Revenue authorities yet to resolve vital issues

Sarath Malalasekera

The LAWASIA Conference marks a momentous occasion for the Bar in Sri Lanka. It is a first for Sri Lanka as an international and local communication technology law conference.

It is also the first LAWASIA information and communication technology law conference in this country, said LAWASIA Organising Committee Chairman M. Javed Mansoor at the Lawasia Conference held at the Trans Asia Hotel recently.

Chief Justice Sarath N. Silva PC was the chief guest. Lawasia ICT Law Conference President Mah Weng Kwal was at the head table with the other members of the Ex-co.

Javed Mansoor emphasised that the very fact that issues relating to such advanced areas of the law as information technology are being debated in Sri Lanka is a singular honour for this country and a recognition of her potential to contribute to this exciting and growing body of law that is ever grappling to stay abreast of the ‘lightning’ speed with which technology is leaving us behind.

Mansoor said in recent times LAWASIA has rightly concerned itself with numerous contentious matters confronting the people in the Asia Pacific region.

Whenever the Rule of Law has been violated or even threatened, as we have seen in recent times in this region, LAWASIA has been in the forefront: urging saner counsel to prevail and for the restoration of the Rule of Law.

Without an iota of doubt, this body of professional lawyers is a source of strength to all nations in the Asia Pacific region.

There is much to be said about the sharing of experiences of the members, of members associations and even of states within the Asia Pacific region.

The gradual whittling down of trade barriers, the process of globalisation and the growing irresistible influence of technology are a perfect setting to explore the possibility of mutual co-operation and the adoption of a common approach where feasible within this region.

Information and communication technology offers the right setting for such a common approach; indeed, for the building of bridges of cooperation within LAWASIA.

There is more of grey, than black and white in this exciting area of the law. Legislators are left in despair; lawyers uncertain; judges in a quandary; industry in darkness and the layman in blissful ignorance.

And yet, opportunities abound for those who dare to pursue. What better setting than for the lawyers of LAWASIA to rise as one and pool their varied resources unfettered by boundaries, colour, language or the like?

Electronic commerce is one such area. Fittingly, it is an area that will be scrutinised during the technical sessions of this conference. It raises many concerns. To what extent are the laws of contract applicable to a meeting of minds electronically?

How is jurisdiction decided upon when disputes have to be resolved concerning trans-border commerce? How may financial instruments be made available in paperless form to potential investors in the region?

How does one deal with the streams of revenue? Can a website be described as a permanent establishment - the Organisation for Economic Co-operation and Development (OECD) has invested large resources in order to arrive at a consensus on this vexed question. Sri Lanka’s revenue authorities are yet to make their position known on this matter.

The concept of effective management and control for the purpose of taxation has come under heavy attack and has required fresh examination in the context of electronic transactions. Mutual understanding on such matters can only be mutually beneficial to the nations of the Asia Pacific.

How do the principles of tort or delict, apply to commercial contracts, say, for instance, in the case of contracts for the development of information systems. How do established principles of law in the assessment of damages sit in the information environment?

Technology has had its impact even in the employment relationship. Confidentiality concerns, intellectual property rights, security of information, privacy and the broadening arm of criminal jurisdiction to create offences in this information era are some of the areas in which cooperation can be mooted.

The high mobility of labour and the steady expansion of the global business process outsourcing and knowledge process outsourcing industries make it imperative to address employment related issues with greater purpose.

Privacy of information is another area. In Sri Lanka, it hasn’t yet received the attention that it rightly deserves.

The recently enacted Computer Crimes Act makes provision in the context of preventing conduct that would be assailed as criminal in nature.

The greater issues concerning privacy and data protection have not been dealt with by the law in Sri Lanka, as is the case in some other countries in this region.

The transplanting of the laws of another legal system into our own is not the way forward; far from it. What is urged is that we look at one another and see how best we could profit from each other’s and our collective experiences.

We have to be very sincere in looking at ways and means of assisting one another and of pooling our resources.

The possibility of co-operation will certainly be addressed in the policy paper. We need to build bridges of co-operation within LAWASIA. Legal issues concerning information and communication technology is a good starting point.

It does not respect boundaries. It is seamless. Its challenges are truly global in nature. Collectively, LAWASIA will surely conquer some of those challenges.

Javed Mansoor is the Chairman of the Lawasia ICT Conference 2008. He is an attorney-at-law practising mainly in the areas of commercial, finance, tax and employment law. he is an Associate Member of the Chartered Institute of Management Accountants (CIMA).