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Opinion


‘Doha Development Agenda’ launched

Issues arising from the Doha agenda have been repeatedly delayed because of disagreements between developed and developing countries. Developed countries are demanding that developing countries further open up their markets for free trade, while developing countries want to protect important sectors such as agriculture and also for developed countries to give more access to exports from poorer countries.

The international trade law conference ‘The Doha Development Agenda and the Future of the Multilateral Trading System’ organised by the Sri Lanka Law College, scheduled to be held in Colombo, Sri Lanka from July 30 to August 1, 2007, was launched at the Sri Lanka Law College auditorium last Tuesday amidst a distinguished gathering.
Chief Justice Sarath N. Silva PC was the chief guest at the launch. Judges of the Supreme Court and the Court of Appeal, the principal and staff of the Sri Lanka Law College and senior members of the Bar.
In his address the Chief Justice, while underlining the importance of holding a conference of this nature, called upon the business community to take an active interest in the implications of the deliberations and decisions taken at conferences of the World Trade Organisation, as these would eventually impact upon the economy of Sri Lanka and the country’s business community. He said that Sri Lanka must study the trade law and know how it operates to take advantage of international trade.

This conference will seek to address some of the critical issues referred to in the Doha Development Agenda as well as the future challenges for the multilateral trading system. Several renowned experts from the United States, European Union, India and Sri Lanka consisting of policymakers, academics and professionals of outstanding calibre are due to present papers on areas such as trade in agricultural products, non-agricultural products, services with focus on telecommunication, banking and financial services, trade and development, WTO and regionalism, dispute settlement, trade, the environment and sustainable development.
The 2001 declaration of the Fourth Ministerial Conference in Doha, Qatar, provides for negotiations on a range of subjects such as agriculture, subsidies, textiles and clothing, technical barriers to trade, trade-related investment measures and rules of origin.

The conference is expected to be of immense interest and benefit to a diverse group including the business community, policymakers, government officials, economists, legal practitioners, academics, non-governmental organisations, diplomats, students, consumer groups and the media.
The multilateral trading system has seen significant changes over the last five decades. The General Agreement on Tariffs and Trade (GATT) as it is commonly referred to, sought to raise the standard of living, develop the full use of the resources of the world and expand the production and exchange of goods. These objectives were sought to be achieved by entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and discriminatory treatment in international commerce. The tariff negotiations held within the framework of GATT resulted in significant tariff cuts coupled with tariff bindings leading to a substantial rise in security in the world trading system. However, there were several outstanding issues that needed to be addressed in the agriculture, textile and clothing sectors. In this context the Uruguay Round of Negotiations was an important landmark for the multilateral trading system. It resulted in a new international legal body, the World Trade Organization or WTO as it is commonly referred to, coming into existence. Several new disciplines such as Trade-Related Intellectual Property Rights, Trade in Services, Trade-Related Investment Measures were brought within the framework of the WTO. Reforms were made in the agriculture, textile and clothing sectors. A more functional dispute settlement procedure was established.

It is imperative that the WTO addressed the needs of the developing countries in a tangible and dynamic manner. Having failed to do so in Seattle, the WTO in 2001 adopted the Doha Declaration, which having acknowledged that the majority of its members were from the developing world, sought to place their needs and interests at the heart of the work programme adopted in the Declaration. In agriculture, the members committed to comprehensive negotiations in three important areas, namely market access, domestic subsidies and export subsidies. In non-agricultural products, members are aiming to reduce or as appropriate eliminate tariffs as well as non-tariff barriers, in particular on products of export interest to developing countries. However, the negotiations have stalled over several critical issues, mainly on agriculture. This certainly does not augur well for developing countries as well as the multilateral trading system as a whole. Even if there is a successful conclusion of the round, some studies suggest that the overall gains may not be as productive as projected by some experts. In Winners and Losers: Impact of the Doha Round on Developing Countries published by the Carnegie Endowment for International Peace, it is said that while there are both net winners and net losers under different scenarios, the poorest countries are among the net losers under all likely Doha scenarios.
There will be eight plenary sessions, four each day, on July 31 and August 1, 2007. Each session will have three or four experts drawn from local and foreign resource personnel presenting papers. The conference website is www.wtoconference-srilanka.org

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US Supreme Court rules on global warming

United States Supreme Court in a landmark decision last week on a 5-4 majority on global warming called upon the US government to take measures to prevent potentially calamitous consequences. The case, Massachusetts vs. the Environment Protection Agency (EPA) concerned pollution caused by motor vehicles.
Justice John Paul Stevens wrote the majority opinion emphasising the US contribution to climate change and the potentially grave consequences.

