the laws, regulations or court decisions such Democratic, Socialist, Republic of Sri Lanka personisconsideredtobea homeworker. (1978,art.12)guaranteestheRightto When referring to the Sri Lankan context, Equality. However, though Sri Lankan legal there exists employees who already in frameworkspecifiestheprocessof employmentbasedonacontractof safeguarding the rights of employees within employment as well as the employees to be the workplace, there isn’t any specific recruited in order to utilize the distance legislation which guarantees the rights of working concept. Since the first category of distant workers employeesengageinparticular

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During an interview conductedon7th Associates Pty Ltd. Carroll’s workplace was September 2020 with the Assistant Director inside the family home and her employment General of Employer’s Fedaration of Ceylon, was deemed by the NSW Court of Appeal to Mr.Chamil Perera stated that they being the be a substantial contributing factor to her employers have already formulated a being killed. Carroll had two dependent special policy named “ Remote Work Policy” children, a teenage son and a newborn within the existing legal framework on baby, who made claims for death benefits labour relations with the objective of under the Workers Compensation Act 1987 managing the (NSW). The Workers employeeswhoworkfromhome.This clearly CompensationCommissiondetermined denotes how Remote work policy has Carroll died as a result of an injury arising already recognized residential premises as in the course of her employment and the actual work place of the distant worker. payments were ordered for her children. He further stated that the policy specifies (Hilsop 2020) two categories of distant workers namely, This landmark case clearly denotes the the employees who work under distance significance of a legal framework regarding working concept as per the request of the distant workers and currently Sri Lanka management and the employees who work needs such strong legal and regulatory based on their personal requests. However, framework for the process of safeguarding the policy framework highlights the fact the rights of distant workers in advance. that the final discretion is upon the Though the existing room for injuries and company to decide the employees who will illnesses within work environment is be subjected to distance working and how unavoidable the employers as well as the long he or she would render his or her government is responsible for occupational service as per the safety and within the scope of distant agreementbasedontheirmutual working concept the procedure of claiming understandingandconsent.Healso compensation, occupational safety and emphasized the fact that in case of any healthofdistantworkersshouldbe reassured. dispute which arise with regard to distant workers, the Workmen’s compensation Act During an interview conducted on 3rd July can be applied. However, he also pointed 2020, based on the existing procedure of out that the absence of twenty four hours claiming compensation, occupational safety coverage for the employees might and health of distant workers in Sri Lanka, negatively impact on the safety of the Senior Lecturer, Ms. Shyamali Ranaraja employees during working hours since it’s who contrasted the difference of procedure hard to identify the exact working hours of claiming compensation on actual work within the distance working concept. place and home being a distant worker emphasized the fact of absence of a proper When referring to foreign jurisdictions, the procedureofdeterminingwhetherthe manner in which occupational safety and particular employee subjected to injury or health is assured it’s obvious that in a illness while he or she is working or not. recent case, Michel Carroll was killed by her She further highlighted the fact that Sri de facto partner, Steven Hill, while working Lankan legal system requires improvement from their family home in New South Wales and ensure the rights of distant workers. (NSW) on June 16, 2010. Carroll and her partner were employed as financial advisers by family company S L Hill &

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Whenconsideringthemechanismof termination of the services of a workman in evaluating the exact hours of work under any industry shall, on termination of the the distant-workingconcept,it’shardto services at any time after the coming into calculate the exact hours of work. However, operation of this Act, of a workman who has according to Section 3 of the Shop and Office a period of service of not less than five employees Act No.15 of 1954, the normal completed years under that employer, pay period during which any person may be to that workman in respect of such services employed in or about the business of any and the issue arises in case of deciding the shop or office, on any one day shall not guaranteed years of employment of distant exceed eight hours and in any one week workers. Though the employees who work shall not exceed forty-five hours. Further, under contract of employment have been any interval allowed for rest or for a meal included in the convention, the distant are excluded from the decided hours of workers who render their service in a part work. Within the distant working concept, time basis have been excluded. These pros since the employee is expected to work and cons of the HWC (1996) lead to the from home there exists the difficulty in need of formulating a separate statutory obtaining the proper calculations of the enactment with the objective enhancing the exact hours of work due to the invisibility of rights and social security of the distant distant works which hiders the inspection working community of Sri Lanka. process due to impracticality. Either the Furthermore, it is necessary to ensure the HWC (1996) nor the Labour department is equalityoftreatmentinrelatio to silent on this remunerationofthedistantworkers without matterandthereexiststheneedof any discrimination. As per Section 3 (1) of incorporationofaproperlegaland regulatory National Minimum Wage of Workers Act No. mechanism of evaluating the exact hours of 3 of 2016 the national minimum monthly distant workers. wage for all workers in any industry or The spectrum of social security of service shall be ten thousand rupees and employees requires the focus towards the the national minimumdailywageofa procedures established regarding Employee workershallbefourhundredrupees. Further Provident Fund, Employees Trust Fund and the remuneration increases via the Gratuity. TheconsiderationsonEmployment additionofbudgetaryreliefallowance. Provident Fund highlight that both Accordingly, the National Minimum Wage is employer and employees contribute the thirteen thousand and five hundred rupees. fund. The Employee Trust Fund is entirely Comparatively, within the distant working based on employer’s contribution and it concept employers tend to reduce wages of seems that there exists no issue in case of distant employees based on the ground that functioning of these once even under they are not serving within their actual distant working concept. However, when it workplaces and this can be considered as a comes to gratuity the procedure of distant treat for the process of ensuring equal workers being entitled for gratuity benefits treatment. is quite problematic. According to Section The recent pandemic situation also resulted 5(1) of the Gratuity Act No.12 of 1983 its in a huge threat on the job security of evident that Every employer who employs thousands of employees. According to the or has employed fifteen or more workmen DistrictLabourofficeGampaha,the pandemic on any day during the period of twelve resulted in many issues being a treat for job months immediately preceding the security of the employees. The officials also

