DiamondJubileeInternationalResearchConference
(DJIRC)2022
“DigitalTransformationandInnovativeApproachesinMitigatingChallenges:
AGlobalAgendaforLegalEducation,ResearchandReforms”
CONFERENCE
PROCEEDINGS
03-04
DECEMBER2022
FACULTYOFLAW |UNIVERSITYOFCOLOMBO|SRILANKA
All Rights Reserved
Faculty of Law, University of Colombo 2022
No part of this publication may be reproduced in any form or by any means or stored in a database
or retrieval system without prior written permission of the Faculty of Law, University of Colombo,
Sri Lanka.
ISBN 978-624-5873-48-7
DISCLAIMER
The views and opinions expressed in the following abstracts are the sole representations of their
authors, and, as such, the authors of the abstracts are solely responsible for the content thereof.
The publication of the abstracts in the Conference Proceedings, Diamond Jubilee International
Research Conference, 2022, shall constitute neither a representation nor an endorsement of the
views and opinions therein by the editors or the Faculty of Law, University of Colombo.
ACKNOWLEDGEMENT
The abstracts written by the staff of the Faculty of Law of the University of Colombo have been
published simultaneously at the University Symposium Proceedings 2022.
Diamond Jubilee International Research Conference, 2022
Conference Organizing Team
Prof. (Chair) Wasantha Seneviratne (Conference Chair)
Prof. Sampath Punchihewa (Dean, Law)
Mr. Isuru Liyanage (Conference Secretary)
Mr. Akalanka Thilakarathna (Conference Co-Secretary)
Mr. Dumindu Madhushan (Conference Co-Secretary)
Ms. Wathsala Samaranayake (Conference Co-Secretary)
Heads of Abstract Review Panels
Public and International law: Prof. (Chair) Wasantha Seneviratne
Private and Comparative Law- Dr. Udapadie Liyanage
Commercial Law – Mr. H. A. Menaka Harankaha
General – Prof. W.I. Nanayakkara
Interdisciplinary– Prof. A. Sarveswaran
Editorial Committee and Departmental Representatives
Dr. Dilini Pathirana (Head of the Committee)
Ms. Pramoda Vithanage
Ms. Yanitra Kumaraguru
Mr. Kusal Amarasighe
Ms. Binendri Perera
Mr. Shanil Wijesinha
Mr. Kavindu Hewa Geeganage
Mr. Nath Gunawardena
Ms. Thisari Shashindri
Members of the Abstract Review Panels
Emeritus Professor Sharya Scharenguivel
Prof. (Chair) Wasantha Seneviratne
Prof. (Chair) Naazima Kamardeen
Prof. W.I. Nanayakkara
Prof. A. Sarveswaran
Prof. (Dr) Kokila Konasinghe
Dr. Rose Wijeysekera
Dr. Udapadie Liyanage
Dr. Shamila Dawood
Dr. Thusitha Abeysekara
Dr. Darshana Sumanadasa
Dr. Dilini Pathirana
Dr. Sanath Wijesinghe
Mr. H. A. Menaka Harankaha
Ms. Hasini Rathnamalala
Ms. Niluka Gamalath
Ms. Nisanka Jayarathna
Ms. Lihini Madushika De Silva
Message from the Dean
Professor (Dr.) N.S. Punchihewa
Dean of the Faculty of Law
University of Colombo
It is with immense pride that I write this message, as the Dean of the Faculty of Law of the
University of Colombo, for the 2022 research symposium of the Faculty of Law, on this year of
special significance and sentiment to the Faculty as it celebrates the completion of 75 years of
academia. The Faculty of Law this year, therefore, hosts its ‘Diamond Jubilee International
Research Conference’ (DJIRC) 2022 in a hybrid mode, on the theme of “Digital Transformation
and Innovative Approaches in Mitigating Challenges: A Global Agenda for Legal Education,
Research and Reforms”. The research being presented at the conference by both members of the
Faculty and external applicants spans the areas of specialization offered by the three departments
of the Faculty – the Departments of Public and International Law, Private and Comparative Law
as well as Commercial Law- and beyond, encouraging also an interdisciplinary focus when suited.
I eagerly look forward to DJIRC 2022 and all the other events organised as part of the celebrations
of this 75 th year, as an opportunity to showcase the efforts of all staff of the Faculty of Law and
the culture of academic rigour of the University. It is my fervent hope that through our collective
efforts towards maintaining high standards of research and writing, the Faculty of Law will be able
to continue to serve the legal profession – not just by producing young lawyers with the requisite
knowledge and professional values, but by contributing at the cutting edge of research to the
discussion and resolution of pressing legal issues today.
Message from the Conference Chair
Professor (Chair)Wasantha Seneviratne
Conference Chair
Diamond Jubilee International Research Conference-2022
The year 2022 is destined to be a momentous year for the Faculty of Law as it celebrates its 75th
Anniversary this year. To mark this historic milestone, the Faculty has organized a series of events
scheduled to be held from September 2022 through September 2023. The ‘Diamond Jubilee
International Research Conference’ (DJIRC) 2022 is one of the flagship events of this year-long
celebration. The conference is dedicated to honouring the robust tradition of academic and research
excellence maintained by the Faculty of Law during its seventy-five years of proud history as a
premier law teaching institution in Sri Lanka.
This year is a remarkable year for all of us. It brought us new hope and optimism with the receding
of the pandemic and the emergence of the so-called ‘post-pandemic normal’. The outbreak of
Covid-19 forced unprecedented societal changes around the world in all fields of activity. Out of
all the pandemic-driven changes, perhaps the most significant one is the creation of a landscape
that encourages innovation and technological adoption. With a mindset to absorb the positive
outcomes associated with the pandemic and to build back better as we exit the pandemic, we have
chosen “Digital Transformation and Innovative Approaches for Mitigating Challenges: A Global
Agenda for Legal Education, Research and Reforms” as the theme of DJIRC 2022.
The conference is committed to promoting a futuristic outlook for legal education, legal research
and legal reforms in a digital-rich and technology-driven world. Out of the abstracts which we
received from academics, practitioners, researchers and postgraduate students, we have accepted
nearly 75 abstracts for presentation. The abstracts cover a wide range of topics associated with the
theme, including the impact of digitalization on pharmacology laws, regulation of artificial
intelligence, reshaping the competition law in the digital economy, reforming the cybercrime
legislative framework, legal education in a digitized world, innovations in medical law, the effects
of digital transformation on law and law teaching etc.
The conference will provide a forum for both local and international researchers to exchange their
cutting-edge research results. DJIRC-2022 is dedicated to showcasing high-quality legal
scholarship in keeping with Faculty’s long-standing commitment to excellence in legal research.
Furthermore, this conference will provide a fantastic opportunity for both virtual and in-person
attendees to network with a wide range of like-minded professionals in the legal field. I am
honoured to be the conference chair of DJIRC -2022 year. I sincerely hope that the conference will
be an intellectually exciting and academically fruitful exercise.
Message from the Conference Secretary
Mr. Isuru Liyanage
Conference Secretary,
Diamond Jubilee International Research Conference-2022
It is my pleasure to send this message to the conference proceedings book as the Secretary of the
Diamond Jubilee International Research Conference 2022 which is held in commemoration of the
75th anniversary of the Faculty of Law of the University of Colombo. After a two-year hiatus from
onsite events due to the Covid-19 pandemic, I as the secretary of the conference, feel truly
delighted to organize this event as a hybrid one, under the theme ‘Digital Transformation and
Innovative Approaches in Mitigating Challenges: A Global Agenda for Legal Education, Research
and Reforms’. This conference has attracted many renowned scholars across the globe including
both local and foreign scholars and legal luminaries who have contributed significantly to the field
of legal research. The conference received many abstracts relating to different fields of law and
abstracts were selected to be presented at the conference after much deliberation and scrutiny by a
panel of experts who meticulously went through the abstracts for their originality, innovativeness,
and insights in enlightening the audience with a wealth of information and an abundance of
knowledge. I would like to take this opportunity to both acknowledge and thank all of those who
both directly and indirectly supported in making this a success and helping to uphold standards.
This conference will establish the prestige and the unparalleled legal scholarship and quality,
maintained at the Faculty of Law of the University of Colombo, as the premier seat of legal
education in the country.
Sovereignty, Constitutional Change, and the Supreme Court
Nigel Hatch
‘Sovereignty’ has been a contentious feature in Sri Lanka’s (formerly Ceylon) constitutional
development. Under the Independence Constitution 1947, which introduced the Westminster
system, in the aftermath of the Privy Council decisions in Liyanage v the Queen and Bribery
Commissioner v Ranasinghe doubts were expressed about the sovereignty or legal competence of
parliament to amend the Constitution having regard to section 29 which provided protection for
the minorities. This led the framers of the 1st Republican Constitution 1972 in adopting an
autochthonous constitution to inter alia specifically vest sovereignty in the people which was
declared to be ‘inalienable’, dismantle the separation of powers, and make the National State
Assembly (NSA) the “supreme instrument of State power”. The judicial review of legislation was
also expressly prohibited. The 2nd Republican Constitution 1978 by contrast introduced many
novel features - a hybrid presidential model with a directly elected President vested with executive
powers and a Prime Minister appointed from Parliament. The doctrine of the separation of powers
was reintroduced - Article 3 which is entrenched, declared that sovereignty is in the people and is
‘inalienable’ and Article 4 which is not entrenched, set out the manner in which such sovereignty
shall be exercised. Provision was made for a referendum and the prohibition on the judicial review
of legislation was retained. The object of this paper whilst looking at key decisions under previous
constitutions, will focus on how the Supreme Court under the present 2nd Republican Constitution
1978 has interpreted the concept of “sovereignty” which is vested in the people having regard to
Articles 3 and 4. In particular, the decision of the Supreme Court on the abortive 19th Amendment
in 2002 which analysed the concept of sovereignty in the context of a constitutional amendment,
has to be critically analysed having regard to this decision forming the basis for subsequent
pronouncements by that court. This has particular resonance having regard to the clamour now for
a systemic change and a dismantling of the Executive Presidency.
