National Law Conference 2021 by BASL a huge success: Part I

By Hiruni Dabarera

The Bar Association of Sri Lanka organised its first hybrid National Law Conference on 12-13 February at the Galadari Hotel, Colombo. This year the conference focused on the theme ‘Futurism’ inspired by the Italian art students’ movement of the 1920s in an effort to envision the future of the legal profession and guide the law accordingly. Kicking off at a time the country is grappling with a pandemic, the conference addressed timely and dynamic topics with the participation of many legal and non-legal professionals. Excerpts from some of the sessions are as follows:

Quarantine Laws and Workplace Best practices vis-à-vis Health and Safety

Headed by Police Spokesman DIG Ajith Rohana (Attorney-at-Law), the Quarantine Laws and Workplace Best practices vis-à-vis Health and Safety session brought to light the legal framework surrounding quarantine laws that were subjected to much controversy during the lockdown period. He educated the audience on the relevant laws that govern the country when a pandemic hits. The main statutory instruments are the Constitution of 1978, the Contagious Diseases Ordinance No. 8 of 1866, Penal Code No. 3 of 1833, Quarantine and Prevention of Diseases (QPD) Ordinance No. 3 of 1897, The Prevention of Mosquito Breeding Act No. 11 of 2007 and the Police Ordinance No. 16 of 1865. 

Under the QPD Ordinance, people in Sri Lanka can be isolated and restrictions can be imposed on a number of people allowed in a dwelling and the persons who are landing in Sri Lanka. The DIG recalled how with the spread of Covid-19 among civilians in the first instance, the Director General of Health Services via gazette notification No. 2168/6, 25 March 2020, declared the whole of Sri Lanka was as a ‘diseased locality’. It initially existed for seven days, then it was extended and the entire country is still considered a ‘diseased locality’. 

Pertaining to authority on imposition of curfew, under the Quarantine Regulation Gazette of 1925, the power to impose curfew is conferred on the proper authority, which was the Director General of Health Services (DG of HS) in this instance. He can lawfully delegate this power to the Inspector General of Police under Section 37. While the manner in which government adopted measures during the pandemic is amenable to judicial review, quoting the opinion of the Attorney General, Rohana emphasised how the measures implemented were deemed necessary to prevent and control the spread of COVID-19. Thus, he stressed how the restriction of fundamental rights of the country’s citizens by imposing curfew were mandated on the grounds of interest to national security and public order. He also highlighted the effort taken by the regularities to tackle fake news and to impose punishment and sanctions on those who engaged in these under the existing laws. 

The DIG concluded by stating how the existing laws were not sufficient to deal with the challenging circumstances COVID-19 brought forth and it highlighted the need to update the existing laws, change the current infrastructure and attitudes and mind-set of people. 

Speaking on best practices to be adopted in the workplace pertaining to the health and safety of the workforce, Deepthi Lokuarachchi stated how with COVID-19 workplaces are facing an unprecedented worker safety crisis. Ensuring occupational health and safety are dependent on the enactment of legislation and regular inspection of the compliance of regulations within the workplace. Presently the main statute that governs this is the Factories Ordinance No. 45 of 1942. 

Highlighting some of its flaws, Lokuarachchi stressed how is does not have sufficient provisions to cover psychosocial factors such as work pressure, work-related stress, work-related fear for contamination of infections and trauma that can cause impairment to workers. He highlighted how these issues were brought to the forefront with the onset of COVID-19. Therefore, it is of urgent need to include these areas to the exiting statutory framework. 

He also spoke on workmen compensation and insurance related to issues which were subjected to much attention with many employees being laid off during the pandemic. Under the Workmen Compensation Ordinance No. 19 of 1934, if a worker died in a workplace accident, the compensation his family will receive is only Rs. 550 000. This is not sufficient if he had any children of his own. Further, the calculation of compensation should be amended to also include psychological losses. 

In relation to the impact of COVID-19, Lokuarachchi stated how this is covered under workmen compensation differs in accordance to the circumstances of the situation. Further, he highlighted how workplace practices that had to be adopted with the onset of the pandemic like working from home, flexible work hours, tele-working and shift-swapping, if mandated by law, would enable better protection to the workers. 

Arbitration Law Enforcement, Ease of Business and Company Law

Dr. Harsha Cabral, one of the leading arbitrators in Sri Lanka shared his thoughts on the present context pertaining to Alternative Dispute Resolution Forms in Sri Lanka. “The ADR forms are Mediation, Conciliation and Commercial Arbitration. There were many ideas that were in mind when the Arbitration Act was introduced, however they are not a reality today.” 

He continued to state how if compared with foreign arbitration a stark difference can be seen in Sri Lanka. Foreign arbitrators are more committed and more disciplined and have impressive control during the proceedings. “We must take the blame for this. If we look at the Arbitration Centres in Malaysia, Australia, Dubai, Singapore, Hong Kong and London we can learn more. The manpower needs to improve. They are not successful due to superior laws. Their discipline and the thinking have contributed to their success. In comparison to foreign arbitrations ours is a joke,” he expressed.