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law mentioned the fact of arbitrary decisions of benefits. When considering women who are the employers such as reducing being employed, it’s obvious that they have numberofemployeesandreducing to serve both at office and home and the remuneration lead to these issues. distant-working concept provide a sought However, the interviews with the of relief for them to manage their day-today employers clearly denoted how the responsibilities. However, the issue arises employers are in trouble in with regard to the process of determining caseofpayingremunerationand maintenance the exact hours of work of a mother or a of the factories. Further the pandemic pregnant lady under maternity leave and situation resulted in a great lost. According the absence of such a mechanism is among to the research carried out, it is obvious that the lacunasofthelegalandregulatory the employers have made use of framework for distant workers.Though twospecificprocedurestoreducethe number Section3(1)of the Maternity Benefits of employees. They either directly Ordinance No.32 of 1939 specifies the period terminated the employees or took steps to in which any woman is entitled to the terminateemployeesviaVoluntary payment of maternity benefit, there is not RetirementScheme(VRS).When considering any provision to safeguard the entitlement the issue emerged at Escual Lanka PVT LTD of distant women employees for maternity it has been found three benefit. hundredandfiftyemployeeswere terminated During an interview conducted on 2nd July out of nine hundred and fifty employees and 2020 based on the rights of distant women the employers have used VRS procedure to workers, the Sri Lankan programing officer terminate these employees. In Helaclothin of International Labour Organization, Ms. PVT LTD it has been found that the Pramodini Weerasekara stated that the employers have taken steps to terminate distant working concept would function as the employees who are above the age of a kind of blessing for most of the women fifty-fiveyearsandtheemployeeswhose employees who render their duties both in employment is less than six months. In the work place and their homes. She further situation arose in “Sumithra Hasalaka” it mentioned that the flexible working hours has been found that the employees are embedded within this distant working being forced to resign by themselves. All concept would indirectly facilitate these most all these issues have arisen as a result women employees for the process of of the pandemic and it is pertinent to fulfilling their duties. However, she also mention the fact that these employees even highlighted on the necessity of a strong deprive the option of moving towards legal framework which safeguard their distant working concept due to lack rights specially in case of the matters facilities and required regarding maternity benefits without knowledge.Therefore,thepandemic leading to arbitrary decisions of the functioned as a huge threat for thousands of employers. employees depriving their job security and there isn’t any doubt regarding the need of Apart from the issues regarding the treats effective rules and regulations which ensure towards their job security and maternity the job security of employees either they benefits the sudden shift towards the work at office or home. distant working concept also led women employees to numerous social problems. The distant workers also face numerous During an interview conducted on 8th of issues in case of claiming maternity July 2020 the Joint Secretary,

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Zones and General Services Employees’ distant workers and employees who work Union, Mr. Anton Marcus stated that the under a contract of employment. However, rural women who were employed at cities the issues arise with regard to the right of lost their jobs due the pandemic situation distant workers to join existing trade and they no longer able to continue their unions leading to the doubt about the service via distant working concept. practicality of equal treatment for distant Moreover, though they go back to their workers and this leads to the necessity of a villages it’s hard for them to get accustomed specific legal protection for distant workers. with their previous lifestyles and ultimately Therefore, it is necessary to address the have to bear the brunt of numerous social aforesaid issues of the legal system and it is issues. This opinion clearly denotes the evident that here exists the difficulty of discrepancies which need to be addressed direct incorporation of the HWC(1996) due within the legal system when incorporating to the above discussed issues within the distant working concept. This further leads convention and the dualistic approach to the realization of the need of an effective maintainedbytheSriLankanLegal legal framework which safeguards the framework right after the judgement issued rights of each employee through special in Nallaratnam Singharasa v. Attorney considerations on their socio-economic General (2013) 1 SRI L. R. where the court backgrounds. held that the international conventions do The distant workers’ right to join trade not become a part of the domestic law until unions is among the core issues within the thespecificlegislationsareenacted. scope of rights of distant workers. When Therefore, instead of signing and ratifying referring to International standards it’s the Home work convention it is better to obvious that, as per the Freedom of enactaspecificlegislationinorderto Association and Protection of the Right to safeguard the rights of distant workers Organize Convention (1948, art.2) Workers addressing all of the above discussed issues and employers, without distinction and within the pandemic such a legislation whatsoever, shall have the right to establish consists an extreme timely significance in and, subject only to the rules of the advance. organizationconcerned,tojoin organizations IV. RECOMMENDATIONS of their own choosing without previous authorization. Further, Right to As per the aforementioned analysis, its OrganizeandCollectiveBargaining obviousthatthetimehasripenupto introduce Convention (1949, art.1(1)) highlights that a separate legislation for the regulation of workers shall enjoy adequate protection distant workers while ensuring against acts of anti-union discrimination in therelationshipamongtri-parties. Therefore, respect of their employment and Article it is important to focus on the conflicting 2(1) of it provides that the Workers' and issues within the concept of distance employers'organizationsshallenjoy working in comparison with the approaches adequate protection against any acts of of foreign jurisdictions such as interference by each other or each other's HomeWorkConvention(HWC)1996, agents or members in their establishment, (No.177)inordertodraftaneffective statutory functioning or administration. Moreover, enactment which safeguard the rights of though the homework too ensures that the distant workers while paying a special equal treatment should be provided to both attention towards both kinds of employees, categories of employees, which means both either the employees under a contract of