Keywords: sovereignty, inalienable, separation of powers, executive president, supreme court,
constitutional interpretation
1
The Sovereignty of People v. Sovereign Power of People: An Appraisal of
Recent Constitutional Developments in Sri Lanka
H.A. Menaka Harankaha
One of the fundamental principles envisaged in the present constitution of Sri Lanka is its emphasis
on the sovereignty which is vested in the People. The integral aspect of the sovereignty of people
embodied in the constitution, which is also inalienable, has been reemphasised by referring to
Articles 3 and 4 of the constitution by the court in many salient cases of constitutional amendments
such as 13th, 17th, 18th, 19th, 20th and in the recent determination on the proposed 22nd Amendment
as well. Court has also determined that as the executive sovereignty of the People is exercised by
the President, any type of relinquishment or removal of power from the original powers vested
with the President as recognised by Article 4(b) shall have an effect on the sovereignty of the
People guaranteed by Article 3 of the Constitution hence requires the consent of people at a
Referendum. This interpretation, which is also emphasised by the determination of the Supreme
Court on the 22nd Amendment to the constitution, would undermine any legitimate attempt at
constitutional amendments that are aimed to align with principles of constitutionalism. This
research is a critique to evaluate definitions given by the court from time to time on the executive
power (sovereignty) of the People enjoyed by them through the President in light of possible
hindrances encountered by Parliament in reducing some excessive powers enjoyed by the
President. This is desk research mainly based on constitutional documents, articles, and case law.
This research finds that the constitution should not be interpreted to the effect that the People’s
executive sovereignty would be affected in cases of ‘delegation’ of executive powers to various
bodies that are already established or going to be established by the constitution, including the
Parliament. This delegation needs to be utilised to its maximum.
Keywords: sovereignty, executive power, constitutionalism
2
Decolonisation, Democratic Crisis, and Constitutional Designs: Changing
Conceptions of South Asian Constitutionalism
Adithya Anil Variath
Over the last two decades, South Asia is witnessing changes in the structures and sub-structures
of the representative constitutional democracy. It has also led the South Asian States to change,
amend and replace their existing constitutional structures. Comparative constitutional law
jurisprudence in the subaltern context in South Asia exposes how institutional safeguards like
constitutional courts, human rights commissions, and regional institutions have been compromised
due to instabilities like the military in constitutional politics, subservience of democratic
principles, and flawed constitutional designs. The unconventional jurisprudence evolving in this
region exposes how decolonial South Asia is developing its own subaltern constitutionalism. The
paper through critical case studies of crises in India, Pakistan, and Sri Lanka traces how ethnic
politics, religion, nationalism, authoritarianism, and decolonisation have all contributed to creating
a distinct constitutionalism in South Asia. The author delves into an analysis of the South Asian
constitutional experiment with its indelible geopolitical and internal crisis legacy. South Asian
subaltern constitutionalism is a break as well as a continuity, which is the result of the intersection
of mutually constitutive post-structuralism and post-colonialism. This paper argues that the
success of South Asian democracies will lie in tracing the stability of constitutional institutions,
empowering marginalised minorities, and promoting subaltern constitutional ethos. Despite strong
constitutional guarantees, South Asian states have witnessed the legitimisation of discrimination
and delegitimisation of rule of law. The paper also explores constitutionalism through subaltern
tools of comparative constitutional law in the South Asian region.
Keywords: South Asian constitutionalism, subaltern, post-colonialism, constitutional democracy,
crisis
3
Significance of the School in a Constitutional Democracy
Binendri Perera
What is the significance of school in a constitutional democracy? I explore this question using Sri
Lanka as my case study. Schools in Sri Lanka originated during the colonial period continuing
through nationalist struggles to the post-independence period. But there has been no assessment of
the changing role of schools through these transformations. The Constitution of Sri Lanka 1978
recognises eradicating illiteracy and universal, equal access to education as a directive principle of
state policy. In the post-independence period, Sri Lanka maintains a free education policy up to
the tertiary level and high literacy rates. However, the current structure of the school system
reinforces the ethnic and gender divisions and class and geography-based inequalities. The limited
availability of opportunities for higher education, quality vocational education, and employment
opportunities perpetuates the competitive focus. Therefore, the other values that school education
seeks to promote remain underappreciated. For the purposes of the paper, I focus on highlighting
the importance of the role that schools perform in a constitutional democracy. To achieve this aim,
I follow the analytical approaches that constitutional scholars Anika Gauja, Tarunabh Khaitan, and
Vicki Jackson have taken to theorise the political parties, fourth branch institutions, and knowledge
institutions respectively. Accordingly, I analyse the importance of schools based on the function
that the schools perform to promote the values of constitutional democracy and the institutional
positioning of the school. In terms of functions, the schools impart education, and in a
constitutional democracy, education teaches citizens about the duties and rights of citizenship and
respecting community and diversity. In terms of institutional positioning, the school is the first
institution that the citizens engage with outside their families and the State has an obligation in
regulating them towards promoting constitutional democracy.
Keywords: constitutional democracy, schools, citizenship, diversity, knowledge institutions
4
Free Trade Agreements and Environmental-related Trade Measures in South
Asia
E.N.R. De Silva and Rangika Bandara
Some Free Trade Agreements (FTAs) have moved into further developments by introducing new
areas such as labour, environment and human rights apart from reducing tariffs. This task is even
more challenging for South Asia (SA) as it has been struggling without a perfect economic
development solution, at least for the region. Though SA has less recognition to incorporate
environmental clauses into FTAs, it experiences more environmental impacts due to free trade as
SA does not have stringent domestic laws in protecting the environment. Against this backdrop,
this study aims to evaluate environment-related notifications, environmental measures, and
policies mentioned in South Asia’s trade policy reviews of the World Trade Organization
(WTO) member countries. There were 89 environmental-related notifications and measures
recorded in SA. The highest was recorded from India, and none from Bangladesh, Bhutan, and
Afghanistan. Environmental notifications have been increasing in SA, as in the world. Globally,
the most common measures by agreement for environmental-related notifications was the trade
policy framework, and the least commons were the conformity assessment and state trading. In
SA, 23% was from countervailing measures and 18% each from agriculture and technical trade
barriers. The majority of the keywords in SA were based on the environment (17%), as in North
America, followed by energy (16%), fish (15%) and conservation (8%). It was pollution in the
East, energy in South America, sustainability, and the environment in Australia, conservation-
related in Europe and sustainability in Africa. The most common type of measure in Asia was
trade policy (31%) in the world, followed by export prohibition quotas and licensing (15%), import
prohibition quotas and licensing (11%) and state trading (10%). In conclusion, the percentage of
total environmental notifications in South Asia is 3.0% compared to other world trade, and India
takes the lead.
Keywords:
5
Whose Building Law? Empirical Approach to International Law in ASEAN
and Thailand
Prem Singh Gill
Given a full-fledged adoption and implementation, it witnesses a global phenomenon of Anthea
Roberts’ method of study as well as its significant result, the common thread of this research aims
to analyse how international law and its systems are approached in different nations, providing its
legal localism in becoming internationalised? It further discusses how Roberts analyses different
factors that urge actors in the international community to challenge the universal bindingness of
modern-day international law. However, this paper provides a discussion of Thailand’s approach
to international law as well as some developments in international law issues concerning Thailand
and other ASEAN countries. The challenge to international law’s claim to universality and
neutrality instead of posing the classical question, “Is international law a law?”. Roberts
investigates the twilight zones of international law academically and set three arguments to
investigate the issues, (1) “difference” argues how international law is approached, taught, applied,
and promoted within states. This method of examining “a comparative international law”; (2)
“dominance” which argues how an approach and doctrine of certain states became
disproportionately influential in the construction of international law; and finally, (3) “disruption”
to analyse influential factors and actors that take a disruption of one or a certain group of nations’
dominance. Methodologically, this paper aims to adopt a non-doctrinal approach comparatively
with its norms and reflect the main arguments posed. Therefore, Anthea Roberts suggests that
international law should be studied through the lens of a comparative approach, with open-
mindedness and, at the same time, a proportional balance between transnational and national
perspectives; the tactics employed by different factions and reassess the historical reflection to the
international law in ascertaining a better approach, the representative global legitimacy of
international law in the 21st century, and one must overcome excessive West-centrism in
international law and global society.
Keywords: customary law, comparative international law, Thailand, ASEAN, west-centrism
6
The Neglected in the Global Agenda: An Analysis on the Effective
Participation of Indigenous Peoples
Isuru Liyanage and Thilini R. Galappaththige
Although the indigenous peoples have a unique lifestyle and distinct characteristics there is
uncertainty about their recognition and participation in global agendas. This has resulted in
neglecting them in decision-making processes which has serious effects on their right to
indigenous lands. This situation has got worse with the massive development projects penetrating
the indigenous territories disregarding their effective participation. Hence, the paper aims to
ascertain how the international regime, including United Nations (UN) and regional human rights
systems, has recognised the consent, consultation, and compensation towards the recognition of
effective participation of the indigenous peoples. Against this backdrop, the paper considers the
meaningful participation of the indigenous peoples as an essential tool to mitigate the gravity of
the identified problem. To this end, international instruments have developed certain modes of
effective participation, namely, obtaining free, prior, and informed consent and making space for
consultation. Similarly, the successful accommodation of effective participation creates a better
way to resolve the problem by granting appropriate compensation to vulnerable indigenous
peoples. The right to indigenous land of these peoples is necessarily violated when the obligations
to consult, obtain consent, and/or compensation are not followed. This research follows the desk
research methodology and thus, the primary focus will be on the UN and the Inter-American and
African human rights systems. This paper mainly focuses on two main UN initiatives namely, the
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and Special
Rapporteur on the rights of indigenous peoples. Accordingly, this paper argues that although the
UN system has recognised the above-noted modes of participation, the system has rarely
comprehended the means and methods to obtain participation effectively. This paper is of the view
that perceiving this issue solely from the UN human rights systems would not satisfactorily address
the case and thus, it is pivotal to perceive the problem holistically by integrating inter-American
and African human rights standards and precedents for a progressive resolution.
