Law / Events

Trading, governing and living electronically

The Electronic Transactions Act No. 19 of 2006, which was certified in May this year, though printed copies of the of the Act were available only this week, makes significant changes to the law relating to the use of information technology.
Imagine filling out forms electronically in government departments and browsing through the government gazette in your computer. For, that is what the new law provides.
The Act seeks to recognize and facilitate the formation of contracts, the creation and exchange of data messages, electronic documents and Electronic records and other communications in electronic form in Sri Lanka.
Several provisions of this Act are based on the UNCITRAL Model Law on e-Commerce, the Model Law on e-Signature and the UNCITRAL Convention on the use of Electronic Communications in International Contracts.
Wherever the law in Sri Lanka requires a document to be in writing, that requirement will be met if a data messages, electronic documents, electronic record or other communication in electronic form contains the information and any of these items can be accessed for subsequent reference. In other words a hard copy will not be needed.
Even where the law requires original documents to be presented, the requirement will be satisfied if the information is in electronic form provided “there exists a reliable assurance as to the integrity of the information from the time when it was made available in electronic form”. The criterion for integrity of information and standard for reliability are set out.
A significant feature of the law is the recognition of electronic signatures. An electronic signature in Sri Lanka will have the same legal validity as a written signature or mark on a document – a feature that will be of much use in commerce.
Section 8 of the Act which deals with the use of electronic records and electronic signatures in government institutions and public bodies will certainly be a fillip for e- Governance in Sri Lanka. The filling of any forms or applications in a government institution, the issue of any license, permit or approval and the receipt of payment of money can be done in the form of electronic records. Specific regulations can be promulgated for the proper implementation of these provisions.
Even the government gazette can be accessed by your computer and there is provision to publish in an electronic form of the gazette anything that is required by law to be published in the gazette.
The new law, though, however revolutionary, doesn’t permit a person to insist that a government institution should accept or issue a document in the form of electronic records or to effect a monetary transaction in electronic form.
Moving away from e- Governance, the Act also provides for the formation of contracts electronically. In other words, an offer and an acceptance may now be expressed in electronic form. The new law does not interfere with the common law principle whereby the person making the offer can prescribe the method of acceptance.
But, how does one know whether the offer was made by the offeror (the person making the offer)? Did the other party receive the offer? The Act lays down rules to determine these questions.
The use of information technology has had a huge impact on the rules of evidence. The enactment of Evidence (Special Provisions) Act No.14 of 1995 deal with a number of evidence related issues that had not been specifically addressed by the law in Sri Lanka. The new law specifically excludes the application of Act No.14 of 1995 to “any data message, electronic document and electronic record or other document to which the provision of this Act applies”.
Where information is available in electronic form it may be admissible as evidence in court even though the maker of this information is dead or is unable to attend as a witness, is outside Sri Lanka and cannot be found even though reasonable steps have been taken to find him, does not give oral evidence through fear or is prevented from giving evidence.
The court may also, unless rebutted, presume the truth of information contained electronically, that it was made by the person purported to have made it and will also presume the genuineness of any electronic signature or distinctive identification mark.
The Act will not apply to last wills, a license for a telecommunication system, a bill of exchange, a power of attorney, a trust (excluding constructive, implied or resulting trusts), a contract for the sale of immovable property or any interest in such property and any other document specified by the Minister. The law does not envisage an electronic form for these documents, which will be required in paper form for legal validity.
It also provides for the appointment of a certification authority and accreditation of certification service providers and to provide for matters connected therewith or incidental thereto.
Among the objectives of the Act is to facilitate domestic and international commerce, to encourage the use of reliable forms of electronic commerce, to facilitate electronic filling of documents with government and to promote efficient delivery of government services by means of reliable forms of electronic communication and to promote public confidence in data messages, electronic documents and electronic records
This law is an important piece of legislation that can have far reaching implications in the way things are done both in the public and private sector. Whether the objectives of this law would be met will also depend upon the implementation of the law and the way it is interpreted in our courts of law.
JM

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No ICJ presence at Muttur inquest

