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Published by Judicial Service Association of Sri Lanka 2019 PUBLISHED BY JUDICIAL SERVICE ASSOCIATION OF SRI LANKA www. Jsasl.org i JSA LAW JOURNAL - VOL VII ii www. Jsasl.org JSA LAW JOURNAL VOLUME VII EDITORIAL COMMITTEE SURANGA MUNASINGHE (EDITOR) TRINITY RAJAPAKSHE (ASSISTANT EDITOR) RAVINDRA PREMARATHNE ISURU NETHTHIKUMARA NADEEKA PIYARATHNE LILAN WARUSAWITHANA HARIS PELPOLA JANAKA SAMARASINGHE RASIKA MALLAWAARACHCHI MAHESH WAKISHTA PRABATH JAYASURIYA web: www.jsasl.org | mail: [email protected] iii All rights reserved. © JSA Law Journal 2019 Volume VII Published by the Judicial Service Association of Sri Lanka ISSN 2357-2884 Disclaimer: Any views expressed in the JSA Law Journal are those of the individual author and are not to be attributed to the JSA Law Journal or the Editorial Committee. Unless expressly stated the views expressed are the author’s own and not of any institution he or she represents. Printers: Sanghinda, No. 06, Wijerama Road, Gangodawila, Nugegoda. e-mail: [email protected] Tel: 011-2802679 Cover Designer: MoLa Senevirathne Page Layout: Amila Sandamali Kannangara iv MESSAGE OF HIS LORDSHIP THE CHIEF JUSTICE v 2019 MESSAGE OF THE HONOURABLE DIRECTOR OF SRI LANKA JUDGES’ INSTITUTE It is with much pleasure I pen this message to the “JSA Law Journal-Volume VII”. This Journal is being published by the JSA since the year 2013 and has become an annual event. It seems this Journal is very significant in many ways. Firstly, it creates a safe platform to share the experiences of Judicial Officers with other legal professionals. Secondly, it is a great opportunity and encouragement for the members of the JSA to sharpen their capabilities. Thirdly, it adds an academic perspective to the Judicial work. All of these would undoubtedly subsidize to the advancement of the legal system of the country. This year Volume contains vast array of timely important articles, worthy to read by any legal professional. It is pleased to observe that the Journal is mostly encompassed with the writings of the Judicial Officers who severe in various parts of the country. Further it has been augmented by the contributory articles of the Apex Court Justices, High Court Judges, Members of the Bar and Academics. I congratulate all Judicial Officers who have contributed their writings to this Volume and hope more contributions in the future. Let me take this opportunity to appreciate JSA and the Editor of this Volume for their hard work and commitment to make this endeavor a success. I wish this opportunity would be available for the members of the JSA in future as well. Justice L.T.B. Dehideniya Judge of the Supreme Court Director Sri Lanka Judges’ Institute. www. Jsasl.org vii MESSAGE OF THE PRESIDENT OF THE JUDICIAL SERVICE ASSOCIATION OF SRI LANKA Dear Colleagues, It is with great pride I write this message to you, as the President of the Judicial Service Association 2019. Year 2019 is almost over and we are looking forward to welcome year 2020. The year 2019, in retrospect, was filled with so many achievements, and also some setbacks. As in the past, the JSA stood for preserving the independence and hallowed traditions of the judiciary. The JSA sent a letter to the JSC, requesting to impose minimum eligibility criteria in selecting Law Officers to High Court vacancies. As far as we know, the JSC, in its wisdom, has considered our request in favorable manner. We, in collaboration with the Judges’ Institute, organized a workshop with visiting Indian Academic. As the JSA, we tried our best to revive Weekend Seminars, and hopefully, we would see the results soon. We were able to organize a successful Annual Trip of JSA, which was a long felt need. We hope this event will continue in the coming years. I accept that we have not been able to achieve everything I wished for, however, I assure you me, together with Ex-Co, have done everything to the best of our ability. The JSA endeavored to have money allocated to build a National Judicial Academy for Sri Lanka. We have drafted a comprehensive proposal to this effect and forwarded it to relevant authorities. Though it is still not materialized yet, hopefully, necessary funds will be allocated by the Budget 2020 and work would start in the near future. The Ex-Co of the Association, always rendered me their fullest possible support at all times. Participation in Ex-Co meetings was admirable throughout the year. Last but not least, I commend you for the unwavering support and trust all of you have shown to me, during my tenure as President. I wish you a happy and prosperous new year 2020! Hasitha Ponnamperuma, District Judge, Matale . President, Judicial service Association ix CONTENTS Page Part - I Admissibility of Social Media Evidence in Court Proceedings: Evidentiary Principles and Limitations. 1-31 Justice Dr. Ruwan Fernando Subject To Proof 32-47 Wickum A. Kaluarachchi Law And Procedure Relating To Testamentary Actions 48- 80 K.M.S. Dissanayake Sustainable Fisheries Management in the Indian Ocean 81-96 Vikum De Abrew Challenges to Human Rights in the Face of Terrorism: Domestic and International Legal Responses with special reference to Sri Lanka 97- 119 Professor Wasantha Seneviratne Unallotted Shares: Never Ending Story? 