Keywords: indigenous peoples, UN and regional human rights mechanisms, effective participation
7
Determining the Delictual Liability of the Police: The Legal Challenge and
Way Forward
Thushanthiga K. Thanikumar
Sri Lanka has witnessed severe inefficiency in the police service and suffered irreparable losses so
far. Though the idea of imposing delictual liability on the police service to overcome the issue of
inefficiency has been received with much enthusiasm, the fear of its ‘chilling effect’ holds the legal
profession a step back from making it into a reality. It is to be accepted that determination of
delictual liability should be carried out with caution due to the reason that it may place unrealistic
burdens and responsibilities on the police service and may cause the officers to employ defensive
practices while discharging their duties. In this context, it becomes inevitable to decide the
boundary lines to impose delictual liability on the police. The author has proposed a legislative
amendment to the Police Ordinance No.16 of 1865 to incorporate clauses on common duty of care
in their previous study on police negligence and omissions. Relying on this, the present study
proceeds to explore how delictual liability for breach of common duty of care under the Police
Ordinance No.16 of 1865 could be determined. For this purpose, the study looks at the experience
of and lessons learnt from the jurisdictions of South Africa and England and proposes
‘reasonableness’ as the yardstick to determine the delictual liability of police in Sri Lanka.
Keywords: delictual liability, police, reasonableness, negligence, omission
8
Liability for Negligently Inflicted Psychiatric Injury in the Workplace: An
Analysis Under the Law of Negligence
V. K. Ahamed
Workplace psychosocial hazards increase the risk of prolonged workplace stress, which can lead
to physical and psychological injury. In recent years, claims for damages for deliberately or
negligently inflicted work-related psychiatric injury have succeeded against employers in many
jurisdictions. In order to claim damages for psychiatric injury, the law of negligence requires the
plaintiff to prove two elements: namely, proximity and reasonable foreseeability in a context
where an employer had actual knowledge of the risk of psychological injury to all employees as
a result of vicarious trauma. Sri Lanka has conventionally relied on employer liability to provide
for employee injury compensation, complementing it through the Workmen’s Compensation
Ordinance No. 19 of 1934 (WCO). According to Schedule I of the WCO, ‘permanent incurable
loss of mental capacity resulting in fatal incapacity to work or any other injury causing fatal
incapacity to work’ is the only compensable psychiatric injury. There is no arrangement for short-
term or curable psychiatric injuries. As such, this paper argues that the WCO has not effectively
dealt with all work-related psychiatric injuries. Hence, the law of negligence can be adequately
applied to fill this lacuna. In order to deal with this lacuna and to give suggestions, this paper
analyses legal literature from Australia, South Africa and Sri Lanka. The author employs doctrinal
analysis from primary and secondary legal sources in arriving at solutions to the above problem.
This paper will significantly contribute to the existing literature by discussing the challenges faced
by an employee when proving the conditions required by the law and its solutions to ensure that
an employee who suffers from psychiatric illness or injury in the workplace has redress under the
law of negligence.
Keywords: negligence, psychiatric injury, foreseeability, proximity, damages
9
An Appraisal of the Challenges faced by the Law of Defamation in Sri Lanka
in the Digital Era
Chamath Fernando
Websites, blogs, social media platforms and gossip channels have expanded all the limitations
experienced by traditional print and electronic media in the modern world. Any person can become
a journalist or a publisher and this has resulted in the wrong of defamation having to accrue new
dimensions. Despite the fact that presently, information communication technology has developed
to an unimaginable extent, the basic principles of law relating to defamation remain the same.
Based on the above paradox, this paper analyses whether the present legal system in Sri Lanka
concerning defamation could meet the new challenges in the digital era and explore the need for
reforms in the defamation law in Sri Lanka in order to meet the new challenges in the digital media
context. The methodology followed in this research involves a critical analysis of information
gathered through primary sources and secondary sources in order to identify the gap between the
present legal provisions concerning defamation in the wake of digital transformation in the field
of information communication. In this research, the examination of approaches taken by other
jurisdictions, especially, South Africa, Australia and the United Kingdom have been used for
comparative purposes. This paper will be confined to a dispute-based analytical approach which
highlights how disputes themselves can be investigated in the light of three main aspects of
disputes which can be identified as the origin, process and outcome. Uncertainty attached to the
requirement of publication in the context of social media, difficulty or almost impossibility of
identifying the responsible individuals to pursue a defamation case such as an anonymous blogger,
issues concerning personal opinions as opposed to statements of facts on social media, the
difficulty of taking remedial steps as social media is faster, more accessible and more widely
available compared to traditional media and issues relating to deciding the jurisdiction are few of
the challenges faced by a litigant in a defamation dispute in the modern digital era. In conclusion,
it is observed that traditional legal principles pertaining to defamation have inherent limitations in
the digital era and there is a need to introduce necessary reforms to the present legal structure
concerning defamation to safeguard the rights of the litigants and the public at large.
Keywords: social media, defamation, convergent media, litigation, judicial procedure
10
Developing a Civil Liability Regime for Artificial Intelligence (AI) in Sri
Lanka: A Critical Legal Study
Udapadie Liyanage
Use of artificial intelligence (AI) is apparent in every sector today. Simply, AI is a simulation of
human intelligence in a machine for automation. The potential of AI cannot be ignored at present,
in view of the advancement of technology for the comfort and betterment of humankind. Driverless
vehicles, information gathered from self-driven drones, robotic medicine and lawyering are a few
interesting areas which have been developed through AI However, certain matters pertaining to
the use of AI are still left to be uncovered. Accidental deaths, serious bodily injuries, damage to
property, economic losses and invasion of privacy have become important legal issues relating to
AI. The main concern is who should be liable to the victims of AI as those systems are self-piloted.
The law governing AI in Sri Lanka is not established as the industry is still at a nascent stage in
this country. Apart from products liability law, which is based on fault, no specific law on AI
operates in Sri Lanka. Therefore, it is questionable whether the emerging issues relating to AI can
be addressed under the existing law. This paper aims to examine present products liability law and
its potential in handling cases relating to AI in Sri Lanka and/or whether any policy intervention
is warranted. This is a qualitative study which uses primary and secondary sources for its
comparative analysis. It explores European Union Directives which evaluate the recovery of
damages relating to torts of AI from a products liability perspective in a two-tiered way, on a high
risk and low risk basis. It analyses whether the same approach is adequate and usable to improve
the present Sri Lankan regime by recommending policy intervention for high-risk operations on
the basis of strict liability.
Keywords: civil liability, AI, products’ liability, damages
11
The Normative Value of the Doha Declaration Beyond Patents: Lessons from
Landmark WTO Rulings on Australia—Tobacco Plain Packaging Measures
Sanath Sameera Wijesinghe
The main objective of this research is to appraise the contribution of the World Trade
Organization’s (WTO) landmark rulings in Australia—Tobacco Plain Packaging measures to
create a harmonious relationship among intellectual property (IP), public health, and international
trade through a thoughtful application of the Doha Declaration on TRIPS and Public Health (Doha
Declaration). The decisions have expanded the normative value of the Doha Declaration,
recognising it as an interpretative aid to assure the public health construction of the Agreement on
Trade-Related Aspects of Intellectual Property (TRIPS Agreement) and trademark rights. Hence,
this research argues that the Doha Declaration has an expandable use beyond its traditional
application to the patent regime in upholding a delicate balance between intellectual property rights
and public health interests in the disputes which may arise under the TRIPS trademark provisions.
In this context, this research investigates two questions. First, how do the WTO rulings use the
Doha Declaration as an interpretative aid to balance the conflicting interests between tobacco-
related trademark owners and the TRIPS Member countries’ regulatory autonomy to adopt plain
packaging measures? Second, what is the impact of WTO rulings’ use of the Doha Declaration on
the understanding of trademark rights and the application of the TRIPS Agreement in future
disputes? This research employs a doctrinal legal research method which consists of an extensive
review of primary and secondary sources dealing with trademark and plain packaging debate, the
WTO dispute settlement system, and the intersection of international trade, IP, and health laws to
answer these questions. Using Australia—Tobacco Plain Packaging rulings as case studies, this
research outlines lessons and challenges for future development of tobacco, alcohol, processed
food and soft drink labelling measures.
Keywords: Australia—Tobacco plain packaging, Doha Declaration, IP, public health, trademark
rights
12
Blending Trademark Rights with the Metaverse: Can Sri Lanka Tackle Non-
Fungible Tokens through the Conventional Trademark Law Regime? –
Lessons From the United States
Wathsala Ravihari Samaranayake
Non-Fungible Tokens (NFTs) have unveiled new opportunities as well as new challenges for
trademark owners. NFTs are unique in that they cannot be easily replicated as they are ‘minted’
through smart contracts which verify ownership and manage transferability. However, this unique
quality of having an immutable proof of ownership in NFTs does not necessarily foreclose avenues
for misappropriation. The reason is that an NFT is merely a representation of the underlying asset
and not the asset itself. Hence, the ownership of an NFT does not necessarily mean ownership of
the underlying asset nor any intellectual property right pertaining to such asset. An upshot of this
is that NFTs that simulate someone else’s trademarks are quite common. Nevertheless, such
imitation has sometimes been justified on the ground of ‘nominative fair use’. Undeniably, the
legal controversy posed by NFTs is a classic example of technology outstripping traditional legal
strictures. Therefore, the question invariably arises whether the fundamental principles embodied
in the canvas of conventional trademark law regime can be extended to the crypto world. For
example, would the courts treat the respective virtual and real goods as similar in assessing the
confusing similarity in such cases? What is the application of the exhaustion principle?
Axiomatically, the bewildering complexity created by NFTs poses a major challenge for Sri
Lanka’s trademarks law regime. For instance, one might question if the statutory provision
prohibiting dilution is adequate to grapple with NFT-related trademark violations. Similarly,
would the absence of express statutory recognition of the nominative fair use exception unfairly
prejudice NFTs owners? Thus, in this paper, an attempt is made to critically evaluate the adequacy
of the existing law on trademarks in Sri Lanka to cope with the legal dilemma created by NFTs.