Currently, it takes six months or one year to complete an arbitration proceeding rendering the whole motive to resort to ADR being to make it simpler and speedier than litigation futile. According to Dr. Cabral a systematic change is not needed but in thinking there must be a shift. The confidence must be brought to the business community on ADR. However, he noted how a healthier approach is seen among younger lawyers and hence he is hopeful for a better future. 

Sharing his thoughts on the procedural aspects, Sujeewa Samaraweera who is the Chairman of the Sri Lanka National Arbitration Centre spoke next. “Looking at ADR from a businessman’s perspective, their need is to work speedily. They need security, confidentiality and protection when pursuing a form of ADR. We must cater to these requirements. Internationally Sri Lanka is ranked quite low in ease of business and we need rectify this in order to support the running of businesses within the country and to attract more investments. For this, one-stop-shops need to be established throughout the country and our culture and mind-set need to change. Our business should move away from regulation and move towards facilitation. If we look at countries like Australia and Malaysia it is evident how they have a friendlier and more encouraging approach towards both local and foreign enterprises. Sri Lankan customary laws cannot continue to be in existence, our laws must be updated and modernised and the new normal situation must be catered to in order to solve these problems,” he stated.

Many new business opportunities are opening up within the South Asian region. According to Samaraweera it is important to focus on labour laws and a better relationship could be built between employer and employee where they have a friendlier relationship that is conducive to carry out business better. When attracting new investments, the nation’s interest should be at play and not private interest. Further, arbitration should not only be limited to lawyers, but industrial experts with knowledge in business should also be encouraged more to sit as arbitrators since outside perspective in arbitration is crucial. 

It is also essential that arbitration stops being a mere pastime for practitioners and its potential in helping the private sector must be understood expressed the panellist. Breakdown of relationships in business is normal; ADR should facilitate a mean in which such breakdowns can be solved swiftly so that business can be carried out at the former rate. At the end of his speech he stated how from next month all arbitration proceedings would be conducted digitally. 

Rajitha Jayasuriya, Director, Corporate Affairs Group Legal MAS Holdings, brought her insight to the session from the perspective of an in-house counsel. “We prefer foreign arbitration seats like Singapore, New York or the UK since parties can have speedier resolutions through them,” she commented. Further, she added how when drafting commercial transactions the lack of empathy for business issues is evident and that it should be developed. When legal agreements are drafted they must be drafted in simple terms avoiding heavy legal jargon so that a layman can easily read it and understand. Equity, Fairness and Simplicity are the three main elements that must be included within a commercial transaction. 

Jayasuriya also stressed how more one-stop-shops must be created to attract more investment. Currently, investors should submit to many regulatory institutions and ministries, which discourages investments. The investment approval process must be made simpler and speedier creating a climate where contracts can be promoted in a manner that can be commercially facilitated. 

The Conference Chairman Hiran de Alwis who is an arbitrator himself also added his thoughts to the panel. According to him our existing laws are more than sufficient to drive the needed change, hence, what is required is a change in attitude and mind-set. Foreign scholars and practitioners have touted our Electronic Transaction Act as one of the best in the world. Therefore, what is required is effective enforcement of the existing laws. At present one of the pertinent issues is the time taken to conclude our arbitration proceedings and time taken to enforce the award. He stated how parties need not wait long, but how they can get a judgement and a decree by subjecting the arbitral award to the Commercial High Court. This shortcut exists within the laws at present. Therefore it is evident that the mechanism exists, but there are delays in enforcement. According to him better use must be made of the existing laws. 

Debating on De Alwis’s points, Nihal Fernando PC, another arbitrator argued how people will not change their mindset simply by being instructed to do so. According to him existing rules too must be changed to facilitate a change in attitude and mind-set. Rules in arbitration proceedings can be changed to ensure a timeline is agreed upon before initiation and rules followed international arbitration proceedings can be adopted within the Sri Lankan context too. 

Additional thoughts that were shared in the session by Himali Urugodawatte, Director (Legal) Industrial Relations, BOI, also brought light to several other issues Sri Lanka is facing at present. Currently, the country is ranked quite low in many categories that are essential to attract more investments and increase more business opportunities. In Ease of doing business rankings, Sri Lanka is ranked 99th, Procedure to obtain a construction permit; ranked 66th (very restrictive), Protection of taxes; 142nd, Trading across borders; 96th, Enforcing contracts; 164th. If we look at our regional countries like Singapore, Malaysia and Hong Kong they are way ahead of us. Therefore, all panellists agreed how we need to ensure we increase our rankings in these particular rankings. 

Accordingly, the session concluded with everyone agreeing on the immediate need for the digitalisation of registries and reforms to be implemented to ensure businesses can be registered faster. In countries like New Zealand a business can be registered within half a day and Sri Lanka needs to adopt these to the existing procedures. More automated systems need to be put in place and regulatory bodies should shift to online platforms in providing their services in order to cater to facilitate ease of doing business. 

