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Wednesday, 10 August 2011

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Book Review:

Significant law journal

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.

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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