This comparative study will employ a qualitative desk-based research method.
Keywords: non-fungible tokens, trademarks, infringement, fair use
13
The Role of Access and Benefit Sharing on the Use of Genetic Resources and
Associated Traditional Knowledge: A Comparative Analysis
Kavindu Hewa Geeganage
Traditional Knowledge refers to knowledge, innovations, and practices of local communities
which have been developed in a distinct, long-established tradition over generations. Consequent
to the Convention on Bio-Diversity entering into force, access to diverse genetic resources, as well
as the fair and equitable sharing of benefits from the utilisation of these resources and Traditional
Knowledge, emerged as major debatable concerns. The need for institutional arrangements to
control access and benefit-sharing agreements, as well as define ownership of biological resources
including their associated Traditional Knowledge, is currently being argued under the topic. With
the advancement of contemporary technologies, Traditional Knowledge related to natural and
biological resources including their economic and scientific significance has drawn a diverse
spectrum of commercial sector contributors for their use. Therefore, in this study, the function of
access and benefit-sharing mechanisms on the utilisation of Traditional Knowledge is
hypothesised to be a beneficial approach to mitigate the constraints of contemporary society. The
purpose of this research is to investigate and assess the significance of access and benefit sharing,
particularly within the parameters of the Convention on Biological Diversity and the Nagoya
Protocol, which provide avenues for encouraging local communities to safeguard their Traditional
Knowledge while commercialising the same. This study primarily falls into the qualitative research
paradigm of legal research and is based on the Black-Letter method of legal research. Additionally,
the comparative legal analysis method was utilised to compare international legal instruments and
analyse various practical examples from several jurisdictions in the area of protecting traditional
knowledge. This study delved into unrevealed terrain in terms of the protection of Traditional
Knowledge through ‘access and benefit sharing’ in Sri Lanka. It is expected that this study will
contribute to the theoretical underpinning of Traditional Knowledge by conducting a
comprehensive evaluation of ‘access and benefit sharing’ on the utilisation of Traditional
Knowledge.
Keywords: traditional knowledge, genetic resources, fair and equitable sharing, access and
benefit-sharing agreements
14
Protection of Non-Traditional Trademarks under Sri Lankan Law: A Critical
Perspective
Naazima Kamardeen
In the past few years, there has been some debate as to whether non-traditional trademarks
(including sound, touch, taste and feel marks) should find protection under the intellectual property
(IP) laws of Sri Lanka. The original drafters of Sri Lanka’s IP legislation omitted this category of
marks from the scope of registrable trademarks for extremely valid reasons, such as the dearth of
local innovation in the area and the cumbersome nature of the examination and protection process.
This paper hopes to revisit some of these arguments in light of modern developments and consider
whether non-traditional trademarks should be admitted to the category of marks receiving
protection under the Sri Lankan law. The paper will adopt a doctrinal approach with some elements
of sociolegal inquiry in order to ascertain the views of experts in the field. It will first define non-
traditional trademarks and analyse both the Sri Lankan and global rules governing trademarks,
including approaches of jurisdictions that allow non-traditional trademarks to be registered. It will
then consider the economic, social and cultural reasons for both allowing and denying the
registration of non-traditional trademarks in Sri Lanka, with reference to both research already
done and empirical research conducted specifically for the purpose of this paper. Finally, the paper
offers some projections for the future of non-traditional trademarks in Sri Lanka.
Keywords: trademarks, non-traditional trademarks, intellectual property
15
Survival of the Fittest vs. Murder of the Weakest: A Defence of Darwinian
Evolutionist Legal Theory
Nath Gunawardena
Legal scholarship has always been sceptical of jurisprudential theories derived from other
disciplines. Evolutionist jurisprudence, which is rooted in the biological theory of evolution, is one
such theory that has attracted its fair share of criticism. The evolutionist school of thought gained
popularity in the latter half of the 19th century in the wake of the Darwinian revolution. As a result,
certain aspects of this natural science theory also seeped into the social sciences. However, it
rapidly fell into disfavour, especially after the second world war, due to its association with Social
Darwinism which corrupted evolutionist jurisprudence and was used to justify fascist regimes,
eugenics, imperialism, and various human atrocities. Through a qualitative, library-based study,
this paper grapples with the problem of whether evolutionist jurisprudence can be isolated from
those unsavoury elements which have led it to disrepute. The author adopts an interdisciplinary
approach, drawing on scholarly opinion from the disciplines of jurisprudence, sociology, biology,
philosophy, economics, and political theory. Given its interdisciplinary nature and the inherently
broad scope of jurisprudence, this study also utilises Max Weber’s ideal-typical methodology of
conducting social science research. The analysis is primarily based on secondary sources such as
books and journal articles which reflect academic opinion on the relevant theories. It also refers to
certain primary sources, such as legislation and case law across multiple jurisdictions, to illustrate
how the theories analysed in this study manifest in real-world situations. The study begins with a
characterisation of Darwinian evolutionist theory and highlights several benefits it offers over
other jurisprudential theories. It will then analyse how certain misapplications of Darwinian theory
led to the unpopularity of this school of thought. This paper ultimately seeks to defend Darwinian
evolutionist legal theory by arguing that the ‘survival of the fittest’ does not require the ‘murder
of the weakest’.
Keywords: Darwinian evolutionist legal theory, evolutionary jurisprudence, theory of evolution,
social Darwinism, law and science
16
Maintaining Legal Professional Values while Adapting to Digital
Transformation
Vajira Galigamuwa
This research paper discusses how digital innovation can be successfully used to improve various
legal services, exemplifying positive and permanent changes and addressing the challenges arising
in the legal field. The qualitative and quantitative methods were employed to develop a theoretical
framework for the study. Over twenty semi-structured interviews were conducted online and in
person with legal professionals in five countries to frame the debate on adopting the legal
profession to digital transformation. Further efforts were made to identify the contemporary
barriers and opportunities modern law firms face in light of their daily work experience. In light
of these investigations, this research demonstrates how some countries’ legal profession struggles
to cope with digital innovation. While analysing the data, the research further focuses on six core
themes: human culture, markets, technology, institutional transitions, legal processes, and
education. In doing so, the research underscores the urgency of ensuring cohesion between the
professional values of lawyers and digital innovations and the significance of contextualising the
abovementioned core themes and exploring their underlying dimensions. Indeed, it aims to
develop an evidence-based conceptual framework that critically assesses the intersection between
professional ethics and digital innovations in the field of law, advancing the theoretical and
empirical understanding of why modern law firms should invest in technology, multidisciplinary
education and training. Finally, it emphasises the significance of digital innovation in adopting
hybrid and more advanced client management methods.
Keywords: professional ethics, legal profession, digital transformation, human culture,
17
Whistle-blower Protection through Right to Information: A Critical Review
with Special Reference to Sri Lanka
G.P.D. Madhushan and K.A.A.N. Thilakarathna
Whistleblowing can be identified as a means of voicing out wrongdoings in a given establishment
to either inside or outside channels. It should also be noted that whistleblowing is a way of
expressing one’s dissent concerning wrongdoing which should be respected and guaranteed, albeit
with such limitations as required in a democratic society. While this can be identified as a means
of combating corruption and enhancing accountability, transparency, and good governance
through such disclosures, the existing legal regime in Sri Lanka does not provide explicit
protection for such individuals when they are being retaliated against. This research aims to
analyse the right to information regime in protecting the whistle-blowers through the right to
information law, through a qualitative method by analysing statutory provisions and decisions of
the Right to Information Commission of Sri Lanka. The results reveal that section 40 of the Right
to Information Act No. 12 of 2016 provides protection for officers and employees of public
authorities who disclose or release information that is under their custody, control, or possession
that they are entitled to disclose under the RTI. Act should not be retaliated by means of
disciplinary action or any punishment. It is argued that this provision is capable of providing some
protection for individuals in the public authorities who decide to blow the whistle by way of
disclosing or releasing upon their own initiation. It is recommended that; whistle-blower protection
should be widely recognised in order to achieve the objectives of the Act.
Keywords: whistleblowing, right to information, release of information, transparency, whistle-
blower protection.
18
Shifting Towards E-voting for Enhancing the Right to Vote in Developing
Countries
Dharanee Weerasekera
Universal franchise is a significant feature in democratic countries. Hence, systematic election
management is essential for assessing the franchise. Many countries have launched e-voting
successfully while some others are at the experimentation level. The traditional election
mechanism is a highly time-consuming process. Long queues in polling stations and paper ballots
may discourage busy voters to use their votes, which may result in a lower voter turnout. Moreover,
prolonged traditional process has become an excuse for the authorities to refrain from holding
elections in a timely manner. The electronic voting system enriched with sophisticated technology
offers citizens a smooth voting experience while overcoming the aforesaid drawbacks. This paper
highlights how shifting towards e-voting leads to an enhanced democracy in developing countries
by eliminating the barriers to exercising the franchise. A comparative study of other jurisdictions
was used as the methodology of this study for analysing the pros and cons of e-voting. The findings
revealed that the perception of voters from different social backgrounds should be deeply
considered before implementing e-voting in developing countries. Furthermore, findings indicated
that the ballot paper counting process becomes easier and more convenient if the e-voting system
is implemented. However, the findings revealed that the lack of technological expertise, massive
implementation cost, and lack of trust among the public are the key disadvantages. Moreover, it
was concluded that by introducing a strong legal framework and by inculcating public trust and
awareness among the citizens of developing countries, e-voting can be successfully implemented
in order to enhance the right to vote.