“A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere,” Justice Stevens said.
To date, Justice Stevens said, the Environmental Protection Agency has offered a ‘laundry list’ of reasons not to regulate those emissions. The Court stopped short of ordering the Agency to intervene, and clearly indicated that it found the Bush administration’s efforts to minimise global warming, inadequate.
Justice Stevens’s opinion was disputed by Chief Justice John Roberts and three conservative colleagues. However, the decision is expected to expedite action by Congress on climate change.
The US Supreme Court last year agreed to hear its first case on global warming with increased lobbying for action to be taken by the government, although the administration has preferred voluntary action rather than new regulation.
The US Supreme Court’s decision is also likely to have an impact on automobile manufacturers as stricter emission limits are likely to be introduced.

Carbon dioxide from burning fossil fuels is the principal heat-trapping ‘greenhouse’ gas that could lead to significant warming of the earth, rising sea levels and other ecological changes.
Carbon dioxide is produced when fossil fuels such as oil and natural gas are burned. One way to reduce those emissions is to have more fuel-efficient cars.

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C.R. De Silva new AG

Solicitor General C.R. De Silva, President’s Counsel, was appointed Attorney General this week. He was first appointed Solicitor General with effect from October 15, 1999. He received his secondary education at Royal College, Colombo, where he excelled in both studies and sports. Mr. De Silva Captained Royal College Rugby Football team in 1968 and they were adjudged school champions. In the same year, he captained the Ceylon Schools Rugby Football team.

After leaving school, Mr. De Silva joined Sri Lanka Law College and he was called to the Bar in 1974. He devilled in the chambers of Mr. A.C. De Zoysa, PC and later worked in the chambers of Mr. Daya Perera, PC.
Having joined the Attorney General’s Department in September 1975 as State Counsel, he was promoted as Senior State Counsel in 1983. Subsequently in 1992, he was appointed as a Deputy Solicitor General. On December 24, 1996 he was appointed as Additional Solicitor General and subsequently on March 27, 1997, he was called to the Inner Bar as a President’s Counsel.

Mr. De Silva successfully completed a course in Criminal Justice at the University of Illiouis in USA in 1990. He has also been a member of several Sri Lankan delegations to various international bodies including the Afro-Asian Legal Consultative Committee Meeting held in Islamabad in 1993, UN Human Rights Council, UN Human Rights Committee, UN Convention Against Torture Committee, UN Committee for the Convention on the Elimination of Racial Discrimination. He also served as Lecturer and Examiner at the Sri Lanka Defence Academy, Kandawala. He also functioned as an Examiner at the Sri Lanka Law College.

During the last decade, Mr. De Silva has appeared in some of the most sensational cases, which had generated public interest and concern. Some of the important cases he prosecuted are as follows;
a. Where the Deputy Commissioner of Examinations was convicted for the falsification of GCE Examination results
b. The appeal in respect of the murder of Senior Customs Officer Amarapala, where the conviction was affirmed
c. The appeal in respect of the murder of Tony Martin, where the conviction was affirmed
d. The appeal in respect of the beauty queen of the Kobaiganne, where the conviction was affirmed
e. The Trial at Bar in respect of the rape and murder of an Indian national Rita John Manoharan, where all the accused were convicted
f. The abduction and extortion Rs. 20 million from G.C. Wickramasinghe, where 13 accused were convicted and sentenced to periods of imprisonment ranging from 60-80 years
g. Trial at Bar in respect of the murder of Justice Sarath Ambepitiya, where all accused were convicted and sentenced to death
h. Appeal in respect of the murder of Justice Ambepitiya, where the conviction and sentences were affirmed by the Supreme Court
i. Where the order of the Deputy Commissioner of Elections rejecting the list of candidates of the UNP at the Colombo Municipal Council Elections 2006 was challenged. The Court of Appeal upheld the decision of the Commissioner of Elections. The judgment of the Court of Appeal was affirmed by the Supreme Court
He was also associated with the Fr. Mathew Peiris’ case both in the original Court as well as the Appellate Courts.
Mr. De Silva had been a member of the Child Protection Authority. He was also member of Drug Control Board. In addition, Mr. De Silva was a member of the Committee of Inquiry appointed by Her Excellency the President to examine causes relating to the accidents and loss of aircraft of the Sri Lanka Air Force.
Mr. De Silva hails from an illustrious legal background - his father Justice K. D. De Silva was a Judge of Supreme Court and his two elder brothers are active practitioners in the civil courts of this country.