120 - 128 Chinthaka Srinath Gunasekara Judicial Legislation, an Instrumentality of Judicial Imperialism via Judicial Activism but as an Antipathy of Judicial Oligarchy 129 - 145 Sudantha Ranasinghe Promoting Innovation and Creativity through Intellectual Property Law: A Sri Lankan Perspective 146 - 161 Dr. Nishantha Sampath Punchihewa xi Part - II Strategic Legal Approach against Agrochemical Catastrophe 165 - 186 Harshana de Alwis Sky Is Not The Limit - A Synopsis on Space Law 187 - 198 Dulani Weeratunga Judicial Independence and The Rule of Law: A Critical Analysis of Sri Lankan Constitutions 199 - 213 Anandhi Kanagaratnam Law relating to Custody of Children in Sri Lanka 214 - 222 Nuwan Tharaka Heenatigala Presidential Immunity under the Contemporary Sri Lankan Constitution: Is it a strong Presidential Pillar with Unfettered Constitutional Support or not? 223 - 255 Kushika Kumarasiri Sureties, Forfeiture of Bonds & Consequences Thereof 256 - 268 Chamila Rathnayake Law Governing Contracts By Electronic Mail 269 - 283 Keerthi Kumburuhena xii 2019 EDITOR’S NOTE It is an utmost pleasure and a privilege to present the Seventh Volume of the Law Journal of the Judicial Service Association of Sri Lanka. Since the first edition in 2013 the perseverance and commitment of JSA regarding the journal is manifested by this successive seventh volume. Hon. Justices of our Apex Courts, Hon. Judges of High Courts, members of the Judicial Service Association, legal luminaries and scholars who excelled in spears of law in Sri Lanka have shared their expertise through the articles published herein. It is my singular honor to express my sincere gratitude to His Lordship the Chief Justice, Honourable Jayantha Jayasuriya PC, for obliging us with a message of encouragement and inspiration to make this endeavour a success. I thank His Lordship Honourable L.T.B. Dehideniya, Judge of the Supreme Court and the Director of the Sri Lanka Judges' Institute and Mr. Anushka Senevirathne, the Academic Coordinator of the Sri Lanka Judges' Institute for their valuable guidance and support given to the Editorial Committee. The Editorial Committee of the JSA wins my unreserved appreciation for the remarkable work done. Assistant Editor Mr. Trinity Rajapakshe, Mr. Isuru Neththikumara, Mr. Lilan Warusawithana and Mr. Rasika Mallawarachchi who devoted their valuable time to get this publication see the light of the day deserve a big THANK YOU. Further I extend my sincere gratitude to Mr. Hasitha Ponnamperuma, President of the JSA and Mr. Prasanna Alwis, the Secretary to the JSA for their valuable guidance and efforts to make this journal a success. Mr Ranga Dissanayake, former president of the JSA, Mr. Jayaruwan Dissanayake former editor of the JSA and Mr. Chinthaka Gunasekara are greatly appreciated for leading the way and mentoring. I owe a special appreciation to Mr. Uddala Suwandurugoda, Mr. Pradeep Mahamuthugala, Ms. Anandhi Kanagaratnam and Mrs. Chamila Rathnayake for their roles in this achievement. I take this opportunity to express my sincere gratitude to all the authors who had found time to pen their valuable articles despite their very busy schedules. My sincere appreciation goes to Sanhinda Pulishers who undertook and gave fullest cooperation in the publication of the Journal and I must appreciate the cooperation of Ms. Amila Sandamali Kannangara and Mr. Lalith Senevirathne, who designed the journal and the cover page. Finally, I wish to thank all the members of the Judicial Service Association and I wish all the members a happy, prosperous and successful new year 2020. www. Jsasl.org xiii 2019 Part - I www. Jsasl.org xv JSA LAW JOURNAL - VOL VII xvi www. Jsasl.org 2019 ADMISSIBILITY OF SOCIAL MEDIA EVIDENCE IN COURT PROCEEDINGS: EVIDENTIARY PRINCIPLES AND LIMITATIONS. Justice Dr. Ruwan Fernando1 Judge of the Court of Appeal Abstract Social media posts, text messages, conversations, photographs, images and videos are increasingly used in court proceedings both in criminal and civil trials. The admissibility of such social media evidence is sometimes denied on several objections, including irrelevance, difficulty of authentication and hearsay rule. The failure to apply the legal principles and best practices may deny any proponent to rely on social media evidence to resolve disputes in our courts. It is only after a proponent can successfully meet this threshold requirement; the Courts will berequired to go into the issues of credibility and weight of the admitted evidence. The difficulties frequently arise in establishing the relevance and authorship of social media evidence as often more than one person uses social media accounts and social media accounts are accessed without permission. The Courts of many jurisdictions, in particular, the United States have emphasised the need to authenticate the identity of the author without merely relying on secondary evidence unless social media evidence is admitted or not in dispute and demanded additional circumstantial evidence to be presented to authenticate the identity of the author.
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