Keywords: e-voting, election management, franchise
19
A Critical Examination of the Legislature and Judiciary’s Views on the
Prevention of Terrorism (Temporary Provision) (Amendment) Act No.12 of
2022
Niluka Gamalath
The Prevention of Terrorism (Temporary Provision) Act No.48 of 1979 (PTA) is the primary
legislation in the prevention of terrorism in Sri Lanka. The PTA was intended to be a temporary
measure when it was enacted in 1978; however, it is continuously being used as a preventive
measure or perhaps a veil for allowing systematic human rights violations in Sri Lanka. The PTA
has been amended three times, and by the amendments in 1982 and 1988, the powers conferred in
the original Act were further enhanced. However, the Sri Lankan government presented the 2022
Amendment in a different context compared to the previous two amendments. For example, the
2022 Amendment was introduced in the context of strong pressure from the international
community and national critics. The 2022 Amendment was brought as an urgent response where
the negative effects even on Sri Lanka’s economy have arisen due to the continued disregard of
the recommendations made by the international communities as a response to various human rights
violations that occurred in Sri Lanka. The objective of this paper is to critically examine the views
of the Supreme Court and Parliament on the 2022 Amendment and to determine whether these two
major institutions intended to contribute and facilitate the implementation of amendments in
accordance with international standards. A qualitative methodology is adopted for this study. The
focus of this paper is to critically examine the provisions of the 2022 Amendment with the Supreme
Court Determination on the bill titled Prevention of Terrorism (Temporary Provision) Amendment
of 2022 and the Parliament debate on the 2022 Amendment. Even though the Supreme Court has
had the opportunity to take a pragmatic approach in analysing the amendment and the PTA, the
Supreme Court has limited its interpretation by relying on the limitation of judicial review of an
Act. During the debate on the 2022 Amendments, the Sri Lankan Parliament acknowledged that
the anti-people provisions of the PTA should be removed. However, this paper argues that the
contribution towards reaching that goal of the 2022 Amendment was not significant and needs
serious attention from the relevant stakeholders.
Keywords: prevention of terrorism, amendments, judiciary, parliament
20
Judicial Independence and Sri Lanka’s Fundamental Rights Jurisprudence
Dinesha Samararatne
Since 2001, appointments to the appellate judiciary in Sri Lanka have been the subject of
constitutional reform. Under the 17th and 19th Amendments to the Constitution, in 2001 and 2015
respectively, presidential appointments to the appellate judiciary have been subject to the approval
of the Constitutional Council. Before the 17th Amendment and under the 18th and 20th Amendments
these appointments have been at the discretion of the President. One of the arguments in favour of
subjecting judicial appointments to the approval of the Constitutional Council is that it strengthens
judicial independence. This paper assesses this claim through a doctrinal study of the jurisprudence
of the Supreme Court under Art 126, under the 19th Amendment (2015-2020). It contrasts the
jurisprudence of this period with the jurisprudence of the Court under the 18th Amendment (2010
to 2015). The number of judgements from 2015 to 2020 is greater, and the judicial reasoning is
more detailed, well developed, and expands the scope of rights protection. Through judicial
interpretation, the Court strengthens its jurisprudence and includes new rights such as rights of the
environment through interpretation. In several cases, the Court orders innovative remedies. The
Court develops its jurisprudence on the right to life and human dignity in a reasoned manner.
Moreover, the Court engages in direct judicial incorporation of relevant international law. It is
suggested, therefore, that while causation is difficult to establish, there is a strong correlation
between the independence of the judiciary and the quality of the jurisprudence of the Court. It is
further suggested that this finding supports arguments in support of the reintroduction of the
Constitutional Council and the re-establishment of a Fourth Branch in Sri Lanka’s constitutional
architecture.
Keywords: judicial independence, fundamental rights, judicial review, Sri Lanka, constitutional
reform
21
Legal Education in a Digitalised World: Reforms to the Pedagogy of Public
and International Law Courses at the Undergraduate Level
Wasantha Seneviratne
Sri Lankan law schools offer international law subjects in their curricula either as compulsory or
optional courses based on their significance, relevance, availability of resources, needs and
demands. International law courses provide universal parameters to be followed by sovereign
states through their public bodies. International law courses require dramatic reforms to keep
abreast with the changing dynamics and challenges in a digitalised world. This research aims at
proposing necessary reforms to the pedagogy of international law courses offered at the
undergraduate level in Sri Lankan universities, by drawing comparative examples from prestigious
law schools in selected jurisdictions. The main research problem is “what kind of changes should
Sri Lankan universities introduce to their undergraduate level pedagogy to equip students with
satisfactory knowledge, skills, attitudes and mindsets to conduct themselves upon graduation as
professionals in law in a society which suffers from several democratic deficits in governance”.
This qualitative research analyses fundamental legal theories relating to international law subjects
and their practical application, considering the required changes to the law school curriculum to
improve the pedagogy of these subjects. This research hypothesises that the dearth of public
discourses with the involvement of academics, students, lawyers and affected communities as a
major void and emphasises the need to integrate an investigative approach to issues relating to the
international obligations of sovereign States in the pedagogy and having constant dialogues with
public bodies which are responsible to implement those obligations on behalf of the general public,
in addition to its academic components. Technological developments should be used in this
blended approach to improve the efficacy of this new pedagogy.
Keywords: legal education, public and international law courses, pedagogy, reforms
22
Security Detention During Non-International Armed Conflicts: A
Reassessment of the Sri Lankan Civil War
Navodanie Ratnatilake
Security detention, imposed by States in the interest of national security, is widely known to have
the nature of depriving one’s rights and liberties. It has also been the subject of many controversial
debates over the years. Controversies on this concept have never ceased to exist and have rather
progressed over time due to various forms of arbitrary measures resorted by states to detain persons
in the guise of national security. Security detention most often comes into practice during armed
conflicts and bears a gravity of its own, depending on the conflict’s nature and the associated
military involvement. Sri Lanka, a State with a history of a three-decade civil war, accounts for
many violations in the last stages of the battle surfacing risks involved in security detention,
especially during a non-international armed conflict. Against this backdrop, this research aims to
observe the legal permissibility attributed to security detention in the context of a non-international
armed conflict with reference to Sri Lanka, reassessing the involvement of its military in the
detainment and treatment of detainees which accounts for a series of human rights and international
humanitarian law (IHL) violations during its course. This research is based on secondary data with
limited literature available for reference as the concept is still a developing area in international
law. The study will analyse the applicability of security detention in light of international, regional
and domestic legal instruments alongside different theories introduced by experts in the field of
IHL. In conclusion, the research addresses best practices to be adopted for the ongoing
reconciliation process with recommendations to avoid any such atrocities in the future. It further
seeks to be a guide for parties to a conflict, especially for State forces, on how military necessity
be balanced and standards of humanity are maintained even at the highest peak of the war,
believing that this study will also contribute towards the enhancement of the concept and literature
evolving human rights and international humanitarian law.
Keywords: security detention, non-international armed conflict, civil war
23
Regulating the Circulation of Disinformation via Social Media amidst an
Armed Conflict
M.J. Christina and S.P. Jayasinghe
In the 21st century, social media functions as a main platform for communication due to its
widespread popularity and ease of access. During an armed conflict, social media becomes a
prominent disseminator of information through which the international community receives
updates regarding the ongoing situation. However, the information transmitted through social
media is rarely subjected to any systematic review. Hence, there is a high tendency to circulate
disinformation through social media. This is frequently discernible during an armed conflict where
sensitive and confidential information may be distorted and shared without any verification. This
may negatively affect the possible reconciliation between the parties to the conflict and create
unnecessary apprehension and restlessness among the general public. Further, this may threaten
international peace and security. This research paper analyses the impact of the circulation of
disinformation via social media during an armed conflict. The authors assess two real-world
instances, namely, the Libyan civil war and the Russo-Ukrainian war, where disinformation
circulated via social media has aggravated the armed conflict and created immutable and indelible
ramifications. If social media platforms are effectively regulated, that will prevent an armed
conflict from escalating due to such disinformation. However, doing so should not infringe the
right to freedom of speech, expression and publication that people are entitled to. In the status quo,
existing regulatory mechanisms in social media have been ineffective in mitigating this issue.
Hence, the authors propose a novel reviewing and verification mechanism that would identify and
classify information communicated regarding ongoing armed conflicts as verified and unverified
through specific colour codes, allowing social media users to distinguish between reliable and
unreliable sources of information. In conclusion, such a regulating mechanism would be an
innovative approach which facilitates peaceful dispute settlement by mitigating the challenges
caused by the circulation of information during an armed conflict.
Keywords: armed conflict, social media, regulating disinformation
24
Ending Conflict-related Sexual Violence against Women: An Appraisal of
Innovative Approaches in Implementing International Human Rights
Obligations of Sri Lanka
B.H.R.M. Senaratne
Sexual violence against women is a serious crime and a violation of their human rights, and is
copiously used as a ‘weapon of war’ mainly with the strategic purpose of destroying communities,
and reconfirming military masculinities. Progressive substantive and procedural laws have
emerged in international human rights law, humanitarian law and criminal law. Despite such recent
advancements in the international arena, Sri Lanka lacks sufficient and effective laws and victim-
friendly procedures mirroring these developments to protect women against such abhorrent
practices. This research strives to examine and recommend reforms to effectively translate these
developments regarding conflict-related sexual violence against women (CRSV) into the domestic
law of Sri Lanka. The main research problem is ‘how can the legal framework of Sri Lanka be
improved by incorporating the recent developments in the international legal sphere which protect
the human rights of women against CRSV? This qualitative research analyses scholarly work, case
law jurisprudence and international and domestic legal instruments. Preliminary findings unveil
that the benighted domestic legal framework could be improved by following innovative
approaches of the International Criminal Court in providing gender-sensitive investigations,
counselling, requiring the attorneys to be sensitive to the victims’ interests during prosecutions,
and manoeuvring the existing in camera procedure to reap the maximum benefits of digitalisation.
The research recommends that Sri Lanka should enact an enabling legislation to implement its
legal obligations under the United Nations Convention on the Elimination of All Forms of
Discrimination Against Women and its Optional Protocol, especially due to its individual
communications mechanism, as mere ratification is insufficient because Sri Lanka is a dualist
country. Whilst appreciating the vibrant trend of judicial activism in certain cases which indicate
monist traits, it further recommends that the judiciary continues to deliver proactive judgements
in the absence of enabling legislation owing to legislative lethargy, in granting citizens the benefits
emanating from international law standards and developments. This research concludes with the
suggestion of bestowing upon Article 12 of the Constitution a broader interpretation to implement
the State’s obligations to guarantee the rights of women to be free from gender-based violence.