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New lease of life for legal aid

By Dharmapala Senaratne
The welfare state of Sri Lanka has made education, health care, etc. available to all citizens free of charge, unlike most of the western countries, for the reason that the vast majority in the country are unable to afford these on their own.
Justice is yet another area which ought to be made available to all, even though sufficient attention to it has not been paid until recently. The contribution by the state towards legal aid for the needy has always been minimal in comparison with most of the European countries and United States.
Thus, Justice Bhagwati, later to be the Chief Justice of India, observed as follows in 1982 in the celebrated case of Peoples’ Union of Democratic Rights vs. Union of India:

“The Rule of Law does not mean that the protection of the law must be available to only a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcing their civil and political rights. The poor, too, have civil and political rights, and the Rule of Law is meant for them also, though today it exists only on paper and not in reality.”
It goes without saying that these observations are equally valid in the Sri Lankan context as well. For, access to justice is indeed, and has always remained a costly affair in this country as well.
Legal aid, which is a sine qua non for equality of all before the law in a true democracy, is “not a matter of charity or of favour or grace” in the words of an eminent American Judge. “It is a bounden duty of the state towards its citizens. It is a device whereby access to justice is provided to all sections of the people,” he has said.
It is noteworthy, however, that we have had a legal aid scheme for nearly three decades since the enactment of the Legal Aid Law No. 27 of 1978. Yet, successive governments paid little attention for providing sufficient funds for the legal aid scheme until recently.

Nevertheless, lately, the scheme in Sri Lanka has taken a new lease of life under the able chairmanship of the Legal Aid Commission by Mr. S.S. Wijeratne, Attorney-at-Law, and provision of aid by foreign donors such as ADB, UNDP and USAIA.
The LAC is constituted as a body corporate in terms of the provisions of the Law mentioned above. It consists of nine members with three of them appointed by the justice minister and six, nominated by the Bar Council of Sri Lanka.

A Legal Aid Advisory Council has also been established under these provisions with the Chief Justice as its Chairman and 30 other members. Not only are all members of the LAC included in the Council but further the BASL is required to nominate three out of that 30. It would thus seem that the Bar Council and the BASL have a significant role to play in this scheme.
As of now, the LAC is very much vibrant and active with a substantial fund at its disposal. Though the contribution by the government is meager, the foreign aid component of the fund is significant.
The LAC had 27 aid centres round the country by the end of 2005. With eight more centres established in the following year alone, the number has now been increased to 35.

Any person in need of legal aid can now rest assured that he or she can benefit from the LAC by contacting the nearest centre. Creation of an awareness of such availability among the people seems to be a felt need. The LAC has, however, stipulated in terms of powers vested in it under the law that only those with an income of Rs. 6000 or less per month are eligible for such assistance.
Legal aid is thus provided basically in matters of maintenance, divorce, claim of damages in motor traffic accidents, fundamental rights violations, etc. but not in testamentary or partition matters. The latter have been excluded on considerations relating to length of time of litigation.

