JSA LAW JOURNAL 2013 Volume I Editorial Committee Ranga Dissanayake (Editor) J.Trotsky (Assistant Editor) Priyantha Liyanage web: www.jassl.org | mail: [email protected] i All rights Reserved. © JSA Law Journal 2013 volume I 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 Gihan Kalyana Page Layout Kishani Manohari Balachandra ii JSA LAW JOURNAL 2013 CONTENTS Page Editor’s Note V Articles Modern day contracting; e-commerce, m-cash & what-next? 1 Justice Saleem Marsoof, P.C., Judicial stress – Reality exposed 13 Justice P.H.K.Kulatilaka Commercilisation of Personality & Celebrity Rights 18 Ruwan Fernando The Insurance Ombudsman Scheme and Its Relevancy to 39 “Judicial Decision” Making Dr. Wickrema Weerasooria Sentencing in Criminal Justice in Sri Lanka: 47 Issues, Policy and Need to Reform M.A.D.S.J.S.Niriella Intellectual Property Law and Criminal Liability: 61 Some important aspects Dr. D.M. Karunaratna Use of DNA Technology for crime invesigation in Sri Lanka 75 Dr. Ruwan J. Illeperuma Child Protection Mechanism in Sri Lanka 84 Anoma Dissanayaka The Perspective of Section 81of the Partition 88 Law & It’s Applicability Prasantha De Silva They are no longer two, but one 97 Lanka Jayaratne iii Protection of Natural Environment during 105 International Armed Conflicts Pradeep Hettiarachchi Judicial Accountability 112 Aruna Aluthge Fiction and poetry in Judgments 124 Chanima Wijebandara E-Filing of documents with the District Court 138 Priyantha Liyanage Doctrine of Confirmation by Subsequently Discovered 144 Facts and The Concept of Torture J.Trotsky Medical Negligence in Sri Lanka in the light 156 of Prof. Priyani Soyza v Rienzie Arsecularatne Case Gayantha Hemachandra Hippocratic Oath and Medical Ethics… 167 But, Rules are bound to break… R.S.M. Mahendraraja Case law related to building encroachments in Sri Lanka 173 Chinthaka Srinath Gunasekara Human smuggling - the need for reform 181 W.K.D.S. Weeratunga Need for Certain Institutions Essential for Promoting 185 Constitutionalism In Sri Lanka M.Ganesharajah International standard of privacy implementation and issues 190 of human Rights, concerning privacy and security Dushantha Epitawala How vital is it for the Judicial decision making 200 process to reflect the best interest of the child under the light of Convention on the Rights of the child (CRC) A.N.J. De Alwis iv EDITOR’S NOTE The JSA is proud to deviate from its traditional publication, the ‘Newsletter’ that featured only a mix of judge authored articles. In this journal we present a diverse selection of stimulating articles from judicial officers as well as non judicial scholars. We believe that this journal would be a novel site for compelling exploration of law in all aspects and we hope that you will find the content extremely enlightening. This journal is a result of a team work and the initiative and hard work of each member of that team was so instrumental in shaping its quality. At this juncture we are deeply indebted to Hon. Ruwan Fernando Director, Judges Institute for graciously volunteering to serve Initiative and hard work as a resource person. It is due to his guidance and support that we were able to make this journal a success. I must thank all those who have sent volunteer submissions within a limited period of time amidst their busy work schedules. Mrs.Anoma Dissanayake Chairman, National Child Protection Authority deserves our sincere gratitude for her generosity for coming forward to help us financially to get this tiresome work done. Finally I wish to thank our readers, without whose comments, criticisms, attention and analysis our endeavors would not have been a success. While extending well wishes to the incoming editorial board, I earnestly hope that they too will strive to honour the initiatives that we have taken to enhance the knowledge base of judicial officers. v vi THE JUDICIAL SERVICE ASSOCIATION OF SRI LANKA MODERN DAY CONTRACTING; e-COmmeRCE, m-CASH & WHAT-neXT? Justice Saleem Marsoof, P.C. Judge of the Supreme Court of Sri Lanka At first man was illiterate; long thereafter, but before the invention of paper, he became literate. In recent times man has become e-literate. The electronic revolution has transformed the way man does business and has brought about a great transformation in the law.1 This transformation has given birth to what we call ‘e-commerce’, which includes ‘m-commerce’, which is an off-shoot of ‘e-commerce’ that was propelled by the advent of user friendly smart phones and solutions such as eZ Cash. These phenomena resulted