Keywords: sexual violence, women, armed conflict, human rights obligations
25
Revival of Roman-Dutch Law in the Realm of Restraint of Trade in Sri Lanka
Darshana Sumanadasa
Restrictive covenants are a common phenomenon in the business world and the employment
context by which the covenantors agree to give up the personal freedom they would otherwise
enjoy for the benefit of the covenantee. They include non-disclosures, non-competes, and non-
solicitation agreements which intend to protect the legitimate interests of a business such as
confidential information and clientele. The legal approach to such contracts in Sri Lanka relies
upon upon English law principles. Accordingly, restrictive covenants are prima facie void unless
they get through a two-fold test – reasonableness in the interests of the parties and reasonableness
in the eye of the public. This test was established by the Nordenfelt case in the 19th century, which
has been a travelling jurisprudence in common law jurisdictions for over a century. Krishnan
Chetty, the first ever reported case on restraint of trade in Sri Lanka, applied English law on the
basis that South Africa, which is identical to Ceylonese law, follows English law on the issue.
However, in 1984, in Magna Alloys, relying on Voet’s Pandects, the South African Supreme Court
of Appeal held that this area of law should be governed by Roman-Dutch law, the common law of
South Africa. The Court held that the restraints are prima facie valid unless the covenantor shows
that it is against public policy. Accordingly, the burden of proof is with the covenantor to prove
that the covenant is against public policy. Based on desk research, this paper argues that Sri Lankan
Courts may consider rectifying the judicial approach to restraint of trade by applying Roman-
Dutch Law principles. That is because Roman-Dutch law is considered to be the common law of
Sri Lanka, and Voet is recognised as the most respected classical Roman-Dutch law jurist in Sri
Lanka and South Africa. However, though it is commendable, this paper does not argue that Sri
Lanka should embrace the South African judicial approach to restraint of trade which has been
developed after 1996 through the horizontal application of the bill of rights based on Articles 2, 8,
and 39(2) of the Constitution. That is because Sri Lankan law cannot be guided by such a
development as Articles 168 and 16 permit the application of existing laws despite their
inconsistency with constitutional provisions.
Keywords: restraint of trade, Roman-Dutch law, English law
26
Liability of Online Platforms for Cross-Border E- Commerce Food Fraud
from a Private International Law Perspective
Samangi Abeyrathne
Cross-border e-commerce of food has opened a wide door to international supply chains of food
and widened the consumer’s right to choose to order food products from outside of their own
jurisdiction. Even though this digitalisation of the food supply creates many opportunities and
business innovations, it poses a dilemma for the traceability of food and liability of food suppliers
in a case of food fraud. These food items often come through postal services as products for self-
consumption and could subsequently be missed by official controls. This would limit the
authority’s capability to perform official control and require that only consumers themselves can
identify fraudulent products and report their suspicions to relevant authorities. In general, food
fraud is the deliberate placing on the market of food with the intention of making a financial profit
through consumer misrepresentation. Cross-border e-commerce has created an easy getaway for
mislabelling, adulteration, substitution, dilution, tampering, simulation, and counterfeiting of food
products because of the anonymity and the fast-moving nature of the e-commerce sector and the
lack of intensive control. This research aims to study the European Union legislative framework
on the liability of online platforms for food fraud while examining the Sri Lankan legal framework.
The objective of the research is to identify and discuss cross-border consumer protection from food
fraud in e-commerce through the lens of private international law. In conclusion, the author intends
to analyse the efficiency of juridical protection for consumers who contract with foreign sellers by
electronic means under private international law principles. This is doctrinal research based on
primary and secondary sources of law.
Keywords: cross-border e-commerce, liability, food fraud, European Union law
27
Rethinking the Laws to Accommodate Medical Law Innovations: With
Special Reference to Embryo Storage and Disposal
Danushika Abeyrathna
Innovations relating to assisted reproductive technology have given wider opportunities for
infertile couples to have children. However, there are many dilemmas to be addressed by law. For
example, disposing of surplus frozen human embryos poses contentious ethical concerns that lack
legal attention in Sri Lanka. To achieve pregnancy, physicians frequently fertilise many eggs and
generate cryopreserved or frozen human embryos for eventual transfer to the woman’s womb.
Successful egg retrievals produce 1 to 20 eggs, with the quantity cryopreserved depending on
fertilisation and development before freezing. However, in their efforts to produce a child, many
couples do not use all of their stored embryos. A related and more sophisticated dilemma arises
when couples who have already had In vitro fertilisation (IVF) and have frozen embryos in storage
disagree about how to dispose of their frozen embryos. The primary objective of this research is
to evaluate the effectiveness of the existing legal framework in addressing issues related to embryo
storage and disposal and make recommendations for reforms thereof. The research is primarily
qualitative in nature. A comparative analysis of domestic and foreign legislation, academic articles,
case law, and reports by recognised organisations/institutions from Sri Lanka and the UK follows
a desk review of existing international human rights instruments. The research seeks to address
the dilemmas posed by embryo storage and disposal in the light of Dworkin’s argument on abortion
in his book “Life’s Dominion”. In conclusion, the paper recommends that the State eliminate
embryo storage and disposal ambiguities through appropriate legislative intervention.
Keywords: assisted reproductive technology, embryo, disposal, storage
28
Emerging Rights of Fetal Patients: A Legal Analysis
A.P. Rathnayake
There are varying standpoints in the community about the legal personhood of the human fetus.
The dependent biological status entrusts the pregnant woman with rights to make decisions about
fetal existence. Emerging medical procedures like fetal surgeries have caused the recognition of
the fetus as a patient. The consent of the pregnant woman is an essential requirement to commence
medical treatments on a fetal patient in the womb. The physician who engages in treating the fetal
patient, communicates the possible treatment plans and consequences to the pregnant woman and
the latter’s autonomous decision-making plays a prominent role. The traditional maternal-fetal
relationship is currently challenged by recent developments in law adopted by developed
jurisdictions. The enactment of new laws based on the fetal heartbeat, medical ethics on fetal pain
and fetal protection laws have influenced maternal supremacy over the relationship. The research
further analyses whether the fetus is entitled to rights independent of the pregnant woman. The
study aims to identify the medical ethics pertaining to the maternal-fetal conflict and analyse legal
developments upholding the rights of fetal patients. The theoretical foundation of the research is
based on medical ethics, namely, autonomy and beneficence. The author has adapted the
qualitative approach and the use of primary and secondary sources of law throughout the study is
significant. The author has analysed case laws, international and domestic legal instruments, and
academic and research publications. The study involves analysing medical ethics and legal aspects
relating to the personhood of the fetus, and the emerging trends of protecting fetal patients. In
addition to this, the study has an in-depth discussion on the maternal and fetal conflict. The author
concludes that granting legal protections to fetal patients has influenced the autonomous decision-
making of pregnant women.
Keywords: fetal patients, personhood, protection laws, medical ethics
29
Currencies of the Future and their Legal Implications to Sri Lanka
Sehan Soyza
Digital currencies (DCs) are now considered an acceptable means of payment by the International
Monetary Fund (IMF). Furthermore, with the imminent introduction of central bank-issued digital
currencies (CBDC), DCs have the potential to become digital payment instruments and stores of
value that will be a direct legal liability to the issuing central bank. Against this backdrop, this
paper attempts to undertake an analysis of the legal implications of the developments in the field
of DCs in Sri Lanka with an emphasis on ascertaining the manner other (closely related)
jurisdictions have dealt with or adopted their legal systems to overcome the unique challenges
posed by DCs. Accordingly, this paper critically examines and compares the applicability of
English law on DCs in Sri Lanka. Both primary sources, such as legislation and judicial precedent
and secondary sources, such as journal articles, have been surveyed. The research concludes that
English Law principles, as developed by the Judiciary in England, could provide basic legal
protection to the users or investors of DCs in Sri Lanka. However, this depends on the specific
case in hand, and further English Law will only apply as the residual law. Therefore, the research
suggests that comprehensive legislation is essential for Sri Lanka to complement the judiciary’s
role in order to encourage and facilitate international trade and investment in DCs.
Keywords: digital currencies, blockchain, legal tender, regulations, payment and settlement
systems
30
Regulating the Use of Artificial Intelligence in E-Commerce: A
Comparative Analysis of Sri Lankan and European Union Legal Frameworks
B.A.R. Ruwanthika Ariyaratna
Artificial Intelligence (AI) is systematically replacing human involvement in business transactions
by giving new insights into e-commerce. Many large-scale online business entities, such as
Amazon, Alibaba, and eBay, are currently using AI technologies to communicate with customers
via chatbots, make product recommendations, and conduct comment mining. However, an
appropriate regulating system should be in place to supervise the use of AI in e-commerce because
AI-related technologies can threaten human rights, invade privacy, breach data protection
standards, misuse personal information, and create some labour-related issues. In this context,
there are some ongoing discussions at both international and national levels regarding the necessity
of regulating the use of AI in e-commerce. Recently, the European Commission has proposed the
Artificial Intelligence Act as a regulatory and legal framework for AI. This research investigates
whether the existing IT laws in Sri Lanka are adequate to establish a proper regulatory framework
for AI in e-commerce. As the main objective, this research proposes recommendations for Sri
Lankan IT legal framework to develop an appropriate mechanism for regulating AI-related
activities in e-commerce. The research follows the doctrinal approach with a comparative analysis
of Sri Lanka and European Union law. The research findings reveal that Sri Lankan IT legal
framework is still unable to meet the changing needs of e-commerce, particularly in regulating AI
technologies. Therefore, compared with the EU legal framework, this research recommends some
legal measures that can be used to improve the credibility of the e-commerce industry in Sri Lanka,
including the prohibition of hazardous AI applications, implementation of a mandated self-
assessment system, and establishment of data protection policies for AI applications.
