THE JUDICIAL SERVICE ASSOCIATION OF SRI LANKA JSA LAW JOURNAL 2016 | VOLUME - IV ISSN 2357-2884 PUBLISHED BY JUDICIAL SERVICE ASSOCIATION OF SRI LANKA i JSA LAW JOURNAL - VOL IV JSA LAW JOURNAL 2016 Volume iv Editorial Committee Asanga Bodaragama (Editor) Uddala Suwandurugoda (Assistant Editor) Rajindra Jayasuriya Jayaruwan Dissanayake Rakitha Abesinghe web: www.jsasl.org | mail: [email protected] ii THE JUDICIAL SERVICE ASSOCIATION OF SRI LANKA All rights Reserved. © JSA Law Journal 2016 volume IV 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, the Editorial Committee, Unless expressly stated the views expressed are the author’s own and not of any institution the represents. Printers: Sanghinda Printers & Publishers No. 06, Wijerama Road, Gangodawila, Nubegoda. e-mail: [email protected] Tel: 011-2802679 / 4542725 Cover desingner MoLa Senevirathne Page Layout Amila Sandamali Kannangara iii JSA LAW JOURNAL - VOL IV JSA LAW JOURNAL 2016 CONTENTS Page Non-Consummation of Marriage; Ground for Nullity 1-6 A.K.M. Patabendige Medico Legal Management of Torture Victims and Role of the Judicial 7-11 Medical Officer Dr. Ajith Tennakoon Rights of the Transgenders; Protection under the Existing Law 12-22 Buddhika C. Ragala The Dock; To Have or Not to Have ? 23-42 Chanima Wijebandara Sacred Duty Of The Judge In A Partition Suit 43-53 Chinthaka Srinath Gunasekara Law Relating To Protection Of Elephants 54-64 Geethani Wijesinghe To Be Hanged By Neck Till Death 65-86 Girish Kathpalia Covering The Cover; Copyright Law And Covering In Sri Lankan Music 87-98 Dr. Gowri Nanayakkara Best Interest Of The Child As A Rationale For Judicial Decision Making: 99-104 Some Views On The Supreme Court Appeal Case No 17/2013 Dr. Hemamal Jayawardene | Hasini Jayawardene Real Evidence: Myth And Realities 105-110 Jayaruwan Dissanayake Public Policy- The Unruly Horse 111-116 Lal R. Bandara Equality And Effective Access To Justice For Persons With Disabilities: 117-122 Overcoming The Barriers In Sri Lanka Lasanthi Daskon Attanayake International Arbitration Impact of Jurisdictional Challenge 123-132 M. Ganesharajah iv THE JUDICIAL SERVICE ASSOCIATION OF SRI LANKA Section 154 of The Evidence Ordinance; Hostile Witness With Special 133-140 Reference To English And Indian Law Mahie Wijeweera Lawful Interest Recoverable In Banking Transactions 141-147 Manjula Karunarathna Effective Protection Mechanisms For The Victims Of Child Abuse; 148-158 Need For Effective Legislative Framework To Meet With Contemporary Challenges Navaratne Marasinghe Economic Rights of Journalists Under The Intellectual Property Act; 159-166 -ANCL Vs. Chandraguptha Amarasinghe- Nuwan Tharaka Heenatigala Pragmatic Approach In Writing Crime Judgments In The Trial Courts 167-175 Justice P.H.K. Kulathilaka Statutory Protection For Victim Rights 176-190 Purnima Parana Gamage Law and Euthanasia ‘Mercy Killing Should Not Lead To ‘Killing Mercy’ 191-194 R.S.M. Mahendrajah The “Public Trust” Doctrine 195-207 Rajitha Perera Discretion Is A Double Edged Knife 208-214 Seevali Amitirigala Justice to Victims Who Are Suffering From Mental Retardation 215-225 Sehan Soyza The Office of President Of Labour Tribunal 226-239 A Profile Of Generic Functions In The Sri Lankan Legal Context- Sudantha Ranasinghe An Informed Approach To Combat Sexual Offences: 240-249 A Criminological Analysis Dr. Thusitha B. Abeysekara | Samindika Alkaduwa Marking A Document In A Civil Trial 250-260 Trinity Rajapakshe v JSA LAW JOURNAL - VOL IV EDITORS’ NOTE Judicial Service Association deviated from its traditional publication “News Letter” by publishing the inaugural volume of JSA Law Journal in 2013. We, the editorial committee of the JSA 2016, take this opportunity with utmost pleasure and privilege to present the Fourth Edition of the JSA Law Journal. This Journal is a result of hard work and dedication of the Editorial Committee and those who contribute with articles and ideas to shape its identity. The enthusiasm among the members to pen down articles is truly evident by the number of articles by members included in this issue, which deals with variety of subjects from the rights of transgenders to hostile witnesses, and laws relating to the protection of elephants. Further, this volume includes several articles from eminent scholars and dedicated legal practioners on timely important legal issues such as rights of disabled, combating sexual offences and copy rights violation in music industry. Hence we hope this edition would be a beacon of knowledge for the academics, practioners and jurists. We are deeply indebted to the previous editors Mr. Ranga Dissanayake, Mr. Pamila Rathnayake and Mr. Anushka Senevirathna for paving the way for us by setting the standard for the journal. We also express our deepest gratitude to Hon. Ruwan Fernando, Director of Sri Lanka Judges’ Institute and High Court Judge of Colombo for the guidance. We