Defamation in Cyber Space

This session focused on a developing area in Delict Law that is gaining much popularity due to the increased use of social media by countries worldwide. Experts debated on the possibilities on whether the existing laws can be effectively utilised to tackle this defamation in cyber space. 

Sharing his thoughts on the laws applicable to tackle Defamation in Sri Lanka Dr. Rohan Edirisinghe stated how the common law in the country is able to tackle this if effectively utilised by judges. The current law that governs Defamation in Sri Lanka is the Roman Dutch Law (RDL). It is the common law in the country. In the opinion of Dr. Edirisinghe the RDL is far superior to English law when dealing with new technology. “Often in practice we forget what Common Law is and it is judge-made law. This means that over a period of time judges look at principles and look at how it can be adapted in Sri Lanka. In practice RDL remains untapped in its potential, it is undervalued and underutilised,” he stated. 

Common law is led by the legal community in contrast to legislature, which is brought forth by politicians. Hence, in order to meet new requirements like defamation in cyber space, resorting to common law might be the better option according to him. He brought the attention to significant case law where RDL was utilised to tackle defamation in cyber space and even violation of privacy rights in foreign jurisdictions that practice RDL at present. In cases like the ‘Dutch Reformed Church v. Sooknunan’, ‘Heroldt v Wills’ defamatory material published on Facebook was considered to be wrongful conduct.  In the case of ‘Le Roux v Dey’ RDL was used by the court to deal with defamation. 

The Constitutional Court in its appeal upheld both charges of defamation and infringement of dignity by the application of existing RDL principles. Thus, Edirisinghe commented how similarly ‘Actio Injuriarum’ can be utilised within Sri Lanka too to handle defamation. He stated how right to privacy is a part of this action and therefore, how a bill of rights that guarantees the right to privacy is not essential for judges to determine on cases like this. If common law is utilised it is more than sufficient. He noted how the action of ‘Actio Injuriarum’ is quite broad in its scope and hence can encapsulate anything that affects human dignity within it. 

Looking at the Sri Lankan context however it was observed how the consequence of the famous ‘Priyani Soyza v Arsakularatne’ was to freeze the RDL making it impossible to carry it forward. Noting the judgement by Justice Dheeraratne Dr. Edirisinghe commented how he does not seem to appreciate distinction between common law and statute law and how judges can develop common law by extending its application, giving them the discretion to make law under certain conditions. This however was applied in the ‘Kodeswaran v AG” judgement by Lord Diplock. Mr. Edirisinghe observed how if offences like defamation in cyber space are to be effectively addressed, Lord Diplock’s approach to common law is more suitable. He concluded by stating that it is important for current judges to recognise the conceptual superiority and the greater adaptability of RDL.

Ashwini Natesan, a reputed legal researcher and scholar brought insight onto how legally a case for defamation in cyber space can be filed and how it can succeed. She framed her discussion on three questions namely ‘Where to sue?’, ‘Who to sue?’ and ‘Geo-Blocking’. Since cyber space is beyond the confines of jurisdiction, hence where the case be filed is always doubtful. It is difficult to have a particular location where the damage has occurred. In the case of ‘Berezovsky v Forbes’ a Russian man who got defamed by a US owned magazine went and filed his defamation charge in UK succeeded. The plaintiff was able to successfully prove that he had a reputation to maintain in UK, which was damaged. Hence, it is evident how in instances where defamation has happened online if the plaintiff is able to prove that he his reputation was damaged in the jurisdiction in which he files the case, it can succeed. 

Further, the question of how can something posted online without a physical copy be considered a publication was answered in ‘Dow Jones v. Gutnik’, which held how the instance the post is downloaded, it is considered a publication. Therefore, even if the Internet Server is in a different country, the defamation charge can be filed in the country it is downloaded provided there is substantial harm caused. However, Natesan also stated how this could pose a problem, since every time something is downloaded it is a new publication, which could result to a new cause of action each time. She stated how in US this is not the practice, while in UK and Australia they are considered a new publication each time. 

The next issue that comes up in relation to defamation is who to sue. Most times anonymous people post on social media making it difficult to identify who made the publication. In instances where it is difficult to identify, the intermediary, who is the platform of social media, must disclose the identity of the person. They have a duty to disclose since they facilitate the publication. The service provider cannot be held liable, and this is often called the ‘safe harbour proviso’. In the case of ‘Blunt v. Tilly’ the same was upheld. Thus, there is a big responsibility on intermediaries.

Adding his remarks at the end, BASL President Kalinga Indatissa PC shared how certain remarks and comments made by the legal professionals on social media have become a factor that tarnishes the respect and dignity the professions demands. He stated how issues like this need to be addressed and they will have to look at charging a certain penalty from professionals who engage in such conduct to tackle it. Answering questions from the participants on as to what qualifies as defamation and what does not, he stated how “any publication made about a natural or juridical person constitutes a defamation if it can be proven to be untrue and a substantial damage was caused due to it”.

To be continued tomorrow