Keywords: e-commerce, artificial intelligence, regulating AI
31
Protecting Integrated Circuits to Promote Business Interests in Sri Lanka: A
Comparative Analysis
K.V. Rashani Janadari Perera
Technology has become one of the key elements of globalisation which plays a major role in the
global economy. In the contemporary knowledge-based, technology-driven economy, the field of
intellectual property plays a prominent role in promoting technological development by protecting
the rights of individuals. Integrated circuits can be identified as a relatively new member of the
intellectual property rights pantheon, and the purpose of this research is to identify the practical
aptness of using integrated circuits to promote business interests in Sri Lanka and to evaluate the
suitableness of the existing legal landscape to protect the same. The main research question is
whether the existing intellectual property regime of Sri Lanka is providing adequate protection to
integrated circuits or not. Even though integrated circuits can be categorised as an intellectual
property right in Sri Lanka, this research ascertains that the existing law is questionable when it
comes to its reliability and practicality of the law. The innovators who innovate and develop
integrated circuits are being demotivated, and the impact will definitely affect the business regime.
In view of the business interests in Sri Lanka, there is a socio-economic need to protect integrated
circuits through intellectual property rights with a focus on practical utilisation to promote business
interests. This research is mainly based on the black-letter approach of research methodology.
Additionally, the sociological approach was also utilised to address the gap between the law and
practice. Consequent to the analysis of the case law, practical application of the statutory
provisions of Sri Lanka, and the laws of other jurisdictions, this research is of the view that the
current legal framework is not adequate for the need of the right holders of integrated circuits and
successful utilisation to promote the business interests. Finally, this research intends to make
recommendations for the successful utilisation of integrated circuits to promote business interests
and for the robust protection of integrated circuits.
Keywords: integrated circuits, business interests, technology-driven economy.
32
Protecting Consumer Data in the Retail Sector in Light of Targeted
Advertising: A Comparative Analysis of the UL and Sri Lanka
P.S.P.G. Vithanage
The interface of retail and marketing industries has drastically changed with e-commerce in the
modern world. Traditional marketing occurred on billboards and road signs are shifted to online
platforms. Today, the ‘adtech’ industry processes consumers’ data and observes consumer
behaviour to provide more personalised advertisements to consumers. As a result, ensuring
consumer data privacy in modern markets has become a challenge. Thus, the central research
problem of this study is whether the existing data protection laws are adequate to protect consumer
data privacy in retail sector targeted advertising in the UK and Sri Lanka? The main research
objective is to examine to what extent consumer data is, could, and should be protected in retail
sector targeted advertising. This research deploys a comparative research methodology through a
critical review of the literature. The comparative research with the UK contributes to identify the
possible challenges and solutions in the implementation of the data protection law in Sri Lanka
which is at a primitive stage. The research concludes with recommendations through a user-centric
dualist approach of regulating the industry and empowering consumers. The research argues that
consumers’ legal right to data privacy should never be undervalued in the interest of adtech
industry. The researcher argues that becoming a highly conscious consumer is challenging in this
information age where a large amount of consumer data is processed specifically in retail
marketing. Thus, the data protection law and supplementary consumer law approach under ‘unfair
commercial practices’ has the potential to mitigate the risk and ensure consumer data privacy
through regulatory and industry involvement.
Keywords: consumer behaviour, consumer choice, privacy, nudging, targeted advertising
33
A Critical Analysis of The Legal Regime for E-Waste Management in Sri
Lanka
P.M.M.S Kumari, Deepthi Wickramasinghe, and Sanath Wijesinghe
One of the main challenges that the world is facing today is the increasingly generated solid waste.
Therefore, many laws and policies are in place globally to manage solid waste. With technological
advancement, generation of the ‘e-wastes’ or end-of-life electrical and electronic equipment is
growing with a novel addition to hazardous wastes. Even though e-waste generation is high in
developed countries, laws are available to set acceptable standards to secure environmental quality.
In contrast, developing countries generate relatively less e-wastes, but unfortunately, adequate
laws do not exist. In this context, the current research attempted to analyse the existing laws and
policies in relation to e-waste management in Sri Lanka. The main objective of this research is to
find information to support legal decision-making and empower legislative arguments to protect
the environment. This study followed a doctrinal legal analysis using primary and secondary
information sources to study the existing legal regime in relation to e-wastes. Results revealed that
though there are substantial legal provisions in Sri Lankan legal regime in relation to ‘waste
management in general, no special legal remedies exist for e-waste management. National
Environmental Act, Municipal Council Ordinance, Urban Council Ordinance, and Pradeshiya
Saba Act are committed to solving waste management issues with no particular reference to ‘e-
waste’. The only place where ‘e-wastes’ is mentioned is under Goal 03 of the National Action Plan
on Plastic Waste Management 2021-2030 and section 8.2.6 of National Policy on Waste
Management 2020. On the other hand, Sri Lanka is a signatory to the Basel Convention, under
which transboundary waste management is covered including e-wastes. Since many unsound e-
waste disposal practices are evident in the country, this research highlights the compelling need
for developing a robust ‘e-waste management legal regime’ to safeguard the environment and
public health.
Keywords: e-waste management, environmental protection, public health, Basel Convention, Sri
Lankan law.
34
The Dilemma of Recognition or Non-Recognition of the Right to Live in a
Clean Environment as a Fundamental Right: A Comparative Constitutional
Study with Particular Focus on Sri Lanka
P.K. Manawa Nanayakkara
The debate over recognising or non-recognition the right to live in a clean environment as a
fundamental right has been a delicate issue in contemporary constitutional and environmental law
scholarship. Some researchers argue that recognising the right to live in a clean environment as a
specific constitutional right is essential to ensuring environmental justice and environmental
protection and mitigating the adverse impact of climate change. At the same time, some researchers
claim that the right to a clean environment can be extracted through other fundamental rights, such
as the right to life, the right to health, and the right to information. The latter argument favours
pragmatic judicial decisions and changes to the existing fundamental rights rather than introducing
a new provision on the right to live in a clean environment to a constitution. However, the Sri
Lankan Constitution may need to consider both aspects in search of an optimal solution to include
the right to live in a clean environment as a fundamental right. Hence, this research examines both
extremes of this scholarly debate, particularly looking at the constitutions of Nepal, India, and
Bangladesh to make suggestions on how Sri Lankan constitutional law could be expanded to
recognise the right to live in a clean environment a fundamental right. To achieve this objective,
this research adopts a doctrinal legal research method, including an extensive review of the
relevant literature and a comparative analysis of the specific provisions of the Nepal, India, and
Bangladesh Constitutions. Finally, this research focuses on making achievable suggestions on how
Sri Lanka could expand the existing fundamental rights chapter to invoke the right to live in a
clean environment.
Keywords: right to life, clean Environment, fundamental rights, comparative constitutions, Sri
Lanka
35
Elevating Public Participation in the Environmental Impact Assessment
Process in Sri Lanka – A Comparative Analysis
Selvaraj Puwanitha
Enhancement of Public Participation (PP) in the process of Environmental Impact Assessment
(EIA) is considered an essential factor in fostering Environmental Justice. Although PP is
subsumed to the substantive laws of Sri Lanka, the lack of effective provisions to environmental
laws in integrating effective participatory techniques that ameliorate the quality of the information
provided during project approval processes undermines the values and objectives of incorporating
PP in the EIA process. It is essential that the public should be given a fair opportunity to defend
their rights relating to the environment for smoother functioning at the implementation level, even
though it might be complicated at the initial stage. Thus, this research aims to explore the gaps in
the law which hinder the nurturing of PP at the project approval stage to foster informed decision-
making in the EIA process. This research will be conducted as exploratory research using both
primary and secondary sources, exerting a qualitative approach. The findings reveal that Sri Lanka
initially attempted to incorporate PP on an ad-hoc basis and later incorporated it into legislative
enactments. However, the method used to incorporate the PP, the duration of such participation,
utilisation of the comments of the public, addressing the concerns of the public, accountability and
transparency, the role of the expert panel in the process, and so on are not constructively aligned
to meet the objectives of PP. Therefore, in light of the said context, the standard of adherence to
the concepts of Participatory Democracy and Environmental Justice descended immensely. Thus,
the author attempts to comparatively analyse the issue with the legal background of selected
countries and recommend legal requirements that can be introduced to the Sri Lankan system to
enhance the quality and effectiveness of PP in the EIA process in Sri Lanka.
Keywords: public participation, environmental impact assessment, environmental justice, decision
making, participatory democracy
36
Inclusivity of Animal Protection within the Undergraduate Legal Education in
Sri Lanka
Dulki Seethawaka
In the contemporary world, animals are legally recognised as sentient beings, and developed
nations are implementing laws and policies to safeguard the rights of all animals. This global
initiative has bridged animal protection with many branches of law including environmental,
constitutional, criminal, international, trust, tort, family, landlord and tenant, consumer protection,
entertainment, and protective order law, etc. Although known as a compassionate country to all
living beings, animal protection in Sri Lanka is strictly limited to a few enactments on
environmental law, which include archaic provisions to protect the interests of people, rather than
of animals. One of the main reasons for this extremely slow-paced progress in the animal law
regime in Sri Lanka is that law on animal protection is not taught in either undergraduate or
postgraduate legal education in the country. Providing an opportunity for undergraduate and
postgraduate law students to study animal laws would promote animal advocacy, encourage
academia to engage in advanced legal research on animal rights and welfare, and expedite the
implementation of timely laws and policy reforms on safeguarding animals in Sri Lanka.
Accordingly, the research hypothesis is that there is a lacuna in teaching animal rights and welfare
laws within the existing undergraduate legal curriculum in Sri Lanka. Thereby, the research first
investigates the protection granted to animals in the existing legal framework and undergraduate
legal curriculum in a selected number of universities in Sri Lanka. The research then analyses the
global developments on how animal protection has been incorporated within different legal
divisions and undergraduate legal education frameworks in other jurisdictions including India and
the United Kingdom. Thereby, recommendations have been provided to include animal protection
within diverse branches and undergraduate legal education in Sri Lanka, thereby making a
significant contribution to create a future generation that is more compassionate towards animals
and their sentiments.