are much obliged to Mr. Mahie Wijeweera, District Judge of Tangalle who generously devoted his time by providing us with his guidance and efforts in making this issue a success. We extend our sincere gratitude to Mr. Upul Shantha Sannasgala of Sanghinda Publishers who undertook and gave the fullest cooperation in the publication of the journal. Such gratitude should be extended to Ms. Eroshinee Handaragama, Ms. Amila Sandamali Kannangara and Mr. Lalith Senevirathne who performed a wonderful job by designing the journal, and the cover page. We take this opportunity to express our gratitude to all the authors who despite their busy schedules found time to engage in academic writing and contributed articles to enhance the quality of the journal. Further we must place our deep gratitude on record to Mr. Ranga Dissanayake, Secretary of JSA who supported, guided and encouraged us in this endeavor. Finally, we like to thank the membership of JSA and look forward to comments, criticism and analysis of this effort, for this tradition to be carried on in years to come. vi THE JUDICIAL SERVICE ASSOCIATION OF SRI LANKA JUSTICE NIMAL GAMINI AMARATUNGA MEMORIAL AWARD - 2016 Judicial Service Association has decided to select the best article in the ‘Judicial Service Association Law Journal’ and present an Award to the Writer, in recognition of valuable service its members render by submitting articles each year. Furthermore, JSA, filled with deep gratitude and appreciation of the enormous service rendered by one of the eternal legal legends of our time, late Justice Nimal Gamini Amaratunga, has decided to name the ‘Best Article Award’, in honor of his Lordship. His Lordship Justice Amaratunga does not need special introduction. Nonetheless, we consider it is our duty to write this brief tribute in his memory. His Lordship, hailed from Kurunegala, was called to the Bar as an Advocate in 1972, having obtained a Bachelor of Laws Degree in 1970 from University of Colombo. His Lordship joined the Attorney General’s Department in 1978 where he excelled as a Law Officer. His Lordship was a holder of two Master of Laws, one on the Law of Evidence from University of Colombo and the other on International Law and Shipping Law from the prestigious United Nations International Maritime Institute in Malta, where his lordship received an award for producing the most outstanding essay. To the surprise of many of his colleagues, in January 1994, his lordship accepted an appointment as a judge of the High Court, though his future in the Department appeared extremely colorful. His Lordship has served as a High Court Judge in many parts of the country before appointed as a judge of the Court of Appeal in January 2001 and subsequently elevated to the apex court of the country in January 2005. Many of us, as junior judges, are personally aware of His Lordship’s extensive knowledge, competence and dedication. It is no exaggeration to say that there was hardly anything an vii JSA LAW JOURNAL - VOL IV accused appellant was able to urge in the Appellate Courts against the judgments. Many a judgments delivered by Justice Amarathunga as a superior court judge bear ample testimony to his commitment, thoroughness and the extensive knowledge of the law. Justice Amaratunga was always conscious of the fact that the counsel before him was only discharging their professional duties and that they were entitled to a hearing, however weak their cases may be. Always courteous and patient His Lordship never refused a hearing and treated both juniors and seniors alike. In a controversial matter, where remand order granted by Chief Magistrate of Colombo was challenged in the Court of Appeal, the respondent made clear he does not wish Justice Amaratunga to be one of the judges in his case, for obvious reasons. Justice Nimal Gamini Amaratunga showing his impartiality, integrity and disinterestedness declared that, “if any litigant does not want Justice Gamini Amaratunga to hear and decide a case, it is not the desire of Justice Gamini Amaratunga to hear and decide against the wishes of the litigant.” He is clearly one of the greatest judges of our country who cannot be forgotten ever. His judgments continue to have an influence on the life of the common man in the country. We live in a time of change where people expect judges to help society to meet the challenges of change. I would like to conclude this brief tribute by reproducing following excerpts of Holy Sonnets: Death be not Proud, by John Donne; “Death, be not proud, though some have called thee Mighty and dreadful, for thou art not so One short sleep past, we wake eternally and death shall be no more; Death, thou shalt die” Finally, as Lord Buddha noted, only inescapable fact in human existence is impermanence. Death is described as one of the five aspects of impermanence, which none can escape until one attains enlightenment.