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Book Review:
Significant law journal
Yasantha Kodagoda
The 27th Volume of the Bar Association Law Journal was ceremoniously
released last Friday, at a function chaired by the President of the Bar
Association of Sri Lanka Shibly Aziz, PC. Senior Attorney Kandiah
Neelakandan who has for the last 17 years functioned as the Chief Editor
of the journal, presented the first copy to reputed and respected human
rights lawyer and academic R K W Goonasekera.
The 27th Volume has been specially dedicated to the memory of the
late Desmond Fernando PC, two times President of the Bar Association of
Sri Lanka and former President of the International Bar Association. The
journal has several special articles regarding the life and times of
Fernando who was both a gentleman and a good lawyer of the yester years.
It is indeed fitting that the journal has been dedicated to the memory
of Fernando, who passed away one year ago.
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Left to right: Shibly Azizi, PC
(President BASL), A A M Illiyas (Convenor, Editorial
Branch), Kandiah Neelakandan (Chief Editor, BALJ) |
The journal has several interesting photographs depicting Desmond
Fernando’s valuable services to the legal profession, and a historical
formal photograph of their Ladyships and Lordships Judges of the Supreme
Court of Sri Lanka, chaired by the first lady Chief Justice of Sri Lanka
Dr Shirani Bandaranayake. The photograph reflects that today, after the
lapse of several years, Sri Lanka is benefitted by having the full
complement of judges of the Supreme Court. This would undoubtedly enable
the Supreme Court to expedite the disposal of cases before the apex
court of Sri Lanka.
The Journal has seventeen interesting and well written articles,
commencing with an article by Judge of the Supreme Court Justice Saleem
Marsoof, PC on improving the efficacy of commercial dispute resolution
in Sri Lanka. This article contains the text of the inaugural Institute
of Advanced Legal Studies Oration delivered by Justice Marsoof in July
2010. The article contains several important and viable proposals to
enhance the efficacy of the system of commercial dispute resolution in
Sri Lanka. The journal also has a second contribution by Justice
Marsoof, on the demise of the ultra-vires doctrine under the new
companies law.
Judge of the Supreme Court Justice Suresh Chandra has written a very
clear narration of the law relating to ‘Drunken Driving’. Similarly,
Justice Priyasath Dep who was elevated to the Supreme Court very
recently from having honourably served the Attorney General’s Department
for a continuous period of over three decades, has contributed a well
research article on ‘accomplice evidence’. The article will be of
tremendous value to criminal practitioners. A clear pronouncement of
views on the independence of the judiciary and the legal profession has
been written by Judge of the Court of Appeal Justice Anil Gooneratne.
The independence of the judiciary and that of the legal profession
should at all times necessarily be the centre of focus of the Bar
Association of Sri Lanka. In that light, the principles contained in the
article of Justice Gooneratne will be of great importance to the leaders
of the Bar.
Retired Judge of the Supreme Court Honourable C V Wigneshwaran, in
his contribution to the journal has seriously examined the Thesawalami
Law. He has explained the scope of this important personal and
territorial law and has illustrated its importance to the current era
and has clearly showed that the Thesawalami Law is certainly not an
archaic or irrelevant piece of law. It will be most useful to
practitioners particularly of the Northern Province, who now have the
freedom to practise law and serve the community through the national
system of administration of justice.
Mahie Wijeweera, Additional Magistrate, Colombo has contributed a
well presented article on the law and practice relating to matrimonial
actions in Sri Lanka. This article reflects the current status of the
law and applicable legal principles relating to the adjudication of
matrimonial disputes. For young practitioners engaged in matrimonial
disputes resolution through litigation, this article will serve as a
useful guidance.
Attorney Hiran de Alwis, Colombo has written an article on using
Colombo as a regional and international hub for professional, legal
services. He has highlighted how the services for commercial arbitration
could be provided by Colombo for parties of other countries.
Indeed, at a time when the commercial community of Sri Lanka no
longer perceives commercial arbitration to be expeditious or
inexpensive, there should be a revolutionary change in the entire system
of arbitration in Sri Lanka and a wholesome and sincere attitudinal
change in professional service providers such as Arbitrators and
Attorneys, if we are to attract foreign arbitral parties to Sri Lanka.
One time Minister of State Banks, President’s Counsel and Member of
Parliament Hon. Wijedasa Rajapakse has presented an interesting article
highlighting the duties of customers towards banks. This article
reflects the flip side of the often focused area of the duties of Banks
towards their customers.
There are several other very useful and important articles in the
journal. Due to want of space, those well-written articles cannot be
reviewed here. They are, ‘Unfair labour practice and victimization’ by
Attorney S. Egalahewa, ‘Doctrine of Ultra Vires and Judicial Review of
Administrative actions’ by Attorney Chamila Talagala, ‘Interpretation of
Contracts : New frontiers’ by Attorney Damayanthie Silva, ‘Restructuring
companies in Sri Lanka’ by Attorney Kandiah Neelakandan, ‘Critique of
the universality of liberal constitutionalism’ by Attorney Nayantha
Wijesundera, ‘Foreign Direct Investment’ by Attorney Eraj Silva,
‘Applicability of Information Technology Law to avoid computer and
internet crimes’ by Attorney Mahesh Devinda Abeynayake, ‘Applicability
of concepts of Law of Contracts to E-commerce’ by Attorney Sunil
Abeyratne, ‘Civil Aviation Act of 2010 - Some legal aspects’ by Attorney
Dr. Ruwantissa Abeyratne, ‘Trading of software - some WTO perspectives’
by State Counsel Althaf Marsoof, and ‘Law of abortion in Sri Lanka :
Where do we stand?’ by Dr. Satish Goonesinghe.
During the previous and the current publication of the Bar
Association Law Journal, Sri Lanka went through a constitutional
amendment, namely the repealing of the 17th Amendment and the enactment
of the 18th Amendment to the Constitution. It would have been important
to have included in the journal an article explaining and commenting
upon this vital change in the supreme law of the country.
According to media reports, there is presently the possibility of the
Government of Sri Lanka entering into an important agreement with India
entitled the Comprehensive Economic Partnership Agreement (CEPA). It is
widely believed that, this agreement when enforced may have an impact on
the legal services sector of Sri Lanka. Therefore, it would have been
useful had the editors commissioned a study of the draft agreement, and
caused the ensuing article to be included in the journal on the CEPA.
The final part of the Bar Association Law Journal contains the Bar
Association Law Reports, which reports are now cited as the BLR.
Particularly at a time when the Sri Lanka Law Reports are not coming out
with current volumes, the Bar Association’s initiative in publishing
recent important judgments of the Supreme Court and the Court of Appeal
is highly commendable. This part of the law journal is complete with a
digest of the fifty one judgments that have been reported. All the
judgments have well prepared head notes. Virtually all the important
judgments which have contributed towards the development of the law have
been included in the journal.
However, conspicuous by its absence is the Supreme Court’s
determination on the 18th Amendment to the Constitution. It is suggested
that future volumes of this very important journal contains an index of
amendments to the legislation introduced during the period between two
successive publications of the law journal. It would be most useful if
the Bar Association ensures that the Bar Association Law Journal becomes
a truly annual publication, and that it is released during the first
three months of the year.
Kandiah Neelakandan and his team of Attorneys on the editorial board
have rendered a great service to the legal profession, by compiling the
law journal and publishing it. I humbly commend the journal for reading
by all judicial officers and Attorneys.
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