Keywords: legal education, animal protection, promote awareness
37
The Accountability of International Legal Institutions over the Russian
Intervention in Ukraine: A Critical Analysis
Theshani Milindi Weligamage
Russia’s gratuitous military intervention in Ukraine has drawn extensive legal scrutiny as a flagrant
issue in the realm of international law and global security. Presently, there is widespread
international consensus for the prosecution of crimes committed in the context of the war at
appropriate legal fora. Despite the attempts of a multitude of international legal institutions to
address this exigent concern, the war has witnessed no cessation. As a consequence, this has
unequivocally called into question the accountability and effectiveness of existing legal
instruments and institutions in the field of international law. This research paper aims to delve into
a timeous critical assessment of the accountability of international legal institutions over the
Russian invasion of Ukraine. The article presents a critical analysis of the responses of numerous
legal institutions in international law towards the Russian invasion of Ukraine; namely the
International Criminal Court (ICC), the International Court of Justice (ICJ) and the United Nations
Human Rights Council (UNHRC). The study is based upon doctrinal research methodology, and
the author has engaged in a rigorous analysis of statutes, legislation, commentaries, scholarly
articles, journals and other legal documents to fulfil the objectives of the research paper. The author
analyses the legitimacy, feasibility and efficacy of the propositions determined by the aforestated
institutions based on the research findings and discusses the obligation of international legal
institutions to take proactive action in addressing this indispensable challenge to international
security. The author then analyses the challenges faced by these legal institutions and the
plausibility of further strengthening them while underlining the compelling need to ensure
accountability of the law in the face of global conflict.
Keywords: Russia-Ukraine war, international legal institutions, accountability, international
securi
38
Establishing the Outer Edge of the Continental Margin and the ‘Sri Lanka
Problem’ under the Law of the Sea: A Third-World Perspective
M. A. M. Hakeem
The United Nations Convention on the Law of the Sea of 1982 (UNCLOS) establishes the legal
framework for delimiting various maritime zones. The concept of the Continental Shelf is one of
the innovative concepts of UNCLOS. In the Third Conference of the UNCLOS, Sri Lanka raised
objections to the application of the Irish formula, on the delimitation of her continental shelf
margin, based on the grounds that it has its own unique features and that the application of the
Irish formula would be inequitable in certain circumstances. In the case of Sri Lanka, she would
have to concede areas nearly five times in excess of minimum economic thickness. However, the
UNCLOS lays down a normative framework relating to the continental shelf from Article 76 to 85
in line with the Irish formula. Article 76 of the UNCLOS determines that the foot of the continental
slope is one of the significant features in establishing the outer limits of the continental shelf.
Therefore, this study critically analyses customary practices of States and reviews the existing
literature on the maritime claims for establishing the outer edge of the continental margin and as
to why and how such a western formula has been accepted as a norm of UNCLOS. At the same
time, alternative suggestions were made as an exception in the case of Sri Lanka. The study
concludes that, in order to serve justice and fairness, adopting the alternative perspectives to the
western international norms, i.e., Third World Approaches to International Law (TWAIL)
approach, shall be judicious in light of equitable solution with special reference to the maritime
claim of Sri Lanka on the extended continental shelf beyond 200 nautical miles.
Keywords: law of the sea, outer edge of continental margin, Sri Lanka problem, TWAIL
39
Digital Transformation and Land Law and its Teaching: A View from Sri
Lanka
M.D.M. Abeyratne
Present worldwide since the 1990s digital age, digital transformation occurs when institutions
innovate their operational models using digital technologies of electronic tools, systems, platforms,
devices, and resources which generate, store, or process data to create a competitive edge,
increased market relevance and enriched customer experience. Digital transformation gained
sudden visibility when the COVID-19 pandemic forced its accelerated adoption globally, as
institutions pivoted to online Work From Home strategies and online academic activities,
particularly in the higher education sector, to reduce productivity and economic loss resulting from
measures introduced to curtail spread of disease. To examine the exploratory question whether
digital transformation can mitigate challenges, three phenomena were studied in the context of
land law taught at a state university level in Sri Lanka. Firstly, 2020s high visibility accelerated
the digital transformation of university academic activities. Secondly, a much earlier globally
evident digitising of land records, land administration and land services where progress is seen as
slow and fragmentary. Thirdly, syllabus content of land law, pivotal to the subject’s academic
activity, where no digital transformation is evident. The analysis focuses on whether digital
transformation’s mitigatory ability is diminished on three grounds: firstly, constraints on its long-
term sustainability or rapid launch; secondly, self-generated negative consequences; and thirdly,
imperviousness of some system elements to digital transformation. Findings were that digital
transformation’s mitigatory ability is weakened by firstly, constraints of insufficient funding and
lack of readily digitisable matter; secondly, self-generated negative consequences of privacy and
surveillance issues; and thirdly, imperviousness of some operational elements, as doctrinal content
of land law syllabus, to digital transformation. Literature review reveals the paper is original
research for Sri Lanka. This exploratory research shows digital transformation may not mitigate
challenges in every instance even though digital technological capabilities exist.
Keywords: digital technology, land records, law teaching
40
3D Bioprinting and the Concept of Ownership: Challenges and Prospects
Analysis in the Field of Property Law Regime
B.M. Munasinghe
Three-dimensional bioprinting or 3D bioprinting is a field which has been developed due to the
advancement of biotechnology engineering. Indeed, it has a significant impact on the field of
biomedicine. Even though this field can be identified as an emerging field of law, the impact of
this field has immense importance in the law of property, including intellectual property law and
data protection laws. The issue of ownership coming under the property law is one of the
controversial issues that is integrally linked to this subject, particularly the usage of patient data
and resources required to continue the 3D printing process, as well as the stimulation of non-
therapeutic applications by data. Moreover, the security of data and privacy is another legal
challenge for three-dimensional printing. Therefore, 3D printing in the field of biomedicine poses
substantial regulatory and social-ethical hurdles. Existing European Union regulations are the most
recent law pertaining to human bioprinting compared to the vast majority of other ownership laws.
Other existing laws and treaties, such as the Universal Declaration of Human Rights and the 1997
Universal Declaration on the Human Genome and Human Rights, are inadequate for addressing
issues of ownership and control over human bio-printed creations. The objective of this paper is
to analyse how the ownership and possessory rights in the field of 3D bioprinting have been
impacting the traditional common law and civil law aspects of property law, which totally declines
to grant any ownership rights over human biomaterials by using qualitative methods of research.
Keywords: 3D bioprinting, ownership, possession, property law
41
Harmonisation or Diversification: Intestate Succession Rules under Private
International Law with special reference to Thesawalamai in Sri Lanka
M.P.S. Kaushani Pathirana
The rules of intestate succession under private international law have consistently adhered to the
conclusion that the destination of movables on the death of the owner is governed by the law of
his domicile (lex domicilii), whereas the destination of immovable is governed by the law of the
place where the property is situated at the time of his death (lex situs). Although there is unity in
private international law about the intestate succession of property, practical problems will arise
when applying these rules in situations where multiple personal laws apply in countries like Sri
Lanka. For instance, a person who governs under Thesawalamai should obtain a continuous and
permanent domicile in the Jaffna Province (Jaffna inhabitancy) to obtain his succession rights
under Thesawalamai law (as per Sivagnanalingam v Sunderalingam of 1988). Suppose a person
who governs under the Thesawalamai lives abroad for several years and dies in that country,
leaving his property both in Sri Lanka and abroad. In that case, there will be several problems in
proving his permanent domicile in Jaffna, which is an essential requirement in applying the
Thesawalamai for the deceased person’s intestate succession. Sri Lankan law consists of a
conglomeration of transplanted laws made up of a mixture of Roman-Dutch Law and English Law,
as well as indigenous laws referred to as Kandyan Law, Thesawalamai and Muslim Law.
Nevertheless, there is no proper mechanism in Sri Lanka to harmonise these laws, as any
harmonising mechanism can be contradicted the fundamental rights of the persons who govern
under personal laws. This research proposes a proper mechanism to unify or harmonise the rules
of intestate succession in Sri Lanka using the principles of private international law (unity of
succession rule), which is the primary problem-solving mechanism used by many other countries
in these types of private international law issues.
Keywords: private international law, intestate succession, legal pluralism, Thesawalamai, Sri
Lanka
42
Achieving Sustainable Development Acknowledging Gender Dimensions:
Digital Financial Inclusion for Women’s Economic Empowerment
P.R. Wijetunge
Women’s role in development is a widely researched topic. Further, concepts such as development,
poverty, financial inclusion (FI) and digital financial inclusion (DFI) have been looked into in
isolation by researchers. However, substantial research is pending on the topic of how DFI
contributes to women’s economic empowerment (WEE) for sustainable development (SD) in an
age of digitalization, particularly in Sri Lanka. In light of the findings derived from in-depth
analysis of the interplay, interdependence and interrelationship between and among development,
poverty, FI and DFI, this research attempts to ascertain the extent to which DFI paves the way for
SD focusing on women with an emphasis on the Lankan woman. The modality adopted is desk
research. It delves deep into the aforementioned interrelationships between and among the
different aspects to present an overarching picture to lay out the basis of the contention.
Accordingly, in the discussion, firstly, the gendered dimensions of poverty and development are
analysed to establish how SD can be achieved through WEE and the role of FI. Subsequently, in
keeping with the spirit of the research problem, the research investigates how the DFI regime
contributes to WEE, thus enable SD where conventional FI fails. Finally, the analysis concludes
that for gender justice on the economic front to achieve SD, promoting DFI is a promising
approach. Hence, in an age of digitalization confronted by challenges such as COVID, DFI features
as a true catalyst in the banking sector. In this context, the findings of this research will facilitate
the conversation among academia and professionals on the need to factor in and prioritise DFI in
implementing SD programmes that target gender dimensions, especially in the context of the
Lankan woman.
Keywords: financial inclusion, digital financial inclusion, sustainable development, women’s
economic empowerment
43
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