Press release issued this week by the International Commission of Jurists
The International Commission of Jurists (ICJ) expressed deep concern after the Sri Lankan Government informed it that the ICJ’s official representative would be prevented from entering the country to observe the inquest into the killing of 17 Action Internationale Contre la Faim (ACF) aid workers in Muttur in August.
“It is regrettable that the Government has chosen not to allow our independent international observer to attend this vital inquest”, said Nicholas Howen, Secretary-General of the ICJ.
“At a time when the High Commissioner for Human Rights and the Special Rapporteur on extrajudicial executions have warned that investigations and accountability mechanisms have failed to bring justice to victims in Sri Lanka, it is particularly important for the Government to demonstrate that every stage of its processes, including inquests and trials, are open, transparent and credible”, he added.
The ICJ had informed the Sri Lankan authorities that it intended to send a senior British based lawyer (Queens Counsel), to observe the inquest. However, the ICJ was informed that it could not observe these hearings and that its representative would not be granted an appropriate visa if he applied.
The ICJ sends observers all over the world to assess whether legally-related proceedings are carried out in line with national and international standards. Most recently the ICJ observed an inquest in Thailand. One of the international standards relevant to an inquest are the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions.
The Sri Lankan Government has invited the Australian Government to provide technical forensic expertise for the investigation into the deaths, as and when specifically requested by Sri Lanka. But the Australian forensic team is not mandated to observe the proceedings, assess whether they comply with international standards, or to report publicly. Such necessary technical assistance is not a substitute for independent observation.
Inquests in Sri Lanka are carried out under the Code of Criminal Procedure Act No. 15 of 1979. This Act states that such inquiries shall be open to the public. The inquirer, however, can, on a case-by-case basis, decide to exclude the public in very limited and exceptional circumstances.
Seventeen aid workers from Action Internationale Contre la Faim (ACF) were killed in and around their office in Muttur, Trincomalee on or around 5 August 2006. The inquest, which began in the Muttur Magistrate’s Court, was transferred to the Anuradhapura Magistrate’s Court in early September. The inquest recommenced on 20 September, when the presiding magistrate summoned the witnesses to appear before him on 4 October, in Kantale. The ICJ called on the Government of Sri Lanka to ensure witnesses are properly protected against threats to their lives and well-being.
The ICJ said that this inquest should be the first stage in the process of establishing the cause of death of these 17 Sri Lankan aid workers, identifying who was responsible for their execution-style killings and commencing prosecutions against those responsible.

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Civil appeal powers for High Courts

The Government will shortly introduce an urgent Bill in Parliament to bring in legislation that will confer the High Courts with powers to hear civil appeal cases.
This follows in the wake of the government’s failure to pass the 18th amendment to the Constitution, which required a 2/3 majority in Parliament for its passage.
The 18th amendment sought to set up regional courts of appeal in selected areas of the country in order to ease the backlog of appeal cases in the Court of Appeal.
However, this amendment could not be effected as the opposition United National Party refused to extend its support to the government when the matter was taken up in Parliament several months ago. The opposition’s main contention appeared to be as to who would exercise the power of appointment and transfer of the judges of the proposed regional courts of appeal.
Chief Justice Sarath N Silva confirmed that speedy legislation would be introduced to enable High Courts to hear civil appeals in order to deal with the delay in hearing cases in the Court of Appeal.
At present, High Courts which are constituted in every province do not exercise civil appellate jurisdiction, which is confined to the Court of Appeal and, by way of further appeal, to the Supreme Court. Criminal and labour are the appeal matters that are heard by the High Court at present.
There are approximately 13, 500 cases that are pending in the Court of Appeal. The figure has steadily risen from 12,000 cases about a year ago and 8,000 about 5 years ago. A continuation of this trend, observers point out, could result in the entire legal process being undermined.
It takes about seven or eight years before a civil case, the judgment of which has been appealed, is taken up for hearing in the Court of Appeal. Although a hearing can be accelerated by making an application to court showing valid reason, it is only exceptionally that such applications are allowed.
The backlog in the Court of Appeal is made use of by unscrupulous litigants to delay the judicial process and thwart the affected party from getting effective relief.
The new high courts of appeal are likely to be directed by the Chief Justice to conclude their hearings of cases within 3 years.
Two High Court judges are expected to sit in eight different parts of the island. Galle, Matara, Kurunegala, Chilaw, Kandy, Trincomalee and Batticaloa are likely to be the designated areas for sittings of the regional high courts of appeal.
The Chief Justice will designate senior judges of the High Court to function as appellate judges. The setting up of the proposed high courts of appeal will be facilitated by the fact that the increasing of cadre of high court judges will not have the same restrictions as with the Court of Appeal, where the number of judges is fixed by the constitution.
Rules of the Supreme Court which are applicable to the Court of Appeal and the Supreme Court in appealing judgments of the lower courts will be extended to cover the proposed high courts exercising civil appellate jurisdiction.
An appeal against a judgment by the proposed high courts an be made to the Supreme Court and not to the Court of Appeal, as in the case of appealing judgments of the Commercial High Court based in Colombo.
If the proposed legislation is passed in parliament and the high courts of appeal are introduced, it is likely that public confidence in the legal system itself will increase if, as a result, appeal cases can be heard and concluded expeditiously. If implemented diligently, the dreaded delays in our legal system can be effectively arrested.
JM