from the combination of the Internet with computers, mobile phones and other modern devices which help people to interact and do business in a way that could not have even been imagined a century or two ago. Technology and the way people interact and do business transactions have changed so rapidly in recent times that no one can answer the question: what next? ‘e-commerce’ or “electronic commerce”, has been defined as “the buying and selling of goods and services on the Internet, especially the World Wide Web”2, which makes possible “the paperless exchange of business information using electronic data interchange (EDI), e-mail, electronic bulletin boards, fax transmissions, and electronic funds transfer.”3 While these definitions emanate from cyberspace, it has been suggested that “the rapid changes in the Internet and continuously evolving technologies have made it not only unrealistic but pointless to reach a permanent definition of e-commerce.”4 1. S. Marsoof, Legal Issues Relating to E-Commerce, The Chartered Accountant (50th Commemorative Issue of the Journal of the Institute of Chartered Accountants) Volume 44 page 38. 2. SearchCIO, at http://searchcio.techtarget.com/definition/e-commerce (last accessed 21.11.2012) 3. BusinessTown.com, at: http://www.businesstown.com/internet/ecomm-definition.asp (last accessed 21.11.2012) 4 U. G. Seebacher, and L. B. Juszczyk, Cybercommerce Reframing: The End of Business Purpose Engineering? (2002) 19 1 JSA LAW JOURNAL The advent of electronic and e-business contracts has generally left the global as well as national legal systems struggling to keep up and gasping for breath. In much the same way as those who do business through electronic and e-business contracts have progressively developed new business techniques, procedures and rules, the legal systems of most nations had to work overtime to develop new laws or adapt existing laws to fit new settings, but it is not always clear as to how these laws will apply. Contract law can and does provide most of, but not all, the solutions to meet the challenges posed by electronic commerce. One of the major problems faced by ‘e-commerce’ was that the ease at which transactions could be entered into through the electronic media was not extended to the recognition and enforcement of such transactions. In Sri Lanka, as well as elsewhere in the world, legislation had to be enacted to facilitate this process and to meet the challenges posed by this development in the manner of doing business. For instance, the Evidence (Special Provisions) Act of 1995,5 Information and Communication Technology Act of 2003,6 the Payment and Settlement Systems Act of 2005,7 the Electronic Transactions Act of 20068 the Payment Devices Frauds Act of 20069 and the Computer Crimes Act of 200710 were enacted as part of the process of transforming the law to meet the challenges posed by this change.11 Apart from becoming familiar with the provisions of the relevant laws, present day business men, lawyers, judges and policy makers must also be mindful of international conventions12 and model laws,13 which could be of value in grappling with some of the problems posed by these developments. The requirements of ‘writing’ and ‘signature’ The Electronic Transactions Act of 200614 was enacted with the objective of facilitating domestic and international e-commerce.15 The provisions of the Act have in particular focused on removing difficulties that could arise from the traditional legal requirements of ‘writing’ and ‘signature’ in the context of e-commerce. The main obstacle in regard to the proof and enforcement of an electronic transaction was the requirement that certain contracts must be made in writing or should be in writing and signed by the parties 5. No. 14 of 1995 6. No. 27 0f 2003 7. No. 28 of 2005 8. No. 19 of 2006 9. No. 30 of 2006 10. No 24 of 2007 11. See, S. Marsoof, Electronic Transactions in the Modern World: An Analysis of Recent Sri Lankan Legislation [2006] 4 Sri Lanka LCL Rev 108 12. Such as the UN Convention on Electronic Commerce (2006) at: http://www.Uncitral.org/pdf /english/ texts/elect- com/06-57452_Ebook.pdf 13. See, for example, the UNCITRAL Model Law on Electronic Commerce (1996) at:: http://www.Law.upenn. edu/ bll/ulc/ucita/ucita200.htm; UNCITRAL Model Law on Electronic Signatures (2001) at::http:// www.uncitral. org/ pdf/english/texts/electcom/ml-lecsige.pdf 14. Supra note 8 15. §2 of the Electronic Transactions Act, ibid., 2 THE JUDICIAL SERVICE ASSOCIATION OF SRI LANKA thereto. While under the laws in