Giving these details of information, Ms. Kalani Medagoda, Attorney-at-Law, in charge of the Disabled Persons’ Desk at the LAC Head Office, proudly claims that they have now embarked on some 14 other hopeful projects than merely offering legal aid in litigation alone. For, under the law, the objects and functions of the LAC spread over a spectrum of areas.
The writer is an attorney-at-law

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Reader’s Opinion

Mechanism needed to deal with errant lawyers

Recently a friend went before the Bar Association of Sri Lanka (BASL) with a complaint against an attorney-at-law. He complained that a lawyer had forged a deed with which he had defrauded a Muslim organisation. The lawyer is the president of the same organisation.
The complainant had provided documentation to reveal the vast differences in the four signatures the respondent lawyer had forged on documents he had provided to the institution he defrauded to the tune of Rs. 6million.

However, since there was a case pending in the Mt. Lavinia District Court and the CID was inquiring into the complaint of fraud and forgery against the lawyer, the panel decided to take up the case after these matters were concluded. While this is understandable, the question that arises is, shouldn’t the BASL have a mechanism to deal with a lawyer when the CID deems it fit to investigate complaints of fraud and forgery against him?

In the good old days people would step down from posts they held in public institutions or organisations until they were cleared of allegations made against them. Such acts are unheard of in the present day. During the brief proceedings the complainant pointed out to the panel that the lawyer had acted improperly and contrary to law, when he attested two deeds of transfer of properties the organisation had purchased. Usually a violation of law takes a serious turn if a lawyer stakes a claim to a section of a fraudulently acquired land. Interestingly, this was the case with this attorney-at-law.

A retired Supreme Court Judge who had conducted a non-judicial inquiry into the charges said in his report he was ‘horrified that an attorney-at-law should act for both sides while having a vested interest in the transaction’.
The attorney-at-law concerned admits violating these rules and regulations governing the conduct of lawyers, but excused his conduct by claiming he attested the deeds to save on notary fees.
Shouldn’t the BASL act on the admissions of this attorney-at-law? Should the BASL permit errant lawyers to get away when they violate the rules laid down by the Supreme Court and Notaries Ordinance? Or are these violations too trivial to merit any action by the BASL?

The public would like to know from the BASL president if the panel can decide to lay aside such gross violations pending the conclusion of other inquiries. Isn’t the Bar Association answerable to the public? Or is it above the law? Or does it function to protect corrupt lawyers?
BASL president Mr. Nihal Jayamanne must look into this matter if he is sincere in his public pronouncements to cleanse the judiciary of corrupt lawyers. In an interview in the Morning Leader in March 2006 he had said lawyers must not do anything to damage the name of the association. He had added, “We must understand and honour the litigant. It is the duty of the Bar and the Bench to see to it that the litigant does not lose confidence in the judicial system.”

Well, here is an opportunity for him to show he means what he says. We must remember it is not only the corrupt lawyer who is on trial, but also the Bar and by extension, the judicial system itself. It’s not only corrupt lawyers or judges who give the judiciary a bad name. The good lawyers and judges who form an overwhelming majority are also guilty because they refuse to speak out against their corrupt colleagues. They too must be held responsible.
Concerned citizen, Makola

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K.C. Kamalasabayson, PC retires

President’s Counsel, K.C. Kamalasabayson, who served as Sri Lanka’s Attorney General for more than seven years, retired last week.

He served the Attorney General’s Department for the past 33 years.
The former Attorney General enrolled as an Advocate of the Supreme Court of Sri Lanka in 1972. He joined the AG’s Department in 1974. While in the AG’s Department he obtained an LL.M from the prestigious King’s College, London. He was appointed the Attorney General in 1999.
K.C. Kamalasabayson took Silk in 1996.

He has appeared for the state in several high profile constitutional, public law and commercial cases. He has represented Sri Lanka in a number of international arbitrations and also skillfully negotiated several international commercial contracts and extradition treaties.

He also saw through a turbulent time in Sri Lankan politics during his tenure as the Attorney General, which included a sensitive period when the executive President and the Prime Minister were from different political parties. A former Thomian, K.C. Kamalasabayson will be remembered for the high professional standards he maintained in the AG’s Department, his integrity and warmth quite apart from his skills as an attorney.
The former Attorney General’s birthday falls today.
See interview on page 4

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