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New law on tobacco and alcohol

By Dharmapala Senaratne
It is heartening that the National Authority on Tobacco and Alcohol Act No. 27 of 2006 was passed in Parliament without opposition and certified by the Speaker on 29th August 2006.
True. The constitutionality of some of its provisions was challenged before the Supreme Court by the tobacco tycoons at its Bill stage. But, the Court was of the view that they required no special majority in Parliament for its passage nor was a Referendum necessary for its enactment.
This piece of legislation was long overdue. Indeed, similar legislation has been in existence in most other jurisdictions over a long period of time.
An estimated 400,000 Americans die each year through smoking related diseases. On a global scale, the figure stands at a staggering 3 million.
Indian health authorities have expressed alarm over the increasing incidence of mouth cancer and sub-mucous fibrosis, resulting from chewing tobacco. Hand rolled tobacco, called beedies in India and believed to be more harmful than cigarettes, has been a matter of similar concern.
Under our new Act, there shall be established a National Authority on Tobacco and Alcohol. It consists of 14 members, 9 to be nominated and 5 to be appointed by the Minister. This Authority is a body corporate having perpetual succession.
The Authority is invested with a multitude of functions and powers, intended for the implementation of a national policy on tobacco and alcohol.
What is of more concern for the general pubic would be some of the offences newly created by the Act. Thus, ‘a person shall not sell, offer for sale, or permit or promote the sale of any tobacco product or alcohol product to any person under twenty one years of age’. (Section 31) The contravention of the provision will bring forth a criminal conviction.
In some countries such as the UK, USA and New Zealand, the age limit is only 19 years but the law is more elaborate. For example, provisions have been made for the vendor to demand documentary proof of age in case of any doubt.
Interestingly, accessories such as cigarette lighters, roll-wrapping paper, etc. are included in such prohibited items of sale in New Zealand. Similarly, selling packs of less than 20 cigarettes is made an offence on the assumption that retail sale of one or two units would encourage smoking.
United Kingdom went so far as to bring in a separate law called Children and Young Persons (Protection from Tobacco) Act in 1991. Many are unaware that there is also a very strong temperance movement in England and a stronger one in Scotland.
Our Act requires the manufacturers of tobacco products to display, conspicuously and in easily legible print, on every packet, a label of such dimensions as may be prescribed, a statement of the tar and nicotine content of the product. There should also be the prescribed health warning similarly displayed.
Public advertisements of tobacco and alcohol products have also been prohibited. The legislature has taken pains to stretch the meaning of ‘advertisement’ to cover a very extensive area.
It has been shown in surveys in several countries that restrictions on advertising have drastically cut down the overall national consumption of alcohol and tobacco. There is no reason why it should be otherwise in Sri Lanka. This is, therefore, a welcome provision.
Section 39 has made it an offence to smoke in any ‘enclosed public place’ which expression pervades over a wide area, including even an airport or hotel, according to its definition.
The Act further stipulates that every manufacturer or importer of a tobacco product should conduct tests from time to time in consultation with the Government Analyst to ascertain the constituents and their quantity of such product. They should then send such details to the Authority.
In the case of offences under the Act, the prosecution can be conducted by any officer authorized by the Authority in writing. The relevant forum is the Magistrate’s Court.
There have been many world famous instances of litigation against tobacco giants. For example, in 2002, RJ Reynolds Tobacco Holdings Inc. in the United States was fined 15 million dollars for handing out free cigarettes at events attended by children. They were again fined 20 million dollars for publishing advertisements in youth magazines.
In 2001, Phillip Morris Tobacco Company was ordered by court to pay to Richard Boeken, a patient of terminal cancer resulting from smoking, 3 billion dollars, the largest ever such award. But Boeken died of lung cancer soon thereafter before receiving the compensation!
Can we, too, now anticipate similar litigation in Sri Lanka?
The writer is an Attorney at Law