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13th International Research Conference General Sir John Kotelawala Defence University Sessions in Law service or the newly recruited distant Epidemiology Unit - Ministry of Health - Sri workers. Furthermore,itis necessary to Lanka,2020,Guidanceforworkplace strengthen the regulatory framework of the preparednessforCOVID-19 distant workers via the legal recognition of http://www.epid.gov.lk/web/images/pdf/ the policies such as Remote Work policy Circulars/Corona_virus... which has been Hilsop, M 2020, ‘Landmark ruling deems introducedthroughtheEmployers’ employer liable for an employee killed by Fedaration of Ceylon and this might lead to her partner while working from home’, an on-going social dialog which would SmartCompany,5June, result in the formation of a strong legal and https://www.smartcompany.com.au/busin regulatory framework for distant workers ess- advice/legal/court-rules-employer- in advance. liable-for-employee-killed-working-from- V.CONCLUSION home/ The research proved that there exists a Nallaratnam Singharasa v. Attorney General need of a legal and regulatory framework (2013) 1 SRI L. R. which ensurestherightsofdistan workers. Conventions However, it is obvious that numerous issues hinder the direct incorporation of HWC HomeWorkConvention(HWC)1996, (1996) to the Sri Lankan legal system. (No.177), opened for signature 20 June Further, it was revealed that minimal 1996, entered into force 22 April 2000. attention has been given by the government Freedom of Association and Protection of the towards the newly emerged distant Right to Organize Convention 1948 (No.87), working concept and the drastic change opened for signature 09 July 1948, entered caused through the use of this concept will into force 04 July 1950. indirectly contribute the National Growth of Right to Organize and Collective Bargaining the country in the long run. Convention 1949 (No.98), opened for Acknowledgment signature 01 July 1949, entered into force We would like to express our appreciation 18 July 1951. to Ms. Pramodini Weerasekara, Ms. Legislations Shyamali Ranaraja, Ms. Shyama Salgado, Mr. Shop and Office Employees Act No. 15 of Anton Marcus,Mr.MahindaBalachandra, 1954 (SriLanka), Mr.Chamil Perera for their valuable and http://www.labourdept.gov.lk/index.php?o constructivesuggestionsduringthe planning ption=com_content&view=article&id=65&It and development of the research work. emid=86&lang=si Special thanks goes to the District LabourDepartment,Gampahaforthe Gratuity Act No.12 of 1983 (Sri Lanka), immense support provided in case of http://www.labourdept.gov.lk/index.php?o gathering required information. Further, ption=com_content&view=article&id=65&It their willingness to give their time so emid=86&lang=si generouslyhavebeenverymuch National Minimum Wage of Workers Act No. appreciated.Finally, we would like to thank 3of2016(Sri Lanka), our lecturers and parents for their support http://www.labourdept.gov.lk/index.php?o and encouragement throughout our study. ption=com_content&view=article&id=65&It REFERENCES emid=86&lang=si

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Maternity Benefits Ordinance No.32 of 1939 (SriLanka), http://www.labourdept.gov.lk/index.php?o ption=com_content&view=article&id=65&It emid=86&lang=si The Constitution of the Democratic, Socialist, RepublicofSriLanka,1978, https://www.parliament.lk AUTHOR BIOGRAPHIES The author is a final year undergraduate at faculty of law of General Sir John Kotelawala Defence University and a third year undergraduate of Department of English and Linguistics of University of Sri Jayawardenepura. She holds membership in many local and international associations. This is her very first experience inresearch publication. Her special and interested areas are Labour Law, Criminal Law, Human Rights Law and International Humanitarian Law.

The author is a third year undergraduate at faculty of law of General Sir John Kotelawala Defence University. This is her very first experienceinresearchpublication.Her special and interested research areas are LabourLaw International Humanitarian Law, Human Rights Law and Law of Delict.

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